Hickles v. FedEx Ground Package System, Inc. et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVE HICKLES,
Plaintiff,
v. 	Case No. 24-2252-JWB
FEDEX CORPORATION, 1
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion for summary judgment (Doc. 57);
Plaintiff’s motion for spoliation sanctions (Doc. 59); and Plaintiff’s motion to strike or, in the
alternative, for leave to file a limited surreply (Doc. 72). The motions are fully briefed and ripe
for decision. (Docs. 57–61, 67, 70–71, and 73–74.) For the reasons stated herein, Defendant’s
motion for summary judgment is GRANTED; Plaintiff’s motion for spoliation sanctions is
DENIED; and Plaintiff’s motion to strike or, in the alternative, for leave to file a limited surreply
is DENIED.
I. 	Facts
The facts set forth herein are material to the issues on summary judgment and are either
uncontroverted or viewed in a light most favorable to Plaintiff as the nonmoving party.
According to his description of himself in the pretrial order, Steve Hickles (“Plaintiff” or
“Hickles”) “is over the age of 40, is black, and has Multiple Sclerosis.” (Doc. 53 at 2.) Plaintiff
1 As explained in Magistrate Judge Mitchell’s order (Doc. 52), effective June 1, 2024, FedEx Ground Package System,
Inc. was subsumed by merger with Federal Express Corporation. During the pretrial conference, the parties stipulated
that FedEx Corporation is now the only properly named defendant for purposes of liability in the current matter. The
clerk is directed to terminate FedEx Ground Package System, Inc. as a defendant.
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began his employment with FedEx Corporation (“Defendant” or “FedEx”) in 1998 as an operations
manager at the FedEx facility in Lenexa, Kansas (“Lenexa Hub”). (Id. at 14:2-5.) Plaintiff was
promoted to sort manager at the Lenexa Hub approximately six months into his employment. (Id.
at 14:6-9.) In 2000, Plaintiff was transferred to the FedEx facility in Salina, Kansas (“Salina Hub”)
and was promoted to senior manager. (Id. at 14:10-20.)
In 2005, Plaintiff returned to the Lenexa Hub and shortly thereafter was promoted to the
position of assistant senior manager, which he deemed a “lateral move” because of the relative
size difference between the Lenexa Hub and the Salina Hub. 	(Id. at 14:20-15:3.) 	In that role,
along with other duties, Plaintiff trained other hub managers in surrounding FedEx facilities. (Doc.
58 at 18.) Specifically, starting in 2019, Plaintiff was sent to the Dallas Hub every other week for
months to help the facility get back on track in terms of meeting performance quotas. (Id.) During
this time when training other hub managers, Plaintiff remained in the position of assistant hub
manager at the Lenexa Hub.
From 2005 through the end of his employment with FedEx in September 2024, Plaintiff
reported directly to Lenexa Hub Senior Manager Jeff Cairns. 	(Plaintiff’s Depo., Doc. 58-2 at
41:18-42:3.) 	During Plaintiff’s employment with FedEx, the management hierarchy was as
follows: Plaintiff reported to Senior Manager Cairns; Cairns reported to Territory Manager Darin
Schmanke (who was later replaced by Chris Stevenson); and Schmanke reported to District
Managing Director Dan Huesman. 	(Pretrial Order Stipulations, Doc. 53 at 2.) 	As an assistant
senior manager, Plaintiff oversaw the “Day” and twilight (“Twi”) “sorts,”2 which comprised
2 The parties refer to the different work shifts at the Lenexa Hub as “sorts” within their briefs. (See Docs. 58, 70, 71.)
This appears to be an industry term. Accordingly, this order will use the term “sorts” and “shifts” interchangeably
when referring to the different work shifts—i.e., “Day” and “Twi.”
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approximately 70% of Lenexa Hub’s daily volume. (Doc. 58 at 5–6.) At the time his employment
ended in 2024, Plaintiff earned a salary of $141,488. (Id.)
In 2003, Plaintiff was diagnosed with Multiple Sclerosis (“MS”). (Plaintiff’s Depo., Doc.
58-2 at 87:6-12.) Plaintiff’s symptoms include weakness on his left side and getting tired easily.
(Id. at 90:15-93:6.) 	Plaintiff testified that “I can literally fall asleep sitting here talking” and “I
start dragging my foot, I start getting clumsy with my hands.” (Id. at 92:13-93:6.) Plaintiff first
sought a work accommodation for this condition in August 2022, which is discussed in more detail
below. (Doc. 58 at 8.)
Between 2014 and 2022, Plaintiff applied for four senior manager positions at the Kansas
City Station (“KCMO”). (Plaintiff’s Depo., Doc. 58-2 at 27:15-29:12; Doc. 53 at 6.) These jobs
were awarded to the following individuals: in 2014 to Terry Koskovich, who is a white male; in
2018 to Andy Ash, who is a white male; in 2020 to Eric Atkinson, who is a black male; and in
2022 to Kodey Divers, who is a white male. (Doc. 53 at 2–3.) Plaintiff stated that Mr. Ash and
Mr. Koskovich are “around five years younger” than Plaintiff and that Mr. Atkinson and Mr.
Divers are “significantly younger” than Plaintiff; however, their actual ages are not in the record.
(Docs. 53 at 5; 70-14 at 1.) Plaintiff received lower interview scores than the successful candidates
chosen for all four of these positions. (Plaintiff’s Depo., Doc. 58-2 at 31:6-14; see also Docs. 58-
4 to 58-7.) Plaintiff further testified that after not receiving these promotions, various members of
district management offered him feedback and advice. (Plaintiff’s Depo., Doc. 58-2 at 37:2-40:8.)
Plaintiff met with some managers, but he declined to meet with others because he “disagreed with
[the advice given].” (Id. at 39:13-40:2.)
Plaintiff’s interview for the senior manager position in October 2022 was conducted by
Territory Manager Chris Stevenson. (See Doc. 58-7.) Plaintiff obtained a 1.85 for his interview
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score. (Id.) The other candidates and their respective scores were Kodey Divers (3.28) and Erika
Vaiaoga (2.85). (Id.) The position was ultimately awarded to Divers. (Pretrial Order Stipulations,
Doc. 53 at 3.) Huesman was district manager over this position at the time of hiring but did not
directly take part in the hiring decision. (Doc. 70 at 17.)
Following this interview, Plaintiff spoke with his supervisor, Jeff Cairns. In relation to the
2022 position that Divers received, Plaintiff testified that Cairns told him that Plaintiff was older,
on his way out, and that management was probably going to pass him over and go with a younger
person. (Plaintiff’s Depo., Doc. 58-2 at 103:5-105:11.) Cairns told Plaintiff that maybe Plaintiff—
who was approximately 57 at the time of the interviews—was too old for his job. (Id.) However,
Cairns did not participate in the interview nor was he a decisionmaker with regard to selecting who
was to be promoted for the 2022 position and Plaintiff admits that he believed Cairns was “half
joking, half serious.” (Id. at 103:22-23)
On August 4, 2022, shortly before Plaintiff interviewed for the 2022 senior manager
position at KCMO, he asked FedEx for an accommodation for his MS that would allow him to
leave work at 10:00 p.m. on nights when he was having a “flare-up” or was tired. (Id. at 90:15-
92:3; see also Doc. 58-20.) Plaintiff testified that FedEx human resources (“HR”) personnel met
with him—specifically, Teri Walsh-Prondzinski—when he wanted to discuss this, and that HR did
not give him a hard time about requesting an accommodation other than wanting certainty.
(Plaintiff’s Depo., Doc. 58-2 at 91:18-92:7, 93:7-94:4.) In other words, the original doctor’s note
to support Plaintiff’s accommodation request allowed Plaintiff to leave work whenever he had a
“flare-up” or was feeling tired. (Id.) Plaintiff told HR that he did not need to leave at 10:00 p.m.
every day, just on the days when he had flare-ups. (Id.) However, HR did not like the subjective
nature of this accommodation request because they wanted predictability for scheduling purposes
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and asked that Plaintiff obtain a more “clear-cut” answer from his doctor in terms of his work
restrictions. (Id.) Plaintiff did so, and his doctor recommended that he be allowed to leave work
every day at 10:00 p.m.—two hours before the usual end of the twilight shift. (Id.) As part of the
interactive process instituted by FedEx in determining an accommodation that would best fit
FedEx and Plaintiff, HR decided, in direct accordance with Plaintiff’s doctor’s recommendation,
that Plaintiff would be allowed to leave at 10:00 p.m. every night. (Id. at 94:20-95:16.) FedEx’s
only stipulation, as stated on the accommodation itself, was that Plaintiff was to “maintain
communication 	and 	planning 	within 	the 	Twi 	sort 	[and] 	complete 	the 	communication
bridge/checklist before leaving by 10pm each evening.” (Doc. 58-21 at 2.) His accommodation
was formally approved on July 13, 2023. 	(Id.) 	Following the accommodation being granted,
Cairns expressed reservations and concerns about Plaintiff’s accommodation, because the 10:00
p.m. to midnight time period was often the busiest of the sort. (Cairns Depo., Doc. 70-6 at 28.)
According to Cairns, his reservations were confirmed as Plaintiff’s performance lowered during
his June 1, 2022-March 31, 2023, review period, which was the first review to include time when
Plaintiff was working with his accommodation. (Id. at 33–36; Doc. 70 at 4.)
Shortly before Plaintiff’s accommodation request was approved, but after Plaintiff had first
requested an accommodation, Plaintiff filed his charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on May 15, 2023. (Doc. 58-8.) The charge of
discrimination primarily alleged discrimination due to Plaintiff being passed over for promotion
on multiple occasions. (Id.)
After receiving his accommodation, Plaintiff believed it was not fair to still be held
accountable for the period of his sort from 10:00 p.m. until midnight, in accordance with the
approved accommodation, because he was not there and therefore “had no control” over the shift.
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(Plaintiff’s Depo., Doc. 58-2 at 95:16-96:1, 189:13-191:11.) However, Plaintiff admits to taking
steps such as printing sheets, going over volume, and other pre-planning measures prior to leaving
at 10:00 p.m. in order to prepare those on the shift for his scheduled absence. 	(Doc. 70 at 10.)
Plaintiff’s preparation is further established based on the testimony of a sort manager working
directly subordinate to Plaintiff. 	Specifically, Hassina Takilt stated that there was never a time
where someone “ha[d] no idea what’s going on” during the twilight shift after 10:00 p.m., because
Plaintiff always communicated the “plan and g[ave] his sort managers what [was needed] for them
to do the sort.” (Doc. 70-4 at 19–21.)
Not long after his accommodation request had been approved, Plaintiff took Family and
Medical Leave Act (“FMLA”) medical leave for the full twelve weeks3 from September 14, 2023,
to December 10, 2023, for a heart procedure. (Id. at 40:15-41:2; Doc. 53 at 3.) Plaintiff had no
difficulty with FedEx management regarding this request for medical leave. 	(Plaintiff’s Depo.,
Doc. 58-2 at 41:6-15.)
Later, Plaintiff “think[s]” he told Cairns that he was filing a lawsuit against Defendant
based on his failure to be promoted. (Id. at 179:18-180:2.) After this discussion, Cairns started
treating him differently, notably by taking away Plaintiff’s ability to hire his own sort managers.
(Id.) Previously, Plaintiff was always able to hire his own sort managers and Doug Goodwin, the
other assistant hub manager at the Lenexa Hub, was still allowed to hire his sort managers after
this authority was taken away from Plaintiff. 	(Id. at 47:10-49:3.) 	Cairns admitted that he was
subjecting Plaintiff to more scrutiny around this time but stated that it coincided with Plaintiff
being placed on a Performance Improvement Plan (“PIP”) and that subjecting employees to
increased scrutiny while on a PIP was common practice. (Cairns’ Depo., Doc. 70-6 at 15–16.)
3 Under the FMLA, eligible employees are entitled to take twelve weeks of leave per year. See 29 U.S.C. § 2612(a)(1).
Here, the parties have stipulated that Plaintiff would be considered an eligible employee under the law.
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In the first week of May 2024, Cairns notified Plaintiff that he was going to be formally
placed on a PIP (which actually occurred in July). (Docs. 53 at 3; 58-3.) The PIP indicated that
Plaintiff was placed on the plan because both the day and twilight shift for which he was
responsible had “failed multiple times” in areas such as productivity, completion rates, and
package handling standards, and Plaintiff had failed to conduct certain meetings and otherwise
take steps that could have ensured the shift’s smooth running when he left at 10:00 p.m. (Doc. 58-
3 at 3.) When Plaintiff learned that he was being placed on a PIP, Plaintiff submitted an internal
complaint of retaliation to HR because he felt he was not being held to the same standard by Cairns
as compared to his peer: Assistant Manager Doug Goodwin. (Doc. 58-16 at 2–3.) Specifically,
Plaintiff questioned why he was being placed on a PIP for not hitting productivity numbers while
Goodwin was not hitting productivity numbers and was not placed on a PIP. (Id. at 3.) Cairns
admitted that Goodwin was not hitting certain productivity numbers but stated that Goodwin was
not placed on a PIP because, unlike Plaintiff, he was at least working on the issues. (Cairns Depo.,
Doc. 70-6 at 44–45.) 	During the ensuing investigation into Plaintiff’s internal complaint, the
investigating official concluded that Plaintiff’s claims of retaliation were “[u]nsubstantiated”
because Cairns’ difference in treatment between Plaintiff and Goodwin was based on their job
performance and that Goodwin lacked any negative performance or conduct documentation. (Doc.
58-16 at 11–12.)
On July 8, 2024, Plaintiff was formally placed on a PIP due to deficiency in his
performance metrics, which ended on September 5, 2024 (a duration of 60 days). (Doc. 53 at 3;
see Doc. 58-3.) 	The PIP identified specific performance goals that Plaintiff needed to meet,
including productivity targets, on-time completion rates, package handling standards, and safety
meetings, among others. 	(Doc. 58-3.) 	The PIP also required weekly updates from Plaintiff,
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generally in the form of PowerPoints, to assist Cairns in tracking Plaintiff’s progress to ensure he
met these metrics. (Id.) Territory Manager Chris Stevenson, to whom Cairns reported, testified
that he informed Plaintiff that he could be terminated if he did not satisfactorily accomplish the
performance metrics laid out in the PIP. (Doc. 70-11 at 14.)
Ultimately, Plaintiff did not meet some of the performance metrics outlined in the PIP.
(Doc. 58-3.) Plaintiff does not dispute the accuracy or legitimacy of the numerical data or metrics
stored on the FedEx “dashboard” which was the platform used to measure and track these
performance metrics while Plaintiff was on a PIP. 	(Plaintiff’s Depo., Doc 58-2 at 78:2–79:4.)
However, Plaintiff appears to dispute how some of these metrics were calculated. 	Specifically,
Plaintiff alleges that the performance metrics were calculated as individual numbers as opposed to
combining all the metrics and getting an average, and that “[Plaintiff] hit the numbers when
combined” but not individually. (Id.; see Doc. 70 at 1.)4
On June 13, 2024, Plaintiff filed the instant lawsuit. 	(Doc. 1.) 	On August 19, 2024,
Plaintiff filed an amended charge of discrimination with the EEOC. (Doc. 58-9.) On September
27, 2024, Plaintiff filed a second amended charge of discrimination with the EEOC. (Doc. 58-10.)
At the end of Plaintiff’s PIP in September of 2024, FedEx terminated his employment.
(Doc. 53 at 5.) Cairns made the decision to fire Plaintiff because after the PIP had ended, there
were still areas in which Plaintiff had not reached the performance metric thresholds identified in
the PIP and Cairns believed Plaintiff was not exhibiting behavior indicative of someone seeking
to improve his work performance. 	(Cairns Depo., Doc. 70-6 at 14.) 	Territory Manager Chris
4 Plaintiff has not clearly identified what numbers should have been combined. In reviewing the PIP (Doc. 58-3) it is
not clear to the court what, if any, numbers should have been combined. However, even if a single metric, among
many, should have been combined and was not, Plaintiff appears to have still fallen short of multiple predetermined
performance metrics identified in the PIP. Therefore, Plaintiff controverting this fact has no impact on the court’s
decision.
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Stevenson stated the decision to terminate Plaintiff was within Cairns’ discretion. (Doc. 70-11 at
14.)
On November 15, 2024, Plaintiff filed his first amended complaint in the instant lawsuit
alleging claims of race discrimination (“Count I”) and retaliation (“Count II”) in violation of Title
VII; disability discrimination and denial of reasonable accommodations (“Count III”) and
retaliation (“Count IV”) in violation of the ADA; age discrimination (“Count V”) and retaliation
(“Count VI”) in violation of the ADEA; interference in violation of the FMLA (“Count VII”); and
discrimination (“Count VIII”) and retaliation (“Count IX”) in violation of § 1981. (Doc. 53 at 9–
11.) On August 12, 2025, Defendant moved for summary judgment on all claims. (Doc. 57.)
II. 	Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
48 (1986). “A fact is material if, under the governing law, it could have an effect on the outcome
of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the
nonmoving party on the evidence presented.” Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th
Cir. 2020). Conclusory allegations are not sufficient to create a dispute as to an issue of material
fact. See Hall v. Bellmon, 935 F.2d 935 F.2d 1106, 1110 (10th Cir. 1991). The court views the
evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
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In considering a motion for summary judgment, the facts set forth in the motion must refer
“with particularity to those portions of the record upon which” the moving party relies. D. Kan.
R. 56.1(a). “All material facts set forth in the statement of the movant will be deemed admitted
for the purpose of summary judgment unless specifically controverted by the statement of the
opposing party.” Id. To properly dispute a proposed statement of material fact, the opposing party
must “refer with particularity to those portions of the record upon which the opposing party relies.”
D. Kan. R. 56.1(b)(1). Failure to properly controvert a proposed fact that is properly supported
will result in a determination that the fact is admitted. 	Coleman v. Blue Cross Blue Shield of
Kansas, Inc., 287 F. App’x 631, 635 (10th Cir. 2008) (finding that the “district court was correct
to admit all facts asserted in [the movants] summary judgment motion that are not controverted by
a readily identifiable portion of the record.”) (internal quotation and citation omitted).
III. 	Analysis
A. Plaintiff’s Motion to Strike or File Surreply
Plaintiff seeks to strike Defendant’s reply brief (Doc. 71) or, in the alternative, file a
surreply. 	(Doc. 72.) 	This motion has been fully briefed (Doc. 73, 74) and is denied for the
following reasons.
Surreplies are not typically permitted and are only allowed in rare circumstances, including
where the movant raises a new argument in a reply brief. See Dodson Int’l Parts, Inc. v. Williams
Int’l Co., LLC, 2020 WL 4904049, at *1 (D. Kan. Aug. 20, 2020), aff’d, 12 F.4th 1212 (10th Cir.
2021). Plaintiff contends that leave should be granted because Defendant has “accused Plaintiff
(and, by extension, counsel for Plaintiff)” of lying to this court, by pointing out instances where
the Defendant, in its response (Doc. 71) accuses Plaintiff of making “a gross misrepresentation”
or “categorically false statements of fact” to this court. 	(Doc. 72.) 	Notably, “Plaintiff
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acknowledges that Defendant’s Reply does not include any ‘new material.’” (Id.) Accordingly,
the reasons stated by Plaintiff are not sufficient for the court to permit a surreply. 	Therefore,
Plaintiff’s motion to strike and motion for leave to file a surreply are denied.5
B. Spoliation Sanctions
Plaintiff seeks sanctions against Defendant for spoliation of evidence. 	(Doc. 59.) 	The
motion has been fully briefed (Docs. 60, 61, 67) and is denied for the following reasons.
Defendant had a policy that all hub managers were issued work phones and laptops to use
as part of their jobs. (Doc. 70-3 at 14–15.) Plaintiff was terminated on September 11, 2024, and
when this occurred, he turned over his phone and laptop to Cairns per Defendant’s policy. (Doc.
59 at 1.) According to Plaintiff, the phone contained extensive conversations between himself and
Cairns. 	(Id.) 	Because Plaintiff’s phone had a litigation hold, it was shipped to Coraopolis,
Pennsylvania, and then purportedly was to be forwarded to Defendant’s IT asset disposal
department in Memphis, Tennessee. (Docs. 61 at 2; 61-3 at 3.)6 However, Plaintiff’s phone never
made it to Memphis. (Doc. 61 at 3.) To date, Defendant has been unable to locate the phone and
has no records of shipping it to Memphis. (Doc. 61-3 at 3.) This problem is compounded because
Cairns failed to retain all but a short series of text messages between himself and Plaintiff. (Doc.
61-5 at 2–3; see also Doc. 61-8.) Cairns admits to deleting not only his text messages with Plaintiff
5 The court notes that its decision on Defendant’s summary judgment motion (Doc. 57) would not be changed even if
the court considered the proposed surreply (Doc. 72-1). Further, the court recognizes Plaintiff’s counsel’s concern
regarding Defendant’s choice of words—i.e., Defendant accuses Plaintiff of making “a gross misrepresentation” and
“categorically false statements of fact” to this court—suggests that Plaintiff’s counsel violated her ethical obligations
of candor to the court under KRPC 3.3(a) and Fed R. Civ. P. 11(b)). However, under the circumstances the court does
not view these statements by Defendant to imply any breach of ethical duty to the court.
6 Defendant has provided an affidavit of Randy Rogers, a FedEx IT Manager in Coraopolis, PA. (Doc. 61-3.) Rogers
testified that their procedure is to immediately ship cell phones to Memphis, Tennessee, as they purportedly did with
Plaintiff’s phone and that they do not have records because “[Rogers’] team only retains records for devices they are
responsible for supporting and processing.” (Id. at 3.)
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but all of his text messages because he “do[es]n’t keep text messages” and “do[es]n’t like clutter.”
(Doc. 61-5 at 2–3.)
As to the deleted text messages, Plaintiff asserts that they contained relevant evidence and
that Defendant’s agent, Cairns, deleted them despite knowing of pending litigation. (Docs. 60 at
1–2; 67 at 1.) Plaintiff points to Cairns’ admission that he knew Plaintiff had filed an EEOC charge
when he deleted his text messages because Plaintiff had told him. 	(Docs. 67 at 2; 61-5 at 2.)
However, Defendant contends this was not the reason for Cairns deleting his text messages, and
rather, it is something he has always done to avoid clutter because of the high number of work
messages he receives. (Doc. 67 at 2.) Plaintiff asserts that this admission by Cairns establishes
the elements needed to prove spoliation. 	Further, Plaintiff asserts unreasonableness on
Defendant’s part because it failed to take proper steps to preserve the ESI. (Doc. 67 at 3.)
Specifically, Plaintiff points to Cairns’ admission that he was never informed “not to delete the
text messages he receives every day from the Plaintiff.” (Doc. 67 at 3 (citing Cairns’ Depo., Doc.
61-5 at 2).) As to the loss of Plaintiff’s work phone, Plaintiff asserts that Defendant has failed to
maintain adequate shipping records. (Doc. 59 at 1-2; see also Doc. 61-3.)
Plaintiff argues he is prejudiced because he is unable to use the text messages to support
his claims and to prove Cairns’ version of events untruthful. (Doc. 60 at 8.) As such, Plaintiff
requests that this court find Defendant improperly destroyed evidence and grant an adverse
inference, which proports to state that:
[T]he destroyed documents would have shown that the failure of Plaintiff’s
managers after Plaintiff left for his [10:00 p.m. to midnight] accommodation was
not due to the fault of Plaintiff [, and thus] Plaintiff did not have poor planning and
preparation, ineffective communication, and insufficient training of his managers
and would have shown the opposite.
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(Id. at 2-3; Doc. 67 at 7.) 	Presumably, the inference sought by Plaintiff is that he did properly
prepare his managers to handle the twilight shift after he left at 10:00 p.m. pursuant to his approved
accommodation. 	Plaintiff requests this adverse inference be applied by this court in assessing
summary judgment. (Doc. 60 at 11.) Accordingly, the court addresses this issue before proceeding
to summary judgment analysis.
Defendant contends that Cairns’ deletion of text messages was not spoliation but rather
part of his regular habit of deleting messages to avoid clutter. (Doc. 61 at 4–6.) Regarding the
lost phone, Defendant asserts that it followed proper procedures. (Id. at 2–3, 6–7.) Ultimately,
Defendant admits they no longer have Plaintiff’s work phone in their possession nor any records
showing it was shipped from Coraopolis to Memphis. 	Nevertheless, Defendant asserts that
Plaintiff has not established that he was prejudiced and, even if Plaintiff proves the elements for
sanctions, Defendant did not act in bad faith thereby disallowing an adverse inference. (Doc. 61
at 6–7, 12.)
“Spoliation sanctions are proper when (1) a party has a duty to preserve evidence because
it knew, or should have known, that litigation was imminent, and (2) the adverse party was
prejudiced by the destruction of the evidence.” 	Equal Emp. Opportunity Comm’n v. JetStream
Ground Servs., Inc., 878 F.3d 960, 964 (10th Cir. 2017) (internal quotation marks omitted)). The
court has the authority to impose an adverse inference, a powerful sanction, “only upon finding
that the party acted with the intent to deprive another party of the [electronically stored
information’s (ESI)] use in the litigation.” Fed. R. Civ. P. 37(e); Henning v. Union Pac. RR. Co.,
530 F.3d 1206, 1219–20 (10th Cir. 2008) (“An adverse inference is a powerful sanction as it brands
one party as a bad actor and necessarily opens the door to a certain degree of speculation by the
jury, which is admonished that it may infer the presence of damaging information.”); Ad Astra
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Recovery Servs., Inc. v. Heath, 2020 WL 969762, at *7 (D. Kan. Feb. 28, 2020) (“Where a moving
party seeks an adverse-inference jury instruction, it must also prove that the responsible party acted
in bad faith.”).
Here, the parties do not contest that Defendant had a duty to preserve evidence and thus
the first element is satisfied. As to prejudice, “[s]poliation of evidence causes prejudice when, as
a result of the spoliation, the party claiming spoliation cannot present evidence essential to the
underlying claim.” CCA Recordings 2255 Litig. v. United States, 2021 WL 2212758, at *6 (D.
Kan. June 1, 2021) (internal quotations and citations omitted). 	Plaintiff claims the deleted text
messages from Cairns’ phone would have proven he properly communicated with and prepared
his managers for the portion of the twilight shift he was gone, pursuant to his accommodation. Yet
Plaintiff has provided testimony from his managers during the relevant period that stated Plaintiff
had communicated with and prepared them. (Doc. 70 at 10–12.) Specifically, Hassina Takilt, a
sort manager working under Plaintiff, stated there was never a time where someone “ha[d] no idea
what’s going on” during the twilight shift after 10:00 p.m., because Plaintiff always communicated
the “plan and g[ave] his sort managers what [was needed] for them to do the sort.” (Doc. 70-4 at
19–21.) 	While the court does not condone Cairns’ problematic deletion of text messages after
learning of the EEOC charge, Plaintiff has presented admissible evidence that shows the court
exactly what Plaintiff alleges would have been included in those text messages. Thus, the evidence
Plaintiff alleges to be on the deleted texts would be cumulative. See, e.g., Sky Jet M.G. Inc. v. VSE
Aviation Servs., LLC, 2025 WL 1664002, at *6 (D. Kan. June 12, 2025) (stating evidence that is
“cumulative of other evidence that is available . . . [is] not prejudicial”); Turner v. Pub. Serv. Co.
of Colo., 563 F.3d 1136, 1150 (10th Cir. 2009) (finding no prejudice when plaintiff had access to
discovery covering the same information likely contained in lost evidence); Burlington N. & Santa
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Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007) (finding no prejudice where lost
evidence was produced in another form).
While the court has not found Plaintiff to have sufficiently shown prejudice, even if it had,
Plaintiff’s motion seeking an adverse inference would be denied because he has not proven bad
faith as required by Rule 37(e)(2) of the Federal Rules of Civil Procedure.
“If an aggrieved party seeks an adverse inference jury instruction” as Plaintiff does here,
“that party must also prove bad faith on the part of the producing party.” Herrmann v. Rain Link,
Inc., No. 11-1123-RDR, 2013 WL 4028758, at *2 (D. Kan. Aug. 7, 2013). “‘Negligent or even
grossly negligent behavior’ does not suffice.” CCA Recordings, 2021 WL 2212758, at *6 (quoting
Fed. R. Civ. P. 37(e)(2) advisory committee’s note). 	“[I]t is [Plaintiff’s] burden to show that
[Defendant] acted in bad faith.” Ad Astra, 2020 WL 969762 at *7. Here, Plaintiff asserts bad faith
is demonstrated by Defendant’s failure to preserve the texts after being told by Plaintiff that he
had filed an EEOC complaint and because Defendant has failed to provide any shipping records
for Plaintiff’s lost work phone. (Doc. 60 at 5–6, 8–10.)
Defendant argues that there was no bad faith because the phone and laptop were promptly
mailed to FedEx’s Coraopolis, Pennsylvania, location for processing, in compliance with their
internal procedure, and that the phone was lost somewhere in transit after being sent from
Coraopolis to Memphis. (Docs. 61 at 8; 61-3 at 3.) As for Cairns’ deleted texts, Defendant argues
that it was just part of his habit based on the number of work texts he got every day. (Doc. 61 at
4–6.) Cairns even admits to knowing that Plaintiff had filed his EEOC charge before deleting the
texts. 	(Id. at 5–6.) 	Plaintiff states that because the phone was lost in transit and Cairns
compulsively deletes his texts, the only “reasonable inference” is that Defendant’s conduct was
“intentional” and “willful.” (Doc. 60.) The court disagrees. Such an argument essentially renders
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the “bad faith requirement superfluous because spoliation would always also result in a finding of
bad faith,” by assuming a guilty conscience simply because evidence no longer exists and not
distinguishing negligent from intentional acts. Ad Astra, 2020 WL 969762 at *7. Accordingly,
Plaintiff has not presented a record from which this court could find Defendant failed to preserve
the work phone in order to deprive Plaintiff of evidence rather than because Defendant was sloppy
or incompetent in carrying out routine processing procedures. 	See Estate of Trentadue ex rel.
Aguilar v. United States, 397 F.3d 840, 863 (10th Cir. 2005) (differentiating between ignorance or
incompetence and “intentional acts”).
While negligent and arguably careless, the court finds no indication under the facts
presented of intentional conduct or bad faith on Defendant’s part, or its agent, Cairns. Thus, the
court declines to sanction Defendant.
C. Statute of Limitations
At the outset, the court will first address the statute of limitations argument which is
applicable to some claims or acts. (Doc. 58 at 5.) The ADA and Title VII require a claimant to
file a discrimination charge with the EEOC within 300-calendar days from the date the alleged
discrimination occurred. 	42 U.S.C. § 12117(a); § 2000e–5; see Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 110 (2002). If a claim is not filed within this time limit, the claim—on
that specific act of discrimination—is time-barred. Davidson v. Am. Online, Inc., 337 F.3d 1179,
1183 (10th Cir. 2003).
Here, Defendant argues that to the extent Plaintiff’s claims are predicated on acts taking
place more than 300 days before Plaintiff filed his charge with the EEOC on May 15, 2023—that
is, claims predicated on acts taking place prior to July 19, 2022—those claims are barred by the
statute of limitations. (Doc. 58 at 5.) This would include: the 2001 bonus denial; Cairns becoming
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Senior Manager at Lenexa in 2005; the 2007 Wick Hollingsworth position; conversations with
Joel Blakely in 2016 and Jason Boss—two sort managers working under Plaintiff—about
Huesman’s statements; the 2014, 2018, and 2020 promotions awarded to Terry Koskovich, Andy
Ash, and Eric Atkinson, respectively; the 2016 St. Paul position awarded to Matt Leonhart; the
2017 stock option bonus; and the 2019 Dallas assignment. (Id. at 7–10, 12–14, 17.) Defendant
argues that specific acts of alleged discrimination are not actionable if time-barred even when they
are related to acts alleged in timely filed charges. (Doc. 71 at 10–11.) As such, it appears that
Defendant’s argument is that acts taking place outside the statutorily permitted timeframe cannot
be assessed by this court. That argument is overly simplistic.
In response, Plaintiff admits these prior acts occurred outside the statutory filing period
and are thus not independently actionable. (Doc. 70 at 40.) However, Plaintiff contends that these
prior acts are being introduced for a different (nonactionable) purpose: “background evidence
supporting [Plaintiff’s] timely claim.” (Id.) And Plaintiff does have a timely claim. Specifically,
Plaintiff’s failure to promote claims stem from allegations that occurred in October of 2022—
which is less than 300 days before Plaintiff filed his charge with the EEOC on May 15, 2023, and
well within the applicable limitations period. (Docs. 18 at 11; 53 at 3; 58 at 5.)
The Tenth Circuit has made clear that while time-barred acts cannot independently support
liability, they remain admissible to provide context and demonstrate a pattern of discrimination
relevant to timely claims. Sunderman v. Westar Energy, Inc., 307 F. App’x 224, 229 (10th Cir.
2009) (“Title VII does not ‘bar an employee from using . . . prior [time-barred discriminatory and
retaliatory] acts as background evidence in support of a timely claim.’”); Harris v. City of Kan.
City, Kan. Fire. Dept. et al., 2021 WL 794900, at *5 (D. Kan. Mar. 2, 2021) (“[E]mployee[s are
not barred] from using prior acts as background evidence in support of a timely claim.”). Here, it
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is clear to the court that Plaintiff intends to use these acts for that very purpose. (Doc. 70 at 40.)
First, (1) Plaintiff refers to these prior acts in his “Factual Contentions” in the Pretrial Order (Doc.
53); (2) as “Background Information” in his Amended Charge of Discrimination (Doc. 18-3); and
(3) the prior acts are not used to assert separate causes of action for retaliation or discrimination.
(Doc. 18.)
Accordingly, this court will consider the factual instances that took place prior to July 19,
2022, only to the extent they are “alleged by [P]laintiff as background evidence when considering
[P]laintiff’s claim[s].” 	Sunderman, 307 F. App’x at 229. 7 	Defendant’s motion for summary
judgment as to Plaintiff’s claims on the grounds they are barred by the statute of limitations is
denied.
D. Title VII Race Discrimination (Count I)
Plaintiff’s first claim is one of race discrimination under Title VII based on his being denied
promotion to senior manager in 2022.8 (Doc. 18 at 15, 24.) To succeed, Plaintiff “must prove that
intent to discriminate based upon [the] plaintiff’s protected class characteristics was the
determining factor for the allegedly illegal employment decision.” Ford v. Jackson Nat’l Life Ins.
Co., 45 F.4th 1202, 1213 (10th Cir. 2022). 	Plaintiff may either rely on direct evidence of
“discrimination or use the three-step burden-shifting framework” identified in McDonnell Douglas
7 While Plaintiff argues, and the court agrees, that factual instances taking place prior to July 19, 2022, are to be
considered only to the extent they are admissible background evidence, Plaintiff’s response brief appears to abandon
nearly all arguments premised on those facts. (Doc. 70.) With the exception of the 2014, 2018, and 2020 promotions
given to Terry Koskovich, Andy Ash, and Eric Atkinson, respectively, Plaintiff either fails to mention entirely or only
mentions briefly in passing all of the other factual issues allegedly having taken place prior to July 19, 2022. (Doc.
70 at 16–17, 28–30.) And it is well established that “[i]ssues not raised in the opening brief are deemed abandoned
or waived.” Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (internal quotation marks omitted); Phillips v.
Calhoun, 956 F.2d 949, 953–954 (10th Cir.1992) (a litigant who fails to press a point by supporting it with pertinent
authority or by showing why it is sound despite a lack of authority forfeits the point). With regard to the 2014, 2018,
and 2020 promotions, this background evidence will be addressed where relevant.
8 Defendant generally refers to allegations of race discrimination contained in Plaintiff’s first amended complaint
(Doc. 18) and asserts that they fail to establish a basis for a Title VII or § 1981 claim. (Doc. 58 at 18–22.) At this
stage of the proceeding, the pretrial order controls. D. Kan. R. 16.2(b). According to the pretrial order, Plaintiff’s
claim of race discrimination is based on a failure to promote under Title VII. (Doc. 53 at 9–10.)
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Corp. v. Green, 411 U.S. 792 (1973). 	Id. 	Here, Plaintiff is relying on the burden-shifting
framework of McDonnell Douglas since he lacks any direct evidence of race discrimination.
Under that framework, Plaintiff must first establish a prima facie case of discrimination.
The elements to establish a prima facie case under McDonnell Douglas “may vary depending on
the context of the claim and the nature of the alleged conduct.” Bennett v. Windstream Commc’ns,
Inc., 792 F.3d 1261, 1266 n.1 (10th Cir. 2015). The preferred framework is a two-prong prima
facie test, in which the evidence must demonstrate that: (1) Plaintiff suffered an adverse
employment action and (2) the circumstances surrounding the adverse employment action give
rise to an inference of discrimination on the basis of race. See Ford, 45 F.4th at 1215.9 One way
to satisfy this second element is to “show that the employer treated similarly situated employees
differently.” Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). The burden then
shifts 	to 	Defendant 	to 	proffer 	a 	“legitimate 	non-discriminatory 	purpose 	for 	the 	adverse
employment action.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1216–17 (10th Cir. 2013). If Defendant
meets this burden, the burden then shifts back to Plaintiff to show his race “was a determinative
factor in the [] employment decision, or show the [employer’s] explanation for its action was
merely pretext.” 	Id. at 1217. 	Plaintiff identifies failure to promote as the adverse action he
experienced. 	Plaintiff admits that his only timely failure to promote claim involves the 2022
KCMO Senior Manager position.10 (Doc. 70 at 40.) Accordingly, the court will only address that
promotion.
9 Courts often include a third element: that the plaintiff belongs to a protected class. However, that element can be
misleading. Title VII does not limit its protections to disfavored groups or classes of people. See 42 U.S.C. § 2000e-
2(a). Rather, it prohibits certain categories of discrimination, such as discrimination on the basis of sex. See id.; see,
e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (“Title VII’s prohibition of discrimination
‘because of . . . sex’ protects men as well as women.”).
10 Although Title VII jurisprudence permits the introduction of unlawful but untimely “prior acts as background
evidence in support of a timely claim,” the background evidence is relevant where “the status of a current practice is
at issue.” Morgan, 536 U.S. at 113. The pretrial order indicates that Plaintiff is not alleging a “current practice.”
Quite the opposite—Plaintiff’s theory is that he alone was singled out due to his immutable traits, his disability, and
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Here, Defendant contends that Plaintiff has failed to meet his minimal burden of
establishing a prima facie case because Defendant utilized an objective hiring procedure that
provided “race-neutral data,” and that Plaintiff was not promoted because he performed worse
and/or was less qualified in the eyes of the decisionmakers than the other applicants. (Doc. 58 at
16–22.) 	In response, Plaintiff argues he has made a prima facie case that the 2022 failure to
promote constitutes an actionable adverse employment action. 	(Doc. 70 at 28–29.) 	Plaintiff
contends he provided evidence giving rise to an inference of race discrimination based on failure
to promote based on his qualifications, namely: his lengthy performance record and reputation
amongst his subordinates. (Doc. 58 at 2–3, 12, 15.) Plaintiff also points to Kodey Divers’ (the
individual chosen for the promotion in 2022) lack of experience compared to Plaintiff. (Id. at 17.)
In reply, Defendant argues that Plaintiff has no admissible evidence that the decision of the
interviewers was motivated by race or any other prohibited classification. (Doc. 71 at 7–8.)
Plaintiff’s burden at the prima facie stage is he must show that he was rejected under
circumstances that give rise to an inference of unlawful discrimination. Plaintiff’s evidence does
not meet that standard. Plaintiff sets forth no facts to suggest that anything about the interview
process was tainted with discrimination.11 	Notably, Plaintiff does not put forth admissible
his age. Because the facts that he seeks to introduce are untimely, the “discriminatory act [that] is not made the basis
for a timely charge” becomes “merely an unfortunate event in history which has no present legal consequences.”
United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); see also Romero v. Altitude Sports & Ent., LLC, No. 21-
CV-00885-CMA-SKC, 2024 WL 989401, at *5 (D. Colo. Mar. 6, 2024). However, even if the court were to consider
these prior promotions, Defendant provides a “legitimate non-discriminatory purpose” for promoting someone other
than Plaintiff. Tabor, 703 F.3d at 1216–17.
11 Plaintiff suggests that Dan Huesman, District Managing Director for FedEx, tainted the interview process by voicing
his preference and remarking to other employees—such as Joel Blakely, Jason Boss, and Cairns—that Plaintiff ought
not ever be promoted. (Doc. 70 at 3, 15, 17, 30, 41.) The evidence regarding these statements, however, is based on
other employees’ statements to Plaintiff that Plaintiff testified about during his deposition. Defendant argues these
statements are inadmissible hearsay, and moreover, argues that even if these statements were made, they were not
premised on Plaintiff’s race. (Doc. 58 at 13, 23.) Plaintiff argues these statements are not hearsay, or alternatively,
hearsay that falls under an exception. (Doc. 70 at 41.) Plaintiff is mistaken. This is classic hearsay, as Plaintiff is
testifying to what other employees at FedEx told him about what Huesman in turn told them. Such statements are
inadmissible and not sufficient to create a genuine issue of material fact to avoid summary judgment. See Rice v. Wal-
Mart Stores, Inc., 12 F. Supp. 2d 1207, 1212 (D. Kan. 1998); Thomas v. Int’l Bus. Machines, 48 F.3d 478, 485 (10th
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evidence that the two interviewers—Territory Manager, Chris Stevenson and HR Manager,
Maureen Mahr (Doc. 58-2 at 10)—ever made a discriminatory remark. (See Docs. 18, 70.) 12
Assuming, without deciding, that Plaintiff satisfied his burden at the prima facie stage,
Defendant has offered a non-discriminatory purpose for not promoting Plaintiff. That is, he was
the lowest ranked applicant following the objective interview process—during which, each
applicant was asked uniform questions across a broad range of criterium. (Docs. 58 at 18–19; see
58-7.) 	Specifically, Plaintiff received the lowest interview score (1.85) among all three
candidates—Divers scored 3.28 and Erika Vaiaoga scored 2.85.
In response, Plaintiff contends there is substantial evidence showing pretext. (Doc. 70 at
30.) The court disagrees. Plaintiff argues that hiring decisions were not based solely on interview
scores because “the highest scoring candidate did not always get the job.” 	(Doc. 70 at 17, 30.)
Such an argument is uncompelling because, as here, the highest scoring candidate did get the job.
(Doc. 53 at 3.) 	Plaintiff also argues he was more qualified for the positions than those who
received them, and, according to Plaintiff, both Cairns and Jason Boss thought Plaintiff was ready
for promotion and deserved it. (Doc. 70 at 14, 30.) This argument is equally unpersuasive. Simply
Cir. 1995) (“[I]f [plaintiff] is testifying to what other employees told her about what [defendant’s] agents in turn told
them, then the testimony could constitute inadmissible hearsay.”). 	Moreover, Plaintiff alleges that Huesman
discriminated against another African American manager, Ron Watson. (Doc. 58 at 12.) But Watson’s own affidavit
denies this. (See Doc. 58-14.) However, the court must examine the record in the light most favorable to Plaintiff.
Thus, even assuming for purposes of summary judgment that the statements in the evidence submitted by Plaintiff are
admissible, they still fail to show how Defendant’s failure to promote Plaintiff was in any way based upon his race.
See Thomas, 48 F.3d at 485. Accordingly, the consideration of this evidence does not change the outcome on this
motion.
12 While not a model of clarity, to the extent Plaintiff seeks to support his prima facie race discrimination claim based
on materially adverse actions outlined in the pretrial order (Doc. 53 at 10), other than the failure to promote claim,
Plaintiff has abandoned those arguments for failure to respond to Defendant’s arguments addressing them in its motion
for summary judgment. See McCants v. Correct Care Sols., LLC, 2018 WL 2445157, at *5 (D. Kan. May 31, 2018)
(citing Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 768–69 (10th Cir. 2001)) (“[W]hen a party fails to respond
to arguments made to support a motion for summary judgment, the party, in effect, abandons that claim.”); Bermudez
v. City of Topeka, Kansas, 2020 WL 206766, at *8 (D. Kan. 2020) (“[Plaintiff’s] failure to respond to [Defendant’s]
arguments . . . suggests she has abandoned that claim and is grounds for summary judgment.”). 	Even if those
arguments were not abandoned for failure to respond, the court would otherwise conclude that Plaintiff has failed to
provide facts by which a reasonably jury could infer that those actions could support a prima facie claim of race
discrimination.
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because individuals not responsible for the promotion at issue believed Plaintiff should have been
promoted does not obligate Defendant to agree with those employees.
Despite this, Plaintiff urges the court to find that Defendant’s actions in promoting Divers
over Plaintiff in 2022 was discriminatory and that Defendant’s reason was pretext because Plaintiff
was more qualified. (Doc. 70 at 30.) A court’s role “is to prevent intentional discriminatory hiring
practices, not to act as a super personnel department, second guessing employers’ honestly held
(even if erroneous) business judgments.” Hamilton v. Okla. City Univ., 563 F. App’x 597, 604
(10th Cir. 2014) (internal quotations omitted). 	Courts are to proceed with caution when
considering the merits of candidates for employment. Id. at 602. A court can “draw an inference
of pretext where the facts assure us that the plaintiff is better qualified than the other candidates
for the position.” Id. In other words, pretext may only be demonstrated by “overwhelming merit
disparity.” 	Santana v. City & Cnty. of Denver, 488 F.3d 860, 865 (10th Cir. 2007) (internal
quotations omitted).
Here, Plaintiff has not made an argument rising to the level of an overwhelming disparity
between he and Divers. 	While Plaintiff points to the disparity of assistant manager experience
between Kodey Divers (five months) and Plaintiff (17 years), Plaintiff admits that Divers had
already been serving as a senior manager—a position Plaintiff did not currently hold—for two
months immediately prior to him seeking the 2022 senior manager position. (Doc. 70 at 17.) This
disparity in experience, however, was clearly considered by the interviewer, Chris Stevenson, as
he wrote on Mr. Divers’ evaluation form that his “[e]xperience [was] [l]imited.” 	(Doc. 58-7 at
10.) And even if it were not, this is an example where courts are poorly positioned to be the “‘super
personnel department,’ second guessing [Defendants’] honestly held (even if erroneous) business
judgments.” Hamilton, 563 F. App’x at 604 (citation omitted). Plaintiff has thus not shown pretext
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based on Divers’ qualifications. 	See Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1190–91
(10th Cir. 2002) (finding no pretext when plaintiff’s evaluation score ranked seventh among
applicants). To the extent Plaintiff disagrees with Defendant’s assessment of his work history, his
“subjective beliefs are not sufficient to show pretext.” Strunk v. Airxcel, Inc., 2022 WL 4447420,
at *5 (D. Kan. Sept. 23, 2022); Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.
1988) (“As courts are not free to second guess an employer’s business judgment, this assertion
[that Plaintiff was more qualified] is insufficient to permit a finding of pretext.”).
Plaintiff also argues that Defendant treated him differently from “other similarly situated
Caucasian employees” who were promoted over him. (Doc. 18 at 16.) In the context of pretext,
differential treatment is when a plaintiff “demonstrates that the employer treated [the plaintiff]
differently from other similarly-situated employees.” 	Swackhammer v. Sprint/United Mgmt. Co.,
493 F.3d 1160, 1167–68 (10th Cir. 2007). “[I]f the employer’s differential treatment of similarly-
situated employees is trivial or accidental or explained by a nondiscriminatory motive, such
treatment is insufficient to create an inference of discrimination.” Id. at 1168 (internal quotations
omitted). Plaintiff states that Defendant subjected him to “different requirements for receiving a
promotion,” but fails to articulate record evidence of what those different requirements were.
(Doc. 18 at 16.) What is undisputed is that the promotion process involved a panel ranking the
applicants and only the top performing applicant was promoted. (Doc. 58 at 18–22.) Therefore,
Plaintiff cannot show pretext through differential treatment in the 2022 promotion process. See
Diskin v. Unified Sch. Dist. No. 464, 1996 WL 717328, at *5 (D. Kan. Nov. 18, 1996) (“Plaintiff
must show more than a dispute over qualifications to prove pretext”) (internal quotations omitted).
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Therefore, Defendant’s motion for summary judgment on Plaintiff’s race discrimination
claim under Title VII (Counts I) is granted.13
E. Retaliation under Title VII, the ADA, and § 1981 (Counts II, IV, and IX) 14
Next, Plaintiff alleges that Defendant retaliated against him for engaging in protected
activity in violation of Title VII, the ADA, and § 1981. 	(Doc. 18 at 17, 19.) 	Lacking direct
evidence of retaliation, Plaintiff must similarly establish these claims under the burden-shifting
framework in McDonnell Douglas. Under that framework, Plaintiff must first establish a prima
facie case of retaliation by showing (1) that he engaged in protected opposition to discrimination,
(2) “that a reasonable employee would have found the challenged action materially adverse,” and
(3) “that a causal connection exists between the protected activity and the materially adverse
action.” Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016). After establishing his
prima facie case, the burden shifts to Defendant “to come forward with a legitimate, non-retaliatory
rationale for the adverse employment action. If the defendant does so, the plaintiff must show that
the defendant’s proffered rationale is pretextual.” Id. Here, Defendant does not dispute that the
first two elements are met. 	(Doc. 58 at 28.) 15 	However, the parties dispute what actions were
materially adverse. Because it bears on the disputed element, the court addresses which actions
Plaintiff has proven were materially adverse as that element has been interpreted by the courts.
13 To the extent Plaintiff is stating a race discrimination claim under § 1981, it too would fail for the same reasons
discussed herein.
14 The pretrial order—which controls at this stage of the proceeding (D. Kan. R. 16.2(b))—mentions nearly identical
facts in support of Plaintiff’s Title VII, ADA, and § 1981 retaliation claims. (Doc. 53 at 10–11.) Accordingly, the
court will discuss them together. See O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1258 (10th Cir. 2001) (“Both
Title VII and § 1981 support a cause of action for retaliation and require a plaintiff to establish the same prima facie
elements to recover.”); Winston v. Ross, 725 F. App’x 659, 664 (10th Cir. 2018) (applying the same elements to ADA
retaliation claim).
15 It is not entirely clear what prong of the prima face case Defendant is challenging under Count IV. However,
Defendant does state: “[T]here is no evidence . . . showing that [Plaintiff] was subjected to any adverse employment
actions because of [his MS condition].” (Doc. 58 at 31.) Based on this, the court reasonably interprets Defendant to
be challenging the causation prong. The court also finds this interpretation correct because Defendant has similarly
challenged the causation prong on Plaintiff’s retaliation claims brought under Title VII and § 1981, which both
included identical allegations in the pretrial order. (Doc. 53 at 10–11.)
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Plaintiff points to being placed on the PIP and his eventual termination as materially
adverse actions. (Doc. 70 at 31.) Defendant concedes these actions would be materially adverse.
(Doc. 58 at 28.) However, Defendant argues the remaining acts that Plaintiff complains about are
not. These actions include being required to fill out “end-of-day paperwork,” attending additional
meetings, Cairns no longer eating lunch with Plaintiff, Cairns hiring individuals to work under
Plaintiff, Cairns not including Plaintiff in some “higher-level meetings,” and HR not approving
Plaintiff’s request that his staff begin working five days as opposed to four. (Id.; Plaintiff’s Depo.,
Doc. 	58-2 	at 	179:18–180:2; 	Walsh-Prondzinski’s 	Depo., 	Doc. 	70-12 	at 	36:25–37:11.)
Specifically, Defendant points out that while these activities may have affected Plaintiff’s job
performance, they did not constitute adverse actions because every manager in the building worked
under the same conditions. (Doc. 71 at 7.) The court agrees with Defendant.
The actions pointed out by Plaintiff other than termination and placement on a PIP do not
amount to materially adverse action that could support a prima facie case. See Culp v. Remington
of Montrose Golf Club, LLC, 133 F.4th 968, 977–78 (10th Cir. 2025) (“‘[P]etty slights, minor
annoyances, and simple lack of good manners’ are not materially adverse actions.”) (quoting
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)). While Plaintiff mentions that
FedEx’s own internal policies were violated when Cairns hired individuals under him, Defendant
does not actually direct the court to such a policy. (Doc. 70 at 33.) Nevertheless, even assuming
Defendant did violate an internal polcy by disallowing Plaintiff from hiring his own staff, Plaintiff
fails to show how this act demonstrated illegal intent. See Fassbender v. Correct Care Sols., LLC,
890 F.3d 875, 889 (10th Cir. 2018) (“[The] mere fact that an employer failed to follow its own
internal procedures does not necessarily suggest that the employer was motivated by illegal
intent”). Further, to the extent that Plaintiff’s allegedly adverse actions include Defendant making
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hiring decisions, such actions fall squarely within an organizations business judgement, which a
court may rarely second guess. Hamilton, 563 F. App’x at 604 (citation omitted) (holding a court’s
role “is to prevent intentional discriminatory hiring practices, not to act as a ‘super personnel
department,’ second guessing employers’ honestly held (even if erroneous) business judgments.”).
As such, the only actionable adverse employment actions taken against Plaintiff for purposes of
establishing his prima facie case of retaliation are (1) being placed on the PIP and (2) termination.
Turning to the disputed final element, Plaintiff must show a causal connection between his
protected activity and the materially adverse action. Although a retaliatory motive may be inferred
when an adverse action closely follows protected activity, a long period of time will not suffice to
show a causal connection. See e.g., Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014) (“If the
protected conduct is closely followed by the adverse action, courts have often inferred a causal
connection.”). 	Looking closely at what courts have determined to be long versus short time
periods, the “Tenth Circuit has held that a one and one-half month period . . . may, by itself,
establish causation.” Fisher v. Basehor-Linwood Unified Sch. Dist. No. 458, 460 F. Supp. 3d 1167,
1205–06 (D. Kan. 2020), aff’d, 851 F. App’x 828 (10th Cir. 2021). Whereas a three-month period
has been found to be insufficient. Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004).
Here, Plaintiff identifies two protected activities: (1) requesting an accommodation in
August 2022 (which was formally approved on July 13, 2023) and (2) filing his EEOC charge of
discrimination on May 15, 2023. (Docs. 58-20; 58-21; 58-8.) The materially adverse actions are
being placed on a PIP in the first week of May 2024 (with formal placement occurring on July 8,
2024) and his termination which became effective on September 11, 2024. (Docs. 53 at 3; 58-3.)
Thus, the latest protected activity occurred on May 15, 2023, when Plaintiff filed his EEOC
charge. The earliest allegedly retaliatory act—being informed he would be placed on a PIP—did
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not occur until approximately twelve months later in early May 2024. (Doc. 58 at 8.) A gap of
one year far exceeds the periods by which causation can be established by temporal proximity
alone. See O’Neal, 237 F.3d at 1253 (holding a three-month gap to be insufficient).
If there is not a “very close temporal proximity between the protected activity and the
retaliatory conduct, the plaintiff must offer additional evidence to establish causation.” O’Neal,
237 F.3d at 1253. 	The only evidence rationally attributable to retaliatory motive presented by
Plaintiff is that Cairns made remarks expressing frustration at Plaintiff after filing a charge of
discrimination—such as Plaintiff is “crying” and the statements in the charge are “lies.” (Doc. 70
at 31, 33 (citing Doc. 70-6 at 51).) 	These comments amount to nothing more than isolated,
ambiguous comments—thereby falling short of retaliatory motive. 	Moreover, such isolated
comments, combined with the elongated temporal proximity, do not suffice to establish causation.
See Trujillo v. Univ. of Colorado Health & Scis. Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998)
(“Federal law does not guarantee a utopian workplace, or even a pleasant one. . . . [P]ersonality
conflicts between employees are not the business of the federal courts.”) (internal quotes omitted).
Nor do the substance of these comments allow for an inference that they were in any way motivated
by retaliatory motive. Accordingly, Plaintiff has failed to establish a prima facie case of retaliation.
Therefore, Defendant’s motion for summary judgment on Plaintiff’s retaliation claims
under Title VII, the ADA, and § 1981 are granted.16
F. 	Disability Discrimination and Denial of Reasonable Accommodations (Count III)
The ADA prohibits “discriminat[ion] against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
16 Plaintiff’s retaliation arguments under Title VII, the ADA, and § 1981 fail even if the court assumes he can establish
a prima facie case and considers this evidence in the pretext analysis. 	Defendant offered legitimate, non-
discriminatory reasons for placing Plaintiff on the PIP and ultimately terminating him: Plaintiff’s failure to meet
critical performance metrics for which he was responsible.
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employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). An employer can incur liability under the ADA for failing
to reasonably accommodate an employee’s disability. Id. § 12112(b)(5)(A). Plaintiff brings such
a claim. (Doc. 18 at 18.)
Under the ADA, the employee must request a “plausibly reasonable accommodation.”
Aubrey v. Koppes, 975 F.3d 995, 1005 (10th Cir. 2020). 	A failure to accommodate claim is
evaluated under a modified McDonnell Douglas burden-shifting framework. Id. Under the first
step, a plaintiff must demonstrate that (1) he is disabled; (2) he is otherwise qualified; (3) he
requested a plausibly reasonable accommodation, and (4) the employer refused to accommodate
his disability. Id. If the plaintiff makes a prima facie showing, the burden shifts to the defendant
to present evidence “either (1) conclusively rebutting one or more elements of plaintiff’s prima
facie case or (2) establishing an affirmative defense, such as undue hardship or one of the other
affirmative defenses available to the employer.” Id. (internal citation omitted). The Tenth Circuit
has explained that if the employer shows either of the above, summary judgment is appropriate.
Id. Defendant moves for summary judgment on the basis that following Plaintiff’s request, he was
granted a sufficiently reasonable accommodation—that is, Defendant rebuts the fourth prong.
(Doc. 58 at 31.) The court finds that Defendant provided a reasonable accommodation.
Here, Plaintiff has MS and Defendant does not dispute that this is a qualifying disability
within the meaning of the ADA. (Doc. 58 at 29–31.) Further, Defendant does not dispute that
Plaintiff is a qualified individual in that he could perform the essential functions of his job with or
without a reasonable accommodation. (Id.) As to the accommodation itself, Plaintiff originally
requested it on August 4, 2022. (Doc. 58-20.) The original request shows that Plaintiff initially
sought an accommodation that would allow him to leave at 10:00 p.m. only on nights when he
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subjectively determined he needed to leave due to flare-ups with his MS. 	(Id.; Doc. 70 at 36.)
While engaging in the interactive process, Plaintiff contends Defendant required him to seek a
more restrictive accommodation, where he was required to leave at 10:00 p.m. every night,
regardless of whether his MS flared up. (Doc. 70 at 36 (citing Plaintiff’s Depo., Doc. 58-2 at 71).)
This later accommodation was eventually granted on July 14, 2023. (Doc. 58-21.) Plaintiff argues
that this alteration to his original request rendered the accommodation unreasonable because, as a
result of his leaving at 10:00 p.m., the numbers on the twilight shift over which Plaintiff was
responsible were negatively impacted, and Defendant ultimately held those shift performance
metrics against Plaintiff when he was terminated. (Doc. 70 at 36.)
In response, Defendant argues that the accommodation granted was reasonable and that
Plaintiff was explicitly informed he was responsible for preparing his crew for the remainder of
the shift. (Doc. 71 at 9–10; see also Doc. 58-21.) Defendant states that as part of engaging in the
interactive process, it was communicated to Plaintiff that to have predictability and certainty for
scheduling and planning purposes, Defendant offered Plaintiff the accommodation of leaving at a
set time each day (10:00 p.m.). (Doc. 71 at 9–10.) Defendant asked only that Plaintiff ensure that
productivity on his sorts did not suffer by communicating to his crew his expectations prior to his
departure each evening. 	(Id.; Doc. 58-21 at 2.)17 	Plaintiff did precisely that, according to the
testimony of Hassina Takilt, a sort manager working directly subordinate to Plaintiff. (Doc. 70-4
at 19–21.) Taklit testified that there was never a time that the shift “ha[d] no idea what’s going
on” after 10:00 p.m., because Plaintiff communicated the “plan and g[ave] his sort managers what
[was needed] for them to do the sort.” (Id.) Ultimately, Defendant claims that the accommodation
17 The accommodation granted by Defendant required that he “maintain communication and planning within the Twi
sort, [and] complete the communication bridge/checklist before leaving by 10pm each evening.” (Doc. 58-21 at 2.)
Neither party has briefed what the communication checklist included.
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it offered exceeded Plaintiff’s original request because he could leave two hours earlier every
night, as opposed to just those nights he felt that he needed too.
Plaintiff now contends there were alternative accommodations available, such as having
Plaintiff’s counterpart—presumably another assistant manager—come in a few hours early and
take responsibility for the remainder of Plaintiff’s shift after he left. (Doc. 70 at 36.) Specifically,
Plaintiff argues that Defendant should have taken such steps after seeing Plaintiff’s performance
numbers were negatively affected after he worked his schedule under the accommodation. (Id.)
As evidence of Defendant being on notice that Plaintiff’s numbers were affected, Plaintiff points
to an email sent from HR Manager Maureen Mahr to a Christene Kreyer18 on September 5, 2023.
(Doc. 70-15 at 1.) 	The email stated that Cairns and Stevenson had expressed concerns that
Plaintiff’s accommodation was not sustainable due to his sorts’ recurring failures and wanted to
explore other options. (Id.) Cairns also stated he believed Plaintiff’s accommodation affected his
ability to do his job. (Doc. 70 at 22 (citing Cairns’ Depo., Doc. 70-6 at 26–27.)
The parties’ dispute boils down to whether the accommodation Plaintiff requested was
refused. The undisputed facts show that Defendant granted Plaintiff an alternative accommodation
that was sufficiently reasonable, thereby not refusing to accommodate Plaintiff’s disability.
First, just because Defendant did not grant Plaintiff’s accommodation request exactly as
asked for, does not render the granted accommodation unreasonable. 	“[T]he term ‘reasonable
accommodation’ refers to those accommodations which presently, or in the near future, enable the
employee to perform the essential functions of his job.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166,
1205 (10th Cir. 2018). The ADA provides that a “reasonable accommodation” may include—
(A) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and
18 Neither party states Ms. Kreyer’s position at FedEx. It appears from the record that she is a case manager involved
in Plaintiff’s May 2024 HR complaint. (See Doc. 58-16 at 3.)
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(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant 	position, 	acquisition 	or 	modification 	of 	equipment 	or 	devices,
appropriate adjustment or modifications of examinations, training materials or
policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.
42 U.S.C. § 12111(9). 	In other words, a reasonable accommodation need not be the exact
accommodation requested by a disabled employee. 	See Selenke v. Med. Imaging of Colo., 248
F.3d 1249, 1261 (10th Cir. 2001) (“[A]n employer is not required to always provide the employee
with the best possible accommodations or in the specific manner the employee requested.”) (citing
29 C.F.R. § 1630.2(p)(1)). Further, an employer retains “broad discretion in determining which
alternative accommodation should be provided.” Id. (citing 29 C.F.R. § 1630.9).
Here, the summary judgment evidence shows that the granted accommodation was
reasonable. Plaintiff originally sought permission to leave at 10:00 p.m. only when he determined
his MS required it. (Doc. 58-20; Doc. 70 at 36.) Defendant granted an accommodation allowing
Plaintiff to leave at 10:00 p.m. every night—an accommodation that expanded Plaintiff’s request
by guaranteeing early departure on every shift. (Doc. 58-21.) This sole modification was put in
place so as to maintain predictability; that is rather than leaving early on an ad hoc basis, Plaintiff
would consistently leave at 10:00 p.m. with the understanding that he would prepare his crew by
communicating expectations before his departure. (Doc. 71 at 9–10; Doc. 58-21.)
Courts have consistently held that an employee cannot maintain a failure to accommodate
claim merely because he did not receive his preferred, subjective arrangement. See Christmon v.
B&B Airparts, Inc., 735 Fed. App’x. 510, 514 (10th Cir. 2018) (stating an accommodation “may
be reasonable even though it is not the one that the employee prefers.”); Norwood v. United Parcel
Serv., Inc., 2021 WL 3022315, at *14 (D. Kan. July 16, 2021), aff’d, 57 F.4th 779 (10th Cir. 2023)
(holding employee did not have the right “to [his] preferred accommodation”) (internal quotations
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omitted); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (“[A]ccommodation may be
reasonable even though it is not the one that the employee prefers.”); Ross v. Colo. Dep’t. of
Transp., 2012 WL 5975086, at *9 (D. Colo. Nov. 14, 2012) (stating the employer’s “duty was to
offer a reasonable accommodation, not necessarily the accommodation plaintiff would have
preferred”). Plaintiff may not have preferred the accommodation he was granted. But that is not
what the ADA requires. Only that the offered accommodation be reasonable.
Moreover, Defendant’s reasoning for this modification is nothing more than a sound
business reality that is part of the interactive process to reach a mutually suitable decision. And
courts “should not second guess the employer’[s] judgment when its description is job-related,
uniformly enforced, and consistent with business necessity.” 	Mason v. Avaya Commc’ns, Inc.,
357 F.3d 1114, 1119 (10th Cir. 2003). 	Plaintiff has not shown that Defendant refused to
accommodate his disability, rather Defendant has definitively shown that he was granted a
“reasonable alternate accommodation.” Ratliff v. AT&T Servs., Inc., 2022 WL 579253, at *7 (D.
Kan. Feb. 25, 2022); Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285–86
(11th Cir. 1997) (“[T]he word ‘reasonable’ would be rendered superfluous in the ADA if
employers were required in every instance to provide employees . . . every conceivable
accommodation possible.”). Moreover, Plaintiff has never challenged the good faith interactive
process between he and Defendant in coming to a mutually acceptable accommodation. Thus, the
court finds that no jury could plausibly find that Defendant refused to accommodate Plaintiff.
Next, as evidence of an unreasonable accommodation, Plaintiff points to an email in which
members of management at FedEx expressed concerns about whether the accommodation was
sustainable given performance issues. (Doc. 70-15 at 1.) The court disagrees. The email, dated
September 5, 2023, reflects management’s concern about operational performance, not a
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withdrawal or denial of the accommodation itself. 	Here, the accommodation approval letter
explicitly required Plaintiff to ensure productivity did not suffer after 10:00 p.m. by requiring that
he communicate expectations to his shift prior to departure. 	(Docs. 58-21; 71 at 9–10.) 	And
Plaintiff’s request to be fully relieved of his managerial job responsibilities is not reasonable.
Therefore, the email communication expressing reservations about Plaintiff’s job performance
does not render the accommodation unreasonable. 	See Tate v. Farmland Indus., Inc., 268 F.3d
989, 993 (10th Cir. 2001) (“Provided that any necessary job specification is job-related, uniformly-
enforced, and consistent with business necessity, the employer has the right to establish what a job
is and what is required to perform it”); Punt v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017)
(“[A]n employee’s request to be relieved from an essential function of her position is not, as a
matter of law, a reasonable or even plausible accommodation”) (internal quotations omitted).
Consistent with the principles articulated in these cases, it was well within FedEx’s prerogative as
the employer to evaluate operational needs, define the essential functions of Plaintiff’s position,
and select among effective accommodations. And that is precisely what FedEx did, as it wanted
predictability for scheduling purposes. While this court may not fully understand every aspect of
this business decision, it is a business judgment nonetheless, which courts are ill-equipped to
second guess. 	Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999) (“[T]he
employer providing the accommodation has the ultimate discretion to choose between effective
accommodations, and may choose the less expensive accommodation or the accommodation that
is easier for it to provide”) (internal quotations omitted); Lamm v. Devaughn James, LLC, 2022
WL 353500, at *4 (10th Cir. Feb. 7, 2022) (unpublished) (holding that a request to work “half-
days” on days the employee subjectively experienced anxiety was not a facially reasonable
accommodation where it would excuse unpredictable attendance).
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Finally, Plaintiff’s argument that alternative accommodations—such as having another
manager come in earlier or hiring different managers to work under Plaintiff—were available does
not create a genuine issue of material fact. The ADA does not require an employer “to reallocate
job duties in order to change the essential functions of a job.” Milton v. Scrivner, Inc., 53 F.3d
1118, 1124 (10th Cir. 1995). See also Selenke, 248 F.3d at 1261; Fjellestad v. Pizza Hut of Am.,
Inc., 188 F.3d 944, 950 (8th Cir. 1999) (“[R]equiring [employer] to create a co-manager position
is not a reasonable accommodation.”). Moreover, the ADA does not require an employer to hire
additional staff merely to accommodate an employee’s requested accommodation. Burnett v. W.
Res., Inc., 929 F. Supp. 1349, 1359 (D. Kan. 1996) (“The ADA does not require an employer to
create a position . . . in order to give an employee the best accommodation or the accommodation
requested”); Burnett v. Pizza Hut of Am., Inc., 92 F. Supp. 2d 1142, 1157 (D. Kan. 2000) (“[A]n
employer [is not] required to hire a new employee to perform certain functions or duties of a
disabled employee’s job which the employee cannot perform by virtue of his or her disability.”).
Plaintiff has failed to make a prima facie showing of his failure to accommodate claim as
no reasonable jury could find that he was refused an accommodation. 	But even if he had,
Defendant still would have prevailed at summary judgment because Plaintiff’s briefing and record
evidence fails to create a triable issue of pretext. 	Therefore, Defendant’s motion for summary
judgment on Plaintiff’s failure to accommodate claim is granted.19
19 Plaintiff’s complaint is not a model of clarity as to precisely what types of ADA claims he is asserting. Further, it
is unclear from both the pretrial order and the parties’ briefings whether Plaintiff even brings a claim for disability
discrimination under the ADA. (Docs. 53 at 10; 58 at 28–31; 70 at 31–33.) The court recognizes that a failure-to-
accommodate claim and a disability discrimination claim are separate and distinct. Plaintiff seems to claim that
Defendant’s failure to accommodate him was both disability discrimination as well as a failure to accommodate the
same. That said, if Plaintiff intended to bring disability discrimination as a separate claim, it reasonably should have
been pleaded under a different count in the complaint, as was done with the retaliation claim (Count IV) brought under
the very same statute. (Doc. 18 at 18–20.) The parties’ lack of clarity on this issue is unhelpful to the court’s analysis.
Nevertheless, in an abundance of caution, the court will briefly address the issue. To the extent Plaintiff brings a claim
under the ADA for disability discrimination, it appears clear that Defendant moved for summary judgment on such a
claim. (Doc. 58 at 28.) It is unclear what Plaintiff’s arguments in support of the claim are. However, the pretrial
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G. ADEA
1. 	Age Discrimination (Count V)
Next, Plaintiff brings an age discrimination claim under the ADEA. (Doc. 18 at 21.) To
state a claim of age discrimination, Plaintiff must show that he: (1) is a member of the class
protected by the ADEA; (2) suffered an adverse employment action; and (3) the challenged action
occurred under circumstances giving rise to an inference of discrimination. Bennett, 792 F.3d at
1266. Age must be the “but-for” cause of the adverse treatment at issue. Babb v. Wilkie, 140 S.
Ct. 1168, 1174 (2020) (“[A]ge must be the but-for cause of differential treatment, not that age
must be a but-for cause of the ultimate decision.”) (emphasis in original).
Claims brought under the ADEA resting on circumstantial evidence are evaluated under
the McDonnell Douglas framework. 	Laul v. Los Alamos Nat’l Lab’ys, 714 F. App’x 832, 839
(10th Cir. 2017) (same standard for analyzing discrimination cases under Title VII and the ADEA).
An inference of unlawful discrimination can be shown by “a variety of circumstances,” ranging
from “actions or remarks made by decisionmakers that could be viewed as reflecting a
discriminatory animus” to “the timing or sequence of events leading to” the employment action.
Laul, 714 F. App’x at 836. Plaintiff carries the initial burden of establishing a prima facie case.
Defendant concedes that Plaintiff has sufficiently proven the first two elements—namely, Plaintiff
is a member of a protected class as defined by the ADEA and the adverse action was Plaintiff not
order points to the following adverse actions: Defendant’s failure to promote him in 2022, issuing written discipline,
placing him on a PIP, and ultimately discharging him. (Doc. 53 at 10.) See D. Kan. R. 16.2(b) (stating that at this
stage of the proceeding, the pretrial order controls). The court has already addressed these same adverse actions under
Title VII and the ADEA, and the court cannot locate record evidence that supports the claim that any of these adverse
actions occurred because of Plaintiff’s disability. See Hardwick v. Amsted Ry. Co., 929 F. Supp. 2d 1129, 1135 (D.
Kan. 2013) (“To make out a prima facie case of disability discrimination under the ADA, plaintiff must show that . .
. he suffered discrimination by an employer because of that disability.”) (emphasis added). Therefore, to the extent
Plaintiff brings a separate claim for disability discrimination, any such argument would fail for the same reasons
previously articulated: Defendant identified legitimate, non-discriminatory reasons why it took these adverse actions,
and Plaintiff has failed to rebut it with admissible evidence.
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being chosen for promotion in 2022. (Doc. 58 at 28–34.) Defendant moves for summary judgment
on the basis that Plaintiff cannot establish the third prong—that is, the challenged action does not
give rise to an inference of discrimination. (Id.) The court agrees.
The only evidence Plaintiff cites that rationally supports his age discrimination claim are
comments made by Cairns after Plaintiff failed to get the 2022 KCMO position and by Dan
Huesman, who stated that Plaintiff was “old school.” (Doc. 70 at 28–29 (citing Huesman’s Depo.,
Doc. 70-3 at 17–18.) Specifically, Plaintiff alleges that Cairns told him “You’re old . . . You’re
on your way out. They’re going to probably pass you over, go with a younger person.” (Id. at 29
(quoting Plaintiff’s Depo., Doc. 58-2 at 28–29.)20 Plaintiff admits he has no other evidence of age
discrimination other than Mr. Divers, who is younger than Plaintiff, being promoted in 2022. (Doc.
58 at 34.) These statements fail to constitute sufficient evidence of age discrimination.
These statements are best characterized as stray remarks and are insufficient to create a
jury issue in an ADEA case. “[A]n isolated or ambiguous comment is insufficient alone to support
an inference of discrimination.” Kawahara v. Guar. Bank & Tr., 835 F. App’x 386, 390 (10th Cir.
2020) (holding “where [defendant] called [plaintiff] an ‘old lady’” to be insufficient to support an
age discrimination claim); Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir.
20 The court notes several problems with this evidence of what Cairns allegedly said. First, Plaintiff did not include
this comment made by Cairns in any of his EEOC charges or his complaint and only thought of it when asked during
his deposition. Second, after additional questioning, Plaintiff casts doubt on whether this conversation ever took place,
stating “[t]he more I think about it, I think [Cairns] might have put it in an email,” which is absent from the record.
(Plaintiff’s Depo., Doc. 58-2 at 29.) Such evidence is problematic. Nevertheless, the court must view all evidence in
the light most favorable to Plaintiff. Therefore, the court will proceed as if Cairns did make this statement.
Plaintiff also points to Cairns’ deposition where Cairns told Plaintiff what Cairns had allegedly been told by Huesman,
which was that Huesman would never promote Cairns because Cairns would promote Plaintiff. (Doc. 70 at 15.) This
statement is as convoluted as it is problematic—namely, because Plaintiff fails to explain how this comment relates
to Plaintiff’s ADEA claim. It appears that Plaintiff wants this court to adopt his subjective understanding that this
comment implies that Huesman did not want Plaintiff promoted due to his age. This the court cannot do. See Adamson
v. Multi Cmty. Diversified Servs., Inc., 2005 WL 3682144, at *5 (D. Kan. Nov. 17, 2005), aff’d on other grounds, 514
F.3d 1136 (10th Cir. 2008) (“[A]n employee’s subjective understanding of a comment cannot alone support an
inference of [age] animus.”).
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1994) (holding comments that the hospital “need[s] some new young blood” and “long-term
employees have a diminishing return” were insufficient to create a jury issue in an ADEA case).
In the current case, Huseman’s comments that Plaintiff is “old school,” and Cairn’s comments that,
in essence, call Plaintiff old and therefore likely to get passed over for promotion are nothing more
than isolated and ambiguous remarks, insufficient to create a triable jury issue.
Moreover, “age-related comments by non-decisionmakers are not material in showing the
[employer’s] action was based on age discrimination.” Cone, 14 F.3d at 531; Mapp v. Duckwall-
Alco Stores, Inc., 461 F. App’x 722, 727 (10th Cir. 2012); Steger v. General Electric Co., 318 F.3d
1066, 1079 (11th Cir. 2003) (“[S]tatements made by nondecisionmakers or [those] unrelated to
the decisional process” do not demonstrate discriminatory intent); Ezold v. Wolf, Block, Schorr
and Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) (holding that remarks made by an individual
who took no part in the hiring interview to be immaterial to the question of age discrimination).
Here, it is uncontested that Cairns took no part in the hiring process for the 2022 position, and
Huesman “did not personally sit on the interview panel for this position.” (Docs. 58 at 34; 70 at
29.) While Plaintiff states that Huesman made a directive not to promote Plaintiff, he points to no
evidence to support that assertion. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 876 (10th Cir.
2004) (“Testimony which is grounded on speculation does not suffice to create a genuine issue of
material fact.”) Accordingly, Huesman and Cairns are best characterized as non-decisionmakers,
rendering their comments immaterial when assessing Plaintiff’s age discrimination claim.
Moreover, these comments are too stray and remote to support an inference of age discrimination.
Therefore, Defendant’s motion for summary judgment on Plaintiff’s age discrimination
claim under the ADEA is granted
2. 	Retaliation (Count VI)
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Plaintiff has also brought an ADEA retaliation claim. (Doc. 18 at 22.) To state a prima
facie case, Plaintiff must show (1) he “engaged in protected opposition to discrimination, (2) a
reasonable employee would have considered the challenged employment action materially
adverse, and (3) a causal connection existed between the protected activity and the materially
adverse action.” 	Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012)
(quotation marks and citation omitted). 	The ADEA recognizes opposing or complaining about
age discrimination by the employer as a protected activity. MacKenzie v. City & Cnty. of Denver,
414 F.3d 1266, 1278 (10th Cir. 2005). Defendant moves for summary judgment on the basis that
Plaintiff never opposed nor complained about age discrimination to anyone and thus did not
engage in protected opposition to it. (Doc. 58 at 35.) 21
Here, Defendant argues Plaintiff’s ADEA retaliation claim fails because the record is void
of evidence showing that Plaintiff ever formally complained about age discrimination to anyone.
(Doc. 58 at 35–37.) Defendant recognizes that opposing or complaining about age discrimination
is a protected activity but argues that Plaintiff simply never did. (Id.) Defendant points to the only
complaint Plaintiff made to HR, in May of 2024, which did not contain nor even allude to his age.
(Doc. 58-16.) In response, Plaintiff argues he engaged in a protected activity because, even though
it was informal, he told Teri Walsh-Prondzinski in HR and Cairns that the 2022 promotion was
only given to Mr. Divers “because he was younger.” (Doc. 70 at 18, 31 (citing Plaintiff’s Depo.,
21 It is not clear whether Plaintiff seeks to argue that his filing of a charge of discrimination with the EEOC amounted
to protected opposition to discrimination as part of his prima facie ADEA retaliation claim. (Docs. 70 at 31, 53 at 10.)
However, even if Plaintiff did intend to make such an argument, it is insufficient to raise a triable jury issue because
there is no record evidence suggesting Defendant was aware that Plaintiff filed this charge. And because no evidence
exists that Defendant knew of the filing; it cannot form the basis for Plaintiff’s engagement in protected opposition—
precluding its use in establishing a prima facie claim. Petersen, 301 F.3d at 1188 (“An 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.”); Lindsay v. Denver Pub. Schs., 88 F.4th 1323, 1328 (10th Cir. 2023) (holding that
“bare speculation” supporting an employer’s knowledge of plaintiff’s protected opposition won’t suffice).
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Doc. 58-2 at 52.) This single, vague reference to age discrimination is insufficient to show that he
engaged in a protected activity.
An employee’s “[p]rotected opposition can range from filing formal charges to voicing
informal complaints to superiors.” Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1015 (10th Cir.
2004). While “no magic words are required” to establish protected opposition, the Tenth Circuit
has made clear that a “vague reference to discrimination and harassment without any indication
that this misconduct was motivated by [age] does not constitute protected activity and will not
support a retaliation claim.” Anderson v. Acad. Sch. Dist. 20, 122 F. App’x 912, 916 (10th Cir.
2004); Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008); see also Boliere
v. Robert Brodgen’s Olathe Buick-GMC Inc., 706 F. Supp. 3d 1275, 1295 (D. Kan. 2023)
(“[C]omplaints vaguely referencing ‘discrimination’ or ‘harassment’ that do not give some
indication that the conduct at-issue is unlawful . . . are not enough.”).
Here, Plaintiff relies solely on an informal remark made to Ms. Walsh-Prondzinski in
which he told her that Divers got the 2022 promotion “because he was younger.” (Doc. 70 at 18,
31 (citing Plaintiff’s Depo., Doc. 58-2 at 52.) 	Viewing the facts in the light most favorable to
Plaintiff, this comment amounts to nothing more than a vague and isolated remark which falls
outside the definition of protected opposition. Courts in this District have held similar statements
to be insufficient to put their employers on notice to their protected opposition. Rangel v. Sanofi-
Aventis U.S., LLC, 2012 WL 628240, at *5 (D. Kan. Feb. 27, 2012), aff’d, 507 F. App’x 786 (10th
Cir. 2013) (holding an employee did not engage in protected activity where he never complained
in writing of age discrimination but later testified that he orally raised the issue).
Additionally, even if this statement amounts to being protected opposition, Plaintiff’s
testimony reveals that he made the comment to Ms. Walsh after Divers was informed of the 2022
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promotion. 	(Plaintiff’s Depo., Doc. 58-2 at 52.) 	This timing is problematic as the earliest
materially adverse employment action taken against Plaintiff was when he was informed that he
would be placed on a PIP in May 2024. 	(Doc. 58 at 8.) 	This gap exceeds a year—effectively
precluding a reasonable jury from finding causation. 	See Hinds, 523 F.3d at 1204 (“[E]leven
months [is] a time span too extended to infer retaliatory motive”). This record shows Plaintiff is
relying on speculative and conclusory assertions rather than evidence that he ever engaged in a
protected activity—whether formally or informally. Accordingly, Plaintiff has failed to establish
his prima facie case.
Even if Plaintiff was able to establish a prima facie case, he cannot establish pretext. As
previously discussed, Defendant offered legitimate, non-discriminatory reasons for placing
Plaintiff on the PIP and terminating him: Plaintiff’s failure to meet critical performance metrics.
(Docs. 58-2 at 14; 58-3; 58-21.) 	And Plaintiff admits that Cairns had approached him multiple
times before being placed on a PIP to discuss Plaintiff’s performance. (Plaintiff’s Depo., Doc. 58-
2 at 26.) Defendant also offered legitimate, non-discriminatory reasons for promoting Divers over
Plaintiff: Divers was more qualified and performed better during the interview process. (Doc. 58
at 16–22.) Plaintiff fails to rebut either of these reasons.
Plaintiff appears to argue that these actions were pretext because: (1) he had a long history
of receiving good performance reviews, (2) Cairns would not change the schedules of members of
Plaintiff’s sort, (3) Cairns hired inexperienced staff to work on Plaintiff’s sort, (4) and that he was
more qualified than Divers. (Doc. 70 at 8, 16, 32–33, 42.) As Defendant highlights, these bare
assertions provide no evidence that Defendant took any adverse actions or promoted Divers
because of Plaintiff’s age. Forge v. Sisters of Charity of Leavenworth, 2019 WL 4241130, at *13
(D. Kan. Sept. 6, 2019) (“[T]he fact that [Defendant] hired younger employees cannot establish
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age-based animus or show that [Defendant] terminated [P]laintiff on the basis of his age.”); Diskin,
1996 WL 717328 at *5 (“Plaintiff must show more than a dispute over qualifications to prove
pretext”) (internal quotations omitted). Accordingly, Plaintiff has failed to present any evidence
suggesting that a primary factor for Defendant’s decisions was age.
Therefore, Defendant’s motion for summary judgment on Plaintiff’s retaliation claim
under the ADEA is granted.
H. FMLA Interference (Count VII)
Next, Plaintiff brings a claim of FMLA interference, alleging he was denied promotion due
taking FMLA leave. (Doc. 18 at 23.) Plaintiff must show “(1) that []he was entitled to FMLA
leave, (2) that some adverse action by the employer interfered with [his] right to take FMLA leave,
and (3) that the employer’s action was related to the exercise or attempted exercise of [his] FMLA
rights.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Defendant
moves for summary judgment on the basis that Defendant took no adverse action against Plaintiff
because Plaintiff never applied for a job after taking FMLA leave. (Doc. 58 at 37.)
To satisfy the second element, the employee must show “that [he] was prevented from
taking the full 12 weeks . . . of leave guaranteed by the FMLA, denied reinstatement following
[FMLA] leave, or denied initial permission to take [FMLA] leave.” Dalpiaz v. Carbon Cty., Utah,
760 F.3d 1126, 1132 (10th Cir. 2014). 	“Thus, an interference claim arises when an adverse
employment decision is made before the employee has been allowed to take FMLA leave or while
the employee is still on FMLA leave.” Id. Defendant emphasizes it is uncontested that Plaintiff
took FMLA leave from September 14, 2023, to December 10, 2023 (12 weeks), and “experienced
no resistance or difficulty from FedEx for taking that leave.” (Doc. 58 at 33; see Plaintiff’s Depo.,
Doc. 58-2 at 12, 53.) It is further undisputed that Plaintiff never applied for a position after taking
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FMLA leave. (Docs. 58 at 33; 53 at 2.) Moreover, Plaintiff in his deposition testimony agrees
that there were no failures to promote after his FMLA leave. (Doc. 58 at 33–34; Plaintiff’s Depo.,
Doc. 58-2 at 53.) Therefore, Plaintiff cannot establish FMLA interference based on a promotion
denial that occurred before he ever exercised his FMLA rights. While Plaintiff appears to have
waived his FMLA claim for not substantively addressing it in his response, to the extent he has
not, Plaintiff’s FMLA claim fails because he was permitted to take FMLA leave, was allowed to
take the full 12 weeks, and was not denied reinstatement or promotion for taking leave.
Therefore, Defendant’s motion for summary judgment on Plaintiff’s FMLA interference
claim is granted.
I. 	Section 1981 Hostile Work Environment Claim (Count VIII)
Finally, Plaintiff alleges that Defendant subjected him to an “intimidating, hostile and
offensive working environment” in violation of 42 U.S.C. § 1981. 	(Doc. 18 at 24–25.) 22
Defendant argues it is entitled to summary judgment because Plaintiff cannot establish a prima
facie case. The court agrees.
Under McDonnell Douglas, Plaintiff carries the initial burden of establishing a prima facie
case, requiring a showing that (1) he is a member of a protected group, (2) he was subject to
unwelcome harassment, (3) the harassment was based on race, and (4) the harassment was
pervasive or severe enough to alter the terms, conditions, or privilege of employment and created
an abusive work environment. Owens v. Unified Gov’t of Wyandotte Cnty./Kansas City, Kansas,
2022 WL 2131117, at *14 (D. Kan. June 14, 2022) (citing Lounds v. Lincare, Inc., 812 F.3d 1208,
1222 (10th Cir. 2015)). Plaintiff may establish that the harassment altered the terms and conditions
22 Defendant addresses allegations of race discrimination contained in Plaintiff’s first amended complaint (Doc. 18)
and asserts that they fail to establish a basis for a § 1981 claim. (Doc. 58 at 38–39.) At this stage of the proceeding,
the pretrial order controls. D. Kan. R. 16.2(b). According to the pretrial order, Plaintiff’s claim of race discrimination
under § 1981 is based on hostile work environment. (Doc. 53 at 9–10.)
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of his employment via two independent and equal grounds: (1) the pervasiveness of the harassment
or (2) the severity of the harassment. Tademy v. Union Pac. Corp., 614 F.3d 1132, 1143 (10th Cir.
2008); Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998).
Here, Defendant argues Plaintiff has not established the alleged harassment was so
pervasive or severe that it altered the terms and conditions of his employment. (Doc. 58 at 38.)
Namely, Defendant points to Plaintiff’s own testimony where Plaintiff admits that he does “[n]ot
. . . know of” any instances at Defendant’s workplace where he was subjected to physically or
verbally hostile or abusive conduct. (Doc. 58 at 39 (citing Plaintiff’s Depo., Doc. 58-2 at 54).) In
response, Plaintiff does not address this alleged hostile work environment claim. Thus, Plaintiff
appears to have abandoned it. See McCants, 2018 WL 2445157 at *5 (“[W]hen a party fails to
respond to arguments made to support a motion for summary judgment, the party, in effect,
abandons that claim.”). To the extent he has not, Plaintiff wholly fails to provide facts supporting
the existence of workplace harassment, and moreover, if there was such harassment, Plaintiff does
not provide record evidence that it was based on his race. Thus, the court finds that Plaintiff has
not shown a genuine issue of material fact with regard to his hostile work environment claim.23
Therefore, Defendant’s motion for summary judgment on Plaintiff’s hostile work
environment claim under § 1981 is granted.
IV. 	Conclusion
THEREFORE, Defendant’s motion for summary judgment (Doc. 57) is GRANTED;
Plaintiff’s motion for spoliation (Doc. 59) sanctions is DENIED; and Plaintiff’s motion to strike
or, in the alternative, for leave to file a limited surreply (Doc. 72) is DENIED.
23 To the extent Plaintiff brings a hostile work environment claim under Title VII, it fails for the same reasons.
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FURTHER, because the parties stipulated that FedEx Corporation is now the only properly
named defendant for purposes of liability, the Clerk is DIRECTED TO TERMINATE FedEx
Ground Package System, Inc. as a defendant.
IT IS SO ORDERED. Dated this 27th day of January, 2026.
__s/ John W. Broomes________________
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
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