Durant v. MillerCoors, LLC
415 F. App'x 927
10th Cir.2011Background
- Durant, longtime MillerCoors employee, was terminated in 2007 for sexual harassment after a female coworker’s report.
- Complainant reported harassment on Sept. 2, 2007; Durant’s supervisor suspended him that day.
- Internal investigation (Oct. 26, 2007) concluded Durant violated the sexual-harassment policy; termination upheld on internal appeal.
- Criminal charges were filed; Durant was acquitted after a jury trial.
- Durant sued MillerCoors for Title VII gender discrimination and retaliation and for USERRA retaliation; district court granted summary judgment for MillerCoors; the court of appeals affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| USERRA retaliation causation | Durant shows substantial/motivating factor despite gap | Five-year gap negates causation; no evidence supervisor relied on protected action | No fact showing substantial motivating factor; summary judgment affirmed |
| Gender discrimination prima facie | Evidence shows unusual discriminatory bias against majority; direct and circumstantial evidence | No unusual employer; no similarly situated comparators; no direct evidence | No prima facie case; district court affirmed |
| Title VII retaliation protected activity | Durant engaged in protected opposition by counseling and denying charges | Counseling job performance not protected; denial of charges not protected opposition | No protected opposition proven; summary judgment affirmed |
| Burdens and background evidence for discrimination | Homer James case and handling of female harasser show bias against men | Evidence insufficient to show unusual employer discriminating against the majority | Insufficient to establish discrimination; judgment affirmed |
Key Cases Cited
- Berry v. T-Mobile USA, Inc., 490 F.3d 1211 (10th Cir. 2007) (standard for summary judgment in discrimination cases; burden on movant)
- Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187 (10th Cir. 2008) (temporal proximity as evidence of retaliation; three months typically close)
- Staub v. Proctor Hosp., 131 S. Ct. 1186 (Supreme Court 2011) (cat's paw theory of liability for supervisor-driven action)
- Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008) (participation clause protects defense against charges in Title VII proceedings)
- Notari v. Denver Water Dep’t., 971 F.2d 585 (10th Cir. 1992) (background circumstances to show unusual discrimination against majority)
- McGowan v. City of Eufala, 472 F.3d 736 (10th Cir. 2006) (similarity and comparators in disparate treatment analysis)