Greenlee v. J.B. Hunt Transport Servs.
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Cite as 2009 Ark. 506
SUPREME COURT OF ARKANSAS
No.
BILLIE JO GREENLEE,
07-1254
Opinion Delivered
APPELLANT,
VS.
J.B. HUNT TRANSPORT SERVICES,
INC. &
J.B. HUNT TRANSPORT, INC.,
APPELLEES,
October 22, 2009
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT,
NO. CIV-03-835-1,
HON. TOMMY J. KEITH, JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Billie Jo Greenlee appeals the order of the Benton County Circuit Court
granting a motion for summary judgment in favor of appellees J.B. Hunt Transport Services,
Inc. and J.B. Hunt Transport, Inc. (hereinafter collectively referred to as J.B. Hunt).
Greenlee’s sole point on appeal is that the circuit court erred in granting J.B. Hunt’s motion.
We find no error and affirm.
The record reveals the following facts. Greenlee was hired as a maintenance assistant
in the warranty department for J.B. Hunt at its home office on September 16, 2002. In
January of 2003, Greenlee applied for thirty days of personal leave because of complications
due to her pregnancy. J.B. Hunt granted the leave on an intermittent basis, which permitted
Greenlee to take up to thirty days off in total, as needed, to deal with the pregnancy
Cite as 2009 Ark. 506
complications. On March 7, 2003, she applied for additional leave under the Preliminary
Family Medical Leave Act (pre-FMLA), requesting time off from work until May 5, 2007,
as her doctor had prescribed her with bed rest until that date. It was determined by the
group-benefits department that Greenlee did not qualify for J.B. Hunt’s pre-FMLA leave.
She was then terminated because she was unable to report for work and was not eligible for
pre-FMLA leave.
On June 24, 2003, Greenlee filed a complaint against J.B. Hunt, alleging that her
termination was gender discrimination under the Arkansas Civil Rights Act of 1993, currently
codified at Ark. Code Ann. §§ 16-123-101 to -108 (Repl. 2006). J.B. Hunt filed a motion
for summary judgment on March 28, 2006, asserting that the undisputed facts presented to
the court established that J.B. Hunt did not terminate Greenlee because of her pregnancy, but
because she had repeated problems with attendance and was not qualified for additional leave
when she notified J.B. Hunt that she would not be able to report to work from March 7,
2003, until May 5, 2003. The circuit court granted the motion on July 23, 2007. It is from
that order that Greenlee now appeals.
Greenlee claims that the circuit court erred in granting summary judgment because the
Arkansas Civil Rights Act protected her from being discharged when she was experiencing
complications due to pregnancy, she proved her pregnancy was a motivating factor in her
termination, she proved that a bias existed because she was pregnant, and J.B. Hunt’s failure
to allow for sick leave when she was experiencing complications from pregnancy was
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discriminatory. J.B. Hunt avers that the circuit court did not err by granting its summaryjudgment motion because Greenlee failed to offer proof of discrimination.
Summary judgment may only be granted when there are no genuine issues of material
fact to be litigated. See K.C. Props. of Nw. Arkansas Inc. v. Lowell Inv. Partners, 373 Ark. 14,
280 S.W.3d 1 (2008). The moving party is then entitled to judgment as a matter of law. See
id. Once the moving party has established a prima facie entitlement to summary judgment,
the opposing party must meet proof with proof and demonstrate the existence of a material
issue of fact. See id. On appellate review, this court determines if summary judgment was
appropriate based on whether the evidentiary items presented by the moving party in support
of the motion leave a material fact unanswered. See id. This court views the evidence in a
light most favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party. See id. Our review focuses not only on the pleadings,
but also on the affidavits and other documents filed by the parties. See id. In the context of
employment discrimination cases, this court has noted that an affidavit must contain “[m]ore
than mere assertions or possibilities . . . to defeat a motion for summary judgment.” Mack v.
Sutter, 366 Ark. 1, 6, 233 S.W.3d 140, 145 (2006).
The Arkansas Civil Rights Act provides citizens of this state legal redress for civil rights
violations of state constitutional or statutory provisions, hate offenses, and discrimination
offenses. See Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The
Act also seeks to prevent retaliatory conduct against those seeking its protection. See id. The
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Act unequivocally grants to qualified persons the right to be free from employment
discrimination “because of gender.” Ark. Code Ann. § 16-123-107(a)(1). The definition
section of the Act also makes clear that “because of gender” includes “on account of
pregnancy, childbirth, or related medical conditions.” Ark. Code Ann. § 16-123-102(1).
Therefore, should Greenlee prove that she was terminated on account of “pregnancy,
childbirth, or related medical conditions,” she would be entitled to relief under the Act.
To date, this court has only addressed one pregnancy-gender discrimination case. See
Flentje, supra. In Flentje, we looked to federal law for guidance and noted that, under federal
law, a court can review a gender-discrimination case under two alternative theories – a
“mixed-motive” analysis as used in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or a
shifting-burdens test as applied in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Flentje, 340 Ark. at 571, 11 S.W.3d at 537 (citing Stacks v. Sw. Bell Yellow Pages, Inc., 996 F.2d
200 (8th Cir. 1993)).
Under the standard set forth in Price Waterhouse, a plaintiff must first produce direct
evidence that an illegitimate criterion, such as gender, played a motivating part in the
employment decision. See Cronquist v. City of Minneapolis, 237 F.3d 920 (8th Cir. 2001).
Once the plaintiff establishes such direct evidence, the burden shifts to the employer to
demonstrate by a preponderance of the evidence that the employer would have reached the
same employment decision absent any discrimination. See id. If the employer fails to meet
this standard, the employee prevails. See id.
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Under the three-stage, burden-shifting standard set forth in McDonnell Douglas, the
plaintiff bears the initial burden of establishing a prima facie case of discrimination. See
Cronquist, supra. Once a prima facie case is established, a rebuttable presumption shifts the
burden to the employer to articulate a legitimate, nondiscriminatory reason for discharging
the employee. See id. If the employer articulates such a reason, the presumption disappears
and the plaintiff bears the burden of proving that the employer’s proffered reason is merely
a pretext for discrimination. See id.
In Flentje, this court applied the McDonnell Douglas test after concluding that the
“mixed-motive” analysis of Price Waterhouse was inapposite because the appellant had
proffered no direct evidence of discriminatory intent. In the instant case, we also apply the
McDonnell Douglas test. In her brief, Greenlee argues that there was no doubt that J.B. Hunt
considered an illegitimate criterion because there was testimony that the sole reason for her
termination was the time from work she would be required to miss because of pregnancy
complications. However, Greenlee proffered no direct evidence of discriminatory intent on
the part of J.B. Hunt. The evidence presented reveals that Greenlee did not qualify for any
leave in addition to the time off she had already been given by J.B. Hunt. The record further
reveals that the reason for her termination was her ineligibility for additional leave, not
because the time she would need off was a result of pregnancy complications. Stated another
way, Greenlee was not denied approval for additional leave because she was pregnant; rather,
she was denied additional leave because she had not worked at the company for the required
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six months in order to qualify for leave under pre-FMLA or FMLA.
The Eighth Circuit has clarified the Price Waterhouse standard by holding that direct
evidence is “evidence of conduct or statements by persons involved in the decision making
process that may be viewed as directly reflecting the alleged discriminatory attitude . . .
sufficient to permit the factfinder to infer that that attitude was more likely than not a
motivating factor in the employer’s decision.” Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,
449 (8th Cir. 1993) (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.
1992)). The allegations made by Greenlee of discriminatory discipline and termination
depend on a very small amount of circumstantial evidence1 and do not directly reflect a
discriminatory attitude of any of J.B. Hunt’s decisionmakers.
Because the Price Waterhouse analysis does not apply, we use the McDonnell Douglas test.
Under McDonnell Douglas, Greenlee must first establish the four elements of a prima facie case
of gender discrimination: (1) that she is within the protected class; (2) that she met applicable
job qualifications; (3) that her employment was terminated; and (4) that there is some
“additional showing” that pregnancy was a factor in her termination. Flentje, 340 Ark. at 571,
11 S.W.3d at 538 (citing Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64 (8th Cir. 1997)).
We question whether Greenlee even established a prima facie case of gender discrimination
against J.B. Hunt under the circumstances here. It is undisputed that she would not be able
The evidence presented by Greenlee is discussed more thoroughly under our
analysis of the McDonnell Douglas test.
1
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to report for work for two months. Greenlee had been employed with J.B. Hunt less than
six months and did not qualify for any additional leave. Therefore, it is debatable whether
or not Greenlee actually met the applicable job qualifications because she was given a doctor’s
order not to work. Furthermore, the only “additional showing” that her pregnancy was a
factor in Greenlee’s termination was her own testimony that she was treated differently after
she became pregnant. However, the appellant in Flentje also failed to produce evidence
beyond her own testimony of maltreatment, and this court held that she had shown a prima
facie case to pass the first prong under McDonnell Douglas. See Flentje, supra.
Assuming Greenlee met her burden and established a prima face case of gender
discrimination, the burden then shifted to J.B. Hunt under the second prong of the McDonnell
Douglas test. J.B. Hunt met its burden by articulating a legitimate, nondiscriminatory reason
for Greenlee’s discharge. J.B. Hunt produced evidence that she had previously had problems
with absenteeism and tardiness. More importantly, the explanation given multiple times by
J.B. Hunt and its officers was that Greenlee was terminated because she would not be able to
report to work for two months, and the benefits department determined that she had not
been with the company long enough to qualify for additional leave.
Attached to its motion for summary judgment, J.B. Hunt presented an excerpt from
Greenlee’s deposition, a record of a verbal warning given to Greenlee concerning her
tardiness, an affidavit of Clifford Sandsmark, J.B. Hunt’s Human Resources Manager, pages
from the Preliminary Designation of FMLA or Other Qualified Leave for J.B. Hunt
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Employees, a notice of employee reprimand given to Greenlee, management instructions, and
a note from Greenlee’s doctor. In Greenlee’s deposition, she admitted that she had at least
fifteen instances of clocking in late in September and October of 2002. On October 18,
2002, Greenlee was given a verbal warning about her tardiness, which she signed.
Sandsmark’s affidavit explained that in January 2003, when Greenlee was having
problems with her pregnancy, J.B. Hunt granted her up to thirty days of personal leave,
which J.B. Hunt provided to employees who had worked for the company for at least sixty
days but were not entitled to FMLA or pre-FMLA medical leave. Greenlee had been
employed with J.B. Hunt approximately four and one-half months at that time. The
following month, Greenlee was given a written reprimand for attendance problems unrelated
to her pregnancy. The reprimand stated:
From September 27, 2002 to date, Billie Jo has accumulated 42.25 attendance
points.
Billie Jo has missed excessive time for reasons other than her medical condition,
reasons which do not qualify for an exemption to the attendance policy. As an
example, Billie Jo left work early yesterday (2/27/03) for personal reasons (car
shopping) and will be assessed points.
...
Billie Joe understands that the leave provided only covers her current medical
condition, and that she is still subject to the progressive attendance discipline
policy. If she misses any further time because of the medical condition that was
approved for leave, she will provide a Doctor’s note to verify the need for her
absence. Because of the amount of time missed, Billie Jo understands that this
will serve as a final warning and that any other missed time (tardiness, leave
work early, missed days, etc.) due to reasons other than her condition will lead
to termination of employment.
On March 7, 2003, Greenlee was instructed by her physician that she was not to return
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to work due to her complications with her pregnancy and her doctor sent instructions that
she be put on bed rest. While Greenlee applied for leave under pre-FMLA, she did not
qualify because she had not worked for a continuous period of six months at J.B. Hunt.
According to Sandsmark’s affidavit, he had assisted her in filling out the required paperwork
but had reminded her that he did not have the authority to make the final decision on
approving leave. On March 12, 2003, Sandsmark called Greenlee and informed her that the
group-benefits department had denied her request for leave under pre-FMLA and that she
was terminated because she could not return to work, had past absenteeism, and failed to
qualify for additional leave.
Greenlee then failed to meet her burden under the third prong of McDonnell Douglas
because she did not proffer evidence to prove that the explanation provided by J.B. Hunt was
pretextual. In her response to J.B. Hunt’s motion for summary judgment, she attached
excerpts from her own deposition, the deposition of Sandsmark, the deposition of Rose
Becraft, the deposition of Jerry Birge, Greenlee’s department manager at J.B. Hunt, and the
deposition of Brad Ledgerwood, Greenlee’s immediate supervisor at J.B. Hunt. In her
deposition, Greenlee alleged that after she became pregnant, she was treated differently by
Jerry Birge. She claimed that he began to write her up for things like not tucking in her shirt,
eating at her desk, and taking a fifteen-minute break after an upsetting phone call from her
physician. She further contended that he would give her assignments he knew that she could
not complete because of her pregnancy, such as lifting heavy boxes. However, those
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allegations were not made in Greenlee’s original complaint. Additionally, in the deposition
excerpt of Jerry Birge that was included in Greenlee’s exhibits, Birge was never asked about
any of those allegations. Rather, he testified that Greenlee “was actually a good employee
while she was at work . . . [j]ust getting her to work and keeping her in a chair was the
problem.” Finally, the evidence provided that Jerry Birge was not involved in the final
decision to terminate Greenlee.
In Sandsmark’s deposition, he testified that the reason for Greenlee’s termination was
that she was not eligible for additional leave. Rose Becraft, who made the final determination
that Greenlee did not qualify for pre-FMLA, affirmed that reasoning. When asked about
Greenlee’s past tardiness and absenteeism, she stated she could not say they were not a
contributing factor, but the reason that she told Sandsmark that Greenlee could be terminated
was because she was not eligible for further leave.
Becraft testified that during that
conversation, Sandsmark agreed that Greenlee should be terminated. Becraft also testified that
she and Sandsmark both knew of Greenlee’s past tardiness and absenteeism, but could not
recall if that was discussed at all in that conversation.
Based on the evidence presented by Greenlee, she most certainly did not proffer
anything that proved that the explanation provided by J.B. Hunt was pretextual. Therefore,
Greenlee’s claim fails under the McDonnell Douglas test.
Greenlee’s final argument on appeal is that J.B. Hunt’s sick-leave policy was
discriminatory because it did not provide coverage for absences related to pregnancy.
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However, this argument is without merit. J.B. Hunt’s leave policies did not exclude
pregnancy or pregnancy-related conditions. J.B. Hunt’s policy for leave under both FMLA
and pre-FMLA included pregnancy as a qualifying condition. The undisputed fact is that
Greenlee was not eligible for leave under FMLA or pre-FMLA because she had only been
with the company for a short time. The federal courts have made it clear that even the
federal Pregnancy Discrimination Act only requires that pregnant women be treated the same
as similarly-situated employees, not be given preferential treatment. See Lang v. Star Herald,
107 F.3d 1308 (8th Cir. 1997).
For all these reasons, we hold that Greenlee failed to show that there was a genuine
issue as to a material fact or that reasonable differing inferences could have be drawn from the
undisputed facts. Therefore, the circuit court did not err in granting summary judgment for
J.B. Hunt, and we affirm.
Affirmed.
IMBER, J., not participating.
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