Opinion
CA 3:98-CV-1417-R
February 9, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Kent Bowen ("Bowen") filed suit against Defendant Federal Express Corporation ("FedEx") on June 19, 1998. Bowen raises claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. § 2000, et. seq. (West 1994); 42 U.S.C.A. § 1981 (West 1994) [hereinafter "§ 1981"]; and under common law theories of breach of contract. Now before this Court is Defendant's Motion for Summary Judgment, filed on April 16, 1999. For the reasons stated below, Defendant's motion is GRANTED.
I. BACKGROUND FACTS
In reciting the facts of the case, the Court notes FedEx's objection to Bowen's affidavit. Specifically, FedEx contends that Bowen's affidavit directly contradicts Bowen's deposition testimony. However, because the Court is granting summary judgment on the merits of Bowen's claim, FedEx's objections are moot and need not be addressed.
Bowen was hired by FedEx in October of 1992 as a part-time courier at FedEx's Fort Worth station. Prior to beginning his employment at FedEx, Bowen signed an "Employment Agreement" which, among other things, stipulated that Bowen's employment at FedEx would be at-will. In February of 1996, Bowen accepted a full-time "swing-driver" position at FedEx's Redbird Station in Dallas. As a "swing driver," Bowen would fill in for other drivers who could not cover their regular routes due to vacation, illness, injury, or other reason.
Bowen's troubles began once he assumed his duties as a "swing driver." In September 1996, FedEx received the first of at least seven different complaints by seven different customers regarding Bowen's on-the-job conduct. These complaints continued until August of 1997. FedEx did not issue a warning letter about any of these customer complaints; however, Bowen was advised verbally and in writing not to elicit further customer complaints and to adhere to FedEx's Acceptable Conduct Policy.
The Acceptable Conduct Policy provides that "Federal Express expects all employees to accept certain responsibilities for adhering to business principles in matters of personal conduct and to exhibit a high degree of personal integrity."
During this period, on December 26, 1996, Bowen was also involved in an incident of disruptive conduct which did not involve a customer complaint. Specifically, Bowen was pulled over for speeding by the Baylor Police, and Bowen refused to provide the police officer on hand with proper identification. The police officer eventually called for back-up, and Bowen radioed a fellow courier to assist Bowen at the scene of the dispute with the Baylor Police. Although the Baylor Police eventually released Bowen with a warning, FedEx investigated the incident and determined that Bowen had violated FedEx's Acceptable Conduct Policy. FedEx issued Bowen his first and only Warning Letter.
The proverbial straw that broke the camel's back occurred on August 5, 1997 when Bowen entered into an altercation with a security guard at a customer's building. The facts on the record indicate that the security guard asked Bowen to sign his name three times for each package that Bowen was to pick up. Bowen refused. The security guard then called his own supervisor to assist in the matter. The supervisor informed Bowen that the customer's procedures required that Bowen sign three times for each package. Bowen then proceeded to leave the premises without signing for each package three times at which point the supervisor followed Bowen in order to obtain the license plate number on Bowen's van in order to report the incident to FedEx. The supervisor later reported to FedEx that Bowen entered the FedEx van, started it up, and then attempted to back it up over the supervisor, who jumped out of the way. Bowen admits to backing up the van but denies any intent to harm the supervisor.
FedEx conducted its own independent investigation of the incident and concluded that Bowen be terminated for repeated violations of the Acceptable Conduct Policy. Bowen was officially terminated on August 11, 1997. Bowen appealed his termination under FedEx's Guaranteed Fair Treatment Procedure, which contains three levels of review. At all three levels, Bowen's termination was upheld. Bowen alleges that this termination was racially motivated.
Bowen also claims that FedEx discriminatorily demoted Bowen. Specifically, in July of 1996, FedEx certified Bowen as a Dangerous Goods Specialist ("DGS"), authorizing Bowen to deliver packages containing medical waste and other hazardous materials. The DGS certification did not entitle Bowen to an increased rate of pay. However, the certification did provide Bowen with considerable overtime pay. In January of 1997, Bowen's DGS certification had expired and was not renewed. FedEx contends that a simple computer error explains why Bowen's DGS certification was not renewed. In April of 1997, the computer error was corrected, and Bowen received his re-certification as a DGS.
The final set of relevant facts deal with Bowen's claim that he was discriminatorily denied transfer and promotion opportunities in FedEx. In May of 1997, a few months after Bowen received his Warning Letter for the incident with the Baylor Police, Bowen requested that he be transferred to a non-driving position. FedEx refused Bowen's request, citing FedEx's Acceptable Conduct Policy, which prohibits an employee who has received a Warning Letter within the previous 18 months from submitting a Job Change Application. Bowen, in turn, claims that several FedEx drivers were allegedly transferred to non-driving positions after violating the Acceptable Conduct Policy.
FedEx has filed a Motion for Summary Judgment on all of Bowen's claims. The analysis that follows explains why FedEx's motion succeeds as to all claims.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when there is no genuine issue as to any material fact and the party moving for summary judgment is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552, 91 L.Ed.2d at 274 (1986). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325, 106 S.Ct. at 2554, 91 L.Ed.2d at 275. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See id. at 324, 106 S. Ct. at 2553, 91 L.Ed.2d at 274; Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d at 217. 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." Celetox, 477 U.S. at 322, 106 S.Ct. at 2552, 91 L. Ed.2d at 273.
B. Bowen's Title VII and § 1981 Claims
In his pleadings, Bowen claims that FedEx engaged in racial discrimination against Bowen in violation of Title VII and § 1981 when FedEx discharged Bowen; when FedEx allegedly demoted Bowen; and when FedEx denied Bowen's applications for transfer. After setting out the analytical framework for Title VII and § 1981 cases, the Court will address each of these three claims in turn.
Analytical Framework for Title VII and § 1981 Cases
The Supreme Court has set out a burden-shifting framework for Title VII cases whereby the plaintiff must first establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). The burden then shifts to the defendant employer to "articulate some legitimate, nondiscriminatory reason" for the employment decision in question. Id. Thereafter, the plaintiff "must . . . be afforded a fair opportunity to show that [the employer's] stated reason for [the employment decision in question] was in fact pretext." Id. at 804. More specifically, if the defendant employer articulates a legitimate, nondiscriminatory reason for the employment decision after the plaintiff establishes her prima facie case, "the inference of discrimination raised by the prima facie case disappears, and the plaintiff then must prove, by a preponderance of the evidence, both that the defendant's articulated reason is false and that the defendant intentionally discriminated." Walton v. Bisco Indus., Inc., 119 F.3d 368, 370 (5th Cir. 1997). In other words, "the employee has the burden of persuasion at trial." Bodenheimer v. PPG Indus., 5 F.3d 955, 959 n. 8 (5th Cir. 1993) (interpeting St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
The McDonnell Douglas framework is not exclusive to Title VII. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1048 (5th Cir. 1996) ("To succeed on a claim of intentional discrimination under Title VII, Section 1983, or Section 1981, a plaintiff must first prove a prima fade case of discrimination."). "With regard to the burden of proof, the McDonnell Douglas burden-shifting framework applies in § 1981 cases in the absence of direct evidence of discriminatory intent." Thomas v. Exxon, U.S.A., 943 F. Supp. 751. 758 (S.D. Tex. 1998). Thus, in addressing FedEx's Motion for Summary Judgment, the Court will use the same analytical framework in evaluating both the Title VII claims and the § 1981 claims raised by Bowen.
Wrongful Discharge
Prima Facie Test
Under the first prong of the McDonnell Douglas framework, Bowen must establish a prima facie case of wrongful discharge. Bowen fails to do so. "In order to make out a prima facie case of discrimination, a plaintiff alleging discriminatory discharge must show (1) that [he] is a member of a protected group; (2) that [he] was qualified for the job that [he] formerly held; (3) that [he] was discharged; and (4) that after [his] discharge, the position [he] held was filled by someone not within [his] protected class." Singh v. Shoney's, Inc., 64 F.3d 217, 219 (5th Cir. 1995).
As an African-American, Bowen falls within a protected group, thereby satisfying the first part of the prima facie test. Because it is undisputed that Bowen was qualified to be a courier for FedEx, Bowen satisfies the second part of the prima facie case. It is undisputed that Bowen was discharged as required by the third part of the prima facie test. Where Bowen fails to satisfy the prima facie test is the fourth element. Specifically, Bowen must show that he was replaced by a non-African-American employee. See id. Nowhere in his pleadings or exhibits does Bowen provide evidence that he was replaced by someone outside of his protected class. Therefore, Bowen fails to establish a prima facie case. Even if the Court assumes arguendo that Bowen states a prima facie case, Bowen's discriminatory discharge claim still fails under the last two prongs of the McDonnell Douglas framework.
Legitimate Nondiscriminatory Reason
Under the second prong of the McDonnell Douglas framework, FedEx must articulate a legitimate, nondiscriminatory reason for terminating Bowen. FedEx contends that it terminated Bowen because Bowen repeatedly violated FedEx's Acceptable Conduct Policy. Specifically, FedEx provides evidence that FedEx received seven different customer complaints about Bowen.
Bowen argues that the customer complaints are hearsay, thereby precluding the Court from considering the complaints. This argument is unpersuasive. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801. The records of customer complaints are not offered for the truth of the matter asserted therein. They are offered merely to demonstrate that a complaint was made. Furthermore, Bowen himself admits in his deposition testimony that FedEx received complaints from customers about Bowen. Thus, the customer complaints are not hearsay, and the Court is free to consider them. Accordingly, the Court finds that FedEx has stated a legitimate, nondiscriminatory reason for terminating Bowen. The burden now shifts to Bowen to provide evidence that the customer complaints were mere pretext for discrimination.
Pretext
Bowen argues that FedEx's reliance upon customer complaints as a basis for terminating Bowen is mere pretext because FedEx did not follow its own Acceptable Conduct Policy when it terminated Bowen. Specifically, the Acceptable Conduct Policy provides that "[t]hree warning letters within an 18-month period normally result in termination." Further, "[i]ssuance of a warning letter for a deficiency [that has] previously been addressed through 2-5 Accentable Conduct can result in more severe [discipline, up] through termination." The evidence before the Court indicates that, while Bowen's supervisors did speak with him about the customer complaints, FedEx issued only one warning letter to Bowen. That one warning letter was for "disruptive conduct while on duty." Thus, the issue before the Court is whether FedEx was engaging in racial discrimination when it terminated Bowen for customer complaints for which Bowen received only one warning letter.
A plaintiff in a Title VII or § 1981 action will meet his burden under the third prong of the McDonnell Douglas framework "if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [race] was a determinative factor in the actions of which plaintiff complains." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (emphasis added). Indeed, "[t]he evidence necessary to support an inference of discrimination will vary from case to case." Id. For example, in Williams v. Time Warner Oper., Inc., 98 F.3d 179 (5th Cir. 1996), the plaintiff claimed he was denied a promotion as a result of race discrimination in violation of Title VII. After Williams established his prima facie case, Time Warner asserted that it denied the promotion to Williams on the basis of a poor oral recommendation given by Williams' immediate supervisor. Williams, 98 F.3d at 180. However, Williams maintained that his immediate supervisor "lied about Williams' qualifications in order to cover up . . ." for the racially motivated decision of the Time Warner employee in charge of making the promotion decision. Id. In finding that Time Warner's purported rationale for not promoting Williams was pretext for discrimination, the Fifth Circuit noted that Williams' immediate supervisor had given Williams a favorable written recommendation when Williams had applied for the same promotion on a prior occasion. Id. at 182. In addition, the Williams Court also took into account the fact that Williams had previously worked in the very position for which he was applying — that, too for the very person in charge of making the promotion decision — and Williams had performed satisfactorily in that position. Id. Finally, the Fifth Circuit found that Williams had scored the highest of all the promotion candidates in the performance evaluation category. Id.
However, the employee in charge of making the promotion decision weighed the performance evaluation equally with the oral supervisory recommendation, a ranking system that the Fifth Circuit felt "legitimately question[s]" the sincerity of Time Warner's proffered legitimate, nondiscriminatory reason for not promoting Williams, Id. Accordingly, the Fifth Circuit in Williams held that the "evidence creates a genuine issue of material fact concerning whether [the employee in charge of the promotion decision] in fact relied upon [the supervisor's] negative supervisory recommendation or instead upon unlawful, discriminatory animus in failing to promote Williams." Id.
While the Fifth Circuit found that the plaintiff in Williams established a material fact as to pretext, the Fifth Circuit in Walton, 119 F.3d at 373, found that the plaintiff failed to meet her burden under the third prong of the McDonnell Douglas framework. The plaintiff in Walton was terminated from her position as a Cell Manager at Bisco Industries after she failed to achieve the minimum annual net profit required of Cell Managers for nearly two years in a row. Id. at 369. Walton asserted that her purported failure to achieve the minimum profit margin was a mere pretext for discrimination. As evidence of pretext, Walton maintained that two Caucasian male Bisco Cell Managers who also failed to reach the minimum profit margin were not terminated. Id. at 371. The Fifth Circuit found Walton's evidence to be insufficient because the other two Cell Managers were situated differently than Walton: one of them had voluntarily resigned after failing to meet the minimum margin for two years in a row while the other Cell Manager had "improv[ed] the office's performance in other respects." Id. at 372-73. Walton, on the other hand, had neither voluntarily resigned nor contributed to the company in other ways. Id. at 373.
Walton made three other arguments as well. First, Walton alleged that Bisco "prevented her from taking any actions that may have improved her financial performance and that she `was restricted to doing what her supervisors instructed her to do.'" Id. at 372. The Fifth Circuit found this argument unconvincing "absent additional evidence demonstrating that Walton, as a black female, was treated differently from others similarly situated at Bisco." Id. Next, Walton claimed that her pregnant condition at the time of her termination was indicative of sex discrimination. Id. The Fifth Circuit rejected this argument as well, noting that "[n]o one at Bisco with supervisory authority to fire [Walton] had been apprised of her pregnancy. . . ." Id. Finally, Walton took issue with the fact that she was terminated instead of simply demoted, arguing that her termination was "`clearly not a good use of Bisco's resources.'" Id. Again, the Fifth Circuit disagreed, asserting that "we do not view the discrimination laws as vehicles for judicial second-guessing of business decisions." Id. (citing Guthrie v. Tifco Indus., 941 F.2d 374, 378 (5 Cir. 1991)). On the basis of these findings and arguments, the Fifth Circuit affirmed the District Court's granting of summary judgment in favor of Bisco. Id. at 373.
Applying Williams and Walton to Bowen's claim of wrongful termination, Bowen has failed to prove that FedEx engaged in racial discrimination when FedEx terminated Bowen. Bowen's wrongful termination claim fails for two reasons. First, the evidence before the Court indicates that FedEx did receive numerous complaints from customers about Bowen. In fact, in his deposition testimony, Bowen admits that FedEx received these complaints. Thus, FedEx's articulated reason for terminating Bowen is not false.
Second, Bowen argues that, notwithstanding the presence of numerous customer complaints about Bowen, FedEx misapplied its own Acceptable Conduct Policy. Bowen's argument completely misses the point of the third prong of the McDonnell Douglas framework. Bowen cannot establish pretext by merely showing that FedEx misapplied its Acceptable Conduct Policy. Bowen must demonstrate that FedEx intentionally discriminated against Bowen when FedEx allegedly misapplied its Acceptable Conduct Policy. An example of evidence supporting such a showing would be records indicating that non-African-American employees who were similarly situated to Bowen (i.e., employees who had repeatedly violated the Acceptable Conduct Policy but only received one warning letter) had not been terminated. Bowen has provided no such evidence.
Further, a close reading of the Acceptable Conduct Policy indicates that FedEx did not misapply the Acceptable Conduct Policy when FedEx terminated Bowen on the basis of one warning letter. Two passages out of the Acceptable Conduct Policy support the Court's conclusion that FedEx adhered to the Acceptable Conduct Policy. First, the Acceptable Conduct Policy states that "[t]hree warning letters within an 18-month period normally result in termination." The Court notes two significant aspects about this sentence. First, three warning letters within an 18-month period do not necessarily result in termination: management can exercise its discretion. Second, the Acceptable Conduct Policy nowhere states that three warning letters within an 18-month period is the only basis for termination.
The second noteworthy passage in the Acceptable Conduct Policy indicates that FedEx takes a holistic approach toward disciplinary decisions. Specifically, the Acceptable Conduct Policy provides that:
Employees must understand that recurrent patterns of misconduct are noted and cannot be tolerated. Management should consider the relative nature of all infractions for disciplinary purposes. An employee's entire employment history is taken into consideration when evaluating recurring patterns of misconduct. Issuance of a warning letter for a deficiency which has previously been addressed through 2-5 Acceptable Conduct can result in more severe action up through termination.
(Emphasis added). Applying the aforementioned passages to Bowen's situation, the Court finds that FedEx's actions were in keeping with the language of the Acceptable Conduct Policy. It is undisputed that Bowen was the cause of several customer complaints. The evidence is also clear that Bowen was given written and verbal counseling to curb the behavior that led to so many customer complaints. In addition, FedEx received customer complaints about Bowen even after Bowen was issued a warning letter. Taking into consideration Bowen's "entire employment history," FedEx's decision to terminate Bowen seems justified under FedEx's own policies. In the absence of proof of any discriminatory application of the Acceptable Conduct Policy, the Court finds that Bowen's claim for wrongful discharge fails and that summary judgment should be GRANTED as to this claim.
Discriminatory Demotion
Bowen claims that he suffered discriminatory demotion at the hands of FedEx when Bowen's certification as a DGS was not renewed. Once more, the Court will engage in the three-part McDonnell Douglas analysis.
Prima Facie Case
The Fifth Circuit has articulated the plaintiff's prima facie burden under the McDonnell Douglas framework in a discriminatory demotion case in the following way:
The McDonnell Douglas test requires the plaintiff to show: (1) [he] was a member of a protected class, (2) [he] was qualified for the position [he] lost, (3) [he] suffered an adverse employment action, and (4) that others similarly situated were more favorably treated,Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). The case law in the Fifth Circuit establishes that Bowen states a prima fade case of discriminatory demotion. However, FedEx argues that Bowen's loss of DGS certification was not an "ultimate employment decision," thereby negating the existence of a prima facie case. See Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) ("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' include acts `such as hiring, granting leave, discharging, promoting, and compensating.'" Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). The foregoing list is not exhaustive. Further, it seems reasonable within the context of Mattern to include demotions as a type of ultimate employment decision.
The critical issue, however, is whether the denial of DGS certification was, in fact, a demotion. FedEx cites a Tenth Circuit opinion which posits that a "[d]emotion has been defined as `a reduction to a lower rank or grade.'" Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 799 (10th Cir. 1993) (quoting United Aircraft Corp. v. Lodge 971 of Int'l Ass'n of Machinists, 360 F.2d 150, 151 (5th Cir. 1966)). Based upon the definition provided in Hooks, FedEx opines that Bowen was not demoted when he was denied the renewal of his DGS certification because DGS is not a position, thereby implying that Bowen could not have been reduced to a lower rank or grade.
Ironically, it is the Hooks opinion which throws the proverbial wrench into FedEx's argument. Hooks dealt specifically with a reassignment from one position to another. The Hooks Court held that "a reassignment is not a demotion unless the employee can show that he receives less pay, has less responsibility, or is required to utilize a lesser degree of skill than his previous assignment." Id. (emphasis added). The evidence before the Court reveals that a DGS is given the opportunity to work more hours, thereby increasing his overall pay. In addition, the fact that a courier must be certified to be a DGS leads the Court to infer that being a DGS entails greater responsibility and greater skill than a regular courier position. Drawing all inferences in Bowen's favor, the Court must conclude that being denied DGS recertification was a demotion, and Bowen thereby states a prima facie case of discriminatory demotion.
Legitimate Nondiscriminatory Reason
The Court must now examine FedEx's proffered reason for denying the DGS recertification to Bowen. FedEx maintains that Bowen's DGS certification was not renewed because of an inadvertent computer error. The Court finds this explanation to be adequate under McDonnell Douglas because FedEx "need not persuade [the Court] that it was actually motivated by this reason; it is sufficient that [FedEx] has raised a genuine issue of fact regarding whether it unlawfully . . ." demoted Bowen from his position as a DGS. Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996).
Pretext
The Court must now decide whether Bowen has presented enough evidence to show that the purported computer error was mere pretext to allow FedEx to discriminate against Bowen. It is plain to the Court that Bowen has failed to make such a showing. In response to FedEx's legitimate nondiscriminatory reason, Bowen simply questions how a global air/ground transportation company can make such an error. Indeed, Bowen may be correct when he states that FedEx should upgrade its computer systems. However, a faulty computer system does not amount to discrimination. Bowen must provide evidence of discriminatory animus on the part of FedEx. In the absence of such evidence, the Court must GRANT summary judgment in favor of FedEx.
Denial of Transfer Opportunities
FedEx raises a statute of limitations defense, arguing that Bowen's claim of denial of transfer opportunities is time-barred. The Court need not reach this issue because the Court is granting summary judgment on the merits of the claim.
Bowen next contends that FedEx racially discriminated against Bowen in May of 1997 when FedEx denied Bowen's request to be transferred to a non-driving position. The Court will once again engage in the three-part McDonnell Douglas analysis.
Prima Facie Case
FedEx once again argues that Bowen does not state a prima facie case because a transfer to a non-driving position is not an ultimate employment decision because the non-driving position is a lateral transfer involving no increase in pay. Bowen has provided no response to this argument. Therefore, the Court must, at a minimum, infer that FedEx correctly states that the transfer position which Bowen sought was a lateral transfer.
Under Fifth Circuit doctrine, Bowen's claim does not involve an ultimate employment decision. For example, the Fifth Circuit affirmed the granting of judgment as a matter of law in favor of the employer where the employee claimed that the employer engaged in discrimination when the employer refused to grant the employee a transfer to another one of the employer's locations. See Burger v. Central Apartment Management, Inc., 168 F.3d 875 (5th Cir. 1999). "Refusing an employee's request for a purely lateral transfer does not qualify as an ultimate employment decision. Such a refusal is not akin to acts `such as hiring, granting leave, discharging, promoting, and compensating.'" Id. at 879. Thus, Bowen fails to state a prima facie claim of discrimination where FedEx merely refused to provide Bowen with a lateral transfer to a non-driving position. Nonetheless, the Court will complete the McDonnell Douglas analysis in order to further emphasize that summary judgment must be granted.
Legitimate Nondiscriminatory Reason
FedEx responds to Bowen's allegations that FedEx discriminatorily denied Bowen a transfer to a non-driving position by explaining that FedEx policy does not allow an employee to be granted a transfer if that employee has received a warning letter within the past 18 months. Specifically, the FedEx Acceptable Conduct Policy provides that "employees are prohibited from submitting a Job Change Application for 18 months [from] the date a warning letter is issued." The Court deems this policy to be a legitimate, nondiscriminatory reason for denying Bowen the transfer to a non-driving position. The Court will now analyze whether Bowen can establish pretext on the part of FedEx.
Pretext
In support of a finding of pretext on FedEx's part, Bowen alleges that several other FedEx couriers were issued warning letters but were given transfers to non-driving positions. However, all of the examples which Bowen cites deal with alcohol-related offenses. FedEx maintains that FedEx policy requires that couriers found to have committed alcohol-related offenses be transferred to non-driving positions. Bowen responds by asserting that FedEx policy also dictates that those couriers who commit alcohol-related offenses be terminated, not transferred.
Assuming Bowen's assertions to be true, Bowen still fails to establish pretext by FedEx because Bowen was not similarly situated to the employees who committed alcohol-related offenses. Bowen's own arguments against FedEx illustrate that FedEx has a special set of rules governing how FedEx deals with alcohol-related offenses. By contrast, Bowen was issued a warning letter because customers complained about Bowen. In other words, Bowen fell outside the purview of the special rules dealing with alcohol-related offenses. Where two employees are not similarly situated, the Fifth Circuit has held that an employer can discipline the two employees differently without raising a material question of fact as to the presence of discriminatory animus by the employer. See Nieto v. LH Packing Co., 108 F.3d 621, 623 (5th Cir. 1997). Thus, Bowen fails to establish pretext by FedEx. Because Bowen does not state a prima facie case of discriminatory denial of transfer and, further, because Bowen fails to establish pretext by FedEx, FedEx prevails on its Motion for Summary Judgment as to Bowen's claim that FedEx discriminatorily denied Bowen a transfer to a non-driving position in May of 1997. The Court now addresses Bowen's disparate treatment claim.
Disparate Treatment
In Bowen's Motion in Opposition to Defendant's Motion for Summary Judgment. Bowen also claims that he suffered disparate treatment at the hands of FedEx. The Court begins by defining the parameters of disparate treatment. The Supreme Court explained disparate treatment in the following way:
"Disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . .Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). "In a disparate treatment case, liability depends on whether the protected trait . . . actually motivated the employer's decision." Id. at 610. Thus, Bowen "must establish by a preponderance of the evidence that a pattern of intentional discrimination existed . . ." in FedEx's treatment of African-American employees. E.E.O.C. v. Olson's Dairy Queens, Inc., 989 F.2d 165, 167 (5th Cir. 1993).
Bowen argues that FedEx's Motion for Summary Judgment should be denied as to Bowen's disparate treatment claim because "FedEx has failed to provide any argument, authorities or evidence to negate Bowen's disparate treatment claim. . . ." However, the foregoing case law establishes that the plaintiff retains the burden of proving that the defendant engaged in disparate treatment. The Court has reviewed all of Bowen's pleadings, including Bowen's Complaint, and has concluded that Bowen has not established any form of disparate treatment by FedEx. Bowen provides no suggestion, much less evidence, of disparate treatment.
The only facts before the Court which may possibly give rise to a claim for disparate treatment are Bowen's allegations that certain Caucasian drivers at FedEx were given transfer and promotion opportunities that were not provided to Bowen. However, the Court has already concluded that the Caucasian drivers to whom Bowen refers were not similarly situated to Bowen. Therefore, Bowen has not established a pattern of inequity based on race. Any difference in treatment is most likely due to a difference in circumstances. Accordingly, summary judgment must be GRANTED as to Bowen's disparate treatment claim.
Bowen also argues that FedEx's Motion for Summary Judgment must be denied as to Bowen's disparate treatment claim because FedEx failed to address this claim in its Motion for Summary Judgment. This argument fails for two reasons. First, the burden of establishing disparate treatment falls upon Bowen. The Court has already concluded that Bowen has failed to meet this burden. Next, FedEx has addressed all of the factual allegations in Bowen's pleadings that may give rise to a disparate treatment claim. In doing so, FedEx has established that there is no material issue of fact regarding Bowen's disparate treatment claim. Thus, Bowen's argument fails.
C. Bowen's Contract Claim
Bowen's final claim for relief in this case is premised on the notion that FedEx breached an alleged employment contract with Bowen. What is unclear, however, is exactly which facts Bowen believes give rise to his breach of contract claim. One possible breach of contract action arises out of Bowen's Original Complaint, which alleges that "[w]hen FedEx terminated Bowen's employment, it breached its promise of continued employment to him, causing him substantial injury." Under Texas law, however, FedEx's decision to terminate Bowen does not give rise to a claim for breach of contract. "Texas courts continue to follow the historical rule that, absent a specific contract term to the contrary, employment contracts are terminable at will by either party." Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469, 471 (5th Cir. 1991). See also Pruitt v. Levi Strauss Co., 932 F.2d 458, 462-63 (5th Cir. 1991) ("Under Texas law, personnel manuals and employee handbooks do not create contractual rights unless the parties expressly agree that the procedures contained in these materials are binding.").
In the present case, the "Employment Agreement" signed by Bowen and FedEx not only fails to create a contract, it negates the presence of a contract. Ironically, in Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993), "Federal Express's employee handbook stated that employment was at-will, that the handbook did not constitute an employment contract, and that the handbook could be modified or withdrawn at any time." The Fifth Circuit held that such a disclaimer "negates any implication that a personnel procedures manual places a restriction on the employment at will relationship." Id. In case Bowen is still unconvinced that his employment at FedEx was at-will, the Court notes specific language in the Employment Agreement signed by FedEx and Bowen in which Bowen states: "I also agree that my employment and compensation can be terminated with or without cause and without notice or liability at any time, at either my or the company's option. . . . Nothing in this agreement, nor any documentation or other communication from the company, shall affect my employment at will status." Therefore, it is abundantly clear that the employment at-will doctrine effectively bars Bowen's first potential breach of contract claim.
Bowen's Brief in Support of Plaintiff's Motion in Opposition to Defendant's Motion for Summary Judgment frames Bowen's breach of contract claim in different terms. In particular, Bowen's brief argues that "FedEx violated Section 1981 when it refused to transfer [Bowen] to a non-driving position based on his race." In support of this argument, Bowen cites Fadeyi v. Planned Parenthood Assoc. of Lubbock, Inc., 160 F.3d 1048 (5th Cir. 1998) for the proposition that an at-will employee has a contract with his employer for purposes of § 1981. Specifically, the Fadeyi Court states that "[u]nder well-established Texas law, the employer may, absent a specific agreement to the contrary, terminate an employee for good cause, bad cause, or no cause at all. It does not necessarily follow, however, that the employment at-will relationship is not a contractual one for the purposes of § 1981." Id. at 1049 (emphasis added). In fact, "the better view is that . . . irrespective of being subject to at-will termination, such an employee stands in a contractual relationship with his employer and thus may maintain a cause of action under § 1981." Id. at 1049-50.
Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts. . . ." The language of Fadeyi thus interprets an at-will employment relationship as a contract only so far as to allow an employee to bring an action for discrimination under § 1981. However, Fadeyi does not stand for the proposition that an at-will employee may bring a cause of action for breach of contract where the employee alleges discrimination at the hands of the employer. Thus, whether based upon Bowen's termination or upon FedEx's decision not to transfer Bowen, Bowen's breach of contract claim fails, and summary judgment must be GRANTED.
The Court acknowledged this holding when it evaluated Bowen's § 1981 claims on the merits instead of dismissing the § 1981 claims because of the absence of an employment contract.
This is not the first time this Court has seen plaintiffs counsel bring a breach of contract claim in an at-will employment context on the basis of the Fadeyi decision. In CA 3:97-CV-3018-R, Sherman v. United Parcel Service, plaintiff's counsel made almost the identical argument. It did not work then, and it does not work now. Absent a dramatic change in the case law, the Court politely requests plaintiffs counsel to help conserve judicial resources by not presenting this same argument again.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiffs claims are hereby DISMISSED in their entirety.It is so ORDERED.