Opinion
Civil No. 3: 02-CV-1715-H
October 31, 2003
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion for Summary Judgment, filed September 22, 2003; Plaintiff's Response, filed October 15, 2003; and Defendant's Reply, filed October 28, 2003. Defendant seeks summary judgment on Plaintiffs causes of action for employment discrimination. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the Opinion for the reasons stated below that Defendant's Motion for Summary Judgment should be GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff Firoozeh H. Butler ("Butler"), a woman of Iranian descent and a practicing Muslim, began working for Defendant MBNA Technologies, Inc. ("MBNA"), in 1993 as a Senior Programmer Analyst. (Compl. at 3). Plaintiff is currently employed by Defendant as a Tier 2 Software Engineer II. ( Id. at 3).
In her complaint, Plaintiff listed nine causes of action pursuant to both federal and state law for employment discrimination, IN response to Defendant's Motion for Summary Judgment, Plaintiff stipulated to dismissal of all state law claims. (Pl.'s Br. at 12, n. 1). The remaining claims before the Court are claims for employment discrimination pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Plaintiff claims she suffered "1) a demotion; 2) harassment and hostile work environment; 3) retaliation; and 4) discriminatory compensation." (Pl.'s Br. at 12).
In addition to stipulating to the dismissal of her state law claims, Plaintiff also stipulated to dismissal of her denial of promotion claim and disparate impact claim. See PL's Br. at 12, n. 2. Accordingly, the only claims remaining are those discussed in this Memorandum Opinion and Order.
Plaintiff's complaint derives from several incidents with supervisors and other employees of Defendant. Plaintiff claims that in 1997, her supervisor at the time, Mike Sullivan, commented to Plaintiff that Iranians are crazy and put dirty laundry on their heads. (Def.'s App. at 14; Pl.'s App. at 8). Plaintiff claims that around the same time, Don Little, a manager at Defendant, made remarks that "Middle Eastern people smell and . . . [are] crazy." (Def.'s App. at 12; Pl.'s App. at 6). Plaintiff claims she complained to a vice president of Defendant about the remarks, but did not make a written complaint. (Def.'s App. at 13; Pl.'s App. at 7). Plaintiff admits Mr. Sullivan apologized to Plaintiff a few weeks after he made the remarks and did not make any further derogatory remarks. (Def.'s App. at 17; Pl.'s App. at 10).
Plaintiff also claims that discriminatory remarks were made in early 2000. Plaintiff claims that while at the Galleria shopping mall in Dallas she saw Kim Murphy, an employee of Defendant in the human resources department. According to Plaintiff, she and Murphy engaged in civilized conversation until Murphy, in reference to a question about why her husband no longer worked in Saudi Arabia, referred to Saudis as "C.J.," which Murphy's husband translated as meaning "camel jockeys." (Def.'s App. at 16; Pl.'s App. at 11). Plaintiff complained to management about this incident at the Galleria, but did not file a written complaint. (Def.'s App. at 19; Pl.'s App. at 12). Plaintiff then claims that Murphy was rude and unprofessional at work and that Plaintiff was "written up" for making unauthorized personal phone calls for which others were not reprimanded. (Def.'s App. at 19; Pl.'s App. at 12).
Plaintiff claims another incident occurred in 2000 as well. According to Plaintiff, Mary Thompson, a co-worker of Plaintiff, said to Plaintiff that she and Plaintiff might be having trouble communicating because of cultural differences. (Def.'s App. at 21-22; Pl.'s App. at 13-14). Plaintiff also claims Thompson said something about Americans not forgetting that Iranians take hostages. ( Id.)
Plaintiff claims that Christie then began a concerted campaign to harass Plaintiff by targeting her for termination. ( See Pl.'s Br. at 7). Plaintiff claims that her year-end evaluations were manipulated to reflect that she was doing her job poorly when she usually was evaluated as doing well. ( Id.). The poor year-end evaluation affected Plaintiff's yearly raise and eventually led to Plaintiff being reclassified from a Tier 3 employee to a Tier 2 employee in early 2001. ( Id. at 8). Plaintiff claims this was a demotion. ( Id.).
Plaintiff claims that as a result of the reclassification or demotion, she experienced work-related stress and had to take a short-term medical leave of absence from work. ( Id.). Plaintiff claims that while she was on leave, Defendant threatened to terminate her benefits if she did not see a psychiatrist. ( Id. at 9-10). After Plaintiff returned to work, she again received a poor year-end evaluation, which was changed to a satisfactory rating after Plaintiff complained. ( Id. at 11).
Plaintiff filed a complaint with the Equal Employment Opportunity Commission on February 6, 2002, and received a right to sue letter sometime after that date. (Def's App. at 203).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits, and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.GV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of III., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. ANALYSIS
Plaintiff asserts four causes of action for employment discrimination pursuant to Title VII and § 1981: 1) demotion; 2) harassment and hostile work environment; 3) retaliation; and 4) discriminatory compensation. (( See Pl.'s Br. at 12). Defendant moves for summary judgment as a matter of law on all four of Plaintiff s causes of action. The Court will address each claim separately below.
A. Demotion
Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), makes it unlawful for an employer "to fail or refuse to hire . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, . . . or national origin." 42 U.S.C. § 2000e-2(a)(1). The Court evaluates discrimination claims that rely on circumstantial evidence using the burden-shifting approach from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). West v. Nabors Drilling USA, Inc., 330 F.3d 379, 383 (5th Cir. 2003); Long. v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The Supreme Court developed this approach "to deal with cases in which discrimination can be proved only by circumstantial evidence." Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000)).
The plaintiff is first required to establish a prima facie case of discrimination by showing 1) that she was a member of a protected class, 2) that she was qualified for the position she held prior to her demotion, 3) that she was demoted despite her qualifications, and 4) that after the demotion, the job remained open, and applications were accepted. See id. If the plaintiff meets this burden, then the burden shifts to the defendant to articulate a "legitimate, non-discriminatory reason for the adverse employment action." Id. "If the defendant can articulate a reason that, if believed would support a finding that the action was nondiscriminatory, the mandatory inference of discrimination created by the plaintiff's prima facie case drops out of the picture and the factfinder must decide the ultimate question: whether the plaintiff has proved intentional discrimination." Id. (internal quotations omitted). In proving the ultimate question, the plaintiff can rely on the evidence that the employer's reasons were a pretext for unlawful discrimination, and the factfinder can consider the evidence that established plaintiff's prima facie case and any inferences properly drawn therefrom. See id.
In the instant case, Defendant argues that Plaintiff cannot establish a prima facie case because her reclassification was not a demotion and thus was not an ultimate employment decision as required by Title VII. (Def.'s Br. at 4). This argument will be addressed below. See Section III. C.
Defendant also argues that even if Plaintiff can establish that her reclassification was an ultimate employment decision, she cannot show that Defendant's reason for reclassifying her is a pretext for discrimination. (Def.'s Br. at 4). Defendant has articulated a legitimate non-discriminatory reason for the Plaintiff's reclassification; Defendant has asserted that the Plaintiff was not performing at the Tier 3 level, that she was having difficulty in completing her projects on time and without mistakes, and that she was not achieving some of her goals. The Plaintiff argues that this is pretext, but offers no evidence that it is pretext for discrimination because of Plaintiff s race, national origin, or religion. The evidence creating an inference of racial or religious animus are comments from co-workers and supervisors who did not participate in the reclassification decision. Also, in two cases, the comments were made years before the alleged discrimination. Because the Court finds that Plaintiff has not met her burden of showing that the reason offered by Defendant is pretext for racial, national origin, or religious discrimination, the Court GRANTS summary judgment on Plaintiff's demotion claim.
B. Hostile Work Environment
Title VII protects against race or religious discrimination that creates a hostile work environment. 42 U.S.C. § 2000e-2. To establish a hostile work environment claim, the plaintiff must prove five elements: 1) that she is a member of a protected group; 2) that she was subject to unwelcome harassment; 3) that the harassment was based on her race, national origin, or religion; 4) that the harassment affected a term, condition, or privilege of employment; and 5) that her employer knew or should have known of the harassment and failed to take prompt remedial action. See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
In her complaint, Plaintiff brings harassment and hostile work environment as two separate claims. However, in her Response brief, Plaintiff treats them as one claim. Therefore, the Court proceeds as though Plaintiff is now only bringing a hostile work environment claim. The Court will evaluate this claim under the standard for Title VH hostile work environment, as the parties do in their briefing. See Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002) (using the same elements to establish the plaintiffs § 1981 racial harassment claim as used in Title VU hostile work environment claims).
In the instant case, the Defendant first argues that Plaintiff's allegations of harassment are time barred under the 300-day statute of limitations in Title VH and the two year statute of limitation for § 1981 claims. ( See Def.'s Br. at 6). Defendant is correct that Title VII imposes a time frame for bringing claims. Title VII requires a complaint be filed either within 180 days of the unlawful employment act or, if a complaint is filed with a state agency, as in the instant case, within 300 days of the unlawful employment act. 42 U.S.C. § 2000e-5(e)(1). Discrete discriminatory acts will not be actionable if they fall outside the time limit, "even when they are related to acts alleged in timely filed charges." Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). A discrete act "occurs" on the day that it happens. Id. at 110. Discrete discriminatory acts may be used, regardless of timing, "as background evidence in support of a timely filed claim." Id.
Defendant defines Plaintiff's harassment claims as Don Little's statement, Mike Sullivan's statement, Kim Murphy s statement, and Mary Thompson's statement, all of which occurred between 1997 and April or May 2000. ( See Def.'s Br. at 6).
Plaintiff claims the continuing violations doctrine should apply. The continuing violations doctrine allows a plaintiff to complain of otherwise time-barred acts if she can show that the discrimination manifested itself over time, rather than in a series of discrete acts. Frank v. Xerox Corp., Nos. 02-20416, 02-20516, 2003 WL 22233805, at *4 (5th Cir. Sept. 30, 2003). However, discrete acts "are not entitled to the shelter of the continuing violations doctrine." Id. This argument is inapposite as the doctrine is not needed for a hostile environment claim, however.
The law for hostile environment claims is different from the law for claims regarding discrete acts. In Morgan, the Supreme Court explained that because of the nature of a hostile environment claim, it cannot be said to occur on any particular day. Morgan, 536 U.S. at 115. "It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. . . . [Hostile environment] claims are based on the cumulative effect of individual acts." Id. Therefore, some of the component acts that comprise the hostile environment claim will fall outside of the statutory period. See id. at 117. The plaintiff need only file within 300 days of any one act that is a part of the hostile environment claim. Id.
Defendant also argues that Plaintiff's hostile environment claim fails because she cannot prove the third, fourth, and fifth elements of a hostile environment claim. ( See Def.'s Br. at 7). In regard to the third element, Defendant argues that Plaintiff has not shown a causal nexus that proves the conduct was a result of Plaintiff s race, national origin, or religion. The Court finds that Plaintiff has met the third element. The comments Plaintiff complains of are directly related to Plaintiff's race, national origin, or religion and create a fact issue as to whether the acts on which Plaintiff relies to claim hostile environment were motivated by discrimination.
Defendant argues that Plaintiff cannot meet the fourth element of a hostile environment claim because the conduct of which she complains was not severe or pervasive enough to alter a term or condition of her employment. ( See Def.'s Br. at 8). The Fifth Circuit has clarified the fourth element by explaining the harassment must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). The Court must consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (quoting Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000)).
The Court finds that the evidence meets the severe and pervasive requirement of the fourth element. Specifically, Plaintiff claims and offers evidence to support her claim that the conduct was so severe that she had to take a leave of absence to be treated for work-related stress. ( See Pl.'s Br. at 9). Plaintiff also offers many acts that create a fact issue as to whether the conduct was severe enough to state a claim for hostile environment. Together, these events are sufficient to state a prima facie case and preclude summary judgment.
Finally, the Defendant argues that Plaintiff did not report the conduct to management so that Defendant could take prompt remedial action. The Court finds that there is evidence creating a fact issue as to whether Plaintiff reported the hostile environment to Defendant. The Court DENIES summary judgment on Plaintiff's hostile environment claim.
C. Retaliation
Title VII prohibits retaliation by employers against employees who have opposed unlawful employment practices or who have made a charge or participated in any manner in an investigation, proceeding, hearing, or litigation under the acts. 42 U.S.C. § 2000e-3(a). Where a Plaintiff seeks to establish a retaliation claim using circumstantial evidence, the Court evaluates the retaliation claim using the burden-shifting approach. Ackel v. National Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003). The Plaintiff must first establish a prima facie case of unlawful retaliation by showing 1) that she engaged in activity protected by Title VII; 2) that she suffered an adverse employment action; and 3) that a causal connection exists between the protected activity and the adverse employment action. Id. The rest of the test is the same as for discrimination claims. See supra, Section III A. The defendant must articulate a legitimate, non-discriminatory reason for its action. Once the defendant articulates its reason, the presumption created by the plaintiff's prima facie case drops away, and the ultimate question becomes whether the action was a pretext for illegal retaliation.
In the instant case, Defendant argues that none of the actions Plaintiff complains of are ultimate employment decisions actionable pursuant to Title VII (Def.'s Br. at 10). Plaintiff identifies three actions she believes are the result of retaliation for her complaint of discrimination to Bill Christie: 1) her demotion, 2) her decreased performance evaluations, and 3) her "salary below minimum." (PL's Br. at 25-30).
Defendant is correct that Title VII applies only to ultimate employment decisions. See Dollis v. Ruben, 77 F.3d 777, 781-782 (5th Cir. 1995) ("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."). A reclassification is not a demotion and, thus, not an ultimate employment decision if the plaintiff's "pay, benefits, and level of responsibility remain the same." Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999). See also Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999) (asserting that a transfer is equivalent to a demotion "if the new position proves objectively worse — such as being less prestigious or less interesting or providing less room for advancement").
In the instant case, Defendant argues that Plaintiffs pay and level of responsibility were not reduced and thus she was not demoted. ( See Def.'s App. at 32, 55). Plaintiff argues that she did experience a significant change in her level of responsibility and offers evidence to support this claim. ( See Pl's App. at 29). The Court finds that there is a genuine issue of material fact about whether Plaintiff's reclassification involved a change in responsibilities such that a rational trier of fact could find it was a demotion.
Defendant also argues that Plaintiff has not offered any evidence that her reclassification was because of her complaints to management. (Pl's Reply at 10). The Court finds that Plaintiff has offered sufficient evidence to create a fact issue as to whether her reclassification was due to her complaints to management. Therefore, summary judgment on Plaintiff's retaliation claim for demotion is not appropriate. The Court DENIES summary judgment on Plaintiff's retaliation claim for demotion.
Defendant argues that decreased performance evaluations are not ultimate employment decisions as required by Title VII (Def.'s Br. at 10). Plaintiff offers evidence that performance evaluations determine the amount of merit increases in an employee's compensation. (Pl's App. a 80). Under current Fifth Circuit doctrine, a change in compensation or denial of a pay raise may be an ultimate employment decision. See Fierros v. Texas Dept. of Health, 274 F.3d 187, 193-94 (5th Cir. 2001) (holding that in certain situations, denial of a pay increase may constitute an ultimate employment decision). The Court finds that there is a fact issue as to whether Plaintiffs poor performance evaluations are actually compensation decisions, so as to make them ultimate employment decisions and actionable pursuant to Title VII.
The deposition transcript of Drew Ann Smith reads:
Q: Is there any consideration given to management in determining what type of merit increase should be awarded, or is it completely based on the grid?
A: As far as I know, it's completely based on grade or rating.
(Pl.'s App. at 80).
In addition to asserting that Plaintiff's claim for retaliation fails because her poor performance evaluations do not constitute an ultimate employment decision, the Defendant also argues that the claim fails because Plaintiff does not offer any evidence that her poor performance evaluations were because of her complaints of discrimination. ( See Def.'s Br. at 11). The Court finds that there are fact issues as to whether Plaintiff's poor performance evaluations were because of her complaints of discrimination. The Court DENIES summary judgment on Plaintiff's retaliation in her performance evaluation claim.
D. Discriminatory Compensation
Defendant argues that Plaintiff's discriminatory compensation claim must fail because Plaintiff has offered no evidence that her salary is less than that of a non-minority for work requiring substantially similar responsibilities. (Def.'s Br. at 20). Plaintiff does not address this claim separately, but rather includes it in her discussion of retaliation. (Pl.'s Br. at 30). Regardless of whether Plaintiff intends to state this as part of her retaliation claim, or as a separate claim, the Court finds that summary judgment is appropriate.
Plaintiff also does not stipulate to the dismissal of her discriminatory compensation claim. See Pl's Br. at 12.n. 2.
To establish a prima facie case of discriminatory compensation pursuant to Title VII, Plaintiff must present evidence that she was paid less than a non-minority for performing substantially the same work. See Haggarty v. Boston Chicken, No. 3:96-CV-2196-G, 1997 WL 810018, (N.D.Tex Dec. 18, 1997) (citing Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1074 (5th Cir. 1981)). In the instant case, Plaintiff has offered no evidence that she was paid less than any of her co-workers. ( See Pl's Br. at 30-31). Plaintiff merely asserts that she was paid "less than the minimum" for her job grade but offers no evidence on this point. ( See id.). Defendant, in contrast, offers substantial evidence that Plaintiff was paid more than co-workers who had superior performance ratings. ( See Def.'s App. at 381, 375, 372). The Court GRANTS summary judgment on Plaintiff's discriminatory compensation claim.
IV. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's demotion and discriminatory compensation claims and DENIED as to Plaintiff's hostile environment and retaliation claims.
SO ORDERED.