Opinion
Civil Action No: 00-3364 Section: "J" (5)
January 17, 2002
MEMORANDUM OPINION
Before the Court is the Motion for Summary Judgment filed by defendant, Wal-Mart Stores, Inc. Plaintiff opposes the motion. The motion was set for hearing on briefs on Wednesday, December 5, 2001; on January 2, 2002, the Court entered an order granting the motion for reasons to be filed subsequently. Following are the Court's reasons for granting defendant's motion.
FACTUAL BACKGROUND
Plaintiff Debra Mills began her employment in 1988 as a cashier with Defendant's Sam's Club store in New Orleans East, Louisiana. Within two years, she advanced to the position of Demonstration ("Demo") Coordinator. As Demo Coordinator, Plaintiff supervised up to twelve in-store product demonstrators, who provided samples or displays of products in order to entice customers to purchase the products. Because these demos benefitted vendors, vendors sponsored the demonstrations, and Sam's Club billed the vendors for the cost of the products consumed during a demonstration as well as a flat-rate for the demonstration itself. Plaintiff's job as Demo Coordinator included scheduling the demonstrations, assigning demos to demonstrators, completing paperwork, and billing vendors for the demonstrations they sponsored.
Plaintiff worked only at the New Orleans East store, and she consistently received positive evaluations from her managers. However, in May 2000, when Plaintiff's supervisor Ronald Pfeiffer received a complaint about Plaintiff's showing preferential treatment towards some of the demonstrators, Pfeiffer questioned each of the demonstrators individually about the general conditions of the department. When Pfeiffer questioned Plaintiff's assistant, Linda Hernandez, Hernandez asked whether it was appropriate to bill vendors for demonstrations that were never performed and informed him that Plaintiff was currently doing just that — billing vendors for video demonstrations that were never displayed or live demonstrations that never occurred.
Pfeiffer informed Hernandez that this practice was inappropriate and met with Plaintiff on May 18, 2000 to discuss her billing vendors for non-performed demonstrations. Plaintiff acknowledged that she had billed vendors for demonstrations that had never been performed. Pfeiffer then concluded after discussing the situation with the other managers, that while he would be justified in immediately terminating Plaintiff for breaching the company's integrity with its vendors, in light of Plaintiff's twelve year tenure and favorable prior performance, they should instead assign Plaintiff a "decision-making day" and demote Plaintiff to cashier, although without reducing her pay rate.
According to the testimony of Ronald Pfeiffer, Plaintiff's supervisor, at a decision-making day, the supervisor informs the employee of the gravity of his or her infraction. The supervisor then gives the employee a paid day off to consider the offense and follow up with a written plan of action from the employee demonstrating his or her plan to correct the problem. If the employee subsequently continues or repeats the improper action, the employee is terminated.
On May 30, 2000, Pfeiffer and Assistant Manager Novella Hatton informed Plaintiff of management's decision to demote her and assign her a decision-making day. Pfeiffer instructed Plaintiff at that meeting to provide Hatton with her availability for the cashiering schedule. Plaintiff disagreed with the plan of action and contacted the "home office" to appeal the decision. However, on June 9, Plaintiff was notified that the District Manager affirmed Pfeiffer's decision. From June 9 until June 17, when Plaintiff picked up her last paycheck, she had no contact with the store; she later testified that she neither called the store to check in nor heard from the store regarding her schedule. When Plaintiff picked up her check on June 17, Pfeiffer officially terminated Plaintiff for job abandonment, since she had accumulated three consecutive unreported absences from work.
On July 12, 2000, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that Defendant discriminated against her race in its demoting and discharging her. The EEOC was unable to conclude that Defendant was in violation of Title VII of the Civil Rights Act of 1964 and issued Plaintiff Notice of her Right to Sue. Plaintiff filed the instant action on November 13, 2000, alleging race discrimination and, for the first time, retaliation.
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper once the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). This language "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; 2552. While the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, once that is satisfied, the burden shifts to the non-movant, who must then come forward with specific facts to show that there is a genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54).
The party opposing summary judgment and who bears the burden of proof at trial must then go beyond the pleadings and by affidavits or depositions, answers and admissions in the record, designate specific facts showing the existence of a genuine issue for trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2253. "Neither conclusory allegations nor `unsubstantiated assertions' will satisfy the nonmovant's burden."Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996).
DISCUSSION
1. Title VII Discrimination Claim
Plaintiff brings her race discrimination suit pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The U.S. Supreme Court has clearly established the allocation of the burden of proof in actions such as this one. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). When a plaintiff alleges that her employer has discriminated against the plaintiff's race, the plaintiff must first present to the court a prima facie case of discrimination.McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. A plaintiff presents a prima facie case of discrimination by showing that she (1) is a member of a protected class; (2) was qualified to hold the position of her employment; (3) was discharged or subject to an adverse employment action; and (4) was replaced by someone who is not a member of that protected class. Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 254 (5th Cir. 1990) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 254 n. 6, 101 S.Ct. 1089, 1094 n. 6 (1981)).
If the plaintiff satisfactorily presents her prima facie case, the burden then shifts to the defendant employer to provide a "legitimate, nondiscriminatory reason" for its action against the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer offers a valid reason, the burden swings back to the plaintiff, and the plaintiff then has an opportunity to rebut this proffered reason with evidence that the employer's reason is merely a "pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
In the case at bar, this Court assumes Plaintiff has demonstrated a prima facie showing of discrimination, and at base, she satisfies the minimal requirements: as a black woman, she is a member of a protected class; considering positive evaluations, she was qualified to do her job; she was demoted and fired; and her employer filled the position with a white woman.
Shifting the burden to her employer, Defendant has provided a rational, nondiscriminatory reason for both adverse employment actions against Plaintiff. With respect to Plaintiff's demotion from Demo Coordinator to cashier, which was made without a pay reduction, Defendant states that Plaintiff was demoted because she knowingly compromised the integrity of Defendant's good name with its vendors by knowingly billing vendors for services that were never rendered and never even attempted. As Defendant suggests, if true, this conduct would not only be good cause for demotion but also sufficient grounds for Defendant to terminate Plaintiff.
This Court accepts Defendant's rebuttal as a rational, nondiscriminatory explanation, and therefore, the burden shifts back to the Plaintiff for proof that Defendant's cause is pretextual. Plaintiff has failed to carry this burden. She claims that her actions should not have been subject to demotion because her employer knew that she was billing vendors for partially completed or interrupted demonstrations and had never previously reprimanded her for this billing practice. Plaintiff claims that her supervisors were also responsible for interrupting the demonstrations by transferring the demonstrators to other duties, such as cashiering, and these supervisors were never disciplined. Plaintiff also claims that her supervisors never directed her to pro-rate the charges for the interrupted demonstrations. However, with this line of argument, Plaintiff misses the mark. She was not demoted for billing for partial demonstrations; she was demoted for billing vendors for demonstrations that never took place.
As evidence of genuine issues of fact, Plaintiff has submitted statements from current and former Sam's Club employees who claim that supervisors knew demonstrations would be interrupted so that demonstrators could work in other areas. The Court notes that while many of these statements are incompetent summary judgment evidence, consisting of photocopied, unnotarized statements that were never served upon opposing counsel, these statements do not support Plaintiff's assertion that Defendant's cause for demotion was pretextual. To reiterate, Plaintiff was demoted because she billed vendors for demonstrations that never occurred; Defendant did not address her billing for interrupted or suspended demonstrations. Her supervisor specifically addressed with Plaintiff her billing for non-existent demonstrations as the cause for Sam's Club taking disciplinary action. Accordingly, Plaintiff has failed to provide this Court with evidence raising a genuine issue of material fact as to the cause for her demotion, and in this case, summary judgment is appropriate.
Defendant also provides a rational, nondiscriminatory cause for ultimately terminating Plaintiff: she stopped coming to work despite instructions to provide a schedule to Defendant for hours she would be available to perform duties as a cashier. From May 30, 2000 until June 9, 2000, when Plaintiff received notice from the District Manager affirming her demotion, Plaintiff had no contact with Defendant. From June 9, 2000 until June 17, 2000, Plaintiff failed to contact her employer, and Plaintiff herself admitted that she knew of no situations where employees with more than three unreported absences were retained. She knew her employer's policy was to terminate employees who abandoned their jobs. She also knew that Defendant defined job abandonment as three days of unreported absences.
Furthermore, Plaintiff's employer presents a plausible, nondiscriminatory reason for hiring Plaintiff's replacement, Brianna Morrison. Out of the six applicants, Ms. Morrison was the only applicant with managerial experience, and her enthusiasm for the position distinguished her from the other applicants as well. And while Plaintiff was replaced as Demo Coordinator, Plaintiff's employer conditioned her termination by noting she would be eligible for rehiring.
Because Defendant has provided a nondiscriminatory reason for terminating Plaintiff and hiring a white replacement, Plaintiff now has to point to evidence which creates a genuine issue of fact demonstrating the pretext behind her employer's reasoning. However, Plaintiff has failed to carry her burden of proof. She admits to her unreported absences, and she testified that she knew of the store's policy to terminate employees who had more than three consecutive unreported absences. She has also testified that she thought her manager Mr. Pfeiffer had treated her fairly throughout her employment; she never previously complained of racial discrimination throughout her twelve years of employment with Defendant. In fact, after her demotion, Plaintiff acknowledges in a letter to Wal-Mart's Chairman of the Board that she received favorable evaluations and merit raises from her supervisors throughout her tenure. Furthermore, when management learned of her wrongfully billing vendors for demonstrations never started or attempted, she was not immediately terminated, which was an option available to her manager, but her employer attempted to negotiate alternative terms of employment which would discipline her misconduct while reflecting her previously unblemished record.
As with her evidence that her demotion was racially discriminatory, Plaintiff has failed to satisfy the evidentiary burden of disputing Defendant's nondiscriminatory reasoning for firing her. The statements provided by Plaintiff do not address her absences, which were the basis for her termination. These unsworn statements of former and current Sam's Club employees merely tell this Court that management knew that demonstrators would often be called from their demonstrations to work in other areas. The statements do not provide sufficient evidence that Defendant's proffered reason for Plaintiff's termination was pretextual.
Plaintiff also proffers the unsworn statement of one of Plaintiff's former managers, Joe Mangino, who suggests that Plaintiff's race motivated Defendant to terminate her. However, Mangino's statement alone does not sufficiently suggest that Defendant's proffered cause for termination was pretextual, especially in light of the fact that Plaintiff admittedly stopped showing up for work and Defendant cites this reason alone for her termination. Regardless of whether Plaintiff was pursuing her grievance with Defendant from her home, she still had an obligation to show up for work. Because she admittedly failed to do so, Defendant had a rational, nondiscriminatory reason for terminating her.
As a matter of law, Plaintiff's conclusory allegations of racial discrimination do not raise genuine issues of material fact concerning the issues on which Plaintiff bears the burden of proof at trial. Because Plaintiff has not carried her burden of proof with respect to her claims of racial discrimination, Defendant's Motion for Summary Judgment should be granted.
2. Title VII Retaliation Claim
In her complaint filed in this Court, Plaintiff raised for the first time a retaliation claim against Defendant. However, a plaintiff must first exhaust administrative remedies before filing a complaint seeking relief under Title VII. Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir. 1997). To that end, a plaintiff must file a charge of discrimination with the EEOC and receive a Right to Sue Notice in order to file suit in federal district court. Id. Furthermore, a district court only has jurisdiction over claims addressed in the EEOC charge. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). In other words, if a plaintiff only alleges racial discrimination in her EEOC charge and receives her Right to Sue Notice only based on that charge, she cannot subsequently add a claim of retaliation under Title VII to her later-filed complaint in federal court. See id.
In the case at bar, Defendant moved for summary judgment on Plaintiff's retaliation claim by arguing that Plaintiff failed to exhaust prerequisite administrative remedies, and moreover that Plaintiff had failed to produce any evidence of retaliation. Plaintiff did not allege retaliation in her EEOC complaint. She only checked the box next to "Race" as the basis for discrimination on her Charge of Discrimination despite the fact that "Retaliation" is an option on the form, and the instructions indicate to "check the appropriate box(es)." Accordingly, Plaintiff has not exhausted the administrative remedies which are procedurally prerequisite to her filing a claim seeking relief for retaliation.
Even assuming that Plaintiff's retaliation claim is not procedurally barred, she has failed to make any evidentiary showing of a prima facie case raising any genuine issue of material fact that could defeat summary judgment. In order to present a prima facie case of retaliation, "plaintiff must show that: (1) [s]he engaged in a protected activity; (2) [s]he was subjected to an adverse employment action following [her] protected activity; and (3) there was a causal connection between the activity and the adverse action." James v. Medical Control, Inc., 29 F. Supp.2d 749, 752 (N.D. Tex. 1998) (citing Southard v. Texas Bd. of Crim. Just., 114 F.3d 539, 554 (5th Cir. 1997) (applying the standard in a Title VII case)).
Plaintiff has simply failed to allege the elements of a prima facie retaliation claim, and she certainly has not presented evidence that Pfeiffer terminated her in response to her engaging in protected activity, or for any reason other than that she failed to respond to work on three consecutive occasions. This Court also notes that Plaintiff has completely failed to substantively address her retaliation claim in either her Response in Opposition to Defendant's Motion for Summary Judgment or her subsequent Motion to Supplement her Opposition.
It is well-settled law that a plaintiff cannot defeat a motion for summary judgment with conclusory statements and allegations without foundation. Rather, a plaintiff must present some evidence that would raise a genuine question of material fact regarding the issues for trial. Plaintiff has failed to do so.
Therefore;
IT IS ORDERED that defendant's Motion for Summary Judgment (Rec. Doc. 22) should be and is hereby GRANTED, and plaintiff's claims are hereby DISMISSED with prejudice.