The opinion of the court was delivered by: Carlos Murguia United States District Judge
Plaintiff Bill Hopson brings this race discrimination case against his former employer, defendant Deffenbaugh Disposal Service, Inc., pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. Plaintiff, a black man, claims that defendant (1) subjected him to a hostile work environment, (2) treated him differently than his non-black co-workers, including terminating him, and (3) retaliated against him. The case is before the court on Defendant's Motion for Summary Judgment (Doc. 106) and Plaintiff's Motion for Summary Judgment (Doc. 108).
I. Factual Background*fn1
Defendant hired plaintiff in 2003 as an outside lube technician in defendant's truck shop.
Robert Pickens, a supervisor in the truck shop, interviewed and hired plaintiff. Mr. Pickens supervised plaintiff for the duration of his employment-until he terminated plaintiff on May 10, 2006.
During all relevant times, plaintiff worked with Jim Huntington, another lube technician who previously was incarcerated with plaintiff at Lansing Correctional Facility. Mr. Huntington is white.
Plaintiff claims that Mr. Pickens engaged in a number of acts targeted at plaintiff because he was black, including using vulgar hand gestures, flipping cigarettes at him, putting lit cigarettes in plaintiff's pockets, tossing plaintiff's paycheck on the floor and stomping on it, using derogatory terminology to refer to Martin Luther King Day, and throwing coffee on plaintiff on April 18, 2006.
After Mr. Pickens threw coffee on plaintiff, plaintiff completed an incident report. The incident report does not reference race or allege that Mr. Pickens's act was racially discriminatory. Mr. Pickens was aware that plaintiff prepared a written incident report and that plaintiff discussed the incident with Beverly Taylor, an administrative assistant to Mr. Pickens's supervisor. But Mr. Pickens was unaware that plaintiff allegedly made any complaint related to race.
On the day that Mr. Pickens terminated plaintiff's employment, Mr. Pickens had been looking for plaintiff and was unable to find him. Over a one-to-two hour period, Mr. Pickens went to plaintiff's work station on multiple occasions. Each time, Mr. Huntington told Mr. Pickens that he did not know where plaintiff was. When Mr. Pickens located plaintiff, he told him that he had been gone from his work area too long. Plaintiff responded by arguing and telling Mr. Pickens that if he had a problem with him going to the restroom too much, they could go down to the office. Mr. Pickens replied, "No[,] you can go down and talk to somebody in the office. As far as I'm concerned, you're fired."
The next day, Mr. Pickens prepared the necessary Personal Action Form, stating, "Not in work area when he is supposed to be. Can't find him for hour at a time, ongoing for a long time. Always offensive when asked about where he has been."
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The filing of cross-motions for summary judgment does not change the standard of review. James Barlow Family Ltd. P'ship v. David M. Munson Inc., 132 F.3d 1316, 1319 (10th Cir. 1997) ("Where, as here, the parties file cross motions for summary judgment, we ...