Flores v. Tyson Foods, Inc.

Filing 199

MEMORANDUM AND ORDER that Defendant's motion for summary judgment 176 is granted, and this case is dismissed. Plaintiff's opposition to the summary judgment motion 180 is overruled. Defendant's motion to strike 192 is granted in part and denied in part as set forth herein. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUANA S. FLORES,
Plaintiff,

4:12CV3089

vs.
MEMORANDUM AND ORDER
TYSON FOODS, INC.,
Defendant.

This matter is before the court on defendant’s motion for summary judgment
pursuant to Fed. R. Civ. P. 56, Filing No. 176. Plaintiff, who is pro se, filed a motion in
opposition to the summary judgment. Filing No. 180. Further, defendant filed a motion
to strike, Filing No. 192, plaintiff’s response, Filing No. 189, or in the alternative to
submit objections.

Plaintiff filed this action alleging employment discrimination in

violation of 42 U.S.C. § 2000e et seq. on the basis of sexual harassment, retaliation and
constructive discharge. Plaintiff filed her claim with the Equal Opportunity Commission
and the Nebraska Equal Opportunity Commission who found no just cause. The court
has carefully reviewed the motion, briefs, evidence and the relevant law and concludes
the motion for summary judgment should be granted.
STANDARD OF REVIEW
On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows 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. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp.,
409 F.3d 984, 990 (8th Cir. 2005). The plain language of Rule 56(c) mandates the entry

of summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where unresolved issues are
primarily legal rather than factual, summary judgment is particularly appropriate.”
Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004). The burden of
establishing the nonexistence of any genuine issue of material fact is on the moving
party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
“The movant ‘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.’” Torgerson v. City of
Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at
323). If the movant does so, “the nonmovant must respond by submitting evidentiary
materials that set out ‘specific facts showing that there is a genuine issue for trial.’” Id.
(quoting Celotex, 477 U.S. at 324). On a motion for summary judgment, the “‘facts must
be viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.’” Id. (quoting Ricci v. DeStefano, 129 S. Ct. 2658, 2677
(2009)).
Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Id. The
nonmoving party “‘must do more than simply show that there is some metaphysical
doubt as to the material facts,’ and must come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith

2

Radio Corp., 475 U.S. 574, 586–87 (1986)). Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue
for trial. Id.
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, 643 F.3d at 1043 (quoting Fercello v.
County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)).

Nevertheless, “[a]t the

summary judgment stage, the court should not weigh the evidence, make credibility
determinations, or attempt to determine the truth of the matter.” Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 249 (1986). The court’s function is to determine whether a
dispute about a material fact is genuine, that is, whether a reasonable jury could return
a verdict for the nonmoving party based on the evidence. Id. at 248. To be material, a
fact “must affect the outcome of the lawsuit under governing law.” Id. “The evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in [the
nonmoving party’s favor].” Id. at 255. “If reasonable minds could differ as to the import
of the evidence,” summary judgment is inappropriate. Id. at 250. In a discrimination
case, when the record on summary judgment is fully developed, the “court need only
decide whether, on the record as a whole, there is a genuine issue for trial on the
ultimate question of discrimination vel non.” Torgerson, 643 F.3d at 1054 (Colloton, J.,
concurring).
Pro se complaints are to be liberally construed, but must still allege sufficient
facts to support claims advanced. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

3

BACKGROUND
Plaintiff worked at the Tyson Food packing plant from May of 2009 until
September 8, 2010, as a “trim outside skirt” on processing line 941. She worked the
second shift, from 3 p.m. until 11:45 p.m., Monday through Friday. Her job consisted of
receiving a piece of meat from the person next to her, taking the fat off the meat, and
cutting it into a specific shape. She then placed that cut of meat on the conveyor belt.
Production supervisors, those in yellow hats, supervised these employees.
In September of 2010, her production supervisors included Aurelio Barrios and
Elida Rodriquez. Supervisors on duty observed and corrected employees on the line
and granted requests for bathroom breaks. Bill Hoisington, the plant superintendent for
plaintiff’s shift, wore a green hat and had more authority than did the yellow hats. Mark
Sarratt served as the plant manager and was a step higher than Hoisington. Suzann
Reynolds served as the human resources manager and received and investigated
employee complaints, and her assistant, Lupita Medrano, likewise investigated
complaints, including discrimination and harassment claims. Tyson has a discrimination
policy. Further, all employees receive training and are given information about how to
address discrimination and harassment issues. The employees also receive a hotline
number. Plaintiff admits she received this training and orientation. See Filing No. 178,
Attachments, 1-3; Filing No. 179, Attachments, 1-5. In addition, defendant posts the
reporting process and phone numbers for all employees to see.

Supervisors also

receive additional training each year regarding harassment, discrimination and
retaliation.

4

All of plaintiff’s claims of discrimination and retaliation relate to her immediate line
supervisor, Barrios. Plaintiff states that Barrios began harassing her from the first day
of her employment. He allegedly invited her out, talked about going to dinner and
eating tacos, told her she was pretty and had nice teeth, asked her to spend the night
with him, and licked and bit his lip. Also, plaintiff contends Barrios untied her apron on
several occasions and grabbed her bottom and touched her back and shoulders.
On or about September 1, 2010, Barrios told plaintiff she was not rotating the
meat correctly.

Two weeks prior, Barrios counseled plaintiff as well as other line

employees that they were not rotating the meat as trained. Plaintiff began crying on
September 1 and yelling at Barrios. Barrios told plaintiff to go to Hoisington’s office to
discuss the problem, but instead, she went to the personnel office. Medrano saw her
crying and took her to the nurse’s station. Plaintiff then went to Medrano’s office to
discuss her complaint, and then went back to work but knew if anything else happened
she could talk to Medrano, Hoisington, or call the hotline. After her shift, Medrano had
plaintiff write up her statement. Medrano stated there would be an investigation.
The next day plaintiff called the hotline before she went to work and reiterated
her complaint. She indicated to the hotline operator that Barrios acted in the same
manner towards other women. A hotline operator called plaintiff back and asked for
more information so she could conduct a more thorough investigation. Plaintiff did not
provide any additional details, names or witnesses to the hotline operators.
Plaintiff worked the next two days, Thursday and Friday, and Monday was Labor
Day. Plaintiff indicated that no harassing behavior occurred on those days. She did
state that Barrios stood close to her, looked at her, and yelled at her about her duties.

5

No employees witnessed these behaviors, however. Plaintiff did not report any of these
alleged incidents to her supervisors. On Tuesday she returned to work and contends
Barrios again yelled at her about her work and scolded her for asking another
supervisor if she could go to the bathroom, rather than asking him. Also, on Tuesday,
Medrano met with Reynolds, the Human Resources manager, to discuss plaintiff’s
complaint. Plaintiff called the hotline operator again on Wednesday, September 8. The
operator asked plaintiff for more information. Plaintiff did not provide any additional
information.
Plaintiff decided her complaint would not be investigated and gave her notice of
resignation on September 8. Medrano asked plaintiff to reconsider and not resign, and
Medrano said they would attempt to see if plaintiff could be moved. Plaintiff agreed she
would be open to this.

On September 7, Medrano conferred with Reynolds and

concluded plaintiff should be moved. On that same day Medrano spoke with Hoisington
regarding a new position.

Hoisington approved the change and agreed to find an

available position. However, plaintiff did not show up for work on September 9 or 10.
On September 10, plaintiff spoke to Mark Sarratt about her complaint. He told
plaintiff that her complaint would be investigated and that information would be
forthcoming within a few days. Later that day, Medrano called plaintiff and offered her a
comparable position on a different line away from Barrios. Plaintiff did not take the
position. Plaintiff did not return to work again.
Defendant Tyson investigated plaintiff’s complaint. See Filing No. 178, Ex. 6;
Filing No. 179-7 (Human Resources Report of Complaint). This was the first complaint
lodged against Barrios. Medrano substantiated parts of plaintiff’s complaint. Medrano

6

interviewed the two alleged witnesses who witnessed some but not most of the
behavior.

Medrano also interviewed five other women.

Barrios received a written

warning of disciplinary action and warned that further conduct would result in additional
discipline including discharge. Filing No. 178, Ex. A; Filing No. 179, Attach. 1- Ex. A. He
also went through a retraining program.
DISCUSSION
A. Sexual Harassment
A hostile work environment requires proof of the following elements: “(1) the
plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome
harassment; (3) a causal nexus exists between the harassment and the plaintiff’s
protected group status; and (4) the harassment affected a term, condition, or privilege of
employment.” E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th Cir.
2012). The court finds plaintiff is female, and for purposes of this motion for summary
judgment, the court finds Barrios harassed plaintiff on the basis of her gender. Although
the fourth element is arguably not supported by the evidence, the court will assume for
purposes of this motion that plaintiff has established a prima facie case of harassment
which affected some condition of her employment.
Defendant argues, and the court agrees, it is clear defendant took corrective
action and is entitled to the Ellerth-Faragher affirmative defense. “The Ellerth-Faragher
affirmative defense consists of two necessary elements:

(a) that the employer

exercised reasonable care to prevent and correct promptly any sexually harassing
behavior and (b) that the plaintiff employee unreasonably failed to take advantage of

7

any preventative or corrective opportunities provided by the employer or to avoid harm
otherwise.” Weger v. City of Ladue, 500 F.3d 710, 718 (8th Cir. 2007).
First, defendant contends it had a harassment policy which the court may view as
proof it took reasonable care to prevent and correct any harassing behaviors. Crawford
v. BNSF Ry. Co., 665 F.3d 978, 983 (8th Cir. 2012) (affirming summary judgment on
claims for sexual and racial harassment by supervisor). The court agrees. Defendant
had a harassment policy, plaintiff understood and knew about the policy, the
supervisors received training and retraining on the discrimination and harassment
policies, there were multiple avenues for plaintiff to report the harassment, and
defendant had persons who investigated any allegations of harassment.

Thus, the

court determines that the defendant exercised reasonable care to prevent harassing
behavior.
The court now concludes that the plaintiff did not take advantage of the
opportunities given to her by the defendant.

Plaintiff waited 16 months after she

contends the sexual harassment began until she first reported it to the defendant. “A
showing that an employee failed to avail him-or herself of a proper complaint procedure
‘will normally suffice to satisfy the employer’s burden under the second element of the
defense.’” Adams v. O’Reilly Automotive, Inc., 538 F.3d 926, 932 (8th Cir. 2008) (citing
to Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998)). In this case the employer
acted quickly. Medrano told plaintiff to come to her or Hoisington if any additional
issues came up during the investigation. Plaintiff reported nothing else to her or to
anyone else. Second, when plaintiff gave her resignation notice, Medrano asked her to
remain and they would seek to place her elsewhere. Further, an investigation was

8

conducted and Barrios was disciplined and retrained. The court finds the action was
prompt and remedial. See Brenneman v. Famous Dave’s of Am., Inc., 410 F. Supp. 2d
828, 842-3 (S.D. Iowa 2006) (holding, as a matter of law, employer’s actions were
sufficiently remedial where, on the basis of partially-admitted claims of supervisor
harassment, supervisor was given additional training and issued written warning).
Accordingly, the court finds the defendant has established that plaintiff failed to take
advantage of the opportunities offered to her by the defendant, and the motion for
summary judgment as to sexual harassment is granted.
B. Constructive Discharge
The Eighth Circuit holds that to constitute a constructive discharge, the
employer=s actions must be conducted with the intention of causing the employee to
resign. Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981). Further, it is
not sufficient that she simply shows a violation of Title VII. Hutchins v. International
Brotherhood of Teamsters, 177 F.3d 1076, 1082 (8th Cir. 1999); Phillips v. Taco Bell
Corp., 156 F.3d 884, 890 (8th Cir. 1998). AConstructive discharge occurs when an
employer deliberately renders the employee=s working conditions intolerable and thus
forces him to quit his job.@ Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999);
Kimzey v. Wal-mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997). AThe intent element
is satisfied by a demonstration that quitting was a >reasonably foreseeable consequence
of the employers discriminatory actions.=@ Breeding v. Arthur J. Gallagher & Co., 164
F.3d 1151, 1159 (8th Cir. 1999) (quoting Summit v. S-B Power Tool, 121 F.3d 416, 421
(8th Cir. 1997)). Further, an employee has an obligation to not assume the worst and
act too quickly for purposes of determining whether she has been constructively

9

discharged. Tork v. St. Luke’s Hospital, 181 F.3d 918, 920 (8th Cir. 1999). Minor
changes in duties or working conditions do not constitute grounds for a constructive
discharge claim. Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016-17 (8th Cir.
1999); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994).
However, actions amounting to a constructive discharge constitute adverse employment
actions for purposes of Title VII. Kerns, 178 F.3d at 1016 (citing Parrish v. Immanual
Med. Ctr., 92 F.3d 727, 732 (8th Cir. 1996)).
To the extent plaintiff argues that defendant constructively discharged her, the
court likewise finds that claim lacks merit. The defendant did not terminate or discharge
the plaintiff, nor did anyone discipline the plaintiff. Plaintiff submits no evidence that the
defendant “must have intended to force [the employee] to quit or at least have
reasonably foreseen [the employee’s] resignation as a consequence of the working
conditions.”

Duncan v. General Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002).

Further, “[a]n employee who quits without giving her employer a reasonable chance to
work out a problem has not been constructively discharged.” Duncan, 300 F.3d at 935.
Accordingly, the court finds there is no evidence to submit to the trier of fact on the
issue of constructive discharge.
C. Retaliation
Title VII provides that it shall be an unlawful employment practice for any
employer to retaliate against an employee or an applicant for employment Abecause he
has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an

10

investigation, proceeding, or hearing under this subchapter.@ 42 U.S.C. § 2000e-3(a)
(1994).
“To establish a prima facie case of retaliation, an employee must show that [s]he
engaged in protected activity; [s]he suffered a materially adverse action that would deter
a reasonable employee from making a charge of employment discrimination; and there
is a causal connection between the protected activity and the adverse action.” Gibson
v. American Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012). If the plaintiff makes
this showing, the employer must then rebut the presumption by articulating a legitimate,
nondiscriminatory reason for the adverse employment action.

Id. at 856-57. If the

employer does this, the burden of production shifts back to the plaintiff to demonstrate
that the employer=s nondiscriminatory reason is pretextual. Id. .
Plaintiff has submitted no evidence of an adverse action. On the contrary, the
evidence stated above shows the opposite. She did not receive disciplinary action, she
was not discharged, and the evidence shows that Barrios treated her the same as other
employees with regard to her proper rotation and cutting the meat pieces. Further,
defendant offered plaintiff a new job position away from her harasser. The court has
already determined that

defendant

did

not

constructively discharge

plaintiff.

Accordingly, the court finds there is no evidence of an adverse employment action or of
any retaliation that could be submitted to a jury, and thus this claim fails. See, e.g.,
Jackman v. Fifth Judicial Dist. Dep’t of Correctional Servs., 728 F.3d 800, 805 (8th Cir.
2013) (holding plaintiff “did not establish a prima facie case of sex and race
discrimination or retaliation because she cannot show, as a matter of law, that she
suffered an adverse employment action.”).

11

Defendant filed a motion to strike, Filing No. 192, plaintiff’s response, Filing No.
189, to defendant’s reply brief. The court has reviewed the motion, brief and plaintiff’s
response. The court agrees in part that plaintiff failed to follow the local rules in terms of
requesting permission to file additional evidence and that the arguments are not
responsive. Further, the court has reviewed the proposed evidence and determines it is
in many cases duplicative of previous evidence, is not responsive to the issues in the
case, and is not relevant in many instances. More importantly, even if the court admits
the evidence, it will not change the outcome of the decision in this case.
THEREFORE, IT IS ORDERED:
1. Defendant’s motion for summary judgment, Filing No. 176, is granted, and this
case is dismissed.
2.

Plaintiff’s opposition to the summary judgment motion, Filing No. 180, is

overruled.
3. Defendant’s motion to strike, Filing No. 192, is granted in part and denied in
part as set forth herein.
4. A separate judgment will be entered in accordance with this Memorandum
and Order.
Dated this 25th day of March, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the
District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the
services or products they provide on their Web sites. Likewise, the court has no agreements with any of
these third parties or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.
12