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Al-Hammouri v. The American Bottling Co.

United States District Court, D. Kansas

November 19, 2019




         Plaintiff Mohamed Al-Hammouri brings this action against his former employers, The American Bottling Company, Dr Pepper/Seven Up, Inc., and Dr Pepper Snapple Group for hostile work environment, discrimination, and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964[1] (“Title VII”). This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 69). The matter is fully briefed, and the Court is prepared to rule. As explained fully below, the motion is granted in part and denied in part. Summary judgment is granted as to Plaintiff's discrimination claims related to his non-selection for leadership programs and his suspension without pay. Summary judgment is denied as to all other claims, including Defendants' affirmative defense under Faragher/Ellerth.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[2] In applying this standard, courts view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[3] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[4] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[5] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[6]

         The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[7] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[8]

         Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[9] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[10] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[11]

         The facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[12] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[13]The nonmoving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[14]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[15] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[16]

         II. Uncontroverted Facts

         The following material facts are uncontroverted, stipulated to in the Pretrial Order,[17] stipulated to for the purposes of summary judgment, or viewed in the light most favorable to Plaintiff as the nonmoving party. Plaintiff is a Muslim man. He was born in Jordan and moved to the United States in June 2009. He considers his race white. Plaintiff began his employment in the Lenexa Branch of Defendant The American Bottling Company in October 2011 as a Merchandiser. He was promoted to Relief Account Manager in January 2012, promoted to Account Manager in July 2012, and promoted to District Manager in late 2013. From late 2013 until the end of his employment, Plaintiff was supervised by Todd Lindhoff. Though Plaintiff was employed by The American Bottling Company during the period relevant to his claims, Defendants assume that Plaintiff was jointly employed by all three Defendants for purposes of their motion for summary judgment.[18] For purposes of this Memorandum and Order, the Court will also assume as such.

         A. Organizational Structure

         At The American Bottling Company (hereinafter “Dr Pepper”), Merchandisers report to Merchandising Managers and Merchandising Managers report to Branch Managers. Dr Pepper also employs Relief Account Managers and Account Managers. Both of those positions report to District Managers who, like Merchandising Managers, report to a Branch Manager. Dr Pepper's Branch Managers report to Area Directors.

         In 2012, Todd Roberts became the Area Director over the Lenexa Branch where Plaintiff worked. In late 2013, Lindhoff became the Branch Manager for Dr Pepper's Lenexa Branch. Soon thereafter, Plaintiff applied for and received a District Manager position. Lindhoff interviewed Plaintiff and ultimately chose him for the position. As a District Manager, Plaintiff reported to Lindhoff. District Managers typically work during regular business hours on Mondays through Fridays, but they are also expected to be available at other times as business requires.

         B. Lindhoff's Treatment of Plaintiff

         Soon after Plaintiff was promoted to District Manager, another District Manager, Lauren Slezak, was discharged. During the first half of 2014, Slezak asked Plaintiff to assist her with getting her personal belongings because Lindhoff had not responded to her calls or emails. Plaintiff spoke to Lindhoff about the matter, explaining that he had run into Slezak at the grocery store. Lindhoff responded angrily and told Plaintiff to worry about his own job and not get involved with previous employees.

         After this incident, Plaintiff complained to Human Resources (“HR”) Manager Rachel Zuniga about Lindhoff's behavior. Plaintiff told Zuniga about the incident concerning Slezak. Plaintiff also recalls telling Zuniga that Lindhoff: (1) called Plaintiff while Plaintiff was on vacation telling him to be worried about his job, (2) frequently told Plaintiff he should be worried about his job, (3) talked “weird” to Plaintiff compared to others, and (4) frequently yelled at Plaintiff about business issues, often in front of others. Plaintiff does not remember whether he explicitly told Zuniga he thought Lindhoff's treatment was due to his race, national origin, or religion. Zuniga informed Plaintiff she would investigate and get back to him. A few hours later, Lindhoff asked Plaintiff if he had been to HR. Plaintiff confirmed he had, and Lindhoff asked Plaintiff if he thought going to HR would do anything to Lindhoff. Lindhoff also told Plaintiff to come to him in the future before going to HR. Plaintiff did not tell anyone about this conversation with Lindhoff and did not have further conversation with Zuniga about the issue.

         In the fall of 2014, when Plaintiff and Lindhoff were riding to a business location together, Lindhoff began recounting the newsworthy events that had recently taken place in Ferguson, Missouri. Lindhoff commented, in Plaintiff's words, “I don't know where's [sic] our country heading. We got so many issue [sic], terrorist[s] blowing themselves and thiefs [sic] they get killed and they pretend they're innocent, and I don't know where's [sic] this country heading.”[19]

         On one occasion, Lindhoff asked Plaintiff to go with him to help him find his dog because the dog had escaped from Lindhoff's garage that morning. He asked Plaintiff to try to catch the dog because Lindhoff stated he was unable to run. Another time, Lindhoff directed Plaintiff to take him to look for a coffee machine for his wife. In another instance, Lindhoff asked Plaintiff to drive him to drop off his laundry. These incidents all occurred during Plaintiff's normal work hours.

         Plaintiff saw Lindhoff's administrative assistant at a casino on two occasions. Jamie Malbon, another Dr Pepper employee, joked one time about Plaintiff dating the administrative assistant because the administrative assistant mentioned she ran into Plaintiff at the casino. Following this, Lindhoff repeatedly joked about Plaintiff dating the administrative assistant and Plaintiff frequenting the casino.

         On August 26, 2014, Malbon called Lindhoff on a speakerphone to tease Lindhoff. Plaintiff was in the room with Malbon at the time. Malbon mentioned Plaintiff by name during the conversation. While still on the speakerphone but unaware that Plaintiff was present in the room with Malbon, Lindhoff said, “I'm just done with this guy, I can't understand a fucking word out of him. And I'm just done with this guy. He talked to me, man, I just don't understand him.”[20] Malbon quickly hung up the call and apologized to Plaintiff for Lindhoff's comments. Later that day, Lindhoff left Plaintiff two voicemails. He left the first voicemail at 7:56 p.m. and said, “Hey, when you get out of the casino, give me a call. See ya.”[21] He left a second voicemail at 8:17 p.m. and said:

Hey, I like your language. I like your message I should say. But going forward, send it to me. Let me help you with your English because the direction is there, I get it. I understand it. Let me help you with your English to get it to a better place. Alright? So, forward it to me from now on single-handedly and then I'll send it back to you and you can forward it on to everyone else after I help you fix it.[22]

         In October 2014, Plaintiff attended a work-related training in Iowa. One of the employees attending the training with Plaintiff was Randy Hall, whom Lindhoff knew. While Plaintiff was in Iowa, Lindhoff sent Plaintiff a text message stating: “Tell Hall he is a fruity ass puss boy. Do it!”[23] Plaintiff understood Lindhoff was trying to joke around with Hall, but Plaintiff does not talk that way, and-according to Plaintiff-Lindhoff should have known that.

         On November 26, 2014, Plaintiff sent Lindhoff a text wishing him and his family a happy Thanksgiving. Lindhoff responded: “Christopher Columbus Indeed. Discover America.”[24]Plaintiff testified that he was not sure what Lindhoff meant by this text.

         On July 2, 2015, Plaintiff wished Lindhoff a happy Fourth of July, and Lindhoff responded by saying, “You need to learn about America first before you tell me Happy Fourth of July.”[25] Plaintiff does not believe that there were any witnesses to this incident. Lindhoff does not recall making this comment.

         During Ramadan one year, a group of employees ordered pizza at a team meeting. Plaintiff was not eating, and Lindhoff remarked, “Yeah he's fasting, this guy, they're Muslim, they're weird. I don't know what they do there.”[26] On another occasion, Lindhoff remarked that employees conducting an event with Plaintiff would not get to eat lunch because Plaintiff was fasting.

         Sometime in 2015, Plaintiff won tickets to a suite at a Royals game through Dr Pepper. Plaintiff and his family attended the game. Lindhoff was also present. When Plaintiff, his wife, and their four kids arrived, Lindhoff asked Plaintiff, “Is this only your [sic] 12 kids, or you got more?”[27] When Plaintiff's wife tried to shake Lindhoff's hand or greet him, Lindhoff turned around and walked away. Later, Lindhoff asked Plaintiff's wife if she was Muslim. Plaintiff's wife said she was, and Lindhoff told her he thought Muslim women wore “rags” on their heads. Plaintiff did not witness this event but learned about it from his wife. Plaintiff felt that Lindhoff ignored him and his family at the event and witnessed Lindhoff being social with other employees.

         In December 2015, Plaintiff sent an email to some of his coworkers wishing them Happy Holidays. At a subsequent meeting, Lindhoff asked Plaintiff what the email was about. Plaintiff explained that he had sent a “Happy Holidays” email. Warehouse Manager Mike Langdon then thanked Plaintiff for the holiday greeting and wished Plaintiff and his family the best. Lindhoff replied to Langdon, “[H]e's Muslim, why did you respond to him? Muslims do not celebrate our holidays.”[28]

         That same month, Lindhoff called Plaintiff to ask him to meet him at a bar when Plaintiff was driving home from work. When Plaintiff arrived, Lindhoff asked if Plaintiff had watched the news. Plaintiff responded that he had not. Lindhoff began recounting the shooting in San Bernardino that had happened recently. Lindhoff asked Plaintiff what the shooters, who were Middle Eastern, had been thinking. Plaintiff told Lindhoff he did not know. Lindhoff continued to ask Plaintiff about the shooters' mental states and motivation. Plaintiff insisted he did not know the answer and did not know what Lindhoff was talking about. Lindhoff then commented that he believed Plaintiff had been acting weird lately. Lindhoff said he wanted to see what was going on. Plaintiff asked Lindhoff what he meant, and Lindhoff explained that he did not know but wanted to “chitchat” with Plaintiff for a little bit.[29] Plaintiff then asked if the two were done and left the bar.

         In March 2016, Plaintiff was getting ready to go to Dubai for vacation and had not shaved his facial hair. The morning of Plaintiff's flight, he decided to go into work. While there, Lindhoff gave Plaintiff an assignment and told Plaintiff he could not leave until it was complete. Plaintiff reminded him that he was going on vacation and indicated he would not finish the assignment before leaving. That same day, Lindhoff asked, “What's this?” referencing Plaintiff's facial hair.[30] Plaintiff said he had not shaved, to which Lindhoff replied, “I don't know what you guys do in your country, but make sure you don't come back before you shave it.”[31] Dr Pepper did not have a policy against facial hair, although men in the beverage industry traditionally are clean-shaven.

         In April 2016, Plaintiff attended a class called “Managing within the Law, ” taught by Regional HR Manager Lucas Gray.[32] During the class, Gray explained that employees should raise concerns about harassment or discrimination if they have them. After the class, Plaintiff approached Gray and informed him that he believed Lindhoff was discriminating against him. Gray told Plaintiff they should set a time to talk about Plaintiff's concerns. Gray subsequently sent Plaintiff an email. The two had a conversation on May 2, 2016.

         After their conversation, Gray sent Plaintiff a copy of his notes via email. Plaintiff made a change to one of the dates in Gray's notes, but otherwise told Gray that his notes were accurate. Because Gray's notes were a summary, they did not include a complete list of every detail Plaintiff recounted to Gray. Plaintiff also recalls telling Gray during the meeting that he could not remember every infraction because “it's just a small word here.”[33] Gray's notes mention the following incidents: (1) Malbon calling Lindhoff on the speakerphone in August 2014, (2) Lindhoff telling Plaintiff he needed to learn about America before wishing him a Happy Fourth of July, (3) Lindhoff remarking that other employees should not have responded to Plaintiff's “Happy Holidays” email because Plaintiff is Muslim and Muslims do not celebrate “our holidays, ” (4) Lindhoff's comments about Plaintiff's facial hair, and (5) Lindhoff telling Plaintiff he could not wear jeans at work even though others were allowed to. Plaintiff recalls also mentioning Lindhoff's comments about fasting during Ramadan and Lindhoff calling Muslims “weird.” According to Plaintiff, the “comment about shaving is the one that really bother[ed] [him].”[34] Plaintiff also told Gray he believed that Lindhoff made comments without considering that the comments may hurt people's feelings. Plaintiff did not identify witnesses to the Fourth-of-July incident, but did identify witnesses to each of the other events. At the end of the meeting, Gray asked Plaintiff how he would like the matter resolved. Plaintiff explained he did not want to hurt anyone because he feared that Lindhoff would try to get rid of him if he did. Plaintiff suggested that HR could give a training about treating employees with respect.

         Two days after his conversation with Plaintiff, Gray interviewed Lindhoff. Lindhoff denied Plaintiff's allegations that he told Plaintiff he needed to learn about America before he could wish Lindhoff a happy Fourth of July. Lindhoff admitted that he had made comments about Plaintiff's language, Plaintiff's facial hair, and Plaintiff's holiday email. Lindhoff, however, provided alternate explanations. Lindhoff told Gray that he and Plaintiff joked back and forth and had friendly banter. Lindhoff stated that he believed he taught Plaintiff about aspects of U.S. culture.[35] Plaintiff never told Gray that he interpreted Lindhoff's comments to be jokes, friendly banter, or helpful lessons about U.S. culture.

         Gray determined that no further investigation was warranted; Gray did not interview any of the witnesses that Plaintiff had identified. Gray did, however, have a conversation with Lindhoff about his actions, explaining that they were not appropriate. Gray informed Lindhoff's managers of that meeting and suggested they document the meeting. Roberts, one of Lindhoff's managers, concluded that the verbal warning was sufficient and decided not to include a written record of the warning in Lindhoff's file. According to Plaintiff, after the conversations with Gray, Lindhoff became more dismissive of him. For instance, Plaintiff recalled that Lindhoff refused to answer some of his business-related questions following Lindhoff's conversation with Gray.

         In August 2016, three months after his conversation with Gray, Plaintiff received his mid-year review from Lindhoff. Lindhoff rated Plaintiff a 4 on a scale of 5 and included many positive comments.[36] Lindhoff also selected Plaintiff to attend market visits when upper management came to town, giving Plaintiff exposure to upper management. According to Joseph Rowland, the Business Unit General Manager, Plaintiff had been selected because “he was identified as [a] strong performer, and people always want to put their best people in front of [him].”[37]

         At some point during his employment, Lindhoff asked Plaintiff to handle an issue between an employee from Pakistan and a customer from India. The account was not located in Plaintiff's area of responsibility, and Plaintiff's job duties did not include resolving employee-customer disputes. Lindhoff asked Plaintiff to tell him about how Indian and Pakistani cultures work together, and how Middle Eastern people communicate.

         On another occasion, Lindhoff asked Plaintiff if he knew Lindhoff's doctor. Plaintiff stated that he did because they played soccer together, and Lindhoff replied that they looked like each other. When Plaintiff asked if it was because they were both short men, Lindhoff responded that it was because both Plaintiff and Lindhoff's doctor were Middle Eastern.

         Lindhoff also misspelled Plaintiff's name in group texts or emails as “Months” at least three times. Plaintiff explained that Lindhoff could call him Mohamed or Mo. Lindhoff explained that “Mo” had auto-corrected to “months.” Lindhoff also called Plaintiff “Mo Mo” despite Plaintiff's requests that he either use Mohamed or Mo.

         On at least two occasions, Lindhoff asked Plaintiff if he would be sacrificing goats over the weekend. A now-former-employee, Thomas Van Anne, recalled hearing these comments.

         C. Lindhoff's Behavior Directed at Employees Other Than Plaintiff

         On at least one occasion, Lindhoff referred to Dr Pepper as the “black guys of the beverage industry.”[38] He made this comment when he was upset with the Lenexa Branch's performance. Additionally, one employee recalled a situation during which a Middle Eastern employee was talking about his upcoming travel plans. Lindhoff remarked that he hoped the employee did not get caught up in T.S.A.

         During Plaintiff's employment, a man named Kelly Allen was hired to work at Dr Pepper as an Account Manager. Allen is African-American who, at the time he worked at Dr Pepper, had an afro and wore a sweatband on his head. Lindhoff knew Allen because Allen previously worked at a bar that Lindhoff frequented. When Allen started his job at Dr Pepper, Lindhoff introduced him to other employees as “Coffee Black, ” referring to a character in a popular film who also had an afro and wore a sweatband.

         D. Lindhoff's Texting and Calling Habits

         Lindhoff texted Plaintiff after regular business hours on multiple occasions. In 2014, Lindhoff texted Plaintiff after hours on at least six occasions.[39] In 2016, Lindhoff texted Plaintiff after hours on at least seven occasions.[40] Additionally, on April 11, 2017, Lindhoff sent Plaintiff a text around 10:00 p.m. that said, “T [Lindhoff's wife] mad at me. Nothing else going on. How you doing Mo?”[41] Lindhoff then texted, “I might have to move in with you.”[42] Plaintiff did not respond. Plaintiff did not believe these were friendly texts because it made him uncomfortable to receive a message from his supervisor at 10:00 p.m. requesting to move in with him.

         Lindhoff also texted three other District Managers that reported to him who were white, American-born, and non-Muslim: Bryan Rouchka, Mike Langdon, and Scott Johnson. Lindhoff texted Rouchka between five and six at night but did not call or text him late at night. Lindhoff did not text or call Langdon outside normal business hours. S. Johnson testified that he received texts and calls from Lindhoff after regular business hours.[43] S. Johnson did not recall whether he received texts or calls from Lindhoff after 9:00 p.m.

         S. Johnson ultimately quit his job at Dr Pepper. He explained that he quit because he had enough of “working in chaos every day, departments not working together, being called by stores on weekends and late at night and having to work on [his] day off and not get paid[.]”[44] S. Johnson stated he did not know what Lindhoff expected of him and that Lindhoff yelled at him in front of his coworkers, both of which were factors that contributed to S. Johnson quitting.

         E. Plaintiff's Reviews and Attempts to Change Positions within Dr Pepper

         Lindhoff conducted performance reviews of Plaintiff twice a year. The reviews typically took place in March and August. By way of example, Lindhoff rated Plaintiff a “4” on a scale from one to five in March 2015. He included positive comments about Plaintiff, including that he was “a key leader among his peers.”[45]

         In October 2016, Plaintiff applied for a Branch Manager position at Royal Crown Bottling Corporation (“RC Bottling”) in Marion, Illinois. At the time, Plaintiff's annual salary at Dr Pepper was $57, 325.52; he was also eligible for incentive compensation and bonuses, which typically amounted to $5, 000 per year. On March 31, 2017, Plaintiff received an offer to be the Branch Sales Manager at RC Bottling, which came with an annual base salary of $57, 000.32, bonus potential of $12, 000 per year, comparable benefits, a company car, and relocation expenses. Plaintiff requested additional compensation from RC Bottling, and RC Bottling increased the base salary offer to $60, 000.20. Plaintiff testified that this offer was better than his job at Dr Pepper in terms of “[m]oney and everything else.”[46]

         Plaintiff showed the RC Bottling offer letter to Lindhoff, explaining that he had applied for many promotions at Dr Pepper but did not feel he would ever be promoted. Lindhoff responded that Dr Pepper would have many job openings and that Plaintiff should be patient, but it was Plaintiff's decision whether to leave Dr Pepper. Following this conversation, Plaintiff declined the RC Bottling job offer.

         During his employment with Dr Pepper, Plaintiff applied for at least six positions outside Lindhoff's supervision but did not receive an offer for any of the positions.[47] Dr Pepper's protocol is for hiring managers to contact the current supervisor of any internal applicant. Lindhoff does not recall providing any negative information about Plaintiff. In addition, Lindhoff authored several positive performance reviews of Plaintiff, which hiring managers may have considered during the process.

         In May 2016, Plaintiff applied for a Branch Manager position under Roberts' supervision. Roberts explained that he was forced to hire another individual for the position, because that individual had completed a leadership program and Roberts was strongly encouraged to hire the other applicant.

         Plaintiff spoke with Jason Smith, an Area Director in Houston, about wanting to change locations and had two interviews with him. Smith informed Plaintiff that his name was “always [at]the top of the list, ” but that he could not hire him.[48] While he did not elaborate as to why he could not hire Plaintiff, Smith offered to meet with Lindhoff and create a development plan for Plaintiff. Plaintiff also spoke with his mentor, Rich Brennan, about his desire to leave the Lenexa Branch because he did not see a future at the location. Brennan indicated he would do some research and assist Plaintiff if possible. Doug Wilcox, a hiring manager with whom Plaintiff spoke, instructed Plaintiff to talk to Lindhoff who could create and implement a development plan for Plaintiff.

         In December 2016, Plaintiff inquired about participating in a leadership program to increase his odds of receiving a promotion or new position. Jamie England, who oversaw the leadership program, explained two leadership programs to Plaintiff: the Emerging Leader Program (“ELP”), which was for people who needed to learn more about Dr Pepper's business, and the Business Leader Development Program (“BLD Program”), which targeted internal applicants with high potential. England explained that only a “very small group [is] selected from a large population” to participate in these programs.[49] She also told Plaintiff that he was “very well respected by the business and [had] great potential.”[50]

         Per England's recommendation, Plaintiff spoke with his local HR Manager, Thomas Johnson, about applying for one of the leadership programs. Plaintiff also spoke with Roberts and Lindhoff about the programs. Lindhoff recalls talking to Roberts about Plaintiff applying for a leadership program, but Lindhoff testified he does not know what happened afterward. T. Johnson sent Plaintiff a follow-up email and recommended additional steps Plaintiff could take, including information about a training book and classes.[51] Plaintiff had already completed the classes, and had read most of the training book prior to receiving the recommendation. T. Johnson, Roberts, and Lindhoff scheduled monthly meetings with Plaintiff to check in with his progress. Plaintiff was dissatisfied with these meetings because he believed T. Johnson, Roberts, and Lindhoff were just going through the motions. Plaintiff also noted that the three did not all show up to every meeting.

         Rowland made the ultimate decision as to which people from his geographical region of Dr Pepper would be part of the BLD Program. Rowland's position was three levels above Lindhoff; Lindhoff reported to Roberts, Roberts reported to Don Henson, and Henson reported to Rowland. Rowland knew Plaintiff and thought highly of him because the two interacted during Rowland's visits to the Lenexa Branch. Although Rowland testified that Plaintiff was not a good candidate for the ELP because Plaintiff already had sufficient knowledge of Dr Pepper's business, Rowland believed that Plaintiff was a good candidate for the BLD Program. Rowland suggested Plaintiff look into the BLD Program and frequently discussed Plaintiff's interest in the BLD Program with him.[52] Rowland does not know for certain whether Plaintiff's name was provided to him for consideration in the BLD Program in 2017; however, Rowland testified that he would not have chosen Plaintiff over those he ultimately selected for the BLD Program.

         After Plaintiff spoke to Rowland about moving up in the company during one of Rowland's visits to the Lenexa Branch, Lindhoff told Plaintiff that Rowland could not move Plaintiff up in the company because Plaintiff was not “going to go anywhere without [Lindhoff's] approval.”[53] Lindhoff also told Plaintiff he should not ask Rowland for jobs or to move elsewhere within Dr Pepper.

         F. The Runzheimer Application

         During Plaintiff's employment, Dr Pepper began using a software application called “Runzheimer” for certain classifications of employees to submit business miles for reimbursement. Dr Pepper first introduced the Runzheimer application to District Managers in the Lenexa Branch in late 2015, but employees were provided minimal training on how to use it. Plaintiff received a written copy of the policy on how to use Runzheimer, but employees orally received information that contradicted or deviated from the written policy.

         Dr Pepper did not mandate a procedure for running the application. Runzheimer users could either manually record each trip through Runzheimer or they could set Runzheimer to automatically record all miles during certain hours of specified days. Plaintiff set his Runzheimer application to track all miles he drove between 6 a.m. and 6 p.m. on Mondays through Fridays. If Plaintiff worked weekends or additional hours, Plaintiff tracked his miles manually.

         Dr Pepper also did not maintain a consistent policy about which miles would be reimbursed. For instance, when Dr Pepper first implemented Runzheimer, employees were instructed that “commute miles”-explained in the policy as “home to office/first stop and office/last stop to home”-should not be submitted for reimbursement.[54] Based on the Runzheimer training, Plaintiff believed that Runzheimer automatically detected and excluded commute miles from being tracked. Sometime later, Roberts told the employees that they should capture “commute miles” as business miles. Plaintiff found the application confusing and did not make it a priority to determine whether he was being reimbursed for his commute miles.

         Similarly, there was not a consistent policy regarding whether miles to-and-from lunch should be submitted for reimbursement. During his deposition, Rowland explained that a District Manager “going to lunch during the normal course of their day, within the area that they're doing business” would not need to remove those miles off his or her mileage off report.[55]Rowland added that if a District Manager were to “drive to Timbuktu” for lunch, he or she should manually remove those miles from the mileage report.[56] Jon LeRoy, a manager within Dr Pepper's Asset Protection & Security Group, testified that in addition to reasonable lunch miles, it was generally not a problem if an employee left miles on his/her mileage report for personal errands that were within their territory on the way to or from an account visit.

         Employees who used Runzheimer submitted their mileage reports on or before the third day of each month. Prior to submission, each employee was instructed to review his or her mileage report to ensure sure the trips were all business-related. If employees identified personal trips, they were responsible for removing them from the mileage report before submission. Plaintiff does not recall reviewing all his miles, but he did manually turn off his Runzheimer application before taking personal trips and turned it back on once the personal trip concluded.

         G. Investigation of Plaintiff's Mileage Reimbursement

         In the fall of 2017, Roberts and Lindhoff attended an event at one of Plaintiff's accounts. During that event, Roberts was not satisfied with a display of Dr Pepper's product, believing the display was not up to company standards. Roberts spoke to Lindhoff about his concerns, asking Lindhoff where Plaintiff spent his time because it appeared to Roberts that Plaintiff had not spent time servicing that account.

         A short time later, Lindhoff was explaining to a newly hired District Manager, Mike Bennett, that he could use Runzheimer reports to review where his subordinates had been working. It occurred to Lindhoff that he could use this method to review Plaintiff's whereabouts. Lindhoff accessed Plaintiff's Runzheimer report for October 2017 and noticed multiple trips that did not appear to have a business purpose. Lindhoff noted Plaintiff's report listed multiple stops at what appeared to be residential addresses nearly every day.

         Based on his cursory review of Plaintiff's October 2017 Runzheimer report, Lindhoff raised his concerns with T. Johnson. T. Johnson and/or Lindhoff contacted LeRoy and asked him to review the Runzheimer mileage reports Plaintiff had submitted for reimbursement. LeRoy's duties include investigating mileage fraud. He estimated that he personally conducted between ten and fifteen such investigations since Dr Pepper began using Runzheimer. He estimated that the remainder of his team conducted between twenty and twenty-five such investigations during the same timeframe. Investigations were typically started because “a manager or someone up the chain sees an anomaly in the” mileage during the course of “routine managerial duties[.]”[57] LeRoy testified that employees submitting miles for lunch trips or errands that were on the route to or from an account were “not generally a problem.”[58] Rowland confirmed that employees were permitted to submit mileage for lunch trips if the lunch location was near one of their accounts or within their territory.

         When the investigation was referred to LeRoy, the referrer expressed concern that Plaintiff had engaged in fraud.[59] In an email to LeRoy dated Friday, November 10, 2017, T. Johnson flagged “some questionable stops . . . that are not in [Plaintiff's] area and not in locations that [Dr Pepper] would service, ” and “a lot of residential locations” on Plaintiff's mileage report.[60] The following week, LeRoy, T. Johnson, and Lindhoff had a conference call so that LeRoy could obtain further information. Lindhoff sent LeRoy a series of emails following that conversation, including a map of some, but not all, of Plaintiff's area of responsibility. LeRoy explained that although a map is helpful in his investigations, he does not rely solely on the map of an employee's territory to identify suspicious mileage submissions. Instead, LeRoy focuses on identifying addresses with no apparent business-related purpose and addresses that require further information to determine whether they were legitimately submitted for reimbursement.

         During the early stages of his investigation, LeRoy flagged some addresses that seemed questionable. LeRoy and Lindhoff exchanged emails wherein LeRoy asked questions about specific locations on Plaintiff's report. Lindhoff provided explanations for some of the stops. For instance, Lindhoff confirmed that Plaintiff had assisted other District Managers and serviced accounts outside of Plaintiff's territory to do so. LeRoy also inquired about the Saturday trips on Plaintiff's report, to which Lindhoff responded that Plaintiff occasionally worked Saturdays.[61]Even after conferring with Lindhoff, LeRoy had questions about certain locations Plaintiff had visited because the addresses were residential or did not have any apparent link to a Dr Pepper business account. LeRoy testified that Plaintiff's Runzheimer reports raised “some concerns, but not quite the volume [LeRoy] was expecting” based on how the information had initially been presented to him.[62]

         At the end of his review, LeRoy decided he needed to speak with Plaintiff to give him an opportunity to explain the suspected illegitimate mileage submissions. Plaintiff was asked to attend a meeting on November 27, 2017, without being told purpose of the meeting, which was LeRoy's typical practice. Plaintiff, Lindhoff, and T. Johnson all attended the meeting and LeRoy participated telephonically. LeRoy explained his role within Dr Pepper, then said that Plaintiff's mileage submissions had been brought to his attention for further investigation. LeRoy added that he wanted to clarify certain locations on the mileage reports with Plaintiff. LeRoy and T. Johnson asked Plaintiff about different addresses he had visited in June and July of 2017. Plaintiff stated he could not recall what locations those addresses corresponded with. They also asked Plaintiff about his work as an Uber Driver. Plaintiff responded that he only worked as an Uber Driver on nights and weekends, and that he was willing to provide documentation to that effect. LeRoy or T. Johnson then asked Plaintiff to step out of the room. Plaintiff complied.

         When Plaintiff returned, he was asked about “Amazon” and the Amazon-related addresses on his mileage report.[63] Plaintiff admitted to visiting those addresses but also stated Lindhoff had given him permission to do so. Lindhoff confirmed that he had permitted Plaintiff to go to the Amazon-related addresses but clarified that he did not tell Plaintiff to submit mileage reimbursement for the trips.

         In total, Plaintiff's September and October 2017 Runzheimer reports show that Plaintiff submitted mileage for trips to his wife's workplace at Avatar Engineering on at least twenty-four occasions. Plaintiff told Lindhoff, T. Johnson, and LeRoy that he visited his wife's work to have lunch with her, and that he understood lunch mileage did not need to be removed. Plaintiff's wife worked approximately 1.5 miles from Dr Pepper. Plaintiff also submitted mileage for trips to and from his inlaws' residence but did not provide any explanation as to why. Plaintiff submitted mileage reports containing trips to a business called Wonder Tots, presumably his children's daycare, twenty times during the two-month span and could not explain why he submitted those miles for reimbursement during the meeting. All three of these locations were within Plaintiff's territory. The Runzheimer report for September also contained a trip to 833 Ward Parkway and three trips to a location in Gardner, Kansas. Plaintiff admitted that those four trips were for an interview and subsequent orientation and training for a job with a different employer.

         Plaintiff was told he could return to work for the remainder of the day on November 27, 2017. Plaintiff stated that he would prefer to use some of his accrued vacation time and go home for the day. He was given permission to do so. Before leaving, Plaintiff was asked to produce a written statement about his visits to the Amazon addresses. Plaintiff agreed, and wrote: “I admit that on 9/11/2017- 9/12/2017 [and] 9/13/17 on these days without noties [sic] that my Runzimer app was working and I was interviewing with XPO [an Amazon company] and been to orientation but didn't work on my schedule so I quiet [sic].”[64] Plaintiff agrees that the mileage he incurred for his travel to and from the Amazon addresses were not business expenses for which he should have sought reimbursement.

         After Plaintiff left the November 27 meeting, T. Johnson and Lindhoff decided to suspend Plaintiff because they wanted to compare Plaintiff's Runzheimer reports to those of other District Managers and then decide how to proceed. Lindhoff sent Plaintiff a text asking him to return to the office. Plaintiff returned and was informed he would be suspended without pay. Plaintiff orally resigned. Three days later, Plaintiff sent an email to Lindhoff and T.

         Johnson to confirm his resignation, stating in part:

While I have for the most part been satisfied with my time at [Dr Pepper], I feel that the situation has become somewhat untenable and it is now time to move on. However, I leave feeling satisfied with the standards of my work and behavior, and would like to thank you for the learning opportunity that I enjoyed during my time here.[65]

         Plaintiff testified that he and his wife drafted the email together based on a resignation letter template they found online.

         LeRoy completed the investigation in Plaintiff's mileage reports and noted a loss of $62.00. LeRoy explained that this amount reflects conservative estimates based only on what he could confirm had been improperly submitted mileage. LeRoy also testified that he did not spend extensive time reviewing Plaintiff's entire history of Runzheimer reports following the November 27 meeting because Plaintiff had resigned.

         H. Other Employees' Use of the Runzheimer Application

         After the investigation of Plaintiff's Runzheimer use, T. Johnson directed LeRoy to review the mileage reports of other District Managers under Lindhoff. LeRoy instructed Don Creekmore, another investigator, to review Rouchka's and S. Johnson's Runzheimer reports. Creekmore determined nothing unusual stood out to him and reported as such to LeRoy. LeRoy then reviewed the reports on his own and confirmed that neither review warranted an investigation. Lindhoff did not follow up on LeRoy's review of these Runzheimer reports. LeRoy was not aware of other employees under Lindhoff's supervision who had been investigated for Runzheimer use. Rouchka explained that he typically did not delete mileage for lunch if it was on the route he was taking to a customer or if it was a low-mileage trip. S. Johnson stated that he was not sure if he turned off his Runzheimer when he went to lunch. Both Rouchka and S. Johnson admitted that they may have made mistakes in their Runzheimer submissions, but neither was subject to an investigation, nor were they suspended without pay during the initial review of their mileage reports.

         Lindhoff also used Runzheimer to submit business miles for reimbursement. During his deposition on October 22, 2018, Lindhoff could not provide the business purpose for a few trips from 2017. As a result, Defendants investigated Lindhoff's mileage reimbursements in late 2018. That investigation concluded that Lindhoff had submitted personal mileage for reimbursement which should have been omitted. Lindhoff was not suspended during the investigation, but on January 3, 2019, Lindhoff received a final warning. The warning related, in part, to his Runzheimer submissions.[66]

         I. Plaintiff's Post-Resignation Communication

         After Plaintiff's resignation, Rowland contacted him to find out why he resigned. Plaintiff told Rowland he had suffered discrimination and had tried to leave the Lenexa Branch to no avail. Plaintiff also requested an exit interview, and Rowland told him he would have Brett Glass, the Vice President of HR for Dr Pepper, contact him. When Plaintiff spoke to Glass, he told Glass he had suffered discrimination and had previously met with Gray about it. Glass asked Plaintiff to send him notes from that meeting. Plaintiff complied, explaining that the notes represented a “little bit” of what he had gone through.[67] After comparing Gray's notes from the prior investigation to the notes Glass took of his conversation with Plaintiff, Glass “didn't believe there was anything more to be done.”[68] Glass did not speak to any of the witnesses Plaintiff listed, nor did Glass conduct any further investigation beyond what Gray had completed. Glass did not contact Plaintiff again.

         III. Discussion

         Plaintiff brings claims for hostile work environment, discrimination, and retaliation under Section 1981 and Title VII. Defendants move for summary judgment on all claims and raise an affirmative defense as to all claims under Faragher v. City of Boca Raton[69] and Burlington Industries, Inc. v. Ellerth.[70] The Court will address each of Plaintiff's claims in turn and then address Defendants' affirmative defense.

         A. Hostile Work Environment Under Section 1981 and Title VII

         The same substantive standards apply to hostile work environment claims under Title VII and Section 1981.[71] In order to survive summary judgment on a hostile work environment claim, a plaintiff must show that he was discriminated against because of his membership in a protected class, and that the discrimination was “sufficiently severe or pervasive such that it altered the terms or conditions of [his] employment and created an abusive working environment.”[72] A hostile work environment must be both objectively and subjectively offensive.[73] To determine whether an environment is hostile, courts must consider all “circumstances including the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee's work performance.”[74]

         In addition, a plaintiff must be able to point to “more than a few isolated incidents of racial enmity.”[75] While the severity and pervasiveness inquiry “is particularly unsuited for summary judgment because it is quintessentially a question of fact, ”[76] the Tenth Circuit has affirmed summary judgments granted partially based on the severity and pervasiveness requirement.[77] “Mere snubs, unjust criticisms, and discourteous conduct are not actionable; to establish a hostile work environment, [a] plaintiff must show that the alleged harassment is excessive, opprobrious, and more than casual conversation.”[78]

         Defendants assert that the work environment was neither subjectively nor objectively hostile. Most notably, Defendants argue that in March 2017-after more than three years of Lindhoff's alleged hostility-Plaintiff declined a job offer from RC Bottling, even though Plaintiff described that position as better than his job at Dr Pepper in terms of pay and benefits. Defendants note that most of the conduct Plaintiff cites in support of his hostile work environment claim occurred before Plaintiff declined the RC Bottling offer. Thus, Defendants conclude, Plaintiff's own actions undermine his claim that his work environment was hostile because he opted to stay at Dr Pepper rather than accept an offer of better pay.

         In determining whether Plaintiff was subjected to a hostile work environment, the Court considers both overtly discriminatory and facially-neutral comments and actions cited by Plaintiff.[79] Plaintiff identifies multiple comments explicitly related to his race, religion, or national origin as well as additional facially-neutral comments Lindhoff made over a four-year period.[80] The Court also considers other racially-motivated comments Lindhoff made during the relevant period, including introducing an African-American employee as “Coffee Black, ” telling a Middle-Eastern employee that he hoped he did not get caught up in T.S.A. while travelling, referring to Dr Pepper as the “black guys of the beverage industry” when he was upset with the company's performance, and commenting that he expected Plaintiff's Muslim wife to be wearing a “rag” on her head at a company event.

         Plaintiff has submitted evidence of several first-hand incidents of harassment, including that Lindhoff: (1) made disparaging remarks about Plaintiff's religion, such as asking Plaintiff if he was going to sacrifice goats over the weekend and calling Muslims “weird” for fasting during Ramadan, (2) treated Plaintiff rudely during a company event at a Royals game by commenting “Is this only your 12 kids or you got more?” when Plaintiff's four children arrived, remarking that he believed Plaintiff's Muslim wife would have a “rag” on her head, and ignoring Plaintiff and his family throughout the event, (3) criticized Plaintiff's English-language abilities even though none of Plaintiff's coworkers reported difficulty understanding him, (4) asked Plaintiff what Middle Eastern shooters had been thinking following an attack in San Bernardino, California, (5) criticized employees who responded to Plaintiff's Happy Holidays email because Muslims do not celebrate “our holidays, ” (6) told Plaintiff he needed to learn about America before wishing Lindhoff a Happy Fourth of July, (7) told Plaintiff he should not return from vacation until he shaved his beard even though Dr Pepper did not have a policy against facial hair, (8) asked Plaintiff to resolve a dispute between a Pakistani Dr Pepper employee and an Indian customer even though such conflict resolution was not part of Plaintiff's job, and (9) commenting that Plaintiff and Lindhoff's doctor looked alike because they were both Middle Eastern.

         Plaintiff also presented evidence of facially-neutral conduct that he believes was motivated by Lindhoff's racial or religious animus. For instance, Lindhoff asked Plaintiff to do personal tasks with and for him, such as chasing after Lindhoff's dogs, helping Lindhoff shop for a coffee machine for his wife, and dropping off Lindhoff's laundry. Lindhoff also did not respect Plaintiff's requests to be called either “Mohammed” or “Mo, ” often calling him “Mo Mo” which Plaintiff testified he found demeaning. Although Defendants contend that Lindhoff used nicknames with many coworkers, Defendants do not allege that those coworkers asked Lindhoff not to use their respective nicknames. Plaintiff also asserts Lindhoff contacted him more frequently than other District Managers outside of regular business hours, and that Lindhoff contacted him much later at night than he contacted other District Managers. Plaintiff also notes that Lindhoff made jokes about Plaintiff frequenting the casino and dating an administrative assistant, even though Plaintiff had requested Lindhoff not make such comments.

         Plaintiff complained to HR about Lindhoff's conduct three times; twice during his employment and once following his resignation. Although in the first two instances HR employees spoke with Lindhoff, no further investigation was conducted; none of the witnesses Plaintiff identified were interviewed. Even after Plaintiff resigned, Glass did not conduct any additional investigation and again failed to interview any of the witnesses Plaintiff identified.

         Seeing that HR would not remedy the situation, Plaintiff applied for multiple jobs outside of Lindhoff's supervision but was not selected for these positions. To increase his odds of receiving a promotion, Plaintiff applied for the BLD Program but was not selected to participate. In each of these instances, decision-makers would have spoken with Lindhoff about Plaintiff's applications. There is no evidence in the record regarding what, if anything, Lindhoff told upper management during these conversations, though Lindhoff testified he does not recall making any negative comments about Plaintiff. Lindhoff did, however, ...

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