Degourville v. Andrews Int'l

• Decision Date: 06 August 2014
• Docket Number: Civil Action No. 12-cv-01784-LTB-CBS
• Parties: ANTHONY E. DEGOURVILLE, Plaintiff, v. ANDREWS INTERNATIONAL, TOM DAHL, ROBERT WIBBEN, TOM PARRISH, and MARLA GIBSON, Defendants.
• Court: U.S. District Court — District of Colorado

ANTHONY E. DEGOURVILLE, Plaintiff, v. ANDREWS INTERNATIONAL, TOM DAHL, ROBERT WIBBEN,TOM PARRISH, and MARLA GIBSON, Defendants.

Civil Action No. 12-cv-01784-LTB-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 6, 2014

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on Defendant Andrews International's Motion for Summary Judgment. Pursuant to the Order of Reference dated February 12, 2013 (Doc. # 22) and the memorandum dated January 28, 2014 (Doc. # 65), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, Mr. DeGourville's "Motion the Court for Pre-Trial") (treated as his Response) (See Docs. # 67, # 69), the Reply (Doc. # 70), the exhibits, the entire case file, the hearings held on May 28, 2013 and April 16, 2014, and the applicable law and is sufficiently advised in the premises.

I. Standard of Review

Defendant Andrews International ("Andrews") seeks summary judgment on the Amended Complaint under Fed. R. Civ. P. 56(c). "Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant need only point to an absence of evidence to support the non-movant's claim. Celotex, 477 U.S. at 325. If the moving party meets this burden, the non-moving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Immaterial factual disputes and evidence that is not significantly probative will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F. Supp.2d 1246, 1252 (D. Colo. 1998).

Because Mr. DeGourville is proceeding pro se, the court construes his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant, including . . . summary judgment proceedings." Hall, 935 F.2d at 1110 n. 3 (citations omitted). However, "the generous construction" that is afforded pro se pleadings has limits, and the court "must avoid becoming the plaintiff's advocate." Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012) (citation omitted).

II. Statement of the Case

Mr. DeGourville was born in Port of Spain, Trinidad in 1950. (See Deposition of AnthonyDeGourville, Exhibit 2 to Motion (Doc. # 64-6 at 3-4 of 59)). On or about March 10, 2011, Mr. DeGourville began his employment with Andrews as a part-time patrol officer at the Oracle facility located in Broomfield, Colorado. (See id. at 5, 9, 27-28 of 59). Andrews is an international company, specializing in providing uniformed security services, consulting and investigation services, executive protection, meeting and event security, specialized training, and disaster and emergency response to business clients. (See Declaration of Robert Wibben, Exhibit 1 to Motion (Doc. # 64-1) at ¶ 2). Mr. DeGourville worked the graveyard shift at the Oracle facility, which typically began between 10:30 p.m. and 11:00 p.m. and ended at approximately 7:00 a.m. (See Doc. # 64-6 at 13-14 of 59). As a patrol officer at the Oracle facility, Mr. DeGourville's job responsibilities included: ensuring the environment was safe for Oracle's employees by patrolling the facility on foot, checking critical buttons with an electronic stick in sensitive areas to indicate that he had visited the area, noting particular locations he had visited on daily logs, and communicating via radio with dispatch to respond to situations, escort janitors through sensitive areas, or check certain areas in the facility. (See Doc. # 64-6 at 8, 10-15, Doc. # 64-7 at 10-11 of 62).

Mr. DeGourville commenced this civil action on or about July 10, 2012 in his pro se capacity. He claims that Andrews discriminated against him based on his race, color, and national origin, created a hostile work environment on the basis of his protected categories, and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and violated the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA").¹ (See Amended Complaint (Docs. # 8 and # 6)).²

III. Analysis

A. Plaintiff's Title VII Discrimination Claims Based on Race, Color, and National Origin

Mr. DeGourville alleges that he was discriminated against based on his race, color, and national origin. More specifically, he alleges that: (a) two white males were "promoted" into dispatch ahead of him; (b) other employees received more hours; (c) he was not given the opportunity to work full-time; (d) he was denied training opportunities; and (e) he was laid off in June 2011. (See Doc. # 64-7 at 46-52, 55 of 62; Doc. # 64-14 at Nos. 4-5, 7-9).

Under Title VII of the Civil Rights Act of 1964, as amended, it is unlawful for an employer ". . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As Mr. DeGourville does not present any direct evidence of discrimination, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to his claims of race, color, and national origin discrimination. See Adamson v. Multi Community Diversified Services, Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) ("Where a plaintiff relies on circumstantial evidence, the Supreme Court has established a three-step burden-shifting framework for determining whether a plaintiff's evidence raises an inference of invidious discriminatory intent sufficient to survive summary judgment"). Under the McDonnell Douglas analysis, "the plaintiff bears the initial burden of presenting a prima facie case of discrimination." Jackson v. City and County of Denver, 628 F. Supp. 2d 1275, 1284 (D. Colo. 2008). "If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason" for its employment decision. Id. at 1284-85 (internal quotation marks omitted). If the defendant employer "presents such a reason,the plaintiff bears the ultimate burden of showing that these proffered reasons are a pretext for unlawful discrimination." Id. at 1285.

1. Denial of Promotion

Mr. DeGourville alleges that Andrews failed to promote him to the position of dispatch officer because of his race, color, and national origin. (See Doc # 64-7 at 48 of 62; Doc. # 64-14 at No. 4).³

Under the familiar three-step allocation of burdens of proof mandated by McDonnell Douglas, a plaintiff alleging a failure-to-promote claim must initially establish a prima facie case, demonstrating that: (1) she was a member of a protected class; (2) she applied for and was qualified for the position; (3) despite being qualified she was rejected; and (4) after she was rejected, the position was filled. If the plaintiff carries her burden of establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment action. This shifts the burden back to the plaintiff to proffer evidence that the employer's reason is pretextual.

Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003) (citations omitted). See also Garcia v. Pueblo Country Club, 299 F.3d 1233, 1238 (10th Cir. 2002) (same). It is undisputed that Mr. DeGourville belongs to a protected class.

Mr. DeGourville claims that Mr. Wibben promoted two younger, white officers with less experience, Officers Van Maldegham and Anguelov, to dispatch over him. (See Doc. # 64-7 at 16-17, 43 of 62; Doc. # 64-14 at No. 15).⁴ He alleges that in early June 2011, he told Mr. Wibben that he was interested in working in the dispatch area. (See Doc. # 64-1 at ¶ 17). Mr. Wibben explained to Mr. DeGourville that working in the dispatch area was not considered a promotion because it is a different position than the patrol officer position. (See id.). Mr. DeGourvilleacknowledges that working in the dispatch area required different responsibilities, training, and equipment than that of a patrol officer, including a prescreening test on a system known as Criticall, and that he was not familiar with those responsibilities or training requirements. (See Doc. # 64-6 at 16-17, 20-21 of 59). Mr. DeGourville understood that he was hired as a patrol officer, not a dispatch officer. (See Doc. # 64-7 at 43-44 of 62). Mr. DeGourville concedes that he never submitted an application to work in the dispatch area and that he merely told Mr. Wibben that he was interested in working in the dispatch area at some point in time. (See Doc # 64-7 at 60 of 62). Mr. DeGourville has no knowledge as to whether certain applicants were hired directly into dispatch versus moving to dispatch from a patrol officer position. (See id. at 45 of 62). The evidence, undisputed by Mr. DeGourville, shows that Officer Van Maldegham was hired to be a dispatch officer, not a...