Opinion
Case No. 98-4215-RDR.
May 11, 2001
MEMORANDUM AND ORDER
This is a Title VII action alleging race and sex discrimination in the termination of plaintiff's employment with the defendant corporation following a burglary at the store where plaintiff worked. This case is now before the court upon a long-pending motion for summary judgment.
The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993):
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 judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L.Ed.2d 538, 106 S.Ct. 1348 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).
The analytical framework for a wrongful termination claim in a Title VII action was also reviewed in the same case. The court stated that after a plaintiff has demonstrated a prima facie case: the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the decision which adversely affected the employee. McDonnell Douglas, 411 U.S. at 802. Once the defendant has set forth a facially nondiscriminatory reason for the decision, the "factual inquiry proceeds to a new level of specificity." Burdine, 450 U.S. at 255. The plaintiff assumes the burden to prove that the employment decision was the result of intentional discrimination based on an impermissible motive. Burdine, 450 U.S. at 256. The plaintiff can prevail either directly by proving that the employer acted with a discriminatory motive or indirectly by showing that the stated reason for the discharge was a "pretext for the sort of discrimination prohibited by [Title VII]." St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2752 n. 6 (1993) (quoting McDonnell Douglas, 411 U.S. at 804); E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316-17 (10th Cir. 1992)).
In this case, defendant asks for summary judgment for two reasons: first, because plaintiff has not presented a prima facie case of race or sex discrimination; and second, because plaintiff has not introduced evidence sufficient to create a genuine issue of fact as to defendant's nondiscriminatory reason for terminating plaintiff's employment.
The uncontroverted facts in this case appear to be as follows. Plaintiff, an African-American male, was hired as an assistant manager of a Dollar General store in Topeka, Kansas on November 4, 1996. David Pierce, also an African-American male, was the manager of the store.
As assistant manager, plaintiff was obliged to perform the store manager's functions when the store manager was absent. Mr. Pierce was absent during the weekend of May 30, 1997. Plaintiff was the highest ranking person at the store at that time.
Plaintiff did not make a bank deposit of store proceeds on Saturday May 31 or Sunday, June 1, 1997. This was contrary to corporate policy, but may have followed the custom developed for store where plaintiff worked. Plaintiff claims he asked Trish Milroy, a white female subordinate employee, to lock and bar the back door of the store on Sunday, June 1, 1997 when the store was closing. But, plaintiff did not check to confirm that Milroy followed his order before he left the store. Failure to lock and bar the back door was a violation of company policy and constituted a failure to protect the company's assets.
Between the time the store closed on Sunday and the time the store reopened on Monday, June 2, 1997, someone entered the store and stole approximately $6,000.00. The back door was found ajar and unlocked. There were no signs of a forced entry, although a rock had been thrown through the front door leaving a hole too small for entry or for opening the front door.
Ray Thompson, a regional development manager for the defendant, investigated the burglary. He was told the local police believed the break-in was an "inside job." Thompson interviewed the employees of the store, including plaintiff. Plaintiff admitted to Thompson that he did not bar the back door of the store. Plaintiff also admitted that he had a friend in the store after closing, contrary to company policy.
Thompson, after discussions with defendant's regional human resource manager, Dan Haynes, suspended plaintiff on June 2, 1997. On September 25, 1997, plaintiff was terminated by defendant's district manager, Jack Dutton, again after discussions with Haynes. The cause of discharge was listed as: "failure to protect company assets;" not making weekend bank deposits per policy; and not securing the store upon closing. Plaintiff contends these reasons are pretextual.
On June 25, 1997, Dutton suspended Cheryl (Robinson) Souders, a white female assistant manager at a different store in Topeka pending an investigation of missing deposits amounting to $6,152.24. Ms. Souders was fired as a result of the investigation on July 2, 1997. On May 19, 1997, Mr. Dutton suspended Christine Ballew, another white female assistant manager at a different store in Topeka, for mishandling company funds. Mr. Dutton ultimately directed that Ms. Ballew be fired, but she left her employment voluntarily on June 13, 1997.
During the company investigation of the burglary at plaintiff's store, Mr. Thompson asked plaintiff where the stolen money was. Plaintiff was the only employee suspended as a result of the burglary. The decision to terminate plaintiff was not made by Mr. Thompson.
The burglary occurred Sunday night on June 1, 1997, when plaintiff was responsible for closing the store. Trish Milroy was not disciplined for failing to lock the back door as instructed by plaintiff on that night. Plaintiff has stated in an affidavit that he later called the store and spoke to Milroy, who told him she had been promoted to assistant manager following plaintiff's suspension. Milroy quit her employment with defendant in December 1997.
Plaintiff had a good performance record prior to his termination. He had not previously been accused of theft or stealing. Plaintiff offered to take a polygraph regarding the burglary but was told it would not be necessary.
Prior to the burglary, plaintiff had been told not to make deposits on Saturday and Sunday or at night and instead to put the money in a hiding place in the store. Plaintiff objected to this policy because he felt too many employees, present and past, knew about the hiding place.
Ray Thompson and Dan Haynes have stated in affidavits that plaintiff would have been suspended and terminated solely on the grounds that the store was not locked and secured at closing, regardless of whether the deposits were made or not made on the weekend of the burglary.
Prima facie case
Defendant's first argument for summary judgment is that plaintiff has failed to set forth a prima facie case of race or sex discrimination. This argument is easily disproved as to the race discrimination claim. Since the relevant pleadings were filed in this matter, the Tenth Circuit has clarified the elements of a prima facie case alleging a discriminatory discharge. The elements are: 1) that the plaintiff belongs to a protected class; 2) he was qualified for his job; 3) despite his qualifications he was discharged; and 4) the job was not eliminated after his discharge. Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1229 (10th Cir. 2000). These elements appear to be admitted with regard to plaintiff's claim of race discrimination.
As to sex discrimination, since plaintiff is male he is considered to have brought a reverse discrimination claim. The prima facie elements are different in this context. Notari v. Denver Water Dept., 971 F.2d 585, 589 (10th Cir. 1992). A presumption of discrimination in the reverse discrimination context arises only "when the requisite background circumstances exist." Id. Whether such circumstances have been established in this case shall be discussed in connection with defendant's next contention, i.e., that defendant had a legitimate nondiscriminatory reason for discharging plaintiff which plaintiff cannot prove to be pretextual.
Pretext
If a plaintiff who has demonstrated a prima facie case of discrimination can present evidence that a defendant's proffered reason for termination is not worthy of belief, in other words pretextual, then plaintiff can defeat a motion for summary judgment. Kendrick, 220 F.3d at 1230. One means of presenting evidence of pretext is to demonstrate disparate treatment of similarly situated employees who violated work rules of comparable seriousness. Id. at 1232. This is the means advocated by plaintiff in this case.
An employee is similarly situated to the plaintiff if the employee deals with the same supervisor and is subject to the "same standards governing performance evaluation and discipline." "A court should also compare the relevant employment circumstances, such as work history and company policies, applicable to the plaintiff and the intended comparable employees in determining whether they are similarly situated."
Id., quoting Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). In disciplinary matters, supervisors are normally not deemed similarly situated to the persons they are supervising. Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). "Differences in treatment that are trivial or accidental or explained by a nondiscriminatory motive will not sustain a claim of pretext." Kendrick, 220 F.3d at 1230.
In the instant case, plaintiff asserts that other employees who were females and Caucasian were treated more leniently by defendant in situations involving mishandling company funds and failing to protect company assets. Plaintiff cites the following examples: Elaine (Cowell) Tunnell, a Caucasian female assistant manager did not make a deposit for two days in a row and was disciplined with written counseling; Christine Ballew, a Caucasian female assistant manager was given written counseling after her cash register came up short of money and, ten days later, was approved for a promotion to temporary manager; Cheryl (Robinson) Souders, a Caucasian female assistant manager received written counseling after she left her keys in the register and it came up short of money; and Trish Milroy, as mentioned before, was not disciplined in the incident causing plaintiff's discharge and later was not disciplined when she did not make timely bank deposits. Plaintiff further asserts that Souders and Tunnell also had poor attendance problems.
Defendant denies that any of these persons are similarly situated to plaintiff. The court agrees. None of the persons mentioned, other than Milroy, failed to secure the store doors at closing. This is different than a cash register shortage. While Milroy did not receive discipline, she was not similarly situated to plaintiff. Plaintiff was the supervisor in charge of the store. Milroy was not a supervisor; she was not an assistant manager; and she was not in charge of the store about the time of the burglary. Moreover, of the other employees alleged to be similarly situated, only Milroy and Robinson were responsible for a financial loss of thousands of dollars; Robinson was fired for her misconduct and Milroy was not in charge of the store. Ballew was suspended and her supervisor was instructed to discharge her after the loss of company assets at her store. She resigned not long after her suspension. Finally, Tunnell's problems as an assistant manager did not involve a loss of company assets or a failure to secure the store. While the failure to make a bank deposit was listed as a reason for plaintiff's termination, it is not disputed that the failure to secure the store leading to a loss of a substantial amount of money was an independent reason for plaintiff's discharge. This distinguishes plaintiff from Tunnell.
In sum, we do not believe a reasonable jury would decide that defendant's proffered nondiscriminatory reasons for discharging plaintiff were false because other similarly situated Caucasian or female employees were treated differently. On review, we find no other persuasive argument for finding that the reasons for plaintiff's discharge were a pretext for discrimination.
Therefore, the court shall grant defendant's motion for summary judgment.
IT IS SO ORDERED.