Opinion
Case No. 8:00CV511
February 13, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Defendant's Motion for Summary Judgment (Filing No. 24). The Motion was supported by a brief and an Evidence Index (Filing No. 25). The Plaintiff Leroy Robert Bristol, Jr. ("Bristol"), appearing pro se, timely submitted a written argument that he failed to serve on the Defendant in accordance with NELR 7.1(b)(1). Bristol also failed to file his attachments, apparently submitted as items of evidence, pursuant to NELR 7.1(b)(2). The Court mailed a copy of Bristol's response to the Defendant.
NELR 3.4(b) provides that "all litigants proceeding pro se shall be bound and comply with all local rules of this court, and the Federal Rules of Civil Procedure, and the Federal Rules of Criminal Procedure." Therefore, because the Plaintiff's written argument and attachments were not submitted in accordance with Federal Rule of Civil Procedure 5 and NELR 7.1(b)(1) and 7.1(b)(2), these documents may not be considered.
FACTUAL BACKGROUND
Bristol began his employment at Valmont Industries, Inc. ("Valmont") in 1980. (Filing No. 25, Ex. A 12:21-23 (Bristol's deposition).) Bristol held the position of painting associate in the "poles division" at Valmont and was later promoted to "Lead Person" in his department. (Ex. A 15:3-16:9.)
All exhibits referred to in this memorandum order are found in the Defendant's Evidence Index (Filing No. 25).
Demotion — January 15, 1996
On January 15, 1996, Bristol was removed as "Lead Person" and returned to his former position of "Paint Associate Level 4." (Ex. B(3).) The charge was based on allegations of two instances of inappropriate and unprofessional workplace conduct that occurred in June 1995 and January 1996. (Ex. B(2), B(3).) The first incident resulted in a June 3, 1995, corrective action for "abusive language," insubordination, and "horseplay." (Ex. B(2).) An employee complained that Bristol gave him a hand-drawn offensive picture. (Ex. B(2).) Bristol acknowledged that the incident occurred, stating that he handed the picture to the employee and asked the employee to "dispose of it properly." (Ex. A 39:21-40:18.)
The second incident resulting in Bristol's demotion occurred on January 9, 1996. (Ex. B(3).) Bristol acknowledged engaging in a prank by using another employee's computer to send an inappropriate e-mail message to department employees. (Ex. A 46:1-48:14.) The e-mail read:
I AM NOT KNOWN TO PARTAKE IN MANY ACTIVITIES BUT I VERY MUCH WOULD LIKE TO. IF YOU COULD ALL SHOW ME SOME LOVE I WOULD PROBABLY COME OUT OF THE CLOSET AND PERFORM . . . HUG A LUG SOMETIMES. I COULD BE VERY RECEPTIVE TO ANY OPEN POSITIONS THAT NEEDS [sic] TO BE FILLED . . . WE ALL NEED LOVE. CAN WE JUST GET ALONG.
OXOXOXOX
JIM L.
(Ex. B(3).)
Bristol acknowledged sending the e-mail, and he agreed that his conduct was unacceptable, particularly for a "Lead Person." (Ex. A 49:12-53:14.) The corrective action report relating to this second incident stated this was the second time Bristol harassed co-workers. The report also stated that Valmont would not tolerate such behavior, particularly from a "Lead Person." The recommended solution was that Bristol return to the position of "Paint Associate." (Ex. B(3).)
Termination — April 8, 1998
After his demotion, Bristol continued to receive corrective actions that resulted in his termination on April 8, 1998. (Ex. B(4)-B(11).) Summarily, the corrective actions included: three citations for poor work quality (Ex. B(4), (9), (10)); two violations of safety procedures (Ex. B(5),(6)); and three citations for wasting company time and "loafing" (Ex. B(6), (7), (8)). Each time, Bristol was cautioned that further inappropriate behavior would again result in disciplinary action and possibly termination. (Ex. B(2)-(10).) The final incident that resulted in Bristol's termination was based on poor work quality, loafing, wasting time, and providing false information. (Ex. B(11).)
Specifically, on April 12, 1996, Bristol received a corrective action based on poor work quality when he failed to follow instructions while painting a pole on April 11, 1996. Valmont incurred financial loss when the work had to be redone. (Ex. B(4).) Bristol did not deny the incident, and he referred to it as a "mistake." (Ex. A 56:21-57:24.)
On May 29, 1997, Bristol received a corrective action for violating safety procedures and unintentionally damaging company property on May 27, 1997. (Ex. B(5).) Bristol hung two poles, each weighing 1800 pounds, on hooks designed and rated for a maximum of 800 pounds. (Ex. B(5).) Bristol admitted the incident and its seriousness. (Ex. A 59:6-62:2.)
On July 18, 1997, Bristol received another corrective action report for violating safety procedures and "horseplay" or "wasting company time," based on the following actions that occurred on June 14, 1997: going repeatedly to his car during the work day; making personal telephone calls on company time; stopping work early to clean up and change to street clothes; and wearing sandals on the shop floor in violation of safety procedures. (Ex. B(6).) Bristol acknowledged that he had vehicle trouble that day and was checking his battery charger; otherwise, he denied the conduct. (Ex. A 62:15-63:2.) He refused to sign the corrective action report. (Ex. B(6).)
On November 17, 1997, Bristol received another corrective action final notice for wasting company time on November 9, 1997. Bristol was disciplined for conduct that occurred on November 9, 1997. (Ex. B(7).) Bristol offered no firm explanation for his actions. (Ex. A 66:9-70:10.)
Bristol was issued a final corrective action notice on February 4, 1998, for talking to a co-worker on the telephone for twenty minutes during work time on January 29, 1998. (Ex. B(8); Ex. A 83:8-85:22.) The corrective action notice stated that, based on improved job performance during the last sixty days, Bristol would be given another chance. However, the notice warned that further wasting of company time would "most likely result" in termination. (Ex. B(8).)
On February 20, 1998, Bristol received another corrective action report because he failed to follow specific procedures on February 18, 1998, resulting in six hours additional work and a delayed shipment to a customer. (Ex. B(9).) While Bristol acknowledged the incident and his deficient performance, he stated that the incident was "over exaggerated." (Ex. A 88:23-89:15.)
On or about March 25, 1998, Bristol was again cited for poor work quality after he damaged product and failed to clean paint equipment on the same day. (Ex. B(10).) Bristol did not dispute the incident, but argued that the cleanup issue was "nit-picking." (Ex. A 89:16-91:8.)
The final incident resulting in Bristol's April 8, 1998, termination involved poor job performance, loafing and providing false information to a lead person. According to the corrective action report, Bristol neglected "to touch up welds at the auto booth, and basically did nothing for four hours." (Ex. B(11).) Bristol's actions cost Valmont thousands of dollars. (Ex. B(11).) Bristol acknowledged that he worked that night with a less-experienced employee, and their job duties involved touching up poles with paint. (Ex. A 93:13-96:9.) Bristol decided that the poles did not need to be touched up, and he sent the poles to the next production area. (Ex. A 97:1-13.) Bristol stated that during the early part of his shift, he sat and read the Bible. (Ex. A 97:14-98:7.) Bristol admitted that he was wrong in not touching up the poles and that he deserved to be disciplined. (Ex. A108:12-109:11.) Bristol's termination notice was mailed to him. (Ex. B(11).)
Bristol received counseling relating to job performance after each corrective action, and he was repeatedly warned that additional unsatisfactory conduct would result in disciplinary action including discharge. (Ex. B, Aff. ¶ 6; Ex. B(4)-(10).)
On June 3, 1998, Bristol filed his charge of discrimination with the Nebraska Equal Opportunity Commission and the Equal Employment Opportunity Commission ("EEOC"). (Ex. A 23:1-15; Ex. B(1).)
On September 28, 2000, Bristol filed his pro se Complaint in this action against Valmont. Bristol alleged only the following: "Discrimination=Race, Age, Religion, Harassment and Retaliation." (Filing No. 1.) Bristol requested the following relief: "Reclaim monies owed. Not Job, unless in a higher position." (Filing No. 1.) Valmont, in its Answer, denied the allegations and asserted numerous affirmative defenses. (Filing No. 12.)
DISCUSSION
Valmont argues: 1) Bristol's claims arising out of his January 1996 demotion and other events are time-barred; 2) Bristol's race and age claims fail as a matter of law; 3) Bristol's retaliation claims fail as a matter of law; 4) Bristol's harassment claim fails as a matter of law; and (5) Bristol's religious discrimination claim fails as a matter of law.
Summary Judgment Standard
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party. U.S. ex rel. Quirk v. Madonna Towers, Inc., ___ F.3d ___, 2002 WL 130912, at *2 (8th Cir. Oct. 18, 2001). However, summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, 'the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
Finally, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D.Ill. 1994).
Application of Summary Judgment Standard
Claims Arising Out of January 1996 Demotion and Other Events are Not Time-barred
Both Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2000e-17 (2001), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634 (2001), generally require the filing of an administrative charge with the EEOC within 180 days of the alleged discriminatory conduct. 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(1). Walker v. St. Anthony's Med. Ctr., 881 F.2d 554, 556 (8th Cir. 1989). This requirement is ordinarily a prerequisite to a federal civil employment discrimination action. Id. However, under both Title VII and the ADEA, timely filing of an EEOC charge is not jurisdictional and may be extended by equitable tolling. Walker, 881 F.2d at 557 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)); Hill v. St. Louis Univ., 123 F.3d 1114, 1118 (8th Cir. 1997). However, the doctrine of equitable tolling is limited and "reserved for circumstances 'truly beyond the control of the plaintiff.'" Shempert v. Harwick Chem. Corp., 151 F.3d 793, 798 (8th Cir. 1998) (quoting Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989)). Such circumstances do not apply to Bristol's situation. While filing procedures should not be interpreted either too liberally or strictly, "'[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.'" Shempert, 151 F.3d at 797 (quoting Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).
The equitable tolling doctrine is appropriate where:
(1) a claimant has received inadequate notice; (2) a motion for appointment of counsel is pending; (3) the court has led the plaintiff to believe that he or she has done everything required of him or her; or (4) affirmative misconduct on the part of a defendant lulled the plaintiff into inaction.Id. (citation omitted).
In Bristol's case, his demotion was written in a corrective action report dated January 9, 1996, and was effective on January 15, 1996. (Ex. B((3).) Bristol was terminated on April 8, 1998. (Ex. B(11).) Bristol agrees that he filed his charge with the EEOC on June 3, 1998, the date on the charge. (Ex. A 23:1-15; Ex. B(1).) Bristol's charge, read in its entirety, alleges a pattern of unlawful employment discrimination. Bristol specifically set out the details of his demotion and disciplinary actions spanning the years 1995 through 1997. He also stated that he was terminated on April 8, 1998, "purportedly for not performing my job duties and for misuse of company time." (Ex. B(1).)
When alleged employment practices are "continuing" in nature, the limitations period does not begin to run until the last occurrence of discrimination. Hukkanen v. International Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir. 1993) (interpreting the Title VII 180-day limitations provision, § 2000e-5(e)(1), finding an alleged pattern of discrimination that culminated in discharge); International Bhd. of Elec. Workers v. Union Elec. Co., 761 F.2d 1257, 1258 n. 1 (8th Cir. 1985) (interpreting the ADEA limitations provision, § 626(d)(1), finding an alleged continuing practice and triggering of the limitations period by the termination of the allegedly unlawful practice).
Bristol alleged a pattern of discrimination "continuing" in nature, with the last alleged act of alleged discrimination occurring on April 8, 1998. Therefore, under §§ 2000e-5(e)(1) and 626(d)(1), the Court finds that Bristol's charge, filed on June 3, 1998, was timely within the applicable 180-day limitations period.
Race and Age Claims
Bristol Does Not Deny Underlying Events Leading to Termination
Valmont argues that Bristol did not deny the occurrence of the events underlying the numerous corrective actions. For example, he does not argue: failing to follow instructions in painting a pole on April 12, 1996 (Ex. A 56:21-57:24); violating safety procedures and damaging company property on May 29, 1997 by hanging two poles weighing about 1800 pounds on hooks designed and rated for no more than 800 pounds (Ex. A 59:6-62:2); going to his car during work time on June 14, 1997, to check a battery charger on his car (Ex. A 62:15-63:2); and having a personal telephone conversation for twenty minutes during work time (Ex. A 84:5-86:12). Moreover, Bristol did not offer any legitimate explanation for "wasting time" on November 9, 1997. (Ex. A 66:9-70:10.)
Also, Bristol agreed that his performance was not "up to par" in February 1998 when he failed to follow painting procedures resulting in six hours additional work and a delayed customer shipment (Ex. A 88:23-89:15), and he acknowledged that on March 25, 1998, he damaged product and failed to properly clean painting equipment. (Ex. A 89:16-91:8.)
Finally, Bristol admitted failing to properly paint poles and sitting while reading the Bible during work time. (Ex. A 97:14-98:7; 101:21-102:12.) This final incident resulted in Bristol's termination on April 8, 1998. All previous incidents discussed above were cited on Bristol's termination notice. (Ex. B(11).)
Racial Discrimination Claim
Summary judgment should be used sparingly in employment discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, the plaintiff must present more than a prima facie case to support a reasonable inference regarding the alleged reason for the employer's action. Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995). Whether the plaintiff's evidence is direct or circumstantial, the evidence "must be sufficient to raise a genuine issue of material fact regarding defendant's reason for the employment action taken." Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 (8th Cir. 1994).
In this racial discrimination suit, Bristol's prima facie case must show: 1) membership in a protected class; 2) he is qualified for the position, i.e., performed his job at a level that met Valmont's legitimate expectations; 3) adverse action was taken against him; and 4) some evidence allows an inference of improper motivation. Landon, 72 F.3d at 624 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The prima facie burden is not onerous, and it should not be confused with "the ultimate issue of racially-motivated action." Id. (citing Davenport, 30 F.3d at 944)).
Compare Ziegler v. Beverly Enterprises-Minn., Inc., 133 F.3d 671, 675 (8th Cir. 1998) (describing the second requirement as performing one's job "at a level that met [the] employer's expectations," noting that the plaintiff's evaluations were "replete" with negative comments about skills important to her position, and therefore the plaintiff could not prove she was "qualified" by satisfying the employer's "legitimate expectations") with Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir. 1994) (stating that requiring the plaintiff to prove more than whether she was qualified for the position in question exceeded the second requirement and essentially required the plaintiff to prove pretext and the ultimate issue of intentional discrimination).
The prima facie case differs somewhat on a case-by-case basis, depending on specific facts. Hindman v. Transkrit Corp., 145 F.3d 986, 990-91 (8th Cir. 1998); Ziegler, 133 F.3d 675; Davenport, 30 F.3d at 944 (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 n. 6 (1981)).
Ziegler is similar to Bristol's situation. Bristol's corrective action reports are "replete" with comments about his job performance that demonstrate his inability to "qualify" for his position as "Lead Person." Bristol does not deny the occurrence of the events in the reports, and they include numerous occurrences over many years of wasting time, "horseplay," and an inappropriate e-mail. Clearly, he was not satisfying his employer's "legitimate expectations." Therefore, this Court, under the particular facts of this case, follows the interpretation of the second prong of plaintiff's prima facie test that requires proof that Bristol performed his job at a level that met Valmont's legitimate expectations.
Once the plaintiff makes a prima facie case, the burden shifts to the employer to articulate a legitimate business reason for its action. Id. (citing McDonnell, 411 U.S. at 802). If the employer shows such a purpose, the burden shifts back to the plaintiff to meet a "more difficult standard: demonstrating that the employer's articulated reason for its action was i) a pretext ii) for unlawful discrimination." Id. at 625 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)).
In this case, Valmont argues that Bristol cannot satisfy the portion of the second requirement of his prima facie case that requires Bristol to meet Valmont's legitimate performance expectations. Defendant's Brief in Support of Motion for Summary Judgment at 10. Valmont argues that Bristol cannot satisfy this requirement by simply proving he is able to perform the job, but rather he must show he actually performed the job at a level that met Valmont's "legitimate expectations." Miller v. Citizens Sec. Group, Inc., 116 F.3d 343, 346 (8th Cir. 1997) (stating that Miller failed to show he met his employer's legitimate expectations and therefore the second requirement of his prima facie burden).
Valmont's relies on Bristol's seven separate corrective actions relating to poor job performance, violation of safety procedures, damaging company property, "horseplay" and "wasting" company time from April 12, 1996, through March 25, 1998, (Ex. B(4)-(10)) and on his April 8, 1998, termination for poor work performance, wasting company time and providing false information. (Ex. B(11).) Upon receiving each disciplinary report, Bristol was counseled and told that further unsatisfactory conduct might result in discharge. Bristol received one final warning in which Valmont warned of possible termination if inappropriate conduct continued. (Ex B, Aff. ¶ 10; B(10).)
Based on the evidence, Bristol cannot establish the second prima facie element of his case — that he met Valmont's legitimate expectations and was qualified for his position. Bristol's conclusory statements that he adequately performed his job are insufficient to overcome other evidence for summary judgment purposes. See Whitley v. Peer Review Systems, Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (affirming summary judgment in a 42 U.S.C. § 1981 context, finding plaintiff's conclusory statements that she adequately performed her job insufficient to overcome employer's specific evidence of deficiencies); Miller, 116 F.3d at 346-47 (stating that plaintiff's conclusory statements that he met company standards were insufficient to overcome summary judgment). Therefore, Bristol cannot prove a prima facie case of racial discrimination under Title VII.
Assuming, however, that Bristol met his burden of proving a prima facie case, the Court finds that the evidence described above in detail strongly support's Valmont's articulation of a legitimate business reason for its actions that culminated in Bristol's termination. Bristol did not adequately perform his job, and he admitted the occurrence of the events underlying the disciplinary reports. (Ex. B (4)-(11).)
Even considering Bristol's written argument submitted to the Court, Bristol has not submitted any evidence or argument showing pretext. For example, Bristol is unable to identify any similarly situated employee who engaged in the same conduct, yet was not disciplined or terminated by Valmont. The evidence refers to another employee, but that employee was not terminated and did not have a history of disciplinary action similar to Bristol's. (Ex. B, Aff. ¶ 9.) Therefore, no evidence supports the theory of disparate treatment. Scroggins v. University of Minn., 221 F.3d 1042, 1044 (8th Cir. 2000) (stating that a similarly situated employee must be similar in "all relevant aspects" and that the offense must be the same or of "comparable seriousness"); Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (discussing plaintiff's failure to prove the subordinate who was not disciplined was similarly situated).
Bristol's written argument consists of conclusory, irrelevant statements. Attached to the statements are: one page of what appears to be an undated multi-page newsletter indicating that Bristol at the unknown time period was working with "IMPACT," defined as "commitment and enthusiasm"; an unexplained list of names, addresses and telephone numbers; a hand drawn picture of a man, with a date indicating perhaps that the picture was photographed on May 30, 1992; a list of what Bristol states are his charges against Valmont.
For the reasons discussed, Bristol's claim of racial discrimination cannot survive summary judgment and must fail.
Age Discrimination Claim
The same burden of proof that applies in Title VII applies substantially to ADEA claims. See Roxas v. Presentation Coll., 90 F.3d 310, 315 (8th Cir. 1996); Rinehart v. City of Independence, 35 F.3d 1263, 1266 (8th Cir. 1994). The ADEA prohibits unlawful employment discrimination on the basis of age if the individual is over 40 years old. 29 U.S.C. § 623(a)(1), 631(a) (2001). See Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999). A plaintiff basing an ADEA claim on circumstantial evidence must initially establish a prima facie case of age discrimination within the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The elements of the prima facie case "are not inflexible and vary slightly with the specific facts of each case," Breeding, 164 F.3d at 1156, and include whether: 1) the plaintiff is within the protected age group; 2) the plaintiff performed at a level that met the employer's legitimate expectations; 3) the plaintiff suffered an adverse employment action; and 4) the employer did not take similar adverse employment action against nonmembers of the protected age group. Johnson v. Runyon, 137 F.3d 1081,1082 (8th Cir. 1998).
See discussion of the second element in footnote 4, supra.
If an employee establishes a prima facie case of discrimination under the ADEA, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer offers such a reason, the presumption of discrimination disappears. The burden then shifts back to the employee to show pretext, i.e., age discrimination was the true reason for the adverse employment actions. Ziegler, 133 F.3d at 675. The plaintiff can avoid summary judgment only by presenting evidence that "creates a question of material fact as to whether the [employer's] proffered reasons are pretextual" and "creates a reasonable inference that age was a determinative factor in the adverse employment decision." Hindman, 145 F.3d at 991; Miller, 116 F.3d at 347 (stating that "to survive summary judgment a plaintiff must present evidence of pretext and evidence from which a reasonable jury could infer that he was fired because of his age").
Applying the McDonnell analysis in Bristol's case, for the same reasons described above relating to Bristol's Title VII claim, Bristol cannot meet the second prong of the test for the same reasons described above relating to Bristol's Title VII claim. The evidence shows that Bristol did not meet Valmont's applicable legitimate expectations. See Whitley, 221 F.3d at 1055; Miller, 116 F.3d at 346. Even assuming that Bristol met his burden of showing a prima facie case, as in the Title VII context, Valmont submitted sufficient evidence showing that Valmont rebutted the presumption of discrimination with proof of legitimate, nondiscriminatory reasons for its actions. As discussed above in the Title VII context, Bristol acknowledges the underlying events supporting the disciplinary actions and discharge, and Valmont has submitted numerous legitimate reasons supporting its disciplinary action against Bristol. (Ex. B(4)-(11).)
The burden then shifts back to Bristol. Even considering his written argument, he is unable to show, for summary judgment purposes, sufficient evidence that creates a question of material fact as to whether Valmont's reasons are pretextual and create a reasonable inference that age was a determinative factor in its decisions.
Therefore, Bristol's ADEA of age discrimination under ADEA cannot survive summary judgment and must fail.
Retaliation Claim
"To establish a prima facie case of retaliatory discrimination, a plaintiff must show: (1) [he] engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal connection existed between participation in the protected activity and the adverse employment action." Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 713-14 (8th Cir. 2000), cert. denied, 531 U.S. 1077 (2001). In the absence of direct evidence, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), described above with regard to Bristol's Title VII and ADEA claims, applies to retaliation claims. Buettner, 216 F.3d at 713. "Ultimately, the plaintiff must establish the employer's adverse action was based on intentional discrimination." Id. at 714.
The Eighth Circuit has stated that the central question is not ultimately the "veracity of the facts underlying an employer's legitimate, non-discriminatory reason for discharging its employee, but rather concerns whether 'the employment decision was based on intentional discrimination.'" Stuart v. General Motors, Corp., 217 F.3d 621, 637 (8th Cir. 2000) (quoting Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997)). In other words, Bristol cannot succeed on summary judgment merely by disputing Valmont's reasons for its actions. Rather, Bristol must show both: 1) the reasons for the disciplinary action and termination were false; and 2) discrimination was the true reason. Id. at 634.
As stated above, Bristol does not dispute the events underlying the disciplinary action and his discharge. There is no evidence that Valmont's reasons were pretextual or that its actions were motivated by unlawful retaliation.
Therefore, Bristol's retaliation claim cannot survive summary judgment and must fail.
Harassment Claim
In his complaint, Bristol alleges "harassment." (Filing No. 1.) In order to prove a hostile work environment claim, Bristol must prove: 1) membership in a protected class; 2) the occurrence of unwelcome harassment; 3) a causal nexus between harassment and his membership in the protected group; 4) the harassment affected a term, condition or privilege of employment; and 5) Valmont knew or should have known of the harassment and failed to take prompt and effective remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999).
Although Bristol acknowledges the events underlying his disciplinary action, Bristol infers that Valmont's actions constitute unlawful harassment. (Ex. A 53:20-54:4; 56:21-57:24; 59:20-60:22; 90:1-91:8.) Bristol appears to use the term "harassment" in a lay, rather than a legal, context. The evidence before the Court shows that Valmont's actions taken in response to job performance issues do not constitute unlawful "harassment" and were not "severe or pervasive enough to create an objectionably hostile or abusive work environment." See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
As discussed above, Bristol was given several opportunities to correct his performance. He also received seven corrective actions after his demotion and before the final incident for which he was ultimately discharged in April 1998.
For the reasons discussed, Bristol's harassment claim cannot survive summary judgment and must fail.
Religious Discrimination Claim
Bristol also alleges that he was subjected to religious discrimination during his employment. His claim is based on the occasion when he sat and read the Bible and was then terminated for poor job performance and wasting company time in April 1998. (Ex. A 82:15-21.)
In order to establish a prima facie case of religious discrimination, Bristol must show: 1) he has a bona fide religious belief that conflicts with an employment requirement; 2) the employee told the employer about this belief; 3) he was disciplined for failing to comply with a conflicting employment requirement. Wilson v. West Communications, 58 F.3d 1337, 1340 (8th Cir. 1995).
The evidence fails to show that Bristol had a religious belief that conflicted with Valmont's employment requirements or that he told Valmont about his religious beliefs.
Therefore, Bristol's religious discrimination claim cannot survive summary judgment and must fail.
CONCLUSION
For the reasons discussed, the Court finds that the Defendant's Motion for Summary Judgment (Filing No. 24) should be granted, and a separate judgment will be filed.
JUDGMENT
LAURIE SMITH CAMP, United States District Judge.
For the reasons discussed in the accompanying memorandum and order,
IT IS ORDERED:
1. The Defendant's Motion for Summary Judgment (Filing No. 24) is granted;
2. Judgment is entered for the Defendant and against the Plaintiff;
3. The Complaint (Filing No. 1) is dismissed with prejudice; and
4. Each party shall pay its own costs and fees.