Cooper v. Penske Truck Leasing

Filing 29

MEMORANDUM AND ORDER - The defendant's motion for summary judgment (Filing 21 ) is granted. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGORY COOPER,
an individual,
Plaintiff,
v.
PENSKE TRUCK LEASING, CO.,
LTD PARTNERSHIP,
Defendant.

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8:14CV271

MEMORANDUM
AND ORDER

Plaintiff Gregory Cooper claims he was discriminated against and harassed
based on his race1 during his employment with Penske Truck Leasing, in violation of
Title VII and the Nebraska Fair Employment Practices Act.2 Defendant Penske has
filed a motion for summary judgment. (Filing 21.)
I. UNDISPUTED MATERIAL FACTS
1.

Plaintiff Cooper started working as a technician at Penske’s facility in

1

Pursuant to the parties’ stipulation, Cooper’s third cause of action for retaliation
was previously dismissed with prejudice. (Filing 20.)
2

See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and
the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 to 48-1125. Both
the Nebraska Supreme Court and the Eighth Circuit Court of Appeals have stated that
the NFEPA “‘is patterned after Title VII,’ and, therefore, ‘it is appropriate to consider
federal court decisions construing the federal legislation’ when considering questions
under the NFEPA.” Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1039 (8th Cir.
2005) (quoting City of Fort Calhoun v. Collins, 500 N.W.2d 822, 825 (Neb. 1993);
citing Orr v. Wal–Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002)).

Omaha, Nebraska, in November 2011. (Filing 1, Pl.’s Complaint ¶ 1.)
2.

Cooper is African-American. (Filing 1, Pl.’s Complaint ¶ 1.)

3.
Cooper always worked the 7:00 a.m. to 3:30 p.m. (“early” or “day”) shift
while employed at Penske. (Filing 27-3, Dep. of Gregory Cooper (“Cooper Dep.”)
80:15-19.)
4.
Cooper’s coworker, Aaron Poteet, told Cooper that other Penske
employees were complaining about Cooper’s skill level and making “racist comments”
about Cooper “every single day,” but Cooper did not personally hear any racial
comments from other Penske employees. (Filing 27-3, Cooper Dep. 32:12-15, 131:16132:5.) Cooper thinks racial comments about him were “more hidden between the
guys in a private conversation” and were “always done behind [his] back” and “[n]ever
to [his] face.” (Filing 27-3, Cooper Dep. 31:16-21, 60:7-19.)3 Cooper never
complained to management about any race- or color-based comments prior to October
2013. (Filing 27-3, Cooper Dep. 32:16-21.)
5.
On October 6, 2013, during an evening-shift break, the evening shift lead
technician Michael Wortman, Poteet, and a couple of other technicians were engaged
in a conversation. At one point in the conversation, Wortman said that he wanted to
call Cooper a “nigger” (or words to that effect) for a long time, but did not do so

3

Plaintiff’s counsel seeks to “dispute” this fact with Cooper’s testimony that “it
all makes perfect sense if—if you listen to the recording, everything’s in there from
the day I started all the way up to 2013, October 6, it made everything clear to me that
these guys hated me because of my skill level and my color which is I’m African
American.” (Filing 27, Pl.’s Br. Opp’n Def.’s Mot. Summ. J. at CM/ECF p. 2; Cooper
Dep. 31:10-15.) This vague testimony regarding an audio recording that is not before
the court does not contradict Cooper’s repeated statements that he did not personally
hear any racial comments about him. (Filing 27-3, Cooper Dep. 31:16-21, 32:12-15,
60:7-19.)
2

because he would be disciplined. (Filing 27-5, Dep. of Aaron Poteet (“Poteet Dep.”)
11:8-12:1.)4 Wortman’s racially-charged comment about Cooper was not said directly
to Cooper or in his presence. (Filing 27-3, Cooper Dep. 60:13-19; Filing 27-5, Poteet
Dep. 25:14-19.)
6.
Unbeknownst to Wortman, Poteet recorded the October 6, 2013,
conversation he had with Wortman. (Filing 27-5, Poteet Dep. 11:8-18, 12:2-4.)
7.
On October 8, 2013, Poteet informed Maintenance Supervisor Paul
Harden about the substance of the October 6, 2013, conversation, including
Wortman’s racial comment about Cooper. (Filing 27-3, Cooper Dep. 53:3-20; Filing
27-5, Poteet Dep. 15:18-23, 16:23-17:3.)
8.
Poteet complained to Harden about Wortman’s offensive and derogatory
language about Poteet’s “bloodline,” as well as the derogatory comment Wortman
made regarding Plaintiff. (Filing 27-4, Dep. of Paul Harden (“Harden Dep.”) 59:10-21;
Filing 27-5, Poteet Dep. 13:5-10, 15:18-23; Filing 27-3, Cooper Dep. 89:4-9.)
9.
After Poteet complained to Harden about Wortman’s October 6, 2013,
comments, Cooper played the audio recording of the October 6 conversation for
Harden within the same 24 hours. (Filing 27-4, Harden Dep. 46:16-20.)
10. Poteet was the only Penske employee who told Cooper that Wortman had
made a racist comment about him. (Filing 27-3, Cooper Dep. 131:16-20.)
11. On October 8, 2013, Maintenance Supervisor Harden held a mandatory
meeting with all technicians at the Penske facility. The purpose of the mandatory

4

Again, Plaintiff’s counsel “disputes” this fact with deposition testimony from
Poteet that does not contradict any part of this fact. (Filing 27, Pl.’s Br. Opp’n Def.’s
Mot. Summ. J. at CM/ECF p. 2.)
3

meeting was to review Penske’s anti-harassment policy. (Filing 27-3, Cooper Dep.
39:1-14; Filing 27-5, Poteet Dep. 15:18-16:13.)
12. At the meeting, Harden went over the policy, handed each technician a
copy of the policy, and had each technician sign the policy and agree to follow it.
(Filing 27-3, Cooper Dep. 39:1-23; Filing 27-5, Poteet Dep. 15:18-16:22.) Until the
October 8, 2013, meeting, Cooper did not know that Penske had an anti-harassment
policy and “who was the chain of command” because Penske did not provide him
with a “proper orientation.” Penske also failed to provide Cooper with a standard-issue
uniform for his first several weeks of employment. Instead, Penske gave him a
fluorescent shirt, about which his coworkers ridiculed him on a daily basis. (Filing 273, Cooper Dep. 40:1-15.)
13. On October 10, 2013, District Manager Tom Leto and Maintenance
Supervisor Harden held a mandatory technician meeting at the Omaha facility to
discuss the derogatory language that Wortman used on October 6, 2013. (Filing 27-3,
Cooper Dep. 43:6-18.)
14. The purpose of the October 10, 2013, mandatory meeting was to discuss
the anti-harassment policy and to reinforce what Harden had said two days earlier at
the prior meeting. (Filing 27-3, Cooper Dep. 50:23-51:13.)
15. The men that led the October 10, 2013, meeting communicated that
anyone who violated the anti-harassment policy would be disciplined. (Filing 27-3,
Cooper Dep. 51:19-52:5.)5
5

Plaintiff’s counsel again seeks to “dispute” this fact with testimony that does
not do so—that is, that Cooper met with Rich Papp, the Service Manager at Penske’s
J Street location in Omaha, and with Harden, but neither man seemed to “really care[]”
or show “concern.” (Filing 27-3, Cooper Dep. 42:4-43:24.) See NECivR 56.1(b)(1)
(response to movant’s statement of material facts shall consist of specifically cited
materials that correspond to each paragraph of “the movant’s statement of material
4

16. District Manager Tom Leto told Cooper on October 10, 2013, that
Wortman had been written-up, demoted, and his pay had been reduced $1.00 per hour
because he violated Penske’s anti-harassment policy on October 6, 2013. (Filing 27-3,
Cooper Dep. 70:8-71:17.) Cooper is “not sure” if these actions were actually taken
because he did not see the write-up or Wortman’s paycheck, and Wortman appeared
to be “still . . . in charge” after that date because Wortman retained his company credit
card, which was used by employees in “lead tech” positions. (Filing 27-3, Cooper Dep.
71:3-72:24.)
17. From July 2012 forward, Wortman always worked the second technician
shift, which started at 3:00 p.m. and ended at 11:30 p.m., while Cooper worked the
7:00 a.m. to 3:30 p.m. shift. (Filing 27-3, Cooper Dep. 80:20-81:2.) Cooper and
Wortman had very little interaction at work because they worked on opposite shifts,
and the overlap of the two shifts was only 30 minutes on any given day. (Filing 27-5,
Poteet Dep. 8:12-24, 10:8-11; Filing 27-4, Harden Dep. 61:16-62:9.) Penske
management did not move Wortman from the day shift to the night shift because
Cooper objected. (Filing 27-3, Cooper Dep. 76:16-78:12.)
18. During Cooper’s employment at Penske, Maintenance Supervisor Harden
asked both Cooper and Jordan Sterba, a Caucasian, to attend a “Freightliner” training
class, but there was only one open spot left in the class. Sterba got the last remaining
spot in the class, and Cooper was wait-listed. (Filing 27-4, Harden Dep. 62:16-25.)
Cooper thinks the class actually “wasn’t full,” and that Harden “just didn’t want [him]
to go” because Harden “had the same hate for [him] as Mike Wortman did.” (Filing
27-3, Cooper Dep. 74:15-75:24.) Cooper “know[s] no one was certified in Freightliner
but [him]—or needed that class to have [his] certification complete but [him].” (Filing
27-3, Cooper Dep. 80:2-4.)

facts that is disputed. Properly referenced material facts in the movant’s statement are
considered admitted unless controverted in the opposing party’s response”) (italics in
original; underlining added).
5

19. Cooper did not talk to technician Jordan Sterba or anyone else about why
Sterba was allowed to attend the training class instead of Cooper because he “didn’t
know who to complain to. Like I told you before, I didn’t know who was director of
H.R., I was, like I said, my orientation was, Hey go to work, . . . so I wasn’t properly
trained from the get-go.” (Filing 27-3, Cooper Dep. 74:19-75:17, 84:23-85:5,
99:15-100:6.) Cooper testified that even if he had complained, “It didn’t matter what
I said. [Paul Harden] lied to me anyway. The class wasn’t full so why would I talk to
him?” (Filing 27-3, Cooper Dep. 75:9-19.)
20. Jordan Sterba did not have as much skill and training as other technicians,
but he was “forced” to be a lead technician for a short period of time after Wortman
was demoted. (Filing 27-3, Cooper Dep. 100:7-16.) During the same time frame,
Cooper acted as the lead technician for at least one day, and he was able to stop a fight
between Poteet and another coworker during that shift. (Filing 27-3, Cooper Dep.
100:16-102:15.) Penske’s new human resources representative, Graylin Smith, thanked
Cooper for stopping the escalation, but then bypassed Cooper and promoted Matt
Shaw, a Caucasian, to the position of lead technician. (Filing 27-3, Cooper Dep.
101:15-102:19.)
21. Penske’s lead technicians distribute work, but do not have any
supervisory responsibilities. (Filing 27-4, Harden Dep. 11:8-12:1.)
22. While employed at Penske, Cooper always received a raise on his annual
start date. (Filing 27-3, Cooper Dep. 110:6-13, 122:3-14.)
23. After October 2013, no Penske employee made a racially-charged
comment to Cooper or in his presence because, Cooper believed, his coworkers knew
there was a no-tolerance policy and that they would be fired for making such a
comment. (Filing 27-3, Cooper Dep. 113:25-114:15; Filing 27-5, Poteet Dep.
25:14-19; Filing 27-4, Harden Dep. 61:4-15.) However, Cooper believed that after
October 2013, “things started to be said of me being a thief. Mike [Wortman] started
6

up again after a little while . . . he started saying things again behind my back.” (Filing
27-3, Cooper Dep. 114:16-115:7.)
24. Cooper gave his two-week notice to Penske on September 1, 2014, in
order to begin work for Ryder Trucking Company, where he makes more money and
receives better benefits. (Filing 27-3, Cooper Dep. 106:12-22, 108:2-7, 148:20-149:2.)
II. STANDARD OF REVIEW
“Summary judgment is proper if, after viewing the evidence and drawing all
reasonable inferences in the light most favorable to the nonmovant, no genuine issues
of material fact exist and the movant is entitled to judgment as a matter of law.”
Rynders v. Williams, 650 F.3d 1188, 1194 (8th Cir. 2011) (quotation marks and citation
omitted); Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”).
“‘Summary judgment is appropriate where one party has failed to present
evidence sufficient to create a jury question as to an essential element of its claim.’”
Rester v. Stephens Media, LLC, 739 F.3d 1127, 1130 (8th Cir. 2014) (quoting St.
Martin v. City of St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012)). See also Walz v.
Ameriprise Financial, Inc., 779 F.3d 842, 847 (8th Cir. 2015) (affirming grant of
summary judgment in favor of employer when plaintiff-employee failed to make a
prima facie showing of element of ADA claim); Register v. Honeywell Fed. Mfg. &
Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (“the court should grant summary
judgment if any essential element of the prima facie case is not supported by specific
facts sufficient to raise a genuine issue for trial”).
III. DISCUSSION
Plaintiff Cooper alleges that his employer discriminated against him and
7

harassed him based on his race because Penske failed to provide Cooper with job
orientation, access to information regarding the chain of command, copies of
harassment and other human-resource policies, the standard-issue uniform, and
training for which he was “wait-listed” but which was attended by a Caucasian male
employee. (Filing 27-3, Cooper Dep. 40:1-15, 74:15-75:8.) Cooper also bases his
claims on a racial comment made by coworker Michael Wortman.
A. Discrimination Based on Race
When there is no direct evidence of racial discrimination, the court must apply
the McDonnell Douglas burden-shifting framework to determine whether Cooper has
established a prima facie case of employment discrimination. Xuan Huynh v. United
States Dep’t of Transp., 794 F.3d 952, 958 (8th Cir. 2015). First, Cooper must show
that “(1) he was a member of a protected group; (2) he was qualified to perform the
job; (3) he suffered an adverse employment action; and (4) circumstances permit an
inference of discrimination.” Id. If the plaintiff establishes this prima facie case of
discrimination, a “presumption of unlawful discrimination” arises, and the burden of
proof shifts to the employer to “present evidence of a legitimate, nondiscriminatory
reason for its adverse employment action.” Id. (quotation marks and citation omitted).
If the employer can “articulate a nondiscriminatory reason, the burden returns to the
employee to prove that the proffered reason is pretextual.” Id. (quotation marks and
citation omitted).
The defendant does not dispute that Cooper was a member of a protected group
and that he was qualified to perform the job. (Filing 23, Def.’s Br. Supp. Mot. Summ.
J. at CM/ECF p. 15.) However, there is no evidence whatsoever that Cooper suffered
an adverse employment action as a result of the alleged discrimination. “An adverse
employment action is a tangible change in working conditions that produces a material
employment disadvantage. This might include termination, cuts in pay or benefits, and
changes that affect an employee’s future career prospects.” Wagner v. Campbell, 779
F.3d 761, 766 (8th Cir. 2015) (quotation marks and citation omitted).
8

Throughout his employment at Penske, Cooper received annual raises and
worked the more desirable daytime shift. Cooper never experienced an unfavorable
change in position or job duties, decrease in pay or benefits, suspension, or
termination—to the contrary, he voluntarily left Penske for a job that offered increased
pay and benefits.6 The fact that Cooper was wait-listed for training while a white
employee was allowed to attend the same training, without more, is not an adverse
employment action. “[T]here is no indication that the denial of this one training
session had any impact on [Cooper’s] eligibility for benefits such as a promotion or
pay raise.” Clegg v. Arkansas Dep’t of Correction, 496 F.3d 922, 928 (8th Cir. 2007);
see also Box v. Principi, 442 F.3d 692, 697 (8th Cir. 2006) (“‘[a]n employer’s denial
of an employee’s request for training is not, without more, an adverse employment
action.’” (quoting Griffith v. City of Des Moines, 387 F.3d 733, 737 (8th Cir. 2004)).
Penske’s other alleged discriminatory actions—failure to provide Cooper with
job orientation, information regarding the chain of command, copies of harassment
and other human-resource policies, and the standard-issue uniform—do not “show the
level of systematic bad treatment adversely affecting [Cooper’s] employment
situation” necessary to be fairly characterized as “a material employment
disadvantage” to Cooper. Clegg, 496 F.3d at 927-28; see also Box, 442 F.3d at 697
(denial of annual leave and failure to provide job description to plaintiff “fall short of
showing an adverse employment action” because neither action caused plaintiff to
“suffer a material change in employment resulting in an adverse employment action”).
Because the plaintiff has failed to establish a prima facie case of racial
discrimination, the defendant’s motion for summary judgment must be granted on this
claim.

6

Cooper does not assert a constructive discharge claim. Williams v. City of
Kansas City, Mo., 223 F.3d 749, 753 (8th Cir. 2000) (constructive discharge occurs
“when an employer deliberately makes an employee’s work environment so
intolerable that resignation is the employee’s only plausible alternative”).
9

B. Harassment/Hostile Work Environment Based on Race
A hostile work environment occurs “[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotations and
citation omitted). To prove that racial harassment by a non-supervisory coworker 7 like
Wortman has created a hostile work environment in violation of Title VII, Cooper
must prove the following five elements:

7

There is some suggestion in the depositions filed by the parties that as a “lead
tech,” Wortman was a supervisor, not simply Cooper’s coworker. However,
possession of a company credit card and ability to assign work do not make Wortman
a “supervisor” for purposes of Title VII liability. See Vance v. Ball State Univ., 133
S. Ct. 2434, 24443 (2013) (“an employer may be vicariously liable for an employee’s
unlawful harassment only when the employer has empowered that employee to take
tangible employment actions against the victim, i.e., to effect a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits” (quotation marks and citation omitted)); E.E.O.C. v. CRST Van Expedited,
Inc., 679 F.3d 657, 685 (8th Cir. 2012) (“a coworker’s authority to make mere
recommendations or evaluations to a superior about tangible employment decisions
pertaining to a fellow employee does not constructively promote that coworker to a
supervisor for purposes of vicarious Title VII liability”); see, e.g., Cheshewalla v.
Rand & Son Constr. Co., 415 F.3d 847, 851 (8th Cir. 2005) (holding that a harassing
foreman was merely his victim’s coworker, and not the victim’s supervisor, because
the foreman’s own supervisor possessed the authority to hire, fire, and promote the
laborers, and “although [the foreman’s supervisor] may have consulted with [the
harassing foreman] on such matters, the record [was] clear that [the harassing foreman]
lacked any such authority”); Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057
(8th Cir. 2004) (“While it is true that [the alleged harasser] signed at least three of [the
plaintiff’s] initial performance evaluations and that [the supervisor] acknowledged that
he had based his decision to terminate [the plaintiff] at least in part on [the plaintiff’s]
job[-]evaluation scores, [the alleged harasser] himself did not have the authority to
take tangible employment action against [the plaintiff].”).
10

“(1) he is a member of a protected class; (2) unwelcome harassment
occurred; (3) there is a causal nexus between the harassment and his
protected-group status; (4) the harassment affected a term, condition, or
privilege of his employment; and (5) [the employer] knew or should have
known of the harassment and failed to take prompt and effective remedial
action.” Robinson v. Valmont Ind., 238 F.3d 1045, 1047 (8th Cir. 2001).
Jackman v. Fifth Judicial Dist. Dept. of Correctional Svs., 728 F.3d 800, 805-06 (8th
Cir. 2013) (some brackets removed); Alvarez v. Des Moines Bolt Supply, Inc., 626
F.3d 410, 419 (8th Cir. 2010) (employer cannot be vicariously liable for harassment by
non-supervisory coworkers unless employer knows or should have known of
harassment and employer failed to take immediate and appropriate corrective action).8
“The standard for demonstrating a hostile work environment under Title VII is
demanding, and does not prohibit all verbal or physical harassment and it is not a
general civility code for the American workplace.” Jackman, 728 F.3d at 805-06
(quotation marks and citation omitted).
As to Penske’s alleged failure to provide Cooper with orientation, information
on the chain of command, copies of harassment and other human-resource policies, the
standard-issue uniform, and one training course, I conclude that Cooper has

8

If Wortman was actually Cooper’s supervisor, Cooper would only need to
establish the first four elements to prove a harassment claim. Watson v. CEVA
Logistics U.S., Inc., 619 F.3d 936, 942 (8th Cir. 2010) (harassment claim requires
showing of membership in protected class, unwelcome harassment, causal nexus, and
effect on term of employment; if non-supervisory employee was responsible for the
harassment, additional fifth element of employer’s knowledge and remedial action
taken is required); Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518-19 (8th Cir.
2010) (same); Bogren v. Minnesota, 236 F.3d 399, 407 n.6 (8th Cir. 2000) (“A
plaintiff need not show that her employer failed to take remedial action with
knowledge of the harassing conduct if the alleged harassers are supervisory
employees.”).
11

established neither a causal nexus between such “harassment” and his race, nor that
such harassment affected a term, condition, or privilege of his employment. As to
coworker Wortman’s racial comment made outside of Cooper’s presence, Cooper has
failed to establish that the comment affected a term, condition, or privilege of his
employment and that Penske failed to take prompt and effective remedial action.
1. Causal Nexus Between Harassment and Race
This element would be satisfied if Penske’s failures to provide Cooper with
various types of information, a uniform, and one training class were “because of”
Cooper’s race. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010);
Singletary v. Missouri Dept. of Corrections, 423 F.3d 886, 892 (8th Cir. 2005). Cooper
has presented nothing other than his belief that these failures were connected to his
race. On summary judgment, “the plaintiff must substantiate allegations with sufficient
probative evidence that would permit a finding in the plaintiff’s favor.” Frevert v.
Ford Motor Co., 614 F.3d 466, 473-74 (8th Cir. 2010). Simply alleging a connection
to race, without supporting evidence, “is insufficient to create a question of fact.”
Wagner v. Gallup, Inc., 788 F.3d 877, 888 (8th Cir. 2015) (testimony by former
employees that they believed employer fostered “ageist culture” was insufficient to
create question of fact for purposes of summary judgment; such testimony fell short
because it did not “sufficiently substantiate [the plaintiff’s] claims with probative
evidence that would permit a finding in his favor as he must at summary judgment”).
Because Cooper has failed to substantiate his allegation that Penske’s failure to
provide him with information, a uniform, and training was based on Cooper’s race, the
only remaining conduct at issue is Wortman’s racial comment made to Cooper’s
coworkers.
2. Affected Term or Condition of Employment
“[I]n order to find that the harassment affected a term, condition or privilege of
12

employment, [Cooper] must be able to establish that the conduct was extreme, such
that intimidation and ridicule permeated the workplace.” Jackman, 728 F.3d at 806.
The environment must be objectively and subjectively offensive—that is, “one that a
reasonable person would find hostile or abusive, and one that the victim in fact did
perceive to be so.” Carter v. Chrysler Corp., 173 F.3d 693, 701-02 (8th Cir. 1999).
The standards for a hostile environment are demanding, and conduct
must be extreme and not merely rude or unpleasant to affect the terms
and conditions of employment. When evaluating a hostile environment,
we look at the totality of the circumstances, including the frequency and
severity of the discriminatory conduct, whether such conduct was
physically threatening or humiliating, as opposed to a mere offensive
utterance, and whether the conduct unreasonably interfered with the
employee’s work performance.
Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 420 (8th Cir. 2010) (quotation
marks and citations omitted).
Wortman’s comment that “he wanted to call Cooper a ‘nigger’ (or words to that
effect) for a long time” and his alleged statement that Cooper was a
“thief”9—comments of which Cooper had only second-hand knowledge—simply do
not constitute conduct so severe or pervasive that a reasonable person would consider
Cooper’s work environment to be hostile or abusive. The comments were isolated,
infrequent, and not physically threatening, and there is no evidence that these
comments unreasonably interfered with Cooper’s work performance. See Bowen v.
Missouri Dep’t of Social Services, 311 F.3d 878, 884-85 (8th Cir. 2002) (specifying
factors to be considered in deciding whether work environment is hostile); see also

9

Cooper stated in his deposition that after October 2013, he believed that “things
started to be said of me being a thief. Mike [Wortman] started up again after a little
while . . . he started saying things again behind my back.” (Filing 27-3, Cooper Dep.
114:16-115:7.) However, Cooper has not presented evidence supporting his belief.
13

Sellers v. Deere & Co., 791 F.3d 938, 944 (8th Cir. 2015) (two severe and offensive
incidents over four years were “isolated”; other minor incidents like giving plaintiff
too much work, barring him from conference room, refusing to put work assignments
in writing, wrongly blaming plaintiff for failed audit, and general mistreatment may
have been “rude or unpleasant,” but were “not severe enough to affect the terms,
conditions, or privileges of his employment” (quotation marks and citations omitted));
Ellis v. Houston, 742 F.3d 307, 321 (8th Cir. 2014) (pattern of hostile conduct
established by looking at all black officers on plaintiff’s shift; officers experienced
racist remarks on near daily basis in front of entire staff with supervisors actively
joining in the “constant refrain of racist jokes”); Burkett v. Glickman, 327 F.3d 658,
661-62 (8th Cir. 2003) (no hostile work environment when plaintiff alleged that
supervisors made racially prejudicial remarks and coworkers engaged in racially
motivated treatment, but failed to present evidence that plaintiff was present during the
remarks and the contents of the remarks, and only supporting evidence was that
coworker heard the word “nigger” being used in front of “certain . . . . employees”;
“Offhand comments and isolated incidents of offensive conduct (unless extremely
serious) do not constitute a hostile work environment.”); Woodland v. Joseph T.
Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir. 2002) (“sporadic” racially motivated
conduct by coworkers was not severe or pervasive enough to create hostile work
environment); Dowd v. United Steelworkers of America, Local No. 286, 253 F.3d
1093, 1102 (8th Cir. 2001) (reasonable juror could have found workplace was
permeated with discrimination, ridicule, and insult when plaintiffs were subjected to
racial slurs, threats of physical violence, and plaintiffs feared for their personal safety).
3. Penske’s Knowledge and Response
An employer cannot be liable for harassment by a plaintiff’s coworker if the
employer responds to the harassment “with prompt remedial action calculated to end
it.” Alvarez, 626 F.3d at 421.
Factors in assessing the reasonableness of remedial measures may
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include the amount of time that elapsed between the notice and remedial
action, the options available to the employer, . . . and whether or not the
measures ended the harassment. Employees often must tolerate some
delay, however, so that an employer can gauge the credibility of the
complainant and the seriousness of the situation.
Alvarez, 626 F.3d at 421 (quotation marks and citations omitted).
Here, it is undisputed that the same day Wortman’s racial comment was
reported to Maintenance Supervisor Paul Harden, he took immediate action. Wortman
was immediately written up, demoted, and his pay was reduced. Penske management
then conducted a mandatory meeting regarding Penske’s anti-harassment policy, and
all technicians agreed to abide by it. Two days later, Harden and District Manager
Tom Leto convened a second mandatory technician meeting to further enforce the
policy. By Cooper’s own admission, these remedial measures were effective, as he was
unaware of any further comments which were racially based and directed at him after
October 8, 2013. Cooper testified that such comments ceased because his coworkers
“knew that there was a no[-]tolerance policy and they would be fired.” (Filing 27-3,
Cooper Dep. 114:10-15.)
I conclude that Penske’s actions were “reasonably calculated to stop the
harassment,” and Penske’s response “effectively ended the harassment within a
reasonable time.” Alvarez, 626 F.3d at 421 (quotation marks and citations omitted)
(district court properly granted summary judgment in favor of employer on sexual
harassment claim because after plaintiff complained to supervisor about physical
harassment, management confronted the alleged aggressor, spoke to coworkers, and
reported information to upper management, and after written complaint was filed,
employer launched investigation, prepared report finding violations of company
policy, suspended aggressor without pay for five days, and transferred him to another
department, resulting in no further harassment of plaintiff).

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4. Conclusion on Harassment Claim
Because Cooper has failed to establish specific facts sufficient to raise a genuine
issue for trial regarding at least one element for all of the conduct Cooper characterizes
as harassment, summary judgment is appropriate on Cooper’s harassment claim.
Accordingly,
IT IS ORDERED:
1.

The defendant’s motion for summary judgment (Filing 21) is granted; and

2.

Judgment shall be entered by separate document.

DATED this 9th day of November, 2015.
BY THE COURT:
s/ Richard G. Kopf
Senior 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.
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