United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
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 (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
PLAINTIFF'S CLAIMS & DEFENDANT'S SUMMARY JUDGMENT
an employment discrimination case brought by pro se Plaintiff
Amoikon François-Xavier N'Gouan (“Mr.
N'Gouan” or “Plaintiff”) 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
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
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.)
Plaintiff's Disability and Requested
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 (id. at
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 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).
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.)
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.)
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.)
Mr. N'Gouan's Issues with Co-Workers, Allegations
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
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.)
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
Customer Incidents Involving Mr. N'Gouan
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.
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.)
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).
The November 6, 2016 Customer Incident and Mr.
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.)
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