Williams v. CoreCivic, Inc. et al
Filing
132
MEMORANDUM AND ORDER granting 112 Motion for Summary Judgment. Judgment is to be entered for CoreCivic. Signed by District Judge Holly L. Teeter on 12/31/19. (ctv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH W. WILLIAMS,
Plaintiff,
v.
Case No. 2:17-CV-2310-HLT
CORECIVIC, INC., et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Kenneth Williams sued his former employer, Defendant CoreCivic, Inc., for race
discrimination and harassment under 42 U.S.C. § 1981, and retaliation under Kansas common law
and the False Claims Act. His claims arise from his termination in January 2017.
CoreCivic moves for summary judgment on all claims. Doc. 112. As discussed below, the
Court finds that Williams has not demonstrated that the employment actions he complains of were
taken because of his race, nor has he demonstrated that he engaged in protected conduct sufficient
to state retaliation claims. Further, he has not demonstrated that the stated reason for his
termination was a pretext for discrimination or retaliation, or that he was subjected to a racially
hostile work environment. Accordingly, the Court grants CoreCivic’s motion.
I.
BACKGROUND
CoreCivic runs the Leavenworth Detention Center (“LDC”) in Leavenworth, Kansas. Doc.
119 at 7. Williams, who is African American, worked as a shift supervisor (also referred to as a
captain) at the LDC from April 4, 2011, until he was terminated on February 8, 2017. Doc. 111 at
2. As a shift supervisor, Williams reported to the chief of security, who reported to the assistant
warden, who in turn reported to the warden. Doc. 119 at 8. The chief of security during the relevant
period was Roger Moore, who is white. Id. at 15-16. The assistant warden was Dwight Fondren,
who is African American. Id. at 16. In 2016, Linda Thomas became warden at the LDC. Id.
Thomas is African American. Id. Before that, the warden was Isaac Johnston, who is also African
American. Id.
Williams has worked in the prison setting for 27 years, and, before Thomas became
warden, he never filed any complaints for discrimination or retaliation and had an excellent
employment record. Doc. 131-2 at 1.
A.
Williams’s PSNs
1.
September 2015 PSN
Employee discipline at CoreCivic is documented on Employee Problem Solving Notices
(“PSNs”). Doc. 119 at 11. In 2015, Williams received a PSN for allowing two correctional officers
under his supervision to exceed a 16-hour work day. Doc. 119 at 18. Chief of Unit Management
Kenneth Daugherty issued the 2015 PSN, and Fondren and Johnston approved it. Id. During that
time, it was not uncommon for employees to exceed 16 hours in a work shift due to understaffing.
Doc. 131-2 at 2. But no other shift supervisor was disciplined for allowing this, other than
Williams. Id.
2.
January 2017 PSN
Williams was scheduled to complete some training on September 19-22, 2016. Doc. 119
at 21. On September 22, Williams arrived at work but told trainers that he had to leave for a
previously scheduled appointment. Id. Fondren later spoke with Williams about his absence and
asked him to provide a doctor’s note. Id. at 21-22. Williams later acknowledged that he was aware
of the training on those days, and that he never mentioned his doctor’s appointment before arriving
on September 22 because he intended to attend at least some of the training that day. Id. at 33.
2
Although a PSN was created around the time Williams missed the training, it was not
served or issued to him at the time. Id. at 22-23. On November 8, 2016, Williams filed a grievance
regarding the missed September training and alleged that he had been given a PSN in retaliation
for various activities. Id. But the PSN for the September 22 absence was not finalized and served
by Fondren until January 19, 2017. Id. at 24.
Williams later testified that he filed the November 8 grievance because he had learned that
there was an outstanding PSN on his record, and he believed it prevented him from getting a
promotion. Id. at 22-23. Williams could not recall the promotion he had missed out on, but it was
“maybe” in Phoenix, or at the very least, in the state of Arizona. Id. at 23.
3.
February 2017 Termination
CoreCivic operates the LDC under a contract with the United States Marshals Service
(“USMS”), as well as other state and local government agencies. Id. at 9. CoreCivic’s contract
with the USMS requires CoreCivic to perform in accordance with various standards, including the
Performance-Based Detention Standards. Id. at 9-10. One of those standards, A.10.7., sets forth
40 hours of management and supervision training for supervisors in their first year of employment,
and 24 hours each year thereafter. Doc. 119 at 12-13; Doc. 113-5 at 6.
Failure to comply with the Performance-Based Detention Standards could result in a
reduction of the contract price. Doc. 119 at 10. CoreCivic’s contract with the USMS requires
CoreCivic to “establish an overall written training program for all employees which incorporates,
at a minimum, the training requirements set forth in the . . . Performance-Based Detention
Standards.” Id. at 11-12 (emphasis added). The CoreCivic Learning and Development Policy 4-1
states that management and supervisory staff are to receive at least 24 hours of management
training each year after their first year, referencing Performance-Based Detention Standard A.10.7.
3
Id. at 13-14. In 2012, Williams also signed a document stating that “[r]equired training hours for
those positions are specifically outlined in CCA1 Policy 4-1” and that “unexcused absences for
required training are causes for immediate separation of employment.” Id. at 14.
The Learning and Development Manager at the LDC is Sandra Elliott. Id. at 21. On October
4, 2016, Elliott sent an email to Williams and another CoreCivic employee stating, “Due to
scheduling issues, AW Fondren has directed that you be assigned the 24 hour supervisory training
tract instead of attending the SFLL seminar. You can find these courses in LMS under Assigned
Curriculums. . . . These classes need to be completed prior to December 1st. Let me know if you
need anything.” Id. at 36-37 (ellipses in original). This meant that Williams and the other employee
would have to complete the 24 hours of supervisory training online instead of attending a training
course in person. Williams did not respond to Elliott.2 Id. The LMS system referenced in Elliott’s
email is available 24 hours a day, though Williams contends that employees were not expected to
complete training courses at home or when they were not at work. Id. at 37. Online courses on
LMS could also be paused and returned to at a later time. Id.
Elliott followed up with Williams on November 21, 2016, stating that “you have not
completed any of your Supervisor training tract as notified on October 4th. The deadline to have
these completed is December 1st – this is USMS audit required training and is not optional.
1
CCA, or Corrections Corporation of America, was CoreCivic’s previous name. Doc. 113 at 6 n.1.
2
Williams responds to this fact as “DISPUTED BUT IMMATERIAL” and states that he corresponded with Elliott
as late as December 2016 “regarding attempting to complete the online training on his own before the end of the
year.” Doc. 119 at 37. In support, he cites “See Dep. Ex. 28.” The Court has been unable to locate “Dep. Ex. 28”
in Williams’s exhibits, which are not very well organized. By not pointing to relevant portions of the record,
Williams has failed to dispute this fact. See D. Kan. Rule 56.1(b)(1). The Court did locate a deposition exhibit 28
in CoreCivic’s exhibits. Doc. 113-26 (CoreCivic Exhibit 37). But that exhibit does not reflect any correspondence
between Elliott and Williams. Instead, it reflects emails between Moore and Williams on December 1, 2016,
discussed infra in section I.A.3. To the extent this is the “Dep. Ex. 28” Williams refers to, it does not controvert
the fact that Williams never responded to Elliott’s email assigning him the online training.
4
Please get on this immediately.” Id. at 37-38 (emphasis in original). Williams again did not
respond.3 Id. at 38.
On November 30, 2016, Moore emailed Williams and six other supervisors and reminded
them that they needed to complete their online supervisor training by December 1. Id. at 38. In
response, Williams and Moore had the following exchange:
Moore:
“As a reminder supervisors needs [sic] to complete their online
supervisor training by December 1st. There is no exception there has
been plenty of time given to complete it. In addition I believe Mr.
Lawson still has some online training that needs completed.”
Williams:
“Will be completed by end of the year.”
Moore:
“The suspense date given is December 1st. It was sent out in October
that is when it needs to be done by”
Williams:
“As discussed in your meeting on Tuesday and again tonight before
you left for the day you asked when it will be completed.”
Moore:
“Sir the e-mail makes it clear when it is due. I am done discussing
this.”
Williams:
“You are the one that requested at your meeting when it will on line
computer work would be completed [sic]. Again before you left on
Wednesday you asked me when it was going to be completed and I
again I informed you of the completion date. It is you that followed
up with an e-mail about the same issue.”
Moore:
“Let me clarify this Training Manager Elliott put out a completion
date of December 1st back in October. The email I sent out after the
meeting on Tuesday was to reiterate the required completion date
she set.”
Williams:
“ok”
Doc. 113-26 (CoreCivic Exhibit 37); see also Doc. 119 at 38-40.4
3
See supra note 2.
4
Williams responds to this string of facts about the emails between him and Moore by disputing them in part, not
disputing them in part, and also labeling them immaterial—despite the fact that his failure to complete the
supervisor training was the stated reason for his termination. He cites again to “Dep. Ex. 28,” which, as discussed
above in note 2, the Court believes to be Doc. 113-26 (CoreCivic’s Exhibit 37). That exhibit clearly shows that the
5
On December 28, 2016, Elliott emailed Williams and asked him to complete his required
supervisor training before midnight on December 31, 2016, “as required.” Doc. 119 at 42.
Williams did not respond. Id. at 42-43.5 As of January 1, 2017, Williams had only completed 6 of
the 22 assigned supervisor training courses. Id. at 43. Of the 52 supervisors at the LDC, Williams
was the only one who failed to complete the training.6 Id. at 44-45. On January 3, 2017, Elliott
told Moore and Thomas that Williams had failed to complete his supervisor training, and Williams
was placed on administrative leave. Id. at 46-47.
CoreCivic subsequently investigated Williams’s failure to complete the supervisor
training. Id. at 47. During the investigation, Williams admitted he did not complete the training
assigned by Elliott in October 2016. Id. at 48. On February 8, 2017, CoreCivic terminated
Williams. Id.7 Thomas made the decision based on Williams’s failure to comply with the training
requirements. Id. at 49.8 Thomas was also aware of Williams’s failure to respond to Elliott’s emails
about the training and his email exchange with Moore. Id. at 50.
B.
Williams’s Complaints About LDC Management
Jason Ellis is the Managing Director of Operations for several CoreCivic facilities. Id. at
25. In September 2016, Williams emailed Ellis to set up a time to talk about staff safety and the
correspondence between Williams and Moore is as reflected in CoreCivic’s statement of facts 129-136. See Doc.
119 at 38-40. Accordingly, Williams has come forward with no evidence actually disputing these statements of
fact.
5
Again, Williams cites to “Dep. Ex. 28” to dispute this fact. But as discussed above in note 2, that exhibit does not
reflect any correspondence between Williams and Elliott. Williams also cites to “Audio” and Thomas’s declaration.
But the Court has not been provided with any audio recording, and Thomas’s declaration does not controvert that
Williams did not respond to Elliott’s email. See 121-1 at 5 (¶¶ 21-23).
6
Williams contends this is because he was the only one being discriminated and retaliated against and that his efforts
to complete the training were sabotaged, but he does not otherwise dispute that he was the only one who failed to
complete the training. See Doc. 119 at 44-45.
7
CoreCivic also issued Williams a PSN on February 8, 2017, the day he was terminated, for moving an inmate
without first investigating the safety of the move. Doc. 119 at 34-36.
8
Williams argues this reason was pretext for retaliation but he does not dispute that his failure to complete the
supervisor training was the stated reason for his termination. See Doc. 119 at 49-50.
6
facility “not using sound correctional practices.” Id. At some point after that email, Williams and
Ellis spoke by phone about “a gamut” of issues, including integrity, “unequal treatment of
minorities and the diverse staff members,” inmate safety, staff safety, discipline, shift assignment,
and falsification of documents. Id. at 25-26.
On October 4, 2016, Ellis sent Thomas a list of concerns that had been raised to him, but
he never identified Williams as the source of the concerns. Id. at 27-28. Although Ellis never
identified Williams as the source of the complaints, Thomas suspected that Williams might have
been the one who spoke to Ellis. Id. at 28-29. Williams again emailed Ellis on October 23, alleging
retaliation by Thomas and that leadership at the LDC had gone “from bad to worse.” Id. at 29. But
Williams does not recall if he talked to Ellis again after that second email. Id.
At some point, Williams also discussed “unsafe conditions” at the LDC with someone
named Lieutenant Elmer Grayson, though it is not clear where Grayson works or who he is
affiliated with. Id. Grayson gave Williams a business card for someone with the Bureau of Prisons.
Id. Sometime between September 2016 and December 2016, Williams contacted the BOP
employee and spoke about unsafe conditions at the LDC. Id. at 29-30. Thomas was not aware that
Williams spoke to anyone from BOP. Id. at 30.9 Williams also claims he talked to USMS
employees. Specifically, when Marshals came to drop off inmates, Williams claimed that “we
would just be talking, I discussed items with them.” Id. at 31. There is no evidence Thomas was
aware of these conversations either. Id.10
9
Williams disputes this fact by pointing to evidence regarding Thomas’s suspicion that Williams talked to Ellis and
her belief that he complained generally. But none of the cited exhibits suggest Thomas was aware of Williams’s
conversation with the unknown BOP employee. Thus, the evidence cited by Williams to controvert this claim fails
to meet the substance of the matter asserted. See D. Kan. Rule 56.1(e). The Court again notes that one of the
exhibits Williams cites to—an audio recording—has not been provided to the Court, and thus the Court has not
considered it. See D. Kan. Rule 56.1(d).
10
See supra note 9.
7
On October 24, 2016, Williams called the CoreCivic Ethics Hotline and complained about
an unresolved grievance, denial of a leave request, and the unserved PSN (which was later served
in January 2017). Id. at 32. He also alleged that he believed Thomas was retaliating against him
for contacting Ellis. Id. Williams’s allegations were investigated, but no evidence of retaliation
was found. Id. at 33. Specifically, the actions that Williams challenged as retaliatory were
determined to be legitimate and warranted management responses. Id. The investigation also
concluded that, although Williams had alleged that several supervisors had conspired to retaliate
against him, Williams provided no statements or corroborating evidence. Id. at 33-34.
II.
STANDARD
Summary judgment is appropriate if 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). The moving party
bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that
genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). To carry this burden, the nonmovant “may not rely merely on . . . its own
pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and
citations omitted). “Rather, it must come forward with facts supported by competent evidence.”
Id. The inquiry turns on “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In applying this standard, courts
must view the evidence and all reasonable inferences from it in the light most favorable to the
nonmovant. Matsushita, 475 U.S. at 587.
8
III.
ANALYSIS
Williams has alleged race discrimination and a racially hostile work environment under 42
U.S.C. § 1981, and retaliation under Kansas common law and the False Claims Act. Doc. 111 at
8. The parties dispute whether Williams has preserved a retaliation claim under § 1981. Each of
these claims is discussed in turn.
A.
Race Discrimination – 42 U.S.C. § 1981
Section 1981 prohibits race discrimination in the workplace. Lounds v. Lincare, Inc., 812
F.3d 1208, 1221 (10th Cir. 2015). The same standards apply in § 1981 cases as in cases brought
under other anti-discrimination statues, including the McDonnell Douglas burden-shifting
framework. Payan v. United Parcel Serv., 905 F.3d 1162, 1168 (10th Cir. 2018).11
Under this framework, Williams must first demonstrate a prima facie case of discrimination
by establishing (1) he is a member of a protected class;12 (2) he suffered an adverse employment
action; and (3) that the circumstances give rise to an inference of discrimination. See E.E.O.C. v.
PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). If a plaintiff can make that showing, the burden
shifts to the employer to give a legitimate, non-discriminatory reason for the employment decision.
Payan, 905 F.3d at 1168.13
The burden then shifts back to the plaintiff to show that the stated reason is merely a pretext
for discrimination. Lounds, 812 F.3d at 1221-22. A plaintiff may demonstrate pretext by pointing
11
Williams acknowledges that the McDonnell Douglas framework applies because there is no direct evidence of
discrimination. Doc. 119 at 67-68.
12
The parties do not dispute that Williams is a member of a protected class.
13
CoreCivic argues that Williams’s prima facie case requires him to show he was qualified for the position at issue,
and that his failure to complete the supervisor training left him unqualified for his job. Doc. 113 at 27, 29-30. But
Williams’s failure to complete the training is the stated reason for his termination. CoreCivic cannot rely on it to
defeat Williams’s prima facie case. See E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th
Cir. 2000) (“When an employee’s failure to meet objective, employer-imposed criteria is one of the legitimate,
non-discriminatory reasons advanced by an employer to dispel the inference of discrimination raised by an
employee at the prima facie stage, it cannot also be used to defeat the employee’s prima facie case.”).
9
to facts that a factfinder could rely on to conclude that the stated reason for the adverse employment
action is unworthy of belief. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th
Cir. 2000). This can be done by pointing to “weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions” in the stated reason. PVNF, 487 F.3d at 801 (quoting Green v.
New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005)).
Williams bases his race discrimination claim on two employment actions: the 2015 PSN
and his termination.14 Each is discussed in turn under the standards outlined above.
1.
2015 PSN
The Court notes that Williams received at least three PSNs during his employment. He
received the 2015 PSN for letting workers exceed 16 hours of work in a day. Doc. 119 at 18. He
received a PSN for missing the September 22 training, which was allegedly started in September
2016 but not served until January 2017. Id. at 22-24. And he received a PSN on the day of his
termination in February regarding an incident involving an inmate. Id. at 34-36. Although
Williams argues generally that PSNs are adverse employment actions, he only alleges that one is
the product of race discrimination: the 2015 PSN. Id. at 71-72.
An adverse action results in “a significant change in employment status,” such as
termination, failure to promote, or ineligibility for things like promotions. Aquilino v. Univ. of
Kan., 268 F.3d 930, 934 (10th Cir. 2001). What constitutes an adverse employment action is
liberally construed in the Tenth Circuit, but the analysis is done on a case-by-case basis considering
the unique factors of the particular situation. Id. An adverse employment action is generally one
that has a significant impact on an employee’s status. See Budenz v. Sprint Spectrum, L.P., 230 F.
14
Williams includes a statement in his brief that “placing [Williams] at increased risk of an attack by slandering him
to inmates is also actionable.” Doc. 119 at 70. But this is the extent of the argument. Because Williams does not
support or expand on this allegation, the Court does not consider it.
10
Supp. 2d 1261, 1275 (D. Kan. 2002). This can extend to “decisions that have a demonstrable
impact on future employment opportunities,” “unjustified evaluations and reports,” and
“unfavorable letters of reference to prospective employers.” Id.
But although an adverse employment action can be an action that harms future employment
prospects, it does not extend to “acts that merely have a de minimis impact upon an employee’s
future job opportunities.” Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004) (noting that an
employer’s action must be materially adverse to an employee’s prospects, but that materiality is
not dependent on a tangible employment consequence). Although an employee does not have to
demonstrate that, but for the action he would have gotten a new job, he must “show a likely effect
on future job opportunities.” Id. at 1029. De minimis impact is not enough. Id. at 1033. Likewise,
“[s]peculative harm does not constitute adverse employment action.” Aquilino, 268 F.3d at 936.
Here, CoreCivic has not disputed the general proposition that “PSNs affect an individual’s
ability to be promoted.” Doc. 131-2 at 9.15 But CoreCivic also argues that Williams’s argument
about not receiving promotions because of the 2015 PSN is speculative. The Court agrees on that
point. That claim is based on Williams’s own conclusory and unsupported testimony, and he could
not even recall the name of the facility or the city where he applied. Doc. 119 at 22-23. Although
Williams does not need to show that he would have gotten the job but for the PSN, he must at least
show “a likely effect” on his job prospects. Hillig, 381 F.3d at 1029. He has not done so.
Additionally, Williams argues that it was the unserved PSN (later served in January 2017)
that stopped him from getting a promotion. Doc. 119 at 22-23. But Williams has not put forward
any evidence that the 2015 PSN—the only one he argues was the result of race discrimination—
15
Although CoreCivic does not specifically state that this fact is undisputed, CoreCivic has failed to dispute it, other
than arguing generally that Williams’s claim of missed promotional opportunities is speculative. Doc. 131-2 at 9.
This fails to meet the substance of the asserted fact. See D. Kan. Rule 56.1(e).
11
prevented him from being considered for a promotion. Given this, the Court cannot conclude that
a reasonable jury could find that the 2015 PSN had a “a demonstrable impact on future employment
opportunities” for Williams, see Budenz, 230 F. Supp. 2d at 1275, or had a “likely effect on future
job opportunities,” Hillig, 381 F.3d at 1029. Notably, all Williams has asserted is that PSNs can
affect future promotional opportunities. See Doc. 119 at 70. But the same can be true for any
discipline meted out by an employer. Such speculative or de minimis harm is not sufficient to
establish an adverse employment action.
Even if the Court were to consider the 2015 PSN an adverse employment action, the Court
still concludes that Williams has not established a prima facie case of discrimination with regard
to the 2015 PSN. Williams argues that the 2015 PSN was issued under circumstances that give rise
to an inference of discrimination because white employees engaged in the same conduct and were
not disciplined. Doc. 119 at 71-72. The Court notes that it is uncontroverted that, around the time
Williams was issued the 2015 PSN, it was not uncommon for employees to exceed 16 hours in a
work shift due to staffing issues, and that only Williams was disciplined for allowing this. Doc.
131-2 at 2. But that Williams was the only one who was punished for this conduct does not give
rise to an inference of race discrimination because there are no allegations or facts showing that
Williams was the only African American shift supervisor.
Further, even if white employees engaged in this conduct and were not punished, as
Williams alleges, the Court notes that Williams has not come forward with evidence demonstrating
that those white employees were similarly situated to him. “Individuals are considered ‘similarlysituated’ when they deal with the same supervisor, are subjected to the same standards governing
performance evaluation and discipline, and have engaged in conduct of ‘comparable seriousness.’”
PVNF, 487 F.3d at 801. Williams has not pointed to any evidence that the white employees he
12
identifies were similarly situated to him. Given this, the Court concludes that, even if the 2015
PSN was an adverse employment action, Williams has not demonstrated it was the result of race
discrimination.16
2.
Termination
The parties do not dispute that Williams’s termination constitutes an adverse employment
action. Therefore, to establish his prima facie case of discrimination based on his termination,
Williams must show that the circumstances give rise to an inference of discrimination. Williams
argues his termination was the product of discrimination because Moore and Thomas treated
African Americans poorly, Quinn referred to Williams as “boy, son, and sonny,” and that Elliott
made racially derogatory comments towards African Americans and failed to help him complete
the online supervisor training. Doc. 119 at 72-73.
This is insufficient to raise an inference of discrimination. First, Quinn was not involved
in the decision to terminate Williams, and thus his behavior is irrelevant. The same is true for
Elliott. Although she sent the email regarding the training, she did not make the decision to
terminate Williams. To the extent she “conducted no special training” for Williams, there is no
allegation that Williams ever requested any special training or assistance. To the contrary, it is
undisputed that Williams never even responded to Elliott’s emails about the training. Id. at 37-38.
And in his correspondence with Moore, he never asked for help but instead just stated he would
do it on a different timeline than was set. Id. at 38-40. Finally, Williams’s arguments that Moore
16
Williams appears to rely on dissimilar treatment from his white coworkers to establish both a prima facie case of
disparate treatment and pretext as to the 2015 PSN. Doc. 119 at 71-72, 75. Dissimilar treatment from similarly
situated coworkers is more often used to show that a stated reason for an employment action was pretext for
discrimination. See E.E.O.C. v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 489 (10th Cir. 2006). Here, it is
undisputed that the stated reason for the 2015 PSN was that Williams let workers work more than 16 hours in a
day. Doc. 119 at 18. But for the same reason that Williams’s argument on this point fail to give rise to an inference
of discrimination—i.e., the lack of sufficient evidence of similarly situated coworkers who were treated more
favorably—it likewise fails to show that this stated reason was pretext for discrimination.
13
and Thomas17 mistreated African Americans is vague, circular, conclusory, and entirely
subjective.18 It is insufficient to show a causal link between his race and his termination.
Even assuming Williams could establish a prima facie case of discrimination regarding his
termination based solely on Moore’s and Thomas’s alleged reputation for mistreating African
Americans, CoreCivic has stated that Williams was fired because he failed to complete the
supervisor online training. This is a legitimate, non-discriminatory reason, which shifts the burden
back to Williams to establish that reason was merely pretext for discrimination. See Lounds, 812
F.3d at 1221-22. On this point, Williams’s claim also fails.
As explained above, pretext requires evidence that the stated reason is unworthy of belief.
Kendrick, 220 F.3d at 1230. Courts look for “weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions” in the stated reason. PVNF, 487 F.3d at 801. A plaintiff may also
show pretext by demonstrating that he “was treated differently from other similarly situated,
nonprotected employees who violated work rules of comparable seriousness, provided the
similarly situated employee shares the same supervisor, is subject to the same performance
standards, and otherwise faces comparable relevant employment circumstances.” BCI Coca-Cola,
17
The fact that Thomas is African American does not in and of itself mean that she could not harbor racial animus
towards Williams, who is also African American. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78
(1998) (“[I]n the related context of racial discrimination in the workplace we have rejected any conclusive
presumption that an employer will not discriminate against members of his own race.”); see also Payan, 905 F.3d
at 1170. Williams also argues for application of the cat’s paw theory of liability, seemingly in response to
CoreCivic’s argument that there can be no discrimination where the decisionmakers are the same race as Williams.
Doc. 119 at 69, 73. The cat’s paw theory of liability in employment-discrimination cases refers to situations where
a biased subordinate who does not have the power to make an employment decision uses the actual decisionmaker
“as a dupe in a deliberate scheme to trigger a discriminatory employment action.” BCI Coca-Cola, 450 F.3d at
484. But that theory does not fit Williams’s allegations. Williams specifically argues that Thomas, Moore, Quinn,
and Elliott all bore racial animus towards African Americans, which led to his termination. In other words, under
Williams’s theory, there is no unwitting “dupe.” The cat’s paw theory is inapplicable.
18
Specifically, Williams bases this contention on allegations that Moore was known to be “racist,” and that others
observed Thomas treating white employees more favorably than African Americans. Doc. 119 at 72-73. But these
are little more than subjective conclusions. Elsewhere in his response, Williams alleges that Moore and Quinn
texted each other that Williams and his African American attorney “stick together.” Id. at 62. But as CoreCivic
points out, the texts were sent years after Williams was terminated, and thus have no bearing on events that occurred
leading up to his termination. Doc. 131-2 at 12-13.
14
450 F.3d at 489 (quoting Green, 420 F.3d at 1194) (internal quotations omitted). In a pretext
analysis, courts look at the facts as they appear to the person making the decision. Kendrick, 220
F.3d at 1231.
Williams argues that his termination is pretextual for five reasons: (1) the training he failed
to complete was not “mandatory;” (2) Elliott removed Williams from a training class and failed to
perform one-on-one training sessions with him; (3) his termination was not warranted; (4) the 2015
PSN demonstrates that his supervisors “set out to discriminate against him;” and (5) Moore, Quinn,
Elliott, and Thomas treated African Americans poorly or made racially derogatory statements.
Doc. 119 at 73-75.
First, Williams argues that the training he failed to complete was not “mandatory.” He
bases this on the fact that a document titled Performance Based Standards for Adult Local
Detention Facilities does not label the supervisor training he failed to complete as “mandatory.”
Id. at 73-74. Although it is true that document does not label the supervisor training as
“mandatory,” Williams does not address the undisputed fact that CoreCivic’s contract with the
USMS uses the Performance Based Standards as minimum training requirements, and that
CoreCivic’s policy, which Williams signed, specifically required supervisors to complete the 24
hours of supervisor training. See Doc. 131 at 5; Doc. 119 at 12-14. So, although the Performance
Based Standards for Adult Local Detention Facilities does not deem the training “mandatory,”
CoreCivic clearly did. As noted above, whether the reason for termination is pretext is judged by
the facts as they appeared to the person who made the decision, not the plaintiff. Kendrick, 220
F.3d at 1231; United States ex rel. Coffman v. City of Leavenworth, 303 F. Supp. 3d 1101, 1129
(D. Kan. 2018). Here, it is undisputed that Moore and Elliott both told Williams that he was
required to complete the training, and he failed to do so. Even Fondren, who Williams says
15
“confirmed” that the training was not mandatory, testified that it was still “required,” even if not
“mandatory.” Doc. 125 at 71-73.
Second, Williams argues that Elliott removed him from “the training” and then failed to
provide “special training” with him to ensure he completed it. But Williams misstates the evidence.
It is undisputed that Elliott sent an email to Williams and another employee stating that Fondren
had determined they should complete their training through the online program instead of through
a course. Doc. 119 at 36-37. Williams has pointed to no facts that Elliott prevented Williams from
completing the online training. And it is undisputed that Williams never asked for assistance in
completing the online training. That Williams was not offered “special training,” especially where
he never even asked for it, does not demonstrate pretext.
Third, Williams argues that CoreCivic has set forth no evidence that terminating him “was
warranted.” Doc. 119 at 74. But, to the contrary, CoreCivic has stated that he was terminated
because he failed to complete the assigned training. Williams’s opinion that he should not have
been fired as a result does not demonstrate pretext. Williams’s disagreement notwithstanding, “[a]
company must be allowed to exercise its judgment in determining how severely it will discipline
an employee for different types of conduct.” Kendrick, 220 F.3d at 1233. Likewise, Williams’s
argument that Fondren testified that “there’s a process” and that employees are not usually fired
for one or two incidents is not sufficient to cast doubt on CoreCivic’s decision. See Doc. 119 at
74. Although “evidence that the defendant acted contrary to a written company policy” or
“contrary to an unwritten policy or contrary to company practice” can demonstrate pretext, see
Kendrick, 220 F.3d at 1230, Williams has not pointed to any written policy that CoreCivic violated.
The only unwritten policy or practice reference is Fondren’s vague testimony that “there’s a
process.” Doc. 119 at 74; Doc. 121-6 at 10-11. But Williams does not expound on what that process
16
is or how it was not followed in his case. See Kendrick, 220 F.3d at 1230 (“A plaintiff who wishes
to show that the company acted contrary to an unwritten policy or to company practice often does
so by providing evidence that he was treated differently from other similarly-situated employees
who violated work rules of comparable seriousness.”). Further, Fondren’s testimony made clear
that, although termination is not automatic where an employee fails to complete required training,
it would depend on the circumstances. Doc. 121-6 at 10-11. Here, Williams was assigned the
online training in October, told to complete it by December 1, unilaterally decided he would
complete it by December 31 instead, and then failed to do even that. The Court notes that it is
undisputed that Williams was the only one of 52 shift supervisors who failed to complete the 24
hours of supervisor training. Doc. 119 at 44-45. Given this, the Court cannot conclude (nor could
a reasonable jury) that Fondren’s testimony establishes that CoreCivic acted contrary to its policies
when it terminated Williams as a result, or that the reason for Williams’s termination is unworthy
of belief or a pretext for discrimination.
Fourth, Williams argues that his termination was pretext for discrimination because the
2015 PSN demonstrates that his supervisors “set out to discriminate against him.” Doc. 119 at 75.
But Williams has not established that the 2015 PSN was discriminatory. And it is undisputed that
the 2015 PSN was issued and approved by Daughtry, Fondren, and Johnston—three individuals
who were not involved in the decision to terminate Williams. See id. at 18. Accordingly, the 2015
PSN in no way demonstrates that Williams’s termination over a year later for different conduct
was pretext for discrimination.
Fifth, Williams again argues that Moore, Quinn, Elliott, and Thomas either had a history
of treating African Americans poorly, or else made racially derogatory statements. But as
17
discussed above, these arguments are vague and conclusory and do not otherwise demonstrate that
the stated reason for Williams’s termination is unworthy of belief.
Accordingly, Williams has not come forward with any evidence of pretext. CoreCivic is
therefore entitled to summary judgment on Williams’s claim of race discrimination under § 1981.
B.
Hostile Work Environment – 42 U.S.C. § 1981
Section 1981 also permits a plaintiff to bring a claim for a racially hostile work
environment. Lounds, 812 F.3d at 1221. To establish a hostile work environment, a plaintiff must
show (1) he is a member of a protected class, (2) he was subjected to harassment, (3) the
harassment was based on race, and (4) the severity or pervasiveness of the harassment altered a
term, condition, or privilege of employment and created an abusive working environment. Id. at
1222; see also Payan, 905 F.3d at 1170. “[T]o avoid summary judgment at the prima facie stage,
a plaintiff must present evidence that creates a genuine dispute of material fact as to whether ‘the
workplace is permeated with discriminatory intimidation, ridicule, and insult[] that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment.’” Lounds, 812 F.3d at 1222
(quoting Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 851 (10th Cir. 2007)).
Anti-discrimination laws do “not establish a general civility code for the workplace.” Id.
(quoting Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012)). Accordingly,
the work environment must be both objectively and subjectively hostile. Id. at 1222-23; Payan,
905 F.3d at 1171. “[I]t is not enough that a particular plaintiff deems the work environment hostile;
it must also be of the character that it would be deemed hostile by a reasonable employee under
the same or similar circumstances.” Lounds, 812 F.3d at 1222.
Williams argues he was subjected to a racially hostile work environment in the following
ways: (1) he was issued the 2015 PSN while other white employees were not disciplined for similar
18
conduct; (2) Moore treated African Americans “poorly”; (3) Quinn referred to Williams as “boy,
son, and sonny,” even though Williams was almost 60 years old; (4) Williams reported
discriminatory conduct by Moore and Quinn but his complaints were not investigated; (5) Elliott
made racially derogatory comments about African Americans and did not conduct special training
for Williams; (6) Thomas treated white employees more favorably than African American
employees; and (7) Williams was blamed and disciplined for a fight between inmates, made to do
his training online, and then fired for not completing it. Doc. 119 at 78-80.
Based on this, Williams has failed to establish a prima facie case of hostile work
environment because he has failed to point to evidence of racial harassment so severe or pervasive
that it altered the terms of his employment or created an abusive working environment. In
particular, his allegations that Moore treated African Americans “poorly” and that Thomas treated
white employees more favorably are entirely subjective, to say nothing of conclusory, which is not
sufficient to survive summary judgment on this claim. See Lounds, 812 F.3d at 1222-23. Equally
vague is Williams’s allegation that he reported Moore and Quinn for discriminatory conduct and
that it was not investigated. Nor has Williams established that the discipline he received, including
his termination, was because of his race. See supra section III.A. And as discussed above, there is
no evidence that Williams ever requested any special training or assistance in completing the
training that he was assigned. Therefore, Elliott’s failure to spontaneously schedule a special
training session just for Williams is not indicative of a hostile work environment.
That leaves Williams’s allegations that Quinn referred to him as “boy, son, and sonny,”
and that Elliott made racially derogatory statements.19 Even accepting these allegations as true,
19
Williams alleges that Elliott remarked about not voting for a black president and that having a black warden leave
the LDC would cause increased stress for black employees. Doc. 131-2 at 20. But there are no allegations that
Elliott made any such statements to Williams.
19
with all inferences drawn in Williams’s favor—and even assuming the alleged comments were
racially motivated—these “few isolated incidents of racial enmity” are not sufficient to establish a
hostile work environment. Lounds, 812 F.3d at 1223 (quoting Witt v. Roadway Express, 136 F.3d
1424, 1432 (10th Cir. 1998)). “Instead of sporadic racial slurs, there must be a steady barrage of
opprobrious racial comments.” Id. (quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)).
Williams has not alleged any facts rising to that level. Accordingly, CoreCivic is entitled to
summary judgment on Williams’s racially hostile work environment claim.
C.
Retaliation – Kansas Common Law
Kansas is historically an at-will employment state, meaning that employers can typically
fire employees at any time and for any reason. Campbell v. Husky Hogs, L.L.C., 255 P.3d 1, 3-4
(Kan. 2011). But there are exceptions, including for whistleblowing. Specifically, Kansas allows
the “common-law tort of retaliatory discharge . . . when it is necessary to protect a strongly held
state public policy from being undermined.” Id. at 5; Heckman v. Zurich Holding Co. of America,
2007 WL 677607, at *4 (D. Kan. 2007).
To assert a claim for retaliatory discharge based on whistleblowing, “an employee has the
burden of proving by clear and convincing evidence, under the facts of the case, a reasonably
prudent person would have concluded the employee’s co-worker or employer was engaged in
activities in violation of rules, regulations, or the law pertaining to public health, safety, and the
general welfare.” Palmer v. Brown, 752 P.2d 685, 690 (Kan. 1988). The employer must know of
the employee’s reporting such violation before termination and must have made the termination
decision in retaliation for the report. Id. Finally, the whistleblowing must have been done out of a
good faith concern and not for a malicious purpose. Id.
20
Retaliatory discharge claims under Kansas law are analyzed under the same McDonnell
Douglas burden-shifting framework that applies to federal employment claims. Foster v.
Alliedsignal, Inc., 293 F.3d 1187, 1193 (10th Cir. 2002). That is, Williams must establish a prima
facie case of retaliatory discharge (as outlined above), and if CoreCivic can articulate a legitimate,
non-discriminatory reason for his termination, Williams must point to specific facts that create a
triable issue as to whether the stated reason is a pretext for retaliation. Id. at 1194.
Williams gives relatively short shrift to his initial burden of proving a prima facie case of
retaliatory discharge under Kansas law. He simply asserts that he complained about conduct at the
LDC that “is illegal under Kansas law,” citing K.S.A. § 44-636(a), including “safety issues, staff
being assaulted, and many other unsound correctional practices,” “unsafe conditions at
Leavenworth,” and “the falsification of documents and ‘a gamut of issues at the facility.’” Doc.
119 at 82-83. And then he was fired three months later. Id.
The Court finds that Williams has failed to establish a prima facie case of retaliatory
discharge. To overcome summary judgment, Williams must point to facts that demonstrate that “a
reasonably prudent person would have concluded the employee’s co-worker or employer was
engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety,
and the general welfare,” and that CoreCivic knew he was reporting such violations. Palmer, 752
P.2d at 690. But Williams has not pointed to any specific conduct of CoreCivic that would
constitute a violation of a rule, regulation, or law pertaining to public health, safety, or the general
welfare.
Instead, he merely alleges that he spoke to certain individuals about “safety issues” or
“unsound correctional practices” or “a gamut of issues” that are “illegal under Kansas law.”20 But
20
The Kansas law Williams cites to is K.S.A. § 44-636(a). That provision allows the secretary of labor to enter “any
factory or mill, workshop, private works, public works or state agency or institution, mercantile establishment,
21
none of those facts specifically identify any misconduct of CoreCivic. See Diebold v. Sprint/United
Mgmt. Co., 2002 WL 1071923, at *3-*4 (D. Kan. 2002) (noting that whistleblowing cases require
plaintiffs to “clearly identif[y] the action which allegedly violated the law and precipitated the
whistleblowing” and dismissing the plaintiff’s complaint because it did “not identify which action
(or failure to act) caused her to believe that Sprint’s conduct was unlawful”); Palmer v. Pentair,
2019 WL 3239350, at *8 (D. Kan. 2019) (noting that a retaliatory discharge claim for violation of
public policy “requires plaintiff to clearly allege a violation of specific and definite rules,
regulations, or laws beyond a mere feeling of wrongdoing”); Goodman v. Wesley Med. Ctr., L.L.C.,
78 P.3d 817, 822-23 (Kan. 2003) (“It would be both troublesome and unsettling to the state of the
law if we were to allow a retaliatory discharge claim to be based on a personal opinion of
wrongdoing.”).21
Most of these facts cited by Williams reflect only his vague and generalized complaints
about operation of the LDC. See Doc. 119 at 26-34 (for example, noting that he and Ellis discussed
discipline, shift assignments, promotions, the “treatment in general” of minorities, the integrity of
the company “not being followed,” and safety concerns). But he offers nothing concrete to show
that the conduct he complained about was based on more than his own opinion of wrongdoing.
See Goodman, 78 P.3d at 822-23.
laundry or any other place of business where labor is or is intended to be performed for any purpose . . . to examine
into the methods of protection from danger to employees and the sanitary conditions in and around such buildings
and places and to keep a record thereof of such inspection.” K.S.A. § 44-636(a). If certain safety or unsanitary
conditions are found, the secretary will notify the owner in writing and may order corrective measures. Id. Although
this provision may permit the secretary of labor to order corrective measures for certain conduct, it does not
necessarily establish the illegality of any particular conduct.
21
CoreCivic initially raised this as a deficiency in an earlier motion to dismiss, and that argument was rejected
because Williams had included enough allegations in the complaint about CoreCivic’s objectionable conduct to
plausibly state a common law retaliatory discharge claim. Doc. 50 at 5-7. But that order noted that “though more
specificity about safety violations would be helpful to identify the issues, that is a matter is best left for discovery.”
Id. at 7. Despite this, Williams’s arguments seem to have gotten more vague instead of more specific.
22
His most specific allegations were that inmates with conflicts were being placed in the
same unit, that an inmate assaulted an officer, and that “the logs of supervisors making rounds and
stuff was not accurately accounted for.” Doc. 119 at 26-27. But these allegations are still highly
generalized and do not establish a violation of any rule, regulation, or law pertaining to public
health, safety, or the general welfare that would warrant submission of his retaliatory discharge
claim to a jury.22
Even if Williams had shown a prima facie case of retaliatory discharge under Kansas law,
his case would still fail because CoreCivic has asserted a legitimate, non-discriminatory reason for
his termination—that he failed to complete his assigned supervisor training—and Williams has
failed to demonstrate that this explanation was a pretext for retaliation. Williams’s arguments that
his termination was a pretext for retaliation are largely the same as they are in his discrimination
claim—that the training was not “mandatory,” that Elliott did not help him complete the training,
and that his termination was “not warranted.” For the same reasons discussed above, those
arguments do not demonstrate pretext.
Williams does add the argument that the timing of his termination is suspect because it
occurred in January 2017 following his complaints in September and October 2016.23 Doc. 119 at
77. Temporal proximity is one factor that can lead to a finding of pretext, but it is not enough
standing alone. Lounds, 812 F.3d at 1236 n.10. Unless the proximity is very close, it must be
combined with other evidence to suggest that the stated reason for the adverse employment action
22
Likewise, Williams’s complaint to the CoreCivic Ethics Hotline about an unresolved grievance and denial of a
time-off request do not establish a violation of any rule, regulation, or law pertaining to public health, safety, or
the general welfare. See Doc. 119 at 32.
23
Williams talked to Ellis sometime before October 4, 2016. He was not placed on administrative leave until January
3, 2017—three months later. The date of William’s other complaints is not provided, except his October 24, 2016
call to the CoreCivic Ethics hotline, which as noted in note 22, was not about any rule, regulation, or law pertaining
to public health, safety, or the general welfare.
23
is unworthy of belief. Id.; see also Hysten v. Burlington N. Santa Fe Ry. Co., 296 F.3d 1177, 118384 (10th Cir. 2002) (noting that a three-month period between the protected conduct and
termination is not sufficient to raise an inference of retaliation). Here, Williams has no other
evidence that the stated reason for his termination is unworthy of belief. Given that, the few months
between his complaint and his termination is insufficient, standing alone, to demonstrate that the
reason for his termination was pretext for retaliation.
D.
Retaliation – False Claims Act, 31 U.S.C. § 3730
Williams asserts a retaliation claim under the False Claims Act (“FCA”). Doc. 111 at 8.
The FCA creates civil liability for anyone who knowingly presents false claims to the United States
for payments, or who makes a false statement material to a false claim for payment. See generally
31 U.S.C. §§ 3729-3733. The United States can bring a suit on its own under the FCA, or a private
person (known as a relator or a whistleblower) may sue on behalf of the United States in what is
known in a qui tam action. United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729, 736
(10th Cir. 2019); see also 31 U.S.C. § 3730(a)-(b). To protect relators and whistleblowers, the
FCA has an anti-retaliation provision. See 31 U.S.C. § 3730(h). That provision protects anyone
who takes actions “in furtherance of an action under this section or other efforts to stop 1 or more
violations of this subchapter.” Id.
To state a claim for retaliation under the FCA, a plaintiff must prove that “(1) she engaged
in protected activity, (2) the defendant ‘had been put on notice’ of that protected activity, and (3)
the defendant retaliated against the plaintiff ‘because of’ that activity.” KeyPoint Gov’t Sols., 923
F.3d at 764 (quoting McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 704 (10th Cir. 2012)).
“Protected activity” for purposes of the FCA means “employees who take steps ‘in furtherance of’
either a qui tam claim or ‘other efforts to stop 1 or more violations’ of the [FCA].” Id. at 738
24
(quoting 31 U.S.C. § 3730(h)(1)). Thus, although a person does not need to pursue a qui tam action
or be part of a government-initiated case, they must be acting to stop a violation of the FCA. See
id. at 765 (“[W]histleblowers who lawfully try to stop one or more violations of the Act are
protected, without regard to whether their conduct advances a private or government lawsuit under
the Act.”).
Williams claims that he has established a prima facie case of retaliation under the FCA
because he complained to Ellis “about safety issues, staff being assaulted, and many other unsound
correctional practices” as well as “the falsification of documents 24 and ‘a gamut of issues at the
facility.’” Doc. 119 at 80. But the FCA’s retaliation provision is not a generic law against
retaliation. It is specific to the FCA. The protected activity must have some nexus to that law. See
KeyPoint Gov’t Sols., 923 F.3d at 767. Williams has not shown that his generic complaints reflect
any action “‘in furtherance of’ either a qui tam claim or ‘other efforts to stop 1 or more violations’
of the [FCA].” Id. at 738 (quoting 31 U.S.C. § 3730(h)(1)). Accordingly, there is no genuine issue
of material fact that could establish a prima facie claim of retaliation under the FCA.25 CoreCivic
is entitled to summary judgment on this claim.26
24
Williams testified at his deposition that “falsification of documents” was one of the “gamut of issues” that he
discussed with Ellis. Doc. 119 at 25-26. But there are no factual allegations about what this refers to, nor is there
any allegation that any falsified document was related to a false claim for payment from the United States.
25
Obviously, if Williams did not engage in protected activity under the FCA, his supervisors could not have been on
notice of the same. Likewise, although the Tenth Circuit does not appear to have directly addressed the issue,
several circuit courts, as well as some cases in the District of Kansas, have held that the McDonnell Douglas
framework applies in FCA retaliation cases. Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st
Cir. 2012) (“The McDonnell Douglas approach fits comfortably with the test that courts generally apply to
retaliation claims under section 3730(h)(1).”); United States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1241
(D.C. Cir. 2012) (noting that the First Circuit applies the McDonnell Douglas framework to FCA retaliation claims
and adopting that approach); Coffman, 303 F. Supp. 3d at 1122 (applying McDonnell Douglas test to FCA
retaliation claim); McCurdy v. Cowley Cty. Developmental Servs., Inc., 2014 WL 298680, at *1 (D. Kan. 2014)
(same). Therefore, even if Williams could point to facts establishing a prima face case of FCA retaliation, his claim
would still fail under the pretext analysis as discussed throughout.
26
CoreCivic alternatively argues that Williams’s retaliatory discharge claim under Kansas law is precluded by his
retaliation claim under the FCA. Doc. 113 at 46-47; see also Coffman, 303 F. Supp. 3d at 1130 (stating that a
common law claim is precluded where there are “adequate alternative remedies” that redress the same harm). But
as discussed above, CoreCivic also argues—correctly—that Williams’s FCA retaliation claim fails because
25
E.
Retaliation – 42 U.S.C. § 1981
Finally, the parties dispute whether Williams has preserved a retaliation claim under
§ 1981. In the pretrial order, Williams lists his legal claims as:
1. Race discrimination in violation of 42 U.S.C. § 1981.
2. Racial harassment (hostile work environment) in violation of 42 U.S.C. § 1981.
3. Retaliatory discharge in violation of Kansas common law.
4. Retaliation under the False Claims Act, 31 U.S.C. § 3729 et seq.
Doc. 111 at 8. He did not list a retaliation claim under § 1981. CoreCivic did not address a § 1981
retaliation claim in its motion because it was not included in the pretrial order and CoreCivic
believes it was waived. Doc. 131 at 10-12. But in response to the summary-judgment motion,
Williams states that the pretrial order lists § 1981 as the governing law of the case and contends
that he “reported discriminatory conduct, harassment, hostile work environment” and other issues
and was retaliated against as a result. According to Williams, therefore, CoreCivic was on notice
that Williams was asserting a § 1981 retaliation claim. Doc. 119 at 76 n.2. The Court disagrees.
The only retaliation claims Williams specifically listed in the pretrial order are claims under
Kansas common law and the FCA. He omitted any retaliation claim under § 1981. Doc. 111 at 8.
The pretrial order does state that § 1981 governs this case, but it also states that Kansas common
law and the FCA apply as well. Id. at 2. Generic factual allegations of retaliation do not put
CoreCivic on notice that there is an additional § 1981 retaliation claim at issue, especially where
Williams has not alleged that he pursued any FCA violations, which would mean that he does not have an adequate
alternative remedy in the FCA. Regardless, the Court has found that Williams has not come forward with facts to
establish a prima face case of retaliation under either Kansas common law or the FCA, and even if he had, he has
not demonstrated that the stated reason for his termination was pretextual. Thus, the Court need not decide whether
his FCA retaliation claim precludes his state law claim.
26
other retaliation claims under Kansas common law and the FCA were specifically listed under
Williams’s legal claims and a § 1981 retaliation claim was not.
The pretrial order controls the scope of this case. Id. at 1 (“This pretrial order supersedes
all pleadings and controls the subsequent course of this case.”). Claims and allegations not
included in the pretrial order are waived and are no longer part of this case. See Koch v. Koch
Indus., Inc., 179 F.R.D. 591, 596 (D. Kan. 1998). Because Williams did not assert a § 1981
retaliation claim in the pretrial order, he has waived that claim.
Even if Williams had preserved a § 1981 retaliation claim, however, the claim would still
fail because his arguments about pretext are the same as in his § 1981 discrimination claim and his
retaliatory discharge claim under Kansas law. See supra sections III.A. and III.C. The Court has
already concluded that Williams has not demonstrated a causal connection between any protected
activity and his termination, and he has not demonstrated that the stated reason for his termination
was pretext. A § 1981 retaliation claim would likewise fail for the same reasons.
IV.
CONCLUSION
THE COURT THEREFORE ORDERS that CoreCivic’s Motion for Summary Judgment
(Doc. 112) is GRANTED. Judgment is to be entered for CoreCivic.
IT IS SO ORDERED.
Dated: December 31, 2019
/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE
27
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