Opinion
CIVIL ACTION NO: 01-3842 SECTION: "K"(1)
April 30, 2002
ORDER AND REASONS
The defendant, Freeman Decorating Company ("Freeman"), filed a motion for summary judgment on March 20, 2002. Rec. doc. 12. The plaintiff, Kenneth Battie ("Battie"), filed an opposition. Rec. doc. 20. The parties consented to trial before a Magistrate Judge. Rec. doc. 11.
On July 26, 2001, Battie filed a complaint in proper person and named his employer, Freeman, and three of its employees as defendants. Battie alleged a violation of Title VII resulting from a wrongful suspension from his employment for five days. This action is captioned "Kenneth Battie v. Freeman Decorating, et al," CA 01-2282 "K"(1). ("Battie I"). SeeBattie I at Rec. doc. 1. In Battie I, the Court ordered the dismissal of Battie's complaint against the three employees. Battie at Rec. doc. 17. The remaining defendant, Freeman, filed a motion for summary judgment,Battie at Rec. doc. 34, in which the undersigned issued a report and recommendation that the motion be granted. Battie I at Rec. doc. 37. Battie objected to the report and recommendation (Battie I at Rec. doc. 39), and the matter is pending before the Court.
On December 24, 2001, Battie filed a complaint in this action and named only Freeman as a defendant. ("Battie II"). Battie alleges that Freeman wrongfully issued him a written warning in retaliation for filing Battie I. Battie had been employed continuously by Freeman since 1998. In December, 2000, Freeman issued a memorandum to all employees concerning yellow warning slips. The memorandum described a policy for employees who received yellow warning slips for minor offenses. If an employee received three warnings, the situation would be reviewed by management. Rec. doc. 20 at ex. G.
The record shows three documents captioned as "warning slip." The oldest appears to be dated February 21, 2000, and shows that Battie was late and did not call in. The slip is signed by Battie. Rec. doc. 20 at ex. E. The second is dated July 26, 2001 and shows that Battie was absent on that date and called in. The slip is not signed by Battie. Rec. doc. 20 at ex. F. The third slip is dated September 6, 2001 or about six weeks after the filing of Battie I. Rec. doc. 12 at ex. I. It shows that Battie was absent for a doctor's appointment. It too was not signed by Battie.
Because they are photocopies it is not possible to tell the color of the originals.
Battie's complaint alleges that, in June, 2001, he provided Freeman with oral and written notice that he was a diabetic and needed to go to a medical clinic for treatment. Battie alleges that he was "written up" not because he went to the doctor, but because he filed Battie I. Battie alleges that on September 6, 2001, he went to the medical clinic for the treatment of his diabetic condition and when he returned to work the next day a yellow slip was sitting on his supervisor's desk. Battie alleges he asked for an explanation for the presence of the yellow slip when he had provided advance notice that he would be absent to go to the medical clinic. Battie alleges he was not satisfied with the explanation given to him and he sought an explanation from persons higher up in Freeman. Battie alleges he was not satisfied with Freeman's explanation for the yellow slip so he filed the complaint in this action. Battie II at Rec. doc. 1. Battie does not allege that Freeman took any action in response to the filing of Battie I other than "writing him up."
Freeman's motion for summary judgment was filed on March 20, 2002 and states that Battie was then employed by Freeman. See Freeman's statement of uncontested facts. Battie's opposition was filed on April 16, 2002 and he describes himself as a former employee of Freeman. While Battie's employment status at the time of the issuance of this order is not clear, there is no allegation by Battie that Freeman took any retaliatory action other than a written warning.
In support of its motion for summary judgment, Freeman submitted the affidavits of Steve Finn, Ched Callegan and Sal Mancuso. Finn identified himself as Battie's immediate supervisor and reports that a record showing that Battie would not be at work on September 6, 2001 on account of a medical appointment was prepared on a yellow warning slip. Callegan, the supervisor of the carpet department, testified that:
Although the yellow cards indicate that they are disciplinary warnings, at the time of the events in question, they were frequently used to document the reasons for employee absences as a matter of convenience because they are the same size as the employee time cards and are, conveniently stored with the time cards.
Rec. doc. 12 at ex. J. Callegan states that Battie was not written up for missing work on September 6, 2001 because the absence was in fact excused. Id. Mancuso, the warehouse manager for Freeman, also testified that Battie did not receive any discipline, written or verbal, in connection with his absence on September 6, 2001. Rec. doc. 12 at ex. K. The fact that the September 6, 2001 "warning slip" was not signed by Battie confirms that it was not issued to him.
Battie contends he was "written up" after he filed Battie I and he should not have been "written up." Rec. doc. 20. In support of his opposition, Battie submits the following exhibits: (a) medical notes; (b) information on federal employment laws; (c) record of medical appointments for Battie's diabetes appointments; (d) note showing that Battie was seen by a doctor on January 11, 2001 and photographs showing that a note was posted on a Freeman bulletin board; (e) warning slip for February 21, 2000 and a 2000 calendar; (f) warning slip for July 26, 2001; (g) December 1, 2000 memorandum to all employees concerning yellow warning slips; (h) photographs of a bulletin board; (i) bulletin for funeral service of J.D. Dutton on May 15, 2001; 6) appointment note for Battie for October 16, 2001; (k) report on a visit by Battie to Ochsner's emergency department on April 7, 2001 showing he was able to return to work with no restrictions; (l) an appointment note for Battie for September 11, 2001 at the diabetes clinic of Charity Hospital; and (m) a death notice for a relative of Battie with a date of death of January 3, 2001; and (n) a note from Ochsner showing that a nephew of Battie was in the recovery room in the early morning hours of an unspecified date. Rec. doc. 20.
STANDARD ON SUMMARY JUDGMENT
Fed R. Civ. P. 56 provides in pertinent part that summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986), and Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 3189 (1990). To that end, the court must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).
Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; see Lujan, 497 U.S. at 885-86, 110 S.Ct. at 3187. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54.
This burden is not satisfied with "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, by "conclusory allegations," Lujan, 497 U.S. at 871-73, 110 S.Ct. at 3180, by "unsubstantiated assertions," Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by only a "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). The court resolves factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. The court does not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Lujan, 497 U.S. at 888, 110 S.Ct. at 3188. Summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993). If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted.
For summary judgment in a Title VII case the Fifth Circuit has stated:
We review a district court's grant of summary judgment de novo, applying the same Rule 56 standard as the district court. "Although summary judgment is not favored in claims of employment discrimination, it is nonetheless proper when `there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.'" In making a summary judgment determination, "[d]oubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party." The Supreme Court recently emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts," which "are jury functions, not those of a judge."Fierros v. Texas Dept. of Health, 274 F.3d 187, 190-91 (5th Cir. 2001) (Citations omitted).
ANALYSIS
Battie contends that, after he filed the complaint in Battie I, Freeman unlawfully retaliated against him when his supervisor prepared a warning slip concerning his absence from work on September 6, 2001 for a doctor's appointment. Battie contends he gave Freeman advance notice of his need to see a doctor on that date and the warning slip should not have been written. Freeman contends that no warning slip was issued to Battie and that Freeman was merely making a routine employment record to show Battie's excused absence from work. In Arnold v. United States Department of the Interior, 213 F. 193 (5th Cir. 2000), the Fifth Circuit said:
To state a claim for retaliation, a plaintiff must prove that: (1) he engaged in protected activity pursuant to Title VII; (2) he suffered an adverse employment action; and (3) a casual nexus exists between the protected activity and the adverse employment action.Id. at 198. Freeman concedes that when Battie filed the complaint inBattie I he engaged in activity protected by Title VII. Freeman contends that Battie did not suffer an adverse employment action because he filed the complaint in Battie I.
In Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995), the Fifth Circuit found that none of the plaintiffs retaliation complaints involved adverse employment actions and said:
Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.Id. at 781-82. In Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260, the Fifth Circuit found that, because of their lack of consequences to the plaintiff, "the verbal threat of being fired, the reprimand for not being at her assigned station, a missed pay increase, and being placed on `final warning'" did not constitute adverse employment actions. Id. at 708.
To hold otherwise would be to expand the definition of "adverse employment action" to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future. Such expansion is unwarranted.
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The import of these cases, culminating in Dollis, is the long-held rule that Title VII's anti-retaliation provision refers to ultimate employment decisions, and not to an "interlocutory or mediate" decision which can lead to an ultimate decision.Id. at 708 (Citations omitted).
Even assuming that Battie's allegation that Freeman issued him a warning slip for an absence without cause and in retaliation for filingBattie I, the issuance of the warning slip does not rise to the level of an adverse employment action. More importantly, the undisputed evidence shows that a warning slip was not issued to Battie. Instead, Freeman merely recorded Battie's authorized absence from work on a form that was also used to issue warnings to its employees. There is no evidence that the form was issued to Battie with the requirement that it be signed by him, nor does Battie allege that a warning was issued to him. Battie's complaint in Battie II merely reflects that when he returned to work on the day after his medical appointment "a yellow card was sitting on his (Battie's supervisor's) desk. . . ." Battie I, at Rec. doc. I at p. 3. The affidavit of Battie's supervisor shows he placed the yellow form recording Battie's authorized absence with the time cards for the other employees. Rec. doc. 12 at ex H. Freeman's motion for summary judgment will be granted, as there was not an action that can be deemed retaliatory in this case.
Freeman also seeks reimbursement of costs and attorneys' fees pursuant to 42 U.S.C. § 2000e-5 (k) on the ground that Battie's complaint inBattie II is frivolous, arbitrary and vexatious. The undersigned declines to award Freeman costs and attorneys' fees. Freeman would have been better served if it not used the warning slip form to record authorized absences from work.
IT IS ORDERED that Freeman's motion for summary judgment (Rec. doc. 12) is GRANTED and Battie's claims in Battie II are dismissed with prejudice, each party to bear his/its own costs.