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Byars v. Petrol III, LLC

United States District Court, D. Nebraska

March 27, 2019

TOSHA A. BYARS, Plaintiff,
v.
PETROL III, LLC, a Nebraska limited liability company, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon, Senior United States District Judge

         This matter is before the Court on Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Filing No. 38. Plaintiff bought this action alleging retaliation in employment under 42 U.S.C. 2000e-2 et seq and Neb. Rev. Stat. §§ 48-1004 et seq. Filing No. 1. Plaintiff dually filed her charge of retaliation with the Nebraska Equal Opportunity Commission (“NEOC”), NEB 1-15/16-5-48038-RS, and the Equal Employment Opportunity Commission (“EEOC”), 32E-2016-00561. Filing No. 1, at 4. The EEOC issued a right to sue letter on December 23, 2016. Id.

         I. STANDARD OF REVIEW

         Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The movant ‘bears the initial responsibility of informing the district court of the basis for its motion and must identify ‘those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.'” Torgerson v. City of Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). If the movant does so, “the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.'” Id. (quoting Celotex, 477 U.S. at 324). “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If “reasonable minds could differ as to the import of the evidence, ” summary judgment should not be granted. Id. at 251.

         The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations.” Id. “Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).

         II. BACKGROUND

         This case involves allegations that Defendant retaliated against Plaintiff after Plaintiff's now ex-girlfriend, Lekenvish Alford, filed a discrimination charge based on sexual harassment against Defendant.[1] Filing No. 1, at 2. In August of 2015, Plaintiff was hired by Defendant to work at Defendant's store, Kicks 66. Id. According to the Plaintiff, Plaintiff and Alford were living together “[a]t the time” Plaintiff began working at Kicks 66. Filing No. 43-3, Byars Dep. 10:15-16, Oct. 3, 2018. In November, Alford reported that she had been sexually harassed by a coworker, to the Defendant. Filing No. 1, Complaint, at 4-6, Alford v. Petrol III, LLC., 8:17-cv-00092. After she reported that she had been harassed, she was terminated. Id. On February 5, 2016, Alford filed a claim of discrimination based on sexual harassment with the NEOC. Id. at 2-3.

         Plaintiff alleges that after the claim was filed, her supervisor, Deb Kiety, the Kicks 66 location manager, began changing the terms and conditions of Plaintiff's employment. Filing No. 1, at 2. Plaintiff states that Kiety began avoiding Plaintiff and “hyper-monitoring” her work performance. Id. at 3. Ultimately, Plaintiff was fired on March 25, 2016. Id. at 3. Plaintiff was informed that she was fired for violating an anti-cellphone policy. Id. Plaintiff argues that she was fired in retaliation of Alford's actions. Id. at 5.

         In contrast, Defendant alleges that during Plaintiff's first two months of employment, she was reprimanded “many times” for abuse of the time clock, accounting for her cash draw, and violating a cell phone policy. Filing No. 39, at 5. Defendant states that Byars received written reprimands on both November 30, 2015 and December 9, 2015. Id. at 5-6. With regards to the cellphone policy, Defendant argues that the cellphone policy had been in effect as early as February 1, 2013 as part of Defendant's “Policies and Procedures” handbook. Id. at 3. Defendant states that Plaintiff was provided a copy of the handbook upon being hired and therefore, was on notice that she was violating company policy. Id. at 4.

         In response, Plaintiff alleges that the only disciplinary actions against her were within a three-week window after Alford filed a sexual harassment claim against Defendant. Filing No. 1, at 4. Moreover, Plaintiff states that the cellphone policy was only implemented in March of 2016. Id. She argues that the first time she signed an acknowledgement of the cellphone policy was on the day she was fired. Id.

         III. DISCUSSION

         Title VII provides that it shall be an unlawful employment practice for any employer to retaliate against an employee or an applicant for employment “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (1994). A Title VII claim may be brought by an individual who does not directly oppose an unlawful employment practice so long as they fall within the zone of interests intended to be protected by Title VII. See e.g. generally Thompson v. North American Stainless, LP, 562 U.S. 170, 177-78 (2001) (holding that a plaintiff had a cause of action when he was retaliated against after his fiancé filed a sex discrimination charge against their common employer).

         To establish a prima facie claim of retaliation, the plaintiff has to show that: (1) she filed a charge of harassment or engaged in other protected activity; (2) her employer subsequently took an adverse employment action against her; and (3) the adverse action was casually linked to his protected activity. See Cross v. Cleaver, 142 F.3d 1059, 1071- 72 (8th Cir. 1998). If the plaintiff makes this showing, the employer must then rebut the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Id.If the employer does this, the burden of proof shifts back to the plaintiff to demonstrate that the employer's nondiscriminatory reason is pretextual. Id. at 1072.

         a. ...


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