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September 16, 2005.


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 workplace.

  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 race.

  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.

  A. Disparate Treatment

  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 ...

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