United States District Court, D. South Dakota
JEFFREY L. VIKEN, District Judge.
Plaintiff Farrell Cherry filed a multi-count amended complaint against the defendant, Siemens Healthcare Diagnostics, Inc., his former employer. (Docket 8). Mr. Cherry alleges unlawful discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 20003 et seq., including disparate treatment and disparate impact on the basis of race. Id . Defendant denies it discriminated against Mr. Cherry. (Docket 17). This matter is presently before the court on defendant's motion for summary judgment as to all counts. (Docket 31). Plaintiff resists defendant's motion in its entirety. (Docket 46). For the reasons stated in this order, defendant's motion for summary judgment is granted.
STANDARD OF REVIEW
Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248. Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id . However, the moving party is entitled to judgment as a matter of law if the nonmoving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "There can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In order to withstand a motion for summary judgment, the nonmoving party "must substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (citing Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Moody, 23 F.3d at 1412. The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing a genuine issue of material fact exists. Id. at 256; see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (mere allegations, unsupported by specific facts or evidence beyond a nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) ( en banc ) ("The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.") (internal quotation marks and citation omitted). The non-moving party's own conclusions, without supporting evidence, are insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 256; Thomas, 483 F.3d at 527; Torgerson, 643 F.3d at 1042.
UNDISPUTED MATERIAL FACTS
The following recitation consists of the material facts undisputed by the parties. These facts are developed from the amended complaint (Docket 8), defendant's answer (Docket 17), defendant's statement of undisputed material facts (Docket 33), and plaintiff's response to defendant's statement of undisputed material facts and additional statement of undisputed material facts (Docket 47). Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document.
Siemens Healthcare Diagnostics, Inc., ("Siemens") employed twenty or more employees for each working day during each of twenty or more calendar weeks in the calendar years 2012 and 2013, and is a business affecting commerce as defined under 29 U.S.C. § 630(h). (Docket 8 ¶ 4; 17 ¶ 4). Mr. Cherry is an African-American. (Docket 8 ¶ 6). He commenced his employment with Siemens in 1981 and was terminated on November 4, 2011. (Docket 17 ¶ 9). Mr. Cherry was employed by Siemens as a senior field service engineer and worked out of his home on Dark Canyon Road near Rapid City, South Dakota. Id . ¶ 8.
Siemens has a long-standing policy to provide its employees with a workplace free from unlawful discrimination and harassment, including discrimination on the basis of race. Siemens provides a complaint procedure through which employees are to report discriminatory or unlawful treatment without retaliation. (Docket 33 ¶ 1). Mr. Cherry was aware of Siemens' equal employment opportunity and harassment free workplace policies. Id . ¶ 2. He never reported or complained of race discrimination to Siemens during his employment, although he claims he did not do so because he feared losing his job and suffering retaliation. (Dockets 33 ¶ 3; 47 ¶ 3).
Siemens is highly regulated by the Food and Drug Administration ("FDA"). (Docket 33 ¶ 7). Proper documentation and recordkeeping, including service call closures, permanent device records, and compliance training are important to Siemens and the FDA. Id .; see also Docket 47 ¶ 7. Regional Service Manager Blaine Raymer became Mr. Cherry's supervisor in February 2008. (Docket 33 ¶ 20). At that time, Mr. Cherry was a senior engineer or Service Technician II, and his job duties included instrument repair, instrument documentation, installation, MODs,  preventative maintenance, customer satisfaction, and problem resolution. Id . ¶ 21.
Mr. Raymer's first performance review of Mr. Cherry was in 2009 for the calendar year 2008. (Dockets 33 ¶ 26; 47 ¶ 26). Mr. Raymer's 2009 performance review gave Mr. Cherry an overall rating of 3.21 or "Achieved." (Dockets 33 ¶ 27; 47 ¶ 27). In this review, Mr. Raymer provided positive feedback regarding Mr. Cherry's performance. Mr. Raymer complimented him on customer service, work ethic, call escalation, and noted Mr. Cherry was making "great strides" in completing "administrative duties in a timely manner." (Docket 33 ¶ 28). Mr. Cherry felt the majority of Mr. Raymer's comments in the 2009 review were good, but there were some comments with which he disagreed. (Docket 47 ¶ 29).
In the 2010 performance review for the calendar year 2009, Mr. Raymer gave Mr. Cherry an overall rating of 2 or "Partially Achieved." (Docket 33 ¶ 30). In this review, Mr. Raymer praised Mr. Cherry for having "extreme drive to satisfy customers" but also noted "negative feedback from peers regarding attention to detail and troubleshooting approach, " "consistent late and poor quality admin [sic] duties, " and "written warning to address admin [sic] deficiencies with minimal progress to improve performance." Id . ¶ 31.
In the 2011 performance review for the calendar year 2010, Mr. Raymer gave Mr. Cherry an overall rating of 2 or "Partially Achieved." Id . ¶ 32. In this review, Mr. Raymer complimented Mr. Cherry for "work[ing] well with sales and technical partners, " "provid[ing] highly responsive service in his territory, " and having "a willingness to do whatever it takes to fix a customer." Id . ¶ 33. Mr. Raymer noted Mr. Cherry's "administrative work is poor quality. Kronos time reporting is often inaccurate and much follow up is required. Expense reports come sporadically and have been rejected for inaccuracies." Id . Mr. Raymer also wrote:
Farrell [Cherry] needs much greater focus on details. Farrell needs to change his bad work habits. Farrell needs to take ownership for everything that he is responsible for as Farrell always has excuses for not completing tasks in the time allowed, such as AT&T doesn't work out here, my internet doesn't work at my house, my Prism is broken, my computer isn't working, I can't log on, I've taken the training eight times and it still says due. Farrell was paid 66 and a quarter hours for @helpdesk this past year which has not mitigated his IT challenges or excuses. Farrell occasionally completes Kronos time reporting correctly the first time. Farrell had a very stable territory to cover this year with zero incremental performance improvement. Farrell creates additional work for many. The call center makes additional contact frequently to get ETA information. Calls closed can be inaccurate as Farrell is always working in the past....
Farrell provides highly responsive service in his territory, mainly to one account at Rapid City Regional. Farrell had 456 hours of overtime, 40.5 percent of his TO, overtime, was due to weekend service as he is on call 50 percent of the time. The inability to maintain uptime at medium volume accounts continues the need for localized on call. Farrell has a willingness to do whatever it takes to fix a customer. In one instance he was willing to get parts locally as a StreamLab wiring harness was not available and the customer was down for several days. Unfortunately the problem was misdiagnosed and a fuse needed to be replaced.
(Docket 47 ¶¶ 240 & 302). Mr. Cherry received and signed off on his 2011 performance review. (Docket 33 ¶ 34). Mr. Cherry admits he received praise from Mr. Raymer and that he put Mr. Cherry up for an "attaboy" from Siemens when he performed well. Id . ¶ 24.
In October 2011, Siemens decided to conduct a reduction in force ("RIF") because of a lack of sales growth and for other business reasons, including a need to become more competitive in its pricing. Id . ¶ 59. The RIF was a company-wide initiative and impacted all business units. Id . ¶ 60. Siemens planned to reduce the employee count in the Sales, Service & Technical Group by approximately 113 out of a total decisional unit of approximately 940 employees. Id . That same month senior management instructed vice presidents, including Larry Camela then-Vice President of Service for the United States and Canada, that they would have to reduce employee count. Id . ¶ 61.
Shortly after Mr. Camela learned of the RIF, Service Director David Siebert, who was Mr. Raymer's direct supervisor and who reported to Mr. Camela, was informed of the RIF. Id . ¶ 63. Mr. Camela and Mr. Siebert were bound by a confidentiality agreement that prohibited sharing information regarding the RIF with employees below Director level during the decision-making process. Id . ¶ 64. At the time the RIF selections were made, Mr. Camela's territory was designed as the West, Northeast, Southeast, and Central Regions and employed 667 field service engineers. Id . ¶ 85. Mr. Siebert's territory, the Central Region, included South Dakota, Minnesota, Wisconsin, Illinois, Michigan and Indiana. Id . ¶ 156. Mr. Raymer's territory included Minnesota, North Dakota, South Dakota, Wisconsin, Wyoming, Nebraska and portions of Iowa. Id . ¶ 92.
Mr. Camela worked with Human Resources ("HR") to confirm the criteria to be applied in selecting employees for inclusion in the RIF. He was on a corporate team which determined the number of field service employees to be included in the RIF. Id. at ¶ 65. The primary criterion agreed upon for selection of employees to be included in the RIF was performance, and directors were instructed to consider employee performance over the course of the past three (3) years. Id. at ¶ 68. Only if a decision could not be made based on performance were other criteria such as seniority to be considered. Id. at ¶ 69. Overtime, customer evaluations, skill sets and salary information were not considered in RIF selection criteria. Id . ¶ 70. The identification of individual employees to be included in the RIF in Mr. Camela's territory was the responsibility of directors, including Mr. Siebert. Id . ¶ 66.
Mr. Siebert was informed he needed to select five employees from the units under his supervision to be included in the RIF. Id. at ¶ 67. Mr. Siebert testified he worked with HR Business Partner Michael Bolinger and Mr. Camela in selecting the employees in his territory who were to be included in the RIF. Id . ¶ 71. Mr. Siebert obtained permission to include in his RIF numbers two employees who had elected to retire. Id . ¶ 72. Mr. Siebert based his decision solely on performance, without considering seniority, and chose the three lowest performers in his region for inclusion in the RIF. Id . ¶ 73. The three employees chosen by Mr. Siebert for RIF termination were Mr. Cherry and two employees who were white. Id . ¶ 81. Mr. Camela and Mr. Siebert discussed the ...