RAYMOND P. MOORE, District Judge.
Plaintiff Eric Wolff, a male, alleges his termination was the product of reverse sex discrimination and of retaliation for reporting reverse sex discrimination. This matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 87) and Defendant's Motion to Strike (ECF No. 112) three declarations submitted by Mr. Wolff in opposition to the Motion for Summary Judgment. The motions are fully briefed. Upon consideration of the motions, the relevant parts of the court record, and the applicable legal authorities, and being otherwise fully advised, the Court finds and orders as follows.
Mr. Wolff was hired by Defendant United Airlines, Inc. on June 5, 2000. During the relevant time period, he was employed by United as an Airport Operations/Customer Service Supervisor ("Customer Service Supervisor" or "CSS") at Denver International Airport ("DIA"). As an employee in a management position, Mr. Wolff was held to a higher standard of performance than a non-management/frontline employee. United's policy expected employees to report to work as scheduled and on time; when supervisors are absent, arrive late or leave early, another supervisor has to cover for them. Mr. Wolff undisputedly arrived at work late or left early. Mr. Wolff, however, claims he had permission to do so because of his child-care needs and that he could make up lost time by skipping lunch. United contends otherwise. These problems apparently began in 2016.
In Mr. Wolff's 2016 Mid-Year Performance Review (1/1/16-6/30/16), Sean Huster, Mr. Wolff's manager, wrote that "[a]nother area which will require your focus is your dependability and reliability. It is the expectation that you arrive to work on time and when scheduled. . . ." (ECF No. 87-17, p. 7.
On the day that Mr. Wolff received his Termination Warning Letter, July 26, 2016, he filed a complaint with United's Ethics & Compliance Office. He complained of unfair treatment, an extramarital affair by Mr. Huster,
In the Fall of 2016, Mr. Huster placed Mr. Wolff on a 90-day Performance Improvement Plan ("PIP") for the following stated reasons: (1) his unprofessional and undignified communication with fellow employees; and (2) his repeated inability to arrive to work on time/as scheduled.
Mr. Wolff's 2016 Year End Performance Review also stated he had attendance issues: "You struggled in holding to the expectations of being punctual which caused concerns in your ability to build a cohesive unit with your peers. In UROC, fostering trust was elusive as you struggled leading your team because of an inability to remain empathetic to those around you." (SUMF at ¶ 17.)
On April 11, 2017, Mr. Huster sent an email to his supervisees (including Mr. Wolff) stating it was important to make sure that all leaders were available — "that means that we are in our work area, radio on, managing the operation and available to respond to all operational calls" — until they have their relief in place. (SUMF at ¶ 7.)
Mr. Wolff continued to arrive late to and leave early from work. In June 2017, when Mr. Wolff was unable to be found when he was scheduled to work, Customer Service Manager Tamera Mitchell pulled the badge swipe reports for Mr. Wolff. The badge swipe reports recorded by the City and County of Denver at DIA, which reflect the time an employee passes through a specific point at the airport, showed that between March 1 and June 7, 2017, Mr. Wolff arrived late for work 12 times and left before the end of his shift 27 times. (SUMF at ¶ 20.) Luke David, then the Director of Customer Service for United at DIA,
On June 14, 2017 two events occurred. First, Customer Service Managers Tamera Mitchell and Jim Ronan suspended Mr. Wolff, took away his badge, and had him escorted off the premises. In United's view, this was the first step in Mr. Wolff's termination process. Next, Mr. Eget sent an email to other United management employees stating that United intended to terminate Mr. Wolff's employment for "time theft." (ECF No. 87-20.)
During the June 14 suspension meeting, Mr. Wolff stated he had an arrangement with or permission from Mr. Huster
Mr. David, the decisionmaker, was apparently informed of Mr. Wolff's contention and followed up with Mr. Huster; he contacted Mr. Huster who stated there was no such arrangement.
Two days later, on June 16, 2017, Mr. Wolff filed a complaint of sex discrimination with United's Ethics & Compliance Office. On June 17, 2017, via email, Mr. Wolff's attorney (John Olsen) advised Mr. David, Ms. Mitchell, and Mr. Ronan that he was conducting an investigation of gender discrimination. On that same day, Mr. David informed Mr. Eget and Steve Jacquith of Mr. Olsen's email.
By email dated June 20, 2017, Mr. Huster submitted a recap to Mr. David which stated that on April 4, 2017 he counseled Mr. Wolff about his repeated late arrivals to and early departures from work. (ECF No. 87-19.) While Mr. Wolff disputes this occurred, it is immaterial to the Court's resolution of this case.
On June 23, 2017, Messrs. David and Eget met with Mr. Wolff at the United concourse and informed him of his termination. Mr. Wolff recorded that conversation.
Mr. Wolff's lawsuit followed. During his deposition, Mr. Wolff testified that he could not recall on which dates between January-June 2017 he had permission to come in late or leave early or which manager gave him permission to do so. He also identified at least 10 other women he alleges arrived late or came in early. (OSUMF at ¶ 39.) However, as to such women, he testified that they were all on different teams. Further, he could not recall their direct bosses (managers), whether any shared his supervisor, or how many times they were late. He recalled that "some left early," and did not know what disciplined any of them were on at any time at United, whether any were ever on a termination warning, or whether any were put on a PIP for attendance or dependability. He also did not know if any of them had permission to arrive late or leave early on the occasions he said they did.
After discovery was closed, United filed the Motion for Summary Judgment at issue. United's Motion to Strike followed, filed to challenge certain matters in Mr. Wolff's response to the Motion for Summary Judgment.
Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party 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, 569-70 (10th Cir. 1994). 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 or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). "The burden of showing that no genuine issue of material fact exists is borne by the moving party.... Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy this burden by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (quotation and citation omitted).
Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). In considering a motion for summary judgment, the court "draws all reasonable inferences in favor of the nonmoving party." Adamson, 514 F.3d at 1145.
"At the summary judgment stage, evidence need not be submitted `in a form that would be admissible at trial.'" Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Thus, for example, the parties may submit deposition transcripts and affidavits as support. Id.; Fed. R. Civ. P. 56(c)(1)(A). The contents or substance of the evidence, however, must be admissible. Thus, for example, courts should disregard hearsay statements contained in affidavits. Id.; Fed. R. Civ. P. 56(c)(4) ("An affidavit ... must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.").
United seeks to strike three Declarations submitted in Mr. Wolff's response brief and certain responses made by Mr. Wolff in response to United's statement of undisputed material facts. The Court starts with the three Declarations.
Mr. Wolff did not disclose such witnesses until after discovery was closed. Thus, Mr. Wolff may not use such Declarations unless the failure to disclose "was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The Court finds Mr. Wolff fails to meet his burden.
Mr. Wolff apparently contends his disclosures were sufficient because the declarants are, or were, United employees and their names were mentioned or appeared in either a discovery response and/or in a deposition. Based on the Court's review of where the declarants' names were mentioned, the Court is not persuaded. Such "disclosures" were not sufficient to put United on notice that the declarants would likely have discoverable information that Mr. Wolff may use to support his claims or defenses, to the prejudice of United. Nor are they sufficient to show the failure to do so was substantially justified or harmless. See Smith v. Aurora Pub. Sch., 318 F.R.D. 429, 432 (D. Colo. 2016) ("It makes no difference that these individuals were APS [defendant's] employees. Until Smith put APS on notice that she might use those employees' testimony in her support, APS could properly presume that Smith had elected otherwise."). Especially since Mr. Wolff's attorney represents two of the declarants and Mr. Wolff worked with them. Both facts negate any argument of good faith.
Mr. Wolff's offer to allow United to interview such declarants or give tape-recorded statements comes too late as discovery had already closed, and trial is now set. Nor has he shown that this would be an adequate substitute for formal discovery. Thus, the Court finds prejudice to United which, at this juncture, is too late to cure.
The Court starts with the state law claims because Mr. Wolff mainly fails to respond to United's arguments concerning these claims apparently based on the mistaken belief the Court had already dismissed all of his claims except for the Title VII sex discrimination and retaliation claims. At the time Mr. Wolff filed his response, United's motion to dismiss was pending but the Magistrate Judge had not yet made a recommended ruling on that motion. Regardless, the Magistrate Judge subsequently recommended dismissal of all state law claims except for the claim for promissory estoppel based on the promise of an internal appeal, which recommendation the Court has accepted over the objections of the parties. Thus, that portion of the state law estoppel claim remains.
United contends that such claim
In order to establish a claim based on promissory estoppel, Mr. Wolff must establish: "(1) the promisor made a promise to the promisee; (2) the promisor should reasonably have expected that the promise would induce action or forbearance by the promise; (3) the promisee in fact reasonably relied on the promise to the promisee's detriment; and (4) the promise must be enforced to prevent injustice." Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008) (citing Nelson v. Elway, 908 P.2d 102, 110 (Colo. 1995) & Restatement (Second) of Contracts § 90 (1981)). "In proving detrimental reliance, the employee must show action or forbearance taken as a result of the employer's alleged promises." Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1466 (10th Cir. 1994) (applying Colorado law).
In this case, Mr. Wolff's promissory estoppel claim which remains is based on United's alleged promise made during his June 23, 2017 termination meeting that he could appeal. (ECF No. 70 at ¶¶ 44-47.) During that meeting, which Mr. Wolff recorded and gave to his lawyer,
To the extent Mr. Wolff relies on the "promise" contained in United's Working Together Guidelines, this too fails.
United argues Mr. Wolff fails to meet his burden of establishing any of the elements for a prima facie case of reverse gender discrimination, starting with the argument that Mr. Wolff has no evidence of gender-based animus against men generally or in Mr. Wolff's case specifically — the first factor. The Court agrees.
Mr. Wolff's response not only cites to the incorrect standard, relying on the traditional standard inapplicable to his reverse discrimination claim, but also makes the conclusory argument that he meets such standards because "he is a man who was terminated even though he was qualified for the job and was treated less favorably than his women counterparts." (ECF No. 101, p. 2.) Mr. Wolff, however, admits he does not know if men were not being treated the same as women at United and "he can't speak for other men" because he does not work with men. But "[i]t is not enough ... for a plaintiff merely to allege that he was a qualified man who was treated differently than a similarly situated woman." Adamson, 514 F.3d at 1150 (citing Notari v. Denver Water Dep't, 971 F.2d 585, 589 (10th Cir. 1992). "Instead, [Mr. Wolff] must allege and produce evidence sufficient to support a reasonable inference that, but for his status as a man, the challenged decision would not have occurred." Id. (emphasis in original). Here, Mr. Wolff fails to do so. Instead, Mr. Wolff merely argues that he is a man, then jumps to the other two prima facie requirements.
A claim of Title VII retaliation may also be demonstrated by direct evidence or under the McDonnell Douglas framework discussed above. Wilkie, 915 F.3d at 1267. The parties apply the McDonnell Douglas framework in their papers. Under this framework, a plaintiff must establish a prima facie case of retaliation; if the plaintiff does so, the burden then shifts to the defendant to provide a legitimate, non-discriminatory rationale for the adverse employment action; if the defendant does so, the plaintiff must then show the defendant's proffered rationale is pretextual. Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016). The Court again starts — and ends — with a prima facie case.
To establish a prima facie case, a plaintiff must show "(1) that [he] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Wilkie, 915 F.3d at 1267 (quotation marks and citation omitted). To prove a causal connection, a plaintiff must "`present evidence of circumstances that justify an inference of retaliatory motive.'" Wilkie, 915 F.3d at 1271 (quoting Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014)). A causal connection may be inferred if the protected conduct is closely followed by the adverse action. Id. at 1271. A gap of three months or more, standing along, is too long to support an inference of causation on its own. Id. at 1271. Instead, a plaintiff must present other evidence to establish causation. Id. at 1271.
Mr. Wolff contends he was terminated on June 23, 2017 in retaliation for complaining about sex discrimination. United argues Mr. Wolff made two complaints and a myriad of vague references to discrimination, none of which supports a prima facie case of retaliation. As to Mr. Wolff's first complaint made July 26, 2016, United contends it is not protected activity and it is too remote to support any causal connection. As to Mr. Wolff's second complaint made June 16, 2017, United contends it decided to terminate Mr. Wolff's employment before he complained. And, as to the myriad of other complaints Mr. Wolff allegedly made, United argues they are too vague to constitute protected activity. Thus, at issue are the first and third requirements. The Court examines the arguments, starting with the June 16, 2017 complaint upon which Mr. Wolff mainly relies.
Specifically, by email dated June 14, 2017, Mr. Eget emailed management of Mr. Wolff's impending termination as follows:
(ECF No. 87-20 (bold added); RSUMF ¶ 24.) Mr. Eget's email cited to Mr. Wolff's work performance history including his most recent October 2016 PIP.
Mr. Wolff's argument that suspension does not mean termination will automatically follow does not show a contrary conclusion should be had. Even if true, in this case, Mr. Wolff's suspension did culminate in his termination based on a decision made before his June 16 complaint. That another employee may not have been terminated after suspension
The July 26, 2016 complaint states the "primary issue" was "retaliation." (ECF No. 102-27, p. 3.) In that complaint, Mr. Wolff raised a litany of matters, including: there was "unfair treatment among Customer Service Supervisors"; "[n]ot all supervisors are held to the same standards of attendance policy"; "questionable relationship between a certain CS Supervisor ... and Area Manage Huster in which preferential treatment is being given"; "[b]eing talked down to ... due to liking one Political Party"; "[b]eing called names because of being bald, along with being made fun of because of my height." (ECF No. 102-27, p. 3.) Mr. Wolf contends the "questionable relationship"
Mr. Wolff's evidence of other alleged general sex discrimination complaints — and that United allegedly knew of them — fares no better. For example, Mr. Wolff refers the Court to his deposition transcript but one of the pages was not provided; thus the Court is left with a conclusory statement that Mr. Wolff complained "every other day" to "management" at United that he was treated less favorably than women. (ECF No. 87-5, 157:18-22.) See Thomas v. U.S. Bureau of Prisons, 282 F. App'x 701, 704 (10th Cir. 2008) ("conclusory and self-serving statements, even if presented in an affidavit, are insufficient to create a genuine issue of fact to survive summary judgment") (citing BancOklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1101 (10th Cir. 1999)). Moreover, although "[p]rotected opposition can range from filing informal charges to voicing informal complaints," Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004), Mr. Wolff fails to identify sufficient evidence to suggest that United interpreted any of such generalized comments as protected opposition to sex discrimination.
Similarly, Mr. Ronan testified that he heard at staff meetings that Mr. Wolff complained "he was treated differently than someone else." (ECF No. 102-5, 21:22-25 to 22:1.) But, being treated differently than someone else — even if a woman — is insufficient to show this was a complaint of sex discrimination or that United was aware of any complaint of sex discrimination, especially where Mr. Wolff was complaining of sexual affiliations. And, Mr. Eget's knowledge of Mr. Wolff's July 26, 2016 complaint is of no moment where it did not complain of sex discrimination.
Finally, Mr. Wolff further testified that he complained in 2016 about females who were consistently late to work and were treated differently.
First, complaints allegedly made in 2016 are too remote in time to establish a causal connection for suspension and termination in June 2017. Second, even assuming any of the above complaints constituted protected activity, Mr. Wolff "must come forward with evidence from which a reasonable factfinder could conclude that those who decided to fire him had knowledge of his protected activity." Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Mr. Wolff argues that Mr. David's belief that Mr. Wolff indicated during the June 14, 2017 suspension meeting he was being "treated unfairly" is sufficient but the Court finds otherwise. Such knowledge, acquired after Mr. Wolff had been suspended, does not equate to knowledge of sex discrimination. And, by then the decision had already been made to terminate Mr. Wolff, as confirmed by the email sent the date of his suspension. Even construing the facts in a light most favorable to Mr. Wolff, a reasonable jury could not conclude that, at the time he decided to fire Mr. Wolff, Mr. David knew Mr. Wolff had complained of sex discrimination. Jones v. U.P.S., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007) ("Unless an employer knows that an employee is engaging in protected activity, it cannot retaliate against that employee because of the protected conduct." (citations omitted)). Accordingly, summary judgment is also granted in favor of United on this claim.
Based on the foregoing, the Court
Mr. Wolff also argues Mr. David's declaration contains hearsay. The Court rejects that argument as Mr. Huster submitted a declaration of what he told Mr. David. (ECF No. 114-3, ¶ 15.)