Tremaine v. Goodwill Industries, Inc.

Filing 52

MEMORANDUM AND ORDER - The Motion for Summary Judgment, ECF No. 38 , filed by Defendant Goodwill Industries, Inc., is granted. This action is dismissed, with prejudice. A separate judgement will be entered. Ordered by Chief Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ROSS F. TREMAINE,
Plaintiff,

8:16CV488

vs.
MEMORANDUM AND ORDER
GOODWILL INDUSTRIES, INC., a
Nebraska nonprofit corporation;
Defendant.

This matter is before the Court on the Motion for Summary Judgment, ECF No.
38, filed by Defendant Goodwill Industries, Inc.

For the reasons stated below, the

Motion will be granted.
BACKGROUND
Unless otherwise indicated, the following facts are those stated in the parties’
briefs, supported by pinpoint citations to admissible evidence in the record, in
compliance with NECivR 56.11 and Federal Rule of Civil Procedure 56.
Goodwill hired Plaintiff Ross Tremaine as a Facilities Manager on October 17,
2011. In this position, Tremaine oversaw the maintenance, efficiency, and safety of
Goodwill’s buildings, which included managing custodial staff and procuring furniture,
utilities, and equipment.
1

In February of 2014, Randy Parks, Tremaine’s immediate

See NECivR 56.1(b)(1):

The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should
address each numbered paragraph in the movant’s statement and, in the case of any
disagreement, contain pinpoint references to affidavits, pleadings, discovery responses,
deposition testimony (by page and line), or other materials upon which the opposing party
relies. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.

supervisor, promoted him to Facilities Director. He retained all of his responsibilities as
Facilities Manager and took on the added responsibilities of serving on the Executive
Staff and Crisis Management Team. He became involved in budget planning, assisted
in developing safety programs, and led a job hazard analysis of the facilities under his
care. He also oversaw the performance of vendor contracts for Goodwill’s building
systems and operations. One employee, Brett Karnes, directly reported to Tremaine
and as many as four employees indirectly reported to him while he was the Facilities
Director.

Before working at Goodwill, Tremaine worked in the facilities industry for

twenty years, but had no formal education beyond high school.
On or about February 9, 2015, Kent Caniglia was promoted to Director of Risk
Management and became Tremaine’s immediate supervisor. Caniglia reported directly
to Parks. On July 10, 2015, Parks decided to terminate Tremaine after Karnes verbally
reported to Caniglia that Tremaine had been removing company tools from the
workplace and taking them home for his own personal use without permission and
against company policy. Following Karnes’s report, Caniglia and Jennifer Rohr, the
Human Resources Director, began an investigation and interviewed Tremaine regarding
the contents of the report. During the interview, Tremaine conceded he had taken a
table saw, hand saw, chop saw, and compressor, and that he had been in possession
of the compressor for at least two months. Tremaine Depo., ECF No. 41-2, Page ID
306, 352. Though Tremaine disputes this fact, Karnes reported that Tremaine had
instructed him to repurchase, on Goodwill’s behalf, some of the tools he had taken
home. After reviewing the investigation’s findings, Parks concluded Tremaine’s conduct
clearly violated company policy because he made personal use of company tools for
2

extended periods of time and deprived other employees of their use at work. He also
concluded that the circumstances indicated Tremaine intended to keep some tools
indefinitely. Tremaine identified Gale Husk and Karnes as other employees who had,
on prior occasions, also made personal use of company tools. Karnes and Caniglia
absorbed Tremaine’s job responsibilities after he was terminated.
When Tremaine started at Goodwill as the Facilities Manager on October 17,
2011, he was compensated at an annual salary of $60,000.

He received several

performance-based, periodic raises and when he was promoted to Facilities Director in
February of 2014, his salary increased to $71,150. He received his last annual raise
before he was terminated on October 17, 2014, which increased his salary to $73,300.
Two female employees, Erin Swanson-Russell and Shannon McGree, also held director
positions at Goodwill throughout the time Tremaine was Facilities Director. SwansonRussell was hired as the Director of Planned Giving on or about July 27, 2012, at an
annual salary of $105,900. Goodwill changed her job title to Development Director2 on
February 10, 2014, and by July 27, 2015, her salary had increased to $118,500.
McGree was hired on October 11, 2004, as an Assistant Store Manager at an annual
salary of $24,000. On September 17, 2011, she was promoted to Retail Sales Director
and her salary was increased to $62,500. Like other Goodwill employees, she received
annual performance-based raises and by September, 17, 2014, her salary was $72,275.
As Retail Sales Director, McGree was also eligible to receive monthly and quarterly
bonuses based on store revenue under the Retail Management Bonus Program.

2

The change in Swanson-Russell’s job title was not considered a promotion and her
responsibilities remained “relatively the same.” Def.’s Br., ECF No. 40, Page ID 212.

3

Neither Tremaine nor Swanson-Russell was eligible for bonuses under the Retail
Management Bonus Program.
As the Development Director, Swanson-Russell was responsible for managing
Goodwill’s overall fundraising efforts, leading resource and community development
efforts, and establishing fundraising strategies, policies, and goals. ECF No. 41-16,
Page ID 613-17. She was responsible for cultivating donor relationships, applying for
grant funding, and “implementing a Legacy Society for persons who commit resources
to Goodwill” as part of an estate plan. Id. Her position required a bachelor’s degree,
but preferred a master’s degree in a relevant area of study, and it is undisputed she
possessed both. Pl.’s Br., ECF No. 44, Page ID 655. As the Retail Sales Director,
McGree oversaw retail operations for seventeen Goodwill stores, including the
collection, processing, distribution, and sales of donated goods. She was responsible
for the overall fiscal viability of each store and the supervision of over 200 retail
employees. This position preferred a bachelor’s degree in a field related to retail, and
McGree had a bachelor’s degree in education.3
Tremaine claims Goodwill unlawfully discriminated against him by paying him
less than Swanson-Russell and McGree and by terminating his employment because of
his age and sex. At termination, he was forty-eight years old. Specifically, he claims
Goodwill’s decisions regarding his wages and termination violated the Equal Pay Act
(EPA), 29 U.S.C. § 206(d)(1); the Equal Pay Act of Nebraska (EPAN), Neb. Rev. Stat. §
48-1221(1); Title VII, 42 U.S.C. § 2000e-2(a)(1); the Nebraska Fair Employment
3

Despite stating that it is “[u]ndisputed” McGree had a bachelor’s degree in “a related field,”
Tremaine subsequently argued that education was not relevant to her position. Compare Pl.’s Br. ¶ 41,
ECF No. 44, Page ID 650, with Pl.’s Br., ECF No. 44, Page ID 669-70.

4

Practices Act (NFEPA), Neb. Rev. Stat. § 48-1104(1); the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 623(a)(1); and the Nebraska Age Discrimination
in Employment Act, Neb. Rev. Stat. § 48-1004(1)(a).
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods
Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)).
“Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty.
of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for
summary judgment, the Court will view “the record in the light most favorable to the
nonmoving party . . . drawing all reasonable inferences in that party’s favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d
920, 923–24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof
at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to
be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th
Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving
party need not produce evidence showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting
Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged
by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s
5

case.” St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596 (8th Cir. 2001)
(quoting Celotex, 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to
produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM
Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do
more than simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine issue for
trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643
F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual
dispute” between the parties in order to overcome summary judgment.

Dick v.

Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom
Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
In other words, in deciding “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.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at
1042). Otherwise, where the Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party,” there is no “genuine issue of
material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076
(quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).
DISCUSSION

6

Tremaine has failed to establish a prima facie case for unequal pay under the
EPA and the EPAN. There is also no evidence that Goodwill intentionally discriminated
against Tremaine because of his age or sex.
I. Equal Pay Claims
To establish a claim for sex-based wage discrimination under the EPA or EPAN4,
“a plaintiff must show by a preponderance of the evidence that (1) [he] was paid less
than a [woman] employed in the same establishment, (2) for equal work on jobs
requiring equal skill, effort, and responsibility, (3) which were performed under similar
working conditions.” Dindinger v. Allsteel, Inc., 853 F.3d 414, 421-22 (8th Cir. 2017)
(quoting Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002)); see also
29 U.S.C. § 206(d); 29 C.F.R. §§ 1620.13-1620.17. An employer may “establish an
affirmative defense by demonstrating that “different payment to employees of opposite
sexes ‘is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv) a differential based on
any other factor other than sex.’” Dindinger, 853 F.3d at 422 (quoting 29 U.S.C. §
206(d)(1)). Tremaine claims the disparity between his wages and those paid to Erin
Swanson-Russell and Shannon McGree violated the EPA and EPAN.
A. Erin Swanson-Russell
Tremaine cannot establish a prima facie case because he and Swanson-Russell
did not perform substantially equal work in jobs requiring equal skill or responsibility. 29
U.S.C. § 206(d). “In a wage discrimination case, although the jobs being compared
4

Section 48-1221(1) of the EPAN “is patterned after the federal EPA, 29 U.S.C. § 206(d), [and] it
is appropriate to look to federal court decisions construing 29 U.S.C. § 206(d) for guidance with respect to
§ 48-1221(1).” Knapp v. Ruser, 901 N.W.2d 31, 46 (Neb. 2017).

7

need not be identical, they must be substantially equal as actually performed.” Hill v.
City of Pine Bluff, 696 F.3d 709, 712 (8th Cir. 2012) (citing Simpson v. Merchs. &
Planters Bank, 441 F.3d 572, 578 (8th Cir. 2006)). “Job classifications and titles are not
dispositive.” Hill, 696 F.3d at 712 (citing Tenkku v. Normandy Bank, 348 F.3d 737, 739
(8th Cir. 2003)).
Whether two jobs entail equal skill, equal effort, or equal responsibility
requires a practical judgment on the basis of all the facts and
circumstances of a particular case. Skill includes such considerations as
experience, training, education, and ability. Effort refers to the physical or
mental exertion necessary to the performance of a job. Responsibility
concerns the degree of accountability required in performing a job.
Simpson, 441 F.3d at 578 (quoting EEOC v. Universal Underwriters Ins. Co., 653 F.2d
1243, 1245 (8th Cir. 1981)).
Tremaine provided no evidence of how Swanson-Russell actually performed her
job. The only evidence of what her job entailed was provided in Goodwill’s listing of
expectations for the individual who occupies the Development Director position and
there are certain aspects of the position—public relations, community development,
creating fund raising strategies, implementing donor programs, soliciting donations,
cultivating donor relationships—that distinguish it, significantly, from the duties of
Tremaine’s facilities positions. See Horn v. Univ. of Minn., 362 F.3d 1042, 1046 (8th
Cir. 2004) (finding two assistant coaching positions were not substantially equal where
one involved “recruiting and public relations duties”); see also ECF No. 41-16. Although
he performed some budgeting tasks and managed vendor contracts, there is no
evidence that Tremaine performed similar public relations, solicitation, or strategic
planning tasks. Further, it is undisputed that there was a substantial education disparity

8

associated with Tremaine’s position and Swanson-Russell’s position.

Her position

preferred, and she had, a relevant master’s degree while Tremaine’s positions required
no post-secondary education5 and he had no formal education beyond high school.
Based on this evidence, no rational juror could find that Tremaine and Swanson-Russell
performed equal work in jobs requiring equal skill and responsibility. See Younts v.
Fremont Cty., 370 F.3d 748, 753 (8th Cir. 2004) (affirming summary judgment on
plaintiff’s EPA claim based on insufficient evidence comparing the plaintiff’s job to a
male comparator’s job).
B. Shannon Mcgree
Tremaine also failed to establish a prima facie case with respect to any alleged
disparity between his pay and McGree’s pay because he provided no evidence that
shows McGree was paid more than he was paid. Although Tremaine’s base salary as
Facilities Director was greater than McGree’s base salary as Retail Sales Manager, 6 his
equal-pay claim appears to be based on additional pay McGree received under the
Retail Management Bonus Program. It is undisputed McGree received monthly and
quarterly retail bonuses in addition to her base salary, but Tremaine provided no
statement of fact or citation to any evidence regarding the specific number of bonuses

5

Although the job listing for the Facilities Management position stated that “[i]n lieu of Bachelor’s
degree, Goodwill will accept a related Associate’s Degree plus five years of relevant work experience[,]”
Tremaine was not required to have an associate’s degree or any other post-secondary education. ECF
No. 41-2, Page ID 330-31. The job listing for Facilities Director preferred an associate’s degree in a
related field. ECF No. 41-2, Page ID 337.
6

Goodwill promoted Tremaine from Facilities Manager to Facilities Director on February 17,
2014, at an annual salary of $71,150. At that time, McGree had been Retail Sales Director since
September 17, 2011, and was being paid an annual salary of $70,165. On September 17, 2014,
McGree’s salary was raised to $72,275, and on October 17, 2014, Tremaine’s salary was raised to
$73,300. Thus, Tremaine was paid a higher base salary than McGree for all but one month of his tenure
as Facilities Director.

9

she received or the amount of those bonuses.

He made only a general,

unsubstantiated claim that McGree was paid “more than $125,000” as Retail Sales
Director. Pl.’s Br., ECF No. 44, Page ID 657. This Court’s local rules and Fed. R. Civ.
P. 56 require that parties “cite to specific portions of the record to support” their
arguments, and because Tremaine has failed to do so, he cannot establish the first
element of a prima facie EPA claim. Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 759
(8th Cir. 2015) (citing Tolen v. Ashcroft, 377 F.3d 879, 883 n.3 (8th Cir. 2004)); see also
NECivR. 56.1(b)(1).
Even if Tremaine had substantiated this factual assertion with evidence, no
rational juror could find that he and McGree performed equal work in jobs that required
equal skill and responsibility. McGree was responsible for the revenue generated at
seventeen Goodwill stores as well as the expenses and ultimate financial viability of
each store. She also supervised over 200 retail employees. There is no evidence that
Tremaine’s job, as performed, included equal financial or supervisory responsibilities.
Nor is there evidence that his job required the skills associated with maintaining the
financial viability of seventeen retail stores.
Further, Goodwill’s Retail Management Bonus Program is based on merit and
“measures earnings by quantity or quality of production.” 29 U.S.C. § 206(d)(1); see
also Goodwill Industries Bonus Programs, ECF No. 41-11(providing bonus incentives
for achieving specific, pre-set goals); Hoover v. Neb. ex rel. Neb. Dep’t of Admin.
Servs., No. 4:12CV3197, 2013 WL 5308294, *at 9 (D. Neb. Sept. 19, 2013). As the
Facilities Director, Tremaine was not eligible for this particular bonus program and there

10

is no evidence that he was qualified to work in retail. Thus, Goodwill has an affirmative
defense to Tremaine’s unequal-pay claim based on McGree’s compensation.
Accordingly, Tremaine’s claims under the EPA and the EPAN will be dismissed.
II. Sex Discrimination Claims
It is unlawful, under Title VII, for an employer to “discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation . . .
because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2. The NFEPA is patterned
after Title VII. 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 (1993)). Tremaine claims
Goodwill violated Title VII by intentionally paying him less than Swanson-Russell and
McGree, and by terminating him because of his sex.
A. Wage Discrimination
Because Tremaine failed to establish a prima facie case under the EPA,
summary judgment is also appropriate on his sex-based, intentional wage discrimination
claims under Title VII and the NFEPA. Price v. N. States Power Co., 664 F.3d 1186,
1191 (8th Cir. 2011) (citing Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003)); see also
Davis v. Crescent Elec. Supply, Co., 200 F. Supp. 3d 875, 883 (D. Minn. 2016).
B. Discriminatory Discharge
Tremaine also failed to establish a prima facie case of reverse sex discrimination
because there is no evidence that Goodwill is the unusual employer that discriminates
against men, and because there is no evidence that supports an inference of
discrimination on the basis of sex.

11

There is no direct evidence of sex discrimination in connection with Tremaine’s
termination. Absent direct evidence, courts “evaluate[ ] a plaintiff’s discrimination claim
under the McDonnell Douglas burden-shifting framework.” Moody v. Vozel, 771 F.3d
1093, 1097 (8th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
801-04 (1973)). That framework requires the plaintiff first to establish a prima facie
case with respect to his or her claim. Bunch v. Univ. of Ark. Bd. or Trs., 863 F.3d 1062,
1068 (8th Cir. 2017) (quoting Moody, 771 F.3d at 1096). “If the plaintiff satisfies the
prima facie case, the burden shifts to the employer to provide a ‘legitimate, nondiscriminatory justification for its adverse employment action.’” Id. “If the employer
meets this burden, the plaintiff must ‘prove the employer’s justification is a mere pretext
for discrimination.’” Id.
“To establish a prima facie case of sex discrimination, [a plaintiff] must show she:
‘(1) is a member of a protected class; (2) was meeting her employer’s legitimate job
expectations; (3) suffered an adverse employment action; and (4) was treated differently
than similarly situated employees who were not members of her protected class.’”
Rebouche v. Deere & Co., 786 F.3d 1083, 1087 (8th Cir. 2015) (quoting Jackman v.
Fifth Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013)). Because
Tremaine’s claim is one for reverse discrimination, he “must also show that ‘background
circumstances support the suspicion that [Goodwill] is that unusual employer who
discriminates against the majority.’” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d
899, 903 (8th Cir. 2015) (quoting Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir.
2004)); see also Moody, 771 F.3d at 1097. Tremaine can “show suspicious background
circumstances by showing evidence that [Goodwill] is inclined to discriminate invidiously
12

against males or something ‘fishy’ about the facts that raises an inference of
discrimination.” Wood v. Perry, 375 F.3d 671, 674 (8th Cir. 2004), abrogated on other
grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011).
Tremaine claims Goodwill is the unusual employer that discriminates against
men because three female employees regularly received bonuses pursuant to
Goodwill’s established bonus program for retail employees; thus, Goodwill’s payment
structure prioritized women.

Tremaine has provided no evidence to support this

argument, and the Court cannot infer that Goodwill discriminated against men based on
the fact that it paid three women retail bonuses.

There is no evidence that retail

bonuses were influenced by sex or reserved for women. Thus, Tremaine has presented
no background circumstances which support a suspicion that Goodwill is the unusual
employer that discriminates against men.
Nor is there any evidence Tremaine suffered disparate treatment that would give
rise to an inference of sex discrimination. Tremaine contends he was treated less
favorably than a female employee, McGree, because he was terminated for regularly
making personal use of company tools, but she was not terminated for asking Tremaine
and Karnes to help install a dishwasher at her home, although they used a company
van and tools to complete the installation. This argument fails to demonstrate disparate
treatment. Neither McGree nor Tremaine was reprimanded for the dishwasher
installation; it was not cited as a reason for Tremaine’s eventual termination; and there
is no evidence that McGree kept company equipment or tools in her possession for
extended periods of time without permission. As such, they were treated the same with
respect to the dishwasher installation, and Tremaine was terminated for separate
13

misconduct that McGree never committed.

Moreover, the van and the tools were

returned after the dishwasher installation and Tremaine provided no evidence that
McGree asked or instructed him and Karnes to use Goodwill equipment. No inference
of sex discrimination can be drawn from this evidence, and Tremaine has failed to
present a prima facie case.
Tremaine also asserts that other male employees made personal use of
company tools and the practice was widespread among Goodwill’s workforce.
Tremaine may believe this suggests his termination was unfair, but it provides no
evidence to support an inference of intentional sex discrimination. Rooney v. RockTenn Converting Co., 878 F.3d 1111, 1118 (8th Cir. 2018) (“[A] federal court is not a
super-personnel department with authority to review the wisdom or fairness of business
judgments made by employers.”).
There is also no evidence that Goodwill’s articulated reason for his termination
was a pretext for sex discrimination.

Goodwill maintains it terminated Tremaine

because he regularly took company tools and equipment home for his own personal use
in violation of company policies. Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 995
(8th Cir. 2011) (stating “violations of company policy are legitimate, nondiscriminatory
reasons for termination”); see also Policy, ECF No. 41-2, Page ID 348-49. To show
pretext, Tremaine argues that McGree and other male employees also made personal
use of company tools and equipment without consequence.
“A plaintiff may show pretext, among other ways, by showing that an employer . .
. treated similarly-situated employees in a disparate manner . . . .” Edwards v. Hiland
Roberts Dairy, Co., 860 F.3d 1121, 1125-26 (8th Cir. 2017) (quoting Schaffhauser, 794
14

F.3d at 904). “At the pretext stage, the test for whether someone is sufficiently similarly
situated, as to be of use for comparison, is rigorous.”

Edwards, 860 F.3d at 1126

(quoting Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir.
2014)). The employees used for comparison must be “similarly situated in all relevant
respects.” Id. They also “must have dealt with the same supervisor, have been subject
to the same standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances.” Id.
There is no evidence that McGree, or any other employee, engaged in the same
conduct as Tremaine without any mitigating or distinguishing circumstances. Tremaine
took company tools home on multiple occasions, without permission. Tremaine Depo.,
ECF No. 42-2, Page ID 306-07, 352.

When human resources interviewed him

regarding his personal use of company equipment, he had been in possession of a
compressor for at least two months and another employee reported that Tremaine
instructed him to repurchase tools that Tremaine had in his possession. Id. It was
reasonable for Parks to conclude that Tremaine took some tools with no intention of
returning them.

There is no evidence Parks had knowledge of any other Goodwill

employee who engaged in this type of conduct and failed to terminate him or her.
Accordingly, Tremaine’s claims under Title VII and the NFEPA will be dismissed.
III. Age Discrimination Claims
The ADEA makes it unlawful for an employer to “discharge . . . or otherwise
discriminate against any individual with respect to his compensation . . . because of
such individual’s age.” 29 U.S.C. § 623(a). The NADEA “is interpreted in conformity
with the ADEA.” Shultz v. Windstream Commc’ns, Inc., 600 F.3d 948, 954 (8th Cir.
15

2010) (citing Humphrey v. Neb. Pub. Power Dist., 503 N.W.2d 211, 217 (Neb. 1993)).
“A plaintiff may establish her claim of intentional age discrimination through either direct
evidence or indirect evidence.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d
507, 515 (8th Cir. 2011) (quoting King v. United States, 553 F.3d 1156, 1160 (8th Cir.
2009)). Tremaine has presented no direct evidence of age discrimination; thus, the
McDonnell Douglas framework is applicable. Onyiah v. St. Cloud State Univ., 684 F.3d
711, 719 (8th Cir. 2012).
A. Wage Discrimination
To establish a prima facie case of age-based wage discrimination, Tremaine
must show: “(1) he is over 40; (2) he was qualified for the position; (3) he suffered an
adverse employment action; and (4) substantially younger, similarly situated employees
were treated more favorably.” Onyiah, 684 F.3d at 719 (citing Anderson v. Durham D &
M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010)). “At all times, [Tremaine] retains the
ultimate burden of persuasion that ‘age was the “but-for” cause’ of his lesser salary.”
Onyiah, 684 F.3d at 719 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009)).
Other than identifying Swanson-Russell and McGree as younger employees who
were paid more than he was paid, Tremaine provided no evidence to support an
inference that his age was the but-for cause of Goodwill’s decision to pay him less. See
Onyiah, 684 F.3d at 719 (“[Plaintiff] does not identify any evidence that supports an
inference that age was the ‘but for’ cause of his salary, beyond pointing to younger
[employees] who are paid more.”). On the day he was terminated, Tremaine was fortyeight years old, Swanson-Russell was thirty-five, and McGree was thirty-eight. As the
16

Court previously noted, Tremaine performed fundamentally different job functions than
Swanson-Russell and McGree, with substantially different skill, responsibility, and
education requirements. Thus, the fact that he was paid less than they were paid does
not, by itself, permit the inference that but for his age Tremaine would have been paid a
higher wage. Further, Tremaine made no effort to demonstrate that Goodwill’s reasons
for paying Swanson-Russell and McGree higher wages—they performed different jobs
requiring greater responsibility, education, and skill—was a pretext for intentional age
discrimination. Accordingly, his wage discrimination claims under the ADEA and the
NADEA will be dismissed.
B. Discriminatory Discharge
“A prima facie age-discrimination claim under the ADEA requires that the plaintiff
show (1) she ‘was at least 40 years old; (2) was qualified to perform her job; (3) was
terminated; and (4) was replaced by another person sufficiently younger to permit the
inference of age discrimination.’” Olsen v. Capital Region Med. Ctr., 713 F.3d 1149,
1159 (8th Cir. 2013); see also Hilde v. City of Eveleth, 777 F.3d 998, 1004 (8th Cir.
2015). Ultimately, age must have been “the but-for cause of the employment decision.”
Hilde, 777 F.3d at 1003 (citing Gross, 557 U.S. at 176).
After his termination, Tremaine’s job responsibilities were assumed by two older
Goodwill employees, Karnes and Caniglia.

As such, Goodwill contends Tremaine’s

age-based discriminatory discharge claim must be dismissed as a matter of law. See
Holmes v. Trinity Health, 729 F.3d 817, 822 (8th Cir. 2013) (finding the plaintiff failed to
establish a prima facie case of age discrimination where a specific individual “assumed
almost all of [the plaintiff’s] job functions”). Citing a case which did not address the
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ADEA at all, Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir.
1984), Tremaine argues that to establish a prima facie case he only has to show
disparate treatment between himself and a younger, similarly situated Goodwill
employee.

To show disparate treatment, he again argues that McGree was not

terminated for asking Tremaine and another male employee to install a dishwasher at
her home.
Tremaine failed to establish a prima facie case because he produced no
evidence that he was replaced by someone younger; or that younger Goodwill
employees engaged in substantially similar misconduct without termination, or that age
played any role in Parks’s decision to terminate him.

Tremaine also has failed to

demonstrate that the explanation for his termination was a mere pretext for intentional
age discrimination. As the Court previously explained, there is no evidence that another
employee “dealt with the same supervisor, [was] subject to the same standards, and
engaged in the same conduct without any mitigating or distinguishing circumstances.”
Id. Tremaine’s claims for discriminatory discharge under the ADEA and the NADEA
will, therefore, be dismissed.
Accordingly,
IT IS ORDERED:
1.

The Motion for Summary Judgment, ECF No. 38, filed by Defendant
Goodwill Industries, Inc., is granted;

2.

This action is dismissed, with prejudice;

3.

A separate judgement will be entered.

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Dated this 31st day of May, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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