United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF DOC. 25
JOHN L. KANE, District Judge.
This grocery store employment discrimination dispute is before me on a Motion for Summary Judgment, Doc. 25, filed by Defendant Dillon Companies, Inc. d/b/a/King Soopers. For the reasons that follow, King Soopers' motion is GRANTED as to the reassignment claims and the ADA discrimination based discharge claim, and otherwise DENIED as to all remaining claims.
I. Jurisdiction, Venue, Choice of Law
Mr. Aman states thirteen claims for relief under Title VII, 42 U.S.C § 1981, and the American with Disabilities Act (42 U.S.C. § 12101 et. seq. ) (the "ADA"). Because Mr. Aman's causes of action arise under federal law, I have original jurisdiction per 28 U.S.C. § 1331. I also have jurisdiction under 28 U.S.C. § 1343(a) because Mr. Aman seeks relief for the alleged deprivation of his federally protected rights and privileges. The parties stipulate that a substantial part of the events or omissions giving rise to Mr. Aman's claims occurred in Colorado, therefore venue is proper under 28 U.S.C. § 1391(b)(2). Compl. ¶ 2; Answer ¶ 2.
II. Summary Judgment Legal Standard
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A disputed fact is material if it could affect the outcome of the suit under the governing law. Adamson, 514 F.3d at 1145. A factual dispute is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. The moving party bears the burden of showing that no genuine issue of material fact exists. Adamson, 514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden by showing a lack of evidence for an essential element of the nonmovant's claim. Id. In deciding whether the moving party has carried its burden, I may not weigh the evidence and must view the evidence and draw all reasonable inferences from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Adamson, 514 F.3d at 1145. Neither unsupported conclusory allegations nor a mere scintilla of evidence in support of the nonmovant's position are sufficient to create a genuine dispute of fact. See Mackenzie v. City and County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).
III. Factual Background
Moe Aman immigrated to the United States from Ethiopia in 1999 and shortly thereafter became an employee of Defendant King Soopers. Ex. 1, 20:15-22:14. He worked for King Soopers for 7.5 years, from November 13, 2000 until his termination on May 27, 2008. King Soopers is a Colorado-based supermarket chain wholly owned by Dillon Companies, a Kansas corporation. Mr. Aman worked at two different King Soopers stores in Denver, Colorado during his employment. The relevant events to this case took place at Store #5 under the management of Jack Ruby, an employee with a 39 year history at King Soopers, 14 of which as a store manager. Ex. 5, 5:10-6:21. Mr. Ruby has been the store manager at Store #5 for 12 years. Id.
For most of his tenure, Mr. Aman was employed at Store #5 as a part-time produce clerk. Per the produce clerk written job description, his duties in that role included lifting and carrying loads of produce, unloading delivery trucks, and stocking the produce department. Ex. 22 (produce clerk job description). The testimony of Mr. Aman himself as well as others repeatedly confirms this paper requirement as also a requirement in fact. Ex. 1, 52:5-55:4 (Mr. Aman describing his produce clerk duties as including: "Cashier, stocking, customer service, loading and unloading trucks."); see also Ex. 5, 16:14-17:2 (Mr. Ruby describing Mr. Aman's primary duties and problems with his performance of those duties).
Mr. Aman began working at Store #5 in February 2006. Initially, his supervisors were produce manager, Don Gordy, and assistant produce manager, Chris Bateson. Both are white males. Mr. Aman claims to have endured a litany of abuses at the hands of Messrs. Gordy and Bateman from the very start of his employment at Store #5. Mr. Aman alleges that while he received a warm welcome from all of the other employees present on his first day, Mr. Bateson refused to shake his hand. Ex. 1 at 129:6-13. He was told later that day by an African American employee that Mr. Bateson does "not like black people, " and referred to them as "African monkey[s]." Id. at 129:11-21. Although apparently never called an "African monkey" by Mr. Bateson, once in early 2007 Mr. Bateson called him a "lazy African" because he mistakenly believed that Mr. Aman had left a shipment of strawberries unrefrigerated. Id. at 130:9-17;131:13-25. Also in early 2007, Mr. Gordy once called Mr. Aman an "African monkey while the two were working in the stockroom, and Mr. Gordy referred to him as an "African lion" sometime after that. Id. at 143:19-25; 144:1-9.
During this time period Mr. Gordy and Mr. Bateson allegedly twice changed Mr. Aman's schedule by taking hours away from Mr. Aman and giving them to an employee with less seniority and who also happens to be Mr. Ruby's nephew-in-law. Ex. 1 at 125:6-128:19. Mr. Aman later filed a grievance over these alleged changes with his union, the United Food and Commercial Workers Union. Ex. 17 at 1094.
According to Mr. Ruby and his assistant manager, Terri Smith, however, Mr. Aman had a history of misunderstanding how the King Soopers' scheduling system operated. Ex. 5 at 145:10-148:1 (Mr. Ruby describing times when Mr. Aman complained to him); Ex. 9 at 58:15-60:21 (Ms. Smith describing incident where she had to explain how scheduling worked after Mr. Aman complained that his lack of hours was racially motivated). Ms. Smith, who is African American, attempted to explain to Mr. Aman that King Soopers allocates a specific number of hours per department for a scheduling period, and managers have an obligation under the collective bargaining agreement between the company and Union to ensure that all part-time employees get at least 20 hours per week. Ex. 9 at 58:19-60:18; see also Ex. 4 at 9:14-10:15 (assistant produce manager Robbie Casados describing how hourly employees select shifts and the hours allocation process for part-time employees). According to another hourly produce employee, Marcey Goldis, Ms. Smith provided additional training on selecting shifts to all of the produce employees to prevent further disagreement. Ex. 15 at 60:9-21 (Ms. Goldis describing Ms. Smith's re-training).
Additionally, Mr. Ruby attempted to explain how the scheduling system worked when Mr. Aman complained about his hours. Ex. 5, 145:25-148:1. According to Mr. Ruby, Ms. Smith spent considerable time with Mr. Aman explaining the scheduling system to him and generally attempting to help him develop as an employee. Ex. 5 at 16:11-17:7. On December 4, 2007, the Union withdrew Mr. Aman's scheduling complaint, finding he was indeed offered the most possible hours available to him at the time. Ex. 17 at 1095, 1097.
A. Mr. Aman's Workers' Compensation Claim and Termination
Mr. Aman's relationship with Mr. Gordy came to a head on May 7, 2007 when Mr. Gordy pushed a cart into Mr. Aman and another employee in the store's stockroom. Ex. 1 (Behavior Notice statement). Mr. Aman was injured and Mr. Gordy was fired. Id. (reason for Mr. Gordy's discharge); Ex. 2 (Termination Form for Mr. Gordy). Mr. Aman suffered back problems from the incident and filed a workers' compensation claim. Ex. 1; Ex. 5 (Physician's Report of Worker's Compensation Injury). After a course of various treatment, his appointed physician, Dr. Franklin Shih, concluded on October 11, 2007 that Mr. Aman had reached his Maximum Medical Improvement (MMI). Id. Dr. Shih diagnosed Mr. Aman with a Permanent Impairment to his back, and provided the following Permanent Restrictions: Lifting, carrying, pushing, and pulling all limited to no more than thirty pounds on an occasional basis. Id.
Despite his restrictions, Mr. Aman continued to work as a produce clerk throughout 2007. King Soopers' management provided accommodation for him during this time. Specifically, King Soopers allowed Mr. Aman to rely heavily upon "buddy lifts, " by which another employee would aid him to move objects over 30 pounds. Ex. 5 at 27:4-28:14 (Mr. Ruby's description of Mr. Aman's accommodation with the "buddy lift"). In addition to this accommodation, Mr. Aman, because of his seniority, was often able to avoid heavy lifting by selecting shifts working in the "cut fruit" section of the produce department. Id. at 21:9-24:11 (Mr. Ruby describing the cut fruit position, how Mr. Aman could select this shift, and the lifting accommodations made during the cut fruit shift). The cut fruit shift did not require frequent lifting over 30 pounds. Id. Mr. Ruby and Ms. Smith were both aware of Mr. Aman's restrictions and accommodation. Id.; Ex. 10 at 10:25-11:1 (Smith deposition).
In March 2008 Mr. Aman obtained a second diagnosis by requesting an Independent Medical Examination (IME) through the workers' compensation program. Ex. 24 (request for IME); Ex. 25 at 2 (IME results). The IME, performed by a different, independent physician, Dr. John Tobey confirmed that Mr. Aman had reached MMI, recommended that the earlier restrictions should remain in place, and prescribed a pain management regimen. Ex. 25 at 3, 5.
King Soopers' Personnel Policies manual requires an employee assessment to be conducted after a determination of MMI in order to identify other positions the employee could do without accommodation. Ex. 11 at 31-32. Per this policy, on or about May 2, 2008 Mr. Aman met with Dimitri Clarke, a labor relations specialist with King Soopers. Ex. 6 at 21:19-22:17 (Bouknight deposition); Ex. 28 (Clarke email). During this meeting or shortly thereafter, Ms. Clarke made clear to Mr. Aman that his permanent inability to lift over thirty pounds made him ineligible under King Soopers' policies to continue as a produce clerk and that he was being offered a position at the service desk. Ex. 13 at 11:21-28; Ex. 5 at 41:4-8; Ex. 27 at AMAN195; Ex. 28. Because service desk employees earn less per hour than produce clerks, Mr. Aman did not want to be reassigned to a service desk position and requested a leave of absence instead. Despite some initial indication that this might be possible by Ms. Clarke, Ms. Clarke's supervisor, labor and employee relations manager Stephanie Bouknight, intervened to clarify to Mr. Ruby that the company's policy did not permit a leave of absence if there was a job available for the employee. Ex. 5 at 40:17-41:18; see also Ex. 11 at 32 (company policy regarding leaves of absence).
On May 8, 2008, King Soopers provided Mr. Aman with formal notice of his assignment to the service desk. Management's decision to move Mr. Aman to the service desk was premised on the fact that Store #5 did not require service desk employees to move any objects over thirty pounds. Ex. 7 at 31:5-35:25; P. Ex. 8 (letter of notification sent to Mr. Aman from Ms. Clarke). Per the reassignment, Mr. Aman was reclassified as a "GG clerk, " a classification encompassing both service desk workers and general merchandise workers. See foonote 4.
Mr. Aman was scheduled to begin at the service desk on May 13, 2008. Ex. 16 at 2. Mr. Aman, however, never actually worked a shift at the service desk. The record indicates Mr. Aman called in sick on May 13, 2008, and did not show up for work during any of his scheduled shifts until he was removed from the schedule and terminated on May 27, 2008.
Mr. Aman's phone records indicate calls into Store #5 early in the morning of May 13, late in the evening on May 13 (apparently to call in sick for the 14th), the early mornings of May 16 and May 17, and two calls on the morning of May 18. Pl. Ex. 9. King Soopers' daily schedules indicate Mr. Aman called in sick on May 13, did not call in on May 14, and called in sick on May 17 with the annotation that he was calling in sick "all week." D. Ex. 16. The daily schedules provide no other information after May 17, 2008. Mr. Aman remained on the schedule and failed to show for work from May 21 through May 23, 2008. Ex. 13 at 7:5-20. According to King Soopers, Mr. Aman was fired for failing to show or call in over these dates. Id.
Between May 10 and June 2, 2008 there was no communication between Mr. Aman and either Mr. Ruby or his new assistant manager John Quigley. On June 2, 2008, Mr. Aman returned to the store and Mr. Ruby notified Mr. Aman of his termination. Id. at 8:1-24.
B. Mr. Aman's Alleged Complaints of Mistreatment and Discrimination
On May 5, 2008, Mr. Aman complained to Ms. Clarke that he believed he had been discriminated against because of his injury at Store #5 and his race. Ex. 44, ¶ 17; Ex. 28 (Clarke email). Mr. Aman complained that the denial of his request for leave of absence was retaliation against him for exercising his workers' compensation rights. This complaint followed Ms. Clarke's statement earlier that day that a leave of absence was a possible course of action. Ex. 1 at 194:6-14. Mr. Aman also complained to Ms. Clarke about when he had been called a "lazy African" and an "African monkey." Ex. 1 at 148:8-10 (Aman deposition); Ex. 28 (Clarke email). Mr. Aman stated that Mr. Gordy's assault and Mr. Bateson's changing his shifts indicated a pattern of harassment due to his race. Ex. 1 at 192:5-16. Mr. Aman further alleged to Ms. Clarke that Mr. Ruby had rebuffed his repeated complaints of discrimination. Ex. 28; Ex. 1 at 192, 5:16; Ex. 19 at 6 (Charge of Discrimination). These alleged rebuffs included Mr. Ruby not sufficiently addressing the racially harassing comments made to Mr. Aman or his scheduling concerns. Ex. 28.
On May 7, 2008, under the theory of "unjust demotion, " Mr. Aman filed a union grievance action for his transfer to the service desk. Ex. 27 (Step 2 Meeting Form). After an internal investigation, the union dismissed Mr. Aman's grievance on September 25, 2008. The union premised its dismissal on Mr. Aman's failure to return to work after he was directed to do so by King Soopers. Ex. 34 (union letter dated Sep. 25, 2008); Ex. 29 (Explanation of Dropped Grievance); see also Pl. Ex. 12 (May 20, 2008 warning letter from King Soopers directing Mr. Aman to make contact with Mr. Ruby or face termination). The union later dismissed another grievance Mr. Aman initiated, this one for wrongful termination, because Mr. Aman failed to follow up with the Union per its request. Ex. 40. Unsuccessful with his union grievances, Mr. Aman filed a Charge of Discrimination with the Equal Employment Opportunity Commission, on March 13, 2009. Ex. 19.
The EEOC's Denver Field Office issued a Determination on July 11, 2011 finding "reasonable cause" that King Soopers violated Mr. Aman's rights under the ADA by denying him a reasonable accommodation, removing the accommodation he had been working under as a produce clerk, and discharging him because of his disability and in retaliation for requesting a reasonable accommodation to continue working in produce. Ex. 15 ¶ 4. The Commission made no other findings on Mr. Aman's other allegations under Title VII or Section 1981. Id. at ¶ 5. The EEOC did not analyze how it arrived at its Determination.
Mr. Aman brings thirteen claims relating to three employment actions. Specifically, he alleges:
(1) that his reassignment to the service desk was (a) race discrimination under Title VII and 42 U.S.C. § 1981 ("Section 1981") (Am. Compl. (12/20/2011), Doc. No. 8 at 14; (b) disparate treatment and failure to accommodate under the Americans with Disabilities Act ("ADA") ( id. at 16-17); and (c) retaliation under Title VII and Section 1981 ( id. at 19.);
(2) that his discharge on May 27, 2008 was (a) race discrimination under Title VII and Section 1981 ( id. at 13); (b) disparate treatment and failure to accommodate under the ADA ( id. at 15); (c) retaliation under Title VII and Section 1981 ( id. at 18); (d) retaliation under the ADA ( id. at 20); and (e) wrongful discharge in retaliation for filing a workers compensation claim ( id. at 21-22); and
(3) that he was subject to a hostile work environment because King Soopers' employees assaulted him, called him racially derogatory names, changed his schedule, reduced his hours, refused to take action when he complained about harassment, denied him a reasonable accommodation, demoted him, denied him time off for religious observance and mocked his injury. ( Id. at 20-21.)
This discussion of Mr. Aman's claims is organized below by employment action.
A. Mr. Aman Has Not Established Genuine Issues of Material Fact Concerning His Reassignment Claims
Title VII, 42 U.S.C. § 1981 and the Americans with Disabilities Act all prohibit employers from discriminating against employees and from retaliating against them for opposing any practice made unlawful by the applicable statute. Discrimination and retaliation claims under all three statutes are subject to the burden-shifting analyses of McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04 (1973). Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000) (analyzing Title VII retaliation claim under the burden-shifting framework delineated in McDonnell Douglas ); Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 990 (10th Cir. 2011) (analyzing 42 U.S.C. §1981 retaliation claim under the burden-shifting framework delineated in McDonnell Douglas); EEOC v. C.R. England, Inc., 644 F.3d 1028, 1031 (10th Cir. 2011) (analyzing ADA retaliation claim under the burden-shifting framework delineated in McDonnell Douglas ).
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case. A plaintiff's proof may come by way of direct evidence, indirect evidence, or both. See Perry v. Woodward, 199 F.3d 1126, 1134-35 (10th Cir. 1999) (distinguishing direct and indirect methods of proof). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse actions(s). Pastran at 1205; Twigg at 998; C.R. England at 1051. If the employer meets that burden the plaintiff must then establish that the employer's proffered reason(s) are merely a pretext for unlawful discrimination. Pastran at 1205; Twigg at 998; C.R. England at 1051.
Mr. Aman's third and fourth claims for relief are premised on the allegation that his reassignment was in violation of Title VII and 42 U.S.C. §1981. Mr. Aman's sixth claim for relief is based on an allegation that his reassignment violated the ADA. King Soopers submits that (1) Mr. Aman's Title VII and ADA reassignment claims are untimely; and (2) in any event, Mr. Aman has "no evidence" that King Soopers discriminated against him because of his race or disability or retaliated against him. Doc. 36 at p.23. Although I disagree with King Soopers on the issue of timeliness, but agree with it on the merits of the claims, I GRANT summary judgment in favor of King Soopers with respect to Mr. Aman's third, fourth, and sixth claims.
1. Mr. Aman's Title VII and ADA Reassignment Claims Are Timely Because Waiver Applies
An aggrieved employee must file a Charge of Discrimination under Title VII or the ADA within 300 days of the alleged violation. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). "The limitations period begins on the date the employee is notified of an adverse employment decision by the employer.'" Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 628 (10th Cir. 2012)(internal quotations omitted). The United States Supreme Court has held that the timely filing of an EEOC claim is not a jurisdictional prerequisite, but rather a requirement to suit that "is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc. 455 U.S. 385, 385 (1982). Where an employer responds to the merits of an EEOC claim and does not mention a technical defect like timeliness, the employer waives the defense of the defect. See Buck v. Hampton Township School Dist., 452 F.3d 256, 258 (3rd Cir. 2006)(finding that the verification requirement of the Charge was "analogous" to the time limit for filing charges with the EEOC and that, "[w]hen an employer files a ...