United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendants' November 12, 2018 motion (Doc.
23) for summary judgment. Defendants have filed a brief (Doc.
24) and statement of facts (Doc. 25) in support. Plaintiff
has filed an untimely motion (Doc. 26) for extension of time
to file her response to the motion for summary judgment.
Although the motion for extension of time has not been
granted, she has also filed a response (Doc. 27) to the
motion for summary judgment, a brief (Doc. 28) in opposition
to summary judgment, and a responsive statement of facts
(Doc. 29). Defendants have filed a response (Doc. 30) in
opposition to the motion for extension of time.
motion to extend, Plaintiff requests additional time because
her attorney “mistakenly believed that his client had
21 days to respond” to a motion for summary judgment,
rather than the 14 days set out in this Court's local
rules. (Doc. 26, p. 1). That is, although the actual response
deadline was November 26, 2018, Plaintiff's counsel
believed the response deadline to be December 3, 2018.
Plaintiff filed her motion for extension of time and
responsive documents on December 4, 2018. Defendants argue
that Plaintiff's motion for extension should be denied
because “Plaintiff has stated only lack of diligence on
the part of counsel” which is insufficient to
demonstrate good cause or excusable neglect. (Doc. 30, p. 2).
The Court agrees that Plaintiff's motion for extension of
time does not set out good cause for missing the deadline,
let alone excusable neglect. Nevertheless, because of the
preference for ruling on the merits, the Court will grant the
motion for extension of time and consider the untimely
response. Defendants' motion for summary
judgment will be granted.
complaint raises claims for termination of employment and a
hostile workplace environment constituting unlawful
employment discrimination on the basis of national origin.
Title VII of the Civil Rights Act prohibits employment
discrimination on the basis of national origin. 42 U.S.C.
§ 2000e, et seq.
respect to Plaintiff's claim arising out of termination
of her employment, there is no direct evidence of
discrimination in the record. In the Title VII context,
“direct evidence is evidence ‘showing a specific
link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion
actually motivated' the adverse employment action.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1044
(8th Cir. 2011) (quoting Thomas v. First Nat'l Bank
of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)).
was employed at Defendant Tyson Poultry, Inc.'s
Chick-N-Quick plant in Rogers, Arkansas, and was supervised
by Fredy Valladares. The challenged decision is the termination
of Plaintiff's employment. The discriminatory animus is
Valladares's alleged bigotry against Salvadorians. The
decision to terminate Plaintiff's employment was made by
Manuel Aguirre in Defendants' human resources
department. There is no instance in the record of Aguirre
expressing a discriminatory animus against Salvadorians, and
no apparent link between Aguirre's decision and
Valladares's alleged bigotry. Because Plaintiff lacks
direct evidence of discriminatory animus, her case can
overcome Defendants' motion for summary judgment only if
she can raise an inference of unlawful discrimination under
the McDonnell Douglas burden-shifting framework.
Torgerson, 643 F.3d at 1044.
the McDonnell Douglas framework, if Plaintiff can
meet her burden to produce evidence that establishes a prima
facie case of discrimination, Defendants may then articulate
a legitimate nondiscriminatory reason for their decision, and
the burden shifts back to Plaintiff to produce evidence
sufficient to create a genuine issue of material fact as to
whether Defendants' articulated reason was pretext for
intentional discrimination. Id. at 1046. The Court
need not determine whether Plaintiff can make out a prima
facie case of discrimination because Defendants have
articulated a legitimate nondiscriminatory reason for the
decision to terminate Plaintiff's employment and she has
not produced any evidence to show that the decision was mere
pretext for unlawful discrimination.
policy is to terminate the employment of any employee who
receives a combination of one written warning with suspension
and three written warnings within any 12-month period. On
October 31, 2016, Plaintiff and other team members were
disciplined for yelling at one another. Because Plaintiff had
previously been counseled to treat coworkers with respect and
dignity, Aguirre gave her a written warning. On December 15,
2016, following an investigation into a report he received,
Aguirre gave Plaintiff a written warning because he believed
she had taken an unauthorized lunch break on December 14,
2016. On May 19, 2017, Aguirre gave Plaintiff a written
warning with suspension because he believed she had used
obscene language while talking with another employee. On May
25, 2017, after reviewing security camera footage, Aguirre
gave Plaintiff a written warning because she was repeatedly
taking product she believed to be inferior off the production
line, turning her back to the production line as additional
product went by, so she could show the inferior product to
the camera. Because this was her third written warning within
a 12-month period, and because she also received a written
warning and suspension in that period, Aguirre proposed
termination of Plaintiff's employment.
Valladares was involved in some of Aguirres's
investigations, the disciplinary decisions were made by
Aguirre. Plaintiff has produced no evidence to show that
Aguirre had a discriminatory animus against her on the basis
of her national origin, and no evidence that Aguirre did not
in good faith believe after his investigations that
Plaintiff's conduct warranted the warnings and discipline
handed out to her. Cf. Harvey v. Anheuser-Busch,
Inc., 38 F.3d 968, 972 n.2 (8thCir. 1994) (agreeing that
relevant inquiry in pretext analysis is not whether employee
actually committed acts of misconduct justifying discipline,
but whether employer believed employee had committed those
Plaintiff cites no evidence to show that Defendants'
justification for terminating her employment was pretext for
unlawful discrimination, judgment against her is proper on
discrimination claims arising out of termination of her
respect to Plaintiff's hostile workplace environment
claim, her supervisor Valladares twice said to her
“pinche salvadoreña”-a vulgar phrase
incorporating her national origin. Valladares also did not
allow her bathroom breaks, causing her to urinate in her
pants; would not allow her to turn on fans in the work area
and would yell at her when she asked to turn on a fan; would
bang his fist on the wall and make loud noises to scare her;
denied her permission to go to a doctor's appointment to
see if her cancer was still in remission; and angrily
confronted her when she returned to work from that
appointment after she received permission from
Valladares's superiors to go.
VII is not a workplace civility code. Faragher v. City of
Boca Raton, 524 U.S. 775, 787-88 (1998). Plaintiff must
show that the actions constituting harassment are
sufficiently serious to affect a term, condition, or
privilege of employment, and this standard is
“demanding.” Kelleher v. Wal-Mart Stores,
Inc., 817 F.3d 624, 634 (8th Cir. 2016). Plaintiff must
also show a causal nexus between those actions and her
national origin. Id. Plaintiff's response does
not show that the acts of harassment were sufficiently severe
and pervasive to satisfy Title VII's standard. More
importantly, with the exception of Valladares's
vulgarity, Plaintiff cannot show a causal nexus between any
harassment and her national origin. Nor can she show that
Valladares's vulgarity is sufficiently severe to give
rise to a Title VII hostile workplace environment claim.
See Faragher, 524 U.S. at 788 (explaining that
infrequent “mere offensive utterance[s], ”
“simple teasing, ” “offhand comments,
” “isolated incidents, ” and “the
sporadic use of abusive language” are not actionable).
Judgment against Plaintiff is proper on her hostile workplace
THEREFORE ORDERED that Plaintiff's motion for an
extension of time (Doc. 26) is GRANTED.
FURTHER ORDERED that Defendants' motion for summary
judgment (Doc. 23) is GRANTED and Plaintiff's claims are
DISMISSED WITH ...