The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This matter comes before the Court on motions for summary filed by plaintiff Darren Jones and defendants John Boyle, William Ruete, Robert Gasparovic, Englewood Tire Distributors, Inc. and Englewood Tire Wholesale, Inc. (collectively "defendants"). Jones alleges that defendants violated Title VII of the Civil Rights Act of 1964 by paying him less than his co-workers because he is black. Defendants concede that Jones was paid less than two of his co-workers for several years, but attribute the wage difference to Jones's poor work performance and argue that Jones has failed to produce any evidence of discriminatory intent.
For the reasons stated below, Jones's motion for summary judgment (D.E. 65) is denied, and defendants' motion for summary judgment (D.E. 61) is granted.
Jones worked as a driver and warehouse employee for Englewood Tire Distributors ("ETD"), a wholesaler of trucks and tires, from July 1997 to July 2007, when he voluntarily resigned.*fn2 Defendant Boyle is EDT's owner, while defendants Gasparovic and Ruete were Jones's supervisors. Jones was an at-will employee at EDT, which had no union and which retained Jones despite downsizing its workforce several times during his employment. (Def's Statement of Uncontested Material Facts in Supp. of Def's Mot. for Summ. J ("Def's Statement"), D.E. 61-6 ¶¶ 18-20; Def's Mov. Br., D.E. 61 at 3.)
After obtaining a "right to sue" letter from the Equal Employment Opportunity Commission, Jones brought this complaint in June 2008, alleging "underpayment of wages/salary based solely on race and not performance." (See D.E. 1-3.) The Court has jurisdiction because Jones's claim is made pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e(16).
Jones's complaint centers on the fact that he was paid less than two-workers, one Hispanic and the other Portuguese. When he was hired in 1997, Jones's salary was eight dollars per hour, and he received annual raises of fifty-cents per hour. (Def's Statement ¶¶ 39-45.)
When he resigned in July 2007, Jones was making $13.50 per hour. (Id.) The parties agree that for a certain period Jones was paid less than his two co-workers-Jones claims the difference at one point reached as high as $2.50. (Pt's "Preliminary Statement," D.E. 72 at 3.) However, defendants note that during the first five years of his employment, Jones was paid the same as the two co-workers in question, and only after the sixth year did his salary begin diverging from those of the other two. (Def's Statement ¶ 45.)
Defendants contend that Jones's job performance "was consistently sub-par, and his personnel file reflects very poorly on him" (Def's Mov. Br. at 1), and they cite a long history of Jones's work-related problems, including multiple warnings for misconduct and mistakes, accidents with his delivery truck, and a "pattern of insubordination, hostility to co-workers and other belligerent conduct." (Id. at 3.) Jones's opposition fails to dispute or even discuss many of defendants' material facts, including that Jones's supervisors "verbally reprimanded or warned him about his delivery completion time . . . as well as his conduct and demeanor with them," and that "*o at least one occasion, plaintiff asked a [co-worker] to 'slow down' on the completion of delivery routes because plaintiff thought the disparity reflected badly on him." The core of defendants' evidence of Jones's poor job performance is a list of 28 "warnings, incidents/accidents, and other occurrences." (Def's Statement ¶ 32.) Jones raises various challenges to this list, including that no written or verbal warnings were ever issued to him, that the warnings do not "meet *defendants' own self-imposed standards for authentication" and that defendants could have fired him based on the cited failings but did not. (Pt's Opp'n to Def's Uncontested Material Facts ("Pt's Opp'n Statement"), D.E. 67 ¶ 3; Pt's "Preliminary Statement" at 3.)
However, the Court, having reviewed Jones's testimony regarding each of these incidents at his deposition, when he was subject to close questioning by counsel, finds that of the 28 incidents, Jones fully denied only four (including a complaint that he took too long to complete his delivery routes). (Tr. of Dep. of Darren Jones, Nov. 3, 2009 ("Tr."), D.E. 61, ex.d at 55:11-19, 57:1-59:16.) In at least 21 instances, though he frequently stated that he did not know the exact date of occurrence , Jones admitted the substance of the alleged incident,.
In response to one charge that he punched a co-worker, Jones insisted instead that he shoved the co-worker. (Tr. 65:4-68:10.) The other 20 incidents that he admits include: taking an unauthorized break (Tr. 42:8-43:16); not calling the warehouse upon reaching the end of his route (Tr. 43:17-26); driving with a cargo door askew and losing merchandise along his route (Tr. 47:22-48:15); damaging his work vehicle (Tr. 50:13-51:2); damaging customer's property with his work vehicle on at least two occasions (Tr. 51:17-51:25 and 91:22-92:20); delivering the wrong tires to customers on multiple occasions or else not delivering enough tires (Tr. 52:18-53:6; 48:16-49:1; 52:1-17; and 52:18-55:10); turning in invoices that lacked customers' signatures (Tr. 51:3-16); having a 37-minute cell phone conversation with a fellow worker on a company phone (Tr. 55:20-56:25); getting his work vehicle stuck in the mud during a delivery (Tr. 59:17-60:6); leaving his delivery truck to get a drink and returning to find a smashed mirror (63:6-15); not picking up a check from a dealer (Tr. 63:16-64:6); not taking his work cell phone with him (Tr. 64:7-17); leaving documents with a dealer (Tr. 64:18-65:3); and failing to take a call from the office and being rude to a manager when questioned about the incident (Tr. 74:18-75:17).
In August 2006, Jones told Boyle that he had discovered a pay difference between himself and two co-workers, but he did not complain that he believed he was being paid less because of his race. (Def's Statement ¶¶ 52--59.) Jones testified that never heard an EDT manager, including Boyle, "make any disparaging remarks about him or to him," and he never heard an EDT employee or supervisor "make any offensive remark" about his race color. (Id. ¶
27.) Nor does Jones dispute that EDT promoted a black co-worker to the position of assistant manager after three years on the job (Def's Statement ¶ 49; Pt's Opp'n Statement ¶ 5), though he does complain that the worker's promotion "denied that opportunity to others whose employment pre-dates his." (Pt's Preliminary Statement at 7.) In his deposition, Jones describes how he concluded that he was being paid less because of his race "by process of elimination." (Tr. 123:21--129:18.)His resignation letter of July 13, 2007, ...