Dodson v. Flying Dove, Inc. d/b/a IHOP, No. 5:2018cv04034 - Document 38 (D. Kan. 2019)
Court Description: MEMORANDUM AND ORDER granting 34 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 4/30/19. (msb)
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Dodson v. Flying Dove, Inc. d/b/a IHOP Doc. 38 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS EMORI DODSON, Plaint iff, v. No. 18- 4034- SAC FLYI NG DOVE, I NC. d/ b/ a I HOP # 2045, Defendant . MEMORANDUM AND ORDER The plaint iff Em ori Dodson brings t his Tit le VI I act ion claim ing t he defendant em ployer unlawfully reduced her hours as a food server and t hen t erm inat ed her em ploym ent on account of her pregnancy, race, gender, and/ or religion. The defendant is t he franchised operat or of t he I HOP rest aurant in Hays, Kansas, which hired Ms. Dodson in July of 2015 and t erm inat ed her in Novem ber of 2017. Ms. Dodson believes her hours were reduced and she was t erm inat ed because she was a whit e, non- Muslim wom an who was pregnant from a relat ionship wit h Mr. Abass Fares, a cook at t he rest aurant and t he brot her- in- law of t he rest aurant ’s m anager, Mr. Adham Saleh. Bot h Mr. Fares and Mr. Saleh are Arab Muslim s. The defendant m oves for sum m ary j udgm ent arguing t hat t he plaint iff’s evidence of race and religion discrim inat ion is insufficient t o st at e a prim a face case and t hat t he plaint iff’s evidence of alleged discrim inat ion on any ground is 1 Dockets.Justia.com insufficient t o allow t he j ury t o disbelieve t he defendant ’s reasons for first changing t he plaint iff’s shift s and lat er t erm inat ing her. SUM M ARY JUD GM EN T STAN D ARD S Sum m ary j udgm ent is appropriat e “ if t he m ovant shows t hat t here is no genuine disput e as t o any m at erial fact and t he m ovant is ent it led t o j udgm ent as a m at t er of law.” Fed. R. Civ. P. 56( a) . “ Only disput es over fact s t hat m ight affect t he out com e of t he suit under t he governing law will properly preclude t he ent ry of sum m ary j udgm ent .” Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 248 ( 1986) . I n deciding t he m ot ion, t he court ’s role is “ is not . . . t o weigh t he evidence and det erm ine t he t rut h of t he m at t er but t o det erm ine whet her t here is a genuine issue for t rial.” I d. at 249. The court m ay grant sum m ary j udgm ent for lack of a genuine issue when t he evidence is insufficient “ for a j ury t o ret urn a verdict ,” when “ t he evidence is m erely colorable,” or when t he evidence “ is not significant ly probat ive.” I d. I t follows t hen t hat a genuine issue for t rial exist s when “ t here is sufficient evidence on each side so t hat a rat ional t rier of fact could resolve t he issue eit her way.” Adler v. Wal- Mart St ores, I nc., 144 F.3d 664, 670 ( 10t h Cir. 1998) . The m oving part y bears t he init ial burden of showing t he absence of any genuine issue of m at erial fact . Celot ex Corp. v. Cat ret t , 477 U.S. 317, 323 ( 1986) . The burden is m et “ by point ing out t o t he court a lack of evidence for t he nonm ovant on an essent ial elem ent of t he nonm ovant ’s 2 claim .” Adler, 144 F.3d at 671. The burden t hen shift s t o t he nonm ovant t o “ go beyond t he pleadings and set fort h specific fact s t hat would be adm issible in evidence in t he event of t rial from which a rat ional fact finder could find for t he nonm ovant .” I d. ( int ernal quot at ion m arks and cit at ions om it t ed) . Such fact s “ m ust be ident ified by reference t o affidavit s, deposit ion t ranscript s, or specific exhibit s incorporat ed t herein.” I d. The court applies t his st andard drawing all inferences arising from t he record in t he nonm ovant ’s favor. St innet t v. Safeway, I nc., 337 F.3d 1213, 1216 ( 10t h Cir. 2003) . The court does not m ake credibilit y det erm inat ions or w eigh t he evidence; t hese are j ury funct ions. I d. at 1216. The Tent h Circuit has counseled t his for sum m ary j udgm ent proceedings in em ploym ent discrim inat ion cases: [ I ] n t he cont ext of em ploym ent discrim inat ion, “ [ i] t is not t he purpose of a m ot ion for sum m ary j udgm ent t o force t he j udge t o conduct a ‘m ini t rial’ t o det erm ine t he defendant 's t rue st at e of m ind.” Randle v. Cit y of Aurora, 69 F.3d 441, 453 ( 10t h Cir. 1995) . Many of t he highly fact - sensit ive det erm inat ions involved in t hese cases “ are best left for t rial and are wit hin t he province of t he j ury.” I d.; see Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 251–52, 106 S.Ct . 2505, 91 L.Ed.2d 202 ( 1986) ( “ [ T] he inquiry [ at sum m ary j udgm ent is] whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o a j ury....” ) . Consequent ly, “ in t his Circuit . . . an em ploym ent discrim inat ion suit will always go t o t he j ury so long as t he evidence is sufficient t o allow t he j ury t o disbelieve t he em ployer's [ explanat ion for t he alleged m isconduct ] .” Beaird v. Seagat e Tech., I nc., 145 F.3d 1159, 1177 ( 10t h Cir. 1998) ( Tacha, J., concurring in part ) ; see Randle, 69 F.3d at 452 ( “ [ I ] f . . . inferent ial evidence is sufficient t o allow a plaint iff t o prevail at t rial, it is surely sufficient t o perm it a plaint iff t o avoid sum m ary j udgm ent so t hat t he plaint iff can get t o t rial.” ) . Lounds v. Lincare, I nc., 812 F.3d 1208, 1220- 21 ( 10t h Cir. 2015) . 3 FACTS The court regards t he following fact s t o be uncont rovert ed for purposes of t his order and have been viewed in t he light m ost favorable t o t he plaint iff. The plaint iff Em ori Dodson ( “ Dodson” ) describes herself as a 23year old whit e Christ ian wom an living in Hays, Kansas. She worked at t he Hays I HOP rest aurant and was first hired on July 16, 2015. The rest aurant ’s m anager since June of 2014 has been Adham Saleh ( “ Saleh” ) , and his brot her- in- law, Abass Fares ( “ Fares” or “ Dave” ) worked as a rest aurant cook. Fares lived wit h Saleh bet ween July and Novem ber of 2017, and he began dat ing Dodson in August of 2017. When hired, Dodson signed a form acknowledging receipt of a copy of t he Em ployee Handbook which included rules on calling in when sick and on speaking wit h t he m anager on dut y when lat e t o work. The rules warned, “ I F you do not call or have a no call no show you will be writ t en up, 3 writ e ups result s in t erm inat ion.” ECF# 35- 8, p. 2. Dodson digit ally signed t he em ployee handbook on February 12, 2016. The rest aurant never em ployed Dodson full- t im e, and her em ploym ent occurred over t hree separat ed periods: Pe r iod First Second Third Dates 7/ 19/ 15—7/ 31/ 16 1/ 2/ 17—5/ 21/ 17 7/ 2/ 17—12/ 3/ 17 4 Ave r a ge H ou r s 16.9 hrs/ wk 7.0 hrs/ wk 20.3 hrs/ wk The second highest num ber of hours t hat t he plaint iff ever worked at I HOP during an 8- week period occurred from 8/ 14/ 17—10/ 8/ 17, when she averaged 35.2 hrs/ wk. The scheduling of Dodson’s shift s was not consist ent , except for t he last few weeks of her em ploym ent in 2017 when she worked exclusively t he day shift s on Sat urdays and Sundays. Dodson preferred working shift s wit h t he best pot ent ial for earning t ips which she regarded as t he evenings and night s on weekends. Text m essages bet ween Dodson and Saleh show t hat t he plaint iff was lat e t o work on August 13, 17, 20, and 21, and t hat t his upset Saleh. The plaint iff assert s she “ was occasionally t ardy or m issed work” but t hat she “ did not have any m ore issues t han m any of t he ot her em ployees.” ECF# 36- 1, ¶ 4. The court sust ains t he defendant ’s obj ect ions for lack of foundat ion and support ing evidence t o Dodson’s averm ent and also t o t he st at em ent in Liles’ affidavit t hat Dodson “ always showed up for her shift s,” ( ECF# 36- 2, p. 1) . ECF# 37, p. 2. Bot h affidavit s lack a foundat ion for personal knowledge. Wit h Dodson, t here is not hing t o show how she would be com pet ent t o com pare her at t endance issues wit h t hose of all ot her em ployees. Ot her t han st at ing her opinion, Dodson’s affidavit provides no support ing det ails about ot her em ployees’ at t endance issues. Liles’ affidavit fails t o est ablish a t im e fram e when she worked wit h Dodson as t o opine t hat she “ always showed up for her shift s.” Even assum ing t he dat es in Liles’ affidavit should be correct ed t o 2017, t he uncont rovert ed t ext m essages 5 exchanged bet ween Saleh and Dodson plainly cont radict Liles’ st at em ent and leaves it s support and scope in doubt . Short ly aft er st art ing her t hird period of em ploym ent , Dodson and Fares began having a sexual relat ionship, and Dodson m ade it public knowledge at t he rest aurant . Saleh observed t hat Dodson was “ a m aj or cause of workplace st ress for ot her em ployees.” ECF# 35- 1, p. 3. Em ployees t old Saleh “ t hat t hey felt t hat Dodson was ‘crazy’ or ‘psycho.’” I d. While t he plaint iff avers she was a “ good em ployee” and “ did not cause any disrupt ions at work,” she is unable t o cont rovert w hat ot her em ployees m ay have t old Saleh. ECF# 36- 1, p. 2. On August 8, Dodson t ext ed Saleh at 10: 52 pm asking if she could work t he next Thursday. ECF# 35- 12, p. 3. Saleh said he would get back wit h her and t hen asked how she was doing. I d. During t his exchange, Dodson t old Saleh t hat she was now a cert ified m ed aide and Saleh congrat ulat ed her. I d. Saleh t hen wrot e t hat Dodson, “ You are a hard worker. But crazy som et im es.” I d. Dodson responded, “ I have t o work hard now so i don’t have t o lat er. And only t he best people are.” I d. On August 29, Dodson t ext ed Saleh asking why he had t old Fares “ not t o hang out ” wit h Dodson. ECF# 35- 12, p. 18. Saleh responded: I like u and u already know t hat and I ’m always t rying t o help u out and always wanna see u doing good in your life and u were but I can’t be involved bet ween u and Dave but I ’m so sure he was so sad t o see u in t he j ail and was so worried about u and what will happen t o u, and he is m ean t o u t hat ’s m ean he do care about u and he want s t he best for u. 6 ECF# 35- 12, p. 18. This t ext evidences Saleh’s knowledge of Dodson’s arrest on August 28, 2017. Fares and Liles were passengers in Dodson’s car when she was st opped and arrest ed for driving under t he influence. A search of her vehicle yielded drugs and drug paraphernalia. Saleh avers t hat aft er Dodson’s arrest , he “ becam e increasingly worried about how Dodson’s illicit drug act ivit y was affect ing her work as well as m y hom e life.” ECF# 35- 1, p. 3. Dodson’s obj ect ions t o evidence of t his arrest as irrelevant and inadm issible are overruled, as t he evidence is relevant insofar as Saleh has t est ified he knew of t he arrest which creat ed concerns for him over t he plaint iff’s behavior and it s im pact on her em ploym ent and his hom e life. The next m orning, August 30, Saleh st art ed a t ext exchange during which Dodson t hreat ened t o kill herself and expressed concerns over t he possibilit y of her t erm inat ion. Saleh asked t o have coffee wit h her, and t he following was exchanged: Saleh: Dodson: Saleh: Dodson: Dodson: Saleh: Not hing deserve killing yourself for it . Take care. No. I know. But youre j ust going t o fire m e. I don’t t hink like t hat . Silly. I s ihop have t o close. Feeling so happy and so sad at t he sam e t im e, one would t hink it ’s a gift . Em ori u are a very nice person so don’t belit t le yourself and it ’s t im e t o keep focusing t o m ake yourself bet t er and we don’t want t o give up for any reason. ECF# 35- 12, p. 20. Saleh warned Dodson in person and t hrough t ext m essages t o keep her personal life wit h Fares out of t he rest aurant and not t o bring t heir 7 personal dram a t o work. Around 6 pm on Sept em ber 3, Dodson t ext ed Saleh t hat she could “ t ake a hint ” and would “ st art j ob hunt ing.” ECF# 35- 12, p. 21. Saleh responded wit h t his warning: Yes, you are a very good server and I don’t want t o loose you for som e silly t hings but I prefer you t o be m ore careful about your relat ion and how if it will be at work w it h no cont rol t hen it will be a problem , Fat im a and I were so careful for t hat and it should be like t hat . Just keep it out side your work zone Have a good night . I d. Lat er t hat sam e evening, Dodson began exchanging t ext m essages: Dodson: U know t here was no dram a or anyt hing bad unt il u said som et hing. Daniel and j osh had m ore crap going on t han we have at all. We cam e in happy and now it s done. Weird I t hought it d be one of us t o break m y heart . Out of all m y chaos going on t here was one t hing keeping m e sm iling. But now no, Dodson: Whit e girls are crazy. Will u ever learn lol. Saleh: Now I know Dodson: Good. Dodson: And st op m essin w our heart s Saleh: Haha Saleh: That ’s m eanie Dodson: I j ust wanna be loved for t he psycho nice lady t hat I am . ECF# 35- 12, pp. 22- 23. At 12: 18 am on Sept em ber 5, Dodson t ext ed Saleh t elling him t o inst ruct Fares t o be at t he rest aurant at 4: 30 am , or “ ihop blows lol j k.” I d. at p. 25. Her last t ext at 1: 09 am reads, “ I apologize. Thank you for all you do. Youre t he best boss ever. I ll t ake good care of ihop t onight . Lol.” I d. Two days lat er, Sept em ber 7, Dodson t ext s Saleh asking him t o t ell Fares t o respond t o her calls. The following t ext s were exchanged: Saleh: Text him , I am working right now. you guys need t o figure t hings out . I can’t be in bet ween your relat ionship. 8 Dodson: I have been m essaging him . He reads t hem and not answer. Saleh: Em ori, u need t o calm down and don’t worry about his st uff and it ’s not good now t o t alk about anyt hing cause bot h of u are crazy, and really I ’m sorry I can’t be involved t hat m uch bet ween bot of u. . . . . Dodson: That ’s what happens when he leaves shit in m y car like it s his own. Dodson: I t s m ine now. Dodson: Oh and im not done Dodson: And he shouldn’t m e scared. I t s j ust m e Dodson: I f I don’t hear from him before t om orrow he will regret it and he will feel t he guilt for t he rest of his life. ECF# 35- 12, pp. 28- 29. On Sept em ber 12, Dodson left work at 10: 23 pm . Bet ween 11 pm and 2 am , Dodson began banging on Saleh’s door at his hom e. Saleh answered t he door and observed t hat Dodson appeared t o be under t he influence of int oxicant s. She was crying t hat she want ed Fares because t hey had a falling out . Fares was hiding in Saleh’s hom e and did not com e out . The sit uat ion apparent ly dist urbed a neighbor who called t he police, but Dodson left before t he police arrived. Saleh decided t o fire Dodson aft er t his incident . On t he aft ernoon of Sept em ber 14, Dodson st art ed t ext ing Saleh: Dodson: So, even t hough I com e ur house t o get a housekey back from dave, u call t he cops, and u t hen fired m e for out side of work relat ionships and or issue. Do u want m e t o file for unem ploym ent ? You t ook t his way t oo far. And way t oo personal. Aft erall, im bruised all over and dave a worldwide . . . So what ? Saleh: First of all I didn’t call t he cops for u cause I ’m not t hat person and second I t old you m any t im es I ’m t rying t o t ake care of u 9 as m uch as I can and I believe u know t hat , but I didn’t like what happened yest erday knocking on m y door overnight act ing like t hat wit h blam ing m e about your relat ion wit h Dave and I already t old you I don’t wanna be involved on t his and I believe I helped t he last t im e and I was t rying t o be nice for bot h of u and Em ori I ’m really sorry for what ’s going on bet ween u and Dave and I prefer t o let you go cause it ’s also effect ing in t he rest aurant t oo so it ’s up t o you and u can do what ever you feel it ’s right and I wish you all t he luck. Dodson: U cant fire m e for out side of work relat ionships Dodson: I t s not affect ing t he work environm ent . Dodson: How has it affect ed t he workplace? Dodson: We didn’t fight at work and I st ay in t he front . Dodson: I f it was any ot her guy u wouldn’t have known about it u only knew bc u ‘lived wit h him ’ Dodson: I f it was anyone else, u would have had NO idea. So how is t his not personal? Dodson: I t s act ually not affect ing t he workplace. And you can have a lawsuit for t hat . Dodson: I am professional at work Saleh: I know what ’s bet t er for work and I ’m hearing everyone t alking about t hat and it s not right so as a m anager I can do t hat and I ’m sorry I st ill like u as a friend t ho ECF# 35- 12, pp. 31- 32. Despit e Dodson’s behavior, Saleh reversed his decision and allowed her t o ret urn t o work on Sept em ber 15. He did t his because he and his wife socialized wit h Dodson and his decision t o fire Dodson com plicat ed t hings for Saleh’s fam ily. Saleh also worried about Dodson’s escalat ing inst abilit y and how it would affect his hom e life if he did not let Dodson ret urn t o work. On Sept em ber 23, Dodson t ext ed Saleh a phot o of a posit ive pregnancy t est and urged Saleh t o t ell no one about t his for now. ECF# 3512, p. 37. Saleh t ext ed back, “ Em ori, I won’t t ell anyone but Dave needs t o know so u can call or t ext him , guys it ’s your own personal life so please t ry t o figure som et hing out of I HOP cause it s not good t o show our life out side 10 t he work inside t he work and wish t he best for bot h of you.” I d. at 38. Dodson t ext ed back t hat Dave knew already. I d. The t ext m essages exchanged over t he next t wo weeks bet ween Saleh and Dodson confirm t hat Dodson was lat e for a shift , asked for shift t o be rescheduled, left her shift early wit hout cleaning her area, and m issed a shift . ECF# 35- 12, pp. 38- 46. Aft er m issing t he shift , Dodson’s hours declined. Besides what appears in t he t ext m essages, Saleh avers t hat he confront ed Dodson about her t ardiness, absent eeism , habit ual disregard of t he work schedule, and fight ing wit h Fares at w ork. Saleh’s pract ice was t o use writ t en warnings infrequent ly. But at t he urging of his night m anager, Ashley Ayarza, he issued a writ t en warning t o Dodson on Oct ober 13, 2017. Dodson signed t he writ t en warning which st at ed t he following reasons for t he warning: “ No call No show No j ob. Not t he first t im e, not follow ing direct ions as she should be, also not t he first t im e.” ECF# 35- 16. The warning spelled out t hat Dodson’s failure t o t ake t he correct ive act ion of being t im ely and respect ful would result in her t erm inat ion. I d. The plaint iff’s sum m ary j udgm ent response does not effect ively cont rovert any of t he fact s st at ed in t his paragraph. Just hours aft er receiving t his writ t en warning, Dodson and Fares fought at work and t hrew t hings at each ot her. Saleh decided he could no longer schedule Dodson on any shift s ot her t han t he weekend day shift s, as he believed she had becom e dangerous t o herself and t o ot hers when she 11 was around Fares who worked evenings during t he week and weekends. Saleh also decided t o hold Dodson st rict ly t o her scheduled t im e shift s. I n response t o Saleh’s announced decision, Dodson sent profanit y- laced t ext m essages t o Saleh. She t old Saleh t o change Dave’s shift s not hers, because she m ade m ore m oney during t hose shift s and she was a bet t er em ployee t han Dave. ECF# 35- 12, pp. 47- 48. Lat er in t his st ring of t ext s, Dodson t hen suggest ed Saleh’s decision t o change her shift m ay be relat ed t o her “ race, religion, cult ure, or t he fact of” her pregnancy. I d. at 48. Dodson t ext ed t hat she was com ing t o t he rest aurant and want ed perm ission t o “ clock in,” but Saleh denied perm ission. I d. She t ext ed t hreat ening t o com e t o t he rest aurant if Saleh did not t alk wit h her. I d. Dodson follow ed t his wit h a t ext com plaining t hat Saleh did not send Dave hom e t oo and accusing Saleh, “ so it s sexist , religion and t he fact im pregnant .” I d. While Saleh was also concerned by Fares’ behavior at work, he kept Fares on his regularly scheduled shift s because he believed Dodson was inst igat ing t he fight ing, because changing Fares’ shift s would have caused Saleh m ore problem s, because Fares was t he m ore reliable em ployee, because “ I HOP was const ant ly short of cooks,” and because I HOP would have had t o hire m ore cooks t o cover a shift change for Fares while it had enough servers t o cover Dodson’s shift change. ECF# 35- 1, p. 5. Saleh was becom ing increasingly nervous about Dodson’s escalat ing behavior and “ about having any dealings wit h Dodson of any 12 nat ure.” ECF# 35- 1, p. 6. On Oct ober 18t h, when Dodson t ext ed Saleh about helping her t erm inat e t he j oint phone cont act wit h Fares, Saleh responded: “ Call t he cops and t he can walk wit h you cause I don’t want t o be involve wit h all t his and t om orrow you’ll your phone and please don’t t ext m e back or I ’ll call t he cops j ust u can t ext about your j ob here.” I d. at p. 49. On Oct ober 25, Dodson filed her com plaint wit h t he EEOC alleging I HOP had discrim inat ed against her based on her race, sex, religion, and pregnancy. ECF# 35- 18. The com plaint alleges t hat Saleh learned of her pregnancy in lat e Sept em ber and began discrim inat ing against her by cut t ing her hours from 35 t o 16 hours per week, by issuing a writ t en warning t hat was her “ very first disciplinary act ion . . . ever received while em ployed at I HOP,” and by not st opping Fares from t hrowing t hings at her in t he rest aurant . I d. On Novem ber 8 and 9, Dodson t ext ed Saleh asking if he would reschedule her from Sunday m orning t o Friday, as she w ant ed t o work at her ot her j ob. Saleh wrot e back t hat he would check, but t he next day t here was t his exchange: Saleh: Let m e Let m e t ell you t his, u are on t he schedule for Sat and Sun so you need t o cover t hose days and next week if you prefer t o work in t he ot her j ob I don’t m ind t o Dodson: Ok Dodson: So if I work St or Sun day at t he ot her st ore u w ill need t o schedule m e evenings so I am on t he schedule at all. Saleh: No I won’t cause I have t oo m any Saleh: Sorry 13 Dodson: Not m y problem . Saleh: Behave Dodson: U cannot not schedule m e if I t old y’all I can only do eveningsanwayh upon hire bc of school. Dodson: U t ook m y night s away and so I need t hem back Dodson: Ucvan do t hat u j ust don’t and t hat is t he problem here Dodson: But up t o you. You’re leaving m e no choice but t o do what g I am doing Dodson: Keep it up Dodson: You’re purposely not leaving room for m e on your schedule and t hat ’s wrong considering I use be all over t hat schedule. it ’s not m y fault u hire any t rash t hat walks t hrough t hat door. Saleh: Don’t t ext or call m e again, cause I don’t like t he way how u t alk so if you need anyt hing u can call only t he st ore Dodson: I s t hat your only valid reason? THat you don’t like t he way I t alk? Dodson: Doesn’t m at t er if I call t he st ore. You w on’t be t here. Dodson: See u Sat urday and Sunday. Thanks for all t he help. ECF# 35- 12, pp. 51- 52. Dodson lat er asked Saleh about having anot her person cover her shift , and Saleh denied t he request . Dodson was asking for a schedule change t o work for I HOP’s m ain com pet it or and t o det erm ine whet her she liked working t here bet t er. On Novem ber 26, Dodson t ext ed Saleh t hat she was not com ing in as she was sick and needed rest . At 11: 31 p.m . on Novem ber 29, Dodson t ext ed Saleh: “ I ’m knocking on ur door one m ore t im e.” ECF# 35- 12, p. 55. She t hen t ext ed at 12: 26 a.m . on Novem ber 30, “ You’re next .” I d. Saleh avers t hat Dodson had been at his hom e banging on his doors, but Dodson denies t his. At 8: 46 am on Novem ber 30, t he following t ext exchanges occurred: Dodson: I will bring u all up in our business unlessu get dave t o call m e or answer ur door. Dodson: I ’m headed t o t he st ore now. U have a key? 14 Dodson: Yes, I ’m crazy we had gone over t his. I f he t old m e hey I need a break I wouldn’t be so m ad now would I but inst ead t o t old m e not hing and we hom e w u and won’t answer m e. Tell him congrat s t hat his baby can die of st ress if t hat ’s what he’s t rying t o do. Dodson: Com m unicat e! ! That ’s all he needs t o do. Sorry t o bot her u Saleh: Thank you for working wit h m e but you’re not allowed t o work wit h m e anym ore cause it ’s enough Good luck wit h your advent ure. Saleh: You’re fired. Dodson: Why am I fired Dodson: I s it ret aliat ion. Dodson: Bc it ’s very unprofessional t o fire m e t hrough a t ext . Dodson: And I will t ake I HOP wit h m e Dodson: Good luck t o you act ually Dodson: I was planning on keeping t he peace for Dave’s sake but I ’m over it . Dodson: I s t his som et hing u and dave decided last night . Dodson: So since ur not m y boss anym ore I can t ext u forever right lol Dodson: Oh good. Dodson: Ur going t o enj oy m e a lot bet t er as an em ployee t han not . Dodson: I will m ake sure of t hat Dodson: And when I say I ’m t aking it down w m e I m ean it . Good luck. Uve already ruined t hat st ore enough. U know what u and a cockroach have in com m on? Dodson: You’re bot h a disgust ing wast e of life. Enj oy t he ride. I d. at pp. 55- 56. Saleh t hen called t he Hays police about Dodson’s behavior. The police officer cont act ed Dodson, and “ she adm it t ed she was going t o Saleh’s residence and calling and t ext ing him due t o her t rying t o get ahold of Fares who is t he fat her of her child.” ECF# 35- 15, p. 80. The officer t old Dodson t hat she was no longer allowed t o have cont act wit h Saleh in person or by t elephone and t hat she was not allowed at his residence or on I HOP propert y. I d. Saleh also asked Fares t o m ove out of his residence when he fired Dodson. 15 Saleh did not learn of Dodson’s EEOC com plaint unt il aft er t hese event s and aft er t he new year. Bet ween May 3 and June 17, 2018, during t he pendency of t his case, Dodson t ext ed Saleh on several occasions, wit h t he first t ext on May 3rd saying, “ For t he record t his is fam ily relat ed only: I n t he end wit h all t his m ess, you have yourself t o t hank.” ECF# 35- 12, p. 57. She also t ext ed phot os of her child. I d. at pp. 59- 61. Most em ployees at t he I HOP rest aurant have been Christ ian. While t his rest aurant has been m anaged by Saleh, less t han t en Arabs have worked t here, and m ost em ployees have been non- Arab. GOVERN I N G LAW Under Tit le VI I , it is unlawful “ t o discharge any individual, or ot herwise t o discrim inat e against any individual wit h respect t o his com pensat ion, t erm s, condit ions, or privileges of em ploym ent , because of such individual’s race, color, religion, sex, or nat ional origin.” 42 U.S.C. § 2000e- 2( a) ( 1) . “ The t erm s ‘because of sex’ . . . include, but are not lim it ed t o, because of or on t he basis of pregnancy, childbirt h, or relat ed m edicat ed condit ions; and wom en affect ed by pregnancy, childbirt h, or relat ed m edical condit ions shall be t reat ed t he sam e for all em ploym ent - relat ed purposes, . . . .” 42 U.S.C. § 2000e( k) . “ To survive sum m ary j udgm ent on a Tit le VI I claim of discrim inat ion based on race, color, religion, sex, or nat ional origin, a plaint iff m ust present eit her direct evidence of discrim inat ion or indirect 16 evidence t hat sat isfies t he burden- shift ing fram ework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct . 1817, 36 L.Ed.2d 668 ( 1973) .” Bekkem v. Wilkie, 915 F.3d 1258, 1267 ( 10t h Cir. 2019) . “ Direct evidence dem onst rat es on it s face t hat t he em ploym ent decision was reached for discrim inat ory reasons.” Fassbender v. Correct Care Solut ions, LLC, 890 F.3d 875, 883 ( 10t h Cir. 2018) ( int ernal quot at ion m arks and cit at ion om it t ed) . “ Direct evidence is evidence, which if believed, proves t he exist ence of a fact in issue wit hout inference or presum pt ion.” Riggs v. AirTran Airways, I nc., 497 F.3d 1108, 1117 ( 10t h Cir. 2007) ( int ernal quot at ion m arks and cit at ion om it t ed) . “ Com m ent s . . . t hat reflect personal bias do not qualify as direct evidence of discrim inat ion unless t he plaint iff shows t he speaker had decisionm aking aut horit y and act ed on his or her discrim inat ory beliefs.” Tabor v. Hilt i, I nc., 703 F.3d 1206, 1216 ( 10t h Cir. 2013) . “ Under t he McDonnell Douglas fram ew ork, a plaint iff m ust first raise a genuine issue of m at erial fact on each elem ent of t he prim a facie case, as m odified t o relat e t o differing fact ual sit uat ions.” Bekkem , 915 F.3d at 1267 ( int ernal quot at ion m arks and cit at ion om it t ed) . “ The burden t hen shift s t o t he em ployer t o offer a legit im at e nondiscrim inat ory reason for it s em ploym ent decision.” I d. “ I f t he em ployer does so, t he burden t hen revert s t o t he plaint iff t o show t hat t here is a genuine disput e of m at erial fact as t o whet her t he em ployer’s proffered reason for t he challenged act ion is pret ext ual—i.e., unwort hy of belief.” I d. At t his last st age, t he court is t o 17 “ consider t he evidence of pret ext in it s t ot alit y.” Fassbender v. Correct Care Solut ions, LLC, 890 F.3d at 884. The Tent h Circuit has counseled: I m port ant ly, in t he cont ext of em ploym ent discrim inat ion, “ [ i] t is not t he purpose of a m ot ion for sum m ary j udgm ent t o force t he j udge t o conduct a ‘m ini t rial’ t o det erm ine t he defendant 's t rue st at e of m ind.” Randle v. Cit y of Aurora, 69 F.3d 441, 453 ( 10t h Cir. 1995) . Many of t he highly fact - sensit ive det erm inat ions involved in t hese cases “ are best left for t rial and are wit hin t he province of t he j ury.” I d.; see Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 251–52, 106 S.Ct . 2505, 91 L.Ed.2d 202 ( 1986) ( “ [ T] he inquiry [ at sum m ary j udgm ent is] whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o a j ury....” ) . Consequent ly, “ in t his Circuit ... an em ploym ent discrim inat ion suit will always go t o t he j ury so long as t he evidence is sufficient t o allow t he j ury t o disbelieve t he em ployer's [ explanat ion for t he alleged m isconduct ] .” Beaird v. Seagat e Tech., I nc., 145 F.3d 1159, 1177 ( 10t h Cir.1998) ( Tacha, J., concurring in part ) ; see Randle, 69 F.3d at 452 ( “ [ I ] f ... inferent ial evidence is sufficient t o allow a plaint iff t o prevail at t rial, it is surely sufficient t o perm it a plaint iff t o avoid sum m ary j udgm ent so t hat t he plaint iff can get t o t rial.” ) . Lounds v. Lincare, I nc., 812 F.3d 1208, 1220–21 ( 10t h Cir. 2015) . AN ALYSI S Bat t le of Affidavit s The plaint iff is crit ical of t his sum m ary j udgm ent proceeding as const it ut ing a bat t le of affidavit s, because t he defendant s did not depose her or any of t he crit ical wit nesses in t his case. The plaint iff believes t he defendant ’s effort s are t o t ry t he case on affidavit s “ cont rary t o t he spirit and purpose of t he sum m ary j udgm ent rule and should be disallowed.” ECF# 36, p. 20. The plaint iff cit es DeVargas v. Mason & Hanger- Silas Mason Co., I nc., 844 F.2d 714, 719 ( 10t h Cir. 1988) , in support of her posit ion. The 18 Tent h Circuit t here used “ bat t le of affidavit s” in deciding an int erlocut ory appeal from t he denial of a qualified im m unit y defense: “ Our t ask in such an appeal is not t o det erm ine liabilit y on a bat t le of affidavit s, but t o det erm ine whet her, on t he basis of t he pret rial record, t here exist s a conflict sufficient ly m at erial t o defendant s’ claim of im m unit y t o require t hem t o st and t rial.” I d. The Tent h Circuit ’s decision does not disparage bringing a sum m ary j udgm ent m ot ion based on affidavit s wit hout deposit ions. The plaint iff also cit es Met ropolit an Life I ns. Co. v. Browning, 839 F. Supp. 1508, 1510 ( W.D. Okla. 1993) . This case is inapplicable as t he defendant is not relying on affidavit s t o cont radict prior deposit ion t est im ony. Dodson m akes no challenge t o t he defendant ’s good fait h in using affidavit s. I n it s sum m ary j udgm ent ruling, t he court has looked carefully at t he sufficiency and specificit y of t he affidavit s offered by bot h sides. Sum m ary j udgm ent pleadings are properly support ed by affidavit s t hat are “ m ade on personal knowledge, set out fact s t hat would be adm issible in evidence, and show t hat t he affiant or declarant is com pet ent t o t est ify on t he m at t ers st at ed.” Fed. R. Civ. P. 56( c) ( 4) . The plaint iff does not subm it an affidavit pursuant t o Fed. R. Civ. P. 56( d) , showing for specified reasons t hat she cannot present fact s essent ial t o opposing sum m ary j udgm ent and t hereby j ust ifying denial of t he m ot ion. I t is proper under t he circum st ances t o proceed wit h deciding t he m ot ion on t he m erit s. See Cerveny v. Avent is, I nc., 855 F.3d 1091, 1110 ( 10t h Cir. 2017) . The 19 court denies t he plaint iff’s request t o disallow t he defendant from seeking sum m ary j udgm ent based on affidavit s. Direct Evidence The plaint iff concedes her discrim inat ion claim s based on sex, race, and religion are subj ect t o t he McDonnell Douglas fram ework. She, however, believes t hat she has direct evidence of Saleh’s discrim inat ory anim us for pregnancy discrim inat ion. She relies on evidence t hat Saleh suggest ed t o her “ on several occasions t hat I should ‘get rid of t he baby.’” ECF# 36- 1, ¶ 9. Jessica Liles, a form er server at I HOP, avers t hat Saleh com m ent ed t hat Dodson “ needed t o get rid of t he baby because it would be easier on t heir fam ily.” ECF# 36- 2, ¶. 3. The plaint iff also argues her observat ion of Saleh’s general displeasure wit h her becom ing pregnant by his brot her- in- law. ECF# 36, p. 17. The plaint iff assert s t hat Saleh’s com m ent s and at t it ude const it ut e direct evidence of discrim inat ion based on her pregnancy. The Tent h Circuit in Tabor reit erat ed “ t he im port ance of cont ext and t em poral proxim it y in det erm ining whet her com m ent s reflect ing personal bias qualify as direct evidence of discrim inat ion.” 703 F.3d at 1217 ( int ernal cit at ion om it t ed) . “ [ I ] f t he cont ent and cont ext of a st at em ent allow it t o be plausibly int erpret ed in t w o different ways—one discrim inat ory and t he ot her benign—t he st at em ent does not qualify as direct evidence.” I d. at 1216. The plaint iff fails t o provide a cont ext for Saleh’s com m ent s, and t here 20 is not hing t o show t hat Saleh was direct ing his com m ent s t o Dodson’s work, her abilit y t o work, or t he condit ions of her work. These com m ent s do not prove “ t he fact of discrim inat ory t erm inat ion wit hout inference or presum pt ion.” Canfield v. Off. of Sec. of St at e for t he St at e of Kansas, 209 F. Supp. 3d 1219, 1225 ( D. Kan. 2016) . As evidenced by t he t ext m essages, t his case uniquely feat ures ext ensive com m unicat ions bet ween Dodson and Saleh over personal m at t ers unrelat ed t o Dodson’s em ploym ent . Dodson’s opinion or conclusion t hat Saleh was displeased wit h her pregnancy is not direct evidence. “ St at em ent s of personal opinion, even when reflect ing personal bias or prej udice, do not const it ut e direct evidence of discrim inat ion, but at m ost , are only circum st ant ial evidence of discrim inat ion because t he t rier of fact m ust infer discrim inat ory int ent from such st at em ent s.” Clay v. Unit ed Parcel Serv., I nc., 2014 WL 5298173, at * 5 ( D. Kan. 2014) , aff’d, 599 Fed. Appx. 334 ( 10t h Cir. 2015) . Wit hout a cont ext for Saleh’s com m ent s and wit hout a basis for direct ly linking Saleh’s com m ent s and at t it ude t o an em ploym ent decision, t here is no direct evidence t hat “ dem onst rat es on it s face t hat t he em ploym ent decision was reached for discrim inat ory reasons.” See Danville v. Regional Lab Corp., 292 F.3d 1246, 1249 ( 10t h Cir. 2002) . Prim a Facie Case The plaint iff bears t he burden of m aking a prim a facie case of discrim inat ion which “ m ust consist of evidence t hat ( 1) t he vict im belongs t o 21 a prot ect ed class; ( 2) t he vict im suffered an adverse em ploym ent act ion; and ( 3) t he challenged act ion t ook place under circum st ances giving rise t o an inference of discrim inat ion.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 ( 10t h Cir. 2007) . The burden of m aking a prim a facie case “ is not onerous,” “ is one of product ion, not persuasion,” and “ involve[ s] no credibilit y assessm ent .” Plot ke v. Whit e, 405 F.3d 1092, 1099 ( 10t h Cir. 2005) ( int ernal quot at ion m arks and cit at ions om it t ed) . While t he prim a facie case serves prim arily t o elim inat e “ t he m ost com m on nondiscrim inat ory reasons” for t he adverse em ploym ent act ion, it st ill m ust funct ion as a crit ical inquiry int o “ whet her t he plaint iff has dem onst rat ed t hat t he adverse em ploym ent act ion occurred under circum st ances which give rise t o an inference of unlawful discrim inat ion.” Plot ke, 405 F.3d at 1099- 1100 ( int ernal quot at ion m arks and cit at ions om it t ed) . As relevant here, such circum st ances m ay include: “ act ions or rem arks by decisionm akers t hat could be viewed as reflect ing a discrim inat ory anim us,” “ preferent ial t reat m ent given t o em ployees out side t he prot ect ed class,” and “ t he t im ing or sequence of event s leading t o plaint iff’s t erm inat ion.” I d. at 1101. The defendant argues t he plaint iff’s alleged circum st ances do not sust ain an inference of unlawful discrim inat ion. The circum st ances do not point t o discrim inat ory anim us as m uch as t hey show t hat Saleh was upset wit h Dodson’s behavior, did not want her dat ing his brot her- in- law, and did not want her in his fam ily. I n short , a personal feud, anim osit y, or dislike of 22 anot her, and favorit ism for your own relat ives are not m ot ives prohibit ed by Tit le VI I . See Plat ner v. Cash & Thom as Cont ract ors, I nc., 908 F.2d 902, 905 ( 11t h Cir. 1990) . The defendant disput es an inference of discrim inat ory int ent arising from Saleh’s decision t o change only Dodson’s shift aft er t he fight ing bet ween her and Fares. This evidence only shows, at m ost , t hat Saleh t reat ed Fares, his brot her- in- law who lived wit h him , bet t er because of t heir fam ily and personal relat ionship. “ Neit her in purpose nor in consequence can favorit ism result ing from a personal relat ionship be equat ed t o sex discrim inat ion.” Prest on v. Wisconsin Healt h Fund, 397 F.3d 539, 541 ( 7t h Cir. 2005) ( cit at ions om it t ed) . The defendant also denies t hat Fares is sim ilarly sit uat ed t o Dodson, because Dodson engaged in ot her behavior including, at t endance issues, harassing Fares at work when she was not scheduled t o work, st alking Fares at Saleh’s hom e, and sending disrespect ful and profanit y- laced t ext m essages t o Saleh. Anot her difference in t heir sit uat ions is t hat Fares worked full- t im e as a cook which was a posit ion difficult t o fill while Dodson was a part - t im e server. The defendant also argues t he plaint iff cannot show an adverse em ploym ent act ion from Saleh changing her shift t o avoid having her and Fares on t he sam e shift . Finally, t he defendant cont ends t he plaint iff’s race and religion claim s assert reverse discrim inat ion, and she is unable t o “ est ablish background circum st ances t hat support an inference t hat t he defendant is one of t hose 23 unusual em ployers who discrim inat ions against t he m aj orit y.” Mat t ioda v. Whit e, 323 F.3d 1288, 1292 ( 10t h Cir. 2003) . Looking first at t he plaint iff’s prim a facie cases for her race and religion claim s, t he plaint iff sum m arily responds t hat because she is a whit e Christ ian and Saleh is an Arab Muslim , her claim s do not assert reverse discrim inat ion or sam e- group discrim inat ion and no addit ional proof of background circum st ances is necessary. The plaint iff cit es no legal aut horit y for her conclusion. When a plaint iff is a m em ber of an hist orically favored group, t he presum pt ions in Tit le VI I analysis used when a plaint iff belongs t o a disfavored group do not operat e wit h t he sam e j ust ificat ion. See Not ari v. Denver Wat er Dep’t , 971 F.2d 585, 589 ( 10t h Cir. 1992) . “ [ A] Tit le VI I disparat e t reat m ent plaint iff who pursues a reverse discrim inat ion claim and seeks t o obt ain t he benefit of t he McDonnell Douglas presum pt ion, m ust , in lieu of showing t hat he belongs t o a prot ect ed group, est ablish background circum st ances t hat support an inference t hat t he defendant is one of t hose unusual em ployers who discrim inat es against t he m aj orit y.” I d. “ Alt ernat ively, a plaint iff m ay produce fact s ‘sufficient t o support a reasonable inference t hat but for t he plaint iff’s st at us t he challenged decision would not have occurred.’” Argo v. Blue Cross and Blue Shield of Kansas, I nc., 452 F.3d 1193, 1201 ( 10t h Cir. 2006) . Because t he plaint iff is whit e and Christ ian, she m ust est ablish addit ional background circum st ances t o support t he required inference. See Rooney v. Rock- Tenn Convert ing 24 Com pany, 200 F.Supp.3d 816, 820 ( W.D. Ark. 2016) ( Christ ian m ale alleging discrim inat ion point ed t o t he st ruct ure of t he com pany, t he num ber of Jewish supervisors, and t he preferent ial t reat m ent of Jewish em ployees) , aff’d, 878 F.3d 1111 ( 8t h Cir. 2018) . “ I t is insufficient , however, sim ply t o show t hat t he decision m aker was a m em ber of a m inorit y group.” See Taken v. Oklahom a Corp. Com ’n, 934 F. Supp. 1294, 1298- 99 ( W.D. Okla. 1996) ( The m inorit y st at us of t he decision m aker is insufficient background circum st ances not ing t hat in Not ari t he Tent h Circuit found t hat t he m ale plaint iff had failed t o allege t he necessary background circum st ances even t hough his fem ale superior had given t he j ob t o anot her fem ale. 971 F.2d at 589) , aff’d, 125 F.3d 1366 ( 10t h Cir. 1997) ( “ We need not address whet her a whit e plaint iff is relieved of her obligat ion t o show t he requisit e background circum st ances where discrim inat ion is perpet rat ed by m em bers of a different race because, here, plaint iffs failed t o show t hat t he em ploym ent decision was m ade solely by non- whit es.” ) ) ; Kenfield v. Colorado Dept . of Public Healt h & Environm ent , 557 Fed. Appx 728 ( 10t h Cir. Feb. 14, 2014) ( The black supervisor’s decision not t o prom ot e a whit e em ployee did not sust ain a reasonable inference for a prim a face case of race discrim inat ion) . The court looks t o all t he circum st ances t o det erm ine if t hey rise t o an inference of unlawful discrim inat ion based on race or religion. The court cannot find from t he evidence offered by Dodson a reasonable inference t hat her religion or race was behind Saleh’s decisions 25 t o change her shift or t o fire her. She has not present ed a genuine issue of m at erial fact on t his elem ent of t he prim a facie case. She has not com e forward w it h evidence t hat Saleh generally discrim inat ed against em ployees based on t heir Christ ian fait h or race. There is t he plaint iff’s evidence t hat Saleh expressed disappoint m ent over his brot her- in- law Fares dat ing Dodson and over Dodson becom ing pregnant wit h Fares’ child. He also suggest ed t o Dodson several t im es t hat she should “ get rid of t he baby.” ECF# 36- 1, p. 3. First , connect ing Saleh’s com m ent s t o Dodson’s religion or race is m ore guesswork t han inference. As t he record shows, Saleh had several personal reasons for being concerned about and displeased wit h Dodson’s relat ions wit h his fam ily. Even assum ing t he com m ent s are relat ed t o religion or race, Saleh’s com m ent s are st ill only connect ed t o personal fam ily concerns and have not been connect ed t o his em ploym ent decisions as rest aurant m anager. The plaint iff’s only evidence of disparat e t reat m ent is Saleh’s different t reat m ent of Fares for his fight ing wit h Dodson at work. That Fares differs from Dodson as t o race and religion is not enough t o est ablish a prim a facie case. The plaint iff’s evidence sim ply fails t o offer a reasonable basis for inferring t hat Saleh’s decision t o send Dodson hom e and change her shift was due t o her religion or race. Dodson offers no circum st ances t hat could j ust ify a presum pt ion of reverse race or religion discrim inat ion. The evidence of record shows Saleh em ployed m ost ly Christ ians and non- 26 Arabs. The plaint iff has not carried her burden of m aking a prim a facie case of reverse religion and race discrim inat ion. As for t he plaint iff’s discrim inat ion claim s based on pregnancy and sex, t he court will assum e t he plaint iff has carried her prim a facie burden. The plaint iff avers t hat aft er she becam e pregnant , Saleh cut her hours, m oved her t o shift s t hat were less desirable, issued a disciplinary warning t hat was her first , suggest ed she end her pregnancy, and sent her hom e when Fares was abusive t oward her at w ork. The plaint iff and several ot her form er em ployees of t he rest aurant have averred t hat t here was “ m ale favorit ism ” shown at work wit h harassm ent of wom en t olerat ed or ignored and wit h t he fem ale em ployee sent hom e whenever t here was a disput e. Accept ing at face value t hese averm ent s, t he court accept s t hat a genuine issue of m at erial fact over t he prim a facie cases likely exist s. The court declines t o address t he defendant ’s ot her challenges, because t o do so would conflat e t he plaint iff’s claim wit h t he defendant ’s proffered explanat ions. See Orr v. Cit y of Albuqueque, 417 F.3d 1144, 1149 ( 10t h Cir. 2005) . The court also accept s t he plaint iff’s argum ent t hat t he shift change was an adverse em ploym ent act ion as it result ed in a m onet ary loss of t ips. See id. at 1150 ( “ m onet ary losses t ake a variet y of form s,” including changes in com pensat ion and benefit s, and const it ut e an adverse em ploym ent act ion) . PRETEXT 27 The plaint iff concedes t hat t he defendant has m et it s “ exceedingly light ” burden of art iculat ing som e legit im at e, nondiscrim inat ory reason for it s challenged act ions under McDonnell Douglas. Zam ora v. Elit e Logist ics, I nc., 478 F.3d 1160, 1165 ( 10t h Cir. 2007) ( en banc) . The defendant put s forward Saleh’s affidavit , co- em ployees’ affidavit s, and 68 pages of t ext m essages bet ween Dodson and Saleh t o support it s several reasons for changing her shift / hours and t hen t erm inat ing her. First , as evidenced in t he t ext m essages, Saleh had a personal relat ionship wit h Dodson and accordingly showed her concern and pat ience based on t hat relat ionship. Saleh’s pat ience was sorely t est ed and finally broken by her repeat ed inst ances of inappropriat e and egregious words and act ions direct ed at him and Fares. Because Dodson’s behavior was harassing, st alking, dist urbing and m enacing, and had becom e m ore t hreat ening t o his personal life and hom e, Saleh looking out for t he personal welfare of him self and his fam ily severed all t ies wit h Dodson, t erm inat ed her em ploym ent , and involved t he police in enforcing his decision. Second, Dodson frequent ly m issed her shift s or arrived lat e t o work. Third, Dodson violat ed ot her I HOP policies on fight ing, drugs, int im idat ion, insubordinat ion, disrespect ful conduct , and holding out side em ploym ent having an adverse im pact on her I HOP j ob. She brought t he dram a of her workplace rom ance t o work despit e warnings from Saleh. She sent t o Saleh t ext m essages t hat were disrespect ful and laced wit h profanit y and t hat dem anded Saleh t o 28 have Fares t alk wit h her, t hreat ened Saleh, and insist ed Saleh change her work schedule. I t now falls t o t he plaint iff t o show t hat t he defendant ’s proffered reasons are pret ext ual, t hat is, are “ so incoherent , weak, inconsist ent , or cont radict ory t hat a rat ional fact finder could conclude t he reasons w ere unwort hy of belief.” Young v. Dillon Cos., 468 F.3d 1243, 1250 ( 10t h Cir. 2006) ( int ernal quot at ion m arks and cit at ion om it t ed) . The plaint iff m ay also produce “ direct evidence discredit ing t he proffered rat ionale, or . . . [ show] t hat t he plaint iff was t reat ed different ly from ot hers sim ilarly sit uat ed.” Lounds v. Lincare, I nc., 812 F.3d at 1234 ( quot at ion m arks and cit at ion om it t ed) . “ Mere conj ect ure t hat t he em ployer's explanat ion is a pret ext for int ent ional discrim inat ion is an insufficient basis for denial of sum m ary j udgm ent .” Bekkem v. Wilkie, 915 F.3d at 1268 ( int ernal quot at ion m arks and cit at ion om it t ed) . “ Evidence support ing t he prim a facie case is oft en helpful in t he pret ext st age and not hing about t he McDonnell Douglas form ula requires us t o rat ion t he evidence bet ween one st age or t he ot her.” Wells v. Colorado Dept . of Transp., 325 F.3d 1205, 1218 ( 10t h Cir. 2003) ( int ernal quot at ion m arks and cit at ion om it t ed) . “ The relevant inquiry is not whet her t he em ployer’s proffered reasons were wise, fair or correct , but whet her it honest ly believed t hose reasons and act ed in good fait h upon t hose beliefs.” Swackham m er v. Sprint / Unit ed Managem ent Co., 493 F.3d 1160, 1169–70 ( 10t h Cir. 2007) ( quot at ions om it t ed) . The inquiry does t urn 29 on whet her “ a reasonable fact finder could rat ionally find [ t he em ployer’s rat ionale] unwort hy of credence and hence infer t hat t he em ployer did not act for t he assert ed [ non- ret aliat ory] reasons.” Crowe v. ADT Sec. Services, I nc., 649 F.3d 1189, 1196 ( 10t h Cir. 2011) ( cit at ion om it t ed) . Dodson argues her evidence creat es genuine issues of m at erial fact for disbelieving Saleh’s explanat ions given for changing her shift and t hen t erm inat ing her. She believes her affidavit s effect ively cont rovert m uch of I HOP’s evidence and cont radict t he defendant ’s charact erizat ion of Saleh as a fair em ployer who does not discrim inat e. There are st at em ent s in t hose affidavit s t hat Saleh displayed a chauvinist ic and discrim inat ory at t it ude t oward fem ale em ployees. She m ent ions Saleh calling her a “ crazy bit ch.” She point s t o t he only writ t en disciplinary warning she received aft er becom ing pregnant . She st ands on her opinion t hat her at t endance issues “ were not out of line wit h her co- workers.” ECF# 36, p. 20. And finally, she point s t o Saleh’s disparat e t reat m ent of her and Fares for workplace fight ing. This case is unusual for t he pages of uncont rovert ed t ext m essages. They overwhelm ingly evidence Saleh’s prim ary reason for his adverse em ploym ent act ions such t hat no reasonable fact finder could rat ionally find his reason t o be unwort hy of credence. Dodson’s personal relat ionships had so int ert wined wit h her em ploym ent as t o negat ively im pact Saleh’s personal life and his abilit y t o m anage her and his rest aurant . The t ext m essages evidence t hat Saleh believed he could no longer deal wit h 30 Dodson and severed all relat ionships wit h Dodson. The only references in t hese t ext m essages t o Dodson’s race, religion, sex, or pregnancy com e from Dodson t rying t o m ake t hem an issue. The t ext m essages consist ent ly est ablish t hat Saleh had becom e concerned wit h Dodson’s behavior in t hese personal relat ionships. Behavior t hat had becom e so increasingly disrupt ive and t hreat ening not only t o t he workplace but t o his own personal life t hat Saleh had enough and ended his involvem ent wit h Dodson, personally and professionally. Dodson does not effect ively cont rovert what t he t ext m essages reveal as t o her egregious behavior t oward Saleh and Fares and as t o her work place conduct and issues wit h at t endance and at t it ude. Dodson’s affidavit includes a general denial about her work place conduct , but it is plainly cont radict ed by her t ext m essages which specifically evidence her problem s wit h at t it ude and at t endance and even include her own adm issions about t hrowing t hings and being difficult and appreciat ing Saleh’s pat ience wit h her. The defendant correct ly argues t hat Saleh’s “ crazy bit ch” com m ent when placed in t he cont ext of t his case does not creat e a genuine issue of m at erial fact over pret ext . According t o Liles’ affidavit , Saleh m ade t his com m ent in t his cont ext : On Novem ber 2, 2018, I cam e int o work and was called int o Adham ’s [ Saleh’s] office. Adham t old m e t hat Em ori is ‘crazy’ and t hat he cannot do it anym ore. He t old m e t hat she needed t o get rid of t he baby because all she does is fight wit h Dave. He asked t hat I t ell Em ori t hat she was off t he schedule unt il furt her not ice and t o t ell her he 31 would call her t o let her know when and if she could work. He t hen proceeded t o t ell m e t hat Em ori was a “ crazy bit ch.” ECF# 36- 2, p. 2. I t is significant t hat even t he plaint iff’s wit ness avers t hat Saleh had said he could not deal wit h Dodson “ anym ore” because of her behavior. The defendant list s Dodson’s unusual, dist urbing, unset t ling, t hreat ening, and even crim inal behavior leading up t o Saleh’s concession t hat , “ he cannot do it anym ore” and t o Saleh’s exasperat ion in calling t he plaint iff, “ crazy.” The court finds t he defendant ’s list and descript ion of Dodson’s behavior t o be largely uncont rovert ed and est ablished in t he first 50 pages of Exhibit 13, ECF# 35- 12, t he t ext m essages bet ween Dodson and Saleh. I n t hese t ext m essages, t he plaint iff calls herself “ crazy.” Finally, before Saleh knew of her pregnancy, he had t erm inat ed Dodson in Sept em ber because of her behavior and it s disrupt ive effect on t he work place. ECF# 35- 12, pp. 31- 32. Out of personal concerns for his fam ily’s relat ionship wit h Dodson out side of work and for Dodson’s own welfare, Saleh allowed Dodson t o keep working. As t he t ext m essages evidence, Dodson’s behavior did not im prove but only becam e worse part icularly aft er her pregnancy and t he addit ional cause for fight ing wit h Fares. Short ly aft er changing Dodson’s shift , in Oct ober, Saleh t ext ed Dodson t o st op sending him personal t ext s and only t o com m unicat e wit h him about work. Dodson did not st op t he t ext m essages concerning her relat ionship wit h Fares. When underst ood wit hin it s given cont ext , Saleh’s com m ent only expresses his frust rat ion wit h t he difficult and com plicat ed behavior by Dodson in t heir 32 personal relat ionship and wit h her inabilit y t o keep it out of t he workplace. The com m ent does not creat e any genuine issue of pret ext as t o an unlawful discrim inat ory m ot ive. Dodson argues her only writ t en warning cam e aft er Saleh learned of her pregnancy and short ly before her t erm inat ion. The Tent h Circuit recognizes t hat “ t em poral proxim it y alone is insufficient t o raise a genuine issue of m at erial fact concerning pret ext .” Lounds v. Lincare, I nc., 812 F.3d at 1236 n.10 ( quot at ion m arks and cit at ion om it t ed) . The plaint iff lacks ot her evidence t o sust ain a reasonable inference of pret ext . I t is uncont rovert ed t hat Saleh infrequent ly used writ t en warnings and did so here only at t he urging of his night m anager, Ashley Ayarza. Text m essages exchanged before t his writ t en warning confirm t hat Saleh had repeat edly caut ioned Dodson about her work behavior and at t endance issues, t hat he had t erm inat ed her in Sept em ber because of her behavior’s im pact on t he work place and aft er she had shown up int oxicat ed at his house in t he m iddle of t he night , and t hat Dodson had believed her behavior on ot her occasions was such t hat Saleh was considering her t erm inat ion. The t im ing of t his writ t en warning is hardly evidence of Saleh having a discrim inat ory m ot ive. I nst ead, it is consist ent wit h not only Saleh’s plain and growing frust rat ion wit h Dodson but also his willingness t o follow his night m anager’s suggest ions for dealing wit h Dodson’s at t endance and at t it ude issues. Finally, t he plaint iff’s sum m ary opinion about her at t it ude and at t endance 33 issues relat ive t o ot her em ployees fails for lack of foundat ion and knowledge. For all t hese reasons, t he court finds no genuine issue of pret ext t o be creat ed by t he t im ing of t his only writ t en warning. The plaint iff point s t o her opinion and t hose held by som e form er em ployees about m ale favorit ism at work. Evidence of favorit ism based on gender is relevant . But t o show pret ext , t he plaint iff’s evidence and argum ent s m ust lead t he court t o believe t hat Saleh’s reasons for changing her shift and t hen t erm inat ing her “ are so incoherent , weak, inconsist ent and cont radict ory t hat a rat ional fact finder could conclude t hey are unwort hy of belief.” Bird v. West Valley Cit y, 832 F.3d 1188, 1205 ( 10t h Cir. 2016) ( int ernal quot at ion m arks and cit at ion om it t ed) . The plaint iff’s evidence fails t o connect t hese opinions of favorit ism t o Saleh’s decisions here. I nst ead, t he t ext m essages confirm Saleh’s reasons for his decisions t o be t ransparent and developing consist ent wit h Dodson’s increasingly difficult behavior. The plaint iff’s pret ext argum ent culm inat es in Saleh’s disparat e t reat m ent of her and Fares for workplace fight ing. Saleh has art iculat ed t he business reasons for separat ing Dodson and Fares from working t he sam e shift s and for changing Dodson’s shift only. The plaint iff has not effect ively cont rovert ed t he defendant ’s evidence of t he fight ing bet ween Dodson and Fares and it s im pact on t he work place. The affidavit s of co- em ployees describe t he plaint iff’s behavior at work as a “ cause of workplace st ress,” 34 ECF# 35- 5, p. 1, as errat ic and “ crazy,” ECF# 35- 4, p. 1, and as “ psycho,” ECF# 37- 1, p. 1. As fully discussed above, t he plaint iff lacks evidence t hat a sim ilarly sit uat ed m ale em ployee engaged in conduct as ext rem e and egregious as her own and was t reat ed different ly. The plaint iff has no evidence showing Saleh’s reasons t o be unwort hy of belief or discrim inat ory on t heir face. The plaint iff does not cont rovert t hat she was a part - t im e server and t hat I HOP had ot her servers who could cover her shift . I n cont rast , Fares was a full- t im e em ployee, worked as a cook and t he rest aurant was short of cooks, and was Saleh’s brot her- in- law. Favorit ism shown a relat ive is not a violat ion of Tit le VI I . See Clark v. Cache Valley Elec. Co., 573 Fed. Appx. 693, 697- 98 ( 10t h Cir. Jul. 25, 2014) ( “ [ O] t her m ot ives such as friendship, nepot ism , or personal fondness . . . suffice t o rem ove t he case from Tit le VI I ’s ant i- discrim inat ion provisions. See, e.g., Swackham m er v. Sprint / Unit ed Mgm t . Co., 493 F.3d 1160, 1172- 72 ( 10t h Cir. 2007) ( . . . .) ; Neal v. Roche, 349 F.3d 1246, 1251 ( 10t h Cir. 2003) ( . . . .) ; Schobert v. I ll. Dept . of Transp., 304 F.3d 725, 733 ( 7t h Cir. 2002) ( “ Whet her t he em ployer grant s em ploym ent perks t o an em ployee because is a prot égé, an old friend, a close relat ive or a love int erest , t hat special t reat m ent is perm issible as long as it is not based on an im perm issible classificat ion.” ) .” ) . I t is uncont rovert ed t hat when he fired Dodson, Saleh’s frust rat ion had reached t he point t hat he want ed no furt her cont act wit h Dodson as he also asked Fares t o m ove out of Saleh’s hom e. From all t he evidence of record, a 35 reasonable fact finder could not rat ionally find t hat Saleh’s reasons for changing Dodson’s shift and t erm inat ing her em ployer are unwort hy of credence and, inst ead, he act ed for t he alleged discrim inat ory reasons. The defendant is ent it led t o sum m ary j udgm ent . I T I S THEREFORE ORDERED t hat t he defendant ’s m ot ion for sum m ary j udgm ent ( ECF# 34) is grant ed on t he grounds st at ed above wit h cost s pursuant t o Fed. R. Civ. P. 54( d) ( 1) t axed on t he plaint iff. Dat ed t his 30t h day of April, 2019, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 36
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