Justia.com Opinion Summary:
Plaintiff, a white male, employed as a forklift operator, supported another employee's racial discrimination claim by testifying that he also routinely failed to sign a forklift checkout sheet and had never been disciplined. After an investigation, two operators were determined to be the individuals signing the checkout sheet on behalf of other employees and were issued disciplinary warnings; plaintiff was not disciplined. Plaintiff subsequently had a conflict with another employee that resulted in multiple complaints by fellow workers. The company terminated his employment for "violations of company policies, including ... creation of a hostile and intimidating work environment and engaging in unsafe work practices." The union filed a grievance but decided not to pursue it. The district court rejected his suit under 42 U.S.C. 1981 and alleging defamation on summary judgment. The Eighth Circuit affirmed, holding that plaintiff failed to prove pretext.Receive FREE Daily Opinion Summaries by Email
Civil case - civil rights. Assuming that plaintiff made a prima facie case that he had been terminated in retaliation for testifying in another employee's discrimination suit, the company established a legitimate, non- discriminatory basis for the termination - multiple violations of company policies, including harassment of other workers and unsafe work practices - which plaintiff failed to show was pretextual; comments plaintiff relied upon to establish defamation did not state a claim for defamation under Minnesota law.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Owens & Minor Distribution, Inc.;
Marc W. Johnson; Gregory Frank
Appeal from the United States
District Court for the
District of Minnesota.
Submitted: October 19, 2011
Filed: January 27, 2012
Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Richard Gacek appeals the decision of the district court1 granting summary
judgment to defendants Owens & Minor Distribution, Inc. (â€œOwens & Minorâ€) and
Marc Johnson on Gacekâ€™s 42 U.S.C. Â§ 1981 retaliation claim and to defendant
The Honorable Paul A. Magnuson, United States District Judge for the District
Gregory Mattson on Gacekâ€™s state-law defamation claim. For the reasons discussed
below, we affirm.
Gacek, a white male, was employed by Owens & Minor as a materials handler
(i.e., a forklift operator) at its warehouse in Mounds View, Minnesota. In September
2008, a recently terminated Owens & Minor materials handler, Mesfin Tewolde, filed
a racial discrimination suit against Owens & Minor. Owens & Minor advanced as a
legitimate reason for terminating Tewoldeâ€™s employment that Tewolde violated a
company policy by routinely failing to sign a forklift checkout sheet. Tewolde
countered that this reason was a pretext for discrimination because Owens & Minor
never disciplined other employees who failed to sign the sheet and that, in fact, a few
employees routinely signed improperly on behalf of other materials handlers. In a
deposition, Gacek supported Tewoldeâ€™s argument, testifying that he (Gacek) often
failed to sign the checkout sheet because he knew someone else would sign for him.
Other employees, including Sean Tyo and Rick Flannigan, gave similar deposition
testimony. Owens & Minor thereafter settled Tewoldeâ€™s suit.
Johnson, the general manager of the Mounds View warehouse, attended the
depositions. Ten days after the depositions, Johnson summoned Gacek, Tyo,
Flannigan, and another materials handler, Rodney Foner, into a meeting to investigate
the checkout-sheet violations discussed in the depositions. Johnson determined that
Tyo and Foner were the individuals signing the checkout sheet on behalf of other
employees and issued disciplinary warnings to them. Gacek was not disciplined.
Meanwhile, in November 2008, Owens & Minor management authorized
another employee, Bill Showers, to start and end his shifts one hour early for personal
reasons. Other employees complained to Gacek that Showers might be manipulating
the system so that he could leave early to go hunting.2 On November 4, Gacek
complained to Johnson about Showersâ€™s schedule, and Johnson caused Showers to be
summoned at the end of his shift for questioning. Showers left that meeting, went
home, and took his own life with a firearm.
Defendant Mattson, another employee at the warehouse, had been a friend of
Showers. It is undisputed that on November 6, Mattson told co-workers that Gacekâ€™s
complaint about Showersâ€™s work schedule â€œpushed Showers over the edge,â€ that it
was â€œthe straw that broke the camelâ€™s back,â€ and that Gacek â€œwas the reason for Billâ€™s
death.â€ Gacek learned of these comments on November 13 and filed a complaint
against Mattson with management. That same day, Gacek confronted Mattson in front
of a large gathering of employees. Gacek loudly stated, â€œGreg, what is this I hear you
have been telling people I killed Bill Showers?â€ Mattson responded, â€œIs that so hard
to believe?â€ Gacek concedes that he then swore loudly at Mattson, that another
employee spoke in Mattsonâ€™s defense, and that Gacek responded by repeatedly
bumping that employee while making statements such as â€œhit me, I dare you to hit me
The following day, management warned Gacek and Mattson to stay away from
each other. Gacek concedes, however, that later the same day he stopped his forklift
and stared at Mattson until a supervisor instructed Gacek to return to work. In January
2009, another employee witnessed Gacek drive his forklift into Mattsonâ€™s foot. In
March 2009, while Mattson was standing next to a large open space in the break room,
yet another employee witnessed Gacek walk through and â€œbumpâ€ Mattson. That day
Mattson decided to file a written complaint concerning Gacekâ€™s conduct.
At times during his employment with Owens & Minor, Gacek served as a
union steward. The parties dispute whether Gacek was acting as a union steward in
November 2008, but this is not a material fact.
Upon receiving Mattsonâ€™s complaint, Owens & Minorâ€™s corporate headquarters
in Virginia sent human resources specialist Neal Gifford to Mounds View to
investigate. Although Gifford initially intended to investigate solely the incidents
involving Gacek and Mattson, he found that warehouse employees were eager to
report other alleged wrongdoing by Gacek. Gifford concluded that Gacek had
committed a number of violations of company policy, including the following actions
that are not disputed by Gacek: (1) refusing to sign Owens & Minorâ€™s Warehouse
Rules because he disagreed with them; (2) writing â€œdonâ€™t agreeâ€ on his
acknowledgment form for Owens & Minorâ€™s materials handling equipment safety
policy; (3) striking out language on his acknowledgment form for Owens & Minorâ€™s
Code of Honor obligating him to comply with its policies, and writing â€œI disagree with
signing this pledgeâ€ under his signature; (4) yelling at a human resources employee
in April 2004 that she was not doing her job and that she did not know what she was
talking about, and again in May 2004 that she was not doing her job and that â€œthis is
bullshitâ€; (5) physically intimidating the employee who spoke in defense of Mattson
on November 13, 2008 and attempting to instigate a fight with him in front of other
employees; and (6) stopping his forklift and staring at Mattson on November 14,
2008â€”after being told to stay away from Mattson earlier that dayâ€”until a supervisor
ordered him to return to work. Gifford also concluded that Gacek had disrupted team
meetings, left security doors propped open on at least two occasions, and driven his
forklift dangerously close to Mattson to harass him.
Pursuant to Giffordâ€™s recommendation, Owens & Minor terminated Gacekâ€™s
employment on April 13, 2009 for â€œviolations of company policies, including but not
limited to creation of a hostile and intimidating work environment and engaging in
unsafe work practices.â€ Gacekâ€™s union initially filed a grievance but decided not to
pursue it. Gacek then filed this lawsuit for retaliation under 42 U.S.C. Â§ 1981 against
Owens & Minor and Johnson, and for defamation under Minnesota law against
Mattson. Gacek timely appeals the district courtâ€™s adverse grant of summary
judgment on both claims.
We review a grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party. Lake v. Yellow Transp., Inc., 596 F.3d
871, 873 (8th Cir. 2010). â€œSummary judgment is proper if the record shows â€˜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.â€™â€ Id. (quoting Fed. R. Civ. P. 56(c)). The
nonmoving party may not rest upon mere allegations or denials, but instead must set
forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986).
Retaliation under 42 U.S.C. Â§ 1981
Gacek contends that Owens & Minor and Johnson retaliated against him for
giving deposition testimony that aided Tewolde in Tewoldeâ€™s racial discrimination
suit. Under Â§ 1981, â€œ[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens.â€ A non-minority individual such as Gacek can bring a
claim under Â§ 1981 if he is discriminated or retaliated against for attempting to
â€œvindicate the rights of minorities protected byâ€ Â§ 1981, because allowing such
discrimination or retaliation to stand unchallenged â€œwould give impetus to the
perpetuation of racial restrictions.â€ See Sullivan v. Little Hunting Park, Inc., 396 U.S.
229, 237 (1969) (addressing a similar claim under 42 U.S.C. Â§ 1982).
Section 1981 claims are analyzed under the same framework as Title VII
claims. Lake, 596 F.3d at 873 n.2. Under that framework, if the plaintiff can establish
a prima facie retaliation case, the defendant must provide a legitimate,
nondiscriminatory reason for its decision. Green v. Franklin Natâ€™l Bank of
Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006). If the defendant does so, the burden
then shifts back to the plaintiff to show that the proffered reason was merely a pretext
for discrimination. Id.
The elements of a prima facie case of retaliation are that â€œ(1) [the plaintiff]
engaged in statutorily protected activity; (2) an adverse employment action was taken
against him or her; and (3) a causal connection exists between the two events.â€ Id.
(quoting Gilooly v. Mo. Depâ€™t of Health & Senior Servs., 421 F.3d 734, 739 (8th Cir.
2005)). As an initial matter, we note that while Gacekâ€™s deposition testimony on
behalf of Tewolde likely would qualify as â€œprotected activityâ€ under Title VII, see 42
U.S.C. Â§ 2000e-3(a) (prohibiting discrimination against an employee because he has
â€œtestified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapterâ€), this does not establish that Gacekâ€™s deposition
testimony qualifies as â€œprotected activityâ€ under Â§ 1981. See Welzel v. Bernstein, 436
F. Supp. 2d 110, 118 (D.D.C. 2006) (â€œAt a minimum, courts agree that an act of
retaliation for engaging in activity protected by Title VII â€˜does not give rise to a claim
for retaliation that is cognizable under Â§ 1981 unless that activity was also protected
by Â§ 1981.â€™â€ (quoting Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.
1998))). We need not decide the issue of whether Gacekâ€™s deposition testimony
qualifies as â€œprotected activityâ€ for Â§ 1981 purposes, however, because even assuming
for purposes of argument that Gacek presented a prima facie case of retaliation,
Gacekâ€™s failure to produce any evidence of pretext dooms his claim.3
Owens & Minorâ€™s proffered legitimate reason for Gacekâ€™s termination was
Giffordâ€™s conclusion that Gacek committed multiple â€œviolations of company policies,
Gacek also alleges that his termination was in retaliation for a series of
complaints he filed with the Occupational Health and Safety Administration
(â€œOSHAâ€) against Owens & Minor and for his participation in the union. Because
none of these additional activities bear even a remote connection to the rights of
minorities â€œto make and enforce contracts,â€ it is clear that they are not protected under
including but not limited to creation of a hostile and intimidating work environment
and engaging in unsafe work practices.â€ Gacek contends that this reason is pretextual
because other employees who violated the same policies were not terminated. See
Lake, 596 F.3d at 874 (â€œA plaintiff may show pretext, among other ways, by showing
that an employer . . . treated similarly-situated employees in a disparate manner.â€).
In particular, Gacek relies on evidence that one employee was suspended for a day,
rather than terminated from employment, for harassing other employees; two other
employees who drove forklifts in a dangerous manner were cautioned and given a
written warning, respectively, rather than terminated from employment; and another
employee who unleashed a profane tirade and attempted to initiate a fight received
only a final written warning. However, the comparators cited by Gacek involve
discipline for single incidents of harassment or single safety infractions, while
Gacekâ€™s employment was terminated for accumulating multiple violations of company
policy. â€œTo be probative evidence of pretext, the misconduct of more leniently
disciplined employees must be of comparable seriousnessâ€ to the plaintiffâ€™s conduct.
Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005) (quotation omitted),
abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th
Cir. 2011) (en banc). Because none of the proffered single incidents is of comparable
seriousness to the litany of violations accumulated by Gacek, the purported evidence
of disparate treatment fails to meet the â€œrigorousâ€ test at the pretext stage for
determining whether employees who were treated differently are similarly situated to
the plaintiff. See id.
Gacek presented no evidence from which a jury could conclude that Owens &
Minorâ€™s proffered legitimate reason for his termination was pretextual. Accordingly,
summary judgment on Gacekâ€™s Â§ 1981 retaliation claim was appropriate.
Gacek contends that Mattson defamed him by telling other employees that
Gacek caused Showersâ€™s death. Under Minnesota law, â€œ[o]nly statements that present
or imply the existence of fact that can be proven true or false are actionableâ€ in
defamation. Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn.
Ct. App. 2001). â€œThus, if it is plain that the speaker is expressing a â€˜subjective view,
an interpretation, a theory, conjecture, or surmise,â€™ rather than claiming to be in
possession of â€˜objectively verifiable facts,â€™ the statement is not actionable.â€ Id.
(quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).
It is undisputed that Mattson told other employees that Gacekâ€™s complaint
â€œpushed Showers over the edgeâ€ and was â€œthe straw that broke the camelâ€™s back,â€ and
that Gacek â€œwas the reason for Billâ€™s death.â€4 None of these statements, however,
express â€œobjectively verifiable factsâ€ about Showersâ€™s decision process. See
Schlieman, 637 N.W.2d at 308 (quoting Haynes, 8 F.3d at 1227). Rather, they express
Mattsonâ€™s â€œtheoryâ€ or â€œsurmiseâ€ as to Showersâ€™s motives in taking his own life. Id.
The Schlieman courtâ€™s reliance on Haynes indicates that Minnesota follows the
principle that â€œanyone is entitled to speculate on a personâ€™s motives from the known
facts of his behavior.â€ Haynes, 8 F.3d at 1227 (holding that an authorâ€™s statement that
the plaintiff decided to abandon one woman for another based on financial reasons
Gacek also claims that Mattson told other employees that Gacek â€œkilledâ€
Showers. However, there is no evidence Mattson publicized such a statement.
Instead, it was Gacek who stated â€œwhat is this I hear you have been telling people I
killed Bill Showers?â€ to a large audience, and Mattson merely responded, â€œIs that so
hard to believe?â€ Because it was Gacek himself, not Mattson, who publicized the
allegedly defamatory statement, it is not actionable in defamation. See Nw. Airlines,
Inc. v. Friday, 617 N.W.2d 590, 594 (Minn. Ct. App. 2000) (â€œThe â€˜publicationâ€™ of a
defamatory statement . . . require[s] . . . the act of the alleged defamer in making the
was not actionable in defamation because it did not express â€œobjectively verifiable
Because Gacekâ€™s defamation claim is not premised on statements that â€œpresent
or imply the existence of fact that can be proven true or false,â€ Schlieman, 637
N.W.2d at 308, summary judgment was appropriate on that claim as well.
For the foregoing reasons, we affirm the district courtâ€™s grant of summary
judgment to the defendants on each of Gacekâ€™s claims.