Thompson v. Sun Valley Radio
Filing
89
MEMORANDUM DECISION granting in part and denying in part 72 Motion for Summary Judgment. Signed by Magistrate Judge Samuel Alba on 4/30/12. (alp)
IN THE UNITED STATES DISTRICT CO!JR:P····
DISTRICT OF UTAH, CENTRAL DIVISt~ t."
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WAYNE THOMPSON, JR.,
Plaintiff,
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MEMORANDUM DECISION
AND ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT
vs.
SUN VALLEY RADIO, INC.,
dba KVFX-FM/CACHE V ALLEY RADIO
GROUP,
Defendant.
Case No. 1:09-cv-177 SA
Magistrate Judge Samuel Alba
Defendant Sun Valley Radio, Inc.' s ("Sun Valley") second Motion for Summary
Judgment is now before the court. (Dkt. No. 72). Plaintiff alleges he experienced racial, sexual,
and religious workplace discrimination while employed by Sun Valley, and was eventually
terminated from his position as a result. He has brought suit under Title VII and 42 U.S.C. §
1981 alleging negligent discrimination and subsequent retaliation. Second Amended Complaint
("Complaint"), Dkt. No. 16 (Mar. 23, 2010). Defendant asserts that summary judgment should
be granted because no genuine dispute as to any material fact exists and it is entitled to judgment
as a matter of law.
Having carefully reviewed the parties' pleadings and the record in this case, and having
1
heard oral arguments, the court concludes, viewing all facts in the light most favorable to the
plaintiff, that the Title VII negligence and 42 U.S.C. § 1981 claims fail as a matter of law. The
court also concludes, however, that a genuine dispute as to material facts precludes summary
judgment as to Plaintiffs Title VII retaliation claim. Therefore, the court GRANTS IN PART
and DENIES IN PART Defendant's motion.
LEGAL STANDARD OF REVIEW
Summary judgment is appropriate only "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The court must view all evidence and draw all reasonable inferences therefrom in
the light most favorable to Plaintiff Wayne Thompson, Jr. ("Thompson"), the nonmoving party.
See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (lOth Cir. 2006).
FACTS
Thompson was employed by Sun Valley as a radio disc jockey. Thompson's immediate
supervisor was Nick Thomas ("Thomas"), who was in tum supervised by Lynn Simmons
("Simmons"). Simmons reported to the owner of the radio station, Kent Frandsen ("Frandsen").
It is undisputed that Thomas regularly called Thompson by potentially offensive names.
Thompson alleges that several of these nicknames, including "numb nuts," "dick suck," and
"douche bag," are particularly offensive to men and constituted sexual discrimination.
Defendants argue such language was used by all employees, including Thompson, and that
Thomas called Thompson's coworkers, both male and female, by the same terms. Plaintiffs
Memorandum in Response to Defendant's Motion for Summary Judgment ("Memo. Opp."), Dkt.
No. 74, Ex. 1 at 146-47. Thompson disputes ever having used such language or having heard it
2
directed at anyone else. Id. Ex. 2 at 29.
Another of the nicknames commonly used by Thomas was "monkey." Thompson, who
alleges he was the only African-American employed by Sun Valley, states the term is racially
offensive and alleges Thomas used the term to make Thompson feel uncomfortable.
Thompson also alleges religious discrimination. Thomas was a member of the Church of
Jesus Christ of Latter Day Saints ("the LDS Church"). He learned that Thompson was also
affiliated with the church when Thompson told Thomas that Thomas' grandfather was one of
Thompson's ecclesiastical leaders. Id. Ex. 3 at 40. Devout male members of the LDS Church
typically serve missions upon turning nineteen years old. After Thompson's nineteenth birthday,
he alleges Thomas pressured him to go on a church mission, eventually telling him that he would
be fired if he did not. Id. Ex. 2 at 34-35.
On October 10, 2006, Thompson called Simmons, Thomas' supervisor, reporting the
perceived discrimination. Simmons instructed Thompson to prepare a written letter detailing his
complaints, which was completed that same night. The next day, October 11, 2006, Simmons
met with Thomas and Thompson to address the problem. Thompson reports that throughout the
meeting, Simmons sided with Thomas in characterizing the insults as jokes. Id. at 44, 65-68.
Furthermore, other than the meeting with Thompson and Simmons, and a second meeting with
Simmons alone, Thomas was not reprimanded for his behavior. Id. Ex. 1 at 148-49. Simmons
did, however, tell Thomas to "be civil" and "treat [Thompson] with respect." Id. Ex. 2 at 44-45.
Following the meeting Thomas began communicating with Thompson primarily in writing, and
no longer called him potentially offensive names. Id. at 45. Thomas reports Simmons followed
up with him to ensure the behavior had stopped. Id. Ex. 3 at 51.
3
Thompson alleges that discrimination against him continued, however. At or shortly after
the meeting, he was changed from a salaried employee to an hourly one. Id. Ex. 2 at 105.
Although the hourly wage at forty hours a week would have roughly equaled his previous salary,
Thompson alleges his hours were also curtailed so that Sun Valley began paying him
significantly less. Id. at 108. Sun Valley alleges the change was necessary for productivity, as
Thompson had been taking advantage of his salaried status by working few hours, but that he had
previously abused an hourly wage by accumulating unnecessary overtime. Id. Ex 1 at 89,
178-79.
Following Thompson's transition from salary to an hourly wage, a sign appeared near the
time cards reminding Thompson and the three other hourly employees, by name, to fill them out.
Id. Ex. 2 at 54-55. Thompson believes this note was meant to alert Thompson's coworkers that
he had been taken off salary and that it constituted continuing harassment.
Other signs also appeared, one instituting a new late policy the day after Thompson was
tardy, and one stressing only recyclables could be thrown in the recycling can, which appeared
the day after Thompson put non-recyclable trash in the receptacle. Both parties agree that other
employees were sometimes tardy, or threw garbage into the recycling bin. Sun Valley argues this
shows the signs were not meant to harass Thompson, while Thompson contends that the fact
signs were put up only after he, and not his coworkers, engaged in the unwanted behavior shows
he was being directly targeted. 1
1 Thompson also describes a conversation he had with another employee, Kyle Jorgensen
("Jorgensen"). Thompson alleges Jorgensen told him that, even after the meeting, Thomas
expressed anger that Thompson was not planning on going on a church mission. Memo. Opp.
Ex. 2 at 45-46. Based on the record before the court, this statement is inadmissible hearsay and
cannot be considered in reviewing the motion for summary judgment. See Adams v. Am. Guar.
4
Eventually, in early February of 2007, Thompson left Sun Valley. The parties dispute
whether he voluntarily quit or was fired. Frandsen, the station owner, told Thompson his job was
being replaced by an automated voice-tracking system to save costs. fd. Ex. 2 at 10; Ex. 6.
Frandsen also told Thompson he was an at-will employee and Sun Valley was free to terminate
him for no reason. fd. Ex. 1 at 60; Ex. 6. In a letter to the Equal Employment Opportunity
Commission ("EEOC"), Thomas claimed Thompson was fired for tardiness, unexcused failure to
attend a staff meeting, using an on-the-clock intern to give him a ride to work, playing
inappropriate phone calls on the air, and calling in sick. fd. Ex. 4. All of these events allegedly
occurred within the three weeks preceding Thompson's alleged termination. Id. Despite all these
proffered reasons on the record and the fact that Thompson collected unemployment after leaving
the station, Sun Valley maintains that Thompson voluntarily quit his position. fd. Ex. 1 at 43-44.
Sun Valley has said it began negotiations with other radio talent to replace Thompson before
Thompson left the company. Id. Ex. 3 at 107.
After his employment at Sun Valley ended, Thompson brought his complaints before the
& Liab. Ins. Co., 233 F.3d 1242, 1246 (lOth Cir. 2000) ("Hearsay testimony that would be
inadmissable at trial cannot be used to defeat a motion for summary judgment because a third
party's description of a witness' supposed testimony is not suitable grist for the summary
judgment milL") (internal quotation marks omitted).
Additionally, Thompson alleges that after the October 2006 meeting, Thomas told him
that Sun Valley's management felt Thompson "was sounding too black on the station" and that
Thompson "may need [to] make it so [he] sounded more white." Memo. Opp. Ex. 2 at 48,51.
Thompson does not allege that this showed racial bias on Thomas' part, however. Id. at 43
(noting Thomas "was appalled" that the station told Thompson to sound less black). Rather, he
stated the comment showed racial bias on the part of management. fd. at 50. In this context, the
statement is inadmissible hearsay. See Powell v. Laborers Union No.1 271,426 Fed. App'x 615,
621 (lOth Cir. 2011) (noting that although testimony by an employee of racially biased
statements of another employee is admissible, testimony by an employee [Thompson] of another
employee's [Thomas'] statements recounting a third party's [management's] racial bias are
inadmissible hearsay).
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EEOC. The EEOC was unable to settle the matter, and sent Thompson Notice of Right to Sue.
Following receipt of this letter, Thompson filed suit before this court seeking damages,
restoration of his employment, and injunctive relief. Parties have consented to jurisdiction by the
undersigned magistrate judge. (Dkt. No. 25).
ANALYSIS
In its motion for summary judgment, Sun Valley contends that Thompson's Title VII
Negligence and Hostile Work Environment claims 2 are barred because Sun Valley did not know
of the harassment and, alternatively, because the station took prompt and effective measures to
stop the allegedly discriminatory behavior after it came to light. Sun Valley also argues that
Thompson's Title VII Negligence and Hostile Work Environment claims must fail because the
complained-of behavior was not unwelcome, it was not motivated by an unlawful animus, the
station did not have knowledge of the situation, and the alleged discrimination was not severe or
pervasive. Finally, with regards to Thompson's Title VII Retaliation claim, Sun Valley
maintains no adverse action was taken by the company against Thompson and there was no
causal connection between any employment actions and Thompson's complaints about
discrimination. The court will consider each of these arguments in turn and, for the reasons
explained below, hold that these arguments do not eliminate the issues of disputed fact which bar
summary judgment.
I.
NEGLIGENCE
In order to successfully bring a Title VII negligence claim, a plaintiff must show his
2
"[T]he elements of a hostile work environment claim under § 1981 are the same as
those under Title VII." Tademy v. Union Pac. Corp., 614 F.3d 1132, 1152 (lOth Cir. 2008).
6
"employer fail[ed] to remedy a hostile work environment it knew or should have known about."
Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir. 2001). "Because an employer is only
potentially liable for negligence in remedying and preventing harassment of which it negligently
failed to discover, courts must make two inquiries: first into the employer's actual or constructive
knowledge of harassment, and second, into the adequacy of the employer's remedial and
preventative responses to any actually or constructively known harassment." Tademy v. Union
Pac. Corp., 614 F.3d 1132, 1147 (lOth Cir. 2008) (quoting Alder v. Wal-Mart Stores, Inc., 144
F.3d 664, 673 (lOth Cir. 1998)). Sun Valley has argued that neither knowledge nor inadequate
response can be shown here.
A.
Knowledge
Taking the facts in the light most favorable to Thompson, it is clear that Sun Valley knew
or should have known of the alleged harassment. Simmons, the station manager, stated that he
was aware of the name calling that led to Thompson's complaint. Memo Opp. Ex. 1 at 146-47
("I had heard a little bit [of this type of language] in the hall and 1 ... just thought it was
camaraderie between the staff the way they spoke."). Thompson has not alleged, however, that
Simmons knew the language in question was offensive or unwelcome, or that Simmons knew
Thomas was directing this language towards Thompson. Furthermore, Thompson does not
allege that Simmons knew of Thomas' threats that Thompson would be fired if he did not go on a
church mission. Therefore, based upon the evidence in the record, a jury could not reasonably
find that Sun Valley knew of the harassment before Thompson brought it to Simmon's attention
through his formal complaint.
However, Simmons clearly knew of the harassment on October 10, 2006, because
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Thompson reported that conduct to him, both in conversation and in writing. "Actual knowledge
[of harassment] will be demonstrable in most cases where the plaintiff has reported harassment to
management-level employees.,,3 Alder, 144 F.3d at 673. Taking all facts in the light most
favorable to Thompson, Sun Valley knew of the purported harassment beginning on October 10,
2006.
B.
Prompt and Effective Response
Sun Valley's response was prompt. After being informed by Thompson that he felt
harassed at the work place, Simmons almost immediately arranged a meeting between himself,
Thomas, and Thompson. That meeting was held the day after Thompson first complained to
Simmons. Therefore, this response was prompt. Cf Scarberry v. Exxonmobil Oil Corp., 328
F.3d 1255, 1258 (lOth Cir. 2003) (holding even though a supervisor did not come in on his day
off to address alleged harassment, an investigation into the problem the following day constituted
a prompt response).
The more difficult question is whether Sun Valley's response was effective. Only a
single meeting was held between Simmons, Thomas, and Thompson to resolve the problem.
While Simmons may have followed up with Thomas to ensure the harassment had stopped, no
one has testified management followed up with Thompson. Thompson emphasizes that
Simmons sometimes defended Thomas at the meeting, and outside private meetings Thomas was
never reprimanded or punished for his allegedly offensive behavior.
Defendant asserts that the response was effective because it stopped the harassment. See
Although exceptions exist, such as when the employee makes their complaints to a
manager who is the alleged source of the harassment, this is not the situation currently before the
court. See Chapman v. Carrnike Cinemas, 307 Fed. App'x 164,174 (10th Cir. 2009).
3
8
Alder, 144 F.3d at 676 (noting "a stoppage of harassment shows effectiveness"). The parties do
not dispute that after the meeting, Thomas ceased calling Thompson by potentially offensive
nicknames. Thompson contends, however, that he continued to be harassed by the notes left in
workplace common areas.
Therefore, the issue before the court is whether the alleged harassment following the
meeting was sufficient to constitute a hostile work environment. If not, then given the
promptness of Sun Valley's response, no reasonable jury could find that the defendant was
responsible for failure to remedy a hostile work environment, even if such a hostile work
environment had initially existed.
II.
HOSTILE WORK ENVIRONMENT
Title VII negligence claims arise when an employer allegedly "fails to remedy a hostile
work environment." Hollins, 238 F.3d at 1258. To establish a hostile work environment existed
in violation of law, Thompson must show that he was subjected to unwelcome harassment, based
upon sex, race, or religion, and "due to the harassment's severity or pervasiveness, the
harassment altered a term, condition, or privilege of the plaintiff s employment and created an
abusive working environment." Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (lOth Cir. 2007)
(sexually hostile work environment); see also Chavez v. New Mexico, 397 F.3d 825,832 (lOth
Cir. 2005) (racially hostile work environment); Belgasem v. Water Pik Techs., Inc., 475 F. Supp.
2d 1205, 1219-20 (D. Colo. 2006) (religiously hostile work environment). Sun Valley argues
Thompson has not adequately made this showing because the alleged harassment was not
unwelcome, it did not stem from an unlawful animus, and it was not severe or pervasive.
9
A.
Unwelcomeness
In order to constitute harassment, conduct "must be unwelcome in the sense that the
employee did not solicit or incite it," and the employee indicated by his own conduct that the
alleged harassment was undesirable or offensive. Morton v. Steven Ford-Mercury ojAugusta,
Inc., 162 F. Supp. 2d 1228, 1238 (D. Kan. 2001) (quoting Bales v. Wal-Mart Stores, Inc., 143
F.3d 1103, 1108 (8th Cir. 1998)); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,69
(1986). Sun Valley argues that Thompson participated in sexually joking about other employees
and used offensive pet names himself. This is, however, a disputed issue of fact, and Thompson
maintains he did not participate in the allegedly offensive banter.
Sun Valley also argues that Thompson cannot say the alleged religious pressure was
unwelcome because Thompson instigated a religious conversation when he told Thomas that
Thomas' grandfather was the bishop of Thompson's congregation. The court agrees with
Thompson that this conversation between Thomas and Thompson was a discussion about family
and community ties, not an invitation by Thompson for Thomas to take an active role in his
spirituallife. Cf Morton, 162 F. Supp. 2d at 1239 (noting a plaintiffs initiation of a workplace
conversation about nude sunbathing does not establish plaintiff welcomed subsequent sexual
harassment). Therefore, the court finds that, taking the facts in the light most favorable to
Thompson, the alleged harassment before the meeting was unwelcome.
The court will similarly assume that the notes posted after the meeting were also
unwelcome. Thompson has stated that at least one of the notes offended him. Memo Opp. Ex. 2
at 47. Sun Valley does not dispute this. Memorandum in Support of Defendant's Motion for
Summary Judgment at 8, Dkt. No. 72 (from Defendant's proposed "Undisputed Material Facts").
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B.
Animus
Sun Valley also argues that the alleged harassment, particularly the nick names such as
"douche bag" and "monkey," were meant to be harmless and did not arise from any racial,
sexual, or religious animus. It is true that if Thomas did not mean for any of the utterances to be
offensive, they could not constitute a hostile work environment even if Thompson was offended
by them. See Gross v. BurggrafConst. Co, 53 F.3d 1531, 1537 (lOth Cir. 1995); see also
Meritor, 477 U.S. at 67. The court also notes that issues of intent, when plaintiff raises plausible
arguments from "which a jury could infer a discriminatory motive," are generally better
addressed at trial than through summary judgment. Randle v. City ofAurora, 69 F.3d 441, 453
(10th Cir. 1995) (citing Romero v. Union Pac. R.R., 615 F.3d 1303, 1309 (lOth Cir. 1980)
(stating in the employment context, issues of motive and intent are "particularly inappropriate for
summary judgment") and Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993) ("If the
plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the employer's
stated motive, summary judgment is inappropriate, because it is for the trier of fact to decide
which story is to be believed.")).
The court concludes that, taking all facts in the light most favorable to Thompson, the
issue of animus cannot be decided at the summary judgment stage. The terms which Thomas
used, including "numb nuts," "dick suck," and "monkey" are phrases which can be sexually or
racially offensive. Thompson maintains that other employees were not subjected to this same
type of harassment, a fact which, if believed by the jury, could support a reasonable finding that
Thomas used the terms with the intent to demean Thompson. Furthermore, it is not unreasonable
to believe that when Thomas told Thompson he would be fired ifhe did not go on an LDS
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church mission, Thomas was intending to harass Thompson on the basis of religion.
Following the meeting, the only admissible evidence of harassment are the three posted
notes. None of these notes contained any racial, sexual, or religious references. Taking the facts
in the light most favorable to Thompson, however, the notes arose in the context of ongoing
discrimination and were targeted directly towards him, the only African-American employee at
the station. Assuming without deciding that a jury could reasonably find that the notes arose
from racial, sexual, and/or religious animus, the court proceeds to the third step of the analysis:
whether the alleged harassment was sufficiently severe and pervasive to support a finding of a
hostile work environment.
C.
Severe or Pervasive
Even when harassment is unwelcome and motivated by discriminatory intent, it only
creates a hostile work environment when it is so severe or pervasive as to "alter[] a term,
condition, or privilege of the plaintiffs employment and create[] an abusive working
environment." Harsco Corp., 475 F.3d at 1186 (lOth Cir. 2007). "Title VII does not establish a
general civility code for the workplace. Accordingly, ... run-of-the mill boorish, juvenile, or
annoying behavior ... is not the stuff of a Title VII hostile work environment claim." Morris v.
City oJColo. Springs, 666 F.3d 654,664 (lOth Cir. 2012) (internal quotation and citations
omitted).
Prior to the October 2006 meeting, the sexual and racial language at Sun Valley may have
been pervasive. Memo. Opp. Ex. 1 at 146 (Simmons testifying he "heard everyone" using
language such as "monkey"); Id at 154 (Simmons testifying Thomas "regularly" used the term
"douche bag"). It is also undisputed that Thomas told Thompson he would be terminated if he
12
did not participate in an LDS church mission, which could be considered severe.
Following the meeting between Thompson, Thomas, and Simmons on October 11,2006,
however, any remaining harassment was not severe or pervasive. Thompson complains of only
three notes, over a period of several months. None of these notes contain discriminatory
language, and instead emphasize that employees were to be on time, record their hours, and
refrain from throwing nonrecyclables in the receptacle designated for recyclable waste. Even if
these notes offended Thompson, and even if they were written by Thomas with the intention of
harassing Thompson on account of his sex, race, or religious beliefs, they were not sufficiently
severe or pervasive to constitute a hostile work environment.
Taking the facts in the light most favorable to Thompson, a hostile work environment
may have existed at Sun Valley prior to October 2006. However, the facts do not support a
reasonable finding that a hostile work environment persisted following the October 2006
meeting. Therefore, Sun Valley's response to its knowledge of the alleged harassment was both
prompt and effective, and the court grants summary judgment in favor of the defendant on
Thompson's claims of Title VII negligence and 42 U.S.C. § 1981.
III.
RETALIATION
Title VII prohibits an employer from retaliating against an employee because the
employee has opposed discriminatory employment practices. Pinkerton v. Colo. Dep 'f of
Transp., 563 F.3d 1052, 1064 (lOth Cir. 2009). "To establish a prima facie case of retaliation, a
plaintiff must demonstrate (l) that he engaged in protected opposition to discrimination, (2) that
a reasonable employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse action." Id
13
Defendant argues that Thompson has not reasonably shown the existence of the last two elements
of a retaliation claim.
Once the plaintiff makes a prima facie showing of retaliation, "the employer must
articulate a legitimate, nondiscriminatory reason for the adverse employment action." Id.
(internal quotation marks omitted). "If the employer articulates a legitimate reason for the action,
then the plaintiff must demonstrate that the employer's asserted reasons are pretextual." Id. In
addition to arguing that Thompson cannot make a prima facie showing of retaliation, Sun Valley
also contends that any actions it did take were for legitimate reasons and Thompson cannot show
pretext. The court will consider each of these arguments in tum.
A.
Adverse Action
An adverse employment action is one which "might well have dissuaded a reasonable
worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 54 (2006). "[W]hile the standard is sensitive to the particular
circumstances of each case, it prescribes an objective inquiry that does not tum on a plaintiffs
personal feelings about those circumstances." Semsroth v. City ofWitch ita, 555 F.3d 1182, 1184
(10th Cir. 2009).
Taking the facts in the light most favorable to Thompson, Sun Valley simultaneously
changed him from a salaried employee to an hourly one and curtailed his hours to part-time, thus
significantly reducing his pay. The Tenth Circuit has found "that the prospect of losing wages"
would deter a reasonable worker from supporting a charge of discrimination. McGowan v. City
ofEufala, 472 F.3d 736, 742 (lOth Cir. 2006). Therefore, such a change in pay could constitute
an adverse action.
14
Furthennore, Thompson contends he was tenninated from Sun Valley. "It hardly requires
stating that when an employer tells an employee that []he no longer has ajob, that employee's
job status has been significantly and materially altered" in a way that constitutes an adverse
employment action. Wells v. Colo. Dep 'f of Transp. ,325 F.3d 1205, 1216 (lOth Cir. 2003).
B.
Causally Related
Thompson must also show that there could be a causal relationship between his protected
activity of complaining of discrimination and the adverse employment actions of being fired and
tenninated. "A causal connection is established where the plaintiff presents evidence of
circumstances that justify an inference of retaliatory motive." MacKenzie v. City & Cnty. of
Denver, 414 F.3d 1266, 1279 (lOth Cir. 2005). In the Tenth Circuit, "protected conduct followed
closely by adverse action may justify an inference of retaliatory motive." Marx v. Schnuck Mkfs.,
Inc., 76 F.3d 324, 329 (lOth Cir. 1996).
Taking the facts in the light most favorable to Thompson, his pay was changed and his
hours were dramatically curtailed at or shortly after the meeting with Thomas and Simmons.
Memo. Opp. Ex. 2 at 105 ("I was on salary until my meeting with Nick [Thomas] and Lynn
Simmons, where my salary was reduced and taken back down to hourly again."). This close
temporal proximity is sufficient to support an inference of a causal connection between
Thompson's complaints and his change from a full-time salaried employee to part-time hourly
compensation.
In contrast, approximately four months passed between the October 2006 meeting and
Thompson's alleged tennination. This amount oftime, in itself, may not be sufficient to support
an inference of retaliatory motive. When considered in the context of the earlier hour reduction
15
and the workplace notes, however, a reasonable jury could infer that the tennination was
motivated by a retaliatory motive and find a causal connection between Thompson's grievances
and tennination. Therefore, the court finds that, taking all facts in the light most favorable to
Thompson, the record supports a prima facie case of retaliation.
C.
Pretext
Under the Mcdonnell Douglas burden-shifting framework, however, once a plaintiff
establishes a prima facie case the employer has the opportunity to show legitimate reasons
existed for the adverse employment actions. In this case, Sun Valley has advanced many such
reasons. It has alleged the salary change and tennination were made for budget reasons, that no
justification was needed to tenninate Thompson, and that Thompson was fired for misconduct.
After an employer advances legitimate reasons for an adverse employment decision, if a
plaintiff "presents evidence that the defendant's proffered reason for the employment
detennination was pretextual, i.e. unworthy of belief, the plaintiff can withstand a summary
judgment motion and is entitled to go to triaL" Randle, 69 F.3d at 451. Thompson has made
several arguments to establish Sun Valley'S proffered reasons were pretextuaL
First, "close temporal proximity is a factor in showing pretext, [although it] is not alone
sufficient to defeat summary judgment." Annett v. Univ. ofKan., 371 F.3d 1233, 1240 (lOth Cir.
2004). As discussed above, Thompson alleges there was very close temporal proximity between
the October 2006 meeting and Thompson's reduction in hours and pay.
Second, when there is no documentation for the articulated reasons for an employment
action, this can serve as evidence of pretext. See Hurlbert v. St. Mary's Health Care Sys., Inc.,
439 F.3d 1286, 1298 (11th Cir. 2006) (cited in Paup v. Gear Products, Inc., 327 Fed. App'x 100,
16
112 (lOth Cir. 2009)). In the letter to the EEOC, Sun Valley has suggested that Thompson was
fired largely for being tardy and airing inappropriate telephone calls on the air. As Plaintiff has
pointed out, however, "Defendant has failed to produce any time cards evidencing tardiness ...
or any recorded copies of the alleged improper on air phone calls." Memo. Opp. at 41.
Third, when an "employer offers a plethora of reasons, and the plaintiff raises substantial
doubt about a number of them," this "is sufficient to create a genuine issue of fact as to pretext."
Jaramillo v. Colo. Judicial Dep '1,427 F.3d 1303, 1310 (lOth Cir. 2005). "An employer who
pursues a shotgun approach ... runs a risk of destroying its own credibility because the
factfinder's rejection of some of the defendant's proffered reasons may impede the employer's
credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered
reasons." Id. at 1310--11 (internal quotation marks omitted).
In this case, Sun Valley has offered "a bagful of legitimate reasons." Id. at 1311.
Defendant's testimony concerning Thompson's termination has changed over time and is at
times self-contradictory; management cannot even agree whether Thompson was fired or quit.
Thomas alleged Thompson was terminated for acts of misconduct, yet other evidence suggests
Thompson's replacement had already been hired before many of those alleged acts occurred.
Given these circumstances, Thompson has advanced sufficient evidence of pretext to
survive summary judgment. Because the facts, taken in the light most favorable to the plaintiff,
support a prima facie case of retaliation and an inference that Sun Valley's articulated reasons for
its decisions were pretextual, the court denies summary judgment on the Title VII retaliation
claim.
17
CONCLUSION
Plaintiffs claims of negligence under Title VII and violation of 42 U.S.C. § 1981 are not
supported by the record. Taking all facts in the light most favorable to the Plaintiff, however, he
has raised a claim of retaliation under Title VII. Therefore, for the reasons stated above,
Defendant's Second Motion for Summary Judgment4 is GRANTED IN PART and DENIED IN
PART.
~
DATED this
1{)
day of April, 2012.
BY THE COURT:
Samuel Alba
United States Magistrate Judge
4
Dkt. No. 72 (Sept. 1, 2011).
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