Opinion
Civil Action No. 3:02-CV-2597-K.
June 16, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Blockbuster, Inc.'s Motion for Summary Judgment, filed February 26, 2004. After carefully considering the motion, response, reply, pleadings, summary judgment evidence and the applicable law, the Court rules as follows:
I. Factual and Procedural Background
Plaintiff Bobby Hughes ("Hughes") was initially employed by Blockbuster, Inc. ("Blockbuster") in July 1999. Hughes worked in Blockbuster's McKinney, Texas Warehouse Distribution Center ("WDC") as a Senior Human Resources Generalist. Between 1999 and 2002, when he was terminated by Blockbuster, Hughes held several human resources positions at the WDC.
When he started with Blockbuster in 1999, Hughes received an annual salary of $48,880. By March 2001, after various promotions, merit increases and compensation adjustments, Hughes was earning $85,330 as a Human Resources Director. In January 2001, Hughes had approached his then-supervisor, Steve Becker ("Becker") telling Becker that he thought his salary was lower than that of other similarly-situated employees. Becker told him that due to a salary "freeze" currently in effect at Blockbuster, he could not adjust Hughes' compensation at that time. Becker offered to adjust Hughes' salary when the freeze was lifted, and Hughes agreed to delay the requested salary adjustment. In November 2001, Bob Morrison ("Morrison") became Hughes' supervisor. Hughes informed Morrison of Becker's earlier promise to raise his salary, but Morrison did not increase Hughes' salary at that time.
In January 2002, Morrison prepared Hughes' performance appraisal for 2001. Because he had not been supervising Hughes for long, Morrison went to WDC managers that Hughes supported for input into Hughes' performance. On February 6, 2002, Morrison and Hughes met to discuss Hughes' performance appraisal. Morrison informed Hughes that he had scored low in the areas of customer service and teamwork. Hughes received a "did not meet targets" rating in several areas, although his overall rating was "met targets." Morrison also told Hughes that he would receive a 2% merit increase based on his overall "met targets" rating. Hughes raised concerns about his rating to Morrison, and he believes that Morrison then went to gather more information before completing the review.
Hughes filed an EEOC charge of discrimination the next day, claiming that Blockbuster discriminated against him due to his race because he was denied a retroactive salary increase in November 2001, had been given "extra responsibilities" since January 2001, and had not been invited to the majority of Bill Wissing ("Wissing")'s staff meetings since October 2001. Wissing was a manager that Hughes supported.
Morrison met with Hughes in late March 2002 to discuss Hughes' 2001 performance appraisal again. At that meeting, the appraisal presented to Hughes stated that Hughes "did not meet targets" in only two categories versus the four categories originally shown on the appraisal. Hughes' overall rating remained at "met targets," as it had been at their meeting in early February. Around that same time, Hughes filed another charge of discrimination with the EEOC, this time alleging that Blockbuster retaliated against him because he had not been given his annual appraisal or a merit increase. Hughes also complained in that same charge that he was having problems getting his supervisor to return phone calls and that he had been embarrassed in the presence of another manager.
At the March meeting, Morrison also told Hughes he would be getting a $7200 salary adjustment, and that his new supervisor would be Maurice Ambler ("Ambler"). Ambler, an African-American male, had been hired by Blockbuster in January 2002 as Vice President of Human Resources for Blockbuster's U.S. stores. Ambler had previous experience managing distribution centers, and became responsible for human resources at all of Blockbuster's stores and distribution centers within the United States, including the WDC.
On March 29, 2002, Ambler became responsible for the WDC and Hughes began reporting to him. After he became responsible for the WDC, Ambler held meetings with all of the WDC employees who worked in human resources, including Stacy Evans ("Evans"), Kelly McIntyre ("McIntyre") and Rakelle Sanford ("Sanford"), all of whom reported to Hughes. Ambler also spoke to Hughes and suggested that he drop his EEOC charges, because Ambler wanted to recommend that Hughes eventually succeed him as Vice President of Human Resources for U.S. stores, but felt that upper management would not support his recommendation if Hughes had a charge pending against Blockbuster.
In April 2002, Ambler was informed by his assistant that Evans wanted him to call her. When Ambler spoke to Evans, she informed him that during a meeting she had with Hughes regarding human resources matters, Hughes yelled at her and caused her to cry. Hughes admits that during this meeting he was "elevating" his voice and talking loud. McIntyre and Sanford also had complaints about Hughes, and thus Ambler suspended Hughes with pay while he investigated. On April 30, 2002, Ambler informed Hughes of his suspension and told him that he was doing an investigation because some of Hughes' employees were intimidated by him and because he had made inappropriate comments to some of his employees.
During the investigation, Ambler met with all of Hughes' direct reports. Evans and Sanford complained that Hughes had commented inappropriately on their appearance and that he told Sanford "raise your shirt so that I can see your abs." Additionally, Evans told Ambler that Hughes had offered to take care of her dog while she was out of town and stated that while he was at her house "[he] could maybe try on your underwear and sniff them." Several employees also reported that Hughes behaved unprofessionally, acting angry, belligerent, and threatening and yelling at them. Ambler was also told that Hughes called female subordinates at home to discuss personal matters, and that he stated that Sanford must have AIDS in the presence of other employees. After concluding his investigation, Ambler decided to terminate Hughes' employment. On May 3, 2002, Hughes' employment with Blockbuster was terminated.
Hughes filed suit against Blockbuster on December 3, 2002, bringing claims of racial discrimination and retaliation under 42 U.S.C. § 1981. Specifically, Hughes claims that Blockbuster discriminated against him because of his race by failing to include him in meetings on the same basis as his white peers, by giving him discriminatory performance appraisals, and failing to pay him on the same basis as his white peers. Hughes has also pleaded a retaliation claim, alleging that Blockbuster terminated him in retaliation for having complained of racial discrimination and filing a charge of race discrimination. Blockbuster now moves for summary judgment on all of Hughes' claims.
II. Summary Judgment Standard
Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists 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, 322, 106 S.Ct. 2548, 2551 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25, 106 S.Ct. at 2551-54. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321-25, 106 S.Ct. at 2551-54; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 2513-14 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962).
III. Blockbuster's Motion for Summary Judgment
Although Hughes has elected to bring his claims of discrimination and retaliation under 42 U.S.C. § 1981, the burden-shifting analysis found in McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973) applies. Raggs v. Mississippi Power Light Co., 278 F.3d 463, 468 (5th Cir. 2002); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 422 n. 1 (5th Cir. 2000). Hughes' discrimination and retaliation claims will be analyzed individually below.
A. Discrimination Claims
To survive summary judgment on his discrimination claims, Hughes must first establish a prima facie case of intentional discrimination. Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). If Hughes successfully articulates a prima facie case of discrimination, the burden then shifts to Blockbuster to explain the circumstantial evidence of discrimination by providing a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802; Raggs, 278 F.3d at 468. If Blockbuster carries this burden, Hughes then must demonstrate that Blockbuster's articulated rationale is pretextual, and that the real reason for its decision was an intent to discriminate against him because of his race. Id.; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Hughes contends that he has suffered racial discrimination because Blockbuster failed to include him in meetings on the same basis as his white peers, gave him discriminatory performance appraisals, and failed to pay him on the same basis as his white peers.
To establish his prima facie case of discrimination, Hughes must show (1) that he belongs to a protected class; (2) that he is qualified for the position; (3) that he was subjected to an adverse employment action; and (4) that he was replaced by someone outside the protected class or that others were treated more favorably. Okoye v. Univ. of Texas Houston Health Science Center, 245 F.3d 507, 512-13 (5th Cir. 2001); Price v. Federal Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). Hughes has satisfied the first element of his prima facie case because, as an African-American, he is a member of a protected class under section 1981.
To satisfy the "adverse employment action" prong of his prima facie case, Hughes must show that Blockbuster took an "ultimate employment action" against him. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705-07 (5th Cir.), cert. denied, 522 U.S. 932 (1997). Blockbuster argues that with respect to some of his discrimination claims Hughes cannot meet the second element of his prima facie case, because the actions he complains of are not ultimate employment actions that would invoke the protection of 42 U.S.C. § 1981.
In the employment context, the protections of section 1981 are focused on ultimate employment decisions such as hiring, firing, granting leave, discharging, promoting and compensating. Id. at 707; see also Foley v. Univ. of Houston System, 355 F.3d 333, 340 (5th Cir. 2003), citing Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). The statute does not redress other employment-related decisions that may have some tangential effect on an ultimate employment decision but are not ultimate employment decisions in and of themselves. Id.; Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001); Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 519 (5th Cir. 2001).
Hughes argues that the requirement of an ultimate employment decision is inapplicable in the discrimination context and should be narrowly interpreted to apply only to his retaliation claim. The Court respectfully disagrees with Hughes' position, as the Fifth Circuit (and district courts therein) have required an ultimate employment action to sustain a discrimination claim. See, e.g., Pegram, 361 F.3d at 282; Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002); Talamantez v. Corrections Corp. of America, 202 F. Supp.2d 546, 553 (N.D. Tex. 2002); Bynum v. Fort Worth Independent School Dist., 41 F. Supp.2d 641, 655 (N.D. Tex. 1999). Moreover, as Blockbuster notes, the Fifth Circuit reiterated in Felton that its opinion in Dollis, 77 F.3d at 782, did not distinguish between discrimination and retaliation claims when stating that an ultimate employment action is required to establish a prima facie case under either theory. 315 F.3d at 486. With this framework in mind, the Court will analyze each of Hughes' race discrimination claims.
1. Failure to Include Hughes in Meetings and Alleged Discriminatory Performance Appraisal
Hughes contends Blockbuster discriminated against him because Wissing (a Blockbuster Vice President) excluded him from certain staff meetings he feels he should have attended. He further alleges that when Morrison prepared his 2001 performance review (and solicited information from Wissing in doing so), Wissing criticized him for failing to attend those meetings.
Standing alone, Hughes' exclusion from staff meetings is not an ultimate employment decision that will satisfy the "adverse employment action" prong of his prima facie case of discrimination. Similarly, Hughes' allegation that he received an unfavorable review (whether or not due to misinformation provided by Wissing) is not an ultimate employment action that rises to the level of a constitutional deprivation. Ross v. Univ. of Texas at San Antonio, 139 F.3d 521, 527 (5th Cir. 1998); Stockbridge v. First Consulting Group, Inc., 2004 WL 877384, *3 (N.D. Tex. 2004); Turman v. Greenville Indep. School Dist., 2004 WL 350683, *5 (N.D. Tex. 2004).
Moreover, even if Hughes' performance review could legally support his racial discrimination claim, Hughes has merely provided evidence that Morrison may have evaluated him incorrectly because of inaccurate information provided by Wissing. Even an incorrect belief that an employee's performance was inadequate will suffice as a legitimate, non-discriminatory reason for an employer's action. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); Winter v. Bank of America, N.A., 2003 WL 23200278, *6 (N.D. Tex. 2003). Motive is the issue, and a dispute in the evidence concerning job performance is not sufficient to raise a material fact issue regarding whether Morrison intended to discriminate against Hughes because of race. Id. For all of these reasons, Blockbuster is entitled to summary judgment on Hughes' claims of racial discrimination related to his alleged exclusion from meetings and his performance appraisal.
2. Unequal Pay Claim
In his final claim of discrimination, Hughes alleges that he was not paid on the same basis as his white peers. Blockbuster argues that it is entitled to summary judgment on this claim because he cannot establish, as part of his prima facie case, that he was paid less than other similarly situated non-protected employees. Additionally, Blockbuster contends that when the record evidence is considered, some of his non-African-American comparators actually earned less than Hughes did.
Hughes' last salary at Blockbuster was $92,500. In his deposition and his affidavit, Hughes named Cathy Benson ("Benson"), Glen Goodman ("Goodman"), Thomas Grissom ("Grissom"), Ana Riviera ("Riviera"), Ritchie Core ("Core"), Julian Gloria ("Gloria") and Glenda Shelby ("Shelby") as non-African-American counterparts who earned more than he did. However, Hughes admits that all of these employees had been employed by Blockbuster longer than he had. An employer can compensate employees differently based on a seniority system or length of service. Hockman v. Westward Communications, L.L.C., 282 F. Supp.2d 512, 527 (E.D. Tex. 2003), citing Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th Cir. 2001), cert. denied, 537 U.S. 1087 (2002). Additionally, the summary judgment record reflects that Gloria actually earned less than Hughes. Therefore, Hughes has failed to establish his prima facie case of discrimination regarding his salary.
Additionally, even if he had successfully established a prima facie case of salary discrimination, Hughes has set forth no evidence of pretext. For Hughes to demonstrate that his stated comparators are similarly-situated, he must show that their circumstances were "nearly identical" to his. Hockman, 282 F. Supp.2d at 527, citing Okoye, 245 F.3d at 514. When applied at the McDonnell Douglas pretext stage, the "nearly identical" standard is stringent — employees with different responsibilities, supervisors or capabilities are not considered to be "nearly identical." Okoye, 245 F.3d at 514. See also Stith v. Perot Systems Corp., 2004 WL 690844, *8 (N.D. Tex. 2004) (for salary discrimination claim, comparators must be in "virtually identical" positions). Hughes merely states in a conclusory fashion that Benson, Goodman and Grissom each "hold a comparable position" to his in Blockbuster's Human Resources department. Hughes has set forth no evidence to show that these individuals (or his earlier comparators Riviera, Core, Gloria and Shelby) held positions requiring equal skill, effort and responsibility under similar working conditions. Accordingly, Hughes' summary judgment evidence does not meet the "nearly identical" standard set out by the applicable case law, and he has failed to raise a genuine issue of material fact whether Blockbuster's decisions regarding his compensation were racially motivated. Summary judgment will be entered for Blockbuster on this claim.
B. Retaliation Claim
Hughes asserts that Blockbuster retaliated against him by terminating him because he had filed charges of discrimination with the EEOC. As with his discrimination claims, Hughes must first establish a prima facie case of retaliation by showing that (1) he engaged in activities protected by § 1981; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between his protected activity and the adverse employment action. Raggs, 278 F.3d at 471; Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir. 2001). The Court notes, however, that the causal link required by the third prong of the prima facie case does not rise to the level of a "but for" causation standard. Ackel v. Natl. Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003); Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); Raggs, 278 F.3d at 471.
Blockbuster disputes whether Hughes has provided sufficient evidence to satisfy the "causal connection" element of his prima facie case. Hughes' evidence of a causal connection is that he was terminated about three months after he filed his first EEOC charge, that Ambler asked him to drop his EEOC charges, and that Ambler (who made the decision to discharge Hughes) was aware of Hughes' protected activity when he decided to terminate him. Close timing between an employee's protected activity and the adverse employment action complained of can provide the needed causal connection to make out a prima facie case of retaliation. Evans, 246 F.3d at 354; Swanson v. General Svcs. Admin., 110 F.3d 1180, 1188 (5th Cir.), cert. denied, 522 U.S. 948 (1997). In Evans, the Fifth Circuit noted that a time lapse of up to four months has been found sufficient to satisfy the causal connection requirement for summary judgment purposes. 246 F.3d at 354. Additionally, the fact that Ambler had knowledge of Hughes' EEOC charges before he made the decision to terminate him also supports the causal connection element of Hughes prima facie case. Ackel, 339 F.3d at 385-86; Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).
Conversely, Blockbuster argues that other intervening events undermine Hughes' prima facie case of retaliation, specifically the employee complaints made against him after he filed his EEOC charges and the merit increase he received. While it is true that these facts do mitigate Hughes' prima facie showing to some extent, only a minimal showing is needed to meet his prima facie burden. Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999). Moreover, at the summary judgment stage, the Court must indulge all reasonable inferences in favor of Hughes, the nonmovant. Therefore, the Court finds that Hughes has set forth sufficient evidence to establish his prima facie case of retaliation.
Because Hughes has established his prima facie case, the burden now shifts to Blockbuster to articulate a legitimate, non-retaliatory reason for its decision to terminate Hughes' employment. Gee, 289 F.3d at 347; Fierros, 274 F.3d at 191. The Court finds that Blockbuster has sufficiently carried this burden by presenting evidence that Ambler decided to discharge Hughes because of the complaints of his subordinates and the information discovered in the investigation that followed. Accordingly, Hughes is required to set forth evidence raising a genuine issue of material fact whether Blockbuster's articulated reason for his termination is actually a pretext for retaliation. Fierros, 274 F.3d at 191-92; Mota, 261 F.3d at 519-20.
Attempting to show pretext, Hughes first recites a litany of theories regarding why Ambler became his supervisor, the complaints against him and the investigation of those complaints by Blockbuster. All of these allegations amount to nothing more than a subjective belief by Hughes that these events were motivated by retaliation, and do not create a material fact issue concerning pretext that would permit him to avoid summary judgment. Travis v. Board of Regents of the Univ. of Texas System, 122 F.3d 259, 266 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1998); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995), cert. denied, 516 U.S. 1047 (1996). Hughes also points to Ambler's attempts to get him to drop his EEOC charges as evidence of pretext, but admits that Ambler told him he should drop the charges because Ambler wanted to recommend him for eventual promotion into Ambler's job. Hughes offers no other evidence that is probative of Ambler's motivation. Therefore, this fact also does not raise a material fact issue regarding pretext.
Next, Hughes states that he has established pretext because the allegations of his subordinates against him do not constitute a legally cognizable sexual harassment claim according to his knowledge of applicable sexual harassment laws. Additionally, he is aware of only one unnamed Blockbuster employee who was terminated for sexual harassment and is unaware of any employees who were terminated for "inappropriate" conduct that did not rise to the level of sexual harassment. The Court finds that none of this evidence sufficiently raises a genuine issue of material fact regarding pretext. First, Hughes' testimony that his alleged conduct did not violate applicable laws is an inadmissible legal conclusion that will not permit him to survive summary judgment. See Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (testimony setting forth unsupported, conclusory allegations or conclusions of law insufficient to defeat a motion for summary judgment); Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (same). Second, Hughes' vague and conclusory testimony about an unidentified Blockbuster employee who was fired for sexual harassment is also insufficient and is not competent summary judgment evidence.
Finally, Hughes cites to numerous incidents involving other employees who had not filed charges of discrimination against Blockbuster but received (or did not receive) various disciplinary actions in response to their widely varying conduct, arguing that because these individuals were not fired, the "unequal discipline" he received is evidence of pretext for retaliation. As Blockbuster correctly asserts, Hughes must show that he is similarly situated to these people to succeed on this theory. Wallace v. Methodist Hosp. System, 271 F.3d 212, 221 (5th Cir. 2001), cert. denied, 535 U.S. 1078 (2002); Okoye, 245 F.3d at 514. As stated above with respect to Hughes' discrimination claims, the Fifth Circuit has consistently interpreted the similarly situated requirement to mean that the circumstances of the plaintiff and the comparator employees must be "nearly identical." Okoye, 245 F.3d at 514, citing Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991); Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990). Employees who have different supervisors and were engaged in different conduct or different violations of company policy would not be considered nearly identical to Hughes. Id.
Hughes' summary judgment evidence does not show whether the approximately twelve employees he identifies also reported to Ambler. Furthermore, Hughes' affidavit does establish that the conduct of these employees varied widely, and is not directly comparable to the complaints made against him. Therefore, the Court finds that Hughes has failed to raise a genuine issue of material fact regarding whether these employees were similarly situated but received more favorable treatment, while he received less favorable treatment due to retaliation. Because Hughes has failed to raise a genuine issue of material fact regarding pretext, Blockbuster is also entitled to summary judgment on Hughes' retaliation claim.
IV. Conclusion
For the reasons stated herein, there is no genuine issue of material fact present in the record with respect to any of Hughes' claims, and Blockbuster is entitled to judgment as a matter of law. Defendant Blockbuster, Inc.'s Motion for Summary Judgment is granted, and Hughes' claims are hereby dismissed with prejudice. Judgment will be entered by separate document.
SO ORDERED.