Davis v. Kark-Tv, Inc.

• Citation: 421 F.3d 699
• Decision Date: 30 August 2005
• Docket Number: No. 04-3606.,04-3606.
• Parties: Lesa DAVIS, Plaintiff-Appellant, v. KARK-TV, INC., doing business as Morris Multimedia; Nexstar Broadcasting Inc., originally sued as KARK-TV, Inc., doing business as Nexstar Communications, Inc., doing business as KARK-TV, Inc. Defendant-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

421 F.3d 699

Lesa DAVIS, Plaintiff-Appellant, v. KARK-TV, INC., doing business as Morris Multimedia; Nexstar Broadcasting Inc., originally sued as KARK-TV, Inc., doing business as Nexstar Communications, Inc., doing business as KARK-TV, Inc. Defendant-Appellees.

No. 04-3606.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2005.

Filed: August 30, 2005.

COPYRIGHT MATERIAL OMITTED

Sheila F. Campbell, Little Rock, AR, for appellant.

William L. Davis, Dallas, TX, for appellee.

Michael S. Moore, Little Rock, AR, for appellee Morris Multimedia.

Before LOKEN, Chief Judge, HANSEN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Lesa Davis appeals the district court's¹ grant of summary judgment in favor of KARK-TV on her claims of race discrimination and retaliation under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, codified at 42 U.S.C. § 2000e, and the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark.Code. Ann. §§ 16-123-101 et. seq. We affirm.

I.

Lesa Davis was hired at KARK-TV in 1977 as a part-time camera operator. Shortly thereafter, she started to work for United Parcel Service ("UPS"). She remains employed by UPS. In 1979, Davis became a full-time camera operator at KARK-TV on the nightshift. Not long after, Davis began to perform audio duties and was promoted to Production Coordinator. As Production Coordinator, Davis was responsible for ordering supplies, booking time for clients to make commercials, and assisting the Production Manager. As part of this promotion she began to work the day shift.

In the mid-1980s Morris Multimedia purchased KARK-TV. Morris made a number of changes at KARK-TV including starting a morning program. Davis was assigned to do graphics and audio for that show. As part of a normal annual review, in 1994, Davis was offered a one percent raise. She informed the station that she did not want to receive a raise if it was only one or two percent. Although she accepted a two and one half percent raise later that year, she continued to refuse raises of two percent or less. In 1997, Troy Thompson became the Production Manager at the station. She repeated her request to not receive a raise of two percent or less to Thompson. She told Thompson that she did not want a raise of less than two percent because it would put her in a higher tax bracket and would reduce her take-home pay.

In 1998, KARK bought computers so the employees would be better able to produce graphics. By 2000, the station's news directors requested more graphics for their programs. Davis testified that, as a result of the increased demands from the news directors, it became a problem for her to complete all the graphics work and then produce the audio. In addition, Thompson believed he should be responsible for some of the tasks being done by Davis, such as scheduling personnel and commercial production. As a result, Thompson gave Davis a choice of producing the audio or generating the graphics for the morning show. Davis chose to focus exclusively on the graphics.

In August 2001, Rick Iler became the Director of News Operations at KARK-TV. In Spring 2002, the station moved into a new building. As part of the move, the station restructured its operations. Iler wanted graphics to become part of the news department because most of the graphics produced were news graphics. After the decision was made to move graphics from the production department to the news department, Iler met with Thompson and Carl Bruce, the station's General Manager, to determine how the move would impact employees. They determined that two employees, Trey Williams and Brian Stafford, should automatically be moved to the news department from the production department because they were graphic artists who were hired to build graphics.

The station decided to transfer two of the three remaining graphics personnel, who were known as character generators, to the news department. This group consisted of Lesa Davis, Kim Pearson, and Annette Gatlin. These employees operated the system and pulled up graphics for the director during the show. Although Thompson testified that he was in the process of training them to do more graphics, their primary job was to run the graphics machine during the news cast. Their jobs, as opposed to the graphic artist positions, were fairly interchangeable. In other words, on any given day a person might run a camera, audio, or operate a character generator. The station moved Annette Gatlin and Kim Pearson, white females, to the news department. Davis was assigned to run the teleprompter with the promise that she would be moved to camera operator on the morning show.

In June 2003, Nexstar Broadcasting Group, Inc. ("Nexstar") purchased KARK-TV. Nexstar brought in Perry Chester to be the General Manager. Chester evaluated the jobs at the stations and concluded that three positions should be eliminated: graphic artist, teleprompter, and website developer. The graphic artist and website developer employed by the station were terminated. Instead of terminating Davis, Chester offered her a position as a camera operator. Davis told Chester that the new position, which required working in the evening, created a conflict with her position at UPS. Chester advised Davis to check with UPS to see if an arrangement could be made to avoid any scheduling conflicts. Davis accepted the camera operator position and was given a raise as part of that transfer to $10.00 per hour. Davis worked the camera operator job for approximately two weeks and then took a leave of absence for foot surgery. She did not return to work at KARK-TV.

Davis filed a claim of race discrimination against Morris Multimedia for failing to promote her to the position of graphic artist with the Equal Employment Opportunity Commission ("EEOC"). She received a right-to-sue letter from the EEOC on August 26, 2002. Davis later filed a claim of race discrimination against Nexstar for failing to promote her to the position of graphic artist. She received a right-to-sue letter from the EEOC pertaining to this claim on April 29, 2004. Davis filed a lawsuit on November 22, 2002 against Morris Multimedia. She amended her complaint to add Nexstar as a defendant on November 25, 2003. Davis filed a second amended complaint on July 14, 2004 to add a claim of retaliation against Nexstar.

Davis alleges that Morris discriminated against her on the basis of race when she was not given an opportunity to interview for the for the position of graphic artist in the news department, a promotion, and for Morris's refusal to give her raises. Davis asserts that Nexstar discriminated against her when it failed to place her in the position of graphic artist or audio operator on the morning show when it purchased KARK-TV. She claims Nexstar's actions when it moved her from the morning news show to the evening show as a camera operator were in retaliation for her filing complaints against KARK-TV and amounted to a constructive discharge.

II.

We review de novo the district court's grant of summary judgment. Pope v. ESA Services, Inc., 406 F.3d 1001, 1006 (8th Cir.2005). Summary judgment is appropriate if there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The burden of demonstrating that there are no genuine issues of material fact rests on the moving party." Winthrop Resources Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir.2004). We review the evidence and the inferences that reasonably may be drawn from the evidence in "the light most favorable to the nonmoving party." Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).

We analyze Title VII disparate treatment claims, § 1981 claims, and ACRA claims in the same manner. Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n. 3 (8th Cir.2000) (noting that claims premised under the ACRA are analyzed in the same manner as Title VII claims); Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir.1997) (noting that the McDonnell Douglas analysis is applicable to Title VII disparate treatment and § 1981 claims). We employ the familiar McDonnell Douglas burden-shifting framework to conduct our analysis. Turner v. Honeywell Fed. Mfg. & Techs., LLC, 336 F.3d 716, 720 (8th Cir.2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). "Under the McDonnell Douglas framework, a presumption of discrimination is created when the plaintiff meets [her] burden of establishing a prima facie case of employment discrimination. A minimal evidentiary showing will satisfy this burden of production." Pope, 406 F.3d at 1006-07 (citations omitted). Once a plaintiff successfully establishes a prima facie case, the burden shifts to the employer to articulate "a legitimate, non-discriminatory reason for its adverse employment action." Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994). If the employer meets its burden, "the presumption of discrimination disappears, requiring the plaintiff to prove that the proffered justification is merely a pretext for discrimination." Pope, 406 F.3d at 1007. The plaintiff has the burden of persuasion at all times. Id.

A. Claim of Discrimination for Failure to Promote Against Morris

To establish a prima facie case of discrimination, Davis must show that: (1) she is a member of a protected class; (2) she met the legitimate expectations of her employer; (3) she suffered an adverse employment action; and (4) similarly situated employees that were not members of the protected class were treated differently. Gilmore, 319 F.3d at 1046.

Davis, as an African-American, is a member of a protected class. We will assume for purposes of this opinion, as the district court did, that Davis can establish the rest of her prima facie case against Morris, although we are by no means certain that she has done so....