Opinion
Action No. 4:02-CV-1043-Y.
March 16, 2005
ORDER PARTIALLY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is defendant Federal Express Corporation ("Federal Express")'s Motion For Summary Judgment, filed July 30, 2004. Having carefully considered the motion and the response, the Court concludes that the motion should be PARTIALLY GRANTED.
I. RELEVANT BACKGROUND
In analyzing the defendant's motion for summary judgment, the Court is required to view the facts in the light most favorable to the plaintiff. See Lavespere v. Niagra Mach. Tool Works, infra. The following recitation of facts is written accordingly.
Pro-se plaintiff Weldon Ray Johnson was hired in 1997 by Federal Express as a part-time checker/sorter at its newly built facility at Alliance Airport in Fort Worth, Texas. Anthony Rodriguez became Johnson's supervisor on February 15, 2000. On February 19, Johnson complained to Rodriguez that someone had written the word "niggers" on the wall in one of the stalls in the men's restroom. (Def.'s App. at 19-20.) Rodriguez told Johnson that he would have maintenance take care of it. (Def.'s App. at 22.) Also, on February 19, Rodriguez performed a secret "service check" on Johnson's performance. During a service check, a supervisor views the employee's performance to see how many packages per hour the employee can sort. Plaintiff's average check rate was 231 packages per hour, which was below the expected average check rate of 350. ( See Def.'s App. at 55.) Johnson felt that the service check was unfair because Rodriguez conducted it secretly and did not take in consideration that Johnson suffered a logjam of packages during the time he was being checked. (Def.'s App. at 12-14.) Johnson notified Senior Manager Attila Kocsardy that he believed the February 19 service check was unfair. (Def.'s App. at 15-17.)
According to Federal Express, "[c]hecker/sorter is an important position for Fed Ex, because if the checker/sorter position does not perform his or her job functions properly, packages will be routed incorrectly and will not be timely delivered to the correct address." (Def.'s Br. at 2.)
At Kocsardy's suggestion, Johnson performed a service check on himself several days later. Johnson scored an average check rate of 576 packages per hour, which was well above satisfactory. (Def.'s App. at 56.) As a result of Johnson's improved performance, Rodriguez awarded Johnson a "Bravo Zulu" award, noting that Johnson had an excellent, outstanding attitude. In addition to the award, Johnson received a check for $25. (Def.'s App. at 57.)
Specifically, in a memo dated February 22, Rodriguez stated:
I cannot begin to thank you enough for your outstanding attitude and dedication. Day in and day out, you set the example for others to follow. Over the last week your performance has dramatically improved by achieving a goal of 350 packages per hour. I feel that your dedication and your commitment to our operation will only continue to improve.
Every day you are faced with operational challenges and each day you rise to the occasion. Because of your work ethics you have shown that you have only just begun to rise to the top.
As a token of our my [sic] appreciation, please accept this Bravo Zulu for a job well done. Keep up the good work!!!!!
(Def.'s App. at 57.)
On March 2, Johnson met with Gwen Wolfe, Federal Express's personnel representative. He complained that the graffiti was still on the wall in the restroom and he wanted to see if the February 19 service check was still in his file. (Def.'s App. at 25-27.) Wolfe had the graffiti removed from the bathroom wall. In addition, Wolfe checked her records and informed Johnson that she thought the February 19 service check had been taken out of Johnson's record. (Def.'s App. at 27.) One week later, however, Johnson spoke with Randy Siepler, a personnel representative at Federal Express, and was told that the February 19 service check was back in Johnson's record because Kocsardy wanted it to stay in. (Def.'s App. at 27.)
On March 23, Rodriguez performed another service check on Johnson and the other employees in the work group. (Def.'s App. at 32.) Thereafter, on March 25, Rodriguez informed Johnson that his check rate score was 213 packages per hour, which was below satisfactory. (Def.'s App. at 30.) Johnson felt that Rodriguez was not performing the service checks correctly. (Def.'s App. at 30-34.) Johnson told Rodriguez that he would not sign the service check. In addition, Johnson told Rodriguez, "Just remember, I tried to be fair" and "I mentioned this to you earlier [on February 19] but you did not hear me out." (Def.'s App. at 36.) Although Johnson denies it, Rodriguez claims that Johnson actually stated "Just remember, I've tried to be fair to you but now I am warning you." (Def.'s App. at 60.) Johnson, while speaking to Rodriguez, moved his hand to within 8 to 10 inches of Rodriguez's left shoulder. (Def.'s App. at 37.) Rodriguez, in response, asked, "Are you threatening me?" (Def.'s App. at 38.)
Johnson claims that he was "was going to pat him on the right shoulder as a gesture of `I know you are a first-time manager, I`ve tried to be patient with you. I am — and just — just remember I tried to be fair, but now I'm going to have to file a complaint against you.'" (Def.'s App. at 37.)
Thereafter, Rodriguez asked Johnson to write a statement regarding their confrontation. (Def.'s App. at 39.) Johnson informed Darwin Ellis, a senior manager at Federal Express, that he would submit a statement to the "Personnel Dep[artment] and/or others." (Def.'s App. at 40, 59.) Later, in a meeting with Ellis, Kocsardy, and one of Federal Express's security officers, Johnson was asked if, during the confrontation with Rodriguez, Johnson had said that he was "warning" Rodriguez. Johnson denied having said this. (Def.'s App. at 40.) Thereafter, Johnson was suspended with pay pending an investigation. (Def.'s Ap. at 41.)
Johnson stated that he was planning on filing an "equal opportunity complaint" against Rodriguez. (Def.'s App. at 39-40.)
On March 30, Rodriguez completed a workplace-violence incident report in the Federal Express computer system. (Def.'s App. at 64-67.) In the report, Rodriguez indicated that he had been verbally threatened by Weldon. Rodriguez also wrote two different undated personal statements about the incident. The first statement stated:
Specifically, Rodriguez wrote:
On 3/25/00 I was discussing a service check I had performed on Weldon, after refusing to sign the service check Weldon stopped me and stated that he was trying to be fair with me but that he was warning me. I asked him to clarify the statement warning me and he stated that he mentioned this before in a previous discussion but I did not hear him out.
(Def.'s App. at 66.)
On 3/25/00 at approximately 9:30 a.m. I was going around presenting my service checks to my employee's [sic]. I had just presented service checks to Jorge Santoyo and Jesse Huffman. Upon presenting Weldon Johnson his service check and advising it was substandard Weldon Johnson refused to sign off on the service check, but requested a copy of the service check as his "right as a United States Citizen."
I discussed further with Weldon the fact that his performance is below satisfactory level most of the time. Weldon inquired whether this service check would go in his file[.] I replied that it would not and that I would be preparing another file. Twice I questioned Weldon as to why he wanted a copy of the service check he did not sign; however, he could not supply me with an answer. At that point I wrote on the both of the service check[s] that Weldon refused to sign off. As I walked away Weldon stopped me and made the statement that he was trying to be fair and that he was "Warning Me." When I questioned the meaning of his statement warning me he claimed that he had mentioned this to me before in a previous discussion but I did not hear him out. I then proceeded to explain to Weldon that his comments were threatening and where [sic] in violation of the Acceptable Conduct policy p2-5. I told him the conversation was over and I proceeded to confirm with Mgr Kraig Robertson if his statement was indeed a violation. Kraig agreed and advised me to have Weldon write a statement. I then informed my senior mgr Attila Kocsardy.
(Pl.'s App. at 67.) In the second undated statement, Rodriguez added a third paragraph that stated:
In talking with Weldon his tone and body language was very disturbing to me. The manner in which he stated the words, "Warning You" made me feel very uncomfortable because of his tone. The tone of his voice was one of anger and desperation almost to the point where he was telling me in around about way to watch my back at all times. Weldon has always isolated and separated himself from the group[. H]e never interacts in any of the group meetings. This is also why those words made me feel uncomfortable and uneasy.
(Pl.'s App. at 68.)
During the ensuing investigation, Kocsardy took a statement from an employee, Omar Wattari, who had witnessed part of the incident between Johnson and Rodriguez. In addition, as part of the investigation, Johnson met with two representatives from Federal Express's security department on March 30. (Def.'s App. at 62.) Johnson, however, refused to cooperate or answer their questions as he thought they were harassing him, and he repeatedly asked to be read his Miranda rights. (Def.'s App. at 44-45.)
In his statement, Wattari stated:
Upon arrival to my secondary, my manager instructed me to contact Tony, the manager secondary 11 and secondary 12, in order to provide "tug" assistance at secondary 11 for the day. When I reached the sort area in question, Tony [Rodriguez] was on secondary 12 (north end) engaged in a conversation with, presumably, one of his employees. Tony politely acknowledged my presence and asked me to wait until his conversation with the employee was over.
At this point, my proximity was very close. The employee in question was clearly displeased, apparently in relation to his performance review. He was refusing to sign the document in question. Tony was attempting to politely explain the matter to him. I felt that my proximity was too close after probably one minute and stood further away (it was not an issue that concerned me and so I gave them their "space").
The matter was clearly taking some time so I moved to secondary 11 and contacted the team leader to let him know of my presence in order to start being productive. By this time Tony had moved to secondary 11 whereupon the employee he had been speaking with followed him and the conversation continued. The employee was obviously unhappy and was refusing to close the matter. . . .
(Def.'s App. at 63.)
On March 31, apparently in response to a request from Johnson, Elaine Swank, an employee of Federal Express at one of its Indiana locations, sent Johnson a document that Johnson claims was an internal Equal Employment Opportunity Commission ("EEOC") complaint form. (Def.'s App. at 70-72.) On April 4, Norma Myers, a senior manager for Federal Express, sent an email at 9:49 a.m. to Siepler, Shirley Harris, Rodriguez, and Kocsardy regarding Johnson that stated:
Attila Kocsardy is the senior manager of the employee; however, he is on vacation and has suggested I follow up with the above-named employee. I would like to schedule a conference call with the three of you today, 04/04/00 at 1530 (3:30 pm)[.] This conference call is to aid in the disposition of the employee's case.
(Pl.'s App. at 76.) At 2:07 p.m. on April 4, Myers sent an email to "MCD" and David Taylor" stating, "fyi, we will hopefully get the green light to proceed with termination." (Pl.'s App. at 78.) Later, at 4:35 on April 4, Norma Myers sent an email to Kocsardy and "MCD" that stated:
It is unclear from the record who "MCD" refers to.
Had conference call today with David Taylor, Shirley Harris, Randy Siepler, and Tony Rodriguez. Basically, conclusion was (1) there was no previous documentation on Weldon's behavior, and (2) All performance reviews were the high 6's, with no documentation on his previous behavior, (3) He basically has a clean file. Therefore, it was decided to give the employee a Warning Letter, documenting future behavior could result in further disciplinary action, up to and including termination.
I'll work with Tony on the Letter.
Tony learned a valuable lesson — document, document, document. Weldon has been through quite a few managers here at AFW, I think he's been here since Day One. However, no one thought enough to document his behavior.
(Pl.'s App. at 58 (emphasis added).) At some point, Myers sent another email to Michael Dimaria and Kocsardy that stated:
Mike, talked to Sr. Personnel Rep, Don Lee today. He indicated before we terminate that the following info. needs to be fax'd to Bennie Williams and Randy Siepler (whether to issue Warning Letter or Termination:
1. Recommendation from David Taylor, Security
2. "Acting senior, Me
3. "you, Director
4. Statement from Tony on "whether or not he felt employee's comment was intimidating."
This thing seems to be going back and forth.
(Pl.'s App. at 83.)
On April 5, Don Lee sent Johnson a fax that consisted of 10 pages. Johnson claims that Lee faxed Johnson an internal EEOC complaint form. (Def.'s App. at 74.) On April 6, Johnson mailed his internal EEOC complaint form to Randy Siepler, who is employed by Federal Express in Indiana. (Pl.'s App. at 73; see also Pl.'s App. at 112-37.) On April 7, Myers apparently faxed her recommendation that Johnson be terminated to Williams and Siepler. (Pl.'s App. at 84, 85, 88, 89.)
On April 7, Rodriguez sent Johnson a letter informing Johnson that he had been terminated. (Def.'s App. at 60.) Federal Express allegedly received Johnson's internal EEOC complaint on April 11. (Pl.'s App. at 93.) In the internal EEOC complaint, Johnson indicated that he felt that he was being discriminated against based on his race, color, and age, and that he was being harassed and retaliated against. (Pl.'s App. at 112; see also Pl.'s App. at 113-136.) Johnson received his termination letter on April 14. (Def.'s App. at 47.) On January 16, 2001, Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Thereafter, on September 28, 2002, Johnson received a notice from the EEOC of his right to sue. On December 26, Johnson filed suit in this Court. He alleged claims against Federal Express for racial discrimination, racial harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII").
In the letter, Rodriguez stated:
On 3/25/00 you made the statement, "I've tried to be fair to you but now I am warning you." I asked you to clarify the statement, "Warning You" and you stated that you had mentioned this before in a previous discussion but I did not hear you out. I perceived your comment as a threat, which violated Policy 2-5. Secondly you have had historical problems with acceptance of service checks and refusing to sign them off. Last being uncooperative with management when trying to find out your version of the story.
(Def.'s App. at 60.)
In the charge of discrimination, Johnson indicated that his "cause of discrimination" was based upon retaliation. He further stated:
PERSONAL HARM:
I was suspended and discharged.
RESPONDENT'S REASON FOR ADVERSE ACTION:
I was informed that I was suspended and discharged for allegedly threatening a supervisor.
DISCRIMINATION STATEMENT:
I believe I was discharged in retaliation for opposing practices unlawful under Title VII of the Civil Rights Act of 1964, as amended.
(Def.'s App. at 61.)
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper when the record establishes "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." FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by its own evidence set forth specific facts showing there is a genuine issue for trial. See Arbaugh v. YH Corp., 380 F.3d 219, 222 (5th Cir. 2004) (citing Celotex, 477 U.S. 317, 324 (1986)); see also FED. R. CIV. P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
A. Discrimination Based On Race Under Title VIITitle VII makes it unlawful for an employer to discriminate against an employee on the basis of that employee's race or gender. See 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). Racial-discrimination claims based upon circumstantial evidence, such as this one, are evaluated under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. 2003); Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997). Under the McDonnell-Douglas framework, the plaintiff must first establish a prima-facie case of discrimination. See Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000). If the plaintiff establishes a prima-facie case, then a presumption of discrimination arises and the burden shifts to the defendant to articulate — but not prove — a legitimate nondiscriminatory reason for the adverse employment action. See McDonnell Douglas Corp., 411 U.S. at 802; Evans, 246 F.3d at 350. If the defendant meets its burden of production, then the presumption of intentional discrimination is rebutted and the burden shifts back to the plaintiff to show that the reason proffered by the defendant is merely a pretext for racial discrimination. See McDonnell Douglas Corp., 411 U.S. at 802; see also Evans, 246 F.3d at 350.
"It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Plaintiffs may show pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256-57.
As the Supreme Court acknowledged in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false" may be sufficient to infer discrimination. Reeves, 530 U.S. at 148. The Supreme Court has also made it clear, however, that "instances [exist] where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Id.
Based on the foregoing, the first issue is whether Johnson has established a prima-facie case of racial discrimination. A prima-facie case of racial discrimination based on termination consists of four elements: (1) the employee is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by an individual of a different race or otherwise discharged because of his race. See, e.g., Shackelford, 190 F.3d at 404; Kirk v. Consol. Freightways Corp. of Delaware, No. 3:96-CV-1024G, 1997 WL 289056, at *3 (N.D. Tex. May 21, 1997). See also McDonnell Douglas Corp., 411 U.S. at 802; Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). In this case, there is no dispute that Johnson was a member of a protected class, that he was qualified for his position as a sorter/checker, or that he suffered an adverse employment action when his employment with Federal Express was terminated. However, Johnson has failed to come forth with any evidence indicating that he was replaced by an individual of a difference race or that he was otherwise discharged because of his race. There is absolutely no evidence of who replaced Johnson once he was terminated. In addition, the evidence indicates that Johnson was terminated because Rodriguez believed that he had been threatened in the workplace and not because of his race. Johnson, failing as he has to establish a prima-facie case of racial discrimination, has entitled Federal Express to summary judgment on this claim.
Federal Express also argued that Johnson's racial-discrimination claim was not properly before the Court because Johnson did not allege racial discrimination in the charge he filed with the EEOC. Because the Court concludes that Federal Express is entitled to summary judgment regardless of whether the racial-discrimination claim is properly before the Court, the Court will not address this issue.
Although it is not clear whether Johnson actually alleged racial harassment in his complaint, the Court will, nevertheless, address this issue.
To establish a prima-facie case of racial harassment by a supervisor with immediate or successively higher authority over the employee, the plaintiff must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on race; and (4) the harassment affected a term, condition, or privilege of employment. See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). "For harassment to affect a `term, condition or privilege of employment,' it must be `sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.'" Celestine, 266 F.3d at 353 (quoting Watts, 170 F.3d at 509)). Such a determination can be made only after reviewing all of the relevant circumstances, such as "the frequency of the conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with plaintiff's work performance." Nash v. Electrospace Sys. Inc., 9 F.3d 401, 404 (5th Cir. 1993) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)).
Johnson appears to claim that he was subject to racial harassment when: (1) he discovered the word "Niggers" written on the bathroom wall and it was not immediately removed; (2) Rodriguez subjected him to unfair and secret service checks on several occasions; (3) he was suspended pending an investigation into his conduct, and (4) he was terminated. After reviewing all of the allegations made by Johnson, the Court concludes that these incidents simply do not rise to the level of affecting a term, condition, or privilege of his employment. See Celestine, 266 F.3d at 354 (finding that eight incidents over a two-year period insufficient to support a racial harassment claim; DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594-96 (5th Cir. 1995) (finding that four printed derogatory references in two-and-a-half years did not evince sufficient hostility as a matter of law). To begin with, the few harassing events that Johnson complained about all occurred in the last six or seven weeks of his employment. Furthermore, besides the discovery of the clearly inappropriate word in the bathroom, which Johnson testified that he totally forgot about after he reported it to Rodriguez, none of the other allegedly harassing events had a racial character or purpose. ( See Def.'s App. at 22.) In addition, the manner in which Rodriguez performed his service checks may have been annoying to Johnson but there is no evidence that Rodriguez's actions were severe or pervasive enough to affect the terms and conditions of Johnson's employment. Because Johnson has failed to establish a prima-facie case of racial harassment, Federal Express is entitled to summary judgment on this claim.
C. Retaliation
Title VII makes it unlawful for any employer to retaliate against an employee for bringing a charge under Title VII. See 42 U.S.C.A. § 2000e-3(a) (West 1994). "The burden-shifting structure applicable to Title VII disparate treatment cases . . . is applicable to Title VII unlawful retaliation cases." Haynes, 207 F.3d at 299. To establish a prima-facie case for retaliation under Title VII, a plaintiff must show: (1) the plaintiff engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See Haynes, 207 F.3d at 299; Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). The causal connection can be inferred from circumstantial evidence, such as showing the employer had knowledge that the plaintiff engaged in a protected activity and showing the temporal proximity of that activity to the alleged retaliatory action. See Evans, 246 F.3d at 354; Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
An "employee has engaged in activity protected by Title VII if he has either (1) `opposed any practice made an unlawful employment practice' by Title VII or (2) `made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing' under Title VII." See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)).
The first issue is whether Johnson has shown a prima-facie case of retaliation. When viewing the facts in the light most favorable to Johnson, Johnson did engage in an activity protected by Title VII when he, at some point prior to his termination, informed Federal Express that he would be filing an internal EEOC complaint with Federal Express. Thereafter, on April 7, Johnson experienced an adverse employment action when he was fired. In addition, a causal connection between Johnson's protected activity and his termination can be inferred because very little time elapsed between the time Johnson notified Federal Express that he would be filing an internal EEOC complaint and his termination. Thus, Johnson has established a prima-facie case of retaliation and the burden shifts to Federal Express to articulate a legitimate, non-retaliatory reason for Johnson's termination.
Although Federal Express did not receive Johnson's internal EEOC complaint until after he was terminated, Federal Express was allegedly aware of his intent to file the internal EEOC complaint at least one week before Johnson was fired. See, e.g., Minott v. Port Auth. of New York and New Jersey, 116 F. Supp. 2d 513, 524 (S.D.N.Y. 2000) ("Informal as well as formal complaint, including complaints to management, constitute protected oppositional activity"); Dorantes v. Texas Tech Univ. Health Sciences Ctr., No. EP-02-CA-394-DB, 2003 WL 21474255, at *3 (W.D. Tex. June 23, 2003) ("Also within the scope of activity protected by the "participation clause" are acts such as announcing an intent to file a charge. . . .") In addition, although it is unclear from the evidence exactly who was notified of Johnson's intent to file the internal-EEOC complaint, there is evidence that Lee and possibly Siepler, both of whom played some role in Johnson's termination, had knowledge of Johnson's intent.
Federal Express claims that it terminated Johnson because he threatened his manager in violation of its Acceptable Conduct Policy, which prohibits, among other actions, threatening, intimidating or abusive conduct toward any Federal Express employee. (Def.'s App. at 49-53.) However, Johnson has presented evidence indicating that Federal Express's reason for its termination may be unworthy of credence: (1) the short amount of time that elapsed between Johnson's notifying Federal Express that he was going to file an internal EEOC claim and his termination, (2) the sudden change, without any apparent reason, from the supervisors' decision to give Johnson a warning letter for his conduct to their decision to terminate him for his conduct, and (3) the two differing personal statements written by Rodriguez, which creates an appearance that Federal Express asked Rodriguez to rewrite his personal statement in an attempt to bolster its allegedly non-retaliatory reason for terminating Johnson. Because this evidence could lead a reasonable factfinder to believe that Federal Express's proffered reason for Johnson's termination is not credible, Federal Express is not entitled to summary judgment on this claim.
IV. CONCLUSION
Based on the foregoing, it is ORDERED that the defendant's Motion for Summary Judgment [doc. # 31-1] is PARTIALLY GRANTED in that the defendant is entitled to summary judgment on the plaintiff's claims for racial discrimination and racial harassment. The defendant is not entitled to summary judgment on the plaintiff's claim for retaliation.