IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
WILLIAM FEICKERT
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant
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Civil No. 4:11cv062
PLAINTIFF’S OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff William Feickert (hereinafter “Mr. Feickert”), through undersigned
counsel, pursuant to F.R.C.P. 56 and Local Rule 7.1, hereby submits his opposition to
defendant, BNSF Railway’s, motion for summary judgment.
I. INTRODUCTION
In its motion defendant contends that there are no disputes of material fact and
that it is entitled to judgment as a matter of law. Specifically, defendant argues that Mr.
Feickert cannot make out a prima facie case of age discrimination, nor demonstrate that
defendant’s putative legitimate, non-discriminatory reason for his disparate treatment is
pretextual. As will be explained below, defendant’s positions are baseless. In fact the
record evidence clearly supports both Mr. Feickert’s prima facie case, as well as the
pretextual nature of defendant’s explanation. Ultimately the record evidence strongly
suggests that Mr. Feickert was singled out for disparate treatment based on his age, and
that defendant’s mistreatment forced him to abandon the railroad and the job he loved.
II. STATEMENT OF MATERIAL FACTS FOR WHICH THERE ARE
GENUINE DISPUTES
All of the material facts that defendant contends in its brief are “uncontested” are
in fact heavily disputed, if not completely contradicted by the record evidence. Pursuant
to Local Rule 7.1(A)(3), Mr. Feickert hereby sets forth his counter statement of disputed
material facts, with ample of annotation to the record.
Mr. Feickert began his 40-year career with defendant in 1970, when he was hired
as a switchman in October, 1970. Feickert Dep. 10-11. Several years into his tenure,
Mr. Feickert enrolled in and successfully completed training to become a locomotive
engineer. Id. at 12. Mr. Feickert worked in this capacity from 1976 until he left the
company in July, 2010. Id. at 13.
Between 1986 and May, 2010, Mr. Feickert worked as an engineer on the freight
line out of Minot, North Dakato. Id. at 14. This position entailed working odd-hours and
weekends. Id. at 38. Over time Mr. Feickert began to desire a position with regular, daytime hours. Id. By the early aughts he had accrued sufficient seniority to successfully
bid on such positions. Id. at 39.
Mr. Feickert learned that the engineer position based in Williston, North Dakota
offered the regular schedule he desired. Id. at 42. Although it was far from his home,
Mr. Feickert also knew – and in fact it was common knowledge – that the Willistonbased engineer was permitted to lodge during the week in company-paid quarters. Id. at
43; Jurgens Dep. at 17-18, 20-21, 24; Anderson Dep. at pp. 14-16; Amsler Dep. at pp. 18,
21-22, 37; Reinke Dep. at p. 39; Whitten Dep. at pp. 44-45, 52, 56, 60; Berg Dep. at pp.
19, 22, 24; Reyes Dep. at 22. Williston is what the defendant denotes an “outlying”
location, and many of the train employees based there have homes in cities significant
distances away. See Reinke at 56. Defendant, aware of this logistical difficulty, allowed
Williston-based crew to occupy company-paid hotel rooms during the workweek on a
regular basis. Whitten at 45, 47, 60-63; Anderson at 14-15; Reinke at 39.
Indeed it was company policy to keep several hotel rooms reserved on a daily
basis, year-round for use by its employees. See Exh. A (Def.Response to Req. for
Production No. 2 with attached charts1); Reyes at 23. These were called “guaranteed
rooms.” Berg at 24. At the time of the events that animate this lawsuit, the company
maintained between seven and ten guaranteed rooms at Williston hotels for use by its
employees. Exh. A. These rooms were available and paid for whether or not any one
elected to use them. Exh. B (N.D.Dept. of Labor Report, p. 3). As defendant admitted,
“allowing employees to stay in available rooms already guaranteed and paid for by BNSF
was cost neutral.” Id.
Defendant argues on brief that these guaranteed rooms were meant only for use
by “extra board” or “force assigned” employees. Def.Br. at 3. “Extra board” refers to
employees who fill in for a period of up to six days when another employee is absent
from his position. See Reinke at 63-64. “Force assigned” refers to employees who are
directed to assume a vacant position away from their home terminal to insure adequate
manpower at the away location. Def.Br. at 3. The record flatly contradicts defendant’s
assertion that the Williston rooms were limited to use by such employees2. Rather,
1
Defendant has provided information as to how many hotel rooms it kept reserved in
Williston at the time of the events underlying this action: between 7-10. It attaches charts
showing which employees used these rooms and when. Taken together this information
illustrates that the vast majority of these rooms were unused for the entire time Mr.
Feickert was in Williston.
2
Indeed during the state investigation into Mr. Feickert’s charge, defendant admitted that
“BNSF allowed employees who bid into Williston to stay at company provided lodging
management repeatedly stated that these rooms were available for Williston-based crew;
and the record reflects that these crew members routinely took advantage of this benefit.
Feickert at 43; Jurgens at 17-18, 20-21, 24; Anderson at pp. 14-16; Amsler at pp. 18, 2122, 37; Reinke at p. 39; Whitten at pp. 44-45, 52, 56, 60; Berg at pp. 19, 22, 24; Reyes at
22.
In the spring of 2010, Mr. Feickert determined that he would “bid” on the
engineer position in Williston. Feickert at 27. The position had a one-year “tie-down”,
meaning that the incumbent was required to serve in the position for at least one year. Id.
at 38; Reinke at 21; Berg at 20-21. He could not transfer out of the position during this
period. Id.
Prior to bidding on the position, Mr. Feickert reconfirmed with management that
the position included paid lodging. Management assured Feickert that “company policy
was to pay for the engineer’s room at Williston.” Feickert at 43; see also Whitten at 45.
Mr. Feickert acted in reliance on this assurance.
In or about May 2010, Mr. Feickert submitted his bid. Feickert at 35. Also
bidding on the position was its then-current incumbent, Dusty Jurgens. Jurgens at 14;
Reyes at 19. Because Feickert enjoyed greater seniority, he was able to “bump” Jurgens
and obtain the position. Jurgens at 14.
In the weeks leading up to Mr. Feickert’s start date, June 9, 2010, news of his bid
reached Superintendent of Operations Stephen Reinke in Havre, Montana. Feickert
Affidavit at . Just days before Feickert’s transfer, Reinke contacted Mr. Feickert’s
union steward and ordered him to deliver a message to Feickert. Id. The message was
when surplus rooms were available.” Exhibit B, p. 3. In its brief, however, defendant
inexplicably changes its story, now arguing that this was never permissible.
this: there would be no paid lodging for Feickert in Williston. Feickert at 43; Feickert
Affidavit at .
Despite this news Mr. Feickert was committed to his position in Williston.
Feickert at 62-63. After his arrival, the company continued to maintain between seven
and ten hotel rooms in Williston every weeknight. Exh. A. Denied access to these
accommodations, Mr. Feickert scrambled to find alternative lodging. Ultimately he was
forced to live out of his pick-up truck. Feickert at 45. While he spent his nights in his
truck, numerous guaranteed rooms sat vacant only yards away. Exh. A; Feickert at 64;
Amsler at 23.
Upset at his treatment, Mr. Feickert lodged an oral grievance with his union.
Feickert at 53. Mr. Berg, learning of the grievance, contacted Reinke. Reinke at 46-47.
Reinke, however, was intransigent and refused to grant Feickert access to the rooms. Id.
at 48.
In July, 2010, Mr. Feickert took a two week prescheduled vacation. Feickert at
55. During this time, Robert Amsler – an engineer 24 years Feickert’s junior -- bid to
work the temporary vacancy left by Mr. Feickert. Feickert at 66; Amsler at 20-22. This
temporary position was neither “extra board”, since it exceeded six days, nor a “forced
assignment”, since Amsler voluntarily bid on it. Amsler at 22; Reinke at 63-64. Thus,
according to defendant’s own adumbration of its policy, it was not entitled to paid
lodging. Reinke at 63-64. Nonetheless, upon arriving in Williston – and taking over Mr.
Feickert’s position -- Mr. Amsler was permitted to occupy the very rooms Feickert had
been denied. Amsler at 22.
In late July, 2010, Mr. Feickert could no longer tolerate living out of his car,
particularly when younger crewmen were gratuitously provided hotel rooms. He retired,
effective July 31, 2010. Feickert at 56-57.
Just weeks after Feickert’s departure, Mr. Reinke created three additional
engineer positions in Williston. Reinke at 40; Exh. B at p. 3. All of these positions
included paid lodging. Although Mr. Reinke had been planning these new positions for
months while Mr. Feickert was still employed, and although he was aware of Mr.
Feickert’s pleas for housing, and although there were 7-10 guaranteed rooms available,
he never offered to transition Mr. Feickert into one of these positions. See Reinke at 4052. All of these positions – as well as other new positions in Williston -- were filled by
substantially younger employees. See Feickert Affidavit at
.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is only appropriate where the evidentiary record demonstrates
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.” F.R.C.P. 56(c). The Court’s function at the summary
judgment stage is not to weigh evidence and determine the truth of the matter, but to
determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d
1372, 1376-77 (8th Cir. 1996). An issue of material fact is genuine if it has a real basis in
the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir. 1992) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In reviewing the record,
the court must view all the facts in the light most favorable to the nonmoving party and
give that party the benefit of all reasonable inferences that can be drawn from the facts.
Matsushita, 475 U.S. at 587.
The Eighth Circuit Court of Appeals has cautioned that summary judgment is
rarely appropriate in employment discrimination cases. See Franklin v. Local 2 of the
Sheet Metal Workers Intern. Ass’n, 565 F.3d 508, 521 (8th Cir. 2009) (“Summary
judgments should be sparingly used and then only in those rare instances where there is
no dispute of fact and where there exists only one conclusion.”); Simpson v. Des Moines
Water Works, 425 F.3d 538, 542 (8th Cir. 2005) (“summary judgment is disfavored in
employment discrimination cases”); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.
1994) (“[S]ummary judgment should seldom be used in employment-discrimination
cases.”) (citing Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1244 (8th Cir.
1991). This is because discrimination cases are fact-driven, and often “depend on
inferences rather than on direct evidence…[thus]summary judgment should not be
granted unless the evidence could not support any reasonable inference for the
nonmovant.” Crawford, 37 F.3d at 1341. See also, Snow v. Ridgeview Medical Ctr.,
128 F.3d 1201, 1205 (8th Cir. 1997) (“Because discrimination cases often turn on
inferences rather than on direct evidence, we are particularly deferential to the
nonmovant.”) (citation omitted).
IV. ADEA CLAIM
Under the ADEA, it is unlawful for an employer to “discharge any individual or
otherwise discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623 (a)(1). A plaintiff may establish her claim of intentional age discrimination through
either direct or indirect evidence.” Ward v. Int’l Paper Co., 509 F.3d 457, 460 (8th Cir.
2007).
An ADEA claim based on circumstantial evidence is analyzed under the burdenshifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802804 (1973); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (applying
McDonnell Douglas framework to analyze ADEA case). At the first stage of the
McDonnell-Douglas framework, plaintiff must adduce evidence to establish a prima facie
case of discrimination. Id. at 802. A plaintiff establishes a prima facie case of age
discrimination by demonstrating that a) he is a member of the protected class; b) he
suffered an adverse employment action; c) that circumstances permit an inference of
discrimination. Bearden v. Int’l Paper Co., 529 F.3d 828 (8th Cir. 2008).
Once established, the prima facie case entitles the plaintiff to a rebuttable
presumption of discrimination. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776
(8th Cir. 1995). At that point, the burden shifts to the employer to rebut the presumption
by producing evidence that the employer made the questioned employment decision for a
legitimate, non-discriminatory reason. Tuttle v. Missouri Dept. of Agriculture, 172 F.3d
1025, 1029 (8th Cir. 1999). If the employer does so, the plaintiff must then come forward
with evidence tending to show that the proffered reasons are pretextual and that the
employment decision was the result of discriminatory intent. St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 511 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000).
The Supreme Court has made clear that the ultimate inquiry is whether the
employer intentionally discriminated against plaintiff because of age. Gross v. FBL
Financial Servs., Inc., 530 U.S. 133 (2000). A plaintiff may carry this burden by
demonstrating that the employer’s proffered reasons for its action are factitious. “If the
defendant’s proffered reasons are rejected, the trier of fact may infer the ultimate fact of
intentional discrimination.” Fickse v. Hall, 2010 WL 375012 (N.D.Iowa); St. Mary’s,
509 U.S. at 510 (“The factfinder’s disbelief of the reasons put forward by the defendant
(particularly if the disbelief is accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to show intentional discrimination”);
Reeves v. Sandson Plumbing Prods., Inc., 530 U.S. 133, 148 (“[A] plaintiff’s prima facie
case, combined with sufficient evidence to find that the employer’s asserted justification
is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.”); Betz v. Chertoff, 578 F.3d 929 (8th Cir. 2009) (“We agree that an
employer’s false explanation may support-though it does not require—an inference of
discrimination.”) (citing Reeves, supra); Woehl v. Hy-Ve, Inc., 637 F.Supp.2d 645
(S.D.Iowa 2009) (“if the proffered reason is shown by conflicting evidence to be untrue,
then the non-moving party is entitled to all favorable inferences that the false reason
given masks the real reason of intentional discrimination.”) (citing Loeb v. Best Buy Co.,
Inc., 537 F.3d 867 (8th Cir. 2008).
Pursuant to the foregoing authorities, it is clear that the record in this case
supports sending this matter to a jury for determination.
A. PRIMA FACIE CASE
Defendant initially challenges Mr. Feickert’s prima facie case. Specifically
defendant avers that Mr. Feickert did not suffer an adverse action for which the law
provides a remedy. Defendant further contends that no substantially younger employee
was treated more favorably than Feickert in similar circumstances. Neither of these
contentions has merit.
i. Adverse Employment Action
As a preliminary matter, it cannot be seriously disputed that Mr. Feickert suffered
adverse employment actions. As defendant concedes, that term includes, inter alia, cuts
in benefits and/or other material changes in conditions of employment. Wilkie v. Dep’t
of Health & Human Servs., 638 F.3d 944, 954-55 (8th Cir. 2011). See also, Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (an adverse employment action includes
a “decision causing significant change in benefits.”) In addition, constructive discharge
constitutes “an undisputed form of an adverse employment action.” Lopez v. Aramark
Uniform & Career Apparel, Inc., 426 F.Supp.2d 914, 942 (N.D.Iowa 2006) (citations
omitted).
The record reflects that defendant denied Mr. Feickert a valuable benefit – paid
lodging – that it routinely provided other employees. Defendant’s citation to cases
involving employer-directed lateral transfers completely misses the mark and obfuscates
the issue. The question here is not whether defendant forced upon Mr. Feickert a
disadvantageous transfer, but whether it deprived Mr. Feickert of a substantial benefit
that it provided others in the same position. Such an adverse action is indisputably
cognizable. See Greer v. St. Louis Regional Medical Center, 258 F.3d 843 (8th Cir. 2001)
(employee who was denied travel pay and call back pay while others in the same position
received these benefits stated a cognizable adverse employment action).
In addition, Mr. Feickert adduces triable evidence that he was constructively
discharged. It is uncontested that once Mr. Feickert obtained the Williston position,
management denied him paid lodging. It is further uncontested that he was locked in the
position for a year. In addition, he adduced evidence that he was forced to live out of his
car for lack of alternatives. Management, aware of his situation and his grievance, failed
to offer him one of the “new” positions that officially provided housing.
These facts present a jury question as to whether Mr. Feickert was constructively
discharged. A constructive discharge occurs “when an employer intentionally creates a
work environment so intolerable as to compel a reasonable employee to quit, and the
employee does in fact quit.” Tadlock v. Powell, 291 F.3d 541 (8th Cir. 2002). A plaintiff
may satisfy the intent requirement by showing the intolerable situation created by the
employer was such that the employer could reasonably foresee that the employee would
quit. Id. (citing Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000). In
Tatom, the employee was transferred to another town and stripped of his supervisor title,
although he suffered no diminution in wages or benefits. The Court held that such
circumstances were sufficient to create a fact question on the issue of constructive
discharge. Id. In this case, Mr. Feickert was stripped of an important benefit – paid
lodging – one on which he had reasonably relied, and was forced to live out of his truck
while numerous paid rooms either sat vacant, or were freely provided to younger crew
persons. When he aired his grievance, it was summarily dismissed by management. If an
employee can demonstrate constructive discharge by merely having his title changed –
without any change in remuneration or benefits -- it can scarcely be argued that an
employee who is stripped of housing and forced to live out of his truck has, at the very
least, presented a jury question on this issue. See Betz v. Chertoff, 578 F.3d 929 (8th Cir.
2009) (“The Eighth Circuit Court of Appeals has repeatedly recognized that “if an
employee quits because he reasonably believes there is no chance of fair treatment, there
has been a constructive discharge.”) (citing Turner v. Honeywell Fed. Mfg. & Techs.,
LLC, 336 F.3d 716, 724 (8th Cir. 2003).
ii. Similarly Situated, Substantially Younger Employees Treated
More Favorably
The fourth prong of the prima facie case requires Mr. Feickert to adduce evidence
that a substantially younger, but otherwise similarly situated employee was treated more
favorably than he. A comparator(s) need not be identically situated, but must be similarly
situated in all relevant respects. Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th
Cir. 2001); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)
(explaining that a plaintiff should identify an employee sufficiently similar to support the
minimal inference that the differences in treatment “may be attributable to
discrimination.”); Velez v. Thermo King De Puerto Rico, Inc., 585 F.3d 441, 451 (1st Cir.
2009) (“We examine whether a prudent person, looking objectively at the incidents,
would think them roughly equivalent and the protagonists similarly situated. While an
exact correlation is not necessary, the proponent must demonstrate that the cases are fair
congeners.”) (citation omitted).
As for the requirement that a comparator be “substantially younger”, the term
eludes precise definition. Rather courts generally look to the entirety of the
circumstances to determine, on a case-by-case basis, whether a given age differential
supports the prima facie case. Thus although the 8th Circuit has set a floor of five years,
only slightly greater gaps have been held sufficient. See Hothem v. Schneider, 865
F.Supp.2d 962 (D.S.D. 2012) (under circumstances of case, nine year age difference held
sufficient to support fourth prong of prima facie case). See also Grosjean v. First Energy
Corp., 349 F.3d 332 (6th Cir. 2003) (age differences of six years or greater significant);
Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir. 2000) (8 year difference sufficient);
Damon v. Fleming Supermarkets, 196 F.3d 1354, 1359 (11th Cir. 1999) (five years
sufficient); Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999)
(eight year gap sufficient); Carter v. DecisionOne Corp., 122 F.3d 997 (11th Cir. 1997)
(three year age gap sufficient); Nembhard v. Memorial Sloan Kettering Cancer Ctr., 104
F.3d 353, 1996 WL 680756, at 3-4 (2d. Cir. 1996) (one year age difference sufficient).
Bearing in mind the foregoing, Mr. Feickert has adduced sufficient evidence to
create a genuine dispute of material fact on the fourth prong of his prima facie case.
Arguably Mr. Feickert’s closest comparator is Bob Amsler, an engineer 24 years his
junior, who voluntarily bid on and occupied his identical position while Feickert was on
leave. Amsler’s assignment was not extra board, nor a forced reassignment. Rather, it
was a “temporary vacancy.” Persons who volunteer for temporary vacancies, are
required – according to defendant -- to pay their own lodging. In other words, they are
subject to the same restrictions that defendant contends justified Feickert’s exclusion
from housing. As Reinke testified:
A: Somebody with enough seniority who wanted to bid in that
temporary vacancy – I think it has to be for over a certain number
days…five or six or seven before it becomes a temporary vacancy and not filled
off the extra board. If it’s longer than that, then somebody can bid in that job and
work the temporary vacancy.
Q: And those persons should provide their own lodging, correct?
Mr. Schuch: Yes.
A. Typically, yes.
**
Q: So anybody [on temporary vacancy] that stayed in a provided room would be
violating company policy, correct?
A: Yes.
**
A. [Those rooms] were for extra board people that would go over there to fill
vacant positions.
Reinke Dep. at 63-64; 46.
It is undisputed that Mr. Amsler stayed in company-paid lodging four nights a
week while working Mr. Feickert’s position in Williston. Amsler at 20-22; Exh. A.
The defendant argues that Mr. Amsler is not similarly situated because his
position was classified differently than Mr. Feickert’s.3 For purposes of our analysis,
this distinction is immaterial. C.f. Greer v. St. Louis Regional Medical Ctr., 258 F.3d
843 (8th Cir. 2001) (employer’s explanation that comparators were treated more favorably
because they were from a different unit was unavailing, since they were nonetheless
subject to same employer rules). The point is that both Amsler and Feickert were,
according to defendant, subject to the same proscription on paid lodging. See Betz v.
Chertoff, 578 F.3d 929 (8th Cir. 2009) (employees are similarly situated when subject to
the same employer rules and standards). Yet, while Reinke went out of his way to
It is telling that defendant’s attempt to explain away Amsler more favorable treatment
has materially changed over time. In its response to the State’s investigation, it claimed
that Amsler was working “extra board” when he replaced Feickert. Exh. B, p. 8.
However after Amsler flatly disavowed this at his deposition (Amsler at 24), defendant’s
explanation has mutated into a non-specific suggestion that the lodging rule did not apply
to Amsler.
3
enforce this putative rule against Feickert, he permitted Amsler to violate it with
impunity. C.f. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976) (that
employees outside protected class are treated more leniently in connection with violation
of employer rule can provide evidence of discriminatory animus). If Mr. Reinke were
truly concerned with following “the rules” and insuring that these rooms be reserved only
for extra board persons, as he fulsomely argues, there is no rationale explanation for this
disparate treatment.
In addition to Amsler the record discloses several other substantially younger
comparators were provided more favorable treatment vis a vis paid lodging. Only weeks
after Mr. Feickert was forced to retire, Reinke advertised several additional engineer
positions in Williston – including Feickert’s position -- all of which included free
lodging. Exh. B, at p. 3. Most of these positions – as well as other new ground crew4
positions – were filled by individuals in their twenties and thirties. Feickert Affidavit.
While defendant may argue that these individuals are not comparators because
their positions were advertised to include lodging and reflected an (abrupt) shift in
lodging policy in Williston, this would smack of disingenuousness. These positions were
in the works before Feickert left. Reinke 40-44. Common sense counsels that if Reinke
was planning to offer lodging to Williston engineers (because, as he testified, Williston
was difficult to staff and was desperately short on manpower), he should have started
with Feickert. See Hothem, 865 F.Supp.2d 962, 983 (fact that employer created new
Defendant argues that the “ground crew” are covered by a different collective
bargaining agreement than engineers and are therefore not similarly situated. However,
once again this is a proverbial distinction without a difference. An examination of the
relevant agreements, which defendant has attached to it brief, reveals there is no
difference in the rules governing lodging for these two sets of employees. Thus they are
similarly situated in this singular, relevant respect.
4
positions for which senior employee was qualified, but failed to offer job to senior
employee and instead let him go and filled position with younger applicants, is suggestive
of discriminatory animus).
It is perhaps appropriate, at this juncture, to remember Justice Holmes famous
admonition, “the life of the law is not logic, but experience.” Oliver Wendell Holmes,
The Common Law 1 (1881). Human experience counsels that in these circumstances,
Reinke would have accommodated his senior, highly experienced engineer, who was
desperate for housing, with paid lodging, since he was about to offer this anyway, and
there were numerous paid rooms available. That he did not “is surely the kind of fact
which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the
employer’s explanation for this outcome.” MacDissi v. Valmont Industries, Inc., 856
F.2d 1054, 1058 (8th Cir. 1988). In light of these circumstances it is fair to include Mr.
Feickert’s immediate successors in the category of similarly situated, but more favorably
treated, comparators.
Finally Mr. Feickert has identified Jurgens and J.T. Anderson as additional
comparators. Recall that these employees received paid lodging in Williston on a regular
basis in the same time frame that Feickert was denied this benefit. Mr. Jurgens, who
received free lodging for the entire period that he was in Williston, is 8 years and 8
months younger than Mr. Feickert. Mr. Anderson, who received this same benefit, is 9
years and 5 months younger than Feickert. The 8th Circuit has opined that differences of
five years or less are not sufficiently substantial to raise an inference of discrimination.
However, age differences such as those present here have been held to be sufficient.
Hothem, 865 F.Supp.2d at 980. Thus Mr. Feickert has raised a triable issue as to
whether these employees are comparators.
In sum Mr. Feickert adduces ample evidence that similarly situated, sufficiently
younger employees were treated more favorably than he in like circumstances. Thus he
has made out a prima facie case of discrimination.
B. LEGITIMATE NON-DISCRIMINATORY REASON
Defendant’s ostensible legitimate, non-discriminatory explanation for Feickert’s
treatment is that it was simply following a neutral company policy that forbid paid
lodging at one’s “home terminal.” Since Williston was technically Mr. Feickert’s home
terminal, argues defendant, he was not entitled to lodging. According to defendant,
others had gotten away with paid lodging because trainmaster Berg had been excessively
generous unbeknownst to Reinke; and that once Reinke learned, in Spring of 2010, that
Jurgens was using company rooms, “he took corrective action” and put an end to this
practice. As will be seen, this explanation is plainly false.
C. PRETEXT
There is more than sufficient record evidence from which a factfinder could
conclude that defendant’s purported legitimate explanation for its treatment of Feickert is
a pretext for discrimination.5 Pretext may be demonstrated in a number of ways. For
one, a plaintiff can adduce evidence that the employer's proffered explanation has no
There is no “heightened evidentiary requirement” requiring direct evidence for
demonstrating pretext in age cases, as defendant seems to suggest. Indeed the Supreme
Court in Gross specifically disavowed such a conclusion. Gross at 178, fn. 4. See
Barkoff v. Bossard North America, Inc., 684 F.Supp.2d 1096, 1108 (N.D.Iowa 2010)
(citation omitted). McDonnell-Douglas and its progeny continue to apply in assessing
whether the evidence indicates the employer’s justification is a pretext for discrimination.
Id.
5
basis in fact. Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005).
From this the trier of fact “can reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.” Reeves, 530 U.S. at 143;
St. Mary’s, 509 U.S. at 510 (“the factfinder’s disbelief of the reasons put forward by the
defendant (particularly if the disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice to show intentional
discrimination.”) Also, the employee can prove pretext by showing that the employer
varied from its normal policy or practice to address the employee's situation. Erickson v.
Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001). For example, the employee
could show that the employer routinely treated similarly situated employees who were
not in the protected class more leniently. Smith, 302 F.3d at 835.
In this case the record strongly suggests that defendant’s proffered justification
has no basis in fact. Defendant sums up its position as follows:
In not providing Feickert paid lodging at his home terminal, BNSF merely
followed the same policy and practice it had followed every other time [] any
other employee voluntarily moved their home terminal to a location where BNSF
has not contractually agreed to provide lodging.
Def.Brief at 18. As we have seen, this is just not true. The record amply demonstrates
that BNSF routinely provided lodging in Williston to crewmen whose “home terminal”
was Williston. This was the policy and practice both before and after Mr. Feickert was
singled out by Reinke and denied this benefit.
Defendant’s position that Reinke was unaware that trainmaster Berg was allowing
exceptions to this putative policy until Spring of 2010, when he fortuitously discovered
Jurgens was using rooms, does not withstand even cursory scrutiny. In fact Reinke
testified that he was well aware that Williston employees were using company lodging
for years prior to 2010. Reinke at 39, 49-50. Never before, however, had he intervened,
much less sent a direct message to an engineer warning him to stay out of paid lodging,
as he had with Feickert. See Id.
Thus we are left with two possibilities: either defendant had no such policy, or
Reinke was selectively enforcing it against Feickert – the oldest, most senior engineer.
Either way, the defendant’s explanation is patently false and provides a basis for inferring
discrimination.
Indeed, Mr. Reinke presents a problem for defendant, because so much of what he
says suggests deliberate obfuscation and/or mendacity. Some examples are as follows:
Example No. 1
According to Reinke, in Spring of 2010 he ordered Jurgens to stay out of
company rooms. He states:
We told [Jurgens] that he couldn’t do that anymore, that he needed to leave it
open so in case we needed that room for whatever extra board people or…other
contingency…it would be available…and that’s when he bid off the job.
Reinke at 23. According to Reinke, he directed trainmaster Berg to deliver this message
to Jurgens. Id. at 25-27.
Berg, however, denies that this discussion ever took place. Berg at 26-27.
Jurgens confirms that no one ever informed him in 2010 that he could not occupy
company rooms in Williston. Jurgens at 22-23.
Example No. 2
Reinke claims that after he delivered the message to Jurgens to stay out of
company lodging, he “bid off” the job, leaving an opening for Feickert. Reinke at 23, 25.
But Jurgens testified he never “bid off” the Williston job. Rather he wanted to
stay on the job, but was bumped by Feickert. Jurgens at 14; Reyes at 19. After Feickert
retired, Jurgens returned to the position in Williston, and resumed staying in company
lodging. Jurgens at 24.
Example No. 3
Mr. Reinke at one point testified he “discovered” for first time that Jurgens was
using the company rooms in Spring of 2010, which prompted him to take “corrective
action.” However, later in his testimony he admits there had been numerous times prior
to 2010 that he had known that Jurgens was occupying company rooms. He does not
recall doing anything about it. Reinke at 39, 49, 52.
Example No. 4
Reinke testifies that the lodging reserved in Williston was for “extra board” staff
only and that this was the company policy. However he later admits that in fact “there
weren’t really any rules” regarding use of these rooms. Reinke at 67.
Example No. 5
Reinke contends it is important to keep the company paid lodging rooms vacant
so they are available for extra board personnel. He describes how an extra board person
could show up any time of day or night and need a room. However he could identify
only one instance over a course of years where there was no guaranteed room available in
Williston for an extra board person. Reinke 52. Indeed the company admits that there
were numerous empty hotel rooms available every night that Feickert was living out of
his truck. See Exh. A.
Example No. 6
Reinke admits that the issue of lodging “is a very minor concern”, and was not a
priority for him at the relevant time. Reinke at 51. Yet he admittedly went out of his
way to communicate a message to Feickert to stay out of the rooms.
Example No. 7
Reinke admits that it was hard to attract employees to Williston, that Williston
had a greater need for manpower since the Bakken oil explosion earlier in the decade, and
that he therefore planned to create several “new” engineer positions in Williston, all of
which would have paid lodging. Reinke 40-52. Nonetheless at the same time as he was
implementing these plans, he was denying lodging to Williston’s most senior,
experienced engineer and did not offer to transfer or convert him into one of the
imminent “new” positions. C.f. Hothem, 865 F.Supp.2d 962, 983 (fact that employer
created new positions for which senior employee was qualified, but failed to offer job to
senior employee and instead let him go and filled position with younger applicants, is
suggestive of discriminatory animus).
In addition to Reinke, trainmaster Berg’s testimony is similarly troubling.
Example No. 1
Berg testified that he was unaware that Feickert wanted to use company lodging
and that he would have provided it if Feickert had only asked. But the record reflects that
Mr. Berg was not only aware of Feickert’s desire for his room, but was aware Feickert
had filed a grievance over the issue. Reinke at 46-48.
Example No. 2
Berg testified that Reinke never instructed him to bar Feickert from company
lodging. However the record reveals that Reinke directly exhorted Berg not to allow
Feickert to use the rooms. Reinke Dep. 48.
Finally, in addition to the foregoing, the defendant has advanced reasons for its
disparate treatment of Feickert that have materially changed in the interval between the
state investigation of his claim and this litigation. See fns. 2, 3, supra. This is an
additional indicia of pretext. Morris v. Winnebago Indus., Inc., 936 F.Supp. 1509, 1524
(N.D.Iowa 1996).
In the last analysis, defendant’s explanation is so riddled with “weaknesses,
implausibilities, inconsistencies, incoherences and contradictions …that a reasonable
fact-finder could rationally find it unworthy of credence.” Morris, 936 F.Supp. at 1524.
“The trier of fact can reasonably infer from the falsity of [defendant’s] explanation that
the [it] is dissembling to cover up a discriminatory purpose. Such an inference is
consistent with the general principal of evidence law that the factfinder is entitled to
consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.””
Reeves at 147.
On a motion for summary judgment, where the nonmovant is entitled to all
reasonable inferences in his favor, the foregoing requires that defendant’s motion be
denied. There are numerous material disputes of fact in the record surrounding the
ultimate question of discrimination vel non. Mr. Feickert is entitled to submit these
disputes to a jury for consideration. See, e.g., Kragor v. Takeda Pharmaceuticals
America, Inc., ____F.3d____, 2012 WL 6618360 (11th Cir.) (“Of course, if the jury
concludes that defendant’s proffered explanation [] is unworthy of belief, it may still
remain unpersuaded that discrimination was the real reason for the [termination]. That
decision is entrusted to the jury’s discretion, but to exercise that discretion, the jury has to
get the case.”)
V. NDHRA CLAIM
Defendant argues that it is entitled to summary judgment on Mr. Feickert’s
pendent claim under the NDHRA for the same reasons it sets forth on the federal claim.
To establish a prima facie case under the NDHRA a plaintiff must demonstrate, a)
membership in a protected class under the Act; 2) satisfactory performance of the duties
of the position; 3) an adverse employment decision; and, 4) others not in the protected
class were treated more favorably. Koehler v. County of Grand Forks, 2003 ND 44, ¶ 13,
658 N.W.2d 741. “The burden of establishing a prima facie case of disparate treatment is
not onerous.” Jacob v. Nodak Mutual Ins. Co., 2005 ND 56 ¶ 13, 693 N.W.2d 604
(citation omitted). Once established, the burden of persuasion shifts to the defendant to
come forward with preponderant evidence that its action was motivated by one or more
legitimate, non-discriminatory reasons. Id. (citing Schweigert v. Provident Life Ins. Co.,
503 N.W.2D 225, 229 (N.D. 1993). If the defendant meets this burden, the plaintiff may
prevail on the basis of the prima facie case combined with a finding of the incredibility of
the defendant employer’s proffered explanation for its employment decision. Id. (citing
Schuhmacher v. North Dakota Hosp. Ass’n, 528 N.W.2d 374, 379 (N.D. 1995).
As fully discussed, supra, Mr Feickert has adduced sufficient evidence supporting
his prima facie case. See Part IV, A.
Defendant, however, has not met its burden to forecast preponderant evidence
supporting its legitimate, non-discriminatory reason for its disparate treatment of
Feickert. Under state law, the defendant’s burden on this second prong of the analysis is
not merely one of production, but persuasion. In this case, for all of the reasons set forth
in Part IV, the defendant cannot meet this burden.
Furthermore, even were defendant able to meet its evidentiary burden (which it
has not and cannot), plaintiff has set forth ample evidence discrediting defendant’s
explanation. As the North Dakota Supreme Court has reiterated, plaintiff’s prima facie
case, coupled with a finding of incredibility of defendant’s proffered explanation, is
sufficient to prove the adverse action resulted from age discrimination. Schuhmacher at
379; Jacob at 609.
VI. CONCLUSION
For all of these reasons, defendant’s motion for summary judgment on Mr.
Feickert’s state and federal age discrimination claims must be DENIED.
Respectfully submitted,