Senter v. Stericycle Inc.
Filing
112
ORDER granting 90 Motion for Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 10/22/13. (KLL)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Lennie R. Senter,
Plaintiff,
Civ. No. 11-3713 (RHK/FLN)
MEMORANDUM OPINION
AND ORDER
v.
Stericycle, Inc.,
Defendant.
Lennie Senter, Urbandale, Iowa, Plaintiff pro se.
Cara J. Ottenweller, Katherine A. Christy, Steven L. Hamann, Vedder Price PC, Chicago,
Illinois, Jonathon P. Norrie, Bassford Remele, PA, Minneapolis, Minnesota, for
Defendant.
INTRODUCTION
In this action, Plaintiff Lennie Senter asserts claims against his former employer,
Defendant Stericycle, Inc. (“Stericycle”), for racial discrimination, harassment, and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Stericycle moves for summary judgment on Senter’s claims and, for the reasons set forth
below, its Motion will be granted.
BACKGROUND
Stericycle collects, processes, and disposes of medical waste and provides
product-recall services for pharmaceutical, medical-device, and other companies. Senter,
an African American, began working for Stericycle as a permanent employee in 2006 at
its medical-waste-processing facility in St. Paul, Minnesota. Throughout his
employment, Senter was employed as a Plant Worker and reported to Plant Supervisor
Brad Vander Pal, who in turn reported to Plant Manager Jason Ritt. As a plant worker,
Senter was responsible for unloading waste from vehicles, decontaminating vehicles, and
staging waste for scanning and processing. (Senter Dep. Ex. 18.)
In the spring of 2009, Stericycle asked its employees to complete surveys after
viewing a presentation on unions. Senter alleges that Caucasian employees were allowed
to take their surveys home to complete them, but African-American employees were
required to complete them on site. (Id. at 256–57.) But Senter acknowledges that he
bases this allegation of differential treatment on the fact that the Drivers, most (but not
all) of whom were Caucasian, were allowed to take them home while Ritt required him
(and ostensibly all the Plant Workers) to complete the surveys at work. (Id. at 260.)
Senter acknowledges that the African-American Drivers would be treated the same as the
Caucasian Drivers (id. at 259), although he has no personal knowledge of whether the
African-American Drivers were allowed to take the surveys home as he saw only
Caucasian Drivers taking them home (id. at 299–300).
In March 2010, Senter utilized the Stericycle hotline to complain about his
supervisor, Vander Pal. He alleges Vander Pal regularly used profanities, often directed
toward him. For example, Senter alleges Vander Pal would tell him, “Get your ass to
work,” that he would threaten him, saying, “Keep that shit up in here and you will be out
of here,” and that he chastised him, “Don’t you ever f-ing do that again,” after Senter
spilled a bin of waste. (Id. at 66.) As a result, he reported Vander Pal to Human
Resources. But when Christine Sura, the Human Resources Manager, contacted Senter to
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follow up on the complaint, he informed her he had resolved the issue and he never
contacted her or Human Resources again. (Id. at 64–65, 72.)
In October 2010, Stericycle’s St. Paul plant was temporarily shut down and the
plant’s employees were assigned to work at the Fridley, Minnesota, facility in the interim.
Senter was initially assigned to work as Shift Lead on a weekend shift (Shift C) at the
Fridley plant. (Id. at 57.) He avers this assignment was inappropriate given his seniority
(id. at 58) and all his Caucasian coworkers from St. Paul were kept on their regular
weekday shift, including Nathan Bruce and Dennis O’Brian (Senter Mem. at 2). Senter
complained to Ritt and Vander Pal about his schedule and threatened to contact the
District Manager so they transferred him back to a weekday shift. Their stated reason for
changing him to the weekend was that they had selected the best performers to be the
four Shift Leads. (Compl. Ex. 1 (Doc. No. 1-1) at 25.) In his place, they installed Joel
Hill—a Caucasian employee with only three months’ experience—as the Shift Lead for
Shift C instead of Alfred Austin—an African-American employee with four years’
experience. (Senter Mem. at 3.) So, after transferring Senter back to the weekday shift,
the two weekend Shift Leads were Hill (Caucasian) and Martin (African American). In
total, Senter worked two weekend shifts and suffered no loss of pay. (Senter Dep. 59,
61.) As a result of his initial shift assignment and the union-survey incident, Senter filed
a charge of racial discrimination and harassment against Stericycle with the City of St.
Paul in November 2010. (Id. at 141 & Ex. 12.)
As part of his job, Senter loaded waste into and operated an “autoclave”—a large
vessel that uses high pressure and steam to kill bacteria contained in the medical waste.
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On January 26, 2011, an autoclave exploded and Ritt determined that Senter was
responsible for the incident; Ritt decided Senter had neglected the critical step of
checking the seal of the door on the autoclave. (Ritt Aff. ¶ 25.) Senter maintains he had
no part in the incident and the autoclave exploded because it had not been properly
maintained. (Senter Dep. 118, 262.) Ritt confronted Senter about the incident but did not
discipline him. (Id. at 117–18.) Two days later, on January 28, Senter amended his
charge with the City of St. Paul to allege he “was disciplined for an act [he] did not
commit.” (Id. Ex. 13.)
On February 9, 2011, during Senter’s shift, Vander Pal instructed him to perform a
task that he believed was a safety violation. He refused to perform the task, Vander Pal
started “hollering” at him, and Senter pointed his finger in Vander Pal’s face, which he
acknowledges was grounds for discipline. (Id. at 113, 115.) Stericycle suspended him
for three days. Senter acknowledges the suspension was unrelated to his race. (Id. at
128.) He returned to work on February 14.
Two days later, on February 16, Shift Lead Nathan Bruce observed Senter picking
up medical waste by hand, without using the proper safety tools. (Bruce Aff. ¶¶ 8–9.)
Picking up medical waste by hand, even with gloved hands, was considered a safety risk
to employees and they had been instructed not to do so. (Senter Dep. 105–06 & Ex. 9.)
Senter and others had attended a safety training that addressed the topic the previous
month. (Id. at 100, 138 & Ex. 8.) Bruce reported his observation to Vander Pal (Bruce
Aff. ¶ 10), who reported it to Ritt (Ritt Aff. ¶ 28). Ritt reviewed the video surveillance
and determined Senter had violated Stericycle’s safety policies. (Id. ¶ 29.) Given his
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recent suspension and this violation, he and Vander Pal decided to terminate Senter’s
employment. (Id. ¶ 30.) The next morning, they informed Senter he was being
terminated for his failure to use proper safety precautions when handling medical waste.
(Senter Dep. 181–83.) Although Senter denies picking up medical waste with his hands
(id. at 137), he acknowledges that it was the reason Stericycle terminated him and that it
had nothing to do with his race (id. at 138–39.) He also acknowledges that another
employee, who is Caucasian, had been terminated for mishandling medical waste. (Id. at
212.)
In December 2011, Senter commenced the instant action. He asserts claims under
Title VII for racial discrimination, harassment, and retaliation. Stericycle now moves for
summary judgment on all of Senter’s claims. The Motion has been fully briefed and is
ripe for disposition.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Whisenhunt v. Sw.
Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the
inferences that may be reasonably drawn from it, in the light most favorable to the
nonmoving party. Beard v. Banks, 548 U.S. 521, 529–30 (2006); Weitz Co. v. Lloyd’s of
London, 574 F.3d 885, 892 (8th Cir. 2009). The nonmoving party may not rest on mere
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allegations or denials, but must show through the presentation of admissible evidence that
specific facts exist creating a genuine issue for trial. Fed. R. Civ. P. 56(c)(1)(A); Wood
v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).
ANALYSIS
I.
Harassment
To establish a claim of harassment or hostile work environment, a plaintiff must
show: (1) membership in a protected group, (2) unwelcome harassment, (3) a causal
nexus between the two, (4) that the harassment affected a term, condition, or privilege of
her employment, and (5) that the employer knew or should have known of the harassment
and failed to take prompt remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700
(8th Cir. 1999). “Title VII does not prohibit all verbal or physical harassment and it is
not a general civility code for the American workplace.” Wilkie v. Dep’t of Health &
Human Servs., 638 F.3d 944, 953 (8th Cir. 2011). “[S]imple teasing . . . offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998).
Senter alleges Vander Pal harassed him by using profanity and yelling at him and
that he was singled out for such harassment on account of his race. Senter’s claim fails
for two reasons. First, it is doubtful that Vander Pal’s conduct was sufficiently severe to
constitute actionable harassment under Title VII. The alleged comments by Vander Pal
may be crude and offensive, but were not physically threatening, humiliating, or severe.
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Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (to determine whether harassment is
actionable a court considers factors including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance”). Even assuming Vander Pal’s harassment were severe or frequent enough
to be actionable, Senter has not presented any evidence to support his allegation that they
were racially motivated apart from the fact that Vander Pal is Caucasian and he is African
American. Senter acknowledges that (1) Vander Pal has never used any racial slur or
made any reference to his race, (2) his harassing comments were work-related, and (3) he
used profanities with other employees. (Senter Dep. 66–68.) Under these circumstances,
summary judgment will be granted.
II.
Discrimination
To establish a prima facie case of discrimination, a plaintiff must show that (1) he
is a member of a protected class; (2) he was qualified to perform his job; (3) he suffered
an adverse employment action; and (4) nonmembers of his class were not treated the
same. Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999). The
burden then shifts to the employer to demonstrate a legitimate, nondiscriminatory reason
for the adverse employment action. Id. If the employer articulates such a reason, the
plaintiff must produce evidence that the employer’s stated reason is merely a pretext for
discrimination. Id.
While it is not clear from his Complaint or memoranda, it appears that Senter
asserts he was discriminated against by having to complete the union survey at work and
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by having to work the weekend shift at the Fridley plant because he acknowledged in his
deposition that his termination and his suspension were not related to his race. The first
two elements of Senter’s prima facie case are not disputed—he is a member of a
protected class and was qualified for his position. But Senter fails to establish the third
element—that he suffered an adverse employment action.
“To constitute an adverse employment action, the complained of action must have
an adverse impact on the employee and must effectuate a material change in the terms or
conditions of employment.” Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002).
Having to complete his union survey at work does not constitute an adverse employment
action—he acknowledges that he was paid for the time he spent completing it and he
suffered no punishment or other adverse consequences for doing so. The Court fails to
see how the inability to complete it at home adversely impacted Senter. See Fercello v.
Cnty. of Ramsey, 612 F.3d 1069, 1078–79 (8th Cir. 2010) (annoyances and petty slights
do not amount to adverse employment actions); Montandon v. Farmland Indus., Inc., 116
F.3d 355, 359 (8th Cir. 1997) (“[N]ot everything that makes an employee unhappy is an
actionable adverse action.”).
Nor does Senter’s temporary schedule change constitute an adverse employment
action under Title VII. “[A] transfer or reassignment which involves only minor changes
in working conditions and does not involve a reduction in pay or benefits does not
constitute an adverse action.” Jones, 285 F.3d at 714. Most importantly, Senter does not
allege his reassignment resulted in the loss of benefits or pay or any change in
responsibilities. This alone could potentially defeat his claim. See Tademe v. St. Cloud
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State Univ., 328 F.3d 982, 992 (8th Cir. 2003) (“[A]n adverse employment action is
exhibited by a material employment disadvantage, such as a change in salary, benefits, or
responsibilities.”) (quotation omitted). But considering also that his new weekend shift
remained a daytime shift, he was simultaneously “promoted” to Shift Lead, the new shift
was intended to be temporary (while the St. Paul plant was closed), and he was
transferred back to his old shift upon request, the Court concludes Senter’s reassignment
constituted only a minor change to the conditions of his employment and is not
actionable. Cf., e.g., Montandon, 116 F.3d at 359 (plaintiff’s involuntary transfer from
Nebraska to Iowa was not an adverse employment action).
III.
Retaliation
Claims of retaliation are considered under the same burden-shifting framework as
discrimination claims. To establish a prima facie case of retaliation, a plaintiff must
demonstrate that (1) he engaged in a protected activity; (2) he suffered a materially
adverse employment action; and (3) a causal connection exists between the two. Muor v.
U.S. Bank Nat’l Ass’n, No. 12-2757, 2013 WL 2631169, at *5 (8th Cir. June 13, 2013).
Stericycle acknowledges that Senter engaged in a protected activity by filing a
discrimination complaint with the City of St. Paul and that he suffered an adverse
employment action when he was terminated, but it disputes whether the two were
causally connected.
In order to show a causal connection, a plaintiff “must establish that his or her
protected activity was a but-for cause of the alleged adverse action by the employer”;
showing that it was merely a “motivating factor” is insufficient. Univ. of Tex. Sw. Med.
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Ctr. v. Nassar, 570 U.S. __, No. 12-484, 2013 WL 3155234, at *15 (June 24, 2013)
(emphasis added). Senter has offered little evidence that his complaint was a motivating
factor in his termination, let alone a but-for cause of it. In his deposition, Senter testified
there were at least four causes for his termination. In addition to retaliation for his
discrimination complaint, he believes his termination was prompted or caused by his
(alleged) mishandling of medical waste (Senter Dep. 145); a complaint he made to the
Minnesota OSHA 1 about Stericycle (id. at 139); and his superior performance on the job,
which he claims Vander Pal found threatening (id. at 229). The sheer number of causes
that Senter alleges makes his claim look more like one of “mixed motives,” which the
Supreme Court explicitly rejected in Nassar, and undercuts the likelihood that he would
not have been terminated “but for” his discrimination complaint.
Regardless, Senter presents virtually no facts supporting causation. When asked
in his deposition why he believes he was terminated in retaliation for his complaint, he
pointed to the facts that (1) he was fired the day after the alleged safety violation (id. at
180–81) not on the day of it and (2) Stericycle contested his receipt of unemployment
benefits after he was terminated (id. at 193), ostensibly demonstrating a vindictive intent.
But even drawing all reasonable inferences in his favor, these facts, standing alone, do
not establish a prima facie case of causation, especially given his acknowledgment that
the complaint was not mentioned during his termination and the lack of any evidence to
indicate his supervisors were even aware he had filed a complaint. Not even the timing
1
Although Senter asserts his complaint to the Minnesota OSHA was a cause of his termination,
he acknowledges that allegations of such retaliation are outside the scope of his Complaint.
(Senter Dep. 140.)
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of his termination supports his claim. While it may be viewed as suspect that no one
confronted Senter about his safety violation the day it (allegedly) happened, the fact
remains that he was terminated less than a day after the alleged violation and within a
week of his suspension for insubordination, but more than two months after filing his
complaint with the City of St. Paul.
Even if Senter had established a prima facie case of retaliation, he has presented
no evidence that Stericycle’s proffered reason for his termination—namely his safety
violation on the heels of insubordinate behavior—was merely pretextual. Senter argues
this this is a pretext because it is not true—that is, he denies committing the violation.
But “the critical inquiry . . . is not whether the employee actually engaged in the conduct
for which he was terminated, but whether the employer in good faith believed that the
employee was guilty of the conduct.” Pulczinski v. Trinity Structural Towers, Inc., 691
F.3d 996, 1002 (8th Cir. 2012). Stericycle has presented evidence of Ritt’s and Vander
Pal’s good-faith belief, which Senter has not rebutted. Namely, Nathan Bruce, the Lead
for Senter’s shift, states in his affidavit that he told Vander Pal Senter had violated safety
protocol, and Vander Pal, in turn, informed Ritt. Furthermore, Senter acknowledges that
the alleged violation—picking up waste without the proper equipment—is a terminable
offense at Stericycle and that at least two other Plant Workers have been discharged for
that reason. Because Senter has not offered adequate evidence of causation or pretext in
support of his retaliation claim, Stericycle is entitled to summary judgment.
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CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Stericycle’s Motion for Summary Judgment (Doc. No. 90) is
GRANTED and the Complaint (Doc. No. 1) is DIMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: October 22, 2013
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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