Opinion
NO. 3-01-CV-1012-D
August 26, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Oncor Energy Delivery Company has filed a motion for summary judgment in this pro se race discrimination and retaliation case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. For the reasons stated herein, the motion should be granted.
I.
Plaintiff Gerald G. Monroe, an African-American, was hired as a meter reader by Dallas Power and Light Company ("DP L"), the predecessor to Texas Utilities Company ("TXU"), in December 1978. (Def. MSJ App. at 70). By all accounts, the first 20 years of his employment were rather uneventful. Plaintiff did apply for various positions within the TXU family of companies between 1993 and 1998, but was not selected for any of them. ( See id. at 20-21, ¶¶ 4 5). On October 16, 1998, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that he had been "denied seven positions" on account of his race. ( Id. at 101). The EEOC declined to conduct a formal investigation and issued a right-to-sue letter on March 16, 1999. ( Id. at 102). No legal action was initiated by plaintiff at that time.
TXU Electric Company, a subsidiary of TXU, was the predecessor to Defendant Oncor Energy Delivery Company. (Def. MSJ App. at 1-2, ¶ 3).
Plaintiff began to experience problems with customers, supervisors, and co-workers after filing his EEOC charge. The first incident occurred in March 1999, when plaintiff entered the backyard of a TXU customer to read her meter. The customer, who was home alone with her daughter, asked plaintiff to come to the front door and demanded to see his identification. (Id. at 11-12, ¶ 3). Plaintiff refused and told the customer she had no right to touch his ID badge. (Id.). This upset the customer who complained to TXU. (Id. at 12, ¶ 4). Plaintiff was counseled regarding his behavior and reminded that he must show his ID badge to a customer if asked. (Id.).
On September 3, 1999, plaintiff went to a school for disadvantaged children to read a meter. (Id. at 3, ¶ 7 12, ¶ 5). Because the meter was locked in a building across the street, plaintiff knocked on the front door of the school for assistance. After a few minutes, a young man approached the door but refused to let plaintiff inside. Plaintiff became angry and frustrated. He demanded entry, telling the young man that he was "with TXU and what they were doing was discrimination and that was `Bull Shit' and it was against the law to discriminate against anyone." (Id.). Several days later, a school representative contacted TXU to complain about plaintiffs behavior and use of obscene language. Following an investigation by the Human Resources Department, plaintiff was placed in Step Two of TXU's Positive Discipline Program for 12 months and formally reprimanded for his conduct. (Id.). This written reprimand states, in pertinent part:
Step Two discipline includes, inter alia, a written reminder of company policies and a restriction of job duties to minimize customer interaction. (See Def. MSJ App. at 4, ¶¶ 8 9).
As we discussed last week, your job responsibility includes effective communication with our customers and we cannot allow our employees to be unprofessional, disrespectful, or confrontational.
As a result of your continued failure to establish and maintain satisfactory performance . . . the consensus decision was made to place you on Step 2 of the Discipline Program, which is in effect for 12 months . . .
It is very important that you fully understand the seriousness of this disciplinary action. It is essential that you conduct yourself in a professional and courteous manner when dealing with others, including outside customers. Failure to demonstrate immediate and continued satisfactory performance may result in another step of discipline or possible termination.
* * * *
(Id. at 5, ¶ 9). When the reprimand was read aloud to plaintiff in a meeting on September 29, 1999, he became angry and belligerent. Plaintiff shouted to his supervisor, Joe Gandy, "Bull Shit — it will not stand!" ( Id. at 5, ¶ 9 13, ¶ 6). Gandy asked plaintiff to quiet down and warned that he would be suspended if his disrespectful behavior continued. Undeterred, plaintiff told Gandy, "You can't do that — I'll go over your head." (Id.). The meeting ended with plaintiff being suspended. (Id.).
Plaintiff also told Gandy that "someone could just come in here and shoot this place up!" (Def. MSJ App. at 5, ¶ 9). After being warned against making such a threat, plaintiff responded that "he didn't say he was going to do it, `but that someone else could.'" (Id.) (emphasis in original).
On January 27, 2000, after his suspension was lifted but while still on Step Two discipline, plaintiff confronted Ronnie Guinyard, a TXU Meter Reading Coordinator, and accused Guinyard of changing his schedule from a driving route to a walking route. (Id. at 6, ¶ 10 13, ¶ 7). Guinyard denied making the change and instructed plaintiff to do his route as assigned. (Id. at 6, ¶ 11 13, ¶ 7). Plaintiff refused. Instead, plaintiff approached Guinyard in a threatening manner, called him a "mother f —," and invited him to step outside so he could "kick his ass." (Id. at 6-7, ¶ 12 13-14, ¶ 7). As a result of this incident, which was witnessed by at least eight employees, plaintiff was terminated for using abusive and profane language and threatening a co-worker. (Id. at 7, ¶ 13 13-14, ¶ 7). Plaintiff was informed of this decision on February 14, 2000. (Id.).
Believing that he was fired in retaliation for filing a previous charge of discrimination, plaintiff filed a second EEOC charge on September 25, 2000. (Id. at 104). This charge was also dismissed. (Id. at 105). Plaintiff was notified of his right-to-sue on February 26, 2001 and filed suit in federal district court on May 29, 2001. Defendant now moves for summary judgment as to all claims and causes of action. Plaintiff was directed to file a response to the motion by July 24, 2003, but has failed to do so. The court will therefore consider the summary judgment motion without the benefit of a response.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202(1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993);
Reid v. State Farm Mutual Automobile Insurance Co., 784 F.2d 577, 578 (5th Cir. 1986). However, conclusory statements, hearsay, and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
In his amended pro se complaint, plaintiff alleges that he was denied various promotions on account of his race during his 22-year employment with TXU. Plaintiff also claims that he was "harassed and provoked into adverse action when lied to by supervisors concerning [his] work assignment" which ultimately led to his termination. (Plf. Am. Compl. at 1). Consistent with the two EEOC charges filed by plaintiff, defendant construes these allegations as an attempt to state a failure to promote claim and retaliation claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.Defendant now moves for summary judgment on the grounds that: (1) plaintiff's failure to promote claim is barred by limitations; and (2) plaintiff cannot establish a causal link between his protected activity and the subsequent adverse employment action. The court will consider these arguments in turn.
Because plaintiff has not responded to the summary judgment motion, the court will accept the evidence submitted by defendant as undisputed. Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.).
A.
Plaintiff first accuses defendant of failing to promote him to various positions within the TXU family of companies on account of his race. The summary judgment evidence shows that plaintiff applied for the following positions between 1993 and 1998: (1) Meter Tester in September 1993 and March 1996; (2) Customer Service Representative in February 1995; (3) Transmission and Distribution Dispatcher/Technician in September 1995; (4) Transmission and Distribution Meter Technician, Lead in March 1996; (5) Telecom Technician in December 1996; (6) EnvironmentalRegulatory Coordinator in August 1998; and (7) miscellaneous Human Resources positions in April, July, and August 1998. (Def. MSJ App. at 20, ¶ 4). With one exception, plaintiff was not interviewed or considered for any of these jobs. (Id. at 20-21, ¶ 4). This adverse employment action formed the basis of plaintiff's first EEOC charge filed on October 16, 1998. Although a right-to-sue letter was issued on March 16, 1999, plaintiff did not file suit on his failure to promote claim until May 29, 2001.
Plaintiff was interviewed for one of the Human Resources positions. (Def. MSJ App. at 20-21, ¶ 4).
Defendant correctly notes that this claim is barred by limitations. Under Title VII, an aggrieved party must file a civil action within 90 days after receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(e)(1); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Here, plaintiff waited more than two years to file suit on his failure to promote claim. Consequently, defendant is entitled to summary judgment on this ground.
B.
Plaintiff further alleges that he was terminated in retaliation for filing a prior charge of discrimination. In order to prove a prima facie case of retaliation, plaintiff must show that: (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse employment action. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092(5th Cir. 1995). Once the plaintiff establishes a prima faciecase of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for its decision. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Plaintiff must then show a conflict in substantial evidence by which the trier of fact could find that he would not have suffered the adverse employment action "but for" engaging in protected activity. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996). See also Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996).
Although plaintiff does not specifically allege retaliation in his amended pro se complaint, this is the only basis for discrimination raised in the EEOC charge filed on September 25, 2000. (Def. MSJ App. at 104). To the extent that plaintiff can maintain a Title VII action under any theory, it must be for retaliation.
Plaintiff has failed to adduce any evidence of a causal link between his October 16, 1998 charge of discrimination and February 14, 2000 termination. This 15-month delay is far too attenuated to support an inference of retaliation. See generally, Clark County School Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case [of retaliation] uniformly hold that the temporal proximity must be Very close.'"); see also Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 685 (8th Cir. 2001) (seven-month lapse too long for incidents to be temporally and causally related); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month period insufficient to establish causal connection); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (lapse of 10 months between protected activity and subsequent adverse employment action suggests that retaliatory motive was "highly unlikely"); Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (same). Nor has plaintiff shown that the reason proffered by defendant for terminating his employment — using abusive and profane language and threatening a co-worker — was a pretext for retaliation. Based on the uncontroverted evidence, plaintiff's retaliation claim fails as a matter of law. See, e.g. McKinney v. Texas Dep't of Transportation, 167 F. Supp.2d 922, 927 (N.D. Tex.) (Fitzwater, J.), aff'd, 31 Fed.Appx. 152 (5th Cir. 2001) (Table) (plaintiff terminated for making threatening statement during meeting); Sarff v. Continental Express, 894 F. Supp. 1076, 1083 (S.D. Tex. 1995), aff'd, 85 F.3d 624 (5th Cir. 1996) (Table) (employer has right to terminate employees "who are continually disruptive and inappropriate, particularly after the employees have been given notice of their wrongdoing").
RECOMMENDATION
Defendant's motion for summary judgment should be granted in its entirety. This case should be dismissed with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of defendant's motion for summary judgment in the above styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Am, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).