Elsatel v. Maverick Country Stores

Filing 18

MEMORANDUM DECISION granting 10 Motion for Summary Judgment. See image for further details. Signed by Judge David Sam on 2/3/12. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
)
ANA ELSATEL,

)
Plaintiff,

Case No.2:10-CV-989-DS

)
MEMORANDUM DECISION

vs.

)
)

MAVERIK, INC., d/b/a Maverik
Country Store,

)

Defendant.

)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
This matter is before the court on Defendant Maverik, Inc.’s
motion for summary judgment.
submitted

by

the

parties

The court has considered the briefs
and

pursuant

to

DUCivR

7-1(f)will

determine the motion based on the written memoranda without the
assistance of oral argument.
Background
Plaintiff Anan Elsatel (“Mr. Elsatel”)is of Jordanian
descent.

He worked for defendant Maverik, Inc. (“Maverik”) for

10 years total, during which time he held various store director
positions and for approximately one year worked in loss
prevention. Plaintiff was an at-will employee. Never at any time
in the ten years he was employed by Maverik did plaintiff
complain of unfair treatment because of his national origin. In
December 2009, Mr. Elsatel’s area supervisor became aware of and

observed several policy violations committed by Mr. Elsatel.
Plaintiff was terminated from Maverik’s employment on December
23, 2009.

Plaintiff first asserted claims of discrimination

against Maverik on April 16, 2010 in an EEOC filing. Mr. Elsatel
now asserts claims of discriminatory transfer and discriminatory
discharge.
Fed. R. Civ. P. 56 Standards for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is proper only
when the pleadings, affidavits, depositions or admissions
establish there is no genuine issue regarding any material fact
and the moving party is entitled to judgment as a matter of law.
The burden of establishing the nonexistence of a genuine issue of
material fact is on the moving party.1

E.g., Scott v. Harris,

127 S. Ct. 1769 (2007); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Adler v. Wal-Mart Stores, Inc., 144F. 3d

664, 670, (10th

Cir. 1998). This burden has two distinct components:

an initial

burden of production on the moving party, which burden when
satisfied shifts to the nonmoving party, and an ultimate burden
of persuasion, which always remains on the moving party.

See 10A

C. Wright, A. Miller & M. Kane, Federal Practice and Procedure §
2727 (3d ed. 2008).

1

Whether a fact is material is determined by looking to
relevant substantive law. ; Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Adler, 144F. 3d at 670.
2

When summary judgment is sought, the movant bears the
initial responsibility of informing the court of the basis for
his motion and identifying those portions of the record and
affidavits, if any, he believes demonstrate the absence of a
genuine issue of material fact.
Celotex, 477 U.S. at 323.

Scott, 127 S. Ct. At 1776;

In a case where a party moves for

summary judgment on an issue on which he would not bear the
burden of persuasion at trial, his initial burden of production
may be satisfied by showing the court there is an absence of
evidence in the record to support the nonmovant's case.2
144F. 3d at 670-71; Celotex, 477 U.S. at 323.

Adler,

"[T]here can be no

2

In his dissent in Celotex, Justice Brennan discussed the
mechanics for discharging the initial burden of production when the
moving party seeks summary judgment on the ground the nonmoving
party--who will bear the burden of persuasion at trial--has no
evidence:
Plainly, a conclusory assertion that the nonmoving party
has no evidence is insufficient.
Such a 'burden' of
production is no burden at all and would simply permit
summary judgment procedure to be converted into a tool
for harassment. Rather, as the Court confirms, a party
who moves for summary judgment on the ground that the
nonmoving party has no evidence must affirmatively show
the absence of evidence in the record. This may require
the moving party to depose the nonmoving party's
witnesses or to establish the inadequacy of documentary
evidence.
If there is literally no evidence in the
record, the moving party may demonstrate this by
reviewing for the court the admissions, interrogatories
and other exchanges between the parties that are in the
record.
Either way, however, the moving party must
affirmatively demonstrate that there is no evidence in
the record to support a judgment for the nonmoving party.
477 U.S. at 323 (citations (omitted).
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issue as to any material fact . . . [when] a complete failure of
proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."

Id.

Once the moving party has met this initial burden of
production, the burden shifts to the nonmoving party to designate
"specific facts showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Adler, 144F. 3d
at 671.
If the defendant in a run-of-the-mill civil case moves
for summary judgment . . . based on the lack of proof
of a material fact, the judge must ask himself not
whether he thinks the evidence unmistakenly favors one
side or the other, but whether a fair-minded jury could
return a verdict for the plaintiff on the evidence
presented.

The mere existence of a scintilla of

evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.

The judge's

inquiry, therefore, unavoidably asks whether reasonable
jurors could find by a preponderance of the evidence
that the plaintiff is entitled to a verdict . . . .
Liberty Lobby, 477 U.S. at 252.

The central inquiry is "whether

the evidence presents a sufficient disagreement to require

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submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law."

Id.

If the nonmoving party

cannot muster sufficient evidence to make out a triable issue of
fact on his claim, a trial would be useless and the moving party
is entitled to summary judgment as a matter of law.

Id., 477

U.S. at 242.
Analysis
Mr. Elsatel alleges discrimination by Maverik under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e17 (“Title VII”), on the basis of national origin. There is no
direct evidence of discrimination in this case so the plaintiff
has the burden of establishing his discrimination claim under the
standards set forth in McDonnell Douglas Corp. V. Green, 411 U.S.
792 (1973). McDonnell Douglas employs a burden shifting analysis
that requires the plaintiff to establish a prima facie case of
discrimination.
(10th Cir. 2010).

Johnson v. Weld Cnty., 594 F.3d 1202, 1210-11
The burden then shifts to the defendant to

“articulate a legitimate, non-discriminatory reason for the
adverse employment action.” Id. at 1211.

Next, the burden

“shifts back to the plaintiff, who must prove by a preponderance
of the evidence that the employer’s reasons are a pretext for
unlawful discrimination.” Id.
Even construing the complaint and Mr. Elsatel’s opposition
to the motion for summary judgment liberally and in a light most

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favorable to the plaintiff given his pro se status, plaintiff has
failed to carry his burden.

He has not established a prima facie

case of discriminatory transfer or termination, nor has he shown
that Maverik’s asserted reasons for the transfer or his discharge
were illegitimate or were a pretext.

His opposition did not

address the McDonnell Douglas standards nor make any legal
arguments in opposition to those advanced by Maverik.
The court has reviewed the undisputed material facts and
finds as a matter of law that plaintiff cannot carry his burden
and defendant is entitled to judgment as a matter of law.
Accordingly, for the reasons thoroughly briefed by defendant
Maverik, which arguments are incorporated herein, the motion for
summary judgment is granted. Plaintiff’s claims are dismissed in
their entirety with prejudice.
SO ORDERED.

DATED this 3rd day of February, 2012.
BY THE COURT:

David Sam
Senior Judge
United States District Court

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