Opinion
Civil Action No. 6:02-CV-101-C
November 19, 2003
ORDER
On this day the Court considered Defendant, Cheddar's Inc. a/k/a Cheddar's Casual Cafe of San Angelo's Motion for Summary Judgment, filed September 15, 2003. Plaintiff, Earskin Jackson, filed a Response to Defendant's Motion on October 6, 2003. Defendant filed a Reply to Plaintiff's Response on October 21, 2003. After considering all relevant arguments and evidence, the Court GRANTS IN PART Defendant's Motion for Summary Judgment.
1. BACKGROUND
Plaintiff, Earskin Jackson ("Jackson" or "Plaintiff"), is an African-American who began employment with the Defendant, Cheddar's Inc. a/k/a Cheddar's Casual Cafe of San Angelo ("Cheddar's" or "Defendant"), as a cook in 1996 and early 1997. Cheddar's alleges that Jackson was terminated in January of 1997 for "leaving work without permission, using abusive language and refusing to obey orders when he refused to cook an order that came in late and cursed the manager." See Def. Br. p. 1. Jackson filed a charge of racial discrimination following the January 1997 termination, A "right to sue" letter was issued to Jackson by the EEOC, but apparently no lawsuit was ever brought.
In March of 2001, Cheddar's requested that Jackson come back to work for Cheddar's again as a cook. Jackson was offered higher pay than he was making at his then current employment in order to entice him to again work at Cheddar's. Jackson met with Cheddar's manager Rick Howard ("Howard"), who convinced Jackson to come back to work for Cheddar's.
Jackson alleges that almost immediately after coming back to work at Cheddar's, he began experiencing problems with co-workers. Plaintiff also alleges that he began hearing the word "nigger" on the first day he returned to work for Cheddar's. Jackson alleges that he informed manager Howard that problems would arise when he returned to work with employees who had been there longer but were making less money than he was making. Jackson alleges that the problems and complaints from his co-workers were racially motivated, He further alleges that he informed manager Howard of the alleged racially motivated incidents.
One alleged incident occurred approximately 45 days after Jackson began working and involved a co-worker named J.C., who had just begun training in the kitchen. Management wanted J.C. to help Jackson close the kitchen one night, but Jackson protested because J.C. was inexperienced. Allegedly, another co-worker named Martin got J.C. agitated by telling J.C., "That black bastard ain't your boss. He can't tell you what to do. Don't let him talk about you. He's talking about you." J.C. then allegedly got in Jackson's face and told him, "You black bastard, you don't tell me what to do. You're not my boss." Jackson pushed J.C. in response to J.C.'s pointing his finger in Jackson's face and using offensive language. Jackson complained to manager Howard, and J.C. admitted to calling Jackson a "black bastard" and apologized. Jackson also apologized for "putting [his] hands on [J.C.]."
Another alleged racially motivated incident occurred between a co-worker named Onrey, an African-American, and Paul, a Hispanic. Allegedly, Paul used the word "nigger," though not directed specifically at Onrey. Onrey, who was offended, threw mushrooms at Paul. Paul then picked up a steak knife and threw it at Onrey. Onrey then picked up a larger knife with two handles and slung it at Paul. The two then were about to begin fighting but were separated by Jackson, "another manager," and "another worker." Jackson's only involvement in the incident appears to have been to help separate the two.
Although not always directed at him specifically, Jackson alleges that the terms "nigger" or "black bastard" were used often. He alleges that the word "nigger" was used at least once a day. Jackson admits that he himself used the word "nigger" while at work but only when talking to other African-American employees. However, he states, "Like it's all right for me to say it to another one, another black man; but it's not okay for a [C]aucasian to say it the way they're saying it. I'm saying it to say hi."
Jackson alleges he called Cheddar's regional manager, Glenn Neuman ("Neuman"), on July 1, 2001, and complained about the alleged racism. Plaintiff further alleges he informed Neuman that he had not received a promised $1.00 per hour raise after his first 90 days of employment. Jackson claims that manager Howard retaliated against him for complaining to the regional manager by reducing Jackson's hours that he was allowed to work and ultimately terminating him
The alleged incident which led to Jackson's termination occurred on November 6, 2001, and involved a co-worker named Hector Ardilla ("Ardilla") and Jackson. Allegedly, Jackson had completed cooking an order of steaks, but the appetizers had not yet been completed by Ardilla. Jackson questioned Ardilla regarding why the appetizers had not already been completed and taken to the customer as was the common practice. Jackson alleges that Ardilla slapped him. Ardilla was allegedly holding a steak knife he was using in the food preparation and he said, "You come toward me you black bastard and I'll stick you." Steve Bobholtz, a manager on duty, allegedly witnessed the incident. Bobholtz called Ardilla into the office. Jackson claims he could see through the glass of the office and that he saw Bobholtz and Ardilla laughing. Ardilla then allegedly bragged to a co-worker in Jackson's presence that he had just slapped "that black bastard." Jackson confronted Ardrilla and told him, "Look here, I let you make it. I let you slap me and put your hands on me, Then you go around here and brag to this man about you just slapped that black bastard." Jackson was upset and told manager Bobholtz that he was going to leave. Bobholtz told Jackson he could leave. Jackson was never called to the office that day regarding the incident.
Jackson returned to work the next day without incident Ardilla was off that day. Jackson alleges that the manager on duty that day, Scott Squire, told him that neither Jackson nor Ardilla would be fired but that they were only going to be required to shake hands. On November 8, 2001, Jackson was told by the kitchen manager Jeff Nelson, "I need to talk to you." Jackson went to the atrium with Nelson and when he arrived he saw Ardilla sitting there with Scott Squire. Jackson was asked to sit down, but he refused and stated that he would not sit and talk to Ardilla, Nelson instructed Jackson that, "We have to come to some conclusion about the situation that happened." Jackson repeatedly stated that he was not going to bother Ardilla and that all Jackson wanted to do was to come to work and do his job and 30 home and that was the best he could do. Nelson informed Jackson that if he would not shake Ardilla's hand, he would be terminated and would have to leave. Jackson refused to shake Ardilla's hand. Defendant alleges Jackson was irate and cursing at Nelson. Jackson was then allegedly told that if he did not leave, they would call the police. Jackson said he would do "one better" and call the police for them. Plaintiff called the police himself evidently to report the alleged assault by Ardilla that occurred on November 6, 2001.
The ultimatum was apparently made to Ardilla also. See Jackson Depo. p. 196 ("If you don't shake Hector's [Ardilla's] hand or if Hector don't shake your hand — Whoever don't do the handshaking is terminated.").
See Jackson Depo. p. 198 ("I got angry after he fired me and told me — I told him — I said, `Jeff, look, you're going to fire me for not shaking his hand after what he did to me?' I said, `You've got to be fucking kidding me.' That's exactly what I told him").
On November 15, 2002, Plaintiff filed the present lawsuit alleging violations of Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1981; negligent hiring, training, retention, and supervision; assault; and intentional infliction of emotional distress.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FBD. R. Civ. P. 56(e); State Farm Life Ins. Co. v, Gutterman, 896 F.2d 116.118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor, Id.
III. DISCUSSION
Title VII and § 1981Title VII creates a private right of action against employers who engage in unlawful employment practices and provides as follows:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a) (2000).
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though the other factors also motivated the practice.Id. at e-2(m).
Section 1981, which was enacted to strengthen the scope of federal civil rights protection and to deter and protect against unlawful discrimination in employment settings, provides as follows:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other,
* * *
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981 (1994).
The elements of claims alleging violations of Title VII and § 1981 are identical. Flanagan v. Aaron E. Henry Cmty. Health Servs. Ctr., 876 F.2d 1231, 1233 (5th Cir. 1989). Employment discrimination claims brought under § 1981 are analyzed under the same evidentiary framework as Title VII claims. Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). Plaintiff contends that Defendant did not controvert civil rights violations under § 1981 in Defendant's Motion or Brief and therefore the § 1981 claims should survive summary judgment. The Court finds that Defendant need not repetitively assert entitlement to summary judgment on those claims because the analysis is the same for Plaintiff's Title VII and § 1981 claims. This Court will also conduct only one analysis of Plaintiff's claims.
A plaintiff may establish a violation of Title VII by using either direct evidence of discrimination, statistical proof, or circumstantial evidence. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Absent direct evidence of discrimination based on race, gender, or age, a plaintiff may establish unlawful discrimination under the basic framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, the order of progression for proving up a Title VII claim of discrimination is controlled by the following:
1. The plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination;
2. If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's termination;
3. Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.See Smith v, Wal-Mart Stores (No, 471), 891 F.2d 1177, 1178 (5th Cir. 1990) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). See also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000).
DISPARATE TREATMENT
Although not stated clearly in Plaintiff's Complaint or Response, it appears to the Court that Plaintiff wishes to raise a disparate treatment claim under Title VII and § 1981. Plaintiff often at times merges claims of discrimination in his treatment while employed and his termination, specifically disciplinary actions taken against him. The Court is not at all clear if Plaintiff wished to raise the termination issue as a retaliation matter or a disparate treatment matter. The Court will analyze both.
Plaintiff's Prima Facie Case
Jackson must first prove a prima facie case of discrimination under the McDonnell Douglas framework by proving that (1) he was a member of a protected group; (2) he was qualified for the position held; (3) he suffered an adverse employment action; and (4) non-members of the protected class were treated differently under circumstances nearly identical to his. Urbano, 138 P.3d at 206; Mayberry v, Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995); see also Byers, 209 F.3d at 426, Bauer v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (standing for the proposition that the fourth element may be tailored to the specific type of discrimination alleged).
(1) Member of Protected pro, up
Defendant does not dispute that Jackson is African-American. This Court finds that Jackson has satisfied the first prong of his prima facie case under Title VII and § 1981.
(2) Qualified for the Position Held
Plaintiff argues that he was qualified for the position held at the time he was terminated. The parties do not dispute that Jackson had been employed by Cheddar's as a cook on two separate occasions: He had first been employed by Defendant from 1996 until 1997 and later rehired by Defendant in 2001 and employed for approximately 8 months prior to being terminated Moreover, Cheddar's sought out Jackson for employment, thereby implying that he was qualified for the position. Jackson alludes to his total longevity, experience, and the fact that Defendant rehired him in 2001, after termination for subordination in 1997, as sufficient evidence to support his allegation that he was qualified for the position which he held at the time he was fired. Drawing all justifiable inferences in favor of Jackson as non-movant, this Court finds that Jackson has satisfied the second prong of his prima facie case under Title VII and § 1981.
(3) Discharged from the Position
The parties do not dispute that Plaintiff was terminated. Therefore, the third prong of the prima facie case has been satisfied under Title VII and § 1981.
(4) Replaced by Someone from Outside the Protected Group or Otherwise Discharged Because of Membership in Protected Class
Jackson has presented no competent evidence which shows that he was replaced by someone from outside the protected group. Although the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is the leading case for establishing a prima facie case, the Supreme Court has stressed that the McDonnell test was not intended to be a rigid or ritualistic test of disparate treatment. Thomas v. Exxon, U.S.A., 943 F. Supp. 751, 758 (S.D. Tex 1996), aff'd, 122 F.3d 1067 (5th Cir. 1997) (citing Carter v. City of Miami, 870 F.2d 578, 583 n. 12 (11th Cir. 1989)). Because discrimination exists "`in forms as myriad as the creative perverseness of human beings can provide,' certain specific elements do not constitute `the alpha and omega'" of a prima facie case. Id. (citing Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 642 (5th Cir. 1985)). Also, in a "mixed motive" case, Plaintiff must show that race was a motivating factor even though other factors also motivated the practice. 42 U.S.C. § 2000e-2(m) (emphasis added to stress race need only be one factor out of several; but it is not required to be the primary factor).
Plaintiff alleges that he was disciplined at times differently than others, including his termination; but Plaintiff has failed to produce competent summary judgment evidence to back up this conclusory allegation. Therefore, even when viewing the evidence in a light most favorable to Jackson as non-movant, this Court finds that Jackson has failed to satisfy the fourth prong of his prima facie case under Title VII and § 1981. Even if Plaintiff had succeeded in his prima facie case, as discussed below, he has failed to overcome Defendant's legitimate, nondiscriminatory reason.
Defendant's Legitimate, Nondiscriminatory Reason
Because the Court has determined that the first phase of the McDonnell Douglas evidentiary burden has not been satisfied, it need not proceed further. However, for the sake of thoroughness, the Court will also discuss the second and third phases in the McDonnell Douglas evidentiary burden-shifting methodology. Defendant must satisfy the second phase by offering a legitimate, nondiscriminatory reason for Jackson's termination. Defendant's "burden is one of production, not persuasion; it `can involve no credibility assessment,'" Reeves v. Sanderson, 530 U.S. 133, 142 (2000). Defendant offers that Jackson was terminated because of inability to get along with his co-workers and insubordination because he refused a superior's request to shake Ardilla's hand and resolve the situation. Defendant claims this is a legitimate, nondiscriminatory reason. This Court finds that Defendant has met its burden of production and has set forth a legitimate, nondiscriminatory reason for Plaintiff's termination. However, the question is "whether there exist material facts upon which a jury could conclude that Defendant's stated reason . . . is pretextual." Montgomery v. Brookshire, 880 F. Supp. 483, 486 (W.D. Tex. 1995).
Pretext
The burden then shifts to Jackson to satisfy the third phase of the McDonnell Douglas test and prove that Defendant's reasons were false. As stated by the United States Supreme Court in Reeves v. Sanderson, 530 U.S. 133, 148 (2000), Jackson must present " sufficient evidence to find that the employer's asserted justification is false," Crawford v. Formosa Plastics Corp., 234 F.3d 899, 903 (5th Cir. 2000) (emphasis in original). "A mere scintilla of evidence of pretext docs not create an issue of material feet in all cases." Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 301 (5th Or. 2000). "It is, therefore, possible for a plaintiff's evidence to permit a tenuous inference of pretext and yet be insufficient to support a reasonable inference of discrimination." Crawford, 234 F.3d at 903. Defendant may be entitled to judgment when "the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred." Vadie v. Mississippi State Univ., 218 F.3d 365, 372 (5th Cir. 2000) (quoting Reeves, 530 U.S. at 148).
However, "a plaintiff a 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." Reeves, 530 U.S. at 148. Moreover, "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation." Id. at 147. "[A]ny evidence that could shed light on an employer's true motive must be considered." See Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir. 2000) (quoting Reeves, 530 U.S. at 152). Additionally, as stated previously, in a "mixed motive" case, Plaintiff may also show that Defendant's proffered reason for the adverse action was conjunctive with proven illegitimate criterion. See Desert Palace, Inc. v. Costa, 539 U.S. ___, 123 S.Ct. 2148 (2003) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
To show that co-employees from a non-protected class were not disciplined for actions as was Plaintiff, he must show that non-African-American employees were treated differently under circumstances "nearly identical to his." Mayberry, 55 F.3d at 1090. Jackson may use direct or circumstantial evidence to make his prima facie case of disparate treatment. As is often the situation in these types of cases, Jackson has no direct evidence. So the Court turns to his circumstantial evidence. The Court finds the strength of Jackson's circumstantial evidence JS not enough to create an inference of disparate treatment. The Court further finds that Jackson has presented no evidence that other co-workers were treated differently under "nearly identical circumstances" to his. Jackson had a checkered work history with Defendant and had received several disciplinary reports relating to leaving without management approval, poor attitude, and tardiness. Although Jackson had complained of racial animosity and discrimination, the Court finds that Jackson failed to present sufficient evidence from which a reasonable jury could infer he "prove[d] by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons." Plaintiff's subjective belief that he was disciplined differently or discharged because of his race is simply insufficient to establish a discrimination claim. The Court has carefully considered Plaintiff's deposition testimony and the affidavit of Al Powell. The deposition testimony, as well as the affidavit, are in large part speculative, conclusory, and in some instances based on hearsay. The remaining facts are insufficient to raise a genuine issue of material feet. The Court finds that Defendant's legitimate, nondiscriminatory reason for Plaintiff's termination — that Jackson was terminated for insubordination when he refused a superior's request to shake Ardilla's hand and resolve the situation — has not been overcome by Plaintiff. The Court further finds that Plaintiff has failed to prove by a preponderance of the evidence that the "employer's asserted justification is false" or that discrimination was a motivating factor in Plaintiff's treatment. Thus, the Court GRANTS summary judgment as to Jackson's disparate treatment claims under Title VII and § 1981.
RETALIATION
Although not clear to the Court from the Complaint or Plaintiff's Response, it appears that Plaintiff also wishes to bring a retaliation cause of action distinct from his disparate treatment cause of action. To establish a prima facie case of retaliation under Title VTI, a plaintiff must demonstrate (1) that he is engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Fierros v. Tex. Dept of Health, 274 F.3d 187, 191 (5th Cir. 2001). The court is only to be concerned with ultimate employment decisions. Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000), To establish the third element, a plaintiff must show that but for engaging in a protected activity, he would not have been subjected to the action of which he claims. Mayberry v. Vought Aircraft Co., 55 P.3d 1086, 1092 (5th Cir. 1995).
Just as in a Title VII discrimination claim, if Plaintiff establishes a prima facie case of retaliation, the Defendant must rebut the prescription of discrimination by articulating a legitimate., non-discriminatory reason for the adverse employment action. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). Once the Defendant satisfies this burden of production, Plaintiff must adduce specific evidence that would permit a reasonable trier of fact to find that the proffered reason for terminating his employment is a pretext for retaliation. Id.; EEOC v. J. M. Huber Corp., 921 F.2d 1322, 1326 (5th Cir. 1991).
The Court finds that Plaintiff has felled to establish a prima facie case of retaliation. Although Plaintiff's internal grievances arc protected activities., thereby meeting the first element of his prima facie case for retaliation, and the termination of Plaintiff's employment is certainly an adverse employment action, thereby meeting the second element for a retaliation claim, there is a dearth of evidence establishing a causal connection between his internal grievances and his termination. Even if Plaintiff could have established optima facie case, however, summary judgment is nevertheless warranted as Plaintiff has failed to show that the Defendant's reasons were pretextual in nature and that the true reason for terminating Plaintiff's employment was due to his filing internal grievances. This Court finds that Defendant has met its burden of showing a legitimate, non-discriminatory reason for terminating Plaintiff. Therefore, the burden of production now shifts back to Plaintiff and "the focus shifts to the ultimate question of whether [Defendant] unlawfully retaliated against [Plaintiff]." Long v. Eastfield College, 88 F.3d 300, 305 (5th Cir. 1996). In answering this question, the Fifth Circuit applies the following standard:
The ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a "but for" cause of the adverse employment decision. In other words, even if a plaintiff's protected conduct is a substantial element in the defendant's decision to terminate an employee, no liability for unlawful retaliation arises if the employee would have been terminated even in the absence of the protected conduct.Long, 88 F.3d at 305 n. 4. Plaintiff must therefore introduce evidence that would permit a reasonable trier of fact to infer retaliation.
As explained above. Plaintiff alleges that the reason, for his termination was that he had previously complained and submitted grievances regarding the allegedly discriminatory treatment. However, Defendant counters that termination occurred because of insubordination in that Jackson refused the request of a superior to shake Ardilla's hand and resolve the hostilities. The only evidence before the Court to infer a causal connection between Plaintiff's complaints and grievances and his termination is his personal belief as to why he lost his job. As stated above, Plaintiff's subjective belief that he was discharged because of his race is simply insufficient to establish a discrimination claim. Plaintiff's evidence is in large part speculative, conclusory. and in some instances based on hearsay. The remaining facts are insufficient to raise a genuine issue of material fact. Although Plaintiff brings to the Court's attention another individual who believes that Defendant retaliated against him, such does not establish a casual connection between Plaintiff's internal grievances and the adverse employment action taken by the Defendant. Without anything further, this Court finds that there is no genuine issue of material fact as to whether Defendant's reasons for terminating Plaintiff were pretextual in nature. The Court further finds that Plaintiff has not satisfied his burden of production, which requires him to "designate specific facts in the record showing that there is a genuine need for trial." Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311-12 (5th Cir. 1999). As a result, summary judgment should be GRANTED with regard to Plaintiff's claims of illegal retaliation in his termination .
However, Plaintiff also alleges that his hours were reduced following the July 1, 2001 complaint to Regional Manager Neuman. Defendant contends that Jackson's hours fluctuated baaed on different factors and that the drop in hours for the pay period immediately following his complaint to Neuman can be explained as a normal fluctuation. Defendant proffers evidence that Jackson's hours remained high in several pay periods following the complaint. However, the pay records do show a noticeable drop in Plaintiff's hours for the pay period including the week following the complaint to Regional Manager Neuman. Additionally, Plaintiff's deposition offers some evidence that his hours were cut because manager Rick Howard was allegedly "pissed" at Plaintiff. Thus, the Court finds that Plaintiff has presented a "prima facie case, combined with sufficient evidence to find that the employer's asserted justification is fake," thereby "permit[ting] the trier of fact to conclude that the employer unlawfully discriminated," Reeves, 530 U.S. at 148. The Court further finds Plaintiff has created a genuine issue of material fact as to why Jackson's hours uncharacteristically dropped for that pay period. Therefore, summary judgment is DENIED as to Plaintiff's claims for retaliation by Defendant in reducing Plaintiff's hours following the report of an allegedly racially hostile work environment.
HOSTILE ENVIRONMENT
Plaintiff alleges that the overall working environment was hostile and filled with racial animosity. These claims fall under Title VII and § 1981. In a hostile work environment claim, Plaintiff must establish that (1) he belongs to a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected class status; (4) the harassment affected a term, condition, or privilege of his employment; and (5) Defendant knew or should have known of the harassment and failed to take remedial action. Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996). The parties do not dispute that Plaintiff is a member of a protected class, i.e., African-American; but Defendant disputes the remaining elements of Plaintiff's claim.
"A hostile work environment requires the presence of a work environment that a reasonable person would find hostile or abusive." Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 523 (5th Cir. 2001). Whether an environment is hostile or abusive depends on the totality of circumstances, focusing on factors such as "the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance." Id. at 523-24.
The United States Supreme Court has concluded that when the harassment does not affect a term, condition, or privilege of employment, or when the plaintiff has been unable to show financial harm, the harassment must be "severe or pervasive" in order to violate Title VII. Mentor Sav. Bank v. Vinson, 477 U.S.57, 67 (1986). The Fifth Circuit has held that "[d]iscriminatory verbal intimidation., ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII." Mota, 261 F.3d at 524. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (finding that inquiries, which were often egregious and regularly made in the presence of co-workers, about plaintiff's sexual activities and other sexual comments two or three times a week crossed the line and were sufficiently severe and pervasive to be actionable). See also Wetter v. Citation Oil Gas Corp. 84 F.3d 191, 194 (5th Cir. 1996) (holding that Title VII was meant to bar severe and pervasive conduct that destroys a protected classmember's opportunity to succeed at work).
This Court is persuaded that Plaintiff has presented evidence of unwanted, repeated, racially charged comments which a jury might find humiliating and degrading, particularly in light of the totality of the circumstances, including Plaintiff's race and the facts of the case. Plaintiff has also presented sufficient evidence that he was subjected to unwelcome harassment; the harassment was based on his protected class status; the harassment affected a term, condition, or privilege of his employment; and Defendant knew or should have known of the harassment and failed to take remedial action. Plaintiff alleges that racial slurs occurred on a daily basis. Under these circumstances, this Court finds that a jury could rationally infer that the conduct of Defendant was sufficiently severe or pervasive so as to alter the conditions of employment and create a hostile work environment. The Court also finds that when viewed in a light most favorable to the non-movant, sufficient evidence was presented to show that Defendant knew or should have known about the harassment and failed to remedy the situation. Plaintiff contends he informed various managers on multiple occasions regarding the racial slurs and comments made in the workplace. Consequently, this Court finds that Plaintiff has raised a genuine issue of fact as to whether Defendant created or tolerated a hostile or abusive environment and whether Defendant failed to exercise reasonable care to prevent and promptly correct the alleged harassment of Plaintiff Summary judgment is therefore DENIED as to Plaintiff's claims for hostile work environment:, STATE LAW CLAIMS Negligent Hiring, Retention. Training. and Supervision
"Texas law allows recovery for negligent hiring and supervision in cases where the employer's direct negligence in hiring or retaining an incompetent employee whom the employer knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others." Garcia v. Hospice of El Paso, 2003 WL 21961177 at *5 (W.D. Tex. 2003) (citing Wise v. Complete Staffing Services, Inc., 56 S.W.3d 900, 902 (Tex.App.-Texarkana 2001, no pet.)). Texas has long recognized an employer's duty to make inquiry into the competence and qualifications of those considered for employment, and an employer may be guilty for negligently hiring an incompetent employee and thus be held liable for damages. Arrington v. Fields, 578 S.W.2d 173, 179 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.c.). This duty includes supervision, hiring, and retention/termination. Garcia v. Allen, 28 S.W.3d 587, 592 (Tex.App.-Corpus Christi, 2000, pet. denied).
A. Hiring
A plaintiff cannot recover for the tort of negligent hiring absent some evidence that the defendant did not act with reasonable care in hiring. See Sibley v. Kaiser Found., 998 S.W.2d 399, 404 (Tex.App.-Texarkana 1999, no writ). "It would be a harsh rule indeed if an employer were held liable for any criminal act committed by an employee against a . . . fellow employee of the employer." Doe v. Boys Clubs of Greater Dallas, 868 S.W.2d 942, 950 (Tex.App.-Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex. 1995). Arguing generally that summary judgment evidence illustrates that a defendant did not act with' reasonable care in investigating an employee is insufficient; the record must support such an argument. Id. The Court finds that Plaintiff has presented no summary judgment evidence that Defendant felled to act with "reasonable care" in hiring its employees. Thus, summary judgment is GRANTED as to Plaintiff's claim for negligent hiring.
B. Retention
Jackson alleges that Cheddar's is liable for the negligent retention, training, and supervision of "racist employees." Negligent retention can be shown by proving that the employer was aware or should have been aware of an employee's incompetence and yet continued to retain the employee, creating an unreasonable risk of harm to others. Leake v. Half Price Books, Records, Magazines, Inc., 918 S.W.2d 559, 563 (Tex App.Dallas 1996, no writ). To recover for negligent retention, the plaintiff's injury must be the result of the master's continued employment of an unfit employee. Id. at 563. Jackson alleges that he reported the racial hostilities of his co-workers to Defendant's management on multiple occasions. "A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, . . . if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Robertson v. Church of God, Int'l, 978 S.W.2d 120, 125 (Tex.App.-Tyler 1997) (citing Tex.R.Civ.P. 166a). The Court finds that a genuine issue of fact has been raised as to whether Defendant was aware of the acts of Jackson's co-workers and yet continued to employ them without remedying the situation. Deposition testimony also exists that assaultive behavior may have occurred earlier in the workplace and that Defendant was aware of such. The Court further finds that a reasonable jury could conclude that, by retaining said co-workers, an assault might arise between employees — the retention of allegedly racist workers being the proximate cause of a racially motivated incident. Thus, Plaintiff has raised a genuine material issue effect, and summary judgment is not proper on Plaintiff's claim of negligent retention. Therefore, summary judgment is DENIED as to Plaintiff's claims for negligent retention.
C. Training and Supervision
A plaintiff may recover for negligent training or supervision if he can prove that the employer did not adequately train or supervise its employees and the negligence proximately caused the injuries to the plaintiff. Portlock v. Perry, 852 S.VV.2d 578, 583 (Tex.App.-Dallas 1993, writ denied). The foreseeability component of proximate cause requires that a person of ordinary intelligence should have anticipated the injury. See Doe, 907 S.W.2d 472 (Tex. 1995)). The elements of proximate cause "cannot be established by mere conjecture, guess, or speculation." Id. at 477.
The Court finds that Plaintiff presented no summary judgment evidence establishing that Defendant failed to train or supervise its employees. Allegations and conclusions will not survive summary judgment. As such, Defendant's Motion for Summary Judgment on Plaintiff's claims for negligent training and supervision is GRANTED.
Assault
Plaintiff states: "ft is clear that Plaintiff Jackson was assaulted by his co-worker (Mr. Hector Ardila) on November 6, 2001." Defendant claims that it should not be held responsible for Ardilla's actions because Ardilla. was not acting within the course and scope of his employment. However, Plaintiff contends that Ardilla was on the clock and working in Defendant's kitchen at the time of tie incident. Plaintiff alleges that the assault was "ratified and condoned" by Defendant and thus Defendant is liable for Ardilla's actions. Plaintiff alleges that the conduct was condoned and ratified because manager Bobholtz was seen laughing in his office. However, Plaintiff has not presented evidence that would controvert Defendant's contention that Ardilla was in fact reprimanded. Moreover, in Defendant's Reply, a copy of a disciplinary warning against Ardilla regarding the incident was included in the Supplemental Appendix. The warning is direct evidence that the conduct was not condoned The Court finds that Plaintiff has not raised a genuine issue of material fact as to whether the assault was ratified or condoned by Defendant.
In Texas, the law states that "[i]t is not ordinarily within the scope of a servant's authority to commit an assault on a third person. . . . Usually assault is the expression of personal animosity and is not for the purpose of carrying out the master's business." See Peek v. Equipment Servs., Inc., 906 S.W.2d 529 (Tex.App.-San Antonio 1995, no writ) (quoting Texas Pac. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 239 (Tex. 1952)). The Court finds that there was no relationship between the assaultive acts of Ardilla and his job duties such as would give rise to liability on the part of Defendant, see Mackey v, U.P. Enterprises, Inc., 935 S.W.2d 446, 454 (Tex.App.-Tyler 1996, no writ), and thus summary judgment is GRANTED against Plaintiff's assault cause of action. "As a matter of law, the assault upon [Jackson] was not in furtherance of [Cheddar's] business." Dieter v. Baker Serv. Toots, 739 S.W.2d 405, 407 (Tex.App.-Corpus Christi 1987, writ denied).
Intentional Infliction of Emotional Distress
A claim for intentional infliction of emotional distress requires Jackson to prove the following elements: (1) that Defendant acted intentionally or recklessly; (2) that Defendant's conduct was extreme and outrageous; (3) that Defendant's actions caused Jackson's emotional distress; and (4) that Jackson's re suiting emotional distress was severe. Standard Fruit Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1988). A claim for intentional infliction of emotional distress is available only in those instances in which severe emotional distress is the intended or primary consequence of Defendant's conduct. Id. at 67 "Insults, indignities, threats, annoyances, or petty oppressions, without more, do not rise to the level of intentional infliction of emotional distress." Walker v. Thompson, 214 F.3d (515, 628 (5th Cir. 2000). Conduct that is illegal in the context of employment does not necessarily constitute extreme and outrageous conduct, nor does condemnable conduct. Id.
For Defendant's conduct to be sufficiently extreme and outrageous, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Insensitive or even rude behavior does not constitute extreme and outrageous conduct. Id at 699.
Plaintiff has offered no evidence that Defendant acted intentionally or recklessly with the intended primary consequence being Plaintiff's emotional distress. Nor has Plaintiff shown that any of Defendant's conduct was outrageous in character, extreme in degree, or in any other manner atrocious or utterly intolerable. Further, Plaintiff has offered nothing to substantiate that emotional distress was actually suffered by Plaintiff or that such distress was severe. Consequently, this Court finds mat Plaintiff's arguments do not support a claim of intentional infliction of emotional distress and summary judgment is therefore GRANTED as to Plaintiff's claims for intentional infliction of emotional distress.
IV. CONCLUSION
For the reasons previously discussed, Defendant's Motion for Summary Judgment is GRANTED IN PART. All relief not expressly granted is DENIED.