United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
plaintiff Emori Dodson brings this Title VII action claiming
the defendant employer unlawfully reduced her hours as a food
server and then terminated her employment on account of her
pregnancy, race, gender, and/or religion. The defendant is
the franchised operator of the IHOP restaurant in Hays,
Kansas, which hired Ms. Dodson in July of 2015 and terminated
her in November of 2017. Ms. Dodson believes her hours were
reduced and she was terminated because she was a white,
non-Muslim woman who was pregnant from a relationship with
Mr. Abass Fares, a cook at the restaurant and the
brother-in-law of the restaurant's manager, Mr. Adham
Saleh. Both Mr. Fares and Mr. Saleh are Arab Muslims. The
defendant moves for summary judgment arguing that the
plaintiff's evidence of race and religion discrimination
is insufficient to state a prima face case and that the
plaintiff's evidence of alleged discrimination on any
ground is insufficient to allow the jury to disbelieve the
defendant's reasons for first changing the
plaintiff's shifts and later terminating her.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In deciding the motion, the court's role is
“is not . . . to weigh the evidence and determine the
truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The
court may grant summary judgment for lack of a genuine issue
when the evidence is insufficient “for a jury to return
a verdict, ” when “the evidence is merely
colorable, ” or when the evidence “is not
significantly probative.” Id. It follows then
that a genuine issue for trial exists when “there is
sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.” Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
moving party bears the initial burden of showing the absence
of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden is met
“by pointing out to the court a lack of evidence for
the nonmovant on an essential element of the nonmovant's
claim.” Adler, 144 F.3d at 671. The burden
then shifts to the nonmovant to “go beyond the
pleadings and set forth specific facts that would be
admissible in evidence in the event of trial from which a
rational fact finder could find for the nonmovant.”
Id. (internal quotation marks and citations
omitted). Such facts “must be identified by reference
to affidavits, deposition transcripts, or specific exhibits
incorporated therein.” Id.
court applies this standard drawing all inferences arising
from the record in the nonmovant's favor. Stinnett v.
Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). The
court does not make credibility determinations or weigh the
evidence; these are jury functions. Id. at 1216. The
Tenth Circuit has counseled this for summary judgment
proceedings in employment discrimination cases:
[I]n the context of employment discrimination, “[i]t is
not the purpose of a motion for summary judgment to force the
judge to conduct a ‘mini trial' to determine the
defendant's true state of mind.” Randle v. City
of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). Many of
the highly fact-sensitive determinations involved in these
cases “are best left for trial and are within the
province of the jury.” Id.; see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986) (“[T]he inquiry [at summary
judgment is] whether the evidence presents a sufficient
disagreement to require submission to a jury....”).
Consequently, “in this Circuit . . . an employment
discrimination suit will always go to the jury so long as the
evidence is sufficient to allow the jury to disbelieve the
employer's [explanation for the alleged
misconduct].” Beaird v. Seagate Tech., Inc.,
145 F.3d 1159, 1177 (10th Cir. 1998) (Tacha, J., concurring
in part); see Randle, 69 F.3d at 452 (“[I]f .
. . inferential evidence is sufficient to allow a plaintiff
to prevail at trial, it is surely sufficient to permit a
plaintiff to avoid summary judgment so that the plaintiff can
get to trial.”).
Lounds v. Lincare, Inc., 812 F.3d 1208, 1220-21
(10th Cir. 2015).
court regards the following facts to be uncontroverted for
purposes of this order and have been viewed in the light most
favorable to the plaintiff.
plaintiff Emori Dodson (“Dodson”) describes
herself as a 23-year old white Christian woman living in
Hays, Kansas. She worked at the Hays IHOP restaurant and was
first hired on July 16, 2015. The restaurant's manager
since June of 2014 has been Adham Saleh
(“Saleh”), and his brother-in-law, Abass Fares
(“Fares” or “Dave”) worked as a
restaurant cook. Fares lived with Saleh between July and
November of 2017, and he began dating Dodson in August of
hired, Dodson signed a form acknowledging receipt of a copy
of the Employee Handbook which included rules on calling in
when sick and on speaking with the manager on duty when late
to work. The rules warned, “IF you do not call or have
a no call no show you will be written up, 3 write ups results
in termination.” ECF# 35-8, p. 2. Dodson digitally
signed the employee handbook on February 12, 2016.
restaurant never employed Dodson full-time, and her
employment occurred over three separated periods:
second highest number of hours that the plaintiff ever worked
at IHOP during an 8-week period occurred from
8/14/17-10/8/17, when she averaged 35.2 hrs/wk. The
scheduling of Dodson's shifts was not consistent, except
for the last few weeks of her employment in 2017 when she
worked exclusively the day shifts on Saturdays and Sundays.
Dodson preferred working shifts with the best potential for
earning tips which she regarded as the evenings and nights on
messages between Dodson and Saleh show that the plaintiff was
late to work on August 13, 17, 20, and 21, and that this
upset Saleh. The plaintiff asserts she “was
occasionally tardy or missed work” but that she
“did not have any more issues than many of the other
employees.” ECF# 36-1, ¶ 4. The court sustains the
defendant's objections for lack of foundation and
supporting evidence to Dodson's averment and also to the
statement in Liles' affidavit that Dodson “always
showed up for her shifts, ” (ECF# 36-2, p. 1). ECF# 37,
p. 2. Both affidavits lack a foundation for personal
knowledge. With Dodson, there is nothing to show how she
would be competent to compare her attendance issues with
those of all other employees. Other than stating her opinion,
Dodson's affidavit provides no supporting details about
other employees' attendance issues. Liles' affidavit
fails to establish a time frame when she worked with Dodson
as to opine that she “always showed up for her
shifts.” Even assuming the dates in Liles'
affidavit should be corrected to 2017, the uncontroverted
text messages exchanged between Saleh and Dodson plainly
contradict Liles' statement and leaves its support and
scope in doubt.
after starting her third period of employment, Dodson and
Fares began having a sexual relationship, and Dodson made it
public knowledge at the restaurant. Saleh observed that
Dodson was “a major cause of workplace stress for other
employees.” ECF# 35-1, p. 3. Employees told Saleh
“that they felt that Dodson was ‘crazy' or
‘psycho.'” Id. While the plaintiff
avers she was a “good employee” and “did
not cause any disruptions at work, ” she is unable to
controvert what other employees may have told Saleh. ECF#
36-1, p. 2.
August 8, Dodson texted Saleh at 10:52 pm asking if she could
work the next Thursday. ECF# 35-12, p. 3. Saleh said he would
get back with her and then asked how she was doing.
Id. During this exchange, Dodson told Saleh that she
was now a certified med aide and Saleh congratulated her.
Id. Saleh then wrote that Dodson, “You are a
hard worker. But crazy sometimes.” Id. Dodson
responded, “I have to work hard now so i don't have
to later. And only the best people are.” Id.
August 29, Dodson texted Saleh asking why he had told Fares
“not to hang out” with Dodson. ECF# 35-12, p. 18.
I like u and u already know that and I'm always trying to
help u out and always wanna see u doing good in your life and
u were but I can't be involved between u and Dave but
I'm so sure he was so sad to see u in the jail and was so
worried about u and what will happen to u, and he is mean to
u that's mean he do care about u and he wants the best
ECF# 35-12, p. 18. This text evidences Saleh's knowledge
of Dodson's arrest on August 28, 2017. Fares and Liles
were passengers in Dodson's car when she was stopped and
arrested for driving under the influence. A search of her
vehicle yielded drugs and drug paraphernalia. Saleh avers
that after Dodson's arrest, he “became increasingly
worried about how Dodson's illicit drug activity was
affecting her work as well as my home life.” ECF# 35-1,
p. 3. Dodson's objections to evidence of this arrest as
irrelevant and inadmissible are overruled, as the evidence is
relevant insofar as Saleh has testified he knew of the arrest
which created concerns for him over the plaintiff's
behavior and its impact on her employment and his home life.
next morning, August 30, Saleh started a text exchange during
which Dodson threatened to kill herself and expressed
concerns over the possibility of her termination. Saleh asked
to have coffee with her, and the following was exchanged:
Saleh: Nothing deserve killing yourself for it. Take care.
Dodson: No. I know. But youre just going to fire me.
Saleh: I don't think like that. Silly.
Dodson: Is ihop have to close.
Dodson: Feeling so happy and so sad at the same time, one
would think it's a gift.
Saleh: Emori u are a very nice person so don't belittle
yourself and it's time to keep focusing to make yourself
better and we don't want to give up for any reason.
ECF# 35-12, p. 20.
warned Dodson in person and through text messages to keep her
personal life with Fares out of the restaurant and not to
bring their personal drama to work. Around 6 pm on September
3, Dodson texted Saleh that she could “take a
hint” and would “start job hunting.” ECF#
35-12, p. 21. Saleh responded with this warning:
Yes, you are a very good server and I don't want to loose
you for some silly things but I prefer you to be more careful
about your relation and how if it will be at work with no
control then it will be a problem, Fatima and I were so
careful for that and it should be like that. Just keep it out
side your work zone Have a good night.
Id. Later that same evening, Dodson began exchanging
Dodson: U know there was no drama or anything bad until u
said something. Daniel and josh had more crap going on than
we have at all. We came in happy and now its done. Weird I
thought itd be one of us to break my heart. Out of all my
chaos going on there was one thing keeping me smiling. But
Dodson: White girls are crazy. Will u ever learn lol.
Saleh: Now I know Dodson: Good.
Dodson: And stop messin w our ...