Opinion
Civil Action No. 4:97cv65-D-B
March 27, 1998
MEMORANDUM OPINION
Presently before the court is the motion of the defendants for the entry of summary judgment as against the plaintiff's claims in this cause. Finding that the motion is well taken, the court shall grant it and dismiss this action.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted. The court chooses not to provide an in-depth discussion of all of the facts surrounding this case, but rather will discuss pertinent facts in the body of its opinion as they become necessary.
This court declines to delve into an exhaustive discussion of the facts surrounding this case. It is sufficient to note that the plaintiff, Ms. Debra Walker, was initially hired by the defendant Uncle Ben's sometime in the summer of 1993. During her tenure at Uncle Ben's, the plaintiff applied for and was denied promotion on at least two separate occasions. Not long after being denied the second promotion, the plaintiff resigned her position at Uncle Ben's. On April 28, 1997, the plaintiff filed the present action and charged the defendants with various claims of racial discrimination and gender discrimination under both Title VII and 42 U.S.C. § 1981. The defendants have moved for the entry of summary judgment on the plaintiff's claims, and the court now takes up that motion.
Discussion
Summary Judgment Standard
Summary judgment shall be granted "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 burden rests upon the party seeking summary judgment to show the district court that an absence of evidence exists in the non-moving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996); Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Once such a showing is presented by the moving party, the burden shifts to the non-moving party to demonstrate, by specific facts, that a genuine issue of material fact exists.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Texas Manufactured Housing Ass'n. Inc. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Substantive law will determine what is considered material.Anderson, 477 U.S. at 248; see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."Anderson, 477 U.S. at 248; see City of Nederland, 101 F.3d at 1099; Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995). Further, "[w]here 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 of fact for trial." Anderson, 477 U.S. at 248; see City of Nederland, 101 F.3d at 1099. Finally, all facts are considered in favor of the non-moving party, including all reasonable inferences therefrom. See Anderson, 477 U.S. at 254; Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995);Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994);Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Guillory v. Domtar Industries Inc., 95 F.3d 1320, 1326 (5th Cir. 1996); Richter v. Merchants Fast Motor Lines. Inc., 83 F.3d 96, 97 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little, 37 F.3d at 1075 (emphasis omitted): see Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 111 L.Ed. 695, 110 S.Ct. 3177 (1990).
The Plaintiff's Claims
Individual Defendants
By previous order dated February 4, 1998, the undersigned dismissed all of the plaintiff's claims arising under Title VII as against the individual defendants in their individual capacities. Walker v. Uncle Bens, Inc., et al., Civil Action No. 4:97cv65-D-B (N.D. Miss. Feb. 4, 1998) (Order Granting in Part and Denying in Part Motion to Dismiss). The basis of that order was that under Fifth Circuit Title VII law, an individual acting in his individual capacity cannot be held liable as an "employer" for purposes of Title VII. See, e.g., Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 944 (5th Cir. 1996); Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994); Dandridge v. Chromcraft Corp., 914 F. Supp. 1396, 1404 (N.D. Miss. 1996). This court's order, however, did not effect any of the plaintiff's remaining claims. The plaintiff's remaining claims against these individual defendants in their individual capacity are still viable in this action, including her claims for discrimination arising under 42 U.S.C. § 1981. The individual defendants may potentially have individual liability for violations of § 1981. See, e.g., Bellows v. Amoco. Oil Co., 118 F.3d 268, 274 (5th Cir. 1997) (acknowledging potential individual liability under § 1981);Harrington v. Harris, 108 F.3d 598, 602, 607 (5th Cir. 1997) (affirming § 1981 verdict against individual); Patterson v. PHP Healthcare Corp., 90 F.3d 927, 933 (5th Cir. 1996) (affirming in part § 1981 verdict against individual); Faraca v. Clements, 506 F.2d 956, 959 (5th Cir.), cert. denied, 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 669 (1975) (imposing individual liability under § 1981). Title VII Statute of Limitations
In their rebuttal brief, the defendants assert for the first time that the plaintiff's Title VII claims are barred as being filed outside the relevant statute of limitations. Pursuant to the provisions of Title VII, the plaintiff must file her Title VII complaint within ninety (90) days of the receipt of her "right to sue letter" from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th Cir. 1996); Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992). Ms. Walker, according to statements made in her submissions to this court, received her "right to sue" letter from the EEOC on January 24, 1997. Plaintiff's Response Brief, p. 3. As such, Ms. Walker should have filed her complaint with this court on or before April 24, 1997. Ms. Walker, however, filed her complain on April 28, 1997, and therefore filed this action three days outside of the proscribed ninety day period. A strict application of this time period would require that Ms. Walker's Title VII claims be dismissed as untimely filed.
This court is not so hasty as to make such an application. Like any statute of limitations, this time period is subject to equitable considerations such as tolling and waiver. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984); St. Louis v. Texas Worker's Compensation Com'n, 65 F.3d 43, 47 (5th Cir. 1995). The present state of the record, however, yields no support for the application of these principles. Nevertheless, this court will not consider this argument today, as it was not made in the defendants' initial motion and the plaintiff has not had an adequate opportunity to respond to this contention of the defendants.
Title VII and § 1981
The elements of a § 1981 claim are well established. Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994) ("To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerns one or more of the activities enumerated in the statute."). In most cases, as in Green. the "enumerated activity" implicated is the right to "make and enforce contracts." Green, 27 F.3d at 1086. However, where a plaintiff asserts parallel causes of action under both Title VII and § 1981 for racial discrimination, the substantive elements of the claims of discrimination are considered identical. See, e.g., LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996); Anderson v. Douglas Lomason Co., Inc., 26 F.3d 1277, 1283 (5th Cir. 1994). There is no need, then, for this court to analyze the substantive merit of the plaintiff's § 1981 claim separately from the plaintiff's claims of racial discrimination under Title VII. The only real differences between the two for purposes of this action are the unavailability of individual liability under Title VII, and the 90-day statute of limitations for the plaintiff's Title VII claims. These matters are separately addressed.
Disparate Treatment
The plaintiff charges that she was subjected to disparate treatment by the defendants based upon race in their failure to promote her to the position of "Purchasing Coordinator II." The court is unclear as to whether this is the only allegation of disparate treatment made by the plaintiff, and the matters before the court may also be construed to allege such a claim for the failure of the defendants to award the plaintiff a position as a "Temporary Operator." Therefore, the court shall address both. Title VII of the Civil Rights Act of 1965 provides in relevant part:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . .42 U.S.C. S 2000e-2(a)(1). Title VII protects all employees from racial discrimination, regardless of race. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976) ("The Act prohibits all racial discrimination in employment, without exception for any group of particular employees. . . ."). The ultimate question in an asserted case of racial discrimination under Title VII is whether the plaintiff's race was a factor in an adverse employment decision against her. Rhodes v. Guiberson Oil Tools, 39 F.3d 537, 544 (5th Cir. 1994) ("A claim under Title VII . . . cannot `succeed unless the employees' protected trait actually played a role in that process and had a determinative influence on the outcome.'").
However, given that many employment discrimination cases involve elusive factual questions, the Supreme Court has devised an evidentiary procedure that allocates the burden of production and persuasion when the plaintiff is unable to come forward with direct evidence of discrimination. In a claim of race discrimination brought under Title VII, the evidentiary procedure to be utilized was originally introduced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and more recently reaffirmed in St. Mary's Honor Ctr. v. Hicks, 509 U.S.-, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Under McDonnell Douglas, the plaintiff has the initial burden of proving a prima facie case of discrimination.Id. at 802. If the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of production shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the discharge." Flanagan v. Aaron E. Henry Community Health Serv. Ctr., 876 F.2d 1231, 1233-34 (5th Cir. 1989); Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 1980). The employer need not prove the absence of a discriminatory motive. Whiting, 616 F.2d at 121. Once the employer articulates its nondiscriminatory reason, the burden is again on the plaintiff to prove that the articulated legitimate reason was a mere pretext for a discriminatory decision. Id. Ultimately, the burden of persuasion rests on the plaintiff, who must establish the statutory violation by a preponderance of the evidence. Id. (citing Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1382 (5th Cir. 1980)). Even if the plaintiff succeeds in revealing the defendants' reasons for terminating him were false, she still bears the ultimate responsibility of proving the real reason was unlawful "intentional discrimination." See St. Mary's, 125 L.Ed.2d at 424 ("It is not enough to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination."). This is not to say that the employee is required to prove that the reason is in fact false, but only that the proffered reason was not the only real motivation behind the employer's decision and that discrimination was at least a substantial motivating factor in that decision. Again, a plaintiff is not required to prove that discrimination based upon race was the sole reason for the termination, because the employer may be held liable under Title VII even if legitimate reasons — such as the defendant's legitimate, nondiscriminatory reason — also played a role in the plaintiff's termination.
[S]ince we know that the words "because of" do not mean "solely because of," we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations.Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 109 S.Ct. 1775, 1785, 104 L.Ed.2d 268 (1989). Nevertheless, the fact that a plaintiff may establish genuine issues of material fact as to his prima facie case does not necessarily mean that she may avoid summary judgment on his discrimination claims. LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 450 (5th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996). Rather, to avoid the grant of a properly made motion for summary judgment, a plaintiff must ultimately present evidence sufficient to make a reasonable inference of discriminatory intent. LaPierre, 86 F.3d at 450.
[A] jury issue will be presented and a plaintiff can avoid summary judgment . . . if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [race] was a determinative factor in the actions of which the plaintiff complains.Id.(citing Rhodes, 75 F.3d at 994). According to the United States Supreme Court, such evidence of falsity will permit a trier of fact to infer that the discrimination was intentional:
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, "[n]o additional proof of discrimination is required. . . ."St. Mary's, 509 U.S. at —, 113 S.Ct. at 2749. Determining that a particular reason did not actually serve as the sole basis for termination is an entirely different inquiry than determinating that the proffered reason is factually false. For example, whether an employer fired a person for being incompetent is a different question from whether person is in fact incompetent. It is important to remember the distinction.
At the summary judgment stage, plaintiff need not present a prima facie case of discrimination, but must simply raise a genuine issue of material fact as to the existence of a prima facie case. Thornborough v. Columbus Greenville R. Co., 760 F.2d 633, 641 n. 8 (5th Cir. 1985). In order for the typical Title VII plaintiff to establish a prima facie case of racial discrimination in a disparate treatment context, she must show that she:
1) was a member of a protected class;
2) was qualified for the position that she held;
3) suffered an adverse employment decision; and
4) the plaintiff's employer replaced her with a person who is not a member of the protected class, or in cases where the employer does not intend to replace the plaintiff, the employer retains others in similar positions who are not members of the protected class.Meinecke v. H R Block Income Tax Sch., Inc., 66 F.3d 77, 83 (5th Cir. 1995); Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 596 (5th Cir. 1992); Thornbrough v. Columbus Greenville R. Co., 760 F.2d 633, 642 (5th Cir. 1985) (citing Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982)).
) Temporary Operator Position
The defendants contend in their motion that to the extent that the plaintiff makes a claim of disparate treatment regarding any failure to award her the "temporary operator position" for which she applied, her claim must fail as she is incapable of establishing the final element of her prima facie case. Menola Smith, a black female, was awarded the position. As such, the person hired instead of the plaintiff is not outside the plaintiff's protected racial and gender classes. Consequently, the defendants argue, it is impossible for the plaintiff to prevail. Defendants' Brief, p. 13 ("Since Ms. Smith was of the same race and sex as Ms. Walker, there is no way Ms. Walker can establish a prima facie case with regards to her failure to receive the promotion to the temporary operator position.").
The elements of a prima facie case of discrimination are not static. They vary with the facts of each particular case.McDonnell-Douglas, 411 U.S. at 800, 93 S.Ct. at 1823 ("The facts necessary will vary in Title VII cases, and the specification . . . of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations."); Thornburough, 760 F.2d at 641 ("The necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather, they vary depending upon the facts of a particular case."). It is important to remember that the plaintiff's burden of establishing a prima facie case of discrimination is not onerous. Price Waterhouse v. Hopkins, 490 U.S. 228, 270, 109 S.Ct. 1775, 1801, 104 L.Ed.2d 268; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981); Arenson v. Southern Univ. Law Center, 911 F.2d 1124, 1127 (5th Cir. 1990). Reduced to its essence, in order to establish a prima facie case of racial discrimination, the plaintiff need only prove that he was terminated under circumstances that give rise to an inference of unlawful discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215; see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433, (1996) (noting "the prima facie case requires `evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion. . . .') (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)) (emphasis added)).
As the elements of a prima facie case are not cast in stone, it is not imperative that the plaintiff establish that the person ultimately hired for the position she applied for was outside of her protected class. It is not, then, "impossible" for her to establish a prima facie case merely because Ms. Smith was of the same race and gender as the plaintiff. Nevertheless, she must come forward with some proof that she was not awarded the position under circumstances giving rise to an inference of discrimination. In the case at bar, she has failed to do so. Even though the burden of establishing a prima facie case is not onerous, the plaintiff has failed to come forward with sufficient proof to prevail on a disparate treatment claim regarding the defendants' failure to hire her as a "temporary operator." There is nothing before this court to serve as a substitute for the final element of her prima facie case for either race or gender discrimination with regard to this claim. The plaintiff argues that the testing procedures which resulted in Ms. Smith's promotion were unfairly administered, and that Ms. Smith received her promotion based upon improper sexual relations with supervisory employees within Uncle Ben's. There is insufficient admissible evidence before this court, however, to establish that there was any connection between the plaintiff's failure to receive this promotion and any racial or gender animus on the part of the defendants. While the court disagrees with the defendants' reasoning, it does agree with their conclusions on this matter. The defendants' motion shall be granted as to this claim and it shall be dismissed.
) Purchasing Coordinator II Position
As to the plaintiff's disparate treatment claim that she was denied as position as "Purchasing Coordinator II," the defendants do not dispute for purposes of their motion that the plaintiff may be able to establish a prima facie case. They do contend, however, that there is no genuine issue of material fact regarding whether she would be able to prevail on the ultimate question of discrimination. The legitimate nondiscriminatory reason proffered by the defendants regarding this claim is that the individual promoted instead of the plaintiff, Ms. Terri Chadwick, was more qualified for the promotion. This proffer is sufficient for the defendants to meet their burden to "articulate some legitimate, nondiscriminatory reason for the discharge."
The plaintiff must now come forward with summary judgment evidence sufficient to create a genuine issue of material fact regarding the true motivations of the defendants in not promoting her to the position given Ms. Chadwick. When looking to the record evidence in this matter, the court cannot say that the plaintiff has come forward with any more than a scintilla of evidence in support of her claim in this regard. While the plaintiff argues several reasons why Ms. Chadwick was awarded the position to the exclusion of the plaintiff, the admissible evidence before the court would not lead a reasonable juror to believe that the plaintiff was subjected to disparate treatment discrimination based upon her race.
All of the plaintiff's proffered evidence in this regard is essentially only relevant to whether Ms. Chadwick was in fact more qualified than the plaintiff, i.e., whether the defendants' proffered justification is in fact true. As already noted, merely proving that the legitimate nondiscriminatory reason offered by the defendants is false is generally insufficient to circumvent the entry of summary judgement. While "the factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination," it will not always do so. St. Mary's, 509 U.S. at —, 113 S.Ct. at 2749. In this case, the undersigned cannot say that a reasonable trier of fact could determine that the plaintiff has been subjected to disparate treatment discrimination in the defendants' failure to promote her to "Purchasing Coordinator II." The defendants' motion shall be granted as to this claim, and this claim of the plaintiff shall be dismissed.
Hosfile Work Environment
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits discrimination "against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). The plaintiff charges that the defendants created a hosfile environment at Uncle Ben's in which the plaintiff was forced to work. "Hosfile work environment" sexual or racial harassment occurs when an employer's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hosfile, or offensive environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). The offensive action must create an environment hosfile or abusive to the reasonable person. Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). Whether an environment meets this criteria depends upon the "totality of the circumstances." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993);DeAngelis v. El Paso Municipal Police Officers Ass'n. 51 F.3d 591, 594 (5th Cir.), cert. denied, — U.S. —, 116 So. Ct. 473, 133 L.Ed.2d 403 (1995).
In determining whether a working environment is "hosfile" or "abusive," all the 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.DeAngelis v. El Paso Mun. Police Officers Ass'n. 51 F.3d 591, 594 (5th Cir. 1995). As with any Title VII claim, the court utilizes the venerable McDonnell-Douglas framework of shifting burdens of production. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As modified to apply to her workplace harassment claims, this framework requires the plaintiff to demonstrate that:
(1) she belongs to a protected class;
(2) she was subject to unwelcome sexual (or racial) harassment;
(3) the harassment was based on sex (or race);
(4) the harassment affected a term, condition, or privilege of employment (i.e., that the harassment was sufficiently pervasive or severe to create an abusive work environment); and
(5) the employer knew or should have known of the harassment and failed to take prompt remedial action.Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996) (citing Jones v. Flagship Int'l. 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987)). While the plaintiff must prove each element of the prima facie case by a preponderance of the evidence to prevail at trial, a genuine issue of material fact as to each element will preclude an award of summary judgment. Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (citingThornbrough v. Columbus Greenville R.R., 760 F.2d 633, 640-41 (5th Cir. 1985)).
The unwelcome harassment in the case at bar charged by the plaintiff is that she was required to work in a "sexually charged" atmosphere, where the exchange of sexual favors for workplace benefits was commonplace. In addition, Ms. Walker asseverates that Uncle Ben's workplace atmosphere was pervaded by racial preferences. In support of these allegations, however, she presents only conclusory and anecdotal evidence. For example, in explaining why the plaintiff believes that a hosfile work environment resulted in Ms. Chadwick receiving the "Purchasing Coordinator II" position in lieu of the plaintiff, Ms. Walker states:
The plaintiff maintains that it was common knowledge that Terri Chadwick and Jim Alien had a reputation of being personally involved with each other and that the relationship had soured. The environment at Uncle Ben's was abusive and hosfile due to sexual favoritism that was the modus operandi of the company.
Plaintiff's Response, Affidavit of Debra Walker, p. 19. "Conclusory assertions cannot be used in an affidavit on summary judgment."Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992);Watts v. Kroger, 955 F. Supp. 674, 678 (N.D. Miss. 1997). Furthermore, Federal Rule of Civil Procedure 56(e) states that, with regard to a summary judgment motion, supporting or opposing affidavits "shall set forth such facts as would be admissible in evidence . . ." Fed.R.Civ.P. 56(e). Witnesses would not be permitted to testify to these facts or to many of the broad statements contained in the submissions before this court. Based upon the admissible evidence before this court, no reasonable juror could conclude that Ms. Walker was subjected to a hosfile work environment based upon either race or gender. The defendants are entitled to the entry of a judgment as a matter of law on these claims, and the court shall dismiss them.
Retaliation
) Under Title VII
The McDonnell Douglas framework is also applicable to this claim. Therefore, a plaintiff establishes a prima facie case for unlawful retaliation by proving (1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996); Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). An employee has engaged in activity protected by Title VII if she 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);Grimes, 102 F.3d at 140; Long, 88 F.3d at 304. Further, as to whether an "adverse employment decision" occurred:
our court has stated that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions". Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). "Ultimate employment decisions" include acts "such as hiring, granting leave, discharging, promoting, and compensating". Id. at 782 (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981)).Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).
As a general rule, however, a plaintiff must first obtain a "right to sue" letter from the EEOC in order to proceed with a Title VII retaliation claim before this court. Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th Cir. 1996); Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863 (5th Cir. 1983) (although filing of EEOC charge is not jurisdictional prerequisite, it "is a precondition to filing suit in district court"). A plaintiff who has Title VII discrimination claims properly pending before a district court need not obtain a "right to sue" letter to return to that court and charge retaliation for the filing of the original claims. See, e.g., Carter v. South Cent. Bell, 912 F.2d 832, 841 (5th Cir. 1990);Gottlieb v. Tulane Univ. of La., 809 F.2d 278, 284 (5th Cir. 1987); Gupta v. East Tex. State Univ., 654 F.2d 411. 414 (5th Cir. 1981): Ryman v. Office Professional Emp. Intern. Union, 628 F. Supp. 421, 429 (E.D. Tex. 1985). At the time of the alleged retaliatory acts in this case, however, the plaintiff did not have any Title VII claims pending either before this court or before the EEOC. Indeed, her allegation is not that the defendants retaliated against her for filing claims of discrimination with the EEOC or with a court of law, but for making complaints to members of management regarding perceived discriminatory practices. As such, she must obtain a "right-to-sue" letter as a precondition to filing suit on those claims. She has not, and therefore those claims are properly dismissed on summary judgment,
b) Under § 1981
The plaintiff responds that as her claims of retaliation are also brought pursuant to the provisions of § 1981, this court may indeed address those claims. Plaintiff's Response, p. 28 ("As the plaintiff raises harassment/retaliation under 42 U.S.C.A. § 1981, she is not required to raise the issue with the EEOC."). As an initial matter, the court notes that none of the plaintiff's claims for retaliation in response for making complaints about sexual harassment are cognizable under § 1981, as that statute does not provide a remedy for gender discrimination. Pavne v. Travenol Laboratories Inc., 673 F.2d 798, 815 (5th Cir. 1982); Bobo v. ITT. Continental Baking Co., 662 F.2d 340 (5th Cir. 1981); Messer v. Menno, 936 F. Supp. 1280, 1285 (W.D. Tex. 1996) ("Gender discrimination does not fall within the scope of § 1981.") (citing Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976)).
Additionally, the court is of the opinion that no genuine issue of material fact exists with regard to whether a causal connection is present between any complaint she may have made and the loss of her employment with Uncle Ben's. The plaintiff has made several sweeping statements regarding complaints of racial discrimination that she has made. What is missing, however, is any evidence that connects these complaints to adverse employment decisions against her. Even when casting the facts in the light most favorable to Ms. Walker, the proof before this court regarding any claim of retaliation is essentially only that Ms. Walker made complaints regarding perceived racial discrimination at some unspecified times, and that she later was denied some promotions and ultimately lost her job. This alone is insufficient to avoid the grant of summary judgment on these claims. In light of the admissible evidence before the court, no reasonable juror could conclude that Ms. Walker was retaliated against because of complaints she made. The motion of the defendants shall be granted as to the plaintiff's claims of retaliation, and those claims shall be dismissed.
III. Conclusion
After careful consideration of the defendants' motion for summary judgment, the court is of the opinion that it is well taken as to all of the plaintiff's claims. Crucial to today's decision by the court is the failure of the plaintiff to come forward with admissible evidence in support of her claims. While the parties have submitted substantial documentation in conjunction with the motion before the court, it is not this court's duty to sift though all of the evidence in this case. Allegations of fact without sufficient direction to this court of the origin of those allegations do not satisfy Rule 56. This court has no duty to scour the record on behalf of the Plaintiff and locate the facets of the case favorable to her. Jones v. Sheehan, Young Culp. P.C., 82 F.3d 1334, 1338 (5th Cir. 1996) ("Rule 56, therefore, saddles the non-movant with the duty to `designate' the specific facts in the record that create genuine issues precluding summary judgment, and does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant's opposition.") (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992)). The plaintiff has failed to direct this court to sufficient admissible record evidence in support of her claims. Therefore, the undersigned shall grant the defendants' motion and dismiss this cause.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSING CAUSE
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) the motion of the defendants for the entry of summary judgment on their behalf with regard to the plaintiff's claims is hereby GRANTED;
) the plaintiff's claims in this matter are hereby DISMISSED; and
) this case is CLOSED.
SO ORDERED.