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Givens v. Wilson Trailer Co.

United States District Court, N.D. Iowa, Western Division

September 30, 2014



DONALD E. O'BRIEN, Senior District Judge.


Currently before this Court is the Defendants' motion for summary judgment filed by Defendant Wilson Trailer Company, Defendant Doug Maskell, Defendant John Kreber and Defendant R.J. Stowe. Docket No. 15. Because the Defendants filed a single brief, the Court will refer to the Defendants, collectively, as Wilson Trailer, unless otherwise specified.

The parties appeared for a hearing on September 18, 2014. After hearing the parties' arguments, the Court took the issues under advisement and now enters the following.


In his Complaint, the Plaintiff, Mr. Givens, alleges that the Defendants committed employment discrimination. Defendant Wilson Trailer Company is an Iowa corporation located in Sioux City, Iowa. Wilson Trailer employed Mr. Givens as a welder from 2008, until they terminated his employment on January 28, 2011. Wilson Trailer employs Defendant Maskell as a supervisor, Defendant Kreber as a human resources director, and Defendant Stowe as a supervisor.

The general allegation is that Mr. Givens experienced racial discrimination (he is African American, and the individual Defendants are Caucasian), and that the Defendants retaliated against him for reporting the alleged discrimination. The Defendants contend that they fired Mr. Givens in accordance with the applicable employee handbook after he received his third written warning.

In support of the Defendants' allegation that Mr. Givens was fired in accordance with their policy, the following seems undisputed. The Defendants had in place a handbook and other employment policies that stated employees could only be discharged for just cause. In practice, this meant employees could receive two written warnings in a 12 month period before being fired, and they would only be fired after the Defendants issued a third written warning within 12 months. Wilson Trailer employees are represented by a trade union and that union oversaw implementation of the policy described above.

It is undisputed that Mr. Givens received three written warnings in the 12 month period leading to his discharge. However, Mr. Givens argues that the final two warnings were pretextual. Mr. Givens admits that he received his first (relevant) written warning letter on February 26, 2010, for violating company policy on violence when he threatened another employee. There is dispute between the parties regarding the nature or the legitimacy of first warning.

Mr. Givens received his second relevant written warning letter on September 28, 2010, for taking a fourth early-out within a six-month period, in contravention of Wilson Trailer's absence policy that allows three early-outs in a six-month period. (Essentially, Mr. Givens left work early when he was not supposed to.) It is undisputed that Mr. Givens received this warning and that the warning was neither overturned nor expunged. However, Mr. Givens contends that he had asked his supervisor, Mr. Ross, if he could leave early, and Mr. Ross gave permission. Defendants conceded that Mr. Givens did ask permission to leave early. Mr. Ross subsequently discovered that Mr. Givens was not eligible to leave early and issued the second warning letter. The Defendants admit that the facts giving rise to the second warning letter involved a mistake on the part of Mr. Ross because he should not have told Mr. Givens that he could leave early. However, the Defendants contend that Mr. Givens could have taken action to expunge the second warning letter, including turning the matter over to the union, but he never did. As will be discussed in more detail shortly, Mr. Givens alleges that the second warning was retaliatory because Mr. Ross had previously been disciplined for a racial incident reported to Wilson Trailer by Mr. Givens.

Mr. Givens received his third relevant written warning letter on January 24, 2011, for wasting company time by putting his food in a microwave oven prior to the beginning of his break time. Mr. Givens admits the essential facts of the third warning; he went to the tool crib' shortly before the lunch break was set to begin and began warming his lunch. However, Mr. Givens contends that going to the tool crib' a little early was a routine practice among employees and that the only reason the Defendants issued him a warning for that incident is that he had recently filed a complaint about co-workers using racially derived profanity. Defendants contend that employees were routinely disciplined and warned about going to lunch early.

Following the third warning, Mr. Givens was given a three day suspension. When the warning was neither overturned nor challenge, the Defendants terminated Mr. Givens' employment.

Prior to his discharge, Mr. Givens had accused several employees of Wilson Trailer of committing racial discrimination and using racially insensitive language. The first incident occurred in 2008. Mr. Givens and another African American employee were working the night shift when they discovered a mock up of a noose hanging from a catwalk. It was eventually determined that Mr. Ross, mentioned above, tied the noose. (Mr. Ross claimed at the time and, seemingly, still claims, that the noose was tied for legitimate work purposes.) Wilson Trailer initially issued Mr. Ross a warning letter for leaving the noose hanging, but ultimately suspended him for two days. Mr. Givens filed a complaint arising out of the noose incident with the Iowa Civil Rights Commission on August 6, 2008, which was resolved by the Sioux City Human Rights Commission ("SCHRC"). The SCHRC found that there was no reason to doubt Mr. Ross' explanation that his tying the knot was not racially motivated. Additionally, the SCHRC found that the "noose" did not constitute sever or pervasive harassment. Mr. Givens did not appeal that conclusion or pursue a right to sue letter.

There were two incidents where other Wilson Trailer employees used the n word, ' and the facts of those incidents are largely undisputed. In the first, it was alleged that an employee, Mr. Peterson, referred to Mr. Givens by that term. Defendant Kreber called a meeting and discussed the situation with the parties. In the second incident, another employee, Mr. Comstock, allegedly used the same word to refer to Mr. Givens. Defendants found that Mr. Comstock did use that word and terminated his employment. The incident with Mr. Comstock occurred only a few days before Wilson Trailer terminated Mr. Givens; and Mr. Givens alleges that his reporting of Mr. Comstock, and his insistence that Mr. Comstock be fired, upset the Defendants and ultimately led to their decision to terminate him. Additionally, it seems undisputed that there were racially offensive things written in the bathroom(s) at Wilson Trailer. However, the specific facts about those writings are not contained in the record.

Others relevant facts will be discussed below.


Summary judgment is appropriate only if the record shows "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P., Rule 56(c). A fact is material if it is necessary "to establish the existence of an element essential to [a] party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). There is a genuine issue as to a material fact if, based on the record before the court, a "rational trier of fact" could find for the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

When considering a motion for summary judgment, a "court must view the evidence in the light most favorable to the nonmoving party...." Hutson v. McDonnell Douglas Corp. , 63 F.3d 771 (8th Cir. 1995). This requires a court to draw any reasonable inference from the underlying facts in favor of the nonmoving party and to refrain from weighing the evidence, making credibility determinations, or attempting to discern the truth of any factual issue in a manner which favors the moving party unless there is no reasonable alternative. See Matsushita , 475 U.S. at 587; and Morris v. City of Chillicothe , 512 F.3d 1013, 1018 (8th Cir. 2008) (citing Thomas v. Corwin , 483 F.3d 516, 526-27 (8th Cir. 2007)).

Procedurally, the movant bears the initial burden "of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel v. Norman , 953 F.2d 394, 395 (8th Cir. 1992) (citing Celotex , 477 U.S. at 323). Once the movant has carried his burden, the non-moving party is required "to go beyond the pleadings" and through "affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Celotex , 477 U.S. at 323 (citing Fed.R.Civ.P. 56(e)).

In times past, courts suggested that the standard for summary judgment in employment discrimination cases required a higher showing than in other' summary judgment cases. However, the 8th Circuit rejected that view, stating:

summary judgment is not disfavored and is designed for every action, ' panel statements to the contrary are unauthorized and should not be followed. There is no discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial.

Torgerson v. City of Rochester , 643 F.3d 1031, 1043 (8th Cir. 2011). However, that is not to say that discrimination cases do not present their own unique challenges. As Judge Bennett of this Court recently observed:

experience teaches that thoughtful deliberation of summary judgment in employment discrimination cases is grounded in the consideration of each case through a lens filtered by the following observations. Employment discrimination and retaliation, except in the rarest cases, are difficult to prove. They are perhaps more difficult to prove today-fifty years after the passage of the EPA, more than forty years after the passage of Title VII and the ADEA, more than twenty years after the passage of the ADA, and nearly two decades after the passage of the FMLA-than during the earlier evolution of these anti-discrimination and anti-retaliation statutes. Today's employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it. See, e.g., Riordan v. Kempiners , 831 F.2d 690, 697-98 (7th Cir. 1987). Indeed, the Fifth Circuit Court of Appeals recognized more than thirty-five years ago, that "[a]s patently discriminatory practices become outlawed, those employers bent on pursuing a general policy declared illegal by Congressional mandate will undoubtedly devise more sophisticated methods to perpetuate discrimination among employees." Rogers v. EEOC , 454 F.2d 234, 239 (5th Cir. 1971) (later relied on by the Supreme Court in Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 65-67 (1986), as one of the principal authorities supporting recognition of a cause of action for hostile environment sexual harassment under Title VII). My experience suggests the truth of that observation. Because adverse employment actions almost always involve a high degree of discretion, and most plaintiffs in employment discrimination and retaliation cases are at will, it is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge. This is especially true, because the very best workers are seldom employment discrimination and retaliation plaintiffs due to sheer economics: Because the economic costs to the employer for discrimination or retaliation are proportional to the caliber of the employee, discrimination or retaliation against the best employees is the least cost effective. See, e.g., id. Rather, discrimination and retaliation plaintiffs tend to be those average or below-average workers-equally protected by Title VII, the ADA, the ADEA, the EPA, or the FMLA-for whom plausible rationales for adverse employment actions are readily fabricated by employers with even a meager imagination. See, e.g., id. On the other hand, it is also relatively easy for disgruntled former employees to claim a protected basis under federal and state anti-discrimination laws as a reason for their discharge when in fact they played no part. This is true even when the former employee and/or their counsel believe they did. This is what makes deciding these issues on a paper record daunting.

Pick v. City of Remsen, 2014 WL 4258738, 11-12 (N.D. Iowa 2014).


Defendants' Motion for Summary Judgment raises several issues. First, the Defendants argue that Mr. Givens' state law claims are time barred. Second, Defendants argue that individual supervisors cannot be held liable under Title VII. Finally, Defendants argue that Mr. Givens has failed to set out racial discrimination/hostile work ...

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