United States District Court, D. South Dakota, Central Division
JOHN N. NEWELL, Plaintiff,
ROBERT M. SPEER, ACTING SECRETARY OF THE ARMY; AND THE UNITED STATES ARMY CORPS OF ENGINEERS, AGENCY, Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
John Newell (Newell) sued his employer, the United States
Army Corps of Engineers and John McHugh,  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. 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.
Facts Not Subject to Genuine Dispute
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.
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.
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.
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.
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.
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.
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.
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.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.
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.
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 ¶¶
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.
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 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.
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.
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).
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.
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.
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
Summary Judgment Standard
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