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Zokari v. Gates

March 17, 2009

SUNDAY A. ZOKARI, PLAINTIFF - APPELLANT,
v.
ROBERT M. GATES, SECRETARY OF THE DEPARTMENT OF DEFENSE, DEFENDANT - APPELLEE.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 04-CV-940-M).

The opinion of the court was delivered by: Hartz, Circuit Judge.

PUBLISH

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

Plaintiff Sunday A. Zokari is an African-American man born in Nigeria but a naturalized citizen of the United States. He was hired by the Defense Contract Audit Agency (DCAA) in May 2000 as an auditor-trainee in Oklahoma City. He was terminated on February 26, 2001, during his one-year probationary period.

Mr. Zokari brought suit in the United States District Court for the Western District of Oklahoma under Title VII of the Civil Rights Act of 1964, alleging (1) discrimination based on his race and national origin and (2) retaliation for refusing to take an English class suggested by his supervisors, who had expressed concern about his accent. The district court granted summary judgment for DCAA on the retaliation claim, but allowed the discrimination claims to proceed to trial. A jury entered a verdict for DCAA on the discrimination claims.

Mr. Zokari contends that (1) he presented sufficient evidence to overcome summary judgment on his retaliation claim; (2) the district court erred in granting DCAA's motion in limine to exclude from trial all evidence regarding his claim that DCAA failed to pay him for his last day of employment; (3) the court improperly excluded the proffered testimony of another African-American employee at DCAA; and (4) the court improperly rejected his requested jury instruction authorizing an inference of discrimination based on his supervisors' comments about his accent.We have jurisdiction under28 U.S.C. § 1291 and affirm.

I. BACKGROUND

There were, of course, disputes below regarding the historical facts. But the only issues to which the disputes relate are the propriety of summary judgment and the rejected instruction. We therefore summarize the evidence in the light most favorable to the appellant, Mr. Zokari, as required in reviewing those two issues. See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1216 (10th Cir. 2008) (on appeal from summary judgment, evidence is viewed in light most favorable to appellant); Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 506 (8th Cir. 1993) (on appeal from denial of requested instruction, "evidence must be examined in the light most favorable to the party proposing the instruction").

DCAA, an agency within the Department of Defense, provides auditing, accounting, and financial-advisory services to the Department. DCAA's Oklahoma City office is a suboffice of the branch office in Richardson, Texas. During Mr. Zokari's employment, Paul Peters was the branch manager of the Richardson office.

On May 8, 2000, Mr. Zokari was hired as an auditor-trainee in the Oklahoma City suboffice, subject to a one-year probationary period. He was initially supervised in the Oklahoma City suboffice by Darrell Patterson, but John Michael Green became his supervisor in July. Green also supervised two other auditor-trainees, Terry Davis and Francine Montgomery, while Patterson supervised one other auditor-trainee, Rebbecca Kerr. Both Patterson and Green were, in turn, supervised by Peters from the Richardson office. Davis, hired in January 2000, only a few months before Mr. Zokari, was the first African-American to work in the Oklahoma City suboffice, and Mr. Zokari was the first Nigerian to work there.

Shortly after Green became his supervisor, Mr. Zokari met with Peters, who expressed concern about his accent and suggested that he take an English class. DCAA's policy was to encourage managers to offer an English class to employees for whom English was a second language. Mr. Zokari rejected the offer, saying that the failure of others to understand his accent resulted from their lack of exposure to people with accents, and that they would get used to it.

In September 2000 Peters and Green met with Mr. Zokari to inquire whether he had taken the English class. Mr. Zokari informed them that he had not. According to Mr. Zokari, their attitudes toward him then markedly changed: Both became hostile, and Green began to give Mr. Zokari vague instructions at work and refused to clarify them. In November 2000 Peters and Mr. Zokari met with a contractor outside the office. The contractor, who had lived in Nigeria for some time, conversed with Mr. Zokari about his homeland. Afterwards, Peters chastised Mr. Zokari for socializing with the contractor.In January 2001 Mr. Zokari requested to be sent to a training seminar, but Green elected to send Kerr, a white, native-born woman, instead. When Mr. Zokari persisted, Green signed the papers so that he could attend, but threw the papers at him.

Mr. Zokari also complains that he received minimal guidance from the auditors supervising his work. His supervisors recorded his errors on internal forms (called A-3s), which were then used as evidence of his poor work performance to justify his termination, whereas the errors of the other three auditor-trainees in the Oklahoma City suboffice were not recorded or used against them.Instead, the other auditor-trainees were given constructive feedback and the opportunity to correct their errors.Moreover, Mr. Zokari's assigned mentor provided only three hours of mentorship, whereas the other auditor-trainees typically received 24 hours.

In late January 2001 Mr. Zokari attended a final meeting with Green and Peters. They discussed his poor work performance and the difficulty others had in understanding him because of his accent. A month later, on February 26, 2001, Mr. Zokari was terminated. He received a termination letter signed by Peters that listed the reasons for his termination: frequent failure to follow up on or correct errors noted by his supervisors; too many repetitive errors in reports and working papers; failure to follow instructions of supervisors; and excessive use of the telephone for personal calls and use of a government computer for non-government work during normal work hours. Mr. Zokari was not paid for his final day of employment until June 2001.

On August 2, 2004, Mr. Zokari, acting pro se, brought suit against DCAA under Title VII of the Civil Rights Act of 1964. His complaint alleged that DCAA discriminated against him on the basis of race and national origin and retaliated "after he opposed illegal activities." Aplt. App. Vol. III at 80. Among the "Background Facts" recited in the complaint is the allegation that DCAA had failed to pay him for his last day of employment, in "violation of Department of Labor guidelines." Id. at 80--81. After obtaining counsel, Mr. Zokari filed an amended complaint that largely repeated verbatim the original complaint.

DCAA filed a motion for summary judgment. The district court granted summary judgment on the retaliation claim, but denied summary judgment on the discrimination claims. Before trial DCAA filed a motion in limine to exclude all evidence regarding Mr. Zokari's claim that DCAA had failed to pay him for his last day of employment. It asserted that the money had been paid and that Mr. Zokari was raising for the first time (in a proposed pretrial order and a proposed instruction) a "'labor'" claim based on the late payment of wages. Id. at 75. The district court granted the motion, agreeing that Mr. Zokari had raised the "'labor claim'" for the first time in "pretrial filings." Id. at 101.

At trial Mr. Zokari offered the testimony of Emmett Holland, an African-American senior auditor in the Richardson office, regarding his experiences as an African-American at DCAA and information he had learned from reviewing employee evaluations in preparation for bringing his own claim of discrimination against DCAA (which he ultimately decided not to pursue). The district court excluded Holland's testimony on the ground that he lacked personal knowledge of relevant discrimination.

Before closing arguments Mr. Zokari requested an instruction permitting the jury to infer discrimination from comments made by Green and Peters about his accent. The district court denied the request, and the jury rendered a verdict for DCAA on Mr. Zokari's discrimination claims.

Mr. Zokari challenges the verdict, contending that the district court erred in granting DCAA's motion in limine regarding his wage claim, in excluding Holland's testimony, and in failing to give his proposed jury instruction. He also appeals the court's award of summary judgment to DCAA on his retaliation claim. We first address the retaliation claim.

II. RETALIATION CLAIM

The district court granted DCAA's motion for summary judgment on Mr. Zokari's retaliation claim. We review the district court's ruling de novo. See Pignanelli, 540 F.3d at 1216. Summary judgment should be granted if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Mr. Zokari contends that his supervisors at DCAA retaliated against him in violation of 42 U.S.C. § 2000e-3(a) by treating him with hostility, disciplining him for poor performance, and eventually terminating his employment because he refused to take an English class offered to him. Section 2000e-3(a) states in pertinent part: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . . ."

In the absence of direct evidence, we review the grant of summary judgment on such a claim under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Medina v. Income Support Div., N.M., 413 F.3d 1131, 1135 (10th Cir. 2005). Under this framework Mr. Zokari bears the initial burden of establishing a prima facie case of retaliation, which has three elements: (1) the plaintiff's "protected opposition" under § 2000e-3(a), (2) an adverse employment action against the plaintiff, and (3) a causal connection between the "protected opposition" and the adverse employment action. Id. at 1135--36. Opposition is protected under § 2000e-3(a) only if it is opposition to a "practice made an unlawful employment practice by Title VII." Petersen v. Utah Dept. of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (brackets and internal quotation marks omitted).

We may assume, without deciding, that Mr. Zokari established the first two elements of his prima-facie case. But his claim of retaliation fails because he cannot establish a causal connection between his protected opposition and the adverse employment action. To establish a causal connection, Mr. Zokari must show that the individuals who took adverse action against him knew of his protected opposition. See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993). As we have explained, "[a]n employer's action against an employee cannot be because of that employee's protected opposition unless the employer knows the employee has engaged in protected opposition." Petersen, 301 F.3d at 1188. The employer must know not only that the employee has opposed an action of the employer (here, the request to take an English class), but that the opposition was based on a belief that the employer's action constituted discrimination prohibited by Title VII (here, racial or national-origin discrimination). See id. As we have explained:

[T]his result is compelled not only by the natural reading of the statutory language, but also by the purpose of the provision. The purpose of § 2000e-3(a) is to let employees feel free to express condemnation of discrimination that violates Title VII. That purpose is hardly served by imposing sanctions upon employers who take action against employees who never communicate their concern about unlawful discrimination.

Id. at 1189.

Although Mr. Zokari may have refused the English class because he felt that the request was discriminatory, he has not presented evidence that he made this basis of his refusal known to his supervisors. He never told them of his belief that their request constituted improper discrimination based on his race or national origin. The only reason he gave Green and Peters for his refusal was that the failure of others to understand him was due to their lack of exposure to people with an accent, a problem that would disappear over time. This explanation would not have informed his supervisors that he was ...


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