Marshall v. General Motors LLC
MEMORANDUM AND ORDER granting in part and denying in part 29 Defendant's Motion for Summary Judgment. Signed by District Judge John W. Lungstrum on 11/14/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Case No. 16-cv-2651-JWL
General Motors LLC,
MEMORANDUM & ORDER
Plaintiff filed this lawsuit against his employer, General Motors LLC (“GM”), alleging
that GM demoted plaintiff from a supervisory position to a non-supervisory position on the basis
of his race. Plaintiff’s race discrimination claim is asserted under both Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiff further alleges
that GM demoted him from a supervisory position to a non-supervisory position in retaliation
for plaintiff’s engaging in protected activity. Plaintiff’s retaliation claim is asserted under Title
VII. This matter is presently before the court on defendant’s motion for summary judgment
As will be explained, the motion is granted with respect to plaintiff’s race
discrimination claim and is denied with respect to plaintiff’s retaliation claim.1
In the pretrial order, plaintiff also sets forth a failure-to-promote claim based on GM’s failure
to promote plaintiff to a regular, salaried group leader position by December 2014. Defendant
moved for summary judgment on that claim and plaintiff has failed to address that claim in his
response. This aspect of defendant’s motion, then, is granted as unopposed.
The following facts are uncontroverted, stipulated in the pretrial order, or related in the
light most favorable to plaintiff as the nonmoving party. Plaintiff Cleatus “Skip” Marshall, an
African-American male, has been employed with defendant General Motors LLC since 1995,
when he began working as an hourly employee at defendant’s automobile assembly plant in
In 2009, the Janesville plant closed and plaintiff transferred to
defendant’s automobile assembly plant in the Fairfax district of Kansas City, Kansas. He has
been employed at the Fairfax plant since August 2009.
In December 2013, plaintiff became a “per diem” group leader. A per diem group leader
is an hourly employee assigned to manage 30 to 40 hourly employees. Per diem group leaders
may be terminated at the end of any shift on any day upon notice by management, but generally
a per diem group leader assignment lasts at least 12 months. Prior to his selection, plaintiff
submitted a resume and interviewed with Jean Manning and Danean Myers, both of whom were
operations managers in the plant’s quality department. Both Ms. Manning and Ms. Myers are
Caucasian. Plaintiff was offered and accepted the per diem group leader position and was
assigned to the Quality Department on the third shift. As a per diem group leader, plaintiff did
not receive regular or periodic written performance evaluations.
When plaintiff began his per diem assignment, he reported directly to Ms. Myers. The
record does not reflect any performance-related issues that plaintiff had while working under
Ms. Myers’ supervision and plaintiff’s personnel file contains no documentation of any
performance deficiencies during the time period he was supervised by Ms. Myers. In July 2014,
plaintiff began reporting to Ms. Manning. Ms. Myers did not inform Ms. Manning of any
deficiencies in plaintiff’s work performance.
At that time, Ms. Manning supervised
approximately 10 to 12 group leaders across three shifts, three of whom, including plaintiff,
were African-American. The record contains no evidence of any performance deficiencies
during the first seven months that plaintiff worked under Ms. Manning’s supervision.
Moreover, in December 2014, plaintiff’s per diem assignment was extended for an additional 12
months and, in January 2015, plaintiff was selected to assist GM’s Wentzville plant during a
slow period at the Fairfax plant. Plaintiff worked at the Wentzville plant for approximately
In February 2015, Ms. Manning had a discussion with plaintiff regarding “VTIMs,”
which are jobs that are not properly processed by the driver on the CARE line. The CARE line
is the final inspection station in the assembly process. Ms. Manning memorialized the discussion
by writing that “it was obvious [plaintiff] did not understand the process,” and that she had
explained the process to him as well as the need to address the team member who had not
properly processed the job.
The parties dispute whether this discussion was a one-on-one
discussion between Ms. Manning and plaintiff or whether the discussion was a broader group
discussion between Ms. Manning and other group leaders.
Ms. Manning avers that this
discussion occurred solely between herself and plaintiff. Plaintiff recalls only that Ms. Manning
discussed VTIM issues with all group leaders. In any event, plaintiff agrees that as a group
leader he would have some responsibility for addressing a team member’s failure to properly
process jobs. Approximately two weeks later, in late February 2015, Ms. Manning documented
While Ms. Manning’s notes regarding this discussion are not signed by Ms. Manning or
plaintiff, she avers that that she created her notes contemporaneously with the events described
another incident in which plaintiff “[r]an out of Israeli export bags,” which are utilized to wrap
cars for overseas shipping and that he failed to remedy the situation by arranging for more to be
ordered, causing the line to operate without the bags. It is unclear from the record whether Ms.
Manning discussed this issue with plaintiff. Regardless, these are the first two performance
issues documented by Ms. Manning in the first seven months of her supervision of plaintiff.
During a cross-shift meeting on March 3, 2015, plaintiff was giving an end-of-shift report
and discussed an incident in which a representative of the plant medical department had
mistakenly contacted Edward Tyree, another African-American group leader, rather than
plaintiff to report on the status of one of plaintiff’s assigned employees.
explained the situation and the apparent mistaken identity, Ms. Manning laughed and said:
“Well, all you black guys look alike.” Ms. Manning testified that her comment was directed
toward the person who had seemed to confuse plaintiff with Mr. Tyree, noting that individual’s
apparent inability to distinguish between two African-American supervisors.3 Plaintiff testified
that he felt humiliated by the comment, in part because Ms. Manning was laughing when she
said it and then other members of management laughed in response. At the end of the meeting,
plaintiff approached Ms. Manning and told her that he found her comment to be “derogatory.”
Ms. Manning testified that she apologized to plaintiff at that time. Plaintiff testified that Ms.
Manning merely stated that the comment “was a joke” and walked away without apologizing to
Ms. Manning recalled that the individual who had mistaken Mr. Tyree for plaintiff had actually
entered the meeting and misidentified plaintiff at the meeting.
On March 23, 2015, Ms. Manning documented a discussion she had with plaintiff about
the Business Plan Development (“BPD”) board not being up to date and about team leaders
failing to complete Safety Observation Tour cards, for which plaintiff had responsibility. One
week later, on March 30, 3015, plaintiff reported Ms. Manning’s March 3, 2015 comment to
Tiffany Brigman, a salaried personnel representative at the plant. One week after plaintiff’s
report, on April 7, 2015, Ms. Manning was issued a verbal counseling for making the comment.
After she received a verbal counseling, Ms. Manning apologized to plaintiff for the comment.
In May 2015, plaintiff was involved in an on-the-job dispute with Michael Peck, a
Caucasian group leader. The dispute began when Mr. Peck stated that plaintiff’s deficient
leadership had contributed to plaintiff’s shift failing a recent audit. During the discussion, Mr.
Peck became visibly agitated, shouted profanities at plaintiff, and ultimately “chest bumped”
plaintiff. Plaintiff reported the incident to Ms. Brigman and Ms. Manning. Ms. Manning
responded to the incident by moving plaintiff to a different area within the quality department.
Ms. Brigman responded by verbally counseling Mr. Peck (who denied any physical contact with
plaintiff) and advising him that future incidents would result in more severe discipline. Shortly
after the dispute, plaintiff went on paternity leave. When he returned to the plant, he sent an
email dated July 16, 2015 to Rita Derencius, the plant personnel director, in which he pressed
defendant to take action against Mr. Peck and questioned Mr. Peck’s continued employment
with defendant and defendant’s commitment to its “zero tolerance” policy with respect to
workplace violence. Plaintiff then met with Ms. Manning, Ms. Brigman, Rick Hinzpeter (Ms.
Manning’s supervisor), and Ms. Derencius about the incident and defendant’s response to it.
Ultimately, a memorandum was placed in Mr. Peck’s file requiring Mr. Peck to participate in a
conflict management webinar and to initiate an Employee Assistance Program counseling
In the meantime, Ms. Manning continued to document issues relating to plaintiff’s job
performance, including plaintiff’s alleged inability to understand various systems and processes;
weak audit results; failure to execute a Performance Improvement Plan, and reluctance to hold
hourly employees accountable for their work. In September 2015, plaintiff counseled Lisa
Harris, an employee under his supervision, after she made mistakes relating to the entry of
defects into a computer program utilized to track defects on the assembly line. On October 19,
2015, Ms. Manning, during an audit, was made aware of additional mistakes that Ms. Harris had
made. Ms. Manning talked to plaintiff about the results of the audit and his failure to address
Ms. Harris’s performance appropriately. During this discussion, plaintiff told Ms. Manning that
he believed she was “targeting” him in retaliation for his March 2015 report to Ms. Brigman
about Ms. Manning’s race-based comment.
After meeting with Ms. Manning, plaintiff put Ms. Harris “on notice” of formal discipline
for continuing to make errors with regard to the entry of defects into the computer program. As
an hourly employee, Ms. Harris was entitled to a disciplinary interview before the assessment of
formal discipline pursuant to paragraph 76(a) of the collective bargaining agreement. In his two
years as a per diem group leader, plaintiff had never participated in a “76(a) interview” or
assessed discipline against employees for anything other than attendance-related violations.
Prior to conducting the 76(a) interview with Ms. Harris, plaintiff had a discussion with Tim
Wells, another manager within the quality department, who reviewed the process for negotiating
a disciplinary penalty with plaintiff. Mr. Wells suggested that plaintiff write up a draft of the
disciplinary notice. Plaintiff asserts that he asked Mr. Wells for help, but Mr. Wells refused to
During the 76(a) interview on October 26, 2015, Ms. Harris’s union representative
requested documentation of Ms. Harris’s mistakes. Plaintiff did not have the documentation and
spent 30 minutes looking for pertinent documents but could not find them. A labor relations
representative present during the interview advised Ms. Manning that the interview was “the
worst” he had witnessed. Mr. Wells advised Ms. Manning that it was “very unusual” that
plaintiff had not issued any discipline for shop rules violations during his two years as a
supervisor. Mr. Wells told Ms. Manning that plaintiff seems “resistant to disciplining hourly
employees” and had a “very strong hourly mentality when it comes to accomplishing tasks in his
day to day function.”
After the 76(a) interview, Ms. Manning consulted with Mr. Hinzpeter as well as Ms.
Brigman and Ms. Derencius. Ms. Manning recommended that plaintiff be removed from his
group leader position. Management agreed with that recommendation and plaintiff was notified
of that decision on November 5, 2015. In that notification, defendant asserted that it was
returning plaintiff to his prior position as a Team Member in the body shop as a result of
“continued performance issues” including “resistance/hesitant/not capable of assessing
discipline to hourly employees” and repeated audits indicating that one of his team members
was not entering defects into the computer system properly.
Additional facts will be provided as they relate to the specific arguments raised by the
parties in their submissions.
Summary Judgment Standard
“Summary judgment is appropriate if the pleadings, depositions, other discovery
materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med–Systems, Inc.,
726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual
issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving
party is entitled to all reasonable inferences from the record; but if the nonmovant bears the
burden of persuasion on a claim at trial, summary judgment may be warranted if the movant
points out a lack of evidence to support an essential element of that claim and the nonmovant
cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.
Race Discrimination Claim
In the pretrial order, plaintiff asserts that defendant removed plaintiff from the per diem
group leader position and returned him to a non-supervisory position on the basis of his race.4
Plaintiff concedes that he has no direct evidence of discrimination, and his claim is therefore
analyzed using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir.
2012). Under McDonnell Douglas, plaintiff has the initial burden of establishing a prima facie
Plaintiff’s discrimination claim is asserted under both Title VII and § 1981. The court applies
the same standards and burdens to plaintiff’s § 1981 claim as it applies to plaintiff’s Title VII
claim. Crowe v. ADT Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011); Aramburu v. Boeing
Co., 112 F.3d 1398, 1403 n.3 (10th Cir. 1997).
case of discrimination. Id. To set forth a prima facie case of discrimination, plaintiff must
establish “(1) membership in a protected class and (2) an adverse employment action (3) that
took place under circumstances giving rise to an inference of discrimination.” Id. (citing EEOC
v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007)). If he establishes a prima facie case, the
burden shifts to defendant to assert a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If defendant meets this burden, summary judgment against plaintiff is
warranted unless he introduces evidence “that the stated nondiscriminatory reason is merely a
pretext for discriminatory intent.” Id. (citing Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th
Defendant, for purposes of its motion, concedes that plaintiff can establish a prima facie
case of race discrimination concerning his removal from the per diem group leader position.
Defendant moves for summary judgment solely on the grounds that plaintiff cannot demonstrate
that defendant’s legitimate, non-discriminatory reason for removing plaintiff from the group
leader position is pretextual. According to defendant, it removed plaintiff from the group leader
position because plaintiff’s performance did not meet the expectations of plant management,
particularly Ms. Manning. Defendant has carried its “exceedingly light” burden to articulate a
legitimate, nondiscriminatory reason for plaintiff’s demotion. See Carter v. Pathfinder Energy
Servs., Inc., 662 F.3d 1134, 1149 (10th Cir. 2011). The burden of proof, then, shifts back to
plaintiff to show that defendant’s proffered reason is pretextual.
Evidence of pretext “may take a variety of forms,” including evidence tending to show
“that the defendant’s stated reason for the adverse employment action was false” and evidence
tending to show “that the defendant acted contrary to a written company policy prescribing the
action to be taken by the defendant under the circumstances.” Id. at 1150 (quoting Kendrick v.
Penske Transp. Servs., Inc, 220 F.3d 1220, 1230 (10th Cir. 2000)). A plaintiff may also show
pretext with evidence that the defendant had “shifted rationales” or that it had treated similarly
situated employees differently. Crowe v. ADT Servs., Inc., 649 F.3d 1189, 1197 (10th Cir.
In essence, a plaintiff shows pretext by presenting evidence of “weakness,
implausibility, inconsistency, incoherency, or contradiction in the employer’s stated reasons,
such that a reasonable jury could find them unconvincing.” Debord v. Mercy Health System of
Kansas, Inc., 737 F.3d 642, 655 (10th Cir. 2013). In determining whether the proffered reason
is pretextual, the court examines “the facts as they appear to the person making the decision, not
as they appear to the plaintiff.” Id. The court does not “ask whether the employer’s proffered
reasons were wise, fair or correct” but only whether “the employer honestly believed those
reasons and acted in good faith upon those beliefs.” Id. The court analyzes plaintiff’s pretext
Plaintiff first asserts that Ms. Manning’s “racially derogatory” remark demonstrates her
animus toward African-Americans. Because the remark, while undoubtedly inappropriate, can
only be characterized as a “stray remark” under Tenth Circuit precedent, it cannot support an
inference of race discrimination. See Hysten v. Burlington N. Santa Fe Ry. Co., 415 Fed. Appx.
897, 911 (10th Cir. Mar. 16, 2011) (statements made by decisionmakers unrelated to the
decisional process are “stray remarks” that are insufficient to establish bias). The comment was
made nearly eight months before the demotion decision. See Wagoner v. Pfizer, Inc., 391 Fed.
Appx. 701, 708 (10th Cir. Aug. 12, 2010) (allegedly age-related remark insufficient to establish
pretext in part because remark was made approximately nine months prior to termination
decision) (citing Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1184 (10th Cir. 2006)). And
while the remark was made by a decisionmaker, the uncontroverted facts demonstrate that three
other individuals in addition to Ms. Manning were involved in the decision to remove plaintiff
from the per diem group leader position.
Plaintiff does not suggest that these other
individuals—Mr. Hinzpeter, Ms. Brigman or Ms. Derencius—bore any animus against him
specifically or African-Americans in general. Moreover, there is no evidence that Ms. Manning
made any other remarks related to race at any time. The remark, then, is an isolated one.
Finally, the court notes that, while certainly not dispositive, Ms. Manning participated in the
decision to hire plaintiff for the per diem group leader. This fact bolsters the conclusion that
Ms. Manning’s isolated remark, in light of the totality of the circumstances, does not support an
inference of discrimination.
Plaintiff also asserts that defendant’s “practice” of hiring African-Americans as per diem
group leaders as opposed to regular salaried group leaders provides an inference of race
discrimination.5 The court rejects this argument. The evidence in the record is insufficient to
establish a “practice” of hiring African-Americans as per diem group leaders rather than salaried
group leaders and, more importantly, that any such practice suggests an inference of race
discrimination. To begin, there is no evidence in the record concerning how and why defendant
decided to hire a “per diem” group leader as opposed to a regular, salaried group leader. There
is no evidence as to whether these decisions were based on need or a particular employee’s
qualifications or experience, or any other reason among the myriad reasons an employer might
According to plaintiff, per diem group leaders can be more easily removed from those positions
while regular salaried group leaders cannot be terminated without extensive performance
discussions and the completion of a Performance Improvement Plan.
have for making such decisions. There is no evidence in the record about who made the hiring
decisions in question.
Without that information, no reasonable jury could conclude that
defendant’s hiring practices suggest an inference of race discrimination. Moreover, although
plaintiff contends that defendant hired four African-American “per diem” group leaders in the
quality department over a three-year period and hired four Caucasian “regular” group leaders
over the same period, plaintiff’s evidence demonstrates that at least two of the Caucasian group
leaders were initially hired on a “contract basis” and only later became salaried group leaders.
Similarly, two of the African-American “per diem” group leaders ultimately became regular
salaried group leaders.
Because of the significant gaps in plaintiff’s evidence concerning
defendant’s hiring “practices,” that evidence does not permit an inference of discrimination.
Next, plaintiff argues that defendant, in connection with its investigation of the Mike
Peck incident, neglected the accounts of African-American witnesses to the incident. Despite
plaintiff’s use of the plural “witnesses,” plaintiff’s evidence on this point concerns only one
African-American employee, Clayton Crout. But plaintiff’s evidence does not establish or even
suggest that Mr. Crout’s account of the incident was neglected or ignored. According to the
evidence, Ms. Brigman, on June 10, 2015, learned that Mr. Crout might have witnessed the
incident and she asked Richard Welc, a labor relations representative, to interview Mr. Crout.
The record reflects that Mr. Welc interviewed Mr. Crout on June 11, 2015. There is no evidence
that Ms. Brigman realized prior to June 10, 2015 that Mr. Crout had witnessed the incident and
yet decided not to interview him about that incident. Rather, the evidence reflects only that Mr.
Crout was interviewed within one day of management’s realization that he may have witnessed
the incident. Moreover, Mr. Welc’s documentation of the interview with Mr. Crout reveals that
Mr. Crout’s assessment of the incident was consistent with defendant’s initial conclusions—that
is, Mr. Crout reported that he did not see any physical contact between Mr. Peck and plaintiff.
No inference of discrimination is permitted under these circumstances.6
Finally, plaintiff contends that a reasonable jury could infer that defendant’s asserted
dissatisfaction with plaintiff’s performance is unworthy of belief.
highlights that he had no performance-related deficiencies while working for Ms. Myers; that
Ms. Manning’s notes are “dubious at best” and do not necessarily reflect that Ms. Manning had
discussions with plaintiff or disciplined plaintiff for performance-related issues; and that no
performance issues were documented prior to Ms. Manning’s race-based remark. Ms. Myers’
perception of plaintiff’s performance is not relevant in determining pretext; a proper challenge
of pretext considers the facts as they appear to the person making the decision, in this case Ms.
Manning. See Metzler v. Federal Home Loan Bank, 464 F.3d 1164, 1176 & n.5 (10th Cir. 2006)
(differences in the evaluation of an employee’s performance do not establish a genuine issue on
pretext because different supervisors may impose different standards); Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000); Richardson v. Gallagher, 553 Fed.
Appx. 816, 825 (10th Cir. Jan. 29, 2014) (fact that plaintiff in the past performed in an
While it is not clear from his submissions, plaintiff may be alleging that Ms. Brigman
discounted the version of events described by Andre Hobson, the African-American team leader
who intervened in the dispute between Mr. Peck and plaintiff. Mr. Hobson apparently reported
to Ms. Brigman, while plaintiff was on paternity leave, that he observed physical contact
between the two men in the form of a “chest bump.” But Mr. Hobson’s report was made two
weeks after the incident and after Ms. Brigman had already counselled Mr. Peck over the
incident. Rather than discounting Mr. Hobson’s report, she simply determined that additional
discipline beyond what had occurred was not warranted. Moreover, the court cannot conclude
that defendant neglected the accounts of African-American employees because Ms. Brigman
clearly sought out Mr. Crout to obtain his statement as to what occurred between plaintiff and
exemplary manner not pertinent); Eilam v. Children’s Hosp. Ass’n, 1999 WL 176128, at *4
(10th Cir. Mar. 31, 1999) (positive prior performance does not establish that later unsatisfactory
performance evaluation is pretextual). Moreover, as noted earlier, Ms. Manning avers that she
created her notes contemporaneously with the events described therein and plaintiff does not
otherwise assert how the notes are “dubious.” While plaintiff is correct that the notes do not
suggest that Ms. Manning always counseled or disciplined plaintiff about a particular issue that
she documented, plaintiff directs the court to no evidence suggesting that Ms. Manning was
required to do so or that her failure to do so contravened Ms. Manning’s regular practice. And
while plaintiff is correct that he did not receive any disciplinary action or notification in his
personnel file of any performance issues prior to Ms. Manning’s race-based remark in early
March 2015, the record does reflect that Ms. Manning, on two occasions, documented
performance-related issues concerning plaintiff prior to March 2015.7
While the court has addressed (and rejected) separately the pieces of circumstantial
evidence that plaintiff claims demonstrate a pretextual explanation for his demotion, the court’s
inquiry is not at an end. The ultimate question on summary judgment for purposes of this case
is whether plaintiff has presented sufficient evidence such that there is a genuine issue of
material fact concerning whether plaintiff’s race actually motivated defendant’s decision to
remove plaintiff from the group leader position. This question “cannot be answered by looking
at the plaintiff’s evidence in a piecemeal manner.” Voltz v. Coca–Cola Enterprises Inc., 2004
WL 100507, at *9 (10th Cir. 2004).
Rather, the court must consider whether plaintiff’s
In any event, plaintiff’s argument concerning the timing of Ms. Manning’s remark seems
misplaced in the context of plaintiff’s discrimination claim (as opposed to plaintiff’s retaliation
evidence, taken as a whole, is sufficient to show pretext. Simms v. Oklahoma ex rel. Dep’t of
Mental Health & Subs. Abuse Servs., 165 F.3d 1321, 1331 (10th Cir. 1999) (noting that the
court, in pretext analysis, “must” consider circumstantial evidence in its totality). Ultimately,
the court concludes that the facts of this case, viewed in the light most favorable to plaintiff, do
not give rise to an inference of pretext in the context of plaintiff’s discrimination claim.
Plaintiff, then, has failed to meet his burden of demonstrating pretext and summary judgment in
favor of defendant is warranted on plaintiff’s claim of race discrimination.
Plaintiff also asserts in the pretrial order that defendant removed him from the per diem
group leader position and returned him to a non-supervisory position in retaliation for his
complaints that he had been subjected to racial discrimination and retaliation.8 The court
assesses plaintiff’s retaliation claim under the McDonnell Douglas framework.
United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012). To state a prima facie case for
retaliation, plaintiff “must show (1) he engaged in protected opposition to discrimination, (2) a
reasonable employee would have considered the challenged employment action materially
adverse, and (3) a causal connection existed between the protected activity and the materially
adverse action.” Id. (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir.
2008)). If plaintiff presents a prima facie case of retaliation, then defendant must respond with a
legitimate, nonretaliatory reason for the challenged action. Debord v. Mercy Health Sys. of
Despite the fact that 42 U.S.C. § 1981 encompasses claims of retaliation, see CBOCS West, Inc.
v. Humphries, 553 U.S. 442, 457 (2008), the pretrial order suggests that plaintiff is asserting his
retaliation claim only under Title VII.
Kansas, Inc., 737 F.3d 642, 656 (10th Cir. 2013). Plaintiff, then, must show that defendant’s
stated reason is pretextual. Id.
In its motion for summary judgment, defendant contends that summary judgment is
warranted on plaintiff’s retaliation claim because the evidence viewed in the light most
favorable to plaintiff demonstrates that he did not engage in protected opposition to
discrimination and, in any event, he cannot establish a causal connection between any protected
activity and the decision to remove plaintiff from the group leader position. Defendant further
argues that the record evidence is insufficient to permit a reasonable jury to conclude that
defendant’s proffered reason for plaintiff’s termination is pretextual. As will be explained, the
court denies summary judgment on plaintiff’s retaliation claim in light of material factual issues
that must be resolved at trial.
In his submissions, plaintiff contends that he engaged in protected activity on three
occasions: Plaintiff’s March 30, 2015 report to Ms. Brigman concerning Ms. Manning’s racebased remark; plaintiff’s July 16, 2015 email to Ms. Derencius in which he complained about a
“hostile and stressful work environment” based on the Mike Peck situation; and plaintiff’s
October 19, 2015 verbal complaint to Ms. Manning in which he told her that she was targeting
him in retaliation for his March 2015 report. In its motion for summary judgment, defendant
contends that plaintiff cannot establish that his March 30, 2015 report constitutes protected
activity because no reasonable person would have believed that Ms. Manning’s isolated remark
constituted discrimination in violation of federal law. See Hertz v. Luzenac Am., Inc., 370 F.3d
1014, 1015–16 (10th Cir. 2004) (plaintiff need not prove actual violation of Title VII but only a
“reasonable good-faith belief” that the conduct was prohibited by Title VII).
In support of its argument, defendant relies primarily on Clark County School District v.
Breeden, 532 U.S. 268 (2001), in which the Supreme Court held that no reasonable person could
have believed that a “single incident” violated Title VII. The facts of Breeden are not analogous
to this case. In Breeden, two men and one woman met to review applications for a job opening.
The woman read aloud a sexually explicit comment contained in one application and the two
men “chuckled.” Id. at 269. The Court determined that because the “ordinary terms and
conditions of [the woman’s] job required her to review the sexually explicit statement in the
course of screening” job applications and that she “conceded that it did not bother or upset her to
read the statement in the file,” the isolated incident was not so severe as to constitute
harassment. Id. at 271. Here, plaintiff’s evidence demonstrates that his non-African-American
supervisor, in the presence of other non-African-American members of management, made a
race-based remark directed at plaintiff during a work meeting and that plaintiff was embarrassed
and humiliated by the remark. Breeden, then, is not persuasive to the court. Moreover, contrary
to defendant’s suggestion, “opposition clause claims grounded in isolated comments are not
always doomed to summary judgment.” See EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 24243 (5th Cir. 2016) (one sexually explicit comment made by supervisor and directed at plaintiff
was sufficient to require jury resolution of “reasonable belief” question); Alexander v. Gerhardt
Enters., Inc., 40 F.3d 187, 195–96 (7th Cir. 1994) (finding that district court did not clearly err
in finding that plaintiff reasonably believed that a single racial slur was racially offensive and
violated the law); Corcoran v. City of Chicago, 2015 WL 1345545, at *5 (N.D. Ill. Mar. 23,
2015) (jury could conclude that plaintiff’s report of a single racial slur made by supervisor was
based upon a reasonable good-faith belief that the slur constituted discrimination).
A reasonable person, unfamiliar with the law, could have believed that Ms. Manning’s
remark was discriminatory given the specific context. Defendant is not entitled to summary
judgment on this issue. See Duran v. LaFarge North America, Inc., 855 F. Supp. 2d 1243 (D.
Colo. Jan. 9, 2012) (“The Court finds that it is reasonable for an individual without legal training
to believe that the use of a racial slur in the workplace, even if it was an isolated incident . . .
violates Title VII.”).
Plaintiff’s October 19, 2015 verbal complaint to Ms. Manning also
constitutes protected activity for purposes of plaintiff’s prima facie case. With respect to this
complaint, defendant contends only that plaintiff cannot “bootstrap” his prior unprotected
complaint into a second, protected one. But because the court has concluded that, for summary
judgment purposes, plaintiff’s first complaint was protected, this argument necessarily fails.9
Defendant next asserts that summary judgment is appropriate because plaintiff cannot
establish a causal connection between any protected activity and defendant’s decision to remove
plaintiff from the group leader position. In support of this argument, defendant focuses on the
eight-month gap between plaintiff’s initial complaint about Ms. Manning’s remark and his
removal from the group leader position. But this argument ignores plaintiff’s October 19, 2015
verbal complaint to Ms. Manning in which he alleged that Ms. Manning was targeting him in
The court does agree, however, that plaintiff cannot establish that his July 19, 2015 email to
Ms. Derencius constitutes protected activity. That email does not mention retaliation or race
discrimination or any other possible violation of Title VII. While the email does allege that
plaintiff believed he had been subjected to a “hostile and stressful work environment,” the email
does not indicate that the alleged hostile environment was based on anything other than
defendant’s handling of the Mike Peck situation, including the fact that Mr. Peck was permitted
to keep working at the plant after the incident and, as a result, plaintiff saw Mr. Peck at work
every day. In sum, the “hostile environment” alleged by plaintiff stemmed from what plaintiff
perceived as defendant’s deficient response to a “workplace violence” issue rather than from any
alleged violation of Title VII. The July 19, 2015 email, then, cannot form the basis of plaintiff’s
retaliation for his March 2015 report. That complaint was made less than three weeks prior to
the demotion decision. Because a causal connection may be established through evidence of a
close temporal proximity between the protected conduct and the adverse action, see Fye v. Okla.
Corp. Comm’n, 516 F.3d 1217, 1228 (10th Cir. 2008) (holding that close temporal proximity of
two weeks between protected activity and termination was “alone sufficient to establish a causal
connection”); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.
2006) (holding that close temporal proximity of twenty-four days between plaintiff’s complaint
and his termination was sufficient to establish a causal connection), plaintiff’s evidence is
sufficient to establish the requisite connection.
Because plaintiff has satisfied his burden of establishing a prima facie case of retaliation,
the court turns to plaintiff’s evidence of pretext.10 Viewed in the light most favorable to
plaintiff, the evidence is sufficient to permit a reasonable jury to conclude that defendant’s
proffered reason is unworthy of belief. Ms. Manning did not document any deficiencies with
respect to plaintiff’s employment during the first seven months that he worked under her direct
supervision. During this period, plaintiff’s per diem assignment was extended for additional 12
months and he was selected to assist GM’s Wentzville plant. There is no indication that Ms.
Manning perceived any issues with plaintiff’s performance during this extended period of time.
According to plaintiff’s evidence, he confronted Ms. Manning about her race-based
remark on March 3, 2015.
After that time, Ms. Manning’s documentation of plaintiff’s
performance issues escalated significantly. In fact, while the record reflects only two instances
As noted earlier, defendant has carried its burden of articulating a legitimate reason for its
decision—plaintiff’s performance did not meet the expectations of plant management.
of performance-related documentation between July 2014 and late February 2015, Ms. Manning
documented more than a dozen performance-related issues between the time plaintiff confronted
her about her remark and the decision to return him to a non-supervisory position. A jury, then,
could reasonably conclude that Ms. Manning’s criticisms of plaintiff’s performance escalated in
response to his complaint. In addition, the record reflects that Ms. Manning began to document
issues that did not necessarily bear on plaintiff’s performance, including notations about her
apology to plaintiff for the remark and the fact that she had “apologized earlier”; times when
plaintiff called into work to indicate that he would not be coming to work; plaintiff’s decision to
extend his paternity leave; and plaintiff’s request for a status update on the Peck investigation.
A reasonable jury could conclude, based on the absence of these types of notations prior to
plaintiff’s complaint, that Ms. Manning was “papering” plaintiff’s file in an effort to justify
removing him from the group leader position in light of his complaint about her remark. For the
foregoing reasons, plaintiff’s claim that defendant removed him from the group leader position
in retaliation for plaintiff’s protected activity must be resolved by a jury.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment (doc. 29) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 14th day of November, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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