Opinion
No. CA 3:02-CV-2189-R
April 15, 2004
MEMORANDUM OPINION AND ORDER
Before this Court is Defendant American Flood Research, Inc.'s Motion for Summary Judgment (filed September 15, 2003) on Plaintiffs Pok Seong Kwong and An Yuan's claims alleging race, national origin, and religious discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons set forth below, Defendant's motion is GRANTED.
By an April 29, 2003 Court order, Plaintiff Wei Chen was dismissed with prejudice from this suit. Accordingly, the Court will not address his involvement in the case.
I. FACTUAL BACKGROUND
Pok Seong Kwong ("Kwong"), of Malaysian-Chinese descent, and An Yuan ("Yuan"), of Chinese descent, worked in the IT Department at American Flood Research, Inc. ("AFR"), a company that provides customer-requested flood zone certifications. Together, Kwong, the department's director, and Yuan, oversaw the online production computer systems that processed computer-assisted flood zone certification requests. On 15 November 2001, Kwong and Yuan complained to AFR President Pat Catalano ("Catalano"), in a letter written by Kwong, that they were repeatedly discriminated against on the basis of their race, national origin, and religion and demanded $180,000 each as compensation. AFR, in turn, sought advice from its legal counsel.
Later that day, AFR discovered problems with its automated mapping system. Flood zone requests were failing to go through the system. Further, the outbound fax server used to fax completed flood certificates slowed to a standstill, worsening the system's problem.
On 16 November 2001, shortly after reporting to work, Yuan went home sick. He was later visited by Kwong, and the two went to lunch. On the way, they discussed AFR's ongoing computer problems. After lunch, they went to the mall where they played video games and drank coffee. From there, the two then went to a restaurant for food and drinks. Ultimately, neither Kwong or Yuan returned to work. AFR terminated Kwong that day and Yuan on November 17, 2001.
Subsequently, Kwong and Yuan filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging harassment and race, national origin, and religious discrimination. On September 20, 2002, the EEOC issued to them notices informing them of their right to sue. Accordingly, they filed a two-count Complaint in this court on October 8, 2002.
II. ANALYSIS
A. Summary Judgment Standard
FEDERAL RULE OF CIVIL PROCEDURE 56(c) allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the nonmoving party. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these cases. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). If the defendant, however, is able to present strong evidence of a legitimate, non-discriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may be properly granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
B. Title VII Analysis
Title VII prohibits covered employers from, among other things, discharging an employee or otherwise discriminating against "any individual with respect to [his or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In reviewing discrimination claims, courts apply the burden-shifting framework applied by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1990). See also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). Under this framework, a plaintiff must first establish a prima facie case of discrimination, thus, creating a rebuttable presumption that the employer unlawfully discriminated against the plaintiff based on his or her race, national origin, or religion.
The burden of production then shifts to the employer to rebut the presumption by producing evidence that it had a legitimate, non-discriminatory reason for its employment decision. See Reeves, 530 U.S. at 142. Once the employer produces a legitimate, non-discriminatory reason for its employment decision, which rebuts the plaintiff's prima facie case, all presumptions drop from the case. See Grimes v. Texas Dep't of Mental Health, 102 F.2d 137, 140 (5th Cir. 1996). The plaintiff then bears the ultimate burden of showing pretext on the part of the employer. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Swanson v. General Servs. Admin., 110 F.3d 1180, 1186 n. 1 (5th Cir. 1997).
But the burden of persuasion — that the employer intentionally discriminated against the plaintiff — remains at all times with the plaintiff.
C. Race, National Origin, and Religious Discrimination
Kwong and Yuan's complaint alleges discrimination by AFR based on their race, national origin, and religion. AFR, however, contends that Kwong and Yuan have failed to establish a prima facie case of any discrimination. To establish a prima facie case of discrimination based on race, national origin, or religion, Kwong and Yuan must show that (1) they have suffered an adverse employment action, (2) they belonged to a protected class at the time of the decision, (3) they were qualified for their positions, and (4) they were replaced by someone not within the protected class. See Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001). They must also show, to establish a prima facie case of religious discrimination, that (1) they have a bona fide religious belief that conflicts with an employment requirement, (2) they informed AFR of this belief, and (3) they were discharged for failing to comply with the conflicting employment requirement. See Vaughn v. Waffle House, Inc., 263 F. Supp.2d 1075, 1080 (N.D. Tex. 2003). Kwong and Yuan have not met their burden.
It is unclear from Plaintiffs' Complaint whether they have pled separate claims of race, national origin, and religious discrimination, however, the Court will address each claim accordingly.
"Rule 56 obligates the non-movant to designate the specific facts in the record that create genuine issues precluding summary judgment." Bookman v. Shubzda, 945 F. Supp. 999, 1004 (N.D. Tex 1996). The Court does not have a duty to survey the entire record in search of evidence to support a non-movant's opposition. See id. (citations omitted). While it is undisputed that Kwong and Yuan are members of a protected class for purposes of their race and national origin discrimination claims, they have not cited to any items in the record or designated any facts in their response to create a genuine issue of material fact in support of the remaining elements of their claims. "When a party fails to refer to items in the record, evidence is not properly before court in deciding whether to grant the motion." Id. Therefore, Kwong and Yuan have failed to carry their burden under Rule 56, and their claims fail.
D. Hostile Work Environment
Next, Kwong and Yuan's implicitly alleges that they were subjected to a hostile work environment while at AFR. Under Title VII, Kwong and Yuan establish a prima facie case of hostile work environment if (1) they belong to a protected group, (2) they were subjected to unwelcome harassment, (3) the harassment complained of was based on race, (4) the harassment affected a term, condition, or privilege of employment, and (5) AFR knew or should have known of the harassment in question and failed to take prompt remedial action. See Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002) (citation omitted). AFR contends that Kwong and Yuan have failed to present evidence supporting this claim. The Court agrees.
Though Plaintiffs' Complaint explicitly alleges race, national origin, and religious discrimination, it attempts to plead facts in support of a claim of hostile work environment based on racial harassment. Thus, the Court will analyze this claim.
As with their claims of race, national origin, and religious discrimination, Kwong and Yuan have likewise failed to carry their evidentiary burden under Rule 56. They have not cited to any evidence creating a genuine issue of material fact in support of their claim of hostile work environment. Thus, the Court will grant summary judgment as to this claim.
E. Retaliation
Lastly, Kwong and Yuan alleges that AFR terminated them in retaliation for their November 15 complaint of alleged discrimination. To establish a prima facie case of retaliation under Title VII, Kwong and Yuan must show that (1) they engaged in activity protected by Title VII, (2) they suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment action. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (citation omitted). AFR argues that they have failed to satisfy this burden. Although the parties do not dispute the first and second elements of the claim, AFR contends that Kwong and Yuan have failed to establish a causal connection between the protected activity and the adverse employment action.
"The causal link required by the third prong of the prima facie case does not rise to the level of a `but for' standard." Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002) (citation omitted). That is, the plaintiff "need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case." Id. Kwong and Yuan assert specifically that their termination within 36 hours of their complaint to AFR provides the "causal connection" necessary to establish a prima facie case of retaliation. "Close timing between an employee's protected activity and an adverse action against [him] may provide the `causal connection' required to make out a prima facie case of retaliation." Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)) (emphasis omitted). Here, after drawing all reasonable inferences in favor of Kwong and Yuan, the non-movants, the Court finds that a time lapse of 36 hours is sufficient to establish the third prong of a prima facie case of retaliation, and thus, Kwong and Yuan have satisfied their initial burden under the McDonnell Douglas burden-shifting analysis.
Since Kwong and Yuan have created an inference of discrimination based on retaliation, AFR must rebut the inference by producing evidence of a legitimate, non-discriminatory reason for its decision to terminate them. See Reeves, 530 U.S. at 142. Accordingly, AFR submitted evidence to show that Kwong and Yuan were terminated for allegedly: (1) abandoning their jobs; (2) intentionally causing the computer mapping system problems; and (3) violating several provisions of AFR's Policies and Procedures Manual. To the contrary, Kwong and Yuan argue that AFR's proffered reasons are pretext.
To make a showing of pretext sufficient to survive summary judgment, Kwong and Yuan must present evidence rebutting each of the nondiscriminatory reasons AFR articulates. See Ramirez v. Landry's Seafood Inn Oyster Bar, 280 F.3d 576, 577 (5th Cir. 2002) (emphasis added and citation omitted). Among its reasons for terminating Kwong and Yuan, AFR specifically contends that they violated section XI of the Policies and Procedures Manual, which authorizes immediate termination of employees who, among other things, refuse to obey supervisor's instructions pertaining to work, refuse to help out on special assignments, and leave work before the end of the work day without authorization. (Pls.' Mot. for Summ. J. App. at 112-13). A termination decision is not pretextual if the employer had reasonable grounds for the decision or in good faith thought it did. See Jones v. Flagship Int'l, 793 F.2d 714, 729 (5th Cir. 1986). Based on the evidence, Kwong and Yuan have failed to present sufficient evidence proving pretext as to these reasons. Indeed, they admitted to leaving work before the end of the work day without notifying their supervisor or seeking prior authorization. (Def's. Resp. to Pls.' Mot. for Summ. J. App. at 2, 1(j)); (Pls.' Mot. for Summ. J. App. at 4-6). Therefore, because they have not rebutted each of AFR's nondiscriminatory reasons for termination, Kwong and Yuan have failed to provide sufficient evidence to permit a rational factfinder to conclude that AFR terminated them based on a discriminatory motive. Accordingly, Kwong and Yuan's claim fails.
F. Attorney's Fees
AFR argues that it is entitled to attorney's fees, under 42 U.S.C. § 2000e-5(k), because Kwong and Yuan's claims were frivolous, unreasonable, or groundless. It seeks to recover a total of $83, 617.49. This figure, Kwong and Yuan argue, is unsupported by billing records and is thus an improper request for attorney's fees.
"The district court should award the prevailing defendant attorney's fees only if the [p]laintiffs' action was `frivolous, unreasonable, or without foundation.'" Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999). "In determining whether a suit is frivolous, the district court should look to factors such as whether the [p]laintiffs established a prima facie case, whether the defendant offered to settle, and whether the court dismissed the case or held a full trial." Id. (citing United States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991)). Based on the circumstances of the case, the Court sees no justification to award AFR attorney fees and denies its request.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. It is so ORDERED.