Summary
noting that "close temporal proximity can provide sufficient causation to satisfy the third prong of the prima facie case."
Summary of this case from McKee v. City of GreensboroOpinion
Case No. 1:00 CV 01147
February 19, 2002
JUDGMENT
This case is before the court on Defendant's Motion for Summary Judgment [Doc. # 14]. For the reasons stated in the contemporaneously filed Memorandum Opinion, the Motion is GRANTED and the case is DISMISSED WITH PREJUDICE.
MEMORANDUM OPINION
This case is before the court on Defendant's Motion for Summary Judgment [Doc. # 14]. Plaintiff has alleged retaliatory discharge in violation of 42 U.S.C. § 2000e et seq. and racial discrimination under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. For the reasons set forth below, Defendant's motion is GRANTED.
I.
The facts, in the light most favorable to the plaintiff, are as follows. In May, 1998, Plaintiff Joseph Foust, Jr., an African-American, applied for a job with Defendant South East Express ("SEE"). SEE's facility in North Carolina stages and sequences parts for lawnmowers. SEE's only customer is Honda Power Equipment. On his application, Mr. Foust falsely stated that he had neither been previously terminated from a job nor convicted of a crime more serious than a traffic infraction. SEE's plant manager, William Bechtel, interviewed and subsequently hired Mr. Foust for a position in SEE's Honda Service Department.
SEE argued that falsification of an employment application is grounds for termination. SEE, however, was unaware of Mr. Foust's falsification until after the termination. SEE argues that Mr. Foust's falsification should limit any award Mr. Foust might obtain under the after-acquired evidence doctrine. Because summary judgment is granted for Defendant on all of Mr. Foust's claims, it is unnecessary to analyze this aspect of SEE's argument.
Almost immediately, Mr. Foust was vocal about employment conditions and issues. Mr. Foust's first complaint was within two weeks of his start date and involved his treatment by supervisors during his training. Mr. Foust continued to bring employment issues to SEE's attention throughout his tenure and viewed himself as a type of "spokesperson" for the employees. Joseph Foust Dep., 208:16-18, Doc. # 15, Ex. B. Mr. Foust believed that he needed to come forward and challenge unfair practices because his co-workers would not do so.
In early February, 2000, a white female employee stated that the management was treating the white employees like "a bunch of niggers instead of the slave owners." Joseph Foust Dep., 169:5-12; 170:10-11. A co-worker heard this remark and reported it to management. The white employee was suspended, but rumors circulated that she would be allowed to return. Mr. Foust became concerned that management would allow the white employee to return to her position and felt that she should be terminated because of her highly offensive comment. Because he felt strongly on the matter, Mr. Foust made a presentation about how SEE should address racism during a meeting on February 9, 2000, attended by management. After this meeting, SEE terminated the white employee.
Although Mr. Foust admirably brought employment issues to management's attention, he also had several disciplinary problems while working at SEE. Mr. Foust was first disciplined on April 30, 1999, when he told a temporary employee that "[y]ou just need to take a twenty-five and blow your brains out," because the employee was "stupid" in locking a company truck and placing the keys back in the SEE facility. Joseph Foust Dep., 136:24-25. Mr. Foust was subsequently suspended without pay for three days. The next incident occurred when Mr. Foust had a dispute with a supervisor, Mr. Virden, about the amount of money Mr. Virden was to pay to reimburse Mr. Foust for buying lottery tickets. Mr. Foust apparently followed Mr. Virden around SEE premises for a short time and had an argument with Mr. Virden about the reimbursement. The next problem involving Mr. Foust occurred on February 25, 2000, when Mr. Foust responded to Team Leader Mark Chilton's request that Mr. Foust return to work by stating, "you go to the devil." Joseph Foust Dep., 150:16-22. The final disciplinary incident occurred in March, 2000, when Mr. Foust requested that a Honda employee, Delacie Jacobs, remain in a particular spot while he tried to resolve something. SEE alleges that Mr. Foust had previously made sexually harassing remarks to Ms. Jacobs and told her on this particular occasion to "keep her little ass right there." Bechtel Aff., ¶ 7, Doc. # 15, Ex. A. SEE alleges that it terminated Mr. Foust at this point because of his history of disciplinary problems and his remark to Ms. Jacobs, an employee of SEE's only customer Honda.
Mr. Foust subsequently filed the instant lawsuit alleging retaliation under Title VII of the Civil Rights Act of 1964, Section 2000e et seq. and racial discrimination under both Title VII of the Civil Rights Act and under 42 U.S.C. § 1981. Mr. Foust, however, withdrew his racial discrimination claims in his response to SEE's summary judgment motion.
II.
Summary judgment is only proper when, viewing the facts in the light most favorable to the non-moving party, there is no genuine issue of any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Cox v. County of Prince William, 249 F.3d 295, 299 (4th Cir. 2001). Summary judgment requires a determination of the sufficiency of the evidence, not a weighing of the evidence. Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if a reasonable jury, based on the evidence, could find in favor of the non-moving party. Anderson 477 U.S. at 248; Cox 249 F.3d at 299. The materiality of a fact depends on whether the existence of the fact could cause a jury to reach different outcomes. Anderson 477 U.S. at 248 Cox 249 F.3d at 299; Solers, Inc. v. Hartford Cas. Ins. Co., 146 F. Supp.2d 785, 791 (E.D. Va 2001). The party opposing the motion may not rest upon its pleadings but must instead provide evidence or point to evidence already on the record that would be sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 248. This evidence must be properly authenticated pursuant to Rule 56 (e). Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993). Furthermore, even where intent and motive are crucial to determining the outcome of the cause of action, conclusory allegations and unsupported speculation are insufficient to withstand summary judgment review. See Evans v. Techs. Applications Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); Cross v. Bally's Health Tennis Corp., 945 F. Supp. 883 (D. Md. 1996).
III.
SEE has moved for summary judgment on both the racial discrimination claims and the retaliation claim. Because Mr. Foust has "abandoned" his racial discrimination claims, summary judgment is entered in favor of SEE on those claims. Mr. Foust, however, is still pursuing his retaliation claim. Mr. Foust contends that SEE terminated him because of his February 9, 2000 speech opposing racial discrimination in the workplace. Mr. Foust contends Mr. Bechtel believed that the speech was a personal attack and subsequently terminated Mr. Foust because of the speech.
In order to make a prima facie case for retaliation in violation of Title VII, Mr. Foust must show that, (1) he was engaged in a protected activity; (2) SEE took adverse employment action against him; and (3) there is a sufficient causal connection between the protected activity and the adverse employment action. Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997); Joiner v. Wal-Mart Stores, Inc., 114 F. Supp.2d 400 400, 410 (W.D.N.C. 2000). The McDonnell Douglas burden-shifting analysis applies to Title VII retaliation claims. Ross v. Communciations Satellite Corp., 759 F.2d 355 (4th Cir. 1985); Salmons v. Dollar Gen. Corp., 989 F. Supp. 730, 737 (D. Md. 1996). Under the McDonnell Douglas analysis, if Mr. Foust can establish this prima facie case, the burden shifts to SEE to state a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Beall, 130 F.3d at 619;Joiner, 114 F. Supp. 2d at 411. If SEE can articulate such a legitimate, non-discriminatory purpose, the burden shifts back to Mr. Foust to produce evidence sufficient to support a reasonable inference that SEE's legitimate reasons are mere pretext. McDonnell Douglas, 411 U.S. at 804; Beall, 130 F.3d at 619; Joiner, 114 F. Supp. 2d at 411. The ultimate burden to prove retaliation, however, remains on Mr. Foust throughout the process. Texas Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Title VII retaliation claims of this kind may be governed by either the mixed-motive or pretext standards. Kubicko v. Ogden Logistical Servs., 181 F.3d 544, 553 n. 8 (4th Cir. 1999) (stating that "we expressly join our sister circuits in holding that the mixed-motive proof scheme is available to a Title VII plaintiff in order to prove a retaliation claim . . . if the plaintiff can establish the necessary evidentiary threshold"); Lyon v. Bell Atlantic Corp., No. Civ. JFM-99-3631, 2001 WL 826580 at *1 (D. Md. July 19, 2001). The pretext analysis, however, is more appropriate in this case for two reasons. First, Mr. Foust has proceeded on a legal theory of pretext and has not mentioned the mixed-motive framework in his court filings. Second, even if Mr. Foist had requested a mixed-motive analysis, he has presented no direct evidence of retaliation and has not satisfied the requisite evidentiary burden. The evidence of retaliation is limited to Mr. Foust's speculation, the temporal proximity between the protected activity and the adverse employment action, weak evidence regarding allegedly similar situated individuals, and Ms. Jacob's motivation in meeting with her supervisor following her interaction with Mr. Foust in March, 2000.
SEE does not dispute that Mr. Foust engaged in a protected activity and that SEE subsequently took adverse employment action against him. Furthermore, it is clear that SEE took adverse employment action against Mr. Foust when it terminated him from his position.
SEE does, however, dispute that Mr. Foust has established his prima facie case because it contends that there is no causal connection between Mr. Foust's protected activity and his termination. SEE first argues that there is no direct evidence that Mr. Foust's speech on employment conditions was the cause of his termination. Second, SEE contends that there is not enough temporal proximity to demonstrate causation, citingCarter v. Ball, 33 F.3d 450 (4th Cir. 1994), and Joiner. SEE notes that Mr. Foust acted as a "spokesperson" for employment conditions throughout his employment, a fact corroborated by Mr. Foust's affidavit. SEE thus argues that, because Mr. Foist engaged in the protected activity for more than a year prior to his termination, too much time had passed to demonstrate causation.
It is true that Mr. Foust has not produced any direct evidence of causation. Although Mr. Foust has offered Mr. Bechtel's statement that he felt attacked by Mr. Foust's presentation, Mr. Foust has provided no additional evidence that Mr. Bechtel terminated him because of Mr. Bechtel's feelings about the speech. SEE's argument that there is no temporal proximity, however, is flawed. SEE bases its argument on the fact that Mr. Foust spoke up on employment issues throughout his two-year employment. While it is true that distant temporal proximity can rebut the causation element, and that time periods exceeding six months could fall into that category, Joiner, 114 F. Supp. 2d at 410, Mr. Foust charges that he was terminated specifically because of his February 9, 2000 speech. Because Mr. Foust was terminated within one month of the February speech, SEE's argument that there was not enough temporal proximity must fail. In fact, close temporal proximity can provide sufficient causation to satisfy the third prong of the prima facie case.Carter, 33 F.3d at 460. In this case, the one month time period is enough to satisfy the causation requirement for Mr. Foust's prima facie case of retaliation under Carter. Id. (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 454 (4th Cir. 1989)) (noting that causal connection had been found to exist when four months had passed between the protected activity and the adverse employment action). Mr. Foust has thus established a prima facie case for retaliation under Title VII.
Although Mr. Foust has established his prima facie case, SEE contends that it had legitimate, nondiscriminatory reasons for terminating his employment. SEE states that it fired Mr. Foust not for his February 9, 2000 speech, but for his history of problems interacting with co-workers and his harassment of Ms. Jacobs, an employee of its only customer. SEE points to the fact that Mr. Foust told a temporary worker to "blow his brains out," told a supervisor "you go to the devil," and yelled at a supervisor on company premises as evidence of Mr. Foust's inability to interact with his coworkers. Mr. Foust admits in his deposition that each of these events in fact occurred. Furthermore, SEE contends that Mr. Foust had made sexually harassing comments towards Ms. Jacobs, Honda's employee, even before March, 2000, when he allegedly told Ms. Jacobs to sit her "little ass down." Although Mr. Foust denies the exact words he used, he does admit that he had previously tried to "romance" Ms. Jacobs and that he did ask Ms. Jacobs to remain in place in March, 2000. Joseph Foust Dep., 158:11. SEE argues that Mr. Foust's behavior in relation to Ms. Jacobs is especially egregious because Ms. Jacobs was an employee of Honda, SEE's only customer. SE notes that Mr. Foust was aware of how important Honda's business was, a fact admitted by Mr. Foust in his deposition. Furthermore, SEE points out that two of Mr. Foust's disciplinary problems, his devil comment and his behavior towards Ms. Jacobs, occurred after the February, 2000 speech. SEE contends that the totality of Mr. Foust's inappropriate interactions with co-workers, culminating with his treatment of Ms. Jacobs, warranted his termination.
In turn, Mr. Foust does little to show that SEE's purported legitimate, nondiscriminatory reasons are pretext. Mr. Foust's evidence consists of his speculation as to Mr. Bechtel's motive for the termination, the temporal proximity of the termination, his contention that similarly situated employees were not treated similarly, and that Ms. Jacobs did not go to her supervisor to report Mr. Foust's conduct, but instead to procure aid in executing her job functions, as well as Mr. Foist's speculation that Ms. Jacobs was forced to make the complaint. Speculation may not be considered evidence for purposes of summary judgment. Evans, 80 F.3d at 960. Mr. Foust does have temporal proximity to support the causation prong, but this alone is insufficient to rebut SEE's alleged nondiscriminatory reasons for the termination, especially because two of his disciplinary problems occurred after his February, 9, 2000 speech.
In his affidavit, Mr. Foust contends that Mr. Bechtel told him that Mr. Foist had made the February 9, 2000 presentation in an attempt to get back at Mr. Bechtel. Joseph Foust Aff., ¶ 7-8, Doc. # 19, Ex. 1. Taking this to be true for purposes of summary judgment, it is insufficient to demonstrate that Mr. Foust was fired because of the speech. Instead, the statement is only sufficient to demonstrate how Mr. Bechtel felt about Mr. Foust's presentation.
Mr. Foust has provided evidence purporting to show that similarly situated employees were treated differently. First, Mr. Foust provided affidavits stating that cursing, vulgarity, and offensive language were commonplace and that employees were not terminated for such behavior. Joseph Foust Aff., ¶ 12, Doc. # 19, Ex. 1 (limiting his remarks to white employees); Harold Lee Foust Aff., ¶ 4, Doc. #19, Ex. 3 (extending his remarks to all employees); McNair Aff., ¶ 4, Doc. #1 9, Ex. 4. These affidavits, however, rely only on vague assertions and do not identify any individuals who cursed or used vulgar or offensive language and not been reprimanded. Furthermore, SEE views the use of such language towards an employee of Honda, its sole customer, as far more inappropriate than the use of the same language toward a co-worker. The affidavits provided by Mr. Foust do not address this issue. The affidavits are therefore insufficient to create a genuine issue of material fact about similarly situated employees.
Mr. Foust has also pointed to an incident where another SEE employee made a disparaging remark about a co-worker and was not disciplined. Mr. Foust provided the affidavit of Tony McNair, which stated that Mr. Chilton remarked to a co-worker that two employees were "bitches" yet did not receive a written or oral warning. McNair Aff., ¶ 5. This alleged incident is not enough to raise a genuine issue of material fact. First, Mr. Chilton made the remark to a third party and not to the employee it involved. Second, Mr. Foust has not provided evidence that Mr. Chilton had at least three prior instances of trouble interacting, as did Mr. Foust. Finally, and most importantly, Mr. Chilton was not directing his comment toward an employee of SEE's only customer. Mr. Foust has acknowledged that Honda was "extremely important" to SEE. Joseph Foust Dep., 121:16-22. Mr. Chilton's behavior was thus dissimilar to Mr. Foust's comment and Mr. Foust has provided no evidence that the two shared a similar history of inability to interact appropriately with co-workers.
Mr. Foust's final attempt to demonstrate unequal treatment involves the white employee who prompted his February, 9 speech. Mr. Foust contends that the white employee was suspended but not immediately terminated for making the racist remark. Mr. Foust states that he, however, was summarily dismissed without suspension. The white employee's treatment, however, does not present evidence of a similarly situated employee because the white employee did not make the remark to a Honda employee and Mr. Foust has not presented evidence that she had a history of disciplinary problems. Even if the two were considered similar, both employees were fired. Thus, assuming arguendo that Mr. Foist and the white employee were similarly situated, they both received the same treatment: termination. Thus, Mr. Foust's attempt to identify similarly situated employees does not present sufficient evidence to pose a genuine issue of material fact that Mr. Foust was terminated in retaliation for his February 9, 2000 speech.
Mr. Foust also challenges SEE's stated legitimate, nondiscriminatory reasons as pretext by alleging that Ms. Jacobs did not go to a supervisor for the specific purpose of reporting the alleged incident. Mr. Foust has not provided an affidavit stating that he did not make the alleged remark. Instead, his affidavit states that "plaintiff was fired for stating to Delacie Jacobs as she was leaving his work area, you better get your little ass over here." Joseph Foust Aff., ¶ 10. The affidavit does not actually deny the statement. Mr. Foust also alleges that SEE's stated legitimate reasons are pretext because Ms. Jacobs did not seek out a supervisor to report the comment. Mr. Foust has provided Ms. Jacobs' affidavit which states that "I approached [a supervisor] . . . and in conversation, I mentioned the remark Joseph Foust made. However, I did not speak to [the supervisor] . . . to complain about what Foust said, but to seek permission for [Honda's] temporary employees to pull parts for Foust." Jacobs Aff., ¶ 5, Doc. #19, Ex. 2. The fact that Ms. Jacobs did not seek out a supervisor for the purpose of making a complaint about Mr. Foist's behavior, however, is not sufficient to create a genuine issue of material fact. See Joiner, 114 F. Supp. 2d at 411 (stating that the motivation of employees alleging sexual harassment is irrelevant as long they are not "acting in concert with the employer"). Mr. Foust's evidence on this matter is therefore insufficient to pose a genuine issue of material fact.
Mr. Foust has also provided evidence that a sign was posted at SEE following Mr. Foust's termination which stated that Mr. Foust should not be allowed on company premises for Ms. Jacobs' safety. Mr. Foust contends that this sign is further proof of pretext. On the contrary, any such sign would appear only to substantiate SEE's claim that it believed that Mr. Foust was harassing Ms. Jacobs. This evidence is therefore also insufficient to pose a genuine issue of material fact.
Mr. Foust's attempts to demonstrate pretext are insufficient, individually and in totality. Mr. Foust's only evidence is his speculation as to Mr. Bechtel's motivation, vague assertions that cursing was commonplace, evidence that one supervisor was not disciplined without providing the supervisor's disciplinary history, evidence of the white employee's treatment, and the fact that Ms. Jacobs did not seek out someone to make a complaint against Mr. Foust. None of this is sufficient to demonstrate that SEE's legitimate, nondiscriminatory reason was pretext. Therefore, summary judgment for SEE is appropriate.
IV.
For the reasons stated above, SEE's motion for summary judgment is GRANTED and this case is DISMISSED WITH PREJUDICE.