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Oluyole v. Yahoo!, Inc.

United States District Court, D. Nebraska

August 7, 2017

YAHOO!, INC., Defendant.


          Laurie Smith Camp, Chief United States District Judge

         This matter is before the Court on the Motion for Summary Judgment, ECF No. 82, filed by Defendant Yahoo!, Inc. (“Yahoo!”), and the Motion for Leave to File Sur-Reply Brief, ECF No. 96, filed by Plaintiff Tumininu Oluyole (“Oluyole”). For the reasons stated below, Yahoo!'s Motion will be granted and Oluyole's Motion will be denied.


         The following facts are those stated in the Parties' briefs, supported by pinpoint citations to evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56.

         During the relevant time, [2] Yahoo! was a technology company with approximately 12, 200 employees worldwide, 225 of whom worked in the company's Omaha, Nebraska, office. Oluyole began working in the Omaha office as a Revenue Share Accountant (Accountant II) on September 24, 2012, with Parker Thornburg (“Thornburg”) as his immediate supervisor. Mary Rocha (“Rocha”), also an Accountant II supervised by Thornburg, was one of Oluyole's friends and coworkers at Yahoo!. Oluyole and Rocha often shared with each other their personal complaints about Thornburg's management, and Oluyole claims that Thornburg often made insulting comments and remarks about Oluyole's Nigerian food, clothing, and accent. Oluyole also claims that Thornburg made an effort to prevent Oluyole from being promoted and from advancing within the company. Nevertheless, Oluyole was promoted ahead of schedule to Senior Accounts Payable Analyst (Accountant III) on or about November 13, 2013. This position was in a new department and Laura Smiddy (“Smiddy”) became Oluyole's new immediate supervisor. Oluyole alleges he complained about Thornburg's treatment to Thornburg himself and to other upper-management personnel, [3] but he never complained to Human Resources during his time at Yahoo! or to Smiddy after his promotion.

         Sometime in December 2013 or January 2014, Thornburg recommended to Scott Garner (“Garner”), Thornburg's own immediate supervisor, that Rocha be terminated for poor work performance. On January 10, 2014, Rocha and Garner discussed the possibility of a severance agreement, and on January 21, 2014, Rocha voluntarily resigned from her position at Yahoo! with the understanding that she would be given a severance package.

         It is Yahoo!'s custom to review a former employee's Yahoo!-issued computer to reassign any outstanding projects and extract any work that may have been in progress. On the day of Rocha's resignation, Thornburg and Michelle Dahlmann (“Dahlmann”), an information technology employee, logged on to Rocha's Yahoo!-issued computer to review the saved files. During the review, they discovered a completed application to work at High Sierra Energy, which inaccurately listed Oluyole as Rocha's supervisor at Yahoo!. Application for Employment, ECF No. 83-18, Page ID 754. Dahlmann and Thornburg then decided to review Rocha's instant message (“IM”) conversations to determine whether Oluyole was aware of Rocha's intention to misrepresent their work relationship. They discovered a January 7, 2014, conversation where Oluyole instructed Rocha to use him as a “manager/reffersl” (sic).[4] Thornburg forwarded the application and the IM correspondence to Artimiss Fagerlund (“Fagerlund”), an H.R. employee, who investigated the matter and informed Rocha that her severance benefits would be revoked. Oluyole maintains Thornburg inappropriately reviewed Rocha's computer, misrepresented the facts regarding the issue, and “strategically concocted a story of alleged misconduct.” Pl.'s Br. Summ. J., ECF No. 92, Page ID 883.

         On February 13, 2014, Fagerlund met with David White (“White”), Yahoo!'s Global Process Owner-Payables, Credit & Collections Officer, to discuss the matter. White then briefed Aman Kothari (“Kothari”), Yahoo!'s Senior Vice President, Global Controller & Chief Accounting Officer, and they decided to terminate Oluyole's employment for instructing Rocha to misrepresent their work relationship in violation of Yahoo!'s ethics policies.[5] Email Correspondence, ECF No. 83-14, Page ID 738 (“I [White] briefed Aman [Kothari] and he is in agreement that we should proceed with termination.”). On February 21, 2014, White, Fagerlund, and Christina Schmitz, Smiddy's immediate supervisor, discussed how to proceed with the termination, and on February 24, 2014, Oluyole was discharged.

         Oluyole claims his IM messages were misunderstood because he managed Rocha at D&K Financial, his part-time tax preparation business, and it was his intention that Rocha use him as a supervisor reference in that capacity. Rocha, however, was never an employee at D&K Financial and she was never paid for any work there. Oluyole Depo., ECF No. 92-4, Page ID 969-70. Oluyole also did not provide this as an explanation in his correspondence with Fagerlund after Oluyole was terminated. See Email Correspondence, ECF No. 92-24, Page ID 1256-57.

         Oluyole brought this action against Yahoo!, alleging several claims, many of which have been dismissed by the Court. See Memorandum and Order, ECF No. 34, Page ID 326. Oluyole's remaining claims allege discrimination on the basis of his race, color, and national origin; retaliation; and hostile work environment in violation of federal and Nebraska state law. His claims also allege Yahoo! violated the Nebraska Wage Payment and Collection Act (“NWPCA”) when the company decided not to pay Oluyole a bonus or for his unused New Child Leave time after he was terminated. In its Motion for Summary Judgment, Yahoo! argues that Oluyole has not established a prima facie case of discrimination, retaliation, or hostile work environment, and that Yahoo! had a legitimate nondiscriminatory, non-retaliatory reason for terminating his employment. It further asserts that Yahoo! was not obligated, as a matter of law, to pay Oluyole a bonus or any payment for his unused New Child Leave time.


         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

         In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “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.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual dispute” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

         In other words, in deciding “a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise, where the Court finds that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ” there is no “genuine issue of material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076 (quoting Grage v. N. States Powe r Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).


         I. Race Discrimination and Retaliation

         Oluyole claims Yahoo! discharged him in violation of Title VII[6] and the Nebraska Fair Employment Practices Act (“NFEPA”), [7] because of his status as an African-American, and his national origin-Nigerian. He also claims Yahoo! retaliated against him, in violation of 42 U.S.C. § 1981, for complaining about the treatment he received from his supervisor, Thornburg.

         Title VII prohibits employers from discriminating against employees because of their race, color, or national origin, 42 U.S.C. § 2000e-2(a)(1); and 42 U.S.C. § 1981 “prohibit[s] employers from retaliating against employees for opposing racial discrimination.” Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013). Claims of discrimination and retaliation brought under § 1981 are analyzed in the same manner as discrimination and retaliation claims brought under Title VII, id.; and the Nebraska Supreme Court and the Eighth Circuit “have stated the NFEPA ‘is patterned after Title VII, ' and, therefore, ‘it is appropriate to consider federal court decisions construing the federal legislation' when considering questions under the NFEPA.” Al-Zubaidy v. TEK Industries, Inc., 406 F.3d 1039 (quoting City of Fort Calhoun v. Collins, 500 N.W.2d 822, 825 (Neb. 1993)).

         “To survive a motion for summary judgment with a Title VII claim, a plaintiff must show either direct evidence of a Title VII violation or create an i nference of discrimination or retaliation under the McDonnell Douglas[8] burden-shifting framework” by first establishing a prima facie case. Shirrell v. St. Francis Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015). If Oluyole is able to prove a prima facie case, “a presumption of discrimination arises and the burden shifts to [the defendant, Yahoo!, ] to present evidence of a ‘legitimate, nondiscriminatory [or non-retaliatory] reason for' its adverse employment action.” Banks v. Deere, 829 F.3d 661, 666 (8th Cir. 2016) (quoting McDonnell Douglas, 411 U.S. at 802). “If [Yahoo!] meets that burden, the presumption disappears and [Oluyole] must prove [Yahoo!'s] proffered justification is merely a pretext for discrimination [or retaliation].” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir. 2015). Oluyole advances both his federal claims and Nebraska state law claims under the McDonnel Douglas burden-shifting framework.

         a. Discrimination

         Oluyole argues he has provided direct evidence of discriminatory animus under a cat's paw theory of liability. See Diaz v. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1152 (8th Cir. 2011) (explaining a cat's paw theory establishes direct evidence). This theory “applies in situations where ‘a biased subordinate, who lacks decision making power, uses the formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory [discharge].'” Cherry v. Siemens Healthcare Diagnostics, Inc., 829 F.3d 974, 977 (8th Cir. 2016) (quoting Qamhiyah v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 741 (8th Cir. 2009)). Thus, “an employer may be vicariously liable for an adverse employment action if one of its agents-other than the ultimate decision maker-is motivated by discriminatory animus and intentionally and proximately causes the action.” Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013).

         Oluyole's cat's paw theory does not establish direct evidence of discrimination. Thornburg did not make the ultimate decision to terminate Oluyole-that decision was made by White and Kothari with no involvement from Thornburg. White Depo., ECF No. 83-12, Page ID 721; Kothari Depo., ECF No. 83-13, Page ID 732; Thornburg Depo., ECF No. 83-9, Page ID 692; Johnstone Depo., ECF No. 83-15, Page ID 744. Nevertheless, Oluyole contends that because Thornburg made comments about Oluyole's Nigerian food, clothing, and accent, and because Thornburg provided H.R. with information that served as the basis for the decision to terminate Oluyole, he has provided direct evidence of discrimination.

         Thornburg's comments and remarks were made at least three months before Oluyole's termination and at least two months before Thornburg's decision to review Rocha's computer and to contact H.R. There is no evidence that his prior remarks were “[ ]related, in any way, ” to the decision to terminate Oluyole. T wymon v. Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006) (quoting Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (“stray remarks in the workplace, ” “statements by nondecisionmakers, ” and “statements by decisionmakers unrelated to the decisional process itself” do not constitute direct evidence). Moreover, there is no evidence that Thornburg's conduct-reviewing Rocha's Yahoo!-issued computer after she resigned, and notifying H.R. that it appeared Rocha and Oluyole agreed to misrepresent their work relationship-was “motivated by discriminatory animus” toward Oluyole. Bennett, 721 F.3d at 551. As such, there is no evidentiary support for Oluyole's theory that Thornburg “strategically concocted a story of alleged misconduct” in an effort to get Oluyole fired because of his race and nationality. Rather, the evidence demonstrates potential impropriety on the part of Oluyole. See Application for Employment, ECF No. 83-18, Page ID 754 (listing Oluyole as Rocha's supervisor at Yahoo!); see IM Correspondence, ECF No. 83-19, Page ID 759 (Oluyole instructing Rocha to use him as a “manager/refer[a]l”). Accordingly, the record does not contain any direct evidence of discrimination based on race, color, or nationality.

         Oluyole must, therefore, satisfy the McDonnell Douglas burden-shifting framework and establish a prima facie case of discrimination by showing: “(1) he is a member of a protected class, (2) he met his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) the circumstances give rise to an inference of discrimination (for example, similarly situated employees outside the protected class were treated differently).” Gibson v. Am. Greeting Corp., 670 F.3d 844, 853-54 (8th Cir. 2012). Yahoo! Asserts that Oluyole's prima facie case fails because he did not meet Yahoo!'s legitimate expectations and because the circumstances do not give rise to an inference of discrimination, i.e., the second and fourth elements are lacking.

         Yahoo! notes that Oluyole violated company ethics policies when he instructed Rocha to use him as a manager/reference. Although violating a company policy may mean an employee failed to meet legitimate expectations, see Wright v. Winnebago Indus., Inc., 551 F.Supp.2d 836, 847 (N.D. Iowa 2008), there is a genuine factual dispute as to whether Oluyole actually violated Yahoo!'s company policy. It appears, on the face of the evidence, that Oluyole dishonestly and unethically instructed Rocha to state he was her supervisor at Yahoo!-Rocha actually listed Oluyole as her Yahoo! supervisor on her High Sierra Energy application and Oluyole told her to “just use me as manager/referrsl (sic).” Application for Employment, ECF No. 83-18, Page ID 754; IM Correspondence, ECF No. 83-19, Page ID 759. Oluyole, however, maintains that he managed Rocha at D&K Financial, his part-time tax business, and that he was referring to this particular work relationship rather than their relationship at Yahoo! where he was not Rocha's manager or supervisor. Accordingly, Oluyole has raised a genuine factual dispute as to whether he violated Yahoo!'s company policy and, thus, failed to meet Yahoo!'s legitimate expectations. This dispute is not material, however, because Oluyole has not established the fourth element of a prima facie case.

         Oluyole asserts that the circumstances justify an inference of discrimination because he and Thornburg engaged in similar conduct yet Thornburg, who is white, was “treated more favorably than him.” Pl.'s Br. Summ. J., ECF No. 92, Page ID 886. “A plaintiff can prove the fourth element”-that the circumstances give rise to an inference of discrimination-“by putting forth facts that similarly situated employees, who are not [of the same race or nationality], were treated differently.” Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir. 2012) (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 850-51 (8th Cir. 2005)). Thus, Oluyole must show that he and Thornburg were “involved in or accused of the same or similar conduct[, but were] disciplined in different ways.” Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009).[9]

         Oluyole asserts that Thornburg engaged in the same conduct that Oluyole was accused of engaging in, i.e., Thornburg dishonestly and unethically “misrepresented facts and documents to [Yahoo!] relating to [Oluyole] and Rocha, ” but was never disciplined. Pl.'s Br. Summ. J., ECF No. 92, Page ID 885-86. However, the evidence demonstrates that Oluyole and Thornburg did not engage in sufficiently similar conduct to justify an inference of discrimination. Oluyole claims Thornburg misrepresented facts by telling Fagerlund that Rocha was applying to work at Gavilon when she was actually applying to work at High Sierra Energy and by stating Rocha had received an offer letter. Thornburg also told Alexi Wellman, a senior vice president, that he was concerned Rocha had listed Oluyole as her Yahoo! supervisor on her application to Gavilon. It is unclear from the evidence how Thornburg came to these conclusions, but the correct High Sierra Energy application ultimately was given to H.R. and an offer letter was never produced. Thornburg's conduct and Oluyole's conduct lack similarity because Oluyole was accused of instructing a co-worker to misrepresent a work relationship to outside employers while Thornburg inaccurately reported insignificant facts to H.R. and Alexi Wellman. The conduct not sufficiently similar to give rise to an inference of discrimination.

         The evidence further shows that Mary Rocha, a similarly situated white employee, was disciplined for her own role in misrepresenting her working relationship with Oluyole. After it was discovered that she listed Oluyole as her Yahoo! supervisor, the company decided to revoke her severance and later decided to terminate Oluyole's employment. Thus, Rocha, a white employee from the United States, and Oluyole, an African-American employee from Nigeria, were both similarly punished for engaging in the same course of conduct. These circumstances do not give rise to an inference of discrimination based on race, color, or national origin. See Bundy v. U.S. Bank Nat'l Ass'n, 972 F.Supp.2d 1055, 1060-61 (D. Minn. 2013) (finding no inference of race discrimination where a white employee and a black employee were both terminated for the same reason) (citing Fowler v. Visiting Nurse Serv. of N.Y., No. 06 Civ. 4351, 2007 WL 3256129, at *5 (S.D.N.Y. Oct. 31, 2007) (finding no inference of discrimination where persons inside and outside the protected class were treated similarly)); see also Streeter v. Premier Serv., Inc., 9 F.Supp.3d 972, 980 (N.D. Iowa 2014) (finding the fourth element of the plaintiff's prima facie case was not established where some white and some nonwhite employees violated the same policy and were similarly disciplined). Therefore, Oluyole has failed to establish a prima facie case of discrimination.

         Oluyole's discrimination claim would fail even if he were able to establish a prima facie case, because he cannot prove that Yahoo!'s proffered rationale for terminating his employment was a pretext. Yahoo! maintains it terminated Oluyole not because of his race, color, or national origin, but because he violated an ethics policy when he instructed Rocha to name him as a manager/referral. Thus, Yahoo! has discharged its burden of providing a legitimate nondiscriminatory reason for Oluyole's termination. See Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (en banc) (“The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence.”).

         Pretext can be established by (1) “persuading the court that a discriminatory reason more likely motivated the employer;” (2) “showing that the employer's proffered reason is unworthy of credence, ” Jones v. Nat'l Am. Univ., 608 F.3d 1039, 1046 (8th Cir. 2010); (3) “showing that it was unlikely an employer would have acted on the basis of the proffered reason;” (4) “showing that it was not the employer's policy or practice to respond to such problems in the way it responded in the plaintiff's case, ” Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir. 2013); or (5) “presenting evidence that the employer's proffered reason has changed substantially over time.” Jones, 608 F.3d at 1046; see also Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2014). “At the pretext stage, the evidence is viewed in light of the employer's justification.” Ebersole, 758 F.3d at 925; see Bone v. G4S Youth Servs., LLC, 686 F.3d ...

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