Clay v. United Parcel Service, No. 2:2013cv02240 - Document 68 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER granting 56 Motion for Summary Judgment; denying 60 Motion for Summary Judgment; denying 63 Motion to Strike. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 10/15/14. (mb)
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Clay v. United Parcel Service Doc. 68 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS DANI EL WAYNE CLAY, Plaint iff, v. No. 13- 2240- SAC UNI TED PARCEL SERVI CE, I NC., Defendant . MEMORANDUM AND ORDER This em ploym ent discrim inat ion case com es before t he Court on crossm ot ions for sum m ary j udgm ent . I . Su m m a r y Ju dgm e n t St a n da r d On sum m ary j udgm ent , t he init ial burden is wit h t he m ovant t o point out t he port ions of t he record which show t hat t he m ovant is ent it led t o j udgm ent as a m at t er of law. Thom as v. Wichit a Coca–Cola Bot t ling Co., 968 F.2d 1022, 1024 ( 10t h Cir. 1992) , cert . denied, 506 U.S. 1013, 113 S.Ct . 635, 121 L.Ed.2d 566 ( 1992) . I f t his burden is m et , t he non- m ovant m ust set fort h specific fact s which would be adm issible as evidence from which a rat ional fact finder could find in t he non- m ovant 's favor. Adler v. Wal–Mart St ores, I nc., 144 F.3d 664, 671 ( 10t h Cir. 1998) . The non- m ovant m ust show m ore t han som e “ m et aphysical doubt ” based on “ evidence” and not “ speculat ion, conj ect ure or surm ise.” Mat sushit a Elec. I ndust . Co. v. Zenit h Radio Corp., 475 U.S. 574, 587, 106 S.Ct . 1348, 89 L.Ed.2d 538 ( 1986) ; Dockets.Justia.com Bones v. Honeywell I nt ern., 366 F.3d 869, 875 ( 10t h Cir. 2004) . The essent ial inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or w het her t he evidence is so one- sided t hat one part y m ust prevail as a m at t er of law.” Anderson v. Libert y Lobby, 477 U.S. 242, 251–52, 106 S.Ct . 2505, 91 L.Ed.2d 202 ( 1986) . I n applying t his st andard, all inferences arising from t he record m ust be drawn in favor of t he nonm ovant . St innet t v. Safeway, I nc., 337 F.3d 1213, 1216 ( 10t h Cir. 2003) . Credibilit y det erm inat ions and t he weighing of t he evidence are j ury funct ions, not t hose of a j udge. I d. at 1216. Nevert heless, “ t he nonm ovant m ust est ablish, at a m inim um , ‘an inference of t he exist ence of each elem ent essent ial t o [ her] case.’ ” Croy v. COBE Laborat ories, I nc., 345 F.3d 1199, 1201 ( 10t h Cir. 2003) ( quot ing Hulsey v. Km art , I nc., 43 F.3d 555, 557 ( 10t h Cir.1994) ) . I I . Pr o Se La ck of Com plia n ce W it h Ru le s The disposit ive m ot ion deadline in t his case was July 14, 2014. See Dk. 55. UPS filed it s m ot ion for sum m ary j udgm ent on t hat dat e but Plaint iff did not file his cross- m ot ion for sum m ary j udgm ent unt il August 7t h. Addit ionally, under D. Kan. Rule 6.1( d) ( 2) , plaint iff’s response t o Defendant ’s sum m ary j udgm ent m ot ion was due by August 4, 2014. Plaint iff filed it on August 7t h as well. I n accordance wit h D. Kan. Rule 56.1( f) , UPS sent plaint iff a “ Not ice t o Pro Se Lit igant Who Opposes a Sum m ary Judgm ent Mot ion,” advising Plaint iff t hat his casecould be dism issed if he did not t im ely 2 file his response brief. See Dk. 58. Plaint iff filed his unt im ely cross- m ot ion for sum m ary j udgm ent and his unt im ely response t o Defendant ’s sum m ary j udgm ent m ot ion wit hout seeking a furt her ext ension from t he Court or consult ing wit h t he Defendant . See Dk. 60, 61, 62. Therefore, pursuant t o D. Kan. Rule 7.4( b) , UPS’s m ot ion for sum m ary j udgm ent shall be decided as uncont est ed. But even if t he Court considered t he subst ance of Plaint iff’s crossm ot ion and response t o Defendant ’s m ot ion, Plaint iff would fare no bet t er. Plaint iff has at t em pt ed t o cont rovert very few of Defendant ’s fact ual assert ions, and has done so w it hout cit at ion t o t he record. Local Rule 56 requires t hat “ [ a] ll m at erial fact s set fort h in t he st at em ent of t he m ovant will be deem ed adm it t ed for t he purpose of sum m ary j udgm ent unless specifically cont rovert ed by t he st at em ent of t he opposing part y.” D.Kan. R. 56.1( a) . To specifically cont rovert fact s, t he part y m ust num ber t he fact s and “ m ust refer wit h part icularit y t o t hose port ions of t he record upon which m ovant relies.” I d. Plaint iff has not cit ed t he record in support of any of his fact s, and t he court “ will not supply addit ional fact ual allegat ions t o round out a plaint iff's com plaint or const ruct a legal t heory on plaint iff's behalf.” Whit ney v. New Mexico, 113 F.3d 1170, 1173–74 ( 10t h Cir. 1997) ( quot at ions and cit at ions om it t ed) . The court should not be t he pro se lit igant 's advocat e, Hall v. Bellm on, 935 F.2d 1106, 1110 ( 10t h Cir. 1991) , and will not accept as t rue conclusory allegat ions unsupport ed by fact ual 3 allegat ions. Oxendine v. Kaplan, 241 F.3d 1272 ( 10t h Cir. 2001) . Accordingly, for t his addit ional reason, t he Court considers Defendant ’s st at em ent of fact s t o be uncont rovert ed for purposes of t his m ot ion. This m ay seem a harsh result t o Plaint iff, who act s pro se. The Court does const rue t he subst ant ive pleadings of pro se part ies liberally. See Ogden v. San Juan Count y, 32 F.3d 452, 455 ( 10t h Cir. 1994) . But pro se lit igant s m ust com ply wit h t he procedural rules or suffer t he consequences of noncom pliance. See Nielsen v. Price, 17 F.3d 1276, 1277 ( 10t h Cir. 1994) ( “ This court has repeat edly insist ed t hat pro se part ies follow t he sam e rules of procedure t hat govern ot her lit igant s” ) . This includes t he court 's local rules. Calia v. Werholt z, 426 F.Supp.2d 1210, 1214 ( D.Kan. 2006) . The rules regarding sum m ary j udgm ent m ot ions are designed t o provide procedural fairness t o bot h part ies. See Azzun v. Kansas Dept . of Healt h and Environm ent , 2010 WL 4975557 ( D.Kan. 2010) . The Court t hus exam ines whet her t he uncont est ed fact s warrant sum m ary j udgm ent . I I I . Un con t e st e d Fa ct s UPS has a facilit y in Lenexa, Kansas where em ployees fix and repair t railers. Plaint iff began working t here in January of 2004 as a ut ilit y worker and st ayed in t hat posit ion t hroughout his em ploym ent . UPS has a zero- t olerance policy regarding workplace violence. I t s Professional Conduct and Ant i- Harassm ent Policy st at es: 4 UPS prohibit s violent behavior including, but not lim it ed t o, physical assault s, fight ing, t hreat ening com m ent s, and int im idat ion. . . . Any com m ent s or behavior t hat could be reasonably int erpret ed as an int ent t o do harm t o people or propert y will be considered a t hreat . UPS conduct s t raining wit h it s em ployees annually and as needed on t his policy, and inst ruct s it s em ployees t o review t he policy and sign an acknowledgem ent of review. During t he t raining program , m anagem ent specifically inform ed it s em ployees of t he following: t hat UPS prohibit s violent behavior, physical assault s, fight ing, t hreat ening com m ent s, and int im idat ion; t hat any com m ent s or behavior t hat could reasonably be int erpret ed as an int ent t o harm ot hers would be considered a t hreat ; and t hat em ployees should cont act m anagem ent if t hey had a conflict wit h a co- worker. On Oct ober 16, 2008, plaint iff at t ended UPS’s workplace violence prevent ion program , which t ook about 30 m inut es. Plaint iff signed UPS’s workplace violence prevent ion program docum ent aft er t hat t raining, as well as aft er sim ilar t raining in August of 2009. Defendant t erm inat ed Plaint iff’s em ploym ent four t im es for workplace violence - in Sept em ber of 2009, March of 2011, April of 2011, and Sept em ber of 2012 - but t hrough t he grievance process Plaint iff got each of t hose t erm inat ions reduced t o a suspension. As a condit ion of his suspension in Sept em ber of 2009, Plaint iff was required t o see a licensed psychologist before he ret urned t o work. And as a condit ion of his suspension in Sept em ber of 2012, Plaint iff was required t o at t end an eight - week anger 5 m anagem ent sem inar before ret urning t o work, and Plaint iff’s union gave him a final warning. His lawsuit relat es prim arily t o his fift h t erm inat ion, which was not reduced t o a suspension. Pla in t iff’s Fift h a n d Fin a l Te r m in a t ion for W or k pla ce Viole n ce On March 7, 2013, during a pre- shift fire drill, Carlo Leone, aut om ot ive supervisor, saw Plaint iff and co- worker Pascal Kinsey walking about t en feet apart in t he parking lot . Leone heard Kinsey t ell t he Plaint iff t o leave him alone and st ay away from him . Leone t old t hem t o knock t he playing off before som ebody got serious. Plaint iff and Kinsey separat ed t hen walked back int o t he building wit hout incident aft er t he fire drill. When t he work shift ended at 3: 30 a.m ., Kinsey went t o t he parking lot t hen ret urned t o t he building short ly t hereaft er. He t old fleet supervisor Joel Johnson t hat plaint iff had t hreat ened him in t he parking lot by saying he was going t o knock him out . Johnson looked out side, saw t hat plaint iff was no longer in t he parking lot , t hen followed Kinsey out t he door and wat ched him safely leave. Johnson t hen report ed Kinsey’s com plaint t o Jam es Francis. Soon t hereaft er, Jam es Francis, Scot t Karr ( a securit y m anager) , and ot her m anagem ent represent at ives conduct ed a series of wit ness int erviews. Kinsey report ed t hat on March 7t h, he and plaint iff had exchanged words and gest ures. Plaint iff had m ade com m ent s about Kinsey’s m ilit ary background and had t old him he was “ not built right .” They cont inued t o 6 exchange words unt il aft er t he fire drill. When t heir shift ended at 3: 30 a.m ., Kinsey went t o warm up his vehicle and Plaint iff walked out side and said, “ I t ’s 3: 30 nigga so now what ’s up.” Kinsey responded, “ You need t o get in your car and go hom e. I ’m not going t o lose m y j ob fooling wit h you.” Kinsey walked back inside and t old Johnson t hat Plaint iff was out side wait ing t o fight him . Kennet h St ut eville, plaint iff’s co- worker, was also int erviewed. He report ed t hat plaint iff and Kinsey had exchanged words during t he pre- shift m eet ing, and t hat Kinsey had flipped off t he Plaint iff. Plaint iff and Kinsey cont inued exchanging words during t he fire drill unt il Leone t old t hem t o st op. When t he shift resum ed, St ut eville t hought t hat Plaint iff was st ill upset wit h Kinsey and t old Plaint iff t o “ let it go or drop it .” St ut eville said t hat around 3: 30 a.m . when t hey left t he building, “ Daniel m ade com m ent s t o Pascal out side t rying t o get him t o fight .” St ut eville heard Plaint iff say, “ it ’s 3: 30 now let ’s fight , let ’s do t his! ” St ut eville t hen saw Kinsey ret urn t o t he building. St ut eville subm it t ed a writ t en st at em ent of his account . Plaint iff was int erviewed and init ially denied m aking any com m ent s, t hen st at ed “ I m ight have m ade som e com m ent s, what .” Plaint iff adm it t ed t elling Kinsey t hat he “ wasn’t built right ” and t hat t he t wo exchanged words. Plaint iff adm it t ed he m ight have said som et hing t o Kinsey, such as: “ I t ’s 3: 30! ” and m aybe “ let ’s get out of here.” Plaint iff was asked t o provide a writ t en st at em ent of his account but refused. 7 Aft er t he invest igat ion, Jam es Francis t erm inat ed bot h Plaint iff and Kinsey effect ive March 12t h. All t hree of t hose persons are African Am erican. Francis relied on wit ness int erviews, t he invest igat ion report , t he wit ness st at em ent s, plaint iff’s previous t erm inat ions, and plaint iff’s hist ory of workplace violence. On March 18, 2013, Plaint iff filed m ult iple grievances cont est ing his t erm inat ion. At his local hearing on April 9, 2013, Plaint iff claim ed t hat several years earlier he had com plained about a confederat e flag license plat e in a co- worker’s rear window in Defendant ’s parking lot and Darrall Abels had t old him t hat UPS had no cont rol over t hat . Plaint iff argued t hat UPS t herefore had no power t o discipline him for t he incident in t he parking lot t hat gave rise t o his t erm inat ion. Plaint iff’s union st eward, Clint Long, responded t hat UPS could not cont rol what em ployees placed on t heir personal propert y in t he parking lot saying, “ you could have a Black Pant her st icker and t hey can’t do not hing about it .” Wassel echoed, “ You can have Black Pant her st icker.” Offended by t hat exam ple, plaint iff filed a post t erm inat ion grievance on April 9, 2013 - t he only grievance he ever filed alleging a racial com m ent . Plaint iff never com plained t o eit her Darrel Abels or Jam es Francis about racial harassm ent or offensive language on t he radio. Plaint iff filed a grievance cont est ing his t erm inat ion but it deadlocked at t he local hearing and at t he subsequent t wo- m an panel. His grievance 8 was t herefore decided by t he Cent ral Region Joint Area Com m it t ee in Traverse Cit y, Michigan, where it was denied. I V. M ot ion t o St r ik e The court first addresses Plaint iff’s m ot ion t o st rike m ult iple em ployee st at em ent s t hat Defendant relies on in it s sum m ary j udgm ent m ot ion. Plaint iff cont ends t he st at em ent s are inadm issible because t hey are not in affidavit form , as t he relevant rule requires. See Fed.R.Civ. Pro. 56( c) , ( e) . Defendant responds t hat t he part ies st ipulat ed in t he pret rial order t o t he adm issibilit y of t hese records. The pret rial order st at es t he part ies st ipulat ed t o t he adm issibilit y of “ Plaint iff’s em ploym ent records ( UPS 252- 338; 370- 928, 930- 935, 9411005; 1014- 1066; 1086- 1265) .” Dk. 53, p. 2. All of t he wit ness st at em ent s t hat Plaint iff seeks t o st rike are included wit hin t hat st ipulat ion. See UPS 416, Marlier st at em ent ; UPS 266- 268, Karr invest igat ive report ; UPS 280, 290 Leone st at em ent s; UPS 423, Snell St at em ent ; UPS 275, Johnson st at em ent ; UPS 371- 376, Ferguson invest igat ion report ; UPS 575- 577, St ut eville st at em ent s; and UPS 282, Kinsey st at em ent . Fact ual “ st ipulat ions are binding on t he part y who m akes t hem , see Christ ian Legal Soc. Chapt er of Univ. of Cal., Hast ings College of Law v. Mart inez, 561 U.S. __, 130 S.Ct . 2971, 177 L.Ed.2d 838.” St andard Fire I ns. Co. v. Knowles, __ U.S. __, 133 S.Ct . 1345, 1346 ( 2013) . But “ a st ipulat ion on t he adm issibilit y of evidence concerns a quest ion of law for t he court and 9 is not binding on t he court .” Unit ed St at es v. Dyer, 752 F.2d 591, 595 ( 11t h Cir. 1985) . Nonet heless, m ost “ evident iary provisions … are subj ect t o waiver by volunt ary agreem ent of t he part ies.” Unit ed St at es v. Mezzanat t o, 513 U.S. 196, 115 S.Ct . 797 ( 1995) . This is such a provision, t hus Plaint iff is bound by his st ipulat ion. Because plaint iff agreed t o t he adm issibilit y of t he very records he seeks t o st rike, t his m ot ion shall be denied. V. Se ct ion 1 9 8 1 Ra cia l Te r m in a t ion Plaint iff first cont ends t hat his t erm inat ion on March 12, 2013, was based on his race, African Am erican, in violat ion of 42 USC § 1981. A. D ir e ct v. Cir cu m st a n t ia l Evide n ce Plaint iff cont ends t hat t he following const it ut e direct evidence of discrim inat ion: ( 1) a declarat ion subm it t ed by Curt is Spaw; ( 2) UPS’s professional conduct and ant i- harassm ent policies; ( 3) plaint iff’s grievances, ( 4) defendant ’s adm ission t o [ not ] t erm inat ing or disciplining a whit e coworker, but t erm inat ing Plaint iff t wice and anot her African Am erican once; and ( 5) t he presence of a confederat e flag on a license plat e in it s parking lot . See Dk. 61, pp. 13- 14. Spaw’s declarat ion m erely offers t he union st eward’s perspect ive on several incident s involving t he Plaint iff. ( Dk. 61, pp 54- 55) . “ 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.” Danville v. Regional Lab Corp., 292 F.3d 1246, 1249 ( 10t h Cir. 2002) . Such evidence “ if believed, 10 proves t he exist ence of a fact in issue wit hout inference or presum pt ion.” Hall v. Unit ed St at es Dept . of Labor, 476 F.3d 847, 854- 55 ( 10t h Cir. 2007) . Direct evidence requires “ proof of an exist ing policy which it self const it ut es discrim inat ion,” Tom sic v. St at e Farm Mut . Aut o. I ns. Co., 85 F.3d 1472, 1477 ( 10t h Cir. 1996) ( quot at ions om it t ed) , or “ oral or writ t en st at em ent s on t he part of a defendant showing a discrim inat ory m ot ivat ion,” Kendrick v. Penske Transp. Servs., I nc., 220 F.3d 1220, 1225 ( 10t h Cir. 2000) . “ A st at em ent t hat can plausibly be int erpret ed t wo different ways- one discrim inat ory and t he ot her benign- does not direct ly reflect illegal anim us, and, t hus, does not const it ut e direct evidence.” Pat t en v. Wal- Mart St ores East , I nc., 300 F.3d 21, 25 ( 1st Cir. 2002) ( quot at ion om it t ed) . 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. See Short er, 188 F.3d at 1207. Hall, 476 F.3d at 854- 55. None of t he docum ent s not ed above and no evidence of record const it ut es direct evidence. B. Pr im a Fa cie Ca se – § 1 9 8 1 Because Plaint iff has present ed no direct evidence of discrim inat ion, t he Court relies on t he burden- shift ing analysis set fort h in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct . 1817, 1824, 36 L.Ed.2d 668 ( 1973) . See Drake v. Cit y of Fort Collins, 927 F.2d 1156, 1162 ( 10t h Cir. 1991) . To m ake a prim a facie case of racial t erm inat ion absent direct evidence, a plaint iff m ust generally dem onst rat e: ( 1) he was a m em ber of a prot ect ed class; ( 2) he was qualified and sat isfact orily perform ing his j ob; and ( 3) he was t erm inat ed under circum st ances giving rise t o an inference of discrim inat ion. Barlow v. C.R. England, I nc., 703 F.3d 497, 505 ( 10t h Cir. 11 2012) . An inference of discrim inat ion m ay be shown in various ways, including, “ act ions or rem arks m ade by decisionm akers,” “ preferent ial t reat m ent given t o em ployees out side t he prot ect ed class,” or “ t he t im ing or sequence of event s leading t o plaint iff's t erm inat ion.” Plot ke v. Whit e, 405 F.3d 1092, 1101 ( 10t h Cir. 2005) . Defendant cont ends t hat Plaint iff cannot show race discrim inat ion because t he decisionm aker, Francis, was t he sam e race as t he Plaint iff. But t he Suprem e Court has explicit ly rej ect ed a conclusive “ sam e group inference” in t he cont ext of race and sex discrim inat ion cases. Oncale v. Sundowner Offshore Servs., I nc., 523 U.S. 75, 78, 118 S.Ct . 998, 140 L.Ed.2d 201 ( 1998) ( explaining t hat “ [ b] ecause of t he m any facet s of hum an m ot ivat ion, it would be unwise t o presum e as a m at t er of law t hat hum an beings of one definable group will not discrim inat e against ot her m em bers of t heir group” ) ( int ernal quot at ion m arks om it t ed) . See Saint Francis College v. Al–Khazraj i 481 U.S. 604, 605, 107 S.Ct . 2022, 2023–2024, 95 L.Ed.2d 582 ( 1987) ( rej ect ing t he cont ent ion t hat § 1981 does not encom pass claim s of discrim inat ion by one Caucasian against anot her) . Nonet heless, t he fact t hat t he decisionm aker and t he plaint iff are in t he sam e prot ect ed class should not be ignored. Alt hough t he fact is not disposit ive, proof t hat t he decisionm aker is a t he sam e race as t he plaint iff considerably underm ines t he probabilit y t hat race was a negat ive fact or in t he em ploym ent decision. See Kidd v. Greyhound Lines, I nc., 2005 WL 3988832, 4 ( E.D.Va. 2005) ( finding “ a st rong inference t hat racial discrim inat ion was not a det erm ining fact or for t he adverse act ion” when t he person who bot h 12 hired and fired t he African–Am erican plaint iff is also an African– Am erican” ) , aff'd, 135 Fed.Appx. 615 ( 4t h Cir.) , cert . denied, 546 U.S. 1006, 126 S.Ct . 629, 163 L.Ed.2d 511 ( 2005) ; Taylor v. Proct er & Gam ble Dover Wipes, 184 F.Supp.2d 402, 413 ( D.Del.2002) ( finding inference of discrim inat ion “ less plausible” when t he decision- m aker is t he sam e race as t he plaint iff, m aking t he likelihood t hat a supervisor's st at em ent evidenced discrim inat ion “ rem ot e.” ) , aff'd, 53 Fed.Appx. 649 ( 3rd Cir. 2002) ; Raj bahadoorsingh v. Chase Manhat t an Bank, NA, 168 F.Supp.2d 496 ( D.Vi.2001) ( finding, where plaint iff and decisionm aker were of sam e race, “ it is hard t o fat hom how [ decision- m aker's] st at em ent s could be const rued t o show t hat [ plaint iff's] t erm inat ion was racially m ot ivat ed” ) ; Kendrick v. Penske Transp. Servs., I nc., 1999 WL 450886 at * 7 ( D.Kan. Apr.13, 1999) ( race discrim inat ion case not ing, “ t he plaint iff m ay have difficult y est ablishing discrim inat ion where t he alleged discrim inat ory decision- m aker is in t he sam e prot ect ed class as plaint iff” ) aff'd, 220 F.3d 1220 ( 10t h Cir. 2000) ; Anderson v. Anheuser–Busch, I nc., 65 F.Supp2d 218, 229 ( S.D.N.Y. 1999) ( finding fact t hat plaint iff and a decision- m aker were bot h black “ weakens t he inference of discrim inat ion” ) , aff'd, 229 F.3d 1135 ( 2d Cir. 2000) . Alm on v. Goodyear Tire and Rubber Co., 2009 WL 1421199 at 7 ( D.Kan. 2009) . Here, t he fact t hat Francis is t he sam e race as t he Plaint iff underm ines t he likelihood t hat race w as a negat ive fact or in his decision t o t erm inat e his em ploym ent . Plaint iff addit ionally cont ends t hat Defendant did not t erm inat e or discipline a whit e co- worker involved in t he sam e 2011 incident he was, but t erm inat ed Plaint iff. For t he t reat m ent of anot her em ployee t o be evidence of discrim inat ion, t he ot her em ployee m ust have been sim ilarly sit uat ed, which m eans t hat “ t hey deal[ t ] wit h t he sam e supervisor, [ we] re subj ect ed t o t he sam e st andards governing perform ance evaluat ion and discipline, and [ were] engaged in conduct of com parable seriousness.” E.E.O.C. v. PVNF, 13 L.L.C., 487 F.3d 790, 801 ( 10t h Cir. 2007) ( int ernal quot at ion m arks om it t ed) . Plaint iff apparent ly refers t o t he incident s wit h Ms. Marlier in 2011 or t o t he incident wit h Mr. Kronawit t er in 2011. But Plaint iff does not show t hat eit her of t hose persons was sim ilarly sit uat ed t o him . And Jam es Francis, t he decisionm aker in t he relevant decision ( Plaint iff’s t erm inat ion in 2013) was not involved in any of t hose earlier decisions t o t erm inat e t he Plaint iff or not t o t erm inat e whit e persons. I nst ead, t he earlier t erm inat ion decisions were m ade by Mr. Abels or Ms. Ferguson. Thus no inference of racial discrim inat ion on t he part of Mr. Francis can arise from t hese fact s. Plaint iff also believes t hat Defendant previously t old him it s aut horit y t o discipline did not ext end t o t he parking lot , yet he was t erm inat ed in 2013 for an incident in t he parking lot . Here, Plaint iff refers t o his com plaint t o Mr. Abels in Novem ber of 2009 t hat Ms. Marlier had a confederat e flag license plat e in t he rear window of her vehicle, and t o Mr. Abels’ response t hat he could not discipline her for t hat . But m anagem ent reasonably explained t o Plaint iff t he difference bet ween perm it t ing an em ployee t o display a flag in her own vehicle and prohibit ing em ployees from fight ing in t he parking lot . Not hing in t hose circum st ances raises an inference of discrim inat ion. Plaint iff has not shown ot her ways in which his t erm inat ion is suspect . Plaint iff does not allege t hat t he decisionm aker, Jam es Francis, ever exhibit ed racial anim us in his act ions or rem arks. And Plaint iff had a hist ory 14 of workplace violence for which he had been suspended ( post - grievance) four t im es. As a condit ion of his suspension in Sept em ber of 2009, Plaint iff was required t o see a licensed psychologist before he ret urned t o work. And as a condit ion of his suspension in Sept em ber of 2012, Plaint iff was required t o at t end an eight - week anger m anagem ent sem inar before ret urning t o work. Plaint iff’s union gave him a final warning in Sept em ber of 2012, yet he engaged in conduct t hereaft er wit h Kinsey which ot her wit nesses report ed as t hreat ening t o fight . Bot h he and Kinsey were t erm inat ed for having engaged in conduct t hat violat ed Defendant ’s zero t olerance policy. The fact s est ablished by t he record fail t o give rise t o an inference of discrim inat ion as is necessary t o est ablish a prim a facie case of racial t erm inat ion. C. Pr e t e x t But even if an inference of discrim inat ion is raised, Defendant has m et it s burden t o offer a legit im at e, non- discrim inat ory reason for it s decision in st at ing t hat Plaint iff was t erm inat ed for his violat ion of it s Workplace Violence Policy. And Plaint iff has failed t o produce enough evidence t o raise a genuine disput e of m at erial fact t hat t he st at ed reason for his firing was pret ext ual. Not hing raises a genuine issue of m at erial fact t hat t he given reason was not Defendant ’s t rue reason for Plaint iff’s t erm inat ion, but was inst ead a pret ext for racial discrim inat ion. 15 VI . Ra cia l H a r a ssm e n t Plaint iff also brings a claim of racial harassm ent under bot h § 1981 and Tit le VI I . Tit le VI I and § 1981 proscribe em ploym ent pract ices t hat “ perm eat e t he workplace wit h ‘discrim inat ory int im idat ion, ridicule, and insult t hat is sufficient ly severe or pervasive t o alt er t he condit ions of t he vict im 's em ploym ent and creat e an abusive working environm ent .’ ” Tadem y v. Union Pacific Corp., 520 F.3d 1149, 1156 ( 10t h Cir. 2008) ( int ernal cit at ion and quot at ion om it t ed) . The plaint iff m ust dem onst rat e t hat t he work environm ent was obj ect ively and subj ect ively offensive, but need “ not dem onst rat e psychological harm , nor ... show t hat [ his] work suffered as a result of t he harassm ent .” Walker v. Unit ed Parcel Serv. of Am ., 76 Fed.Appx. 881, 885 ( 10t h Cir. 2003) . I n addit ion, t o t he ext ent plaint iff alleges racial harassm ent by a coworker as opposed t o a supervisor, plaint iff m ust est ablish em ployer liabilit y for t he harassm ent . This is usually done t hrough a negligence t heory t hat t he em ployer knew or should have known about t he conduct and failed t o st op it . Bert sch v. Overst ock.com , 684 F.3d 1023, 1027 ( 10t h Cir. 2012) . The Court exam ines all t he circum st ances in det erm ining if an environm ent is obj ect ively host ile, including “ t he frequency of t he discrim inat ory conduct ; it s severit y; w het her it is physically t hreat ening or hum iliat ing, or a m ere offensive ut t erance; and whet her it unreasonably 16 int erferes wit h an em ployee's work perform ance.” Faragher v. Cit y of Boca Rat on, 524 U.S. at 787–88, 118 S.Ct . 2275 ( quot ing Harris v. Forklift Syst em s, I nc., 510 U.S. at 21, 114 S.Ct . 367) ( int ernal cit at ions and quot at ions om it t ed) . “ Conduct t hat is not severe or pervasive enough t o creat e an obj ect ively host ile or abusive work environm ent - an environm ent t hat a reasonable person would find host ile or abusive- is beyond Tit le VI I 's purview.” Harris, 510 U.S. at 21. Sim ilarly, harassm ent t hat is not racial or does not st em from anim us based on a prot ect ed class is not prohibit ed. See Chavez v. New Mexico, 397 F.3d 826, 831–32 ( 10t h Cir. 2005) . Thus t he law provides no rem edy for boorish behavior or bad t ast e. Duncan v. Manager, Dept . of Safet y, Cit y & Count y of Denver, 397 F.3d 1300, 1313- 14 ( 10t h Cir. 2005) . So incident s spread out over m any years which indicat e m ost ly poor t ast e and lack of professionalism usually do not rise t o t he level of a host ile work environm ent . See, e.g., Penry v. Federal Hom e Loan Bank of Topeka, 155 F.3d 1257, 1263 ( 10t h Cir. 1998) . Such is t he case here. A. H a r a ssm e n t by Co- w or k e r s Plaint iff appears t o allege t he following harassing act s or st at em ent s by co- workers: in Sept em ber of 2012, a black co- worker alluded t o t he size of his ow n genit alia; t wo co- workers list ened t o Rush Lim baugh on t he radio all t he t im e and he had t o list en as well; a co- worker t old plaint iff a j oke t hat used racially offensive t erm s; and a co- worker ( Ms. Marlier) displayed a 17 confederat e flag in t he back window of her car in defendant ’s parking lot . The first t wo of t hese have not arguably been shown t o have been based on or relat ed t o race. Plaint iff com plained about t he flag, Defendant invest igat ed it , found no racial anim us, and concluded t hat t he em ployee was free t o display t he flag in her car window. This was a reasonable conclusion which does not dem onst rat e race discrim inat ion on t he part of t he em ployer. See Erickson v. Cit y of Topeka, Kan., 209 F.Supp.2d 1131 ( D.Kan. 2002) ( finding em ployee had free speech right t o display confederat e flag in car window of parking lot and t hat such speech did not const it ut e prohibit ed racial harassm ent under Tit le VI I ) . Plaint iff refers t o one racial j oke, but does not allege he ever com plained t o Defendant about it . But even assum ing t hat Defendant was aware of it , isolat ed incident s of harassm ent do not const it ut e pervasive conduct . See Braden v. Cargill, I nc., 176 F.Supp.2d 1103, 1112 ( D.Kan. 2001) , cit ing cases. B. H a r a ssm e n t by M a n a ge m e n t Defendant also alleges t he following harassing act s by m anagem ent : Jerry Wassel, t he labor m anager, t old him during post - t erm inat ion grievance hearings t hat he could put a black pant her st icker on his car, and t hat he had a “ sick m ind.” This lat t er com m ent has not been shown t o have any relat ion t o Plaint iff’s race. The black pant her com m ent was m ade aft er 18 Plaint iff was t erm inat ed and does not raise an inference of discrim inat ion before or at t he t im e of t erm inat ion. That com m ent was first m ade by plaint iff’s union st eward in a post - t erm inat ion hearing in 2013, and was im m ediat ely repeat ed by Wassel wit h t he int ent of helping Plaint iff underst and t he difference bet ween his engaging in workplace violence in t he parking lot and an em ployee put t ing a flag in her car window in t he parking lot . These circum st ances, alt hough subj ect ively offensive t o t he Plaint iff, neit her raise a reasonable inference of racial anim us on t he part of Jam es Francis, nor are t hey severe or pervasive enough t o be act ionable harassm ent . The sam e is t rue when one com bines t he act s of Plaint iff’s coworkers wit h t hose of m anagem ent . I T I S THEREFORE ORDERED t hat Defendant ’s m ot ion for sum m ary j udgm ent ( Dk. 56) is grant ed and t hat Plaint iff’s m ot ion for sum m ary j udgm ent ( Dk. 60) is denied. I T I S FURTHER ORDERED t hat Plaint iff’s m ot ion t o st rike ( Dk. 63) is denied. Dat ed t his 15t h day of Oct ober, 2014, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 19
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