Carpenter v. AT&T et al
MEMORANDUM AND ORDER granting Defendants Southwestern Bell Telephone Company and Joseph Arri's 46 Motion for Summary Judgment. Plaintiff's claims for hostile work environment remain for trial. Signed by District Judge Carlos Murguia on 11/13/2013. Mailed to pro se plaintiff John E. Carpenter by regular mail. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN E. CARPENTER,
SOUTHWESTERN BELL TELEPHONE
COMPANY and JOSEPH ARRI,
Case No. 12-2483-CM
MEMORANDUM AND ORDER
Plaintiff John E. Carpenter brings this employment discrimination action claiming that his
former employer, Southwestern Bell Telephone Company (“Southwestern Bell”), and his former
supervisor, Joseph Arri, terminated his employment in violation of federal law. In particular, plaintiff
claims that defendants violated 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 by
discriminating against him and retaliating against him for complaining of discrimination.1 Plaintiff
proceeds pro se. The case is before the court on Defendants Southwestern Bell Telephone Company
Plaintiff’s response brief suggests that he also brings harassment/hostile work environment claims under § 1981 and Title
VII. Defendants contend that the pretrial order does not include harassment claims, and therefore they are not part of the
case. See Elephant Butte Irrigation Dist. v. U.S. Dep’t of Interior, 538 F.3d 1299, 1302 (10th Cir. 2008) (“[T]he pretrial
order is treated as superseding the pleadings and establishing the issues to be considered at trial.”). Defendants do not
move for summary judgment on these claims. Defendants are correct: the pretrial order does not list hostile work
environment claims in the section “Theories of Recovery.” But defendants ignore several other places in the pretrial order
that reference harassment and/or hostile work environment. (See, e.g., Doc. 42 at 1 (“This is an employment case involving
claims of race discrimination, harassment, and retaliation . . . .”); 6 (“Defendants subjected Plaintiff to a hostile working
environment (harassment) on account of his race and color . . . .”); 14 (listing an issue that one or more of the parties
believes needs to be resolved as “Was Plaintiff subjected to a hostile work environment?”).) The pretrial order is consistent
with plaintiff’s Complaint, which alleged that “Defendants’ acts were based on Plaintiff’s race, which were unwelcome to
him, and sufficiently severe or pervasive to alter the terms or conditions of his work environment.” (Doc. 1 at 4.) It is also
consistent with plaintiff’s administrative complaint. (See id. at 9 (“From February 2008, to November 21, 2008, I was
subjected to harassment, in that I was constantly being disrupted from doing my work by co-workers.”).) The court
believes that plaintiff adequately preserved the hostile work environment claims for trial. Because defendants do not ask
for summary judgment on these claims, they remain in the case.
and Joseph Arri’s Motion for Summary Judgment (Doc. 46). For the following reasons, the court
grants the motion.
I. FACTUAL BACKGROUND
The following facts are taken largely from defendants’ proposed uncontroverted facts. Plaintiff
attempted to controvert a number of the facts, but did so with unsupported, immaterial, and/or
irrelevant statements. Plaintiff also added a narrative consisting of his own factual statement,
supported primarily by his own declaration. The court does not identify every instance in which it
disregards plaintiff’s proffered facts, but none of them properly controvert the facts (relayed below)
that are material to this court’s decision.
A. Plaintiff’s Employment
Plaintiff, an African American, is a former employee of Southwestern Bell. He worked for the
company from the early 1980s to November 2008. Plaintiff, like all employees, was expected to
comply with Southwestern Bell’s Code of Business Conduct (“COBC”). The COBC requires that
employees treat co-workers with respect. They must act courteously and professionally. The company
does not permit threats, violence, or disruptive behavior.
In 2005, plaintiff became Manager of Outside Plant Planning and Engineering Design at
Southwestern Bell’s Mission, Kansas facility. Mr. Arri was plaintiff’s supervisor for about three years.
Arri reviewed plaintiff’s performance in 2005, 2006, and 2007, giving plaintiff satisfactory marks.
B. Plaintiff’s February 2008 Outburst and Verbal Warning
On February 29, 2008, one of plaintiff’s co-workers, Russ Claybaker, was whistling in the
workplace. Plaintiff became upset. He shouted at Mr. Claybaker to “stop that whistling.” Plaintiff
then left his work area and went home. When he left, he pushed the door too hard, damaging the
drywall behind the door. Following the incident, three co-workers expressed concern with plaintiff’s
behavior: Sheila Holmes, Kathy Wolfe, and Mildred Frazier.
On March 4, 2008, plaintiff and Mr. Arri discussed the incident. Plaintiff apologized. He said
that he “felt sorry about what happened that day” and he “didn’t want [his co-workers] to feel
threatened.” Mr. Arri recommended that plaintiff use noise cancellation headphones if necessary.
Plaintiff disagrees that headphones were a reasonable option, as he could not hear fire alarms when he
had them on.
C. Plaintiff’s August 2008 Outburst and Verbal Warning
On August 4, 2008, Mr. Claybaker was whistling again by plaintiff’s desk. In an angry, stern
voice, plaintiff said, “Stop whistling. Stop the damn whistling, please.” Plaintiff told Mr. Arri that he
was not going to take the noise anymore, and if it happened again, he was going to do something about
it. Mr. Arri responded that plaintiff’s expectation—i.e., that there should be no noise in the office that
did not support the work being done—was impractical. Plaintiff later assured Mr. Arri that he would
never respond physically to the noise. Plaintiff does not recall the August 4 conversation with Mr.
Arri, but he does recall telling Mr. Arri that he was aware that doing harm to a co-worker would cause
him to go to jail, and that “you are just not worth it.”
The next day, Mr. Arri distributed a memo requesting that the workgroup cooperate in
controlling office noise, including whistling. Mr. Arri also discussed noise complaints with Carol
Gardner, who supervised the other team on the floor. Ms. Gardner supervised Mr. Claybaker. She
also asked her team to minimize office noise.
D. Plaintiff’s September 2008 Outburst and Written Warning
On September 4, 2008, plaintiff heard more whistling. When he looked up, plaintiff saw two
co-workers duck down in a cubicle. Plaintiff loudly said, “So you think it’s funny. Well, I’m going to
show you how funny it is. I’m going to file my complaint right now against all of you.”
Plaintiff started to leave, but the co-worker who whistled said, “Grow up and act like a
manager.” Plaintiff walked to the elevator, saying he was “sick of” them. Before leaving, however,
plaintiff walked back to the group, and said, “Who do you think you are telling me to grow up?” One
of the co-workers told him, “John, go home. Just go home.”
Mr. Arri was out of the office, but five employees contacted him to report the incident: Wes
Thornton, Traycie Haney, Sheila Holmes, Dan Clevenger, and Kathy Wolfe. They indicated that they
filed a report with the Company Security department. Mr. Arri instructed plaintiff to work from home
pending an investigation.
During the company’s investigation, employees reported that plaintiff yelled the following
“You all are going to think this sh*t is funny when I file a formal complaint against you all”;
“[You’re] not going to f*cking tell me what to do”;
“Tell the boss I am leaving . . . I don’t have to put up with this sh*t”; and
“F*ck you all.”
Employees also expressed the following concerns:
Feeling “very upset and concerned about everyone’s safety”;
“Wondering if [plaintiff] would come back into the building”;
Feeling “like [plaintiff] was going to completely lose control;” and
Feeling like they “didn’t know what was going to set him off next,” they “were walking on egg
shells,” and they were “threatened.”
Plaintiff returned to work on September 10. Plaintiff met with Mr. Arri and admitted he lost
his temper on September 4. While plaintiff was gone, Mr. Arri had documented twenty-four noise
instances in the workplace, including whistling. Mr. Arri noted that Mr. Claybaker whistled both in
the office and outside while on a smoke break. In light of his observations, he explained to plaintiff
that he did not believe co-workers were targeting their noises at plaintiff.
On September 11, Mr. Arri gave plaintiff a Written Warning. The warning outlined plaintiff’s
behavior, explained that the warning was a result of his continued unsatisfactory behavior in violation
of the COBC, and specifically warned that failure to take immediate corrective action would result in
discipline, including termination from employment. The next day, plaintiff submitted a written
disagreement with the warning.
E. Plaintiff’s Complaint
On the evening of September 4—after Mr. Arri told him to work from home—plaintiff called
the Company’s Equal Employment Opportunity hotline and reported that Carol Peden, Traycie Haney,
Russ Claybaker, and Larry Patterson were racially harassing him by whistling and making other nonwork-related noises.
F. Plaintiff’s October 2008 Outburst and Discharge
On October 22, 2008, plaintiff believed he heard Larry Patterson whistle outside his cubicle.
Plaintiff confronted Mr. Arri in a conference room about allowing Mr. Patterson to whistle and
demanded that Mr. Arri make him stop. Plaintiff claimed that he was trying to work and “ha[d] to do
this sh*t” (i.e., record whistling on his cell phone). Mr. Arri told plaintiff that he had previously
spoken to Mr. Patterson about whistling. Plaintiff responded, “But you would not say anything to him
now? That is what I am talking about, you will say something to me when they have a problem with
me but you don’t have the balls to say anything to them when they clearly did something wrong.”
When the company later investigated the circumstances, an employee outside of the conference
room reported that plaintiff’s voice became increasingly louder. Eventually, his yelling distracted her
from a phone call and made her wonder “what was going to happen next.” Plaintiff maintains that he
was upset but not loud.
After the October 22 incident, Mr. Arri recommended plaintiff’s termination. Department
senior managers reviewed and approved the decision. On November 22, 2008, Mr. Arri informed
plaintiff of the decision.
G. Plaintiff’s Alleged Evidence of Discrimination
Plaintiff claims that the following evidence supports his race discrimination claims:
Plaintiff was the only black person in his unit.
A non-black employee once walked past plaintiff’s cubicle and said, “They don’t want
us over here; this is the dark side in more ways than one.”
After plaintiff got the manager position, he was with a co-worker, Bill Juno. When they
saw another employee who was white, Juno told plaintiff, “You took his job right
Another employee once told plaintiff that during a meeting, Greg Mullins gave
favorable reviews about a white employee’s performance but criticized plaintiff’s
In 1991, a co-worker accused Ms. Peden of saying that if the manager did not want her
to know the “f-ing password” she wanted nothing to do with the “f-ing system.” Carol
further criticized the manager, but was not fired.
Mr. Claybaker and Mr. Patterson continued to whistle in the workplace. They were not
disciplined for their conduct, but plaintiff was.
Mr. Arri supervised neither Ms. Peden nor Mr. Claybaker during the relevant times.
II. Legal Standards
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom
in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
To determine whether plaintiff can survive summary judgment on his termination claims, the
court applies the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–05 (1973). Under McDonnell Douglas, plaintiff must first establish a prima facie case of
racial discrimination and/or retaliation. If plaintiff carries that burden, defendant must then articulate a
facially nondiscriminatory reason for the challenged employment action. Trujillo v. Univ. of Colo.
Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998) (citations omitted). If defendant makes such a
showing, the burden reverts to plaintiff to prove the proffered nondiscriminatory reason is pretextual.
Id. (citations omitted). These standards apply to both plaintiff’s § 1981 claims and Title VII claims.
See Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994).
A. Title VII Claims – Mr. Arri
Plaintiff concedes that summary judgment is appropriate on his Title VII claims against Mr.
Arri. An individual cannot be held personally liable under Title VII. Haynes v. Williams, 88 F.3d 898,
901 (10th Cir. 1996). The court therefore grants summary judgment on these claims.
B. Discrimination Claims
Plaintiff alleges that defendants illegally discriminated against him by discharging him because
of his race. To allow these claims to proceed, the court must find that a genuine issue of material fact
exists as to whether plaintiff can show a prima facie case of discrimination. A prima facie case is a
flexible standard, adjusted to fit “the context of the claim and the nature of the adverse employment
action alleged.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). The elements remain the same
whether that case is brought under § 1981, § 1983, or Title VII. Carney v. City & Cnty. of Denver, 534
F.3d 1269, 1273 (10th Cir. 2008) (quotations omitted). Generally, to establish a prima facie case of
race discrimination, plaintiff must prove: (1) he is a member of a protected class; (2) he qualified for
the position or was doing satisfactory work; (3) he was subject to some adverse employment decision;
and (4) the adverse decision occurred under circumstances giving rise to an inference of unlawful
discrimination. See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1166 (10th Cir. 2007)
(quoting Plotke, 405 F.3d at 1100). Defendants contend that plaintiff can show neither that he was
satisfactorily performing his job nor that there was an inference of discrimination surrounding his
Plaintiff was involved in four incidents involving threatening outbursts within a few months.
This behavior did not comply with COBC policies. He yelled and cursed at his co-workers and his
supervisor. He pushed a door into a wall, damaging the wall. And his co-workers indicated that they
were scared by his behavior. This does not constitute satisfactory performance of one’s job—
regardless of what prior performance appraisals stated. For this reason, plaintiff cannot satisfy the
second element of his prima facie case.
The record also lacks evidence from which the court can infer discrimination. Southwestern
Bell gave plaintiff written and verbal warnings after his third outburst—specifically advising plaintiff
that further similar behavior would lead to discipline, including possible termination. And then
plaintiff had a fourth outburst about six weeks later.
The evidence plaintiff offers to show that his termination was discriminatory is inadequate to
create a genuine issue of material fact for trial. First, the statements by Bill Juno, Greg Mullins, and an
unnamed co-worker are nothing more than stray remarks by non-decisionmakers. See Mitchell v. City
of Wichita, Kan., 140 F. App’x 767, 778–79 (10th Cir. 2005) (“Evidence demonstrating discriminatory
animus in the decisional process needs to be distinguished from stray remarks in the workplace,
statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process.”); Cuenca v. Univ. of Kan., 101 F. App’x 782, 787 n.2 (10th Cir. 2004) (“In general,
statements by a non-decisionmaker . . . cannot be used to establish that a decision was tainted by
Second, the other (undisciplined) workers did not engage in similar conduct and/or did not have
the same supervisor. Whistling did not violate company policy or make other employees feel
threatened. And Ms. Peden’s incident occurred over twenty years before plaintiff’s incidents, under a
different supervisor. This evidence simply does not compare in any way to plaintiff’s behavior leading
to his termination. See Rivera v. City & Cnty. of Denver, 365 F.3d 912, 922 (10th Cir. 2004) (noting
that the comparison of disciplinary actions “is relevant only to show the bias of the person who
decided upon the disciplinary action”); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1233
(10th Cir. 2000) (“Different supervisors will inevitably react differently to employee subordination.”).
Plaintiff also attempts in his brief to present evidence that “Janice, a non-Black co-worker, has
often demonstrated emotional outbursts in the office.” The court finds this insufficient for two
reasons: First, it contradicts plaintiff’s testimony in his deposition and is an effort to create a sham
issue of fact. See Michelson v. Enrich Intern, Inc., 6 F. App’x 712, 718 (10th Cir. 2001) (“Where an
affidavit attempted to create a sham fact issue by contradicting sworn deposition testimony, it may be
properly disregarded by the court.”). Second, the assertion is wholly conclusory, lacking the detail
necessary to establish whether Janice engaged in conduct of similar seriousness.
The results of plaintiff’s unemployment and/or Kansas Human Rights Commission (“KHRC”)
proceedings do not alter this conclusion. See Kan. Stat. Ann. § 44-709(j) (“Any finding of fact or law,
judgment, determination, conclusion or final order . . . is not admissible or binding in any separate or
subsequent action or proceeding, between a person and a present or previous employer . . . .”); Palmer
v. Leawood S. Country Club, Inc., No. 97-2515-KHV, 1998 WL 724050, at *7 (D. Kan. Sept. 9, 1998)
(“[U]nemployment compensation proceedings do not have res judicata or collateral estoppel effects.”);
Timmons v. White, 314 F.3d 1229, 1234 (10th Cir. 2003) (holding that employer is not bound by prior
adverse EEOC finding when a claim is brought under Title VII); Hamwi v. Den-Tex Cent., Inc., No.
08-4151-SAC, 2010 WL 3878865, at *2 (D. Kan. Sept. 28, 2010) (excluding evidence of KHRC
Plaintiff has not provided sufficient evidence to establish a prima facie case of discrimination,
and the court dismisses these claims (both Title VII and § 1981).
Even if the court were to assume that plaintiff’s evidence met the prima facie case standard,
defendants have proffered a legitimate, non-discriminatory reason for plaintiff’s discharge: his
continued conduct in violation of the COBC despite repeated warnings. The burden therefore shifts
back to plaintiff to show that defendants’ reason for his discharge was pretextual. For all of the same
reasons stated above in the court’s analysis of plaintiff’s prima facie case, he has not shown pretext.
The result remains the same, and the court alternatively grants defendants’ motion on these grounds.
C. Retaliation Claims
Plaintiff also alleges that defendants retaliated against him for making complaints of illegal
discrimination. For plaintiff to establish a prima facie case of retaliation, he must show: (1) that he
engaged in protected opposition to discrimination; (2) “that a reasonable employee would have found
the challenged action materially adverse . . .”; and (3) that a causal connection existed between the
protected activity and the materially adverse action. Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1202 n.2 (10th Cir. 2006) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)).
The problem with plaintiff’s retaliation claims is in a lack of causation. Plaintiff engaged in
protected activity on September 4 (hotline complaint) and September 12 (rebuttal letter)—after two
incidents and in connection with a third. Southwestern Bell terminated his employment on November
22, after a fourth incident. See Twigg v. Hawker Beachcraft Corp., 659 F.3d 987, 1001–02 (10th Cir.
2011) (assessing temporal proximity “minimal probative value” when intervening events supported the
employer’s action). Over ten weeks passed between September 12 and November 22. And plaintiff
only called the hotline after Mr. Arri told him to work from home pending investigation into the third
incident. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (affirming summary
judgment on retaliation claim when the employee received warnings before engaging in protected
activity). Considering the timing of the complaint, the passage of time, and the intervening event, the
temporal proximity of the complaint to the termination alone is not sufficient to create a genuine issue
of material fact as to causation. See Webb v. Level 3 Comms., LLC, 167 F. App’x 725, 734 (10th Cir.
2006) (finding a time period between nine weeks and just under twelve weeks “probably too far apart .
. . to establish causation by temporal proximity alone”); Anderson v. Coors Brewing Co., 181 F.3d
1171, 1179 (10th Cir. 1999) (“[U]nless the termination is very closely connected in time to the
protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to
Again, even if the court were to assume that plaintiff could establish a prima facie case, his
retaliation claim would still be subject to dismissal. Defendants proffered a legitimate reason for
plaintiff’s termination, and plaintiff’s evidence is insufficient to establish pretext, for the same reasons
discussed throughout this opinion. The court grants summary judgment on plaintiff’s retaliation
Defendants have shown that they are entitled to summary judgment on plaintiff’s claims for
discrimination and retaliation. Because defendants did not move for summary judgment on plaintiff’s
hostile work environment claims, however, those claims remain for trial.
IT IS THEREFORE ORDERED that Defendants Southwestern Bell Telephone Company
and Joseph Arri’s Motion for Summary Judgment (Doc. 46) is granted. But this does not dispose of all
of plaintiff’s claims. Plaintiff’s claims for hostile work environment remain for trial.
Dated this 13th day of November, 2013, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge
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