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Silverman v. Trinity Village

United States District Court, E.D. Arkansas, Pine Bluff Division

July 3, 2019

SHARON SILVERMAN PLAINTIFF
v.
TRINITY VILLAGE; and DONNA STONE, in her individual and official capacities DEFENDANTS

          OPINION AND ORDER

          J. LEON HOLMES UNITED STATES DISTRICT JUDGE

         On July 11, 2016, Sharon Silverman, an African American woman, was terminated from her position as administrator of assisted living at Trinity Village, a Pine Bluff senior living community. Silverman has sued Trinity Village as well as her former supervisor, Donna Stone, in her individual capacity and in her capacity as the Trinity Village executive director.[1] Although not divided into counts stating separate claims for relief, her complaint mentions discrimination on the basis of race, age, and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the equal protection clause, and the Arkansas Civil Rights Act. See Document #1. It also mentions retaliation, wrongful discharge, breach of contract, and intentional infliction of emotional distress. See Id. at 1-2, 6. The heart of her complaint seems to be that she was subjected to a hostile work environment and eventually was discharged because of her race and in retaliation for complaining to the EEOC.

         The defendants filed an early motion for partial summary judgment on all claims under section 1983; all claims under the equal protection clause; any age and sex discrimination claims brought under section 1981; and the sex and age discrimination claims under Title VII and the ACRA. Document #8. The Court granted the motion. It dismissed Silverman's claims under section 1983, section 1981, and the equal protection clause, and her claims for sex and age discrimination under Title VII and the ACRA. Document #24 at 2. The Court stated that Silverman's “race discrimination claims under Title VII and the Arkansas Civil Rights Act remain.” Id.

         The defendants now “move for summary judgment as to Plaintiff's remaining claims under Title VII and ACRA.” Document #28 at 2. After reviewing the parties' briefs and its previous order, the Court explained that it mistakenly dismissed Silverman's section 1981 race discrimination claim and it directed the defendants to brief the merits of that claim. Document #50. They have done so. With her response to the defendants' motion for summary judgment, Silverman filed a sworn declaration in which she adds to her deposition testimony. The defendants have moved to strike portions of the declaration which, they say, directly contradict Silverman's testimony during her deposition. In addition, the defendants argued in their reply brief that Silverman's complaint failed to state a claim upon which relief can be granted for intentional infliction of emotional distress and breach of contract or wrongful discharge. The Court notified the parties that it would treat that argument as a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and gave Silverman the opportunity to respond, which she has done. For reasons that will be explained, the motion to strike is denied. The motion for summary judgment is granted in part and denied in part. The motion for judgment on the pleadings is granted as to the claim of intentional infliction of emotional distress but denied as to the claim for wrongful discharge.

         Summary Judgment Standard

          A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Id.

         The Motion To Strike Silverman's Declaration

         It is well established that a nonmoving party cannot avoid summary judgment by responding to the motion with an affidavit or declaration contradicting that party's earlier deposition testimony. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983). In these situations, however, only “where the conflicts between the deposition and affidavit raise only sham issues should summary judgment be granted” despite the conflicts. Id. at 1366.

         Here, the defendants say that certain paragraphs in Silverman's declaration contradict her prior deposition testimony. Document #46 at 4. None of the paragraphs, however, fall into the Camfield Tires category. Silverman testified in her deposition that she complained to the EEOC on June 23, 2016, only about an incident on June 22, 2016. Paragraphs 12-20 and 26 of her recent declaration do not contradict this testimony because in them Silverman simply relates allegations that occurred before June 22 - she does not state that she reported those events to the EEOC on June 23. See Document #41. Paragraph 38 adds to but does not contradict her previous deposition testimony. Document #38-1 at 42. Paragraph 39 likewise adds to but does not contradict her previous deposition testimony because it explains that her subsequent conversations with the EEOC - after June 23 - addressed more than the June 22 incident. Document #41 at 39; Document #38-1 at 57. Similarly, paragraph 21 of Silverman's declaration, which explains that she believed someone's body language was racist, does not contradict but supplements her prior deposition testimony regarding the interaction. See Document #38-1 at 42; see Fast v. Southern Union Co., Inc., 149 F.3d 885, 892 n.7 (8th Cir. 1998) (declining to find a late affidavit was a sham; it did not contradict deposition testimony under Camfield Tires but supplemented it). Finally, Silverman's recent declaration evidence that Donna Stone discriminated against her does not contradict her deposition testimony because in her deposition she was equivocal on this point. See Document #38-1 at 32-35; Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir. 1988) (“Ambiguities and even conflicts in a deponent's testimony are generally matters for the jury to sort out.”). The motion to strike is therefore denied.

         Silverman's Claims Against Donna Stone Individually

         Silverman sued Stone in her individual capacity and in her official capacity as executive director of Trinity Village. Individual employees cannot be personally liable under Title VII. McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3 855, 860 n.2 (8th Cir. 2001). Silverman's Title VII claims against Donna Stone in her individual capacity therefore must be dismissed. Individual employees may, however, be liable under section 1981 if they intentionally cause an employer to infringe on a plaintiff's section 1981 rights. Jones v. Forrest City Gro., Inc., 564 F.Supp.2d 863, 869 (E.D. Ark. 2008).

         Silverman's Claim That She Was Terminated Because Of Her Race

         Silverman asserts race discrimination in violation of Title VII, section 1981, and the ACRA. Section 1981 guarantees to all persons the same right to contract “as is enjoyed by white persons.” 42 U.S.C. § 1981. Race discrimination claims under Title VII, section 1981, and the ACRA are all analyzed under the McDonnell Douglas burden-shifting framework when, as here, there is no direct evidence of race discrimination. Evance v. Trumann Health Servs., LLC, 719 F.3d 673, 677 (8th Cir. 2013); Bennett v. Nucor Corp., 656 F.3d 802, 818 (8th Cir. 2011); Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8th Cir. 1999). Silverman therefore must first make a prima facie showing of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). That is, she must show that she is a member of a protected class, that she was qualified for the position, and that she suffered an adverse employment action under circumstances that would permit the court to infer that unlawful discrimination was involved. See id.; Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005). If Silverman establishes a prima facie case, the burden then shifts to Trinity Village to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. at 1824-25. If this burden is met, Silverman must show that the proffered reason is actually a pretext for unlawful discrimination. Id. at 804, 93 S.Ct. at 1825. Silverman at all times bears the ultimate burden “of proof and persuasion” that she was the victim of unlawful discrimination. See Torgerson, 643 F.3d at 1046.

         Silverman has not met her burden of establishing a prima facie case of racial discrimination because the circumstances do not permit the court to infer that she was terminated because of her race. She points to various circumstantial evidence from the course of her employment that, she says, shows an intent to discriminate. Her evidence comes up short, however.

         It is undisputed that Silverman was replaced by an African American woman. While not determinative, this fact is relevant and tends to undercut Silverman's claim that she was terminated because of her race. Routen v. Suggs, __ Fed.Appx. __, 2019 WL 2587606 at *2 (8th Cir. June 24, 2019), citing Walker v. St. Anthony's Med. Ctr., 881 F.2d 554, 558 (8th Cir. 1989).

         Silverman points to an instance nearly two years before her termination in which a coworker declared to executive director Stone, in Silverman's presence, that she would not work for a “n*****” and then immediately handed Stone her resignation. In some instances racial slurs or other insults are highly probative that a subsequent adverse employment action was motivated by race. See Bryant v. Jeffrey Sand Co., 919 F.3d 520, 526 (8th Cir. 2019) (noting that manager's use of racial slurs evidenced a clear intent to discriminate against the plaintiff); Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1324 (8th Cir. 1994) (holding that a decisionmaker's comment that “women were the worst thing” that happened to the company was direct evidence of sex discrimination). But a single remark made by a non-decisionmaker in the process of resigning, “untethered as [it was] from the adverse employment action at issue” nearly two years later, does not raise any inference of intentional race discrimination by Stone or Trinity Village. Hutton v. Maynard, 812 F.3d 679, 686 (8th Cir. 2016); see also Ward v. Int'l Paper Co., 2006 WL 1061951, at *3 (E.D. Ark. Apr. 20, 2006) (manager's comment that it would be an excellent time for the plaintiff to retire, six months before he was terminated, did not support an inference of age discrimination in the decision to terminate him).

         Silverman's declaration states that when she first took the job she was initially paid less than the prior Caucasian administrator of assisted living. Silverman has not provided any facts to show that she and the prior administrator had similar experience and qualifications, so the evidence does not allow the inference that the pay difference was racially motivated. And it is undisputed that Silverman received substantial raises in the course of her employment at Trinity Village.[2] In short, Silverman has wholly failed to connect her initial pay for her first six months at Trinity Village with her termination nearly two years later.

         Silverman next notes that only she and her staff were initially required to clock in and out at Trinity Village while no other salaried employees had to do so. Approximately a year before she was terminated Silverman raised the issue with Stone, who ended the requirement. Silverman's evidence does not connect her race with the requirement that she and her staff had to clock in. Moreover, nothing connects the circumstances surrounding that requirement - which ended a year before Silverman's termination - with her termination.

         Silverman insists that a Caucasian coworker, April Bogy, treated her poorly on the basis of race and that Stone did nothing about it. Silverman says that Bogy openly disrespected her, created needless disputes with her, refused to attend meetings she conducted, fabricated errors in her time sheets, and confronted her in a hostile manner, among other things. Silverman believes all these things were done on the basis of race. She says that “Bogy was always doing something to be racially insensitive and/or offensive.” Document #41 at 8. In relation to one specific incident with Bogy, Silverman says that Bogy's “body language, tone, and gestured shaking and pointing her finger in [her] face” made it “clear” to her that Bogy's behavior was motivated by racial bigotry. Id.; Document #38-1 at 51. Regardless, however much Silverman believes that race played a part in Bogy's behavior, “[Silverman's] beliefs have no effect and do not create a genuine issue of material fact that would preclude summary judgment.” Marler v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1457 (8th Cir. 1996). Silverman testified that Bogy never used any racial slurs. Document #28-1 at 3; Document #55-1 at 32-33. It is clear that the two women did not get along, but that fact ...


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