United States District Court, D. Nebraska
ROSS F. TREMAINE, Plaintiff,
GOODWILL INDUSTRIES, INC., a Nebraska nonprofit corporation; Defendant.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion for Summary
Judgment, ECF No. 38, filed by Defendant Goodwill Industries,
Inc. For the reasons stated below, the Motion will be
otherwise indicated, the following facts are those stated in
the parties' briefs, supported by pinpoint citations to
admissible evidence in the record, in compliance with NECivR
and Federal Rule of Civil Procedure 56.
hired Plaintiff Ross Tremaine as a Facilities Manager on
October 17, 2011. In this position, Tremaine oversaw the
maintenance, efficiency, and safety of Goodwill's
buildings, which included managing custodial staff and
procuring furniture, utilities, and equipment. In February of
2014, Randy Parks, Tremaine's immediate supervisor,
promoted him to Facilities Director. He retained all of his
responsibilities as Facilities Manager and took on the added
responsibilities of serving on the Executive Staff and Crisis
Management Team. He became involved in budget planning,
assisted in developing safety programs, and led a job hazard
analysis of the facilities under his care. He also oversaw
the performance of vendor contracts for Goodwill's
building systems and operations. One employee, Brett Karnes,
directly reported to Tremaine and as many as four employees
indirectly reported to him while he was the Facilities
Director. Before working at Goodwill, Tremaine worked in the
facilities industry for twenty years, but had no formal
education beyond high school.
about February 9, 2015, Kent Caniglia was promoted to
Director of Risk Management and became Tremaine's
immediate supervisor. Caniglia reported directly to Parks. On
July 10, 2015, Parks decided to terminate Tremaine after
Karnes verbally reported to Caniglia that Tremaine had been
removing company tools from the workplace and taking them
home for his own personal use without permission and against
company policy. Following Karnes's report, Caniglia and
Jennifer Rohr, the Human Resources Director, began an
investigation and interviewed Tremaine regarding the contents
of the report. During the interview, Tremaine conceded he had
taken a table saw, hand saw, chop saw, and compressor, and
that he had been in possession of the compressor for at least
two months. Tremaine Depo., ECF No. 41-2, Page ID 306, 352.
Though Tremaine disputes this fact, Karnes reported that
Tremaine had instructed him to repurchase, on Goodwill's
behalf, some of the tools he had taken home. After reviewing
the investigation's findings, Parks concluded
Tremaine's conduct clearly violated company policy
because he made personal use of company tools for extended
periods of time and deprived other employees of their use at
work. He also concluded that the circumstances indicated
Tremaine intended to keep some tools indefinitely. Tremaine
identified Gale Husk and Karnes as other employees who had,
on prior occasions, also made personal use of company tools.
Karnes and Caniglia absorbed Tremaine's job
responsibilities after he was terminated.
Tremaine started at Goodwill as the Facilities Manager on
October 17, 2011, he was compensated at an annual salary of
$60, 000. He received several performance-based, periodic
raises and when he was promoted to Facilities Director in
February of 2014, his salary increased to $71, 150. He
received his last annual raise before he was terminated on
October 17, 2014, which increased his salary to $73, 300. Two
female employees, Erin Swanson-Russell and Shannon McGree,
also held director positions at Goodwill throughout the time
Tremaine was Facilities Director. Swanson-Russell was hired
as the Director of Planned Giving on or about July 27, 2012,
at an annual salary of $105, 900. Goodwill changed her job
title to Development Director on February 10, 2014, and by July
27, 2015, her salary had increased to $118, 500. McGree was
hired on October 11, 2004, as an Assistant Store Manager at
an annual salary of $24, 000. On September 17, 2011, she was
promoted to Retail Sales Director and her salary was
increased to $62, 500. Like other Goodwill employees, she
received annual performance-based raises and by September,
17, 2014, her salary was $72, 275. As Retail Sales Director,
McGree was also eligible to receive monthly and quarterly
bonuses based on store revenue under the Retail Management
Bonus Program. Neither Tremaine nor Swanson-Russell was
eligible for bonuses under the Retail Management Bonus
Development Director, Swanson-Russell was responsible for
managing Goodwill's overall fundraising efforts, leading
resource and community development efforts, and establishing
fundraising strategies, policies, and goals. ECF No. 41-16,
Page ID 613-17. She was responsible for cultivating donor
relationships, applying for grant funding, and
“implementing a Legacy Society for persons who commit
resources to Goodwill” as part of an estate plan.
Id. Her position required a bachelor's degree,
but preferred a master's degree in a relevant area of
study, and it is undisputed she possessed both. Pl.'s
Br., ECF No. 44, Page ID 655. As the Retail Sales Director,
McGree oversaw retail operations for seventeen Goodwill
stores, including the collection, processing, distribution,
and sales of donated goods. She was responsible for the
overall fiscal viability of each store and the supervision of
over 200 retail employees. This position preferred a
bachelor's degree in a field related to retail, and
McGree had a bachelor's degree in
claims Goodwill unlawfully discriminated against him by
paying him less than Swanson-Russell and McGree and by
terminating his employment because of his age and sex. At
termination, he was forty-eight years old. Specifically, he
claims Goodwill's decisions regarding his wages and
termination violated the Equal Pay Act (EPA), 29 U.S.C.
§ 206(d)(1); the Equal Pay Act of Nebraska (EPAN), Neb.
Rev. Stat. § 48-1221(1); Title VII, 42 U.S.C. §
2000e-2(a)(1); the Nebraska Fair Employment Practices Act
(NFEPA), Neb. Rev. Stat. § 48-1104(1); the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
623(a)(1); and the Nebraska Age Discrimination in Employment
Act, Neb. Rev. Stat. § 48-1004(1)(a).
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 Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir.
has failed to establish a prima facie case for unequal pay
under the EPA and the EPAN. There is also no evidence that
Goodwill intentionally discriminated against Tremaine because
of his age or sex.
Equal Pay Claims
establish a claim for sex-based wage discrimination under the
EPA or EPAN, “a plaintiff must show by a
preponderance of the evidence that (1) [he] was paid less
than a [woman] employed in the same establishment, (2) for
equal work on jobs requiring equal skill, effort, and
responsibility, (3) which were performed under similar
working conditions.” Dindinger v. Allsteel,
Inc., 853 F.3d 414, 421-22 (8th Cir. 2017) (quoting
Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029
(8th Cir. 2002)); see also 29 U.S.C. § 206(d);
29 C.F.R. §§ 1620.13-1620.17. An employer may
“establish an affirmative defense by demonstrating that
“different payment to employees of opposite sexes
‘is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by
quantity or quality of production; or (iv) a differential
based on any other factor other than sex.'”
Dindinger, 853 F.3d at 422 (quoting 29 U.S.C. §
206(d)(1)). Tremaine claims the disparity between his wages
and those paid to Erin Swanson-Russell and Shannon McGree
violated the EPA and EPAN.
cannot establish a prima facie case because he and
Swanson-Russell did not perform substantially equal work in
jobs requiring equal skill or responsibility. 29 U.S.C.
§ 206(d). “In a wage discrimination case, although
the jobs being compared need not be identical, they must be
substantially equal as actually performed.” Hill v.
City of Pine Bluff, 696 F.3d 709, 712 (8th Cir. 2012)
(citing Simpson v. Merchs. &Planters
Bank, 441 F.3d 572, 578 (8th Cir. 2006)). “Job