Opinion
Civil Action No. 99-2198-GTV.
July 17, 2000.
Mark A. Buchanan and Steven M. Sprenger, Kansas City, MO, for Johnny E. Jones, plaintiff.
Daniel B. Denk and Gregory P. Goheen, McAnany, Van Cleave Phillips, P.A., Kansas City, KS, for Roadway Express, Inc., defendant.
MEMORANDUM AND ORDER
Plaintiff filed this lawsuit against Defendant alleging that Defendant discriminated against him on the basis of his race and retaliated against him in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981 ("Section 1981"). The case is before the court on Defendant's motion for summary judgment (Doc. 35). For the reasons set forth below, the motion is granted in part and denied in part.
I. Summary Judgment Standard
Summary judgment is appropriate if the evidence presented by the parties demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could resolve the issue either way. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. (citingAnderson, 477 U.S. at 248). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. See id.
The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party will not bear the burden of persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citingCelotex, 477 U.S. at 325). 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 from which a reasonable jury could find in favor of the nonmoving party. See id.
II. Factual Background
The following facts are taken from the summary judgment record, and are either uncontroverted or viewed in the light most favorable to Plaintiff's case.
Plaintiff is an African-American male. He began working for Defendant as a part-time or "casual" dock worker on December 18, 1989.
Casual workers of Defendant work on an "as needed" basis; Defendant maintains the names of those individuals on a list and contacts them when work is available. Defendant advises its casual workers that "excessive absenteeism or tardiness" constitutes a ground for dismissal.
Throughout his employment as a casual worker, Plaintiff periodically informed Defendant that he was interested in employment as a full-time dock worker. On November 9, 1995, Defendant hired Ronnie Redmond, a Caucasian casual worker, as a full-time dock worker. On October 30, 1996, Defendant hired Calvin L. Johnston, also a Caucasian casual worker, as a full-time dock worker.
In September 1997, Plaintiff again expressed interest in becoming a full-time dock worker. Defendant informed Plaintiff that he would not be considered for a full-time dock worker position until after he upgraded his commercial driver's license to include all schedules and endorsements for hazardous materials handling, double-trailer handling, and triple-trailer handling. Plaintiff upgraded his license accordingly on September 25, 1997.
Defendant hired a Caucasian male named Lee Hendren on September 25, 1997 for a full-time dock worker position; Defendant hired a Caucasian male named Donald Cook on September 30, 1997 for a full-time dock worker position.
During the first week of October 1997, Plaintiff notified Defendant that he had upgraded his commercial driver's license to include the specific schedules and endorsements.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 13, 1997, asserting that Defendant had discriminated against him based on his race by refusing to hire him for a full-time dock worker position and hiring instead Caucasian males who had less seniority and no commercial driver's licenses. The EEOC notified Defendant of the charge by mail on October 23, 1997.
In November 1997, Defendant allegedly reviewed the attendance records for all of its casual employees and removed those individuals who had not made themselves available for work or who had been excessively tardy or absent during the preceding four month period. Defendant contends that, in determining "excessive" absenteeism or tardiness, it maintains a general policy to remove any casual employee who is absent or tardy four or more times in a four month period. Plaintiff had one unexcused absence and six tardies, and was removed from the list.
Plaintiff contends that he was never made aware of this general policy. Plaintiff contends that instead he understood that he was to receive a written warning if he became chronically absent or late, but that he never received any such warning. Plaintiff contends that, at the time Defendant notified him of his termination, Defendant did not mention any problems with him being absent or tardy; instead, Defendant informed him that he was being terminated because his performance was not "up to par."
III. Discussion
Plaintiff contends that Defendant discriminated against him on the basis of his race and retaliated against him in violation of both Title VII and Section 1981.
A. Discrimination
Plaintiff complains that Defendant discriminated against him on the basis of his race on four separate occasions when it refused to hire him and hired instead four Caucasian males to fill full-time dock worker positions. Specifically, Plaintiff complains that Defendant discriminated against him when it hired Ronnie Redmond, Calvin L. Johnston, Lee Hendren, and Donald Cook. In its motion for summary judgment, Defendant contends that Plaintiff's Section 1981 claim, insofar as it challenges the hiring of Ronnie Redmond and Calvin L. Johnston, is barred due to Plaintiff's failure to comply with the applicable statute of limitations. Similarly, Defendant contends that Plaintiff's Title VII claim, insofar as it challenges the hiring of Ronnie Redmond and Calvin L. Johnston, is barred due to Plaintiff's failure to exhaust his administrative remedies. The court agrees with both contentions.
1. Section 1981
Plaintiff concedes that his Section 1981 claim, insofar as it challenges the hiring of Ronnie Redmond and Calvin L. Johnston, is barred by the applicable statute of limitations. "The law of the forum state statute of limitations for personal injury actions provides the limitations period for civil rights claims under Section 1981." Boyd v. Unified Gov't of Kansas City, No. 98-2439, 1999 WL 1467229, at *9 (D. Kan. Nov. 10, 1999). In Kansas, that period is two years. See K.S.A. § 60-513(a)(4). Defendant hired Ronnie Redmond on November 9, 1995; Defendant hired Calvin L. Johnston on October 30, 1996. Plaintiff filed this action on May 6, 1999, clearly outside the two-year limitations period.
2. Title VII
"In a deferral state such as Kansas, a Title VII claimant must file his discrimination charge with the appropriate state or local agency, or with the EEOC, within 300 days of the alleged unlawful act." Peterson v. City of Wichita, Kan., 888 F.2d 1307, 1308 (10th Cir. 1989) (citing 42 U.S.C. § 2000e-5(e); EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 108 (1988)). Defendant hired Ronnie Redmond on November 9, 1995; Plaintiff, therefore, had 300 days, or until September 4, 1996, to file a discrimination charge concerning that act with the EEOC. Defendant hired Calvin L. Johnston on October 30, 1996; Plaintiff, therefore, had 300 days, or until August 26, 1997, to file a discrimination charge concerning that act with the EEOC. Plaintiff did not file his discrimination charge with the EEOC, however, until October 13, 1997.
Plaintiff contends that he filed an "Intake Questionnaire" with the EEOC on or about July 18, 1997, and that his later filed charge of discrimination should relate back to the date of the questionnaire for purposes of determining whether he filed his charge within 300 days of the allegedly unlawful acts. If this is true, Plaintiff's charge would be untimely with respect to Ronnie Redmond, but timely with respect to Calvin L. Johnston.
The Tenth Circuit has not had the occasion to address squarely the issue of whether an untimely filed charge can relate back to the date of a timely filed intake questionnaire, and thus make the questionnaire operate as a timely filed charge for purposes of establishing the appropriate 300-day filing period. This court determines that, at least in the circumstances of this case, it cannot.
In Tillman v. Beaver Express Serv., Inc., No. 89-1326, 1991 WL 26936, at *3 (D. Kan. Feb. 28, 1991), the plaintiff argued that an intake form, which was forwarded by the Kansas Commission on Civil Rights to the EEOC, "should be considered equivalent of a valid complaint with the EEOC, and that he therefore met the time limitation requirements for EEOC actions." Rejecting the argument, the court noted that "[t]he intake form is so spartan, so limited in the information it provides, that it really cannot be considered a substitute for a complaint submitted directly with the EEOC by the person claiming to be a victim of discrimination." Tillman, 1991 WL 26936, at *3. Like the intake form in the Tillman case, the Intake Questionnaire in this case is so limited in information that it cannot be considered a substitute for a charge, which at minimum must be a "written statement [from the person making the charge] sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). The Intake Questionnaire, insofar as it is represented to this court, provides nothing more than the names and addresses of the parties involved, and a box with an "X" in it, indicating that Plaintiff believes he was discriminated against. Critically, there is no description whatsoever of the action or practices complained of.
Plaintiff's "Exhibit R" contains a one page document entitled "Intake Questionaire." It appears from the exhibit that the Intake Questionaire may not be represented in its entirety. If this is the case, the Intake Questionaire may provide other pertinent information that the court would consider in determining whether the timely filed questionnaire essentially may operate as a timely filed charge. The court notes, however, that the timely filing of charges is a condition precendent to filing suit under Title VII, and "[t]he burden rests witha plaintiff employee to prove this condiditon precedent when the defendant employer specifically denies that the condition has been fulfilled." Morris v. State of Kansas Dept. of Revenue, 849 F. Supp. 1421, 1427 (D.Kan. 1994) (citation omitted).
Some courts have held that an intake questionnaire can operate as a timely filed charge in limited circumstances that are not relevant to this case. See, e.g., Philbin v. General Elec. Capital Auto Lease. Inc., 929 F.2d 321 (7th Cir. 1991) (treating timely filed intake questionnaire as timely filed charge where EEOC treated the questionnaire as a charge and employer was notified of the existence of charge); Casavantes v. California State Univ., Sacramento, 732 F.2d 1441 (9th Cir. 1984) (determining intake questionnaire sufficient to constitute charge where it included written statement sufficiently precise to identify the parties and describe generally the action or practices complained of).
The court ultimately concludes that Plaintiff's Section 1981 and Title VII claims, insofar as they challenge the hiring of Ronnie Redmond and Calvin L. Johnston, are barred. The court now turns to Plaintiff's discrimination claims insofar as they challenge the hiring of Lee Hendren and Donald Cook.
Both Title VII and Section 1981 prohibit an employer from, inter alia, refusing to hire an individual on the basis of race. See 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981(a). Where, as here, there is no direct evidence of discrimination, a claim for discrimination is evaluated under the McDonnell Douglas burden-shifting analysis. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1208 (10th Cir. 1999). Accordingly, Plaintiff initially bears the burden of establishing a prima facie case of discrimination. See id. (citing Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995)). If Plaintiff is successful in doing so, the burden shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. See id. (citing same). If Defendant offers a nondiscriminatory reason, the burden shifts back to Plaintiff to prove that Defendant's proffered reason is merely pretextual, or unworthy of credence or belief. See id. (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
The court analyzes Section 1981 discrimination claims according to the same standards as Title VII discrimination claims. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1994); Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994). Therefore, the court discusses the two claims together in this opinion.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case, Plaintiff must demonstrate that (1) he is a member of a protected class, (2) he applied, and was qualified, for an available position, (3) Defendant rejected him despite those qualifications, and (4) Defendant either kept the position open and continued to seek applicants from persons of Plaintiff's qualifications or hired a person outside of Plaintiff's protected class for the position. See Hernandez v. City of Ottawa, Kan., 991 F. Supp. 1273, 1277 (D. Kan. 1998) (citing Randle, 69 F.3d at 451 n. 13; Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991)).
Defendant contends that Plaintiff is unable to establish a prima facie case because he cannot demonstrate that he was qualified for the position about which he complains that he was not hired. Specifically, Defendant contends that while Plaintiff possessed a commercial driver's license, he lacked the requisite upgraded commercial driver's license, which included all schedules and endorsements for hazardous materials handling, double-trailer handling, and triple-trailer handling. Plaintiff contends that an upgraded commercial driver's license was not a true prerequisite to obtaining the position. In support, he points out that this alleged criteria was never in writing, and that Defendant had previously hired two Caucasian individuals (Ronnie Redmond and Calvin L. Johnston) for the position who did not possess commercial driver's licenses, on the condition that they would obtain upgraded commercial driver's licenses within 90 days.
The court determines that Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to whether an upgraded commercial driver's licence was a true prerequisite to obtaining a full-time dock worker position. Accordingly, the court also determines that, at least for purposes of this motion, Plaintiff has sufficiently established a prima facie case of discrimination.
The burden now shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. See Shorter, 188 F.3d at 1208 (citing Reynolds, 69 F.3d at 1533). Defendant meets this burden by contending that it refused to hire Plaintiff for the September 1997 positions because (1) he did not possess an upgraded commercial driver's license, (2) he was less qualified than the two individuals that were hired for the positions, and (3) his attendance as a casual worker was not satisfactory.
The burden now shifts back to Plaintiff to prove that Defendant's proffered reasons are merely pretextual, or unworthy of credence or belief. See id. (citing Morgan, 108 F.3d at 1323; Randle, 69 F.3d at 451). "To avoid summary judgment, a plaintiff need not demonstrate that discriminatory reasons motivated the employer's decision"; instead "the plaintiff's burden is only to demonstrate a genuine dispute of material fact as to whether the proffered reasons [are] unworthy of belief." Morgan, 108 F.3d at 1321-22 (citing Randle, 69 F.3d at 451); see also Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2108-09 (2000). Defendant contends that Plaintiff is unable to meet his burden. The court disagrees.
While Defendant claims that it refused to hire Plaintiff because he did not possess an upgraded commercial driver's license, the evidence shows that this alleged criteria was never in writing, and that Defendant had previously hired two Caucasian individuals as full-time dock workers, one in 1995 and one in 1996, who did not even possess commercial driver's licenses — let alone upgraded commercial driver's licenses — on the condition that they would obtain upgraded licenses within 90 days.
Moreover, the evidence shows that Defendant's employment manual entitled, "New Dockworker Training Program, Local Terminal Information," states
All dockworkers begin their career at Roadway Express, Inc., as a casual worker. . . . There is no set time that a person will work as a casual before promotion to regular [full-time] status.
At the time the positions were filled, Plaintiff did not possess an upgraded commercial driver's license, but he had worked for Defendant as a casual employee for approximately eight years. On the other hand, Lee Hendren and Donald Cook, the two Caucasian individuals that were hired to fill the positions, possessed upgraded commercial driver's licenses, but they had not served as casual employees for Defendant at all; instead, they were former drivers of a regional trucking company that had gone out of business earlier that year.
Finally, the evidence indicates that Defendant did not review its attendance records and discover that Plaintiff had been absent once and tardy six times in the preceding four months until November 1997, one month after Defendant refused to hire Plaintiff for the positions at issue.
If Defendant had reviewed its attendance records prior to the time that it refused to hire Plaintiff, the court would determine that a genuine issue of material fact exists as to whether Plaintiffs attendance record was unsatisfactory.
The court concludes that Plaintiff has presented sufficient evidence to demonstrate a genuine issue of material fact as to whether Defendant's proffered reasons for refusing to hire him are pretextual. Defendant's motion for summary judgment is denied with respect to Plaintiff's Title VII and Section 1981 discrimination claims insofar as they challenge the hiring of Lee Hendren and Donald Cook.
B. Retaliation
Plaintiff complains that Defendant unlawfully retaliated against him in violation of Title VII and Section 1981. Plaintiff's claims for retaliation are analyzed under the familiar McDonnell Douglas burden-shifting analysis discussed above.
The court analyzes Title VII retaliation claims according to the same standards as Section 1981 retaliation claims. See Patterson, 491 U.S. at 186; Durham, 18 F.3d at 839. Plaintiffs two claims, therefore, are discussed together in this opinion.
To prove retaliation, Plaintiff must show that (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment action. See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 (10th Cir. 1998); Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993). In the absence of direct proof of causal connection, Plaintiff can create an inference of causal connection by showing that the adverse employment action was closely connected in time to the protected activity. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997); Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982).
In this case, Plaintiff engaged in a protected activity on October 13, 1997 when he filed a formal charge with the EEOC. On October 23, 1997, the EEOC sent notice of Plaintiff's charge to Defendant. Defendant thereafter subjected Plaintiff to an adverse employment action — termination — on November 12, 1997. The court determines that the temporal proximity of Plaintiff's protected activity and Plaintiff's termination creates an inference of causal connection. See Conner, 121 F.3d at 1395 (holding that one and one-half months between protected activity and adverse employment is sufficient temporal proximity). Plaintiff, therefore, has sufficiently established a prima facie case of retaliation.
Defendant contends that the persons responsible for making the decision to terminate Plaintiff were not aware of Plaintiffs filing with the EEOC prior to making their decision and, therefore, no inference of causal connection should be made. The record indicates, however, that, at minimum, a genuine issue of material fact exists as to whether those persons were aware of Plaintiffs filing.
The burden now shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. See Shorter, 188 F.3d at 1208 (citing Reynolds, 69 F.3d at 1533). Defendant meets this burden by contending that it fired Plaintiff for "excessive absenteeism and tardiness."
The burden now shifts back to Plaintiff to prove that Defendant's proffered reason is merely pretextual, or unworthy of credence or belief. See id. (citing Morgan, 108 F.3d at 1323; Randle, 69 F.3d at 451). "To avoid summary judgment, a plaintiff need not demonstrate that discriminatory reasons motivated the employer's decision"; instead "the plaintiff's burden is only to demonstrate a genuine dispute of material fact as to whether the proffered reasons [are] unworthy of belief." Morgan, 108 F.3d at 1321-22 (citing Randle, 69 F.3d at 451); see also Reeves, 120 S. Ct. at 2108-09. The court determines that Plaintiff has sufficiently met his burden.
Foremost, temporal proximity "may throw doubt on defendant's . . . justification." Vigil v. Colorado Dept. of Higher Educ., No. 98-1174, 1999 WL 407479, at *4 (10th Cir. June 21, 1999) (citing Conner, 121 F.3d at 1398). After eight years of employment with Defendant, Plaintiff was terminated approximately one month after he filed a charge of discrimination with the EEOC, and 19 days after Defendant was notified of the charge. The court determines that the temporal proximity of Plaintiff's filing and Plaintiff's termination is sufficient alone to demonstrate a genuine issue of material fact as to whether Defendant's proffered reason — excessive absenteeism and tardiness — is pretextual.
In addition, other evidence tends to demonstrate pretext. Defendant maintains that it fired Plaintiff pursuant to its unwritten but "uniform policy of removing individuals who had more tha[n] four absences or tardies in a four month period." Plaintiff admits that he was advised that excessive absenteeism or tardiness would constitute a ground for dismissal, but contends that he was never told what constituted excessive absenteeism or tardiness; specifically, Plaintiff contends that he was never informed, verbally or in writing, that four or more absences or tardies within a four month period would result in his termination. Instead, Plaintiff maintains that it was his understanding that he would receive a written warning if he was perceived as being chronically late or absent. Plaintiff did not receive any written or verbal warnings prior to his termination. Moreover, Plaintiff contends that, at the time Defendant informed him of his termination, Defendant did not state that he was being terminated because he was excessively tardy or absent, but instead stated that he was being terminated because his performance had not been "up to par."
The court ultimately concludes that Plaintiff has sufficiently demonstrated a genuine issue of material fact as to whether Defendant's proffered reason for his termination is pretextual. Defendant's motion for summary judgment with respect to Plaintiff's retaliation claims is denied.
Defendant also moves for summary judgment with respect to the issue of damages. The court determines that issues of fact remain which would render judgment as to damages inappropriate at this time.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion for summary judgment (Doc. 35) is granted with respect to Plaintiff's discrimination claims insofar as they challenge the hiring of Ronnie Redmond and Calvin L. Johnston; denied with respect to Plaintiff's discrimination claims insofar as they challenge the hiring of Lee Hendren and Donald Cook; denied with respect to Plaintiff's retaliation claims; and denied with respect to damages.
IT IS SO ORDERED.