Redmon v. General Motors LLC, GMVM Fairfax Assembly Plant et al

Filing 71

MEMORANDUM AND ORDER granting 61 defendants General Motors Company and General Motors LLC, GMVM Fairfax Assembly Plant's Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 06/06/2019. (tvn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAMARCUS REDMON,
Plaintiff,
Case No. 18-2087-DDC-KGG
v.
GENERAL MOTORS COMPANY, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on defendants General Motors Company and General
Motors LLC, GMVM Fairfax Assembly Plant’s Motion for Summary Judgment (Doc. 61).
Plaintiff Damarcus Redmon has filed a Response (Doc. 68). And, defendants have filed a Reply
(Doc. 70). For reasons explained below, the court grants defendants’ summary judgment
motion.
I.

Uncontroverted Facts
The following facts are stipulated by the parties in the Pretrial Order (Doc. 58) or are

uncontroverted for purposes of the parties’ summary judgment motions. The Pretrial Order
provides that all exhibits marked or used during depositions and all documents produced during
discovery meet the evidentiary standards for foundation and authenticity. Doc. 58 at 6.
Defendants General Motors Company and General Motors LLC (collectively, “GM”) are
corporate or limited liability companies who manufacture automobiles across the United States
and abroad, including at the GM Fairfax Assembly Plant (“Fairfax Plant”) in Kansas City,
Kansas.

A. Defendants’ Policies
The GM Fairfax Plant is a unionized facility, and a local chapter of the United Auto
Workers union (“UAW”) represents a bargaining unit, which includes production and
maintenance workers. Plaintiff was a member of the bargaining unit and was covered by the
collective bargaining agreement between GM and the UAW. GM has Equal Employment
Opportunity and Anti-Discrimination workplace policies that prohibit discrimination and
harassment in the workplace based on protected characteristics (including race, sex, and gender)
and retaliation for complaints of discrimination based on race, sex, gender, and other protected
characteristics.
1. Attendance policies
GM provides new employees, including plaintiff (a temporary employee), with an
orientation spanning multiple days. Plaintiff received a copy of GM’s orientation packet.
During this orientation program, GM reviewed its workplace policies, described above. The
orientation packet that plaintiff received contained language from GM’s Equal Employment
Opportunity and Anti-Harassment policies, which plaintiff testified he understood. Doc. 68-5 at
23–25 (Redmon Dep. 21:1–23:15). During orientation, plaintiff received and acknowledged his
receipt of GM’s Employee Attendance and Shop Rule Policy. That policy provides that GM
“may terminate . . . employment for unsatisfactory performance and disregard of GM’s
expectations [including] any unexcused absences, violation of Shop Rules or Plant/GM
Policies.” Doc. 62-5 at 2. During orientation, GM reviewed its attendance policy, and plaintiff
understood that absences, without proper notification to management, constituted grounds for
termination. GM informed plaintiff, and plaintiff confirmed he understood, that attendance was
mandatory for all temporary and flex employees.

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GM also informed plaintiff, and plaintiff confirmed he understood, that he was required
to call in any non-preapproved absences at least 30 minutes before his scheduled shift start time,
and that calling in his absence did not mean the absence was approved. “If [a] . . . temporary
employee calls in and state[s] that they are going to be absent and they give a date out in the
future, they are not required to call in every day going forward. However, they are still required
to call in 30 minutes prior to the start of their shift.” Doc. 68-3 at 22 (Tutt Dep. 79:2–7). If a
temporary employee misses two days of work, GM looks to the “specifics of the case”—such as
the employee implying or notifying anyone that he planned to quit—to determine whether to
release the employee. Id. at 23 (Tutt Dep. 81:24–82:22). “If the employee has called in stating
that they are sick or injured, we will wait to see if we hear back from the employee. Until they
have contacted GM to advise that they are actually medically unable to work, again, we will look
at all of the information that we currently have to make a determination.” Id. at 23 (Tutt Dep.
82:16–22). This information can include medical documentation.
2. Policies about employee complaints
If GM receives a complaint—either verbal or written—from an employee, GM’s
management reviews the complaint with the complainant, and then investigates the allegations in
the complaint to decide whether to take disciplinary measures. GM asks the complainant and
witnesses to write statements. GM also asks the complainant to identify any witnesses and may
check to see who worked in the area where the incident occurred. GM recommends that
employees conducting investigations note the steps they took in the investigation. The
investigation is documented in both the complainant’s file and the file of the employee named in
the complaint.

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3. Policies applicable to temporary employees
GM hires temporary employees to replace regular employees who are not working.
Temporary employees cannot take a sick leave of absence; instead, they are placed on medical
leave. Temporary employees receive opportunities to convert to permanent employees based on
their employment start date. GM’s policies for temporary employees provide that a temporary
employee who violates a minor shop rule will receive a written warning or reprimand for their
first and second violations, provided that the employee was hired at least 90 days before the
violation. Employees may request a union representative when they receive a warning. These
minor infractions are shop rule violations that would not result in a “time off” penalty for a
regular employee. Id. (Tutt Dep. 81:4–6).
Temporary employees do not have seniority, but those who work at least 90 days also are
eligible for 24 hours of unpaid time off, subject to management’s approval. But, temporary
employees do not have access to a process they can use to request positions based on their
“restrictions and limitations,” as defined by a doctor. Doc. 68-2 at 45 (Hawkins Dep. 43:1–4).
GM allows for “favorable discharge” of temporary employees who cannot work for medical
reasons. These favorable discharges allow employees to return to their positions once they are
healthy enough to work. Doc. 68-10 at 11 (Heintzelman Dep. 9:10–18). GM also enters into
“last chance agreements” with some employees—these agreements allow terminated employees
to “return to work under . . . certain stipulations.” Id. at 9–10 (Heintzelman Dep. 7:21–8:13).
Sheila Heintzelman, a GM staff nurse, testified that she has observed GM enter into last chance
agreements with former employees who had drug abuse issues and attendance problems. Id.
(Heintzelman Dep. 8:7–13).

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B. Plaintiff’s Employment
Plaintiff Damarcus Redmon is male and African-American. In September 2015, he was
hired as a five-days-per-week temporary employee at the GM Fairfax Plant. He started working
at the plant on September 28, 2015, as an assembly line worker on the second shift, which starts
at 2:30 p.m. The Fairfax Plant’s assembly line has a moving conveyor belt where employees
place parts onto a vehicle and inspect it as it moves along the belt. Employees working at the
Fairfax Plant must be able to walk and stand to perform their jobs, regardless of their assigned
department.
Plaintiff began working at GM in the Chassis Department on the “show-line.” This
arrangement required him to assemble the gas cap and the fiber glass cover for hoods. He was
reassigned to the “motor-line” before June 2016 and remained on that line until he was fired in
November 2016. His duties on the motor-line included operating a crane. The crane
manipulated a machine, which connected the transmission to the motor in the vehicles
manufactured by the machine. Plaintiff worked in a three-man team, and his job required him to
use the crane to pick up the transmission, guide it to the machine, and drop it into a motor that
already had been placed on the machine. After dropping the transmission into place, plaintiff
pushed the transmission and motor together so the next person on the assembly line could bolt
them to one another. Plaintiff also worked on the wire harness team. His job there involved
taking wire harnesses out of their delivery boxes, placing them on motors, and using a small drill
to secure the wire in prefabricated holes on the motors. Plaintiff did no heavy lifting, and he and
other GM employees sat down during the machine’s cycle.

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C. Plaintiff’s Complaints
1. Plaintiff’s complaint about Austin Cornelius
On October 8, 2015, plaintiff made a complaint to Labor Relations Representative
Michael Poirier against his co-worker, Austin Cornelius. Mr. Cornelius had no supervisory or
managerial responsibilities, and he worked in the same department but in a different group, team,
and shift from plaintiff. Plaintiff reported that Mr. Cornelius (1) threw an item at the back of
plaintiff’s head; (2) called plaintiff a “little bitch”; (3) grabbed and twisted plaintiff’s nipples;
and (4) poked and grabbed plaintiff on the side and lower back. Also, plaintiff asserted that Mr.
Cornelius said the music plaintiff listened to made Mr. Cornelius’s ears bleed and that plaintiff
looked like a gay rapper named “Baby.” Doc. 68 at 11–12.
Plaintiff identified co-worker Josepha Lara-Smith as a witness to Mr. Cornelius’s
conduct. Mr. Poirier requested a statement from plaintiff and Ms. Lara-Smith about plaintiff’s
allegations. Mr. Poirier also spoke with Mr. Cornelius. Mr. Cornelius admitted hitting plaintiff
in the back of the head with a cap—though he asserted it was accidental—and admitted to
poking plaintiff. But, he denied the other allegations. Plaintiff did not know why Mr. Cornelius
threw an object at the back of his head, but he testified that it was not sexual. Doc. 68-5 at 47–48
(Redmon Dep. 45:14–46:16). Plaintiff believes that Mr. Cornelius and other GM employees
sexually harassed and racially discriminated against him in violation of GM’s policies. Doc. 684 at 3. Ms. Lara-Smith told Mr. Poirier that she witnessed an object hit plaintiff. Specifically,
Ms. Lara-Smith told Mr. Poirier that she saw Mr. Cornelius throw an object, but that Mr.
Cornelius was playing with another coworker and he missed the coworker, hitting Mr. Redmon.
She denied any knowledge about the other allegations. Ms. Lara-Smith also told Mr. Poirier that
she did not personally witness Mr. Cornelius touch plaintiff or witness plaintiff “touch or do
anything with” Mr. Cornelius. Doc. 68 at 12.
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Mr. Poirier issued Mr. Cornelius an “Employee Contact” (a form of counseling that is not
formal discipline) and reminded Mr. Cornelius that GM does not tolerate harassment. Mr.
Poirier warned Mr. Cornelius that violating the Anti-Harassment policy, or other unsatisfactory
job performance, could result in disciplinary action, up to and including termination. Mr. Poirier
wrote in an email to GM’s corporate representative, Ca-Sandra Tutt, that he did not “spend too
much time” on the investigation and reviewed an Employee Contact document in another
employee’s file involving Mr. Cornelius. Id. at 29. GM placed all the information about
plaintiff’s complaint against Mr. Cornelius in the employee folders of plaintiff and Mr.
Cornelius.
After complaining about Mr. Cornelius’s conduct, plaintiff testified that he was “pulled”
into the office of another employee, Al Patinel, at least twice. Doc. 68-5 at 96 (Redmon Dep.
96:18–22). Mr. Patinel said plaintiff hadn’t put certain parts on cars moving through the
assembly line that plaintiff “kn[ew] for a fact [he] was putting on.” Id. at 101 (Redmon Dep.
99:2–10). Plaintiff testified that he didn’t know why he had been called into Mr. Patinel’s office,
though he thought it “had something to do with” his complaint. Id. at 98 (Redmon Dep. 98:5–7).
Plaintiff testified that Mr. Patinel “threaten[ed]” plaintiff’s “seniority job”—which plaintiff
described as an easier job typically performed by employees with seniority. Id. at 99 (Redmon
Dep. 99:11–22).
Within two business days of plaintiff’s complaint against Mr. Cornelius, Mr. Poirier
moved Mr. Cornelius from the Chassis Department, “directly by” plaintiff, to the Trim
Department. Doc. 62-3 at 31 (Redmon Dep. 76:8–15). After Mr. Cornelius was transferred,
plaintiff had no further discussions or physical contact with Mr. Cornelius. Mr. Cornelius also
made no gestures at plaintiff. But, plaintiff asserted, Mr. Cornelius often visited his mother at

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the motor-line where plaintiff was moved. Plaintiff also stated that Mr. Cornelius “create[d] an
uncomfortable and unwanted work environment by sitting directly across from [plaintiff] at
lunch as to intimidate [him] for reporting the sexual harassment.” Doc. 68-4 at 3 (Redmon Aff.
¶ 16).
Plaintiff did not report any incidents of sexual or racial discrimination or harassment
between November 2015 and his birthday in May 2016.
2. Plaintiff’s complaint about Mayra Hernandez
On June 2, 2016, plaintiff reported to Mr. Poirier that he had received two penis-shaped
cakes from his co-workers for his birthday on May 26, 2016. Plaintiff posted pictures of the two
cakes on his Facebook page on May 26. With the picture, he posted the following text: “The
reason why I can’t wear basketball shorts or sweats to work, they will call me Big D at work, and
here’s my birthday cake. LOL.” Doc. 62 at 16 (first citing Doc. 62-3 at 39–40, (Redmon Dep.
109:18–110:6), 41–42 (121:25–122:2); then citing Doc. 67-2 at 4–5 (Facebook images)). The
cakes were frosted differently: one had light chocolate frosting, and the other had dark chocolate
frosting. They were two feet long and one foot wide, with blueberries. Plaintiff reported that
someone told him the blueberries either represented African-American pubic hair or herpes.
Other employees witnessed plaintiff receiving the cakes during working hours.
Plaintiff’s supervisor, Joe Heany, was present when plaintiff received the two cakes.
Plaintiff reported to Mr. Heany that he was uncomfortable with the cakes and that they were
unwelcome and offensive. Doc. 68-4 at 3 (Redmon Aff. ¶ 17), 5 (Redmon Aff. ¶ 28). But,
plaintiff testified, Mr. Heany took no action after plaintiff made this report. GM’s corporate
representative, Ms. Tutt, testified that the cakes could be considered offensive. And, GM

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admitted that images and depictions of penises are inappropriate for the GM work environment.
Doc. 68-11 at 3.
Plaintiff informed Mr. Poirier that the cakes were baked by his co-worker, Mayra
Hernandez, and he explained in his complaint why the conduct was unwelcome and offensive to
him. Ms. Hernandez had no supervisory or managerial responsibilities. Mr. Poirier spoke with
Ms. Hernandez, who denied baking the cakes. Ms. Hernandez expressed surprise to Mr. Poirier
that plaintiff had complained about the cakes. She reported that plaintiff had laughed at the
cakes and showed no indication he was offended by them. Doc. 62-6 at 4 (Poirier Decl. ¶ 14).
But, plaintiff stated in an affidavit that he “never welcomed or encouraged sexually explicit
conversations at work and was highly offended when [he] received the cakes.” Doc. 68-4 at 3
(Redmon Aff. ¶ 18). GM did not interview anyone other than Ms. Hernandez to discern who had
made the cakes. GM’s corporate representative, Ms. Tutt, testified that no documentation
existed to indicate Mr. Poirier had completed an investigation summary. GM did not review
plaintiff’s complaint with him, nor did GM ask plaintiff to disclose any witnesses of the incident.
Mr. Poirier issued Ms. Hernandez an Employee Contact—which is not formal
discipline—where he reminded her that GM does not tolerate harassment. Specifically, Mr.
Poirier warned Ms. Hernandez that violating the Anti-Harassment policy, or other unsatisfactory
job performance, could result in disciplinary action up to and including termination. Doc. 62-6
at 4 (Poirier Decl. ¶ 16). Ms. Hernandez was not moved to another area of the plant. Also, she
was not suspended or terminated.
Plaintiff was able to perform the physical tasks of his job but testified that the workplace
was a “stressful environment” because he was around people who had touched him in the wrong
way or thought of him as a “sexual object.” Doc. 68-5 at 144 (Redmon Dep. 142:6–16).

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Plaintiff also testified that other employees commented and joked about plaintiff’s penis, its size,
and its relationship to his African-American heritage.1
D. Plaintiff’s Layoff
Beginning in June 2016, plaintiff was absent from work at the GM Fairfax Plant. He
testified that he called the absentee line number provided to him from June 2016 until September
2016 to inform GM that he would be absent from work because he was sick. GM has no records
of the Central Time call-in log from June 2016 until September 2016. On June 14, 2016,
plaintiff was laid off from the GM Fairfax Plant, because he had not come to work. On July 1,
2016, plaintiff returned to GM’s Medical Department for a “Return to Work Evaluation,” but he
was not reinstated. Doc. 68 at 35.
On September 26, 2016, plaintiff again returned to the GM Fairfax Plant and presented
medical documentation for his absence, which he was told to bring when he returned to work.
During his fitness for duty examination, plaintiff informed the GM Fairfax Plant Medical
Department that he had been absent because of pulmonary embolisms and had received
treatment for his condition. Nurse Sheila Heintzelman examined plaintiff and concluded he was
fit to return to work without restrictions. Also on September 26, 2016, plaintiff completed a
“Return to Work Questionnaire.” The Questionnaire reflected that plaintiff could return to fullduty work from “[d]isability or [c]ompensable [l]eave.” Id. at 35. The discharge was removed
from plaintiff’s record and was coded as a layoff because plaintiff had been unable to perform
his job.
Accordingly, plaintiff was recalled from layoff effective on September 26, 2016. On
September 29, 2016, plaintiff was offered, and accepted, the opportunity to convert from a five-

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Nothing in the summary judgment record suggests that Mr. Redmon made any internal complaints about this
behavior.

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days-per-week temporary employee to a two-days-per-week temporary employee, effective
October 31, 2016. This conversion opportunity was offered to other five-day temporary
employees at the GM Fairfax Plant.
E. Plaintiff’s Termination
Beginning on October 10, 2016, plaintiff again was absent from work at the GM Fairfax
Plant. Between October 10, 2016, and November 2, 2016, plaintiff did not contact the UAW
Committeeperson, the GM Fairfax Plant Labor Relations/Employment offices, or the GM
Fairfax Plant Medical Department about his absences. Plaintiff’s employment was terminated
from the GM Fairfax Plant on November 2, 2016.
In November 2016, plaintiff spoke with Dwayne Hawkins, his UAW Committeeperson,
about his termination. Plaintiff requested a leave of absence from GM but was ineligible because
he was a temporary employee. Mr. Hawkins spoke with GM Fairfax Plant Personnel Director
Rita Derencius about the termination. Plaintiff was offered a position as a two-days-per-week
temporary employee with a new hire date for purposes of his seniority.
Plaintiff failed to report to work on November 28, 2016, rejecting the offer of a position
as a two-day temporary employee. GM represented that plaintiff was terminated because of
“[u]nexcused absences from work and failure to properly report.” Id. at 36. GM also
represented that plaintiff had not received management approval or notified management of his
absences at least 30 minutes before his shift start time. But, plaintiff asserts that he followed
GM’s policy and reported his absences in October and November 2016. He asserts that GM has
“no way to ascertain precisely when [p]laintiff called his absences in” because GM’s
timekeeping system doesn’t record calls to report absences when they begin—instead, the system
records calls when they end. Id. at 16. Also, plaintiff asserts that GM’s policy does not require

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employees to call in every day once they have reported an absence with a future return date. GM
asserted that plaintiff was given a verbal warning, but plaintiff was given no disciplinary verbal,
written, or final warning about his attendance. Plaintiff also recorded a conversation with GM
nurse Sheila Heintzelman, during which Ms. Heintzelman told plaintiff that he received a
“favorable discharge”—meaning that he was “not terminated for disciplinary reasons.” Id. at 17
(citing Doc. 68-10 at 14–15 (Heintzelman Dep. 12:17–13:3)). Ms. Heintzelman also authored a
nurse’s note stating that plaintiff was “terminated for unknown reasons.” Id. (citing Doc. 68-10
at 36 (Heintzelman Dep. 34:4–9)).
F. Plaintiff’s Disability
During plaintiff’s employment with GM, he was diagnosed with pulmonary embolisms,
deep vein thrombosis, and a tumor on his lung. He also was diagnosed with cardiomyopathy,
disseminate distoplasmosis, and hypercoagulable state, beginning in June 2016. One of
plaintiff’s treating physicians, Lawrence Dall, opined that at least from October 2016 until at
least December 16, 2016, plaintiff was “not in a position to work at the assembly line.” Doc. 689 at 14 (Dall Dep. 12:18–23). Mr. Dall explained that he assumed the assembly line work was a
“very active type of physical labor,” and that he didn’t have any personal knowledge of the
assembly line jobs, or any jobs, at GM. Id. at 15 (Dall Dep. 13:1–12). He testified that, at the
time of Mr. Dall’s deposition, plaintiff had shown clinical improvement and could go back to
work.
On November 17, 2016, plaintiff presented Jane Stark, a doctor working in GM’s
Medical Department, with a note from the Mayo Clinic. The note asserted that plaintiff needed
to “refrain from strenuous activities.” Doc. 68 at 37. Ms. Stark interpreted this restriction to
mean plaintiff only could perform sedentary work. GM did not have a record from plaintiff’s

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doctor restricting him to sedentary work. But, GM’s doctor recommended returning plaintiff to
sedentary, self-paced work with the ability to sit down as needed throughout the day. GM does
not have sedentary positions available to non-seniority-based employees. Doc. 68-11 at 7.
The Social Security Administration (“SSA”) determined that plaintiff was disabled,
effective November 30, 2016. That determination established that plaintiff was disabled within
two weeks of his rejection of GM’s offer to rehire him as a two-days-per-week temporary
employee. Since then, plaintiff has not returned to the SSA to have the disability determination
reversed or modified. He participates in an SSA program called “Right to Work,” under which
his disability status is subject to modification. Doc. 68-5 (Redmon Dep. 257:22–258:3), 320
(Redmon Dep. 318:4–23). On December 14, 2016, the Kansas Department of Labor completed
an Able and Available Statement of Medical Condition for plaintiff, reflecting that he was able to
perform “light duty work that did not include strenuous activity on his heart, lungs[,] or chest.”
Doc. 68 at 34. On December 16, 2016, plaintiff represented to the Kansas Department of Labor
that he was unable to work. Plaintiff applied for three jobs in December 2016 and then, on
November 5, 2018, plaintiff began training at Alliance Data. There, he receives $15 per hour.
G. Equal Employment Opportunity Commission Charges of Discrimination
On November 18, 2016, more than 1802 days after his complaint about Mr. Cornelius,
plaintiff filed his first Charge of Discrimination with the Equal Employment Opportunity

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The relevant statute, 42 U.S.C. § 2000e-5, provides the following:
A charge under this section shall be filed within one hundred and eighty days after the alleged
unlawful employment practice occurred and notice of the charge (including the date, place and
circumstances of the alleged unlawful employment practice) shall be served upon the person against
whom such charge is made within ten days thereafter, except that in a case of an unlawful
employment practice with respect to which the person aggrieved has initially instituted proceedings
with a State or local agency . . . such charge shall be filed by or on behalf of the person aggrieved
within three hundred days after the alleged unlawful employment practice occurred, or within thirty
days after receiving notice that the State or local agency has terminated the proceedings under the

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Commission (“EEOC”). In that Charge, plaintiff checked boxes indicating that race, color, sex,
and disability all were bases for the alleged discrimination, but he did not check the box for
retaliation. And, on March 22, 2017, plaintiff filed an Amended Charge of Discrimination with
the EEOC. He again checked the form’s boxes for race, color, sex, and disability, but not
retaliation. In his Amended Charge, plaintiff explained that he had “received a favorable
termination and was eligible for rehire,” but his “termination based on [his] disability caused
[him] to lose [his] full time temp status and the benefits therein.” Doc. 1-1 at 1.
In their Answer to plaintiff’s Complaint, defendants asserted that plaintiff had not
exhausted his administrative remedies for his retaliation claim.
Around April 24, 2017, plaintiff filed a Charge of Discrimination with the Kansas Human
Rights Commission. In this Charge, plaintiff checked boxes for race, color, sex, and disability as
the bases for his Charge.
II.

Legal Standard
A. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that “no genuine

dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). When it applies this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if

State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission
with the State or local agency.
42 U.S.C. § 2000e-5(e)(1).

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under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving
party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. To shoulder this burden, “the facts must be identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler,
144 F.3d at 670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th
Cir. 1992)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
B. McDonnell Douglas Framework
A plaintiff advancing a claim of discrimination or retaliation may prove his claim with
direct or indirect (circumstantial) evidence. Twigg v. Hawker Beechcraft Corp., 659 F.3d 987,

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1000 (10th Cir. 2011). Where the plaintiff relies on circumstantial evidence, the McDonnell
Douglas burden-shifting framework applies. Adamson v. Multi Cmty. Diversified Servs., Inc.,
514 F.3d 1136, 1145 (10th Cir. 2008); see also Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1226 (10th Cir. 2000) (“[T]he three-part McDonnell Douglas burden-shifting analysis is
limited to the summary judgment context.”). Under this framework, the plaintiff has an initial
burden to make out a prima facie case. Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003).
In its most basic form, a prima facie case requires the plaintiff to establish that: (1) he “is a
member of a protected class”; (2) he “suffered an adverse employment action”; and (3) “the
challenged action occurred under circumstances giving rise to an inference of discrimination.”
Bennett v. Windstream Commc’ns., Inc., 792 F.3d 1261, 1266 (10th Cir. 2015). Depending on
the nature of discrimination and adverse employment action alleged, hybrids of the McDonnell
Douglas framework apply. If the plaintiff sustains his initial burden, “the burden shifts to the
employer to offer a legitimate nondiscriminatory reason for the challenged action.” Selenke v.
Med. Imaging of Colo., 248 F.3d 1249, 1259 (10th Cir. 2001). If the defendant advances a
legitimate non-discriminatory reason, then the burden shifts back to the plaintiff to prove the
reason “is merely a pretext for unlawful discrimination.” Id.
III.

Analysis
Plaintiff has asserted several claims against defendants: (1) race discrimination and

harassment under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–2000e-17, and 42 U.S.C.
§ 1981; (2) color discrimination and harassment under Title VII of the Civil Rights Act; (3)
retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the Americans with
Disabilities Act Amendments Act of 2008 (“ADAAA”), 42 U.S.C. § 12101–12213; (4) sex
discrimination and harassment under Title VII of the Civil Rights Act; and (5) disability

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discrimination and harassment under the ADAAA. See Doc. 58 at 16 (Pretrial Order). The court
discusses each claim in the following sections.
A. Plaintiff’s Race and Color Discrimination Claims
In Counts I and II of his Complaint, plaintiff makes claims for race and color
discrimination under Title VII and § 1981. Doc. 1 at 10–13 (Compl. ¶¶ 65–79). It is unlawful
under Title VII for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms of
conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e2(a). Section 1981 of Title 42, meanwhile, provides a cause of action when an employee can
establish that his employer engaged in “intentional discrimination” on the basis of race. Durham
v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994). Where a plaintiff relies on circumstantial
evidence to support a claim of discrimination under either Title VII or § 1981, his claim is
subject to the McDonnell Douglas burden-shifting framework. See id. (applying framework to
§ 1981 claim); Fischer v. Forestwood Co., 525 F.3d 972, 978 (10th Cir. 2008) (applying
framework in Title VII setting).
Plaintiff must carry the burden of proving the following essential elements for his Title
VII and § 1981 claims: “(1) [plaintiff] belongs to a protected class; (2) he was qualified for his
job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his
discharge.” Kendrick, 220 F.3d at 1229; see also Doc. 58 at 16 (Pretrial Order). “By
establishing a prima facie case, the plaintiff in a Title VII action creates a rebuttable
‘presumption that the employer unlawfully discriminated against’ him.” U.S. Postal Bd. of
Governors v. Aikens, 460 U.S. 711, 714 (1983). “The critical prima facie inquiry in all cases is
whether the plaintiff has demonstrated that the adverse employment action occurred ‘under

17

circumstances which give rise to an inference of unlawful discrimination.’” Kendrick, 220 F.3d
at 1227. “[T]ermination of a qualified minority employee raises the rebuttable inference of
discrimination in every case in which the position is not eliminated.” Perry v. Woodward, 199
F.3d 1126, 1140 (10th Cir. 1999); see also Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th
Cir. 2012) (“Plaintiff can also show he was terminated and replaced in a job he was qualified for,
‘because it is facially illogical to randomly fire an otherwise qualified employee and thereby
incur the considerable expense and loss of productivity associated with hiring and training a
replacement.’” (quoting Perry, 199 F.3d at 1140)).
If plaintiff proves the foregoing elements, defendants must come forward with a
legitimate non-discriminatory reason for discharging plaintiff. If provided, the “‘full burden of
persuasion’” then shifts back to plaintiff to show defendants’ proffered reason is pretextual.
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007) (“At this point
[in the burden-shifting framework], the presumption of discrimination created by the plaintiff’s
prima facie case ‘simply drops out of the picture.’”); see also Doc. 58 at 16–17 (Pretrial Order).
“A plaintiff may [discharge his burden to] show pretext by demonstrating the ‘proffered
reason is factually false,’ or that ‘discrimination was a primary factor in the employer’s
decision.’” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (quoting
Tabor v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013)). “This is often accomplished ‘by
revealing weakness, implausibilities, inconsistencies, incoherences, or contradictions in the
employer’s proffered reason, such that a reasonable fact finder could deem the employer’s reason
unworthy of credence.’” Id. (quoting Tabor, 703 F.3d at 1216). When evaluating a plaintiff’s
showing of pretext, a court “may not second guess the business judgment of the employer.” Id.
(quoting Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017)). “Evidence that the

18

employer ‘should not have made the termination decision—for example, that the employer was
mistaken or used poor business judgment—is not sufficient to show that the employer’s
explanation is unworthy of credibility.’” Id. at 970–71 (quoting Swackhammer, 493 F.3d at
1169–70). And, a court must examine the facts supporting the adverse employment action “as
they appear[ed] to the person making the decision,” asking whether the decisionmaker “honestly
believed those reasons and acted in good faith upon those beliefs.” Id. (first quoting EEOC v.
C.R. England, Inc., 644 F.3d 1028, 1044 (10th Cir. 2011); then quoting Swackhammer, 493 F.3d
at 1170).
1. Parties’ Arguments
Defendants assert that plaintiff neither can make a prima facie case of discrimination nor
establish pretext. First, defendants argue, plaintiff cannot satisfy the second element of his
claim: he was qualified for his job. Specifically, defendants direct the court to the Social
Security Administration’s determination that plaintiff was disabled effective November 30, 2016.
And, on December 16, 2016, plaintiff represented to the Kansas Department of Labor that he was
unable to work, defendants assert. Plaintiff’s note from the Mayo Clinic informed defendants’
Medical Department—defendants argue—that plaintiff needed to “refrain from strenuous
activities,” which defendants interpreted to mean plaintiff required sedentary work. Doc. 62 at
23. Because defendants had no sedentary positions available to non-seniority-based employees,
they contend plaintiff wasn’t qualified to perform any job at the Fairfax Plant. Second,
defendants argue, they consistently have articulated a legitimate, non-discriminatory reason for
terminating plaintiff’s employment: plaintiff’s violation of attendance rules. And, third,
defendants assert that plaintiff cannot establish a triable issue of pretext. Defendants contend

19

their offer of continued employment “undermine[s] any suggestion that [p]laintiff’s race or color
had anything to do with [defendants’] decision.” Id. at 27.
Plaintiff responds, asserting that he was qualified to work on the assembly line even with
his disability and, in any event, has carried his burden to establish a triable issue pretext.
Plaintiff asserts that the summary judgment facts show he did no “heavy lifting” in his position
on the assembly line, and that he was seated as the machine he worked with “ran its course.”
Doc. 68 at 42. He also argues that defendants’ non-discriminatory reason for firing him is
pretextual for several reasons. First, he contends, defendants’ reason for terminating his
employment is false. Defendants have no way to ascertain whether plaintiff followed procedures
for calling in his absences, he argues, and they cannot show that plaintiff failed to comply with
their call-in policy. Second, plaintiff asserts, defendants provide inconsistent reasons for
terminating his employment, explaining at different times that plaintiff both was and was not
fired for violating defendants’ shop rules. Third, plaintiff argues that defendants failed to follow
their own policies because they failed to give him a warning about his attendance and failed to
consider his calls to the absentee phone line when making their decision to terminate his
employment. Fourth, plaintiff compares himself to Mr. Cornelius, arguing that defendants did
not discipline Mr. Cornelius even after he had admitted violating defendants’ rules when he
threw an object at plaintiff.
2. Has plaintiff established a prima facie claim of race and color
discrimination?
The court first addresses whether plaintiff has made a prima facie race and color
discrimination claim. Defendants do not contest that plaintiff belongs to a protected class as an
African American man, that he was discharged from his job, and that his job was not eliminated
after defendants fired plaintiff. See Kendrick, 220 F.3d at 1229.
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Defendants focus their argument, instead, on whether plaintiff was qualified to perform
his assembly line job. Viewing the summary judgment facts in plaintiff’s favor, a reasonable
jury could conclude that plaintiff was qualified for his position despite his reported disability. A
doctor from defendants’ Medical Department, Jane Stark, concluded that plaintiff required
sedentary work after she received a note from plaintiff’s treating doctor at the Mayo Clinic. The
note explained that plaintiff needed to refrain from strenuous activity. But, a jury reasonably
could determine that plaintiff could have done his assembly line job—which didn’t require him
to lift heavy objects and allowed him to sit regularly—even with his reported disability. Mr.
Dall, another treating physician, opined that plaintiff “became unable to work on October 10th,
2016.” Doc. 68-9 at 11 (Dall Dep. 9:4–11). Mr. Dall also testified that plaintiff was “not in a
position to work at the assembly line,” but he assumed that assembly line work was a “very
active type of physical labor.” Id. at 14 (Dall Dep. 12:18–13:5).
Based on the summary judgment facts describing plaintiff’s exact role on the assembly
line, a reasonable jury could conclude that plaintiff still was qualified for his position because
Mr. Dall had no personal knowledge of the assembly line positions at the Fairfax Plant. See id.
at 15 (Dall Dep. 13:1–12). Viewing all facts and inferences in plaintiff’s favor, at the least a fact
question exists whether plaintiff was qualified for his position. The court thus moves to the next
step in the McDonnell Douglas framework: determining whether defendants have articulated a
legitimate, non-discriminatory reason for terminating plaintiff’s employment.
3. Have defendants provided a legitimate non-discriminatory reason for
terminating plaintiff’s employment?
Defendants assert that they terminated plaintiff’s employment because he violated their
attendance policy. Plaintiff argues this reason merely is a pretext, contrived to hide the real
reason, i.e., discrimination based on race and color, defendants fired him. Plaintiff directs the
21

court to inconsistencies in defendants’ rationale for firing him, defendants’ failure to adhere to
their policies, and defendants’ treatment of Mr. Cornelius—an employee, plaintiff asserts, who is
similarly situated to him. But, plaintiff has adduced no admissible evidence demonstrating that
defendants “didn’t honestly believe” their reason for firing him—i.e., his unexcused absences.
Robinson v. St. John Med. Ctr., Inc., 645 F. App’x 644, 649 (10th Cir. 2016). The summary
judgment facts establish that defendants could “terminate . . . employment for unsatisfactory
performance and disregard of GM’s expectations or any unexcused absences, violation of Shop
Rules or Plant/GM Policies.” Doc. 62-5 at 2. Defendants’ policies explain the call-in procedure
for reporting absences, but caution that calling to report an absence does not mean the absence is
approved.
Even though defendants didn’t provide plaintiff a warning before terminating his
employment and defendants’ corporate representative testified that plaintiff wasn’t fired for
violating defendants’ shop rules, these facts alone cannot negate defendants’ proffered reason for
firing plaintiff. A plaintiff can show pretext “with evidence that the defendant acted contrary to
a written company policy prescribing the action to be taken by the defendant under the
circumstances.” Kendrick, 220 F.3d at 1230. But, “[t]he mere fact that an employer failed to
follow its own internal procedures does not necessarily suggest that the employer was motivated
by illegal discriminatory intent or that the substantive reasons given by the employer for its
employment decision were pretextual.” Hysten v. Burlington N. Santa Fe Ry. Co., 415 F. App’x
897, 905–06 (10th Cir. 2011) (quoting Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.
1995)) (affirming district court’s grant of summary judgment for employer). “[T]he standard for
establishing pretext requires evidence of not just any procedural shortfall, but of a ‘disturbing
procedural irregularity,’ often exemplified by an employer’s ‘falsifying or manipulating of

22

relevant criteria.’” Cooper v. Wal-Mart Stores, Inc., 296 F. App’x 686, 696 (10th Cir. 2008)
(first quoting Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1122 (10th Cir. 2007); then quoting
Plotke v. White, 405 F.3d 1092, 1104 (10th Cir. 2005)) (internal citations omitted) (affirming
district court’s grant of summary judgment for employer).
For example, in Hysten, the Tenth Circuit explained that the defendant violated an
internal policy that “says nothing about the procedural protocol for terminating employees.” 415
F. App’x at 906. The plaintiff had “offer[ed] no evidence of any connection between
[defendant’s] breach of [its internal policy] and [defendant’s] decision to terminate [plaintiff’s]
employment.” Id. The plaintiff also made no “attempt to explain how this procedural violation
. . . [was] probative of discriminatory intent.” Id. Plaintiff here has failed in the same way. He
hasn’t provided any evidence linking defendants’ failure to provide a warning about his absences
to a discriminatory motive or to defendants’ decision to terminate plaintiff’s employment.
Plaintiff also hasn’t adduced evidence tending to show that defendants’ policy of issuing
warnings “prescribe[d]” the “protocol” for terminating employment. See id.
Defendants’ categorization of unexcused absences as a violation of shop rules in one
instance and not a violation in others also does not render their proffered explanation “unworthy
of belief.” DePaula, 859 F.3d at 970; see also Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303,
1310–12 (10th Cir. 2005) (affirming district court’s grant of summary judgment for employer
and explaining that “the mere fact that the [defendant] has offered different explanations for its
decision does not create a genuine question of pretext”). Plaintiff has not demonstrated that
defendants’ underlying proffered reason changed over the course of this litigation.
Finally, any discrepancy between defendants’ response to Mr. Cornelius’s admission that
he violated shop rules and their response to plaintiff’s unexcused absences will not negate

23

defendants’ purported non-discriminatory reason for firing plaintiff. “Individuals are considered
‘similarly situated’ 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.’” Lollis v. City of Eufaula, 249 F. App’x 20, 27 (10th Cir. 2007) (first quoting
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (analyzing whether employee
was “similarly situated” in Title VII race discrimination case); then citing Salguero v. City of
Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004) (applying this “similarly situated” test to §§ 1981
and 1983 claims); then citing Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir.1991)
(“[T]he elements of a plaintiff’s case are the same . . . whether that case is brought under §§ 1981
or 1983 or Title VII.”)). Here, plaintiff cannot question defendants’ business judgment to
terminate plaintiff’s employment by comparing it to defendants’ response to Mr. Cornelius’s
infraction. Plaintiff hasn’t demonstrated how defendants’ varying responses to different policy
violations calls into question defendants’ non-discriminatory reason for firing plaintiff. In other
words, plaintiff hasn’t satisfied the Tenth Circuit’s standard for showing that his unexcused
absences are comparable to Mr. Cornelius’s violations in the workplace.
Also, plaintiff hasn’t asserted facts showing a discriminatory motive factored into
defendants’ decision to terminate his employment, let alone served as a primary influence. See
DePaula, 859 F.3d at 970. The “pretext inquiry is a motive inquiry,” Sydney v. ConMed Elec.
Surgery, 275 F. App’x 748, 753 (10th Cir. 2008), and plaintiff hasn’t adduced sufficient
evidence to create a triable question whether defendants’ motive either was driven primarily by a
discriminatory factor or that defendants’ proffered reason “‘is unworthy of credence.’” Taylor v.
Cramer, Inc., No. 01-2228-GTV, 2002 WL 1461972, at *4 (D. Kan. July 3, 2002) (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Viewed in the light most favorable

24

to plaintiff, a reasonable jury could not assess the summary judgment facts and conclude
defendants’ articulated reason for firing plaintiff—his unexcused absences—is “factually false.”
DePaula, 859 F.3d at 970. Likewise, a reasonable jury could not conclude that discrimination
was a primary factor in that decision. Id. Because plaintiff has failed to shoulder his “‘full
burden of persuasion,’” Swackhammer, 493 F.3d at 1167 (quoting Bryant v. Farmers Ins. Exch.,
432 F.3d 1114, 1125 (10th Cir. 2005)), to demonstrate a triable question that defendants’
proffered reason is pretextual, the court grants defendants’ summary judgment motion against
plaintiff’s claim of race and color discrimination under Title VII and § 1981.
B. Plaintiff’s Sex Discrimination Claims
Plaintiff also makes a sex discrimination claim under Title VII based on his
employment’s termination. Doc. 1 at 21–24 (Compl. ¶¶ 121–35). Like Title VII claims of race
discrimination, Title VII sex discrimination claims require a plaintiff to demonstrate the
following elements: “(1) [plaintiff] belongs to a protected class; (2) was qualified for her
position; (3) was discharged; and (4) her position was not eliminated after her discharge.”
Adamson, 514 F.3d at 1149–50. If a plaintiff doesn’t belong to a protected class, a “reverse
discrimination [claim] requires a determination that defendant is the ‘unusual’ employer that
discriminates against the traditionally favored class of men, rather than women[.] . . . [A male
plaintiff’s] burden is higher, requiring proof of ‘background circumstances’ tending to establish
that fact or, in the alternative, that but for his status of being a man, he would not have been
terminated.” Id. at 1141 (quoting Notari v. Denver Water Dep’t, 971 F.2d 585, 591 (10th Cir.
1992)). The McDonnell Douglas burden-shifting framework described above applies to Title
VII claims of sex discrimination that rely on circumstantial evidence. Id. at 1145. But, when a
plaintiff opts to show that, but for his sex, the defendant would not have fired him, the plaintiff

25

“does not benefit from the presumption of intentional discrimination.” Id. Instead, “the plaintiff
must ‘allege and produce evidence to support specific facts that are sufficient to support a
reasonable inference that but for plaintiff’s status, the challenged decision would not have
occurred.’” Id. (quoting Notari, 971 F.2d at 590).
1. Parties’ Arguments
Defendants argue that plaintiff has asserted no background circumstances establishing
that defendants either discriminated against men or against plaintiff because he is a man.
Because of his disability, plaintiff was not qualified to work on the assembly line, defendants
contend. Defendants fired plaintiff because of his violation of defendants’ policies, they assert.
And, defendants reiterate their arguments opposing plaintiff’s race discrimination claim to
explain that their rationale for firing plaintiff was not pretextual.
Plaintiff, in turn, argues that defendants’ disparate handling of his complaints against
Mr. Cornelius and Ms. Hernandez establish that “male employees are treated differently than
female employees.” Doc. 68 at 46. Plaintiff also reiterates the arguments he made to support his
Title VII race discrimination claims, asserting that he was qualified for his assembly line position
and that defendants’ proffered reason for firing him was pretextual.
2. Has plaintiff established a prima facie claim for sex discrimination?
Plaintiff fails to carry the heavier burden of establishing background circumstances that
tend to establish defendants discriminate against men. Plaintiff doesn’t compare defendants’
actions involving him to actions involving other employees. Instead, he compares defendants’
treatment of two other employees, Mr. Cornelius and Ms. Hernandez. The summary judgment
facts show that the procedures defendants followed when investigating plaintiff’s complaints
differed between Mr. Cornelius and Ms. Hernandez. Specifically, defendants interviewed

26

plaintiff, Mr. Cornelius, and a third employee identified as a witness when responding to
plaintiff’s complaint against Mr. Cornelius. But, when responding to plaintiff’s complaint
against Ms. Hernandez, defendants didn’t interview anyone other than Ms. Hernandez, produce
documents containing an investigation summary, or review plaintiff’s complaint with him. Mr.
Cornelius was moved away from plaintiff’s work area and received a non-disciplinary Employee
Contact form that defendants placed in his file. Ms. Hernandez merely received an Employee
Contact form in her file.
But, the incidents that prompted plaintiff to complain separately about Mr. Cornelius and
Ms. Hernandez aren’t comparable with one another. Mr. Cornelius admitted to throwing an
object at plaintiff, and plaintiff also complained that Mr. Cornelius had said offensive things to
him and touched him in unwelcome ways. But, plaintiff complained that Ms. Hernandez had
baked and presented him with two offensive cakes. Viewed in plaintiff’s favor, a jury could not
reasonably conclude that plaintiff has adduced sufficient facts tending to show that defendants
treated Mr. Cornelius and Ms. Hernandez differently because of their genders. See Cash v.
Boeing Co., 76 F. Supp. 2d 1229, 1233–34 (D. Kan. 1999) (considering “alleged disparate
treatment accorded other workers” that plaintiff referenced to satisfy the background
circumstances test and concluding that the incidents were “so distinct from [plaintiff’s] situation
that they cannot serve as any evidence of discriminatory intent”); Ewing v. TWA Rest. Grp., Inc.,
No. 08-2024-CM, 2009 WL 648924, at *3 (D. Kan. Mar. 12, 2009) (concluding that plaintiff had
provided no evidence of “background circumstances tending to indicate defendant discriminates
against the majority” because, “[a]side from the fact that plaintiff was white and the manager . . .
was black, plaintiff provides no evidence that defendant discriminated against other white
employees”). Plaintiff has adduced facts showing only that defendants responded differently to

27

Mr. Cornelius and Ms. Hernandez’s different policy violations. This assertion, alone, is
insufficient to demonstrate that defendants are “the ‘unusual’ employer that discriminates against
the traditionally favored class of men.” Adamson, 514 F.3d at 1141 (quoting Notari, 971 F.2d at
591).
The court concludes that plaintiff has not established a prima facie case of sex
discrimination under Title VII. The court thus grants defendants’ summary judgment motion
against plaintiff’s sex discrimination claim.
C. Plaintiff’s Harassment Claims
Next, plaintiff has asserted claims based on harassment and a hostile work environment
under Title VII, § 1981, and the ADAAA. Doc. 1 at 10–16 (Compl. ¶¶ 65–94), 21–24 (Compl.
¶¶ 121–35), 25–28 (Compl. ¶¶ 145–60). These claims require him to show the following
elements: “(1) [plaintiff] is a member of a protected group; (2) [he] was subject to unwelcome
harassment; (3) the harassment was based on [race, sex, or disability]; and (4) [due to the
harassment’s severity or pervasiveness], the harassment altered a term, condition, or privilege of
the plaintiff’s employment and created an abusive working environment.” Lounds v. Lincare,
Inc., 812 F.3d 1208, 1222 (10th Cir. 2015) (first three alterations added) (evaluating racial
harassment claim); see also Dick v. Phone Directories Co., 397 F.3d 1256, 1262–63 (10th Cir.
2005) (evaluating sexual harassment claim); Lanman v. Johnson Cty., Kan., 393 F.3d 1151, 1155
(10th Cir. 2004) (holding that “hostile work environment claim[s] can be brought under the
ADA”).
Plaintiff first concedes that he has not exhausted his administrative remedies for his
claims of harassment against Mr. Cornelius. Doc. 68 at 48–49. Instead, he focuses on two other
incidents: (1) the alleged harassment by Ms. Hernandez based on race, color, and sex; and (2)

28

defendants’ offer of employment in November 2016, which, he argues, “constitutes both
harassment and retaliation” based on his disability because plaintiff’s new start date “would
preclude [him] from the terms of employment he earned from his previous duration of
employment.” Id. at 51. When analyzing plaintiff’s harassment claims, the court thus focuses
on these two incidents.
1. Has plaintiff established a prima facie claim of harassment based on race,
color, and sex?
Defendants could be liable on plaintiff’s sexual harassment claim under two different
theories: “(1) vicarious liability; or (2) negligence.” Chavez-Acosta v. Sw. Cheese Co., LLC,
610 F. App’x 722, 729 (10th Cir. 2015) (citations omitted). “Generally, the vicarious liability
theory applies only when the harasser is a supervisor, while the negligence theory applies when
the harasser is a co-worker.” Id. (citing Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726,
755 (10th Cir. 2014)); see also Tademy v. Union Pac. Corp., 614 F.3d 1132, 1155 (10th Cir.
2008) (concluding that employer could be held liable on plaintiff’s § 1981 racial harassment
claim because it “failed to ‘discharge its obligation by taking appropriate remedial or preventive
action’” (quoting Adler, 144 F.3d at 676)); Faragalla v. Douglas Cty. Sch. Dist. RE 1, 411 F.
App’x 140, 151–52 (10th Cir. 2011) (applying negligence standard to Title VII and § 1981
hostile work environment claims). Plaintiff’s claim here contends in part that Ms. Hernandez, a
coworker, harassed him based on his race, color, and sex. It is uncontroverted that Ms.
Hernandez did not act as plaintiff’s supervisor. The court thus considers whether defendants
acted negligently in response to plaintiff’s complaint about Ms. Hernandez’s actions.
To establish negligence under this brand of racial or sexual harassment, plaintiff must
show—in addition to the four elements of his harassment claims—that defendants “had actual or
constructive knowledge of the hostile work environment but did not adequately respond to notice
29

of the harassment.” Adler, 144 F.3d at 673 (citation omitted); see also Macias v. Sw. Cheese
Co., LLC, 624 F. App’x 628, 637 (10th Cir. 2015). Plaintiff can show actual knowledge “where
the plaintiff has reported harassment to management-level employees.” Adler, 144 F.3d at 673
(citation omitted).
Here, the court evaluates whether plaintiff has adduced sufficient facts to make a prima
facie case of harassment based on race, color, and sex. Specifically, the court focuses on
whether the harassment plaintiff experienced was severe or pervasive, as the Tenth Circuit
requires. Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) (conduct
must be “sufficiently pervasive or sufficiently severe”). Plaintiff has conceded he cannot base
his harassment claims on Mr. Cornelius’s actions because he failed to report them in a timely
manner to the EEOC. See Doc. 68 at 48–49. Also, plaintiff never provides any facts showing he
notified defendants about comments that he asserts his coworkers made about his penis. And, he
has adduced no evidence showing how defendants could have had constructive notice of these
comments. The sole incident plaintiff reported to his supervisor, Joe Heany, and then to Labor
Relations Representative Michael Poirier, involved the penis cakes that plaintiff asserts Ms.
Hernandez baked.
The Supreme Court has not reduced the inquiry whether conduct was severe or pervasive
to a “‘mathematically precise test.’” Morton v. Steven Ford-Mercury of Augusta, Inc., 162 F.
Supp. 2d 1228, 1241 (D. Kan. 2001) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22
(1993)). To the contrary, our Circuit has explained the governing rule as follows:
Some factors to be weighed include “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” [Harris, 510 U.S.] at 23[.] Because frequency is merely one factor
in the analysis, an isolated incident may suffice if the conduct is severe and
threatening. See, e.g., Lockard [v. Pizza Hut, Inc.], 162 F.3d [1062, 1072 (10th Cir.
30

1998)] (allowing claim based on single incident); [Smith, 129 F.3d at 1413]
(conduct must be “sufficiently pervasive or sufficiently severe”). The harassing
conduct must be “both objectively and subjectively abusive.” Lockard, 162 F.3d
at 1071.
Morton, 162 F. Supp. 2d at 1241. In Lockard, for example, the Tenth Circuit concluded that a
“single incident”—one where a customer at a restaurant grabbed the plaintiff’s hair twice,
grabbed her breast, and put his mouth on it—may be “sufficient to create an abusive
environment.” 162 F.3d at 1072. In other words, under facts as abusive as Lockard’s, a
reasonable jury could conclude that the conduct plaintiff complained about was sufficiently
severe. The Circuit also has considered a single incident of alleged harassment where a
plaintiff’s coworker “inappropriate[ly] touch[ed]” her and, when the plaintiff told her coworker
“his conduct was inappropriate,” he “lifted [her] either by the waist or by the wrists onto [a] pool
table and pinned her back against the pool table.” Creamer v. Laidlaw Transit, Inc., 86 F.3d 167,
169 (10th Cir. 1996). In Creamer, the Circuit affirmed the district court’s order granting
summary judgment, which had concluded that the conduct plaintiff asserted “fell short” of the
standards for severity and pervasiveness. Id. at 170.
Plaintiff asserts that the penis cakes and his coworkers’ comments about the size of his
penis were unwelcome and created a hostile work environment. He also contends that
defendants’ response—i.e., reminding Ms. Hernandez of defendants’ policies and placing an
Employee Contact form in her file—were not reasonably calculated to prevent plaintiff from
facing subsequent harassment.
The court concludes, first, that plaintiff has adduced sufficient evidence to raise a triable
issue whether defendants took steps “‘reasonably calculated to end the harassment’” he
experienced. Tademy, 614 F.3d at 1148 (quoting Adler, 144 F.3d at 676). Even though plaintiff
reported the cakes and his discomfort with them to his supervisor, Joe Heany, Mr. Heany took no
31

action in response. And, after plaintiff reported the cakes to Mr. Poirier, Mr. Poirier merely
spoke with Ms. Hernandez, warned her about defendants’ Anti-Harassment policy, and issued
her an Employee Contact form. Based on the absence of investigative steps and disciplinary
decisions, a jury could find that defendants failed to take steps reasonably calculated to end the
harassment plaintiff experienced.
Next, the court analyzes whether Ms. Hernandez’s conduct was severe or pervasive.
Viewing the facts here in plaintiff’s favor, the penis cakes presented to plaintiff for his birthday,
while distasteful, do not rise to the level of severity the Circuit has described for a single episode
of harassment. Plaintiff reported to Mr. Poirier that the cakes were offensive to him and made
him uncomfortable. Plaintiff also testified that the workplace was a “stressful environment”
because he was around people who thought of him as a “sexual object.” Doc. 68-5 at 144
(Redmon Dep. 142:6–16). But, the summary judgment facts also establish that plaintiff posted
photos of the cakes on his Facebook page. And, plaintiff provides no facts showing that the
cakes or any associated behavior during that incident were “severe and threatening.” Morton,
162 F. Supp. 2d at 1241. Taken together, the facts of the alleged harassment—the incident
involving the cakes—fail to create a triable issue whether the penis cakes created a “workplace
. . . permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or
pervasive to alter the conditions of [plaintiff’s] employment and create an abusive working
environment.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998)
(internal quotations omitted).
Plaintiff has failed to adduce evidence capable of supporting an essential element of his
harassment claims based on race, color, and sex. Namely, he has failed to marshal evidence that
the single incident of harassment he reported and complained about—the cakes—were

32

sufficiently severe to establish prima facie harassment claims under Title VII and § 1981. The
court thus grants defendants’ summary judgment motion against these claims.
2. Has plaintiff established a prima facie claim of harassment based on his
disability?
A hostile work environment claim under the ADAAA requires a plaintiff to “present
evidence from which a rational jury could find that [the] workplace was permeated with
discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter
the terms, conditions, or privileges of employment, and the harassment stemmed from disabilityrelated animus.” Schlecht v. Lockheed Martin Corp., 626 F. App’x 775, 779 (10th Cir. 2015);
see also Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir. 1997) (“To survive summary
judgment, the plaintiff must show that under the totality of the circumstances (1) the harassment
was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and
(2) the harassment was based on the victim’s . . . disability.”).
Plaintiff asserts that defendants’ offer to rehire him in November 2016 constitutes
harassment. On November 17, 2016, plaintiff gave defendants’ Medical Department notes from
his treating physician at the Mayo Clinic that described the physical limitation affecting his
employment. Later, defendants offered plaintiff a position as a two-days-per-week temporary
employee with a new hire date. This new hire date, plaintiff argues, deprived him of
employment benefits that temporary employees receive after working for defendants for a certain
amount of time. Plaintiff compares this employment offer with the offer defendants made to him
in September 2016, when defendants reinstated his employment with his original start date. The

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only difference between the two offers, plaintiff contends, was plaintiff’s physical limitation
when he returned to work in November 2016.
But, plaintiff doesn’t explain how defendants’ November 2016 employment decision
shows that plaintiff’s workplace was “permeated with discriminatory intimidation, ridicule, and
insult . . . sufficiently severe or pervasive to alter the terms, conditions, or privileges of [his]
employment.” Roecker v. Brennan, No. 15-7201-DDC-JPO, 2017 WL 445504, at *15 (D. Kan.
Feb. 2, 2017). Defendants fired plaintiff on November 2, 2016. Their employment offer later
that month could not have affected the workplace because plaintiff was not employed when
defendants extended the offer. The court thus concludes that plaintiff has failed to provide facts
supporting an essential element of his ADAAA harassment claim. The court thus grants
defendants’ summary judgment motion against that claim.
D. Plaintiff’s Retaliation Claims
Plaintiff also has asserted retaliation claims under Title VII and § 1981. Doc. 1 at 16–17
(Compl. ¶¶ 95–103), 19–21 (Compl. ¶¶ 111–20), 24–25 (Compl. ¶¶ 136–44), 29–30 (Compl.
¶¶ 161–69). His “prima facie case [must] demonstrat[e] that (1) he . . . engaged in protected
activity, (2) he . . . suffered a material adverse action, and (3) there was a causal connection
between the protected activity and the adverse action.” Thomas v. Berry Plastics Corp., 803
F.3d 510, 514 (10th Cir. 2015) (citing Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1195 (10th
Cir. 2011)). Retaliation claims brought under § 1981 are limited to retaliation that is based on
protected activity involving race, not sex. Runyon v. McCrary, 427 U.S. 160, 167 (1976). And,
“[w]hen a plaintiff presents only circumstantial evidence, the McDonnell Douglas burden-

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shifting framework typically applies.” Id. (citing Ward v. Jewell, 772 F.3d 1199, 1202 (10th Cir.
2014)).
1. Parties’ arguments
Defendants argue that plaintiff has failed to exhaust his administrative process for
retaliation claims because, in each of the two Charges of Discrimination he filed with the EEOC,
he didn’t identify retaliation as one of the bases for his Charge. Plaintiff responds, asserting that
his first Charge of Discrimination with the EEOC, filed on November 18, 2016, is the protected
activity against which defendants retaliated. He filed his Charge a few days before defendants
offered him a two-day temporary position with a new hire date. The new hire date, plaintiff
argues, deprived him of benefits he had accrued during his earlier temporary employment. And,
in his March 22, 2017, Amended Charge of Discrimination, plaintiff explained that his
“termination based on [his] disability caused [him] to lose [his] full time temp status and the
benefits therein.” Doc. 68 at 60. Because he filed his original Charge before the purported
retaliatory act, plaintiff asserts that “the retaliatory action is reasonably related to the charge.”
Doc. 68 at 58; see also Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir.
1988) (“[A]n act committed by an employer in retaliation for the filing of an EEOC complaint is
reasonably related to that complaint, obviating the need for a second EEOC complaint.”); Nealon
v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (holding plaintiff need not exhaust administrative
remedies for post-EEOC charge retaliation claim because conciliatory purpose of exhaustion no
longer advanced). Defendants were put on notice of his retaliation claims, plaintiff argues,

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because of his explanation of his post-termination loss of benefits. Thus, he contends, the court
shouldn’t bar these claims as administratively unexhausted.
On the merits of his retaliation claim, plaintiff asserts that defendants made their
November 2016 employment offer just days after plaintiff filed his first EEOC Charge. He relies
on temporal proximity between his protected activity and defendants’ employment offer with
fewer benefits to establish “‘an inference of the existence of a causal connection between the two
events.’” Id. at 69 (quoting EEOC v. PVNF, LLC, 487 F.3d 790, 804 (10th Cir. 2007)). But,
defendants reply, directing the court to an exhibit showing they received no notice of plaintiff’s
November 18, 2016, Charge of Discrimination. The EEOC authored a letter dated November 30,
2016, to defendant General Motors’ then-counsel Roderick Gillum, informing him of plaintiff’s
Charge. Doc. 70 at 13–14 (citing Doc. 70-4 at 2).
2. Did plaintiff administratively exhaust his retaliation claims?
“[A] plaintiff’s failure to file an EEOC charge regarding a discrete employment incident
merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar
a federal court from assuming jurisdiction over a claim.” Lincoln v. BNSF Ry. Co., 900 F.3d
1166, 1185–86 (10th Cir. 2018); see also Fort Bend Cty. v. Davis, No. 18-525, slip op. at 1–2
(June 3, 2019) (“Prerequisites to suit like Title VII’s charge-filing instruction are not
[jurisdictional]; they are properly ranked among the array of claim-processing rules that must be
timely raised to come into play.”). “The primary distinction between treating exhaustion as
jurisdictional rather than as an affirmative defense, is that as an affirmative defense it is subject
to waiver and estoppel. The difference is immaterial where waiver and estoppel do not come
into play.” Brown v. Keystone Learning Servs., No. 17-2211-JAR, 2018 WL 6042592, at *5 (D.
Kan. Nov. 19, 2018) (appeal docketed March 25, 2019). And, courts “must liberally construe the

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administrative charge to determine whether a particular claim has been exhausted.” Id. Courts
must look to “‘the scope of the administrative investigation that can reasonably be expected to
follow from the discriminatory acts alleged in the administrative charge.’” Id. (quoting Jones v.
U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007)).
Here, plaintiff did not select retaliation as a basis for any of his Charges. And, it is
uncontroverted that defendants have not waived their affirmative defense of administrative
exhaustion—they asserted the defense in their Answer (Doc. 12 at 53). But, the Tenth Circuit
directs that a purportedly retaliatory action that follows an EEOC Charge is “reasonably related”
to that Charge and doesn’t require a plaintiff to file a second Charge to exhaust his administrative
remedies. See Brown, 864 F.2d at 682; see also Nealon, 958 F.2d at 590. The court thus
concludes that plaintiff has exhausted his administrative remedies for his retaliation claims
before bringing them as part of his lawsuit under Title VII.3
3. Has plaintiff established a prima facie claim of retaliation?
Next, the court considers the merits of plaintiff’s retaliation claims. Defendants argue
that plaintiff has failed to establish a causal connection between his protected activity and the
alleged adverse employment action. Plaintiff appears to assert that his first Charge of
Discrimination with the EEOC, filed on November 18, 2016, is the protected activity that
spurred defendants to retaliate. He filed his Charge a few days before defendants offered him a
two-day temporary position with a new hire date. The new hire date, plaintiff argues, deprived
him of benefits he had accrued during his earlier temporary employment. He relies on temporal
proximity between his protected activity and defendants’ employment offer with fewer benefits

3

Unlike a Title VII retaliation claim, no administrative exhaustion requirement applies to claims brought under
§ 1981. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 455 (2008).

37

to establish “‘an inference of the existence of a causal connection between the two events.’”
Doc. 68 at 69 (quoting PVNF, 487 F.3d at 804). But, defendants reply, they received no notice
of plaintiff’s November 18, 2016, Charge of Discrimination until November 30, 2016, when the
EEOC dated a letter to defendant General Motors’ then-counsel Roderick Gillum, informing him
of plaintiff’s Charge. Doc. 70 at 13–14 (citing Doc. 70-4 at 2).
Plaintiff offers no evidence suggesting that defendants had notice of his first EEOC
Charge before they offered him two-day temporary employment with a start date of November
28, 2016. They made that offer two days before the EEOC dated its letter informing defendants
that plaintiff had filed a Charge of Discrimination. Plaintiff asserts that his Charge “result[ed]”
in the “materially adverse” employment offer that deprived him of benefits, but he can’t explain
how defendants knew about the Charge before making the allegedly retaliatory offer. See
Bertsch v. Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012) (“A prima facie retaliation case
is made if the plaintiff shows that she engaged in protected opposition to discrimination, and, as
a result, suffered materially adverse action . . . .” (citing Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006))), abrogated on other grounds, Lincoln, 900 F.3d at 1185–86; see
also Lincoln, 900 F.3d at 1212–13 (“[D]ecisionmaker(s) must have knowledge of the protected
activity. For how can decisionmakers retaliate against an employee for taking protected activity
if they do not know about the protected activity?”).
Consistent with these case authorities, the court concludes that plaintiff has failed to
adduce facts supporting an essential element of his ADAAA retaliation claim. The court thus
grants defendants’ summary judgment motion against this claim.

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E. Plaintiff’s ADAAA Discrimination Claim
Plaintiff asserts a separate discrimination claim based on his disability under the
ADAAA. Doc. 1 at 25–28 (Compl. ¶¶ 145–60). “[T]o establish a prima facie case of
discrimination under the ADAAA, a plaintiff must show that (1) he is disabled as defined under
the ADAAA; (2) he is qualified, with or without reasonable accommodation by the employer, to
perform the essential functions of the job; and (3) he was discriminated against because of his
disability.” Adair v. City of Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016). The ADAAA
provides that “‘[t]he definition of disability . . . be construed in favor of broad coverage.’” Id. at
1306 (quoting ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553
(codified as amended 42 U.S.C. §§ 12101–12213)). And, the Tenth Circuit considers the
following factors when determining “whether a particular function is essential”:
(1) the employer’s judgment as to which functions are essential; (2) written job
descriptions; (3) the time spent performing the particular function; (4) the
consequences if the individual cannot perform the function; (5) any collectivebargaining agreement; (6) the work experience of those in the position in the past;
and (7) the current work experience of those in similar positions. Id. at 1307 (citing
29 C.F.R. § 1630.2(n)(3)).
To satisfy the third element of a prima facie case, a plaintiff must “present some
affirmative evidence that disability was a determining factor in the employer’s decision.”
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); see also Markham v. Boeing Co.,
No. 10-1363-MLB, 2011 WL 6217117, at *4–5 (D. Kan. Dec. 14, 2011) (applying Morgan
standard to claim brought under ADAAA). “This burden is ‘not onerous’ but it is also ‘not
empty or perfunctory.’” Morgan, 108 F.3d at 1323–24 (citation omitted) (quoting Ennis v. Nat’l
Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995)). In other words, “[t]he
plaintiff must present evidence that, if the trier of fact finds it credible, and the employer remains
silent, [he] would be entitled to judgment as a matter of law.” Id. at 1324.
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1. Has plaintiff established a prima facie claim of discrimination under the
ADAAA?
As with plaintiff’s race and color discrimination claims, defendants, for purposes of
summary judgment, seem to challenge just one element of the analysis: whether plaintiff was
qualified for his position on the assembly line. Defendants did not challenge—at least at
summary judgment—whether plaintiff had a disability. And, the court again determines that a
reasonable jury could conclude plaintiff was qualified to perform his assembly line job despite
his reported disability. Defendants’ corporate representative, Ca-Sandra Tutt, explained that
defendants maintain current job elements and descriptions. Doc. 68-3 at 19 (Tutt Dep. 66:22–
68:22). But, in their responses to plaintiff’s Requests for Production, defendants represented that
they “do not maintain job descriptions or historic Job Element Sheets.” Doc. 68-13 at 8. The
parties have not provided a written job description for plaintiff’s position when he worked for
defendants.
Defendants also assert that employees in plaintiff’s position were required to walk and
stand as part of their jobs. But, defendants don’t contest that plaintiff—and other employees
working on the same assembly line—spent some time working in a seated position. Jane Stark, a
doctor employed in defendants’ Medical Department, concluded that plaintiff required sedentary
work after receiving a note from his treating doctor at the Mayo Clinic. That note explained that
plaintiff needed to refrain from strenuous activity. But, a jury reasonably could determine that
plaintiff could have done his assembly line job—which didn’t require him to lift heavy objects
and allowed him to sit regularly—even with his reported disability. Though plaintiff’s treating
doctor at the Mayo Clinic opined that plaintiff was “not in a position to work at the assembly
line,” that doctor also assumed that assembly line work was a “very active type of physical

40

labor.” Doc. 69-9 at 14 (Dall Dep. 12:18–13:5). A reasonable jury could conclude otherwise
based on the summary judgment facts describing plaintiff’s exact role on the assembly line.
But, plaintiff hasn’t met his burden to show his disability was a determining factor in his
termination. In his response to defendants’ summary judgment motion, plaintiff identifies no
facts explaining how his disability factored into defendants’ decision to fire him in November
2016. In fact, the summary judgment facts demonstrate that plaintiff only presented information
about his physical limitation to defendants on November 17, 2016—more than two weeks after
defendants terminated his employment. Without additional facts or argument—and plaintiff
provides none—a reasonable jury could not conclude that plaintiff has satisfied his burden on the
third element of his ADAAA discrimination claim.
Though plaintiff’s qualification for his position presents a triable issue, plaintiff has not
provided sufficient facts or any argument about whether his disability was a determining factor
in his November 2016 termination. Thus, since plaintiff has failed to make a prima facie claim
for discrimination under the ADAAA, the court grants defendants’ summary judgment motion
against this claim.
F. Plaintiff’s ADAAA Retaliation Claim
Finally, plaintiff brings a separate retaliation claim under the ADAAA. Doc. 1 at 29–30
(Compl. ¶¶ 161–69). To make a prima facie claim, he must demonstrate that “(1) [he] engaged
in a protected activity; (2) [defendants] took an action that a reasonable employee would have
found materially adverse; and (3) there exists a causal connection between the protected activity

41

and the adverse action.” Dewitt, 845 F.3d at 1318–19. Like plaintiff’s other claims, his
ADAAA retaliation claim also applies the McDonnell Douglas burden-shifting framework.
The parties’ briefing on plaintiff’s ADAAA retaliation claim is sparse, but their papers
make the same arguments about the merits of plaintiff’s Title VII and § 1981 claims.4 The court
grants summary judgment against plaintiff’s ADAAA retaliation claim for the same reason that it
granted summary judgment against his Title VII and § 1981 retaliation claims: defendants
received no notice of his first EEOC Charge (plaintiff’s protected activity) before they offered
him the two-days-per-week temporary position with fewer benefits (their purported retaliatory
conduct). Specifically, the EEOC sent a letter dated November 30, 2016, to defendant General
Motors’ then-counsel Roderick Gillum, informing him of plaintiff’s Charge. Doc. 70 at 13–14
(citing Doc. 70-4 at 2). Plaintiff offers no evidence demonstrating that his Charge “result[ed]” in
the “materially adverse” employment offer that—according to plaintiff—deprived him of
benefits, and he doesn’t explain how defendants knew about the Charge before making the
allegedly retaliatory offer. See Bertsch, 684 F.3d at 1028 (“A prima facie retaliation case is
made if the plaintiff shows that she engaged in protected opposition to discrimination, and, as a
result, suffered materially adverse action . . . .” (citing White, 548 U.S. at 68)); see also Lincoln,
900 F.3d at 1212–13 (“[D]ecisionmaker(s) must have knowledge of the protected activity. For

4

In their Answer to the Complaint, defendants assert that plaintiff’s “claims, including but not limited to his
claims of retaliation, are barred in whole or in part to the extent [p]laintiff alleges claims or seeks relief that exceed
the scope of any administrative charges, and therefore were not administratively exhausted.” Doc. 12 at 53. But,
defendants do not raise that affirmative defense in their summary judgment arguments opposing plaintiff’s ADAAA
retaliation claim. Though they have not waived that defense, the court focuses on defendant’s causation argument.
See Doc. 70 at 13–14; see also Lincoln, 900 F.3d at 1185–86 (holding that court still may assume jurisdiction over a
claim even if plaintiff fails to file EEOC charge about an employment incident).

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how can decisionmakers retaliate against an employee for taking protected activity if they do not
know about the protected activity?”).
The court thus concludes that plaintiff has failed to adduce facts capable of supporting an
essential element of his ADAAA retaliation claim. The court grants defendants’ summary
judgment motion against this claim.
G. Plaintiff’s Claims for Economic Damages
The court has granted defendants’ summary judgment motion against each of plaintiff’s
claims. The court thus does not need to address the parties’ summary judgment arguments about
plaintiff’s claims for economic damages.
IV.

Conclusion
For the reasons explained above, the court grants defendants’ summary judgment motion

(Doc. 61) against all of plaintiff’s claims.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants General
Motors Company and General Motors LLC, GMVM Fairfax Assembly Plant’s Motion for
Summary Judgment (Doc. 61) is granted.
IT IS FURTHER ORDERED BY THE COURT THAT the Clerk is directed to enter a
judgment consistent with this Order and close this case.
IT IS SO ORDERED.
Dated this 6th day of June, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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