Opinion
CASE NO. 8:03CV8
November 14, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Filing No. 10) filed by the Defendant, the Omaha Public Power District ("OPPD"). The Motion is supported by a brief (Filing No. 11) and an Index of Evidence (Filing No. 18). The Court also acknowledges its receipt of the Defendant's letter-brief dated September 19, 2003. The Plaintiff, Georgianna Brown, submitted a brief (Filing No. 19) and an Index of Evidence (Filing No. 20) in opposition to the Defendant's motion.
FACTUAL BACKGROUND
In 1978, Brown, an African-American female, began her employment at OPPD, an electric utility company and a political subdivision of the State of Nebraska. (Filing No 27.) Brown, who is still employed with OPPD, has always worked in the Engineering Department at OPPD. She began her employment in the position of Junior Clerk. In 1990, Brown was promoted to Stenographer. ( Id. 27.) Brown's employment and pay are subject to the Collective Bargaining Agreement in effect between OPPD and Local 1483, International Brotherhood of Electrical Workers. (Filing Nos. 18, Exs. 5 27.) Brown has progressed through all steps of the union contract as a Stenographer and is now at the top level of pay available to a Stenographer. (Filing No. 27.)
A pretrial conference has been held in this case, and the Order on final pretrial conference has been filed. (Filing No. 27.)
On June 25, 1997, Brown applied for the posted position of Division Secretary, Market Services. ( Id.) In applying for the position, Brown simply attached a job description for the stenographer position she then held and did not additionally explain what experience, knowledge, education or other qualifications supported her application for the position. (Filing No. 18, Ex. 15, Affidavit of Angela Jackson ("Jackson Aff."), ¶ 8.) Jackson routed Brown's application to the hiring manager for further consideration (Filing No. 20, Ex. 24 Deposition of Angela Jackson ("Jackson Depo."), 61:17-20), because Brown met at least the basic qualifications for the position. ( Id., 76:9-14.) Of twenty-four applicants, four were interviewed. (Jackson Aff., ¶ 10.) Brown was not granted an interview. (Jackson Depo., 38:7-16.) Tammy Briganti, a white female, was offered the position of Division Secretary, Market Services, based on her qualifications and experience. (Jackson Aff., ¶ 11; Filing No. 27; Filing No. 18, Ex. 4.) On or about July 15, 1997, Brown was advised that Briganti was hired for the position. (Jackson Aff., ¶ 12.)
Angela Jackson, an African-American female, is a Human Resource Service Representative. Her responsibilities include reviewing all job applications and involvement in the screening process for posted positions within her area of OPPD. (Jackson Aff., ¶ 4.)
On July 15, 1997, Brown applied for the posted position of Division Secretary, Customer Services, Administrative Division. (Filing No. 27.) Again, Brown simply attached a job description for the stenographer position she then held and did not explain what experience, knowledge, education or other qualifications she had relating to the open position. (Jackson Aff., ¶ 15.) Jackson did not forward Brown's application to the hiring manager for further consideration or an interview because Brown did not meet the minimum qualifications. (Jackson Depo., 71:1-24; Jackson Aff., ¶¶ 16-18.) Barbara Warner, a white female, was offered the position, based on her experience and skills obtained while she was Division Secretary in the Systems Planning Division. (Jackson Aff., ¶ 19; Filing No. 27; Filing No. 18, Ex. 19.) The position was a lateral transfer for Warner, while the position would have been a promotion for Brown. (Jackson Aff., ¶ 19.) Jackson's opinion was that Brown's application failed to meet the minimum qualifications, and therefore Jackson did not forward Brown's application for continued consideration. ( Id., ¶¶ 17-18.) On or about August 5, 1997, Brown was informed that Warner was hired for the position. ( Id., ¶ 20.)
According to Jackson, race was not a factor that related to Brown not being selected for either position. ( Id., ¶ 22.) Since July of 1997, Brown has not applied for any other posted employment positions at OPPD. (Filing No. 27.)
Mike Daniels, an OPPD supervisor, and Mike Vodicka, Manager of Administrative Services, were Brown's supervisors simultaneously for part of 1999 and were in a position to evaluate Brown's performance. ( Id.) Throughout her employment with OPPD, Brown's performance has been evaluated in writing. (Filing No. 18, Exs. 6-14.) OPPD's standard practice throughout the time of Brown's employment was to request employees to sign their written evaluations. (Filing No. 18, Ex. 2 (Affidavit of Sheri Garcia) ("Garcia Affidavit"), ¶ 6.) As of the date of her deposition, Brown had refused to sign all but three of her evaluations. (Filing No. 18, Ex. 1, Brown Deposition ("Brown Depo."), 207:10-25.) Three separate supervisors noted Brown's excessive absences and excessive use of the telephone for personal calls. ( Id., 112:9-14.) Brown acknowledged that each year the sick leave she used was well above that used by the rest of her entire department. (Brown Depo., 143:4-7.) Brown's evaluations reflect the following specific figures regarding sick leave or time "missed," from work: 440 hours in 1978 and 119.5 hours in 1979 (Filing No. 18, Ex. 6); 422 hours from July 1988 through March 1989 ( Id., Ex. 7); 160.6 hours from December 1989 through December 1990 ( Id., Ex. 8); 109.8 hours from December 1990 through March 1991 ( Id. 18, Ex. 8); 249.5 hours from May 1991 through April 1992, during which time Brown's department average was 40.8 hours per employee ( Id., Ex. 9); 119.5 hours from May 1993 through April 1994, during which time the department average was 54.7 hours ( Id., Ex. 10); 219.3 hours from June 1994 through May 1995, during which time the department average was 51.9 hours ( Id., Ex. 11); 219.3 hours from July 1995 through July 1996, during which time the department average was 51.4 hours ( Id., Ex. 12); 286.5 hours from July 1996 through July 1997, during which time the department average was 71.3 hours ( Id., Ex. 13); and 294 hours from August 1997 through January 1999 ( Id., Ex. 14).
Additionally, the following figures show the time Brown spent on personal telephone calls: 11.4 hours during fourteen business days between May 1991 through April 1992, when the employee average was far less ( Id., Ex. 9); an average of 15.1 hours per month between June 1994 and May 1995, when the average (including Brown's time) was 6.3 hours per month ( Id., Ex. 11); 10.6 hours per month from July 1995 through July 1996, during which time the department average was 6.3 hours per month ( Id., Ex. 12); 13.9 hours per month from July 1996 through July 1997, during which time the department average was 4.8 hours per month ( Id., Ex. 13); and 12.9 hours per month from August 1997 through January 1999 ( Id., Ex. 14).
Additionally, Brown's early performance appraisals included the following representative comments: "poor" general output; "[d]oes only what has to be done"; "created tension with co-workers"; and "shows little interest in her job." ( Id., Ex. 6.) Brown's later appraisals included some positive comments: "has shown some improvement" ( Id., Ex. 7); assisted with OPPD fund-raiser for the Girl Scouts ( Id., Ex. 8); continued education at Metro Community College ( Id., Ex. 10); and "more recent performance has been more acceptable." ( Id., Ex. 12.) Nevertheless, a reading of all of the performance appraisals demonstrates a very striking and continued pattern of very high absenteeism and significantly more hours spent on personal telephone calls than the average OPPD employee.
Brown has received every training opportunity that she has requested while employed at OPPD, and OPPD has paid for every training opportunity. (Filing No. 27.)
On March 30, 1999, Brown filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the NEOC. ( Id., Ex. 4.) Brown's charge alleges a "continuing" pattern of discrimination between 1991 and 1999. The narrative portion of her charge complains of alleged discriminatory acts in the following areas: promotion; pay; and coercive practices relating to performance appraisals. ( Id.)
In 1995, Brown filed an administrative charge addressing a perceived discriminatory failure-to-promote claim. The Nebraska Equal Opportunity Commission ("NEOC") found that no cause for discrimination existed. (Filing No. 18, Ex. 2, Affidavit of Sheri Garcia ("Garcia Aff."), ¶ 7.) Although this first charge is mentioned in the briefs and evidence, it is unrelated to the instant motion, given the parameters set by the pretrial order.
On October 18, 2000, Brown filed suit in this Court originally as part of a proposed class action lawsuit. Clayborne v. OPPD, No. 4:00CV540 (D. Neb. filed Oct. 18, 2000) (Filing No. 1). The proposed class alleged violations of rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and the Nebraska Fair Employment Practices Act ("NFEPA"), Neb. Rev. Stat. § 48-1101 et seq. (Reissue 1998). The Court denied the motion for class certification. Clayborne v. OPPD, 211 F.R.D. 573, 601 (D. Neb. 2002).
On January 10, 2003, Brown then filed this action against OPPD. Brown's first claim for relief alleges racial discrimination under Title VII and § 1981. Her second claim alleges racial discrimination in violation of the NFEPA. (Filing No. 1.) Brown requests damages including "backpay with prejudgment interest, past and future pecuniary and non-pecuniary loss, front pay, pain and suffering, [and] attorney's fees." (Filing No. 1.) Brown's claims are based on the same set of factual allegations. Brown complained of OPPD's failure to grant her an interview for or promote her to either division secretarial position as well as allegedly coercive tactics in connection with her performance appraisals , i.e., conducting the performance appraisals without sufficient notice and attempting to force Brown to sign performance appraisals with which she did not agree. Brown also claims she was a victim of discrimination in pay. (Filing No. 1.) The Complaint therefore appears to raise both failure to promote and hostile work environment claims. ( See Filing No. 1.) However, the pretrial order includes, as the only remaining legal issues, the allegations regarding failure to promote. (Filing No. 27.) Therefore, for purposes of the instant motion the Court will only address the failure-to-promote claims. Fed.R.Civ.P. 16(e) (providing that the pretrial order controls the "subsequent course of the action").
Brown's Complaint refers to at least twelve instances in which she was not promoted, allegedly due to racial discrimination. Throughout this action, however, Brown only raises specific factual allegations regarding the two division secretarial positions filled by Briganti and Warner.
In its Answer, OPPD denies many of Brown's allegations and asserts numerous affirmative defenses. (Filing No. 3.)
DISCUSSION
OPPD argues: 1) Brown's claims regarding promotions, training and compensation are barred by the applicable statute of limitations; 2) Brown has failed to establish a prima facie case of discrimination; and 3) even assuming that Brown established a prima facie case, OPPD's actions were based on legitimate, non-discriminatory reasons.
SUMMARY JUDGMENT STANDARD
Summary judgment is not appropriate unless "`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 a judgment as a matter of law.'" Fed.R.Civ.P. 56(c). A court should view all evidence in a light most favorable to the nonmoving party, also giving that party the benefit of all inferences which can be reasonably drawn. Dropinski v. Douglas County, 298 F.3d 704, 706 (8th Cir. 2002). "All the evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the non-moving party." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991). Furthermore, "[w]hen the evidence would support conflicting conclusions, summary judgment should be denied." Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir., 2000).
APPLICATION OF SUMMARY JUDGMENT STANDARD
Statute of Limitations Title VII and NFEPA
Under Title VII and NFEPA, Brown has 300 days from the date of the alleged occurrence of discrimination to file an administrative charge. 42 U.S.C. § 2000e-5(e)(1); Neb. Rev. Stat. §§ 48-1101 48-1118(2) (Reissue 1998). Brown alleges two acts of discrimination, i.e., failure to promote on July 9, 1997, and August 5, 1997. The alleged acts are discrete acts as opposed to an act that occurred cumulatively over a period of days or even years. Therefore, the alleged acts are not part of a "continuing" violation. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002); Tademe v. St. Cloud State Univ., 328 F.3d 982, 987-88 (8th Cir. 2003). Both events occurred more than 300 days prior to Brown's filing of her administrative charge with the NEOC and EEOC on March 30, 1999. Therefore, Brown's claims arising under Title VII and NFEPA are time-barred.
Brown, in arguing that her case involves a "continuing" violation, relies on this Court's previous Memorandum and Order in Bristol v. Valmont Indus., 2002 WL 802897 (D. Neb. Feb. 12, 2002) (unpublished), in which the Court applied the continuing violation theory. However, the theory can no longer be applied in the same manner in light of the Supreme Court's later decision in Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101 (2002). In Morgan, the Supreme Court clarified the difference between a discrete instance of alleged discrimination versus an ongoing practice of discrimination, or "continuing" violation. Id. at 118.
Despite this conclusion, the Court will analyze the issues together with the § 1981 issue under the assumption that the claims are timely. Title VII, NFEPA and § 1981 claims all involve the same familiar McDonnell Douglas burden-shifting analysis. Saulsberry v. St. Mary's Univ., 318 F.3d 862, 866 (8th Cir. 2003) (Title VII and § 1981); Malone v. Eaton Corp., 187 F.3d 960, 962 (8th Cir. 1999) (NFEPA).
Section 1981
The Eighth Circuit Court of Appeals has recognized that, because § 1981 lacks its own statute of limitations period, the appropriate statute of limitations in a § 1981 action is the period provided by state law for personal injury cases. Goodman v. Lukens Steel Co., 482 U.S. 656, 660-64 (1987). Nebraska law provides for a four-year statute of limitations period in personal injury cases. Neb. Rev. Stat. § 25-207 (Reissue 1995).
Brown filed her original federal court action on October 18, 2000, less than four years after her claims regarding the two Division Secretary positions arose on July 9, 1997, and August 5, 1997. Therefore, Brown's § 1981 claims are timely. Prima Facie Case
Summary judgment should be used sparingly in employment discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, a 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).
Because Brown has not presented direct evidence that race was a reason for her unsuccessful attempts at promotion, her case is analyzed under the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, Brown's prima facie case must show: 1) membership in a protected class; 2) she is qualified for the positions for which she applied, i.e., performs her job at a level that met OPPD's legitimate expectations; 3) she was not chosen for the positions; and 4) white persons with the same qualifications as Brown were hired for the positions. Kenney v. Swift Transp., Inc., 2003 WL 22359230, at *2 (8th Cir. Oct. 17, 2003) (citing McDonnell Douglas, 411 U.S. at 802).
Once the plaintiff makes a prima facie case, the burden shifts to the employer to articulate a legitimate business reason for its action. Id. at *3 (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the employer shows such a purpose, the burden shifts back to the plaintiff to meet the more difficult standard of showing that the employer's articulated reason for its action was merely a pretext for the allegedly unlawful discrimination. Id.; Landon, 72 F.3d at 625 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)).
In this case, OPPD argues that Brown: failed to meet OPPD's legitimate performance expectations; and offered no evidence showing either that she is more qualified than Briganti or Warner, i.e., that similarly situated employees who are not members of the protected group were treated differently.
In arguing that Brown failed to meet OPPD's legitimate performance expectations, OPPD relies primarily on Brown's record of excessive absences and excessive hours spent on personal telephone calls. In several instances, OPPD has compared Brown's absences and hours spent on personal calls with figures showing average figures for employees in Brown's department during the same or similar time periods. As part of the regular performance appraisal process, Brown was counseled with regard to the continued documented instances of absences and telephone abuse. Brown does not deny the figures relating to her absences, but she argues that she used earned leave time to which she was entitled. Similarly, she does not deny the figures relating to her personal telephone use.
Based on the evidence, Brown cannot establish the second prima facie element of his case-that she met OPPD's legitimate expectations and was qualified for her position. Brown's conclusory statements that she adequately performed her 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 v. Citizens Sec. Group, Inc., 116 F.3d 343, 346-47 (8th Cir. 1997) (stating that plaintiff's subjective statements that he met company standards were insufficient to overcome summary judgment); Greer v. Emerson Elec. Co., 185 F.3d 917, 920 (8th Cir. 1999) (stating that, in the context of alleged disability discrimination, under the McDonnell Douglas analysis, Greer was not a qualified employee due to excessive absences). Moreover, Brown is not familiar with Briganti's or Warner's qualifications (Brown Depo., 146:14-17; 147:3-6; 148:11-15), and thus Brown has not shown that Briganti or Warner are similarly situated. Therefore, Brown cannot prove a prima facie case of racial discrimination under Title VII, NFEPA or § 1981. Assuming, however, that Brown met her burden of proving a prima facie case, the Court finds that the evidence described above in detail strongly support's OPPD's articulation of a legitimate business reason for its actions that culminated in OPPD's decision not to promote Brown. Brown did not demonstrate that she was qualified for promotion, particularly in light of her consistent record of absenteeism and the excessive hours spent on personal telephone calls.
Brown has not submitted any evidence or argument showing pretext. For example, Brown's subjective opinion that her job performance was satisfactory and that her absences and time spent on personal telephone calls were within acceptable limits is irrelevant. A supervisor's, as opposed to Brown's, opinion regarding job performance controls. Brooks v. Ameren Ue, 345 F.3d 986, 988 (8th Cir. 2003). Brown has offered no evidence that she is more qualified than Briganti or Warner, and she has not identified any similarly situated employees who were treated differently. No evidence supports the theory of disparate treatment. See Burkett v. Glickman, 327 F.3d 658, 661 (8th Cir. 2003).
For the reasons discussed, Brown's claims of racial discrimination cannot survive summary judgment and must fail.
CONCLUSION
The Defendant's Motion for Summary Judgment (Filing No. 10) will be granted, and a separate judgment will be filed.