Friend v. Interior Systems, Inc.

Full title: WILLIAM FRIEND, MICHELLE HUCKABY, ETHEL CARTER, GLORIA COLAS, CHERRY POPE…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: May 23, 2002

3:00-CV-2170-P (N.D. Tex. May. 23, 2002)

Opinion

3:00-CV-2170-P

May 23, 2002

MEMORANDUM OPINION AND ORDER

JORGE A. SOLIS, United States District Judge.

Before the Court are:

1. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Deborah Beasley, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

2. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Ethel Carter, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

3. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Gloria Colas, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

4. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of William Friend, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

5. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Cherry Pope, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

6. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Paul Samples, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

7. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Dian Roland, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

8. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Corey Huckaby, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

9. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Melody King, filed December I 7, 2001, Plaintiffs' Response, and Defendant's Reply;

10. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Larry King, filed December 17, 2001, Plaintiffs' Response, and Defendant's Reply;

11. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Jane Jones, filed December 31, 2001, Plaintiffs' Response, and Defendant's Reply;

12. Defendant Cushman Wakefield's (CW) Motion for Summary Judgment with Respect to All Claims of Michelle Huckaby, filed December 31, 2001, Plaintiffs' Response, and Defendant's Reply; and

13. Defendant ISI Professional Services' (ISI) Motion for Summary Judgment, filed January 14, 2002, Plaintiffs' Response, and Defendant's Reply.

After considering the parties' arguments and briefing, the summary judgment evidence, and the applicable law, the Court GRANTS Defendant CW's Motions for Summary Judgment as to the claims of William Friend, Michelle Huckaby, Ethel Carter, Gloria Colas, Cherry Pope, Paul Samples, Dian Roland, Deborah Beasley, Larry King, Melody King, Corey Huckaby, and Jane Jones and GRANTS ISI's Motion for Summary Judgment. The Court has also considered the various objections to summary judgment evidence that the parties have made. Where appropriate, the Court has considcrcd these objections when evaluating the evidence. The rest of the objections are DENIED AS MOOT.

I. Background

Plaintiffs filed their Complaint alleging employment discrimination and violation of the Fair Labor Standards Act (FLSA) on October 3, 2000. Each of the Plaintiffs was employed, at different times, by Cushman Wakefield National Corp. (CW), and ISI Professional Services, Inc. (ISI). Plaintiffs worked at a mail sorting facility; all worked on the second shift although they did not hold identical jobs.

The mail sorting facility where Plaintiffs worked was located on Alpha Road in Dallas, Texas ("Alpha Road Facility"). Plaintiffs allege that Defendants CW and ISI formed a partnership in 1993. Pls.' Second Amend. Compl. ¶ 5 (hereinafter "Complaint"). However, for the purposes of these motions, it is only relevant to note that Plaintiffs were employed by Cushman Wakefield National for the period between October 1997 and July 31, 1999. Plaintiffs' employment with CW was terminated on July 31, 1999. See, e.g. CW Friend App. at 20. ISI took control of the Alpha Road Facility on August 1, 1999. CW Friend App. at 89-98.¹ Upon Plaintiffs' termination from CW, they became ISI employees. ISI App., Ex. 88, at 3; Ex. 89, at 2.²

1 Before the Court are several appendices offered by the parties. For the motions brought by CW, a particular appendix will be referred to as "CW [Plaintiff] App." ISI's appendix will be referred to as "ISI App." Plaintiffs refer to one set of documents in response to both of Defendants' motions, referred to as "Pls.' App." and "Pls.' Supp. App."

2 Plaintiffs assert that CW and ISI should be jointly responsible for any claims brought by Plaintiffs during the period after August 1, 1999 because CW and ISI were jointly responsible for the Alpha Road Facility. The Court will consider this joint liability theory in its discussion of the substantive law below.

Although the determination of these motions is largely a fact-specific inquiry based upon each individual Plaintiffs claims, there are certain facts that are germane to understanding the functioning of the Alpha Road Facility for all of the Plaintiffs.

During the period of Plaintiffs' claims, the general manager of the Alpha Road Facility was Roger Ebert, a white male. Prior to his employment at the Alpha Road Facility, Ebert worked at Mailbox, Inc. ISI App. at 88, ¶ 1-2. While at Mailbox, Inc., Ebert knew or worked with Plaintiffs William Friend, Michelle Huckaby, Deborah Beasley. and Ethel Carter. ISI App. Ex. 88, ¶ 1. Ebert hired these four Plaintiffs for CW to work at the Alpha Road Facility. Id. Subsequently, the other plaintiffs were hired by CW.³ Id.

3 Most of the additional plaintiffs were related either (I) to Friend, Michelle Huckaby, Beasley or Carter, (2) to each other, or (3) both. ISI App., Ex. 88, ¶ 2.

Ebert was ultimately terminated by ISI on March 29, 2000. ISI App., Ex. 89, ¶ 6. Ebert was terminated for his role in a mail fraud scheme that ultimately lead to his criminal indictment on March 23, 2000. ISI App., Ex. 88, ¶ F1. Ebert plead guilty in July 2000 to the charges brought against him. ISI App., Ex. 88, ¶ F2.

The Alpha Road Facility provided customers with various mail sorting services. Because the United States Postal Services (USPS) offers a discount in postal rates to customers who sort their own bulk mail, clients would have their mail sorted at the Alpha Road Facility before sending it to the post office. ISI App., Ex. 89 ¶ A4. To cover the costs of postage, clients would deposit money into a trust fund account controlled by the USPS. ISI App., Ex. 89, ¶ A5. The Alpha Road Facility employees reported to the USPS, submitting postage reports based upon the postage required for the bulk mail sorted at the Alpha Road Facility. Id.

ISI learned in November 1999 that the USPS was conducting a criminal investigation into the operation of the Alpha Road Facility. ISI App., Ex. 89, ¶ C1. Morton Taubman, ISI's General Counsel, leirned of the investigation from a CW official. Id. Taubman was informed by USPS investigators that Ebert was the target of their investigation. Id. The allegations the USPS investigated included a payroll fraud scheme and the embezzlement of funds from the client trust accounts. ISI App., Ex. 89, ¶ C2. Ebert was alleged with withholding forms that would inform the USPS the amount of mail processed at the Alpha Road Facility, thereby denying USPS of the funds it should have been receiving to cover the costs of postage for the mail coming from the Facility. Id.

Ebert was suspended as general manager while ISI internally investigated these claims. ISI App., Ex. 89, ¶ C3. ISI's internal investigation uncovered additional employee wrongdoing. Specifically, the ISI investigation lead Taubman to determine that ninety percent of the withheld USPS fornm were prepared by Friend or Michelle Huckaby. Id. Allegedly "missing" documents were discovered in Michelle Huckaby's locker. Id. Ebert made cash payments to both Friend and Michelle Huckaby. Id. Taubman also believed that an additional ISI employee, Martha Litton, a white woman, was involved in Ebert's scheme. ISI App., Ex. 89, ¶ C5.

Ebert was indicted on March 23, 2000, and charged with various felony counts, based upon the alleged payroll fraud scheme and the postage fraud and embezzlement scheme. ISI App., Ex. 9. A later criminal information charged Ebert with embezzling $5.8 million dollars through the various schemes. ISI App., Ex. 65.

ISI concluded that Friend, Michelle Huckaby, and Litton were involved with Ebert's scheme, or that their mismanagement of the second shift justified their termination. ISI App., Ex. 89, ¶ F1. Taubman did not terminate Friend and Michelle Huckaby because he sought their cooperation in meeting with USPS investigators. ISI App., Ex. 89, ¶ F2. Friend and Huckaby met with USPS investigators on March 28 or 29, 2000. ISI App., Ex. 89, ¶ F4. Thereafter, Ebert, Friend, and Huckaby were terminated. ISI App., Ex. 89, ¶ F5. Litton was terminated on April 25, 2000. Id.

On March 28, 2000, a meeting was held with several of the second shift black employees and ISI President Earl Jenkins, who is also black. Plaintiffs requested this meeting to discuss their concerns about racial discrimination at the Alpha Road Facility. Some Plaintiffs now claim that they were retaliated against and fired for requesting and attending the meeting.

Subsequently, the second shift at the Alpha Road Facility was eliminated altogether. ISI. App., Ex. 89, ¶ G. Taubman asserts that this decision was made due to a drop in business after the allegations of the mail fraud scheme became public. Id. It was at this time that several of the Plaintiffs were terminated by ISI.

CW ultimately returned to operating the Alpha Road Facility on October 13, 2000. ISI App., Ex. 89, ¶ A3. At that time, any ISI employees were terminated as ISI employees; if they continued to work at the Alpha Road Facility, they formally became CW employees. Id.

Plaintiffs amended their Complaint twice, and sought to amend it a third time, adding claims of race discrimination in hiring. The Court denied their motion to amend on April 5, 2002, because their motion was untimely and because the underlying facts were known to Plaintiffs earlier in this litigation and should have been pleaded before the late date of their motion.

Now both Defendants move for summary judgment. Because the inquiry is necessarily factspecific to each Plaintiff and because Plaintiffs bring different claims, the Court will set out the legal standards applicable to Plaintiffs' claims and examine the specific facts surrounding each Plaintiffs employment separately.

II. Legal Standards

A. Motion for Summary Judgment

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 fads 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, cone lusory 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. 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 evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.

B. Section 1981 Claims

1. Discrimination

Section 1981 provides that "all persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a) (2001).⁴ Claims of racial discrimination brought under this statute are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997) (citing LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996)). Thus, in order to establish a violation under Section 1981, the plaintiff must prove a prima facie case of intentional discrimination. See Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997) (citing Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)).

4 For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. See 42 U.S.C. § 1981(b) (2001).

As a threshold matter, to establish a claim under Section 1981, a plaintiff must allege facts that show: 1) she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned the "making and enforcing" of a contract. See Id. (citing Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994)); see also Daniels v. Worldcom Corp., No. CIV.A. 3:97-CV-0721-P, 1998 WL 91261 at *5 (N.D. Tex. Feb. 23, 1998) (Solis, J.) (acknowledging the need for plaintiff to show the existence of a contract between herself and defendant in order to maintain a Section 1981 action).

2. Racial Harassment

To establish an actionable claim of racial harassment in the workplace, Plaintiff must prove that: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on race; (3) the harassment affected a term, condition, or privilege of employment; and(S) the employer either knew or should have know about the harassment and failed to take prompt remedial action. Nash v. Electrospace System, Inc., 9 F.3d 401 (5th Cir. 1993) (discussing prima facie case in the context of sexual harassment); McCray v. DPC Indus., Inc., 942 F. Supp. 288, 292 (ED. Tex. 1996). In order to show that the harassment affected a term, condition, or privilege of employment, Plaintiff must show more than isolated incidents of racial harassment; she must demonstrate "a steady barrage of opprobrious racial comments." McCray, 942 F. Supp. at 293 (citing Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995)). Further, Plaintiff must show that the discriminatory conduct was so severe or pervasive that it created an objectively hostile work environment. See Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

3. Retaliation

Plaintiffs also sue for retaliation under section 1981. In order to prove a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1995). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its decision. Sherrod v. American Airlines, Inc., 132 F.2d 1112, 1122 (5th Cir. 1998). The plaintiff must then adduce evidence that the reason articulated by the defendant is merely a pretext for retaliation. Id. This requires the plaintiff to prove that she would not have suffered the adverse employment action "but for" her complaints of discrimination. Id.; Long, 88 F.3d at 308.

4. Joint Employer Liability for Discrimination

Plaintiffs argue that CW and ISI should be held jointly responsible for any employment discrimination that occurred while Plaintiffs were employed at the Alpha Road Facility during the period that ISI controlled the facility. Plaintiffs provide two theories of joint liability. First, they claim that ISI was a "joint employer" with CW and therefore jointly responsible for any discrimination. Second, they argue that ISI was acting as CW's agent and therefore should be liable. The Court does not find either of these arguments persuasive and will consider CW liable for any discrimination that occurred during the period prior to July 31, 1999 and after October 13, 2000, and ISI liable for any discrimination that occurred between August 1, 1999 and October 12, 2000.

Plaintiffs point to the decision of Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983) to support their assertion that CW and ISI are joint employers. In that case, the Fifth Circuit Court of Appeals noted that "the rule has emerged that superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control." Id. at 404.

Plaintiffs' argument appears to be that CW and ISI can be considered joint employers for the period between August 1, 1999 and October 13, 2000, when ISI took over "operational control" of the Alpha Road Facility. However, Plaintiffs' argument is flawed. Although there was a joint venture agreement signed on March 25, 1999, this agreement is between ISI and Cushman Wakefield of Michigan, Inc. ("CW Michigan). CW Friend App. at 80-88. An additional document was signed on August 1, 1999, a "Consent and Operating Agreement." Id. at 89-95. This agreement is also between ISI and CW Michigan. Id. CW Michigan has never been named as a party in this lawsuit, so even if there might be an argument for the imposition of joint liability, the proper party is not now before the Court.

However, even if CW Michigan had been named a party, Plaintiffs have not provided any evidence to demonstrate that CW and ISI should be considered joint employers pursuant to the factors noted in Trevino. There is no evidence of any interrelation of operations, centralized control of labor relations, common management, or common ownership or financial control. In fact, as noted above, CW and ISI specifically severed the employee relationships when ISI assumed control of the Alpha Road Facility. CW terminated each of its employees on July 31, 1999, and the employees became ISI employees on August 1, 1999.

Plaintiffs' agency argument is based upon a statement made by Taubman in his deposition testimony. Taubman stated that the joint venture agreement required the additional consent of EDS, the company that houses the mail sorting facility. Pls.' App. at 4. Taubman went on to say that "[a]s a result of EDS never acquiescing or consenting to the assignment, therefore having an agreement that hasn't ben completed, we acted as an agent, and therefore, we believe we didn't assume any liabilities under the contract, but acting as an agent on behalf on CW, CW being the principal." Pls.' App. at 5. It should be noted that Taubman prefaced this remark with, "I don't want to give a legal conclusion. I'm not so sure I'm equipped to give a legal conclusion." Id.

Taubman's remarks do not provide the basis for agency liability for CW in this case. The same problem exists as with the joint employer theory, that is, CW was never a party to these agreements. Instead, the agreements were between ISI and CW Michigan. If there is a principal to be charged with liability, it is an entity that is not a party to the instant action. Thus, the Court rejects Plaintiffs' arguments that CW and ISI are jointly responsible for any discriminatory acts after August 1, 1999. Instead, because only CW National is before the Court, if any discrimination is found to have occurred between August 1, 1999 and October 13, 2000, liability can only be found against ISI.

C. Fair Labor Standards Act Claims

Finally, Plaintiffs bring claims pursuant to the Fair Labor Standards Act (FLSA). Plaintiffs variously allege that they were denied payment of overtime wages. The FLSA prohibits this and the statute requires that "no employer shall employ any of his employees . . . for a work-week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1) (2002). The Fifth Circuit Court of Appeals has described the purpose of the FLSA to "providc employees with ajudicial remedy in the federal courts to enforce the statutory right to minimum wages and overtime pay claims against employers." Williams v. Cigna Financial Advisors Inc., 197 F.3d 752, 758 (5th Cir. 1999).

III. William Friend ⁵

5 Defendant Cushman Wakefield moved separately against each Plaintiff for summary judgment. Defendant ISI filed one motion against all of the Plaintiffs. Plaintiffs responded separately to CW's motions, but Plaintiffs' Responses to the individual CW and ISI motions are substaniively similar. Therefore, although the Court considers each Plaintiff separately, because of the substantial overlap of legal and factual issues involved, and because Plaintiffs responses to these motions are quite similar, the Court will address much of Plaintiffs' reasoning in its discussion of the application of the law as to William Friend. However, the reasoning herein is equally applicable to each of the other Plaintiffs.

A. Factual Background

Plaintiff William Friend was employed by CW to work at the Alpha Road Facility on December 15, 1997. CW Friend App. at 34. Friend was hired for the facility's second shift as a supervisor. CW Friend App. at 17. Friend was terminated by ISI on March 29, 2000. Friend filed a Charge of Discrimination with the EEOC on August 11, 2000. CW Friend App. at 51.

B. Section 1981 Claims

1. Failure to Promote

Friend claims that he was discriminated against twice by CW for their failure to promote him to the position of superintendent. Friend testified that he believes he was discriminated against in the summer of 1998 and in December 1998 for CW's failure to promote him to the position of superintendent. CW Friend App. at 37. Because these events preceded the August 1, 1999 change of control from CW to 181, the Court will consider this claim only as to CW's potential liability.

Friend must first establish a prima facie case of discrimination. Friend has shown that he is in a protected class. Defendants do not dispute Friend's qualification for the job. Friend suffered an adverse employment discrimination in CW's failure to promote him. Defendants dispute the fourth element and argue that Friend has no evidence of favorable treatment of a similarly situated non-minority.

Rich Esser was promoted to superintendent in the summer of 1998, and Pat Thompson received the job in December 1998. Friend maintains that he was more qualified that Esser. CW Friend App. at 36. However, Friend also testified that he never asked the manager, Ebert, for the position because he "didn't know the exact day Rich was leaving" although Friend also stated that he did not know that the vacancy existed. Id. at 37. Friend also claims that he was more qualified than Thompson. Defendants point out that Thompson had more seniority than Friend and was promoted before Friend had worked at CW for an entire year. Id. at 36. Defendants point to Esser and Thompson's longer service with CW as a non-discriminatory justi ficati on for their promotion over Friend.

Before addressing whether Defendants' asserted reasons were pretextual, the Court considers Defendants' argument that Friend's claims for discriminatory actions are barred by the statute of limitations. Defendants argue that the applicable statute of limitations is two years. "The appropriate state statute determines the limitations period for a claim predicated upon section 1981. Under Texas law, the two-year limitations period . . . applies to section 1981 actions. The filing of a charge wiih the EEOC does not toll the statute of limitations applicable to a section 1981 claim based on the same discriminatory event." Gonzales v. Firestone Tire Rubber Co., 610 F.2d 241, 250 (5th Cir. 1980).

CW was not named as a defendant in this action until Plaintiffs filed their second amended complaint, on February 6, 2001. Therefore, Defendants argue that Plaintiffs can only bring claims against CW based on events that occurred before February 6, 1999. This inquiry depends on whether Plaintiffs' second amended complaint "relates back" to their original Complaint, because if it does, then Friend's claims can be considered to have been filed timely, on October 3, 2000.

The Original Complaint named as a Defendant "ISI Professional Services, a Joint Venture of ISI and Cushman Wakefield, Inc." The only summons issued with the filing of the Original Complaint was for "ISI Professional Services," A summons for Cushman Wakefield was not issued by the Court until February 8, 2001.

Federal Rule of Civil Procedure 15(c) "allows an amended pleading to relate back when: (1) it changes the party or the naming of the party; (2) the claim arose out of the conduct, transaction, or occurrence of the original pleading; (3) the party brought in by the amendment has received notice so that the party will not be prejudiced in maintaining a defense on the merits; and (4) the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." SMS Financial, LLC v. Abco Homes, Inc., 167 F.3d 235, 244 (5th Cir. 1999) (emphasis added).

Although Plaintiffs have asserted that ISI and CW are closely related, the Court has noted above that they are separate and distinct entities. Friend does not address this argument in his Response to CW's motion. CW argues that they never received notice of the instant suit until sometime af ter the second Amended Complaint and subsequent summons were filed. The Supreme Court, considering Rule 15(c) has noted, "[t]he linchpin is notice, and notice within the limitations period. of course, there is an element of arbitrariness here, but that is a characteristic of any limitations period." Schiavone v. Fortune, 106 S.Ct. 2379, 2385 (1986). The Court in Schiavone required that a party to be added must have been notified within the limitations period. However, the Fifth Circuit recognized that certain amendments to the Federal Rules affected the notice provisions of Rule 15(c). "The only significant difference between the Schivaone rule and amended Rule 15(c) is that, instead of requiring notice within the limitations period, relation back is allowed as long as the added party had notice within 120 days following the filing of the complaint, or longer if good cause is shown." Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 545 (5th Cir. 1992); see also Jacobsen v. Osborne, 133 F.3d 315, 3 19-20 (5th Cir. 1998).

Taking into consideration the additional 120 days for notice, Plaintiffs could claim that the Second Amended Complaint related back to the first if CW had received notice by February 1, 2001. In this case, the Second Amended Complaint was not filed until February 6, 2001, and a summons for CW issued until February 8, 2001. Friend has not addressed this argument, or made any showing of "good cause" that would lead this Court to exempt Friend from the application of Rule 15(c) is amended. Therefore, the Court concludes that because CW did not receive notice of the Complaint, and did not learn of the instant claims until at least February 6, 2001, Friend's claims of racial discrimination growing out of events in the summer of 1998 and December 1998 are barred by the statute of limitations.

Even if the amended complaint does relate back to the first complaint, the first instance of alleged discrimination, in the summer of 1998 would be barred by the statute of limitations, because only claims that accrued after October 3, 1998 would be actionable. As for the promotion of Thompson in December 1998, CW has provided a legitimate, non-discriminatory reason for promoting him over Friend, that is his experience and longer service with the company. Friend has provided no evidence rebutting their reason or showing that their reason is pretextual.

Therefore, the Court GRANTS CW's motion as to Plaintiff Friend's claims of racial discrimination for failure to promote.

2. Racial Harassment

Friend also asserts that he was racially harassed at work. Friend alleges that another employee, Pat Thompson, used "profanity and demeaning language" towards Friend in September 1998. Compl. ¶ 15. Friend also claims that a first shift supervisor "told the employees to speak Spanish." Compl. ¶ 18. Additionally, Friend alleges that he recommended that a Hispanic employee, Chris Davis, be terminated because Davis was insubordinate to him, but his recommencation was ignored. Compl. ¶ 17.

Friend's claims fail to demonstrate a prima facie case of racial discrimination. As noted above, to bring a racial harassment claim, comments made must be "a steady barrage of opprobrious racial comments" that rise to the level of behavior so "severe and pervasive" as to create a hostile environment. Friend has only alleged sporadic and isolated comments, and do not rise to the level of a "hostile work environment" that would underlie an actionable claim for racial harassment in violation of section 1981. Therefore, the Court GRANTS ISI and CW's motions for summary judgment for Friend on his claims of racial harassment.

3. Termination

Friend claims that his termination from ISI was racially discriminatory. Friend fails to establish a prima facie case of discrimination. As discussed above, Friend was implicated in a criminal mail fraud scheme. ISI, in response to these allegations, fired Friend, Michelle Huckaby, Ebert, and Litton. Ebert and Litton are white and therefore Friend cannot demonstrate that a similarly situated white supervisor was treated more favorably. In fact, the employees who ISI believed were involved in this scheme were treated identically, regardless of race.

Plaintiffs make several arguments in their Response attacking the credibility of Defendants' evidence showing the basis for ISI's belief that Friend and Michelle Huckaby were involved in Ebert's scheme.

First, Plaintiffs attack Ebert's declaration. Plaintiffs argue that Ebert engaged in segregated hiring. The Court does not consider this claim as it is not properly before the Court.

Plaintiffs then argue that Ebert acted alone in the mail scheme, and point to the Factual Resume in Ebert's criminal ease to show that Friend and Michelle Huckaby were not involved in the scheme Plaintiffs argue that because Ebert did not implicate Friend or Michelle Huckaby in the Factual Resume, this is proof that Ebert acted alone in the mail scheme, The Court is not persuaded that Ebert's failure to implicate Friend and Michelle Huckaby in open court is definitive proof that the two were not involved in the criminal scheme. Further, their actual involvement in the fraud is not relevant here. Defendants have shown that ISI had a reasonable belief that Friend and Michelle Huckaby were involved with Ebert in his fraudulent scheme. Such a reasonable belief is a legitimate, non-discriminatory reason for terminating their employment. Even if this belief was incorrect, the belief itself may be a legitimate, non-discriminatory reason for termination "so long as the belief is reasonable, not arbitrary, and not a likely pretext for unlawful discrimination." Bauer v. Albemark Corp., 169 F.3d 962, 967 (5th Cir. 1999). ISI learned of the wrongdoing in this case through the USPS's investigation of wrongdoing. ISI assigned its General Counsel to investigate potential wrongdoing. Not only did Taubman believe that Friend and Michelle Huckaby were involved in Ebert's fraud, but he also discovered gross mismanagement of the night shift. See ISI App., Ex. 88. Therefore, the Court finds that ISI had a reasonable belief that Friend and Michelle Huckaby were involved in Ebert's wrongdoing, and even if they were not engaging in criminal behavior, they were mismanaging the night shift. Finally, Friend himself admits in his deposition testimony ihat he lied to postal workers on four occasions. ISI App., Ex. 79, at 233-37.

Next, Plaintiffs attack the evidence of Earl Jenkins, William Marcellino, and Taubman, and argues that the summary judgment motion cannot be decided without assessing the credibility of their testimony. Plaintiffs argue for several pages about alleged inconsistencies and misstatements in the testimony of these three individuals. The Court finds that it is able to find that few fact issues exist in this case. There is competent summary judgment evidence that is before the Court which undermines Plaintiffs' allegations of prima facie cases of discrimination or shows adequate nondiscriminatory reasons for employment decisions. Therefore, the Court does not find these credibility issues to create an issue of fact for trial.

Plaintiffs also allege that Ebert's termination on the same date as Friend and Michelle Huckaby's termination was a "cynical ploy to cover up the termination of Friend and Huckaby, right after attending the meeting of Black employees." Friend's Resp. at 35-36. The Court finds absolutely no evidence of such an attempt. It appears that the date of the meeting and Friend and Michelle Huckaby's terminations were the same, but ISI has provided ample justification for its decision to terminate the two employees. The Court finds that the evidence does not support this conspiracy theory; Plaintiffs allege that ISI fired an employee who had already been criminally indicted to cover up the racially discriminatory firing of two employees that ISI had reason to believe were involved in the fraudulent scheme.

For the foregoing reasons, the Court GRANTS ISI's motion for summary judgment on Friend's termination claim.

4. Retaliation

Friend also claims that he was fired in retaliation for his complaint to his employer about racial discrimination. CW Friend App. at 51 (EEOC Charge of Discrimination). Friend complained that he was fired on March 28, 2000 for a complaint made on March 28, 2000. Id. As discussed above, the Court finds that ISI was justified in terminating Friend, and Friend's termination was based not on his complaint during the March 28, 2000 meeting, but rather upon ISI's belief that Friend was involved in Ebert's fraudulent schemes and because ISI found that Friend had mismanaged the night shifi. Friend cannot show any causal connection between the March 28, 2000 meeting and his termination, nor can Friend show that he would not have been fired "but for" his complaint of racial discrimination. Therefore, the Court GRANTS ISI's motion for summary judgment as to Friend's claim of retaliation.

C. FLSA Claim

Plaintiff Friend's FLSA claim fails because he admitted in deposition testimony that during the time he worked for CW and ISI, he was paid all the wages to which he was entitled. CW Friend App. at 35. Therefore, the Court GRANTS CW and ISI's motions for summary judgment as to Friend's FLSA claim.

IV. Michelle Huckaby

A. Factual Background

Michelle Huckaby was hired by CW to work at the Alpha Road Facility on October 17, 1997. CW M. Huckaby App. at 62. Michelle Huckaby was hired for the second shift as an operator. Id. at 65. In 1998, Michelle Huckaby was promoted to lead operator. Id. Michelle Huckaby was subsequently employed by ISI when ISI took over operational control of the Alpha Road Facility. Id. Michelle Huckaby was terminated from her employment with ISI on March 29, 2000. Id. at 62. She filed a Charge of Discrimination with the EEOC on August 11, 2000. Id. at 102-03. On the Charge of Discrimination, Michelle Huckaby stated that the discrimination occurred between March 23, 2000 and March 29, 2000. Id.

B. Section 1981 Claims

Before reaching Plaintiff's specific claims, the Court notes that CW makes the same statute of limitations argument that it made in its motion for summary judgment as to the claims of William Friend. That analysis is similarly applicable here, and the Court notes at the outset than claims based upon events that occurred before February 6, 1999 are barred by the statute of limitations. Similarly, the Court will examine only CW's liability for the period between February 6, 1999 and July 31, 1999, and ISI's liability thereafter.

1. Failure to Promote and Failure to Transfer

Michelle Huckaby claims that she was racially discriminated against by CW and ISI's failure to piomote her. In the Complaint, Huckaby alleges that she was, for "two or three years. denied a promotion to Supervisor." Compl. ¶ 21. Specifically, in her deposition testimony, Huckaby alleges that "Maria" was transferred to a supervisor position on the first shift after Huckaby had requested a transfer to the first shift. CW M. Huckaby App. at 66.

The Court considers only Huckaby's claim that she was discriminated against when Maria was transferred to the first shift. Huckaby's other allegations fail to make out aprimafacie ease of discrimination. This is because Huckaby fails to provide evidence that there was a job vacancy available. Baltazor v. Holmes, 162 F.3d 368, 374 (5th Cir. 1998) ("No employer can discriminate for failing to fill a position exists unless the employer eliminated the position as a means of discrimination"); see also Mills v. Int'l Brotherhood of Teamsters, 634 F.2d 282, 285 (5th Cir. 1981) (position must be available).

Defendants also argue that Huckaby's claim fails because the promotion went to a Hispanic woman, that is, another member of the protected class. Plaintiff cites to a Tenth Circuit decision, Perry v. Woodward, to support its claim that the Court not need consider the status of the employee who received the promotion instead of Plaintiff. 199 F.3d 1126 (10th Cir. 1999). However, in Ward v. Bechtel, the Fifth Circuit specifically referred in the fourth prong of the prima facie case as being fulfilled when a minority employee is replaced by a similarly qualified "white" employee. 102 F.3d 199, 202 (5th Cir. 1997). More recently, the Fifth Circuit has rejected the position articulated by the Tenth Circuit in Perry and found instead that replacement by a member of the protected group was material to the issue of whether there was discriminatory intent in the initial discharge. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426-27 (5th Cir. 2000).

Regardless, Huckaby has not shown that she was "similarly situated" or qualified for the job of supervisor. First, Huckaby was never promoted to the job of Lead Operator, the precursor to a promotion to supervisor. Second, it was Plaintiff Friend who was responsible for recommending raises and promotions and Friend did not recommend Huckaby's promotion. CW M. Huckaby App. at 127-28.

Plaintiff Huckaby also asserts that two Hispanic employees, Carlos Galvan and Maria Macias, earned more money than she did and were promoted over her. Defendant CW has demonstrated that Huckaby earned more than both Galvan and Macias until Macias's promotion to Supervisor in March of 1999 and Galvan's promotion later that month. CW M. Huckaby Mot. at 11. Huckaby also claims that there was racial discrimination in the failure to transfer her to the first shift. Such a claim cannot be the basis for aprimefacie case of discrimination because the failure to transfer does not rise to the level of an adverse employment action. Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999).

Thereafter, Huckaby was terminated by ISI at the same time Ebert and Friend were terminated The Court has already examined ISI's reasons for terminating Friend and Huckaby and finds that ISI had a valid, non-discriminatory reason for terminating her employment and Huckaby has not provided any evidence of pretext.

Accordingly, the Court GRANTS CW and ISI's motion for summary judgment as to Michelle Huckaby's claims for discrimination in failure to transfer and failure to promote.

2. Racial Harassment

Huckaby also claims that she was subjected to racial harassment at the Alpha Road Facility. She claims that on one occasion, co-worker Galvan slapped her hand and pushed her away from a mail sorting machine. CW M. Huckaby App. at 87. At that time, Huckaby claims Galvan used profanity. id. at 88. On another occasion, Huckaby claims that Macias would yell at her. Id. at 94. Huckaby has not demonstrated that any of the remarks or incidents were racially motivated. Further, these remarks were isolated and do not rise to the level required for a finding of racial harassment under Fifth Circuit law. Accordingly, the Court GRANTS CW and ISI's motions for summary judgment as to Michelle Huckaby's claims of racial harassment.

3. Retaliation

Michelle Huckaby's claim for retaliation in violation of section 1981, like Friend's claim, is premised upon the argument that she was fired for complaining about racial discrimination in the March 28, 2000 meeting. As discussed above, the Court has concluded that ISI's termination of Friend and Michelle Huckaby was made for non-discriminatory reasons and not as retaliation. Therefore, the Court GRANTS ISI's motion for summary-judgment as to Michelle Huckaby's claim of retaliation.

C. Sex Discrimination Claim

Michelle Huckaby's sex discrimination claim is based upon the fact that CW hired Friend as a supervisor but hired Huckaby as an operator. She claims that she had more experience from her prior job. Regardless of the merits of Huckaby's claim, the Court cannot consider it because it is barred becuase the statute of limitations, both Huckaby and Friend were hired in 1997. Therefore, the Court GRANTS CW's motion for summary judgment as to Michelle Huckaby's claim of sex discrimination.

D. FESA Claim

Finally, Huckaby alleges that she was not always paid overtime she was due. CW M. Huckaby App. at 73. "[T]he applicable standard of proof will be that enunciated by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192, 90 LEd. 1515: `(A)n employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.' 492 F.2d at 710." Marshall v. Partida, 613 F.2d 1360, 1363 (5th Cir. 1980).

Defendant ISI argues that Huckaby failed to provide any proof of uncompensated time, and argues that Plaintiffs should be unable to bring any FLSA claims at this point, because none were able to provide any discovery as to the amount of time and missed compensation they were denied by ISI. See ISI's Mot. at 45, n. 39. Defendants have argued that in order to bring these claims, they must provide a definite amount of compensation due. See Fight v. Armour and Co., 533 F. Supp. 998 (W.D. Ark. 1982). The Court finds that Huckaby has not met this burden and accordingly GRANTS CW and ISI's motions for summary judgment as to Michelle Huckaby's FLSA claim.

V. Ethel Carter

A. Factual Background

Ethel Carter began her employment with CW on December 30, 1997. CW Carter App. at 7-13. Carter was hired as an operator for the second shift. Id. Carter became an employee of ISI on August 1, 1999. Id. at 123. Carter was terminated by ISI on April 28, 2000. Id. at 57. Carter filed a Charge of Discrimination with the EEOC on August 11, 2000. Id. at 90.

B. Section 1981 Claims

1. Failure to Transfer

Carter complains of racial discrimination because she was never transferred to the first shift and because a Hispanic employee, Darlene Torres, worked on the first shift and made more money even though Carter was more qualified. As noted above, the failure to transfer by itself is not an adverse employment decision that can create liability pursuant to section 1981.

Moreover, in her deposition testimony, Carter admits that she was twice asked whether she wanted to transfer to the first shift, and declined the transfer both times. CW Carter App. at 66-67; ISI App., Ex. 32. See also ISI App., Ex. 35 ("In the past, Ethel has constantly expressed a desire to transfer to the daytime shift, yet going out of my way to accommodate her by asking daytime employees to transfer to the nighttime shift and create an opening during the day for Ethel, she declined my offer to her to transfer.") (Memo from Pat Thompson to Rob Williams, April 17, 2000). The Court finds that Carter has failed to allege a prima facie case of discrimination and GRANTS CW and ISI's motions for summary judgment on Ethel Carter's claim of racial discrimination based upon failure to transfer.

2. Racial Harassment

Carter also claims that Macias was verbally abusive to her and that she should learn to speak Spanish. Compl. ¶ 24. The Court rejects Carter's claim. A sole incident of verbal harassment does not rise to level necessary to be actionable under section 1981. Therefore, the Court GRANTS ISI's motion for summary judgment on Carter's claim of racial harassment.

3. Termination

Carter also complains that her termination by ISI was racially discriminatory. Carter was terminated from her employment on April 28, 2000. Carter never demonstrates that she was replaced after she was terminated. Further, Defendant ISI points to several internal memoranda which document Carter's difficulties with her job, including poor job knowledge, poor leadership, poor decision-making, unprofessional and disruptive bchavior towards other employees, refusal to work mandatory overtime, and unexcused absenteeism. ISI App., Exs. 3 5-36, 3 9-42.

Carter claims that she never saw these documents and testified that "it's a lie — a bunch of lies, like they was building up something all the time to get rid of me." Pls.' App. at 181F. However, her testimony alone does not present evidence of pretext. The Court finds that ISI has demonstrated a non-discriminatory reason for terminating Carter's employment. Accordingly, the Court GRANTS ISI's motion for summary judgment as to Ethel Carter's claim for termination.

4. Retaliation

Carter claims that she was terminated in retaliation for her attendance at the March 28, 2000 meeting. However, the Court finds that there is no causal connection between her attendance and her termination. As discussed above, ISI had several legitimate reasons for terminating Carter's employment. Because Carter cannot show that there was a causal connection, the Court GRANTS ISI's motion for summary judgment on Carter's retaliation claim.

C. FLSA Claim

Finally, Carter claims that she was denied pay for overtime. She stated in her deposition, and in her response to ISI's motion that she was owed overtime for several paychecks between August 1999 and March of 2000. Pls.' App. at 181G-I8lBB; Carter's Resp. at 24. Carter's representation of overtime she was not paid is inaccurate. The numbers cited by Carter include hours of overtime that she testified that she was paid for. For example, for the first check, where Carter claims she is owed 26 hours of overtime, she testified that she was paid for 11.84 hours of overtime in her paycheck. Pls.' App. at 1811. Therefore, at most, Carter would be eligible for 14.16 hours. However, the Court finds that Plaintiff did not understand how overtime pay was calculated and the difference between bi-weekly and bi-monthly pay periods. For example, for the first pay period she complains of, August 15-31, 1999, the pay period covered sixteen days, or more than two work-weeks. Therefore, Carter's complaint that she was entitled to 80 hours of regular time, and overtime for the remainder is inaccurate. Because the pay periods were bi-monthly, Carter would have not have been eligible for overtime for all of the hours worked over eighty. The Court finds that Carter's deposition testimony shows her misunderstanding and finds that ISI has adequately explained its method of calculating overtime pay. Therefore, the Court GRANTS CW and ISI's motions as to Ethel Carter's FLSA claim.

VI. Paul Samples

A. Factual Background

Paul Samples was employed by CW at the Alpha Road Facility on December 24, 1998. CW Samples App. at 31. Samples was hired for the second shift as a strapper. Id. at 33. Samples became an ISI employee on August 1, 1999 when ISI took over control of the Alpha Road Facility. Id. at 31. ISI terminated Samples's employment on April 28, 2000. Id.

B. Section 1981 Claims

1. Failure to Promote

In the Amended Complaint, Samples alleges that while on vacation in March 2000, he was replaced by Hispanic Mariano Martinez and demoted back to operator. Compl. ¶ 25. Samples testified in his deposition, though, that when he returned from vacation, he was actually promoted to the operator position, that it was a good thing for him, and that he received a pay raise shortly after his job change. CW Samples App. at 35-36. The Court therefore finds that there was no adverse employment action and accordingly GRANTS ISI's motion for summary judgment as to Paul Samplc's claim for failure to promote.

2. Failure to Transfer

As discussed above, failure to transfer is not considered an adverse employment action. Further, Samples does not allege that he was denied a request for transfer or that he even asked for such a transfer. The Court therefore GRANTS summary judgment for ISI and CW for any claim based upon failure to transfer as to Paul Samples.

3. Termination

Paul Samples alleges that his termination was motivated by racial discrimination. Samples was terminated on April 28, 2000, the same day that Ethel Carter was terminated. Samples's claim fails. First. even if Samples has alleged aprimafacie case of discrimination, Samples has failed to rebut ISI's non-discriminatory, legitimate reason for his termination.

ISI provides documentary evidence showing that Samples was put on probation on April 19, 2000 because he had left work without permission and failed to provide any medical documentation of illness. ISI App. Ex. 37. Samples then failed to appear for work the next day. ISI App. Ex. 40. ISI explained to Samples that he was tenninated for poor work performance and nonattendance. ISI App. Ex. 49. The Court finds that ISI has provided a non-discriminatory explanation for terminating Samples's employment and Plaintiff has failed to provide any evidence of any pretext on the part of ISI. Therefore, the Court GRANTS ISI's motion for summary judgment on Samples's claim for termination.

4. Retaliation

Plaintiff Samples admitted in deposition testimony that he had no claim for retaliation against either Defendant. CW Samples App. at 32. Therefore, the Court GRANTS CW and ISI's motion for summary judgment as to any retaliation claim as to Paul Samples.

C. FLSA Claim

Plaintiffs FLSA claim fails because he cannot provide any evidence of wages not paid, nor provide an amount or time period where such wages were withheld. In his deposition, Samples failed to show any pay period where he could demonstrate that ISI had withheld overtime wages. Accordingly, his claim fails. The Court GRANTS CW and ISI's motions for summary judgment on Paul Sample's FLSA claim.

VII. Cherry Pope

Cherry Pope was employed by CW on January 1, 1998. CW Pope App. at 7-12. Pope was hired as a sweeper on the second shift. Id. at 47. Pope became an employee of ISI on August 1, 1999, when ISI took over operation of the Alpha Road Facility. Id. at 87-96. Pope's employment was terminated with ISI on May 12, 2000. Id. at 45. She filed a Charge of Discrimination with the EEOC on August 11, 2000. Id. at 60-61.

A. Section 1981 Claims

1. Failure to Transfer

Pope alleges that she requested a transfer to the first shift in February of 2000, but her request was denied. As discussed above, failure to transfer does not rise to the level of an adverse employment action that is actionable under section 1981. Accordingly, the Court GRANTS ISI's motion for summary judgment as to Pope's failure to transfer claim.

2. Failure to Promote

Pope argues that she was discriminated against by ISI's promotion of Darlene Torres before her. The Court rejects this claim as well. First, Pope received a promotion to senior-sweeper/operator-in-training as well. CW Pope App. at 15-16. Pope's promotion occurred approximately one month after Torres's promotion. Further, Defendant has provided evidence that Torres's reviews were superior to Pope's. CW Pope App. at 12-28. For these reasons, the Court concludes that Pope cannot bring a claim based upon the failure to promote. The Court GRANTS ISI's motion for summary judgment as to Pope's failure to promote claim.

3. Racial Harassment

Pope also complains that Mariano Martimez would make remarks about how she needed to learn to speak Spanish and how the Spanish are a superior race. Although Plaintiff stated that he made these comments more than once, she could not testify to the number of times Martinez made remarks. Id. at 52-53. Pope's plain allegation that Martinez made these remarks does not rise to the level of racial harassment actionable under section 1981. Plaintiff has not shown that these remarks were more than stray remarks, or that they affected a term or condition of her employment. For these reasons, the Court GRANTS CW and ISI's motion for summary judgment as to Pope's racial harassment claim.

4. Termination

Plaintiff Pope alleges that her termination from ISI was discriminatory and that AfricanAmerican employees were fired while Hispanic employees were retained by ISI. ISI told Pope that she was being laid off due to the decrease in mail volume. ISI App., Ex. 62. While three black employees were laid off, the entire night shift except for Jane Jones, a black employee who was transferred to the day shift, was terminated at the same time. ISI App. Ex. 90, ¶ C1-C2.

The Court finds that ISI has presented a legitimate, non-discriminatory reason for the termination of Pope's employment. Further, Pope fails to show any evidence of pretext. Because Pope's termination was legitimate, the Court GRANTS ISI's motion for summary judgment as to Pope's claim for termination.

5. Retaliation

Finally, Pope claims that ISI retaliated against her for her complaint of racial discrimination in the March 28, 2000 meeting. Pope also claims that after the meeting, a quota was imposed on the second shift. The Court finds that Pope has provided no evidence that a quota was imposed, and even if it was, it is not the sort of ultimate employment decision that rises to the level of an "adverse employment decision" that would be actionable under section 1981.

Further, although Pope was terminated from ISI, the Court finds that there is absolutely no evidence that this was in any way retaliatory for Pope's complaint of discrimination at the March 28, 2000 meeting. Rather, the Court has found that ISI had a legitimate, non-discriminatory reason for terminating Pope's employment, its financial inability to continue the second shift. Therefore, the Court (IRANTS ISI's motion for summary judgment as to Pope's retaliation claims.

B. FLSA Claim

Findlly, Pope claims that she was denied certain overtime payments. Pope has provided no evidence of the pay periods in which she was paid incorrectly or the amount of overtime that she believes she is owed. As discussed above, Pope's failure to provide any evidence undermines her FLSA claim. Therefore, the Court GRANTS CW and ISI's motions for summary judgment as to Pope's FLSA claim.

VIII. Dian Roland

A. Factual Background

Dian Roland began her employment at ISI in September 9, 1999. CW Roland App. at 25. Unlike mosi of the other Plaintiffs, Roland was never employed by CW. Roland was hired for the second shift as a sweeper. Id. at 39. Roland resigned on November 28, 1999. id. at 25. Roland was rehired by ISI on April 3, 2000, but laid off on May 12, 2000. Id. Roland filed a Charge of Discrimination with the EEOC on August 11, 2000. Id. at 31-32. Because Roland was only employed after August 1, 1999, the Court hereby GRANTS CW's motion for summary judgment as to Roland in its entirety.

B. Section 1981 Claims

1. Failure to Transfer

Roland claims that ISI discriminated against her because another Hispanic employee, Vanessa Altimirano, was transferred to the first shift and earned more money than she did. However, Altimirano had been employed longer than Roland had, and had been employed continuously by ISI. CW Roland App. at 7-11. Roland herself admitted that Altimirano had worked at ISI for several more months than Roland had. Id. at 39.

Plaintiff has produced no evidence to rebut this non-discriminatory reason for transferring Altimirano, that is, Plaintiff has provided no evidence of pretext. Further, the mere fact that ISI did not transfer her to the first shift does not rise to the level of an adverse employment action that would trigger liability under section 1981. Therefore, the Court GRANTS ISI's motion for summary judgment as to Roland's claims for failure to promote and failure to transfer.

2. Conditions of Employment

Plai ntiff also alleges generally that the African-American employees on the second shift had more work to do and experienced pay discrimination. As noted above, her comparison to Altimirano fails. Plaintiff provides no additional evidence of these claims. Therefore, the Court GRANTS ISI's motion for summary judgment on this claim.

3. Racial Harassment

Plaintiff alleges that she was subject to racial harassment at ISI. Plaintiff alleges that Martinez made remarks about speaking Spanish and the superiority of the Spanish race, that an unnamed employee said, "that black bitch can't tell me nothing," and that she witnessed an altercation between Chris Davis and Gloria Colas. These comments do not rise to the level of severe or pervasive harassment that merits liability. Further, there is no evidence that Plaintiff was harassed by a supervisor and that these comments had any effect or relation on a term or condition of her employment. Accordingly, the Court GRANTS ISI's motion for summary judgment on Roland's racial harassment claim.

4. Retaliation

Finally, Roland alleges that she was retaliated against because she engaged in protected activity. However, her own deposition testimony rebuts this allegation. Roland testifies that she never complained to anyone at ISI about race discrimination and that she did not attend the March 28, 2000 meeting. ISI App., Ex. 86, p. 36-37. Because Roland engaged in no protected activity, there can he no retaliation claim. Therefore, the Court GRANTS ISI's motion for summary judgment as to Roland's retaliation claim.

5. Termination

Roland was terminated from ISI on May 12, 2000. Roland's termination was part of ISI's decision to eliminate the second shift for financial reasons. ISI App., Ex. 90, ¶ C1 -C2. As discussed above, the Court finds that these lay-offs were legitimate and non-discriminatory. Hispanic employees were terminated at the same time. For these reasons, the Court GRANTS ISI's motion for summary judgment as to Roland's termination claim.

C. FLSA Claim

Roland also states that she was denied certain overtime payments. However, Plaintiff has provided no proof that she was denied overtime. Plaintiff seems to base her claim on the fact that for certain paychecks, she received more than 80 hours of regular time. CW Roland App. at 30. However, as discussed above, ISI paid its employees bi-monthly and this fact alone does not prove that Roland is entitled to any back overtime pay. The Court finds that ISI's motion for summary judgment on Roland's FLSA claim should be GRANTED.

IX. Gloria Colas

A. Factual Background

Gloria Colas was employed by CW at the Alpha Road Facility beginning on October 2, 1998. CXV Colas App. at 45. She was hired for the second shift as a sweeper. Id. Colas became an employee of ISI on August 1, 1999 when IS! took over control of the Alpha Road Facility. Id. at 105-114. Colas was terminated by IS! on May 12, 2000. Id. at 45. Colas filed a Charge of Discrimination with the EEOC on August 11, 2000. Id. at 57-58.

B. Section 1981 Claims

1. Failure to Transfer

Colas argues that ISI discriminated against her when an Hispanic employee, Vanessa Altimirano, was transferred to the first shift after Colas had requested the transfer. The Court notes that Altimirano's transfer was just a transfer and not a promotion. Altimirano continued to work as a sweeper on the first shift. Such a failure to transfer does not rise to the level of an adverse employment action that triggers section 1981 liability. Further, although Colas claims that she was more qualified, her evidence is limited to her own deposition testimony. There is no evidence that Colas had more experience or was better qualified than Altimirano. More importantly, Colas never requested a transfer from her own supervisor; instead she asked the day shift supervisor. Id. at 54-55. Accordingly, the Court GRANTS ISI's motion for summary judgment as to Colas's claim for failure to transfer.

2. Racial Harassment

Colas also claims that she heard Mario Martinez make remarks about the superiority of Hispanics. As discussed above, the Court finds that these remarks did not create a hostile environment that is actionable under section 1981. The Court GRANTS CW and ISI's motions for summary judgment as to Colas's claims for racial harassment.

3. Termination

Colas claims that her termination from her employment with ISI was motivated by racial discrimination. Colas was terminated on May 12, 2000, along with Cherry Pope and Dian Roland, and several Hispanic employees. Colas, as Pope and Roland argued, claims that ISI was out to eliminate the largely African-American second shift. As discussed above, the Court finds that ISI had a legitimate and non-discriminatory reason for eliminating the second shift, and that ISI terminated both African-American and Hispanic employees. Although Colas claims that she heard Carlos Galvan remark that he was trying to fire all of the Blacks if he got a chance, this evidence is not competent summary judgment evidence, and does not provide evidence of pretext. Id. at 50-51. Although African-American employees were terminated, so were Hispanic employees, and a financial reason for shutting down the second shift has been shown.

Colas also argues that she was replaced by two Hispanic employees, Ezequiel Rodriguez and L.U. Rodriguez. Rob Williams, who worked as a General Manager for ISI, documents that the entire second shift was eliminated in May 2000 except for one employee. ISI App., Ex. 90. Neither Ezequiel nor L.U. Rodriguez is listed as an employee who was employed on the second shift at that time. Id. Further, Colas has no evidence beyond her own speculation about her replacement. As noted above, the Court finds that the entire second shift was laid off for legitimate reasons. There is no documentary evidence, or any evidence beyond Colas's bare assertion, that she was replaced by these workers. In fact, there is no record of an L.U. Rodriguez ever being employed at the Alpha Road Facility.

Therefore, the Court GRANTS ISI's motion for summary judgment on Colas's claim for termination.

4. Retaliation

Colas claims that she was retaliated against for complaining of racial discrimination when she was laid off. As discussed above, there is a legitimate reason for the lay offs that ISI undertook in May 2000. There is absolutely no evidence to establish any link between complaints of racial discriminahon and the May lay-offs. In fact, several Hispanic employees who do not appearto have attended the March 28, 2000 meeting were also laid off when the second shift was eliminated. Accordingly, the Court GRANTS ISI's motion for summary judgment as to Colas's retaliation claim.

C. FLSA Ciaim

Finally, Colas alleges that she is due certain payments for overtime. ISI App., Ex. 78, at 118-19, Like some of the other Plaintiffs, Colas's argument is premised upon her belief that she was owed overtime for any hours over 80 in a given pay period. The Court has rejected this argument above and accordingly, GRANTS summary judgment to ISI on Colas's FLSA claim.

X. Deborah Beasley

A. Factual Background

Deborah Beasley began her employment with CW at the Alpha Road Facility on December 21, 1997. CW Beasley App. at 7-9. She was hired as an operator working on the second shift Id. at 36. l3easley became an employee of ISI when ISI took operational control of the Facility on August 1, 1999. Beasley resigned from ISI on November 18, 1999. Id. at 34. On August 11, 2000, she filed a Charge of Discrimination with the EEOC. Id. at 59.

B. Section 1981 Claims

1. Failure to Promote and Failure to Transfer

Beasley's main claim is that a Hispanic employee, Darlene Torres, was promoted before her and made a higher wage than Beasley. Beasley has provided no summary judgment evidence beyond her own testimony to support this claim. In her deposition, Beasley complained that she had trained Toi-rcs but that Torres had been promoted before she was. CW Beasley App. at 39. However, there is no additional evidence to support this claim. Defendants have provided evidence that shows that Beasley is factually mistaken. Beasley was promoted from operator to lead operator on February 18, 1998. Id. at 8-9. Torres, according to ISI records, was promoted several months later, on December 12, 1998. Id. at 16. Further Defendants have demonstrated with personnel records that Beasley made a higher wage than Torres until May 1999, and Defendants compare Beasley's average performance reviews with Torres "s exceptional reviews. Id. at 10-11, 17-18, 75. Therefore, the Court fThds that Plaintiff has failed to establish aprimafacie case of discrimination. Further, as noted above, failure to transfer is not an adverse employment action that is actionable. For these reasons, the Court GRANTS CW and ISI's motions for summary judgment on Beasley's claims for failure to promote and failure to transfer.

2. Racial Harassment

Beasley also complains of a single comment made by co-worker Fernando Martinez to support her claim for racial harassment. Id. at 37. Martinez allegedly said to Beasley, "Don't no nigger tell me what to do." Id. at 37-38. While Martinez's comment is surely offensive, Beasley does not provide any evidence of any other statements or actions that created a hostile work environment. As noted above, the Fifth Circuit has held that a stray or isolated remark is not sufficient to make out a claim for racial harassment. Accordingly, the Court GRANTS ISI's motion for summary judgment on Beasley's claim of racial harassment.

3. Constructive Discharge

Beasley also claims that she was constructively discharged from her job in violation of section 1981. Beasley resigned from her employment with ISI on November 18, 1999. "To prove a constructwe discharge, a plaintiff must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign. . . . Constructive discharge requires a greater degree of harassment than that required by a hostile environment claim. Discrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge, as is a discriminatory failure to promote." Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (internal quotations and citations omitted).

In determining whether a plaintiff would feel compelled to resign, the Fifth Circuit looks at several factors: demotion, reduction in salary, reduction in job responsibilities, reassignment to menial or degrading work, reassignment to work under a younger supervisor, badgering, harassment or humihation by the employer calculated to encourage the employee's resignation, or offers of early retirement or continued employment on terms less favorable than the employee's former status. Id.

Plaintiff has failed to establish that her working conditions were so intolerable as to be considered a constructive discharge. Plaintiff has no evidence of any of the factors considered by the Brown court. She complains of Torres's transfer and Martinez's remarks, but provides no additional evidence that would provide proof that she was constructively discharged. The Court has found no discrimination or harassment in this case; there is no additional evidence that would merit a finding of constructive discharge. Accordingly, the Court GRANTS ISI's motion for summary judgment as to Beasley's claim of constructive discharge.

4. Retaliation

Plaintiff alleges that she was retaliated against for engaging in protected activity. Id. at 34. However, it is unclear what the protected activity she claims she engaged in. Further, the Court has found that she voluntarily resigned herjob and that she was not constructively terminated. Beasley alleges that she reapplied for ajob at ISI and that two Hispanic persons were hired instead of her. However, she cannot provide any evidence to support this allegation. She does not know the names or qualifications of those hired after her reapplication. For these reasons, the Court GRANTS ISI's motion for summary judgment on Beasley's retaliation claim.

C. FLSA Claim

Finally, Beasley complains that she was denied overtime, both by miscalculated pay checks and in cash she should have received for certain overtime wages. Id. at 35, 42. However, Beasley's pay check claim appears premised on the false notion that she was eligible for overtime for any hours over SO hours per pay period. As for her cash claim, she noted in her deposition that she had no records of any cash shortage because whenever she received cash, she checked to ensure that she was always paid sufficiently. Id. at 42. Accordingly, the Court GRANTS CW and ISI's motions for summary judgment as to Beasley's FLSA claims.

XI. Jane Jones

A. Factual Background

Jane Jones began working at CW's Alpha Road Facility on June 2, 1998. CW Jones App. at 48. Jones was hired as a sweeper on the second shift. Id. at 50. Jones became an ISI employee when ISI took control of the Alpha Road Facility on August 1, 1999. Jones was the sole second shift employee who was not terminated when the second shift was eliminated in May of 2000. CW resumed control of the Alpha Road Facility on October 13, 2000, and at that time, she became a CW employee again. Id. at 93.

B. Section 1981 Claims

1. Failure to Transfer

Jones alleges that certain unnamed Hispanic employees earned more than she did and were transferred to the first shift. Id. at 75, 82. Although Jones admits that the Hispanic workers on the second shift were treated the same as African-American workers on the second shift, her argument is that the shifts themselves were segregated and the first shift workers received preferable treatment. Id. at 82. However, Jones fail to make out a prima facie case. First, Jones does not provide specific evidence of her request to transfer to the first shift. Regardless, as noted above, the failure to transfer does not rise to the level of actionable discrimination. Further, Jones alleges that first shift workers were treated to a number of amenities that second shift workers did not receive, such as smocks, badges, and turkeys. However, although a number of Plaintiffs make this same allegation, there is no evidence beyond the assertions of Plaintiffs to show this. Even if Plaintiffs could show that first shift workers received amenities the second shift workers did not, this difference would not rise to the level of an "adverse employment action" or ultimate employment action that is actionable under section 1981. Therefore, the Court GRANTS CW and ISI's motions for summary judgment as to Jane Jones's claims for failure to transfer and for discriminatory conditions of employment.

2. Racial Harassment and Constructive Discharge

Jones alleges that several incidents demonstrate she was in a racially hostile environment. First, Jones claims that Carlos Galvan hit her with a mail cart. Id. at 75-76. Jones claims that she complained to her supervisor, William Friend, of this event. Id. Plaintiff alleges that Galvan's actions were racially motivated and occurred sometime in October or November 1999. Id. at 75. Defendants respond that Friend does not recall that Jones complained to him of the incident. Id. at 118.

Jones also complains of an incident that occurred after she was transferred to the day shift. Jones alleges that she and a Hispanic employee, "Mario, `got into an altercation where Mario hit Jones's head with his elbow. Id. at 78. Thereafter, Jones claims that she pushed Mario in response. Id. at 79. Jones also alleges that she told her supervisor of this incident. Id. at 79-80.

Finally, Jones complains that she got into another physical altercation with a Hispanic employee, Maricruz Martinez. According to Jones, she accidently hit Martinez several times, and said "excuse me." Id. at 52. After this, Jones claims that Martinez struck Jones on the leg. Id. At that time, Jones went to her supervisor, Maria Macias. Id. at 87. Thereafter, Jones filed a police report. Id. at 87-88. Later that evening, Jones spoke with the superintendent, Pat Thompson. Id. at 88. Thompson told her to take a few days off while they sorted out the details of the incident. Id.

Thereafter, CW Human Resources employee Sue Mehienbacher investigated the incident. Mehlenbacher interviewed both Jones and Martinez. Id. at 89. Martinez's story to Mehlenbacher was that Jones first hit Martinez several times with a mail tray. Id. at 7-8. Mehlenbacher concluded that there was conflicting stories and neither Martinez nor Jones was cited for the incident. Thereafter, Meblenbacher contacted Jones, told her that she needed to return to the Alpha Road Facility, complete the process of applying with CW (as CW's control of the facility had just resumed), and conclude the process of becoming a CW employee. Id. at 8.

When Jones returned to work, she met with Macias and a verbal dispute with Macias erupted where both women began yelling. Id. at 93. Jones asked Thompson to explain personnel policies to her, and Thompson, rather than describing them verbally, gave Jones a pamphlet. Jd. at 94. Jones returned once more to CW to return the paperwork. Id. After Jones failed to report for five days, and called in only once, CW terminated her employment. Id. at 9.

These incidents do not rise to the level of actionable racial harassment and the Court finds that Jones was not constructively discharged. The incidents with Galvan and Mario were isolated incidents; Jones fails to provide evidence that either lead to continuing problems with other employees. As for the incident with Martinez, Jones reported the problem to management, and Sue Mehlenbacher investigated the allegations, and concluded that it was safe for Jones to return to work. Although Jones contests this conclusion, she never gave CW the opportunity to correct any past problems. Rather than returning to work after the incident, Jones simply chose to stop coming to work. Although she was upset by the incident with Martinez, Jones never gave her employer the chance to rectify the problem. The Court finds that CW tried to take prompt action and solve the problem, but Jones refused to give CW the opportunity to make any changes.

Accordingly, the Court GRANTS summary judgment to CW and ISI for Plaintiffs claims of racial harassment. Because Jones failed to give CW an opportunity to make any changes, the Court concludes that she was not constructively discharged. Therefore, the Court also GRANTS summary judgment on Jones's constructive discharge claim.

3. Retaliation

Plaintiff s retaliation claim is premised upon her constructive discharge claim. Because the Court finds the Plaintiff quit, the Court GRANTS CW's motion for summary judgment on P]aintiff's retaliation claim.

C. FLSA Claim

Finally, Jones alleges that she was denied certain overtime wages. Jones's claim, like several of the other Plaintiffs', is based upon her belief that she is entitled to overtime for any time that exceeded 80 hours in a given pay period. The Court has already rejected this argument, and also finds that Jones has failed to produce any evidence describing the specific periods that she was denied overtime pay and the amount she is due. For these reasons, the Court GRANTS CW and ISI's motions for summary judgment on Jones's FLSA claim.

XII. Corey Huckaby

A. Factual Background

Corey Huckaby began working for ISI on September 13, 1999. CW C. Huckaby App. at 25. He was hired as a sweeper on the second shift. Id. at 27. Huckaby was never employed by CW. Huckaby resigned from his job on April 1, 2000. Id. at 25. Because Huckaby was only employed by ISI, the Court at the outset GRANTS CW's motion for summary judgment as Corey Huckaby's claims in their entirety.

B. Section 1981 Claims

1. Failure to Promote

Primarily, Corey Huckaby complains that a Hispanic employee, Mariano Martinez, was promoted above him and earned more wages than he did. Huckaby does not make a showing that he and Martinez were in any way similarly situated. Although Huckaby alleges that there was general race discrimination at ISI, he points only to Martinez as a comparison. However, Defendants point out that Martinez was employed by ISI and CW at the Alpha Road Facility for approximately two years before Huckaby was hired. Huckaby began work in September of 1999. Martinez began work at CW on December 5, 1997. Id. at 7. Martinez had these intervening months for evaluation and experience. It is little surprise that Martinez held a higher position and made more hourly than did Huckaby. Huckaby has failed to establish a prima fade case of discrimination or rebut Defendant's legitimate reason for treating Martinez differently than Huckaby. Accordingly, the Court GRANTS ISI's motion for summary judgment as to Corey Huckaby's claim for failure to promote.

Huckaby specifically testified that unlike the other Plaintiffs, he was not bringing a claim for any discrimination based upon ISI's failure to transfer him to the first shift. Id. at 33.

2. Racial Harassment

Huckaby also claims that the environment at ISI was hostile to him because of his race. He points to two comments made by a Hispanic co-worker who called Huckaby a "motherfucker" and a "dumb-ass." First, these isolated comments do not constitute a hostile environment; they are stray remarks that do not rise to the level of actionable harassment. Further, Huckaby himself claims that they were not racially motivated. Id. at 37. Finally, there is no evidence that these remarks affected a term or condition of his employment. Therefore, the Court GRANTS ISI's motion for summary judgment as to Huckaby's harassment claim.

3. Constructive Discharge

Huckaby also claims that he was constructively discharged, but his own testimony undermines this claim. Huckaby apparently quit his job on April 1, 2000. He had not shown up for three days prior to April 1, 2000 and ISI filled out termination paperwork. ISI App., Ex. 30. Huckaby claims that he quit because they required him to stay on the sweeper line. CW C. Huckaby App. at 30. Either way, Huckaby does not have a claim. If he was terminated, ISI had a legitimate, non-discriminatory reason for firing him. He was absent three days in a row without any excuse. If he quit, there is absolutely no evidence to show that his working conditions were the sort that create an environment where he was constructively discharged. Accordingly, ISI's motion for summary judgment as to Corey Huckaby's claim for termination or constructive discharge is GRANTED.

4. Retaliation

Corey Huckaby admitted in his deposition that he was not bringing a retaliation claim. CW C. Huckaby App. at 25.

C. FLSA Claim

Huckaby admitted in his deposition that he was bringing no claim for overtime wages pursuant to the FLSA. Id. at 26.

XIII. Larry King

A. Factual Background

Larry King began his employment for CW at the Alpha Road Facility on March 1, 1999. CW L. King App. at 34. King was hired as a strapper on the second shift. Id. King became an ISI employee when ISI took over operational control of the Alpha Road Facility on August 1, 1999. King resigned his employment with ISI in December of 1999. Id. at 71. He filed a Charge of Discrimination with the EEOC on August 11, 2000. Id. at 63.

B. Section 1981 Claims

1. Conditions of Employment

Larry King generally complains that the second shift employees were treated discriminatorily in comparison to the first shift employees. He claims that African-American employees on the second shift made less in wages, worked more hours, and had worse working conditions. However, he fails to make out aprimafacie case because he presents absolutely no evidence beyond his own allegations of these differences. In fact, while being deposed, he admitted that some of his claims were simply assumptions that he had no evidence to support. CW L. King App. at 40. King has provided no evidence of any Hispanic employees who worked fewer hours or made more money than he did. He fails to point to an adverse employment action he experienced. Thus, the Court finds that he has failed to present a prima facie case of discrimination. Further, his claim is undermined by the presence of Hispanic employees on the second shift. For these reasons, the Court GRANTS (CW and ISI's motions for summary judgment on Larry King's claim of discriminatory working conditions.

2. Racial Harassment

Next, King complains that he faced racial harassment at the Alpha Road Facility. specifically, King recalls a Hispanic employee calling him a "nigger." Id. at 39. Offensive as the use of this term may be, King does not point to any additional comments or harassing incidents. A single remark fails to rise to the level of actionable harassment. Further, King has failed to show that this remark was tied in any way to an adverse employment action. Accordingly, the Court GRANTS CW and ISI's motions for summary judgment as to Larry King's harassment claim.

3. Retaliation

King testified in his deposition that he was not bringing a retaliation claim. CW L. King App. at 35.

4. Constructive Discharge

King claims he was constructively discharged and he quit his job because of the discrimination at the Alpha Road Facility. However, whether he quit or was discharged is unclear. William Friend testified that King was terminated for absenteeism. Id. at 92. King himself states that he quit because the work caused him stress and hurt his back. Id. at 47. If he was terminated, ISI had reason to terminate him because he failed to call in or show up for work. If, on the other hand, he quit his job, he has failed to show that he was constructively discharged. King has provided reasons for quitting in his testimony and has failed to show any of the factors the Court considers when determining if an employee was working in an environment that would lead to a constructive discharge. Therefore, the Court GRANTS ISI's motion for summary judgment on Larry King's constructive discharge claim.

C. FLSA Claim

Finally, King claims that he was not paid all the overtime wages he deserved. However, it appears that King's claim is based upon the same misunderstanding of the IS! pay periods and that his claim is based upon not receiving overtime pay when he worked more than 80 hours in a pay period. Id. at 40-41. King provides absolutely no evidence of the periods his pay was miscalculated or the amount of overtime wages he is still owed. The Court, therefore, GRANTS CW and ISI's motions for summary judgment on Larry King's FLSA claim.

XIV. Melody King

A. Factual Background

Melody King began working for CW at the Alpha Road Facility on January 24, 1998. CW M. King App. at 7. She was hired as a sweeper on the second shift. Id. In October of 1998, King left CW for another job. Id. at 7, 23. King was rehired at the Alpha Road Facility by ISI after ISI took over control over the facility. King was rehired as a sweeper. Id. at 21. She resigned in March of 2000. Id. at 21.

B. Section 1981 Claims

1. Failure to Transfer and Conditions of Employment

King alleges that she was generally discriminated against in terms of wages, hours, and work conditions. However, like her uncle, Larry King, Melody King makes allegations with no evidence or support. King points to an unknown Hispanic male and argues that he, "Darlene's boyfriend," made a higher wage than she did. CW M. King App. at 35. However, this allegation does not prove a prima facie case of discrimination. There is no indication of his name, his experience, his job position, or his wage. Similarly, her general allegation that "everyone knew" about disparity between the first and second shift fail for lack of any evidence to prove her claim. In addition, King claims that she was denied a transfer to the first shift, but as noted above, this is not an adverse employment action that is actionable under section 1981. King alleges that she was denied a promised pay raise. However, as Michelle Huckaby testified, these raises generally went along with annual evaluations. id. at 44. However, King did not remain at CW or ISI long enough to receive her annual evaluation. Therefore, the Court finds that neither CW or ISI discriminatorily denied her a pay raise. For these reasons, the Court GRANTS CW and ISI's motion for summary judgment as to Melody King's claims of racial discrimination for failure to promote, failure to transfer, or for general conditions of employment.

2. Racial Harassment

King claims that she was racially harassed by an unnamed Hispanic employee who told her she should learn to speak Spanish. Id. at 28-29. King states that this occurred only one time. A single statement is not enough to rise to the level of actionable harassment. Further, King does not demonstrate that this harassment was in any way affected a term or condition of her employment. Accordingly, the Court GRANTS CW and ISI's motions for summary judgment on Melody King's ractal harassment claim.

3. Retaliation

King claims that she was retaliated against for engaging in protected activity. King does claim that she complained about racial discrimination on the second shift. She claims the failure to raise her pay was retaliatory. However, as noted above, King quit before she could be evaluated for a pay raise. King also argues that she was denied a transfer to the first shift in retaliation for protected activity. However, there is absolutely no evidence of any connection between her failure to earn a raise or transfer and the protected activity. The Court has found that ISI and CW did not discriminate against King for either the failure to transfer or the failure to raise her pay. Therefore, the Court GRANTS CW and ISI's motions for summary judgment as to Melody King's retaliation claim.

4. Constructive Discharge

Finally, King claims that she was constructively discharged. King left her employment at the Alpha Road Facility twice. The first time, in October 1998, King testified that she left for a better job. Id. at 25. However, King also alleges that her resignation was "retaliatory" for failure to gain a pay raise. The Court finds that even if King was discriminatorily denied a pay raise, the Fifth Circuit has found that discrimination alone is not sufficient to find constructive discharge. King has not shown any of the additional factors that would lead this Court to find that she had been constructively discharged.

King resigned from ISI in March of 2000. King claims again that she was constructively discharged because of ISI's failure to transfer her to the first shift. The Court rejects this claim as well. King has provided no evidence beyond her bare allegations of discrimination to support her constructive discharge claim. The Court finds that King quit her employment both times and therefore GRANTS CW and ISI's motions for summary judgment on Melody King's claim of constructive discharge.

C. FLSA Claim

King also claims that she was denied certain overtime wages she was owed. However, King admits that although she thinks that the overtime was not accurate, she has absolutely no evidence to show the periods of her alleged underpayment or any way to show how much she was owed. Id. at 27. Because Plaintiff has failed to provide any evidence or amount of overtime wages she is owed by CW or ISI, the Court GRANTS both motions for summary judgment on Melody King's FLSA claim.

Conclusion

For the foregoing reasons, the Court GRANTS Defendant CW's Motions for Summary Judgment as to William Friend, Michelle Huckaby, Ethel Carter, Gloria Colas, Cherry Pope, Paul Samples, Dian Roland, Deborah Beasley, Larry King, Melody King, Corey Huckaby, and Jane Jones, and GRANTS Defendant ISI's Motion for Summary Judgment.