Opinion
Civil Action 1:19-cv-02842-RM-SKC
06-01-2021
JONATHAN KEYWORTH, Plaintiff, v. LOWE'S COMPANIES, INC., Defendant.
RECOMMENDATION RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [#40]
S. Kato Crews, United States Magistrate Judge
Plaintiff Jonathan Keyworth was hired by Lowe's Companies, Inc. in November 2012. [#46 at ¶1.] In August 2017, Plaintiff transferred to the Arvada Lowe's (the “Store”). [#41-2 at p.4.] Following his transfer to the Store, it is undisputed fellow Lowe's employees began submitting complaints about Plaintiff's performance to the Store's manager and human resources. [#46 at ¶¶3-8.] On January 15, 2018, Plaintiff met with the Store and Area Human Resource Managers to discuss the complaints they received. [Id. at ¶9.] During the meeting, Plaintiff confirmed he had Post Traumatic Stress Disorder (“PTSD”). [Id.] After this meeting, Plaintiff applied for, and was granted a leave of absence for his hypoxemia. [Id. at ¶13.] Upon his return, he was given a workplace accommodation, permitting him to sit down for 15-20 minutes every hour while still performing his job duties. [Id. at ¶¶14-17.] During his employment, multiple Store employees reported Plaintiff was sleeping at work, spending a significant amount of time in his office, and was unavailable to other associates. [Id. at ¶¶21-30.]
The Court uses “[#.]” to refer to specific docket entries in CM/ECF.
Plaintiff contends this is a disputed fact because there are 44-55 employees working on any given day, and no other employees (apart from those who formally complained) or customers complained. He also argues these complaints were never corroborated or investigated. This may all be true, but it does not create a dispute as to the fact these particular complaints existed. The Court finds it undisputed Plaintiff's coworkers filed formal complaints about him and his performance.
Plaintiff disputes he was spending significant amounts of time in the office and contends the Store's paging system could not be heard everywhere. He also theorizes he could have been on formal breaks at the reported times. And he again argues the complaints were not corroborated. However, for the same reasons stated previously, the Court concludes this does not create a disputed issue as to whether the complaints were made. In addition, several employees reported Plaintiff seemed intoxicated at work, which Plaintiff disputes. But Plaintiff was not terminated because of any of these reports of intoxication; therefore, any factual dispute around this is immaterial.
In May 2018, Plaintiff applied for three different Assistant Store Manager positions at other Lowe's stores. [Id. at ¶48.] Although he interviewed with the Aurora store, Plaintiff was not offered the position. [Id. at ¶¶48-49.] He then inquired with the EEOC over his feeling he was refused the opportunity to transfer stores because of his disabilities. [Id. at ¶50.] On June 21, 2018, Plaintiff utilized Lowe's internal reporting service and complained he felt discriminated against. [Id. at ¶54.] Reid Beaver, from Employee Relations, investigated Plaintiff's complaint but ultimately concluded it was unsubstantiated. [#44-11.]
On August 17, 2018, Plaintiff was placed on a performance improvement plan (“PIP”), which included categories for performance expectations, measures of success and required outcomes, available support, and action plans. [#41-12.] The PIP stated the performance improvement period would be from August 17, 2018, through October 9, 2018. However, Plaintiff's employment was terminated on September 12, 2018. [#46 at ¶80.] Plaintiff then filed this lawsuit asserting discrimination based on his disabilities in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12102-12213. He also asserts a claim of retaliatory discharge and contends Lowe's terminated his employment because he engaged in protected activities under the ADA. [#1.] Lowe's seeks summary judgment in its favor on both claims. [#40.] The Court has reviewed the Motion and related briefing, the evidence, the relevant law, and the entire case file. A hearing is unnecessary. For the following reasons, the Court RECOMMENDS the Motion be GRANTED and judgment be entered in Lowe's favor.
STANDARD OF REVIEW
Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)).
Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury, or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).
ANALYSIS
Plaintiff contends Lowe's discriminated against him based on his disabilities and protected conduct when it failed to transfer him and terminated his employment. Lowe's argues Plaintiff can establish neither a prima facie case of discrimination nor a causal connection between Plaintiff's protected conduct and an adverse employment action. The Court need not address these arguments because it concludes the undisputed facts fail Plaintiff's showing of pretext.
A. Disability Discrimination
The ADA prohibits “discriminat[ion] against a qualified individual on the basis of a disability, ” including by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity.” 42 U.S.C. §§ 12112(a) and (b)(5)(a). ADA discrimination cases are generally subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
The McDonnell Douglas framework involves a three-step analysis. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). “First, the plaintiff must prove a prima facie case of discrimination. If the plaintiff satisfies the prima facie requirements, the defendant bears the burden of producing a legitimate, nondiscriminatory reason for its action.” Id. “If the defendant makes this showing, the plaintiff must then show that the defendant's justification is pretextual.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000).
Here, Lowe's contends Plaintiff was denied a transfer to the Aurora store and was ultimately terminated based on his below-par performance, including his failure “to show immediate and sustained improvement outlined” in the PIP. [#40 at pp.1720; #41-17.] Plaintiff has offered no competent evidence on summary judgment demonstrating a factual dispute over whether this reason is pretextual.
To establish a genuine issue of material fact as to pretext, a plaintiff must adduce evidence demonstrating the defendant's “proffered non-discriminatory reason is unworthy of belief.” Pinkerton v. Colo. Dep't of Transp., 563 F.3d 1052, 1065 (10th Cir. 2009). The plaintiff can meet this standard by producing evidence of “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.” Id.; see also Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010). If the plaintiff “advances evidence upon which a factfinder could conclude [] the defendant's allegedly nondiscriminatory reasons for the employment decisions are pretextual, the court should deny summary judgment.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1134 (10th Cir. 2010). “Mere conjecture that the employer's explanation is pretextual is insufficient to defeat summary judgment.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citing Morgan, 108 F.3d at 1323)).
In his Response, Plaintiff cites only two examples of potential pretext. [#43 at pp. 12-13.] He first argues Lowe's reasons are demonstrably pretextual because there was documented improvement in his performance. [Id. at p.12; see also #46 at ¶67, #44-1 at pp.31-33.] But improvement in Plaintiff's sales metrics does not contradict the existence of areas where he failed to improve, nor does it contradict evidence Plaintiff's coworkers continued to complain about his performance. [#46 at ¶78.] To be sure, all these facts can be true at the same time without causing Lowe's non- discriminatory reasons for its employment decisions to be weak, implausible, inconsistent, incoherent, or contradictory.
Plaintiff also contends the investigation into his allegations of discrimination (related to his unsuccessful transfer applications) was ongoing despite Beaver's August 3, 2018 conclusion the complaint was unsubstantiated. [#44-14.] He points to the fact that the Director of Labor and Employee Relations, Robin Briscoe, sent Plaintiff an email “following up” with him about his complaints on August 23, 2018. [#44-15.] This argument is difficult to follow and woefully underdeveloped. The Court presumes this is about Lowe's alleged discrimination in denying Plaintiff's transfer, although Plaintiff has not specified as much. But even setting that aside, Plaintiff's evidence does not support his assertion the investigation extended past August 3, 2018.
Beaver completed his investigation into Plaintiff's allegations of discrimination and closed his file on August 6, 2018. [#44-11.] In his email informing Plaintiff of his findings, Beaver said Area Human Resources Manager Chris Hernandez would be reaching out to discuss the issues Plaintiff raised in his complaint. [#44-14.] On August 17, 2018, Plaintiff emailed Beaver, Lowe's CEO Marvin Ellison, and Human Resources Director Michael Limbert to inform them he had not heard from Hernandez. [Id.] Plaintiff also informed them he had been put on the PIP (which he considered retaliatory) and that he would be “filing with the EEOC in October.” [Id.] Because Beaver was on leave at the time of Plaintiff's email, it was forwarded to Briscoe, who then contacted Plaintiff about his August 17, 2018 email and his concerns regarding retaliation. [#46-5.] Thus, Plaintiff both mischaracterizes this evidence-the investigation was not ongoing-and fails to establish a disputed issue of material fact as to pretext with these circumstances.
The Court also notes, in his conclusion on pretext, Plaintiff says: “Based on all of the above, there is sufficient evidence to raise substantial doubt” about Lowe's nondiscriminatory justifications. [#43.] It is unclear whether Plaintiff refers simply to the foregoing section of his brief, or if he is incorporating the entirety of the preceding brief-which includes his introductory remarks and a recitation of background facts. To the extent Plaintiff attempts to engage in “shotgun briefing, ” the Court is under no obligation to cobble together arguments for Plaintiff which he failed to analyze or support with case law. See United States v. Hunter, 739 F.3d 492, 495 (10th Cir. 2013) (cursory argument not meaningfully developed by any analysis or citation is deemed waived).
The Court makes one observation with respect to Plaintiff's contention his PIP was overbroad. [#46 at ¶59.] In support of this argument, he cites an email from Hernandez to the Store's Managers, stating he “had concerns with the depth of the weekly feedback we are giving to Jonathan.” [#44-16.] But as evidenced by the plain language of the email, the subject of Hernandez's concern was the depth of feedback being given to plaintiff regarding his progress under the PIP. It was not a comment on the specificity, or lack thereof, of the actual plan. And Plaintiff has presented no comparator PIPs to demonstrate what an appropriately detailed plan would look like. Therefore, Plaintiff fails to create a disputed issue of fact as to this issue.
Without evidence to raise a dispute of material fact concerning pretext, the Court is left with only Plaintiff's subjective belief, which is insufficient to warrant submitting the case to a jury. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970-71 (10th Cir. 2017). It is not this Court's role to “second guess the business judgment of the employer.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017). Instead, the inquiry is “whether Defendants honestly believed the legitimate, nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs.” Id. (citing Johnson v. Weld Cty., 594 F.3d 1202, 1217 (10th Cir. 2010)) (internal punctuation omitted). Here, the undisputed evidence shows Lowe's employment decisions were due to Plaintiff's performance and his failure to improve under the PIP. [#46 at ¶¶54, 57-58, 70, 78, 80.] Without any evidence of pretext, Lowe's is entitled to judgment in its favor on Plaintiff's claims of discrimination.
B. Retaliation
Plaintiff's claim of retaliation fails for the same reasons as his discrimination claim. See E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1038-39 (10th Cir. 2011). (where the plaintiff has no direct evidence of discrimination, the Court analyzes a claim of retaliation under the ADA pursuant to the McDonnell Douglas burdenshifting framework). Lowe's has come forth with a nonretaliatory reason for Plaintiff's termination, which Plaintiff has failed to rebut with evidence of pretext. Lowe's should receive judgment its favor on this claim.
For these reasons, the Court RECOMMENDS the Motion for Summary Judgment [#40] be GRANTED and judgment be entered in Lowe's favor.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge and waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).