United States District Court, D. Colorado
ORDER ON MOTION FOR SUMMARY JUDGMENT
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Before the Court is the Defendant’s Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 and D.C. Colo. LCivR 56.1 [filed February 4, 2016; docket #92]. This matter is fully briefed; the parties have not requested oral argument, and the Court finds it would not materially assist the Court in adjudicating the motion. For the following reasons, the motion is granted in part and denied in part.
Plaintiff Frederic Charles Deneffe (“Deneffe”) initiated this employment discrimination action against SkyWest, Inc. (“SkyWest”) on February 7, 2014.
I. Procedural History
Following this Court’s January 16, 2015 order granting in part and denying in part SkyWest’s Motion for Judgment on the Pleadings and Deneffe’s Motion for Leave to File a Second Amended Complaint, Deneffe filed the operative Second Amended Complaint on January 20, 2015 alleging essentially that SkyWest violated Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”) by “submitting false and derogatory information to potential employers describing the reasons that SkyWest terminated Deneffe’s employment” based upon Deneffe’s gender and age. See Second Amended Complaint, ¶¶ 1, 158, 159, 169, and 170, docket #48.
SkyWest filed a motion to dismiss in response to the operative pleading on March 3, 2015, and briefing was concluded on April 20, 2015. The Court denied the motion on May 11, 2015 finding that Deneffe stated plausible Title VII and ADEA claims alleging SkyWest discriminated against him based on age and sex when it submitted a negative and, allegedly, untrue employment reference/report pursuant to the Pilot Records Improvement Act. Order, docket #65. SkyWest filed its answer to the operative pleading on July 13, 2015 and an Amended Answer on August 7, 2015. Dockets ##72, 82.
The action proceeded through discovery, and SkyWest timely filed the present motion on February 4, 2016 arguing that the undisputed facts do not support Deneffe’s gender stereotype claim or show any causal link between his alleged failure to conform to male stereotypes and SkyWest’s reasons for his termination; also, SkyWest contends no facts exist showing Deneffe’s age was a “but for” reason for his termination.
Deneffe counters generally that the evidence shows SkyWest’s stated reason for terminating his employment is false and that, as a result of SkyWest’s dissemination of the false reason, he has been unable to secure subsequent employment as a pilot. SkyWest replies that Deneffe’s subjective opinion concerning his job performance does not establish pretext; inconsistencies in his training record do not support an inference of pretext; there are no shifting reasons for his termination; it was not mandated that SkyWest officials follow the progressive discipline policy for Deneffe’s termination; there is no evidence any ageist comments related to the termination decision; Captain Powers’ evaluation was not the sole basis for the termination; Deneffe submits no facts establishing a pattern and practice ADEA claim; and SkyWest did not foster an environment of discrimination for gender stereotyping.
II. Findings of Fact
The Court makes the following findings of fact viewed in the light most favorable to the Plaintiff, who is the non-moving party in this matter.
1. Pursuant to the Pilot Records Improvement Act (“PRIA”), upon request from either the individual pilot or a potential air carrier employer, SkyWest is required to disclose the pilot’s employment records, including records pertaining to discipline and termination.
2. On March 5, 2013, Deneffe executed a consent form for the release of PRIA records for a job application with Global Exec Aviation.
3. Deneffe believes that the reasons for his termination - “213, performance, ineligible for [re]hire” - contained in the PRIA records are false.
4. At the time of his termination on June 7, 2012, Deneffe was 49 years old and was a probationary pilot at SkyWest because he had not completed a year of employment.
5. As a probationary pilot, Deneffe was not entitled to submit an internal appeal of his termination.
6. Probationary pilots are at-will employees. After probationary pilots are hired by SkyWest, they undergo an initial training period consisting of ground school, flight simulator training and initial operating experience (“IOE”).
7. As the Manager of Flight Standards for SkyWest, Captain Robin Wall is in charge of pilot training for the airline.
8. IOE training consists of flying a SkyWest commuter jet under the supervision of a line check airman (an experienced captain). During IOE, a probationary pilot receives training from the line check airman. These flights are performed under normal operating conditions, flying regular routes with passengers. IOE training typically lasts between 35 to 40 flight hours.
9. IOE requires that a line check airman debrief a pilot after every flight. Deposition of Robin L. Wall, December 4, 2015 (“Wall depo”), 16: 22-25, docket #92-4.
10. After completing IOE, probationary pilots must pass a line check, administered by a line check airman, before they are released to fly the line (regularly scheduled flights). A line check is an observation of crew or crew members in the performance of their duties as line pilots.
11. If a probationary pilot is performing poorly, the chief pilot will review the probationary pilot’s flight evaluations and depending upon the issue, may arrange for the probationary pilot to receive other operating experience (“OOE”). The Flight Standards Department will determine whether the probationary pilot will receive any additional training.
12. Deneffe was hired by SkyWest in July 2011. He also started ground school training at that time.
13. Deneffe completed ground school in August 2011.
14. On October 11, 2011, Deneffe had IOE training with Captain Alan Neben. Captain Neben noted, “Charles does a good job on the radio if given only one item (heading or frequency). But if the controller gives several things or asks question out of the normal flow, Charles has trouble keeping up with that. Overall, Charles is progressing well. He has the flying skills necessary to fly a jet. Experience will get him up to speed on the rest of the duties needed to be a good first officer at SkyWest.” OE Form, docket #92-7.
15. Neben emailed Wall the following day saying, “Charles is progressing very well” and complimenting Deneffe on hand flying, pitch, power, FMS, and “the key pad.” Docket #96-22. He also noted that Deneffe’s “weakness is radio calls, setting the V speeds and getting everything set up in the busy push back stage, ” but concluded “he is improving quickly and I don’t see any reason he won’t be able to successfully complete IOE.” Id.
16. On October 15, 2011, Deneffe had IOE training with Captain Jack Kelly. Captain Kelly noted, “Charles is making slow progress and is struggling with the pace and workload during busy environments. Overall, his flying is good but his interface with the FMS/Autopilot hinders his flying ability. His descent planning and approach setup/execution need more consistency.” Id.
17. Deneffe passed a line check in October 2011 after finishing his IOE training.
18. Once a probationary pilot passes his/her line check, the probationary pilot is expected to solicit 12 flight evaluations from captains with whom they have flown during the first year of their employment.
19. Probationary pilots do not receive copies of their flight evaluations, but they can review them during their six-month and twelve-month evaluations.
20. On January 30, 2012, Chief Pilot Graser (“Graser”) met with Plaintiff to discuss his mid-year evaluation and “the Captain eval[uation]s [he] received.” January 30, 2012 Email, docket #92-9. Deneffe thanked Graser for his time, expertise and comments, and stated “I already contacted several Captains I flew with to obtain additional reviews.” Id.
21. Captains Darren Miller, Gina Martyn, and Douglas Ringering submitted Probationary Pilot evaluations for Plaintiff’s mid-year evaluation.
22. SkyWest’s Probationary Evaluations for pilots rate probationary pilots in two broad categories, Job Performance and Company Orientation. These categories are evaluated by a captain or check airman on a scale of 1-5, with 1 being “excellent” and 5 being “poor.”
23. On November 15, 2011, Captain Miller rated Deneffe a “4" in three areas (2 in job performance), a “3" in three areas (all in job performance), and a “2" in the remaining six areas (1 in job performance). Captain Miller noted, “For the most part, I found that Charles[‘] awareness and radio proficiency suffers because English is not his primary language. Particularly on our COS-DEN leg, which can be quite hectic, things were moving a little quick for him, particularly once on the ground. However, I would like to emphatically state that I do believe if given a reasonable chance, he will develop into a great crewmember and an asset to SkyWest airlines. The only caveat being that he will require some patience an the part of the Captains that he flies with until he gets some experience. My concern is that if he is paired up with an impatient, overly demanding Captain, sparks could fly and it might be a setback for Charles.” Probation Evaluation, docket #92-10.
24. On January 2, 2012, Captain Martyn rated Deneffe a “4" in two areas (2 in job performance), a “3" in seven areas (3 in job performance), and a “2" in the remaining three areas (1 in job performance). Captain Martyn noted, “Charles has a great attitude and tries hard. Areas to work on: Situational awareness could use improvement. Didn’t realize that his rate of descent would have him 10, 000'agl twenty miles past the airport in Tucson, and had to do a 360 to lose altitude. Also cleared for visual 16L in Denver, and lined up for 17R. When questioned on it, to make sure he was lining up correctly, he affirmed that he was headed to 16L. As we got more lined up, it was evident that he was looking at 17R, and he only realized it after I pointed out that 16L was to the right of the terminal area. I believe some of this stems from communications/understanding difficulties. I wouldn’t want to fly in my nonexistent second language, and have sympathy, but I recommend that he really pay EXTRA attention to clearances, radio communications, and ATIS reports, and making sure he truly UNDERSTANDS what they mean.” Probation Evaluation, docket #92-11.
25. On January 5, 2012, Captain Ringering rated Deneffe a “5" in two areas (1 in job performance), a “3" in two areas (all in job performance), a “2" in two areas (all in job performance) and a “1" in the remaining six areas (1 in job performance). Captain Ringering noted, “Charles was great to fly with and is extremely motivated. There is a language barrier and he was having a difficult time talking to ATC, mostly ground control. KIAH was one of them, and the controller had a thick southern accent which exacerbated the communication gap. I gave Charles some recommendations and he was very receptive. With proper support I feel he will overcome the communication struggle. His motivation and people skills are in line with the Skywest culture.” Probation Evaluation, docket #92-12.
26. At the mid-year evaluation, during Graser’s discussion with Deneffe about his performance, Deneffe told Graser that he believed his performance was improving. Graser told Deneffe that “he did not take Ms. Martyn very seriously because she was a new captain or something of the same, saying that he didn’t take her evaluation seriously.” Deposition of Frederic Charles Deneffe, December 10, 2015 (“Deneffe depo”), 73: 13-17.
27. Also at the mid-year evaluation, Graser told Deneffe that Deneffe was “older than the regular first officer” and was “the same age as a lot of the Captains, ” but he did not say that was a “bad thing.” Deneffe depo, 88: 4-25, 89: 1-14. The meeting took place in Graser’s office with the door open and lasted no longer than 10 minutes. Id., 86: 20-25. Deneffe felt “relaxed” and characterized the meeting as “debonair.” Id., 86: 2-17.
28. Deneffe did not tell Graser that he was gay, and Graser never asked Deneffe about his sexual orientation.
29. After the evaluation, Deneffe received six additional evaluations from captains for the period January 30 - February 20, 2012. See docket #96-15. None of these evaluations contained a “4" or “5" rating in any area. Id.
30. A male SkyWest captain used the term “faggot” in Deneffe’s presence, but Deneffe does not recall who made this comment, nor were there any witnesses to this comment, nor did he object to this comment being made, nor did he make a complaint about this alleged comment. Deneffe depo, 136: 25, 137: 1-18; 138: 2-25, 139: 1-11.
31. Deneffe said that he did not make a complaint because he was scared and did not want to lose his job. Deneffe claimed that he did not know SkyWest had an anti-retaliation policy, but he admitted to signing the acknowledgment for SkyWest’s Employee ...