United States v. Ronald S. Morin

1 The Honorable John A. Jarvey, United States Magistrate Judge, for the
Northern District of Iowa, to whom the case was referred for decision by consent of
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1710
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Nancy M. Kratzer, *
*
*
Appellant, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Rockwell Collins, Inc., *
David A. Bellendier, and *
Eugene R. Nedved, *
*
Appellees. *
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Submitted: November 17, 2004
Filed: February 22, 2005
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Before SMITH, BEAM, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Nancy Mae Reddick Kratzer sued Rockwell Collins, Dave Bellendier, and
Eugene Nedved for disability discrimination, sex discrimination, and retaliation in
violation of the Americans with Disabilities Act of 1990, Title VII of the Civil Rights
Act of 1964, and the Iowa Civil Rights Act. The district court 1 granted summary

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the parties pursuant to 28 U.S.C. § 636(c) (2002).
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judgment to the defendants on all claims. Jurisdiction being proper under 28 U.S.C.
§ 1291, this court affirms.
This court reviews de novo a grant of summary judgment. Carter v. St. Louis
University, 167 F.3d 398, 400 (8th Cir. 1999). Viewing the facts most favorably to
the non-moving party, summary judgment is appropriate if there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Carter, 167 F.3d at 401. This court may
affirm a grant of summary judgment on any ground supported by the record, even if
not relied upon by the district court. Habib v. NationsBank, 279 F.3d 563, 566 (8th
Cir. 2001).
I.
A. Disability Discrimination
In 1994, while employed at Rockwell, Kratzer suffered a workplace injury
limiting her ability to use a foot pedal or sit for more than one hour. As an
accommodation, Rockwell permitted the use of an adjustable chair, and an electrical
cart for her travel between workstations.
Kratzer's job classification was 407B, sheet metal straightener. Membership
in the International Brotherhood of Electrical Workers (IBEW) entitled Kratzer to
seek training and testing for the 408B classification. Testing for 408B included a
written and a four-part mechanical test – producing sheet metal on four different
machines.

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In April 2000, Kratzer passed the written test. In May she requested to take the
mechanical test. A meeting was held that month to assess potential accommodations.
At the meeting, a Rockwell occupational ergonomics therapist suggested modifying
a foot pedal to knee level so Kratzer could operate it without using her foot. Kratzer
opposed the modification because she had additional physical limitations needing
accommodations. Rockwell and Kratzer agreed that she would obtain an updated
restrictions evaluation from her doctor before any testing.
On June 6, 2000, defendant Bellendier told Kratzer she had to pick a machine
and test that day. She refused. On July 5, 2000, IBEW and a Rockwell human
resources manager told her she had 2 options: test for the 408B classification with the
accommodations documented in her file, or obtain an updated restrictions evaluation
and test accordingly. Kratzer did not provide an updated evaluation until over two
years later.
B. Gender Discrimination
Six female Rockwell employees complained of derogatory name-calling,
staring, glaring, intimidating speech, or gesturing by male co-employees. After the
women's complaints, management verbally warned the harassers. In July 2000,
Kratzer learned that a male co-employee had called her vulgar names ("bitch"
"whore") and stated that, "they better not give her that labor grade 8." Three other
women testified that male co-employees sabotaged women's training and testing by
subjecting them to different rules or unfairly altering written tests. A former IBEW
business manager believed that vacancy announcements for promotions
"disappeared" when the most qualified was a female, but conceded this had never
been proved. Finally, six other females stated they experienced unfair treatment:
males were allowed to take breaks while females were reprimanded, females were
"farmed out" to other departments, and females were refused time on different
machines.

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C. Retaliation
Kratzer complained to the Iowa Civil Rights Commission in September 2000.
A company-wide reduction-in-workforce in January 2002 demoted Kratzer two pay
grades, out of the sheet metal fabrication department. Kratzer amended her complaint
in September 2002 to include a claim for retaliation.
II.
A. ADA
In the absence of evidence of direct discrimination, ADA claims are evaluated
by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). First, Kratzer must establish a prima facie case of discrimination: an
ADA-qualifying disability; qualifications to perform the essential functions of her
position with or without a reasonable accommodation; and an adverse action due to
her disability. Id. at 802-04; see also Kincaid v. City of Omaha, 378 F.3d 799, 804
(8th Cir. 2004). Once Kratzer makes a prima facie case, Rockwell must proffer a
legitimate, nondiscriminatory reason for the adverse employment action. See
McDonnell Douglas, 411 at 802. If Rockwell proffers such a reason, Kratzer must
show that it is a pretext. See id. at 803. The district court held that Kratzer failed to
establish a prima facie case, as she could not perform the essential functions of the
job. An employee is qualified for a job when she meets the necessary prerequisites
for the job – training, education, experience – and can perform the essential functions,
with or without reasonable accommodation. Cravens v. Blue Cross and Blue Shield
of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000). The district court focused on
whether Kratzer could perform the essential functions, with or without
accommodation. This court finds Kratzer lacked the requisite training. See Habib,

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279 F.3d at 566 (summary judgment can be affirmed on any ground supported by the
record).
Kratzer does not meet the prerequisites of the 408B job. To satisfy the 408B
criteria, Kratzer needed to train on a sheet-metal-producing machine, then
demonstrate the training by passing the 408B mechanical test. Kratzer, however,
never passed the 408B test. Because she did not satisfy the prerequisites for 408B
classification, she was not qualified.
Kratzer claims she did not train or pass the 408B test, because Rockwell
impeded the interactive process when Bellendier demanded she take the 408B test on
June 6, 2000, without an accommodation. The interactive process is informal and
flexible, enabling both employer and employee to identify the employee's limitations
and accommodations. 29 C.F.R. § 1630.2(o)(3). If the employee needs an
accommodation, the employer must engage in an interactive process. Burchett v.
Target Corp., 340 F.3d 510, 517 (8th Cir. 2003). An employer impedes the process
when: the employer knows of the employee's disability; the employee requests
accommodations or assistance; the employer does not in good faith assist the
employee in seeking accommodations; and the employee could have been reasonably
accommodated but for the employer's lack of good faith. Ballard v. Rubin, 284 F.3d
957, 960 (8th Cir. 2002), quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142,
165 (3d Cir. 1999).
Contrary to Kratzer's assertion, the breakdown in the interactive process was
due to her failure to provide an updated evaluation, not Rockwell's refusal to provide
an accommodation. The "predicate requirement" triggering the interactive process
is the employee's request for the accommodation. Id. A mere assertion that an
accommodation needed is insufficient; the employee must inform the employer of the
accommodation needed. Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212,
1217 (8th Cir. 1999); see generally 29 C.F.R. § 1630, App. § 1630.9.

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Rockwell and Kratzer agreed she would obtain an updated physical evaluation
in order to determine the accommodation needed in the testing. Kratzer did schedule
an appointment with her doctor, yet failed to go. By not obtaining the evaluation,
Kratzer did not request accommodations beyond those documented in her file. Her
statement that she wanted to see her doctor was insufficient; she needed to follow-up
with the appointment. Without the updated evaluation, Rockwell could not provide
an appropriate accommodation. Thus, Kratzer did not test and show her training for
408B, a prerequisite for the classification. An analysis of Rockwell's good faith is
unnecessary as Kratzer failed to request an accommodation. See Phoenixville Sch.
Dist., 174 F.3d at 165.
Kratzer did not establish a prima facie case of disability discrimination, and
summary judgment was thus proper.
B. Sex Discrimination and Harassment
i.
Plaintiffs may prove discrimination in Title VII claims in two ways: with direct
evidence as in the Price Waterhouse approach, or with indirect evidence as in the
McDonnell Douglas analysis. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th
Cir. 2004). Kratzer may proceed under Price Waterhouse if she produces direct
evidence of conduct or statements by persons involved in the decision-making
process, which indicate a discriminatory attitude was more likely than not a
motivating factor in the employer's decision. Price Waterhouse v. Hopkins, 490 U.S.
228, 258 (1989). If there is direct evidence of sex discrimination, the burden rests
with the employer to show that it more likely than not would have made the same
decision without consideration of the illegitimate factor. Id. Evidence of the
employer's motives for the action, and whether the presence of a mixed motives

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defeats the plaintiff's claim, is a trial issue, not intended for summary judgment.
Griffith, 387 F.3d at 735.
Kratzer presented no direct evidence that Rockwell failed to test her based on
gender. If a plaintiff lacks direct evidence, the McDonnell Douglas framework
applies. Id. at 736; McDonnell Douglas, 411 U.S. at 792. The "McDonnell Douglas
framework exists to provide discrimination plaintiffs a way to prove their case when
they do not have 'explicit, inculpatory evidence of discriminatory intent.'" Shannon
v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996), quoting Hutson v. McDonnell
Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995).
Under McDonnell Douglas, Kratzer must establish a prima facie case of sex
discrimination. Id. at 682. She must show: membership in a protected group;
qualification and application for an available position; rejection; and promotion of an
employee similarly situated but not a member of the protected group. Id., citing
Patterson v. McLean Credit Union, 491 U.S. 164, 186-87 (1989). Once Kratzer
makes a prima facie showing, Rockwell must proffer a legitimate, nondiscriminatory
reason for the adverse action. Id. "This is a burden of production not proof. The
defendant need not persuade the court, it must simply provide evidence sufficient to
sustain a judgment in its favor." Krenik v. County of Le Sueur, 47 F.3d 953, 958
(8th Cir. 1995). If Rockwell meets its burden, Kratzer must establish that "the
defendant's proffered reason is pretextual and that intentional discrimination was the
true reason for the defendant's actions." Id., citing St. Mary's Honor Center v.
Hicks, 509 U.S. 502 (1993)).
The district court assumed Kratzer met her prima facie case, holding that there
was a genuine issue of material fact as to whether she was qualified. Pursuant to
McDonnell Douglas, the court then focused on Rockwell's reason for not testing
Kratzer, concluding it was nondiscriminatory. The district court determined Kratzer
failed to rebut the reason as pretextual.

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The district court did not need to apply the full burden-shifting analysis of
McDonnell Douglas. See Habib, 279 F.3d at 566 (summary judgment can be
affirmed on any ground supported by the record). As discussed in the disability-
discrimination section above, Kratzer did not make a prima facie case that she was
qualified. Likewise, Kratzer did not make a prima facie case of sex discrimination
because she was not qualified.
At the prima facie stage of a sex discrimination case, the employee must
demonstrate objective qualifications. Legrand v. Trustees of University of Arkansas
at Pine Bluff, 821 F.2d 478, 481 (8th Cir. 1987). An employee must show that her
qualifications are equivalent to the minimum objective criteria. Wexler v. White's
Fine Furniture, Inc., 317 F.3d 564, 575 (6th Cir. 2003). The threshold criteria are
the plaintiff's physical ability, education, experience in the relevant industry, and the
required general skills. Whitley v. Peer Review Systems, Inc., 221 F.3d 1053, 1055
(8th Cir. 2000) (physical ability); Wexler, 317 F.3d at 576 (education, experience,
and general skills). These qualifications are demonstrated when the employee
"actually performs her job at a level that [meets her] employer's legitimate
expectations." Whitley, 221 F.3d at1055; see also Miller v. Citizens Sec. Group, 116
F.3d 343, 346 (8th Cir. 1997).
Kratzer was not qualified, as she could not objectively perform the functions
of the 408B test. Aside from education, the minimum objective criteria requires the
physical ability to train and perform the 408B test. There is no dispute that Kratzer
could not physically accomplish the 408B test. Kratzer failed to demonstrate that she
was objectively qualified.
Kratzer asserts she satisfied the prima facie burden by reiterating that but for
Rockwell's refusal to give her the accommodation, she was qualified. While the
district court (inconsistently) indulged this assertion for purposes of the sex
discrimination claim, this court finds the argument ineffective. Kratzer presented

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insufficient evidence that she was denied taking the 408B test due to her sex. When
asked whether gender was the reason Rockwell refused to allow her to test for 408B,
Kratzer responded, "I was not allowed to continue my test because the machines were
not fixed, modified for me." She did not state that Rockwell refused to test her or
modify the machines because of her gender. Kratzer's conclusory allegations, are
insufficient to satisfy a prima facie case. See Helfter v. United Parcel Service, Inc.,
115 F.3d 613, 616 (8th Cir. 1997).
ii.
Kratzer also asserts Rockwell fostered a hostile work environment. To
establish a prima facie case of sexual harassment, Kratzer must show: membership
in a protected group; unwelcome harassment; harassment was based on sex; the
harassment affected a term, condition, or privilege of employment; and Rockwell
knew or should have known of the harassment and failed to take proper remedial
action. Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004).
At issue here is the fourth element – whether the complained-of conduct altered
a term, condition, or privilege of her employment. This is a twofold inquiry. First,
the harassment must be sufficiently severe or pervasive to create an "objectively
hostile" work environment. Henthorn v. Capitol Communications, Inc., 359 F.3d
1021, 1026 (8th Cir. 2004). It must be more than merely offensive, immature or
unprofessional; it must be extreme. Id. at 1027, citing Alagna v. Smithville R-II Sch.
Dist., 324 F.3d 975, 980 (8th Cir. 2003). Conduct that does not exceed the threshold
of severity is insufficient to create a prima facie case of sexual harassment. "Title VII
was not designed to create a federal remedy for all offensive language and conduct
in the workplace." Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 967 (8th Cir.
1999). Second, if the victim does not subjectively perceive the environment as
abusive, then the conduct has not altered the conditions of employment. Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).

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Kratzer's hostile work environment claim fails because she stated that she did
not subjectively feel harassed. Though Kratzer cited several instances of offensive
conduct - - male employees made derogatory comments; she was called "bitch" and
"whore;" men received preferable treatment; and male workers stared at the females
while they worked - - an employee's admission that it was not abusive is fatal to the
employee's Title VII sexual harassment claim. Montandon v. Farmland Ind., Inc.,
116 F.3d 355 (8th Cir. 1997); see also Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 271 (2001) (summary judgment affirmed where plaintiff "conceded that [the
employer's conduct] did not bother or upset her"). Kratzer asserts that derogatory
comments were made about her. When questioned whether she heard them, she
replied, "They would never bring it to me because they know I'm a stronger person
and I wouldn't stand there and tolerate anybody - - male, female - - calling me a
name." Kratzer stated a female co-worker told her about the comments two months
after they occurred and Kratzer did not feel harassed.
As Kratzer did not subjectively believe that her working conditions were
altered, she did not establish a prima facie case of hostile work environment; thus
summary judgment was proper.
C. Retaliation
The McDonnell Douglas framework governs the order and allocation of proof
for retaliation claims. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980),
citing McDonnell Douglas, 411 U.S. at 802-04. To establish a prima facie case,
Kratzer must show: a statutorily protected activity; an adverse employment action;
and a causal connection between the two. Manning v. Metro. Life Ins. Co., Inc.,
127 F.3d 686, 692 (8th Cir. 1997). Once the prima facie case is made, Rockwell must
articulate a legitimate, nondiscriminatory reason for its actions. Womack, 619 F.2d
at 1296. Rockwell need not prove the absence of retaliatory motive, only enough to

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dispel the inference of retaliation. Id. The burden then shifts to Kratzer to establish
that the alleged legitimate, nondiscriminatory reason for dismissal was a pretext. Id.
Kratzer has not established a prima facie case of retaliation. She engaged in
a statutorily protected activity – filing a complaint with the Iowa Civil Rights
Commission in September 2000. There is, however, no evidence Rockwell took
adverse employment actions due to the complaint. Kratzer asserts two claims of
adverse employment action: refusal to test her for the 408B classification, and an
offer to test in return for dropping the ICRA complaint. Kratzer does not directly
allege that the reduction-in-workforce was retaliatory, but rather that her demotion
was a result of Rockwell's decision not to test her for 408B, a classification exempt
from the workforce reduction in 2000.
Neither of Kratzer's claims demonstrates an adverse employment action. First,
Kratzer presented no evidence that Rockwell's refusal to test was related to her ICRA
complaint, rather than her failure to provide the updated evaluation. Second,
Rockwell made a settlement offer, the opportunity to test in exchange for dismissing
the ICRA complaint. Generally, evidence of an offer of "valuable consideration in
compromising or attempting to compromise a claim which was disputed as to either
validity or amount, is not admissible. . . ." Fed. R. Evid. 408. Rockwell's proposal
was an offer of valuable consideration, the opportunity to train and test, in order to
settle a disputed claim. Contrary to Kratzer's assertion, her IBEW membership did
not entitle her to test for 408B, as she was not qualified nor had the 407B
classification at the time of the settlement discussion. Kratzer did not establish a
prima facie case of retaliation.

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D. State Claim
Because the Iowa Civil Rights Act mirrors federal law, the analysis above also
disposes of the ICRA claims. Mercer v. City of Cedar Rapids, 308 F.3d 840, 845
(8th Cir. 2002); see also Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989).
III.
Kratzer did not establish a prima facie case of disability or gender
discrimination, as she was not qualified. Her hostile work environment fails, because
she admitted the co-employees' conduct was not subjectively severe. Kratzer's
retaliation claim also fails, as there was no evidence of adverse employment actions
casually related to her ICRA claim. The district court is affirmed.
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