Opinion
Civil Action No. 3:04-CV-1032-P.
June 14, 2005
ORDER
Now before the Court is Defendant Health Central, P.A.'s (d/b/a Health Central Women's) (collectively "Defendant" or "Health Central") Motion for Summary Judgment, filed February 17, 2005. Plaintiff Rachel Cortinas ("Plaintiff" or "Cortinas") filed a Response on March 21, 2005, and Defendant filed a Reply on April 1, 2005. After considering the parties' arguments and briefings, and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment.
I. Background and Procedural History
The current issue before the Court is whether "[Defendant] discriminated against [Plaintiff] on the basis of her national origin in her discharge," and whether "[Plaintiff] and other Hispanic employees were subjected to racial slurs." Def.'s Mot. for Summ. J. at 1.
Defendant employed Plaintiff "as a runner and file clerk" from June 22, 1998, to October 20, 2003; all employment was at-will. Mem. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") at 2; cf. Cortinas dep. at p. 54, 1.19 to p. 55, 1.3; p. 14, 1.8 to p. 16, 1.15; Greer Aff. ¶¶ 8-9 (Def.'s App. at 69-70; 45-47; 4-5). Plaintiff's duties included "[picking] up patients' files around the office and either [re-filing] them or [placing] them where needed for the physicians to use." Id.
"On the evening of October 15, 2003, Jania Deary (`Deary') and Angela Holloway (`Holloway') reported the theft of their wallets from their purses in the phone room which was in the rear of [Defendant's] office." Def.'s Mem. at 2 (citing Deary Aff. ¶¶ 3-5 (Def.'s App. at 1)). Both Deary and Holloway worked for Defendant as telephone receptionists. Cf. Deary Aff. ¶¶ 2-3 (Def.'s App. at 1). "[Plaintiff's] desk was next to the phone room where Deary and Holloway worked." Def.'s Mem. at 3 (citing Deary Aff. ¶ 3 (Def.'s App. at 1).
Specifically, "Holloway and Deary called Julie Geer (`Geer'), the Garland Office Manager, to report that their wallets had been stolen from their purses between 4:30 p.m. and 5:00 p.m. while they were up front filing." Def.'s Mem. at 3; see also Deary Aff. ¶ 5 (Def.'s App. at 1). Because Holloway and Deary cashed their paychecks that day, each wallet contained over $600.00. Geer Aff. ¶ 3 (Def.'s App. at 3).
Shortly after the theft, Geer suspected Plaintiff stole the wallets. Geer conducted an investigation that led her to believe that Plaintiff was the only individual near the purses when the theft occurred. Geer also talked with other individuals working at Defendant's location, who either believed Plaintiff acted suspiciously slightly before the theft, or believed that Plaintiff acted in an odd manner subsequent to the incident. Geer Aff. ¶¶ 4-7 (Def.'s App. at 4). "Based on [her] investigation, [Geer] terminated [Plaintiff] for suspicion of theft." Id. ¶ 13 (Def.'s App. at 6).
Several factors led Geer to believe that Plaintiff stole the wallets including: (1) Plaintiff just received a smaller paycheck because of time off for illness; (2) Plaintiff often borrowed money from other employees of Defendant; (3) Plaintiff avoided talking to the victims of the theft afterward; (4) a physician employed by Defendant observed Plaintiff make multiple trips to her car around the time of the theft; and (5) Plaintiff worked near the area where the theft occurred. See Geer Aff. ¶¶ 4-7 (Def.'s App. at 4).
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a material fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to her case, and on which she bears the burden of proof at trail, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has not duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Race Discrimination
In order to survive Defendant's Motion for Summary Judgment, Plaintiff must first establish, by a preponderance of the evidence, a prima facie case of race discrimination. Shackelford v. DeLoitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). To establish a prima facie case of discrimination, a plaintiff may prove her claim through direct evidence, statistical proof, or the tripartite burden-shifting test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
a. The McDonnell Douglas Framework
Under the McDonnell Douglas test, a prima facie case of race discrimination is established by a plaintiff once she proves that: (1) she is a member of a protected class; (2) that she was qualified for his position; (3) that she suffered an adverse employment action; and (4) that others similarly situated were treated more favorably. See generally Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 510 (5th Cir. 2001); Shackelford, 190 F.3d at 404; Ward v. Bechtel Corp., 102 F.3d 199, 201 (5th Cir. 1997).
The prima facie case, once established, raise a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackelford, 190 F.3d at 404. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the employer carries its burden, the mandatory inference of discrimination created by the prima facie case drops out of the picture, and the plaintiff must prove that the proffered reasons are pretextual. Id. "Once a Title VII case reaches the pretext stage, the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination." Shackelford, 190 F.3d at 404 (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)). The ultimate burden of persuasion rests squarely on the plaintiff. See Marcantel v. Louisiana Dep't of Transp. Dev., 37 F.3d 197, 200 (5th Cir. 1994).
b. Prima Facie Case
"[Defendant] submits that [Plaintiff] has not established a prima facie case of discrimination because [Plaintiff] cannot meet the fourth prong of the McDonnell Douglas test;" to wit, "she cannot prove that others similarly situated were treated more favorably than she." Def.'s Mem. at 12. "[I]n order for a plaintiff to show disparate treatment, she must demonstrate that the misconduct for which she was discharged was nearly identical to that engaged in by an employee not within her protected class whom the company retained." Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (internal citations omitted). Plaintiff fails to prove her prima facie case because she fails to establish others similarly situated.
Indeed, Plaintiff's curtailed Response offers only portions of her deposition to proffer that white workers were treated more favorably. Moreover, a thorough review of that testimony reveals no evidence supporting Plaintiff's contention that Geer never suspected or accused anyone else of the theft, much less any Caucasian employee. While Plaintiff proffers evidence that Geer did not verbally question some employees about the theft, that is a far cry from proving that Geer only suspected and investigated one individual. Plaintiff simply does not know the full extent of the investigation and therefore cannot raise an issue of fact to whether Defendant treated similarly situated employees more favorably.
Additionally, Plaintiff fails to prove that Geer uttered any racial slurs, presumably for a claim of hostile work environment under Title VII. See Cortinas dep. at p. 69, 1.6 to p. 71, 1.23 (revealing Plaintiff's inability to remember any racial slurs). Moreover, even if such statements existed, Plaintiff would have to do more than offer sporadic instances of such conduct, as the mere utterance of an epithet which engenders offensive feelings in an employee is not, taken alone, sufficient to support Title VII liability. See, e.g., Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996).
c. Pretextual Burden
However, even assuming arguendo that Plaintiff could prove her prima facie case, Defendant offers a legitimate, nondiscriminatory reason for its actions — Defendant believed Plaintiff committed the theft. "Whether [Defendant] was wrong in its determination . . . is irrelevant, as long as its belief, though erroneous, was the basis for the termination." De Anda v. St. Joseph's Hosp., 671 F.2d 850, 854, n. 6 (5th Cir. 1982). "For the purposes of Title VII, reasonable belief is enough to justify [Plaintiff's] termination." Def.'s Mem. at 13 (emphasis added) (citing Jones v. Flagship Int'l, 793 F.2d 714, 729 (5th Cir. 1986)). "It is `not sufficient [for the plaintiff] to present evidence that the . . . investigation was imperfect, incomplete, or arrived at a possibly incorrect conclusion. [She] must show that the reason proffered by [the defendant] is `false, and discrimination was the real reason.'" Pineda v. United Parcel Service, 360 F.3d 483, 489 (5th Cir. 2004) (second alteration added) (second internal citation removed) (quoting Wal-Mart Store, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003)).
In this case, Plaintiff cannot prove the proffered reasons are pretextual. At best, Plaintiff can only offer portions of her deposition, which amount to mere supposition for her termination. Moreover, although irrelevant, Plaintiff proffers little to no evidence that Defendant conducted a flawed investigation. In sum, even assuming Plaintiff established a prima facie case, she could not overcome the pretextual burden.
IV. Conclusion
For the foregoing reasons, Defendants's Motion for Summary Judgment is hereby GRANTED.