Opinion
CIVIL ACTION No. 02-2003-CM
June 10, 2003.
MEMORANDUM AND ORDER
This case is before the court on defendant's Motion for Summary Judgment (Doc. 18), which defendant filed on September 12, 2002. On October 30, 2002, after plaintiff, who appears pro se, failed to respond to the Motion for Summary Judgment, the court issued an Order to Show Cause why the court should not grant defendant's motion as unopposed. Plaintiff responded to the Order to Show Cause on November 18, 2002, stating that he was unaware that he was required to respond to the Motion for Summary Judgment. The court found, on the same day, that plaintiff's lack of knowledge was excusable neglect, and ordered him to file a response to defendant's Motion for Summary Judgment by December 6, 2002.
On December 6, 2002, plaintiff submitted a response that included nothing more than allegations, motions, and an order signed by the Honorable Ortrie Smith of the District Court of the Western District of Missouri, each of which was unrelated to the facts of this case. All of these documents relate to defendant's attorney, Michael Lynn Bennett, and his suspension from practice in the Western District of Missouri. Because plaintiff appears pro se, the court allowed plaintiff a third opportunity to respond to the Motion for Summary Judgment. On May 27, 2003, the court ordered plaintiff to file a response by June 4, 2003, or risk the court's treatment of defendant's Motion for Summary Judgment as unopposed. On June 4, 2003, plaintiff filed his response to the court's May 27, 2003 order. The response contains no references to controverted facts. Instead, plaintiff referenced four quotes from various legal sources with notes to see his deposition transcript — either in its entirety or in 30-page sections — for support. Plaintiff does not cite any specific facts raised in that deposition, nor does he dispute any of the facts articulated in defendant's Statement of Uncontroverted Facts. Plaintiff also attaches his Record of Termination, a document that includes nothing more than the dates of hire and termination and an indication that plaintiff is not eligible for rehire because his termination occurred during his 120-day probationary period. For the reasons stated below, defendant's motion is granted.
It is not the court's responsibility to search through volumes of testimony to find facts supporting plaintiff's case. Even if it were, the cases and statutes plaintiff cites have little or no connection with this case. To the extent they are connected, the citations actually support defendant's position.
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56. Plaintiff has submitted no affidavits to support his allegations. Plaintiff's complaint and his Responses to Defendants' Motion for Summary Judgment set forth only a few assertions of fact which, generally, have no relation to this case. To the extent plaintiff sets forth any relevant assertions, plaintiff does not disclose the means of plaintiffs' personal knowledge of those facts. Cf. Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits . . . must set forth specific facts showing that there is a genuine issue for trial."). The court will therefore exclude from consideration those factual contentions which contain no support in the record. See H.B. Zachry Co. v. O'Brien, 378 F.2d 423, 425 (10th Cir. 1967) (conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment).
Defendant hired plaintiff as a morning cook in January 2000. At the time he was hired, Sandy Moore, a Caucasian woman, trained plaintiff to perform his duties. During this training, Ms. Moore trained plaintiff to wash dishes. Plaintiff washed the breakfast dishes every day that he worked for defendant until his last day, May 9, 2000.
On May 9, 2000, plaintiff refused to wash the breakfast dishes. Plaintiff's supervisor instructed plaintiff that he would be terminated if he refused to wash the dishes. Plaintiff answered that he chose termination over dishwashing.
Plaintiff alleges that no other cooks were required to wash dishes. Plaintiff specifically states that the cooks who worked in the evening did so with the help of at least one dishwasher. However, plaintiff does not claim to have ever worked evenings while employed by defendant. Plaintiff has not introduced any basis for personal knowledge regarding evening staffing issues, so the court will not consider the allegation.
Plaintiff has also admitted that he does not know who preceded him as morning cook or whether that person washed dishes. He claims that no other morning cooks washed dishes. However, he admits that his training included dishwashing. He also admits that he washed dishes every day until the day he was terminated.
Plaintiff's contentions are further disputed by the affidavits of Ms. Moore, Mike Naseri, a man of Middle Eastern descent, and Wanda Wroebl, a Caucasian woman, who all worked as cooks for defendant throughout plaintiff's employment. Each of these affiants state that all cooks wash dishes. Specifically, Ms. Moore, Mr. Naseri and Ms. Wroebl state that, when they each work as morning cook, they wash dishes.
Two other employees also state that the morning cook's duties have always included dishwashing. James Ross, who was plaintiff's supervisor, attests that he has been the dietary services manager for defendant for over five years and that, since he has held that position, it has always been the morning cook's duty to wash dishes. Finally, Elizabeth Latorre attests that she has been the facility administrator for defendant for over five years and that, since she has held that position, the morning cook has always been required to wash dishes. Plaintiff has produced no evidence to contradict these statements.
Plaintiff also alleges that he was terminated in retaliation for complaining about discrimination. However, both Ms. Latorre and Mr. Ross deny that plaintiff ever complained about discrimination prior to his discharge. In fact, plaintiff's own pleadings indicate that he requested a raise, but those pleadings do not indicate that he ever complained about not receiving a raise. In plaintiff's original EEOC intake questionnaire, plaintiff indicates that he requested a raise because he felt he was doing more work than his job description entailed. Plaintiff did not indicate that he received disparate pay or was denied a promotion because of his race.
Finally, plaintiff asserts that Mr. Ross made a racial epithet to Joan Williams, a fellow employee, regarding her African-American husband. According to plaintiff, Mr. Ross stated that he did not want "that black son-of-a-bitch" calling the facility everyday. (Def.'s Statement of Uncontroverted Facts ¶ 20.) At the time Mr. Ross allegedly made the comment, Ms. Williams and her husband were going through divorce proceedings. Plaintiff does not allege that defendant or its employees ever made any other racially derogatory statements. Defendant also admits that Mr. Ross's statement was made in jest and that Mr. Ross and Ms. Williams often joked in that manner.
II. Analysis
A. Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. 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.
The court acknowledges that plaintiff appears pro se and his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even pro se plaintiffs must present some "specific factual support" for their allegations. Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
B. Direct Evidence of Discrimination
To recover on an employment discrimination claim based on race, a plaintiff must first establish a prima facie case either by introducing direct evidence of discrimination or by introducing circumstantial evidence of discrimination sufficient to satisfy the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). Plaintiff's only attempt at introducing direct evidence that he was discriminatorily terminated is his allegation regarding the comment made by Mr. Ross to Ms. Williams about her husband. Plaintiff admits that the comment was made in jest and that Ms. Williams did not act offended by Mr. Ross's comment.
Statements showing "an existing policy which itself constitutes discrimination" are direct evidence of discrimination. Ramsey v. City County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990). In contrast, "an offer of . . . discriminatory statements, from which it was argued that the determining cause of an employment decision might be inferred, [is] not direct evidence of causation on the employment decision." Id. (citing Furr v. ATT Techs., Inc., 824 F.2d 1537, 1549 (10th Cir. 1987)).
The court finds that Mr. Ross's statement, though inappropriate, is not direct evidence that plaintiff was terminated or required to wash dishes based on his race. On its face, the comment is a statement of Mr. Ross's personal opinion. The evidence does not show any connection between Mr. Ross's comment about Ms. Williams' soon-to-be ex-husband and plaintiff's termination. Further, there is no evidence that Mr. Ross acted with discriminatory intent when he fired plaintiff. The court finds that this statement does not raise an inference of discriminatory intent. Even if the statement did raise such an inference, this type of statement is not direct evidence of discrimination satisfying plaintiff's burden. See Heim v. State of Utah, 8 F.3d 1541, 1546-47 (10th Cir. 1993) (holding that, although one might derive an inference of discriminatory intent from a statement denigrating women as a class, that inference did not support plaintiff's claim that the defendant discriminated against plaintiff individually or acted with discriminatory intent).
C. McDonnell Douglas Burden-Shifting Analysis
In employment discrimination cases where, as here, a plaintiff cannot prove direct discrimination, the court applies the burden-shifting framework set forth in McDonnell Douglas to determine whether summary judgment is appropriate. 411 U.S. at 793.
Under the McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of race discrimination. Id. at 802. The burden then shifts to defendant to articulate some legitimate, nondiscriminatory reason for terminating plaintiff's employment. Id. The burden then reverts to the 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 — i.e., unworthy of belief." Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 327 (10th Cir. 1996). "Pretext can be shown by 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." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (internal citations omitted). However, "[m]ere conjecture that [defendants'] explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Id. (citing Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).
D. Plaintiff's Prima Facie Discrimination Case
Plaintiff brings his case under Title VII. It is undisputed that plaintiff is a member of a protected class under Title VII, which prohibits discrimination on the basis of race. 42 U.S.C. § 2000 et. seq. Plaintiff claims that defendant required plaintiff to wash dishes, even though no other cooks washed dishes, solely because plaintiff is African-American. Plaintiff also argues that he did not receive a raise to which he was entitled and that defendant terminated his employment because of his race. Plaintiff alleges retaliation, but does not state which action was allegedly retaliatory. The court will, therefore, examine all of plaintiff's claims in light of retaliation and disparate treatment standards.
1. Retaliation
To make a prima facie case for a Title VII retaliation claim, the plaintiff must show "that (1) he engaged in protected opposition to discrimination, (2) [his] employer subjected [him] to an adverse employment action subsequent to the protected activity, and (3) a causal connection exists between the protected activity and the adverse employment action." Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). "A causal connection may be shown by 'evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.'" O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (quoting Burrus v. United Tele. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982)).
Plaintiff cannot satisfy the three elements of a retaliation claim. Viewing the facts in the light most favorable to plaintiff, there is no evidence that plaintiff ever engaged in protected opposition to discrimination. The record shows that plaintiff requested a raise as a reward for his hard work. The record also shows that plaintiff never received such a raise. There is no evidence in the record showing that plaintiff ever complained about not receiving a raise. There is also no evidence that plaintiff ever complained that he was being discriminated against. Without participation in protected opposition to discrimination, there can be no behavior against which defendant could retaliate. Because plaintiff fails on the first element of this claim, he likewise cannot show that his actions resulted in adverse employment action or that there is a causal relationship. The court finds that there is no genuine issue of material fact regarding plaintiff's retaliation claim.
2. Disparate Treatment
To prevail on a disparate treatment claim under Title VII, a plaintiff must show that the discrimination complained of was intentional. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999). Disparate treatment analysis is applied to claims alleging "[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). To make a prima facie showing of disparate treatment, the plaintiff must show that: "'(1) [he] is a member of the class protected by the statute; (2) [he] suffered an adverse employment action; (3) [he] was qualified for the position at issue; and (4) [he] was treated less favorably than others not in the protected class.'" Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315-16 (10th Cir. 1999) (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998)).
The first element is satisfied, as the parties do not dispute that plaintiff is a member of a protected class. Plaintiff's claims regarding the second element, that of an adverse employment action, have two components; plaintiff argues that the dishwashing requirement and his termination were adverse employment actions. There is no evidence that plaintiff's duty to wash dishes was an adverse employment action. The uncontroverted evidence shows that every one of defendant's morning cooks for at least the past five years has washed dishes. Washing dishes is a part of the job, not a punishment. Therefore, plaintiff cannot make a prima facie showing that his dishwashing duties resulted from disparate treatment. However, there is no question that termination is an adverse employment action, so the court proceeds to the third element of plaintiff's termination claim.
Plaintiff argues that he was qualified for and satisfied all the normal conditions of his position. Defendant argues that dishwashing was a component of that position and that defendant was disqualified when he refused to wash dishes. All evidence in the record supports defendant's argument. All morning cooks wash dishes. If an employee was unwilling or unable to wash dishes, that employee would not be qualified to fulfill the duties of the position and would not be satisfying the normal conditions of the job. Plaintiff's claims fail on this element.
Finally, even if plaintiff was qualified for the position, he has made no showing that he was treated less favorably than others not in a protected class. The record shows that all morning cooks were required to wash dishes. Plaintiff has presented no evidence based on personal knowledge that other non-minorities who worked in the morning cook position were not required to wash dishes. Moreover, plaintiff's own admissions show that plaintiff was fired for insubordination. Plaintiff refused to wash dishes. Defendant gave plaintiff a choice: wash dishes or be fired. Plaintiff chose to be fired. Plaintiff has introduced no evidence that other employees were treated differently when they refused to perform required tasks. Plaintiff's claims fail on this fourth element. Therefore, plaintiff fails to establish his prima facie case of discrimination.
D. Legitimate Reasons and Pretext
In this case, the court concludes that defendant has proffered a legitimate, nondiscriminatory reason for plaintiff's termination. Plaintiff himself articulated defendant's justification for termination. Plaintiff admits that he chose to be fired rather than wash dishes. In fact, he states that he chose termination because he "wasn't going to wash dishes anymore." (Def. Statement of Uncontroverted Facts ¶ 7.) In so stating, plaintiff offered support that defendant had a legitimate, nondiscriminatory rationale for his discharge: his refusal to perform his assigned duties. See Nulf v. Int'l Paper Co., 656 F.2d 553, 559 (10th Cir. 1981). Therefore, plaintiff must show either that insubordination was a pretext for defendant's real reason for firing him, that he had been a victim of disparate treatment, or that defendant's discriminatory actions induced his insubordination. Id. Plaintiff has not offered evidence sufficient to support any of these arguments. Defendant's articulated legitimate reason is free from implausibilities, inconsistencies, incoherencies and contradictions. The court concludes that a reasonable factfinder could not find defendant's legitimate, nondiscriminatory reason for terminating plaintiff's employment unworthy of credence.
IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 18) is granted.