McKnight v. Kimberly Clark Corp.

Decision Date10 July 1998
Docket NumberNo. 97-5179,97-5179
CourtU.S. Court of Appeals — Tenth Circuit
Parties77 Fair Empl.Prac.Cas. (BNA) 1408, 73 Empl. Prac. Dec. P 45,436, 4 Wage & Hour Cas.2d (BNA) 1297, 98 CJ C.A.R. 3807 Wayne McKNIGHT, Plaintiff-Appellant, v. KIMBERLY CLARK CORPORATION, a Delaware Corporation; Guardsmark, Inc., a Delaware Corporation; and Tan Jean Patton, an individual, Defendants-Appellees.

Robert L. Briggs (Catherine A. Garchell with him on the brief), Briggs & Gatchell, Tulsa, Oklahoma, for Plaintiff-Appellant.

Denise Cotter Villani, McFall Law Firm, Dallas, Texas and Michael Clark Redman, Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma (Shelly L. Dalrymple, Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma, John E. McFall, and Steven L. Rahhal, McFall Law Firm, Dallas, Texas with them on brief), for Defendant-Appellee.

Before TACHA and BALDOCK, Circuit Judges, and GREENE, District Judge. *

J. THOMAS GREENE, District Judge.


Wayne C. McKnight (McKnight) was employed at Kimberly Clark Corporation (KCC) from February 10, 1992 to July 25, 1995. Tan Jean Patton was employed by Guardsmark, an independent contractor of KCC providing security for its facilities. McKnight was accused of sexually assaulting Patton on KCC's premises on July 17, 1995. Patton reported this assault to McKnight's supervisors and KCC conducted an investigation. It was learned that McKnight had previously participated in offensive sexual conduct towards other female employees at KCC. Specifically, Ms. Cheryl Williams reported that McKnight "followed her in his car, talking nasty." (Aple.App. at 100-01.) Further, Ms. Carol Pinkham reported that McKnight was "touching and feeling" her in the guard house of Ford Glass, the facility in which they worked previously. (Aple.App. at 104-05.) This caused her to request a transfer, which was denied, so she terminated her employment with Ford Glass and went to work for Guardsmark. While working for Guardsmark, Pinkham experienced further sexually suggestive comments by McKnight who was then employed by KCC. Decision makers at KCC believed that McKnight had sexually assaulted Patton on the basis of the investigation which, among other things had revealed other complaints against plaintiff involving incidents of sexual misconduct in the workplace. (Aple.App. at 45.) Also, there was no evidence which cast doubt upon Patton's credibility. (Aple.App. at 45.) Accordingly, KCC terminated McKnight on July 25, 1995.

McKnight sued defendants on February 20, 1996, alleging that he was terminated due to his age and gender, and that KCC owed him for unpaid wages and overtime. On February 17, 1997, McKnight attempted to

amend his claims against Guardsmark and KCC to add a cause of action for negligent hiring and retention. The district court refused to grant leave to amend, and granted summary judgment in favor of defendants. McKnight appealed, asserting that the district court erred in granting summary judgment on the discrimination and unpaid wages claims, and in denying plaintiff's motion to amend the complaint.


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); Celotex Corp.v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo, applying the same standard as the district court. Wolf v. Prudential Insurance Co.of Am., 50 F.3d 793, 796 (10th Cir.1995). "[We] examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine [whether] the substantive law was applied correctly," and in so doing "we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion." Applied Genetics Int'l, Inc.v. First Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir.1990). However, "where the non moving party will bear the burden of proof at trial on a dispositive issue" that party must "go beyond the pleadings" and "designate specific facts" so as to "make a showing sufficient to establish the existence of an element essential to that party's case" in order to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265.

Age Discrimination

McKnight claims that age was a determinative factor in his termination, thereby violating the Age Discrimination in Employment Act (ADEA.) In evaluating ADEA claims, the Tenth Circuit uses the three-stage analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to prove discrimination when no direct evidence of discrimination exists. At the first stage, the plaintiff must prove a prima facie case of discrimination, i.e., that (1) he is "within the protected age group;" (2) he "was doing satisfactory work;" (3) he "was discharged;" and (4) his position was filled by a younger person. Cone v. Longmont United Hospital Ass'n, 14 F.3d 526, 528-30 (10th Cir.1994). In the second stage, the defendant must carry the burden to provide a legitimate nondiscriminatory reason for plaintiff's termination. Id. If defendant articulates a legitimate, nondiscriminatory reason for its action, the burden of production shifts back to the plaintiff, who as plaintiff must also carry the burden of persuasion. In the third stage, plaintiff must show that age was a determinative factor in defendant's employment decision, or show that the defendant's explanation was merely a pretext. Id.; Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1425 (10th Cir.1993).

Defendants stipulated that McKnight established a prima facie case of discrimination. Defendant KCC articulated a nondiscriminatory reason for terminating McKnight, i.e., that management had a good faith belief that McKnight had sexually assaulted Patton based on the investigation it conducted. (Aple.App. at 42--45.) This moved the case into the third stage in which plaintiff attempted to show that defendant's explanation was "merely a pretext." Cone at 529. In this regard, plaintiff contends that KCC's decision to terminate him was pretextual because of evidence which was known at the time of the investigation as well as evidence which was developed thereafter. He pointed to the following arguments and evidence known by KCC before termination: (1) the fact that no physical evidence was presented to support Patton's claim (Aplt.App. at 591); (2) the fact that Patton first claimed the attack took place at 11:45 p.m., (Aplt.App. at 1630) but later claimed that 10:00 p.m. was the correct time (Aplt.App. at 177); (3) testimony by Mc-Knight's co-worker Plaintiff also bases his age discrimination claim on the theory that the work environment at KCC was hostile to older employees. McKnight claims that co-workers often made age related comments to him, some of which were made in the presence of management (Aplt.App. at 688, 691), that he saw a memo approximately one year prior to his termination forecasting the layoff of four maintenance workers, and stating that "the old man will be the first to go" (Aplt.App. at 752), and that when plaintiff was terminated Mr. Taniguchi, a KKC manager, commented that "he (Taniguchi) was not as old" as McKnight. (Aplt.App. at 393-94.)

Tom Matheny, that the two men were together "almost every minute that night" (Aplt.App. at 163). After the investigation was completed and his termination had occurred McKnight submitted an affidavit by Patton's former employer police chief Hobart Simpson that Patton was not considered to be an honest person (Aplt.App. at 637-39, 643-45). Also, well after completion of the Human Resource Director's report, McKnight deposed Patton and argued that she admitted having a motive to induce KCC to fire McKnight. (Aplt.App. at 562.) 1

Pretext in cases such as this may be established by showing either "that a discriminatory reason more likely motivated the employer or ... that the employer's proffered explanation is unworthy of credence." Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Where as here plaintiff seeks to demonstrate that the employer's explanation is merely a pretext, this court "requires a showing that the tendered reason for the employment decision was not the genuine motivating reason, but rather was a disingenuous or sham reason." Reynolds v. School District No.1 Denver, 69 F.3d 1523, 1535 (10th Cir.1995). Summary judgment is not ordinarily appropriate for settling issues of intent or motivation. Setliff v. Memorial Hosp.of Sheridan County, 850 F.2d 1384, 1394 n. 12 (10th Cir.1988). However, in this case, McKnight has not shown that at the time of his termination there was any dispute or a genuine issue concerning the sincerity of defendants' proffered reason for his termination. In this case the totality of McKnight's proffered evidence is insufficient to raise a genuine doubt about KCC's motivation at the time of termination. An articulated motivating reason is not converted into pretext merely because, with the benefit of hindsight, it turned out to be poor business judgment. Reynolds, 69 F.3d at 1535. The test is good faith belief. Id. In this regard, if KCC believed Patton's allegations and terminated McKnight for that reason, such belief would not be pretextual even if the belief was later found to be erroneous. Based upon the foregoing, this court finds no evidence in this record that KCC's stated reason at the time of termination of McKnight was pretextual.

McKnight's claim of hostile work environment against older employees also fails. The age related...

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