Pastran v. K-Mart Corp.

• Decision Date: 28 April 2000
• Docket Number: No. 99-2210,K-MART,99-2210
• Citation: 210 F.3d 1201
• Parties: (10th Cir. 2000) MOSES PASTRAN, Plaintiff-Appellant, v.CORPORATION, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1201

210 F.3d 1201 (10th Cir. 2000)

MOSES PASTRAN, Plaintiff-Appellant, v. K-MART CORPORATION, Defendant-Appellee.

No. 99-2210

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 28, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-98-815-LCS/JHG)

Michael T. Milligan, El Paso, Texas, for Plaintiff-Appellant.

Deborah D. Wells, Kennedy, Moulton & Wells, Albuquerque, New Mexico, for Defendant-Appellee.

Before SEYMOUR, Chief Judge, and ALARCON ^* and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Moses Pastran filed an action in federal district court against Defendant K-Mart Corporation. Plaintiff's complaint alleged, among other things, that Defendant terminated him in retaliation for his complaints of discrimination. The district court concluded that Plaintiff failed to raise any factual issue regarding whether Defendant's proffered reason for terminating Plaintiff was pretextual, and granted summary judgment for Defendant. Plaintiff appeals. We exercise jurisdiction pursuant to 28 U.S.C. 1291. We reverse and remand.

I.

Plaintiff worked at Defendant's Deming, New Mexico store from 1977 to 1997. In 1990, a falling display shelf injured Plaintiff's back while he was working as receiving manager. Plaintiff filed a workman's compensation claim. For roughly the next three years, Plaintiff took time off to recover, working part time in the mornings. Ultimately, Plaintiff remained 9% permanently disabled and unable to lift more than 20 pounds. Defendant subsequently demoted Plaintiff to the entry-level position of register operator. Plaintiff repeatedly sought promotion to a management job, but to no avail.

In 1992 or 1993, Defendant named Denzil D. Van Swearingen the new manager of the Deming store. Plaintiff had several conflicts with Van Swearingen, whom Plaintiff felt disliked him because he was Hispanic, male, and unable to lift heavy objects. On several occasions, Plaintiff asked Van Swearingen for a promotion to a management job, and each time Van Swearingen refused. Plaintiff felt that white females were more often promoted and were subject to less rigorous discipline than him.

On November 14, 1996, human resources director Maggie Busse and assistant manager Jeannette Cowles offered Plaintiff a promotion to Do It Yourself (DIY) manager. Plaintiff was on vacation, so Busse called him at home and asked him to come to the store to discuss the promotion. Plaintiff asked for an opportunity to discuss the schedule changes with his wife, Lisa Pastran. The next day, Plaintiff's wife called Busse to accept. On November 18, when Plaintiff reported to work as DIY manager, Van Swearingen told Plaintiff that he had given the promotion to someone else because Plaintiff had not accepted the offer in time. Van Swearingen gave the position to Debbie Taylor, a white female.

That afternoon, Plaintiff and his wife called Busse to complain that they thought Plaintiff's loss of the DIY promotion was discriminatory. The Pastrans also complained to district manager Louise Shankles in Las Cruces, New Mexico. Later that week, Shankles came to the Deming store and met with Van Swearingen, Busse, Cowles, and Plaintiff and his wife for about three or four hours. Plaintiff testified in his deposition that he watched Shankles "verbally reprimand[] Mr. Van Swearingen, telling him that what they had done was very wrong."¹ Shankles told Cowles the same thing, adding that filling the position "could have waited until [Plaintiff's] return off [his] vacation . . . ."

Plaintiff also stated that Shankles apologized to him and "told Mr. Van Swearingen that the next promotion would be [Plaintiff's]," saying, "'Isn't that right, Mr. Van Swearingen[?]'" Lisa Pastran testified that Shankles called the management "very unprofessional," adding, "[T]hey should never have called [Plaintiff] in off his vacation [because] it wasn't the office of the president that they were trying to fill."

The store management's deposition testimony confirms that Shankles was critical of their handling of the DIY promotion. Van Swearingen testified about his meeting with Shankles: "[T]owards the end I probably had the feeling that this is an incident she didn't want to be involved in, and she wished it hadn't happened." Van Swearingen testified that Shankles said, "Well, looking back, we could have waited, and we agreed that we probably could have, but we made a mistake by not waiting." Van Swearingen confirmed Plaintiff's testimony that Shankles apologized to Plaintiff and promised him that he would receive the next available promotion. Cowles and Busse testified that they understood from the meeting with Shankles that Plaintiff was to receive the next available promotion. On January 2, 1997, about six weeks later, Plaintiff accepted a promotion to Health and Beauty Aids manager.

On January 23, 1997, Plaintiff had a confrontation with management about whether he must open a cash register. The service desk manager, Sandra Palmer, called Plaintiff over the public address system to open a register. Plaintiff told her that he had a headache and needed to take some aspirin first. Next, Cowles asked Plaintiff to open a register, and Plaintiff again asked for time to take an aspirin for his headache. Finally, Van Swearingen asked Plaintiff to come to his office, where he told him to either open a register or, if he was too sick, to clock out and go home. When Plaintiff refused, Van Swearingen called the police to escort Plaintiff away.

Plaintiff called Van Swearingen the next day and asked whether he had lost his job. Van Swearingen replied that he was not sure. Van Swearingen consulted with Shankles and Defendant's legal department about preparing statements regarding the lost DIY promotion and the insubordination and about deciding how to handle Plaintiff's termination. On January 27, the following Monday, Van Swearingen read Plaintiff a written statement telling him that he was fired. At the time Defendant fired him, Plaintiff was employee of the year at the Deming store. Van Swearingen thought highly of Plaintiff's ability to work with customers.

Plaintiff filed a complaint in the district court alleging that Defendant violated Title VII, 42 U.S.C. 2000e to 2000e-17, by failing to promote him and terminating him in retaliation for his complaints of discrimination and on the basis of his sex and national origin. Defendant filed a motion for summary judgment arguing that Plaintiff had not established a prima facie case on any of his claims. The district court granted summary judgment for Defendant on the wrongful termination claims, concluding that Plaintiff had not shown that Defendant's proffered reason--Plaintiff's insubordination--was pretextual. The district court later dismissed Plaintiff's failure to promote claims as time barred.² On appeal, Plaintiff argues that the district court erred in granting summary judgment for Defendant on the termination claims by not fully considering his evidence of pretext.³ We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Jones v. Denver Post Corp., 203 F.3d 748, 751 (10th Cir. 2000).

II.

Title VII prohibits employers from retaliating against employees who claim discrimination: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge . . . under [Title VII]." 42 U.S.C. 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in protected opposition to discrimination, (2) his employer subjected him to an adverse employment action subsequent to the protected activity, and (3) a causal connection exists between the protected activity and the adverse employment action. McGarry v. Board of County Comm'rs of the County of Pitkin, 175 F.3d 1193, 1201 (10th Cir. 1999).

We agree with the district court's conclusion that Plaintiff made a prima facie case of retaliation under Title VII by showing that he complained to Shankles and that he was terminated shortly thereafter.⁴ See Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999) (informal complaints to superiors or the use of the employer's internal grievance procedures constitutes protected activity under Title VII); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) (termination is an adverse employment action under the ADA);⁵ Bullington, 186 F.3d at 1321 (protected conduct closely followed by adverse action supports an inference of causal connection). Defendant claims, however, that it terminated Plaintiff for his insubordination on January 23, 1997, when he told the store's management that he could not open a cash register. This reason is non-discriminatory; accordingly, Plaintiff must present evidence that Defendant's proffered reason is pretextual.

Retaliation claims under Title VII are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Jones, 203 F.3d at 752. The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Jones, 203 F.3d at 752. If the plaintiff does so, then the defendant must offer a legitimate, non-discriminatory reason for its employment action. Id. The plaintiff then bears the ultimate burden of demonstrating that the defendant's proffered reason is pretextual. Id. A plaintiff may demonstrate pretext by showing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir. 1999).

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