Hoffman v. Verizon Wireless et al
Filing
50
MEMORANDUM DECISION granting 35 Motion for Summary Judgment; granting 41 Motion for Leave to File; denying 44 Motion for Summary Judgment; denying as moot 47 Motion to Amend/Correct. Signed by Judge Ted Stewart on 08/13/2012. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BRENT DAVID HOFFMAN
Plaintiff,
MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS
vs.
VERIZON WIRELESS, BRADLEY
SUMMERS, JESSICA BARRON,
ANTHONY BOWMAN, AL RINGGOLD,
ED FLOWER, BRIAN CERVINSKI, JULIE
EVES, JEANEEN DAVIS AND RYAN
WARNER,
Case No. 2:10-CV-1170 TS
Defendants.
This matter is before the Court on Defendants’ Motion for Summary Judgment, 1
Plaintiff’s Motion for Summary Judgment, 2 Defendants’ Motion for Leave to File Response, 3
and the parties’ Joint Stipulation and Motion to Amend Scheduling Order. 4 For the reasons set
forth more fully below, the Court will grant Defendants’ Motions and deny Plaintiff’s Motion.
As a result, the Joint Stipulation and Motion to Amend is moot.
1
Docket No. 35.
2
Docket No. 44.
3
Docket No. 41.
4
Docket No. 47.
1
I. BACKGROUND
Plaintiff alleges that Defendants engaged in employment discrimination, violating the
Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Specifically,
Plaintiff alleges that Defendants’ discriminated against him due to his disability, retaliated
against him, and slandered him.
Plaintiff also argues that his claims are not brought solely under the Americans with
Disabilities Act, but that he is bringing separate causes of action for “discrimination, retaliation,
harassment, intimidation, constructive discharge, disparate treatment, and [violations of] the
EEOC.” 5 It is unclear under which statutes or common-law causes of action such claims would
arise.
II. DEFENDANTS’ MOTION FOR LEAVE TO FILE RESPONSE
Plaintiff filed an (unauthorized) surreply memorandum in opposition to Defendants’
Motion for Summary Judgment. Defendants’ have filed a Motion for Leave to File Response to
Plaintiff’s surreply. As Plaintiff is proceeding pro se, the Court finds that his surreply
memorandum is helpful in a determination of the proceedings and will consider it. However, as
Plaintiff’s surreply raises a number of new issues, the Court grants Defendants leave to respond
to Plaintiff’s surreply and has considered it as well.
III. CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff and Defendants have filed cross-motions for summary judgment on all of
Plaintiff’s claims.
5
Docket No. 40, at 6.
2
A.
STANDARD OF REVIEW
Summary judgment is proper if the moving party can demonstrate that there is no genuine
issue of material fact and it is entitled to judgment as a matter of law. 6 The party seeking
summary judgment bears the initial burden of demonstrating an absence of a genuine issue of
material fact. 7 “Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth
specific facts showing that there is a genuine issue for trial.” 8 An issue is a “genuine issue for
trial” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” 9
The Court must construe a pro se party’s complaint liberally. 10 However, “[t]his liberal
treatment is not without limits, and this court has repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants.” 11 “As a result, a pro se plaintiff must
strictly comply with the requirements of Rule 56 in order to properly contest a motion for
summary judgment.” 12 Rule 56 states that “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be admissible in
6
See Fed. R. Civ. P. 56(a).
7
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
8
Sally Beauty Co., Inc., v. Beautyco, Inc., 304 F.3d 964, 971 (10th Cir. 2002).
9
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
10
Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quotation omitted).
11
Id. (quotation omitted).
12
Franke v. ARUP Labs., Inc., 390 F. App’x 822, 826 (10th Cir. 2010).
3
evidence, and show that the affiant or declarant is competent to testify on the matters stated.” 13
“Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” 14
B.
ANALYSIS
1.
TITLE VII OF THE CIVIL RIGHTS ACT
Plaintiff states in his complaint that “[t]his action is brought pursuant to Title VII of the
Civil Rights Act of 1964 as amended, for employment discrimination.” 15 The statute states:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national origin. 16
Plaintiff has not alleged or presented any evidence supporting a claim for discrimination due to
his race, color, religion, sex, or national origin. Therefore, the Court will grant Defendants’
Motion for Summary Judgment and deny Plaintiff’s Motion for Summary Judgment on this
issue.
2.
AMERICANS WITH DISABILITIES ACT
[T]o establish a prima facie case of disability discrimination under the ADA, a
plaintiff must demonstrate that he “(1) is a disabled person as defined by the
ADA; (2) is qualified, with or without reasonable accommodation, to perform the
essential functions of the job held or desired; and (3) suffered discrimination by
13
Fed. R. Civ. P. 56(c)(4).
14
Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty., 661 F.3d 477, 481 (10th Cir.
2011) (quotation omitted).
15
Docket No. 3, at 1.
16
42 U.S.C. § 2000e-2(a).
4
an employer or prospective employer because of that disability.” In order to
demonstrate “discrimination,” a plaintiff generally must show that he has suffered
an “adverse employment action because of the disability.” 17
If a plaintiff does not offer direct evidence of discrimination, the Court is to apply the
burden shifting analysis set forth by the U.S. Supreme Court in McDonnell Douglas Corp. v.
Green. 18 “Under this framework, a plaintiff must first make out a prima facie case of
discrimination,” as set forth above. 19 “After the plaintiff has made the requisite showing, the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions.
If the defendant proffers such a reason, the burden then shifts back to the plaintiff to show that
the defendant’s stated reasons are merely ‘pretextual.’” 20 “[A] plaintiff can establish pretext by
showing the defendant’s proffered non-discriminatory explanations for its actions are ‘so
incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude [they
are] unworthy of belief.’” 21
Plaintiff argues that Defendants discriminated against him due to his disability by: 1)
terminating his employment; 2) failing to accommodate his reasonable disability requests; 3)
failing to promote Plaintiff when he was the most qualified candidate 4) creating a hostile work
environment; 5) engaging in “breach of confidentiality;” and 6) engaging in “constructive
17
E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011) (quoting
Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1086 (10th Cir. 2008); Mathews v.
Denver Post, 263 F.3d 1164, 1167 (10th Cir. 2001)).
18
411 U.S. 792 (1973).
19
C.R. England, Inc., 644 F.3d at 1038 (citing McDonnell Douglas Corp, 411 U.S. at
20
Id. (citing McDonnell Douglas Corp, 411 U.S. at 802-05).
802).
21
Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010) (alteration in
original) (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1197 (10th Cir. 2008)).
5
discharge.” 22 Plaintiff has not met his initial burden on any of these points by citing to evidence
to establish a prima facie case of disability discrimination. 23
As Plaintiff is proceeding pro se, the Court could allow Plaintiff the opportunity to file an
affidavit setting forth Plaintiff’s arguments in an admissible form. However, such amendment
would be futile if Plaintiff’s arguments, even if construed as admissible evidence, do not meet
either his initial burden or his burden to show that Defendants’ articulated reasons are pretextual.
Therefore, where possible, the Court will continue this analysis as if Plaintiff’s allegations were
admissible and met his initial burden.
a.
Termination
Plaintiff first argues that Defendants discriminated against him due to his disability by
terminating his employment. Defendants have presented evidence that Plaintiff was terminated
because he left his work station while logged in—causing customer calls to go unanswered—and
because he ignored a customer’s repeated requests to speak with a manager and then
disconnected the call. 24 Defendants have also presented evidence that this violates company
policy. 25
As Defendants have articulated a legitimate, nondiscriminatory reason for terminating
Plaintiff, the burden now shifts to Plaintiff to show that Defendants’ stated reasons are
pretextual. Plaintiff argues that he did not receive a final written warning for these actions, citing
22
Docket No. 3, at 3.
23
Plaintiff argues that he is disabled, that he is qualified to perform the essential
functions of his job, and that he has suffered adverse employment action because of his
disability. However, Plaintiff’s argument is inadmissible as evidence, as it has not been sworn
under penalty of perjury in properly filed affidavit.
24
Docket No. 36 Ex. 11, at 2-4; see also Docket No. 36 Ex. 16, at 1-2.
25
Docket No. 36 Ex. 4, at 10, 25.
6
to Involuntary Separation Forms for other employees who did receive final written warnings
before they were ultimately terminated. However, Plaintiff does not submit evidence showing
that it is Defendants’ policy or custom to issue final written warnings to all employees prior to
termination. Furthermore, Defendant Verizon Wireless has cited to a number of other
Involuntary Separation Forms where employees did not receive final written warnings before
termination. Plaintiff has also failed to submit any additional evidence in support of a finding
that Defendants’ stated reasons for termination were pretextual. Even if Plaintiff’s allegations
were contained in an affidavit that met the requirements of Rule 56, they would be deficient as
“affidavits must be based upon personal knowledge and set forth facts that would be admissible
in evidence; conclusory and self-serving affidavits are not sufficient.” 26 As Plaintiff’s arguments
are conclusory, self-serving, and unsupported by the evidence before the Court, the Court finds
that Plaintiff has not met his burden to show that Defendants’ stated reasons for termination are
pretextual.
b.
Failure to Promote Plaintiff
Plaintiff was interviewed for a Customer Service Supervisor position and argues that he
was not promoted due to discrimination against him because of his disability. Defendants have
presented evidence that Plaintiff was not promoted because, when asked questions from the
interview guide used for all candidates, Plaintiff “did not provide enough detail or specific
answers in response to [the] questions.” 27 Plaintiff was given a score of two out of five in each
of the seven criteria evaluated during the interview, and “Verizon Wireless disqualifies from
26
Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991).
27
Docket No. 36 Ex. 6, at 2.
7
further interviews any candidate with more than one rating of 2.” 28 Defendants have also cited
to copies of the interview guide used by the individuals who interviewed Plaintiff, which contain
the reasoning used in calculating the scores.
Plaintiff argues that he was the most qualified applicant and therefore the only reason he
was not promoted was due to his disability. However, this is merely a conclusory statement that
is based on speculation rather than the evidence before the Court. Therefore, the Court finds that
Plaintiff has not met his burden on this point.
c.
Hostile Work Environment
Plaintiff claims that he was required to take too many escalated calls and should have
been given extra time for a break between those calls. Defendants have submitted evidence that
Plaintiff was assigned calls in the same ratio and volume as his coworkers. Plaintiff has not
submitted evidence to the contrary. Plaintiff has also failed to point to any comments made to
him regarding his disability or that otherwise support his claims that Defendants created a hostile
work environment. Therefore, the Court finds that Plaintiff has not met his burden on this point.
d.
Constructive Discharge
Plaintiff argues that the actions taken by Defendants amounted to constructive discharge.
As stated previously, Plaintiff was actually terminated and has not met his burden to show that
Defendants’ reasons for termination were pretextual. Furthermore, Plaintiff has not presented
evidence of specific actions, statements, or work conditions that constituted adverse employment
action. Therefore, the Court finds that Plaintiff has not met his burden on this point.
28
Id. at 3 (internal quotation marks omitted).
8
e.
Remaining Claims
Even assuming that Plaintiff’s arguments would be admissible, Plaintiff has not identified
a specific adverse employment action that he suffered as a result of Defendants’ alleged failure
to accommodate his disability or the alleged breach of confidentiality. He has also not submitted
any evidence supporting these claims. Therefore, the burden did not shift to Defendants to
articulate a legitimate, nondiscriminatory reason for their actions or show that the
accommodation would cause undue hardship.
3.
RETALIATION
To establish a prima facie case of retaliation under the ADA, Plaintiff must demonstrate
“(1) 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.” 29 Plaintiff has not
stated any specific retaliation he allegedly suffered as a result of his opposition to discrimination.
Furthermore, as stated above, Plaintiff has failed to meet his burden with respect to the adverse
actions that he alleges were discriminatory.
4.
FAMILY MEDICAL LEAVE ACT
Defendant has cited to evidence showing that Plaintiff’s request for time off under the
Family Medical Leave Act (“FMLA”) was ultimately approved by Verizon Wireless, which
Plaintiff has not disputed. Furthermore, Plaintiff has not cited to evidence of any harm suffered
by Plaintiff for Defendants’ failure to initially approve his request for leave under the FMLA.
Therefore, the Court will grant Defendants’ Motion for Summary Judgment on this point.
29
C.R. England, Inc., 644 F.3d at 1051 (quoting Proctor v. United Parcel Serv., 502 F.3d
1200, 1208 (10th Cir. 2007)).
9
5.
SLANDER
Plaintiff claims that Verizon Wireless sought to slander his professional reputation.
During his deposition, Plaintiff testified that two individuals he interviewed with regarding a
promotion reported to a third individual that Plaintiff had stated during the interview that he
could not talk about a specific issue because it was proprietary. 30 Plaintiff testified in the same
deposition that, during the interview, he had stated that he could not talk about the issue because
it was propriety. 31
In his Opposition to Defendants’ Motion for Summary Judgment, Plaintiff states that he
“asks the Court to dismiss without prejudice” his claim for slander. 32 “Plaintiff agrees with the
Defendants that there is a more appropriate time and place to litigate the Plaintiff’s claims
against the Defendants for [s]lander.” 33
The Court finds that it would be improper to dismiss without prejudice Plaintiff’s claim
for slander at this point in the proceedings without a stipulation by Defendants. Further,
Plaintiff’s defamation claim is unsupported. Therefore, the Court will not allow dismissal under
Fed. R. Civ. P. 41(a)(2). A claim for defamation requires that the alleged statements be false. 34
The only evidence relating to slander that Plaintiff has presented relates to a statement that he
also states was true. Therefore, the Court will grant Defendants’ Motion and deny Plaintiff’s
Motion on this point.
30
Docket No. 36 Ex. 1, at 237-38.
31
Id. at 238-239.
32
Docket No. 37, at 20.
33
Id.
34
Jacob v. Bezzant, 212 F.3d 353, 544 (Utah 2009).
10
IV. MOTION TO AMEND SCHEDULING ORDER
The parties have filed a Joint Stipulation and Motion to Amend Scheduling Order,
seeking to move the trial date. As the Court will grant Defendants’ Motion for Summary
Judgment, trial is no longer necessary and the parties’ Motion is moot.
V. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendants’ Motion for Leave to File Response (Docket No. 42) is
GRANTED. It is further
ORDERED that Defendants’ Motion for Summary Judgment (Docket No. 35) is
GRANTED. It is further
ORDERED that Plaintiff’s Motion for Summary Judgment (Docket No. 44) is DENIED.
It is further
ORDERED that the parties’ Joint Stipulation and Motion to Amend Scheduling Order
(Docket No. 47) is DENIED AS MOOT.
The Clerk of the Court is directed to enter judgment against Plaintiff and in favor of
Defendants on all of Plaintiff’s claims and close this case forthwith.
DATED August 13, 2012.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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