Muragara, v. MacKenzie Place, The-Colorado Springs, Employer.,
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT: Mackenzie's Motion for Summary Judgment 24 is GRANTED IN PART, insofar as Mackenzie is entitled to summary judgment on Mr. Muragara's claims of ho stile environment harassment and disparate treatment, and DENIED IN PART, insofar as Mr. Muragara's retaliation claim will proceed to trial. The parties shall begin preparation of a joint proposed Pretrial Order as directed by the Trial Preparation Order (#20) and shall jointly contact chambers to schedule a Pretrial Conference within 14 days. by Chief Judge Marcia S. Krieger on 1/28/14.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 12-cv-00891-MSK-BNB
JECKONIAS N. MURAGARA,
MACKENZIE PLACE UNION, LLC, d/b/a The Mackenzie Place - Colorado Springs,
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court pursuant to the Defendant’s (“Mackenzie”)
Motion for Summary Judgment (# 24), and Mr. Muragara’s pro se1 response (# 25).2
The Court construes Mr. Muragara’s pro se pleadings liberally. Haines v. Kerner, 404
U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook
technical formatting errors and other defects in Mr. Muragara’s use of legal terminology and
proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not
relieve Mr. Muragara of the duty to comply with the various rules and procedures governing
litigants and counsel or the requirements of the substantive law, and in this regard, the Court will
treat Mr. Muragara according to the same standard as counsel licensed to practice law before the
bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32
F.3d 452, 455 (10th Cir. 1994).
Mr. Muragara’s summary judgment response was filed almost two months later than the
deadline set by D.C. Colo. L. Civ. R. 7.1(C). Mackenzie moved to strike his response on this
ground, but the Court denied that motion without prejudice for failure to confer under D.C. Colo.
L. Civ. R. 7.1(A), and Mackenzie did not refile it or file a reply brief preserving an objection to
the timeliness of the response. Nevertheless, the Court has several observations on this point: (i)
Mr. Muragara’s response was undeniably untimely; (ii) Mr. Muragara states that this delay was
due to not receiving a copy of Mackenzie’s motion by mail (he contends, without support, that
Mr. Muragara (a black male and former citizen of the Congo) commenced this action in
state court in or about February 2011. His Complaint (# 3) appears to allege that he was
terminated from his employment by Mackenzie in October 2010, ostensibly for insubordination.
Mr. Muragara contends that his termination was in retaliation for his having complained to
Mackenzie officials about racial and national origin harassment that Mr. Muragara was receiving
from co-workers. A fair reading of his Complaint indicates that he asserts claims for a hostile
environment based on race, a hostile environment based on national origin, and retaliation, all in
violation of Title VII, 42 U.S.C. § 2000e et seq.3 Mackenzie now moves (# 24) for summary
judgment on all of Mr. Muragara’s claims.
The following facts are treated undisputed, except where a factual dispute is expressly
Mackenzie’s counsel is “lying” about representing that he was served with a copy of the motion);
(iii) notwithstanding that assertion, Mr. Muragara never sought leave to file a response out-oftime; (iv) as noted above, despite being a pro se litigant, Mr. Muragara is obligated to comply
with the established procedural rules; (v) however, Mackenzie has not identified any particular
prejudice that it suffered as a result of Mr. Muragara’s untimely response; and (vi) for the
reasons stated herein, the Court would likely reach the same result on the merits regardless of
whether Mr. Muragara’s response was considered or not. The Court advises Mr. Muragara that
any future failure to strictly comply with deadlines set by the Federal Rules of Civil Procedure,
the Court’s local rules, or orders of the Court will result in the imposition of appropriate
sanctions against him, up to and possibly including dismissal of his remaining claim.
Mr. Muragara’s summary judgment response appears to suggest that he was also
discriminated on the basis of his religion, insofar as Mackenzie refused his requests to have
Sundays off so he could attend church. Mr. Muragara does mention religious discrimination in
the narrative portion of his Complaint, but his Charge of Discrimination with the Colorado Civil
Rights Division does not include any reference to religious discrimination. Because the filing of
a charge of discrimination encompassing each discrete, unrelated type of discrimination is a
jurisdictional prerequisite to suit under Title VII, see Jones v. Runyon, 91 F.3d 1398, 1400 (10th
Cir. 1996), Mr. Muragara’s failure to include religion in his Charge of Discrimination deprives
this Court of jurisdiction over such a claim.
noted.4 Mackenzie is a retirement community. On or about August 30, 2010, it hired Mr.
Muragara as a Host in its Food and Beverage Department. In that position, he was responsible
for “greeting, maintaining [a] reservation list and seeing that residents and guests are seated in
the restaurant in a friendly and efficient manner.” Within a few days, Mr. Muragara was
involved in various minor conflicts with other employees. He refused to perform certain tasks
that had been requested of him, he used of a personal cell phone in the dining room despite
having been admonished not to do so, and he interrupted other employees who were dealing with
customers using a raised voice in confrontation with co-workers.5
The September 27 discipline6
On September 27, 2010, Mr. Muragara was apparently involved in a verbal altercation
It appears that neither side conducted any discovery in this case. The Court is thus left
with only the affidavit of Tracy Sudman, Mackenzie’s Vice President of Human Resources, and
certain exhibits with which to reconstruct the events at issue here. Mr. Muragara has supplied
only his own brief. Although that filing is not sworn to under penalty of perjury, the Court will
assume that, if called upon to so swear to the truth of the contents of that response, Mr. Muragara
would do so. Thus, the Court treats Mr. Muragara’s response as an affidavit pursuant to 28
U.S.C. § 1746.
Given the relatively straightforward presentation of the relevant narrative in Ms.
Sudman’s affidavit, and Mr. Muragara’s discursive, verbose, and often irrelevant response, the
Court derives the factual posture primarily from Mackenzie’s motion papers and supporting
exhibits. The Court has made all reasonable efforts to ascertain and identify any specific
instances in which Mr. Muragara’s response offers specific, non-conclusory assertions that
dispute any of Mackenzie’s proffered facts.
Mr. Muragara contends that, despite his short tenure on the job, he was once named
“employee of the month,” and was often given praise by his managers. The Court will assume,
for purposes of this motion, that Mr. Muragara received both praise and criticism at various
As will be copiously demonstrated herein, the record is extremely imprecise on the dates
of pertinent events in this case, to the point that the Court is unable to state, with any reliability,
the actual date of any particular event.
with Jessica Lawler, a co-worker. (The dispute is described as Ms. Lawler asking Mr. Muragara
to help her during a busy period by refilling water glasses at a particular table, Mr. Muragara
refusing to do so, and Ms. Lawler confronting Mr. Muragara about his refusal.) Judith Hankerd,
Mr. Muragara’s immediate supervisor, prepared a “Corrective Action Plan” – essentially a
disciplinary notice, regarding the event.7 The notice advised Mr. Muragara that he “was raising
his voice on the dining room floor as he was arguing with the servers about their request for him
to help with the guests,” and had been accused of talking on his cell phone in the bar area and
drinking at the host stand. Mr. Muragara was apparently required to complete a “training shift”
with Ms. Hankerd on September 28, during which she reviewed his job description and clarified
certain rules he was to follow.
According to Mr. Muragara’s summary judgment response, he alleges that in conjunction
with the September 28 training meeting, he complained to Ms. Hankerd about “racial slurs,
intimidation, and being bullied at work place by co-workers.” Mr. Muragara’s response does not
specifically recite precisely what he allegedly told Ms. Hankerd at this meeting, stating only that
he “reported about the misconduct, intimidation, harassment, and bullying from Jessica toward
[him] which happened on September 26, 2010.”8 Mackenzie disputes this assertion but has
supplied no affidavit from Ms. Hankerd or anyone else with personal knowledge of the training
The date on which the notice was prepared is uncertain. Ms. Hankerd dated it as of
September 27, but the text of the notice references, in past tense, remedial training that occurred
on the evening of September 28, indicating that the notice was prepared at some point after that.
When (or even if) it was actually delivered to Mr. Muragara is unknown.
The Court assumes Mr. Muragara means the event occurred on September 27, although,
given the state of the record, it cannot be sure.
session.9 Thus, the Court understands Mackenzie to deny that Mr. Muragara complained of
harassment or racial epithets at this time.
Mr. Muragara’s Charge of Discrimination, filed with the Colorado Civil Rights Division
(and attached to his Complaint), offers slight support to both sides’ positions. It states that “On
[September 28, 2010],10 I complained to my supervisor that I was being harassed by my coworkers with racial and verbal harassment. Although asked, I did not define my complaint.”
(Emphasis added.) Thus, taken in the light most favorable to Mr. Muragara, the evidence
suggests that Mr. Muragara spoke to Ms. Hankerd on September 28, making generalized
complaints “harassment and bullying” by his co-workers, but he did not specifically report any
particular racial slurs that were allegedly used against him.
The October 5 discipline/termination
Mackenzie disciplined Mr. Muragara again on October 5, 2010. On that date, Ms.
Hankerd prepared another Corrective Action Plan notice for Mr. Muragara. That notice
described an incident that occurred on September 29, 2010:
Chef Lauren found [Mr. Muragara] on his cell phone at the server
Ms. Sudman’s affidavit relates Ms. Hankerd’s denial of having received any complaint of
harassment from Mr. Muragara on September 28, but this is inadmissible hearsay.
The actual text of the Charge of Discrimination alleges that Mr. Muragara made his first
complaint of racial harassment to management on “August 31, 2010.” Given that Mr. Muragara
had only begun working on August 30, 2010, and that his summary judgment response makes no
assertion that he experienced hostility and sought out Ms. Hankerd to complain after only one
day of work, the Court can only assume that this date in the Charge of Discrimination is in error.
The Court assumes that the correct date of this event is on or about September 28, 2010, the date
Mr. Muragara’s summary judgment response gives for his complaint to Ms. Hankerd. However,
as mentioned later, a formal written complaint by Mr. Muragara does mention harassment
beginning on August 31, 2010, although it does not allege that Mr. Muragara lodged a complaint
with management as of that date.
drink station speaking loudly. She asked him to put the cell phone
away. She then told him he was not allowed to use his cell phone
while at work unless it was an emergency. [He] began to argue
with Chef Lauren about this policy and she asked him to please
stop. He continued to raise his voice at her and followed her into
the kitchen. She repeatedly told him to lower his voice but he
continued to argue.
The notice stated that, in light of previous discipline, Ms. Hankerd “recommended” that Mr.
Muragara be terminated.
It is not clear to whom that “recommendation” was made. The record includes a
“Separation Report” document, also completed by Ms. Hankerd, that apparently effectuated Mr.,
Muragara’s termination, although it, too, is ambiguous. Mr. Muragara’s “separation date” is
given as “10/5/2010” (apparently corrected from, or perhaps to, “11/5/2010”), and Ms. Hankerd
has dated her signature on the form as “8/27/10” (which is Mr. Muragara’s hire date). Nothing
in the record conclusively demonstrates whether Mr. Muragara was given a copy of either the
October 5 Corrective Action Plan or when (and how) he was notified of his termination.
Mr. Muragara does not materially dispute the basic contention in the October 5
Corrective Action Plan: that he had a confrontation with “Chef Lauren” (Lauren Stewart), over
the issue of whether Mr. Muragara could use his cell phone at the server station. He appears to
disagree with the date of that incident – he places it on October 5, the same day Ms. Hankerd
prepared the Corrective Action Report – and his version of the incident apparently begins earlier.
He contends that, on that date, he complained to Ms. Hankerd about an incident involving a coworker named Lindsay. (The Court understands that Mackenzie again denies that Mr. Muragara
made any complaints of discrimination or unlawful harassment to Ms. Hankerd or any other
supervisory employee until after being told of his termination.) Mr. Muragara states that Lindsay
“was having a hard time with Chef Lauren,” and that Lindsay “suddenly came toward [him] and
started harassing, insulting, and bullying at him.” Mr. Muragara does not elaborate on what
Lindsay said or did, much less specify what he told Ms. Hankerd about this event. He contends
that Ms. Hankerd told Mr. Muragara not to take Lindsay’s comments personally and to
understand that Lindsay was actually angry at Ms. Stewart. Thereafter, Mr. Muragara was
confronted by Ms. Stewart about using his cell phone during work. (Mr. Muragara does not
address Mackenzie’s contention that he proceeded to argue with Ms. Stewart or raised his voice.)
Mr. Muragara contends that Ms. Stewart’s instruction not to use his phone during work time was
contrary to what other employees were allowed to do. Notably, Mr. Muragara contends that Ms.
Stewart stated to him that “as I did it to Lindsay, I’ll take care of you too.”
It is somewhat difficult to untangle the specifics of this particular event. Mackenzie
contends that the altercation between Mr. Muragara and Ms. Stewart occurred on September 29,
but that the Corrective Action Plan memorializing it was not issued until October 5. (No
explanation is offered for the delay between these two dates.) Mr. Muragara unambiguously
asserts that his confrontation with Lindsay, his report of that confrontation to Ms. Hankerd, and
his subsequent confrontation with Ms. Stewart all occurred on October 5. Mr. Muragara’s
Charge of Discrimination is no help in resolving this disparity; if anything, it only muddies the
waters. It indicates that Mr. Muragara had received re-training relating to the first Corrective
Action Plan on September 29, 2010 (rather than September 28, as the Corrective Action Plan
recites); that he was thereafter “suspended” from that date until October 5, 2010; that on October
5, 2010, he was “discharged for alleged insubordination as soon as [he] came in”; and that it was
only after having been informed of his termination that he “let the manager know [he] had been
At some unspecified time and under unknown circumstances, Mr. Muragara delivered a
letter dated October 5, 2010, to Ms. Hankerd. The letter is not mentioned in Ms. Sudman’s
affidavit or, in any detail, in Mr. Muragara’s response. Mackenzie mentions the October 5 letter
in its briefing (and discovering, “for the first time,” Mr. Muragara’s complaints of co-worker
harassment) but does not describe when or how it obtained the letter. As noted above, the
Charge of Discrimination suggests that it was delivered to Mackenzie after Mr. Muragara was
told he was terminated, but how long after (i.e. whether the letter was written before or after he
was advised of his termination) is unclear. The letter restates Mr. Muragara’s contention that he
was harassed by co-workers and subjected to “ethnic slurs” (which, once again, are not specified
or otherwise elaborated upon in the letter) since August 31, 2010; references “our meeting” on
September 28 and an apparent discussion between Mr. Muragara and Ms. Hankerd “on how you
should prevent the harassment at the workplace”; and states that Mr. Muragara will not tolerate
“retaliation of any kind . . . because I’ve complained about preventing harassment.” It is not
entirely clear whether this final passage refers to Mr. Muragara being “suspended” on or about
September 28, 2010 (as mentioned in his Charge of Discrimination, but not in his summary
judgment response),11 or whether it is in reference to his discharge (both words are used in
different places the letter, and both in a somewhat ambiguous context).12
Mr. Muragara’s summary judgment response does mention a “suspension which occurred
on October 5, 2010.” The Court assumes this is actually a reference to his termination as of that
date, but, once again, cannot be certain given the ambiguity in the record.
Ms. Sudman subsequently commenced an investigation into Mr. Muragara’s allegations
in the letter, but ultimately concluded that she could not substantiate them. Having occurred
after the relevant events, that investigation is ultimately irrelevant to the issues presented on the
Mackenzie’s summary judgment motion contends: (i) Mr. Muragara’s hostile
environment claims fail as a matter of law because the harassment he identifies is not sufficiently
severe or pervasive and because he fails to demonstrate a basis for Mackenzie’s liability for any
co-worker harassment of which it was not informed; (ii) any disparate treatment claim relating to
Mr. Muragara’s discharge fails because Mr. Muragara cannot establish adequate performance or
show that Mackenzie’s stated reason for terminating him (insubordination) is pretextual; and (iii)
any retaliation claim fails because Mr. Muragara did not engage in protected activity prior to his
termination; that if he did, he cannot demonstrate a causal connection between it and his
termination; and even if he can, he cannot show that Mackenzie’s stated reason for his
termination was pretextual.
A. Standard of review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
what facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is Agenuine@ and summary judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. Hostile environment claims
The Court assumes that Mr. Muragara asserts claims for both racially-based and national
origin-based hostile work environments. To establish such a claim, Mr. Muragara must show: (i)
that he was subject to unwelcome harassment; (ii) the harassment was so severe and pervasive as
to alter the terms and conditions of his employment; (iii) the harassment was based on his race
and/or national origin; (iv) the harassment was both objectively and subjectively offensive; and
(v) there is a basis to hold Mackenzie liable for the harassment. See generally Faragalla v.
Douglas County School Dist., 411 Fed.Appx. 140, 151-52 (10th Cir. 2011) (unpublished), citing
Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008).
The Court agrees with Mackenzie that Mr. Muragara has failed to come forward with
specific facts demonstrating that any racially- or national origin-based harassment he received
was sufficiently severe or pervasive. Mr. Muragara’s response offers only his own conclusions
about the contents of the harassing comments and actions he suffered; at no time does he identify
any of the specific “epithets” directed at him, nor describe in any meaningful detail any of the
other conduct underlying these claims. His conclusory assertions are insufficient to carry Mr.
Muragara’s burden of demonstrating a genuine dispute of fact. See James v. Wadas, 724F.3d
1312, 1315 (10th Cir. 2013). At best, the record reflects that Mr. Muragara had a brief verbal
altercation with Ms. Lawler, and another such altercation with Ms. Stewart, without any
evidence of either woman using racial slurs against Mr. Muragara, or even resorting to particular
insults directed towards him. Mr. Muragara generalized contentions that unnamed employees
directed unspecified “epithets” and “harassment” against him is simply too conclusory to survive
Even if the Court were to consider Mr. Muragara’s Charge of Discrimination, attached to
his Complaint, to be an additional affidavit in support of his claims, his hostile environment
claims nevertheless would fail. That Charge adds only the additional, bowdlerized assertion that
“my co-worker had called me a N%@ger,” without any further elaboration. Even if on one
occasion, an unidentified co-worker called Mr. Muragara a “nigger,” as offensive and
unnecessary as the comment is, it is sufficient of itself to create an actionable claim of hostile
work environment. See Foreman v. Western Freightways, LLC, ___ F.Supp.2d ___, 2013 WL
3975162 (D.Colo. Aug. 1, 2013) (slip op.) and cases cited therein. Moreover, because Mr.
Muragara’s admits that he did not actually specify the nature of the “epithets” when he
complained to Ms. Hankerd (despite being asked), the Court has grave doubt that Mr. Muragara
can establish Mackenzie’s liability for a co-worker’s harassment. Accordingly, Mackenzie is
entitled to summary judgment on Mr. Muragara’s hostile environment claims.
C. Disparate treatment
Assuming that Mr. Muragara is asserting a disparate treatment claim – i.e. that his
termination was motivated by racial or national origin animus – the Court again agrees with
Mackenzie that Mr. Muragara has failed to demonstrate a colorable claim.
To state a claim for disparate treatment, Mr. Muragara must first establish a prima facie
case by showing: (i) he is a member of a protected class; (ii) he possessed the minimum
objective qualifications for his position; (iii) he suffered an adverse employment action; and (iv)
that action occurred in circumstances giving rise to an inference of discrimination. If he carries
that burden, Mackenzie must articulate a legitimate, non-discriminatory reason for the adverse
action, and Mr. Muragara bears the burden of showing that proffered reason to be a pretext for
discrimination. See Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir.2012).
The Court rejects Mackenzie’s initial argument - that Mr. Muragara cannot establish a
prima facie case because he was not “qualified” for his position. Mackenzie’s argument – that
he was “unqualified” because he performed poorly – reflects a misunderstanding of this element.
Consistent with the prima facie case’s task of screening out only the most meritless claims, the
“qualification” element inquires only as to whether the employee met the bare minimum
objective qualifications for the job he held or desired. The requirement of qualification is not an
issue pertaining to the employee’s actual job performance.13
However, the Court agrees with Mackenzie that Mr. Muragara cannot demonstrate the
fourth element of the prima facie case – that his termination arose in circumstances giving rise to
an inference of racial or national origin discrimination. Mr. Muragara does not dispute that he
was disciplined twice in short succession, both times due to use of his cell phone while at work,
and that the confrontation that led to his termination – that with Ms. Stewart – occurred when he
was using his phone. He contends, in mostly conclusory terms, that other employees were
allowed to use their phones during work hours, but he does not specify the races or national
origins of such employees, nor has he articulated any facts indicating that the person who
decided to terminate him – Ms. Hankerd – harbored any racial or national origin animus against
him. Indeed, it appears that Ms. Hankerd hired him two months earlier.14
Courts are reluctant to infer discriminatory animus when the same person both hires and
fires an employee within a short period of time, if the employee’s protected classification is
Such interpretation would conflate the qualification requirement with the employee’s
ultimate burden of disproving the employer’s oft-proffered justification that the adverse action
was taken because of the employee’s poor performance. EEOC v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1193 (10th Cir. 2000).
Mackenzie represents that Ms. Hankerd’s signature appears on Mr. Muragara’s job
application, “approving” it. The signature is illegible, but in the absence of a dispute on that
point, the Court will assume that it is Ms. Hankerd’s.
facially obvious. See generally Burney v. County Commissioners, 413 F.Supp.2d 1195, 1200
(D.Kan. 2006) and cases cited therein. Here, Mr. Muragara’s races, and presumably his foreign
ancestry, are characteristics that would have been obvious to Ms. Hankerd at the time of his
hiring. Thus, the Court declines to infer that such characteristics were the basis of her deciding to
fire him only a few months later. Thus, the Court finds that Mr. Muragara fails to demonstrate a
prima facie case of disparate treatment on the basis of race or national origin relating to his
termination, and Mackenzie is entitled to summary judgment on any such claim.
To establish a claim of prohibited retaliation under Title VII, Mr. Muragara must show:
(i) that he engaged in protected activity; (ii) that he suffered an adverse employment action; and
(iii) there is a causal connection between the protected conduct and the adverse action. If he
carries that burden, Mackenzie is obligated to articulate a legitimate, non-retaliatory reason for
the adverse action, and Mr. Muragara must ultimately show that proffered reason to be a pretext
The record, taken in the light most favorable to Mr. Muragara, establishes that he
engaged in protected conduct by complaining of perceived racial harassment to Ms. Hankerd,
orally on September 28, and again on October 5. This fact is asserted both in Mr. Muragara’s
Charge of Discrimination and in his response, and Mackenzie’s submissions (particularly the
hearsay assertion in Ms. Sudman’s affidavit that Ms. Hackerd denies hearing such a complaint
on September 28) do not clearly and unambiguously refute that contention. It is also undisputed
that Mr. Muragara suffered an adverse action – termination of his employment on October 5.
Mackenzie argues that there is no apparent causal connection between these events.
Typically, a causal connection is demonstrated by close temporal proximity between the
protected act and adverse action. Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013). Here,
Mr. Muragara’s complaint to Ms. Hankerd on September 28 preceded his termination by only
one week. This is sufficient to raise an inference of causation.
Mackenzie argues that no inference of causation can be found here because Mr. Muragara
did not lodge any complaints until after his termination on October 5. This contention
improperly assumes away Mr. Muragara’s contention that he lodged a complaint with Ms.
Hankerd on September 28. Because the Court must resolve all disputed facts in Mr. Muragara’s
favor at this stage of the litigation, it rejects Mackenzie’s argument on this point.
Having concluded that Mr. Muragara has demonstrated a colorable prima facie claim of
retaliation, the Court turns to Mackenzie’s proffered reason for his termination: insubordination
towards Ms. Stewart and poor performance generally. The burden shifts to Mr. Muragara to
show that reason is false, and that retaliation for making a complaint was the real reason for the
termination. To show the proffered justification to be pretextual, Mr. Muragara must
demonstrate that Mackenzie’s reasons suffer from such “weakness, implausibility, inconsistency,
incoherency, and contradiction” that the jury could find them unconvincing. Debord v. Mercy
Health System of Kansas, 737 F.3d 642, 655 (10th Cir. 2013).
The Court finds the record here to be so inconsistent and incoherent as to raise a
colorable inference that Mackenzie’s proffered reason for Mr. Muragara’s termination is a
pretext for retaliation. The Court observes that although Mr. Muragara admits that he was using
his phone at the server station when confronted by Ms. Stewart, he contends – and the Court
treats as true for purposes of this motion – that other employees were permitted to use their
phones at this location. Moreover, both Mr. Muragara’s Charge of Discrimination and his
summary judgment response emphasize that Ms. Stewart had expressed an intention to “get rid
of me,” permitting the inference that Ms. Stewart may have instigated or embellished Mr.
Muragara’s “insubordination” to effect his termination. Coupled with these facts are a variety of
inconsistencies in the record that call into doubt the very timeline of events here. Ms. Hankerd’s
initial Corrective Action Plan appears to have been backdated to September 27, given that it
recites events occurring on September 28, which, conveniently, is the date Mr. Muragara
allegedly made his first complaint to her. The second Corrective Action Plan, by contrast, is
dated nearly a full week after the event giving rise to it allegedly occurred, with no explanation
by Mackenzie for that delay. Mr. Muragara’s Separation Report is misdated in two locations,
calling it into doubt as well. Taken together, these facts might be sufficient to permit a
reasonable factfinder to disbelieve Mackenzie’s stated reason for terminating Mr. Muragara and
conclude that the real reason for that termination was that he had complained to Ms. Hankerd
about being racially harassed.
Accordingly, Mr. Muragara’s retaliation claim will proceed to trial.
For the foregoing reasons, Mackenzie’s Motion for Summary Judgment (# 24) is
GRANTED IN PART, insofar as Mackenzie is entitled to summary judgment on Mr.
Muragara’s claims of hostile environment harassment and disparate treatment, and DENIED IN
PART, insofar as Mr. Muragara’s retaliation claim will proceed to trial. The parties shall begin
preparation of a joint proposed Pretrial Order as directed by the Trial Preparation Order (# 20)
and shall jointly contact chambers to schedule a Pretrial Conference within 14 days.
Dated this 28th day of January, 2014.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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