Cherry v. Siemens AG et al

Filing 56

ORDER granting 31 Motion for Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 3/31/15. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 13-5057-JLV

FARRELL CHERRY,
Plaintiff,

ORDER

vs.
SIEMENS HEALTHCARE
DIAGNOSTICS, INC.,
Defendant.

Plaintiff Farrell Cherry filed a multi-count amended complaint against the
defendant, Siemens Healthcare Diagnostics, Inc., his former employer. (Docket
8). Mr. Cherry alleges unlawful discrimination in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 20003 et seq., including disparate treatment and
disparate impact on the basis of race.1 Id. Defendant denies it discriminated
against Mr. Cherry. (Docket 17). This matter is presently before the court on
defendant’s motion for summary judgment as to all counts. (Docket 31).
Plaintiff resists defendant’s motion in its entirety. (Docket 46). For the reasons
stated in this order, defendant’s motion for summary judgment is granted.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if
the movant can “show[] that there is no genuine dispute as to any material fact

1The

amended complaint includes an allegation of disparate treatment on
the basis of race. (Docket 8 at ¶ 20). Mr. Cherry is not pursuing that claim.
(Dockets 33 at ¶ 172; 47 at ¶ 172).

and the movant is entitled to judgment as a matter of law.” Once the moving
party meets its burden, the nonmoving party may not rest on the allegations or
denials in the pleadings, but rather must produce affirmative evidence setting
forth specific facts showing a genuine issue of material fact exists. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that
might affect the outcome of the case under the governing substantive law will
properly preclude summary judgment. Id. at 248. Accordingly, “the mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in
original).
If a dispute about a material fact is genuine, that is, if the evidence is that
a reasonable jury could return a verdict for the nonmoving party, then summary
judgment is not appropriate. Id. However, the moving party is entitled to
judgment as a matter of law if the nonmoving party fails to “make a sufficient
showing on an essential element of her case with respect to which she has the
burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “There
can be ‘no genuine issue as to any material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 323.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
2

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). In order to withstand a motion for summary judgment, the
nonmoving party “must substantiate [her] allegations with ‘sufficient probative
evidence [that] would permit a finding in [her] favor on more than mere
speculation, conjecture, or fantasy.’ ” Moody v. St. Charles County, 23 F.3d
1410, 1412 (8th Cir. 1994) (citing Gregory v. Rogers, 974 F.2d 1006, 1010 (8th
Cir. 1992), cert. denied, 507 U.S. 913 (1993)). “A mere scintilla of evidence is
insufficient to avoid summary judgment.” Moody, 23 F.3d at 1412. The key
inquiry is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law.” Anderson, 477 U.S. at 251-52.
Once the moving party meets its burden, the nonmoving party may not
rest on the allegations or denials in the pleadings, but rather must produce
affirmative evidence setting forth specific facts showing a genuine issue of
material fact exists. Id. at 256; see also Thomas v. Corwin, 483 F.3d 516, 527
(8th Cir. 2007) (mere allegations, unsupported by specific facts or evidence
beyond a nonmoving party’s own conclusions, are insufficient to withstand a
motion for summary judgment); Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011) (en banc) (“The nonmovant must do more than simply show
that there is some metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine issue for trial. Where
the record taken as a whole could not lead a rational trier of fact to find for the
3

nonmoving party, there is no genuine issue for trial.”) (internal quotation marks
and citation omitted). The non-moving party’s own conclusions, without
supporting evidence, are insufficient to create a genuine issue of material fact.
Anderson, 477 U.S. at 256; Thomas, 483 F.3d at 527; Torgerson, 643 F.3d at
1042.
UNDISPUTED MATERIAL FACTS
The following recitation consists of the material facts undisputed by the
parties. These facts are developed from the amended complaint (Docket 8),
defendant’s answer (Docket 17), defendant’s statement of undisputed material
facts (Docket 33), and plaintiff’s response to defendant’s statement of
undisputed material facts and additional statement of undisputed material facts
(Docket 47). Where a statement of fact is admitted by the opposing party, the
court will only reference the initiating document.
Siemens Healthcare Diagnostics, Inc., (“Siemens”) employed twenty or
more employees for each working day during each of twenty or more calendar
weeks in the calendar years 2012 and 2013, and is a business affecting
commerce as defined under 29 U.S.C. § 630(h). (Docket 8 ¶ 4; 17 ¶ 4). Mr.
Cherry is an African-American. (Docket 8 ¶ 6). He commenced his
employment with Siemens in 19812 and was terminated on November 4, 2011.
(Docket 17 ¶ 9). Mr. Cherry was employed by Siemens as a senior field service
Mr. Cherry was originally hired as a field service technician by American
Hospital Supply Corporation which was later acquired by other companies and
ultimately by Siemens. (Docket 33 ¶ 4).
2

4

engineer and worked out of his home on Dark Canyon Road near Rapid City,
South Dakota.3 Id. ¶ 8.
Siemens has a long-standing policy to provide its employees with a
workplace free from unlawful discrimination and harassment, including
discrimination on the basis of race. Siemens provides a complaint procedure
through which employees are to report discriminatory or unlawful treatment
without retaliation. (Docket 33 ¶ 1). Mr. Cherry was aware of Siemens’ equal
employment opportunity and harassment free workplace policies. Id. ¶ 2. He
never reported or complained of race discrimination to Siemens during his
employment, although he claims he did not do so because he feared losing his
job and suffering retaliation. (Dockets 33 ¶ 3; 47 ¶ 3).
Siemens is highly regulated by the Food and Drug Administration (“FDA”).
(Docket 33 ¶ 7). Proper documentation and recordkeeping, including service
call closures, permanent device records, and compliance training are important
to Siemens and the FDA. Id.; see also Docket 47 ¶ 7. Regional Service
Manager Blaine Raymer became Mr. Cherry’s supervisor in February 2008.
(Docket 33 ¶ 20). At that time, Mr. Cherry was a senior engineer or Service
Technician II, and his job duties included instrument repair, instrument

Other field service engineers also worked remotely from their homes.
(Docket 33 ¶ 6).
3

5

documentation, installation, MODs,4 preventative maintenance, customer
satisfaction, and problem resolution. Id. ¶ 21.
Mr. Raymer’s first performance review of Mr. Cherry was in 2009 for the
calendar year 2008. (Dockets 33 ¶ 26; 47 ¶ 26). Mr. Raymer’s 2009
performance review gave Mr. Cherry an overall rating of 3.21 or “Achieved.”
(Dockets 33 ¶ 27; 47 ¶ 27). In this review, Mr. Raymer provided positive
feedback regarding Mr. Cherry’s performance. Mr. Raymer complimented him
on customer service, work ethic, call escalation, and noted Mr. Cherry was
making “great strides” in completing “administrative duties in a timely manner.”
(Docket 33 ¶ 28). Mr. Cherry felt the majority of Mr. Raymer’s comments in the
2009 review were good, but there were some comments with which he disagreed.
(Docket 47 ¶ 29).
In the 2010 performance review for the calendar year 2009, Mr. Raymer
gave Mr. Cherry an overall rating of 2 or “Partially Achieved.” (Docket 33 ¶ 30).
In this review, Mr. Raymer praised Mr. Cherry for having “extreme drive to satisfy
customers” but also noted “negative feedback from peers5 regarding attention to
detail and troubleshooting approach,” “consistent late and poor quality admin

MODs are a form of customer service provided by Siemens which involved
working with machinery or equipment to improve performance or to address
safety and FDA issues. (Dockets 33 ¶ 22; 47 ¶ 22).
4

Mr. Cherry believes the only peer referenced was Mr. Eide, another
employee supervised by Mr. Raymer. (Docket 47 ¶ 31).
5

6

[sic] duties,” and “written warning to address admin [sic] deficiencies with
minimal progress to improve performance.” Id. ¶ 31.
In the 2011 performance review for the calendar year 2010, Mr. Raymer
gave Mr. Cherry an overall rating of 2 or “Partially Achieved.” Id. ¶ 32. In this
review, Mr. Raymer complimented Mr. Cherry for “work[ing] well with sales and
technical partners,” “provid[ing] highly responsive service in his territory,” and
having “a willingness to do whatever it takes to fix a customer.” Id. ¶ 33. Mr.
Raymer noted Mr. Cherry’s “administrative work is poor quality. Kronos6 time
reporting is often inaccurate and much follow up is required. Expense reports
come sporadically and have been rejected for inaccuracies.” Id. Mr. Raymer
also wrote:
Farrell [Cherry] needs much greater focus on details. Farrell needs
to change his bad work habits. Farrell needs to take ownership for
everything that he is responsible for as Farrell always has excuses
for not completing tasks in the time allowed, such as AT&T doesn’t
work out here, my internet doesn’t work at my house, my Prism7 is
broken, my computer isn’t working, I can’t log on, I’ve taken the
training eight times and it still says due. Farrell was paid 66 and a
quarter hours for @helpdesk this past year which has not mitigated
his IT challenges or excuses. Farrell occasionally completes Kronos
time reporting correctly the first time. Farrell had a very stable
territory to cover this year with zero incremental performance
improvement. Farrell creates additional work for many. The call
KRONOS is a system to document the amount of time spent on service
calls. (Docket 47 ¶236).
6

7PRISM

is a portable wireless device implemented in 2010 that enabled
Field Service Engineers to complete service reports and wirelessly transmit
information regarding service calls, including call closures. (Docket 33 ¶ 52).
Mr. Cherry got a replacement PRISM device after he requested one, without
having Mr. Raymer intervene on his behalf. Id. ¶ 54.
7

center makes additional contact frequently to get ETA information.
Calls closed can be inaccurate as Farrell is always working in the
past. . . .
Farrell provides highly responsive service in his territory, mainly to
one account at Rapid City Regional. Farrell had 456 hours of
overtime, 40.5 percent of his OT, overtime, was due to weekend
service as he is on call 50 percent of the time. The inability to
maintain uptime at medium volume accounts continues the need for
localized on call. Farrell has a willingness to do whatever it takes to
fix a customer. In one instance he was willing to get parts locally as
a StreamLab wiring harness was not available and the customer was
down for several days.
Unfortunately the problem was
misdiagnosed and a fuse needed to be replaced.
(Docket 47 ¶¶ 240 & 302). Mr. Cherry received and signed off on his 2011
performance review.8 (Docket 33 ¶ 34). Mr. Cherry admits he received praise
from Mr. Raymer and that he put Mr. Cherry up for an “attaboy” from Siemens
when he performed well. Id. ¶ 24.
In October 2011, Siemens decided to conduct a reduction in force (“RIF”)
because of a lack of sales growth and for other business reasons, including a
need to become more competitive in its pricing.9 Id. ¶ 59. The RIF was a
company-wide initiative and impacted all business units. Id. ¶ 60. Siemens
planned to reduce the employee count in the Sales, Service & Technical Group by
approximately 113 out of a total decisional unit of approximately 940
8Mr.

Cherry claims he did not actually get a chance to read his 2011
evaluation as he was troubleshooting an instrument at the same time and just
signed off on the review because there was a time constraint involved. (Docket
47 ¶ 34).
Mr. Cherry acknowledged these business reasons existed to justify a RIF,
but claims it also had to occur because Siemens had merged three companies
and was top heavy on management. (Docket 47 ¶ 59).
9

8

employees.10 Id. That same month senior management instructed vice
presidents, including Larry Camela then-Vice President of Service for the United
States and Canada, that they would have to reduce employee count. Id. ¶ 61.
Shortly after Mr. Camela learned of the RIF, Service Director David Siebert,
who was Mr. Raymer’s direct supervisor and who reported to Mr. Camela, was
informed of the RIF. Id. ¶ 63. Mr. Camela and Mr. Siebert were bound by a
confidentiality agreement that prohibited sharing information regarding the RIF
with employees below Director level during the decision-making process. Id.
¶ 64. At the time the RIF selections were made, Mr. Camela’s territory was
designed as the West, Northeast, Southeast, and Central Regions and employed
667 field service engineers.11 Id. ¶ 85. Mr. Siebert’s territory, the Central
Region, included South Dakota, Minnesota, Wisconsin, Illinois, Michigan and

Mr. Cherry’s response to the defendant’s statement of material facts often
indicated either “not disputed” or “partially disputed” and then offers additional
information. See i.e., Docket 47 ¶¶ 60 & 65. Mr. Cherry’s additional facts will
be included where appropriate in the presentation of the undisputed material
facts.
10

11Mr.

Cherry acknowledges he has no basis to dispute Siemens’ data but
objects to the inclusion of this information as being immaterial for summary
judgment purposes. (Docket 47 ¶ 85). Mr. Cherry did not conduct any
discovery relating to Siemens’ RIF racial demographics data. (Dockets 33 ¶ 82;
47 ¶ 82). Furthermore, Mr. Cherry has not filed a motion under Fed. R. Civ. P.
56(d) seeking additional time to conduct discovery in this area. Both Rule 56(e)
and D.S.D. Civ. LR 56.1(B) require a party to identify and refute an opposing
party’s statement of undisputed material fact. A statement of material fact “will
be deemed to be admitted unless controverted by the opposing party’s statement
of material facts.” LR 56.1(D). Mr. Cherry’s objections to all of Siemens’ racial
demographics data are overruled.

9

Indiana. Id. ¶ 156. Mr. Raymer’s territory included Minnesota, North Dakota,
South Dakota, Wisconsin, Wyoming, Nebraska and portions of Iowa. Id. ¶ 92.
Mr. Camela worked with Human Resources (“HR”) to confirm the criteria to
be applied in selecting employees for inclusion in the RIF. He was on a
corporate team which determined the number of field service employees to be
included in the RIF. Id. at ¶ 65. The primary criterion agreed upon for
selection of employees to be included in the RIF was performance, and directors
were instructed to consider employee performance over the course of the past
three (3) years. Id. at ¶ 68. Only if a decision could not be made based on
performance were other criteria such as seniority to be considered. Id. at ¶ 69.
Overtime, customer evaluations, skill sets and salary information were not
considered in RIF selection criteria. Id. ¶ 70. The identification of individual
employees to be included in the RIF in Mr. Camela’s territory was the
responsibility of directors, including Mr. Siebert. Id. ¶ 66.
Mr. Siebert was informed he needed to select five employees from the units
under his supervision to be included in the RIF. Id. at ¶ 67. Mr. Siebert
testified he worked with HR Business Partner Michael Bolinger and Mr. Camela
in selecting the employees in his territory who were to be included in the RIF.12
Id. ¶ 71. Mr. Siebert obtained permission to include in his RIF numbers two
employees who had elected to retire. Id. ¶ 72. Mr. Siebert based his decision
Mr. Bolinger does not recall any discussions with Mr. Siebert about the
RIF. (Docket 47 ¶ 71). Mr. Bolinger did have discussions with Mr. Camela
about Mr. Siebert’s employee choices for inclusion in the RIF. Id.
12

10

solely on performance, without considering seniority, and chose the three lowest
performers in his region for inclusion in the RIF. Id. ¶ 73. The three employees
chosen by Mr. Siebert for RIF termination were Mr. Cherry and two employees
who were white. Id. ¶ 81. Mr. Camela and Mr. Siebert discussed the reasons
to RIF each employee selected. Id. ¶ 74. Mr. Camela had to meet certain
percentage targets, so he let directors like Mr. Siebert select the candidates for
inclusion in the RIF. (Docket 47 ¶ 74).
Mr. Raymer had no knowledge of Siemens’ plans to implement the RIF
until November 2, 2011–after employees who were to be included in the RIF had
already been selected by directors and approved by vice presidents and HR. Id.
¶ 89.13 Mr. Siebert assigned Mr. Raymer the task of notifying Mr. Cherry of his
termination under the RIF. Id. ¶ 95. On November 4, 2011, Mr. Raymer
informed Mr. Cherry his employment was being terminated pursuant to the RIF.
Id. ¶ 96.
Of 495 Caucasian field service engineers, 32 were included in the RIF. Id.
¶ 87. Of 50 African-American field service engineers, 3 were included in the
RIF, including Mr. Cherry. Id. ¶ 86. In the Central Region where Mr. Cherry
was employed, he was the only African-American senior field service engineer
selected for the RIF. Id. ¶ 88. Six Caucasian employees in the Central Region

Plaintiff’s objection and references to the record do not address the fact
stated. (Docket 47 ¶ 89). See also D.S.D. Civ. LR 56.1(D).
13

11

were selected for the RIF. Id. The RIF resulted in the termination of 86
employees of Sales, Service & Technical Group.14 Id. ¶ 62.
Mr. Cherry believes he was terminated because of his race.15 (Docket 8
¶ 20). At the time of his termination, Mr. Cherry was qualified for the Senior
Field Service Engineer position he held with Siemens. (Docket 47 ¶ 179).
Defendant admits Mr. Cherry was terminated as a part of the RIF and not
because of any specific misconduct or policy violation by plaintiff. Id.
Mr. Cherry had been Siemens’ only field service engineer in the Rapid City
and western South Dakota area for years. Id. ¶ 182. Dave Eide was hired by
Siemens in 2008. Id. ¶ 183. Shortly after being hired as a co-worker of Mr.
Cherry in Rapid City, Mr. Eide began to constantly criticize plaintiff to Mr.
Raymer, their mutual supervisor. Id. ¶ 186. Mr. Eide complained he had to
work weekends because plaintiff did not thoroughly fix his instruments, did not
have the best technical skills, was not good at preventative maintenance, did not
have the right work ethic, particularly to fix a problem the first time around, his
efficiency was poor, and plaintiff just put band-aids on equipment to get it

14The

remainder of the reduction in employee count for the Sales, Service
& Technical Group was achieved through other forms of attrition including
retirement and not backfilling separated employees. (Docket 33 ¶ 62). Other
business units had similar reductions in force. Id.
Because the facts and inferences from those facts must be viewed in the
light most favorable to Mr. Cherry, the nonmoving party, the court includes the
following disputed material facts submitted by plaintiff. Matsushita Elec.
Indus. Co., 475 U.S. at 587-88.
15

12

running and move on to another customer. Id. ¶ 187. Mr. Eide often shared
his opinions with Mr. Raymer. Id.
On February 26, 2009, Mr. Eide distributed to Mr. Cherry, Mr. Raymer
and other field service engineers an e-mail containing a photograph of a grill in
the shape of a handgun. Id. ¶ 219. The front of the photograph had the
following notation: “You must be a redneck if you own one of these. Sign me
up.” Id. When Mr. Cherry asked Mr. Eide if he was a redneck, he replied “I
kind of -- I can relate to some of Jeff Foxworthy’s comments, I grew up in South
Dakota in a rural area on a farm. Most of us were probably born kind of -- with
a redneck -- and [the] same thing with western South Dakota.” Id.
In March 2010 during a company dinner, Mr. Cherry was next to Mr.
Siebert. Id. ¶ 226. Mr. Seibert asked a question regarding the new PRISM
system. Id. As Mr. Cherry was explaining his thoughts about the system, he
was rudely interrupted by Mr. Raymer who stated plaintiff never did anything
right and if he would just do his work, he would get it done. Id. Mr. Cherry was
upset by Mr. Raymer’s comments and walked away. Id.
During the training session which occurred the same week, Mr. Raymer
asked Mr. Tuck, a Caucasian co-worker, to “make sure you take care of [Mr.
Cherry] and make sure he gets to and from the meeting.” Id. ¶ 227. Mr.
Raymer’s comment was made in front of Mr. Siebert and Mr. Cherry, as well as
other co-workers. Id. Mr. Cherry felt embarrassed and humiliated by the
comment. Id.
13

Mr. Raymer typically used first names of other employees but when
addressing plaintiff, Mr. Raymer often said “ ‘Mr. Cherry’ in a very derogatory
way, like you might as well have been using the N word.” Id. ¶ 229. Mr. Cherry
thought Mr. Raymer’s tone of voice was very derogatory. Id.
On March 26, 2011, Mr. Eide sent out an e-mail which showed the USS
Ronald Regan as an aircraft carrier, the USS Bill Clinton as a smaller warship
with a single airplane on it, and the USS Barack Obama with a jackass inside a
small fishing boat and a declaration “Details are vague, but don’t you worry, he
has a plan.” Id. ¶ 220. When asked about this e-mail Mr. Eide admitted he got
a good laugh out of it and that he was entitled to his own opinion. Id.
On Mr. Cherry’s thirtieth anniversary with Siemens, Mr. Raymer sent a
congratulatory e-mail to him. (Docket 33 ¶ 130). Included in the e-mail was a
picture of Mt. Rushmore with Mr. Cherry’s head superimposed over the head of
President Washington. (Dockets 33 ¶ 130; 47 ¶ 131). Mr. Raymer testified he
intended the e-mail to be congratulatory and complimentary. (Docket 134).
Mr. Cherry felt the e-mail was racially motivated because George Washington
was a known slave owner. (Docket 47 ¶ 131). Mr. Cherry also felt the e-mail
was discriminatory because it was different than the anniversary e-mails sent by
Mr. Raymer to other employees. (Docket 33 ¶ 132). In those e-mails, the
employees’ pictures were superimposed on a motorcycle, car or snowboard. Id.
On another occasion Mr. Cherry and his wife were seated with Mr. Eide at
a company dinner. (Docket 47 ¶ 222). Mr. Eide was telling a derogatory story
14

about his daughter’s significant other, who was African-American, and kept
repeating over and over “but not because he’s Black.” Id. Mr. Eide’s wife
became embarrassed, took over and finished the story. Id.
At a company dinner in September 2011, Mr. Cherry was with Mr. Raymer,
Mr. Eide and two other employees from the Centaur Implementation team. Id.
¶ 224. Mr. Raymer made the comment, “I wish you were more like Dave Eide.”
Id. When Mr. Cherry asked for an explanation, Mr. Raymer paused for a long
time and said “ride a motorcycle.” Id. Mr. Cherry felt everyone at the table was
astonished by these comments and he left shortly thereafter. Id.
When asked if he ever complained to Siemens or HR, Mr. Cherry testified “I
was afraid of my job. I just wanted to . . . take the whipping and just go back to
work is what I did.” Id. ¶ 230. Because of a previous comment by Mr. Raymer,
plaintiff felt he would be “thrown under the bus [Mr. Raymer’s words].” Id. Mr.
Cherry felt he had “no hope of surviving something like that.” Id. Mr. Cherry
never filed a complaint with HR or anyone in Siemens. (Docket 33 ¶ 3).
Mr. Raymer testified he was aware of complaints from Mr. Eide pertaining
to plaintiff’s work ethic, skills or qualities as an employee. (Docket 47 ¶ 191).
Mr. Raymer admitted he never independently verified Mr. Eide’s complaints
about plaintiff. Id. Mr. Raymer acknowledged his criticism of plaintiff’s
performance improvement efforts was almost continual. (Docket 47 ¶ 231).
On June 23, 2010, Mr. Raymer issued a warning letter to Mr. Cherry. Id. The
areas needing improvement were: (1) closing calls in a timely manner; (2)
15

completion of compliance training; (3) MOD documentation; (4) Kronos
documentation; (5) expense reporting; and (6) call escalation. Id. Mr. Cherry’s
response to each of these directives is summarized:
(1)

Mr. Cherry had constant problems with his equipment,
particularly the new Prism device which came out
earlier that year. He thought his service calls were
closed as the system showed them as closed. Later he
received a report or a call from Mr. Raymer and found
out the calls were not closed. Mr. Cherry would then
go back and address the unclosed service call issue.
Id. ¶ 232;

(2)

Mr. Raymer knew plaintiff completed compliance
training but could not print the certificates because of
his computer problems. After several printing
attempts Mr. Cherry submitted the certificates to the
training department. Id. ¶ 233;

(3)

Mr. Cherry completed most of his MODs, but because of
his computer problems could not either access the MOD
to complete it or log the completion information on the
system. Id. ¶¶ 234-35;

(4)

Mr. Cherry claimed the KRONOS system was plagued
with authorization errors. Because of equipment
malfunction issues, he could not always accurately
record service call time. Mr. Cherry claimed he was
completing service calls, but documenting the work was
either late or could not be done because of his computer
issues. Id. ¶ 236;

(5)

Because of his computer problems, Mr. Cherry had the
same reporting difficulties with his expense reports.
He worked with the help desk several times a day
seeking assistance with the problem. Id. ¶ 237; and

(6)

Mr. Cherry disputed the charge he failed to properly
escalate service calls. His 2009 performance
evaluation indicated he “escalates situations
appropriately . . . .” Mr. Cherry addressed the issue
with Regional prior to his performance review, tests
16

indicated the system was fully operational, and he
informed both Mr. Raymer and Mr. Eide of this. Id.
¶ 238.
Mr. Cherry did not talk with either Mr. Siebert or Judy Bowers of HR about the
warning letter, even though the letter indicated both of them received copies.
(Docket 33 ¶¶ 126-27). Unless further improvement plan steps are instituted, a
performance improvement plan expires 45 days after its issue date. (Docket 47
¶ 267). Mr. Cherry’s performance improvement plan expired on or about
August 8, 2010. Id.; see also id. ¶¶ 283-84.
Mr. Cherry asked Mr. Raymer and the help desk for a new computer all the
time. Id. ¶ 245. Mr. Cherry blames his issues with paperwork, call cycle times,
arrival times, time reporting, and untimely processing of his performance review
on problems with his laptop. (Docket 33 ¶ 46). Mr. Raymer testified he did not
have to sign off on a new computer for Mr. Cherry because that was a function of
the help desk. (Docket 47¶ 258). Mr. Siebert testified the help desk could not
order a new computer because that type of request needed to be made by a
manager such as Mr. Raymer. Id. ¶ 259. When Mr. Eide reported his
computer problems to Mr. Raymer, a new computer was delivered the next day.
Id. ¶ 258. Mr. Cherry asked for a new computer for three years and finally got
one two weeks before his termination. Id. ¶ 249.
Rapid City Regional Hospital was among the top ten customers for
Siemens in the entire Central Region and the largest account in South Dakota.
Id. ¶ 195. When Mr. Raymer suggested removing Mr. Cherry and making Mr.
17

Eide the primary service technician for the hospital laboratory, the hospital flatly
refused. Id.
Internal Siemens’ reports for April 2010 and June 2011 identifying the
bottom three field engineers in the Central Region included Mr. Eide as the
lowest rated field engineer. Id. ¶ 210. Mr. Cherry was not on the list. Id. A
later draft of the June 2011 report identified Mr. Eide as the second lowest rated
engineer and Mr. Cherry as the lowest rated engineer in the Central Region.16
Id. ¶ 211.
As another example of his relationship with Mr. Raymer, Mr. Cherry
described an event in September 2011. Mr. Raymer traveled to Rapid City to
assist with the installation of a piece of equipment known as a “StreamLab.” Id.
¶ 201. Siemens’ Centaur equipment was supposed to be set up to deliver
samples to StreamLab. Id. Although he was not trained on the Centaur
equipment, Mr. Cherry worked all night on the unit and ran into issues with the
new equipment. Id. At 5 a.m., Mr. Cherry left a message on Mr. Raymer’s cell
phone about the difficulties being encountered and seeking assistance. Id.
Mr. Raymer did not return Mr. Cherry’s call until about 9 a.m. after Mr. Raymer
was already on the road back to Minneapolis. Id. ¶ 202. Mr. Cherry felt this
response was a slight from his supervisor as Mr. Raymer was in Rapid City to
work on this project and should have assisted plaintiff with the equipment

16

Neither party provided any factual information explaining this change.
18

installation. Id. Mr. Cherry felt he was being set up to fail by Mr. Raymer. Id.
¶ 203.
Mr. Raymer frequently complained to Mr. Eide and other Siemens’
employees about Mr. Cherry not getting his administrative work completed in a
timely fashion. Id. ¶ 205. In the year or so preceding his termination, Mr.
Cherry was described as a problem employee. Id. Mr. Siebert testified Mr.
Raymer frequently make negative comments about plaintiff’s lack of the ability to
complete his administrative responsibilities. Id. ¶ 207. Mr. Siebert agreed it
was fair to say Mr. Raymer was not giving Mr. Cherry the benefit of the doubt at
that point in time on anything regarding plaintiff’s equipment problems. Id.
On September 9, 2011, Mr. Siebert sent an e-mail to Mr. Raymer asking for
an Excel spread sheet on employees in the Central Region with current
performance improvement plans. Id. ¶ 214. That evening Mr. Raymer sent Mr.
Siebert an Excel spread sheet listing Mr. Cherry as the only employee on a
current performance improvement plan even though it had expired in
mid-August 2011.17 Id. ¶ 267.
On October 15, 2011, Mr. Siebert sent an e-mail asking for 2011
performance evaluations (“PMPs”) for Mr. Raymer’s employees. Id.

In his

response that same day, Mr. Raymer forwarded Mr. Cherry’s PMP. Id. ¶ 218.

Mr. Eide received a warning letter from Mr. Raymer on May 26, 2010, for
his on-the-job driving record. (Docket 47 ¶ 285). This performance
improvement plan expired on or about July 11, 2010. It was not forwarded by
Mr. Raymer to Mr. Siebert.
17

19

In the e-mail Mr. Raymer stated, “I saved Farrell [Cherry] for last . . . well actually
I had to, as it took constant asking for his PMP form. His personal perspective
pretty much sums up the quality of all he does.” Id. In making his decision to
include Mr. Cherry in the RIF, Mr. Siebert relied on Mr. Raymer’s 2011
performance review of Mr. Cherry.18 Id.
Once Mr. Siebert developed his RIF list, he shared the information with Mr.
Camela and Mr. Bolinger. Id. ¶ 269. Mr. Bolinger asked Mr. Siebert about any
written confirmation two employees were retiring and verifying Mr. Cherry was
on a written performance improvement plan. Id. According to Mr. Bolinger,
performance improvement status was not a criteria for preparation of the RIF.
Id. ¶ 270. Mr. Camela never informed Mr. Bolinger that Mr. Cherry had more
seniority than Mr. Eide or that Mr. Cherry could fix more instruments than Mr.
Eide. Id. ¶ 272. Mr. Bolinger would only consider seniority if there was a tie to
the performance evaluation criteria. Id. ¶ 275. As a secondary criteria, if one
employee had longer tenure, the newest employee would be slated for
termination. Id. Mr. Bolinger never considered having an outsider
independently verify the RIF process for fairness and objectivity. Id. ¶ 274.
As early as 1982, Mr. Cherry received written notifications from and had
discussions with his then-supervisor Mike Watrak regarding the “big problem” of
Mr. Cherry does not believe Mr. Siebert did anything to him which was
racially discriminatory. (Docket 33 ¶ 100). Mr. Cherry asserts, by Mr. Siebert
accepting Mr. Raymer’s negative and derogatory portrayal of plaintiff, the two of
them were acting in concert, whether consciously or unconsciously, resulting in
a discriminatory act. (Docket 47 ¶ 100).
18

20

“timely submission of required paperwork and reports.”19 (Docket 33 ¶ 9). Mr.
Cherry’s 1982 performance review noted he “must improve in all areas of
paperwork,” including accuracy, completeness, and timeliness; his
organizational skills were a shortcoming; and he did not react well to
constructive criticism, making it difficult to solve problems. Id. ¶ 14. On
September 22, 1983, Mr. Watrak issued a written warning to Mr. Cherry because
of his poor paperwork habits and placed him on a period of probation, during
which he was required to timely and accurately submit his paperwork, as
“paperwork drives the payroll system, properly records expenses and generates
billings,” and is therefore “an important part of [Mr.] Cherry’s job.” Id. ¶ 11.
Mr. Cherry’s problems with administrative duties and paperwork
continued to surface through the 1980s, 1990s, and 2000s. Id. ¶ 16. Wayne
Bath, another former supervisor, spoke with Mr. Cherry about late paperwork,
the need to improve the accuracy of paperwork and the need to prioritize his time
to ensure paperwork was completed. Id. ¶ 15. On May 11, 1990, Mr. Cherry
was issued another written warning in connection with his untimely and
inaccurate administrative duties. Id. ¶ 17. Mr. Bath’s March 2001 annual
review of Mr. Cherry noted his “remaining obstacle continues to be
administrative performance, specifically, meeting deadlines related to certain
reports and functions.” Id. ¶ 18. Mr. Bath advised Mr. Cherry his “primary
Ordinarily, historical performance evaluations would not be pertinent.
Because plaintiff raises an issue about Mr. Raymer’s objectivity in evaluating Mr.
Cherry, his challenge makes these historical evaluations relevant to the analysis.
19

21

areas of focus” in 2001 should include a goal to “meet all administrative
deadlines—especially those related to call closure and expense reporting.” Id.
Mr. Cherry never perceived Mr. Bath’s comments to be racist but as
supportive in helping improve his work performance. Id. ¶ 19. Mr. Cherry
admits having issues with not completing paperwork in a timely fashion before
being supervised by Mr. Raymer. Id. ¶ 35. Mr. Cherry believes his heavy
workload and having a large territory were the cause of these earlier problems.
Id. ¶ 36.
DISCUSSION
“Title VII of the Civil Rights Act of 1964 (Title VII) makes it an unlawful
employment practice for an employer to ‘discharge any individual . . . because of
such individual’s race, color, religion, sex, or national origin.’ ” Twymon v. Wells
Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006) (citing 42 U.S.C. § 2000e-2(a)(1)).
For Mr. Cherry “[t]o establish a prima facie case of race discrimination, [he] must
show that [he]: (1) is a member of a protected class; (2) was meeting [his]
employer’s legitimate job expectations; (3) suffered an adverse employment
action; and (4) was treated differently than similarly–situated employees who
were not members of [his] protected class.” Norman v. Union Pacific R.R. Co.,
606 F.3d 455, 461 (8th Cir. 2010).
To survive defendant’s motion for summary judgment, Mr. Cherry has two
avenues available to him. “The first is by proof of ‘direct evidence’ of
discrimination.” Torgerson v. City of Rochester, 643 F.3d 1031, 1044 (8th Cir.
22

2011 (en banc) (citing Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th
Cir. 2004)). “[D]irect evidence is evidence showing a specific link between the
alleged discriminatory animus and the challenged [conduct], sufficient to
support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated the adverse employment action.” Id. (citing Griffith, 387
F.3d at 736) (additional internal citation and quotation marks omitted).
“ ‘[D]irect’ refers to the causal strength of the proof, not whether it is
‘circumstantial’ evidence.” Id. (citing Griffith, 387 F.3d at 736). “[I]f the
plaintiff lacks evidence that clearly points to the presence of an illegal motive,
he must avoid summary judgment by creating the requisite inference of
unlawful discrimination through the McDonnell Douglas20 analysis, including
sufficient evidence of pretext.” Id. (citing Griffith, 387 F.3d at 736).
Under the burden-shifting framework of McDonnell Douglas, “a Title VII
plaintiff has the initial burden of establishing a prima facie case of race
discrimination.” Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th
Cir. 1998). If Mr. Cherry “is successful in establishing a prima facie case, a
rebuttable presumption of discrimination arises.” Id. “The burden then shifts
to the defendant, who must articulate a legitimate, nondiscriminatory reason for
the adverse employment action.” Id. The employer’s “burden to articulate a
nondiscriminatory justification is not onerous, and the explanation need not be
demonstrated by a preponderance of the evidence.” Rodgers v. U.S. Bank, N.A.,

20

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
23

417 F.3d 845, 853 (8th Cir. 2005) (internal citation and quotation marks
omitted) abrogated on other grounds by Torgensen v. City of Rochester, 643 F.3d
1031 (8th Cir. 2011). “Once the employer articulates such a reason, the
presumption of discrimination disappears entirely and the plaintiff bears the
burden of proving that the employer’s proffered reason is merely a pretext for
discriminatory animus.” Rose-Maston, 133 F.3d at 1107. “[T]he ultimate
burden falls on [Mr. Cherry] to produce evidence sufficient to create a genuine
issue of material fact regarding whether [the employer’s] proffered
nondiscriminatory reason is a pretext for discrimination.” Rodgers, 417 F.3d
at 853.
“There are at least two ways a plaintiff may demonstrate a material
question of fact regarding pretext.” Torgerson, 643 F.3d at 1047. First, “that
the employer’s explanation is unworthy of credence . . . because it has no basis in
fact.” Id. “Alternatively, a plaintiff may show pretext by persuading the court
that a [prohibited] reason more likely motivated the employer.” Id. “Either
route amounts to showing that a prohibited reason, rather than the employer’s
stated reason, actually motivated the employer’s action.” Id.
“Proof of pretext, coupled with a strong prima facie case, may suffice to
create a triable question of fact.” Id. at 1046. “To defeat summary judgment,
[Mr. Cherry] must produce sufficient evidence from which a reasonable factfinder
could infer discrimination.” Id. at 1050.

24

“At the prima facie stage of the McDonnel Douglas burden-shifting
framework, [the court uses a] low-threshold standard for determining whether
employees are similarly situated.” Rodgers, 417 F.3d at 852. “The burden of
establishing a prima facie case of disparate treatment is not onerous.” Id.
(citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981)). Under either test, plaintiff must show he suffered an “adverse
employment action.” Norman, 606 F.3d at 460. Without question, termination
is an “adverse employment action.” Id.
Concerning Mr. Cherry’s claim, “[a]n employee may establish unlawful
employment discrimination through direct or indirect evidence.” Takele v. Mayo
Clinic, 576 F.3d 834, 838 (8th Cir. 2009) (internal citation omitted). Evaluating
a direct evidence claim, the court “appl[ies] the mixed-motives analysis of Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . .” Yates v. Douglas, 255 F.3d
546, 548 (8th Cir. 2001). “To be entitled to this direct-evidence analysis,
however, [plaintiff] must present ‘evidence of conduct or statements by persons
involved in the decision-making process that may be viewed as directly reflecting
the alleged discriminatory attitude sufficient to permit the factfinder to infer that
that attitude was more likely than not a motivating factor in the employer’s
decision.’ ” Id. at 548-49 (quoting Rivers-Frison v. Southeast Missouri
Community Treatment Ctr., 133 F.3d 616, 619 (8th Cir.1998) (citation omitted)).
Mr. Cherry signed off on his 2011 performance evaluation. Whether he
did so with full knowledge of the contents of the evaluation or simply because he
25

was too busy to read the document does not change the analysis. Because he
did not object to or comment upon his evaluation, there was no reason for Mr.
Siebert to know or suspect that Mr. Raymer may have consciously or
subconsciously given Mr. Cherry a negative evaluation, in whole or in part,
because of his animus toward plaintiff, an African-American.
Mr. Siebert was the decisionmaker as to which employees in his unit
would be terminated under the RIF. Mr. Cherry acknowledges Mr. Siebert made
no discriminatory statements about him. Rather, Mr. Cherry seeks to attach
any allegedly improper statements or actions by Mr. Raymer to Mr. Siebert either
by conscious or unconscious concert. (Docket 46 at pp. 23 & 33).
“ ‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’
‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated
to the decisional process itself.’ ” Browning v. President Riverboat CasinoMissouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (quoting Price Waterhouse, 490
at 277). “[N]o reasonable fact-finder could find that the comments in question
are direct evidence that race discrimination actually motivated [Siemen’s]
decision to terminate [Mr. Cherry].” Putman v. Unity Health Systems, 348 F.3d
732, 735 (8th Cir. 2003). Mr. Cherry presents no direct or indirect evidence of
discrimination. The court must apply the McDonnell Douglas framework. Id.
Under the burden shifting framework of McDonnell Douglas, Mr. Cherry
“has the initial burden of establishing a prima facie case of race discrimination.”
Rose-Maston, 133 F.3d at 1107. “To present a prima facie case of
26

discriminatory discharge, [plaintiff] was required to show ‘that [he] was a
member of a protected class, that [he] was qualified for the position, and that
despite [his] qualification [he] was [terminated].’ ” Id. at 1008 (citing Ruby v.
Springfield R–12 Public School District, 76 F.3d 909, 911 (8th Cir. 1996). “In
reduction-of-force cases, [the court] require[s] ‘some additional showing’ that
discrimination was a factor in the termination.” Putman v. Unity Health
System, 348 F.3d 732, 736 (8th Cir. 2003). For purposes of the summary
judgment analysis, the court will presume Mr. Cherry’s evidence establishes a
prima facie case, “thus creating a rebuttable presumption of discrimination.”
Rose-Maston, 133 F.3d at 1107.
The burden under McDonnell Douglas then shifts to Siemens “to articulate
a legitimate, nondiscriminatory reason for the adverse employment action.”
Colenburg, 619 F.3d 986, 992 (8th Cir. 2010) (internal citation omitted). The
court does “not sit as a super-personnel department to review the wisdom or
fairness of [Siemens’] job-elimination policies during the RIF.” Wallace v.
Sparks Health System, 415 F.3d 853, 860 (8th Cir. 2005).
Siemens presented undisputed financial and statistical evidence
indicating the RIF was conducted for legitimate business reasons on a
nondiscriminatory basis. Colenburg, 619 F.3d at 992. Siemens showed its
decision to terminate Mr. Cherry as part of the RIF was “racially neutral, fair and
based on business necessity.” Henry v. Ford Motor Co., 553 F.2d 46, 49 (8th
Cir. 1977) (internal reference omitted). “A proffered legitimate, non27

discriminatory reason for termination need not, in the end, be correct if the
employer honestly believed the asserted grounds at the time of the termination.”
Twymon, 462 F.3d at 935.
“When an employer articulates a nondiscriminatory reason for an
employee’s discharge . . . the factual inquiry proceeds to a new level of
specificity.” Rahlf v. Mo-Tech Corp., 642 F.3d 633, 638 (8th Cir. 2011) (internal
quotation marks omitted). “To prove pretext, a plaintiff must both discredit an
employer’s asserted reason for termination and show that the circumstances
permit drawing the reasonable inference that the real reason for terminating the
plaintiff was [his] race.” Twymon, 462 F.3d at 935. Mr. Cherry “must produce
some evidence creating a genuine issue of fact as to whether . . . [Siemens’]
harbored a discriminatory intent.” Johnson v. Baptist Medical Center, 97 F.3d
1070, 1073 (8th Cir. 1996). See also U.S. Postal Service Board of Governors v.
Aikens, 460 U.S. 711, 715 (1983) (“The factual inquiry in a Title VII case is
whether the defendant intentionally discriminated against the plaintiff.”)
(internal quotation marks omitted).
Mr. Cherry claims his supervisor Mr. Raymer and co-worker Mr. Eide were
racially discriminatory on an “unconscious” level. (Docket 46 at p. 23). Mr.
Cherry argues “the selection of Plaintiff as one of the employees to be terminated
. . . . [was] motivated by racial animus from both his supervisor Raymer and from
his co-worker Eide, acting separately and in concert with each other─even if their
cooperation was partially conscious and partially unconscious, and/or if it was
out of a shared belief about white privilege or negative feelings about
African-Americans, and/or with different intent as to the results.” Id. Plaintiff

28

continues the argument by asserting “Raymer’s (and Eide’s) under-the-radar
campaign in the evaluations and warning letter/performance improvement plan
of 2010 helped Siebert and Camela to be able to suggest that they had no clue
anything unlawful was occurring─and that the RIF was just based on ‘neutral
criteria.’ ” Id. at p. 33.
An argument of subjective, subconscious discrimination by one or more
lower level employees of Siemens, without supporting evidence showing an
intentional discrimination by decisionmakers Mr. Siebert and Mr. Camela,
cannot satisfy plaintiff’s obligation to show the employer’s reasons for including
Mr. Cherry in the RIF were pretextual. Mr. Cherry has not discredited Siemens’
decision to include him in the RIF. Finally, Mr. Cherry failed to create a material
“genuine issue of fact” that Siemens “harbored a discriminatory intent” and that
his “termination was truly racially motivated.” Johnson, 97 F.3d at 1073;
Twymon, 462 F.3d at 936.
ORDER
Based on the above analysis, it is hereby
ORDERED that defendant’s motion for summary judgment (Docket 31) is
granted.
IT IS FURTHER ORDERED that plaintiff’s amended complaint (Docket 8) is
dismissed with prejudice.
Dated March 31, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
29