Opinion
Civil Action No: SA-04-CA-1099-XR.
September 5, 2006
MEMORANDUM OPINION AND ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (Docket No. 47) and Plaintiff's Response to Defendant's Motion for Summary Judgment (Docket No. 50). Under Rule CV-7(e) of the Local Rules of the Western District of Texas, the Court may rule on this motion without waiting for a reply from Defendant. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment (Docket No. 47).
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Bobbi Reyes DeJesus-Harris ("Plaintiff" or "DeJesus-Harris") is an African, Asian, and Native American female. Plaintiff worked as an Assistant Manager at the Blockbuster Video Store at the corner of San Pedro and Oblate in San Antonio, Texas ("San Pedro Store"). An Assistant Manager's job responsibilities include making bank deposits, collecting cash drops, changing closed-circuit TV security tape, preventing loss or theft, and properly opening and closing the store. Plaintiff was trained to follow Blockbuster's policies and procedures and to ensure that other employees followed Blockbuster's policies and procedures. Plaintiff received Blockbuster's Zero Tolerance Theft Policy and Employee Handbook, which required employees to help prevent theft by following all Blockbuster policies and procedures. Blockbuster's Employee Handbook states that failing to secure company assets is a gross violation of Blockbuster's policies and procedures, and that gross violations are grounds for immediate termination.
Blockbuster's procedure regarding employees exiting the store at night ("Exiting Procedure") requires employees to leave the store at the same time and prohibits any employee from remaining in the store alone after the store is closed at night. The Exiting Procedure was intended to increase employee safety and to promote employee honesty.
On January 20, 2004, Plaintiff and Blockbuster Assistant Manager Rebecca Camacho boxed up DVDs to transfer from the San Pedro Store to a different location. That night, after the store closed, Plaintiff and Camacho were the only two individuals in the San Pedro Store. Camacho left the store, and Plaintiff remained in the store alone for one and a half hours. Plaintiff acknowledged that by staying in the store alone, she was violating Blockbuster's Exiting Procedure. Both Plaintiff and Camacho were terminated for this violation.
The Exiting Procedure was designed to combat the problem of product "shrink," which is loss of product due to theft. Prior to the night of January 20, 2004, the San Pedro Store had a significant problem with product "shrink," to the point where Blockbuster's Loss Prevention Manager held a conference with the employees of the San Pedro Store to talk about the "shrink" problem and to set goals to stop the continued theft of Blockbuster product from the store.
Blockbuster Store Manager Robert Shipley reported to Blockbuster District Leader Denis Perez that DVDs were missing from the boxes of DVDs that Plaintiff and Camacho had prepared for transfer out of the store the night of January 20, 2004. Blockbuster also discovered that the San Pedro Store's closed-circuit TV security tape for that night was missing. Perez met with Plaintiff and asked her whether she had stayed by herself in the San Pedro Store after closing on January 20, 2004, and Plaintiff admitted to it. After the internal investigation was completed, Perez reported to Kristin Weir, a Manager in Blockbuster's Human Resources Department, that Plaintiff had remained alone in the San Pedro Store for one and a half hours on January 20, 2004, after the store was closed, and that Camacho left Plaintiff in the store alone.
On February 24, 2004, Blockbuster terminated Plaintiff's employment for failure to secure and protect company assets and for violating Blockbuster policy. Human Resource Manager Kristin Weir, a female, made the decision to terminate Plaintiff after receiving the report from Perez because Plaintiff stayed in the store alone, after the store was closed, on a night that a box of DVDs that was being transferred out of the San Pedro Store "was short" and the security tape was missing. Weir also made the decision to terminate Camacho's employment because Camacho failed to protect Blockbuster's assets by violating Blockbuster's policy and allowing Plaintiff to stay in the store alone after the store was closed that night. Weir had not reviewed Plaintiff's personnel file when she made the decision to terminate Plaintiff, and she is still not aware of Plaintiff's race. After Plaintiff was terminated, she was not immediately replaced. On April 19, 2004, Heather Given-Parks, a female, transferred to the San Pedro Store as an Assistant Manager. Given-Parks was the first Assistant Manager employed at the San Pedro Store after Plaintiff was terminated.
On February 26, 2004, Plaintiff filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"), alleging only sex discrimination. On August 27, 2004, the EEOC sent its Dismissal and Notice of Rights ("Right to Sue Letter") to Plaintiff at the address provided by Plaintiff in her Charge. Plaintiff did not file her Complaint in this Court until December 1, 2004, in which she claimed that she was terminated because of her race and sex. Plaintiff moved to a new apartment after filing the Charge but before receiving her Right to Sue Letter; she does not recall notifying the EEOC of her new address. Plaintiff claims that she was having problems with her mail being forwarded to her new address and that the delayed forwarding of her mail caused a delay in her receipt of the Right to Sue Letter. She also claims that she made a good faith attempt to have her mail forwarded to her new address.
In her EEOC affidavit, Plaintiff alleged that the Store Manager, Robert Shipley, engaged in suspicious activity and violated company policy without suffering any adverse employment actions by Blockbuster. In particular, Plaintiff alleged that Shipley routinely worked in the San Pedro Store alone during the morning hours from 7 a.m. to 9 a.m. Plaintiff argues that Defendant's actions are discriminatory because "men in the [D]efendant's employ have committed violations that warrant termination" without being subject to adverse employment action, "yet the Plaintiff and Rebecca Camacho were terminated for a violation that is not even outlined as being a terminable offense" under Blockbuster's policies. Plaintiff alleges that Defendant "fired the two women Assistant Managers on pretextual grounds and replaced the two women Assistant Managers with less qualified males." Plaintiff believes that Blockbuster used the fact that product was missing from the San Pedro Store as a pretext for terminating Plaintiff and Camacho because of their sex. Plaintiff supports this position by noting that the product "shrink" problem at the San Pedro Store had been going on for some time without any supervisory employees being fired. Plaintiff argues that sex discrimination can be inferred from the fact that the only two female supervisory employees at the San Pedro Store were terminated after only one policy violation, but no male supervisory employees were terminated even though they might have violated Blockbuster policy or engaged in suspicious activity in the past. Plaintiff further alleges that on or about February 11, 2004, Defendant promoted a less qualified, lower-ranking male employee as acting store manager and skipped over two better-qualified females, namely DeJesus-Harris and Camacho.
Plaintiff's sole allegation in her EEOC filings was that she was wrongfully terminated on the basis of her sex. Plaintiff's first allegation of discriminatory promotion on the basis of sex was made in her Complaint. Plaintiff fails to mention anything about discriminatory promotion in her Charge, her Charge Questionnaire, or her EEOC affidavit. The Charge contains one sentence stating that she believed that she was discriminated against on the basis of her sex. The Charge Questionnaire and EEOC affidavit only discuss discriminatory termination — the terms "promoted" or "promotion" or "passed over" are never used. The EEOC pre-determination letter only referred to Plaintiff's alleged discriminatory discharge; it did not mention anything about an alleged discriminatory promotion on or about February 11, 2004. As such, any claim for discriminatory promotion is dismissed for failure to exhaust administrative remedies. Similarly, Plaintiff's claim of racial discrimination is dismissed for failure to exhaust administrative remedies, discussed infra.
Although Plaintiff filed her case on December 1, 2004, she was unable to effect service on the Defendant until August 29, 2005. Defendant attempted to dismiss the case under Fed.R.Civ.P. 12(b)(2) and 12(b)(5) for insufficiency of process and lack of personal jurisdiction; however, the Court denied this motion because it found that Plaintiff attempted in good faith to serve Defendant within the proper time period. Plaintiff is proceeding in this case pro se. DeJesus-Harris requested appointment of counsel under 42 U.S.C. § 2000(e)-5(f)(1) on April 24, 2006; however, the Court denied this motion.
II. LEGAL ANALYSIS
A. The summary judgment standard.
Defendant has moved for summary judgment. Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summaryjudgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert. denied, 523 U.S. 1073 (1998). Where a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, "it must adduce evidence to support each element of its defenses and demonstrate the lack of any genuine issue of material fact with regard thereto." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999), cert. denied, 528 U.S. 1160 (2000) (citing Exxon Corp. v. Oxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir.), cert. denied, 522 U.S. 915 (1997)).
A material fact is one that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The moving parties, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 257; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "[T]he court must review the record 'taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 525 U.S. 1067 (1999). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 255; Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5 (1990); see Christopher Vill. Ltd. P'ship v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999); Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998). The evidence is construed "in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999); accord Little, 37 F.3d at 1075 ("[w]e do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.") (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14 (1992) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2nd Cir. 1989)). The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; Wenner, 123 F.3d at 324. "In such a situation, there can be 'no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23.
It is well-established that "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). However, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent the granting of a dispositive motion. S. Christian Leadership Conference v. Supreme Court of State of La., 252 F.3d 781, 786 (5th Cir. 2001).
B. Plaintiff's Title VII Claims are not time-barred by the 90 day statute of limitations.
A civil action under Title VII must be brought within ninety days of receipt of a Right to Sue Letter from the EEOC. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); see Maddox v. Runyon, 139 F.3d 1017, 1021 (5th Cir. 1998); Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996); Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1250 (5th Cir. 1985); see 42 U.S.C. § 2000e-5(f)(1). This requirement to file a lawsuit within the ninety-day limitation period is strictly construed." Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (citing Ringgold v. National Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986); Espinoza, 754 F.2d at 1251. The filing requirements of Title VII are not jurisdictional prerequisites to bringing suit in federal court; it is more akin to a statute of limitations and is subject to the doctrines of waiver, estoppel, and equitable tolling. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151-52 (1984); Crown, Cork Seal Co., Inc. v. Parker, 462 U.S. 345, 349 n. 3 (1983); Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th Cir. 1983). Although the ninety-day filing requirement is not jurisdictional, in the absence of extenuating circumstances, it is a statutory precondition to the maintenance of any action under Title VII in federal court. See Taylor, 296 F.3d at 379; Dao, 96 F.3d at 788; Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069-70 (5th Cir. 1981); Smith v. Flagship Int'l, 609 F.Supp. 58, 61 (N.D.Tex. 1985). Like all Title VII filing requirements, the ninety-day filing period is treated as a statute of limitations for all purposes. See Espinoza, 754 F.2d at 1248 n. 1; Nilsen, 701 F.2d at 562.
Citing Martin v. Alamo Cmty. College Dist., Defendant urges the Court to presume that Plaintiff received her Right to Sue letter within three days of the EEOC's issuance of the letter. See 353 F.3d 409, 411 (5th Cir. 2003); Aportela v. Barnhart, EP-03-CA-0360-DB, 2005 U.S. Dist. LEXIS 16973, at * 35 (W.D. Tex. August 15, 2005). According to Defendant's argument, Plaintiff's complaint "must be filed ninety-three (93) days after the right-to-sue letter is mailed." Aportela at *35. On August 27, 2004, the EEOC mailed the Right to Sue Letter to Plaintiff at the address she provided in her Charge. If the Martin presumption of receipt applies, then Plaintiff was required to file her Complaint by November 29, 2004, which is ninety-three days after the EEOC issued the Right to Sue letter. Plaintiff did not file her Complaint until December 1, 2004. Dismissal of a Title VII claim is proper where Plaintiff fails to establish that the complaint was filed with the court on a timely basis. Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 740 (S.D. Tex. 2003).
Plaintiff claims that she actually received her Right to Sue Letter on September 2, 2004 because of a delay in the forwarding of her mail by the United States Postal Service. If the ninety-day statute of limitations did not start to run until September 2, 2004, then Plaintiff was required to file her complaint by December 1, 2004, which she did. Plaintiff stated in her sworn deposition that she received her Right to Sue Letter on September 2, 2004 (DeJesus-Harris Dep. 145:5-23). The question is whether the Court should rely on the Martin three-day presumption of receipt and start the running of the statute of limitations on August 30, 2004 (making the filing untimely), or whether the Court should accept Plaintiff's sworn deposition testimony and start the running of the statute of limitations on September 2, 2004 (making the filing timely).
The Martin three-day presumption of receipt applies when the date that the Right to Sue letter is actually received is unknown or disputed. In Bowers v. Potter, the Fifth Circuit stated that "when the date that the letter is actually received is unknown or is in dispute, we will, like other courts, presume that the letter was received within three to seven days after it was mailed by the OFO, unless the plaintiff, through no fault of her own, failed to receive the letter, or the plaintiff presents some other equitable reason for tolling the statute. 113 Fed. Appx. 610, 612-13, 2004 WL 2434892, at *2 (5th Cir. 2004) (emphasis in original) (citing Taylor, 296 F.3d at 379). In Taylor, the Fifth Circuit noted that "[w]hen the date on which a [R]ight-to-[S]ue [L]etter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed." 296 F.3d at 379 (emphasis added). The Taylor Court observed that even under the longer seven-day presumption of receipt, Plaintiff's Title VII claims would be time-barred. Id. Similarly, the Bowers Court observed that even under the longer seven-day presumption of receipt, Plaintiff's Title VII claims would be time-barred. 113 Fed. Appx. at 613. The Taylor Court also noted that the ninety-day statute of limitations begins to run from the date the Right to Sue Letter is received, not when it was issued. Id. Relying on Fed.R.Civ.P. 6(e), The Fifth Circuit later specified the exact length of the presumptive time period as three days. Martin, 353 F.3d at 411. If the Taylor three-to-seven day presumption of receipt applied in this case, then Plaintiff's Title VII claims would not be time-barred because she actually received the Right to Sue letter on September 2, 2004, which is six days after her Right to Sue letter was issued.
The Court is convinced that Martin simply specified the exact length of the presumptive time period — three days — that was left open in Taylor. In both Bowers and Taylor, it was unnecessary for the Fifth Circuit to specify the exact length of the presumptive time period because Plaintiffs' claims in both those cases were untimely even under the longer seven-day time period. Nevertheless, the Court refuses to apply the Martin three-day presumption of receipt in this case because the date of actual receipt is not unknown or disputed.
Case law supports the position that the date of DeJesus-Harris' actual receipt is not unknown or disputed in this case and that the Martin three-day presumption of receipt should not apply. Another federal district court in the Fifth Circuit addressed this issue in Lee v. Wal-Mart, Inc., H-05-CV-3406, 2006 WL 925122, at *1 (S.D. Tex. April 10, 2006). In that case, a Pro Se Plaintiff, Larry D. Lee ("Lee"), filed a race discrimination and retaliation suit under Title VII against Wal-Mart. Id. at * 1. Wal-Mart filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), claiming that the Martin three-day presumption of receipt applied and that Lee's Title VII claims were time-barred. Id. at *3. Lee filed two separate Charges against Wal-Mart. Id. at *1. Lee's first Right to Sue Letter (for his second Charge) was issued on July 2, 2004, and his second Right to Sue Letter (for his first Charge) was issued on March 8, 2005. Id. Lee alleged that the date he "actually received" both Right to Sue Letters was on June 27, 2005, which would make his Complaint timely. Id. Lee submitted two "Dismissal/Notice of Right to Sue" receipts with his Complaint that recited that he "acknowledged receipt" of both his letters on June 27, 2005. Id. The Lee Court responded to Wal-Mart's argument by first noting the discrepancy that existed between the strict three-day presumption of receipt in Martin and the more flexible three-to-seven day presumption of receipt in Taylor. Id. at *2. The Lee Court suggested that Martin simply specified the exact time period that was left open in Taylor Id. However, the Lee Court ultimately decided that the Martin three-day presumption of receipt did not apply.
Interestingly, the Lee Court refused to grant the motion to dismiss on the basis of the Martin presumption because that presumption only applies when the date of receipt is either "unknown or disputed," and "for purposes of this motion to dismiss, the receipt date is neither disputed [n]or unknown because the Court is required to accept as true Lee's allegation in his Original Complaint that he received copies of the Notices on June 27, 2005." 2006 WL 925122 at *3. In reaching this conclusion, the Lee Court argued that pro se pleadings are entitled to a liberal construction that includes all reasonable inferences which can be drawn from them. Id. at *3, fn. 13 (citing United States v. Pena, 122 F.3d 3, 4 (5th Cir. 1997)). Applying that logic to this case, the Court must accept as true Plaintiff's allegation that she received her Right to Sue Letter on September 2, 2004, especially in light of the fact that this alleged date of actual receipt fell within the Taylor three-to-seven day presumptive period of receipt. It is important to note that in Lee, Plaintiff's alleged date of actual receipt was several months outside the Taylor three-to-seven day presumptive period of receipt. See Id. at *1. If the Lee Complaint was not time-barred even though the alleged date of actual receipt was several months after issuance, then the DeJesus-Harris Complaint should not be time barred-because the alleged date of actual receipt was only six days after issuance. Another striking similarity between this case and Lee is that the delay in receipt of the letters by both DeJesus-Harris and Lee appears to stem from failure to report a change of address to the EEOC. See Id. at *1, fn. 10.
The Court holds that Plaintiff's claim is not barred by the ninety-day statute of limitations. The Court will accept as true Plaintiff's sworn allegation that she received her right to sue letter on September 2, 2004, which is six days after the issuance of her Right to Sue Letter. The Court's narrow holding on this issue is that the actual receipt date is not "disputed or unknown" when the pro se Plaintiff makes a sworn allegation of actual receipt within the Taylor three-to-seven day presumptive period. The Court does not adopt the extreme position that any delay, no matter how long, will be excused whenever the pro se Plaintiff makes a sworn allegation of actual receipt months or years after issuance of the letter. Since the Complaint in this case was filed timely, an analysis of the equitable tolling issue is unnecessary.
C. Plaintiff's race discrimination claim is dismissed for failure to exhaust administrative remedies, and Plaintiff's sex discrimination claim is dismissed on the merits under the appropriate summary judgment standard.
1. Title VII Claims Generally.
Plaintiff contends that she was terminated because of her race and her sex. Plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000, 142 L. Ed. 2d 422, 119 S. Ct. 509 (1998). "Direct evidence" is "evidence which if believed, proves the fact [in question] without inference or presumption." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003) (citations omitted). Plaintiff has presented no direct evidence of discrimination; therefore, she must rely on the burden-shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), to create a presumption of intentional discrimination. See Russell, 235 F.3d at 222; see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000).
To create such a presumption, Plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. Plaintiff may establish a prima facie case of discrimination for her termination by providing evidence that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, show that others similarly situated were treated more favorably. Okoye v. The University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). If she succeeds, Defendant must then articulate a legitimate, nondiscriminatory reason for its action. Id. Finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Plaintiff must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. Id. 2. Plaintiff's sex discrimination claim is dismissed on the merits because she has failed to establish a prima facie case of discrimination under the McDonnell Douglas framework.
Plaintiff has no direct evidence to support her claim of sex discrimination. Plaintiff's subjective belief that she was terminated because of her sex does not establish a material question of fact regarding Blockbuster's motives for terminating her employment. See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (5th Cir. 1995) (stating that subjective belief of sex discrimination did not create a material question of fact and affirming summary judgment on the sex discrimination claim). Since Plaintiff has no direct evidence of sex discrimination, she must establish her discrimination claim based on circumstantial evidence.
Discrimination claims based on circumstantial evidence are reviewed under the McDonnell Douglas burden-shifting framework. Bryan McKinsey Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). To carry her initial burden of establishing a prima facie case of sex discrimination, Plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for her Assistant Manager position; (3) she was subject to an adverse employment action; and (4) she was replaced by someone outside her protected class or that other similarly situated employees were treated more favorably. Bryan, 375 F.3d at 360.
Defendant does not dispute that Plaintiff was a member of a protected class, that she was qualified for her Assistant Manager position, or that she was subject to an adverse employment action because she was terminated. Therefore, Plaintiff must establish was she was replaced by someone outside her protected class or that other similarly situated employees were treated more favorably than her in order to establish her prima facie case of sex discrimination.
In her Complaint, Plaintiff alleges that Defendant "fired the two women Assistant Managers on pretextual grounds and replaced the two women Assistant Managers with less qualified males." To counter this argument, Defendant submitted a sworn Declaration by Denis Perez stating that after Plaintiff was terminated on February 24, 2004, she was not immediately replaced. (Perez Dec. at ¶ 10). Perez stated that on April 19, 2004, Heather Givin-Parks, a female, transferred to the San Pedro Store as an Assistant Manager, and she was the first Assistant Manager employed at the San Pedro Store after Plaintiff was terminated. ( Id. at ¶ 10). Plaintiff only provides her subjective belief and conclusory allegation that the decision makers at Blockbuster replaced her with a less qualified male after they terminated her employment. This allegation is completely unsubstantiated and directly contradicted by sworn testimony. Generalized testimony by an employee regarding her subjective belief is insufficient to make an issue for the jury. Todd v. Waste Management of Texas, Inc., SA-03-CV-314-XR, 2004 U.S. Dist. LEXIS 11942, at *9 (citing Marks v. St. Landry Parish Sch. Bd., 75 Fed. Appx. 233 (5th Cir. 2003)). The fact that Plaintiff, who was terminated by a female, was replaced by a female, weighs against any finding of discriminatory intent on Plaintiff's sex discrimination claim. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000); Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 3:04-CV-1879-P, 2006 U.S. Dist. LEXIS 2235, *20 (N.D. Tex. Jan 23, 2006). Therefore, Plaintiff cannot establish that she was replaced by someone outside her protected class.
Plaintiff also cannot establish that other similarly situated employees were treated more favorably than her. Plaintiff cannot identify any similarly-situated male employee who was treated more favorably than she.
In arguing that other similarly-situated employees were treated more favorably, Plaintiff compares herself to Shift Leader Tom Blackford ("Blackford") and Store Manager Robert Shipley ("Shipley"). In order to carry her burden of showing that other similarly-situated employees were treated more favorably, Plaintiff must show that (1) an employee outside of her protected class was similarly situated; and (2) this employee was treated differently under circumstances "nearly identical" to hers. Wheeler v. BL Dev. Cor., 415 F.3d 399, 406 (5th Cir. 2005). The Court finds that Plaintiff was not similarly situated to Shipley or Blackford and that Plaintiff's circumstances were not "nearly identical" to Shipley's or Blackford's.
Plaintiff, an Assistant Manager, cannot show that she was similarly situated to Store Manger Shipley or Shift Leader Blackford. When assessing whether employees are similarly situated, courts consider whether the employees were employed in the same job position, whether the employees had different job responsibilities, and whether the same supervisor was involved in the decision making. Williams v. Gonzales, 1:04-CV-342, 2005 U.S. Dist. LEXIS 38838, at *35-36 (E.D. Tex. Dec. 14, 2005); Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 608 (S.D. Tex. 2001). The undisputed facts indicate that (1) Plaintiff was not employed in the same job position as Shipley or Blackford, (2) Plaintiff had different job responsibilities than Shipley and Blackford, and (3) no evidence exists showing that Weir, the individual who decided to terminate Plaintiff, was aware of and failed to take action with respect to any alleged misconduct by Shipley and Blackford.
The positions of Store Manger, Assistant Manager, and Shift Leader at Blockbuster are different positions with different responsibilities. The Store Manager is responsible for counseling employees, managing employee turnover, developing and implementing employee performance evaluations and improvement plans, and managing all results in the store. The Assistant Store Manager has lesser responsibilities, including assigning duties to the employees, making recommendations regarding hiring decisions, assisting in employee interviews, reporting employee relations issues to higher levels of management, and instituting corrective actions. A Shift Leader has even lesser responsibilities, almost no managerial authority, and is not responsible for corrective actions or hiring decisions.
Case law supports the position that Plaintiff was not similarly situated to Shipley and Blackford. In Cedillos, Plaintiff, a supervisory attorney, was demoted and suspended without pay for violating the employer's sexual harassment policy. Cedillos v. Tex. Dep't of Pub. Safety, SA-03-CV-0427-XR, 2005 U.S. Dist. LEXIS 3846, at *10 (W.D. Tex. March 10, 2005). Plaintiff argued that a State Trooper had been treated more favorably because the State Trooper was allowed to retire after being reprimanded for sexual harassment. Id. This Court found no evidence that Plaintiff, as a supervisory attorney, was similarly situated to someone in the different position of State Trooper. Id.
Plaintiff was not similarly situated to Shipley and Blackford because they each had different job responsibilities. Additionally, "[a] demonstrating of substantial similarly generally requires a showing that a common supervisor was involved in the decision making." Williams, 2005 U.S. Dist. LEXIS 38838, at *35-36. Plaintiff has not presented any evidence showing that Weir, the individual who made the decision to terminate Plaintiff, was aware of and failed to take action with respect to any misconduct by Blackford or Shipley. Consequently, the Court finds that Plaintiff was not similarly situated to Shipley and Blackford.
Plaintiff also cannot show that she was terminated under circumstances nearly identical to Shipley's and Blackford's. Plaintiff has not shown that either Blackford or Shipley ever stayed alone in a Blockbuster store at night after close on a night that a product transfer "was short." Plaintiff claims that Blockbuster should have investigated Shipley because she reported suspicious activity occurring while Shipley was a Store Manager. This suspicious activity was not "nearly identical" to the clear policy violation committed by Plaintiff, and it was not reported by Plaintiff to Blockbuster until after Shipley had resigned, making it impossible for Blockbuster to have taken any employment action against Shipley. Plaintiff claims that Blackford failed to report suspicious activity and was not disciplined, but this failure to report was not "nearly identical" to the clear policy violation committed by Plaintiff. Plaintiff admitted that to her knowledge, neither Blackford or Shipley had ever stayed at the store alone at night in violation of the Exiting Procedure. See Coleman, 162 F. Supp. 2d at 608 (stating that "[e]mployees with different responsibilities, different supervisors, different capabilities, different work rule violation, or different disciplinary records are not considered 'nearly identical'").
Plaintiff has failed to prove a prima facie case of sex discrimination because she has not shown that other similarly situated employees were treated more favorably than she or that she was replaced by somebody outside her class. Additionally, based on her own admissions that she engaged in conduct that violated Blockbuster policy, Plaintiff cannot show that Blockbuster's reason for discharge was false. Consequently, Plaintiff's sex discrimination claim must be dismissed.
3. Plaintiff failed to exhaust administrative remedies for her race discrimination claim.
Plaintiff's race discrimination claim must be dismissed because Plaintiff failed to exhaust her administrative remedies. The timely filing of a Charge of Discrimination with the EEOC is a "condition precedent to any Title VII suit." Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990); see also 42 U.S.C. § 2000e-5(e)(1). A Title VII claim may only be based on the specific complaints in the charge submitted to the EEOC and claims that are "like or related to the [C]harge's allegations," limited by the "scope of the EEOC investigation which can reasonably be expected to grow out of the [C]harge of Discrimination." Young, 906 F.2d at 179.
Plaintiff only checked the box next to "sex" on her Charge, and she stated on her Charge that, "I believe that I was discriminated against because of my sex, female." None of the documents Plaintiff submitted to the EEOC, including her Charge Questionnaire and EEOC Affidavit, allege that she had been discriminated against based on her race. Consistent with Plaintiff's limited allegation of discrimination on the basis of sex, the EEOC's pre-determination letter only discusses Plaintiff's sex discrimination allegation and does not discuss any race discrimination claim or mention the word "race."
Plaintiff's race discrimination claim is not like or related to her sex discrimination claim and clearly, was not within the scope of the EEOC's investigation of Plaintiff's Charge. See Wallace v. Medical Ctr. Of La. At New Orleans, No. 01-0579, 2002 U.S. Dist. LEXIS 23831, at *16-17 (E.D. La. Dec. 11, 2002) (stating that an investigation into sex discrimination was not likely to grown out of an EEOC Charge alleging only race discrimination and, therefore, dismissing the sex discrimination claim for failure to exhaust administrative remedies was appropriate). Plaintiff's first allegation of discrimination on the basis of race was made in her complaint. Plaintiff has failed to exhaust her administrative remedies on her race discrimination claim, and the Court holds that it must be dismissed as a matter of law. Young, 906 F.2d at 179.
III. CONCLUSION
Plaintiff's Title VII claims are not time barred under the ninety-day statute of limitations because the actual receipt date of the Right to Sue Letter is not "disputed or unknown" when the pro se Plaintiff makes a sworn allegation of actual receipt within the Taylor three-to-seven day presumptive period. Plaintiff's Title VII claim of race discrimination is dismissed for failure to exhaust administrative remedies. Plaintiff's Title VII claim of sex discrimination is dismissed on the merits because she has failed to establish a prima facie case of sex discrimination under the McDonnell Douglas framework. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment (Docket No. 47).