Clark v. Yellow Transportation

Filing 62

MEMORANDUM AND ORDER granting 49 Motion for Summary Judgment. Signed by Magistrate Judge James P. O'Hara on 8/25/2009. (kg)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF KANSAS M A R K A. CLARK, P l a in tif f , v. Y E L L O W TRANSPORTATION, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )

C a s e No. 07-2072-JPO

M E M O R A N D U M AND ORDER I. Introduction T h e plaintiff, Mark A. Clark, brings this race discrimination and retaliation case a g a in s t the defendant, Yellow Transportation, Inc., under Title VII of the Civil Rights Act o f 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. This case is now before the c o u rt1 on defendant's motion for summary judgment (doc. 49). The instant motion has been f u lly briefed (see docs. 50, 56, & 61). II. Facts2 D e f en d a n t is a motor carrier engaged in the business of transporting freight. Plaintiff, an African-American male, was hired by defendant on or about August 14, 2001 as an over1

On September 28, 2007, by consent of both parties, this case was reassigned for d is p o s itio n from Hon. John W. Lungstrum, U.S. District Judge, to the undersigned U.S. M a g is tra te Judge, James P. O'Hara (see doc. 22). 2 The court, of course, construes the facts in the light most favorable to plaintiff as the n o n m o v in g party pursuant to Fed. R. Civ. P. 56. Immaterial facts and those not properly s u p p o rte d by the record are omitted. When necessary, additional facts are included in the an alysis section of this memorandum and order.
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th e -ro a d driver based out of Kansas City, Missouri. He remains employed by defendant. F rom April 1, 2003 through March 31, 2008, the terms and conditions of plaintiff's e m p lo ym e n t were governed by the National Master Freight Agreement and its Central R e g io n Local Cartage and Over-The-Road Supplemental Agreement (collectively, the " C B A " ), various memorandums of agreement by and between defendant and the In te rn a tio n a l Brotherhood of Teamsters and its Local No. 41 (the "Union"), and the Sleeper W o rk Rules and Dispatch Procedures (the "Local Rules"). A t the time in question in this case, plaintiff was a sleeper team driver, meaning he w o rk e d with a partner driving long distances for several days at a time. Sleeper teams a lte rn a te driving responsibilities and sleep/rest time. Under the Local Rules, sleeper teams e a rn time off based on the amount of consecutive miles driven, briefly summarized below: 3 0 0 0 miles = 24 hours off 4 0 0 0 miles = 48 hours off 5 0 0 0 miles = 72 hours off W h e n a sleeper team returns from a run, the drivers are required to complete a "drop s l i p , " which indicates the date and time they are available for reassignment on the "call b lo c k ." If a sleeper team has earned time off, the drivers are permitted to designate a call b l o c k consistent with the amount of time off the drivers have earned. Drivers may not use e a rn e d time off on an individual basis, but rather must take it at the same time as their p a rtn e rs. If a driver wants to use vacation or sick days, he or she is required to fill out a s e p a r a te request form. If a driver has not earned time off or requested vacation or sick days,

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h e or she is required to designate the earliest date and time he or she is available to drive s u b j e c t to U.S. Department of Transportation hours of service regulations. D e f en d a n t has many different runs, which vary in length. Drivers are paid based upon ru n distances, in terms of mileage and hours. The type of run (i.e., sleeper runs, single-man la y-d o w n runs, single-man turn runs) and mileage dictate compensation. Dispatchers make d e c i sio n s regarding work assignments to drivers. In 2004, plaintiff filed a charge of discrimination with the Equal Employment O p p o rtu n ity Commission ("EEOC") and subsequently received a notice of right to sue on th a t charge in 2005. Plaintiff did not file a lawsuit based on the charge of discrimination w ith in 90 days of receiving his notice of right to sue. O n October 25, 2005, Robert Cantu, an assistant linehaul manager for defendant, is s u e d a written warning to plaintiff for "drop[ping] from the board for approximately 80 h o u rs." This warning indicated that "recurrence of this or similar type acts [would] result in f u rth e r disciplinary action up to and including discharge." On November 17, 2005,

M r. Cantu issued a second written warning to plaintiff for dropping "from the board for e ig h ty-f iv e (85) hours after running only 3360 miles." This warning also indicated that " re c u rre n c e of this or similar type acts [would] result in further disciplinary action up to and in c lu d in g discharge." As a result of these letters, plaintiff did not receive a suspension, re d u c tio n in pay, or demotion. Plaintiff admits these warnings were not inappropriately is s u e d ; however, many employees deposed indicated they had seen several other employees

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g e t away with violating the same work rule more egregiously with no repercussions. Jam es Young, plaintiff's partner, testified that he saw a team of Caucasian drivers w h o drove one run and took off extra time as if they had driven 5000 to 6000 miles and were n o t disciplined. Mr. Young did not remember specifics but stated this happened more than o n c e . Plaintiff testified that in February 2006 a Caucasian driver and his non-AfricanA m e ric a n partner3 dropped five days after running less than 3000 miles. Plaintiff testified th e drivers told him the additional time was not authorized by management. O f the fourteen employees who are authorized to "issue discipline" at defendant's B o o th facility, where plaintiff is based, twelve are Caucasian, one is African-American, and o n e , Mr. Cantu, is Hispanic. Four percent of the drivers at the Booth facility are AfricanA m e r ic a n . A lth o u g h both of Mr. Cantu's above-described written warnings indicate plaintiff c o u ld be discharged if he did not change his behavior, defendant would be unable to te r m in a t e him in accordance with Article 46 of the CBA without just cause and unless at least o n e effective warning notice has been issued. Warning notices issued under Article 46 only re m a in in effect for nine months. They do, however, remain in an employee's personnel file. B o th letters expired, pursuant to Article 46 of the CBA, by August 11, 2006 but, presumably, re m a in in plaintiff's employee personnel file.

At his deposition, plaintiff was asked whether the partner was African-American but w a s not asked to identify his race.
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R o b e rt G. Morris, another over the road driver who has worked for defendant since 1 9 9 1 , testified that he has seen actions taken by defendant, such as termination, relating back to older charges of discipline, including for the accumulation of letters beyond the nine m o n th s . Linda Giles, plaintiff's union steward, testified that although a warning letter for d ro p p in g off the board too long is minor, getting three such letters may result in a suspension. A lv in Schrepel, plaintiff's supervisor, testified that three minor violations in nine months c o u ld result in termination. D u r in g the same general time frame that plaintiff received his two warning letters, f r o m August 9, 2005 to November 11, 2005, defendant disciplined at least eighteen drivers, f o u r t e e n of which were Caucasian, for violation of the identical work rule prohibiting d ro p p in g off the board for more hours than the drivers earned, as summarized in the f o llo w in g chart. NA M E D a rryl Hawkins DA TE 8 /9 /2 0 0 5 RACE A f ric a n A m e ric a n A f ric a n A m e ric a n C a u c as ia n C a u c as ia n A f ric a n A m e ric a n A f ric a n A m e ric a n C a u c as ia n COM M ENTS D is c ip lin e was rescinded after driver p re se n te d sufficient information in d ic a tin g that it was not warranted. D is c ip lin e was rescinded after driver p re se n te d sufficient information in d ic a tin g that it was not warranted.

J e f fe ry Holland

8 /9 /2 0 0 5

G e o rg e Casey C lyd e Courtney M a rk Clark J a m e s Young E d w a rd Orscheln

1 0 /2 5 /2 0 0 5 1 0 /2 5 /2 0 0 5 1 0 /2 5 /2 0 0 5 1 0 /2 5 /2 0 0 5 1 1 /4 /2 0 0 5

D is c ip lin e was rescinded after driver p re se n te d sufficient information in d ic a tin g that it was not warranted.

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G e o rg e Wolf 1 1 /4 /2 0 0 5 L o re n Casteel 1 1 /4 /2 0 0 5 C la re n c e 1 1 /4 /2 0 0 5 P e n n in g to n M a rk Degruson 1 1 /4 /2 0 0 5 M ic h a el Hamblin 1 1 /4 /2 0 0 5 M ic h a el A. Jackson 1 1 /4 /2 0 0 5 K e v in Epperson 1 1 /4 /2 0 0 5 R o n a ld Robertson 1 1 /4 /2 0 0 5 G a ry Simoneau 1 1 /4 /2 0 0 5 V e rn o n Rust 1 1 /4 /2 0 0 5 T h o m a s Stephens 1 1 /4 /2 0 0 5 S e c o n d Warnings M a rk Clark 1 1 /1 7 /2 0 0 5 J a m e s Young 1 1 /1 7 /2 0 0 5

C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n C a u c as ia n

O n May 30, 2006, plaintiff filed a charge of discrimination with the EEOC. In his M a y 30, 2006 charge, plaintiff alleged that defendant discriminated and retaliated against h im because of his race from November 15, 2005 to November 22, 2005. In this charge, p la in tif f specifically alleged the following: I. II. III. I was hired by Respondent on or about 8/14/01. I was disciplined. I believe this was discrimination against me because of m y race, black, and retaliation against me for opposing ac ts made unlawful by Title VII.

T h e discipline referred to in this charge involved the two warning letters plaintiff received i n October and November 2005 for dropping off the driver call board for too long. On N o v e m b e r 21, 2006, the EEOC issued plaintiff a notice of right to sue on his May 30, 2006 c h a rg e . Pursuant to this notice, plaintiff initiated this lawsuit on February 18, 2007 by filing a complaint that alleged unequal treatment and retaliation based upon his race in violation
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o f Title VII. O n November 26, 2007, plaintiff filed another charge of discrimination against d e f en d a n t with the EEOC and the Kansas Human Rights Commission. In his November 26, 2 0 0 7 charge, plaintiff alleged defendant discriminated and retaliated against him because of h is race from April 4, 2007 to September 10, 2007. In this charge, plaintiff specifically a lle g e d the following: I. II. I was hired by Respondent on or about 8/14/01 and I cu rren tly hold a position as an Over the Road Driver. I was affected by the termination of my co-driver for h a v in g an accident. A white employee had a similar a c cid e n t and was not disciplined. I was subjected to a racially offensive picture hanging n e a r the time clock. I believe this is discrimination against me because of my ra c e , black, and retaliation against me for opposing acts m ad e unlawful by Title VII.

III. IV .

T h e first accident referred to in this charge occurred in July 2006 in Santa Fe, New Mexico, w h ile plaintiff's partner, Mr. Young, was driving. The specific adverse actions that plaintiff claim s are connected to his co-driver's accident are: (1) plaintiff was paid a "single driver" ra te , as opposed to a "sleeper team" rate, because he had to drive back to Kansas City by h im s e lf when his partner was taken out of service because of the accident; (2) he believes he s h o u ld have been compensated for ten hours of rest he had to take during the trip pursuant to federal regulations; and (3) he believes he should not have been dispatched from Santa Fe, N e w Mexico to Albuquerque, New Mexico immediately after the accident because he did n o t believe he could legally drive at the time. None of these alleged actions occurred during
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th e relevant time period between April 4, 2007 and September 10, 2007. As a result of this a c cid e n t, Mr. Young was immediately relieved of duty and flown home. He was

s u b se q u e n tly terminated but regained employment with defendant after nine days. M r. Young continues to work for defendant. Although not specifically indicated in his November 26, 2007 charge, plaintiff alleges d ef en d an t discriminated and retaliated against him by failing to assign him longer, more f in a n c ia lly rewarding trip runs, presumably as a result of his partner's brief termination. H o w e v e r, Mr. Schrepel, plaintiff's supervisor, was unaware of any specific request by p lain tiff for longer runs or that requests by plaintiff for longer runs were being constantly d e n ied . He was also unaware that plaintiff complained to management about a double s ta n d a rd involving the assignment of runs. Mr. Morris, when asked if he was aware of any A frican -A m erican drivers complaining about not being given longer runs, replied that every d riv e r has that complaint. After Mr. Young and plaintiff's accident, a Caucasian team had an accident in April 2 0 0 7 under similar conditions (i.e., high winds, rain, no highway shoulder) near the same lo c a tio n . The Caucasian team, instead of being ordered to return to Kansas City, was sent to Albuquerque, New Mexico and given a set of empty trailers to take to San Bernardino, C a lif o rn ia . The Caucasian team was never relieved of duty, suspended, given a letter of in v e s tig a tio n , disciplined, or terminated as a result of this accident. On February 11, 2008, the EEOC issued plaintiff a notice of right to sue on his

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N o v e m b e r 26, 2007 charge. On February 22, 2008, plaintiff filed a motion to amend his F e b ru a ry 18, 2007 complaint to add additional claims of discrimination and retaliation c o n ta in e d in his November 26, 2007 charge (doc. 35). On April 21, 2008, the court, granting th e motion in part and denying it in part, ordered that plaintiff was precluded from adding a n y claims of discrimination or retaliation unless the actions occurred between April 4, 2007 a n d September 10, 2007--the dates recorded in his November 26, 2007 charge (see doc. 37). T h e court ordered these claims could relate to his co-driver's July 2006 accident and te rm in a tio n , but the actions themselves had to occur between April 4, 2007 and September 1 0 , 2007 to be considered timely. The court denied plaintiff's motion to amend his complaint to add a racial harassment claim based on a racially offensive picture hanging near the time c lo c k , a claim based on racial comments made in the workplace, a claim of harassment by p la in tif f 's supervisor, and a hostile work environment claim. P u rsu a n t to the court's April 21, 2008 order, and as admitted by plaintiff, plaintiff's o n ly remaining claims are: (1) he was discriminated and/or retaliated against by the issuance o f the two 2005 warning letters; and (2) he was discriminated and/or retaliated against as a r e s u lt of his co-driver's accident and termination, but only to the extent the d is c rim in a to ry/re ta lia to ry acts occurred between April 4, 2007 and September 10, 2007. III. Summary Judgment Standard S u m m a ry judgment is appropriate if the moving party demonstrates there is "no

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g e n u in e issue as to any material fact," and it is "entitled to a judgment as a matter of law." 4 In applying this standard, the court views the evidence and all reasonable inferences th e re f ro m in the light most favorable to the nonmoving party.5 A fact is "material" if, under th e applicable substantive law, it is "essential to the proper disposition of the claim." 6 An is s u e of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier o f fact could resolve the issue either way." 7 T h e moving party bears the initial burden of demonstrating an absence of a genuine is s u e of material fact and entitlement to judgment as a matter of law.8 In attempting to meet th a t standard, a movant that does not bear the ultimate burden of persuasion at trial need not n e g a te the other party's claim; rather, the movant need simply point out to the court a lack o f evidence for the other party on an essential element of that party's claim.9 O n c e the movant has met his initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." 1 0 The nonmoving p a rty may not simply rest upon his pleadings.1 1 Rather, the nonmoving party must "set forth

Fed. R. Civ. P. 56(c). Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing M a ts u s h ita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 6 Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 7 Id. (citing Anderson, 477 U.S. at 248). 8 Id. at 670­71. 9 Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). 10 Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n.1 (concerning shifting b u rde n s on summary judgment). 11 Anderson, 477 U.S. at 256.
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s p e c if ic facts that would be admissible in evidence in the event of trial from which a rational trie r of fact could find for the nonmovant." 1 2 "To accomplish this, the facts must be id e n tif ie d by reference to affidavits, deposition transcripts, or specific exhibits incorporated th e re in ." 1 3 F in a lly, the court notes that summary judgment is not a "disfavored procedural s h o r tc u t ," rather, it is an important procedure "designed `to secure the just, speedy and inex p en sive determination of every action.'" 1 4 IV . Analysis A. P la in t if f ' s Exhaustion of Administrative Remedies It is well established that "Title VII requires a plaintiff to exhaust his or her a d m in is tra tiv e remedies before filing suit." 1 5 In a deferral state, such as Kansas, a plaintiff m u s t file his claim with the EEOC within 300 days of the alleged unlawful act.1 6 A plaintiff w h o fails to timely raise a discrimination claim before the EEOC is precluded from raising th a t same claim in court.1 7 The exhaustion of administrative remedies serves "to put an

Adler, 144 F.3d at 671. Id. 14 Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). 15 Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005); see also J o n e s v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996); Ingels v. Thiokol Corp., 42 F.3d 616, 6 2 4 ­ 2 5 (10th Cir. 1994). 16 42 U.S.C. § 2000e-5(e); Hernandez v. Data Sys. Int'l, Inc., 266 F. Supp. 2d 1285, 1 2 9 5 (D. Kan. 2003) (citing Peterson v. City of Wichita, Kan., 88 F.2d 1307, 1308 (10th Cir. 1 9 8 9 )). 17 Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993).
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e m p lo ye r on notice of a violation prior to the commencement of judicial proceedings. This in turn serves to facilitate internal resolution of the issue rather than promoting costly and tim e -c o n s u m in g litigation." 1 8 " A f ter a plaintiff has complied with this administrative requirement, he may file s u it." 1 9 Unlike many other circuits, the Tenth Circuit has "held that a plaintiff's exhaustion o f his or her administrative remedies is a jurisdictional prerequisite to suit under Title V II-- n o t merely a condition precedent to suit." 2 0 The Supreme Court recently abrogated the co n tin u ing violation doctrine "as previously applied to claims of discriminatory or retaliatory a c tio n s by employers, and replace[d] it with the teaching that each discrete incident of such tre a tm e n t constitutes its own unlawful employment practice for which administrative re m e d ie s must be exhausted." 2 1 T h e suit may include allegations of discrimination reasonably re la te d to the allegations listed in the administrative charge, in c lu d in g new acts occurring during the pendency of the a d m i n is tra tiv e charge. But courts will disregard allegations not re a so n a b ly related to the listed allegations; to allow co n sid e ratio n would circumvent the administrative agency's in v e stig ato ry and conciliatory role as well as deprive the charged p a r ty [of] notice of the charge. [B]ecause failure to exhaust a d m i n is tra tiv e remedies is a bar to subject matter jurisdiction,

Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (citing Brown v. Gen. S e rv s. Admin., 425 U.S. 820, 832­35 (1976)). 19 Alston v. U-Haul Co. of Kan., Inc., No. 06-2403, 2007 WL 1412672, at *1 (D. Kan. M ay 10, 2007). 20 Shikles, 426 F.3d at 1317 (citing Jones, 91 F.3d at 1399 n.1). 21 Martinez, 347 F.3d at 1210 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 1 0 1 , 110­13 (2002)).
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th e burden is on the plaintiff as the party seeking federal ju risd ictio n to show by competent evidence that []he did e x h a u st.2 2 In his May 30, 2006 charge, plaintiff alleged defendant discriminated and retaliated a g a i n s t him because of his race from November 15, 2005 to November 22, 2005. While p lain tiff argues that both of his warning letters constituted the discipline referred to in his ch arg e, the dates listed in the charge do not encompass the October 25, 2005 warning letter. T h e court, giving plaintiff some leeway, finds the October 25, 2005 warning letter is re a so n a b ly related to the November 17, 2005 second warning letter because it was, in e ss e n c e, his second warning as a result of his allegedly unchanged behavior after the October w a rn in g issued only about three weeks earlier. The court therefore has jurisdiction over m a tte r s concerning both warning letters. In its April 21, 2008 order, the court ruled that plaintiff was precluded from asserting a n y claims related to discriminatory or retaliatory actions allegedly taken by defendant a g a i n st plaintiff related to the July 2006 accident prior to April 4, 2007--the date which p la in tif f alleged the acts of discrimination began in his November 26, 2007 charge. H o w e v e r, the court also ruled that plaintiff was not precluded from asserting claims related to discriminatory or retaliatory actions allegedly taken by defendant against plaintiff even if th e acts were related to the July 2006 accident, provided the acts themselves occurred

22

Alston, 2007 WL 1412672, at *1 (internal quotations and citations omitted). -1 3 -

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b e tw e e n April 4, 2007 and September 10, 2007.23 In an attempt to argue the court has jurisdiction over the repercussions he suffered im m e d ia te l y after his July 2006 accident, plaintiff argues he was unaware the accident r e p e rc u s s io n s were discriminatory until after the Caucasian team's accident and the d is c rim in a to ry acts therefore actually occurred in April 2007. Defendant argues the accident re p e rc u ss io n s occurred in July 2006 and are therefore not covered by plaintiff's November 2 6 , 2007 EEOC charge. T h e court rejects plaintiff's argument that the accident repercussions did not occur u n d e r the statute until April 2007. Under Title VII, "[a] charge . . . shall be filed within [300] d a ys after the alleged unlawful employment practice occurred." 2 4 The Supreme Court has c l e a r l y stated that "[a] discrete retaliatory or discriminatory act `occurred' on the day it `h a p p e n ed .' A party, therefore must file a charge within . . . 300 days of the date of the act o r lose the ability to recover for it." 2 5 The repercussions plaintiff suffered directly after the J u ly 2006 accident happened in July 2006, and therefore plaintiff's 300-day window in which to file a charge began in July 2006. A lth o u g h not explicitly argued by plaintiff, the court will address whether a so-called " d is c o v e ry rule" applies to alleged violations of Title VII. That is, as earlier indicated, p la in tif f argues he did not discover the actions were discriminatory until April 2007, when

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See doc. 37, at 6. 42 U.S.C. § 2000e-5(e)(1) (emphasis added). Morgan, 536 U.S. at 110. -1 4 -

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t h e Caucasian drivers had a similar accident. The court will therefore analyze whether p lain tiff 's discrimination action first accrued in April 2007 when he learned the actions were p o s s ib l e Title VII violations. In Hulsey v. Kmart, Inc., the Tenth Circuit held that a cause of action under the Age D is c rim in a tio n in Employment Act ("ADEA") accrues "on the date an employee is notified o f an adverse employment decision," such as when an employer announces a particular event o r decision.2 6 The employees in Hulsey argued they did not suspect their demotions and tra n sf e rs were motivated by discrimination until viewing a television program two years later a n d their causes of action accrued when they viewed the program. 2 7 The court rejected the e m p lo ye e s' argument and held their causes of action accrued on the dates their employer n o tif ie d them of their new assignments.2 8 I n Bennett v. Coors Brewing Co., the former employees argued that their d i sc r im in a t io n claims under the ADEA did not arise until the date the employer hired its first re p la c em e n t employee.2 9 The Tenth Circuit held that "[w]hile the hiring of new, younger e m p lo ye e s might be evidence of [the employer's] alleged discriminatory intent at the time [ th e plaintiffs] left [the employer], it is the alleged discriminatory `discharge' that [the p la in tif f s ] seek to redress." 3 0 The Tenth Circuit therefore held that the latest date the

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43 F.3d 555, 557 (10th Cir. 1994). Id. Id. 189 F.3d 1221, 1234 (10th Cir. 1999). Id. at 1235. -1 5 -

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p la in tif f s' constructive discharge claims could be considered to have arisen was when p la in tif f s' official employment ended.3 1 N o tice or knowledge of an employer's discriminatory motivation is not a prerequisite f o r a cause of action to accrue.3 2 Rather, it is knowledge of the adverse employment decision its e lf that triggers the running of the 300-day period. 3 3 A claimant need not know all the e v id e n c e upon which he will rely at trial in order to file a charge with the EEOC. One p u rp o s e of a charge is to uncover facts, and it is sufficient that a plaintiff is on notice at the tim e of the alleged adverse action to inquire whether there was a discriminatory motive for th e action.3 4 A lth o u g h defendant's treatment of the Caucasian drivers after their April 2007 a c c i d e n t might be evidence of its alleged discriminatory motive at the time of plaintiff's a c cid e n t, it is the repercussions plaintiff suffered directly after his July 2006 accident that he s e e k s to redress. Plaintiff learned of the repercussions in July 2006 when they occurred. T h e re f o re , July 2006 is the date when plaintiff's claim related to the repercussion he suffered in July 2006 began to accrue. P lain tiff has not expressly argued that the equitable tolling doctrine applies to this c a se . The court will nevertheless address the issue. It is well settled that the "time period

Id. at 1226, 1235. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1187 (10th Cir. 2003) (quoting H u ls e y , 43 F.3d at 558-59). 33 Id. (quoting Hulsey, 43 F.3d at 558-59). 34 Id. at 1188.
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f o r filing a charge is subject to equitable doctrines such as tolling or estoppel." 3 5 Equitable to llin g and equitable estoppel provide "for tolling of the statute of limitations when a p lain tiff 's unawareness of his ability to bring a claim--either unawareness of the facts n e c e ss a ry to support a discrimination charge or unawareness of his legal rights--is due to d e f e n d a n t's misconduct." 3 6 However, these doctrines are applied sparingly.3 7 T h e time limits set forth in Title VII "will be tolled only if there has been `active d e c ep tio n ' of the claimant regarding procedural prerequisites." 3 8 An employer giving a nond iscrim inato ry reason for an adverse action does not constitute active deception.3 9 Further, " [ e ]q u itab le tolling is not warranted where an employee is aware of all of the facts constitu tin g discriminatory treatment but lacks direct knowledge of the employer's subjective d is c rim in a to ry purpose." 4 0 H e re , plaintiff has not alleged defendant actively deceived him regarding the actions take n directly after his July 2006 accident or the procedural prerequisites for him to assert

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Bennett, 189 F.3d at 1235. 37 Morgan, 536 U.S. at 109. 38 Mascheroni v. Bd. of Regents of the Univ. of Cal., 28 F.3d 1554, 1562 (10th Cir. 1 9 9 4 ) (quoting Sheerer v. Rose State College, 950 F.2d 661, 665 (10th Cir. 1991), cert. d e n ie d , 505 U.S. 1205 (1992)); see also Kaster v. Safeco Ins. Co. of Am., 212 F. Supp. 2d 1 2 6 4 , 1271 (D. Kan. 2002) (declining to toll the limitations period where there was no e v id e n c e the employer intended to delay the employee's filing of an EEOC charge or o th e rw is e engaged in conduct it should have unmistakably understood would cause the em p loyee to delay filing a charge). 39 Davis v. Wesley Ret. Cmtys, Inc., 913 F. Supp. 1437, 1443 (D. Kan. 1995). 40 Bennett, 189 F.3d at 1235 (internal quotation omitted).
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a claim. Further, plaintiff has not presented evidence of such deception by defendant. T h e re f o re , because there is no evidence of "active deception" on the part of defendant, the e q u ita b le tolling doctrine does not apply in this case. P lain tiff failed to file an administrative charge regarding the July 2006 accident within 3 0 0 days of the accident (the charge was not filed until approximately 500 days later). P la in tif f has failed to exhaust his administrative remedies regarding any repercussions he s u f f ere d directly after the July 2006 accident. Therefore, the court grants defendant's motion f o r summary judgment regarding the alleged adverse employment actions that occurred d ire c tly after the July 2006 accident, including plaintiff being paid the single driver rate in s te a d of the sleeper driver rate, being asked to take unpaid rest for ten hours, and being d is p a tc h e d to Albuquerque, New Mexico. P lain tiff also has failed to provide evidence of discrete discriminatory or retaliatory a c ts against him that occurred during the relevant time period. He suffered from no adverse e m p lo ym en t action during the relevant time period--all the adverse actions he claims o c c u rre d directly after the July 2006 accident. He suffered no direct harm as a result of the C au ca sian drivers' accident in April 2007. Plaintiff's claim that, as a result of his co-driver's a c c id e n t, he was no longer assigned "longer and more financially rewarding trip runs" is re a so n a b ly related to plaintiff's claim in the November 26, 2007 charge that he was affected b y the termination of his co-driver for having an accident. Plaintiff only has exhausted his a d m in is tra tiv e remedies for the time period from April 4, 2007 to September 10, 2007, and

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th e court only has subject matter jurisdiction regarding acts of discrimination and retaliation th a t allegedly occurred during that time period. P la in tif f , however, has failed to provide facts regarding any discrete instances of being d e n ied longer runs during the time period of April 4, 2007 to September 10, 2007. His s u p e r v is o r has no recollection of plaintiff complaining about not being assigned longer runs. B e c au s e plaintiff has failed to provide specific facts to support his allegations, he has not met h is burden of proof to survive summary judgment. As a result, the court grants defendant's m o tio n for summary judgment regarding plaintiff's claim he was not assigned "longer and m o re financially rewarding trip runs" from April 4, 2007 to September 10, 2007. P lain tiff 's other allegations are so vague that it is impossible to determine if they are re a so n a b ly related to the allegations he made in his EEOC charges. For example, some of h is allegations include: (1 ) (2 ) A d v e rs e employment actions were committed by defendant against plaintiff; P la in tif f was discriminated against because he was not paid for work directed b y defendant that he perform; (3 ) P la in tif f was discriminated against because he was disciplined for actions he to o k that were directed by defendant; (4) (5 ) U n f a i r pay on contract issues and promotion practices; U n e q u a l terms and conditions of employment.

T h e record is such that the court cannot determine the specific details of these vague

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a lle g a tio n s to adequately determine which allegations would fall under its jurisdiction. P la in tif f also claims he was discriminated and/or retaliated against with regard to a May 11, 2 0 0 7 warning letter pertaining to an April 11, 2007 incident and that he was not paid for m i le s he drove on April 11, 2007. Plaintiff's claim, which is also vague, does not appear re a so n a b ly related to his November 26, 2007 charge that alleged he was affected by the te rm in a te d of his partner. The court therefore finds that even if it had been properly pleaded, the court does not have jurisdiction over the May 11, 2007 warning letter. F u r th e r, plaintiff did not even attempt to establish prima facie cases of discrimination o r retaliation as to any alleged adverse employment action besides the two 2005 warning le tte rs and the accident repercussions directly after his partner's April 2006 accident, over w h ic h the court does not have jurisdiction. As a result, the court finds it only has jurisdiction o v e r matters that are reasonably related to the two warning letters issued in 2005. B. P la in tif f 's Discrimination Claims P lain tiff claims defendant discriminated and retaliated against him on the basis of his ra c e in violation of Title VII. As plaintiff has not provided direct evidence of discrimination o r retaliation, plaintiff's claim must be analyzed under the McDonnell Douglas 4 1 burdens h if tin g approach.4 2 Under this approach,

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Tenth Circuit applies the McDonnell Douglas burden-shifting analysis to Title V II retaliation claims. Miller v. Auto. Club of N.M. Inc., 420 F.3d 1098, 1119 (10th Cir. 2 0 0 5 ).
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th e plaintiff must first establish a prima facie case of d is c rim in a tio n . The burden of production then shifts to the em p lo yer to articulate some legitimate, nondiscriminatory re a so n for the adverse employment action. Once this is done, th e presumption of discrimination established by the prima facie s h o w i n g "simply drops out of the picture." The plaintiff then c a rrie s the full burden of persuasion to show that the defendant d i sc r im in a t e d on [an] illegal basis . . . . The plaintiff may do so b y showing that the proffered reason is pretextual.4 3 1. P r im a Facie Case of Discrimination

Plaintiff may establish a prima facie case of racial discrimination by presenting e v id e n c e establishing a genuine issue of fact "(1) that he is a member of a racial minority, (2 ) that he suffered an adverse employment action, and (3) that similarly situated employees w e re treated differently." 4 4 Here, it is undisputed that plaintiff is an African-American and is therefore a member of a racial minority. Defendant argues plaintiff cannot establish triable is s u e s as to the second and third elements of his prima facie case. The court finds plaintiff h a s not established a prima facie case for the following reasons. a. A d v e rs e Employment Action

D e f en d a n t asserts plaintiff did not suffer adverse employment action as a result of the tw o 2005 warning letters because plaintiff suffered no demotion, reduction in pay, or te rm in a tio n of employment. Additionally, defendant claims the letters cannot be considered

43

Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124­25 (10th Cir. 2005) (citations

o m i tt e d ) . Trujillo v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998) (c itin g McDonnell Douglas Corp., 411 U.S. at 802).
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a d v e rs e employment actions because the letters expired nine months after their issuance. W h ile Article 46 of the CBA reflects that defendant may not terminate or suspend an e m p lo ye e without an effective written notice on file, the written warning letters are placed an d kept in the employee's personnel file. Additionally, the more warning letters that are p la c ed in the personnel folder, the more likely the employee is to be subject to harsher d is c ip lin e , including termination. T h e Tenth Circuit "liberally defines the phrase `adverse employment action' but has n o t established a litmus test regarding what constitutes such an action." 4 5 Obviously, d e c i sio n s that materially alter the employment status of an employee constitute an adverse e m p lo ym e n t action.4 6 However, "[l]ess obvious actions may also constitute an adverse action a n d are judged on a `case-by-case' basis to determine whether an identified employment a c tio n is truly adverse." 4 7 In reviewing a similar issue regarding adverse employment a c tio n s , the Tenth Circuit stated: A s to the written warnings, Roadway contends that they had no ad v erse effect on the terms and conditions of Roberts's e m p l o ym e n t because, after a nine month term of "validity," they c o u ld not be used to support disciplinary actions such as te rm in a tio n . But the record indicates that the more warnings an e m p l o ye e received, the more likely he or she was to be ter m in a ted for a further infraction. This alone is enough to c o n s titu te adverse action. See . . . Berry, 74 F.3d at 986 (holding th at employer actions that "can have an adverse impact on future

45 46 47

Powers v. Tweco Prods., Inc., 206 F. Supp. 2d 1097, 1115 (D. Kan. 2002). Id. Id. -2 2 -

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e m p l o ym e n t opportunities" are legitimately regarded as "adverse e m p l o ym e n t action[s]," and that in light of Title VII's remedial p u rp o s e s, adverse employment action should not be defined n a r r o w l y) . 4 8 In Medina v. Income Support Division, New Mexico, the Tenth Circuit stated that " [ d ] is c ip l in a r y proceedings, such as warning letters and reprimands, can constitute an adverse e m p l o ym e n t action." 4 9 The court noted that a warning letter "will only constitute an adverse e m p lo ym e n t action if it adversely affects the terms and conditions of the plaintiff's e m p lo ym e n t-- f o r example, if it affects the likelihood that the plaintiff will be terminated, u n d e rm in e s the plaintiff's current position, or affects the plaintiff's future employment o p p o r tu n i t i e s ." 5 0 The court held the warning letter at issue fell short of an adverse

e m p lo ym e n t action and noted the plaintiff had been offered other employment and resigned fro m the employer before the letter was issued, the letter was not placed in the plaintiff's p e rs o n n e l file, and that the plaintiff had not demonstrated that any subsequent employer c o u ld discover the letter in the future.5 1 D e f en d a n t relies on a case from the District of Kansas in which the court held several " w rite ups" did not constitute adverse employment actions.5 2 In that case, though, most of th e write ups were kept in the supervisor's and leadman's desks and were not placed in the

Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998). 413 F.3d 1131, 1137 (10th Cir. 2005). 50 Id. 51 Id. 52 Robleado v. Deffenbaugh Indus., Inc., 136 F. Supp. 2d 1179, 1189-90 (D. Kan. 2 0 0 1 ), aff'd, 33 F. App'x 480 (10th Cir. 2002).
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p l a in t if f ' s personnel file. The court held that those write ups did not constitute adverse e m p lo ym e n t actions. Three other write ups, however, were placed in the plaintiff's personnel f ile . The court noted that while the three write ups in plaintiff's personnel file may have c o n s titu t e d adverse employment actions, the court did not need to decide the issue because p la in tif f failed to establish causation for his prima facie case of retaliation as to those three w r ite ups.5 3 D ef en d an t also relies on a case from the District of Kansas, decided well before M e d in a and Roberts, for the proposition that warning letters that expire or are rescinded do n o t constitute adverse employment actions. The case, however, does not mention letters that e x p ire but rather letters that are removed from one's personnel file.5 4 H e re , it is undisputed that the two warning letters issued to plaintiff in 2005 are kept in his personnel file, even though they have expired pursuant to the CBA. Although no e v id e n c e has been presented regarding whether a potential future employer could discover th e letters, it is certainly plausible given that the letters remain in plaintiff's personnel file. A d d itio n a lly, plaintiff has presented some evidence, although fairly vague and non-specific, th a t defendant has based disciplinary action on warning letters even after the nine-month p e rio d . The letters do not contain an expiration date but do state that "[a]ny recurrence of th is or similar type acts will result in further disciplinary action up to and including

53 54

Id. at 1190 n.8. Fortner v. Kansas, 934 F. Supp. 1252, 1266-67 (D. Kan. 1996). -2 4 -

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d is c h a rg e ." Therefore, considering the evidence in the light most favorable to plaintiff, the co u rt finds the warning letters adversely affected the terms and conditions of plaintiff's e m p l o ym e n t and constitute adverse employment actions. b. D is p a ra te Treatment of Similarly Situated Employees

P la in tif f argues that proof that similarly situated individuals are treated in a p re f e re n tial manner is one way to meet the third element of his prima facie case but that it is not necessarily the only way. The court agrees. 5 5 Plaintiff, however, fails to offer any o th e r argument to meet the third element. Plaintiff's entire argument as to the third element s ta te s: "Being African-American he is up to 6.9 times more likely to receive such letters than s im ila rly situated non-minority drivers." 5 6 Indeed, plaintiff's argument appears to be that s im ila rly situated non-minority drivers were treated in a preferential manner by not being is s u e d letters at the same rate. S im ila rly situated employees deal with the same supervisor and are subject to the same stan d ard s regarding performance evaluation and discipline.5 7 "A court should also compare th e relevant employment circumstances, such as work history and company policies, a p p lic a b le to the plaintiff and the intended comparable employees in determining whether th e y are similarly situated." 5 8

55 56 57 58

See Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). Doc. 56, at 48. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). Id. -2 5 -

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P lain tiff 's 6.9 alleged rate of discipline was calculated based on eighteen drivers re c eiv in g warning letters for the same violation during the same general time period, fourteen o f whom are Caucasian and four of whom are African-American. Plaintiff also incorporates th e fact that four percent of defendant's drivers are African-American and then assumes that th e remaining ninety-six percent are non-minority. Plaintiff's alleged statistical rate of d isc ip lin e is discussed in more detail below in the context of whether he has shown pretext. P lain tiff 's statistics fail to show that any non-minority drivers dropped off the board f o r too long in the relevant time period but were not issued a warning letter. Plaintiff also f a ils to show that the other non-disciplined drivers were similarly situated, such as they have th e same supervisor or have similar work histories. In short, plaintiff's 6.9 alleged rate of d is c ip lin e does not show similarly situated non-minority drivers were treated in a preferential m a n n e r by not being issued warning letters for dropping off the board too long. P la in tif f also has presented evidence regarding Caucasian drivers that were not d is c ip lin e d for violating the same work rule by dropping off for a much longer period of time th a n did plaintiff.5 9 Plaintiff testified that in February 2006 a Caucasian driver and his non-

The court ignores plaintiff's statements of fact that other drivers have dropped off th e board as long or longer than plaintiff without being issued warning letters when those s t a te m e n t s of fact fail to identify the drivers' race. For example, Mr. Young testified that " [ h ]e ll, guys dropping longer than that." Doc. 56, ex. 3, at 15:20. Ms. Giles testified that o th e rs took off the same amount of time and rarely get letters. Doc. 56, ex. 1, at 45:5-13 & 7 6 :1 7 - 2 4 . Ms. Giles was asked whether the teams that were not written up for taking excess h o u rs were generally Caucasian drivers. Id. at 45:23-25. Neither party, however, has p ro v id e d the court the page of Ms. Giles's deposition with her answer. The court cannot d e te rm in e that the other drivers Mr. Young and Ms. Giles discussed were similarly situated
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A frican -A m erican partner dropped five days after running less than 3000 miles. The court re je c ts plaintiff's testimony that the drivers told him the additional time was not authorized b y management as inadmissible hearsay.6 0 Plaintiff also has presented the deposition of M r. Young that he saw a Caucasian team drive one run and then take off extra time as if they h a v e driven 5000 to 6000 miles and not be disciplined. Mr. Young testified he saw this h a p p e n more than once, but he failed to remember any specific details. E v e n construing the evidence in the light most favorable to plaintiff, the court finds th a t plaintiff has not presented sufficient evidence that similarly situated drivers were treated in a preferential manner. Neither plaintiff's nor Mr. Young's example sufficiently Plaintiff has not presented

e sta b lis h e s the Caucasian drivers were similarly situated.

e v id e n c e regarding the drivers' work histories or that they dealt with the same supervisor as p la in tif f . Further, Mr. Young's example lacks evidence of how long the drivers did run (i.e., it simply states that they made one run) or when the event occurred. Further, plaintiff has f a ile d to present credible evidence that the drivers were unauthorized to take the additional tim e off. The court finds plaintiff has failed to meet the third element of his prima facie case o f discrimination by showing that similarly situated drivers were treated differently or th ro u g h any other evidence.

to plaintiff or that they were non-minority drivers. 60 See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) (holding that F e d . R. Civ. P. 56 precludes the use of inadmissible hearsay testimony in depositions su b m itted in opposition to summary judgment).
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2.

P r im a Facie Case of Retaliation

T o survive summary judgment on his retaliation claim, plaintiff must present evidence establishing a genuine issue of fact that (1) he e n g a g ed in protected opposition to statutorily prohibited d is c rim in a tio n ; (2) he was subjected to an adverse employment a c tio n subsequent to or contemporaneous with his protected o p p o s itio n ; and (3) a causal connection exists between the em p lo yer's adverse employment action and the employee's p ro te c te d activity.6 1 D e f e n d a n t does not dispute that plaintiff participated in protected activity by filing EEOC c h a rg e s of discrimination. Defendant argues that plaintiff cannot establish triable issues as to the second and third elements of his prima facie retaliation case. The court finds plaintiff h a s not established a prima facie case for the following reasons. a. A d v e rse Employment Action Subsequent to or Contemporaneous with P r o te c te d Opposition

T h e court has already found that the warning letters constitute adverse employment a c tio n s . Plaintiff has shown the warning letters were issued after his first charge of d is c rim i n a t i o n was filed with the EEOC in 2004. The court therefore finds plaintiff was s u b je c te d to an adverse employment action subsequent to his protected opposition in 2004. b. C a u sa l Connection Between the Adverse Employment Action and the P ro tec ted Activity

In plaintiff's response to the instant motion, plaintiff merely states that a causal

Trujillo, 157 F.3d at 1215 (10th Cir. 1998) (citing Murray v. City of Sapulpa, 45 F .3 d 1417, 1420 (10th Cir. 1995)); see also Annett v. Univ. of Kan, 371 F.3d 1233, 1237 (10 th Cir. 2004).
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c o n n e ctio n exists, but he provides no further explanation or argument. Plaintiff simply states t h a t for his May 30, 2006 charge, "[a] causal connection exists between the plaintiff's p ro te c te d activity and the defendant disciplining African-Americans at a rate 6.9 times higher th a n Caucasians." 6 2 Plaintiff fails to present any evidence of a causal connection between h is protected activity and any adverse employment action against him. Regardless, the court w ill address whether a causal connection exists. T h e Tenth Circuit has held that "[t]he causal connection may be demonstrated by e v id e n c e of circumstances that justify an inference of retaliatory motive, such as protected c o n d u c t closely followed by adverse action." 6 3 However, "unless the [adverse action] is very c lo se ly connected in time to the protected activity, the plaintiff must rely on additional e v id e n c e beyond mere temporal proximity to establish causation." 6 4 In Meiners, the court h e ld that a "six-week period between protected activity and adverse action may be sufficient, s ta n d in g alone, to show causation, but a three-month period, standing alone, is insufficient." 6 5 W h i le plaintiff filed a charge with the EEOC in 2004, almost a year passed before p l a in t if f was issued the warning letter in October of 2005. This is insufficient to establish c a u sa tio n by temporal proximity. Additionally, although plaintiff filed his second charge on

Doc. 56, at 50. Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098, 1121 (10th Cir. 2005) (quoting B u r r u s v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)), abrogated in p a rt on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). 64 Id. (quoting Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004)). 65 Meiners, 359 F.3d at 1231.
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M a y 30, 2006 and his third charge on November 26, 2007, he suffered no adverse e m p lo ym e n t action that he administratively exhausted contemporaneous with or after either c h a rg e . As a result, he must provide additional evidence beyond mere temporal proximity to establish a causal connection. The only evidence that can be adduced from plaintiff's response is the statistical in f o rm a tio n regarding the issuance of warning letters. However, this is insufficient to prove a casual connection. Even if the statistical calculations were correct and reliable (which on th e record presented is an awfully big assumption), they are still entirely unrelated to proving a causal connection between plaintiff's protected action and the adverse employment actions. B e c au s e plaintiff has failed to provide any evidence of a causal connection, the court grants d e f e n d a n t's motion for summary judgment on plaintiff's retaliation claim. 3. P r e te x t

A lth o u g h plaintiff has not established a prima facie case of discrimination or re ta lia tio n , the court will nevertheless briefly address the remaining McDonnell Douglas a n a lys is . Defendant contends it issued plaintiff warning letters because he was dropping off th e board and taking time off that he had not earned. Because defendant has articulated a le g itim a te , nondiscriminatory reason for its actions, the burden would then shift to plaintiff to present evidence from which a reasonable jury might conclude that defendant's proffered re a s o n is pretextual or "unworthy of belief." 6 6

66

See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1193 (10th Cir. 2006). -3 0 -

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" P r e te x t can be shown by such weaknesses, implausibilities, inconsistencies, in c o h e re n c ie s, or contradictions in the employer's proffered legitimate reasons for its action th a t a reasonable factfinder could rationally find them unworthy of credence and hence infer th a t the employer did not act for the asserted non-discriminatory reasons." 6 7 "This burden is not onerous . . . it is also not empty or perfunctory." 6 8 Generally, a plaintiff makes a s h o w in g of pretext in one of three ways: (1) evidence that defendant's stated reason for the a d v e rs e employment action was false, i.e., unworthy of belief; (2) evidence that defendant a c te d contrary to a written company policy prescribing the action to be taken under the c irc u m s ta n c es ; or (3) evidence that defendant acted contrary to an unwritten policy or c o n tra ry to company practice when making the adverse employment decision affecting p la in tif f .6 9 More specifically, evidence of pretext may include "prior treatment of plaintiff; th e employer's policy and practice regarding minority employment (including statistical d a ta ); disturbing procedural irregularities (e.g., falsifying or manipulating . . . criteria); and th e use of subjective criteria." 7 0 "Mere conjecture that the employer's explanation is pretext is insufficient to defeat summary judgment." 7 1 Additionally, "`[i]f no facts relating to the p r e te x t u a lity of the defendant's action remain in dispute, summary judgment is

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). Id. at 1323­24. 69 See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). 70 Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1 3 2 1 , 1328 (10th Cir. 1999). 71 Myers v. Colgate-Palmolive Co., 102 F. Supp. 2d 1208, 1217 (D. Kan. 2000) (citing H ilti, Inc., 108 F.3d at 1323).
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a p p r o p r ia t e . '" 7 2 P la in tif f fails to even argue that defendant's reason for disciplining him and issuing th e warning letters was pretextual, let alone set forth any supporting evidence. The court, h o w e v e r, will address plaintiff's assertion that defendant disciplines African-Americans at a higher rate than Caucasians constitutes pretext in this case.7 3 Plaintiff has produced s ta tis tic a l evidence purportedly showing a correlation between race and discipline, i.e., that A f ric a n -A m e ric a n s were disciplined at a higher rate than Caucasians for dropping off the b o a rd . Plaintiff--using the table defendant provided depicting the drivers that were issued w a rn in g s letters around the time plaintiff was issued his warning letters--concludes that b e c a u s e four of the eighteen drivers disciplined were African-American, and because A f ric a n -A m e ric a n s constitute four percent of the drivers employed by defendant, AfricanA m e r ic a n drivers were disciplined at a rate 6.9 times higher than other drivers. T h e court notes that the table of warning letters, on which plaintiff's 6.9 rate of d is c ip lin e is based, is misleading because the time frame fails to encompass when plaintiff a n d Mr. Young were issued their second warning letters. Although defendant provides

Id. (quoting Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 798 (1 0 th Cir. 1993), overruled in part on other grounds, Buchanan v. Sherrill, 51 F.3d 227, 229 (10 th Cir. 1995)). 73 Defendant argues that plaintiff has failed to authenticate Exhibit 13 as required by D . Kan. Rule 56.1(d). Doc. 56, ex. 13. While the court agrees plaintiff should have attached th e original source of the information relied on in exhibit 13, plaintiff did provide citations to the original sources of information in paragraph 40.b. of his facts section. Doc. 56, at 25. T h e r e f o r e , the court will consider the calculations.
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in f o rm a tio n regarding who was disciplined two months before the first warning letter was is s u e d , it fails to provide who else besides plaintiff and Mr. Young was disciplined when the s e c o n d warning letter was issued, let alone two months after this second letter. The table also f a ils to provide information regarding the issuance of warning letters from November 11, 2 0 0 5 and November 17, 2005. " W h ile statistical evidence may create an inference of discrimination, the evidence m ay be so flawed as to render it insufficient to raise a jury question." 7 4 "A plaintiff's s ta tis tic a l evidence must focus on eliminating nondiscriminatory explanations for the d is p a ra te treatment by showing disparate treatment between comparable individuals." 7 5 " S ta tis tic a l evidence which fails to properly take into account nondiscriminatory explanations d o e s not permit an inference of pretext." 7 6 Additionally, "[s]tatistical evidence that does not a d ju s t for the various performance evaluations and departmental rankings of the employees in c lu d e d in the statistical pool" is insufficient to establish pretext.77 T h e probative value of statistical evidence varies greatly a c c o rd in g to the type of discrimination alleged. In a disparate im p a c t case, statistical evidence plays a central role because the p la in tif f is attempting to show a particular practice had a

Myers, 102 F. Supp. 2d at 1218 (citing Fallis v. Kerr-McGee Corp., 944 F.2d 743, 7 4 6 (10th Cir. 1991)). 75 Id. (citing Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 532 (10th Cir. 1 9 9 4 )). 76 Id. at 1219 (citing Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1 9 9 4 )) . 77 Sanders v. Sw. Bell Tel., 544 F.3d 1101, 1110 (10th Cir. 2008) (quoting Pippin, 440 F .3 d at 1197­98).
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d is p ro p o rtio n a te impact on a particular group, and not the e m p l o ye r's discriminatory intent. However, in an individual d is p a ra te treatment case, the focus is on how and why an e m p l o ye r treated a particular individual the way it did. As such, sta tistica l evidence of the employer's general hiring patterns is c o n sid e ra b ly less probative. Moreover, because overall e m p lo ym e n t statistics have little bearing on the specific in t e n tio n s of the employer in making particular hiring decisions, s u c h statistical evidence will rarely suffice to rebut an em p lo yer's legitimate, nondiscriminatory reasons for a particular a d v e rs e employment action.78 S ta tis tic a l evidence on its own will rarely suffice to show pretext.7 9 The court concludes that p l a in t if f is not entitled to an inference of pretext for the following reasons. P laintiff's presentation of his statistical calculations is misleading. First, as previously m e n tio n e d , the table defendant provides is itself misleading regarding the time frame re p re se n te d . Second, plaintiff's calculations simply assume that defendant's employees who d o not fit into the four percent African-American population are Caucasian, as opposed to a n o th e r racial minority. Additionally, plaintiff fails to include evidence that the same d ec isio n -m ak er was disciplining similarly situated employees.8 0 Most importantly, plaintiff's s ta tis tic a l calculations in no way eliminate nondiscriminatory explanations for the alleged d is p a ra te treatment. Because plaintiff's statistical evidence fails to properly take into account

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319 (10th Cir. 1999), o v e rr u le d on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). 79 Ortiz v. Norton, 254 F.3d 889, 897 (10th Cir. 2001). 80 See Myers, 102 F. Supp. 2d at 1219 (indicating that the plaintiff's statistics were f la w e d because they took into account persons terminated by decision-makers other than the o n e who made the decision to terminate plaintiff).
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n o n d isc rim in a to ry explanations, he would not be entitled to an inference of pretext even if h e had established prima facie cases of discrimination and retaliation. The court finds the s ta tis tic a l calculations so flawed that they do not raise a jury question. P lain tiff has failed to meet his burden to survive summary judgment. He failed to e x h a u st his administrative remedies regarding the July 2006 accident and his other vague c la im s . Plaintiff failed to meet his burden to establish prima facie cases of discrimination an d retaliation as to the warning letters and, in any event, failed to show that defendant's n o n d is c rim in a t o ry reasons for its decisions were pretextual. To show pretext, plaintiff must p ro v id e specific facts that prove defendant's reasons for the discipline were pretextual,8 1 w h ich plaintiff simply failed to do. Plaintiff has not presented sufficient evidence to create a genuine issue of material fact, and defendant is entitled to judgment as a matter of law. V . Order In consideration of the foregoing, IT IS HEREBY ORDERED: 1. 2. D e f e n d a n t's motion for summary judgment (doc. 49) is granted. T h is case is dismissed, with prejudice, with costs assessed against plaintiff.

D a te d this 25th day of August, 2009, at Kansas City, Kansas. s/James P. O'Hara James P. O'Hara U .S . Magistrate Judge

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Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000). -3 5 -

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