Waller v. Consolidated Freightways, 89-1050-C.

• Decision Date: 23 July 1991
• Docket Number: No. 89-1050-C.,89-1050-C.
• Citation: 767 F. Supp. 1548
• Court: U.S. District Court — District of Kansas
• Parties: Morris W. WALLER, Plaintiff, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Defendant.

767 F. Supp. 1548

Morris W. WALLER, Plaintiff, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Defendant.

No. 89-1050-C.

United States District Court, D. Kansas.

July 23, 1991.

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Stephen B. Plummer, Rumsey, Plummer & Rumsey, Wichita, Kan., for plaintiff.

Mikel L. Stout and Wyatt Wright, Foulston & Siefkin, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant's motion for summary judgment. Plaintiff brings this race discrimination suit seeking relief under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq., for the denial of promotions and transfers, unequal pay, and harassment. The request for oral argument is denied for it would not materially assist the court's decision on the motion.

Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-12.

An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact is "material" if proof of it might affect the outcome of the lawsuit. 477 U.S. at 249, 106 S.Ct. at 2510. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476-77 (10th Cir.1990).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Though a court should be cautious to grant summary judgment in a discrimination case when intent is at issue, such motions are useful to weed out those claims and cases obviously lacking merit. Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir.1988); Schwenke v. Skaggs Alpha Beta, Inc., 858 F.2d 627, 628 (10th Cir.1988). Plaintiff must come forth with specific facts to show a genuine issue of material fact; mere assertions or conjecture as to intent or pretext is not enough to survive summary judgment. Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988).

This court's general practice is to set forth the uncontroverted facts gleaned from the parties' filings. In this case, the defendant's statement of facts are lengthy, taken in large part from the plaintiff's deposition, and uncontroverted for the most part. Consequently, the court adopts the defendant's statement and offers the following as a background summary of it.

In May of 1980, plaintiff, Morris W. Waller ("Waller"), was hired by Consolidated Freightways Corporation of Delaware ("CF") as a dock worker without any set or guaranteed hours of employment. He obtained seniority with the company later that summer and became a regular employee. In October of 1980, plaintiff applied for and received the position of dock foreman. Plaintiff's promotion was obtained on the recommendation of Wayne Urban, the terminal manager at the Wichita terminal.

As dock foreman, plaintiff was responsible for supervising the loading and unloading of freight, monitoring distribution of freight, handling customer relations, and controlling labor, claims and injuries. Plaintiff is presently a dock foreman for defendant. Neither his pay nor his benefits have been reduced throughout his employment. Instead, he has received periodic raises. His duties as dock foreman did not change when Gerald Chelgren became the terminal manager in the fall of 1980.

The first issue of fact appearing in the pretrial order is that plaintiff was unlawfully denied promotions to the position of account manager at the Wichita terminal which were given instead to Matt Richards, Wayne Leach and Wayne Urban.

Matt Richards, a college graduate with some sales experience, was hired as account manager in 1983. Plaintiff had asked the terminal manager to be considered for the position given to Richards. Plaintiff never filed a grievance or complaint because of Richards' hiring. Waller testified that he asked Urban why he was not given this position and Urban told him that Wichita was not ready for a black account salesman.

In October of 1986, Richards resigned and the defendant advertised this opening in the newspaper. By plaintiff's request, he was interviewed for this position by Urban, the terminal manager, and Mike Maier, the division manager. Wayne Leach was selected for the position as he had been rated the top candidate during the interviews. Plaintiff believes discrimination is evidenced here by the facts that Leach was hired from outside the company, that plaintiff had six years with defendant, that defendant had a corporate policy which favored filling positions from within the company, and that the defendant violated the 1974 consent decree in this particular hiring.

In the spring and early summer of 1988, performance at the defendant's Wichita terminal was poor. The division manager first placed the terminal manager, Urban, on marginal status, which means the employee has not been meeting expectations and is not eligible for salary increases or promotions. Urban, in turn, placed the plaintiff and the other dock foreman, Ruple, on marginal status, believing them equally responsible for the terminal's poor performance. Plaintiff was on marginal status from June 1988 through March 10, 1989. Urban and Ruple were not taken off marginal status before March 10, 1989.¹

In November of 1988, due to poor performance at the Wichita terminal, Chelgren was brought in as the Wichita terminal manager, and Urban was demoted to a second account manager in order that Urban's knowledge of and experience with the customer base in Wichita would not be lost. Plaintiff believes it was discriminatory to give Urban this position because Urban had promised him the next account manager position which came open after Leach was hired in 1986. Plaintiff does not know if another account manager was even needed at the time Urban was demoted into that position.

Another issue of fact in the pretrial order is: "Whether the defendant has engaged in unlawful and disparate treatment of, systematic exclusion of and discrimination against the plaintiff by failing to give him and allowing him to transfer into the following positions: ...." Following this issue, the pretrial order lists thirty-nine different people and their positions in approximately twenty different cities and seven different states.

In 1984 or 1985, plaintiff called division headquarters about a possible transfer to Kansas City. He was told there were no openings. Plaintiff testified in his deposition that he read about positions being filled and promotions in various terminals. Because no notice of those openings was given him, plaintiff learned of these available positions only when the new employment was announced over the defendant's teletype. As a result, plaintiff did not apply for any of these positions other than telling the terminal manager that he was willing to relocate if a promotion became available. Plaintiff had no other promotion discussions with defendant's management. Plaintiff never sent a letter requesting a transfer to Kansas City or anywhere else.

Plaintiff asserts that any promotion to terminal manager required some prior experience as an account manager. Plaintiff admits, however, it would be mere speculation to say that sometime after his promotion to account manager that he would have been promoted to terminal manager. If plaintiff had become an account manager, his pay would have increased slightly, his supervisory responsibilities would not have increased, he would not have been responsible for the dock workers, he would not have had any concerns with the budget, personnel or administration, and he would not have had any disciplinary responsibilities over other employees. His terms and conditions of employment would not have changed as he would have been subject to the same operations manual and the same supervision of the terminal manager.

On May 15, 1987, plaintiff filed a charge of discrimination against the defendant. Plaintiff alleged therein that because of his race he had been subject to racial slurs and harassment, he had been denied promotions, and he had been subjected to unequal terms and conditions of employment. Plaintiff testified that he had no particular promotion in mind when he filed this charge. Urban told plaintiff that his career with defendant was over after this charge was filed.

Another issue of fact in the pretrial order provides: "Whether the defendant terminated the plaintiff on March 10, 1989, because of his race and/or because he was exercising his lawful right to protest race discrimination in employment."

In January of 1989, Chelgren met with plaintiff and Ruple to discuss among other things their management and supervision styles. Chelgren notified them that another review would take place in 30-45 days. On March 10, 1989, Chelgren again met with Ruple and the plaintiff to discuss some problems with the terminal and possible solutions which had been listed in writing. After reading the document, plaintiff was asked to sign it below the statement: "I have read and understood the contents of this review." Plaintiff refused to sign the document even after Chelgren...