Wayne A. Cotton, Plaintiff,
Costco Wholesale Corporation, Defendant.
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff Wayne A. Cotton filed this lawsuit against his employer Costco Wholesale Corporation ("Costco") asserting claims of racial harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq. This matter is presently before the court on Costco's motion for summary judgment on all claims (doc. 60). As explained below, the motion is granted.
The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendant Costco Wholesale Corporation ("Costco") operates "cash and carry" membership warehouse stores which sell merchandise to businesses and individual members. Costco operates a warehouse located in Overland Park, Kansas. Plaintiff Wayne Cotton is an African-American male who began his employment with Costco on November 30, 2010 as a Loss Prevention Clerk at the Overland Park, Kansas warehouse. As a Loss Prevention Clerk, Mr. Cotton was responsible for walking the warehouse and perimeter up to 8 hours a day to monitor safety and security concerns, including detaining and interviewing shoplifters when warranted. At all times relevant to this lawsuit, Tom Sadler was the General Manager of the Overland Park, Kansas warehouse; Linda Swarts was the Administration Manager at the warehouse; and Kim Drew was the Regional Loss Prevention Manager for Costco.
Shortly after Mr. Cotton began his employment, Ms. Swarts observed, according to her testimony, that Mr. Cotton engaged in excessive socializing, particularly at the wireless kiosk and in the Major Sales department, and that he frequently talked on his personal cellular phone for lengthy periods of time. Mr. Cotton contends that he worked "undercover" and often acted like he was talking on his phone. He further contends that he spoke with his coworkers about Loss Prevention issues as per his job duties. Whatever the merit, it is undisputed that Ms. Swarts frequently reprimanded Mr. Cotton for socializing and using his personal cellular phone. Mr. Cotton complained to Mr. Sadler that he felt "harassed" by Ms. Swarts. Mr. Sadler spoke with Ms. Swarts and he testified that he handled the situation to his satisfaction. According to Mr. Cotton, Ms. Swarts and other managers "harassed" him about socializing, talking on his phone and related issues three to four times per month while he worked in Loss Prevention and they frequently "blew his cover" by talking to him about these issues.
During the first 90 days of his employment, Mr. Cotton observed a young woman putting unpaid candy and cookies into a bag and he alerted Mr. Sadler. Mr. Sadler spoke with the young woman and her mother. Mr. Sadler determined that the woman was mentally disabled and her mother apologized for the incident and paid for the merchandise. On another occasion, an African-American cashier contacted Mr. Cotton about two members who appeared to be leaving the warehouse without scanning all their items for purchase. Mr. Cotton detained the members at the exit and discovered that the members had approximately $370 worth of items in their cart that had not been purchased. Mr. Cotton detained the members and contacted Mr. Sadler, whereupon the members became upset and referred to Mr. Cotton and the African-American cashier, in the presence of Mr. Sadler, as "black monkeys" and "niggers." Ultimately, Mr. Sadler determined that the members had not attempted to steal any merchandise and that the cashier had mistakenly failed to ring up all of the items in the members' shopping cart.
By the end of March 2011, Mr. Cotton did not apprehend any shoplifters in the warehouse other than the two incidents described above. According to Mr. Sadler, Costco management was still discovering empty product packages in the warehouse, indicating to him that "shrinkage of product" (losses from shoplifting) was nonetheless occurring. On March 31, 2011, Mr. Sadler met with Mr. Cotton and advised him that he had decided to eliminate the Loss Prevention Clerk position from the warehouse because he did not feel it was cost effective to continue having a Loss Prevention Clerk at the warehouse. Mr. Cotton contends that Mr. Sadler did not provide him with a reason as to why he was eliminating the position. In any event, Mr. Sadler advised Mr. Cotton that he would be moved to a position at the front-end of the warehouse with no loss in pay or benefits.
In early April 2011, Mr. Cotton began working as a cashier's assistant. One of the duties of a cashier's assistant is to retrieve shopping carts from the parking lot, but Mr. Cotton contends that the requirement was a form of harassment intended to humiliate Mr. Cotton. Shortly after his transfer, Mr. Cotton complained vigorously to Mr. Sadler about his perception that Ms. Swarts was harassing him (including by requiring him to retrieve shopping carts) and he complained to Ms. Drew about the decision to eliminate the Loss Prevention position. Mr. Sadler and Ms. Drew agreed that Mr. Cotton should receive additional training in loss prevention. Mr. Sadler advised Mr. Cotton that he would remain in the Loss Prevention position and that he would be traveling to Chicago for additional training. On April 11, 2011, after Mr. Cotton was reinstated to the Loss Prevention position, he filed a charge of discrimination with the EEOC alleging that he was subjected to harassment and that he was demoted from his loss prevention position on the basis of his race.
Mr. Cotton received additional training over the course of three days in early May 2011. Nonetheless, Mr. Cotton did not apprehend any shoplifters from the time he was reinstated to the Loss Prevention position until July 2012. Mr. Cotton contends that this failure was directly related to management's interference with his job duties. In July 2012, Mr. Sadler again decided to eliminate the Loss Prevention position. According to Mr. Sadler, he did so because Mr. Cotton had not apprehended a single shoplifter in the prior 15 months; because there appeared to be no change in the amount of theft at the warehouse since Mr. Cotton had been hired; and because there were payroll budgetary concerns and a focus on trimming expenses. Mr. Cotton contends that the position was eliminated in light of Mr. Cotton's continued complaints to Mr. Sadler and others about race discrimination in the workplace. Costco never filled the position after removing Mr. Cotton from the position and to this day there is no Loss Prevention Clerk position at the warehouse in Overland Park.
Mr. Sadler offered Mr. Cotton the option of working the warehouse floor or working on the front end as a cashier assistant. Mr. Cotton chose the cashier assistant position and his pay and benefits were unchanged. In August 2012, Mr. Cotton filed a second charge of discrimination alleging he was removed from the Loss Prevention job in July 2012 and placed into the cashier assistant position in retaliation for his first charge of discrimination. Coscto continues to employ Mr. Cotton in the cashier assistant position. He has not applied for any other positions in the warehouse and he has not signed up for supervisor training.
Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.
II. Summary Judgment Standard
"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the ...