Johnson v. Be & K Constr. Co.

• Decision Date: 22 June 2010
• Docket Number: No. 3:08-cv-00150.,3:08-cv-00150.
• Citation: 718 F.Supp.2d 988
• Parties: Regina Ann JOHNSON, Plaintiff, v. BE & K CONSTRUCTION COMPANY, LLC and Archer Daniels Midland Company, Defendants.
• Court: U.S. District Court — Southern District of Iowa

718 F.Supp.2d 988

Regina Ann JOHNSON, Plaintiff,

v.BE & K CONSTRUCTION COMPANY, LLC and Archer Daniels Midland Company, Defendants.

No. 3:08-cv-00150.

United States District Court, S.D. Iowa,Davenport Division.

June 22, 2010.

COPYRIGHT MATERIAL OMITTED.

John F. Doak, Katz Huntoon & Fieweger, Moline, IL, Jennifer J. Pomaranski, Timothy A. Wolfe, Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL, for Archer Daniels Midland Company.

Martha L. Shaff, Betty Neuman & McMahon PLC, Davenport, IA, for BE & K Construction Company, LLC.

Dorothy A. O'Brien, Attorney & Counselor Law, PLC, Davenport, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

ROBERT W. PRATT, Chief Judge.

Before the Court are a Motion for Summary Judgment filed by Defendant BE & K Construction Company, LLC (“BE & K”) and a Motion for Summary Judgment filed by Defendant Archer Daniels Midland Company (“ADM”). Clerk's Nos. 39 (BE & K), 40(ADM). Plaintiff Regina Ann Johnson (“Plaintiff”) filed a single resistance to both Motions (Clerk's No. 41) and BE & K and ADM each replied. Clerk's Nos. 45(ADM), 47 (BE & K). The matters are fully submitted.

I. FACTUAL AND PROCEDURAL BACKGROUND

ADM operates a corn processing plant in Clinton, Iowa (hereinafter “ADM plant”). ADM's Statement of Material Facts (hereinafter “ADM Facts”) ¶ 2. As part of the ADM plant, ADM maintains a warehouse that provides parts for machinery and equipment used elsewhere in the ADM plant. Id. ADM contracts with BE & K to provide workers for a variety of functions at the plant, including front counter staff for ADM's warehouse. Id. ¶ 3. BE & K personnel work in positions throughout ADM's plant. Id. ¶ 4.

Plaintiff, an African-American female, began working for BE & K in February 2006. Id. ¶ 6; BE & K's Statement of Facts (hereinafter “BE & K Facts”) ¶ 1. Initially, BE & K assigned Plaintiff to a labor crew at the ADM plant doing clean-up work. ADM Facts ¶ 7; BE & K Facts ¶ 3. In April 2006, however, BE & K offered Plaintiff a job working in the warehouse as a counter attendant. ADM Facts ¶ 8. Plaintiff's job duties as a warehouse counter attendant included taking orders over the phone, waiting on vendors, putting away stock, sweeping the floor, breaking down boxes, and performing inventory. BE & K Facts ¶ 5.

While Plaintiff was employed as a BE & K worker at the ADM plant, she had several complaints against her and received several verbal or written reprimands. On May 1, 2007, BE & K issued Plaintiff a written reprimand for “Unsatisfactory Attendance (Includes Late Arrivals/Early Quits).” ADM App. at 61. ¹ On October 30, 2007, BE & K issued Plaintiff a written reprimand for “Substandard Job Performance” on the basis that Plaintiff “was involved in argument w/ co-worker while on the job in front of other employees of BE & K and of client, ADM-raised voice.” Id. at 62. The co-worker, Tiffany Tracy (“Tracy”), a Caucasian BE & K employee, also received a written reprimand for the incident. ² ADM Facts ¶ 16. Plaintiff was also verbally reprimanded at some point in time for painting her fingernails while on duty at the warehouse counter. BE & K Facts ¶ 10.

In addition, over the course of her employment at the ADM plant, multiple complaints were made about Plaintiff's personal phone usage. Id. ¶ 12. Plaintiff admits that she gave out BE & K's telephone number as her work number, and that the BE & K office received multiple phone calls for Plaintiff from creditors and from Plaintiff's family members. ³ ADM Facts ¶¶ 20-21. In approximately May 2007, Maggie McNitt (“McNitt”), BE & K's office manager, warned Plaintiff that it was inappropriate for her to give out BE & K's office number for personal reasons. ⁴ Id. ¶ 22; BE & K Facts ¶ 14. ADM's warehouse interim lead person until February 2008, Pete Byers (“Byers”), also reported that he observed excessive phone usage by Plaintiff and by Tracy. ADM Facts ¶ 17. Byers specifically noted that Plaintiff frequently took personal calls, both while on break and while on duty, and that her breaks were often too frequent or too long. BE & K Facts ¶¶ 17, 19. Byers talked to both women about their phone usage and testified that he saw improvement from Tracy, but no improvement from Plaintiff. Id. ¶¶ 18-19; ADM App. at 124.

In January 2008, William Tanner (“Tanner”), an ADM employee, took over as warehouse supervisor. BE & K Facts ¶ 21. Tanner hired a new lead person, Brandi King (“King”), to replace Byers, but prior to leaving, Byers had expressed some concerns to Tanner about excessive phone usage by Plaintiff and Tracy. ADM App. at 84. When Tanner first started as warehouse supervisor, he began observing warehouse staff, starting with the front warehouse counter where Plaintiff worked. Id. During his observations, Tanner noticed for himself that Plaintiff and Tracy had “a problem, as far as phone usage during busy, busy times.” ⁵ Id. At some point, Tanner expressed concern to McNitt about Plaintiff's “phone usage and also with being able to find [her] during work times.” Id. at 92. Tanner also told McNitt that he was concerned about ongoing problems between Tracy and Plaintiff. Id. at 93. In response, it was determined that BE & K supervisor Tom Zuidema (“Zuidema”) would begin assisting at the warehouse with supervisory duties in early February 2008. ADM Facts ¶ 45; ADM App. at 93. When Zuidema began working at the ADM plant, Tanner “told him my concerns, as far as those people [Tracy and Plaintiff] not getting along, the break times, and also the fact that-just overall performance.” ADM App. at 93. Tanner saw some improvement in the front counter situation at first, but in mid-February 2008, he had another conversation with Zuidema about “what's going on with excessive phone usage, still [Plaintiff's] excessive phone usage, and the fact that they [Plaintiff and Tracy] were still arguing.” Id. Tanner did not, however, see any further improvement. Id.

On February 19, 2008, Tanner had a meeting with warehouse staff, including Plaintiff and Tracy, about excessive use of the phone. BE & K Facts ¶ 22. During the meeting, Plaintiff and her team members were informed that they were only to conduct “personal business on break times” and that emergency phone calls were to be kept to a minimum and were not to be disruptive to the warehouse or its employees. ⁶ Id. ¶ 23. After the meeting, Plaintiff went to Tanner privately and admitted that she had been receiving multiple personal phone calls from her pregnant teenage daughter. Id. ¶ 24; BE & K App. at 29. According to Tanner, “when [Plaintiff] explained that to me, I said, okay, but just please try and keep this at a minimum, so it doesn't impact your ability to be able to work in the warehouse and to efficiently take care of the customers.” ADM App. at 85-86. Plaintiff contends that, after her conversation with Tanner, she instructed her daughter not to call her at work unless it was an emergency. Pl.'s Resp. to ADM Facts ¶ 36. Tanner, however, states that Plaintiff's personal phone usage did not improve. ADM App. at 86.

On Monday, February 25, 2008, Plaintiff began having trouble with her hot water heater at home and asked the ADM lead person, King, if she could use the phone regarding that situation. BE & K Facts ¶ 27. King testified that she told Plaintiff it would be fine to use the telephone, but “to keep her phone usage during break time” and to keep the calls to a minimum. ⁷ BE & K App. at 47. Over the next two days, Plaintiff made and received approximately eight phone calls dealing with the water heater issue. BE & K Facts ¶¶ 28-29; ADM Facts ¶ 54.

On Friday, February 29, 2008, Zuidema met with Plaintiff to discuss his concerns about her employment. BE & K Facts ¶ 30. Zuidema issued Plaintiff a written reprimand on the same date, at McNitt's request, for “Substandard Job Performance,” specifically “talking on phone when she should be working counter. This puts extra burden on co-workers, keeps machinery down longer for employees waiting for parts costing company money.” BE & K App. at 50; see ADM App. at 128 (Zuidema testifying that McNitt told him to write up the reprimand because Plaintiff “was on the phone a lot and [McNitt] was getting four to six phone calls in her office a day for [Plaintiff]. And so she instructed me to write this up, just give Regina a warning that we needed to stop that.”). The reprimand is marked as a “warning” and under “Potential Consequence(s)” reads: “This will lead up to termination.” BE & K App. at 50.

Though Zuidema never stated or implied that the phone calls at issue were those Plaintiff made in relation to her hot water heater, Plaintiff assumed that she was being reprimanded for those calls. BE & K Facts ¶ 32. Plaintiff told Zuidema that King had given her permission to use the phone, and the two walked over to talk to King. ADM App. at 49. Plaintiff recounts the incident as follows:

I talked to-I talked to Tom Zuidema, because he was nice about it. He came over. And he said, Regina, Bill Tanner must have went to Maggie, and told Maggie something about you using the phone or something. And I said-I told Tom-I said, Tom I had permission to use the phone. I said, come and ask Brandi [King]. I said, she will tell you. So we walked back there where Brandi was. I said, did you give me permission to use the phone and make a phone call for my hot water tank. And she said, yes, I did. I said, Bill Tanner done wrote me up for it. She asked to look at it. She said, I don't know why he would do that. I said, I don't know either, but that ain't even right. But I says, but that's okay. I'll go ahead and sign it.

And Tom said, well, go ahead and put on there, you know, whatever you just said, that you had permission, and just sign it. ⁸ And he said, just don't use the phone, unless it's a life or death situation again, you know, he said. And I said, no, I'm not going to even use it for that. I'm not going to use...