Opinion
No. C99-4103-PAZ
February 2, 2001
ORDER ON MOTION FOR SUMMARY JUDGMENT
This case requires the court to consider whether the defendants discriminated against the plaintiff because of her pregnancy, in violation of her civil rights. This matter is before the court on the defendants' motion for summary judgment (Doc. No. 21), filed December 1, 2000. The motion is supported by a statement of undisputed facts (Doc. No. 23), three affidavits (Doc. Nos. 24, 25, and 26), and a brief (Doc. No. 22). The plaintiff resisted the motion on January 23, 2000 (Doc. No. 34), supporting her resistance with a statement of undisputed material facts (Doc. No. 35) and a brief (Doc. No. 37). On January 30, 2001, the defendant filed a reply brief (Doc. No. 43) and a supplemental appendix (Doc. No. 41). The court has reviewed the entire record in this matter and considered the arguments of counsel. Finding this matter to be ready for decision, the court turns to consideration of the issues raised in the defendants' motion.
I. INTRODUCTION
The plaintiff Jodi M. Madsen ("Madsen") claims the defendants discriminated against her because of her pregnancy, in violation of the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), and the Iowa Civil Rights Act of 1965, as amended, Iowa Code chapter 216 (1997) ("ICRA"). Madsen asserts she has direct evidence to establish this discrimination. Alternatively, she asserts she has circumstantial evidence to establish a prima facie case of disparate treatment.
The defendants respond that the plaintiff has produced no direct evidence of discrimination and has failed to establish a prima facie case of disparate treatment. The defendants also claim that even if the plaintiff has established a prima facie case, the defendants have set forth a legitimate, non-discriminatory reason for their actions.
Prior to filing this action, Madsen exhausted the appropriate administrative remedies, and obtained a right-to-sue letter from the Iowa Civil Rights Commission. ( See Exhibit A to Doc. No. 1). This action was commenced by the filing of a complaint on November 16, 1999. (Doc. No. 1) On January 3, 2000, the defendants filed an answer, generally denying the allegations in the complaint. (Doc. No. 6) Upon the consent of the parties, on October 24, 2000, this matter was referred by Judge Donald E. O'Brien to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. No. 9)
II. FINDINGS OF FACT
The defendant LDC Corporation ("Randall's") does business in Sioux City, Iowa, as "Randall's Bridal and Formal Wear." On January 20, 1998, Madsen was hired by Randall's as a "bridal sales consultant." Doc. No. 22, Ex. 2; Doc. No. 35, ¶ 1. Defendant Mary Hansen ("M. Hansen"), the "bridal sales manager," was Madsen's immediate supervisor. Defendant Patricia Hanson ("P. Hanson") was the "bridal department manager" and a Vice President of Randall's. According to P. Hanson, in January 1999, Randall's had twenty-four full-time employees and fourteen part-time employees, and of these, thirty-four were women. Doc. No. 25, ¶ 2.
On March 26, 1998, after Madsen had worked for Randall's for about two months, she was given a written warning for excessive absenteeism. Doc. No. 35, ¶ 4. The warning, which was signed by M. Hansen and Madsen, contained the following statement: "Due to continued absenteeism, as of this date you are placed on a 90 day probationery [sic] period. Within this 90 day period, if you are absent you will be terminated." Doc. No. 24, Ex. A.
Time records indicate that previous to the warning, Madsen had been absent on four days: February 24, March 6, March 20, and March 25. See Doc. No. 35, ¶ 5.
On April 15, 1998, Madsen learned she was pregnant. Doc. No. 35, ¶ 2. According to Randall's, this fact became common knowledge a short time later, when Madsen showed her co-employees an ultrasound of the baby. Doc. No 24, ¶ 3; Doc. No. 25, ¶ 3. According to Madsen, she privately notified M. Hansen and P. Hanson of her pregnancy shortly after learning she was pregnant, and she did not show the ultrasound around the office until a month later. Doc. No. 26, pp. 96-100; but see, Doc. No. 35, ¶ 3.
According to M. Hansen, Madsen's work performance was substandard before anyone at Randall's knew of her pregnancy, and it deteriorated after that. In an affidavit submitted to the court in support of the motion for summary judgment, M. Hansen made the following statement about Madsen's job performance:
Jodi's work performance was not good compared to that of her co-workers. She repeatedly did not follow company policies concerning special ordering merchandise, figuring discounts, documenting correct style numbers, and entering information into the computer. She also did not take correction from me and would become disrespectful and belligerent.
Doc. No. 24, ¶ 2.
On April 16, 1998, and on the afternoon of May 19, 1998, Madsen again was absent from work. On May 19th, she was given a second written warning by M. Hansen. Doc. No. 35, ¶ 7. The warning, which again was signed M. Hansen and Madsen, contained the following statement:
On Saturday, May 16, 1998, you were working with your customer and requested [to] leave because someone was waiting for you. You then proceeded to walk the customer out the door and requested Eric let them out and lock the door behind them. You then left. Your are quite aware of the responsibilities of closing the store. When you left this put added duties on the rest of the department. An error was made on the last customer you had assisted. There was a $16.00 cash overage on the account which will need to be returned to the customers.
When you are in more of a hurry to leave and are not staying focused on your job responsibilities mistakes are made and when you left early on Saturday you basically left your mistakes for someone else to figure out. We are striving to maintain the "team approach" at Randall's and this behavior is not acceptable.
Doc. No. 24, Ex. E. Madsen was late to work on June 4, she left work early on June 6 and June 11, and she was absent from work on June 12 and 13, 1998.
Madsen alleges, and M. Hansen conceded in her deposition, that Madsen often left work early, with M. Hansen's knowledge and consent, to see her doctor in connection with her pregnancy. Doc. No. 35, ¶ 18.
According to M. Hansen, on June 26, 1998, a customer complained about rude treatment by Madsen. Madsen left early that day, and again on June 27 and July 1., 1998. According to M. Hansen, on July 16, another customer complained that Madsen was rude, and Madsen left early on July 17, 1998. According to M. Hansen, on July 18, 1998, another customer complained about Madsen. Madsen left early on July 24, and August 11, and she was absent on August 12 and 18, 1998.
On August 19, 1998, Madsen left early after a confrontation with management in which Madsen was told to stop selling candles to co-employees during work hours. According to Madsen, although she was aware that Randall's had a policy prohibiting its employees from soliciting other employees at work (Doc. No. 35, ¶ 10), the policy was not enforced consistently or uniformly. Doc. No. 35, ¶ 11.
According to M. Hansen, on August 20, 1998, Madsen called M. Hansen and stated she was not returning to work because of stress. M. Hansen contacted Madsen's doctor, who faxed a note to Randall's excusing Madsen from work until Monday, August 24, 1998, "[d]ue to complications of pregnancy." Doc. No. 24, Ex. H. Doc. No. 35, ¶ 9. Madsen did not return to work on August 20, 21, or 22, 1998. When Madsen returned to work on August 25, 1998, P. Hanson gave her a written warning for excessive absenteeism. Doc. No. 24, Ex. G; Doc. No. 25, ¶ 4; Doc. No. 35, ¶ 8. According to M. Hansen, on August 29, 1998, Madsen had a conflict with a co-employee about the handling of a customer, and then raised her voice to M. Hansen and two co-employees and made a comment that she was being "treated like shit." Doc. No. 24, ¶ 13.
"Due to excessive absenteeism, if you are absent without written approval after August 25, 1998, you will be terminated." The warning was signed by P. Hanson, but not by Madsen. The warning contained a handwritten statement, initialed by P. Hanson, that "Jodi refused to sign this."
According to P. Hanson, Madsen did not request any accommodation for her pregnancy until September 1, 1998, when she provided Randall's with a note from her doctor restricting her work day to four hours. Doc. No. 24, Ex. J; Doc. No. 25, ¶ 4; Doc. No. 35, ¶ 12. After receiving the doctor's note, Randall's reduced Madsen's work schedule to four hours per day. On September 3, 1998, Madsen met with M. Hansen to complain about her work schedule. Doc. No. 24, ¶ 14; Doc. No. 35, ¶ 17. Madsen asked to work from 10:00 a.m. to 2:00 p.m., but M. Hansen told Madsen that she would have to work later in the day, when Randall's was busier. Id.
On September 4, 1998, Madsen was confronted about using a business telephone for more than the allowed five minutes, and according to M. Hansen, Madsen "didn't take it well." Doc. No. 24, ¶ 15. According to Madsen, the phone call was to her doctor while she was on an unpaid thirty-minute break. Doc. 24, Ex. M., p. 4; Doc. No. 26, p. 105. Madsen states she was "written up" for the incident and placed on a 90-day probation, although there is no record of the "write up" or of the probation, and Randall's denies Madsen was written up or placed on probation. Id; Doc. No. 25, Attachment, Item B.1.
Madsen did not come to work on September 12, 16, 19, 29, and October 3, 1998, and worked less than four hours on September 8, October 1 and 2, 1998.
Her doctor excused her from work on this date. Doc. 24, Ex. M., p. 12.
Beginning October 2, 1998, Madsen was on leave for the birth of her child, who was born on October 29, 1998. Doc. No. 24, Ex. M, p. 11; Doc. No. 35, ¶ 6. When she returned to work on January 12, 1999, she was given the following notice:
Re: Return from Leave interview — Jodi Madsen
The following issues are to be addressed and corrected by Jodi Madsen for continued employment with Randall's. Non compliance with any of these issues will be considered terms for immediate dismissal.
1. Any absence off of the prepared work schedule will not be accepted.
2. Any insubordinate action or remarks regarding employment or employer will not be tolerated.
3. Any disruption of fellow employee's [sic] ability to perform their duties will not be tolerated.
4. Absolutely no solicitation of any merchandise and/or service to other employee[s] will be allowed.
5. Absolutely no contact with a Randall's vendor or supplier will be tolerated.
6. Disregard for company policies and procedures will not be tolerated.
Refusal to accept these terms will terminate any further association with Randall[']s.
Doc. No. 24, Ex. K; Doc. No. 35, ¶ 13. Madsen signed the notice, stating she accepted the "terms and conditions as stated."
On January 21, 1999, a Randall's sales associate made a sale of bridesmaid dresses to a customer, and was credited with the commission. On January 28, 1999, Madsen asked M. Hansen why the commission was not credited to her. Randall's management checked the computer records for January 29, 1999, and the records indicated Madsen had shown the dresses to the customer before the sale. Randall's management then checked the computer backup tape from January 25, 1999, and found no record of Madsen having shown the dresses to the customer. Randall's concluded Madsen had altered the records to show falsely that she was entitled to the commission. Doc. No. 24, ¶ 19, Ex. L, Ex. M, ¶ 12; Doc. No. 25, ¶ 6.
Madsen was terminated on January 30, 1999, by M. Hansen, defendant Lynn Hansen ("L. Hansen"), and Maureen Spain ("Spain"), the office manager. According to M. Hansen, the reasons for Madsen's termination were as follows:
According to Madsen, Maureen Spain "was the overall office manager for Randall's Sioux City bridal sales store where plaintiff was employed, and accordingly had the authority to make employment decisions regarding plaintiff, including recommending disciplinary action and/or termination of plaintiff's employment." Doc. No. 35, ¶ 22.
She was terminated because she disrupted her fellow employee's [sic] ability to do their work and for disregarding company policies and procedures. This included her attendance, attitude, and actual work performance. Finally, we believed that she had tampered with the computer to try to change a commission on the sale of dresses to herself. It was the final act. We viewed this as dishonesty. No one else had previously done this.
Doc. No. 24, ¶ 19; Doc. No. 35, ¶ 16. According to Madsen, she was told by L. Hansen and M. Hansen that her employment was terminated for "computer tampering." Doc. 26, p. 169; Doc. No. 35, ¶ 14-15.
At an unemployment hearing following Madsen's discharge, the sales associate who made the January 21, 1999, sale that led to Madsen's discharge admitted she, rather than Madsen, might have added the information about the dresses to Randall's computer records. Doc. No. 25, ¶ 7.
Madsen alleges that on numerous occasions after April 15, 1998, Spain verbally
criticized her in front of other employees for taking leaves of absence due to pregnancy. Doc. No. 35, ¶ 31. Madsen also alleges the defendants "increased their scrutiny and criticisms of plaintiff but not of her nonpregnant co-employees." Doc. No. 35, ¶ 30. She claims the defendants required her to work more than four hours per day in violation of her doctor's restrictions. Doc. No. 35, ¶ 34. She also claims "[n]onpregnant `similarly situated' employees were not reprimanded for using the company telephone in excess of five minutes." Doc. No. 35, ¶ 39. Madsen alleges she performed her job as a bridal sales consultant "in a competent fashion before and after April 15, 1998." Doc. No. 35, ¶ 33.
III. LEGAL ANALYSIS A. Standards for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment and provides that either party to a lawsuit may move for summary judgment without the need for supporting affidavits. Fed.R.Civ.P. 56(a) (b). Rule 56 further states that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c) (emphasis added). "A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, . . . and give [the nonmoving party] the benefit of all reasonable inferences that can be drawn from the facts." Lockhart v. Cedar Rapids Comm. Sch. Dist., 963 F. Supp. 805, 814 (N.D.Iowa 1997) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). A genuine issue of material fact is one with a real basis in the record. Lockhart, 963 F. Supp. at 814 n. 3 (citing Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56).
The party seeking summary judgment must "`inform the district court of the basis for [its] motion and identify those portions of the record which show lack of a genuine issue.'" Lockhart, 963 F. Supp. at 814 (quoting Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992)); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden under Rule 56 of showing there is no genuine issue of material fact, the nonmoving party, "by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Lockhart, 963 F. Supp. at 814 (citing Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356).
E.g., by "affidavits . . . supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Fed.R.Civ.P. 56(e).
Addressing the quantum of proof necessary to successfully oppose a motion for summary judgment, the United States Supreme Court has explained the nonmoving party must produce sufficient evidence to permit "`a reasonable jury [to] return a verdict for the nonmoving party.'" Lockhart, 963 F. Supp. at 815 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). Furthermore, the Court has held the trial court must dispose of claims unsupported by fact and determine whether a genuine issue for trial exists, rather than "weigh the evidence and determine the truth of the matter." Lockhart, 963 F. Supp. at 815 (citing Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11; Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53; and Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56).
Thus, if the defendants show no genuine issue exists for trial, and if Madsen cannot advance sufficient evidence to refute that showing, then the defendants are entitled to judgment as a matter of law, and the court must grant summary judgment in the defendants's favor. If, on the other hand, the court "can conclude that a reasonable trier of fact could return a verdict for [Madsen], then summary judgment should not be granted." Lockhart, 963 F. Supp. at 815 (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510).
Special care must be given to summary judgment motions in employment discrimination cases. As the Honorable Mark W. Bennett explained in Bauer v. Metz Baking Co. 59 F. Supp.2d 896, 900-901 (N.D.Iowa 1999):
The court has often stated that "summary judgment should seldom be used in employment-discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (citing Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989)); see also Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1204 (8th Cir. 1997) (citing Crawford); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 615 (8th Cir. 1997) (quoting Crawford); Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997) ("We must also keep in mind, as our court has previously cautioned, that summary judgment should be used sparingly in employment discrimination cases," citing Crawford); Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (quoting Crawford); Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995) ("summary judgments should only be used sparingly in employment discrimination cases," citing Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir. 1990); Hillebrand, 827 F.2d at 364). Consequently, summary judgment is appropriate in employment discrimination cases only in "those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson, 931 F.2d at 1244; see also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir. 1995) (quoting Johnson, 931 F.2d at 1244); Crawford, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244).
Keeping these standards in mind, the court now will address the defendants' motion for summary judgment.
B. The Pregnancy Discrimination Act
Madsen claims she was discriminated against in the terms, conditions, or privileges of her employment at Randall's because of her pregnancy. In particular, she claims the defendants subjected her to verbal and nonverbal sex discrimination, retaliation, and harassment because of her pregnancy to the extent that she was working in a "pervasive and hostile work environment." Doc. No. 1, ¶¶ 13-14.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., makes it unlawful for an employer "to discriminate against any individual, with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). The words "because of sex" are defined by the PDA to include "pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). As the court explained in Byrd v. Lakeshore Hospital, 30 F.3d 1380, 1382 (11th Cir. 1994):
It is today a settled principle that the PDA and Title VII are violated when pregnant employees are denied privileges afforded non-pregnant temporarily disabled employees. See International Union UAW v. Johnson Controls, 499 U.S. 187, 197, 111 S.Ct. 1196, 1202, 113 L.Ed.2d 158 (1991) (fetal protection policy violated PDA where "[f]ertile men, but not fertile women, [were] given a choice as to whether they wish[ed] to risk their reproductive health"); Newport News [ Shipbuilding Dry Dock Co. v. E.E.O.C., 462 U.S. [669,] 684, 103 S.Ct. [2622,] 2631[, 77 L.Ed.2d 89 (1983)] (PDA "makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions"). Such a denial of privileges contravenes "the basic principle of the Act," which is "that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work." H.R. No. 95-948, 95th Cong. 2d Sess. § 1(a) (1978).
Because a claim under the PDA is, in effect, a Title VII claim, Madsen's claim will be analyzed in the same manner as other federal employment discrimination claims.
Federal employment discrimination cases may be decided using two alternate methods of analysis. "A plaintiff asserting employment discrimination must make out a submissible case under either the direct evidence framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), or the indirect evidence, burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Bauer v. Metz Baking Co., 59 F. Supp.2d 896, 901-902 (N.D.Iowa 1999) (Bennett, J.) (citing Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999)).
Although federal law is not controlling on claims under the ICRA, see Mercer v. City of Cedar Rapids, 104 F. Supp.2d 1130, 1155 (N.D.Iowa 2000); Vivian v. Madison, 601 N.W.2d 872, 873-74 (Iowa 1999), Iowa courts look to federal law, regulatory interpretations, and case law to construe claims under the ICRA. Cf. Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997); Fuller v. Iowa Dept. of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998); Probasco v. Iowa Civil Rights Comm'n, 420 N.W.2d 432, 435 (Iowa 1988). In the present case, the analysis of Madsen's claim under federal law also will be determinative of her claim under the ICRA. See Atwood v. City of Des Moines, 485 N.W.2d 657, 659-60 (Iowa 1992) (applying federal law to a pregnancy discrimination claim under the ICRA); Goethals v. Mueller, 1999 WL 1020545 (Iowa Ct.App. 1999) (same); see also Walsted v. Woodbury County, 113 F. Supp.2d 1318, 1342 (N.D.Iowa 2000) (citing IOWA CODE § 216.6; Sierra v. Employment Appeal Bd., 508 N.W.2d 719, 722 (Iowa 1993)).
C. Direct Evidence Framework
In the context of an employment discrimination case, direct evidence means 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 employer's decision. Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997) (quoting Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995) (internal quotation omitted)). In Breeding v. Arthur J. Gallagher Co., the Eighth Circuit Court of Appeals described the direct evidence framework for analyzing employment discrimination cases as follows:
"When a plaintiff puts forth direct evidence that an illegal criterion, such as age [or sex], was used in the employer's decision to terminate the plaintiff," we apply the standards enunciated in Price Waterhouse v. Hopkins, as modified by § 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m). Fast v. Southern Union Co., 149 F.3d 885, 889 (8th Cir. 1998). Under this modified Price Waterhouse standard, a defendant is liable for discrimination upon proof by direct evidence that an employer acted on the basis of a discriminatory motive, and proof that the employer would have made the same decision absent the discriminatory motive is only relevant to determining the appropriate remedy. See id.164 F.3d 1151, 1156 (8th Cir. 1999).
The Eighth Circuit further defined "direct evidence" in the context of sex discrimination claims in Kerns v. Capital Graphics, Inc., 178 F.3d 1011 (8th Cir. 1999):
Direct evidence is evidence of conduct or statements by persons involved in the decisionmaking process that is sufficient for a factfinder to find that a discriminatory attitude was more likely than not a motivating factor in the employer's decision. See Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998). Such evidence might include proof of an admission that gender was the reason for an action, discriminatory references to the particular employee in a work context, or stated hostility to women being in the workplace at all. Compare id. at 635; Stacks v. Southwestern Bell, 27 F.3d 1316, 1323 (8th Cir. 1994) with Rivers-Frison v. Southeast Mo. Community Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998). [The plaintiff] relies on evidence that [her supervisor] made sexist and sexual comments and that the company was aware of at least some of these. None of the statements related either to [the plaintiff] herself or the abilities of women employees, however. There is no direct evidence that [her supervisor] took disciplinary actions against [the plaintiff] because she is female, and therefore the McDonnell Douglas analysis should be used rather than the mixed motive test of Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).178 F.3d at 1018; accord Bauer v. Metz Baking Co., supra, 59 F. Supp. at 902 (citing as in accord, "Simmons v. Oce-USA, Inc., 174 F.3d 913, 915 (8th Cir. 1999) (same standards in a race discrimination case); Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999) (age discrimination)").
Boorish behavior on the part of an employer does not, by itself, prove discrimination. Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir. 1997) (citing Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)). "The [PDA] does not . . . require employers to . . . take steps to make it easier for pregnant women to work — to make it as easy, say, as it is for their spouses to continue working during pregnancy. . . . Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees . . . ." Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1317 (11th Cir. 1994) (quoting Troupe v. May Dep't Stores, 20 F.3d 734, 738 (7th Cir. 1994)).
For example, in Geier, the Seventh Circuit found no direct evidence of discrimination where an employer made the following statements to his employee:
Upon return from her honeymoon, [plaintiff's supervisor] asked her whether she planned to have a family. [He] then said to [plaintiff], "Have all the kids you would like — between spring, summer, and fall. I will not work your territory during the winter months." In September 1991, [plaintiff] became pregnant, and in early October 1991, she was confined to bed because of problems with her pregnancy. [Her supervisor] telephoned [plaintiff] at home once or twice a day and instructed her to continue to call her accounts if she wanted to keep her job. [Plaintiff] made the calls. [Plaintiff] was admitted to the hospital a week later. Undeterred, [the supervisor] telephoned [plaintiff] at the hospital once or twice a day and instructed her to close a deal with a client. [Plaintiff] again made the calls. On October 23, [plaintiff] miscarried. While [plaintiff] was at home recovering, [her supervisor] called her early in the morning to say "get out of your G_d d__n bed and call your accounts if you want to keep your f_____g job."Geier, 99 F.3d at 240-41.
In Troupe v. May Department Stores, 20 F.3d 734 (7th Cir. 1994), the court found no direct evidence of discrimination where the plaintiff
testified at her deposition that on the way to the meeting with the defendants' human resources manager at which she was fired, [her supervisor] told her that "I [plaintiff Troupe] was going to be terminated because she [supervisor Rauch] didn't think I was coming back to work after I had my baby." Troupe was due to begin her maternity leave the next day.Id. at 735-36.
With respect to the inferences that may be drawn from statements reflecting a discriminatory attitude, Judge Bennett pointed to the following language from Simmons v. Oce-USA, Inc., supra:
"Not all comments that may reflect a discriminatory attitude are sufficiently related to the adverse employment action in question to support such an inference." Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999). Stray remarks made in the workplace are not sufficient to establish a claim of discrimination. See Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (quoting Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775).Simmons, 174 F.3d at 915-16[.]
Bauer, 59 F. Supp.2d at 902-903.
Judge Bennett also discussed the requirement of a causal link between any such comments and the adverse employment action:
Where comments are not "close in time" to an adverse employment decision, the plaintiff "must establish a causal link between the comments and his [or her] termination." [Simmons] at 916 (citing Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 779 (8th Cir. 1995); see also Walton, 167 F.3d at 426-27 (even if a comment might evidence discriminatory animus in some context, if the comment is distant in time from adverse action, and there is no evidence of a "causal link" between the comment and the decisional process leading to the adverse action, a direct evidence claim fails)). "Absent a causal link between the [derogatory] comments and the adverse employment decision, [the speaker's] derogatory language is best classified as `statement[s] by [a] decisionmaker unrelated to the decisional process.'" Id. (quoting Rivers-Frison v. Southeast Mo. Community Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998), in turn quoting Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775); Walton, 167 F.3d at 426 ("For example, `stray remarks in the workplace,' `statements of nondecisionmakers,' or `statements by decisionmakers unrelated to the decisional process itself' will not suffice.") (some internal quotation marks omitted); Breeding, 164 F.3d at 1157 (comments that were "not related to the decisional process" were not sufficient).Bauer, 59 F. Supp.2d at 903. "To be probative of discrimination, isolated comments must be . . . causally related to the . . . decision-making process." Geier, 99 F.3d at 242 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 1804-05, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring)).
In accordance with these standards, Madsen claims she has produced the following direct evidence of discrimination: (1) critical, derogatory comments by Spain, the office manager; (2) the requirement that Madsen sign off on written disciplinary memoranda during her pregnancy; (3) the requirement that Madsen sign a `last chance' agreement upon her return from pregnancy leave when other, nonpregnant employees who were granted leaves of absence were not required to sign such an agreement; (4) permission granted to nonpregnant employees to leave work early or adjust their work hours for personal reasons, and the lack of similar accommodations for Madsen; (5) unfounded accusations of computer tampering against Madsen; (6) Randall's failure to send Madsen notice of an increase in group medical insurance premiums while she was on maternity leave, when the notice was sent to all other employees; and (7) unfair and uneven application to Madsen of the company policy against solicitation of co-employees. Doc. No. 37, pp. 11-15. The court will deal with each of these allegations separately.
1. Critical, derogatory comments by Spain
Michelle Mitchell, a Randall's employee, testified in her deposition that Spain made negative comments about Madsen's absenteeism. Mitchell also testified she heard Spain make the following comment about Madsen: "Oh, I suppose she's sick again today. I suppose she's going to blame this on her pregnancy." She also testified she heard Spain say, "[Madsen]'s just using the pregnancy as an excuse." On another occasion, according to Mitchell, Spain said, "Just because [Madsen]'s pregnant doesn't mean they should let her pick her own hours."
None of these remarks is direct evidence of employment discrimination. Most are just complaints about Madsen's frequent absences. "The Pregnancy Discrimination Act requires the employer to ignore an employee's pregnancy, but . . . not her absence from work, unless the employer overlooks the comparable absences of nonpregnant employees. Troupe, supra, 20 F.3d at 738. See also, Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 437 (8th Cir. 1998). The last remark, about Madsen wanting to pick her own hours, has not been shown to have any relationship to Madsen's pregnancy. The adverse employment action against Madsen occurred when she was no longer pregnant, well after any of these remarks was made.
Furthermore, none of these remarks refer to the decision-making process, and there is no showing of a causal link between the statements and the adverse action taken against Madsen. See Troupe, supra, 20 F.3d at 738 (The plaintiff "made no effort to show that if all the pertinent facts were as they are except for the fact of her pregnancy, she would not have been fired. So in the end she has no evidence from which a rational trier of fact could infer that she was a victim of pregnancy discrimination."). See also Bauer, 59 F. Supp.2d at 902. Thus, these statements do not constitute direct evidence that Randall's discharged Madsen because of her pregnancy.
2. Requirement that Madsen sign disciplinary memoranda
Madsen argues she was required to sign off on written disciplinary memoranda during her pregnancy, and "there is no evidence that other `similarly situated' nonpregnant employees were also required to execute such documents for missing work." Doc. No. 37, p. 12. This argument misstates the obligations of the parties in summary judgment proceedings. The party opposing summary judgment has the burden of showing facts in opposition to a motion for summary judgment. Lockhart, 963 F. Supp. at 815. Madsen has failed to make such a showing on this point. In any event, Madsen has not demonstrated a causal link between this requirement and either Madsen's pregnancy or the termination of her employment.
3. Requirement that Madsen sign `last chance' agreement
Madsen argues she was required "to sign a `last chance agreement' upon her return from pregnancy leave, when two other `similarly situated' nonpregnant employees who were granted leaves of absence were not required to sign agreements upon their return to employment." Doc. No. 37, p. 12. There is no showing that the nonpregnant employees were, in fact, similarly situated to Madsen. Also, there again has been no showing of a causal link between this requirement and either Madsen's pregnancy or the termination of her employment.
Madsen has not shown the other employees had similar disciplinary histories, including repeated absences and failure to follow company policies. "[E]mployees identified for comparison must be `similarly situated in all relevant respects[.]'" Mercer v. City of Cedar Rapids, 104 F. Supp.2d 1130, 1144 (N.D.Iowa 2000) (Bennett, C.J.).
4. Refusal to grant Madsen's requested work schedule
Madsen argues Randall's "granted nonpregnant employees permission to leave work early or adjust their work hours for personal reasons, but refused to make similar accommodations to [Madsen]." Doc. No. 37, pp. 12-13. This claim encompasses two separate complaints: (a) other nonpregnant employees were permitted to leave work early, and (b) other nonpregnant employees were permitted to "adjust their work hours for personal reasons."
Neither of these complaints is supported by the record. As to the complaint that nonpregnant employees were permitted to leave work early without consequences, Madsen has cited to testimony by co-employee Mitchell that another employee, Shelly Nelson, had left work early on several occasions, and Mitchell was not aware of any taken against Nelson for her absences. This, of course, proves nothing, because Mitchell's testimony did not establish whether Nelson was criticized by Randall's for her absences, only that Mitchell was not aware of how Randall's handled Nelson's absences. No evidence at all was offered to support the assertion that other nonpregnant employees were permitted to select the hours they wanted to work. In any event, an employer is not required to allow its pregnant employees to select the hours they would like to work unless they do so routinely for nonpregnant employees. See Armstrong, supra p. 16.
5. Accusations of Computer Tampering
Madsen argues Randall's made false accusations of computer tampering against her, and these false accusations constitute direct evidence of employment discrimination. This is a leap in logic that is unsupported by anything in the record.
Randall's terminated Madsen's employment, in part, because it reasonably believed Madsen had tampered with its computer records. There is nothing in the record to show this allegation was pretextual or was not otherwise based on the evidence Randall's had at its disposal at the time. There is no obvious connection between discharging an employee because of dishonesty and pregnancy discrimination. Madsen argues, however, that because these allegations were proven to be false at an unemployment hearing, where a co-employee admitted that she, rather than Madsen, might have altered the computer records, this constitutes direct evidence of pregnancy discrimination.
The obvious flaw in the argument is that even if Randall's was mistaken in believing Madsen had tampered with the computer records, this mistaken belief, rather than Madsen's pregnancy, was the motivation for terminating her employment. There is nothing to show anyone involved in the decision-making process was aware that the charge of dishonesty was possibly false. Without such a showing, a fortiori, there is no showing of a causal connection between the termination and Madsen's pregnancy.
6. Failure to send notice of increased insurance premiums
Madsen claims Randall's failure to send her a notice concerning an increase in group medical insurance premiums while she was on pregnancy leave constitutes direct evidence of discrimination. Randall's responds that it did not send Madsen the notice because it believed Madsen was not returning to work after her pregnancy.
There has been no showing of any connection between the failure of Randall's to send the insurance notice to Madsen and the termination of her employment. Accordingly, this is not direct evidence of pregnancy discrimination.
7. Unfair and uneven enforcement of solicitation policy
Madsen argues the company policy against solicitation of co-employees was applied to her unfairly and unevenly, and that this is direct evidence of pregnancy discrimination. In support of this argument, she points to the testimony of M. Hansen that two other employees sold and delivered products to co-employees during company work hours and on company property without being disciplined.
Madsen is correct that it appears the policies were enforced unfairly and arbitrarily. But see Doc. No. 43, pp. 4-5. However, again, there is no showing of any connection between the disciplinary notice given to Madsen in August 1998, for co-employee solicitation, and either her pregnancy or the termination of her employment in January 1999. This is not direct evidence of employment discrimination.
The court finds all of this evidence, whether viewed separately or together, fails to satisfy the direct evidence requirements of the Price Waterhouse analysis. Accordingly, the defendants are entitled to summary judgment on this theory.
D. Indirect Evidence, Burden-Shifting Framework
When there is no direct evidence of discrimination, the McConnell Douglas burden-shifting analysis should be used rather than the Price Waterhouse analysis. Breeding, 164 F.3d at 1156 (citing McDonnell Douglas, 411 U.S. at 890, 93 S.Ct. at 1817; Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 n. 5 (8th Cir. 1996)); see also Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A disparate treatment analysis under this framework has three stages: (1) prima facie case; (2) nondiscriminatory reason(s); and (3) pretext. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94 (citing McDonnell Douglas, 411 U.S. at 802, 804, 92 S.Ct. at 1824, 1825); accord Adams v. Nolan, 962 F.2d 791, 794 (8th Cir 1991).
The Breeding court explained what is required to establish a prima facie case of discrimination:
The elements of a prima facie case are not inflexible and vary slightly with the specific facts of each case. Hindman v. Transkrit Corp., 145 F.3d 986, 990-91 (8th Cir. 1998). [The plaintiff] must demonstrate (1) that she is within the protected class; (2) that she was qualified to perform her job; (3) that she suffered an adverse employment action; and (4) that nonmembers of her class (persons under 40 in the ADEA context or of the opposite gender in the Title VII sex discrimination context) were not treated the same. See Kneibert v. Thomson Newspapers, Michigan Inc., 129 F.3d 444, 451 n. 4 (8th Cir. 1997) (defining the prima facie case in the ADEA context); Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th Cir. 1998) (defining the prima facie case in Title VII context).Breeding, 164 F.3d at 1156.
If the plaintiff fails to establish a prima facie case, the employer is entitled to summary judgement on the disparate treatment claim. Even if the plaintiff establishes a prima facie case of employment discrimination, the analysis does not end; rather, the burden "shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the adverse employment action." Breeding, 164 F.3d at 1156. "The employer need only articulate, not prove, its legitimate reason, because the employee continues to bear the burden of proving that he or she was subjected to unlawful discrimination." Bauer, 59 F. Supp.2d at 908 (citing Walton, 167 F.3d at 427). Indeed, "[t]his burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary's Honor Center, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). The onus remains on the plaintiff to show "`the employer's stated reason is pretextual and that the real reason for the employer's adverse employment action was unlawful age or sex discrimination.'" Bauer, 59 F. Supp.2d at 909 (quoting Breeding, 164 F.3d at 1157).
Thus, the court is left with the question of whether the plaintiff has "presented sufficient evidence of pretext to survive summary judgment." Id. (citing Simmons, 174 F.3d at 916.) "To overcome the employer's proffered legitimate reason, the employee must do more than assert that a jury might disbelieve the employer's proffered reason; the employee `must present affirmative evidence' that discrimination is the reason for the adverse employment action." Id. (citing Walton, 167 F.3d at 428). Furthermore, "[i]f the plaintiff's prima facie case is weak, the quantum of additional evidence necessary to establish pretext for summary judgment purposes increases." Bauer, 59 F. Supp.2d at 906 (citing Montgomery v. John Deere Co., 169 F.3d 556, 560 (8th Cir. 1999); Rothmeier, 85 F.3d at 1336-37). However, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 120 S.Ct. at 2109; accord Mercer v. City of Cedar Rapids, 104 F. Supp.2d 1130, 1162 (N.D.Iowa 2000) (holding Reeves "dispelled the notion that the plaintiff must always show `pretext-plus' to satisfy the final stage of the McDonnell Douglas analysis").
Applying these principles to the facts of the present case, the court first must determine whether Madsen has established a prima facie case of pregnancy discrimination. To do so, Madsen must demonstrate that she was within a protected class. At the time Madsen was discharged from employment, she was no longer pregnant, and therefore was not within the class protected by the PDA. However, she argues she was discriminated against while pregnant, and this discrimination led to her eventual termination. For purposes of its analysis, the court will assume, without deciding, that this would be enough to establish Madsen was within a protected class. Madsen next must show she was qualified to perform her job. She has satisfied this requirement. She also must show she was subjected to an adverse employment action. She also has satisfied this requirement. Thus, Madsen has established a prima facie case, although by the slimmest of margins.
Accordingly, the burden shifts to Randall's to articulate a legitimate, non-discriminatory reason for discharging Madsen. Randall's has done so, stating it discharged Madsen because she disrupted the ability of her fellow employees to work; she disregarded company policies and procedures in the areas of attendance, attitude, and work performance; and she tampered with the company's computers, which Randall's considered to be dishonest.
As noted previously, the fact that the computer tampering allegations were later called into question does not negate Randall's reliance on the facts as they appeared at the time.
The burden then returns to Madsen to show these proffered reason were not the true reasons for the termination of her employment, but were a pretext to hide pregnancy discrimination. Even after making such a showing, Madsen also has the ultimate burden of demonstrating that the adverse employment action was motivated by discriminatory reasons. As noted previously, in cases such as this, where the prima facie case is weak, a stronger showing of discriminatory motivation is required. Bauer, 59 F. Supp.2d at 906.
Madsen has offered no evidence to show that the reasons proffered by Randall's were a pretext to hide pregnancy discrimination. Not only has she completely failed to demonstrate that the proffered reasons were pretextual, she has failed to show any connection between her pregnancy and the termination of her employment. Therefore, the defendants are entitled to summary judgement on Madsen's discrimination claim based on indirect evidence.
IV. CONCLUSION
The court finds Madsen has not shown the existence of any genuine issue of material fact concerning whether the defendants discriminated against her in her employment because of her pregnancy. The evidence in this case "`could not support any reasonable inference' of discrimination." Breeding, 164 F.3d at 1156 (quoting Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 486-87 (8th Cir. 1998)). Based upon the foregoing analysis, the defendants' motion for summary judgment is granted.