Jaxon v. Circle K Corp., 84-2775

Decision Date04 October 1985
Docket NumberNo. 84-2775,84-2775
Citation773 F.2d 1138
Parties39 Fair Empl.Prac.Cas. 1260, 38 Empl. Prac. Dec. P 35,708 Gilbert JAXON, and on behalf of all other persons similarly situated, Plaintiff-Appellant, v. CIRCLE K CORPORATION, James S. Coolige, Robert G. Campau, Daniel Gomez, Clyde Petty, Joe Wilson, Kenneth Moffett, EEOC District Director, Albuquerque, New Mexico, EEOC Area Director, Phoenix, Arizona, and EEOC Specialist Ralph Garcia, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on briefs pursuant to Tenth Circuit Rule 9: Gilbert Jaxon, pro se.

Before LOGAN, SEYMOUR, and MOORE, Circuit Judges.

SEYMOUR, Circuit Judge.

Gilbert Jaxon, a black man, filed this civil rights suit pro se against the Circle K Corporation, several of its employees, and the EEOC. He asserted claims under 42 U.S.C. Secs. 1981, 1985(3), and 2000e et seq. (1982) arising from his employment with defendant Circle K and from the EEOC's handling of his Title VII charges. The district court dismissed the EEOC defendants, denied plaintiff's motion to certify a class, and granted summary judgment for remaining defendants on all claims. We affirm in part and reverse in part.

In reviewing the grant of a summary judgment motion, the court of appeals must view the record most favorably to the nonmoving party. Clark v. Atchison, Topeka & Santa Fe Railway Co., 731 F.2d 698, 700 (10th Cir.1984); Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1377 (10th Cir.1980). Where different inferences may be drawn from the evidence, summary judgment is inappropriate. Luckett, 618 F.2d at 1377; Exnicious v. United States, 563 F.2d 418, 423-24 (10th Cir.1977).

Viewed in this light, the record reveals that Jaxon was originally discharged from his position as a clerk at Circle K after a dispute with a white co-worker, who was not terminated. Jaxon filed a discrimination complaint with the EEOC. Following his discharge, Jaxon was unable to find another job despite what he believed to be good employment interviews. Suspecting that he was getting bad references from Circle K, Jaxon had a friend, John Vlahos, call and ask for an employment reference from Jaxon's former supervisor, Daniel Gomez. Gomez told Vlahos that "Jaxon gave him a hard time, that his references were no good, he never worked at the places he had put down as references, he goes from place to place causing trouble, suing different companies." Rec., vol. V, Vlahos dep. at 34-35. Jaxon then filed a second charge with the EEOC alleging retaliation.

The charges were initially resolved by a settlement agreement under which Jaxon was to be reinstated and given the appropriate seniority. Upon his return to work, Jaxon was scheduled to work as a "floater," an assignment he believed violated the seniority rights given him by the agreement. Following an unsatisfactory meeting with Circle K personnel to resolve the problem, Jaxon felt harassed and degraded and quit his Circle K employment. He then filed a third EEOC charge alleging further retaliation.

Jaxon eventually brought this action. The EEOC defendants were dismissed from the case, and class certification was denied. Thereafter, the remaining defendants filed a motion for summary judgment. Under Fed.R.Civ.P. 56, when a motion for summary judgment is supported by sworn affidavits or other materials provided under oath, the nonmoving party must respond in kind in order to show the existence of an issue of material fact. See, e.g., Nakao v. Rushen, 580 F.Supp. 718, 722 (N.D.Cal.1984). Most of the material submitted by Jaxon was not sworn as required by the rules. In granting defendants' motion, the district court concluded that Jaxon had set out five claims and had failed to support any of them by "even a scintilla of evidence." Rec., vol. III, at 1008.

In fact, as illustrated by Jaxon's response to the motion, the record reveals material which would preclude the grant of summary judgment on Jaxon's discrimination and retaliation claims if that material were in the proper form. 1 He filed a response to the summary judgment motion in which he did the following:

(1) Attached EEO-1 Employer Information Reports which Circle K had submitted to the EEOC over a seven-year period and which raised an inference that defendant underemployed blacks.

(2) Reiterated statements made in his unverified complaint, which were based on his personal knowledge, including one by defendant Campau, Circle K's area director, who stated to him, "Why don't you get out and get a job? Your kind will get no free rides around here." Rec., vol. III, at 894.

(3) Attached a decision of the Appeal Tribunal of the New Mexico Employment Security Department in which it was determined after a hearing that, inter alia, "the employer had no intent to comply with the [EEOC settlement] agreement," and that Jaxon was therefore justified in quitting his job. Id. at 912-13.

(4) Referenced the Vlahos deposition which, viewed most favorably to Jaxon, supports an inference that Gomez was giving Jaxon bad employment references in retaliation for the filing of the first EEOC charge against Circle K.

(5) Attached unverified statements taken by the EEOC which tended to undermine the credibility of defendant Gomez's statement in his affidavit that he was unaware of the EEOC charge when he talked with Mr. Vlahos. 2

Thus Jaxon was clearly diligent in his pro se efforts to respond to defendants' motions.

It is also clear from his response and from the transcript of the summary judgment hearing that Jaxon did not understand the need to submit affidavits countering what defendants had stated in their affidavits, and that he mistakenly believed the EEOC interviews were admissible. Rec., vol. III, at 954; id., vol. IV, at 32, 44-50. Moreover, he stated to the court that he had not attempted to obtain affidavits from Circle K employees because he had been told by defense counsel not to contact them, and he implied that he had no money with which to take depositions. 3 Id., vol. IV, at 46. When Jaxon realized during the hearing that he had to file affidavits, he tried to request a chance to comply, but the...

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    ...117 S.Ct. 175, 136 L.Ed.2d 116 (9th Cir. 1996). [FN82]. Hall, 935 F.2d at 1110. [FN83]. Id. at 1111, quoting Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985). [FN84]. Lemons, 963 F.Supp. at 1044. [FN85]. K.S.A. 77-519(a). [FN86]. Puerto Rico Aqueduct & Sewer Authority v. U.S.E.......

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