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Tremaine v. Goodwill Industries, Inc.

United States District Court, D. Nebraska

May 31, 2018

ROSS F. TREMAINE, Plaintiff,
v.
GOODWILL INDUSTRIES, INC., a Nebraska nonprofit corporation; Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This 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 granted.

         BACKGROUND

         Unless 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 56.1[1] and Federal Rule of Civil Procedure 56.

         Goodwill 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.

         On or 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.

         When 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[2] 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 Program.

         As the 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 education.[3]

         Tremaine 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).

         STANDARD OF REVIEW

         “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 Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).

         DISCUSSION

         Tremaine 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.

         I. Equal Pay Claims

         To establish a claim for sex-based wage discrimination under the EPA or EPAN[4], “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.

         A. Erin Swanson-Russell

         Tremaine 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 ...


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