Garcia v. Tyson Foods, Inc. et al

Filing 48

MEMORANDUM AND ORDER granting 43 defendants' Motion for Summary Judgment. Signed by District Judge J. Thomas Marten on 12/10/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Antonio Garcia,
Plaintiff,
vs.

Case No. 11-1141-JTM

Tyson Foods, Inc., et al.,
Defendants.

MEMORANDUM AND ORDER

Plaintiff Antonio Garcia was terminated from his employment by Tyson Foods, Inc.,
in 2010. He brought this action which alleges that Tyson terminated him in retaliation for
his participation in a separate federal action against the company. Tyson has moved for
summary judgment, and the court finds that Garcia has failed to provide necessary
evidence in support his claim of retaliation.
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the
court must examine all evidence in a light most favorable to the opposing party. McKenzie
v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment beyond a reasonable
doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party
need not disprove plaintiff's claim; it need only establish that the factual allegations have

no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323
(10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon
mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving
party must come forward with specific facts showing the presence of a genuine issue of
material fact for trial and significant probative evidence supporting the allegation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried
its burden under Rule 56(c), the party opposing summary judgment must do more than
simply show there is some metaphysical doubt as to the material facts. "In the language
of the Rule, the nonmoving party must come forward with 'specific facts showing that
there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and the rule should be interpreted in a way that allows
it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Findings of Fact
Tyson owns and operates beef processing facilities in Finney County, Kansas, where
Garcia began working on July 7, 2004. Garcia worked in the offal department packaging
hearts under the supervision of Juan Carrera.
Garcia became a class representative in a wage and hour class action filed against
Tyson in 2006.
On May 21, 2010, Garcia and Carrera had a confrontation. Garcia was suspended
from May 24, 2010 to June 9, 2010, while Mitch Young, Tyson’s Complex Human Resources
Manager, investigated the incident.

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Garcia gave a written statement on May 24, 2010, contending that Carrera had
confronted him because Garcia had seen him sexually harassing Roxanne Cruz. Garcia
made no mention in his written statement that he believed the confrontation was caused
by his involvement with Fair Labor Standards Act (FLSA) protected activities.
Garcia admits that Tyson terminated his employment because Tyson believed he
had a physical altercation with Carrera:
Q: Do you believe – rather, do you contend in this lawsuit that Tyson
believed the words that Juan Carrera told Tyson about you?
A: Yes, of course. That’s why I’m no longer with Tyson.
Q: Okay. So you contend that Tyson believed Mr. Carrera when Mr. – when
Mr. Carrera said that you had a physical altercation with him?
A: That’s correct.
Q: And as a result of believing that information that was reported by Mr.
Carrera, Tyson terminated your employment?
A: Yes.
Carrera gave a written statement on June 7, 2010, which alleged that Garcia had
physically pushed him after he talked with Garcia about being away from his workstation.
Carrera stated that he never sexually harassed Cruz.
Other employees also provided written statements regarding the incident. Rafael
Murrillo stated that Carrera called him over the radio, stating that Garcia was observed in
a work area that could cause cross contamination. Carrera asked Garcia to go back to his
work station because of possible cross contamination, and Garcia responded by saying that
Carrera was mentally ill and crazy. Murillo saw Garcia pushing Carrera with his chest at
the end of the shift.
Omar Castrejon stated that he saw Carrera ask Garcia to go back to his work area
because he was going to contaminate the hearts, and in response, Garcia got mad,
“throwing his hands and arms around like a mad man” and followed Carrera, saying bad
things.
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Jose Godinez stated that he observed Garcia being very aggressive toward Carrera
and pushing Carrera with his chest.
Guadalupe Chavez was speaking with Carrera when a man came up and pushed
Carrera aggressively.
Maria Auina saw Garcia run after Carrera as he left the offal department and that
Garcia was “angry and looked upset moving his hands and body everywhere.”
Emanuel Alarcon saw Carrera tell Garcia to return to his work area, and
immediately afterward, Garcia followed Carrera while making offensive signs. During the
shift change, he saw Garcia push Carrera with his chest at the trim rail area.
Miguel T. Duarte Torres saw Garcia in an area he was not allowed, and he saw
Carrera tell Garcia to return to his work area. After Carrera told Garcia to return to his
work area, Garcia told him “that damned little old man is crazy” and Garcia made signs
with his hands toward Carrera.
Elvia Rubio saw Garcia and Carrera arguing and, when Carrera left the area, Garcia
went after Carrera.
Elizabeth Cruz saw Garcia yelling and pointing at Carrera, Carrera calling Rafael
Murrillo to help the situation, and Carrera and Garcia arguing as she was leaving to go
home.
Roxanna Cruz provided Tyson with a written statement dated June 7, 2010, stating
that she has never been sexually harassed by Juan Carrera.
As part of his investigation, Young obtained and reviewed the witness statements
submitted by Garcia, Carrera, Murrillo, Castrejon, Godinez, Chavez, Auina, Alarcon,
Duarte Torres, Rubio, Elizabeth Cruz, and Roxanne Cruz.
Young met with Garcia on June 4, 2010, to go over Garcia’s statement. Young asked
Garcia if he needed to make any changes to his statement or if there were any additional
witnesses he should talk with, and Garcia told him no. Garcia told Young that Carrera
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wanted to have him fired because Garcia had witnessed Carrera sexually harassing
Roxanne Cruz. Garcia stated that he did not report the sexual harassment to anyone.
Young also personally spoke with Carrera, who told him that he did not improperly
hug or touch Roxanne Cruz, and with Roxanne Cruz, who told him that Carrera had never
sexually harassed her.
As a result of his investigation, Mitch Young believed Garcia had a physical
confrontation with management. Young provided Tyson with a written summary, dated
June 7, 2010, of his investigation of the confrontation between Garcia and Carrera.
Garcia was terminated from Tyson on June 9, 2010, which became effective on June
10, 2010, for having a physical confrontation with management.
The three class representatives in Garcia, et al. v. Tyson Foods, No. 06-CV-2198-JTM,
were Garcia, Adelina Garcia, and Jeronimo Vargas-Vera. Adelina Garcia is currently
employed at Tyson’s Finney County facility. Jeronimo Vargas-Vera voluntarily stopped
working at Tyson to return to his hometown in Mexico:
Q:

Okay. Now, the reason you’re no longer working at Tyson is simply
because you decided you didn’t want to work any more, is that correct?

A:

That’s right.

Q:

And you, before you quit, you didn’t tell anybody at Tyson that you
were going back to Mexico, is that correct?

A:

Yes, that’s right.

Q:

And you just took a vacation and simply didn’t return to work, is that
correct?

A:

That’s right.

Conclusions of Law
Tyson seeks summary judgment on two grounds. First, it contends that Garcia has
failed to demonstrate one of the essential elements of a prima facie case of retaliation,
having failed to show a causal connection between his protected FLSA activity and his
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termination. See McMillin v. Foodbrands Supply Chain Servs., Inc., 272 F. Supp. 2d 1211, 1218
(D. Kan. 2003). Second, it contends that even if Garcia had presented a prima facie case,
Garcia’s apparent assault on Carrera was a legitimate, non-discriminary reason for the
termination.
Garcia provides no substantial response to these arguments, other than generally
contending that it is improper to rely on affidavits as a basis for obtaining summary
judgment. For this argument, Garcia relies on language from Jackson v. Griffith, 480 F.2d
261, 267 (10th Cir. 1973), which was rendered a decade before the Supreme Court’s
decisions supporting modern summary judgment practice in Matsushita and Celotex. See
Celotex, 477 U.S. at 324 (party opposing summary judgment may not rest on pleadings, but
must affirmatively demonstrate material factual controversy). Rule 56 explicitly authorizes
the filing of affidavits in support of motions for summary judgment. And Jackson itself
acknowledges that under Rule 56, affidavits may be used “to show whether any issue of
material fact exists.” Id.
Here, Young’s affidavit reflects both his own personal knowledge of his
investigation, and incorporates written employee statements addressing matters occurring
in the workplace. These statements attached to Young’s affidavit are properly admissible
as business records. See IBP, Inc. v. Mercantile Bank of Topeka, 6 F.Supp.2d 1258, 1263
(D.Kan.1998); In re Harris, 209 B.R. 990, 996 (B.A.P. 10th Cir.1997) (quoting 11 James Wm.
Moore, MOORE'S FEDERAL PRACTICE §§ 56.10[4][c][I], 56.14[2][c] (3d ed.1997)).
The evidence before the court demonstrates no causal connection between Garcia’s
FLSA activity and his termination. Garcia has failed to present any “evidence of
circumstances that justify an inference of retaliatory motive, such as protected conduct
closely followed by adverse action.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th
Cir. 2001) (citing Burrus v. United Tel. Co. of Kan., 683 F.2d 339, 343 (10th Cir. 1982)). “Unless

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there is very close temporal proximity between the protected activity and the retaliatory
conduct, the plaintiff must offer additional evidence to establish causation.” Id.
Here, Garcia’s participation in the FLSA class action occurred when he became a
class representative in 2006. Four years thus elapsed between the protected activity and the
plaintiff’s termination, a period which provides no suggestion of a retaliatory motive. See
Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999) (three-month gap standing
alone was insufficient to demonstrate causation); Kendrick v. Penske Transp. Servs., 220 F.3d
1220, 1234 (10th Cir. 2000) (six-month gap). Here, Garcia has failed to demonstrate any
event in the FLSA action before his termination which could give an inference of
retaliation. He has also failed to present any other admissible evidence which would create
an inference. In contrast, Tyson has presented evidence that the other class representatives
in the FLSA action suffered no adverse employment effects. In light of the evidence in the
case, the court finds that plaintiff has failed to establish a prima facie case of retaliation.
But even if Garcia had presented a prima facie case of retaliation, summary
judgment would still be warranted, as Tyson had a legitimate, non-discriminatory reason
for the termination. Given the statements of multiple employees stating that the plaintiff
assaulted his supervisor, Tyson was justified in the termination. See Watts v. City of Norman,
270 F.3d 1288, 1295 (10th Cir. 2001). The issue is not whether Garcia in fact assaulted
Carrera, but whether Tyson could have reasonably believed he did. Id. The evidence from
plaintiff’s co-workers provided a reasonable basis for the employer to act as it did.
IT IS ACCORDINGLY ORDERED this 10th day of December, 2012, that the
defendant’s Motion for Summary Judgment (Dkt. 43) is hereby granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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