Opinion
CASE NO. 3:01-CV-0056
February 28, 2003
Donald W. Hill, Dallas, TX, For Plaintiffs.
John Gray Harrison, Anne Patricia, Terwilliger of Ogletree, Deakins, Nash, Smoak Stewart, Dallas, TX, For Defendants.
MEMORANDUM OPINION AND ORDER
Defendant Kimberly-Clark Corporation ("Kimberly-Clark") has filed a Motion for Summary Judgment (Docket No. 36). Having considered the parties' submissions and applicable law, the Court finds that Defendant's Motion for Summary Judgment should be GRANTED IN PART and DENIED IN PART.
BACKGROUND
Kimberly-Clark is a global manufacturer of consumer products. Plaintiff Tommy Ridley ("Ridley"), an African-American, was an assistant production operator or machine operator at Kimberly-Clark's Paris, Texas facility. In early to mid-October 2000, Kimberly-Clark provided a diversity training to all employees covering Kimberly Clark's prohibition against making racial comments in the workplace. On October 28, 2000, the machine on which Ridley was assigned malfunctioned. Ridley's co-worker, David Brady ("Brady") remarked that "the machine's never going to run the way we-ve got it nigger-rigged." In deposition testimony, Ridley stated that he and Brady "got along pretty good" and that the comment was not directed toward anyone, but Ridley found it offensive.
On October 30, 2000, Ridley notified Operations Manager Rob Beattie ("Beattie") of Brady's comment and Kimberly-Clark gave Brady a written warning. Ridley does not complain of any other racial comments or misconduct by Brady or any other employees during his eight and one-half years of employment.
Kimberly-Clark's Paris facility operates 24 hours per day and assistant production operators, like Ridley, work 12-hour shifts, either 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m. An employee's hours are recorded automatically into Kimberly-Clark's computer system. If an employee is late to work, it his responsibility to change the hours in the computer. Kimberly-Clark's personnel guidelines prohibit the falsification of time records and lying to management.
The Paris facility does not maintain a procedure by which employees must punch in and out. Rather, there are recorded automatically in accordance with the work schedule.
Kimberly-Clark's Paris facility has discharged seven Caucasian and one Hispanic employee for dishonesty, theft, or falsification of records between July 1, 1995 and January 16, 2001.
On January 6, 2001, Ridley was scheduled to begin his shift at 7:00 a.m. At 6:58 a.m., Ridley called Kimberly-Clark's shift associate and informed him that he was running late. The Shift Superintendent then waited by the entrance for Ridley's arrival. At 7:12 a.m., Ridley had not arrived, and the Shift Superintendent left the area. The Team Leader then saw Ridley arrive at the facility at 7:15 a.m. and he noted this in a log. Ridley claims that he was at work at approximately 6:58 a.m., picked up his tools, and went to his machine. The first thing Plaintiff did when he arrived at his machine was sign in on the inspection stand. Ridley wrote "7:10" on the sign in sheet.
Ridley has provided an affidavit of Connie Chamberlein, an employee of Kimberly-Clark, stating that she saw Ridley at work at approximately 6:57 a.m. on January 6, 2001.
In the proceeding days, Ridley was confronted by management regarding the time discrepancy. Ridley denied being late and refused to change his time record. On January 16, 2001, Kimberly-Clark terminated Ridley's employment when it concluded that he was late to work on January 6, 2001, failed to account for his late arrival, and lied to company officials regarding his tardiness.
On January 18, 2001, Ridley filed a retaliation charge with the EEOC based upon his January 16, 2001 termination. The EEOC investigated this allegation but found no cause to believe a violation of Title VII had been committed and dismissed the charge. On November 21, 2001, Ridley filed the instant lawsuit alleging racial discrimination in violation of 42 U.S.C. § 1981, 2000e(a) and (d), and 2000e-5(f) et seq., and in retaliation for his opposition to Kimberly Clark's allegedly discriminatory practices.
On January 6, 2003, Kimberly-Clark filed the instant motion for summary judgment on all of Ridley's claims. Specifically, Kimberly-Clark contends that summary judgment is warranted because: (1) Ridley's EEOC charge references only retaliation, not discrimination and, therefore, he failed to exhaust his administrative remedies; (2) Ridley did not engage in a protected activity because no reasonable person could believe that a single racial comment describing a machine would result in liability to Kimberly-Clark; (3) Ridley cannot establish the required causal connection between the termination and his race or claimed protected activity; and (4) Ridley cannot show each of Kimberly-Clark's legitimate, non-discriminatory, and non-retaliatory reasons for the discharge were pretextual.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of "informing the Court of the basis of its motion" and identifying those portions of the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Once the moving party meets its burden, the nonmoving party must "go beyond the pleadings" and designate "specific facts" in the record "showing that there is a genuine issue for trial." Id. at 324. An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
The primary inquiry here is whether the material facts present a sufficient disagreement as to require a trial, or whether the facts are sufficiently one-sided that one party should prevail as a matter of law. Anderson, 477 U.S. at 251-52. The substantive law of the case identifies which facts are material. Id. at 248. Only disputed facts potentially affecting the outcome of the suit under the substantive law preclude the entry of a summary judgment. Id. Mere conclusory allegations, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The Court first addresses Defendant's exhaustion of administrative remedies argument. Defendant contends that Ridley is limited in the issues that he can bring forth to this Court by his charge filed with the EEOC and the factually related issues that could be reasonably expected to grow out of the EEOC's investigation of the charge.
A condition precedent to bringing suit on an employment discrimination claim is the timely filing and exhaustion of an EEOC charge. Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). The scope of the lawsuit thereafter extends no further than the scope of the investigation that can reasonably be expected to grow out of the charge of discrimination. Id; Fine v. GAF Chem. Corp., 995 F.2d 576, 577-78 (5th Cir. 1993). A Title VII cause of action, however, may be based
not only on the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.Id. at 578 (quoting Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983)). The determination is driven by the competing policies of promoting the "voluntary settlement of all issues without an action in the District Court," and expanding the scope of the lawsuit to recognize "the remedial and humanitarian underpinnings of [Title VII]." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467 (5th Cir. 1970).
For the reasons that follow, the court determines that Ridley has not exhausted his administrative remedies for his claim of race discrimination based on his termination. In Ridley's EEOC charge, he alleges that he was discharged from his job with Kimberly-Clark in retaliation for opposing a discriminatory act. On the charge form, Ridley checked the box labeled "Retaliation," while leaving all other boxes blank, including "Race." He specifically states "I believe I have been retaliated against for opposing a discriminatory act, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that I was treated differently than my co-workers in a similar situation."
Nowhere in the charge does Ridley allege that he has been discriminated because of his race. Therefore, because Ridley set forth only an allegation of retaliation in his EEOC charge, he is precluded from maintaining an additional claim of racial discrimination under Title VII. See, e.g., Foster v. Tex. Health Sys., 2002 WL 1461737, at *5-6 (N.D.Tex. Jan. 30, 2002); Malik v. Motorola, Inc., 1997 WL 160195, at *3 (N.D.Tex. Mar. 31, 1997) ; Lee v. The Kroger Co., 901 F. Supp. 1218, 1223-24 (S.D.Tex. Sept. 15, 1995); accord Williams v. Little Rock Mun. Water Works, 21 F.3d 218 (8th Cir. 1994). Accordingly, no genuine issue of material fact exists regarding the exhaustion of administrative remedies, and Kimberly-Clark is therefore entitled to judgment as a matter of law on the racial discrimination claim brought under Title VII.
RETALIATION
Ridley contends that Kimberly-Clark retaliated against him because he reported to management that a co-worker used the word "nigger-rigged" when describing a machine. Kimberly-Clark denies that it retaliated against Ridley, and contends that Ridley cannot meet his burden to establish retaliation.
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees" who had either availed themselves of Title VII's protections or assisted others in so doing. See 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burden-shifting framework applies to Title VII retaliation cases, in which a plaintiff presents only circumstantial evidence of retaliatory animus, as has Ridley in this case. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). Preliminarily the plaintiff must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Once a prima facie is made, a presumption of discrimination arises, and the burden of production shifts to the employer to respond with a legitimate, nondiscriminatory reason for its decision. McDonnell Douglas, 411 U.S. at 802. If the employer carries its burden, the presumption of discrimination dissipates and the burden of production then shifts back to the plaintiff to demonstrate that the defendant's articulated reason was merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511-12 (1993). Although the McDonnell Douglas framework shifts the burden of production between the plaintiff and the defendant, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citation omitted).
To prove a prima facie case of retaliation under Title VII and defeat summary judgment, Ridley must demonstrate that: (1) he engaged in activity protected by Title VII; (2) he experienced an adverse employment action following the protected activity; and (3) a casual link existed between the protected activity and the adverse employment action. Mota v. University of Texas Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001); Long v. Eastfield College, 88 F.3d 300, 305 n. 23 (5th Cir. 1996). In other words, Ridley must prove that he would not have been terminated but for his complaint.
Kimberly-Clark maintains that Ridley cannot establish the first or third elements of the prima facie case of retaliation. First, Kimberly-Clark contends that Ridley did not engage in a protected activity. Second, Kimberly-Clark argues that Ridley cannot establish a causal connection between his claimed protected activity and his discharge. Since the Court finds that Ridley did not engage in a protected activity, the Court does not reach Kimberly-Clark's second argument.
i. Protected Activity
An employee has engaged in an 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. 42 U.S.C. § 2000e-3(a); Byers v. The Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). Here, the "participation clause" is irrelevant because Ridley did not file a charge with the EEOC until after the alleged retaliatory discharge took place. Id. To satisfy the"opposition clause" of § 2000e-3(a) requires the employee to demonstrate that he had at least a "reasonable belief" that his employer was engaged in unlawful employment practices. Id.; Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981).
The Court finds that Ridley has not met his burden. The evidence demonstrates that on one occasion Ridley reported to management that a co-worker used the word "nigger-rigged" when describing a machine. Even viewing this evidence in the light most favorable to Ridley, this Court holds that he has failed to present sufficient evidence showing that his alleged complaint of Kimberly-Clark's race discrimination was objectively reasonable. See, e.g., Byers, 209 F.3d at 428. Ridley did not engage in a protected activity because no reasonable person could believe Kimberly-Clark would be deemed to have committed an unlawful employment practice by virtue of a single isolated comment used to describe a machine and not addressed to any person, from a co-worker with whom Ridley, by his own admission, had no other problems. Even though the language was obviously offensive, no reasonable person could have believed that the single incident recounted above violated Title VII's standards. Accordingly, the Court finds that the opposition clause requirements have not been satisfied and that Ridley has failed to establish a prima facie case of unlawful retaliation. Therefore, the Court need not proceed to the second and third prongs of the McDonnell Douglas framework.
SECTION 1981 CLAIM
Kimberly-Clark did not adequately brief Ridley's section 1981 claim for racial discrimination. Accordingly, the Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's section 1981 claim.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's Title VII claims for racial discrimination and retaliation. Further, the Court finds that Defendant's Motion for Summary Judgment is DENIED as to Plaintiff's claim for racial discrimination under section 1981.
IT IS SO ORDERED.
SIGNED this 28th day of February, 2003.