Opinion
Civil Action No: 00-3423 Section: "R" (2)
February 20, 2002
ORDER AND REASONS
Before the Court is a motion for summary judgment by defendant Dynamic Security, Inc. asking the Court to dismiss the claims of Debbie Forrest and Holly Smith for gender discrimination and intentional infliction of emotional distress. For the following reasons, the Court grants in part and denies in part defendant's motion.
I. Background
Plaintiffs Debbie Forrest and Holly Smith, both females, worked as security officers for defendant Dynamic Security, Inc., an Alabama company that provided security services for a variety of clients. Dynamic had a contract with Sanderson Farms, Inc. to provide security, and plaintiffs were assigned to work at the Sanderson Farms plant in Hammond, Louisiana. Forrest was employed from September 1, 1996 until November 19, 1999. In addition to being a security officer, Forrest was also certified as a weigh master, which meant that she had responsibility for weighing incoming and outgoing trucks at the plant. Smith worked from June 29, 1998 until November 19, 1999.
Dynamic Security uses paramilitary rankings to classify its employees. At the Hammond Plant, Forrest, Smith, James Gibson, Carl Booker and Deborah Blount were "officers." Their supervisor was "Lieutenant" Alisha Kelley, a female. Kelley's immediate supervisor was "Major" Winston Broome, a male.
This controversy arose when James Gibson, a white male, was allegedly promoted to sergeant in November 1999. Gibson worked part-time from January 1999 until August 1999, when he was assigned a full-time position. (Mot. Opp. Summ. J., Ex. C, Aff. Gibson, ¶ 2.) Dynamic only staffs the "sergeant" position when there are 12 or more employees on a site. At Sanderson, Dynamic only had nine employees. When Forrest asked Kelley to be promoted to sergeant, Kelley told her of Dynamic's policy. It is undisputed that Carl Booker had been a "sergeant," but when he was transferred to the Sanderson plant, he was demoted to "officer," because there were too few Dynamic employees to staff a sergeant's position. Dynamic does not have a policy of promotion based on seniority. (Mot. Summ. J., Ex. A, Aff. Dickinson, 2.)
In her affidavit, Kelley asserts that she temporarily appointed James Gibson as "sergeant" when she was on vacation and needed a substitute. (Mot. Summ. J., Ex. B., Aff. Kelley, 3.) ("When I was going on vacation, I needed someone whom I knew I could count on to take over extra guard duty in my absence should the need arise."). Kelley asserts that although she told the other security officers at the time that the decision to "promote" Gibson was made by Broome, she, in fact, recommended Gibson for the post because he was the person most willing to work any shift. ( Id.) Kelley asserts that the reason she did not ask Forrest to substitute for her was because Forrest was less willing to work extra shifts and on Saturdays, and she asserts that Forrest had job-related problems. ( Id., at 3.) Kelley stated that she did not ask Smith to act as "sergeant," even though she knew Smith was interested in the post, because Smith was unavailable on weekends. ( Id., at 4.)
Dynamic asserts that Gibson's change in job title was temporary and symbolic and that Gibson did not receive an increase in pay. In addition, Dynamic states that Gibson received no extra job duties. Gibson, in contrast, testifies that he was told that the promotion was permanent and that he would receive a raise. (Mat. Opp. Summ. J., Ex. C, Aff. Gibson, ¶ 3.) He also testifies that he was approached by Broome, not Kelley, who asked if he was interested in being promoted to Sergeant. ( Id.) Gibson kept the position for five months. ( Id.) He states that he voluntarily left Dynamic when it failed to give him the promised raise. It is undisputed that Gibson was given "sergeant" stripes to wear on his collar and that the other security officers called him "sergeant."
Plaintiffs, as well as Booker and Blount, were upset when Gibson was promoted to sergeant because they believed that he was not qualified f or the position. Plaintiffs believed that the job decision had been made by Broome. Smith alleges that Broome preferred Gibson because they shared a "manly bond" and because she had seen them exchange money. (Mot. Summ. J., Ex. E., Dep. Smith, 159.) Forrest states that Broome told offensive jokes involving women. (Mot. Opp. Summ. J., Ex. A, Aff. Forrest, ¶ 3.) Kelley states that she recommended that plaintiffs be fired because they were uncooperative and insubordinate. (Mot. Summ. J., Ex. B, Aff. Kelley, 5-6.) She believes that plaintiffs were trying to get fired so that they could collect unemployment. ( Id.)
Kelley admits, however, that before plaintiffs were terminated, they informed her that they, as well as officers Booker and Blount, were to meet with an attorney for advice. ( Id., 6.) Plaintiffs consulted with a lawyer on November 18, 1999 and November 15, 1999, respectively. (Mot. Opp. Summ. J., Ex. A., Aff. Forrest, ¶ 9; Ex. B., Aff. Smith, ¶ 9.) Forrest and Smith invited Kelley to join them. (Mot. Summ. J., Ex. B, Aff. Kelley, 6.) Kelley informed Broome that Forrest, Smith, Booker and Blount had contacted an attorney. Broome fired plaintiffs on November 19, 1999. ( Id.)
When plaintiffs filed for unemployment, Broome stated on the form that his reason for terminating Forrest and Smith was "Conspiracy and Animosity." (Mot. Opp. Summ. J., F1 and F2.) He admits that Dynamic Security was unhappy with his stated reasons for terminating plaintiffs. In July 2000, Dynamic offered both Forrest and Smith their old positions back. (Mot. Opp. Summ. J., Ex. G-1 and G-2.) Neither Forrest nor Smith responded to Dynamic's offer.
Smith and Forrest filed charges of discrimination with the Equal Employment Opportunity Commission. (Compl. ¶ 9.) After the EEOC gave them notice of their right to sue, plaintiffs filed suit in federal district court against Dynamic Security, Inc., alleging illegal gender discrimination under Title VII of the Civil Rights Act of 1964, and a state law claim for intentional infliction of emotional distress. Defendants now move for summary judgment.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 2001 WL 1650961 (5th Cir. 2001) (citations omitted).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exits. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
In an employment discrimination case, the Court must "focus on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 447-48 (5th Cir. 1996). The Court "must draw all reasonable inferences in favor of the nonmoving party, and [the Court] may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 120 S.Ct. 2097, 2110 (2000).
The Fifth Circuit has "arguably articulated an even more lenient standard for summary judgment in certain nonjury cases." Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 273 n. 15 (5th Cir. 1987). In Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 (5th Cir. 1978), the Fifth Circuit explained:
There is no litmus test that infallibly distinguishes those issues that are `factual' from those that are `legal' or `mixed.' . . . as we approach the point where facts and the application of legal rule to them blend, appraising evidentiary facts in terms of their legal consequences and `applying' law to fact become inseparable processes.
Therefore, in a non-jury case, such as this case, the Court is encouraged to draw inferences, even when they appear to be factual, if a "trial on the merits would reveal no additional data." Id. at 1124. See also Professional Geophysics, Inc. v. Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991).
B. Title VII
Title VII of the 1964 Civil Rights Act provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a). That an employee's supervisor is one of the same gender or race does not preclude a Title VII action. See Newport News Shipbuilding Dry Dock Co. v. EEOC, 462 U.S. 669, 676, 103 S.Ct. 2622, 2627 (1983)
A Title VII plaintiff bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). A plaintiff may prove a prima facie case of discrimination by showing (1) that she is a member of a protected class, (2) that she was qualified for the position, (3) that she was fired or suffered an adverse employment action, and (4) that the employer continued to seek applicants with the plaintiff's qualification or that others similarly situated were more favorably treated. LaPierre, 86 F.3d 444, 448 (5th Cir. 1996); Urbane v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). The elements of a plaintiff's prima facie case necessarily vary with the facts of the case and the nature of the claim. LaPierre, 86 F.3d at 448 n. 3.
Once established, the plaintiff's prima facie case raises an inference of intentional discrimination. Grimes, 102 F.3d at 140; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The burden then shifts to the defendant to rebut that presumption by articulating a legitimate, nondiscriminatory reason for the challenged employment action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094 (1981). The plaintiff then has the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. 1089. To determine whether plaintiff can survive a motion for summary judgment, the Court will consider "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves v. Sanderson, 530 U.S. 133, 148, 120 S.Ct. 2097, 2109 (2001).
III. Analysis
A. Pailure to Promote
Forrest and Smith allege that Dynamic failed to promote them to sergeant because of their gender. In a failure to promote or transfer claim under Title VII, a plaintiff must show that: (1) she was within a protected class; (2) she applied and was qualified for the position sought; (3) she was not promoted or transferred; aid (4) the position she sought was filled by someone outside the protected class. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1094 (1981); Grimes, 102 F.3d at 140 (5th Cir. 1996). The Fifth Circuit has repeatedly held that to establish a prima facie case, a "plaintiff need only make a very minimal showing." Nichols v. Loral Vought, 81 F.3d 38, 41 (5th Cir. 1996), citing Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 533, 639 (5th Cir. 1985)
Dynamic claims that plaintiffs cannot make a prima facie showing on prong three of the McDonnell Douglas test because Gibson was not "promoted" to sergeant. Dynamic contends that Gibson was only temporarily assigned to the position while Kelley was on vacation. Dynamic asserts that the "promotion" was merely symbolic, that Gibson did not receive a salary increase and that his job duties did not change. Dynamic points to the Fifth Circuit's jurisprudence regarding "ultimate employment decisions" in other contexts to show that a bona fide "promotion" did not occur in this case.
The Fifth Circuit has held that only "ultimate employment decisions," such as hiring, granting leave, discharging, promoting and compensating, satisfy the "adverse employment action" element of a prima facie case of retaliation. Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999). The Fifth Circuit has been loath to find that such an action exists when the employment action does not affect job duties, compensation, or benefits. Id. See also Mota v. The University of Texas Houston Science Center, 261 F.3d 512, 520 (5th Cir. 2001) ("A tangible employment action in most cases inflicts direct economic harm and must involve an official act by the company.").
Gibson, Broome and Kelley testify that Gibson never received an increase in pay. The Court nonetheless finds that a genuine issue of material fact remains as to whether Gibson was promoted. It is undisputed that "sergeant" is a higher-level position than "officer," that it generally pays more and carries more responsibility. Indeed, Booker testified that when he was demoted from "sergeant" to "officer," he suffered a "pay cut." (Mot. Opp. Summ. J., Ex. D, Aff. Booker, ¶ 4.) Further, it is undisputed that Gibson did in fact receive the job title "sergeant," and received "sergeant" stripes. Gibson retained both the stripes and the title even after Kelley returned from vacation. In addition, Gibson testified that Broome informed him that his promotion would eventually involve a pay increase. Officer Booker testified that Gibson believed that he would receive a pay increase and that they had conversations about Dynamic's failure to give Gibson a pay raise for his promotion. (Mot. Opp. Summ. J., Ex. D, Aff. Booker, ¶ 14.) Forrest testified that Gibson told her that he would receive a pay raise. (Mot. Summ. J., Ex. C, Dep. Forrest, 96.) The Court finds that a question of material fact exists as to whether Gibson was in fact "promoted" to the post of sergeant, sufficient to defeat summary judgment on prong three.
As to prong two of the test for a prima facie case, the Court notes that plaintiffs did not apply for the sergeant's position as required. Dynamic, however, did not post openings for the sergeant's position. (Mot. Summ. J., Ex. E, Dep. Smith, 117.) Courts have found that informal, secretive and subjective processes for hiring or promotion decisions tend to facilitate the consideration of impermissible criteria, such as race or gender. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126, (11th Cir. 1984) ("We have recognized that such subjective procedures can lead to racial discrimination, both because important information may be available only to whites and because such procedures place no check on individual biases."); Payne v. Travenol Labs., Inc., 673 F.2d 798, 826-27 (5th Cir. 1982); Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th Cir. 1972). Accordingly, in the case of unposted positions, plaintiffs need not show that they applied for and were rejected for a particular position to establish a prima facie case. See Bernard v. Gulf Oil Corp., 841 F.2d 547, 570 (5th Cir. 1988) ("It is not legally sufficient for an employer to reject an employee who does not have notice or an opportunity to apply for a promotion."). The employee nevertheless must establish that the company had some reason or duty to consider him or her for the post. See Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir. 1986), citing Carmichael, 738 F.2d at 1133. In Jones, the Fifth Circuit upheld a grant of summary judgment on a failure to promote claim when the plaintiff produced no evidence that her employer had a duty or legitimate reason to consider her for another position within the company. Id.
Here, Smith produces evidence that Dynamic had a duty to consider her for the post. Smith testified that in October 1999, a month before Gibson was named "sergeant," she told Kelley that she was interested in being promoted to sergeant but was told that Dynamic only hired sergeants when there were more than 12 employees. (Mot. Opp. Summ. J., Ex. B, Aff. Smith, ¶ 4, 5; Mot. Summ. J., Ex. B, Aff. Kelley, 3-4.) It is uncontested that at no point in time did Dynamic employ more than 9 security personnel at the Sanderson Farms plant. Kelley's knowledge that Smith was interested in the position is sufficient to satisfy prong two of the McDonnell Douglas test.
In contrast, Forrest testified that she did not inform Dynamic that she was interested in the sergeant's position because Smith informed her of Dynamic's response to her request. (Mot. Summ. J., Ex. C, Dep. Forrest, 94.) Forrest contends that since Dynamic did not have the requisite number of employees to contemplate hiring a sergeant, she did not inform her supervisors that she wanted to be a sergeant. She testifies that she did not ask for a promotion until after Gibson had been promoted to sergeant. (Mot. Summ. J., Ex. C, dep. Forrest, 94, 195-96.) In Dews v. A.B. Dick Co., the Sixth Circuit found that in the case of unposted positions, a company is "held to a duty to consider all those who might reasonably be interested in a promotion were its availability made generally known." 231 F.3d 1016, 1022 (6th Cir. 2000). Here, Dynamic did consider Forrest for the promotion. In Kelley's affidavit, she states that she did consider Forrest for the sergeant's position, but found her to be unsuitable because "I observed that she had too many employment problems and would not work the less desirable shifts." (Mot. Summ. J., Ex. B, Aff. Kelley, at 3.) As in Smith's case, Kelley's knowledge that Forrest was interested in the position is sufficient to satisfy prong two of the McDonnell Douglas test.
A prima facie case raises an inference of unlawful discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000). The burden shifts to defendant to proffer a legitimate, non-discriminatory reason for the challenged employment action. Id. The defendant may meet this burden by presenting evidence sufficient for the trier of fact to conclude that unlawful discrimination was not the cause of the employment action. Id.
Dynamic has articulated a legitimate, non-discriminatory reason for the failure to promote, i.e., that Gibson was more willing to work extra weekday and Saturday shifts. Kelley testified that she selected Gibson because he "had shown a regular willingness to come in any time I needed a guard to cover a shift." (Mot. Summ. J., Ex. B, Aff. Kelley, 3.) Broome also testified that Kelley told him that Gibson "had accepted extra shift work when needed and would work on any day and . . . time of the week." ( Id., Ex. D., Aff. Broome, 3.) If believed by the trier of fact, this reason would support a finding that unlawful discrimination was not the cause of the failure to promote. Therefore, the presumption raised by plaintiffs' prima facie case disappears. Reeves, 530 U.S. at 143, 120 S.Ct. at 2106.
Next, plaintiffs are given the opportunity to demonstrate that the defendant's articulated rationale is merely a pretext for discrimination. Id. If plaintiffs can raise a genuine issue of material fact as to whether they have established pretext, that will suffice to avoid summary judgment. Id. ("[P]laintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence.") (internal quotations and citations omitted.)
Here, plaintiffs assert that they were clearly better qualified for the post than Gibson. The Fifth Circuit has held that "[t]o establish a fact question as to relative qualifications, a plaintiff must provide sufficiently specific reasons for his opinion; mere subjective speculation will not suffice." Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 41 (5th Cir. 1996). Plaintiffs point to the fact that they had more seniority and work experience than Gibson. Forrest also asserts that she was certified as a weigh master and that she had trained others. (Mot. Opp. Summ. J., Ex. A, Aff. Forrest, ¶ 6.)
The Court finds that this evidence is insufficient to defeat summary judgment. The Fifth Circuit has rejected the idea that seniority is a proxy for "better qualified." See Nichols, 81 F.3d at 41. ("This Court has repeatedly stated that an attempt to equate years served with qualifications . . . (is] unpersuasive.") (quotations and citations omitted). Indeed, it is undisputed that defendant never used seniority as a basis for promotions. Further, plaintiffs have not presented any evidence as to what the qualifications for sergeant were, and they have not shown that being certified as a weigh master was a requirement of the position. In fact, Smith admits that she was unaware of what Dynamic's qualifications were for the sergeant's position. (Mot. Summ. J., Ex. E, Dep. Smith, 126). Since plaintiffs fail to show what the qualifications for the job were, they have failed to support their assertion that they were more qualified than Gibson for the sergeant's post. The Court therefore grants defendant's motion for summary judgment on the failure to promote claim.
B. Retaliation and Termination
When a plaintiff presents direct evidence of discrimination, the McDonnell Douglas burden-shifting test is inapplicable. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 5. Ct. 613, 621 (1984); Garcia v. City of Houston, 201 F.3d 672, 676, n. 1 (5th Cir. 2000). The Fifth Circuit has found that in the context of Title VII, "direct evidence includes any statement or written document showing a discriminatory motive on its face." Portis v. First National Bank of New Albany, 34 F.3d 325, 329 (5th Cir. 1994) (finding that summary judgment was precluded when plaintiff testified to statements made by her employer which showed an intent to discriminate based on sex). Plaintiff's uncorroborated testimony is sufficient to establish intentional discrimination. See id., n. 10.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989), superceded by statute, the Supreme Court established the mixed-motive defense which is applicable in cases where there is direct evidence of discrimination and the employer asserts that the same adverse employment decision would have been made regardless of discrimination. There, the Court held that an employer would not be held liable if the employer could prove that even if it had not taken into account the impermissible factor of gender, the employer would have come to the same decision. Id. at 242, 109 S.Ct. at 1786. In order to prove a mixed-motive defense the employer should be able to present some objective proof that the same decision would have been made. Id. at 252, 109 S.Ct. 1775. The legitimate reason must be present at the time the decision was made. Id. It is not enough for the employer to demonstrate that the same decision would have been justified, but instead, the employer must show that its legitimate reason standing alone would have produced the same decision. Id. The employer must prove the mixed-motive defense by a preponderance of the evidence. Id. at 253, 109 S.Ct. 1775. The Fifth Circuit has found that Price Waterhouse involves a "shift of the burden of persuasion to the defendant." Mooney v. Aramco Services, Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If the defendant is unable to carry this burden, summary judgment is inappropriate.
Congress amended the holding in Price Waterhouse through passage of the Civil Rights Act of 1991. Currently, under Title VII, an unlawful employment practice is established when the complaining party establishes that race, color, national origin, or sex was a motivating factor for any employment action, even though other facts also motivated the practice. 42 U.S.C. § 2000e-2 (m); Garcia, 201 F.3d at 676. If the employer can show that it would have taken the same action in the absence of the impermissible motivating factor, plaintiff's relief is limited to injunction and declaratory relief, costs and attorney's fees. See Garcia, 201 F.3d at 676 (citations omitted).
In this case, Forrest and Smith present statements in affidavits and documents which can be viewed as direct evidence that plaintiffs were terminated in retaliation for consulting an attorney about filing a lawsuit against Dynamic for gender discrimination. Broome listed "Conspiracy and Animosity" as his reasons for terminating plaintiffs. (Mot. Opp. Summ. J., Ex. F1 and F2.) In addition, Booker and Blount state in affidavits that Broome told them that they also would be fired if they contacted a lawyer. (Mot. Opp. Summ. J., Ex. D, Aff. Booker, ¶ 12; Ex. H, Aff. Blount, ¶ 5.) Gibson states that Broome told him that plaintiffs were fired because they were "stirring up shit." (Mot. Opp. Summ. J., Ex. C., Aff. Gibson, ¶ 6.)
Given the presence of direct evidence of a retahatory motive, the burden shifts to defendant to show by a preponderance of the evidence that even if it had not considered plaintiffs' actions in consulting an attorney, it would still have terminated them. See Garcia, 201 F.3d at 676. The evidence must be "contemporary, objective evidence of its legitimate motive." Dynamic asserts that plaintiffs were terminated because they: (1) ignored rules; (2) disobeyed orders; (3) failed to cooperate with Kelley; (4) complained to clients; (5) failed to wear their uniforms; (6) were rude and hostile. (Mot. Summ. J., Ex. B., Aff. Kelley, 5-6.) In her affidavit, Kelley states that plaintiffs were deliberately "ignoring rules . . . [and] disobeying orders." ( Id.) Broome asserts that Forrest was fired because she called him an "asshole." ( Id., Ex. D, 4-5.)
The Court finds that this evidence is inadequate to support summary judgment because the evidence is in large part disputed by plaintiffs' evidence and unsupported by any contemporaneous evidence. Defendant presents no contemporaneous evidence of any disciplinary action taken against either plaintiff before they were terminated. See Evans, 246 F.3d at 355 (finding that a fact question existed when there was no contemporaneous evidence of disciplinary action, and there was evidence that forms were created after plaintiff filed suit). Cf. Garcia, 201 F.3d at 677 (relying on contemporaneous written records to sustain a jury's finding that employer proved its mixed-motive defense).
The Court notes that in defendant's statement of material fact, defendant asserts that Forrest admitted that she chose not to wear her uniform pants "from time to time" and that she was reprimanded by Kelley for misweighing a truck. Defendant, however, did not provide deposition excerpts to this effect. Accordingly, the Court does not consider these assertions to be supported by the record. Defendant also asserts that Smith admitted that she chose not to wear a complete uniform to work, but also fails to file a deposition excerpt into the record. The Court similarly treats that statement as an unsupported assertion.
Further, Smith states that she never received any reprimands, write-ups, suspensions or verbal warnings. (Mot. Summ. J., Ex. E, Dep. Smith, 230.) In her affidavit, she testifies that during her deposition, she was shown a disciplinary report dated August 2, 1999, written by Kelley. Smith asserts that she had never seen the form before and that the signature line was blank. ( Id., Ex. B., ¶ 11.) See id. Forrest testifies that Kelley never reprimanded her for excessive absenteeism. (Mot. Summ. J., Ex. C, Dep. Forrest, 162.) Forrest also testifies that she became aware of the existence of negative disciplinary documentation only in December 1999, when the unemployment office requested that she review three employee disciplinary reports. (Mot. Summ. J., Ex. C, Dep. Forrest, 299-300). Forrest notes that she had not signed these forms and that the signature space was left blank. (Mot. Opp. Summ. J., Ex. A, Aff. Forrest, ¶ 10.)
Plaintiffs also submit affidavits from other security officers who testify that they never saw either plaintiff act disrespectfully towards Kelley. (Mot. Opp. Summ. 3., Ex. D, Aff. Booker, ¶ 6-8,; Ex. H, Aff. Blount, ¶ 7; Ex. I, Aff. Weary, ¶ 3.) Further, Gibson and Booker testify that plaintiffs were properly attired for their jobs. (Mot. Opp. Summ. 3., Ex. C., Aff. Gibson, ¶ 5; Ex. D, Aff. Booker, ¶ 6-7.) Further, it is significant that only a short amount of time lapsed between plaintiffs' consulting an attorney and their termination. See Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001).
The Court finds that Broome's stated and written reasons for terminating plaintiffs, the short time frame between plaintiffs' engaging in protected activity and their termination, the lack of contemporaneous documentation of any disciplinary problems, plus the contradictory testimony in the depositions and affidavits, all give rise to a question of material fact as to the ultimate issue of whether defendant wrongfully terminated plaintiffs in retaliation for their consulting an attorney. Accordingly, the Court denies defendant's motion for summary judgment on plaintiffs' retaliation claims. See e.g., Texas v. Cress Asset Management, Inc., 85 F. Supp.2d 722, 733-34 (S.D. Tex. 2000) (finding that defendants failed to meet their burden of persuasion at summary judgment in a mixed-motive retaliation case when their evidence was disputed by plaintiff's affidavit).
C. Intentional Infliction of Emotional Distress
Plaintiffs also assert a claim of intentional infliction of emotional distress, under Louisiana Civil Code article 2315. In order to establish intentional infliction of emotional distress, plaintiffs must show(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991). The Louisiana Supreme Court has recently stated that to prevail, plaintiff must show that defendant's conduct is "outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community." Nicholas v. Allstate, 765 So.2d 1017, 1022 (La. 2000).
In their complaint, plaintiffs alleged that "[t]he acts and conduct of defendant, in publicly humiliating plaintiffs by berating them before their colleagues and then firing them constitutes an intentional infliction of mental distress. . . ." (Compl. 11.) Plaintiffs contend that Broome should not have fired them outside, in plain view of plant employees and other security personnel, and instead should have fired them in the guardhouse.
The Court finds that even resolving all questions of fact in favor of plaintiffs, the alleged conduct is not sufficiently "outrageous" to meet the high threshold set by Nicholas. See Nicholas, 765 So.2d at 1024-25 ("A canvas of national jurisprudence shows that courts require truly outrageous conduct before allowing a claim of intentional infliction of emotional distress even to be presented to a jury."). Indeed, Forrest testified that Broome did not raise his voice when he fired her. (Mot. Summ. J., Ex. C, 176.)
Further, plaintiffs allege no facts showing that they have suffered severe emotional distress as a result of the termination. While plaintiffs express confusion and hurt about being fired without what they considered to be "just cause" as well as a concern that they may have difficulties in applying for other security officer positions, plaintiffs do not allege that they suffered from any emotional distress as part of the termination. Both Forrest and Smith in their depositions describe themselves as sleeping well, they have not seen a physician, have not taken any medications, and are generally happy. (Mot. Summ. J., Ex. C., Dep. Forrest, 38-39; Ex. E, Dep. Smith, 66-68.) Neither plaintiff has had difficulty finding new employment. (Mot. Summ. J., Ex. B, Dep. Smith, 69-70, 244; Ex. C, Dep. Forrest, 45-46.))
In Forrest's deposition she states: "I was always on time. I was always willing to work the extra shift, and I was a good worker, and . . . it bothers me that they would do me like that because I was very, very dependable, and I was very loyal to that company." (Mot. Summ. J., Ex. C. Dep. Forrest, 172-73.)
Lastly, plaintiffs present no evidence showing that Broome intended to cause plaintiffs severe emotional distress when he fired them publicly. Accordingly, the Court grants defendant's motion for summary judgment on plaintiffs' claim of intentional infliction of emotional distress.
IV. Conclusion
For the foregoing reasons, the Court denies defendant's motion for summary judgment on plaintiffs' claims of retaliation. The Court grants defendant's motion for summary judgment on plaintiffs' claims of failure to promote and for intentional infliction of emotional distress La. Civ. Code art. 2315.