United States District Court, D. Nebraska
TOSHA A. BYARS, Plaintiff,
PETROL III, LLC, a Nebraska limited liability company, Defendant.
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge
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.
STANDARD OF REVIEW
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.
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).
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. 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.
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.
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.
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.
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).
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.