A trail court's grant of judgment as a matter of law on the discrimination and retaliation claims raised by a service desk employee was proper, according to the United States Court of Appeals for the Tenth Circuit.  In Aman v Dillon Companies Inc., an employee, terminated after being transferred to a service desk position because a work injury precluded his continued work in the produce department, challenged a trial court's grant of judgment as a matter of law after trial on multiple claims including, among others, claims of hostile work environment and termination on the basis of race.  The court granted judgment as a matter of law after determining that "all of the evidence, viewed in the light most favorable to the nonmoving party, reveals no legally sufficient evidentiary basis to find for the nonmoving party."  Disagreeing with the court's decision, the employee appealed.

 

In concluding that the trial court's grant of judgment as a matter of law was proper as to both of the aforementioned claims, the Tenth Circuit reviewed all the evidence presented at trial and concluded that it presented insufficient evidence to support the plaintiff's claims.  With respect to the hostile work environment claim (brought under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981), the court reasoned that the evidence introduced failed to show that the employee's work environment was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."  Some of the conduct that the plaintiff alleged as contributing to the hostile work environment occurred outside of the limitations period (300 days from the discriminator conduct under Title VII and within 4 years of the alleged conduct under 42 U.S.C. 1981).  While the statements and actions may have been construed as inflammatory (including calling the plaintiff an "African monkey," an "African lion" and a "lazy African"), they occurred outside of the limitations period and therefore could not be considered in support of the hostile work environment claim.  This, coupled with the fact that the vast majority of the proffered evidence that occurred within the limitations period involved facially neutral conduct (i.e., procedural irregularities related to his termination, as well as his reclassification to the service desk position due to medical restrictions and his claim that managers doubted the severity of his physical pain), supported the Tenth Circuit's conclusion that the plaintiff offered insufficient evidence to support a finding that these actions were motivated by race or that they were severe or pervasive.

 

With respect to the discriminatory termination claim, the employer proffered evidence showing that the plaintiff was legitimately fired for being absent without leave.  The absence came after the employee learned that he would be reclassified to the service desk position, which had a substantially lower rate of pay.  The employee had requested a leave of absence instead of the reclassification, which was denied.  The employee subsequently called in sick for several weeks before being terminated for being absent without leave.  In concluding that judgment as a matter of law was properly granted as to this claim, the Tenth Circuit reasoned that the employee had failed to offer any evidence to establish that the legitimate reason that the employer proffered was pretextual of discrimination.  While the employee claims that he called the absences in according to the company's sick policy, the policy required him to obtain approval form the store manager or assistant store manager to have an absence excused and to obtain prior approval for leave of more than five days.  The record shows that the employee failed to do either of these things.  As such, the court reasoned, there was insufficient evidence to conclude that the employer's reason for termination was pretextual.  For these reasons, the court affirmed the trial court's grant of judgment as a matter of law as to these counts.  Aman v. Dillon Companies, Inc.