Opinion
Case No. 01-4172-RDR
May 22, 2003
MEMORANDUM AND ORDER
This is an employment discrimination action. Plaintiff brings this action against his former employer, Safeway, Inc. He asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. This matter is presently before the court upon defendant's motion for summary judgment. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
I.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Oklahoma, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics International, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The nonmoving party may not rest on its pleadings but must set forth specific facts. Id.
The court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
II.
Plaintiff makes three claims under the aforementioned statutes: (1) he was subjected to a hostile work environment during his employment because of his national origin; (2) he was subjected to disparate treatment in the terms and conditions of his employment because of his national origin; and (3) he was terminated because of his national origin or in retaliation for making complaints of discrimination. The defendant contends in the instant motion that it is entitled to summary judgment on all of plaintiff's claims.
III.
Many of the pertinent facts are uncontroverted. The court shall set forth those facts and then consider others as we address the claims and arguments of the parties.
Plaintiff is a citizen of the United States of Pakistani descent. Safeway is a Delaware corporation that has a pet food factory in Emporia, Kansas. Safeway produces dog food, cat food and birdseed at the Emporia plant. Safeway operates two production lines at its Emporia plant, the large line and the small line. Production workers and line operators are members of the Bakery Confectionary Tobacco Workers and Grain Millers International Union, Local 218 (the "union").
Plaintiff was hired by Safeway as a production worker on March 23, 1997. In September 1997 plaintiff bid into the job of utility operator and remained in that job until his termination in May 2001. As a utility operator, plaintiff was responsible for operating the large pet food line. Between July 1997 and March 2000, plaintiff received nine corrective action reports for unexcused absences and/or tardiness. From March 1998 to September 1999, plaintiff was written up three separate times for work performance errors.
On August 30, 2000, plaintiff was suspended for running twelve pallets of birdseed without checking to ensure that the bags had a code date on them. Plaintiff, through the union, grieved this suspension and, as settlement of the grievance, agreed that this would be considered a first warning and would remain in effect for one year until August 30, 2001.
Less than three months later, on October 16, 2000, plaintiff was suspended again for running 19 pallets of 22-pound bags with only 20 pounds of feed in each bag. Plaintiff, through his union, also grieved this suspension. At the settlement of the resulting grievance, this work performance failure was considered a second warning and was to remain in effect for one year or until October 16, 2001. The settlement specified that if plaintiff had another "significant work performance failure" during the one-year period following the grievance, it would result in a minimum of a three-day suspension, pending investigation and possible termination.
On April 25, 2001, plaintiff was found to have run twenty pallets of 18-pound bags of Safeway Gourmet cat food with 20 pounds of feed. Plaintiff admitted overfilling the bags. Safeway considered plaintiff's overfilling of 1000 bags a "significant work performance failure" and suspended him pending investigation and termination. Plaintiff was terminated on May 1, 2001.
Plaintiff's union grieved the termination. The grievance escalated to arbitration on May 17, 2001. The arbitrator found that Safeway had just cause to terminate plaintiff and upheld the termination. The arbitrator concluded that plaintiff did overfill the bags and such conduct was a "significant work performance failure."
From 1990 to 1999, Safeway followed a system of progressive discipline for absenteeism and tardiness. Under the system of progressive discipline, the employee's first three absences or tardies required contact with the employee regarding the absence or tardy, but no discipline. The discipline then escalated with each absence or tardy up to the seventh infraction, which resulted in termination. The absence or tardy remained on the employee's record for a floating one-year period.
In August 1999, the attendance policy changed. Under the new attendance policy, employees were assessed points for each instance of absenteeism or tardiness, and the level of discipline was based on total points the employee had accumulated. An absence counted as one point and a tardy counted as one-half point. Like the old attendance policy, points were maintained on an employee's record on a rolling twelve-month period. Discipline escalated with the accumulation of points with termination after nine points.
Under Safeway's progressive discipline for work performance errors, an employee would receive a four-step succession of discipline for a work performance violation. He would receive written warnings for the first two violations, then suspension, and then suspension pending investigation and discharge. Effective April 21, 2000, Safeway and the union agreed that work performance errors would remain on the employee's record for one year and then drop off. Until April 21, 2000, work performance errors had remained on an employee's record indefinitely. Written notice of the incident resulting in discipline was generally communicated through a document titled "Corrective Action Report."
IV.
In their motion for summary judgment, Safeway makes several arguments. First, it argues that § 1981 does not provide relief for claims of national origin discrimination. Second, it asserts that plaintiff has not provided sufficient evidence of disparate treatment in the terms and conditions of his employment. Finally, it contends that plaintiff has not presented sufficient evidence that he was terminated for discriminatory reasons or in retaliation for having made discrimination complaints.
A.
Safeway initially contends that § 1981 does not provide relief for plaintiff's claims of national origin discrimination. Under the circumstances in this case, the court must agree.
This case is virtually identical to Shinwari v. Raytheon Aircraft Co., 25 F. Supp.2d 1206 (D.Kan. 1998), aff'd on other grounds, 215 F.3d 1337 (10th Cir. 2000), cert. denied, 531 U.S. 1104 (2001). In Shinwari, a Pakistani-born former employee of Raytheon sought relief under § 1981 for alleged discrimination because "his Nation of origin is Pakistan — he is not a native-born American citizen." Though he did not specifically allege race discrimination, Shinwari argued that his inclusion of the terms "race or color" and "national origin or color" when referring to the elements of a cause of action for discrimination in the pretrial order were sufficient to state a claim under the statute. Id. Judge Vratil disagreed, holding that plaintiff "at a minimum . . . must also identify how his color motivated Raytheon." Id. The court further concluded that dismissal was appropriate "[b]ecause the Pretrial Order contains no allegations that Raytheon subjected plaintiff to discrimination . . . on the basis of his race or color." Id.
The pretrial order here virtually mirrors the allegations made by the plaintiff in Shinwari concerning the § 1981 claims. Plaintiff seeks relief solely on the basis of his place or nation of his origin, not on the basis of his race or color. Throughout the pretrial order, plaintiff refers only to national origin. Given these circumstances, the court believes that plaintiff's § 1981 discrimination claims must be dismissed. See also Vasilescu v. Black Veatch Pritchard, Inc., 155 F. Supp.2d 1285, 1297 n. 3 (D.Kan. 2001).
B.
The court shall next turn to the plaintiff's Title VII and KAAD claims. The court shall apply Title VII's standards to plaintiff's KAAD claims because the statutory schemes are analogous. Best v. State Farm Mutual Automobile Insurance Co., 953 F.2d 1477, 1480 n. 2 (10th Cir. 1991).
Upon first reading the plaintiff's response to the defendant's motion for summary judgment, the court believed that summary judgment would have to be denied on plaintiff's claims of disparate treatment and unlawful termination. The court, however, proceeded to carefully examine the discovery record that had been attached by the parties. The court learned that many of the allegations and purported uncontroverted facts set forth by the plaintiff were not supported by the discovery record.
To survive summary judgment on a hostile environment claim, plaintiff "must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Davis v. United States Postal Service, 142 F.3d 1334, 1341 (10th Cir. 1998) (quotations omitted). He must also show that the harassment was based upon his national origin. See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (applying standard in racial discrimination case). All of the circumstances must be examined before a court can conclude that the environment is one that a reasonable person would find abusive or hostile. Harris, 510 U.S. at 21, 23.
The review of the record shows only a few instances of insulting or demeaning conduct by the defendant's employees. Plaintiff was called a "nigger" or "sand nigger" by four Safeway employees. Plaintiff was also subjected to the use of the term "nigger-rigged" and a joke regarding a blonde woman and a nigger.
The court does not find that the evidence offered by the plaintiff is sufficiently severe or pervasive to alter the conditions of his employment. See Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261-63 (10th Cir. 1998). The language used by the defendant's employees is reprehensible, but it was not sufficiently severe or pervasive to meet the standard necessary for a hostile work environment. Moreover, the record demonstrates that disciplinary action was taken against the four employees when the defendant was made aware of the inappropriate language. Accordingly, the court finds that Safeway is entitled to summary judgment on this claim.
C.
To establish a case of intentional discrimination, plaintiff has two options: he may satisfy his burden of proof by offering direct evidence of discriminatory intent or, if the evidence is circumstantial, he may demonstrate such intent by following the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Thomas v. Denny's Inc., 111 F.3d 1506, 1509 (10th Cir. 1997). To prevail by coming forth with direct evidence, "a plaintiff must introduce direct or circumstantial evidence that the alleged [discriminatory] motive `actually relate[s] to the question of discrimination in the particular employment decision, not to the mere existence of other, potentially unrelated, forms of discrimination in the workplace.'" Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999) (internal citations omitted). Plaintiff has not come forward with any direct evidence of race discrimination, so the McDonnell Douglas analysis controls.
Under the McDonnell Douglas framework, plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Once he establishes a prima facie case, the burden shifts to Safeway, who must offer a legitimate reason for the disparate treatment. Id. Once Safeway has set forth a facially nondiscriminatory explanation for its conduct, the burden shifts back to plaintiff, who must establish "a genuine dispute of material fact as to whether [defendant's] proffered reason for the challenged action is pretextual." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Plaintiff can show pretext by demonstrating that discrimination was the real reason for the adverse action. Trujillo v. University of Colorado Health Sciences Center, 157 F.3d 1211, 1215 (10th Cir. 1998).
The defendant has argued that it is entitled to summary judgment on plaintiff's claims of disparate treatment in the terms and conditions of his employment. The defendant asserts that plaintiff has failed to provide sufficient evidence of disparate treatment on any of his contentions.
Plaintiff claims that he was discriminated against by Safeway in (1) use of leave; (2) use of leave coupons; (3) application of attendance policies; (4) disciplinary policies; (5) safety policies; and (6) threats of termination. As support for these claims, plaintiff has provided some vague references to Caucasian employees. He has suggested that other Caucasian employees were late to work and were not disciplined, and at least one Caucasian employee was able to use leave coupons contrary to company policy. He also notes that some Caucasian employees were allowed to engage in work performance errors without discipline while he was severely penalized for such errors.
The court has thoroughly reviewed the evidence produced by the parties. The court has been unable to find any valid evidence to support the plaintiff's contentions. The evidence offered by plaintiff to support his disparate treatment claims is based upon hearsay and belief. Hearsay, of course, cannot be considered on summary judgment. Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir. 1995) (inadmissible hearsay will not defeat summary judgment). Other testimony offered by the plaintiff appeared to be based upon speculation and conjecture. Plaintiff has offered some vague allegations, but nothing has been produced showing that similarly situated employees were treated differently than plaintiff. Accordingly, without such evidence, the court shall grant summary judgment to the defendant on plaintiff's claims of disparate treatment in the terms and conditions of his employment.
D.
The court shall now turn to plaintiff's claim of discrimination in his termination. The defendant has initially argued that it is entitled to summary judgment on plaintiff's termination claim because plaintiff has not made out a prima facie case of discrimination. The defendant argues that plaintiff has not demonstrated that he was qualified for his position. In making this argument, the defendant relies upon plaintiff's attendance and tardiness problems as well as his work performance errors. The court finds no merit to this contention. The Tenth Circuit has made clear that an employee's work performance should not be considered when determining whether the employee has made a prima facie case of employment discrimination. MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1119-20 (10th Cir. 1991). Rather, a plaintiff may establish his prima facie case by presenting "credible evidence that [he] continued to possess the objective qualifications [he] held when [he] was hired, or by [his] testimony that [his] work was satisfactory, even when disputed by [his] employer, or by evidence that [he] held [his] position for a significant period of time." Id. at 1121. Here, there is sufficient evidence that plaintiff continued to possess the objective qualifications he held when he was hired. Accordingly, there is little question that plaintiff provided sufficient evidence to meet the requirements of a prima facie case.
The defendant has next suggested that it has offered a legitimate, non-discriminatory reason for plaintiff's termination, i.e., his work performance errors. We agree. In light of that finding, the court must turn to the issue of pretext.
Plaintiff provides two arguments in support of his position that the reason offered for his termination was pretextual for discrimination. First, he asserts that the termination was not consistent with Safeway's progressive discipline policy because the incident that led to his termination was not a "significant" work performance failure. Second, he contends that another Safeway employee had more "write-ups" than he did and he was not terminated.
Much of the pertinent evidence on plaintiff's termination is uncontroverted. Plaintiff entered into a settlement agreement with his union following his October 2000 work performance failure. The agreement provided that if he had another "significant" work performance failure, then termination could be considered. He subsequently had a work performance failure on April 25, 2001, and Safeway considered it significant. He was thereafter terminated.
Plaintiff suggests that his work performance failure on April 25, 2001 was not significant because he overfilled the bags rather than underfilled them. There is evidence to indicate that under filling the bags causes greater problems and expense. However, there is no evidence to support the belief that overfilling was not a significant work performance failure. The plant manager indicated that Safeway viewed both errors as significant. She acknowledged that both are costly to the company. There is nothing to support the plaintiff's suggestion that his conduct was not a "significant work performance failure." Accordingly, we fail to find that Safeway's decision to terminate plaintiff based upon his work performance failure of April 25, 2001 was pretextual for discrimination.
The court also does not find sufficient evidence to support plaintiff's contention that another employee was treated better than him. Plaintiff has failed to provide the court with sufficient information concerning the transgressions of the other employee to determine if an inference of discrimination is raised. There is no evidence of what work performance failures were made by the other employee in a twelve-month period. Thus, plaintiff has failed to show that he was similarly situated with the other employee. See Hysten v. Burlington Northern and Santa Fe Railway Co., 296 F.3d 1177, 1182 (10th Cir. 2002). Without such evidence, we find no evidence of discriminatory animus.
In sum, the court finds insufficient evidence of discrimination by Safeway in its termination of plaintiff. Safeway is entitled to summary judgment on this claim.
E.
Plaintiff claims that he was retaliated against because he made a complaint to Barbara Wry, the manager of the Emporia plant, on April 13, 2001. During that meeting, he told Ms. Wry that he felt that he was being treated differently than other employees of the company. Plaintiff asserts that this claim is sufficient to establish a prima facie claim of retaliation because he was terminated three weeks after the complaint.
In its motion for summary judgment, Safeway argues that plaintiff cannot demonstrate a causal connection between his complaints of discrimination and his discharge. Safeway notes that while plaintiff did file various charges of discrimination with various governmental agencies, the last charge was filed on December 28, 2000, over four months prior to his termination. Relying on Vasilecu and the Tenth Circuit cases cited therein, Safeway contends that this period is too long to establish a causal connection. In his response, plaintiff apparently agrees because he makes no effort to assert that his retaliation claim is based upon his past formal filings of charges of discrimination with governmental agencies. Rather, he contends that his retaliation claim is based upon a conversation he had with Ms. Wry on April 13, 2001. Safeway has argued in its reply that this conversation with Ms. Wry does not constitute protected activity. Safeway contends that plaintiff's general complaint of discrimination is not sufficient to demonstrate that he engaged in protected opposition to discrimination.
To evaluate a claim of retaliation, the court also applies the burden-shifting analysis of McDonnell Douglas. Plaintiff must show the following to demonstrate a prima facie case of retaliation: (1) that he engaged in protected opposition to discrimination; (2) that he was subjected to an adverse employment action after the protected opposition; and (3) that there is a causal connection between the protected activity and the adverse action. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). Here, there is no dispute that plaintiff suffered an adverse employment action, termination. The dispute concerns whether he engaged in protected opposition to discrimination and whether he has established a causal connection between his protected opposition and his termination.
Initially, the court agrees with Safeway that plaintiff has not sufficiently demonstrated causation based upon the filing of the formal charges of discrimination. The last charge of discrimination was filed over four months prior to his termination. Based upon these undisputed facts, the court must conclude that no reasonable jury could find that plaintiff has established causation. See Vasilescu, 155 F. Supp.2d at 1296-97.
The other issue is not as clear. In Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 560 (D.Kan. 1995), Judge Vratil addressed the scope of protected activity under the ADEA, which would apply to the claims asserted by the plaintiff:
While some courts have indicated that vague references to unspecified discrimination are not protected, no clear rule has emerged as to the level of specificity required, and the standard employed by most courts is not exacting.
Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination. But the thrust of inartful, subtle, or circumspect remarks nevertheless may be perfectly clear to the employer, and the Court discerns no evidence that Congress intended to protect only the impudent or articulate. The relevant question, then, is not whether a formal accusation of discrimination is made but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.
In Lundien v. United Airlines, 242 F.3d 389, 2000 WL 1786579 at *9 (10th Cir. 2000) (table case), the Tenth Circuit considered a case in which the employee made a comment to management that she "hoped this was not an example of disparate treatment." The court concluded that "[h]er statement was simply a conclusory remark, without sufficient detail for [the defendant] to know what to investigate." Id.; see also Vasilescu, 155 F. Supp.2d at 1294-96 (plaintiff's complaints to her employer that she was "treated as a foreigner" and was "surprised by the discriminatory conditions of [her] employment" are not detailed enough to constitute "protected opposition to discrimination"); Robleado v. Deffenbaugh Industries, Inc., 136 F. Supp.2d 1179, 1190-91 (D.Kan. 2001) (general complaints of discrimination to employer, without more explanation, did not constitute "protected opposition to discrimination").
The complaint made by plaintiff here to Ms. Wry is quite similar to those made in Lundien, Vasilescu and Robleado. Plaintiff made a vague statement to Ms. Wry that he believed that others were being treated differently than him. He did not elaborate upon it. He provided nothing to justify his comment and he failed to suggest the basis of the alleged disparate treatment. Under these circumstances, the court does not believe that any reasonable jury could find that plaintiff's complaint sufficiently conveyed plaintiff's reasonable concerns that the defendant had acted or was acting in an unlawful discriminatory manner. Accordingly, plaintiff has not shown that he engaged in protected opposition to discrimination.
Even if the court found that plaintiff had engaged in "protected opposition" and that plaintiff would establish a prima facie case of retaliation, we believe that the defendant is still entitled to summary judgment on plaintiff's retaliation claim. The defendant has provided a legitimate reason for plaintiff's termination, and plaintiff has failed to establish that the defendant's reasons are pretextual. See Anderson v. Coors Brewing Company, 181 F.3d 1171, 1180 (10th Cir. 1999) (even assuming time between plaintiff's termination and the filing of her EEOC charge is sufficient to establish causal connection for purposes of prima facie case of retaliation, plaintiff could not overcome defendant's proffered reason for terminating plaintiff's employment). As the Tenth Circuit has consistently emphasized, a plaintiff may show pretext by demonstrating "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 and hence infer that the employer did not act for the asserted non-discriminatory reasons." See, e.g., id. at 1179 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). Mere conjecture that the employer's explanation is pretext is insufficient to defeat summary judgment. Id. For the reasons stated previously, the court finds that the evidence supports the defendant's position that the plaintiff was terminated for work performance errors. Plaintiff has failed to come forward with sufficient evidence to demonstrate that the proffered reason was pretextual for discrimination. Accordingly, the court must grant summary judgment to the defendant on this claim as well.
In sum, the evidence in the record, when viewed in the light most favorable to the plaintiff, does not support a reasonable conclusion that Safeway discriminated or retaliated against plaintiff. Accordingly, the court finds that Safeway is entitled to summary judgment on plaintiff's discrimination and retaliation claims.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. #32) be hereby granted. Judgment shall be granted for the defendant and against the plaintiff on all claims.
IT IS SO ORDERED.