Federal District Court Opinions
MERSWIN v. WILLIAMS COMPANIES, INC., (N.D.Okla. 12-4-2006)
RENE SAWANIE MERSWIN, Plaintiff, v. THE WILLIAMS COMPANIES,
INC. Defendant. Case No. 05-CV-0436-CVE-FHM. United States
District Court, N.D. Oklahoma. December 4, 2006
OPINION AND ORDER
CLAIRE EAGAN, Chief Judge
Now before the Court is Defendant’s Motion for Summary
Judgment (Dkt. # 47) and the Motion to Strike Portions of
Selected Exhibits from Plaintiff’s Summary Judgment
Response (Dkt. # 66)[fn1]. Defendant, The Williams
Companies, Inc. (“TWC”), moves for summary judgment on
plaintiff’s claims of race and national origin
discrimination, hostile work environment, and retaliation
in violation of Title VII of the Civil Rights Act (“Title
VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981 (“Section 1981”). Plaintiff, Rene Sawanie
Merswin (“Merswin”), appearing pro se, alleges that
defendant limited his promotional opportunities on the
basis of his race and/or national origin and retaliated
against him as a result of his formal and informal
complaints of discrimination. Defendant argues that
plaintiff has not set forth a prima facie case of
discrimination. Additionally, defendant contends that it
had legitimate, nondiscriminatory reasons for its actions
and that plaintiff has failed to show that these proffered
reasons are, in fact, pretext for illegal Page 2
discrimination. For the reasons set forth below, the Court
grants defendant’s motion for summary judgment.
I.
Merswin is an African-American man who was raised in
Suriname. He holds a bachelor of science degree in business
administration and a master’s degree in business
administration. TWC hired Merswin on June 1, 1999 as a
Systems Analyst in the Information Technology (“IT”)
Department. At this time, his supervisor was Alice Ann
Hunter. On June 30, 2001, Merswin was promoted to Senior
Systems Analyst. According to the TWC job summary for a
Senior Systems Analyst, Merswin’s job responsibilities
included the translation of system requirements into
technical design through development testing and
implementation in a timely, cost-effective manner. Dkt. #
47, Ex. D, Job Summary. According to plaintiff, his “actual
job responsibility” was to provide “project/technical
leadership on moderately complex projects” including Remedy
and Tele Alert applications. Dkt. # 50, at 12.
On October 21, 2001, Merswin’s Performance Evaluation
Report indicated that he ranked himself higher than his
supervisors, peers, and colleagues with respect to his job
skills. Dkt. # 47, Ex. F. Whereas Merwin gave himself the
highest score of “4” or “5” in ranking abilities such as
leadership competency and integrity competency, other
persons reviewing his work gave him average scores ranging
from “2” to “4.” Some of the comments at the end of the
evaluation were negative. For example, one person commented
that “Rene can become extremely defensive if he perceives
that his competence is being questioned.” Id. In a November
4, 2001 email, Merswin implied that the poor results were,
in part, due to his manager’s discriminatory attitude. In
Page 3 describing his manager, he wrote, “she has a natural
and professional weakness against people of colors.” Dkt. #
47, Ex. G.
In 2002, Donna Hall (“Hall”) became a manager in the IT
Department at TWC; she had supervisory responsibility over
Merswin. Dkt. # 47, Ex. E, Hall Affidavit, ¶ 3. At
that time, Merswin was already trained in and provided
Remedy and Tele Alert support. In 2002 and 2003, plaintiff
received excellent performance reviews from Hall. Dkt. #
50, Ex. 21. Hall noted that Merswin had “exceeded
expectations.” Id. She noted that he had “taken on
additional responsibilities of learning the PVCS products”
and that he had improved his team skills. Id.
When Hall became manager, she required employees to
cross-train “in order to become familiar with different
applications to ensure that more than one employee
supported each application.” Id., ¶ 6. Hall contends
that, while she gave each employee the option to select the
application on which they would cross-train, “Merswin was
the only employee who did not voluntarily select a new
application to learn.” Id., ¶ 8. However, Merswin
claims that he asked to learn the IT Valuation Model
application, but Hall refused. Dkt. # 50, at 15. Hall
directed Merswin to train on the PVCS Tracker application.
Dkt. # 47, Ex. E, ¶ 13. She assigned another
employee, Jamie Blodgett (“Blodgett”), to work on the
Remedy and Tele Alert applications. Dkt. # 47, Ex. E,
¶ 12. Hall created an Internal Systems Cross
Training Worksheet to ensure that at least three employees
were trained for each application. The worksheet listed
Merswin as trained for the Remedy, PVCS Tracker, and Tele
Alert applications. Dkt. # 47, Ex. E, Attachment 1. It
listed Blodgett as trained for Remedy, Tele Alert, and IVR
applications. Id.
Beginning in June 2003, plaintiff claims that he was
subjected to unfavorable discriminatory treatment that
created a hostile work environment. He claims that, at that
time, someone placed Page 4 under his chair a box of “old
stuff” that belonged to a former colleague who committed
suicide in 2000. Dkt. # 50, at 27. While Hall allegedly
witnessed this occurrence, she refused to have fingerprints
taken of the box to determine who had placed it by
plaintiff’s chair. Id. Plaintiff also complains of Hall
attempting to teach him Oklahoma slang and making comments
that he was not an expert in Crystal Reports. Id. In his
deposition, he pointed to other incidents that allegedly
contributed to a hostile environment. For example,
plaintiff related an incident when Hall gave him McDonald’s
toys for his children and an incident when a co-worker gave
him a “full” water bottle that he believed had been
tampered with. Dkt. # 47, Ex. U, Merswin Deposition, at
73-76.
On October 20, 2003, Merswin sent a letter to Barbara Kent
(“Kent”), the Director of IT Applications, to “share
information about [himself], because the desire of one or
two people in the Infrastructure group is to end [his]
employment at Williams.” Dkt. # 47, Ex. I. Merswin met with
Kent and told her that he was being discriminated against
and that there were people “out to get him.” Dkt. # 47, Ex.
J.
On March 24, 2004, Merswin met with Linda Garhart
(“Garhart”), a Human Resources Business Partner, and
complained that Hall took Remedy assignments away from him
to make him “vulnerable.” Dkt. # 47, Ex. K. Merwin
maintains that Hall gave his Remedy assignments to Blodgett
and continued to do so after his March 24, 2004 meeting
with Garhart. Dkt. # 50, at 56. For example, on April 4,
2004, Hall cancelled a meeting between Merswin and an
employee from PeopleSoft group to discuss a Remedy project;
on the same day, Merswin saw Blodgett discussing the
project with that employee. Id.
On April 9, 2004, Mewswin met with Hall to discuss his job
goals. Dkt. # 47, Ex. M. Merswin listed one of his goals to
“crosstrain with team members to gain additional knowledge
and Page 5 skills.” Id. On the same day, Merswin met again
with Garhart to discuss his belief that Hall was trying to
“push him out” by assigning Blodgett to train on the Remedy
application. Dkt. # 47, Ex. L. In his response to
defendant’s motion for summary judgment, plaintiff points
to other “documented evidence of [his] removal from primary
Remedy role.” Dkt. # 50, at 57. Specifically, he points to
a May 2004 staff list that designated his role in the
Remedy group as “secondary” and his role in the PVCS group
as “primary.” Dkt. # 50, Ex. 15, at 29. Additionally, he
notes that Blodgett was given responsibility for training
another employee on the Remedy application. Id. at 31.
Merswin also contends that, on an undisclosed date,
Blodgett accused him of “behaving as if he is above her.”
Dkt. # 50, Merswin Affidavit, ¶ 13.
Sometime in 2004, TWC employees learned that TWC planned to
outsource some of its IT Department to another company. On
April 14, 2004, Hall sent an email to various employees,
including Merswin, indicating that TWC had “narrowed the
field of potential outsourcing providers to one, IBM.” Dkt.
# 50, at 79. Hall’s email quoted Michael Johnson
(“Johnson”), TWC Senior Vice President: “From an employee
perspective, we see the potential for transitioned
employees to have greater future opportunities with IBM.”
Id.
Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on April 27,
2004 alleging race and national origin discrimination. He
claimed that he was “transferred to train on other software
applications, while my less senior and less experienced
non-black co-worker remained assigned to the same
application.” Dkt. # 47, Ex. N. The same day he sent an
email to Johnson, Kent, and Ron Mucci, the Vice President
of IT, claiming that he was forced out of Remedy work and
required to cross-train on other applications. Dkt. # 47,
Ex. O. In his email, Merswin claimed, “I am the Remedy
Technical Lead/Architect by Page 6 responsibility and
efforts, but I am not being recognized because of
co-workers’ discomfort.” Id. He maintained that “if was
white [sic] and not foreign born, I would at least be
recognized by this time as a Systems Analyst Staff.” Id.
Merswin claimed that he had been moved from primary to
secondary role in the Remedy application at a “critical
time frame when IBM, the potential outsourcing vendor, may
be talking to key application support people.” Id. He
claimed that Hall moved him to a secondary role “in order
to give more visibility to another employee with less
Remedy TelAlert experience.” Id. Kent responded to
Merswin’s email on April 28, 2004, stating, “I am
disappointed that you continue to believe that the
circumstances surrounding the changes in our organization
and the cross training taking place in your group is
discriminatory. . . . We have tried to explain that the
changes in our organization and the cross training efforts
are in the best interest of the organization and to your
benefit personally.” Dkt. # 46, Ex. P. Kent further noted
that it was within plaintiff’s right to visit with the
EEOC. Id.
TWC signed a contract with IBM on June 1, 2004 to outsource
most of its IT Department to IBM. TWC outsourced three
hundred sixteen (316) out of five hundred fifteen (515)
employees in the IT Department to IBM. Dkt. # 47, Ex. R,
Nancy Gustine Affidavit, ¶¶ 2, 3. As part of
the outsourcing process, TWC provided to IBM a list of Key
Provider and Critical Support Personnel (“Key Provider
List”). Dkt. # 47, Ex. R, Attachment 1. The Key Provider
List included nineteen employees from Tulsa, Oklahoma;
Merswin was not included in this list. Id. On June 19,
2004, Merswin sent an email to several TWC managers stating
that “IBM Global Services would like to offer me regular
employment for support at their Williams account, but IBM
decision makers were not given the opportunity to do so.”
Dkt. # 47, Ex. V. Page 7
Plaintiff’s employment with TWC terminated as of July 1,
2004, due to the outsourcing of the IT Department to IBM.
Dkt. # 47, Ex. S. IBM thereafter offered him short-term
supplemental employment as of July 1, 2004. On August 10,
2004, IBM offered plaintiff long-term supplemental
employment commencing on August 16, 2004 and continuing for
thirteen (13) to twenty-two (22) months. Merswin’s
employment with IBM ended in March 2005. In connection with
the termination, he received a severance package and signed
a form releasing IBM from any claims. Dkt. # 47, Ex. X.
II.
Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate
where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993).
“The plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at
317.
“When the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.
. . . Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no `genuine issue for trial.'” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (citations omitted). In its review, the Court
construes the record in the light most favorable to the
party opposing summary judgment. Garratt v. Walker, 164
F.3d 1249, 1251 (10th Page 8 Cir. 1998). “The mere
existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be
evidence on which the [trier of fact] could reasonably find
for the plaintiff.” Anderson, 477 U.S. at 252. In essence,
the inquiry for the Court is “whether the evidence presents
a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 251-52.
III.
In his second amended complaint (Dkt. # 24), plaintiff
alleges that defendant discriminated against him on the
basis of his race and national origin in violation of Title
VII and Section 1981. He claims that he suffered from an
adverse employment action “when Remedy Support assignment
was suddenly taken away from him and given to Ms. Jamie
Blodgett when she falsely accused the Plaintiff that he `is
behaving as if he is above her.'” Dkt. # 24, § 4a.
Plaintiff claims that this constituted “an unlawful
discriminatory act by the Defendant in order to limit and
segregate the Plaintiff in such a way to deprive him from
employment opportunity and adversely affect his status as
an employee.” Id. Plaintiff continues that, as a result of
the discrimination, he was “prevented from becoming a
regular employee with IBM when he transitioned as part of
the outsourcing contract between Defendant and IBM.” Id.,
§ 4b. Additionally, plaintiff contends that
defendants created and tolerated a hostile work environment
that caused plaintiff emotional pain and suffering. Id.,
§ 4c. Finally, plaintiff contends that defendant
“influenced the job transfer process to IBM” as a means of
retaliating against plaintiff after his filing a
discrimination claim with the EEOC and advising his
superiors of alleged discrimination. Id. at 5.
In its motion for summary judgment, defendant interprets
plaintiff’s complaint to allege, in part, that he was
discriminated against as a result of being terminated from
TWC and outsourced to Page 9 IBM. However, in his
response, plaintiff states that he agreed that defendant
made “the legitimate decision to outsource most of its IT
Department functions and employees to IBM.” Dkt. # 50, at
10. Plaintiff does “not challenge the defendant’s rights to
conduct reductions-in-force, layoffs or outsource of IT
Department.” Id. at 35. Plaintiff further notes, “the
outsourcing to IBM provided a great opportunity for
educated and experienced employees such as Plaintiff.” Id.
at 20. Thus, although his complaint is not clear, plaintiff
does not allege that the outsourcing itself constituted an
adverse employment action; rather, plaintiff alleges that
defendant impermissibly decreased his work on the Remedy
application and permitted a non-black employee, namely
Blodgett, to work on Remedy projects even though plaintiff
was more experienced. This conduct, plaintiff alleges, was
retaliatory in nature and was meant to prevent IBM from
hiring plaintiff as a full-time, regular employee after the
outsourcing. Additionally, plaintiff contends that
defendants impermissibly failed to promote him on the basis
of his race.
To survive summary judgment on his failure-to-promote and
retaliation claims under Title VII and Section 1981,
plaintiff must satisfy the McDonnell Douglas burden
shifting analysis. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973); see also Patterson v. McLean
Credit Union, 491 U.S. 164, 186 (1989) (applying the
McDonnell Douglas burden-shifting framework to claims under
42 U.S.C. § 1981); Perry v. Woodward, 199 F.3d 1126,
1135 (10th Cir. 1999) (“While McDonnell Douglas involved a
Title VII claim for failure to hire, the analytical
framework it pioneered applies equally to claims brought
pursuant to section 1981.”). First, plaintiff must
establish a prima facie case of employment discrimination.
McDonnell Douglas, 411 U.S. at 802. In the
failure-to-promote context, plaintiff must show that he (1)
belongs to a protected class; (2) was qualified for the
promotion; (3) was not promoted; and (4) that the position
remained open Page 10 or was filled with a person in a
non-protected class.[fn2] Amro v. Boeing Co., 232 F.3d 790,
796 (10th Cir. 2000). Plaintiff establishes a prima facie
case of retaliation if he shows (1) he engaged in protected
opposition to discrimination; (2) he was subject to adverse
employment action; and (3) a causal connection exists
between the protected activity and the adverse action.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d at 1234.
Despite the slight variation depending on the nature of the
adverse employment action alleged, “the critical prima
facie inquiry in all cases is whether the plaintiff has
demonstrated that the adverse employment action occurred
under circumstances which give rise to an inference of
unlawful discrimination.” Id. at 1227 (internal quotations
marks and citations omitted). If plaintiff establishes a
prima facie case, a presumption of discrimination arises.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000).
Next, defendant must articulate a legitimate
nondiscriminatory reason for the employment decision to
rebut the presumption of discrimination. McDonnell Douglas,
411 U.S. at 803; Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 255 (1981); English v. Colorado
Dept. of Corrections, 248 F.3d 1002, 1009 (10th Cir. 2001).
At this stage, defendant need not rebut evidence
established under the first step; it must only rebut the
inference that it acted out of discriminatory animus.
E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1318 (10th
Cir. 1992). The ultimate burden of proving discrimination
remains at all times on plaintiff. Burdine, 450 U.S. at
253. If defendant carries its burden of production, the
presumption of discrimination drops out of the case. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).
Page 11
Finally, the burden shifts back to plaintiff to show that
defendant’s stated nondiscriminatory reason is mere pretext
for unlawful discrimination. Rivera v. City & County of
Denver, 365 F.3d 912, 920 (10th Cir. 2004). To show
pretext, plaintiff must produce evidence that would, if
believed by the trier of fact, show that the true reason
for the action was discriminatory. Plaintiff can produce
evidence of “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy
of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.” Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Here, plaintiff fails to establish a prima facie case that
defendant failed to promote him on the basis of his race
and/or national origin. Plaintiff contends that, given his
2002 and 2003 performance reports, he should have been
promoted to the “Systems Analyst Staff grade level 22 or
higher.” Dkt. # 50, at 36. However, there is no evidence
that the position to which plaintiff refers was open, that
defendant sought to promote any employee to that position,
or that plaintiff applied to that position. Plaintiff does
not contend that another employee was impermissibly
promoted to Systems Analyst Staff instead of plaintiff;
rather, he merely argues that, given his experience and
performance results, he should have been promoted to that
position. Merely because plaintiff received good
performance reports for two years does not mean that he is
entitled to a promotion, however.[fn3] His allegations,
unsupported by any evidence that defendant sought to fill
or promote any employee to Systems Analyst Staff or that
plaintiff applied for that position, are insufficient to
establish a prima facie case of discrimination. Page 12
Linked to his failure-to-promote claim, plaintiff argues
that defendant discriminated against him on account of his
race because defendant gave a white employee, namely
Blodgett, the lead position with respect to the Remedy
application. Plaintiff argues that “Defendant segregated
the Plaintiff in such a way to deprive him from leadership
and employment opportunities” and “disciplined [plaintiff]
. . . with a so-called `accelerated’ cross-training.” Dkt.
# 50, at 42. Specifically, plaintiff was “forced” to
cross-train under the PVCS Tracker application “in order to
double time that Plaintiff would spend on PVCS security
related emails and requests in order for him to spend less
time on Remedy Support efforts.” Id. at 29. By undergoing
this accelerated PVCS training, plaintiff contends that he
was pulled away from what he perceived to be the more
desirable Remedy work. At the same time, defendant
permitted Blodgett to work on Remedy-related projects.
The Court is perplexed by plaintiff’s argument. Whereas
most claims concerning discrimination in training hinge on
a plaintiff’s failure to receive training to the same
extent as members of non-protected classes, here, plaintiff
contends that the receipt of PVCS training was
discriminatory. Plaintiff implies that, if he had been
permitted to focus solely on the Remedy application rather
than learning the PVCS Tracker application, he would have
been more valuable to IBM or would have been “flagged” on
the Key Provider List. Plaintiff’s argument is purely
conjectural. There is absolutely no evidence that, had
plaintiff not been trained in PVCS and permitted to work
solely on Remedy and Tele Alert, TWC would have included
plaintiff on the Key Provider List or that IBM would have
retained him as a regular employee. Surely plaintiff cannot
contend that defendant was under an obligation to ensure
that he was the only employee trained in Remedy so as to
increase his value to either TWC or IBM; such a notion is
contrary to any rational business practice. Moreover, it is
illogical to assume that plaintiff’s additional training in
PVCS Page 13 Tracker somehow put him at a disadvantage
with respect to his position at either TWC or IBM. In fact,
the evidence clearly indicates that the opposite is true.
In his 2003 performance report, Hall noted, “Rene has also
stepped up to the plate to take on additional
responsibilities, such as learning [PVCS] Tracker.
Exceptional feedback was received from the Tracker
customers on how Rene managed the support while Mike Wolters
was out of town for several weeks.” Dkt. # 50, Ex. 21, at
19. TWC clearly and logically viewed training and
proficiency in multiple applications as an asset, not a
detriment.
Plaintiff has also failed to show that he was treated
differently than other employees. TWC required each employee
in the IT Department to train in multiple applications.
Even Blodgett, the employee to whom plaintiff frequently
points to show differential treatment, was trained in
multiple applications. Plaintiff contends, however, that
Blodgett was “promoted” to the primary Remedy technician,
and he was relegated to the secondary position. As
evidence, he points to a computer staff list that states
his role as “secondary” with respect to the Remedy group.
Dkt. #47, Ex. 15. Also, plaintiff points to an email from
Blodgett where Blodgett informed plaintiff that she had
trained another employee, Dea Dildine (“Dildine”), on the
Remedy application and requested that plaintiff provide
Dildine with “more advance [sic] cross-training.” Id.
Finally, he argues that Blodgett was treated more favorably
than plaintiff because Hall moved plaintiff’s one-on-one
meetings from Mondays to Thursdays and kept Blodgett’s
meetings on Mondays. Dkt. # 50, at 28. It is unclear how
Blodgett’s email or Hall’s decision to meet with plaintiff
on Thursdays instead of Mondays provide any support for
plaintiff’s argument. Also, the mere fact that plaintiff
was listed as “secondary” instead of “primary” with respect
to the Remedy application is insufficient to establish a
prima facie case of discrimination. According to the Tenth
Circuit, “a mere Page 14 inconvenience or an alternation
of job responsibilities” is not an adverse employment
action sufficient to establish a prima facie case. Sanchez
v. Denver Public Schools, 164 F.3d 527, 532 (1998).
Moreover, even assuming arguendo that plaintiff established
a prima facie case of discrimination based on the training
system, defendant has set forth a legitimate,
nondiscriminatory reason for its employment action.
Plaintiff argues that defendant discriminated against him
by “forcing” him to cross-train in PVCS and permitting
Blodgett to work on the Remedy application. However,
defendant notes that the reason for this policy was “to
ensure that more than one employee supported each
application.” Dkt. # 50, Ex. E, Hall Affidavit, ¶ 6.
Plaintiff was assigned to PVCS training because he was
already trained in Remedy and Tele Alert. Likewise, Hall
assigned Blodgett as an additional employee to support the
Remedy application. Id., ¶ 10. Hall’s Internal
Systems Cross Training Worksheet is evidence of the
company’s policy of ensuring that multiple employees were
trained on each application. Dkt. # 50, Ex. E, Attachment
1. The worksheet listed at least three employees who were
responsible for each application. Id. With respect to
Remedy, plaintiff, Blodgett, and Dildine were listed. Id.
Defendant clearly had a rational and nondiscriminatory
reason for cross-training. By cross-training, defendant
ensured that multiple employees were proficient with
respect to each application such that work would not be
compromised in case of an employee’s absence. Indeed,
plaintiff was assigned to undergo “accelerated” training in
the PVCS Tracker application because the primary employee
responsible for that application was absent for a
substantial period of time due to a disability. Therefore,
defendant’s reason for requiring plaintiff to expand his
knowledge beyond Remedy and Tele Alert was legitimate and
nondiscriminatory. Page 15
Plaintiff argues that the cross-training worksheet and
defendant’s policy of cross-training is mere pretext for
unlawful race and national origin discrimination. He claims
that the Internal Systems Cross Training Worksheet “was
used to take work assignments away from Plaintiff.” Dkt. #
50, at 16. Additionally, plaintiff states: “As an employee
who holds MBA degree and he can distinguish a learning
opportunity from abuse or pretext [sic].” Dkt. # 50, at 18.
Plaintiff fails to provide any evidence to support these
allegations of pretext. Mere assertions of pretext, without
evidence, are insufficient to create a genuine issue of
material fact. Celotex, 477 U.S. at 324; Shapolia v. Los
Alamos National Laboratory, 992 F.2d 1033, 1039 (10th Cir.
1993) (noting that the plaintiff’s mere assertions and own
assessment of his job performance were inadequate to raise
an issue of fact for trial with respect to pretext in a
Title VII case).
In addition, the Court determines that defendant is entitled
to summary judgment on plaintiff’s retaliation claim
because plaintiff has failed to establish a prima facie
case of discriminatory retaliation. While plaintiff engaged
in a protected activity by filing a complaint with the EEOC
on April 27, 2004, plaintiff has not shown that he was
subject to adverse employment action as a result of the
protected activity. With respect to his retaliation claim,
plaintiff points to much of the same evidence as described
above. He argues that key Remedy assignments were taken
from him and given to Blodgett and that he was “disciplined
by Defendant with a so-called `accelerated’ cross-training
for PVCS Tracker as a back-up support person, in light of
looming outsourcing, in retaliation for opposing
discrimination.” Dkt. # 50, at 46. For the same reasons as
set forth above, the Court determines that the defendant’s
conduct in assigning Blodgett some Remedy work and training
plaintiff in the PVCS Tracker application did not
constitute an adverse employment action sufficient to
establish a claim of retaliation. Page 16
Additionally, as in his failure-to-promote claim, plaintiff
points to the fact that TWC did not include plaintiff’s name
on the Key Provider List. Plaintiff alleges that this
action led directly to IBM’s decision to terminate
plaintiff in March 2005. Plaintiff contends that “plaintiff
suffered materially when Defendant had identified Ms.
Blodgett and Ms. Fairchild as Key Contributors for Remedy
instead of Plaintiff who had proven himself over five years
as a senior Remedy Systems Analyst.” Dkt. # 50, at 46.
However, the Court notes that neither Blodgett nor
Fairchild was included on the Key Provider List. Dkt. # 47,
Ex. R, Attachment 2. Thus, it is unclear why plaintiff
contends that TWC treated plaintiff differently from
similarly situated employees, such as Blodgett, who were
later retained by IBM. Ultimately, plaintiff provides no
evidence, other than his personal views concerning his
skills, that TWC should have included him on the Key
Provider List or that TWC’s exclusion from that list was
due to racial animus.
Finally, plaintiff provides no evidence that TWC’s conduct
was in any way causally connected to IBM’s decision to
terminate him in March 2005. In the case of a retaliation
claim, “[t]he causal connection may be shown by producing
evidence of circumstances that justify an inference of
retaliatory motive, such as protected conduct closely
followed by adverse action.” Bullington v. United Air
Lines, Inc., 186 F.3d 1301, 1320 (10th Cir. 1999)
(implicitly overruled by National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), on other grounds); see
Kendrick, 220 F.3d at 1234. Here, plaintiff contends that
“defendant began to systematically retaliate against
Plaintiff after he met on July 8, 2003 with a senior vice
president and voiced his concerns regarding opportunities
for minorities at Williams.” Dkt. # 50, at 47. He filed his
EEOC complaint on April 27, 2004. There is no evidence
that, following this conduct, TWC engaged in any conduct
that would persuade IBM to terminate plaintiff because of
his race, national origin, or as a result of his Page 17
protected conduct. On the contrary, IBM offered plaintiff
short-term supplemental employment as of July 1, 2004; thus
his employment was uninterrupted after the outsourcing. IBM
even offered plaintiff long-term employment commencing on
August 2004. There is no evidence that plaintiff’s ultimate
termination from IBM in March 2005 was in any way linked to
TWC’s conduct or his protected activities in 2003 and 2004.
Thus, plaintiff fails to establish a prima facie case of
retaliation; defendant is entitled to summary judgment on
that claim.
To the extent that plaintiff brings a claim for hostile
work environment,[fn4] the Court grants summary judgment on
that claim as well. “Although hostile work environment is
not explicitly mentioned in Title VII, it is well
established a victim of a racially hostile or abusive work
environment may bring a cause of action pursuant to 42
U.S.C. § 2000e-2(a)(1).” Bolden v. PRC, Inc., 43
F.3d 545, 550 (10th Cir. 1994). To constitute actionable
harassment, the conduct must be “sufficiently severe or
pervasive to alter the conditions of [the victim’s]
employment and create an abusive working environment.”
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(internal quotation marks and citations omitted); see also
Bolden, 43 F.3d at 550. Additionally, plaintiff must show
that “the harassment was racial or stemmed from racial
animus. General harassment if not racial or sexual is not
actionable.” Bolden, 43 F.3d at 500. Plaintiff must show
“more than a few isolated incidents of racial enmity.”
Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10 Cir.
1987); Bolden, 43 F.3d at 550. Page 18
Here, plaintiff point to a few incidents that allegedly
indicate a hostile environment and provide circumstantial
evidence of racial discrimination. For example, the
plaintiff recites an anecdote where a co-worker gave him a
water bottle that was filled all the way to the top. Dkt. #
50, Ex. U, at 170-75. Also, plaintiff states that Hall gave
plaintiff a bag of McDonald’s toys for his five children
and that she tried to teach him Oklahoma slang. Id. at
118-23, 138-39. Finally, plaintiff points to an email that
Hall forwarded to plaintiff and other employees reciting a
story about Eddie Murphy and Michael Jordan. Dkt. # 47, Ex.
Y. The Court fails to see how the first several anecdotes
created a hostile environment or relate in any way to
racial animus. With respect to the Eddie Murphy and Michael
Jordan email, the Court determines that this did not create
a racially hostile environment. While the email does
concern race, it does not portray African-Americans in a
negative light. In fact, the email, albeit light-hearted,
highlights the problems associated with racial stereotypes.
It is certainly possible that plaintiff felt uncomfortable
as a result of this email; however, as a matter of law,
plaintiff’s subjective belief is insufficient to establish
a claim for a racially hostile environment. Thus, plaintiff
has failed to establish a genuine issue of material fact
with respect to the allegedly racially hostile environment.
Defendant is entitled to summary judgment on that claim.
To the extent that plaintiff merely points to these
anecdotes to support his claims of discrimination in
promotional opportunities and retaliation, the Court finds
that these anecdotes do not alter its above analysis. These
anecdotes are not circumstantial evidence of either
discriminatory failure-to-promote or retaliation. Page 19
IV.
The Court finds that plaintiff has failed to establish a
prima facie case of race or national origin discrimination,
both with respect to his failure-to-promote and retaliation
claims. Plaintiff also fails to establish a genuine issue
of material fact with respect to a hostile work
environment. Therefore, defendant is entitled to summary
judgment on all of plaintiff’s Title VII and Section 1981
claims.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Dkt. # 47) is granted, and the Motion to Strike
Portions of Selected Exhibits from Plaintiff’s Summary
Judgment Response (Dkt. # 66) is moot. A separate judgment
is entered herewith.
[fn1] The Court did not place substantial weight on the
exhibits to which defendant objects. Since the Court grants
defendant’s motion, the inclusion of the exhibits at issue
does not prejudice the defendant. Therefore, the motion is
moot.
[fn2] This Court recognizes that the Tenth Circuit cases
“have sometimes articulated the prima facie case
differently, particularly as to the fourth prong and
whether it requires the plaintiff to show that the person
promoted was outside of the protected class to which the
plaintiff belongs.” Jaramillo v. Colorado Judicial Dep’t,
427 F.3d 1303, 1307 n. 1 (10th Cir. 2005).
[fn3] In fact, given plaintiff’s relatively poor evaluations
in 2001, there may have been good reason to deny him a
promotion, even if the position of Systems Analyst Staff
were open.
[fn4] It is unclear whether plaintiff brings a claim on the
basis of a hostile work environment. In his response to
defendant’s motion for summary judgment, plaintiff states
that he “has not made a separate claim for a hostile work
environment from his discrimination and retaliation
claims.” Dkt. # 50, at 36. However, plaintiff makes
repeated references to a hostile work environment.