Walker v. Northview Village Nursing Center et al
OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment [Doc. No. 65 ] is granted. A separate Judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 2/9/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgment [Doc. No. 65]. Plaintiff opposes the Motion. For the reasons set forth
below, the Motion is granted.
This is an employment discrimination case alleging claims under Title VII of
the Civil Rights Act of 1964 as amended (“Title VII”), 42 U.S.C. § 2000e et seq.
Specifically, plaintiff claims that defendant terminated his employment because of
religious discrimination, religious harassment and in retaliation for claiming he
was discriminated against.
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant
a motion for summary judgment if all of the information before the court
demonstrates that “there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving
party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268,
273 (8th Cir.1988). After the moving party discharges this burden, the nonmoving
party must do more than show that there is some doubt as to the facts. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth
affirmative evidence and specific facts by affidavit and other evidence showing
that there is a genuine dispute of a material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex, 477 U.S. at
324, 106 S.Ct. 2548. “A dispute about a material fact is ‘genuine’ only ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’ ” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir.2000)
(quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A party resisting summary
judgment has the burden to designate the specific facts that create a triable
controversy. See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114 (8th
Cir.2004). Self-serving, conclusory statements without support are not sufficient to
defeat summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d
276, 279 (8th Cir.1993).
“While employment discrimination cases are often fact intensive and
dependent on nuance in the workplace, they are not immune from summary
judgment.” Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir.2010)
(citing Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir.1999)). There is no
separate summary judgment standard for employment discrimination cases, and “it
remains a useful pretrial tool to determine whether or not any case, including one
alleging discrimination, merits a trial.” Id.
In ruling on a motion for summary judgment, the court must review the facts
in a light most favorable to the party opposing the motion and give that party the
benefit of any inferences that logically can be drawn from those facts. Matsushita,
475 U.S. at 587; Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th
Cir.2005). The Court may not “weigh the evidence in the summary judgment
record, decide credibility questions, or determine the truth of any factual issue.”
Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir.2000).
However, the court is required to resolve all conflicts of evidence in favor of the
nonmoving party. Robert Johnson Grain Co. v. Chemical Interchange Co., 541
F.2d 207, 210 (8th Cir.1976).
The following facts are taken from Defendant’s statement of uncontroverted
facts, Plaintiff's statement of material facts, and exhibits in the record.
Plaintiff worked for Defendant as a temporary employee in the maintenance
department from approximately January 2010 through July 2010. Defendant laid
Plaintiff off in July 2010 because of the low resident census. Plaintiff did not
complain of discrimination or harassment related to his 2010 employment.
In September 2012, Defendant hired Plaintiff as a temporary painter.
Plaintiff’s direct supervisor was Director of Maintenance, Allen Koonce
(“Koonce”). Koonce supervised all employees in the maintenance department,
including painters and maintenance workers.
In March 2013, Defendant changed Plaintiff’s employment status to “fulltime,” and he became eligible for employee benefits. At that time, Defendant
increased Plaintiff’s pay from $10.00 per hour to$11.67 per hour.
In the fall of 2013, Defendant’s corporate office informed Defendant’s
Administrator, Judy Deering (“Deering”), that it had to make lay-offs due to
payroll budget cuts. One of the departments in which Defendant had to make a lay
off was the maintenance department. Deering also learned that Defendant had to
make lay-offs in another department as well due to payroll budget cuts. To that
end, Deering decided to lay off Emilie Bradford-Taylor, RN, In-Service Nurse, on
October 4, 2013. Deering decided to lay off Bradford-Taylor because she had the
least seniority, and an employee with more seniority than her could absorb her job
duties. Deering decided to lay off Plaintiff because he was the last full-time
employee hired in the maintenance department prior to the lay-off directive and
therefore had the least seniority.
Deering informed Koonce about Plaintiff’s lay-off, and Koonce informed
Plaintiff of his lay-off on October 3, 2013. His lay-off was effective October 4,
During his employment, Plaintiff never told Koonce, Deering, Northview’s
Human Resources Manager, Ralph Menees (“Menees”), or anyone at Northview’s
corporate office about what his religion was. Moreover, during his employment,
Koonce, Deering, Menees and Northview’s corporate office never asked Plaintiff
about his religion.
In summer 2013, Defendant held a company picnic. Attendance was not
mandatory. When Koonce asked Plaintiff if he was going to attend the picnic,
Plaintiff told him “because of his religion [he] wouldn’t be able to attend because
of certain foods and stuff [he doesn’t] deal with and [he doesn’t] like to be
around.” Koonce “didn’t inquire into it any further.” Plaintiff did not attend the
picnic, and he did not receive any discipline for not attending the picnic.
With regard to his lay off, Plaintiff asked Koonce “why me,” and Koonce
told him that “they were laying off people throughout the building, … and it was
budget cuts, that Mark Suissa told him he had to lay off someone in Maintenance –
a painter in Maintenance is what he said.”
During his deposition, Plaintiff admitted that Koonce did not reference his
religion or tell him that his religion was the reason for his lay-off.
During his deposition, Plaintiff testified that the “religion” referenced in his
Charge of Discrimination – “Israelite” – is not actually a religion, but rather is an
“ethnicity and a culture” and a “tribal name,  a surname.”
During his deposition, Plaintiff testified twice that he does not have a
religion “per se.” During his deposition, testified that “the way you could describe
my religion would be considered Yahwism,” but admitted he did not reference
“Yahwism” in his Charge of Discrimination.
Defendant maintains an equal opportunity employment policy and a
harassment policy prohibiting unlawful harassment and a procedure for reporting
perceived harassment. Plaintiff admitted he received a copy of both policies and
was aware of their contents.
According to Plaintiff, three of his co-workers made jokes to him on
occasion about his beard and his dietary habits. These jokes began about 3-4
months into his 2012 employment. Plaintiff testified that he does not remember
specific dates any comments were made to him or specifically what was said to
him on any particular occasion. At first, Plaintiff made jokes to his co-workers
about their habits, too. He testified that, a couple of months into his 2012
employment, he complained to Koonce about his workload being unfair, but he did
not tell Koonce that he believed it was unfair because of his religion. He also
testified that he complained to Koonce about two co-workers sleeping on the job
and having more work assignments than those two co-workers. With respect to his
complaints, Plaintiff testified:
Q: Okay. At any time when you complained, did you ever specifically tell
Mr. Koonce that you felt you were being given more work assignments
because of your religion?
A: Well, I think I alluded to it. I didn’t specifically, I don’t think, say it. I
might have said it in a way like, ‘Hey, is this because, you know, of my
religion?’ That’s how I most likely phrased it to him, in those kind [sic] of
Plaintiff testified that once or twice he went to the Human Resources office
and told Menees he would like to speak with him, but there were other people in
the office at the time. Plaintiff testified that he did not tell Menees he wanted to
talk to him about discrimination or unfair treatment.
Plaintiff never told Koonce that he experienced religious discrimination or
unfair treatment because of his religion. Plaintiff never reported unfair treatment or
discrimination to Defendant’s corporate office.
Prior to his lay off in October 2013, Plaintiff never reported religious
discrimination or harassment to the Equal Employment Opportunity Commission
(“EEOC”) or to the Missouri Commission on Human Rights (“MCHR”).
Plaintiff never received any formal discipline during his employment.
He also testified that he believed, like him, Vance Flemings also received more
pressure and assignments from Koonce.
In March 2013, Plaintiff turned down a job with the City of St. Louis
offering $13.28 per hour because he “liked the environment” and “enjoyed the
work” he did at Northview.
Plaintiff responded to Defendant’s Statement of Undisputed Material Facts,
however, he failed to produce specific references in the record. Further, Plaintiff
has submitted his own Statement of Undisputed Material Facts, to which
Defendant has objected based on Plaintiff’s failure to cite evidence in the record.
Local Rule 7-4.01(E) provides with respect to summary judgment motions:
A memorandum in support of a motion for summary judgment shall have
attached a statement of uncontroverted material facts, set forth in a
separately numbered paragraph for each fact, indicating whether each fact is
established by the record, and, if so, the appropriate citations. Every
memorandum in opposition shall include a statement of material facts as to
which the party contends a genuine dispute exists. Those matters in dispute
shall be set forth with specific references to portions of the record, where
available, upon which the opposing party relies. The opposing party also
shall note for all disputed facts the paragraph number from movant's listing
of facts. All matters set forth in the statement of the movant shall be deemed
admitted for purposes of summary judgment unless specifically controverted
by the opposing party.
E.D. Mo. L.R. 7-4.01(E). Plaintiff has not met the requirements of Local Rule
4.01(E), and is deemed to have admitted all facts in Defendant's Statement of
Uncontroverted Facts. Turner v. Shinseki, 2010 WL 2555114, at *2 (E.D.Mo. June
22, 2010) (citing Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168
(E.D.Mo.1999), aff'd, 232 F.3d 907 (8th Cir.2000), cert. denied, 531 U.S. 877).
However, Plaintiff's failure to respond properly to the motion for summary
judgment does not mean summary judgment should be automatically granted in
favor of Defendant. Even if the facts as alleged by Defendant are not in dispute,
those facts still must establish Defendant is entitled to judgment as a matter of law.
Autry Morlan Chevrolet Cadillac, Inc. v. RJF Agencies, Inc., 332 S.W.3d 184, 191
(Mo.Ct.App.2010) (citations omitted). See also Burnett v. Acikgoz, No. 4:13–CV–
1990–JAR, 2015 WL 4603475, at *2 (E.D.Mo. July 30, 2015); Vandergrift v.
Emerson, 2012 WL 15021, at *1 (W.D.Mo. Jan. 4, 2012).
Plaintiff has submitted the affidavits of Vance Flemings and Donald Shell, a
current employee and a former employee, respectively, of Defendant. Mr.
Flemings avers that he witnessed jokes at Plaintiff’s expense because of his
religion. Mr. Shell avers that he witnessed Plaintiff “being discriminated against”
because of his religion by the workers in maintenance.
Plaintiff contends he was discharged in violation of Title VII because of his
religion. For a Title VII claim to survive a motion for summary judgment, Plaintiff
must present direct evidence of unlawful discrimination or create an inference of
unlawful discrimination under the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “To prove intentional
discrimination through direct proof, a plaintiff must establish ‘a specific link
between the alleged discriminatory animus and the challenged decision, sufficient
to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated the employer's decision.’ ” Gibson v. American Greetings
Corp., 670 F.3d 844, 853 (8th Cir.2012) (quoting Putman v. Unity Health Sys., 348
F.3d 732, 735 (8th Cir.2003)). Under the burden-shifting framework, plaintiff must
first establish a prima facie case of discrimination. Jackson v. United Parcel Serv.,
Inc., 643 F.3d 1081, 1086 (8th Cir.2011). “A prima facie case creates a rebuttable
presumption of discrimination.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th
Cir.2011). The burden then shifts to the defendant to prove a legitimate,
nondiscriminatory reason for its action. Id. If defendant establishes such a reason,
the presumption disappears, and the burden shifts back to the plaintiff to prove that
defendant's proffered reason is a pretext for unlawful discrimination. Id.
To establish a prima facie case for religious discrimination, Plaintiff must
show that (1) he is a member of a protected class because of his religious affiliation
or beliefs, (2) he met his employer's legitimate expectations, (3) he suffered an
adverse employment action, and (4) “the circumstances give rise to an inference of
discrimination (for example, similarly situated employees outside the protected
class were treated differently).” Gibson, 670 F.3d at 854 (quoting Lake v. Yellow
Transp., Inc., 596 F.3d 871, 874 (8th Cir.2010)); Brasch v. Peters, 479 F.Supp.2d
1045, 1070 (E.D.Mo.2007).
Plaintiff has not presented any direct evidence of religious discrimination.
Therefore, this Court will analyze Plaintiff's claim under the McDonnell Douglas
Initially, Plaintiff admitted in his deposition that he did not have a religion,
per se, rather, Israelite” – is not actually a religion, but rather is an “ethnicity and a
culture” and a “tribal name,  a surname.” Assuming arguendo that this
constitutes a religious affiliation, Plaintiff has presented no evidence that he
suffered an adverse employment action because of his religious affiliation. The
only evidence of any mention of Plaintiff’s religious beliefs to anyone involved in
Plaintiff’s discharge was that Plaintiff told Koonce that he was not attending the
picnic because of his religion. This alone, however, fails to rise to the level
required to establish religious discrimination because there is absolutely no
evidence of an adverse employment action based on Plaintiff’s reasoning for not
attending the company picnic.
Additionally, Plaintiff has failed to satisfy the fourth element of his prima
facie case, to wit: circumstances give rise to an inference of discrimination.
Plaintiff has presented no evidence to establish that similarly situated employees
outside the protected class were treated differently. Indeed, Ms. Bradford-Taylor
was discharged as well as Plaintiff for the same reason as Plaintiff; she was the
employee with the least seniority in nursing. Plaintiff has not identified any
similarly situated employees outside of his protected class who were treated more
favorably than Plaintiff. Plaintiff has not provided any evidence that Defendant
treated him differently than other employees. Further, there is no evidence of
biased comments related to Plaintiff's religion by Deering, who made the final
decision to discharge Plaintiff. Plaintiff has not offered any evidence that Deering
ever made any discriminatory comments about Plaintiff’s faith during his
employment with Defendant.
Even if this Court assumed, arguendo, that Plaintiff could establish a prima
facie case for religious discrimination, Defendant has established a legitimate,
nondiscriminatory reason for the decision to terminate plaintiff's employment. The
undisputed facts evidence that Plaintiff was discharged because budget cuts were
Plaintiff has not presented any evidence, apart from his own sheer
speculation, that Defendant’s reason for terminating his employment was a pretext
for illegal discrimination, or which creates an inference that religious
discrimination was the real reason for the termination. “A reason cannot be proved
to be a pretext for discrimination unless it is shown both that the reason was false
and that discrimination was the real reason.” Bone v. G4S Youth Services, LLC,
686 F.3d 948, 955 (8th Cir.2012) (internal quotations omitted). The federal courts
do not “sit as super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that those judgments
involve intentional discrimination.” Bone v. G4S Youth Services, LLC, 686 F.3d
948, 955 (8th Cir.2012) (quoting Hutson v. McDonnell Douglas Corp., 63 F.3d
771, 781 (8th Cir.1995)).
In order to establish discriminatory harassment in the workplace, Plaintiff must
prove: (1) membership in a protected group; (2) subjection to unwelcome
harassment based on his protected status; (3) that “the harassment affected a term,
condition, or privilege of [his] employment;” (4) that “[his] employer knew or
should have known of the harassment;” and (5) that Defendant “failed to take
proper action.” Stewart v. Rise, Inc., 791 F.3d 849, 860 (8th Cir. 2015). To
determine whether the harassment affected his employment, “[the court]
examines[s] all 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.” Clay v. Credit Bureau Enterprises, Inc., 754 F.3d
535, 540 (8th Cir. 204) (quoting Singletary v. Mo. Dep't of Corr., 423 F.3d 886,
892-93 (8th Cir. 2005) (quoting Bainbridge v. Loffredo Gardens, Inc., 378 F.3d
756, 759 (8th Cir. 2004))).
The record before the Court establishes that Plaintiff never made any
complaints to those in authority who could have stopped any comments from
Plaintiff’s co-workers. Furthermore, Plaintiff has presented no evidence of any
comments which adversely affected his job performance. Indeed, Plaintiff enjoyed
his work and passed up another job offer paying more money because he liked
what he was doing. He participated in some of the teasing in the workplace, and
his claims of discriminatory harassment were, based on the record before the
Court, mere offensive utterances, rather than severe, physically threatening or
humiliating conduct. Plaintiff has failed to establish a prima facie case of religious
“Mere utterance of an epithet which engenders offensive feelings in an
employee does not sufficiently affect the conditions of employment to support a
claim of hostile work environment.” Arraleh v. County of Ramsey, 461 F.3d 967,
979 (8th Cir.2006). (internal quotations and citations omitted). “A recurring theme
to be derived from these cases ‘is that simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.’ ” Brannum v. Missouri Dept.
of Corrections, 518 F.3d 542, 548 (8th Cir.2008) (quoting Faragher v. City of
Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
Plaintiff contends he was discharged in retaliation. As with a discrimination
claim, to survive a motion for summary judgment, Plaintiff must present direct
evidence of retaliation or create an inference of retaliation under the burdenshifting framework established in McDonnell Douglas. Pye v. Nu Aire, Inc., 641
F.3d 1011, 1020 (8th Cir.2011). “Direct evidence of retaliation is evidence that
demonstrates a specific link between a materially adverse action and the protected
conduct, sufficient to support a finding by a reasonable fact finder that the harmful
adverse action was in retaliation for the protected conduct.” Id. (citing Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345
(2006)). Absent direct evidence of retaliation, the burden-shifting framework is
applied in the same manner as with a discrimination claim.
Title VII makes it unlawful for an employer to discriminate against an
employee because the employee “has opposed any practice made an unlawful
employment practice [by Title VII] ... or ... has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing [under
Title VII].” 42 U.S.C. § 2000e–3(a). “The two clauses of this section typically are
described, respectively, as the opposition clause and the participation clause.”
Barker v. Missouri Dept. of Corrections, 513 F.3d 831, 834 (8th Cir.2008).
To establish a prima facie case of unlawful retaliation, Plaintiff must
establish that (1) he engaged in protected activity, (2) his employer took an adverse
action against him, and (3) the adverse action was causally linked to the protected
activity. Tyler v. University of Arkansas Bd. of Trustees, 628 F.3d 980, 985 (8th
Cir.2011). “In terms of the causal connection, the plaintiff must show that the
protected conduct was a ‘determinative—not merely motivating—factor in the
employer's adverse employment decision.’ ” Id. (quoting Van Horn v. Best Buy
Stores, L.P., 526 F.3d 1144, 1148 (8th Cir.2008)).
“If an employee establishes a prima facie case of retaliation, the burden
shifts to the employer to articulate a legitimate, non-retaliatory reason for its
action; if the employer does so, the burden shifts back to the employee to put forth
evidence of pretext, the ultimate question being whether a prohibited reason, rather
than the proffered reason, actually motivated the employer's action.” Pye v. Nu
Aire, Inc., 641 F.3d 1011, 1021 (2011) (quoting Fercello, 612 F.3d at 1077–78).
“An employee can prove that his employer's articulated justification for an adverse
employment action is pretext either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of credence.” Id. “Either
route amounts to showing that a prohibited reason, rather than the employer's
stated reason, actually motivated the employer's action.” Id. (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011)).
As with his religious discrimination claim, plaintiff has not presented any
direct evidence of discriminatory treatment based on retaliation. As a result, his
claim of retaliation is also analyzed under the McDonnell Douglas burden-shifting
framework. Defendant argues that Plaintiff's retaliation claim fails because he was
not engaging in protected activity and the evidence does not establish a causal
relationship between his complaints and her discharge.
Defendant contends that Plaintiff's complaints were solely about workload
and had nothing to do with his religion.
Plaintiff cannot establish he engaged in protected activity simply by
submitting that he made a vague, unsupported Complaint of discrimination after he
was told he was being discharged. Moreover, Plaintiff has presented no evidence
to show that any protected activity he could establish was the “but-for” cause of his
discharge. Nothing in the record even remotely suggests that the given reason—
budgetary cuts—was a pretext for religious discrimination.
There are simply no facts in the record before this Court to suggest that
Plaintiff's religion or his complaints were the reasons for, or even a contributing
factor in, the decision to terminate Plaintiff's employment. Additionally, the
legitimate, non-pretextual reason for the termination of Plaintiff's employment is
evident. As a result, Defendants is entitled to judgment as a matter of law on
Plaintiff's claims of religious discrimination, religious harassment and retaliation
under Title VII.
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 65] is granted.
A separate Judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 9th day of February, 2017.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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