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holding that employer had satisfied its burden of articulating a legitimate, nondiscriminatory reason for discharging employee by offering proof that to establish that it discharged employee for violating disciplinary policy and work rule
Summary of this case from Walker v. Norris Cylinder CompanyOpinion
Civil Action No. 3:02-CV-1682-K.
February 8, 2005
MEMORANDUM OPINION and ORDER
Before the Court is Defendant Kimberly-Clark Corporation's ("Kimberly-Clark") Motion for Summary Judgment. The Court finds that summary judgment is appropriate because Mr. Dean has failed to make a prima facie case on his failure to promote, equal pay and hostile environment claims; Mr. Dean's disciplinary warning was not an ultimate employment decision; Mr. Dean presented insufficient evidence such that a reasonable trier of fact could find that Mr. Dean was the victim of intentional discrimination on his discharge claim; and finally, Mr. Dean's intentional infliction of emotional distress claim fails as a matter of law. For these reasons, Kimberly-Clark's Motion for Summary Judgment is GRANTED.
I. Background
This is a discrimination action by Plaintiff Kavin L. Dean ("Dean") against Defendant Kimberly-Clark Corporation. Plaintiff filed his original complaint on August 8, 2002. The Court granted Kimberly-Clark's Motion for Partial Dismissal on September 9, 2003 and dismissed Plaintiff's claims for retaliation; gender and age discrimination; grossly negligent infliction of emotional distress; negligent hiring, supervision and administration of personnel practices; claims under 42 U.S.C. 1981a, 1983, 1985, 1986, 1988; claims under 42 U.S.C. 1981 to the extent they arose from events that occurred more than two-years before August 8, 2002; and, any claims based on conduct occurring more than 300 days before April 18, 2001. Mr. Dean's claims that remain are his Title VII and Section 1981 claims that Kimberly-Clark discriminated against him on the basis of his race by 1) failing to promote him, 2) failing to equally compensate him for equal work, 3) issuing him a disciplinary warning, 4) terminating his employment and 5) subjecting him to a hostile work environment; and, his claim for intentional infliction of emotional distress.
Kimberly-Clark now moves for summary judgment on Dean's remaining claims. Dean has not responded to Kimberly-Clark's motion. The failure to file a summary judgment response does not permit the court to enter a "default" summary judgment, but it does permit the court to accept the defendant's evidence as undisputed. See Eversley v. Mbank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Tutton v. Garland Indep. Sch. Dist., 733 F.Supp. 1113, 1117 (N.D. Tex. 1990). Mr. Dean does have limited evidence to support his case insofar as Kimberly-Clark submitted portions of his deposition in support of its Motion for Summary Judgment.
II. Summary Judgment Standard
Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists 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, 322 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321-25; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57(1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
IV. Dean's Race Discrimination Claims
The Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and 42 U.S.C. § 1981. Although both of these statutes authorize a separate cause of action, the evidentiary framework to make out a claim for relief under either of them is the same. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997); La Pierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996). As the plaintiff, Dean bears the initial burden of proving a prima facie case of discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Grimes v. Texas Dep't of Mental Health Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996)
1. Plaintiff's Failure to Promote Claim
An employee presents a prima facie case in a failure to promote claim by showing that he (1) belongs to a protected group; (2) that he sought and was qualified for his position; (3) that he was rejected for that position; and (4) that the employer continued to seek applicants with the plaintiff's qualifications. See Haynes v. Penzoil Co., 207 F.3d 296, 300 (5th Cir. 2000). Dean has not demonstrated a prima facie case for his failure to promote claim. Dean presents no evidence that he applied for or was qualified for the Shift Specialist position. Dean did not apply for the most recent Shift Specialist position posted in January 2001. Plaintiff concedes that he did not apply for a Shift Specialist position more recently than January 1999, which is outside of the limitations period, therefore, Dean cannot establish a timely application for the position. Further, Plaintiff cannot establish that he was qualified for the Shift Specialist position. Plaintiff's only evidence that he was qualified for the position is his personal belief that he "could do the job." However, Dean's belief that he was qualified, is not sufficient to establish a prima facie case. See Burrell v. Crown Cent. Petroleum, Inc., 255 F.Supp.2d 591, 619 (E.D. Tex. 2003). Plaintiff has failed to establish that he applied for or was qualified for the Shift Specialist position, therefore, his failure to promote claim fails as a matter of law.
2. Plaintiff's Equal Pay Claim
To establish a prima facie case of discriminatory compensation, a plaintiff must prove (1) that he is a member of a protected class and (2) that he was paid less than a nonmember for work requiring substantially the same responsibility. See Williams v. Galveston Independent School Dist., 78 Fed.Appx. 946, 949 (5th Cir. 2003). Dean has failed to make a prima facie case of actionably disparate compensation. Plaintiff claims that Kimberly-Clark discriminated against him by failing to compensate him at the same rate it compensated its Process Specialists, although he admits he was a Production Officer, not a Process Specialist. "If a plaintiffs job responsibilities are significantly different from the responsibilities of employees [he] cites as a point of comparison, then the plaintiff has not made out a prima facie case." Williams 78 Fed.Appx. at 949. The undisputed summary judgment evidence establishes no significant disparity between Dean's compensation and that of white Production Officers situated essentially identically to him; thus summary judgment is appropriate as to this claim.
3. Plaintiff's Disciplinary Warning was not an Ultimate Employment Decision
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." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Plaintiff claims that Kimberly Clark discriminated against him by issuing a written disciplinary warning against him in August 2000. Plaintiff's claim fails as a matter of law, because ultimate employment decisions do not encompass events such as "disciplinary filings [or] supervisor's reprimands." Mattern v. Eastman Kodak Co., 104 F.3d 777, 781-82 (5th Cir. 1995).
4. Plaintiff's Discharge Claim
A. Prima Facie Case
Initially, in a discharge case, an employee must establish a prima facie case of discrimination by proving that (1) he is a member of a protected group; (2) he was qualified for the job that he held; (3) he was discharged; and (4) after his discharge, the employer filled the position with a person who is not a member of the protected group or that others who were not members of the protected class remained in similar positions. Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990).
The parties dispute whether Plaintiff has established a prima facie case. For the purposes of this summary judgment motion, the Court assumes without deciding that Dean has demonstrated a prima facie case of discrimination and reviews Plaintiff's discharge claim under the modified McDonnell Douglas approach. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
Once Dean has established a prima facie case, Kimberly-Clark must then articulate a legitimate, non-discriminatory reason for its decision to terminate the Plaintiff. If Kimberly-Clark meets its burden of production, then Dean must offer sufficient evidence to create a genuine issue of material fact either (1) that Kimberly-Clark's reason is not true, but is instead a pretext for discrimination; or (2) that Kimberly-Clark's reason, while true, is only one of the reasons for its conduct, and another motivating factor is the Plaintiff's race. If Dean demonstrates that his race was a motivating factor in the employment decision, it then falls to Kimberly-Clark to prove that the same adverse employment decision would have been made regardless of the discriminatory animus. Rachid, 376 F. 3d at 312.
B. Legitimate, Nondiscriminatory Reason
Kimberly-Clark has satisfied its burden of articulating a legitimate, non-discriminatory reason for the discharge. Kimberly-Clark has offered proof to establish that it discharged Mr. Dean for violating its disciplinary policy. Kimberly-Clark determined through an investigation that Dean yelled at Kim Ashlock, an Assistant Production Officer on his crew; shoved Paul English, another Production Officer, when English intervened; and that Dean lied during the course of the investigation in violation of Work Rule Nos. 5, 18, and 25 which prohibit "provoking or instigating a fight or fighting on Company property," "intimidation, coercion, and/or the use of threatening and/or abusive language," and "dishonesty in any form." As a result of this misconduct, Kimberly-Clark terminated Dean's employment.
C. Pretext or Mixed-Motive
I. Pretext
The burden now shifts back to Dean to produce evidence that would be sufficient to persuade a jury that Kimberly-Clark's proffered legitimate nondiscriminatory reason is a pretext for discrimination against him because of his protected status now that Kimberly-Clark has met its burden of producing a legitimate, nondiscriminatory reason for discharging him. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In order to survive summary judgment, Dean is required to offer proof to rebut Kimberly-Clark's articulated reason. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). A plaintiff may establish pretext either by showing a discriminatory reason more likely motivated his employer's decision or by showing that the employer's proffered reason is "unworthy of credence." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Wallace 271 F.3d at 220. Once a case reaches the pretext stage, the inference of discrimination ends, leaving only the ultimate issue of whether there is a conflict in substantial evidence sufficient to create a fact issue regarding discrimination. Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996) (en banc).
Dean's only evidence related to race involve allegations of statements made by Paul English, also a Production Officer, or other members of Plaintiff's crew. In order for comments in the workplace to provide sufficient evidence of discrimination, they must be 1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the complained-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue. Rubinstein v. Administrators of Tulane Educational Fund, 218 F.3d 392, 401 (5th Cir. 2000) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)). Plaintiff alleges no comments made by an individual with authority over the employment decision at issue.
Dean provides no other evidence of Kimberly-Clark's discriminatory intent and practice other than his conclusory statements and subjective belief. An employee's mere subjective belief that he has been the subject of discrimination, unsupported by any specific factual evidence, is insufficient to rebut the employer's evidence of legitimate, nondiscriminatory reasons for its actions. See Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000); see also Lowery v. Univ. of Houston, 82 F.Supp.2d 689, 696 (S.D.Tex. 2000) ("Speculation and belief are insufficient to create a fact issue as to pretext, and pretext cannot be established by mere `conclusory statements of a plaintiff who feels [that he] has been discriminated against'") (citing E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984)).
Plaintiff has alleged no evidence that Kimberly-Clark's reason for discharging him was untrue, nor has he shown that Kimberly-Clark's proffered explanation is not entitled to credence. Therefore, summary judgment is appropriate because Dean has failed to persuade the Court that a rational jury could find that a discriminatory reason motivated Kimberly-Clark. See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996) (holding that the employer is entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory).
ii. Mixed-Motive
Dean can also survive summary judgment by producing evidence that Kimberly-Clark's reason, while true, is only one of the reasons for its conduct, and another motivating factor is the Plaintiff's race. Dean has provided no evidence raising a fact question that Kimberly-Clark's reason, while true, is only one of the reasons for its conduct and that race discrimination was a motivating factor. Under a mixed motive theory Dean must produce some evidence, direct or circumstantial, of a discriminatory motivating factor in order to avoid summary judgment. Rachid, 376 F.3d at 312. As stated above, Dean's only evidence related to race involve allegations of statements made by Paul English, also a Production Officer, or other members of Plaintiff's crew. All of the racially related conduct Dean complains of are statements made by co-workers. The discriminatory animus of an employee is generally not sufficient to create a genuine issue of material fact regarding discrimination. See, e.g., Patel v. Midland Mem'l Hosp. Med. Ctr., 298 F.3d 333, 343-44 (5th Cir. 2002). The evidence Dean has presented does not support a finding that race was a motivating factor in his termination.
Plaintiff has failed to create a "genuine issue of material fact either (1) that Kimberly-Clark's reason is not true, but is instead a pretext for discrimination or (2) that Kimberly Clark's reason, while true, is only one of the reasons for its conduct, and another motivating factor is Dean's race. For these reasons, Kimberly-Clark's motion for summary judgment is granted as to Dean's discharge claim.
5. Plaintiff's Hostile Environment Claim
To establish a prima facie hostile work environment claim a plaintiff must prove that: (1) he is in a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his status as a member of the protected class; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. Mosley v. Marion County, Miss, 111 Fed. Appx. 726, 727 (5th Cir. 2004). The Supreme Court has stated that harassment affects a term or condition of employment when it is so severe that it alters the conditions of the victim's employment and creates an abusive working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (U.S. 1993).
Mr. Dean has failed to demonstrate a prima facie case on his hostile environment claim. Dean admits that he never complained to Kimberly-Clark of any alleged harassment until Kimberly-Clark was in the process of investigating his misconduct. Dean alleges that during the March 2001 investigation, he complained to Kimberly-Clark that English: (1) "pok[ed] [him] in the butt with an ink pen;" and (2) remarked that he ought to "whoop [Plaintiff's] black ass" during the incident that occurred on March 15, 2001 that resulted in Mr. Dean's discharge. Kimberly-Clark has no record of Plaintiff complaining of any other alleged harassment and Mr. Dean states that he did not report any other incidents to Kimberly-Clark because he feared being retaliated against. Accepting the facts in the light most favorable to Mr. Dean, the only other conduct involving race occurring at work were comments made by Paul English regarding the food Mr. Dean ate "chicken wings, barbeque chicken wings, something that black people are known to eat," a remark about Mr. English going to a club in a primarily black part of town where he was going to "whoop them all," and a comment that Mr. English "was the head man of the KKK." Also, Plaintiff alleged a few isolated comments by Kim Ashlock in his complaint, and in his deposition he stated only that Ashlock said that "she would rather die than live in the same neighborhood with blacks."
In order to establish an actionable claim of hostile work environment, Dean must prove that he was subjected to unwelcome harassing conduct "sufficiently severe or pervasive to alter the conditions of [his] employment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). He must also prove that Kimberly-Clark knew or should have known of the harassment in question and failed to take prompt remedial action. Ramsey, 286, F.3d at 268.
Dean fails to present competent summary judgment evidence support a prima facie case. Of all the articulated incidents, the only acts of harassment alleged to be race-based are comments made by co-workers. These incidents do not rise to the requisite degree of severity and pervasiveness that Fifth Circuit precedent requires. While a plaintiff may survive summary judgment by showing the existence of "routinely [made] racist remarks," Walker, 214 F.3d 615, 626 (5th Cir. 2000), the instant case is distinguishable because even viewing the evidence in the light most favorable to Dean, the race based comments were not routine in nature. Further, Dean provides no evidence to suggest that these racial comments unreasonably interfered with his work performance. Id.
In sum, no reasonable jury could return a verdict in favor of Dean on the ground that he experienced harassment that was sufficiently severe and pervasive. Accordingly, Dean fails to establish his prima facie case for a racially hostile work environment and summary judgment as to this claim is proper.
IV. Plaintiff's Intentional Infliction of Emotional Distress Claim
Texas law sets forth the following elements for intentional infliction of emotional distress: 1) the defendant acted intentionally or recklessly; 2) the defendant's conduct must have been extreme and outrageous — so outrageous as to go beyond all possible bounds of decency; 3) the actions of the defendant must have caused the plaintiff to suffer emotional distress; and 4) the distress must be severe. Walker, 214 F.3d at 628. The Fifth Circuit has noted that "in the employer-employee context, Texas courts have found few incidents to constitute extreme and outrageous conduct." Id. Even "a supervisor's frequent use of racial epithets against an employee did not rise to the level of extreme and outrageous conduct." Id. (citing to Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 740-741 (Tex.App. 1999)). In Walker, although the Fifth Circuit found a genuine issue of material fact with respect to the plaintiffs' claim of hostile work environment, they held that the defendant's frequent use of racial epithets did not rise to the level of extreme and outrageous conduct under Texas law. Id. at 628. Here, the Court finds that Plaintiff's co-workers' conduct did not rise to the level of extreme and outrageous conduct. Therefore, Plaintiff's claim of intentional infliction of emotional fails as a matter of law.
V. Conclusion
Mr. Dean's claims cannot survive summary judgment. Mr. Dean has failed to make a prima facie case for his failure to promote, equal pay and hostile environment claims. As to Mr. Dean's discharge claim, summary judgment is appropriate because Kimberly-Clark has articulated a legitimate non-discriminatory reason for discharging Mr. Dean and there is not sufficient evidence in the record that a reasonable trier of fact could find that Mr. Dean was the victim of intentional discrimination. Finally, Mr. Dean's claim for intentional infliction of emotional distress fails as a matter of law. For these reasons, Kimberly-Clark's Motion for Summary Judgment is GRANTED and Mr. Dean's claims are dismissed with prejudice. Because the Court has granted Kimberly-Clark's Motion for Summary Judgment, the Defendant's Motion for a continuance is DENIED as moot.
SO ORDERED.