Ma v. Nucor-Yamato Steel Company

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

HONGWEI “TERRY” MA PLAINTIFF

v. Case No. 3:19-cv-00344-KGB

NUCOR CORPORATION f/k/a Nucor Steel,

Nucor Arkansas, and/or Nucor Steel Arkansas DEFENDANT

OPINION AND ORDER

Before the Court is defendant Nucor Corporation f/k/a Nucor Steel, Nucor Arkansas,

and/or Nucor Steel Arkansas’s (“Nucor”)1 motion for summary judgment (Dkt. No. 44). Plaintiff

Hongwei “Terry” Ma has responded to Nucor’s motion for summary judgment (Dkt. No. 53).

Nucor has filed a reply in support of its motion for summary judgment (Dkt. No. 59).

Also before the Court is Nucor’s motion to strike portions of Ms. Ma’s statement of

material facts in dispute and summary judgment exhibits (Dkt. No. 60). Ms. Ma has responded to

Nucor’s motion to strike (Dkt. No. 64). Nucor has replied in support of its motion to strike (Dkt.

No. 66).

For the following reasons, the Court grants, in part, and denies, in part, defendant Nucor’s

motion to strike and grants defendant Nucor’s motion for summary judgment (Dkt. Nos. 60; 44).

I. Motion To Strike

Nucor filed a statement of undisputed material facts in support of its motion for summary

judgment (Dkt. No. 46). Ms. Ma filed a statement of material facts in dispute in which she

responded to Nucor’s statement of undisputed material facts (Dkt. No. 55). To determine whether

1 Ms. Ma initially also named as defendants Nucor-Yamato Steel Company (Limited

Partnership), and its General Partners, Nucor Holding Corporation and Yamato Holding

Corporation (Dkt. No. 1). Ms. Ma moved to dismiss those separate defendants from this action,

and this Court granted that motion (Dkt. Nos. 6; 7).

there are any genuine issues of material fact in dispute in this matter, the Court will first consider

Nucor’s motion to strike portions of Ms. Ma’s statement of material facts in dispute and summary

judgment exhibits (Dkt. No. 60). Nucor brings its motion under Federal Rules of Civil Procedure

56 and Local Rule 56.1 of the United States District Court for the Eastern and Western Districts

of Arkansas (Id., ¶ 3). Ms. Ma has responded in opposition to the motion to strike (Dkt. No. 64).

Nucor has replied in support of its motion to strike (Dkt. No. 66).

A. Legal Standard

Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading . .

. any redundant, immaterial, impertinent, or scandalous matter.” An allegation contained in a

pleading is immaterial if it “has no essential or important relationship to the claim for relief or the

defenses being pleaded.” CitiMortgage, Inc. v. Just Mortg., Inc., Case No. 4:09-cv-1909 DDN,

2013 WL 6538680, at *7 (E.D. Mo. Dec. 13, 2013) (internal quotations omitted). An allegation is

impertinent if it “consists of statements that do not pertain, and are not necessary, to the issues in

question.” Id. While Rule 12(f) is understood to provide courts with “liberal discretion,” the

Eighth Circuit Court of Appeals has stated that “striking a party’s pleadings is an extreme measure,

and, as a result, we have previously held that ‘[m]otions to strike under Fed. R. Civ. P. 12(f) are

viewed with disfavor and are infrequently granted.’” Stanbury Law Firm v. IRS, 221 F.3d 1059,

1063 (8th Cir. 2000) (quoting Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)).

Local Rule 56.1(b) of the United States District Court for the Eastern and Western Districts

of Arkansas requires a non-moving party to supply the Court with a statement of material facts “as

to which it contends a genuine issue exists to be tried.” See Jackson v. United Parcel Serv., Inc.,

643 F.3d 1081, 1088 (8th Cir. 2011). Federal Rule of Civil Procedure 56(c) requires that “[a] party

asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing

to particular parts of materials in the record, including depositions, documents, electronically

stored information, affidavits or declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the

materials cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Federal

Rule of Civil Procedure 56(c)(2) states that “[a] party may object that the material cited to support

or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ.

P. 56(c)(2). Federal Rule of Civil Procedure 56(c)(4) states that “[a]n affidavit or declaration used

to support or oppose a motion must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to testify on the matters

stated.” Fed. R. Civ. P. 56(c)(4).

Under Federal Rule of Civil Procedure 56(e), “[i]f a party fails to properly support an

assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly

support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant

summary judgment if the motion and supporting materials—including the facts considered

undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order.” Fed.

R. Civ. P. 56(e).

B. Ms. Ma’s Statements Of Material Facts In Dispute

Nucor seeks to strike several of Ms. Ma’s statements of material facts in dispute that are

not supported by any citations to the record that would dispute the veracity of Nucor’s statement

of fact. Specifically, Nucor seeks to strike Ms. Ma’s paragraphs 11, 13, 14, 16, 18, 19, 20, 21, 22,

23, 28, 34, 35, 38, 40, 41, and 42. Nucor contends that Ms. Ma’s statements amount to nothing

more than “pure speculation” which is inappropriate for a statement of material facts.

Additionally, Nucor maintains that Nucor and the Court should not have to search the record to

look for factual disputes (Id. (citing Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1033

(8th Cir. 2007); Brannon v. Luco Mop Co., 521 F.3d 843, 847 (8th Cir. 2008)). Ms. Ma responds

that, when Federal Rule of Civil Procedure 56 is “read closely,” she is in compliance with the rule

(Dkt. No. 64, ¶ 3).

Having examined the paragraphs Nucor seeks to strike, this Court concludes that Ms. Ma

has failed to comply with Federal Rule of Civil Procedure 56(c)(1) in regard to paragraphs 11, 13,

14, 16, 18, 19, 20, 21, 22, 23, 28, 34, 35, 38, 40, 41, and 42, which include no citations to record

evidence. The Court, therefore, grants Nucor’s motion and strikes these paragraphs of Ms. Ma’s

statement of material facts in dispute (Dkt. No. 55, ¶¶ 11, 13, 14, 16, 18, 19, 20, 21, 22, 23, 28, 34,

35, 38, 40, 41, 42).

C. Ms. Ma’s Exhibits

Nucor also seeks to strike portions of Ms. Ma’s affidavit because it asserts these portions

of the affidavit are replete with legal conclusions and statements for which Ms. Ma has no personal

knowledge (Dkt. No. 60, ¶ 4). Additionally, Nucor moves to strike four other exhibits Ms. Ma

attaches to her response to the motion for summary judgment because, according to Nucor, the

exhibits are not authenticated by and attached to an affidavit made on personal knowledge in order

to meet the requirements of Rule 56 (Id.).

“The district court must base the determination regarding the presence or absence of a

material issue of factual dispute on evidence that will be admissible at trial.” Tuttle v. Lorillard

Tobacco Co., 377 F.3d 917, 923 (8th Cir. 2004). Federal Rule of Civil Procedure 56(c)(2) states

that “[a] party may object that the material cited to support or dispute a fact cannot be presented

in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Federal Rule of Civil

Procedure 56(c)(4) states that “[a]n affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

The Court has reviewed Ms. Ma’s affidavit (Dkt. No. 53-1). In paragraphs one through

four of the affidavit Ms. Ma generally recounts what she allegedly was told by an employment

counselor about what work experience she should include in her resumé. While this evidence is

hearsay, it may be presented in a form that would be admissible evidence at trial. Accordingly,

the Court denies the motion to strike paragraphs one through four of Ms. Ma’s affidavit (Id., ¶¶ 1-

4). The Court strikes paragraph nine of Ms. Ma’s affidavit because it states a legal conclusion (Id.,

¶ 9).

Nucor moves to strike exhibits 7A, 8A, 9A, and 10A to Ms. Ma’s response to the motion

for summary judgment (Dkt. Nos. 53-7, 53-10, 53-12, 53-14). Nucor argues that the exhibits are

not authenticated by and attached to an affidavit made on personal knowledge setting forth facts

in order to be admissible in evidence as required by Federal Rule of Civil Procedure 56 (Dkt. No.

61, at 4). Nucor maintains that the exhibits “appear to be Plaintiff’s personal rebuttal of testimony

from various depositions of Defendant’s witnesses.” (Dkt. No. 61, at 4). Further, Nucor asserts

that the exhibits are not properly authenticated, lack foundation, are conclusory, and are

inadmissible hearsay (Dkt. No. 61 (citing Fed. R. Evid. 602, 701, 802, 901)). The Court grants

Nucor’s motion to strike Ms. Ma’s exhibits 7A, 8A, 9A, and 10A because the exhibits are not

attached to an affidavit or signed declaration in order to be sufficient evidence to support Ms. Ma’s

response to Nucor’s motion for summary judgment. See Fed. R. Civ. P. 56(c); see also Tuttle, 377

F.3d at 923.

II. Factual Background

The following facts are taken from the parties’ filings, the Court having ruled on Nucor’s

motion to strike.

Nucor requires its teammates, supervisors, and managers to participate in interactive

training sessions on its discrimination and harassment policies (Dkt. No. 55, ¶ 2). Ms. Ma’s resumé

that was submitted to Nucor listed her last employer as Wuhan Iron and Steel (Group) Corporation

(“WISCO”) in China but failed to list her actual most recent employer, United States Steel

Corporation (“U.S. Steel”) (Id., ¶ 4). Nucor’s employment application asked applicants to list their

“work experience, starting with your most recent job held,” and again Ms. Ma listed WISCO as

her then-recent employer but failed to list her actual most recent employer, U.S. Steel.

Unbeknownst to Nucor at the time because of the omission of the information on her employment

application and resumé, Ms. Ma had worked for one other employer in the United States after

WISCO and before joining Nucor. Ms. Ma worked for U.S. Steel for approximately four months

before both parties agreed to Ms. Ma’s exit from U.S. Steel (Id., ¶ 7) . There is no law requiring

a prospective employee to list all work history (Id.).

Ms. Ma received employment training at an employment center called “WorkOne” when

she was searching for the position at Nucor and was told that it was not necessary to include all of

her work experience on her resumé (Dkt. No. 53-1, ¶ 1). Ms. Ma determined that it was not

necessary to include a three-month irrelevant work experience in which Nucor has no similar

production line in Electrolytic Tinning Lines (Id., ¶ 2). During Nucor interviews, interviewees did

not ask Ms. Ma questions about her recent jobs but focused on Ms. Ma’s technical skills in the

steel field (Id., ¶ 4).

Ms. Ma did not plan a lawsuit with her former employer U.S. Steel when she applied and

interviewed for the job at Nucor in January 2018 (Id., ¶ 5). At the time Ms. Ma applied for the job

at Nucor, the Equal Employment Opportunity Commission (“EEOC”) was mediating her case with

U.S. Steel (Id.). According to Ms. Ma, the EEOC had advised her, in March 2018, that U.S. Steel

was willing to pay more money, but Ms. Ma rejected the settlement (Id.). After Ms. Ma was

terminated by Nucor in September 2018, Ms. Ma filed a lawsuit against U.S. Steel which ended in

a settlement (Id., ¶ 6).2

Ms. Ma’s first interview with Nucor was conducted by Chad Gentry, Chief Metallurgist

for Nucor, in January 2018 over the telephone (Dkt. No. 55, ¶ 3). Multiple Nucor teammates

interviewed Ms. Ma, and based on representations of her education, work history, and experience,

as detailed in her interview, resume, and employment application, Nucor extended an offer of

employment to Ms. Ma to work as a metallurgist on February 6, 2018 (Dkt. Nos. 55, ¶ 8; 44-7, at

2). At the time of Ms. Ma’s hire, Nucor was clearly aware of Ms. Ma’s sex, Chinese heritage, and

Canadian citizenship, as it knew and agreed to sponsor her visa in order for her to be authorized to

work for Nucor in the United States (Dkt. No. 55, ¶ 9).

In accordance with Nucor’s policies and practices, after 90 days of employment Nucor

conducted a peer review where Ms. Ma was assessed by her fellow metallurgists in several areas

pertinent to her job performance (Id., ¶ 10). Six Nucor teammates gave Ms. Ma feedback through

the peer review process during May and June 2018, in the same manner that all other employees

are reviewed though the peer review process (Id., ¶ 11). The feedback provided by Ms. Ma’s peers

identified issues including that Ms. Ma lacks interpersonal skills, she is impatient, she needs to

2 See Ma v. United States Steel Corp., Case No. 2:18-cv-438 (N.D. Ind. filed Nov. 19,

2018).

listen better and see the big picture, and she needs to trust what others are telling her (Id., ¶ 12).

Ms. Ma was upset over the results of the peer review and disagreed with the feedback and

comments given to her by her fellow teammates (Id., ¶ 13). Ms. Ma’s 90-day peer review states,

“Performance is acceptable.” (Dkt. No. 53-19, at 3). Ms. Ma’s 90-day self-review states,

“Performance is outstanding, superior, and stands out.” (Id., at 1)

After Ms. Ma received negative feedback through the peer review process, Ms. Ma began

to complain of alleged inappropriate comments and actions by Mr. Gentry (Id., ¶ 14). Ms. Ma

reported Mr. Gentry’s alleged “familiar and inappropriate” behavior to a member of Nucor

management in early August 2018 (Id., ¶ 15). Ms. Ma’s allegations came principally from the

time that she shared an office with Mr. Gentry (Id., ¶ 16). Mr. Gentry invited Ms. Ma to a gathering

on a non-working day at his home; however, this gathering was a get-together to which Mr. Gentry

invited all of the Nucor metallurgists and which many of the metallurgists attended (Id., ¶ 17). Mr.

Gentry confirmed the only instance where he would have invited Ms. Ma to dinner was including

her in an invitation that was also sent to other Nucor employees (Id., ¶ 18). The “gifts,” “business

suits,” and “business shirts” that Ms. Ma alleges Mr. Gentry gave her were Nucor shirts that were

also given to other male and female teammates in advance of trips to other Nucor affiliates (Id., ¶

19). Any conversations Mr. Gentry initiated about his family came about because they shared an

office space and were in close proximity and because of Mr. Gentry’s attempts to build rapport

with a new member of his work team; these conversations would have been general in nature and

did not discuss Mr. Gentry’s marriage (Id., ¶ 20).

On or around August 13, 2018, immediately after Ms. Ma made her allegations, Nucor

conducted a full investigation into Mr. Gentry’s alleged behavior (Id., ¶ 21). Nucor management,

including Nucor’s General Manager Mary Emily Slate, had discussions with Mr. Gentry and

several Nucor teammates with whom Mr. Gentry had worked closely over the course of his

employment (Id., ¶ 22). After a full review of the investigative facts, Nucor determined that Ms.

Ma’s allegations were a result of her misunderstanding the literal or figurative meaning of the

words used by Mr. Gentry or Ms. Ma not understanding the context of interactions or conversations

(Id., ¶ 23).

On August 16, 2018, Nucor management discussed the results of the investigation with

Ms. Ma. (Id., ¶ 24). Although the investigation revealed no evidence of wrongdoing, Nucor

immediately changed Ms. Ma’s supervisor from Mr. Gentry to Dan Larson, Technical Services

Manager (Id., ¶ 25). In a meeting with Mr. Larson and Keith Williams, Cold Mill Manager at

Nucor, the job expectations for Ms. Ma moving forward were set and reviewed with Ms. Ma (Id.,

¶ 26). During the meeting, it was also agreed that Ms. Ma was to continue to work on patience,

active listening, and developing relationships with her peers by learning about others and sharing

her history and experiences in order to improve her performance and teamwork (Id., ¶ 27).

On or about July 2, 2018, Ms. Ma walked into the Hot Mill Lab while not wearing required

personal protective equipment (“PPE”) (Id., ¶ 28). There was a sign on the door leading to the Hot

Mill Lab telling teammates not to enter without PPE (Id., ¶ 29). A teammate in the Hot Mill Lab

told Ms. Ma that she needed PPE and told her not to go anywhere while the teammate obtained

the PPE for her (Id., ¶ 30). No other employees were wearing a hard hat (Id.). When the teammate

returned, Ms. Ma had left without wearing any PPE (Id., ¶ 31). This incident was reported the

following day by three Nucor teammates (Id., ¶ 32). On or about August 27, 2018, Ms. Ma was

seen walking through the Coil Yard without proper PPE (Id., ¶ 33).

During the investigation into Mr. Gentry’s alleged behavior, a Nucor teammate reported

that Ms. Ma grabbed the teammate by the shoulders and kicked her in the hip on or around August

9, 2018 (Id., ¶ 34). Ms. Ma also asked this teammate multiple times: “Why are you so fat?” and

“Can’t you lose weight?” (Id., ¶ 35). Ms. Ma was counseled for this inappropriate behavior (Id.).

On or about August 27, 2018, Nucor learned that Ms. Ma’s last place of employment was

U.S. Steel (Id., ¶ 36). Ms. Ma had not listed this employment on her resumé, nor had she listed it

on her employment application when specifically prompted, nor did she mention it during her

employment interviews with Mr. Gentry and others (Id., ¶ 37). When Ms. Ma was confronted by

Ms. Slate about this omission from her employment history, Ms. Ma initially denied that she

worked at U.S. Steel (Id., ¶ 38). Eventually, Ms. Ma did admit that she worked for U.S. Steel, but

she refused to provide Nucor with any information relating to who she worked for, who she worked

with, or about her employment with or separation from U.S. Steel (Id., ¶ 39). Ms. Ma was later

limited by her settlement agreement with U.S. Steel to stating that she left by agreement (Id.). Ms.

Ma purposely omitted this critical information from her employment application and resumé

because she was terminated from U.S. Steel after only working there for several months (Id., ¶ 40).

Ms. Slate made the decision to terminate Ms. Ma’s employment because of the integrity issues

related to her failure to disclose her former employer (Id., ¶ 41). Nucor terminated Ms. Ma’s

employment on September 10, 2018 (Id., ¶ 42).

On or about February 21, 2019, Ms. Ma filed a Charge of Discrimination with the EEOC

against Nucor, alleging discrimination based on sex, national origin, age, and retaliation (Dkt. Nos.

2, ¶ 33; 14-1).

III. Legal Standard

Summary judgment is appropriate if there is no genuine issue of material fact for trial.

UnitedHealth Grp. Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017) (citing

Fed. R. Civ. P. 56). Summary judgment is proper if the evidence, when viewed in the light most

favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the

defendant is entitled to entry of judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “In ruling on a motion for summary judgment ‘[t]he district court must base the

determination regarding the presence or absence of a material issue of factual dispute on evidence

that will be admissible at trial.’” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 923-24 (8th Cir.

2004) (internal citations omitted). “Where the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no genuine issue for trial.” Johnson Reg’l

Med. Ctr. v. Halterman, 867 F.3d 1013, 1016 (8th Cir. 2017) (quoting Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A factual dispute is genuine if the evidence

could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, International

Brothers of Teamsters, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dispute

is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative

under the prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989) (citation

omitted).

However, parties opposing a summary judgment motion may not rest merely upon the

allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial

burden is on the moving party to demonstrate the absence of a genuine issue of material fact.

Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that

there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366

(8th Cir. 1997). “The evidence of the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation

omitted).

Importantly, “[t]here is no ‘discrimination case exception’ to the application of summary

judgment, which is a useful pretrial tool to determine whether any case, including one alleging

discrimination, merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)

(en banc) (citing Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)). “Although

employment discrimination cases are ‘often fact intensive and dependent on nuance in the

workplace, they are not immune from summary judgment.’” Trierweiler v. Wells Fargo Bank,

639 F.3d 456, 459 (8th Cir. 2011) (quoting Fercello, 612 F.3d at 1077). “An employer is entitled

to judgment as a matter of law if the record conclusively reveal[s] some other, nondiscriminatory

reason for the employer’s decision.” Ross v. Kan. City Power & Light Co., 293 F.3d 1041, 1047

(8th Cir. 2002) (internal quotations and citations omitted).

IV. Analysis

Ms. Ma brings this action against Nucor alleging age discrimination; sex discrimination;

discrimination based on her gender and heritage or race; retaliation; and violation of state laws on

discrimination (Dkt. No. 29, ¶¶ 1, 18-63). Ms. Ma alleges that Nucor is subject to vicarious

liability for the actionable hostile work environment created by Nucor’s employees and

management personnel (Id., ¶ 38). Ms. Ma sues Nucor pursuant to the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; Title VII of the Civil Rights Acts of 1964,

as amended (“Title VII”), 42 U.S.C. § 2000e et seq.; and the Arkansas Civil Rights Act (“ACRA”),

Arkansas Code Annotated § 16-123-107, et seq. (Id., ¶¶ 11-15).

A. Age Discrimination

Ms. Ma stipulates that age was not a factor in her termination and concedes her

discrimination claim (Dkt. No. 54, at 3). Accordingly, the Court grants Nucor’s motion for

summary judgment on Ms. Ma’s ADEA claim.

B. Sexual Harassment

There are two types of sexual harassment claims under Title VII: (1) quid pro quo

harassment, “where an employee’s submission to or rejection of a supervisor’s unwelcome sexual

advances is used as the basis for employment decisions[;]” and (2) “hostile work environment

harassment, where ‘the workplace is permeated with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’” Tenge v. Phillips Modern Ag Co., 446 F.3d 903,

908 (8th Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “Sexual

harassment is quid pro quo if a tangible employment action follows the employee’s refusals to

submit to a supervisor’s sexual demands.” Henthorn v. Capitol Commc'ns, Inc., 359 F.3d 1021,

1026-27 (8th Cir. 2004) (citing Burlington Indus. v. Ellerth, 524 U.S. 742, 752 (1998)).

In this case, Ms. Ma does not bring a quid pro quo sexual harassment claim because she

does not allege that when she rejected Mr. Gentry’s alleged sexual advances that she suffered a

tangible employment action as a result. Further, under the facts alleged in the record before the

Court, Mr. Gentry was not Ms. Ma’s supervisor at the time of her termination and was not involved

in Nucor’s decision to terminate Ms. Ma. Accordingly, the Court will analyze Ms. Ma’s sexual

harassment claim as a hostile work environment claim.

To establish a prima facie case of hostile work environment harassment, Ms. Ma must

show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome

harassment; (3) that the harassment was based on her membership in the protected group; and (4)

that the harassment affected a term, condition, or privilege of her employment. Clay v. Credit

Bureau Enters., Inc., 754 F.3d 535, 540 (8th Cir. 2014). She must also demonstrate that a

supervisor caused the harassment. See Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194-

95 (8th Cir. 2006).

Ms. Ma asserts that she was sexually harassed by her supervisor Mr. Gentry. Even if Ms.

Ma could meet the first three elements of the prima facie case, to establish the fourth element, Ms.

Ma must demonstrate that the harassment was “severe or pervasive enough to create an objectively

hostile or abusive work environment” and that she subjectively believed that her working

conditions had been altered. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

Harassment “standards are demanding—to be actionable, conduct must be extreme and not

merely rude or unpleasant.” Alagna v. Smithville R–II Sch. Dist., 324 F.3d 975, 980 (8th Cir.

2003). More than a few isolated incidents are required, and the alleged harassment must be so

intimidating, offensive, or hostile that it poisoned the work environment. Scusa v. Nestle U.S.A.

Co., 181 F.3d 958, 967 (8th Cir. 1999). Ms. Ma must prove that the workplace was “permeated

with discriminatory intimidation, ridicule, and insult.” Harris, 510 U.S. at 21. Courts consider

the “totality of the circumstances” to determine whether a work environment is hostile or abusive.

Baker v. John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004). For example, courts consider

“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.” Harris, 510 U.S. at 23.

The Court has examined all of the record evidence. Construing the record evidence in the

light most favorable to Ms. Ma, she alleges the following to support her claim of a hostile work

environment: (1) that Mr. Gentry invited her to dinner; (2) that Mr. Gentry invited her to his house;

(3) that Mr. Gentry asked for her body size; (4) that Mr. Gentry gave her gifts; (5) that Mr. Gentry

had a key to her apartment;3 (6) that Mr. Gentry invited her to lunch on a weekend; (7) that Mr.

Gentry talked to Ms. Ma about his allegedly failing marriage; (8) that Mr. Gentry asked Ms. Ma

“[C]an you make me happy?”; and (9) that Mr. Gentry said to Ms. Ma “we make a good couple.”

Ms. Ma reported to a co-worker that Mr. Gentry was in love with her (Dkt. No. 53-13, at 17).

When Ms. Ma reported some of these allegations to General Manager Slate, Ms. Slate

ordered an investigation. The investigation revealed that Mr. Gentry did in fact invite Ms. Ma to

a gathering on a non-working day at his home; however, this gathering was a get-together to which

Mr. Gentry invited all of the Nucor metallurgists and which many of the metallurgists attended

(Dkt. No. 55, ¶ 17). Mr. Gentry confirmed the only instance where he would have invited Ms. Ma

to dinner was including her in an invitation that was also sent to other Nucor employees (Id., ¶ 18).

The “gifts,” “business suits,” and “business shirts” that Ms. Ma alleges Mr. Gentry gave her were

Nucor shirts that were also given to other male and female teammates in advance of trips to other

Nucor affiliates (Id., ¶ 19). Any conversations Mr. Gentry initiated about his family came about

because they shared an office space and were in close proximity and because of Mr. Gentry’s

attempts to build rapport with a new member of his work team (Id., ¶ 20).

The following exchange occurred when Ms. Ma was asked at her deposition about what

about Mr. Gentry’s behavior was sexually harassing:

Q You said that Mr. Gentry invited you to dinner soon after you were hired

and you thought that was harassing? Why – why did you think that was harassing?

3 At her deposition, Ms. Ma testified that Mr. Gentry offered to bring Ms. Ma the key to

the apartment that Nucor had obtained for her when she moved to Arkansas on a Sunday and to

show her around the area before she began work on Monday. Ms. Ma declined Mr. Gentry’s offer

and asked Mr. Gentry to leave the key at the plant’s security shack for her to pick it up (Dkt. No.

53-6, at 119-120). Mr. Gentry testified that he complied with Ms. Ma’s wishes. Mr. Gentry

testified at his deposition that he had the key to Ms. Ma’s apartment maybe two days because the

person who normally keeps the keys was out of town. Mr. Gentry testified that he did not retain a

copy of the key to Ms. Ma’s apartment (Dkt. No. 53-11, at 14-15). Ms. Ma has not offered any

evidence to the contrary.

A No. I – I – I said it is harassing. I just say there’s one place where he invited

me to go to dinner. And he said just you go own your own. Just wait there. Then

I didn’t go. I said I do not want go dinner because it’s a rural area. At the night

when I come to my apartment then I’m scared. That’s why I do not go for dinner.

Q Did you – did you think that Mr. Gentry was inviting you to dinner because

he was tying to pursue you sexually?

A I – I – I just rejected it because nothing happened. I don’t know what he

want me to do. I just reject it.

Q Okay. So you don’t know if it had anything to do with – with sex – why he

invited you to dinner?

A It did happen. Why I cannot say happening thing, right?

Q But just – I guess – I mean the fact that he invited you to dinner, do you

think that was offensive sexually?

A I think it’s not a very – very improper. I do not want to go dinner with any

person. That’s not – it doesn’t make sense why.

Q You also said that Mr. Gentry at one point in July of 2018, that he invited

you to a party at his house, to which you did not reply. Did you think that was

offensive sexually in some way?

A Yeah. I think you choose the partial things that what I talk. That thing is

for the party about all the teammates at his house.

Q Yeah. I didn’t understand the first part of your answer. Can you repeat

what you said?

A You talk about July? July?

Q Yes?

A They invite all the teammates together.

* * *

Q All right. Well, let’s – tell me then. Let’s testify. Tell me whether you

thought this invitation to a party at his house along with other teammates – if you

thought that was offensive?

A Because – because I just think offensive. I want to explain to you. Because

of he talk with me, he want invited me for lunch on weekend. But it never

happened. And he talked with at least two or three times. But – I – I – I just tell

the truth. That is really he said he want to invite me for lunch on Saturday or

Sunday. And then he – this time he invited a older employee – a older teammate

to his house. I feel safe and I respect him also. You know. He’s my boss. That’s

why I went there.

* * *

Q And so you thought it was sexual in nature the way he asked you about your

shirt size?

A No. He – I – I thought – it’s not I thought, it’s the fact he try to please me.

He tried to build a relationship.

(Dkt. No. 44-22, at 16-19).

The Court concludes that, considering the record evidence in the light most favorable to

Ms. Ma, she fails to meet the high bar of establishing a hostile work environment sufficient to

defeat Nucor’s motion for summary judgment on this claim. Compared to other cases in which

the Eighth Circuit Court of Appeals has found the alleged harassing conduct did not constitute

gender discrimination, this Court determines that the harassment Ms. Ma alleges in this case, even

if true, does not create an actionable hostile work environment claim. See Anderson v. Fam. Dollar

Stores of Ark., Inc., 579 F.3d 858, 862 (8th Cir. 2009) (finding that the plaintiff failed to establish

a hostile work environment claim where a supervisor had rubbed the employee’s back and

shoulders, called her “baby doll,” accused her of not wanting to be one of his girls, suggested once

in a long-distance phone call that she should be in bed with him, and insinuated that she could go

farther in the company if she got along with him); LeGrand v. Area Res. for Cmty and Human

Servs., 394 F.3d 1098, 1100-03 (8th Cir. 2005) (finding that the plaintiff failed to establish a hostile

work environment claim where the plaintiff asserted that a harasser asked plaintiff to watch

pornographic movies and to masturbate together, suggested that the plaintiff would advance

professionally if the plaintiff caused the harasser to orgasm, kissed the plaintiff on the mouth,

grabbed the plaintiff’s buttocks, brushed the plaintiff’s groin, reached for the plaintiff’s genitals,

and briefly gripped the plaintiff’s thigh); Alagna, 324 F.3d at 980 (holding that a male teacher’s

touching a female teacher, telling her that he loved her, and acting inappropriately for two years

was not sufficiently severe to satisfy a claim for hostile work environment sexual harassment).

Further, the Court finds that Ms. Ma has not established that Nucor knew of the harassment

and failed to take proper remedial action. Ms. Ma’s complaints about Mr. Gentry were

immediately investigated. After the investigation, Nucor management discussed the results of the

investigation with Ms. Ma (Dkt. No. 55, ¶ 24). Although Nucor concluded the investigation

revealed no evidence of wrongdoing, Nucor immediately changed Ms. Ma’s supervisor from Mr.

Gentry to Dan Larson, Technical Services Manager (Id., ¶ 25). In a meeting with Mr. Larson and

Mr. Williams, the job expectations for Ms. Ma moving forward were set and reviewed with Ms.

Ma (Id., ¶ 26).

“If an employer responds to harassment with prompt remedial action calculated to end it,

then the employer is not liable for the harassment.” Alvarez v. Des Moines Bolt Supply, Inc., 626

F.3d 410, 421 (8th Cir. 2010). “Factors in assessing the reasonableness of remedial measures may

include the amount of time that elapsed between the notice and remedial action, the options

available to the employer, . . . and whether or not the measures ended the harassment.” Carter v.

Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (citations omitted).

Viewing the record evidence in favor of Ms. Ma, nothing in the record permits a reasonable

inference of severe and pervasive harassment, and the Court determines that no reasonable fact

finder could find in favor of Ms. Ma on her hostile work environment harassment claim.

C. Gender, Race, And National Origin Discrimination Under Title VII

And The ACRA

The Court understands Ms. Ma to assert claims of gender and race discrimination under

Title VII and the ACRA. The Court also understands Ms. Ma to assert a claim of national origin

discrimination based on her Chinese “heritage” (Dkt. Nos. 29, ¶ 51; 14-1). “The term ‘national

origin’ on its face refers to the country where a person was born, or, more broadly, the country

from which his or her ancestors came.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).

“Title VII makes it ‘an unlawful employment practice for an employer . . . to discharge any

individual . . . because of such individual’s . . . national origin.’” Guimaraes v. SuperValu, Inc.,

674 F.3d 962, 972 (8th Cir. 2012) (quoting 42 U.S.C. § 2000e-2(a)(1)).

1. Legal Standard

Ms. Ma purports to state gender, race, and national origin discrimination claims under Title

VII and the ACRA. The same standard applies to both discrimination claims brought under Title

VII and the ACRA. See McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 8555, 860 (8th Cir.

2009) (applying the same standards to Title VII and ACRA claims). Ms. Ma can establish a prima

facie claim of discrimination either by providing direct evidence of discrimination or by creating

an inference of unlawful discrimination under the three-step analysis set out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-05 (1973). Jones v. City of St. Louis, 825 F.3d 476, 480 (8th

Cir. 2016); Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012).

Direct evidence is evidence “showing a specific link between the alleged discriminatory

animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that

an illegitimate criterion actually motivated” the adverse employment action. Torgerson v. City of

Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011) (quoting Griffith v. City of Des Moines, 387 F.3d

733, 736 (8th Cir. 2004)).

Thus, “direct” refers to the causal strength of the proof, not whether it is

“circumstantial” evidence. A plaintiff with strong direct evidence that illegal

discrimination motivated the employer’s adverse action does not need the three-

part McDonnell Douglas analysis to get to the jury, regardless of whether his strong

evidence is circumstantial.

Id. However, “if the plaintiff lacks evidence that clearly points to the presence of an illegal motive,

he must avoid summary judgment by creating the requisite inference of unlawful discrimination

through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Id.

Under the McDonnell Douglas analysis, the elements of a prima facie discrimination claim

are: (1) the employee belonged to a protected class; (2) she was qualified to perform her job; (3)

she suffered an adverse employment action; and (4) she was treated differently from similarly

situated employees who do not belong to the protected class. Hesse v. Avis Rent A Car System,

Inc., 394 F.3d 624, 631 (8th Cir. 2005). The fourth element of a prima facie discrimination case

also can be met if the employee provides “some other evidence that would give rise to an inference

of unlawful discrimination.” Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003).

Once an employee establishes a prima facie case, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its actions, and then shifts back to the employee to show

that the employer’s reason was pretextual. Hesse, 394 F.3d at 631.

2. Analysis

a. Direct Evidence

At her deposition in response to a question about whether she believed anyone at Nucor

talked negatively about the fact that she was female, Ms. Ma discussed reporting Mr. Gentry’s

harassment to Ms. Slate (Dkt. No. 53-6, at 65-66). Ms. Ma has not come forward with direct

evidence of gender discrimination by those involved in the decision to terminate her employment

(Dkt. No. 53-6, at 65-66).

Also at her deposition, in response to a question about whether anyone ever said anything

bad about the fact that she was Chinese, Ms. Ma testified that on one occasion a co-worker, Mark

DiGirolamo, allegedly stated to her as they were walking through the parking lot, “you Chinese

cause the problem here.” (Dkt. No. 53-6, at 58-59). “[D]irect evidence does not include stray

remarks in the workplace, statements by non-decisionmakers, or statements by decisionmakers

unrelated to the decisional process itself.” Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th

Cir. 2007) (citing Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th

Cir. 1998) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989))). Here, the decision

to terminate Ms. Ma was made by Ms. Slate, not by Mr. DiGirolamo. Accordingly, Ms. Ma has

not presented direct evidence of race or national origin discrimination.

b. Legitimate Job Expectations

Nucor does not dispute that Ms. Ma can meet the first and the third prongs of her prima

facia case of discrimination. Nucor disputes, however, that Ms. Ma can establish that she was

meeting its legitimate job expectations (Dkt. No. 45, at 27-28). Nucor asserts that the record

evidence establishes that Ms. Ma failed to meet its legitimate job expectations because she omitted

critical information about her background and experience from her resumé and job application

(Id., at 27). Nucor contends that, if it had been aware of Ms. Ma’s prior employment with U.S.

Steel at the time it interviewed Ms. Ma, it would have been able to ask more questions about her

brief time there that would have been directly relevant to Nucor’s legitimate job expectations and

also Nucor would have been able to inquire about the reasons for her termination (Id.). Nucor

represents that, based on that information, Nucor likely would not have hired Ms. Ma, and

ultimately Ms. Ma’s employment was terminated because of these integrity issues (Id). Nucor

also argues that Ms. Ma’s peer review revealed that Ms. Ma had several issues related to integrity,

teamwork, and communication (Id.). Nucor contends that Ms. Ma was not meeting expectations

in these fundamental areas (Id.). Additionally, Nucor asserts that Ms. Ma was not meeting

expectations with respect to safety because Ms. Ma had on two separate occasions ignored signage

and neglected to wear PPE (Id.).

Ms. Ma counters that her 90-day peer review criticized her communication and social skills

but stated her job performance was “acceptable.” (Dkt. No. 53-19, at 3). Ms. Ma also contends

that Nucor complaining about her omitting a short-term employer from her job history is Nucor

justifying retaliation for her complaints against Mr. Gentry for sexual harassment (Dkt. No. 54, at

11). Ms. Ma asserts that her separation from U.S. Steel was by agreement (Id.). Ms. Ma also

contends that the failure to list a former employer does not violate any law (Id., at 12). Ms. Ma

asserts in her brief that she disputes the safety violations, but she does not point to evidence in the

record to support her denial of the safety violations (Dkt. No. 54, at 11). To the contrary, Ms. Ma

testified at her deposition that, on July 2, 2018, she entered the Hot Mill Lab while not wearing a

hard hat (Dkt. Nos. 53-6, at 84). Ms. Ma does not deny that, on August 27, 2018, she was again

seen walking through the Coil Yard without proper PPE (Dkt. No. 55, ¶ 33). Ms. Ma maintains

that her teamwork suffered because Mr. Gentry refused to assign her with responsibility that

encouraged teamwork, asking her to write her own position responsibilities and job description

(Dkt. No. 54, at 12). Ms. Slate testified, however, that for a professional role, like a metallurgist,

Ms. Ma’s role would have been clear, and there would not have been a written job description

(Dkt. No. 53-15, at 29).

The “[f]ederal courts do not sit as a super-personnel department that reexamines an entity’s

business decisions.” Torlowei v. Target, 401 F.3d 933, 935 (8th Cir. 2005) (quoting Wilking v.

County of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998)). “The fact that an employee meets some

expectations, however, does not mean that she meets the standard if she does not meet other

significant expectations.” Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 729 (8th Cir.

2002). The undisputed record evidence demonstrates that Ms. Ma did not reveal on her application

for employment with Nucor her most recent position with Nucor’s competitor, U.S. Steel. When

Nucor discovered Ms. Ma’s omission of this work experience on her application and resumé and

raised it with Ms. Ma, Ms. Ma was not immediately forthcoming about her work experience at

U.S. Steel raising integrity concerns for Nucor. The record evidence also indicates that Ms. Ma

failed to meet Nucor’s expectations related to safety. Finally, the record evidence also

demonstrates that Ms. Ma’s peer review indicated that Ms. Ma had several issues related to

integrity, teamwork, and communication with teammates.

Based on the record evidence, construing all reasonable inferences in favor of Ms. Ma, the

Court determines that no reasonable juror could find that Ms. Ma was meeting Nucor’s legitimate

job expectations as a result, and thus, she fails to satisfy the second element of her prima facie case

of gender, race, and national origin discrimination under Title VII and the ACRA.

Nucor also argues that Ms. Ma is unable to demonstrate that she was treated differently

than similarly situated employees outside of her protected class (Dkt. No. 45, at 28-29). “[A]

plaintiff can satisfy the fourth part of the prima facie case in a variety of ways, such as by showing

more-favorable treatment of similarly-situated employees who are not in the protected class, or

biased comments by a decisionmaker.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011)

(citing Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039-40 (8th Cir. 2010)).

Nucor argues that Ms. Ma has not identified a similarly situated employee outside of her

protected class who was involved in or was accused of issues with respect to integrity, performance

review, and job performance issues but who was not terminated (Dkt. No. 45, at 29). Ms. Ma

contends that “[w]hen direct evidence of discrimination is presented the McDonnell Douglas

analysis does not apply.” (Dkt. No. 54, at 12 (citing Trans World Airlines, Inc. v. Thurston, 469

U.S. 111 (1985)). As set forth above, however, Ms. Ma has not presented any direct evidence of

gender, race, or national origin discrimination in the form of biased comments by Ms. Slate.

Ms. Ma points to one “comparator” a “summer intern” who shared an office with Mr.

Gentry during her internship. Ms. Ma does not, however, provide the gender, race, or national

origin of the “summer intern” in order for the Court to evaluate whether that person is an adequate

comparator. Additionally, Ms. Ma has not provided evidence that the “summer intern” was

involved in or accused of the same or similar conduct and was disciplined differently than Ms. Ma.

The Court also understands Ms. Ma points to Nucor’s “civil litigation history regarding

discrimination under Title VII” as comparator evidence. Past litigation against Nucor, however,

has no relevance to whether there are comparators for establishing a prima facia case of gender,

race, or national origin discrimination in Ms. Ma’s case unless the Court is provided enough detail

to understand how the litigants in prior cases against Nucor were comparators to Ms. Ma, which

is not the case on the record before the Court.

Based on the record evidence, construing all of the reasonable inferences in favor of Ms.

Ma, the Court determines that no reasonable juror could find in Ms. Ma’s favor on the fourth

element of her gender, race, or national origin claims of discrimination under Title VII or the

ACRA.

c. Legitimate Nondiscriminatory Reason

Nucor contends that, even if Mr. Ma could establish a prima facie case of gender, race, or

national origin discrimination, Nucor had a legitimate, non-discriminatory reason for terminating

Ms. Ma. The employer’s burden to articulate a nondiscriminatory reason is “not onerous.” Flloyd

v. Mo. Dep’t of Soc. Servs., Div. of Family Servs., 188 F.3d 932, 936 (8th Cir. 1999). Nucor

articulates a non-discriminatory reason for Ms. Ma’s termination by maintaining that it terminated

her for lying on her employment application by omitting, and by failing to acknowledge when

confronted by Nucor, relevant and recent work experience with a direct Nucor competitor, U.S.

Steel. District courts have held that lying on an employment application constitutes a legitimate,

non-discriminatory ground for termination. See e.g. Kravit v. Delta Air Lines, Inc., Case No. CV-

92-0038, 1992 WL 390236, at *2 (E.D. N.Y Dec. 4, 1992); Fullman v. Potter, 480 F. Supp. 2d

782, 792 (E.D. Pa.), aff’d 254 F. App’x 919 (3d Cir. 2007). Additionally, Ms. Ma violated

company policy when she committed safety violations and exhibited job performance, integrity,

and teamwork issues. On the record evidence before the Court, Nucor meets its burden to articulate

a non-discriminatory reason for Ms. Ma’s termination.

d. Pretext

Once the employer articulates a legitimate, non-discriminatory reason for the challenged

conduct, the plaintiff must produce sufficient evidence to create a genuine issue of material fact

regarding whether the proffered reason is mere pretext for intentional discrimination. Pope v. ESA

Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). The plaintiff has the burden of showing, by a

preponderance of the evidence, that the employer’s proffered reason for the challenged action is

not true and that discrimination was the real reason. Reeves v. Sanderson Plumbing Prods., 530

U.S. 133, 143 (2000).

“At the pretext stage, ‘the test for determining whether employees are similarly situated to

a plaintiff is a rigorous one.’” Bone, 686 F.3d at 956 (quoting Rodgers v. U.S. Bank, N.A., 417

F.3d 845, 853 (8th Cir. 2005)). To succeed at the pretext stage, Ms. Ma must show that she and

the potential comparators she identifies were “similarly situated in all relevant respects.” Id.

(quoting Rodgers, 417 F.3d at 853). That is, the employees “used for comparison must have dealt

with the same supervisor, have been subject to the same standards, and engaged in the same

conduct without any mitigating or distinguishing circumstances.” Wierman v. Casey’s Gen.

Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474,

479 (8th Cir. 2004)).

Viewing the record evidence in the light most favorable to Ms. Ma, no reasonable fact

finder could conclude that Ms. Ma has identified comparators to demonstrate pretext. Ms. Ma has

not identified any purported comparator not in the protected class who lied on their employment

application by omitting and then failed to acknowledge when confronted by Nucor relevant and

recent work experience with a direct Nucor competitor, committed safety violations, and had job

performance, integrity, and teamwork issues and who was supervised by the same individual as

Ms. Ma and was not terminated.

If the proffered reason for an employee’s termination is shown by conflicting evidence to

be untrue, then the nonmoving party is entitled to all favorable inferences that the false reason

given masks the real reason of intentional discrimination. Loeb v. Best Buy Co., 537 F.3d 867,

873 (8th Cir. 2008). Here, Ms. Ma admits to not listing her work experience at U.S. Steel on her

resumé or employment application when applying for the position with Nucor (Dkt. No. 55, ¶¶ 4,

5). Further, Ms. Ma admits that, when confronted about it, she refused to provide Nucor with any

information about her employment with U.S. Steel including who she worked for, who she worked

with, or her separation from U.S. Steel (Dkt. No. 55, ¶ 39). Ms. Ma asserts that she was limited

by a settlement agreement with U.S. Steel; however, the evidence in the record indicates that, at

the time that Nucor terminated Ms. Ma’s employment on September 10, 2018, Ms. Ma had not

entered into a settlement agreement with U.S. Steel. Ms. Ma did not enter into an agreement with

U.S. Steel until after she filed a lawsuit against U.S. Steel on or about November 19, 2018, more

than a month after her employment with Nucor ended (Dkt. No. 53-1, ¶ 6). Ms. Ma also admits

that she failed to follow safety standards on two occasions (Dkt. Nos. 53-6, at 84; 55, ¶¶ 28-33).

Ms. Ma contends that she omitted the work experience at U.S. Steel because it was brief

and irrelevant and because her resumé was too long. Ms. Ma also contends that, at other plants at

which she worked, she was not required to wear PPE. Finally, Ms. Ma asserts that at Nucor she

was not given job assignments that helped her with teamwork issues. Generally, an employee’s

justifications for failing to meet the employer’s expectations are not evidence that creates a genuine

issue of fact as to whether the employer’s reasons were mere pretext. Haigh v. Gelita USA, Inc.,

632 F.3d 464, 470 (8th Cir. 2011); Riley v. Lance, Inc., 518 F.3d 996, 1002 (8th Cir. 2008) (“[The

plaintiff’s] attempt to justify his failure [to meet the employer’s requirements] does not create a

genuine issue as to the legitimacy of the requirement.”). Accordingly, any alleged factual dispute

regarding the details of some of the alleged conduct and whether other actions were justifiable

does not preclude summary judgment.

Moreover, “[t]he critical inquiry in discrimination cases like this one is not whether the

employee actually engaged in the conduct for which he was terminated, but whether the employer

in good faith believed that the employee was guilty of the conduct justifying discharge.”

McCullough v. Univ. of Ark. For Med. Sciences, 559 F.3d 855, 861-62 (8th Cir. 2009). Viewing

the record evidence in the light most favorable to Ms. Ma, no reasonable fact finder could conclude

that Nucor did not in good faith believe that Ms. Ma engaged in the conduct for which she was

terminated; Ms. Ma admits that she engaged in the conduct.

Further, the Court understands Ms. Ma to criticize Nucor’s investigation into her

complaints about Mr. Gentry, but the Court notes, “[t]he appropriate scope of investigation is a

business judgment, and shortcomings in an investigation do not by themselves support an inference

of discrimination.” Id. at 863.

“[T]he showing of pretext necessary to survive summary judgment requires more than

merely discrediting an employer’s asserted reasoning for terminating an employee. A plaintiff

must also demonstrate that the circumstances permit a reasonable inference of discriminatory

animus.” Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d 639, 643 (8th Cir. 2008) (internal quotation

marks and citation omitted). Viewing the record evidence in favor of Ms. Ma, nothing in the

record permits a reasonable inference of discriminatory animus, and no reasonable fact finder

could find in favor of Ms. Ma on pretext.

As a result, because Ms. Ma fails to demonstrate a prima facie case of gender, race, or

national origin discrimination; because Nucor has articulated a legitimate, non-discriminatory

reason for her termination; and because Ms. Ma fails to establish pretext and a reasonable inference

of discriminatory animus, the Court grants summary judgment in favor of Nucor on Ms. Ma’s

gender, race, and national origin discrimination claims.

D. Retaliation

To establish a prima facie case of retaliation, Ms. Ma must show that: (1) she engaged in

a statutorily protected activity; (2) she suffered a materially adverse action by her employer; and

(3) a causal connection existed between the protected activity and the adverse action. Wilkie v.

Dep’t of Health and Human Servs., Inc., 638 F.3d 944, 955 (8th Cir. 2011). For a Title VII claim,

“[r]etaliation must be the ‘but for’ cause of the adverse employment action.” Blomker v. Jewell,

831 F.3d 1051, 1059 (8th Cir. 2016) (internal revisions, quotations, and citations omitted). For

these claims, “[i]t is not enough that retaliation was a ‘substantial’ or ‘motivating’ factor in the

employer’s decision.” Blomker, 831 F.3d at 1059 (citations omitted). “Generally, more than a

temporal connection between the protected conduct and the adverse employment action is required

to present a genuine factual issue on retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131,

1136 (8th Cir. 1999) (en banc), cert. denied, 528 U.S. 818. The Court evaluates ACRA retaliation

claims under the same legal framework. See Brown v. City of Jacksonville, 711 F.3d 883, 892 (8th

Cir. 2013); Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 792 (8th Cir. 2011). If Ms.

Ma establishes a prima facie case of retaliation, the Court applies the McDonnell Douglas

framework. See Shirrell v. St. Francis Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015).

Ms. Ma claims that she was terminated “in retaliation for [her] rejection of [Mr.] Gentry’s

advances and her complaints to management, her EEOC Charge[,] and based on a discriminatory

animus of sex and race discrimination” (Dkt. No. 29, ¶ 57). The Court notes that Ms. Ma filed her

EEOC Charge of Discrimination on February 21, 2019, over five months after she was terminated

on September 10, 2018. The Court does not see how filing her Charge of Discrimination could

serve as the basis for a retaliation claim since she did not file the charge until after the alleged

retaliatory act.

Although the Circuit Courts of Appeals are split on whether declining a supervisor’s sexual

advances constitutes protected activity under Title VII, the Eighth Circuit has recognized that a

plaintiff engages in “the most basic form of protected conduct” when she tells her supervisor to

stop harassing her. Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000); see also Culton

v. Mo. Dep’t of Corr., 515 F.3d 828, 831 (8th Cir. 2008) (holding that plaintiff’s “efforts to stop

the harassment of a co-worker” constituted “an activity that is protected by Title VII”). District

courts within the Eighth Circuit have also held that refusing to submit to a supervisor’s sexual

advances could constitute protected activity under Title VII, depending on the factual

circumstances at issue. See, e.g., Coe v. N. Pipe Prods., Inc., 589 F. Supp. 2d 1055, 1104 (N.D.

Iowa 2008); Ellet v. Big Red Keno, Inc., No. 8:96CV274, 1998 WL 476106, at *10 (D. Neb. June

19, 1998). However, “when an employee communicates to her employer a belief that the employer

has engaged in . . . a form of employment discrimination, that communication virtually always

constitutes” protected activity. Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S.

271, 276 (2009); see also Gustafson v. Genesco, Inc., 320 F. Supp. 3d 1032, 1051 (S.D. Iowa

2018) (“The range of protected activity includes an informal complaint to management.” (internal

quotations and citations omitted)). Ms. Ma’s alleged complaints to management—which

management clearly received as evidenced by the investigation into Ms. Ma’s complaints—

represent statutorily protected activity. Thus, Ms. Ma’s complaints to management clearly

establish the first prong of her retaliation claim.

Nucor argues that Ms. Ma’s retaliation claim fails because she cannot establish that there

is a causal link between any of the alleged protected activity and her termination (Dkt. No. 45, at

40). Nucor points out that Ms. Ma’s performance issues began well before any alleged protected

activity (Id.). Ms. Ma’s peer review results, which were finalized in June 2018, preceded any

allegation of sexual harassment or alleged inappropriate behavior by Mr. Gentry (Id.). Ms. Ma’s

peers and supervisors were expressing issues with Ms. Ma’s job performance three months into

Ms. Ma’s employment at Nucor, and Ms. Ma was told about several areas for improvement through

the peer review process and was expected to make significant improvement (Id.). Mr. Williams,

the Cold Mill Manager at Nucor, discussed performance issues with Ms. Ma including her talking

over folks and otherwise creating a negative environment on many occasions during her

employment (Id. (citing Dkt. No. 44-8, at 5)). Additionally, one of Ms. Ma’s safety violations

occurred on July 2, 2018, prior to any protected activity (Id., at 41 (citing 44-15, at 2)). Ms. Ma

made allegations against Mr. Gentry to Ms. Slate in early August 2018 (Dkt. No. 44-3, at 3-4).

Subsequent to her complaints and Nucor’s investigation of those complaints, Nucor became aware

that Ms. Ma failed to disclose her former employment with U.S. Steel (Id., at 7). After concluding

that Ms. Ma had omitted critical information about her prior employment and was dishonest when

confronted about it, Ms. Slate made the decision to terminate Ms. Ma’s employment (Id.).

Ms. Ma points out that a period of days passed between the conclusion of what she terms

Nucor’s “sham investigation” of her complaints of harassment and her termination, but

“[g]enerally, more than a temporal connection between the protected conduct and the adverse

employment action is required to present a genuine factual issue on retaliation.” Kiel, 169 F.3d at

1136. Ms. Ma also contends that there were no criticisms of her ability to perform the

responsibilities of her position, but the record indicates otherwise. While Ms. Ma may have been

technically proficient, she had difficulties with teamwork and at least one safety violation prior to

lodging a complaint with Ms. Slate regarding Mr. Gentry. Here, construing the record evidence

in favor of Ms. Ma, she fails to demonstrate retaliation was the but for cause of the adverse

employment action. See Blomker, 831 F.3d at 1059.

Even if Ms. Ma can establish her prima facie claim of retaliation, the Court determines that

she cannot establish pretext. For all of the same reasons Ms. Ma fails to demonstrate pretext with

respect to her gender, race, and national origin discrimination claims previously analyzed by the

Court, she also fails to demonstrate pretext with respect to her retaliation claim. Construing all of

the record evidence in favor of Ms. Ma, no reasonable fact finder could find pretext. As a result,

the Court grants summary judgment in favor of Nucor on Ms. Ma’s retaliation claim.

V. Conclusion

It is therefore ordered that:

a. the Court grants in part and denies in part consistent with the terms of this Order

Nucor’s motion to strike portions of Ms. Ma’s statement of material facts in dispute

and summary judgment exhibits (Dkt. No. 60).

b. the Court grants Nucor’s motion for summary judgment (Dkt. No. 44).

c. the Court dismisses Ms. Ma’s amended complaint with prejudice (Dkt. No. 29).

It is so ordered this 29th day of August, 2022.

Kush A: Palin

Kristine G. Baker

United States District Judge

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