United States District Court, D. Colorado
ANTHONY E. DEGOURVILLE, Plaintiff,
ANDREWS INTERNATIONAL, TOM DAHL, ROBERT WIBBEN, TOM PARRISH, and MARLA GIBSON, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CRAIG B. SHAFFER, Magistrate Judge.
This civil action comes before the court on Defendant Andrews International's Motion for Summary Judgment. Pursuant to the Order of Reference dated February 12, 2013 (Doc. # 22) and the memorandum dated January 28, 2014 (Doc. # 65), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, Mr. DeGourville's "Motion the Court for Pre-Trial") (treated as his Response) ( See Docs. # 67, # 69), the Reply (Doc. # 70), the exhibits, the entire case file, the hearings held on May 28, 2013 and April 16, 2014, and the applicable law and is sufficiently advised in the premises.
I. Standard of Review
Defendant Andrews International ("Andrews") seeks summary judgment on the Amended Complaint under Fed.R.Civ.P. 56(c). "Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the... moving party is entitled to judgment as a matter of law." Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F.Supp.2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant need only point to an absence of evidence to support the non-movant's claim. Celotex, 477 U.S. at 325. If the moving party meets this burden, the non-moving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Immaterial factual disputes and evidence that is not significantly probative will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D. Colo. 1998).
Because Mr. DeGourville is proceeding pro se, the court construes his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant, including... summary judgment proceedings." Hall, 935 F.2d at 1110 n. 3 (citations omitted). However, "the generous construction" that is afforded pro se pleadings has limits, and the court "must avoid becoming the plaintiff's advocate." Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012) (citation omitted).
II. Statement of the Case
Mr. DeGourville was born in Port of Spain, Trinidad in 1950. ( See Deposition of Anthony DeGourville, Exhibit 2 to Motion (Doc. # 64-6 at 3-4 of 59)). On or about March 10, 2011, Mr. DeGourville began his employment with Andrews as a part-time patrol officer at the Oracle facility located in Broomfield, Colorado. ( See id. at 5, 9, 27-28 of 59). Andrews is an international company, specializing in providing uniformed security services, consulting and investigation services, executive protection, meeting and event security, specialized training, and disaster and emergency response to business clients. ( See Declaration of Robert Wibben, Exhibit 1 to Motion (Doc. # 64-1) at ¶ 2). Mr. DeGourville worked the graveyard shift at the Oracle facility, which typically began between 10:30 p.m. and 11:00 p.m. and ended at approximately 7:00 a.m. ( See Doc. # 64-6 at 13-14 of 59). As a patrol officer at the Oracle facility, Mr. DeGourville's job responsibilities included: ensuring the environment was safe for Oracle's employees by patrolling the facility on foot, checking critical buttons with an electronic stick in sensitive areas to indicate that he had visited the area, noting particular locations he had visited on daily logs, and communicating via radio with dispatch to respond to situations, escort janitors through sensitive areas, or check certain areas in the facility. ( See Doc. # 64-6 at 8, 10-15, Doc. # 64-7 at 10-11 of 62).
Mr. DeGourville commenced this civil action on or about July 10, 2012 in his pro se capacity. He claims that Andrews discriminated against him based on his race, color, and national origin, created a hostile work environment on the basis of his protected categories, and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and violated the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). ( See Amended Complaint (Docs. # 8 and # 6)).
A. Plaintiff's Title VII Discrimination Claims Based on Race, Color, and National Origin
Mr. DeGourville alleges that he was discriminated against based on his race, color, and national origin. More specifically, he alleges that: (a) two white males were "promoted" into dispatch ahead of him; (b) other employees received more hours; (c) he was not given the opportunity to work full-time; (d) he was denied training opportunities; and (e) he was laid off in June 2011. ( See Doc. # 64-7 at 46-52, 55 of 62; Doc. # 64-14 at Nos. 4-5, 7-9).
Under Title VII of the Civil Rights Act of 1964, as amended, it is unlawful for an employer"... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As Mr. DeGourville does not present any direct evidence of discrimination, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to his claims of race, color, and national origin discrimination. See Adamson v. Multi Community Diversified Services, Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) ("Where a plaintiff relies on circumstantial evidence, the Supreme Court has established a three-step burden-shifting framework for determining whether a plaintiff's evidence raises an inference of invidious discriminatory intent sufficient to survive summary judgment"). Under the McDonnell Douglas analysis, "the plaintiff bears the initial burden of presenting a prima facie case of discrimination." Jackson v. City and County of Denver, 628 F.Supp.2d 1275, 1284 (D. Colo. 2008). "If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason" for its employment decision. Id. at 1284-85 (internal quotation marks omitted). If the defendant employer "presents such a reason, the plaintiff bears the ultimate burden of showing that these proffered reasons are a pretext for unlawful discrimination." Id. at 1285.
1. Denial of Promotion
Mr. DeGourville alleges that Andrews failed to promote him to the position of dispatch officer because of his race, color, and national origin. ( See Doc # 64-7 at 48 of 62; Doc. # 64-14 at No. 4).
Under the familiar three-step allocation of burdens of proof mandated by McDonnell Douglas, a plaintiff alleging a failure-to-promote claim must initially establish a prima facie case, demonstrating that: (1) she was a member of a protected class; (2) she applied for and was qualified for the position; (3) despite being qualified she was rejected; and (4) after she was rejected, the position was filled. If the plaintiff carries her burden of establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment action. This shifts the burden back to the plaintiff to proffer evidence that the employer's reason is pretextual.
Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003) (citations omitted). See also Garcia v. Pueblo Country Club, 299 F.3d 1233, 1238 (10th Cir. 2002) (same). It is undisputed that Mr. DeGourville belongs to a protected class.
Mr. DeGourville claims that Mr. Wibben promoted two younger, white officers with less experience, Officers Van Maldegham and Anguelov, to dispatch over him. ( See Doc. # 64-7 at 16-17, 43 of 62; Doc. # 64-14 at No. 15). He alleges that in early June 2011, he told Mr. Wibben that he was interested in working in the dispatch area. ( See Doc. # 64-1 at ¶ 17). Mr. Wibben explained to Mr. DeGourville that working in the dispatch area was not considered a promotion because it is a different position than the patrol officer position. ( See id. ). Mr. DeGourville acknowledges that working in the dispatch area required different responsibilities, training, and equipment than that of a patrol officer, including a prescreening test on a system known as Criticall, and that he was not familiar with those responsibilities or training requirements. ( See Doc. # 64-6 at 16-17, 20-21 of 59). Mr. DeGourville understood that he was hired as a patrol officer, not a dispatch officer. ( See Doc. # 64-7 at 43-44 of 62). Mr. DeGourville concedes that he never submitted an application to work in the dispatch area and that he merely told Mr. Wibben that he was interested in working in the dispatch area at some point in time. ( See Doc # 64-7 at 60 of 62). Mr. DeGourville has no knowledge as to whether certain applicants were hired directly into dispatch versus moving to dispatch from a patrol officer position. ( See id. at 45 of 62). The evidence, undisputed by Mr. DeGourville, shows that Officer Van Maldegham was hired to be a dispatch officer, not a patrol officer, and thus received different training than Mr. DeGourville. ( See Doc. # 64-1 at ¶ 18). Officer Anguelov was hired as a full-time patrol officer. ( See id. ). He began some of the dispatch officer training when Mr. DeGourville was off work in June 2011, but remained a patrol officer. ( Id. ).
Mr. DeGourville does not present a prima facie case for failure to promote him to the dispatch area. He has not presented any evidence to show that the dispatch officer position was a promotion over the patrol officer position. See, e.g., DeFlon v. Danka Corp., No. 99-2239, 1 F.Appx. 807, 818 (10th Cir. 2001) (concluding that plaintiff's failure to promote claim failed where, among other things, there was no evidence establishing that the position at issue was a promotion as opposed to a lateral transfer). Mr. DeGourville never applied for or was rejected for a position in dispatch. See, e.g., Bennett v. Quark, Inc., 258 F.3d 1220, 1229 (10th Cir. 2001) (holding that plaintiff failed to establish a prima facie case of discrimination because she failed to show that she applied for the position), overruled on other grounds as explained in Boyer v. Cordant Technologies, Inc., 316 F.3d 1137, 1140 (10th Cir. 2003). The evidence shows that no position in dispatch was open or filled and no one else was promoted or transferred into dispatch during the relevant time period. ( See Doc. # 64-1 at ¶ 6 (Oracle facility was sufficiently staffed with dispatch officers during relevant time period)). Even if there had been a vacant position in the dispatch area, other than his subjective belief that he had more experience than officers already working in dispatch, Mr. DeGourville has not established that he was qualified for such a position. ( See Doc. # 64-14 at No. 4(b)). See, e.g., Simms v. Okla. ex rel. Dep't of Mental Health, 165 F.3d 1321, 1329 (10th Cir.1999) (noting that an employee's own opinions about his or her own qualifications does not create a material dispute of fact), abrogated on other grounds as recognized in Eisenhour v. Weber County, 744 F.3d 1220 (10th Cir. 2014); Coe v. Yellow Freight System, Inc., 646 F.2d 444, 449-50 (10th Cir. 1981) (holding that plaintiff failed to establish a prima facie case of discrimination because he failed to show that there was a position open or that he was qualified). In sum, because Mr. DeGourville fails to establish a prima facie case, Defendant Andrews is entitled to summary judgment on his claim for failure to promote based on his race, color, and national origin.
2. Denial of Full-Time Employment and Additional Hours
Mr. DeGourville alleges that he was discriminated against by denial of full-time employment, resulting in fewer work hours. ( See Doc. # 6 at 1 of 3 ("Also, my weekly hours were reduced...."); Doc. # 64-7 at 48, 50 of 62). To establish a prima facie case of disparate treatment, a plaintiff must demonstrate: (i) that he belongs to a protected class; (ii) that he suffered from an adverse employment action; and (iii) that his employer treated similarly situated employees differently. Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005). Adverse employment action includes "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.2007) (internal quotation marks and citation omitted). To be similarly situated, employees must "deal with the same supervisor and [be] subject to the same standards governing performance evaluation and discipline." McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006) (internal quotation marks and citation omitted).
Mr. DeGourville does not dispute that he was hired as a part-time employee and remained a part-time patrol officer during the tenure of his employment. ( See Doc. # 64-1 at ¶¶ 4, 12; Doc. # 64-6 at 7-8 of 59; Response (Doc. # 67) at 4 of 39, ¶ 17). Part-time employees are those employees who work less than 72 hours in a bi-weekly pay period. ( See Declaration of Camron Byington (Getty), Exhibit 5 to Motion (Doc. # 64-10) at ¶ 3). He does not dispute that he never submitted an application for a full-time position with Andrews or at the Oracle facility. ( See Doc. # 64-1 at ¶ 4).
Mr. DeGourville does not identify other officers or present any evidence of their work hours. ( See, e.g., Doc. # 64-7 at 48 of 62). He does not present evidence that he suffered an adverse employment action or that other officers outside his protected classes were treated more favorably than he was with respect to their full time status or work hours. Andrews is entitled to summary judgment on Mr. DeGourville's claim that he was discriminated against by the denial of full-time employment and additional work hours.
3. Denial of Training Opportunities
Mr. DeGourville alleges that he was not provided bicycle and vehicle training as quickly as Caucasian officers and that he was denied an opportunity to train in the dispatch area. ( See Doc. # 64-7 at 13-15 of 62; Doc. # 64-14 at No. 4(b)). On August 3, 2011, Mr. DeGourville sent a letter to Ms. Marla Gibson, then Vice President of Human Resources, generally complaining that, among other things, he was denied "needed training for vehicle and bicycle patrol as other officers." ( See August 3, 2011 Letter (Doc. # 64-13); Doc. # 64-7 at 1-3, 13-16 of 62). To establish a prima facie case of discrimination for failure to train, Mr. DeGourville must show that: (1) he is a member of a protected group; (2) Andrews provided training to its employees; (3) he was eligible for training; and (4) he was not provided training under circumstances giving rise to an inference of discrimination, that is, he was denied training given to other similarly-situated employees who were not members of the protected group. Chytka v. Wright Tree Serv., 925 F.Supp.2d 1147, 1164 (D. Colo. 2012) (citations omitted).
Mr. DeGourville completed some training when he commenced his employment with Andrews, including first aid, CPR, and online skills training. ( See Doc. # 64-1 at ¶ 16; Doc. # 64-6, at 19-20 of 59; Training Record, Exhibit 1-3 to Motion (Doc. # 64-4)). Vehicle training was only offered during the day. ( See Doc. # 64-1 at ¶ 15). Between May 5 and 26, 2011, Mr. DeGourville missed vehicle training opportunities because he was attending classes during the day at a local education center known as the Mi Casa Resource Center. ( See Doc. # 64-6 at 30-36 of 59; Doc. # 64-1 at ¶ 15). Between April 25, 2001 and July 15, 2011, Mr. DeGourville attended at Mi Casa four 40-hour classes, one 10-hour class, and one 80-hour class. ( See Doc. # 64-6 at 30-36 of 59; Plaintiff's Responses to Defendant's Second Set of Discovery, Interrogatory No. 16 (Doc. # 57 at 11-12 of 15)). Mr. DeGourville repeatedly told Mr. Wibben that school was his first priority and Mr. Wibben tried to accommodate his classes when making the work ...