Opinion
NO. 4:02-CV-1011-A
February 6, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, American Airlines, Inc., for summary judgment. The court, having considered the motion, the response of plaintiff, Thai Truong, the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.
I. Plaintiff's Claims
On December 16, 2002, plaintiff filed his original complaint and, on November 25, 2003, his first amended complaint in this action. Plaintiff alleges that defendant discriminated against him because of his age and his being an Asian-American. He also alleges that defendant retaliated against him for engaging in protected activity. He asserts claims under Title VII, 42 U.S.C. § 2000e to 2000e-17 ("Title VII") and under the Age Discrimination in Employment Act, 29 U.S.C. § 621-34 ("ADEA").
II. Grounds of the Motion
Defendant asserts numerous grounds in support of its motion for summary judgment. The court need not repeat all of them here, but will discuss those upon which the motion is granted. Failure to discuss the remaining grounds does not signify that they have been found to be without merit.III. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett. 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr. 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment.Simmons v. Lyons. 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita. 475 U.S. at 597. See also Boeing Co. v. Shipman. 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane) (explaining the standard to be applied in determining whether the court should enter judgment on motions for directed verdict or for judgment notwithstanding the verdict).
IV. Undisputed Evidence
The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:Plaintiff was employed by defendant as a production supervisor in aircraft maintenance at Alliance Airport in Fort Worth, Texas. Plaintiff directly supervised the unionized aircraft mechanics and employees who performed hands-on work on aircraft brought in for servicing. On August 23, 2001, during a meeting of aircraft mechanics conducted by plaintiff and two other production supervisors, Charlie Lay ("Lay") and Curtis Lenton ("Lenton"), a mechanic, Scott Haxel ("Haxel"), became upset and expressed his anger by dropping his pants, saying "kiss my ass," and storming out of the meeting. Haxel disappeared before he could be reprimanded that day. Plaintiff recognized the need to reprimand Haxel and told Lay and Lenton that the three of them must take action. They then made plans to counsel Haxel. The next day, their manager, Otis DeBoard ("DeBoard"), learned of the incident and instructed plaintiff, Lay, and Lenton to appropriately counsel Haxel about his conduct. Several days later, DeBoard learned that none of the three had counseled Haxel. He then undertook an investigation into the Haxel incident and ultimately determined that each of the three supervisors should be given the same punishment for the failure to have initially handled the Haxel incident and the subsequent failure to follow his instructions.
Defendant uses a process of progressive corrective action known as Peak Performance Through Commitment ("PPC"). The first step in PPC is orally communicating with the employee about the problem at hand. After the oral communication, the employee's supervisor completes a counseling record known as a CR-1 for inclusion in the employee's personnel file. The second step in PPC is a First Advisory, a written letter, detailing the problem then in issue and giving the employee an opportunity to correct the problem. The third step is a Second Advisory, also written, making it clear to the employee that termination is a possibility if the employee fails to meet company standards. The fourth step is a Career Decision Advisory, giving the employee one final opportunity to address the particular problem then under consideration. An employee who is given a Career Decision Advisory is given a day off with pay, called a Career Decision Day, and is to choose one of three options: Option one — the employee makes a commitment to meet all company standards and continue his employment; option two — the employee signs an agreement not to exercise grievance or appeal rights and not to otherwise bring action against defendant and defendant allows the employee to resign with certain transition benefits; or option three — the employee declines the first two options and chooses to be terminated with the right to appeal. The final step in PPC is a Final Advisory, terminating employment.
After DeBoard made his decision to give plaintiff, Lay, and Lenton each a one-level increase in counseling, he reviewed their personnel files to determine the appropriate step of PPC for each. Because plaintiff was already on a Second Advisory, he received a Career Decision Advisory. Because Lay was already on a First Advisory, he received a Second Advisory. Because Lenton did not have any previous advisories, he received a First Advisory. At the time the advisories were given, plaintiff was a fifty-year-old Asian-American, Lay was a fifty-five-year-old Caucasian, and Lenton was a forty-seven-year-old African-American.
Plaintiff received his Career Decision Advisory on Friday, September 21, 2001. His Career Decision Day off with pay was Monday, September 24, 2001. On September 25, 2001, plaintiff met with DeBoard and gave notice that he had chosen the third option, to have his employment terminated. Defendant then gave plaintiff a Final Advisory, which plaintiff appealed unsuccessfully. Plaintiff's position as a production supervisor has not been filled since the termination of his employment.
Prior to his termination, by letter dated March 23, 2001, plaintiff had complained to defendant that he was being discriminated against for a laundry list of reasons, including race and age discrimination. One of the persons who disciplined plaintiff after that time was not aware of the March 23, 2001, letter or of plaintiff's complaints of discrimination. There is no evidence that the other, DeBoard, took the letter or any complaints of discrimination into account in deciding to discipline plaintiff.
On March 12, 2002, plaintiff filed a charge of discrimination with the Texas Commission on Human Rights and the EEOC. The charge reflected that the only harm suffered was as a result of plaintiff's discharge on September 25, 2001. That was the only date given by plaintiff in the box requesting information about the date discrimination took place. And, plaintiff checked only the boxes for race and age in describing the types of discrimination to which he had been subjected. He did not claim that national origin or retaliation was a basis for any claim.
Plaintiff mentions in his summary judgment brief that his attorney submitted a two-page letter to the EEOC that included claims of national origin discrimination and retaliation. He does not cite to a record reference, however, and such letter does not appear to have been included in the summary judgment evidence. Plaintiff admits that he signed the EEOC charge after the letter had been submitted, Pl's Br. at 3, presumably because the "EEOC could not follow" the letter.Id. at 9. Plaintiff does not submit any evidence to support the contentions that the EEOC made a mistake in handling his claim and that it should have preserved his retaliation claim. Id. at 10.
V. Law Applied to the Facts
A. National Origin Discrimination.In his first amended complaint, plaintiff alleges that he was discriminated against for reasons related to his "race/national origin." Pl.'s First Am. Compl. at 5, ¶ 41, 6, ¶ 53. As defendant points out, claims for race and national origin discrimination are separate and distinct. Espinosa v. Farah Mfg. Co. 414 U.S. 86, 88-89 (1973). In his EEOC charge, plaintiff did not allege national origin discrimination, but only discrimination based on race and age. In his summary judgment response brief, plaintiff acknowledges that he is only claiming discrimination based on his race and not national origin. Pl.'s Br. at 3 n. 1.
B. Exhaustion of Administrative Remedies.
As a prerequisite to pursuing a claim under Title VII or the ADEA, a plaintiff must file a charge of discrimination within 300 days of the claimed discrimination or retaliation. Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (Title VII); Bettcher v. Brown Schs., Inc., 262 F.3d 492, 494 (5th Cir. 2001) (ADEA). The court has no jurisdiction to consider claims as to which the plaintiff has not exhausted his administrative remedies. National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). And, the claims asserted in a civil action are limited to the scope of the investigation that would reasonably be expected to grow out of the EEOC charge. Id. at 711-12. Retaliation that occurs as a result of the filing of an EEOC charge can be included in a plaintiff's lawsuit without the filing of another charge. Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981). But, a claim of retaliation arising out of events occurring prior to the filing of an EEOC charge can only be included in a plaintiff's lawsuit if it was a subject of the EEOC charge. McCray v. DPC Indus., Inc., 942 F. Supp. 288, 294-95 (E.D. Tex. 1996).
Here, plaintiff's retaliation claim arises out of events occurring prior to the filing of his EEOC charge. Specifically, he contends that he was retaliated against because of his March 23, 2001, letter complaining of discrimination. Pl.'s First Am. Compl. at 5-6, ¶¶ 40-44. Because retaliation was not a ground of plaintiff's EEOC charge, he is barred from pursuing that claim. McCray, 942 F. Supp. at 294-95.
To the extent that plaintiff appears to allege that earlier disciplinary actions, e.g., a December 8, 2000, letter critical of his performance, counseling in April of 2001, and a May 22, 2001, Second Advisory, were discriminatory, such claims are barred as they occurred more than 300 days prior to the filing of the EEOC charge. Huckabay, 142 F.3d at 238. Moreover, since the charge was limited to complaints about plaintiff's termination, the earlier actions cannot be considered. See Anderson v. Lewis Rail Serv. Co., 868 F.2d 774, 775 (5th Cir. 1989).
Plaintiff has not made any attempt to show a continuing violation of the kind that would exempt him from the 300-day bar. See Huckabay v. Moore, 142 F.3d 233, 238-40 (5th Cir. 1998).
C. Plaintiff Has Not Established a Prima Facie Case of Discrimination.
To establish a prima facie case of race discrimination under Title VII, plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and, (4) he was replaced by someone outside of his protected class or similarly situated individuals outside his protected class were treated more favorably. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
To establish a prima facie case of discrimination under the ADEA, plaintiff must show that (1) he is a member of the protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and, (4) he was replaced by someone outside the protected class, someone younger, or was otherwise discharged because of his age. Brown v. CSC Logic Inc., 82 F.3d 651, 654 (5th Cir. 1996).
Here, plaintiff has not adduced any summary judgment evidence to show that he was treated less favorably than anyone outside his protected class of race or age. Instead, the summary judgment record establishes that plaintiff, Lay, and Lenton each received the same punishment for their actions. All three were about the same age: plaintiff was fifty years old; Lay was fifty-five; Lenton was forty-seven. All three were of different races: plaintiff was Asian-American, Lay was Caucasian; Lenton was African-American. And, plaintiff was not replaced by anyone after his termination. His subjective belief that he was discriminated against is insufficient to raise a genuine issue of material fact for trial.Hornsby v. Conoco, Inc., 777 F.2d 243-246 (5th Cir. 1985).
D. Plaintiff's Ultimate Burden.
Even assuming that plaintiff had been able to make out a prima facie case of discrimination, defendant has proffered a legitimate, nondiscriminatory reason for its disciplinary action: DeBoard held the three supervisors equally accountable for what had happened. Plaintiff has not come forward with evidence to show that defendant's proffered reason is not true, but instead is a pretext for intentional discrimination. St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 507-08 (1993). That defendant may have made a poor business decision does not raise a fact issue for the jury. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). Plaintiff presents no evidence of a discriminatory motive. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason). Because no rational fact finder could conclude that defendant's actions were discriminatory, defendant is entitled to judgment as a matter of law. Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 148 (2000).
VI. ORDER
For the reasons discussed herein,
The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and, that such claims be, and are hereby, dismissed with prejudice.