Givens v. Wilson Trailer Company et al

Filing 29

ORDER granting in part and denying in part 15 Motion for Summary Judgment (See Order Text). Signed by Senior Judge Donald E OBrien on 9/30/2014. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DWAYNE GIVENS,
Plaintiff,

No. 13-CV-4002-DEO

v.
WILSON TRAILER COMPANY, DOUG
MASKELL, JOHN KREBER, and
R.J. STOWE

ORDER ON MOTION FOR SUMMARY
JUDGMENT

Defendants.
____________________
I.

INTRODUCTION
Currently before this Court is the Defendants’ motion for

summary judgment filed by Defendant Wilson Trailer Company,
Defendant Doug Maskell, Defendant John Kreber and Defendant
R.J. Stowe.
single

Docket No. 15.

brief,

the

Court

Because the Defendants filed a
will

refer

to

the

Defendants,

collectively, as Wilson Trailer, unless otherwise specified.
The parties appeared for a hearing on September 18, 2014.
After hearing the parties’ arguments, the Court took the
issues under advisement and now enters the following.

II.

FACTUAL HISTORY
In his Complaint, the Plaintiff, Mr. Givens, alleges that

the Defendants committed employment discrimination. Defendant
Wilson Trailer Company is an Iowa corporation located in Sioux
City, Iowa.

Wilson Trailer employed Mr. Givens as a welder

from 2008, until they terminated his employment on January 28,
2011.

Wilson

Trailer

employs

Defendant

Maskell

as

a

supervisor, Defendant Kreber as a human resources director,
and Defendant Stowe as a supervisor.
The general allegation is that Mr. Givens experienced
racial

discrimination

(he

is

African

American,

and

the

individual Defendants are Caucasian), and that the Defendants
retaliated

against

discrimination.

him

for

reporting

the

alleged

The Defendants contend that they fired Mr.

Givens in accordance with the applicable employee handbook
after he received his third written warning.
In support of the Defendants’ allegation that Mr. Givens
was fired in accordance with their policy, the following seems
undisputed.
employment

The Defendants had in place a handbook and other
policies

that

discharged for just cause.

stated

employees

could

only

be

In practice, this meant employees
2

could receive two written warnings in a 12 month period before
being fired, and they would only be fired after the Defendants
issued a third written warning within 12 months.

Wilson

Trailer employees are represented by a trade union and that
union oversaw implementation of the policy described above.
It is undisputed that Mr. Givens received three written
warnings in the 12 month period leading to his discharge.
However, Mr. Givens argues that the final two warnings were
pretextual.

Mr. Givens admits that he received his first

(relevant) written warning letter on February 26, 2010, for
violating

company

policy

another employee.

on

violence

when

he

threatened

There is dispute between the parties

regarding the nature or the legitimacy of first warning.
Mr. Givens received his second relevant written warning
letter on September 28, 2010, for taking a fourth early-out
within

a

six-month

period,

in

contravention

of

Wilson

Trailer’s absence policy that allows three early-outs in a
six-month period.

(Essentially, Mr. Givens left work early

when he was not supposed to.)

It is undisputed that Mr.

Givens received this warning and that the warning was neither
overturned nor expunged. However, Mr. Givens contends that he
3

had asked his supervisor, Mr. Ross, if he could leave early,
and Mr. Ross gave permission.
Givens

did

ask

permission

Defendants conceded that Mr.
to

leave

early.

Mr.

Ross

subsequently discovered that Mr. Givens was not eligible to
leave

early

and

issued

the

second

warning

letter.

The

Defendants admit that the facts giving rise to the second
warning letter involved a mistake on the part of Mr. Ross
because he should not have told Mr. Givens that he could leave
early.

However, the Defendants contend that Mr. Givens could

have taken action to expunge the second warning letter,
including turning the matter over to the union, but he never
did.

As will be discussed in more detail shortly, Mr. Givens

alleges that the second warning was retaliatory because Mr.
Ross had previously been disciplined for a racial incident
reported to Wilson Trailer by Mr. Givens.
Mr. Givens received his third relevant written warning
letter on January 24, 2011, for wasting company time by
putting his food in a microwave oven prior to the beginning of
his break time.

Mr. Givens admits the essential facts of the

third warning; he went to the ‘tool crib’ shortly before the
lunch break was set to begin and began warming his lunch.
4

However, Mr. Givens contends that going to the ‘tool crib’ a
little early was a routine practice among employees and that
the only reason the Defendants issued him a warning for that
incident is that he had recently filed a complaint about coworkers using racially derived profanity.

Defendants contend

that employees were routinely disciplined and warned about
going to lunch early.
Following the third warning, Mr. Givens was given a three
day suspension.

When the warning was neither overturned nor

challenge, the Defendants terminated Mr. Givens’ employment.
Prior to his discharge, Mr. Givens had accused several
employees

of

Wilson

Trailer

of

committing

racial

discrimination and using racially insensitive language.
first incident occurred in 2008.

The

Mr. Givens and another

African American employee were working the night shift when
they discovered a mock up of a noose hanging from a catwalk.
It was eventually determined that Mr. Ross, mentioned above,
tied the noose. (Mr. Ross claimed at the time and, seemingly,
still claims, that the noose was tied for legitimate work
purposes.) Wilson Trailer initially issued Mr. Ross a warning
letter for leaving the noose hanging, but ultimately suspended
5

him for two days.

Mr. Givens filed a complaint arising out of

the noose incident with the Iowa Civil Rights Commission on
August 6, 2008, which was resolved by the Sioux City Human
Rights Commission (“SCHRC”).

The SCHRC found that there was

no reason to doubt Mr. Ross’ explanation that his tying the
knot was not racially motivated.

Additionally, the SCHRC

found that the “noose” did not constitute sever or pervasive
harassment.

Mr. Givens did not appeal that conclusion or

pursue a right to sue letter.
There were two incidents where other Wilson Trailer
employees used ‘the n word,’ and the facts of those incidents
are largely undisputed.

In the first, it was alleged that an

employee, Mr. Peterson, referred to Mr. Givens by that term.
Defendant Kreber called a meeting and discussed the situation
with the parties.

In the second incident, another employee,

Mr. Comstock, allegedly used the same word to refer to Mr.
Givens.

Defendants found that Mr. Comstock did use that word

and terminated his employment. The incident with Mr. Comstock
occurred only a few days before Wilson Trailer terminated Mr.
Givens; and Mr. Givens alleges that his reporting of Mr.
Comstock, and his insistence that Mr. Comstock be fired, upset
6

the

Defendants

terminate him.

and

ultimately

led

to

their

decision

to

Additionally, it seems undisputed that there

were racially offensive things written in the bathroom(s) at
Wilson Trailer.

However, the specific facts about those

writings are not contained in the record.
Others relevant facts will be discussed below.
III.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if the record shows

“there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
R. Civ. P., Rule 56(c).

Fed.

A fact is material if it is necessary

“to establish the existence of an element essential to [a]
party’s case, and on which that party will bear the burden of
proof at trial.”
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322

There is a genuine issue as to a material fact if,

based on the record before the court, a “rational trier of
fact” could find for the non-moving party.

Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
When considering a motion for summary judgment, a “court
must view the evidence in the light most favorable to the
7

nonmoving party . . . .”

Hutson v. McDonnell Douglas Corp.,

63 F.3d 771 (8th Cir. 1995).

This requires a court to draw

any reasonable inference from the underlying facts in favor of
the nonmoving party and to refrain from weighing the evidence,
making credibility determinations, or attempting to discern
the truth of any factual issue in a manner which favors the
moving party unless there is no reasonable alternative.
Matsushita,

475

U.S.

at

587;

and

Morris

v.

City

See
of

Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citing
Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir. 2007)).
Procedurally, the movant bears the initial burden “of
informing the district court of the basis for its motion and
identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th
Cir. 1992) (citing Celotex, 477 U.S. at 323). Once the movant
has carried his burden, the non-moving party is required “to
go beyond the pleadings” and through “affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a
genuine issue for trial.’”

Celotex, 477 U.S. at 323 (citing

Fed. R. Civ. P. 56(e)).
8

In times past, courts suggested that the standard for
summary judgment in employment discrimination cases required
a higher showing than in ‘other’ summary judgment cases.
However, the 8th Circuit rejected that view, stating:
summary judgment is not disfavored and is
‘every
action,’
panel
designed
for
statements to the contrary are unauthorized
and should not be followed. There is no
‘discrimination case exception’ to the
application of summary judgment, which is
a useful pretrial tool to determine whether
any
case,
including
one
alleging
discrimination, merits a trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011).

However, that is not to say that discrimination cases

do not present their own unique challenges.

As Judge Bennett

of this Court recently observed:
experience
teaches
that
thoughtful
deliberation
of
summary
judgment
in
employment discrimination cases is grounded
in the consideration of each case through
a
lens
filtered
by
the
following
observations.
Employment discrimination
and retaliation, except in the rarest
cases, are difficult to prove. They are
perhaps more difficult to prove today-fifty
years after the passage of the EPA, more
than forty years after the passage of Title
VII and the ADEA, more than twenty years
after the passage of the ADA, and nearly
two decades after the passage of the FMLAthan during the earlier evolution of these
anti-discrimination and anti-retaliation
9

statutes.
Today's employers, even those
with only a scintilla of sophistication,
will neither admit discriminatory or
retaliatory
intent,
nor
leave
a
well-developed trail demonstrating it.
See, e.g., Riordan v. Kempiners, 831 F.2d
690, 697-98 (7th Cir. 1987). Indeed, the
Fifth Circuit Court of Appeals recognized
more than thirty-five years ago, that “[a]s
patently discriminatory practices become
outlawed, those employers bent on pursuing
a general policy declared illegal by
Congressional mandate will undoubtedly
devise more sophisticated methods to
perpetuate discrimination among employees.”
Rogers v. EEOC, 454 F.2d 234, 239 (5th Cir.
1971) (later relied on by the Supreme Court
in Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65-67 (1986), as one of the
principal
authorities
supporting
recognition of a cause of action for
hostile environment sexual harassment under
Title VII).
My experience suggests the
truth of that observation. Because adverse
employment actions almost always involve a
high degree of discretion, and most
plaintiffs in employment discrimination and
retaliation cases are at will, it is a
simple task for employers to concoct
plausible reasons for virtually any adverse
employment action ranging from failure to
hire to discharge.
This is especially
true, because the very best workers are
seldom
employment
discrimination
and
retaliation
plaintiffs
due
to
sheer
economics: Because the economic costs to
the
employer
for
discrimination
or
retaliation are proportional to the caliber
of
the
employee,
discrimination
or
retaliation against the best employees is
the least cost effective. See, e.g., id.
Rather, discrimination and retaliation
10

plaintiffs tend to be those average or
below-average workers-equally protected by
Title VII, the ADA, the ADEA, the EPA, or
the FMLA-for whom plausible rationales for
adverse employment actions are readily
fabricated by employers with even a meager
imagination. See, e.g., id. On the other
hand, it is also relatively easy for
disgruntled former employees to claim a
protected basis under federal and state
anti-discrimination laws as a reason for
their discharge when in fact they played no
part. This is true even when the former
employee and/or their counsel believe they
did.
This is what makes deciding these
issues on a paper record daunting.
Pick v. City of Remsen, 2014 WL 4258738, 11-12 (N.D. Iowa
2014).
IV.

ISSUES
Defendants’ Motion for Summary Judgment raises several

issues.

First, the Defendants argue that Mr. Givens’ state

law claims are time barred.

Second, Defendants argue that

individual supervisors cannot be held liable under Title VII.
Finally, Defendants argue that Mr. Givens has failed to set
out

racial

discrimination/hostile

work

environment/

retaliation claims under the applicable standard.
will address these issues below.

11

The Court

V.

ANALYSIS
A.

State Law Claims

Mr. Givens’ first set of claims arise under the Iowa
Civil Rights Act (ICRA). A person claiming to be aggrieved by
an unfair or discriminatory employment practice under the Iowa
Civil Rights Act must first seek administrative relief by
filing a complaint with the Iowa Civil Rights Commission,
which Mr. Givens did.

However, Defendants argue those claims

are time barred.
Iowa Code § 216.16(2) provides in pertinent part:
[u]pon a request by the complainant, and
after the expiration of one hundred twenty
days from the timely filing of a complaint
with the commission, the commission shall
issue to the complainant a release stating
that the complainant has a right to
commence
an
action
in
the
district
court....
I.C.A. § 216.16(2).

Section 216.16(3) provides in pertinent

part:
[a[n action authorized under this section
is barred unless commenced within ninety
days after issuance by the commission of a
release under subsection 2 of this section.
I.C.A. § 216.16(3).

The term issuance is vague and has been

discussed by the Courts before:
12

[i]n Saemisch v. Ley Motor Co., 387 N.W.2d
357 (Iowa 1986), the Iowa Supreme Court
considered the meaning of the words ‘issue
to the complainant’ and ‘after issuance by
the commission’ of a release-to-sue letter
under the Iowa Civil Rights Act. Iowa Code
§ 216.16(2) and (3).
The plaintiff in
Saemisch commenced his action under the
Iowa Civil Rights Act within ninety days
from the date he received his right-to-sue
letter, but ninety-four days from the date
the commission mailed the letter. Id. at
358. The Iowa Supreme Court held that the
plaintiff's ninety days began to run on the
date the letter was mailed to the plaintiff
by certified mail.
Id.
at 359.
In
arriving at this conclusion, the court
considered the dictionary definition of
‘issue,’ which is “‘to cause to appear or
become available by officially putting
forth or distributing or granting or
proclaiming or promulgating.’”
Id. at 358
(quoting Webster's Third New International
Dictionary 1201 (1969)).
Westin v. Mercy Med. Servs., Inc., 994 F. Supp. 1050, 1058
(N.D. Iowa 1998).

As stated in the Defendants’ brief:

[t]he undisputed evidence shows that the
ICRC issued its right-to-sue letter on
October 3, 2012. The right-to-sue letter
itself expressly states as much:
“With
this
Administrative
Release,
the
Complainant has the right to commence an
action in state district court.
That
action must be commenced within ninety (90)
days of the issue date 10/3/2012.”
See
ICRC Right-to-Sue Letter, Bates No. 00113
(emphasis in original), Defendants’ App’x
at 130. And the Plaintiff conceded, in his
complaint, that the right-to-sue letter
13

from the ICRC was issued on October 3,
2012.
See Complaint, ¶ 11, Defendants’
App’x at 124. Thus, any action on Givens’s
ICRA claims would be forever barred unless
filed within ninety days of that date:
January 2, 2013...
(The ninetieth day
after October 3, 2012[,] was January 1,
2013.
Because the limitations period
expired on New Year’s Day, under Iowa Code
§ 4.1(34) the time was extended to include
the next full day: January 2, 2013.)
Docket No. 15, Att. 3, p. 9.
Mr. Givens did not address this issue in his brief.
During the hearing, Mr. Givens’ attorney admitted that the
filing was (a day) late.

Mr. Givens’ attorney merely stated

that he was unfamiliar with filing documents in the Northern
District of Iowa and hoped the Court would excuse his neglect.
It is true that in some cases, the doctrine of equitable
tolling may apply to excuse a late filing.

However, the

concept of equitable tolling is “appropriate only when the
circumstances that cause a plaintiff to miss a filing deadline
are out of his hands.”

Heideman v. PFL, Inc., 904 F.2d 1262,

1266 (8th Cir. 1990).

In this case, Mr. Givens has made no

allegation that late filing was caused by some matter outside

14

his control.1

Accordingly, equitable tolling does not apply

and Mr. Givens’ claims arising under ICRA must be denied.
B.

Individual Supervisors

As set out in the Defendants’ brief:
Givens’s complaint does not clearly state
whether
he
is
alleging
claims
for
violations of Title VII of the Civil Rights
Act
of
1964
against
the
individual
defendants herein:
Maskell, Kreber, and
Stowe.
Cf. Complaint ¶ 43 (“Defendants
retaliated against Givens as set forth
above in violation of 42 U.S.C. § 2000e, et
seq. and Iowa Code Chapter 216.” (emphasis
added)) . But if Givens[] is making such
claims, those claims fail as a matter of
law.
As this Court has recognized, the
United States Court of Appeals for the
Eighth Circuit has repeatedly held that
supervisory employees cannot be held
individually liable under Title VII.
Habben v. City of Fort Dodge, 472 F. Supp.
2d 1142, 1155 (N.D. Iowa 2007)... As such,
any Title VII claims that Givens is
alleging against Maskell, Kreber, and Stowe
fail as a matter of law, and the Defendants
are entitled to summary judgment on those
claims.

1

The Court notes that Plaintiff’s attorney sent the
Clerk of Court’s office an email on the night of January 2,
2014, about filing the present case. However, the Court found
no authority that stated that attempting to the contact the
Clerk of Court’s office, after hours, after a deadline had
passed, would affect the equitable tolling/statute of
limitations analysis.
15

Docket No. 15, Att. 3, p. 10-11.

Again, Mr. Givens does not

address this issue in his brief.
The law, as set out by the Defendants, is correct.
Accordingly, to the extent Mr. Givens attempted to sue his
individual supervisors in their individual capacity under
Title VII, those claims must be denied.
C.

Title VII Claims

Mr. Givens alleges three causes of action under Title
VII:

racial discrimination, hostile work environment, and

retaliation.

The Defendants argue those claims fail as a

matter of law.
1.

The Court will consider each allegation.

Racial Discrimination

Under the Civil Rights Act of 1964 (hereinafter “Title
VII”), it is unlawful for an employer to discriminate against
an employee based on race, color, religion, sex, or national
origin, and “Iowa Courts ... turn to federal law for guidance
in evaluating ICRA.”

42 U.S.C. § 2000e–2.

Title VII also

prohibits retaliation against employees for opposing practices
made unlawful by the act.

Young–Losee v. Graphic Packaging

Intern., Inc., 631 F.3d 909, 911–12 (8th Cir. 2011).

16

A party may prove a discrimination or retaliation claim
through either direct or indirect evidence.

Guimaraes v.

SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012).

Direct

evidence “is evidence ‘showing a specific link between the
alleged discriminatory animus and the challenged decision,’”
which,

in

this

case,

was

Plaintiff's

termination.

Id.

(quoting Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66
(8th Cir. 1997)).

If there is direct evidence linking a

defendant's alleged discrimination with an adverse employment
decision, or there is direct evidence linking an adverse
employment

decision

with

a

retaliatory

judgment is generally inappropriate.

motive,

summary

Id.

Mr. Givens presents no direct evidence of intentional
race

discrimination,

but,

circumstantial evidence.

rather,

bases

his

claims

on

Accordingly, the Court applies the

analytical framework set forth in McDonnell Douglas Corp. v.
Green,

411

U.S.

792

(1973)

to

analyze

Mr.

Givens’

race

discrimination claims.2 See also Gordon v. Shafer Contracting
Co., Inc., 469 F.3d 1191, 1196 (8th Cir. 2006) (providing that
2

Mr. Givens seemingly concedes there is no direct
evidence of racial discrimination by using the McDonnell
Douglas framework in his brief.
17

the McDonnell Douglas burden-shifting framework governs claims
of race discrimination under 42 U.S.C. § 1981).

Under the

McDonnell Douglas burden-shifting analysis, a plaintiff must
first establish a prima facie case of discrimination. Id. If
the plaintiff does so, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for the
allegedly

discriminatory

action.

Id.

If

the

employer

provides such a reason, then the burden shifts back to the
plaintiff to present evidence that the employer's reason was
a pretext for the discriminatory action.
In

order

to

establish

a

prima

Id.

facie

case

of

race

discrimination, Mr. Givens must show that: (1) he is a member
of a protected class; (2) he was meeting the legitimate job
expectations of his employer; (3) he suffered an adverse
employment

action;

and

(4)

similarly

situated

employees

outside of the protected class were treated differently.
Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir. 2012).
With regard to the fourth element, in order to be similarly
situated, “‘the individuals used for comparison must have
dealt with the same supervisor, have been subject to the same
standards,

and

engaged

in

the
18

same

conduct

without

any

mitigating or distinguishing circumstances.’”

Barber v. C1

Truck Driver Training, LLC, 656 F.3d 782, 796 (8th Cir. 2011)
(quoting Wierman v. Casey's General Stores, 638 F.3d 984, 994
(8th Cir. 2011)).
The parties agree to the first and third elements of the
racial

discrimination

American;

and

terminated.

he

did

claim.
suffer

Mr.
an

Givens

adverse

is

an

action,

African
he

was

However, the parties dispute whether or not he

was fulfilling his job duties and whether similarly situated
employees were treated differently.

In his brief, Mr. Givens

argues that he was given pay raises and received positive
evaluations

through

out

his

time

at

Wilson

Trailer.

Accordingly, he argues that he has also proven the second
element of the prima facie case, that he was meeting Wilson
Trailer’s legitimate job expectations.

As will be discussed

in greater detail below, there are serious questions regarding
the second and third warning letter which ultimately led to
Wilson trailer terminating Mr. Givens’ employment.

What is

clear on the record is that none of the warnings get to the
actual issue of Mr. Givens’ job performance.

Accordingly,

because Mr. Givens received positive evaluations and received
19

pay raises, and because his discharge was not related to his
actual job performance, the Court is persuaded that there is
at

least

a

genuine

issue

as

to

whether

Mr.

Givens

has

sufficiently plead the second element. Accordingly, the Court
will concentrate its analysis on whether Mr. Givens has
sufficiently demonstrated the fourth element, whether similar
employees of a different race were treated differently.
To

prove

pretext.

the

fourth

element,

Mr.

Givens

relies

on

Evidence of pretext, normally considered at step

three of the McDonnell Douglas analysis, can satisfy the
inference-of-discrimination element of the prima facie case.
See Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir.
2003).

A plaintiff may show pretext, among other ways, by

showing

that

policies,

(2)

an

employer

treated

(1)

failed

to

similarly-situated

follow

its

employees

own

in

a

disparate manner, or (3) shifted its explanation of the
employment decision.

Lake v. Yellow Transp., Inc., 596 F.3d

871, 874 (8th Cir. 2010).
Based on that, Plaintiff argues:
Besides Givens and J.B. Garth, only two
other employees of Wilson have ever
complained
of
harassment
and/or
discrimination based upon race, during
20

Kreber's time working at Wilson. Those two
employees are Damien Keams and Lance
Flaugh. Of these four employees, three are
African-American (Givens, Garth, and Keams)
and one is Caucasian (Flaugh).
After
making complaints about harassment and/or
discrimination based upon race, Givens and
Keams were subsequently terminated for
violating the attendance policy, Garth was
demoted from his supervisor position and
Flaugh (the Caucasian) continues to work at
Wilson in the same position.
(Kreber's
Dep. At 133:11-138:11, App. 43-48) Wilson
Trailer's policies provide for permissive
language on the discipline and termination
of employees. The testimony in this case
indicated that the second and third
warnings and the ultimate termination
itself
were
not
"automatic"
and
if
different discretion had been applied by
the decision-maker a different result would
have been reached.
(Maskell Dep. At
69:21-71 :3, App. 22-24); (Kreber Dep. At
102:8-103:14, App. 40-41) To show that the
discretion that was applied was tainted by
discriminatory animus, the court need look
no further than the following:
Jason Ross - Givens' supervisor and the
person who received a two-day suspension
resulting from Givens' complaint that Ross
made a "noose" was the person who
"accidentally" provided Givens the wrong
information on the number of "early outs"
that Givens had; Givens relied on this
incorrect information provided by Ross and
took an early out in excess of Wilson
Trailer policies; even though Ross knew he
- himself - was the reason that Givens
exceeded the allowed number of "early
outs," Ross exercised his judgment in
giving Givens a written warning regardless.
21

R.J. Stowe - Stowe was also the supervisor
of
Bobby
Comstock;
within
weeks
of
Comstock's
termination
resulting
from
Plaintiffs complaint of being called a
"nigger" and Stowe's desire to retain
Comstock instead of terminating him - Stowe
exercises his discretion in doing a written
warning for Plaintiff for being out of his
work area and at lunch early- even though
other white employees were as well and this
rule was not consistently applied.
A reasonable jury could find that Ross'
behavior in placing a "noose" in the
workplace - despite being a supervisor and
because he was punished with a 2 day
suspension without pay - is evidence that
Ross' discretion in punishing Plaintiff for
taking
an
extra
"early
out"
was
discriminatory based upon race.
This is
further underscored by the fact that Ross
was the person who told Plaintiff that he
had not exceeded his "early outs" and that
Plaintiff relied upon Ross' representation
in this regard in taking the early out. A
reasonable jury could also find that
Stowe's support of retaining Comstock - an
employee who called Givens a "nigger" - and
lack of punishment for white employees who
were also out of their work stations or at
lunch early as Plaintiff was is evidence
that Stowe's discretion in punishing
Plaintiff for being out of his work station
and allegedly beginning lunch early was
discriminatory based upon race.
Indeed,
there was a white employee was [sic]
already eating his lunch while Plaintiff

22

was still warming up his food and the white
employee did not receive a write up.
Docket No. 21, p. 9-10.
Based on that argument, the Court is persuaded that Mr.
Givens has created a fact issue on whether similarly situated
members of the protected class were treated differently from
those not in the protected class. It is undisputed that those
African Americans who complained of discrimination experienced
the

adverse

actions

described

by

the

Plaintiff.

The

Defendants argued there was a legitimate reason for each
action.

However, that is a factual question that should not

be decided at this early stage of the case.
As discussed above, under McDonnell Douglas, after the
Plaintiff has alleged a prima facie case, the burden falls to
the Defendants to allege a legitimate reason for the adverse
action.

In this case, the Defendants argue:
Wilson Trailer has proffered legitimate,
nondiscriminatory reasons for disciplining
and terminating Givens... Wilson Trailer
issued each of the three relevant written
warning letters because Givens violated a
company
policy,
and
Wilson
Trailer
terminated Givens in conformity with its
policy of terminating employees who receive
three written warning letters in a one-year
period, absent extenuating circumstances.
This
is
sufficient
to
carry
Wilson
23

Trailer's "minimal burden" of proffering a
legitimate, nondiscriminatory reason for
its actions. See Fiero v. CSG Sys., Inc.,
759 F.3d 874, 877 (8th Cir. 2014).
Docket No. 15, Att. 3, p. 33.

The Defendants are correct that

they have alleged a legitimate reason for discharge. There is
no dispute that Mr. Givens received three warnings letters and
that Wilson Trailer discharged him in conformity with their
handbook.

Accordingly,

the

burden

shifts

back

to

the

Plaintiff to allege pretext.
In the portion of the Plaintiff’s brief quoted above, the
Plaintiff discusses the alleged pretext at issue in this case.
Specifically, the Plaintiff alleges that the last two warnings
were pretextual.

The Court agrees that the Plaintiff has

alleged pretext in regards to the last two letters.

Jason

Ross wrote the second warning letter. The letter was based on
the fact that Mr. Givens left work early.

However, Mr. Ross

had given Mr. Given permission to leave early.

Moreover, Mr.

Ross was involved in the noose incident and was disciplined
for the same. Clearly, the fact that Mr. Ross was disciplined
for a racially insensitive incident, then gave Mr. Givens
permission to leave early, and then wrote Mr. Givens up for
leaving early casts serious doubt over that warning letter.
24

At the very least, Mr. Givens has created a fact question
regarding pretext.
numerous

people

Trailer.

Similarly, Mr. Givens has alleged that

went

to

lunch

a

little

early

at

Wilson

He alleges he was singled out because he recently

complained about offensive language.
pretextual

allegation

for

Mr.

This is a sufficient

Givens

to

survive

summary

judgment on the racial discrimination claim.
2.

Retaliation

Section 1981 retaliation claims are analyzed under the
same framework as Title VII claims.

Gacek v. Owens & Minor

Distribution, Inc., 666 F.3d 1142, 1146 (8th Cir. 2012). In
order to establish a prima facie case of retaliation when
there is no direct evidence, Mr. Givens must show that:
he

engaged

in

a

statutorily

protected

activity;

(2)

(1)
he

suffered an adverse employment action; and (3) a causal
connection exists between the two events.

Id.

If the

plaintiff establishes a prima facie case of retaliation, the
defendant must provide a legitimate, non-discriminatory reason
for its decision.

Davis v. Jefferson Hosp. Ass'n, 685 F.3d

675, 684 (8th Cir. 2012).

If the defendant provides a

legitimate, non-discriminatory reason, then the plaintiff has
25

the burden of showing that the proffered reason was merely a
pretext for discrimination, and has the burden of creating a
reasonable inference that the defendant acted in retaliation
for the plaintiff’s protected conduct.

Smith v. Riceland

Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998).
In this case, the parties agree on the first two elements
of retaliation.

Mr. Givens engaged in protected activity, he

complained of the racial issues.

He was then fired.

The

first real question is whether there is a causal connection
between the two events.
It is well known that a close temporal connection can be
used to demonstrate a causal relationship between protected
activity and an adverse action.
protected

activity

termination.

occurred

In this case, Mr. Givens’
a

few

weeks

before

his

Considering that close temporal connection,

along with the allegedly pretextual nature of the second
warning letter (discussed above), the Court is persuaded that
Mr.

Givens

has

alleged

a

casual

connection

between

the

protected activity and the adverse action, and thus, has
stated a prima facie case for retaliation.

26

Once Mr. Givens has established a prima facie case, the
burden shifts under McDonnell Douglas to the Defendant to show
a legitimate reason for discharge. This analysis is identical
to the analysis conducted in the previous section regarding
racial discrimination.

Accordingly, the Court, again, finds

that Defendants can show a non-retaliatory reason for firing,
but the Plaintiff has sufficiently alleged that the proffered
reason is pretextual.

Accordingly, Mr. Givens’ retaliation

claim must survive summary judgment.
3.

Hostile Work Environment

As previously noted, Plaintiff also makes a hostile work
environment claim under Title VII.
harassment

occurs

when

‘the

“Hostile work environment

workplace

is

permeated

with

discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of
the

victim's

environment.’”

employment

and

Singletary

create
v.

an

Missouri

abusive

working

Department

of

Corrections, 423 F.3d 886, 892 (8th Cir. 2005) (quoting Tademe
v. Saint Cloud State University, 328 F.3d 982, 991 (8th Cir.
2003)).

“The environment must be both objectively hostile as

perceived by a reasonable person and subjectively abusive as
27

actually viewed by [the plaintiff].”

Anderson v. Durham D &

M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (citing Bowen v.
Missouri Department of Social Services, 311 F.3d 878, 883 (8th
Cir. 2002)).

In considering the objective component, courts

examine the totality of the circumstances, “including the
frequency of the discriminatory conduct, its severity, whether
it

is

physically

threatening

or

humiliating

or

a

mere

offensive utterance, and whether the conduct unreasonably
interfered

with

the

employee's

work

performance.”

Singletary, 423 F.3d at 893 (citing Bainbridge v. Loffredo
Gardens,

Inc.,

378

F.3d

756,

759

(8th

Cir.

2004)).

Additionally, if a plaintiff attempts to establish a hostile
work environment based on the actions of co-workers, he must
also show that “the employer knew or should have known of the
harassment and failed to take prompt and effective remedial
action.” Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008)
(citation omitted).
Court

of

Appeals

Finally, in Anderson, the Eighth Circuit
explained

the

demanding

nature

of

the

standards required to be met in a hostile work environment
claim:

28

Hostile work environment claims must meet
‘demanding’ standards and courts are to
‘filter out’ those complaints concerning
the
‘ordinary
tribulations
of
the
workplace.’
‘Simple teasing, offhand
comments, and isolated incidents (unless
extremely serious) will not amount to
discriminatory changes in the terms and
conditions of employment.’ ‘Mere utterance
of an epithet which engenders offensive
feelings
in
an
employee
does
not
sufficiently affect the conditions of
employment to implicate § 1981.’
606 F.3d at 519 (quotations omitted).
In

Gipson

v.

KAS

Snacktime

Co.,

the

Eighth

Circuit

indicated that “the same standards are generally used to
evaluate claims of hostile work environment based upon sexual
... and racial harassment.”
1999).

171 F.3d 574, 578 (8th Cir.

In order to establish a hostile work environment

claim, a plaintiff must prove the following:

“(1) [he]

belonged to a protected group; (2) [he] was subjected to
unwelcome harassment; (3) the harassment was based on” his
status as a protected class member; “and (4) the harassment
affected a term, condition, or privilege of [his] employment.”
Ogden v. Wax Works, Inc., 214 F.3d 999, 1006 (8th Cir. 2000).
2013).

Where the harassment was at the hands of a coworker,

and not a supervisor, Givens’ hostile work environment claim
29

includes a fifth element requiring him to show that the
employer knew or should have known of the harassment, but
failed to take proper remedial action.

Jacob-Mua v. Veneman,

289 F.3d 517, 522 (8th Cir. 2002)(abrogated on other grounds
by Torgerson v. City of Rochester, 643 F.3d 1031, 1059 (8th
Cir. 2011)).
The Defendant concedes that Mr. Givens is a member of a
protected group and that he suffered harassment based on the
protected characteristic.

However, the Defendants argue Mr.

Givens cannot allege that harassment affected a term or
condition of his employment.
The first incident that needs to be discussed is the
noose

incident.

Defendants

argue

that

the

potential

harassment involved in the noose incident has already been
considered and is barred by the principal of res judicata. As
set

out

in

the

Defendants’

brief,

“state

administrative

decisions are given preclusive effect with respect to issues
later

raised

in

a

federal-court

lawsuit

‘[w]hen

an

administrative agency is acting in a judicial capacity and
resolves disputed issues of fact properly before it which the
parties

have

had

an

adequate
30

opportunity

to

litigate.’”

Herrera v. Churchill McGee, LLC, 680 F.3d 539, 547 (6th Cir.
2012) (quoting Univ. of Tenn. v. Elliott, 478 U.S. 788, 797-98
(1986)).

“In such circumstances, ‘federal courts must give

the agency’s fact finding the same preclusive effect to which
it would be entitled in the State’s courts.’”

Id.

Under Iowa

law, a determination by a city civil rights commission has
preclusive effect, and so bars a claimant from filing suit in
district court, where the requirements of res judicata are
satisfied. Bennett and Cf. Mason City Human Rights Commission
v. MC No. 619, Inc., 586 N.W.2d 512, 517-18 (Iowa 1998) see
also City of Des Moines Police Dep’t v. Iowa Civil Rights
Comm’n,

343

N.W.2d

836,

839

(Iowa

1984)

(“[A]

final

adjudicatory decision of an administrative agency such as the
[Iowa Civil Rights] Commission is entitled to res judicata
effect as if it were a judgment of a court.”).

The Plaintiff

did not address this issue in his brief, and the Court has
found no reason to dispute the Defendants’ statement of the
law on this issue. The principle of res judicata includes the
doctrines of issue preclusion and claim preclusion.

“Issue

preclusion prevents parties from relitigating in a subsequent
action issues raised and resolved in a previous action.”
31

EMC

v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012) (internal
citation and quotation omitted).

Issue preclusion applies

where four elements are established:
(1) the issue in the present case must be
identical, (2) the issue must have been
raised and litigated in the prior action,
(3) the issue must have been material and
relevant to the disposition of the prior
case, and (4) the determination of the
issue in the prior action must have been
essential to the resulting judgment.
Id.
In

his

Response

to

the

Defendants’

Statement

Undisputed Facts, the Plaintiff admitted the following:
[t]he SCHRC reviewed the evidence submitted
by the parties regarding the charge, and
interviewed witnesses.
SCHRC Opinion,
Bates Nos. 243-47, Defendants’ App’x at
115-19. The SCHRC found that there was no
reason to doubt Ross’s explanation that his
tying the knot was not racially motivated.
SCHRC Opinion, Bates No. 246, Defendants’
App’x at 118.
The SCHRC found that the
“noose” did not constitute sever or
pervasive harassment. SCHRC Opinion, Bates
No. 246, Defendants’ App’x at 118.
The
SCHRC decided that there was no probable
cause on any of the issues that Givens
raised in his complaint with respect to the
“noose.”
SCHRC File, Bates No. 247,
Defendants’ App’x at 119.
The ICRC
notified Givens that the Sioux City Human
Rights Commission had made a determination
and closed its case on Givens’s charge.
ICRC Letter (8/27/2010), Bates No. 242,
32

of

Defendants’ App’x at 114. The ICRC notice
informed Givens that he could request that
the ICRC reconsider its decision and
re-open the case, or he could request a
right-to-sue
letter,
ICRC
Letter
(8/27/2010), Bates No. 242, Defendants’
App’x at 114.
Givens never requested
reconsideration, or a right-to-sue letter,
following the SCHRC’s decision.
Docket No. 21, Att. 1, p. 8.
Based on those admitted to and agreed upon facts, the
Court is persuaded that the noose issue was raised in the
previous administrative action, was the identical issue here,
was material to that case, and the administrative agency’s
analysis
judgment.

of

the

noose

Accordingly,

incident
the

was

issue

of

essential

to

their

whether

the

noose

incident was racially motivated harassment has already been
considered by the agency and the agency determined that the
noose was not intended to harass Mr. Givens or anyone else.
Accordingly, the existence of the alleged noose cannot be used
to determine whether there was a hostile work environment at
Wilson Trailer.3
3

In the previous section(s), the Court considered the
noose incident in finding pretext.
However, in those
sections, the Court was considering the facts that 1) Mr.
Givens reported the noose incident and 2) that Mr. Ross was
disciplined for the noose incident. Those two issues exist
33

The

other

racial

incidents

were

carried

out

by

co-

workers, not supervisors, and Mr. Givens has failed to allege
a prima facie case for each incident.

It is alleged that co-

workers wrote insults on Mr. Givens’ lunch box and, possibly,
the bathroom stalls.

However, there is no indication that

those insults had a racial animus or were tied to Mr. Givens’
status as a member of a protected group.

There are also the

incidents, described above, where co-workers Mr. Peterson and
Mr. Comstock used racially offensive language.
each

of

action.

those

situations,

the

supervisors

However in

took

remedial

Supervisors talked to Mr. Peterson, and his use of

the offensive language stopped.

Wilson Trailer fired Mr.

Comstock for using the offensive language.

Additionally, Mr.

Givens has failed to allege how any of the alleged harassment
affected a term, condition, or privilege of his employment.
Accordingly,

Mr.

Givens

cannot

environment prima facie case.

establish

a

hostile

work

The Defendants’ Motion for

Summary Judgment on this claim must be granted.

separate from the question of whether the noose incident was
in fact harassment, which is the issue in this section.
34

D.

Front Pay

The final issue discussed by the parties is whether the
Plaintiff is entitled to an award of front pay.

Defendants

argue that the Plaintiff cannot offer competent evidence on
the issue of front pay without an expert witness.

Plaintiff

contends that this is a question left up to the judge and
should be based on the four factor test set out in E.E.O.C. v.
HBE Corp., 135 F.3d 543, 555 (8th Cir. 1998).
The Court is persuaded that this issue is best left for
trial.

The

Plaintiff

may

testify,

if

possible,

to

the

relevant factors and then the Court will make the appropriate
findings.

Following the close of evidence, the Court can

determine whether there is sufficient evidence to consider the
issue of front pay.

Accordingly, the Defendants’ Motion for

Summary Judgment is denied on this issue.

However, the

Defendants will be free to raise this issue again at the time
of trial.
VI.

CONCLUSION
For the reasons set out above, the Defendants’ Motion for

Summary Judgement, Docket No. 15, is granted in part denied in
part.

The motion is granted regarding Mr. Givens’ state law
35

claims, his Title VII claims against individual supervisors
and his hostile work environment claim.
for

Summary

Judgment

regarding

However, the Motion

racial

discrimination,

retaliation, and front pay is denied as set out above.
IT IS SO ORDERED this 30th day of September, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

36