Opinion
NO. 4:00-CV-1849-A
December 10, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, The Burlington Northern and Santa Fe Railway Company, for summary judgment. The court, having considered the motion, the response of plaintiff, B. Tom Scally, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.
I. Plaintiff's Claims
On December 11, 2000, plaintiff filed his original complaint in this action. He asserts claims for discrimination based on age and gender and for retaliation. Specifically, in Count 1, he asserts a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621-32, ("ADEA") stating that he has been repeatedly bypassed or denied opportunities for career advancement because of his age and that he has worked in a hostile work environment.
In Count 2, plaintiff asserts a claim for gender discrimination under Title VII, 42 U.S.C. § 2000e to 2000e-17, based on defendant's alleged refusal to allow him an opportunity to return to work with a disability. Finally, in Count 3, plaintiff asserts a claim for retaliatory discrimination under Title VII based on defendant's alleged refusal to allow plaintiff to return to work in a non-safety sensitive position.
II. Grounds of Defendant's Motion
Defendant asserts six grounds in support of its motion. First, nothing that happened prior to August 6, 1997, is actionable. Second, to the extent that plaintiff has adequately pleaded a pattern and practice cause of action, his claim is beyond the scope of his charge of discrimination and this is not a pattern and practice-type case. Third, plaintiff's hostile working environment claim is beyond the scope of his charge of discrimination and plaintiff cannot meet the test of a hostile working environment in any event. Fourth, plaintiff has no complaint for events that do not constitute ultimate employment actions. Fifth, plaintiff cannot prevail on claims based on defendant's alleged failure to create a position for him. And, sixth, plaintiff cannot prove that defendant discriminated against him.
III. Undisputed Facts
The undisputed summary judgment evidence establishes the following facts:Plaintiff was born on October 3, 1951. In July of 1994, he began working as a train dispatcher for defendant's predecessor. On September 2, 1997, plaintiff went to work at 2:30 p.m. By 5:35 p.m. he began to feel awkward, breathing hard and experiencing blurry vision. He was taken by ambulance to the hospital. Defendant required him to have a doctor's note to return to work. Plaintiff's doctor released plaintiff to work restricted duty, with limitations including a prohibition against stressful work that would require life-threatening decisions. That restriction prevented plaintiff from performing his duties as a dispatcher, because dispatching involves stressful work requiring life-threatening decisions.
While plaintiff was off work, he was aware of other employees performing light-duty jobs. However, he is not aware of any light-duty job that would have been available for him between September of 1997 and February of 1998, when he returned to work. Both men and women had jobs created for them. Plaintiff worked with two men who had hearing problems and could not continue to work as dispatchers who were retained in other capacities. Another was a man who was promoted to assistant chief dispatcher.
In February 1998, plaintiff decided to return to work and looked for another type of job that did not have so much stress. Plaintiff applied for all bulletin jobs in defendant's network operation center in Fort Worth, Texas. In early March 1998, he was granted an interview for a chief dispatcher position. There were fifty-eight candidates for the eight positions to be filled. Interviews were conducted by a panel interview team including six chief dispatchers, three corridor superintendents, and one representative from human resources. Three different subgroups of the panel interviewed candidates. Each subgroup asked the same questions of the candidates. The interview panel was not aware of the ages of the candidates. Nor did its members consider resumes or other evidence outside the interviews in making their assessment of the candidates. Following each interview, each member of the interview team rated the candidate in the following categories: teamwork/team player, communication skills, leadership abilities, technical skills, related experience, problem-solving abilities, and initiative. The ratings in each category were averaged and the averages for each category were totaled. Each subgroup went through the same process. Ultimately a list of all applicants, ranked in order of their total scores, was compiled. The first eight people on the list were promoted. Plaintiff was not among them.
On June 1, 1998, plaintiff filed his charge of discrimination. As the causes of discrimination he checked boxes for race, age, sex, and disability. He stated that the discrimination was continuous, beginning at the earliest on September 1, 1997, the day before his first panic attack, and continuing through June 1, 1998.
Plaintiff continued to work until July 20, 2000. He then began another medical leave of absence, because his panic attacks started becoming unbearable. Plaintiff's doctor told him that he would have to increase his dosage of Xanax to continue to work his stressful job as a dispatcher. Plaintiff chose not to do that.
IV. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Conclusory allegations, speculation, and unsubstantiated assertions made in a deposition are inadequate to raise a genuine fact issue. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996); Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995); Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597.
V. Principles Generally Applicable To Employment Discrimination Claims
To make out a case under the ADEA or Title VII, plaintiff must show that he is a member of a protected class, that he suffered an adverse employment action, and that persons outside the protected class were not similarly treated. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Burns v. Tex. City Ref., Inc., 890 F.2d 747, 750 (5th Cir. 1989). With regard to claims for denial of promotion, plaintiff must show that he is a member of a protected group, that he applied for a position for which he was qualified, that he was rejected, and that after he was rejected, defendant promoted or continued to seek for promotion a person who was not a member of the protected class. Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir. 1986). To establish the fourth element with regard to an age discrimination claim, plaintiff must show that the person selected was substantially younger than he was. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996).
To establish a retaliation claim, plaintiff must show that he engaged in protected activity, that defendant took adverse employment action against him, and that a causal connection existed between the protected activity and the employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). Only ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating are addressed by Title VII. Id. at 707; Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).
VI. Limitations
Defendant contends that events that occurred more than 300 days before plaintiff filed his charge of discrimination cannot be the basis of claims for relief. Limitations on a Title VII claim starts running on the date the discriminatory act occurs, not at the time when the consequences of the act become most painful. Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980); Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986). The legislative history of Title VII shows that Congress intended the 300-day filing period to act as a statute of limitations instead of a jurisdictional requirement. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). The United States Supreme Court has described the period as a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. Id. at 393.
Plaintiff makes no effort to demonstrate that waiver, estoppel, or equitable tolling applies in this case. Instead, plaintiff argues that events prior to August 6, 1997, are actionable on a "continuing violations theory." The theory is applicable in two types of cases: (1) where an original violation occurs outside the statute of limitations, but is closely related to other violations that are not time-barred, and (2) where an initial violation, occurring outside the statute of limitations, is repeated later. Hendrix v. City of Yazoo City, 911 F.2d 1102, 1103 (5th Cir. 1990). A continuing violation theory applies only to a hostile environment-type claim and not to a claim for failure to promote. Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998). For reasons discussed infra, plaintiff cannot establish a hostile environment claim. Moreover, plaintiff's claim that he was held back from receiving his seniority date is not the kind of claim that can be made outside the 300-day period. See United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977).
This argument is made despite plaintiff's having stated on the charge form that September 1, 1997, was the first date that discrimination had occurred.
VII. Whether This is a "Pattern and Practice" Case
In the "facts" section of his original complaint, plaintiff states that defendant has "continuously engaged in a pattern and practice of discrimination against Plaintiff based on his age and his gender and in retaliation for his complaining of the discrimination." Pl.'s Original Compl. at 3, ¶ 17. But, a "pattern and practice" theory is not asserted in his causes of action. The scope of a complaint in a discrimination case is limited to the scope of the EEOC investigation that can reasonably be expected to grow out of a charge of discrimination. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). Plaintiff's charge does not include the phrase "pattern and practice of discrimination" nor does it contain any allegations that would raise such a complaint. The court further notes that a pattern and practice claim is ordinarily suited to class actions and involves statistical analysis of work force and labor policies. Carpenter v. Gulf States Mfrs., Inc., 764 F. Supp. 427, 436 (N.D. Miss. 1991). This is not such a case. And, in fact, plaintiff testified that he was referring to a pattern and practice employed as to him only when using those words in his complaint. Def.'s App. at 11.VIII. Hostile Working Environment
To establish a hostile working environment claim, plaintiff must show (1) discriminatory intimidation, ridicule, and insults that are (2) sufficiently severe and pervasive that they (3) alter the conditions of employment and (4) create an abusive working environment. Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995). And, plaintiff must show that defendant knew or should have known of the harassment and failed to take prompt remedial action. Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996); Carmon v. Lubrizol Corp., 17 F.3d 791, 794-95 (5th Cir. 1994). Once again plaintiff's charge of discrimination does not include any allegations that would give rise to the investigation of a hostile working environment claim. Even assuming that a hostile environment claim is not beyond the scope of plaintiff's EEOC charge, plaintiff has failed to come forward with sufficient evidence to create a genuine fact issue as to whether he was subjected to such an environment. The incidents plaintiff recites simply do not amount to the type of pervasive conduct that alters conditions of employment and creates an abusive working environment. Id. At most, plaintiff has shown that a member of his entering class in 1994 called him "old timer" or "old man" throughout the period of their acquaintance.IX. Failure to Create a Position for Plaintiff
Plaintiff alleges that defendant discriminated against him on the basis of his gender and retaliated against him by failing to create a light-duty position for him during the times that he was on medical leave of absence. Plaintiff's claim of gender discrimination is based on his leave of absence from September 2, 1997, until February 1998, during which time he alleges females were performing light-duty tasks that were not offered to him. The retaliation claim is based on the time period of July 20, 2000, to the present, when plaintiff says that defendant created light work for other male employees that was not made available to him. In neither instance has plaintiff shown that he was similarly situated to the individuals for whom light-duty positions were made available. Plaintiff was unable to perform the duties of his job as dispatcher because he could not perform stressful work requiring life-threatening decisions. There is no evidence that any of the females were similarly situated. And, although plaintiff identifies males who were unable to perform essential job functions due to hearing problems, he has no evidence that defendant's failure to create a position for him was a result of retaliation for any reason. In sum, plaintiff testified that light-duty positions were available for everyone except him. Def.'s App. at 69. He has not raised a genuine fact issue as to the cause of defendant's failure to make work for him.
The court notes that plaintiff never filed an EEOC charge alleging retaliation; nor is there any evidence that any decision-makers were aware of plaintiff's earlier charge when they made any decisions with regard to plaintiff.
X. Failure to Promote
The only claim for which plaintiff can arguably make a prima facie case of discrimination is with regard to the failure to promote him to the position of chief dispatcher, job posting number 30208. (Plaintiff testified that he had no knowledge regarding other positions for which he applied that would enable him to establish that he was the victim of discrimination.) Eight chief dispatcher positions were available and all persons promoted were younger than plaintiff.
The court recognizes that plaintiff was forty-six at the time and that at least three of those promoted were not substantially younger than plaintiff. See O'Connor, 517 U.S. at 312. For the sake of argument, the court assumes that plaintiff has made his prima facie case.
To overcome plaintiff'sprima facie case, defendant relies on the manner in which the successful candidates were selected.
As recited, supra, candidates were evaluated and selected solely on the basis of interviews.
Plaintiff argues that defendant's articulated business reason for selecting the individuals it promoted lacks credibility. In particular, he points to the scores for certain candidates regarding their related experience and technical skills. He argues that those persons could not have received higher scores than he did, since his experience far outstripped theirs. Greater experience alone does not suffice to raise a fact question as to defendant's business reasons. Nichols v. Loral Vouqht Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir. 1993). Plaintiff urges that he must have been discriminated against on the basis of his age. His conclusory statements are insufficient to demonstrate pretext. Taylor v. Houston Lighting Power Co., 756 F. Supp. 297, 301 (S.D. Tex. 1990). Plaintiff has not shown that the differences between his qualifications and those of the other candidates are so favorable to him that there can be no dispute among reasonable persons of impartial judgment that plaintiff was clearly better qualified for the position at issue. Deines v. Tex. Dep't of Protective Regulatory Servs., 164 F.3d 277, 280 (5th Cir. 1999). That is, the differences in qualifications do not "jump off the page and slap you in the face." Id. Thus, the evidence does not give rise to an inference of intentional discrimination. Id.
Plaintiff contends that this is "the only logical reason" for his not being promoted. Pl's Br. at 25. He overlooks the obvious answer: he simply did not interview well.
XI. ORDER
For the reasons discussed herein,The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and that such claims be, and are hereby, dismissed with prejudice.