Opinion
CIVIL ACTION NUMBER: 03-0818, SECTION: "J"(5)
January 9, 2004
ORDER AND REASONS
This case is before the Court upon the consent of the parties pursuant to 28 U.S.C. § 636 (c). (Rec. doc. 7). Presently before the Court is defendant's motion for summary judgment and plaintiff's opposition thereto. (Rec. docs. 8, 13, 16, 17). For the following reasons, defendant's motion is granted.
Derrick Washington, plaintiff herein, an African-American male, was hired by the Town of Gramercy ("Gramercy") Police Department as a Patrol Officer in 1998. (Rec. doc. 13). Plaintiff was subsequently promoted to Shift Sergeant in August of 1999; however, on December 3, 2001, plaintiff's rank was demoted to Patrol Officer. (Rec. doc. 8, ex. 2, para. 8; Rec. doc. 13, ex. B, para. 2). Chief of Police, Ken Poché ("Poché"), made the decision both to hire and demote plaintiff. (Rec. doc. 8. ex. 2). Plaintiff resigned from the Police Department in December of 2001. (Id.).
Plaintiff apparently interviewed for the job in January of 1998 and commenced working in July of that year. (Rec. doc. 8, ex. 2; Rec. doc. 13, ex. B, para. 2).
In the months prior to his resignation, plaintiff was the focus of several disciplinary actions. Specifically, in September of 2001, plaintiff was verbally reprimanded for failing to effectively monitor subordinate officers under his command. (Rec. doc. 8, ex. 2, para. 6(c)). Further, that October, plaintiff was reprimanded both for his failure to enforce the town's open container policy and for having exceeded the town's telephone usage policy on his department provided cell phone. (Rec. doc. 8, ex. 2, para. 6(d) and (e) and 2(A).
In his opposition to defendant's motion, plaintiff disputes whether he was ever made aware of the open container policy reprimand prior to his resignation. (Rec. doc. 13, ex. B, para. 10). Plaintiff also maintains that he paid all owed cell phone charges but does not specifically dispute Poché's assertion that he was reprimanded about violations of the telephone usage policy. (Rec. doc. 13, ex. B, paras. 14, 15).
Notably, at the time that the telephone usage issue arose, plaintiff informed Poché of the apparent use of racial slurs in the workplace. Poché instructed plaintiff to prepare a report detailing the alleged incident and Poché subsequently conducted an investigation into the allegations himself. (Rec. doc. 8, ex. 2, para. 6(e)). Plaintiff did not file a written report concerning the incident as he was directed to do. (Id.).
Plaintiff contends that the use of racial slurs was brought to Poché's attention twice, once in the late summer of 2001 and once in October of that year. (Rec. doc. 13, ex. B, paras. 4-9). Poché, on the other hand, claims that only the October 2001 incident was reported to him. (Rec. doc. 8, ex. 2, para. 6(e)).
Poché's investigation revealed that in September of 2001, plaintiff overheard a janitor use a racial epithet directed to a group of individuals who had played a prank on the police station. (Rec. doc. 8, ex. 2, para. 6(e)). In response to this discovery, poché issued a written reprimand to the janitor. (Id.). No additional complaints about the janitor were made subsequent to the reprimand.
Plaintiff failed to report to work as scheduled on October 26, 27, 28, and 31 and November 1, 2001. (Rec. doc 8, ex. 2, paras. (f)-(k)). Failure to notify the department of an absence is a violation of the defendant's personnel policy. (Id.).
Plaintiff does not dispute that he failed to work his scheduled shifts on the noted dates but simply contends that no policies existed for reporting illnesses and that he turned in doctor's excuses for all his absences from work. (Rec. doc. 13, ex. B, paras. 16, 17). The defendant's policies that were in effect both before and after November 1, 2001 provided mechanisms for requesting leave and for notifying the department of those requests. (Rec. doc. 8, ex. 1, pt. 1, §§ 5.7, 5.8; ex. 1, pt. 2 §§ 5.7, 5.8). The policies further provided that an infraction of any of the department's rules was grounds for disciplinary action. (Rec. doc. 8, ex. 1, pt. 1, § 2.3; ex. 1, pt. 2, §§ 2.3, 2.6(19)).
In response to plaintiff's personnel policy infractions, on November 6, 2001, poché requested permission from the Gramercy Town Council to terminate plaintiff's employment. (Rec. doc. 8. ex. 2(B). The Council denied poché's request and on December 3, 2001, poché demoted plaintiff from Shift Sergeant to Patrol Officer. (Rec. doc. 8, ex.2, para. 8; Rec. doc. 13, ex. B, para. 2). poché based the demotion ". . . on, among other things . . .", plaintiff's performance issues. (Rec. doc. 8, ex. 2, para. 9). This demotion, while a change in rank, did not result in a change in plaintiff's pay or benefits. (Id.). Plaintiff resigned from the Gramercy Police Department the day following his demotion. (Rec. doc. 13, ex. B, paras. 1, 27).
Plaintiff contends that he was not made aware of the reasons for which termination was sought prior to his resignation. (Rec. doc. 13, ex. B, paras. 12, 13).
Applicable Law
Plaintiff alleges the Town of Gramercy retaliated against him in violation of Title VII of the Civil Rights Act of 1964, as amended, in response to his complaint concerning the use of racial epithets in the workplace. Although he pled such in his original petition, plaintiff concedes in his opposition memorandum that he cannot sustain a hostile work environment claim. (Rec. doc. 13, p. 7). Defendant now moves for summary judgment, arguing initially that plaintiff has failed to establish a prima facie case of retaliation and, alternatively, that if aprima facie case has been established, that it has proffered legitimate, non-discriminatory reasons for the employment actions taken against plaintiff.
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Under Title VII, a plaintiff relying upon circumstantial evidence bears the initial burden of establishing a prima facie case of unlawful retaliation. Ackel v. National Communications. Inc., 339 F.3d 376, 385 (5th Cir. 2003). The prima facie case is established on a showing (1) that the plaintiff was engaged in a protected activity, (2) that he suffered an adverse employment action, and (3) that a causal link existed between the protected activity and the adverse employment action. Raggs v. Mississippi Power Light Company, 278 F.3d 463, 471 (5th Cir. 2002). Failure to establish a prima facie case warrants summary judgment in favor of the defendant. Banks v. East Baton Rouge School Board, 320 F.3d 570, 575 (5th Cir. 2003).
If a prima facie case is established, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973); Mayberry V. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995). If a legitimate reason is proffered, summary judgment is appropriate unless the plaintiff can prove that the stated rationale is merely a pretext for unlawful discrimination.McDonnell-Douglas, 411 U.S. at 801-03, 93 S.Ct. at 1825-26. In considering whether an employer's stated reason was pretextual, the trier of fact may look to the plaintiff's evidence establishing a prima facie case as well as inferences drawn from it. Reeves v. Sanderson. 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000). Acknowledging the Reeves decision, the Fifth Circuit has held that ". . . a jury issue will be presented and a plaintiff can avoid summary judgment and judgment as a matter of law 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 plaintiff complains." Vadie v. Mississippi State University. 218 F.3d 365, 374 n. 23 (5th Cir. 2000) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993-994 (5th Cir. 1996) (en banc)).
While the Reeves decision established that a prima facie case plus "sufficient evidence" may warrant a finding of liability, it cautioned that in certain cases, despite the production of evidence rebutting the employer's proffered rationale, a rational fact finder could ultimately find the act nondiscriminatory. Reeves, 530 U.S. at 148, 120 S.Ct at 2109. Specifically, the Court stated that ". . . an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. Following Reeves, the Fifth Circuit has held that "`[m]erely disputing [an employer's] assessment of [a plaintiff's] work performance will not necessarily support an inference of pretext.'"Evans v. City of Houston. 246 F.3d 344, 355 (5th Cir. 2001) (quoting Shackelford v. Deloitte Touche LLP, 190 F.3d 398, 408 (5th Cir. 1999)). Once a case has reached the pretext stage, "`. . . the only question on summary judgment is whether the evidence of retaliation, in its totality, supports an inference of retaliation.'" Evans, 246 F.3d at 355 (quotingShackelford, 190 F.3d at 407).
Accordingly, because the plaintiff's burden at summary judgment does not rise to a level of "but for" causation linking the employee's protected activity to the adverse employment action taken, summary judgment is inappropriate if the plaintiff can establish a prima facie case plus sufficient evidence of pretext. See Gee v. Principi, 289 F.3d 342, 348 (5th Cir. 2002) (finding summary judgment inappropriate when plaintiff established a prima facie case and provided sufficient evidence to cast doubt on the legitimate rationale proffered by the employer).
Protected Activity
As noted earlier, in order to establish a prima facie case of retaliation under Title VII, a plaintiff must first demonstrate that he was engaged in protected activity. Raggs, 278 F.3d at 471. Protected activity includes opposition to any practice rendered unlawful by Title VII. Green v. Administrators of the Tulane Educational Fund. 284 F.3d 642, 657 (5th Cir. 2002). To be considered protected activity, the conduct complained of need not actually be in violation of Title VII; rather, plaintiff need only show that a complaint was made. Id. Complaints made to superiors based on the "reasonable belief" that conduct violated Title VII may constitute protected activity. Long v. Eastfield College, 88 F.3d 300, 305-06 (5th Cir. 1996). In Long;, a complaint to a superior was considered protected activity when made in response to alleged conduct including racial slurs, disparate treatment on the basis of Hispanic heritage, the creation of a hostile work environment, and threats of retaliation for filing complaints. Id. Because protected activity extends to complaints made on the reasonable belief that the conduct complained of violated Title VII, plaintiff's October 2001 complaint to Chief poché concerning the use of racial epithets in the workplace qualifies as protected activity.
Adverse Employment Action
It is uncontested that plaintiff was demoted from Shift Supervisor to Patrol Officer by Chief poché. This demotion involved a change in rank and responsibilities; however, it did not diminish Washington's pay or benefits. Defendant argues that because the demotion was in title only, it could not constitute an adverse employment action because it did not involve an "ultimate" employment decision. For purposes of Title VII, a demotion constitutes an adverse employment action. Sharp v. City of Houston. 164 F.3d 923, 933 n. 21 (5th Cir. 1999). Even a transfer can amount to a "demotion" so as to qualify as an adverse employment action ". . . if the new position proves objectively worse ? such as being less prestigious or less interesting or providing less room for advancement." Id. at 933. In this case, while Washington continued to receive the same salary after his demotion, the decrease in rank and the removal of supervisory job duties compels the conclusion that the Patrol Officer position was objectively worse, thus qualifying it as an adverse employment action. Plaintiff has established the second element of hisprima facie case of retaliation.
Because plaintiff's demotion is itself an adverse employment action, the Court need not decide whether plaintiff was constructively discharged.
Causal Link
At the prima facie stage, the standard for satisfying the causation element is much less stringent than a "but for" causation standard.Long, 88 F.3d at 305 n. 4. Nonetheless, a plaintiff must produce ". . .some evidence of a causal link between the protected activity and the adverse employment action . . ." Ackel, 339 F.3d at 385. An employee need not prove that his protected activity was the sole motivating factor in prompting the employer's challenged employment action. Long, 88 F.3d at 305 n. 4. "Close timing between an employee's protected activity and an adverse action against [him] may provide the `causal connection' required to make out a prima facie case of retaliation." Swanson v. General Services Administration, 110 F.3d 1180, 1188 (5th Cir.),cert. denied. 522 U.S. 948, 118 S.Ct. 366 (1997). However, ". . . the mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case." Id. at 1188 n. 3.In the matter at hand, two months elapsed between plaintiff's October 2001 complaint to poché about the use of racial epithets at the workplace and his demotion. Temporal proximity may constitute evidence of causation. See Weeks v. NationsBank, N.A., 2000 WL 341257 at *3 (N.D.Tex. 2000) (citing Garrett v. Constar, Inc., 1999 WL 354239 (N.D.Tex. 1999) (four month time period sufficient to satisfy causal connection). But see Contreras v. Suncast Corp., 237 F.3d 756, 765 (7th Cir.), cert. denied. 534 U.S. 824, 122 S.Ct. 62 (2001) (temporal proximity, standing alone, insufficient to establish a causal connection for purposes of the prima facie case). The Supreme Court has also acknowledged that temporal proximity, standing alone, may be sufficient to establish the causal connection when the timing between the protected activity and the adverse employment action is "very close". Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001).
In Breeden. the Court noted that periods of three months or greater had been found insufficient to establish causation. Id.
In the present case, the Court believes that the two month span at issue is indicative of causation for purposes of proving up plaintiff'sprima facie case. In reaching this conclusion, the Court looks to the Fifth Circuit's position on the appropriate burden in finding a causal connection on a retaliation claim. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (citing Simmons v. Camden County Board Of Education. 757 F.2d 1187, 1189 (11th Cir. 1985) (holding that the "causal link" element is satisfied when the plaintiff shows that the employment decision and his protected activity "were not wholly unrelated"). Plaintiff was demoted approximately two months after engaging in protected activity. Recognizing that the plaintiff's burden at the summary judgment stage is significantly less stringent than what is ultimately required to succeed on the merits, the temporal connection between plaintiff's protected activity and the adverse employir. 9th action satisfies the third prong of the prima facie case. See Long. 88 F.3d at 305 n. 4.
Legitimate Employer Rationale
Once a plaintiff establishes a prima facie case of retaliation under Title VII, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action.Mayberry, 55 F.3d at 1089. Here, defendant provides the declaration of Chief poché who states that plaintiff's demotion was based on, "among other things", plaintiff's performance problems. Demotion in response to work-related performance problems or disciplinary violations is a legitimate and non-discriminatory employment action. See McLaughlin v. WT Offshore Inc., 78 Fed. Appx. 334, 338, 2003 WL 22348926 at *3 (5th Cir. 2003) (finding elimination of employee's. job after employer discovered other workers who could perform same task with fewer errors non-discriminatory); Jarjoura v. Ericsson Inc., 266 F. Supp.2d 519, 531 (N.D. Tex.), aff'd, 2003 WL 22965575 (5th Cir. 2003) (finding misuse of corporate credit card a non-retaliatory rationale for employer's decision to terminate employee).
Evidence of Pretext
Because the defendant has proffered a legitimate, non-discriminatory reason for the challenged employment action, the burden shifts back to the plaintiff to demonstrate that the proffered rationale is merely a pretext for unlawful discrimination. McDonnell-Douglas 411 U.S. at 802-04, 93 S.Ct. at 1825-26. Failure to establish pretext warrants summary judgment in defendant's favor. Id. In the present case, plaintiff points to two acts of the defendant as evidence that the employment action taken against him was pretextual and retaliatory. Plaintiff initially contends that Chief poché failed to notify plaintiff that written reprimands were being placed in his personnel file. Plaintiff additionally suggests that other similarly situated officers were treated more favorably than himself. Plaintiff contends that these incidents indicate that the proffered rationale for plaintiff's demotion, performance problems, was merely pretexutal.
Plaintiff fails to rebut the defendant's proffered rationale for demoting him. The Fifth Circuit has held that summary judgment is appropriate when the evidence overwhelmingly supports the defendant's position, despite circumstantial evidence of pretext.Sreerarn v. Louisiana State University Medical Center-Shreveport, 188 F.3d 314, 320 (5th Cir. 1999) (citing Brown v. CSC Logic Inc., 82 F.3d 651, 656 (5th Cir. 1996)). This accords with the Supreme Court's holding in Reeves that summary judgment is appropriate when the plaintiff creates only a weak issue of fact as to whether the employer's reasons were untrue. Reeves. 530 U.S. at 148, 120 S.Ct at 2109.
Initially, defendant points to the "same actor" inference as evidence that the decision to demote plaintiff was not the result of discriminatory animus. This inference suggests that when the same individual both hires and fires an employee, that the firing is unlikely to be a result of discriminatory motive. See Brown, 82 F.3d at 658. Accordingly, such an inference should be considered as a factor when inquiring into the truthfulness of the employer's proffered justification.
Furthermore, plaintiff's summary judgment evidence does not raise significant questions as to the underlying motives of the defendant. Plaintiff points to the testimony of Lieutenant Detillier as evidence of disparate treatment, suggesting that because Lieutenant Detillier had "several [disciplinary] incidents" without subsequent demotion, that defendant's demotion of plaintiff was pretextual. However, the incidents involving Detillier were not analogous to those involving plaintiff, which contravenes the "similarly situated" relation plaintiff presupposes. In addition, Detillier, like plaintiff, was disciplined for his workplace infractions, negating plaintiff's argument that Detillier was treated more favorably. Specifically, Detillier was suspended on at least two occasions for disciplinary violations. (Rec. doc, 13, ex. C). Notably, Detillier also testified that he, like plaintiff, was not aware of formal write-ups being placed in his personnel file.
Lieutenant Detillier testified in his deposition that he was suspended on at least three occasions for workplace infractions, including a bench warrant being issued for his failure to appear in court and conduct unbecoming of an officer. (Rec. doc. 13, ex. C).
Accordingly, plaintiff has at best established that he was subjected to a different disciplinary action for a different personnel policy infraction and that neither he nor Lieutenant Detillier were properly notified of write-ups being placed in their folders. In light of defendant's proffered rationale for demoting plaintiff, the Court finds the evidence of pretext provided by plaintiff, in its totality, is insufficient to support the inference of retaliation necessary to withstand summary judgment. See Shackelford, 190 F.3d at 407.
For the foregoing reasons, defendant's motion for summary judgment is hereby granted. Judgment will be entered accordingly.