Newell v. McHugh et al
OPINION AND ORDER granting 34 Motion for Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 10/24/2017. (JLS)
UNITED STATES DISTRICT COURT
OCT 2 4 20(7
DISTRICT OF SOUTH DAKOTA
JOHN N. NEWELL,
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY
ROBERT M. SPEER, ACTING SECRETARY OF
THE ARMY; AND THE UNITED STATES ARMY
CORPS OF ENGINEERS, AGENCY,
Plaintiff John Newell (Newell) sued his employer, the United States Army Corps of Engineers
and John McHugh,' the Secretary of the Army (collectively the Corps) alleging claims of race
discrimination, disparate treatment, retaliation, and hostile work environment under Title VII. Doc. I?
Newell had filed a prior suit against the Corps with similar allegations based on different factual
circumstances. Doc. 1, CIV 14-3005-RAL. This Court consolidated the two cases on Newell's motion.
Doc. 8; Doc. 19, CIV 14-3005-RAL. Newell seeks compensatory damages and all damages allowed under
Title Vn, as well as costs and disbursements. Doc. 1 at 5; Doc. 1 at 9, CIV 14-3005-RAL. The Corps
moved for summary judgment on all claims. Doc. 18, which Newell opposed. Doc. 26. This Court in a
previous opinion and order granted the Corps' motion for summary judgment on aU claims except the
hostile work environment and constructive discharge claims, deferring consideration of those issues until
Newell's pending Equal Employment Opportunity (EEC) claims had been resolved and a Final Agency
Decision (FAD) from the Department of the Army had been issued. Doc. 33. The Department of the
'Pursuant to Fed. R. Civ. P. 25(d), a public officer's successor is automatically substituted as a party.
Robert M. Speer became the Acting Secretary of the Army on January 20, 2017.
^ This Court uses Doc. followed by a number to refer to the document number of pleadings filed in the
Case Management/Electric Case Filing System in this case, CIV 15-3006-RAL. When referring to a
document number in Newell's other case, the case number CIV 14-3005-RAL will be specified.
Army issued a FAD resolving Newell's outstanding EEO claims on January 17, 2017. Doc. 41-1. The
Corps moved for summary judgment on the remaining claims, Doe. 34, and Newell opposed that motion.
Doe. 46. For the reasons explained below, this Court grants the Corps' motion for summary judgment on
all remaining claims.
Facts Not Subject to Genuine Dispute^
Under Local Rule 56.1, Defendants filed a Statement of Undisputed Material Facts. Doc. 20.
Newell appropriately responded by filing Plaintiffs Statement of Undisputed Material Facts, Doc. 24, and
Plaintiffs Statement of Disputed Material Facts, Doe. 25. After filing their most recent motion for
summary judgment. Defendants filed a Supplemental Statement of Undisputed Material Facts, Doc. 36.
Newell responded by filing Plaintiffs Second Responsive Statement of Material Facts, Doc. 45. This
Court takes the facts in the light most favorable to Newell, as the non-moving party, and draws the facts
primarily from the undisputed portion of Defendants' Statement of Undisputed Facts and Supplemental
Statement of Undisputed Facts, Plaintiffs Statement of Undisputed Material Facts where supported by
the record. Plaintiffs Statement of Disputed Material Facts where supported by the record, and Plaintiffs
Second Responsive Statement of Material Facts where supported by the record. Does. 20, 24, 25, 36, 45.
The facts in tliis section are not subject to genuine dispute. This Opinion and Order incorporates
additional facts and some matters that Newell considers to be true, but which the Corps appears to
contest, in discussing Newell's arguments.
Newell is an African American male who has previously served in the United States Army.
Doc. 25 at Tin 2-3. Newell is the only African American employee of the Corps in the region where he
works; there is an admitted lack of diversity in employees at the Corps' Oahe Project. Doc. 24 at
36; Doc. 31 at Tit 35-36. Prior to his initial hiring at the Corps, Newell had worked for the United States
Post Office, where he was in a supervisory position for a period oftime. Doc. 20 at 16; Doc. 25 atf 6.
^ Because Newell's hostile work environment claim requires an evaluation of the totality of his work
environment, much of this section is lifted fi-om the Court's previous order granting the Corps' motion for
summary judgement. Doc. 33. This section has been supplemented to include additional facts regarding
the allegations addressed in this Opinion and Order.
In November 2005, Newell was hired as a Power Plant Electronics Mechanic Trainee m at the
Oahe Project in Pierre, South Dakota. Doc. 20 at 130; Doc. 25 at 30. The Corps runs the Oahe Project,
which is one of six main stem dam projects in the upper Missouri River Basin that produce hydroelectric
power. Doc. 20 at Tf 27; Doc. 25 at I 27. The Corps provides an on-the-job trainee program through
classroom training and correspondence courses, and Newell also trained with Electronic Mechanics at two
of the Corps' other dam projects, the Garrison and Big Bend Projects. Doc. 20 at 31; Doc. 25 at ^ 31.
Rick Bartels (Bartels) was assigned to mentor Newell in his on-the-job training program; when Bartels
was promoted from Power Plant Mechanic to Power Plant Operations and Maintenance (O & M)
Supervisor, Bartels became Newell's direct line supervisor and continued to mentor Newell. Doc. 20 at
132; Doc. 25 at ^ 32. Newell's second line supervisor was John Bartel (Bartel), the Oahe Dam Project
Manager. Doc. 20 at ^ 33; Doc. 25 at 33. Upon Bartel's retirement, Eric Stasch (Stasch), an Oahe
Project engineer, was selected as Oahe Dam Project Manager. Doc. 20 at ]f 33; Doc. 25 at ^ 33. Jeffrey
McCown(McCown) was hired as a Power Plant Mechanic in February 2006. Doc. 20 at t 34; Doc. 25 at
^ 34. Michael Magner (Magner) was hired as a Power Plant Electronics Mechanic and assigned to work
with Newell in July 2006. Doe. 20 at ^ 35; Doc. 25 at ^ 35. In November 2006, Newell was promoted to
Power Plant Electronics Mechanic Trainee IV. Doc. 25 at ^ 36; Doc. 20 at 136.
In April 2007, Newell reported to Bartels inappropriate lunchroom talk among his co-workers.
Doc. 20 at I 37; Doc. 25 at f 37. Bartels then spoke to shop employees about stopping all inappropriate
language in the workplace and showed a training video, produced by the EEO Commission(EEOC),to all
shop employees about the Corps' anti-discrimination policies. Doc. 20 at
37-39; Doc. 25 at
In 2007, Newell and McCown applied for the Corps' Leadership Development Program, designed
to develop leadership and management skills as distinct from other technical trainings; McCown was
selected to participate in the program and successfully completed it. Doc. 24 at ^ 37-38; Doc. 25 at
T|40; Doc. 31 at m 37-38.
On July 23, 2007, Newell reported to Bartels a second incident of offensive lunchroom talk
concerning race. Doc. 20 at
41; Doc. 25 at ^ 41. Bartels informed Bartel, and Bartel verbally
reprimanded two employees involved, Magner and MeCown, and made a written record of the incident.
Doc. 20 at f 42; Doc. 25 at
42. On September 6, 2007, Newell filed a formal complaint of race
discrimination regarding this issue with the EEOC. Doc. 21-8. In 2010, Newell and the Corps entered
into a settlement agreement regarding his complaint, imder which Newell received benefits and agreed to
"waive his'right to pursue . . . judicial action . . . concerning the matters raised in this complaint."
Doc. 21-11 at 2. As part of the settlement, Newell also agreed to withdraw "any other EEC complaints of
reprisal filed prior to the date of this agreement," which was March 10, 2010. Doc. 21-11 at 2.
In 2010, Bartels retired from the position of O & M Supervisor, and Newell applied for this
position. Doc. 20 at
55-56; Doc. 25 at
55-56. Newell was not hired for this position, and did not
file a complaint with the EEOC alleging racial discrimination or retaliation in the hiring process. Doc. 20
at UTf 57-58; Doc. 25 at
In March 2011, an Assistant O & M position was advertised, and Newell applied for this position.
Doc. 20 at
59-61; Doc. 25 at
59-61. Newell made the initial list of applicants, and was then part of
the list of six applicants whose qualifications were rated on a defmed matrix. Doc. 20 at
Doc. 25 at m 61-62. The applicants for this position were rated by Stasch, the lead hiring official;
Richard Spiger (Spiger), the O & M Supervisor at the Oahe Project; and Thomas Curran (Curran), the
Operations Project Manager from the Ft. Randall Dam Project, an individual who had no knowledge of
Newell, including no awareness of his race or prior EEC activity. Doc. 20 at
61-64; Doc. 25 at
64. Newell was ranked fifth of the six applicants by Stasch; fifth by Curran; and fourth by Spiger.'*
Doc. 20 at
62-64; Doc. 25 at
62-64. Because he was not one ofthe top three individuals ranked, he
did not receive an interview and was not hired for the position. Doc. 20 at
65-67; Doc. 25 at
McCown instead was hired for the Assistant O & M position. Doe. 20 at If 67; Doc. 25 at 67. Newell
'* Newell claims that Spiger's inclusion on the hiring committee was improper because Spiger is a
personal friend of McCown. Doc. 24 at 57-58; Doc. 31 at 57-58. However, Spiger ranked Newell
higher than did the other two members of the committee. Newell does not criticize the other two choices
for the hiring committee.
filed an EEO charge regarding this issue, alleging he was denied an interview because of race
discrimination and reprisal for previous EEO activity. Doc. 20 at ^ 68; Doc. 25 at ^ 68.
After a visit to the Oahe Project from an Industrial Hygienist, in October 2011, Newell's
workspace was relocated into a space shared with Magner. Doc. 20 at ^ 72; Doe. 25 at ^ 72. Shortly
after, Spiger directed Newell and Magner to report daily to McCown to discuss the day's work
assignments in an effort to increase productivity at the Oahe Project. Doc. 20 at 73; Doc. 25 at
Newell at this point requested that he be trained to fill in for Spiger when Spiger was away from the Oahe
Project. Doe. 20 at T| 74; Doc. 25 at f 74. Spiger denied this request because McCown was aheady
trained and responsible for filling in for Spiger when Spiger was away. Doc. 20 at ^ 74; Doc. 25 at 74.
For the period of February 2, 2011 to January 31, 2012, Newell received a performance rating of
3 (Successful), which did not entitle him to receive a cash bonus performance award. Doc. 20 at 92;
Doc. 25 at^ 92. Newell filed a claim with the EEOC alleging racial discrimination for this performance
rating. Doc. 20 at 93; Doc. 25 at f 93. In 2014, the Army issued an FAD finding that there was no
evidence of discrhninatory animus in the performance rating. Doc. 20 at
100-01; Doc. 25 at
On April 18, 2013, Staseh issued Newell a formal Letter of Reprimand for discussing the
performance ratings of employees obtained through Newell's participating in prior EEO activity. Doc. 20
at 1102; Doc. 25 at ^ 102; Doc. 21-29 at 4-5. After a claim to the EEOC,the Administrative Law Judge
(ALJ)found that this reprimand letter(as opposed to a verbal reprimand) constituted retaliatory discipline
for Newell's prior EEO activity and required the reprimand letter be removed from Newell's file,
compensatory damages be paid to Newell, and training be provided at the Oahe Project; the Army
concurred in this finding with an FAD. Doe. 20 at
105-07; Doc. 25 at Tfll 105-07. Staseh did as
instructed and gave Newell a verbal reprimand for the conduct rather than the formal Letter of
Reprimand. Doe. 27-4 at 91. Also, in 2013, Newell was disciplined for being absent without leave
(AWOL)from his position because he did not adhere to the Corps' written policy on leave time request.
Doc. 20 at I 90; Doc. 25 at 90. Newell did not object to this discipline, nor did he file an EEO claim
regarding the instance. Doc. 20 at 1116; Doc. 25 at 116.
Newell made another complaint to the EEOC after McCown made comments during a weekly,
safety meeting that a Comprehensive Facility Review Team would be arriving and used language
involving burning crucifixes and hangings^ to indicate the severity and thoroughness of the group's
review. Doc. 20 at
108-111; Doc. 25 at
108-111. The complaint was dismissed for failure to state
a claim, because the statement did not constitute unlawful employment practice and Newell did not show
any personal harm or loss of employment privileges or conditions because of the statement. Doc. 20 at
^ 112; Doc. 21-35 (text ofFAD dismissing complaint); Doc. 25 at 1112.
In the Summer of 2013, a memo was circulated indicating that only one electronics mechanic
position would be needed, but to avoid a Reduction in Force (RIF), one of the electronics mechanics
would be assigned on a two-month shift to either the electric or mechanics shop. Doc. 24 at T] 117;
Doc. 25 at ^ 142; Doc. 28-1; Doc. 31 at
117. At this point, for various reasons, Bartels and Spiger told
Magner not to share all of his information about the electronics mechanic position with Newell. Doc. 24
at HI 118-27; Doc. 31 at H 118-27.
In June 2014, Newell was issued a Notice of Proposed Suspension for failure to properly inspect
plant safety equipment and for discrepancies in recording time in the Oahe Project's work order system.
Doc. 20 at f 127; Doc. 24 at If 100; Doc. 25 at T| 127. Newell filed a elaim with the EEOC that this
proposed suspension constituted racial discrimination, reprisal, and a hostile work environment. Doc. 20
at ^ 128; Doc. 25 at 128. Stasch ultimately issued Newell a seven-day suspension for this conduct.
Doc. 20 at I 130; Doc. 25 at 130. Newell filed another EEO claim regarding this final suspension,
which was consolidated with the first. Doc. 20 at flf 131-32; Doc. 25 at
131-32. The Army issued a
FAD upholding NeweU's suspension on January 17, 2017. Doc. 36 at
145, 148; Doc. 45 at Tft 145,
148; Doc.41-1 (text ofFAD upholding suspension).
^ The full statement, according to Newell, is "The outside investigation group will be comin' into the gate
and they will be bringin' crucifixes and someone's gorm' be hung." Doc. 25 at ^ 108; Doc. 20 at ][ 108.
Colonel Cross, the commander of the Omaha District, flew to Pierre in the Summer of 2014 to
meet with Stasch and Spiger about Newell's EEC complaints. Doc. 24 at 95. Newell was not able to
meet with Colonel Cross during that visit. Doc. 24 at ^ 96.
In August 2014, Newell requested to be trained for an Operator position and received approval
for that training. Doc. 36 at 1151; Doc. 45 at 1151. Newell completed this training and was promoted to
a full-time Power Plant Shift Operator position on October 2, 2016. Doc. 36 at 1[*[f 154-155; Doc. 45 at
TfTf 154-155. Power Plant Shift Operators are the highest paid nonsupervisory position at the Oahe
Project. Doc. 36 at 1153; Doc. 45 at 1153.
Newell believes that he is treated differently than other Corps employees of the Oahe Project and
that he is subject to what he calls the "Newell Rules." Doc. 24 at 93. Magner indeed believes that the
Corps would like to get rid of Newell, not because of Newell's race, but because of his repeated EEO
filings. Doc. 24 at ^ 140. Stasch reports that Spiger has expressed frustration with the Corps paying
Newell so that Newell can sue the Corps, although Spiger denies making such a statement. Doc. 24 at
1162. The January 2017 FAD found this statement did not constitute discriminatory harassment.
Doc. 36 at T| 150; Doc.45 at Tf 150.
Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when
"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." On summary judgment, the evidence is "viewed in the light most favorable
to the nonmoving party." True v. Nebraska. 612 F.3d 676, 679 (8th Cir. 2010) (quoting Cordrv v.
Vanderbilt Mortg. & Fin.. Inc.. 445 F.3d 1106, 1109(8th Cir. 2006)). There is a genuine issue of material
fact if a "reasonable jury [could] return a verdict, for either party" on a-particular issue. Maver v.
Countrywide Home Loans. 647 F.3d 789, 791 (8th Cir. 2011). A party opposing a properly made and
supported motion for summary judgment must cite to particular materials in the record supporting the
assertion that a fact is generally disputed. Fed. R. Civ. P. 56(e)(1); Gacek v. Owens & Minor Distrib..
Inc.. 666 F.3d 1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by specific facts or evidence
beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary
judgment." Thomas v. Corwin. 483 F.3d 516, 527 (8th Cir. 2007); s^ also Reasonover v. St. Louis Ctv.
Mo.. 447 F.3d 569, 578 (8th Cir. 2006) ("Evidence, not contentions, avoids summary judgment.")
(internal quotations and citation omitted). Summary judgment is not "a disfavored procedural shortcut,
but rather . . . an integral part of the Federal rules as a whole, which are designed 'to secure the just,
speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett 477 U.S. 317, 327
(1986) (quoting Fed. R. Civ. P. 1). Cases alleging discrimination are subject to the same summary
judgment standard as any other case. Torgerson v. Citv of Rochester. 643 F.3d 1031, 1043 (8th Cir.
Newell argues that the Corps violated Title Vn of the Civil Rights Act of 1964 by engaging in
racial discrimination and retaliating against him for protected activities. Doc. 1 at 4-5; Doc. 1 at 6-8,
CrV 14-3005-RAL. Title Vn prohibits an employer from discriminating against employees with respect
to their "compensation, terms, conditions, or privileges of employment, because of . . . race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). An employer is also prohibited from
retaliating against an employee because the employee "opposed any practice made an unlawful
employment practice by" the provisions of Title VH. Id § 2000e-3(a). Newell can establish his Title VU
race-based discrimination claims through direct evidence, or in the absence of direct evidence, through
the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green. 411 U.S. 792,
802(1973). Newell does not point to direct evidence of racial discrimination, but makes arguments using
the McDonnell Douglas framework. See Doc. 26 at 3. In order for Newell's claims to survive a summary
judgment motion, the MeDonnell Douglas framework requires that Newell demonstrate a prima facie case
of race discrimination. Maeklin v. FMC Transp.. Inc.. 815 F.3d 425,427-28 (8th Cir. 2016); Erenberg v.
Methodist Hosp.. 357 F.3d 787, 792-93 (8th Cir. 2004). If Newell establishes a prima facie case of race
discrimination, the burden shifts to the Corps to show a legitimate, nondiscriminatory reason for the
adverse action of which Newell complains. St. Marv's Honor Ctr. v. Hicks. 509 U.S. 502, 506-07
(1993). If the Corps is able to do so, the burden shifts back to NeweU to establish that the "legitimate
reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves
V. Sanderson Plumbing Prods.. 530 U.S. 133, 143(2000)(quoting Tx. Dep't of Cmtv. Affairs v. Rurdine.
450 U.S. 248, 253 (1981)). Despite the burden-shifting nature of the McDoimell Douglas framework, the
ultimate burden of proving unlawful discrimination remains with Newell. St. Marv's Honor Ctr.. 509
U.S. at 507.
A. Hostile Work Environment
As a portion of his race discrimination claim, Newell claims that the Corps has long subjected
him to a hostile work environment. Doe. 1. at 46, CIV 14-3005-RAL; Doc. 1 at 33. To establish this
claim, Newell must prove that "(1) he is a member of a protected group; (2) he was subject to
unwelcome race-based harassment; (3) the harassment was because of membership hi the protected
group; and (4) the harassment affected a term, condition, or privilege of employment." Clav v. Credit
Bureau Enters.. Inc.. 754 F.3d 535, 540 (8th Cir. 2014)(quoting Malone v. Ameren UE. 646 F.3d 512,
517 (2011)). The Corps can be liable for harassment by Newell's non-supervisory co-workers only if it
"knew or should have known of the harassment and failed to take proper ^-emedial action." Tatum. 408
F.3d at 550. In order to establish the fourth element, Newell must show that the harassment was
"sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive
working environment." Clav. 754 F.3d at 540(quoting Malone. 646 F.3d at 517). This requires a finding
that the environment was both one that "a reasonable person would find hostile and one that the victim
actually perceived as abusive." Duncan v. Gen. Motors Corp.. 300 F.3d 928, 934 (8th Cir. 2002). In
determining whether a workplace is objectively hostile, courts must consider "all the circumstances,
including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or
humiliating or a mere offensive utterance and whether the conduct umeasonably interfered with the
employee's work performance." Singletarv v. Mo. Dep't of Corr.. 423 F.3d 886, 892-93 (8th Cir. 2005).
"No single factor is required," and it "is not, and by its nature cannot be, a mathematically precise test."
Harris v. Forklift Svs.. Inc.. 510 U.S. 17, 22-23(1993).
In the previous order granting the Defendants' motion for summary judgment, this Court
indicated that none of the Corps' actions presented by Newell which were reviewable at that time rose to
the level of race discrimination or retaliation when viewed separately. Doe. 33 at 22. To properly
evaluate Newell's hostile work environment claim this Court considers the totality of the work
environment including matters previously ruled upon and matters not previously considered because of
the EEO claims that were pending. Doc. 33 at 22. Although not every allegation made by Newell was
the subject of an EEO complaint,® for purposes of evaluating a hostile work environment claim this Court
can consider claims which were not filed as part of an EEO complaint as long as Newell put the Corps on
notice of those claims. ^ Cottrill v. MFA. Inc.. 443 F.3d 629, 635 (8th Cir. 2006) (finding
administrative remedies had been exhausted on a hostile work environment sexual harassment claim even
when additional evidence was provided beyond that formally noted in an EEO complaint because "the
charged party was not deprived of notice of the charge"). The Corps has been put on notice ofthe various
charges that Newell alleges created a hostile work environment, so this Court may consider incidents not
included in Newell's EEO complaints for purposes of determining whether a hostile work environment
NeweU's hostile work environment claim weaves together events spread out over a decade. In
examining NewelTs claim in a holistic way, his allegations fall into two primary categories of conduct.
The first category is an offensive culture that existed at the Oahe Project that Newell eharaeterizes as a
pervasive "good old boy" custom of making offensive remarks based on race, ethnicity, gender and
religion. Doc. 46 at 9. The second category of conduct is described by Newell as his supervisors'
willingness to misuse their power to impact the terms of his employment. Doc. 46 at 12. The conduct
which falls within each of these categories, when viewed in totality, does not give rise to a viable hostile
work environment claim.
® In particular, the events regarding the potential RIF and the comments to Magner not to share
information with Newell, which he alleges are evidence of an effort to sabotage his career. Doc . 46 at 16,
were not part of any EEO complaint filed by Newell.
1. Good Old Boys Environment
From the undisputed facts submitted to this Court and detailed in Part I of this opinion, Newell
reported three instances of inappropriate language: the first lunchroom conunents made in April of 2007,
the lunchroom comments made by Magner and McCown in July of 2007, and McCown's comments
about burning crosses at a safety meeting in July of 2013.^ When Newell reported the first lunchroom
comments to his supervisor, that supervisor conducted a talk with the shop employees about inappropriate
language in the workplace and had them watch a video produced by the EEOC. After reporting the
second lunchrooih comments, Magner and McCown received a verbal reprimand and the incident was
documented. Newell also filed an EEO complaint after this second incident and eventually entered into a
settlement with the Corps.^ After McCown's comments at the safety meeting, Newell again filed an EEO
complaint which was subsequently dismissed by the EEOC for failure to state a claim.
A few occurrences of racial epithets over a course of years will not preclude summary judgment
in a hostile work environment clahn. Suigletarv. 423 F.3d at 893. "To be actionable, such conduct must
be shown to occur with such frequency that the very conditions of employment are altered and be viewed
by a reasonable person as hostile." Id The Eighth Circuit's case law demonstrates that Newell has not
met this high bar. See, e.g.. Bainbridge v. Loffredo Gardens. Inc.. 378 F.3d 756, 759-60 (8th Cir. 2004)
(finding a hostile work environment claim could not be sustained where the plaintiff, whose wife was
Japanese, alleged his supervisors made racially offensive remarks about Asians at least once a month for
^ Ofthe various comments reported by Newell in 2007, only one appeared to have been about him ("How
was it growing up in the projects; did you experience this, this and this?"). Doc. 21-9 at 2. The other
comments involved other ethnic groups such as Native Americans, Arabs, Fihpinos, people living in
Africa, and one instance of minorities in general ("Insurance keeps increasing because of minorities").
Doc. 21-9 at 2-3.
® Newell states that he complained to his supervisors about offensive racial remarks three times in 2007.
Doc. 46 at 10. This third instance appears to be a suggestion by Newell to Bartels in December of 2007
that Bartels contact the EEOC "to see if they would provide direction because the issues were not
resolved ia the workplace as far as the environment." Doc. 27-6 at 17. In response, it appears that Bartels
hung a sign in the lunchroom stating that offensive language was not to be used in the workplace.
Doc. 27-6 at 17.
Because Newell waived his right to pursue judicial action concerning the matters raised in his EEO
complaint. Doc. 21-11 at 2, it is questionable whether this Court should even consider those instances in
evaluating the hostile work envkomnent claim. However, this Court finds that even with these instances
of alleged harassment included, Newell's hostile work environment claim remains unviable.
two years); Woodland v. Joseph T. Rverson & Son. Inc.. 302 F.3d 839, 843-44 (8th Cir. 2002)(finding
that three instances where the plaintiff heard from a third party that racial epithets had been used to
describe him and two instances where the plaintiff overheard co-workers use racial epithets to describe
other Afiican American employees, in addition to other "sporadic, racially-motivated misconduct" could
not sustain a hostile work environment claim). Newell's allegations amount only to a few occurrences
taking place in 2007 and 2013, not the kind of frequent conduct that would alter the conditions of
In his brief opposing the Corps' motion for summary judgment, Newell alleges that he was
subjected to "racially tinged" harassment throughout most of his employment, and that offensive slurs
were a part of the culture at the Oahe Project. Doc. 46 at 10. Newell alleges that "[a] Corps manager
acknowledged that [sic] the 'good old boy theory' that allowed 'good old boy language' in terms of
offensive remarks about virtually every protected class of people to persisted [sic] in the Oahe Project
workplace from the time that Newell was hired until that manager's retirement in 2014." Doc. 46 at 10.
Newell's characterization of Richard Bartels's deposition testimony regarding the "good old boy" theory
is inaccurate. Bartels testified that the good old boy theory was a practice of engaging in inappropriate
behavior even when it was in violation of a rule; a practice which even Newell engaged in. Doc. 27-6 at
9. Bartels's testimony, when examined in totality, indicates there was a culture of sometimes crass
behavior which the employees at the Oahe Project took part in, not that Newell was subjected to constant
racial slurs. The contentions made by Newell in his briefing, as opposed to the facts submitted to this
Court, do not prevent summary judgment.
Reasonover. 447 F.3d at 578 ("Evidence, not contentions,
avoids summary judgment."). Newell also suggests that management had a "low level of commitment to
preventing discriminatory harassment" which was "a hallmark of the culture at the Oahe Project
workplace." Doc. 46 at 11. However, the undisputed facts submitted to this Court demonstrate that
management took action on Newell's complaints; Newell's argument in his brief about those actions
being inadequate does not constitute a genuine issue of material fact that precludes summary judgement.
2. Misuse of Power
Beyond the good old boy culture detailed above, Newell argues be "is able to offer unrefutable
[sie] evidence that bis supervisors were willing to misuse of [sic] their power to impact bis terms of
emplojmient" in response to bis EEO activity.'" Doc. 46 at 12. The first example be cites is the fact that
the other electric mechanic, Magner, was allowed the "minimally better opportunity to report to Spiger"
while Newell was forced to report to McCown, who bad been the subject of a previous EEO complaint by
Newell. Doc. 46 at 13. bi its previous order granting the Corps' motion for summary judgement in part,
this Court noted that the record demonstrates Newell and Magner were subject to the same reporting
requirements, and that Newell bad failed to make a prima facie case that this requirement was evidence of
discriminatory disparate treatment. Doc. 33 at 18-19.
NeweU next alleges that the April 2013 Letter of Reprimand issued by Stascb against Newell for
discussing the performance reviews of other employees. Doc. 21-29 at 4-5, was a misuse of bis
supervisors' power. Doc. 46 at 13. Newell contends that the Army has "officially and publicly" sided
with Newell as to the question of whether this Letter was issued in retaliation for bis EEO activities.
Doc. 46 at 14. While the Army did issue a FAD concurring with the ALJ's direction to rescind the Letter
of Reprimand, the Army also concurred with the ALJ's determination that Newell's conduct warranted
disciplinary action in the form of a verbal reprimand. Doc. 21-31 at 10, Doc. 21-32 at 1. The fact that bis
discipline was determined to be too severe does not alter the fact that Newell's conduct warranted some
discipline. The ALJ's determination that that Corps' issuance of the Letter constituted reprisal in
In arguing that bis supervisors misused tbeb power, Newell alleges that Stascb, Spiger, and McCown
all viewed Newell's EEO activity as a nuisance, and specifically points to testimony of Staseb regarding
bis thoughts on whether the EEO complaints at the Oabe Project would cease if Newell were gone.
Doc. 46 at 15. Newell's argument appears to be that Stascb's testimony is evidence that management felt
burdened by Newell's EEO activity and thus took actions against bim to punish him for bis complaints
and deter further EEO activity. But Newell miscbaraeterizes Stascb's testimony on these points. Stascb
stated that EEO complaints generate more workload for him. Doc. 27-4 at 103. This was a factual
statement made in response to a question regarding bis workload. And while Stascb testified that be bad
considered what the iinpact on EEO complaints at the Oabe Project would be if Newell left, be also stated
that Newell is entitled to take actions be feels are necessary to protect himself. Doc. 27-4 at 127.
response to Newell's EEO aetivities is of course significant, but this is the only EEO claim on which
Newell was granted any relief, and by itself does not amount to a hostile work environment.
In his briefing, Newell argues that his seven-day suspension for failing to inspect plant safety
equipment and discrepancies in recording his hours was another misuse of his supervisors' power.
Doc. 46 at 14.
He notes several specific aspects: Spiger's initial recommendation for a 30-day
suspension, Stasch's reduction of that recommendation first to 14 days and then to seven days "without
consideration of the recommended range of discipline,"'' and the timing of Stasch's fmal issuance of the
seven-day suspension.'^ Doc. 46 at 14—15. As discussed in section IV below, the suspension did not
amount to unlawful retaliation against Newell for his participation in EEO activities. Newell's conduct—
failing to properly inspect the fire extinguishers, wash stations, and first aid kits, while recording time
spent on the task—warranted some sanction. The fact that this sanction was discussed as 30 days and
then 14 days before a seven-day suspension was imposed is not evidence of racial discrimination. In his
deposition testimony, Staseh stated that he had eventually imposed a seven-day suspension because he
decided to treat this as a stand-alone offense, rather than wait to see if the Army planned to appeal the
ALJ's decision regarding the Letter of Reprimand. Doc. 27-4 at 104-105. Had the Letter of Reprimand
remained in Newell's personnel file, a heavier sanction than the seven-day suspension would have been
warranted. Doe. 27-4 at 106. Staseh ultimately decided not to wait any further for a decision from the
Army and issued the suspension without consideration of any previous disciplinary sanctions because of
his concern regarding the timeliness of imposing punishment on NeweU for conduct that took place six
" Newell appears to be referencing the fact that Staseh did not personally engage in a comparative
analysis of the disciplinary sanctions he had previously imposed on employees at the Oahe Project when
determining Newell's punishment for this particular offense. However, while Staseh may not have
conducted this analysis, he testified that he inquired with Human Resources about whether the proposed
suspension "was in line with other disciplinary actions across the district for this type of offense."
Doe. 27-4 at 107. Inquiring with Human Resources as to the appropriate level of punishment for
Newell's offense, rather than making the determination on his own, is not evidence of discrimination.
Newell alleges that Staseh issued the suspensiop one day after the Army upheld the ALJ's decision
regarding the 2013 Letter of Reprimand, and that this is evidence of Stasch's intent to humiliate Newell
and "chill interest in participating in the EEO process." Doc. 46 at 14, 22. However, Newell's contention
is incorrect. Staseh issued the seven-day suspension on January 8, 2015, Doc. 20 at 130; Doc. 25 at
^ 130, which was the day before the Army issued its FAD concurring with the ALJ's decision regarding
the Letter of Reprimand. Doc. 21-32.
months prior. Doc. 27-4 at 106. Newell ultimately received a sanction that was commensurate with his
conduct, a decision which the Army affirmed. Doe. 41-1.
Newell also argues that the site visit, to the Oahe Project by Colonel Cross, the District
Commander, gives rise to a reasonable inference that Newell's EEO complaints were considered a serious
problem for his supervisors. Doe. 46 at 15. Newell has previously indicated that Colonel Cross was
supposed to meet with Stasch, Spiger, and Newell to discuss Newell's EEO complaints, but because
Newell was unavailable Cross only heard Stasch and Spiger's perspectives. Doe. 24 at
facts belie that Colonel Cross's visit somehow supports Newell's arguments and claims. Newell emailed
Colonel Cross on July 22, 2014, and stated he was being subjected to harassment. Consequently, Colonel
Cross flew to the Oahe Project and met with leaders there to conduct an investigation, concluding that the
actions taken by leadership at the Oahe Project were not the result of retaliation. Doc. 41-1 at 11. The
only reasonable inference that can be derived from the facts presented here is that Colonel Cross takes
allegations of harassment seriously. NeweU's argument that this visit represents something more does not
provide a basis upon which to deny summary judgment.
Reasonover. 447 F.3d at 578 ("Evidence,
not contentions, avoids summary judgment.").
Newell alleges that his supervisors attempted to sabotage his career and placed the community
served by the Oahe Dam at risk by instructing Magner, the other electronics mechanic, not to share
information with Newell in anticipation of an upcoming RTF. Doc. 46 at 16; Doc. 26 at 20-21.
Evaluating whether this claim amounts to racial discrimination and retaliation is beyond this Court's
review because Newell has not filed a complaint with the EEOC regarding this matter, thus his
administrative remedies have not been exhausted. See Nat'l R.R. Passenger Corp. v. Morgan. 536 U.S.
101, 110-115 (holding that administrative exhaustion is required for each discrete instance of
discrimination or retaliation because, unlike a hostile work environment claim, they are readily
identifiable). However, this Court will consider the facts available to it regarding this allegation in
evaluating Newell's hostile work environment claim.
A memorandum was circulated indicating that the Oahe Project had more electronics mechanics
than it needed, and to prevent anyone from losing their job one of the electronics mechanics would be
reassigned to the electric shop or mechanics shop. Doc. 28-1. Both Spiger and Bartels testified that they
believed Magner was the most qualified electronics mechanic.
Doc. 27-3 at 55; Doc. 27-6 at 29.
Because of his disabled veteran status, Newell would have been retained over Magner in the event of a
RIF. Doc. 27-6 at 29. Bartels apparently told Magner not to share his knowledge regarding maintenance
of relays in an effort to reassure him that he would have a job despite the RIF. Doc. 27-6 at 29-31.
Spiger denies ever telling Magner not to share his knowledge with Newell. Doc. 27-3 at 55. Instead,
Spiger testified that in response to Magner asking him why Newell received better evaluations than he
did, Spiger explained that it was because Magner does most of the work for Newell and that he should
just do his own job, allow Newell to do his, and let the evaluations reflect "a differential shown on
knowledge." Doc. 27-3 at 54.
Newell argues in his brief that Bartels attempted to "engineer a different result" regarding the
potential RIF whereby Magner would help him undermine Newell's performance and "Magner would
become the more qualified employee." Doc.46 at 16. But Bartels already believed Magner was the more
qualified electronics mechanic. Doc. 27-6 at 29. Bartels testified that he believed Magner did not have to
train Newell on relay testing because both had been to several weeks of training for that task. Doc. 27-6
at 30. When read in context, Bartels's goal appears to have been an outcome where the Oahe Project
would have had Magner continue doing the relay testing while working in a different shop, the skiU about
which Bartels apparently told Magner not to share information with Newell, and Newell would have
remained an electronics mechanic and had purview over all non-relay tasks. Doc. 27-6 at 30-31. Magner
felt uncomfortable with the guidance received from Bartels and perhaps from Spiger as well, and
contacted the EBOC, but did not file a formal complaint. Doc. 27-5 at 27. Stasch was contacted by the
EEOC regarding Magner's concerns. Doc. 27-4 at 51. Stasch was advised by the EEOC to ascertain
what exactly had happened, because there were potentially severe implications regarding the situation due
to the racial difference between Magner and Newell." Doe. 27-5 at 54. Stasch learned that Bartels and
Spiger's version of events was "somewhat similar but different" than Magner's version. Doc. 27-4 at 56.
Magner clauns that he felt the EEOC had "thrown him under the bus" by relating his concerns to Stasch,
and he subsequently wrote a letter to the Inspector General detailing his version of events. Doc. 27-5 at
27-28. No RIP was implemented and NeweU is now a Power Plant Shift Operator, having completed the
requisite training. Doc. 36 at
151-156; Doc. 45 at ]H[ 151-156.
The last concrete incidents that Newell argues contributed to a hostile work environment are the
creation of a work order titled "John Newell litigation" and a vulgar statement made by Spiger to
Newell's co-worker that Newell would not be paid to sue the Corps. Doc. 46 at 18. Regarding the work
order, the Army allows some official time for employees participating in EEO activities and Title Vn
litigation, and the Oahe Project creates labor charge codes to document employees' time participating in
those activities. Doc. 20 at 1137; Doc. 25 at ^ 137. In January 2015, Stasch created a work order in the
FEMS system entitled "John Newell litigation" for Magner and McCown to document their time away
from work for depositions in Newell's current case. Doc. 20 at 138; Doe. 25 at 138. When Newell
discovered the work order he alleged that title was discriminatory and created a hostile work environment,
so Stasch renamed the work order "litigation." Doe. 20 at T| 139; Doe. 25 at ^ 139. Only McCown and
Magner received emails indicating they should charge their time to this work order. Doc. 21-41 at 6.
Newell acknowledges that news of his federal lawsuit had been published in at least three newspapers and
posted to the internet. Doc. 41-1 at 13.
As for the vulgar comment, Newell's co-worker John Herbert (Herbert) had volunteered to enter
Newell's time into the FEMS system while Newell was participating in his litigation against the Corps.
Doc. 27-4 at 113. Herbert sought guidance regarding how Newell's time in litigation should be recorded.
Stasch testified that he learned from the EEOC that the information Magner relayed to them had the
implication that "we were trying to set up John [Newell] for failure." Doc. 27-4 at 51. The "severe
implications" Newell discusses in his brief. Doc. 46 at 17, are those that would arise if in fact
management at the Oahe Project was attempting to undermine the black electronics mechanic(Newell)in
favor of the white electronics mechanic (Magner). This potential issue is the reason that the EEOC
advised Stasch to ascertain the facts regarding Magner's reported concerns. Doc. 27-4 at 54.
and Stasch and Spiger were informed that the Army does not pay employees for the time used to litigate
their Title Vn claims against the United States government. Doc. 27-4 at 113-114. Spiger then went to
Herbert and informed him that "[t]he Corps of Engineers is not going to pay John Newell to f...ing sue
them."'" Doc. 25 at t 139; Doc. 27-4 at 115. Newell claims these are facts which show his supervisors
"sought opportunities to demean, ostracize and humiliate [him] in the workplace in an effort to have him
move on or at least give up on the EEO process." Doc.46 at 18.
Newell's arguments do not present a triable issue regarding a hostile work environment. Stasch
needed a work order for the Corps employees to document their time spent on Newell's case. Newell has
provided no evidence that Stasch was motivated by racial animus, or that the work order altered a
condition of Newell's employment. His lawsuit was a matter of public record, reported by the media in
several forums. Its existence was no secret to Corps employees that might have seen the FEMS entry.
The fact that Stasch renamed the work order after being contacted by the EEOC shows only that he was
willing to accommodate Newell's concerns. Spiger's comment to Herbert was a factual statement, albeit
one with a vulgarity. Herbert had inquired how he should record Newell's time, and it is a fact that the
Army will not pay Newell for his Title VU litigation against the Corps. Doc. 20 at 137; Doc. 25 at
As a final matter, Newell's other claims of racial discrimination and retaliation, which this Court
addressed in its previous order granting the Corps' motion for summary judgment. Doc. 33, are also taken
into consideration now in evaluating Newell's hostile work environment claim. Having considered the
totality of Newell's work environment,'^ this Court finds that Newell's allegations do not, as a matter of
'" In his deposition testimony, Spiger denies ever having made this statement. Doc. 27-3 at 79. In
considering the Corps' motion for summary judgment regarding Newell's hostile work environment
claim, this Court takes the facts in the light most favorable to Newell and assumes for purposes of this
Opinion and Order that the statement was made using the full form of the vulgarity.
Newell also argues that the testimony of two of his co-workers that he was subject to unusual scrutiny
and that management wanted to get rid of him is fiorther evidence supporting his hostile work
environment claim. Doc. 46 at 18; see also Doc. 24 atf 164. But aside firom their general contentions, no
evidence, other than what this Court has detailed above, has been offered to support this claim. These
statements, therefore, do not preclude summary judgment. See Reasonover. 447 F.3d at 578 ("Evidence,
not contentions, avoids summaryjudgment.").
law, constitute harassment that can support a hostile work environment claim. Even if this Court were to
assume, contrary to the testimony of Corps employees, that conduct and statements were in fact efforts to
undermine Newell's performance, Newell still cannot show as a matter of law harassment so pervasive
and severe that it altered the conditions of his employment and created a hostile work environment. Clav.
754 F.3d at 540. Newell would have been retained in the event of a RIF due to his disabled veteran
status. While Newell claims that he decided to train for a higher paid position as a Power Plant Shift
Operator because he felt defeated by management's efforts to undermine him. Doc. 24 at ^ 137, a
reasonable person in his position would not objectively perceive Newell's workplace to be hostile. See
Duncan. 300 F.3d at 934.
The Eighth Circuit's decision in Bradlev v. Widnall. 232 F.3d 626 (8th Cir. 2000), abrogated on
other grounds bv Torgerson. 643 F.3d 1031, is illustrative of why Newell's claim does not survive
In Bradlev. the plaintiff alleged she had been subjected to a hostile work
environment when her supervisor "made various negative comments in her regard, removed much of her
decision-making authority, encouraged her employees to bypass the chain of command, gave white
employees preferential treatment, instructed employees to spy on her activities, had disparaging memos
placed in her file, attempted to 'set her up' to fail a hospital inspection, and generally treated her in a
disrespectfiil and discriminatory manner." Id. at 630. The Eighth Circuit affirmed the district court's
grant of summary judgment, holding that while the "conduct cited by [plaintiff] may have resulted in a
frustrating work situation," it was not "so severe or pervasive as to have affected a term, condition, or
privilege of employment." Id. at 631-32. Like the plaintiff in Bradlev. Newell's allegations constitute at
most a "frustrating work situation" and not harassment that affected a term or condition of his
Accordingly, the Corps is entitled to summary judgment on Newell's hostile work
B. Constructive Discharge
Newell argues in his briefing that he was subject to a constructive discharge because of the
culmination of retaliatory actions and race discrimination at the Corps. Doc. 26 at 16-17. The Corps
argues that Newell has failed to exhaust his administrative remedies with respeet to his constructive
discharge claim. Doe. 35 at 19-20. "A plaintiff will be deemed to have exhausted administrative
remedies if the allegations of the judicial complaint are like or reasonably related to the administrative
charges that were timely brought." Anderson v. Block. 807 F.2d 145, 148 (8th Cir. 1986) (internal
citation omitted). While Newell cites to the events regarding the RIF as contributing to his constructive
discharge, he also argues that the race discrimination, retaliatory actions, and the buildup of discipluiary
actions in his file all laid the foundation for his constructive discharge. Doc. 24 at 137; Doc. 26 at 16|
17. Newell's allegations regarding the events surroimding the RIF are reasonably related to the various
claims he included in his EEO complaints. Therefore, he is deemed to have exhausted his administrative
remedies and this Court has subject matter jurisdiction over his constructive discharge claim.
"Title VU encompasses employer liability for a constructive discharge." Pa. State Police v.
Suders. 542 U.S. 129, 143 (2004). Constructive discharge under Title VII can be a "compound claim"
that joins with either harassment or hostile work environment. Id at 147. But, "[hjostile work
environment and constructive discharge claims may be wholly distinct causes of action under Title VII,"
because although "a hostile work environment can form the basis for a constructive discharge allegation,
hostile work environment discrimination can exist absent a tangible employment action." Winspear v.
Cmtv. Dev.. Inc.. 574 F.3d 604,607(8th Cir. 2009)(internal quotation and citations omitted); see also Pa,
State Police. 542 U.S. at 147 ("A plaintiff who advances such a compound claim must show working
conditions so intolerable that a reasonable person would have felt compelled to resign."); WiUde v. Dep't
of Health and Frnman Servs.. 638 F.3d 944, 954 (8th Cir. 2011)(finding that because a plaintiffs hostile
work environment claim failed, and the plaintiffs constructive discharge claim was presented on the
same evidence, it too failed); O'Brien v. Dep't of Agric.. 532 F.3d 805, 811 (8th Cir. 2008)(same). "To
establish a case of constructive discharge, [Newell] must show that (1) a reasonable person in [his]
situation would find [his] working conditions intolerable, and (2) the employer intended to force [him] to
quit." Rickard v. Swedish Match N. Am.. Inc.. 773 F.3d 181, 186 (8th Cir. 2014)(quoting Rester v.
Stephens Media. LLC. 739 F.3d 1127, 1132 (8th Cir. 2014)) (internal quotations removed). The first
element is measured by an objective standard, not the subjective feelings of a plaintiff. Tatom v. GeorgiaPacific Corp.. 228 F.3d 926, 932 (8th Cir. 2000). Evidence of the employer's intent may be proven
"through direct evidence or through evidence that 'the employer...could have reasonably foreseen that the
employee would quit as a result of its actions.'" Fercello v. Ctv. of Ramsev. 612 F.3d 1069, 1083 (8th
Cir. 2010)(quoting Wright v. Rolette Ctv.. 417 F.3d 879, 886(8th Cir. 2005)).
Newell cannot establish either element. His constructive discharge claim is premised on the same
allegations that are msufficient as a rnatter of law to establish his hostile work envrromnent claim. As
such, his claim fails on the first element.
Wilkie. 638 F.3d at 954; O'Brien. 532 F.3d at 811. See
also. Howard v. Bums Bros. Inc.. 149 F.3d 835, 841-42 (8th Cir. 1998) (discussing cases defining the
types of conditions that render a workplace intolerable for constructive discharge claims). Moreover,
there is no evidence in the record from which a jury could find an intent to compel Newell's resignation.
There was no question that Newell would remain an electronics mechanic in the event of an RIF due to
his disabled veteran status, a fact which he has admitted. Doc. 24 at f 120; Doc. 45 at 157. Even if
Bartels and Spiger intended to undermine Newell's performance, they could not engineer a result where
Magner would be retained over Newell. Because they knew Newell was protected by disabled veteran
status from the RIF, Bartels and Spiger could not have "reasonably foreseen that [Newell] would quit as a
result of their actions. Farcello. 612 F.3d at 1083. Thus Newell's claim fails on the second element as
Contrary to Newell's areguments, Newell's decision to become a Power Plant Shift Operator does
not constitute a constructive diseharge. The Operator position is the highest paid non-supervisory
position at the Oahe Project, is higher paid than three of six supervisory positions, and with overtime is
the highest paid position at the Oahe Project. Doc. 36 at ^ 153; Doc. 45 at 153. Newell argues that he
considers, the move a constructive discharge because he lost pay during the two-year training period he
had to undergo to obtain the Operator position, the position has difficult work hours relative to the
electronics mechanic position, and an "advancement factor of zero." Doc. 45 at
153, 155. Newell's
claim that he lost pay is premised on the fact that his training to become an Operator required him to
spend one year of time in grade for each trainee level. Doc. 36 at 1152. He received the same pay as a
trainee that he had received as a journeyman. Doc. 24 at ^ 144. This alone does not amount to
constructive discharge. Allen v. Bridgestone/Firestone. Inc.. 81 F.3d 793, 797 (8th Cir. 1996) ("[A]
reduction in pay does not necessarily constitute a constructive discharge."). A "change in employment
that significantly affect[s] an employee's future career prospects" may amount to an adverse employment
action, "but minor changes in working conditions that merely inconvenience an employee or alter an
employee's work responsibilities do not." Sallis v. Univ. of Minn.. 408 F.3d 470, 476 (8th Cir. 2005)
(internal citation omitted). Beyond Newell's contention that his new position has "an advancement factor
of zero," he has provided no evidence from which a jury could determine that his switch to a higher paid
position as an operator has significantly affected his future career prospects. The difference in hours
between his position as an Operator relative to when he was an electronics mechanic may be
inconvenient, but it is not a constructive discharge. Accordingly, the Corps is entitled to summary
judgment on Newell's constructive discharge claim.
This Court previously granted the Corps' motion for summary judgment on Newell's retaliation
claims except for the seven-day suspension, which was the subject of Newell's pending EEC complaint.
The Army has issued a FAD upholding Newell's suspension, and this Court now grants the Corps'
motion for summary judgment as it relates to Newell's retaliation claim based upon that suspension.
In July of 2013, Newell filed an EEC complaint alleging that his April 2013 Letter of Reprimand
was the result of a hostile work environment, discrimination, and reprisal. Doc. 20 at ^ 103; Doc. 25 at
f 103. In May of 2014, Newell's supervisor discovered Newell had recorded 69 hours since September of
2013 for inspections of safety equipment that had not taken place. Doc. 20 at 122; Doc. 25 at f 122.
NeweU received a Notice of Proposed Suspension in June of 2014. Doc. 20 at f 127; Doc. 25 at ^ 127.
On September 16, 2014, the ALJ ruled that Newell had put forth sufficient evidence to raise an inference
of retaliation, and ordered the 2013 Letter of Reprimand rescinded. Doc. 20 at
105; Doc. 25 at ^ 105.
Newell's final seven-day suspension for the conduct discovered in May of 2014 was issued on January 8,
2015. Doc. 20 at 130; Doc. 25 at ][ 130. The Army issued a FAD concurring with the ALJ's decision
regarding the Letter of Reprimand on January 9, 2015. Doc. 20 at 1107; Doc. 25 at ^ 107.
Title Vn establishes that it is "unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has opposed any practice made an unlawful employment
practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VTI.]" 42 U.S.C. § 2000e-3(a). While retaliation is
prohibited, the filing of an "EEOC complaint does 'not insulate an employee from discipline for . . .
disrapting the workplace.'" Wallace v. Sparks Health System. 415 F.3d 853, 858 (8th Cir. 2005)(quoting
Kiel V. Select Artificials. Inc.. 169 F.3d 1131, 1136 (8th Cir. 1999)). To establish his retaliation clahn,
Newell must first make a prima facie case of retaliation, that "(1)he engaged in protected conduct;(2)a
reasonable employee would have found the retaliatory action materially adverse; and (3) the materially
adverse action was causally linked to the protected conduct." Musolf v. J.C. Pennev Co.. 773 F.3d 916,
918 (8th Cir. 2014)(citing Pve v. Nu Aire. Inc.. 641 F.3d 1011, 1021 (8th Cir. 2011)). The burden on
Newell to show that the complained-of materially adverse action was causally linked to the protected
conduct is not difficult, with traditional principles of but-for causation to be applied. See Univ. of Tx.
Sw. Med. Ctr. v. Nassar. 133 S. Ct. 2517, 2528 (2013)("Title Vn retaliation claims require proof that the
desire to retaliate was the but-for cause ofthe challenged employment action."); Gross v. FBL Fin. Servs..
Inc.. 557 U.S. 167, 176 (2009); Musolf. 773 F.3d at 919. After establishing a prima facie case, the
standard McDonnell Douglas burden shifting analysis applies. See Pve. 641 F.3d at 1021.
The parties agree that Newell's filing of complaints of race discrimination and retaliation under
Title vn are protected actions under 42 U.S.C. § 2000e-3(a). The seven-day suspension constitutes an
adverse employment action. McClure v. Career Svs. Dev. Corp.. 447 F.3d 1133, 1137 (8th Cir. 2006)
("Suspending [plaintiff] without pay is an adverse employment action."). Therefore, Newell's retaliation
claim turns on whether he can show a causal relationship between his suspension and his protected EEO
complaint activities. A causal relationship, using the but-for causation standard, can be shown via a
proximity in time between the protected activity and the adverse employment action, but can only be
relied upon for the sole indication of causality if the actions are "very close" in time.
Clark Ctv. Sch.
Dist. V. Breeden. 532 U.S. 268, 273 (2001)(per curiam); see also Univ. of Tx. Sw. Med. Ctr.. 133 S. Ct.
at 2528 ("Title Vn retaliation claims require proof that the desire to retaliate was the but-for cause of the
challenged employment action."); Gross. 557 U.S. at 176; Musolf. 773 F.3d at 919.
Newell argues the temporal proximity between the date his suspension was issued and the date
that the Army affirmed the ALJ's decision regarding the Letter of Reprimand satisfies the third element of
his prima facie ease. Doc. 46 at 20. However, Newell's contention that the suspension was issued one
day after the Army's decision is contradicted by the record. Staseh issued the suspension on January 8,
2015, and the Army issued the FAD eoncurring with the ALJ's decision one day later on January 9, 2015.
Putting this error in Newell's assertion aside, NeweU generally contends that because Staseh was
considering whether the ALJ's decision would be appealed or upheld m determining the length of
Newell's suspension, there is a causal lirdc between his protected EEO activity and the adverse
employment action. Doe. 46 at 21-22. This Court disagrees. During his deposition, Staseh testified that
he had to wait on the Army's decision regarding the ALJ's ruling because whether the Letter of
Reprimand stayed in Newell's file or not would impact the length of the suspension that could be imposed
on Newell. Doe. 27-4 at 105. Because he was concerned about punishing Newell for conduct that had
taken place six months prior, Staseh decided not to wait any longer for an Army decision on the ALJ's
ruling and treated the incident as a stand-alone action, imposing a seven-day suspension for NeweU's
failure to properly inspect plant safety equipment and time discrepancies rather than a 14-day suspension.
Doe. 27-4 at 106.
Despite Newell's contentions to the contrary, waiting to see if the Letter of Reprimand would
remaui in his file or not factored in determining whether Newell would receive progressive punishment
for his latest disciplinary infraction. The EEO complaint regarding the Letter of Reprimand was filed in
July of 2013, and his suspension for failing to inspect safety equipment while falsifying his time records
was not proposed until 11 months later. Even the final suspension was issued nearly four months after the
ALJ issued its ruling. The time between these events undermines Newell's proximity argument to assert
a causal link. Fercello. 612 F.3d at 1080 (finding a six-month gap between the protected activity and the
adverse employment action "weakens the inference of causation"). Newell augments his argument by
alleging that Stasch and Spiger's "repressive reaction to Magner" contacting the EEOC demonstrates their
"hostile and punitive reaction to EEO activity" involving Newell. Doc. 46 at 22. As detailed in section
ni above, the record shows that Stasch was advised by the EEOC to ascertain the facts of the situation
relating to Magner's concerns. Newell's statements notwithstanding, nothing about Stasch inquiring
about the factual basis of Magner's concerns regarding a separate incident supports a causal link between
Newell's EEO complaints and his suspension for failing to properly inspect plant safety equipment and
falsifying his time records. "A party's unsupported self-serving allegation that [his] employer's decision
was based on retaliation does not establish a genuine issue of material fact." Gibson v. Am. Greetings
Corp.. 670 F.3d 844, 857 (8th Cir. 2012)(quoting Jackson v. United Parcel Serv.. Inc.. 643 F.3d 1081,
1088(8th Cir. 2011)).
Additionally, even if Newell had established a prima facie case of retaliation in his suspension,
there is no genuine issue of material fact to show pretext in the Coips' proffered reason for the
suspension. Newell attempts to establish pretext by asserting that he was disciplined for conduct that
other employees regularly engage in without sanction, and that the severity of his suspension was
disproportionately harsh in comparison to the disciplinary actions handed out for different offenses at the
Oahe Project. Doc. 46 at 23-25. While "[ijnstances of disparate treatment can support a claim of
pretext,...[Newell] has the burden of proving that [he] and [his co-workers] were similarly situated in all
relevant respects." King v. Hardestv. 517 F.3d 1049, 1063 (8th Cir. 2008)(quotation omitted) abrogated
oh other grounds bv Torgerson. 643 F.3d 1031; see also Putnam v. Unitv-Health Svs.. 348 F.3d 732, 733—
34 (8th Cir. 2003) (noting that to establish pretext, a plaintiff must "substantiate-his allegations with
sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere
speculation, conjecture, or fantasy") (alterations in original) (internal citation omitted). Newell has
produced no evidence that his co-workers were "involved in or accused of the same offense and [were]
disciplined in different ways," and consequently has failed to show that he and his co-workers "were
similarly situated in all relevant aspects." King. 517 F.3d at 1063 (emphasis in original) (internal
citations and quotations omitted). The closest Newell comes to this standard is through his allegation that
both he and Magnet were jointly responsible for the fire extinguisher maintenance. Doc. 24 at 1j 111;
Doc.46 at 23. But Newell has not alleged, nor has evidence been presented, that Magner falsely recorded
time for fire extinguisher maintenance and inspections not performed. There is no evidence of record that
any other employee at the Oahe Project was "involved in or accused of the same offense" for which
Newell received his suspension. King. 517 F.3d at 1063. Instead, Newell essentially asks this Court to
second-guess the business decisions of the Corps, and the Eighth Circuit has made clear "the
employment-discrimination laws have not vested in the federal courts the authority to sit as super-
personnel departments reviewing the wisdom or fairness of the business judgments made by employers,
except to the extent that those judgments involve intentional discrimination." Id. (quoting Hutson v.
McDonnell Douglas Corp.. 63 F.3d771, 781 (8th Cir. 1995)). The evidence of record as a matter of law
is insufficient to sustain Newell's retaliation claim, and the Corps is entitled to summaryjudgment.
Conclusion and Order
For the reasons stated above, it is hereby
ORDERED that the Defendants' Motion for Summary Judgment, Doc. 34, is granted.
day of October, 2017.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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