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Mitchell v. Compass Group USA, Inc.

United States District Court, Tenth Circuit

July 11, 2013

LEVELL E. MITCHELL, Plaintiff,
v.
COMPASS GROUP USA, INC., Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

Plaintiff Levell E. Mitchell (“Mitchell”) brings claims against his former employer for disability discrimination and retaliation in violation of the Americans with Disabilities Act of 1990 (“ADA”)[1] and Title VII of the Civil Rights Act of 1974.[2] Mitchell alleges that Defendant, Compass Group USA, Inc. (“Compass”), terminated his employment because of his disability. Mitchell further alleges that his complaint to a supervisor of sexual harassment incited Compass to terminate his employment. Compass now moves for dismissal of Mitchell’s disability discrimination claim for lack of subject matter jurisdiction. Compass also moves for summary judgment on Mitchell’s retaliation claim. For the reasons stated below, the Court grants both of Defendant’s motions.

I. Factual and Procedural Background[3]

Mitchell began working for Compass, a foodservice provider, as a “prep cook” in June 2008 at the Zurich Insurance facility in Overland Park, Kansas. In July 2010, Compass promoted Mitchell to “grill cook” at the Zurich site. On September 1, 2010, Mitchell ran out of potatoes fifteen minutes before the cafeteria breakfast line closed. Philippe Lechevin, Mitchell’s supervisor, asked Mitchell why he ran out of potatoes and instructed Mitchell that he should not run out of potatoes before the breakfast line closed. Mitchell responded that he had run out of customers, not potatoes.

Lechevin told Mitchell that he was being insubordinate and that Lechevin would write Mitchell up. Mitchell countered that if Lechevin wrote him up, he would inform Lechevin’s supervisor of Lechevin’s poor performance and of the “cat calls” that Lechevin made to a female co-worker, Mercedes Rubio. Later that day, Brett Downing, Compass’s District Manager, came to the Zurich site and informed Mitchell that Lechevin had an insubordination write-up for Mitchell to sign. Mitchell reported to Downing that Lechevin was performing poorly and that Lechevin made “cat calls” to Rubio. Mitchell further described that Lechevin called Rubio “hot mama, ” and that Lechevin and Rubio gave each other prolonged attention. But Mitchell explained that the circumstances did not seem to bother Rubio because she benefitted professionally. Downing suspended Mitchell to investigate further, and Compass terminated Mitchell the next day for insubordination.

On September 29, 2010, Mitchell filed a charge of discrimination with the EEOC and the Kansas Human Rights Commission (“KHRC”). In the charge, Mitchell marked boxes next to “Race, ” “Retaliation, ” and “Sex” discrimination. In the narrative portion of his charge, Mitchell states, “I believe I was suspended and discharged because of my race, black, sex, male, and for reporting sexual harassment.”[4] In January 2011, the KHRC received Mitchell’s administrative complaint, in which Mitchell alleged, “I was suspended and terminated due to my race, African American, my sex, male, and as acts of retaliation for having openly opposed acts and practices forbidden by the Kansas Act Against Discrimination.”[5]

Mitchell alleges that he received a “Notice of Right to Sue” and accordingly filed this action, proceeding pro se, seeking to recover on claims of disability discrimination and retaliation. Compass now moves for dismissal of Mitchell’s disability discrimination claim and summary judgment on Mitchell’s retaliation claim.

II. Legal Standards A. Dismissal for Lack of Subject Matter Jurisdiction

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move for the dismissal of any claim when the court lacks subject matter jurisdiction.[6] Federal courts are courts of limited jurisdiction.[7] A federal court cannot obtain jurisdiction over a suit brought under Title VII or the ADA unless the plaintiff first exhausts administrative remedies for each discrete discriminatory and retaliatory act.[8] If the plaintiff does attempt to obtain administrative relief by first filing a complaint with the EEOC, the court's jurisdiction is limited to issues that are reasonably expected to arise from the claims filed with the EEOC.[9] The burden of proof is on the plaintiff to allege sufficient facts that he or she exhausted the applicable administrative remedies.[10]

B. Summary Judgment

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[11]A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party’s favor.[12] The movant bears the initial burden of proof, and must show the lack of evidence on an essential element of the claim.[13] The nonmovant must then bring forth specific facts showing a genuine issue for trial.[14] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits—conclusory allegations alone cannot survive a motion for summary judgment.[15] The court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[16]

C. Pro se Litigants

The Court must take additional precautions before ruling on a dispositive motion against a pro se litigant.[17] “A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”[18] However, “it is not the proper function the district court to assume the role of advocate for the pro se litigant.”[19] Even ...


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