649 F.3d 1189 (10th Cir. 2011), 10-1298, Crowe v. ADT Sec. Services, Inc.

Docket Nº:10-1298.
Citation:649 F.3d 1189
Opinion Judge:KELLY, Circuit Judge.
Party Name:Wythe S. CROWE, Plaintiff-Appellant, v. ADT SECURITY SERVICES, INC., Defendant-Appellee.
Attorney:Mark Berumen and Gregory Clifton of Berumen Law Firm, P.C., Aurora, CO, for Plaintiff-Appellant. Michael Matula (and Nicholas J. Walker of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., on the brief), Kansas City, MO, for Defendant-Appellee.
Judge Panel:Before KELLY, SEYMOUR, and HOLMES, Circuit Judges.
Case Date:April 25, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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649 F.3d 1189 (10th Cir. 2011)

Wythe S. CROWE, Plaintiff-Appellant,


ADT SECURITY SERVICES, INC., Defendant-Appellee.

No. 10-1298.

United States Court of Appeals, Tenth Circuit.

April 25, 2011

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[Copyrighted Material Omitted]

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Mark Berumen and Gregory Clifton of Berumen Law Firm, P.C., Aurora, CO, for Plaintiff-Appellant.

Michael Matula (and Nicholas J. Walker of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., on the brief), Kansas City, MO, for Defendant-Appellee.

Before KELLY, SEYMOUR, and HOLMES, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Wythe Crowe appeals the district court's grant of summary judgment in favor of Defendant-Appellee ADT Security Services, Inc. (" ADT" ) on his claims for discrimination and retaliation in violation of Title VII and 42 U.S.C. § 1981. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


Because this matter was resolved on summary judgment, we view the facts and inferences in favor of the nonmoving party. Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1184 (10th Cir.2010) (citation omitted). In this case, the undisputed facts are as follows.1

Mr. Crowe, who is African-American, worked for ADT as a technician providing

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telephone support to customers and dealers from July 1997 to July 27, 2007. Aplee. Supp.App. (" ASA" ) 39, 51, 149. On December 1, 2006, an ADT employee, Olivia Nguyen, complained to her manager that Mr. Crowe made her feel uncomfortable " because everytime I walk by he stares at me inappropriately ... at my bottom & makes it really obvious." Id. at 39, 69. The employee wrote a statement to that effect, and a manager, Mr. Hollowell, corroborated her statement with his own. Id. at 39-40. Mr. Hollowell provided both statements to his supervisor, Heather England. Id. at 40. Ms. England, in turn, reported the complaint to a human resources agent, Mr. Easterling, who spoke to the complainant and two witnesses. Id. He concluded that the complaint was well-founded. Id. Mr. Crowe does not dispute that Ms. Nguyen told her manager that Mr. Crowe was sexually harassing her, but disputes the underlying conduct. Id. at 243-46.

Some time in early December— the exact date is disputed, see id. at 254— Mr. Crowe and three other employees met with a manager, Mike Hanley, to discuss concerns about the lack of African-Americans in management and the perception that African-Americans had been passed over for promotions. Id. at 52. ADT investigated the complaints and found that (1) none of the African-American employees ranked as high as those eventually selected for the promotions, and (2) race was not a factor in the promotions. Id.

On January 3, 2007, Mr. Easterling received a complaint from one of Mr. Crowe's supervisors that Mr. Crowe had not responded promptly and professionally to her request that he remove his hat to comply with ADT's dress code. Id. at 41. Again, Mr. Crowe disputes the occurrence, but does not dispute that ADT received a complaint. Id. at 246-47.

On January 5, 2007, Mr. Easterling drafted a final written warning predicated on the complaints of sexual harassment and unprofessional behavior. Id. at 41, 79-81. The final written warning provided that Mr. Crowe would be terminated upon the occurrence of other instances of harassment, unprofessional behavior, or insubordination. Id. at 79-80. Mr. Easterling and Jim Mooney, the supervisor of the facility, presented the final written warning to Mr. Crowe on January 30, 2007. Id. at 41-42. Mr. Crowe refused to sign the warning, and the next day he presented Mr. Easterling with a written response in which he denied the allegations. Id. at 43. In his response, Mr. Crowe acknowledged that he had previously been accused of harassment and insubordination, but that the accusations were made by " scandalous and treacherous women accusing [male employees of ADT] of sexual harassment" and thus should not be believed. Id. at 83 (emphasis in original).

In May 2007, more complaints about Mr. Crowe's behavior surfaced. One of Mr. Crowe's supervisors, Elaine Trujillo, briefly interrupted Mr. Crowe while he was on the phone with a technician. Id. at 44. Mr. Crowe became upset. Some time later, Ms. Trujillo approached Mr. Crowe to offer assistance with a call, but Mr. Crowe waved her off, indicating that he wanted to deal with another supervisor, Mr. Greer. Id. at 44, 248. Ms. Trujillo described these encounters in a letter written to Mr. Crowe's team manager. Id. at 44. Finally, in mid-May, an ADT employee who sat next to Mr. Crowe requested to be relocated because Mr. Crowe created a negative work environment by repeatedly criticizing his female supervisors and calling a particular supervisor, Ms. England, a racist. Id. at 45. Mr. Crowe disputes these occurrences, but does not dispute that complaints were filed. Id. at 248.

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After these incidents, Mr. Mooney tasked a human resources representative, Ms. Laurila, with resolving the situation as he was tired of Mr. Crowe's conduct. Id. at 46. At that time, Ms. Laurila was unaware of Mr. Crowe's personnel history. Id. Her investigation revealed numerous complaints of inappropriate behavior, most notably sexual harassment and insubordination, as well as multiple final written warnings. Id. at 46-47. Despite the number of incidents, Ms. Laurila thought that there was insufficient documentation to immediately terminate Mr. Crowe. Id. at 49. Ms. Laurila conducted several interviews with managers about the incidents, and afterwards determined that Mr. Crowe should be terminated. Id. Again, Mr. Crowe does not dispute the contents of his personnel file, but disputes that the incidents occurred as documented. Id. at 250.

On July 25, 2007, Ms. Laurila provided to Ms. Stanfield, the director of human resources, a written report summarizing the results of her investigation and recommending that Mr. Crowe be terminated. Id. at 50-51. In the report, Ms. Laurila contended that ADT had " truly exhausted all efforts to maintain his employ." Id. at 219. She also expressed concern that, should Mr. Crowe not be terminated, ADT could be subject to lawsuits:

[W]hy have we allowed Wythe to treat management and specifically, women in positions of power, with such disrespect? Why did ADT continue to try to appease this person and not support or protect our management team from this type of harassing and disrespectful abuse? This behavior is against the law at any company in this country. Why do we allow it here at ADT? If Heather England took this case to the EEOC or to court, ADT could lose because we were not there to protect all employees from a hostile work environment that is free from harassment.


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