Mullanix v. Union Pacific Railroad Company
MEMORANDUM AND ORDER granting 26 Motion for Summary Judgment. Mullanix's complaint is dismissed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
UNION PACIFIC RAILROAD
The plaintiff, Jess Mullanix, alleges that he was sexually harassed by a
coworker while employed by the defendant, Union Pacific Railroad (UP), in
2014 and 2015. Mullanix claims that after he reported those incidents, UP
retaliated against him by changing his position and cutting his pay. He
further alleges that UP discriminated against him on account of his
disability, and retaliated against him for requesting medical leave under the
Family Medical Leave Act.
Mullanix has sued UP for disability discrimination under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and
Rehabilitation Act; hostile work environment sexual harassment under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and unlawful
retaliation under the ADA and Title VII. UP moves for summary judgment,
arguing that Mullanix's claims fail as a matter of law. For the reasons
discussed below, UP's motion will be granted.
The following facts are not meaningfully disputed. Jess Mullanix began
his employment with UP in 2011 as a utility clerk. The following year,
Mullanix was promoted to an internal support services position, which he
held until 2015. Filing 28-1 at 3. In that role, Mullanix worked directly with
crew dispatchers and managers, fielding their questions and assisting with
technical support. Filing 28-1 at 7-8. One of those managers was a UP
employee named William Bowman.
(a) Alleged Harassment
Mullanix claims that Bowman harassed him on at least four separate
occasions beginning in 2014. The first incident, Mullanix alleges, occurred on
June 19 when Mullanix left his work station to use the restroom. Filing 28-1
at 8. Mullanix says that he was standing at the urinal when Bowman
approached him and asked if he could "piss on demand . . . can you take your
cock and can you piss on demand?" Filing 28-1 at 8. After a short back-andforth, Bowman left the restroom, and Mullanix returned to his work station.
Filing 28-1 at 8. The entire incident—from Bowman entering the restroom to
exiting—lasted approximately one minute. Filing 28-1 at 8.
Bothered by the encounter, Mullanix reported the incident to Bowman's
supervisor, Sara Foust, who sent Bowman home for the night. Filing 27 at 5;
filing 28-1 at 8; filing 28-5 at 2. Bowman later admitted to Foust that he "said
something in poor taste" to Mullanix while the two men were in the restroom,
attributing the comment to their shared military experience. Filing 28-6 at 2.
Bowman agreed to treat Mullanix "[j]ust like normal" and to act as if
"nothing had happened" until Foust could work out a resolution between the
parties. Filing 28-6 at 3. Meanwhile, within a 24-hour span, Mullanix had
reported the incident to two additional sources: UP's "Values Line," which is
a means by which employees can report problems or concerns, and Jim Swan,
Mullanix's local union chairman. Filing 28-1 at 8-9; filing 28-8 at 1.
The second alleged incident occurred two days later while Mullanix was
working in a shared cubicle with Matthew Besse. Filing 28-1 at 9. According
to Mullanix, Bowman approached his work space 6 times over a 30 minute
period while Mullanix was on the phone with a different crew manager.
Filing 28-1 at 10. Besse, who was unoccupied at the time, eventually asked
Bowman how he could help, but Bowman allegedly insisted on speaking with
Mullanix. See filing 28-1 at 9-10. Mullanix says that immediately upon
hanging up the phone, Bowman pulled up a chair and "scooted over as close
as he could to me, put his leg touching mine, and he said, you know, you and
I are like brothers. I pay union dues just like you do." Filing 28-1 at 10.
Mullanix claims that he walked away from Bowman and then reported the
incident to Foust and UP's Values Line. Filing 28-1 at 10. Foust sent
Bowman home a second time before the end of his shift.
Several conversations with UP management followed. For example,
Mullanix spoke with Foust after the second alleged incident, telling her that
he "wasn't interested in having a relationship with Mr. Bowman" because
Bowman was "talking about things that guys don't normally talk about with
each other." Filing 28-1 at 11. Mullanix also spoke with his direct supervisor,
Mark Applegate. Filing 28-1 at 12. Applegate, like Foust, acknowledged the
improper nature of Bowman's alleged comments, but encouraged Mullanix to
maintain a professional relationship with him. See filing 28-1 at 12.
Mullanix also learned of an internal investigation by UP's Equal
Employment Opportunity (EEO) division, which found that Bowman had, in
fact, violated the company's sexual harassment policy. Filing 27 at 7; filing
31-4 at 7. As a result, Bowman was required to take an EEO class and sign
an official letter of reprimand. Filing 27 at 8-9; filing 28-9 at 3. He was also
instructed to stay out of the restroom when Mullanix was using it and to
limit his conversations with Mullanix to work-related topics. Filing 27 at 8.
Two months passed without incident. However, on or around August 8,
Mullanix reported that Bowman had followed him into the restroom, looked
at him, and left. As Mullanix explained:
[Bowman] would have been at his desk. I was at mine. I got up,
walked to the bathroom. He got up behind me, walked to the
bathroom. I'm going to the bathroom. He looks in the door, walks
Filing 31-3 at 20. Then, in January 2015, Mullanix reported a similar
incident in which Bowman allegedly followed him out to UP's parking garage.
As to that incident, Mullanix claims that Bowman "stalked" him "to the edge
of the parking lot" and then "watched [him] walk to [his] car and then get
in[.]" Filing 31-3 at 20. According to Mullanix, that incident, coupled with the
prior encounters, made him uncomfortable in his job and encouraged him to
"get out of the department where Bowman was working." Filing 31-3 at 25.
(b) Train Dispatcher Position
In September 2014, before the alleged parking lot incident, Mullanix
applied for a position as a train dispatcher. Filing 31-3 at 25. The following
month, UP notified Mullanix that he was selected for the position, contingent
upon his successful completion of a background investigation and a preplacement physical exam. Given those contingencies, the letter recommended
that Mullanix "not giv[e] notice to [his] current employer or incur any
expense in reliance upon th[e] offer[.]" Filing 28-2 at 6. Mullanix's tentative
start date for the new position was January 5, 2015.
Shortly after receiving the offer, Mullanix sent a text message to his
supervisor, Applegate, regarding the news. He informed Applegate that he
"had been selected to move forward in the train dispatching," and that he
"[didn't] think the class starts until January." Filing 28-2 at 8. According to
Applegate, he interpreted the message as a notification that Mullanix had
been hired as a train dispatcher effective January 2015. Filing 28-3 at 5. So,
believing Mullanix's job would be vacant, Applegate posted the position and
began accepting applications. By the end of November, Applegate had
awarded the position to another employee. Filing 28-3 at 8-9.
By December, Mullanix had expressed second thoughts about the
possibility of switching jobs. In an email to a UP director, Mullanix wrote "my
wife has assured me that we will not be able to cover our expenses and will
incur a major hardship on my family if I go into this position at [the salary
offered]." Filing 28-2 at 10. In a second email, sent later in the month, he told
the director that his wife was still "very upset about me going to Train
Dispatching," and requested that he "stay in [his] current position." Filing 282 at 12. The director responded to Mullanix's request, offering to delay his
start date until July 2015, at which point a pay raise would become effective.
Filing 31-3 at 30. Mullanix responded immediately, writing "[s]tarting in July
sounds great with a higher rate of pay." Filing 28-2 at 13.
After that arrangement was finalized, Mullanix's physician notified UP
that Mullanix could not be cleared for the train dispatching position. "After
careful review of [the] patient's chart," the physician wrote, "I do NOT feel
that [Mullanix] is fit for duty for the role of train dispatcher." Filing 28-2 at
18. Citing that recommendation, UP "revoked" its conditional offer of
employment in a December 23 letter to Mullanix. See filing 28-2 at 22. And
because his prior position had already been filled, UP management allegedly
informed Mullanix that his only option was to bid on an open position in crew
dispatching. Filing 31-3 at 40. Mullanix bid on and was accepted to the
position, which he held for approximately one month until his transfer to
UP's customer service department. Mullanix remains in that position today.
Filing 28-1 at 33-34.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial 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 existence of a mere 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.
Mullanix claims that he was subjected to unlawful sexual harassment
and retaliation. Filing 1 at 9-12. He also claims that UP discriminated
against him on account of his disability by, among other things, demoting
him and cutting his salary. Filing 1 at 12. UP moves for summary judgment,
arguing that Mullanix's claims fail as a matter of law.
SEXUAL HARASSMENT: HOSTILE WORK ENVIRONMENT
Mullanix alleges that Bowman, his co-employee, subjected him to
unwelcome sexual harassment. To establish a prima facie case against an
employer for sexual harassment by one of its employees, Mullanix must
show: (1) he is a member of a protected group; (2) was the victim of
unwelcomed sexual harassment; (3) the harassment occurred because of his
sex; (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 proper action. Blomker v. Jewell, 831 F.3d
1051, 1056 (8th Cir. 2016). UP moves for summary judgment at step four,
arguing that Bowman's alleged harassment did not affect a term, condition,
or privilege of Mullanix's employment. Filing 27 at 24.
Workplace harassment affects a term or condition of employment when
it is "severe or pervasive[.]" Duncan v. General Motor Corp., 300 F.3d 928,
934 (8th Cir. 2002). Thus, to be actionable, the claimant must show that the
workplace is "permeated with discriminatory intimidation, ridicule, and
insult." Id. (internal quotation marks omitted). In determining whether the
conduct is sufficiently severe or pervasive, the Court looks to the totality of
circumstances, including the "frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993); see Alagna v. Smithville R–II Sch. Dist., 324 F.3d 975, 980 (8th Cir.
2003) (conduct must be "extreme").
Mullanix supports his prima facie case with reference to the four
alleged incidents described above. To that end, Mullanix contends that
Bowman's harassment was "severe and physical" as evidenced by Bowman's
touching of Mullanix's leg, and generally "humiliating" as demonstrated by
Bowman's references to "sex and sexual innuendo." Filing 31 at 46-47.
Viewing the evidence in the light most favorable to Mullanix, the Court
finds that the alleged incidents fail, as a matter of law, to clear the "high
threshold" necessary to establish an actionable case based on a hostile work
environment. Indeed, the Eighth Circuit Court of Appeals has routinely
rejected hostile work environment claims premised upon facts far more
egregious than the conduct alleged here. For example, in Duncan, the Eighth
Circuit, reversing a jury verdict, rejected a hostile work environment claim
where a supervisor, among other harassing conduct: requested a sexual
relationship from the plaintiff; touched the plaintiff's hand on multiple
occasions; displayed a pacifier that was shaped like a penis; displayed a
computer screen with a picture of a naked woman; and created a recruitment
poster that portrayed the plaintiff as the president and CEO of the "Man
Hater's Club of America." Duncan, 300 F.3d at 932-35. That behavior was
"boorish, chauvinistic, and decidedly immature," the appellate court
determined, but did not amount to an objectively hostile work environment
under Title VII. Id. at 935.
Here, the record indicates that Bowman approached Mullanix in the
men's restroom and asked him if he could "piss on demand." Filing 28-1 at 8;
filing 28-6 at 2. Mullanix further alleges that Bowman approached him on
three additional occasions over a 6-month period and (1) touched his leg
against Mullanix's; (2) followed Mullanix into the restroom; and (3) "stalked"
Mullanix as he walked to the parking garage and entered his vehicle. See
filing 31 at 45-49. While those encounters may have been uncomfortable for
Mullanix, they are not sufficiently severe or pervasive, when considered as a
whole, to satisfy the high threshold for actionable harm. See Alagna, 324 F.3d
at 980. Accordingly, Mullanix's sexual harassment claim fails as a matter of
law, and UP's motion for summary as to that claim will be granted.
Mullanix also claims that he was discriminated against on account of
his disability in violation of the ADA and Rehabilitation Act.1 Filing 1 at 7-11.
To support that claim, Mullanix points to UP's actions immediately following
his conditional offer for the train supervisor position. Specifically, Mullanix
suggests that his supervisor, Applegate, used the conditional offer as an
excuse to "push him out" of his internal services position because, as
Mullanix alleges, he has a disability.2 Filing 31 at 50. Applegate achieved
that goal, Mullanix says, by immediately posting and filling his position
The ADA and Rehabilitation Act are virtually identical, so "cases interpreting either are
applicable and interchangeable." Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)
(internal citation omitted).
The nature of Mullanix's disability is not entirely clear from the record. But UP does not
challenge that fact, so the Court need not address it here.
before Mullanix was cleared for the new role. Filing 31 at 51. Thus, when
Mullanix was deemed medically unfit for the position, he was forced to take a
different job with less pay and fewer benefits. See filing 1 at 10.
The ADA prohibits discrimination "against a qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment." 42
U.S.C. § 12112(a). To establish a prima facie case of discrimination, Mullanix
must show that he (1) has a qualifying disability under the ADA; (2) is a
qualified individual under the ADA; and (3) was subjected to an adverse
employment action due to his disability. Kelleher v. Wal-Mart Stores, Inc.,
817 F.3d 624, 631 (8th Cir. 2016). Upon establishing a prima facie case, the
burden shifts to UP to articulate a legitimate, nondiscriminatory reason for
adverse action. After articulating such a reason, the burden shifts back to
Mullanix to present evidence that the reason is pretextual. See Wilking v.
County of Ramsey, 153 F.3d 869, 872-73 (8th Cir. 1998).
Even assuming that Mullanix could satisfy his prima facie burden, UP
has offered a legitimate, non-discriminatory reason for transferring
Mullanix's position. Indeed, as noted above, Applegate posted the position
after Mullanix informed him that he had been "selected to move forward in
train dispatching[.]" Filing 28-2 at 8. Believing that Mullanix was leaving his
position, Applegate posted and filled the job to avoid a January vacancy.
Filing 28-3 at 5. It was only after the new employee had been hired, and
Mullanix was deemed medically ineligible, that Applegate learned of
Mullanix's desire to stay put. And by that time, UP claims it was too late—
noting that it "could not oust [Mullanix's replacement] from the  position to
reinstate Mullanix[.]" Filing 27 at 29.
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Mullanix argues that UP's stated reason for the transfer is pretextual
because a different employee, Mindy Totten, was allowed to return to her
previous position under nearly identical circumstances. See filing 31 at 55.
But as UP correctly points out, that comparison is not relevant here because
Mullanix and Totten are not "similarly situated." Herrero v. St. Louis Univ.
Hosp., 109 F.3d 481, 485 (8th Cir. 1997) (comparison to other employees is
valid only if employees are similarly situated to plaintiff). Indeed, as
Mullanix acknowledges, Totten was a crew manager, not an internal support
services employee. Filing 31 at 55; filing 32 at 14. So, even assuming that
Totten was allowed to return to her previous position, that action "is not
credible evidence" that could raise a genuine issue of fact regarding UP's
motivation for transferring Mullanix. Herrero, 109 F.3d at 485; see Nitschke
v. McDonnell Douglas Corp., 68 F.3d 249, 252 (8th Cir. 1995). Accordingly,
because no genuine issues of fact remain, the Court will grant UP's motion as
to Mullanix's claims under the ADA and Rehabilitation Act.
Mullanix next contends that UP "demoted" him in retaliation for
reporting Bowman's alleged harassment. That claim is premised on the same
factual basis described above—i.e., that Applegate pushed him out of internal
services by posting and filling his job immediately after Mullanix received the
conditional offer for train dispatching. Filing 1 at 11-12.
Without direct evidence of a retaliatory motive, Mullanix's claim
depends on the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under that framework, the initial burden is on
Mullanix to establish a prima facie case that would permit a reasonable jury
to find that (1) he engaged in protected conduct, (2) he suffered an adverse
employment action, and (3) the adverse action was causally linked to the
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protected conduct. Stewart v. Indep. School Dist. No. 196, 481 F.3d 1034,
1042-43 (8th Cir. 2007). The burden then shifts to UP to articulate a
legitimate, non-retaliatory reason for the adverse action, then back to
Mullanix to show that this reason is a pretext for retaliation. Id.
UP moves for summary judgment at step three, arguing that no casual
nexus exists between Mullanix's reports of harassment and his eventual
transfer to the company's customer service division. See filing 27 at 28. To
overcome that motion, Mullanix must show that his protected activity was a
but-for cause of his employer's adverse action. Shirrell v. St. Francis Med.
Ctr., 793 F.3d 881, 888 (8th Cir. 2015). Mullanix can satisfy that standard
through circumstantial evidence, such as timing between the protected act
and the adverse employment action, the employer's treatment of the
employee, the employer's reaction to the protected conduct, or inconsistent or
contradictory explanations for the adverse employment action. See Kwan v.
Andalex Group, LLC, 737 F.3d 834, 846 (8th Cir. 2013); Bainbridge v.
Loffredo Gardens, Inc., 378 F.3d 756, 761 (8th Cir. 2004).
Mullanix has not satisfied his burden at step three, and the Court will
therefore grant UP's motion on those grounds. Indeed, in response to UP's
argument, Mullanix merely reiterates his basic allegations regarding
Bowman's alleged harassment, and claims that Applegate "gave [his] job
away and refused to undo the posting or allow him to return or bump back
into his position." Filing 31 at 54. But Mullanix has presented no evidence—
circumstantial or otherwise—to support any causal connection between the
events. And his failure to do so is particularly noteworthy here, where UP's
alleged retaliatory actions occurred four months after Mullanix's reports of
harassment. See filing 27 at 28. As the Eighth Circuit has recognized, that
gap in time is insufficient to create an inference of a causal connection
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between protected conduct and an adverse action. Van Horn v. Best Buy
Stores, L.P., 526 F.3d 1144, 1149 (8th Cir. 2008); Trammel v. Simmons First
Bank of Searcy, 345 F.3d 611, 616 (8th Cir. 2003).
Although not entirely clear from the record, Mullanix seems to allege
an additional claim of discrimination and retaliation based on his use of
medical leave under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601
et seq..3 Filing 1 at 8. Those claims appear to stem from a separate attempt by
Mullanix, on or around January 15, 2015, to regain a position in the internal
support services division. Around that time, UP posted an opening in the
division after a different employee, Knick Tottens, left his position. See filing
28-1 at 34. Mullanix applied for the job, but was ultimately turned down
because, as Mullanix alleges, Applegate informed him that he had taken too
much medical leave. See filing 1 at 8; filing 28-1 at 37; Filing 28-1 at 20.
To the extent that Mullanix seeks relief on those grounds, the Court
concludes that UP is entitled to summary judgment. Indeed, as UP correctly
points out, the alleged facts surrounding Mullanix's claims occurred after he
had submitted his final complaint with the Nebraska Equal Opportunity
Commission (NEOC). Filing 27 at 32. In other words, unlike the claims
addressed above, the NEOC neither considered nor adjudicated Mullanix's
allegations regarding UP's decision to deny him Tottens' open position. And
that is significant because, as the Supreme Court has made clear, "[e]ach
incident of discrimination and each retaliatory adverse employment decision
constitutes a separate actionable unlawful employment practice" that must
be considered by an administrative body before the claim is filed in federal
The lack of clarity surrounding this claim stems in part from Mullanix's failure to address
it, despite UP's arguments for dismissal, in his response brief.
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court. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)
(internal quotation marks omitted); see Richter v. Advance Auto Parts, Inc.,
686 F.3d 847, 850-51 (8th Cir. 2012); see also 42 U.S.C. § 12117(a)
(incorporating the enforcement provisions of Title VII).4 Thus, because
Mullanix has not exhausted his additional discrimination and retaliation
claims, UP is entitled to summary judgment.
Therefore, the Court will grant UP's motion for summary judgment
and dismiss Mullanix's complaint in its entirety.
IT IS ORDERED:
UP's motion for summary judgment (filing 26) is granted.
Mullanix's complaint is dismissed.
A separate judgment will be entered.
Dated this 22nd day of November, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
And because UP's decision in this respect was a "discrete act" that occurred subsequent to
Mullanix's timely filed administrative charges, it does not fall within the Eighth Circuit's
"considerably narrow" exception to administrative exhaustion. Wedow v. City of Kansas
City, 442 F.3d 661, 672-73 (8th Cir. 2006); see Richter, 686 F.3d at 850-51.
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