Al-Zubaidy v. Tek Industries, Inc.
| Decision Date | 11 May 2005 |
| Docket Number | No. 03-3457.,03-3457. |
| Citation | 406 F.3d 1030 |
| Parties | Kamal AL-ZUBAIDY, Appellant, v. TEK INDUSTRIES, INC.; Barbara Unger, in her official and individual capacities, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bassel El-Kasaby, argued, Omaha, NE, for appellant.
Robert F. Rossiter, Jr., argued, Omaha, NE (Russell A. Westerhold, on the brief), for appellee.
Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges.
Kamal Al-Zubaidy (Al-Zubaidy), an inmate at the Nebraska State Penitentiary (Penitentiary), filed a civil rights action against TEK Industries (TEK) and Barbara Unger (Unger), presenting nine causes of action under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-2000e-17; the Nebraska Fair Employment Practice Act (NFEPA), Neb.Rev.Stat. §§ 48-1101-48-1126; federal civil rights statutes, 42 U.S.C. §§ 1981, 1983; and Nebraska's civil rights statute, Neb.Rev.Stat. § 20-148. Al-Zubaidy claims he was discharged and harassed based on his race, sex, religion and national origin. Al-Zubaidy also asserts he was subjected to unlawful retaliation. The district court1 granted summary judgment in favor of TEK and Unger. We affirm.
Al-Zubaidy is a male Shiite Muslim of Iraqi descent serving a prison sentence for first-degree assault, second-degree assault, and use of a weapon to commit a felony. See State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362, 367 (2002). TEK is a private corporation with a manufacturing facility in Fremont, Nebraska, and another manufacturing facility located at the Penitentiary in Lincoln, Nebraska. Under an agreement with Cornhusker State Industries, acting under the authority of the Nebraska State Department of Corrections, TEK offers private venture employment to approximately 110 inmates at the Penitentiary. TEK pays the inmates at least minimum wage, while inmates in other jobs receive between $1.50 and $2.25 per day. TEK employs managers, who are not inmates or Penitentiary employees, to supervise the inmates. However, prison guards are present at all times in TEK's workplace. Unger is TEK's Production Manager at the facility located at the Penitentiary.
In February 1999, TEK hired Al-Zubaidy to work part-time in TEK's Penitentiary die shop. The die shop produces, and eventually distributes, materials used in educational products for schools and for the arts-and-crafts industry. Al-Zubaidy's direct supervisor was Unger. During 1999, Al-Zubaidy had no problems with how Unger treated him. In March 2000, Unger gave Al-Zubaidy "a pretty good evaluation," which resulted in a forty-five cent per hour raise. Al-Zubaidy signed the evaluation in June 2000. Al-Zubaidy received another performance evaluation in March 2001, which resulted in another pay raise.
In March 2001, Al-Zubaidy's relationship with Unger began to deteriorate. Al-Zubaidy wrote TEK's president complaining Unger did not like certain workers, including Al-Zubaidy, and Unger did not treat these workers fairly, including white and non-Muslim workers. On March 26, Al-Zubaidy met with Unger and another supervisor to discuss Al-Zubaidy's complaint that Unger had laughed and told another employee, "I didn't understand a single word [Al-Zubaidy] just said." Unger apologized to Al-Zubaidy for the incident. Al-Zubaidy admittedly does not speak English very well, which requires people to ask that he repeat himself. In addition, Al-Zubaidy acknowledges TEK's work space at the Penitentiary is loud, and "sometimes it's hard to hear someone there because it's so loud." Al-Zubaidy did not make any other complaints at this meeting.
On May 2, Al-Zubaidy filed a charge of discrimination with the Nebraska Equal Opportunity Commission (NEOC), alleging discrimination based on race, color, sex, religion and national origin. In this administrative charge of discrimination, Al-Zubaidy made a number of allegations: (1) in June 2000, Unger told another inmate, "don't listen to dumb ass [Al-Zubaidy], he thinks he knows everything"; (2) in August 2000, Unger sprinkled water on Al-Zubaidy, and said, "bless you my child"; (3) in November 2000, Al-Zubaidy jokingly told another employee TEK was going to serve "boiled eggs" for the holiday meal, which prompted Unger to say, "did you hear what [Al-Zubaidy] just said? he said boiled dick"; (4) in January 2001, Unger told Al-Zubaidy to "go to the bathroom... to clean [his] underwear" after a near collision in the workplace; (5) in March 2001, Unger told another employee she "didn't understand a single word [Al-Zubaidy] just said"; and (6) Unger tried to get Al-Zubaidy discharged.
In August 2001, Unger promoted Al-Zubaidy to the skilled position of die maker. Even though Al-Zubaidy failed the first test for this position, which usually eliminates the opportunity to work as a die maker, Unger allowed Al-Zubaidy to retake the test, which he passed.
Also in August 2001, the NEOC dismissed Al-Zubaidy's discrimination charge. Noting "[t]he Nebraska Attorney General has issued opinion # 99-027 that prison laborers are not employees under the [NFEPA]," the NEOC administratively closed the case because it lacked jurisdiction over Al-Zubaidy's charge.2 The Equal Employment Opportunity Commission also dismissed Al-Zubaidy's charge, and issued its Notice of Suit Rights.
After filing a Complaint and an Amended Complaint in the district court, Al-Zubaidy filed a twenty-three page (excluding attachments) pro se Second Amended Complaint for Civil Rights Violations against TEK and Unger, presenting nine causes of action. Al-Zubaidy alleged TEK and Unger violated Title VII, the NFEPA, and federal and state civil rights statutes. Al-Zubaidy claimed TEK and Unger intentionally discriminated against him based on his race, sex, religion and national origin. Al-Zubaidy's theories of recovery included discriminatory discharge, unlawful harassment and retaliation. An inmate laborer filed an affidavit claiming Unger told him in April 2001 "to report to our Camel Jockey, he will show you how to ride the Camel." Another inmate laborer filed an affidavit swearing Unger set up Al-Zubaidy "by making it appear as though he was responsible for missing tools[, even though] Unger knew that the tools belonged to someone else." Another inmate submitted an affidavit stating "a homemade key was alleged to have been found" on October 23, 2001, and attributed to Al-Zubaidy. As a result of the discovery of this contraband, the Penitentiary placed Al-Zubaidy in segregation, which resulted in Al-Zubaidy's discharge from TEK for excessive absences. Al-Zubaidy admitted he does not have any evidence that Unger set him up.
Granting summary judgment to TEK and Unger on all claims, the district court dismissed Al-Zubaidy's Second Amended Complaint with prejudice. First, the district court relied on the Nebraska Attorney General's opinion to hold Al-Zubaidy's "claims pursuant to NFEPA must be dismissed because under Nebraska law, prison laborers are not `employees' entitled to redress under NFEPA." Second, the district court dismissed Al-Zubaidy's discriminatory discharge claims because "the summary judgment record contains no evidence on which a jury could reasonably find that [Al-Zubaidy]'s race, color, religion, sex, or national origin played any part in the decision to terminate [Al-Zubaidy]'s employment." Finally, the district court dismissed Al-Zubaidy's hostile work environment claims, concluding (1) most of the remarks made against Al-Zubaidy "bore no relation to [his] gender, religion, race or national origin"; and (2) "the alleged harassment `was not so severe or pervasive as to alter a term, condition, or privilege of [Al-Zubaidy's] employment.'"
Al-Zubaidy appeals the district court's grant of summary judgment to TEK and Unger. Al-Zubaidy contends the district court erroneously dismissed the (1) discriminatory discharge claims; (2) hostile work environment claims; (3) derivative civil rights claims; and (4) NFEPA claims. Al-Zubaidy does not appeal the district court's dismissal of Al-Zubaidy's retaliation claims, and his attorney acknowledged at oral argument Al-Zubaidy has abandoned those claims.
We review de novo the district court's grant of summary judgment to TEK and Unger. Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003). Summary judgment is proper if the evidence, viewed in the light most favorable to Al-Zubaidy and giving him the benefit of all reasonable inferences, shows there are no genuine issues of material fact and TEK and Unger are entitled to judgment as a matter of law. See id.; Fed.R.Civ.P. 56(c). "Evidence, not contentions, avoids summary judgment." Mayer, 318 F.3d at 809.
Title VII prohibits an employer from discharging an individual "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Al-Zubaidy claims TEK did not discharge him because of his excessive absences, but instead discharged him based on his race, sex, religion and national origin.
Al-Zubaidy's discriminatory discharge claims must be analyzed under the McDonnell Douglas burden-shifting framework. Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 656 (8th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under this framework, Al-Zubaidy must establish a prima facie case of discrimination by showing (1) he is a member of a protected class, (2) he was qualified for his position with TEK, and (3) despite being qualified, he was discharged. Id. If Al-Zubaidy successfully establishes his prima facie case, a rebuttable presumption of discrimination arises. Id. At this point, the burden of production shifts to TEK and Unger to articulate a legitimate,...
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