Peniska v. CJ Foods Inc.

KRISTEN LYNN PENISKA I, Plaintiff, v. CJ FOODS INC., Defendant.

8:19-CV-277

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

January 4, 2021

MEMORANDUM AND ORDER

This matter is before the Court on defendant CJ Foods Inc.'s ("CJ Foods'") Motion for Summary Judgment. Filing 46. Pro se plaintiff Kristen Peniska was formerly employed by CJ Foods and asserts causes of action against the company for violations of state and federal law based on race- and sex-based discrimination, retaliation, constructive discharge, and failure to provide equal pay for equal work. Filing 10; Filing 13 at 4. Peniska's Filing 48 is also before the Court; it directs the Court's attention to certain documents in the record and points out "hand altering" of documents, asks that "CJ Foods documents from warehouse as of Nov 2019 thru May 2220[sic] be entered as exhibits as well as pay grades," and seeks subpoenas for witnesses to give testimony. To the extent Filing 48 is meant as a brief opposing CJ Foods' Motion for Summary Judgment, the Court will review all admissible evidence before it when considering CJ Foods' motion, as well as any contention raised by Peniska with regard to that evidence. To the extent Peniska is seeking to have the Court subpoena documents or witnesses on her behalf, the Court denies her motion.¹ For the reasons set forth below, CJ Foods' Motion for Summary Judgment, Filing 46, is granted.

I. BACKGROUND

Peniska is a Native American woman. Filing 47 at 2. CJ Foods hired Peniska to work in one of its plants as a warehouse technician in Pawnee City, Nebraska, in 2013. Filing 10 at 2; Filing 47 at 2. She worked the 6:00 a.m. to 6:00 p.m. shift until 2016, when she applied for and was moved to the night shift. Filing 47 at 3. Peniska's duties included loading and unloading goods (dog food and raw materials used in making dog food), conducting inventory, and general shipping and receiving processes. Filing 47 at 3.

Peniska's attendance record was a matter of concern for CJ Foods. See Filing 47 at 4-6. In January 2016, CJ Foods warned Peniska regarding her poor attendance record from January 2015 to 2016. Filing 47-7. During that year, she accumulated eighteen "absenteeism points." Filing 47-7. CJ Foods' records indicate an employee accumulates two absenteeism points when absent or when leaving between sixteen minutes and two hours early and one point for lesser offenses. See, e.g., Filing 47-7. Upon accumulating a certain number of points, an employee can be suspended without pay. See, e.g., Filing 47-11. Points stay on an employee's record for one year. See, e.g., Filing 47-7. In March 2017, Peniska received another verbal warning for having accumulated eight absentee points. Filing 47-8. The company provided a written warning in April 2017 when she reached ten points. Filing 47-9. She received a second written warning for her attendance in May 2017, having accumulated fourteen points. Filing 47-10. In July 2017, CJ Foods erroneously suspended Peniska for two shifts without pay after miscalculating her absentee-point total; CJ Foods later paid her for the time she was erroneously suspended. Filing 47 at 5; Filing 47-2 at 2.In December 2017, Peniska attained twenty absentee points, and CJ Foods suspended her without pay for two shifts. Filing 47-11.

CJ Foods also took issue with Peniska's job performance while she was in its employ. Filing 47. In May 2017, Peniska's supervisor, David Reynolds, rated her job performance a 2.6 on a five-point scale, indicating her performance was below the "meeting expectations" level. Filing 47-12. On Peniska's performance evaluation, Reynolds noted that she struggled with becoming angry when perceiving she was forced to carry more than her fair share of the workload, with being too easily overwhelmed, with focusing on tasks, and with attendance. Filing 47-12. Peniska alleges that another supervisor, Travis Kendall, yelled at her in December 2017 for a bag being open on a pallet only to later discover that another employee was responsible for it. See Filing 47-16; After Peniska placed incorrect lot codes on over 200 pallets on January 19 and 20, 2018, Kendall gave her a verbal warning. Filing 47 at 6; Filing 47-13. Kendall warned her that further performance issues would "result in additional disciplinary action up to and including termination." Filing 47-13. CJ Foods later discovered that Peniska had failed to properly ticket another shipment on January 21. Filing 47-14. Kendall drafted a written warning for Peniska regarding that incident. See Filing 47-14. Before Kendall could address the written warning with Peniska, she found it on his desk and confronted him about it. Filing 47-1 at 125-26. When Kendall confirmed Peniska had found another "write-up" for her performance, Peniska told him he would "get [her] resignation before [she] sign[ed] another write-up because [she had] asked for help." Filing 47-1 at 126. Peniska submitted her resignation on February 4, 2018; the written notice she drafted indicated her resignation was effective the same day. Filing 47-15. Peniska contends the resignation was a notice of her intent to cease employment at CJ Foods two weeks after it was submitted. Filing 47-1 at 128. When she returned to work her next scheduled shift after submitting the resignation, she wastold she was no longer in the computer system because she had already resigned. Filing 47-1 at 146; Filing 47 at 7.

Peniska attributes her performance issues to being forced to work a "two-person job" without help. See, e.g., Filing 47-1 at 126 ("You know I need the help. You know I'm doing a two-person job."). During her deposition, Peniska acknowledged CJ Foods sometimes arranged for temporary workers to assist at her station in the warehouse, but claimed they were "always" pulled to help other stations. Filing 47-1 at 59. Peniska also stated the workers wanted to work with her because "it was an easy job for them to do," but they were not allowed to assist her. Filing 47-1 at 59. She also stated she repeatedly asked for help to no avail and thought she was being treated unfairly. E.g., Filing 47-1 at 72 ("I kept asking for help in the warehouse."). When asked what she thought her supervisors' motives for treating her unfairly were, Peniska responded it might be because she kept asking for help. Filing 47-1 at 72; see also Filing 47 at 9 (responding later in her deposition that she might have been treated unfairly because she was new to the shift or the supervisors were new, and she had no other ideas or beliefs as to her supervisors' motives).

On March 13, 2018, after Peniska had resigned, she filed a Charge of Discrimination with the Nebraska Equal Opportunity Commission ("NEOC"). Filing 47-16. In her charge, she alleged her working conditions and treatment constituted discrimination against her on the basis of her race and sex, and CJ Foods retaliated against her for voicing these complaints in her letter of resignation by terminating her. Filing 47-16. She also alleged her pay was unfair because "mostly White males" were being hired at the same pay rate she made after five years at the company. Filing 47-16. Peniska stated during her deposition that she discussed the matters in her NEOC complaint with the NEOC in January 2018 and had spoken with the NEOC about her working conditions before that, but she had not discussed the complaint with anyone at CJ Foods. Filing47-1 at 145. Peniska also stated that she complained to human resources around Christmas 2017 that she felt she was being discriminated against because she was the only female in the warehouse and had been without a workstation partner the longest. Filing 47 at 9. The human resources employee who spoke to Peniska told her, "I'm trying to get you help. Just bear with me. We'll get you help soon." Filing 47 at 9 (quoting Peniska Deposition at 132).

Peniska filed the present action in June 2019. Filing 1. She brings claims under the federal Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), and the Nebraska Equal Pay Act ("NEPA"), Neb. Rev. Stat. § 48-1221; claims for discrimination and retaliation on the basis of sex and race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. §§ 48-1101-1126; and a claim for constructive discharge under Title VII of the Civil Rights Act of 1964. Filing 10; Filing 13. CJ Foods moves for summary judgment on each claim. Filing 46. The Court will consider each claim in turn.

II. ANALYSIS

A. Standard of Review

"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c). "[S]ummary judgment is not disfavored and is designed for every action." Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences inthat party's favor." Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). The moving party need not produce evidence showing "an absence of a...