United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendant Kennametal, Inc.'s motion (Doc.
13) for summary judgment. Defendant filed a statement of
facts (Doc. 14) and brief (Doc. 15) in support. Plaintiff
Gary Benson filed a response (Doc. 16) in opposition, as well
as a responsive statement of facts (Doc. 17) and brief (Doc.
18). Defendant filed a reply (Doc. 19). The motion will be
facts in Defendant's statement of facts that are material
to resolution of this motion are either undisputed, though
Plaintiff has clarified some of these, or if Plaintiff
disputes them, he does not adequately support the dispute
with citations to the record that would demonstrate his
dispute is genuine. Plaintiff entered Defendant's employ
in 1973. From 2008 on, Plaintiff worked in Defendant's
Rogers North Plant in Rogers, Arkansas. Plaintiff was
classified as a machinist in the extrusion dies area, and his
job was involved with the pelletizing of die plates.
Plaintiff was supervised by Paul Tompkins. Plaintiff's
floor lead, to whom Tompkins delegated some supervisory
duties, was Jeff Farar. Between September 2013 and March
2015, Plaintiff was the target of unwelcome behavior from his
coworkers, including Farar. In September 2013, when Plaintiff
was ill and had been losing weight, Farar duct-taped
Plaintiff hands to a forklift steering wheel, saying he
“just felt the urge that [he] needed to do this at the
moment.” (Doc. 13-1, p. 13 (Deposition of Gary Benson,
p. 49:11-13 (May 22, 2018))). In late 2013, Plaintiff took a
six-month paid medical leave, returning to work in April
October 2014, Farar snuck up on Plaintiff while wearing a
President Obama Halloween mask, wrapped his arms around
Plaintiff, and mimed kissing Plaintiff's face.
(Id. at 16-17 (Benson Dep. pp. 63:1-65:8)). Sometime
prior to March 2015, someone also taped a sign to the back of
Plaintiff's vehicle indicating that Plaintiff had voted
for President Obama two times, and Farar and another
employee, Jason Cook, told vendors and customers that
Plaintiff was a two-time voter for President Obama.
(Id. at 17-18 (Benson Dep. pp. 68:12-73:3)). In
November 2014, Farar snuck up behind Plaintiff, spun him
around in his chair, and grabbed Plaintiff, touching his
crotch. (Id. at 19 (Benson Dep. pp. 75:12-77:15)).
In December 2014, Farar “grope-slapped”
Plaintiff's buttocks while Plaintiff was bending over
inspecting a die plate. (Id. at 21-22 (Benson Dep.
pp. 84:8-85:21)). In January 2015, Plaintiff arrived at work
to find banana peels and tampons on his computer and keyboard
and a pair of soiled panties on his monitor. (Id. at
23 (Benson Dep. pp. 90:20-91:11)). In February 2015, Farar
told assembled employees that Plaintiff would soon be working
in carbide assembly where old people go before they retire.
(Id. at 25 (Benson Dep. pp. 97:23-98:18)). In early
2015, while Plaintiff was traveling to Arizona, the
“back carriage” of his vehicle fell off because
13 screws were missing; because the only other place
Plaintiff drove the vehicle was to Defendant's parking
lot, the screws were likely removed by Defendant's
employees. (Id. at 31-32 (Benson Dep. pp.
April 2015, Defendant moved Plaintiff to the shop floor in
order to crosstrain another employee who had covered for
Plaintiff during his medical leave in the quality control
inspection position. (Id. at 26-28 (Benson Dep. pp.
104:19-109:18)). In June 2015, while Plaintiff was on the
shop floor, another employee, Tony Almarez, jabbed
Plaintiff's ribs. (Id. at 28-29 (111:12-
113:11)). In October 2015, Plaintiff was told by Tompkins
that Plaintiff and the other employee would begin alternating
months as quality control inspector beginning in November.
received annual pay increases, no pay cuts, and no changes in
benefits while he was employed by Defendant. In August 2015
Plaintiff was disciplined based on a complaint from another
employee, who said Plaintiff had been offensive to her about
her national origin. That same month, Plaintiff was again
disciplined, this time based on the complaint of another
employee who said Plaintiff was making fun of his ethnicity
and traditions. Plaintiff was placed on paid administrative
leave in September 2015 for the purpose of meeting with a
counselor affiliated with Defendant's employee assistance
program. During that administrative leave, Plaintiff called
Defendant's ethics hotline telephone number and reported
the harassment he had previously reported to Tompkins.
Defendant investigated and issued written warnings to Tomkins
and Farar. After Plaintiff returned to work, he reported no
new harassment. In July 2016, a third employee complained
about Plaintiff's behavior, claiming Plaintiff had been
intimidating and bullying him. Another of Defendant's
employees claimed he had witnessed that behavior. Plaintiff
disputed that this activity had occurred, but Defendant
investigated and decided the complaints were credible.
was fired on August 15, 2016. On February 8, 2017, he filed
an EEOC charge of discrimination. (Doc. 16-8). On March 23,
2017, the EEOC issued a dismissal and notice of rights. (Doc.
16-7). Plaintiff filed his complaint in this action on June
21, 2017, alleging employment discrimination on account of
sex, age, and disability, and retaliation in violation of
Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act (ADEA), the Americans with Disabilities Act
(ADA), and the Arkansas Civil Rights Act (ACRA).
federal sex, age, and disability discrimination claims
premised on a hostile work environment or any other act other
than termination of his employment are time-barred. Title
VII, the AEDA, and the ADA all require plaintiffs to exhaust
administrative remedies before brining suit by filing a
charge of discrimination with the EEOC within 180 days after
the alleged discrimination occurred. Moses v. Dassault
Falcon Jet-Wilmington Corp., 894 F.3d 911, 919-20 (8th
Cir. 2018) (citing cases and statutes). Unlawfully
discriminatory hostile work environments constitute a
continuing violation, and so an EEOC charge may reach back
from the date of the last act that is part of the hostile
work environment to encompass activity that occurred longer
than 180 days before the charge was filed. Id. at
By contrast, “[a] termination is a discrete act, not a
continuing violation.” Hutson v. Wells Dairy,
Inc., 578 F.3d 823, 826 (8th Cir. 2009) (citing
[Passenger Corp. v.] Morgan, 536 U.S. [101,
] 114, 122 S.Ct. 2061 (2002) (“Discrete acts such as
termination, failure to promote, denial of transfer, or
refusal to hire are easy to identify. Each incident of
discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful
employment practice.'”)). The “termination
occurs-and thus triggers the start of the limitations
period-on the day it happens.” Id. (citing
Morgan, 536 U.S. at 110, 122 S.Ct. 2061). The
termination “day is when the employer notifies the
employee of the decision to terminate [his or] her
employment.” Id. (citations omitted).
“Each discrete act is a different unlawful employment
practice for which a separate charge is required.”
Richter v. Advance Auto Parts, Inc., 686 F.3d 847,
851 (8th Cir. 2012 (per curiam) (citing Morgan, 536
U.S. at 114, 122 S.Ct. 2061); see also Betz v.
Chertoff, 578 F.3d 929, 937-38 (8th Cir. 2009) (also
applying Morgan in the ADEA context).
Id. at 920.
EEOC charge was filed on February 8, 2017. Discrimination
occurring on August 11, 2016, or earlier is outside the
limitations period unless it is part of a continuing
violation that ended within the limitations period. The only
act of discrimination or retaliation that Plaintiff has
identified (either in his deposition or in his affidavit
submitted in response to the motion for summary judgment)
that is within the 180-day period before his EEOC charge was
filed is the termination of his employment on August 15,
2016. This termination was a discrete act, not a continuing
violation encompassing the earlier discriminatory or
retaliatory actions of Defendant or its employees.
Moses, 894 F.3d at 920.
respect to Plaintiff's federal discrimination and
retaliation claims premised on termination of his employment,
and assuming without deciding that Plaintiff can state a
prima facie case of discriminatory or retaliatory discharge,
Defendant has articulated a nondiscriminatory reason for this
discharge. Defendant believed Plaintiff was violating company
policy by asking other employees about national origin, being
rude to other employees, making fun of other employees'
ethnicity or traditions, and after having been warned off
this misconduct, bullying a Hispanic employee.
Plaintiff disputes some of his own accused misconduct
occurred, he does not cite anything in the record from which
a reasonable factfinder could infer that Defendant's
articulated reason for termination of Plaintiff's
employment was pretext for unlawful discrimination or that
his protected conduct was the “but for” cause of
Defendant's decision to terminate his employment.
has identified other employees who were rude to him or
physically bullied him, such as Farar and Almarez, who were
not fired as a result of their misconduct. Plaintiff has
failed to show that these employees received disparate
treatment because he has not cited evidence that Defendant
received reports ...