Opinion
Civil Action 21-cv-01158-WJM-STV
07-21-2022
SALAHUDDIN BUKHARI HALL, Plaintiff, v. U.S. ENGINEERING CONSTRUCTION, LLC, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This matter comes before the Court on Defendant's Motion for Summary Judgment [#46] (the “Motion”), which was referred to this Court [#48]. The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, this Court respectfully RECOMMENDS that Defendant's Motion be GRANTED.
I. UNDISPUTED FACTS
This action arises out of Plaintiff Salahuddin Hall's employment with Defendant U.S. Engineering Construction, LLC (“USE”) as a sheet metal journeyman in 2019. [## 1; 46 at 1-13] Plaintiff is a Black, Muslim man of Arab descent and asserts three claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for discrimination on the basis of race, religion, and national origin. [See generally #1]
The undisputed facts are drawn from the “Movant's Statement of Undisputed Material Facts” section of Defendant's Motion for Summary Judgment [#46], as well as Plaintiff's Complaint [#1] and response to Defendant's Motion [#47]. The Court refers to the sequentially numbered facts set forth in the Movant's Material Facts as “SOF#.” In his Response to Defendant's Motion for Summary Judgment, Plaintiff did not directly respond to Defendant's material facts or arguments for summary judgment. [See generally #47] The Court thus accepts as undisputed the material facts asserted by Defendant for which Plaintiff fails: (1) to explain the basis for his denial and/or (2) to support that denial with a specific reference to supporting evidence in the record. See Fed.R.Civ.P. 56(e)(2); WJM PRACTICE STANDARDS, § III(F)(4)(b) (“Any denial [of a material fact asserted by the opposing party] shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to supporting evidence in the record.”). Moreover, although Plaintiff's statements in his Response are not made under penalty of perjury and thus do not comply with the technical requirements of Rule 56(c)(4), when considering specific facts identified by Plaintiff the Court remains mindful of his “pro se status and [his] apparent lack of familiarity with litigation formalities.” Wimbish v. Nextel W. Corp., 174 F.Supp.3d 1275, 1277 n.1 (D. Colo. 2016). Accordingly, “the Court will assume that, if called upon to affirm the truth of the allegations in [his summary judgment briefing] under penalty of perjury, [Plaintiff] would do so.” Id. Finally, the Court periodically cites directly to the exhibits submitted with the parties' briefing on the Motion to provide additional context.
Plaintiff is an employee-member of the International Association of Sheet Metal, Air, Rail, Transportation Workers Local Number Nine (the “Union”). [#46, SOF2] Defendant is an employer-member of the Union. [Id. at SOF4] The Union operates a hiring hall in Denver, Colorado, and employee-members transition between construction jobs according to the labor needs of employer-members. [Id. at SOF3, 7] Between completing construction on one job and transitioning to their next assignment, employee-members return to the hiring hall to await a job referral. [Id. at SOF7]
Defendant's Field Operations Coordinator-Tony Italiano-is responsible for requesting job referrals from the hiring hall, as well as transferring and laying off employee-members of the Union as needed to complete Defendant's construction projects. [Id. at SOF8] Mr. Italiano is also responsible for investigating terminable offenses committed by union members and liaising with the worker's Union business representatives, pursuant to the terms of the Collective Bargaining Agreement (“CBA”). [#46-2, ¶ 3] ¶ 2019, Mr. Italiano hired Plaintiff to work on three of Defendant's construction projects. [#46, SOF9, 22, 45-46]
Defendant first hired Plaintiff through a job referral from the Union for a project at Bollman Tech. [Id. at SOF9] When he started, Plaintiff received a copy of-and agreed to adhere to-Defendant's Code of Conduct, which prohibits violence and threatening behavior. [Id. at SOF16, 17] Plaintiff worked at Bollman Tech from June 24, 2019, to July 29, 2019, when Mr. Italiano transferred him to another of Defendant's construction projects. [Id. at SOF10, 21] Plaintiff reports having no complaints regarding his treatment at the Bollman Tech project. [Id. at SOF20]
On July 29, 2019, Mr. Italiano transferred Plaintiff to Defendant's WeWork project (“WeWork”). [Id. at SOF22] Plaintiff remained employed at WeWork until he was removed from the jobsite around mid-day on July 31, 2019. [Id.] Plaintiff alleges that on July 29 or 30, 2019, while he was employed at WeWork, his foreman, John Perez, called Plaintiff a “pussy” and asked him “[w]hat the fuck is wrong with you?” [##1 at 4; 46, SOF27] Plaintiff had not met Mr. Perez before his employment on the WeWork project, and he reports no other interactions between himself and Mr. Perez. [#46, SOF23; see #46-1 at 37 (105:1-7)]
On July 31, 2019, Mr. Italiano received a call from Mr. Perez asking him to come to the WeWork site because Plaintiff was threatening him. [#46, SOF31] Mr. Italiano asked the Union's Business Representative, Jon Alvino, to meet him at the site. [Id. at SOF32] As Plaintiff's union representative, Mr. Alvino was responsible for protecting Plaintiff's rights under the CBA by investigating any complaints Plaintiff lodged. [#46-3 at ¶ 7] During an interview with Mr. Alvino and Mr. Italiano, Plaintiff admitted that he threatened Mr. Perez with physical harm after Mr. Perez told Plaintiff he was violating worker safety policies. [#46, SOF34-36] Subsequently, Mr. Italiano informed Mr. Alvino that he was terminating Plaintiff for threatening Mr. Perez and that he wanted Plaintiff immediately replaced and banned from working on any of Defendant's future projects. [Id. at SOF39] However, Mr. Alvino convinced Mr. Italiano to reclassify Plaintiff's termination as a reduction in force so that Plaintiff could be re-hired by Defendant in the future. [Id. at SOF40; #46-2 at ¶ 16] Mr. Alvino then walked Plaintiff off the job site and referred him to another Union employer-member, with whom Plaintiff began working the next day at a new job site. [#46, SOF41]
The Statement of Facts lists this date as “July 31, 2020”; however, this appears to be a typographical error. [#46, SOF31; see #46-2 at ¶ 9 (affidavit by Tony Italiano stating that he received a call from Mr. Perez on July 31, 2019)].
Defendant hired Plaintiff for the third time in September 2019, and Plaintiff began work at Defendant's VF Corp project (“VF Corp”) on September 12, 2019. [Id. at SOF44-46] Plaintiff's superintendent at VF Corp was Steve O'Donnell, who Plaintiff thought was “wonderful.” [Id. at SOF47; #46-1 at 21 (63:25)-22 (64:1)] Within a few days of starting at VF Corp, Plaintiff saw a sign stating “[w]e would love for you to go back to New York, New York,” which is where Plaintiff is from. [##46, SOF48; 1 at 3] Plaintiff did not experience any other harassing behaviors between September 12, 2019 and September 20, 2019. [#46 at SOF49] On September 20, 2019, Plaintiff was suspended for two days for violating Defendant's safety rules, and he returned to work on September 25. [Id. at SOF50, 53]
In Plaintiff's deposition testimony, he claims that he was also verbally told to “go back to New York” by Mr. Alvino. [#46-1 at 40 (115:18-24)]
The Statement of Facts lists the date of Plaintiff's suspension as “September 20, 2020”; however, this appears to be a typographical error. [#46, SOF50; see #46-2 at ¶ 18 (affidavit by Tony Italiano stating that Plaintiff was suspended on September 20, 2019)]
On September 26, 2019, a plumbing foreman at VF Corp, Jovani Gaeta, called Mr. Italiano to report that he smelled marijuana emanating from an area in which Plaintiff and a Caucasian sheet metal journeyman named Joshua Blackburn were located. [Id. at SOF56-57, 59] The smell and its location were confirmed to Mr. Gaeta by two other USE supervisory foremen. [Id. at SOF57] Consequently, and in accordance with the Sheet Metal Industry Alcohol and Substance Abuse Policy (“Substance Abuse Policy”), Mr. Gaeta drove Mr. Blackburn and Plaintiff to a drug testing clinic to administer a probable cause drug test. [Id. at SOF60]
Prior to September 26, 2019, Plaintiff had never interacted with Mr. Gaeta. [#46, SOF58]
Defendant is bound under the CBA to follow the Substance Abuse Policy. [#46, SOF54] Pursuant to the Substance Abuse Policy, a probable cause drug test can be implemented when probable cause is observed and documented by a jobsite supervisor and one other supervisor or management employee. [Id. at SOF55; #46-4 at 6].
Once at the clinic, Mr. Blackburn provided a urine sample. [Id. at SOF61] Plaintiff, however, refused to provide a sample and left the clinic without taking a drug test. [Id. at SOF62] Before he left the clinic, Plaintiff was informed that leaving without providing a sample would be deemed an automatic failure of the test. [Id. at SOF71] And, under the Substance Abuse Policy, an employer-member must terminate any employee who refuses to cooperate and provide a sample for a probable cause drug test. [Id. at SOF67] Accordingly, Mr. Italiano terminated Plaintiff on September 26, 2019, for violating the Substance Abuse Policy. [Id. at SOF68]
Plaintiff alleges that this reason is pretextual and argues that he was fired due to his race, religion, and national origin. [See generally ##1; 47].
On the same day he was terminated, Plaintiff lodged a complaint with Mr. Alvino about the drug test, stating that he “felt he was being targeted at the job site unfairly.” [Id. at SOF70; #46-3 at ¶ 15] Mr. Alvino immediately started an investigation. [Id.] Mr. Alvino conducted interviews with Mr. Gaeta and two other foremen, who confirmed that they had smelled marijuana in the area in which Plaintiff and Mr. Blackburn were located. [#46, SOF73] Mr. Alvino also interviewed the drug test clinicians, who confirmed that Plaintiff had left the clinic without providing a sample after being warned that doing so would constitute an automatic failure. [Id. at SOF71] Based on his investigation, Mr. Alvino concluded that Plaintiff had not been unfairly targeted by Defendant and that the requisite probable cause was present to necessitate the drug test. [Id. at SOF76] Mr. Alvino further concluded that Defendant complied with the CBA's Substance Abuse Policy in terminating Plaintiff. [Id. at SOF78] Writing on behalf of the Union, Mr. Alvino delivered a letter to Plaintiff-dated September 27, 2019-confirming the results of the Union's investigation and suspending Plaintiff from the Union for failure to comply with the Substance Abuse Policy. [Id. at SOF79] Plaintiff confirmed receiving a copy of this letter. [Id. at SOF80]
On April 27, 2021, Plaintiff, proceeding pro se, filed the instant lawsuit against USE, asserting claims under Title VII for (1) discrimination, (2) retaliation, and (3) hostile work environment, on the basis of race, religion, and national origin. [#1] The Complaint identifies several alleged discriminatory incidents: (1) a foreman writing a sign stating “[g]o back to New York”; (2) a foreman telling Plaintiff to “pray on your own time”; (3) a foreman telling Plaintiff “I'm going to write you up for every little thing to help your black ass get back to New York”; (4) a foreman stating, in reference to Plaintiff, “I'm going to get this nigger fired”; and (5) two foremen discussing Plaintiff by text saying they could “get this nigger to quit.” [Id.] Plaintiff also alleges that he engaged in a “protected activity” under Title VII by lodging complaints with Defendant and the Union regarding the aforementioned comments. [Id. at 5]
Plaintiff was appointed counsel for the limited purpose of attending a final pretrial conference, but has otherwise proceeded pro se. [## 74, 79, 83]
After the Complaint was filed, Plaintiff has alleged in a deposition and through an affidavit prepared by Jama'hl Hardaway that Mr. Perez also called him an “Arab Nigger.” [##46, SOF42; 46-1 at 43 (21:23-25)-44 (122:1-13); 47-1 at 1] Defendant argues that the Court should not consider this allegation because it did not appear in Plaintiff's Complaint and was not administratively exhausted. [#46 at 20-21].
On January 28, 2022, Defendant filed the instant Motion seeking summary judgment on all of Plaintiff's claims. [#46] On February 16, 2022, Plaintiff filed a Motion to Deny Defendant's Motion for Summary Judgment, which this Court construed as a response to the Motion. [##47, 49] On March 2, 2022, Defendant filed a reply in support of the Motion. [#51]
II. STANDARD OF REVIEW
Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact, which the movant may do “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant's claim” when the movant does not bear the burden of persuasion at trial. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the moving party bears the burden of proof at trial, they “must establish, as a matter of law, all essential elements of the [claim or affirmative defense on which summary judgment is sought] before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). In other words, the moving party “must support its motion with credible evidence showing that, if uncontroverted, the moving party would be entitled to a directed verdict.” Rodell v. Objective Interface Sys., Inc., No. 14-cv-01667-MSK-MJW, 2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). If the movant carries its initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Adler, 144 F.3d at 671.
“[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Evidence, including testimony, offered in support of or in opposition to a motion for summary judgment “must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that, if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. “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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving party.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
Plaintiff brings three claims under Title VII for (1) discrimination, (2) retaliation, and (3) hostile work environment. [See generally #1] Under Title VII, it is unlawful for an employer to “discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “[A]n unlawful employment practice is established,” if the plaintiff can demonstrate that their race, religion, or national origin “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). Defendant seeks summary judgment on all of Plaintiff's claims. [See generally #46]
A. Discrimination Claim
Plaintiff alleges that Defendant terminated his employment due to his race, religion, and national origin. [#1 at 3] A Title VII plaintiff can prove a disparate treatment claim “either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Young v. United Parcel Serv., Inc., 575 U.S. 206, 212-213 (2015). “Direct evidence is evidence that-if believed- proves the existence of a fact in issue without inference or presumption.” Eddy v. City and Cnty. of Denver, No. 15-cv-02539-MSK-STV, 2018 WL 1470196, at *12 (D. Colo. Mar. 26, 2018) (citing Punt v. Kelly Servs., 862 F.3d 1040, 1047-48 (10th Cir. 2017)). Plaintiff has failed to cite to any direct evidence of discrimination regarding his termination. [See generally ##1; 47] As a result, the Court must rely upon the burden-shifting framework set forth in McDonnell Douglas.
Under this framework, the plaintiff carries the initial burden of establishing a prima facie case for discrimination. See Garrett, 305 F.3d at 1216. Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment action. Id. “If the defendant does so, the plaintiff must either show that his race, age, gender, or other illegal consideration was a determinative factor in the defendant's employment decision, or show that the defendant's explanation for its action was merely pretext.” Id.
“[A]lthough the articulation of the plaintiff's prima facie test might vary somewhat depending on the context of the claim and the nature of the adverse employment action alleged . . . [t]he 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.'” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000) (quoting Tex. Dept. of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)); see also Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). The “[p]laintiff's burden here is ‘not onerous' and only requires a ‘small amount of proof necessary to create' an inference of discrimination.” Landon v. Winston Hosp. Inc., No. 20-cv-01547-MEH, 2022 WL 715123, at *14 (D. Colo. Mar. 10, 2022) (quoting Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005)). To establish a prima facie case for discrimination, Plaintiff must show that he: (1) is a member of a protected class; (2) suffered an adverse employment action; (3) was qualified for the position at issue; and (4) was treated less favorably than similarly situated employees not in his protected class. See Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007); see also Robinson v. Dean Foods Co., 654 F.Supp.2d 1268, 1276 (D. Colo. 2009) (“The broader requirement of showing circumstances giving rise to an inference of discrimination may be (and often is) satisfied by proof that the employer treated similarly situated employees more favorably, but such proof is just one means via which such circumstances can be proven.”) (quotation omitted)).
Defendant argues that Plaintiff fails to meet his prima facie burden. [#46 at 15-16] Defendant does not contest that termination can constitute an adverse employment action, nor that Plaintiff is a member of a protected class. [Id.]; see Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1267 (10th Cir. 2015) (stating that Title VII “expressly prohibit[s] discriminatory discharge as an adverse employment action”). Therefore, to establish his prima facie case, Plaintiff must demonstrate that he was qualified for the position at issue and was treated less favorably than others not in the protected class. See Piercy, 480 F.3d at 1203.
Defendant argues that Plaintiff cannot establish that he was treated less favorably than other similarly situated employees outside his protected class, and the Court agrees. [#46 at 15-16] “Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.” Juarez v. Utah, 263 Fed.Appx. 726, 738 (10th Cir. 2008) (quotation omitted). Defendant argues that it treated Plaintiff the same way as Plaintiff's Caucasian co-worker, Joshua Blackburn. [#46 at 16] Specifically, Plaintiff and Mr. Blackburn are both sheet metal journeymen, were both found in an area smelling of marijuana, and were subsequently driven-together-to the drug testing clinic to take a probable cause drug test. [Id. at SOF56, 60] Once at the clinic, Mr. Blackburn took the test while Plaintiff elected to leave without providing a urine sample. [Id. at SOF61-62]
Plaintiff does not dispute that Mr. Blackburn qualifies as a similarly situated employee. [See generally #47] Moreover, Plaintiff does not identify any disparate treatment other than his firing, nor does he identify similarly situated employees other than Mr. Blackburn who were treated differently than Plaintiff. [See generally ##1; 47] Plaintiff further does not dispute that the CBA's Substance Abuse Policy requires Defendant to terminate any employee who fails to participate in a probable cause drug test. [#46, SOF67] Nor does he identify any other evidence giving rise to the inference that he was discriminatorily fired due to his race, religion, or national origin. [#47]; see Hubbard v. United Servs. Auto. Ass'n, 264 Fed.Appx. 696, 698 (10th Cir. 2008) (affirming summary judgment for the defendant where the plaintiff failed to respond to the defendant's asserted material facts and provided few references to specific facts or exhibits in the record that supported his discrimination and retaliation claims); see also Adler, 144 F.3d at 671 (stating that, at the summary judgment stage, the nonmovant “may not simply rest upon its pleadings” but must “go beyond the pleadings and set forth specific facts”) (internal quotations omitted).
In his Complaint, Plaintiff alleges that his co-workers informed him that more than one foreman had mentioned getting Plaintiff fired. [See generally #1] Plaintiff's Response fails to identify either the co-workers who informed Plaintiff of these comments or the foremen who allegedly made these comments. [See generally #47] Nor does it provide information as to when or where these incidents occurred. [See generally id.] Moreover, Plaintiff's Response does not indicate whether any of these foremen were involved in his termination, nor does it provide information suggesting that these comments were related to his termination or to the circumstances surrounding the probable cause test. [Id.]
Moreover, even if Plaintiff had established a prima facie case, Defendant argues-and the Court agrees-that it met its burden under McDonnell Douglas by citing a legitimate, non-discriminatory reason for terminating Plaintiff: Plaintiff's violation of the Substance Abuse Policy. [#46 at 16-17]; see Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000) (finding a legitimate, nondiscriminatory reason where the plaintiff had a documented history of “workplace violations” and “specific complaints”), abrogated on other grounds by Nat'l R.R. Passenger Corp v. Morgan, 536 U.S. 101 (2002). Although Plaintiff's Response states that his firing was pretext for a bet that Defendant's workers had to get him fired, Plaintiff: (1) does not provide evidence of this bet, (2) does not provide evidence that the alleged bet was based in discrimination, and (3) does not provide evidence disputing the facts surrounding the probable cause drug test. [See generally #47]
Therefore, because Plaintiff does not dispute that he was treated similarly to a coworker outside his protected classes or introduce evidence that otherwise gives rise to the inference that he was terminated for discriminatory reasons, he fails to establish a prima facie case for discrimination under Title VII. See Kendrick, 220 F.3d at 1227; see also Robinson, 654 F.Supp. at 1275. Accordingly, this Court RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED with respect to Plaintiff's Title VII discrimination claim. See Celotex Corp., 477 U.S. at 323 (“[A] complete failure of proof concerning an essential element” of the nonmovant's claim “necessarily renders all other facts immaterial,” thus clearing the way to grant summary judgment).
B. Retaliation Claim
Plaintiff next asserts a retaliation claim, alleging he was fired in retaliation for reporting discriminatory conduct. [#1 at 6] “Title VII forbids retaliation against employees who voice opposition to, or participate in an investigation or proceeding alleging, an unlawful employment practice by his or her employer.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007) (citing 42 U.S.C. § 2000e-3(a)). “‘Opposition' to an employer's conduct is protected by § 2000e-3(a) only if it is opposition to a ‘practice made an unlawful employment practice by [Title VII].'” Dean v. Comput. Scis. Corp., No. 07-cv-00823-PAB-KMT, 2009 WL 1394445, at *1 (D. Colo. May 19, 2009) (quoting Petersen v. Utah Dept. of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002)). Informal complaints to supervisors can constitute a protected activity if the complaint is regarding alleged discrimination. See, e.g., Somoza v. Univ. of Denver, 513 F.3d 1206, 1213-14 (10th Cir. 2008) (finding that the “various instances of informal complaints” to supervisors regarding perceived disparate treatment constituted a protected activity under Title VII); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (“Protected opposition can range from filing formal charges to voicing informal complaints to superiors.”).
As with Title VII discrimination claims, the McDonnell Douglas burden-shifting framework applies to retaliation claims where the plaintiff relies on circumstantial evidence, as is the case here. See Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir. 2008). To establish a prima facie case of retaliation, a plaintiff must show that: (1) they “engaged in protected opposition to Title VII discrimination”; (2) they “suffered an adverse employment action contemporaneous with or subsequent to such opposition”; and (3) “there is a causal connection between the protected activity and the adverse employment action.” Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th Cir. 1994). Here, Defendant argues that it is entitled to summary judgment on Plaintiff's retaliation claim because Plaintiff can neither establish that he engaged in any protected opposition, nor that a causal connection exists between his alleged protected activity and an adverse employment action. [#46 at 23-24]
The Court agrees. Plaintiff's Response does not identify any instances of protected opposition to discrimination, nor does it direct the Court to any evidence of such protected opposition. [See generally #47] For this reason alone, Plaintiff has failed to meet his prima facie burden. See Schaeffer v. JBS Carriers, Inc., No. 19-cv-01406-NY, 2020 WL 7043867, at *10 (D. Colo. 2020) (“While the court must draw all factual inferences in favor of the non-moving party, the court cannot draw inferences in the absence of proffered, admissible facts.”); see also Perez v. El Tequila, LLC, 847 F.3d 1247, 1255 (10th Cir. 2017) (“The district court is not required to integrate a non-movant's statement of disputed facts with the law, and counter the propositions advanced by the movant. Were it that way, the district court would act as an advocate, rather than a neutral arbiter.”).
Nonetheless, because of Plaintiff's pro se status, the Court has broadly reviewed the exhibits attached to Plaintiff's Response to determine whether Plaintiff has identified any protected opposition. Even after such a review, however, the Court cannot find instances where Plaintiff engaged in protected opposition. See Collins v. BAC Home Loan Servicing LP, 912 F.Supp.2d 997, 1008 (D. Colo. 2012) (“At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record.”). For example, the following exchange from Plaintiff's deposition is illustrative of Plaintiff's alleged efforts to lodge complaints with his employer:
Q. “Who did you complain to within U.S. Engineering?”
A. “I could never get them on the phone.... I called and called and called. I never got a call back.”[#46-1 at 45 (207:13-19); see also ##46-1 at 30 (83:7-15) (Plaintiff stating that he never received a call back from Defendant); Id. at 38 (107:12-21) (“I don't know if I actually talked to them”); Id. at 46 (208:15-22) (“I never got a call back”); [47-3 at 14-15 (31:4-8) (claiming that Plaintiff called but never actually spoke to Mr. Italiano)] Based on this evidence the Court cannot conclude that Plaintiff ever actually lodged a complaint with Defendant-formally or informally-that would constitute a protected opposition. See, e.g., Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (affirming the district court's grant of summary judgment as to the plaintiff's retaliation claim where the plaintiff failed to “provide any evidence showing that he even made the complaints” that were claimed as part of his prima facie case). Beyond assertions related to Plaintiff's failed attempts to contact Defendant by phone, the Court is unable to identify any protected opposition in which Plaintiff engaged.
The only confirmed complaint the Court can identify is a complaint lodged by Plaintiff with his Union representative, Mr. Alvino, on the day he was fired, in which Plaintiff complained about the drug test and his feeling that “he was being targeted at the job site unfairly.” [#46-3 at ¶ 15] But, to establish the requisite causal connection for a prima facie case of retaliation, Plaintiff must show that Defendant “was motivated to terminate his employment by a desire to retaliate for his protected activity.” Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Therefore, the adverse employment action must occur “contemporaneous with or subsequent to such opposition.” Cole, 43 F.3d at 1381. Plaintiff lodged his complaint to Mr. Alvino after his employment was terminated. [#46-3 at ¶ 19 (Alvino affidavit describing investigatory process)] For this reason, this complaint cannot serve as the protected opposition which led to Plaintiff's firing, and Plaintiff does not identify any other adverse employment action besides his termination. Cole, 43 F.3d at 1381.
Therefore, because Plaintiff has failed to cite evidence establishing that he engaged in a protected opposition to discrimination, this Court RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED with regard to Plaintiff's Title VII retaliation claim. See Eddy, 2018 WL 1470196, at *4 (holding that, at the summary judgment stage, “if the respondent's evidence is inadequate to establish a prima facie claim or defense, then no factual determination of that claim or defense is required and summary judgment may enter”).
C. Hostile Work Environment Claim
Finally, Defendant argues that the allegations underpinning Plaintiff's claim do not support the finding of a hostile work environment. [#46 at 19-22] Title VII's protections against employment discrimination “includes an employee's claims of a hostile work environment based on race or national origin discrimination,” or religious discrimination. Hererra v. Lifkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (racial or national origin discrimination); see also Faragalla v. Douglas Cty. Sch. Dist. RE 1, Nos. 09-1393, 101433, 2011 WL 94540, at *9 (10th Cir. 2011) (religious discrimination). A workplace “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment” constitutes a hostile work environment under Title VII. MacKenzie v. City and Cnty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005), abrogated on other grounds by Lincoln v. BNSF Ry. Co., No. 17-3120, 2018 WL 3945875 (10th Cir. Aug. 17, 2018). A plaintiff thus may succeed in proving a hostile work environment claim either based on the pervasiveness of the religious, racial, or national origin-based harassment, or its severity. See Hernandez v. Valley View Hosp. Assc'n, 684 F.3d 950, 957 (10th Cir. 2012); Faragalla, 2011 WL 94540, at *9.
In considering whether a Plaintiff has presented evidence sufficient to support the finding of a hostile work environment, “[t]he severity and pervasiveness of the conduct must be judged from both an objective and a subjective perspective.” O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999). “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.'” Id. at 1098 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). “[W]hether an environment is ‘hostile' or ‘abusive' can be determined only by looking at all the circumstances . . . includ[ing] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “In demonstrating these factors, the plaintiff ‘must show more than a few isolated incidents' of enmity.” Sidlo v. Millercoors, LLC, 718 Fed.Appx. 718, 728 (10th Cir. 2018) (quoting Lounds v. Lincare, Inc., 812 F.3d 1208, 1223 (10th Cir. 2015)).
In his Complaint, Plaintiff alleges several potentially discriminatory incidents. [#1 at 3-4] The Court will address the incidents in turn, starting with alleged harassment that is unrelated to Plaintiff's race, religion, or national origin. Sometime between July 29 and 31, 2019, Plaintiff's foreman, John Perez, allegedly called Plaintiff a “pussy” and asked Plaintiff “[w]hat the fuck is wrong with you?” [#46, SOF22-23, 26] Defendant argues that, because the language used by Mr. Perez was unrelated to Plaintiff's protected group membership, these comments do not give rise to a hostile work environment claim. [#46 at 20] The Court agrees.
Title VII does not “establish ‘a general civility code,' for the workplace,” and general harassment is not actionable. Marks v. Sessions, No. 16-cv-02106-WYD-MEH, 2017 WL 4278498, at *4 (D. Colo. Sept. 27, 2017) (quoting Oncale, 523 U.S. at 81). Rather, the harassment must be based on protected class. See id. Accordingly, ‘the run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces is not the stuff of a . . . hostile work environment claim.'” Id. (quoting Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012)). Plaintiff fails to establish that Mr. Perez's two alleged comments stemmed from animus regarding Plaintiff's race, religion, or national origin, and thus constituted a hostile work environment. Marks, 2017 WL 4278498, at *4 (finding that the plaintiff failed to provide sufficient details to show that remarks she alleged were discriminatory); see also Trujillo v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998) (finding the plaintiff failed to satisfy his “only hope for escaping summary judgment” by presenting “sufficient evidence that the conduct he complains of stemmed from racial animus”).
Plaintiff's next two allegations involve comments that have the potential to implicate Plaintiff's race, religion, or national origin, but still do not establish a hostile work environment claim. Plaintiff alleges that on September 12, 2019, his foreman wrote a sign stating, “we would love for you to go back to New York, New York,” which is where Plaintiff is from. [##46, SOF48; 1 at 4] Plaintiff further alleges that his foreman told Plaintiff to “pray on your own time.” [#1 at 3] However, “[n]ot every reference to an employee's race or national origin in the workplace gives rise to an inference of discrimination” under Title VII. Faragalla, 2011 WL 94540, at *10 (finding that, even though a comment made by the plaintiff's co-worker telling her to “go home” potentially invoked the plaintiff's race and national origin, it was insufficient to support her hostile work environment claim absent context demonstrating the comment stemmed from discriminatory animus); see also Ross v. Colo. Dept. of Transp., No. 11-cv-02604-REB-KMT, 2012 WL 5975086, at *6-7 (D. Colo Nov. 14, 2012) (finding no hostile work environment where the plaintiff produced evidence of religious discussions in the workplace but failed to produce evidence that anyone at the workplace ever disparaged the plaintiff's religion generally, or plaintiff personally, because of his religious beliefs). Thus, although these comments reference Plaintiff's religion and, potentially, his race, they do not demonstrate clear discriminatory animus, nor did Plaintiff provide context which would allow the Court to infer such animus. [See generally #47]; see Faragalla, 2011 WL 94540, at *10. Thus, these two comments do not support Plaintiff's hostile work environment claim. Id.
In his deposition testimony Plaintiff also claimed that his union representative, Mr. Alvino, similarly expressed that Plaintiff should “go back to New York.” [#46-1 at 40 (113:18-21)] As explained below, a subsequent comment by a foreman coupled a comment about Plaintiff going back to New York with Plaintiff's race and, thus, the Court includes comments about Plaintiff going back to New York within the category of comments that could have race-based implications.
Finally, Plaintiff alleges three instances of discriminatory comments that clearly invoke his race, two of which involve the use of racial slurs. Plaintiff first alleges that his foreman told Plaintiff that he was “going to write you up for every little thing to help your black ass get back to New York.” [#1 at 3] Plaintiff next alleges that a co-worker told him that they witnessed Plaintiff's foreman say, in reference to Plaintiff, “I'm going to get this nigger fired.” [#1 at 3-4] Finally, Plaintiff alleges that co-workers informed him that two foremen exchanged text messages regarding Plaintiff in which they discussed how they could “get this nigger to quit.” [Id.]
Plaintiff's deposition testimony and an affidavit attached to Plaintiff's Response includes additional allegations of discriminatory comments made by Mr. Perez, including that he allegedly called Plaintiff an “Arab nigger.” [##46-1 at 43 (21:23-25)-44 (122:1-13); 47-1] Defendant argues that the Court should not consider this allegation as part of Plaintiff's hostile work environment claim. [See #46 at 20-21] However, even if the Court considers this comment along with the other allegations included in Plaintiff's Complaint [#1], Plaintiff still has not presented sufficient evidence of a hostile work environment, as described above. See Newland v. Stevinson Toyota E., Inc., 505 F.Supp.2d 689, 70001 (D. Colo. 2007) (granting summary judgment on a plaintiff's hostile work environment claim where she alleged at least six incidents of harassment but failed to provide specific facts and references to evidentiary support that would support her claim).
“There can be no debate” that the racial slur allegedly used “is inherently insulting and offensive, and that it has no non-discriminatory use in the workplace.” Foreman v. W. Freightways, LLC, 958 F.Supp.2d 1270, 1276 (D. Colo. Aug. 1, 2013). However, to establish a claim for a racially hostile work environment, “plaintiffs must prove more than a few isolated incidents of racial enmity.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987). “Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994). Plaintiff's claims of three isolated occurrences of racially discriminatory comments, although offensive, fail to demonstrate the type of severe or pervasive discriminatory conditions from which a hostile work environment could be inferred. See, e.g., Al-Kazaz v. Unitherm Food Sys., 594 Fed.Appx. 460, 462 (10th Cir. 2014) (affirming a of grant summary judgment because the plaintiff failed to establish that three discriminatory comments directed at him were not isolated incidents); Foreman, 958 F.Supp.2d at 1276 (concluding that, although troublesome, the two occasions upon which the plaintiff's supervisor allegedly used a racial epithet, neither of which occurred in the plaintiff's presence, and about which plaintiff learned second hand from co-workers, did not rise to a level sufficient to establish a hostile work environment); Faragalla, 2011 WL 94540, at *11 (affirming a grant of summary judgment where the plaintiff's hostile workplace claim was only premised on two incidents of alleged harassment). Therefore, this Court RECOMMENDS Defendant's Motion for Summary Judgment be GRANTED with respect to Plaintiff's Title VII hostile work environment claim.
Moreover, with respect to the racial epithets, Plaintiff does not provide the Court with the names of the individuals involved in this conduct, nor the dates on which the interactions took place. [See generally ##1, 47] It is therefore difficult for the Court to assess the pervasiveness of the identified comments. See Al-Kazaz v. Unitherm Food Sys., 594 Fed.Appx. 460, 462-63 (10th Cir. 2014) (affirming a grant of summary judgment because the plaintiff failed to establish that three discriminatory comments were related, continuous, and made by repeat commenters). The lack of detail prohibits the Court from concluding that “a rational trier of fact [could] find for” Plaintiff on his hostile work environment claim. Matsushita Elec. Indus. Co., 475 U.S. at 587.
In his Complaint, Plaintiff checked a box indicating that he intended to bring claims under The Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. [#1 at 2] However, the Complaint only lists three claims under Title VII, and makes no reference to any disabilities. [See generally #1]
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendant's Motion for Summary Judgment [#46] be GRANTED and that Judgement enter in favor of Defendant.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).