Opinion
Civil No. SA-98-CA-967-OG.
August 25, 1999.
MEMORANDUM AND RECOMMENDATION
In his sole claim, plaintiff Kenny Sauer alleges retaliatory discharge under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., as amended, based on his status as a third party whom the defendant perceived to have participated in an ADEA proceeding instituted by a former co-worker, his father. Defendant contends in its motion for summary judgment (docket no. 19) that plaintiff cannot establish a prima facie case because there is no evidence to show that plaintiff participated in his father's ADEA proceeding. Defendant also contends that plaintiff cannot establish that the legitimate, non-discriminatory reasons for terminating plaintiff were a pretext for discrimination. The Court agrees, and will recommend that the motion for summary judgment be granted.
Factual Background
Plaintiff Kenny Sauer worked as a full-time paint salesman, from 1983 to 1998, at a paint store in San Antonio that was eventually acquired by defendant The Glidden Company d/b/a ICI Paints (ICI). From 1985 to 1997, plaintiff's immediate supervisor was his father, George Sauer. Other family members worked at ICI, including plaintiff's brother, Jeff Sauer, and plaintiff's cousin, Gary Riley. George Sauer's position was eliminated and he was discharged on August 4, 1997, at which time plaintiff began reporting to Lionel "Butch" Rivers. Mr. Rivers left the company in December 1997, at which time plaintiff began reporting to Lou Morrow. On July 31, 1998, Jeff Sauer and Mr. Morrow left the company and plaintiff began reporting to Mark Berryman who, at the direction of his supervisor, Phillip Baldwin, terminated plaintiff's employment on August 6, 1998.
Meanwhile, George Sauer filed a charge of discrimination with the EEOC on September 4, 1997, alleging that ICI violated his rights under the ADEA. George Sauer filed suit against ICI on January 12, 1998. In late 1998, George Sauer began operating his own paint store under the name Sauer's Paint and Supplies (SPS). Plaintiff began working with his father on the new store, and on December 10, 1998, plaintiff received his first paycheck from SPS.
Plaintiff contends that ICI believed that plaintiff was providing company information to his father for his father's competing business and to assist in his father's lawsuit. Plaintiff asserts a claim of retaliatory discharge under the ADEA as a third party that was perceived to have participated in proceeding under the ADEA.
Summary Judgment
Federal Rule of Civil Procedure 56(b) provides that a defending party may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor. Summary judgment shall be rendered if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for 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, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The party opposing a motion must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial; if he does not so respond, summary judgment, if appropriate, shall be entered against him. Fed.R.Civ.P. 56(e).
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-248, 106 S.Ct. at 2510. The dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id . All of the evidence and inferences drawn from that evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Hibernia National Bank v.Carner, 997 F.2d 94, 97 (5th Cir. 1993).
Retliatory Discharge Under The ADEA
The ADEA prohibits age discrimination against persons in the work place that are 40 of age or older by employers subject to the Act. 29 U.S.C. § 623(a)(1) (West 1999). The ADEA protects employees from retaliation for opposing acts of age discrimination or for charging, testifying, assisting, or participating in any manner in an investigation, proceeding, or litigation under the ADEA. 29 U.S.C. § 623(d). Although § 623(d) prohibits retaliation against an employee, § 623(d) has been interpreted by the Fifth Circuit to allow third parties to sue under the ADEA if "they have engaged in the enumerated conduct" on behalf of another person's claim under the ADEA. Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226 (5th Cir. 1996), cert. denied, 520 U.S. 1229, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997)
In order to establish a prima facie case of retaliation, a plaintiff must show that (1) the plaintiff engaged in activity protected by Title VII, (2) an adverse employment action occurred, and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The well-established framework for analyzing a claim of employment discrimination under Title VII of the Civil Rights Act of 1964 applies to claims under the ADEA. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Thus, once the plaintiff establishes a prima facie case of retaliation, the defendant then has the burden to articulate a legitimate, non-retaliatory reason for the adverse employment action. Long, 88 F.3d at 304-305. If the defendant articulates a non-retaliatory reason, then the plaintiff must establish that the conduct protected by Title VII was a "but for" cause of the adverse employment action, which is the ultimate issue of retaliation. Id . at 305 n. 4. The burden of proving "but for" causation is much more onerous than establishing the "causal link" in the prima facie case. Sherrod, 132 F.3d at 1122 n. 8. In order to withstand a motion for summary judgment, the plaintiff must reveal a conflict in substantial evidence on the ultimate issue of retaliation. Sherrod, 132 F.3d at 1122.
Discussion
1. Actual Involvement
ICI contends that plaintiff cannot establish a prima facie case because he did not engage in protected conduct. The activities protected by the ADEA fall into two broad categories — opposition and participation. Plaintiff asserts in his response that he voiced his opposition to ICI's treatment of his father, citing to pages 69 and 70 of his father's deposition. That deposition testimony pertains to a copy of a note addressed to Jim Greathouse, a divisional vice president of ICI, that was sent to plaintiff's father. Response, Exh. C, pp. 69-70. It does not appear that the note has anything to do with opposition to discriminatory practices. Also, that is the same evidence that plaintiff contends shows that his father had information that could have only come from sources inside ICI. Response, p. 4. Therefore, the Court finds that there is no evidence to show that plaintiff engaged in protected activity in the form of opposing discrimination.
ICI contends that plaintiff cannot show that he engaged in protected conduct because he did not participate in his father's ADEA claim and suit against ICI. In support of its argument, ICI cites to plaintiff's deposition testimony where he denied providing to his father sales and expense figures of ICI. Mot. S/J, Appendix, K. Sauer Depo., pp. 63-64. ICI is correct that participation activity in a retaliation context includes making a charge, testifying, assisting or participating in any manner in any investigation, proceeding, or hearing. Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (setting forth activities that constitute "participation" under Title VII); See Holt v. JTM Indus., Inc., 89 F.3d at 1226 n. 1 (since their anti-retaliation provisions are similar, Title VII cases are frequently used in interpreting the ADEA). If actual participation is required, then plaintiff cannot establish the first element of a prima facie case.
2. Perceived Involvement
Plaintiff contends that the definition of "participation" should be broadly interpreted to include situations where a defendant takes retaliatory actions based on the defendant's mistaken perception that the plaintiff participated in an employment discrimination case. Neither party has provided case law that would preclude a broad interpretation of the term "participate." ICI cites Holt v. JTM, supra, and points out that plaintiff must establish that he engaged in protected conduct. In Holt, the Fifth Circuit held that a plaintiff does not automatically have standing to sue for retaliation when a relative or friend engages in protected activity. 89 F.3d at 1226.
That does not, however, preclude a finding of "participation" where the defendant mistakenly perceived the plaintiff to have had some involvement in protected conduct. Although not directly on point, language in a Fifth Circuit opinion supports a broad interpretation of "participation" to include perceived participation. In Balazs v. Liebenthal, the court held that the plaintiff could not establish a retaliation claim under Title VII resulting from the filing of a prior claim where the prior claim was not cognizable under Title VII. 32 F.3d 151, 159 (5th Cir. 1994). The Balazs court cited with approval language from a Ninth Circuit case, Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988), cert. denied, 489 U.S. 1079, where the court held that a claim of retaliation under Title VII that is based on an employee's involvement in some sort of discrimination must be reasonably perceived as discrimination prohibited by Title VII. 32 F.3d at 159. Since the provisions of statutes prohibiting employment discrimination are read broadly, the Court finds that plaintiff's suggested interpretation is appropriate. See McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) ("It does no great violence to the statutory language to construe 'he has made a charge' to include 'he was suspected of having made a charge . . .'). In the absence of controlling authority to the contrary, the Court finds that plaintiff may establish the first element of a prima facie case with evidence that ICI mistakenly perceived that plaintiff participated in his father's ADEA case.
Plaintiff's contention that ICI mistakenly perceived that he participated in his father's ADEA case is based on evidence that plaintiff's father was asked at his deposition about plaintiff's knowledge and opinion about his suit against ICI. Response, Exh. C, pp. 158-159. As mentioned earlier, it was revealed in George Sauer's deposition that he had a copy of a note directed to an ICI vice president, which plaintiff asserts could have only come from sources inside ICI. However, George Sauer stated that he did not recall who sent him that document. Response, Exh. C, p. 70. Plaintiff contends that his denial of having passed ICI sales and expense data to his father does not relieve ICI of liability for retaliation against plaintiff based on ICI's mistaken belief that plaintiff provided such information. Plaintiff is correct, but it is plaintiff's burden to prove that ICI in fact had a mistaken belief that plaintiff his father sales and expense data. When plaintiff was asked why he believes that ICI perceived that he passed company information to his father, plaintiff stated "I have no idea." Mot. S/J, Appendix, K. Sauer Depo., pp. 63-64.
The Court finds that plaintiff failed to show that ICI mistakenly perceived that he participated in his father's ADEA case. The Court also finds that reasonable minds could not differ as to whether plaintiff established the mistaken perception that plaintiff must prove. Therefore, the Court finds that plaintiff failed to establish the first element of his prima facie case. Accordingly, plaintiff cannot prove his claim of retaliatory discharge, and the motion for summary judgment should be granted on that basis.
Even if plaintiff established that ICI had perceived that plaintiff revealed sales and expense information as plaintiff contends, it does not insure that plaintiff could establish that ICI perceived that he engaged in protected conduct. If, as an action taken in opposition to an employer's perceived discriminatory practices, an employee reveals confidential information, then the Court must balance the right of ICI to run its business against the right of plaintiff to oppose discrimination. Douglas v. Dyn McDermott Petrol. Operations Co., 144 F.3d 364, 373-74 (5th Cir. 1998), cert. denied, ___ U.S.___, 119 S.Ct. 798, 142 L.Ed.2d 660 (1999). If plaintiff's actions are unreasonable under the circumstances, then plaintiff's form of opposition is not protected. Id., at 374. The evidence is clear that plaintiff's father, George Sauer, was working toward opening his paint store before ICI terminated him. The Court finds that supplying George Sauer, a competitor of ICI, with ICI's sales and expense data would be an unreasonable form of opposition to any employment practices of ICI. Therefore, if ICI believed that plaintiff supplied George Sauer with sales and expense data, it would have merely believed that plaintiff engaged in unprotected conduct. Accordingly, plaintiff could not establish that ICI believed that he engaged in protected conduct by showing that ICI believed that he passed sales and expense data to George Sauer.
3. Prima Facie Case
For purposes of analysis, the Court will assume that plaintiff was able to establish the first element of the prima facie case. The evidence shows that ICI discharged plaintiff, which establishes that plaintiff suffered an adverse employment action. As to whether there was a causal connection between the allegedly perceived participation in protected activity and the adverse employment action, plaintiff points out the close proximity between the deposition of George Sauer and plaintiff's termination. George Sauer's deposition occurred on July 27, 1998, and ICI terminated plaintiff on August 6, 1998. If it could be found that the information learned in George Sauer's deposition, taken in regard to his case, revealed for the first time that plaintiff passed sales and information data to his father, then the causal connection would exist and the prima facie case would be established.
ICI asserts that plaintiff was terminated as a result of his poor sales, new business performance and his history of upsetting customers and employees. Upon review of the numerous deposition excerpts to which ICI cited, the Court finds that ICI met its burden of producing evidence that provides legitimate, nondiscriminatory reasons for plaintiff's discharge.
4. Pretext
Plaintiff contends that ICI's reasons for his termination are pretextual. Plaintiff first notes that when he was terminated, he was told by a member of ICI's management identified as Mr. Barryman that he was being terminated for poor sales and attitude. Response, Exh. A, p. 33. Plaintiff contrasts that with the deposition testimony of Phillip Baldwin, who made the decision to terminate plaintiff. Mr. Baldwin stated that he based his decision to terminate plaintiff on his sales levels, new business levels, his harassment of other employees, and his statements that upset customers. Mot. S/J, Appendix, Baldwin Depo., pp. 25-26.
Upon review of the cited testimony, the Court finds that there is no material difference in the reasons provided to plaintiff by Messrs. Barryman and Baldwin. The Court notes that a poor attitude can be exemplified in a variety of ways. Also, Mr. Barryman's explanation was more general and it was given in a conversation with plaintiff, whereas Mr. Baldwin, who was the person that made the decision to terminate, gave his explanation during a deposition. Therefore, the Court finds that the difference in explanations provides no basis for establishing pretext.
In regard to the issue of new business levels, plaintiff points out that he was only one of a number of individuals that were having problems creating new business in their respective territories, plaintiff notes that some of plaintiff's larger accounts had been transferred to other salesmen. Although that may explain the drop in volume, it does not provide evidence of unequal treatment. plaintiff asserts that his new business figures increased in the few months before his termination and three other salesmen had lower new business figures than him, but plaintiff has not shown that the other salesman also engaged in harassment of employees and customers.
In regard to plaintiff's treatment of co-workers, the Court notes that plaintiff admitted to using various racial slurs that are generally considered offensive to Blacks and Hispanics. Mot. S/J, Appendix, K. Sauer Depo., pp. 121-23, 125, 127, 132. Such remarks were either directed at or used in the presence of a co-worker, Jesse Villela. plaintiff argues that the use of racial slurs with Mr. Villela as a basis for termination is "ridiculous" because plaintiff and Mr. Villela worked and socialized together for thirteen years. Plaintiff notes that Mr. Villela was promoted soon after he provided an affidavit wherein he states that he was offended by plaintiff's remarks. plaintiff also notes that Mr. Villela never told plaintiff during the thirteen years they worked together that plaintiff's joking nature offended him.
The Court finds that the offensive nature of the use of racial slurs in the workplace cannot be rendered innocuous with a characterization as being "plaintiff's joking nature." Regardless of Mr. Villela's failure to tell plaintiff that the remarks were offensive or Mr. Villela's use of remarks toward plaintiff, racial slurs in the workplace are offensive and inappropriate. Plaintiff also fails to consider that his remarks were likely to have been offensive to others in the workplace even though the remarks were not directed at them. Additionally, ICI's failure to take action against someone for the use of racial slurs would serious undermine ICI's future attempts to defend any suits that might involve a termination based on the use of racial slurs.
Defendant points out that plaintiff's long history of making offensive remarks to customers and employees went undisciplined because his father was his supervisor from 1985 until 1997.
In regard to plaintiff's treatment of female co-workers, plaintiff contends that Mr. Baldwin did not have enough information about the "Rachel Liggin incident" to counsel him about, much less utilize it as a reason to terminate him. The Court notes that plaintiff admitted to referring to Ms. Liggin as "easy." Also, Mr. Baldwin's lack of familiarity with the specifics of Ms. Liggin's complaint provides no basis for undermining the use of that complaint as a basis for termination. The Court notes that plaintiff failed to address the incidents of harassment involving Cindy Guerra. Mot. S/J, Appendix, K. Sauer Depo., pp. 146-47. Therefore, plaintiff has failed to show pretext in regard to use of plaintiff's treatment of co-workers as a reason for termination.
The Court finds that other activities of plaintiff were related to his treatment of co-workers: plaintiff's negative comments to employees regarding ICI. Plaintiff admitted in his deposition that ICI was the worst thing that ever happened to the paint industry. Mot. S/J, Appendix, K. Sauer Depo., p. 100. Plaintiff also told employees that ICI was a "Mickey Mouse operation," and he referred to ICI as a "sinking ship." Mot. S/J, Appendix, K. Sauer Depo., pp. 120, 133. Plaintiff failed to respond to ICI's use of such statements as a basis for terminating him.
In regard to plaintiff's treatment of ICI's customers, plaintiff asserts that ICI failed to present sufficient evidence of customer complaints for that to be used as a basis for termination. Plaintiff points out that Art Herrera stated in an affidavit that he knew of 25 customers that had complained about plaintiff, but Mr. Herrera has been unable to provide the names of such individuals. Plaintiff also notes that Mr. Villela could only recall three complaints ever made about plaintiff. One such incident that occurred in 1998 involved a representative of H.E.B. food stores. That year, H.E.B. did not renew their contract to buy paint, which amounted to approximately $150,000 in 1997. Mot. S/J, Appendix, K. Sauer Depo., pp. 70, 72-75. Thus, there is evidence from plaintiff suggesting a link between his treatment of a customer's representative and the loss of significant income from that customer. Plaintiff has failed to present any evidence that would show that plaintiff's treatment of customers was a pretextual reason for plaintiff's termination.
In addition to addressing the reasons asserted by Mr. Baldwin for the termination, plaintiff points out that Mr. Lou Morrow, plaintiff's supervisor for eight months, testified in George Sauer's case that in June of 1998, plaintiff was a very good employee. Plaintiff notes that he was terminated less than two months after the point in time that Mr. Morrow said he was a very good employee. Plaintiff also notes that he was terminated after the depositions of his father that, as discussed earlier, allegedly provided information that caused ICI to perceive that plaintiff assisted in his father's ADEA case. On that basis, plaintiff contends that he suffered retaliatory discharge. The Court notes that Mr. Baldwin's decision to terminate was based on several factors. In light of the evidence supporting the decision to terminate, the Court finds that Mr. Morrow's statement is insufficient to cause reasonable minds to differ on the issue of pretext. For the reasons set forth above, the Court finds that plaintiff failed to establish that ICI's legitimate, nondiscriminatory reasons for plaintiff's termination are pretextual. As a result, plaintiff failed to meet his burden of proof.
RECOMMENDATION
It is, therefore, the recommendation of the Magistrate Judge that the motion for summary judgment be GRANTED.
Instructions for Service and Notice of Right to Appeal/Object
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on all parties either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. Pursuant to Title 28 U.S.C. § 636(b)(1) and Rule 72(b), Fed.R.Civ.P., any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the district court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the clerk of the court, and serve the objections on all other parties and the magistrate judge . A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1413, 1428 (5th Cir. 1996)