Summary
holding that a claim of race discrimination does not encompass hostile work environment claims
Summary of this case from Dalrymple v. George Regional Health SystemOpinion
Civil No. 3:01-CV-0809-H
July 10, 2002
OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed May 24, 2002; Plaintiffs Response thereto, filed June 13, 2002; and Defendant's Reply, filed June 27, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
This is an employment discrimination case in which the Plaintiff, an African American employee of Defendant United Airlines since 1986, complains that he suffered discrimination when he was asked to take a drug test after damaging an aircraft. On July 31, 2000, Plaintiff brushed against the engine exhaust nozzle of an aircraft while driving a tug and pulling a passenger stand causing approximately $15,000 in damage. (Compl. ¶ 11, Def. App. 33). Plaintiff immediately reported the incident and was told by his supervisor, Alice Richmond, who is Asian, that he would have to take a drug test. (Compl. ¶ 24). Both Parties agree that Plaintiff passed the drug test. The Parties also agree that incident did not result in a reduction in Plaintiffs pay or benefits, although Plaintiff claims that he was uncomfortable working overtime hours after he was required to take the drug test, and suffered a loss of overtime pay. (Resp. at 7). Defendant provides that on August 2, 2000 Plaintiff received a "Report of Non-Punitive Disciplinary Action," in which he received a Level 3 category of discipline. (Def. App. at 68). The Levels range from one to five, with the highest referring to activities that would lead to discharge. (Def Mot. at 6). Plaintiff appealed the Level 3 "write-up" and on October 14, 2000, the hearing officer, Joe Mannix, determined that the discipline level should be reduced to a Level 2. (Dep. App. at 83-84).
On January 22, 2001, Plaintiff filed a Complaint with the Equal Employment Opportunity Commission alleging that he experienced discrimination based on race when he was required to take a drug test and a white female employee who damaged an aircraft was not. (Def App. at 78). Plaintiff received his Right to Sue letter on January 29, 2001. Plaintiff appealed the EEOC's decision to dismiss his case, and on March 1, 2001 the EEOC responded that it would not re-open his case because Plaintiff provided "self-defeating" evidence in stating that some African American and non-African American employees were not required to take the drug test. (Def. App. at 93).
Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., TEX. CONST. art. I, §§ 3-3a, and 42 U.S.C. § 1986. Defendant contends that it is entitled to Judgment because Plaintiff cannot make out a claim under Title VII because he did not suffer an adverse employment action or show that he was treated less favorably in "nearly identical" circumstances as similarly situated white employees. Defendant also argues that Plaintiffs hostile environment claim under Title VII fails because the EEOC charge only alleged racial discrimination and because Plaintiff cannot make out a prima facie case of hostile work environment. Lastly, Defendant contends that it is entitled to judgment for Plaintiffs claim under 42 U.S.C. § 1986 because Defendant is not a state actor, and for Plaintiffs claim under the Texas Constitution, because the Texas Constitution does not provide for a private right of action.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan V. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. Civ. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Servs, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. ANALYSIS
A. Title VII race discrimination claim
Defendant argues it is entitled to judgment on Plaintiffs Title VII claims of racial discrimination. Under Title VII, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [his] compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000 (e)(2)-(a)(1). In a work-rule violation action, the well-known Title VII burden shifting requirements apply. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995). The Plaintiff must show that he (1) belongs to a protected class, (2) performed his job satisfactorily, (3) suffered an adverse employment action, and (4) was treated less favorably than similarly situated employees outside his protected class. See Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997, 1000-01 (7th Cir. 2000); Mason v. United Air Lines, Inc., 274 F.3d 214, 318 (5th Cir. 2001); Mayberry, 55 F.3d at 1090. If Plaintiff meets his burden, the Defendant is required to come forward with a legitimate non-discriminatory reason, which Plaintiff may rebutted only by showing that Defendant's reason is a pretext for discrimination. Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000).
First, Defendant asserts that Plaintiffs claim must fail because subjecting an employee to a drug test does not constitute adverse employment action and therefore, Plaintiff cannot make out a prima facie case of race discrimination. In determining what activity constitutes adverse employment action, the Court notes the prevalent rule in this Circuit that "Title VII is designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Although the Fifth Circuit, has not addressed whether administering a drug test may constitute an adverse employment action under Title VII, the Seventh Circuit has found that administering a drug test so as to harass or humiliate an employee may be an adverse employment action. See Stockett, 221 F.3d at 1001-02. The Court need not reach a conclusion on this issue, however, as Defendant's second argument is determinative of whether Plaintiff can make out a prima facie case.
Defendant contends that even if administering a drug test may constitute adverse employment action, Plaintiff cannot make out a prima facie case because he cannot show that white employees were treated more favorably under "nearly identical" circumstances. See Mayberry, 55 F.3d at 1090. Discipline situations are not considered "nearly identical" where the more favorably treated employees were disciplined by supervisors other than the Plaintiffs. See Wyvill v. United Companies Life Insurance Co., 212 F.3d 296, 305 (5th Cir. 2000); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991). Plaintiff asserts in his Complaint (but does not provide any summary judgment evidence) that four white employees damaged aircraft and were not required to take drug tests. (Compl. ¶ 18-21). Defendant establishes, without contradiction, that none of these employees were supervised by Plaintiffs supervisor, Alice Richmond. (Def. Mot. at 15; App. 40-43, 60). Because the favorably treated employees were supervised by other supervisors, Plaintiff cannot show that the circumstances were "nearly identical" and therefore, cannot make out a prima facie case of race discrimination under Title VII and Defendant is entitled to judgment.
B. Title VII hostile environment claim
Plaintiff alleges that he was subjected to discriminatory acts that created a hostile work environment where (1) it "is generally known that he, rather than others, in the same employee category, in similar circumstance [sic], was required to take a drug test. [He] has suffered emotional distress, humiliation and embarrassment," (Compl. ¶ 25), and (2) that management did not react appropriately to the comments of another employee who stated "I'm tired of these damn niggers. . . ." (Compl. ¶ 28). Defendant moves for summary judgment arguing that Plaintiff failed to exhaust his administrative remedies because he did not raise the hostile work environment claim when he filed his administrative complaint. Plaintiff admits that the EEOC complaint did not contain a hostile work environment claim, but states that the "intake officer or investigator failed to make a mark in a check off box." (Resp. at 6).
The filing of an administrative complaint is a jurisdictional prerequisite to reviewing claims brought under Title VII. See Dollis, 77 F.3d at 781. This Court may review claims not specifically raised in an EEOC complaint if they are like or related to the allegation made in the EEOC complaint. National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). A claim of race discrimination, however, does not encompass hostile work environment claims. See Preston v. Compass Bank, Civ. No. 3:99-CV-2377-M, 2001 U.S. Dist. LEXIS 15018, *17-18 (N.D. Tex. Sept. 24, 2001); Hairston v. Contracta Facility Servs., Civ. No. 3:99-CV-2439-BC, 2001 U.S. Dist. LEXIS 4374, at *19 (N.D. Tex. Apr. 3, 2001). Plaintiffs allegation that the intake officer or investigator made a clerical error is only a conclusory allegation, unsupported by facts and insufficient to meet the burden of establishing a genuine issue of material fact. See FED. R. Civ. P. 56(e); Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995). Because Plaintiff failed to raise the hostile work environment allegation in the administrative process, the Court finds that Plaintiff failed to exhaust his administrative remedies and Defendant is entitled to judgment on this claim.
C. Claims under the Texas Constitution and 42 U.S.C. § 1986
Plaintiff claims that TEX. CONST. art. I, §§ 3-3 a provide a state law cause of action in which Plaintiff can assert a claim of discrimination based on race. The Texas Constitution, however, does not provide for private right of action. See City of Beaumont v. Bouillon, 896 S.W.2d 143, 148 (Tex. 1995). Therefore, Defendant is entitled to summary judgment on Plaintiffs claim for discrimination under the Texas Constitution.
TEX. CONST. art. I, § 3 states "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.
TEX. CONST. art. I, § 3a states "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.
Plaintiff also asserts claims to recover damages under 42 U.S.C. § 1986. Plaintiff cannot proceed with a claim under § 1986 without stating a valid claim under 42 U.S.C. § 1985. See Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir. 2000). Because Plaintiff does not assert a claim under § 1985, Defendant is entitled to summary judgment on this claim.
Title 42 U.S.C. § 1986 provides in relevant part.
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages cause by such wrongful act, which such person by reasonable diligence could have prevented. . . .
IV. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED.
SO ORDERED.