Donathan v. Oakley Grain, Inc.

• Decision Date: 28 June 2017
• Docket Number: No. 15-3508,15-3508
• Citation: 861 F.3d 735
• Parties: Shana D. DONATHAN, Plaintiff–Appellant v. OAKLEY GRAIN, INC. ; Bruce Oakley, Inc.; Dennis Oakley, Defendants–Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

861 F.3d 735

Shana D. DONATHAN, Plaintiff–Appellant

v.OAKLEY GRAIN, INC. ; Bruce Oakley, Inc.; Dennis Oakley, Defendants–Appellees

No. 15-3508

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2016

Filed: June 28, 2017

Rehearing and Rehearing En Banc Denied August 10, 2017

Counsel who presented argument on behalf of the appellant was Timothy A Steadman, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; John T Holleman, of Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Penny Collins Choate, of Searcy, AR.

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Shana Donathan appeals the district court's adverse grant of summary judgment on her employment claim alleging retaliatory termination. Because a reasonable jury could conclude her protected action was the but-for cause of her termination, we reverse the judgment of the district court.

I. Background

Defendant Oakley Grain, Inc., a wholly owned subsidiary of Defendant Bruce Oakley, Inc., operates grain facilities in Missouri and Arkansas. Defendant Dennis Oakley is president of both companies. Charlie Porter manages two of Oakley Grain's facilities, the Yellow Bend and Pendleton facilities.

Oakley Grain hired Donathan in August 2010 to work at the Yellow Bend facility in Arkansas City, Arkansas. Donathan's initial duties included various tasks, primarily answering phones and weighing and grading grain. Shortly after Donathan was hired, another employee quit and Donathan's duties expanded to include payroll functions. When needed, for example if Yellow Bend closed due to flooding or if Pendleton was short staffed, Donathan would report to the Pendleton facility. Throughout her employment, Donathan's work occurred primarily indoors in an office or at the indoor controls of remotely controlled grain-measuring equipment. Workers at Yellow Bend, however, were expected to serve multiple functions, and she occasionally worked outdoors around grain elevators or barges. In 2011, 2012, and 2013, Donathan received raises. Porter characterizes Donathan as a good employee with a good work ethic, and the record contains no evidence of poor reviews, prior discipline, or anticipated discipline.

Donathan learned that her brother, also an Oakley Grain employee, had received "harvest and safety bonuses" as an employee at the Pendleton facility. Donathan understood generally that other employees received such bonuses. On Thursday, January 23, 2014, Donathan sent an email to Dennis Oakley containing a letter detailing her history with the company, complaining about the fact that she had not received bonuses, and complaining that new employees she was required to train were starting at higher rates of pay than her. Regarding bonuses, she wrote, "I see no difference in my position and the ones performed by the grain department at Pendleton for example except the fact that I am female." It appears undisputed that Oakley Grain's bonus policy treated outdoor workers as eligible for safety bonuses and workers at profitable facilities as eligible for harvest bonuses. Donathan argued in her letter that her duties included outdoor work such that she should have been bonus eligible. Defendants assert in this case that the Yellow Bend facility has never been profitable and that Donathan was not an outdoor worker.

Dennis Oakley forwarded the email to Porter about ten minutes after Donathan sent the email. Dennis Oakley then called Porter who had not yet read the email. After Porter took a moment to read Donathan's complaint, the men discussed the complaint. Porter asserts that, during the phone call, he told Dennis Oakley he was going to lay off employees to save money after finishing the intake of corn. According to Porter's deposition in this case, the Yellow Bend facility was to receive the final truckloads of corn from an outstanding order; Porter expected to complete that order soon; and a work slowdown was anticipated following completion of that order.

Approximately two hours later, still on January 23, Porter forwarded the email to an employee named Fletcher Calvert, a grain merchandiser for Oakley Grain at a different facility. Calvert almost immediately forwarded the email to J.O. Norman, an operations manager and merchandiser for Oakley Grain at a different facility. Calvert and Norman had no supervisory role over Donathan and generally did not work with Donathan. During depositions in this case, Porter denied knowledge as to why he had sent the email to Calvert or why Calvert would have sent the email to Norman. Donathan stated the atmosphere at work changed after she sent her email.

On the morning of Friday, January 31, 2014, eight days after Donathan sent her email to Dennis Oakley, Oakley Grain terminated the employment of five workers at Yellow Bend, including Donathan. Porter was not present on the morning of January 31; rather, he prepared typed notices and instructed another employee to deliver the notices. The notices thanked the terminated employees for their service, stated the terminations were attributable to a lack of work, and indicated the company hoped it could employ the workers in the future. The notices did not instruct employees to work the remainder of the day nor did the notices instruct the employees to leave work immediately. Donathan's notice stated, "It is with regret that I inform you are being laid off from your position as a grader and weighier (sic) effective January 31, 2014 ."¹ (emphasis added). Donathan left after receiving the notice, but the other four affected workers remained at the facility for the rest of the day.

It is undisputed that, in prior years, Oakley Grain had laid off seasonal, non-office workers at Yellow Bend due to seasonal work demands. During Donathan's several years of employment, however, Oakley Grain had never laid off Donathan. Further, the woman who preceded Donathan in her position similarly had not been terminated with seasonal workers.

Of the five employees terminated on January 31, three were temporary outside workers and two were non-temporary or "regular" workers: Donathan and plant supervisor Doug Wilson. Oakley Grain admits it terminated Wilson at least in part due to performance concerns. Porter stated Wilson was a good worker, but did not possess the skills to serve in the particular maintenance-related job for which he was hired. Oakley Grain does not suggest it terminated Donathan for performance reasons. In a note to Dennis Oakley, Porter reported letting Wilson and Donathan go, but did not report letting the other three workers go. In response, Dennis Oakley stated, "laid off?" Porter responded, "Yes."

The following Monday, February 3, 2014, Oakley Grain hired back the three temporary outside workers. Oakley Grain also hired a replacement for Donathan, Maggie Fletcher. Fletcher was not licensed to weigh and grade grain and did not possess experience similar to Donathan's. Oakley Grain admits Fletcher issued grain receipts bearing Donathan's name and asserts the receipts bore Donathan's name because the company's computer system automatically generated the receipts and the system had not been updated.

Company emails, however, reveal employees discussing the fact that Fletcher actually forged Donathan's signature on handwritten grain slips and that Fletcher misspelled Donathan's name when doing so.² Fletcher remained continuously employed by Oakley Grain at the Yellow Bend facility at least through the date of Porter's deposition on July 27, 2015. The office position occupied by Donathan, therefore, was filled the first working day after Donathan's termination and remained filled thereafter.

Donathan filed an EEOC complaint, received a right-to-sue letter, and filed the present action. Donathan alleged wage discrimination and retaliation in violation of the Equal Pay Act, Title VII, and the Arkansas Civil Rights Act. The district court granted summary judgment on the discrimination claims, and Donathan does not appeal that ruling.

Regarding the retaliation claims, Defendants argued that Norman secured a new grain contract for delivery to Yellow Bend on the Saturday after Donathan's termination, thus creating a surprise new demand for labor at Yellow Bend. Defendants also argued the three seasonal laborers who had just been terminated were rehired, but Donathan was not rehired, because Donathan alone had failed to finish the workday on the Friday of the terminations. The district court concluded a jury would have to believe Defendants' version of the facts and granted summary judgment. Donathan appeals.

II. Discussion

We review a grant of summary judgment de novo, viewing the record in the light most favorable to the non-moving party. Gibson v. Geithner , 776 F.3d 536, 539 (8th Cir. 2015). Viewing the record in this light means drawing inferences in favor of the non-moving party where the evidence as a whole would permit a rational trier of fact to do so. Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) ("Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." (citation omitted)). The non-moving party, however, "may not rely on allegations or denials, but must demonstrate the existence of specific facts ... supported by ‘sufficient probative evidence [that] would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy.’ " Mann v. Yarnell , 497 F.3d 822, 825 (8th Cir. 2007) (citation omitted) (quoting Gregory v. City of Rogers , 974 F.2d 1006, 1010 (8th Cir. 1992) (second alteration in original)).

"To survive a motion for summary judgment on a retaliation claim, [a plaintiff] must offer direct evidence of retaliation or create an inference of retaliation under the McDonnell Douglas burden-shifting framework." Hutton v. Maynard , 812 F.3d 679, 683 (8th Cir. 2016). "Direct...