Opinion
CIV 00-517 KBM/DJS
May 16, 2001
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants Motion For Summary Judgment and Plaintiffs Motion To Strike Defendants Affidavit In Support Of Motion For Summary Judgment. Docs. 31, 35. Pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73(b), the parties consented to have me serve as the presiding judge and enter final judgment. Having reviewed the record, arguments of the parties, and relevant authorities, I will deny the motion to strike and grant summary judgment for Defendants on all claims.
I. Background
Plaintiff Wendell Robinson (Robinson) was the sole black male among approximately six people employed as administrative assistants with the Bernalillo County Fire and Rescue Department (Department). See Plf. Depo. at 80, 99. The record is not clear when he started this position, but apparently he was employed in that capacity beginning at least in 1998.
In February 1999, Vinke issued a first notice of suspension followed by termination notices in March and April 1999. After a pre-disciplinary hearing, Plaintiff was terminated in April 1999. Robinson was unable to file a grievance because his union representative forgot to file the requisite paperwork on time. Id. at 200-203. County Manager Juan Vigil denied Plaintiffs request to file a late grievance. Robinson filed a complaint with the New Mexico Human Rights Commission and the EEOC alleging that his termination was based on race, gender, and retaliation.
After receiving a right to sue letter, he filed this action against the then-Fire Chief (Vinke), his supervisor (Brown) and the Bernalillo Board of County Commissioners (Board). Plaintiff also originally named union defendants the American Federation of State, County and Municipal Employees, Council 18, Local 2260. However they were dismissed by stipulation in June 2000. See Doc. 7.
Plaintiffs Complaint raises five claims for relief: Count I under Title VII ( 42 U.S.C. § 2000e-2, 2000e-3(a)) for gender and race discrimination and retaliation; Count II under 42 U.S.C. § 1981, Count III under 42 U.S.C. § 1985(3) and Count IV under 42 U.S.C. § 1983 for racial discrimination; and Count V under state law for breach of duty of fair representation and negligence. See Doc. 1; Doc. 33. Plaintiff acknowledges that he raises no hostile work environment claim against any Defendant, nor does he make a claim of breach of duty/fair representation claim against the Defendant County. See Doc. 33 at 10-11. Accordingly, these aspects of Defendants motion are denied as moot.
II. Standard For Summary Judgment
Summary judgment may be appropriately granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court must view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence that would justify sending the case to a jury. E.g., Williams v. Rice, 983 F.2d 177, 179 (10 th Cir. 1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-252 (1986)).
Indeed, summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting FED. R. CIV. P. 1). Most importantly in the context of the present case, [the] adverse party may not rest upon the mere allegations or denials of the [movants] pleading, but the adverse partys response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Id. at 321-23 (emphasis added). Based on the record before me, I find that Defendants are entitled to judgment as a matter of law on all claims.
III. Motion To Strike
Some of the materials submitted in support of Defendants summary judgment motion are the subject of Plaintiffs separately-filed motion to strike. Defendants first contend that the motion to strike is untimely because it was filed after the motions deadline. Such an argument strikes me as absurd, since it was the materials submitted with the summary judgment motion which prompted the motion to strike. Moreover, the arguments for striking certain evidence are before me in any event since Plaintiff also raised the issues in his response to the motion for summary judgment. See Doc. 33.
Authentication Issues
When Defendants originally filed their exhibits to the motion for summary judgment, they failed to attach an affidavit meeting the requirements of FED. R. CIV. P. 56(e) properly authenticating the documents. Plaintiff asks that Exhibits C, D and H be stricken on this basis alone. However, [a]'s is true of other material introduced on a summary-judgment motion, uncertified or otherwise inadmissible documents may be considered by the court if not challenged. 10A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 2722 (3d ed. 1998).
In response to the motion to strike, Defendants submitted with their reply brief a supplemental sworn affidavit from Elizabeth Clark, Fire Chief for the Fire Department, which purports to authenticate the challenged exhibits. To satisfy the dictates of FED. R. CIV. P. 56(e), this affidavit must be made on personal knowledge, set forth admissible facts and demonstrate that the affiant is competent to testify. Exhibit D to Defendants motion is a brochure from International Fire Code Institute regarding its voluntary certification program. One of Defendants grounds for terminating Plaintiffs employment was that he failed to properly register two fire inspectors to take the course. Among other things, the certification brochure describes the types of tests and how to register. Plaintiff contends that Defendants have not established the authenticity of the brochure since it is neither self-authenticating under FED. R. EVID. 902, nor a public record under FED. R. EVID. 901(7).
Ms. Clark submitted a supplemental affidavit that explains the Department keeps copies of the brochure and distributes them to its staff. Doc. 37, Exh. A ¶¶ 6-9. Indeed, Plaintiff testified that he requested a copy of the brochure to find out the price of the course. Plf. Depo. at 222-223. Furthermore, Plaintiff does not contest that the brochure is what it plainly purports to be the brochure concerning the certification programs the he personally referred to in the course of his employment. I find that Defendants have met their burden in demonstrating its authenticity.
Hearsay Objections
Plaintiff also moves to strike the brochure on the basis that because the Fire Department did not write it, the brochure is not admissible as a business record under FED. R. EVID. 803(6). Documents that one organization receives from another organization and uses in the course of its own business can be admissible under the business records hearsay exception, however. The key issue is trustworthiness of the information:
a person receiving a document from an unaffiliated business could not solely by virtue thereof lay a sufficient foundation for the record as a business record of the issuing business. A different situation exists when the business receiving the information in the regular course of business integrates the information received into its business records, relies upon it in its day-to-day operations, and surrounding circumstances indicate trustworthiness. Under such limited circumstances admissibility through the testimony of the receiving custodian or other qualified witness is permitted. . . .
3 HANDBOOK OF FED. EVID. § 803.6 (5th ed. 2001) (and cases cited therein).
See also e.g., Saks Int l, Inc. v. M/V Export Champion, 817 F.2d 1011 (2 nd Cir. 1987) (loading tallies of service company introduced through ships chief mate who used the service); United States v. Johnson, 971 F.2d 562 (10 th Cir. 1992) (wire transfer receipts introduced through individual investors rather than bank); United States v. Hines, 564 F.2d 925 (10 th Cir. 1977) (automobile invoice introduced through owner of vehicle rather than seller), cert. denied, 434 U.S. 1022 (1978).
Under the present circumstances, I find that the brochure admissible as a business record. Plaintiff also moves to strike paragraphs 7, 8, 12, 13, and 14 of Ms. Clarks first affidavit, Exhibit C to Defendants summary judgment motion as inadmissible hearsay.
These paragraphs provide:
7. Finch and Ashmore were required to pass the UFC exam within 150 days of coming into the Fire Prevention Bureau or they would not complete probation requirements.
8. Finch and Ashmore were unable to take the exam on 3/13/99 due to the fact that they were not properly registered by Wendell Robinson.
12. In the past, Robinson was made aware of the need for each candidate to have a separate check for the fee required to take the exam.
13. Mr Robinson failed to provide the two candidates with separate checks . . . . Even if Finch and Ashmore had been registered for the exam, they would not have been able to take the exam, due to Robinsons failure in not requesting separate checks.
14. Corey Finch and Jim Ashmore were unable to take the exam in Denver, Colorado on March 1999, although they were in Denver for the exam.
Plaintiff maintains that none of the assertions are based on personal knowledge. However, Ms. Clarks supplemental affidavit specifically states that she has personal knowledge of the statements of fact contained in those paragraphs. Doc. 37, Exh. A., ¶ 4.
In a rather novel argument, Plaintiff also contends that the challenged paragraphs are hearsay because there has been no trial or hearing, thus Ms. Clarks statements are out of court. Doc. 38 at 4. However, the Federal Rules of Evidence provide that Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. FED. R. EVID. 802 (emphasis added).
As the Advisory Committee Notes to Rule 802 observe, FED. R. CIV. P. 56 specifically provides for such a hearsay exception for facts set forth on personal knowledge in sworn affidavits in summary judgment proceedings.
Thus, Mrs. Clarks statement are not inadmissible simply because she did not make them on the witness stand. Furthermore, my review of the substance of the assertions in challenged paragraphs reveals that they do not contain inadmissible hearsay. None contain a third partys description of a witnesses supposed testimony. E.g., Adams v. American Guarantee Liability Ins. Co., 233 F.3d 1242, 1246 (10 th Cir. 2000).
Plaintiff also moves to strike any hearsay contained in the amended notice of termination submitted as Exhibit H in support of Defendants motion. However, the amended notice is relevant to the motion despite the truth of the matters asserted therein. It provides evidence of an adverse employment action and the employers stated reasons for taking that action. Therefore, Plaintiffs hearsay challenge is not well taken.
Objections to Conclusionary Statements
Plaintiffs final argument that paragraphs 8 and 13 should be stricken as conclusions lacks merit. Rather, these paragraph contain assertion of facts based on Ms. Clarks personal knowledge of the situation. Compare Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10 th Cir. 1995) ([t]he three affidavits presented to show dissimilar treatment are merely conclusory and do not provide any factual bases for the inference that others were treated differently) (emphasis added). Although the assertions are offered as support for Defendants legal argument that Plaintiffs dismissal was justified, they are not merely a conclusory, restating the requirements of the law. Doren v. Battle Creek Health Sys., 187 F.3d 595, 599 (6 th Cir. 1999). For all of the above reasons, the motion to strike will be denied.
IV. Merits of the Summary Judgment Motion Discriminatory Discharge Based On Gender and Race
I have carefully reviewed all of the materials submitted with the summary judgment pleadings and find there is no direct evidence that Plaintiff was terminated based on his gender, his race or in retaliation for engaging in protected activity. Because only circumstantial evidence has been offered, the McDonnell Douglas burden-shifting analysis applies and the inquiry is identical whether the theory of recovery is under Title VII, § 1983 or § 1981. E. g ., Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 n. 4 (10 th Cir. 2000). Therefore, Plaintiff must first show that: (1) he belongs to a protected class; (2) he was qualified for his job; (3) he was discharged despite his qualifications; and (4) his job was not eliminated after his discharge. Id. at 1229; see also Perry v. Woodward, 199 F.3d 1126, 1138 (10 th Cir. 1999).
Defendants contend that Robinson has failed to establish the second element required to raise a presumption of unlawful discrimination because they have come forward with evidence showing that Robinson failed to competently perform in the position. However, [a]t the prima facie stage of the McDonnell Douglas analysis, a plaintiff is only required to raise an inference of discrimination, not dispel the non-discriminatory reasons subsequently proffered by the defendant. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10 th Cir. 2000). As the Tenth Circuit has concluded, a plaintiff may make out a prima facie case of discrimination in a discharge case by credible evidence that she continued to possess the objective qualifications she held when she was hired, or by her own testimony that her work was satisfactory, even when disputed by her employer, or by evidence that she had held her position for a significant period of time. MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1121 (10 th Cir. 1991) (internal citations omitted). I find that Plaintiff has sufficiently demonstrated that he held the objective qualifications for the position.
Because Plaintiff has carried his burden of establishing a prima facie case, the burden shifts to Defendants to articulate a legitimate and nondiscriminatory reason for termination.
The final notice of termination characterized Plaintiffs work performance as inappropriate, unprofessional, insubordinate, and inconsistent with your obligations as a County employee. Exh. H. The various notices of suspension and termination leading up to the final notice outline numerous deficiencies in Robinsons job performance. See Exhs. G-J. Having proffered legitimate reasons for the dismissal, the burden shifts back to Plaintiff to show the proffered reasons are pretextual. Kendrick, 220 F.3d at 1126. One way to show pretext is by evidence that the stated reasons are false. Plaintiff believes his termination was unlawfully motivated because he provided explanations at the pre-termination hearing for the asserted incidents of inadequate performance. See Plf. Depo. at 111; Doc. 33 at 10-11.
Plaintiffs explanations, however, do not dispute that most of the events in fact occurred.
Specifically,
Plaintiff was advised that he did not properly coordinate some inspections and not rectifying the situation after being told. He acknowledged that Ms. Clark advised him of complaints from business owners concerning coordinating inspections. Plaintiff explained that he only took care of scheduling the original date and notifying the owners but that fire inspectors could later change the date. Thus, he completed his scheduling task. His testimony indicates that because he would never know if a date had changed, he had been doing all that was required of him even though Ms. Clark reminded him in January 1999 to make sure he was calling the owners. He saw the coordination aspect as someone elses responsibility once he scheduled the initial appointment.
See Plf. Depo. at 255-257.
Plaintiff was advised of insubordination in his refusal to perform duties he had been assigned in connection with coordinating hearings/complaints with the Metropolitan Court. Apparently, Plaintiff was told by Ms. Clark in early 1999 that he was being assigned the Metropolitan Court liaison responsibilities. He never inquired of Captain Clark what the position entailed, even after he was asked to schedule something. Instead, Plaintiff wrote a memo to Vinke on January 22, 1999 stating, At this time, my current workload . . . demands my full attention and all my energy. Therefore, in the best interest of the County . . . I am declining the new responsibility.
Id. at 262-63. In his view, declining the position was not the same as refusing to do the job. Id. at 263. Through a subsequent grievance proceeding, he learned that all the job entailed was for him to take the copies that came from Metro Court and put it on the guys schedule. Id. at 264.
Plaintiff was advised that Brown witnessed him conversing rudely to and hanging up the phone on a coworker. Plaintiff explained that he could not have hung up because he uses the speaker phone, but acknowledged that Brown could have witnessed the incident.
Id. at 268-269.
The notices advised Plaintiff that two fire inspectors had not been properly registered to take a certification examination set to take place on March 13, 1999. Plaintiff does not dispute that he did not properly register two fire inspectors. He maintains that being unaware registration procedures had changed, he registered the investigators for the test the same way he had in the past and was given the impression by the companies he dealt with that the reservations were confirmed.
See Plf. Depo at 113-118; 221-232, 241-254.
Plaintiff was advised that he did not mail a copy of a form concerning a public relations event as requested in late March. He explained that although he put the public relations form in an envelope, he did not mail it before he left for vacation or ask someone else to do it for him because the event was not to occur for several weeks. While Plaintiff was out, the requestor again called asking for the copy and someone else had to mail it to him.
Id. at 120-21.
Plaintiff was advised that although he took a call from a citizen regarding a problem with an inspection, he failed to advise Ms. Clark of the situation or follow up on the matter.
Later, the citizen eventually went to the office to rectify the situation, at which time Plaintiff located the paperwork in a closet. Plaintiff does not dispute that he took the call from the a citizen, that it was his responsibility to inform Captain Clark of such things, that he failed to locate the paperwork initially, or that he finally found the paperwork in the closet after the citizen came down to the office. Plaintiffs explanation for not locating the paperwork initially was that someone gave him the wrong name of the inspector, so he only looked for paperwork with that inspectors handwriting. Therefore, his failure to find it was someone elses fault. He did not think the closet was an inappropriate place for filing as that is where he kept his to be filed pile of unfiled documents.
Id. at 122-25.
Plaintiff was advised he did not complete all of the tasks Captain Clark requested that he do before leaving for vacation, yet he told her the tasks were completed before he left.
Robinson does not dispute that he failed to do all of the things on the list given him before his vacation or that he advised her they were complete. He says only that her note did not make his earlier-approved vacation contingent upon him completing the tasks.
Id. at 128.
Plaintiff must show that a reasonable factfinder could rationally find that the proffered reasons are unworthy of credence. Bullington v. United Air Lines, Inc. 186 F.3d 1301, 1317 (10 th Cir. 1999) (internal quotations omitted). Mere conjecture is insufficient. Id. In addition, in analyzing the pretext issue [federal courts] do not sit as super-personnel departments free to second-guess the business judgment of an employer. Id. at 1318, n. 14 (internal quotation omitted). The relevant inquiry is not whether terminating Plaintiff for these incidents was wise, fair or correct, but whether the employer honestly believed those reasons and acted in good faith on those beliefs. Id. at 1318. Furthermore, a challenge of pretext requires us to look at the facts as they appear to the person making the decision to terminate plaintiff. Kendrick, 220 F.3d at 1231.
The incidents cited as the basis for dismissal were objective and specific. Because there is no dispute as to their occurrence, Plaintiffs explanations alone are insufficient to create genuine dispute that the proffered reasons were pretext. See id.; see also Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2109 (2000) (a prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated) (emphasis added).
I find the two remaining items in the notices that appear to be disputed are immaterial. Plaintiff denies that he provided false and inconsistent information and statement when the registration problem was investigated on March 12, 1999. Id. at 118. He also denies failing to advise a captain that the PR event was scheduled, saying Ms. Clark told him she had already done so. Id. at 120.
A second route by which Plaintiff can show pretext is by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. Kendrick, 220 F.3d at 1230. Plaintiff merely asserts that other people had made more serious mistakes and were not fired. Plf. Depo at 129; see also Doc. 33 at 10. Without elaboration or supporting evidence, he claims in conclusory fashion in his deposition that fire inspectors who failed to carry out inspections were not fired. Plf. Depo. at 129. I find no basis in the record to conclude fire inspectors are similarly situated with administrative assistants.
Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline. Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10 th Cir. 1997) (internal citations and quotations omitted).
Likewise, without any supporting evidence or embellishment, Robinson claims in his deposition that a coworker lost time cards and was not fired. Misplacing paperwork is hardly comparable to failing to carry out, or reluctantly carrying out, responsibilities specifically assigned by a supervisor. See Kendrick, 220 F.3d at 1232-33. Indeed, Plaintiffs failure to properly register two fire inspectors for an exam potentially compromised their certification. See Exh. C.
Thus, I find that Plaintiff has not demonstrated that these alleged incidents are either similar or comparable. [E]vidence that the defendant acted contrary to an unwritten policy or contrary to company practice may also be used to demonstrate pretext. Kendrick, 220 F.3d at 1230.
Robinson advances his employers failure to follow the Labor Management Agreement requirement of progressive discipline as evidence of pretext. The Agreement, however, speaks only of levels of corrective action . See Exh. K at 19-20. Moreover, dismissal is expressly authorized when the employee has engaged in egregious behavior that the County determines unacceptable for its employees. Id. at 20. I cannot say that repeated instances of failing to accomplish important job duties, insubordination and hostility towards coworkers would fall outside that category of behavior.
Plaintiffs final unsupported assertions of pretext for a discriminatory motive are mere conjecture: for example, he could never appease Dianne Brown, when he tried to talk to her, she was not very interested, blew me off, unconcerned, Plf. Depo at 130, and the secretaries did not like him, Doc. 33 at 11. Throughout his deposition, Robinson complained of treatment by coworkers: the women administrative assistants had a clique that regarded him as a snob who wore designer clothes and had a decent car, but who wasnt supposed to have that, Plf. Depo. at 85; he was the only person on the support staff level with a degree from the Anderson School of Management, id. at 102, Doc. 33, Exh. D; a coworker periodically would knock a picture Plaintiff had hanging on his wall, stole his engraved pen, and gave supplies he had ordered to someone else, Plf. Depo. at 102-06, 131-32, 138. He expressed his subjective belief that coworkers treated him without the respect he felt he deserved as a Black, well-educated man. Id. at 143. Plaintiffs subjective belief is purely conjectural, however. Accordingly, Defendants are entitled to summary judgment on Plaintiffs claims of gender and race discrimination under Title VII, § 1983, and § 1981.
Because Defendants are entitled to summary judgment, it is unnecessary to address Defendants claims of qualified immunity and lack of policy/custom under § 1983 insofar as it relates to the decision to fire Plaintiff.
§ 1983 Claim For City Manager Failing To Consider Late Grievance
Plaintiff asserts that County Manager Vigil, did not allow him to file a late grievance based upon Robinsons race. Vigil is not a party to this action, and there are no allegations that either Vinke or Brown had any part in that decision. Apparently, Plaintiff seeks to hold the Board responsible for Vigils decision. Section 1983 does not permit recovery based on respondeat superior. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978). To hold the Board liable, Plaintiff must show an illegal policy or custom caused the constitutional deprivation. Id. Yet, Plaintiff points to no statutory or contractual authority granting him the right to file a late grievance. He offers no evidence whatsoever that identifies a policy or custom of the County permitting and considering untimely grievances. In his deposition Plaintiff surmised that the County has an implied contractual obligation to bargain in good faith, Plf. Depo. at 201, but as noted above, he is not bringing any claim of breach against the County. I agree with Defendants that the undisputed facts establish that actions of the Union by failing to timely preserve his right to grieve the termination caused any alleged deprivation. See Doc. 32 at 21. To the extent Plaintiff contends that Vigil qualifies as the final policymaker, he refers to the decision to terminate, not to the decision concerning subsequent grievance proceedings. See Doc. 33 at 12-13. Moreover, Plaintiff points to no direct or indirect evidence tending to show that Vigils decision to not allow a late grievance was based on race. All of the evidence Plaintiff relies upon to show pretext concerns the decision to terminate itself and for the reasons above, he fails to sustain his burden. Accordingly, Defendants are entitled to summary judgment on this aspect of Plaintiffs § 1983 claim.Section 1985(3)
The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom. Tilton v. Richardson, 6 F.3d 683, 686 (10 th Cir. 1993), cert. denied, 510 U.S. 1093 (1994). The record is utterly devoid of any factual support for Plaintiffs § 1985(3) claim. Simply referring to conclusory allegations in his complaint and affidavit is insufficient to defeat the motion. See Doc. 33 at 15 (sequence of events leading to his dismissal could allow a jury to infer from the circumstances that the individual defendants and other members of the department, . . . had a meeting of the minds). Plaintiff failed to produce any evidence of a racially-based motivation on the part of the County Defendants. [Section] 1985(3) does not apply to all tortuous, conspiratorial interferences with the rights of others, but rather, only to conspiracies motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus. Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-102 (1971)) (emphasis added).
Likewise, Plaintiffs passing mention of the former Union Defendants in his memorandum in opposition does not save this claim. He states the testimony was about a conspiracy between the County and the Union. Doc. 33 at 15, 17. Plaintiff apparently is trying to argue that because the union representative failed to file a timely grievance of his termination and because Vigil would not consider a late grievance, there was a conspiracy based on his race. However,
Plaintiffs complaint specifically exempted the Union Defendants as conspirators, a fact which notes that in bold in his memorandum in opposition. Id. at 15. Assuming he is trying to make a conspiracy claim against the County and the nonparty Union Defendants, the claim is based on nothing more than conjecture of an agreement and no evidence of racial motivation.
Finally, I am as baffled as Defendants at Plaintiffs suggestion that he does not yet have sufficient evidence of a conspiracy because the Rule 16 conference was just held. Doc. 33 at 16. In fact, the initial Rule 16 conference was held almost one year ago on June 16, 2000. This action was filed in April 2000 and discovery closed in February 2001. See Docs. 1, 14. Plaintiff has been provided ample time in which to develop evidence in support of his conspiracy claim.
Accordingly, Defendants are entitled to summary judgment on Plaintiffs § 1983(3) claim.
Retaliation Claim
Both Title VII and § 1981 support a cause of action for retaliation and require a plaintiff to establish the same prima facie elements to recover. O Neal v. Ferguson Const. Co., 237 F.3d 1248, 1258 (10 th Cir. 2001). To establish a prima facie case of retaliation, Plaintiff must show:
(1) he engaged in protected opposition to discrimination;
(2) he suffered an adverse employment action; and
(3) a causal connection between the protected activity and the adverse employment action.
See Kendrick, 220 F.3d at 1234.
As with the race and gender discrimination claims, Plaintiff has brought forth no direct evidence of an unlawful motivation. Nevertheless, [a] causal connection may be shown by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action. Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10 th Cir. 1982). Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10 th Cir. 1997). [W]e have held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. By contrast, we have held that a three-month period, standing alone, is insufficient to establish causation. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10 th Cir. 1999) (citation omitted). Because ONeal presented additional evidence from which a reasonable jury could find causation, this court need not address whether two months and three weeks, by itself, is sufficient to support a prima facie case of retaliation. O'Neal, 237 F.3d at 1253 (emphasis added); see also Clark County Sch. Dist. v. Breeden, ___ S.Ct. ___, 2001 WL 402573 (4/23/01) (citing O Neal). I find that Plaintiff has failed to come forward with sufficient circumstantial evidence of a causal connection. Plaintiff contends that until he complained about discrimination from his coworkers, there were no complaints about his work performance. It is undisputed, however, that in March 1998,
Ms. Clark told Plaintiff was spending too much time in the administrative area where the women worked, and she asked Plaintiff to only go over there for business-related reasons. Plf s. Depo. at 77. Although Plaintiff thought the accusation unfair, the incident does represent a concern regarding his job performance prior him making any complaints. Informal complaints to superiors constitute protected activity. O Neal, 237 F.3d at 1255. In an October 9, 1998 memorandum to supervisor Brown, Robinson complained I am being subject to numerous acts of harassment and disrespect. . . . because I do not exhibit the same demographics or characteristics as that of my fellow clerical counterparts. . . . [Certain female coworkers] have an interpersonal conflict with 18 Wendell Robinson (or any man) who displays or exhibits a strong male identity, educational successes, a self-confident demeanor, and high income producing ability. I will not apologize for being a well-educated, young, African American male, with high standards, values and work ethics. Def's Exh. D (emphasis in original). Viewing this document in the light most favorable to Plaintiff, the above excerpt from the memorandum could constitute a protected complaint of employment discrimination.
The memorandum indicated that copies were also being provided to Interim Fire Chief Jim Tuma, Interim Assistant Fire Chief Glenn Vinke, Fire Marshall Bett Clark, and two of Robinsons fellow clerical employees.
Robinson testified at his deposition that he also complained on two other occasions:
Q: What other documents did you prepare?
A: I think there is one in January of 99 that I can remember the date specifically.
Q: And who was that to?
A: That was given to Chief Vinke.
Q: Any other written complaints regarding harassment that you prepared?
A: Yeah. There was at least one more or so.
Q: And when was it made?
A: Without it in front of me, I couldnt tell you.
Q: Okay. Do you recall if it was during the time you were going to be terminated, or before?
A: Prior to.
Q: Okay. When you said this one was in October of 1998, the one that we have marked as Exhibit D, you said there was one in January of 1999. Do you remember if it came after, the one that you cant remember if it came after the January 1999 memo?
A: I would say it came after this one and probably before the other one.
Q: Okay. So sometime between October and January there was a third memo?
A: Right.
See id. at 138-41.
In this case, proof of the later complaints is essential to satisfy Plaintiffs obligation to make the prima facie showing. To create an inference of retaliatory motive for the termination necessarily requires Plaintiff to show a close temporal proximity between the time that he engaged in protected activity and the date of adverse employment action. Because the first arguable adverse action a notice of suspension occurred in February 1999, the October memorandum is too far removed to support an inference of retaliatory motive for his termination in April 1999.
Yet, other than this rather vague testimony, Plaintiff has come forward with no further evidence of complaints of discrimination after October 1998. The asserted later written complaints referred to by Robinson have not been submitted. Plaintiff offers no explanation for failing to offer them in opposition to the motion although he specifically testified that he retained a copy of the October 9 th memorandum in his own personal file at home. Id. at 140. Therefore, I am left with only Robinsons self-serving characterization that any later written memorandum constituted protected activity.
While the burden is not onerous, it is also not empty or perfunctory. Plaintiff's evidence must be such that, if the trier of fact finds it credible, and the employer remains silent, the plaintiff would be entitled to judgment as a matter of law. Butler v. City of Prairie Village, 172 F.3d 736, 747-48 (10 th Cir. 1999), quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). In a recent unpublished decision, the Tenth Circuit noted that not all internal complaints to management qualify as protected activities. After noting that under some circumstances, even informal complaints to management can constitute protected participation under Title VII. The court decline[d], however, to extend the Title VII and ADEA participation clauses to include generalized and cursory complaints, unsupported by specific factual allegations, to an employer when those cursory complaints are neither related to, nor would reasonably lead to a proceeding provided for by statute. Shinwari v. Raytheon Aircraft Co., 215 F.3d 1337, 2000 WL 731782 at *5 (10 th Cir.), cert. denied, 121 S.Ct. 843 (2001) (unpublished attached). In the present case, Plaintiff has failed to show that the purported post-October complaints set forth any specific factual allegations, much less those which would reasonable lead to a proceeding under Title VII. Having failed to establish a prima facie case of retaliation, Defendants are entitled to judgment as a matter of law.
Wherefore,
IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment is granted, and a judgment consistent with FED. R. CIV. P. 58 shall be entered.
IT IS FURTHER ORDERED that the pretrial conference set for Tuesday, May 29, 2001 at 2:00 p.m. and the trial set for Monday, July 16, 2001 at 9:00 a.m. are hereby vacated.
UNITED STATES MAGISTRATE JUDGE, Presiding By Consent