Opinion
CIVIL ACTION NO. H-08-1951.
July 8, 2010
ORDER
Pending before the Court is Defendant Orkin Inc.'s Motion for Summary Judgment. (Instrument No. 38).
I.
Plaintiff Wallace McIntyre ("McIntyre" or "Plaintiff") brings suit against Defendant Orkin Inc. ("Orkin" or "Defendant") under Title VII of the Civil Rights Act of 1964 ("Title VII") for employment discrimination based on race and for retaliation. (Instrument No. 22, at 3). Plaintiff seeks monetary damages comprised of back pay, front pay, lost benefits, emotional distress and pain and suffering, prejudgment interest, compensatory damages, punitive damages, attorney fees, and expert fees. (Instrument No. 22-5, at 4).
A.
Plaintiff was an inspector for Defendant, a national pest control services company. (Instrument No. 1, Exh. A at 7). Plaintiff was employed with Defendant for at least a three year time period prior to his termination on November 1, 2005. (Instrument No. 38, Exhibit 1, at 2). During his employment, Plaintiff reported to Sales Manager Steve Findley ("Findley"). (Instrument No. 38 at 9). Findley reported to Branch Manager Bob Cook ("Cook"), and Cook reported to Region Manager Ray Glover ("Glover"). ( Id.). Paul Thordson ("Thordson") was a sales inspector and one of Plaintiff's co-workers. ( Id.).
1.
Thordson, Plaintiff's co-worker, maintained a personal business selling e-books online. ( Id., Exh. 12, at 3). In April 2005, Thordson asked Findley for his opinion regarding Thordson's personal business website. ( Id.). In response, Findley sent Thordson an email from his personal email address to Thordson's personal-business email address. ( Id.). Findley contends that the text of the email stated "You sure are a handsome man! Do you want to meet [?]" ( Id.). This email was allegedly sent after hours and did not concern Orkin's business. ( Id.). Findley contends that "[Thordson] and I worked together for a number of years and were friends. ( Id.). [Thordson] has a good sense of humor and I thought he would find the email funny." ( Id.). Plaintiff states that Thordson told him that Findley was sexually harassing him, and Plaintiff advised Thordson to file a report with Human Resources. (Instrument No. 1, at 7).
However, Defendant asserts that Thordson told Plaintiff that "he did not want, and did not need, to report the email to Orkin's Human Resources Department because he considered it to be a joke." (Instrument No. 38., Exh. 12, at 3). Defendant claims that Plaintiff did not even see the allegedly harassing email until after Plaintiff's employment was terminated on November 1, 2005. Defendant argues that Plaintiff was only told by Thordson that Findley had "asked him out" via an email. ( Id.). Defendant maintains that Plaintiff subsequently harassed Thordson about submitting a sexual harassment report regarding the email. ( Id., Exh. 12, at 3). Plaintiff was subsequently issued a written warning by Defendant, was temporarily suspended, and was told that he could be terminated if such behavior continued. (Instrument No. 38, at 11, Exh. 7). In contrast, Plaintiff claims that this written warning was in retaliation for "his complaints . . . regarding purely operational issues." (Instrument No. 38, at 10).
2.
Between September 2005 and November 2005, Defendant received several customer complaints regarding Plaintiff's representation of Orkin's termite treatments and guarantees. (Instrument No. 38, at 11). Defendant contends that on September 8, 2005, it received a complaint from a customer regarding a treatment sold by Plaintiff. (Instrument No. 38, Exh. 8). The customer claimed that Plaintiff told him that Orkin's dry-wood termite treatment would kill and control subterranean termites. ( Id.). The customer bought the treatment based on Plaintiff's representation. ( Id.). The customer complained when he noticed that the subterranean termites were not being controlled. ( Id.). On September 9, 2005, Cook and Findley met with Plaintiff to discuss the customer's complaint. (Instrument No. 38, at 12). Defendant claims that Plaintiff "admitted to us that he had sold a dry-wood termite treatment to the customer who had a subterranean termite infestation . . . contrary to Orkin's established policy and protocol." (Instrument No. 38, Exh. 12, at 4). As a result of the complaint, Plaintiff received a written warning for "misrepresenting the qualities of Orkin's dry-wood termite treatment." (Instrument No. 38, Exh. 8). Defendant contends that Plaintiff's conduct violated its "Immediate Termination Policy" and "Consumer Policy Pledge." (Instrument No. 38, Exh. 15, Exh. 16). Defendant argues that Orkin reprimanded Plaintiff and "elected to provide [McIntyre] an opportunity to improve his performance," rather than terminate him immediately. (Instrument No. 38, Exh. 8, Exh. 12, at 4).
Defendant alleges that one day later, on September 10, 2005, Plaintiff called Kraus, Orkin's regional Human Resources manager, to question Cook's September 9 reprimand. (Instrument No. 38, Exh. 9). Kraus asked Plaintiff if he had sold dry-wood treatments as a treatment for subterranean termites to any other customer, and Plaintiff said that he had not. ( Id.).
On September 9, 2005, Defendant received another complaint from a customer alleging that Plaintiff had sold her a dry-wood treatment under the representation that it would protect her home from subterranean termites. (Instrument No. 38, Exh. 10). Cook issued Plaintiff another warning on September 12, 2005. ( Id.). Cook warned Plaintiff that he would be fired if he misrepresented the terms of Orkin's services again. ( Id.). Defendant contends that despite multiple warnings to Plaintiff, Orkin received additional complaints from customers "regarding McIntyre's misrepresentation of Orkin's services." (Instrument No. 38, at 14).
On October 6, 2005 and October 12, 2005, a customer complained that Plaintiff told her that her contract carried a five year treatment guarantee when, in fact, it did not. (Instrument No. 38, Exh. 11). On October 22, 2005, another customer complained the Plaintiff was overly aggressive in attempting to sell a dry-wood termite treatment. ( Id.). The customer complained that Plaintiff called him late at night. ( Id.).
On November 1, 2005, Defendant terminated Plaintiff's employment. ( Id.). Defendant argues that despite its multiple warnings, Plaintiff continued to behave unacceptably and in violation of Orkin's policies. (Instrument No. 38, at 14). Defendant contends that "as a result, Orkin believed that McIntyre's behavior would not improve and therefore discharged McIntyre." ( Id., at 15).
B.
After his termination, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 26, 2006. (Instrument No. 23, at 3). The EEOC mailed a Right to Sue notice to Plaintiff on January 22, 2008. ( Id., at 1). Plaintiff filed a lawsuit against Defendant in state court on May 7, 2008, asserting that he was terminated based on his race and in retaliation for opposing discriminatory practices. (Instrument No. 1, at 7). Defendant filed a notice of removal on June 19, 2008. (Instrument No. 1).
On September 8, 2009, Defendant filed a motion for summary judgment alleging that Plaintiff's claims are statutorily time-barred for failure to file a lawsuit within ninety days of receiving notice of a right to sue from the Equal Opportunity Employment Commission ("EEOC"). (Instrument No. 22, at 5-7). The Court denied Defendant's motion for summary judgment on November 12, 2009. (Instrument No. 27).
Defendant filed the instant second motion for summary judgment on February 2, 2010. (Instrument No. 38). Defendant first claims that Plaintiff must file a charge of discrimination or retaliation with the EEOC within 300 days of the alleged discrimination. (Instrument No. 38, at 12). Defendant contends that because Plaintiff filed his charge of discrimination on July 26, 2006, he can only pursue claims based on employment decisions made on or after September 29, 2005, or 300 days before he filed the charge. ( Id.). Defendant asserts that this time limit precludes consideration of any events prior to the September 29, 2005 cutoff date — including Plaintiff's August 31, 2005 suspension, his September 9, 2005 written warning, and his September 12, 2005 written warning. ( Id.). Defendant argues that the only claim filed within the proscribed time period is the one regarding Plaintiff's termination on November 1, 2005, which is subject to dismissal on other grounds. ( Id.).
Defendant also asserts that Plaintiff's claim of race discrimination fails because he cannot establish a prima facie case of racial discrimination. Defendant states that Plaintiff "was not treated less favorably than any non-African American employee under nearly identical circumstances." ( Id., at 14). Defendant also contends that Plaintiff was the only employee "who harassed a co-employee to report a claim that did not exist and engaged in repeated misrepresentations of Orkin's services and guarantees." ( Id.). However, Defendant claims that even if Plaintiff can establish a prima facie case of discrimination, it can articulate a legitimate, non-discriminatory reason for any alleged unequal treatment. ( Id., at 13). If Defendant can show such a reason, Plaintiff must show these reasons are pretexts for discrimination. ( Id.). Defendant argues Plaintiff cannot show that Defendant's reasons for terminating him are pretextual. ( Id.).
Finally, Defendant contends that Plaintiff was not terminated because of the alleged advice Plaintiff gave Thordson, to report the sexually harassing email from Findley. (Instrument No. 38, at 10). Defendant argues that Plaintiff was terminated because of a series of reprimands and complaints, one of which stemmed from Plaintiff's harassment of Thordson to make a complaint to Human Resources regarding the alleged sexually-harassing email. Defendant continues that Plaintiff also received reprimands because of "his misrepresentations of Orkin's services to customers and complaints regarding his overly aggressive sales techniques. He was allegedly terminated after receiving several written warnings and counseling sessions based on his misrepresentations of Orkin's services . . . and his overly-aggressive sales techniques." ( Id., at 7, 9). Defendant claims that despite several opportunities to improve his conduct, Plaintiff did not alter his behavior. ( Id.).
Plaintiff has not filed a response to Defendant's Motion for Summary Judgment.
II.
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also United States v. Arron, 954 F.2d 249, 251 (5th Cir. 1992). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. If the evidence rebutting the motion for summary judgment is only colorable or is not significantly probative, summary judgment should be granted. See id. at 2511; see also Thomas v. Barton Lodge, Ltd., 174 F.3d 636, 644 (5th Cir. 1999). The summary judgment procedure, therefore, enables a party "who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that [specific] fact before the lengthy process continues." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 886-88 (1990).
Under Rule 56(c), the moving party bears the initial burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial and of identifying those portions of the record that demonstrate such absence. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 576, 586-87 (1986); see also Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5th Cir. 1999).
Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 586-87 (quoting FED. R. CIV. P. 56(e)) (emphasis in original). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995). To sustain the burden, the nonmoving party must produce evidence admissible at trial. See Anderson, 477 U.S. at 242; see also Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992) ("To avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue.").
The Court reviews the facts in the light most favorable to the nonmovant and draws all reasonable inferences in favor of the nonmovant. See Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.
III. A.
Plaintiff brings a claim against Defendant under Title VII for race discrimination. (Instrument No. 1, at 6). Plaintiff alleges that "the acts of Defendant constitute discrimination against Plaintiff in the compensation, terms, conditions and privileges of his employment based upon his race. . . ." ( Id.).
Defendant asserts that Plaintiff cannot establish a prima facie case of racial discrimination. (Instrument No. 38). Defendant states that Plaintiff "was not treated less favorably than any non-African American employee under nearly identical circumstances." ( Id., at 14). Even if Plaintiff can establish a prima facie case of discrimination, Defendant argues that it can articulate a legitimate, non-discriminatory reason for any alleged unequal treatment. ( Id., at 13). Defendant argues Plaintiff cannot show that Defendant's reasons for terminating him are pretextual. ( Id.).
Title VII prohibits an employer from "discharg[ing] an individual, or otherwise discriminat[ing] against any individual . . . because of such individual's race." Okoye v. Univ. of Tex. Houston, Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001). Plaintiff's claims of discrimination are governed by the McDonnell Douglas burden shifting test. Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001) (citing McDonnell Douglas Corp., 411 U.S. at 802-04). Under the McDonnell Douglas framework, three factors must be established. First, a plaintiff must establish a prima facie case of discrimination. McDonnell, 411 U.S. at 802. If the plaintiff can establish a prima facie case, a presumption of discrimination arises and the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its actions. Rios, 252 F.3d at 378 (citing McDonnell Douglas Corp., 411 U.S. at 802-04). Finally, if the defendant provides a legitimate, nondiscriminatory reason for its actions, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that "the legitimate reasons offered by the defendant were not [the defendant's] true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000) (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
1.
To establish a prima facie case of intentional race discrimination, a plaintiff must show: (1) that he was a member of a protected group; (2) that he was qualified for the position at issue; (3) that he was discharged or suffered an adverse employment action; and (4) that similarly situated individuals outside of his protected group were treated differently or less favorably. Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005) (citing Rios, 252 F.3d at 378). "Unwarranted termination alone cannot support a claim of racial discrimination." McKenzie v. Lee, 246 F.3d 494, 499 (5th Cir. 2001) (Caucasian Sheriff's deputy who was terminated after using excessive force against an African American suspect did not state a claim of race discrimination under Title VII merely by showing that he was punished more severely than other officers).
In this case, it is undisputed that Plaintiff is an African-American and therefore belongs to a protected group under Title VII. See Guerin v. Pointe Coupee Parish Nursing Home, 246. F. Supp. 2d 488 (M.D. La. 2003) (finding that plaintiff "satisfied the first factor of the [ McDonnell Douglas] test because she is African-American and therefore a member of a protected group"). It is also undisputed that Plaintiff was qualified for the job he formerly held as an inspector for Orkin's Houston branches. (Instrument No. 22, at 3). Additionally, parties do not dispute that Defendant terminated Plaintiff's employment on November 1, 2005. ( Id.). At issue between the parties is the fourth element required to prove a prima facie case under the McDonnell Douglas framework. This element requires that Plaintiff show that similarly situated individuals outside of his protected group were treated differently. Defendant maintains that Plaintiff cannot satisfy the fourth element and argues that summary judgment should be granted in favor of Orkin. (Instrument No. 38, at 19).
To prove the fourth element of his prima facie case, Plaintiff argues that he was treated differently from his Caucasian co-workers. Plaintiff states that he was discharged from his employment for advising a client about a warranty. (Instrument No. 38, Exhibit 13, at 2). Plaintiff states that "White inspectors inform their clients of having warranties, but are not discharged from their job." ( Id.) Also, in his deposition Plaintiff stated that Thordson, a Caucasian sales inspector in a similar position, was having problems with sales, which were reflected in the daily postings of individual sales. (Instrument No. 38, Exhibit 14, at 16). Plaintiff stated "[Thordson's] numbers . . . weren't nearly as productive as some of the others . . . we were wondering, compared to some other people, how he lasted that long." ( Id.).
Defendant contends that Plaintiff was the only employee "who harassed a co-employee to report a claim that did not exist and engaged in repeated misrepresentations of Orkin's services and guarantees." (Instrument No. 38, at 16). Findley, a supervisor at Orkin during Plaintiff's employment, provided a statement that "Mr. McIntyre had been given many warnings about his conduct, but kept receiving similar complaints." (Instrument No. 38, Exhibit 12, at 4). Findley believed that Plaintiff's behavior would not improve and therefore discharged Plaintiff. ( Id.). Findley also stated that "to his knowledge, Mr. McIntyre is the only Houston branch employee to have misrepresented that Orkin's dry-wood termite treatment could be used to treat and prevent termites." ( Id., at 6).
In order to satisfy the fourth element of a prima facie case, "an employee who proffers a fellow employee as a comparator [must] demonstrate that the employment actions at issue were taken `under nearly identical circumstance.'" Lee v. Kansas City S. R.R., No. 08-30444, 2009 WL 1856069, at *4 (5th Cir. June 30, 2009). Employees will not be deemed "similarly situated" if they have different work responsibilities, different supervisors, work for different division of a company, or were subjected to adverse employment actions for dissimilar violations. Id. Instead, "[t]he employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories." Id. Most importantly, "the plaintiff's conduct that drew the adverse employment decision must have been `nearly identical' to that of the proffered comparator who allegedly drew dissimilar employment decisions." Id.
However, while requiring that a plaintiff's conduct resulting in the adverse employment action be "nearly identical" to the conduct of comparators, the Fifth Circuit has nonetheless emphasized that "nearly identical" is not synonymous with "identical." Lee, 2009 WL 1856069, at *4. "[A] requirement of complete or total identity rather than near identity would be insurmountable, as it would only be in the rare of circumstances that the situations of two employees would be totally identical." Id.
The evidence provided by Plaintiff does not establish the fourth element of a prima facie case for intentional race discrimination. Plaintiff asserts that "White inspectors inform their clients of having warranties, but are not discharged from their job." (Instrument No. 38, Exhibit 13, at 2). However, Plaintiff has not responded to Defendant's motion for summary judgment and has not raised a comparator. Plaintiff only references one coworker in his deposition who may be considered a comparator. At Plaintiff's deposition, Plaintiff stated that "Paul Thordson, a Caucasian sales inspector in his similar position, was having problems with sales as was indicated by the daily posting of individual sales." (Instrument No. 38, Exhibit 14, at 16). Findley, Plaintiff's supervisor, confirmed that "Paul Thordson was another sales inspector and one of Wallace McIntyre's coworkers." (Instrument No. 38, Exhibit 12, at 3). Plaintiff maintained that "[Thordson's] numbers . . . weren't nearly as productive as some of the others . . . we were wondering, compared to some other people, how he lasted that long." (Instrument No. 38, Exhibit 14, at 16). However, low sales numbers were not at issue for Plaintiff; the evidence in this case indicates that the reason for Plaintiff's termination was not because of low sales but "due to numerous customer complaints and repeated coaching from management regarding misrepresentation of Orkin's services." (Instrument No. 38, Exhibit 12, at 4). Accordingly, the evidence does not indicate a comparable violation history between Plaintiff and Thordson, or any other employees in a similar position.
Absent proof of actions taken against other employees with the same supervisor and with a comparable violation history, Plaintiff has not established the fourth element of the prima facie case for race discrimination.
2.
Assuming that Plaintiff can establish a prima facie case of discrimination, a presumption of discrimination arises and the burden shifts to Defendant to articulate some legitimate, nondiscriminatory reason for its actions. Rios, 252 F.3d at 378 (citing McDonnell Douglas Corp., 411 U.S. at 802-04).
In this case, Defendant contends that Plaintiff was terminated due to his repeated misrepresentations of Orkin's services and guarantees. (Instrument No. 38, at 14). Specifically, the termination decision states that Plaintiff's repeated violations of company policy shows that he continued to misrepresent Orkin's treatments and contract terms to customers or potential customers. ( Id., Exhibit 11). In addition to the misrepresentation of Orkin's services to customers, Plaintiff was previously reprimanded in December 2003 for losing his composure with another branch employee. ( Id., Exhibit 2). Plaintiff received a suspension notice in August 2005 for continued interference with managements' normal operations of the business. ( Id., Exhibit 7). The August 2005 suspension notice was related to Thordson's complaint that Plaintiff harassed him to file a complaint concerning the email from Findley. ( Id., Exhibit 7).
Based on the foregoing events, Orkin's management decided to provide Plaintiff with numerous coaching and counseling efforts that deviated from Orkin's "Immediate Termination Policy." ( Id., Exhibit 15). Defendant ultimately discharged Plaintiff on November 1, 2005. ( Id.). Defendant has provided documents of Plaintiff's written reprimands, suspension, and termination, which establish valid reasons for Plaintiff's termination. ( Id., Exhibits 1-4, 6-11). Accordingly, Defendant has met its burden to articulate a legitimate, non-discriminatory reason for Plaintiff's termination with Orkin.
3.
If the employer provides a legitimate, non-discriminatory reason for its actions, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that "the legitimate reasons offered by the defendant were not [the defendant's] true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000) (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see also Culwell v. City of Fort Worth, 468 F.3d 868, 873 (5th Cir. 2007) ("The plaintiff must point to disputed facts from which a reasonable factfinder could conclude either that the alternative reason is a pretext or that it was only one of multiple reasons for defendant's conduct, another of which was racial animus."). In determining whether the Defendant's reason for McIntyre's termination was pretextual, "[e]specially relevant to such a showing would be evidence that white employees involved in acts . . . of comparable seriousness . . . were nevertheless retained." McDonnell Douglas, 411 U.S. at 804.
Plaintiff asserts that Defendant's reasons for his termination are pretextual. Plaintiff states in his EEOC charge that he believes he was discriminated against because of his race. He acknowledges that his termination was for violations of Defendant's policies. (Instrument No. 38, Exhibit 13). However, Plaintiff claimed that other Caucasian employees also violated Orkin's policy but were not terminated. ( Id.).
Plaintiff does not dispute the fact that Defendant issued written warning statements to him concerning customer complaints, and that each time a warning was issued, he was warned by management about the possibility of his termination. (Instrument No. 38, at 21). Between September 2005 and November 2005, Orkin received several complaints from customers regarding Plaintiff's representations of Orkin's termite treatments and guarantees. ( Id., at 11). Also, separate customers complained during this same time frame that Plaintiff misrepresented Orkin's applicable guarantees and that Plaintiff was overly aggressive in regards to his sales presentations. ( Id.). Plaintiff was the only employee in the Houston branch who misrepresented Orkin's dry-wood termite extermination and control services. ( Id., at 22). Orkin's Immediate Termination Policy and Consumer Policy Pledge prohibited misrepresentation of Orkins' services, and were established before Plaintiff's misrepresentations. ( Id.).
The Fifth Circuit has held that "[i]t is more than well-settled that an employee's subjective belief that he suffered an adverse employment action as a result of discrimination, without more, is not enough to survive a summary judgment motion, in the face of proof showing adequate nondiscriminatory reason." Douglas, 79 F.3d 1430; see also Grizzle v. Traveler's Health Network, 14 F.3d 261, 268 (5th Cir. 1994) (employees' "self-serving generalized testimony stating her subjective belief that discrimination occurred . . . is simply insufficient to support a jury verdict in plaintiff's favor); Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985) ("We cannot allow subjective belief to be the basis for judicial relief when an adequate nondiscriminatory reason for the discharge has been presented."); see also Dantlzer v. City of Hammond, Louisiana, No. 01-31449, 2002 WL 31718505, at * 1 (5th Cir. Nov. 15, 2002) (upholding district court's finding that plaintiff "could not establish a prima facie case of discrimination on the basis of race, because his evidence was `speculative, vague, generalized, [and] lacking in detail concerning any specific dates or incidence'").
Plaintiff has not shown evidence that Defendant's reasons for his termination are a pretext for discrimination. The evidence provided by Plaintiff is no more than a subjective belief that his termination was based on discrimination. In addition, Plaintiff has not provided any specific evidence which indicates that Defendant's actions were a pretext for discrimination. Furthermore, Plaintiff did not contest that he received coaching sessions with management, or that he was aware of the possibility of termination if his conduct continued. Accordingly, Plaintiff has failed to establish that the reasons offered by Defendant are not its true reasons for termination, but are a pretext for discrimination.
Plaintiff has not established a prima facie case for discrimination. Furthermore, Plaintiff has not met the burden to demonstrate by a preponderance of the evidence that the legitimate reasons offered by Defendant for Plaintiff's termination are a pretext for discrimination. Therefore, Defendant's Motion for Summary Judgment is GRANTED with respect to Plaintiff's Title VII race discrimination claim.
B.
Plaintiff brings a claim against Defendant under Title VII for retaliation. (Instrument No. 1, at 6). Defendant responds that despite Defendant's multiple warnings, Plaintiff continued to behave unacceptably and in violation of Orkin's policies. (Instrument No. 38, at 20). Defendant contends that "as a result, Orkin believed that McIntyre's behavior would not improve and therefore discharged McIntyre." ( Id., at 21).
Title VII retaliation claims are examined under the three step shifting burdens analysis set out in St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747-53 (1993). First, a plaintiff must establish a prima facie case of alleged wrong-doing by a preponderance of the evidence. Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001). Once the prima facie case is established, the defendant has the burden to articulate a legitimate, non-discriminatory reason for the discharge. Id. After the defendant has provided legitimate, non-discriminatory reasons for its action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2106 (2000). "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [defendant's] explanation that the employer is dissembling to cover up a discriminatory purpose." Id. at 2101-02. Although the plaintiff is not required, upon proving that the defendant's reason is a pretext, to further prove that the defendant's employment action was in fact discriminatory, the trier of fact can infer "the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. Plaintiff bears the ultimate burden of proving intentional discrimination at all times. St. Mary's, 113 S.Ct. at 2747-48.
1.
A plaintiff must first establish a prima facie case of retaliation by a preponderance of the evidence. Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001). "To establish a prima facie case of retaliation, an employee must demonstrate that (1) he engaged in an activity that Title VII protects; (2) he was subjected to an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action." Lemaire v. Louisiana, 480 F.3d 383, 388 (5th Cir. 2007) (citing Harvill v. Westward Commc'ns, L.L. C., 433 F.3d 428, 439 (5th Cir. 2005)).
To substantiate a retaliation claim in this circuit, Plaintiff must establish a causal nexus between her protected activity and her termination. Lemaire, 480 F.3d at 388. The standard for establishing the causal link element in a retaliation claim is less stringent than a "but for" standard. Stroud v. BMC Software Inc., No. 07-20779, 2008 WL 2325639, *5-6 (5th Cir. June 6, 2008) (citing Long v. Eastfield Coll., 88 F.3d 300, 305 n. 4 (5th Cir. 1996)). Plaintiff does not have to prove that unlawful retaliation was the sole reason for her termination. Price Waterhouse v. Hopkins, 490 U.S. 228, 241, and n. 7 (1989).
Because employers "rarely leave concrete evidence of their retaliatory purposes and motives," causation is difficult to prove; courts therefore use indicia of causation in Title VII cases. Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994). Factors that courts look to for guidance in determining causation include (1) the employee's past disciplinary record; (2) whether the employer followed its typical policy and procedures in terminating the employee and (3) the temporal relationship between the employee's protected activity and the discharge. Id.; McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) ("Close timing between an employee's protected activity and an adverse action against her may provide the causal connection required to make out a prima facie case of retaliation.") (citing Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)). The Supreme Court has noted that "cases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a prima facie case" require "very close" temporal proximity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The Fifth Circuit has found temporal proximity of up to four months sufficient to show a causal link. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself, does not support an inference of a causal link).
a.
Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, assisting, or participating in any investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); Schacklerford v. Deloitte Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999).
Plaintiff asserts that his recommendation to Thordson to report sexual harassment charges to Human Resources constitutes a protected activity. (Instrument No. 38, Exhibit 13). In his deposition, Plaintiff stated that Thordson approached him and informed him that Findley, their immediate supervisor, had communicated with him via email and had asked him on a date. (Instrument No. 38, Exhibit 14, at 8). Plaintiff stated that he had three fellow co-workers listen in on a phone conversation while Thordson repeated his claim. ( Id., at 9). Plaintiff allegedly encouraged Thordson to file a sexual harassment claim with Orkin's human resources.
The Court finds that Plaintiff's encouragement of Thordson to file a sexual harassment claim with Orkin's human resources does not constitute a protected activity. In encouraging Thordson to file a sexual harassment claim, Plaintiff was not himself making a charge, testifying, assisting, or otherwise participating in a Title VII enforcement proceeding. Moreover, Thordson never even initiated an "investigation, proceeding, or hearing" under Title VII, as is required by 42 U.S.C. § 2000e-3(a). Although Plaintiff allegedly acted in an effort to encourage and assist Thordson in filing a claim of sexual harassment, Plaintiff's actions are not considered protected activity for purposes of his retaliation suit.
b.
Assuming, arguendo, that Plaintiff had engaged in a protected activity, Plaintiff must establish the second element of a prima facie case of retaliation by proving that "a reasonable employee would have found the challenged action materially adverse." Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Smith v. Equitrac Corp., 88 F. Supp. 2d 727, 744 (S.D. Tex. 2000) (plaintiff must present evidence that he suffered an adverse employment action). Adverse employment actions "include discharges, demotions, refusals to hire, refusals to promote, and reprimands." Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 819 (S.D. Tex. 1998) (citing Kocsis v. Mutli-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)). "Suspensions and other disciplinary actions have [also] been found to be adverse employment actions under [section 2000e-2 of] Title VII." McGarity v. Mary Kay Cosmetics, No. 3:96-CV-3413-R, 1998 WL 50460, 3* (N.D. Tex. Jan. 20, 1998).
However, there is no adverse employment action if the employee's "job duties, compensation, or benefits" are unaffected. Hunt v. Rapides Health Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001). For example, a variety of less serious employment actions such as rudeness (even by supervisors), lateral reassignments with equal pay, and undesirable break schedules have been found to be insufficient to constitute an adverse employment action. Aryain v. Wal-Mart Stores Tex. LLP, 534 F.3d 473, 484-87 (5th Cir. 2008).
In our case, Plaintiff asserts that his termination on November 1, 2005 constitutes an adverse action. Regardless of the alleged reasons for termination, a termination of employment is considered an adverse employment. Manuel v. Tex. State Tech. College, 294 Fed. Appx. 852, 854 (5th Cir. 2008). The Court finds that Plaintiff's termination is sufficient to establish the adverse employment action element of a prima facie case for retaliation.
c.
Finally, in order to establish a retaliation claim in the Fifth Circuit, Plaintiffs must establish a casual nexus between his protected activity and the adverse employment actions he alleges. Lemaire, 480 F.3d at 388. Plaintiffs alleging retaliation may establish a causal link in two ways: "either by presenting direct evidence of retaliatory motive or by providing circumstantial evidence that creates a rebuttable presumption of retaliatory motive." Richard v. Cingular Wireless LLC, 233 F. App'x, 337 (5th Cir. 2007) (citing Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414-15 (5th Cir. 2003)). The standard of establishing the causal link element in a retaliation claims is less stringent than a "but for" standard. Stroud v. BMC Software Inc., No. 07-20779, 2008 WL 2325639, at *5-6 (5th Cir. June 6, 2008) (citing Long v. Eastfield Coll., 88 F.3d 300, 305 n. 4 (5th Cir. 1996)). Plaintiff does not have to prove that unlawful retaliation was the sole reason for the adverse employment actions he suffered. Price Waterhouse v. Hopkins, 490 U.S. 228, 241 and n. 7 (1989). Because employers "rarely leave concrete evidence of their retaliatory purposes and motives," causation is difficult to prove; courts therefore use indicia of causation in Title VII cases. Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994).
Factors that courts look to for guidance in determining causation include (1) the employee's past disciplinary record; (2) whether the employer followed its typical policy and procedures in terminating the employee and (3) the temporal relationship between the employee's protected activity and the discharge. Id.; McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) ("Close timing between an employee's protected activity and an adverse action against her may provide the causal connection required to make out a prima facie case of retaliation.") (citing Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)). The Supreme Court has noted that "cases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a prima face case" require "very close" temporal proximity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The Fifth Circuit has found temporal proximity of up to four months sufficient to show a causal link. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself, does not support an inference of a causal link). This Court will focus its analysis on the Plaintiff's termination.
i.
Direct evidence is that which "if believed, proves the fact of discriminatory animus without interference or presumption." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citing Mooney v. Aramco Servs. Co., 54 F. 3d 1207, 1217 (5th Cir. 1995)). Plaintiff bears the burden of proving that there is a "`conflict in substantial evidence' on [the] ultimate issue" of motive. Long, 88 F.3d at 308 (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989,993 (5th Cir. 1996) (en banc)). "Evidence is `substantial' if it is `of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.'" Id. (citing Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)).
Plaintiff states that he was retaliated against for advising Thordson to complain about a sexual harassment violation. (Instrument No. 38, Exhibit 13). Plaintiff asserts that Thordson informed him that Findley sent Thordson an email asking him to go out. ( Id.). Plaintiff advised Thordson to speak to Human Resources about the email. ( Id.) According to Plaintiff, his recommendation to Thordson to file the complaint resulted in his suspension and termination. ( Id.).
However, the evidence shows that Plaintiff not only encouraged Thordson to file a sexual harassment claim, but in fact harassed Thordson to do so. Findley intended the email to be a joke and thought that Thordson would find the email funny. ( Id.). Findley and Thordson had been friends for several years. ( Id.). Furthermore, Thordson complained that Plaintiff had been harassing him to submit a sexual harassment report to Orkin Human Resources regarding the email since April 2005. ( Id.). Thordson stated that he never wanted to report the email to Orkin's Human Resources because he considered it to be a joke. ( Id.). Plaintiff's harassment of Thordson to file a sexual harassment claim regarding the email led to coaching with management. ( Id.).
Defendant contends that in addition the harassment of Thordson, Plaintiff was terminated for receiving numerous customer complaints. (Instrument No. 38, at 11). Between September 2005 and November 2005, Defendant received several customer complaints regarding Plaintiff's misrepresentation of Orkin's termite treatments and guarantees. ( Id.). Specifically, customers reported that Plaintiff misrepresented the effect of the dry-treatment on subterranean termites. ( Id.) Orkin has varying treatment protocols for each type of termites. ( Id.). Plaintiff admitted that he told every client, "if you use chemical at their strength it will kill both subterranean and dry-wood termites." (Instrument No. 38, Exhibit, at 23). Plaintiff concedes that "he eliminated going over the page in the proposal booklet that showed that the chemical penetrates wood." (Instrument No. 38, at 28).
Additionally, Defendant claims that Plaintiff's termination stemmed from his misrepresentation of Orkin's applicable guarantees and his overly aggressive sales presentation. ( Id., at 11). Plaintiff conceded that in October 2005, a customer complained about a guarantee that he sold her. ( Id., at 38). Another customer complained that Plaintiff tried to aggressively sell him an extra Drywood termite contract, which the customer did not think he needed since he had recently purchased a separate contract. (Instrument No. 38, Exhibit 11). Yet another customer complained that Plaintiff had harassed him on the phone at his home late at night. ( Id.).
Plaintiff has failed to raise a "`conflict in substantial evidence' on [the] ultimate issue" of motive. Long, 88 F.3d at 308 (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989,993 (5th Cir. 1996) (en banc)). There is no `substantial evidence' of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.'" Id. (citing Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)). The evidence indicates that Findley's email to Thordson was intended to be a joke. Plaintiff continued to harass Thordson, and this led to a coaching and suspension. However, Plaintiff's harassment of Thordson is not the only event that led to his coaching and termination. Plaintiff's misrepresentation of service contracts and guarantees, coupled with the Plaintiff's aggressive sales tactics and the numerous warnings, caused Plaintiff's termination. Accordingly, Plaintiff has not provided any direct evidence to establish a causal nexus between any protected activity and the adverse employment action.
ii.
Plaintiffs can also use circumstantial evidence to prove a retaliatory motive. Richard, 233 F. App'x at 337. Because employers "rarely leave concrete evidence of their retaliatory purposes and motives," causation is difficult to prove; courts therefore use indicia of causation in Title VII cases. Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994). Factors that courts look to for guidance in determining causation include (1) the employee's past disciplinary record; (2) whether the employer followed its typical policy and procedures in terminating the employee and (3) the temporal relationship between the employee's protected activity and the discharge. Id.; McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) ("Close timing between an employee's protected activity and an adverse action against her may provide the causal connection required to make out a prima facie case of retaliation.") (citing Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)). The Supreme Court has noted that "cases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a prima facie case" require "very close" temporal proximity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The Fifth Circuit has found temporal proximity of up to four months sufficient to show a causal link. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself, does not support an inference of a causal link).
The first factor that the Court will consider in determining causation is the employee's past disciplinary record. McCoy, 492 F.3d at 562. The evidence reveals that between September 2005 and November 2005, Plaintiff received several customer complaints. (Instrument No. 38, at 11). Plaintiff was reprimanded in September 2005 for telling a customer that Drywood treatment would control and kill subterranean termites. (Instrument No. 38, Exhibit 2). Plaintiff was also reprimanded in September 2005 for informing another customer that Drywood treatment was effective in controlling subterranean termites. (Instrument No. 38, Exhibit 10). In October 2005, a customer complained that Plaintiff had misrepresented the terms of a contract. (Instrument No. 38, Exhibit 11). Also in October 2005, another customer informed Cook and Findley that Plaintiff aggressively tried to sell him an extra Drywood termite contract that he did not want. ( Id.). Finally, the Court notes that Plaintiff had several previous disciplinary actions dating back to May 2002 involving the disturbance of sales, interference with management's normal operations, verbal altercations with other employees, and violation of the company driving policy. (Instrument No. 38, Exhibit 1-4, 6-7).
Second, the Court considers whether the employer followed its typical policy in terminating Plaintiff. McCoy, 492 F.3d at 562. Orkin's Immediate Termination Policy, which Plaintiff signed on January 1987, enumerates reasons for termination. (Instrument No. 38, Exhibit 15). Reason number six clearly states that "Willfully misrepresenting or falsifying information about the company to the customer" can lead to immediate termination. ( Id.). Here, the evidence reflects that Plaintiff misrepresented Orkin's termite treatments and guarantees on several occasions between September 2005 and November 2005. (Instrument No. 38 at 11). Defendant provided Plaintiff with numerous opportunities to correct his conduct. ( Id., at 21). Also, Defendant's Consumer Policy Pledge states that "by signing the document that the employee has read and completely understands Orkin's policy of fairness to its customers and prospective customer." (Instrument No. 38, Exhibit 16). The Consumer Policy Pledge notes that any variance from the general rule of Company integrity will be in direct violation of Company directives and shall result in termination of employment. ( Id.). The Consumer Policy Pledge section for sales employees specifically states that a representative will not tell a customer or prospective customer anything that is untrue. ( Id.). In addition, it asserts that sales representatives will not pressure customers into unwarranted contracts. ( Id.).
Here, Plaintiff does not dispute that Defendant issued written warning statements to him concerning customer complaints, and that each time a warning was issued, he was warned by management about the possibility of termination. (Instrument No. 38, at 21). Orkin's management provided Plaintiff with numerous coaching and counseling efforts. ( Id., Exhibit 15-16). Defendant ultimately discharged Plaintiff on November 1, 2005. ( Id.). In sum, Defendants followed its typical policies and procedures in terminating Plaintiff.
Finally, the Court considers the temporal relationship between Plaintiff's protected activity and his discharge. McCoy, 492 F.3d at 562. The Supreme Court has noted that "cases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a prima facie case" require "very close" temporal proximity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The Fifth Circuit has found temporal proximity of up to four months sufficient to show a causal link. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself, does not support an inference of a causal link).
In our case, the evidence shows that Plaintiff first told Thordson to file a harassment claim June 2005. (Instrument No. 38, Exhibit 13). Plaintiff was terminated on November 2005. There is a five month lapse between the first time Plaintiff asked Thordson to file a complaint and the time of Plaintiff's termination. This Court finds that a "five-month lapse, by itself, does not support an inference of a causal link". Raggs v. Miss. Power Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002). Accordingly, the Court finds that the Plaintiff has not established a causal nexus between any protected activity and his termination, and has failed to establish a prima facie case of retaliation.
2.
Assuming that Plaintiff can establish a prima facie case of retaliation, Defendant has the burden to articulate a legitimate, non-discriminatory reason for the discharge. Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001).
Defendant has provided evidence that the reasons for Plaintiff's termination were legitimate and non-discriminatory. As discussed above, Plaintiff was terminated due to his repeated misrepresentations of Orkin's services and guarantees. (Instrument No. 38, at 14). Specifically, the termination decision states that Plaintiff's repeated violations of company policy shows that he continued to misrepresent Orkin's treatments and contract terms to customers or potential customers. ( Id., Exhibit 11). After repeated coaching and counseling, Defendant ultimately discharged Plaintiff on November 1, 2005. ( Id., Exhibit 15). Defendant has provided a copy of Plaintiff's written reprimands, suspension, and termination, which provide valid reasons for Plaintiff's termination. ( Id., Exhibits 1-4, 6-11).
In the Fifth Circuit, an "employer need only articulate a lawful reason, regardless of what its persuasive may or may not be" in order to carry its burden of proffering a legitimate, non-retaliatory reason. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993); see also St. Mary's Honor Ctr., 509 U.S. at 509 ("In the nature of things, the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment. For the burden-of-production determination necessarily precedes the credibility-assessment stage."). Here, Defendant has articulated the reasons for Plaintiff's termination, which include customer complaints and violations of Orkin's policies. Accordingly, Defendant has met its burden to articulate a legitimate, non-discriminatory reason for Plaintiff's termination with Orkin.
3.
After the defendant has provided legitimate, non-discriminatory reasons for its action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2106 (2000). "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [defendant's] explanation that the employer is dissembling to cover up a discriminatory purpose." Id. at 2101-02. Although the plaintiff is not required, upon proving that the defendant's reason is a pretext, to further prove that the defendant's employment action was in fact discriminatory, the trier of fact can infer "the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. Plaintiff bears the ultimate burden of proving intentional discrimination at all times. St. Mary's, 113 S.Ct. at 2747-48.
Plaintiff asserts that Defendant's reasons for his termination were not Defendant's true reasons, but a pretext for discrimination. Plaintiff stated in his EEOC charge that he was retaliated for advising Thordson to complain about sexual harassment. (Instrument No. 38, Exhibit 13).
However, as discussed above, Plaintiff does not dispute that Defendant issued written warning statements to him concerning customer complaints and that he was warned by management about the possibility of termination. (Instrument No. 38, at 21). Defendant presented evidence that Plaintiff was the only employee in the Houston branch who misrepresented Orkin's dry-wood termite extermination and control services. ( Id., at 22). According to Defendant, no other employee made the same type or quantity of misrepresentations. ( Id.). Orkin's Immediate Termination Policy and Consumer Policy Pledge prohibited misrepresentation of Orkin's services, and were established before Plaintiff's misrepresentations. ( Id.).
The evidence provided by Plaintiff does not show that Defendant's legitimate, nondiscriminatory reason for his termination are not its true reason. Defendant has provided signed written statements from management to corroborate its reasons for Plaintiff's termination. Plaintiff has failed to bring forth any evidence demonstrating that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2106 (2000).
Plaintiff has failed to establish a prima facie case of retaliation, and has failed to demonstrate by a preponderance of the evidence that Defendant's reasons for his termination are a pretext for discrimination. Also, Defendant has proven that the reasons for Plaintiff's termination were legitimate and non-discriminatory. Accordingly, Defendant's Motion for Summary Judgment is GRANTED as to the Plaintiff's claim of retaliation under Title VII.
C.
The Court has granted Defendant's Motion for Summary Judgment on Plaintiff's race and retaliation claims under Title VII. Accordingly, the Court need not assess whether Plaintiff's claims are subject to the statute of limitations, as argued by Defendant in its Motion for Summary Judgment.
IV.
Defendant's Motion for Summary Judgment is GRANTED. (Instrument No. 38).
The Clerk shall enter this Order and provide a copy to all parties.