Opinion
EP-99-CA-210-DB.
May, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant ABF Freight Systems' Motion for Summary Judgment, filed in the above-captioned cause on December 9, 1999. Plaintiff Robert B. Harris filed a Brief in Opposition to Defendant's Motion for Summary Judgment on January 3, 2000. Thereafter, on January 11, 2000, Defendant filed a Reply to Plaintiff's Opposition.
Defendant also filed a Motion to Strike Plaintiff's Summary Judgment Evidence on January 11, 2000. Plaintiff filed a Response to Defendant's Motion on January 24, 2000. Defendant filed a Reply to Plaintiff's Response on January 28, 2000. Also on January 28, 2000, Defendant filed a "Second Motion to Strike Plaintiff's Summary Judgment Evidence."
The Court finds that Defendant's objections to paragraphs twelve and thirteen of Plaintiff's Affidavit, wherein Plaintiff directly contradicts his own deposition testimony, are well taken. A plaintiff cannot defeat summary judgment by submitting such contradictory evidence without adequate explanation for the disparity. See Thurman v. Sears, Roebuck Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992); Albertson v. T.J. Stevenson Co., 749 F.2d 223, 228 (5th Cir. 1984). Accordingly, the Court is of the opinion that those two paragraphs of Plaintiff's Affidavit in support of his Opposition to the instant Motion should be stricken. All other objections are summarily denied.
After due consideration, the Court is of the opinion that Defendant's Motion should be granted for the reasons that follow.
FACTS
Defendant ABF Freight Systems ("ABF") is an interstate transportation company which moves freight by plane, train and truck. Among other facets of its transportation business, ABF operates a network of trucking terminals throughout the United States, including one in El Paso, Texas. Rather than carrying freight directly from sender to recipient using a single truck, ABF relays freight from terminal to terminal by different drivers, typically known as "over-the-road" ("OTR") drivers, until it reaches the terminal in or near the city of its final destination. Other drivers, generally known as "city drivers," then transport the cargo to its addressee within that city or general area.
Nearly every aspect of ABF's relationship with these drivers is governed by a collective bargaining agreement ("CBA") with the International Brotherhood of Teamsters (the "Union") in effect for the period of April 1, 1994, through March 31, 1998. Under the CBA, among other provisions, OTR drivers are not paid a salary; rather, ABF pays OTR drivers based on a combination of miles driven and non-driving time spent on driving-related activities such as fueling, waiting for cargo or completing paperwork.
In addition to complying with the CBA, the United States Department of Transportation ("DOT") regulates various aspects of the trucking business. The DOT requires OTR drivers to have a specific amount of rest and/or sleep between runs and limits driving time within a specific period. The DOT also requires ABF and OTR drivers to keep certain "logs" of their activities in order to document compliance with those limitations. Each OTR driver is required to complete daily logs throughout a work week and submit such logs to ABF at the end of the week. ABF potentially faces criminal sanctions for failure by its OTR drivers to keep accurate logs.
In general, under the CBA, seniority (i.e., longevity of service) determines benefits, position selection and work schedules, among other things. The CBA also dictates how and whether drivers become city drivers or OTR drivers. OTR drivers "bid" on desired routes approximately every six months. The driver with the highest bid (i.e., the one with the most seniority) collects his desired schedule.
ABF's central dispatch office in Forth Smith, Arkansas, coordinates and schedules OTR runs. The dispatch office informs supervisors at the El Paso terminal when particular freight is expected to arrive, its subsequent destination and the deadlines for arrival at that next location. There are three OTR supervisors in the El Paso terminal who coordinate such information from the central dispatch office: Stephen Smith, David Lopez and Jesse De La Rosa ("De La Rosa"). These supervisors, in turn, report to a terminal manager. From 1994 through September 1998, Matt Turrieta ("Turrieta") was the terminal manger in El Paso.
In general, because arriving freight destined for another delivery location has a deadline for arrival at the next terminal, ABF must move freight out of the terminal as soon as possible. During a twenty-four hour "bid day," OTR drivers either are driving, resting or "on call" to make a run. Although supervisors have an estimated time of arrival for freight, ABF does not have predetermined times for such runs. Sometimes, central dispatch directs that freight be consolidated with other subsequently arriving freight with the same destination, delaying a departure time or cancelling a run altogether. Other times, freight is delayed or diverted en route to El Paso. Supervisors at the terminal have no unilateral authority to delay freight, and their individual performance is evaluated in part on the ability to handle directives from central dispatch.
Occasionally, OTR runs must be cancelled for any number of reasons. In that event, ABF maintains an "extra board" used to dole out any extra, unscheduled runs. Also, a bid driver may elect initially to be on the "extra board" rather than to have a regular bid schedule. Under the CBA, ABF need not award an extra run to a driver who already has made three runs in a week, and any extra run must not interfere with a driver's subsequently scheduled runs. Also, a bid driver who places his name on the extra board must be able to meet all DOT driving time limitations and rest requirements in order to take any extra run.
The CBA also dictates how OTR drivers schedule a vacation. During the first month of each year, drivers submit a proposed vacation schedule for the upcoming year and, once again, seniority controls which driver will have his desired vacation schedule. In addition, drivers may later in the year select dates based on a "first come, first served" system (regardless of seniority) by submitting a written request for vacation pay. Such additional requested days cannot displace another driver's previously-scheduled vacation days.
During 1997, ABF employed two OTR drivers and seventeen city drivers in its El Paso terminal. Since 1986, Plaintiff has been one of two OTR drivers in the El Paso terminal. During 1997 and 1998, Plaintiff and another OTR driver, Henry Ramos ("Ramos"), regularly divided delivery runs to Phoenix, Arizona on alternating days. Although Ramos is older than Plaintiff — Ramos is at least sixty-five and Plaintiff fifty-eight — Plaintiff had more seniority during the time the two worked together. Consequently, Plaintiff regularly had his choice of scheduled runs, and Ramos was relegated to the remaining schedule. Plaintiff changed schedules often based on what he considered was the "better" schedule at the time.
It appears that Plaintiff retired from ABF in December 1999 during the pendency of the instant Motion. See Plaintiff's December 31, 1999, Affidavit, ¶ 28.
Whenever a driver must rest during a run — for example, between outbound and inbound legs of the El Paso to Phoenix run — the CBA requires ABF to provide adequate lodging or pay the employee a minimum of $13.50 in lieu of such lodging. In Phoenix, ABF provides compliant accommodations via an arrangement with a local motel. ABF does not pay drivers who elect not to use the provided lodging in Phoenix.
In February 1997, Ramos authored a note to De La Rosa stating, "you better not give my Tuesday load to the Antimex (Harris)! I mean it!" Ramos testified in his deposition that he referred to Plaintiff as "the Antimex" because he overheard Plaintiff make several derogatory remarks about Mexicans. Plaintiff alleges that he complained to De La Rosa, who allegedly took no disciplinary action against Ramos.
In early 1997, ABF laid off several city drivers at the El Paso terminal: Juan Polanco, Faustino Hernandez and Art Roybal. Shortly thereafter, ABF allowed those laid off city drivers to make extra runs which normally would have been placed on the "extra board" for only an available OTR driver to take. Because the OTR/city driver distinction is a creature of the CBA, ABF obtained the Union's approval to do so. ABF continued the practice for some four to six months. Plaintiff's bid schedule was not affected.
In October 1997, Plaintiff was not allowed to take vacation time for a particular week in September because Ramos already was scheduled. Plaintiff claims that when he orally informed De La Rosa in September 1997 of this plan, Ramos was not scheduled for vacation for that week. Ramos entered a formal request on September 2, 1997, for vacation for the same week Plaintiff allegedly already had planned. Although Plaintiff's request was oral and Ramos's written, Plaintiff contends that, when he later asked De La Rosa about his request, De La Rosa acknowledged writing down the vacation request, but said he could not find the notation anywhere and, on that basis, awarded vacation for that week to Ramos. Plaintiff claims that another man, Tony Ortega, witnessed the September 1997 vacation request.
According to Plaintiff, Ramos "messed with" the daily log sheets he is required to keep under DOT regulations and ABF policy and/or a daily pay sheet which drivers submit to ABF for payment for their activities. At some point in 1997, Plaintiff allegedly discovered that several pay sheets were missing. He suspected Ramos "messed with" those pay sheets because he believed Ramos to be the only person at the terminal on that day, a Sunday, and thereafter set out to "set up" Ramos. Plaintiff went to the terminal on a Sunday, placed his log sheets in a certain place and went down the street to surveil the terminal. After Ramos left on his regular run, Plaintiff returned to the terminal and allegedly found his log sheets on the floor. In his car, Plaintiff then chased Ramos, who stopped after Plaintiff flashed his lights and sounded his horn repeatedly. Fearing for his safety, Ramos got out of the truck holding a "tire billy" (a stick used to check a truck's tire pressure) on his shoulder. Plaintiff accused Ramos of "messing with" Plaintiff's log sheets, cursed at Ramos, and told Ramos that he (Plaintiff) had just "set [Ramos] up." Ramos admitted to Plaintiff that he had looked at the log sheets, which he did because he believed Plaintiff was "cheating" on his driving/rest documentation. Plaintiff reported the incident to Turrieta and De La Rosa, who, according to Plaintiff, just laughed at Plaintiff in front of a Union representative. Plaintiff did not file any grievance with the Union over the incident. Turrieta counseled both drivers about the incident, warned each about physical violence on the job and informed the two that violence could be grounds for termination.
There is some conflict in testimony regarding where these log sheets ended up. Plaintiff testified in his deposition that he found the sheets on the floor. Ramos, on the other hand, testified in his deposition that he picked up the log sheets and placed them where log sheets are supposed to be placed, just inches away from where Plaintiff left them.
Based on these events, Plaintiff filed two separate charges of discrimination with the United States Equal Opportunity Employment Commission ("EEOC") on December 2, 1997, and March 7, 1998, alleging, in pertinent part, race, national origin and age discrimination, and retaliation for having made a claim of discrimination. Essentially, Plaintiff contends that the following events took place because of his race — Caucasian — and/or national origin — the United States — and/or because of his age — over forty: he was not allowed to take a week's vacation; his complaints to ABF about Ramos were not acted upon to Plaintiff's contentment; he was not given extra runs; his runs were delayed or cancelled; ABF refused to pay him a lodging allowance in Phoenix; and ABF did not allow him to alter his work schedule to guarantee that he would have at least fifteen hours of rest between runs.
More aptly with respect to his race and national origin claims, Plaintiff seems to contend discrimination based on the fact that he is not Hispanic and Mexican-American, respectively.
According to his calculations, Plaintiff's runs from October 1998 through March 1999 were delayed or cancelled, twelve times more often than Ramos's runs.
Plaintiff commenced this suit by filing a Complaint against Defendant in this Court on June 30, 1999, therein alleging race and national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII"); and age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA").
The instant Motion for Summary Judgment followed.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Proc. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-55, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
Plaintiff claims that he suffered discrimination at ABF's hands based on his race, his national origin and his age, and that ABF retaliated against him because he sought to enforce his rights under Title VII through the EEOC. Through the instant Motion, ABF has shown that the facts are not in dispute, and Plaintiff has not shown otherwise. Furthermore, as the Court details below, ABF is entitled to judgment as a matter of law as to each of Plaintiff's claims. In employment discrimination cases, it is imperative that the nonmovant "present evidence — not just conjecture and speculation" that the defendant discriminated against the plaintiff on the basis of a protected trait. See Grimes v. Tex. Dep't of Mental Health, 102 F.3d 137, 140 (5th Cir. 1996). The focus is on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Id. at 139. A plaintiff can prove such discriminatory animus by direct evidence or by an indirect or inferential method of proof. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Absent direct proof, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence to raise an inference of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). The burden then shifts to the defendant to rebut that inference by articulating a legitimate, nondiscriminatory reason for the challenged employment action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant articulates such a reason, the inference of discrimination drops out. See Bauer, 169 F.3d at 967 (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)). The burden of proving the ultimate question — whether the defendant intentionally discriminated against the plaintiff — remains always with the plaintiff, which can be met by demonstrating that the defendant's proffered reasons were merely pretext. See Rhodes, 75 F.3d at 993.
I. Disparate Treatment
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . or national origin." 42 U.S.C. § 2000e-2(a)(1). Similarly, the ADEA prohibits such conduct based on age. See 29 U.S.C. § 623(a)(1).
To establish a prima facie case of discrimination under Title VII, Plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for his position; (3) that he suffered an adverse employment action; and (4) that someone outside the protected class was more favorably treated. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996). Under the ADEA, the first three prima facie elements are the same as under Title VII. See Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995). The fourth ADEA element, however, also allows the plaintiff to show that the individual more favorably treated is simply younger than the plaintiff, even if that person is also a member of the protected age group. See Bauer, 169 F.3d at 166 (noting in discharge case three optional parts to ADEA's fourth element) (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993) (same)).
Defendant takes a multi-pronged attack with respect to each of Plaintiff's allegations. With respect to Plaintiff's prima facie case, Defendant concedes that Plaintiff meets the first and second elements, but contends that Plaintiff suffered no adverse employment action and was not treated less favorably than other employees outside the protected group — the third and fourth elements. Even if Plaintiff could establish a prima facie case, Defendant articulates legitimate nondiscriminatory reasons for every alleged discriminatory action and contends that Plaintiff cannot prove pretext. The Court agrees.
A. Adverse Employment Action
In general, "adverse employment actions can include discharges, demotions, refusals to hire, refusals to promote, and reprimands." Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999). "Employment actions are not adverse where pay, benefits, and level of responsibility remain the same." Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."). Thus, changes in work schedule, purely lateral transfers, denial of training and being assigned extra work are not adverse employment actions. See Watts, 170 F.3d at 510 (schedule and workload changes); Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879-80 (5th Cir. 1999) (transfers); Dollis v. Rubin, 77 F.3d 777, 779-82 (5th Cir. 1995) (training).
Here, Plaintiff was neither discharged, demoted, refused any promotion nor reprimanded. Rather, Plaintiff complains of the following allegedly adverse employment actions: (1) he was not allowed to take vacation in a particular week; (2) his complaints to ABF about Ramos were not acted upon to Plaintiff's contentment; (3) he was not given extra runs; (4) his runs were delayed or cancelled; (5) he did not get a lodging allowance; and (6) he was not allowed to alter his work schedule to guarantee that he would have at least fifteen hours of rest between runs.
Except for the fourth and sixth contentions, the Court finds that none of the allegedly discriminatory actions sufficiently amounts to an "adverse employment action" for Plaintiff to meet his prima facie burden. Plaintiff contends that ABF's "practice of canceling his runs cost him over five thousand dollars during a five-months [sic] time period" and "practice of arbitrarily delaying his departure times was a cause of his sleep deprivation disorder which resulted in his being off work for a year." Plaintiff also claims that ABF's refusal to modify his work schedule to remedy his sleep disorder exacerbated his inability to return to OTR driving, which, in turn, caused him further monetary losses. Because these alleged employment actions allege some base economic consequence to Plaintiff, the Court finds them sufficient, for these purposes, to constitute actionable adverse employment actions.
In contrast, the Court finds that none of the following actions, even if true, takes any tangible job benefit away from Plaintiff and, hence, does not constitute an adverse employment action: that Plaintiff was not allowed to take a vacation on his choice of weeks; unresolved complaints about another employee; not being allowed to work more than scheduled or permissible under the CBA; and ABF's refusal to pay Plaintiff a lodging allowance when Plaintiff chose to stay at his own residence in Phoenix instead of the hotel ABF provided.
B. Treatment of Persons Outside the Protected Class
Defendant next contends that Plaintiff cannot meet the fourth element of the prima facie case because he cannot show that Hispanics and or Mexican-American and/or younger employees were treated more favorably.
First, with respect to Plaintiff's allegation that his runs were cancelled or delayed more than Ramos's, Plaintiff concedes that any age claim fails because Ramos is, in fact, older than Plaintiff. However, Plaintiff maintains that Ramos received more favorable treatment with respect to delays and cancellations because Ramos is Hispanic and/or Mexican-American. To support this contention, Plaintiff attaches to his affidavit several calendar pages purporting to reflect a disparity between the number of times Plaintiff's runs were cancelled or delayed versus the number of times Ramos's runs were cancelled or delayed. Through those calendars, Plaintiff contends that the cancellation rate for his runs is some twelve times greater than for Ramos's runs. Although the Court notes the frailty of Plaintiff's evidence (e.g. that Plaintiff only produces such calendars from October 1998 through March 1999, even though his complaints about favorable treatment to Ramos date back to early 1997), the Court finds that Plaintiff's contention is sufficient for prima facie purposes.
Second, with respect to Plaintiff's contention that ABF denied Plaintiff a modified work schedule, Plaintiff contends that ABF gave more favorable treatment to younger, Hispanic and/or Mexican-American city drivers when ABF "went out of its way" to gain Union approval to allow those laid off drivers to take extra OTR runs. Plaintiff claims that, in contrast, ABF refused to allow Plaintiff to work as a city driver to help alleviate his sleep disorder and "forced Plaintiff to be off work for one year until he could obtain a medical clearance." Even viewing this evidence in a light most favorable to Plaintiff, Plaintiff simply stretches his reasoning too far. Plaintiff was not a city driver and those city drivers were not afflicted with a sleep disorder. Therefore, Plaintiff cannot use those city drivers as a similarly situated comparitor. See, e.g., Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 425-26 (5th Cir. 1999) (noting that comparisons for disparate treatment purposes must be to similarly situated employees) (citing Rhodes, 75 F.3d at 993); Nieto v. L H Packing Co., 108 F.3d 621, 623 (5th Cir. 1997) (same).
After reviewing the evidence and arguments, the Court finds that Plaintiff cannot make a prima facie case for age discrimination. Accordingly, the Court is of the opinion that summary judgment should enter as to that claim. With respect to Plaintiff's race and national origin claims, the Court finds that Plaintiff has stated a prima facie case that ABF discriminated against him by delaying or cancelling his runs more frequently than Ramos's. Hence, the Court acknowledges an inference of discrimination as to these claims, which shifts the burden of production to Defendant. See Burdine, 450 U.S. at 255, 101 S.Ct. at 1094.
C. Legitimate Nondiscriminatory Reasons
ABF has articulated a legitimate nondiscriminatory reason for each action Plaintiff claims was based on his race and/or national origin. As relevant here, Defendant contends that the very nature of the business makes absolute accuracy in anticipated arrival times and departure times impossible and that there are many reasons to delay or cancel freight — for example, for consolidation. Moreover Defendant presented evidence that "[t]he scheduling of runs through the El Paso terminal is directed by ABF's central dispatch, and the individual supervisors at the terminal do not have authority to delay or cancel freight."
Defendant having met its burden, Plaintiff must prove that an employer's stated legitimate, nondiscriminatory reason for any allegedly discriminatory action (1) is false — i.e. not the true reason for the employer's action — and (2) that the true reason was the plaintiff's protected status. See Rhodes, 75 F.3d at 994-95 n. 6. At this stage, the Court must determine "whether there is a conflict in substantial evidence to create a jury question regarding discrimination." Shackelford, 190 F.3d at 405.
Here, Plaintiff fails to set forth any evidence that the alleged adverse employment action was taken because of his race and/or national origin. Indeed, Plaintiff merely contends that Defendant has not articulated a nondiscriminatory reason with respect to delayed/cancelled runs and, therefore, Plaintiff has no burden to prove pretext. Unfortunately for Plaintiff, the Court finds that Defendant indeed has articulated a legitimate nondiscriminatory reason for any perceived disparate treatment. Moreover, what little evidence Plaintiff does present appears to be based solely on his own subjective belief that the challenged conduct is because of his race and/or national origin rather than the stated nondiscriminatory reasons. Without more, Plaintiff's subjective beliefs are not sufficient to show pretext. See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, —, No. 99-10554, 2000 WL 358295, at *6 (5th Cir. April 24, 2000) (refusing to "rely on [the plaintiff's] subjective belief that [the defendant] discriminated against him because he was white" and upholding summary judgment for employer); Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1995) (en banc) ("In short, conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden.").
The Court further notes that Defendant articulates a legitimate nondiscriminatory reason as to each action Plaintiff alleges constitutes discrimination. As such, because Plaintiff does not present any evidence of pretext, even if the Court had not already found that Plaintiff cannot state a prima facie case as to those acts, the Court would find here that Plaintiff's unsupported subjective beliefs are also insufficient as to all of his claims in this cause.
Consequently, the Court finds that Plaintiff has failed to meet his ultimate burden of proof as to each disparate treatment claims and summary judgment should enter as to each of Plaintiff's disparate treatment claims.
II. Retaliation under Title VII
Finally, Plaintiff claims that ABF retaliated against him because he filed two claims with the EEOC. Title VII makes it unlawful for an employer to retaliate against an employee who makes a charge of discrimination. See 42 U.S.C. § 2000e-3. To establish a prima facie case of retaliation in violation of Title VII, Plaintiff must show: (1) that he participated in an activity protected by Title VII; (2) that he suffered an ultimate employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).
Here, it is undisputed that Plaintiff filed two EEOC charges of discrimination. Hence, Plaintiff meets the first element. With respect to the second element, as discussed above, the Court finds that Plaintiff's allegations of loss of income attributable to cancelled and delayed runs constitute adverse employment action for these purposes. However, the Court finds that Plaintiff cannot demonstrate that he suffered an ultimate employment action as required for retaliation claims. See Sharp, 164 F.3d at 933 n. 21 (noting ultimate employment action required in retaliation action); Mattern, 104 F.3d at 707 ("Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating."). Moreover, Plaintiff does not demonstrate any causal connection between participation in the protected activity and the allegedly adverse action. In fact, Plaintiff wholly ignores this third element. Accordingly, the Court finds that Plaintiff fails to state a prima facie case for retaliation under Title VII and summary judgment should enter in Defendant's favor as to that claim also.
III. Conclusion
Federal employment discrimination laws are "not intended to be a vehicle for judicial second-guessing of business decisions . . . [or] to transform the courts into personnel managers." EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1448 (5th Cir. 1995). Having examined in detail the discrimination Plaintiff alleges, the Court is of the opinion that, because Plaintiff cannot make a showing, any showing whatsoever, that the events which took place at ABF's El Paso terminal from 1997 until his retirement were in any way related to his race, national origin, age or protected activity, Plaintiff's case approaches frivolity and, consequently, the Court enters summary judgment for Defendant as to each of Plaintiff's claims.
Accordingly, IT IS HEREBY ORDERED that Defendant ABF Freight Systems' Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that Defendant ABF Freight Systems' "Motion to Strike Plaintiff's Summary Judgment Evidence" is GRANTED IN PART.
IT IS FURTHER ORDERED that paragraphs twelve and thirteen of Plaintiff's Affidavit in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment are STRICKEN to the extent those averments contradict Plaintiff's deposition testimony.
IT IS FINALLY ORDERED that Defendant's Second Motion to Strike Plaintiff's Summary Judgment Evidence is DENIED.