Opinion
No. SA-04-CV-0507-RF.
October 24, 2006
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendant's Motion for Summary Judgment (Docket No. 13), filed August 25, 2006; Plaintiff's Response (Docket No. 15), filed September 15, 2006; and Defendant's Reply to Plaintiff's Response (Docket No. 17), filed September 26, 2006. The parties appeared before the Court for a hearing on this matter on October 19, 2006. After due consideration, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED in part and DENIED in part.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed suit in this Court on June 10, 2004, alleging Defendant had engaged in unlawful employment practices in its employment and subsequent termination of Plaintiff. Although the parties participated in settlement negotiations as early as July, 2005, the parties were unable to reach an agreement and have continued the case in this Court. The discovery and dispositive motions deadlines passed on July 28, 2006, and August 25, 2006, respectively. After adequate discovery but before the passing of the dispositive motions deadline, Defendant filed this motion for summary judgment.
Pl.'s First Am. Original Compl. (Docket No. 2).
Joint Report on Alternative Dispute Resolution (Docket No. 6).
Revised Agreed Scheduling Order (Docket No. 11).
The case at bar is a result of many prior confrontations between Plaintiff and Defendant. Defendant employed Plaintiff for six years during which Plaintiff filled at least four different employment positions with Defendant. Defendant asserts that this frequent change of position resulted from a combination of Plaintiff's inability to relate well with his coworkers and Defendant's desire to place Plaintiff in a position in which he could succeed. While Plaintiff admits that he failed in some of his job responsibilities at one position, he contends that Defendant's decision to transfer Plaintiff was based on discriminatory motives. Based on these beliefs, Plaintiff sought the assistance of the Equal Employment Opportunity Commission ("EEOC").
Plaintiff worked as service support staff to waiters, clerk in the Winners Circle, clerk in the Deposits Department, and game technician in the Amusement Department. Def.'s Mot. for Summ. J. (Docket No. 13).
Id.
Pl.'s Resp. to Def.'s Mot. for Summ. J. (Docket No. 15, Ex. 3, Record of Discussion; Ex. 12, EEOC Charge).
During the course of his employment with Defendant, Plaintiff filed two Charges of Discrimination with the EEOC. In October of 2001, Plaintiff filed his first Charge of Discrimination with the EEOC against Defendant based on alleged discrimination under
Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act ("ADA"). This original charge was dismissed after the EEOC was unable to determine that Defendant had violated either Title VII or the ADA. Accordingly, although knowledge of Plaintiff's first EEOC complaint is relevant, the basis of the current lawsuit consists only of Plaintiff's second EEOC complaint. In fact, the parties agree that Plaintiff's ADA claim from his original EEOC complaint is no longer an issue.
Id. at Ex. 12, EEOC Charge. On February 23, 2002, Plaintiff amended his original EEOC complaint to include an allegation of reverse discrimination resulting in transfer to another department in Defendant's San Antonio location. Def.'s Mot. for Summ. J. (Docket No. 13, Ex. B, Gordon Depo.).
Def.'s Mot. for Summ. J. (Docket No. 13, Ex. A6, Dismissal and Notice of Rights).
Following the original EEOC complaint, approximately two years passed in which Plaintiff was written up only once. In June of 2002, a manager wrote up Plaintiff for being "insubordinate" and having a "verbal outburst." Plaintiff continued in his employment with Defendant without incident until April of 2003. In April of 2003, Plaintiff expressed an interest in the position of Department Head for the Tech staff to a manager named Paul Owens. In a letter to Mr. Owens, Plaintiff noted that he may be unqualified for the position and needed additional training. In July of 2003, Defendant filled the Department Head for the Tech staff with an individual other than Plaintiff.
Id. at Ex. B23, Employee Consultation Report.
Id. at Ex. B27, Plaintiff's Request for Promotion.
Id. ("I do realize that I lack some of the requirements for this position. . . . However, I am always willing to overcome my lack of requirements by learning and bettering my knowledge.").
Id. at Ex. B26, Internal Complaint.
Just after Defendant filled this position, Plaintiff filed an internal complaint against Mr. Owens. Plaintiff's internal complaint, filed with Defendant's human resources department on July 29, 2003, asserted that Mr. Owens had made lewd comments regarding Plaintiff's wife. While the record does not clearly indicate the outcome of this internal complaint, it appears that Defendant responded by discussing other internal opportunities with Plaintiff. As part of this discussion on August 11, 2003, Defendant's employees Jeff Ford and Bill Hicks, both assistant general managers, assured Plaintiff that he "[brought] a lot of talent to San Antonio in many areas" and offered him training for the Senior Game Technician position, a position in which Plaintiff had apparently expressed some interest. Following this discussion, Plaintiff received one-on-one training to learn new aspects of the senior game tech position.
Id. at Ex. B27, Plaintiff's Request for Promotion.
Def.'s Mot. for Summ. J. (Docket No. 13, Ex. B26, Internal Complaint).
Id. at Ex. B28, Record of Discussion ("You have expressed an interest to train for the Sr. Game Tech position.").
Id. at Ex. B, Gordon Depo.
Two months after this discussion and offer of training, on October 28, 2003, Plaintiff filed his second Charge of Discrimination with the EEOC against Defendant alleging retaliation based on denial of training. In this second Charge of Discrimination, Plaintiff asserted that Defendant had refused Plaintiff training since as early as March 1, 2003 in retaliation for Plaintiff's original EEOC complaint filed almost two years earlier. Plaintiff further alleged that the lack of training resulted in ineligibility for a promotion to a management position in August 2003.
Id. at Ex. B29, EEOC Charge.
Id.
Id.
In December of 2003-less than two months after filing his second EEOC complaint-Plaintiff was involved in a verbal confrontation with a supervisor which resulted in Plaintiff's termination. On the morning of December 2, Plaintiff arrived at work and approached the back door where managers were needed to gain access to the building. After Plaintiff waited outside for approximately ten minutes, a manager opened the door for Plaintiff. Plaintiff confronted the three managers on staff at the time, arguing that one of them should have let him in the door earlier and requesting to speak with the general manager on duty. One of the managers on duty requested that Plaintiff continue with his job responsibilities until the general manager arrived. Displeased with this suggestion, Plaintiff approached the manager in an allegedly threatening manner, prompting another manager to step between the two men. At that point, the general manager arrived and suspended Plaintiff pending continued investigation of the incident.
Id. at Ex. B20, Employee Consultation Report.
Def.'s Mot. for Summ. J. (Docket No. 13, Exs. A1-3, Affidavits of Managers).
Id.
Id.
Id.
Id.
Def.'s Mot. for Summ. J. (Docket No. 13, Ex. B30, Employee Consultation Report).
The following day, Defendant chose to terminate Plaintiff, citing Plaintiff's "violent outburst" and lack of dignity and respect for his coworkers as the reasons for the termination. On the same day as his termination, December 3, 2003, Plaintiff amended his second Charge of Discrimination to add his termination as another retaliation complaint. Accordingly, Plaintiff now asserts two distinct retaliation claims within his second EEOC complaint: (1) retaliation for the original 2001 EEOC charge in the form of denial of training, and (2) retaliation for the 2003 EEOC charge in the form of termination.
Id.
Id. at Ex. B31, Amended EEOC Complaint.
In response to these two claims, Defendant filed this motion for summary judgment. Defendant argues that Plaintiff's training retaliation claim fails because Plaintiff cannot prove a prima facie retaliation claim due to lack of both an adverse employment action and causation. Primarily, Defendant contends that Plaintiff did not suffer an adverse employment action because Plaintiff did receive training in August 2003 for a position in which he had shown interest. Further, Defendant asserts that the lapse of two years between the original charge and the alleged retaliation evidences a lack of a causal connection between the two events. Defendant also argues that Plaintiff's termination retaliation claim fails because Defendant had a nondiscriminatory purpose for terminating Plaintiff.
Def.'s Mot. for Summ. J. (Docket No. 13).
Id.
Id.
Plaintiff, on the other hand, argues that he does establish a prima facie case as to both retaliation claims. As to his training retaliation claim, Plaintiff contends that the lack of training coupled with inability to garner a promotion results in an actionable adverse employment action. Further, Plaintiff maintains the validity of his termination retaliation claim on the grounds that Defendant's nondiscriminatory purpose is purely pretextual.
Pl.'s Resp. to Def.'s Mot. for Summ. J. (Docket No. 15).
Id.
STANDARD OF REVIEW
Defendant has moved for summary judgment. Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. A material fact is one that might affect the outcome of the suit under governing law. A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." The moving parties, however, need not negate the elements of the nonmovant's case.Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. "[T]he court must review the record `taken as a whole.'" All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor." The evidence is construed "in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts."
See Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 257; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587).
Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 525 U.S. 1067 (1999).
Anderson, 477 U.S. at 255; Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5 (1990); see Christopher Vill. Ltd. P'ship v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999); Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998).
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999); accord Little, 37 F.3d at 1075 ("[w]e do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.") (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14 (1992) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2nd Cir. 1989)).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48).
See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; Wenner, 123 F.3d at 324.
Celotex Corp., 477 U.S. at 322-23.
DISCUSSION
Plaintiff's retaliation claims require the Court to apply the Fifth Circuit federal burden-shifting scheme for retaliation claims under Title VII. Under this scheme, each plaintiff has the initial burden of establishing a prima facie case of discrimination by retaliation. Establishing a prima facie case of retaliation under Title VII requires proof of three elements: (1) the plaintiff engaged in an activity protected by Title VII; (2) the plaintiff suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. The establishment of a prima facie case creates a rebuttable presumption of discrimination in favor of the plaintiff. Thus, once a plaintiff establishes a prima facie case of discrimination, the burden of shifts to the defendant employer to produce evidence of a legitimate, nondiscriminatory reason for the employment action at issue. The plaintiff then assumes the burden of showing that the reasons given were a pretext for retaliation.Following this burden-shifting scheme, Plaintiff must first establish his prima facie case by providing evidence of the three aforementioned elements: (1) he engaged in an activity protected by Title VII; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. The parties do not dispute that Plaintiff engaged in a Title VII protected activity. Title VII prohibits an employer from discriminating against an employee because he "made a charge, testified, assisted, or participated" in a Title VII proceeding or investigation. Accordingly, the Court agrees that there is no question that Plaintiff's retaliation claims satisfy the first element of the analysis.
Burlington, 126 S. Ct. at 2415; Harvill, 433 F.3d at 434.
42 U.S.C. § 2000e-3(a). The Supreme Court recently held that this prohibition is not limited to retaliatory acts affecting the terms and conditions of employment. Burlington, 126 S. Ct. 2405 at 2412; see also Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) ("[F]iling an administrative complain is clearly protected activity.").
In regard to an adverse employment action, the Court finds that only Plaintiff's termination retaliation claim satisfies the adverse employment action element while his training retaliation claim fails. Adverse employment actions involve ultimate decisions such as hiring, firing, granting leave, promoting, and compensating. The Fifth Circuit has held that an employer's decision refusing training does not constitute an ultimate employment decision. In the case at bar, Plaintiff alleges that, in retaliation for filing his original EEOC complaint, he was not provided desired job training. In accordance with Fifth Circuit rulings, this Court acknowledges that lack of training alone does not amount to an adverse employment action.
Hockman v. Westward Commc'n, 407 F.3d 317, 330 (5th Cir. 2004) (citing Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)); Burlington, 126 S. Ct. at 2415 (noting that personality conflicts, snubbing by supervisors, and other minor annoyances are not actionable).
Hockman, 407 F.3d at 330-31 (citing Dollis, 77 F.3d at 781).
Id.
Plaintiff goes on, however, to argue that the lack of training resulted in Plaintiff's inability to secure a certain management position. In making this argument, Plaintiff attempts to bring his training claim under the umbrella of a promotion issue, thereby creating an adverse employment action. The Court finds, however, that the denial of the specific training Plaintiff wanted constitutes denial of the opportunity for a specific promotion, rather than the actual denial of a promotion. As such, this is not an ultimate employment decision for purposes of Title VII. Accordingly, Plaintiff's claim for retaliation based on lack of training fails as a matter of law. Plaintiff's claim for retaliation based on termination, however, does fulfill the adverse action element. Accordingly, the Court must consider whether Plaintiff's retaliation claim based on his termination satisfies the final element of the prima facie case-causation.
In light of the Court's determination as to adverse employment action, it need not consider Defendant's argument that Plaintiff's training retaliation claims also fails as to causal connection due to lack of temporal proximity. The Court is skeptical, however, of an alleged retaliatory action occurring almost two years after the filing of a discrimination complaint.
To demonstrate causation under a Title VII action, a plaintiff must show that "but for" his protected activity, the adverse employment action would not have taken place. Notably, Defendant does not even contest the causal link between Plaintiff's filing of his second EEOC charge and his subsequent termination. Instead of contesting causation, Defendant essentially concedes the issue and proceeds to the second step of the burden-shifting analysis. That is, upon establishment of a prima face case, the burden shifts to Defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action. Regarding this nonretaliatory reason, Defendant asserts that Plaintiff's outburst and insubordination to his manager resulted in termination rather than some discriminatory reason. In support of this claim, Defendant offers discussion records, employee reports and evaluations, disciplinary documents, affidavits, and depositions. As such, Defendant meets its burden of articulating a nonretaliatory reason for Plaintiff's discharge.
Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
Burdine, 450 U.S. at 254.
In light of this nonretaliatory reason, the burden shifts back to Plaintiff to show that Defendant's proffered reason is merely pretextual. At this stage, the plaintiff has the burden of proving by a preponderance of the evidence that the employer's legitimate, nondiscriminatory reason is a mere pretext for illegal discrimination. It is not enough for the factfinder to disbelieve the employer's reason; rather, it must believe the plaintiff's explanation of intentional discrimination.
Smith v. Wal-Mart Stores, 891 F.2d 1177, 1178 (5th Cir. 1990).
Burdine, 450 U.S. at 256.
Reeves, 530 U.S. at 146-47.
Upon review of all of the evidence in the record and drawing all reasonable inferences in favor of Plaintiff, the Court finds that a genuine issue of material fact exists as to the pretextuality of Plaintiff's termination retaliation claim. The Court acknowledges that determinations as to the pretextual nature of an employment decision are generally left to the province of factfinders. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Thus, although the Court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Plaintiff submits evidence that an assistant manager, just two months before Plaintiff's termination, wrote a memo evincing a desire to promote Plaintiff. Rather than expressing an opinion of poor performance, the memo commented that Plaintiff brought talent to Defendant's San Antonio location. During his deposition, Plaintiff also denies using threatening language on the day of his termination.
Liberty Lobby, 477 U.S. at 255.
Reeves, 530 U.S. at 149-51.
Pl.'s Resp. to Def.'s Mot. for Summ. J. (Docket No. 15, Ex. 18, Record of Discussion).
Id. at Ex. 1, Gordon Depo.
While the Court acknowledges that Defendant has produced evidence contradicting Plaintiff's evidence, credibility determinations are inappropriate at the summary judgment stage. Thus, upon review of the record, the Court finds that Plaintiff has presented a jury-worthy issue as to the falsity of Defendant's nonretaliatory explanation. The Court will not disregard critical evidence favorable to Plaintiff — namely, the evidence supporting Plaintiff's prima facie case and undermining Defendant's nondiscriminatory explanation. Accordingly, the Court finds that a material fact issue exists as to Plaintiff's termination retaliation claim.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff's training retaliation claim fails as a matter of law, but Plaintiff's termination retaliation claim presents an issue of material fact. In accordance with these findings, the Court ORDERS that DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 13) be GRANTED regarding Plaintiff's training retaliation claim and DENIED regarding Plaintiff's termination retaliation claim. Further, because the parties agree that Plaintiff's ADA claim is no longer an issue, the Court reiterates that this cause of action is DISMISSED. It is so ORDERED.