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In Franklin, the plaintiff entered into a verbal settlement agreement with his employer to resolve his suit for racial discrimination.
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Civil Action No. 4:03-CV-228-BE.
March 3, 2005
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant's Motion for Summary Judgment, filed December 10, 2003 and Plaintiff's Motion for Partial Summary Judgment, filed January 26, 2005. Having reviewed the arguments, evidence of record, and the substantive law, the Court finds that Defendant's Motion for Summary Judgment should be granted and Plaintiff's Motion for Partial Summary Judgment should be denied.
A. HISTORY
Richard Franklin, who is African-American, was employed by Burlington Northern and Santa Fe Railway [BNSF] as a dispatcher beginning in May 1995. In December 1997, Franklin sued BNSF under Title VII of the Civil Rights Act of 1964 for racial discrimination. Franklin v. Burlington Northern and Santa Fe Railway Co., No. 4:97-CV-1051-A (N.D. Tex. filed Dec. 17, 1997). See generally 42 U.S.C. § 2000e et seq. The parties negotiated a settlement of that action, one of the terms being Franklin's resignation from his job at BNSF, and advised the district court of their settlement during a telephone conference. The district court entered its order and final judgment on March 31, 1999 dismissing Franklin's claims with prejudice. Franklin, N. 4:97-CV-1051-A (N.D. Tex. Mar. 31, 1999).
Franklin resigned from BNSF effective April 1, 1999. (Def. App., Exh. 1, p. 10, ¶ 17). Franklin and his counsel accepted a settlement check from BNSF in the amount of $150,000 issued April 6, 1999, but Franklin refused to sign settlement documents drafted by BNSF's counsel that provided that he would not reapply for a position with BNSF in the future. BNSF's counsel advised Franklin's counsel that Franklin "was welcome to sign any of the settlement documents [prepared by BNSF's counsel, but BNSF] was content to abide by the terms of the verbal agreement so long as [Franklin] behaved consistently with what [BNSF] believed those terms to be." (Def. App., Exh. 1, p. 13, ¶ 23). On May 19, 1999, BNSF's Human Resources Manager, Steven J. Klug, directed that a notation be placed in Franklin's personnel file indicating that no applications would be accepted from Franklin based on the terms of the parties' settlement agreement. (Def. App., Exh. 2, p. 86, ¶ 6).
In June 1999, Franklin attempted to apply for another dispatching position with BNSF. He met with Klug, who advised him that he was not eligible for re-hire and that there were no openings for experienced dispatchers. (Def. App., Exh. 2, pp. 86-87, ¶ 7). Franklin was not permitted to obtain or submit a job application. Franklin filed suit against BNSF on December 23, 1999, asserting that BNSF's refusal to rehire him or provide him with a job application was retaliation for his previous complaints to the Equal Employment Opportunity Commission (EEOC) and his earlier suit for racial discrimination. Franklin initially filed suit in the Western District of Texas, but his case was subsequently transferred to the Northern District of Texas, Fort Worth Division. See generally Franklin v. Burlington Northern and Santa Fe Railway, No. 4:00-CV-1508-A (N.D. Tex. filed Dec. 23, 1999). On September 25, 2001, the district court granted summary judgment to BNSF on two grounds: the untimeliness of Franklin's lawsuit and the merits. In particular, the court found that Klug acted based on his understanding that the settlement of Franklin's previous suit and Franklin's resignation barred Franklin from reapplying for another position at BNSF, which constituted a legitimate, non-discriminatory reason for BNSF's conduct. Franklin, No. 4:00-CV-1508-A (N.D. Tex. Sept. 25, 2001).
Franklin attempted to apply for another job with BNSF in July 2002, but his efforts were again unsuccessful. Klug wrote a letter to Franklin in August 29, 2002 in which he explained that employment applications from Franklin would not be processed because
you agreed to permanently resign your employment effective April 1, 1999 and not to ever seek re-employment by BNSF, and thus the Company does not have any obligation to consider you for rehire.
(Def. App., Exh. 5, p. 118). Franklin filed another complaint with the EEOC and was issued a right to sue letter. Franklin filed the present action on March 28, 2003 asserting that BNSF has discriminated against him based on his race and in retaliation for his previous claims of unlawful employment practices at BNSF.
B. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if 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 judgment as a matter of law. FED.R.CIV.P.56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The court views all of the evidence and inferences therefrom in the light most favorable to the nonmovant. Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
The movant bears the initial burden of showing that no genuine issue of material fact exists, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. OBJECTIONS TO THE SUMMARY JUDGMENT EVIDENCE
BNSF objects to several of the exhibits appended to Franklin's consolidated Motion for Partial Summary Judgment and response to BNSF's summary judgment motion. Among Franklin's exhibits are Requests for Admission prepared in the lawsuit that Franklin filed against BNSF in 2000. (Plf. App., Exh. 4-6, pp. 24-40). Federal Rule of Civil Procedure 36(b) provides that any matter admitted pursuant to a Request for Admission is for purposes of the pending action only and may not be used against the admitting party in any other proceeding. FED.R.CIV.P.36(b). BNSF's objection to Franklin's attempt to use admissions made in the 2000 lawsuit is sustained and those admissions shall not be considered for any purpose.
Franklin also includes copies of BNSF's responses to two sets of Requests for Production also prepared as part of Franklin's previous litigation against BNSF. (Plf. App., Exh. 7-8). Responses to product requests are not made under oath and Franklin has not otherwise authenticated those responses. See generally FED.R.CIV.P.56(e). Accordingly, they do not constitute competent summary judgment evidence in the present proceeding and will not be considered.
D. DISCUSSION
Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits retaliation by employers against employees for opposing practices made unlawful under Title VII or for participating in any proceeding relating to such claims. 42 U.S.C. § 2000e-3.
Presentation of an employment discrimination case follows the order of proof established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and reaffirmed by the Supreme Court in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). The Fifth Circuit applies the McDonnell Douglas burden-shifting framework to retaliation claims. Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 402-03 (5th Cir. 2000), cert. denied, 532 U.S. 937 (2001).
The plaintiff must first meet the minimal requirement of establishing a prima facie case of discrimination, which creates a presumption that the employer unlawfully discriminated against the employee. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747, 125 L.Ed.2d 407. For purposes of summary judgment only, BNSF assumes that Franklin can establish a prima facie case of discrimination or retaliation. Once the plaintiff has established a prima facie case, the burden shifts to the employer to produce evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Id. at 506-07, 113 S.Ct. at 2747, 125 L.Ed.2d 407. The employer must articulate a reason for its actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the reason for the adverse action. Id. at 507, 113 S.Ct. at 2747,125 L.Ed.2d 407. If a legitimate, nondiscriminatory reason is offered by the defendant, the presumption of discrimination created by plaintiff's prima facie case disappears and the burden returns to the plaintiff to show that defendant's proffered reason is pretextual. McDonnell Douglas, 411 U.S. at 804. The plaintiff must persuade the court by a preponderance of the evidence that the reason given by the defendant is not the real reason for the termination. Hicks, 509 U.S. at 508, 113 S.Ct. 2742, 125 L. Ed. 2d 407 (1993). Although the burden of production shifts between the plaintiff and defendant, the ultimate burden of persuasion always remains with the plaintiff to prove the defendant intentionally discriminated against him. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981).
To establish a prima facie case where plaintiff claims that he was not selected for a position for which he applied because of race, plaintiff must prove that: (1) he is a member of a protected group; (2) he was qualified for the job for which he applied; (3) he was not selected for the job; and (4) the job was filled by a person who is not a member of the protected group or the position remained open and the employer continued to seek applications from persons with plaintiff's qualifications. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004). A prima facie retaliation claim requires proof that (1) the employee engaged in protected activity; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between the protected activity and the adverse employment action. Mattern v. Eastman Kodak, 104 F.3d 702, 705 (5th Cir. 1997).
BNSF asserts that its challenged actions were based on Klug's belief that the settlement of Franklin's claims against BNSF included an agreement that Franklin permanently resign his employment and not re-apply for positions with BNSF. Because BNSF has stated a legitimate, nondiscriminatory reason for its conduct, the burden is on Franklin to demonstrate that the reason offered is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). Evidence of pretext alone may, but not always, sustain a fact-finder's determination of unlawful discrimination. See id. at 148, 120 S.Ct. at 2109; Raggs v. Mississippi Power Light Co., 278 F.3d 463, 468 (5th Cir. 2002).
Franklin contends that the reason that BNSF has offered is pretextual because BNSF has inserted specific provisions in other settlement agreements barring a departing employee from being rehired and thus BNSF knew that Franklin's verbal agreement to resign did not, by itself, prevent him from reapplying for employment with BNSF in the future. Franklin asserts that BNSF also knew Franklin had refused to sign written settlement agreements in April 1999 that contained language prohibiting him from reapplying for employment. Franklin notes that BNSF at one point in April 1999 revised the settlement agreement to include a provision that Franklin not reapply for employment with BNSF for a period of ten years. Franklin refused to sign that agreement, too, but argues that the revision is further proof that BNSF was aware that Franklin was not otherwise prohibited from reapplying for work with the company.
An employer's adverse employment action that relies only on the fact that a claim was settled may violate Title VII, but an employer's reliance on the terms on which the claim was settled does not necessarily violate Title VII. Kendall v. Watkins, 998 F.2d 848, 850-51 (10th Cir. 1993) (distinguishing the fact of settlement from the terms of settlement as a proper basis for a retaliation claim). Moreover, Franklin's suit is not an action for breach of contract and a mere mistake in BNSF's view of the terms of the contract is not grounds for finding BNSF's reason to be pretextual. See Auguster v. Vermilion Parish School Board, 249 F.3d 400, 404 (5th Cir. 2001) (holding that school board's erroneous view of the law was insufficient to establish pretext); Kendall, 998 F.2d at 851 (finding that critical issue is whether employer's interpretation of agreement is reasonable and thus a legitimate reason for its conduct).
BNSF asserts that its negotiations with Franklin always contemplated Franklin's permanent departure, regardless of Franklin's subjective thoughts on the subject, and affidavits from BNSF's counsel in 1999 and letters from Franklin's own counsel indicate that Franklin's retirement from BNSF in exchange for money was an option that Franklin would consider. (Def. App., Exh. 1, pp. 5, 25-26; Exh. 14, p. 240). BNSF's subsequent efforts to secure a written agreement from Franklin in April 1999 only serves to reinforce BNSF's interpretation that Franklin's departure was permanent. BNSF, in reducing the parties' agreement to writing, specifically inserted language banning Franklin from reapplying for employment with BNSF. The fact that BNSF made later revisions in an effort to make this term more palatable to Franklin, i.e., placing a ten-year time limit on Franklin's application ban, does not suggest that BNSF had not contemplated Franklin's permanent departure as part of the verbal agreement on which the parties ultimately relied. Furthermore, Franklin's assertions do not undermine Klug's stated belief that he at all times acted in conformity with what he believed the terms of Franklin's verbal settlement agreement with BNSF to be. (Def. App., Exh. 2, p. 85).
Franklin asserts that he did not give his counsel authority to make any arrangement that would bar him from reapplying for work with BNSF in the future, but there is no indication that this limitation on counsel's authority was conveyed to BNSF during the negotiations that preceded dismissal of Franklin's original lawsuit. (Plf. App., Exh. 1, p. 1).
Franklin asserts that Klug cannot reasonably believe that the settlement agreement bars Franklin from applying for a new position with BNSF because the verbal agreement announced to the court provided only for Franklin's resignation. Klug, however, provided reasonable deposition testimony that he viewed resignation, when paired with a payment to Franklin that was equivalent to approximately three years' salary, as a permanent arrangement. (Def. App., Exh. 14, pp. 231-32, 290-92). In fact, Klug designated Franklin as ineligible for rehire in BNSF's records after Franklin's first lawsuit was settled. (Def. App., Exh. 2, pp. 86, 94-95). Franklin provides no controverting evidence to suggest that Klug did not actually view Franklin's resignation as permanent.
Klug did testify that BNSF, in one instance, permitted an employee who voluntarily resigned from BNSF to work for an outside contractor to return to BNSF on the condition that the employee return the severance payment he received when he had resigned. (Def. Resp. App., Exh. 1, pp. 6-9). This situation is distinguishable from Franklin's circumstances and does not raise a fact issue regarding the sincerity of Klug's belief that resignation is a permanent state.
Franklin also contends that Klug has not given uniform reasons for rejecting Franklin's attempts to reapply in 1999 and 2002 and that Klug's most recent articulated rationale is "after the fact inspiration." On June 12, 2000, Klug provided a declaration in Franklin's second suit against BNSF that identified a dozen individuals as having "information related to Franklin's job performance while at BNSF, other issues raised in the First Lawsuit, and/or settlement of that lawsuit. That information is relevant to BNSF's reasons for not wanting to rehire Franklin." (Plf. App., Exh. 3, pp. 22-23). Franklin asserts that Klug's declaration necessarily implies that race or retaliatory motives were involved in the decision to bar Franklin from future employment with BNSF because the first lawsuit presented issues of race discrimination during Franklin's employment.
Read as a whole, Klug's declaration appears to be intended to support the transfer of Franklin's second suit against BNSF to the Northern District of Texas from the Western District of Texas where it was filed. In fact, Klug's declaration goes on to note that the twelve individuals designated as having relevant information worked or resided in the Fort Worth area. Moreover, Franklin's assertion does not create a question of fact regarding Klug's belief that the terms of the parties' verbal settlement agreement provided for Franklin's permanent separation from BNSF. Franklin fails to explain how his unsuccessful suit against BNSF in December 1999 for similar conduct makes it unreasonable for BNSF to refuse to accept an employment application from him in 2002. Franklin's subjective belief that he was not allowed to apply for a position based upon race or retaliation is insufficient to create an inference of discriminatory intent. See Roberson v. Alltel Information Servs., 373 F.3d 647, 654 (5th Cir. 2004).
In his declaration dated June 12, 2000, Klug also acknowledged that he was aware that Franklin had agreed to resign from BNSF, but in Klug's words, later "tried to back out of the deal." (Plf. App., Exh. 3, p. 22).
Klug also noted that his understanding and enforcement of the settlement terms was consistent with BNSF's unwritten practice of considering ineligible for rehire any employee to whom the company paid money in order to effectuate a separation from employment. Franklin asserts that he was never made aware of such a policy at BNSF and using such a policy against him would be per se discrimination or retaliation. Franklin's argument raises no material issues of fact. Klug has consistently asserted that he designated Franklin as ineligible for rehire and refused to process his application in 2002 because of his resignation under the terms of the settlement agreement, not because of a separate written or unwritten policy — although Klug's decision might also be consistent with that policy.
BNSF has set forth a similar policy in writing for its "exempt" employees, but Franklin was a "scheduled" employee and the written policy would not apply to him.
Viewing the evidence in the light most favorable to Franklin, a reasonable and fair-minded person would not conclude that the explanation BNSF has offered was a pretext for race discrimination or unlawful retaliation.
It is ORDERED that Defendant's Motion for Summary Judgment is granted.
It is ORDERED that Plaintiff's Motion for Partial Summary Judgment is denied.