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Newell v. Speer

United States District Court, D. South Dakota, Central Division

October 24, 2017

JOHN N. NEWELL, Plaintiff,



         Plaintiff John Newell (Newell) sued his employer, the United States Army Corps of Engineers and John McHugh, [1] the Secretary of the Army (collectively the Corps) alleging claims of race discrimination, disparate treatment, retaliation, and hostile work environment under Title VII. Doc. 1.[2] Newell had filed a prior suit against the Corps with similar allegations based on different factual circumstances. Doc. 1, CIV 14-3005-RAL. This Court consolidated the two cases on Newell's motion. Doc. 8; Doc. 19, CTV 14-3005-RAL. Newell seeks compensatory damages and all damages allowed under Title VII, as well as costs and disbursements. Doc. 1 at 5; Doc. 1 at 9, CTV 14-3005-RAL. The Corps moved for summary judgment on all claims, Doc. 18, which Newell opposed, Doc. 26. This Court in a previous opinion and order granted the Corps' motion for summary judgment on all claims except the hostile work environment and constructive discharge claims, deferring consideration of those issues until Newell's pending Equal Employment Opportunity (EEO) claims had been resolved and a Final Agency Decision (FAD) from the Department of the Army had been issued. Doc. 33. The Department of the Army issued a FAD resolving Newell's outstanding EEO claims on January 17, 2017. Doc. 41-1. The Corps moved for summary judgment on the remaining claims, Doc. 34, and Newell opposed that motion. Doc. 46. For the reasons explained below, this Court grants the Corps' motion for summary judgment on all remaining claims.

         I. Facts Not Subject to Genuine Dispute[3]

         Under Local Rule 56.1, Defendants filed a Statement of Undisputed Material Facts. Doc. 20. Newell appropriately responded by filing Plaintiffs Statement of Undisputed Material Facts, Doc. 24, and Plaintiffs Statement of Disputed Material Facts, Doc. 25. After filing their most recent motion for summary judgment, Defendants filed a Supplemental Statement of Undisputed Material Facts, Doc. 36. Newell responded by filing Plaintiffs Second Responsive Statement of Material Facts, Doc. 45. This Court takes the facts in the light most favorable to Newell, as the non-moving party, and draws the facts primarily from the undisputed portion of Defendants' Statement of Undisputed Facts and Supplemental Statement of Undisputed Facts, Plaintiffs Statement of Undisputed Material Facts where supported by the record, Plaintiffs Statement of Disputed Material Facts where supported by the record, and Plaintiffs Second Responsive Statement of Material Facts where supported by the record. Docs. 20, 24, 25, 36, 45. The facts in tins section are not subject to genuine dispute. This Opinion and Order incorporates additional facts and some matters that Newell considers to be true, but which the Corps appears to contest, in discussing Newell's arguments.

         Newell is an African American male who has previously served in the United States Army. Doc. 25 at ¶¶ 2-3. Newell is the only African American employee of the Corps in the region where he . works; there is an admitted lack of diversity in employees at the Corps' Oahe Project. Doc. 24 at ¶¶ 35-36; Doc. 31 at ¶¶ 35-36. Prior to his initial hiring at the Corps, Newell had worked for the United States Post Office, where he was in a supervisory position for a period of time. Doc. 20 at ¶ 6; Doc. 25 at ¶ 6.

         In November 2005, Newell was hired as a Power Plant Electronics Mechanic Trainee HI at the Oahe Project in Pierre, South Dakota. Doc. 20 at ¶ 30; Doc. 25 at ¶ 30. The Corps runs the Oahe Project, which is one of six main stem dam projects in the upper Missouri River Basin that produce hydroelectric power. Doc. 20 at ¶ 27; Doc. 25 at ¶ 27. The Corps provides an on-the-job trainee program through classroom training and correspondence courses, and Newell also trained with Electronic Mechanics at two of the Corps' other dam projects, the Garrison and Big Bend Projects. Doc. 20 at ¶ 31; Doc. 25 at ¶ 31. Rick Battels (Battels) was assigned to mentor Newell in his on-the-job training program; when Bartels was promoted from Power Plant Mechanic to Power Plant Operations and Maintenance (O & M) Supervisor, Bartels became Newell's direct line supervisor and continued to mentor Newell. Doc. 20 at ¶ 32; Doc. 25 at ¶ 32. Newell's second line supervisor was John Battel (Battel), the Oahe Dam Project Manager. Doc. 20 at ¶ 33; Doc. 25 at ¶ 33. Upon Battel's retirement, Eric Stasch (Stasch), an Oahe Project engineer, was selected as Oahe Dam Project Manager. Doc. 20 at ¶ 33; Doc. 25 at ¶ 33. Jeffrey McCown (McCown) was hired as a Power Plant Mechanic in February 2006. Doc. 20 at ¶ 34; Doc. 25 at ¶ 34. Michael Magner (Magner) was hired as a Power Plant Electronics Mechanic and assigned to work with Newell in July 2006. Doc. 20 at ¶ 35; Doc. 25 at ¶ 35. In November 2006, Newell was promoted to Power Plant Electronics Mechanic Trainee IV. Doc. 25 at ¶ 36; Doc. 20 at ¶ 36.

         In April 2007, Newell reported to Bartels inappropriate lunchroom talk among his co-workers. Doc. 20 at ¶ 37; Doc. 25 at ¶ 37. Bartels then spoke to shop employees about stopping all inappropriate language in the workplace and showed a training video, produced by the EEO Commission (EEOC), to all shop employees about the Corps' anti-discrimination policies. Doc. 20 at ¶¶ 37-39; Doc. 25 at ¶¶ 37-39.

         In 2007, Newell and McCown applied for the Corps' Leadership Development Program, designed to develop leadership and management skills as distinct from other technical trainings; McCown was selected to participate in the program and successfully completed it. Doc. 24 at ¶¶ 37-38; Doc. 25 at ¶ 40; Doc. 31 at ¶¶ 37-38.

         On July 23, 2007, Newell reported to Bartels a second incident of offensive lunchroom talk concerning race. Doc. 20 at ¶ 41; Doc. 25 at ¶ 41. Bartels informed Bartel, and Battel verbally reprimanded two employees involved, Magner and McCown, and made a written record of the incident. Doc. 20 at ¶ 42; Doc. 25 at ¶ 42. On September 6, 2007, Newell filed a formal complaint of race discrimination regarding this issue with the EEOC. Doc. 21-8. In 2010, Newell and the Corps entered into a settlement agreement regarding his complaint, under which Newell received benefits and agreed to "waive his right to pursue . . . judicial action . . . concerning the matters raised in this complaint." Doc. 21-11 at 2. As part of the settlement, Newell also agreed to withdraw "any other EEO complaints of reprisal filed prior to the date of this agreement, " which was March 10, 2010. Doc. 21-11 at 2.

         In 2010, Bartels retired from the position of O & M Supervisor, and Newell applied for this position. Doc. 20 at ¶¶ 55-56; Doc. 25 at ¶¶ 55-56. Newell was not hired for this position, and did not file a complaint with the EEOC alleging racial discrimination or retaliation in the hiring process. Doc. 20 at ¶¶ 57-58; Doc. 25 at ¶¶ 57-58.

         In March 2011, an Assistant O & M position was advertised, and Newell applied for this position. Doc. 20 at ¶¶ 59-61; Doc. 25 at ¶¶ 59-61. Newell made the initial list of applicants, and was then part of the list of six applicants whose qualifications were rated on a defined matrix. Doc. 20 at ¶¶ 61-62; Doc. 25 at ¶¶ 61-62. The applicants for this position were rated by Stasch, the lead hiring official; Richard Spiger (Spiger), the O & M Supervisor at the Oahe Project; and Thomas Curran (Curran), the Operations Project Manager from the Ft. Randall Dam Project, an individual who had no knowledge of Newell, including no awareness of his race or prior EEO activity. Doc. 20 at ¶¶ 61-64; Doc. 25 at ¶¶ 61-64. Newell was ranked fifth of the six applicants by Stasch; fifth by Curran; and fourth by Spiger.[4]Doc. 20 at ¶¶ 62-64; Doc. 25 at ¶¶ 62-64. Because he was not one of the top three individuals ranked, he did not receive an interview and was not hired for the position. Doc. 20 at ¶¶ 65-67; Doc. 25 at ¶¶ 65-67. McCown instead was hired for the Assistant O & M position. Doc. 20 at ¶ 67; Doc. 25 at ¶ 67. Newell filed an EEO charge regarding this issue, alleging he was denied an interview because of race discrimination and reprisal for previous EEO activity. Doc. 20 at ¶ 68; Doc. 25 at ¶ 68.

         After a visit to the Oahe Project from an Industrial Hygienist, in October 2011, Newell's workspace was relocated into a space shared with Magner. Doc. 20 at ¶ 72; Doc. 25 at ¶ 72. Shortly after, Spiger directed Newell and Magner to report daily to McCown to discuss the day's work assignments in an effort to increase productivity at the Oahe Project. Doc. 20 at ¶ 73; Doc. 25 at ¶ 73. Newell at this point requested that he be trained to fill in for Spiger when Spiger was away from the Oahe Project. Doc. 20 at ¶ 74; Doc. 25 at ¶ 74. Spiger denied this request because McCown was already trained and responsible for filling in for Spiger when Spiger was away. Doc. 20 at ¶ 74; Doc. 25 at ¶ 74.

         For the period of February 2, 2011 to January 31, 2012, Newell received a performance rating of 3 (Successful), which did not entitle him to receive a cash bonus performance award. Doc. 20 at ¶ 92; Doc. 25 at ¶ 92. Newell filed a claim with the EEOC alleging racial discrimination for this performance rating. Doc. 20 at ¶ 93; Doc. 25 at ¶ 93. In 2014, the Army issued an FAD finding that there was no evidence of discriminatory animus in the performance rating. Doc. 20 at ¶¶ 100-01; Doc. 25 at ¶¶ 100-01.

         On April 18, 2013, Stasch issued Newell a formal Letter of Reprimand for discussing the performance ratings of employees obtained through Newell's participating in prior EEO activity. Doc. 20 at ¶ 102; Doc. 25 at ¶ 102; Doc. 21-29 at 4-5. After a claim to the EEOC, the Administrative Law Judge (ALT) found that this reprimand letter (as opposed to a verbal reprimand) constituted retaliatory discipline for Newell's prior EEO activity and required the reprimand letter be removed from Newell's file, compensatory damages be paid to Newell, and training be provided at the Oahe Project; the Army concurred in this finding with an FAD. Doc. 20 at ¶¶ 105-07; Doc. 25 at ¶¶ 105-07. Stasch did as instructed and gave Newell a verbal reprimand for the conduct rather than the formal Letter of Reprimand. Doc. 27-4 at 91. Also, in 2013, Newell was disciplined for being absent without leave (AWOL) from his position because he did not adhere to the Corps' written policy on leave time request. Doc. 20 at ¶ 90; Doc. 25 at ¶ 90. Newell did not object to this discipline, nor did he file an EEO claim regarding the instance. Doc. 20 at ¶ 116; Doc. 25 at ¶ 116.

         Newell made another complaint to the EEOC after McCown made comments during a weekly. safety meeting that a Comprehensive Facility Review Team would be arriving and used language involving burning crucifixes and hangings[5] to indicate the severity and thoroughness of the group's review. Doc. 20 at ¶¶ 108-111; Doc. 25 at ¶¶ 108-111. The complaint was dismissed for failure to state a claim, because the statement did not constitute unlawful employment practice and Newell did not show any personal harm or loss of employment privileges or conditions because of the statement. Doc. 20 at ¶ 112; Doc. 21-35 (text of FAD dismissing complaint); Doc. 25 at ¶ 112.

         In the Summer of 2013, a memo was circulated indicating that only one electronics mechanic position would be needed, but to avoid a Reduction in Force (RIF), one of the electronics mechanics would be assigned on a two-month shift to either the electric or mechanics shop. Doc. 24 at ¶ 117; Doc. 25 at ¶ 142; Doc. 28-1; Doc. 31 at ¶ 117. At this point, for various reasons, Bartels and Spiger told Magner not to share all of his information about the electronics mechanic position with Newell. Doc. 24 at ¶¶ 118-27; Doc. 31 at ¶¶ 118-27.

         In June 2014, Newell was issued a Notice of Proposed Suspension for failure to properly inspect plant safety equipment and for discrepancies in recording time in the Oahe Project's work order system. Doc. 20 at ¶ 127; Doc. 24 at ¶ 100; Doc. 25 at ¶ 127. Newell filed a claim with the EEOC that this proposed suspension constituted racial discrimination, reprisal, and a hostile work environment. Doc. 20 at ¶ 128; Doc. 25 at ¶ 128. Stasch ultimately issued Newell a seven-day suspension for this conduct. Doc. 20 at ¶ 130; Doc. 25 at ¶ 130. Newell filed another EEO claim regarding this final suspension, which' was consolidated with the first. Doc. 20 at ¶¶ 131-32; Doc. 25 at ¶¶ 131-32. The Army issued a FAD upholding Newell's suspension on January 17, 2017. Doc. 36 at ¶¶ 145, 148; Doc. 45 at ¶¶ 145, i 148; Doc. 41-1 (text of FAD upholding suspension).

         Colonel Cross, the commander of the Omaha District, flew to Pierre in the Summer of 2014 to meet with Stasch and Spiger about Newell's EEO complaints. Doc. 24 at ¶ 95. Newell was not able to meet with Colonel Cross during that visit. Doc. 24 at ¶ 96.

         In August 2014, Newell requested to be trained for an Operator position and received approval for that training. Doc. 36 at ¶ 151; Doc. 45 at ¶ 151. Newell completed this training and was promoted to a full-time Power Plant Shift Operator position on October 2, 2016. Doc. 36 at ¶¶ 154-155; Doc. 45 at ¶¶ 154-155. Power Plant Shift Operators are the highest paid nonsupervisory position at the Oahe Project. Doc. 36 at ¶ 153; Doc. 45 at ¶ 153.

         Newell believes that he is treated differently than other Corps employees of the Oahe Project and that he is subject to what he calls the "Newell Rules." Doc. 24 at ¶ 93. Magner indeed believes that the Corps would like to get rid of Newell, not because of Newell's race, but because of his repeated EEO filings. Doc. 24 at ¶ 140. Stasch reports that Spiger has expressed frustration with the Corps paying Newell so that Newell can sue the Corps, although Spiger denies making such a statement. Doc. 24 at ¶ 162. The January 2017 FAD found this statement did not constitute discriminatory harassment. Doc. 36 at ¶ 150; Doc. 45 at ¶ 150.

         II. Summary Judgment Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled, to judgment as a matter of law." On summary judgment, the evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska, 612 F.3d 676, 679 (8th Cir. 2010) (quoting Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006)). There is a genuine issue of material fact if a "reasonable jury [could] return a verdict, for either party" on a-particular issue. Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th Cir. 2011). A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is generally disputed. Fed.R.Civ.P. 56(c)(1); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment." Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007); see also Reasonover v. St. Louis Cty, MQ,, 447 F.3d 569, 578 (8th Cir. 2006) ("Evidence, not contentions, avoids summary judgment.") (internal quotations and citation omitted). Summary judgment is not "a disfavored procedural shortcut, but rather ... an integral part of the Federal rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). Cases alleging discrimination are subject to the same summary judgment standard as any other case. Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc).

         III. Race ...

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