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N'Gouan v. AB Car Rental Services Inc.

United States District Court, D. Colorado

January 29, 2019




         On August 8, 2017, Plaintiff Amoikon Francois-Xavier N’Gouan, acting pro se, initiated the instant action against his former employer, Defendant AB Car Rental Services, Inc. (Doc. # 1.) Subsequently, on November 11, 2018, this Court granted Defendant’s Motion for Summary Judgment (Doc. # 45) in relation to all of Plaintiff’s claims except for his claim of discriminatory termination based on his race pursuant to Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq. (“Title VII”). Accordingly, this Court held a two-day bench trial from December 4–5, 2018.

         Plaintiff testified on his own behalf and called three other witnesses, all of whom were current or former employees of Defendant. Defendant cross-examined Plaintiff’s witnesses and called four additional witnesses. Both parties introduced, and adduced testimony about, numerous documentary exhibits. After closing arguments, the Court took the matter under advisement.

         After reviewing the evidence submitted at trial and the entire record including Plaintiff’s Trial Brief (Doc. # 69), which Plaintiff submitted after trial, the Court makes the following findings of fact and conclusions of law pursuant to the Court’s obligations under Federal Rule of Civil Procedure 52(a).

         I. FINDINGS OF FACT [1]

         Plaintiff is an African American male who is originally from the Ivory Coast in West Africa. In July, 2013, Plaintiff began working as a Rental Service Agent (“RSA”) for Defendant at its Kansas City location. Plaintiff subsequently transferred to Defendant’s Denver International Airport (“DIA”) location in August 2014. After an incident took place between Plaintiff and one of Defendant’s customers on November 6, 2016, Defendant terminated Plaintiff’s employment on November 29, 2016. In Plaintiff’s termination letter, Defendant indicated that Plaintiff’s conduct on November 6, 2016-as well as several other incidents that were not formally documented-constituted a violation of the following work rule: “Being rude, abusive or threatening to customers or co-workers.” The rule was included in a document that listed “examples of acts or behaviors so serious that they may justify immediate termination,” which Plaintiff signed when he began his employment with Defendant in 2013. (Trial Ex. 13.)


         Justin Nolan, who is Defendant’s City Manager and the individual who ultimately decided to terminate Plaintiff’s employment, described Plaintiff as a “light hearted” employee who performed his job well. (Testimony of J. Nolan.) In fact, Plaintiff was designated as one of Defendant’s “Top Performers” on several occasions in 2016. (Trial Ex. 79.) Although Plaintiff’s job performance was strong, Plaintiff had difficulty navigating interpersonal dynamics in the workplace. Mr. Nolan testified that management became aware of a feud between Plaintiff and another employee, Kirk Giles. According to Mr. Nolan, the two men disliked one another and they had a history of “going after each other” while they were at work. However, Mr. Nolan sought to reach an amicable resolution to the issue because both employees were high performers and Mr. Nolan considered a situation in which Plaintiff and Mr. Giles could “co-exist” to be the best possible outcome.

         Additionally, Mr. Nolan described an incident in which he denied Plaintiff’s request to display advertisements for Plaintiff’s business venture, which involved images of revealing clothing. Despite the fact that Mr. Nolan expressly denied Plaintiff permission to display the advertisements in the workplace, Plaintiff did so anyway. After Mr. Nolan found and disposed of the advertisements, Plaintiff lost his temper with Mr. Nolan and became “very upset.”

         Similarly, Evi Pichler, who is an Operations Manager at Defendant’s DIA location, indicated that she observed Plaintiff lose his temper at work on various occasions. However, Ms. Pichler was sympathetic to the difficulties of adjusting to a new culture because she, like Plaintiff, is an immigrant. Ms. Pichler explained that, based on their shared experiences, she had a close relationship with Plaintiff, and she gave Plaintiff preferential treatment by allowing him to leave early and work at different departments to assist his performance numbers. Ms. Pichler also testified about an incident that took place on August 29, 2016, in which she did not initiate formal disciplinary proceedings despite the fact that Plaintiff lost his temper and yelled at her. Instead, Ms. Pichler attempted to counsel Plaintiff by “explain[ing] to him he really has to start toning [his temper] down and just really has to approach customers and fellow employees differently.”


         The termination letter that Defendant issued to Plaintiff on November 29, 2016, indicates the following:

November 6, 2016 for the third time you was [sic] involved in an incident that was very egregious, involving a customer and management. The customer had questions about the rental agreement and wanted an explanation regarding the difference in pricing. You refused to assist the customer and implied to the customer that he was stupid because he signed the contract. You told the customer to ‘get the fuck out’. When management attempted to counsel you regarding the conflict you was [sic] rude and inappropriate by yelling at the manager in the presence of other employees. This is not your first verbal altercation with management and/or a customer that resulted in a needed [sic] for management to address your inappropriate and unprofessional behavior.

(Trial Ex. 57.) Mr. Nolan testified that Defendant’s termination-and the corresponding letter notifying Plaintiff of Defendant’s decision-was initiated by Mr. Nolan after he received reports from employees who had witnessed the November 6 incident and managers who interviewed Plaintiff on November 7, 2016. Mr. Nolan indicated that he considered Plaintiff’s use of profanity with a customer to be especially egregious, and he was also concerned about Plaintiff’s inappropriate demeanor while Plaintiff was communicating with a manager, Evi Pichler, immediately after the incident. Therefore, Mr. Nolan sent documentation of the event, including witness statements, to Defendant’s Human Resources Department (“HR”) along with his recommendation that Plaintiff’s employment should be terminated. The HR department subsequently investigated the November 6 incident and eventually issued the November 29 termination letter, which Mr. Nolan signed. Mr. Nolan testified that Plaintiff’s race and national origin did not factor into his decision to terminate Plaintiff’s employment.

         In his testimony, Plaintiff did not deny that he was involved in a dispute with a customer on November 6, 2016. Additionally, Plaintiff did not dispute that he had a disagreement with Ms. Pichler immediately afterwards. However, Plaintiff denied that the events took place as they were described in his termination letter. Plaintiff expressly denied that he used profanity while he was talking with the customer. Rather, Plaintiff claimed that it was actually the customer who used profanity.

         Additionally, Plaintiff denied that he yelled at Ms. Pichler. Instead, Plaintiff indicated that he speaks loudly as a matter of course. Plaintiff also stated that he was not treated fairly in the November 7, 2016 meeting with management regarding the events of the prior day. Finally, Plaintiff testified that, even if he had engaged in the conduct of which he was accused, he should not have been terminated because a white employee had engaged in similar conduct without being terminated.

         Defendant submitted evidence that either explicitly or implicitly contradicted Plaintiff’s testimony regarding (1) the dispute between Plaintiff and the customer; (2) the subsequent incident between Plaintiff and Ms. Pichler; (3) Plaintiff’s November 7, 2016 meeting with management; and (4) former employees who engaged in similar conduct.

         1. Dispute Between Plaintiff and a Customer on November 6, 2016

         Plaintiff testified that the customer he was helping was upset about the amount of his bill. Specifically, the customer took issue with Defendant’s billing policies which resulted in a charge that was higher than what he had anticipated. Plaintiff tried to explain that he was just following company policy. However, the customer lost his temper and insulted Plaintiff. At that point, Plaintiff told the customer that the customer needed to leave. Additionally, Plaintiff testified that he never used profanity during his interaction with the customer.

         However, Binyam Hailu, who is another African American RSA employed by Defendant and was working less than five feet away from Plaintiff, testified that, as Plaintiff was speaking with the customer about his bill, Plaintiff was responding to the customer’s questions in a rude manner, which “started to agitate the customer . . . .” According to Mr. Hailu, the matter escalated until Plaintiff and the customer cursed at one another and the customer left. Mr. Hailu specifically testified that Plaintiff yelled at and told the customer, “you are the dumbass who signed the contract” and to “get the fuck out.” Immediately after the incident ended, Mr. Hailu asked Plaintiff why he used profanity with the customer, and Plaintiff responded by saying, “he cursed at me so I cursed at him.” Mr. Hailu submitted a statement to Defendant summarizing his observations several days later. Mr. Hailu was unequivocal in his assessment that Plaintiff was being rude to the customer involved. On cross examination, Mr. Hailu stated, “I was so surprised that you [Plaintiff] were talking to the customer like that . . . it is common that customers get upset and it is usually our job to deescalate the situation so I was surprised that you were talking to him like that.” Mr. Hailu testified that he clearly remembered the details of the incident because Plaintiff’s manner of speaking and choice of words were so striking.

         The Court finds that Mr. Hailu’s testimony and recollection of the events were more credible than Plaintiff’s testimony.

         2. Disagreement Between Plaintiff and Ms. Pichler ...

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