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finding that the defendant articulated legitimate, nondiscriminatory reasons for its decision not to promote the plaintiff, who was rated the third weakest candidate
Summary of this case from Hall v. Pitney Bowes, Inc.Opinion
No. 99-2831.
August 31, 2000.
ORDER AND REASONS
Plaintiff, Rodrigo M. Solorzano, brought this action against his former employer, Shell Chemical Company ("Shell"), alleging employment discrimination based on his national origin (Nicaraguan) and his age, in violation of Title VII and the Age Discrimination in Employment Act ("ADEA"), respectively. He also asserts a state law defamation claim. Complaint and Amended Complaint, Record Doc. Nos. 1, 2.
Shell moved for summary judgment, supported by various affidavits, sworn exhibits and the transcript of plaintiff's deposition. Record Doc. No. 37. Solorzano filed a timely memorandum in opposition, supported by his own unsworn "affidavits." Record Doc. No. 43.
Although plaintiff has not submitted his averments in technically correct sworn affidavit form, he is proceeding pro se without the assistance of legal counsel; he signed the four "affidavits" personally; and each contains plaintiffs' written statement certifying that each "affidavit" contains a "truthful" or "true and complete" account of the matters set out therein. Accordingly, for purposes of this motion, the Court has considered his "affidavits" as competent summary judgment evidence.
Shell subsequently filed a reply memorandum, which attached an additional affidavit. Record Doc. No. 46. However, Shell neither sought nor received leave of Court to file this reply, as required by Local Rule 7.4. In addition, Shell would not have received leave of Court to file the reply memorandum and additional affidavit because (1) it asserted matters immaterial to determination of the motion, and (2) the Court would have been required to afford Solorzano an additional ten days to respond to Shell's new evidence, See Fed.R.Civ.P. 56(c); 10 A C.A. Wright, A.R. Miller M.K. Kane Federal Practice and Procedure § 2719 at 307-14 (3d ed. 1998), time which is not available under the current schedule. Therefore, the Court has not considered either the reply memorandum or the attached affidavit.
In addition, during discovery, plaintiff sought documents from Shell's RESOLVE Program, an in-house ombudsman program. Shell's motion for protective order in connection with plaintiffs' document request was granted in part and denied in part and Shell was ordered to produce the RESOLVE documents. Record Doc. No. 45. Shell's RESOLVE Program, an entity separate from defendant, recently filed a motion for reconsideration, which is set for hearing without oral argument on the Court's September 13, 2000 motion docket, arguing again that the ombudsman's records are protected by a privilege. Record Doc. No. 47. In light of the motion for reconsideration, Shell submitted the RESOLVE documents to the Court under seal, but not to plaintiff. I have reviewed the documents in camera in connection with the motion for reconsideration and to determine whether they would have any impact on the motion for summary judgment, and I find that they are immaterial to resolution of the instant motion for summary judgment.
Having considered the complaint as amended, the record, the written submissions of the parties, the exhibits and affidavits, and the applicable law, IT IS ORDERED that Shell's motion is GRANTED for the following reasons.
I. FACTUAL BACKGROUND
Solely for purposes of the pending motion, the following facts are undisputed. Solorzano was hired by Shell as a laboratory technician in 1989, when he was 44 years old. He achieved the level of Lab Technician 1st Rate in July 1993. Shell fired him in December 1998.
Shell disciplined Solorzano at various times during his employment. However he had not received any formal discipline since September 1994. That last disciplinary notice was removed from his personnel file in March 1996. Defendant's Exh. 3, affidavit of Tammy Faucheux, Shell Human Resources Assistant.
Plaintiff alleges that Shell refused to promote him to jobs for which he was qualified and which he sought in 1992, 1996 and 1998. The document specialist position available in 1992 went to Gerard Friloux, who is white and was less than 40 years old at the time. Defendant's Exh. 7, plaintiffs' deposition at 79, 133. The job of coach/internal consultant was given in 1996 to plaintiffs supervisor, Frank Mancuso, who was more than 40 years old. Defendant's Exh. 5, affidavit of Frank Mancuso, Solorzano's supervisor. Another "trainer" job available in 1996 was awarded to Nathan Murray, an African-American less than 40 years old. Defendant's Exh. 7, plaintiff's deposition at 92, 134.
In May 1998, plaintiff sought the position of process specialist. Defendant's Exh. 6, Mancuso affidavit; Defendant's Exh. 7, plaintiffs' deposition at 104-05. The selection procedure for that job consisted of a written test about general knowledge of the manufacturing process, which comprised 65% of the candidates' total score, and "structured interviews," which comprised the remaining 35% of the candidates' total score. The interviews determined the candidates' understanding of the specific manufacturing process (15% of overall score) and their demonstrated ability to maintain a positive, respectful relationship with the operating team (20% of overall score). Defendant's Exh. 6, Mancuso affidavit. The person with the highest overall score was awarded the position in July 1998. Id. The interview panel consisted of five male plant personnel, two black and three white. Two panel members were in their thirties, two were in their forties and one was in his sixties.Id.
Solorzano scored the highest on the written test and continued on to the interview. Id Defendant's Exh. 7, plaintiffs' deposition at 109-10. After the interviews, his total score was the third highest out of four candidates, and he did not get the job. Defendant's Exh. 6, Mancuso affidavit. Although Solorzano believes that he was better qualified than the person who scored the highest and received the promotion, he testified that the other person was "a real nice guy" and an "excellent operator." Defendant's Exh. 7, plaintiff's deposition at 120.
Plaintiffs' employment was terminated on December 30, 1998. Shell's stated reasons for termination were plaintiff's failure to cooperate with a search and his falsification of company records in connection with Shell's Substance Abuse Policy. Separation Notice Alleging Disqualification, Bates-stamped number 000019, attached to Defendant's Exh. 3, Faucheux affidavit. These charges arose out of a random drug test administered to Solorzano on December 14, 1998. Two independent laboratories and an outside pharmaceutical expert advised Shell that Solorzano's urine sample was inconsistent with human urine. Based on these test results, Shell concluded that Solorzano had not provided an unadulterated urine sample, as Solorzano had attested on a consent form that he signed when he gave the sample. Defendant's Exh. 1, affidavit of Robert Hunter, M.D., Shell's Medical Review Officer; Consent Form signed by Solorzano, attached as Exh. B to Dr. Hunter's affidavit. Shell determined that these results constituted a failure by Solorzano to cooperate with Shell's Substance Abuse Policy and a falsification of company records. Defendant's Exh. 1, Dr. Hunter affidavit. Shell therefore terminated his employment. Defendant's Exh. 6, Mancuso affidavit.
Plaintiff complains that he was subjected to a hostile work environment throughout his tenure at Shell when co-workers called him derogatory names based on his Hispanic origin. He states that no supervisors ever engaged in this name-calling, it was done humorously and without malice, he did not take offense at it and he engaged in reciprocal name-calling. Defendant's Exh. 7, plaintiff's deposition at 300-02, 307-09, 311, 315-18. He did not make a formal complaint because he "felt that the people making the comments or calling [him] names were not motivated by ethnic animus, but were at most guilty of crass humor and behavior." Record Doc. No. 43, Plaintiff's Affidavit 3. Solorzano states that the comments eventually grew tiresome and he began to resent them.Id. He says that he complained informally about the name-calling to his supervisors once in 1994 in connection with complaining about disciplinary action that had been taken against him once to a human resources official in 1996 or 1997, but that Shell did nothing to stop it. Id Defendant's Exh. 7, plaintiff's deposition at 304, 315-16.
Plaintiff testified that he was called names such as "Julio," "Iguana Man," "Spic," "Nicarocket," "Pepper Belly," "Green Card" and "Burro Eater." Defendant's Exh. 7, plaintiffs' deposition at 300-01, 303.
II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when "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 identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II. Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex Corp., 477 U.S. at 321-23). Facts that are not material or necessary to the case will not preclude summary judgment. Gibson v. Rich, 44 F.3d 274, 277 n. 7 (5th Cir. 1995). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. Plaintiff's Defamation Claim Is Prescribed
Solorzano's opposition papers do not address Shell's arguments concerning his state law defamation claim. However, this claim has clearly prescribed.
The defamation claim arises out of an incident in May 1994 when plaintiff was disciplined by an oral reprimand. The oral reprimand expired six months later and was removed from his personnel file. Defendants' Exh. 3. Solorzano alleges that the reprimand was defamatory.
Defamation is a tort under Louisiana law. Tort claims are subject to a one-year prescriptive period. La. Civ. Code art. 3492. The prescriptive period begins to run from the date on which the injury or damage is sustained, even though plaintiff may only later realize the full extent of his damages. Id.; Jupiter v. Bellsouth Telecomm., Inc., No. 99-628, 1999 WL 1009829, at *2 (E.D. La. November. 5, 1999) (citing Jay v. International Salt Co., 868 F.2d 179, 180 (5th Cir. 1989)); Steele v. Steele, 732 So.2d 546, 550 (La.App. 5th Cir. 1999). Because the alleged defamation occurred in 1994, more than one year before this lawsuit was filed in 1999, this claim has prescribed, and defendant is entitled to summary judgment dismissing plaintiffs' state law defamation claim.
C. Plaintiffs' ADEA Claim and Failure to Promote Claims from 1992 and 1996 Are Barred by his Failure to Exhaust Administrative Remedies
Under both Title VII and the ADEA, plaintiff must present his discrimination claims to the EEOC before filing suit in federal court. Because Solorzano failed to file a charge with the EEOC concerning his ADEA claim and his 1992 and 1996 failure to promote claims, those claims are barred from consideration in this Court.
1. ADEA Claim
"'A charge of discrimination must be timely filed with the EEOC prior to the initiation of a civil action under the ADEA.'" Scott v. University of Miss., 148 F.3d 493, 514 (5th Cir. 1998) (quoting Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988) (citing 29 U.S.C. § 626 (d)),abrogated on other grounds by Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000); accord Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1223 (5th Cir. 1995). In the instant case, Solorzano filed a charge with the EEOC alleging national origin discrimination in connection with Shell's refusal to promote him in July 1998 and the termination of his employment in December 1998. However, he did not allege age discrimination in that charge. Charge of Discrimination dated April 16, 1999 (previously marked as Exhibit K, Attachment # 2), attached to Defendant's Exh. 3, Faucheux affidavit.
"The 'scope of the ADEA complaint filed with the court is limited by the allegations of the EEOC complaint and those charges reasonably expected to grow out of the EEOC investigation.'" Jupiter, 1999 WL 1009829, at *2 (quoting Ghahramani v. BASF Corp., 755 F. Supp. 708, 711 (M.D. La. 1991); citing Anderson v. SmithKline Beecham Clinical Labs., Inc., 1992 WL 29972, at *3-4 (E.D. La. February. 10, 1992)). Any charge not alleged in the EEOC complaint and reasonably expected to grow out of the EEOC investigation is barred from judicial review. Thomas v. Texas Dep't of Crim. Justice, No. 99-20124, 2000 WL 1022760, at *4 (5th Cir. July 25, 2000) (allegation of race discrimination not reasonably related to EEOC charge of sex discrimination); Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). A charge of age discrimination cannot reasonably be expected to grow out of the EEOC's investigation into charges of national origin discrimination.
Accordingly. Shell is entitled to summary judgment on plaintiffs' ADEA claim.
2. Failure to Promote Claims
Plaintiff's claims of discriminatory failure to promote under Title VII are also subject to an administrative exhaustion requirement. Administrative review by the EEOC is normally required before the Court may review a discrimination complaint. 42 U.S.C. § 2000e-5 (e)(1);Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). In a "deferral" state like Louisiana, an aggrieved employee has 300 days from the date of the last act of discrimination to file an EEOC charge. 42 U.S.C. § 2000e-5 (e)(1); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998); Messer, 130 F.3d at 134 n. 2; Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994). Although the Fifth Circuit has not yet ruled that Louisiana is a deferral state, it has repeatedly applied the 300-day statute of limitations in cases arising in Texas, which is a deferral state.
A deferral state is one in which state law prohibits discrimination in employment and a state agency has been established to grant or seek relief for such discriminatory practice. Clark v. Resistoflex Co., 854 F.2d 762, 765 n. 1 (5th Cir. 1988). The Louisiana Commission on Human Rights ("LCHR") has been funded and operating since April 1994, making Louisiana a deferral state since that time. La. Rev. Stat. Ann. § 51:2233 (West Supp. 1997); G. Guidry, Employment Discrimination Claims in Louisiana, 45 La. B.J. 240, 241 (Oct. 1997); G. Huffman, The Louisiana Commission on Human Rights — Now It's for Real, Briefly Speaking, Spring 1995, at 4 (New Orleans Bar Ass'n). Solorzano's claim of discrimination in 1992, before the LCHR was established, would have been subject to a 180-day, rather than a 300-day, limitations period in which to file his EEOC charge. 42 U.S.C. § 2000e-5(e)(1).
See also Clark, 854 F.2d at 765 (applying similar provision of Age Discrimination in Employment Act); Nelson v. Shoney's, Inc., No. 96-2199, 1997 WL 567957, at *7 (E.D. La. Sept. 10, 1997) (Vance, J.) (applying 300-day statute of limitations to complaint of race discrimination in Louisiana); Vaughn v. Amtrak Transp. Serv., No. 95-3570, 1996 WL 363448, at *1 n. 5 (E.D. La. July 1, 1996) (Africk, M.J.) (holding plaintiff's claim untimely if 300-day statute of limitations applies in Louisiana); McNeill v. Atchison, Topeka S.F. Ry., 878 F. Supp. 986, 989 (S.D. Tex. 1995) (Title VII's 300-day statute of limitations also applies to ADA claims).
See. e.g., Messer, 130 F.3d at 134 n. 2; Griffin, 26 F.3d at 612; Washington v. Patlis, 868 F.2d 172 (5th Cir. 1989); Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (5th Cir. 1988).
The limitations period begins on the date the alleged discriminatory act occurred. Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). In this case, the allegedly discriminatory failures to promote Solorzano occurred in 1992 and 1996. His deadline to file a charge with the EEOC concerning each act of alleged discrimination was no more than 300 days later. Because he never filed any such charges, his Title VII claims concerning the 1992 and 1996 failures to promote are barred from judicial review and Shell is entitled to summary judgment on these claims.
D. Plaintiff's Remaining Title VII Claims Are Meritless
As to his remaining Title VII claims, Solorzano fails to bear his burden of presenting evidence sufficient to create any triable material fact dispute that he was the victim of discrimination or a hostile environment based on his national origin.
1. Failure to Promote in 1998 and Termination Claims
In a Title VII case, plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); accord Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000). A prima facie case in a failure to promote case is established when plaintiff shows that (1) he is a member of a protected class, (2) he sought and was qualified for the position, (3) he was rejected for the position and (4) the employer continued to seek applicants with his qualifications. Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000). Similarly, to establish a prima facie case of discriminatory termination, plaintiff must prove that (1) he was a member of a protected class, (2) he was qualified for the position, (3) his employment was terminated and (4) he was replaced by an individual of a different national origin, or that his employer treated individuals of a different national origin more favorably than it treated him. Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987); Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1179 (5th Cir. 1990); Martinez v. El Paso County, 710 F.2d 1102, 1104 (5th Cir. 1983).
If a prima facie case is established, a presumption of discrimination arises and
the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. . . . [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination.Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quotation and citation omitted); accord Reeves, 120 S.Ct. at 2106;Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998).
If defendant meets this burden, the presumption of discrimination disappears and plaintiff "has the opportunity to prove that [defendant's] articulated reason was a pretext for discrimination."Deffenbaugh-Williams v. Wal-Mart, 156 F.3d 581, 587 (5th Cir. 1998),reh'g en banc granted, 169 F.3d 215 (5th Cir.), panel opin. reinstated in relevant part, 182 F.3d 333, 333 (5th Cir. 1999). The "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr., 509 U.S. at 507 (quotation omitted);accord Reeves, 120 S.Ct. at 2106; Deffenbaugh-Williams, 156 F.3d at 587. Plaintiff may carry his ultimate burden either directly by "persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Smith, 891 F.2d at 1179; accord Reeves, 120 S. Ct. at 2106.
Defendant's burden is one of production, not persuasion. Shell must merely set forth, through admissible evidence, "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (emphasis in original). Thus, the employer need only articulate a legitimate, nondiscriminatory reason for its action, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).
"An employer's reason cannot be shown to be a 'pretext for discrimination' unless the plaintiff introduces some evidence, whether circumstantial or direct, that permits the jury to believe that the reason was false and that illegal discrimination was the actual reason."Nichols, 138 F.3d at 566 (citing St. Mary's Honor Ctr., 509 U.S. at 515;Swanson v. General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir. 1997)) (emphasis in original).
Assuming without deciding that Solorzano could establish a prima facie case of national origin discrimination in connection with Shell's failure to promote him in 1998 and its termination of his employment, Shell has articulated legitimate, nondiscriminatory reasons for its actions. Shell has explained that it terminated plaintiff for failing to comply with its Substance Abuse Policy, specifically by providing an adulterated urine sample in violation of his obligation to cooperate with the drug testing and his affirmation that he was providing an unadulterated sample. As to its failure to select him for promotion, Shell has explained that Solorzano was ranked third out of four candidates after the screening process was completed. These reasons meet Shell's burden. Plaintiff must therefore show that Shell's reasons were false and that discrimination was its actual reason.
It is irrelevant whether Shell's decisions may have been based on incorrect facts or Shell failed to comply with its own procedures, so long as its decisions were not motivated by discriminatory animus.Scales, 103 F.3d at 711. "The fact that the employers' [sic] reasonable belief [in its reason for [termination] eventually proves to be incorrect — if, for example, [plaintiff] were eventually to be vindicated from the charges of falsifying records — would not change the conclusion that the firing had been nondiscriminatory." Moore, 990 F.2d at 816. The Court will not "second guess" employment decisions. Scott, 148 F.3d at 509. Anti-discrimination statutes were "'not intended to be a vehicle for judicial second-guessing of employment decisions, nor [were they] intended to transform the courts into personnel managers.'" Id. (quoting Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988); Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988) ("'[W]e do not sit as a super-personnel department that reexamines an entity's business decisions.'")). "Even if evidence suggests that a decision was wrong, we will not substitute our judgment . . . for the employer's business judgment." Id. at 509-10 (citingBienkowski, 851 F.2d at 1508 (antidiscrimination laws "'cannot protect . . . workers from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated'")). Thus, many of the fact issues that Solorzano contends are disputed, such as whether the chain of custody of his urine sample was followed or whether disciplinary actions taken against him were based on adequate investigation, are not material and do not preclude summary judgment. Gibson, 44 F.3d at 277 n. 7.
Solorzano fails to present any competent summary judgment evidence to meet his burden. He has offered no evidence from which a reasonable factfinder could draw an inference that Shell's reasons were a pretext for national origin discrimination. There is nothing in the evidentiary record to persuade the Court that a discriminatory reason more likely motivated Shell in either decision or that its explanations are unworthy of credence.
Plaintiffs only evidence of possible discriminatory animus is the ethnically based comments of his co-workers. He admitted that no supervisor made such comments, and he has shown no connection between any such comments and Shell's decisions not to promote him or to terminate his employment. Derogatory stray remarks that are not connected to an employment decision cannot create a fact issue regarding discriminatory intent. Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999) (citing Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997); Equal Employment Opportunity Comm'n v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996); Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995)).
"Where the plaintiff has offered no evidence to rebut the employer's facially benign explanations, no inference of discrimination can be drawn." Scott, 148 F.3d at 507 (quoting EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1447 (5th Cir. 1995)), abrogated on other grounds by Kimel, 120 S.Ct. 631; see also Bodenheimer, 5 F.3d at 958 (plaintiff must tender factual evidence from which factfinder could reasonably conclude that defendant's reasons were pretext for discrimination); Moore v. Eli Lilly Co., 990 F.2d 812, 817 n. 24 (5th Cir. 1993) (holding that plaintiff failed to prove pretext and listing other cases in which plaintiffs similarly failed to meet their burden; "the most prevalent flaw in the losing plaintiffs' evidence is the absence of proof of nexus between the firing (or failure to promote) and the allegedly discriminatory acts of the employer").
Solorzano's mere subjective belief that he has been the subject of national origin discrimination, unsupported by any specific factual evidence, cannot be the basis of judicial relief and is insufficient to rebut the employer's evidence of legitimate, nondiscriminatory reasons for its actions. Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000); Lawrence v. University of Tex., 163 F.3d 309, 313 (5th Cir. 1999); Ross v. University of Tex., 139 F.3d 521, 526 (5th Cir. 1998);Nichols, 138 F.3d at 566.
Solorzano has presented no evidence to support his subjective belief that he was the victim of discrimination in either employment decision. Although he alleges that he was better qualified than the person who received the July 1998 promotion, his evidence fails to show that he was "clearly better qualified," as opposed to merely better or as qualified, than the employee who was selected.
[D]ifferences in qualifications between job candidates are generally not probative evidence of discrimination unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue. . . . [D]isparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as to virtually "jump off the page and slap you in the face."Deines v. Texas Dep't of Protective Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999). Plaintiff admitted that the person who received the job was an "excellent operator." Defendant's Exh. 7, plaintiff's deposition at 120. He alleges that the interviews for the job were "subjective" but proffers no evidence that such "subjectivity" was ethnically oriented. His own affidavit concerning this decision indicates that it was based on the panel's negative impressions of his personality, reputation and employment history, not on any ethnic animus. Plaintiffs' Affidavit 2. Shell's evidence has established that the interviews were conducted by a diverse panel and based on well-defined criteria. See Scales, 103 F.3d at 711 (no evidence of discrimination when selection panel was ethnically diverse and selection criteria were appropriately documented and uniformly applied). This Court will not
try . . . the validity of an employer's good faith belief as to one employee's competence in comparison to another. . . . It is not the function of the [factfinder] to scrutinize the employer's judgment as to who is best qualified to fill the position; nor is it the [factfinder's] task to weigh the respective qualifications of the applicants. Whether the employer's decision was the correct one, or the fair one, or the best one is not a question within the [factfinder's] province to decide. The single issue for the trier of fact is whether the employer's selection of a particular applicant over the plaintiff was motivated by discrimination.Deines, 164 F.3d at 281 (quotation and brackets omitted) (emphasis in original). Thus, in Deines, the Fifth Circuit held that "even if [plaintiff] proved to the jury that the employer did not properly evaluate the qualifications of the respective candidates, and even if the jury concluded that [plaintiff] was the best qualified candidate, he still would not have proved his case [of national origin discrimination]." Id. at 282. Solorzano's evidence fails for the same reasons to create material fact issues for trial.
Solorzano has proffered no evidence that the interview panel or his supervisors were motivated by discrimination, or that Shell's explanations are unworthy of credence, in connection with either the lack of promotion or termination of his employment. Accordingly, Shell is entitled to summary judgment on plaintiffs' claims of discriminatory failure promote and termination.
2. Hostile Environment
Solorzano complains that he was subjected to a hostile work environment from 1990 to 1998 when co-workers at Shell called him derogatory names based on his Hispanic origin. He admits that no supervisors ever engaged in this name-calling, that it was done humorously and without malice, that he did not initially take offense at it and that he engaged in reciprocal name-calling. He did not make a formal complaint because he felt that the people making the comments were not motivated by ethnic animus. Solorzano complained about the name-calling to his supervisors once in 1994 and once to a human resources official in 1996 or 1997.
To survive summary judgment on this claim, Solorzano
must create a fact issue on each of the elements of a hostile work environment claim: (1) racially discriminatory intimidation, ridicule and insults that are; (2) sufficiently severe or pervasive that they; (3) alter the conditions of employment; and (4) create an abusive working environment. In determining whether a working environment is hostile or abusive, all circumstances must be considered, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); citing DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995)). Solorzano "must show that the discriminatory conduct was severe or pervasive enough to create an objectively hostile or abusive work environment." Id. Plaintiffs' failure to satisfy any element of the Harris test will dictate summary judgment in defendant's favor.
Solorzano fails to present competent summary judgment evidence to meet at least two elements of the Harris test. First, he proffers no evidence that he suffered racially discriminatory intimidation, ridicule and insults. He specifically states that he did not believe the name-calling was motivated by ethnic animus.
Second, the evidentiary record fails to create any material fact dispute that the name-calling was so frequent or severe that it was abusive. There is no evidence that the comments unreasonably interfered with plaintiff's work performance. To the contrary, Solorzano states that it was done humorously and that he generally did not take offense at it. The lack of severity of the comments is illustrated by Solorzano's failure to complain about them other than twice over the course of eight years. The comments were not physically threatening or humiliating but were merely offensive utterances. Although such comments were indeed crass, boorish, offensive and inappropriate, they were not so severe as to create a legally actionable and objectively hostile work environment.Cf. Walker, 214 F.3d at 626 (evidence of numerous racially offensive remarks and actions and resignation of nonparty because of racially hostile atmosphere sufficient to defeat summary judgment).
Accordingly, Shell is entitled to summary judgment on plaintiff's hostile environment claim.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and plaintiff's claims are DISMISSED WITH PREJUDICE.