1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Honorable Marcia S. Krieger 

Civil Action No. 11-cv-02407-MSK-KLM 

DAMON FOREMAN, 

 Plaintiff, 

v. 

WESTERN FREIGHTWAYS, LLC; and 

NEW CENTURY TRANSPORTATION, INC., 

 Defendants.

______________________________________________________________________________ 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

MOTION FOR SUMMARY JUDGMENT 

______________________________________________________________________________ 

THIS MATTER comes before the Court pursuant to the Defendants’ Motion for 

Summary Judgment (# 51, as amended # 52), Mr. Foreman’s response (# 59), and the 

Defendants’ reply (# 64). 

FACTS

 The Court briefly summarizes the facts here, and elaborates as necessary in its analysis. 

In March 2005, Mr. Foreman, a black male who was age 62 at the time of the key events herein, 

was hired by Defendant Western Freightways (“Western”) as an Account Executive. His job 

duties were in the nature of sales, locating customers with loads to ship and persuading them to 

use Western to ship them. Shortly after Mr. Foreman began working at Western, the company 

was acquired by Defendant New Century Transportation (“New Century”). The acquisition 

resulted in some changes to Mr. Foreman’s supervision, but not to his job duties. 

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 Beginning in July 2008, the Defendants issued Mr. Foreman a written warning, citing a 

decline in the sales revenue he was generating. On January 30, 2009, the Defendants issued Mr. 

Foreman two separate written warnings, one for failing to communicate certain information to 

dispatchers and a second one citing several instances in which Mr. Foreman mishandled dealings 

with a customer. In March 2009, the Defendants put Mr. Foreman on a 90-day Performance 

Improvement Plan (“PIP”), requiring him to make a certain number of calls to customers per 

month and to improve his revenue generation, among other things. On June 19, 2009, the 

Defendants noted that Mr. Foreman had “not achieved the goals as set forth [but had] made some 

progress,” and extended the PIP for an additional 60 days. In August 2009, the Defendants again 

advised Mr. Foreman that “your performance continues to remain at an unacceptable level,” 

giving him an additional 30-day extension on the PIP; the Defendants granted an additional 60-

day extension on the PIP in September 2009. On November 25, 2009, still dissatisfied with Mr. 

Foreman’s performance, the Defendants terminated him. 

 In the meantime, in February 2009, Mr. Foreman lodged complaints with the Defendants’ 

Human Resources Department, raising issues about a discriminatory comment by a supervisor, 

allegations that he had received inadequate training, and complaints that the discipline imposed 

against him was unwarranted. On July 14, 2009 (several weeks after his PIP had been extended 

for the first time), Mr. Foreman filed a formal Charge of Discrimination with the Equal 

Employment Opportunity Commission, generally alleging “differential treatment” and 

specifically complaining about the January 30, 2009 warnings. Mr. Foreman’s charge stated that 

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“other similarly situated employees have done the same thing and were not similarly 

disciplined.”1

 

 Mr. Foreman commenced this action, alleging three nominal claims: (i) a hybrid claim 

asserting both race discrimination and retaliation in violation of 42 U.S.C. § 1981; (ii) a hybrid 

claim arising under Title VII, 42 U.S.C. § 2000e et seq., alleging race-based discrimination, a 

racially-hostile working environment, and retaliation; and (iii) age discrimination in violation of 

the Age Discrimination in Employment Act, 29 U.S.C. § 626. The Court understands that Mr. 

Foreman has since agreed to withdraw the age discrimination claim, and thus, the Court does not 

consider it. 

 The Defendants now move for summary judgment against Mr. Foreman on all of his 

claims. The grounds for that motion are discussed in detail below.2

ANALYSIS

A. Standard of review

 Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if 

no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). 

Summary adjudication is authorized when there is no genuine dispute as to any material fact and 

 

1

 Mr. Foreman filed a second Charge of Discrimination on May 17, 2010, long after his 

termination. That charge listed only “retaliation” as the basis for the new charge of 

discrimination, although the narrative portion mentioned “a hostile work environment because 

of my race, color, age, [and] disability” in addition to alleging that his termination was 

retaliatory. 

2

 The Defendants make a perfunctory argument, unsupported by meaningful legal authority 

or a significant factual record, that Defendant New Century is not Mr. Foreman’s employer. 

Finding this argument insufficiently-developed, the Court declines to consider it at this time. 

Should the case proceed to a judgment against the Defendants, the Court will entertain argument 

and evidence as to the proper person(s) against whom that judgment should run. 

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a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs 

what facts are material and what issues must be determined. It also specifies the elements that 

must be proved for a given claim or defense, sets the standard of proof and identifies the party 

with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 

Kaiser-Francis Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual 

dispute is Agenuine@ and summary judgment is precluded if the evidence presented in support of 

and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter 

for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment 

motion, a court views all evidence in the light most favorable to the non-moving party, thereby 

favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 

2002). 

 If the movant has the burden of proof on a claim or defense, the movant must establish 

every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 

56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the 

responding party must present sufficient, competent, contradictory evidence to establish a 

genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th 

Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine 

dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material 

fact, no trial is required. The court then applies the law to the undisputed facts and enters 

judgment. 

 If the moving party does not have the burden of proof at trial, it must point to an absence 

of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. 

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If the respondent comes forward with sufficient competent evidence to establish a prima facie 

claim or defense, a trial is required. If the respondent fails to produce sufficient competent 

evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of 

law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

B. Race-based claims

 The Court begins with Mr. Foreman’s race-based claims – his claims for race 

discrimination and a racially-hostile working environment under both Title VII and 42 U.S.C. § 

1981. Although Mr. Foreman invokes two different statutes, the analysis of his claims is the 

same under both. See Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000); Witt v. Roadway 

Express, 136 F.3d 1424, 1432 (10th Cir. 1998). 

 1. Hostile environment harassment 

 The Court begins with Mr. Foreman’s claims that he was subjected to a racially-hostile 

working environment. To establish this claim, Mr. Foreman must show: (i) that he was subjected 

to intimidation, ridicule, or insult; (ii) that such conduct was directed at him because of his race; 

(iii) that the conduct was sufficiently severe, in both an objective and subjective sense, to alter 

the terms and conditions of his employment; (iv) that it was unwelcome; and (v) that there is 

some basis to hold the Defendants liable for that conduct. See generally Faragalla v. Douglas 

County School Dist., 411 Fed.Appx. 140, 151-52 (10th Cir. 2011) (unpublished), citing Tademy v. 

Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008). 

 Mr. Foreman’s racially-hostile work environment claim arises primarily from two alleged 

comments made by Charlie Zanger, New Century’s Vice President of Sales (and Mr. Foreman’s 

supervisor). The first was made on or about January 12, 2009, while driving to visit a customer 

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with Mr. Foreman. Mr. Zanger and Mr. Foreman had a conversation about Mr. Foreman’s 

ownership of horses. During that conversation, Mr. Zanger remarked to Mr. Foreman, “you 

know, you are the first black cowboy I have ever met.”3

 Second, Mr. Foreman testified that two 

co-workers, Mark Cole and Jimmy Reed, told him that they had each heard Mr. Zanger use the 

word “nigger” on one occasion.4

 Mr. Foreman admits that Mr. Zanger never used that word in 

Mr. Foreman’s presence, and his only knowledge of the matter arises from what he was told by 

Mr. Cole and Mr. Reed. 

 The Court finds that these comments fail to amount to an actionable racially-hostile 

working environment. As to the “black cowboy” reference, the Court cannot say that the remark, 

in the context it occurred, amounted to “intimidation, ridicule, or insult” at all. The exchange, as 

characterized by a written statement by Mr. Zanger (which Mr. Foreman cites for its truth), 

occurred as part of an otherwise “pleasant discussion”5

 about Mr. Foreman’s interests. Mr. 

Zanger recalls that Mr. Foreman “laughed” at the comment and that “our conversation regarding 

his travels with his horses throughout the country continued.” Mr. Foreman’s own testimony 

acknowledges that he “chuckled it off” and did not indicate to Mr. Zanger that he felt the 

 

3

 Mr. Foreman’s deposition testimony appears to reflect that, besides being offended by 

Mr. Zanger’s reference to his race, Mr. Foreman was also offended by being called a “cowboy.” 

He prefers the term “equestrian.” 

4

 Mr. Cole’s affidavit states that in January 2009, Mr. Zanger mentioned that Mr. Zanger’s 

son was in trouble with the law, and Mr. Zanger was concerned that his son “not be in jail with a 

bunch of niggers.” 

 Mr. Reed’s affidavit states that, in or about May 2008, he was on a sales call with Mr. 

Zanger when Mr. Zanger “refer[ed] to [Mr.] Foreman as a ‘nigger’ and a ‘black cowboy,’” but 

provides no further elaboration. 

5

 Mr. Foreman’s deposition testimony insists that “it was not a discussion . . he was asking 

questions, I was answering them.” 

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comment was inappropriate. One might (as Mr. Foreman does) maintain that it was unnecessary 

for Mr. Zanger to acknowledge Mr. Foreman’s race when remarking upon his hobbies, and 

indeed, one might plausibly contend that Mr. Zanger’s comment reflects ignorance or stereotypes 

Mr. Zanger holds about black people, cowboys, or both. But absent some indicia that the 

comment was somehow intended by Mr. Zanger to demean or belittle Mr. Foreman, it amounts 

to little more than a simple acknowledgment by Mr. Zanger of Mr. Foreman’s race. 

 Mr. Zanger’s alleged use of the word “nigger” is more troublesome. There can be no 

debate that the use of the word is inherently insulting and offensive, and that it has no nondiscriminatory use in the workplace. However, even taking the record in the light most favorable 

to Mr. Foreman – giving full credence to Mr. Cole and Mr. Reed’s contentions – the record 

nevertheless reflects that Mr. Zanger used the word on only two occasions, neither time in Mr. 

Foreman’s presence. In Schwapp v. Town of Avon, 118 F.3d 106, 110-111 (2d Cir. 1997), the 

Second Circuit noted that “for racist comments, slurs, and jokes to constitute a hostile working 

environment, there must be more than a few isolated incidents of racial enmity . . . [rather,] there 

must be a steady barrage of opprobrious racial comments.” Schwapp found more than ten 

racially-hostile comments over a 20-month period (four of which were made in the black 

employee’s presence, two of those involving the use of the word “nigger,” along with several 

additional instances of that and other epithets being used outside of the employee’s presence) 

sufficiently numerous to permit a hostile environment claim. By contrast, in Concey v. New York 

State Unified Court System, 2011 WL 4549386 (S.D.N.Y. Sept. 30, 2011) (unpublished), the 

court found that three instances of a supervisor referring to a black employee as “boy,” and 

another instance of the supervisor mocking the employee’s accent, all over a four-year period 

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was insufficiently severe and pervasive to permit a racially-hostile work environment claim to 

proceed. The Concey decision cites to numerous other decisions in which even more frequent 

use of harsher epithets was also found to be insufficient. Id., citing, e.g., Steambridge v. City of 

New York, 88 F.Supp.2d 276, 286 (S.D.N.Y 2000), and Holt v. Roadway Package Systems, Inc., 

506 F.Supp.2d 194, 204 (W.D.N.Y. 2007). 

 Taking the entirety of Mr. Foreman’s allegations as a whole, this Court cannot say that 

two instances of Mr. Zanger using the word “nigger” outside of Mr. Foreman’s presence, plus 

the instance in which Mr. Zanger referred to Mr. Foreman as a “black cowboy,” during a period 

of more than three-years, rise to the level of an objectively-severe hostile environment. In 

assessing the objective severity of a course of conduct, this Court considers factors such as the 

frequency of the offensive conduct; its severity – that is, whether it is physically threatening or 

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an 

employee’s work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 

Although two of the remarks here are indefensible, their severity is diminished somewhat by 

their second-hand nature,6

 and are even further diminished by their infrequency. Compare 

Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994) (co-worker’s single reference to black 

employee as “nigger” and another co-worker remark threatening to report him to the Ku Klux 

Klan, along with other general insults, insufficiently pervasive to establish racially-hostile work 

 

6

 Admittedly, “derogatory comments need not be directed at or intended to be received by 

the victim to be evidence of a hostile work environment.” Hernandez v. Valley View Hosp. 

Assn., 684 F.3d 950, 959 (10th Cir. 2012). However, there are necessarily qualitative differences 

in severity between: (i) hearing second-hand that a speaker has used a racial epithet when 

referring to someone else, (ii) hearing second-hand that a speaker has used a racial epithet when 

talking about the plaintiff employee himself, (iii) the use of a racial epithet by the speaker, in the 

employee’s presence, referring to others; and (iv) the employee being directly addressed with the 

racial epithet by the speaker. 

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environment). None of the remarks in question are physically threatening, and none of them 

directly interfered with Mr. Foreman’s ability to perform his job (e.g. if Mr. Zanger made the 

remarks in order to distract Mr. Foreman from his job duties or disrupt his ability to perform the 

tasks, or discouraged him from having contact with Mr. Zanger that was essential to carrying out 

his duties). Viewing the record as a whole, in the light most favorable to Mr. Foreman, the Court 

cannot say that he has demonstrated a course of conduct that arises to the requisite level of 

objective severity. Accordingly, the Court grants summary judgment to the Defendants on Mr. 

Foreman’s hostile work environment claims. 

 2. Disparate treatment 

 The Court then turns to Mr. Foreman’s disparate treatment claim. Mr. Foreman contends 

that the warnings issued to him, his placement on a PIP, and his eventual termination all reflect 

discrimination against him on the basis of his race. 

 To establish a claim of disparate treatment discrimination, Mr. Foreman must first 

establish a prima facie case, showing that: (i) he is in a protected class; (ii) he met the objective 

qualifications for his position; (iii) he suffered an adverse employment action; and (iv) the 

adverse action arose in circumstances giving rise to an inference of discrimination. If Mr. 

Foreman carries that burden, the Defendants are obligated to articulate a legitimate, nondiscriminatory reason for the adverse action(s), and Mr. Foreman bears the ultimate burden of 

showing that the Defendants’ proffered reason is a pretext for discrimination. See e.g. Barlow v. 

C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012). 

 The Defendants contend that the warning letters and placement of Mr. Foreman on a PIP 

do not, of themselves, constitute actionable adverse employment actions, and that his race 

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discrimination claims should be limited to his termination. As a general rule, only actions that 

result in “a significant change in employment status, such as hiring, firing, failing to promote, 

reassignment with significantly different duties, or a decision causing a significant change in 

benefits” will constitute an adverse employment action for purposes of a disparate treatment 

claim. Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006). 

Numerous cases recognize that placing an employee on a performance improvement program 

will not typically constitute an adverse action. Id. at 1224 (“a PIP, standing alone, is not an 

adverse employment action”); Anderson v. Clovis Mun. Schools, 265 Fed.Appx. 699, 704 (10th

Cir. 2008). Similarly, a written warning will only constitute an adverse action “if it effects a 

significant change in the plaintiff’s employment status.” Anderson, 265 Fed.Appx. at 704-05, 

citing Haynes, 456 F.3d at 1224. A warning that demotes an employee, alters his pay, or 

significantly change his responsibilities, on the other hand, might be sufficiently adverse. Id.

 Here, neither the warnings issued to Mr. Foreman, nor the PIP, had any significant effect 

on his pay, benefits, work assignments, or employment status. The warning letters simply 

informed Mr. Foreman of the factual basis of New Century’s concerns, advised him of the policy 

New Century intended him to follow, and warned him that further instances of policy violations 

“may result in disciplinary measures up to and including discharge.” He does not contend, much 

less point to evidence demonstrating, that the issuance of the warnings affected his work or 

increased his exposure to potential termination. Similarly, the PIP recited examples of New 

Century’s dissatisfaction with his performance, and advised him of specific goals he was 

required to accomplish: “increase your daily revenue to your projected revenue goals” (as shown 

on an “attached sheet”), “make a minimum of 140 calls a month to different customers,” and 

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“improve your communication with dispatch, rates, and operations.” The PIP did not remove job 

duties, reduce Mr. Foreman’s pay or benefits, or otherwise expose him to any greater risk of 

termination than his performance problems already presented. Thus, neither the warnings nor 

the PIP constitute an adverse employment action. 

 Mr. Foreman relies on Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 

1998). There, the court found that an employer’s issuance of twenty written warnings to an 

employee over a two-year period constituted an adverse employment action because “the record 

indicates that the more warnings an employee received, the more likely he or she was to be 

terminated for a further infraction.” Id. Roberts does not identify the evidence in the record that 

warranted the conclusion, making it unclear whether the case presented a particular company 

policy that increased the likelihood of termination (e.g. a progressive discipline policy that 

escalated potential punishments for future infractions based on prior instances of discipline) or 

merely offered the more prosaic situation where an employee who begins to incur repeated 

warnings is more likely to face termination simply due to souring relations and hardening 

attitudes (both the employee’s and management’s). Certainly, the 10th Circuit in Haynes did not 

understand Roberts to stand as a generalized exception to the rule that written warnings do not 

typically constitute adverse actions, as Haynes expressly distinguishes Roberts, finding the 

warnings and PIP issued to the employee were not adverse actions. Thus, the Court finds that 

neither the written warnings issued to Mr. Foreman, nor his placement on a PIP, constitute an 

adverse employment action sufficient to support a disparate treatment claim. 

 That leaves only Mr. Foreman’s termination as an adverse employment action sufficient 

to support a prima facie claim. Because the Defendants have come forward with a legitimate, 

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non-discriminatory reason for that action – that Mr. Foreman’s generated insufficient revenue -- 

the Court will assume that Mr. Foreman can establish a prima facie case. Thus the question is 

whether Mr. Foreman can show that the Defendants’ proffered reason is a pretext for 

discrimination. 

 Because the Defendants’ stated justification for Mr. Foreman’s termination is 

dissatisfaction with his performance, the Court pauses to acknowledge that the question of 

pretext is relatively narrow. The Court does not “ask whether [the Defendant’s] decision” that 

Mr. Foreman’s performance was unsatisfactory “was wise, fair, or correct.” Johnson v. Weld 

County, 594 F.3d 1202, 1211 (10th Cir. 2010). Employers are permitted to make mistakes in 

personnel decisions, to make bad or unfair decisions, or to act impulsively or irrationally, so long 

as an employee’s protected classification does not motivate the decision. Thus, it is not 

sufficient for an employee like Mr. Foreman to show merely that the Defendants “got it wrong”; 

he must show that the Defendants “didn’t really believe [their] proffered reasons for action,” 

such that they “may have been pursuing a hidden discriminatory agenda.” Id. 

 An employee attempting to show that an employer’s proffered explanation for an action 

is pretextual must show that the explanation is “so incoherent, weak, inconsistent, or 

contradictory that a rational factfinder could conclude” it to be unworthy of belief. Id., citing 

Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1197 (10th Cir. 2008). He may, for example, 

seek to show that the employer treated similarly-situated of a different protected class more 

favorably. Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011). However, for an individual 

to be “similarly-situated” to the employee, he or she must be similar in all material respects, 

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being subject to the same performance standards and the same supervision. Amburu v. Boeing 

Co., 112 F.3d 1398, 1404 (10th Cir. 1997). 

 Here, Mr. Foreman first addresses the Defendants’ contention that his revenue generation 

figures for 2009 were unsatisfactory by comparing himself to other Account Executives working 

for the Defendants. The record indicates the monthly revenue figures for each of 7 Account 

Executives in 2009, and of those 7, Mr. Foreman’s performance is clearly inferior to that of Carl 

Morgan and Rebecca Neil, each of whom generated nearly twice as much revenue each month as 

he did. Mr. Foreman’s performance is roughly comparable to that of John Thompson, and 

somewhat better than that of Mark Cole. Thus, the Court examines their situations. 

 The Defendants contend that Mr. Thompson (who is white), is not similarly-situated to 

Mr. Foreman because he serviced a geographically-large but sparsely-populated territory, which, 

as Jennifer Hooper testified, “just didn’t warrant the kind of revenue that [a] Denver salesman 

[like Mr. Foreman] did.” Thus, the Defendants’ contention is that Mr. Thompson is not 

“similarly-situated” to Mr. Foreman because he was not subject to the same performance 

standards or expectations. Mr. Foreman’s response does not refute this contention. He does not 

deny that Mr. Thompson’s territory provided more challenges or that the Defendants had lower 

revenue expectations for Mr. Thompson’s territory than they did for his. Mr. Foreman’s only 

reference to Mr. Thompson in his response brief is a statement, unsupported by citation to 

evidence, that “Defendants make allowances for [Mr.] Thompson, apparently, for his large and 

sparsely populated territory, [but] no such allowances are given to Damon Foreman for any 

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difficulties with his territories.”7

 Because Mr. Foreman does not specifically dispute that Mr. 

Thompson was evaluated according to less-stringent criteria, he is not “similarly-situated” to Mr. 

Foreman for pretext purposes. 

 As to Mark Cole (who is white), the record reflects that Mr. Cole’s revenue figures 

through 2009 were generally about 20% worse than Mr. Foreman’s. However, the record 

reflects that Mr. Cole was also terminated by the Defendants. Mr. Cole’s own affidavit states 

that he was terminated in July 2009 because he “was not meeting [his] sales goals.” Thus, far 

from supporting Mr. Foreman’s contention that the Defendants’ explanation for his termination 

was a pretext for race discrimination, Mr. Cole’s situation somewhat refutes that contention, 

insofar as the Defendants also terminated a white Account Executive for the same reasons -- 

poor revenue generation -- during the same time period. Indeed, Mr. Cole’s affidavit reflects 

many of the same complaints that Mr. Foreman levels at the Defendants: that he was never given 

any concrete sales quotas by the Defendants, and the quotas that were ultimately given to him 

were unrealistically high. But the fact that the Defendants terminated Mr. Cole badly undercuts 

Mr. Foreman’s contention here that the bad treatment afforded him was racially-motivated. It 

may be that the Defendants were unfair to or unrealistic about their Account Executives, but Mr. 

 

7

 Because Mr. Foreman’s summary judgment response does not follow the Court’s format 

for presentation of such issues, it is not necessarily clear what “difficulties with his territories” 

Mr. Foreman refers to. He does make a generalized complaint that the Defendants redrew sales 

territories on several occasions in 2008 and 2009, depriving him of access to some loyal 

customers. However, the same evidence he cites to in support of this assertion – Ms. Hooper’s 

testimony – also establishes that “all of [the Account Executives]” complained about the 

redrawing of territories. This leads to the conclusion that all of their sales figures reflected that 

disruption, and thus, Mr. Foreman’s performance relative to his fellow Account Executives 

necessarily takes that disruption into account. 

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Cole’s situation indicates that such unfair or unrealistic treatment was not motivated by the 

Account Executives’ race. 

 Finally, Mr. Foreman points to the performance of David Eanes and Stephanie Wood. 

Although both produced less revenue than Mr. Foreman during many of the months of 2009, the 

Defendants point out that both of these individuals were newly-hired into the Account Executive 

position in early 2009.8

 Thus, the Defendants argue, they are true comparators to Mr. Foreman, 

who had several years of sales experience. Once again, the Court treats this as a contention that 

Mr. Eanes and Ms. Wood were not subject to the same performance expectations as he was, and 

Mr. Foreman cites to no evidence to the contrary. Thus, the Court cannot say that Mr. Foreman 

has come forward with evidence creating a genuine issue of fact as to whether similarly-situated 

white Account Executives received more favorable treatment than he did. 

 Without the ability to turn to similarly-situated comparators, Mr. Foreman’s other 

attempts to show pretext are ineffective. He complains generally of poor management decisions, 

such as the redrawing of territories that cut him off from loyal customers, or “favoritism” shown 

by the assigning of certain lucrative customers to certain Account Executives, but as noted 

above, the record reflects that such decisions disadvantaged both Mr. Foreman and other white 

Account Executives equally. Moreover, as note above, poor management decisions on the part 

of the Defendants are not indicia of pretext unless they are so unreasonable that the factfinder 

 

8

 Nevertheless, the record reflects that, despite starting in March 2009, Ms. Wood began 

eclipsing Mr. Foreman’s revenue figures by June 2009, and continued to roughly match, if not 

exceed, Mr. Foreman’s monthly revenue totals thereafter. 

 Moreover, Mr. Foreman concedes that Mr. Eanes, although never reaching Mr. 

Foreman’s revenue levels, “show[ed] steady increases” in revenue generation throughout the 

time period. 

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could not conclude that the Defendants made those decisions in good faith. That is certainly not 

the case on the record presented here. 

 Mr. Foreman is thus left with Mr. Zanger’s offensive comments as the only colorable 

evidence of pretext. There is some dispute between the parties as to the extent to which various 

individuals were involved in the decision to terminate Mr. Foreman. The Defendants point to the 

testimony of Marc Haney, one of New Century’s principals, who stated that “the whole group” – 

meaning the “sales committee,” composed of himself, Len Haney, Rich Luhrs, and Ms. Hooper – 

“was involved” in making the decision to terminate. Mr. Haney testified that he could not recall 

whether Mr. Zanger was present when the decision was made, but that Mr. Zanger (and Angela 

Haney) was “sometimes” a member of the sales committee, depending on his physical location 

and the time of the meeting. Mr. Haney’s testimony seems to suggest that a recommendation to 

terminate Mr. Foreman was presented to the sales committee for discussion, and Mr. Foreman 

points to an interrogatory response from the Defendants that appears to indicate that the initial 

recommendation was made to the committee by Ms. Hooper. 

 Mr. Foreman disputes that the decision was made by a “sales committee,” relying largely 

on the deposition testimony of Len Haney. Len Haney was asked about “a sales group, or a sales 

committee that met regularly at [the Defendants] in 2008 and 2009,” and he responded that 

“there were sales meetings, but – all the salesmen and the managers once a week – but there was 

no committee. If there was, . . . I didn’t know about it.” Len Haney clearly testified that he was 

not involved in the decision to terminate Mr. Foreman, but he also stated that he did not know 

who actually made that decision. Mr. Foreman also disputes that Ms. Hooper initiated the 

recommendation that he be terminated, pointing to Ms. Hooper’s deposition in which she denied 

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that she “recommend[ed] people for being terminated.” Ms. Hooper testified that the decision to 

terminate Mr. Foreman was made by “senior management,” which she identified as Mr. Luhrs, 

Mr. Zanger, Len Haney, and Marc Haney. She testified that “Len and Marc [and herself] were 

having a hard time with” the decision, because of their positive personal relationship with Mr. 

Foreman. Taken in the light most favorable to Mr. Foreman, this testimony suggests both that 

Mr. Zanger was indeed involved in the decision to terminate, and that he and Mr. Luhr were the 

primary individuals advocating for Mr. Foreman’s termination. 

 Assuming that Mr. Zanger was part of the decision to terminate Mr. Foreman, if not one 

of the principal forces behind that decision, the question then becomes whether Mr. Zanger’s 

past use of racial epithets is sufficient to raise a genuine issue of fact as to whether the decision 

to terminate Mr. Foreman for performance reasons was a pretext for racial discrimination. 

Taking, as the Court must, all of the evidence in the light most favorable to Mr. Foreman, the 

Court finds sufficient evidence of pretext to permit Mr. Foreman’s race discrimination claim to 

proceed to trial. Assuming the jury credits the testimony of Mr. Cole and Mr. Reed – that Mr. 

Zanger twice used the offensive and highly-charged racial epithet “nigger” to refer to black 

people (and to Mr. Foreman in particular), the jury could very well conclude that Mr. Zanger 

harbored some degree of racial animus towards black people. The record adequately reflects that 

Mr. Zanger was directly involved in the decision to place Mr. Foreman on the PIP, and, as noted 

above, was apparently one of the prime movers in the decision to seek his termination. 

 Although Len and Marc Haney both ultimately concurred in the decision, and Mr. 

Foreman has come forward with no evidence to impute discriminatory animus to them, the law 

recognizes that in certain situations, discrimination can be found where a biased individual 

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“influences [an] unbiased decision-maker” into taking a particular action.9

 Chattman v. Toho 

Tenax America, Inc., 686 F.3d 339, 352-53 (6th Cir. 2012). Here, the jury might reasonably 

conclude that Mr. Zanger indulged a racial bias against Mr. Foreman, targeted him for 

termination, and influenced other management staff at the Defendant to concur in that 

termination when they might not have otherwise done so. Admittedly, this scenario comes about 

only when Mr. Foreman’s evidence is stretched to its maximum persuasive effect; in reality, Mr. 

Foreman’s claim is relatively weak, and it is entirely possible that the evidence that actually 

produced at trial differs sufficiently from that presented here to warrant a mid-trial judgment in 

favor of the Defendants on this claim pursuant to Fed. R. Civ. P. 50. Nevertheless, the Court 

finds it appropriate to deny the Defendants’ request for summary judgment on Mr. Foreman’s 

race discrimination claim challenging his termination. 

 3. After-acquired evidence 

 Because Mr. Foreman’s race discrimination claim is proceeding to trial, the Court must 

address an additional issue raised by the parties. Discovery in this matter revealed that, while 

working for the Defendants, Mr. Foreman was simultaneously working for two of the 

Defendants’ competitors: KCP Logistics and Professional Brokers Transportation. Mr. Foreman 

never told the Defendants of this arrangement. Marc Haney testified that such a situation would 

result in the employee’s termination, and Mr. Foreman himself acknowledged that he would 

 

9

 Sometimes referred to as the “cat’s paw” theory of culpability, this sort of “transferred 

animus” has been recognized by the Supreme Court. See Staub v. Proctor Hosp., 131 S.Ct. 

1186, 1194 (2011) (“We therefore hold that if a supervisor performs an act motivated by 

[prohibited] animus that is intended by the supervisor to cause an adverse employment 

action, and if that act is a proximate cause of the ultimate employment action, then the employer 

is liable”). 

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“most likely would get fired if [the Defendants] learned that he was” referring customers to 

competitors. 

 The Defendants invoke McKennon v. Nashville BannerPublishing, 513 U.S. 352, 362-63 

(1995), a case in which the Supreme Court recognized that remedies available to an unlawfullydischarged employee could be limited if discovery revealed that the employee had, unbeknownst 

to the employer, engaged in misconduct during his employment. To prevail on an affirmative 

defense of “after-acquired evidence,” the employer must “establish that the wrongdoing was of 

such severity that the employee in fact would have been terminated on those grounds alone if the 

employer had known of it at the time of the discharge.” Id. If the employer meets this burden, 

the Court may tailor any backpay remedy to fit the circumstances, potentially limiting such 

award to “the date of the unlawful discharge to the date the new information was discovered,” 

and refusing to order any front pay or reinstatement. Id. at 361-62. The Defendants seek 

“summary judgment on that defense,” without elaborating as to precisely what form that 

judgment will take. 

 Mr. Foreman’s response brief contends that “there is a genuine issue of material fact as to 

whether [he] engaged in misconduct and as to whether that conduct would have resulted in 

termination,” but the record does not support that contention. Mr. Foreman contends that Marc 

Haney testified that whether a moonlighting employee would be terminated “would have been 

evaluated on a case-by-case basis” and “would depend on whether the business competes with 

[the Defendants].” But Mr. Haney’s actual deposition testimony was unambiguous: “I wouldn’t 

even say competing. Any [work] in transportation, we would not allow that, working for us and 

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working for somebody else at the same time.” 10 Pressed on whether his answer would change “if 

it’s not in competition with Western Freightways,” Mr. Haney was firm: “I would say no.” He 

made clear that such conduct would “definitely [result in] termination,” and not some lesser 

punishment.11 Moreover, there is no dispute that Mr. Foreman did indeed collect sales 

commissions from other trucking companies while working for the Defendants. Mr. Foreman 

admits as much in his deposition, and the Defendants point to deposition testimony from 

representatives of the other companies confirming Mr. Foreman’s work on their behalf through 

November 2009. 

 Thus, it appears to the Court that the Defendants may be entitled to summary judgment in 

their favor on the merits of their affirmative defense of after-acquired evidence. However, 

because the crux of the defense requires an equitable assessment of the circumstances to 

determine the extent to which any recovery by Mr. Foreman should be limited, the Court 

declines to formally grant such judgment at this time. The matter may be raised by the 

Defendants if and when a jury returns a verdict in Mr. Foreman’s favor. 

C. Retaliation claims

 Finally, the Court turns to Mr. Foreman’s contention that the Defendants retaliated 

against him for engaging in protected activity. These claims are asserted under both Title VII 

 

10 Mr. Haney conceded that “if a truck driver works for Home Depot on the weekends, then 

we would understand that. But sales cannot work for any other company while working [for the 

Defendants].” 

11 Mr. Foreman points to evidence that an Account Executive, Carl Morgan, resigned from 

his job with the Defendants and then informed the management that he had been steering 

customers to other companies. Len Haney testified that “it was one of the reasons that we . . . 

accepted his resignation, because he did work for another company while he was working for 

Western, without our knowledge.” 

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and § 1981, although the claims “overlap” and are analyzed similarly. See CBOCS West, Inc. v. 

Humphries, 553 U.S. 442, 455 (2008). 

 To establish a claim of retaliation, Mr. Foreman must first demonstrate a prima facie

case, showing: (i) that he engaged in protected activity; (ii) that he suffered an adverse 

employment action; and (iii) that there is some causal link between the protected conduct and the 

adverse action. If he carries that burden, the Defendants are obligated to articulate a legitimate, 

non-retaliatory reason for the adverse action, and Mr. Foreman bears the ultimate burden of 

demonstrating that the Defendants’ proffered explanation is a pretext for retaliation. Conroy v. 

Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013); Robert v. Board of County Commissioners, 691 

F.3d 1211, 1219 (10th Cir. 2012). 

 It is undisputed that Mr. Foreman engaged in protected activity in February 2009, lodging 

a complaint with the Defendants’ Human Resources Department about the January 30, 2009. It 

is further undisputed that he engaged in a second instance of protected activity on July 14, 2009, 

filing a charge with the EEOC. 

 The Court then turns to the question of what adverse actions Mr. Foreman suffered. 

Although, as discussed above, an employment action must be sufficiently tangible to be 

considered “adverse” for purposes of a disparate treatment claim, the Supreme Court has held 

that a more relaxed definition applies to retaliation claims. For retaliation purposes, an adverse 

action is one which “might well have dissuaded a reasonable worker from making or supporting 

a charge of discrimination.” Burlington Northern & Santa Fe RR Co. v. White, 548 U.S. 53, 67-

68 (2006). Although the action need not affect a change in the terms or conditions of 

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employment, it must nevertheless rise above the types of “petty slights, minor annoyances, and 

simple lack of good manners” that are common to many workplaces. Id. at 63, 68. 

 Here, there are two actions that occurred sufficiently close in time to Mr. Foreman’s 

protected acts that examination is warranted. First, the Court observes that his placement on the 

PIP in March 2009 followed closely after his February 2009 complaint to Human Resources. 

Second, the second extension of his PIP occurred in August 2009, a few weeks after he filed his 

EEOC charge. The Court does not, however, consider further Mr. Foreman’s termination. 

Although undoubtedly an adverse employment action, it is far too remote in time to permit an 

inference that the termination was caused by his EEOC charge some four months earlier. In 

Conroy, the 10th Circuit explained that temporal proximity between the protected act and the 

adverse action may itself be sufficient to permit a causal inference, but only if the protected 

conduct was followed very closely in time by the adverse action; a delay of up to one-and-a-half 

months is sufficient to permit an inference, but a delay of more than three months is not. 707 

F.3d at 1181. Because Mr. Foreman’s termination occurred more than three months after his 

protected act of filing the EEOC charge, he must come forward with additional evidence that 

would demonstrate a causal link between the two events. Id. He has not done so.12 

 Thus, the Court turns first to the March 2009 imposition of a PIP. The Court cannot say, 

under the circumstances presented here, that placing Mr. Foreman on a PIP was the type of 

action that would discourage a reasonable employee from engaging in protected conduct. The 

 

12 Mr. Foreman references only the fact that Mr. Zanger was the decision maker with regard 

to his termination, but does not explain how Mr. Zanger’s alleged racial animus somehow 

correlates to an alleged retaliatory animus. He also makes a vague reference to “the sequence of 

events leading to discharge” as suggesting causation, but the Court finds nothing so unusual in 

the sequence of events that an inference of causation may arise. 

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record reflects that Mr. Foreman had already been warned in July 2008 of his declining revenue 

numbers and the need to correct his behavior. The March 2009 PIP was nothing more than a 

slightly more formalized repetition that July 2008 warning, along with specific instructions on 

how to correct the problem. The record does not reflect that the PIP imposed any new 

requirements or restrictions on Mr. Foreman; he contends that the PIP did not set forth any 

specific revenue targets that he was required to achieve, other than a simple directive to generate 

more revenue (just as the July 2008 warning directed him to do), and that he was already making 

the 140 calls per month required by the PIP. Nor does the PIP place him at any greater risk of 

termination than he already faced as a result of the revenue deficiencies he had been advised of 

nearly a year earlier. Indeed, if anything, the record reflects that employees might prefer to be 

placed on a PIP – and thus given notice of a performance defect and an opportunity to correct it -

- than to simply be terminated without prior notice for unsatisfactory performance. In this 

respect, Mr. Cole’s affidavit is significant: he complains that “I was terminated [for] not meeting 

my sales goals, but I was never given any prior write-ups pertaining to sales goals [and] was 

never placed on a performance improvement plan.” Accordingly, the Court cannot conclude, on 

this record, that the March 2009 PIP was an adverse employment action for retaliation 

purposes.13

 Even assuming, however, that the March 2009 placement of Mr. Foreman on a PIP was 

an adverse action for retaliation purposes, Mr. Foreman has not come forward with any evidence 

to show that the imposition of a PIP was a pretext for retaliation. The Defendants’ stated reason 

 

13 The Court notes, without necessarily ascribing it any significance, that placement of Mr. 

Foreman on a PIP in March 2009 certainly did not dissuade him from continuing to engage in 

protected activity by filing the EEOC charge in July 2009. 

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for imposing the PIP was that Mr. Foreman’s revenue figures had not materially increased since 

the July 2008 warning notice. That notice informs Mr. Foreman that his January 2008 revenue 

was $8,800 per day, that his February 2008 revenue was “your highest to date,” and that since 

April, his revenue had steadily decreased. It noted that “you are currently at $6,871 dollars a day 

as of July 17, 2008” and advises him that “I need to see an increase in your revenue.” It does not 

appear that the record discloses Mr. Foreman’s revenue figures for the remainder of 2008, but in 

the first three months of 2009, before the PIP was imposed, Mr. Foreman’s total daily revenue 

figures were $ 5,116 (January), $ 4,277 (February), and $ 5,362 (March), all of which are 

significantly below the July 2008 figure of $ 6,871 that the Defendants considered 

unsatisfactory. Thus, the record supports the Defendants’ stated justification for placing Mr. 

Foreman on the PIP in March 2009. 

 Mr. Foreman has not come forward with any evidence to suggest that the complaints 

about his revenue generation are false, much less that they are a pretext for retaliation. The July 

2008 warning about poor revenue predates any protected activity by Mr. Foreman, and it is 

undisputed that Mr. Foreman’s revenue generation immediately prior to the imposition of the PIP 

had fallen even further. Thus, Mr. Foreman has not come forward with evidence to indicate that 

the Defendants’ stated reason for placing him in the PIP – poor revenue generation – is false, and 

thus, cannot carry his burden of demonstrating that this reason is a pretext for retaliation. See 

e.g. EEOC v. C.R. England, Inc., 644 F.3d 1028, 1052 (10th Cir. 2011) (“mere conjecture that the 

employer’s explanation is pretext is insufficient to defeat summary judgment”). 

 The Court then considers the remaining alleged retaliatory act: the August 2009 second 

extension of the PIP, coming several weeks after Mr. Foreman’s EEOC charge. For the same 

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reasons stated above, the Court cannot conclude that the extension of the PIP is an adverse 

employment action, particularly if the initial imposition of the PIP itself is insufficiently adverse. 

Even assuming that it was, the record reflects that the Defendants had previously extended Mr. 

Foreman’s PIP once already in June 2009, prior to him having filed an EEOC charge. If the June 

extension of the PIP cannot constitute retaliation (and nothing in the record would permit an 

inference that it could, given that it is too remote in time from Mr. Foreman’s February 

complaint), it is impossible to conclude that the Defendants’ performing the identical act again 

several weeks later was somehow retaliatory. Mr. Foreman’s revenue figures had increased very 

slightly immediately prior to the August 2009 extension (rising from $5,275 per day in the month 

of June to $5,735 per day in the month of July), but remained well below even the $ 6,871 that 

the Defendants considered unacceptable back in July 2008. 

 Accordingly, the Court finds that the Defendants are entitled to summary judgment on 

Mr. Foreman’s retaliation claim in its entirety. 

CONCLUSION

 For the foregoing reasons, the Defendants’ Motion for Summary Judgment (# 51, 52) is 

is GRANTED IN PART, insofar as the Defendants are entitled to judgment on Mr. Foreman’s 

claims of hostile environment harassment based on race and his retaliation claims, and DENIED 

IN PART, insofar as his race discrimination claim premised upon his termination is sufficient to 

 

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proceed to trial. The parties shall commence preparation of a Proposed Pretrial Order and shall 

jointly contact chambers to schedule a Final Pretrial Conference. 

 Dated this 1st day of August, 2013. 

BY THE COURT: 

 

 Marcia S. Krieger 

 Chief United States District Judge 

 

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