Evans v. Coates Electrical & Instrumentation

Filing 37

MEMORANDUM DECISION AND ORDER granting in part and denying in part Defendant's 29 Motion for Summary Judgment. Defendant's Motion for Summary Judgment is granted in part on the Punitive Damages claim and denied on the Race Discrimination and Retaliation claims. Signed by Judge Dale A. Kimball on 5/23/2018. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JAMES ALLEN EVANS,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:16-cv-01196

COATES ELECTRICAL &
INSTRUMENTATION,

District Judge Dale A. Kimball

Defendant.
This matter is before the court on Defendant Coates Electrical & Instrumentation’s
(Coates Electrical) Motion for Summary Judgment. On May 17, 2018, the court held a hearing
on the motion. At the hearing, the Plaintiff James Allen Evans (Evans) was represented by Neil
D. Skousen and Coates Electrical was represented by Ryan P. Atkinson and Jessica J. Johnston.
The court took the motion under advisement. Based on the briefing filed by the parties and the
law and facts relevant to the pending motion, the court issues the following Memorandum
Decision and Order.
BACKGROUND
This case involves a claim for racial discrimination. Evans used the staffing agency
TradeForce to find temporary employment. Tradeforce assigned Evans to work as an Apprentice
Electrician for Coates Electrical in April 2015. On April 8, 2015, Evans had an interaction with
Brandon Hansen, a project manager for the company. The altercation forms the basis of this suit.
Evans, who is black, was sent by his supervisor to retrieve a tool from the toolshed.
Hansen saw Evans in the toolshed and asked what Evans was doing. Evans told Hansen he was
looking for a tool as directed by his supervisor. Hansen responded, “Boy, you work for me.”
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Evans requested Hansen not call him “boy.” When Hansen did not stop using the term,
Evans told Hansen he was going to complain to Coates Electrical and TradeForce about race
discrimination. In response, Evans alleges that Hansen said, “Boy, take off that harness. You are
out of here. You’re fired.”1 See James Evans Depo. (Dkt. No. 32-1 at 27).
Evans says that he complained to Coates Electrical and TradeForce, but nothing was done
to address his discrimination complaint. TradeForce refused to assign Evans to any more job
openings for projects associated with Coates Electrical. Plaintiff complained to the EEOC and,
after receiving his Notice of Right to Sue letter, filed his Complaint.
Evans claims that: (1) Coates Electrical discriminated against him when Hansen called
him “boy” and terminated him from the project; (2) Coates Electrical retaliated against him when
Evans asked Hansen to not call him “boy” and then Hansen proceeded to call him “boy” again
and fired him from the project; and (3) Coates Electrical is liable for punitive damages because it
acted with malice or reckless indifference for Evans’ federally protected rights.
LEGAL STANDARD
Summary judgment is appropriate “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). When considering a motion of summary judgment, the court views “all facts [and
evidence] in the light most favorable to the party opposing summary judgment.” S.E.C. v. Smart,
678 F.3d 850, 856 (10th Cir. 2012) (quoting Grynberg v. Total S.A., 538 F.3d 1336, 1346 (10th
Cir. 2008)). The movant must prove that no genuine issue of material fact exists for trial. See
Fed. R. Civ. P. 56(a); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010).

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Although Hansen seems to admit that he called Evans “boy” when initially confronting him, there is a dispute
over whether Hansen called Evans “boy” a second time when terminating him from the job. Because this fact is in
dispute, the court must view all the facts in the light most favorable to the nonmoving party. The court is therefore
not able to accept Hansen’s depiction of the termination on summary judgment.

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Accordingly, to survive summary judgment, “the nonmoving party must come forward with
specific facts showing there is a genuine issue for trial.” Smart, 678 F.3d at 858 (quoting L & M
Enters. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000)).
DISCUSSION
Coates Electrical filed this motion for summary judgment arguing that there are no
disputes as to any material facts and that Coates Electrical is entitled to judgment as a matter of
law. Specifically, Coates Electrical moves for summary judgment on Evans’ claims for: (1)
racial discrimination; (2) retaliation; and (3) punitive damages. For the reasons that follow, the
court grants summary judgment on Evans’ punitive damages claim and denies summary
judgment on his racial discrimination and retaliation claims.
1. There Are Disputes of Material Facts On Evans’ Racial Discrimination Claim.
Evans claims he was unlawfully discriminated against based on his race. To establish a
claim for disparate treatment discrimination under Title VII of the Civil Rights Act and the UtahDiscrimination Act, a Plaintiff must establish that (1) he was a member of a protected group; (2)
he was qualified for the job; (3) he was subjected to an adverse employment action; and (4)
someone of a different class was or would have been treated differently under the same or
substantially similar circumstances. McDonald Douglas Corp. v. Green, 411 U.S. 793 (1973).
Coates Electrical concedes that Evans was a member of a protected class, was qualified
for the job, and was eventually terminated from the project. Coates Electrical instead argues that
there is no evidence to satisfy the fourth prong that the Plaintiff was treated less favorably than
other employees or was otherwise terminated under circumstances that give rise to an inference
of unlawful discrimination.

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The Supreme Court listed five non-exhaustive factors which may indicate whether the
word [boy] is evidence of racial animus, “context, inflection, tone of voice, local custom, and
historical usage.” Ash v. Tyson Foods, Inc., 126 S.Ct. 1195, 1197 (2006). On remand the 11th
Circuit applied the factors laid out by the Supreme Court and found that there was insufficient
evidence to conclude that the employer’s adverse employment action was pretextual. See Ash v.
Tyson Foods, Inc., 190 Fed. Appx. 924 (11th Cir. 2006).
In Ash, the Plaintiff claimed that he was denied a promotion because of his race. As
evidence, the Plaintiff asserted that his supervisor had called him “boy” on multiple occasions.
The Plaintiff argued that his employer calling him “boy” was evidence of racial animus that later
led to him not being promoted. In that case the person who was promoted instead of him had
superior qualifications, superior recommendations, and had more experience. The court
determined that “the comments were ambiguous stray remarks not uttered in the context of the
decisions at issue and are not sufficient circumstantial evidence of bias to provide a reasonable
basis for a finding of racial discrimination in the denial of the promotion.” Ash, 190 at 926. The
court held that the Plaintiff provided insufficient evidence of bias to prove that the employer’s
non-discriminatory reason for not promoting the Plaintiff was pre-textual because the person
who was promoted had superior qualifications. Id.
Evans’ case is easily distinguishable from Ash. Here, Evans asserts that while he was
looking for a tool as instructed by his supervisor, Hansen responded, “Boy, you work for me.”
See James Evans Depo. (Dkt. No. 32-1 at 27). After telling Hansen that the term “boy” was
derogatory, Hansen allegedly responded “Boy, take off that harness. You are out of here. You’re
fired.” Id. Evans stated in his deposition that Hansen “took 2-3 aggressive steps towards Evans to
confront him. That Hansen’s voice was in a sarcastic tone and in overwhelming power and

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authority mode/tone as he confronted Evans. That Hansen’s face was consumed with extreme
anger [when] confronting Evans. That Hansen had a smirky expression on his face appearing to
be extremely annoyed as he confronted Evans.” Id. at 78-80.
In applying the five Ash factors as laid out by the Supreme Court, the court finds that
there is sufficient evidence to allow a reasonable jury to find racial animus. The non-exhaustive
factors the Supreme Court cited are “context, inflection, tone of voice, local custom, and
historical usage.” Evans described Hansen’s context, inflection, and tone of voice as aggressive,
angry, and annoyed when calling him “boy”. Id.
As to local custom and historical usage, neither party has cited a case where a court has
applied these factors. The Defendant asserted at oral argument that the term “boy” is not racist in
Utah because Utah is a predominately Caucasian state and there is not a long history in the state
of the term being derogatory. The Defendant argued there might be a valid discrimination case in
Alabama where it is widely known that “boy” is a racist term, but the local custom and historical
usage in Utah requires a different finding. Although the Supreme Court did not elaborate on how
to analyze local custom and historical usage in determining whether the term “boy” was used
with racial animus, the fact that Evans allegedly informed Hansen that the word “boy” was racist
should have put Hansen on notice. There is evidence of racial animus because Hansen allegedly
became angry when Evans complained of the discriminatory conduct and after the complaint
Hansen called Evans “boy” a second time and terminated him. Accordingly, Evans has
established a prima facie case for discrimination.
Pretext
If the court determines that the Plaintiff has established a prima facie case for
discrimination the burden of persuasion shifts to the employer to articulate a legitimate, non-

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discriminatory reason for its treatment of the plaintiff. McDonnell Douglas, 411 at 793. The
Defendant need not prove that the non-discriminatory reason was correct, only that there was a
legitimate reason that was not discriminatory against a protected class. Once the Defendant
produces evidence of a legitimate non-discriminatory reason for the adverse employment
decision the burden shifts back to the Plaintiff to prove that the reason was pretextual.
Coates Electrical argues that it did not discriminate against Evans and that the reason he
was fired was because Evans was insubordinate to Hansen and therefore should not have talked
back to someone senior to him. Coates Electrical argues that it employs many workers and that
its hierarchical management is necessary to run projects smoothly. Coates Electrical therefore
argues that insubordination was the reason Evans was fired.
Evans responds that Coates Electrical’s non-discriminatory reason of insubordination was
pre-textual and that he was actually fired because of racial discrimination. As evidence of pretext Evans argues that Hansen called him “boy” in an aggressive and derogatory manner, and
that after he told Hansen to stop calling him boy Hansen proceeded to terminate him from the
project. See James Evans Depo. (Dkt. No. 32-1 at 27).
The court finds that this case is easily distinguishable from Ash where there was a valid
nondiscriminatory reason for the adverse employment action. In Ash there was a length of time
that passed from the time the Plaintiff was called “boy” and the adverse employment action that
made it difficult to find a causal connection. Also, in Ash the Defendant demonstrated that it
promoted someone with superior qualifications to the position. Here, the term “boy” was used in
the same conversation as Evans’ termination. Additionally, Evans contends that he asked Hansen
not to call him “boy” and that Hansen proceeded to call him “boy” again and terminate him. Id.
The close proximity in the time from the alleged discriminatory conduct and the adverse

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employment action, coupled with the Ash factors that suggest evidence of racial animus are
evidence that Coates Electrical’s proffered non-discriminatory reason of insubordination was
pre-textual. The court finds that Evans has presented sufficient evidence that a reasonable jury
could conclude that Coates Electrical discriminated against Evans on the basis of his race.
Accordingly, summary judgment is denied on Evans’ race discrimination claim.
2. There is Sufficient Evidence for a Jury to Conclude that Hansen Retaliated Against
Evans.
Evans asserts that Hansen retaliated against him by terminating him from the project after
he asked Hansen not to call him “boy” because referring to a grown black man by that term is
racists. See James Evans Depo. (Dkt. No. 32-1 at 27). Evans said “I’m going to report this… to
TradeForce and Coates.” Id. at 28. Hansen responded “Boy, take off that harness. You’re out of
here.” Id.
To establish a prima facie claim of retaliation, Plaintiff must show: (1) he engaged in a
protected activity; (2) the employer knew of the activity; (3) he was subjected to an adverse
employment action; and (4) there was a causal connection between the protected activity and the
adverse employment action. Miller v. Auto Club, 420 F.3d 1098, 1119-20 (10th Cir. 2005).
Evans has established a prima facie case from which a jury could find retaliation. Evans
engaged in protected activity when he told Hansen not to call him “boy”, a name with a long
history of racism. If Hansen did not know the term “boy” was racist when he first used the word
then he should have at least have been put on notice after Evans informed him that the word was
racist. Evans was subjected to an adverse employment action when he was fired after
complaining to Hansen about his discriminatory language. Finally, there is a causal connection
between the protected activity of complaining about racism and Hansen terminating Evans. A
reasonable jury can conclude from the facts alleged that Hansen retaliated against Evans for
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complaining about being called “boy”.2 Accordingly, summary judgment is denied on Evans’
retaliation claim.
3. There is Insufficient Evidence to Establish Punitive Damages.
A Title VII plaintiff may receive an award of punitive damages if his or her employer
“engaged in a discriminatory practice or discriminatory practices with malice or reckless
indifference to [Plaintiff’s] federally protected rights.” Medlock v. Ortho Biotech, 164 F.3d 545,
551 (10th Cir. 1999). Here, although Hansen’s actions may have been discriminatory there is
insufficient evidence to establish malice or reckless indifference to Plaintiff’s federally protected
rights. Accordingly, summary judgment is granted in favor of Defendant on the punitive
damages claim and the claim is dismissed.
CONCLUSION
Based on the above reasoning, Defendant’s Motion for Summary Judgment is GRANTED in part
on the Punitive Damages claim and DENIED on the Race Discrimination and Retaliation claims.
Dated this 23rd day of May, 2018.
BY THE COURT:

____________________________________
DALE A. KIMBALL,
United States District Judge

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There is some confusion around what Evans is claiming as retaliation. Evans asserts in his complaint, opposition,
and at the hearing that his retaliation claim is based on Hansen firing him after complaining about being called
“boy”. The Defendant seeks summary judgment on the retaliation claim arguing that it did not retaliate against
Evans for failing to employ him on additional projects because TradeForce, not Coates Electrical had decided that
he would no longer be assigned to new Coates Electrical projects. The court agrees that because TradeForce was
not deposed there are no facts to establish that Coates Electrical affirmatively told TradeForce that he could no
longer work on Coates Electrical projects. However, Evans claim for retaliation is based on Hansen firing him from
Coates Electrical after he complained about racial discrimination, not based on the fact that Coates Electrical may
have directed TradeForce not to assign him to new projects.

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