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granting summary judgment on plaintiff's race discrimination claim under Title VII and La. R.S. 23:301 et seq. after finding that defendants had proven Faragher/Ellerth defense
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Civil Action No. 01-466, Section "D" (2)
June 26, 2002
ORDER AND REASONS
Plaintiff, Deon Daniels, brings this action against his former employer, Home Depot U.S.A., Inc., pursuant to Title VII, 42 U.S.C. § 2000e et seq., the Louisiana Employment Discrimination Law, La. Rev. Stat. § 23:301 et seq., and the Louisiana Commission on Human Rights Act. La. Rev. Stat. § 51:2231 et seq. Daniels alleges that Home Depot discriminated against him on the basis of his race by condoning a racially hostile work environment and by failing to offer him a different job, and that Home Depot retaliated against him for filing a complaint with the Equal Employment Opportunity Commission ("EEOC") by threatening to terminate his employment in April 2000, by terminating his employment in October 2001 and by appealing his unemployment compensation award in November 2001. Complaint, Record Doc. No. 1; Amended Complaint, Record Doc. No. 20. This matter was referred to the undersigned magistrate judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon the written consent of all parties. Record Doc. No. 12.
Defendant filed a motion for summary judgment, supported by excerpts from plaintiffs deposition and selected exhibits that were attached to the deposition, and two declarations under penalty of perjury. Record Doc. No. 25. Home Depot argues that it is entitled to summary judgment either because plaintiff cannot make out a prima facie case of racial harassment, race discrimination or retaliation, or because Daniels cannot rebut Home Depot's legitimate, nondiscriminatory reasons for its actions.
Daniels filed a timely memorandum in opposition to the motion. His opposition is supported by several affidavits; exhibits from his deposition; two unverified exhibits that appear to be copies of written Home Depot policies; and an unverified copy of an administrative opinion by the Louisiana Department of Labor concerning plaintiff's claim for unemployment benefits. Record Doc. No. 27. Although these exhibits are not sworn or certified as required by Fed.R.Civ.P. 56(e), I have considered them in connection with plaintiffs opposition because plaintiff testified about the Home Depot policies in his deposition and because the summary judgment result would not change, even if I ordered plaintiff to have the exhibits properly verified.
Having considered the complaint, as amended, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED.
I. FACTUAL BACKGROUND
The following facts are established by the summary judgment evidence and are undisputed for purposes of this motion, except as noted. Daniels is an African-American man. He was employed by Home Depot as a truck driver at its Gretna, Louisiana store from March 18, 1998 through October 8, 2001.
The store managers during plaintiffs employment were Tristan Bullock, who hired Daniels, followed by Cane Womack, both of whom are white. The assistant store managers responsible for supervising the truck drivers during plaintiff's tenure were David Perkins, who is African-American, followed by Karen Schillace, who is white. The drivers were also supervised by an African-American, non-management supervisor, Reggie Allen.
Three will call/delivery coordinators assisted Allen: Frances Matthews (AfricanAmerican), George Sartor (white) and Jason Andre (white). The parties dispute whether the will call/delivery coordinators supervised the truck drivers. According to Assistant Store Manager Schillace, the will call/delivery coordinators had no supervisory authority over the drivers. Defendant's Exh. B, Schillace declaration, § 3. Plaintiff has presented contrary evidence showing that the coordinators supervised the drivers by giving them orders and rating them on their performance reviews. Plaintiff's Exh. 12, Matthews affidavit, ¶¶ 2, 3, 4; Plaintiff's Exh. 13, Andre affidavit, ¶¶ 2, 7; Plaintiff's Exh. 3, performance review dated 3/27/00, signed by Sartor as "supervisor;" Plaintiff's Exhs. 7 and 9, performance reviews dated 9/3/01, 3/14/01 and 10/5/00, signed by Matthews as "supervisor." For purposes of the pending motion, the court will assume in favor of Daniels, the party opposing summary judgment, that the will call/delivery coordinators supervised him.
Around December 1999 and on several occasions, Sartor, one of the will call/delivery coordinators, used the word "nigger" to and around Daniels and other African-Americans. Daniels told Sartor that he found the word offensive and asked him not to use it, but Sartor continued to use the word. Although plaintiff knew that Home Depot had an anti-harassment policy and reporting procedures, he did not advise anyone in the chain of supervisory command above Sartor of the derogatory remarks.
On March 29, 2000, plaintiff filed his first charge of discrimination with the EEOC concerning Sartor's racially derogatory remarks. After Home Depot's upper management received notice of the charge, defendant immediately investigated the charge and Sartor's employment was terminated on April 14, 2000, within weeks of Daniels's complaint. (In their respective memoranda, both plaintiff and defendant sometimes refer to Sartor's termination date as 2001, rather than 2000. However, Daniels clearly testified that Sartor was fired about two weeks after plaintiff filed his EEOC charge, which was undisputedly in 2000.) No racially derogatory remarks were made to or around plaintiff after Sartor was discharged.
Daniels's first EEOC charge also alleged that Home Depot racially discriminated against him on February 18, 2000 when it failed to offer him the position of primary driver, which would have changed his schedule from a rotating schedule to a regular schedule of 8:00 a.m. to 5:00 p.m. on weekdays. The position did not involve a pay increase, supervisory authority or additional benefits. However, the schedule change would have allowed plaintiff to take a second job at night and he advised Schillace that he was interested in the position.
Defendant offered the job to plaintiffs two fellow drivers, both of whom are white. The first offeree declined the position, while the second driver, John Basco, accepted it. Defendant's Exh. A, Daniels's deposition, Exh. 2 to deposition, Charge of Discrimination dated 3/29/00; Plaintiffs Exh. 1, Daniels's Affidavit accompanying Charge of Discrimination dated 3/29/00; Defendant's Exh. B, Schillace declaration, § 4. Daniels believes he was better qualified for the job than Basco because he had trained Basco, who came to work at Home Depot one month after Daniels, and because Basco allegedly had been involved in several accidents, which had damaged customers' property.
Schillace states in her declaration that she selected Basco for the primary driver position upon the recommendation of Allen, who supervised the truck drivers on a daily basis. Schillace states that she and Allen reviewed the drivers' performance evaluations, work efficiency and customer service and time management skills. She avers that she accepted Allen's opinion that Basco was a good driver, provided excellent customer service and worked in a timely and efficient manner. Defendant's Exh. B, Schillace declaration, ¶¶ 5, 8. Daniels testified that Allen told him he selected Basco because Basco "worked at a smoother pace," was a "better driver," a "company man" and a "team player," and was more capable of handling the position. Defendant's Exh. A, plaintiff's deposition at 51, 94.
Schillace says she also accepted Allen's opinion that Daniels was not the best candidate for the position because he did not work in a timely and efficient manner. At the time the position was offered, Basco had received an overall rating of three (solid performance) on his most recent performance evaluation, while Daniels had received a rating of two (improvement needed). Defendant's Exh. B, Schillace declaration, ¶¶ 6, 7. Plaintiff points out that this low rating had been given to him by Sartor, who allegedly was racially biased against him.
On May 10, 2000, plaintiff filed a second charge with the EEOC, alleging that Home Depot had retaliated against him for filing his first charge. The alleged retaliation occurred when Daniels received a negative performance evaluation in April 2000 from Sartor (apparently prepared before Sartor was fired), and when Store Manager Bullock told Daniels on April 25, 2000 that he would be fired if his work performance did not improve.
Plaintiff was not fired until October 8, 2001. Home Depot's stated reason for terminating his employment was that Daniels had violated company policy on October 2, 2001, when he and Andre left a load of valuable merchandise at a customer's house although the customer was not at home to receive the merchandise. On that date, Daniels, in accordance with Home Depot's policy when a customer is not at home, had called Steve Jefferson, the assistant manager on duty. Jefferson instructed him not to leave the merchandise. Andre, who was with Daniels, then called Jefferson back and told him that the customer had left a note telling them to leave the merchandise in the back yard, and that Daniels had called the customer, who had orally confirmed the written instruction. Andre told Daniels that Jefferson had approved the delivery. Daniels followed Andre's instructions to leave the merchandise.
The customer later complained that he had never received the merchandise, and Home Depot had to refund the $8,000 purchase price. Both Daniels and Andre, a white will call/delivery coordinator, were fired over the incident by Home Depot's District Manager, Brent Nelson, and Store Manager Womack. Defendant's Exh. C, Nelson declaration. Plaintiff has no reason to believe that either Nelson or Womack was aware that he had filed charges with the EEOC some 17 to 18 months earlier.
When Daniels was awarded unemployment benefits, Home Depot filed an appeal on November 20, 2001. Plaintiff's Exh. 11, Decision of Administrative Law Judge for the State of Louisiana. Plaintiff contends that Home Depot's appeal constituted retaliation.
II. ANALYSIS
A. Summary Judgment Standards
Summary judgment is appropriate 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." Fed.R.Civ.P. 56(c). 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 it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T)here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Govt Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; the plaintiff [can]not rest on his allegations . . . to get to a jury without any significant probative evidence tending to support the complaint." Id. at 713 (quoting Anderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not however in the absence of an roof assume that the non-moving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; 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." Id. (quotation omitted) (emphasis in original).
B. The Evidentiary Framework Under Title VII and Louisiana Law
Home Depot argues that Daniels cannot make out a prima facie case of hostile environment discrimination, race discrimination or retaliation or, alternatively, that plaintiff cannot rebut defendant's legitimate, nondiscriminatory reasons for its actions.
In an employment discrimination case under both Title VII and Louisiana law, plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Courts have continually turned to federal employment discrimination law, including Title VII and the well-developed jurisprudence arising thereunder, for interpretation of Louisiana's anti-discrimination statute. Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998) (citing Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir. 1990); Plummer v. Marriott Corp., 654 So.2d 843, 848 (La.App. 4th Cir. 1995)); accord Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989).
First, to establish a prima facie case of race discrimination, plaintiff must prove that (1) he was a member of a protected class, (2) he was qualified for the position, (3) he was rejected for the position or suffered other adverse employment action, and (4) either that the employer continued to seek applicants with the plaintiff's qualifications, that the plaintiff was replaced by an individual of a different race or sex, or that his employer treated similarly situated individuals of a different race or sex more favorably than it treated him. Id. Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997); Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1179 (5th Cir. 1990); Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987); Martinez v. El Paso County, 710 F.2d 1102, 1104 (5th Cir. 1983).
Second, plaintiff can prove a prima facie case of a racially hostile work environment as follows.
A prima facie case of racial harassment alleging hostile work environment normally consists of five elements: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term[,] condition or privilege of employment; [and] (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. For harassment to affect a term, condition, or privilege of employment it must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.
Celestine v. Petroleos de Venzuela SA, 266 F.3d 343, 353 (5th Cir. 2001) (citing Watts v. Kroger Co., 170 F.3d 505, 509-10 (5th Cir. 1999); Jones v. Flagship Int'l, 793 F.2d 714, 719-720 (5th Cir. 1986)) (quotations omitted).
All five prongs of this test apply if the harassment has been perpetrated by a coworker, rather than a supervisor. Id. Home Depot argues that Sartor was Daniels's coworker. However, as noted above, Daniels contends that Sartor was his supervisor, and has supplied record evidence to support that interpretation. Considering this evidence in the light most favorable to plaintiff, the non-moving party, the court will assume for purposes of this motion that Sartor was plaintiff's supervisor. Therefore, as the Fifth Circuit has explained,
this well-established five-part test has recently undergone a revision, with the Supreme Court ruling that in Title VII harassment cases, where the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim, the plaintiff employee needs to satisfy only the first four of the elements listed above. Once the plaintiff makes the four-part showing that [he has] been harassed by a supervisor, the employer is subject to vicarious liability to a victimized employee for the supervisor's conduct.
Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)) (quotation omitted) (emphasis added).
When, as in the instant case, no tangible employment action was taken in connection with the harassment, the employer may raise an affirmative defense to liability. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any [racially] harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807 (emphasis added).
See Ellerth, 524 U.S. at 761-62 (tangible employment actions "require an official act of the enterprise, a company act," such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits").
Finally, Title VII "imposes liability for unlawful retaliation where (1) the employee engaged in activity protected by Title VII, (2) the employer took adverse employment action against the employee, and (3) a causal connection exists between that protected activity and the adverse employment action." Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998); accord Thomas v. Texas Dep't of Crim. Justice, 220 F.3d 389, 393 (5th Cir. 2000); Burger v. Central Apt. Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999).
If a prima facie case is present on any of the theories above, a presumption of discrimination arises and
the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection [or other adverse action]. . . . [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination [or retaliation].
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quotation and citation omitted); accord Nichols, 138 F.3d at 566.
C. Home Depot Cannot Be Liable for Hostile Work Environment
Home Depot contends initially that Daniels cannot establish a prima facie case of hostile work environment because he cannot show that Sartor's offensive conduct was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. The court will pretermit that argument and assume without deciding that plaintiff could prove such an environment. Nonetheless, the court finds that Home Depot has proved its affirmative defense, that plaintiff has produced no evidence sufficient to establish a genuine issue of material fact as to the affirmative defense, and that Home Depot is entitled to summary judgment as a matter of law because it cannot be liable on this claim.
The first prong of the Faragher affirmative defense requires the employer to have exercised reasonable care to prevent and correct promptly any racially harassing behavior. Daniels was aware that Home Depot had an anti-harassment policy. Defendant's Exh. A, Daniels's deposition at pp. 26-27. He attached a copy of that policy to his own memorandum. Plaintiff's Exh. 4. The policy describes four "action steps" for an employee to take if he has been treated disrespectfully. The first step is to tell the disrespectful person not to continue the conduct. The second step is to "talk to your management team." The third step is to "contact any member of Management or Human Resources." The final step is to "call the Impact Line," a toll-free number. Id.
"While not required as a matter of law, the existence of an appropriate anti-harassment policy will often satisfy this first prong, because Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms." Shaw v. AutoZone, Inc., 180 F.3d 806, 811 (7th Cir. 1999) (quotations omitted) (citing Ellerth, 524 U.S. at 764; Parkins v. Civil Constr. of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998); Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999)). Home Depot's policy "allows the complainant to circumvent the supervisory chain of command. Rather than criticize, we should encourage any employer who constructs multiple mechanisms for detecting and correcting harassment." Id. (citations and quotations omitted).
The undisputed facts establish that Home Depot acted promptly to correct Sartor's racially offensive behavior once it learned of Daniels's first EEOC complaint, which was filed on March 29, 2000. Home Depot management immediately investigated and terminated Sartor's employment on April 14, 2000, only 16 days later. No further racial harassment occurred. Home Depot's written policy, its prompt remedial conduct and the lack of any recurrences satisfy the first prong of the Faragher affirmative defense. Casiano v. ATT Corp., 213 F.3d 278, 286-87 (5th Cir. 2000); Scrivner, 169 F.3d at 971; Slay v. Glickman, 137 F. Supp.2d 743, 752 (S.D. Miss. 2001).
As to the second prong of the defense, "while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Faragher, 524 U.S. at 807-08. Although Daniels took the first step of telling Sartor to stop the offensive conduct that began in December 1999, he failed to follow through on his complaint by contacting higher levels of supervisors or the Human Resources Department when Sartor did not stop. Higher-level managers did not learn of the problem until after plaintiff filed his first EEOC charge. A reasonable employee would not fail to take advantage of the opportunities offered to him by his employer to report his supervisor's misconduct to higher management. Casiano, 213 F.3d at 287; Scrivner, 169 F.3d at 971; Slay, 137 F. Supp.2d at 752. Daniels unreasonably failed to take advantage of the preventive or corrective opportunities provided by Home Depot or to avoid harm otherwise.
Accordingly, Home Depot is entitled to judgment in its favor as a matter of law on plaintiff's racial harassment claim.
D. Daniels Cannot Rebut Home Depot's Legitimate Reasons for Failing to Offer Him the Primary Driver Position
Home Depot characterizes plaintiff's race discrimination claim concerning the primary driver position as a failure to promote claim and argues that Daniels cannot succeed because the primary driver position was not a promotion. Therefore, defendant argues, its failure to offer the job to him was merely a "trivial personnel action" that did not "tend to adversely affect" plaintiff. Defendant's memorandum at p. 15 (quoting Oden v. Oktibbeha County, 246 F.3d 458, 468 (5th Cir., cert. denied, 122 S.Ct. 341, 342 (2001); Burger, 168 F.3d at 879). However, as the Fifth Circuit noted in Oden, the test for a prima facie case of discrimination does not require that the job which plaintiff sought had to have been a "promotion."
Title VII "is not limited to economic or tangible discrimination,. and it covers more than terms and conditions in the narrow contractual sense." To establish a prima facie case for discrimination under Title VII, [plaintiff] must show that, at the very least, the alleged discriminatory conduct tended to adversely affect him. At most, [plaintiff] must demonstrate that [the employer] made an ultimate employment decision. Regardless of which standard applies, [the employer's] appointment [of another candidate to an open position] was an ultimate employment decision.
Oden, 246 F.3d at 468-69 (quoting Faragher, 524 U.S. at 786) (other citations omitted).
Because Home Depot made an "ultimate employment decision" by creating the primary driver position and offering it to two white persons (although only one accepted) with Daniels's qualifications instead of to Daniels, despite Daniels's expressed interest in the position, it appears that plaintiff can make out a prima facie case of race discrimination on this claim.
Once that showing [of a prima facie case] has been made, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The burden of persuasion, however, remains at all times with the plaintiff. In order to win his disparate treatment claim, the plaintiff must then demonstrate that the reason articulated by the employer was pretextual, meaning a pretext for discrimination, per se. The plaintiff still bears the burden of showing intent on the employer's part.
Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802, 805; Burdine, 450 U.S. at 253; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-12 (1993)).
Home Depot has carried its burden to produce legitimate, nondiscriminatory reasons for its decision to give the primary driver job to Basco rather than to Daniels. Schillace stated that she and Allen reviewed the drivers' performance evaluations (on which Basco had received an overall rating of three while Daniels had received a lower rating of two), work efficiency and customer service and time management skills. She also stated that she accepted Allen's opinions that Basco was a good driver, provided excellent customer service and worked in a timely and efficient manner, and that Daniels was not the best candidate for the position because he did not work in a timely and efficient manner. Allen told plaintiff that he personally selected Basco because Basco "worked at a smoother pace," was a "better driver," a "company man" and a "team player," and was more capable of handling the position. Although Schillace is white, Allen is African-American, which bolsters Home Depot's contention that it made a race-neutral decision. Coblentz v. Glickman, No. 98-3645, 1999 WL 816266, at *7 (E.D. La. Oct. 13, 1999) (Shushan, M.J.) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996)), aff'd, 218 F.3d 743 (5th Cir. 2000).
The burden thus shifts to plaintiff to show a genuine issue of material fact that the legitimate reasons offered by defendant were not its true reasons, but were a mere pretext for discrimination. Plaintiff may do this either directly by "persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1179 (5th Cir. 1990) (quotation omitted); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000).
Daniels has not met this burden. He argues that he was better qualified for the primary driver job than Basco because Basco had one month's less seniority and a driving record with some accidents. To survive summary judgment on a claim that he was better qualified than Basco, plaintiff must provide evidence
that he was clearly better qualified than the employee selected for the position at issue. The single question for the trier of fact is whether the employer's selection of a particular applicant over the plaintiff was motivated by discrimination, and evidence of the plaintiff's superior qualification is thus probative of pretext. However, the bar is set high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person. in the exercise of impartial judgment. could have chosen the candidate selected over the plaintiff for the job in question.
Celestine, 266 F.3d at 357 (citations and quotation omitted) (emphasis added). The Fifth Circuit has explained that "disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as to virtually jump off the page and slap you in the face." Deines v. Texas Dep't of Protective Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999) (citations omitted).
Daniels's one month of seniority over Basco in February 2000, when both employees had been working as drivers for Home Depot for almost two years, and his allegations that Basco had been involved in some accidents with property damage, without more, do not establish that he was "clearly better qualified" than Basco. The Fifth Circuit has "repeatedly stated that an attempt to equate years served with qualifications . . . is unpersuasive." Nichols, 138 F.3d at 569 (citations and quotations omitted). In addition, this court will not try
the validity of an employer's good faith belief as to one employee's competence in comparison to another. . . . It is not the function of the [factfinder] to scrutinize the employer's judgment as to who is best qualified to fill the position; nor is it the [factfinder's] task to weigh the respective qualifications of the applicants. Whether the employer's decision was the correct one, or the fair one, or the best one is not a question within the [factfinder's] province to decide. The single issue for the trier of fact is whether the employer's selection of a particular applicant over the plaintiff was motivated by discrimination.
Deines, 164 F.3d at 281 (quotation and brackets omitted) (emphasis in original).
Accordingly, Home Depot is entitled to summary judgment in its favor on Daniels's race discrimination claim concerning defendant's failure to give plaintiff the primary driver position.
E. Daniels Cannot Establish a Prima Facie Case of Retaliation
Daniels cannot establish a prima facie case of retaliation in either of the three instances of which he complains. First, he alleges that Home Depot retaliated against him after he filed his first EEOC charge on March 29, 2000. The alleged retaliation occurred in April 2000 when Daniels received a negative performance evaluation and Store Manager Bullock told him that he would be fired if his performance did not improve.
Neither of these actions constitutes an adverse employment action, one of the required elements of a prima facie case of retaliation. As the Fifth Circuit has explained:
Title VII was only 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." "Ultimate employment decisions' include acts such as hiring, granting leave, discharging, promoting, and compensating."
* * * *
Thus, a retaliation claim cannot be based solely on a defendant's act of "limit[ing]" an employee "in any way which would deprive [that employee] of employment opportunities or otherwise adversely affect his status as an employee." 42 U.S.C. § 2000e-2 (a)(2). We have read [Title VII] to exclude such vague harms, and to include only ultimate employment decisions.
Burger, 168 F.3d at 878-79 (footnote omitted) (quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707, 709 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995))); see also Watts, 170 F.3d at 512 ("employment actions are not adverse where pay, benefits, and level of responsibility remain the same").
It is well established that "[n]ot every negative employment decision or event is an adverse employment action that can give rise to a discrimination or retaliation cause of action. . . ." Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 555 (5th Cir. 1997). The Fifth Circuit has held, on facts similar to those alleged by Daniels, that "the verbal threat of being fired, the reprimand . . . and being placed on final warning, do not constitute adverse employment actions because of their lack of consequence." Mattern, 104 F.3d at 707. Thus, plaintiff's complaint that he received a poor evaluation and was told he might be fired in April 2000 fails to state a prima facie case of retaliation.
As to the second alleged instance of retaliation, his firing in October 2001, Daniels has not shown a causal connection between his filing of EEOC charges in March and May 2000, and the termination of his employment on October 8, 2001, some 17 to 18 months later. When Daniels was fired, Sartor, Schillace and Bullock were no longer employed at the Gretna store. Daniels received overall performance ratings of four (highly effective) on all of his evaluations after he filed his EEOC charges. He was fired by District Manager Nelson and Store Manager Womack. Daniels has no reason to believe that either Nelson or Womack was aware that he had filed charges with the EEOC.
In light of the lengthy time lapse between the protected activity and the termination of plaintiff's employment, and the lack of any other evidence to establish a causal connection between these events, no reasonable factfinder could infer a retaliatory motive for plaintiff's termination. Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001), cert. denied, 70 U.S.L.W. 3562 (June 17, 2002); Chaney v. New Orleans Pub. Facility Mgmt., 179 F.3d 164, 169 (5th Cir. 1999); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994).
Even if plaintiff had established a prima facie case of retaliation, defendant has met its burden to proffer legitimate, nonretaliatory reasons for firing him. Home Depot fired both Daniels, who is black, and Andre, who is white, because they violated Home Depot's policy against leaving merchandise when a customer is not home. Plaintiff has offered no evidence to establish that the reason for firing him was pretextual.
Finally, Daniels's claim that Home Depot retaliated against him by appealing his unemployment compensation award on November 20, 2001 fails for the same reasons. Womack represented Home Depot in the unemployment compensation proceedings. Plaintiff's Exh. 11. Home Depot's reason for firing plaintiff was also a legitimate, nonretaliatory reason for opposing his unemployment compensation. See La. Rev. Stat. § 23:1601(2)(a) ("An individual shall be disqualified for benefits:. . . . [if] he has been discharged . . . for misconduct connected with his employment. Misconduct means . . . violation of a policy or rule adopted to insure orderly work or the safety of others.").
The Louisiana ALJ's finding that plaintiff was not disqualified for benefits by misconduct because Daniels reasonably acted on what he believed was the authority of the assistant store manager, conveyed to him by Andre, is immaterial. It is irrelevant whether Home Depot's decision may have been based on incorrect facts, so long as its decision was not motivated by discriminatory or retaliatory animus. Scales v. Slater, 181 F.3d 703, 711 (5th Cir. 1999). The Fifth Circuit has "repeatedly and emphatically stated that anti-discrimination laws are not vehicles for judicial second-guessing of business decisions." Mato, 267 F.3d at 453 (quoting Deines, 164 F.3d at 281). "Even if evidence suggests that a decision was wrong, we will not substitute our judgment . . . for the employer's business judgment." Scott v. University of Miss., 148 F.3d 493, 509-10 (5th Cir. 1998), abrogated on other grounds by Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72 (2000) (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (anti-discrimination laws "cannot protect . . . workers from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated")). No reasonable factfinder could infer that Home Depot was retaliating against Daniels when there is no evidence that Womack knew of plaintiffs prior EEOC filings, when there was a time lapse of 20 months between the protected activity and Home Depot's appeal, and when Home Depot has submitted evidence sufficient to establish legitimate, nonretaliatory reasons for firing Daniels, which Daniels has not rebutted.
Thus, Daniels has failed to establish that there are genuine issues of material fact requiring trial as to his claims that Home Depot either discriminated or retaliated against him, and defendant is entitled to summary judgment in its favor on all of plaintiff s claims as a matter of law.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED. Plaintiff must bear the costs of these proceedings. Fed.R.Civ.P. 54(d)(1).