Opinion
Civil Action No. 3:98-CV-2866-P.
May 2, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff filed this action alleging that Defendant violated Title VII by retaliating against him when he opposed a pattern of discrimination against employees of Middle Eastern descent perpetrated by his supervisor. The Court referred the case to United States Magistrate Judge Jeff Kaplan for case management pursuant to 28 U.S.C. § 636(b). Defendant filed a motion for summary judgment on January 6, 2000. On February 28, 2000, Magistrate Judge Kaplan issued Findings and Recommendation of the United States Magistrate Judge, which found that Plaintiff failed to prove that he engaged in any protected activity and that even if Plaintiff could make a prima facie case of retaliation, he could not demonstrate Defendant's legitimate, nondiscriminatory reason for his termination was pretextual. Accordingly, Magistrate Judge Kaplan recommended that Defendant's motion for summary judgment be granted in its entirety.
Magistrate Judge Kaplan also recommended summary judgment as to plaintiff's claims for negligent supervision due to his failure to address the cause of action in his response to defendant's motion for summary judgnent. Plaintiff did not object to this finding. In fact, on March 15, 2000, plaintiff filed a Motion for Partial Dismissal of his state claim of negligent supervision. Accordingly, the Court ADOPTS Magistrate Kaplan's recommendation and GRANTS summary judgment as to the state claim.
I. Background
The following facts are taken directly from the Magistrate's Findings and Recommendation. Plaintiff Robert Lee Erlinger, a Caucasian male, was hired as a Regional Vice-President for DenAmerica Corporation in 1994. (Plf. Complaint ¶ 7; Plf. App. at 8). DenAmerica owns and operates Denny's restaurants throughout the United States. As part of his duties, plaintiff supervised district managers in Texas and 11 other states. (Plf. App. at 8). Two of his managers, Said Mezayek and Mabmoud Bayrami, are of Middle Eastern descent. ( Id. at 9). Plaintiff's immediate supervisor was Paul Bier, Vice-President of Operations.In November 1996, plaintiff investigated a complaint filed against Mezayek by the general manager of a Denny's restaurant in Huntsville, Texas. Delinda Rushing reported that Mezayek was controlling and unapproachable. "He was always angry when he came around. Do this. Put this down. Do it this way . . . He told me, `I don't give a damn if you ever see your husband. . . . He was always questioning me." (Def. App. at 149). Plaintiff counseled Mezayek to work on his communication skills and treat Rushing with "dignity and respect." ( Id. at 151).
Three months later, Bier made an unannounced visit to the Huntsville restaurant. He was immediately confronted by the restaurant manager, Andy Clark, who complained about Mezayek's management style. ( Id. at 141-42). Clark said that Mezayek had recently called him at home and was "extremely unprofessional and verbally abusive." ( Id.). This deterred Clark from expressing his concerns about a staffing shortage "for fear of losing his job." ( Id.). When Bier attempted to discuss the situation with Mezayek, he became "verbally abusive in tone and demeanor to [Clark]." Bier perceived this conduct as defensive and retaliatory. ( Id.). He demoted Mezayek to the position of general manager because his "abusive, retaliatory nature has not allowed an open, non-intimidating, hostile free workplace." ( Id. at 140).
Bier also reprimanded plaintiff for failing to identify and decisively act on Mezayek's inappropriate behavior, Plaintiff was warned that "[s]hould future negligence in your supervision of subordinates occur, further disciplinary action up to, and including termination, will be taken." ( Id. at 143). Plaintiff responded to this warning in a memo dated April 10, 1997. He stated that "[t]his correspondence is intended to establish that there has been no neglect on my part, in regard to supervision." (Def. App. at 145). Plaintiff told Bier that he previously counseled Mezayek about his behavior and had not been informed of any further problems during field visits to the restaurants. He asked Bier to review the incident and rescind his reprimand. ( Id.).
Plaintiff tempered his protest in a second memo to Bier on April 12, 1997. This time, he acknowledged that "your comments are well taken and where applicable, there will absolutely be improvement to meet or exceed company standards." (Def. App. at 146-47). However, plaintiff pointed out that his region had exceeded company standards and that his own performance had "significantly improved." ( Id.).
In May 1997, Bier learned that Mahmoud Bayrami had solicited several Denny's employees to work for a Kettle restaurant owned by his wife. ( Id. at 157-58). Plaintiff knew that Bayrami's wife owned a competing restaurant franchise, but he denied any knowledge of illicit recruiting activities. ( Id. at 105-07). Bier criticized plaintiff for failing to bring this potential conflict of interest to the attention of his supervisors and for not conducting exit interviews with the departing employees. ( Id. at 156). On June 3, 1997, plaintiff was terminated for "negligence in supervision of subordinates." ( Id. at 136)
Plaintiff objects to this factual finding as unsupported by the Defendant's evidence. (Def. Obj. at 2). In support of this finding, the record contains a memo in which Bier relates the verbal account of Phyhis Scott, a general manager of Denny's whom Bayrami allegedly solicited to work for Kettle. (Def. App. at 157-58). In the memo, Scott also recounts the story of Michelle Gaines, another general manager of Denny's also solicited by Bayrami. Scott also stated that while working at Kettle for Bayrami, she saw food items she suspected belonged to Denny's. Regardless of whether the allegations are true, the memo goes to Denny's state of mind in taking action against both Bayrami and the plaintiff Plaintiff's objections did not point to any summary judgment evidence to rebut these allegations. The court overrules Plaintiff's objection to this finding of fact.
Bayrami was terminated the same day for "conflict of interest." (Def. App. at 153-54).
II. Discussion
A. Standard of ReviewPursuant to 28 U.S.C. § 636(b), this Court will make a de novo determination of those specified proposed findings and recommendations to which the parties make a written objection. Within ten days after being served with a copy, the parties shall make any objection to such proposed findings and recommendations. 28 U.S.C. § 636. After review, this Court may accept, reject, or modify the findings and recommendations of the magistrate. Fed.R.Civ.P. 72(b).
Defendant moves for this Court to overrule plaintiff's objections as improper because plaintiff's objections present the same arguments and evidence presented to the Magistrate. As this Court's review of the Magistrate's Finding and Recommendation is de novo, defendant's argument is unmeritorious and plaintiff's objections are proper. Defendant also objects on the basis that the objections are frivolous and conclusory. The Court overrules this objection as well.
B. 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 genuine 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 he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his 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; Abbot v. Equity Group, Inc., 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 is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id.
C. Title VII Retaliation Claims
Plaintiff claims Denny's terminated him in retaliation for his refusal to participate in discrimination against managers of Middle Eastern descent. Neither party objected to the legal standard used by the Magistrate in evaluating plaintiff's claims.
In order to make a prima facie case of retaliation, plaintiff must show that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its decision. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Once the defendant makes this showing, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the defendant's proffered reason is merely a pretext for retaliation. Id.
Plaintiff's first objection goes to Magistrate Kaplan's finding that plaintiff failed to show his participation in protected activity. He first argues that plaintiff had a good faith reasonable belief that the defendant's discriminatory acts violated the law. Magistrate Kaplan doubted neither plaintiff's belief that discrimination occurred nor plaintiff's private opposition to the alleged discrimination. Rather, the Magistrate correctly found that the April 10th and 12th memos sent by plaintiff to his supervisors did not constitute an opposition sufficient to fall within the realm of protected activity under Title VII.
An employee engages in protected activity within the meaning of Title VII if he has either (1) opposed an unlawful employment practice under Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a). The statute does not require the emp]oyee to participate in formal opposition to an employment practice, rather, the prohibition of retaliation also protects employees who use informal methods to voice their complaints. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) ("In addition to protecting the filing of formal charges of discrimination, § 704(a)'s opposition clause protects as well informal protests of discriminatory practices."). Such informal means include "making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges." Id. However, an employee's statement cannot be deemed to be in opposition to an unlawful employment practice unless it refers to and opposes a specific practice of the employer. See DuPont-Lauren v. Schneider, Inc., 994 F. Supp. 802, 823 (S.D. Tex. 1998) (holding employee's statement did not constitute opposition where she made vague comments that failed to apprise employer of any particular practices she viewed as discriminatory or unlawful, nor did she accuse any particular co-worker or supervisor of discrimination). At the very least, if the statement does not mention a specific act of discrimination, the employer must be able to discern from the context of the statement that the employee opposes an allegedly unlawful employment practice. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-13 (9th Cir. 1983) (finding employee engaged in protected activity where he issued a letter accusing his employer of "racism" and "discrimination" because the allegedly unlawful employment practices protested by the employee could be discerned from the context of the letter).
Erlinger relies upon his letters of April 10th and 12th to establish the protected activity he engaged in to oppose Denny's unlawful employment practice of discriminating against people of Middle Eastern descent. (Pl. App. at 34-36). However, neither of the letters mention any alleged discrimination by Bier or anyone else at Denny's. In fact, the April 10th letter states, "[t]his correspondence is intended to establish that there has been no neglect on my part, in regard to supervision," and seeks to have the reprimand expunged from his file. ( Id. at 34). Though he does refer to Mezayek in the letter, the references relate more to Erlinger's defense of his own supervision of Mezayek rather than any discrimination towards Mezayek. After reading the letter and considering its context, the Court finds that the letter would not put Denny's on notice of Erlinger' s alleged opposition to Denny's discriminatory practices. The April 12th letter suffers similar deficiencies. In fact, the second letter does not even mention either Mezayek or Bayrami. Nor does the letter mention any discrimination by Denny's. Rather, it focuses on Erlinger's performance and his region's performance rating within the company. ( Id. at 35). The fact that "Erlinger did not feel comfortable complaining about Bier's discriminatory acts to" Bier's supervisor because they were friends does not somehow transform these two letters into protected activity.
As Erlinger has failed to establish a prima facie case of retaliation under Title VII, his claims must fail as a matter of law. Therefore, the Court may adopt the Magistrate's Findings and Recommendation without further addressing plaintiff's objection to the Magistrate's finding that he failed to meet his burden in proving that defendant's proffered legitimate business reason for terminating Erlinger were pretext for retaliation.
III. Conclusion
For the reasons stated herein, the Court ADOPTS the Findings and Recommendation of the United States Magistrate Judge and GRANTS defendant's summary judgment as to all claims.