Opinion
No. 01-4182-SAC.
November 10, 2004
MEMORANDUM AND ORDER
This employment discrimination case comes before the court on defendant's motion for summary judgment. Plaintiff, an ex-employee of the United States Postal Service ("USPS"), brings claims of age, race, and disability discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), Title VII, and the Rehabilitation Act, respectively. Also pending is plaintiff's motion for recusal of judge and stay of proceedings pending transfer of forum. The court addresses this latter motion first.
Motion for Recusal/Stay/Transfer
In this motion, plaintiff requests recusal of this court, stay of the case pending transfer, and transfer of the case to Wichita or Kansas City. In support of this motion, plaintiff states the following reasons: 1) plaintiff previously "informed the court" that he and his chief witness had been harassed through the City of Topeka police department and housing authority; 2) plaintiff and his chief witness both unsuccessfully attempted to remove other cases from state court; and 3) plaintiff, his counsel, and his chief witness have suffered retaliation for proceedings in some other case. Based upon these alleged facts, plaintiff claims that this court, "out of bias and animus does not believe [plaintiff] has federally protected rights against discrimination that other individuals in identical circumstance[s] clearly do." Dk. 76, p. 2. Plaintiff additionally contends that his witnesses "would not be protected from retaliation for their testimony in [this] court or in any proceeding held in the Topeka federal Courthouse." Id.
Although plaintiff fails to state any authority for his motion, the court presumes it is brought pursuant to 28 U.S.C. §§ 144 or 455.
Additional details are set forth in plaintiff's notice of witness harassment, Dk. 67.
This court's orders of remand in the other cases plaintiff alludes to were based upon lack of jurisdiction, and did not address the merits of any claims of discrimination or other federally protected rights. These adverse rulings "cannot in themselves form the appropriate grounds for disqualification." Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). This court is not alleged to have been involved, and was not involved, in the events involving purported harassment and/or retaliation.
The court denies plaintiff's motion for recusal because no basis for recusal has been shown, and for essentially the same reasons as those set forth in defendant's response brief, Dk. 77. Accordingly, plaintiff's related requests for stay and transfer shall be denied, and the court will address defendant's motion for summary judgment.
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the non-moving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87; Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The non-moving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. A court is not obligated to comb through the summary judgment record and make a party's case for it by locating materials not referenced by that party. Adler v. Wal-Mart Stores, Inc. 144 F.3d 664, 672 (10th Cir. 1998).
Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 3 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
All facts on which a motion or opposition is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admissions. Affidavits or declarations shall be made on personal knowledge and by a person competent to testify to the facts stated which shall be admissible in evidence. D. Kan. R. 56.1(d). The Court may only consider evidence whose content or substance is admissible. Conoco Inc. v. J.M. Huber, 148 F. Supp. 2d 1157, 1166 (D. Kan. 2001); Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995). "Hearsay testimony that would be inadmissible at trial may not be included." Conoco, 148 F. Supp. 2d at 1166. "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed.R.Evid. 602. Statements not based on personal knowledge must be disregarded. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). "To survive summary judgment, `nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.'" Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995).
Undisputed facts
Plaintiff is a white male who was hired by the Postal Service on December 1, 1994 as a casual mail handler at the Topeka, Kansas, Processing and Distribution Center. At the time, he was 62 years of age. Casual employees are non-career employees who earn no annual or sick leave, and are not entitled to health insurance, life insurance or retirement benefits. Casual employees are not entitled to premium or holiday pay, are required to work weekends, odd hours, and holidays, and are limited to two ninety-day terms of employment in a calendar year, plus a potential twenty-one day period of employment during Christmas.
The job of a mail handler involves moving and emptying bags, and securing and labeling the bags. The functional purpose of a mail handler is to load, unload, and move bulk mail and to perform other duties incidental to the movement and processing of mail. The duties of mail handlers include loading mail from trucks, separating mail received from trucks and conveyors for dispatch to other conveying units, separating and delivering mail for delivery to distribution areas, dumping mail from sacks, carrying mail to distributors for processing, picking up sacks, loading mail onto trucks, carrying mail from cancelling machines to distribution cases, operating fork lifts, cleaning and sweeping work areas, offices, restrooms, and trucks, and numerous other tasks.
Plaintiff underwent a pre-employment physical that noted no limitations or restrictions. Plaintiff answered "No" to the following question on the Medical Examination and Assessment form he signed on November 21, 1994: "Do you have any medical disorder or physical impairment which could interfere in any way with the full performance of duties of the position for which you are applying?" The Medical Examination and Assessment noted that one of the functional requirements for the job of mail handler was the "ability for rapid mental and muscular coordination simultaneously." Other functional requirements noted for the job were standing, walking, pulling, and pushing for eight to ten hours at a time. The medical examination of plaintiff revealed no limitations or restrictions of any kind, and in the section entitled "Suggested Accommodations," nothing was noted.
When plaintiff was hired, he had no concerns about being able to do the job. Plaintiff complains that he was occasionally asked to do tasks he was not hired to do. Specifically, plaintiff alleges that he was directed to empty mail bags on a conveyor belt, which was the job of a full-time employee, and that he was directed to sort and pigeonhole mail, which is a clerk's job. He believes he could have performed these assignments at his own pace, but not at the hurried pace required by his supervisor. Plaintiff never told his supervisor, a black man approximately 25 years younger than plaintiff, that he was having difficulty performing any of the jobs assigned to him, or that he had any disability.
The decision to terminate plaintiff was made by Jack Barnes, a white male who was 45 years old at the time. Barnes was the Manager of Distribution Operations at the Topeka General Mail Facility and supervised both plaintiff's supervisor (Jim Love), and plaintiff. Barnes's stated reason for terminating plaintiff is that plaintiff was unable to perform the duties of a mail handler, the position for which he was hired. According to Barnes, plaintiff received three to four times the training any other casual or career mail handler received but was still unable to work without supervision, and continuously needed assistance in remembering how to complete his job assignments. Barnes terminated plaintiff effective July 8, 1995.
After being informed of his termination, plaintiff told Barnes for the first time that he was disabled. Plaintiff never asked Love, Barnes, or anyone else working for the USPS for an accommodation of his alleged learning disability, which plaintiff claims to have had his entire life.
The nature and extent of plaintiff's learning disability is not disclosed in the record.
Plaintiff considers his learning disability to be "second nature" and states he has learned how to deal with it. He claims there are very few things that he can't accomplish. He lives alone, manages his own money, has never had anyone suggest that he needs a guardian or conservator, needs no assistance with daily living chores such as laundry and cleaning, and owns and operates a car.
Plaintiff holds a commercial driver's license, a Kansas private investigator's license, a paralegal certificate, and is a notary public. Prior to working for USPS, he drove a truck and owned various businesses, including a laundry and dry cleaning business, a rug and carpet cleaning business, a florist and greenhouse business, and an auto sales and leasing business.
After his termination from USPS, plaintiff worked at various places, including the Veteran's Administration Hospital. He did not ask for an accommodation for his position as a tractor operator at the V.A. because he did not need one. He worked for Scotts Company as a part-time seasonal merchandiser until he suffered a stroke in August of 2002. Despite his stroke, he maintains an independent lifestyle and is currently building an airplane.
Plaintiff receives disability payments from the Veteran's Administration ("VA") for a non-service-related disability.
Plaintiff does not contest the above facts. Instead, plaintiff attempts to show that his age, race and disability were motivating factors in his termination through his additional statement of facts which is supported solely by an affidavit signed by USPS employee Rosemary Denise Price. Defendant objects to Ms. Price's affidavit and asks the Court to disregard it. Because this affidavit is the primary support for plaintiff's case, the court examines it thoroughly below.
Defendant additionally cites to portions of plaintiff's deposition which defendant has included in the record, thus the court examines those as well.
Plaintiff's Statement of Facts, Paragraph 1.
Plaintiff alleges he was a dedicated employee who performed his work assignments in a satisfactory manner. In support, plaintiff refers to paragraph three of Ms. Price's affidavit, in which she states plaintiff "appeared" to be more dedicated to his work than "some other people."
Ms. Price bases this vague testimony on admittedly limited contact with plaintiff, as she acknowledges in paragraph two of her affidavit that she did not work the same shift as plaintiff and saw him only "occasionally" when he was starting his shift. During her deposition, Ms. Price was even more specific about her limited contact with plaintiff. Ms. Price testified that she did not work the same shift as plaintiff (Exh. A, Price Dep. R. at 82); she did not know what plaintiff's job duties included (Exh. A, Price Dep. R. at 80, 82); she saw him, from a distance, less than ten times, for only a few moments at a time, and only spoke to him once or twice (Exh. A, Price Dep. R. at 79, 81, 82); she was not aware of his claimed disability (Exh. A, Price Dep. R. at 86 and 90); and she never observed any conduct on the part of defendant indicating discrimination against the plaintiff on the basis of age, race, or disability (Exh A, Price Dep. R. at 89, 90, 91).
Ms. Price does not provide any specific examples of plaintiff's work performance and does not identify any of the "other people" with whom she compares plaintiff. Her testimony is vague and is not based upon personal knowledge of plaintiff's job duties or of the quality of plaintiff's work. Additionally, whether plaintiff was a "dedicated" employee is irrelevant because plaintiff was allegedly discharged because of performance problems, not lack of dedication.
Plaintiff's Statement of Facts, Paragraphs 2, 3, 4, 5, and 6.
In these paragraphs plaintiff criticizes the work performance and conduct of his immediate supervisor, Jim Love. Plaintiff also implies African American employees were given preferential treatment. In support of his statements, plaintiff refers to paragraph four of Ms. Price's affidavit.
In the first sentence of paragraph four of her affidavit Ms. Price criticizes Love's job performance prior to his becoming a supervisor, and his promotion. (Exh. A, Price Dep. R. at 54-62, 74-77.) But no showing has been made that the person responsible for supervising, promoting, or retaining Love had any input into plaintiff's termination. Thus no relevance has been shown.
The last four sentences of paragraph four of Ms. Price's affidavit contain vague allegations about African Americans being retained or promoted over better qualified white employees. This testimony is vague, as Ms. Price does not identify any African American individual who was similarly situated to the plaintiff who was promoted ahead of the plaintiff or was retained in spite of poor work performance. Ms. Price's testimony is also conclusory and demonstrates no basis of knowledge.
Plaintiff's Statement of Facts, Paragraph 7
In this paragraph plaintiff alleges defendant discriminated against all "older" workers. In support of this assertion plaintiff refers to paragraph five of Ms. Price's affidavit.
In paragraph five of her affidavit Ms. Price admits that defendant does not discriminate against older persons in hiring, but alleges USPS disliked them and harassed them until they retired or left employment. This testimony is vague and conclusory and is not based upon personal observations. For example, in the second sentence of paragraph five Ms. Price states supervisors told her that older workers are worthless because of their age. Ms. Price does not identify which supervisor(s) told her this, or whom these unidentified supervisors were referring to when they allegedly made this statement.
In the fourth sentence of paragraph five Ms. Price opines that plaintiff was discharged because of his age, but does not reveal any factual basis for that conclusion. In her deposition, Ms. Price stated that she never observed any conduct toward plaintiff indicating age discrimination. (Exh. A, Price Dep. R. at 89, 90).
In the seventh sentence of paragraph five Ms. Price alleges she saw "Bob Willis and George Hammil being harassed due to their age." However, she does not describe the specific discriminatory actions or conduct leading her to that conclusion, or identify the person or persons who allegedly discriminated against these individuals.
Plaintiff's Statement of Facts, Paragraphs 8, 9 and 10
In paragraphs eight, nine and ten of his response, plaintiff suggests African American employees were not disciplined for misconduct including the use of drugs. In support of this assertion plaintiff refers to paragraphs six and seven of Ms. Price's affidavit.
In paragraph six of her affidavit Ms. Price alleges "many employees" used drugs, but fails to establish that she was in a position to have detailed information about how many employees used drugs or the disciplinary action taken against other employees. Furthermore, out of the "many employees" who allegedly used drugs, Ms. Price identifies only one African American as having received preferential treatment. This is insufficient evidence of a pattern, practice or policy to discriminate against white employees.
Paragraph seven of Ms. Price's affidavit contains additional allegations of preferential treatment of one African American. These statements, although sufficiently specific, fail to show any basis of knowledge. But even if the evidence supports the implication that African American employees are not disciplined for misconduct that would result in disciplinary action against white employees, the testimony in paragraphs six and seven of this affidavit, which relate to misconduct, is irrelevant. Plaintiff was not terminated for using drugs or for any other type of misconduct, but was allegedly terminated because of the poor quality of his work. Barnes, who decided to terminate plaintiff, is not alleged to have been involved in the preferential treatment of other employees. Plaintiff fails to show how the circumstances involving other employees who engaged in misconduct are such that they can reasonably be tied to the decision to terminate plaintiff.
Plaintiff's Statement of Facts, Paragraphs 11, 12, and 13
In paragraphs eleven, twelve and thirteen, plaintiff states that Ms. Price was the victim of disability discrimination. In support of this assertion Plaintiff refers to paragraph nine of Ms. Price's affidavit. Ms. Price also discusses this matter in paragraph eight of her affidavit.
The statements made by Ms. Price in paragraphs eight and nine of her affidavit reveal her dislike for USPS, but fail to raise a material question of fact whether plaintiff was the victim of race, age or disability discrimination. According to Ms. Price, she is disabled and was treated unfairly by USPS.
Plaintiff fails to show that he and Ms. Price were similarly situated employees. Ms. Price was a full time regular employee. (Exh. A, Price Dep. R. at 31, 32) Plaintiff was a temporary Casual employee. Ms. Price and plaintiff did not work the same shift or perform similar duties. (Exh A, Price Dep. R. at 78) Ms. Price and plaintiff did not have the same supervisor. (Exh A, Price Dep. R. at 78, 84). Their careers with USPS did not end for the same reasons or under similar circumstances. Ms. Price does not attribute her problems with USPS to Mr. Barnes, the person responsible for terminating plaintiff. Accordingly, this testimony is insufficient to raise a material question of fact.
In paragraph nine of her affidavit Ms. Price states that USPS implemented policies designed to reduce workers compensation claims by unfairly "scrutinizing" the work of anyone making a workers compensation claim. This testimony is irrelevant. Plaintiff was not injured on the job, and did not file a claim for workers compensation benefits. No one knew plaintiff claimed to have a disability until after his termination.
Plaintiff's Statement of Facts, Paragraph 14
In paragraph fourteen of his response plaintiff states that Ms. Price's supervisor was "out to get her." In support of this assertion plaintiff refers to paragraph ten of Ms. Price's affidavit, which so states.
Even assuming this is true, it is irrelevant. As discussed previously, Ms. Price and plaintiff had different supervisors. There is no evidence that Ms. Price and plaintiff were similarly situated employees. Nor has plaintiff shown that the fact Ms. Price's supervisor was "out to get her" has some logical connection to his own termination.
In paragraph eleven of her affidavit, Ms. Price complains she was improperly denied workers compensation benefits, but does not show the relevance of this event. Ms. Price also makes a conclusory allegation that USPS would not hire casual employees with disabilities. However, Ms. Price does not support this opinion with specific facts or examples of such actions.
Analysis
The only evidence presented by plaintiff is an affidavit signed by Ms. Price, who admits having almost no first-hand knowledge of plaintiff's work performance. Ms. Price acknowledges that she did not work the same shift as the plaintiff and only saw him "occasionally" when he was starting his shift. Ms. Price testified during her deposition that she did not work the same shift plaintiff worked, she did not know what Plaintiff's job duties included, she saw him, from a distance, less than ten times, for only a few moments at a time, she spoke to him only once or twice, she was not aware of his claimed disability, and she never observed any conduct on the part of defendant indicating discrimination against plaintiff on the basis of age, race, or disability.
For the reasons set forth in detail above, the court finds Ms. Price's affidavit to be conclusory, lacking in any basis of knowledge, and largely irrelevant, as it fails to link the events contained in the affidavit to plaintiff's termination. Even assuming, however, that Ms. Price's affidavit is admissible, summary judgment is warranted for the reasons set forth below.
Age Discrimination
Under the ADEA, it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).
To prevail on an ADEA claim a plaintiff must establish that age was a determining factor in the employer's challenged decision. The plaintiff need not prove that age was the sole reason for the employer's acts, but must show that age made the difference in the employer's decision.Perry v. St. Joseph Regional Medical Center, 2004 WL 1903507, *1 (10th Cir. 2004).
An ADEA plaintiff may proceed by either of two general methods to carry the burden of making his case: by direct evidence that age was a determining factor in his discharge, or by an inferential proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). Plaintiff presents no direct evidence.
The elements of a prima facie case made by inferential proof have recently been stated as follows:
Under the McDonnell Douglas framework, plaintiff has the initial burden of establishing a prima facie case of discrimination, which requires her to show that she is a member of the class protected by the statute; that she suffered an adverse employment action; that she was qualified for the position at issue; and that she was treated less favorably than others not in the protected class or that the adverse action occurred under circumstances giving rise to an inference of discrimination. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002); Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998). If she establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. See Sanchez, 164 F.3d at 531. If defendant offers a legitimate, nondiscriminatory reason for its actions, the burden reverts to plaintiff to show that defendant's proffered reason was a pretext for discrimination. See id.Owens v. Sprint/United Management Co., 333 F. Supp. 2d 1094, 2004 WL 1878810, *4 (D. Kan. 2004).
In support of his age discrimination claim, plaintiff relies upon the fact he was the oldest person working at the mail facility. Plaintiff has failed to show that most workers were substantially younger than he, but even had he done so, the mere fact that he was older than others and worked at USPS fails to support an inference of age discrimination. See Conto v. Concord Hosp., Inc., 2000 WL 1513798, *7 (D.N.H. 2000) (granting summary judgment on age discrimination claim because "[plaintiff's] claim that she was the oldest full time security guard . . . at the time she was fired does not support an inference of discriminatory animus.")
Plaintiff furthers complains that when Barnes graded his monthly efficiency exams, the grade was lower than when other supervisors graded them. Plaintiff attributes this to the terminology Barnes chose to use, e.g., marking plaintiff's exam as "sufficient," instead of "satisfactory," but fails to link such grading practices or terminology to plaintiff's age.
Plaintiff further contends that age-related comments were directed to him on occasion by co-workers, who jokingly called him "old man Johnson," or said, "Hope I can do what you're doing when I get your age." Dk. 69, Plaintiff's depo. p 143-144. But plaintiff fails to show the requisite nexus between the comments made by his co-workers, and supervisor Barnes's decision to terminate him.
Isolated remarks, unrelated to the disputed employment action, are insufficient to demonstrate discriminatory animus. Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994); Cone v. Longmont United Hospital Assoc., 14 F.3d 526, 531 (10th Cir. 1994). Rather, a plaintiff must demonstrate that there is a nexus between the alleged discriminatory comments, and the disputed employment decision. Rea, 29 F.3d at 1457Stover v. Martinez, 382 F.3d 1064, 2004 WL 1922267, *10 (10th Cir. 2004). Here, the persons who allegedly made the ageist comments are not alleged to have participated in the adverse employment decision. "[A]ge-related comments by non-decisionmakers are not material in showing the [employer's] action was based on age discrimination." Cone, 14 F.3d at 531. Barnes, the sole decisionmaker, is not alleged to have made any ageist comments.
Plaintiff additionally offers the testimony of Ms. Price to establish a "policy" of age discrimination. Ms. Price opines such a policy exists in part because unidentified supervisors "told her" so, but she admits that she never saw any conduct toward plaintiff that would indicate he was the victim of age discrimination.
Ms. Price identifies two individuals other than plaintiff she believes were discriminated against based upon their ages, but fails to describe what the discriminatory action was or who took the discriminatory action. Thus there is no evidence that either of these two individuals was similarly situated to plaintiff, or that the person who inflicted the alleged discrimination influenced plaintiff's termination in any way.
The court recognizes that in the context of employee discharge cases such as this which require proof of discriminatory intent, testimony about treatment of other employees is sometimes relevant. See Coletti v. Cudd Pressure Control, 165 F.3d 767, 776-777 (10th Cir. 1999)
In order for the court to find such character testimony relevant, however, the plaintiff must show the circumstances involving the other employees are such that their statements can "logically or reasonably be tied to the decision to terminate [the plaintiff]." Curtis, 147 F.3d at 1217 (internal quotation marks and citations omitted); see Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988) (holding the trial court committed reversible error by admitting testimony of two former employees of defendant company because no evidence tied the testimony to defendant's decision to terminate).Coletti, 165 F.3d at 777. Plaintiff fails to show that the circumstances involving the alleged age-based harassment of Bob Willis or George Hammil's could somehow be tied to the decision to terminate plaintiff. Accordingly, no material question of fact has been shown.
The court wishes to address defendant's contention that it is illogical to allege that Barnes discriminated against plaintiff based upon his age because plaintiff was terminated less than one year after he was hired. Defendant asserts that since plaintiff was hired when he was age 62, he would not likely be fired shortly thereafter because of his age, still 62. The court recognizes that "when `the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring,' there is a strong inference that discrimination was not a motivating factor in the employment action taken." McKinsey v. Sentry Ins., 1992 WL 101686, at *4 (D. Kan. Apr.23, 1992) (quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)), aff'd, 986 F.2d 401 (10th Cir. 1993). This inference is inapplicable to this case, however, given the lack of evidence that Barnes, who terminated plaintiff, was also the person who hired him.
Nonetheless, plaintiff fails to make a prima facie case of age discrimination, as he has not shown that he was treated less favorably than others not in the protected class or that the adverse action occurred under circumstances giving rise to an inference of discrimination.
Race Discrimination
Plaintiff, as a member of the racial majority, brings a reverse discrimination claim. Typically, a plaintiff relying on McDonnell Douglas bears the initial burden of establishing a prima facie case of wrongful termination by showing that: (1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge. See Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999).
Where, as here, a plaintiff belongs to "an historically favored group," the prima facie case is adjusted for the specific context of reverse discrimination. Sanchez v. Philip Morris Inc., 992 F.2d 244, 248 (10th Cir. 1993). In a reverse discrimination case, a non-minority plaintiff "does not necessarily deserve the presumption of discrimination afforded to a member of an ostensibly disfavored minority class." Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995). Instead of showing membership in a protected class, plaintiff must "establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority." Notari v. Denver Water Dep't, 971 F.2d 585, 589 (10th Cir. 1992).
With regard to his claim of race discrimination, plaintiff's only witness testified that she did not observe any conduct indicating plaintiff was being discriminated against on the basis of his race. (Exh. A, Price Dep. R. at 90). Instead, plaintiff's theory is that defendant has a pattern and practice of discriminating against white employees. The only evidence of this practice is Ms. Price's testimony that African American employees were not properly disciplined for misconduct including drug use and stealing. This testimony is immaterial, as plaintiff was not terminated for job misconduct, and no link to plaintiff's termination has been shown.
Ms. Price's affidavit fails to establish that she was in a position to know the extent to which employees other than herself were disciplined for misconduct. Her testimony about misconduct and discipline, absent any demonstrated basis of knowledge, is insufficient to meet plaintiff's burden. See Salguero v. City Of Clovis, 366 F.3d 1168, 1177 (10th Cir. 2004) (where assertions in affidavit are not supported in the record nor does affidavit demonstrate any personal knowledge or corroborating evidence, it is insufficient to create a genuine question of material fact).
Nor does Ms. Price's testimony establish that those persons treated preferentially were similarly situated to plaintiff. Similarly situated employees, for the purposes of demonstrating employment discrimination, are those employees who deal with the same supervisor and are subject to the same standards governing performance, evaluation and discipline as the employee asserting the claim. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). Employees who were allegedly disciplined less harshly for similar misconduct by a supervisor other than the supervisor responsible for the adverse employment action do not qualify as "similarly situated employees" under the ADEA and Title VII. Rivera v. City and County of Denver, 365 F.3d 912, 922 (10th Cir. 2004). This evidence provides no basis for an inference that defendant discriminates against whites.
Because plaintiff fails to show facts arguably supporting an inference that the defendant is one of those unusual employers who discriminates against the majority, no prima facie case of race discrimination has been made.
Rehabilitation Act
To establish a prima facie case of employment discrimination under the Rehabilitation Act, a plaintiff must show four elements: (1) that the plaintiff is disabled under the Act; (2) that he would be "otherwise qualified" to participate in the program; (3) that the program receives federal financial assistance (or is a federal agency); and (4) that the program has discriminated against the plaintiff. McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004).
Under the relevant definition, "disability" means any of the following:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2); see also 29 C.F.R. § 1614.203(b).
The facts, viewed in the light most favorable to plaintiff, establish that he has some kind of learning disability. But use of this label alone is insufficient to show that plaintiff is disabled, within the meaning of the Act.
To be substantially limited in a major life activity, "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 151 L. Ed. 2d 615 (2002).McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004). Plaintiff's testimony about the level of activities that he does participate in, coupled with the absence of testimony about any substantial limitation of a major life activity, compel the conclusion that plaintiff has not met his burden to show that he is disabled, within the meaning of that term as included in the Rehabilitation Act, as amended to include the standards applied under Title I of the Americans with Disabilities Act. 29 U.S.C. § 794(d). See McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004).
Plaintiff attempts to make a prima facie case by showing that USPS has a "policy" of discrimination against other persons with disabilities. Assuming, arguendo, that such a policy existed, there is no evidence that the person responsible for the adverse employment action against plaintiff was aware of plaintiff's claimed disability before taking the adverse employment action. Barnes's testimony that he was not aware of plaintiff's claimed disability until after he told plaintiff that he was being terminated is undisputed. (Memorandum in Support of Motion for Summary Judgment, Exh. 6, Barnes Aff.) Plaintiff's only witness, Ms. Price, did not refute this evidence, but instead testified that plaintiff's claimed disability was not apparent to her either. (Exh. A, Price Dep. R. at 86). Plaintiff's failure to present evidence that any decisionmaker had knowledge of plaintiff's disability is fatal to his Rehabilitation Act claim. See Whitney v. Board of Educ. of Grand County, 292 F.3d 1280, 1285 (10th Cir. 2002); Brown v. Principi, 326 F. Supp. 2d 1193, 1198 (D. Kan. 2004).
Plaintiff has failed to make a prima facie case of age, race, or disability discrimination. But even had plaintiff met its burden to show a prima facie case, defendant has met its light burden to articulate a legitimate business reason for plaintiff's termination by stating that plaintiff was unable to perform the duties of the position for which he was hired, plaintiff received three to four times the training any other casual or career mail handler received but was still unable to work without supervision, and continuously needed assistance in remembering how to complete his job assignments. Because plaintiff has not shown this stated reason to be pretextual, summary judgment is warranted.
IT IS THEREFORE ORDERED that plaintiff's motion for recusal/stay/transfer (Dk. 76) is denied, that defendant's motion for summary judgment (Dk. 68) is granted.
IT IS FURTHER ORDERED that defendant's motion to strike plaintiff's notice of witness harassment (Dk. 70) is denied as moot.