Martinez v. Unarco Industries, LLC
Filing
116
OPINION & ORDER by Magistrate Judge Kimberly E. West granting 53 Motion for Summary Judgment. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JESUS MARTINEZ,
an individual,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
UNARCO INDUSTRIES, LLC,
a foreign corporation,
Defendant.
Case No. CIV-14-086-KEW
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary Judgment (Docket Entry #53).
On April 21, 1998, Defendant
Unarco Industries, LLC (“Unarco”), a manufacturer of shopping carts,
employed
Plaintiff
Technician.
Jesus
Martinez
(“Martinez”)
Martinez is of Hispanic origin.
as
a
Plating
Unarco provided its
employees, including Martinez, with copies of its Associate Handbook
which sets out the manner in which discrimination complaints may be
brought to the attention of an immediate supervisor, the Human
Resources Manager, or other members of management.
Unarco also
maintains a telephone hotline which employees can call to report any
complaints in connection with their employment.
Additionally, Unarco’s handbook contains a Code of Conduct
which
prohibits
harassing,
or
punishment
for
“[t]hreatening,
coercing
other
these
actions
intimidating,
employees
is
or
listed
interfering,
supervisors.”
in
the
handbook
The
as
“[r]eprimand to Discharge.”
On April 8, 2008, Unarco transferred Martinez to the position
of
Road
Crew
in
Unarco’s
Refurbishing/Recoating
Department.
Martinez’s primary job duty in his new assignment was to travel to
Unarco’s
customers
(“Voyles”)
and
directly
(“Mainard”)
repair
shopping
supervised
supervised
carts.
Martinez
Voyles
and
and
oversaw
Darren
Tommy
all
Voyles
Mainard
of
the
Refurbishing/Recoating Department.
The problems in Martinez’s employment relationship with Unarco
appears to have begun when a supervisor in a department where
Martinez
was
Maintenance
not
assigned
Supervisor
-
-
Jamie
reported
Fulk
what
he
(“Fulk”),
perceived
Unarco’s
to
be
potentially improper conduct by Martinez. In 2009, Fulk complained
to Martinez and Martinez’s supervisor, Jason Butler (“Butler”) that
Martinez was not properly handling per diem monies that were given
to Martinez to cover the expenses of the Road Crew.
Martinez
testified that Fulk’s actions “hurt my feelings” but he did not have
a problem with Fulk reporting his concerns.
Martinez was never
disciplined by Unarco for any problems regarding the distribution of
per diem funds.
On December 10, 2009, Martinez called the hotline to complain
that Fulk had used the “F word” in speaking with him.
Specifically,
Fulk was passing Martinez in a golf cart when he noted Martinez was
2
not
wearing
his
safety
glasses.
Martinez
recalled
that
he
complained that Fulk told him “where are your f****** glasses?” or
“where are your fricking glasses?”
The hotline recorded that
Martinez stated Fulk told him to “Put your f****** glasses on.”
Butler testified that on December 14, 2009, Martinez came to him to
speak about the hotline complaint.
Ultimately, Butler states and
wrote in a report that Martinez told him he did not know if Fulk
said the “F word” then later recanted and, according to Butler,
Martinez stated he actually did not hear what Fulk said to him when
he told him to put his safety glasses on.
Butler testified he asked
Martinez if he wanted him to speak with Fulk and Martinez stated he
would work things out with Fulk.
He also allegedly told Butler that
he had no other issues to discuss regarding Fulk.
Martinez denies any meeting with Butler at all.
Instead,
Martinez testified that he only spoke to Bobby Peters (“Peters”),
who supervised Fulk and managed Unarco’s Maintenance Department.
After Butler reported his discussion with Martinez, Misty
Murray, the Human Resources Manager for Unarco, issued a verbal
warning
to
Martinez
on
December
16,
2009.
The
warning
was
attributed to “misrepresenting the truth in a formal complaint.”
The form documenting the verbal warning bears a signature attributed
to Martinez.
Various other confrontations between Martinez and Fulk are
alleged.
In December of 2012, Martinez witnessed Fulk transporting
3
an empty propane tank of a forklift in what he considered to be an
unsafe manner.
Fulk testified that he felt intimidated during
Martinez’s conversation.
Martinez reported Fulk to Charlie Smith,
a member of the company safety committee.
Martinez and Fulk
testified in their depositions regarding a
recording of a conversation between Martinez and Fulk which Fulk
surreptitiously recorded after the propane tank incident.
Martinez
confirmed his voice on the recording and the accuracy of the
conversation.
Martinez told Fulk that “when somebody give me s**t,
they better have their bases loaded, because I’m gonna make a home
run, and I’m gonna score . . . .”
He also stated in relation to his
thinking at the time of the propane tank confrontation, “oh, mother
f****r, I’m going to get you, one way or the other.
And I got you
. . . yeah, yeah, that’s what I say . . . hey, that’s what I say,
that’s what I say.
Payback is hell.”
While the conversation sounds relatively calm between the two
men, Martinez revealed that he does not like people “talking loud”
to him.
He stated that during their confrontation, he wanted to
punch Fulk when he spoke loudly to him.
that’s what I was gonna do.
He stated, “Yeah, and
You don’t see when I was walking off,
see me when I was walking off by the forklift? . . . You see when I
was walking off?
I was gonna grab a 90 handle, for real.
like, oh s**t, there ain’t nobody gonna talk to me like that.
you say, hey-hey, you calm down.
I was
When
Remember when I told you that?”
4
A 90 handle is described as a part off of a shopping cart.
Fulk stated that they should work together and that Martinez’s
concerns with the propane tank had been brought up with the safety
committee and a policy for the transportation of the tanks was
created.
Another confrontation occurred when Martinez believed Fulk had
removed a pair of coveralls from a forklift and threw them on the
ground.
Fulk testified that he placed the coveralls on a shopping
cart because he needed the forklift.
Another employee witnessed an
employee of an outside company accidentally bak a trailer into the
shopping carts which caused the coveralls to fall on the ground.
Martinez still believed at the time of the deposition that Fulk
threw the coveralls on the ground, stating he had witnesses who he
could not identify that had seen Fulk do so.
On January 24, 2013, Martinez, Fulk, Voyles, Mainard, Peters,
and Murray met to discuss the problems between Martinez and Fulk,
including the coveralls incident.
Fulk also expressed concern that
employees in the Refurbishing Department were using equipment in the
Maintenance Department including a forklift, tractor, and a Volvo
semi-truck.
Fulk stated at the meeting that he did not object to
the employees in the other department using the equipment but since
he was responsible for the vehicles he needed to know who was using
them and the reason the equipment was needed.
Murray, Voyles, Mainard, and Peters implemented a policy where
5
by employees in the Refurbishing Department had to obtain permission
before using the vehicles in the Maintenance Department.
Employees
would have to first contact Voyles who would then notify Fulks.
On February 4, 2013, Martinez became upset when he believed
someone in the Maintenance Department had dumped a sweeper and left
trash on the ground.
of the mess.
He called Fulk over the radio and informed him
He repeatedly told Fulk to “come outside.”
Fulk also stated that he witnessed Martinez driving the Volvo
semi-truck and that he had not obtained permission to do so.
Fulk
and another employee told Martinez to stop using the vehicle.
On February 7, 2013, Fulk found his office had been messed up.
He was told by maintenance employee that Martinez had been in his
office looking for the key to the Volvo truck.
Martinez admitted in
his deposition that he had been in Fulk’s office to obtain the key
but denied that he messed the office up.
He also admitted that he
had not obtained permission to use the vehicle from Voyles or Fulk.
Fulk
then
communicated
with
Martinez
over
Martinez told him repeatedly to “come out back.”
the
radio
and
Fulk went to
Murray’s office to bring her to his office to survey the mess.
As
Murray and Fulk were walking from Murray’s office to Fulk’s office,
Martinez repeatedly told Fulk to “come out back by yourself.”
Murray overheard Martinez’s statements over the radio.
She stated
that Fulk asked Martinez if he had spoken to Voyles and Martinez
responded
“I
don’t
need
Darren;
6
just
come
outside.”
Murray
considered Martinez’s tone “angry, aggressive.”
She further stated
in explanation that “[e]ven though he didn’t say, Bring you ass
outside, that’s what it sounds like.” She also described Martinez’s
tone as “antagonistic.”
On February 7, 2013, Unarco suspended Martinez for three days
pending an investigation into his behavior.
Murray called Martinez
into her office and told him he was suspended for threatening
another employee, Fulk.
Murray told Martinez to return on February
12 and the investigation would be ready.
Disciplinary Action form and he signed it.
Murray gave Martinez a
Martinez was told by
another employee that he was going to be terminated for making
threats to Fulk over the radio.
Murray testified that she conducted an investigation into
Martinez’s conduct, speaking to other Unarco employees.
However,
she stated that the investigation was going to be “minimal” because
she was the “main witness” to Martinez’s conduct.
Butler
and
Mainard
to
discuss
Martinez.
She
Murray met with
discussed
the
statements of other employees and Martinez’s statements over the
radio to Fulk which she overheard.
a decision to terminate Martinez.
The outcome of the meeting was
The decision was made as a group.
None of Martinez’s past disciplinary record was discussed at this
meeting.
On February 12, 2013, Martinez returned to Murray’s office and
was informed that he was terminated.
7
Murray presented him with a
Disciplinary Action form explaining that he had been terminated for
threatening another employee.
Martinez took the form home, signed
it, and mailed it back to Unarco.
He expressed no complaints
against Murray, Butler, or Mainard.
Fulk was the only person
Martinez believed “didn’t like me.”
Martinez stated in his deposition that about ninety percent of
Unarco employees are Hispanic.
He would like to return to work and
feels they would treat him with respect.
On February 14, 2013, Martinez sent a letter to Unarco stating
he believed that he had been discharged due to a misunderstanding
and that he did not intend to harass or threaten.
He also did not
believe one violation was ground for termination.
Unarco did not rescind Martinez’s termination. It also did not
replace Martinez.
On March 7, 2014, Martinez commenced this action, alleging
violations of Title VII for race discrimination and retaliation; 42
U.S.C. § 1981 for race discrimination and retaliation; negligent
supervision; and failure to provide notice of a COBRA election.
On
May 29, 2014, Martinez dismissed the Title VII retaliation claim.
On June 29, 2015, he dismissed the § 1981 retaliation claim, as well
as the claims for negligent supervision and for a COBRA violation.
Thus, the sole remaining claims are for race discrimination in
violation of Title VII and § 1981.
Summary judgment is appropriate only if there is no genuine
8
dispute of material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter–Chem Coal
Co., Inc., 41 F.3d 567, 569–70 (10th Cir. 1994).
Whether there is
a genuine dispute as to a material fact depends upon whether the
evidence presents a sufficient disagreement to require submission to
a jury or is so one-sided that one party must prevail as a matter of
law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986);
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).
Once the moving party meets its initial burden of demonstrating an
absence of a genuine dispute of material fact, the burden then
shifts to the nonmoving party to demonstrate the existence of a
genuine dispute of material fact to be resolved at trial.
See
1–800–Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th
Cir. 2013)(citation omitted).
A fact is “material” if it pertains
to an element of a claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went to
trial, a reasonable jury could return a verdict for either party.
Anderson, 477 U.S. at 248.
The facts must be considered in the
light most favorable to the nonmoving party.
Cillo v. City of
Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013)(citations
omitted).
The Court will not consider statements of fact, or rebuttals
9
thereto, which are not material or are not supported by competent
evidence.
Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Only
admissible evidence may be considered when ruling on a motion for
summary judgment.
Jaramillo v. Colorado Judicial Dep't, 427 F.3d
1303, 1314 (10th Cir. 2005)(citation omitted) (holding that hearsay
evidence is not acceptable in opposing a summary judgment motion);
World of Sleep, Inc. v. La–Z–Boy Chair Co., 756 F.2d 1467, 1474
(10th Cir. 1985).
Affidavits must be based on personal knowledge
and must set forth facts that would be admissible evidence at trial.
Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995)
(quotations and citation omitted). “Conclusory and self-serving
affidavits are not sufficient.”
Id.
Whether asserted through the vehicle of 42 U.S.C. § 1981 or 42
U.S.C. § 2000e–2(a) (Title VII), Martinez’s race discrimination
claims require an identical analysis. Drake v. City of Ft. Collins,
927 F.2d 1156, 1162 (10th Cir. 1991).
To state a prima facie case
of race discrimination, Martinez must show (1) that he is a member
of a racial minority; (2) that he suffered an adverse employment
action; and (3) that similarly situated employees were treated
differently.
Trujillo v. University of Colo. Health Sciences Ctr.,
157 F.3d 1211, 1212 (10th Cir. 1998).
To establish a case of
intentional discrimination, Martinez has two options –
satisfy
his
burden
of
proof
by
10
offering
direct
he may
evidence
of
discriminatory intent or he may demonstrate such intent indirectly
by following the McDonnell Douglas burden-shifting framework. Thomas
v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997).
To prevail by coming forth with direct evidence, “a plaintiff
must introduce direct or circumstantial evidence that the alleged
[discriminatory] motive ‘actually relate[s] to the question of
discrimination in the particular employment decision, not to the
mere
existence
of
other,
potentially
discrimination in the workplace.’”
unrelated,
forms
of
Medlock v. Ortho Biotech, Inc.,
164 F.3d 545, 550 (10th Cir. 1999)(citations omitted). ; see also
Thomas,
111
F.3d
discriminatory
at
motive
1512
by
(holding
“presenting
that
plaintiff
‘evidence
of
may
prove
conduct
or
statements by persons involved in the decision making process that
may be viewed as directly reflecting the alleged [retaliatory]
attitude.’”)(citations omitted).
Martinez has not come forward with any direct evidence of
racial animus.
Some stray comments were referenced in the record
concerning African-Americans and “Mexicans”.
However, Martinez
admits that Unarco is a generally favorable working atmosphere for
Hispanics.
Moreover, no direct racial animus had been demonstrated
in the decision making process resulting in the adverse employment
action taken again Martinez.
As a result, the McDonnell Douglas
framework must be employed.
Certainly,
Martinez
has
satisfied
11
the
first
element
of
demonstrating membership in a protected minority class. He has also
shown
that
he
suffered
an
adverse
employment
action
in
his
termination.
As to the third element, Martinez has not proved that the
decision to terminate him was motivated by race or through unlawful
discrimination based upon his race.
Martinez has not alleged any
racial statements or discriminatory conduct by any of the parties
who decided to terminate him - Murray, Butler, or Mainard.
While
not a decision maker, Martinez has also failed to demonstrate the
Fulk was motivated by racial animus. Martinez testified that he had
never heard Fulk make a racial comment.
He attempted to explain his
deposition testimony with a subsequent affidavit by stating he
believed Unarco’s attorney asked if he had heard Fulk make a
derogatory comment about African-Americans which he did not.
He
states in his affidavit that when Spanish was spoken over the radio,
Fulk would state “this is an American channel.
language here.”
We don’t speak that
He also thought Fulk yelled at Hispanic employees.
To the extent the subsequent affidavit is appropriate - which
it generally is disallowed when used to create a “sham factual
dispute” - the comments attributed to Fulk are only tangentially
racially based and not evidence of direct racial animus.
Moreover,
Martinez stated that ninety percent of the employees of Unarco were
Hispanic.
It stands to reason that the employees involved in any
harsh tones from supervisors would be of Hispanic origin.
12
Rather, Martinez brings his claims based primarily upon the
allegation that other similarly situated employees who do not belong
to a protected class engaged in conduct similar to that alleged
against
Martinez
but
did
not
suffer
termination.
Martinez
originally offered the affidavits of Unarco employees Dennis Korte
(“Korte”), James Potts (“Potts”), Chris Daniels (“Daniels”), and
Stacy Yates (“Yates”). At its request, Unarco was permitted to take
the depositions of these witnesses to ascertain the basis of their
affidavit statements. The parties were then permitted to supplement
the briefing on the Motion with their discovery and additional
arguments.
This case does not present the typical situation where an
affidavit is offered subsequent to a deposition.
The affidavits
were offered as exhibits to the original briefs and then the
depositions were taken.
While the affidavits will be given some
consideration, the depositions offer the most detailed explanation
of events from the perspective of the four other employees.
Korte testified that he worked in the Maintenance Department
with
Fulk
as
his
supervisor
and
Peters
overseeing
the
entire
Maintenance Department. He did not consider that Fulk discriminated
against Martinez.
“micro-managed”
Rather, Korte’s problem with Fulk was that he
employees.
He
also
believed
experience lead him to his management style.
Fulk’s
military
Korte testified that
Fulk at one point informed them that he did not have their backs
13
regarding a safety issue that arose at work.
Korte told him if they
were in battle and Fulk was the leader and made that statement, then
he “would be a dead son of a bitch and I would be the first
motherf****r to shoot you.”
Korte stated he told Fulk this because
of their mutual military background.
threatening
Fulk.
No
other
member
He did not mean he was
of
management
within
the
department heard the statement.
Potts testified he was supervised by Fulk in the Maintenance
Department.
They butted heads a lot but they worked well together.
He complained to Peters about Fulk making him clean up scrap
cuttings when he did not make the mess.
who
suspended
him
for
three
days
Peters sent Potts to Murray
for
insubordination.
Potts
testified that on one occasion, he told Fulk that “when I get
another job, we’re going to go out back and have a talk.”
He stated
that he did not intend this statement as a threat to Fulk because he
knew he would be terminated for doing so.
reported
to
Murray
or
Human
Resources
This statement was not
and
no
one
from
that
department directly heard the statement being made.
Yates testified that he argued loudly with Fulk.
One incident
he remembered had to do with Yates returning to work from a break.
Yates never threatened Fulk, made any physical contact with him, or
used profane language.
They took their dispute to Murray and Yates
considered it resolved as best they could.
14
Daniels testified about an incident between 2003 and 2006 that
occurred while both he and Fulk were supervisors.
They had a heated
argument when Fulk called Daniels a “stupid motherf****r”, Daniels
said “f*** you” and struck Fulk flat handed in the face.
As far as
Daniels knows, the incident was not reported to anyone and Fulk
later apologized.
Unarco.
This incident occurred before Murray worked at
Other incidents of cussing at one another occurred.
“One method by which a plaintiff can demonstrate an inference
of discrimination is to show that the employer treated similarly
situated
employees
favorably.”
[who
are
not
in
the
protected
class]
more
Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir.
2011)(bracketed information added by this Court).
Generally, to be
similarly situated, employees must deal with the same supervisor.
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006).
The
basis for this requirement lies in the reasoning that “[d]ifferent
supervisors
will
inevitably
react
differently”
to
employee
misconduct. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1233 (10th Cir. 2000).
Clearly, Korte, Daniels, Yates, and Potts were not similarly
situated
with
Martinez.
They
each
Department under Fulk and Peters.
worked
in
the
Maintenance
Testimony indicated that under
Unarco’s management system, all employees are assigned to individual
departments and each department has its own supervisor and manager
who are responsible for assigning work. Supervisors and managers in
15
one department cannot issue discipline or make employment decisions
for employees in another department. In the Maintenance Department,
Fulk and Peters assigned the employees in the department their work
tasks, made sure they complied with company policies, conducted
their annual performance evaluations, made wage decisions for their
employees, and had input in any disciplinary action taken against
them, together with Murray.
Fulk and Peters did not have any
influence over the disciplinary decisions made with regard to
employees in other departments.
Martinez was employed in the Refurbishing Department where
Voyles and Butler were his supervisors at various times and Mainard
was
his
manager.
Neither
Fulk
nor
Peters
were
involved
in
Martinez’s discipline.
The fact that most separates the occurrences involving these
four employees from Martinez’s discipline and termination was the
fact that Murray was a witness to the threatening behavior and acted
on her own observations.
She was not privy to any of the disputes
between the four employees in the Maintenance Department and Fulk.
Martinez contends Murray’s involvement in discipline for all
departments obviates the requirement recognized under the law for
the same supervisors for similarly situated employees.
However, it
is clear that the individual supervisors and managers for each
department were integral in the disciplinary decisions with Murray
and, therefore, were still crucial in the decision making process.
16
The concern that different supervisors may react differently to
similar circumstances remains.
The unusual aspect of Martinez’s
termination was Murray’s actual first hand observation of the
transgression.
To
the
extent
Martinez
alleges
that
Fulks
reported
the
threatening incident involving him but not the other four identified
employees, the evidence does not indicate that Fulks reported any
threatening conduct by Martinez.
The discipline acted upon by
Murray, Butler, and Mainard stemmed from Murray’s witnessing of
Martinez’s statements over the radio, not on any complaint by Fulks
that he had been threatened by Martinez.
This Court must conclude that Martinez has failed to provide
supporting
evidence
to
maintain
a
prima
facie
discrimination under either Title VII or § 1981.
case
of
race
To that end,
Unarco is entitled to summary judgment on all remaining claims
asserted in this action.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Docket Entry #53) is hereby GRANTED.
Judgment will be
entered for Defendant accordingly.
IT IS SO ORDERED this 25th day of March, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
17
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?