The opinion of the court was delivered by: J. HOLMES, District Judge
This is an employment discrimination case. Maurice Jacob, an
African American male, brought race discrimination and harassment
claims against his employer, Bemis Bag Company, pursuant to
42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of
1964). Bemis has moved for summary judgment (Docket #19). For the
reasons stated below, this motion is granted.
A court should grant summary judgment when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). The party moving for summary judgment bears the
initial responsibility of informing the district court of the
basis of its motion and identifying the portions of the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, that demonstrate
the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986), Group Health Plan, Inc.
v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003).
When the moving party has carried its burden under Rule 56(c),
the non-moving party must "come forward with `specific facts
showing that there is a genuine issue for trial.'" Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1985)
(quoting FED. R. CIV. P. 56(e)). The non-moving party sustains this burden by showing that there are "genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party." Anderson, 477 U.S. at 250. When a non-moving party
cannot make an adequate showing on a necessary element of the
case on which that party bears the burden of proof, the moving
party is entitled to judgment as a matter of law. Celotex,
477 U.S. at 323.
This Court's Local Rule 56.1 provides that when the moving
party files a statement of material facts with its motion for
summary judgment all material facts set forth in the statement
shall be deemed admitted unless controverted by the non-moving
party. Bemis filed its motion for summary judgment on August 8,
2005. Pursuant to Local Rule 7.2 and Fed.R.Civ.P. 6, Jacob's
response was due on August 22, 2005. On August 30, 2005, the
Court wrote Jacob, informed him that the due date for his
response had passed and stated, "If I have not heard from you
within five business days, I will assume that you do not oppose
the motion for summary judgment and will act accordingly." Jacob
never responded. Because Jacob has not controverted Bemis's
statement of undisputed facts, those are deemed admitted.
Jacob is employed as a Press Operator at Bemis's plant in
Crossett, Arkansas. During his employment with Bemis, Jacob has
been part of a bargaining unit that has been covered by
successive collective bargaining agreements between Bemis and a
labor union. The Collective Bargaining Agreement ("CBA") covers
terms and conditions of employment including wage increases, work
rules, and procedures for filling positions within the company.
Conditions of employment are governed by the CBA and apply to all
employees in the bargaining unit regardless of race. The CBA provides that employees may file grievances if
they do not feel that they have been treated fairly in the
Jacob has received some form of discipline under the CBA 30
times, most of which concerned attendance issues. Jacob also
received warnings about quality issues, including failing to
initial his orders and printing errors. White employees have also
received warnings for the same infractions. Jacob never
complained to Bemis that any disciplinary action was based on his
Jacob suffered a work-related shoulder injury on January 31,
2002. Based on his doctor's recommendations, he was placed on
light duty through February 21, 2002. Light-duty assignments at
Bemis are based on production needs and work functions that an
employee can perform within any restrictions imposed by a
physician. During the week of February 4, 2002, Jacob was asked
to remain at his machine and provide instruction to an Assistant
Operator. The Assistant Operator performed all of the job
functions that Jacob was restricted from performing. This
assignment was considered light duty and was necessary to meet
Bemis's production needs. At the end of the week, Jacob was moved
to a different light duty position. Jacob received his full pay
while assigned to light duty.
Jacob's complaint alleges harassment and disparate treatment
based upon his race. Jacob alleged that he was prescribed light
duty by his physician but was not permitted to work light duty
until six days later when a white coworker was injured and placed
on light duty. Jacob also alleged that he has been routinely
harassed by his supervisors and reprimanded on numerous occasions
for poor quality print and for failing to initial orders while
white coworkers were not reprimanded for similar infractions. II.
Because there is no direct evidence of discriminatory intent,
Jacob's disparate-treatment claim is analyzed under the
burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), which means that a plaintiff must
demonstrate the following four elements: (1) that he belonged to
a protected class, (2) that he was qualified to perform his job,
(3) that he suffered an adverse employment action, and (4) that
he was treated differently than similarly-situated members of the
unprotected class. Shoffstall v. Henderson, 223 F.3d 818, 825
(8th Cir. 2000) (citing Breeding v. Arthur J. Gallagher & Co.,
164 F.3d 1151, 1156 (8th Cir. 1999)).
If the plaintiff establishes a prima facie case, a rebuttable
presumption of discrimination is created. The employer may rebut
this presumption by articulating one or more nondiscriminatory
reasons for the employment decision. When the prima facie case
has been successfully rebutted, the presumption of discrimination
drops out of the picture, and the burden shifts back to the
plaintiff to present evidence sufficient to support two findings.
McCullough v. Real Foods, Inc., 140 F.3d 1123, 1127 (8th Cir.
1998). First, the plaintiff must present evidence that creates a
fact issue as to whether the employer's proffered reasons are
mere pretext. Id. Second, he must present evidence that creates
a reasonable inference that the adverse employment decision was
an act of intentional discrimination based on race. Id. See also
Robinson v. Sears, Roebuck and Co., 111 F. Supp. 2d 1101, 1112
(E.D. Ark. 2000).
Jacob has not presented a prima facie case of discrimination
because he has failed to establish the third and fourth elements
stated above. Jacob has not shown that he suffered an adverse
employment action or that he was treated differently than
similarly-situated white employees. "An adverse employment action is a tangible change in working
conditions that produces a material employment disadvantage."
Spears v. Missouri Dept. of Corrections & Human Resources,
210 F.3d 850, 853 (8th Cir. 2000). Termination, reduction in pay or
benefits, and changes in employment that significantly affect an
employee's career meet this standard, but minor changes or
inconveniences do not. Id. Poor performance evaluations or
disciplinary citations do not in themselves constitute an adverse
employment action. Id. at 854. An unfavorable evaluation is
actionable only if the employer uses it to alter detrimentally
the terms or conditions of the person's employment. Id.
In this case, Jacob has neither alleged nor offered any
evidence that the terms or conditions of his employment changed
in any way as a result of his disciplinary notices or his
light-duty assignments. He has not been fired or demoted, and he
has continued to receive his full salary, even while ...