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noting plaintiff need not prove specific intent but must nonetheless make a greater showing of harassment than that required for hostile work environment
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EP-03-CA-523-KC.
January 19, 2006.
ORDER
On this day, the Court considered Defendant's Motion for Summary Judgment ("Motion"). For the reasons set forth herein, Defendant's Motion is DENIED.
I. BACKGROUND
The following background is derived from the undisputed facts as found in the parties' motions in support of and opposition to summary judgment in the present employment discrimination action.
Letterkenny Army Depot ("LAD") is an operational unit of the United States Department of the Army, that is responsible for the Army's air defense missile systems. Def.'s Mot. for Summ. J. ¶ 3. LAD established the Logistics Center of Excellence ("LCOE") at Fort Bliss, Texas, in order to rebuild Patriot missile battery launchers. Id. Defendant Vertex Aerospace, L.L.C. ("Vertex") contracted to provide field services to the Army at Fort Bliss and operates the LCOE. Id. In 1998, Vertex hired Plaintiff Theoga Carrington ("Carrington"), an African-American, to work in the LCOE paint shop. Id. ¶ 5. Between 1999 and 2000, Carrington served as an inspector, paint shop supervisor, and team leader. Id.
During these same years, William Fuller served as site supervisor. Id. ¶ 6. Under his supervision, prior to October 2000, the paint shop was required to deliver launchers at a quality declared to be "usable" or "nearly like-new." Id. This standard did not require launchers to be stripped of old paint, sandblasted, pre-washed, or primed. Id. At this time, Fuller gave Carrington favorable performance reviews. Id.
However, in October of 2000, the Army changed its requirements to a quality declared to be "new" or "like-new." Id. ¶ 7. This required that the launchers be stripped of old paint, sandblasted, pre-washed, and primed. Id. After implementation of these new standards, quality control inspectors rejected the painted launchers with greater frequency. Id. ¶ 8. In addition, quality control inspectors inspected the launchers when Carrington was not present. Id.
In its Motion for Summary Judgment, Vertex refers to these new standards as "higher standards." Def.'s Mot. for Summ. J. ¶ 7. Carrington disputes this characterization, claiming that the new standards were not "higher," but merely required additional processes. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 3. Regardless of whether the standards were actually "higher" or not, the evidence establishes, and Carrington concedes, that different standards were indeed adopted around October of 2000. Id.; see also id. Ex. 2-E 23-24; id. Ex. 2-G 22-30.
In Spring of 2001, Vertex hired a new site supervisor, Don Price, to replace Fuller. Id. ¶ 9. Carrington opined to both Price and the on-site paint shop coordinator that the new standards were unrealistic and unattainable. Id. Price disagreed. Id. Carrington, nevertheless, maintained his opinion that the new standards were impossible to attain, and subsequently received a written counseling report after inspectors rejected two more launchers on April 12, 2001. Id. ¶ 10.
On April 16, 2001, Carrington received a second written counseling report after he failed to report the absence of one of the employees on his team. Id. ¶ 11. At some later point, Price recommended that Carrington be demoted from inspector/team leader on the day shift to secondshift paint team leader. Id. ¶ 12. Vertex claims that this personnel decision was prompted by both an anticipated reduction in the number of launchers shipped to the LCOE facility and by Carrington's deficiencies as a supervisor. Id. This demotion relieved Carrington of inspection and administrative duties so that he could focus solely on painting. Id.
Carrington complained to Juan Velez, Vertex's operations manager in Oklahoma, about the proposed downgrade in his status. Id. ¶ 13. During this conversation, the new standards were discussed. Id. Carrington expressed his opinion that the new standards were unrealistic. Id. Velez agreed with Price that they were not. Id.
Carrington began work with the second shift on July 18, 2001. Id. ¶ 14. Soon after, deficiencies were noted in that team's painting. Id. On July 31, 2001, Carrington received a written reprimand for numerous deficiencies in painting quality, which included a recommendation that Carrington be demoted to a painter position on the day shift. Id. ¶ 15. After receiving notice of his demotion, Carrington resigned. Id.
In his deposition, Carrington admits that no one used racially offensive language with him. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. Ex. 2-A 168:25-169:12. (hereinafter "Plf.'s Dep."). Nonetheless, Carrington testified that Vertex discriminated against him on the basis of his race, specifically referring to Vertex employees Price, Chris Bellevieux, Velez, and Stuart Arnoldussen. Id. 169:13-170:8. As to Price, Carrington stated that the relationship between the two "[s]tarted off bad" and escalated when Carrington was asked to give Arnoldussen his job. Id. 181:21-182:9. Carrington believed that Price's inspections were racially motivated. Id. 181:2-183:8. As to Bellevieux, Carrington stated that "he was . . . harassing me more than . . . Price was." Id. 178:6-7. He would "dress me down, chew me out, jack me around about it." Id. 179:4-5. Other than these criticisms, Carrington testified that there was no other conduct that could be considered racially motivated. Id. 181:2-6. As to Velez, Carrington's only allegation of discriminatory conduct was the telephone call concerning Carrington's complaints, during which Carrington claimed Velez' conduct was discriminatory because he sided with Price, rather than with Carrington himself. Id. 173:18-22. Finally, as to Arnoldussen, Carrington testified that Arnoldussen:
"[U]nderstood exactly how the process is supposed to go. But he would not support me in that process when I explained it to [Bellevieux] and them. He would not — when I would tell them that we painted at night under the poor conditions, he knew that, but he would not go — he would not agree to that when we talked with [Bellevieux]. He agreed with [Bellevieux] and . . . Price . . . There were many other incidents like this that [were] not recorded."Id. 170:9-171:5.
When asked how this conduct was racist, Carrington responded "I believe he was lying because of my race. . . . I just believe he was doing it because of my race, because of my race. Id. 172:1-8.
Carrington also argues that, even though no overt racial comments were made against him, Vertex and its employees imposed an unrealistic standard of perfection upon him because of his race. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 15. In support of his argument, Carrington offers evidence from three LAD employees that the Army did not consider his work performance deficient. Id. First, Carrington provides testimony from Terrill Carmack, an LAD paint supervisor, that (1) Carmack worked closely with Carrington, (2) Carrington was capable of, and indeed performed his job, (3) Carmack himself did not see any work performance problems with Carrington, and (4) Price never complained to Carmack about Carrington's performance. Id. Ex. 2-F 25:25-26:14, 63:10-64:1, 58:4-6, 33:1-9, 39:17-19 (hereinafter "Carmack Dep."). In addition, Carrington also provides testimony from William Smith, an LAD inspector, that (1) Smith did not believe there were excessive defects with Carrington's work, (2) Carrington's work did not differ significantly from that of other team leaders, (3) Smith never complained about Carrington's work performance, and (4) Smith never heard Price, nor anyone else, complain of Carrington's work. Id. Ex. 2-E 34:22-35:2, 39:10-16, 87:8-88:3, 36:15-25, 64:24-66:15 (hereinafter "Smith Dep."). Finally, Carrington has supplied testimony from Perry Dillow, an LAD site manager, that (1) he had no complaint with Carrington's work, (2) he always heard great things about Carrington, and (3) he never complained to Price about the quality of work coming from the paint shop. Id. 2-G 80:10-13, 128:11-22, 123:7-25 (hereinafter "Dillow Dep.").
II. DISCUSSION
A. Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries the initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required 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); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986).
B. Racial Discrimination
Carrington alleges that he was the victim of discriminatory discharge on the basis of his race. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 1. In order to survive a motion for summary judgment on discriminatory discharge claims brought under Title VII, the plaintiff must establish a prima facie case of discrimination. Shackelford v. DeLoitte Touche, L.L.P., 190 F.3d 398, 404 (5th Cir. 1999) (referring to standard from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03 (1973)). Under the traditional McDonnell Douglas standard, the plaintiff establishes a prima facie case by proving that: (1) he is a member of a protected class, (2) he was qualified for his position, (3) he was subjected to an adverse employment action, and (4) he was replaced by someone outside the protected class. Id. This burden is not an onerous one. Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) ("Only a minimal showing is necessary to [establish a prima facie case of discrimination]."). Once established, the prima facie case raises a presumption of discrimination, which the defendant may rebut by articulating a legitimate, non-discriminatory reason for the adverse employment action. Shackelford, 190 F.3d at 404. If the defendant is able to articulate such a reason, the plaintiff must then prove that the defendant's legitimate, non-discriminatory reason for the adverse employment action is a mere pretext. Id.
1. Prima Facie Case
Vertex raises no issue with Carrington's ability to satisfy the first and second prongs of the McDonnell Douglas framework. See generally Def.'s Mot. for Summ. Jmt. Carrington, an African American, is a member of a protected class under Title VII and this Court will assume that he was qualified for the position he held, since Vertex raises no issue with that element. Consequently, the remaining issues before this Court with respect to whether or not Carrington has established a prima facie case of discrimination under Title VII are: (1) whether Carrington was subject to an adverse employment action, and (2) whether he was replaced by someone outside the protected class.
a. Constructive Discharge
Although Carrington resigned from his employment, he alleges that his resignation is more appropriately characterized as a constructive discharge, thus satisfying the third prong of the McDonnell Douglas framework. See Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 5-10. Carrington alleges that, over a short period of time, he was asked to give up his supervisory position, held to an unrealistic work standard, criticized and harassed daily over trivial matters, scrutinized to a higher degree than other employees, given a written reprimand for violation of a policy he had no notice of, and demoted. Id. at 10. For the reasons discussed below, Carrington has provided sufficient evidence to raise a genuine issue of fact as to whether or not he was constructively discharged.
To prove a case of constructive discharge, an employee must show that he quit his job under circumstances so intolerable, that a reasonable employee would feel compelled to resign. Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004) (citing Jurgens v. Equal Employment Opportunity Comm'n, 903 F.2d 386, 390 (5th Cir. 1990)); see Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994) (discussing same standard). Whether a reasonable employee would feel compelled to resign varies with the facts of each case and is often a question of fact. Barrow, 10 F.3d at 297; see Cortes v. Maxus Exploration Co., 977 F.2d 195, 200-01 (5th Cir. 1992) (noting issue is a question of fact); Davis v. Univ. of Chi. Hosp., 1996 U.S. Dist. LEXIS 1531, *5-6 (N.D. Ill. 1996) (citing Darnell v. Target Stores, 16 F.3d 174 (7th Cir. 1994)). Nevertheless, such determination may be appropriate for consideration on summary judgment where the evidence is insufficient to show aggravated circumstances. See Barrow, 10 F.3d at 297 (finding insufficient evidence to create a genuine issue of material fact as to constructive discharge). In making this determination, the Fifth Circuit considers seven non-exclusive factors, including: (1) demotion, (2) reduction in salary, (3) reduction in job responsibilities, (4) reassignment to menial or degrading work, (5) reassignment to work under a younger, less qualified, or less experienced supervisor, (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation, and (7) offers of early retirement or continued employment on terms less favorable than the employee's current status. Id.; Haley, 391 F.3d at 649-50.
This test is an objective one. Haley, 391 F.3d at 650; see Hunt v. Rapides Healthcare Sys., L.L.C., 277 F.3d 757, 772 (5th Cir. 2001) ("[C]onstructive discharge cannot be based upon the employee's subjective preference for one position over another."); Guthrie v. J.C. Penney Co., 803 F.2d 202, 207 (5th Cir. 1986) (noting test is objective and does not turn on plaintiff's actual reaction). The employee need not prove that the employer imposed these intolerable conditions with the specific intent of forcing resignation, but must nonetheless make a greater showing of harassment than that required for a hostile work environment claim. Id.; see Boze v. Branstetter, 912 F.2d 801, 806 (5th Cir. 1990) ("Proof is not required that the employer imposed intolerable working conditions with the specific intent to force the employee to resign."); see also Woods v. Delta Bev. Group, Inc., 274 F.3d 295, 301 (5th Cir. 2001) (holding a constructive discharge claimant must prove "a `greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment claim'"). Ultimately, the burden of proving constructive discharge lies with the plaintiff. Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005).
In the instant case, Carrington presented evidence of two demotions — one from day shift team leader to second shift team leader and one from second shift team leader to painter. Def.'s Mot. for Summ. J. ¶¶ 12-15. While a reasonable person may not necessarily have felt compelled to resign after being demoted once from day shift team leader to second shift team leader, this Court finds that a reasonable person may have felt compelled to resign after being demoted a second time in less than four months, from a team leader position to a painter position. Thus, this factor weighs in favor of Carrington. See Jurgens, 903 F.2d at 391 (holding that demotion or transfer may constitute evidence of constructive discharge, depending upon whether or not a reasonable person would have felt compelled to resign); see also Brown v. Bunge, 207 F.3d 776, 782 (5th Cir. 2000) ("[T]he constructive discharge factors are considered `singly or in combination.'").
As to the second and third factors associated with constructive discharge claims, Carrington testified that he lost money and job responsibility as a result of his demotions. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 6. Defendant does not dispute this fact. While it is clear that Carrington's demotions were designed to reduce his job responsibilities so that he could "focus solely on painting, and not be distracted by inspection duties and day-to-day administrative matters," Carrington failed to specify the amount of monetary loss suffered. Id. at 5-10; Def.'s Mot. for Summ. J. ¶ 12. In cases where decreased compensation supports a constructive discharge claim, courts generally look to the severity of the pay cut and the neutrality of its application. See, e.g., Brown, 207 F.3d at 782 (finding lack of evidence of reduction in salary supported conclusion that constructive discharge claim was not met); Guthrie v. Tifco Indus., et al., 941 F.2d 374, 377 (5th Cir. 1991) (finding 40% reduction in salary probative of constructive discharge); Keelan, 407 F.3d at 343 (finding that blanket application of pay cut to similarly situated employees did not support plaintiff's prima facie case); Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1027 (5th Cir. 1992) (finding salary reduction from $53,500 to $43,200 probative of constructive discharge). In this case, the Court has no evidence as to the severity of the alleged pay cut. However, viewing the evidence in a light most favorable to the plaintiff, this Court will assume that this element, as well as the second element, favors Carrington.
With respect to the fifth factor, Carrington presented evidence that he was replaced by Arnoldussen — a white employee, but failed to specifically allege that Arnoldussen was either younger, less qualified, or less experienced than himself. Thus, Carrington has failed to present evidence that this factor favors him.
Carrington concedes that he has presented no evidence as to the fourth and seventh factors considered in determining whether a reasonable employee would feel compelled to resign as the result of discrimination, for purposes of a constructive discharge claim. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 6.
Carrington asserts that he satisfied the fifth factor in a constructive discharge case because he was reassigned to work under a "different supervisor," — namely Arnoldussen. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 6. This Court can find no cases where this factor is described as reassignment under a "different supervisor." In fact, such a test would make little sense in light of the fact that a demotion necessarily implies reassignment under a different supervisor. Thus, this Court will consider the evidence under the test as articulated by the Fifth Circuit in Barrow and similar Fifth Circuit law.
Finally, with respect to the sixth factor, Carrington points to the fact that Price and Bellevieux would "inspect unannounced," "inspect daily, checking the most minute items," "go out of their way to find things to criticize [me] about," and "dress me down, chew me out, [and] jack me around." Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 7. Vertex argues that this evidence is insufficient to aid in establishing a prima facie case of constructive discharge because the Fifth Circuit has held that "[a]n employee is not constructively discharged because she does not like her assignments, receives unfair criticism, or is yelled at by supervisors." Katz v. Beth Isr. Med. Ctr., 2001 U.S. Dist. LEXIS 29, *14 (S.D.N.Y 2001); see also Williams v. Giant Food, Inc., 370 F.3d 423, 434 (4th Cir. 2004); Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002) ("[C]riticism in performance reviews and institution of performance improvement plans, alone, do not constitute objectively intolerable conditions."); Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997) (citing Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)); Sgarlata v. Viacom, Inc., 2005 U.S. Dist. LEXIS 4435, *16 (S.D.N.Y. 2005) (citing Katz, 2001 U.S. Dist. LEXIS at *14). Moreover, the Fifth Circuit has stated that "having one's work micromanaged may be unpleasant but does not constitute a `greater degree of harassment than that required by a hostile environment claim.'" Haley, 391 F.3d at 652. Nonetheless, Price's criticisms must be examined in light of the fact that at least three other LAD supervisors never complained about Carrington's work and testified that he performed his job. Smith Dep. 34:22-35:2, 39:10-16, 87:8-88:3; Carmack Dep. 63:10-64:1, 58:4-6; Dillow Dep. 80:10-13, 123:7-25. The fact that Price chose to criticize Carrington while three other supervisors familiar with Carrington's work did not, provides at least an issue as to whether Carrington was subject to badgering and harassment.
Furthermore, Vertex argues that Carrington's argument that he was subject to unrealistic standards is belied by the fact that his white replacement — Arnoldussen — was also subsequently disciplined and demoted for failure to meet the Army's standards. Def.'s Mot. for Summ. J. ¶ 25. The Fifth Circuit has acknowledged that the fact that a similarly situated employee does not resign tends to be at least some evidence against a finding of constructive discharge. See Jurgens, 903 F.2d at 391 (finding it an important fact that a similarly situated employee did not resign in a constructive discharge case). However, the fact that Arnoldussen did not resign must be viewed in light of Price's own statement to Carrington that he held Carrington to a different standard than Arnoldussen. Thus, viewing the evidence in a light most favorable to Carrington, this element favors Carrington.
Vertex objects to the introduction of Carrington's testimony about what Don Price told him, because it claims that these statements are inadmissible hearsay. Under Federal Rule of Evidence 801, "A statement is not hearsay if — The statement is offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . ." FED.R.EVID. 801(d)(2) (2005); see Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1312 (5th Cir. 1991) ("If parties to the lawsuit or agents of the parties made the statements, however, the statements are not within the definition of hearsay and are admissible against the parties."). With respect to the statement at issue, it was: (1) made by Price — a Vertex supervisor, (2) within the scope of his job as supervisor, and (3) made during the existence of his employment at Vertex. See Def.'s Mot. for Summ. J. ¶¶ 9, 12-14 (discussing Price's employ at Vertex). As such, this Court will consider the statement an admission.
These seven factors, when viewed in combination, lead this Court to conclude that a reasonable person demoted twice, suffering loss of pay and job responsibilities, and subject to criticism from Vertex supervisors while subject to little or no criticism from LAD supervisors, might feel compelled to resign. As such, Carrington has alleged facts sufficient to create a genuine issue of fact as whether he was subjected to an adverse employment action.
b. Replacement by One Outside the Protected Class
Carrington argues that he has satisfied the fourth prong of the McDonnell Douglas standard because "it is undisputed that he was replaced by Stuart Arnoldussen, a white man." Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 11. Vertex, on the other hand, argues that Carrington is unable to meet this fourth prong because he cannot show that Vertex sought to replace him with someone outside of his protected class or that others similarly situated were treated more favorably. Def.'s Mot. for Summ. J. ¶ 24. Vertex claims that Carrington and Arnoldussen were held to the same standards, as evidenced by Arnoldussen's own subsequent disciplinary actions, and thus Arnoldussen was not treated more favorably. Id. ¶ 25.
The Supreme Court has held that the burden of establishing a prima facie case of discrimination is not an onerous one. Burdine, 450 U.S. at 253; see Bauer, 169 F.3d at 967 (5th Cir. 1999). In this case, it is undisputed that Arnoldussen, a white man, replaced Carrington. Def.'s Mot. for Summ. J. ¶ 25; Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 11. Pursuant to Shackelford, Carrington was literally "replaced by someone outside the protected class." Shackelford, 190 F.3d at 404. As such, this Court finds that Carrington has satisfied the fourth prong of a prima facie case of discrimination.
2. Legitimate, Non-Discriminatory Reason for the Adverse Employment Action
Vertex argues that, even if Carrington has established a prima facie case of discrimination, Vertex has successfully rebutted any presumption of discrimination by providing the following legitimate, non-discriminatory reasons for the adverse employment action: (1) rejection of missile launchers for painting discrepancies, (2) increase in painting errors following Carrington's assumption of the second-shift team leader position, and (3) demoting Carrington only after subjecting him to progressive discipline. Def.'s Mot. for Summ. J. ¶¶ 26-34.
Under the McDonnell Douglas approach, Vertex does not need to persuade the Court that it was actually motivated by its proffered reasons. Burdine, 450 U.S. at 254. The Supreme Court has stated that it is sufficient if a defendant's evidence raises a genuine issue of fact as to the issue of discrimination. Id. 254-55. In delineating a quantum of evidence sufficient to raise such a genuine issue of fact as to discrimination, the Fifth Circuit has held that:
Even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an employee's competence. Motive is the issue . . . [A] dispute in the evidence concerning . . . job performance does not provide a sufficient basis for a reasonable factfinder to infer that [the] proffered justification is unworthy of credence.Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).
Pursuant to Mayberry, Vertex has succeeded in articulating a legitimate, non-discriminatory reason for Carrington's adverse employment action. Vertex's action can be seen as a self-protective action based upon a reasonable belief that Carrington's performance was inadequate. See Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (noting that legitimate, non-discriminatory reason for adverse employment action need not be true, as long as the belief in it is reasonable). As such, the burden falls upon Carrington to establish that Vertex's articulated reason is a mere pretext for racial discrimination.
3. Pretext
Carrington argues that Vertex's legitimate, non-discriminatory reasons for the demotions are a mere pretext for discrimination. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J.13-20. Although Carrington's demotions came on the heels of both oral and written counseling sessions regarding his ability to meet the new standards, Carrington asserts that the counseling sessions themselves resulted from the discriminatory imposition of heightened quality standards. Id. at 15. To support his argument, Carrington points to the fact that three LAD supervisors — Carmack, Smith, and Dillow — neither witnessed, heard, or voiced complaints about Carrington's work product or ability to perform his duties. Carmack Dep. 33:1-9, 39:17-19; Smith Dep. 36:15-25, 64:24-66:15; Dillow Dep. 80:10-13, 128:11-22, 123:7-25.
Plaintiff categorizes two of Vertex's legitimate, non-discriminatory reasons for the adverse employment action as: (1) part of an overall downsizing, and (2) a complaint by Carrington to Price that Carrington was having difficulty with the responsibilities of being both an inspector and a paint team leader. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 14. Plaintiff further argues that both of these reasons are readily rejected because there was no "downsizing" and Carrington denies that he ever complained that his responsibilities "were too much." Id. After reviewing Vertex's Motion for Summary Judgment, specifically the section entitled "Carrington Cannot Rebut Vertex's Legitimate, Non-Discriminatory Reasons," this Court acknowledges that Vertex claimed it was undergoing an overall downsizing, but also that it stated that Carrington's proposed downgrade "was specifically precipitated by Carrington's ongoing performance problems. . . ." Def.'s Mot. for Summ. J. ¶ 12. The only reasons Vertex used to rebut Carrington's prima facie case are those mentioned by this Court in part II.C.2 of this opinion, supra. Therefore, this Court declines to address the two proposed legitimate, non-discriminatory reasons listed above.
Moreover, Carrington testified that Price admitted to holding Carrington to a higher standard than Arnoldussen. Plf.'s Dep. 151:7-152:20. Specifically, Carrington's testimony concerning his conversation with Price about being held to a different standard than Arnoldussen was that "It has changed now since I was the painter leader. He doesn't care how dark it was in the paint booth. He's holding me to a different standard than what he was holding Mr. Stuart to." Id. 151:19-23. The reason given was that "things, policies and that change. You know, we want — we're going to have higher standards." Id. Even if Price was referring to the Army's new standards — a question of fact inappropriate for this Court to decide — it still does not logically follow that Price, who joined Vertex as a supervisor around the same time that the Army adopted its new standards, would hold Arnoldussen to a different standard than Carrington at any point. Def.'s Mot. for Summ. J. ¶¶ 7-9. If anything, it appears to this Court that Carrington and Arnoldussen both should have been held to the same new standards.
In attempting to show that a defendant's asserted reason for the adverse employment action is merely a pretext, the Supreme Court has stated that casting doubt upon the veracity of the defendant's reason can itself be persuasive evidence of intentional discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000). In this case, even if the Army increased or changed its standards as Vertex alleges, this Court finds that Carrington has asserted enough facts to create a genuine issue as to whether or not his demotions resulted from an inability to meet these new standards or from discrimination. The testimony from three LAD supervisors and Price's admission about holding Arnoldussen to a different standard is sufficient to cast doubt upon Vertex's legitimate, non-discriminatory reasons for the demotions, regardless of the fact that Arnoldussen was subsequently reprimanded for poor work quality and demoted. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. Ex. 2-D 99:14-103:19 (hereinafter "Arnoldussen Dep.").
In addition to the arguments above, Vertex argues that Carrington has provided no evidence of racial discrimination because, by Carrington's own admission, neither Price, Bellevieux, nor any other person used racially derogatory language with him. Plf.'s Dep. 168:25-169:12. Vertex cites well-established law holding that "an employee's subjective belief that he suffered an adverse employment action as a result of discrimination, without more, is not enough to survive a summary judgment motion, in the face of proof showing an adequate nondiscriminatory reason." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996); see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) ("Byers urges this Court to rely on his subjective belief that Brown discriminated against him because he was white. This Court will not do so."). As discussed above, Carrington has provided more than merely a subjective belief in racial discrimination. Thus, summary judgment is inappropriate with respect to Carrington's claim of racial discrimination.
D. Hostile Work Environment
Carrington contends that Vertex subjected him to a hostile work environment because of the harassment he allegedly endured from Price and others, as described above.
In order to establish a prima facie case of a hostile work environment based on racial discrimination, a plaintiff must prove the following elements: (1) the employee belongs to a protected group, (2) the employee was subjected to unwelcome harassment, (3) the harassment complained of was based on race, and (4) the harassment complained of affected a term, condition, or privilege of employment. Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 353 (5th Cir. 2001). In determining whether a workplace constitutes a hostile work environment, a court will consider several factors, including: (1) the frequency of the discriminatory conduct, (2) its severity, (3) whether the discriminatory conduct is physically threatening or humiliating, or merely an offensive utterance, and (4) whether the discriminatory conduct unreasonably interferes with an employee's work performance. Ramsey v. Henderson Postmaster Gen., 286 F.3d 264, 268 (5th Cir. 2002). The plaintiff must subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable. Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Moreover, the Fifth Circuit has held that "[a]ctionable harassment must involve `racially discriminatory intimidation, ridicule and insults." Felton v. Polles, 315 F.3d 470, 485 (5th Cir. 2002) (holding no racial harassment as a matter of law in absence of allegations of intimidation, ridicule, or insults); see also Harris, 510 U.S. at 21 ("When the workplace is permeated with `discriminatory intimidation, ridicule, and insult," [citations omitted] that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' [citations omitted] Title VII is violated.").
In the instant case, as set forth above, Carrington can show that he is a member of a protected group and that he was subjected to unwelcome harassment by his supervisors — specifically Price and Bellevieux. Moreover, even though Carrington admits that no one used racially discriminatory language with him, he can point to at least some evidence of disparate treatment between himself and Arnoldussen. See Plf.'s Dep. 151:7-152:20 (describing Price's statements about holding Arnoldussen to a different standard). Finally, Carrington has provided evidence that the harassment he endured was severe and pervasive enough to affect the terms and conditions of his employment. Plf. Resp. in Opp. to Def.'s Mot. for Summ. J. 21-22. As detailed more fully above, the harassment he endured was arguably so severe and pervasive that it caused Carrington to resign.
In light of all these circumstances, this Court finds that Carrington has created a genuine issue of fact as to his hostile work environment claim. Thus, summary judgment as to this claim should be denied.
E. Retaliation
Carrington alleges that he was constructively discharged in retaliation for opposing discrimination. Plf. Theoga Carrington's Resp. to Def.'s Mot. for Summ. J. 12. Specifically, Carrington alleges that he called Vertex's harassment hotline to report discrimination and subsequently had a meeting with his supervisors about the harassment. Id. at 12-13. Although he does not explicitly state so, presumably Carrington alleges that Vertex's adverse employment action was a result of reporting this harassment. See id.
Title VII prohibits employers from retaliating against an employee who opposes what he reasonably believes to be an unlawful employment practice. See 42 U.S.C. § 2000e-3. To state a claim for retaliatory discrimination under Title VII, a plaintiff must establish that: (1) he engaged in a protected activity, (2) he was subjected to an adverse employment action, and (3) a causal connection existed between his participation in the protected activity and the adverse employment action. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003). A plaintiff may satisfy the causal connection through either direct or circumstantial evidence. Id. Since direct evidence of discrimination is rarely available, plaintiffs must generally rely upon circumstantial evidence to prove their cases. See id. ("Usually, in the context of a retaliation claim, the employer refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, and so direct evidence of an employer's allegedly retaliatory intent is rarely available."). When a plaintiff relies upon circumstantial evidence in order to prove his case, the Court applies the familiar McDonnell Douglas approach, discussed supra Section II.B.
In the instant case, Carrington has alleged sufficient evidence to proceed in his cause of action for retaliation. First, Carrington can successfully demonstrate that he engaged in a protected activity, namely calling the harassment hotline. Second, as detailed above, Carrington has provided enough evidence to create an issue of fact as to whether or not he was constructively discharged. Finally, Carrington has presented enough evidence to establish an issue of fact as to whether a causal connection exists between his call to the harassment hotline and his demotion, especially in light of the close proximity between the phone call and the second demotion. As a result, this Court finds the evidence sufficient to create a genuine issue of material fact as to whether or not Carrington was constructively discharged in retaliation for engaging in a protected activity.
III. CONCLUSION
Vertex's Motion for Summary Judgment (Doc. No. 52) is DENIED.
SO ORDERED.