Opinion
Case No. 99-2423-JWL
October, 2000
MEMORANDUM AND ORDER
Plaintiff Theodore Hogan filed suit against defendant Colgate-Palmolive Company alleging that defendant retaliated against him in violation of 42 U.S.C. § 1981. Specifically, plaintiff claims that defendant, in retaliation for plaintiff's filing an EEOC charge and complaining to defendant's management about racial discrimination in the workplace, interfered with plaintiff's settlement of his claim against UNUM, a long-term disability insurance provider. This matter is presently before the court on defendant's motion for summary judgment (doc. #22). As set forth in more detail below, defendant's motion for summary judgment is granted and plaintiff's complaint is dismissed in its entirety.
I. Facts
The following facts are either uncontroverted or related in the light most favorable to plaintiff, the nonmoving party. Plaintiff was hired by defendant in 1982 as a production employee at defendant's plant in Kansas City, Kansas. According to plaintiff, beginning in 1989 and continuing through January 1993, plaintiff was subjected to a pattern of disparate disciplinary practices by his supervisors at the Kansas City plant. Specifically, plaintiff maintains that he was suspended for intimidating a foreman; he was denied permanent job assignments; he had his store privileges revoked; and he was criticized for the manner in which he parked his car in the company parking lot. Plaintiff further contends that, in January 1993, he was reprimanded for refusing to perform a white coworker's job duties but was also reprimanded for helping an African-American coworker perform her job duties. Plaintiff contends that his supervisors engaged in this conduct because plaintiff had complained to the company's president about race discrimination in the Kansas City plant.
Plaintiff provides no details with respect to the nature, timing, or number of complaints made to defendant's president.
On January 10, 1993, plaintiff left defendant's plant after a disagreement with his supervisors. Plaintiff never returned to work after that time. On January 15, 1993, plaintiff filed a charge of discrimination with the EEOC alleging that he had been subjected to discriminatory disciplinary practices because of his race. Sometime thereafter, plaintiff was diagnosed by his psychiatrist as suffering from general anxiety disorder, depression and severe job-related stress. Plaintiff's psychiatrist recommended that plaintiff be placed on long-term disability because of his condition. In June 1993, plaintiff applied for long-term disability benefits under defendant's disability plan, which was insured by UNUM Life Insurance Company of America. Plaintiff received long-term disability benefits from UNUM from July 1993 through November 10, 1994. At that time, UNUM terminated plaintiff's disability benefits based on plaintiff's failure to provide proof of continued total disability.
Plaintiff appealed UNUM's decision to terminate his benefits on November 23, 1994. On December 15, 1994, UNUM denied plaintiff's appeal, contending that information provided by plaintiff's doctor did not support the conclusion that plaintiff was disabled from his occupation. Sometime thereafter, plaintiff retained an attorney to represent him in connection with plaintiff's efforts to have his disability benefits reinstated. In April 1995, plaintiff's attorney began negotiating with UNUM regarding the reinstatement of plaintiff's disability benefits. In May 1995, in the midst of these negotiations, Ken Sexton, defendant's Director of Compensation and Benefits in defendant's New York office, spoke with Meredith Fogg, a Senior Benefit Analyst at UNUM, about the status of plaintiff's disability benefits. Mr. Sexton advised Ms. Fogg that he was concerned that plaintiff was severely depressed and that plaintiff had been laid off, that plaintiff's wife had left him, and that plaintiff was having financial problems. Mr. Sexton urged Ms. Fogg to do whatever was necessary to complete review of plaintiff's claim so that there would be no further delays. Mr. Sexton agreed with Ms. Fogg that he would contact plaintiff's attorney and provide the attorney with Ms. Fogg's name and telephone number.
After he retained counsel, plaintiff never again contacted UNUM on his own behalf; plaintiff's counsel handled all negotiations.
In February 1994, while plaintiff was on long-term disability, defendant placed plaintiff on layoff, along with other employees, due to a reduction-in-force. In February 1997, while plaintiff was still on long-term disability, plaintiff's recall rights under the collective bargaining agreement expired, resulting in his separation from employment.
In June 1995, plaintiff's counsel sent a letter to Ms. Fogg in which he contested the reasons for UNUM's denial of plaintiff's disability benefits and requested that UNUM reinstate plaintiff's benefits for the period from November 1994 to July 1995. In response, Ms. Fogg requested that plaintiff's counsel send to her the office notes of plaintiff's treating physician for the period from March 1994 through May 1995. On August 1, 1995, plaintiff's counsel sent the notes of plaintiff's physician to Ms. Fogg. On August 23, 1995, Ms. Fogg advised plaintiff's counsel that she had received the notes from plaintiff's physician and would be reviewing the notes with a staff physician on Tuesday of the following week. Ms. Fogg further advised plaintiff's counsel that she would get in touch with him after meeting with the staff physician. On August 31, 1995, Ms. Fogg wrote to plaintiff's counsel, stating that UNUM was denying his request for reconsideration of its November 10, 1994 decision to terminate plaintiff's benefits. Ms. Fogg further advised plaintiff's counsel that all administrative remedies had been exhausted and that plaintiff's file would remain closed.
On September 8, 1995, plaintiff's counsel wrote to Ms. Fogg, protesting UNUM's decision to uphold the termination of plaintiff's benefits and asking whether plaintiff's dispute could be resolved by a lump-sum settlement. On October 12, 1995, plaintiff's counsel again wrote to Ms. Fogg, reiterating his desire that UNUM reconsider its decision or otherwise settle plaintiff's claim. On October 25, 1995, Ms. Fogg advised plaintiff's counsel that she was awaiting information from UNUM's Chicago office in order to assess possible settlement and that she would be in touch after she received the information. After sending the October 12 letter, plaintiff's counsel made no other efforts to contact UNUM.
Ms. Fogg apparently did not respond to the September 8, 1995 letter because she was attempting to determine whether it was appropriate to contact defendant to discuss plaintiff's counsel's request.
Although the record is not entirely clear, it appears that plaintiff's counsel essentially dropped off the face of the earth until the summer of 1996, at which point he advised plaintiff that he did not have time to pursue plaintiff's case and could no longer handle it. Plaintiff's counsel referred plaintiff to another attorney at that time. Plaintiff never heard anything from his new counsel until the spring of 1997. At that time, plaintiff retained his present counsel.
On November 29, 1995, UNUM's Chicago office advised Ms. Fogg that she could discuss settlement possibilities with plaintiff's counsel. When Ms. Fogg inquired whether she should "loop someone from [defendant] in regarding her intentions," UNUM's Chicago office advised her that UNUM "usually" contacts defendant "to apprise [defendant] of UNUM's actions." Accordingly, Ms. Fogg telephoned Mr. Sexton to advise him that UNUM intended to make a compromise settlement offer to plaintiff regarding his disability benefits. Mr. Sexton told Ms. Fogg that her proposal "sounded good so long as the release was full and final." Mr. Sexton further stated that he wanted to discuss briefly UNUM's proposal with defendant's attorney and that he would report back to her the following day. On December 4, 1995, having not heard back from him, Ms. Fogg telephoned Mr. Sexton to determine whether Mr. Sexton had discussed UNUM's proposal with defendant's attorney. Mr. Sexton indicated to Ms. Fogg that defendant wanted a date in the settlement release as to when actual benefits ceased and wanted to make sure that any settlement was not extending the benefits period. Mr. Sexton again indicated that he would discuss this issue with defendant's attorney. Ultimately, Ms. Fogg advised Mr. Sexton that she could not "get involved in issues between Colgate and the claimant" and that Mr. Sexton should direct his concerns to plaintiff's attorney, attempt to resolve those issues with plaintiff's attorney, and then Ms. Fogg would discuss settlement. Mr. Sexton apparently agreed with Ms. Fogg's advice and further agreed that he would "get back to her." Mr. Sexton did not have any further contact with Ms. Fogg about plaintiff's claim for benefits.
By affidavit, Mr. Sexton testified that he told Ms. Fogg that if UNUM was going to resolve plaintiff's benefits claim, then the resolution should be final as to benefits such that none of the parties would have to deal with benefits issues anymore.
Although the record is unclear, the court assumes that Mr. Sexton meant that he would contact Ms. Fogg after he had resolved (or attempted to resolve) the settlement issues with plaintiff's attorney.
On October 26, 1996, Ms. Fogg attempted to contact Mr. Sexton about plaintiff's claim for benefits. Another employee of defendant advised Ms. Fogg that Mr. Sexton no longer worked for defendant. Ms. Fogg told the employee that she was considering closing plaintiff's file inasmuch as UNUM had been waiting since December 1995 for information from Mr. Sexton regarding a possible settlement with plaintiff. The employee told Ms. Fogg that Kathy Dillane, defendant's Director of Human Resources, would return Ms. Fogg's call. Later that day, Ms. Dillane contacted Ms. Fogg. After Ms. Fogg explained to Ms. Dillane that she had had no communication regarding plaintiff's file in nearly one year, Ms. Dillane advised her that Mr. Sexton had attempted to discuss the matter with plaintiff's attorney but that plaintiff's attorney would not return his phone calls. Ms. Dillane then told Ms. Fogg that she would prefer that UNUM take "no action of any kind but rather let a dormant issue lie." Ms. Fogg stated that she would not attempt any communication with plaintiff's attorney and she closed plaintiff's file.
On October 7, 1997, plaintiff's present counsel wrote to Ms. Fogg to request reconsideration of UNUM's decision to terminate plaintiff's benefits on November 10, 1994. UNUM declined to reverse its claim determination and declined to accept the settlement overtures contained in plaintiff's counsel's letter. In November 1997, plaintiff filed suit against UNUM, seeking reinstatement of his disability benefits under UNUM's policy. In March 1998, through discovery in the lawsuit against UNUM, plaintiff first learned of Mr. Sexton's and Ms. Dillane's alleged interference with UNUM's intention to make a settlement offer to plaintiff. On July 23, 1998, plaintiff settled his lawsuit against UNUM. In this suit, plaintiff claims that defendant, specifically Mr. Sexton and Ms. Dillane, interfered with UNUM's intention to make a settlement offer to plaintiff in retaliation for plaintiff's opposing what he believed to be race discrimination and participating in an EEOC proceeding.
Prior to this time, the last contact that anyone had with UNUM on plaintiff's behalf was in October 1995. See note 5 and accompanying text.
II. Summary Judgment Standard
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. 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. 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. 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. 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).
III. Discussion
Plaintiff claims that, after he complained to the company president and filed a charge of discrimination with the EEOC, defendant retaliated against him by interfering with plaintiff's settlement of his claim against UNUM. In support of its motion for summary judgment, defendant contends that plaintiff cannot establish a prima facie case of retaliation and, in any event, cannot establish that defendant's proffered reason for its conduct is pretextual. As set forth below, the court agrees with defendant that plaintiff has failed to establish a prima facie case of retaliation and that plaintiff has not shown that defendant's proffered reason for its conduct is pretextual. Accordingly, summary judgment is entered in favor of defendant.
Defendant moves for summary judgment on the merits of plaintiff's claim based on two additional grounds. First, defendant maintains that plaintiff's potential settlement of his claim against UNUM is not a contract right protected by section 1981 because any potential settlement between plaintiff and UNUM in November 1995 was simply too speculative. Second, defendant contends that plaintiff has already recovered the damages he seeks in this lawsuit from UNUM and, because plaintiff is not entitled to recover the same damages twice, plaintiff's claim must be dismissed. In light of the court's conclusion that summary judgment is appropriate on other grounds, the court declines to address these arguments.
Defendant also moves for summary judgment on procedural grounds, maintaining that plaintiff's retaliation claim is barred by the applicable statute of limitations. In that regard, defendant asserts that plaintiff, with reasonable diligence, could have discovered defendant's alleged interference with plaintiff's UNUM settlement long before September 1997-two years prior to the time when plaintiff filed his complaint against defendant. See, e.g., Lasley v. Hershey Foods Corp., 35 F. Supp.2d 1319, 1321 (D.Kan. 1999) (Kansas' two-year personal injury statute of limitations applies to section 1981 claims) (and cases cited therein). Plaintiff maintains that he did not discover defendant's conduct until March 1998, when UNUM produced its claim file during the course of discovery in the UNUM lawsuit. While the court need not decide this issue in light of its ultimate conclusion that summary judgment is appropriate on the merits of plaintiff's claim, suffice it to say that plaintiff has come forward with evidence from which a reasonable jury could conclude that plaintiff could not have reasonably ascertained the fact of his injury prior to September 1997.
As plaintiff concedes that he has no direct evidence of retaliatory motive, the court analyzes plaintiff's retaliation claim under the familiar burden-shifting framework first pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See McGarry v. Board of County Commr's, 175 F.3d 1193, 1201 (10th Cir. 1999); Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1243 (10th Cir. 1999) (citing Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 549-50 (10th Cir.), cert. denied, 120 S.Ct. 48 (1999)); accord Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000) (applying McDonnell Douglas framework to section 1981 claim). To establish a prima facie case of retaliation, plaintiff must demonstrate that (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. See Kendrick, 220 F.3d at 1234. Once plaintiff establishes his prima facie case, the burden shifts to defendant to offer a legitimate, nonretaliatory reason for its actions. See McGarry, 175 F.3d at 1201. If defendant comes forward with a legitimate reason for its actions, the burden then reverts to plaintiff to show that there is a genuine dispute of material fact as to whether defendant's proffered reason for the challenged action is pretextual. See id.
According to defendant, plaintiff cannot satisfy the second and third elements of his prima facie case of retaliation. With respect to the first element, defendant maintains that its alleged interference with plaintiff's attempt to settle with UNUM does not constitute an "adverse action," primarily because plaintiff does not complain about any changes to his employment status with defendant. Given the Tenth Circuit's liberal interpretation of "adverse employment action," see Jeffries v. Kansas, 147 F.3d 1220, 1231-32 (10th Cir. 1998), and the Circuit's willingness to recognize that "an adverse employment action can arise from events having an adverse impact on future employment opportunities," see Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996), the court concludes that events having an adverse impact on future contractual opportunities, including the settlement of plaintiff's claim with UNUM, can constitute "adverse actions" sufficient for purposes of plaintiff's prima facie case. In short, the court rejects defendant's argument that its conduct does not constitute an adverse action. See Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) (plaintiff satisfied "adverse action" element of prima facie case by showing that defendant "required her to go through several hoops in order to obtain her severance benefits").
The third element is where plaintiff falls short. Simply put, plaintiff has failed to come forward with sufficient evidence from which a jury could reasonably conclude that a causal connection exists between his protected activity and defendant's alleged interference with plaintiff's UNUM settlement. As the Tenth Circuit has noted, a causal connection is established where the plaintiff presents "evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action." See id. Even assuming that Ken Sexton and Kathy Dillane had knowledge of plaintiff's protected activity, mere awareness of plaintiff's protected activity, without more, does not create an inference of unlawful retaliation. Plaintiff must still establish the causation element of his prima facie case. Although the Tenth Circuit has held that protected conduct closely followed by adverse action may support an inference for retaliatory motive, see Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996), the circuit has underscored that unless the employer's adverse action "is very closely connected in time to the protected conduct, the plaintiff will need to rely on additional evidence beyond mere temporal proximity to establish causation." See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citing Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997)). The circuit, for example, has held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. See id. (citing Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994)). By contrast, the circuit has held that a three-month period, standing alone, is insufficient to establish causation. See id. (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997)); see also Kendrick, 220 F.3d at 1234 (plaintiff failed to establish causal connection between his complaints to management and his discharge because the complaints, occurring six months prior to his discharge, were remote in time).
Defendant vigorously contends that neither Mr. Sexton nor Ms. Dillane had any knowledge of plaintiff's protected activity and, thus, that summary judgment on plaintiff's retaliation claim is appropriate. See Kendrick, 220 F.3d at 1235 (affirming dismissal of retaliation claim on summary judgment where plaintiff presented no evidence that decisionmaker knew of plaintiff's protected activity at time discharge decision was made); Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10th Cir. 1998) (same). According to defendant, plaintiff testified in his deposition that he never mentioned his EEOC charge to Mr. Sexton and that he did not even know Kathy Dillane. In an affidavit filed in support of plaintiff's papers, however, plaintiff avers that he did discuss his EEOC charge with both Mr. Sexton and Ms. Dillane. Maintaining that plaintiff's affidavit contains "sham" evidence, defendant urges the court to strike the affidavit. See Kendrick, 220 F.3d at 1223 n. 2 (an affidavit that contradicts earlier testimony should be disregarded if it constitutes an attempt to create a sham fact issue) (citing Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).
In an effort to respond to defendant's arguments, plaintiff has filed a motion to supplement his memorandum in opposition to defendant's motion for summary judgment (doc. #35). The motion is granted. In it, plaintiff maintains that his affidavit testimony is not in direct conflict with his deposition testimony. After reviewing the parties' papers on this issue, as well as the relevant deposition and affidavit testimony, the court is simply unable to conclude that plaintiff's affidavit demonstrates an attempt to create a sham fact issue. While the question may be a close one, defendant is clearly not prejudiced by the court's consideration of the affidavit in light of the fact that, even assuming Mr. Sexton and Ms. Dillane knew about plaintiff's protected activity, the court enters summary judgment for defendant.
Plaintiff complained to the company president about racial discrimination in the workplace sometime prior to 1989. He filed his EEOC charge in January 1993. Defendant allegedly interfered in plaintiff's settlement with UNUM in late November 1995 and early December 1995-at least seven years after plaintiff's complaints to defendant's president and nearly three years after plaintiff's EEOC filing. Given the significant length of time between plaintiff's protected activity and defendant's alleged interference, no reasonable jury could infer a retaliatory motive. Stated another way, the mere fact that defendant allegedly interfered with plaintiff's UNUM settlement three years after plaintiff filed an EEOC charge (or seven years after he complained to the company president), without more, is wholly insufficient to establish the requisite causal connection. See Redmond v. Day Zimmerman, Inc., 897 F. Supp. 1380, 1386 (D.Kan. 1995) (no inference of causal connection where defendant terminated plaintiff's employment more than three years after plaintiff filed initial charge of discrimination) (citing Burrus v. United Tel. Co., 683 F.2d 339, 343 (10th Cir. 1982) (plaintiff failed to establish prima facie case of retaliation where three years passed between the filing of her charges and her termination)), aff'd, 85 F.3d 641 (10th Cir. 1996); accord Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320 (10th Cir. 1999) (plaintiff failed to demonstrate causal connection between her protected activity of complaining about alleged bias in earlier interview process for one position and adverse employment decisions leading to her rejection for second position two years later).
Plaintiff attempts to avoid this result by focusing on the date on which the EEOC issued plaintiff a notice of right-to-sue rather than the date on which plaintiff filed his EEOC charge. According to plaintiff, the timing of events, when measured from September 26, 1995 (the date on which the EEOC issued its notice of right-to-sue) to late November 1995 is sufficient to support an inference of retaliation. Significantly, plaintiff directs the court to no authority supporting his argument that the EEOC's issuance of a right-to-sue letter is "protected activity" for purposes of analyzing the causal connection prong of plaintiff's prima facie case. Plaintiff merely asserts that he was "participating" in the EEOC process through September 26, 1995 and that such continued participation constitutes protected activity. The "protected activity" prong of the plaintiff's prima facie case, however, clearly contemplates some type of active conduct on the part of the plaintiff-conduct such as filing an EEOC charge; testifying in a deposition or at trial; or complaining to management. See McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486 (10th Cir. 1996) ("[I]t is the assertion of statutory rights ( i.e., the advocacy of rights) by taking some action adverse to the company-whether via formal complaint, providing testimony . . ., complaining to superiors . . . or otherwise-that is the hallmark of protected activity.") The record, however, is devoid of any evidence suggesting that plaintiff was actively participating or assisting in the EEOC process in September 1995 or at any other time after he filed his charge. There is no evidence that plaintiff was actively advocating his rights or the rights of others in September 1995. There is no evidence that plaintiff took any action adverse to the company in September 1995. The record reflects only that plaintiff happened to receive his notice of right-to-sue in September 1995. In short, merely receiving a notice of right-to-sue from the EEOC-in the absence of any evidence that the plaintiff was actively pursuing the charge or asserting his rights-is simply not the type of activity that is protected from retaliation. See Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (the "assertion of statutory rights" is the triggering factor for protected status).
In another attempt to shed a different light on the timing of the events here, plaintiff contends that the record evidence demonstrates a pattern of retaliatory conduct that began shortly after plaintiff complained to the company president about race discrimination. This pattern, according to plaintiff, culminated in defendant's interference with plaintiff's settlement with UNUM. Plaintiff maintains that this pattern of retaliatory conduct is sufficient to demonstrate the requisite nexus between his pre-1989 complaints to the company president and defendant's conduct in late November/early December 1995. The court disagrees.
In support of this argument, plaintiff relies solely on the Tenth Circuit's opinion in Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10th Cir. 1996). In Marx, the Circuit cautioned that the temporal proximity requirement of the plaintiff's prima facie case of retaliation "must not be read too restrictively where the pattern of retaliatory conduct" begins soon after the plaintiff engages in protected activity and only culminates later in an adverse employment action. See id. at 329. In that case, the Circuit held that "the pattern of actions" taken by defendant precluded summary judgment. The retaliatory conduct in Marx began with plaintiff being 'written up' following his FLSA complaint, escalated with his demotion for lying about discussions relating to a FLSA questionnaire, and continued with the use of discovery in his FLSA suit to dredge up information concerning unrelated wrongdoing. It ended with his termination, which was based on information revealed through discovery.
See id. The conduct in Marx, from the time the plaintiff filed his complaint until the time of his discharge, spanned a period of eighteen months. By contrast, the conduct of which plaintiff complains here spans a period of seven years-with a three-year gap between the last allegedly retaliatory act in January 1993 and the alleged interference in November 1995. Moreover, all of the retaliatory acts in Marx were apparently taken by the same members of management-supervisors in the store at which the plaintiff was employed. Here, there is no evidence whatsoever that either Ken Sexton or Kathy Dillane had anything to do with (or even had knowledge of) the events that took place from 1989 through 1993. There is no evidence that Mr. Sexton or Ms. Dillane knew that plaintiff had complained to the company president. There is no evidence of any kind of "company wide campaign" to retaliate against plaintiff for his complaints to the company president. In short, the "pattern" of retaliatory conduct alleged by plaintiff is simply too attenuated to support an inference that Mr. Sexton's conduct in November 1995 or Ms. Dillane's conduct in October 1996 was based on plaintiff's pre-1989 complaint to management. At the most, plaintiff's evidence reveals discrete, unrelated and infrequent events over the course of seven years. Because plaintiff offers nothing else to support his prima facie case, the court concludes that plaintiff has failed to demonstrate the requisite causal connection between his protected activity and defendant's conduct.
Moreover, plaintiff offers virtually no details about the events that took place between 1989 and 1993.
In a similar vein, plaintiff asserts that these earlier retaliatory acts are relevant in proving defendant's retaliatory motive in interfering with plaintiff's attempted settlement with UNUM pursuant to Federal Rule of Evidence 404(b). For the same reasons as set forth above in connection with plaintiff's argument that defendant's conduct constitutes a "pattern" of retaliation, the court rejects this argument as well.
Federal Rule of Evidence 404(b) generally excludes evidence of other acts for the purpose of proving a person acted similarly on other occasions. See Coletti v. Cudd Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999). The Tenth Circuit, however, has "modified this general rule somewhat in the context of employee discharge cases requiring proof of discriminatory intent." See id. In those cases, Rule 404(b) evidence may be "relevant to the issue of the employer's discriminatory intent if the [evidence] establishes a pattern of retaliatory behavior or tends to discredit the employer's assertion of legitimate motives." Id. at 776-77 (citation omitted). In order for the court to find such character testimony relevant, however, the plaintiff must show that the prior acts can "logically or reasonably be tied" to the act about which the plaintiff complains. See id. at 777 (citations omitted). As set forth above, plaintiff has shown no connection between the earlier acts of alleged retaliation and defendant's alleged interference with his UNUM settlement. Significantly, there is no evidence that Mr. Sexton or Ms. Dillane had mistreated any other employee after filing a charge of discrimination or otherwise complaining about discrimination. Similarly, there is no evidence that Mr. Sexton or Ms. Dillane had any involvement whatsoever in the alleged mistreatment of plaintiff between 1989 and 1993. In the absence of any connection between these prior acts and the conduct of Mr. Sexton and/or Ms. Dillane, there is no legitimate ground for considering the evidence pursuant to Rule 404(b).
Even assuming, however, that plaintiff's evidence is sufficient to support a prima facie case of retaliation, the court would nonetheless grant summary judgment in favor of defendant because plaintiff has not shown that defendant's proffered reason for its actions is 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. (citing Morgan, 108 F.3d at 1323).
According to defendant, Mr. Sexton had a legitimate business reason for his request that any UNUM settlement be "full and final" as to benefits, including a specific date on which plaintiff's benefits ceased. Mr. Sexton simply wanted to ensure that if UNUM and plaintiff came to a resolution about plaintiff's disability benefits, then none of the parties would have to deal with that same issue in the future. It is a legitimate concern for an employer to desire such finality so that its resources need not be expended in the future to readdress matters which could have been put to rest once and for all. With respect to Ms. Dillane's October 1996 request that UNUM "let a dormant issue lie," defendant maintains that she was simply "stating the obvious" in light of the circumstances and that the comment, if made, was reasonable in that neither plaintiff nor his attorney had attempted to contact UNUM about settlement in more than a year and plaintiff's attorney had failed to return Mr. Sexton's phone calls. It is a legitimate business interest for an employer to minimize claims paid and, thus, help keep its share of premium payments lower, particularly when an employee appears to have abandoned his claim. Defendant has satisfied its "exceedingly light" burden to provide a legitimate nonretaliatory reason for its decision to terminate plaintiff's employment. See Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir.), cert. denied, 120 S.Ct. 50 (1999).
In his papers, plaintiff does not even address defendant's proffered legitimate reasons for its conduct. Plaintiff merely argues that there is evidence in the record from which a reasonable jury could conclude that the "conduct of the defendant's employees played a substantial role in delaying plaintiff's attempted settlement with UNUM." This statement, however, loses sight of plaintiff's claim. Plaintiff does not claim that defendant tortiously interfered with his potential settlement with UNUM. He claims that defendant interfered with that potential settlement because he engaged in protected activity. In other words, even assuming that defendant's employees "played a substantial role in delaying plaintiff's attempted settlement with UNUM" as plaintiff alleges, there is simply insufficient evidence in the record from which a jury could reasonably conclude that defendant's conduct was based on plaintiff's protected activity. Significantly, there is no evidence in the record that Mr. Sexton or Ms. Dillane were upset or angry about plaintiff's protected activity. There is no evidence that they ever discussed his complaints with anyone or that they cared one way or the other about that activity. Moreover, it is undisputed that in May 1995-after plaintiff had complained to the company president and after he filed his EEOC charge-Mr. Sexton, out of concern for plaintiff's well-being, urged Ms. Fogg to do whatever was necessary to complete review of plaintiff's claim for benefits so that there would be no further delays. Such conduct is completely inconsistent with plaintiff's theory that Mr. Sexton purposefully delayed plaintiff's settlement in retaliation for his complaints. In addition, plaintiff has offered no evidence whatsoever that Mr. Sexton, in making his request to UNUM that any release be "full and final" as to disability benefits, was not in fact acting out of a genuine business concern. In short, there is simply no evidence before the court that either Mr. Sexton or Ms. Dillane took any actions based on plaintiff's protected activity.
Because plaintiff has failed to present sufficient evidence from which a reasonable jury could conclude that a causal connection exists between his protected activity and defendant's alleged interference with his settlement with UNUM and, in any event, because plaintiff has failed to present sufficient evidence that defendant's proffered reasons for its conduct are pretextual, summary judgment in favor of defendant is appropriate.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to supplement plaintiff's memorandum in opposition to defendant's motion for summary judgment (doc. #35) is granted and defendant's motion for summary judgment (doc. # 22) is granted. Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.