Lounds v. Lincare, Inc.

Filing 62

MEMORANDUM AND ORDER granting 48 Defendant's Motion for Summary Judgment. Signed by District Judge Richard D. Rogers on 7/9/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWRON LOUNDS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
LINCARE, INC.
Defendant.

Case No. 13-1091-RDR

MEMORANDUM AND ORDER
In this case, plaintiff makes claims alleging a hostile
work

environment

in

violation

of

42

U.S.C.

§

1981

and

retaliation in violation Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e.

Defendant has filed a motion for

summary judgment arguing that the evidence is not sufficient for
a reasonable jury to rule in plaintiff’s favor on either claim.
After careful review, the court agrees with defendant.
I.

SUMMARY JUDGMENT STANDARDS
Summary judgment is warranted if the materials on record

show that there is “no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.”

FED.CIV.P. 56(a).

The court considers “all of the facts

in the light most favorable to the non-movant and reasonable
inferences from the record must be drawn in favor of the nonmoving party.”
2007).

Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.

From this viewpoint, the court attempts to determine

whether a reasonable jury could return a verdict in favor of the
non-moving party.

Bones v. Honeywell Int’l, Inc., 366 F.3d 869,

875 (10th Cir. 2004).

“While we view the record in the light

most favorable to the non-moving party, that party must still
identify sufficient evidence requiring submission to the jury to
survive summary judgment.”

Piercy, 480 F.3d at 1197.

In other

words, the court may consider evidence produced by the moving
party as well as the absence of admissible evidence in favor of
an essential element of the non-moving party’s claim.

Adams v.

Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
“If the evidence [in support of a claim] is merely colorable, or
is

not

significantly

granted.”

probative,

summary

judgment

may

be

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

250 (1986)(interior citations omitted).

“[P]urely conclusory

allegations

devoid

of

particulars”

discrimination”

are

not

which

sufficient

to

are

avoid

of

“concrete

summary

judgment.

Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112,
119 (2d Cir. 2010)(interior quotations omitted); see also, Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)(nonmoving

party

must

set

forth

specific

facts

admissible

in

evidence from which a rational jury could find for non-movant).
“Unsubstantiated allegations carry no probative weight . . .
evidence, including testimony, must be based on more than mere
speculation, conjecture, or surmise.”
2

Bones, 366 F.3d at 875.

II.

UNCONTROVERTED FACTS
Plaintiff

is

an

African-American

woman

who

worked

for

almost a year as a customer service representative (CSR) for
defendant in Wichita, Kansas.
American

who

worked

at

Plaintiff was the only African-

the

Wichita

facility

during

her

employment with defendant.
Defendant
Defendant

is

has

headquarters

a

company

locations

is

in

providing

across

Clearwater,

the

respiratory

nation.

Florida.

Its

services.
corporate

Defendant’s

Wichita

facility had 17 or 18 employees, about four of whom were CSRs.
Defendant

had

smaller

offices

in

Winfield

and

Hutchinson,

Kansas.
The duties of a CSR are to answer phones, take and process
orders, maintain files, verify insurance and respond to patient
requests.

Attendance and punctuality are important.

Facility

managers have the discretion to determine whether the number of
work

absences

has

been

excessive.

Company

policy

does

not

dictate that a certain number of absences shall be considered
excessive.
Plaintiff was hired by Suzanne Kraft, defendant’s facility
manager

in

Wichita,

on

September

27,

2011.

Kraft

was

plaintiff’s direct supervisor.
Plaintiff received an employee handbook when she started.
The handbook contains defendant’s anti-discrimination and anti3

retaliation

policies,

reporting

procedures

and

disciplinary

policies.
Approximately
employment,

Greg

four

months

McCarthy,

a

visited the Wichita facility.

after

plaintiff

vice-president

began

for

her

defendant,

While he was there an employee

named Amber Renard, a Caucasian woman, complained during a staff
meeting that there had been inappropriate racial statements in
the workplace that made plaintiff uncomfortable. McCarthy met
with plaintiff one-on-one to discuss what happened.
after

the

meeting,

McCarthy

spoke

with

Immediately

defendant’s

employee

relations director (Paula Adams) and with a district manager for
the

Wichita

investigation.

office
The

(Jeremy
same

Felts)

day

Adams

regarding
spoke

a

follow-up

with

plaintiff

regarding her complaints.
During the January 27, 2012 conversation between plaintiff
and Adams, plaintiff complained of the following comments:
 That a co-worker named Laynee Kempke, a healthcare
specialist, said “Boom nigga” and “peace out my nigga”
in the workplace;
 That a co-worker named Kevin Kunz, a salesman, made a
comment about lynching;
 That Kunz also made a comment that Hitler would be
proud of him because of his blue eyes, but not his
black hair;
 That Kraft had told plaintiff to address McCarthy as
“yes massa;”

4

 That Kraft had asked her if she knew why black people
give their children names like “Roshonda.”
Plaintiff
replied “no” and said that she could not speak for
every black person. Kraft said that she asked because
plaintiff was black;
 That a co-worker named Nathan Van Dever asked
plaintiff if she smoked “Newports” and asked “Why do
black people always smoke Newports.”
After this conversation, Adams concluded that Kempke, Kraft
and

Kunz

should

statements.
written

be

and

immediate

because

of

the

alleged

On January 30, 2012, each one received a “final

warning”

policies

disciplined

that

that

any

termination.

their

actions

further
They

violated

violations

were

also

defendant’s

would

told

to

result
report

in
any

additional harassment if they observed it and they were reminded
of defendant’s policy against retaliation and told that, if they
appeared

to

terminated.

retaliate

against

plaintiff,

they

would

be

Also on January 30, 2012, Felts held a 10-minute

in-service training at the Wichita facility with the goal of
reminding

employees

policies.

Kraft

and

of

the

Kunz

company’s

were

not

anti-discrimination

present

at

the

training

session.
When McCarthy met with plaintiff on January 27, 2012, he
asked her to put everything in writing so that defendant could
address

her

labelled

a

allegations
“Memorandum

properly.
for

Record”

5

Plaintiff
to

the

sent
human

a

letter

resources

department on February 3, 2012. The “memorandum” contained the
following allegations:
 Around January 14, 2012, Kempke returned from seeing a
patient and loudly said, “I just came back from the
‘Hood’” then chanted “Boom” and “Boom Nigga.” One of
plaintiff’s co-workers then told her that before
plaintiff began employment for defendant, Kempke said,
“peace out my nigga.”
 Kraft made comments about plaintiff’s name (“Shawron”)
or asked about other African-Americans’ names.
 On January 17, 2012, Kraft was speaking at a staff
meeting that Nathan Van Dever (“Van Dever”) was
attending along with five women.
Kraft said to Van
Dever, “Nate do you feel like a minority[?]”
 At the same staff meeting on January 17, 2012, Kraft
told everyone they did not want to make McCarthy mad,
and to say yes to his every word.
Kraft then told
them to say, “Yes Massa” to him.
 A patient called in late October 2011, and after
plaintiff answered the phone, he threatened to kill
everyone in the office. When plaintiff reported this
to Kraft, Kraft said, “I’m sure you can give him
attitude.”
 Other employees witnessed Kraft referring to this
patient as a black man. Later, when the patient came
to the facility, Kraft said, “I thought he was a big
black man, no offense … he sounded mean and his name
sounded black” and “I can’t believe he was a white
guy.”
 On November 14, 2011, Kunz and Van Dever were
discussing a black man who had murdered his wife.
Kunz said, “we need to bring back lynching, because we
have enough trees.” Kunz then spoke about Vietnamese
people offensively and said they have bad teeth. Kunz
then disagreed with a co-worker that his comments were
racist, saying, “I’m not racist, and there was nothing
wrong with lynching.”
Kunz then approached plaintiff
and said, “I’m not trying to offend you, it’s not like
6

I said ‘lets go down [to] 9th and Grove (the Black
neighborhood) and drag every black person with a
noose, tie them to a truck, and drag them after
hanging them.”
 On January 26, 2012, Kunz said, “I never go in the
ghetto, the hood has gangsters,” then approached
plaintiff and said, “you know … the Hood.”
 Several workers (unidentified by plaintiff) approached
plaintiff by saying, “Yo! Yo whats up?” in a black
accent dialect.
 A patient made a remark about a picture of a garden
saying “I wonder how many slaves it took to keep that
garden pretty, and I wonder how many wetbacks it took
to pour water on them.”
Felts had said he would
remove the picture, but had not done so yet, and
plaintiff claimed the picture was a constant reminder
of the patient’s comments.
In

a

later

“Memorandum

for

Record”

dated

February

6,

2012,

plaintiff included allegations that:
 Kempke had “a habit of returning from seeing a black
patient and stating how she thought she would be
raped.
 Plaintiff’s co-workers had been giving her the cold
shoulder since she reported discrimination and that
there was extreme tension in the workplace.
Adams decided after reading plaintiff’s “memorandums” that
the

same

three

employees

who

received

warning

letters

were

involved in plaintiff’s new allegations and that the issues had
been

addressed

with

those

corrective action was needed.

employees

so

that

no

further

Adams also attempted to arrange a

telephone conference with plaintiff.

7

Before

such

a

phone

conference

was

arranged,

Karen

Schanbacher, a divisional manager and Felts’ direct supervisor,
had a mid-February 2012 meeting with plaintiff and Felts during
which plaintiff expressed her belief that she had not received
adequate

training.

During

the

meeting

Schanbacher

asked

plaintiff several times whether she had any other concerns that
Schanbacher could address.

Plaintiff did not report any new

racial comments in the workplace, but she did state that she
felt like the “big pink elephant in the room” and how she was
uncomfortable in the workplace.

Plaintiff also said that she

felt like her “spirit was gone.”

Schanbacher responded that

“you just need to go find it” and that plaintiff should not
worry when Kraft shut the door to her office while speaking with
plaintiff’s co-workers.
Adams spoke with plaintiff on March 6, 2012.

Plaintiff did

not report any new racial comments in the workplace, did not
allege that she had been subjected to retaliation, and did not
complain of a hostile work environment.
Linda
human
2012.

Feller,

resources

a

human

department,

resources
met

with

manager
plaintiff

in
on

defendant’s
March

14,

Plaintiff mentioned the same allegations she previously

raised, including the “pink elephant” feeling and her complaint
about the painting which drew hurtful remarks from a patient.
Feller had the painting removed.
8

But, plaintiff asserts via the

testimony of another employee that the painting was returned to
the same place a week later.

Plaintiff also complained that the

work environment was “awkward” and that employees would warn of
her presence by making such comments as “Watch what you say” and
“Shhh, here she comes.”

And, plaintiff said that when plaintiff

first started, Kraft commented that she would not hire a black
man

who

applied

for

employment

because

he

looked

“like

a

convict.”
Plaintiff filed a complaint with the Kansas Human Rights
Commission (KHRC) on April 6, 2012.
was

subjected

to

derogatory

It alleges that plaintiff

racial

comments,

slurs,

and

innuendoes, and that she was discriminated against on the basis
of her race.

Plaintiff, however, did not specifically describe

any new racial comments or statements in the workplace from
those already described in this opinion.
that

she

was

treated

in

a

demeaning

She simply alleged

manner,

ridiculed

and

teased.
Plaintiff received a “documented counseling” on April 26,
2012

which

absences.
prohibiting

described

an

excessive

number

of

unscheduled

It also reminded plaintiff of the company’s policy
texting

to

report

work

absences.

Plaintiff

had

missed a total of 16 days of unscheduled time as of that date.
Plaintiff was advised that further corrective action, including
termination, could occur if she did not demonstrate immediate
9

and sustained improvement.

Kraft and Felts and other corporate

officers collaborated in the decision to discipline plaintiff.
Doc.

No.

55,

p.

43.

But,

Kraft

delivered

the

“documented

counseling” and testified that it was her decision to discipline
plaintiff.

Plaintiff

responded

by

claiming

that

the

disciplinary action was retaliatory and that her supervisors and
co-workers were either participating in or failing to stop or
investigate

disparate

treatment

and

harassing

conduct.

Plaintiff had received an informal counseling prior to April 26,
2012.

The subject of the counseling was not recorded, but there

is testimony that it likely concerned absenteeism.
In early May 2012, plaintiff sent Kraft a text stating that
she

would

workplace.”

not

be

coming

to

work

because

of

a

“hostile

The text describes an incident the day before in

which Kevin Kunz slapped the leg of another employee.

The text

did not describe a racial motivation, but said that plaintiff
could not focus.

Plaintiff has also stated in her deposition

that she was worried that Kevin Kunz would “flip out” on her
because

he

would

pound

his

fist

around

the

workplace

and

complain about people running their mouths.
Plaintiff filed a second complaint with the KHRC on May 18,
2012.

This complaint alleges retaliation, but does not mention

any additional racial comments in the workplace.

10

On June 22, 2012, plaintiff received a “Documented Verbal
Warning” regarding her continued unscheduled absences.

Again,

plaintiff

report

was

absences.

reminded

not

to

send

text

messages

to

Felts and Kraft met with plaintiff regarding the

warning and Feller participated by phone.
plaintiff stated that:
this place.

During the meeting,

“There’s a lot of things going on with

I have doctor’s notes.”

Plaintiff was again warned

that she might be terminated if she did not achieve immediate
and sustained improvement in her attendance.
On July 16, 2012, plaintiff sent a “Rebuttal” to the human
resources
warning.

department

concerning

the

June

22,

2012

verbal

The “Rebuttal” complained that plaintiff was subjected

to disparate treatment when she was told that she should not
text her supervisor to report absences.
warnings

were

acts

employee

who

had

of

retaliation.

texted

disciplined for doing so.

to

report

It also stated that the
Jennifer

Llamas

absences

and

was
was

an
not

She testified in a deposition that

she believed other employees also texted to report absences.
Llamas left employment with defendant in March 2012.
Plaintiff
2012.

The

received
warning

a

Final

alleged

Written

that

Warning

plaintiff

on

had

July
too

24,
many

unscheduled absences and had made inappropriate statements to
her manager.
with plaintiff.

A meeting was conducted to go over the warning
Kraft and Felts attended the meeting and Feller
11

participated by phone.

Plaintiff mentioned that she felt like

the “pink elephant” in the office.

She further stated that when

somebody said “Boom,” she heard Kempke saying “Boom Nigga.”

She

also mentioned that Amber Renard had said “BON” to her every day
and that Kraft had heard Renard using the term but didn’t do
anything

about

it.

Kraft

denied

hearing

denied knowing what the term meant.
participation

in

Renard’s conduct.

the

meeting,

the

term

and

also

After Feller ended her

Felts

asked

plaintiff

about

Plaintiff said that one day Renard asked her

if she knew what a “BON” was because Renard’s boyfriend, who was
African-American, wanted Renard to call him a “Big ‘Ol Nigga.”1
Plaintiff also said that Renard had mentioned that her son’s
football

coach

had

made

a

comment

to

the

effect

that

“all

blackies are stupid.”
Kraft spoke with Renard about plaintiff’s allegations the
same day.

Renard gave a different version of events.

Renard

said that plaintiff asked Renard to say what “BON” meant and
that

Renard

did

not

use

the

“N”

word.

Renard

also

denied

relating the alleged statement from her son’s football coach.
Despite Renard’s explanation, Kraft gave Renard a final written
warning

stating

uncomfortable

that

environment

Renard’s
for

1

action

had

created

an

plaintiff

and

warning

of

In her deposition, plaintiff states that this is the only inappropriate
racial statement she recalled Renard making. Doc. No. 55, Exhibit B, pp. 7375 of deposition.

12

termination

if

there

were

any

defendant’s

anti-discrimination

additional

policies.

violations

Renard

was

of
also

warned against retaliating against plaintiff.
The

next

day,

July

25,

2012,

plaintiff

“rebuttal” to the counseling dated July 24, 2012.
alleged

that

the

counseling

was

an

act

of

addressed

a

The statement

retaliation

and

referred to “verbal abuse and negative racial overtones that I
have to endure on a daily basis.”
On July 27, 2012, plaintiff’s mental health counselor, Dr.
Joseph

Donaldson,

sent

a

letter

to

plaintiff

stating

that

plaintiff had been subjected to “an ongoing onslaught of verbal
abuse

and

harassing

racial

comments,

slurs,

epithets,

and

innuendos” and “blatant racist verbal attacks and threats” in
the workplace.

Plaintiff had started seeing Dr. Donaldson on

June 13, 2012.
On

September

defendant.

24,

Defendant

2012,

plaintiff

listed

the

cause

was

terminated

by

of

termination

as

“ongoing, excessive absenteeism,” noting that since plaintiff’s
hire

date

she

had

missed

34

full

days

of

majority” of which were unscheduled absences.

work,

the

“vast

Plaintiff had

missed seven more days of work after her final written warning
on July 24, 2012.

Plaintiff has alleged that seven of her

absences were because of visits to Dr. Donaldson and that three
absences were scheduled days off.
13

On October 3, 2012, plaintiff responded to her termination
with

a

letter

Plaintiff
retaliation.

to

generally

defendant’s
alleged

human

resources

racial

department.

discrimination

and

More specifically, she stated:

 That on her first day at work, Suzanne Kraft
interrupted plaintiff as she stated her name and said
that Kraft thought plaintiff’s name was “[S]ha-neanea” or “Shaquitia”;
 That she was subjected to hearing co-workers say “Boom
Nigga” and that the word “Boom” was used around the
office to humiliate plaintiff;
 That Kraft and others would ask if she lived in the
ghetto, address her using slang words stereotypical of
African-Americans,
and
that
Kraft
would
advise
plaintiff and others to address corporate officials as
“Yes Massa”;
 That Kraft asked her to deal over the phone with an
irate customer because Kraft thought (wrongly) that
the customer was black and Kraft was afraid to
interact with him;
 That she never received proper training in spite of
numerous requests for training;
 That she felt extreme tension in the workplace, “the
cold shoulder,” and a hostile work environment because
of her complaints or because a co-worker (Amber
Renard) raised a concern regarding racial comments on
the job;
 That she was concerned about Kevin Kunz who had made
the lynching and Hitler comments and engaged in
slapping and punching as horseplay.
Plaintiff said
she felt uncomfortable around him because Kunz would
say he was crazy and forgot to take his meds;
 That the various incidents mentioned in her letter
were “a small fraction of the situations that took
place;”
14

 That her health suffered because of the conditions she
endured at the workplace;

During her deposition, plaintiff was asked to identify what
she considered improper racial comments at the workplace.

In

addition to comments already identified, plaintiff listed the
following:
 A co-worker, Becky Roettering, said her car was “a
black boy;”
 Kevin Kunz asked plaintiff what “skeet skeet” meant in
rap songs;
 Kevin Kunz said that Nicki Minaj, a black female
rapper, had a great body and asked plaintiff what she
thought;
 Suzanne Kraft would say “I’s be’s getting” or “You’s
be’s getting” and look at plaintiff and laugh;
 Kraft asked plaintiff if she spoke Ebonics and asked
if plaintiff ever looked at the “urban dictionary;”
 Kraft apologized to plaintiff and said that Kraft had
six black cousins;
 Kraft would tell plaintiff to “get ghetto” or “give
attitude” to some patients who called;
 Kempke also would tell plaintiff to “get ghetto;”
 Kraft would make plaintiff take calls from a certain
customers who had complaints if Kraft believed the
customer was African-American;
 Kraft made a comment to plaintiff about checks coming
up missing;
 Plaintiff was asked by an employee if her hair was
real or a weave; and

15

 A co-worker, Nathan Van Dever,
black people smoke Newports;
When

plaintiff

was

deposed,

she

asked

alleged

plaintiff

that

why

defendant

retaliated against her in the following ways:
 Her work was scrutinized more;
 People started to make a mess, like food wrappers, at
her desk;
 Kraft would go into
plaintiff’s files;

her

cubicle

and

rearrange

 Roettering told her that she messed up orders or put
in the wrong code, when she had made no mistake;
 Roettering would tell her that she could go to
Winfield to train, but would never actually let her
go;
 Roettering had another CSR redo plaintiff’s folders
and then, when files were missing, would blame
plaintiff;
 Roettering forged plaintiff’s name on a work order;
 Defendant began to make an issue out of her absences
and complained about her work;
 When plaintiff walked into meetings, people would say,
“Shh, be quiet or you might get HR called on you,” and
would not say anything around her.

III.
A REASONABLE JURY WOULD NOT FIND THAT PLAINTIFF’S WORK
ENVIRONMENT MET THE OBJECTIVE STANDARD OF A HOSTILE WORK
ENVIRONMENT.
A.

Standards

The Tenth Circuit has stated that the elements of a hostile
work environment claim under § 1981 are the same as those under
Title VII.

See Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th
16

Cir. 1997); see also Tademy v. Union Pacific Corp., 614 F.3d
1132, 1152 (10th Cir. 2008)(referring to Title VII standards when
discussing § 1981 hostile work environment claim).
court

will

refer

to

Title

VII

cases

in

some

So, the

instances

when

discussing plaintiff’s hostile work environment claim.
The issue raised by defendant’s summary judgment motion is
whether plaintiff’s work environment was objectively hostile and
offensive.

This is a required element for making a hostile work

environment claim.
654, 664 (10th

Morris v. City of Colorado Springs, 666 F.3d

Cir. 2012).

We must examine “’the objective

severity of the harassment from the perspective of a reasonable
person

in

plaintiff’s

position,

considering

all

the

circumstances.’” Id., quoting Harsco Corp. v. Renner, 475 F.3d
1179,

1187

suggested

(10th
for

Cir.

2007).

consideration

Some
are:

factors
“’the

which

have

been

of

the

frequency

discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether

it

unreasonably

performance.’”

interferes

with

an

employee’s

work

Id. quoting, Chavez v. New Mexico, 397 F.3d 826,

832-33 (10th Cir. 2005).

The court must determine whether the

alleged harassment was pervasive or severe.

Id. at 663.

To survive summary judgment, a plaintiff “must show that a
rational jury could find that the workplace [was] permeated with
discriminatory intimidation, ridicule, and insult, that [was]
17

sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment
and that the victim was targeted for harassment because of her
race or national origin.”

Hernandez v. Valley View Hosp. Ass’n,

684 F.3d 950, 957 (10th Cir. 2012)(interior quotations omitted);
see also, Sandoval v. City of Boulder, Colo., 388 F.3d 1312,
1326-27 (10th Cir. 2004).

“[R]un-of-the mill boorish, juvenile,

or annoying behavior that is not uncommon in American workplaces
is not the stuff of a Title VII hostile work environment claim.”
Morris, 666 F.3d at 664.
In Hernandez, the Tenth Circuit quoted O’Shea v. Yellow
Tech. Servs., Inc,, 185 F.3d 1093, 1098 (10th Cir. 1999) for the
proposition that “the severity and pervasiveness evaluation [of
a hostile work environment claim] is particularly unsuited for
summary judgment because it is quintessentially a question of
fact.”

684 F.3d at 957.

Nevertheless, on multiple occasions

the Tenth Circuit has affirmed summary judgment granted at least
partially
evaluation.

on

the

basis

of

a

severity

and

pervasiveness

E.g., Morris, 666 F.3d at 665-666; Faragalla v.

Douglas County School Dist., 411 Fed.Appx. 140, 153-54 (10th Cir.
2011); Nettle v. Central Oklahoma American Health Council, Inc.,
334 Fed.Appx. 914, 921-26 (10th Cir. 2009); MacKenzie v. City and
County of Denver, 414 F.3d 1266, 1281 (10th Cir. 2005).

18

The

Tenth

Circuit

has

stated

that

a

hostile

work

environment generally entails a “steady barrage of opprobrious
racial comments.”

Herrera v. Lufkin Indus., Inc., 474 F.3d 675,

680 (10th Cir. 2007)(quoting Chavez, 397 F.3d at 832); Ford v.
West, 222 F.3d 767, 777 (10th Cir. 2000)(quoting Bolden v. PRC
Inc., 43 F.3d 545, 551 (10th Cir. 1994)).

According to the

Oxford English Dictionary, “opprobrious” means expressing scorn;
vituperative;

reproachful;

shameful.

The

Merriam-Webster

Dictionary includes “scurrilous” as one of the definitions.
Hernandez,
judgment

the
in

a

Tenth
case

Circuit

overturned

involving

“at

a

grant

least

a

of

dozen

In

summary
racially

offensive comments and jokes” over a period of fourteen months.
In Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408,
1414-15 (10th Cir. 1997), the Tenth Circuit held that evidence of
six

sexually

derogatory

statements

over

twenty-three

months,

some repeated frequently, was sufficient to support a finding of
pervasive harassment.
B. A reasonable jury would not find the alleged harassment
to be sufficiently severe to sustain a claim of hostile work
environment.
After

careful

consideration,

the

court

easily

concludes

that the alleged offensive statements or actions were not so
severely
would
With

offensive

find
the

that

or

discriminatory

plaintiff’s

possible

exception

working
of
19

that

a

reasonable

conditions

fist-pounding

were

by

jury

abusive.

Kevin

Kunz,

which

was

not

expressly

directed

at

plaintiff

and

appeared

isolated in frequency, there were no threatening or menacing
words

or

actions

directed

at

plaintiff.

There

opprobrious insults or epithets pointed at plaintiff.

were

no

Also, the

alleged racial comments made to plaintiff were not made with
animosity or scorn.
not

so

severe

environment.

or

The court finds that the fist-pounding was
prevalent

that

it

created

a

hostile

work

The closer question raised in this case is whether

the alleged offensive statements or actions in total were so
pervasive that a reasonable jury would consider plaintiff’s work
environment to be hostile or abusive.
C. A reasonable jury would not find the alleged harassment
to be sufficiently pervasive to sustain a claim of hostile work
environment.
1.
There

Facially race-neutral statements or actions

are

some

allegedly

offensive

comments

or

actions

which the court does not consider racially offensive on their
face.

The comment which Suzanne Kraft made to Nathan Van Dever,

“Do you feel like a minority,” is not racially offensive.
the

statement

was

made,

attendance at a meeting.

Van

Dever

was

the

only

When

male

in

Also, Kraft’s apology to plaintiff and

her statement that Kraft has six black cousins is not racially
offensive.

Likewise,

a

statement

that

Nicki

Minaj

attractive woman is not a racially offensive statement.

is

an

Also,

slapping a woman’s leg and pounding one’s fist are not racially
20

offensive

actions

in

the

context

described

in

the

record.

Kunz’s comment that he was crazy and forgot to take his meds
also is not racially offensive.

The question as to whether

plaintiff’s hair was a weave and the statement that checks had
turned up missing also appear to be race-neutral.

Finally, the

Hitler remark seems boorish, but not racially offensive.
Nevertheless, the court shall consider all of these remarks
in our analysis because “’[f]acially neutral abusive conduct can
support a finding of [racial] animus sufficient to sustain a
hostile work environment claim when that conduct is viewed in
the

context

of

other,

overtly

[racially]-discriminatory

conduct.’”

Hernandez, 684 F.3d at 960 (quoting O'Shea, 185 F.3d

at 1097).

In our view, none of the comments or actions (viewed

objectively) occurred so frequently or were so abusive as to add
significantly to a hostile work environment claim.
2. Racial comments or actions
Plaintiff was upset by questions which implied that, as an
African-American, plaintiff was an authority who could or should
answer questions white people had about black people.

Van Dever

asked plaintiff why black people always smoked Newports.

Kraft

asked plaintiff why black people give their children names like
Roshonda.

Kraft also asked about plaintiff’s name.

Kraft asked

plaintiff if she spoke ebonics and if plaintiff ever looked at
the “urban dictionary.”

Kunz asked plaintiff what “skeet skeet”
21

meant in rap songs.

The court believes a reasonable person

could find this annoying, but not more than annoying.

While

this is not a role that plaintiff wanted, it is not unusual in
the workplace for a person to be asked questions (sometimes
stupid questions) related to that person’s perceived background
or experience.

See Bradley v. Allegiance Health Management,

Inc.,

4479304

2011

WL

*7

(E.D.Ark.

9/28/2011)(questioning

plaintiff as to why black women have children without being
married

is

not

sufficient

to

create

a

racially

hostile

environment)
Plaintiff
presence

to

also
the

took

offense

“ghetto”

or

to

references
“hood”

the

made
a

as

in

her

dangerous

neighborhood with “gangsters” that her white co-workers did not
like to visit because of a fear of crime.
taken

as

racially-tinged

pejoratives.

These terms may be

See

Turner

v.

Baylor

Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007)(calling
inner-city children “ghetto children” inappropriate, but along
with

other

comments

environment).
specifically
friends.

not

The
to

do

sufficient

statements

with

plaintiff

to

find

apparently
or

a

hostile
had

plaintiff’s

work

nothing
family

or

There are crime-ridden neighborhoods which people may

feel uncomfortable visiting.

Sometimes, such neighborhoods are

labelled as “ghettos” or the “hood.”

If the references to going

to the “ghetto” or the “hood” were made mockingly as a racial
22

slight, then a reasonable jury would consider them offensive.
If

the

statements

were

a

sincere

expression

of

unease,

a

reasonable jury could find them slightly offensive in the manner
they were worded.
comments

were

Here, the record does not suggest that the

directed

to

embarrass

or

aggravate

plaintiff.

Plaintiff also complains that she was asked if she lived in the
“ghetto.”

A reasonable jury might consider this question to be

racially offensive and annoying.
Given

its

context,

the

“lynching”

comment

considered mildly offensive by a reasonable jury.

would

be

The record

indicates that the comment was made in regard to a crime where a
black man had murdered his wife.

The victim was an acquaintance

of someone who worked in the office.

The co-worker who made the

comment appealed to plaintiff that he was not a racist and was
not trying to offend plaintiff.

It is not uncommon for people

to voice a desire to take short-cuts towards “justice.”

While

many people would criticize the statement for good reasons, a
reasonable jury would not consider the comment, in this context,
to be more than mildly offensive.
Plaintiff has stated that she was offended when co-workers
would say “Yo, what’s up,” when Kraft told her subordinates to
say “Yes, massa,” to a visiting corporate officer, and when
Kraft would say “I’s be getting’” or “You’s be getting.”

At

worst,

or

these

comments

could

be
23

considered

as

annoying

obnoxious

by

a

reasonable

jury.

But

see

Widermyre

v.

Transamerica Commercial Fin. Corp., 1995 WL 688709 *3 (N.D.Ill.
11/17/1995)(finding that “yo” and other “hip-hop” phrases were
not facially racist).

They were not directed solely toward

plaintiff and there’s no indication that their purpose was to
insult or ridicule plaintiff.

The “yes, massa” suggestion was

more of a poorly-stated directive by Kraft to be obsequious
towards

a

corporate

executive

than

an

effort

to

offend

plaintiff.
The phrases “boom nigga” and “peace out my nigga” could be
considered racially offensive by a reasonable jury.
v.

Wal-Mart

Stores,

Inc.,

440

F.3d

1031,

1035

See Canady
(8th

Cir.

2006)(“What’s up, my nigga” and several other racial comments
were offensive, but insufficient to meet threshold of a hostile
work environment); see also, Fair v. Basic Metals, Inc., 2007 WL
1847282

*7

(E.D.Wis.

6/26/2007)(finding

that

context

can

be

important in analyzing the use of the term “nigga”); but see
Tyrrell v. Oaklawn Jockey Club, 2012 WL 5397610 *4 (W.D.Ark.
11/2/2012)(non-derogatory use of n-word was coarse jesting and
did not create a hostile work environment).
sting

of

context.

these

statements,

however,

is

The potential

mitigated

by

their

The “boom nigga” statement was made in plaintiff’s

presence, but not made directly to plaintiff or for the purpose
of offending plaintiff.

The “peace out” statement was not made
24

in

plaintiff’s

employee.

presence,

but

she

heard

of

it

from

another

The statements were not hostile in the sense of being

intentionally antagonistic or scornful.

And they are attributed

to one co-worker, not multiple co-workers.
Plaintiff was offended because she was asked by Kraft to
deal with an irate customer who Kraft perceived (wrongly) to be
black.

Kraft suggested that plaintiff give the customer some

“attitude” or “get ghetto” with him.

It is not entirely clear

on the record whether this occurred with one client or whether
Kraft encouraged plaintiff to deal with other black customers
because plaintiff was black.

While a reasonable jury might

consider this slightly offensive, the court does not believe a
reasonable jury would consider it as derogatory or abusive.

See

Blount v. Southwest Oklahoma Juvenile Center, 2012 WL 6045911
*11 (W.D.Okla 12/5/2012)(statements that plaintiff would be able
to

relate

to

African

American

juveniles

is

not

racially

hostile); see also, Miller v. Coca-Cola Enterprises, Inc., 178
Fed.Appx. 583, 585 (8th Cir. 2006)(statement that black drivers
had “attitude” and other remarks not sufficient to create a
hostile work environment); Vasquez v. County of Los Angeles, 349
F.3d

634,

643

(9th

Cir.

2003)(reference

to

“typical

Hispanic

macho attitude” and other remarks not sufficient to create a
hostile work environment).

25

When plaintiff was first hired, Kraft remarked that she had
recently turned down a job applicant who was black because he
looked like a convict.

Kraft also misstated plaintiff’s first

name when she introduced plaintiff to the office after plaintiff
was hired.

Kempke made the comment one time that she thought

she’d be raped by a black patient.

These isolated comments

could be considered offensive by a reasonable jury, although
there is no evidence that the statements were made to insult or
antagonize plaintiff.
Plaintiff was bothered by a patient’s comment regarding a
picture

of

a

garden

at

plaintiff’s

workplace.

The

patient

wondered aloud how many slaves and “wetbacks” had tended the
garden.

A reasonable jury could find this comment marginally

offensive.
obviously

It was unpleasant, but not abusive.
was

not

made

by

an

employee

of

The comment

defendant.

apparently was not intended to demean plaintiff.

It

The comment

was an isolated event, although the picture continued to remind
plaintiff of the comment.
3.

Frequency of alleged discriminatory conduct

Our analysis must consider the frequency of the alleged
discriminatory conduct.
and

isolated

incidents

“[S]imple teasing, offhand comments,
(unless

extremely

serious)

will

not

amount to discriminatory changes in the terms and conditions of
employment.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788
26

(1998)(interior
environment

…

quotations
typically

omitted).

comprises

a

“A
succession

hostile
of

work

harassing

acts, each of which may not be actionable on its own.

In

addition, a hostile work environment claim cannot be said to
occur on any particular day.

In other words, the actionable

wrong is the environment, not the individual acts that, taken
together, create the environment.”

Ledbetter v. Goodyear Tire &

Rubber Co., Inc., 550 U.S. 618, 638 (2007)(interior citations
and quotations omitted); see also Hicks v. Gates Rubber Co., 833
F.2d 1406, 1415 (10th Cir. 1987)(general work atmosphere is an
important factor).

So, the court must consider not only the

frequency of each described incident of misconduct but also the
entire series of incidents.
Most of the incidents alleged by plaintiff were one-time
utterances

by

different

individuals

which

occurred

prior

to

January 27, 2012, the date when plaintiff first complained to a
supervisor.

Plaintiff asserts that Kempke used the term “boom

nigga” more than once and made a habit of referring to the
“ghetto” or the “hood.”2

Plaintiff also asserts that several

2

Jennifer Llamas testified that Kempke used the “N” word a couple of times
and that Kempke would not call somebody the “N” word. Doc. No. 55-5, pp. 2324 of deposition. She also testified that the use of the term diminished in
the office and that Llamas never heard Kempke say it after plaintiff
complained. Id. at p. 45 of deposition. She stated that Kempke would often
refer to the “ghetto.”
Id. at p. 25 of deposition.
Llamas also testified
that Renard would always use the “N” word, but she did not recall the “BON”
term. Id. at pp. 26 & 36 of deposition. According to Llamas, Renard would
not call anybody the “N” word. Id. at pp. 26-27 (“[S]he was a white girl but
she would kind of talk in that kind of slang and demeanor, because . . . she

27

workers said “yo.”

Most of the alleged offensive utterances

would be considered by a reasonable jury to be insensitive as
opposed to vituperative, demeaning, scurrilous, or insulting.
The court believes the series of statements complained of by
plaintiff could not reasonably be considered to amount to a
steady barrage of opprobrious comments.
After January 27, 2012 and plaintiff’s complaints to her
supervisors, disciplinary action was taken against Kraft, Kunz
and Kempke on January 30, 2012.

Plaintiff makes few specific

allegations of offensive statements occurring after that date.
Plaintiff has alleged that Becky Roettering said her car was a
“black

boy.”

A

reasonable

jury

would

not

statement as more than nominally offensive.

consider

this

It was also after

January 27, 2011 that Amber Renard allegedly discussed the term
“BON”

and

her

African-American

boyfriend

with

plaintiff,

and

said (according to plaintiff) that a football coach made the
remark that “all blackies are stupid.”
they

were

plaintiff

made,
with

antagonizing
discipline

are
the

not

intent

plaintiff.
shortly

alleged

after

of

to

These comments, assuming
have

degrading

Renard

and

plaintiff

been
or

Kraft

directed

at

ridiculing

or

also

complained

received
of

these

statements.

hung around with those kind of people too, and so she just kind of, you know,
conformed to how . . . they acted.”).

28

In

general,

the

parts

of

the

record

which

indicate

a

persistent or pervasive use of potentially abusive terminology
are conclusory allegations which are insufficient to support a
claim of a succession of harassing acts or of an environment
permeated with opprobrious comments or ridicule.

See Nettle,

334 Fed.Appx. at 922-23; Muragara v. Mackenzie Place Union, LLC,
2014 WL 334640 *5 (D.Colo. 1/30/14); Powell-Pickett v. AK Steel
Corp., 904 F.Supp.2d 767, 776 (S.D.Ohio 2012); Walker v. Miss.
Delta Com’n on Mental Health Illness & Mental Retardation, 2012
WL 5304755 *7-8 (N.D.Miss.10/25/12).
C. A reasonable jury would not consider
environment as a whole to be hostile or abusive.
The

court

has

considered

plaintiff’s

before and after January 27, 2011.

work

the

work

environment

The court concludes that a

reasonable jury could not conclude that plaintiff was made to
suffer
remarks

an

abusive

and

working

actions

were

environment
so

or

that

negative

and

the

offensive

insulting

or

humiliating that they created a discriminatory working condition
or a hostile work environment.

The court is not endorsing the

comments and has indicated that in many instances a reasonable
person could find them annoying or obnoxious or offensive.

But,

it is commonly stated that a hostile work environment claim is
not intended to enforce a general code of civility (Faragher,
524 U.S. at 788) and that it is intended as a remedy for a

29

workplace

permeated

with

racial

opprobrium

intimidation, ridicule and insult.
956-57.

or

discriminatory

See Hernandez, 684 F.3d at

This was not a scornful, vituperative atmosphere.

The

statements were not obscene, profane or personally demeaning or
degrading.

Several

statements

insensitive or annoying.

were

mildly

offensive,

But, few if any could reasonably be

considered disgraceful or shameful.
Also,
directed

many
at

statements

plaintiff.

which
This

upset

makes

such

indicative of a hostile work environment.
Services,

Inc.,

590

F.Supp.2d

addition,

efforts

were

discipline

against

those

made
who

54,
to

plaintiff

76

not

statements

less

Harris v. Wackenhut
(D.D.C.

2008).

investigate

made

were

offensive

and

In

enforce

remarks.

These

actions would diminish the chance that a reasonable person might
consider the alleged racial commentary to be a condition of
employment as opposed to a violation of company policy.
We
receiving

acknowledge
the

cold

that

plaintiff

shoulder

from

has

other

also

complained

employees

after

of
she

complained about her working conditions and certain employees
received discipline.

Most courts, however, find that ostracism

or shunning fails to satisfy the objective test of an abusive
work environment. See Clay v. Lafarge North America, 2013 WL
6250776
also,

*12

Johnson

(S.D.Iowa
v.

Weld

2/13/2013)(citing
Cnty,

594
30

F.3d

several
1202,

cases);

1216

(10th

see
Cir.

2010)(supervisors

giving

employee

the

“cold

shoulder,”

not

answering questions, and avoiding the employee not sufficient to
support retaliation claim); Willey v. Slater, 20 Fed.Appx. 404,
405-06 (6th Cir. 2001)(same);

Melin v. Verizon Business, Inc.,

2014 WL 978813 *11 (D.Kan. 3/12/2014)(allegations of ostracism
and lack of coworker support do not rise to level necessary to
support retaliation claim); Jones v. Wichita State Univ., 528
F.Supp.2d 1182, 1193 (D.Kan. 2007)(cold shoulder treatment not
materially adverse for purposes of a retaliation claim); Bozeman
v.

Per-Se

Technologies,

Inc.,

456

F.Supp.2d

1282,

1345-46

(N.D.Ga. 2006)(same, citing several cases); Martin v. Merck &
Co., 446 F.Supp.2d 615, 639 (W.D.Va. 2006)(same).
D.

Summary

In summary, the court has considered the various statements
and actions which plaintiff alleges constituted a hostile work
environment.
jury

The court agrees with defendant that no reasonable

considering

the

evidence

in

a

light

most

favorable

to

plaintiff, would find that the objective standard for a hostile
work environment is satisfied.
IV.
THE ALLEGED RETALIATORY ACTIONS AGAINST PLAINTIFF EITHER
WERE NOT “MATERIALLY ADVERSE” OR WERE NOT CAUSED BY PLAINTIFF’S
PROTECTED ACTIVITY.
“To make out [a] prima facie case [of retaliation], [a
plaintiff] must show 1) ‘she engaged in protected opposition to
discrimination, 2) a reasonable employee would have considered
31

the challenged employment action materially adverse, and 3) a
causal connection existed between the protected activity and the
materially adverse action.’”

Daniels v. United Parcel Service,

Inc., 701 F.3d 620, 637-38 (10th Cir. 2012) quoting, Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008).

A

plaintiff making a retaliation claim “must establish that his or
her

protected

activity

was

a

but-for

adverse action by the employer.”

cause

of

the

alleged

Univ. of Texas Sw. Med. Ctr.

v. Nassar, 133 S.Ct. 2517, 2534 (2013).
Defendant’s
plaintiff’s
elements.

arguments

retaliation

for

claim

summary

focus

on

the

judgment
second

against
and

third

First, defendant contends that many of the alleged

retaliatory actions do not rise to the level of a “materially
adverse” job action and therefore, do not provide a cognizable
basis

for

a

retaliation

claim

under

Title

VII.

Second,

defendant contends that those disciplinary actions which were
“materially adverse” were not motivated or caused by plaintiff’s
protected activity.

Defendant does not dispute that plaintiff

engaged in protected activity.
A.
Many of the alleged retaliatory actions
reasonably be considered “materially adverse.”

could

not

Plaintiff has cited the following alleged conduct as part
of the basis for her retaliation claim:
 Her work started to be more scrutinized;

32

 People started to make
leaving food wrappers;

a

mess

at

her

desk

–

like

 Her files would be rearranged by others;
 She was accused of making coding mistakes that she did
not actually make;
 She was told she could go to Winfield for training,
but never actually allowed to go;
 Her folders were redone by others and then when files
were missing, she would be blamed;
 Her name was forged on a work order;
 Defendant started to make an issue out of her absences
and the quality of her work; and
 Co-workers would say, “shh, be quiet or you might get
HR called on you,” or not say anything around
plaintiff, when plaintiff walked into meetings.

Plaintiff has also asserted that the discipline she received
because

of

her

alleged

materially

adverse

job

conduct.

Defendant

excessive

actions

does

not

in

absenteeism
retaliation

dispute

that

constituted

for

protected

plaintiff’s

job

discipline and termination were materially adverse job actions
for the purposes of this motion.
The Supreme Court has stated that an individual is not
protected

from

“all

retaliation,”

but

is

protected

from

retaliation that produces “an injury or harm” which reaches a
level of seriousness such that it “well might have dissuaded a
reasonable

worker

discrimination.”

from

making

or

supporting

a

charge

of

Burlington N. & Santa Fe Ry. Co. v. White, 548
33

U.S.

53,

67-68

(2006)

(interior

quotation

omitted).

Such

actions must be more than “trivial harms” and must go beyond the
“petty slights or minor annoyances that often take place at work
and that all employees experience.”

Id.

A “materially adverse”

action is a more lenient standard than an “adverse employment
action.”

Piercy, 480 F.3d at 1203 n. 12.

In Semsroth v. City

of Wichita, 555 F.3d 1182, 1184-85 (10th Cir. 2009), the Tenth
Circuit emphasized that deciding whether an employer’s actions
are

“materially

requires

an

adverse”

objective

is

a

inquiry

case-specific
that

does

exercise
not

which

turn

on

a

plaintiff’s personal feelings.

In making a decision, the court

is

“’constellation

obliged

to

consider

circumstances,
United

expectations

Airlines,

2009)(quoting
omitted)).

the

Inc.,

White,

and

355

548

relationships.’”

Fed.Appx.

U.S.

of

at

169,

69

183

surrounding
Barone
(10th

(interior

v.
Cir.

quotation

In addition, “to succeed on a retaliation claim

based on a hostile work environment, a Title VII plaintiff must
present evidence that “the workplace [was] ... permeated with
discriminatory

intimidation,

ridicule,

and

insult,

that

is

sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment.”
McGowan v. City of Eufala, 472 F.3d 736, 743 (10th Cir. 2006).
Because
cited,

the

of

the

court

reasons

does

not

and

the

believe
34

a

case

authority

reasonable

already

jury

could

conclude

that

a

hostile

work

environment

purposes of plaintiff’s retaliation claim.

existed

for

the

The court further

concludes that the other alleged retaliatory acts (outside of
plaintiff’s job discipline and termination) could not reasonably
be

considered

as

materially

adverse.

The

record

does

not

contain facts which demonstrate that the effect of all of the
non-disciplinary actions complained of by plaintiff would deter
a reasonable person from filing a discrimination complaint or
engaging in other protected activity.

See Daniels, 701 F.3d at

640 (professional isolation and drop in communications are not
materially adverse actions); Keller v. Crown Cork & Seal USA,
Inc., 491 Fed.Appx. 908, 914 (10th Cir. 2012)(strict application
of policies and increased supervision are not materially adverse
actions); Littleton v. Pilot Travel Centers, 568 F.3d 641, 644
(8th

Cir.

establish

2009)(falsely
prima

facie

reporting
case

of

poor

performance

retaliation

absent

does

not

showing

of

materially adverse consequences to employee); McGowan, 472 F.3d
at 743-44 (petty criticism is not a materially adverse action);
Wooyoung

Chung

6/11/14)(false

v.

Berkman,

allegations

2014

WL

regarding

2611837
work

*13

(N.D.Ohio

on

computer

application, not materially adverse); Rodriguez v. Hudson Square
Pharmacy, LLC, 2012 WL 3195554 *6 n.13 (S.D.N.Y. 8/2/2012)(false
accusation of causing a register shortage is not an adverse
employment action); Rogers v. Apria Healthcare, Inc., 2013 WL
35

3773838

*13

n.15

(D.Kan.

7/17/13)(failure

to

train

not

a

materially adverse action); Armstead v. Wood, 2012 WL 2298495 *6
(D.Colo. 6/15/2012)(false accusation of causing submission of
untimely

and

incorrect

reports

is

not

an

adverse

employment

action); Rhone v. U.S. Capitol Police, 865 F.Supp.2d 65, 70-71
(D.D.C. 2012)(untruthful remarks regarding job performance are
not materially adverse job actions); Brenna v. Salazar, 2010 WL
582357

*13-14

materially

(D.Colo.

adverse

2/17/10)(failure

action);

Mitchell

v.

to
Qwest

train

not

a

Communications

Int’l, Inc., 2007 WL 4287499 *4-5 (D.Colo. 12/4/07)(nitpicking,
shortness and rudeness, not materially adverse actions).
B.
A reasonable jury would not find on this record that
plaintiff’s job discipline and termination were caused by
plaintiff’s protected activity.
As stated earlier, defendant contends that plaintiff cannot
demonstrate a causal connection between her protected activity
and the disciplinary actions taken against by defendant.

Given

the

these

absence

of

direct

evidence

of

retaliation

as

to

alleged actions, a burden-shifting framework of analysis should
be applied to determine whether there is a material issue of
fact that illegal retaliation caused these alleged actions to
occur.

See Hinds, 523 F.3d at 1201.

Plaintiff bears a burden

of production to establish a prima facie case of retaliation.
Id. at 1201-02.

36

Here, plaintiff has presented facts indicating a temporal
relationship

between

plaintiff’s

protected

disciplinary actions taken against her.
sufficient

to

produce

a

prima

activity

and

the

Assuming that this is

facie

case

of

retaliation,3

defendant has set out evidence that the disciplinary actions
were taken because her supervisors believed plaintiff was too
often absent from work.

Therefore, plaintiff has the burden to

produce evidence demonstrating a genuine issue of material fact
exists as to whether this justification is merely a pretext for
illegal retaliation.

See Macon v. United Parcel Service, Inc.,

743 F.3d 708, 713 (10th Cir. 2014).

“Such a showing, so long as

it

to

would

allow

a

reasonable

jury

find

the

discharge

pretextual, entitles the plaintiff to proceed to trial.”
Plaintiff
reasons

must
for

present

evidence

disciplining

and

that

defendant’s

terminating

plaintiff

was
Id.

proffered
are

so

incoherent, weak, inconsistent or contradictory that a rational
factfinder could conclude the reasons are unworthy of belief.
Hinds, 523 F.3d at 1197 (quoting Young v. Dillon Cos., Inc., 468
F.3d 1243, 1250 (10th Cir. 2006)).
Plaintiff has set forth no information directly indicating
that

defendant’s

discipline

and

claim

of

termination

valid
of

business

plaintiff

3

is

reasons

for

incoherent,

its
weak,

The Tenth Circuit has stated that “temporal proximity is sufficient to
establish a prima facie case, but not to establish pretext, because the
evidentiary burden is different.”
Proctor v. United Parcel Serv., 502 F.3d
1200, 1213 n.6 (10th Cir. 2007)(emphasis added).

37

inconsistent or contradictory.

Plaintiff does not deny that she

was absent when defendant alleges, but she suggests that some of
her absences either were or should have been excused because
they

related

to

conditions.
important.
similar

the

stress

Plaintiff

she

does

suffered

not

deny

from

that

her

working

attendance

was

Plaintiff does not contend that other employees had

attendance

records

but

were

retained

by

defendant.

Indeed, a former employee who was absent often, but not quite as
frequently

as

plaintiff,

was

also

terminated

by

defendant.4

Finally, plaintiff does not allege that there is evidence which
directly

contradicts

defendant’s

purported

reasons

for

reasonable

jury

disciplining and terminating plaintiff.
Nevertheless,

plaintiff

contends

that

a

could find the defendant’s alleged ground for disciplining and
terminating

plaintiff

following points.

is

pretextual

on

the

basis

of

the

First, plaintiff notes that there was no

explicit attendance standard or official attendance policy and
that discipline for poor attendance was discretionary with the
office
believe

manager.
it

While

weakens

the

this

is

correct,

believability

of

the

court

does

defendant’s

grounds for disciplining and terminating plaintiff.

not

alleged

Attendance

is normally important and it was important for plaintiff’s job
with defendant – this is undisputed.
4

Therefore, it would be a

This employee, however, had other issues of poor performance in addition to
an absenteeism problem.

38

reasonable exercise of discretion to discipline and terminate an
employee

for

poor

attendance,

particularly

when

the

only

evidence suggests that the policy was applied evenhandedly.
Plaintiff contends, as evidence of pretext, that Suzanne
Kraft made the decision to write-up plaintiff on April 26, 2012
and

that

Kraft

had

made

racial

retaliatory acts against plaintiff.

comments

and

committed

Plaintiff has not proffered

that the alleged “racial comments” from Kraft were made with
animosity towards plaintiff.

Moreover, the comments did not

begin after plaintiff engaged in protected activity.

So, the

comments do not substantiate a retaliatory motive as opposed to
a racial motive.
Environment,

557

Kenfield v. Colorado Dept. of Public Health &
Fed.Appx.

728,

733

(10th

Cir.

2014)(the

continuance of alleged adverse comments or actions which formed
the basis of a grievance or administrative charge, cannot be
retaliatory since plaintiff alleges it preceded the protected
activities).
corporate

Furthermore, the evidence is undisputed that other

executives,

in

addition

to

Kraft,

suggested

that

plaintiff’s absenteeism be addressed shortly before the April
26, 2012 write-up from Kraft and that they participated in later
disciplinary actions.

Therefore, the court does not believe the

remarks provide evidence that the warnings given to plaintiff
and her eventual termination were based upon a pretext that
plaintiff’s absenteeism was unacceptable to defendant.
39

As for Kraft’s alleged retaliatory acts, plaintiff asserts
that Kraft left a mess (food wrappers) on plaintiff’s desk and
caused

plaintiff’s

files

to

be

disorganized.

Plaintiff,

however, provides no evidence that these actions were motivated
to

retaliate

corporate

against

officers

plaintiff.

besides

Also,

Kraft

actions taken against plaintiff.

as

mentioned,

supported

the

other

disciplinary

Therefore, the court does not

believe a reasonable jury would consider plaintiff’s allegations
as

evidence

that

the

discipline

issued

for

absenteeism

was

motivated by retaliation.
Plaintiff contends that absenteeism was a pretext for the
discipline

given

plaintiff

because

the

26th

April

write-up

discussed absences going back to November 4, 2011 and that Kraft
approved

of

some

of

plaintiff’s

absences

on

August

because they were related to stress and anxiety.
not

believe

a

reasonable

jury

demonstrate

that

the

discipline

and

termination

implausible.
the

total

disciplining

would

absenteeism

find

was

weak,

2012

The court does

that

rationale

7,

these

for

points

plaintiff’s

contradictory

or

It would be reasonable for an employer to consider
number
an

of

absences

employee.

over

In

time

addition,

in
the

counseling
fact

that

or
some

absences were approved by Kraft does not imply that the total
number was acceptable or would be acceptable to a reasonable
employer.

The

evidence

in

the
40

record

is

that

defendant

concluded that plaintiff’s number of absences was excessive even
excluding those absences which were excused or related to valid
medical purposes.
Plaintiff further asserts that defendant did not follow its
progressive discipline policy.

But, the record does not support

this

normal

assertion.

action
warning

was:

Defendant’s

counseling

by

an

by

immediate

an

sequence

immediate

supervisor;

for

corrective

supervisor;

final

written

verbal
warning

stating that the next step will be termination; and termination.
See Doc. No. 55 at p. 6.

This sequence is optional, according

to the employee handbook, but it appears to have been followed
in this case.
Finally, as evidence of pretext, plaintiff alleges that she
was written up for texting to report a work absence when another
employee (Jennifer Llamas) did the same thing without receiving
discipline.

Plaintiff, however, provides no evidence that the

attendance or discipline records of plaintiff and Llamas were
comparable.

There is no evidence of how often Llamas texted in

absences, but there is evidence that plaintiff (who apparently
was absent more frequently than Llamas) continued to text-in
absences even after she was warned against the practice.

See

Defendant’s

has

exhibits

26,

29

and

34.

The

Tenth

Circuit

observed that increased supervisory scrutiny and discipline is
an appropriate result of poor adherence to procedures, and that
41

differences in treatment can legitimately stem from differences
in

disciplinary

history

rather

than

Macon, 743 F.3d at 715 n.7 & 718-19.

from

retaliatory

motive.

Here, plaintiff has failed

to proffer sufficient evidence of pretext because she has not
proffered evidence which suggests that Llamas and plaintiff were
similarly-situated.

Plaintiff had a record of high absenteeism

which logically could have resulted in increased scrutiny of
plaintiff’s adherence to the no-texting policy.
In addition, Llamas left defendant’s employment in March
2012.

Llamas

deposition.

deposition,

Doc.

No.

55-5

at

p.

10

of

the

Defendant placed greater emphasis upon enforcing

the no-texting policy after that date.5

The alleged difference

in defendant’s treatment of plaintiff and Llamas with regard to
texting notice of work absences could easily have been based on
attendance

or

performance

issues

and

changes

in

enforcement

policy, as opposed to a desire to retaliate against plaintiff
for protected activity.
To summarize, the court believes that plaintiff’s proffer
of evidence to prove pretext is not sufficient for a reasonable
jury

to

conclude

that

defendant’s

reasons

to

discipline

terminate plaintiff were a pretext for retaliation.

5

and

Therefore,

Suzanne Kraft testified that there was a greater emphasis upon enforcing the
no-texting policy after March or April 2012 because the practice was getting
out of hand.
Doc. No. 55-4 at pp. 67-69 of Kraft’s deposition; see also,
plaintiff’s deposition, Doc. No. 51 at p. 111 of deposition. Plaintiff does
not dispute this point. Doc. No. 55, p. 44.

42

there is no material issue of fact as to whether defendant took
materially

adverse

actions

to

retaliate

against

plaintiff

because of her opposition to discrimination.
V. CONCLUSION
For

the

above-stated

reasons,

the

court

shall

defendant’s motion for summary judgment.
IT IS SO ORDERED.
Dated this 9th day of July, 2014, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

43

grant