Opinion
No. SA-03-CA-1174-RF.
May 24, 2006
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are Defendant Boeing Aerospace Operation Inc.'s Motion for Summary Judgment (Docket No. 43), filed March 10, 2006, Plaintiff's Response to Defendant's Motion for Summary Judgment (Docket No. 51), filed April 7, 2006, and Defendant's Reply in Support of its Motion for Summary Judgment (Docket No. 53), filed April 18, 2006. The parties appeared before the Court for a hearing on this matter on May 11, 2006. After due consideration, the Court is of the opinion that Defendant's Motion (Docket No. 43) should be GRANTED IN PART AND DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Guillermo Martinez, a Mexican-American man, was discharged from the military in 1979, at which time he began his career as an aircraft mechanic. Plaintiff spent the first two years of his career as an aircraft mechanic with Swearingen Aviation. Plaintiff was also employed by Lear Siegler from 1986 until 1998, where he worked making modifications to T-37 and T-38 aircrafts. On September 14, 1998, Plaintiff voluntarily left Lear Siegler to go work for Defendant Boeing as an aircraft mechanic in the MD-10 program. In May 1999, Boeing transferred Plaintiff to the KC-135 program as an aircraft mechanic.
Pl. Response to Def. MSJ (Docket No. 51), Exhibit B, Pl. Depo at p. 26.
Pl. Response to Def. MSJ (Docket No. 51), Exhibit B, Pl. Depo at pp. 31, 36.
Pl. Response to Def. MSJ (Docket No. 51), Exhibit B, Pl. Depo at pp. 37.
Pl. Response to Def. MSJ (Docket No. 51) at p. 2.
Over the course of his employment with Boeing, Plaintiff applied for several promotions, none of which he received. In this case, Plaintiff complains about five positions in particular for which he was not selected. Plaintiff claims that he applied for the following job openings at Boeing: (1) Manufacturing Multi-Discipline Manager; (2) Back Shop Flight Manager, Level K; (3) Fabrication Manager, Level J; (4) Business and Planning Analyst 3; and (5) Structures Lead Man. Plaintiff believes he was not selected for any of these positions solely because of his national origin and not because of any deficiency in his qualifications. Plaintiff also states that he was subjected to racist jokes and racial epithets and other derogatory comments by management officials. Furthermore, Plaintiff claims that management allowed offensive graffiti to remain in the restroom facilities. Plaintiff asserts these conditions constituted a hostile working environment.
In Plaintiff's First Amended Complaint (Docket No. 5), Plaintiff pleaded the following causes of action: (1) deprivation of rights and privileges guaranteed to him by the Thirteenth Amendment to the United States Constitution; (2) violations of 42 U.S.C. § 1981 by denying him compensation opportunities based upon his race and national origin, Mexican-American, and retaliating against him because he engaged in protected conduct and opposed conduct made unlawful by federal law; (3) violations of Title VII of the Civil Rights Act of 1964; and (4) intentional infliction of emotional distress. Defendant addressed each of these four claims in its Motion for Summary Judgment. In his Response to Plaintiff's Motion for Summary Judgment, Plaintiff only addressed the Title VII failure to promote and hostile work environment claims. Therefore, the Court will treat Plaintiff's other claims as abandoned. As a result, the Court finds that Defendant's Motion for Summary Judgment should be GRANTED IN PART as to Plaintiff's claims for (1) violations of the Thirteenth Amendment, (2) violations of 42 U.S.C. § 1981 (retaliation), and (3) intentional infliction of emotional distress. The Court will address the failure to promote and hostile working environment claims below.
STANDARD OF REVIEW
Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
Failure to promoteUnder McDonnell Douglas and its progeny, in a Title VII case Plaintiff must first establish a prima facie case of discrimination. The McDonnell Douglas burden shifting analysis states that if the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to "respond with a legitimate, nondiscriminatory reason for its decision." If the employer meets this burden, "the plaintiff must prove that the employer's stated reason for the adverse action was merely a pretext for the real, discriminatory purpose."
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973).
Blow v. City of San Antonio, Texas, 236 F.3d 293, 296 (5th Cir. 2001).
McDonnell Douglas, 411 U.S. at 802.
Baker v. Am. Airlines, Inc., 430 F.3d 750, 755 (5th Cir. 2005) (quoting Septimus v. Univ. of Houston, 399 F.3d 601, 610-11 (5th Cir. 2005)).
In order to establish a prima facie case in a claim for failure to promote, Plaintiff must show that: "(1) he was within a protected class; (2) he was qualified for the position sought; (3) he was not promoted; and (4) the position he sought was filled by someone outside the protected class." Defendant does not appear to dispute any element of Plaintiff's prima facie case. Instead, Defendant asserts that as a threshold matter, Plaintiff can only complain about two of the positions. Defendant notes that (1) Plaintiff submitted his application for the Manufacturing Multi-Discipline Manager position four days after the final date for accepting applications; (2) Boeing cancelled the requisition for the Back Shop Flight Control Manager, Level K, therefore, no individual received the position; and (3) Boeing has no record of receiving Plaintiff's application for the Business and Planning Analyst 3 position. For these reasons, Boeing argues that it could not have discriminated against Plaintiff regarding those three positions. Boeing further argues that for both the Fabrication Manager, Level J and the Structures Lead Man positions, the person ultimately hired was more qualified than Plaintiff. Therefore, Defendant had a legitimate, nondiscriminatory reason for not promoting Plaintiff, and Defendant asserts that Plaintiff can produce no evidence that its stated reason was pretext for a discriminatory motive.
Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004) (citing Gee v. Principi, 289 F.3d 342, 245 (5th Cir. 2002)).
Plaintiff met his burden for establishing the prima facie elements of a failure to promote claim: (1) he is a member of a protected class; (2) he was qualified for the positions he sought; (3) he was not promoted; and (4) the positions were filled by someone outside the protected class. Therefore, the burden shifts to Boeing to demonstrate that it had a legitimate, non-discriminatory reason for not promoting Mr. Martinez. Defendant addresses each of the positions in turn.
Manufacturing Multi-Discipline Manager — Defendant responds that with regard to the Manufacturing Multi-Discipline Manager position, Plaintiff submitted his application four days after the application period closed. Therefore, Mr. Martinez's application was not even considered for this position. Defendant contends that it could not discriminate against Plaintiff regarding a position for which it did not even consider his application. Plaintiff does not address Defendant's asserted reason for failing to award him the Manufacturing Multi-Discipline Manager position. Plaintiff does not assert that Defendant's stated reason is pretext for discrimination. Instead, Plaintiff describes the qualifications for the position, states that he was qualified for this job, and notes that a Caucasian man was awarded the promotion.
Appendix to Def. MSJ (Docket No. 44); Exhibit G, Warren Affidavit at ¶ 4.
Back Shop Flight Control Manager, Level K — Defendant states that this position was originally posted in May 2000. Boeing later changed the posting to be a "Level J" position. Boeing alleges that it ultimately cancelled that posting altogether for business reasons and nobody was hired for that position. Plaintiff responds that he has no knowledge of the posting being cancelled, and that on August 12, 2000, he received a letter which stated that he was not sufficiently qualified for the position and would not be receiving an interview. However, the Director of Human Resources stated in his affidavit that the letter was inadvertently sent to all applicants and that nobody was hired for that position because it was cancelled. Business and Planning Analyst 3 position — Defendant argues that it has no record of ever receiving Plaintiff's application for this position. Defendant concludes that it could not have discriminated against Plaintiff regarding an application it did not know existed. Again, Plaintiff does not address Defendant's stated non-discriminatory reason for not granting Plaintiff this promotion. Nor does Plaintiff attach any documentation to support his claim that he applied for this position. Instead, Plaintiff recites the qualifications for this position and how his prior training and experience provided him the necessary qualifications for this job.
Appendix to Def. MSJ (Docket No. 44); Exhibit E, Bouse Affidavit at ¶ 9.
Appendix to Def. MSJ (Docket No. 44); Exhibit E, Bouse Affidavit at ¶ 9.
Appendix to Def. MSJ (Docket No. 44); Exhibit E, Bouse Affidavit at ¶ 9, 10.
Under the McDonnell Douglas analysis, Plaintiff must prove that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." For the Manufacturing Multi-Discipline Manager, Back Shop Flight Control Manager, and Business and Planning Analyst 3 positions, the Court finds that Plaintiff failed to sufficiently allege that Defendant's stated reasons for not promoting Plaintiff are pretext for discrimination. Therefore, the Court is of the opinion that Defendant's Motion should be GRANTED as to the positions of Manufacturing Multi-Discipline Manager, Back Shop Flight Control Manager, and Business and Planning Analyst 3.
Runnels v. Texas Children's Hosp. Select Plan, No. 04-20825, 2006 WL 189939, at *4 (5th Cir. 2006) (quoting Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000)).
Fabrication Manager, Level J — Plaintiff applied for this position in July 2000. The job posting stated that Boeing preferred the applicants to have a "[c]ertificate of training in welding, heavy structures, basic/advanced structure sheet metal. Know heat-treat process of aircraft parts per DPS/BAC and weld MIL-STD 1595A along with a good working knowledge in the areas of responsibility listed above." The job posting also expressed a desire for an Associate's Degree in Business or job-related discipline. Boeing received fifteen applications for the Fabrication Manager position, which it ranked according to five categories: (1) education, (2) aircraft back shop management experience, (3) whether the person was certified in "MIL-STD" and welding, (4) experience in heat treating processes, and (5) computer skills. The screening worksheet shows that Plaintiff did not have the MIL-STD certification and welding or experience in heat treatment processes. The applicant ultimately promoted, Lyle Pierce, had experience in each of the five areas, therefore, he received a higher overall score than Plaintiff. In his Response, Plaintiff does not allege that he has the MIL-STD certification and welding or experience in heat treatment processes. Rather, he simply asserts that Mr. Pierce was less qualified for the position than Plaintiff because Mr. Pierce only had 13 years of welding and aircraft experience compared to Plaintiff's 25 years of experience.
Appendix to Def. MSJ (Docket No. 44), Exhibit E, Bouse Affidavit, Attachment 9: Job Announcement.
Appendix to Def. MSJ (Docket No. 44), Exhibit E, Bouse Affidavit, Attachment 9: Job Announcement.
Appendix to Def. MSJ (Docket No. 44), Exhibit E, Bouse Affidavit, Attachment 10: Hiring Manager Screening Worksheet.
Appendix to Def. MSJ (Docket No. 44), Exhibit E, Bouse Affidavit, Attachment 10: Hiring Manager Screening Worksheet.
Appendix to Def. MSJ (Docket No. 44), Exhibit E, Bouse Affidavit, Attachment 10: Hiring Manager Screening Worksheet.
Structures Lead Man — Isaac Lopez, the Multi-Discipline Family Manager M at Boeing, testified in his affidavit that he selected Troy Rhea for the Structures Lead Man position (regarding the KC-135 aircraft) "because I believe he exhibited excellent leadership qualities, work ethic, and was a self-starter." Mr. Lopez also noted that "I assigned Martinez several additional responsibilities, and let him lead a small crew on a trial basis . . . Martinez was not able to complete the assignments in a timely manner, exhibited a poor attitude toward his work, and his work product was only average." Plaintiff argues that based on his 25 years of experience generally in the industry, his prior experience as a Lead Man, and his two years of experience with Boeing made him more than qualified for this position. However, Plaintiff claims that Boeing chose a less qualified Caucasian man for the position.
Appendix to Def. MSJ (Docket No. 44), Exhibit F, Lopez Affidavit at ¶ 2.
Appendix to Def. MSJ (Docket No. 44), Exhibit F, Lopez Affidavit at ¶ 2.
Plaintiff served as a Lead Man during his employment at Lear Siegler. See Pl. Response to Def. MSJ (Docket No. 51); Exhibit B, Martinez Deposition at p. 32. Plaintiff was also temporarily assigned the position of Lead Man from about December 1999 to March 2000. See Pl. Response to Def. MSJ (Docket No. 51); Exhibit B, Martinez Deposition at p. 32.
The Fifth Circuit has stated that "[a] fact finder can infer pretext if it finds that the employee was "clearly better qualified" (as opposed to merely better or as qualified) than the employees who are selected." As to the position of Fabrication Manager, Level J, the Court finds that Plaintiff has not met his burden to show that Defendant's stated reason for failing to promote him was pretext. Plaintiff has also not offered sufficient evidence that he was "clearly more qualified" than Mr. Pierce. However, the Court is of the opinion that Plaintiff has created a genuine issue of material fact regarding the Structures Lead Man position. The Court notes that for each of the other positions, Defendant articulated which qualifications it sought, and demonstrated how the person selected was better qualified for the position than Plaintiff. Defendant offered no such objective criteria for the Lead Man position, and as stated above, Plaintiff has at least created a genuine issue of material fact as to whether he was "clearly more qualified" for this position. Therefore, the Court is of the opinion that Defendant's Motion should be GRANTED as to the Fabrication Manager, Level J position and DENIED as to the Structures Lead Man position.
EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1444 (5th Cir. 1995).
Hostile Work Environment
A hostile work environment claim consists of the following elements: "(1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term[,] condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action." "For harassment to affect a term, condition, or privilege of employment, it must be both objectively and subjectively abusive. In analyzing a hostile work environment claim, no single factor is required. Instead, courts look to many factors, including: "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating as opposed to a mere offensive utterance; (4) whether it unreasonably interferes with an employee's work performance; and (5) whether the complained-of conduct undermines the plaintiff's workplace competence." In order to survive summary judgment, the harassment must be so "severe and pervasive" that the employee is essentially prevented from succeeding in the workplace.
Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002) (citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001)).
Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367 (1993)).
Id.
Id. at 326 (citations omitted).
Id.
This Court has previously noted that "[c]ourts in the Eastern and Northern Districts of Texas have held that a hostile work environment claim requires proof of a `steady barrage of opprobrious racial comments' and not of a `few isolated incidents of racial enmity."' In this case, Plaintiff complains of (1) a verbal exchange with an independent contractor and (2) graffiti on the bathroom walls. Plaintiff gives an example of an incident in July 2000, an independent contractor, Mr. Dennis Moore, interrupted a conversation between Plaintiff and Lead Man Paul Marr. Plaintiff claims that Mr. Moore "began criticizing and making racial slurs, calling Plaintiff, among other things, a `f____ Mexican'" and he also made derogatory remarks toward Hispanic women. Plaintiff also asserts in his Response that he complained to human resources of this and other verbal harassment and derogatory comments, but no action was taken and the harassment continued. Plaintiff also testified that Mr. Moore was the only employee at Boeing who made racially derogatory slurs to him. Plaintiff further noted that the incident with Mr. Moore did not cause him to miss any work, affect his pay, benefits or job responsibilities, nor did Plaintiff seek mental health counseling as a result of the incident.
Hernandez v: Texas Dept. of Public Safety, No. SA-02-CA-0566-RF, 2005 WL 356855, *4 (W.D.Tex Jan. 5, 2005) (citing Padilla v. Carier Air Conditioning, 67 F.Supp.2d 650, 659 (E.D.Tex. 1999); Williams v. Dallas Independent School District, 2003 WL21673474, *2 (N.D.Tex. 2003); see Jeffrey v. Dallas County Medical Examiner, 37 F.Supp.2d 525, 531 (N.D.Tex. 1999), stating that an actionable claim requires "a long pattern of extensive, unredressed threats or conduct that permeates the work environment.").
Pl. Response to Def. MSJ (Docket No. 51) at p. 3.
Pl. Response to Def. MSJ (Docket No. 51); Exhibit B, Martinez Deposition at p. 118.
Plaintiff also complains that Defendant permitted racially derogatory graffiti to remain on the bathroom walls. In his Response, Plaintiff states that Defendant did not remove the graffiti in a timely fashion, at times leaving it for weeks or months. After an investigation into Plaintiff's complaints, the EEOC issued a for cause finding on Plaintiff's hostile work environment claim. The determination letter stated that "[t]here is reasonable cause to conclude the nature and frequency of the discriminatory comments, coupled with Respondent's failure to take prompt, corrective action regarding this conduct created a hostile work environment in violation of Title VII." In light of the EEOC's findings, the Court is of the opinion that Plaintiff has created a genuine issue of material fact as to at least one or more elements of his hostile work environment claim. Therefore, the Court finds that Defendant's Motion for Summary Judgment on Plaintiff's claim of hostile work environment in violation of Title VII should be DENIED.
Pl. Response to Def. MSJ (Docket No. 51); Exhibit G, EEOC Determination Letter at p. 2.
Pl. Response to Def. MSJ (Docket No. 51); Exhibit G, EEOC Determination Letter at p. 2.
CONCLUSION
For the foregoing reasons, the Court is of the opinion that Plaintiff has failed to create a genuine issue of material fact as to one or more elements of some of his claims. Therefore, the Court finds that Defendant's Motion for Summary Judgment (Docket No. 43) should be GRANTED IN PART AND DENIED IN PART. It is therefore ORDERED that Defendant's Motion for Summary Judgment should be GRANTED as to Plaintiff's claims for (1) violations of the Thirteenth Amendment, (2) violations of 42 U.S.C. § 1981 (retaliation), and (3) intentional infliction of emotional distress. It is further ORDERED that Defendant's Motion is GRANTED as to Plaintiff's claims for failure to promote regarding the positions of: (1) Manufacturing Multi-Discipline Manager; (2) Back Shop Flight Control Manager, Level K; (3) Fabrication Manager, Level J; and (4) Business and Planning Analyst 3. It is further ORDERED that Defendant's Motion for Summary Judgment is DENIED as to Plaintiff's failure to promote claim regarding the position of Lead Man and as to Plaintiff's hostile work environment claim.
It is so ORDERED.