Moton v. Park Place Hospitality LLC

Filing 45

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Park Place's motion for summary judgment (Docket # 35 ) is GRANTED. IT IS FURTHER ORDERED that the clerk of court will enter judgment accordingly. (cc: all counsel, via US Mail to Plaintiff ) (ds)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NED LEE MOTON,
Plaintiff,
v.

Case No. 17-CV-178

PARK PLACE HOSPITALITY LLC,
Defendant.
DECISION AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Ned Lee Moton brought this pro se civil rights complaint against his former
employer, Park Place Hospitality LLC (“Park Place”), alleging that Park Place
discriminated against him on the basis of race and age. (Docket # 5.) Park Place filed a
motion for summary judgment (Docket # 35), to which Moton responded (Docket # 43).
For the reasons below, Park Place’s motion will be granted.
BACKGROUND FACTS
Under Civil Local Rule 56(b)(2), Moton was required to file (i) a concise response to
Park Place’s statement of facts followed by a response to each paragraph including, in the
case of any disagreement, specific references to the affidavits, declarations, parts of the
record, and other supporting materials relied upon, and (ii) a statement, consisting of short
numbered paragraphs, of any additional facts that require the denial of summary judgment,
including references to supporting materials. Park Place included these instructions in its
motion for summary judgment (Docket # 35 at 5) as required by Civ. L.R. 56(a)(1)(B). The
motion also included the text of Federal Rule of Civil Procedure 56(e), notifying Moton that

if he failed to properly address another party’s assertion of fact, the court would be entitled
to consider the fact undisputed for purposes of the motion and grant summary judgment if
the motion and supporting materials — including the facts considered undisputed — show
that the movant is entitled to it. (Docket # 35 at 4.) Despite these instructions, Moton did
not properly respond to Park Place’s statement of proposed facts. Thus, I consider Park
Place’s proposed findings of fact undisputed for purposes of this motion.
Park Place owns and operates the Hilton Garden Inn Park Place (the “Hotel”)
located in Milwaukee, Wisconsin. (Def.’s Proposed Findings of Fact (“DPFOF”) ¶ 1.) The
Hotel maintains 184 guest rooms, as well as a restaurant and bar and roughly 5,000 square
feet of event space. (Id. ¶ 2.) In June 2006, Moton began his employment at the Hotel as a
van driver. (Id. ¶ 3.) This position was part-time and Moton initially worked three and a half
hours per day, which was reduced to two and half hours per day for the majority of his
employment. (Id. ¶ 4.) At the time of his hire, Moton was approximately sixty years old. (Id.
¶ 5.) Moton’s sole responsibility was to operate the company-owned vehicle to transport
hotel guests. (Id. ¶ 6.) At all times relevant to Moton’s employment, Park Place had a “Use
and Care of Hotel Vehicles” policy which provided that “[a]nyone who operates a
commercially licensed vehicle (van) owned or controlled by the Hotel must possess a valid
driver’s license and have a clean driving record.” (Id. ¶ 7.) Moton was aware of this policy;
he read, signed, and reviewed the policy on December 20, 2012. (Id. ¶ 8.)
On April 15, 2013, the City of Milwaukee Municipal Court found Moton guilty of
Operating While Intoxicated (“OWI”). (Id. ¶ 9.) As a result of the OWI conviction, Moton’s
license and driving privileges were initially revoked on April 15, 2013. (Id. ¶ 10.) A month
later, his revocation was amended to a suspension. (Id. ¶ 11.) Moton never disclosed that his
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license was revoked or suspended to Park Place despite the requirement that he have a valid
driver’s license as a condition of his position. (Id. ¶ 12.) Rather, Moton continued to drive
the Hotel van on a revoked and/or suspended license. (Id. ¶ 13.) Moton was aware that this
was in violation of the “Use and Care of Hotel Vehicles” policy. (Id. ¶ 14.)
As part of an annual renewal process for its insurance coverage, Park Place’s
insurance provider conducted an audit of employee driving records for employees who may
have operated the hotel-owned van. (Id. ¶ 15.) Pursuant to the insurance company’s
guidelines, Park Place would not meet the underwriting requirements if any of its drivers
had one or more “major violations” within the past five years, including but not limited to
driving while intoxicated or impaired under the influence of drugs (“DWI”). (Id. ¶ 16.) Any
employee who committed a major violation, or otherwise failed to comply with the
insurance guidelines, would be excluded from coverage. (Id. ¶ 17.) Park Place submitted a
list of drivers to the insurance company, among whom were Moton, as the official van
driver, and other hotel employees who may have assisted in driving the van as needed. (Id. ¶
18.) Following its audit, the insurance carrier notified Park Place’s Chief Financial Officer,
Nanci Bahlmann, that two employees—Ned Moton and Nicholas Toecker—did not meet
the underwriting criteria and would be excluded from coverage. (Id. ¶ 19.) Toecker, a 25year old white male, was employed by Park Place as a front desk receptionist. (Id. ¶ 20.)
Toecker, along with other hotel employees and staff, occasionally drove the van when
Moton was not working. (Id. ¶ 21.) As a result of not meeting the underwriting criteria,
Toecker was prohibited from assisting with or otherwise operating the Hotel van. (Id. ¶ 22.)
Moton admits that driving the van was not Toecker’s principal job duty and that Moton was
the only van driver for the Hotel. (Id. ¶ 23.)
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Following receipt of the insurance carrier’s audit, Hotel management met with
Moton on October 11, 2013 to discuss the information received from the carrier. (Id. ¶ 24.)
Management advised Moton that its insurer identified him as having a major driving
violation and that the carrier would not insure Moton as a driver because of his OWI and
suspension of his license. (Id. ¶ 25.) Moton acknowledged in this meeting that he lost his
license due to an OWI. (Id. ¶ 26.) Management explained to Moton that he could not
operate the hotel van because he no longer had a valid driver’s license and he was
uninsurable. (Id. ¶ 27.) Moton apologized, turned in his timecard, said goodbye, and left the
property. (Id. ¶ 29.)
It is the Hotel’s position that Moton was advised that management was looking for
help in other departments, such as banquet, housekeeping and the dishwashing area, but
Moton never responded to this offer. (DPFOF ¶ 28.) The Hotel’s chief engineer, David
Christensen, stated that he was in the meeting of October 11, 2013 and that Moton was
advised of these other potential positions. (Decl. of David Christensen ¶¶ 2–3, 7, Docket #
39.) Although Moton disputes that alternative positions were offered to him (Resp. at 1–2,
Docket # 43.), he does not point to any admissible evidence to support this assertion.
Moton’s employment was officially terminated on October 17, 2013 following Park
Place’s receipt of documentation from the Department of Workforce Development
(“DWD”) Unemployment Division on behalf of Moton concerning unemployment
compensation. (DPFOF ¶ 31.) Moton’s employment as the van driver was terminated
because he did not have a clean driving record and the insurance carrier would not cover
him as a driver. (Id. ¶ 32.)

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Moton never complained during his employment at the Hotel that he felt that he was
being discriminated against on the basis of his age or race. (Id. ¶ 33.) In support of his claims
of race and age discrimination, the sole fact Moton relies on is that Toecker—a much
younger white male—was not terminated. (Id. ¶¶ 34–35.) Moton admits he has no evidence
that Park Place considered his race or age when it discharged him. (Id. ¶ 36.) Moton admits
that he has no facts to support his race and age discrimination claims other than that he is
an African American male in his 60s and Toecker is a white male in his 20s. (Id. ¶ 37.)
In July 2014, Moton filed an administrative charge with the DWD, asserting a claim
of age and race discrimination in connection with his termination from the Hotel. (Id. ¶ 38.)
On October 20, 2014, the DWD issued a determination against Moton, dismissing his
administrative charge and finding no probable cause to support his claims. (Id. ¶ 39.) Moton
appealed this Initial Determination and the matter proceeding to hearing in November 2015
before an Administrative Law Judge (“ALJ”), at which the parties presented witnesses and
other evidence. (Id. ¶ 40.) On November 17, 2015, the ALJ issued a Decision on Probable
Cause finding that Moton failed to meet his burden and establish probable cause that Park
Place considered Moton’s race or age when it terminated his employment. (Id. ¶ 41.) Moton
appealed this dismissal on December 7, 2015. (Id. ¶ 42.) This appeal was also unsuccessful
and Moton filed a Complaint for Administrative Review in the Circuit Court of Milwaukee
County on June 13, 2016. (Id. ¶ 43.) Moton’s original administrative filing had been crossfiled with the Equal Employment Opportunity Commission (“EEOC”), which on
November 7, 2016 issued a Notice of Dismissal and Right to Sue, adopting the findings of
the DWD. (Id. ¶ 44.) On February 7, 2017, Moton filed this case. (Id. ¶ 45.)

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SUMMARY JUDGMENT STANDARD
The court shall grant summary judgment 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477
U.S. at 248. The mere existence of some factual dispute does not defeat a summary
judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In evaluating a motion for summary judgment, the court must draw all inferences in
a light most favorable to the nonmovant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the
ultimate burden of proof at trial, that party retains its burden of producing evidence which
would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon
must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a
rational trier of fact could not find for the non-moving party.’” Durkin v. Equifax Check
Services, Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330
F.3d 991, 994 (7th Cir. 2003)).

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ANALYSIS
Park Place argues that it is entitled to summary judgment because, considering the
evidence as a whole, no rational juror could conclude that Moton’s race or age was the
cause of his termination. (Docket # 36 at 5–11 (citing Ortiz v. Werner Enter., Inc., 834 F.3d
760 (7th Cir. 2016)).) Moton responds that Park Place’s assertion that it offered him
alternative positions when it discharged him is untrue. (Resp. at 1, Docket # 43.) Moton
also argues that the fact that Toecker was allowed to keep his job after losing his license is
evidence that Moton was discriminated against based on race and age. (Id. at 2–3.) Moton
argues that “if you treat one (1) employee a certain way, you have to treat your other
employees the same.” (Id. at 3.)
Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §
2000e, prohibits employment discrimination based upon race, color, religion, sex, or
national origin. To survive summary judgment on a Title VII racial discrimination claim, a
plaintiff must show that the evidence, considered as a whole, would permit a reasonable
factfinder to conclude that the plaintiff’s race caused the discharge. See Ortiz, 834 F. 3d at
765. Similarly, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C § 621 et
seq., forbids employment discrimination on the basis of age. 29 U.S.C. § 623(a)(1). In order
to survive summary judgment on an age discrimination claim, the plaintiff must show that a
reasonable juror could find that age was the “but-for” cause of the challenged adverse
employment action. See Gross v. FBL Fin. Serv., 557 U.S. 167, 180 (2009).
Moton is African American and was indisputably over forty years old at the time of
his discharge by Park Place. However, on the present record, no reasonable factfinder would
conclude that race or age caused or was a factor in Moton’s discharge. In his deposition,
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Moton agreed that the reason for his termination was his OWI conviction. (Dep. of Ned L.
Moton at 11:18–25, Decl. of David J. Hanus, Docket # 40-2.) Moton admitted that the only
fact he could point to for support of his discrimination claims was the Hotel’s disparate
treatment of himself and Toecker. (Id. at 19:20–20:21.) But to the extent Moton and Toecker
were similarly situated, they were treated identically: both had unclean driving records and
were rejected by the insurance underwriter, so both were forbidden from driving the van.
Moton misses the crucial distinction between himself and Toecker: Moton’s inability to
drive the hotel van left him unable to perform his job, while Toecker’s inability to drive the
van did not significantly impair his ability to do his job. No rational factfinder would
conclude that Moton would have kept his job as a van driver had he been younger or white,
or that these factors had any role whatsoever in the decision to discharge him.
Moton’s ongoing objection to Park Place’s assertion that it offered him alternative
employment is irrelevant, as is Moton’s alleged good-faith belief that his occupational
license allowed him to continue to operate the Hotel van. Even if Park Place did not offer
Moton any other positions, and even if Moton never intended to conceal relevant
information from his employer, there would still be no evidence that race or age played a
role in his discharge and therefore no basis for liability under either Title VII or the ADEA.
Because there is no evidence that race or age was a factor in the decision to terminate
Moton’s employment, Park Place is entitled to summary judgment on Moton’s
discrimination claims.
NOW, THEREFORE, IT IS ORDERED that Park Place’s motion for summary
judgment (Docket # 35) is GRANTED.

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IT IS FURTHER ORDERED that the clerk of court will enter judgment
accordingly.
Dated at Milwaukee, Wisconsin this 24th day of March, 2020.
BY THE COURT:
s/Nancy Joseph_____________
NANCY JOSEPH
United States Magistrate Judge

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