Jones v. Denver Post Corp., No. 98-1458

• Decision Date: 10 February 2000
• Docket Number: No. 98-1458
• Citation: 203 F.3d 748
• Parties: (10th Cir. 2000) FREDERICK A. JONES, KATHERINE PRESTON, AND LILLIAN B. TURNER, Plaintiffs - Appellants, v. DENVER POST CORPORATION, a Colorado corporation, Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 748

203 F.3d 748 (10th Cir. 2000)

FREDERICK A. JONES, KATHERINE PRESTON, AND LILLIAN B. TURNER, Plaintiffs - Appellants, v. DENVER POST CORPORATION, a Colorado corporation, Defendant - Appellee.

No. 98-1458

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 10, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D. Ct. No. 96-S-2359

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Scot Melvin Peterson (Michael H. Berger with him on the briefs), Waldbaum, Corn, Koff, Berger & Cohen, P.C., Denver, Colorado, appearing for Plaintiffs-Appellants.

Mary H. Stuart, Holme, Roberts & Owen, LLP, Denver, Colorado, appearing for Defendants-Appellees.

Before TACHA, McKAY, and ANDERSON, Circuit Judges.

TACHA, Circuit Judge.

The district court granted summary judgment to defendants on plaintiffs' claims of racial discrimination in employment. Plaintiffs filed a timely appeal and we exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.

I.

"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S. Ct. 53 (1999). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "'We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury.'" Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997) (quoting Williams v. Rice, 983 F.2d 177, 179 (10th Cir. 1993)). In an employment discrimination case, the trial court finding of intentional discrimination against a protected class is a finding of fact. EEOC v. Flasher Co., 986 F.2d 1312, 1317 (10th Cir. 1992). We review this finding for clear error. Id.

II.

The three plaintiffs allege that defendants' employment practices violated 42 U.S.C. § 2000e-2(a)(1) ("Title VII").¹ We review each plaintiff's claims individually.

A. Frederick Jones

1. Background

Frederick Jones, an African-American, began working at the Denver Post ("Post") in 1989. Between 1989 and 1996, Jones worked primarily as a voluntary sales representative, processing phone requests for classified advertisements.

Beginning in 1992, Jones received letters from Post management regarding his absenteeism. On August 11, 1992, Rhonda Canino, one of Jones's supervisors, issued him a written reprimand for insubordination concerning an extended lunch hour. On August 27, Canino advised Jones in writing that he had abused the company's sick leave policy by taking an unauthorized medical absence.

On January 3, 1995, Rosemary Reitz, another of Jones's supervisors, issued him a written warning for long-distance telephone calls made on company time and at company expense. On September 20, 1995, Jones received an additional written warning from Nancy Allen, another Post supervisor. Allen reprimanded Jones for using Post phones to conduct outside business. Allen cautioned Jones that future violations would result in his immediate termination.

From late 1995 to early 1996, Jones worked at the Post's fax desk, taking fax orders from advertisers. During this period, Reitz approached Jones about complaints regarding his work. Reitz advised Jones that if the situation at the desk did not improve, changes would be made. After a few months at the fax desk, Jones was sent back to the voluntary classified sales department.

On April 22, 1996, Jones filed a discrimination charge with the Colorado Civil Rights Division (CCRD) and the Equal Employment Opportunity Commission (EEOC). On August 1, 1996, the EEOC issued Jones a Notice of Right to Sue. Jones's discrimination charge alleged that the Post disciplined him differently than other employees and that the Post demoted him from the fax desk without warning. Based on the scope of the charge, the district court limited its jurisdiction to Jones's claims of disparate treatment and discriminatory demotion based on race.²

2. Analysis

In Title VII cases, the inquiry is whether defendant intentionally discriminated against plaintiff based on protected class characteristics. Flasher, 986 F.2d at 1317. A plaintiff may prove intentional discrimination "'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" EEOC v. Wiltel, Inc., 81 F.3d 1508, 1513 (10th Cir. 1996) (quoting United States Postal Service v. Aikens, 460 U.S. 711, 716 (1983)) (second citation omitted). A personnel policy which is discriminatory on its face provides direct evidence of intentional discrimination. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22 (1985). Since Jones offers no evidence of "an existing policy which itself constitutes discrimination," Ramsey v. City & County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990), his claim rests on indirect evidence of discrimination.

In Title VII cases based on indirect evidence, plaintiff has the initial burden of establishing a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If plaintiff does so, then defendant must "articulate some legitimate, nondiscriminatory reason" for the challenged personnel action. Id. Plaintiff then bears the ultimate burden of demonstrating that defendant's stated reason is in fact a pretext for unlawful discrimination. Id. at 804.

The district court found that Jones failed to establish a prima facie case of disparate treatment regarding his discipline by the Post. We agree. A prima facie case of disparate discipline may be established if the plaintiff proves by a preponderance of the evidence that (1) the plaintiff is a racial minority, (2) the plaintiff was disciplined by the employer, and (3) the employer imposed the discipline under circumstances giving rise to an inference of racial discrimination. Cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (articulating prima facie case for discriminatory treatment in context of failure to promote claim); id., at 254 n.6 (The prima facie "standard is not inflexible, as '[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations.") (quoting McDonnell Douglas, 411 U.S. at 802 n.13). One of the ways this third prong may be met, and the method chosen by Jones here, is by attempting to show that the employer treated similarly situated employees differently.

In the instant case, Jones contends that Rhonda Canino took orders for pastries from her husband's business during business hours, but the Post did not discipline her for this alleged conduct. Since the Post reprimanded Jones for using Post phones to conduct his outside business, Jones claims disparate treatment. However, the comparison Jones makes between himself and Canino is not legally relevant. Canino was one of Jones's supervisors and therefore cannot be deemed similarly situated in a disciplinary matter such as this one. Jones points to no other individual who was disciplined differently. Thus, the district court correctly granted defendants' motion for summary judgment on this count.

Jones also contends that his transfer from the fax desk back to voluntary sales constituted a discriminatory demotion. To establish a prima facie case of discriminatory demotion, plaintiff must show (1) that he was within a protected group, (2) adversely affected by defendant's employment decision, (3) qualified for the position at issue, Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 799 (10th Cir. 1993), overruled on other grounds by Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir. 1995), and (4) that the job from which he was demoted was not eliminated, Perry v. Woodward, 199 F.3d 1126, 1140-41 (10th Cir. 1999).

The district court did not evaluate Jones's prima facie case under the standard outlined above. Instead, the judge focused on Jones's lack of evidence concerning similarly situated non-African-American employees. We therefore assume without deciding that Jones established a prima facie case, and the burden shifted to the Post to articulate a legitimate, nondiscriminatory reason for returning him to voluntary sales. At this stage, defendant need only "explain its actions against the plaintiff in terms that are not facially prohibited by Title VII." Flasher, 986 F.2d at 1317. Jones had a long history of problems at the Post: he received both verbal and written warnings and was disciplined for various workplace violations. In addition, there were specific complaints about his performance at the fax desk. Thus, on this record, the Post has met its burden.

Jones bears the ultimate burden of demonstrating that defendant's proffered reasons for his demotion were pretextual. The district court concluded that the evidence as a whole was insufficient to create a genuine issue of material fact regarding pretext. We agree. Jones's replacement at the fax desk apparently was passed over for another position at the Post. Based on this singular objective fact, Jones offers his personal belief that the replacement was less qualified than he was for the fax position. "It is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of his own relative performance." Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996). Based on documented workplace...