Opinion
3:01-CV-2098-AH
December 4, 2002
MEMORANDUM OPINION AND ORDER
Pursuant to the consents of the parties, the provisions of 28 U.S.C. § 636(c), and the District Court's Order of Reassignment filed on April 2, 2002, came on to be considered Defendant's Motion for Summary Judgment filed on August 1, 2002; Plaintiff's response filed on October 4, 2002; Defendant's reply filed on November 13, 2002; and Plaintiff's reply thereto filed on November 22, 2002. Having considered the relevant pleadings, including the parties' summary judgment briefs and appendices, as well as applicable authorities, the court, for the reasons stated herein, GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment.
I. Factual Background
Horace Pierce, Jr. (hereinafter referred to as "Plaintiff" or "Pierce") brought suit against Defendant Texas Department of Transportation (hereinafter referred to as "Defendant" or "TxDOT") alleging that he was subjected to racially discriminatory practices in the work place in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et. seq. ("Title VII").
Specifically, Pierce claims that he was subjected to racial discrimination in the following forms: denials of promotions and career advancement; unjustified and unmerited performance evaluations; racially offensive remarks; and disparate compensation. Plaintiff also claims that he was retaliated against for making a complaint of racial discrimination. It appears that Pierce has satisfied all administrative prerequisites to filing a claim under Title VII, including filing a charge with the Equal Employment Opportunity Commission ("EEOC"), receiving a right-to-sue letter from the EEOC, and filing suit within ninety days thereafter. Pl.'s Am. Compl. ¶ 3(a).
Plaintiff provides no specificity with respect to his retaliation claim in his Amended Complaint. This is understandable considering Plaintiff's pro se status. As such, based on the parties Amended Joint Discovery/Case Management Plan and from Plaintiff's Response ( see note 4, infra), the court understands Plaintiff's retaliation claim to be premised upon the following: an assignment of a defective truck, a low performance evaluation rating, and a demotion from rotomill crew leader.
Defendant has not challenged Plaintiff on this issue. Plaintiff filed Charge No. 310A00407 (alleging race discrimination based on denial of promotion) and Charge No. 310A11712 (alleging race discrimination and retaliation) with the EEOC on December 14, 1997 and April 28, 2000, respectively ( See Am. Joint Disc/Case Management Plan at pg. 2, ¶ 1).
Pierce began his employment with Defendant in April 1992 as a maintenance technician with the Special Maintenance Office ("SMO") of the Dallas District (Pl.'s Resp. at 1). Mr. Junior Davis ("Davis"), Pierce's supervisor at the SMO, regularly assigned Pierce as either a crew leader or lead worker on various jobs ( Id.) In May 1994, Mr. Norman Thompson ("Thompson") became one of Pierce's supervisors and began assisting Davis with hiring decisions as well as employee performance evaluations ( Id.). Sometime in early 1997, two crew-chief positions, designated as job vacancy number ("JVN") 718K525158, were created by TxDOT for the SMO (Pl.'s Resp. at 2). Thompson, the hiring official for these two positions, after reviewing Johnny Haley ("Haley") and Steven Lawrence's ("Lawrence") applications and allegedly conducting interviews with each, submitted both Haley and Lawrence's names to the Director of Administration for consideration for the crew chief positions (Def.'s Br. at 3-4). After receiving approval by the Director, Thompson offered Haley and Lawrence the crew chief positions ( Id. at 4). On November 25, 1999, Plaintiff filed a complaint with TxDOT alleging racial discrimination and retaliation (Pl.'s App. at Ex. 1 (Pl.'s Aff)). Specifically, Plaintiff alleged that he had been denied pay increases and promotions, suffered disparate treatment with respect to work duties and compensation, and was reassigned as a rotomill crew leader and sent to "drag line" school in retaliation for objecting to having to adjust the brakes-as part of a pre-trip inspection-of the truck he operated and for complaining about the functionality of the braking system in a Volvo truck (No. 4137E) he was assigned to drive (Pl.'s App. at Ex. 4 (Report of Investigation-Complaint No. 00D-T7-C630) ("TxDOT Investigation Report")). Thereafter, Defendant's Office of Civil Rights conducted a formal investigation to consider Plaintiff's claims ( Id). The investigation found as follows: that Pierce had not been denied pay increases or promotions; that although white employees with less seniority and experience received pay increases and promotions, Pierce received the same as well; there was no disparate treatment with respect to work duties; there was insufficient evidence to support Pierce's claim that he had been subjected to racial discrimination; there was insufficient evidence to support Pierce's claim that he had been retaliated against for questioning the brake system in one of the work trucks; and that Davis and Thompson did not comply with the interviewing and hiring procedures with respect to JVN 718K525158 ( Id. at 1) (emphasis added). Later in 1999, Mr. Melvin Kannady ("Kannady"), one of Pierce's co-workers, used a derogatory racial slur — the "N" word — in a conversation (Def.'s Br. at 8). On the advice of Davis, Kannady apologized to Pierce for having used such a word, after which Kannady learned that Pierce had not overheard Kannady's use of the slur ( Id.). Pierce subsequently reported to Davis that Mr. Brown, a TxDOT employee from another section, had also used the "N" word during a conversation ( Id. at 9). Davis contacted Brown's supervisor regarding the use of the racial slur and, thereafter, informed Pierce of the follow-up to his complaint ( Id.).
The office handles special roadway maintenance work in Dallas and surrounding counties (Pl.'s Resp. at 1).
Pierce has labeled his response, which includes various evidentiary attachments, as an appendix. The court construes the first few pages of his "appendix" to be his response and the attached documents to be his appendix, as such, in the interest of clarity, citation will be made to either his "Response" or his "Appendix".
Plaintiff contends in his affidavit that he was further retaliated against — via removal from his position as rotomill crew leader and subsequently replaced-by TxDOT in 2000 for the exact same reasons (Pl.'s App. Ex. 1 (Pl.'s Aff) at ¶ 17).
With respect to the functionality of the braking system of the Volvo truck — it is not clear whether Plaintiff drove one or two Volvo trucks, as such the court will only refer to a single truck — Plaintiff contends that Davis, after receiving notice of Plaintiff's discrimination complaint, refused to allow Plaintiff to operate any other truck beside the Volvo truck which Plaintiff complained had defective brakes (Pl.'s Aff. at ¶ 18). Plaintiff challenges the validity of statements in Thompson's affidavit that he tested the brakes in the Volvo truck and found nothing wrong and, further, that the truck was thereafter sent to Volvo for inspection and found to be "fine" ( see Def's App. at pg. 11, ¶¶ 28-31 ("Thompson's Aff.")) (Pl.'s Aff. at ¶ 19).
II. Analysis
A. Summary Judgment — Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on his pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Anderson, 477 U.S. at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (citation omitted). The party opposing summary judgment is required to identify, specific evidence in the record and to articulate the precise manner in which that evidence supports the opponent's claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation omitted). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support a nonmovant's opposition to the motion for summary judgment. Id. (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)). The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996) (citation omitted). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Mr. Pierce's claims, drawing all factual inferences therefrom and making all credibility determinations related therefrom in his favor. However, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
B. Applicable Law 1. Title VII
Pierce alleges that he was not selected for/promoted to the position of crew chief because of his race; he was subjected to derogatory racial slurs; and that it took him longer to reach the same pay level as certain of his white co-workers. Pierce further alleges that he was retaliated against for filing a complaint of racial discrimination in the following ways: he was assigned to a defective truck; he was given a low rating on a performance evaluation; and he was demoted from his position as rotomill crew leader. Pierce complains that Defendant's actions violated the provisions of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII").
Title VII prohibits covered employers from discriminating against "any individual with respect to [his] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).
2. Analytical Framework
A plaintiff can prove discriminatory animus by either direct or circumstantial evidence. Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000) (citation omitted). If the plaintiff elects the former approach, the plaintiff must offer "direct" evidence of discrimination, defined as "evidence that, if believed, proves the fact of intentional discrimination without inference or presumption." Woodhouse v. Magnolia Hospital, 92 F.3d 248, 252 (5th Cir. 1996) (citation omitted). If a plaintiff produces direct evidence, the burden of persuasion shifts to the defendant to prove that it would have taken the same action regardless of discriminatory animus. Standstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. Oct. 28, 2002) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 252-53, 109 S.Ct. 1775, 1792 (1989).
Alternatively, a plaintiff may prove intentional discrimination via indirect or circumstantial evidence. The indirect approach is governed by the familiar, tripartite burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Standstad, 309 F.3d at 896.
Because Pierce relies on circumstantial evidence, the court follows the burden-shifting framework set forth in McDonnell Douglas. Id. Preliminarily the plaintiff must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000). Once a prima facie is made, a presumption of discrimination arises, and the burden of production shifts to the employer to respond with a legitimate, nondiscriminatory reason for its decision. McDonnell Douglas, 411 U.S. at 802, 935 S.Ct. at 1824. If the employer carries its burden, the presumption of discrimination dissipates and the burden of production then shifts back to the plaintiff to demonstrate that the defendant's articulated reason was merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 2749-50 (1993). Although the McDonnell Douglas framework shifts the burden of production between the plaintiff and the defendant, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093 (1981) (citation omitted).
This burden on the employer is only one of production, not persuasion, involving no credibility assessments. See Tex. Department of Community Affairs v. Burdine, 450 U.S. 248, 255-56 101 S.Ct. 1089, 1094-95 (1981).
An employer is entitled to summary judgment "if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination occurred." See Pratt v. City of Houston, Texas, 247 F.3d 601, 606 (5th Cir. 2001) (quoting Reeves, 530 U.S. at 148, 120 S.Ct. at 2109); see also Vadie v. Mississippi State University, 218 F.3d 365, 372 (5th Cir.) (an employer is entitled to judgment as a matter of law "if the evidence taken as a whole would not allow a [fact-finder] to infer that the actual reason for the [employer's decision] was discriminatory"), cert. denied, 531 U.S. 1113, 121 S.Ct. 859 (2001).
C. Plaintiff's Claims 1. Failure-to-Promote
To establish a prima facie case of discrimination based on failure to promote under Title VII, Pierce must show that: (1) he belongs to a protected class; (2) he was qualified for the job he sought; (3) he was not promoted; and (4) the position he sought was filled by someone outside his protected class. Blow v. City of San Antonio, Texas, 236 F.3d 293, 296 (5th Cir. 2001) (citations omitted).
It is undisputed that Pierce, an African-American, is a member of a protected class; that he was not promoted to the position of crew chief, and that TxDOT selected white employees for the two crew chief positions. However, Defendant claims that Pierce cannot establish a prima facie case of failure to promote on the basis of racial discrimination because he did not apply for either of the crew chief positions which form the basis of his claim. Haynes v. Pennzoil Co., 207 F.3d 296, 301 (5th Cir. 2000) (where an employee failed to establish that he applied for, and was qualified to do, the job which formed the basis of his failure-to-promote claim, the court held that a prima facie case of racial discrimination was not made).
It is not clear whether Plaintiff was qualified for either crew chief position. However, it is unnecessary for the court to consider the same.
While the court is mindful of the general requirement that a plaintiff have filed an application for the job to which he was not promoted, a Title VII failure-to-promote claim may be maintained, even in the absence of an application for the position by the employee, if the employee can show that his application would have been a futile gesture in light of a known and consistently enforced policy of discrimination. Shackelford v. Deloitte Torche, LLP, 190 F.3d 398, 406 (5th Cir. 1999) (citing Teamsters v. United States, 431 U.S. 324, 363-66, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)([a] consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection)).
In Teamsters, the Supreme Court noted that an employer's consistent discriminatory treatment of employees could be communicated in the following ways: the manner in which the employer publicized job vacancies; the employer's recruitment techniques; the employer's responses to casual or tentative inquiries; and by the racial or ethnic composition of that part of the employer's workforce from which members of minority groups were discriminatorily excluded. Id., 431 U.S. at 365, 97 S.Ct. at 1870.
Plaintiff claims that neither of the crew chief positions were posted on the SMO bulletin board or anywhere else at the SMO (Pl.'s Resp. at 2; Pl.'s Aff at ¶ 9). Plaintiff also claims that Davis announced at a staff meeting, early in 1997, that Haley and Lawrence would be promoted to the crew chief positions because they were the most qualified (Pl.'s Resp. at 2). In support of these contentions, Plaintiff proffers the affidavit of Mr. Scott Humphrey, a co-worker at the SMO, wherein Humphrey stated that he did not see any posting for the crew chief positions at the SMO and, further, that Davis did relate at a meeting that Haley and Lawrence were to be selected for the crew chief positions due to their qualifications (Pl.'s App. Ex. 2 ("Humphrey's Aff.") at ¶¶ 3-4). Moreover, Plaintiff contends that he would have applied for the positions had he been made aware of the existence of the same (Pl.'s Aff. at ¶ 11). Plaintiff further contends that during his 10 year tenure with TxDOT, all crew chief and supervisor positions have been filled by white employees (Pl.'s Am. Compl. at ¶ i).
In response, Defendant claims that the positions were posted and, further, that Pierce was not prevented by anyone at TxDOT from submitting an application thereto (Def.'s Br. at 13).
See Def.'s App. at 10, ¶ 17 (Thompson's Aff.) and at 15 (Affidavit of Deborah K. Jackson).
In addition to proffering controverting evidence with respect to whether the crew chief positions were properly posted, Plaintiff also proffers an investigation report completed by Defendant's Office of Civil Rights which notes, in pertinent part, that: Mr. William Laird (a white employee) recalled hearing Davis state that Haley and Lawrence would be selected for the crew chief positions because of their qualifications and that because of this announcement by Davis, Laird did not apply because he thought the same would be a waste of time (at 7); Lawrence had submitted an application to Davis, but that he was not interviewed for the position and that he was not sure whether the position had been announced (at 8); Mr. John Marley (a white employee) recalled that applications were accepted for a few weeks for the crew chief positions. However, he did not apply because he knew whom Davis was going to select and that Davis exhibited favoritism to certain employees (at 8); Ms. Cathy Masters (a white employee) related that although she was not present at the meeting where Davis allegedly made the statement regarding Haley and Lawrence, she had nonetheless heard that such a statement had been made and that there was favoritism at SMO regarding the assignment of positions (at 9); Thompson indicated that the promotion to crew chief was automatic at the direction of TxDOT Austin (at 10) (Pl.'s App. at Ex. 4 (TxDOT Investigation Report)). The report further noted significant inconsistencies between the hiring procedure for the crew chief positions and the TxDOT interviewing and hiring guidelines ( Id. at 14). For instance, although both Haley and Lawrence stated that they had not been interviewed, a form dated March 11, 1997 indicated that they both had been interviewed ( Id.). Additionally, although only Lawrence recalled drafting responses to interview questions from Thompson, Thompson had rated both Lawrence and Haley as having "strong" ratings with respect to their written answers ( Id.). Moreover, Thompson, the hiring official for the crew chief positions, indicated that Haley and Lawrence were automatically promoted by "Austin" ( Id. at 15). The report concluded that Pierce as well as other employees had the opportunity to apply for the internally posted crew chief positions; that only Haley and Lawrence so applied; that promotion of Haley and Lawrence affected both minority and nonminority employees; and that neither Haley nor Lawrence had been interviewed for the crew chief positions ( Id.).
In Blow v. City of San Antonio, Tex., supra, the Fifth Circuit found, in a failure-to-promote case, that where an employer deliberately failed to publicize a job opening and the same represented a departure from that employer's stated hiring policies, the employee had created a genuine issue of fact regarding the falsity of the employer's stated non-discriminatory rationale for not promoting the employee.
Applying the Teamsters factors discussed supra, the court finds that genuine issues of material fact have been created with respect to the following: whether Defendant properly publicized the crew chief job vacancies so as to invite applications from a diverse group of employees and whether Defendant employed racially-biased recruitment techniques (i.e., favoritism) in filling job vacancies. Moreover, in light of Plaintiff's contention that during his tenure there have been no non-white crew chiefs or supervisors, this lack of racial diversity in TxDOT's supervisory positions, suggests that Defendant may have discriminatorily excluded members of minority groups. In light of the foregoing, Plaintiff has created genuine issues of material fact with respect to the establishment of his prima facie case so as to shift the burden to Defendant to show a legitimate, non-discriminatory reason for its decision not to promote Plaintiff.
A defendant's burden of producing evidence in support of the legitimate, nondiscriminatory reason underlying its action is "extremely light." See Thornton v. Neiman Marcus, 850 F. Supp. 538, 543 (N.D. Tex. 1994). Defendant may satisfy its burden merely by producing any evidence, "which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." See St. Mary's Honor Center, 509 U.S. at 509, 113 S.Ct. at 2748.
TxDOT contends that Pierce was not promoted to the crew chief positions because Haley and Lawrence were the strongest candidates for the position based on their experience as well as their knowledge, skills, and abilities (Def's Br. at 14). According to Defendant, Haley had a total of 15 years of pertinent experience, while Lawrence had a total of 25 years of pertinent experience ( Id.). Moreover, Haley and Lawrence were the only applicants for the crew chief positions (Thompson's Aff. at ¶ 18).
In response, Pierce contends that he was regularly assigned as a crew leader or lead worker on jobs such as rotomilling and hot mix overlays (Pl.'s Resp. at 1). Pierce does not challenge the qualifications of either Haley or Lawrence.
Despite Pierce's complaints with respect to Davis and Thompson's handling (i.e., job posting, recruitment, and selection) of the crew chief positions, Pierce has failed to show that Defendant's reason for promoting Haley and Lawrence — based on their experience and the fact that they were the only applicants for the positions — was a pretext for racial discrimination. Plaintiff's response indicates that he started with TxDOT in 1992 and that the crew chief positions became available in 1997. As such, even construing Plaintiff's response in the light most favorable to him, he only had five years of experience with roadway maintenance as compared to Haley and Lawrence's respective 15 and 25 years of experience.
Moreover, to the extent that Plaintiff contends that Defendant's reason is pretextual based on its failure to adhere to its own hiring practices, his contention is unavailing. See E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1182 (5th Cir. 1996); see also Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989) (citing Sanchez v. Texas Comm'n on Alcoholism, 660 F.2d 658, 662 (5th Cir. 1981) (a defendant's disregard of its own hiring system does not prove racial discrimination absent a showing that discrimination was a motive in the action taken). "[S]ome nexus between the employment actions taken by the employer and the employee's [race] must be established . . . bald assertions . . . will not suffice. See Moore v. Eli Lilly Co., 990 F.2d 812, 819 (5th Cir.) (ADEA case), cert. denied, 510 U.S. 976, 114 S.Ct. 467 (1993). Since Defendant's alleged discriminatory bias (i.e., favoritism) equally affected both minority and white employees, Plaintiff cannot demonstrate a genuine issue of fact that Defendant's decision to promote Haley and Lawrence was motivated by racial animus against him.
2. Racial Slurs
Plaintiff also claims that he was subjected to derogatory racial slurs while at work. Specifically, Plaintiff claims that he either heard, or learned of, the use of the "N" word by two TxDOT employees. Defendant does not dispute this contention.
However, the mere utterance of a racial epithet is not an indicia of discrimination under Title VII. Boyd v. State Farm Ins. Companies, 158 F.3d 326, 329 (5th Cir.) (court found that "Buckwheat" and "Porch Monkey" were stray remarks from which no inference of racial discrimination arose) (citation omitted), cert. denied, 526 U.S. 1051, 119 S.Ct. 1357 (1999). Absent a causal link between the derogatory references and the conduct complained of (i.e., Defendant's failure to promote Pierce), such epithets are merely stray remarks that cannot support a finding of discrimination. Id. at 330 (citation omitted). The use of the "N" word by two TxDOT employees constitutes nothing more than stray remarks which were in no way connected with the employment decision to promote Haley and Lawrence. Therefore, no reasonable fact-finder could infer race discrimination based upon the two utterances of the "N" word.
3. Racially Disparate Treatment — Compensation
To establish a prima facie case of racially disparate treatment with respect to compensation, Pierce must show that white employees were treated differently — i.e., reached certain pay levels faster — under circumstances "nearly identical" to his. C.f. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (citation omitted) (disparate treatment in the context of a work-rule violation case).
Plaintiff claims that he reached the $12.85 pay level (i.e., the "A12 pay group") at a slower pace than certain white co-workers. Specifically, Pierce claims that it took him seven years to reach the A12 pay group, while his white counterparts, Mr. Steven Kennemer and Mr. Martin Brookhart, reached that level in three years and five years, respectively. Plaintiff also challenges Kennemer's promotion to "Maintenance Tech. IV" based on his lack of experience operating heavy equipment.
In response, TxDOT contends that, according to its records, it took two white male employees 16 years to reach A12; it took one white male employee 11 years to reach A12; and it took two other white male employees 9 years to reach A12 (Def.'s Br. at 19; Def.'s App. at 17 (Affidavit of Debroah K. Jackson) ("Jackson's Aff.")). Defendant also contends that it only took Pierce 6 years — as opposed his allegation of 7 years — to reach the A12 pay group ( Id.). With respect to Kennemer's promotion, TxDOT proffers Thompson's affidavit wherein he avers that Kennemer arrived at the SMO with experience operating heavy equipment and that Kennemer demonstrated strong skills in remodeling and in building furniture — two of his primary work responsibilities — which were helpful to the SMO (Thompson's Aff. at ¶ 38).
In light of the foregoing, the court finds that Pierce cannot establish a prima facie case that he was treated differently than his white counterparts based on his race. In fact, the evidence suggests that although Pierce did not reach the A12 level as quickly as two particular white employees, he reached that level faster than at least five other white co-workers. As such, it cannot be said that Defendant's employees' attainment of pay level A12 was the product of racially motivated animus. Moreover, with respect to Pierce's challenge of Kennemer's promotion, Pierce has proffered nothing more than unsubstantiated assertion with respect to Kennemer's experience — wholly refuted by TxDOT — which is not competent summary judgment evidence. See Celotex, 477 U.S. at 324.
It is not altogether clear how an employee attains certain pay levels within TxDOT. However, to the extent that the evidence demonstrates that non-protected, white employees took longer to reach A12 than did Pierce, Pierce's contention that he was discriminated against based on his race cannot be accepted. Moreover, the summary judgment evidence fails to show that Pierce's skills and work experience were comparable to those of Kennemer and Brookhart.
3. Retaliation claim
To establish a prima facie case of retaliation under Title VII, Peirce must establish that: (1) he participated in statutorily protected activity, (2) he suffered an adverse employment action, and (3) a causal connection existed between the protected activity and the adverse action. See Shackelford, supra, 190 F.3d at 407-08; see also Long v. Eastfleld College, 88 F.3d 300, 304 (5th Cir. 1996) (describing the third element of a prima facie retaliation case as a "causal link") (citation omitted). The Fifth Circuit applies the McDonnell Douglas, supra, burden-shifting framework in addressing unlawful retaliation claims under Title VII. See McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983).
The pertinent provision states, in part, that it is unlawful 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." 42 U.S.C. § 2000e-2(a)(1).
Pierce contends that he was retaliated against by TxDOT for filing a complaint of racial discrimination in the following ways 1) he was assigned to a defective truck, 2) he was given a low performance evaluation; and 3) he was demoted from his position as a rotomill crew leader.
To the extent that Defendant contends that the assignment of a vehicle — defective or otherwise — is not an adverse employment decision actionable under Title VII, the court agrees and finds that Defendant is entitled to summary judgment on the issue.
There can be no question that Pierce's retaliation claim satisfies the first element of his prima facie case, as the filing an administrative complaint is clearly a protected activity. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995); 42 U.S.C. § 2000e-3(a)(2001) (protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII).
In order to satisfy the second element of the prima facie case, Pierce must show that he suffered an adverse employment action — i.e., an "ultimate employment decision." See Dollis, 77 F.3d at 781-82 (Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions). Ultimate employment decisions involve "acts such as hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). Moreover, if an employee suffers a demotion and that act constitutes a significant change in employment status, such as reassignment with significantly different responsibilities, or a decision which causes a significant change in benefits, the same constitutes an adverse employment decision actionable under Title VII. See Evans v. City of Houston, 246 F.3d 344, 353 (5th Cir. 2001) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); Sharp v. City of Houston, 164 F.3d 923, 993 n. 21 (5th Cir. 1999).
With respect to Pierce's contention that he received an "unfair and unmerited" rating on his performance evaluation which denied him a raise, the court finds such a claim to be without merit. Pierce contends that prior to April 24, 2000, the date on which he received a "meets standard" rating, he had always received an "exceeds standard" rating on his performance evaluations (Pl.'s Aff. at ¶ 3).
Pierce does not expound on this issue in any detail whatsoever. For instance, he does not indicate what level of raise he was entitled to nor does he indicate how the evaluation adversely affected him (aside from stating that he needed at least one "exceeds standard" to be promoted see Pl.'s Am. Compl. ¶ 3c). Further, assuming arguendo that Pierce had elaborated on this issue the "meets standard" rating cannot be found to be low. Moreover, the evidence proffered by Defendant indicates that Pierce received pay raises, after this alleged low evaluation, in August 2000, May 2001, and August 2001 (Def.'s Br. at 5).
In Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 (5th Cir.), cert. denied, 525 U.S. 1068, 119 S.Ct. 798 (1999), the Fifth Circuit considered an employee's claim that she received a low performance evaluation in retaliation for negative comments directed at her employer and, thereafter, found that the challenged rating of "fully satisfactory" was not low and, further, that even if the same had been low, the evidence was insufficient to demonstrate that the evaluation itself constituted an adverse employment decision actionable under Title VII. Id. (citations omitted).
As such, even if Pierce's "meets standard" rating may be categorized as low — which the court has difficulty finding — the same would not constitute an adverse employment decision actionable under Title VII. Accordingly, Defendant is entitled to summary judgment on this issue.
With respect to Pierce's alleged demotion, a review of the record discloses the following: he was assigned as a rotomill crew leader in June 1998 (Pl.'s App. Ex. 4 at 12); the rotomill machine became inoperable in July/August 1999 and in the interim, he attended training sessions at "drag line" school; and that three weeks after the machine was repaired — sometime in 2000 — he was replaced as crew leader by Mr. Robert Rust (Pl.'s Aff. at ¶ 17). Absent any argument to the contrary by Defendant, the court finds that Pierce's demotion from crew chief satisfies the second prong a a prima facie case.
However, the organizational charts proffered by Pierce demonstrate that he was replaced by a Mr. James Pate (Pl.'s Reply at 000263).
It is unclear whether Pierce's demotion resulted in either a significant change in his job responsibilities or a significant change in his benefits. However, to the extent that Defendant has not included any reference to Pierce's demotion in either of its briefs to the court, it is unnecessary to discuss the same. Pierce's summary judgment evidence shows that he was replaced in the rotomill section by Mr. James Pate, an "Engineering Tech IV/A14," and that Pierce, an "Engineering Tech III/A12," was reassigned to the "Loboy Mechanical" section (Pl.'s Reply at 000263).
As for the third prong of a prima facie case, "a plaintiff need not prove that [his] protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case." Evans v. City of Houston, 246 F.3d at 353 (citing Long); see also Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001) (the causation showing at the prima facie stage is much less stringent than the "but for" standard).
Examining the temporal proximity, or lack thereof, between an employee's protected activity and an adverse action against him can provide insight into the existence of a causal link. See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). An inference of proximate causality may be drawn when the adverse employment action follows close on the heels of a plaintiff's protected conduct.
In Clark Co. School Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001), the Supreme Court noted that in those cases in which such an inference was permitted, it was uniformly held that the temporal proximity must be "very close." Id. The Court further noted cases in which periods of 3 months and 4 months, respectively — between the protected activity and the alleged retaliation — were insufficient to permit such an inference. Id. at 273-74, 1511.
Neither party has identified the date on which Plaintiff was replaced by Mr. Rust as the rotomill crew leader. Although the evidence may ultimately show that this event was too remote in time to permit the drawing of an inference of proximate causality, at the summary judgment stage the evidence of a demotion is sufficient to satisfy the third element of a prima facie showing of retaliation, which triggers the McDonnell Douglas burden-shifting framework and shifts the burden to the Defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action. Long v. Eastfield College, 88 F.3d at 308.
See n. 15, supra.
Defendant has not proffered any reason, let alone a non-retaliatory one, for its decision to remove Plaintiff from his position as a rotomill crew leader. Therefore, the court finds that a genuine issue of fact exists regarding the existence of discriminatory animus on the part of Defendant in relation to its decision to remove Plaintiff. As such, summary judgment is not proper on this issue.
III. Conclusion
It is therefore ORDERED that Defendant's Motion for Summary Judgment is GRANTED in part with respect to Plaintiff's causes of action for racial discrimination predicated on his failure-to-promote claim, the use of racially derogatory remarks, and disparate compensation, as well as his causes of action for retaliation based on the assignment of a defective truck and his "meets standard" performance evaluation and DENIED in part with respect to Plaintiff's cause of action for retaliatory demotion.