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O'Connor v. Temple-Inland, Inc.: US District Court : EMPLOYMENT - summary judgment for employer on gender discrimination claims

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Colleen OConnor,
Plaintiff,
Civ. No. 06-4263 (RHK/JSM)
MEMORANDUM OPINION
AND ORDER
v.
Temple-Inland, Inc.,
Defendant.
Tammy P. Friederichs, Stephen M. Thompson, Friederichs & Thompson, PA,
Bloomington, Minnesota, for Plaintiff.
Ada W. Dolph, Beth G. Joffe, Seyfarth Shaw LLP, Chicago, Illinois, Joseph G. Schmitt,
Katie M. Connolly, Halleland Lewis Nilan & Johnson, PA, Minneapolis, Minnesota, for
Defendant.
INTRODUCTION
Plaintiff Colleen OConnor (OConnor) has sued her former employer, Temple-
Inland, Inc. (Temple-Inland), alleging that it discriminated against her due to her
gender, subjected her to a hostile work environment, and retaliated against her for
complaining about the purported discrimination. Temple-Inland has moved for summary
judgment on all of OConnors claims. For the reasons set forth below, the Court will
grant the Motion.
2
BACKGROUND
I. The Parties
Temple-Inland is a Minnesota corporation that produces cardboard packaging at
its plant in Shakopee, Minnesota. (Jorgenson Dep. at 18.) On August 15, 2005, Temple-
Inland hired OConnor as a general laborer. (Pavek Dep. at 69.) During her first week of
employment, OConnor received classroom training on general plant safety and
employee orientation. (OConnor Dep. at 58.) She initially began working as a Mini
Press Operator, but ultimately agreed to work as a Roll Handler. (Id. at 64-65.)
II. The Roll Handler Position
The main function of a Roll Handler is to bring rolls of paper to the Corrugator
Machine (Corrugator) via a clamp truck.1 (Id. at 265; Poppler Dep. at 12.) New rolls
and partially-used rolls (stubs) are kept in the roll room until needed. (OConnor Dep.
at 97-100.) The Roll Handler uses the clamp truck to carry the appropriate roll to the
Operator of the Corrugator (Operator). The Operator then takes the rolls from the
staging area and puts them into the Corrugator. (Poppler Dep. at 12; Rosentreter Dep. at
47.)
Once the Operator completes the processing of a roll of paper, the Operator
removes the stub from the Corrugator, measures it, and writes the measurements on the
original tag associated with that roll. (Lehnen Dep. at 32; Rosentreter Dep. at 48.) The
Operator then enters the measurements on the computer, which generates a new tag of
1 A clamp truck is a machine similar to a forklift. (OConnor Dep. at 65-66).
3
measurements for that particular roll. (David Thompson Dep. at 50; Lehnen Dep. at 32.)
The Roll Handler is responsible for retrieving the new tag, placing it on the stub, and
writing the size and paper grade on the stub with a marker. (David Thompson Dep. at 49;
Lehnen Dep. at 32.) This process is known as marking and tagging the roll. (Dale
Thompson Dep. at 14; David Thompson Dep. at 37.) The Roll Handler is also
responsible for using the clamp truck to remove the stub from the operating floor and
returning it to its proper storage position in the roll room. (OConnor Dep. at 66-68; Dale
Thompson Dep. at 24-26; Lehnen Dep. at 32-33; Poppler Dep. at 50.)
Each work shift at Temple-Inland has a schedule of runs, which specifies when
the runs will begin and the type of paper (grade and length) to be used. (OConnor Dep.
at 161-63.) Roll Handlers are expected to determine which rolls of paper are needed, and
when they are needed, by looking at the run schedule; Temple-Inland trains its employees
on how to print updated run schedules. (Id. at 164-65; Poppler Dep. at 13.) Other job
duties for Roll Handlers include sweeping the roll stockroom and unloading the rolls
from semi-trailers or rail cars and scanning them into inventory. (OConnor Dep. at 67-
69.)
In her position, OConnor worked with Richard Poppler, who was often assigned
to assist her with her job duties, and with Mike Lehnen and David Thompson, who were
the first-shift Operators. (Lehnen Dep. at 13; David Thompson Dep. at 9; Poppler Dep.
at 6-7.) Her direct supervisor was Jeff Jorgenson, Shift Supervi sor for the Corrugator
Department. (Jorgenson Dep. at 12.) Jorgenson reported to Daryl Worm, Plant
Superintendent. (Worm Dep. at 17.) Worm reported to Pete Pavek, Production Manager,
4
and Pavek reported to Jon Zimmer, General Manager. (Pavek Dep. at 11, 13; Zimmer
Dep. at 5, 10.)
III. Temple-Inlands Corporate Policy
Temple-Inland maintains a policy of Equal Employment Opportunity for all
people irrespective of race, color, age, sex, religion, or national origin and prohibits
behavior in the workplace that is discriminatory or harassing. (Def.s Ex. B.) The
policy sets forth complaint-reporting procedures and prohibits retaliation. ( Id.) During
orientation, OConnor received a copy of the employee handbook containing this policy.
(OConnor Dep. at 58-59; Def.s Ex. B.)
IV. Probationary Period
As with all new employees, OConnor began her employment at Temple-Inland
with a 50 working-day probationary period.2 (OConnor Dep. at 58-60; Pavek Ex. 24;
Simek Dep. at 33.) OConnor understood that the purpose of a probationary period was
to provide her with training and assess her job performance. (OConnor Dep. at 58-60;
Pl.s Ex. 3.) During the probationary period, supervisors provide an employee with
written performance evaluations, called Weekly Progress Reports. (Pavek Dep. at 29-30;
Jorgenson Dep. at 15-16.) Probationary employees must reach a minimum weekly score
of 50 during their probationary period to be retained as a permanent employee. (Pl.s
Ex. 26 (emphasis added).)
2 This period is 50 actual working days when the employee is present at the plant. (Simek
Dep. at 33-34.)
5
V. OConnors Training as a Roll Handler and Her Complaints to Management
On August 19, 2005, OConnor observed what the clamp-truck operator did, how
the Corrugator operated, and how the roll room was organized. (OConnor Dep. at 82-
83.) On August 22, 2005, Temple-Inland provided OConnor with a manual and training
book for the Roll Handler position. ( Id. at 84-85.) She also attended a classroom course
on clamp-truck safety, which included a clamp-truck training video. (Id.)
From August 26, 2005 to September 1, 2005, OConnor practiced (1) driving the
clamp truck and working its controls and (2) picking up, setting down, and maneuvering
rolls with the clamp truck. ( Id. at 89-91, 93-95.) OConnor also learned how to unload
the rolls from the semis and rail cars. (Id. at 94-95.)
On September 2, 2005, OConnor spent three hours making a diagram of the roll
room and spent the rest of the day practicing on the clamp truck and unloading cars.
(Pl.s Ex. 16 at 2.) On September 6, 2005, OConnor unloaded semis; the following day
she spent the morning unloading rails cars and the afternoon unloading semis. ( Id.) On
September 8, 2005, OConnor received training from Poppler in retrieving the required
rolls and returning partial rolls. (Id.) In the afternoon, OConnor performed the Roll
Handler position on her own for the first time. (Id.; OConnor Dep. at 109-10.)
On September 9, 2005, OConnor was instructed to perform the Roll Handler
position alone, but she was unable to keep up and reported to Jorgenson that she felt
undertrained. (Id.) Jorgenson assigned Poppler to assist, but OConnor felt that Poppler
did not sufficiently answer her questions. (Id.) Nonetheless, OConnor indicated that
Poppler did explain how the clamp-truck operators set up the roll on the floor for a run,
6
and showed her a good place to put the stubs that needed to be returned. ( Id.) Later that
day, Jorgenson helped OConnor with moving the rolls to the Corrugators. ( Id.) She felt
that Jorgenson was very adequate in answering [her] questions. (Id.) OConnor
received a performance rating of 31 and Jorgenson noted that she needs to get time on
[the] clamp [truck] to familiarize herself with [the] controls[,] needs to learn roll room
layout[,] [and] ask questions of [the] crew if she d[id] not understand what to do
next . . . . (Pl.s Ex. 15.)
On September 12, 2005, Poppler again assisted OConnor in performing the Roll
Handler job; she testified that Poppler told her that she would never learn to keep up. ( Id.
at 3.) The next day, she was asked to perform the Roll Handler job by herself, but she
was unable to keep up. ( Id.; OConnor Dep. at 127.) The Operators became frustrated
with her performance, caused in part because she had damaged four rolls and slowed
production. ( Id.) OConnor went to Nancy Simonson, Human Resources Manager, and
asked for the same training that a probationary Roll Handler on the third shift had
received, which was one week of training from Dale Thompson, who is the second shift
Roll Handler. (OConnor Dep. at 128-31.) OConnor also told Simonson that she felt
that she was being set up for failure. ( Id. at 131.) At the end of her shift, OConnor
talked to Dale Thompson about her frustrations in not receiving enough training for her
position. (Id. at 142; Pl.s Ex. 16. at 4.) OConnor asserts that Dale Thompson told her
that a woman had never worked as a Roll Handler and that her coworkers were likely
7
trying to push her out. (Pl.s Ex. 16 at 4.) OConnor also claims that Dale Thompson
told her in a very kind way that this was not a job for a woman. 3 (Id.)
OConnor did not go to work on September 14, 2005, because she was unable to
sleep the night before. (OConnor Dep. at 167-68.) From home, she called Zimmer, the
General Manager, and complained (1) about her lack of training and the comments that
Dale Thompson had made to her (id. at 140-41, 254); (2) that her coworkers would yell at
her and it was difficult to hear their answers, which were often incomplete (Zimmer Dep.
at 26-27); (3) about the fast pace at which the Corrugator ran (id. at 27), and (4) that it
was hard for her to keep up.4 (Id. at 25.) Zimmer told OConnor that the Corrugator
area is a loud and fast environment, which might explain why she perceived someone
was yelling at her.5 (Id. at 28.) He said that he would speak with Jorgenson about
providing her with additional training and with the other crewmembers regarding their
communications with her. ( Id.)
On September 15, 2005, Simonson and Zimmer met with OConnor to address her
concerns. (OConnor Dep. at 92, 129, 167-68.) Simonson told her that what Dale
3 Dale Thompson testified that he did not remember talking with OConnor. (Dale Thompson
Dep. at 18-19.)
4 OConnor also sent Zimmer an e-mail concerning her clamp-truck training and documentation
of her interactions at work. (OConnor Dep. at 92, 117-19; Pl.s Ex. 17.) She continued to keep
a detailed journal, in which she recorded all of her interactions at work with her coworkers and
entered the notes in her journal at the end of the day. (Id. at 119-21.) She spent anywhere from
five minutes to several hours completing each journal entry. (Id. at 123.)
5 The Corrugator generates noise at a level of approximately 105 decibels, the equivalent of a
jackhammer. (Zimmer Dep. at 28; OConnor Dep. at 123-24; Poppler Dep. at 46; Def.s Mem.
at 6, n.5.) Every employee is required to wear earplugs on the plant floor to protect their ears
from the noise of the machine. (OConnor Dep. at 123-24.)
8
Thompson allegedly said was not the opinion of management and that they felt a woman
could succeed and expected her to succeed in her position. (Simonson Dep. at 16.)
OConnor told them that she felt she was being pushed too fast and that she had not
received sufficient training to perform her position. (Pl.s Ex. 18.)
The following day, Jorgenson apologized to OConnor about the misunderstanding
with her training. OConnor claims that Jorgenson only spent five minutes with her when
she thought he was going to spend one hour a day with her so that she could ask
questions. (OConnor Dep. at 169.) Jorgenson gave her a list of tasks to complete, a
drawing of roll stock and the correct way to mark them. (Pl.s Ex. 18.) Poppler assisted
OConnor the rest of the day. (OConnor Dep. at 172.) On September 19, 2005,
Jorgenson met with OConnor for about five minutes; he drew her a diagram explaining
the feed sheet, which she found to be helpful. (Pl.s Ex. 18.) Poppler assisted
OConnor the rest of the day. (OConnor Dep. at 172.)
During the ensuing two weeks, Poppler helped OConnor with her job duties and
the Operators assisted by marking rolls for her. (OConnor Dep. at 147-49, 178-79, 199.)
For these two weeks, Jorgenson rated OConnor 39 and 38 and noted that she was still a
little shaky on the clamp truck, needed to work on [her] speed, was confused, and did
not know when the crew was done with a run. (Pl.s Ex. 23-24.)
On September 29, 2005, OConnor worked the Roll Handler position by herself
because Poppler was needed elsewhere in the plant. (OConnor Dep. at 179; Pl.s Ex. 18
at 2-3.) She became frustrated with the increased workload and the Operators expressed
their frustration about her performance, especially her failure to tag and put away all of
9
the stub rolls. (Pl.s Ex. 18 at 3; OConnor Dep. at 180.) For the week of September 26
to September 30, OConnor received a performance rating of 42, which included a
notation that she had very few problems loading and unloading the corrugator by
herself, [but she] [s]till has to work on speed and work on getting all stub rolls tagged and
put away [and] [s]till doesnt understand end of run and what is running . . . . (Pl.s Ex.
25.)
From September 30 forward, OConnor began working the Roll Handler position
alone. (Pl.s Ex. 18 at 3-7.) During this time period, she asserts that on several
occasions, Lehnen and David Thompson, the first-shift Operators, would purposely slow
down production by telling her they no longer needed a certain roll and then later request
that she go back and get the roll she had previously brought to them. (OConnor Dep. at
237-41.) She also claims that on one occasion, she laid a roll in the staging area, facing
the correct way, but that Lehnen and Thompson turned it the wrong way when she was
on break. ( Id. at 229-30.) On another occasion, she lined up the rolls that were needed
for the upcoming run, but claims Lehnen and Thompson removed one of the rolls while
she was on break and told her to go get it again. ( Id. at 230-32.)
On October 11, 2005, OConnor and Poppler were involved in an accident while
driving their clamp trucks, causing the chain on OConnors clamp truck to be ripped
off.6 (Id. at 209-12.) OConnor believes that Poppler intentionally caused the accident.
6 Neither OConnor nor Poppler reported the incident to management on that day (which violated
Temple-Inlands policy) and neither was disciplined for it. (Simonson Dep. at 51, 70.)
OConnor, however, reported the accident the next day to both Chris Rosentreter (the supervisor
filling in for Jorgenson) and Worm. (OConnor Dep. at 202-03; Pl.s Ex. 28.)
10
(Def.s Ex. W.) On October 12, 2005, OConnor asserts that Lehnen (1) yelled at her
about a run out situation (id. at 199-200); (2) aggressively grabbed labels out of her
hand (Pl.s Ex. 18 at 6; OConnor Dep. at 277-78); and (3) gestured at her with his staple
gun after she had mistakenly thought he was holding her staple gun, and yelled, What?
You think I would steal your staple gun. I dont need to steal. (Pl.s Ex. 18 at 6.)
Chris Rosentreter supervised OConnor from October 5 to October 15 when
Jorgenson was on vacation and out sick. (OConnor Dep. at 201, Jorgenson Dep. at 22-
24; Rosentreter Dep. at 10-11.) He observed that OConnor (1) never unloaded the semitrailers
and rail-cars that came in with new paper stock; (2) on numerous occasions, drove
her clamp truck in and out of the Corrugator area without carrying a roll; and (3) failed to
mark and tag the stubs. (Rosentreter Dep. at 23, 25-28.) Rosentreter did not prepare a
Weekly Progress Report, but did report these observations to Jorgenson. (Jorgenson Dep.
at 87; Rosentreter Dep. at 10-11, 23.) Jorgenson indicated that Rosentreter told him that
OConnor didnt have a clue, was confused, and was making mistakes. (Jorgenson
Dep. at 87.)
OConnor informed Rosentreter on the evening of October 12, 2005, that she
would not return to work because of the hostile work environment and her lack of
training. (OConnor Dep. at 215-16; Pl.s Ex. 18 at 7.) On October 13, 2005, she called
Zimmer and reported that the work environment was hostile and had escalated to the
point where she no longer felt safe. (Pl.s Ex. 18 at 7.) The next day, Zimmer, Pavek,
Simonson, and Tom Simek (union president) met with OConnor to address her concerns.
11
At the meeting, OConnor reiterated her previous complaints about the hostile work
environment and her lack of training. (Simonson Dep. at 18; Pl.s Ex. 18 at 7.)
Following the meeting, Zimmer, Simonson, Pavek, and Simek met with Poppler to
question him about the clamp-truck incident. (Zimmer Dep. at 43-45.) Poppler told
Zimmer that he did not intend to hit OConnors clamp truck, but was trying to squeak
through and accidentally ripped off the chain on OConnors clamp truck with his
wheels. ( Id. at 45, 50, 55.) Although Zimmer concluded that Poppler did not intend to
hit OConnors clamp truck, he did remind him of Temple-Inlands harassment-free
workplace policy and that he must follow plant rules and regulations. (Id. at 44-47, 54;
Poppler Dep. at. 32-33.)
VI. OConnors Termination
On October 18, 2005, Simonson, Zimmer, Pavek, Worm, and Kent Kimmell
(Regional Human Resources) discussed OConnors performance and status as a
probationary employee. (Simonson Dep. at 27-32.) They decided to terminate
OConnors employment because of her poor performance and inability to perform all of
the functions of a Roll Handler. ( Id. at 31-32.)
On October 19, 2005, Simonson asked Jorgenson and Worm to notify OConnor
of her termination, which they did. (Id. at 32; Jorgenson Dep. at 90; OConnor Dep. at
283-84.) The stated reason for her termination was job performance during her
probationary period. ( Id. at 31; Def.s Ex. N.)
On January 6, 2006, OConnor filed a charge of gender discrimination and
retaliation with the Equal Employment Opportunity Commission (EEOC). She
12
received a right-to-sue letter from the EEOC on September 21, 2006. On October 23,
2006, OConnor commenced the instant action.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St.
Paul, Dept of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must
view the evidence, and the inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. Graves v. Ark. Dept of Fin. & Admin., 229
F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116
(8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but
must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
ANALYSIS
In her Complaint, OConnor asserts claims for gender discrimination and
harassment (Count I) and retaliation (Count II) in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et. seq. (Title VII). Neither claim withstands
scrutiny.
13
I. Gender Harassment7
Because OConnor offers only indirect evidence of discrimination, the Court must
apply the McDonnell Douglas burden-shifting framework when analyzing her
employment discrimination claims. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800-04 (1973). Under McDonnell Douglas , OConnor must first establish a prima
facie case of gender harassment. To do so, she must show that (1) she belonged to a
protected group; (2) Temple-Inland subjected her to unwelcome harassment; (3) the
harassment was based upon gender; (4) the harassment was sufficiently hostile to affect
a term, condition, or privilege of her employment, and (5) Temple-Inland knew or should
have known of the harassment and failed to take remedial action. Turner v. Gonzales,
421 F.3d 688, 695 (8th Cir. 2005). If OConnor establishes a prima facie case, the
burden of production then shifts to Temple-Inland to proffer a legitimate,
nondiscriminatory reason for its action. If it does, the burden then shifts back to
OConnor to demonstrate that Temple-Inlands stated reason is a pretext for
discrimination (a cover for a discriminatory reason). Nonetheless, OConnor has the
ultimate burden of persuading the trier of fact that Temple-Inland intentionally
discriminated against her. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (the ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all time with the plaintiff.).
7 The Court notes that OConnor appears to allege gender discrimination and harassment as two
separate claims in her Complaint. In her response memorandum, however, she only argues that
Temple-Inland subjected her to harassment based upon her gender, which created a hostile work
environment. Therefore, the Court will analyze her claim as one for gender harassment.
14
Temple-Inlands position is that OConnors allegation of one isolated comment
by Dale Thompson -- that the Roll Handler position was not a job for a woman -- is
insufficient to establish a hostile work environment. (Def.s Mem. at 33.) It also argues
that OConnors other complaints of workplace conduct are frivolous and do not
constitute workplace harassment, and even if they did, there is nothing to suggest that
such actions were directed at OConnor because she is a woman. ( Id. at 34.)
In the Courts view, even if OConnor were able to prove that the alleged
harassment had been based upon her gender, it did not rise to a level sufficient to fulfill
the fourth element of a hostile-work-environment claim.8 Hostile work environment
claims are limited in nature, requiring a high evidentiary showing that the plaintiffs
workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victims employment and
create an abusive working environment. Vajdl v. Mesabi Acad. of KidsPeace, Inc.,
484 F.3d 546, 550 (8th Cir. 2007) (internal quotation omitted). For harassment to affect
a term, condition, or privilege of employment, it must be both subjectively offensive to
the employee and objectively offensive such that a reasonable person would consider it
to be hostile or abusive. Williams v. Missouri Dept of Mental Health, 407 F.3d 972,
975 (8th Cir. 2005) (internal citations omitted).
8 OConnor also fails to establish the fifth element of her prima facie case because Temple-
Inland took prompt remedial action. The record shows that Temple-Inland provided her with
additional training when she complained about her lack of training, conducted investigations
regarding her complaints of harassment, and assured her that Dale Thompsons comments were
not the opinion of management. (See Zimmer Dep. at 28, 45, 50, 53, 55; Simonson Dep. at 16.)
15
Here, OConnor points to what she characterizes as a pattern of harassing
behavior. (Pl.s Oppn Mem. at 44-47.) In particular, she points to (1) Dale
Thompsons comments that Temple-Inland was trying to push her out because it never
had a woman in the Roll Handler position and that this position was not a job for a
woman; and (2) Popplers comment that she was never going to learn the job. ( Id. at
43-44.) OConnor also asserts that the Operators purposely slowed down production
on several occasions and that on one occasion Lehnen: (1) screamed at her, (2) allegedly
grabbed papers out of her hand, and (3) pointed his staple gun at her after she
mistakenly thought he had taken her staple gun. Finally, OConnor asserts that Poppler
intentionally hit her clamp truck. ( Id. at 44-45.)
Viewing the record in the light most favorable to OConnor, no reasonable person
would consider the alleged harassment to be hostile or abusive. Williams, 407 F.3d at
975. Indeed, [a]llegations of a few isolated or sporadic incidents will not suffice; rather,
the plaintiff must demonstrate the alleged harassment was so intimidating, offensive, or
hostile that it poisoned the work environment. Carpenter v. Con-Way Cent. Express,
Inc., 481 F.3d 611, 618 (8th Cir. 2007) (citations omitted). First, the isolated comments
made by Dale Thompson and Poppler do not poison the work environment and are not
sufficient to be actionable. See Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653
(8th Cir. 2003) (occasional boy, black boy and other racial comments not sufficient);
see also Carpenter, 481 F.3d at 618 (To be actionable, the conduct complained of must
be extreme in nature and not merely rude or unpleasant.). Moreover, OConnor
indicated that Dale Thompson made his comments in a very kind way, and Simonson
16
told OConnor that what Dale Thompson said was not the opinion of management and
that they expected her to succeed in her position. (Pl.s Ex. 15; Simonson Dep. at 16.)
Furthermore, OConnors other complaints of alleged harassment were short-lived
and infrequent; the complaints appear to be the type of isolated incidents, teasing, and
offhand comments which, while offensive, do not reach the level of harassment. See
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ([S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.) (internal quotations
omitted)). The United States Supreme Court has made it abundantly clear that the
standards for judging hostility are sufficiently demanding to ensure that Title VII does
not become a general civility code. Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030,
1038 (8th Cir. 2005) (citing Faragher, 524 U.S. at 778). In particular, Lehnens alleged
behavior, though undeniably rude, was not so severe that a reasonable person would find
that the terms or conditions of her work environment had been altered.9 Accordingly, the
behavior alleged by OConnor is insufficient to state a prima facie showing that her
workplace was permeated with discriminatory intimidation, ridicule, and insult.
Duncan v. Gen. Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002) (citation omitted).
9 The Eighth Circuit cases upholding hostile-work-environment liability have invariably involved
far more hostile or abusive circumstances than presented here. See, e.g., Delph v. Dr. Pepper
Bottling Co. of Paragould, Inc., 130 F.3d 349, 352 (8th Cir. 1997) (intimidation plus a steady
barrage of racial name-calling); Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997)
(physical sexual advances followed by eight months of intimidating snickers); Ways v. City of
Lincoln, 871 F.2d 750, 755 (8th Cir. 1989) (evidence included fifty examples of racial
harassment); Hall v. Gus Constr. Co., 842 F.2d 1010, 1012 (8th Cir. 1988) (persistent verbal
abuse and offensive physical touching); Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th
Cir. 1983) (more than a few isolated incidents of harassment must have occurred).
17
II. Retaliation
OConnor next claims that Temple-Inland retaliated against her after she reported
claims of gender harassment. To establish a prima facie case of retaliation, OConnor
must show that (1) she participated in a protected activity, (2) that Temple-Inland took
adverse employment action against her, and (3) that a causal connection exists between
the two. Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1036-37 (8th Cir. 2005). If
OConnor establishes a prima facie case, t he burden of production then shifts to Temple-
Inland to show a legitimate, nondiscriminatory reason for its action. If it does so,
OConnor must then establish that the proffered nondiscriminatory reason was pretext.
Temple-Inland asserts that OConnor has failed to establish the third element of
her prima facie case of retaliation because she has not presented evidence of a causal link
between her termination and her protected activity. The Court need not opine on that
issue, because even if OConnor had established a prima facie case of retaliation, she
cannot show that Temple-Inlands proffered reason for terminating her employment her
poor performance during her probationary period - was pretext.
In order to show pretext, OConnor must present evidence that (1) creates a fact
issue as to whether Temple-Inlands proffered reason is pretextual and (2) creates a
reasonable inference that it acted in retaliation. Logan v. Liberty Healthcare Corp., 416
F.3d 877, 880 (8th Cir. 2005). In attempting to satisfy this burden, OConnor attempts to
show pretext by showing that Temple-Inlands proffered reason has no basis in fact, that
Temple-Inland changed its explanation for why it fired her, and that it deviated from its
policies. Upon close scrutiny, however, her attempts fail.
18
OConnor first argues that Temple-Inlands proffered reasons during the litigation
were false. (Pl.s Oppn Mem. at 35.) In particular, she argues that Temple-Inland
enhanced the stated reason of poor job performance to include: (1) her ability to safely
migrate through the roll room and keep up with production, and (2) her failure to meet
the minimum weekly score of 50 during her probationary period. (Id.) With respect to
safety, OConnor asserts that Jorgenson testified that safety was an aspect of the job she
did well. Id. at 40. But, Jorgenson and Lehnen also testified that they observed
OConnor operating the clamp truck in an unsafe manner. (Id. at 46; Lehnen Dep. at 22,
35-37.) With respect to production, OConnor asserts that she was able to keep up with
production as evidenced by the fact that she was feeding the entire machine alone as of
September 29, 2005. (Pl.s Oppn Mem. at 35.) The record, however, contradicts this
assertion. Indeed, OConnor acknowledged that she struggled to keep up with the
increased workload and the Operators had expressed their frustration with regards to her
performance, especially her failure to tag and put away all the stub rolls. (Pl.s Ex. 18 at
3; OConnor Dep. at 180.) Furthermore, Jorgenson testified that OConnor was not
working quickly enough and her Progress Reports also indicated that she needed to work
on her speed. (Jorgenson Dep. at 46; Pl.s Exs. 23-25.)
With respect to performance, OConnor argues that Temple-Inlands decision to
stop giving her Progress Reports on October 5th means that it had determined she was
qualified for the position. (Pl.s Oppn Mem. at 36-37.) This argument is without merit.
First, OConnor did not receive Progress Reports after October 5th because her
supervisor, Jorgenson, who prepared all of her other Progress Reports, was out sick and
19
on vacation from October 5th 15th. Rosentreter supervised OConnor during this time
period and reported to Jorgenson that OConnor didnt have a clue, was confused,
and was making mistakes. (Jorgenson Dep. at 87.) OConnors Progress Reports also
show that she could not perform all of the duties of the Roll Handler position because she
was still shaky on the clamp truck and did not always mark and tag the stubs. (Pl.s
Ex. 25.) Moreover, her coworkers complained to Jorgenson that she was unable to
perform the Roll Handler job duties and were frustrated because she was hampering their
work. (David Thompson Dep. at 25, 27, 30-31.)
OConnor next argues that Temple-Inland changed its explanation for why it fired
her. She claims that Jorgenson told her that she was fired because of her low production
that occurred earlier that day or for a period of time.10 (Pl.s Oppn Mem. at 32.)
Jorgenson, however, does not remember what he specifically told OConnor when he
notified her of her termination. (Jorgenson Dep. at 90.) Nonetheless, the decision to
terminate OConnor was made the day before by Simonson, Worm, Zimmer, Pavek, and
Kimmell. (Simonson Dep. at 27-32.) Jorgenson was simply asked by Simonson to
inform OConnor that Temple-Inland had decided to terminate her employment.
Furthermore, OConnor fails to show how the conflicting explanations suggest that her
termination was somehow motivated by retaliation. Indeed, OConnor does not dispute
10 OConnor argues that the Kiwi Production Reports, which document production downtime,
fail to show that she caused any significant downtime. (Pl.s Oppn Mem. at 30, 33.) Temple-
Inland, however, did not rely on these reports in making its decision to terminate OConnor.
(Def.s Reply Mem. at 3; Zimmer Dep. at 62.) Furthermore, Jorgenson testified in his deposition
that he observed OConnor cause production downtime, and on numerous occasions, Worm and
Pavek alerted him to the production issues caused by OConnor. (Jorgenson Dep. at 28-31.)
20
that the downtime occurred on that day, but merely asserts that Worm did not tell her
about the new production run. (OConnor Dep. at 285-87.) Yet, it is the responsibility of
a Roll Handler to determine which rolls of paper are needed and when by looking at the
run schedule. (OConnor Dep. at 164-65; Poppler Dep. at 13.) Additionally, there is no
dispute that OConnor struggled to keep up with the increased workload and needed to
work on her speed. (Pl.s Ex. 18 at 3, 25; OConnor Dep. at 180; Jorgenson Dep. 28-31.)
OConnor also argues that Temple-Inlands failure to investigate her complaints of
gender harassment is evidence of pretext. (Pl.s Oppn Mem. at 27.) The record,
however, belies her argument. When OConnor first complained about her lack of
training and Dale Thompsons comments, the record clearly shows that Temple-Inland
provided her with additional training and assured her that Dale Thompsons comments
were not the opinion of management and that they expected her to succeed in her
position.11 (Zimmer Dep. at 28; Simonson Dep. at 16.) When OConnor complained
about the clamp-truck accident with Poppler and Lehnens rude behavior towards her, the
record shows that Temple-Inland conducted an investigation regarding the accident and
spoke to both Poppler and Lehnen. (Zimmer Dep. at 45, 50, 53, 55.)
OConnor also asserts that Temple-Inland failed to follow its normal practices for
terminating a probationary employee. (Pl.s Oppn Mem. at 41.) It is her position that a
11 The record is unclear if Temple-Inland talked to Dale Thompson about his comments. Even if
Temple-Inland failed to conduct an investigation of this isolated incident, OConnor has
proffered no evidence that he was involved in the decision to terminate her. See Ghane v. West,
148 F.3d 979, 982 (8th Cir. 1998) (comment insufficient to show pretext because there is no
evidence that the remark was either made by a decision maker or made in connection with the
decisional process.).
21
supervisor is supposed to talk to a struggling employee before the company fires that
individual. ( Id.) OConnor asserts that the last word she received from her supervisor
was that she had very few problems and received a rating of 42.12 (Id.) In some
instances, an employers failure to follow its internal policies can be evidence of pretext.
See, e.g., Russell v. TG Mo. Corp., 340 F.3d 735, 746 (8th Cir. 2003). Here, however,
OConnor has failed to identify any particular policy or procedure that required Temple-
Inland to talk to a struggling employee before terminating that individual. Furthermore,
OConnor fails to address the fact that she did not achieve the minimum required score of
50 in order to be retained as a permanent employee and that her Progress Reports
documented several performance deficiencies.13
Finally, OConnor asserts that Temple-Inland deviated from its practice by not
providing her with Progress Reports for two weeks in October. (Pl.s Oppn Mem. at
42.) She argues t hat Temple-Inland essentially accelerated her probationary period by
terminating her for not attaining a minimum score of 50 within that accelerated time
period. ( Id.) This argument misses the mark because it fails to address the fact that
Jorgenson was not working during this time period. Moreover, Rosentreter spoke to
OConnor about her performance deficiencies and reported his observations to Jorgenson.
12 OConnors assertion is contradicted by the Progress Report itself, which noted that she still
had to work on speed and getting all of the stub rolls tagged and put away and that she still did
not understand what is running and the end of run process. (Pl.s Ex. 25.)
13 The Court notes that Temple-Inland retained OConnor almost through the end of her
probationary period. Notably, between June 20, 2005, and November 1, 2005, Temple-Inland
hired 33 new production employees (29 male and 4 female), and ultimately terminated 11 of the
probationary employees (10 male and 1 female, OConnor) for failing to successfully complete
their probationary periods. (Simonson Aff. at 5-6.)
22
(Rosentreter Dep. at 22-23, 25-29; Jorgenson Dep. at 87.) The fact that Rosentreter did
not provi de her with a Progress Report for those two weeks does not create a reasonable
inference that she was retaliated against. Managers are expected to demonstrate a high
level of independence and initiative and although OConnor may believe that Temple-
Inland should have provided her with a formal Progress Report, an employers failure to
inform an employee of what is expected of [her] is not evidence of discriminatory
animus. Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1108 (8th Cir. 1998).
While OConnor has questioned Temple-Inlands management style, she does not have a
viable Title VII claim. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th
Cir. 1995) ([T]he employment-discrimination laws have not vested in the federal courts
the authority to sit as super-personnel departments reviewing the wisdom or fairness of
the business judgments made by employers, except to the extent that those judgments
involve intentional discrimination.). Accordingly, summary judgment for Temple-
Inland is warranted on OConnors retaliation claim.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendant Temple-Inlands Motion for Summary Judgment (Doc. No.
27) is GRANTED and Plaintiff Colleen OConnors Complaint (Doc. No. 1) is
DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 7 , 2008 s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
 

 
 
 

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