Jenkins v. Wal-Mart Stores, Inc., C 93-3069.

Citation910 F. Supp. 1399
Decision Date26 November 1995
Docket NumberNo. C 93-3069.,C 93-3069.
PartiesNelson S. JENKINS, Plaintiff, v. WAL-MART STORES, INC., Defendant.
CourtUnited States District Courts. 8th Circuit. Northern District of Iowa

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Craig M. Byram and Gary E. Leonard, Alderson, Ondov, Leonard, Sween & Rizzi, P.A., Austin, Minnesota, for Plaintiff Nelson Jenkins.

Robert S. Kinsey, III, Brown, Kinsey & Funkhouser, Mason City, Iowa, for Defendant Wal-Mart Stores, Inc.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
                                             TABLE OF CONTENTS
                  I. INTRODUCTION AND PROCEDURAL BACKGROUND ................................1406
                 II. STANDARDS FOR SUMMARY JUDGMENT ........................................1407
                III. FINDINGS OF FACT ......................................................1409
                     A. Undisputed Facts ...................................................1409
                     B. Disputed Facts .....................................................1411
                 IV. LEGAL ANALYSIS ........................................................1413
                     A. Jenkins' Claim As a Continuing Violation ...........................1413
                        1. "Series of acts" type of continuing violation ...................1415
                        2. "Discriminatory policy or system" as a continuing violation .....1415
                     B. Jenkins' Race Discrimination Claims ................................1417
                        1. Disparate treatment .............................................1417
                           a. The analytical framework for a disparate treatment claim .....1418
                           b. The prima facie case .........................................1420
                           c. Legitimate, non-discriminatory reason and pretext ............1421
                           d. Jenkins' disparate treatment claim under Title VII ...........1421
                           e. Jenkins' disparate treatment under Iowa Code Ch. 216..........1422
                        2. Jenkins' disparate impact claim .................................1423
                     C. Jenkins' Defamation Claim ..........................................1425
                        1. Defamation and defamation "per se" ..............................1425
                        2. Qualified privilege .............................................1426
                        3. Jenkins' defamation claim .......................................1427
                  V. CONCLUSION ............................................................1427
                

BENNETT, District Judge.

This litigation involves the issue of whether an employer's repeated denial of promotions throughout seven years of plaintiff's employment and plaintiff's allegedly involuntary termination was a pretextual mask disguising racially discriminatory promotion procedures. Defendant has moved for summary judgment, claiming plaintiff's race discrimination claims are time-barred because any alleged denial of promotions occurred beyond the 180-day limitation period under Title VII and Iowa Code Chapter 216. However, plaintiff alleges defendant's promotion policy created a continuous violation, thus tolling the 180-day limitation period. Failing its procedural defense, defendant asserts the familiar incantation that plaintiff cannot establish a prima facie case. Plaintiff, in turn, alleges he can establish a prima facie case regarding his race discrimination claims under both disparate impact and disparate treatment theories of race discrimination. Lastly, defendant moves for summary judgment regarding plaintiff's common-law defamation claim on the grounds that any allegedly defamatory statements were made under a qualified privilege. In response, plaintiff asserts these statements were made with a total lack of good faith and thus, the defense of qualified privilege is inapplicable.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

On October 15, 1993, plaintiff Nelson Jenkins, an African-American male, filed a complaint in this court, alleging three causes of action against his former employer, defendant Wal-Mart Stores ("Wal-Mart"). In his first cause of action, Jenkins alleges Wal-Mart discriminated against him based on his race, demoting him, failing to promote him, and generally engaging in discriminatory employment practices ultimately resulting in his termination in violation of 42 U.S.C. § 2000e et seq.. The second count of his complaint states parallel race and age discrimination claims against Wal-Mart pursuant to Iowa Code § 601A.6(1)(a) (now Iowa Code § 216.6(1)(a)), describing the same discriminatory employment practices and consequences. In count three of his complaint, Jenkins asserts a common-law defamation claim against Wal-Mart, arguing supervisors at Wal-Mart had made and published false statements and innuendo about Jenkins, including statements that Jenkins was a thief and a liar, which harmed his reputation and are defamatory per se. Jenkins seeks damages for back-pay, future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, along with punitive damages, costs, disbursements, and attorney fees. As precursors to this lawsuit, Jenkins filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and received an administrative release from the EEOC on October 1, 1993. In addition, Jenkins filed a complaint with the Iowa Civil Rights Commission ("ICRC") and received an administrative release from the ICRC on September 10, 1993.

Wal-Mart filed an answer to Jenkins' complaint on November 22, 1993, generally denying the allegations contained in all three counts. Also on November 22, 1993, Wal-Mart filed a motion to dismiss and/or motion for judgment on the pleadings as to Count Two of Jenkins' complaint. Count Two referred to a claim for age discrimination; however, Wal-Mart argued Jenkins had failed to exhaust his administrative remedies regarding any age discrimination claims. On December 23, 1994, this court granted Wal-Mart's motion, dismissing Jenkins' state law age discrimination claims found in Count Two of the complaint pursuant to Fed. R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

On March 13, 1995, Wal-Mart filed a motion to amend its answer, seeking to include two affirmative defenses. In its first affirmative defense, Wal-Mart asserts Jenkins failed to mitigate his damages concerning all three counts in the complaint. Regarding Count Three of the Complaint, Jenkins raised a second affirmative defense, arguing that all communications by Wal-Mart's managerial representatives are not actionable because of a qualified privilege. On March 20, 1995, Jenkins resisted this motion, and Wal-Mart, in turn, responded to Jenkins' resistance on March 27, 1995. However, the parties filed a joint application for order on April 10, 1995, agreeing Wal-Mart's motion to amend its answer should be granted. Subsequently, on April 26, 1995, Chief Magistrate Judge John A. Jarvey granted Wal-Mart's motion to amend its answer.

Wal-Mart filed a motion for summary judgment on July 24, 1995, along with a brief supporting its motion and a statement of material facts not in dispute. On August 7, 1995, Jenkins filed a statements of facts in dispute and memorandum of law, resisting Wal-Mart's motion for summary judgment. Having reviewed the procedural background of this case, the court turns next to the standards for summary judgment.

II. STANDARDS FOR SUMMARY JUDGMENT

The Eighth Circuit Court of Appeals recognizes "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years "motion for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Wabun-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir. 1992).

The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part:

Rule 56. Summary Judgment

(b) For Defending Party. a party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party's favor as to all or any part thereof.
(c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)).1 A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, here Jenkins, and give him the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654,...

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