Opinion
NO. 3-03-CV-0328-BD (P)
January 13, 2004
MEMORANDUM OPINION AND ORDER
Defendant Park Cities Volkswagen has filed a motion for summary judgment in this race discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. and Texas law. For the reasons stated herein, the motion is granted.
I.
In the fall of 2001, defendant ran a classified ad seeking "a few exceptional individuals" to sell Volkswagen automobiles at its new dealership in Dallas, Texas. (Def. App. at 008). Plaintiff Kenneth L. Harris, who is African-American, applied for the position and was interviewed by Art Long, a sales manager, in December 2001. (Plf. App. at 002). Shortly thereafter, plaintiff was invited back for a second interview with an unnamed manager in charge of hiring new personnel. (Id.). At that interview, the manager allegedly told plaintiff that "you look like you will intimidate my managers" and declined to offer him a job. (Id.).
Believing that he had been the victim of race discrimination, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in August 2002. (Def. App. at 011). The EEOC found no evidence of discrimination and issued a right-to-sue letter on November 13, 2002. (Id. at 020-21). On January 13, 2003, plaintiff, appearing pro se, sued defendant in Texas state court for race discrimination under Title VII and 42 U.S.C. § 1981, common law fraud, and false advertising. Defendant timely removed the case to federal court and now moves for summary judgment as to all claims and causes of action. The issues have been briefed by the parties and the motion is ripe for determination.
Federal subject matter jurisdiction is proper because plaintiff and defendant are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. (See Removal Not. at 1-2, ¶¶ 1-4, citing 28 U.S.C. § 1332). The court also notes that plaintiff's race discrimination claim "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991). A movant who does not have the burden of proof at trial need only point to the absence of a genuine issue of material fact. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993); Reid v. State Farm Mutual Automobile Insurance Co., 784 F.2d 577, 578 (5th Cir. 1986). However, conclusory statements, hearsay, and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
Defendant argues that plaintiff cannot prevail on his race discrimination, fraud, or false advertising claims as a matter of law. The court will address each claim in turn.
A.
In order to prevail on his Title VII claim, plaintiff must first establish a prima facie case of intentional discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnellDouglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). This requires plaintiff to show that: (1) he is a member of a protected class; (2) he applied for a position; (3) he was qualified for the position when he applied; (4) he was not hired; and (5) the position either remained open or was filled by a person outside the protected class. See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994); Frazier v. United Regional Health Care System, Inc., 2003 WL 21448850 at *2-3 (N.D. Tex. Apr. 17, 2003).
Once plaintiff establishes aprima facie case, a presumption of discrimination arises. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Burdine, 101 S.Ct. at 1094. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its employment decision. Hicks, 113 S.Ct. at 2749. This is only a burden of production, not persuasion. Once a legitimate explanation is proffered by the defendant, the plaintiff must prove that the reason given is merely pretextual. Id.; McDonnell Douglas, 93 S.Ct. at 1825.
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), a unanimous Supreme Court clarified the standard applicable to the final step of the McDonnell Douglas burden-shifting analysis. Reeves rejected the notion that a plaintiff must always introduce additional evidence of discrimination, over and above his prima facie case, to prove that the employer's proffered explanation is false:
Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt. Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.Id., 120 S.Ct. at 2108-09 (citations and punctuation omitted). The Fifth Circuit has since repudiated its "pretext plus" standard — which required a plaintiff to introduce additional, independent evidence of discrimination at the final step of the burden-shifting analysis — as inconsistent with Reeves. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003); Ratliff v. City of Gainesville, Texas, 256 F.3d 355, 361-62 n. 7 (5th Cir. 2001); Blow v. City of San Antonio, Texas, 236 F.3d 293, 297-98 (5th Cir. 2001); Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir. 2000); Russell v. McKinney Hospital Venture, 235 F.3d 219, 223 (5th Cir. 2000). But see Vadie v. Mississippi State University, 218 F.3d 365, 373 n. 23 (5th Cir. 2000), cert. denied, 121 S.Ct. 859 (2001) (commenting that "pretext plus" standard is generally consistent with Reeves). Thus, where a plaintiff establishes a primafacie case of discrimination, he may survive summary judgment merely by showing that the explanation proffered by the defendant for its employment decision is "unworthy of credence." Burdine, 101 S.Ct. at 1095, citing McDonnell Douglas, 93 S.Ct. at 1825-26.
Assuming arguendo that plaintiff can establish aprimafacie case of discrimination, he has failed to demonstrate pretext. Tommy Scruggs, General Manager of Park Cities Volkswagen, testified that defendant decided not to hire plaintiff because "it did not feel he was the best applicant for the sales positions that were available." (Def. App. at 001-02). Plaintiff offers no evidence to rebut this legitimate, non-discriminatory explanation. Instead, he claims that Art Long told him at his initial interview that no qualifications were necessary. (See Plf. App. at 003). Even if such a statement was made, defendant was certainly entitled to hire better qualified applicants for its sales positions. Plaintiff also relies on comments allegedly made by an unnamed personnel manager and two other African-American job applicants. According to plaintiff, the manager remarked that "you look like you will intimidate my managers." (Id. at 002). The other applicants told plaintiff that "the interview manager rejected them as not being the type of person the company was looking to hire." (Id. at 003). Such evidence, even if admissible, does not demonstrate pretext and is not probative of race discrimination. See Auguster v. Vermillion Parish School Board, 249 F.3d 400, 405 (5th Cir. 2001), citing Krystek v. University of Southern Mississippi, 164 F.3d 251, 256 (5th Cir. 1999) (absent substantial evidence of pretext, stray remarks are not probative of discrimination unless they relate to plaintiff's protected class). Defendant is entitled to summary judgment as to this claim.
The summary judgment evidence is probably sufficient to establish a prima facie case of discrimination. Plaintiff is a member of a protected class who applied for a sales position with defendant. According to plaintiff, "Park Cities management was interviewing individuals with `no experience' to be trained to sell vehicles the way management wanted." (Plf. App. at 003). The court has little difficulty in concluding that plaintiff was qualified for the sales position under this standard. See Rubenstein v. Administrators of the Tulane Educational Fund, 58 F. Supp.2d 702, 711-12 (E.D. La. 1998), aff'd in relevant part, 218 F.3d 392 (5th Cir. 2000) (plaintiff need only show that he has minimal qualifications for position); Steele v. SGS-Thompson Microelectronics, Inc., 962 F. Supp. 972, 976 (N.D. Tex. 1997) (same). The evidence further shows that defendant rejected two other minority applicants for the same job. (Plf. App. at 003). Although defendant hired an African-American car salesman less than two weeks before plaintiff was interviewed, it appears that there were several openings for the sales position. (Id.).
Plaintiff objects to the affidavit of Tommy Scruggs on multiple grounds, including lack of personal knowledge. (See Plf. MSJ Resp. at 3-7). Although Scruggs did not participate in the interview process, he clearly has personal knowledge of the policies and procedures used by defendant to make hiring decisions. (See Def. App. at 001-002). As a result, Scruggs is competent to testify as to the reason plaintiff was not hired by defendant.
The out-of-court statements made by two unidentified African-American job applicants are clearly hearsay and thus inadmissible as summary judgment evidence. See FED. R. EVID. 802.
Plaintiff's failure to establish a genuine issue of material fact with respect to his Title VII race discrimination claim is also fatal to his claim under 42 U.S.C. § 1981. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.), cert. denied, 118 S.Ct. 603 (1997); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996).
B.
Plaintiff also accuses defendant of committing fraud by inviting applicants with no prior experience to apply for a sales position and then refusing to hire them. (See Plf. Orig. Pet. at 4, ¶ IV-C). Under Texas law, the elements of fraud are "a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury." Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998) quoting Sears, Roebuck Co. v. Meadows, 877 S.W.2d 281, 282 (Tex. 1994). The classified ad placed by defendant was not a definite promise of employment to all who applied. A fraud claim cannot be premised on a promise that is so indefinite or vague that no reasonable person would justifiably rely on it. See Montgomery County Hospital District v. Brown, 965 S.W.2d 501, 503 (Tex. 1998); Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 558 (Tex.App.-San Antonio 1998, no writ). Consequently, defendant is entitled to summary judgment on this ground.C.
In a related claim, plaintiff sues for false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1). This statute, which prohibits the misleading use of words or symbols "in connection with any goods or services," is not applicable here. An invitation to apply for a job is neither a "good" nor a "service." Summary judgment is proper as to this claim.
CONCLUSION
There are no genuine issues of material fact and defendant is entitled to judgment as a matter of law. Accordingly, defendant's motion for summary judgment is granted and this action is dismissed by separate judgment filed today.
SO ORDERED.