Roman v. Bimbo Bakeries USA, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JUAN C. ROMAN,
Plaintiff,
v.
BIMBO BAKERIES USA, INC.,
Defendant.
Case No. 5:24-CV-04032-JAR
MEMORANDUM AND ORDER
Plaintiff Juan Roman brings this action against his former employer, Defendant Bimbo
Bakeries USA, Inc., alleging race discrimination, hostile work environment, and retaliation in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Kansas Act Against
Discrimination (“KAAD”). This matter is before the Court on Defendant’s Motion for Summary
Judgment (Doc. 37). The motion is fully briefed, and the Court is prepared to rule. For the
reasons explained below, the Court grants in part and denies in part Defendant’s motion.
I. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.1 In
applying this standard, the Court views the evidence and all reasonable inferences therefrom in
the light most favorable to the non-moving party.2 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the non-moving party, is such that a
reasonable jury could return a verdict for the non-moving party.”3 A fact is “material” if, under
1 Fed. R. Civ. P. 56(a); see also Grynberg v. Total S.A., 538 F.3d 1336, 1346 (10th Cir. 2008).
2 City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
3 Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
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the applicable substantive law, it is “essential to the proper disposition of the claim.”4 An issue
of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.”5
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.6 Once the movant has met this initial burden, the
burden shifts to the non-moving party to “set forth specific facts showing that there is a genuine
issue for trial.”7 The non-moving party may not simply rest upon its pleadings to satisfy its
burden.8 Rather, the non-moving party must “set forth specific facts that would be admissible in
evidence in the event of trial from which a rational trier of fact could find for the non-movant.”9
To accomplish this, the facts “must be identified by reference to an affidavit, a deposition
transcript or a specific exhibit incorporated therein.”10 The non-moving party cannot avoid
summary judgment by repeating conclusory opinions, allegations unsupported by specific facts,
or speculation.11
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of
every action.’”12
4 Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001).
5 Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
6 Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002).
7 Anderson, 477 U.S. at 256.
8 Id.; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
9 Mitchell v. City of Moore, 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)).
10 Adams v. Am. Guar. & Liab. Ins., 233 F.3d 1242, 1246 (10th Cir. 2000).
11 Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citations omitted).
12 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
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II. Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in the light most
favorable to Plaintiff as the non-moving party.13
A. Background and Workplace Policies
Defendant manufactures, sells, and distributes various fresh-baked goods under a variety
of brand names and operates bakeries across the United States, including in Topeka, Kansas.
Defendant hired Plaintiff, who identifies as Hispanic, to work in Defendant’s Topeka facility in
September 2014 as a production associate. Production associates at the Topeka facility are
represented by BCTGM Local 218 (the “Union”).
Throughout Plaintiff’s employment, Defendant maintained written policies prohibiting
harassment and discrimination on the basis of race and prohibiting unlawful retaliation. Plaintiff
acknowledged receipt of those policies when he was hired. Plaintiff also received and
acknowledged Defendant’s written attendance policy, described as a traditional “no fault” point
policy.14 The attendance policy provides that an associate may be subject to termination if they
accrue eight points in a rolling twelve-month period, and it distinguishes between “excused” and
13 Defendant objects to many of Plaintiff’s responses to Defendant’s statements of fact, arguing that
Plaintiff improperly attempts to add to or clarify facts by citing additional evidence after admitting the facts are
uncontroverted. The Court agrees and generally disregards factual assertions and record citations offered solely to
supplement admitted facts, particularly where those assertions do not appear in either Defendant’s statements of fact
or Plaintiff’s own statement of facts. See D. Kan. Rule 56.1(a), (b)(2) (providing that “[a]ll material facts set forth in
the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically
controverted by the statement of the opposing party,” and that “[i]f the party opposing summary judgment relies on
any facts not contained in movant’s brief, that party must set forth each additional fact in a separately numbered
paragraph”).
Additionally, in responding to Defendant’s motion for summary judgment, Plaintiff filed Doc. 44, a single,
281-page document containing all thirty of Plaintiff’s exhibits. The Court directs Plaintiff’s counsel to review this
Court’s Summary Judgment Guidelines, which explain that “[e]xhibits attached to summary judgment briefs should
be clearly and adequately described when they are entered in the CM/ECF system. [E.g., Attachments: #1 Index of
Exhibits, #2 Exhibit A - Bill Smith Affidavit]. This allows the court to easily locate them when they are cited.”
United States District Court for the District of Kansas, Summary Judgment Guidelines,
https://ksd.uscourts.gov/file/326 (Feb. 24, 2023).
14 Doc. 36 at 3 (Pretrial Order Stipulations ¶ 2.a.IX).
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“unexcused” absences.15 Excused absences are not subject to point accumulation, and only
unexcused absences are managed through the point system. Associates may ask a manager for
their attendance point total at any time.
Defendant’s Topeka facility operates four shifts: first, second, third, and fourth. The
third and fourth shifts overlap by approximately 2.5 hours. In 2018, Plaintiff was assigned to the
sanitation department, which is the fourth shift. At all relevant times, Jerry Allen (“Manager
Allen”) served as the fourth shift manager, and beginning in 2021, Josh Henning (“Supervisor
Henning”) served as the fourth shift supervisor.
On October 7, 2020, Plaintiff received live training on and copies of Defendant’s
“Respect in the Workplace,” “Equal Employment and Affirmative Action,” and “Complaints and
Investigations” policies.16 Those policies include a complaint mechanism instructing associates
to report potential policy violations, including discrimination and retaliation, to management,
human resources, or Defendant’s toll-free hotline.
B. Defendant’s Investigation of the Fourth Shift’s Break Use
Associates at Defendant’s Topeka facility are entitled to take a 30-minute unpaid lunch
break. The Union contract governs associate break times and does not specify a particular time
when associates must take their breaks.
On March 21, 2022, Supervisor Henning began investigating whether two fourth shift
associates, Ryland Patton and Cindi Scheibe, were taking excessive breaks. On March 23, 2022,
Supervisor Henning provided Anne Hall, the facility’s human resources generalist, with three
days of time-tracking information indicating Patton was taking excessive breaks. That same day,
15 Id. (Pretrial Order Stipulations ¶ 2.a.XII).
16 Id. (Pretrial Order Stipulations ¶ 2.a.VIII).
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Hall spoke with Patton, who admitted he took excessive breaks and stated that the entire fourth
shift was taking excessive breaks. Hall then expanded her investigation to review the break
usage for the entire fourth shift.
On March 24, 2022, Scheibe reported to Manager Allen that she could not locate Plaintiff
and Joshua Jenkins and believed they had been off the shop floor for over an hour. In response,
Manager Allen pulled up Plaintiff and Jenkins on camera, monitored them, and then called them
into his office to inform them they were being placed under investigation. Hall’s investigation
report reflects that video footage showed Plaintiff and Jenkins taking an hour-long lunch, 30
minutes beyond the permitted 30-minute lunch break, and that the footage showed them hiding
in the locker room, clocking out for lunch, clocking back in, and returning to the locker room
before going back to the shop floor.
During Hall’s break-use investigation, Patton and Jenkins told Hall that they thought race
was dividing the fourth shift, and Hall responded that she was investigating the entire shift.
Consistent with those concerns, on March 29, 2022, Brenda McConnaughey, a production
associate, submitted a written statement to Defendant’s human resources department describing
that the “4th team is no longer a team” and that the shift was divided by “accusations, innuendos,
[and] implied threats.”17 McConnaughey noted that the break times of Patton, Jenkins, Ebony
Haase, and Plaintiff were being questioned, and she described team members as feeling singled
out, victimized, and racially profiled. McConnaughey also wrote that another production
associate, Brian Talbert Marshall, was “provoking” Plaintiff because “Trump was firm on
building the wall.”18 McConnaughey’s statement further reflects that she raised these concerns
17 Doc. 44 at 236.
18 Id. at 238.
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with Manager Allen, Supervisor Henning, and the Union steward, Jon Wilson (“Steward
Wilson”). Hall did not investigate race-related issues as part of the break-use investigation.
At the conclusion of Hall’s investigation, Hall and Supervisor Henning determined that
the following fourth shift associates violated Defendant’s break policy on March 21, 2022, and
each received a documented verbal warning on April 6, 2022: Plaintiff, Rose McCall, Jenkins,
Nicole Sullivan, Chase Cramer, Scheibe, and Patton. Hall concluded that Jenkins took the most
excessive breaks of the seven associates, but nonetheless received the same documented verbal
warning as the others. Neither the Union nor any associate who received a documented verbal
warning on April 6, 2022 filed a grievance.
Hall also learned during her investigation that Manager Allen had been giving Scheibe
additional and more flexible break time to care for her grandchildren, and Hall instructed
Manager Allen to cease allowing that accommodation.
C. The May 4 Letter
On or about May 4, 2022, Katlyn Anderson, a production associate, submitted a letter to
Defendant (the “May 4 Letter”) signed by herself and seven other fourth shift associates: Haase,
Terrell Alexander, McConnaughey, Alejandro Llamas, Cramer, Patton, and Plaintiff. In the
letter, the signees alleged they were targets of discriminatory and harassing conduct by four co-
workers: Brian Talbert Marshall (“Talbert”), Christy Marshall (“Christy”), Drora Neff, and
Scheibe. The letter alleged the following:
In Sanitation there has been a lot of “hostile” work environment like RACEISM
[sic] . . . . Incidences such as watching the only minorities on the team from a
distance. Then complaining about said minorities to upper management in hopes
of getting them into trouble. In one[] case[,] abusing a potential “FAD” title to
cause conflict. In another’s case[,] using politics and religious beliefs to degrade
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said individuals . . . . Just because they are white don[’]t make it right to belittle
someone!19
In addition to submitting the May 4 Letter, Anderson submitted a complaint to
Defendant’s “Speak Up” hotline on May 4, 2022, which was emailed that day to Jose Lemus, a
human resources manager, and Hall.20 In her complaint, Anderson stated that Scheibe, Christy,
Talbert, and Neff were creating a hostile work environment based on racism and discrimination.
Anderson also stated that those individuals claimed Patton, Terrell Alexander, Plaintiff, Haase,
Llamas, Cramer, McCall, and McConnaughey were “not in their work area” in order to get them
in trouble.21
Anderson further stated that Christy requested that Patton and Plaintiff not help her, and
then later complained that they did not help her. Anderson also reported that Talbert stated, “[i]f
you don’t like my political views, my white brothers and I will handle the situation,” and “[t]his
is white man’s land before anybody else’s land.”22 Anderson further stated that Talbert was part
of an activist group he called his “white brothers.”23
Anderson also stated that she had previously reported the conduct of Scheibe, Christy,
Talbert, and Neff to Manager Allen and Supervisor Henning, but the situation had not changed.
Anderson further alleged that Scheibe, Christy, Talbert, and Neff also created a hostile work
environment for Cramer, McCall, and McConnaughey because those employees were friends
with Patton, Alexander, Plaintiff, Haase, and Llamas.
19 Doc. 38-16 at 2–3.
20 Doc. 44 at 228–31.
21 Id. at 230.
22 Id.
23 Id. at 230–31.
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In response to the May 4 Letter and the Speak Up complaint, Hall opened an
investigation. Hall interviewed all eight associates who signed the May 4 Letter, as well as
Christy and Scheibe. Hall also spoke with Steward Wilson and Manager Allen. During the
interviews, Hall either took handwritten notes or asked the interviewee to prepare a handwritten
statement.
Hall’s handwritten notes from her interview with Anderson reflect that Anderson told
Hall that Christy, Talbert, Scheibe, and Neff had formed a clique, that it “feels like the 4 are
forming a group against others,” and that “[t]hey are telling on everybody else.”24 Anderson also
reported that, on April 30, 2022, Plaintiff was on vacation, but his time off was not reflected on
the calendar. Anderson stated that, because of this, Scheibe and Christy went to Manager Allen
to try to “make [Plaintiff] get a point” and were upset when Plaintiff was not fired.25
Anderson further alleged that Scheibe had been hazing Llamas by not telling him the
Sunday schedule, which required a 4 A.M. to 4 P.M. shift rather than 6 A.M. to 6 P.M., and then
“got onto” Llamas when he arrived at 6 A.M., telling him he would “get points for not being
there” at 4 A.M.26 Anderson also stated that Scheibe called the Union to try to get Steward
Wilson “in trouble” for “not doing his job” and “picking sides,” and that Anderson had
communicated these concerns to Supervisor Henning when she returned from leave in March
2022 and had also communicated them to Manager Allen.27
Hall’s handwritten notes from her interview with McConnaughey reflect that
McConnaughey told Hall that Talbert and Christy bent the rules by using the Union contract to
24 Id. at 249.
25 Id.
26 Id. at 251.
27 Id. at 249, 252.
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get out of audits. McConnaughey stated that Manager Allen set the audit schedule, but Talbert
and Christy came in early and left early before the auditors arrived. McConnaughey also
reported that Christy and Scheibe talked about Plaintiff’s attendance points and that
McConnaughey felt they were “passing judgment.”28 McConnaughey described Talbert as
“prejudice” in connection with “political issues,” explaining that he “becomes combative” if
someone does not agree with him.29 McConnaughey further stated that Talbert and Russell
Gibson, a production associate, had been friends, but after a political disagreement Talbert told
Gibson to “meet him after work,” and that Talbert’s “brotherhood of friends would handle it.”30
In McConnaughey’s deposition, she testified that Talbert drove a truck to the Topeka facility
with an American flag affixed on one side and a Confederate flag affixed on the other.
McConnaughey also testified that, on one occasion in 2018, Talbert brought a firearm to work
and was “waving it around at lunch.”31
In Haase’s handwritten statement, she stated that Christy had been walking past Haase’s
work area more frequently than usual and would stop briefly to watch what Haase was doing,
and that Neff questioned Haase about when Haase arrived at work and when she left for lunch.
In Cramer’s handwritten statement, Cramer stated that once he befriended Patton and
Plaintiff, Talbert stopped training Cramer even though Cramer was not ready to work on his
own, and that Talbert told him he needed to watch who he hung out with. Cramer also stated he
28 Id. at 253.
29 Id. at 254.
30 Id.
31 Id. at 96 (McConnaughey Dep. 33:18–25).
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witnessed Christy ask Scheibe if she wanted to report Haase and that the two agreed on a plan to
“tell on [Haase]” to Manager Allen.32
Hall’s handwritten notes from her interview with Llamas reflect that Llamas told Hall
that Scheibe and Christy acted as if they were managers or supervisors, watched other team
members, and seemed to be “spying” in order to “tattle” on other associates to Manager Allen,
and he stated it “feels like [Scheibe and Christy] only watch people of color.”33
Hall’s handwritten notes from her interview with Patton reflect that Patton told Hall that
he overheard Manager Allen tell Scheibe that he was “trying to save [her]” in connection with
the March 2022 break-use investigation, and Patton also stated that Scheibe continued to take
excessive breaks even after the March 2022 write-ups.34
Hall’s handwritten notes from her interview with Scheibe reflect that Scheibe stated that
Plaintiff “makes comments when he is upset—he blames it on his brown skin.”35
During Hall’s interview with Plaintiff, Plaintiff told Hall that he felt Neff would “throw
him under the bus,” that Neff was rude to him when he was training her, and that she had
something against him.36 Plaintiff also stated that Christy promoted a negative attitude and
watched others to report them, and that Plaintiff did not think Christy was an effective union
steward because her husband worked on the shift. Plaintiff did not mention Scheibe in his
interview other than to note that Scheibe asked him who he voted for in the 2020 presidential
election. Plaintiff further stated that, around the time of the 2020 presidential election, Talbert
32 Id. at 263.
33 Id. at 264.
34 Id. at 260.
35 Id. at 259.
36 Id. at 258.
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also asked him whom he had voted for or planned to vote for. Plaintiff responded that he was
not supporting President Donald Trump because he believed Trump was racist. Talbert then
asked Plaintiff whether he believed Talbert was racist.
Plaintiff also reported to Hall that Talbert told Plaintiff he should pay for Talbert’s gas
because of Plaintiff’s political vote and that Talbert made comments about being part of a
“brotherhood.”37 Plaintiff further described an incident from several years earlier in which
Talbert asked Gibson to “go outside” after a disagreement.38 In deposition testimony, Plaintiff
later testified that Talbert told him that Plaintiff should have to pay for the border wall, but
Plaintiff did not report that statement to Defendant. Plaintiff also testified that Talbert had
personal disagreements “with mostly everybody.”39
Hall completed her investigation in late May 2022 and concluded there was insufficient
evidence to substantiate that Talbert, Christy, Neff, and Scheibe engaged in the conduct alleged
by the May 4 Letter signees on the basis of race. Hall nevertheless determined that there were
instances of unprofessional and non-cooperative conduct across the fourth shift and submitted
her findings to Jose Lemus for review. In early June 2022, the fourth shift was verbally
instructed that associates needed to work together professionally and cooperatively. Talbert was
on approved leave from April 7, 2022 through June 18, 2022. When Talbert returned from leave
in late June 2022, Hall met with him and instructed him to behave professionally and
cooperatively with his peers.
After the May 4 Letter, Plaintiff continued to encounter the co-workers identified in the
complaints at work. Specifically, Plaintiff encountered Christy between May 23, 2022 and July
37 Id. at 257.
38 Id.
39 Doc. 38-3 at 36 (Plaintiff Dep. 314:23–24).
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31, 2022; Scheibe between August 24, 2022 and September 10, 2022; and Talbert between June
18, 2022 and July 9, 2022 and again between July 22, 2022 and July 31, 2022. However, after
the May 4 Letter, neither Plaintiff nor any other associate made additional reports to Defendant
of racially motivated behavior by Talbert, Christy, Scheibe, or Neff toward Plaintiff or anyone
else. Talbert and Patton were terminated in late July 2022. Neff resigned on May 16, 2022, and
Christy resigned on August 10, 2022. Anderson, Haase, Alexander, McConnaughey, and
Llamas, all signers of the May 4 Letter, either voluntarily resigned their employment or remain
employed by Defendant. Cramer accrued eight attendance points in May 2023 and was
terminated on May 31, 2023.
In November 2022, McConnaughey witnessed Enrique Estrella, a supervisor, tell
Plaintiff and Martin Marciel, a production associate, that they were “lazy spics.”40 Plaintiff and
Marciel, along with Steward Wilson, reported the comment to Manager Allen shortly thereafter.
According to McConnaughey, Estrella apologized, and it did not happen again.
D. Plaintiff’s Attendance Violations
In February 2017, Plaintiff received his only performance review. In that review,
Plaintiff’s then-supervisor, Patrick Johnson, rated him overall “effective” and noted that Plaintiff
understood his job, put good effort into his work, and had “no issues with attendance.”41 Later,
in 2020 and 2021, Plaintiff received four formal corrective actions under Defendant’s attendance
policy, including a final written warning in May 2021. On February 28, 2022, Supervisor
Henning issued Plaintiff a written attendance warning notifying him that he had accrued five
attendance points and identifying the dates and points accrued. Each attendance warning
40 Doc. 44 at 110 (McConnaughey Dep. 86:25–87:2).
41 Id. at 233.
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reminded Plaintiff that he could accrue only eight points in a twelve-month period and that
accruing eight points could result in termination. Plaintiff did not contest, challenge, or grieve
the accuracy of the 2020–2021 corrective actions or the February 28, 2022 warning.
During this period, the fourth shift work schedule was not consistently posted in advance.
At times, Manager Allen did not timely post updated schedules, older schedules remained
posted, and the posted schedule did not always reflect associates’ actual working hours. This
practice caused confusion about scheduled hours and contributed to attendance issues.
In May 2022, Plaintiff had accumulated 5.5 attendance points. That same month,
Defendant asked Plaintiff to temporarily transfer to the third shift to cover staffing needs and
train five newly hired Spanish-speaking employees, and Plaintiff agreed. Plaintiff received an
additional $1.00 per hour when assisting with that training. From May 23, 2022, through
September 10, 2022, Plaintiff worked on the third shift. During that period, Plaintiff requested
and was approved for leave under the Family and Medical Leave Act from July 31 to August 23,
2022. Thereafter, from October 23 through October 26, 2022, Plaintiff worked shifts other than
the fourth shift to cover staffing needs. Beginning in late spring 2022, Supervisor Henning was
also temporarily transferred to another shift due to staffing needs.
On or about October 19 or 20, 2022, Plaintiff approached Manager Allen and asked about
his total attendance-point accrual. Manager Allen then reviewed the attendance tracker for the
associates under his supervision and determined that Plaintiff had accrued more than eight
attendance points. Manager Allen informed Plaintiff that, based on his attendance-point accrual,
he was subject to termination. Manager Allen’s review also showed that another probationary
employee, Isiah Holz, had accumulated more than the maximum number of attendance points
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permitted during the probationary period. Before conducting this review, Manager Allen was
unaware that Plaintiff had accumulated eight or more attendance points.
Manager Allen directed that Holz be suspended pending management and human
resources review of his attendance. Rather than suspending Plaintiff and forwarding his
attendance for review, Manager Allen consulted with Hall, and they decided to give Plaintiff
another chance by issuing a final written warning. On November 1, 2022, Manager Allen met
with Plaintiff and issued him a final written warning stating that Plaintiff had accrued nine
attendance points and listing the dates on which the points were assessed. Steward Wilson was
present at the meeting, and Plaintiff had an opportunity to confer with Wilson. Plaintiff
protested the points Defendant claimed he had accrued, but he does not specify which dates in
the November 1, 2022 final written warning he believed were inaccurate. Plaintiff was most
adamant about a different written warning he received in June 2022, which he asserts contained
discrepancies, including a signature that was not his. Other than the signature, Plaintiff does not
identify any additional discrepancies regarding the June 2022 written warning.
The November 1, 2022 warning noted that several of Plaintiff’s attendance points would
roll off in January and February 2023, so long as Plaintiff did not incur additional attendance
violations. After receiving the November 1, 2022 final written warning, Plaintiff worked his
normal fourth-shift schedule from November 1, 2022, through December 6, 2022. On December
7, 2022, Plaintiff called Defendant more than an hour after the start of his shift and stated that he
had overslept. Defendant suspended Plaintiff pending review of his attendance. On December
9, 2022, Hall prepared a termination recommendation form and circulated it to plant manager
Lopez Velencia and corporate human resources personnel Jose Lemus and Elizabeth Rios. In
preparing the termination recommendation form, Hall did not review Plaintiff’s timekeeping
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records or otherwise investigate the accuracy or validity of Plaintiff’s attendance points.
Velencia, Lemus, and Rios reviewed Plaintiff’s attendance history and decided to terminate
Plaintiff, and Plaintiff was notified of his termination on December 15, 2022. After Plaintiff’s
separation, Defendant hired two individuals to join the fourth shift, and both remain employed by
Defendant.
On February 2, 2023, Plaintiff filed a charge of discrimination, which was dually filed
with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights
Commission (“KHRC”). The EEOC issued Plaintiff a Notice of Right to Sue on January 24,
2024.
III. Analysis
Plaintiff asserts identical claims under Title VII and the KAAD for race discrimination
(Count I), hostile work environment (Count II), and retaliation (Count III). Because the same
standards and burdens apply to claims under Title VII and the KAAD, the Court’s analysis
applies equally to Plaintiff’s Title VII and KAAD claims.42 Defendant moves for summary
judgment on all three claims, and the Court addresses each claim separately below.
A. Count I – Race Discrimination
In Count I, Plaintiff alleges that Defendant discriminated against him on the basis of race
when it terminated his employment. Title VII makes it unlawful for an employer to discharge or
discriminate against an employee based on his race, color, religion, sex, or national origin.43 A
plaintiff can prove a Title VII claim through “either direct evidence of discrimination or indirect
42 Singh v. Cordle, 936 F.3d 1022, 1037 (10th Cir. 2019) (“[W]e apply the same analysis to the Title VII
and KAAD claims.”).
43 42 U.S.C. § 2000e-2(a).
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evidence that satisfies the burden-shifting framework of McDonnell Douglas Corp. v. Green.”44
Here, Plaintiff offers no direct evidence of race-based discrimination. The Court therefore
evaluates Plaintiff’s claim under the McDonnell Douglas framework. Under this framework,
“[P]laintiff has the burden of presenting a prima facie case of discrimination.”45 If Plaintiff
meets his initial burden, then the burden shifts to Defendant to “articulate a legitimate, non-
discriminatory reason for its actions.”46 If Defendant meets its burden, then the burden shifts
back to Plaintiff to “prove the employer’s articulated reasons are pretextual.”47
1. Prima Facie Case
To establish a prima facie case of Title VII discrimination, a plaintiff who is a member of
a protected class must show that he experienced an adverse employment action “under
circumstances which give rise to an inference of unlawful discrimination.”48 In wrongful
termination cases, such as this one, a plaintiff may raise an inference of unlawful discrimination
by showing that: “(1) he belongs to a protected class; (2) he was qualified for his job; (3) despite
his qualifications, he was discharged; and (4) the job was not eliminated after his discharge.”49
Defendant does not dispute that Plaintiff can satisfy the first, third, and fourth elements of
his prima facie case. Defendant argues, however, that Plaintiff cannot satisfy the second element
because he was not “qualified” for his position in light of his attendance record and the accrual
of attendance points under Defendant’s no-fault attendance policy. However, Plaintiff’s burden
44 Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)).
45 Walkingstick Dixon v. Okla. ex rel. Reg’l Univ. Sys. of Okla. Bd. of Regents, 125 F.4th 1321, 1334 (10th
Cir. 2025) (quoting Throupe v. Univ. of Denver, 988 F.3d 1243, 1251 (10th Cir. 2021)).
46 Id. (quoting Throupe, 988 F.3d at 1251).
47 Id. (quoting Throupe, 988 F.3d at 1251).
48 Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000).
49 Id. at 1229; see also Walkingstick Dixon, 125 F.4th at 1335.
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at the prima facie stage is “not a heavy one.”50 In fact, the Tenth Circuit has held that a plaintiff
may “demonstrate [his] satisfactory performance simply by insisting that [he] was performing
satisfactorily.”51 Furthermore, “[t]he relevant inquiry at the prima facie stage is not whether an
employee . . . is able to meet all the objective criteria adopted by the employer, but whether the
employee has introduced some evidence that [he] possesses the objective qualifications
necessary to perform the job sought.”52
Applying that standard here, Plaintiff meets his prima facie burden. Plaintiff worked for
Defendant for more than eight years before his termination. The record reflects that Plaintiff
received only one performance review during his employment, and in that February 2017 review,
his supervisor rated him overall “effective” and noted that Plaintiff understood his job and put
good effort into his work.53 Plaintiff also points to evidence that Defendant selected him to
temporarily transfer to the third shift to cover staffing needs and assist with training newly hired
Spanish-speaking employees. On this record, Plaintiff has produced sufficient evidence of the
basic qualifications necessary to perform his production-associate role. Defendant’s argument
that Plaintiff was not qualified because his attendance points made him subject to termination
under Defendant’s policy is more appropriately addressed at the later stages of the McDonnell
Douglas analysis rather than used to defeat Plaintiff’s prima facie case.54
50 Brainerd v. Schlumberger Tech. Corp., 589 F. App’x 406, 410 (10th Cir. 2015).
51 Id.
52 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000).
53 Doc. 44 at 233.
54 See Horizon/CMS Healthcare Corp., 220 F.3d at 1194.
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2. Legitimate, Non-Discriminatory Reason for Termination
Because Plaintiff has established a prima facie case of race discrimination, Defendant
must articulate some legitimate, non-discriminatory reason for terminating Plaintiff’s
employment.55 Defendant’s burden at this stage is “exceedingly light,” and Defendant’s “stated
reasons need only be legitimate and non-discriminatory ‘on their face.’”56 Defendant asserts that
it terminated Plaintiff because he violated its no-fault attendance policy by accruing more than
the maximum number of attendance points permitted in a rolling twelve-month period. This
explanation is legitimate and nondiscriminatory on its face. Defendant has therefore met its
burden at the second step of the McDonnell Douglas framework.
3. Pretext
Lastly, to survive summary judgment, Plaintiff must create a genuine issue of material
fact as to whether Defendant’s reason for terminating his employment was pretextual.57 A
plaintiff may show pretext by demonstrating the “proffered reason is factually false,” or that
“discrimination was a primary factor in the employer’s decision.”58 This is often accomplished
by revealing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action [such] 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 reason.”59
55 Walkingstick Dixon, 125 F.4th at 1335.
56 DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017).
57 Tabor v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013).
58 Id.
59 Garrett v. Hewlett-Packard Co., 305 F.3d 1210 (10th Cir. 2002) (alteration in original) (quoting Morgan
v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
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Plaintiff argues Defendant’s proffered reason is false. In support of his pretext showing,
Plaintiff submits several weekly work schedules that list the hours employees were scheduled to
work. Plaintiff points to schedules indicating that he was marked as on vacation or scheduled to
be off on two of the dates listed in his November 1, 2022 final written warning, even though he
incurred attendance points on those dates, including one point for calling in and half a point for
clocking in late. Defendant responds that the schedules are immaterial because Plaintiff testified
that the schedules were unreliable. Specifically, Plaintiff testified that the schedules were “how
you would be aware of what hours you worked,” but it was “subject to change at any time.”60
Plaintiff explained that “it was a big issue, because you could see the schedule in the morning,
and it would have different times.”61 Plaintiff further testified that this would “cause a lot of
conflict,” because “a lot of times[,] Jerry didn’t—was not—would not update these every day,
every week.”62
At summary judgment, the Court cannot resolve the parties’ dispute about the reliability
of the schedules or draw credibility-based inferences from that evidence. “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”63 Viewing the evidence in the light most favorable
to Plaintiff, the weekly work schedules, together with his testimony regarding how schedules
were posted and updated, create a genuine dispute about whether Plaintiff in fact accrued the
points attributed to him on the dates identified in the November 1, 2022 final written warning
and, in turn, whether Defendant’s explanation that Plaintiff was terminated for violating the
60 Doc. 44 at 81 (Plaintiff Dep. 317:1–3).
61 Id. (Plaintiff Dep. 317:4–6).
62 Id. (Plaintiff Dep. 317:22–24).
63 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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attendance policy is worthy of belief. Accordingly, Defendant’s motion for summary judgment
on Count I is denied.
B. Count II – Racially Hostile Work Environment
In Count II, Plaintiff alleges that Defendant subjected him to a racially hostile work
environment. Defendant moves for summary judgment on this claim on two grounds: (1)
Plaintiff relies on incidents learned only through discovery and not known to him during the
period he alleges he experienced a hostile work environment; and (2) when the Court limits its
consideration to conduct Plaintiff personally experienced or contemporaneously knew about,
Plaintiff’s claim is untimely because he has not identified any act contributing to the alleged
hostile work environment that occurred within the 300-day charging period. The Court
addresses these issues in sequence.
First, the Court determines the proper scope of the hostile work environment claim by
considering only conduct Plaintiff experienced or knew about at the relevant time. The Court
then evaluates timeliness—whether at least one act falls within the limitations period and, if so,
whether the earlier incidents Plaintiff identifies are sufficiently related to the timely act to
constitute the same unlawful employment practice. Finally, after determining the scope of any
timely hostile work environment, the Court addresses whether the remaining conduct is
sufficiently severe or pervasive to support Plaintiff’s claim.
1. Experiences of Other Employees
In evaluating the scope of Plaintiff’s hostile work environment claim, the Court considers
“only evidence of comments or conduct relating to harassment of which plaintiff was aware
during the time that he was allegedly subjected to a hostile work environment.”64 In other words,
64 Frazier v. GPI KS-SH, Inc., No. 19-2020-JWL, 2020 WL 2523290, at *9 n.6 (D. Kan. May 18, 2020)
(emphasis added) (“[T]he court disregards certain evidence in the record from other employees about [the alleged
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Plaintiff cannot establish a claim for hostile work environment and survive summary judgment
by relying upon incidents that he did not have contemporaneous knowledge of at the time he
allegedly experienced the hostile work environment.
Here, in his summary judgment response, Plaintiff identifies a list of incidents that he
contends support his racially hostile work environment claim.65 Defendant responds that many
of the incidents Plaintiff cites are drawn from other employees’ complaints, interview statements,
or deposition testimony, and that Plaintiff has not shown he was aware of those incidents during
the period he alleges he experienced a hostile work environment. Consistent with the governing
standard, the Court addresses each incident below and determines whether it reflects conduct
Plaintiff contemporaneously knew about and experienced.
• Plaintiff first identifies an excerpt from McConnaughey’s March 29, 2022 written
statement, which describes that Patton, Jenkins, Haase, and Plaintiff’s break times
were being questioned. Plaintiff has sufficiently established his contemporaneous
awareness of this incident. The record reflects that Supervisor Henning informed
Plaintiff on March 24, 2022, that he was under investigation for his break usage and
that Plaintiff received a documented verbal warning on April 6, 2022, at the
conclusion of the investigation. The Court therefore considers this incident as part of
Plaintiff’s hostile work environment claim.
harasser’s] conduct because plaintiff has failed to produce evidence indicating that he himself had knowledge of that
conduct during his employment.”); Tademy v. Union Pac. Corp., 614 F.3d 1132, 1146 (10th Cir. 2008) (“Evidence
of a general work atmosphere, including evidence of harassment of other racial minorities, may be considered in
evaluating a claim, as long as [plaintiff] presents evidence that [s]he knew about the offending behavior.” (citation
modified)); Doe v. Hutchinson, 728 F. App’x 829, 833 (10th Cir. 2018) (“[Plaintiff] may rely on evidence that [the
alleged harasser] directed gender-based comments to other students to help establish a general atmosphere of
harassment provided she was aware of such conduct.” (citation modified)).
65 Doc. 42 at 32.
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• Plaintiff also relies on another portion of McConnaughey’s March 29, 2022 written
statement, which reports that Talbert was “asking [Plaintiff] about his political views”
and “asking him about who he voted for,” and that Talbert was “provoking” Plaintiff
because “Trump was firm on building the wall.”66 This incident, as described in
McConnaughey’s statement, involves Talbert’s comments directed at Plaintiff and
therefore reflects conduct Plaintiff would have contemporaneously experienced. The
Court therefore considers this evidence as part of Plaintiff’s hostile work environment
claim.
• Plaintiff next cites a segment of Anderson’s May 4, 2022 Speak Up complaint, which
asserts that Scheibe, Christy, Talbert, and Neff claimed that Patton, Alexander,
Plaintiff, Haase, Llamas, Cramer, McCall, and McConnaughey were “not in their
work area” in order to get them in trouble.67 Plaintiff cites no evidence showing that
he had contemporaneous knowledge that Scheibe, Christy, Talbert, or Neff made
these allegations during the period he claims he experienced a hostile work
environment. The Court therefore does not consider this incident in evaluating
Plaintiff’s hostile work environment claim.
• Plaintiff cites another excerpt from Anderson’s May 4, 2022 Speak Up complaint,
which asserts that Christy requested that Patton and Plaintiff not help her, and then
later complained that they did not help her. Plaintiff cites no evidence identifying
who Christy allegedly complained to, whether the complaint was made to Plaintiff or
to management, and if so, whether Plaintiff was contemporaneously aware of the
66 Doc. 44 at 238.
67 Id. at 230.
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alleged complaint. The Court therefore does not consider this incident as part of
Plaintiff’s hostile work environment claim.
• Plaintiff references another portion of Anderson’s May 4, 2022 Speak Up complaint,
which asserts that Talbert stated, “[i]f you don’t like my political views, my white
brothers and I will handle the situation,” and “[t]his is white man’s land before
anybody else’s land,” and that Talbert was part of an activist group he called his
“white brothers.”68 Plaintiff cites no evidence showing who these statements were
made to or that Plaintiff contemporaneously knew of them during the period he
alleges he experienced a hostile work environment. The Court therefore does not
consider this incident as part of Plaintiff’s hostile work environment claim.
• Plaintiff relies on his own deposition testimony and Hall’s handwritten notes from her
interview with him, in which Plaintiff explained that Talbert (1) made comments
about being part of a “brotherhood”;69 (2) told Plaintiff he should pay for Talbert’s
gas because of Plaintiff’s political vote; (3) told Plaintiff that Plaintiff should have to
pay for the border wall; and (4) told Gibson “let’s go outside” after a disagreement.70
Because these statements are drawn from Plaintiff’s own account of Talbert’s
comments, they reflect conduct Plaintiff would have contemporaneously experienced
and been aware of. The Court therefore considers this evidence as part of Plaintiff’s
hostile work environment claim.
68 Id. at 230–31.
69 Id. at 257.
70 Id.
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• Plaintiff next identifies an allegation from Anderson’s May 4, 2022 Speak Up
complaint, which stated that on April 30, 2022, Plaintiff was on vacation, but it was
not marked on the calendar, and that Scheibe and Christy went to Manager Allen to
“make [Plaintiff] get a point” and were upset when Plaintiff was not fired.71 Plaintiff
cites no evidence that he contemporaneously knew of Scheibe and Christy’s alleged
efforts or their reactions during the period he alleges he experienced a hostile work
environment. The Court therefore does not consider this incident as part of Plaintiff’s
hostile work environment claim.
• Plaintiff also cites a section of Cramer’s handwritten statement, prepared during
Hall’s investigation into the concerns raised in the May 4 Letter, which states that
after Cramer befriended Patton and Plaintiff, Talbert stopped training him even
though he was not ready to work on his own and told him he needed to watch who he
hung out with. Plaintiff cites no evidence that he was contemporaneously aware of
this interaction during the period he alleges he experienced a hostile work
environment. The Court therefore does not consider this incident.
• Plaintiff references a statement from Hall’s handwritten notes from her interview with
Llamas, which reflect that Llamas stated that it “feels like” Scheibe and Christy “only
watch people of color.”72 Plaintiff does not cite evidence that he contemporaneously
knew of Llamas’s interview statement itself. But Plaintiff and Llamas both signed the
May 4 Letter, which raised the same concern by referencing “[i]ncidences such as
71 Id. at 249.
72 Id. at 264.
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watching the only minorities on the team from a distance.”73 Given that shared
written complaint, the Court considers this evidence.
• Plaintiff cites Hall’s handwritten notes from her interview with Scheibe, in which
Scheibe stated that Plaintiff “makes comments when he is upset—he blames it on his
brown skin.”74 Plaintiff does not cite evidence that he was aware of this statement at
the time he alleges he experienced a hostile work environment. Because this
statement appears only in Hall’s interview notes and there is no evidence that it was
communicated to Plaintiff contemporaneously, the Court does not consider it.
• Plaintiff points to portions of McConnaughey’s deposition testimony, in which she
testified that Talbert drove a truck to Defendant’s Topeka facility with an American
flag affixed on one side and a Confederate flag affixed on the other, and that on one
occasion in 2018, Talbert brought a firearm to work and was “waving it around at
lunch.”75 Plaintiff cites no evidence that he was contemporaneously aware of either
incident during the period he alleges he experienced a hostile work environment. The
Court therefore does not consider this evidence as part of Plaintiff’s hostile work
environment claim.
• Finally, Plaintiff further cites McConnaughey’s deposition testimony that, in
November 2022, she witnessed Estrella tell Plaintiff and Marciel that they were “lazy
spics.”76 Because this comment was directed at Plaintiff, it reflects conduct Plaintiff
73 Doc. 38-16 at 2.
74 Doc. 44 at 259.
75 Id. at 96 (McConnaughey Dep. 33:18–25).
76 Id. at 110 (McConnaughey Dep. 86:25–87:2).
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would have contemporaneously experienced and been aware of. The Court therefore
considers this incident in evaluating Plaintiff’s hostile work environment claim.
Accordingly, in evaluating Plaintiff’s hostile work environment claim, the Court
considers only those incidents reflecting conduct Plaintiff knew about during the period he
alleges he experienced a hostile work environment. Those incidents are: (1) the questioning of
Plaintiff’s break time during the March 2022 break-use investigation; (2) McConnaughey’s
account of Talbert’s comments directed at Plaintiff about the border wall and Plaintiff’s political
views; (3) Talbert’s comments about being part of a “brotherhood”;77 (4) Talbert’s comment that
Plaintiff should pay for Talbert’s gas because of Plaintiff’s political vote; (5) Talbert’s statement
that Plaintiff should have to pay for the border wall; (6) Talbert’s “let’s go outside” comment
directed at Gibson;78 (7) the concern raised in the May 4 Letter referencing “[i]ncidences such as
watching the only minorities on the team from a distance;”79 and (8) McConnaughey’s testimony
that, in November 2022, Estrella directed a racial slur at Plaintiff and Marciel. The Court does
not consider the remaining incidents Plaintiff cites through Anderson’s complaint, other
employees’ statements, or McConnaughey’s deposition testimony because Plaintiff identifies no
evidence that he had contemporaneous knowledge of those incidents during the relevant period.
2. Timeliness
Having determined the scope of Plaintiff’s hostile work environment claim, the Court
turns next to whether it is untimely because Plaintiff has not identified any act contributing to the
alleged hostile work environment that occurred within 300 days before he filed his
administrative charge. “In states with a state agency that has authority over employment
77 Id. at 257.
78 Id.
79 Doc. 38-16 at 2.
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discrimination claims, including Kansas, employees have up to 300 days to file an EEOC charge
if they first file a charge with the state agency.”80 This requirement exists because “Title VII is
not intended to allow employees to dredge up old grievances.”81 “Unlitigated bygones are
bygones.”82 Claims that fall outside the 300 days are therefore time-barred.83
Discrete claims of discrimination or retaliation occur on the day the act happened, and
that must fall within the 300-day period to be actionable.84 But “[a] hostile work environment
claim is composed of a series of separate acts that collectively constitute one ‘unlawful
employment practice.’”85 Accordingly, “[a] charge alleging a hostile work environment
claim . . . will not be time barred so long as all acts which constitute the claim are part of the
same unlawful employment practice and at least one act falls within the time period.”86 In other
words, there must be a related series of events, and at least one of those events must fall within
the 300-day period before Plaintiff filed his EEOC charge.87 “[T]he obligation to demonstrate
timeliness in filing a charge is a condition precedent to suit and thus a burden for plaintiffs to
carry.”88
Here, Plaintiff filed his charge of discrimination with the EEOC and the KHRC on
February 2, 2023. Three hundred days before that date is April 8, 2022. Accordingly, to assert a
timely hostile work environment claim, Plaintiff must identify harassment occurring on or after
80 Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 628 (10th Cir. 2012).
81 Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005).
82 Id.
83 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
84 Id. at 110–13.
85 Id. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)).
86 Id. at 122.
87 See Duncan, 397 F.3d at 1309–10.
88 Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007).
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April 8, 2022. Acts occurring before April 8, 2022 may be considered only if they are part of the
same unlawful employment practice as at least one act within the limitations period.89
The record reflects only one alleged act occurring on or after April 8, 2022:
McConnaughey’s testimony that, in November 2022, Estrella directed a racial slur at Plaintiff
and Marciel. The break-time incident occurred in late March 2022, and Plaintiff received a
documented verbal warning on April 6, 2022—two days outside the limitations period. Talbert’s
comments directed at Plaintiff about the border wall and Plaintiff’s political views are reflected
in McConnaughey’s March 29, 2022 written statement, indicating it occurred no later than that
date—also outside the limitations period. Furthermore, Plaintiff does not identify when Talbert
told him he should pay for Talbert’s gas because of Plaintiff’s political vote or when Talbert
referenced a “brotherhood.”90 Plaintiff discussed the “let’s go outside” incident during his May
11, 2022 interview with Hall, but the record indicates that event occurred several years before
the interview.91 Plaintiff also testified that Talbert told him he should have to pay for the border
wall, but Plaintiff does not identify when Talbert made that statement. And although the May 4
Letter includes the “watching the only minorities” allegation, the letter itself does not identify
when that conduct occurred or point to any specific incident on or after April 8, 2022.92 In short,
Plaintiff has not shown that any of the spring 2022 incidents occurred within the limitations
period, and the only timely act he identifies is Estrella’s use of a racial slur in November 2022.
Because Plaintiff has identified at least one act within the limitations period, the
timeliness inquiry turns on whether the pre-April 8, 2022 incidents Plaintiff relies on are
89 See Morgan, 536 U.S. at 122.
90 Doc. 44 at 257.
91 Id.
92 Doc. 38-16 at 2.
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sufficiently related to the November 2022 Estrella incident to be considered part of the same
unlawful employment practice.93 Thus, the Court will first determine whether the pre-April 8,
2022 incidents are sufficiently related to the November 2022 incident to fall within the same
hostile work environment. Once the scope of the claim is determined, the Court will then
evaluate the merits of Plaintiff’s hostile work environment claim based on the conduct that is not
time-barred.
“To determine whether these acts are part of the same hostile work environment, Morgan
advises looking at the type of these acts, the frequency of the acts, and the perpetrator of the
acts.”94 Although uniformity of “type, frequency, and perpetrator” is not a “per se requirement,”
the acts must be “sufficiently related to constitute the same employment practice.”95
Applying this standard here, no jury could reasonably conclude that the pre-April 8, 2022
incidents and Estrella’s use of a racial slur in November 2022 are part of the same hostile work
environment. As to type, the pre-April 8, 2022 incidents involve the questioning of Plaintiff’s
break usage during the March 2022 break-use investigation, Talbert’s political comments to
Plaintiff, and the concern raised in the May 4 Letter that certain fourth-shift co-workers were
watching the only minorities on the shift to get them in trouble. By contrast, the November 2022
incident involves a supervisor’s use of a racial slur directed at Plaintiff.
As to frequency, the pre-April 8 incidents for which Plaintiff can identify an approximate
date are clustered in late March and early April 2022. Plaintiff does not identify a continuing
series of race-based acts in the months that followed. Instead, the only act he points to after
April 8, 2022 is Estrella’s use of a racial slur in November 2022, and the record reflects that this
93 Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1309–10 (10th Cir. 2005).
94 Id. at 1309 (citing Morgan, 536 U.S. at 120).
95 Tademy v. Union Pac. Corp., 614 F.3d 1132, 1140, 1143 (10th Cir. 2008).
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occurred only once. The roughly seven-month gap between the pre-April 8, 2022 events and the
November 2022 incident undermines any inference that these acts were part of one ongoing
hostile work environment.
As to the perpetrators, the pre-April 8, 2022 conduct centers on Plaintiff’s fourth-shift co-
workers—particularly Talbert, and also Christy, Scheibe, and Neff. By contrast, the November
2022 incident involves a different actor altogether: Estrella, a supervisor. Plaintiff identifies no
evidence that Estrella was involved in, aware of, or connected to the pre-April 8, 2022 conduct
Plaintiff attributes to Talbert, Christy, Scheibe, and Neff, or that Estrella otherwise contributed to
the earlier incidents Plaintiff cites.
Accordingly, no reasonable jury could find that Estrella’s November 2022 use of a racial
slur is sufficiently related in type, frequency, or perpetrator to the pre-April 8, 2022 incidents.
Those pre-April 8, 2022 incidents are therefore time-barred.
3. Merits of Timely Racially Hostile Work Environment Claim
Having concluded that the pre-April 8, 2022 incidents are time-barred, the Court next
evaluates whether the November 2022 incident involving Estrella, standing alone, is sufficient to
establish a racially hostile work environment. Title VII makes it unlawful for an employer to
discharge or discriminate against an employee based on his race, color, or national origin.96
“This includes an employee’s claims of a hostile work environment based on race.”97 To survive
summary judgment on a claim alleging a hostile work environment based on race, Plaintiff “must
show that a rational jury could find that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
96 42 U.S.C. § 2000e-2(a).
97 Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (quoting Herrera v. Lufkin
Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007)).
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the victim’s employment and create an abusive working environment” and that Plaintiff “was
targeted for harassment because of [his] race.”98 “The applicable test for a hostile work
environment has both objective and subjective components.”99 The Court must consider “both
whether [Plaintiff] was offended by the work environment and whether a reasonable person
would likewise be offended.”100 Both must be proved.101 In determining whether a work
environment is hostile, courts look at factors such as “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”102
Plaintiff’s claim falls far short of meeting that standard. The Tenth Circuit has
“repeatedly held that, in establishing a hostile-work-environment claim, plaintiffs must do more
than point to ‘sporadic racial slurs’; they must present evidence of ‘a steady barrage of
opprobrious racial comments.’”103 Here, as discussed above, the only timely incident Plaintiff
identifies is Estrella’s use of a racial slur directed at Plaintiff, and the record reflects that this was
an isolated incident that did not recur. As the Tenth Circuit has reasoned, Estrella’s “singular
racial epithet could have no more than minimal polluting effect, and it certainly falls ‘far short’
of establishing [Plaintiff’s] hostile-work-environment claim.”104 Accordingly, the Court grants
Defendant’s motion for summary judgment on Count II.
98 Id.
99 Id.
100 Id.
101 Id.
102 Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
103 Young v. City of Idabel, 721 F. App’x 789, 801 (10th Cir. 2018) (first citing Bolden v. PRC, Inc., 43
F.3d 545, 551 (10th Cir. 1994); and then citing Lounds v. Lincare, Inc., 812 F.3d 1208, 1223 (10th Cir. 2015)).
104 Id. (quoting Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005)).
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C. Count III – Retaliation
In Count III, Plaintiff alleges that Defendant retaliated against him for engaging in
protected opposition to race discrimination by temporarily transferring him to the third shift and
later terminating his employment. Title VII makes it unlawful to retaliate against an employee
because the employee opposed an employment practice made unlawful by Title VII, or because
the employee “participated . . . in an investigation, proceeding, or hearing.”105 To prevail on a
Title VII retaliation claim, Plaintiff “may offer direct evidence that retaliation played a
‘motivating part’ in the adverse employment decision.”106 Alternatively, in the absence of direct
evidence of retaliation, the Court assesses retaliation claims under the McDonnell
Douglas burden-shifting framework.107 Again, under this framework, Plaintiff has the initial
burden of establishing a prima facie case for retaliation.108 Then, Defendant has the burden to
articulate a legitimate, non-discriminatory, and non-retaliatory reason for the adverse action.109
Finally, Plaintiff has the burden to show there is a genuine issue of material fact as to whether
Defendant’s proffered reason is pretextual.110
Here, Plaintiff offers no direct evidence of Defendant’s retaliation. Therefore, the
McDonnell Douglas framework applies. To state a prima facie Title VII retaliation claim,
“[P]laintiff must show (1) that [he] engaged in protected opposition to discrimination, (2) that a
105 42 U.S.C. § 2000e-3(a).
106 Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016).
107 Id.
108 Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017).
109 Id.
110 Id.
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reasonable employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse action.”111
Plaintiff identifies two instances of protected opposition: signing the May 4 Letter and
reporting the racially derogatory comment attributed to Estrella in November 2022. Plaintiff also
relies on two alleged adverse actions: his temporary transfer to the third shift and his termination.
Defendant does not dispute that Plaintiff engaged in protected opposition or that Plaintiff’s
termination was materially adverse. Instead, Defendant argues Plaintiff cannot establish a prima
facie retaliation claim because the temporary transfer was not materially adverse and because
Plaintiff cannot show a causal connection between any protected activity and his termination.
The Court addresses each argument in turn.
1. Materially Adverse
The Court turns first to whether Plaintiff has produced evidence that his temporary
transfer to the third shift would have been materially adverse to a reasonable employee. “An
action is materially adverse if it is sufficiently severe or pervasive that it could well dissuade a
reasonable worker from engaging in protected activity.”112 “While the employer’s conduct need
not affect the terms and conditions of employment, the inquiry is an objective one, and not based
on a ‘plaintiff’s personal feelings.’”113 In addition, “reassignment of job duties is not
automatically actionable. Whether a particular reassignment is materially adverse depends upon
the circumstances of the particular case, and ‘should be judged from the perspective of a
111 Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019) (quoting Khalik v. United Air Lines, 671 F.3d
1188, 1193 (10th Cir. 2012)).
112 Kincaid v. Unified Sch. Dist. No. 500, Kansas City, Kansas, 645 F. Supp. 3d 1134, 1162 (D. Kan. 2022)
(citation modified).
113 Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012) (quoting Semsroth v. City of
Wichita, 555 F.3d 1182, 1184 (10th Cir. 2009)) (citation omitted).
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reasonable person in the plaintiff’s position, considering ‘all the circumstances.’”114 Consistent
with this standard, “‘a mere inconvenience or an alteration of job responsibilities’ will not
suffice.”115
Plaintiff has not met his burden to produce evidence that his temporary transfer was
materially adverse. Although Plaintiff characterizes the transfer as involuntary, the
uncontroverted facts show that Defendant asked Plaintiff to temporarily transfer to the third shift
to cover staffing needs and to assist with training newly hired Spanish-speaking employees, and
Plaintiff agreed. Plaintiff has not produced evidence that the transfer was a demotion, that his
position as a production associate materially changed, or that the transfer reduced his
compensation, benefits, grade level, pay, or title, or otherwise made his work materially more
arduous. To the contrary, the record reflects that Plaintiff was paid an additional $1.00 per hour
when assisting with training on the third shift.
Plaintiff also fails to cite evidence from which the Court could infer that the transfer
required him to “rearrange his daily life, to include making new childcare and transportation
arrangements, in addition to seeing his . . . family less,” or that the “third shift operates at a much
faster pace and enjoys less freedom and discretion than fourth shift.”116 Plaintiff’s unsupported
assertions in his response brief are insufficient to satisfy his burden of production at summary
judgment. And the uncontroverted evidence that the third and fourth shifts overlapped by
approximately 2.5 hours further undercuts Plaintiff’s claim that the temporary reassignment
imposed the sort of significant disruption that would dissuade a reasonable employee from
114 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
115 Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010) (quoting Annett
v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004)).
116 Doc. 42 at 36.
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engaging in protected activity. At most, Plaintiff’s temporary transfer reflects “a mere
inconvenience or an alteration of job responsibilities.”117 Absent any other evidence of
materiality, Plaintiff has not shown that his temporary transfer was materially adverse.
Defendant is therefore entitled to summary judgment on Plaintiff’s retaliation claim to the extent
it is based on Plaintiff’s temporary transfer to the third shift.
2. Causal Connection
The Court next turns to Defendant’s argument that Plaintiff cannot establish the causal
connection element of his prima facie case for retaliation based on his termination. A plaintiff
may show a causal connection by presenting evidence that the “temporal proximity between
protected conduct” and the materially adverse action “justif[ies] an inference of retaliatory
motive.”118 “[A] one and one-half month period between protected activity and adverse action
may, by itself, establish causation,” however, “a three-month period, standing alone, is
insufficient.”119 Moreover, “a plaintiff who seeks to show causation [with temporal proximity
evidence] still must present evidence that the decisionmakers knew of the protected conduct.”120
“An employer’s action against an employee cannot be because of that employee’s protected
opposition unless the employer knows the employee has engaged in protected opposition.”121
“Plaintiff must therefore point to evidence that those who acted against him knew of his formal
complaints.”122
117 Reinhardt, 595 F.3d at 1133 (quoting Annett, 371 F.3d at 1239).
118 Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006) (quoting Haynes v.
Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006)).
119 Walkingstick Dixon v. Okla. ex rel. Reg’l Univ. Sys. of Okla. Bd. of Regents, 125 F.4th 1321, 1339 (10th
Cir. 2025) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)).
120 Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019).
121 Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002).
122 Singh, 936 F.3d at 1043.
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Recall that Plaintiff relies on two instances of protected opposition: (1) signing the May 4
Letter; and (2) reporting the racially derogatory comment attributed to Estrella in November
2022. The Court addresses the causal connection between each protected act and Plaintiff’s
termination in turn.
With respect to the May 4 Letter, Plaintiff was notified of his termination on December
15, 2022, more than seven months after he signed the May 4 Letter. Given that lapse of time,
temporal proximity is insufficient to support an inference of retaliatory motive. Plaintiff
therefore must come forward with other admissible evidence from which a reasonable jury could
find a causal connection between the May 4 Letter and his termination.123
Plaintiff argues the time gap is explained because he was temporarily working the third
shift and therefore was “out of sight, out of mind” to Manager Allen, and that he was terminated
only after returning to the fourth shift and becoming visible to Manager Allen again.124
However, the record does not support a reasonable inference of causation on that theory. To
123 In support of his causal-connection argument, Plaintiff contends Defendant treated attendance-point
violations differently depending on whether an associate signed the May 4 Letter. Specifically, Plaintiff argues
Defendant “suddenly” terminated him because he was a signer of the May 4 Letter, while not terminating non-
signers who allegedly accrued more than eight points. Doc. 42 at 38. To illustrate this, Plaintiff cites
McConnaughey deposition testimony that another production associate, Josh Sawyer, who did not sign the May 4
Letter, “brag[ged]” about accruing more than eight attendance points without being terminated. Doc. 44 at 100
(McConnaughey Dep. 49:8–15). Plaintiff also cites his own deposition testimony that he heard Sawyer tell someone
in the locker room that he had accrued more than eight points. Id. at 65 (Plaintiff Dep. 253:2–25).
Defendant objects that these statements are hearsay. The Court agrees the testimony recounts out-of-court
statements offered for their truth, but because Sawyer was an employee of Defendant and the statements appear to
have been made within the scope of his employment with Defendant, they fall within the opposing-party statement
exclusion under Fed. R. Evid. 801(d)(2)(D). Nonetheless, the testimony is irrelevant to causation. Plaintiff relies
solely on his and McConnaughey’s perceptions regarding Sawyer’s attendance points, and he offers no record
evidence establishing that Sawyer actually accrued more than eight points in 2022 without being terminated.
Defendant, by contrast, has produced evidence reflecting that Sawyer did not accrue eight or more points in 2022
and was terminated in 2023 when he did exceed eight attendance points. Accordingly, Plaintiff’s and
McConnaughey’s testimony about their perceptions of Sawyer’s points is not probative of causation, and the Court
does not consider it. Fed. R. Evid. 402; Wright–Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir.
1998) (“[W]e can consider only admissible evidence in reviewing an order granting summary judgment.”).
124 Doc. 42 at 37.
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begin with, Manager Allen was not the decision-maker who terminated Plaintiff. Rather,
Plaintiff approached Manager Allen in October 2022 to inquire about his attendance points,
which prompted Manager Allen to review the attendance tracker for all production associates.
Even after discovering that Plaintiff had accrued more than eight attendance points, Manager
Allen did not recommend that Plaintiff be terminated; instead, Manager Allen and Hall decided
to give Plaintiff another chance and issued him a final written warning. Only after Plaintiff
incurred another unexcused absence on December 7, 2022 was Plaintiff suspended and
recommended for termination to Velencia, Lemus, and Rios—the plant manager and human
resources personnel who were the ultimate decision-makers.
On this point, Plaintiff also fails to identify evidence from which a reasonable jury could
find that Velencia, Lemus, or Rios knew Plaintiff engaged in protected activity by signing the
May 4 Letter when they approved his termination. In an effort to prove such knowledge,
Plaintiff relies first on Anderson’s Speak Up complaint, which was emailed to Lemus with Rios
carbon copied. But Anderson’s complaint does not reference the May 4 Letter at all, much less
state that Plaintiff signed it. Second, Plaintiff cites Hall’s deposition testimony that Lopez
Velencia, as plant manager, was “always notified of any termination or investigations that [were]
happening within the plant.”125 However, notice that an investigation was occurring does not
establish knowledge that Plaintiff engaged in protected activity by signing the May 4 Letter. As
such, Plaintiff has not identified evidence from which a reasonable jury could find that Velencia,
Lemus, or Rios knew Plaintiff signed the May 4 Letter when they approved his termination.
As to Plaintiff’s November 2022 complaint, the record reflects that sometime in
November 2022, McConnaughey witnessed Estrella refer to Plaintiff and Marciel as a racial slur,
125 Doc. 44 at 136 (Hall Dep. 28:14–17).
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and that Plaintiff, Marciel, and Steward Wilson reported the comment to Manager Allen shortly
after it occurred. Although the record does not reflect the precise date of this report, the
evidence indicates it occurred sometime in November 2022, and Plaintiff was notified of his
termination on December 15, 2022. Viewing the evidence in the light most favorable to
Plaintiff, that temporal proximity is sufficiently close to permit an inference of retaliatory motive
at the prima facie stage. However, Plaintiff must still present some evidence that the relevant
decision-makers knew of his complaint,126 and he identifies none. Plaintiff has not produced any
evidence that Velencia, Lemus, or Rios were aware of Plaintiff’s report regarding Estrella’s
comment when they reviewed Plaintiff’s attendance history and approved termination. Because
Plaintiff has not produced evidence that the individuals who approved his termination knew of
either protected activity, he has not established the causation element of his prima facie
retaliation claim. Accordingly, the Court grants Defendant’s motion for summary judgment on
Count III.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 37) is granted in part and denied in part. Defendant’s motion for
summary judgment with respect to Count I is denied. Defendant’s motion for summary
judgment with respect to Counts II and III is granted.
IT IS SO ORDERED.
Dated: February 17, 2026
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
126 Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019).
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