112 F.3d 1398 (10th Cir. 1997), 96-3032, Aramburu v. Boeing Co.

Docket Nº:96-3032.
Citation:112 F.3d 1398
Party Name:97 CJ C.A.R. 670 Santiago ARAMBURU, Plaintiff-Appellant, v. THE BOEING COMPANY, d/b/a Boeing Commercial Airplane Group, Wichita Division, Boeing Corporation and Larry Whitesell, Defendants-Appellees.
Case Date:May 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1398

112 F.3d 1398 (10th Cir. 1997)

97 CJ C.A.R. 670

Santiago ARAMBURU, Plaintiff-Appellant,

v.

THE BOEING COMPANY, d/b/a Boeing Commercial Airplane Group,

Wichita Division, Boeing Corporation and Larry

Whitesell, Defendants-Appellees.

No. 96-3032.

United States Court of Appeals, Tenth Circuit.

May 5, 1997

Page 1399

[Copyrighted Material Omitted]

Page 1400

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, Kansas, for Plaintiff-Appellant.

Timothy B. Mustaine, Foulston & Siefkin, L.L.P., Wichita, Kansas, for Defendants-Appellees.

Before BALDOCK, KELLY, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Santiago Aramburu appeals the district court's grant of summary judgment on all claims in favor of Defendants The Boeing Company and Larry Whitesell. We have jurisdiction under 28 U.S.C. § 1291. After reviewing the district court's memorandum opinion, the briefs on appeal, and the record provided us, we affirm the grant of

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summary judgment. However, with respect to several claims we affirm using a different analysis from that applied by the district court. 1

Aramburu filed this employment action to recover damages and secure equitable relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Civil Rights Acts of 1866 and 1991, 42 U.S.C. § 1981; and the Kansas Act Against Discrimination, Kan.Stat.Ann. §§ 44-1001 et seq. Aramburu brought claims for (1) discriminatory discharge on the basis of his Mexican-American ancestry, (2) hostile work environment based on his ancestry and his alleged disability from carpal tunnel syndrome, (3) discriminatory denial of a transfer on the basis of his ancestry and carpal tunnel syndrome, and (4) discriminatory discharge on the basis of his carpal tunnel syndrome. 2 Boeing and Whitesell contend that Aramburu was discharged for failure to maintain proper attendance.

I. Background Facts

Boeing employed Aramburu in its plant in Wichita, Kansas, from June 8, 1978, until January 29, 1992, as a grade four sheet metal assembler. During the time relevant to this

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case, Larry Whitesell was Aramburu's supervisor. Aramburu's employment relationship was governed by a collective bargaining agreement between Boeing and the International Association of Machinists and Aerospace Workers, dated November 22, 1989, and the company policies and procedures promulgated in accordance with that agreement. The collective bargaining agreement regulates the accrual and use of vacation and sick leave. Boeing's attendance policy provides for progressive discipline for employees with attendance problems. Supervisors may deny requests for vacation if they believe that permitting vacation time as requested would seriously interfere with production requirements. Written policy requires employees to request in advance permission to take vacation leave. However, the informal practice of shop supervisors was to allow employees to excuse an absence by taking leave after the fact on a discretionary, case-by-case basis.

On January 29, 1992, Aramburu was discharged ostensibly for excessive absenteeism. From the start of his employment, Aramburu had attendance problems. Eight of ten supervisors gave him written reprimands for poor attendance. In February 1988, Boeing and the International Association of Machinists and Aerospace Workers executed a "last chance" letter of understanding. The letter provided that Aramburu would be immediately discharged without recourse if he incurred another unexcused absence. On April 19, 1988, Boeing discharged Aramburu for poor attendance. Despite the no-recourse nature of the last chance agreement, Aramburu filed a grievance. The grievance was settled, and Boeing reinstated him on the condition that he receive treatment for substance abuse. The settlement between Boeing and the union, on behalf of Aramburu, provided that Aramburu would not again be reinstated to the Boeing payroll in a way allowed under the settlement.

In February 1991, Whitesell issued Aramburu a written reprimand for unacceptable attendance. Whitesell issued him another written reprimand on May 16, 1991. Aramburu signed both reprimands. On July 31, 1991, Whitesell again issued Aramburu another written reprimand for poor attendance. The reprimand cited Aramburu for 3 hours of unexcused absence on June 5, 1.9 hours of unexcused absence on June 7, 8 hours on June 8, and 8 hours on June 16. He refused to sign this reprimand, however, arguing that it was unjustified.

In August 1991, Aramburu submitted to Whitesell a written request for 30 hours of vacation time to cover absences incurred while he was serving a sentence for drunk driving. Although the form was not submitted until after the absences, Whitesell approved the leave request as vacation time.

On January 10, 1992, Whitesell issued a proposed termination of Aramburu for poor attendance. The proposed termination cites unexcused absences for the full work day of January 8, 1992, and for partial days on November 19, December 3, and December 19, 1991. It also refers to his unexcused absences incurred in May and June 1991. The proposed termination also recited Aramburu's historical attendance problems and his discharge in 1988. On January 29, 1992, Boeing discharged Aramburu for failure to maintain proper attendance.

II. Standard of Review

We review de novo the grant of summary judgment and apply the same legal standards as the district court under Rule 56. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). "We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury." Williams v. Rice, 983 F.2d 177, 179 (10th Cir.1993). In other words, the nonmoving party must "make a showing sufficient to establish an inference of the existence of each element essential to the case." Bolden v. PRC Inc., 43 F.3d 545, 548 (10th Cir.1994), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995). We may affirm the grant of summary judgment for reasons other than those used by the district

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court as long as they are adequately supported by the record. Id.

III. Claim for Wrongful Discharge on the Basis of Ancestry

Aramburu contends that he was discharged because of his Mexican-American ancestry, while Boeing and Whitesell contend he was discharged for failing to maintain satisfactory attendance. To establish a prima facie case on a claim of discriminatory discharge, where the plaintiff was discharged for the purported violation of a work rule, the plaintiff must show that (1) he is a member of a protected class, (2) that he was discharged for violating a work rule, and (3) that similarly situated non-minority employees were treated differently. EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir.1992).

If the plaintiff establishes a prima facie case, the defendant must articulate, and support with some evidence, a legitimate, nondiscriminatory reason for the discharge. Flasher, 986 F.2d at 1316; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). If the defendant meets this burden, the plaintiff must then present evidence raising a genuine issue that his termination was the result of his ancestry or that the reason offered by Boeing and Whitesell was a mere pretext. See Corneveaux v. Cuna Mutual Ins. Group, 76 F.3d 1498, 1503 (10th Cir.1996); Flasher, 986 F.2d at 1316. At the summary judgment stage, if the plaintiff can show a prima facie case of discrimination and present evidence that the employer's proffered nondiscriminatory reason is a mere pretext, the case should go to the factfinder. Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir.1995). 3

The district court ruled that Aramburu failed to present evidence demonstrating the existence of a genuine issue of material fact regarding the reason proffered by Boeing and Whitesell for his discharge, excessive absenteeism, or that Aramburu was treated differently in regards to attendance because of his ancestry. The district court also ruled that Aramburu failed to show that he was similarly situated to fellow employees whom he contends were differently treated.

A. Prima Facie Case of Discrimination

In this case, we assume without deciding that Aramburu has met the elements of his prima facie case under Flasher. E.g., Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir.1997) (assuming without deciding that ADA plaintiff had met prima facie case requirements); Jones, 54 F.3d at 630 (same).

B. Legitimate, Nondiscriminatory Reason

The record contains evidence that Aramburu was discharged for failing to maintain satisfactory attendance. This reason is legitimate and nondiscriminatory. See Morgan, 108 F.3d at 1324. As Boeing and Whitesell have met their burden to articulate and produce some evidence that Aramburu was discharged for a facially legitimate and nondiscriminatory reason, "the presumption of discrimination established by the prima facie showing simply drops out of the picture." See Jones, 54 F.3d at 630 (internal quotation omitted).

C. Pretext

We turn to the dispositive inquiry on this claim, the requirement that Aramburu present evidence raising a genuine issue that his termination was the result of his ancestry or that the reason offered by Boeing and Whitesell was a mere pretext. See Jones, 54 F.3d at 630; Flasher, 986 F.2d at 1316. In this connection, Aramburu contends that similarly situated...

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