Cortez et al v. Pharma Chemie, Inc.

Filing 63

MEMORANDUM AND ORDER- Defendant PCI's motion for summary judgment (filing 24 ) is granted; PCI's motion to strike (filing 51 ) is denied as moot; and A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROCIO REYES,
Plaintiff,

8:11CV228

vs.
MEMORANDUM AND ORDER
PHARMA CHEMIE, INC., a
Nebraska Corporation,
Defendant.
This matter is before the Court on the motion for summary judgment
(filing 24) filed by defendant Pharma Chemie, Inc. (PCI). The Court has
considered the parties' briefs (26, 47, and 53) and indexes of evidence (25 and
48). For the reasons discussed below, the Court finds that PCI's motion
should be granted and judgment entered accordingly.
I. FACTUAL BACKGROUND
The following facts are those stated in the parties' briefs that are
supported by the record, that the parties have admitted, or that the parties
have not properly resisted. See, NECivR 56.1(b)(1); Fed. R. Civ. P. 56(c)(1)(A)
and (e)(2). Unless otherwise noted, the following facts are undisputed for
purposes of the pending motion for summary judgment.1
In response to PCI's motion for summary judgment, Reyes introduced several
exhibits already found in PCI's index of evidence (see filings 48-1, 48-2, and 48-3).
The only additional evidence Reyes has provided is a copy of the Nebraska Equal
Opportunity Commission (NEOC) file relating to her charge of discrimination.
Filing 48-4. PCI has moved to strike this exhibit on the grounds that it is
unauthenticated and that much of it constitutes inadmissible hearsay. Filings 51
and 52. The Court will construe PCI's motion to strike as an objection under Fed. R.
Civ. P. 56(c), which provides that a party may object that materials cited to support
or dispute a fact cannot be presented in a form that would be admissible in evidence
at trial. See also Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384
(W.D. Mich. 2011) (discussing 2010 amendments to Rule 56). In any event, the
Court will deny PCI's motion as moot, because even after considering the facts
available in Reyes' NEOC file, the Court finds that Reyes has failed to set forth a
genuine issue of material fact on any of her claims.
1

PCI produced nutritional supplements, animal health products, and
"flavor base systems" that other companies use to make their products more
palatable. Filing 25-1 at ¶ 1. PCI's owner and president was Mark Pieloch.
Filing 25-1 at ¶ 2. The company was small: as of January 2010, it had 40
employees, including Pieloch. Filing 48-4 at 40. By April 30, 2010, that
number had dropped to 29. Filing 48-4 at 45.
Plaintiff Rocio Reyes began working for PCI as a temporary contract
employee in March 2008. Filing 25-1 at ¶ 3. In July 2008, she was hired
directly by PCI to a permanent part-time position as a product packaging
technician. Filing 25-1 at ¶ 3. Reyes' immediate supervisor was Jeanette
Rivera, who was supervised in turn by Brad Sears. Filing 25-2 at ¶ 1. Rivera
and Reyes were friends before Reyes began working at PCI, and Rivera
recommended that PCI hire Reyes. Filing 25-2 at ¶ 10.
Reyes often worked together with Monica Cortez. Filing 25-1 at ¶ 5.
Both women were fluent in Spanish and would talk with one another in
Spanish while working. Filing 25-1 at ¶ 5. Cortez and Reyes were also the
only Hispanic employees of PCI. Filing 48-4 at 44–45. While Reyes' first
language was Spanish, she spoke some English. Filing 25-1 at ¶ 4. Her level
of fluency is disputed. PCI asserts that Reyes is "bilingual." Filing 25-1 at ¶ 4.
Reyes stated she did not speak much English, and that is why she and Cortez
almost always conversed in Spanish. Filing 48-4 at 19. When she was being
interviewed for the position, Reyes was given a paper to read that was
written in English, and had trouble reading it. Filing 48-4 at 19. However,
Reyes also stated that she enjoyed talking to Rivera, who did not speak
Spanish, and that she did so often. Filing 48-4 at 19; filing 25-2 at ¶ 4. Reyes'
coworkers in the packaging department did not speak Spanish, nor did any of
the packaging supervisors. Filing 25-2 at ¶ 4; filing 25-1 at ¶ 10.
According to Pieloch and Rivera, Reyes and Cortez's use of Spanish was
problematic, because PCI's packaging operations required clear
communication among employees and supervisors. Filing 25-1 at ¶ 10; filing
25-2 at ¶ 4. Reyes' job description stated that she was responsible for reading
batch records and performing work as assigned by her supervisor, attaching
appropriate labels to products and packing them into the correct cases,
tracking production schedules, notifying her supervisor of mechanical or
material issues, placing the finished goods on the designated pallet, attaching
appropriate shipping documentation to the pallet, signing batch records, and
calculating yield figures. Filing 25-1 at 11–12. The position also required the
ability to read, write, and communicate in English, and to read and
understand batch records and written instructions. Filing 25-1 at 13.
Accuracy was important, because PCI shipped its customers fully-finished

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products that had to be correctly bottled and labeled for use or resale. Filing
25-1 at ¶ 1.
A.
The February 2010 Meeting
In early 2010, Rivera expressed concerns to Pieloch and Sears about
Reyes and Cortez "constantly speaking Spanish during work activities."
Filing 25-2 at ¶ 2; filing 25-1 at 5. Rivera averred that when a supervisor
would give Reyes and Cortez directions in English, they would not respond to
the supervisor, but would commence speaking to one another in Spanish.
Filing 25-2 at ¶ 2; filing 25-1 at ¶ 5. This left the supervisors uncertain if
their directions had been understood. Filing 25-2 at ¶ 2; filing 25-1 at ¶ 5.
On February 11, 2010, Pieloch met with Reyes and Cortez to discuss
their use of Spanish in the workplace. Filing 25-1 at ¶ 11. Precisely what
Pieloch said at this meeting is disputed. Pieloch averred that he told Reyes
and Cortez that they needed to speak English while working, in order to
prevent packaging mistakes and facilitate relations with coworkers and
supervisors. Filing 25-1 at ¶ 11. According to Pieloch, Reyes and Cortez said
they could speak Spanish whenever they wanted, and if he did not like it, he
could fire them, but they would not quit their jobs and they would continue to
speak Spanish while working. Filing 25-1 at ¶ 11. Pieloch stated that he told
them he would not fire them, but that he would seek the assistance of an
attorney. Filing 25-1 at ¶ 12. According to Reyes, Pieloch told her and Cortez
that he could fire them for speaking Spanish. Filing 48-4 at 3. Reyes also
stated that Pieloch said the reason they could not speak Spanish was because
their conversations bothered the other workers, who thought Reyes and
Cortez were talking about them. Filing 48-4 at 3, 19.
B.
Reyes' Performance Evaluation
On February 17, 2010, Rivera completed a performance evaluation of
Reyes, as part of a broader review of PCI's packaging technicians. Filing 25-1
at ¶ 17, pp. 134–35; filing 25-2 at ¶ 7. Reyes had been on a leave of absence
from May to December 2009. Filing 25-2 at ¶ 7. Work operations had changed
during that time, and Reyes had some difficulty adapting. Filing 25-2 at ¶ 7.
In the evaluation, Rivera noted under "Interpersonal Relationships" that
Reyes "had a rough start with some of the people and it has led her to become
quiet and that is leading to her productivity being low." Filing 25-1 at 135.
Reyes, along with two other non-Hispanic employees received "below
average" performance evaluations. Filing 25-2 at ¶ 7; filing 25-1 at 134–35.
On a scale of 1 to 5, this was a 2, with 1 being "unsatisfactory" and 5 being
"excellent." Filing 25-1 at 134–35. Following the evaluations, Rivera spent
extra time with all three employees, observing them and trying to help them
improve their performance. Filing 25-1 at ¶ 17; filing 25-2 at ¶ 7. Rivera also
made herself available to help Reyes. Filing 25-2 at ¶¶ 8–9.
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C.

The Language Policy
On March 4, 2010, PCI adopted a policy entitled "Language While
Performing Work". Filing 25-1 at ¶ 6, p. 14. The policy provided, in full:
Pharma Chemie requires all employees to speak English
while performing work to promote efficiency, safety, and
monitoring of the workplace by supervisors and others who speak
English.
Employees are required to speak English while performing
work when other employees are present. Exceptions are made for
situations where speaking a language other than English does
not affect efficiency, safety, or the monitoring of work by
supervisors:
If two or more employees are working in an area and all
of the employees have a good ability to communicate in a
language other than English, and no other employees
are in the area, the employees may communicate in the
non-English language that they all understand.
If a customer, vendor, or other person not employed by
Pharma Chemie addresses an employee using a
language other than English or otherwise indicates a
preference for communicating in that language, the
employee can respond in that language, if capable of
doing so, provided such does not affect efficiency, safety,
or the monitoring of work by supervisors.
The use of words or phrases from languages other than
English that are commonly known to English speakers
(!Hola!, Salut, Guten Tag) or other uses of words from
languages other than English that do not interfere with
work communications is not prohibited.
Employees are not required to speak English when not
performing work. For instance, the requirement does not apply
during work breaks, lunch breaks, personal calls, or any other
personal time or activity.
Violations of the language policy may result in disciplinary
action, up to and including termination. Inadvertent or isolated
violations of the language policy may be addressed by a reminder.
Intentional and repeated violations will be considered
insubordination.

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Filing 25-1 at ¶ 8, p. 41. The policy applied to all PCI employees. Filing 25-1
at ¶ 8. Reyes signed a form acknowledging she had received notice of the new
policy on March 25, 2010. Filing 25-1 at ¶ 6, p. 14. She also wrote on the
signature page that she did not agree with the new policy. Filing 25-1 at 14.
Pieloch averred that the language policy was "justified by business
necessity." Filing 25-1 at ¶ 9. Pieloch and Rivera explained that in early
2010, employees in the packaging line were making too many mistakes.
Filing 25-1 at ¶ 9; filing 25-2 at ¶ 3. For example, products were being
shipped without caps and employees were retrieving the wrong lids and
labels for products. Filing 25-1 at ¶ 9; filing 25-2 at ¶ 3. According to Pieloch,
the policy was principally adopted in response to these mistakes, but also in
order to improve efficiency, quality, safety,2 and the ability of supervisors to
monitor employees. Filing 25-1 at ¶ 9. PCI management determined that
"communications on the packaging line needed to be in a language all
employees and their supervisors understood in order to eliminate the
packaging errors that had been occurring." Filing 25-1 at ¶ 10; filing 25-2 at ¶
4.3
After the policy was adopted, Reyes and Cortez continued to speak
Spanish during work. Filing 25-1 at ¶ 12. PCI did not discipline them, and
Reyes made no further complaints to PCI about the language policy. Filing
25-1 at ¶ 12.
D.
Reyes and Cortez's Charges of Discrimination
On April 6, 2010, Cortez filed a charge of discrimination with the
NEOC and Equal Employment Opportunity Commission (EEOC). See filing 1
at ¶ 21; filing 11 at ¶ 16; filing 28-1 at 86. Reyes filed a similar charge on
April 16, 2010. Filing 25-1 at 88. PCI received notice of Cortez's charge some
time on or shortly after April 16.4 In her NEOC charge, Reyes alleged that
In its response to Reyes' NEOC charge, however, PCI admitted that safety was
"not the primary motivation" for the policy, but noted that safety issues could arise
if employees were "especially confused." Filing 48-4 at 8 n.2.
2

Reyes alleges that packaging technicians were "not required to communicate with
each other in any way to perform their essential job functions," but cites no evidence
in support of this claim. Filing 47 at ¶ 7.
3

Upon receiving a formal charge of discrimination, Nebraska law requires the
NEOC to furnish the employer with a copy within 10 days. Neb. Rev. Stat. § 481118(1). When PCI actually received notice of Cortez's charge is not clear, but the
timing is relevant to Reyes' retaliation claim. The Court will assume, for purposes of
the pending motion, that PCI received notice of Cortez's charge some time before
April 22, 2010. This inference is supported by the fact that the 10-day statutory
4

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after the February meeting Rivera treated her differently by watching her,
not helping her, and accusing her of not listening. Filing 25-1 at 88. Cortez
made similar complaints in her NEOC charge. Filing 28-1 at 86.
Reyes also alleged that after the policy was adopted, she was scheduled
to work apart from Cortez to prevent them from speaking Spanish. Filing 251 at 88. However, Reyes has retracted this allegation in her brief opposing
PCI's motion for summary judgment. See filing 26 at 12–15; filing 47 at 12–
15. PCI conducted a review of its work schedules and security videos, and
determined that Reyes and Cortez worked in the same area essentially the
same number of days before and after the February 11, 2010 meeting.5 Filing
25-1 at ¶¶ 14–15, pp. 89–133; filing 25-3 at ¶¶ 1–3.
E.
Reyes' Termination
On April 22, 2010, Reyes was terminated as part of a reduction in force,
along with two other non-Hispanic employees. Filing 25-1 at ¶¶ 21–22. On
April 20, PCI had adopted guidelines to govern the reduction in force. Filing
25-1 at ¶ 21, p. 136. Under the guidelines, full-time employees were to be
retained over part-time employees. Filing 25-1 at ¶ 21, p. 136. The only other
factor to be considered was "efficiency," measured by employees' most recent
performance evaluations. Filing 25-1 at ¶ 21, p. 136. In the separation notice
given to Reyes, PCI stated that it would be willing to rehire her in the future.
Filing 25-1 at 137.
On April 22, 2010, Cortez put in her notice of intent to resign. Filing
28-1 at ¶¶ 18–19, p. 138. Her employment ended on April 29. Filing 28-1 at ¶
18. Her separation notice stated that her performance was satisfactory, and
she was eligible for rehire. Filing 28-1 at 139. PCI maintains that Cortez's
decision to resign was entirely voluntary and that she would otherwise have
remained an employee. Filing 28-1 at ¶ 19.
II. STANDARD OF REVIEW
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. See Fed. R. Civ. P. 56(c)(2). The movant bears the initial
notice requirement was observed in Reyes' case. See filing 48-4 at 3, 35 (Reyes'
NEOC charge filed April 16, notice sent to PCI on April 26). Also, Cortez's charge is
what prompted PCI to conduct its investigation into Cortez and Reyes' work
assignments, which was completed by April 23. See filing 25-3 at 1–3; 28-3 at 1–3.
Reyes argued that her purported separation from Cortez was unlawful
discrimination. Because Reyes has agreed there is no factual support for this claim,
the Court considers it waived.
5

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responsibility of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant 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). 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.
On a motion for summary judgment, 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. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant’s position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). 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. Torgerson, 643 F.3d at 1042.
An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the
matters stated. Fed. R. Civ. P. 56(c)(4). The Court must rely upon evidence
that will be admissible at trial to determine the presence or absence of a
material issue of fact. Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307 (8th Cir.
1993).
III. ANALYSIS
Reyes brings claims for discrimination on the basis of race and national
origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981; and the
Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. § 48–
1101 et seq. Reyes first argues that PCI's language policy violated each of the
above statutes. Reyes also claims that PCI retaliated against her for filing a
charge with the EEOC and opposing PCI's language policy. The Court will
consider each claim in turn.
A.
The Language Policy
Reyes argues broadly that PCI's language policy violated Title VII, §
1981, and NFEPA. At various points in these proceedings, Reyes has
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advanced theories of disparate treatment, disparate impact, and hostile work
environment. See, filing 1 at ¶ 27; filing 12 at 2; filing 47 at 6–8. For the sake
of completeness, the Court addresses each theory.
The Court begins with the framework governing Reyes' Title VII
claims, because nearly identical standards apply to her claims under § 1981
and NFEPA.
Sections 703(a)(1) and (2) of Title VII provide:
(a) It shall be an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive
or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion,
sex, or national origin.
42 U.S.C. § 2000e-2(a).
PCI has noted one important difference between Title VII and § 1981.
Whereas Title VII prohibits discrimination on the basis of race and national
origin, § 1981 only applies to cases of intentional racial discrimination, and
does not support claims based solely on the plaintiff's national origin.
Torgerson, 643 F.3d at 1052–53. PCI argues Reyes' claims "focus on her
Hispanic descent and the language those of her national origin routinely
speak," and so are based solely on her national origin. Filing 26 at 10.
The Court need not decide whether Reyes' claims are based "solely" on
national origin. The line dividing the concepts of "race" and "national origin"
is fuzzy at best, and in some contexts, national origin discrimination is so
closely related to racial discrimination as to be indistinguishable. Short v.
Mando American Corp., 805 F. Supp. 2d 1246, 1267 (M.D. Ala. 2011). But
Reyes fails to set forth an issue of fact on her Title VII claims, whether
premised on her race or national origin. Her § 1981 claims, which are
governed by identical standards, must also fall.
Even under Title VII, language itself is not a protected class. Nor are
language and national origin interchangeable. See, Mumid v. Abraham
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Lincoln High School, 618 F.3d 789, 795 (8th Cir. 2010); Garcia v. Gloor, 618
F.2d 264, 268 (5th Cir. 1980); Pacheco v. New York Presbyterian Hosp., 593 F.
Supp. 2d 599, 612 (S.D.N.Y. 2009). Title VII does, however, prohibit the use
of language as a covert basis for national origin discrimination, and
"[d]ifferences in language and other cultural attributes may not be used as a
fulcrum for discrimination." Gloor, 618 F.2d at 270.
The Court recognizes that language is closely tied to national origin
and that English-only policies may cause employees to feel devalued,
humiliated, and may even, in some cases, give rise to a hostile work
environment. See, e.g., EEOC v. Premier Operator Servs., 113 F. Supp. 2d
1066 (N.D. Tex. 2000). The Supreme Court has observed:
Just as shared language can serve to foster community,
language differences can be a source of division. Language elicits
a response from others, ranging from admiration and respect, to
distance and alienation, to ridicule and scorn. Reactions of the
latter type all too often result from or initiate racial hostility.
Hernandez v. New York, 500 U.S. 352, 371 (1991).
But in the present case, Reyes has failed to present evidence that PCI's
policy was motivated by or resulted in race or national origin discrimination.
In fact, the record before the Court is nearly silent when it comes to what, if
any, effect the policy had on Reyes. Whether Reyes brings her claim under
the theory of disparate treatment, disparate impact, or hostile work
environment, the result is the same. Reyes has not presented sufficient
evidence for a reasonable jury to find that PCI's policy violated Title VII, §
1981, or NFEPA.
1.
Disparate Treatment
A claim of disparate treatment targets the most easily understood type
of discrimination: an employer treats some workers less favorably than
others because of their membership in a protected class. Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335–36 n.15 (1977). The Court
begins with the elements of Reyes' claim under Title VII, because the same
framework applies to her claims under § 1981 and NFEPA.
Absent direct evidence of discriminatory intent, disparate treatment
claims are governed by the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Onyiah v. St. Cloud State Univ., 684 F.3d
711, 716 (8th Cir. 2012); see also Torgerson, 643 F.3d at 1043–46. Under this
framework, Reyes must first establish a prima facie case of discrimination.
Oniyah, 684 F.3d at 716. To do so, she must show: (1) that she is a member of
a protected class; (2) that she was qualified for her position and performed
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her duties adequately; and (3) that she suffered an adverse employment
action, (4) under circumstances that would permit the court to infer that
unlawful discrimination was involved. Sallis v. Univ. of Minn., 408 F.3d 470,
476 (8th Cir. 2005). Reyes may establish an inference of discriminatory intent
by showing that she was treated differently than similarly situated persons
who are not members of her protected class. Bennett v. Nucor Corp., 656 F.3d
802, 819 (8th Cir. 2011).
If an employee establishes a prima facie case, the burden (of
production) shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the challenged actions. Barber, 656 F.3d at 792.
If the employer does so, the burden shifts back to the employee to produce
evidence sufficient to create a genuine issue of fact that the employer's
explanation is merely a pretext for unlawful discrimination. Id. The burdenshifting analysis is only a framework for deciding summary judgment
motions: at all times Reyes retains the burden of proving that a prohibited
reason, rather than the proffered reason, actually motivated PCI's actions.
Id.; Oniyah, 684 F.3d at 716.
The elements of Reyes' § 1981 claim are identical. Bennett, 656 F.3d at
818. And NFEPA is patterned, in part, after Title VII, Father Flanagan's
Boys' Home v. Agnew, 590 N.W.2d 688, 691 (Neb. 1999), so the Court will
apply the same standards to Reyes' NFEPA claim. Al-Zubaidy v. TEK
Industries, Inc., 406 F.3d 1030, 1039–40 (8th Cir. 2005) (failure of claims
under Title VII dooms similar claims under NFEPA).
Reyes' disparate treatment claim fails for the simple reason that Reyes
(and Cortez) were treated the same as everyone else at PCI. The language
policy applied to all employees. Filing 25-1 at ¶ 8. Nor has Reyes alleged that
the policy was selectively enforced—in fact, the policy was not enforced at all.
Reyes and Cortez continued to speak Spanish, in violation of the policy, but
PCI did not discipline them or take any action in response. Filing 25-1 at ¶
12. It is true that "similarly situated persons" are not present in every case of
discrimination. Tran v. Standard Motor Products, Inc., 10 F. Supp. 2d 1199,
1206 & n.11 (D. Kan. 1998). Reyes could still establish a prima facie case of
discrimination by showing, in any manner, that she suffered an adverse
employment action under circumstances permitting an inference of
discriminatory motivation. Sallis, 408 F.3d at 476.
But because the policy was never enforced, there was no associated
adverse employment action. An adverse employment action means a material
employment disadvantage, such as a change in salary, benefits, or
responsibilities. Id. Mere inconvenience, without an accompanying decrease
in title, salary, or benefits is insufficient to show an adverse employment
action, id.; and "not everything that makes an employee unhappy is an
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actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th
Cir. 1996). The only adverse employment action Reyes has alleged is her
termination.6 Filing 47 at 9. But Reyes was not fired for violating the
language policy. Reyes was fired as part of the reduction in force, due to her
performance evaluations and part-time status. Filing 25-1 at ¶¶ 21–22, p.
136. Reyes has produced no evidence tying her termination to the policy.
Even if Reyes had made a prima facie case, PCI has offered a
legitimate, nondiscriminatory reason for her termination. Reyes was
terminated, along with two other non-Hispanic employees, as part of a
reduction in force, due to her part-time status and performance deficiencies.
Filing 25-1 at ¶¶ 21–22. Nor has Reyes shown that PCI's reduction in force
was a pretext, and that PCI actually fired her for violating the policy, or on
account of her race or national origin, or in retaliation for opposing the policy
or filing her NEOC charge. See part IV.B, infra.
Reyes argues that the reduction in force was a pretext, because she
"never received an unsatisfactory mark" in her performance evaluation.
Filing 47 at 9. But "unsatisfactory" was the lowest possible score on PCI's
rating scale, which went: excellent, above average, satisfactory, decreased
performance, and unsatisfactory. Filing 25-1 at 134. Reyes did receive several
marks for "decreased performance," and nothing above "satisfactory" in any
field. Filing 25-1 at 134–35. Her overall performance was "below average,"
and Rivera noted that Reyes needed to "only worry about herself" and needed
to try harder. Filing 25-1 at 135. Reyes has failed to put forth a prima facie
case of disparate treatment, and even if she had, she has not shown that
PCI's reduction in force was a pretext for discrimination.
2.
Disparate Impact
Title VII also prohibits employment practices or policies that, while
facially neutral and nondiscriminatory in their treatment of protected groups,
in operation fall more harshly on one group than another and cannot be
justified by business necessity. Int'l Bhd. of Teamsters, 431 U.S. at 335–36
In her charge to the NEOC, Reyes claimed that following the February 2010
meeting, Rivera subjected her to extra supervision, refused to help her, and accused
her of not listening. Filing 25-1 at 88. Reyes appears to have abandoned this claim
in her complaint and brief opposing summary judgment. Filing 1; filing 47. To the
extent she would claim Rivera's alleged mistreatment was discriminatory, the claim
would fall flat. Weeks v. New York State (Div. of Parole), 273 F.3d 76, 86 (2d Cir.
2001) abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 108–14 (2002) (criticism of an employee is not an adverse employment action.)
Nor would such conduct create a hostile work environment. See, e.g., O'Brien v.
Dep't of Ag., 532 F.3d 805, 810 (8th Cir. 2008) (manager's increased scrutiny
insufficient).
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n.15. When proceeding under a disparate impact theory, proof of
discriminatory motive or intent is not required. Id.
Title VII sets forth a burden-shifting framework for disparate impact
claims that differs from that of McDonnell Douglas. First, the plaintiff must
demonstrate that the employer used a particular employment practice that
caused a disparate impact on the basis of race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(k)(1)(A)(i). Stated another way, to establish a
prima facie case, the plaintiff must show: (1) an identifiable, facially neutral
personnel policy or practice; (2) a disparate effect on members of a protected
class; and (3) a causal connection between the two. Bennett, 656 F.3d at 817.
If the plaintiff sets forth this prima facie case, the burden (not only of
production, but of persuasion as well) shifts to the employer to demonstrate
that the challenged practice was "job related for the position in question and
consistent with business necessity." § 2000e-2(k)(1)(A)(i); see also Phillips v.
Cohen, 400 F.3d 388, 398 (6th Cir. 2005). If the employer meets this burden,
the plaintiff can still prevail by showing that there was a less discriminatory
alternative. § 2000e-2(k)(1)(A)(ii) and (C); E.E.O.C. v. Dial Corp., 469 F.3d
735, 742 (8th Cir. 2006).
The Court will apply the same analysis to Reyes' claim under NFEPA,
because neither party has suggested a different analysis is warranted. See,
Father Flanagan's Boys' Home, 590 N.W.2d at 691; Al-Zubaidy, 406 F.3d at
1039–40. Reyes cannot, however, bring a disparate impact claim under §
1981, as it only prohibits intentional discrimination. Bennett, 656 F.3d at 817.
Reyes' disparate impact claim fails because she has not shown what, if
any, impact the language policy actually had on her and Cortez. She and
Cortez, the only Hispanic employees of PCI, were also the only employees
that the policy could have impacted in any significant manner. No other PCI
employees spoke Spanish. Filing 25-2 at ¶ 4; filing 25-1 at ¶ 10. But potential
impact is not enough. "In disparate-impact litigation the question is not
whether a given test or standard is lawful standing alone, but whether its
application has been adequately justified." Lewis v. City of Chicago, Ill., 643
F.3d 201, 205 (7th Cir. 2011). Because PCI's language policy was not
enforced, Reyes has failed to identify any "impact" at all.
And, as with her disparate treatment claim, Reyes has failed to identify
any adverse employment action connected to the policy. Aliotta v. Bair, 614
F.3d 556, 566 (D.C. Cir. 2010) (plaintiff must show adverse employment
action under both disparate treatment and disparate impact theories); West
v. Norton, 376 F. Supp. 2d 1105, 1121 (D.N.M. 2004) (same); cf. New York
City Transit Authority v. Beazer, 440 U.S. 568, 584 (1979) (plaintiff must
show that the employment practice at issue had "the effect of denying the
members of one race equal access to employment opportunities"); Evers v.
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Alliant Techsystems, Inc., 241 F.3d 948, 953 (8th Cir. 2001) (same required
for disparate impact claims under ADEA). Reyes has failed to make out a
prima facie case, so the Court need not determine whether PCI's language
policy was consistent with business necessity. See § 2000e-2(k)(1)(B)(ii).
3.
Hostile Work Environment
Title VII is not limited to addressing tangible or economic
discrimination. EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th
Cir. 2012). The statute also applies to the "'terms, conditions, or privileges of
employment,'" and prohibits discriminatorily hostile or abusive work
environments. Id. To state a claim, the workplace must be "'permeated with
discriminatory intimidation'" that is so severe or pervasive as to alter the
conditions of the victim's employment and create an abusive working
environment. Id.
The environment must be both objectively hostile, as perceived by a
reasonable person, and subjectively abusive as actually viewed by the
plaintiff. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.
2010). To assess the objective component, the Court looks to the totality of
the circumstances, including the frequency of the discriminatory conduct, its
severity, whether it was physically threatening or humiliating or a mere
offensive utterance, and whether the conduct unreasonably interfered with
the employee's work performance. Id. at 518–19. The standard is a
demanding one, designed to filter out complaints concerning the ordinary
tribulations of the workplace. Id. at 519. The same standard governs Reyes'
claims under § 1981 and NFEPA. Anderson, 606 F.3d at 518 (§ 1981); AlZubaidy, 406 F.3d at 1039–40 (NFEPA).
Again, Reyes' claim fails because she has not identified how the policy
affected her at all, let alone shown that it contributed to a hostile
environment. She has not offered an affidavit or evidence detailing how the
policy made her feel. Reyes may have found the policy upsetting. But the
Court cannot simply assume that the PCI workplace was "'permeated with
discriminatory intimidation.'" CRST Van Expedited, Inc., 679 F.3d at 683. In
her rebuttal interview with the NEOC, Reyes stated that she was treated
poorly by PCI and that she "became ill because of the treatment." But these
statements lack the specificity needed to create an issue of fact. The
interview occurred on February 7, 2011, nearly a year after Reyes was
terminated. Filing 48-4 at 19. Reyes does not indicate the extent of her
illness, when she became sick, or whether the illness was prompted by the
policy itself, or by the loss of her job. Even construing the record in the light
most favorable to Reyes, and drawing all inferences in her favor, these
statements are too lacking in factual content to create an issue of fact on the
existence of a hostile work environment.
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4.

The EEOC Guidelines
In addition to the statutory and common-law frameworks governing
Reyes' claims, the EEOC has set forth guidelines governing "speak-Englishonly" rules. See 29 C.F.R. § 1606.7. The Court has postponed consideration of
the guidelines because it is not clear what, if any, effect they should have in
this case. The guidelines distinguish between policies requiring employees to
speak English at all times or "only at certain times." § 1606.7. The EEOC
considers the former to be a "burdensome term and condition of employment"
because a person's primary language "is often an essential national origin
characteristic." § 1606.7(a). The guidelines continue:
Prohibiting employees at all times, in the workplace, from
speaking their primary language or the language they speak
most comfortably, disadvantages an individual's employment
opportunities on the basis of national origin. It may also create
an atmosphere of inferiority, isolation and intimidation based on
national origin which could result in a discriminatory working
environment. Therefore, the Commission will presume that such
a rule violates [T]itle VII and will closely scrutinize it.
Id.
Policies applied only at certain times are permitted, but only where the
employer can show the rule is "justified by business necessity." § 1606.7(b).
Thus, under the guidelines, "an employee meets the prima facie case in a
disparate impact cause of action merely by proving the existence of the
English-only policy." Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir.
1993); see also Pacheco, 593 F. Supp. 2d at 621. This advances the inquiry to
the next stage of the burden-shifting framework, so that the employer must
come forward with evidence of business necessity. Taken at face value, then,
the guidelines could have a significant effect on this case, especially given
Reyes' failure to otherwise make a prima facie case.
But courts are split on how to treat these guidelines. The Ninth Circuit
has rejected these guidelines as contrary to the text of Title VII. Spun Steak,
998 F.2d at 1489–90. A few district courts have accepted and applied the
guidelines. See, e.g., Premier Operator Servs., 113 F. Supp. 2d at 1073; EEOC
v. Synchro-Start Prods., Inc., 29 F. Supp. 2d 911 (N.D. Ill. 1999). The Tenth
Circuit has taken a nuanced middle approach. Maldonado v. City of Altus,
433 F.3d 1294, 1305 (10th Cir. 2006), overruled on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The Eighth
Circuit has yet to speak on the subject. This Court sees merit in the holdings
of both Spun Steak Co. and Maldonado.
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As a general matter, EEOC guidelines do not have the force of law, but
are entitled to great deference. Albemarle Paper Co. v. Moody, 422 U.S. 405,
431 (1975). The guidelines constitute "'a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.'"
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). Courts should
defer to an EEOC guideline unless there are "compelling indications that it is
wrong." Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94 (1973).
The Spun Steak court refused to defer to these guidelines, finding that
they contradict the text of Title VII. Title VII explicitly sets forth the burdenshifting framework for disparate impact cases. 42 U.S.C. § 2000e-2(k)(1)(A)(i).
The guidelines contradict the text of the statute by shifting the burden of
showing business necessity to the employer before the plaintiff has actually
come forward with evidence of disparate impact. Spun Steak, 998 F.2d at
1489–90. In creating Title VII, Congress intended to strike a balance between
preventing discrimination and preserving the independence of employers,
and these guidelines upset that balance. Id. at 1490.
By contrast, in Maldonado, the Tenth Circuit avoided deciding what
"legal" effect to give the guidelines. Instead, the court held that the guidelines
may function, at the summary judgment stage, "not as interpretations of the
governing law, but as an indication of what a reasonable, informed person
may think about the impact of an English-only work rule on minority
employees, even if [the Court] might not draw the same inference."
Maldonado, 433 F.3d at 1306. Maldonado addressed the impact of an
English-only policy in the context of a hostile work environment claim. The
policy itself, and not just its effects, may create or contribute to a hostile work
environment:
Here, the very fact that the [defendant] would forbid Hispanics
from using their preferred language could reasonably be
construed as an expression of hostility to Hispanics. At least that
could be a reasonable inference if there was no apparent
legitimate purpose for the restrictions. It would be unreasonable
to take offense at a requirement that all pilots flying into an
airport speak English in communications with the tower or
between planes; but hostility would be a reasonable inference to
draw from a requirement that an employee calling home during a
work break speak only in English. The less the apparent
justification for mandating English, the more reasonable it is to
infer hostility toward employees whose ethnic group or
nationality favors another language.

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Id. at 1305 (emphasis supplied).
This approach does not shift the burden to the employer to show that
the policy is actually consistent with business necessity. Instead, it examines
the apparent purpose for the policy. In other words, the court looks to the
context in which the policy was enacted. There is nothing revolutionary about
this: in a hostile work environment claim, context is key. Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81–82 (1998).
Maldonado does not stand for the proposition, however, that an
English-only policy alone will necessarily create an issue of fact on a hostile
work environment claim. In Maldonado, there was other evidence of hostility,
including ethnic taunting caused by the policy and a statement by the
defendant city's mayor referring to the Spanish language as "garbage."
Maldonado, 433 F.3d at 1301, 1304. And the employees stated that the policy
made them feel like second-class citizens. Id. at 1304.
This Court agrees with the Ninth Circuit's conclusion that the
guidelines contravene the text of Title VII and are not owed deference as an
interpretation of the statute. But the Court also agrees with the position of
the Tenth Circuit, and finds that the language policy itself, and the
circumstances of its adoption, are relevant in assessing whether Reyes has
created an issue of fact on her discrimination claim. To summarize: plaintiffs
challenging an English-only policy under Title VII will not necessarily be able
to make out a prima facie case (under any theory) based solely on the
presence of an English-only policy. But the policy itself, and the apparent
purposes behind its adoption, are factors that may be considered. There may
be cases where the policy at issue is so egregiously overbroad that nothing
more will be needed to defeat a motion for summary judgment.
But that is not the case here, and the above considerations do not
change the outcome under any of the theories advanced by Reyes. First, PCI's
policy was far narrower than that at issue in Maldonado. There, the plaintiffs
presented evidence that the policy applied even during breaks, lunch times,
and to private telephone conversations. Maldonado, 433 F.3d at 1300, 1305.
There was no apparent, legitimate reason for such a broad policy, so an
inference of hostility was reasonable. Id. at 1305. PCI's policy, by contrast,
did not apply during breaks, and did not apply if all employees present in the
area had "a good ability to communicate" in the other language. Filing 25-1 at
¶ 8, p. 41.
PCI has also offered several reasons for the policy: to decrease mistakes
being made on the packaging line and to allow supervisors to monitor
employees' performance. Filing 25-1 at ¶¶ 9–10; filing 25-2 at ¶¶ 3–4. Reyes
has offered no facts contradicting these apparent justifications. The Court
finds that these justifications are reasonable and legitimate. PCI has a
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legitimate business interest in increasing the accuracy and efficiency of its
packaging operations. And employers may require employees to speak
English in managers' presence so that managers can evaluate their job
performance. See, e.g., Pacheco, 593 F. Supp. 2d at 622; EEOC v. Sephora
USA, LLC, 419 F. Supp. 2d 408, 415, 417 (S.D.N.Y. 2005).
The proffered justifications are legitimate in and of themselves—but
PCI has been conspicuously silent on the specifics behind its policy. Pieloch
and Rivera simply averred that "it was determined" that packaging
operations needed to be in English to correct errors that had been occurring.
Filing 25-1 at ¶¶ 9–10; filing 25-2 at ¶¶ 3–4. They did not indicate that Reyes
and Cortez were ever the cause of any errors. Reyes' performance evaluation
did not mention anything of the sort. Filing 25-1 at 134–35. And it is
undisputed that Reyes and Cortez were able to speak some English, and
apparently enough to do their jobs.7 So, it is not clear how their casual
conversations had the ability to disrupt packaging operations. And since they
could speak some English, supervisors could have monitored their
performance simply by asking them to speak in English when they were
being supervised. PCI has not demonstrated that it needed such a broad
policy to achieve these goals.
Instead, the real reason for the policy may be the one proffered by
Reyes: her and Cortez's conversations bothered the other workers, who did
not speak Spanish and thought Reyes and Cortez were talking about them.
Filing 48-4 at 3, 19; see also filing 25-1 at ¶ 11. But even if this was the true
reason for the policy, and even if the other reasons were mere pretext, Reyes'
claim fares no better. Courts have upheld English-only policies enacted to
improve employee relations and protect workers from feeling they are being
talked about by others. See, e.g., Roman v. Cornell University, 53 F. Supp. 2d
223, 237 (N.D.N.Y. 1999); Tran, 10 F. Supp. 2d at 1210. PCI's policy was
reasonably tailored to achieve this goal.8 Nor is the connection between this
When Reyes was interviewed for the position, she was given a paper to read that
was written in English. Filing 48-4 at 19. Although she had trouble reading it, she
was still hired. Filing 48-4 at 19.
7

The Court expresses no opinion as to whether PCI's justifications or the proof in
support of them would meet the more demanding standard of business necessity in
a disparate impact case. See e.g., El v. Southeastern Pennsylvania Transp. Authority
(SEPTA), 479 F.3d 232, 242 (3d Cir. 2007) (noting that the test is "'business
necessity'" and not "'business convenience'") (emphasis supplied); Dial Corp., 469
F.3d at 742 (policy or requirement should be related to the safe and efficient
performance of the job at issue).
8

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goal and the policy so attenuated that an inference of hostility or
discriminatory intent is warranted.
While the policy may have demonstrated a lack of sensitivity on PCI's
part, this is not the same as prohibited discrimination. Reyes has not put
forward any evidence that the policy affected her in any manner actionable
under Title VII, § 1981, or NFEPA. Nor is there any evidence that Reyes'
coworkers were hostile or even rude to her. Reyes has failed to demonstrate
that the policy was the product of intentional discrimination, or caused an
atmosphere of hostility, or even that it caused an adverse employment action
or otherwise actionable disparate impact. Accordingly, the Court finds that
PCI is entitled to summary judgment on this claim.
B.
Reyes' Claim of Retaliation
Reyes claims that PCI terminated her in retaliation for opposing the
language policy and filing a charge of discrimination with the NEOC, in
violation of Title VII, § 1981, and NFEPA. As a preliminary matter, PCI
argues that Reyes has failed to exhaust her administrative remedies. The
Court agrees, but only as to Title VII.
Title VII requires that before a plaintiff file a lawsuit alleging
discrimination, she must file a timely charge with the EEOC or a state or
local agency with authority to seek relief. Richter v. Advance Auto Parts, Inc.,
686 F.3d 847, 850 (8th Cir. 2012); 42 U.S.C. § 2000e–5(e)(1). If the agency
dismisses the charge and notifies the complainant of her right to sue, then
she has 90 days to bring a civil action in federal court. Richter, 686 F.3d at
850–51; § 2000e–5(f)(1). Each incident of discriminatory treatment
constitutes a separate "unlawful employment practice" for which the
administrative remedies must be exhausted. Richter, 686 F.3d at 851. A
complainant need not file a new charge for claims that are "like or reasonably
related to" claims that she has properly exhausted. Id. But this exception is
narrowly construed. Id. at 852; Wedow v. City of Kansas City, Missouri, 442
F.3d 661, 672–73 (8th Cir. 2006).
In her April 16, 2010, charge to the NEOC, Reyes alleged
discrimination on the basis of national origin (but not race) and stated that
the discrimination took place on February 11, 2010, at the earliest, and on
March 17, 2010, at the latest. Filing 48-4 at 3. She left unchecked the box for
"retaliation." Filing 48-4 at 3. Her charge also makes no mention of her
termination, since she was not terminated until April 22. Filing 48-4 at 3;
filing 25-1 at ¶¶ 21–22. Reyes did not file a new charge of discrimination
based upon her termination.
Some courts hold that when an employee claims he or she was
retaliated against for filing a charge with the EEOC, the retaliation claim is
"reasonably related to" the underlying charge and is exempted from the
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exhaustion process. See, e.g., Franceschi v. U.S. Dept. of Veterans Affairs, 514
F.3d 81, 86–87 (1st Cir. 2008); Williams v. New York City Housing Authority,
458 F.3d 67, 70 n.1 (2d Cir. 2006). But in Richter, the Eighth Circuit rejected
this view. 686 F.3d at 851–54; but see id. at 859 (Bye, J., concurring in part
and dissenting in part) (arguing that requiring additional exhaustion of such
retaliation claims creates a "'needless procedural barrier'" that will
discourage plaintiffs from filing new retaliation charges for fear of additional
reprisal by employer) (quoting Gupta v. E. Tex. State Univ., 654 F.2d 411, 414
(5th Cir. 1981)). The Court finds that Reyes failed to properly exhaust her
claim of retaliation under Title VII.
Section 1981, on the other hand, does not require exhaustion. Surrell v.
California Water Service Co., 518 F.3d 1097, 1103–04 (9th Cir. 2008); Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007). NFEPA does require
plaintiffs to exhaust their claims with the NEOC, but plaintiffs may bring
suit under Neb. Rev. Stat. § 20-148, which provides an independent cause of
action for violations of NFEPA and does not require exhaustion. Goolsby v.
Anderson, 549 N.W.2d 153 (Neb. 1996). Although Reyes did not mention § 20148 in her complaint, that is no stumbling block: there is no need to
specifically plead § 20-148. See Trimble v. BNSF Ry. Co., 2008 WL 2795863
at *3 (D. Neb. 2008).
Nevertheless, Reyes' retaliation claims under § 1981 and NFEPA fail
on their merits. Both are governed by the same standard as a claim for
retaliation under Title VII. Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675, 684
(8th Cir. 2012) (§ 1981); Gacek v. Owens & Minor Distribution, Inc., 666 F.3d
1142, 1146 (8th Cir. 2012) (§ 1981); Al-Zubaidy, 406 F.3d at 1040 (NFEPA).
To establish a prima facie case of retaliation, Reyes must show that (1) she
engaged in a statutorily protected activity; (2) an adverse employment action
was taken against her; and (3) a causal connection exists between the two
events. Gacek, 666 F.3d at 1146. The same burden-shifting framework that
governed Reyes' disparate treatment claim applies here. Id.; Oniyah, 684
F.3d at 716. If Reyes makes a prima facie case, the burden will shift to PCI to
articulate a legitimate, nondiscriminatory reason for its actions. Gacek, 666
F.3d at 1146. If it does so, the burden shifts back to Reyes to show that the
proffered reason was merely a pretext for discrimination. Id.
Reyes has established the first two elements of her prima facie case.
Her termination qualifies as an adverse employment action. She opposed
PCI's language policy and filed an NEOC charge—both protected activities.
See 42 U.S.C. § 2000e-3(a). It does not matter that PCI's policy has not been
declared unlawful. The anti-retaliation provision of Title VII (and thus § 1981
and NFEPA) is interpreted broadly to cover opposition to employment actions
that are not unlawful, so long as the employee acted in a good faith,
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objectively reasonable belief that the practices were unlawful. Guimaraes v.
SuperValu, Inc., 674 F.3d 962, 977–78 (8th Cir. 2012). The Court has no
reason to doubt Reyes' good faith on this matter.9
But Reyes has not shown that there was any causal connection between
her opposition to the language policy or filing a NEOC charge and PCI's
decision to terminate her. The only evidence tending to support a causal
connection is the timing of events. Sometimes a plaintiff may establish the
required causal connection merely by showing temporal proximity between
engaging in a protected activity and the alleged retaliation. Eliserio v. United
Steelworkers of America Local 310, 398 F.3d 1071, 1079 (8th Cir. 2005). But
timing alone is usually not enough, id.; unless the timing between the
protected act and retaliation was "very close." Marez v. Saint-Gobain
Containers, Inc., --- F.3d ----, 2012 WL 3079223 at *3 (8th Cir. 2012).
Reyes noted her opposition to the new policy on March 25, 2010, when
she acknowledged receipt of the policy. Filing 48-4 at 22. Her refusal to
comply with the policy also indicated her opposition, and this apparently
continued up until the day she was terminated.10 Cortez filed a charge of
discrimination on April 6, which PCI learned of some time on or shortly after
April 16. Filing 1 at ¶ 21; filing 11 at ¶ 16; filing 28-1 at 86; see also note 4,
supra. Reyes filed her charge with the NEOC on April 16. Filing 25-1 at 88.
On April 20, PCI formulated the policies governing its reduction in force.
Filing 25-1 at ¶ 21, p. 136. On April 22, Reyes and two non-Hispanic
employees were terminated as part of the reduction in force. Filing 25-1 at ¶¶
21–22. Cortez put in her notice of intent to resign on the same day, but it is
not clear whether this happened before or after the decision to terminate
Reyes was announced. Filing 28-1 at ¶¶ 18–19, p. 138. Cortez's employment
did not end until April 29. Filing 28-1 at ¶ 18.
There is no evidence that PCI learned of Reyes' NEOC charge prior to
April 26, 2010. Filing 48-4 at 35. So, if the timing of these events is to support
The EEOC guidelines also gave Reyes a good-faith basis for believing the policy
may have been unlawful, given that the Eighth Circuit has yet to decide their
validity.
9

The parties have not briefed the issue, but the Court will assume, for purposes of
this motion, that this qualified as protected opposition. See Smith v. Wynfield
Development Co., Inc., 451 F. Supp. 2d 1327, 1350 (N.D. Ga. 2006) (noting that
EEOC compliance manual includes as protected conduct the refusal to obey an
order because of a reasonable belief that it is discriminatory); cf. Foster v. Time
Warner Entertainment Co., L.P., 250 F.3d 1189, 1194 (8th Cir. 2001) (manager may
have engaged in protected conduct if she refused to implement discriminatory
policy).
10

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a finding of causation, PCI must have retaliated against Reyes for her March
26 note of opposition, her continuing refusal to comply, or for Cortez's charge
of discrimination, which PCI learned of at some point between April 16 and
April 22. Assuming, for the sake of argument, that the timing between these
events and her termination establishes a prima facie case, Reyes has not
offered any evidence to show that PCI's reduction in force was pretextual.
While timing alone may suffice to establish a prima facie case, without more,
it is generally insufficient to show pretext and retaliatory motive. Hilt v. St.
Jude Medical S.C., Inc., 687 F.3d 375, 379 (8th Cir. 2012). With no other
evidence tying her termination to her (or Cortez's) protected activities, Reyes
has failed to set forth an issue of fact on her retaliation claim.
IV. CONCLUSION
The Court finds that PCI is entitled to summary judgment. Reyes has
failed to present evidence from which a reasonable jury could find that she
was discriminated against on the basis of race or national origin, or that she
was retaliated against for engaging in protected activities. Accordingly,
IT IS ORDERED that:
1.

Defendant PCI's motion for summary judgment (filing 24)
is granted;

2.

PCI's motion to strike (filing 51) is denied as moot; and

3.

A separate judgment will be entered.

Dated this 11th day of September, 2012.
BY THE COURT:

John M. Gerrard
United States District Judge

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