Barlow v. C.R. England, Inc.

• Decision Date: 07 September 2011
• Docket Number: Civil Action No. 09–cv–02476–CMA–MJW.
• Citation: 816 F.Supp.2d 1093
• Parties: Willie BARLOW, Jr., Plaintiff, v. C.R. ENGLAND, INC., Defendant.
• Court: U.S. District Court — District of Colorado

816 F.Supp.2d 1093

Willie BARLOW, Jr., Plaintiff,

v.C.R. ENGLAND, INC., Defendant.

Civil Action No. 09–cv–02476–CMA–MJW.

United States District Court, D. Colorado.

Sept. 7, 2011.

Jennifer C. Robinson, Robinson & Associates Law Offices, LLC, Denver, CO, for Plaintiff.

Andrew David Ringel, Gillian Dale, Hall & Evans, LLC Denver, CO, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND VACATING TRIAL DATES

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on Defendant C.R. England, Inc.'s Motion for Summary Judgment. (Doc. # 55.) For the following reasons, the Motion is granted, the Final Trial Preparation Conference scheduled for September 9, 2011, and the five-day jury trial set to commence on September 26, 2011, are VACATED.

I. PROCEDURAL HISTORY

This action arises from Defendant's termination of Plaintiff Willie Barlow, Jr. from his job as a security guard and Defendant's termination of an oral contractual arrangement with Plaintiff's company, E & W Janitorial, for the provision of janitorial services. On October 14, 2009, Plaintiff, who initiated this action pro se, filed a motion and affidavit for leave to proceed under 28 U.S.C. § 1915. (Doc. # 1.) On October 22, 2009, Plaintiff filed a Title VII Complaint (Doc. # 3), and he amended his Complaint on October 27, 2009 (Doc. # 5). On February 21, 2010, counsel entered her appearance on Plaintiff's behalf (Doc. # 22), and on April 16, 2010, with leave of Court, Plaintiff filed a Second Amended Complaint (“Complaint”) (Doc. # 37). Plaintiff asserts the following five claims of relief: (1) racial discrimination pursuant to 42 U.S.C. § 1981(a) (Claim 1); (2) violation of the Americans with Disabilities Act (Claim 2); (3) wrongful discharge in violation of public policy (Claim 3); (4) race discrimination in violation of Title VII (Claim 4); and (5) violation of the Fair Labor Standards Act (Claim 5).

On February 25, 2011, Defendant filed the instant Motion for Summary Judgment. (Doc. # 55.) Plaintiff responded on April 7, 2011 (Doc. # 68), and Defendant replied on April 18, 2011 (Doc. # 71).

II. FACTUAL BACKGROUND ¹

The site manager for Defendant's maintenance yard, John Smith, hired Plaintiff in February 2005, as a maintenance yard security guard. Mr. Smith served as Plaintiff's supervisor. Plaintiff worked on Friday, Saturday, and Sunday nights from 6:30 p.m. until 6 a.m., at the latest. During his shifts, Plaintiff was the only security guard on duty. A man by the name of Scott Clark covered the remaining night shifts.

As a security guard, Plaintiff's duties included making rounds of the maintenance yard, which comprises an entire city block, to ensure that nothing was amiss on the property and logging the trucks that entered and left the property. Plaintiff was also responsible for reporting anything unusual, including missing company property. A majority of the maintenance yard is secured by a fence with an overhead gate for ingress and egress. In addition to keeping property, supplies, and equipment within the fence's perimeters, Defendant also stored such items on its property outside the fenced area. Further, in April 2008, much of the property that Defendant typically stored in the secured area was kept in the unsecured area because Defendant was in the process of cleaning out one of its storerooms. Amongst these items were two trailer doors, which were left on the ground next to a Dumpster and covered by discarded pallets.

In addition to security services, in February 2007, Plaintiff started to perform maintenance services for Defendant's office building through a company called E & W Janitorial & Maintenance Services (“E & W”) that he formed with his business partner, Ernestine Hudson. In connection with E & W, Plaintiff and Ms. Hudson obtained a cleaning license for E & W, created invoices and a separate bank account for E & W, and filed a separate income tax return for E & W.

On June 6, 2007, Plaintiff was injured while performing security guard duties, when a 300–400 pound automatic gate used to enter Defendant's maintenance yard malfunctioned and hit Plaintiff on his head (the “June 6 Accident”). As a result of the injuries he sustained, Plaintiff claims to suffer from balance problems and disabling pain in his back, neck, head, and jaw, all of which interfere with his ability to work and make it difficult for him to stand, walk, lift, and stoop. As a result of these injuries, Plaintiff's physician imposed a lifting restriction of not more than 25 pounds. Additionally, Plaintiff's injuries made it difficult for him to perform certain tasks such as moving pallets and breaking up crates. However, Plaintiff never asked Defendant for any accommodation for his disability; rather, on occasion, Plaintiff simply asked mechanics for assistance. Additionally, Plaintiff had access to and used a forklift to move pallets and break up crates. Plaintiff did not have difficulty performing any other aspect of his job.

On June 7, 2007, Plaintiff filed a workers' compensation claim in connection with his injuries. Plaintiff continued to obtain workers' compensation for nearly one year, until his employment with Defendant as a security guard was terminated on April 30, 2008. As time passed after the June 6 Accident, Mr. Smith got a general sense that some of Defendant's employees, such as Darlene Niebuhr, the Workers' Compensation Manager, and Len Klimiuk, Mr. Smith's boss, were concerned about possible malingering due to the delay in Plaintiff's recovery from his injuries and Plaintiff's continued receipt of worker's compensation benefits.

In December 2007, Mr. Smith terminated Defendant's contract with E & W Janitorial, due to his concern that (1) Plaintiff was performing janitorial services during his security guard shifts and (2) in performing the janitorial services, Plaintiff was lifting weight that exceeded his twenty-five pound limitation.

During Plaintiff's security guard shift for the weekend beginning April 25, 2007, two trailer doors that had been stored outside Defendant's secured gated area, ten feet away from a Dumpster, went missing. The doors, weighing 300 pounds each and valued at approximately $2,000.00, were located on the ground and attached to wooden pallets with a metal band. Mr. Smith noticed that the doors were missing, upon his arrival at work on the Monday morning following Plaintiff's weekend shift. In an attempt to investigate, Mr. Smith examined video recordings of Defendant's facility from over the weekend. One of the videos captured a truck with two men arriving at Defendant's maintenance yard and approaching the area where the trailer doors were located. Defendant represents that the video captured the trailer doors on the back of the truck. Plaintiff disputes this representation. However, there is no dispute that the trailer doors went missing and that Plaintiff failed to notice the truck's arrival and departure and failed to notice that the trailer doors had disappeared.

On April 30, 2008, Mr. Smith terminated Plaintiff's employment as a security guard, as a result of Plaintiff's failure to notice and report that the trailer doors were stolen from Defendant's property during Plaintiff's shift. Plaintiff disputes the basis for his termination and asserts that he was not responsible for taking an inventory of everything on Defendant's property; Plaintiff maintains that he was terminated under circumstances giving rise to an inference of discrimination. Despite Plaintiff's termination and the incident giving rise thereto, Mr. Smith had favorably evaluated Plaintiff's performance and described him as “honest,” “stable,” and “dependable;” Mr. Smith had never warned Plaintiff about his performance.

In further support of his claim of race discrimination, Plaintiff points to a single instance that occurred in March 2008 where a co-worker, Randy Wimer, told a joke which repeated a Richard Pryor comedy routine and included the use of the word, “nigger” in the presence of Mr. Barlow and others. Plaintiff asserts that, after that joke, he was never again invited to lunch in Mr. Smith's office. The parties disagree as to the reasons why Plaintiff never attended another lunch in Mr. Smith's office. The parties also disagree as to whether Plaintiff was offended by the joke. However, Plaintiff admits that he never complained to the co-worker, Mr. Smith, Defendant's corporate headquarters, or human resources about the joke. Nor did Plaintiff ever mentioned the joke until he filed the filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff also admits that he did not hear any other offensive jokes or use of any racial epithets during his presence while he was employed by Defendant.

III. STANDARD OF REVIEW

The purpose of a summary judgment motion is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Fed.R.Civ.P. 56(c) provides that summary judgment shall be granted if “the pleadings, the discovery and disclosure of materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on...