United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
J. CAUTHRON UNITED STATES DISTRICT JUDGE.
was employed by Defendant as the Stephens County Fair and
Expo Center Director from 2010 until December 18, 2017.
Plaintiff's termination from that job is the basis of
this lawsuit. Plaintiff alleges he was terminated because he
had reported another Fairgrounds employee's sexual
harassment complaint and Defendant retaliated for that
action. Defendant denies these allegations and argues that
Plaintiff was terminated because the findings of an audit
conducted by the Oklahoma Office of the State Auditor and
Inspector revealed potential wrongdoing and deficiencies in
his job performance.
March of 2016, Fairgrounds employee Lane made a comment to
employee Davis that Plaintiff construed as sexual harassment.
Plaintiff reported that to County Commissioner McCarley.
Then, on January 31, 2017, employee Davis reported to
Plaintiff alleged behavior by a different Fairgrounds
employee that Davis considered to be sexually harassing.
Plaintiff relayed that incident to Commissioner Churchman.
Prior to the second report, on October 3, 2016, the Board had
proposed a Fairgrounds audit be conducted by the State
Auditor's Office. In December of 2016, the Board approved
hiring the Auditor's Office to conduct the audit. The
final request to the State Auditor Inspector's Office
occurred in April of 2017.
the audit findings were returned, in November 2017, it was
the opinion of Commissioner Churchman and Commissioner Bowen
that the audit's findings supported termination of
Plaintiff because of poor job performance. Indeed, it is
undisputed Churchman and Bowen both believed that the audit
provided grounds to terminate Plaintiff's employment. As
noted, Plaintiff was terminated on December 18, 2017.
brought the present action alleging that his termination was
in violation of Title VII because it occurred in retaliation
for his reports of sexual harassment on behalf of Fairgrounds
employee Davis. Defendant denies this allegation and argues
that there was a legitimate, non-discriminatory purpose for
Plaintiff's termination. In support of its position,
Defendant has filed a Motion for Summary Judgment raising two
arguments. First, Defendant argues that Plaintiff cannot make
a prima facie case of retaliation because the time period
between the report of harassment and ultimate termination was
lengthy. Second, Defendant argues that Plaintiff cannot
demonstrate that the grounds offered for Plaintiff's
termination were a mere pretext.
judgment is appropriate if the pleadings and affidavits show
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). A[A] motion for summary judgment should
be granted only when the moving party has established the
absence of any genuine issue as to a material fact.
Mustang Fuel Corp. v. Youngstown Sheet & Tube
Co., 561 F.2d 202, 204 (10th Cir. 1977). The movant
bears the initial burden of demonstrating the absence of
material fact requiring judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper
disposition of the claim. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the movant carries
this initial burden, the nonmovant must then set forth
specific facts outside the pleadings and admissible into
evidence which would convince a rational trier of fact to
find for the nonmovant. Fed.R.Civ.P. 56(e). These specific
facts may be shown by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings
themselves. Celotex, 477 U.S. at 324. Such
evidentiary materials include affidavits, deposition
transcripts, or specific exhibits. Thomas v. Wichita
Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.
1992). The burden is not an onerous one for the nonmoving
party in each case, but does not at any point shift from the
nonmovant to the district court. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). All
facts and reasonable inferences therefrom are construed in
the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Plaintiff does not present direct evidence of retaliation,
the McDonnell-Douglas burden-shifting framework
applies. To state a prima facie case of retaliation under
Title VII Plaintiff “‘must show that: (1) he
engaged in protected activity; (2) he suffered an adverse
employment action; and (3) there was a causal connection
between the protected activity and the adverse
action.'” Vaughn v. Epworth Villa, 537
F.3d 1147, 1150 (10th Cir. 2008) (quoting Timmerman v.
U.S. Bank, N.A., 483 F.3d 1106, 1123-24 (10th Cir.
concedes that Plaintiff has satisfied the first two elements
of a prima facie case but argues that he cannot satisfy the
third. According to Defendant, in his attempt to satisfy the
causal connection requirement, Plaintiff argues an inference
of a retaliatory motive exists because the protected conduct
was closely followed by an adverse action. Defendant responds
noting that the length of time between Plaintiff reporting
the alleged sexual harassment and his ultimate termination
was nearly a year. According to Defendant, this makes the
adverse action too temporally remote to suggest a causal
connection. Indeed, the Tenth Circuit has held that a 9-month
period between the protected activity and the adverse action
is “too temporally remote to support an inference of
causation.” Antonio v. Sygma Network, Inc.,
458 F.3d 1177, 1182 (10th Cir. 2006). Defendant argues that
since Plaintiff's termination did not closely follow the
alleged protected activities, he “must offer additional
evidence to establish causation.” O'Neal v.
Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.
2001). According to Defendant, Plaintiff has failed to offer
response, Plaintiff argues the time between his report of
sexual harassment and the beginning of the retaliation is
much shorter than Defendant suggests. Plaintiff notes that in
early March of 2017, Commissioner Churchman placed
Plaintiff's termination on the Board agenda for executive
session. This action was only a few weeks after the second
report of harassment. Plaintiff directs the Court to notes
from that Board session where Commissioner Churchman stated
that Plaintiff “has suggested to a current employee
that she litigate against the county because of her job
title.” (Pl.'s Resp., Dkt. No. 47-4, p. 1.)
According to Plaintiff, this is evidence of Defendant's
intent to retaliate against him for engaging in protected
conduct. Plaintiff asserts that beginning with that March
Board meeting, the wheels were set in motion trending towards
his termination; thus, Plaintiff argues, when examining the
temporal proximity, the Court must consider those activities.
stage, the Court must view the evidence in the light most
favorable to Plaintiff. Matsushita Elec. Indus. Co.,
475 U.S. at 587. Viewed in this manner, the Court finds
Plaintiff has raised a question of material fact regarding
the causal connection and thereby established a prima facie
case of retaliation.
argues that even if Plaintiff makes a prima facie case, his
claim still fails. According to Defendant, Plaintiff cannot
demonstrate that the basis for his termination was pretextual
and for the purpose of hiding discriminatory actions. Here,
Defendant has proffered a legitimate non-discriminatory basis
for Plaintiff's termination, i.e., Commissioners
Bowen's and Churchman's belief that the audit report
supported that action. Thus, the burden shifts to Plaintiff to
overcome that proffer “by demonstrating weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions” in those reasons, thereby establishing
them as pretextual. See Luster v. Vilsack, 667 F.3d
1089, 1092 (10th Cir. 2011) (citing Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir.
attempts to meet his burden by offering several arguments
related to the findings of the audit, in effect arguing that
he holds opinions about the facts different than the auditor.
However, Plaintiff has failed to offer any evidence
demonstrating that there is a question regarding Commissioner
Churchman's or Commissioner Bowen's belief that the
audit offered a legitimate ground for terminating Plaintiff.