United States District Court, W.D. Arkansas, Hot Springs Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Defendant Armtec Countermeasures Company's
(“Esterline”) motion for summary judgment (Doc.
18), brief in support of its motion (Doc. 19), statement of
facts in support of its motion (Doc. 20), and supporting
documents. (Docs. 21-24). Plaintiff Milton Paul Smith, III
filed a response in opposition to summary judgment (Doc. 27),
a brief in support of his response (Doc. 28), and a document
that Mr. Smith presented as a statement of facts in support
of his response. (Doc. 29). Esterline submitted a reply to
Mr. Smith's opposition (Doc. 31), and an additional
supporting document. (Doc. 31). For the reasons stated
herein, Esterline's motion for summary judgment will be
Smith, a black male, was hired by Esterline on August 30,
2010, for the position of Senior Contracts Administrator at
its office in Coachella, California. (Doc. 20, ¶ 3). In
this role, Mr. Smith prepared proposals for contracts, and
was responsible for submitting these proposals by their due
dates. (Id.). In February 2012, Mr. Smith
transferred to Esterline's East Camden, Arkansas facility
(“ARO”) and kept the same job title.
(Id., ¶ 6). While working at ARO, Mr. Smith
“dotted line” reported to Jim Zolinsky since Mr.
Zolinsky was located at ARO, but he continued to report to
Earl Cornish. (Id., ¶ 7). “Sometime in
late 2011 [or] maybe early 2012, ” Mr. Zolinski spoke
with Mr. Smith because he had concerns that Mr. Smith's
business writing skills were not meeting expectations. (Doc.
21-1, p. 14 (Smith Dep. 68:2-13, Nov. 11, 2015)). On
September 13, 2012, Mr. Zolinski addressed Mr. Smith with
concerns about timeliness and accuracy in submitting
documents to customers. (Doc. 21-1, p. 16 (70:2-14)). In
February 2013, Mr. Smith failed to submit a proposal on time,
and this error was discovered when a customer contacted
Esterline and an IT worker searched Mr. Smith's computer,
discovering that the proposal was saved as a draft but never
actually sent. (Doc. 21-1, p. 18 (74:22- 25)). In August
2013, Mr. Smith both failed to send a quote to a customer,
and also incorrectly quoted a price to a customer in an
amount that was $565, 095 lower than the correct number.
(Doc. 20, ¶¶ 13-16).
September 10, 2013, Mr. Zolinski, Mr. Cornish, and Human
Resources Director Gail Stewart met with Mr. Smith and gave
him a “Final Warning Improvement Plan.” (Doc.
21-1, p. 26 (99:10-14)). At this meeting, it was made clear
to Mr. Smith that he was not meeting Esterline's
expectations, and he was informed that if he continued to
have performance issues he would be terminated from his
employment at Esterline. (Doc. 21-1, p. 7 (104:12-19))
(“[I]t was very clear to me that there were, this Final
Warning said that there was something that I wasn't doing
that if I continued to do it I wouldn't be there”).
September 13, 2013, Hill Air Force Base requested a bid
proposal from Esterline. (Doc. 20, ¶ 21). Esterline
“had to submit the bid by 4:00 p.m. Mountain Daylight
Time.” (Doc. 28, p. 11). It was Mr. Smith's
responsibility to submit the bid proposal on time. (Doc.
21-1, p. 28 (110:16-18)). Mr. Smith submitted the bid
proposal at 4:11pm Mountain Daylight Time. On November 14,
2013, Esterline cited to Mr. Smith's late submission of
the bid proposal after his final warning, and terminated Mr.
Smith. (Doc. 21-1, p. 32 (155:19-24)).
Legal Standard for Summary Judgment
party moves for summary judgment, it must establish both the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999). In order for there to be a genuine
issue of material fact, the non-moving party must produce
evidence “such that a reasonable jury could return a
verdict for the nonmoving party.” Allison v.
Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir.
1994) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Only facts “that might affect
the outcome of the suit under the governing law” need
be considered. Anderson, 477 U.S. at 248.
“[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the
burden of proof.” P.H. v. Sch. Dist. of Kan. City,
Mo., 265 F.3d 653, 658 (8th Cir. 2001) (quotation
omitted). Facts asserted by the nonmoving party “must
be properly supported by the record, ” in which case
those “facts and the inferences to be drawn from them
[are viewed] in the light most favorable to the nonmoving
party.” Id. at 656-57.
plaintiff in an employment discrimination case survives a
motion for summary judgment “either by providing direct
evidence of discrimination or by creating an inference of
unlawful discrimination” using circumstantial evidence.
Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953
(8th Cir. 2012). When, as is the case here, a plaintiff
presents no direct evidence to support a claim of
discrimination, the claim is analyzed under the burden
shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, the
plaintiff must first present a prima facie case of employment
discrimination. Ramlet v. E.F. Johnson Co., 507 F.3d
1149, 1153 (8th Cir. 2007). Once the plaintiff has
established a prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory
reason for its actions. Id.; McDonnell Douglas
Corp., 411 U.S. at 802. The plaintiff must then
demonstrate that the defendant's proffered reason is a
pretext for unlawful discrimination. St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); Miners
v. Cargill Comms., Inc., 113 F.3d 820, 823 (8th Cir.
1997). To demonstrate pretext, the plaintiff must offer
sufficient evidence for a reasonable trier of fact to infer
discrimination. Lors v. Dean, 595 F.3d 831, 834 (8th
Cir. 2010). However, “the evidence produced to show a
prima facie case and the ‘inferences drawn therefrom
may be considered by the trier of fact on the issue of
whether the defendant's explanation is
pretextual.'” Miners, 113 F.3d at 823
(quoting Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 255 n. 10 (1981). Although the
burden of production shifts between the parties, the burden
of persuasion remains on the plaintiff at all times.
Fatemi v. White, 775 F.3d 1022, 1041 (8th Cir.
Court will first address the shortcomings of the document
that Mr. Smith submitted as a statement of facts, and then
turn to the merits of Esterline's motion for summary
judgment. Summary judgment is proper because Mr. Smith has
failed to make out a prima facie case of race discrimination,
and because even if Mr. Smith had done so, Esterline has
asserted a legitimate nondiscriminatory reason for their
employment action, and Mr. Smith has failed to identify
circumstances that would permit a reasonable inference that
Esterline's proffered reason was pretext for unlawful
Procedural Errors that Warrant Summary Judgment
Rule 56.1 requires that a party moving for summary judgment
according to Rule 56 of the Federal Rules of Civil Procedure
shall file “a short and concise statement of the
material facts as to which it contends there is no genuine
dispute to be tried.” The rule further requires that
the opposing party shall file a “short and concise
statement of the material facts as to which it contends a
genuine dispute exists to be tried.” These statements
must comply with Federal Rule of Civil Procedure 56(c), in
that they must be supported by citation to the record. The
Local Rule outlines the penalty for an opposing party failing
to oppose facts in accordance with this rule, by requiring
that facts “shall be deemed admitted unless
controverted by the statement filed by the non-moving
party.” The effect of this Rule is that if the
nonmoving party fails to controvert the facts asserted by the
moving party, the Court may accept the movant's statement
of undisputed facts as true. Robinson v. American Red
Cross, 753 F.3d 749, 754-55 (8th Cir. 2014).
complied with the Rules. (Doc. 20). Mr. Smith did not. (Doc.
29). Mr. Smith submitted a list of fifteen questions and one
statement. (Id.). Some of these questions pertain to
the instant lawsuit, while some of them seem to raise
tangential issues that are not material and have not been
within the scope of this lawsuit. Mr. Smith's list of
fifteen questions and one statement is not a “short and
concise statement of the material facts as to which it
contends a genuine dispute exists to be tried” and the
list does not comply with Federal Rule of Civil Procedure
56(c) or Local Rule 56.1. As such, it would be proper for the
Court to find Esterline's uncontested statement of
undisputed facts as true, and enter summary judgment in favor