United States District Court, D. Colorado
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
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.)
A.
PLAINTIFF’S EMPLOYMENT HISTORY WITH DEFENDANT
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.”
B.
NOVEMBER 6, 2016 INCIDENT AND EVENTS LEADING TO
TERMINATION
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 ...