Opinion
Civil Action No. 3:99-CV-1718-D
February 22, 2001
MEMORANDUM OPINION AND ORDER
Defendant McDonald's Corporation ("McDonald's") terminated the employment of plaintiff Albert Chavez ("Chavez"), its Regional Marketing Supervisor for the Dallas Region, for the stated reason that he had used his company credit card to charge personal expenses. Chavez sues McDonald's, alleging violations of the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code Ann. §§ 21.001-21.405 (West 1996 Supp. 2001), and 42 U.S.C. § 1981(b), and asserting a claim for "wrongful termination." McDonald's moves for summary judgment. For the reasons that follow, the court grants the motion and dismisses this case with prejudice.
I
McDonald's hired Chavez, who is Hispanic, in 1997. His responsibilities included supervising advertising agencies in connection with McDonald's marketing activities. Zenola Worrill-Campbell ("Worrill-Campbell"), who is African-American, was Chavez's immediate supervisor. McDonald's terminated Chavez's employment in 1998, ostensibly because he had violated company policy by placing personal charges on his company credit card.
On October 8, 1999 the court dismissed Chavez's claims against Worrill-Campbell and entered a Fed.R.Civ.P. 54(b) final judgment.
Chavez alleges that McDonald's in fact discharged him because he is Hispanic, and as an act of retaliation for his complaining about discrimination by Worrill-Campbell and filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), in violation of the TCHRA and § 1981(b). He also brings a claim for "wrongful termination."
Chavez's reliance upon § 1981(b) is unclear from his summary judgment brief. Although he pleads a § 1981(b) claim in his amended complaint, see Am. Compl. ¶ 28, he mentions § 198 l(b) only once in his brief, contending that he "has alleged causes of action for violation of the Texas Human Rights Act, wrongful termination and violation of Plaintiff's Constitutional Rights as guaranteed by 42 U.S.C. § 1981(b)." P. Br. at 3. Because his § 1981(b) claim, if distinct from his discrimination and retaliation claims, is analyzed under the same standards that the court addresses infra, see, e.g., LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir 1996) ("Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VIL"), the court dismisses it for the same reasons.
McDonald's contends that to the extent Chavez intends to state a separate state common law claim for wrongful termination, the cause of action should be dismissed because it does not exist under Texas law. D. Br. at 22. Chavez has not responded to this assertion and has failed to demonstrate that he relies on a separate Texas state-law cause of action. See D. Rep. Br. at 12 ("Chavez completely ignores McDonald's arguments related to his wrongful termination claim."). The court therefore concludes that his claim for "wrongful termination" is in fact one for retaliation, not a distinct state-law cause of action, and does not address it separately.
II
The court turns first to Chavez's claim of discrimination under the TCHRA.A
Texas state courts construe the TCHRA consistently with federal law interpreting Title VII. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999) ("the law governing claims under the TCHRA and Title VII is identical"); Caballero v. Central Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993). Accordingly, to establish a claim of discrimination by indirect evidence, Chavez must follow the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this method, Chavez must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000). Once he meets this burden, McDonald's is obligated to articulate a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion. Id. Once McDonald's meets this production burden, the presumption of discrimination disappears. Id. Chavez must prove by a preponderance of the evidence that the legitimate reason offered is not the true reason but is a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, Chavez need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).B
To establish a prima facie case, Chavez must demonstrate that he (1) was a member of a protected class; (2) was qualified for his position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class. Shackelford, 190 F.3d at 403.
McDonald's argues inter alia that Chavez cannot establish a prima facie case because the evidence shows he was replaced by Jerome Elanis ("Elanis"), a Hispanic employee. Because Chavez is Hispanic, this fact negates his prima facie case. See Singh v. Shoney's, Inc., 64 F.3d 217, 219 (5th Cir. 1995) (per curiam) (holding that plaintiff, a white female whose employment was terminated had "failed to make out a prima facie case of racial discrimination on this record, because she was replaced by a white female.").
McDonald's also contends there was no evidence that Chavez was treated less favorably than were similarly-situated non-Hispanic employees. See D. Br. at 12-13. It advances this contention based on its formulation of the prima facie case, which would allow Chavez to meet the fourth element by establishing that he was treated less favorably than such an employee. See id. at 11. Because under Singh Chavez must show he was replaced by someone outside the protected class, the court does not reach the question whether he has complied with McDonald's asserted alternative component of the fourth element.
Chavez attempts to overcome this bar to recovery by relying on two premises. First, he argues that he "was not just merely a man who happened to be Hispanic" but was one "who took great pride in his ethnicity and wanted to impact his ethnic group through his job[,]" and that "[a]fter the differences [Worrill-Campbell] had with [him], it would be illogical for [her] to hire another Hispanic with the same ethnic pride that [he] had." P. Br. at 5. Second, Chavez maintains that it cannot be assumed "that all Hispanics are the same and all Hispanics have the same national origin." Id. He reasons that "Hispanics come from various backgrounds and countries[,]" that "[s]ome Hispanics are Hispanics simply because of their last name[,]" and that "Hispanics come from various countries with various government rules." Id. at 5-6. Chavez asserts that "[i]t can be argued that Jerome Elanis falls outside of the protected group that Mr. Chavez is in because all Hispanics are not the same. More specifically, all Hispanics do not derive from the same national origin and do not necessarily share the same beliefs." Id. at 6.
The court rejects, as unsupported by law, Chavez's argument to the extent it relies on the purported zealousness with which he represented his ethnic group. Chavez has cited no case that lends support to this course of reasoning. The fallacy of this contention can be seen quite readily by examining the purpose of the prima facie case in the McDonnell Douglas formulation. The McDonnell Douglas burden-shifting paradigm
is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (citation omitted). Proof that a terminated employee is replaced by a successor of his own race or national origin who is "less zealous" about his race or national origin does not establish a fact that, unexplained, gives rise to an inference of discrimination. The law in question today prohibits discrimination based on a person's race or national origin, not based on the zealousness with which a person advocates the causes or interests that may be associated with his race or national origin.
Concerning Chavez's reliance on differences in the national origins of Hispanic persons, the court agrees arguendo that such distinctions may be sufficient to satisfy the fourth element of the prima facie case (replacing a Hispanic person from Spain for a terminated Hispanic person from Mexico may give reason to an inference of discrimination). The court nevertheless holds that Chavez has failed to adduce any evidence that he and Elanis have different national origins. He cites no place in the summary judgment record to support such a distinction. See P. Br. at 5-6 (addressing fourth element of prima facie case but failing to cite any place in the appendix that contains evidence of either man's national origin). Accordingly, even if his argument is correct legally, he cites no factual support for it. See N.D. Tex. Civ. R. 56.5(c) ("A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.").
Because Chavez has failed to establish a prima facie case, McDonald's is entitled to summary judgment dismissing his TCHRA discrimination claim.
III
McDonald's seeks summary judgment dismissing Chavez's retaliation claim. It argues that Chavez cannot establish that McDonald's proffered reason for terminating his employment — his use of his company credit to make in excess of $1,000 in personal charges — is pretextual. McDonald's also posits that there is no evidence of a causal link between Chavez's complaints about Worrill-Campbell's treatment of him and his termination. It argues that there is no proof that David Hamilton ("Hamilton"), Vice-President and Regional Director for the Dallas Region, who made the decision to discharge Chavez, knew that he had engaged in a protected activity, or that any McDonald's employee knew that Chavez had visited the EEOC or filed a charge of discrimination until after he was discharged. McDonald's maintains on this basis that Chavez cannot establish "but for" causation.
The court need only address McDonald's second argument. When, as here, the summary judgment movant will not have the burden at trial concerning a cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the party does so, the nonmovant must then go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, the summary judgment nonmovant must produce evidence to establish the existence of each element for which he bears the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872(5th Cir. 1991). Summary judgment is mandatory where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076. The nonmovant's failure to adduce proof as to any essential element renders all other facts immaterial. Celotex Corp., 477 U.S. at 323.
One of the essential elements of a retaliation claim is causation. See Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996) (addressing Title VII) ("a plaintiff must show that the adverse employment action would not have occurred `but for' the protected activity in order to prove unlawful retaliation"). Because McDonald's has pointed the court to the absence of evidence of causation, see D. Br. at 2, 19, Chavez is obligated to introduce proof that would permit a reasonable trier of fact to find in his favor.
The court holds that Chavez has failed to meet this burden. He first relies on the assertion that Worrill-Campbell prompted Delia Maksud ("Maksud"), McDonald's Dallas Region Manager of Human Resources, to look into Chavez's credit card expenses. P. Br. at 9-10. He reasons that Maksud was tainted by this input, thereby satisfying the requirement of "but for" causation. This argument fails, however, to address McDonald's assertion and evidence that Hamilton made the decision to discharge Chavez and that he was unaware that Chavez had engaged in any protected activity. Chavez also concedes that no one at McDonald's knew of his complaint to the EEOC because he feared retaliation. This argument has no substantive significance for Chavez because it simply confirms that McDonald's could not have retaliated on this basis.
Accordingly, the court grants summary judgment dismissing Chavez's retaliation cause of action.
* * *
McDonald's motion for summary judgment is granted and this action is dismissed with prejudice by judgment filed today.SO ORDERED.