Farah v. A-1 Careers et al, No. 2:2012cv02692 - Document 42 (D. Kan. 2013)
Court Description: MEMORANDUM AND ORDER granting 35 Motion for Summary Judgment. Defendants' request for attorneys' fees is denied. Signed by U.S. District Senior Judge Sam A. Crow on 11/20/2013. (mb)
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Farah v. A-1 Careers et al Doc. 42 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS ABDI FATAH FARAH, Plaint iff, v. No. 12- 2692- SAC A- 1 CAREERS and CENTRI NEX, LLC, Defendant s. MEMORANDUM AND ORDER This case of religious discrim inat ion com es before t he Court on Defendant s’ m ot ion for sum m ary j udgm ent . The prim ary disput e is whet her, during Plaint iff’s less t han one m ont h em ploym ent , Defendant s reasonably accom m odat ed Plaint iff’s I slam ic religious pract ice of praying at noon or discrim inat ed against him for t hat pract ice. I . Su m m a r y Ju dgm e n t St a n da r d “ [ S] um 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.’” Morris v. Cit y of Colo. Springs, 666 F.3d 654, 660 ( 10t h Cir. 2012) ( quot ing Fed. R. Civ. P. 56( a) ) . I n assessing a m ot ion for sum m ary j udgm ent , “ [ w] e view t he fact s, and all reasonable inferences t hose fact s support , in t he light m ost favorable t o t he nonm oving part y.” Sim m ons v. Sykes Ent ers., I nc., 647 F.3d 943, 947 ( 10t h Cir. 2011) . Dockets.Justia.com The Court m ust exam ine t he record t o det erm ine whet her any genuine issue of m at erial fact is in disput e. I f t he record shows none, t he Court det erm ines t he correct applicat ion of t he subst ant ive law, and in so doing exam ines t he fact ual record and reasonable inferences from t he record in t he light m ost favorable t o t he part y opposing t he m ot ion. EEOC v. Abercrom bie & Fit ch St ores, I nc., 731 F.3d 1106 ( 10t h Cir. Oct . 1, 2013) . I I . Un dispu t e d Fa ct s A- 1 Careers, a t em porary st affing agency, hired Plaint iff on June 8, 2010 and placed him at Cent rinex, 1 where he worked t hrough July 2, 2010. Plaint iff was t he only Muslim em ployee. Plaint iff worked at Cent rinex’s principal place of business in Overland Park, Kansas. Cent rinex em ployees had t wo fift een- m inut e breaks plus one hour for lunch each day and were perm it t ed t o use t he rest room anyt im e t hey needed t o. Pla in t iff’s Re ligiou s Pr a ct ice s Plaint iff pract ices t he religion of I slam and has a sincerely- held religious belief t hat he is required t o perform prayer rit uals five t im es a day: in t he m orning, around noon, in lat e aft ernoon, at dusk, and at night . During his em ploym ent wit h Defendant s, plaint iff conduct ed all prayers but t he noon prayer at his hom e, approxim at ely 20- 25 m inut es from t he Cent rinex offices, or at som e place ot her t han work. Muslim s are prohibit ed from 1 The part ies st ipulat e in t he pret rial order t hat bot h Defendant s were Plaint iff’s em ployers under Tit le VI I . Dk. 34, p.3. For purposes of t his m ot ion, t he Court accept s t hat st ipulat ion. See generally Zinn v. McKune, 143 F.3d 1353, 1361 ( 10t h Cir. 1998) ( concurring opinion) ( under Tit le VI I t wo separat e ent it ies m ay be t he em ployer if t hey share or co- det erm ine m at t ers governing t he worker’s essent ial t erm s and condit ions of em ploym ent ) . 2 perform ing t heir prayers in filt hy or unsanit ary condit ions, or where t hey would inhibit people from com ing and going, or where t hey would bot her ot her people or endanger t he person praying. Prayers are t o be perform ed peacefully as a hum ble and privat e experience. The only prayer t hat Plaint iff rout inely conduct ed during work hours was t he prayer done around t he noon hour, it s exact t im e varying depending on t he posit ion of t he sun. This prayer averages bet ween seven and t en m inut es. During his prayers, Plaint iff used a prayer m at t hat was approxim at ely 4 feet by 2 feet . He said his prayers silent ly while at various t im es st anding, sit t ing, kneeling, or laying prost rat e on his m at . On m ost Fridays, Plaint iff com bined his one- hour lunch break wit h his 15- m inut e aft ernoon break so he could drive t o a m osque approxim at ely 30 m inut es away, at t end at least part of a 10 t o 30 m inut e worship and prayer service, and ret urn t o work. Plaint iff would ask t he lady who sat next t o him and a “ fit lady” who was in t he office for perm ission t o do so on Fridays, and it was never denied. But t he record does not reveal who at Cent rinex grant ed Plaint iff perm ission t o do so or who was aware t hat he did so. Ce n t r in e x ’s Office Cent rinex leased part of a six- st ory building whose m ain floor had a com m on lobby serving all t enant s and t heir visit ors. When Plaint iff first st art ed working t here, he asked a cow orker who supervised his work whet her t here was som e place t o pray, and she t old him he could use t he 3 lobby. Thereaft er, wit hout asking any of Defendant ’s m anagers for perm ission, Plaint iff conduct ed his noon prayers in t he lobby, which was all glass. During t he t im e Plaint iff prayed in t he lobby, several ot her people went t hrough t he lobby t o t he doors or elevat ors, and could see Plaint iff praying t here. Plaint iff did not consider his prayers t o be disrupt ive but did not care if t hey m ade ot hers uncom fort able. I n it ia l Com pla in t s Abou t Pla in t iff’s Pr a ye r s Som et im e in m id- t o- lat e June, t he propert y m anager of t he building in which Cent rinex leased office space cont act ed Cent rinex. She t old Cent rinex’s H.R. Direct or, Cat hy Evers, t hat Plaint iff was praying in t he lobby and t hat ot her t enant s and t heir visit ors had obj ect ed t o his praying t here. Cent rinex t hen cont act ed A- 1 Careers and inform ed Ms. Caughron t hat Plaint iff was praying in t he lobby of t he m ain ent rance t o t he building and had disrupt ed ot her em ployees and t hat em ployees had com plained. She asked A- 1 t o visit w it h Plaint iff about t he m at t er. A- 1 ’s Fir st Su gge st e d Accom m oda t ion s Ms. Caughron of A- 1 Careers called Plaint iff on t he t elephone on June 29, 2010, relat ed com plaint s t o him , and t old him Cent rinex felt it was disrupt ive for him t o pray as he had been praying. She offered Plaint iff several opt ions at t he t im e: t o pray in his car, or out side, or at a m osque. 4 When Ms. Caughron asked Plaint iff whet her he could pray in his car, Plaint iff responded t hat he could not because his prayer rit ual requires him t o do lot s of m ovem ent s which one cannot do in a car. Ms. Caughron asked Plaint iff if he could pray out side. The building in which Cent rinex leased space was surrounded by a m anicured landscaped area and had m any places shelt ered from t he rain. During Plaint iff’s em ploym ent at Cent rinex t he t em perat ure averaged bet ween 75 and 77 degrees, and very few working days had any precipit at ion. Plaint iff had prayed out side once before but “ didn’t like it ,” and t old her he could not pray out side due t o sanit ary reasons. Plaint iff felt t he area out side t he building was filt hy and unsanit ary and he did not want t o be out in t he elem ent s. Ms. Caughron t hen asked if Plaint iff could go t o a place of worship t o pray. The part ies agree t hat t here were a lot of places for prayer off- sit e, but t he closest m osque was about 30 m inut es away. Plaint iff responded by saying, “ I apologize. Again, if I do t hat , I ’m going t o be lat e and I don’t want t hat t o reflect negat ively on m e.” Dk. 36, Exh. 2, p. 98. Plaint iff did not ask her if he could t ake addit ional t im e at lunch and m ake it up at t he end of t he day, did not ask her if he could com bine his aft ernoon break wit h his lunch hour and pray off- sit e as he did on Fridays, and did not t ell her t hat Cent rinex perm it t ed him t o be lat e on Fridays by com bining his lunch hour wit h his aft ernoon break so he could go t o a m osque. I nst ead, Plaint iff asked Ms. Caughron, “ would you t ake responsibilit y for m e if … I cam e in 5 lat e?” Dk. 36, Exh. 2, p. 98. She said no, but t old him she would cont act t he owner of Cent rinex and get back t o him . Ce n t r in e x ’s Su gge st e d Accom m oda t ion s Soon t hereaft er, Plaint iff init iat ed a conversat ion wit h Cent rinex’s H.R. Direct or Evers about t he m at t er. He t old her t hat A- 1 had called him and had said som e people m ight have been offended by his prayers in t he lobby. Plaint iff asked her whet her t here was any space in t he building where he could pray. Ms. Evers responded t hat t here was none. Ms. Evers t hen suggest ed t hat Plaint iff conduct his noon prayers out side t he office building in t he court yard, in his car, or off- sit e. Plaint iff t old Ms. Evers he could not conduct his noon prayers in his car because he cannot st and up, which const it ut es part of his rout ine prayer rit ual. And Plaint iff t old her t hat praying out side t he building or in a local park was not an opt ion because he couldn’t be out in t he elem ent s. But Plaint iff did not respond t o Ms. Evers’ suggest ion t hat he conduct his noon prayers off- sit e. Pla in t iff’s Su gge st e d Accom m oda t ion s I nst ead, Plaint iff count eroffered t o pray in t he H.R. Direct or’s privat e office. Ms. Evers rej ect ed t his idea because she regularly occupied her office, people were com ing and going in and out of it all day, and she had confident ial files all over her office. 6 Plaint iff also asked t o pray out side Ms. Evers’ office in t he hallway, but Ms. Evers declined, believing t hat t he only space t here was a walkway and t hat Plaint iff would have im peded t he flow of people who needed t o use t hat hallway t o m ove around t he area t o work. Plaint iff does not t hink his praying t here would have done so. Plaint iff also asked Ms. Evers about using an office t hat he t hought was not used all t he t im e on t he fift h floor, where som e Cent rinex m anagers were officed. But Ms. Evers t old him none was available. At t he t im e, Cent rinex used all of t he space it leased in t he building, and relocat ed t o larger offices short ly aft er plaint iff left . Cent rinex had no legal abilit y t o give Plaint iff perm ission t o use t he building space occupied by ot her com panies or t he building’s com m on areas, such as t he lobby. Plaint iff did not ask Ms. Evers whet her he could t ake addit ional t im e at lunch t o t ravel t o a m osque or ot her off- sit e locat ion on days ot her t han Fridays. Plaint iff knew t hat ot her em ployees som et im es at e lunch at t heir desks, and t hat Defendant s perm it t ed him t o t ravel off- sit e and t ake a longer lunch break for prayer services on Fridays. But t he record does not reflect t hat Ms. Evers knew t hat Plaint iff t raveled off- sit e and t ake a longer lunch break for prayer services on Fridays. Had Plaint iff request ed addit ional t im e at lunch t o t ravel t o an off- sit e locat ion for his noon prayers on days ot her t han Fridays, Ms. Evers would have grant ed t hat request . 7 Aft er his conversat ion wit h Ms. Evers, Plaint iff consult ed t he sam e t wo persons who he considered t o be his work supervisors ( t he lady who sat next t o him and t he “ fit lady” ) what t o do. They t old him “ off t he record” t hat if t hey were he t hey would cont inue t o pray in t he lobby. Plaint iff t hereaft er conduct ed his noon prayers in t he lobby, as he had before he had been inform ed of any com plaint s. Ms. Evers saw Plaint iff praying in t he lobby and cont act ed A- 1. A- 1 ’s Se con d Su gge st e d Accom m oda t ion s On July 1st or 2nd, 2010, Managing Direct or Bat t aglia of A- 1 Careers visit ed Plaint iff at Cent rinex’s office about t he m at t er. She asked Plaint iff if he could pray in his car or out side or elsewhere. Plaint iff gave Ms. Barraglia t he sam e responses he had given t o Ms. Evers. Plaint iff said he had asked Ms. Evers for a place t o pray and was t old t here was nowhere he could pray inside t he building, and asked Ms. Bat t aglia if she could find him a place t o pray. Th e W a r n in g Le t t e r Ms. Bat t aglia t old Plaint iff she had a warning let t er for him t o sign, and present ed a writ t en warning which st at ed: This let t er is a verbal ( sic) clarificat ion on conversat ion you had wit h Lani Caughron on June 29t h. I t is t he com pany policy of A- 1 Careers t hat NO public dem onst rat ion or act ivit y can occur on client s ( sic) propert y. Personal convict ions are respect ed and honored, however it ( sic) m ust not be displayed as an int errupt ion of t he workplace and client environm ent . Let t his serve as final confirm at ion and it will not be t olerat ed. 8 Dk. 36, Exh. 3, 00124. Plaint iff refused t o sign t he let t er. Ms. Bat t aglia responded t hat Plaint iff could not cont inue t o work t here unless he signed t he let t er and com plied wit h it . Plaint iff responded t hat he could not do so. Ms. Bat t aglia t hen added t he following language t o t he let t er: I n Recognit ion Abdi Farrah ( sic) has volunt arily resign ( sic) on Friday, July 2nd, 2010. I d. Plaint iff signed t he let t er and did not ret urn t o work aft er lunch t o finish his shift . Plaint iff sought and found ot her em ploym ent and began a new j ob on July 8, 2010, so was out of work for t hree days. Th is La w su it Plaint iff, having exhaust ed his adm inist rat ive rem edies, brings t his suit under Tit le VI I alleging religious discrim inat ion. Plaint iff brings a disparat e t reat m ent claim and a failure t o accom m odat e claim . I I I . Fa ilu r e t o Accom m oda t e I n failure t o accom m odat e claim s in which no direct evidence of discrim inat ion is shown, t he Court applies a version of t he burden- shift ing approach McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct . 1817, 36 L.Ed.2d 668 ( 1973) . See Thom as v. Nat ional Ass'n of Let t er Carriers, 225 F.3d 1149, 1155 ( 10t h Cir. 2000) . To survive sum m ary j udgm ent , “ t he em ployee init ially bears t he burden of product ion wit h respect t o a prim a facie case.” Thom as, 225 F.3d at 1155. 9 A prim a facie case of failure t o accom m odat e one’s religion requires t he em ployee t o “ show t hat ( 1) he or she had a bona fide religious belief t hat conflict s wit h an em ploym ent requirem ent ; ( 2) he or she inform ed his or her em ployer of t his belief; and ( 3) he or she was fired … for failure t o com ply wit h t he conflict ing em ploym ent requirem ent .” I d. ( em phasis added) . Abercrom bie, 731 F.3d at 1122, quot ing Thom as, 225 F.3d at 1155. I f Plaint iff m akes a prim a facie case, t he burden t hen shift s t o t he em ployer t o ( 1) conclusively rebut one or m ore elem ent s of t he plaint iff's prim a facie case, ( 2) show t hat it offered a reasonable accom m odat ion, or ( 3) show t hat it was unable reasonably t o accom m odat e t he em ployee's religious needs wit hout undue hardship. Thom as, 225 F.3d at 1156; Abercrom bie, 731 F.3d at 1122. The purpose of t he burden- shift ing m echanism in failure t o accom m odat e claim s differs from it s purpose in disparat e t reat m ent claim s. Here, t he Court uses t he burden- shift ing m echanism as a m eans by which t o det erm ine whet her t he various part ies have advanced sufficient evidence t o m eet t heir respect ive t radit ional burdens t o prove or disprove t he reasonableness of t he accom m odat ions offered or not offered. See Thom as, p. 1155, n. 6. Applica t ion Defendant s adm it t hat Plaint iff had a bona fide religious belief t hat he was required t o conduct noon prayers. They deny t hat Plaint iff has shown 10 t hat his religious pract ice conflict ed wit h any em ploym ent requirem ent . But viewing t he fact s in t he light m ost favorable t o t he Plaint iff, t he Court finds t he neut ral workplace rule t hat Plaint iff not pray in t he lobby sufficient t o m eet t his elem ent for purposes of t his m ot ion. I t is undisput ed t hat aft er being inform ed of t his requirem ent , Plaint iff inform ed his em ployer of his religious belief and of t he conflict . The crucial issue is whet her Plaint iff was fired for failing t o com ply wit h t he conflict ing em ploym ent requirem ent . Plaint iff cont ends t hat t his elem ent is m et because he was const ruct ively discharged. Proof of const ruct ive discharge m ay const it ut e an adverse em ploym ent act ion under Tit le VI I . Fischer v. Forest wood Co., I nc., 525 F.3d 972, 979 ( 10t h Cir. 2008) . The Court finds t hat t he Plaint iff was not const ruct ively discharged, as explained below in addressing Plaint iff’s disparat e t reat m ent claim . But even if one assum es, for purposes of t his claim , t hat Plaint iff was const ruct ively discharged, his failure t o accom m odat e claim fails because t he fact s conclusively show t hat Defendant s offered a reasonable accom m odat ion, or t hat Defendant s were unable reasonably t o accom m odat e Plaint iff’s religious needs wit hout undue hardship. Offe r s of Re a son a ble Accom m oda t ion As t he Tent h Circuit not ed suggest ed in Thom as, Tit le VI I ’s “ int eract ive process . . . requires part icipat ion by bot h t he em ployer and t he em ployee.” 11 225 F.3d at 1155.” Abercrom bie, 731 F.2d at 1121. Tit le VI I ’s religious accom m odat ion requirem ent , like t he ADA’s accom m odat ion clause, involves an int eract ive process t hat requires part icipat ion by bot h t he em ployer and t he em ployee. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 107 S.Ct . 367, 372, 93 L.Ed.2d 305 ( st at ing t hat , consist ent wit h t he goals expressed in t he legislat ive hist ory of t he religious accom m odat ion provision, “ court s have not ed t hat bilat eral cooperat ion is appropriat e in t he search for an accept able reconciliat ion of t he needs of t he em ployee's religion and t he exigencies of t he em ployer's business” ) ( int ernal quot at ions and cit at ions om it t ed) ; Sm it h v. Pyro Mining Co., 827 F.2d 1081, 1085 ( 6t h Cir. 1987) ( “ Alt hough t he burden is on t he em ployer t o accom m odat e t he em ployee's religious needs, t he em ployee m ust m ake som e effort t o cooperat e wit h an em ployer's at t em pt at accom m odat ion.” ) ; cf. Sm it h v. Midland Brake, I nc., 180 F.3d 1154, 1171–72 ( 10t h Cir. 1999) ( en banc) ( discussing t he int eract ive process bet ween an em ployer and an em ployee under t he ADA) . FN5 Thom as, 225 F.3d at 1155. “ A reasonable religious accom m odat ion is any adj ust m ent t o t he work environm ent t hat will allow t he em ployee t o com ply wit h his or her religious beliefs.” 12- I V REASONABLE ACCOMMODATI ON EEOCCM s 12- I V. An accom m odat ion is not “ reasonable” if it m erely lessens rat her t han elim inat es t he conflict bet ween religion and work, provided elim inat ing t he conflict would not im pose an undue hardship. Elim inat ing t he conflict bet ween a work rule and an em ployee's religious belief, pract ice, or observance m eans accom m odat ing t he em ployee wit hout unnecessarily disadvant aging t he em ployee's t erm s, condit ions, or privileges of em ploym ent . I d. Det erm ining whet her an em ployer has offered a reasonable religious accom m odat ion is a fact - specific inquiry. See e.g., Thom as, 225 F.3d at 1154 - 1157; Weber v. Leaseway Dedicat ed Logist ics, I nc., 1999 WL 5111, 1 12 ( 10t h Cir. 1999) ; Lee v. ABF Freight Syst em , I nc., 22 F.3d 1019 ( 10t h Cir. 1994) ; Toledo v. Nobel- Sysco, I nc., 892 F.2d 1481, 1483 ( 10t h Cir. 1989) . The undisput ed fact s of t his case show t hat t he Plaint iff and t he Defendant s engaged in an int eract ive process about Plaint iff’s noon prayers on several occasions. Defendant s t horoughly explored t he alt ernat ives and m ade specific suggest ions t hat t hey t hought m ight m eet bot h t he Plaint iff’s religious needs and it s neut ral work requirem ent s. Three t im es Defendant s offered in good fait h, am ong ot her opt ions, t o perm it Plaint iff t o go off- sit e for his noon prayers. Defendant s already perm it t ed Plaint iff t o t ake ext ra t im e at lunch t o go t o a m osque t o pray at noon on Fridays, dem onst rat ing t hat t his solut ion was workable for bot h Plaint iff and Defendant s. Not hing cont radict s Defendant s’ t est im ony t hat it would have perm it t ed Plaint iff t o com bine his lunch and break t im e ot her days of t he week, as well. The Court finds from t he undisput ed fact s t hat Defendant s t hus offered a reasonable accom m odat ion. Plaint iff cont ends t hat he “ did ask for perm ission for ext ra t im e t o ret urn from break at t he t im e and t hat was denied.” Dk. 37. p. 25. By t his, Plaint iff refers t o A- One’s init ial suggest ion t hat Plaint iff go t o a m osque t o pray, t o Plaint iff’s response t hat he didn’t want t o be lat e or have t hat reflect negat ively on him , and t o Plaint iff’s request t hat Ms. Caughron “ t ake responsibilit y for him ” if he cam e in lat e, which she declined t o do. But Plaint iff did not ask her if he could t ake addit ional t im e at lunch and m ake it 13 up at t he end of t he day, or ask her if he could com bine his lunch break wit h his aft ernoon break, or t ell her t hat Cent rinex perm it t ed him t o do t hat very t hing on Fridays so he could at t end services at a m osque. No fact s suggest t hat Ms. Caughron was even aware of t he accom m odat ion Cent rinex m ade for Plaint iff’s Friday noon prayers. Plaint iff, who was aware of t he Friday accom m odat ion, curiously did not suggest t he sam e arrangem ent t o Ms. Caughron. Plaint iff’s vague request t hat A- One “ t ake responsibilit y for him ” if he were lat e does not creat e a m at erial quest ion of fact or raise any inference t hat A- One refused t o perm it him t o go off- sit e for his noon prayers or refused t o let him have t he sam e arrangem ent on Mondays t hrough Thursdays t hat he had on Fridays. Plaint iff also cont ends t hat a fact quest ion is creat ed because Defendant s never said t hey would have given Plaint iff addit ional t im e t o go off- sit e t o pray, unt il Ms. Evers said so in her affidavit in support of Defendant ’s sum m ary j udgm ent m ot ion. Dk. 37, p. 25. That affidavit st at es in relevant part : “ had plaint iff request ed addit ional t im e t o t ravel t o an offsit e locat ion on days ot her t han Fridays when he already did t hat for prayer which was approved, his request would have been grant ed.” Dk. 36, Exh. 1, p. 2. Plaint iff does not allege t his is a sham affidavit but alludes t o t his as a “ post - hoc reason” which creat es a quest ion of fact , cit ing Plot ke v. Whit e, 405 F.3d 1092 ( 19t h Cir. 2005) . But Plot ke addressed fabricat ion of a docum ent aft er a part y represent ed no such docum ent at ion exist ed, so is 14 inapplicable here. Plaint iff has not shown any conflict bet ween Defendant s’ sworn t est im ony and Ms. Evers’ subsequent affidavit which could cast doubt on her credibilit y. Her affidavit is uncont radict ed by t he record. Plaint iff has not shown t hat Ms. Evers was aware at t he t im e she offered Plaint iff accom m odat ions for his noon prayers t hat Plaint iff t ook addit ional t im e t o go off- sit e t o pray on Fridays. But Plaint iff was undeniably aware, yet did not suggest t hat accom m odat ion. Defendant s reasonably accom m odat ed Plaint iff’s religious beliefs by offering t o let him go off- sit e daily for his noon prayers. Accordingly, Defendant s were not required t o consider ot her proposals and need not show t hat Plaint iff’s alt ernat ive proposals would result in undue hardship. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68, 107 S.Ct . 367, 93 L.Ed.2d 305 ( 1986) ( “ By it s very t erm s t he st at ut e direct s t hat any reasonable accom m odat ion by t he em ployer is sufficient t o m eet it s accom m odat ion obligat ion.... Thus, where t he em ployer has already reasonably accom m odat ed t he em ployee's religious needs, t he st at ut ory inquiry is at an end.” ) ; Thom as, 225 F.3d p. 1156 n. 7. Undue H a r dship, Ge ne r a lly The Court t hus finds it unnecessary t o reach Defendant s’ argum ent s t hat t hey were unable t o accom m odat e Plaint iff’s religious pract ice of praying at noon, wit hout undue hardship. But assum ing, arguendo, t he need 15 t o do so, t he Court finds undue hardship is an independent reason t o grant Defendant s sum m ary j udgm ent . “ Religion does not exist in a vacuum in t he workplace,” but “ coexist s ... wit h t he int ensely secular pressures of t he m arket place.” EEOC v. Firest one Fibers & Text iles Co., 515 F.3d 307, 313 ( 4t h Cir. 2008) . On t he one hand, t he principal goal of Tit le VI I is t o elim inat e discrim inat ion in em ploym ent . On t he ot her hand, Congress recognized t hat because of business necessit y and t he legit im at e right s of ot her em ployees, it could not im pose a dut y on t he em ployer t o accom m odat e at all cost s. I d. ( cit at ions and quot at ion m arks om it t ed) ; See Ansonia Bd. of Educ., 479 U.S. at 70. Tit le VI I 's religious accom m odat ion requirem ent is less dem anding t han t he accom m odat ion requirem ent in t he ADA, which defines “ undue hardship” as “ an act ion requiring significant difficult y or expense,” when considered in light of several st at ut orily enum erat ed fact ors. 42 U.S.C. § 12111( 10) ( A) . See 1990 U.S.C.C.A.N. at 350 ( House Report on ADA) . Undue hardship is not defined in Tit le VI I , so t he precise reach of t he em ployer's obligat ion m ust be det erm ined on a case- by- case basis. See Unit ed St at es v. Cit y of Albuquerque, 545 F.2d 110, 114 ( 10t h Cir. 1976) , cert . denied, 433 U.S. 909, 97 S.Ct . 2974, 53 L.Ed.2d 1092 ( 1977) . The Suprem e Court has narrowly int erpret ed Tit le VI I 's dut y t o m ake reasonable accom m odat ions, holding t hat any accom m odat ion im posing “ m ore t han a de m inim is cost ” t o 16 t he em ployer am ount s t o an undue hardship. TWA v. Hardison, 432 U.S. 63, 84, 97 S.Ct . at 2276 ( 1977) . Thus in t his case, any cost in efficiency or wage expendit ure t hat is m ore t han de m inim is const it ut es undue hardship. See Lee, 22 F.3d at 1023. Undue hardship need not be m easured solely in m onet ary expendit ures. De m inim is cost “ ent ails not only m onet ary concerns, but also t he em ployer's burden in conduct ing it s business.” Beadle v. Cit y of Tam pa, 42 F.3d 633, 636 ( 11t h Cir. 1995) , cert . denied, 515 U.S. 1152, 115 S.Ct . 2600, 132 L.Ed.2d 846 ( 1995) . To det erm ine whet her allowing or cont inuing t o perm it an em ployee t o pray, proselyt ize, or engage in ot her form s of religiously orient ed expression in t he workplace would pose an undue hardship, em ployers should consider t he pot ent ial disrupt ion, if any, t hat will be posed by perm it t ing t his expression of religious belief. … relevant considerat ions m ay include t he effect such expression has had, or can reasonably be expect ed t o have, if perm it t ed t o cont inue, on co- workers, cust om ers, or business operat ions. 12- I V REASONABLE ACCOMMODATI ON EEOCCM s 12- I V. Disrupt ion is t hus a valid fact or in det erm ining undue hardship. But t he hardship assert ed by t he Defendant m ust be real and not m erely speculat ive, and cannot be proved by assum pt ions or opinions based on hypot het ical fact s. Brown v. Polk Count y, I owa, 61 F.3d 650, 655 ( 8t h Cir. 1995) . Un du e H a r dsh ip t o D e fe n da n t s Plaint iff count eroffered t o pray at various locat ions in t he building in which Cent rinex leased space, but Defendant s rej ect ed t hose suggest ions. Defendant s assert t hat each of t hem would have caused undue hardship. 17 Plaint iff’s suggest ion t hat he conduct his daily noon prayers in t he office of Cent rinex’s H.R. direct or was unworkable because she rout inely used her office, ot hers were going in and out of it all day long, and it housed confident ial docum ent s. Perm it t ing Plaint iff t o pray in Ms. Evers’ office while she was t here would be disrupt ive t o her work. Requiring Ms. Evers t o leave her own office so Plaint iff could pray in it would also work an undue hardship because it would not only deprive her of t he benefit of having her own office but would also leave an em ployee in her office unat t ended, posing a risk of a breach of confident ialit y. I n short , Plaint iff’s suggest ion was m ost unreasonable. Plaint iff’s suggest ion t hat he use t he space out side Ms. Evers’ office was also rej ect ed because Ms. Evers believed t hat Plaint iff would have im peded t he flow of personnel in t he workspace had he prayed t here. Ms. Bat t aglia also volunt eered t hat “ t he way t he building is st ruct ured, lit erally you can’t [ pray] in t he hallway even, because … it ’s st ill disrupt ing t he work. There was nowhere t o do t hat .” Dk. 36, Ex. 4, p. 12. Such a disrupt ion would const it ut e undue hardship. Plaint iff does not t hink his praying t here would have im peded t raffic, but t his t est im ony provides only opinion, conclusion, or conj ect ure, not specific grounds or fact s t o creat e a conflict of fact or t o support a claim of pret ext . Had Plaint iff showed t hat t he hallway was t wice as wide as his prayer m at or est ablished ot her fact s support ing som e inference t hat t he 18 flow of foot t raffic around him would not have been im peded, a conflict bet ween t he t est im ony would arise. I nst ead, Plaint iff t est ified t hat t here was “ a lit t le bit of space” t here and when asked how big it was replied, “ I can’t rem em ber.” When asked t o est im at e foot age, Plaint iff t ook what he called “ a wild guess” t hat it was “ m aybe t wo feet , t hree feet .” Dk. 37, Farah Depo. p. 88- 90. Since Plaint iff’s prayer m at was approxim at ely 4 feet by 2 feet , Plaint iff’s t est im ony reaffirm s rat her t han cast s doubt on Ms. Ever’s assessm ent t hat t here was not enough room for Plaint iff t o pray t here wit hout im peding t he m ovem ent of em ployees. No m at erial quest ion of fact has been shown. Plaint iff also asked Ms. Evers about using an office on t he fift h floor t hat he t hought was not used all t he t im e. But Ms. Evers t old him none was available. Defendant was in a bet t er posit ion t han Plaint iff t o know whet her any area was regularly unused over t he noon hour in t he prem ises Cent rinex leased on anot her floor, and Plaint iff present s no fact s t o cont radict her t est im ony in t his regard. Addit ionally, t he Court does not subst it ut e t he speculat ion of an em ployee for t he j udgm ent of an em ployer, especially when t he em ployee offers only a self- serving assessm ent in response t o t he em ployer’s perspect ive. See generally Branson v. Price River Coal Co., 853 F.2d 768 ( 10t h Cir. 1988) ; Kelley v. Goodyear Tire & Rubber Co., 45 F.Supp.2d 888, 892 ( D.Kan. 1999) . Here, as above, Plaint iff fails t o offer any fact s upon which a reasonable j ury could conclude t hat t here was space 19 available daily over t he noon hour anywhere in t he fift h floor space leased by Cent rinex. Plaint iff m ay have asked Defendant s t o find som e ot her place in t he building where he could pray, but it is undisput ed t hat Defendant s had received com plaint s from t he building m anager t hat Plaint iff’s prayers in t he lobby were disrupt ing ot hers. Thus Plaint iff could not pray in t he lobby wit hout im posing an undue hardship on Defendant s. And Defendant s, as t enant s in a m ult i- office building, had no legal aut horit y t o perm it Plaint iff t o pray in ot her com m on areas of t he building. Requiring Defendant s t o lease addit ional space for t he purpose of perm it t ing Plaint iff t o pray t here would ent ail m ore t han de m inim us cost , const it ut ing an undue hardship. Defendant s have t hus shown t hat acceding t o t he accom m odat ions request ed by t he Plaint iff would have caused t hem undue hardship. Based on t he law and undisput ed fact s, Plaint iff’s claim for failure t o accom m odat e fails on t his independent ground. I V. I n t e n t ion a l D iscr im in a t ion Plaint iff brings a separat e claim of int ent ional discrim inat ion under Tit le VI I based on his alleged const ruct ive t erm inat ion. Plaint iff cont ends t hat he was given an ult im at um t o quit praying in t he building or be fired and, not want ing t o forfeit his sincerely- held religious belief, he chose t o quit . Plaint iff cont ends t hat a j ury could find t hat a reasonable person would have had no opt ion but t o resign, under t he circum st ances he faced. 20 Pr im a Fa cie Ca se Tit le VI I prohibit s an em ployer fr om discharging “ any individual ... because of such individual's ... religion.” 42 U.S.C. § 2000e- 2( a) ( 1) . “ [ A] ll aspect s of religious observance and pract ice, as well as belief” are prot ect ed. 42 U.S.C. § 2000e( j ) . Plaint iff lacks direct evidence of religious discrim inat ion, so m ust m ake a prim a facie case by t he burden- shift ing fram ework of McDonnell Douglas Corp. I n a discrim inat ory discharge case, all a plaint iff m ust show is: ( 1) he belongs t o a prot ect ed class; ( 2) he was qualified for his j ob; ( 3) despit e his qualificat ions, he was discharged; and, ( 4) t he j ob was not elim inat ed aft er his discharge. English v. Colo. Dept . of Correct ions, 248 F.3d 1002, 1008 ( 10t h Cir. 2001) . Zam ora v. Elit e Logist ics, I nc., 478 F.3d 1160, 1171 n. 5 ( 10t h Cir. 2007) . 2 Aft er a plaint iff has est ablished a prim a facie case, t he burden “ shift [ s] t o t he em ployer t o art iculat e som e legit im at e, nondiscrim inat ory reason for t he em ployee's rej ect ion.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct . 1817. Khalik v. Unit ed Air Lines, 671 F.3d 1188, 1192 ( 10t h Cir. 2012) . “ I f t he em ployer does so, t he burden shift s back t o t he plaint iff t o show t hat t he proffered reason is pret ext ual.” Zam ora, 478 F.3d at 1172. Wit h regard t o Plaint iff’s prim a facie case, t he part ies disput e only whet her Plaint iff was “ discharged.” Plaint iff cont ends and Defendant s disput e 2 This st andard is suit able for t he present case, but not for a religious- discrim inat ion claim brought against m em bers of a m inorit y religion. DeFreit as v. Horizon I nv. Managem ent Corp., 577 F.3d 1151, 1162 n. 3 ( 10t h Cir. 2009) . See Shapolia v. Los Alam os Nat 'l Lab., 992 F.2d 1033, 1038 ( 10t h Cir. 1993) . 21 t hat Plaint iff was const ruct ively discharged, m eet ing t his elem ent . Con st r u ct ive D isch a r ge Re qu ir e m e n t s To prevail on a const ruct ive discharge claim , a plaint iff m ust show eit her t hat ( 1) “ t he em ployer by it s illegal discrim inat ory act s has m ade working condit ions so difficult t hat a reasonable person in t he em ployee's posit ion would feel com pelled t o resign,” Sanchez, 164 F.3d at 534 ( quot at ion om it t ed) , or ( 2) t he em ployer by it s discrim inat ory act ions forced t he plaint iff t o choose bet w een resignat ion or t erm inat ion, Burks v. Oklahom a Publ'g Co., 81 F.3d 975, 978 ( 10t h Cir. 1996) ; Acrey v. Am . Sheep I ndus. Ass'n, 981 F.2d 1569, 1573- 74 ( 10t h Cir. 1992) . Hall v. U.S. Dept . of Labor, Adm in. Review Bd., 476 F.3d 847, 860 861 ( 10t h Cir. 2007) . Plaint iff relies only on t he first of t hese t heories, cont ending t hat Defendant s m ade his working condit ions int olerable by forcing him t o choose bet ween his j ob and his religion. Dk. 37, p. 19. I f a t hreat t o fire som eone m ay am ount t o const ruct ive discharge, t hen t he t hreat m ust place t he em ployee under duress, leaving him no opt ion but t o resign. See Jam es v. Sears, Roebuck & Co., 21 F.3d 989, 992– 993 ( 10t h Cir. 1994) ; Parker v. Board of Regent s of Tulsa Jr. College, 981 F.2d 1159, 1162 ( 10t h Cir. 1992) . The plaint iff's burden is subst ant ial. The st andard is obj ect ive: t he em ployer's subj ect ive int ent and t he em ployee's subj ect ive views on t he sit uat ion are irrelevant . Whet her a const ruct ive discharge occurred is a quest ion of fact . 555 F.3d 1224, 1228 ( 10t h Cir. 2009) ( quot at ion and cit at ions om it t ed) . I n considering whet her a const ruct ive discharge occurred, t he court considers t he t ot alit y of t he circum st ances. Narot zky v. Nat rona Cnt y. Mem 'l Hosp., 610 F.3d 558, 565 ( 10t h Cir. 2010) . Lockheed Mart in Corp. v. Adm inist rat ive Review Bd., U.S. Dept . of Labor, 717 F.3d 1121, 1133 ( 10t h Cir. 2013) . 22 N o I nt ole r a bilit y Const ruing t he fact s in t he light m ost favorable t o t he Plaint iff, t he Court finds t hat t he ult im at um given t o Plaint iff was t o resign from his j ob or t o agree t o cease conduct ing his noon prayers in t he building. Plaint iff was not asked t o choose bet ween his j ob and his First Am endm ent right t o free exercise of religion. The t ot alit y of t he circum st ances does not dem onst rat e t hat Defendant s at t em pt ed t o m ake or act ually m ade Plaint iff’s working condit ions int olerable. To t he cont rary, t he evidence shows t hat Defendant s offered t o accom m odat e Plaint iff’s religious pract ice by suggest ing som e m eans by which Plaint iff could cont inue his em ploym ent while cont inuing his noon prayers, albeit not in t he building. Those accom m odat ions, as discussed above, are reasonable as a m at t er of law. But even if t hey were not , no reasonable t rier of fact could conclude t hat Plaint iff’s workplace was “ int olerable” in light of Defendant s’ at t em pt s t o accom m odat e his religious beliefs. See Nowlin v. K–Mart Corp., 232 F.3d 902, 2000 WL 1588116 ( 10t h Cir. 2000) ( finding sum m ary j udgm ent warrant ed because em ployer's effort s t o accom m odat e em ployee's disabilit y refut ed claim of const ruct ive discharge) . Johnson v. K- Mart Corp., 131 F.3d 134, 1997 WL 741368 ( 4t h Cir. 1997) ( em ployer's offer t o allow em ployee t o work before or aft er church services on Sunday defeat ed const ruct ive discharge claim regardless of whet her em ployer's offer was a reasonable accom m odat ion under Tit le VI I ) . A reasonable person in Plaint iff’s posit ion 23 would have chosen t o pray in a locat ion ot her t han his work or t o go t o a m osque, as Plaint iff did on Fridays, rat her t han t o find Defendant ’s suggest ion t hat he pray off- sit e so int olerable t hat he had no alt ernat ive but t o quit . Because Plaint iff has not shown t hat he was const ruct ively discharged, he fails t o m ake a prim a facie case of disparat e t reat m ent . Nor do t he fact s show t hat t he working condit ions were t he result of Defendant ’s “ illegal discrim inat ory act s,” as is required. Given t he t ot alit y of t he circum st ances, including Defendant s’ reasonable accom m odat ion of Plaint iff’s prayers and Defendant s’ undue hardship were it t o accede t o Plaint iff’s request s, no inference of illegal discrim inat ion arises. I f Pr im a Fa cie Ca se , I t ’s Re bu t t e d But even if Plaint iff m akes a prim a facie case of religious discrim inat ion, Defendant s have rebut t ed it by showing a legit im at e, nondiscrim inat ory reason for it s act ions. McDonnell Douglas, 411 U.S. at 802– 03. Plaint iff shows no evidence t hat Defendant s’ request for Plaint iff t o st op praying in t he lobby was m ot ivat ed by religious anim us, and t he uncont est ed fact s show t hat request was spurred by a desire t o com ply wit h t he request from it s building m anager. And perm it t ing Plaint iff t o pray elsewhere in t he office building would have caused Defendant s undue hardship, as det ailed above. Thus t he burden ret urns t o t he Plaint iff t o show t hat t he Defendant s’ st at ed reasons are a pret ext for discrim inat ory int ent . See Elm ore v. Capst an, 58 F.3d 525, 530 ( 10t h Cir. 1995) . 24 N o Evide nce of Pr e t e x t Plaint iff cont ends “ t he pret ext in t his case is t he ut t er lack of evidence t hat plaint iff’s prayer disrupt ed anyone.” Dk. 37, p. 21. Plaint iff cont ends t hat any com plaint s from t he building m anager are hearsay, and t hat no writ t en com plaint is included in t he record. N o W r it t e n Com pla in t s The lack of any writ t en com plaint from t he building m anager or ot hers is im m at erial, since t he record does not suggest t hat any writ t en com plaint s were m ade. Adm issible, com pet ent evidence of t he building m anager’s requirem ent t hat Plaint iff cease praying in t he lobby has been present ed t hrough t he t est im ony of Ms. Evers, a com pet ent wit ness who received t hat com plaint in her capacit y as H.R Manager for Cent rinex. H e a r sa y Obj e ct ion Plaint iff m ent ions, but does not argue, t hat t he building m anager’s com plaint is inadm issible hearsay. See Dk. 35, p. 21 ( st at ing only t hat t he com plaint from Cent rinex’s landlord “ is hearsay.” ) . Accordingly, t he court finds t his obj ect ion t o be waived. See Therrien v. Target Corp., 617 F.3d 1242, 1252–53 ( 10t h Cir. 2010) ( appellant waived argum ent on appeal when it m ent ioned t he issue only once in a foot not e in it s opening brief and foot not e did not cont ain argum ent ) ; Ut ahns for Bet t er Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1169 ( 10t h Cir. 2002) ( one- sent ence NEPA argum ent waived because not briefed adequat ely) ; Unit ed St at es v. 25 Hardm an, 297 F.3d 1116, 1131 ( 10t h Cir. 2002) ( “ Argum ent s raised in a perfunct ory m anner, such as in a foot not e, are waived.” ) . But even assum ing t hat t he hearsay obj ect ion is properly preserved, t he Court finds t he challenged st at em ent t o be adm issible. The com plaint from t he building m anager is not hearsay because it is not being offered for t he t rut h of t he m at t er assert ed. Defendant s are not using t he building m anager’s st at em ent t o t ry t o prove t hat Plaint iff’s praying in t he lobby disrupt ed ot her t enant s or t heir visit ors. I nst ead, Defendant s are adm it t ing t he building m anager’s st at em ent as evidence of Defendant s’ st at e of m ind aft er receiving t his st at em ent , and t o show t he basis for Defendant s’ belief t hat it needed t o ask Plaint iff t o st op praying in t he lobby. See Faulkner v. Super Valu St ores, I nc., 3 F.3d 1419, 1434 ( 10t h Cir. 1993) ( st at em ent s offered t o show an em ployer’s st at e of m ind in m aking an em ploym ent decision are generally not hearsay, as t hey are not assert ed t o prove t he t rut h of t he m at t ers assert ed) ; See Unit ed St at es v. Lam binus, 747 F.2d 592, 597 ( 10t h Cir. 1984) , cert . denied, 471 U.S. 1067, 105 S.Ct . 2143, 85 L.Ed.2d 500 ( 1985) ( st at em ent s offered for t he effect on t he list ener are generally not hearsay) . I n con sist e n t Com pla in t s Plaint iff also cont ends t hat inconsist encies about t he alleged disrupt ion show pret ext . See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 ( 10t h Cir. 2009) ( “ A claim of pret ext ... m ay be based on weaknesses, 26 im plausibilit ies, inconsist encies, incoherencies, or cont radict ions in t he em ployer's claim ed legit im at e, non- discrim inat ory reason such t hat a rat ional t rier of fact could find t he reason unwort hy of belief.” ( int ernal quot at ion m arks om it t ed) ) . But in support of t his assert ion, Plaint iff offers only t he following: Caughron and Evers claim t hat em ployees of Cent rinex were com plaining. Bat t aglia t hought t he com plaint s were t hat plaint iff was disrupt ing Cent rinex em ployees som ehow by praying right in front of t heir cubicles. Dk. 37, p. 21. This fails t o shows an inconsist ency in t he t est im ony. Furt her, t his sum m ary of t he t est im ony is not accurat e. Bat t aglia t est ified t hat she t hought t he com plaint s were t hat Plaint iff had been praying “ on t he prem ises,” “ wit hin t he facilit y,” and was “ disrupt ing t he em ployees,” but t he t est im ony does not reveal her belief t hat Plaint iff was praying right in front of anyone’s cubicles. See Dk. 37, Exh. 2; Bat t aglia depo. pp 11- 13. Nor does Plaint iff show any support in t he record for st at ing t hat “ Caughron and Evers claim t hat em ployees of Cent rinex were com plaining.” Dk. 37, p. 21. No fact s support t hat Evers so claim ed, and Caughron’s not es, cit ed as support for t his proposit ion, st at e only t hat Plaint iff’s praying in t he lobby was “ disrupt ive t o t he ot her em ployees,” and “ [ t ] here are ot her em ployees com plaining.” Dk. 37, Exh. 5. The record t hus does not support Plaint iff’s assert ion t hat Defendant s t hought Cent rinex em ployees were com plaining about his noon prayers. 27 But even if t he Court considered an inconsist ency which Plaint iff has not argued, i.e., t hat Caughron, Evers and Bat t aglia t hought t hat Cent rinex em ployees were com plaining but t he building m anager report ed only t hat non- Cent rinex t enant s, em ployees or visit ors w ere com plaining, t his discrepancy is im m at erial and insufficient t o show pret ext . This discrepancy cast s no m at erial doubt upon t he veracit y of t he reason given t o Plaint iff for not perm it t ing him t o conduct his noon prayers in t he lobby – t hat t he building m anager had said his prayers were disrupt ing ot hers. N o Pr oof of Act u a l D isr u pt ion Plaint iff also argues t hat Defendant s cannot m eet t heir burden t o show t hat his prayers in t he lobby act ually disrupt ed anyone. But Defendant s do not bear t hat burden. The issue on sum m ary j udgm ent is whet her Defendant s legit im at ely act ed on t he basis of t he com plaint t hey received about Plaint iff. Whet her subsequent ly developed ext rinsic evidence m ight cast doubt on t he veracit y of som e of what t he com plainant s said is not relevant t o Defendant ’s nondiscrim inat ory m ot ivat ion. Sorbo v. Unit ed Parcel Service, 432 F.3d 1169 ( 10t h Cir. 2005) ( “ We have repeat edly held t hat t he relevant inquiry in such cases concerns t he belief of t he em ployer t hat t he em ployee engaged in m isconduct , not whet her t he act ual fact s, as shown by evidence ext rinsic t o t he em ployer's assessm ent , m ay have been ot herwise.” ) . See Medley v. Polk Co., 260 F.3d 1202, 1207 ( 10t h Cir. 2001) ; Kendrick v. Penske Transp. Services, I nc.,220 F.3d 1220, 1230–32 ( 10t h Cir. 28 2000) ; McKnight v. Kim berly Clark Corp., 149 F.3d 1125, 1129 ( 10t h Cir. 1998) ; Kendall v. Wat kins, 998 F.2d 848, 850- 52 ( 10t h Cir. 1993) . Defendant s have shown t hey sincerely believed t hat Plaint iff’s prayers in t he lobby were disrupt ive, since it is undisput ed t hat t hat is what t he building m anager report ed t o t hem . Plaint iff has present ed no fact s t hat raise an inference t hat no such report was ever m ade, or t hat Defendant s did not believe t he report from t he building m anager but m erely used it as an excuse t o get rid of Plaint iff because of his religion. Nor has Plaint iff shown any reason why Defendant s should have disbelieved t he building m anager’s st at em ent or conduct ed furt her inquiry. Under t he fact s of t his case, Defendant s were m ot ivat ed t o t ake adverse act ion against t he Plaint iff by t he building m anager’s report of com plaint s, and cannot be liable under a disparat e- t reat m ent t heory even assum ing t he building m anager’s report was incorrect . Because no m at erial quest ion of fact regarding pret ext has been shown, sum m ary j udgm ent is warrant ed on Plaint iff’s disparat e t reat m ent claim . V. At t or n e ys’ Fe e s Defendant s seek at t orneys’ fees under Tit le VI I and Rule 11. Under Tit le VI I , fees m ay be awarded in t he Court ’s discret ion t o a prevailing defendant if t he Court finds “ t hat t he plaint iff's act ion was frivolous, unreasonable, or wit hout foundat ion, even t hough not brought in subj ect ive bad fait h.” Christ iansburg Garm ent Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct . 29 694, 54 L.Ed.2d 648 ( 1978) ( int erpret ing 42 U.S.C. § 2000e–5( k) ) . But even claim s t hat are dism issed for failure t o st at e a claim are not aut om at ically frivolous. Jane L. v. Bangert er, 61 F.3d 1505, 1513 ( 10t h Cir. 1995) . Here, t he Court finds no evidence support ing Defendant s’ conclusion t hat Plaint iff’s case warrant s at t orneys’ fees. Sim ilarly, Defendant s have not shown t hat Rule 11 has been violat ed by t he signing of t he filed Com plaint or t hat at t orneys’ fees are warrant ed as sanct ions under t hat Rule. I T I S THEREFORE ORDERED t hat Defendant s’ m ot ion for sum m ary j udgm ent ( Dk. 35) is grant ed. I T I S FURTHER ORDERED t hat Defendant s’ request for at t orneys’ fees is denied. Dat ed t his 20t h day of Novem ber, 2013, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 30
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