United States District Court, D. Utah, Central Division
B. Pead Magistrate Judge
MEMORANDUM DECISION AND ORDER ADOPTING REPORT AND
Waddoups, United States District Judge.
case was assigned to United States District Court Judge Clark
Waddoups, who then referred it to United States Magistrate
Dustin B. Pead under 28 U.S.C. § 636(b)(1)(B). (Dkt. No.
21.) Plaintiff Eric Daniel Kolkebeck alleges Home Depot
discriminated and retaliated against him by failing to
promote him and terminating his employment in violation of
the Americans with Disabilities Act (ADA). (See Dkt.
No. 38.) On January 29, 2016, Home Depot moved for summary
judgment on Mr. Kolkebeck's claims. (Dkt. No. 50.) After
briefing was completed, Judge Pead held a hearing on the
motion. (Dkt. No. 62.)
September 9, 2016, Judge Pead issued a Report and
Recommendation recommending the court grant Home Depot's
motion for summary judgment. (See Dkt. No. 63.) Mr.
Kolkebeck objected to Judge Pead's Report and
Recommendation, (Dkt. No. 66), and Home Depot responded,
(Dkt. No. 67). The court has carefully reviewed all of the
filings and the record in the case de novo. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(holding that upon timely written objection, the district
court reviews a magistrate judge's report de
novo). For the reasons explained below, the court
APPROVES AND ADOPTS Judge Pead's Report and
Recommendation in all respects, except Judge Pead's
conclusion in Section II(b)(1)(D) that Mr. Kolkebeck did not
establish a prima facie case of discrimination for the June
2011 interview and failure to promote. (See Dkt. No.
63, p. 13.) The court also responds to each of Mr.
Kolkebeck's objections below.
de novo review of the record and the parties'
filings, the court agrees with Judge Pead's analysis and
conclusion that Mr. Kolkebeck has failed to raise a genuine
issue of material fact that Home Depot's proffered
nondiscriminatory reason for his termination was pretext for
either discrimination or retaliation. (See Dkt. No.
63, pp. 20 & 27.)
Kolkebeck first objects to Judge Pead's conclusion that
Home Depot's failure to promote him in June 2011 did not
satisfy his prima facie case for discrimination. (Dkt. No.
66, p. 2.) To complete the prima facie case for
discrimination in the ADA context, Mr. Kolkebeck has the
burden to demonstrate he “suffered discrimination by an
employer . . . because of [his] disability.”
E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1038
(10th Cir. 2011). At summary judgment, as Judge Pead noted,
Mr. Kolkebeck must “present some affirmative evidence
that disability was a determining factor in the
employer's decision.” Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Judge Pead
found that Mr. Buchanan's interview notes regarding Mr.
Kolkebeck--both on their face and compared to notes on other
interviewees--did not raise a reasonable interference of
discriminatory failure to promote. Mr. Kolkebeck objects to
this conclusion because he was subjected to “speech
criticisms that his comparator employees were not, ”
even if those criticisms were not solely predicated on Mr.
Kolkebeck's stutter. (Dkt. No. 66, p. 4-5.) He notes that
Mr. Buchanan had no criticisms of “communication
skills” for those interviewees who did not stutter, in
contrast to Mr. Kolkebeck. (Id. at 4.)
Kolkebeck's burden to establish a prima facie case by a
preponderance of the evidence is “not onerous”
and “requires only a ‘small amount of proof
necessary to create an inference' of discrimination or
retaliation.” Smothers v. Solvay Chemicals,
Inc., 740 F.3d 530, 539 (10th Cir. 2014) (citations
omitted). Like Judge Pead, the court has serious doubts
regarding whether the evidence presented meets Mr.
Kolkebeck's low burden to establish a prima facie case of
discrimination on either the failure to promote or the
decision to terminate. Judge Pead assumed, however, that Mr.
Kolkebeck met his prima facie burden to show Home Depot
discriminated against him when it terminated him, and
proceeded with the burden shifting analysis. (See
Dkt. No. 63, p. 14.) The court will do the same, and will
additionally conclude that Mr. Kolkebeck has provided
sufficient evidence to satisfy the prima facie case of
discrimination when Home Depot failed to promote Mr.
Kolkebeck in June 2011.
Kolkebeck's argument on the failure to promote appears to
exploit an ambiguity in the concept of “communication
skills.” Because Mr. Buchanan rated Mr. Kolkebeck lower
in his “ability to communicate” and noted
“vague, ” “short answers no description,
” or “could not come up with any answer”
during the interview, Mr. Kolkebeck contends these
statements, construed most favorably to his case and
considered alongside the lack of criticism directed toward
the two other interviewees, provide circumstantial evidence
allowing an inference of discrimination based on his stutter.
Drawing all inferences in his favor, the court will assume
Mr. Kolkebeck has raised a genuine issue of fact that Home
Depot failed to promote him in June 2011 because of his
Kolkebeck next objects to Judge Pead's conclusion that he
failed to raise a genuine issue of material fact that Home
Depot's proffered, legitimate reasons for the failure to
promote and the termination were pretext for discrimination
or retaliation. (See Dkt. No. 66, pp. 2, 10
(indicating this objection relies on the same evidence of
pretext as to each claim).)
the failure to promote, Home Depot provides a legitimate
nondiscriminatory reason for not promoting Mr. Kolkebeck in
June 2011: Home Depot did not select any of the three
candidates who interviewed for the position, including Mr.
Kolkebeck, because it decided instead to internally transfer
another qualified department supervisor from a different
department in the store. (See Dkt. No. 50-9, Ex. I,
Aff. of Bryan Ross Buchanan, ¶¶ 4-5.) Thus, the
burden shifts back to Mr. Kolkebeck to raise some question of
fact that Home Depot's decision to move another qualified
employee laterally was pretext for failing to promote Mr.
Kolkebeck based on his disability.
pretext, Mr. Kolkebeck presumably relies on a comparison of
Mr. Buchanan's interview notes on each candidate and Mr.
Kolkebeck's qualifications disclosed in the interview.
(See Dkt. No. 66, pp. 3-5.) This evidence does not
disclose any “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 and hence infer that the employer did
not act for the asserted non-discriminatory reasons.”
Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1203 (10th Cir. 2006) (quoting Hilti,
108 F.3d at 1323). Importantly, while this evidence may have
sufficed to establish a prima facie case, Mr. Kolkebeck's
burden to show pretext “is more demanding and requires
[him] to assume ‘the normal burden of any plaintiff to
prove his or her case at trial.'” Annett v.
Univ. of Kansas, 371 F.3d 1233, 1241 (10th Cir. 2004)
(quoting E.E.O.C. v. Flasher Co., 986 F.2d 1312,
1316 (10th Cir. 1992)). Judge Pead observed a basic weakness
in this evidence even at the prima facie stage: the interview
notes on their face attend to the content of Mr.
Kolkebeck's answers (or lack of answer), not his manner
of delivering those answers. Mr. Buchanan summarizes Mr.
Kolkebeck's ability to communicate by stating he gave
“very short inprecise[sic] answers” and
“could not really answer some questions.” These
notes do not address Mr. Kolkebeck's disfluency or manner
of speaking; they critique the lack of detail or depth in an
answer, and the lack of any answer at all. (See Dkt.
No. 53, Ex. 5.) Mr. Buchanan confirmed as much during his
deposition. (See Dkt. No. 50-6, Ex. F, Dep. of Bryan
Ross Buchanan at 17:12-18:4; 25:22-26:16; 34:1-35:12.) Mr.
Kolkebeck's own interpretation of these notes as
criticisms of his stutter (or manner of delivery) does not
raise a reasonable inference of pretext for discriminatory
intent, even when compared with the favorable ratings of
other interviewees. See Annett, 371 F.3d at 1241
(“Mere conjecture that the [employer] acted with
discriminatory reasons will not suffice to establish
pretext.”); Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004) (“To
defeat a motion for summary judgment, evidence, including
testimony, must be based on more than mere speculation,
conjecture, or surmise.”). The evidence shows the other
non-disabled interviewees were also evaluated based on the
content and depth of their answers, as instructed by criteria
in the interview packet itself. (See Dkt. No. 50,
Ex. H.) The other interviewees were also denied the
promotion, despite higher interview ratings. Moreover, the
record does not clearly speak to Mr. Kolkebeck's
qualifications in comparison to the department supervisor
Home Depot moved into the position. The only evidence
suggests that both Mr. Kolkebeck and the person chosen were
qualified for the position, and the court sees no basis to
infer pretext from neutral evidence or to supplant the
employer's judgment with its own. See Johnson v. Weld
Cty., 594 F.3d 1202, 1211 (10th Cir. 2010) (noting a
court does not act as a “‘super personnel
department' to undo bad employment decisions” and
does not second guess an employer's business judgments
(quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d
1187, 1198 (10th Cir. 2008))). Thus, Mr. Kolkebeck has failed
to raise a genuine dispute of material fact that Home
Depot's reason for not promoting him in June 2011 was
pretextual. To show pretext relating to his termination, Mr.
Kolkebeck points to evidence of Home Depot's disparate
treatment of other employees who left store premises while
clocked in or who committed major work rule violations but
were not terminated. (See Id. at 6-8.) He also
relies on evidence of his prior record of exemplary
performance. (See Id. at 8-9.) The court again
concludes this evidence is not sufficient to allow a
reasonable juror to find Home Depot's justification for
the termination was pretext for discrimination based on Mr.
Kolkebeck's disability or retaliation for protected
complaints of disability discrimination. The court agrees
with Judge Pead that Ms. Farr is the most similarly-situated
comparator in this case, and that Home Depot treated her and
Mr. Kolkebeck identically: both were fired on the same day
for the same major work rule violation. (See Dkt.
No. 63, pp. 15-16, 26.)
assuming the other comparators Mr. Kolkebeck presents (Mr.
Burton, Ms. Lomas, and Ms. Farrah) committed infractions of
comparable seriousness and that they were disciplined more
leniently, the probative value of these comparators in this
case is low. As the Tenth Circuit has explained
[s]ometimes apparently irrational differences in treatment
between different employees that cannot be explained on the
basis of clearly articulated company policies may be
explained by the fact that the discipline was administered by
different supervisors, or that the events occurred at
different times when the company's attitudes toward
certain infractions were different, or that the
individualized circumstances surrounding the infractions
offered some mitigation for the infractions less severely
punished, or even that the less severely sanctioned employee
may be more valuable to the company for nondiscriminatory
reasons than is the other employee.
Flasher, 986 F.2d at 1320 (internal citations
omitted). Here, any disparate treatment of these comparators
is readily explained by the different management involved,
different time periods, different departments or positions,
and, in some instances, the lack of evidence of
management's awareness of work rule violations. The
uncontroverted evidence shows Mr. Kolkebeck admitted to the
major work rule violation, Home Depot independently
investigated the incident, and management ...