Opinion
Civil Action No. 3:03-CV-0071-N.
July 26, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant TXI Operations, L.P.'s ("TXI") Motion for Summary Judgment, filed February 17, 2004. TXI argues that summary judgment is appropriate because Plaintiff Sterling Conley ("Conley") is unable to establish a prima facie case of discrimination, all allegedly wrongful acts can be attributed to legitimate non-discriminatory rationales, and Conley has failed to present evidence of pretext. Because none of Conley's allegations rise to the level of an "adverse employment action" under Fifth Circuit precedent, Conley fails to raise a prima facie case of discrimination. Accordingly, Defendant's motion is granted.
I. BACKGROUND
Defendant TXI is a supplier of cement, steel, concrete and aggregates. On or about April 14, 2000, TXI hired Plaintiff Sterling Conley as a driver to deliver loads of concrete from its Denton, Texas facility to TXI customers in north Texas. Conley, like TXI's other drivers, was assigned a cement truck capable of hauling ten yards of concrete. Conley drove the same 1998 model truck until he ceased driving due to injury in January 2002. Like all TXI drivers, Conley was eligible for incentive bonuses, determined by the average yards of concrete delivered per hour during each pay period. According to the undisputed evidence, deliveries are assigned by a dispatcher who receives customer orders, enters them into a computer, and assigns them to an available truck — usually in the order by which drivers indicate their availability. In January of 2002, Conley was injured on the job. Since then, he has been assigned to "light duty."
The Court will follow industry usage in referring to cubic yards as "yards."
The bonus is calculated by taking the individual's average yards per hour for that week, applying that amount to the Production Incentive Table, and adding the corresponding hourly rate to the employee's regular base hourly earnings. If a driver averages at least 3.5 yards per hour, he qualifies for an hourly bonus for that pay period.
Conley filed the instant lawsuit on January 10, 2003, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964. In particular, Conley claims that: (1) TXI manipulated the delivery assignment order to give white drivers more favorable concrete loads than black drivers such as Conley, thus assuring that he received lower incentive pay; (2) TXI required Conley to perform menial tasks while on light duty; (3) TXI assigned Conley an older truck than certain white drivers; (4) TXI failed to maintain Conley's truck as well as those assigned to white drivers, once giving Conley used tires when certain white drivers received new tires; and (5) Conley's supervisor, Tommy Houser ("Houser") once called him "boy" and stated in 1990 that "Mexicans don't count."
II. NO "ADVERSE EMPLOYMENT ACTION" HAS BEEN ALLEGED A. Summary Judgment Standard
Summary judgment is appropriate under Rule 56 when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits presented, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must demonstrate the absence of any genuine issue of material fact, Celotex, 477 U.S. at 322-23, and the Court construes all evidence in favor of the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). 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." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 323).B. The McDonnell Douglas Framework
A claim for discrimination may be proved by direct evidence or by following the "pretext method" of indirect proof set forth in McDonnell Douglas Corp. v. Green. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) ( overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91 (2003)). "Direct evidence" in the employment discrimination context is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Id. at 1217 (citing Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993)). Direct evidence does not include "`stray remarks in the workplace,' `statements by nondecisionmakers,' or `statements by decisionmakers unrelated to the decisional process itself.'" Nouanesengsy v. City of Arlington, Tex., No. 4:01-CV-1009-Y, 2003 WL 21448596, at *2 (N.D. Tex. Mar. 12, 2003) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring)); see also Byrom v. Accenture, Ltd., No. 3:02-CV-0124-N; 2003 WL 22255669, at *3 (N.D. Tex. Sept. 29, 2003) ("statements which merely suggest discriminatory motive are not sufficient to constitute direct evidence of discrimination and avoid the burden-shifting framework of McDonnell Douglas"). Assuming, as this Court must, that Houser referred to Conley as "boy" on one occasion, this stray remark simply does not constitute direct evidence of discrimination. Houser's comment is not alleged to be related to a decisional process or discriminatory act. Taylor v. United Parcel Serv. of Am., Inc., No. 3:02-CV-2536-G, 2003 WL 23119145, at *4, *6 (N.D. Tex. Dec. 31, 2003) (applying McDonnell Douglas test despite plaintiff's allegation that use of the term "boy" constitutes direct evidence of discrimination).
Houser's alleged comment in 1990 regarding Mexicans is likewise a stray remark and not direct evidence of discrimination. Moreover, any claim directly based on that remark would be time-barred. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) ("A discrete retaliatory or discriminatory act `occurred' on the day that it `happened.' A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it").
Lacking direct evidence of discrimination, the Court analyzes employment discrimination claims, including allegations of race-based discrimination, under the three-step, burden-shifting framework established in McDonnell Douglas. Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). As the Fifth Circuit explained in Medina, the McDonnell Douglas test requires the following steps:
First, the employee must raise a genuine issue of material fact as to each element of his prima facie case. Then, the employer must articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, the employee must raise a genuine issue of material fact as to whether the employer's proffered reason was merely a pretext for discrimination.Id. (citing Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)).
C. Conley Does Not Establish a Prima Facie Case of Discrimination
In order to establish a prima facie case of race-based discrimination under Title VII, a plaintiff must show that (1) he belongs to the protected class, (2) he was qualified for his position, (3) he suffered an "adverse employment action," and (4) others similarly situated were treated more favorably. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (citing Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)). The Fifth Circuit has cautioned that, "to establish a prima facie case, a plaintiff need only make a very minimal showing." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("the burden of establishing a prima facie case of disparate treatment is not onerous.").
However, "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." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating.'" Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (citations omitted). The Fifth Circuit has explained that without such a restrictive definition of adverse employment action, "[t]he Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial." Burger v. Cent. Apartment Mgmt., 168 F.3d 875, 879 (5th Cir. 1999) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)).
In the instant matter, Conley alleges five discriminatory acts by TXI: (1) being assigned "menial tasks" after his on-the-job injury; (2) improper maintenance of his truck; (3) receipt of an inferior truck; (4) placement of used tires on his truck; and (5) inferior load assignments, which resulted in lower bonuses. Conley does not claim that any of these actions impeded his ability to perform the functions of his job. The Fifth Circuit has consistently and unambiguously rejected attempts to expand the definition of "adverse employment action" to include claims regarding working conditions, such as the alleged acts of TXI regarding Conley's vehicle and work assignments. See Benningfield v. City of Houston, 157 F.3d 369, 376-77 (5th Cir. 1998). Conley concedes as much. Plaintiff's Response and Brief to Defendant's Motion for Summary Judgment, dated March 5, 2004, at 7 n. 10. Conley's claims of discrimination regarding "light duty" tasks, truck assignment, maintenance, and tire replacement do not constitute "ultimate employment actions" under Fifth Circuit precedent. Accordingly, Conley has failed to raise a prima facie case concerning those claims, and summary judgment is appropriate.
TXI further moves for summary judgment on Conley's claims regarding unfavorable concrete loads, arguing that: (1) the assignment of loads was not manipulated; (2) because of the manner in which incentive pay is calculated and the numerous factors that affect "average yards per hour," it is impossible to isolate a favorable from an unfavorable load; (3) there is no evidence establishing that any improperly assigned loads would have qualified Conley for incentive bonuses, or, alternatively, provided any benefit to the drivers who received such "favorable" assignments; (4) Conley is unable to identify any specific assignment that was unfavorable; and (5) there are legitimate, innocuous reasons that loads would appear to be assigned out of order. Although such arguments may well constitute legitimate, non-discriminatory rationales tending to negate pretext in the McDonnell Douglas framework, such an analysis is premature. Under Fifth Circuit law, unfavorable work assignments — even those that eventually lead to lower bonus or overtime pay — do not themselves constitute adverse employment actions to satisfy a plaintiff's prima facie case. See, e.g., Benningfield, 157 F.3d at 376-77 (holding that nonpayment of overtime was administrative matter that did not constitute employment action).
For example, in Wayne v. Dallas Morning News, an employee sued her employer for racial discrimination in violation of Title VII alleging, in part, that she was improperly assigned "low revenue generating accounts which do not allow for substantive bonus opportunities enjoyed by white sales representatives assigned to more lucrative accounts." Wayne v. Dallas Morning News, 78 F.Supp.2d 571, 584 (N.D. Tex. 1999). There, the court held that no "adverse employment action" was alleged, since the plaintiff presented only conclusory allegations that the assignment of client accounts resulted in lower pay. Id. In so holding, the court explained that:
The actions of the Morning News in assigning, or not assigning, certain accounts to Wayne are not, standing alone, ultimate employment decisions within the purview of Title VII. To the contrary, the court holds that account assignments are administrative decisions not properly characterized as "ultimate employment decisions." Therefore, Wayne's allegations and evidence showing that she was not assigned particular accounts will not, without more, permit her to survive summary judgment.Id. (citations omitted).
Similarly, in Kahn v. Department of Treasury, the Eastern District of Louisiana considered a Title VII claim that an IRS agent was discriminated against on the basis of age, in part, by being removed from a "high impact" work assignment and by receiving a lower bonus than other employees. Kahn v. Dep't of Treasury, No. Civ. A. 98-2652, 1999 WL 1220765, at *1 (E.D. La. Dec. 20, 1999). There, the court granted the defendant's motion to dismiss, holding that:
The actions of which plaintiff complains of — unfair performance evaluations, COP leave delay, reassignment and additional work assignments; a (possibly public) employee reprimand, negative feedback on a project, lack of specific performance standards and a lower bonus than other employees — are "interlocutory or mediate decisions having no immediate effect upon employment conditions," which do not amount to "ultimate employment decisions" proscribed by Title VII under Dollis.Id. at *2 (citations omitted).
Like the plaintiffs in Wayne and Kahn, Conley presents claims that do not rise to the level of "adverse employment actions" for the purpose of establishing a prima facie case of discrimination. Here, Conley effectively requests the Court to hold that every work assignment that might eventually cause him to receive a lower incentive bonus than a white employee constitutes an ultimate employment decision and the basis for a prima facie case of discrimination. In sum, the Court is asked to deem an ultimate employment decision the dispatcher's allegedly improper allocation of work assignments, wholly ignoring the long chain of events that must follow for the dispatcher's determination to impact Conley's income. Of course, such a holding would elevate individual administrative decisions into evidence of discrimination whenever they are detrimental to (or perceived as being detrimental to) employees covered under Title VII. Such a holding would greatly expand the reach of federal discrimination law, and would ignore the long line of cases establishing that individual work assignments do not "rise above having mere tangential effect on a possible future ultimate employment decision." Mattern, 104 F.3d at 708. The Court holds that Conley's incentive claims do not address ultimate employment decisions, and accordingly, Conley has not established a prima facie case of discrimination.
For Conley to be correct about the effect of the assignments on his income, the assignments must have led to smaller load deliveries, ensuring in a lower "yard per hour" average, that, when applied to the Production Incentive Table, resulted in a smaller hourly rate being added to Conley's base earnings than that of similarly situated employees.
CONCLUSION
Plaintiff Sterling Conley has failed to raise a prima facie case of racial discrimination because no "ultimate employment decisions" have been alleged. Accordingly, Defendant is entitled to judgment as a matter of law, and the motion for summary judgment is granted in its entirety.