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N'Gouan v. AB Car Rental Services, Inc.

United States District Court, D. Colorado

November 26, 2018




         This matter is before the Court on Defendant AB Car Rental Services, Inc.'s Motion for Summary Judgment. (Doc. # 45). The Court has reviewed the Motion, Plaintiff's Response (Doc. # 50), Defendant's Reply (Doc. # 52), and Plaintiff's “2nd Response, ” which the Court treats as a Sur-Reply[1] (Doc. # 54). The Court also notes that Magistrate Judge Neureiter held a hearing on November 1, 2018, during which the court heard arguments by the parties on Defendant's Motion. After considering the parties' arguments, the entire case file, and the applicable law, Defendant's Motion for Summary Judgment (Doc. # 45) is granted in part and denied in part for the reasons set forth below.


         This is an employment discrimination case brought by pro se Plaintiff Amoikon François-Xavier N'Gouan (“Mr. N'Gouan” or “Plaintiff”)[2] against his former employer, Defendant AB Car Rental Services Inc. (“Defendant”), pursuant to Title VII and the Americans with Disabilities Act. Mr. N'Gouan alleges that Defendant failed to accommodate his disability, and also failed to promote and then fired him based on his race, national origin, and/or disability. Mr. N'Gouan also asserts that his termination was in retaliation for complaints he filed with management about his requested disability accommodations and his unsatisfactory work environment, which included being teased by co-workers for exercising his rights under the Family Medical Leave Act (“FMLA”).

         Defendant has moved for summary judgment on all of Mr. N'Gouan's claims. Defendant argues it reasonably accommodated each of Mr. N'Gouan's requests concerning his disability (Doc. # 45 at 9-10); that Mr. N'Gouan has no direct evidence that his termination was discriminatory, i.e. that it was based on either his race, national origin, or disability (id. at 11-13); and that it had a legitimate reason for terminating Mr. N'Gouan (id. at 13). Additionally, Defendant argues Mr. N'Gouan cannot show that its legitimate reason for terminating Mr. N'Gouan is a pretext for discrimination.


         Mr. N'Gouan began working for Defendant on July 15, 2013, as a Rental Service Agent (“RSA”) at its Kansas City Airport location. (Doc. # 45-1 at 3-4; Doc. # 50-1 at 131.) When Mr. N'Gouan began working for Defendant, he agreed to comply with Defendant's Work Rules, which set forth examples of unacceptable behaviors, including, “[b]eing rude, abusive or threatening to customers or co-workers.” (Doc. # 45-1 at 50-51.) On August 11, 2014, Mr. N'Gouan transferred to Defendant's Denver International Airport (“DIA”) location. (Id. at 6; Doc. # 50-1 at 131.)

         A. Plaintiff's Disability and Requested Accommodations

         In the fall of 2013, Mr. N'Gouan was diagnosed with end stage renal failure, and he began having dialysis treatments three times a week. (Doc. # 45-1 at 5.) Mr. N'Gouan does not dispute that Defendant made the following accommodations as a result of his diagnosis and treatment plan:

1. providing intermittent leave under the FMLA, which allowed Mr. N'Gouan to take off up to three days per week for dialysis treatment (id. at 52-53);
2. providing a chair based on an October 30, 2014 Accommodation Request Form (“ARF”) signed by Mr. N'Gouan's health care provider, which stated that Mr. N'Gouan could not stand for prolonged periods of time and needed to sit in a chair while working[3] (id. at 10-11, 53-6);
3. allowing Mr. N'Gouan to leave work by 11:00 p.m. whenever he asked to do so based on a March 19, 2015 letter signed by his health care provider, which stated that “[i]n order to accommodate [Mr. N'Gouan's] medical needs, a work schedule between the hours of 11:00 am and 11:00 pm is recommended” (id. at 57); and
4. honoring an April 6, 2015 ARF[4] signed by Mr. N'Gouan's health care provider-which supplemented the March 19 letter-and specifically stated that Mr. N'Gouan's “dialysis treatment may interfere with [his] ability to work any shift or any day, ” and therefore he “cannot work late after 11:00 pm the day before and on the day of dialysis, ” and he “needs an off day on Tue[sday] or Thurs[day] or Sat[urday], ” as well as a “shift between 11:00 am and 11:00 pm.” (id. at 57, 60-62).

         Rather, Mr. N'Gouan's ADA discrimination claim is based entirely on Defendant's failure to allow him to work a day shift. Defendant's DIA location uses a shift bidding system in which employees periodically bid for different shift assignments based on their seniority. (Id. at 114.) Mr. N'Gouan's first bid while employed at Defendant's DIA location was for the 5:00 p.m. to 1:00 a.m. shift, and Mr. N'Gouan was assigned to the shift on which he placed his bid. (Id. at 16, 114.) While Mr. N'Gouan was working the night shift, he had dialysis treatments from 5:00 a.m. to 9:00 a.m. on Tuesday, Thursday, and Saturday. (Id. at 7-9, 57, 60.)

         Beginning in November 2014, Mr. N'Gouan decided that he would prefer to have his dialysis treatments at night after work. (Id. at 73; Doc. # 50 at 1.) Therefore, Mr. N'Gouan asked Defendant to allow him to work during the day, rather than at night. However, he never submitted a doctor's letter or ARF signed by his health care provider specifically indicating that, for health reasons, Mr. N'Gouan had to work a day shift. Further complicating matters was that, at the time he made this request, there were no night time dialysis appointments available either at the clinic where Mr. N'Gouan received his treatments or at other clinics where he inquired. (Doc. # 50 at 1.) Although Defendant ultimately denied Mr. N'Gouan's request to move to a day shift, it advised Mr. N'Gouan in an email dated March 27, 2015, that there would be another shift bid at the end of May 2015, for shifts beginning June 2015, at which time he would have more seniority and a better chance of getting his desired shift. (Doc. # 45-1 at 58-59.)

         On September 12, 2016, Mr. N'Gouan sent a statement to his manager complaining about a number of issues. Among his complaints were not getting an accommodation for his medical condition, being “blamed” by co-workers for taking FMLA leave, working overtime, and having to deal with a customer who put his hand on Plaintiff. (Doc. # 50-1 at 9.) In the statement, Mr. N'Gouan indicated: “[i]f I can't get a resolution for this coming bid shift, I will find any legal options I have under the medical disabilities act to get justice.” (Id.)

         B. Mr. N'Gouan's Issues with Co-Workers, Allegations of Discrimination

         On January 16, 2015, Mr. N'Gouan's co-worker, Kirk Gilles, submitted a written complaint stating he was uncomfortable working with Mr. N'Gouan because, among other things, Mr. N'Gouan had put his hands on Mr. Gilles on two occasions. (Doc. # 45-1 at 70.) Despite Mr. Gilles' request to Mr. N'Gouan that he not touch him again, Mr. N'Gouan subsequently touched Mr. Gilles three more times. (Id.) In response, Mr. N'Gouan submitted a statement that indicated he had never picked on Mr. Gilles, but would stay away from him. (Id. at 71-72.) On February 15, 2015, Mr. N'Gouan submitted a written complaint stating that when he had called the preferred office to ask for a premium car, Mr. Gilles hung up on him, and that this was not the first time Mr. Gilles had acted in a hostile manner towards him. (Id. at 76-77.)

         On May 18, 2015, Mr. N'Gouan sent an email to two of Defendant's managers complaining about his work environment, and, more specifically, about several incidents involving Mr. Gilles allegedly getting mad and yelling at him, including calling him a “pain in the ass.” (Id. at 79.) According to Mr. N'Gouan, Mr. Gilles and other co-workers also jokingly called him “Mister FMLA, ” saying nothing was wrong with him, accusing him of lying about his condition and playing the system, and asking why he took FMLA leave and parked in the handicap spot. (Doc. # 50 at 6, 10; Doc. # 1 at 4; Doc. # 45-1 at 37-38.)

         Additionally, in his Complaint, Mr. N'Gouan alleges that when he would ask to go home early or called in sick, one of Defendant's managers, Evi Pichler, would say things like “Again?”, “you don't look sick, ” “I thought you African people were hard worker [sic].” (Doc. # 1 at 4.) Ms. Pichler allegedly called him “Mister FMLA” a few times. (Id.) Mr. N'Gouan also alleges in his Complaint that in October 2016, Mr. Gilles asked him if he would go back to Africa “[w]hen Trump become[s] president.” (Doc. # 1 at 9.)

         C. Customer Incidents Involving Mr. N'Gouan

         On or about June 30, 2015, an unidentified customer filled out a customer survey stating that Mr. N'Gouan “was rude; hard to understand; and did not answer questions in a helpful or accurate manner.” (Doc. # 45-1 at 80-81.) There is nothing in the record indicating Mr. N'Gouan was disciplined, spoken to, or received a written warning as a result of this customer survey.

         According to Defendant, on August 29, 2016, when Mr. N'Gouan was asked by his manager to go from the Preferred Service Desk to the counters to help with the line, he yelled at the manager. He was told his behavior was not acceptable. (Doc. # 50-1 at 121.) Defendant also alleges that in August of 2016, Mr. N'Gouan yelled at a Preferred Service customer. When spoken to about the incident, Mr. N'Gouan's response was that “the customer was stupid and needs to pay his bill.” (Id. at 121.) Defendant acknowledges that Mr. N'Gouan “received no formal discipline” for these two incidents but asserts Mr. N'Gouan was “counseled by management at the time.” (Id. at 134.) However, there is no written record of any such counseling and Mr. N'Gouan asserts that there is nothing in the record indicating he was disciplined, spoken to, or received a written warning concerning either of the alleged August 2016 incidents. (Doc. # 50 at 16.) During his deposition, Defendant's District Manager, Justin Nolan, testified that he does not remember who in management counseled Mr. N'Gouan in relation to the two incidents that occurred in August 2016. (Doc. # 50-1 at 208.) Mr. Nolan also could not remember the name of the customer involved in the August 2016 incident, and he does not know which manager heard Mr. N'Gouan say the customer had been stupid. (Id. at 209.)

         It is undisputed that Plaintiff never had any form of documented suspension regarding his behavior, nor any documented incident with a manager, nor any documented incident with a customer. (Doc. # 50-1 at 192; Doc. # 50 at 16).

         D. The November 6, 2016 Customer Incident and Mr. N'Gouan's Termination

         On November 6, 2016, Mr. N'Gouan was involved in a dispute with one of Defendant's national account customers. (Doc. # 1 at 11; Doc. # 45-1 at 27; Doc. # 50 at 11; Doc # 50-1 at 132.) Two of Mr. N'Gouan's co-employees witnessed the incident and provided statements to Defendant regarding their perception of what happened. The statements were provided to Mr. N'Gouan the next day. (Doc. # 50 at 12.)

         One of the employees, Binyam Hailu, “stated that he heard Plaintiff tell the customer that he was the ‘dumbass that signed the contract' and to ‘get the fuck out.'” When Mr. Hailu “asked Plaintiff why he cursed at the customer, [] Plaintiff responded that ‘He cursed at me so I cursed at him.'” (Doc. # 45 ¶ 22; Doc. # 45-1 at 45, 88-89.) The other employee, Sergio Reyes, stated he “heard the customer yelling and Plaintiff ...

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