Gilkey v. ADT Security, Inc.

Filing 85

MEMORANDUM AND ORDER denying 58 Plaintiff's Motion for Summary Judgment; granting 78 Defendant's Cross-Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 3/1/2013.Mailed to pro se party Christopher Gilkey, PO Box 47462, Wichita, KS 67201 by regular mail. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTOPHER GILKEY,

)
)
Plaintiff,
)
)
vs.
)
)
ADT SECURITY SERVICES, INC.
)
)
)
Defendant.
)
____________________________________)

Case No. 11-1369-JAR

MEMORANDUM AND ORDER
This litigation arose as a result of Defendant ADT Security, Inc.’s decision not to rehire
Plaintiff Christopher Gilkey in August 2011. Plaintiff filed this suit pro se in Sedgwick County
District Court, claiming that Defendant’s failure to rehire him constituted both race
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964,1 and
Defendant removed the case to federal court in November 2011. On July 3, 2012, Plaintiff
moved for summary judgment on both counts (Doc. 58). On November 9, 2012, Defendant filed
a cross-motion for summary judgment on both counts (Doc. 78). Both motions are currently
before the Court and are fully briefed, and the Court is prepared to rule. As described more fully
below, the Court grants Defendant’s cross-motion for summary judgment and denies Plaintiff’s
motion for summary judgment.
I.

Legal Standards
Summary judgment is appropriate if the moving party demonstrates that there is no

1

42 U.S.C. § 2000e.

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.2 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.3 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”4 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”5 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’”6
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.7 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.8
Once the movant has met this initial burden, the burden shifts to the nonmoving party to

2

Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

3

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

4

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

5

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
6

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
7

Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)).
8
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).

2

“set forth specific facts showing that there is a genuine issue for trial.”9 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.10 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”11 To accomplish this, the facts “must be
identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated
therein.”12 Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge
and shall set forth such facts as would be admissible in evidence.13 The non-moving party
cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by
specific facts, or speculation.14 In responding to a motion for summary judgment, “a party
cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary
judgment in the mere hope that something will turn up at trial.”15
“Where, as here, the parties file cross-motions for summary judgment, we are entitled to
assume that no evidence needs to be considered other than that filed by the parties, but summary

9

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
10

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

11

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
12

Adams, 233 F.3d at 1246.

13

Fed. R. Civ. P. 56(c)(4).

14

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
15

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

3

judgment is nevertheless inappropriate if disputes remain as to material facts.”16
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”17
II.

Uncontroverted Facts
Many of the relevant facts in this case are not controverted for purposes of summary

judgment. In January 2007, Defendant hired Plaintiff as a High Volume Sales Representative,
on a commission only basis. Plaintiff first worked for Aaron Westerman in Defendant’s Wichita
office, until Aaron Ellis transferred to the Wichita office in April 2007, and became Plaintiff’s
manager. In October 2007, Plaintiff filed an internal complaint alleging that Ellis was unfairly
distributing company leads. After an argument with managers and other workers, Plaintiff was
either suspended or temporarily terminated from employment in November 2007, although he
was reinstated a few days later. Also in November 2007, ADT’s Regional Manager of Human
Resources, Karen Hawkins, asked Plaintiff to send her an email describing his concerns about
Ellis. He emailed Hawkins a letter that described his general concerns and a particular
conversation with Ellis. As Plaintiff described his conversation with Ellis in the letter to Hawkins,
Plaintiff told Ellis that someone on the outside looking in at how Ellis was distributing leads would
think Ellis was discriminating. Ellis allegedly responded that he did not care what the people outside
of ADT might think, because, he suggested, “there are ways to cover it up and it is hard to prove.”

16

James Barlow Family Ltd. P’ship v. David M Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)
(citation omitted).
17

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

4

In January 2008, Hawkins entered a written response to Plaintiff’s complaint against Ellis
into Defendant’s Global Compliance Hotline reporting system. The response stated, “Thank you
for submitting your concern. This case has been closed and resolved. Please contact Karen
Hawkins . . . if any additional information is needed.” Also in January 2008, Ellis resigned from
his position with Defendant, and Westerman became Plaintiff’s manager.
Over a year later, on April 15, 2009, Plaintiff contacted Defendant’s Global Compliance
Hotline to make a complaint against Westerman. Plaintiff alleged that Westerman was unfairly
distributing company leads, and he stated that Westerman was discriminating against him, but he
did not allege racial discrimination; as Plaintiff stated during his deposition, “I said
discrimination, I didn’t add racial to it.” Neither Hawkins nor Westerman understood the
complaint to allege racial discrimination. Hawkins investigated Plaintiff’s complaint and found
no evidence that Westerman was showing favoritism in the distribution of company leads.
Defendant describes several episodes of inappropriate behavior by Plaintiff while he
worked for Defendant. In addition to the November 2007 incident described above, in late
August 2009, Westerman’s manager, Jonah Serie, sent Westerman an email stating that he did
not like Plaintiff’s tone when speaking with Serie and other co-workers. Serie told Westerman
to, “Get this rep under control or I will. He has NO business talking to anyone like this let alone
his boss, his boss’ boss and [other employees]. His tone with local admin needs to be addressed
as well.” Plaintiff also failed to meet a sales goal metric established by Defendant. It is unclear
whether the goals were a requirement for continued employment, but it is clear that Defendant
wanted its salesmen to meet the goal, and Plaintiff did not do so and stated that he did not try to
do so.
5

On September 8, 2009, Plaintiff informed Westerman that he would be resigning from his
position with Defendant effective September 22, 2009. Jonah Serie, Westerman’s manager, told
Westerman to let Plaintiff go on September 8, 2009, rather than allow him work until September
22, 2009. Plaintiff’s last day of work was either September 9th or September 10th, 2009. On
September 22, 2009, Westerman completed Plaintiff’s termination paperwork and marked him
ineligible for re-hire. Also in 2009, Westerman coded two Caucasian salesmen as ineligible for
re-hire, based on their inability to meet sales goals, even though they voluntarily resigned from
their employment with Defendant.
In early August 2011, Plaintiff received an email stating that Defendant was interviewing
in his area. He applied for sales position but was told that he was not eligible for rehire.
Plaintiff filed a Charge of Discrimination with the EEOC on August 4, 2011. In August and
September 2011, Defendant hired two new Sales Reps in the Wichita, Kansas office—one an
African-American female and one a Caucasian male.
III.

Discussion
When a litigant proceeds pro se, the “pleadings are to be construed liberally and held to a

less stringent standard than formal pleadings drafted by lawyers.”18 The Court makes
some allowances for the pro se plaintiff’s failure to cite proper legal
authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements, the court cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the
record. It is not the proper function of the district court to assume the

18

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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role of advocate for the pro se litigant.19
Thus the Court will attempt to discern the pro se litigant’s arguments, but will not create his
arguments for him. Based on Plaintiff’s pleadings, the Court understands him to argue that
Defendant failed to hire him based on his race or failed to hire him and/or designated him
ineligible for rehire in retaliation for his complaints of race-based discrimination.
A.

Race Discrimination Allegation

A plaintiff alleging that a failure to hire was based on racial discrimination must prove
four prima facie elements: (1) Plaintiff is a member of a protected class; (2) He applied for an
available position; (3) He was qualified for the position; and (4) He was rejected under
circumstances which give rise to an inference of unlawful discrimination.20 If the plaintiff
proves these four elements, the defendant must provide a legitimate, non-discriminatory reason
for the adverse employment action.21 If the defendant provides such a reason, the plaintiff has an
opportunity to establish that the legitimate, non-discriminatory reason was merely a pretext for a
racial motivation.22
In this case, Defendant concedes for purposes of summary judgment that Plaintiff is a
member of a protected class who applied for an available position, but Defendant maintains that
Plaintiff cannot offer any admissible evidence to prove the third and fourth elements of the prima

19

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (quotations, alteration, and
citation omitted).
20

Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1278 (10th Cir. 1999) (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252–53 (1981)).
21

Id. at 1278.

22

Id. at 1278–79.

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facie case, entitling Defendant to judgment as a matter of law.
Defendant argues that Plaintiff was not qualified for the position because he received a
designation of not eligible for rehire on his termination paperwork when he left employment.
Prior successful performance with a company can serve as evidence that an applicant is qualified
for a position,23 and, by the same reasoning, unsuccessful prior employment suggests that an
applicant is not qualified for a position. Plaintiff’s designation as not eligible for rehire suggests
that his prior employment with Defendant was not successful. Here, Plaintiff offers no evidence
to suggest that he is qualified, beyond his prior employment, and does not suggest that other
individuals who were designated no rehire were nevertheless hired. Thus Plaintiff fails to create
a genuine issue of material fact as to whether he is actually qualified for the position, one of the
key elements of a prima facie case for discrimination. Plaintiff’s claim that Defendant’s failure
to rehire him was based on racial discrimination thus fails.
Even if Plaintiff were able to create a genuine issue as to whether he was qualified for the
position, he has failed to provide facts suggesting he was rejected under circumstances which
give rise to an inference of unlawful discrimination. In August and September 2011, Defendant
hired two new salesmen in the Wichita, Kansas office, one an African-American female and one
a Caucasian male. These hires do not suggest a pattern of discrimination. The only fact Plaintiff
presents that suggests discrimination is the 2007 conversation with Ellis, where Plaintiff suggested
that “someone from the outside looking in would think [Ellis was] discriminating,” and Ellis
allegedly stated that “he [did] not care what the people outside of ADT might think. There [are] ways
to cover it up and it is hard to prove.” Even assuming that this fact is properly before the Court, this

23

Fischer v. Forestwood Co., 525 F.3d 972, 985 (10th Cir. 2008).

8

does not give rise to an inference of unlawful discrimination. Ellis left the company in January

2008, and was not with the company when Plaintiff was designated not eligible for rehire or
when he was not rehired. These facts do not suggest unlawful discrimination, so Plaintiff has
failed to meet the fourth requirement to make a prima facia case of race discrimination.
B.

Retaliation Allegation

A plaintiff alleging retaliation in violation of Title VII must prove three prima facie
elements: (1) Plaintiff engaged in protected opposition to Title VII discrimination; (2) He
suffered an adverse employment action; and (3) There is a causal connection between the
protected activity and the adverse employment action.24 If the plaintiff establishes a prima facie
case, the defendant must provide a legitimate, non-discriminatory reason for the adverse
employment action.25 If the defendant provides a legitimate, non-discriminatory reason, the
plaintiff has the opportunity to show that the given reason was merely pretextual.26
In this case, Defendant concedes for purposes of summary judgment that Plaintiff
engaged in protected opposition to discrimination in October 2007, and suffered an adverse
employment action in August 2011, when he was denied re-employment. Defendant maintains
that Plaintiff cannot establish that he engaged in protected activity in April 2009, and that he
cannot prove a causal connection. Construed broadly, Plaintiff argues that both the failure to
rehire him and the decision to designate him do not rehire both constitute retaliation for his
protected activity. Both of Plaintiff’s arguments require that he engaged in protected activity in

24

Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir. 2004).

25

Id.

26

Id.

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April 2009, and that he prove a causal connection between the adverse action and his protected
activity.
Plaintiff’s protected 2007 activity does not serve as the predicate activity for this suit.
Plaintiff does not argue that he suffered an adverse employment action after his 2007 complaint,
and the subject of his 2007 complaint left the company. Further, the 2007 complaint is too far
removed from the adverse employment action to support an inference of causation.27
For a claim of discrimination to be a protected activity under Title VII, the claim must be
made in good faith and the discrimination must be based on a category protected under Title
VII.28 A claim of discrimination that does not state that the discrimination is based on a
protected category is not a protected activity under Title VII.29 Here, as Plaintiff admits, Plaintiff
internal complaint against Westerman on April 15, 2009, alleged that Westerman was unfairly
distributing company leads and stated that Westerman was discriminating against Plaintiff, but it
failed to allege that Westerman was discriminating against Plaintiff based on his race. Hawkins
and Westerman both state that they never understood that Plaintiff’s complaint alleged racial
discrimination, and Plaintiff can show no facts that suggest otherwise. Plaintiff’s complaint of
general discrimination, without more, does not qualify as protected activity under Title VII, so
27

Heiman v. United Parcel Serv., Inc., 12 F. App’x. 656, 665 (10th Cir. 2001) (“[A]n intervening period of
nearly six months is not sufficiently “close temporal proximity” such that an inference of causation is warranted
based on timing alone.”).
28

Anderson v. Acad. Sch. Dist. 20, 122 F. App’x. 912, 916 (10th Cir. 1004).

29

Id. (“[A] vague reference to discrimination and harassment without any indication that this misconduct
was motivated by race (or another category protected by Title VII) does not constitute protected activity and will not
support a retaliation claim.”); Wirtz v. Kansas Farm Bureau Serv., Inc., 274 F. Supp. 2d 1198, 1212 (D. Kan. 2003)
(“The court will find opposing activity if the employee’s comments, when read in their totality, oppose
discrimination. However, protected activity must oppose discrimination prohibited by Title VII, and not merely take
form of complaints about personal grievances.”).

10

Plaintiff has not made out his prima facie case of retaliation.
Further, even if Plaintiff could show he engaged in protected activity, he has not shown a
causal connection. A causal connection requires that the individual responsible for the adverse
action be aware of the protected activity,30 and in this case, Plaintiff has not offered any evidence
that the individual decision-maker knew of his protected activity. As noted, both Hawkins and
Westerman state that they never understood that Plaintiff’s complaint alleged racial
discrimination. And Plaintiff cannot even raise the inference of a causal connection; his inability
to meet sales goals and his disciplinary episodes both provide adequate reason for Defendant to
mark him as ineligible for rehire. Without showing a causal connection, Plaintiff cannot make
his prima facie case for retaliation, and Defendant is entitled to summary judgment.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Cross-motion for
Summary Judgment (Doc. 78) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 58)
is DENIED.
IT IS SO ORDERED.
Dated: March 1, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
30

Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993).

11

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