Plaintiff Willie Martin claims defendant Duncan Bit Services, Inc. ("DBS") terminated him because of his race and age in violation of 42 U.S.C. § 1981 and Oklahoma public policy.*fn1 Defendant has filed a motion for summary judgment on all claims. The court concludes the motion should be granted in part and denied in part.
Plaintiff is an African American male who was employed by defendant as a general shop laborer from July 11, 2007 until his employment with defendant ended on December 11, 2009, at which time plaintiff was sixty years old. Defendant supplies new, rerun, and rebuilt bits to the mining, water well, and oil and gas industries. Joseph Davis, Jr., ("Davis") became the defendant's owner and principal decision-maker in July 2008. Plaintiff claims Davis terminated his employment because of his race and age following an altercation on December 11, 2009. Defendant denies this allegation and maintains that plaintiff voluntarily quit on that date. Alternatively, defendant contends that if it is found to have terminated the plaintiff, it did so because of plaintiff's poor job performance and not because of his race or age.
Before Davis became defendant's principal decision-maker, plaintiff worked mostly inside the shop as a helper. At least one of his job duties involved operating a cutting torch. Additionally, plaintiff went on "road trips" to pick up drill bits. After Davis took over, plaintiff was given additional job duties. Those additional job duties were to wash large drill bits outdoors, "pop buttons" off of those drill bits, and to operate an automatic hammer. Additionally, plaintiff was no longer allowed to go on road trips. Plaintiff testified in his deposition that his new job duties were more physically demanding than what he was required to do before Davis's tenure.
During a conversation in February or March 2009 about plaintiff potentially switching to a part-time position, Davis allegedly told the plaintiff that he was "a high risk to the company" because of his race and age.*fn3 Additionally, according to plaintiff, Davis and another of defendant's employees used racial slurs when talking about black persons in the plaintiff's presence, though the comments were not directed at the plaintiff personally.*fn4
Plaintiff has also presented evidence that younger, white employees were allowed to take breaks and use their cell phones but that Davis yelled and cursed at plaintiff for doing the same.*fn5 Further, plaintiff testified in his deposition that Davis made statements to him on a couple of occasions to the effect that plaintiff could not "do what the others do" because plaintiff was about 60 years old. And, plaintiff was allegedly told by another DBS employee that he should start looking for another job because Davis does not like black people.*fn6
DBS maintains that if plaintiff was fired, it was because of his poor job performance. According to defendant, plaintiff repeatedly failed to replace acetylene bottles on the cutting torch when their pressure fell below 50 pounds per square inch and he repeatedly failed to maintain adequate fluid levels in the hydraulic hammer. Additionally, defendant contends that plaintiff's productivity was unacceptably low and that he took excessive breaks and talked on his cell phone during work hours in violation of company policy. It is undisputed that plaintiff was verbally reprimanded multiple times for these performance issues but was never formally disciplined.
On December 11, 2009, Davis and the plaintiff engaged in a heated discussion concerning plaintiff's job performance. At the conclusion of this altercation, plaintiff contends that Davis told him to leave and that he was fired. Defendant maintains that Davis did not terminate plaintiff and that plaintiff instead walked off the job and resigned. At the time, plaintiff was the only African American employed by DBS and was one of defendant's two oldest employees. After plaintiff's separation from defendant, a younger white male was hired to fill plaintiff's position.*fn7 Since taking over the day-to-day operations of DBS, Davis has hired seven new employees, none of whom are black.
Summary judgment is appropriate only when the moving party demonstrates that no genuine dispute of material fact exists and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party who bears the burden of proof at trial on a claim or defense must be able to point to sufficient evidence to support each essential element of the claim or defense in order to avoid summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56(c)(1)(B). All inferences from the evidence are to be viewed in the light most favorable to the non-moving party. Jaramillo v. Adams County Sch. Dist. 14, 680 F.3d 1267, 1268-69 (10th Cir. 2012). A. 42 U.S.C. § 1981
Wrongful termination claims under 42 U.S.C. § 1981 are analyzed under the same standards as similar claims under Title VII. Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). A plaintiff can prove discrimination by direct evidence or by utilizing the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Crowe, 649 F.3d at 1194. The parties here discuss only the McDonnell Douglas framework. Under that familiar framework, the plaintiff must first make out a prima facie case of discrimination. If he does so, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for plaintiff's alleged termination. Once the defendant has satisfied this burden of production, the plaintiff must produce evidence that defendant's proffered explanation for its actions is mere pretext for intentional discrimination. See Crowe, 649 F.3d at 1195.
To make out a prima facie case of wrongful termination on the basis of
race, the plaintiff must prove that: 1) he is a member of a protected
class; 2) he was qualified for the position he held with defendant;
and 3) he was terminated under circumstances which give rise to an
inference of intentional discrimination. See Plotke v. White, 405 F.3d
1092, 1099-1102 (10th Cir. 2005); Baca v. Sklar, 398 F.3d 1210, 1216
(10th Cir. 2005). In this case, it is undisputed that plaintiff is a
member of a protected class and there is evidence that he was
qualified for his position as a general shop laborer.*fn8
Moreover, although defendant maintains that plaintiff quit his job, DBS does not contest for purposes of the
present motion that plaintiff has some evidence from which a jury
might conclude that he was terminated. And since plaintiff was
replaced by a non-black employee, his alleged termination occurred
under circumstances which give rise to an inference of intentional
discrimination. Thus, plaintiff has presented sufficient evidence to
make out a prima facie case of race discrimination. Defendant's
proffered justification for plaintiff's alleged termination is that
plaintiff's job performance was poor and that he violated the
company's cell phone policy. Thus, the burden shifts back to the
plaintiff to offer evidence that DBS's proffered explanation is
pretext for intentional discrimination.
Plaintiff's evidence of pretext is thin. His own conclusory statements that Mr. Davis disliked him to due his race or age, unsupported by any facts, instances or examples beyond plaintiff's own assumptions, prove little. Further, plaintiff's reliance on the doctrine of judicial estoppel smacks more of desperation than a real basis for arguing pretext. The evidence does not suggest that defendant has changed its position in the sense contemplated by the doctrine. It appears to argue now, as it did in the OESC proceeding, that plaintiff quit and plaintiff's own testimony would arguably support an inference to that effect.*fn9 But, as plaintiff continues to argue here that he was fired, defendant further argues that if the jury accepts plaintiff's view that he was fired, then it had reason to do so. The positions do not support application of some judicial estoppel theory.
Nonetheless, the court concludes that plaintiff has presented
sufficient evidence of pretext. Plaintiff has offered evidence that
Davis used or allowed use of the word "nigger" on the job,*fn10
though the words were not directed at him. He has offered
evidence that, several months prior to his alleged termination, Mr.
Davis discussed the increased insurance costs supposedly attributable
to plaintiff as an African American of his age. He offered some
evidence that other white employees were not disciplined or supervised
in the same way as to their cell phone usage or break time. Further,
there is evidence that all seven of Mr. Davis' hires were of white
employees and that white employees replaced him or ...