Evans v. Smurfit Stone Container, Inc. et al

Filing 54

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant Smurfit Stone Container, Inc.'s motion for summary judgment [#48] is GRANTED. IT IS FURTHER ORDERED that Defendant Smurfit Stone Container, Inc.'s motion to exclude exhibits [#52] is GRANTED. Signed by District Judge Rodney W. Sippel on 9/13/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
www.m oed.uscourts.gov

JOSEPH EVANS,
Plaintiff,
vs.
SMURFIT STONE CONTAINER, INC.,
Defendant.

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Case No. 4:11CV1188 RWS

MEMORANDUM AND ORDER
Defendant Smurfit Stone Container, Inc. has a recycling facility in St. Louis, Missouri.
Plaintiff Joseph Evans worked for Smurfit as a Labeler and then as a Sorter. Evans was fired from
his employment for violating a work safety policy. Evans, an African American, file this lawsuit
asserting that his termination was motivated by race discrimination. Smurfit has moved for
summary judgment. Because Evans has not submitted any evidence which supports his
discrimination claim I will grant Smurfit summary judgment.
Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the
nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center, 160
F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary judgment
bears the initial responsibility of informing the court of the basis of its motion and identifying those
portions of the affidavits, pleadings, depositions, answers to interrogatories, and admissions on file
which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v.
Citrate, 477 U.S. 317, 323 (1986). When such a motion is made and supported by the movant, the

nonmoving party may not rest on his pleadings but must produce sufficient evidence to support the
existence of the essential elements of his case on which he bears the burden of proof. Id. at 324. In
resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden
to designate specific facts creating a triable controversy. Crossley v. Georgia-Pacific Corp., 355
F.3d 1112, 1113 (8th Cir. 2004).
Direct evidence of employment discrimination is rare, therefore, most cases rely on
circumstantial evidence. In the absence of direct evidence of discrimination, courts employ the
burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)(Title VII case).
Under the burden-shifting analysis, the plaintiff must first establish a prima facie case of
intentional discrimination. McDonnell Douglas, 411 U.S. at 802; Bashara v. Black Hills Corp., 26
F.3d 820, 823 (8th Cir. 1994). If the plaintiff establishes a prima facie case, a presumption of
discrimination is established and the burden of production shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the adverse employment action. 411 U.S. at 802. The
defendant need not persuade the court that the articulated reason was the basis of the employer’s
action; rather, it must simply provide some evidence of a non-discriminatory reason or reasons for
its action. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993).
Upon the proffer of such evidence, the presumption of discrimination established by the
prima facie case “simply drops out of the picture.” Id. at 510-11. The burden then shifts back to the
plaintiff to prove that the reason articulated by the employer was really a pretext for discrimination.
Aucutt, 85 F.3d at 1316. A rejection of the employer’s proffered non-discriminatory reason by
itself or combined with elements of the prima facie case may be enough to establish, but does not
compel, an inference of intentional discrimination. St. Mary’s Honor Center, 509 U.S. at 511.

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The burden of proving discrimination remains on the plaintiff at all times. Id. at 515-16. It
is not enough to merely discredit defendant’s articulated reason for the adverse employment action.
A plaintiff must always establish that the real reason for defendant’s action was impermissible
discrimination. Id.; see also Huston v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir.
1995). To avoid summary judgment, a plaintiff must present evidence that, when viewed in its
entirety: (1) creates a fact issue as to whether the employer’s proffered reason is pretextual, and (2)
creates a reasonable inference that a discriminatory motive was a determinative factor in the adverse
employment decision. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir.
1996).
Background
The following information is taken from Defendant Smurfit’s Statement of Undisputed
Material Facts [Doc. #50]. Plaintiff Evans does not specifically controvert any of these facts so they
are deemed to be undisputed under Federal Rule of Civil Procedure 56(e)(2) and Local Rule 74.01(E).
On September 2, 2008, Evans, an African American, began to work for Smurfit at its St.
Louis recycling facility. He was hired by the Plant Manager, Kevin Harbour, who is also African
American. Harbour was the Plant Manager from April 1, 2008 to March 1, 2012 and is currently the
Plant Superintendent. In compliance with OSHA rules and for employee safety, certain equipment
must be “locked out” to prevent them from operating while they are being worked on or repaired.
Smurfit has a “zero tolerance policy” which requires the termination for any employee who fails to
follow “lockout tagout” (“LOTO”) procedures.
When Evans began his employment he was provided with a copy of Smurfit’s Plant Rules

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and a condensed version of the rules which enumerate the penalties for the breach of a rule. The
rules state that an employee will be fired for failing to follow LOTO procedures. Throughout his
employment Evans received frequent training and testing with regard to the LOTO policy.
On April 12, 2011, Evans was working on top of Belt 15, which requires the machine to be
locked out. Harbour observed Evans on top of Belt 15 without having locked out. Harbour made
the decision to terminated Evans’ employment on April 14, 2011, for his violation of the LOTO
policy. Harbour attests that, while he has been Plant Manager/Superintendent, there has not been
any employee who has been caught violating the LOTO rule who has not been terminated.
Evans admits in his compliant that he was fired for performing a procedure which required a
“lock-out tag out and [he] forgot to lockout-tag out.” He contends that a white employee named
Jason Yochum was not dismissed for a first time infraction of getting a forklift stuck on a conveyer
belt. Evans asserts this disparate treatment was the result of racial discrimination.
In his charge of discrimination with the EEOC, Evans checked the box indicating that he
was discriminated on the basis of race. In the narrative section of the charge, Evans asserts that he
was terminated for not locking out but that it was a pretext for discrimination based on his race.
In his complaint in this lawsuit, however, Evans makes an additional claim that he was also
discriminated based on color and asserts additional claims for a failure to promote; the terms and
conditions of his employment differed from similar employees; retaliation; and harassment. None
of the claims were raised in Evans’ EEOC charge.
Smurfit has filed a motion for summary judgment asserting that Evans has failed to offer any
evidence to support his race discrimination claim and that his other claims are barred from
consideration for failing to raise them in his EEOC charge.

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Discussion
Termination Base on Race Discrimination
Title VII prohibits an employer from discharging an individual or discriminating against an
individual with respect to his compensation on the basis of race or national origin. 42 U.S.C. §
2000e–2(a)(1). Because Evans has not presented any direct of employment discrimination, the
burden shifting framework of McDonnell Douglas applies to this case. To establish a prima facie
case of race discrimination, Evans must establish (1) that he is a member of a protected class, (2)
that he was meeting Smurfit’s legitimate job expectations, (3) that he suffered an adverse
employment action, and (4) that similarly situated employees outside the protected class were
treated differently. Martinez v. W.W. Grainger, Inc., 664 F.3d 225, 230 (8th Cir. 2011).
Evans has failed to present evidence in support of factors (2) and (4). He was not meeting
Smurfit’s legitimate job expectations. He admitted that he failed to follow LOTO rules. It is
undisputed that the failure for any employee to comply with these rules will result in dismissal.
Evans attempts to establish factor (4) by asserting that he was treated differently than a white
employee named Jason Yocham. He asserts that Yocham was not fired for getting a forklift stuck
on a conveyer belt. Evans does not present any evidence that he and Yocham were similarly
situated employees. Moreover, Kevin Harbour, the Plant Manager attested that Jason Yocham did
drive a forklift too close to a conveyer belt and a tire slipped off the concrete around the belt.
Harbour states that this incident was not in any way related to a LOTO violation. Evans does not
dispute this assertion. Harbour attested that Yochum was ultimately terminated on August 16, 2010
because he violated the LOTO policy on that date.
I find that Evans has failed to establish a prima facie case of discrimination. He has not

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presented any evidence that a similar situated white employee was not terminated for violating
Smurfit’s LOTO policy. To the contrary, Harbour’s undisputed evidence is that anyone who
violated the LOTO policy was terminated. Evans has failed to offer any evidence to support his
claim that race was a motive in his termination.
Evans’ Other Discrimination Claims
As previously noted, the only claim Evans asserted in his charge of discrimination with the
EEOC was that he was terminated based on his race. However, in his complaint in this lawsuit he
asserts claims for discrimination based on color, failure to promote; the terms and conditions of his
employment differed from similar employees; retaliation; and harassment. None of the claims were
raised in Evans’ EEOC charge.
Smurfit asserts that the only claim properly before the Court is Evans’ claim he was
terminated based on his race. Smurfit argues that this is the only claim that was presented and
exhausted with the EEOC prior to the filing of this lawsuit. It asserts that any other claims of
disparate treatment should be dismissed for failing to exhaust these claims with the EEOC.
Central to the statutory scheme provided by Title VII is the requirement that a plaintiff
exhaust his administrative remedies by filing a charge with the EEOC. Shannon v. Ford Motor Co.,
72 F.3d 678, 685 (8th Cir. 1996)(quotations and citations omitted). The purpose of the exhaustion
requirement is to allow the EEOC the opportunity to investigate discriminatory practices and
perform its role of obtaining voluntary compliance and promote conciliatory efforts. Id. In order to
exhaust administrative remedies, a Title VII plaintiff must timely file charges with the EEOC and
obtain from the EEOC, a “right to sue letter.” Id. See also 42 U.S.C. § 2000e-5 (b), (c), and (e).
After exhausting his administrative remedies, a plaintiff obtains the right to file a civil action in

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federal court based upon the employment discrimination claim alleged in the EEOC charge, along
with allegations that are “‘like or reasonably related’” to that claim. Id. (quoting Williams v. Little
Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994)). A failure to exhaust Title VII’s
administrative remedies, however, bars the plaintiff from filing a civil lawsuit. Williams, 21 F.3d at
222.
Courts will liberally construe discrimination claims made by pro se litigants. Shannon, 72
F.3d at 685. However, there is a great difference between “liberally reading a claim which lacks
specificity ... and inventing ex nihilo a claim which was simply not made” by the plaintiff. Id.
Discrete acts such as retaliation, failure to promote, denial of transfer, or refusal to hire
constitute separate actionable unlawful employment practices. National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002). “Each discrete discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time
period after the discrete discriminatory act occurred.” Id. at 113. “[D]iscrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id.
The only discrete act that Evans raised in his EEOC charge was his allegation that he was
terminated base on his race. That is the only claim for which he received a right to sue from the
EEOC. Evans’ EEOC charge does not assert any of the other discrete acts that he alludes to in his
complaint. As a result, I will grant Smurfit’s motion for summary judgment on all of Evans’
remaining claims under Title VII.
Smurfit’s Motion to Exclude
Finally, Smurfit has moved to exclude two audio recordings that Evans submitted with his
response to Smurfit’s motion for summary judgment. Because these recordings lack a foundation,

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are not authenticated, and contain hearsay they will not be considered in evaluating Smurfit’s
summary judgment motion. Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001)(unsworn accounts
are inadmissible hearsay and may not be considered at the summary judgment stage). So too,
several documents Evans submitted in his response have not been properly identified and lack
authentication and a proper foundation. These too shall not be considered in ruling on the motion
for summary judgment.
Accordingly,
IT IS HEREBY ORDERED that Defendant Smurfit Stone Container, Inc.’s motion for
summary judgment [#48] is GRANTED.
IT IS FURTHER ORDERED that Defendant Smurfit Stone Container, Inc.’s motion to
exclude exhibits [#52] is GRANTED.

__________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 13th day of September, 2012.

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