Wallendorf v. Ameren UE et al

Filing 80

ORDER entered by Judge Nanette Laughrey. Ameren UE's Motion for Summary Judgment [Doc. # 73] is GRANTED.(Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JOSEPH L. WALLENDORFF,

)
)
)
Plaintiff,
)
)
v.
)
)
UNION ELECTRIC COMPANY d/b/a
)
AMERENUE,
)
)
and
)
)
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 148 )
)
)
Defendants.

Case No. 2:10-cv-04065-NKL

ORDER
Joseph L. Wallendorff (“Plaintiff”) sued his employer, Union Electric Company
(“Ameren UE”) and his union, International Union of Operating Engineers, Local 148,
for age discrimination and retaliation. The Court has previously resolved all of Plaintiff’s
claims except for his retaliation claim against Ameren UE violations of 42 U.S.C. §
2000e, Title VII of the Civil Rights Act of 1964. For the following reasons, Ameren
UE’s Motion for Summary Judgment on this claim is now GRANTED.
I.

Factual and Procedural Background1

1

The Court has considered the parties’ statements of undisputed fact which are supported by
evidence. In considering the pending motion, the Court has drawn all inferences in favor of the
non-movant.
1

Plaintiff was employed by Ameren UE at the Callaway Nuclear Plant
(“Callaway”) as a Nuclear Electrical Mechanic from 1984 to 1999. Plaintiff later
transferred to a different facility at his request, and worked as a Serviceman until he
voluntarily retired in 2004. Throughout Plaintiff’s employment with Ameren UE, he was
a member of International Union of Operating Engineers, Local 148, formerly a
defendant in this action (“Local 148”).
In April 2008, Plaintiff applied for a full-time position as a supervisor in
Callaway’s Training Department, a management position. Plaintiff’s application for the
position was reviewed by Ameren UE employee, Matthew Arri. Plaintiff was not
selected for the position. Plaintiff filed a charge of discrimination claiming he was not
selected for the training supervisor position on the basis of age. Ameren UE’s human
resource department interviewed individuals connected with the selection process and
only individuals directly related to Plaintiff’s age discrimination charge were told about
the charge. These employees were instructed to keep information regarding the charge
confidential and were reminded of Ameren’s policy prohibiting retaliation. Employees of
Local 148 and the Facilities Maintenance workgroup at Callaway were not informed of
Plaintiff’s charge.
Retired Callaway employees are occasionally offered temporary employment, and
are permitted to work for Ameren UE a maximum of 1,000 hours per calendar year.
Temporary employment is not guaranteed, and at no time did Ameren UE promise or

2

agree to hire Plaintiff after his retirement. Following his retirement, Plaintiff was hired as
a temporary employee three times.
Approximately every eighteen months, Callaway hires hundreds of temporary
workers to assist in the maintenance, repair, and refuel work while Callaway’s reactor is
refueled. These refueling periods are referred to as “refuels” or “outages” and each refuel
is given a consecutive number. Refuels typically last approximately six weeks. The goal
is to complete all of the required work in the shortest period of time. Temporary workers
who work during refuels are required to successfully complete training during their
temporary employment.
Refuel 16 began approximately October 11, 2008, and concluded on November 8,
2008. Local 148 operates a Temporary Referral Worker (“TRW”) program, in which a
list of Local 148 members is compiled and eligible TRW workers are referred to
Callaway for hire during outages (the “Referral List”). Local 148 members who wish to
be considered for TRW work must pay a $10.00 monthly referral fee to stay on the
Referral List. Plaintiff paid to be on the list prior to being hired for Refuel 16. Although
Plaintiff had in the past not been on the Referral List–for example, he did not pay to be on
the Referral List in 2006–he had once performed temporary work at Callaway through
Manpower Professionals, a third-party staffing company.
Ken Grissom, an Ameren UE employee, is the Referral and Training Coordinator
for Local 148. Grissom determines if there are Local 148 members qualified and available
for temporary work and submits the Referral List. In September 2008, Ken Grissom

3

contacted Plaintiff about working as a TRW for Refuel 16. Grissom had no knowledge of
Plaintiff’s discrimination charge against Ameren UE. In a letter dated September 22, 2008
and signed by Arri–who had reviewed Plaintiff’s April 2008 application for supervisor–,
Ameren UE offered Plaintiff a TRW position for Refuel 16 as an electrical maintenance
technician. Plaintiff was the only TRW hired as an electrical maintenance technician for
Refuel 16. Plaintiff was instructed to report to work at Callaway on September 29, 2008.
Shortly before Refuel 16 began, Callaway began a new program for generating
training of temporary employees, and there were several glitches in the process regarding
training schedules. For Refuel 16, Callaway processed more than 800 requests for access.
Anna Lee, Supervisor of Access Authorization and Fitness for Duty, was in charge of
staff who prepared in-processing packets for the incoming temporary workers. During
Refuel 16, Anna Lee was not aware that Plaintiff had filed an age discrimination claim.
Plaintiff’s packet did not contain a training schedule, but he did receive a password
to log in to Ameren UE’s computer network for training. Plaintiff asked both
administrative personnel and John Neudecker, Ameren UE’s Superintendent for Labor
Relations, why he did not receive a training schedule. Neudecker responded that they
“didn’t know [yet] what they were going to do with” Plaintiff, [Doc. #74-7, at 67:18-25
(Deposition of Plaintiff)], and administrative personnel recommended that he just wait.
Rather than wait, Plaintiff began his training without a training schedule. Most of the
required training is computer-based and self-led and Plaintiff was familiar with Ameren
UE’s computer-based training because of his past employment at Callaway. On one

4

occasion, he encountered difficulty with a training supervisor who did not want him to
participate in a class without a schedule. However, Plaintiff was allowed to sit in on the
class when it turned out that there was an empty seat. Although Plaintiff never received a
training schedule, Plaintiff received all the training required for his TRW position.
On September 30, 2008, Plaintiff spoke to Bob Barton in the Training Department.
Plaintiff did not complain that he was not receiving training, but rather he talked about his
age case. [Doc. # 77-9, at 4]. Thus, Barton was not aware that Plaintiff was denied any
training. Because Plaintiff’s discrimination charge remained under investigation, Barton
told Plaintiff that he could not respond to Plaintiff’s questions about that charge.
Plaintiff’s assigned supervisor at the time of his hiring was Dennis Kraftor, a
supervisor in the Electrical Maintenance Shop. The Electrical Maintenance Shop at
Callaway, however, did not ask for Plaintiff, [Doc. # 77-3 (email from Neudecker, dated
October 2, 2008)], yet Ameren UE was obligated to hire Plaintiff pursuant to an
agreement with Local 148. In an email dated September 30, 2008, Neudecker wrote to
Grissom that after Plaintiff finished with in-processing, Plaintiff should report to the
Electrical Shop. Neudecker further wrote that he would obtain the name of Plaintiff’s
supervisor later that day.
Plaintiff then reported to Derek Fanguy, the General Supervisor for the Electrical
Maintenance Department. Brent Jungmann, the Electrical Superintendent at Callaway,
assigned Plaintiff to work with Day and Zimmerman, an outside electrical contractor.

5

Jungmann had never met Plaintiff before Refuel 16 and knew nothing about him or that
Plaintiff had filed an age discrimination claim.
During outages, temporary workers are assigned to work on an as-needed and
as-qualified basis. In many instances, permanent Callaway employees are assigned to
tasks specific to the outage, and temporary workers are assigned to routine tasks. It is a
violation of Local 158's collective bargaining agreement when employees who are hired
through the union are assigned to work for another company.
On October 3, 2008, Plaintiff reported to Lonnie Stilwell, Electrical
Superintendent for Day and Zimmerman. Plaintiff worked for Day and Zimmerman for
approximately three days. [Doc. # 74-7, at 53:11-13]. He was first assigned to work with
Day and Zimmerman electricians “to do jobs within the plant and make sure they don’t
make a mistake and don’t do anything they’re going to get in trouble for and kind of
watch over them.” [Doc. # 74-7, at 53:24-55:2]. After Plaintiff had finished with
supervising one task, J.D. Enloe, a working supervisor with Day and Zimmerman,
disagreed with what Plaintiff was doing and advised Plaintiff to speak with Stilwell.
Stilwell told Plaintiff to sit in an office and not to do anything. Because Plaintiff thought
that instruction was for the entire outage, he spoke with Joe Simmers, the Ameren UE
supervisor over Day and Zimmerman’s workers.
In an email dated October 8, 2008, Fanguy informed Grissom that he needed a
copy of Plaintiff’s recent resume, or equivalent documentation, to prove that Plaintiff was
qualified to perform assigned tasks. [Doc. # 77-17]. On October 8, 2008, Jungmann

6

assigned Plaintiff to the Facilities Maintenance workgroup. There Plaintiff was
supervised by Sherry Knoepflien. [Doc. # 74-4, at 55:9-56:19]. Facilities Maintenance is
responsible for non-production equipment. Because work that supports the plant’s power
production generally takes priority, there was a backlog of maintenance tasks for Plaintiff
to perform. [Doc. # 74-2, para 2 (Affidavit of Knoepflein)]. While working under
Knoepflein, Plaintiff primarily performed general maintenance tasks, including working
on toilets.
After being assigned to Facilities, Plaintiff encountered Enloe, the Day and
Zimmerman supervisor with whom he had a disagreement, who asked, “You still here?”
and snickered.
There is a toolcrib at Callaway from which employees, including TRWs, can
borrow needed tools. The tool room attendants, who check the tools out to employees, are
members of Local 148. Tools are kept in the Facilities Maintenance work area and are
available for use. During Refuel 16, Plaintiff informed Knoepflein that a Local 148
member had refused to issue him tools. Knoepflein told Plaintiff she would get the tools
he needed. Plaintiff also brought in his own plumbing tools from home to keep the toilets
working.
Due to the scope of the work conducted during an outage, critical jobs are given
priority, supervisors are not always available to provide work briefs, and electricians are
not always available for backup. Non-critical jobs are postponed until adequate personnel
can be available. One example of a job that is considered critical by the Fire Engineer is

7

the “Fire Systems” at the training center, yet Plaintiff was denied assistance to complete
this job. [Doc. # 77-1, ¶ 8 (Affidavit of Plaintiff)].
Plaintiff worked full-time during Refuel 16, and was kept busy, despite Plaintiff’s
difficulty in getting assistance on electrical work that required the presence of another
electrician for safety reasons. Plaintiff also did not receive work briefs from the Electrical
Department that he requested because the supervisor was too busy. [Doc. # 74-8, at
76:12-17 (Deposition of Plaintiff)]. However, Plainitff eventually obtained the help he
needed from the Facilities Maintenance workgroup to complete certain assigned tasks.
There were also many tasks that Plaintiff was able to perform alone. Knoepflein stated
that Plaintiff performed “satisfactorily,” and indicated that she “would like to have his
continued help.” [Doc. # 74-2, ¶¶ 4-5 (Affidavit of Knoepflein)].
Plaintiff received the same pay and overtime compensation as the other Local 148
TRWs. No Ameren UE employee, other than Plaintiff’s son, talked to Plaintiff about his
age discrimination case.
On November 7, 2008, at the conclusion of Refuel 16, Plaintiff was released from
his TRW position. The majority of the other TRWs were also released at or around the
same time. No electricians stayed on as temporary workers after November 7. Between
Refuel 16 and Refuel 17, no temporary workers were hired by Union Electric as
electricians for Callaway.
Refuel 17 began in April 2010 and concluded in June 2010. Plaintiff’s neighbor,
who is in management at Callaway, had asked management to bring Plaintiff in to work

8

Refuel 17. However, Plaintiff did not seek a TRW position for Refuel 17, had not paid
monthly referral fees in order to be placed on the Referral List at the time of Refuel 17,
and was not hired for Refuel 17.
On or about August 21, 2008, Plaintiff filed a Charge of Discrimination with the
Missouri Commission on Human Rights, alleging that Ameren UE had discriminated
against him based on his age. On September 12, 2008, mail was sent by the Equal
Employment Opportunity Commission to Ameren UE’s St. Louis office with notices of
Plaintiff’s charge. On or about February 18, 2009, Plaintiff filed identical Charges of
Discrimination with the Missouri Commission on Human Rights and the Equal
Employment Opportunity Commission alleging retaliation discrimination by Ameren UE
and Local 148; he later amended the charge. The Amended Charge alleged the following
against both defendants:
On August 21, 2008, I filed an age discrimination charge with MCHR case
number E-08/08-33932 and EEOC case number 28E-2008-01933. On
September 26, 2008 I was informed by the Respondent that I was hired and
my start date was September 29, 2008. When I arrived on the start date, I
found out I was not scheduled for training as required. The Administration
personnel had no answers, they asked me to wait. I proceeded to take
training anyway, that I knew I needed to regain my class 1 Electrical
Worker status. On September 30, 2008 I spoke to a supervisor over training
about the discrimination charge I had filed for not being interviewed for the
training position. He declined to speak to me due to the case.
I believe I was denied training in retaliation for filing a
discrimination complaint against the Respondents.
Between October 2, 2008 and October 17, 2008 I was transferred to
several departments where I was not assigned any specific duties. Between
October 17, 2008 and October 20, 2008 I was not given any assistance or
support by the employees or supervisors. I was also denied work tools and
had to bring my own tools. On November 11, 2008 I was discharged.

9

I believe I was not supported, given assistance and denied access to
work tools in retaliation for filing a discrimination complaint against the
Respondents.
As remedy, I am seeking an end to the discrimination, compensation
for lost wages, compensation for my pain, suffering, and humiliation, and
anything else the Commission deems just and proper.
[Doc. #77-5].
The EEOC mailed Plaintiff a right-to-sue notice on November 5, 2009, in
connection with Plaintiff’s charge of retaliation. [Doc. #47-11].
Plaintiff then commenced this action. He filed an amended complaint against
Defendants Ameren UE and Local 148 on May 4, 2010. [Doc. # 31]. On May 24, 2010,
the Court dismissed all allegations brought pursuant to the Missouri Human Rights Act as
well as the age discrimination claim asserted under the ADEA. [Doc. # 36]. The Court
also granted summary judgment as to Plaintiff’s retaliation discrimination claim against
Local 148. [Doc. # 67]. Only Plaintiff’s retaliation discrimination claim against
AmerenUE remained pending before the Court.
Plaintiff’s amended complaint alleges the following retaliation charges against
Ameren UE:
Defendant Ameren hired Plaintiff on September 24, 2008, and thereafter
retaliated against Plaintiff for Plaintiff’s Complaint of age discrimination, in
the following ways:
a. failure to provide training to Plaintiff;
b. failure to assign Plaintiff to appropriate duties;
c. failure to provide Plaintiff with tools.
Defendant Ameren discharged Plaintiff on November 11, 2008, in
retaliation for Plaintiff’s Complaint of age discrimination.
[Doc. # 31, ¶ 19].

10

II.

Summary Judgment Standard
Summary judgment is proper “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion” and must identify “those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the
non-moving party to respond by submitting evidentiary materials that designate “specific
facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary
judgment is appropriate, a district court must look at the record and any inferences to be
drawn from it in the light most favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248.
III.

Discussion
Plaintiff alleges that Ameren UE retaliated against him for filing an age

discrimination complaint by failing to provide training to Plaintiff, failing to assign
Plaintiff to appropriate duties, and failing to provide Plaintiff with tools. He also claims
that Ameren UE retaliated against him by refusing to retain him as a temporary worker

11

after Refuel 16 was completed or to rehire him for Refuel 17, and because some fellow
union members would not talk to him while he worked on Refuel 16.
To establish a retaliation claim under Title VII, Plaintiff must show that: “(1) [he]
engaged in protected conduct; (2) reasonable employees would have found the challenged
retaliatory action materially adverse; and (3) the materially adverse action was causally
linked to the protected conduct.” Recio v. Creighton Univ., 521 F.3d 934, 938-39 (8th Cir.
2008) (quoting Brenneman v. Famous Dave's of Am., Inc., 507 F.3d 1139, 1146 (8th Cir.
2007)).
There is no dispute that Plaintiff engaged in conduct that is protected activity filing an age discrimination complaint against Ameren UE. Further Plaintiff has shown
that Ameren UE failed to provide the Plaintiff a training schedule sheet, assigned him to a
private contractor and to facilities maintenance instead of electrical maintenance and did
not retain him as a temporary worker after Refuel 16 was completed or rehire him for
Refuel 17. It is also undisputed that some fellow union members would not talk to him
and he was not automatically given tools by Ameren UE, but was told by his supervisor
that she would get the tools that he requested. However, to establish a prima facie case of
retaliation discrimination, Plaintiff must show that these actions were materially adverse
to him and were done by Ameren UE because Plaintiff filed an age discrimination
complaint against it. He has not met his burden to do so.
First Plaintiff has not established that his failure to get a training schedule and his
failure to get access to tools until he asked for them were materially adverse actions.

12

“Petty slights, minor annoyances, and simple lack of good manners” will not rise to the
level of materially adverse treatment. Clegg v Arkansas Dept of Correction, 496 F. 3d
922, 929 (8th Cir. 2007). As for rudeness by fellow union workers, Plaintiff has failed to
show that Ameren UE was responsible for that conduct or that the conduct was materially
adverse to Plaintiff. This also falls in the category of petty slights and lack of good
manners.
Second, as for Plaintiff’s assignment to a private contractor in violation of union
rules and assignment to facilities maintenance instead of electrical maintenance, Plaintiff
has failed to show that this conduct was caused by Plaintiff’s age discrimination
complaint. The Ameren UE employee who made these assignments testified that he was
not aware of Plaintiff’s age discrimination complaint and there is no evidence that any
other Ameren UE employee was involved in those assignments. Although Plaintiff
testified that some unidentified union worker asked Plaintiff’s brother about Plaintiff’s
age discrimination claim, that inadmissible hearsay is not sufficient to refute the direct
testimony of the decision maker that actually made Plaintiff’s work assignments. Even in
Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 367-68 (8th Cir. 1994), where the inquiry of the
Court of Appeals focused on whether mere suspicion as opposed to knowledge was
required, the evidence was that the president of the company was insistent on getting the
name of the employee who filed an OSHA complaint against the company so that he
could “take care of the problem”; the president told the OSHA inspector that he suspected
the complainant was a woman who filed complaints in the past; and based on his

13

interaction with the president, the OSHA inspector thought that the president would
“harass the complainant if he knew who it was.” Id. at 364. Plaintiff has submitted no
evidence even close to this to support his contention that everyone at Ameren UE knew
about his age discrimination claim.
Third, as for Ameren UE’s failure to keep Plaintiff on as a temporary worker after
Refuel 16 was completed, the undisputed evidence is that Ameren UE did not keep the
majority of temporary workers on that were hired for Refuel 16. As for Ameren UE’s
failure to rehire Plaintiff for Refuel 17, it is undisputed that Plaintiff did not seek a
position for Refuel 17 and did not pay the $10 fee to get on the union’s referral list that
was relied on by Ameren UE to find temporary workers for its refuels. Therefore no
reasonable juror could conclude that Ameren UE refused to employ Plaintiff in these
union positions as a result of his filing an age discrimination claim.
Lastly, Plaintiff argues that the only explanation for all of this conduct was
retaliation, but showing materially adverse conduct is not enough. There must be some
actual evidence that the conduct was in retaliation for protected activity. It would
conflate the two elements if a juror could infer retaliatory animus simply because an
employee was adversely affected by an employer’s conduct.
Because Plaintiff has not presented sufficient evidence to establish a prima facie
case, Ameren UE’s Motion for the Summary Judgment is granted.

2

2

Alternatively, summary judgment is proper because Plaintiff has not presented evidence that
Ameren UE’s legitimate, non-discriminatory reasons for its actions were pretext for
discrimination.
14

III.

Conclusion
Accordingly, it is hereby

1

ORDERED that Ameren UE’s Motion for Summary Judgment [Doc. # 73] is
GRANTED.

s/ NANETTE K. LAUGHREY
NANETTE K. LAUGHREY
United States District Judge
Dated: July 5, 2011
Jefferson City, Missouri

15