Opinion
Case No. 99-4134-JAR
July 10, 2002
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Blue Cross and Blue Shield of Kansas ("BCBS") filed a Motion for Summary Judgment (Doc. 61) on all of Plaintiff Katherline Baker's claims. Baker brought suit under Title VII of the Civil Rights Act of 1964 (Title VII) and the Kansas Act Against Discrimination (KAAD) alleging racial discrimination in the terms and conditions of employment, unlawful termination, and retaliation. Finding no genuine issues of material fact on any of Baker's claims, the Court concludes that BCBS's motion should be granted as a matter of law.
Factual Background
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Baker's case. Immaterial facts and facts not properly supported by the record are omitted.
Katherline Baker, who is African-American, began her employment with BCBS on February 17, 1997, as a Medicaid Customer Service Representative. Her job duties included receiving telephone, written, and face-to-face inquiries from Medicaid beneficiaries, providers, Social and Rehabilitation Services, and internal staff. BCBS required her to record each inquiry in an on-line program.
During Baker's employment, BCBS provided her with a notice detailing the company's performance expectations for her position. This notice included a notation that if she failed to perform up to expectations, a corrective action plan would be implemented. A corrective action plan is a progressive disciplinary policy that begins with a verbal counseling and escalates to a written counseling. If the employee continues to perform at an unsatisfactory level, an Unsatisfactory Performance Report is issued, stating that if the employee's performance falls into the unsatisfactory range again within the next six months, the employee will be placed on probation for three months. The next, and final, disciplinary step is termination.
BCBS claims Baker failed to meet certain company standards for accuracy. Because of Baker's poor performance, BCBS implemented its progressive disciplinary policy. The progressive disciplinary plan culminated in Baker's termination on November 3, 1999, for substandard accuracy.
Baker does not contest her failure to maintain an adequate accuracy level. However, she claims she was subject to strict standards for accuracy, while similarly situated non-minorities were just expected to "answer the phones and basically that was it." She maintains her co-workers were not subject to accuracy standards.
According to Baker, no performance standards were in effect during the period she was disciplined; the only standards she was aware of were implemented on a trial basis in November 1999 and were not effective until the following January. Baker claims she was fired for failing to meet standards that were not even effective until January 1, 2000, nearly two months after her November termination.
In addition to disparate treatment regarding performance standards, Baker also claims she was denied leave time and other similarly situated non-minorities were not.
Further, she contends upper management subjected her to nasty looks and snide remarks, verbal abuse, and micro-management in front of co-workers. Finally, Baker points to conversations with her immediate supervisors, who were also African American, in which they relayed comments from upper level management that management was tired of the supervisors hiring "all these blacks."
As a result of these events, Baker filed a charge of discrimination with the Kansas Human Rights Commission ("KHRC") on October 21, 1998. BCBS knew of the complaint shortly after it was filed. Baker alleges that in response to filing the complaint, BCBS continued to apply more stringent performance standards to Baker than to similarly situated non-minorities in an obvious attempt to eliminate her from the workplace. Baker contends that it was the application of disparate standards which ultimately led to her termination.
Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.
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).
Anderson, 477 U.S. at 248.
Id. at 251-52.
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. 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." The nonmoving party may not rest on its pleadings, but must set forth specific facts.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991).
Applied Genetics Intern., Inc, v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (quoting Celotex, 477 U.S. at 324).
Id.
The court determines "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." In making such a determination, the court should not weigh the evidence or credibility of witnesses. In determining whether any genuine issues of material fact exist, the court must construe the record liberally in favor of the party opposing the summary judgment motion. If an inference can be deduced from the facts that would allow the nonmovant to prevail, summary judgment is inappropriate.
Anderson, 477 U.S. at 251-52.
Travelers Ins. Co. v. Nixon, 1991 WL 33516, at *3 (D.Kan. Feb. 20, 1991).
McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988) (citation omitted).
A. Race Discrimination
Baker claims BCBS discriminated against her based on her race by subjecting her to different terms of employment and by unlawfully terminating her in violation of Title VII and the KAAD. Although not controlling, federal decisions applying Title VII are persuasive authority in construing KAAD claims because the statutory schemes are analogous. Hence, the Court will apply Title VII standards to the KAAD claims.
See Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477, 1479 (10th Cir. 1991); Ballou v. University of Kansas Medical Center, 871 F. Supp. 1384, 1391 (D.Kan. 1994).
See Carreno v. Local Union No. 226, Intern. Broth. of Elec. Workers, 1990 WL 159199, *4 n. 1 (D.Kan. Sept. 27, 1990).
To establish a case of intentional discrimination, Baker has two options: she may satisfy her burden of proof by offering direct evidence of discriminatory intent or, if the evidence is circumstantial, she may demonstrate such intent by following the McDonnell Douglas burden-shifting framework. 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.'" Baker has not come forward with any direct evidence of race discrimination so the McDonnell Douglas analysis controls.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997).
Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999) (internal citations omitted).
Under the McDonnell Douglas framework, Baker has the initial burden of establishing a prima facie case of discrimination. Once she establishes a prima facie case, the burden shifts to BCBS, who must offer a legitimate reason for the disparate treatment. Once BCBS has set forth a facially nondiscriminatory explanation for its conduct, the burden shifts back to Baker, who must establish "a genuine dispute of material fact as to whether [defendant's] proffered reason for the challenged action is pretextual." Baker can show pretext by demonstrating that discrimination was the real reason for the adverse action.
McDonnell Douglas, 411 U.S. at 802.
Id.
Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
Trujillo v. Univ. of Colo. Health Sciences Center, 157 F.3d 1211, 1215 (10th Cir. 1998).
1. Discrimination in Terms and Conditions of Employment
To establish a prima facie case of discrimination in terms of employment, Baker must show that 1) she is a member of a protected class, 2) she experienced an adverse employment action and 3) similarly situated non-minorities were treated differently. It is uncontroverted that, as an African American citizen, Baker is a member of a protected class. She also suffered an adverse employment action or a significant change in employment status; her employment was terminated. BCBS argues Baker failed to rely on termination in her pro se Complaint and, therefore, has suffered no adverse job action. However, references to Baker's termination appear in the Pre-trial Order and in her response to this summary judgment motion. In her response, Baker maintains that "plaintiff's . . . resultant termination was the result of unlawful discrimination in violation of Title VII." A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. When construing the facts in the light most favorable to Baker, the Court finds she did rely on her termination as an adverse employment action.Baker must also show that similarly situated non-minorities were treated differently. "Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance, evaluation and discipline." Baker contends she was treated differently in the following ways: 1) upper level management subjected her to nasty looks and snide remarks, verbal abuse and micro-management in front of her co-workers; 2) her supervisors repeated racially disparaging comments made by upper-level management; and 3) she was denied leave time. However, she has offered no evidence that similarly situated non-minorities were treated differently. Baker claims she alone was subject to disparate treatment, but she has not even provided the names of other similarly situated employees who were treated more favorably. In fact, she admits in her deposition that she does not even know how upper level management or her immediate supervisors treated other employees because she was only concerned with herself. Consequently, she has failed to establish a prima facie case.
Arambu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (quoting Wilson v. Utica Park Clinic, Inc., 76 F.3d 394 (10th Cir. 1996).
Baker also contends that she was subject to stricter performance standards than similarly situated non-minorities. According to Baker, she was expected to maintain an accuracy level of at least 92%, while co-workers were not subject to specific standards.
Baker points to an affidavit from Robin Stevenson, a non-minority who worked in the Medicaid Customer Service Unit, to show disparate treatment. Stevenson testified that to satisfactorily perform her job, she was just expected to "answer the phone calls and basically that was it." She further testified that she did not think it mattered if the calls were answered as quickly as possible. Baker maintains that this affidavit proves she was treated differently.
BCBS contends Baker and Stevenson are not similarly situated employees. Stevenson testified that she always met her accuracy standards, and the record is replete with evidence that Baker did not. Stevenson's testimony proves that the two employees were not similarly situated "in all material respects" as required to establish a prima facie case.
See Poore v. Rooks County, 34 F. Supp.2d 1275, 1279 (1999) (citations omitted).
Furthermore, even if the two were similarly situated, BCBS argues that Baker has distorted the record in an attempt to show disparate treatment. Two different sets of standards applied to Medicaid Customer Service Representatives: accuracy standards which were implemented in May 1999, and percent of performance standards which became effective on January 1, 2000. Baker was disciplined and eventually fired for failing to meet standards for accuracy, not percent of performance standards. When Stevenson testified that she did not think it mattered how fast calls were answered, she was referring to the not yet effective percent standards. The percent standards were based upon the number of calls answered and completed entries in the computer system, while the accuracy standards relied upon how many inquiries were processed correctly. BCBS properly points out that Stevenson's testimony is not evidence of disparate treatment, but rather shows that both she and Baker were subject to the same standards for accuracy. The only difference is that Stevenson met the standards and Baker did not. Because Baker has failed to show that similarly situated non-minorities were treated differently, she has not established a prima facie case of discrimination.
Baker also contends that Lesa Moore's affidavit provides evidence of a similarly situated employee's disparate treatment. While Moore qualified as a similarly situated employee, there is no evidence that she was subjected to different performance standards. Moore's testimony, like Stevenson's, referenced the percent standards, not the standards for accuracy. Baker's attempt to distort the record and blur the lines between accuracy and percent standards to avoid summary judgment fails.
2. Unlawful termination
Baker's unlawful termination claim is also fundamentally flawed. To establish a claim of unlawful termination, Baker must establish a prima facie case of discrimination including evidence that similarly situated non-minorities were treated differently. Baker again points to the Stevenson and Moore affidavits as evidence of disparate treatment regarding performance standards. As discussed above, Baker and Stevenson were not similarly situated in all material respects. More importantly, the affidavits show that all three employees were subject to the same accuracy standards. Baker has failed to establish a prima facie case and summary judgment will be granted on her unlawful termination claim.
Thomas, 111 F.3d at 1510.
B. Retaliatory Termination
The McDonnell Douglas burden-shifting formula also applies to retaliation claims. To establish a prima facie case of retaliation, Baker must show that 1) she engaged in protected opposition to discrimination; 2) she was subject to an adverse employment action; and 3) a causal connection exists between the protected activity and the adverse action. Specifically, BCBS contends Baker has not proven the necessary causal nexus.
Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
Baker can establish a causal connection by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." The temporal proximity between the protected activity and the retaliatory conduct must be very close or Baker must offer additional evidence to establish causation. For example, a one and one-half month period between the protected activity and the adverse action, may by itself, establish causation, but a three-month period, standing alone, is insufficient to establish causation. Baker argues a causal connection exists because BCBS began to apply disparate standards to her within 30 days of the administrative closure of her KHRC charge.
Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied 459 U.S. 1071 (1982).
O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
Baker confuses the filing of the KHRC complaint with its dismissal. It is the filing of the complaint, not the agency's decision to close a file, that constitutes a protected activity.
See Land v. Midwest Office Technology, Inc., 114 F. Supp.2d 1121, 1140 (D. Kan 2000) (stating that the filing of a KHRC claim constitutes a protected activity for the purposes of a retaliation claim); see also, O'Neal, 237 F.3d at 1253 (10th Cir. 2001) (finding that plaintiff's filing of a EEOC claim constitutes a protected activity).
Baker filed her KHRC complaint in October 1998, but claims she began suffering an adverse job action in June 1999, almost eight months after she filed the complaint. An eight-month lapse is not enough to justify an inference of causation. Because Baker has not offered any additional evidence to establish causation, she has failed to establish a prima facie case.
Assuming arguendo Baker could establish a causal connection, her reliance on disparate treatment as a basis for the adverse employment action is flawed. No evidence exists that BCBS began to apply different standards to Baker in an obvious attempt to eliminate her from its workplace. In fact, the evidence indicates that Baker was subject to the same standards as both Moore and Stevenson, two similarly situated non-minorities, which Baker claims received more favorable treatment.
Even if Baker could prove a causal nexus between the protected activity and the adverse action, her claim would still fail because BCBS has legitimate non-discriminatory reasons for its actions. Baker never controverts BCBS' claim that she was consistently performing below average and failed to meet standards for accuracy. Her accuracy rating was around 90% at and prior to her termination, when standards implemented in May 1999 required a 92% minimum accuracy level. Due to Baker's poor job performance, BCBS legitimately followed a progressive disciplinary plan which ultimately led to her termination.
BCBS followed standard company policy and counseled Baker many times about her unsatisfactory performance. On April 18, 1997, Baker's supervisor spoke with her about her unsatisfactory performance. She was offered training to improve her efficiency, which she refused. On November 24, 1998, BCBS again counseled Baker for substandard performance. Baker's supervisor met with her on December 17, 1998, to answer her questions and help her with her job duties.
BCBS implemented quality performance standards on May 1, 1999. The standards rated each employee's level of accuracy and provided for a progressive disciplinary procedure for unsatisfactory performance. Baker failed to meet the accuracy standards and received a poor review on May 21, 1999. On July 13, 1999, Baker was placed on probation for three months after being counseled about her accuracy level and consistent poor performance. For a short time, her accuracy improved; however, in August 1999 performance problems began to recur. On September 2, 1999, Baker received a Notice of Unsatisfactory Performance Conduct, was urged to seek additional training, and put on probation for six months. During the probationary period, BCBS' progressive disciplinary policy required Baker to receive a satisfactory rating. On October 6, 2001, Baker received a second Notice of Unsatisfactory Performance Conduct and was advised that, if her performance fell into the unsatisfactory range again within the following three months, she would be terminated. Finally, on November 3, 2001, BCBS terminated Baker for poor performance.
Based on BCBS's numerous warnings to Baker and her consistent unsatisfactory performance, BCBS clearly had legitimate, non-discriminatory reasons for its actions. BCBS followed its company discipline policy and offered Baker training and counseling before her termination. Baker has not come forward with any evidence suggesting her firing was pretextual. Since Baker has clearly failed her burden of establishing both a prima facie case and establishing pretext, summary judgment must be granted on her retaliation claim.
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion for Summary Judgment (Doc. 61) on all Plaintiff's claims is GRANTED.
IT IS SO ORDERED