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Nettles v. Hytrol Conveyor Co.

United States District Court, E.D. Arkansas, Jonesboro Division

September 9, 2016




         Before 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.”).

         For the 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 moot.

         I. Background

         Unless 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.

         During 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.

         The 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.

         After 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.

         Upon speaking with Mr. Taylor and Mr. Deaton, Mr. Glenn determined that further investigation was necessary.[1] 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.

         Hytrol 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.[2]

         Ms. 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, ¶ 20).[3] 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 employment.

         Ms. 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.

         The 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.[4] 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).

         II. Standard of Review

         Summary 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).

         However, 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).

         III. Discussion

         Ms. 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 punitive damages.

         A. Alleged Disability Discrimination

         Ms. 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).

         To 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).

         In this 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.

         B. Alleged Gender Discrimination

         Ms. 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.[5]

         Title 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.

         The 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.

         1. Prima Facie Case

         To 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).

         In a 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 framework.[6]

         2. Hytrol's Burden To Show Nondiscriminatory Reason

         Assuming 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 ...

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