United States District Court, E.D. Arkansas, Jonesboro Division
OPINION AND ORDER
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
the Court is defendant Hytrol Conveyer Company, Inc.'s
(“Hytrol”) motion for summary judgment, to which
plaintiff Leisa Nettles has responded (Dkt. Nos. 17; 24).
Hytrol replied to Ms. Nettles' response by filing a
reply, as well as a “rebuttal to facts disputed by
plaintiff” (Dkt. Nos. 32; 31). Ms. Nettles filed a
motion to strike Hytrol's “rebuttal to facts
disputed by plaintiff” (Dkt. No. 33). To resolve the
pending motion, the Court did not consider the information
contained in Hytrol's rebuttal to facts disputed by
plaintiff (Dkt. No. 31). Accordingly, Ms. Nettles' motion
to strike is denied as moot (Dkt. No. 33). See Moore v.
City of Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011)
(“[R]ulings on motions to strike are committed to the
district court's sound discretion.”).
following reasons, the Court grants Hytrol's motion for
summary judgment (Dkt. No. 17). Ms. Nettles' claims are
dismissed with prejudice. All pending motions are denied as
otherwise noted, the following facts are taken from Ms.
Nettles' response to defendant's Local Rule 56.1(a)
statement of undisputed facts (Dkt. No. 25). Ms. Nettles is a
former employee of Hytrol, which manufactures material
handling conveyers. She began working for Hytrol on January
10, 2011, as an employee on the paint line and was eventually
moved to the fabrication department in July of 2012. In
October 2013, Ms. Nettles filed a Charge of Discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) alleging gender discrimination. Four
months later, in February 2014, Hytrol accepted Ms.
Nettles' bid to move to a new fabrication position, which
included the opportunity to drive a fork lift. On March 19,
2014, the EEOC issued a Dismissal and Notice of Rights
regarding Ms. Nettles' initial Charge of Discrimination.
this time, Ms. Nettles requested Family and Medical Leave Act
(“FMLA”) leave. Hytrol granted her request, and
Ms. Nettles went on FMLA leave from March 13, 2014, to April
12, 2014. Ms. Nettles requested an extension of FMLA leave,
and Hytrol granted her request. Ms. Nettles remained on FMLA
leave until April 21, 2014, when she returned to work at the
same job position without restriction.
morning of May 2, 2014, team leaders Dave Weiblen and Wes
Lowery observed Ms. Nettles climbing on a rack used to store
sheets of steel to reach plans and paperwork on a higher
shelf. There is no dispute that Ms. Nettles climbed on the
rack that day, rather than using a ladder or forklift to
retrieve the plans and paperwork. However, the parties
dispute how high Ms. Nettles climbed on the rack: Hytrol
claims that Ms. Nettles climbed six feet off the ground while
Ms. Nettles, who is 5'2”, claims that she only
climbed to the second rung, “which is significantly
shorter than her” (Dkt. No. 25, at 3). Mr. Lowery
instructed Ms. Nettles to get down from the rack and not to
climb it again because it was a safety hazard. He immediately
reported the incident to his supervisor, Tommy Holmes, and
documented the incident in writing on a notepad and in a
formal desk note.
speaking with Mr. Lowery, Mr. Holmes reported the incident to
his supervisor, Chris Taylor, who reported the incident to
David Joe Deaton, Hytrol's Human Resources Manager. Mr.
Taylor and Mr. Deaton reported the incident to Chris Glenn,
Hytrol's Director of Manufacturing.
speaking with Mr. Taylor and Mr. Deaton, Mr. Glenn determined
that further investigation was necessary. He spoke with Mr.
Lowery, who witnessed Ms. Nettles climbing on the rack. Mr.
Lowery took Mr. Glenn to the rack and showed him a footprint
that Ms. Nettles had purportedly left on the rack at a height
of approximately six feet off the ground. Ms. Nettles denies
leaving a foot print at that height and claims that Mr. Glenn
could not have seen that footprint, or that another employee
was responsible for the footprint being there.
follows a progressive disciplinary policy, but it reserves
the right to terminate an employee on a first offense for
conduct that it deems intolerable. Hytrol has an employee
guide, which includes safety rules. The safety rules provide
that employees are expected to work in a safe manner at all
times. Since being promoted to Director of Manufacturing, Mr.
Glenn has terminated six employees, including Ms. Nettles,
for committing safety violations. Of these six employees, Ms.
Nettles is the only woman.
Nettles received Hytrol's employee guides throughout her
employment and understood that she was required to work in a
safe manner at all times. Hytrol team leaders instruct
employees to use a ladder or forklift to access paper orders
that are not reachable from the ground. A ladder and forklift
were available to Ms. Nettles when she climbed on the rack.
Mr. Glenn claims that he decided to terminate Ms. Nettles
because she “carelessly and needlessly committed a
serious safety violation that put her at risk for death or
serious bodily injury” (Dkt. No. 25, ¶
Ms. Nettles disputes that Mr. Glenn was the sole decision
maker for determining whether she would be terminated. She
contends that Mr. Deaton was also a decision maker and that
he was also involved in making the decision to terminate her
Nettles does not dispute that climbing on the rack presented
safety risks to her health, though she disputes Hytrol's
assertions about how high she climbed on the rack. There is
no dispute that the rack stores steel sheets and parts (Dkt.
No. 25, at 6). There is no dispute that death or serious
bodily injury can occur from a fall (Dkt. No. 25, at 6).
There is no dispute that Ms. Nettles could have been cut by
the sharp edges on the sheets of steel on the pallets below,
had she lost her balance and fallen (Dkt. No. 25, at 6).
There is no dispute that Ms. Nettles was climbing between two
racks, such that if she had fallen off the rack backwards she
could have hit the rack holding steel behind her (Dkt. No.
25, at 6 7). She also does not dispute that prior to the
incident, she was instructed to use a ladder or forklift to
reach paperwork to retrieve paper orders, rather than
climbing on the shelves. However, she contends that she
believed that climbing on the racks to retrieve paperwork was
permissible because a team leader had recently directed her
to do so, she had never been trained not to climb, and there
was nothing in writing regarding not climbing on the racks.
alleged safety violation occurred on Friday, May 2, 2014. The
following Monday and Tuesday, Ms. Nettles was on bereavement
leave and was not at work. On Wednesday, she was absent. She
returned to work on Thursday, May 8, 2014. That morning, she
met with Mr. Glenn. Mr. Taylor, Mr. Deaton, and Mr. Holmes
were present at the meeting. During the meeting, Mr. Glenn
terminated Ms. Nettles. Mr. Glenn told Ms. Nettles that she
was being terminated for committing a safety violation that
could have caused her death or serious bodily injury. Mr.
Glenn was not aware that Ms. Nettles had recently taken FMLA
leave when he terminated her on May 2, 2014. Hytrol eventually
replaced Ms. Nettles with a man named Jason Williams who had
not previously taken FMLA leave or filed a Charge of
Discrimination with the EEOC (Dkt. No. 24-4, at 2).
Standard of Review
judgment is proper if the evidence, when viewed in the light
most favorable to the nonmoving party, shows that there is no
genuine issue of material fact and that the defendant is
entitled to entry of judgment as a matter of law.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A factual dispute is genuine if the evidence
could cause a reasonable jury to return a verdict for either
party. Miner v. Local 373, 513 F.3d 854, 860 (8th
Cir. 2008). “The mere existence of a factual dispute is
insufficient alone to bar summary judgment; rather, the
dispute must be outcome determinative under the prevailing
law.” Holloway v. Pigman, 884 F.2d 365, 366
(8th Cir. 1989).
parties opposing a summary judgment motion may not rest
merely upon the allegations in their pleadings. Buford v.
Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial
burden is on the moving party to demonstrate the absence of a
genuine issue of material fact. Celotex Corp., 477
U.S. at 323. The burden then shifts to the nonmoving party to
establish that there is a genuine issue to be determined at
trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364,
366 (8th Cir. 2008). “The evidence of the non-movant is
to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
Nettles brings disability discrimination, gender
discrimination, and various retaliation claims against
Hytrol. Hytrol moves for summary judgment on all of her
claims. Alternatively, Hytrol moves for summary judgment on
Ms. Nettles' claims for front pay, reinstatement, and
Alleged Disability Discrimination
Nettles alleges that Hytrol discriminated against her based
on a disability, in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§
12101, et seq. Hytrol moves for summary judgment on
Ms. Nettles' disability discrimination claim because Ms.
Nettles “conceded in her deposition that she does not
believe that she was treated differently or terminated by
Hytrol because of a disability” (Dkt. No. 18, at 5). In
response, Ms. Nettles argues that this
“concession” is not dispositive because she was
simply admitting that she is not actually disabled and that
her ADA claim is not premised on an actual disability, but
instead it is premised on a perceived disability. Ms. Nettles
contends that “[s]he had a health issue, which turned
out to be hernias, ” and that this health issue,
coupled with the fact that she had to take FMLA leave, was
“a factor in her termination” (Dkt. No. 26, at
10). Ms. Nettles was on FMLA leave for her hernias from March
13, 2014, to April 21, 2014, after which she returned to work
without restrictions (Dkt. No. 25, ¶ 31).
obtain relief for discrimination under the ADA, Ms. Nettles
must make a prima facie showing that she: (1) is a
qualified individual under the ADA; (2) suffered
discrimination as the term is defined by the ADA; and (3) the
discrimination was based on disability as defined by the ADA.
Brown v. City of Jacksonville, 711 F.3d 883, 888
(8th Cir. 2013). Under Paragraph (1)(C) of the ADA, the term
“disability” includes those who are regarded as
having a physical or mental impairment that substantially
limits one or more major life activities. 42 U.S.C. §
12102(1). However, the ADA specifically provides that
“Paragraph (1)(C) shall not apply to impairments that
are transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of 6 months or
less.” 42 U.S.C. § 12102 (3)(B).
case, Ms. Nettles went on FMLA leave for issues related to
her hernias for a little over one month in 2014 and returned
to work without restrictions. Her condition was a transitory
impairment as defined by the ADA because the actual duration
of the injury was less than six months. There is no record
evidence before the Court to establish an inference that
anyone from Hytrol believed Ms. Nettles' condition would
last six months or more in duration. Therefore, she cannot
qualify as being “regarded as disabled” for the
purposes of the ADA. See Horsham v. Fresh Direct,
136 F.Supp.3d 253, 263-64 (E.D.N.Y. 2015) (finding that
plaintiff failed to state a claim that he was regarded as
being disabled for the purposes of the ADA where the
plaintiff was given approximately four and a half months off
from work after hernia surgery because “these facts do
not support an inference that Defendant believed that
Plaintiff's impairment would last longer than six
months”). Ms. Nettles conceded that she was not
actually disabled during her deposition. The Court determines
that she does not qualify as being disabled in any sense for
the purposes of her ADA claim. Accordingly, even if Ms.
Nettles did not waive this claim based on her deposition
testimony, the Court finds that Hytrol is entitled to summary
judgment on Ms. Nettles' claim for disability
discrimination under the ADA.
Alleged Gender Discrimination
Nettles claims that Hytrol discriminated against her based on
her gender, in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. §§
2000e, et seq., and the Arkansas Civil Rights Act
(“ACRA”), Ark. Code Ann. § 16-123-101 et
seq. (Dkt. No. 1, at 4-5). Hytrol argues that it is
entitled to summary judgment on Ms. Nettles' gender
discrimination claims for two reasons: (1) Ms. Nettles cannot
state a prima facie case of gender discrimination;
and (2) even if she could, she cannot establish that
Hytrol's nondiscriminatory reason for terminating her was
merely a pretext.
VII and ACRA claims are governed under the same standard.
See, e.g., McCullough v. Univ. of Ark. for Med.
Scis., 559 F.3d 855, 860 (8th Cir. 2009). An employment
discrimination plaintiff may survive a motion for summary
judgment through “proof of ‘direct evidence'
of discrimination . . . [or] through the McDonnell
Douglas analysis, including sufficient evidence of
pretext.” Torgerson v. City of Rochester, 643
F.3d 1031, 1044 (8th Cir. 2011); see also McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). The
Court will analyze Ms. Nettles' claim under the
McDonnell Douglas format, as she does not offer
direct evidence of discrimination.
United States Supreme Court's decision in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973),
established the burden-shifting framework used to analyze
employment discrimination claims. “Under this scheme, a
plaintiff first must establish a prima facie case of
discrimination . . . .” Wilking v. County of
Ramsey, 153 F.3d 869, 872 (8th Cir. 1998). If Ms.
Nettles establishes a prima facie case, then the
burden shifts to Hytrol to articulate a legitimate,
non-discriminatory reason for the action. Tyler v. Univ.
of Ark. Bd. of Trustees, 628 F.3d 980, 990 (8th Cir.
2011). If Hytrol meets its burden, the burden shifts back to
Ms. Nettles to present facts that, if proven at trial, would
permit a jury to conclude that Hytrol's proffered reason
was a pretext and that unlawful discrimination was the true
reason for the adverse employment action. Id.
Prima Facie Case
establish a prima facie case of discrimination under
Title VII or the ACRA, Ms. Nettles must show that: (1) she is
a member of a protected class; (2) she was meeting her
employer's legitimate job expectations; (3) she suffered
an adverse employment action; and (4) similarly situated
employees outside the protected class were treated
differently or there are facts permitting an inference of
discrimination. Onyiah v. St. Cloud State Univ., 684
F.3d 711, 716 (8th Cir. 2012); Canady v. Wal-Mart Stores,
Inc., 440 F.3d 1031, 2034 (8th Cir. 2006). Hytrol does
not contest that Ms. Nettles satisfies the first three
elements of the prima facie case, but Hytrol argues
that she “cannot present competent proof that gives
rise to an inference of gender discrimination” (Dkt.
No. 18, at 6). In response, Ms. Nettles argues that she can
satisfy the fourth element of her prima facie case
“by establishing replacement, disparate treatment, or
through evidence of pretext” (Dkt. No. 26, at 15).
gender discrimination case, a plaintiff can satisfy the
fourth element of the prima facie case by showing
that she was replaced by someone of the opposite gender.
Kobrin v. Univ. of Minnesota, 34 F.3d 698, 702 (8th
Cir. 1994) (“In sex discrimination cases, the [female]
plaintiff makes out a prima facie case by proving: . . . (4)
that the employer hired a man for the position.”);
see also Hill v. St. Louis Univ., 123 F.3d 1114,
1119 (8th Cir. 1997) (“Under the burden-shifting
framework, Hill must establish the elements of a prima facie
case: (1) that she is within the protected class of people;
(2) that she was qualified to perform her job; (3) that her
employment was terminated; and (4) after her dismissal, she
was replaced by someone younger (ADEA) or of the opposite
gender (sex discrimination under Title VII).”). Ms.
Nettles was replaced by a man, though there is record
evidence that Hytrol posted the job position internally and
current Hytrol employees were permitted to bid on the job
(Dkt. No. 32, at 11). According to its practice, Hytrol
accepted the bid of the Hytrol employee who had the most
seniority (Dkt. No. 32, at 11). In other words, none of the
decision makers involved in terminating Ms. Nettles selected
a male candidate to fill her position; instead, the most
senior Hytrol employee to bid on the open position received
it. However, even if Ms. Nettles could establish a prima
facie case, the Court finds that she fails to satisfy
her remaining burdens under the McDonnell Douglas
Hytrol's Burden To Show Nondiscriminatory Reason
without deciding that Ms. Nettles makes a prima
facie case of gender discrimination, the burden shifts
to Hytrol to articulate a nondiscriminatory justification for
its decision to terminate Ms. Nettles. Hytrol's burden
“is not onerous, and the explanation need not be
demonstrated by a preponderance of the evidence.”
Floyd v. State of Mo. Dep't of Soc. Servs., Div. of
Family Servs.,188 F.3d 932, 936 (8th Cir.1999). In this
case, Hytrol claims that Ms. Nettles was terminated for
violating its safety rules by climbing on a rack holding
sheets of steel. Hytrol reserves the right to terminate
employees for conduct that it deems intolerable. While Ms.
Nettles disputes how high she climbed, she concedes that she
climbed on the rack on the day in question and that her
actions posed a risk to her safety. A violation of company
policy is a legitimate ...