Opinion
Case No. 02-4015-RDR
September 9, 2003
MEMORANDUM AND ORDER
This is an employment discrimination action alleging race discrimination in plaintiff's terms and conditions of employment and in plaintiff's discharge from employment by defendant. This action is brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the Kansas Act Against Discrimination, K.S.A. 44-1009. Plaintiff alleges that he suffered disparate treatment and was discharged because he is black. This case is now before the court upon defendant's motion for summary judgment.
Uncontroverted facts
The following facts appear to be uncontroverted. Plaintiff started his employment with defendant in October 1994. Plaintiff worked as an orderly and did traction. He also worked as a second scrub, holding retractors during surgery.
Plaintiff received verbal counseling and written counseling in April 1998 and September 1998 for being late to work. He was told that further tardiness would result in further disciplinary action, probation and/or termination. In December 1998 plaintiff received a written warning for parking infractions. He was told that another ticket could result in suspension. In February 1999, plaintiff was suspended because of parking violations. A few months later, in May 1999, plaintiff received a written disciplinary notice for using a hospital cell phone to make personal calls during work. The following month, on June 2, 1999, plaintiff received a written disciplinary notice for excessive absenteeism and late arrival to work. It was his second counseling for absenteeism and his third for late arrival to work. He was warned that he would be terminated for the next violation. The next month, on July 6, 1999, plaintiff was suspended without pay for being late to work.
On December 8, 1999 plaintiff was suspended again for three days for violating parking regulations. He was warned that the next ticket could result in his termination. In February of 2000, plaintiff was warned to stay out of the lounge if he was not on break or in a lunch period. On April 11, 2000 plaintiff was given a written disciplinary notice for being unable to respond to a call obligation. He was told he could be terminated if this happened again.
Plaintiff does not deny that he received this disciplinary notice. He does deny that he was unavailable to respond.
Four or five months later, on September 11, 2000, plaintiff was on call from 11:00 p.m. to 7:00 a.m. His wife was also on call and was called into work earlier that evening. Plaintiff received a call to come into work. He called back, spoke to Danielle Kline, and said that because his wife was already at work, he would have to wake his kids and take them to his mother's house if he had to come to work. He asked if someone else could cover his call. He was told to speak to his supervisor, Jane Asher. Plaintiff called Ms. Asher. Then, he spoke again to Ms. Kline and told her that Ms. Asher said it was alright if someone else covered the call. Ms. Kline contacted Eli Caldino, who covered plaintiff's call.
The next day, plaintiff was terminated allegedly because he was not available for call. Plaintiff asserts that he told Ms. Asher that he would cover the call if she did not approve of having someone else do so, but that Ms. Asher gave her approval.
Plaintiff alleges that Caucasian employees in similar positions did not receive the discipline he received or were not terminated when they missed calls. Plaintiff asserts that Klint Paillette missed calls five or six times and was not given a written warning or terminated. Hospital records show that Mr. Paillette was suspended once in 1999 for inappropriate verbal behavior. Plaintiff has stated that Jeff Clark missed calls and was not disciplined. Hospital records show that Mr. Clark's employment ended in 1999. He received a suspension in 1995 for a parking violation. Plaintiff has stated that Amy Stalcup missed call and was late nearly every week but did not receive discipline. Hospital records show that Stalcup was employed by defendant from September 1999 until September 2002. Records establish that she was disciplined on February 7, 2000 for being late to work. Plaintiff has stated that Pat Gifford missed calls a couple of times and was not disciplined. Hospital records indicate that Gifford received a written warning for parking tickets in 1999 and was disciplined in April 2000 for not being on call. Plaintiff asserts that Alan Tripps missed calls and was not disciplined. Records indicate that Tripps was employed from January 1991 through July 1995 and that he had no disciplinary notices in his file. Plaintiff has also stated in an affidavit that Rodney Overstreet was a white employee who was consistently late but not written up. Plaintiff further declares in the affidavit that it has been a long-established practice for employees to decline, trade, switch and cover other employees' on-call time, and that white employees traded or covered each other's call without permission. Plaintiff states that he was called to cover for Jeff Clark, a white employee, who could not be located during his scheduled on-call time, and that he was called to do this five or six times for other employees.
Legal standards
Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A discrimination claim under Title VII may be proved with direct or indirect evidence. This is a case where indirect evidence must be considered. A burden-shifting analysis is applied as set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The plaintiff has the burden of demonstrating a prima facie case of racial discrimination. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000). If this is accomplished, then the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for its employment action. Id. Then the burden shifts back to the plaintiff to show that the employer's justification is pretextual. Id.
To prove pretext, a plaintiff must show either that "a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). A plaintiff can demonstrate pretext by showing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). One manner of showing pretext is to demonstrate that the employer treated the plaintiff "differently from other similarly-situated employees who violated work rules of comparable seriousness." Kendrick, 220 F.3d at 1230.
Plaintiff's claims
Plaintiff alleges that he was unlawfully discharged and disciplined for missing call and that he was denied the year-end bonus pay for 1999 in a discriminatory fashion. Final Pretrial Order, Doc. No. 29, pp. 4-5.
Defendant's arguments
Defendant's first argument in the summary judgment motion is that the bonus pay claim should be dismissed because it was not made in the complaint or in plaintiff's administrative charge. Plaintiff has not responded to this argument. The court shall assume that plaintiff is conceding the validity of summary judgment against this claim. We agree that the dismissal of the claim is proper. See DeVoe v. Medi-Dyn, Inc., 782 F. Supp. 546, 554 (D.Kan. 1992). Under Tenth Circuit law, however, the claim must be dismissed for lack of jurisdiction, rather than upon summary judgment. See Jones v. Runyon, 91 F.3d 1398, 1400-02 (10th Cir. 1996) cert. denied, 520 U.S. 1115 (1997).
Defendant's next argument for summary judgment asserts that plaintiff has not and cannot demonstrate a material issue of fact regarding whether the grounds for plaintiff's discipline and termination are a pretext for discrimination.
Defendant admits for the purposes of the instant motion that plaintiff has made a prima facie case.
In connection with this contention, defendant asserts that plaintiff cannot demonstrate that his supervisor, Ms. Asher, did not honestly believe that he failed to meet his call obligation. Defendant cites several cases for the proposition that the court must accept the facts as they appeared to the person taking the employment action.
We do not believe this argument warrants summary judgment for defendant. While Ms. Asher allegedly believed that defendant was not able to cover his call (see Exhibit 11 to summary judgment motion), the personnel action sheet terminating defendant states that plaintiff could not be reached so he failed to meet his call responsibility. This raises some question as to the grounds for terminating plaintiff. Furthermore, there is sworn testimony from plaintiff that he spoke to Ms. Asher and told her he would cover the call if she did not approve of someone else covering the call, but she gave her approval. Finally, there is evidence from the testimony and affidavit of plaintiff that white employees in similar situations were permitted to have other persons cover their call responsibilities.
This is not a situation where there are differing assessments of qualifications or performance in the area of communications skills and motivation. E.g., Bullington v. United Air Lines, Inc., 186 F.3d 1301 (10th Cir. 1999). This is not a situation where an employer is forced to evaluate and make judgments on the basis of reports from third parties regarding the actions of an employee. E.g., Wood v. City of Topeka, 90 F. Supp.2d 1173 (D.Kan. 2000). In other words, the court believes the case law cited by defendant can be distinguished from the record before the court upon the instant motion.
Defendant contends that plaintiff has not established that the white employees whom he claims were not discharged for missing call were similarly situated as far as work disciplinary history. Defendant asserts that these employees did not have the checkered history of disciplinary warnings and suspensions that plaintiff had. This contention seems to miss the point. Plaintiff asserts that white employees were not disciplined even though they engaged in conduct for which defendant was disciplined. If these employees had the same disciplinary history as plaintiff, it would conceivably disprove plaintiff's point which is that these employees did not receive suspensions and warnings when they were late to work and missed call, but defendant did.
Plaintiff has named several employees who worked about the same time in the same department and usually for the same supervisor. He has claimed that they did not receive the same discipline for the same misconduct. He has also claimed that a general practice of allowing other persons to cover call was not permitted in his case. Defendant asserts that plaintiff does not have first-hand knowledge of these employees' work histories and that the affidavit plaintiff has submitted to support his claim is too conclusory or vague. Defendant cites Henderson v. Montgomery County, 213 F. Supp.2d 1262 (D.Kan. 2002).
It appears to the court that plaintiff has worked with most if not all of the people he identifies in his deposition and affidavit. He seems to be alleging first-hand knowledge. As noted before, it would refute plaintiff's contention if the work histories of these employees demonstrated that they were suspended and received formal warnings for engaging in the same misconduct plaintiff is alleged to have committed. Defendant's evidence on this point appears to support plaintiff's contention that these employees were not disciplined in the same way for the same misconduct plaintiff allegedly committed. Finally, theHenderson case is distinguishable. There, the plaintiff was relying upon a broad statement that "similar behavior from other employees was not treated in the same manner." 213 F. Supp.2d at 1270. Here, plaintiff is not relying so substantially upon a conclusory allegation of disparate treatment. In Henderson, the plaintiff also claimed that a named employee was not punished for sleeping on the job and having complaints registered about his performance. However, the plaintiff in Henderson was not disciplined for sleeping on the job and could not document the "complaints" against the other employee. In other words, it did not appear that the other employee was similarly situated to the plaintiff in Henderson. In the instant case, plaintiff is alleging that similarly situated white employees were not disciplined for not covering calls and that plaintiff was. He asserts that he was not allowed the advantage of a policy of permitting other employees to cover calls although that policy was applied to other white employees. In other words, the affidavit from plaintiff in this case is more specific, concrete and material than the affidavit inHenderson.
Conclusion
In conclusion, the court shall dismiss plaintiff's bonus pay claim for lack of jurisdiction. Otherwise, the court shall deny defendant's motion for summary judgment. The court finds that a material issue of fact regarding pretext remains in the record before the court.