Aman v. Dillon Companies, Inc.
ORDER granting in part and denying in part 25 Motion for Summary Judgment, by Judge John L. Kane on 3/11/2014.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02973-JLK
MOE AMAN (f/k/a/ MOHAMMED AMAN),
DILLON COMPANIES, INC. d/b/a KING SOOPERS, a Kansas Corporation
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, ECF DOC. 25
This grocery store employment discrimination dispute is before me on a Motion
for Summary Judgment, Doc. 25, filed by Defendant Dillon Companies, Inc. d/b/a/ King
Soopers. For the reasons that follow, King Soopers’ motion is GRANTED as to the
reassignment claims and the ADA discrimination based discharge claim, and otherwise
DENIED as to all remaining claims.
Jurisdiction, Venue, Choice of Law
Mr. Aman states thirteen claims for relief under Title VII, 42 U.S.C § 1981, and
the American with Disabilities Act (42 U.S.C. § 12101 et. seq.) (the “ADA”). Because
Mr. Aman’s causes of action arise under federal law, I have original jurisdiction per 28
U.S.C. § 1331. I also have jurisdiction under 28 U.S.C. § 1343(a) because Mr. Aman
seeks relief for the alleged deprivation of his federally protected rights and privileges.
The parties stipulate that a substantial part of the events or omissions giving rise to Mr.
Aman’s claims occurred in Colorado, therefore venue is proper under 28 U.S.C. §
1391(b)(2) . Compl. ¶ 2; Answer ¶ 2.
Summary Judgment Legal Standard
Summary judgment is appropriate if there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir.
2008). A disputed fact is material if it could affect the outcome of the suit under the
governing law. Adamson, 514 F.3d at 1145. A factual dispute is genuine if a rational
jury could find for the nonmoving party on the evidence presented. Id. The moving
party bears the burden of showing that no genuine issue of material fact exists. Adamson,
514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden by showing a lack of evidence for an essential
element of the nonmovant's claim. Id. In deciding whether the moving party has carried
its burden, I may not weigh the evidence and must view the evidence and draw all
reasonable inferences from it in the light most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Adamson, 514 F.3d at 1145.
Neither unsupported conclusory allegations nor a mere scintilla of evidence in support of
the nonmovant's position are sufficient to create a genuine dispute of fact. See Mackenzie
v. City and County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Lawmaster v. Ward,
125 F.3d 1341, 1347 (10th Cir. 1997).
Moe Aman immigrated to the United States from Ethiopia in 1999 and shortly
thereafter became an employee of Defendant King Soopers. Ex. 1, 20:15–22:14. He
worked for King Soopers for 7.5 years, from November 13, 2000 until his termination on
May 27, 2008. King Soopers is a Colorado-based supermarket chain wholly owned by
Dillon Companies, a Kansas corporation. Mr. Aman worked at two different King
Soopers stores in Denver, Colorado during his employment. The relevant events to this
case took place at Store # 5 under the management of Jack Ruby, an employee with a 39
year history at King Soopers, 14 of which as a store manager. Ex. 5, 5:10–6:21. Mr.
Ruby has been the store manager at Store #5 for 12 years. Id.
For most of his tenure, Mr. Aman was employed at Store #5 as a part-time produce
clerk. Per the produce clerk written job description, his duties in that role included lifting
and carrying loads of produce, unloading delivery trucks, and stocking the produce
department. Ex. 22 (produce clerk job description). The testimony of Mr. Aman himself
as well as others repeatedly confirms this paper requirement as also a requirement in fact.
Ex. 1, 52:5–55:4 (Mr. Aman describing his produce clerk duties as including: "Cashier,
stocking, customer service, loading and unloading trucks.”); see also Ex. 5, 16:14–17:2
(Mr. Ruby describing Mr. Aman’s primary duties and problems with his performance of
Mr. Aman began working at Store #5 in February 2006. Initially, his supervisors
were produce manager, Don Gordy, and assistant produce manager, Chris Bateson. Both
are white males. Mr. Aman claims to have endured a litany of abuses at the hands of
Messrs. Gordy and Bateman from the very start of his employment at Store #5. Mr.
Aman alleges that while he received a warm welcome from all of the other employees
present on his first day, Mr. Bateson refused to shake his hand. Ex. 1 at 129:6–13. He
was told later that day by an African American employee that Mr. Bateson does “not like
black people,” and referred to them as “African monkey[s].” Id. at 129:11–21. Although
apparently never called an “African monkey” by Mr. Bateson, once in early 2007 Mr.
Bateson called him a “lazy African” because he mistakenly believed that Mr. Aman had
left a shipment of strawberries unrefrigerated. Id. at 130:9–17;131:13-25. Also in early
2007, Mr. Gordy once called Mr. Aman an “African monkey while the two were working
in the stockroom, and Mr. Gordy referred to him as an “African lion” sometime after that.
Id. at 143:19-25; 144:1-9.
During this time period Mr. Gordy and Mr. Bateson allegedly twice changed Mr.
Aman’s schedule by taking hours away from Mr. Aman and giving them to an employee
with less seniority and who also happens to be Mr. Ruby’s nephew-in-law. Ex. 1 at
125:6–128:19. Mr. Aman later filed a grievance over these alleged changes with his
union, the United Food and Commercial Workers Union. Ex. 17 at 1094.
According to Mr. Ruby and his assistant manager, Terri Smith, however, Mr. Aman
had a history of misunderstanding how the King Soopers’ scheduling system operated.
Ex. 5 at 145:10–148:1 (Mr. Ruby describing times when Mr. Aman complained to him);
Ex. 9 at 58:15–60:21 (Ms. Smith describing incident where she had to explain how
scheduling worked after Mr. Aman complained that his lack of hours was racially
motivated). Ms. Smith, who is African American, attempted to explain to Mr. Aman that
King Soopers allocates a specific number of hours per department for a scheduling
period, and managers have an obligation under the collective bargaining agreement
between the company and Union to ensure that all part-time employees get at least 20
hours per week. Ex. 9 at 58:19–60:18; see also Ex. 4 at 9:14–10:15 (assistant produce
manager Robbie Casados describing how hourly employees select shifts and the hours
allocation process for part-time employees). According to another hourly produce
employee, Marcey Goldis, Ms. Smith provided additional training on selecting shifts to
all of the produce employees to prevent further disagreement. Ex. 15 at 60:9–21 (Ms.
Goldis describing Ms. Smith’s re-training).
Additionally, Mr. Ruby attempted to explain how the scheduling system worked when
Mr. Aman complained about his hours. Ex. 5 145:25–148:1. According to Mr. Ruby,
Ms. Smith spent considerable time with Mr. Aman explaining the scheduling system to
him and generally attempting to help him develop as an employee. Ex. 5 at 16:11–17:7.
On December 4, 2007, the Union withdrew Mr. Aman’s scheduling complaint, finding he
was indeed offered the most possible hours available to him at the time. Ex. 17 at 1095,
A. Mr. Aman’s Workers’ Compensation Claim and Termination
Mr. Aman’s relationship with Mr. Gordy came to a head on May 7, 2007 when Mr.
Gordy pushed a cart into Mr. Aman and another employee in the store’s stockroom. Ex.
1 (Behavior Notice statement). Mr. Aman was injured and Mr. Gordy was fired. Id.
(reason for Mr. Gordy’s discharge); Ex. 2 (Termination Form for Mr. Gordy). Mr. Aman
suffered back problems from the incident and filed a workers’ compensation claim. Ex.
1; Ex. 5 (Physician’s Report of Worker’s Compensation Injury). After a course of
various treatment, his appointed physician, Dr. Franklin Shih, concluded on October 11,
2007 that Mr. Aman had reached his Maximum Medical Improvement (MMI). Id. Dr.
Shih diagnosed Mr. Aman with a Permanent Impairment to his back, and provided the
following Permanent Restrictions: Lifting, carrying, pushing, and pulling all limited to no
more than thirty pounds on an occasional basis. Id.
Despite his restrictions, Mr. Aman continued to work as a produce clerk throughout
2007. King Soopers’ management provided accommodation for him during this time.
Specifically, King Soopers allowed Mr. Aman to rely heavily upon “buddy lifts,” by
which another employee would aid him to move objects over 30 pounds. Ex. 5 at 27:4–
28:14 (Mr. Ruby’s description of Mr. Aman’s accommodation with the “buddy lift”). In
addition to this accommodation, Mr. Aman, because of his seniority, was often able to
avoid heavy lifting by selecting shifts working in the “cut fruit” section of the produce
department. Id. at 21:9–24:11 (Mr. Ruby describing the cut fruit position, how Mr.
Aman could select this shift, and the lifting accommodations made during the cut fruit
shift). The cut fruit shift did not require frequent lifting over 30 pounds. Id. Mr. Ruby
and Ms. Smith were both aware of Mr. Aman’s restrictions and accommodation. Id.; Ex.
10 at 10:25–11:1 (Smith deposition).
In March 2008 Mr. Aman obtained a second diagnosis by requesting an Independent
Medical Examination (IME) through the workers’ compensation program. Ex. 24
(request for IME); Ex. 25 at 2 (IME results). The IME, performed by a different,
independent physician, Dr. John Tobey confirmed that Mr. Aman had reached MMI,
recommended that the earlier restrictions should remain in place, and prescribed a pain
management regimen. Ex. 25 at 3, 5.
King Soopers’ Personnel Policies manual requires an employee assessment to be
conducted after a determination of MMI in order to identify other positions the employee
could do without accommodation. Ex. 11 at 31-32. Per this policy, on or about May 2,
2008 Mr. Aman met with Dimitri Clarke, a labor relations specialist with King Soopers.
Ex. 6 at 21:19–22:17 (Bouknight deposition); Ex. 28 (Clarke email). During this meeting
or shortly thereafter, Ms. Clarke made clear to Mr. Aman that his permanent inability to
lift over thirty pounds made him ineligible under King Soopers’ policies to continue as a
produce clerk and that he was being offered a position at the service desk. Ex. 13 at
11:21-28; Ex. 5 at 41:4-8; Ex. 27 at AMAN195; Ex. 28. Because service desk employees
earn less per hour than produce clerks, Mr. Aman did not want to be reassigned to a
service desk position and requested a leave of absence instead. Despite some initial
indication that this might be possible by Ms. Clarke, Ms. Clarke’s supervisor, labor and
employee relations manager Stephanie Bouknight, intervened to clarify to Mr. Ruby that
the company’s policy did not permit a leave of absence if there was a job available for the
employee. Ex. 5 at 40:17–41:18; see also Ex. 11 at 32 (company policy regarding leaves
On May 8, 2008, King Soopers provided Mr. Aman with formal notice of his
assignment to the service desk. Management’s decision to move Mr. Aman to the service
desk was premised on the fact that Store #5 did not require service desk employees to
move any objects over thirty pounds. Ex. 7 at 31:5-35:25; P. Ex. 8 (letter of notification
sent to Mr. Aman from Ms. Clarke). Per the reassignment, Mr. Aman was reclassified as
a “GG clerk,” a classification encompassing both service desk workers and general
merchandise workers. See foonote 4.
Mr. Aman was scheduled to begin at the service desk on May 13, 2008. Ex. 16 at 2.
Mr. Aman, however, never actually worked a shift at the service desk. The record
indicates Mr. Aman called in sick on May 13, 2008, and did not show up for work during
any of his scheduled shifts until he was removed from the schedule and terminated on
May 27, 2008.
Mr. Aman’s phone records indicate calls into Store #5 early in the morning of May
13, late in the evening on May 13 (apparently to call in sick for the 14th), the early
mornings of May 16 and May 17, and two calls on the morning of May 18. Pl. Ex. 9.
King Soopers’ daily schedules indicate Mr. Aman called in sick on May 13, did not call
in on May 14, and called in sick on May 17 with the annotation that he was calling in sick
“all week.” D. Ex. 16. The daily schedules provide no other information after May 17,
2008. Mr. Aman remained on the schedule and failed to show for work from May 21
through May 23, 2008. Ex. 13 at 7:5–20. According to King Soopers, Mr. Aman was
fired for failing to show or call in over these dates. Id.
Between May 10 and June 2, 2008 there was no communication between Mr. Aman
and either Mr. Ruby or his new assistant manager John Quigley. On June 2, 2008, Mr.
Aman returned to the store and Mr. Ruby notified Mr. Aman of his termination. Id. at
B. Mr. Aman’s Alleged Complaints of Mistreatment and Discrimination
On May 5, 2008, Mr. Aman complained to Ms. Clarke that he believed he had
been discriminated against because of his injury at Store #5 and his race. Ex. 44, ¶ 17;
Ex. 28 (Clarke email). Mr. Aman complained that the denial of his request for leave of
absence was retaliation against him for exercising his workers’ compensation rights.
This complaint followed Ms. Clarke’s statement earlier that day that a leave of absence
was a possible course of action. Ex. 1 at 194:6–14. Mr. Aman also complained to Ms.
Clarke about when he had been called a “lazy African” and an “African monkey.” Ex. 1
at 148:8–10 (Aman deposition); Ex. 28 (Clarke email). Mr. Aman stated that Mr.
Gordy’s assault and Mr. Bateson’s changing his shifts indicated a pattern of harassment
due to his race. Ex. 1 at 192:5–16. Mr. Aman further alleged to Ms. Clarke that Mr.
Ruby had rebuffed his repeated complaints of discrimination. Ex. 28; Ex. 1 at 192, 5:16;
Ex. 19 at 6 (Charge of Discrimination). These alleged rebuffs included Mr. Ruby not
sufficiently addressing the racially harassing comments made to Mr. Aman or his
scheduling concerns. Ex. 28.
On May 7, 2008, under the theory of “unjust demotion,” Mr. Aman filed a union
grievance action for his transfer to the service desk. Ex. 27 (Step 2 Meeting Form).
After an internal investigation, the union dismissed Mr. Aman’s grievance on September
25, 2008. The union premised its dismissal on Mr. Aman’s failure to return to work after
he was directed to do so by King Soopers. Ex. 34 (union letter dated Sep. 25, 2008); Ex.
29 (Explanation of Dropped Grievance); see also Pl. Ex. 12 (May 20, 2008 warning letter
from King Soopers directing Mr. Aman to make contact with Mr. Ruby or face
termination). The union later dismissed another grievance Mr. Aman initiated, this one
for wrongful termination, because Mr. Aman failed to follow up with the Union per its
request. Ex. 40. Unsuccessful with his union grievances, Mr. Aman filed a Charge of
Discrimination with the Equal Employment Opportunity Commission, on March 13,
2009. Ex. 19.
The EEOC’s Denver Field Office issued a Determination on July 11, 2011 finding
“reasonable cause” that King Soopers violated Mr. Aman’s rights under the ADA by
denying him a reasonable accommodation, removing the accommodation he had been
working under as a produce clerk, and discharging him because of his disability and in
retaliation for requesting a reasonable accommodation to continue working in produce.
Ex. 15 ¶ 4. The Commission made no other findings on Mr. Aman’s other allegations
under Title VII or Section 1981. Id. at ¶ 5. The EEOC did not analyze how it arrived at
Mr. Aman brings thirteen claims relating to three employment actions.
Specifically, he alleges:
(1) that his reassignment to the service desk was (a) race discrimination under
Title VII and 42 U.S.C. § 1981 (“Section 1981”) (Am. Compl. (12/20/2011), Doc. No. 8
at 14; (b) disparate treatment and failure to accommodate under the Americans with
Disabilities Act (“ADA”) (id. at 16-17); and (c) retaliation under Title VII and Section
1981 (id. at 19.);
(2) that his discharge on May 27, 2008 was (a) race discrimination under Title VII
and Section 1981 (id. at 13); (b) disparate treatment and failure to accommodate under
the ADA (id. at 15); (c) retaliation under Title VII and Section 1981 (id. at 18); (d)
retaliation under the ADA (id. at 20); and (e) wrongful discharge in retaliation for filing a
workers compensation claim (id. at 21-22); and
(3) that he was subject to a hostile work environment because King Soopers’
employees assaulted him, called him racially derogatory names, changed his schedule,
reduced his hours, refused to take action when he complained about harassment, denied
him a reasonable accommodation, demoted him, denied him time off for religious
observance and mocked his injury. (Id. at 20-21.)
This discussion of Mr. Aman’s claims is organized below by employment action.
A. Mr. Aman Has Not Established Genuine Issues of Material Fact Concerning His
Title VII, 42 U.S.C. § 1981 and the Americans with Disabilities Act all prohibit
employers from discriminating against employees and from retaliating against them for
opposing any practice made unlawful by the applicable statute. Discrimination and
retaliation claims under all three statutes are subject to the burden-shifting analyses of
McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04 (1973). Pastran v. K-Mart
Corp., 210 F.3d 1201, 1205 (10th Cir. 2000) (analyzing Title VII retaliation claim under
the burden-shifting framework delineated in McDonnell Douglas); Twigg v. Hawker
Beechcraft Corp., 659 F.3d 987, 990 (10th Cir. 2011) (analyzing 42 U.S.C. §1981
retaliation claim under the burden-shifting framework delineated in McDonnell Douglas);
EEOC v. C.R. England, Inc., 644 F.3d 1028, 1031 (10th Cir. 2011) (analyzing ADA
retaliation claim under the burden-shifting framework delineated in McDonnell Douglas).
Under the McDonnell Douglas framework, the plaintiff must first establish a
prima facie case. A plaintiff’s proof may come by way of direct evidence, indirect
evidence, or both. See Perry v. Woodward, 199 F.3d 1126, 1134-35 (10th Cir. 1999)
(distinguishing direct and indirect methods of proof). Once the plaintiff establishes a
prima facie case, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse actions(s). Pastran at 1205; Twigg at 998; C.R.
England at 1051. If the employer meets that burden the plaintiff must then establish that
the employer’s proffered reason(s) are merely a pretext for unlawful discrimination.
Pastran at 1205; Twigg at 998; C.R. England at 1051.
Mr. Aman’s third and fourth claims for relief are premised on the allegation that
his reassignment was in violation of Title VII and 42 U.S.C. §1981. Mr. Aman’s sixth
claim for relief is based on an allegation that his reassignment violated the ADA. King
Soopers submits that (1) Mr. Aman’s Title VII and ADA reassignment claims are
untimely; and (2) in any event, Mr. Aman has “no evidence” that King Soopers
discriminated against him because of his race or disability or retaliated against him. Doc.
36 at p.23. Although I disagree with King Soopers on the issue of timeliness, but agree
with it on the merits of the claims, I GRANT summary judgment in favor of King
Soopers with respect to Mr. Aman’s third, fourth, and sixth claims.
1. Mr. Aman’s Title VII and ADA Reassignment Claims Are Timely Because
An aggrieved employee must file a Charge of Discrimination under Title VII or
the ADA within 300 days of the alleged violation. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. §
12117(a). “The limitations period begins ‘on the date the employee is notified of an
adverse employment decision by the employer.’” Daniels v. United Parcel Serv., Inc.,
701 F.3d 620, 628 (10th Cir. 2012)(internal quotations omitted). The United States
Supreme Court has held that the timely filing of an EEOC claim is not a jurisdictional
prerequisite, but rather a requirement to suit that “is subject to waiver, estoppel, and
equitable tolling.” Zipes v. Trans World Airlines, Inc. 455 U.S. 385, 385 (1982). Where
an employer responds to the merits of an EEOC claim and does not mention a technical
defect like timeliness, the employer waives the defense of the defect. See Buck v.
Hampton Township School Dist., 452 F.3d 256, 258 (3rd Cir. 2006)(finding that the
verification requirement of the Charge was “analogous” to the time limit for filing
charges with the EEOC and that, “[w]hen an employer files a response on the merits, he
forgoes the protection that the requirement affords”); EEOC v. JBS USA, LLC, 794
F.Supp.2d 1188, 1198 (D.Colo.2011)(holding that employer who filed response to merits
of EEOC charge was precluded from arguing that the EEOC charge lacked verification).
Mr. Aman learned of his reassignment on May 5, 2008. (Ex. 13 at 11:21-28; Ex.
5 at 41:4-8; Ex. 27 at AMAN195.) Three hundred and twelve days after, on March 13,
2009, Mr. Aman filed a Charge of Discrimination in which he, inter alia, protested his
reassignment to the service desk. The relevant portion of the Charge reads:
T. I was supposed to begin my leave of absence on May 11, 2008,
however, when I went to confirm my leave with Ruby, Ruby told
me that I could not take leave. Instead of allowing me to take a
leave of absence, Ruby switched me to the Customer Service
Department where I would be making approximately half (1/2) of
what I was making in the Produce Department.
U. I again protested the discriminatory and harassing treatment.
This time, I believe that not only was I being discriminated
against because of my race/national origin but also because of
my perceived disability. I reminded Ruby that Clark(sic) had
suggested the leave of absence to begin with and that I still had
back pain, which made it difficult for me to work. Ruby
responded that I had no choice and had to do as he directed.
Ex. 19 at p.4.
On May 8, 2009, King Soopers responded to Mr. Aman’s Charge by issuing a
Position Statement including the following relevant language:
Charging Party claimed that his back was injured as a result of the
incident with Gordy in May 2007. He later presented permanent restrictions
and was determined by his physician to have reached maximum medical
improvement. These permanent restrictions included no lifting of more
than 30 pounds, and limitations on repetitive lifting, carrying, pushing, and
King Soopers met with Charging Party to discuss these restrictions and to
assess his ability to perform the essential functions of the produce clerk
This assessment revealed that Charging Party was unable to perform the
essential functions of a produce clerk, but was able to perform the essential
functions of the Service Desk Position. As a result, Charging Party was
reassigned to the Service Desk.
On May 5, 2008, Charging Party contacted King Soopers Human
Resources Department to discuss the assessment and his reassignment to
the Service Desk. Charging party stated that he did not want to work the
Service Desk, and that he preferred to take a leave of absence instead. HR
informed Charging Party that since there was a job available that he could
perform, he was not eligible for a leave of absence. During this
conversation, for the first time, Charging Party claimed the he had been
harassed and discriminated against in the store.
Ex. 60 at p. 3.
King Soopers argues that its language regarding Mr. Aman’s reassignment
did not address the merits of the assignment and was instead an “application of the
recited facts to (1) the allegation that Charging Party was terminated because he
refused to report to work; (2) the allegation that Charging Party was denied the
hours he was entitled to because of his seniority; and (3) the allegation that
Plaintiff was subjected to harassment.” Doc. 39 at p. 34. Therefore, King Soopers
continues, it did not waive its statute of limitations defense with respect to the
reassignment. I find this argument difficult to swallow.
Paragraph T of the Charge clearly states that Mr. Aman was not allowed to
take leave and was instead reassigned. Paragraph U of the Charge unambiguously
refers back to this conduct—“I again protested the discriminatory and harassing
treatment.” Ex. 19 at p.4. King Soopers does not dispute that Mr. Aman’s charge
included the allegation of discriminatory reassignment and the allegation was
clearly known to King Soopers because it “applied” it in its position statement.
Thus, King Soopers is essentially asking to benefit from its negligence in not
explicitly addressing the merits of the reassignment claim.1 See Buck, 452 F.3d at
264 (allowing employers to wait until a suit is filed to raise the verification issue
“gives employers an incentive not to raise a plaintiff's failure to verify her charge
It is worth pointing out that scheduling does more than let an employee know what times and days he is working.
It also informs the employee of in what department he will be working and at what position. Accordingly, King
Soopers’ statement that “Charging Party was scheduled according to the terms of the collective bargaining
agreement,” could reasonably be construed as a remark addressing the merits of reassignment because scheduling
before the EEOC, in the hope that plaintiff will not discover the ‘technical’ error
until it is too late, and that the employer will be able to secure dismissal of any
subsequent federal suit on that basis”). I interpret Buck to mean that if an employer
responds to some of the merits in a Charge, waiver will apply to every clearly
expressed issue in the same Charge. Also, for the same policy reasons that require
affirmative defenses to be stated in an Answer or pled in a responsive motion, I
hold that if King Soopers believed the reassignment issue was not timely raised in
the Charge, it should have said so in its Position Statement. Because King
Soopers could have but did not mention timeliness as a bar to Mr. Aman’s
reassignment claims, the claims do not fail for exceeding the limitations period.2
2. Mr. Aman Fails to Make a prima facie ADA Discrimination Claim
To establish a prima facie case of disability discrimination a plaintiff must show
that (1) he is disabled within the meaning of the ADA; (2) he is qualified for his
employment position; and (3) the defendant discriminated against him because of his
disability. Doebele v. Sprint, 342 F.3d 1117, 1129 (10th Cir. 2003). The ADA defines
disability as (A) a physical or mental impairment that substantially limits one or more of
the major life activities of such individual; B) a record of such an impairment; or (C)
being regarded as having such an impairment. Doebele at 1129 – 1130.
Beginning with prong (1), Mr. Aman does not rely on an actual disability to
support his ADA claim but argues that King Soopers regarded him as disabled. To
I am using the doctrine of waiver because I find support—though not direct authority—for it in Buck and EEOC v.
JBS. I add, however, that equitable estoppel might be another way to skin this cat, though I did not determine
whether there is case law on point.
pursue his regarded-as claim, Mr. Aman must show that someone at King Soopers
responsible for the relevant employment decision mistakenly believed that Mr. Aman had
an impairment he did not have that substantially limited him in one or more major life
activities or mistakenly believed that Mr. Aman’s actual impairment substantially limited
him in one or more major life activities. Rakity v. Dillon Cos., 302 F.3d 1152, 1162 (10th
Mr. Aman presents no evidence that any of the relevant King Soopers’
employees—Ruby, Bouknight, or Clarke—mistakenly believed that he had an
impairment, real or perceived, that substantially limited him in one or more major life
activities. Rather, the decision makers were all aware of the non-substantially limiting
medical restrictions that Mr. Aman’s medical records indicated. Specifically, the
undisputed facts show that Dimitria Clarke, an African American Labor Relations
Specialist for King Soopers, met with Mr. Aman “to assess his ability to perform the
essential functions of the produce clerk position.” Ex. 6 at 22:9-14, Ex. 1 at 195:10196:4, Ex. 1 at 196:5-197:17, 199:17-200:20. At the time Clarke performed the
assessment, Mr. Aman had medical restrictions dating from October 11, 2007 that
permitted him “only occasional lifting, carrying and pushing/pulling of no more than 30
pounds.” Ex. 23; Ex. 1 at 199:23-25, 200:12-17. Mr. Aman also had a further restriction
issued on March 18, 2008 from an Independent Medical Examination (“IME”) that he
requested on December 28, 2007, which specified his restrictions as “no lifting greater
than 30-pounds. No pushing or pulling greater than 30-pounds.” Ex. 25 at AMAN272.
Mr. Aman admits by his own testimony that Clarke confirmed the 30-pound lifting
restriction. Ex. 1 at 199:17-22. These confirmed restrictions then formed the basis of
King Soopers’ determination that Mr. Aman was physically unable to perform the duties
of the produce clerk position. Ex. 5 at 37.
King Soopers maintains that these restrictions do not amount to a substantial
limitation in a major life activity. See Rakity v. Dillon Companies, Inc., 302 F.3d 1152,
1160 (10th Cir. 2002) (finding limitation to lifting forty pounds occasionally and ten to
fifteen pounds frequently does not establish a history of substantial limitation); Pryor v.
Tram Co., 138 F.3d 1024, 1025 n. 2 (5th Cir. 1998) (upholding jury verdict that twenty
pound lifting restriction was not substantially limiting), McKay v. Toyota Motor Mfg.
USA, Inc., 110 F.3d 369, 373 (6th Cir. 1997) (ten pound lifting restriction was not
substantially limiting), Thompson v. Holy Family Hospital, 121 F.3d 537, 540 (9th Cir.
1997) (twenty-five pound lifting restriction not substantially limiting), Wooten v.
Farmland Foods, 58 F.3d 382, 384, 386 (8th Cir. 1995) (ten to twenty pound lifting
restriction not substantially limiting). No individual King Soopers employee has ever
stated otherwise and Mr. Aman does not dispute that these restrictions do not amount to a
substantial limitation in a major life activity. Further, no King Soopers employee has
suggested that he disregarded the medical documentation to substitute his own
assessment of Mr. Aman’s abilities or lack thereof. Accordingly, Mr. Aman has failed to
meet his McDonnell Douglas burden of providing evidence suggesting that King Soopers
regarded him as disabled within the meaning of the ADA.
For Mr. Aman to succeed on prong (2), he must introduce evidence to support a
finding that he was able to perform the essential duties of the produce clerk position, with
or without reasonable accommodation. See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d
1170, 1173 (10th Cir.1996) (under the ADA, a “qualified individual with a disability” is
one who can perform the essential functions of the position with or without reasonable
accommodation.) He has not done so.
To begin, it is undisputed that an essential function for a produce clerk is the
ability to lift over thirty-pounds, Ex. 1 at 200:18-20; Ex. 15 at 18:1-3, Ex. 22, and, as
mentioned above, it is undisputed that Mr. Aman’s medical restrictions prohibit him from
lifting over thirty-pounds. Therefore, the only question is whether King Soopers could
have provided Mr. Aman with a reasonable accommodation such that he could have
performed the essential functions of a produce clerk.
Mr. Aman suggests he could have performed the essential functions of a produce
clerk if King Soopers had continued to let his co-workers perform his heavy lifting and/or
permitted him to make use of the “buddy lift” system, an arrangement in which one
employee would assist another to lift a heavy object. Amended Complaint (12/20/2011),
Doc. No. 8 ¶ 44; Stipulated Scheduling and Discovery Order (2/08/2012), Doc. No. 11 at
2. However, continuing these temporary accommodations would not have been a
reasonable accommodation. Robert v. Bd. Cnty. Comm’rs Brown Cnty., 691 F.3d 1211,
1218-19 (10th Cir. 2012) (holding that an indefinite reprieve from essential functions of a
position is unreasonable as a matter of law). According to Mr. Ruby, even produce clerks
assigned to duties involving the least amount of lifting, such as those on the “cut-fruit”
assignment, had to lift over 30 pounds daily. Ex. 5 at 24:4-11. If Mr. Aman had to make
use of the buddy lift system daily, it would defeat the purpose of having King Soopers’
having a requirement that produce clerks can lift thirty pounds. The “requirement” would
be no requirement at all, if such a work-around was so easily achieved.
Alternatively, Mr. Aman suggests a leave of absence as an accommodation.
Amended Complaint (12/20/2011), Doc. No. 8 ¶¶ 46, 48; Stipulated Scheduling and
Discovery Order (2/08/2012), Doc. No. 11 at 2. Granting a leave of absence would not
have been a reasonable accommodation, however, because Mr. Aman’s medical records
expressed that he had reached maximum medical improvement (“MMI”) and that his
restrictions were permanent. See Ex. 60 at p. 3. Mr. Aman did not present King Soopers
with any medical certification showing or even speculating that he could improve his
condition after reaching MMI. See Ex. 13 at 24:7-10, 24:28-25:11. A leave of absence,
without any basis to believe the employee would be able to perform the essential
functions upon his or her return, is not a reasonable accommodation. Hudson v. MCI
Telecomm. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996)(leave is not reasonable where
plaintiff presents no medical records discussing the prospects of recovery).
Finally, with respect to prong (3), King Soopers did not discriminate against Mr.
Aman by “failing” to provide a reasonable accommodation, see Smith v. Midland Brake,
180 F.3d 1154, 1159 (10th Cir. 1999)(“the ADA defines the term ‘discriminate’ to
include not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant or
employee) (emphasis in original), because, as explained above, there was no reasonable
accommodation it could have provided/available to provide. Because a produce clerk, on
his own steam, must be able to lift thirty pounds, it would not have been reasonable for
King Soopers to offer the accommodation of indefinite co-worker assistance. Because an
indefinite leave or a leave without any basis to believe that the leave will lead to an
employee’s recovery are unreasonable as matters of law, it would not have been
reasonable for King Soopers to accommodate Mr. Aman by giving him additional leave. I
GRANT summary judgment in favor of King Soopers on this claim.
3. Mr. Aman Also Fails to Establish for His Reassignment a prima facie Case
Of Retaliation or Discrimination Under Title VII, Section 1981, or the ADA.
To state a prima facie case for his retaliation claims, Mr. Aman must present
evidence of a causal connection between his protected opposition and the materially
adverse action to which he was subjected. Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 998 (10th Cir. 2011) (Section 1981); Daniels, 701 F.3d at 638 (Title VII).
“Protected opposition can range from filing formal charges to voicing informal
complaints to superiors.” Fye v. Oklahoma Corp. Commission, 516 F.3d 1217, 1218
(10th Cir.2008) citing Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004).
“Although no magic words are required, to qualify as protected opposition the employee
must convey to the employer his or her concern that the employer has engaged in a
practice made unlawful by the [the statute].” Hinds v. Sprint/United Management Co.,
523 F.3d 1187, 1202-1203 (10th Cir. 2008.) Moreover, “[a] plaintiff need not convince
the jury that his employer had actually discriminated against him; he need only show that
when he engaged in protected opposition, he had a reasonable good-faith belief that the
opposed behavior was discriminatory.” Hertz at 1015; Crumpacker v. Kansas Dep’t of
Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003). The good-faith belief must be,
however, both objectively and subjectively reasonable. Little v. United Tech., Carrier
Transicold Div., 103 F.3d 956, 960 (11th Cir.1997)(explaining that a plaintiff must show
“his belief was objectively reasonable in light of the facts and record presented”);
Espinoza v. Dept. of Corrs., 509 Fed.Appx. 724, 725 (10th Cir. 2013)
(unpublished)(good-faith reasonable belief standard has “subjective and objective
Mr. Aman submits that he made a complaint of discrimination to Mr. Ruby in
April of 20083 and that this constitutes protected activity. Mr. Aman’s declaration asserts
that in April 2008 he complained to Mr. Ruby that Mr. Bateson would change his hours
after he selected them and give them to a Hispanic employee with less seniority. Ex. 44,
¶ 15. He claims Mr. Bateson’s actions were racially motivated. Id. Mr. Aman’s reliance
on his declaration and its attendant evidence is insufficient, however, to show that he had
an objectively reasonable belief that his reassignment was motivated by racial
discrimination. The system under which King Soopers’ employees select their shifts and
the deficiencies of Mr. Aman’s supporting evidence both undercut a finding that Mr.
Aman had an objectively reasonable belief that he was being discriminated against.
To begin, scheduling in the produce department is executed in accordance with a
system called Select-A Shift, a collective bargaining agreement subjected to union
review. Ex. 1 at 123:5-7; Ex. 4 [Casados Dep] at 9:13-10:15; Ex. 1 at 124:16-18; Ex. 17
at KS1094. When Mr. Aman submitted an earlier grievance to the union about his hours
As discussed below, Mr. Aman and his declaration statement appear to use the incorrect year. The
evidence points to April 2007 as the date of Mr. Aman’s complaints to Mr. Ruby.
in 2007, the union withdrew the grievance. Ex. 17 at pp. 2-4. The Labor Relations
review documents state that Mr. Aman did receive the most hours possible. Ex. 17 at p.
5. In notes from the grievance investigation, Santos Herrera, discussing his review of Mr.
Aman’s schedules, commented, “We have clearly showed that Mr. Aman was scheduled
according to Select-A-Shift and did have appropriate hours. Grievance denied.” Id. at p.
6. Moreover, when Mr. Aman had previously complained about the schedule, Teresa
Smith, an African American Assistant Store Manager, explained scheduling to him and to
the other produce clerks. Ex. 1 at 121:22-122:9; Ex. 5 at 165:24-166:16; Ex. 15 at 23:2425:20, 60:9-14 ; Ex. 9 at 58:19-60:18. In an effort to temper the undisputed facts
showing that he has a history of not understanding the scheduling system, Mr. Aman
compares his 2008 hours report with that of Hispanic employee Eric Gonzales.
Mr. Aman does not, however, contend that he had access to this information or
was even aware of it at the time he made his complaint. If Mr. Aman did not have access
to the information at the time of his complaint, it cannot form the basis of a reasonable
complaint. Espinoza, 509 Fed.Appx. at 731. Even had Mr. Aman known the hourly
breakdown for Mr. Gonzales at the time of his complaint, the comparison alone, without
any other facts, does not provide reasonable support for a complaint. For the weeks when
Mr Gonzalez had more hours than Mr. Aman, it is perfectly plausible that Mr. Aman did
not select all shifts available to him, see Ex. 19 ¶ M, and/or that Mr. Gonzales picked up
shifts at other stores. Although Mr. Aman need not know every detail about why Mr.
Gonzalez had more hours than him at the time of his complaint, he must have known “at
least some facts that would support an objectively reasonable belief” that Mr. Gonzalez
had more hours than him because of discrimination. Espinoza, 509 Fed.Appx. at 731.
Even were I to find that Mr. Aman’s belief was objectively reasonable, he has not
introduced evidence supporting a causal connection between his protected conduct and
his reassignment. Mr. Aman purports to rely on the “temporal proximity,” see Antonio v.
Sygma Network, Inc., 458 F.3d 1177,1181-82 (10th Cir. 2006), between his complaints to
Mr. Ruby and his reassignment, arguing that Mr. Aman’s reassignment occurred “less
than one month” from the time he voiced his complaints. Doc. 38 at p. 49. In so doing,
however, Mr. Aman uses misleading dates. Mr. Aman’s declaration, which was not
executed until March 21st, 2013, contradicts without explanation his sworn Charge of
Discrimination in which he asserts that he reported the issue of his hours being cut and
given to other employees. Ex. 19 ¶ G; Ex. 70. Mr. Aman’s Charge specifically
complains of both Mr. Bateson and Mr. Gordy harassing him and changing his hours. Ex.
19 ¶ H. Mr. Gordy no longer worked for King Soopers after May 9, 2007. Ex. 15 at
62:9-19; Ex. 9 at 53:13-58:4. Moreover, Mr. Aman expressly asserts in his Charge that
he filed a grievance over the issue. Ex. 19 ¶ I. Mr. Aman’s grievance over this issue was
filed in April 2007. Ex. 17 at KS1094. The undisputed evidence, therefore, shows that
Mr. Aman’s report of these issues to Mr. Ruby occurred, at the latest, in April 2007, not
April 2008. Protracted delays between protected opposition and the adverse action
suggest that the adverse action was not causally related to the protected opposition.
Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1183-84 (10th Cir.2002)
(concluding that a period of “[a]lmost three months” between the protected activity and
the alleged retaliatory act does not permit an inference of causation); Conroy v. Vilsack,
707 F.3d 1163, 1165 (10th Cir. 2013) (“it is . . . patent that if the adverse action occurs
three months out and beyond from the protected activity, then the action’s timing alone
will not be sufficient to establish the causation element”).
Assuming arguendo that Mr. Aman has met his prima facie burden for the
retaliation claims based on his reassignment, he has no persuasive evidence that King
Soopers’ offered reason for his reassignment—that he was unqualified for his position as
a produce clerk because he had medical restrictions prohibiting him from meeting the
position’s requirement that he be able to lift 30 pounds—is pretext. For example, Mr.
Aman argues that his restrictions must have been pretext for discrimination because the
service desk position ‘also had a 30-pound lifting requirement.’” Doc. 38 at 49. This
statement, however, is simplistic, relying exclusively upon the written job description for
the service desk position and placing that description above the reality of what a service
desk clerk does. Although a written job description is one piece of evidence Courts
consider when determining what is an “essential function” of a position, it is hardly
dispositive. Courts also consider the amount of time spent on the job performing the
function and the work experience of past incumbents in the job. 29 C.F.R. § 1630.2(n)(3);
see also Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000). Further, the ADA
requires me to consider “the employer's judgment as to what functions of a job are
essential[.]” 42 U.S.C. § 12111(8). Crucially, I may not “second guess the employer’s
judgment” regarding an essential function. Mason v. Avaya Comm., Inc., 357 F.3d 1114,
1121 (10th Cir.2004).
King Soopers has cited manager testimony concerning the service desk clerk
position. Ex. 7 at 31:5-35:25, 37:10-38:2. At Store No. 5, service desk clerks were not
required to lift 30 pounds. Id. Mr. Aman has provided no contradictory testimony of any
King Soopers’ employee refuting the manager’s testimony. Therefore, because King
Soopers does not regard the ability to lift 30 pounds as an essential function of a service
desk clerk at Store No. 5, I cannot regard the ability to lift 30 pounds as an essential
function of the service desk clerk at Store No. 5. Mr. Aman may not rely exclusively on
the written job description in the face of contradictory employer judgment where he has
no other evidence of service desk clerks lifting 30 pounds.4
Mr. Aman also claims pretext because he “had been performing the duties of a
produce clerk for over a year after his injury.” Doc. 38 at 49. What he neglects to
mention, however, is that he was performing the duties of a produce clerk only with an
accommodation (the “buddy lift”) that was not reasonable for the long term . Mr. Aman
himself admitted that he could not perform the full duties of the position. Ex. 1 at 201:36. Mr. Aman’s remaining arguments for the existence of pretext similarly misstate the
evidence or are irrelevant. Because Mr. Aman cannot demonstrate pretext for the
reassignment, his claims for racial discrimination and ADA retaliation must also fail. See
Daniels, 701 F.3d at 627 (once the employer states a legitimate reason for an adverse
employment action or a materially adverse action, Plaintiff bears the burden of showing
Even if written job descriptions were dispositive, Mr. Aman has not proved that the written job
description upon which he relies is specifically applicable to the service desk position. General
merchandise clerks and service desk clerks share the same classification of “GG Clerk” for purposes of
the written job description. See Ex. 7. General merchandise (“GM”) clerks stock shelves and are
therefore required to engage in regular lifting. Id. The job duties of both service desk clerks and GM
clerks are listed under the written job description, but the job functions of each type of employee are not
interchangeable. Id. GM clerks are never assigned to the service desk and vice versa. Id.
that the reason is a pretext for discrimination or retaliation.) I GRANT summary
judgment in favor of King Soopers on this claim.
B. Mr. Aman’s Discharge Claims Move Forward, Excepting His ADA Discrimination
Mr. Aman’s first and second claims for relief concern his discharge and are for
racial discrimination in violation of Title VII and 42 U.S.C. § 1981. His fifth claim for
relief is that his discharge constitutes discrimination in violation of the Americans with
Disabilities Act. His seventh, eighth, and eleventh claims assert that his discharge was
retaliation in violation of Title VII, 42 U.S.C. § 1981, and the Americans with
Disabilities Act, respectively. Here again, Mr. Aman must proceed under the burdenshifting analysis of McDonnell because he has no direct evidence of discrimination. As
with his reassignment discrimination ADA claim, he cannot make a prima facie claim
under the anti-discrimination provision of the ADA for his discharge, and I accordingly
GRANT summary judgment in King Soopers favor on this claim. For Mr. Aman’s
discharge-based Title VII, 42 U.S.C. § 1981, and ADA retaliation claims, his dischargebased Title VII and 42 U.S.C. § 1981 claims concerning his race, and his public policywrongful discharge claim, on the other hand, I find too many genuine disputes of material
fact preclude summary judgment and therefore DENY summary judgment.
1. Mr. Aman Cannot Establish a Prima Facie Case of Discrimination Under the ADA
Mr. Aman’s ADA discrimination discharge claim fails for the same reasons that
his ADA reassignment claims fail. As stated above, Mr. Aman’s permanent lifting
restrictions do not qualify as a disability under the ADA, and King Soopers’ reliance on
Mr. Aman’s medical report belies any suggestion that King Soopers improperly regarded
Mr. Aman as disabled. See Rakity, 302 F.3d at 1160; Jones, 502 F.3d at 1190 (discussing
reliance on medical evidence in the context of a claim for “regarded as” disability).
Furthermore, Mr. Aman has no prima facie claim for failure to accommodate at
the service desk position, because he did not need an accommodation to work at that
position. As explained above, King Soopers presents evidence showing that while
produce clerks have to lift over thirty pounds daily, a service desk clerk only has to lift
over thirty pounds extremely rarely. How often a service desk employee might be
required to lift a given weight is relevant to whether lifting the weight is an essential
duty. Mason, 357 F.3d at 1119. Even were Mr. Aman to have needed a reasonable
accommodation, he has not met his “burden of coming forward with evidence concerning
his individual capabilities and suggestions for possible accommodations to rebut the
employer's evidence.” White v. York International Corp., 45 F.3d 357 (10th
Cir.1995)(quotations omitted). There is no evidence that Mr. Aman ever requested an
accommodation of any kind related to the service desk position or suggested that one
might be necessary. See Robertson v. Las Animas Cnty. Sheriff’s Dept., 500 F.3d 1185,
1197 (10th Cir. 2007) (absent an obvious need for an accommodation, an employee must
request the accommodation to trigger the ADA’s reasonable accommodation
requirement). I GRANT summary judgment in favor of King Soopers on this claim.
2. Mr. Aman Can Establish for his Discharge a Prima Facie Case of Retaliation
Under Title VII and § 1981
For his Title VII and § 1981 retaliation claims based on discharge, Mr. Aman
relies not upon his complaints to Mr. Ruby, but upon his May 2008 complaints to Ms.
Clarke. Unlike his Title VII and § 1981 retaliation claims based on the complaints to Mr.
Ruby and his reassignment, Mr. Aman can demonstrate a causal connection between the
complaints to Ms. Clarke and the adverse employment action of his discharge.
After being reassigned to the service desk, and after unsuccessfully requesting a
leave of absence in connection therewith, Mr. Aman called Ms. Clarke on May 5, 2008.
Ex. 28. Mr. Aman asked her why he was not allowed to take leave, and Ms. Clarke
explained to him that leave was not an available option because his Job Assessment
indicated that there was a job he could perform. Id. Mr. Aman told Ms. Clarke that he
believed he had been discriminated against and harassed throughout his employment
history. Id. He reported being called names, including “monkey,” and being referred to
as “lazy.” Id. These comments implicate protected activity.
As explained above, a causal connection can be inferred from temporal proximity.
Here, Mr. Aman was terminated by Mr. Ruby on June 2, 2008. Therefore, approximately
one month had elapsed between the protected activity and the adverse material
employment action. I find this timetable supports an inference of a causal connection
between the two.
Because I find Mr. Aman has made out a prima facie case for retaliatory discharge
under Title VII and § 1981, King Soopers must “articulate a legitimate,
nondiscriminatory reason for the decision which adversely affected the employee.”
Martin v. Nannie and the New Borns, Inc., 3 F.3d 1410, 1417 (10th Cir. 1993). King
Soopers contends that Mr. Ruby fired Mr. Aman because Mr. Aman had failed to work
his scheduled shifts at the service desk for a two-week period and his absences were
unexcused. I accept this reason as sufficiently legitimate to shift the burden back to Mr.
Aman, wherefore he must show that King Soopers’ offered explanation is a pretext for an
illegal motive. See Twigg, 659 F.3d at 991, 995 (holding that the employer’s decision to
terminate an employee for failing to comply with the employer’s call-in policy and
failing to report to work constituted a legitimate reason for termination).
To show pretext, Mr. Aman must produce evidence showing weakness,
implausibility, inconsistency, incoherency, or contradiction in King Soopers’ position.
Daniels, 701 F.3d at 639. Virtually the only undisputed fact Mr. Aman offers to show
pretext is the temporal proximity between Mr. Aman’s discrimination complaint, which
coincided with his request for leave as an accommodation, and his discharge. This is
insufficient to show that King Soopers’ reasons for termination were pretexual, however,
because the unexcused absences violated King Soopers’ attendance policy and occurred
temporally between Mr. Aman’s complaints to Ms. Clarke and his discharge. Twigg, 659
F.3d at 1001-02 (“evidence of temporal proximity has minimal probative value in a
retaliation case where intervening events between the employee’s protected conduct and
the challenged employment action provide a legitimate basis for the employer’s action”).
Turning to my assessment of the disputed facts, I am particularly wary of usurping
the jury’s role as trier of fact. See, e.g., Townsend v. Lumbermens Mut. Cas. Co., 294
F.3d 1232 (10th Cir. 2002) (“a rational finder of fact could reasonably find the
defendant’s explanation false and could infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose,”); see also, EEOC v.
Horizon Healthcare Corp., 220 F.3d 1184, 1197 (10th Cir. 2000) (reversing the grant of
summary judgment to the employer in a disparate treatment discrimination case where a
reasonable jury could conclude that defendant’s explanation for its actions was
pretextual). I repeat what I stated in Ziegler v. Inabata of America, Inc., 316 F.Supp.2d
908, 914-915 (D. Colo. 2004) concerning disputed facts:
A trier of fact must resolve these disputed issues in order to
determine if there is a viable claim for [wrongful discharge]. In my
view, these questions are appropriately determined not by a trial
judge on summary judgment, but by a jury whose primary function
is to make determinations about people's conduct based on
subjective standards. See generally, A. Miller, The Pretrial Rush to
Judgment: Are the "Litigation Explosion," "Liability Crisis," and
Efficiency Cliches Eroding our Day in Court and Jury Trial
Commitments? 78 N.Y.U. Law. R. 982, 1132 (June 2003)
(consideration of objective standards of "human behavior,
reasonableness, and state of mind [are] matters historically
considered at the core province of jurors"). In Professor Miller's
words, a decision now that no reasonable juror could find that
Ziegler was terminated for refusing to violate a patent "discount[s]
(1) the importance of a jury's evaluation of witnesses, (2) the
greater sensory impact on the trier of live testimony, and (3) the
value of trial cross-examination based on a full presentation of the
evidence." Id. at 1090.
Ziegler at 914-915.
Here, I find that there are too many genuine disputes of material fact for Mr. Aman to
establish pretext. For example, the parties submit different rosters of acceptable persons
Mr. Aman might have called other than Mr. Ruby to report his absences and request
leave, and the parties quarrel whether other individuals were similarly situated to Mr.
Aman and treated differently. From debating the very existence of certain letters and
phone calls to clashing over the interpretation and practice of King Soopers’ internal
policies, the parties disagree on nearly every fact bearing on whether Mr. Ruby’s
explanation is pretextual. Ultimately, resolution of these issues involves consideration of
objective standards of human behavior, reasonableness, and state of mind and are
“matters historically considered at the core province of jurors.” Id. (internal quotations
omitted). Accordingly, I hold that summary judgment is unavailable to King Soopers on
this claim as well as on any other of Mr. Aman's discharge related claims for which he
successfully establishes his prima facie case.
3. Mr. Aman Can Establish A Prima Facie Case for His ADA
Although Mr. Aman’s May 5, 2008 complaints to Ms. Clarke do not contain fresh
allegations of racial discrimination such that his Title VII and Section 1981 reassignment
related claims pass muster, they are enough to support a prima facie ADA retaliation
claim concerning his discharge. Unlike a claim for discrimination under the ADA, an
ADA retaliation claim does not require that a plaintiff show that he or she is “disabled”
within the meaning of the ADA. So long as a plaintiff has a good-faith belief that he has
been discriminated against on the basis of a disability, an ADA retaliation claim shares
the same criteria as Title VII and §1981 retaliation claims, namely that a plaintiff must
show: “(1) that he engaged in protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse
action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.
2006) (citing Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2414-15
Here, Mr. Aman complained about not receiving his request for leave. Ex. 28.
That complaint is protected activity. Although Mr. Aman was not entitled to leave, he
had an objectively reasonable belief that he was entitled to leave because Ms. Clarke had
previously told him he would be eligible for additional leave. Ex. 1 at 205:25-206:3. No
party disputes that termination is materially adverse. There is temporal proximity to
support an inference of a causal connection, for the termination was twenty days after.
Incorporating by reference the pretext discussion in Section B.2, I again decline to grant
summary judgment in King Soopers’ favor on this claim. I also note that, particular to the
ADA pretext issue, Mr. Aman raises a collateral estoppel argument.
Specifically, Mr. Aman argues that the jury verdict in Julie Jacobson v. King
Soopers, 10-cv-01944-LTB-BNB, another ADA case, estops King Soopers from
contesting whether it made a good faith effort to adopt and enforce policies and
procedures to prevent violations of the ADA. Doc. 38 at 66. King Soopers’ good faith
effort is relevant to whether punitive damages are recoverable. 42 U.S.C. §1981a(b);
Kolstad v. Am. Dental Assoc., 527 U.S. 526, 545 (1999). The Tenth Circuit has
explained the offensive use of the doctrine of collateral estoppel as follows:
When an issue of ultimate fact has once been determined by a valid
and final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436,
443 (1970). Parklane Hosiery sanctioned the offensive use of
collateral estoppel, permitting a plaintiff to "foreclose the
defendant from litigating an issue the defendant has previously
litigated unsuccessfully in an action with another party." 439 U.S.
at 326 n.4. Under Parklane, if the components of collateral
estoppel are satisfied, its benefits of economizing judicial resources
and lessening the burdens of relitigating identical issues already
decided, would be afforded a non-mutual plaintiff provided
defendant had previously had a full and fair opportunity to litigate
the issue. Importantly, the decision to eliminate the mutuality
requirement to permit the plaintiff such a windfall was placed
within the trial court's "broad discretion.” Id. at 331.
In this Circuit, application of collateral estoppel requires: (1) the
issue previously decided is identical with the one presented in the
action in question, (2) the prior action has been finally adjudicated
on the merits, (3) the party against whom the doctrine is invoked
was a party, or in privity with a party, to the prior adjudication, and
(4) the party against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action.
Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000). Furthermore, both
the facts and the law must be substantially the same for the doctrine to obtain. Community
Hosp. v. Sullivan, 986 F.2d 357, 358 (10th Cir.1993). See, e.g., Commissioner of Internal
Revenue v. Sunnen, 333 U.S. 591, 599–601 (1948) (doctrine of collateral estoppel
confined to instances where controlling facts and applicable legal principles remain
Mr. Aman directs my attention to question 8 of the Jacobsen jury verdict, which
asked the jury if it believed King Soopers had proven that it [King Soopers] made a good
faith effort to adopt and enforce policies and procedures to prevent violations of the
ADA. Ex. 58, question 8. The jury answered “no;” it did not believe that King Soopers
had proven it made a good faith effort to adopt and enforce policies and procedures to
prevent violations of the ADA. Id. The policies that were in force during the time period
of the Jacobsen case were the same policies that were in force in 2008. Ex. 55 at 19: –
21: 18. Mr. Aman argues that these facts satisfy the criteria necessary for me to apply
collateral estoppel here and that the jury determination in Jacobsen is “powerful”
evidence of pretext in Mr. Aman’s case. Doc. 38 at 66.
I disagree on both counts. First, collateral estoppel is unavailable because the
good faith issue in Jacobsen is not “identical” to the one in the instant matter. Although
the issues overlap insofar as they both concern ADA law, I cannot say that the controlling
facts are similar enough to make the issues “identical.” For starters, while Ms. Jacobsen
must obviously have introduced evidence to her jury that convinced them that the King
Soopers’ employees relevant to her case did not act in bad faith, Mr. Aman has produced
no evidence to show that the King Soopers personnel implicated in Jacobsen are the same
players involved here. Second, regarding whether the Jacobsen jury determination is
“powerful” evidence of pretext here, Mr. Aman does not explain how the company’s
efforts to adopt and enforce ADA policies influenced King Soopers’ decision to
discharge Mr. Aman.
To recap, I deny summary judgment in King Soopers’ favor on Mr. Aman’s ADA
retaliation discharge claim and, in the event King Soopers is ultimately found by a jury to
have violated the ADA, I decline Mr. Aman’s invitation to estop King Soopers from
arguing that it made a good faith effort to adopt and enforce policies and procedures to
prevent violations of the ADA.
4. Mr. Aman Can Establish a Prima Facie Case of Race Discrimination Under Title
VII and § 1981
A plaintiff may establish a prima facie case of wrongful termination due to race
discrimination by showing that: (1) he belongs to a protected class; (2) he was qualified
for the job; (3) despite his qualifications, he was discharged; and (4) the job was not
eliminated after his discharge. Perry v. Woodward, 199 F.3d 1126, 1139 - 1140 (10th Cir.
1999). Mr. Aman can establish the elements of a prima facie case as follows: (1)
Plaintiff is Ethiopian, Black, Compl. ¶ 7; (2) King Soopers deemed him qualified for the
Service Desk position, Ex. 5 at 37:19–38:16 (Mr. Ruby’s recollection of Mr. Aman’s
reassignment), Ex. 6 at 59:3–60:23 (Ms. Bouknight’s explanation that Mr. Aman
qualified to work at the service desk despite his restrictions); (3) Mr. Aman was
discharged from his Service Desk position, Compl. ¶ 77; (4) After Mr. Aman left, the
Service Desk position was not eliminated and Mr. Aman was replaced. Ex. 54 at 40: 3 –
12; 52: 20 – 53: 8.
Once more incorporating by reference the pretext discussion in Section B.2, I once
more decline to grant summary judgment in King Soopers’ favor on this claim.
5. Mr. Aman’s Discharge In Violation of Public Policy Claim May Proceed
Mr. Aman alleges that King Soopers discharged him, in violation of public policy, for
pursuing a workers’ compensation claim. Am. Compl. 12/20/2011. The Workmen's
Compensation Act of Colorado, Colo.Rev.Stat. §§ 8–40–101 through 8–66–112, awards
“an employee, who is injured in the course and scope of his employment, medical
treatment and compensation for the temporary and permanent loss of income resulting
from the employee's temporary or permanent disability.” Lathrop v. Entenmann's, Inc.,
770 P.2d 1367, 1372 (Colo.App.1989) (citing Cronk v. Intermountain Rural Elec. Ass'n,
765 P.2d 619 (Colo.App.1988)); see also Martin Marietta Corp. v. Lorenz, 823 P.2d 100,
108 (Colo.1992) (citing Lathrop with approval). Employees have a statutory right to have
their work-related injuries compensated by their employers. Id. An employer's retaliation
against an employee for his exercise of this statutory right gives the employee a common
law cause of action to recover resulting damages. Lathrop, 770 P.2d at 1373.
The elements of a public policy-based common law claim for retaliatory discharge
due to an employee’s exercise of workers’ compensation rights are that:
(1) the employee was employed by the defendant;
(2) the defendant discharged the plaintiff; and
(3) the plaintiff was discharged for exercising a job-related right or privilege to
which he was entitled.
Id. at 1372–73.
Mr. Aman satisfies prongs (1) and (2), but cannot demonstrate that King Soopers
discharged him for his exercising of his workers’ compensation rights. Mrs. Bouknight
testified that as of May 2008 Mr. Aman’s workers’ compensation claim was “over.” Ex.
55 at p. 137:17-23. Mr. Aman never presented King Soopers with any information
suggesting he had experienced an aggravation of his original injury such that he would
have a new workers’ compensation claim. Indeed, both his MMI and IME stated
substantially identical restrictions and characterized them as permanent. Ex. 5 (MME);
Ex. 25 (IME). The IME was done March 18, 2008, five months after the MMI, and does
not indicate that Mr. Aman’s condition declined whatsoever in the period between
assessments. In other words, Mr. Aman has not presented any evidence that he had any
workers’ compensation rights to claim that he had not already claimed before being
discharged. Furthermore, there is no evidence that any King Soopers’ employee thought
that Mr. Aman was exercising his workers’ compensation rights when he failed to come
in for his scheduled shifts. I GRANT summary judgment in favor of King Soopers on
C. Hostile Work Environment Discussion
To establish a claim for hostile work environment, Mr. Aman must show that there
was a hostile environment at King Soopers that was sufficiently severe or pervasive to
alter the conditions of his employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
67 (1986). Evaluation of whether the hostility is severe or pervasive is “quintessentially a
question of fact.” O’Shea v. Yellow Tech. Serv’s, 185 F.3d 1093, 1098 (10th Cir.
Whether a work environment is hostile is not a mathematical calculation; in some
cases, a single incident of threatening conduct may be sufficient. Lockard v. Pizza Hut,
Inc. 162 F.3d 1062, 1071-72 (10th Cir. 1998). In analyzing a hostile work environment
claim, a court must consider the totality of the circumstances, examining the record as a
whole. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (20020; Harsco
Corp. v. Renner, 475 F.3d 1179, 1186 – 87 (10th Cir. 2007). Mr. Aman argues that the
racial discrimination he experienced at King Soopers was sufficiently severe or pervasive
that his employment was harmfully altered. In support of this claim, Mr. Aman recites
The events include, inter alia, (1) produce manager Don Gordy’s injuring Mr. Aman
in May 2007, Doc. 36 at p. 40; (2) instances of Mr. Aman being called racial derogatory
names like “African monkey” in 2005 and before May 2007, id.; (3) King Soopers
refusing to take action when Mr. Aman complained about the harassment or
discrimination, id.; (4) King Soopers denying him time off for religious observances in
2006, id.; (5) Mr. Ruby and Mr. Bateson mocking his injury when he returned to work in
June 2007, id.; (6) King Soopers maintaining that it sent Mr. Aman a letter dated May 20,
2008 when Mr. Aman claims it did not, Doc. 39 at p. 59; (7) King Soopers claiming it
called Mr. Aman when Mr. Aman claims it did not, id.; and (8) Mr. Aman’s belief that
King Soopers imposed different standards on him than on others for calling in sick/taking
sick leave, id.
King Soopers counters by first contending that any hostile environment claim
is time barred because events (1)-(5) that Mr. Aman recites to support his hostile work
environment claim occurred outside of the applicable statutory time limits.5 I disagree.
Although events (1)-(5) did occur outside of the 300 day filing time period, events (6)-(8)
occurred within 300 days of his filing a Charge of Discrimination. The timely filing
provision only requires that a Title VII or ADA plaintiff file a charge within a certain
number of days after the unlawful practice happened. It does not matter, for purposes of
For a hostile work environment claim grounded in Title VII or the ADA, the 300 day filing time period of 42
U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1), which here would be a deadline of May 17, 2008, applies. Hostile
work environment claims under § 1981 are subject to a four year statute of limitations. Tademy v. Union Pacific
Corp., 614 F.3d 1132, 1152-53 (10th Cir. 2008). Here, the limitation begins from the time the lawsuit, not the
Charge of Discrimination, was filed extends back to November 15, 2007. See Doc. 1 [filed November 15, 2011].)
the statute, that some of the component acts of the hostile work environment fall outside
the statutory time period. Provided that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability. Nat’l R.R. Passenger Corp. v. Morgan,
356 U.S. 101, 117 (202). King Soopers also relies upon Nat’l R.R. Passenger Corp, but
King Soopers completely misstates the holding and conflates (to its advantage, of course)
claims regarding specific discrete acts and claims specifically for a hostile work
King Soopers urges me to rule that events (6)-(8) did not contribute to Mr. Aman’s
allegedly hostile work environment and that the events are therefore unconnected acts
that may not be combined with the earlier allegedly harassing conduct. I reject King
Soopers’ request to draw such an inference in its favor (not least because King Soopers is
the moving party, and facts on summary judgment are viewed in the light most favorable
to the non-moving party, Simms v. Okla. ex rel. Dep't of Mental Health & Substance
Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999), however, and believe a jury should
decide whether the conduct is related. For example, events both before and after May 17,
2008 deal with the question of whether King Soopers treated Mr. Aman differently from
others because of his race. Specifically, Mr. Aman’s claim that King Soopers refused to
take action when he complained about harassment or discrimination predates May 17,
2008 and his claim that Mr. Ruby applied different standards regarding calling in and
sick leave to him because of his race comes both before and after May 17, 2008. King
Soopers says a failure to investigate is not adverse action, but that proposition, cited from
Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir.2012), is irrelevant.
There was no hostile work environment claim in Daniels. That a failure to investigate is
not an adverse action is pertinent only to claims having the element of an employee
suffering adverse employment action. No “adverse employment action” is required for a
hostile workplace environment claim. Here, a failure to investigate discriminatory
conduct may have altered Mr. Aman’s environment in the sense that discrimination was
allowed to continue and intensify. Insofar as Mr. Aman’s hostile work environment
claim stems from alleged Title VII, ADA, and/or § 1981 violations, I conclude that a
reasonable jury could find all or enough of the events alleged in support of the claim to
be connected such that the claim will not fail on summary judgment for lack of
ii. Mr. Aman Has Stated An Actionable Hostile Work Environment Claim
Regardless of whether Mr. Aman’s hostile work environment claim is grounded in
Title VII, the ADA, or § 1981, he must present sufficient evidence that the alleged
conduct, considered in the totality of the circumstances, was because of a characteristic
protected by the applicable law, and was pervasive or severe enough to alter the terms,
conditions or privileges of employment. Morris v. City of Colorado Springs, 666 F.3d
654, 658 (10th Cir. 2012) (applying the standard to Title VII); Witt v. Roadway Express,
136 F.3d 142, 1428 (10th Cir. 1998) (applying same to 42 U.S.C. § 1981); Thomas v.
Avis Rent A Car, 408 Fed.Appx. 145, 147 (10th Cir. 2011) (applying same to ADA). To
be actionable, conduct must be both objectively and subjectively hostile or abusive.
Morris, 666 F.3d at 664.
King Soopers makes two fundamental objections to the sufficiency of Mr. Aman’s
evidence. First, King Soopers more or less repeats its argument regarding timeliness to
argue that the events alleged by Mr. Aman are simply too unrelated or too isolated to
constitute a work environment that was pervasively or severely hostile. Second, King
Soopers contends Mr. Aman cannot show discriminatory motivation for the events
“A plaintiff does not make a sufficient showing of a pervasively hostile work
environment “by demonstrating a few isolated incidents of ... sporadic ... slurs.... Instead,
there must be a steady barrage of opprobrious ... comments.” Morris, 666 F.3d at 666
(quoting Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994)(internal quotation marks
omitted)). Moreover, Title VII, though it does prohibit racial discrimination, “does not
set forth a general civility code for the American workplace.” Burlington N. Santa Fe Ry.
Co., 548 U.S. at 68 (quotations omitted).
On the other hand, the more despicable the comments, the less pervasiveness is
required. The incident with Mr. Gordy may be enough on its own. See Lockard v. Pizza
Hut, Inc. 162 F.3d at 1072 (holding that a single incident of physically threatening
conduct can create an abusive environment contrary to law). Although Mr. Aman does
not present facts as extreme as some successful plaintiffs have, see Tademy v. Union
Pacific Corp., 614 F.3d 1132, 1152-53 (10th Cir. 2008), it is well within the realms of
reason and law to say that the question of whether King Soopers’ conduct was
sufficiently severe or pervasive to the point of altering Mr. Aman’s work environment is
best determined by a jury.
For the foregoing reasons, King Soopers’ Motion for Summary Judgment, Doc. 25
is GRANTED in regard to
1. Mr. Aman’s Third and Fourth Claims (racial discrimination based on
reassignment per Title VII and 42 U.S.C. § 1981(a));
2. Mr. Aman’s Fifth Claim (discrimination violation of the ADA based on
3. Mr. Aman’s Sixth Claim (violation of the ADA based on reassignment)
4. Mr. Aman’s Ninth and Tenth Claims (retaliation claims under Title VII and 42
U.S.C. § 1981(a) based on reassignment);
and is DENIED in regard to
5. Mr. Aman’s First and Second Claim (racial discrimination based on discharge
per Title VII and 42 U.S.C. § 1981(a) );
6. Mr. Aman’s Seventh and Eight Claims (discharge-based retaliation per Title
VII and 42 U.S.C. § 1981(a);
7. Mr. Aman’s Eleventh Claim (retaliation under the ADA based on discharge)
8. Mr. Aman’s Twelfth Claim (hostile work environment); and
9. Mr. Aman’s Thirteenth Claim (wrongful discharge in violation of public
March 11, 2014
BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge
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