Opinion
CIVIL ACTION NO. 3:02-CV-0269-AH
January 5, 2004
MEMORANDUM AND ORDER
Pursuant to the written consents of the parties to proceed before a United States Magistrate Judge and the District Court's Transfer Order filed on February 6, 2003 in accordance with the provisions of 28 U.S.C. § 636(c), came on to be considered Defendant's Motion for Summary Judgment filed in this action on August 29, 2003.
Findings and Conclusions:
I. Background
A. ProceduralPlaintiff Ocell Donaldson (hereinafter "Plaintiff or "Donaldson") brought suit against defendant Osram Sylvania Products, Inc. (hereinafter "Defendant" or "Osram Sylvania") alleging that Defendant engaged in unlawful employment acts with respect to Plaintiff because of his race and color (Pl.'s First Am. Compl. ¶ 8).
B. Factual
Donaldson started work at Defendant's distribution center in Carrolton, Texas as a temporary employee in November 2000. On April 23, 2001 he was hired as a permanent Warehouse Worker II which required that he operate power equipment. Due to a non-work related injury, he was placed on short-term disability from March 12 to March 25, 2002.
On March 26, 2002, Plaintiff returned to work, but due to his perceived inability to perform the assigned light work tasks he was sent home. He continued to receive short-term disability benefits through June 2, 2002.
On June 4, 2002, Plaintiff again returned to work until July 19, 2002 when he was again placed on short term disability leave due to a reoccurrence of effects from his non-work related injury. He remained on disability through August 13, 2002.
On August 16, 2002 Donaldson was laid off. However, when a vacancy occurred for a lower paying non-powered equipment warehouse position, he accepted the lower paying position and returned to work on November 4, 2002. When the first power equipment position became available on January 13, 2003, Plaintiff accepted the position. After another short-term disability leave from February 19, 2003 to July 14, 2003, Donaldson returned to the position for which he was employed on January 13, 2003 (See Def.'s App. Exh. G at 25-36, Aff. of Jeff Watson, Distribution Center Manager).
II. Analysis
A. Summary Judgment — Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510). Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on his pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Anderson v. Liberty Lobby, Inc., 477 US at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Wallace v. Tex. Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96. 98 (5th Cir. 1996). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Plaintiff's claims, drawing all factual inferences and making all credibility determinations in his favor. However, 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." Celotex Corp., 477 U.S. at 322. B. Applicable Law 1. Title VII
Title VII prohibits covered employers from discriminating against "any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
2. Analytical Framework
A plaintiff can prove discriminatory animus by either direct or circumstantial evidence. Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). If a plaintiff elects the former approach, the plaintiff must offer "direct" evidence of discrimination, defined as "evidence that, if believed, proves the fact of intentional discrimination without inference or presumption." Woodhouse v. Magnolia Hospital, 92 F.3d 248, 252 (5th Cir. 1996) (citation omitted). If a plaintiff produces direct evidence, the burden of persuasion shifts to the defendant to prove that it would have taken the same action regardless of discriminatory animus. Standstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 252-53, 109 S.Ct. 1775, 1792(1989).
Alternatively, a plaintiff may prove intentional discrimination via indirect or circumstantial evidence. The indirect approach is governed by the familiar, tripartite burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Standstad, 309 F.3d at 896.
Donaldson has proffered no evidence of direct evidence of racial animus, therefore the burden-shifting framework set forth in McDonnell Douglas applies. Preliminarily the plaintiff must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000). In order to establish a prima facie case of race discrimination a plaintiff must present competent evidence to show (1) he belongs to a protected class, (2) that he was qualified for his position, (3) that he suffered an adverse employment action, and (4) that his employer sought to replace him with a person outside the protected class. See, e.g., Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
It is undisputed that Donaldson has satisfied the first two requirements of a prima facie showing. However issue is joined on the latter two elements. Plaintiff's initial EEOC complaint (See Def.'s App. Exh. A) relates to a statement attributed to his supervisor on or about August 1, 2001 and the issuance of a disciplinary warning on October 4, 2001. In order to satisfy the third element Donaldson must show that he suffered an adverse employment action, i.e. an "ultimate employment decision" such as "hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak, 104 F.3d 702, 707 (5th Cir. 1997). The mere incidence of a written warning does not constitute an adverse employment action. Further since there is no claim that the warning resulted in Donaldson being replaced by another he cannot satisfy the fourth element of a prima facie showing.
In his response to Defendant's motion Plaintiff alleges numerous statements attributed to his supervisors. Although such remarks, when properly authenticated in materials filed in response to a motion for summary judgment, may constitute evidence of discriminatory animus, thus raising issues of fact, such remarks themselves are insufficient to establish a prima facie showing of a Title VII violation.
Donaldson's second EEOC complaint (See Def.'s App. Exh. C) claims that Defendant's warehouse manager, Jeff Weston, refused to allow him to continue to perform light duty upon his return to the workplace. Essentially, his complaint claims that he was subject to disparate treatment when compared to that of a non-Black employee, Maria Guerrero, whom he claims to have been similarly situated.
In support of its motion for summary judgment on this claim Defendant has submitted the affidavit of Jeff Weston which in pertinent part refutes Plaintiff's allegation that his job duties were the same as those of Ms. Guerrero ( See Def.'s App. Exh. G). More to the point his affidavit describes the minor nature of her injury and the fact that she resumed all of her regular duties on the first work day following her minor injury. As noted above Plaintiff was out on short-term disability from March 12, 2002 until he returned to work on March 26, 2002.
Weston's affidavit further relates that on March 26, 2002 he observed Plaintiff on thirteen occasions during which Donaldson was either away from his light work assignment work station or was not performing his job, and that he accomplished only one-eighth of the bulb labeling which should have been accomplished in the eight hour shift. Weston concluded by noting that there were no other light work assignments available in which Plaintiff could have been placed. Donaldson has not refuted any of the statements made by the warehouse manager in his response. Despite the absence of any sworn statement in opposition to the facts recited in Weston's affidavit, even if the statements in Plaintiffs opposition be given credence, the fact that the manager purposefully observed him on numerous occasions on his first day on the job after a two week disability leave of absence is not a circumstance from which a reasonable fact finder could conclude that the extension of Plaintiff's leave of absence was racially motivated.
In point of fact Plaintiff's untimely filed response to Defendant's motion contains no competent materials in opposition to Defendant's summary judgment evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. at 256-57, 1065 S.Ct. at 2514.
In his final employment discrimination claim Donaldson alleges that Osram Sylvania retaliated against him ( See Pl.'s First Am. Compl. at 4). Although the elements which a plaintiff must prove to establish unlawful retaliation differ from those which must be proved under an employment discrimination claim, the McDonnell Douglas burden-shifting structure is equally applicable. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
Neither party has submitted a copy of the EEOC complaint alleged to have been filed on August 20, 2002. However in light of the close proximity between Plaintiff's temporary lay-off on August 16, 2002 and August 20, 2002, the court assumes that Donaldson asserts that he was laid off in retaliation for having filed two previous complaints with the EEOC (See also Pl.'s Resp. filed on Nov. 7, 2003 at 4 ¶¶ 11-12). Further neither party has submitted a right-to-sue letter issued by the EEOC upon its disposition of the August 20, 2002 complaint. Ordinarily a right-to-sue letter is a prerequisite of a judicial action alleging discrimination. However, the Fifth Circuit recognizes an exception to this requirement with respect to a retaliation claim arising out of an earlier charge. See Gupta v. E. Tex. State University, 654 F.2d 411, 414 (5th Cir. 1981).
This burden on the employer is only one of production, not persuasion, involving no credibility assessments. See Tex. Department of Community Affairs v. Burdine, 450 U.S. 248, 255-56 101 S.Ct. 1089, 1094-95(1981).
Osram Sylvania does not claim that Donaldson has failed to demonstrate a prima facie claim of retaliation. Rather it proffers evidence of a legitimate, non-discriminatory reason for its decision. Defendant's summary judgment evidence shows that a force reduction was required due to a drop in business and that under the seniority system employed at the Carrolton facility, Plaintiff, being the most junior employee, was laid off ( See Def.'s App. F, Aff. of Roland Schnippering with attachments at 19-24).
In the face of this production by Defendant the burden of proof shifts back to Plaintiff to demonstrate that the articulated reason for his lay-off was merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 2749-50 (1993).
An employer is entitled to summary judgment "if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination occurred." See Pratt v. City of Houston, Texas, 247 F.3d 601, 606 (5th Cir. 2001) (quoting Reeves, 530 U.S. at 148, 120 S.Ct. at 2109); see also Vadie v. Mississippi State University, 218 F.3d 365, 372 (5th Cir.) (an employer is entitled to judgment as a matter of law "if the evidence taken as a whole would not allow a [fact-finder] to infer that the actual reason for the [employer's decision] was discriminatory").
Donaldson has presented no competent evidence in response to Defendant's evidence from which a reasonable fact finder could conclude that the reason given for his lay-off in August 2002 was false or was otherwise a pretext for retaliation. Therefore Defendant is entitled to summary judgment on Plaintiff's retaliation claim.
3. Intentional Infliction of Emotional Distress
In addition to his claims brought under Title VII Plaintiff seeks damages pursuant to his state law claim for the intentional infliction of emotional distress (See Pl.'s First. Am. Compl. at 5). The elements of this tort are governed by state law. See Twymen v. Twymen, 855 S.W.2d 619, 621-22 (Tex. 1993). Further, it is for the court to determine, in the first instance, whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. The Texas Supreme Court, in Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993), further defined outrageous conduct as that which "goes beyond all possible bounds of decency, so as to be regarded as atrocious, and utterly intolerable in a civilized community." Id. As noted above, Donaldson has failed to present any competent evidence to show that conduct directed toward him was consistent with the elements of proof required to prove intentional infliction of emotional distress. Even if the alleged statements set out in his response to Defendant's motion for summary judgment be accepted as true, they fall far short of the type of conduct which a fact finder might reasonably regard as "beyond all possible decency." See Id.