Opinion
CIVIL ACTION No. 00-2002-GTV.
December 6, 2000.
MEMORANDUM AND ORDER
Plaintiff formerly worked as a journeyman freight car mechanic for the Burlington Northern and Santa Fe Railroad Company ("BNSF"). In early 1998, Plaintiff filed a race discrimination lawsuit against BNSF. He continued working while his suit was pending, and sustained an injury in April of 1999. BNSF terminated Plaintiff's employment after an investigation of Plaintiff's reports regarding the injury.
Plaintiff now brings this § 1981 action against Defendants, BNSF and Monte Johnson (Shop Superintendent for BNSF). He alleges that Defendants discharged him in retaliation for his filing the race discrimination lawsuit. He also alleges that under state law, Defendants unlawfully discharged him in retaliation for his filing an on-duty injury claim.
42 U.S.C. § 1981 (1994).
This case is before the court on Defendants' Motion for Summary Judgment (Doc. 35). For the reasons discussed below, the court grants Defendants' summary judgment motion.
I. Factual Background
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
Plaintiff, an employee of BNSF and an African-American, filed a § 1981 lawsuit against BNSF on February 12, 1998 (Case No. 98-4027-SAC), alleging that BNSF discriminated against Plaintiff because of his race. While Plaintiff's suit was pending, Plaintiff continued his employment with BNSF. Defendant Monte Johnson, Shop Superintendent for BNSF, was aware that Plaintiff had filed the discrimination suit; he was deposed for the case. Defendant Johnson's superior, Richard Dennison, was also likely aware that Plaintiff had filed a discrimination lawsuit; Defendant Johnson testified in deposition that he probably told Richard Dennison about Plaintiff's case.
BNSF imposed a number of safety rules on its employees. The company prohibited employees from withholding information or failing to give all the facts regarding personal injuries, whether on-duty or off-duty. Other than that general rule, however, BNSF treated on-duty and off-duty injuries differently. The company required that employees immediately report all on-duty injuries. Off-duty injuries that would affect an employee's performance of duties were to be reported "as soon as possible." Reporting procedures were different for on-duty and off-duty injuries because BNSF was responsible for on-duty injuries and the employee's personal insurance was responsible for off-duty injuries. In addition, employees with off-duty injuries were allowed to participate in the Transitional Work Program ("TWP"), a two-week "light duty" program. Employees injured on-duty were not eligible for the program.
On April 6, 1999, Plaintiff left work without reporting an injury. The next day, Plaintiff could not get out of bed because of back pain. He did not go to work, and was unable to call in sick. On April 8, Plaintiff was still experiencing back pain, and called work to report that he was sick and was going to the hospital. Plaintiff called work again on April 9 and reported that he would not be in because he had pulled a muscle in his back. Eventually, a doctor certified Plaintiff to be off work from April 7 through May 3. From May 3 through May 17, Plaintiff returned to work on light duty under the program for employees who were injured off-duty (TWP).
On BNSF-required forms dated April 15, April 26, and May 14, 1999, Plaintiff penciled in "unknown" rather than indicating that his back injury occurred on-duty or off-duty. In conflict with those forms, however, Plaintiff completed BNSF paperwork dated April 21, 1999 where he indicated that the cause of his injury was "off-duty medical problems."
Plaintiff's supervisor believes that the week after Plaintiff's injury, Plaintiff told him that the injury was not job-related. Approximately one to two weeks after Plaintiff's injury, Plaintiff recalls that the supervisor asked Plaintiff whether the injury was work-related. Plaintiff responded, "No, I didn't know where I'd hurt my back at and I was kind of waiting to make sure that my back was hurt [instead of] something else wrong."
On May 17, 1999, Plaintiff met with Defendant Johnson. Defendant Johnson normally did not get involved in inquiring whether an injury was on-duty or off-duty. However, Defendant Johnson claims that Plaintiff's case was unusual; nearly six weeks had passed since Plaintiff sustained his injury, and BNSF still did not know whether Plaintiff was claiming on-duty injury.
At the May 17 meeting, Defendant Johnson asked Plaintiff to declare whether his injury was an on-duty or off-duty injury. Plaintiff replied that he was waiting for his doctor to diagnose the injury before he could tell when it had happened. On May 21, Defendant Johnson told Plaintiff that he had to declare that day whether the injury was on-duty or off-duty. Plaintiff replied, "If you're going to squeeze me, I'm going to claim on the job injury." Plaintiff then completed an injury report in which he listed two alternative causes for his injury, both on-duty.
While Plaintiff was completing the on-duty injury paperwork on May 21, 1999, he was given notice of a formal investigation regarding his failure to comply with BNSF reporting rules. The investigation (essentially a hearing) was held on June 14, but Plaintiff did not attend because he forgot about the proceeding. Defendant Johnson recommended discipline of dismissal for the rule infractions discussed in the formal investigation proceeding. He then forwarded the transcript of the investigation proceeding to a BNSF official with no prior knowledge of Plaintiff's prior lawsuit for review. The BNSF reviewer concurred that Plaintiff had committed the charged rule infractions and that dismissal was proper. Defendant Johnson's superior, Richard Dennison, made the final determination that Plaintiff should be dismissed.
Plaintiff alleges that several other incidents are relevant to this case. He alleges that on December 22, 1997 (before he filed his race discrimination lawsuit), he injured his eye, but did not report the injury until December 23. He did not know whether the injury occurred on-duty or off-duty. Plaintiff saw a doctor the morning of December 23, and returned to work after the doctor found nothing wrong. He was never assessed discipline for late reporting of his eye injury.
Plaintiff also directs the court to incidents that occurred after he filed his race discrimination lawsuit. On May 6, 1998, Plaintiff was issued a formal letter of reprimand for failing to wear proper eye protection. He states that, on prior occasions, other employees were merely given verbal warnings. However, two days before Plaintiff's reprimand, Defendant Johnson had instructed the supervisors that they would be held accountable for rule infractions. Defendant Johnson testified by affidavit that he did this with the intent of emphasizing to them "that shop supervisors did not have the discretion to merely coach and counsel an unambiguous safety rule infraction."
Plaintiff also asserts that on July 8, 1998, his supervisor gave him an unfavorable work assignment. In another instance, he was issued a formal letter of reprimand for failing to use "suitable language" on December 30. The reprimand was the first Plaintiff had ever received for his language. Finally, Plaintiff alleges that when he was performing light duty under the TWP program, Defendant Johnson encouraged Plaintiff to find work in another building.
II. Standard for Judgment
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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. Discussion A. Federal Retaliatory Discharge Claim
Plaintiff alleges that Defendants dismissed him in retaliation for his filing the prior race discrimination lawsuit against BNSF. In considering a § 1981 claim that lacks direct evidence of retaliatory motive, the court is bound by the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McDonnell Douglas provides a three-step, burden-shifting process by which to evaluate § 1981 cases. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (adopting McDonnell Douglas framework for claims filed under § 1981). First, Plaintiff must establish a prima facie case of retaliation. See McDonnell Douglas, 411 U.S. at 802. "To establish a prima facie case of retaliation, the plaintiff must show (1) that [he] engaged in a protected activity, (2) that [he] was subjected to adverse employment action by [his] employer, and (3) that a causal connection exists between the protected activity and the adverse employment action." McCue v. Kansas, Dep't of Human Res., 165 F.3d 784, 789 (10th Cir. 1999). Once Plaintiff establishes a prima facie case, the burden shifts to Defendants. Defendants must offer a legitimate reason for the adverse action. See id. Finally, if Defendants offer a legitimate reason, the burden returns to Plaintiff. Plaintiff must establish "a genuine dispute of material fact as to whether [Defendants'] proffered reason for the challenged action is pretextual — i.e. unworthy of belief." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Circumstantial evidence may be used to establish pretext, and the Tenth Circuit has identified several types commonly used: (1) the employer's prior treatment of the employee; (2) the employer's minority employment policies and practices; (3) "disturbing procedural irregularities"; and (4) the employer's use of subjective criteria. See Simms v. Oklahoma ex rel. Dep't of Mental Health Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999). If Plaintiff can establish a prima facie case and present evidence of pretext upon which a reasonable jury could infer retaliatory motive, then his claim survives summary judgment.
In the instant case, Defendants concede that Plaintiff can meet the first two elements of a prima facie case. Defendants only argue that Plaintiff cannot establish a causal connection between the filing of the earlier lawsuit and the termination of Plaintiff's employment. To establish a causal connection, Plaintiff must show at a minimum that the person who took adverse action against him knew of his prior lawsuit. See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993).
Plaintiff also may establish a causal connection by demonstrating close temporal proximity between his prior lawsuit and his discharge. See Marx v. Schnuck Mkts, Inc., 76 F.3d 324, 329 (10th Cir. 1996) ("[P]rotected conduct closely followed by adverse action may justify an inference of retaliatory motive."). The court need not analyze Plaintiff's case under this law, because the court concludes that Plaintiff has established a prima facie case without having to rely on inferences.
Defendants claim that Plaintiff is unable to do this because the evidence shows that, while Defendant Johnson knew of Plaintiff's previous lawsuit, he did not make the final decision to dismiss Plaintiff. Instead, a BNSF official without knowledge of the prior lawsuit reviewed the transcript of the investigation and concurred that Plaintiff had committed the alleged violations and that dismissal was warranted. Then, Defendant Johnson's superior, Richard Dennison, made the final decision to dismiss Plaintiff.
Defendants' argument fails. The Tenth Circuit has rejected the "final decision maker" requirement with regard to Title VII retaliation actions. See McCue, 165 F.3d at 788. In McCue, the court stated, "There is simply no basis to restrict liability in Title VII retaliation actions away from the law of agency. . . . [P]ermitting such a loophole for avoiding liability would effectively destroy any Title VII retaliation actions." See id. This same rationale could be applied to § 1981 retaliation actions. See generally Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997) ("The elements of each cause of action [§ 1981 and Title VII] have been construed as identical. . . ."). Defendant Johnson knew of Plaintiff's prior lawsuit, and took adverse action by instigating the investigation that led to Plaintiff's dismissal. Although Defendant Johnson did not make the final decision to dismiss Plaintiff, a genuine issue of fact exists as to whether he "caused" Plaintiff's dismissal if the court applies agency principles. Furthermore, even if the final decision maker must know of Plaintiff's prior lawsuit to establish a causal connection in a § 1981 case, a genuine issue exists as to whether Richard Dennison, who made the decision to dismiss Plaintiff, knew of the prior lawsuit.
The court concludes that Plaintiff has presented a prima facie case of retaliation. Thus, it becomes Defendants' responsibility to proffer a legitimate reason for Plaintiff's dismissal. Defendants explain:
Assuming [Plaintiff] was injured on the job, he falsely reported to his supervisor that he was not hurt on the job; failed to immediately report the injury to the proper manager and fill out the prescribed form; and withheld or failed to give all the facts regarding his injury.
Assuming [Plaintiff] was not injured on the job, he falsely claimed an on-duty injury and failed to give all the facts regarding his injury.
This explanation meets Defendants' burden of proof, and shifts the burden back to Plaintiff to show that the explanation is unworthy of belief.
Plaintiff makes three arguments why Defendants' explanation is unworthy of belief. First, Plaintiff argues that before he filed his previous lawsuit, he was treated differently in a similar situation. He cites a December 1997 eye injury where he was unable to report whether the injury occurred on-duty or off-duty, and alleges that management did not investigate or discipline Plaintiff for improper reporting.
Plaintiff actually only makes two arguments regarding pretext in his summary judgment response. However, he makes an argument regarding the causation element of his prima facie case that the court will consider as a pretext argument.
The court concludes that no reasonable jury could find Plaintiff's December 1997 eye injury comparable to Plaintiff's April 1999 back injury. In December 1997, Plaintiff reported an eye injury to his supervisor one morning, and stated that the cause was unknown. He went to the doctor, discovered that nothing was wrong with his eye, and returned to work in a little over an hour. No paperwork was ever completed. In contrast, the April 1999 injury involved an extended leave of absence, TWP time, and numerous forms on which, at various times, Plaintiff indicated that the injury occurred at an "unknown" time, off-duty, and on-duty.
Second, Plaintiff argues that a "disturbing procedural irregularity" existed in the handling of his April 1999 injury. In support, Plaintiff states that "[Defendant] Johnson admitted that he did not follow his usual practice, beginning in April of 1999, when he took an active role in interrogating the plaintiff as to whether his injury was work-related." Even though Defendant Johnson did become involved in Plaintiff's injury reporting, which was unusual, the circumstances surrounding Plaintiff's injury also were unusual. By the time Defendant Johnson became involved, Plaintiff had vacillated between an unknown cause and an off-duty cause for nearly six weeks.
Plaintiff cites his December 1997 eye injury as an example of a similar case where, per normal procedure, Defendant Johnson did not become involved in ascertaining a cause for Plaintiff's injury. However, as explained above, no reasonable jury could find the December 1997 eye injury comparable to the April 1999 back injury. The court concludes that Defendant Johnson's involvement in Plaintiff's injury reporting did not amount to a "disturbing procedural irregularity" which could convince a reasonable jury that Defendants' explanation for Plaintiff's dismissal was merely pretextual.
Finally, Plaintiff argues that Defendants engaged in a "pattern of retaliatory conduct" from which a reasonable jury could infer retaliatory motive. He cites the formal reprimands for not wearing eye gear and using improper language, the unfavorable work assignment, and Defendant Johnson's encouragement to work in another building. The court finds these events insufficient to establish a pattern of retaliatory conduct which could convince a reasonable jury that Defendants' explanation for Plaintiff's dismissal was pretextual. Because Plaintiff has not met his burden of showing evidence of pretext, the court dismisses his § 1981 claim.
B. State Retaliatory Discharge Claim
Having dismissed Plaintiff's claim over which the court has original jurisdiction, the court declines to exercise supplemental jurisdiction over the remaining state law claim. See 28 U.S.C. § 1367 (c)(3) (1994); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' summary judgment motion is granted.
The case is closed.
IT IS SO ORDERED.