United States District Court, D. Kansas
ELVIS J. GRUBBS, Plaintiff,
THE SALVATION ARMY, Defendant.
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Plaintiff Elvis Grubbs, who is pro se in this action, brings this employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Plaintiff alleges that the Salvation Army gave him unfavorable work assignments and unlawfully terminated his employment as a thrift store clerk based on his race,  gender, and age. Plaintiff has filed a Motion for Summary Judgment (Doc. 24) under Fed.R.Civ.P. 56. The Salvation Army has filed its own Motion for Summary Judgment (Doc. 26). Both parties have filed responses (Docs. 30, 34). For the reasons explained below, the Court denies plaintiff's Motion for Summary Judgment and grants the Salvation Army's Motion for Summary Judgment.
I. Uncontroverted Facts
Our local Rule 56.1 governs motions for summary judgment in this district. Rule 56.1 provides that "all material set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the statement of the opposing party." Plaintiff's motion, although stylized as a "Motion for Summary Judgment" merely recites portions of the case's procedural history, describes his attempts to contact opposing counsel and purports to charge opposing counsel with "identity theft." The Salvation Army did include a statement of material facts in its Motion for Summary Judgment, and it made a good faith effort to respond to plaintiff's statement of facts in its response. In his response, plaintiff contested only a few immaterial details of the Salvation Army's statement of facts.
Although plaintiff is proceeding pro se in this suit, "[t]he duty to admit or deny factual allegations is not too complex of a duty to require of a pro se litigant." Beams v. Norton, 335 F.Supp.2d 1135, 1140 (D. Kan. 2004) aff'd, 141 F.Appx. 769 (10th Cir. 2005). "[T]he failure of a plaintiff, pro se or otherwise, to admit or deny the veracity of facts set forth in a motion for summary judgment results in the facts being admitted." Id. Accordingly, to decide the current cross-motions for summary judgment, the Court relies on the facts set forth in the Salvation Army's statement of material facts.
The Salvation Army is a non-profit organization, a church, and a worldwide religious and charitable ministry. Among its many operations, the Salvation Army operates thrift stores, including one located in Topeka, Kansas.
Plaintiff Elvis Grubbs is a fifty-five year old man who has some Native American ancestry. Plaintiff worked for the Salvation Army as a thrift store clerk from November 15, 2010 to January 14, 2012. At the start of his employment, the Salvation Army gave plaintiff the Employee Handbook for the Salvation Army's Central Territory. Plaintiff also singed a New Hire Orientation Checklist where, among other things, he agreed to abide by the Salvation Army's policies and rules on absenteeism and professional conduct. Plaintiff understood that he could lose his job if he failed to abide the standards outlined in the Handbook.
B. Plaintiff's Bric-a-Brac Assignment
As a clerk, plaintiff's responsibilities at the thrift store included cleaning shelves, counters and tables, stocking merchandise on shelves and displays, and fulfilling other duties as assigned by his supervisors. At the beginning of his employment, plaintiff's manager, Stacy Anderson, informed him that he would receive training about how to sort and stock "bric-a-brac." Plaintiff received such training. "Bric-a-brac" refers to miscellaneous small items such as dishes, books, heaters, and fans people in the community have donated to the store. Stocking new bric-a-brac involves sorting products into grocery carts in the back of the store and placing the products on the store's shelves and display spaces. A male employee named Jacob Gomez was initially responsible for bric-a-brac. However, Ms. Anderson wanted to train plaintiff so, when needed, he could help sort bric-a-brac.
After the Salvation Army fired Mr. Gomez, Ms. Anderson took over the bric-a-brac duties. When Ms. Anderson became pregnant, plaintiff assumed some bric-a-brac responsibilities to help her. Other staff, including Sheena Davis, occasionally helped with the bric-a-brac. Eventually, the store hired a Caucasian man to sort the bric-a-brac, but he quit after two days. Plaintiff told his coworkers that he liked working with bric-a-brac.
Ms. Davis became an assistant manager and plaintiff's supervisor after the Salvation Army terminated the store's previous assistant manager for theft. Like plaintiff, Ms. Davis had some Native American ancestry. Under Ms. Davis' management, plaintiff spent about half of his time sorting bric-a-brac in the back room and the other half of his time stocking it on the store's shelves. Plaintiff believed that Ms. Davis instructed other employees not to help him sort bric-a-brac in the back room. Responding to plaintiff's request for help, Ms. Davis hired a new employee, a woman, to help him sort bric-a-brac and stock products on the shelves. But the new employee worked for just one week because she was not willing to take a drug test. Plaintiff claims he does not "know what [Ms. Davis's problem] was, " but he "figured" she made him handle the bric-a-brac without help from others because he was the only man of his age working at the store at the time. Plaintiff also believes that a sexual harassment lawsuit filed against the Salvation Army by a former employee partially influenced Ms. Davis' decision to assign him sole responsibility for bric-a-brac. Plaintiff, however, never elaborates on this suspicion.
C. Plaintiff's Absences and Car Problems
On June 27, 2011, plaintiff failed to report to work due to car problems and plaintiff's former supervisor, Ms. Anderson, issued him a warning for absenteeism. Ms. Anderson issued plaintiff a second warning on July 29, 2011, this time for substandard work efforts and failure to carry out assigned tasks in a timely manner. Plaintiff had failed to stock all of the items in his baskets, which remained in the baskets when he returned to work the following day. On November 16, 2011 plaintiff was absent from work and failed to notify anybody at the store that he would be absent, commonly called a "no call/now show." Plaintiff acknowledges that he could have received a written warning for this unexcused absence, but he did not receive one. Plaintiff's supervisor, Ms. Davis, also reported that plaintiff frequently would leave the store for lunch and report back to ...