United States District Court, D. Nebraska
TUMININU J. OLUYOLE, Plaintiff,
YAHOO!, INC., Defendant.
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
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.
following facts are those stated in the Parties' briefs,
supported by pinpoint citations to evidence in the record, in
compliance with NECivR 56.1 and Federal Rule of Civil
the relevant time,  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,  but he never complained
to Human Resources during his time at Yahoo! or to Smiddy
after his promotion.
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
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). 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.
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. 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.
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.
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.
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).
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)).
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.
Race Discrimination and Retaliation
claims Yahoo! discharged him in violation of Title
VII and the Nebraska Fair Employment
Practices Act (“NFEPA”),  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,
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)).
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 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
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).
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.
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.
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.
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.
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).
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.
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
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.”).
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 ...