Summary
rejecting plaintiff's race discrimination claim stemming in part from supervisor's decision to call police when plaintiff refused requests to leave a control tower, holding that the plaintiff did not establish a prima facie case in that he "failed to show . . . that similarly situated non-minority employees have been or would have been treated differently"
Summary of this case from Henderson v. International UnionOpinion
Civil Action No. 99-2467-CM.
July 31, 2000.
Robert B. Van Cleave, OVerland Park, KS, for Vistor Hall, plaintiff.
Lynn W. Hursh and Jull Allison Morris, Armstrong Teasdale, LLP, Kansas City, MO; Daniel K. O'Toole, Armstrong Teasdale, LLP, St. Louis, MO, for United Parcel Service and Gary Watkins, defendants.
MEMORANDUM AND ORDER
Plaintiff Victor Hall was an employee of defendant United Parcel Service (UPS). Plaintiff in this case claims that UPS discriminated against him on the basis of his race in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-1et seq., 42 U.S.C. § 1981, and the Kansas Act Against Discrimination (KAAD), Kan. Stat. Ann. § 44-1001 et seq. Plaintiff also asserts a claim against UPS and his former supervisor, Gary Watkins, for false arrest and malicious prosecution. This matter is before the court on plaintiff's motion to amend the pretrial order (Doc. 105), defendants' motion for summary judgment (Doc. 110), and defendant's motion to strike portions of plaintiff's brief in opposition to defendant's motion for summary judgment (Doc. 132).
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
Plaintiff, a black male, began his employment with UPS in May 1995 at its facility in Lenexa, Kansas. Gary Watkins was plaintiff's supervisor. Plaintiff worked the night shift and would frequently double shift, working the twilight shift in addition to the night shift.
In order to work a double shift, employees would have to sign up the week before indicating the days that they wished to double shift. Then, each day the following week, the employees who were going to be called to work a double shift were put on a call list. The union steward would then call those employees to make sure the employee was available to work. Employees who had signed up to work the double shift understood that they may be assigned to whatever position UPS needed to fill.
Selection to work the double shift was generally based on seniority. Plaintiff, however, testified that seniority was not considered when UPS was shorthanded and needed everyone who had signed up to work. UPS had a policy whereby an employee who had not been called to work a double shift was generally not allowed to work.
Tardy Incident
On June 1, 1998, plaintiff received a call to work the double shift. Plaintiff claims he had very little notice and, as a result, came into work 45 minutes late. Defendant Watkins told plaintiff that he was sending him home for that shift and later reprimanded plaintiff in writing for being late. Watkins did not make any racial statements to plaintiff during their conversation.
Double Shift Incident
On June 4, 1998, plaintiff and a Hispanic co-employee, Winston Moulder, arrived at the UPS facility to work a double shift even though they had not been called. Another employee, a white male, also showed up to work the double shift despite not having been called. The supervisor took the names of the three individuals and, plaintiff presumes, delivered the list of names to Watkins. The supervisor came back with word that plaintiff and Mr. Moulder could not work but that the other employee could work. Plaintiff only "vaguely" saw the other employee and could not identify him at the time. Plaintiff later spoke to Watkins about the incident. Watkins explained that he did not see the names of the individuals and was not aware of the identity of the person who got to work the shift.
In early May 1998, UPS was letting employees work the double shift who were not on the sign-up sheet or call list. The union apparently filed a grievance in mid-May and, after that, UPS began following the call policy, meaning that only employees who had previously signed up to work that shift and who were put on the call list could work . Plaintiff was aware in June 1998 that UPS was following the call policy.
The record reflects that plaintiff never filed a written grievance concerning the June 4th incident. Plaintiff testified in deposition that, in fact, he did not generate a written grievance but instead only orally complained of discrimination. Watkins testified that he knew there was a grievance somewhere along the line. After an investigation, neither the union nor UPS could substantiate plaintiff's claims.
Plaintiff learned in September 1998 that the employee who was allowed to double shift that day was Steve Hillbrandt. Mr. Hillbrandt had seniority over plaintiff and Mr. Moulder: Mr. Hillbrandt's date of hire was November, 11 1993; Mr. Moulder's date of hire was August 17, 1995, and plaintiff's date of hire was May 17, 1995.
Double Shift Work Assignments
From June 4, 1998 until July 14, 1998, plaintiff was predominantly assigned work on the load belts (as opposed to the unload belts) while double shifting. Prior to June 4, plaintiff had never been required to work on the load belts. White males also worked the load belts, and black and Hispanic males worked on the unload belts while plaintiff worked the load belts. Plaintiff claims he did not like working the load belts because he claims he was not trained to work the load belts and because he wanted to develop consistency in the unload as opposed to the load, or vice versa. At some point in June, plaintiff asked if he could work on the unload belts. His request was denied. Other than that question, plaintiff never asked anyone why he was working the load belts. At one point, plaintiff's supervisor Jim Kanorr told plaintiff that he was doing a great job loading.
Various Incidents
Sometime in 1996, plaintiff heard a supervisor make an "off the cuff" comment to the effect that "I'm just doing my part of keeping you down," which plaintiff has described as a Nick Nolte phrase from the movie "48 Hours." Although plaintiff felt that the statement was racially motivated, he was not overly concerned, nor did he make any complaint regarding the statement.
In May 1998, plaintiff testified that he was walking into the UPS facility with three Hispanic males, when a supervisor stated, "Here comes a Mexican combination platter." Plaintiff did not make a complaint to anyone about the comment, nor does he know of anyone else who complained. Bobby Morales, one of the Hispanic employees about whom the comment was made, testified that the he thought the supervisor meant the statement jokingly. Plaintiff, however, considered the statement a racial epithet against an African-American based on the concept that a Mexican plate has "light brown beans, dark brown beans with rice," and his view that he and the others "represent an earth tone color pattern." On August 5, 1998, a supervisor made a comment to a group of workers, including plaintiff and a white (Italian) union steward "and any other ears around" to the effect that "you guys don't use your brains. You guys are stupid and you guys all work the same."
On August 9, 1998, while plaintiff was working the unload, the supervisor was asked on the radio if he needed more help. The supervisor responded, "No, I'm pretty good here. I got all hosses. I got a boy in this door and two boys in this door and I got a boy in that door." Plaintiff considered this statement racially insulting. The statement was made regarding four individuals, two of whom were white, one of whom was black (plaintiff), and one of whom whose race is unknown.
In deposition, one UPS employee testified that she witnessed an incident where two black women received phones calls, and the supervisor gave them telephone messages. Then, when a white girl received a telephone call, she was allowed to talk. Plaintiff never testified that he was aware of a practice allowing personal phone calls to certain individuals. In deposition, another UPS employee testified that he witnessed a black mannequin tied to a train and being dragged through the building. Plaintiff never testified that he was aware of a mannequin being dragged through the facility.
Finally, plaintiff testified that he observed Watkins on a catwalk watching himself and a co-worker unload. Plaintiff stated that this incident of surveillance made him feel very uncomfortable. In addition, plaintiff testified that he observed Watkins hiding in package cars watching a white worker.
Tower Incident
On October 12, 1998, plaintiff reported to the UPS facility to work the twilight shift and was directed to work the unload belt under the supervision of Chris Jones. About fifteen minutes into the shift, plaintiff was directed to drive the irregular trains, which plaintiff regularly drives during his usual job on the night shift. Plaintiff objected to this work assignment on the grounds that he wanted to stay in the unload to develop consistency. The irregular train supervisor told plaintiff that he was asking that plaintiff drive the irregular train and needed him to do so. Plaintiff proceeded to the control tower to discuss the issue with Watkins. Plaintiff asked Mr. Moulder to accompany him to the tower.
The two arrived at the tower, and plaintiff received permission to talk to Watkins. Plaintiff asked if they could go somewhere more formal to talk, and Watkins replied, "I don't have time for your bullshit." Plaintiff stated that he had a right to question Watkins about a job assignment, and Watkins stated, "I don't give a damn about your rights, and if you don't leave now, I'm going to have you removed." Plaintiff testified that he knew he could leave the tower at any time and that, during the exchange, he told Watkins three different times that if Watkins was busy, he would go home and talk to him later. Plaintiff, however, also testified that he was unwilling to leave the tower without a union steward being present. In any event, when plaintiff would not leave, Watkins called the police.
When the Lenexa police arrived, Watkins left the tower to go to the gate to meet the police. Watkins told the officers that plaintiff was being disruptive, that plaintiff had been asked to leave on several occasions but would not, and that Watkins wanted plaintiff escorted off the property. Watkins also told the officers that he suspected plaintiff was under the influence of something. The officers proceeded to the tower and stated, "Mr. Hall, your employer asked you to leave the building. Are you going to leave the building?"
Plaintiff testified that he responded, "Yes, I told Gary on three occasions I was willing to leave." Yet in an affidavit, one of the Lenexa police officers present at the scene stated that he personally asked plaintiff five times to leave the premises, but plaintiff refused. In any event, the police surrounded plaintiff and placed him in handcuffs. The officers took plaintiff to the police car where plaintiff saw Watkins. Plaintiff raised his voice and yelled, "Gary, you fucked up, you had me arrested. And I already had filed an EEOC complaint." Plaintiff was taken by the Lenexa police to the county jail where he was released on $100 bond posted the next morning by his wife.
Plaintiff later filed a grievance concerning the tower incident. The grievance was subsequently dismissed after being deadlocked at the local level. Plaintiff was aware that Watkins had called police before on white employees about issues of theft.
The Prosecution
The city prosecutor filed a formal complaint with the Lenexa Municipal Court charging plaintiff with criminal trespass. Watkins signed the complaint. Plaintiff asserts that the criminal complaint was "issued" by Watkins. Yet, the assistant city attorney testified that, once a complaint is signed by a private citizen, it becomes the possession of the city and the prosecutor has complete discretion whether to proceed with the case. The assistant city attorney further testified that, in this case, once Watkins signed the complaint, the city had complete and independent prosecutorial discretion and chose to pursue the criminal trespass action against plaintiff.
Initially, a municipal judge ordered plaintiff to refrain from entering UPS's property. The order was modified a month later, and plaintiff returned to work. When the case was finally tried, Watkins was requested by the city attorney to appear as a witness and testify. The court found plaintiff not guilty.
EEOC Complaint
Plaintiff told Watkins as plaintiff was being arrested that plaintiff had already filed an EEOC complaint. Plaintiff asserts in his statement of facts that he had filed an EEOC complaint in September 1998 on the June 4th incident when he finally found out Mr. Hillbrandt's name. Plaintiff then cites to his own deposition testimony. The citation to which plaintiff directs the court does not support plaintiff's assertion that he filed an EEOC complaint in September; nowhere in that cited portion did plaintiff even mention the filing of an EEOC complaint. However, upon the court's further review of plaintiff's deposition testimony that is part of the record, the court discovered that plaintiff testified that he had filed a complaint with the EEOC sometime in September, that he called the EEOC from his jail cell after his arrest and asked the EEOC to activate the complaint, and that he filed a complaint with the Kansas Human Rights Commission (KHRC) after his arrest. Defendants point out that plaintiff has not produced a copy of any such September 1998 filing.
Plaintiff further contends in his statement of facts that he received a letter from the EEOC stating that it had received his complaint and that he knew that the EEOC sent duplicate forms to the employer, so he assumed that Watkins already knew of the complaint. Defendants assert that they are not aware of ever receiving notice of any such charges and that plaintiff's statement that he "assumed" Watkins had knowledge of the charge at the time of plaintiff's arrest is purely conjecture. Plaintiff admits that, prior to his arrest, he never mentioned any alleged EEOC complaint to Watkins. After his arrest, plaintiff filed a complaint with the KHRC.
Plaintiff's Termination
On March 22, 2000, plaintiff was involved in an altercation with a white coworker. Plaintiff had corrected the coworker's loading, so the coworker became enraged. The coworker began yelling at plaintiff, and the two ended up in a physical confrontation. There is testimony that a UPS supervisor was standing close by but never tried to get between the two fighting men. Plaintiff was suspended and later terminated as a result of this incident.
II. Motion to Amend and Motion to Strike Portions of Plaintiff's Brief
Plaintiff seeks to amend the pretrial order to include additional damages resulting from plaintiff's recent termination. In his response to this summary judgment motion, plaintiff claims that he would have been reinstated had it not been for the instant lawsuit he filed. Thus, the court construes plaintiff's allegations as a claim for retaliation, the merits of which will be discussed later in this opinion. For purposes of this opinion, the court will consider those facts alleged by plaintiff that form the basis of plaintiff's request for additional damages. Thereafter, the court will rule accordingly on plaintiff's motion to amend. As such, the court denies defendant's motion to strike those portions of plaintiff's brief that raise the issue of plaintiff's termination.
III. Summary Judgment
A. Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. See id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. See Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
B. Discussion
1. Race Discrimination
Plaintiff claims that UPS discriminated against him in violation of Title VII, KAAD, and 42 U.S.C. § 1981. The court applies the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas framework, in order to survive summary judgment, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff carries that burden, the defendant must then articulate a facially nondiscriminatory reason for the challenged employment action. If the defendant makes such a showing, the burden reverts to the plaintiff to prove the proffered nondiscriminatory reason is pretextual.
The elements of a prima facie case vary somewhat according to the plaintiff's precise allegations. For plaintiff's first claim of racial discrimination, he must show that 1) he is a member of a protected class; 2) his job performance is satisfactory; 3) adverse action was taken against him by defendant's employment decisions; and 4) similarly situated non-minority employees were treated differently. See Martin v. Nannie The Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir. 1993).
With respect to the various incidents that plaintiff claims were discriminatory, plaintiff fails to set forth evidence that similarly situated non-minority employees were treated differently. For instance, the comments "[Y]ou guys don't use your brains. You guys are stupid and you guys all work the same," and "No, I'm pretty good here. I got all hosses. I got a boy in this door and two boys in this door and I got a boy in that door," were made to groups of employees that included white employees. Moreover, the "Mexican combination platter" was made to a group that included Hispanic employees, not just black employees.
Regarding the incident when plaintiff was sent home for arriving late to a double shift, plaintiff acknowledges that Watkins made no inappropriate comments on this or any other occasion. More importantly, plaintiff offers no evidence that he was treated any differently in this regard than similarly situated white employees who arrived to work late.
Plaintiff also fails to establish a prima facie case of discrimination regarding his assignment to the load belt while double shifting. Plaintiff has failed to show any adverse employment action because plaintiff admits that he could receive any assignment as a double shifter and that UPS has no policy allowing double shift employees to remain with the same supervisor for consistency. Additionally, there is no evidence that similarly situated non-minority employees were treated differently. To the contrary, plaintiff admits that white employees also worked the load area and that minorities worked the unload area.
Nor does plaintiff's complaint, that Watkins was secretly observing him working, constitute adverse employment action. See Sharon v. Yellow Freight Sys., Inc., 872 F. Supp. 839, 847 (D. Kan. 1994),aff'd, 107 F.3d 21 (10th Cir. 1997) (holding that the mere fact that a supervisor kept track of plaintiff's arrival times does not constitute adverse employment action). Further, plaintiff has failed to establish that similarly situated white employees are treated differently. In fact, plaintiff testified that he also saw Watkins observing a white employee while she worked.
Plaintiff has also failed to establish a prima facie case of discrimination regarding the tower incident. Plaintiff complains he was arrested after going to the tower to discuss a change in his work assignment. There exists evidence in the record that plaintiff refused to leave the tower (even though plaintiff told Watkins that he would leave), thereby causing a disruption, so Watkins called the police. Plaintiff has failed to show this court that similarly situated non-minority employees have been or would have been treated differently. Indeed, plaintiff admits that UPS calls the police on its white employees.
With regard to the incident when plaintiff was not allowed to work the double shift, the court finds that plaintiff has established a prima facie case. The burden thus shifts to the defendant to articulate a nondiscriminatory reason for the selection of Mr. Hillbrandt, a white employee. It is undisputed that selection to work the double shift was based on seniority unless, according to plaintiff, UPS was shorthanded. There is no evidence in the record that UPS was shorthanded that day. Further undisputed is the fact that Mr. Hillbrandt had seniority over plaintiff. The defendant having articulated a legitimate, nondiscriminatory reason for the selection of Mr. Hillbrandt, the burden reverts back to plaintiff to present evidence of pretext. Plaintiff fails to bring forth any evidence that the defendant's articulated reason for Mr. Hillbrandt's selection is not worthy of belief, and there exists no evidence in the record to suggest that plaintiff was not selected for the shift on the basis of his race. Having failed to present any evidence of pretext, this claim fails.
Viewed separately or taking plaintiff's allegations together, the court finds that plaintiff has failed to present evidence to support a genuine factual issue regarding racial discrimination. Defendant is, therefore, entitled to summary judgment on this claim.
2. Racial Harassment
To survive summary judgment on racial harassment claim, plaintiff must show that "the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment . . . and the harassment was racial or stemmed from racial animus." See Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Thus, to constitute an actionable claim for hostile work environment, a plaintiff must be subjected to a "steady barrage of opprobrious racial comments;" a few isolated incidents of racial enmity or sporadic racial slurs is insufficient. See id.
In this case, plaintiff's allegations, even if taken as true for purposes of this motion and viewed in the light most favorable to plaintiff, fall far short of this standard. The comments and jokes plaintiff heard are insufficient as a matter of law to establish a claim for hostile work environment because plaintiff has failed to set forth facts showing that racial comments were pervasive or severe. Rather, plaintiff's evidence consists of isolated, non-threatening remarks. As such, plaintiff's claim is not actionable. See id. (granting summary judgment to defendant where plaintiff subjected to infrequent racial jokes and slurs). Moreover, some of the remarks were made to groups that included both white and black employees, while other remarks cannot be considered, despite plaintiff's strained interpretation, racially motivated.
Plaintiff also asserts that there was discrimination in the allowance of whites making personal telephone calls and in the black mannequin incident. The court notes that those incidents were not directed to plaintiff, not witnessed by plaintiff, and, assuming those incidents to have occurred, there is no evidence that plaintiff was even aware of those incidents at the time he filed this claim. Indeed, plaintiff never mentioned the incidents during his deposition. Rather, it was only in later depositions that one witness testified about the phone calls and another witness testified about the black mannequin incident. In establishing a claim for racial harassment, plaintiff may only rely on evidence relating to harassment of which he was aware during the time that he was allegedly subject to a hostile work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Thus, plaintiff may establish the existence of a material fact as to a hostile work environment claim based on evidence of harassment towards others only if plaintiff was aware of such conduct. See Hirase-Doi v. United States W. Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995). In this case, there exists no evidence in the record that plaintiff was aware of such conduct until after the two witnesses were deposed.
In sum, plaintiff has failed to put forth evidence sufficient to survive summary judgment on his claim for racial harassment. Plaintiff relies on a very few isolated incidents, some of which do not appear to be race related, and others of which he was not even aware of at the time. Viewing these incidents in the totality of the circumstances, summary judgment for defendant is appropriate on this claim.
3. Retaliation
To establish a prima facie case of retaliation, plaintiff must show that: (1) he engaged in protected opposition to discrimination; (2) defendant subjected him to an adverse employment action subsequent to the protected activity; and (3) a causal connection exists between the protected activity and the adverse employment action. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). Once plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. If defendant presents evidence of a legitimate business reason, the plaintiff must then be allowed to demonstrate that the defendant's offered reasons are a mere pretext for discrimination. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996).
Plaintiff has failed in his memorandum to set forth those incidents which he claims were retaliatory. Plaintiff merely states that the June 4th incident "began a series of episodes which jeopardized the terms and conditions of plaintiff's employment." Plaintiff, however, did not delineate the "episodes" of retaliation. The court will, therefore, address the only two incidents which plaintiff has tied to his claim of retaliation: the tower incident, where plaintiff yelled to Watkins that he had already filed an EEOC complaint, and his termination, as plaintiff alleges in his statement of facts that he would have been reinstated had he not filed the instant lawsuit.
a. The Tower Incident
The court finds that plaintiff has failed established a prima facie case of retaliation with regard to the tower incident. Plaintiff testified that he had filed a complaint with the EEOC on the June 4th incident, yet plaintiff has failed to produce a copy of the complaint. In any event, viewing the evidence in the light most favorable to plaintiff, the court will assume that plaintiff at least contacted, if not filed a compliant with, the EEOC in September 1998. But there is no evidence in the record that Watkins knew about an EEOC complaint. Without such knowledge, there can be no retaliatory intent.
However, Title VII also extends protection to those who use their employers' internal grievance procedures. See Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999). Plaintiff testified in deposition that he orally complained to UPS about the June 4th incident. And while plaintiff admits that no written grievance was ever filed, Watkins testified that he knew there was a grievance somewhere along the line. Thus, Watkins had knowledge that plaintiff had engaged in a protected activity. Detrimental to plaintiff's claim, though, is the fact that there is no evidence whatsoever of any causal connection between plaintiff's oral grievance and Watkins's notification of the police that resulted in plaintiff's arrest.
Even if plaintiff had established a prima facie case, the claim fails. UPS contends that the police were called to remove plaintiff from the tower after he was being disruptive to operations and had refused to leave. The court finds that UPS has articulated a legitimate, nondiscriminatory reason for the call to the police, and plaintiff has failed to put forth any evidence showing that UPS's articulated reason is not worthy of belief.
b. Plaintiff's Termination
Plaintiff became involved in an altercation with a co-employee. According to witness testimony, the two ended up in a physical confrontation after the co-worker began yelling at plaintiff. As a result, both plaintiff and the co-employee were terminated. To establish a prima facie case of retaliation, plaintiff must present evidence of causal connection between his filing of this lawsuit and his termination. Plaintiff has failed to establish a genuine issue of fact on this issue.
In support of his claim, plaintiff refers the court to the deposition testimony of Michael Savwoir. Plaintiff does not, however, disclose to the court who Mr. Savwoir is, nor does plaintiff include any part of Mr. Savwoir's deposition that could shed light on Mr. Savwoir's relationship to the litigants in this case. In any event, plaintiff cites to Mr. Savwoir's deposition for two propositions: 1) that the incident seemed to be a planned and orchestrated event by UPS to be able to terminate plaintiff and 2) that a management person had just said prior to the incident that it was known there was going to be a job open in the department where plaintiff worked.
Plaintiff's reliance on Mr. Savwoir's testimony to establish evidence that UPS planned and orchestrated the altercation is unfounded. Mr. Savwoir testified:
[Plaintiff] told me of the incident. I talked to him recently and he told me he's not — he's no longer employed with UPS. He'd been fired as a result of what seemed to be a planned and orchestrated event by corporate UPS to rid him of — to deny his work and to prevent his access to the workplace.
To the extent Mr. Savwoir was merely recounting what plaintiff had told him in their conversation, the court finds that the testimony is nothing more than a self-serving, conclusory statement of plaintiff, repeated by Mr. Savwoir, which is insufficient to withstand a motion for summary judgment. See Medina v. City County of Denver, 960 F.2d 1493, 1500 (10th Cir. 1992).
Mr. Savwoir also testified that he learned from another employee that the employee was told by a management person prior to plaintiff's termination that there was going to be a job available in that department. Yet Mr. Savwoir could not recall the name of the employee from whom he had heard this information. It is well settled in this circuit that the court can consider only admissible evidence in deciding a motion for summary judgment. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995). Thus, hearsay evidence not subject to an exception cannot be considered. See Thomas v. International Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995) (inadmissible hearsay will not defeat summary judgment). In this case, Mr. Savwoir's testimony constitutes inadmissible hearsay and, as such, will not be considered by this court.
To establish a causal connection, plaintiff is left with the testimony of Ralph Moulder, a witness to the altercation. Mr. Moulder testified that a UPS supervisor was standing at the scene and didn't do anything to break up the fight. Even viewing all reasonable inferences in the light most favorable to plaintiff, the court finds that such testimony is insufficient to establish a genuine issue of fact that a causal connection exists between plaintiff's lawsuit and his ultimate termination. Summary judgment is, therefore, appropriate on plaintiff's claim of retaliation.
4. False Arrest
Plaintiff contends that Watkins caused the arrest of plaintiff at the tower in October 1998 and is liable to plaintiff for false arrest. Under Kansas law, a plaintiff must show that he was unlawfully caused to be arrested by the defendant and, though it is not required that the arrest be directly ordered by the defendant, the defendant must have by some means either instigated it, assisted in it, or by some other means directed or encouraged it. See Thompson v. General Fin. Co., 205 Kan. 76, 88-89, 468 P.2d 269, 280 (1970). Having said that, one cannot be liable for false arrest where he merely states to a police officer his knowledge of a supposed offense and the officer makes the arrest after conducting an independent investigation of the situation prior to making the arrest. See Thurman v. Cundiff, 2 Kan. App.2d 406, 410, 580 P.2d 893, 898 (1978).
In this case, Watkins left the tower to meet the police officers when the officers arrived. Watkins had a conversation with the officers in which, according to Watkins, he told the officers that plaintiff was being disruptive, that plaintiff had been asked to leave on several occasions but would not, that he wanted plaintiff escorted off the property, and that he suspected plaintiff was under the influence of something. Thus, there is no dispute that Watkins instigated the arrest. However, the court finds that Watkins merely stated to the officers his knowledge of the situation.
There is a dispute in the record, however, regarding whether the officers conducted an independent investigation prior to making the arrest. According to plaintiff's testimony, he told the officers when asked that had he told Watkins he was willing to leave, but that the officers "did not break stride at all, [and that] they stared circling me and started breaking out the handcuffs." In conflict with plaintiff's testimony is that of one of the arresting officers, who stated by affidavit that he personally asked plaintiff five times to leave the premises, but that plaintiff refused. Thus, whether the officers independently investigated the situation, or whether they merely arrested plaintiff based on the information provided to them by Watkins, remains a material fact. Summary judgment on plaintiff's claim for false arrest is, therefore, denied.
5. Malicious Prosecution
Kansas law recognizes a cause of action for malicious prosecution arising out of a criminal proceeding. To maintain such an action, the plaintiff must prove: (1) that the defendant instituted, procured or continued the criminal proceeding of which the complaint is made, (2) that the defendant in so doing acted without probable cause and with malice, (3) that the proceeding terminated in favor of the plaintiff, and (4) that the plaintiff sustained damages. See Braun v. Pepper, 224 Kan. 56, 58, 578 P.2d 695, 698 (1978). In interpreting these elements, the court bears in mind that the cause of action has long been disfavored. See Allin v. Schuchmann, 886 F. Supp. 793, 797 (D. Kan. 1995).
In this case, Watkins signed the complaint. Under Kansas law, where a complaining witness makes a true and full disclosure to officials, and such officials prepare a complaint for the witness's signature, the complaining witness will not be liable for malicious prosecution. See Jones v. Zimmerman, 180 Kan. 701, 703, 308 P.2d 96, 97 (1957). Plaintiff fails to present a disputed issue as to what Watkins stated to police officers, and the court already has found that Watkins's statements to police officers merely recounted his knowledge of the situation. Based on Watkins's information, the officers prepared a complaint for his signature. Thus, Watkins cannot be liable for malicious prosecution as a result of his mere signing of the complaint.
Moreover, one who merely responds to requests for information or who testifies as a witness does not, by those acts, institute or continue a prosecution. See id. (citing Wittaker v. Duke, 473 F. Supp. 908, 910 (D.C.N.Y. 1979)). After Watkins signed the complaint, the city attorney had complete discretion in determining whether to proceed with the prosecution. Later, the city attorney requested Watkins' appearance as a witness at trial. There is no evidence that Watkins engaged in any other action that could result in liability, such as knowingly providing false information to the city attorney. See Wright v. Montgomery Ward Co., 814 F. Supp. 986, 990 (D. Kan. 1993). The court finds that Watkins's signing of the complaint and appearing at the city attorney's request as a witness at trial do not, as a matter of law, satisfy the first element of a malicious prosecution claim. Summary judgment is granted on this claim.
IV. Summary of Court's Ruling
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. 110) is granted in part and denied in part. Defendant's motion is granted with respect to plaintiff's claims of racial discrimination, racial harassment, retaliation, and malicious prosecution. Defendant's motion is denied with respect to plaintiff's claim of false arrest.
IT IS FURTHER ORDERED that defendant's motion to strike portions of plaintiff's brief (Doc. 132) is denied, and plaintiff's motion to amend the pretrial order (Doc. 105) is denied. The court has considered the claim which plaintiff seeks to add and has accordingly determined that the claim fails as a matter of law.