Summary
characterizing prima facie burden as "minimal"
Summary of this case from Siddiqui v. Autozone W., Inc.Opinion
No. 3:99-CV-0135-D
December 6, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Deepak K. Khanna ("Khanna") sues defendant Park Place Motorcars of Houston, Ltd., Park Place Motorcars, and Park Place Porsche Audi (collectively, "Park Place") alleging that Park Place terminated his employment based on his national origin and race, retaliated against him, and tortiously interfered with his employment with a subsequent employer. Park Place moves for summary judgment. The court denies the motion for the reasons that follow.
Khanna and Park Place move to strike parts of the other side's summary judgment evidence, Except where otherwise noted, the court has not addressed these objections, either because it has not relied on the objectionable evidence or because it has concluded that the evidence, even if admissible, is insufficient to support entry of summary judgment.
I
From January 1997 until February 1998 Khanna worked in the pre-owned Porsche Audi Sales Department at Park Place, According to Khanna, Tripp Steele ("Steele"), Khanna's Manager, made derogatory comments about the race and national origin of several Park Place customers and employees. See P. App. 2. Khanna alleges that in August or September 1997, he complained about Steele's behavior to Neill Grossman ("Grossman"), Park Place's General Manager. See id. at 3. Grossman did not take any action regarding Khanna's complaint. See id. Several months later, in December 1997, Khanna complained to Ken Schnitzer, Park Place's President. See id.
Park Place argues that Khanna's affidavit should be stricken from the record because it lacks an official notary seal. See Ds. Br. Supp. Mot. to Strike at 3-5. Because the affidavit is admissible under the relaxed standards that apply to evidence adduced by a party who opposes summary judgment, see Brady v. Blue Cross and Blue Shield of Tex., 767 F. Supp. 131, 135 (N.D. Tex. 1991) (Fitzwater, J.), the court denies the motion to strike.
Park Place also objects to parts of Khanna's affidavit as conclusory allegations or reflecting mere subjective beliefs that are unsubstantiated by personal knowledge. See Ds. Br. Supp. Mot. to Strike at 5-8. Because the statements and opinions are rationally based on Khanna's personal knowledge and are not impermissibly conclusory, the court denies this ground of the motion to strike.
On December 6, 1997 Steele placed Khanna on probation for failing to meet his sales quota. Park Place policy required that if a salesperson failed to sell an average of seven cars per month over a 90-day period, he would be placed on probation. See Ds. App. 34. During the 60-day probationary period, the salesperson was required to sell seven cars each month. If he failed to meet this standard, he would be terminated. Park Place put Khanna on probation after he maintained only a 5.33 sales average during September, October, and November 1997. In December 1997 Khanna sold only five cars. See Id. at 72.
Under Park Place's policy, Khanna's December sales performance would have been grounds for termination. See id. at 34. Park Place nevertheless extended Khanna's probationary period an additional 30 days in light of Khanna's December complaint about Steele's conduct, See id. at 25. In January 1998 Khanna met his quota by selling seven cars, but in February he made only three sales. See id. at 72. Park Place terminated Khanna's employment on February 28, 1998. See P. App. 6,
Khanna sues Park Place for race discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code Ann. §§ 21.001-21.405 (West 1996 Supp. 2000); national origin discrimination, in violation of Title VII and the TCHRA and retaliation, in violation of Title VII, § 1981, and the TCHRA.
Following his termination from Park Place, after working at another dealership from May 5, 1998 until September 12, 1998, Khanna accepted an offer of employment at Auto Showcase. Ds. App. 11, 69. He alleges that in May 1999, Steele called the General Manager of Auto Showcase and informed him that Khanna had filed suit against Park Place and that Khanna was a troublemaker. See P. 1st Am. Compl. ¶ 15. On May 22, 1999 the Auto Showcase General Manager terminated Khanna. See id. Khanna then obtained leave of court to amend his original complaint to include claims for tortious interference with contract and/or business relations. See P. Br. at 33.
II
The court considers first whether Park Place is entitled to summary judgment dismissing Khanna's claims for race and national origin discrimination under Title VII, § 1981, and the TCHRA.
A
The familiar burden shifting framework applicable to Title VII claims for race and national origin discrimination also applies to Khanna's § 1981 racial discrimination claim and his TCHRA claim. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir 1996) ("Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII."); see also Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999) (noting that law governing TCHRA and Title VII is identical). Under this burden shifting framework, as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), Khanna first must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000). Once he meets this burden, Park Place is obligated to produce a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion, and involves no credibility assessment. See id. Once Park Place meets this production burden, the presumption of discrimination disappears. Id. Khanna must prove by a preponderance of the evidence that the legitimate reasons offered are not the true reasons but are a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that be was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, Khanna need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (ND. Tex. 1990) (Fitzwater, J.).
The court's analysis of Khanna's Title VII cause of action also applies to his § 1981 and TCHRA claims. "Because these three statutory bases are functionally identical for the purposes of [plaintiff's] claims, it would be redundant to refer to all of them." Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
B 1
To defeat Park Place's motion for summary judgment, Khanna first must establish a prima facie case of discrimination. Khanna must demonstrate that he (1) was a member of a protected class; (2) was qualified for his position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class. Shackelford, 190 F.3d at 403. Park Place argues that Khanna has failed to meet the fourth element of the prima facie case because he has not shown that he was replaced by someone who is not Indian. See Ds. Br. at 6. Steele admitted in his deposition that he was certain that Park Place replaced Khanna after he was discharged. See P. App. 71. In Park Place's interrogatory answers, it concedes that it has not hired anyone of Khanna's race since Khanna was discharged. See id. at 95-100. In light of this evidence, Khanna has met the prima facie case requirement for his race discrimination claim.
Concerning Khanna's claim of national origin discrimination, Park Place contends that because its interrogatory answer addresses only the racial identity of its employees, Khanna cannot point to evidence demonstrating that he was replaced by someone who is not from India. See Ds. Rep. at 2-3. Under a rigid application of the prima facie standard, Khanna's national origin discrimination claim would not be able to survive summary judgment on this issue because there is no explicit evidence that he was replaced by a non-Indian. In Nieto v. LH Packing Co., 108 F.3d 621 (5th Cir. 1997), however, the Fifth Circuit reaffirmed that the failure to meet the replacement requirement of the prima facie case is not necessarily fatal to a plaintiff's Title VII claim. See id. at 624 n. 7 (citing Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985)). Considering this standard, and absent any evidence or allegation that Park Place did replace Khanna with an employee from India, the court declines to hold at the summary judgment stage that Khanna has failed to establish a prima facie case of national origin discrimination.
The panel criticized recent cases within the circuit that relied on a rigid interpretation of the replacement requirement to dismiss a plaintiff's claim, stating that they had ignored precedent. See id. (citing Singh v. Shone's Inc., 64 F.3d 217, 219 (5th Cir. 1995)). Where two Fifth Circuit decisions conflict, "the earlier opinion controls and constitutes the binding precedent in the circuit." Boyd v. Puckett, 905 F.2d 895, 897 (5th Cir. 1990). The earlier precedent on this issue holds that the replacement requirement should not be applied strictly. See Hornsby, 777 F.2d at 246-47.
2
Park Place is now obligated to produce evidence of a legitimate, nondiscriminatory reason for terminating Khanna's employment. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-93 (5th Cir. 1996). To satisfy this burden of production, Park Place offers evidence of its probation policy and Khanna's deficient sales performance. Specifically, Park Place maintained a policy under which salespersons were required to sell an average of seven cars per month over any 90-day period. See Ds, App. 8-9. After Khanna averaged 5.33 sales per month from September through November 1997, Park Place placed him on probation. See id. at 9. To satisfy the requirements of the Park Place probation policy, Khanna would have to have sold seven cars in December 1997 and again in January 1998. Although Park Place extended Khanna's probation period after he complained to management, Khanna's performance eventually fell below probation requirements, resulting in his termination. See id. at 72. Based on this evidence, the court concludes that Park Place has met its burden by producing evidence that it terminated Khanna's employment for a legitimate, nondiscriminatory reason.
3
Because Park Place satisfied its burden of production, Khanna is now obligated to produce sufficient evidence to permit a reasonable jury to find that Park Place's nondiscriminatory explanation for its decision is pretextual. Khanna argues that even if Park Place maintained a probation policy and sales requirements, it applied the policy in a discriminatory manner. The court concludes that a reasonable jury could find that Park Place's explanation is pretextual.
First, Park Place's requirement that salespersons maintain a seven car average over 90 days is arguably inconsistent with other aspects of its sales guidelines. For example, Park Place paid a bonus of $300 to salespersons who sold seven cars in any given month. See P. App. 73-74. Khanna posits that it is inconsistent for Park Place to claim that salespersons were required to sell an average of seven cars per month to retain their employment while simultaneously paying bonuses to those employees who met the minimum standard. See P. Br. at 15. Similarly, Khanna has adduced evidence that Park Place had established a monthly performance goal of 30 to 35 sales per department. See P. App. 45-46. During Khanna's employment, his department included six people. See Id at 46. If each employee had sold the minimum number of cars to retain employment, department sales would have totaled 42 cars. These apparent incongruities, together with Park Place's lack of an explanation for them, would permit a reasonable jury to find that Park Place's putative rationale for terminating Khanna is pretextual.
Second, Khanna has produced evidence that suggests that Park Place did not apply the sales requirements and probation policy to all employees. Park Place records demonstrate that several employees — including five salespersons who, like Khanna, reported to Steele — repeatedly fell below the required 90-day average. See P. App. 120-23. As Khanna notes, Park Place put underperforming salespersons on probation only 22% of the time. See id. 118-123. Furthermore, three Caucasian salespersons who reported to Steele were never placed on probation despite several periods during which they failed to meet the required 90-day average. See id.
Based on this evidence of Park Place's inconsistent application of the sales requirements and probation policy, the court concludes that a reasonable jury could find that Park Place's explanation for Khanna's termination is pretextual and that its true motivation was discriminatory intent. Accordingly, the court denies Park Place's motion for summary judgment on Khanna's Title VII, § 1981, and TCHRA race discrimination claim and his Title VII and TCHRA and national origin discrimination claim.
III
The court next considers Khanna's retaliation claim. To establish a prima facie case of retaliation, Khanna must demonstrate that (1) he was engaged in a protected activity; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment decision. Shackelford, 190 F.3d at 407-08. This prima facie case gives rise to an inference of retaliation, and the burden of production then shifts to Park Place, who must articulate a legitimate nondiscriminatory reason for the challenged employment action. See id. at 408. To survive summary judgment, Khanna must then make a showing sufficient to allow a reasonable factfinder to conclude that Park Place's rationale is pretextual. See McDonnell Douglas, 411 U.S. at 801-03.
Park Place maintains that Khanna cannot satistfy the elements of a prima facie case and cannot prove that Park Place unlawfully retaliated against him. The court disagrees. Khanna meets the first two elements of the prima facie case, He complained to management and was later fired. Khanna also meets the third element. Khanna has adduced evidence that after he complained in early December 1997, Park Place placed him on probation. See P. App. 4. Park Place disputes Khanna's version of the sequence of these events, stating that it placed Khanna on probation approximately one week before he complained. See Ds. Br, at 8; Ds. App. 25. This disputed fact issue is material to Khanna's prima facie case because Park Place maintains that it terminated Khanna for failing to meet the terms of his probation. If Park Place put Khanna on probation immediately after he complained to management about Steele's allegedly-racist comments, Khanna would be able to demonstrate a causal connection between his protected activity and his termination. A plaintiff's initial burden in alleging a prima facie case of retaliatory termination is minimal. The initial requirement that a plaintiff show a "causal link" is less stringent than "but for" causation that a jury must find. See Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996). Moreover, "[c]lose timing between an employee's protected activity and an adverse action against him may provide the `causal connection' required to make out a prima facie case of retaliation." Swanson v. General Sen's. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)). A reasonable jury could find that Khanna has met his prima facie burden.
The court holds that Khanna has also presented evidence that creates a genuine issue of material fact on the issue of "but for" causation. Park Place asserts that it had a legitimate nondiscriminatory reason-Khanna's failure to meet the terms of his probation — for terminating Khanna. The court has already considered this explanation under its discussion of Khanna's discrimination claims, see supra § II(B)(2)-(3), and holds that although Park Place has met its burden of production, a reasonable jury could find that the explanation is pretextual. Therefore, the court denies Park Place's motion for summary judgment on Khanna's retaliation claim.
IV
Park Place moves for summary judgment dismissing Khanna's tortious interference claim.
After Park Place discharged Khanna, he eventually obtained employment at Auto Showcase. See Ds. App. 11, 69. In the "Factual Background" section of his first amended complaint, Khanna alleges that Steele called the General Manager of Auto Showcase, told him of Khanna's lawsuit, and described Khanna as a "troublemaker." See P. 1st Am. Compl. ¶ 15. Khanna incorporates these facts by reference and alleges that they "constitute tortious interference with the business relations and/or contract between Khanna and his subsequent employer." Id ¶ 33. Arguing that Khanna's "subsequent employer" was the first dealership at which he worked, not Auto Showcase, Park Place argues that Khanna has no evidence that it interfered with Khanna's employment at the first dealership. Khanna concedes this point and argues instead that his tortious interference claim clearly refers to his employment with Auto Showcase, not the first dealership. The court agrees. Although Khanna's reference to his "subsequent" employer is not in all respects clear, he does incorporate by reference his factual allegations, which do not even mention the first dealership. Because Park Place has not demonstrated that it is entitled to summary judgment on Khanna's claim that it tortiously interfered with his Auto Showcase employment, the court denies the motion.
* * *
Park Place's July 5, 2000 motion for summary judgment is denied.