Boyce v. Interbake Foods
Filing
99
ORDER granting 41 Motion for Summary Judgment; denying 52 Motion; granting 94 Motion to Strike. Signed by Chief Judge Karen E. Schreier on 8/26/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ALAN T. BOYCE,
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Plaintiff,
vs.
INTERBAKE FOODS,
Defendant.
CIV. 09-4138-KES
ORDER GRANTING DEFENDANT’S
MOTION TO STRIKE, GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AND
DENYING PLAINTIFF’S MOTION TO
OPPOSE SUMMARY JUDGMENT
Plaintiff, Alan T. Boyce, brought a pro se action against defendant,
Interbake Foods, alleging violations of Title VII and a state-law claim of
intentional infliction of emotional distress. Interbake moves for summary
judgment on all counts, which Boyce resists in a motion to oppose the
summary judgment motion. Interbake also moves to strike factual statements
contained in Boyce’s filings, which Boyce resists. Interbake’s summary
judgment motion is granted and Boyce’s motion to oppose summary judgment
is denied. Interbake’s motion to strike is granted.
BACKGROUND
In the light most favorable to Boyce, the nonmoving party, the pertinent
facts to this order are as follows:1
1
The court liberally construes a pro se litigant’s materials. Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004). Similarly, an EEOC complaint
should be liberally construed “in order not to frustrate the remedial purposes of
Title VII.” Nichols v. Am. Nat’l Insur. Co., 154 F.3d 875, 886-87 (8th Cir. 1998)
(internal quotation omitted). But the alleged facts in a complaint to the court
must grow out of the allegations contained in the EEOC complaint or be
reasonably related to the substance of the allegations in the EEOC complaint.
Id. at 887 (citation omitted). The court reviewed all of Boyce’s and Interbake’s
Interbake is a cookie and cracker manufacturer. Interbake employees,
including Boyce, are represented by the Bakery, Confectionary, Tobacco
Workers, and Grain Millers Union, Local No. 433 (Union). At all relevant times
in this matter, Interbake and the Union had a collective bargaining agreement
(Agreement).
Boyce, an African-American male, began working at Interbake in August
of 2005 in the packaging and additions department at Interbake’s facility in
North Sioux City, South Dakota. Boyce was assigned to the position of enrober
operator and his wages and benefits were paid according to the Agreement.
Interbake has an employee handbook that describes two types of
disciplinary infractions. Type I Offenses may result in progressive discipline.
Type II Offenses subject the offending employee to immediate discharge.
Interbake also offers coaching sessions to address an employee’s behavior.
Interbake keeps a written record of coaching sessions, but coaching sessions
are not a part of Interbake’s progressive discipline policy.
In January of 2008, Boyce filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC), and the dispute was resolved
through mediation on February 21, 2008. Pursuant to the February 21, 2008,
agreement, Boyce received payment and released all pending claims against
Interbake.
In February of 2008, Pat Minor, an off-shift scheduler, stated, “If
anybody missed work, it would be Alan Boyce and Roxann Favors and Marcia
materials and has set out the relevant facts for Boyce’s retaliation, hostile work
environment, and intentional infliction of emotional distress claims. The court
has disregarded facts that do not pertain to these claims.
2
Jackson.” Boyce did not hear this statement but, once he learned of Minor’s
statement, argues that her words negatively affected his morale. Favors and
Jackson are also African-American.
On May 8, 2008, an equipment issue resulted in a cookie jam-up. Boyce
temporarily turned off the air blowers to clear the jam, which resulted in
cookies with excessive coating. David Williams, Boyce’s line manager,
instructed Boyce on how to handle a similar situation in the future. Boyce was
not disciplined, and he was not issued a coaching session for the May 8
incident.
On June 5, 2008,2 Interbake issued Boyce a coaching session for using
profane language, a Type I Offense, with line manager Carol Mackey. Boyce
argues that Mackey “was forced into” the coaching session. See Docket 57 at
¶ 28. At some later time (the specific date is unclear from the record), a white
employee who cursed in front of team leader Ken Gardner received no
discipline. In June of 2008, Boyce filed a charge of discrimination and
retaliation for the May 8 incident and the June 5 coaching session with the
South Dakota Division of Human Rights (SDDHR).
The SDDHR dismissed the charge because it found neither
discrimination nor retaliation by Interbake. Boyce appealed the SDDHR
decision to the South Dakota Circuit Court for the First Judicial Circuit. After
2
Boyce alleges that the date of the coaching session was June 2, 2008.
Interbake alleges that the date was June 5, 2008. The coaching session
paperwork states that the session occurred on June 5, 2008. Because the
parties agree that a coaching session occurred on either June 2 or June 5 and
the actual date is immaterial to the issues in this order, the court will assume
that the coaching session occurred on June 5.
3
full briefing, the state court determined that neither the May 8 incident nor the
June 5 coaching session were discriminatory or retaliatory.
In July of 2008, Minor stated “Alan Boyce is upset” across a two-way
radio. Boyce did not hear this statement but claims that it negatively affected
his morale.
At some point (the date is unclear from the record), Minor scheduled
Boyce to work in the coconut topper position. In order for an employee to be
assigned to a position at Interbake, the employee must be qualified to work the
position, meaning he worked that position within the prior twelve-month
period. When assigning an employee to a position, the manager consults
Interbake’s computer system to ensure that he meets that position’s
prerequisites.
Minor scheduled Boyce to work in either the caramel mixing or coconut
topper positions. Boyce told Minor that he had not worked either position in
over twelve months. Minor reviewed the overtime records, saw that Boyce had
worked both positions in overtime shifts, showed Boyce the records, and
offered Boyce a choice of positions. Boyce chose the coconut topper position.
At some other time (the specific date is unclear from the record), Boyce
argues that an overtime scheduling error occurred. More senior employees
normally receive first choice on whether to work overtime and less senior
employees are assigned any remaining shifts. When Boyce discovered that less
senior employees were available to work overtime, he reported the situation to
supervisor Melissa Dale, who took Boyce off of the overtime assignment.
4
On February 19, 2009,3 Boyce received a verbal warning, the first step in
Interbake’s progressive discipline policy, for failing to follow Interbake’s
washout procedures. Boyce had received a coaching session on May 12, 2007,
for a similar infraction. Boyce alleges that a month later, caps on the enrober
machine were found to be dirty when the employees set up the machines for
the day. An employee brought the dirty caps to the manager’s attention, but
the manager told the employees that it was “not a big deal and it will be o.k.”
Docket 66.
In April of 2009, Boyce filed a charge with the EEOC alleging
discrimination from the February 19, 2009, verbal warning, and retaliation in
the form of Minor’s statements, the overtime scheduling error, and being
scheduled to work in the coconut topper position. The EEOC dismissed the
charge and Boyce received his right-to-sue letter on June 11, 2009. Boyce filed
this lawsuit on September 10, 2009.
In November of 2010, Boyce discovered a cookie that he claimed was
racially offensive. Boyce moved to compel discovery about the cookie and, after
construing Boyce’s motion to compel as a motion to modify the Rule 16
3
Boyce alleges that he received a verbal warning on February 18, 2009.
Interbake argues that Boyce received the verbal warning on February 19, 2009.
Because the paperwork for the verbal warning reflects a “date letter issued” of
February 19 (Docket 44-10), and the exact date is immaterial to this order, the
court will assume that Boyce received the verbal warning on February 19,
2009.
5
scheduling order, the court granted the motion. Interbake has provided the
requested documents to Boyce and to the court under seal.4
The incident involved a cookie made from devil’s food cake and decorated
with a white frosting smiley face, which was discovered on an Asian-American
co-worker’s machine in November of 2010. Interbake investigated the matter.
Interbake interviewed the co-worker and she stated that she made the cookie
for herself, she enjoyed looking at the cookie, and the cookie looked like a
“god.” The co-worker further stated that she forgot to take the cookie home
with her after she made it. Interbake issued the co-worker a coaching session
for creating the cookie. In a November 2010 memorandum to all Interbake
employees, Tiffani Stegemann addressed the issue of taking scrap materials
and making offensive cookies. Docket 92-7 (sealed). Stegemann cautioned all
employees that “[t]his behavior needs to stop immediately.” Docket 92-7
(sealed).
DISCUSSION
I.
Motion to Strike
Interbake moves to strike two sets of documents produced by Boyce. The
first set, labeled PUF-6, PUF-10, PUF-20, and PUF-25 (Docket 86 at 8, 12, 23,
and 28, and the corresponding, duplicative documents in Docket 84), are
alleged affidavits that are unsworn and undated. The second set of documents,
labeled PUF 1-5, PUF 7-18, PUF-21, PUF 23-24, and PUF 26-30 (Docket 86 at
2-7, 9-21, 24, 26-27, and 29-33, and the corresponding, duplicative documents
4
Because the additional discovery documents are under seal, the court
will only generally discuss the materials contained in the documents.
6
in Docket 84), contain investigation notes, summaries, and correspondence
that are not authenticated by an affidavit.
A.
Affidavits
Federal Rule of Civil Procedure 56(c) controls the introduction of evidence
for purposes of summary judgment. If a fact offered in support of or in
opposition to a summary judgment motion is not supported by admissible
evidence, the opposing party may object to that fact. Fed. R. Civ. P. 56(c)(2).
Interbake objects that Boyce’s affidavits are not in proper form and should be
stricken from the record.
For an affidavit to be used to support or oppose a motion for summary
judgment, it “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4); see also Stuart v. Gen.
Motors Corp., 217 F.3d 621, 636 n.20 (8th Cir. 2000) (“To be considered on
summary judgment, documents must be authenticated by and attached to an
affidavit made on personal knowledge setting forth such facts as would be
admissible in evidence or a deposition that meets the requirements” of the
federal rules.). The court cannot consider affidavits at the summary judgment
level that contain evidence that would be inadmissible at trial. Phillips v. Jasper
Cnty. Jail, 437 F.3d 791, 796 (8th Cir. 2006) (citing Brooks v. Tri-Sys., Inc., 425
F.3d 1109, 1111 (8th Cir. 2005)).
An affidavit is either a sworn declaration or a document signed under
penalty of perjury as set forth in 28 U.S.C. § 1746. It is a long-standing rule
that an unsworn statement of a lay witness cannot be considered at the
7
summary judgment stage. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158
n.17 (1970) (reasoning that an unsworn statement did not meet the
requirements under Rule 56 and, thus, cannot be considered as evidence); see
also Roby v. McCoy, 316 Fed. App’x 527, 528 (8th Cir. 2009) (same). District
courts properly exclude affidavits at the summary judgment level when the
affidavits fail to conform to the federal rules. See, e.g., Malone v. Ameren UE, 646
F.3d 512, 512 (8th Cir. 2011) (reasoning that the district court did not abuse its
discretion in excluding affidavits that failed to comply with Rules 37 and 26).
Additionally, if an affidavit contains hearsay, the hearsay evidence is not
considered at the summary judgment stage. Miller v. Solem, 728 F.2d 1020,
1026 (8th Cir. 1984).
Although Boyce’s unsworn and undated statements of various individuals
are notarized statements, they are not affidavits because they lack either the
attestation language or the alternative language, “under penalty of perjury,”
contained in § 1746. Thus, Interbake’s motion to strike is granted as to the
unsworn statements in Docket 86 at 8, 12, 23, and 28, and the corresponding,
duplicative documents in Docket 84.
B.
Documents Lacking an Affidavit
Boyce also offers a number of documents that are not authenticated by
an affidavit. Interbake argues that the documents contain inadmissible hearsay
evidence in violation of Federal Rules of Evidence 801(c), 802, and 901(a).
The rules of evidence require a document to be authenticated in order for
it to be admissible. Fed. R. Evid. 901(a) (“The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
8
sufficient to support a finding that the matter in question is what its proponent
claims.”). To authenticate evidence, the local rules require the party offering the
evidence to attach an affidavit to the document. D.S.D. Civ. LR 56.1C (“A party
shall attach to an affidavit all relevant documentary evidence in support of or
in opposition to a motion for summary judgment.”). Failure to follow the local
rules can result in the striking of the evidence. See, e.g., Brannon v. Luco Mop
Co., 521 F.3d 843, 847 (8th Cir. 2008) (reviewing a motion to strike for failure
to follow the local rules under an abuse of discretion standard and affirming
the district court).
This court and Magistrate Judge John E. Simko have repeatedly warned
Boyce that even though he is a pro se litigant, he must follow the federal and
local rules. See, e.g., Docket 82 at 8 (warning Boyce that he must follow Rule
11); Docket 35 at 1 (“The legal process requires the parties to follow the
rules.”). Boyce did not provide an affidavit attached to the documents and,
thus, Interbake’s motion to strike those documents (Docket 86 at 2-7, 9-21, 24,
26-27, and 29-33, and the corresponding, duplicative documents in Docket 84)
is granted.
II.
Summary Judgment Motion
A.
Standard
Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Only disputes over facts that might affect the outcome of the case will preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
9
Summary judgment is inappropriate if a dispute about a material fact is
genuine, that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient
evidence to establish that there are no genuine issues of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the facts “in the
light most favorable to the party opposing the motion.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted).
The nonmoving party also receives “the benefit of all reasonable inferences to
be drawn from the underlying facts” in the record. Vette Co. v. Aetna Cas. &
Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980) (citing Adickes, 398 U.S. at 15859.
B.
Res Judicata and Timeliness
Interbake argues that res judicata prevents the court from considering
the May 8, 2008, incident where Boyce and supervisor Williams discussed a
jam-up and the June 5, 2008, coaching session after Boyce used profanity with
Mackey, because the state court issued a final ruling on these issues.
Interbake also contends that Boyce violated the timeliness provisions in 42
U.S.C. §§ 2000e-5(f)(1), 2000e-5(e)(1).
The court will not address Interbake’s res judicata and timeliness
arguments because even if the court considers the evidence to which Interbake
objects, summary judgment is still appropriate. Thus, the court will consider
10
all the evidence in determining whether summary judgment should be granted
on the merits.5
C.
Title VII Retaliation
Boyce does not allege a cause of action for retaliation in violation of
Title VII in his complaint. “Though pro se complaints are to be construed
liberally, they still must allege sufficient facts to support the claims advanced.”
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (citations omitted). Two of
Boyce’s EEOC charges, dated June 18, 2008, and April 20, 2009, allege
retaliation. Because the record reflects that Boyce intended to assert a Title VII
retaliation claim during the administrative review process, the court will
construe Boyce’s complaint as asserting a Title VII retaliation claim.
A plaintiff prevails on a retaliation claim if he can show that the
discrimination was a “motivating factor” in the challenged employment
decision. 42 U.S.C. § 2002e-2(m). A plaintiff may meet this evidentiary burden
through either direct or indirect evidence. Jackson v. United Parcel Serv., Inc.,
548 F.3d 1137, 1142 (8th Cir. 2008). Boyce asserts only indirect evidence of
retaliation.
A retaliation claim based on indirect evidence uses the familiar
McDonnell Douglas burden-shifting analysis. Pye v. Nu Aire, Inc., 641 F.3d
1011, 1021 (8th Cir. 2011). The plaintiff must first prove a three-part prima
facie test: (1) he engaged in a statutorily protected activity; (2) he suffered a
5
Even though the court granted Interbake’s motion to strike, the court
will consider all the evidence submitted in support of and in opposition to the
summary judgment motion, including the stricken evidence, when ruling on
the summary judgment motion.
11
materially adverse employment action; and (3) a causal connection exists
between the two events. Id. (citing Fercello v. Cnty. of Ramsey, 612 F.3d 1069,
1077-78 (8th Cir. 2010)). Once the prima face case is proven, the burden then
shifts to the employer to show there was a legitimate, nondiscriminatory reason
for the adverse employment action. Id. If the employer makes this showing, the
burden shifts back to the employee to show that the proffered reasons are a
mere pretext for discrimination. Id.
Boyce filed charges of discrimination with the EEOC on January 7, 2008,
June 18, 2008, and April 20, 2009. Boyce’s filing of his EEOC complaints is a
protected activity. Robinson v. Potter, 453 F.3d 990, 994 (8th Cir. 2006). Thus,
Boyce has met element one.
The court conducts a case-by-case analysis when determining whether
an employer’s action is an adverse employment action. Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 69 (2006). “[A] plaintiff must show that a
reasonable employee would have found the challenged action materially
adverse, ‘which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’ ” Id.
at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The
harm must be material, not trivial, and is viewed under an objective standard.
Id.
Boyce alleges that he suffered a materially adverse employment action
when Interbake scheduled him to work overtime against his will. After Boyce
told Interbake that there were less senior employees available to work that
shift, Interbake apologized and took Boyce off that overtime position. Because
12
Boyce incurred no detriment in being scheduled to work overtime and
subsequently not being scheduled to work overtime, this is not an adverse
employment action.
Boyce also contends that his assignment to the coconut topper position
is an adverse employment action. In order for an employee to be assigned to a
position at Interbake, the employee must have worked that position within the
prior twelve-month period. Minor scheduled Boyce to work in either the caramel
mixing or coconut topper positions. Boyce protested to Minor that he had not
worked the positions in over twelve months. Minor reviewed the overtime
records, saw that Boyce had worked the positions in overtime shifts, showed
Boyce the records, and allowed him to choose which position he preferred.
Boyce chose to work in the coconut topper position.
Boyce alleges neither that his hourly rate of pay was reduced as a result
of working in the coconut topper position nor that his benefits were affected.
While working in the coconut topper position may not have been Boyce’s first
preference, Boyce does not allege that Minor or Interbake failed to follow the
established procedure for assigning employees their work positions. Instead,
the uncontested evidence shows that Minor scheduled Boyce according to the
parties’ long-standing practice based on a combination of qualifications,
preference, and seniority. Any harm suffered by Boyce was trivial and, thus,
his assignment to the coconut topper position is not an adverse employment
action.
Boyce argues that he suffered an adverse employment action on May 8,
2008, when Boyce and supervisor Williams discussed a jam-up that occurred
13
on one of Boyce’s machines. During that conversation, Williams explained to
Boyce how to resolve the situation in the future. Because Boyce received
neither discipline nor a coaching session for the May 8 incident, the incident is
not an adverse employment action.
Interbake alleges that Boyce used profanity with line manager Mackey on
May 30, 2008, for which Interbake issued him a coaching session on June 5,
2008. Boyce alleges that he “was issued another coaching, this time for cussing
out Line Manager Carol Mackey even though Ms. Mackey said this did not
happen.” Docket 44-9 at 3. Even assuming that Boyce’s version of the facts is
correct and that Interbake improperly issued Boyce a coaching session, a
coaching session is not a step in Interbake’s progressive discipline policy.
Because any harm to Boyce from the coaching session was trivial, the June 5
coaching session did not result in a materially adverse employment action.
Similarly, Boyce alleges that a verbal warning for failing to follow
Interbake’s washout procedures on February 19, 2009, constitutes an adverse
employment action. Interbake has established procedures for washing out
equipment. Boyce does not allege that he followed the washout procedure and,
therefore, Interbake was within its management rights to issue Boyce a verbal
warning. The warning did not result in a loss of pay or benefits to Boyce and
does not constitute a materially adverse employment action.
Boyce has not met the second element of his prima facie case. But even if
one of these actions or these actions viewed in their totality constitute an
adverse employment action, Boyce is unable to prove the third element, a
causal connection. One method for proving a causal connection is temporal
14
proximity between the protected activity and the adverse employment action.
Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 616 (8th Cir. 2003).
Boyce does not present any argument on the causal connection and, thus, the
court is left only with temporal proximity to establish the requisite causal
connection. Generally, however, “ ‘more than a temporal connection . . . is
required to present a genuine factual issue on retaliation.’ ” Kipp v. Mo. Hwy. &
Transp. Comm., 280 F.3d 893, 897 (8th Cir. 2002) (quoting Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)).
Boyce filed his first EEOC complaint in January of 2008. Five months
later, the May 8 cookie jam-up incident occurred, which resulted in a
conversation between Boyce and supervisor Williams but did not result in a
coaching session or discipline. One month later, Boyce received the June 5,
2008, coaching session. Boyce filed his second EEOC charge in June of 2008.
Eight months elapsed before Boyce received his February 19, 2009, verbal
warning. A time interval of five, six, or eight months is too long to show
temporal proximity sufficient to satisfy the causal connection element. See,
e.g., Trammel, 345 F.3d at 616 (reasoning that a “time interval of more than
two months is too long to support an inference of causation.”).
Boyce cannot make out a prima facie case of retaliation in violation of
Title VII. Because no genuine issues of material fact remain on the Title VII
retaliation claim, summary judgment is granted to Interbake on that claim.
15
D.
Title VII Hostile Work Environment
Boyce alleges a hostile work environment claim, which requires him to
prove a five-part prima facie case: (1) he is a member of a protected group;
(2) unwelcome harassment occurred; (3) the harassment was based on race;
(4) the harassment affected a term, condition, or privilege of employment; and
(5) his employer knew or should have known of the harassment and failed to
take prompt and effective remedial action. Tatum v. City of Berkeley, 408 F.3d
543, 550 (8th Cir. 2005).
The first element of Boyce’s prima facie case is not in dispute because as
an African-American Boyce is part of a protected class. Whitley v. Peer Review
Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000). The parties, however, dispute
the second element, unwelcome harassment.
To be actionable, the conduct complained of in a hostile work
environment claim, “ ‘must be extreme in nature and not merely rude or
unpleasant.’ ” Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 618 (8th
Cir. 2007) (quoting Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841,
846 (8th Cir. 2006)). “Allegations of a few isolated or sporadic incidents will not
suffice; rather, the plaintiff must demonstrate the alleged harassment was ‘so
intimidating, offensive, or hostile that it poisoned the work environment.’ ” Id.
(quoting Nitsche, 446 F.3d at 846). Hostile work environment harassment
occurs when the workplace “ ‘is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
16
environment as viewed objectively by a reasonable person.’ ” Id. (quoting
Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003)).
Boyce alleges three incidents of harassment.6 First, Pat Minor said that
“[i]f anyone missed work, it would be Alan Boyce and Roxann Favors and
Marcia Jackson” in February of 2008. Second, in July of 2008, Minor said
“Alan Boyce is upset.” Boyce did not hear either of these two statements. Third,
Boyce alleges that in November of 2010 an Asian-American co-worker created a
racially offensive cookie when she molded devil’s food cake into an oval shape
and decorated the cookie with a white frosting smiley face.
Assuming for purposes of argument that these three incidents are
harassment and are based on race, there is no evidence that the harassment
affected a term, condition, or privilege of Boyce’s employment or that the
offending conduct created an objectively hostile environment. Hathaway v.
Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997).
In determining if the working environment was objectively hostile, the
fact-finder views the situation from the totality of the circumstances. Moylan v.
Maries Cnty., 792 F.2d 746, 750 (8th Cir. 1986) (citing Henson v. City of
Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). “The harassment must be
‘sufficiently pervasive so as to alter the conditions of employment and create an
abusive working environment.’ ” Moylan, 792 F.2d at 750 (quoting Henson, 682
6
Interbake characterizes the two statements by Minor as evidence for
Boyce’s hostile work environment claim, which Boyce does not dispute. See
Docket 43 at ¶ 68. Boyce also appears to argue that the cookie incident
constitutes a hostile work environment. See Docket 82 at 10-12 (discussing the
cookie incident in context of Boyce’s claims).
17
F.2d at 904). The harassment must be a practice or pattern and, generally, an
employee must “show that the harassment is sustained and nontrivial.” Id.
(citing Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983), overruled on other
grounds).
The Supreme Court has announced factors to determine if the working
environment was hostile: “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “[S]imple
teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and conditions of
employment.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). “[T]he
plaintiff must show that the conduct was discriminatory in nature and that [he]
was singled out for such treatment on the basis of [his] membership in a
protected category under the statute.” Hathaway, 132 F.3d at 1221.
The frequency of incidents here is low. The three incidents occurred over
an almost two-year time span. Minor’s statements were not severe, humiliating,
or threatening. Boyce argues that her statements affected his morale but he
offers no facts that her statements unreasonably interfered with his
employment. Because the cookie was made from scrap devil’s food cake, it is a
black-brown color. But the cookie does not objectively appear to stereotype
African-Americans or otherwise have racial overtones.
Even if the cookie is racially offensive, the incident occurred once. The
employee who created the cookie told Interbake that she meant no harm by the
18
cookie and enjoyed looking at her creation. Interbake issued the co-worker a
coaching session and circulated a company-wide memorandum instructing all
team members not to make items out of extra ingredients. Docket 92-7. The
cookie incident was not so extremely serious as to alter Boyce’s working
conditions or otherwise create a hostile work environment. Because Boyce has
not made out a prima facie case of a hostile work environment, summary
judgment is granted to Interbake on Boyce’s hostile work environment claim.
E.
Intentional Infliction of Emotional Distress
To succeed on his claim of intentional infliction of emotional distress,
Boyce must make a four-part showing: (1) an act by Interbake that amounts to
extreme and outrageous conduct; (2) intent or recklessness by Interbake to
cause Boyce severe emotional distress; (3) Interbake’s conduct was the causein-fact of Boyce’s distress; and (4) Boyce suffered an extreme disabling
emotional response to Interbake’s conduct. Reeves v. Reiman, 523 N.W.2d 78,
83 (S.D. 1994) (citations omitted); Esser v. Tx. Roadhouse Mgmt. Corp., No. Civ.
08-4004-KES, 2010 WL 396224, at *5 (D.S.D. Jan. 27, 2010) (applying the
same test for intentional infliction of emotional distress when the plaintiff also
alleged a Title VII discrimination claim).
Whether the conduct amounts to extreme and outrageous conduct is
initially determined by the court. Harris v. Jefferson Partners, 653 N.W.2d 496,
500 (S.D. 2002) (citing Richardson v. E. River Elec. Power Coop., 531 N.W.2d 23,
27 (S.D. 1995)). In order for the conduct to be considered “outrageous,” the
conduct must be “ ‘so extreme in degree, as to go beyond all possible bounds of
decency, and be regarded as atrocious, and utterly intolerable in a civilized
19
community.’ ” Id. (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
Liability for intentional infliction of emotional distress will “ ‘not extend to mere
insults, indignities, threats, annoyances, petty oppression, or other
trivialities.’ ” Id. (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
Interbake states that Boyce’s intentional infliction of emotional distress
claim is based on the following incidents: the May 8, 2008, discussion with
Williams, the June 5, 2008, coaching session for using profanity, Minor’s two
statements that “[i]f anyone missed work, it would be Alan Boyce and Roxann
Favors and Marcia Jackson” and “Alan Boyce is upset,” the scheduling error
for overtime that Interbake corrected when Boyce brought it to his supervisor’s
attention, the verbal warning on February 19, 2009, when Boyce failed to
follow Interbake’s washout procedures, and the cookie discovered by Boyce in
November of 2010.7
After reviewing the entire record in this case and viewing the facts alleged
under Boyce’s intentional infliction of emotional distress claim in the light most
favorable to Boyce, the court finds that Interbake’s conduct has not been
outrageous. Interbake’s conduct does not exceed the bounds of decency and
many of the incidents, especially the scheduling, coaching sessions, and verbal
warning, were actions that Interbake was within its rights as an employer to
make. The remaining incidents do not rise to the level of conduct that is utterly
7
Interbake characterizes all of the incidents except the cookie incident
as facts supporting Boyce’s intentional infliction of emotional distress claim,
which Boyce does not dispute. See Docket 43 at ¶ 69. Boyce also appears to
argue that the cookie incident supports this claim. See Docket 82 at 10-12
(discussing the cookie incident in context of Boyce’s claims).
20
intolerable in our civilized community. Because no genuine issues of material
fact remain on the first element of the intentional infliction of emotional
distress test, summary judgment is granted on that claim.
CONCLUSION
Boyce alleges claims of retaliation and hostile work environment in
violation of Title VII and a state-law claim of intentional infliction of emotional
distress. Because Boyce cannot establish a prima facie case on any of these
claims, summary judgment is appropriate on all claims. Accordingly, it is
ORDERED that defendant’s motion to strike (Docket 94) is granted.
IT IS FURTHER ORDERED that defendant’s motion for summary
judgment (Docket 41) is granted.
IT IS FURTHER ORDERED that plaintiff’s motion for an order opposing
summary judgment against the defendant (Docket 52) is denied.
Dated August 26, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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