Summary
finding that Section 1981 does not extend to Kunsan Air Base in South Korea
Summary of this case from Gulaid v. CH2M Hill, Inc.Opinion
No. EP-04-CV-0012-FM.
August 9, 2005
ORDER GRANTING IN PART AND DENYING IN PART "DEFENDANT'S MOTION FOR SUMMARY JUDGMENT"
On this day, the Court considered "Defendant's Motion for Summary Judgment" [Rec. No. 37], "Plaintiff's Response to Defendant's Motion for Summary Judgment" [Rec. No. 43], "Defendant's Reply Brief in Support of Motion for Summary Judgement" [Rec. No. 61], "Defendant's Objections to Plaintiff's Summary Judgment Proof" [Rec. No. 51], and "Plaintiff's Response to Defendant's Objections to Plaintiff's Summary Judgment Evidence" [Rec. No. 63]. After careful consideration of the motion, summary judgment evidence, and applicable case law, the Court is of the opinion that "Defendant's Motion for Summary Judgment" [Rec. No. 37] should be GRANTED IN PART AND DENIED IN PART for the following reasons:
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Paul Gallaspy ("Gallaspy") brings the instant action alleging race discrimination by his employer Raytheon Technical Services Company ("Raytheon"). Gallaspy, an African American, has worked at Raytheon for approximately nine years. Gallaspy is as an Organizational Activity Interface ("OAI"). The OAI's function is to provide technical assistance to the United States Army relating to the PATRIOT missile system. In January 2002, Gallaspy was assigned to work at Kunsan Air Base, South Korea, where he was placed with an individual battalion. Each OAI assignment in Kunsan, South Korea is a one-year assignment.
During the relevant time period, Larry Swanson was the Raytheon manager in Massachusetts responsible for administering the contract for OAI services. David Casmus ("Casmus") was a logistics manager located in El Paso, Texas, responsible for coordinating the individual unit's needs for OAIs. Jointly, Swanson and Casmus were responsible for the placement and removal of OAIs.
In January of 2003, Gallaspy was informed his assignment in South Korea would not be extended and would be laid off when he returned to El Paso, Texas. Gallaspy was replaced in South Korea by Jeff Moore ("Moore"), a white male with less experience and qualifications than Gallaspy. Defendant argues the reason for removing Gallaspy was that its customer, the United States Army, requested that he be replaced. Plaintiff argues that there is evidence indicating Gallaspy was removed as a result of Raytheon's decision and also Casmus' desires. In addition to the fact that Gallaspy received above average performance ratings, Plaintiff further alleges that suspicious circumstances surrounded the development of a false evaluation of Gallaspy's performance.
Following these alleged discriminatory employment practices in South Korea and being removed from the South Korea assignment, Gallapsy returned to El Paso, Texas. For the 2004 assignment year, Gallaspy requested and applied for reconsideration of the South Korea assignment. Plaintiff alleges that his replacement, Moore, had performance reviews "subpar relative to Mr. Gallaspy's performance" and "the real reason Mr. Gallaspy was discriminated and retaliated against in the terms, conditions and privileges of his employment is because of his race or ethnicity." [Rec. No. 1].
Gallaspy's complaint alleges racial discrimination associated with his removal from South Korea in December of 2002 and discrimination and retaliation associated with the subsequent denial of his request to return to South Korea in September of 2003. Plaintiff alleges the compensation that Gallaspy would receive in South Korea is almost double and that a certain percentage of the pay is tax-free. Since early 2003, Gallaspy has been employed by Raytheon at Ft. Bliss, Texas.
Defendant now moves for summary judgment pursuant to FED. R. CIV. P. 56(c).
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered 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 judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Ragas, 136 F.3d at 458. Further, the court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-152 (2000).
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458.
Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. LAW AND ANALYSIS
Gallaspy alleges a cause of action for race discrimination under 42 U.S.C. § 1981 (2000) ("§ 1981"), Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (2000) ("Title VII") and Tex. Lab. Code Ann. §§ 21.051 and 21.055 (Vernon's 1998) ("Chapter 21"). Accordingly, the Court will analyze Gallaspy's claims of race discrimination under these statutes. Under Title VII, employers are prohibited from "discharg[ing] an individual, or otherwise discriminat[ing] against any individual because of such individual's race, or national origin." 42 U.S.C. § 2000e-2(a)(1). Chapter 21 provides for the execution of Title VII in state law. See TEX. LAB. CODE § 21.001(1). Plaintiff's discrimination claims will be analyzed in the same manner under Title VII, § 1981, and Chapter 21. See Shackelford v. Deloitte Touche, 190 F.3d 398, 404 n. 2 (5th Cir. 1991). Title VII also prohibits retaliation against an employee "because he has opposed any practice made an unlawful practice by this subchapter." 42 U.S.C. § 2000e-3(a).
The elements of proof necessary to establish a Title VII claim and a Section 1981 claim are identical. Anderson v. Douglas Lomason Co., 26 F.2d 1277, 1284 n. 7 (5th Cir. 1994).
Because the record in this case contains no direct evidence of race discrimination, the Court will employ the three-part burden shifting analysis set forth in McDonnell Douglas Corp. v. Green. 411 U.S. 802, 804 (1973); Texas Dep't of C'mty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Byers v. Dallas Morning News, 209 F.3d 419, 425-26 (5th Cir. 2000). Plaintiff must first establish a prima facie case of discrimination. Byers, 209 F.3d at 425-26. If the prima facie case is successfully established, the burden then shifts to a defendant to demonstrate a legitimate, nondiscriminatory reason for its action. Id. Finally, if both burdens are met, the burden shifts back to the plaintiff to demonstrate that defendant's nondiscriminatory action was a mere pretext for discrimination. Id. A. Race Discrimination
In order to establish a prima facie case of discrimination, Gallaspy must show, by a preponderance of the evidence, the following: (1) he was a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) after his adverse employment action, he was replaced by someone not a member of the protected class or that others similarly situated and outside of the protected class were more favorably treated. Urbano v. Continental Airlines Inc., 138 F.3d 204, 206 (5th Cir. 1998), Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). Here, the Court will assume, for purposes of this motion, that Gallaspy has established a prima facie case of race discrimination.
Defendant's summary judgment motion states the following: "For purposes of this motion and without admitting the assumption, Raytheon assumes Gallaspy can establish a material fact question as to each of the elements of his prima facie case relating to his removal from Korea." [Rec. No. 37].
Plaintiff has thus established a rebuttable presumption that the Defendant unlawfully discriminated against him. Defendant argues that it overcomes this presumption because it has proffered a legitimate, non-discriminatory reason for its actions. As a legitimate, nondiscriminatory reason, Defendant presents evidence demonstrating that Plaintiff was laid off because Raytheon's customer, the United States Army, requested that Raytheon replace Gallaspy. Accordingly, Defendant satisfied its burden to articulate a legitimate, nondsicriminatory reason for not renewing Gallaspy's assignment to Korea. Under the McDonnell Douglas framework, the burden shifts back to Plaintiff, who, in order to survive summary judgment, must raise a genuine issue of material fact as to whether Defendant's proffered reason was merely a pretext for discrimination.
Plaintiff argues Defendant's reasons are merely pretextual. Plaintiff may prove pretext by "either showing that a discriminatory reason motivated the defendant or by showing that the proffered reason is unworthy of credence." Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir. 1993) (internal citations omitted). "To overcome a motion for summary judgment of course, the plaintiff need only produce evidence to create a genuine issue of material fact concerning pretext." Id. To carry his burden, "the plaintiff must produce substantial evidence of pretext." Auguster v. Vermillion Parish Sch. Bd., 249 F.3d 400, 402-03 (5th Cir. 2001). "Evidence that the proffered reason is unworthy of credence must be enough to support a reasonable inference that the proffered reason is false; a mere shadow of doubt is insufficient." Id. Further, the Fifth Circuit has consistently held that the plaintiff's "subjective belief" of discrimination alone is insufficient to establish pretext. Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995).
Plaintiff argues Defendant's stated reason for the firing is pretext by presenting evidence that he was not removed by the request of the customer, but by discriminatory actions of Raytheon. In addition, Gallaspy states "bizarre circumstances surrounding the July 2002 evaluation of Gallaspy's performance bolster the other evidence of pretext." Plaintiff further argues Raytheon treated Gallaspy differently from employees outside of his protected class. After reviewing all of the pleadings, the Court concludes that Gallaspy has raised a genuine issue of material fact that Raytheon's reason for discharging him is a mere pretext for race discrimination. Accordingly, the Court DENIES summary judgment on Gallaspy's claims asserting race discrimination in violation of Title VII, § 1981, and Chapter 21. B. Title VII Retaliation
Even though the Court declines to grant summary judgment on this basis, Section III.C. of this Order grants summary judgement on Plaintiff's Section 1981 and Chapter 21 claims because these do not apply extraterritorially and are not applicable to the facts of this case. The Court therefore addresses the extraterritorial application of the statutes separately from the ability of the Plaintiff to prove the elements of the statutes, which is a question on the merits.
As with Gallaspy's claims of race discrimination, the Court applies the McDonnell Douglas burden shifting framework to Gallaspy's claims of retaliation. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). To establish a prima facie case of retaliation, Plaintiff must show (1) that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there is a causal link between the protected activity and the adverse employment action. Manning v. Chevron Chemical Co., LLC, 332 F,3d 874, 883 (5th Cir. 2003). An adverse employment action has been defined as being an "ultimate employment decision." Id. (citing Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995), cert. denied, 522 U.S. 932 (1997)). An ultimate employment decision includes acts "such as hiring, granting leave, discharging, promoting, and compensating." Dollis, 77 F.3d at 782.
In the present case, Defendant argues that Gallaspy cannot establish a prima facie case of retaliation because he has not been subjected to an adverse employment action after he complained of discrimination and he cannot establish a causal connection between any alleged adverse employment action and his claims of retaliation. Upon review of the evidence, the Court concludes that Gallaspy has provided proof from which a reasonable jury could find that Plaintiff established his prima facie case of retaliation. Defendant argues that it had legitimate business reasons for the actions occurring after Gallaspy returned to the United States. The Court finds Defendant also established a legitimate, non-discriminatory reason for its denial of Gallaspy's request to return to Korea. Plaintiff argues that the stated reason is merely pretextual.
After reviewing all of the pleadings, the Court concludes Gallaspy Gallaspy has provided proof from which a reasonable jury could find that Plaintiff established his prima facie case of retaliation and has raised a genuine issue of material fact that Raytheon's reason for denying Gallaspy's request to return to Korea is a mere pretext for race discrimination. Accordingly, the Court DENIES summary judgment on Gallaspy's claims of retaliation pursuant to Title VII.
C. Applicability of Section 1981 and Chapter 21 to Decisions made in South Korea
Defendant argues that Section 1981 as well as Chapter 21 do not apply to decisions made regarding employment in Korea. Defendant concedes that Title VII prohibits American companies from discriminating against American citizens while employed abroad. However, Defendant argues that while Congress amended the definition of "employee" in Title VII to include citizens employed in foreign countries, Congress did not amend Section 1981 to expand the class of persons protected by that statue to include citizens employed abroad. Further, the "Texas Legislature also did not amend the definition of `employee' in Chapter 21 to include United States, or even Texas residents, employed abroad." [Rec. No. 37].
Plaintiff cites Ellenwood v. Exxon Shipping Co., a United States District Court case from the District of Maine, for the proposition that Chapter 21 should apply to Gallaspy's claims. Plaintiff seems to argue that because the alleged discrimination "may have affected him as an employee in Texas" and it is also affecting his present employment in Texas, Chapter 21 should apply to his claims. Additionally, Plaintiff states that Gallaspy's employment in Korea was in the service of Raytheon's customer, the United States Army, and the actions occurred on United States military bases. Therefore, Plaintiff argues that because United States military bases are within the jurisdiction of the United States, Section 1981 should apply to Gallaspy's claims.
1993 U.S.Dist. Lexis 14877 (D.Me. 1993).
Section 1981 states: "All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts." 42 U.S.C. § 1981(a) (emphasis added). Similarly, section 21.111 of the TCHRA specifies that "[t]his chapter does not apply to an employer with respect to the employment of a person outside this state." TEX. LAB. CODE § 21.111 (Vernon 1996). While the Court recognizes that Title VII was enacted to secure freedom from discrimination in employment and the Chapter 21 "should be liberally construed" to promote these purposes, the Court is guided by the plain reading of the statutes.
See NME Hostpitals, Inc. v. Rennels, 994 S.W.2d 142, 146 (Tex. 1999) (holding "[b]ecause Title VII is remedial and humanitarian in nature, it should be liberally construed, resolving ambiguities in favor of the complainant.").
Title VII did not apply extraterritorially until Congress amended the definition of "employee" in Title VII to include United States citizens employed in foreign countries. 42 U.S.C. § 2000e(f). Before Congress amended the definition, the Supreme Court held Title VII does not apply extraterritorially to regulate employment practices of United States employers outside the United States. See Equal Employment Opportunity Commission v. Arabian American Oil Co., 499 U.S. 244, 259 (1991). Although Congress subsequently amended Title VII in the Civil Rights Act of 1991 to extend Title VII's protections to United States citizens working outside of the United States, they chose not to extend the law to cases brought pursuant to Section 1981. See 42 U.S.C. § 1981(a). Additionally, the Texas legislature also has not amended the definition of an "employee" in Chapter 21 to include residents employed abroad. See TEX. LAB. CODE § 21.002(7). As to Plaintiff's assertions that Section 1981 applies to Plaintiff's claims because United States military bases remain within the jurisdiction of the United States, Defendant correctly points the Court to agreements between the United States and South Korea establishing United States bases in Korea are Korean territory. [Rec. No. 61]. In Article IV of their Mutual Defense Treaty, Korea merely granted the United States the "right to dispose United States . . . forces in and about the territory of the Republic of Korea." Mutual Defense Treaty of October 1, 1953, 5 U.S.T. 2368. Therefore, because the United States has merely been granted the use of Korean territory and Section 1981 only extends to "every State and Territory," Section 1981 cannot provide relief for Plaintiff's claims.
Accordingly, neither Section 1981 nor Chapter 21 applies to Gallaspy's complaint of discriminatory removal from his positions in Korea and summary judgment is GRANTED on these grounds.
D. Defendant's Objections to Plaintiff's Summary Judgment Proof
In ruling on this motion, the Court took into consideration "Defendant's Objections to Plaintiff's Summary Judgment Proof" [Rec. No. 51] and "Plaintiff's Response to Defendant's Objections to Plaintiff's Summary Judgment Evidence" [Rec. No. 63] and therefore the Court DENIES parties' objections to the summary judgment evidence relied upon by the Court and DENIES AS MOOT the objections to evidence upon which the Court did not rely.
IV. CONCLUSION
"The very mission of the summary procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." John Hancock Mutual Life Ins. Co. v. Johnson, 736 F.2d 315, 317 (5th Cir. 1984). On Plaintiff's claims pursuant to Section 1981 and Chapter 21, Defendant has demonstrated that it is entitled to judgment as a matter of law because there is no genuine issue as to any material fact. On Plaintiff's claims of retaliation and discrimination pursuant to Title VII, Defendant has not demonstrated it entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED that "Defendant's Motion for Summary Judgment" [Rec. No. 37] is GRANTED IN PART AND DENIED IN PART.