Opinion
Civil Action No. 4:98CV5-P-A
May 23, 2000
MEMORANDUM OPINION
This cause is before the Court on the defendants' Motion for Summary Judgment. The Court, having reviewed the motion, the briefs of the parties, the authorities cited and being otherwise fully advised in the premises, finds as follows, to-wit:
FACTUAL BACKGROUND
Bernard Marsalis began working for Bunge Corporation in September 1994 as a manager trainee. The instant suit arises out of Bunge's termination of that employment on October 2, 1997. Marsalis, a black male, alleges that he is the victim of a pernicious pattern of racial discrimination — that he was the target of the defendants' racial bias and that he was denied a pay raise, subjected to various disciplinary measures and, ultimately, terminated as a result of the defendants' discriminatory animus. In addition to asserting claims under Title VII and 42 U.S.C. § 1981, Marsalis also seeks recovery under the following state law theories: wrongful termination, defamation, fraud, and intentional infliction of emotional distress. A summary of the pertinent facts giving rise to the suit follows.
Marsalis was hired as a manager trainee at Bunge's Greenville, Mississippi elevator on September 19, 1994. The person responsible for the hiring decision was Tom Pay, Bunge's district manager. At the time of Marsalis' hire, Humphreys McGee held the position of elevator manager for the Greenville operation. Marsalis' job duties were to include all operational aspects of the facility including the loading and unloading of barges and overseeing the housekeeping and maintenance of the facility. Between September and November 1994, Marsalis was assigned to work in the elevator's scale office. He also began learning the ropes of maintenance and inspection of the facility during this period.
In December 1994, Assistant District Manager Jim Johnson visited the Greenville facility and conducted an inspection. While there, he wrote up a detailed report indicating that the plant was in poor shape from an operational and preventive maintenance standpoint. While there, Johnson held a meeting with Marsalis and McGee to discuss the results of his inspection. At that time, he communicated to Marsalis that he was to assume responsibility for rectifying the identified problems. Some time thereafter, Marsalis learned that his job also included responsibility for updating the company safety manual and ensuring that the paperwork for the company's preventive maintenance program was managed appropriately. In December 1995, McGee resigned his position as elevator manager and Marsalis assumed interim responsibility for the entire Greenville facility until a new manager could be appointed. At that time, Marsalis was fully cognizant of the duties he was expected to execute.
Marsalis was transferred to Bunge's Indianola, Mississippi plant in May 1995. He worked there as a manager trainee until he was transferred back to the Greenville operation at the time of McGee's resignation.
In February 1996, the company filled the vacant manager position with Lawrence Edwards, a long-time Bunge employee. Shortly after his arrival at the plant, Edwards prepared a memorandum outlining what he considered to be problems with the Greenville elevator operation. Among his observations was the statement that McGee had given Marsalis little training and "it shows." He further noted that the crews working under Marsalis had "little direction from management" and did as they pleased.
Although Edwards was ultimately responsible for the plant's operation, his front line duties centered on customer relations and marketing. Marsalis was to remain responsible for the operational aspects of the elevator's business.
Tom Pay, Jim Johnson and Lawrence Edwards are white males.
In mid-March 1996, Edwards conducted an inspection of the elevator in preparation for an upcoming inspection by OPSTAN, Bunge's in-house safety team. He compiled a sizable list of maintenance and housekeeping problems which required redress prior to OPSTAN's March-end inspection. At the same time, he prepared an undisseminated memorandum observing: "Nothing is the way it is supposed to be." He concluded Marsalis had "no idea where to start to get us back on the right track, he is already asking about taking the week end off. The safety files were not even in the right order, much less correct."
While Marsalis and the crew working under him took action to correct many of the deficiencies noted by Edward's, the OPSTAN team still found numerous problems with record keeping, safety and maintenance. Following OPSTAN's visit, Edwards prepared a memorandum commenting on the outcome of the inspection. It noted: "My assistant is unable to see or identify problems that are obvious much less anticipate problems that might occur." "The problem seems to be management leadership. . . ."
In late summer 1996, Edwards noted that the Greenville elevator was behind on its project list and that Marsalis had not attacked the problem. Edwards again noted deficiencies in Marsalis' management style, observing: "I am going to intervene again before it all comes to a halt. There is enough people out there if I juggle the schedule and spread out the time. Bernard is going to have to learn that he is going to have to personally direct and help do much of the daily work. . . ."
On August 27, 1996, Johnson inspected the Greenville facility. He noted numerous deficiencies in plant operations and maintenance. In a meeting with Marsalis and Edwards the following day, Johnson relayed his judgment that the Greenville elevator was poorly run. He reviewed a three page list of problems he identified on his walk through of the plant. Examples of the problems included noisy rollers, bearings "going out" and "already out," grain spills and bad housekeeping in several areas. Johnson advised Bunge district manager Tom Pay of the situation and closed his memorandum with the statement: "End result is that we need a strong superintendent at the GV elevator to manage the people, equipment and operations. Lawrence and Benard [sic] are not getting it done."
His memo to Tom Pay reflected that Edwards was to devise a plan for dealing with the problem. Edwards' plan is contained in a September 1996 document consisting of a breakdown of management duties for the Greenville elevator. It specified the extent of Marsalis' duties and gave an outline of Marsalis' reporting responsibilities.
In January 1997, Bunge management again evaluated Marsalis' performance. Tom Pay found it so lackluster that Marsalis was not approved for an annual salary increase and was placed on a Performance Improvement Plan (PIP). During the January 31, 1997 meeting to discuss the plan, Marsalis' chief concern was not the need to remedy any performance problems, but the fact that he did not get a salary increase. He did, however, express his understanding that a failure to increase the level of his performance would mean discharge.
The Performance Imrovement Plan was an outgrowth of Bunge's affirmative action plan. The purpose of the plan was to actively work with minority employees in order to remedy any performance deficiencies in hopes of avoiding further disciplinary action and/or termination.
Despite the PIP, the operational problems with Bunge's Greenville elevator continued. In March 1997, Edwards forewarned Marsalis of an impending April inspection by OPSTAN. The memorandum included a detailed list of areas to be addressed before the visit and encouraged Marsalis to begin preparations early. On April 1, 1997, Tom Pay conducted a meeting with Marsalis, Edwards and Johnson in attendance. At that meeting, Marsalis was again advised that he was principally responsible for spearheading the maintenance and housekeeping measures necessary to prepare for OPSTAN's visit. On April 4 and 11, 1997, Johnson performed walk through inspections of the Greenville elevator. He prepared and provided Marsalis with an exhaustive list of deficiencies in advance of OPSTAN's visit. Notwithstanding the foregoing, OPSTAN's April 17, 1996 visit to the facility again identified numerous reporting deficiencies, as well as extensive deficiencies with maintenance and housekeeping.
Bunge continued to experience problems with areas over which Marsalis exercised responsibility. In late May 1997, Johnson again visited the Greenville elevator and noted numerous problems: "management of the dust system is not being done," "safety procedures are not being followed while working in bin tank 3," "PMP was not being properly followed. . . ." On another inspection conducted in July 1997, Johnson discovered rollers buried in grain dust and excess grease on bearings also problems which had previously been brought to Marsalis' attention. On August 13, 1997 Johnson participated in an insurance inspection of the Greenville elevator; this inspection revealed numerous housekeeping problems. A September 1997 inspection revealed further housekeeping deficiencies.
Problems with the elevator's dust system had been called to Marsalis attention by Johnson as early as April 11, 1997.
Barge loading operations were not by any means trouble-free either. In late April 1997, Bunge 153 was loaded improperly. Marsalis was reprimanded for the incident and directed to communicate management's dissatisfaction to his crew. In August, a crew under Marsalis' supervision misloaded Bunge 324. Marsalis received a written warning as a result of the problem. On September 8 and 17 respectively, Bunge crews misloaded two more barges.
On September 25, 1997 Pay met with Marsalis to advise him of the company's continued dissatisfaction and advised him that should Marsalis fail to meet job expectations again, he would be terminated. That same day, Barge 875 was improperly loaded. A week later, on October 2, 2000, Pay met with Marsalis and advised he had two choices: resign or face termination. Marsalis refused to resign and Pay advised him of his termination.
Marsalis subsequently filed the instant action seeking legal redress against Bunge, Tom Pay and Lawrence Edwards. The defendants answered, denying all liability. After sufficient time for discovery, the defendants moved for summary judgment. The matter has been fully briefed and the Court is ready to rule.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c), authorizes summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. Of T. for State C. U., 757 F.2d 698, 712 (5th Cir. 1985).
A judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).
Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy Zatzkis, 799 F.2d 218, 222 (5th Cir. 1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Phillips Oil Company, v. OKC Corporation, 812 F.2d 265, 272 95th Cir. 1987). Where "the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, . . . all other contested issues of fact are rendered immaterial. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992).
In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131.
"Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment]." John, 757 F.2d at 708. "Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants' motion for summary judgment," even in light of a Local Rule of the court mandating such for failure to respond to an opposed motion. Id. at 709.
However, once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). In other words, "the nonmoving litigant is required to bring forward `significant probative evidence' demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
While generally "[t]he burden to discover a genuine issue of fact is not on [the] court, (Topalian, 954 F.2d at 1137), "Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention the court must consider both before granting a summary judgment." John, 757 F.2d at 712, quoting Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980).
LEGAL ANALYSIS
A. Title VII Disparate Treatment
Plaintiff asserts that he suffered disparate treatment regarding pay, discipline, training and his ultimate termination. Title 42, section 2000e-2 forbids 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. . . ." 42 U.S.C. § 2000e-2 (a)(1). A plaintiff seeking to recover under Title VII for allegedly discriminatory treatment must first demonstrate a prima facie case under McDonnell-Douglas Corporation. v. Green. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A prima facie case consists of the following elements:
Membership in a protected class;
The claimant is qualified for the position;
The claimant suffered adverse employment action;
4. The claimant's position was filled by someone not of the protected class and/or the claimant was otherwise discriminated against because of his race.
McDonnell Douglas, 411 U.S. at 802. Once a plaintiff establishes a prima facie case, the burden then shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the employment decision. Id. at 802-03. If the employer does so, the burden then shifts back to the plaintiff to produce evidence tending to establish that the reason advanced in support of the decision is a mere pretext for discrimination. Id. at 804, 807. A plaintiff may do so by producing evidence of discriminatory motive or by showing the employer's "basis" for the refusal to hire as unworthy of belief and that, instead, the true reason was unlawful discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 516-519 (1993). The plaintiff at all times retains the ultimate burden of persuading the fact finder that the employment decision was the result of intentional discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, (1981).
In the instant case, defendant concedes for the purposes of summary judgment that the plaintiff can meet the elements of a prima facie case. However, Bunge proffers what it perceives as Marsalis' dismal performance record in support of its decisions with regard to pay, discipline and termination. Therefore, plaintiff bears the burden of coming forward with substantial evidence which tends to establish that the defendant's reason is nothing more than a pretext to hide an improper racial motivation for its employment decisions. The Court has scoured the record and is forced to conclude that the plaintiff has not sustained his burden.
Plaintiff offers no evidence which remotely suggests Bunge's treatment of him had its genesis in racial bias. Marsalis asserts the following factors as evidence of pretext: improper statements, direct statement of bias, covert criticism, scheme and strategy to terminate; nonexistent investigation, intentional misrepresentation, denial of adequate resources to perform the job, acceptance of regulatory violations in order to isolate the plaintiff as the cause for violations, refusal to train, hostile work environment, proof of actual disparate treatment of black employees in the area of pay and status and misuse of employee relations in order to establish evidence of poor performance.
Marsalis' charges are not supported by the record. Instead, they are founded on mere innuendo, speculation and conjecture. For example, plaintiff characterizes Lawrence Edwards' concerns about Marsalis' intellectual ability as "classic racial bias and stereotype." Nowhere does the record evidence suggest a practice of "covert" criticism — Marsalis was informed of Bunge's dissatisfaction with his performance on numerous occasions and given ample opportunity to demonstrate improvement. Plaintiff offers no proof which suggests Bunge employees Pay, Johnson and Edwards were conspiring to have him terminated — nor does plaintiff marshal any evidence which tends to prove that these men sacrificed safety concerns and were willing to face regulatory violations in order to make Marsalis appear incompetent. There is no evidence that Bunge withheld training from Marsalis either — all of the record evidence establishes that the management skills necessary to a successful elevator operation were to be learned "on-the-job." Furthermore, all the record evidence suggests that the other management employees at Bunge went to great lengths to ensure that Marsalis understood that his job required that he effectively manage operations, maintenance and housekeeping. The record is replete with the results of inspections and deficiencies which were brought to Marsalis' attention. Many of these problems were recurring. After nearly three years as a manager trainee, Bunge expected Marsalis to recognize problems and to take appropriate remedial action. There is no evidence which supports a finding that he did so.
This, too, explains why Marsalis' complaints that Edwards wasn't held accountable for the Greenville elevator's operational failures are unavailing. Marsalis was the individual directly responsible for maintenance, housekeeping and elevator operations. Marsalis and Edwards were not so similarly situated as to warrant comparison. Furthermore, plaintiff's contention that Edwards blamed Marsalis for the operational failures in an effort to deflect criticism from himself adds nothing to the pretext analysis.
Marsalis also fails to offer any evidence to support his claim of a racially hostile work environment. His claim that black employees Patricia McKinley and Napoleon Hill were also victims of racial discrimination by Bunge does not suffice in this regard. "Proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination. . . ." Mooney v. Aramco Services Co., 54 F.3d 1207 (5th Cir. 1995). Furthermore, Marsalis again fails to offer any actual evidence regarding McKinley and Hill. A plaintiff cannot escape summary judgment by alluding to evidence which might be adduced at trial. Marsalis' evidence of disparate pay practices is no more probative of his disparate treatment claim than any other proof offered in opposition to the summary judgment motion. Marsalis merely offers a blanket list of black and white employees with their job classification and pay scale; he provides no evidence regarding employee qualification and job performance. The same is true with respect to plaintiff's presentation of a statistical work force analysis set forth in an affirmative action report prepared by Bunge. Plaintiff does not even attempt to show that the numbers cited are in any way statistically significant. See Anderson v. Douglas and Lomeson, 26 F.3d 1277 (5th Cir. 1994).
Based on the evidence before it, the Court concludes that the plaintiff has failed to demonstrate the existence of a triable issue of fact on his claim of disparate treatment. Defendant is entitled to summary judgment on plaintiff's Title VII discrimination claim.
B. Retaliation
Plaintiff also alleges that the adverse employment consequences he suffered were the result of retaliation by Bunge for conduct protected under Title VII. He asserts that he took a strong position with Edwards and the Bunge company on what he considered inequitable treatment of black employees, especially beginning in July 1996. He avers that his relationship with Edwards deteriorated immediately thereafter. In January 1997 he was denied a pay raise and placed on a performance improvement plant. Thereafter, he wrote John Klein, Bunge President, and complained about "immoral and unethical problems" with the management at the Greenville elevator. In response, Gary Grant, a representative from Bunge's corporate headquarters in St. Louis, visited the Greenville elevator and conducted an investigation into Marsalis' accusations. He concluded that they were without foundation. On April 24, 1997 Marsalis followed up by filing a charge of discrimination with the EEOC. Shortly afterwards, Marsalis was reprimanded for an incident involving an improperly loaded barge and given a "decision making day" to allow him time to reflect on whether to continue his employment with Bunge.
Gary Grant was also responsible for reviewing and approving Pay's request that Marsalis be placed on a PIP in January 1997.
This is a part of Bunge's positive discipline program; a decision making day is one of the last in a serious of disciplinary actions; if an employee's problems continue uncorrected, the next action is discharge.
In order to make out a prima facie case of retaliation, a plaintiff must establish "(1) that [he] engaged in protected activity, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action." Jones v. True Temper Sports, 1998 WL 527224, *6 (N.D.Miss. 1998). For purposes of the instant motion, that Court will assume that plaintiff has satisfied the first two elements. However, nothing in plaintiff's opposition to the motion for summary judgment raises a genuine issue of material fact on the causation element. "In order to establish a causal link between the protected conduct and the illegal employment action as required by the prima facie case, the evidence must show that the employer's decision to terminate was based in part on knowledge of the employee's protected activity." Id. (emphasis added). Plaintiff has simply adduced no evidence from which a reasonable jury might conclude that his protected activity motivated Bunge to deny him a pay increase, to take disciplinary measures and to ultimately terminate his employment. Accordingly, the defendant is entitled to summary judgment on this count of the Complaint as well.
Claims under § 1981 proceed according to the same shifting burden analysis employer in a Title VII action. Therefore, Marsalis' § 1981 claim does not survive the defendant's properly supported motion for summary judgment.
D. Defamation
Plaintiff's action for defamation must also fail. In order to prevail on a defamation claim, a plaintiff must establish that the complained of statements are false. Franklin v. Thompson, 722 So.2d 688, 692. In an employment situation, the law extends the employer a qualified privilege for statements concerning the employee's job performance so long as the information is not disseminated to outside parties. Young v. Jackson, 572 So.2d 378, 384 (Miss. 1990). A presumption of good faith accompanies the privilege and an employee seeking to bring a defamation claim against her employer must shoulder the burden of producing evidence of malice and/or bad faith in order to overcome the privilege. Killebrew v. Jackson City Lines, Inc., 82 So.2d 648 (Miss. 1955). See also Esmark Apparel, Inc. v. James, 1991 WL 542241 (N.D.Miss. 1991). Marsalis does not deny that there were operational problems at the elevator; he merely disagrees with Bunge's conclusion that the problems were the result of continued poor performance on his part. Under the facts presented, the Court is constrained to conclude that plaintiff has not produced evidence sufficient to show bad faith. Accordingly, defendants Pay and Edwards are entitled to the protection of the qualified privilege and are thus entitled to summary judgment on the defamation claim.
Should the privilege apply, the truth or falsity of the statements is immaterial.
E. Wrongful Termination
Defendant Bunge is likewise entitled to summary judgment on the plaintiff's claim for wrongful termination. Mississippi law follows the doctrine of "at-will" employment.
Consequently, Bunge was free to discharge Marsalis for any reason, or no reason at all. Perry v. Sears, Roebuck Co., 508 So.2d 1086 (Miss. 1987). The defendants' motion for summary judgment is well-taken and should be granted.
F. Misrepresentation and Fraud
Under the facts before the Court, plaintiff has not set forth evidence from which a reasonable jury could find in his favor on a claim of fraud and/or misrepresentation. Again, plaintiff's entire case is built around speculation and conjecture. Plaintiff has pointed to no evidence, let alone substantial probative evidence, to support a claim of fraud. Boling v. A-1 Detective Patrol Serv., Inc., 659 So.2d 586 (Miss. 1995) ("Fraud is never presumed or inferred."). Defendants are entitled to summary judgment on this count of plaintiff's complaint as well.
G. Intentional Infliction of Emotional Distress
Finally, plaintiff's complaint also includes a claim for intentional infliction of emotional distress. Recovery on such a theory requires that a plaintiff present evidence that the defendant's conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim "Outrageous!"
Wong v. Stripling, 700 So.2d 296, 306 (Miss. 1997). This burden is more difficult to meet in the context of employment disputes. Prunty v. Arkansas Freightways, Inc., 16 F.3d 649 (5th Cir. 1994). See also Jenkins v. City of Grenada, 813 F. Supp. 443 (N.D.Miss. 1993). Plaintiff has failed to come forward with sufficient evidence to withstand defendants' motion for summary judgment on this claim as well.
CONCLUSION
For the above and foregoing reasons, the Court finds that the defendant's Motion for Summary Judgment should be granted. An order will issue accordingly.