Opinion
Case No. 98-4093-DES
September 28, 2000
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Summary Judgment (Doc. 36) filed pursuant to Fed.R.Civ.P. 56. This is an action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., in which plaintiff claims that his termination from defendant's employment was motivated by his Puerto Rican ancestry. Additionally, plaintiff contends that his termination was in retaliation for his previous charge of discrimination levied against defendant. For the reasons set forth below, defendant's motion is granted.
STANDARD OF REVIEW
Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must examine the factual record and reasonable inferences therefrom in a light most favorable to the party who opposes summary judgment. Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).
The defendant, as the moving party, has the initial burden to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party meets this burden, the burden shifts to the plaintiff to identify specific facts that show the existence of a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Summary judgment is typically not appropriate when the case implicates a party's intent or state of mind. The court notes, however, that "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829 (1985) Therefore, in Title VII cases, summary judgment is appropriate when the applicable standards are met. Id.
FACTUAL BACKGROUND A. Employment Background
Ramon Ortiz ("Ortiz") began working for Western Resources' predecessor corporation, Kansas Power Light, in 1972. From approximately 1987 till his termination in 1996, Ortiz was employed as a Combination Electric and Gas Serviceperson at the service center located in Topeka, Kansas. His duties included: reading gas and electric meters, testing meters, removing and replacing gas and electric meters, investigating gas leaks, checking for carbon monoxide accumulation, and evaluating consumer complaints. Interaction with Western Resources' customers was an integral element to Ortiz's employment duties.
B. Incident Preceding Ortiz's Termination
On the afternoon of November 26, 1996, Ortiz, while on the job and driving one of Western Resources' vehicles, received a call to meet a coworker at a specified location within Topeka, Kansas. Upon arriving at the location, the coworker informed Ortiz that a basketball backboard and pole were laying in a nearby yard close to the residence's trash receptacle. The basketball backboard and pole belonged to the homeowner, Rodney French. There is some dispute as to the exact location of the basketball equipment in relation to the French's trash bin, sidewalk, and parkway. There is sufficient evidence to surmise that the equipment was laying in the French's yard near the sidewalk, and at least a portion of the equipment was in close proximity to the trash receptacle.
Upon approaching the French's home, Ortiz asked some children playing in the street whether the basketball equipment was trash. According to Ortiz, the children answered affirmatively, yet it is uncontested that none of these children claimed to be a resident of the French household. Ortiz then proceeded to approach the home's front door and ring the doorbell — supposedly to ascertain from the owners whether the equipment was being discarded. Unfortunately, no one was home. Next, Ortiz began to dismantle the basketball equipment in an effort to load it into the Western Resources van. At this point, approximately ten after three, Mr. French's teenage daughter, Jolene French, arrived home via the school bus. It is uncontested that at this point, Ortiz had the basketball goal inside the company van.
Ms. French immediately inquired into Ortiz's activities. Western Resources contends that Ms. French then went inside the house to telephone her father. Ortiz claims that it was his suggestion that Ms. French call her father. Regardless of her motivation, Ms. French attempted to contact her father to no avail. Ms. French returned to the front-yard and reasserted her belief that the basketball equipment was not trash. Ortiz then removed the goal from the company van, replaced it on the pole without tightening it, and drove off. Ortiz claims that at all times he maintained a good-faith belief that the basketball equipment was rubbish.
Upon learning of these events, Mr. French decided to lodge an oral complaint with Western Resources. Mr. French's complaint was eventually routed to Larry Wendling, Western Resources' Superintendent of Gas Distribution and Ortiz's supervisor. Mr. Wendling visited with Mr. French and his daughter in person at their residence regarding the incident. Mr. Wendling complimented Ms. French for her observation skills and gave her a basketball and a company sweatshirt.
The decision to terminate Ortiz's employment was principally made by the late Ken Wymore, then President of Kansas Gas Services. Steve Long, Manager, Labor Relations and Larry Wendling contributed to the decision. Ortiz was discharged from his employment at Western Resources on December 5, 1996. Western Resources contends that this decision was made in response to the incident at the French's home and because of Ortiz's prior personnel record.
C. Ortiz's Prior Grievances
On March 31, 1995, Ortiz received a corrective action regarding five instances of rude behavior to customers within a prescribed period of time. Ortiz challenged this action claiming that it was untimely and lacked the necessary verbal counseling typical in these cases. In his response to the corrective action, Ortiz did not allege any racial or ancestral discrimination.
On August 14, 1995, Ortiz filed a grievance contending that he did not receive the appropriate level of pay during a particular shift. The grievance form contained no allegations of discrimination, however, Ortiz claims that he did not receive the proper pay because of discrimination. According to Ortiz, his union steward knew that he was being discriminated against but chose not to include the allegation in the grievance form.
On March 18, 1996, Ortiz filed a grievance contending that Western Resources failed to properly bid a service foreman position. Again, although the grievance form contains no allegations of discrimination, Ortiz claims he was unable to convince union officials to reflect his concerns about discrimination in the written grievance.
On April 25, 1996, Ortiz did file a charge of discrimination with the Kansas Human Rights Commission ("KHRC"). In this charge, Ortiz claims that Western Resources' refusal to select a service foreperson at the Topeka service center was racially or ancestrally motivated. Specifically, Ortiz alleged that Western Resources had not promoted an employee because all of those eligible for the position were Hispanic.
Ortiz filed another grievance on December 9, 1996. This final grievance concerned his termination. Once again, the grievance does not mention any allegation of discrimination, but Ortiz asserts that his termination was the result of discrimination.
DISCUSSION Discrimination Claim
In this case, Ortiz claims he was discharged because of his ancestry. Under Title VII, a plaintiff must prove that he or she was the victim of intentional discrimination. See Equal Employment Opportunity Comm'n v. Wiltel, Inc., 81 F.3d 1508, 1513 (10th Cir. 1996) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). Ortiz may carry this burden in one of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (internal quotation marks and citation omitted).
Concerning the alleged discrimination on the part of Western Resources, Ortiz offers no direct evidence, i.e., "`evidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption.'" Id. (quoting Black's Law Dictionary 460 (6th ed. 1990)) (alterations in original). The court, therefore, must analyze his indirect evidence of discrimination under the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, a plaintiff has the initial burden of satisfying the prima facie requirements of a Title VII discrimination case. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If the plaintiff can meet this burden, then the defendant must offer a "facially nondiscriminatory reason for the challenged employment action." Shorter, 188 F.3d at 1208 (citation omitted). Finally, if the defendant can offer a nondiscriminatory reason, then the burden shifts back to the plaintiff to show that defendant's proffered reason is merely pretextual. Id.
Prima Facie Case
To establish a prima facie case of discriminatory discharge Ortiz must show: "(1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge." Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (citing Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999)).
Western Resources seeks summary judgment claiming that Ortiz has failed to prove a prima facie case of discrimination. It is uncontested that Ortiz is a member of a protected class, and Western Resources concedes that Ortiz was discharged. Western Resources, however, argues Ortiz has failed to satisfy the second and fourth prongs. With respect to the second prong, Western Resources refers to the five behavior complaints levied against Ortiz and the corrective action that followed, arguing Ortiz's work performance was unsatisfactory. Additionally, Western Resources notes Ortiz was discharged because he was involved in the unauthorized removal of a customer's property — certainly an activity that constitutes unsatisfactory work performance.
Western Resources' arguments fail for several reasons. First, the incident involving the basketball equipment may not be considered at this phase of the court's analysis, for an employer's proffered reason for taking an adverse employment action should not be considered in assessing the sufficiency of a plaintiff's prima facie case. See MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1119-20 (10th Cir. 1991). Furthermore, the Tenth Circuit has held that a plaintiff:
may make out a prima facie case of discrimination in a discharge case by credible evidence that she continued to possess the objective qualifications she held when she was hired, or by her own testimony that her work was satisfactory, even when disputed by her employer, or by evidence the she had held her position for a significant period of time.Id. at 1121 (citations omitted). In the present case, Ortiz has offered evidence that his immediate supervisor prior to his discharge, John Rodman, considered him to be an "average worker." (Rodman Dep. at 5) Additionally, Ortiz had, prior to his termination, held his position for approximately ten years. Considering the length of Ortiz's employment with Western Resources and his average rating by his supervisor, the court finds that Ortiz has met the second prong of the prima facie case.
Western Resources next argues that Ortiz cannot satisfy the fourth element because Western Resources made no attempt to fill the position left vacant by Ortiz's termination. According to Western Resources, no effort was made to hire replacement personnel up through the time Western Resources' Gas Service division was divested to Oneok, Inc., one year later, in November 1997. Western Resources does not present evidence, however, that its failure to actively seek a replacement was because the position was being eliminated or because Western Resources was downsizing the particular department. The prima facie requirements exist primarily to force plaintiffs to prove they were not terminated for the most common business reasons: lack of qualifications and elimination of their position. See Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir. 1999). Without any proffered evidence, absent an alleged decision not to pursue a replacement, the court will not rule that Ortiz's position was eliminated. Therefore, because Ortiz's position remained open for a substantial period of time subsequent to his termination, Ortiz has satisfied the fourth prima facie requirement.
Facially Nondiscriminatory Justification for Discharge
Western Resources asserts that Ortiz was discharged for violating a company policy when he attempted to remove a customer's property without authorization. According to Western Resources, the incident involving the French's basketball equipment was wholly unacceptable and justified the termination of Ortiz. The record before the court is sufficient to demonstrate Western Resources' sincerity concerning the seriousness of Oritz's conduct. The court finds that Western Resources has met its burden of producing a facially nondiscriminatory reason for discharging Ortiz.
3. Pretext
If Ortiz can demonstrate that Western Resource's proffered justification for termination is pretextual, i.e., unworthy of belief, then his claim can survive the summary judgment motion. See Kendrick, 220 F.3d at 1230 (citing Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2109 (2000)). In Kendrick, the Tenth Circuit identified three ways in which the typical plaintiff can show that a termination was pretextual:
(1) with evidence that the defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff. A plaintiff who wishes to show that the company acted contrary to an unwritten policy or to company practices often does so by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.
220 F.3d at 1230 (citations omitted).
Ortiz argues Western Resources' reason for termination was pretextual under two theories: (1) the allegation that he attempted to take a customer's property is false; and (2) he was treated differently than similarly-situated, non-minority employees.
a. Removal of Customer's Property
The only issue of fact in dispute in regards to the incident taking place at the French home is the exact location of the basketball goal in relation to the parkway and trash receptacle. Ortiz contends that the basketball goal and pole were by the trash receptacle while Western Resources claims that the equipment was laying across the French's sidewalk and into their yard. The court finds that this issue is not material and will assume for this consideration that some part of the equipment was laying in close proximity to the trash receptacle. Ortiz argues that the allegation that he attempted to take the equipment is false because of his professed good-faith belief that the basketball equipment was trash. It is uncontested, however, that Ortiz did not have the French's permission to remove the basketball equipment. It is also uncontested that but for the arrival of Ms. French, Ortiz would have left with the basketball equipment. Ortiz concedes that the removal of customers' property without permission constitutes a violation of company policy. (Ortiz Dep. at 118) The fact that Western Resources sent an executive, in person and bearing a gift, to the French home, speaks greatly to the seriousness of the incident in the minds of Western Resources management. Western Resources believed that Ortiz made a serious lapse in professional judgment, which warranted his termination.
Ortiz's only evidence supporting his claim that this incident was merely a pretext for his discharge is his insistence in his belief that the equipment was rubbish. Ortiz provides no evidence that Western Resource conducted a sham investigation or that any decision-maker within Western Resources was influenced by discriminatory motives. The undisputed evidence shows that Ortiz attempted to abscond with a customer's property with the aid of Western Resource's equipment, while on "company time." Due to the lack of proffered evidence, the court finds that Ortiz has failed to meet his burden to show that Western Resource's suggested reason for terminating him was pretextual. See Shorter, 188 F.3d at 1209 . See also Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997) ("The mere existence of a scintilla of evidence in support of the non-movant's positions is insufficient to create a dispute of fact that is `genuine'. . . .")
b. Similarly-situated Employees
As mentioned above, a plaintiff may show that a proffered reason for termination is pretextual by offering evidence of similarly-situated, non-protected employees who violated comparable policies and were disciplined in a different manner. To be considered similarly-situated, the employees must deal "with the same supervisor and [be] subject to the `same standards governing performance evaluation and discipline.'" Kendrick, 220 F.3d at 1232 (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997)).
The Tenth Circuit has, however, made clear that not every difference in treatment will establish a discriminatory intent. Title VII does not make unexplained differences in treatment per se illegal nor does it make inconsistent or irrational employment practices illegal. It prohibits only intentional discrimination based upon an employee's protected class characteristics.
Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations. . . .
What the law does require is that an employer not discriminate against an employee on the basis of the employee's protected class characteristics.
Equal Employment Opportunity Comm'n v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992).
Ortiz proffers several examples of similarly-situated, non-minority Western Resources employees who allegedly violated company policies of comparable seriousness and received less severe discipline. The first is a Caucasian male gas service employee who, Ortiz alleges, was caught stealing company property. The employee was observed placing items from his company vehicle into his personal vehicle. The record before the court, however, indicates Western Resources' management could not substantiate whether the property placed in the vehicle was actually company property. Therefore, Charles Brunner, Superintendent of Gas Services, gave the employee a written warning indicating that company property was not to be removed without authorization.
The second service employee, a Caucasian male, allegedly removed customers' property without receiving subsequent disciplinary action. In particular, Ortiz claims that the employee removed a chainsaw, a lawnmower, and a basketball goal from customers' residences. Ortiz, however, claims no personal knowledge of the events and recounts the incidents only through statements made by the employee to Ortiz. As such, the statements are hearsay and will not be considered by the court. See Jefferies v. State of Kansas, 147 F.3d 1220 (10th Cir. 1998); Ritchie Enters. v. Honeywell Bull, Inc., 730 F. Supp. 1041, 1043 (D.Kan. 1990). Ortiz does admit, that to his knowledge, no member of Western Resources' management was aware of the employee's activities. Additionally, he was asked concerning the employee's alleged theft: "If he had not had the permission of these individuals to take this property, under the company's polices, would he have violated them?" Ortiz responded, "Yes." (Ortiz Dep. at 118).
The third incident, also involving a Caucasian male employee,) concerned the removal of company property. According to Ortiz, the employee absconded with scrap metal belonging to Western Resources and received no subsequent disciplinary action. Western Resources concedes that the employee did remove the scrap metal, yet Western Resources contends that the employee had permission to take the scrap metal.
No evidence is presented concerning the employee's duties or department within Western Resources.
The fourth and final incident proffered by Ortiz involved a violation of company policy by a female Caucasian employee. According to Ortiz, the employee, apparently a telephone operator, failed to properly follow procedure concerning the notification of service personnel in response to a reported gas leak. Ortiz claims that her delay in dispatching personnel endangered the lives of Western Resources' customers, yet the employee only received a temporary suspension. Western Resources concedes that the employee violated company policy and was suspended without pay.
The court finds that none of the above proffered incidents may be used to establish pretext in Ortiz's case. The factual accounts of all four employee violations are substantially dissimilar from Ortiz's violation. In the first and third example, the employees were accused of removing company property not customer property. The "similarly-situated" standard does not require that the employees have violated the identical policy or rule, yet the violations must be of equal seriousness. See Kendrick, 220 F.3d at 1232; Elmore v. Capstan, 58 F.3d 525, 530 (10th Cir. 1995).
Ortiz contends that the theft of company property is of equivalent seriousness when compared to the theft of customer property. Western Resources asserts that the theft of customer property is a more serious violation and should not be compared to the theft of company property. In considering this dispute, the court should not supplant its judgment for that of Western Resources, for "a company must be allowed to exercise its judgment in determining how severely it will discipline an employee for different types of conduct." Kendrick, 220 F.3d at 1233. The court, therefore, finds that the two violations are dissimilar and will not require Western Resources to view the violations as equally unacceptable. See id. (holding that the defendant company must be allowed to exercise its own judgment in determining whether employee violations are equivalent). Finally, the comparison between the violations is inappropriate considering that in both proffered examples no actual violation was ever proven. Compare this to Ortiz's violation, which was substantiated by Mr. French and by Mr. Ortiz's own admission.
The fourth incident is inapplicable because it involved a distinct and separate department within Western Resources. See Aramburu, 112 F.3d at 1404. No evidence was offered showing that this employee was under the same supervisors or disciplinary code as Ortiz. See Kendrick, 220 F.3d at 1233 ("Different supervisors will inevitably react differently to employee insubordination.").
The only incident actually involving the removal of customer property by similarly-situated service personnel is not properly before the court. However, even if before the court, the incident is easily distinguishable due to the fact that Western Resources allegedly never had knowledge of the employee's activities. Accordingly, the incident cannot be used to analyze the disciplinary decisions made by Western Resources.
The court finds that Ortiz has not presented sufficient evidence showing that the reason for his termination was pretextual. Ortiz has, therefore, failed to satisfy the third and final phase of the McDonnell Douglas analysis. Finding no genuine issue of material fact concerning Ortiz's discrimination claim, the court finds that summary judgment is proper.
Retaliation Claim
Apart and distinct from Ortiz's claim of discriminatory discharge, he presents a claim of retaliatory discharge. He contends that Western Resources terminated him because of, and in response to, his charge of discrimination. Once again, the McDonnell Douglas analytical framework guides the court's analysis. See, e.g., Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
1. Prima Facie Case
To establish a prima facie case of retaliation, Ortiz must show:
(1) [he] was engaged in a protected activity; (2) [he] was subjected to adverse employment action subsequent to or contemporaneous with the protected activity; and (3) a causal connection between the protected activity and the adverse employment action.Anderson, 181 F.3d at 1178. It is uncontested that Ortiz's filing with the KHRC in April 1996, constituted a protected activity. See McCue v. State of Kansas, 165 F.3d 784, 789 (10th Cir. 1999). It is also uncontested that Ortiz was terminated subsequent to this filing. Western Resources contends that no material fact suggests that a causal connection existed between Ortiz's filing a charge of discrimination and his termination.
A "causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982). See also Candelaria v. EG G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10th Cir. 1994). In the present case, however, approximately seven months separated Ortiz's charge of discrimination and his subsequent termination. Such a length of time is insufficient, standing alone, to establish an inference of causation. Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) ("the four month time lag between [plaintiff's] participation in protected activity and his termination by itself would not be sufficient to justify an inference of causation"). See also Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding that a three month period is insufficient, by itself, to establish causation). Cf. Kendrick, 220 F.3d at 1234 (holding plaintiff failed to establish a causal connection between his participation in protected activity and discharge because "the complaints were remote in time"). Ortiz, therefore, must produce additional evidence to establish causation. See Conner, 121 F.3d at 1395; Anderson, 181 F.3d at 1179.
The case of Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10th Cir. 1996), cert. denied, 518 U.S. 1019 (1996), is illustrative of how a plaintiff may, with the introduction of additional evidence, successfully satisfy the causation burden. In Marx, the plaintiff produced evidence, which showed a pattern of "retaliatory conduct" following his participation in a protected activity. Cf. Richmond, 120 F.3d at 209 (finding no pattern of conduct when plaintiff presented only one plausible incident of retaliatory conduct).
From the time Ortiz filed his charge in April 1996, to his termination in December 1996, he presents only one incident of possible retaliatory conduct. In May 1996, Ortiz filed a grievance because he was denied a foreman upgrade. Ortiz claims that he was denied the upgrade because of his ancestry, yet the grievance form is devoid of any allegations of discrimination. Ortiz contends that the union official knew the denial was the product of ancestral discrimination but refused to include that fact in the grievance form. No other evidence is presented, which would demonstrate a pattern of retaliatory conduct. Considering the lack of evidence presented by Ortiz, the court finds that he has failed to establish a pattern of retaliatory conduct.
Ortiz also directs the court to the numerous union grievances he filed as the motivation for Western Resources' allegedly retaliatory discharge. Once again, however, the grievances, including the one filed after his termination, contain no allegations of discrimination. Oritz's assertion that the grievances contain an undisclosed discrimination claim is not sufficient to produce a genuine issue of fact. Therefore, because Ortiz has failed to establish the required causal connection, he has not produced a prima facie case of retaliatory discharge. Summary judgment is therefore appropriate. See Kelley v. Goodyear Tire and Rubber Co., 220 F.3d 1174, 1179 (10th Cir. 2000) (upholding summary judgment when plaintiff failed to establish a prima facie case for retaliation).
Without a showing of a prima facie case, the court is not required to continue to the second and third phase of the McDonnell Douglas framework. The court does note, however, that its prior analysis under Ortiz's discrimination claim is equally applicable to the retaliation claim, so even if Ortiz could establish a prima facie case, his claim would fail under the final phase of McDonnell Douglas.
Conclusion
Under the discriminatory discharge claim, Ortiz has failed to produce sufficient evidence showing that Western Resources' reason for terminating him was pretextual in accordance with the McDonnell Douglas framework. Under the retaliation claim, Ortiz has failed to produce a prima facie case. For these reasons, the court finds that summary judgment is appropriate for both claims.
IT IS THEREFORE BY THIS COURT ORDERED that the defendant's Motion for Summary Judgment (Doc. 36) is granted.