Velasquez v. Philips Electronics North America Corporation
Filing
44
MEMORANDUM AND ORDER granting 33 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 2/6/2015. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JESSE S. VELASQUEZ,
Plaintiff,
v.
Case No. 13-1463-DDC-KMH
PHILIPS ELECTRONICS NORTH
AMERICA CORPORATION,
Defendant.
_____________________________________
MEMORANDUM AND ORDER
Plaintiff Jesse S. Velasquez brings this employment discrimination lawsuit against
defendant Philips Electronics North America Corporation, asserting claims of: (1) age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621 et seq.; (2) national origin discrimination in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (3) disability discrimination in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and (4) retaliation in
violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. This matter
comes before the Court on defendant’s Motion for Summary Judgment (Doc. 33). For the
reasons explained below, the Court grants defendant’s Motion for Summary Judgment.
I.
Uncontroverted Facts
The following facts have been stipulated by the parties in the Pretrial Order (Doc. 32), are
uncontroverted, or, where controverted, are stated in the light most favorable to plaintiff, the
party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378 (2007).
1
Plaintiff’s Employment
Plaintiff was born in North Dakota in 1944, and has lived in the United States his entire
life. Plaintiff’s national origin is Mexican. Plaintiff began working for defendant in 1978.
Other than occasional furloughs, defendant employed plaintiff continuously from 1978 until
April 15, 2013. Plaintiff worked at defendant’s Salina, Kansas facility, which manufactures
linear fluorescent lamps. During the time periods relevant to this lawsuit, defendant employed
plaintiff as a Mechanic II in the fixture room, which is a fixture shop for production lines and
maintenance. As a Mechanic II, plaintiff’s job duties included rebuilding and repairing
mechanical parts and motors.
Defendant’s policies allowed plaintiff two 15-minute paid rest breaks and two 30-minute
unpaid lunch breaks per shift. Using the restroom is not considered break time. The time for
taking breaks was flexible, depending on the company’s needs and whether plaintiff was in the
middle of a project. If the line was down and needed his help, plaintiff would work all day
without a break. On one occasion, plaintiff’s supervisor allowed him to take a forty-five minute
break to talk about plaintiff’s work accomplishments.
Plaintiff’s Medical Condition
In 2010, plaintiff was diagnosed with kidney failure and type 2 diabetes. Plaintiff had
surgery in 2010, and defendant accommodated his post-surgery hospitalization, which lasted
approximately three weeks. Defendant also accommodated all of plaintiff’s other absences from
work for his medical condition.
Plaintiff manages his kidney failure through dialysis and medication. Defendant
accommodated plaintiff’s medical conditions at work in several ways. When plaintiff was
diagnosed with kidney failure initially, he did his own dialysis, which took approximately thirty
2
minutes to complete per day and required a clean location. Defendant accommodated plaintiff’s
self-dialysis at work by permitting him to use a private storage room in the office during one of
his 30-minute meal breaks. Later, plaintiff’s doctor instructed plaintiff to start doing dialysis at
the hospital, and defendant permitted plaintiff to rearrange his work schedule to accommodate
his dialysis schedule. This schedule change meant that plaintiff no longer could work on
Fridays.
Defendant also accommodated plaintiff’s kidney failure by permitting him to use a golf
cart to move around the facility. After receiving his diagnosis, plaintiff suffered from fatigue
and was unable to walk throughout the entire facility. Plaintiff therefore asked his supervisor to
allow him to use a golf cart. The supervisor initially denied the request, saying that if he let
plaintiff use a golf cart then every other employee would want to use one. Two days later,
however, plaintiff’s supervisor told him that he could use a golf cart anytime he wanted.
Defendant allowed plaintiff to sit down at his work station as needed, but because each
station in the fixture room already contained chairs, plaintiff did not need to request this
accommodation. Defendant also permitted plaintiff to take short-term disability leave at least
twice.
On or about January 4, 2012, plaintiff submitted a doctor’s note stating he could not
operate a forklift or use a stepstool or ladder. Defendant accommodated these restrictions. On or
about July 10, 2012, plaintiff submitted a doctor’s note stating he could not climb ladders, walk
over 15 minutes per hour, lift more than 10 pounds, or operate a forklift. Defendant
accommodated these additional restrictions. Defendant made every accommodation plaintiff
requested.
3
With the accommodations defendant provided, plaintiff was able to manage his kidney
failure and diabetes effectively. Plaintiff’s kidney failure and diabetes did not affect his ability to
perform his duties as a Mechanic II, and no one working for defendant has ever said anything
derogatory about plaintiff’s kidney failure or diabetes.
Plaintiff’s FMLA Leave
During his employment with defendant, plaintiff made three requests for FMLA leave.
Plaintiff’s discussions with defendant’s management about FMLA were very positive. Plaintiff
told Tom Harmon, a management employee, that his situation was bad and that he required
surgeries. Defendant granted plaintiff intermittent FMLA leave from February 2011 through
February 2012 for kidney failure. Defendant denied plaintiff FMLA leave in March 2012
because he had already exhausted his leave. Defendant denied plaintiff FMLA leave again in
October 2012 because he did not submit a medical certification. Plaintiff does not allege that
either decision to FMLA leave was inappropriate.
When plaintiff returned from FMLA leave in 2012, he began having his work recalled.
Plaintiff had never experienced recalls before his leave, and plaintiff believes that a coworker,
Scott Long, was sabotaging his work.
Plaintiff’s Final Written Warning
On or about November 18, 2012, a supervisor asked plaintiff to readjust a coating head
that failed to meet specifications. Instead of readjusting the part as the supervisor requested,
plaintiff took the part to the Mastergroup (the name for the lead position between plaintiff and
his supervisor). Plaintiff asked the Mastergroup to sign a red ticket indicating that the part was
out of service, but the Mastergroup declined plaintiff’s request. Plaintiff was issued a Final
Written Warning on November 20, 2012, after management concluded that plaintiff told the
4
Mastergroup to “just piss on it”1 and then walked away and placed the defective coating head
back in the supplies cabinet. The Final Written Warning provided that plaintiff’s actions
violated defendant’s policies against harassment, giving false information, and absence from his
assigned department without permission or logical reason. Defendant also placed plaintiff on a
Performance Improvement Plan on November 20, 2012, and plaintiff understood that defendant
could fire him if another incident occurred. Plaintiff complied with the Performance
Improvement Plan and stopped having weekly meetings with his supervisor to discuss his
compliance with the Performance Improvement Plan in February 2013.
In January and April 2013, plaintiff was involved in verbal altercations with two other
coworkers. Plaintiff received his last annual evaluation on January 31, 2013. In that evaluation,
plaintiff received an overall rating of “Meets Expectations.” Plaintiff received his evaluation for
the prior year on January 26, 2012. In that evaluation, plaintiff received an overall rating of
“Exceeds Expectations” and received that same rating in three out of five performance
categories.
Plaintiff’s Termination
Defendant terminated plaintiff’s employment on April 15, 2013, for taking excessive
breaks while on a Final Written Warning. The following individuals participated in the decision
to terminate plaintiff’s employment: Bryan Herwig (who was 32 at the time of plaintiff’s
termination), John Moyer (who was 37 at the time of plaintiff’s termination), Jerry Unruh (who
was 63 at the time of plaintiff’s termination), Chris Montgomery (who was 40 at the time of
plaintiff’s termination), Dan Mendicina (who was 47 at the time of plaintiff’s termination), and
Tom Harmon (who was 51 at the time of plaintiff’s termination).
1
Plaintiff denies that he made this comment.
5
Plaintiff does not recall what breaks he took on April 11, 13-14, 2013, and admits that he
may have exceeded his allotted time for breaks. But plaintiff asserts that his medical condition
required frequent use of the restroom. Plaintiff admits that it was not unreasonable for defendant
to conclude that he violated the break policy because he occasionally exceeded his allotted break
times.
John Moyer, who supervised plaintiff, collected information about plaintiff’s use of break
time. When Mr. Moyer learned that plaintiff might be violating the break policy, he never asked
plaintiff if he was taking excessive breaks because he thought plaintiff would not tell him the
truth, even though he could never recall a time that plaintiff had lied to him. Mr. Moyer also
never had any prior concerns or suspicions that plaintiff had violated the break policy. Mr.
Moyer admits that an explanation could have existed for some of the documented break times
that would not violate the company policy. Mr. Moyer concedes he does not know whether
defendant gave plaintiff an opportunity to explain before defendant terminated his employment.
After collecting the information about plaintiff’s use of break time, Mr. Moyer met with his
supervisor, Tom Harmon, and the head of Human Resources, Bryan Herwig, to discuss the
information. In addition, legal counsel participated in that meeting by telephone. Mr. Moyer has
never been involved in terminating an employee for violation of the break policy, other than
plaintiff’s termination.
Before September 2012, Jerry Unruh supervised plaintiff. Mr. Unruh’s understanding of
the break policy is that breaks are not monitored unless someone complains. In plaintiff’s
situation, Mr. Unruh recalls that several people complained about plaintiff’s excessive use of
break time, but the only person he can remember complaining is Lucas Nease. Mr. Unruh does
not remember if he typically would confront an accused employee before beginning a formal
6
investigation. Mr. Unruh recorded plaintiff’s break times in connection with his termination, but
he does not remember where he saw plaintiff or what he was doing during most of the times that
he recorded. He does not remember specifically if plaintiff was leaving the bathroom, break
room, or fixture room at the times recorded. He also agreed that restroom use is not considered
break time, and if plaintiff used the restroom after taking a 15 minute break, it would not violate
the break policy. Mr. Unruh also allowed his employees to leave the fixture room to visit with
customers or ask questions during work time.
Terry Kilgore is a shift supervisor in the lamp plant. Typically, he did not supervise
plaintiff or have any day-to-day interaction with him. However, Mr. Moyer and Mr. Unruh
asked Mr. Kilgore to monitor plaintiff’s break time usage on a weekend shift. Mr. Kilgore spent
more than two hours monitoring plaintiff’s break time during that shift even though he was the
only salaried employee in the facility that day and needed to be available to answer questions and
handle phone calls. Mr. Kilgore observed plaintiff taking his breaks in the break room at the
same table. In his nearly four years of employment, Mr. Kilgore has not been involved in the
termination of any employees for violating the break policy, other than plaintiff.
An individual who complained about plaintiff’s use of break time, Lucas Nease, provided
two different statements to defendant on April 11 and April 12, 2013, a few days before
defendant terminated plaintiff’s employment. In those statements, Nease reported that plaintiff
had complained to him about Scott Long being a racist and that Mr. Nease thought plaintiff was
trying to get Mr. Long fired.
Plaintiff has no personal knowledge about how the termination decisionmaking process
works at defendant. Plaintiff has no personal knowledge about how the decision was made to
terminate his employment. Plaintiff has no personal knowledge that defendant fabricated any
7
records about his termination. Plaintiff does not believe that defendant terminated his
employment because he took FMLA leave.
Other Employees Terminated or Disciplined for Violating the Break Policy
Between January 1, 2010 and December 31, 2013, defendant terminated ten employees in
whole or in part for violating the break policy. All but two of these employees were at least 45
years old at the time of termination and two of these terminated employees were in their sixties.
The average age of these employees was approximately 46.5 years old. Defendant has
terminated the employment of plaintiff, Mario Gallejos, Gerald Ridgeway, Alan Wilson, Rick
Overkamp, Son Tran, Harold Vignery, Tim Bobbett, Chris Colosimo, and Todd Furgison in
whole or in part because of excessive breaks. Mr. Ridgeway, Mr. Wilson, Mr. Overkamp, Mr.
Bobbett, Mr. Colosimo, and Mr. Furgison are Caucasian. Mr. Ridgeway was under the age of 40
at the time of his termination. None of the individuals have any known disability. Mr. Bobbett,
who was 45 years old at the time of his termination, and Mr. Tran, who was 50 years old when
terminated and Asian, had applied for or taken FMLA leave during the year preceding their
terminations.
Between January 1, 2009 and December 31, 2013, defendant disciplined approximately
twenty-one employees for abusing the break rules, with four of those employees being
disciplined on multiple occasions for this same reason. All of the employees who received
discipline less than termination were Caucasian.
II.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When it applies this standard, the Court views the evidence and draws
8
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1245–46 (10th Cir. 2010)). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson,
477 U.S. at 248)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings but must bring forward specific facts showing a genuine issue for trial as to those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert.
denied, 506 U.S. 1013 (1992)).
9
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Rather, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
III.
Analysis
Defendant moves for summary judgment on each of plaintiff’s four claims: (1) age
discrimination in violation of the ADEA; (2) national origin discrimination in violation of Title
VII; (3) disability discrimination in violation of the ADA; and (4) retaliation in violation of the
FMLA. Where, as here, a plaintiff has not alleged any direct evidence of discrimination,
plaintiff may use circumstantial evidence to prove discrimination under Title VII, the ADEA,
and the ADA and retaliation under the FMLA with the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik v. United Air Lines, 671 F.3d 1188,
1192, 1193 (10th Cir. 2012) (Title VII and FMLA claims); Garrett v. Hewlett–Packard Co., 305
F.3d 1210, 1216 (10th Cir. 2002) (Title VII and ADEA claims); Butler v. City of Prairie Village,
Kan., 172 F.3d 736, 747 (10th Cir. 1999) (ADA claim).
The McDonnell Douglas framework involves a three-step analysis. Garrett, 305 F.3d at
1216. First, a plaintiff must provide a prima facie case of discrimination. Id.; see also Khalik,
671 F.3d at 1192. If plaintiff meets this burden, then the burden shifts to defendant to produce a
legitimate, non-discriminatory reason for the adverse employment action. Khalik, 671 F.3d at
1192 (citing Garrett, 305 F.3d at 1216). If defendant satisfies that burden, the burden then shifts
back to plaintiff to show that plaintiff’s protected status was a determinative factor in the
employment decision or that the employer’s explanation is pretext. Id. (citing Garrett, 305 F.3d
at 1216).
10
Defendant asserts that plaintiff’s claims fail under the McDonnell Douglas test for two
reasons. First, defendant argues that plaintiff cannot establish a prima facie case to support each
of his four claims, and his claims therefore fail as a matter of law. Second, defendant contends
that, even if plaintiff establishes a prima facie case, defendant has proffered a legitimate, nondiscriminatory reason for plaintiff’s termination, and plaintiff cannot establish that defendant’s
explanation is pretext. The Court addresses each of these arguments in turn below.
A. ADEA Prima Facie Case
The ADEA makes it “unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). “[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse
action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (citation omitted). Therefore, to establish an age
discrimination claim under the ADEA, “a plaintiff must prove that age was the ‘but-for’ cause of
the employer’s adverse decision.” Id. (citations omitted); see also Simmons v. Sykes Enters.,
Inc., 647 F.3d 943, 947 (10th Cir. 2011) (“In other words, we must determine whether age was a
‘but-for’ cause or ‘the factor that made a difference.’” (citations omitted)).
The Supreme Court’s articulation of an ADEA plaintiff’s burden of proof in Gross does
not displace the continued application of the McDonnell Douglas framework to ADEA claims.
Jones v. Okla. Pub. Schs., 617 F.3d 1273, 1278–79 (10th Cir. 2010). Under this framework, the
Tenth Circuit has adopted a four-part test for establishing a prima facie case of discrimination
under the ADEA. In Jones, the Circuit held that a plaintiff must show: (1) he is a member of the
class protected by the ADEA; (2) he suffered an adverse employment action; (3) he was
11
qualified for the position; and (4) he was treated less favorably than others not in the protected
class. 617 F.3d at 1279 (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir.
1998)); see also Hutchins v. Cessna Aircraft Co., ___ F. App’x ___, 2014 WL 5472172, at *2
(10th Cir. Oct. 30, 2014). Later that same year the Circuit explained the four elements slightly
differently, stating that an ADEA plaintiff “must ordinarily prove that: (1) [he] is within the
protected age group; (2) [he] was doing satisfactory work; (3) [he] was discharged; and (4) [his]
position was filled by a younger person.” Kosak v. Catholic Health Initiatives of Colo., 400 F.
App’x 363, 366 (10th Cir. 2010) (citing Rivera v. City & Cnty. of Denver, 365 F.3d 912, 920
(10th Cir. 2004)); see also Zoutomou v. Copper, 550 F. App’x 647, 651 (10th Cir. 2013) (citing
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008)). Then,
in a 2012 opinion, the Tenth Circuit explained that a plaintiff establishes a prima facie case of
age discrimination “by showing (1) membership in a protected class and (2) an adverse
employment action (3) that took place under circumstances giving rise to an inference of
discrimination.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012) (citing
EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)).
Under any of these tests, the elements of a prima facie case “are neither rigid nor
mechanistic.” Adamson, 514 F.3d at 1146 (citation omitted). Instead, “their purpose is the
establishment of an initial inference of unlawful discrimination warranting a presumption of
liability in plaintiff’s favor.” Id. (citation omitted). And, a plaintiff’s burden of proving a prima
facie case is “‘not onerous.’” Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005)
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
For purposes of summary judgment only, the parties agree that plaintiff has established
the first three prongs of the prima facie test—that is, (1) plaintiff is a member of the class
12
protected by the ADEA, (2) he suffered an adverse employment action when defendant
terminated his employment, and (3) he was qualified for his employment position. But the
parties dispute what plaintiff is required to show under the fourth prong. Defendant asserts that
plaintiff must show his position was filled by a younger person, as required by the Tenth
Circuit’s formulation of the prima facie elements in Kosak. Indeed, in Kosak, the Tenth Circuit
stated: “We have repeatedly emphasized that an ADEA plaintiff must ordinarily show that her
position was filled by a younger person in order to make a prima facie case of discrimination
under the McDonnell Douglas burden-shifting framework.” Kosak, 400 F. App’x at 366
(citations omitted) (emphasis added). Notably, the Circuit stated that this is “ordinarily” the
standard. In that same opinion, the Circuit recognized that a plaintiff may support a prima facie
case of age discrimination by relying on pretext evidence “‘if it indeed gives rise to an inference
of actionable discriminatory intent.’” Id. at 367 (quoting Adamson, 514 F.3d at 1151). This
language is similar to the burden plaintiff here claims he must satisfy—he contends the fourth
element of an ADEA prima facie case requires him to show that he was terminated under
circumstances giving rise to an inference of discrimination. Doc. 38 at 13 (citing Hysten v.
Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1181 (10th Cir. 2002)); see also Daniels, 701 F.3d
at 627; Howard v. Garage Door Grp., Inc., 136 F. App’x 108, 112 (10th Cir. 2005).
A review of other cases within the Tenth Circuit and our Court shows that these courts
have treated the various iterations of this fourth prong as equivalents and interchangeably. See,
e.g., Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995) (reciting the fourth element of a
prima facie case as “replaced by a younger person” and stating that it “may also be shown by
circumstantial evidence that a plaintiff was treated less favorably than younger employees”); see
also Vincson v. Aurora Mental Health, No. 06-cv-00373-MSK-MJW, 2007 WL 1491265, at *3
13
(D. Colo. May 21, 2007) (one of the prima facie elements requires plaintiff to show “[t]he
termination took place under circumstances giving rise to an inference of discrimination (i.e., she
was replaced by someone who was younger than 40 . . . ).” (citation omitted)); Lucas v. Miami
Cnty. Bd. of Comm’rs, No. 99-2400-KHV, 2000 WL 968806, at *10 (D. Kan. July 6, 2000)
(stating the fourth element requires plaintiff to show that he was “replaced by a younger person
(or discharged under circumstances giving rise to an inference of discrimination on the basis of
age).” (citation omitted)). Regardless of the precise wording used to express this fourth prong,
the Court concludes that plaintiff has not established a prima facie case of age discrimination.
First, the Court agrees with defendant that plaintiff has not shown that a younger person
replaced him. The record contains no evidence even identifying plaintiff’s replacement, much
less establishing that the replacement was younger.
Second, the summary judgment evidence, even when viewed in the light most favorable
to plaintiff, fails to demonstrate that plaintiff was treated less favorably than younger employees.
Plaintiff points to evidence that, between January 1, 2010 and December 31, 2013, defendant
terminated ten employees in whole or in part for violating its break policy. Of those employees,
all but two were at least 45 years old when discharged and two were in their sixties.2 The
average age of the terminated employees was approximately 46.5 years old. While statistical
data showing an employer’s pattern of conduct toward a protected class can create an inference
of discrimination, “‘[s]tatistics taken in isolation are generally not probative of . . .
2
Plaintiff also argues that his termination was similar to the facts involving a 60-year-old
employee who was terminated in 2009 for violating the break policy. However, no evidence in the record
describes the circumstances of this other employee’s termination, and, thus, the Court cannot consider this
information in deciding summary judgment. See Fed. R. Civ. P. 56(c)(1)(A) (a party asserting a fact must
cite to particular parts of materials in the record); see also D. Kan. Rule 56.1(b)(2) (the party opposing
summary judgment must set forth facts supported by references to the record). Moreover, even if the
information asserted by plaintiff is true, the evidence does not show that defendant treated plaintiff less
favorably than younger employees.
14
discrimination,’ . . . .” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1114–15 (10th Cir. 2007)
(citing Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991) and quoting Jones, 54
F.3d at 632). Here, plaintiff’s statistical evidence is insufficient to create an inference of age
discrimination for several reasons.
For one, plaintiff’s data only provides the ages of ten employees terminated for violations
of the break policy. Plaintiff fails to provide other information that would allow the Court to
draw an inference of age discrimination from this evidence such as the size or ages of the entire
employee population, the ages of employees who were terminated for other policy violations, or
the ages of similarly situated employees who were not terminated for violating the break policy.3
Importantly, without information identifying similarly situated younger employees who violated
the break policy but were not terminated, plaintiff’s statistical evidence does not show that
defendant treated plaintiff less favorably than younger employees. Moreover, plaintiff fails to
eliminate nondiscriminatory explanations for the numerical disparity by showing disparate
treatment between similarly situated individuals. Fallis, 944 F.2d at 746 (“a plaintiff’s statistical
evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment
by showing disparate treatment between comparable individuals.”); see also Howard, 136 F.
App’x at 113 (holding that plaintiff failed to establish a prima facie case of age discrimination
because his statistics did not include a comparative analysis of similarly situated individuals). In
addition, plaintiff’s sample size of ten employees is too small to provide reliable statistical
results. See Fallis, 944 F.2d at 746 (a statistical sample of nine “carries little or no probative
3
The Court recognizes that plaintiff denies that he violated the break policy. But the
uncontroverted evidence shows that defendant received a complaint about plaintiff’s break time use,
conducted an investigation, and concluded that plaintiff had violated break policy. Plaintiff provides no
evidence of other employees who were found by defendant to have committed violations of the break
time policy, similar to those that defendant concluded plaintiff had committed, but were not terminated
from their employment.
15
force to show discrimination.”). The Court therefore cannot draw an inference of age
discrimination from plaintiff’s statistical evidence.
Finally, the remaining evidence cited by plaintiff, even when viewed in the light most
favorable to plaintiff, fails to show that his termination took place under circumstances giving
rise to an inference of age discrimination. Plaintiff first argues that the lack of specificity in the
witness testimony and statements about plaintiff’s behavior shows an inference of age
discrimination. But plaintiff cites no evidence showing that any of the witnesses harbored an
animus against plaintiff because of his age, and the Court cannot draw such an inference based
on the uncontroverted facts. It is uncontroverted that Mr. Nease complained about plaintiff’s
abuse of the break policy, which in turn caused the company to monitor plaintiff’s breaks.
Plaintiff fails to show any facts from which a rational jury could conclude that either Mr. Nease’s
complaints or his statements about an altercation between plaintiff and another employee on
April 10, 2013, resulted from age bias.
Plaintiff also complains about the specificity of Mr. Moyer and Mr. Kilgore’s testimony,
but the Court fails to see how these witnesses’ testimony could support an inference of age
discrimination. Mr. Moyer testified that he collected information about plaintiff’s use of break
time and met with his supervisor and the head of human resources to discuss that information.
Mr. Kilgore testified that he spent more than two hours monitoring plaintiff’s use of the break
room during a particular shift, and he specifically remembered observing plaintiff taking his
breaks in the break room at the same table. If anything, Mr. Kilgore’s testimony was specific
about plaintiff’s violation of the break policy.
Plaintiff next argues that he has demonstrated an inference of age discrimination because:
(1) two of the witnesses involved in plaintiff’s termination had never before been involved with a
16
termination based on violation of the break policy; and (2) defendant’s legal counsel participated
in a conversation about the decision to terminate plaintiff. Defendant refers to these two facts as
“innocuous” and argues that they do not advance plaintiff’s age discrimination claim (Doc. 43 at
4). The Court agrees. Plaintiff fails to connect these facts with any evidence that could allow a
jury to draw an inference of discrimination based on age.
Plaintiff also argues that defendant selectively uses the break policy by enforcing it only
when someone complains, and that defendant used the break policy in this case to terminate
plaintiff because of his age. Again, plaintiff fails to tie this allegation to any evidence of age
discrimination. Plaintiff provides no evidence that defendant actively seeks out violations of the
break policy by older employees or disregards complaints about younger employees who violate
the break policy. Plaintiff also fails to cite evidence about other investigations into break policy
violations that would demonstrate an inference of age discrimination in plaintiff’s termination.
In this record, the Court cannot find any evidence from which a jury could infer that defendant’s
enforcement of the break policy was discriminatory based on age.
Plaintiff lastly argues that he had never faced any complaints of excessive breaks during
his 35 years of employment before the complaint leading to his termination, and he was never
informed about that complaint (or given an opportunity to defend against the allegation that he
was taking excessive breaks). Again, plaintiff cites no evidence to connect these facts to some
evidence of age bias. Without such evidence, plaintiff relies only on his own speculation to find
an inference of age discrimination. This will not suffice to establish a prima facie case of age
discrimination, and, therefore, the Court grants summary judgment against plaintiff’s ADEA
claim.
17
B. Title VII Prima Facie Case
Title VII prohibits employers from discharging or otherwise discriminating against an
individual based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). To
establish a prima facie case of national origin discrimination under Title VII, a plaintiff must
show that (1) he belongs to a protected class; (2) he suffered an adverse employment action; and
(3) the adverse employment action occurred under circumstances giving rise to an inference of
discrimination. Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (citing Burdine, 450
U.S. at 253); PVNF, L.L.C., 487 F.3d at 800 (citing Sorbo v. United Parcel Serv., 432 F.3d 1169,
1173 (10th Cir. 2005)).
For purposes of summary judgment only, the parties do not dispute that plaintiff can
establish the first and second prong of the prima facie test. Defendant argues, however, that
plaintiff has failed to marshal facts that could satisfy the third prong by showing that his
termination occurred under circumstances giving rise to an inference of national origin
discrimination. A plaintiff may show circumstances sufficient for this part of the test in a variety
of ways, including: “‘actions or remarks made by decisionmakers that could be viewed as
reflecting a discriminatory animus . . . , preferential treatment given to employees outside the
protected class . . . or, more generally, upon the timing or sequence of events leading to
plaintiff’s termination.’” Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005) (quoting
Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 91 (2d Cir. 1996)).
Here, plaintiff argues he was subjected to derogatory comments made by his coworkers
several years before his termination, which, he contends, gives rise to an inference of national
original discrimination in his termination. Plaintiff testified that, about five years ago, a
coworker once called him a derogatory name and used another derogatory name on fewer than
18
five occasions. Plaintiff immediately reported the coworker’s comments to his supervisor, Mr.
Unruh. In response, Mr. Unruh laughed, but he also had a talk with the coworker and made the
coworker apologize to plaintiff for the comments. Plaintiff also alleges that another coworker
referred to him as a “dumb Mexican” behind his back.
These isolated comments made by non-decisionmakers are not sufficient to establish an
inference of discrimination. See Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1184 (10th Cir.
2006) (isolated racial comment made by only one of the four decisionmakers in a time remote
from the termination was insufficient to show that the termination was pretext for
discrimination); see also Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir.
1994) (“Isolated comments, unrelated to the challenged action, are insufficient to show
discriminatory animus in termination decisions. [Plaintiff] must demonstrate a nexus exists
between these allegedly discriminatory statements and the [employer’s] decision to terminate
[him].” (citations omitted)). In contrast to the remark in Antonio, none of the decisionmakers in
plaintiff’s termination made derogatory comments about plaintiff’s national origin. Only one of
the decisionmakers, Mr. Unruh, knew about these comments, but plaintiff concedes Mr. Unruh
promptly addressed his complaint by talking to the employee and making him apologize to
plaintiff. Also, like the comments in Antonio, the comments alleged by plaintiff occurred
remote in time from plaintiff’s termination. Plaintiff fails to provide any other evidence to
connect the termination decision to these isolated remarks made by non-decisionmakers. Thus,
no rational jury could infer from these comments that plaintiff’s termination was based on
national origin discrimination. See Antonio, 458 F.3d at 1184 (no reasonable trier of fact could
find pretext in defendant’s reason for terminating plaintiff based on an isolated racial remark).
19
Plaintiff next relies on the statistical data showing that defendant disciplined twenty-one
employees, with four employees receiving discipline on multiple occasions, for abusing the
break policy between January 1, 2009 and December 31, 2013. All of the employees who
received discipline short of termination were Caucasian. Plaintiff’s reliance on these statistics is
flawed for the same reasons discussed in the ADEA analysis. Most notably, plaintiff fails to
provide any evidence showing that defendant did not discipline or terminate any employees
outside the protected class for similar violations of the break policy. Plaintiff’s statistics
therefore do not raise an inference of national origin discrimination in his termination.
Finally, plaintiff relies on the same evidence that he used to support his ADEA claim:
(1) the lack of specificity in the witness testimony about plaintiff’s behavior, particularly Mr.
Moyer and Mr. Kilgore; (2) the lack of specificity in Mr. Nease’s statements about the April 10,
2013 incident; (3) two of the witnesses involved in plaintiff’s termination had never before been
involved with a termination based on violation of the break policy; and (4) defendant had legal
counsel on the phone during a conversation about the decision to terminate plaintiff’s
employment. For the same reasons discussed above, these facts, even when viewed in the light
most favorable to plaintiff, cannot support a finding by a jury that plaintiff’s termination
occurred under circumstances giving rise to an inference of national origin discrimination.
Plaintiff fails to connect any of these facts with some evidence of a discriminatory animus based
on plaintiff’s national origin. Instead, plaintiff’s assertion that these facts create an inference of
discrimination is based only his speculation which is insufficient to establish a prima facie case
of discrimination under Title VII. Therefore, the Court grants summary judgment in favor of
defendant against plaintiff’s Title VII claim.
20
C. ADA Prima Facie Case
The ADA prohibits an employer from discriminating against “a qualified individual on
the basis of disability . . . .” 42 U.S.C. § 12112(a). To establish a prima facie case of
discrimination under the ADA, a plaintiff must show that: “(1) he is disabled within the meaning
of the ADA; (2) he is qualified to perform the essential functions of his job with or without
accommodations; and (3) he was terminated ‘under circumstances which give rise to an
inference that the termination was based on [his] disability.’” Smothers v. Solvay Chems., Inc.,
740 F.3d 530, 544 (10th Cir. 2014) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th
Cir. 1997)).
Defendant concedes for summary judgment the first two parts of the this test, i.e., that
plaintiff is disabled and qualified to perform the essential functions of his job with or without
reasonable accommodation. Defendant argues, however, that plaintiff cannot establish the third
part of this test because he cannot show that he was terminated under circumstances giving rise
to an inference of disability discrimination. To establish the third element of the prima facie test,
a plaintiff “must show a nexus, or ‘at least a logical connection’ between his disability and the
termination.” Dewitt v. Sw. Bell Tel. Co., ___ F. Supp. 2d ___, 2014 WL 3955356, at *4 (D.
Kan. Aug. 13, 2014) (quoting Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996)).
Plaintiff asserts that defendant terminated his employment because he is “old and sick.”
But the “mere fact” that a plaintiff has a medical condition of which a decisionmaker is aware “is
not affirmative evidence that the disability was a determining factor in defendant’s decision” to
terminate the plaintiff. Markham v. Boeing Co., No. 10-1363-MLB, 2011 WL 6217117, at *5
(D. Kan. Dec. 14, 2011) (explaining that an plaintiff is required to present evidence that
disability was a “determining factor” in the termination decision (citing Morgan, 108 F.3d at
21
1324)). Instead, plaintiff must come forward with “some affirmative evidence that disability was
a determining factor in the employer’s decision.” Morgan, 108 F.3d at 1323 (citation omitted).
First, plaintiff argues that defendant’s accommodations of his medical condition show an
inference of discrimination because defendant initially hesitated to accommodate plaintiff’s
requests to use a golf cart to move around the facility. He also discounts defendant’s letting him
use a chair at work as not an accommodation at all because everyone had access to chairs at the
facility. But plaintiff admits that defendant made every accommodation that plaintiff requested,
and with those accommodations plaintiff managed his kidney failure and diabetes effectively.
The evidence cited by plaintiff, when viewed in the light most favorable to him, does not
establish a nexus between plaintiff’s medical condition and his termination.
Second, plaintiff argues that he has established an inference of discrimination because
defendant enforced its break policy arbitrarily as a means to terminate him because of a
disability. He asserts that defendant does not monitor employees’ break time use unless
someone complains, no one had ever complained about plaintiff taking excessive breaks during
his 35 years of employment before the complaint leading to his termination, he was not informed
about that complaint or given an opportunity to defend against the allegation that he was taking
excessive breaks, and he received positive evaluations in the years preceding his termination
with no reference to violations of the break policy. The Court already has addressed these
arguments and rejects them for the same reasons here because plaintiff has failed to present any
evidence connecting defendant’s actions to plaintiff’s medical condition. Plaintiff has not come
forward with any evidence that defendant actively sought out plaintiff for violating the break
policy because of his medical condition. Moreover, the uncontroverted evidence shows that
22
defendant terminated nine other employees in whole or in part for violating the break policy, and
none of those employees had known disabilities.
Plaintiff also denies that he exceeded his break times and that, if confronted by defendant,
he would have explained that he was using the restroom because of his medical condition and not
exceeding his breaks. However, the uncontroverted facts establish that defendant reasonably
believed that defendant had violated the break policy and acted in good faith on that belief. See
Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013) (“[T]he relevant inquiry is not
whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly
believed those reasons and acted in good faith upon those beliefs.” (citation and internal
quotation marks omitted)). After receiving the complaint about plaintiff, defendant monitored
plaintiff’s usage of break time and determined that he was, in fact, exceeding his break times.
Indeed, Mr. Kilgore, one of the managers who monitored plaintiff’s breaks, specifically recalled
seeing plaintiff taking his breaks in the break room at the same table and exceeding the break
times allotted under the policy. In addition, plaintiff admits that he may have exceeded his break
times, and he concedes that it was not unreasonable for defendant to conclude that he violated
the break policy because he occasionally exceeded his allotted break times.4 Moreover, plaintiff
provides no evidence that defendant has investigated similarly-situated employees without
disabilities for violations of company policy, confronted those employees about the allegations
of policy violations, and given them an opportunity to deny those allegations. Plaintiff admits
4
In making these observations under the prima facie analysis, the Court does not conflate
plaintiff’s discrimination claim with defendant’s proffered explanation. See Orr v. City of Albuquerque,
417 F.3d 1144, 1149 (10th Cir. 2005) (citation omitted). The Court recognizes that, at the prima facie
stage, “a plaintiff is only required to raise an inference of discrimination, not dispel the nondiscriminatory reasons subsequently proffered by the defendant.” Id. (citation and internal quotation
marks omitted). Here, though, plaintiff claims he has raised an inference of discrimination because
defendant did not confront him with the allegations that he was violating the break policy, but if it had,
plaintiff would have denied them. As explained above, this evidence does not show that plaintiff’s
termination took place under circumstances giving rise to an inference of discrimination.
23
that he has no knowledge about how the termination decisionmaking process works at defendant,
and he provides no evidence showing that the circumstances surrounding his termination differed
from the termination process for similarly-situated employees without disabilities such that it
raises an inference of discrimination.
The Court is mindful that plaintiff’s burden to establish a prima facie case is not onerous,
but it also is “not empty or perfunctory.” Morgan, 108 F.3d at 1323–24 (citations and internal
quotation marks omitted). Plaintiff is required “to present some affirmative evidence that
disability was a determining factor in the employer’s decision.” Id. at 1323 (citation omitted).
Here, the evidence before the court lacks any basis for an inference that defendant terminated
him because of a disability. There is no evidence of any derogatory comments about his medical
condition or any other specific circumstances giving rise to an inference of discrimination. Thus,
the summary judgment evidence, even when viewed in the light most favorable to plaintiff, fails
to establish the third element of a prima facie case, and defendant is entitled to summary
judgment on plaintiff’s ADA claim.
D. FMLA Prima Facie Case
It is unlawful under the FMLA for an employer to “discharge or in any other manner
discriminate against any individual for opposing any practice” prohibited by the FMLA. 29
U.S.C. § 2615(a)(2). To state a prima facie case of FMLA retaliation, a plaintiff must show: (1)
he engaged in a protected activity; (2) defendant took an action that a reasonable employee
would have found materially adverse; and (3) a causal connection exists between the protected
activity and the adverse action. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164,
1171 (10th Cir. 2006) (citations omitted).
24
For purposes of summary judgment, defendant assumes plaintiff can satisfy the first two
elements of the prima facie test but argues that his claim fails because he cannot establish a basis
for a rational jury to find a causal connection between the protected activity and the adverse
action. Indeed, plaintiff testified that he does not have any reason to believe that he was
terminated on April 15, 2013, because he had taken FMLA leave in 2011 and 2012. The
uncontroverted evidence shows that plaintiff made three requests for FMLA leave, and plaintiff
admits that his discussions with defendant’s management about FMLA were “very positive.”5
Defendant granted plaintiff intermittent FMLA leave from February 2011 through February 2012
for kidney failure, but denied his two subsequent requests for FMLA leave because he had
already exhausted his leave when he made one request and he did not submit a medical
certification with the other request. Plaintiff does not allege that either denial of FMLA leave
was inappropriate or unlawful.
Plaintiff admits that six months passed between the last denial of FMLA leave and his
termination. This temporal proximity, alone, does not establish a causal connection. See
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (noting that under Tenth
Circuit precedent a three-month period, standing alone, is insufficient to establish causation).
However, plaintiff claims that two additional facts, when coupled with the temporal proximity,
establish a causal connection between his request for FMLA leave and his termination.
First, plaintiff relies on the fact that three of the ten employees whom defendant
terminated in whole or in part for violating the break policy between January 1, 2010 and
December 31, 2013, had requested FMLA leave within a year before their discharge. But these
statistics suffer from the same deficiencies as the other statistics discussed above. They are
presented in a vacuum with no reference to the overall number of requests for FMLA leave at the
5
Plaintiff stipulated to this fact in the Pretrial Order (Doc. 32 at ¶ 2.a.24).
25
facility, the number of people who retained their employment after requesting FMLA leave, or
the specific circumstances surrounding the other terminations. Without such information,
plaintiff has not presented evidence from which a rational jury could find a connection between
plaintiff’s FMLA leave and his termination.
Second, plaintiff asserts that he has demonstrated a causal connection by the fact that his
work was recalled after he returned from FMLA leave in 2012. Plaintiff never experienced
recalls before his FMLA leave, and he believes that a coworker was sabotaging his work. But
plaintiff’s assertions here are based only on his beliefs, not on any affirmative evidence showing
a connection between his FMLA leave and termination. There is also no evidence that the
alleged sabotage played any role in plaintiff’s termination for violating the break policy.
Because plaintiff has failed to show a basis for a rational jury to conclude that a causal
connection existed between his FMLA leave and termination, he cannot establish a prima facie
case of FMLA retaliation. The Court therefore grants summary judgment against plaintiff’s
FMLA claim.
E. Pretext
Even if plaintiff could set forth sufficient evidence to support a prima facie case of
discrimination under either the ADEA, Title VII, ADEA, or FMLA, summary judgment is still
appropriate because plaintiff has failed to present any facts that could support an inference of
pretext. Under the McDonnell Douglas burden-shifting framework, if plaintiff establishes a
prima facie case, the burden shifts to defendant to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Khalik, 671 F.3d at 1193 (citation omitted).
Defendant has done so. It had shown that it terminated plaintiff for violating the company’s
break policy while he was on Final Written Warning.
26
This showing shifts the burden back to plaintiff to show that the employer’s explanation
is pretext. Id. (citation omitted). A plaintiff may demonstrate pretext by “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy
of credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Morgan, 108 F.3d at 1323 (citations and internal quotation marks omitted). But
“‘mere conjecture that [the] employer's explanation is a pretext for intentional discrimination is
an insufficient basis for denial of summary judgment.’” Id. (quoting Branson v. Price River
Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).
The Court already has addressed all of the evidence that plaintiff relies on to support
pretext. As explained above, none of that circumstantial evidence can support a prima facie case
of discrimination or retaliation for any of plaintiff’s four claims. Likewise, this evidence is
insufficient to raise a genuine dispute of material fact that the stated reason for plaintiff’s
termination was a pretext for a discriminatory or retaliatory motive.6 Thus, even if plaintiff
could establish a prima facie case to support any of his four claims, the Court would grant
summary judgment in favor of defendant because the summary judgment record contains no
facts that support a rational finding of pretext.
The Tenth Circuit recognizes there is “some tension” in its case law about what a plaintiff must
show as part of his prima facie case of discrimination: “Some cases treat circumstances suggestive of
discrimination as an element of a prima facie case; other cases treat the surrounding circumstances as part
of the analytically subsequent inquiry into the employer’s stated reason for the challenged action and the
plaintiff’s opposing demonstration of pretext.” PVNF, L.L.C., 487 F.3d at 800 n.5 (citing Sorbo, 432 F.3d
at 1173 & n.5). However, “regardless of whether [the Court] analyze[s] the plaintiff’s evidence ‘in
reference to the prima facie case or the business justification versus pretext inquiry, . . . if the [C]ourt
correctly concludes that the evidence of discrimination/pretext fails as a matter of law, summary
judgment for the defendant is the proper result.’” Id. (quoting Sorbo, 432 F.3d at 1173). Here, the Court
determines that regardless of whether it analyzes it by reference to the prima face case or the pretext
inquiry, plaintiff’s “evidence of discrimination/pretext fails as a matter of law,” and summary judgment in
favor of defendant is warranted. Id. (quoting Sorbo, 432 F.3d at 1173).
6
27
IV.
Conclusion
Defendant has shown that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law against plaintiff’s ADEA, Title VII, and ADA discrimination claims
and his FMLA retaliation claim. Consequently, the Court grants summary judgment for
defendant on all of plaintiff’s claims.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion for
Summary Judgment (Doc. 33) is granted.
IT IS SO ORDERED.
Dated this 6th day of February, 2015, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?