Potts v. Saint Luke's South Hospital, Inc.
MEMORANDUM AND ORDER granting 33 DEFENDANT SAINT LUKE'S SOUTH HOSPITAL'S MOTION FOR SUMMARY JUDGMENT. Plaintiff's action is hereby dismissed on the merits, with plaintiff to take nothing on the claim. Signed by District Judge J. Thomas Marten on 8/30/2017. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 2:16-cv-02264-JTM
SAINT LUKE’S SOUTH HOSPITAL, INC.,
MEMORANDUM AND ORDER
Plaintiff Randy Potts worked as a housekeeper at Saint Luke’s South Hospital
(“SLS”) from 2004 until September 22, 2014, when SLS terminated his employment. The
termination came after plaintiff had a heated argument with a supervisor. Plaintiff filed
this suit claiming that SLS discriminated against him on account of race in violation of
Title VII of the Civil Rights Act of 1964. The matter is now before the court on SLS’s
motion for summary judgment. For the reasons set forth herein, defendant’s motion is
I. Uncontroverted Facts.
Plaintiff is an African-American male. SLS hired him on June 21, 2004, as a
housekeeper, the position he had until his termination. Plaintiff was responsible for
cleaning patient rooms, floors, and general cleaning in public areas. He worked the
evening shift for most of his tenure, including at his termination.
Housekeepers at SLS work in the Environmental Services Department (“EVS”).
Beginning in July 2014 the Manager of EVS was Dwight Hawkins, who reported to
System Director of Hospitality John McReynolds. All housekeepers reported directly to
EVS had supervisors on both the day and evening shifts. Michael Geraldi, who is
Caucasian, moved from daytime supervisor to evening supervisor shortly before
plaintiff’s termination. Plaintiff thought Geraldi was mean; he called Geraldi “the drill
sergeant.” Geraldi was a former military person who, according to plaintiff, spoke to
people in a very demanding way, “like ‘you better or else.’” Geraldi would sometimes
yell down the hallway at employees things such as, “Get back to work, what are you
doing in this area.” He frequently asked employees, “What are you doing, where are
you going?” Plaintiff testified Geraldi sometimes told him to “get your ass back to
work” and said plaintiff “had one foot out the door.” Plaintiff felt Geraldi picked on
him and was always asking him “What are you doing?”
Plaintiff contends Geraldi had a racial animus, as shown by: on one occasion,
Geraldi allegedly said he did not like fat women and “especially fat black women;” on
approximately seven occasions Geraldi said, “Potts, you’ve got one foot out the door;”
on five occasions Geraldi said to plaintiff “You better watch your back;” and on three
occasions Geraldi said to plaintiff “Get your ass back to work.” Geraldi would pick up a
rag and wave it in plaintiff’s face, asking “What’s this?” When plaintiff said it was a rag,
Geraldi would ask what it was used for. When plaintiff would respond, “for cleaning,”
Geraldi would say, “Well, how come you’re not using it?”
One day Geraldi saw plaintiff and another employee talking in the hallway and
asked “What are you doing?” Plaintiff said he was talking. Geraldi said, “You don’t
need to be talking, you need to be working.” When plaintiff left, Geraldi told the other
employee “don’t ever talk to him again.”
Before September 16, 2014, plaintiff never told SLS of any of the alleged
comments of Geraldi and never complained to SLS about him. Plaintiff was aware of
his obligation under SLS’s policies to report any harassment or discrimination.
The last Friday that plaintiff worked, Geraldi saw plaintiff in a hallway and
asked him what he was doing. Plaintiff said he was walking to where he needed to go
to work. After plaintiff went down to his area Geraldi showed up and “was on me all
day for no apparent reason.” Every time plaintiff “didn’t have anything in my hand or
he didn’t see me moving, working, [Geraldi] had a problem with that.” Plaintiff
testified that Saturday was the same way and it got worse on Sunday. Plaintiff said to
himself at that point that the next time Geraldi bothered him, he was going to report
him or “just let him know to leave me alone.”
On September 16, 2014, Geraldi hollered down a hallway toward plaintiff, “Are
you ready for a lockdown?” Prior to this, there had been some joking between Geraldi
and plaintiff about Geraldi being like a prison warden. When plaintiff replied, “What
did you say?” Geraldi repeated his question. For plaintiff this was “the last straw.”
Plaintiff responded by letting go of his cleaning tools and rushing down the hallway
toward Geraldi until he was only about an inch from Geraldi’s face. Plaintiff was quite
angry and was shouting. He told Geraldi “I’m tired of your stuff” and “I don’t like your
style.” He had his hand up, pointing or otherwise gesturing at Geraldi, although
plaintiff did not make physical contact. Plaintiff concedes he “may have been moving
his hands” but denies that he gestured in a threatening way.
Supervisor Dwight Hawkins witnessed the incident and pulled the two men into
his office. Hawkins asked what was going on, and plaintiff said Geraldi needed to “stay
off his back.” Geraldi made a comment about plaintiff leaving the room or the building
“with a toe tag,” which plaintiff interpreted as a threat. Hawkins told the men to calm
down and sent them back to work.
When plaintiff arrived the next day, Human Resources interviewed him. After
the interview, he was suspended pending an investigation. Geraldi was also
interviewed. Geraldi told Human Resources that during the altercation, plaintiff said he
had “punched out people before and will punch him out.” Human Resources also
interviewed Hawkins, who reported that plaintiff said he had “punched out CEOs
before and didn’t have a problem with hitting [Geraldi].” Plaintiff denies he made such
a statement to Geraldi.
SLS’s Rules of Conduct set out examples of behaviors that may result in
immediate discipline up to and including discharge. The examples include: fighting,
causing a fight, or striking anyone on Health System property; use of profane,
threatening, or abusive language towards others; scuffling, throwing objects, or
horseplay of any description; and failure to cooperate or display courtesy to other
Tonya Robinson of Human Resources conducted an investigation. HR prepared
a disciplinary report on September 22, 2014, that recommended plaintiff’s termination
for inappropriate behavior and failure to adhere to policies. The report asserted that
plaintiff engaged in inappropriate behavior (“threatening acts at an employee” and
“using verbal attacks”), that his behavior was inexcusable and a major violation of
company policy, and that plaintiff “had a history of this type of behavior and has
received discipline for it.” John McReynolds and Director of Human Resources Donna
Kunz reviewed the report and made the decision to terminate plaintiff’s employment.
Geraldi was not consulted about the decision. Hawkins would have been consulted and
had input because of his managerial role. In reaching their decision, McReynolds and
Kunz considered plaintiff’s prior discipline for aggressive behavior. Plaintiff had been
suspended in April 10, 2013, for an incident in which he became angry in a break room,
slammed his hands down on a table, and used profanity. Plaintiff’s supervisor at the
time was Dennis Collins. Plaintiff had no problem with Collins and attributes no racial
animus or comments to him.
McReynolds was aware when he terminated plaintiff that another employee said
Geraldi was not easy to work with, that he was critical, and that he was not a team
player. He was also aware from the incident report that plaintiff complained about
Geraldi’s treatment of him.
Emails show that on September 24, 2014, Tonya Robinson pointed out to
McReynolds that according to Dwight Hawkins, Geraldi told plaintiff during the
altercation that “if anyone will leave out of here it will be you with a toe tag.”
McReynolds asked Hawkins to document the comment. On September 29, 2014, HR
prepared a disciplinary report recommending Geraldi’s termination for inappropriate
conduct and violation of the Rules of Conduct. The report noted Geraldi’s “toe tag”
comment and said Geraldi had been counseled several times before on how to speak to
staff. It said “this type of conduct is inexcusable for any employee let alone one in a
leadership role” and that “using verbal attacks” was grounds for dismissal.
McReynolds approved Geraldi’s termination on October 3, 2014.
At his deposition, plaintiff was asked whether he agreed that his behavior that
day was a major violation of the company’s behavior policy. Plaintiff responded, “Yeah,
it was pretty bad. Yes, I agree.” In a declaration, plaintiff clarifies that the incident
became “’pretty bad’ only after [Geraldi] threatened to kill me.”
II. Summary Judgment Standards.
Summary judgment is appropriate if the moving party demonstrates that there is
no genuine dispute as to any material fact, and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A fact is “material” when it is essential to the claim,
and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury
to decide the issue in either party's favor. Haynes v. Level 3 Communs., 456 F.3d 1215,
1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the
lack of evidence on an essential element of the claim. Thom v. Bristol–Myers Squibb Co.,
353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986)). The nonmovant must then bring forth specific facts showing a genuine issue for
trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all
evidence and reasonable inferences in the light most favorable to the nonmoving party.
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
Plaintiff contends he was discharged on account of his race. Under Title VII, it is
unlawful “to discharge any individual, or otherwise discriminate against any individual
with respect to his … conditions of employment, because of such individual’s … race.”
42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of discriminatory intent, a
Title VII violation can be proved with circumstantial evidence. A plaintiff may prove
discriminatory intent by showing that “the challenged action took place under
circumstances giving rise to an inference of discrimination.” E.E.O.C. v. PVNF, L.L.C.,
487 F.3d 790, 800 (10th Cir. 2007). In analyzing such claims, the court uses the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination.
If plaintiff does so, the employer must then identify legitimate, nondiscriminatory
reasons for its action. Finally, if the employer meets that burden, the plaintiff must then
establish that the employer's articulated reason was a pretext to mask unlawful
discrimination. McDonnell, 411 U.S. at 802–04.
SLS contends it is entitled to summary judgment because plaintiff fails to
establish a prima facie case of discrimination and because SLS’s stated reason for the
termination was non-discriminatory and plaintiff cites no evidence that it was a pretext
for discrimination. Because the court agrees with the latter argument, it need not
address the former one.
A plaintiff demonstrates pretext by producing evidence of “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Jaramillo v. Colo. Judicial Dept., 427 F.3d 1303, 1307
(10th Cir. 2005).
Plaintiff contends evidence of pretext exists because of the following. First, he
was fired on September 22, 2014, six days after the incident, but Geraldi was not fired
until over two weeks after the incident. Second, SLS allegedly failed to get a statement
from Gino Carillo, who according to plaintiff was “the only non-management witness
to the incident.” And third, plaintiff argues that the factual reasons for the termination
cited by McReynolds in his deposition have been contravened by plaintiff and are
unworthy of belief. Dkt. 39 at 17-18.
The discrepancy between the termination dates of plaintiff and Geraldi cannot
support an inference of pretext. The record shows that Human Resources recommended
plaintiff’s termination on September 22 and Geraldi’s termination on September 29.
Emails show that in between those two dates, McReynolds corresponded with HR
about the investigation and requested that Hawkins document Geraldi’s “toe tag”
comment. McReynolds subsequently approved Geraldi’s termination within a few days
of HR’s report and recommendation. This difference in termination dates, standing
alone, is trivial and cannot reasonably support an inference that SLS did not really
terminate plaintiff based upon his conduct in the September 16 incident.
SLS’s alleged failure to obtain a statement from eyewitness Gino Carillo likewise
cannot support a finding of pretext. Plaintiff cites no evidence that Carillo would offer a
materially different version of the incident or that it could affect SLS’s conclusion that
plaintiff violated its rules and should be terminated. In fact, plaintiff’s conduct during
the incident is (with one or two exceptions) basically uncontroverted and is consistent
with SLS’s stated reason for terminating him. Plaintiff makes no showing that the
failure to obtain a statement from Carillo made any possible difference in the outcome
or undermines the credence of SLS’s justification for the termination.
Finally, plaintiff attempts to show that some of McReynold’s deposition answers
support an inference of pretext. He first asserts that McReynolds falsely stated plaintiff
“threw” his mops at the outset of the confrontation with Geraldi. Plaintiff was asked in
his deposition whether he threw his mops and broom down and responded: “I do
believe I had something in my hand. I think – maybe I – I tried to put it up against the
wall. I don’t know what it was. But yeah, I had something in my hand, and I let it go.”
Dkt. 34-1 at 21. This minor difference in characterization – throwing a mop down versus
letting it go - does not give rise to an inference of pretext. Next, plaintiff singles out
McReynolds’ statement that plaintiff “ran after” Geraldi. See Dkt. 39-2 at 13
(McReynolds stating in deposition testimony that plaintiff “in the hallway, ran after
[Geraldi], and he’s tired of putting up with this stuff, and the way that it was described
to me, that it was an aggressive behavior toward [Geraldi]”). Plaintiff’s deposition
testimony was that he didn’t say anything in response to Geraldi’s question, he “just
rushed – rushed – I didn’t run. I was walking real fast, and it’s like this (indicating),
really, really close to him.” Dkt. 34-1 at 16. Again, the difference between “walking real
fast” and running towards Geraldi is a minor distinction that does not suggest pretext.
Plaintiff makes similar arguments with respect to McReynold’s statements about
“threatening gestures,” “fighting,” and using “profanity.” Plaintiff’s own testimony
would support a conclusion that his gestures could have been perceived as threatening
by Geraldi, even if that was not plaintiff’s intention. See Dkt. 34-1 at 8 (“And we got into
a little shouting match – shouting. I think he thought I was coming down there to hit
him, but I was really, really close to him, and I was letting him know how I felt about it
And I was angry about it.”) and at 16 (“And I think - I never – my intention was not to
hit him. Maybe I had my hand up maybe pointing but not in his face. I was just moving
my hands around. So I guess that’s where [Hawkins] maybe assumed that I was going
to do some physical harm to him.”). As for “fighting,” McReynolds clarified in his
deposition that he was not claiming plaintiff had engaged in or caused any physical
striking, but said he had engaged in “aggressive behavior that … could lead to a fight.”
McReynolds also clarified, after initially stating erroneously that plaintiff’s improper
conduct involved “aggressive behavior and profanity,” that there was no report of
plaintiff using profanity but that “his aggressive behavior” justified the termination.
Dkt. 39-2 at 13.
None of these contentions, alone or in combination, are sufficient to raise a
genuine issue of pretext. Moreover, in determining whether a proffered reason was
pretextual, the court “examine[s] the facts as they appear to the person making the
decision” and does not “look to the plaintiff’s subjective evaluation of the situation.”
Depaula v. Easter Seals El Mirador, 859 F.3d 957, 971 (10th Cir. 2017) (quoting EEOC v.
C.R. England, Inc., 644 F.3d 1028, (10th Cir. 2011) (emphasis in Depaula). The relevant
inquiry “concerns the belief of the employer that the employee engaged in misconduct,
not whether the actual facts, as shown by evidence extrinsic to the employer’s
assessment, may have been otherwise.” Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178
(10th Cir. 2005). Plaintiff cites no evidence to reasonably suggest that McReynolds and
Kunz did not in good faith believe plaintiff had engaged in inappropriately aggressive
conduct in the dispute with Geraldi. As such, he has failed to show a genuine issue of
fact as to whether SLS’s justification for his termination was a pretext for
IT IS THEREFORE ORDERED this 30th day of August, 2017, that defendant’s
motion for summary judgment (Dkt. 33) is GRANTED. Plaintiff’s action is hereby
dismissed on the merits, with plaintiff to take nothing on the claim.
___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE
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