Reich v. Hoy Shoe Co., Inc., No. 92-3430

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before WOLLMAN and LOKEN; ELMO B. HUNTER
• Citation: 32 F.3d 361
• Parties: 16 O.S.H. Cas. (BNA) 1937, 1994 O.S.H.D. (CCH) P 30,500 Robert B. REICH, U.S. Secretary of Labor, Appellant, v. HOY SHOE COMPANY, INC., Appellee.
• Docket Number: No. 92-3430
• Decision Date: 12 August 1994

Page 361

32 F.3d 361 16 O.S.H. Cas. (BNA) 1937, 1994 O.S.H.D. (CCH)
P 30,500 Robert B. REICH, U.S. Secretary of Labor, Appellant,
v.
HOY SHOE COMPANY, INC., Appellee. No. 92-3430. United States Court of Appeals,
Eighth Circuit. Submitted June 16, 1993.
Decided Aug. 12, 1994.

Page 363

Counsel who presented argument on behalf of the appellant Ronald Gottlieb, Washington, DC, argued (Judith E. Kramer, Joseph M. Woodward, Ann Rosenthal and Ronald J. Gottlieb, on the brief), for appellant.

Counsel who presented argument on behalf of the appellee was Gerald M. Richardson, St. Louis, MO, argued, for appellee.

Before WOLLMAN and LOKEN, Circuit Judges and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

This case was filed by the Secretary of Labor complaining that Hoy Shoe Company, Inc. (Hoy Shoe), discharged Anita Godsey in retaliation for activities protected under the Occupational Safety and Health Act, 29 U.S.C.A. Sec. 651 et seq (OSH Act). The district court granted Hoy Shoe's summary judgment motion on the basis that the Secretary failed to set forth facts demonstrating that Hoy Shoe had actual knowledge that Anita Godsey engaged in statutorily protected activity. As such, the district court concluded that the Secretary failed to make the requisite prima facie showing. On appeal, the Secretary urges that: (1) the district court erred in requiring the Secretary to show that Hoy Shoe had actual knowledge that Anita Godsey had engaged in protected activity; (2) the district court improperly weighed the evidence and resolved a genuinely disputed factual issue regarding Hoy Shoe's motivation for discharging Anita Godsey; and (3) the district court erred in failing to consider Hoy Shoe's refusal to reinstate Anita Godsey as violative of the anti-discrimination provision of the OSH Act. We REVERSE.

BACKGROUND

Hoy Shoe is a family-owned business that manufactures and distributes sandals. At all times relevant to this action, William Gebel was the President of Hoy Shoe. He directed the company's manufacturing activities. His son, Robert Gebel, was in charge of plant operations, including personnel matters.

Anita Godsey was hired by Hoy Shoe on January 4, 1990, and worked there for almost one year, until November 8, 1990. Ms. Godsey, along with two other employees, operated the 1700 machine. The 1700 machine molds polyurethane into shoes.

According to Anita Godsey, a few months after she began working at Hoy Shoe, she voiced certain health concerns to her co-operators related to the chemical spray used in the operation of the 1700 machine. She also asked Robert Gebel whether the chemical spray in question was safe and whether employees should be wearing masks and/or gloves.

On October 8, 1990, Ms. Godsey made an informal complaint to the local office of the Occupational Safety and Health Administration (OSHA). On October 20, 1990, Ms. Godsey filed a formal complaint with OSHA alleging hazardous conditions related to the use of the chemical spray at the 1700 machine. On November 5, 1990, OSHA compliance officer, Thomas Briggs, conducted an on-site investigation of the Hoy Shoe plant. Three days later, on November 9, 1990, Godsey reported to work late. At that time she was informed by Robert Gebel that she was being laid off for excessive tardiness. According to Godsey, Robert Gebel also told her that "if you don't think my father [William

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Gebel] knows what is going on in this factory, you're crazy."

As noted above, Thomas Briggs conducted an on-site inspection of Hoy Shoe. During the inspection, he informed the President, William Gebel, that the inspection was pursuant to an employee complaint. Briggs' report and notes related to the inspection indicate that William Gebel inquired regarding the identity of the complaining employee and appeared quite upset that Briggs could not reveal the employee's identity so he could "take care of the problem." Briggs' notes further reflect his impression that William Gebel, "would harass the complainant if he knew who it was." Finally, according to Briggs, W. Gebel indicated that he thought the employee who filed the OSHA complaint was a woman who had raised similar complaints to the company in the past.

Subsequent to her discharge, Godsey complained to OSHA that her discharge violated the anti-discrimination provision of the OSH Act. ¹ The Secretary advised Hoy Shoe of the retaliation complaint and conducted an investigation. After completing the investigation, the Secretary filed this lawsuit in the district court alleging that Hoy Shoe's discharge of and refusal to reinstate Godsey violated Sec. 11(c) of the OSH Act.

On August 15, 1990, Hoy Shoe instituted an employee conduct policy, which, among other things, addressed employee attendance. The policy warned that excessive tardiness could provide a basis for suspension or termination. Hoy Shoe contends that it discharged Ms. Godsey for excessive tardiness, in violation of company policy.

The Secretary's investigation established that, prior to Godsey's discharge, no employee had been disciplined under the August 15th attendance policy. Godsey was the first person so disciplined, even though other employees had comparable or worse attendance records. The investigation further established that employees who continued to violate the policy, after Godsey's discharge, and whose instances of tardiness exceeded Godsey's, were not disciplined. The only other employee ever disciplined under the policy had a record significantly worse than Godsey's and was not disciplined until a point in time after Hoy Shoe had received notice of Godsey's retaliation complaint.

Pursuant to Hoy Shoe's motion, the district court granted summary judgment in favor of Hoy Shoe and dismissed the Secretary's complaint. The district court concluded that the Secretary was required to demonstrate that Hoy Shoe had actual knowledge of the identity of the complaining employee and that the evidence did not permit an inference that Hoy Shoe knew Ms. Godsey had filed the OSHA complaint giving rise to the inspection. ²

We disagree with the conclusion of the district court's analysis and its application of this Court's prior decisions. Accordingly, we now REVERSE.

I.

Summary judgment is proper if, upon viewing the facts in the light most favorable to the non-moving party, and giving her or him the benefit of all reasonable inferences, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th Cir.1991) (citations omitted). This Court, and the Supreme Court, have previously observed that it may be difficult to prove an employment discrimination case by direct evidence. Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 493 (8th Cir.1990) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716,

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103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). As such, certain circumstantial evidence may be adequate to support an inference of discrimination sufficient to meet plaintiff's prima facie burden. See id. at 493-94. Similarly, once an employer proffers a non-discriminatory reason for the employment action taken, the plaintiff need not always provide direct evidence of the employer's discriminatory intent. Id. at 494 (citations omitted). ³ The logic of this approach applies with equal force in cases where the alleged discrimination manifests itself in the form of a retaliatory discharge. With this said, however, it should not be taken that this Court is announcing a special rule for summary judgment in discrimination cases. It is not our view that the mere establishment of a prima facie case on the part of the plaintiff entitles her or him to survive a motion for summary judgment. Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1111 (1st Cir.1989). In all cases, whether direct or circumstantial, plaintiff's evidence must be sufficient to raise a genuine issue of material fact regarding defendant's reason for the employment action taken.

II.

In considering retaliation cases, this Court has adopted a three-pronged framework for analysis. First, the plaintiff must make a prima facie case by "showing participation in a protected activity, a subsequent adverse action by the employer, and some evidence of a causal connection between the protected activity ... and the subsequent adverse action." Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir.1993) (citations omitted). ⁴ Second, once the plaintiff has established a prima facie case, the burden shifts to the employer to articulate an appropriate non-discriminatory reason for its action. Schweiss, 987 F.2d at 549 (citations omitted). Finally, if the employer satisfies this burden, the plaintiff must then demonstrate that the proffered reason is pretextual. Id. (citations omitted). ⁵

Here, the district court determined, as a matter of law, that the Secretary failed, in the first prong, to establish a causal link between Godsey's protected activity and the adverse employment action, thereby failing to make his prima facie case. In doing so, the district court opined that plaintiff has the burden of showing that the employer knew that the employee in question engaged in protected activity. ⁶ Apparently, the district court would require in every case alleging retaliatory discharge that the plaintiff prove actual knowledge on the part of the defendant of the identity of the particular employee engaging in protected...