Wythe S. Crowe v. Adt Sec. Serv. Inc.

• Decision Date: 25 April 2011
• Docket Number: No. 10–1298.,10–1298.
• Parties: Wythe S. CROWE, Plaintiff–Appellant,v.ADT SECURITY SERVICES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

649 F.3d 1189

112 Fair Empl.Prac.Cas. (BNA) 1

94 Empl. Prac. Dec. P 44,154

Wythe S. CROWE, Plaintiff–Appellant,

v.ADT SECURITY SERVICES, INC., Defendant–Appellee.

No. 10–1298.

United States Court of Appeals, Tenth Circuit.

April 25, 2011.

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.

Background

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 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.

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.

....

The ramifications of not terminating Wythe Crowe could be huge! Think about this: What if a white male exhibits the same harassing, insubordinate, discriminatory, and disrespectful behavior as Wythe has done over the years. If we decide to fire this person, we have now set ourselves up for a reverse discrimination lawsuit. For that matter, since we have allowed Wythe to exhibit this type of behavior for many years, it does not matter whether the next person is white, yellow, or pink, we are setting ourselves up for a potential lawsuit due to the precedent we have set by allowing Wythe Crowe to continue his employment at ADT.

Id.

Ms. Laurila's report and recommendation listed twenty-three disciplinary incidents dating back to 1999 and described in detail nine of the incidents, including five separate complaints of sexual harassment. See id. at 217. After receiving the report and recommendation, Ms. Stanfield and Mr. Easterling received approval to terminate Mr. Crowe. Id. at 51. They did so on July 27, 2007. Id. at 51, 149.

Following these events, Mr. Crowe filed suit, alleging that he was terminated on the basis of his race or in retaliation for complaining about the lack of African–Americans in management, all in violation of Title VII and 42 U.S.C. § 1981. See Doc. 1. ADT moved for summary judgment. See ASA 38. Mr. Crowe filed a motion in opposition, which disputed ADT's listed facts to the extent noted above. See id. at 242. The district court granted summary judgment to ADT on the ground that Mr. Crowe failed to make a prima facie case of both discrimination and retaliation, and that he failed to raise a genuine dispute of material fact as to whether ADT's proffered non-discriminatory and non-retaliatory rationales for terminating Mr. Crowe were pretextual. See Crowe v. ADT Sec. Servs., Inc., No. 09–cv–00016–PAB–CBS, 2010 WL 2650451 (D.Colo. June 30, 2010). Mr. Crowe timely appealed. See Doc. 67.

On appeal, Mr. Crowe argues that he established a prima facie case on both his discrimination and retaliation claims, and that there exist genuine disputes of material fact that ADT's proffered reason for his termination were pretextual. Aplt. Br. 10.

Discussion

We review the district court's grant of summary judgment de novo, applying the same standard as the district court. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). Summary judgment is appropriate “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). A dispute is genuine “if there is sufficient evidence so that a rational trier of fact could resolve the issue either way.” Adler, 144 F.3d at 670 (citation omitted). A fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Id. (citation omitted).

A plaintiff may prove violation of Title VII or 42 U.S.C. § 1981—the standards are the same, see Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n. 3 (10th Cir.1997) (citations omitted)—either by direct evidence of discrimination, cf. Fischer v. Forestwood Co., 525 F.3d 972, 983 (10th Cir.2008), or by adhering to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

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