Opinion
Civil No. 3:01-CV-1625-H
May 6, 2002
MEMORANDUM OPINION AND ORDER
Before the Court if Defendant's Motion for Summary Judgment, filed March 4, 2002; Plaintiffs Response thereto, filed March 25, 2002; and Defendant's Reply, filed April 9, 2002. Also before the Court is Plaintiffs Motion to Strike, filed April 15, 2002; and Defendant's Response, filed April 23, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion for Summary Judgment should be GRANTED and Plaintiffs Motion to Strike should be DENIED.
I. BACKGROUND
This is an age discrimination case. Plaintiff was employed by the Defendant R.R. Donnelley Sons Co. ("RRD") beginning in 1970. RRD is a printing, communications services, and logistics company. (Mot. at 1). In 1982, Plaintiff began work at the RRD plant in Newton, North Carolina where he remained until 1997, when the plant closed. (Mot. at 1). All employees of the North Carolina plant were given the option to apply for positions at other RRD facilities or accept severance benefits. (Mot. at 1). Plaintiff, at age 55, applied for and was hired at the RRD/Neiman Marcus facility in Irving, Texas, by Don Lloyd, age 42, the manufacturing supervisor. (Mot. at 1-2). All the employees at this facility conduct work for and on the premises of Neiman Marcus. (Mot. at 2). Plaintiff was notified in early 2000 that his work at the RRD/Neiman Marcus facility would end, but that Lloyd was investigating a transfer for the Plaintiff to a subsidiary of RRD, called Omega photography studio. This transfer never took place and Plaintiff was discharged. Plaintiff contends that he remained employed until August 11, 2000. (Resp. at 4). Plaintiff received eight weeks of severance pay when he left the RRD/Neiman Marcus. Treavor Mellott was hired after Plaintiffs termination and was under 40 in 2000.
Plaintiff filed a complaint with the Texas Commission on Human Rights on August 7, 2000 and amended his complaint on March 14, 2001. (Def. Exh. I). Plaintiff filed his Original Petition in State Court on July 14, 2001, and Defendants removed the case to this Court on August 20, 2001. Plaintiff asserts that Defendant violated the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB. CODE ANN. § 21.051 (2002), by terminating and under compensating the Plaintiff. In relation to the compensation claim, Plaintiff alleges that he should have received and was denied a sufficient separation package when his employment ended. Plaintiff also makes a number of procedural objections to Defendant Motion and Reply. Defendant denies that Plaintiff was terminated due to his age and asserts that Plaintiff was not qualified for the position at the Neiman Marcus facility and was terminated due to poor job performance. Defendant also asserts that Plaintiff did not qualify for full separation pay benefits because he was terminated and that he only received the eight weeks of pay because of his length of service with Defendant.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. ANALYSIS
A. Burdens of Proof
Plaintiff brings his age discrimination claim for wrongful termination under TCHRA, which is interpreted in accordance with Title VII and the Age Discrimination in Employment Act ("ADEA") case law. See Deaver v. Texas Commerce Bank, 886 F. Supp. 578, 585 (E.D. Tex. 1995); see also City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex. 1992) ("The purpose of the Human Rights Act is to execute the policies of Title VII . . . ."). A prima facie case under the ADEA entails showing that the Plaintiff was: 1) within the protected class; 2) qualified for his position; 3) discharged; and 4) replaced by someone outside the protected class, someone younger, or was otherwise discharged because of his age. See Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996); see also Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1505 (5th Cir. 1988). If the Plaintiff establishes these four factors, then the burden shifts to the Defendant to articulate a legitimate non-discriminatory reason for its disparate treatment of the Plaintiff. See Beinkowski, 851 F.2d at 1505. If Defendant does so, then Plaintiff must prove that Defendant's stated reasons are a pretext for discrimination by either showing that "a discriminatory reason more likely motivated the employer or . . . by showing that the employer's proffered reason is unworthy of credence." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also id.; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-48 (2000) (clarifying that "it is permissible . . . to infer the ultimate fact of discrimination from the falsity of the employer's explanation.") (emphasis in original). Plaintiff retains the ultimate burden of persuasion. See Burdine, 450 U.S. at 256. It is under this scheme that the Court will analyze Defendants assertions regarding Plaintiffs claims of unlawful termination and compensation in employment.
B. Termination
1. Prima Facie Case
Defendant argues that Plaintiff cannot establish a prima facie case for wrongful termination based on age discrimination. The Parties agree that Plaintiff was over the age of 40 when he was terminated and that he was terminated. Defendant attacks the second and third prongs of the prima facie case, alleging that Plaintiff was unqualified for the position at the Neiman Marcus facility and that Plaintiff cannot show that similarly situated employees were treated more favorably. Defendant's contentions bring to light a gray area of Fifth Circuit law.
When arguing that he suffered age discrimination in termination, Plaintiff agrees he was terminated. (Compl. at 2). In the alternative, however, in support of the compensation claim, he alleges that his position was simply eliminated. For purposes of age discrimination analysis, the Court will assume arguendo that Plaintiff was terminated, and will consider the issue of termination under the compensation analysis. See infra Part II. C.
Defendant argues that the fourth prong of the prima facie case includes consideration of whether similarly situated employees were treated more favorably. See Okoye v. University of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (analyzing whether similarly situated employees outside the Plaintiffs class were treated more favorably as prong four of the prima facie case); Okere v. Bill J. Priest Institute for Economic Development, 2001 WL 1297654, at 4 (N.D. Tex. 2001) (same). Other Fifth Circuit cases, however, analyze the "similarly situated" factor as part of the first Burdine factor — whether a discriminatory reason more likely motivated the Defendant — in determining pretext. See Shakelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 405 (5th Cir. 1999) (analyzing Plaintiffs allegation that she was treated differently from similarly situated employees outside her protected class during the pretext stage); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96-97 (5th Cir. 1991) (same). In addition, some debate exists as to whether the Defendant's claim that the employee performed poorly is properly analyzed under prong two of the prima facie case — whether the Plaintiff was qualified — or steps two and three of the analysis.
The majority of cases provide that "qualification" should be analyzed in the context of whether the "Plaintiff had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit for the position for which he was hired," leaving the remaining question of what role the Plaintiffs alleged poor performance played in the termination decision to the employer's legitimate non-discriminatory reason and whether that reason is pretext for discrimination. Bienkowski, 851 F.2d at 1506 n. 3; see also Gold v. Exxon Corp., 960 S.W.2d 378, 382 (Tex.App. ___ Houston [14th Dist.] Jan. 15, 1998, no pet.) ("it is clear the courts have generally reserved question of poor work performance for the second and third phases of the employment discrimination burden-shifting analysis"); Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 559-60 (Tex.App. ___ Corpus Christi Aug. 2, 1995, writ denied) (following the Court's reasoning in Bienkowski). But see Sreeram v. Louisiana State Univ. Medical Ctr. — Shreveport, et al., 188 F.3d 314, 318-19 (5th Cir. 1999) (analyzing Plaintiffs poor performance in a medical residency program as part of the prima facie case).
Without determining which form of analysis is appropriate, this Court determines that the facts lend themselves to interpreting Defendant's evidence of poor performance and allegations that Plaintiff has not provided evidence of favorable treatment of similarly situated persons as part of the second and third steps in the burden of proof. It is redundant to consider these factors in both the prima facie case and in analyzing the second and third burdens. See Bienkowski, 851 F.2d at 1505. Thus, given that Defendant's contentions rested on prongs two and four of the prima facie case only, and the Court has resolved to address Defendant's contentions later in the analysis, the Court finds that Plaintiff has establish a prima facie case of age discrimination.
2. Legitimate Non-Discriminatory Reason and Pretext
Defendant asserts that Plaintiff was not terminated because of his age, but was terminated because his performance was dissatisfactory. (Mot. at 13). Defendant contends that Plaintiffs pre-press skill work was not adequate for the job at the RRD Neiman-Marcus facility. To document this dissatisfaction, Defendant provides a copy of Plaintiff's final Performance Review, which notes that "Customer [Neiman Marcus] continues to voice dissatisfaction with his skill level. This is a real problem for both Ernie and the facility." (Def. Exh. F at 93). Plaintiff also received a "Less than Acceptable" Initiative Rating in the same Performance Review. (Exh. F at 94). Furthermore, Defendant notes that Don Lloyd received complaints about the Plaintiff from Neiman Marcus employees. (Def. Exh. E at 27.13-32.2, 58.6-59.9, 149.19-150.21). Even during 1999 and 2000, when the Plaintiff as given alternate work on correcting color on the Internet for Neiman Marcus, Lloyd continued to receive complaints about Plaintiffs work product. (Def. Exh. E. at 145.15-145.23).
The Parties do not dispute that the work Plaintiff performed at the Neiman-Marcus facility was different from that he performed at his previous facility. (Mot. at 2 n. 1).
It is uncontested that Lloyd was 55 years old when he hired the Plaintiff and 58 years old when the Plaintiff was terminated. This situation gives rise to an inference of nondiscrimination in two respects: 1) Lloyd both hired and fired Plaintiff, see Nieto v. LH Packing Co., 108 F.3d 621, 624 (5th Cir. 1997) (noting that usually a supervisor will not hire a person from a group he dislikes only to fire them later); and 2) Lloyd was in the same protected class as Plaintiff. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (stating that the inference is enhanced when the supervisor is in the same class as the complainant).
Plaintiff seeks to overcome Defendant's showing in several ways. First, to rebut Defendant's inference of non-discrimination, Plaintiff alleges that Ann Recker, who was under 40 at the time of Defendant's termination, was Plaintiffs supervisor at the time he was terminated. Plaintiffs assertions do not rebut the presumption. Plaintiff supports his argument with a statement in Lloyd's deposition where Lloyd was asked if he was surprised that Plaintiff stated that Lloyd terminated him because of his age. Lloyd answered in the affirmative and said "I think because I didn't do it. And I think that's obvious." (Exh. E 173-174). Plaintiff construes this statement to mean that Lloyd did not terminate Plaintiff. Lloyd stated later in the deposition, however, that he was the employee who terminated Plaintiff. (Exh. E at 180). Although this Court must take all factual controversies in the light most favorable for the Plaintiff, Plaintiff does not create a factual controversy out of Lloyd's statement. Given that Lloyd clarified that he terminated Plaintiff later in the deposition and Plaintiff provides no other evidence that he was terminated by Recker, or anyone besides Lloyd, the Court cannot find any factual controversy in Plaintiffs approach. See Lynch, 140 F.3d at 625 ("Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists.").
Second, Plaintiff alleges that Defendant's reasons are a pretext for discrimination. As stated above, Plaintiff must show that Defendant's stated reasons are pretext by "either showing that a discriminatory reason more likely motivated the Defendant or by showing that the Defendant's reason is unworthy of credence." See Beinkowski, 851 F.2d at 1505. In support of the first method of establishing pretext, Plaintiff asserts that similarly situated employees were treated differently than Plaintiff. Specifically, Plaintiff asserts that Sieg Klempel, another quality analyst who was under the age of 40 at the time of Plaintiffs termination, was criticized by employees of Neiman Marcus and was not terminated. Lloyd testified that although Klempel began having the same performance problems that Plaintiff had, Klempel improved and Neiman Marcus employees ceased complaining about him in 1996. (Def. Exh. E. at 150-152). Plaintiff also states that Ann Recker, Plaintiffs former supervisor was placed on probation after Neiman Marcus employees complained about her work and was later demoted, but not terminated. Defendant notes that Recker is not similarly situated to Plaintiff because she was a supervisor, and therefore in a managerial position, and the Court agrees. Given Klempel's situation, however, there is some minimal controversy as to whether similarly situated employees were treated differently.
In support of the second method of showing pretext, Plaintiff notes that Lloyd never disciplined Plaintiff, Plaintiffs termination was not in writing, the performance evaluations do not contain complaints about Plaintiffs performance, Plaintiff received a merit increase in his last performance evaluation, Lloyd gave conflicting reasons for termination, a date of termination is not ascertainable, and Plaintiff did not know that his skills were unacceptable. Courts have found one factor on which a Plaintiff can establish that Defendant's reasons are pretext is the lack of performance evaluations containing criticism of the employee or other evidence that the employee was disciplined. See Atkinson v. Denton Publishing Co., 84 F.3d 144, 149 (5th Cir. 1996); Stanley Stores, Inc. v. Chavana, 909 S.W.2d at 561. Defendant's evaluations, however, clearly do include critiques of Plaintiffs performance, (Pl. Exh. A-1), and there is no evidence of a policy or other procedure for disciplining employees. See Chavana, 909 S.W.2d at 560 (noting that the Defendant has a policy to counsel employees and that the Plaintiffs life did not contain evidence that such counseling took place).
Lloyd's allegedly conflicting statements about the cause of Plaintiffs termination were made in Lloyd's deposition. First, Lloyd stated that Plaintiff was terminated for customer dissatisfaction. (Pl. Exh. B at 33). Second, Lloyd states that Plaintiff was terminated primarily for customer dissatisfaction, but also because his performance was declining. (Pl. Exh. B. at 45). Third, Lloyd indicates that Plaintiff was going to be terminated if he had interest in the Omega position. (Pl. Exh. B. at 76). The Court fails to see how these statements are conflicting and the Plaintiff does not so explain.
Plaintiff has not come forward with sufficient evidence to defeat the legitimate non-discriminatory reason or the inference of a lack of discrimination made by the Defendant. In the Chavana case, on which Plaintiff primarily relies, additional evidence, such as unequal pay scales, existed from which the Court could infer discrimination. See Chavana, 909 S.W.2d at 561. In Atkinson, there was additional evidence such as the supervisor's statement that he preferred to work with younger employees. See Atkinson, 84 F.3d at 149. Given that Lloyd was the same person who hired and fired Plaintiff, and that Lloyd was over 40 at the time, Plaintiffs strongest evidence — that there was a similarly situated employee who was not terminated — is not sufficient to overcome Defendant's showing. Plaintiffs ultimate responsibility is to show that his age was the motivating factor behind the employment decision, and Plaintiff has not so done. See Bienkowski, 851 F.2d at 1505. Defendant's Motion for Summary Judgment is therefore granted on this ground.
C. Compensation
Plaintiff makes a slim showing of discrimination in compensation on the basis of age. Plaintiff alleges that Defendant stated that Mellott did not replace Plaintiff, and thus Plaintiffs position was eliminated. Plaintiff does not cite to Defendant's brief for this assertion and Defendant concedes in its Reply that Plaintiff was terminated. (Reply at 3 n. 4). Even if this Court found a fact issue as to whether Plaintiff was terminated, Plaintiffs showing of pretext is the same as was made for the termination claim and is not sufficient. Defendant's Motion for Summary Judgment is granted on this ground.
IV. OBJECTIONS AND MOTION TO STRIKE
In Plaintiffs Response, he objects to Defendant's Motion on the basis that Defendant did not comply with Local Rule 56.3(a)(3) by making a citation to each page of the Appendix, and made statements without supporting facts. The Court did not rely on any statements made in Defendant's Motion that were not supported with specific references to the Appendix or with summary judgment evidence. Thus, Plaintiffs objection is denied as moot.
Plaintiff also objects to Exhibits A, B, C, D, F, and H included in Defendant's Appendix. The objections to Exhibits B and F are frivolous given that the same documents are included in Plaintiffs Appendix. Exhibits C, D, and H were not relied on by the Court and therefore Plaintiffs objections are denied as moot.
In Plaintiffs Motion to Strike, Plaintiff moves to strike additional exhibits Defendant provided in its Reply in responding to Plaintiffs objection to Exhibit A. Plaintiff argues that Exhibit A, Plaintiffs Deposition, was improper summary judgment evidence because it was not signed by the Plaintiff, Plaintiff did not have an original copy, and is hearsay. Defendant submitted with its Reply a copy of a Fax Cover Sheet, dated January 10, 2002, from the reporter who took Plaintiffs deposition, in which the reporter explains that the original deposition is available for review and signature. (Reply Exh. 1). Defendant also submitted a copy of a January 11, 2002 e-mail from Defendant's Counsel to Plaintiffs Counsel, explaining that they would send a copy of the deposition to Plaintiff, but not the original because they wanted to retain it for custodial purposes. (Reply Exh. 2). Under FED. R. CIV. P. 30(e) Defendant is required to make the original transcript available for review and signing, and Plaintiff does not dispute that Defendant did so. Plaintiffs objection that the deposition is unsigned is due solely to the fault of the Plaintiff and is frivolous. In addition, it is basic evidence law that a deposition, taken under oath, is not hearsay and Plaintiffs objection on this ground is certainly frivolous. Plaintiffs Motion to Strike is denied on this ground.
Plaintiffs other objections to Defendant's Reply Exhibits 3 and 4 are denied. The Court did not rely on Exhibit 3 and Exhibit 4 only serves to cure any defects in the Exhibits submitted as Summary Judgment evidence. See United States v. Lawrence, 276 F.3d 193, 196 (5th Cir. 2001). Therefore, Plaintiffs objections are denied.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs Motion to Strike is DENIED.