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granting summary judgment on the basis that Plaintiff's "refusal to participate in the department's administrative investigation prior to his termination" constituted a legitimate, non-discriminatory justification for termination of employment.
Summary of this case from ANDY v. UNITED PARCEL SERVICE INC.Opinion
Civil Action No: 99-1606, Section: "L" (1)
May 3, 2001
ORDER AND REASONS
Before the undersigned is the motion of the defendant, State of Louisiana, through the Department of Culture, Recreation and Tourism and through the office of State Parks ("State"), for summary judgment dismissing the claims of the plaintiff, James Green ("Green").
1. Procedural Background
Green filed his complaint on June 2, 1999, in forma pauperis and requested a trial by jury. Rec. doc. 1. Green alleged:
1. Green was employed by the State of Louisiana as park ranger at a salary of about $1,000 a month at the St. Bernard State Park in St. Bernard Parish, Louisiana (the "Park") (¶¶ 1, 6, 8, 25 and 26);
2. Green was the only African-American ranger at the Park and his superior and co-workers were white (¶ 26);
3. Green received satisfactory to excellent ratings on his evaluations and service awards until James Girard became his superior (¶¶ 27-29);
2. Green kept a notepad during work where he documented "unusual events" (¶ 32);
3. Although Girard gave Green a satisfactory evaluation on April 23, 1991, Girard included on the evaluation the statement "monitoring and documenting the performance of your co-workers is not in a ranger's job, input is welcome, constant criticism is not" (¶¶ 30 and 42);
4. Green reported to Girard that the previous on duty ranger constantly left the bathrooms unclean so Green had to clean them, but Girard failed to take any steps to correct the situation (¶¶ 34-35);
5. Even though standard procedure required that more than one ranger be on duty for a holiday, Girard only assigned Green to work the Mardi Gras holiday in 1991, when approximately 500 people visited the Park (¶¶ 37-38);
6. Girard failed to discipline Saltzman, another Park employee, even though in March and April of 1991, Green brought to Girard's attention the failure of Saltzman to patrol the Park and keep stray dogs out of the Park or assist Green in doing so (¶¶ 38-40);
7. On May 9, 1991, Green requested that Girard delete the reference to monitoring and documenting the performance of his co-workers, and since then Girard harassed Green (¶ 43);
8. [Although the complaint is not clear apparently Green brought Girard's "violations of policies and procedures" to the attention of Girard's superior] and on May 24, 1991, Girard was ordered by Ken Carrier to change Green's service rating and make a list of the duties for the park rangers; and since then Girard held a grudge against Green (¶¶ 44-45);
9. Girard scheduled meetings on Green's day off in retaliation for Green's reporting of Girard's conduct and noted Green's absence if he failed to attend (¶¶ 46-47);
10. Girard required Green to do two weeks of maintenance duty, but then let Malone, a white, do only three days and let Saltzman, another white, off his maintenance duty (¶¶ 48-52);
11. On April 5, 1992, Green asked the Office of State Parks and Civil Service to be brought in to solve the unequal treatment problem at the Park; Girard told Carrier that Green was a detriment to the operation; on April 13, 1992, there was meeting with Carrier; and after a memo from Carrier, Girard began holding other rangers to the guidelines and procedures (¶¶ 53-56);
12. Malone noted on an activity log that Green did not clean up the restroom, but Girard criticized Green for keeping a record on the activities of his co-workers (¶ 58);
13. In 1992, Malone and Saltzman used a racial epithet, "Eightball," to describe Green (¶ 59);
14. In the early part of 1993, Saltzman was suspended for failing to obey a direct order, but Green was terminated in 1996 for failing to respond to a direct order (¶ 60-61);
15. Girard recommended Malone for the pool manager position and Robin Kaufman, a clerk, for a ranger position even though she lacked a certifiable score, but would not recommend Green for the next ranger level (¶¶ 62-64);
16. Green was required by Girard to obtain a doctor's slip to miss a meeting and sign a leave request for leave, but Kaufman and Malone were granted leave without doing so (¶¶ 65-66);
17. Green asked Girard to take pictures and submit a report to Baton Rouge, when in the summer of 1994, racial slurs and epithets were written on the restroom walls but he did nothing (¶¶ 67-69);
18. On May 10, 1995, Girard gave Green a letter of reprimand for a violation of the leave policy (¶ 70);
19. In March and April of 1995, Girard made last minute changes in the work schedule so that Green was changed from a day shift to an evening shift; Green had "business" on the evening of April 23, 1995, so he did not report for the scheduled evening shift; Green notified Girard with a telephone voice mail message he was taking a leave day and Girard reprimanded Green for not obtaining written permission to do so (¶¶ 71-72);
20. On June 16, 1995, racial slurs and epithets were written on a restroom wall that an alleged expert stated appeared to be the work of Malone, Girard and Kaufman (¶ 74);
21. In September, 1995, Green was disciplined by Girard after Green wrote on a "journal tape" (¶¶ 76-77);
22. Since 1991 the State's employees harassed Green by falsely accusing him of taking pool keys to steal money (¶ 78);
23. In May, 1996, Green was recommended for dismissal for failing to cooperate in an investigation where Green described a failure: (1) to properly notify him of a meeting; (2) to select a five member review board prior to a determination of a rule violation by a park ranger; (3) to obtain an attorney; and (4) to permit him to exercise his right of free speech (¶¶ 79-80 and 84-86);
24. Kaufman and other Park employees falsely reported an incident involving Green where Kaufman locked Green in an office and put him in fear of his safety (¶¶ 82 and 87-88);
25. On June 20, 1996, Green received a letter discharging him; he sent grievances in June that went unanswered; and the State continued to harass Green by withholding checks and other benefits for several months (¶¶ 89-91);
These allegations are under Green's first cause of action based upon discrimination, where Green alleged harassment, racial discrimination, a hostile work environment, unlawful employment practices on the part of the State and a failure of the State to investigate such activities. Green also alleged five other causes of action based upon: (1) breach of contract; (2) breach of an implied covenant of good faith and fair dealing; (3) wrongful discharge; (4) intentional infliction of emotional distress; and (5) fraud, deceit and misrepresentation. Rec. doc. 1 at ¶¶ 97-118.
Green's request for the appointment of counsel was denied. Rec. docs. 2 and 4. In addition to the State, Green joined as defendants, Kathleen Blanco, Virginia Plauche, Phillip J. Jones, James Ball, Whiley Harvey, Mary Ginn, Randall Trahan, Kenneth Carrier, James Girard, Frank Jones, Chris Malone, John Saltzman, Van Cavin, and Robin Kaufman (sometimes referred to as "Kathleen Blanco, et al"). Green and the defendants consented to the trial of this matter before the undersigned. Rec. doc. 38.
The defendants' motion to dismiss Green's § 1983 claims and pendent state law claims as prescribed was granted, Rec. doc. 54, and therefore Green's only remaining claims are under Title VII. The individual defendants, Kathleen Blanco, et al, can have no liability under Title VII, and their motion to dismiss the Title VII claims against them was granted. Rec. doc. 54. The only remaining defendant is the State.
This ruling dismissed Green's alleged causes of action based upon: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) wrongful discharge; (4) intentional infliction of emotional distress; and (5) fraud, deceit and misrepresentation.
In support of its motion for summary judgment the State shows that a request for admissions was served upon Green and that the undersigned should treat these as admitted because Green did not respond within the thirty days provided by Fed.R.Civ.P. 36. The State acknowledges that Green responded on the thirty-first day and the State received the response on the thirty-second day. Rec. doc. 64 at p. 9. Under these circumstances the undersigned will not treat the State's request for admissions as admitted.
2. Green's Opposition
Green submitted an opposition to the motion for summary judgment, in which he raises the following issues: (1) Green was not given an opportunity to review and correct the transcript of his deposition taken on January 15, 2001; (2) the State has not responded to Green's request for production of documents; (3) the State's exhibits include documents that were not presented to Green during his employment with the State; and (4) Green attributes his delay in responding to the request for admissions to erroneous information supplied by the State on the deadline for submitting the response. This last issue is moot. Green has not made any attempt to present an affidavit in compliance with Fed.R.Civ.P. 56(f). Green's opposition does not contain any statement of facts that he believes he could prove if he had additional time to respond to the State's motion or if he obtained additional discovery from the State.
The transcript of Green's deposition is not signed by him and it does not show that he waived the right to read and sign the transcript afforded to him by Fed.R.Civ.P. 30(e). Exhibit 2 to Rec. doc. 64. Although Green contends that he was not supplied with a copy of the transcript as required by Fed.R.Civ.P. 30(e), Green does not state what corrections, if any, he would make in the transcript. Green was served with a copy of the transcript with the State's motion for summary judgment on March 16, 2001. Green's opposition was not required to be filed until April 18, 2001. Green has waived his right to make any corrections in the transcript by not submitting them with his opposition to the motion for summary judgment.
Although Green contends that the State has not responded to his request for documents, Green has not presented the undersigned with any motion to compel discovery from the State. This matter has been pending for nearly two years. Green has had ample opportunity to seek discovery from the State and seek relief from the court, if the State failed to respond to his requests for discovery. More importantly, Green does not describe what facts he believes he would be able to present to the court if the State supplied him with the discovery.
Green does not identify what exhibits he contends the State used in support of the motion for summary judgment, but were not presented to him during his employment. The State included nineteen exhibits with its motion for summary judgment:
1. Complaint;
2. Transcript of Green's deposition;
3. May 10, 1995, reprimand with receipt signed by Green;
4. September 28, 1995, reprimand with receipt signed by Green;
5. April 8, 1996, reprimand with receipt signed by Green;
6. April 10, 1996, EEOC charge questionnaire signed by Green;
7. April 29, 1996, reprimand without receipt signed by Green;
8. May 20, 1996, report signed by Christopher Malone;
9. May 22, 1996, suspension letter to Green from Wylie J. Harvey;
10. May 31, 1996, pre-deprivation notice letter to Green from Virginia Plauche (also included are a May 4, 1995, memo to Green and an April 30, 1996 memo to Green);
11. June 18, 1996, termination letter to Green from Virginia Plauche;
12. February 23, 1999, EEOC notice of right to sue;
13. November 3, 2000, minute entry (Rec. doc. 54);
14. State's request for admissions;
15. June 19, 1997, EEOC charge of discrimination signed by Green;
16. April 15, 1996, memo from Girard to Trahan;
17. December 16, 1992, letter from Ball to Saltzman suspending Saltzman for three days;
18. February 1, 1993, letter from Ball to Saltzman suspending Saltzman for three days; and
19. February 4, 1994, letter from Ball to Saltzman discharging Saltzman.
Obviously, some of these exhibits could not have been presented to Green during his employment by the State because: (1) they were generated in connection with the litigation (Exhibits 1, 2, 13 and 14); (2) they were prepared for another employee, John Saltzman (Exhibits 17-19); and they were prepared by Green or the EEOC (Exhibits 6, 12 and 15). Green refers to some of the exhibits in his complaint: Exhibit 3 — Paragraph 70; Exhibit 4 — Paragraphs 76-77; Exhibit 8 — Paragraphs 82, 87 and 88; Exhibits 9 and 10 — Paragraphs 79-80 and 84-86; and Exhibit 11 — Paragraphs 89-91.
The three remaining exhibits are: Exhibit 5 — the April 8, 1996, reprimand for failing to report voids from the cash register; Exhibit 7 — the April 29, 1996, reprimand for wearing street clothes; and Exhibit 16 — the two April, 1996, internal memoranda concerning offensive graffiti in a restroom. In his deposition Green acknowledged making mistakes with the cash register voids and wearing street clothes instead of his uniform. Exhibit 2 at pp. 177, 189 and 205 to Rec. doc. 64. There was extensive discussion of the graffiti in the restroom in Green's deposition. Exhibit 2 at pp. 219. Green's complaint about the State's summary judgment exhibits is without merit.
3. Exhaustion of Remedies
The State contends that there is a conflict between what Green has alleged in his complaint and what was included in his EEOC charge. Where there is such a conflict, the court is required to dismiss Green's Title VII claims that were not included in the EEOC charge. Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000), and Anderson v. Lewis Rail Service Co., 868 F.2d 774, 775 (5th Cir. 1989).
There are two EEOC charges of discrimination in the record signed by Green: (1) EEOC notice of charge of discrimination dated September 27, 1996 (Exhibit B to Rec. doc. 52); and (2) EEOC notice of charge of discrimination dated June 19, 1997 (Exhibit 15 to Rec. doc. 64). Both charges show that the earliest date discrimination took place was May 10, 1995, with the latest date being May 27, 1996. Both charges show that the box preceding "Race" was marked with an "X." No other box describing a cause of discrimination was marked, including the box preceding "retaliation."
The September 27, 1996, charge contains the following description of the circumstances of the alleged violation:
CP alleged that he was subjected to unequal terms and conditions of employment with regard to job assignment, ethnic slurs in the public restroom, discipline, travel expenses and was discharged because of his race, Black, in that Whites were not treated in this manner.
Complaining party.
Exhibit B to Rec. doc. 52. The June 19, 1997, charge contains the following statement:
I was employed on March 23, 1988 and most recently worked in the capacity of Park Ranger II. From May 1995 to May 1996, I was subjected to unequal terms and conditions of employment with regard to job assignment, ethnic slurs appearing on the walls of the public restroom, written warnings and travel expenses. In May, 1996, I was suspended and subsequently discharged.
No reason was given for this unequal treatment.
I believe that I was subjected to unequal terms and conditions of employment and discharged because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that White employees were not treated in this manner.
Rec. doc. 64, Exhibit 15.
In Moore v. BellSouth Telecommunications, Inc., 1997 WL 61201 (E.D.La. 1997), Magistrate Judge Africk granted the defendant's motion for partial judgment and dismissed the plaintiffs Title VII race claim, where the plaintiff only checked the box labeled "disability" and did not check the box labeled "race" in his EEOC charge. In describing the particulars, the plaintiff stated he believed he was discriminated against because of his disability and made no mention of race.
As shown by the charges of discrimination prepared by Green and his description of the circumstances, Green only presented the EEOC with charges based upon racial discrimination during the period from May, 1995, through his suspension and discharge in May, 1996. To the extent Green's complaint alleges a claim for retaliation, for example paragraphs 46 and 92 of the complaint, the claim for retaliation is dismissed. To the extent Green's complaint alleges incidents of racial discrimination occurring prior to May 1995, these claims of racial discrimination are dismissed. Those claims were not raised administratively, and therefore they may not be raised in this proceeding. Green's remaining claims under Title VII are: (1) wrongful discharge based upon racial discrimination; (2) disparate treatment in his discharge; and (3) a hostile work environment.
4. The Standard For Summary Judgment
Fed.R.Civ.P. 56 provides in pertinent part that summary judgment will be granted when ". . . 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." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986), and Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 3189 (1990). To that end, the court must "review the facts drawing all inferences most favorable to the party opposing the motion."Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).
Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; see Lujan, 497 U.S. at 885-86, 110 S.Ct. at 3187. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54.
This burden is not satisfied with "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, by "conclusory allegations," Lujan, 497 U.S. at 871-73, 110 S.Ct. at 3180, by "unsubstantiated assertions," Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by only a "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). The court resolves factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. The court does not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Lujan, 497 U.S. at 888, 110 S.Ct. at 3188. Summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993). If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted.
5. The Analytical Framework Under Title VII
A plaintiff may prove discrimination either by direct evidence or by an inferential or indirect method of proof. Rizzo v. Children's World Learning Centers, 84 F.3d 758, 762 (5th Cir. 1996). Because Green has not proffered any direct evidence of discrimination, he must present evidence of discrimination indirectly using the framework set forth in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817. First, Green must establish a prima facie case of discrimination. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2196 (2000). Second, the State must respond with a legitimate, nondiscriminatory reason for their decision. See McDonnell Douglas 93 S.Ct. at 1824.
If the defendant can articulate a reason that, if believed, would support a finding that the action was nondiscriminatory, "the `mandatory inference of discrimination' created by the plaintiffs prima facie case `drops out of the picture' and the factfinder must `decide the ultimate question: whether [the] plaintiff has proved [intentional discrimination].'" In making her showing on this ultimate question, "the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination," and the factfinder "may still consider the evidence establishing the plaintiffs prima facie case `and inferences properly drawn therefrom[.]'" (Citations omitted).Evans v. City of Houston, ___ F.3d ___, (5th Cir. 2001) (20001 WL 277839, 3). Inappropriate circumstances, the jury can reasonably infer from the falsity of the explanation that the employer is "dissembling to cover up a discriminatory purpose." Reeves, 120 S.Ct. at 2108. "Thus, a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109. See also Russell v. McKinney Hospital Venture, 235 F.3d 219, 224 (5th Cir. 2001).
Although Reeves and Russell are ADEA cases, the analytic framework for Title VII and ADEA cases is the same. Reeves, 235 F.3d at 222 n. 3.
6. Application of the Analytic Framework
A. Green's Prima Facie Case
Green contends that his discharge was based upon race and that he was subjected to disparate treatment in connection with his discharge. In order to establish a prima facie case of discrimination based upon race Green must show: (1) he is a member of a protected group; (2) he was qualified for the position held; (3) he was discharged from the position; and (4) he was replaced by someone outside of the protected group. The record shows that the first three elements are present. Nowhere in Green's complaint does he state by whom he was replaced.
Green filed a reply to the State's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Rec. doc. 49. The twelfth unnumbered page of this pleading contains the following statement:
The State of Louisiana, Department of Culture Recreation and Tourism, Office of State Parks is continuing deliberate indifference to Blacks. The Manager that took over the St. Bernard State Park after Mr. James [Girard] was promoted and move (sic) to another park, was allegedly terminated after he and Defendant Christerpher (sic) Malone were reported for maked (sic) racist statement about Blacks. Discontent among the rangers at the park continued. Allegedly Defendants Mary Ginn, the New District Manager that replaced Kenneth Carrier, and the New Chief of Operations who replaced Randy Trahan was involved in questioning the new manager at the St. Bernard State Park, Defendant Kaufman, and Defendant Malone. The complainant was a white ranger who replaced, Defendant Cavin. Allegedly Ms. Ginn stated that Plaintiffs names should not have been mentioned during the incident.
Nothing was done immediately to manager or Defendants involved. Manager was later fired because allegedly Black workers complained about the manager.
Rec. doc. 49. This is the only statement in the record where Green describes changes in personnel at the Park after his termination. He does not state, by whom he was replaced. In his complaint Green alleged he was the only African-American ranger at the Park. The above statement indicates Girard's replacement as manager at the Park was fired as a result of complaints by African-American employees at the Park and there was discontent among the rangers. One inference is that one or more African-American rangers were hired after Green's discharge and Girard's replacement was terminated on account of their complaints. The State says that Green cannot establish a prima facie case, but does not elaborate.
The Fifth Circuit has cautioned district courts against applying the four-part, prima facie case test too mechanically. "While the fact that one's replacement is of another national origin may help to raise an inference of discrimination, it is neither a sufficient nor a necessary condition." Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000), citing Nieto v. L H Packing Co., 108 F.3d 621, 624 n. 7 (5th Cir. 1997).
In order for Green to establish a prima facie case on his claim for disparate treatment relating to his discharge Green must show white employees were treated differently under circumstances nearly identical to his. Mayberry v. Vought Aircraft Company, 55 F.3d 1086, 1090 (5th Cir. 1995). Green's complaint refers to the treatment of John Saltzman, a white park ranger. Green's complaint states that Saltzman was suspended in 1993, for failing to obey a direct order, whereas Green was terminated in 1996, for failing to respond to a direct order. Rec. doc. 16 at ¶ 60-61. Green ignores that Saltzman was discharged in February, 1996, after a violation of Park rules. Exhibit 19 to Rec. doc. 64.
Green has not presented evidence of a prima facie case in support of his claim that he was discharged on account of his race or that in discharging him he was subjected to disparate treatment. His case could be dismissed on that basis, but the court will review his claims as though he had made out a prima facie case.
B. The State's Proffered Justification
Assuming that Green established a prima facie case under either claim associated with his discharge, the State shows the Office of State Parks issued four memoranda of counseling to Green from May 10, 1995, through April 29, 1996. Exhibits 3, 4, 5 and 7 of Rec. doc. 64. A memorandum of counseling is equivalent to a reprimand.
The first reprimand was issued on May 10, 1995, and described an incident on April 21, 1995, when Green called the residence of Girard and left a message on his telephone answering machine to the effect that he, Green, needed the day off on Sunday, April 23, to take care of personal business. Girard stated he was out of town at the time and did not receive the message until Sunday afternoon. The reprimand described the leave policy of the Office of State Parks that annual leave must be approved prior to its being taken. Exhibit 3 of Rec. doc. 64. Green's allegations concerning this incident appear at paragraphs 70-72 of his complaint in which he alleges. The thrust of Green's allegations is that he was treated differently because of his race when a change in the schedule resulted in placing him on the night shift on April 23, 1995, when he previously was on the day shift for that day. The inference is that Green contends that Girard's change in the shift schedule did not permit Green sufficient time to re-arrange his personal schedule. Green's complaint is silent on the requirements of the Park's leave policy.
The second reprimand was issued on September 28, 1995, when Green, in violation of the established procedures of the Office of State Parks, used the back of the cash register journal rolls to write personal notes regarding allegations against employees of the Park. Exhibit 4 to Rec. doc. 64. Green described the incident in paragraphs 76 and 77 of the complaint, where he acknowledged writing information down on a cash register tape.
The third reprimand was issued on April 8, 1996, for failure to report manager voids from the cash register. The reprimand stated that during the shift weekend of February 17-18, 1996, there were mistakes on the cash register with voids totaling $660.00 that were not accounted for in Green's report. Exhibit 5 to Rec. doc. 64. Green was asked about this incident in his deposition, and he admitted that he made mistakes on the register. Exhibit 2 at pp. 177 and 189 to Rec. doc. 64.
The fourth reprimand was dated April 29, 1996, and showed that Green wore street clothes rather than his uniform to work on April 13 and 14, 1996, in violation of the rule on wearing a uniform while on patrol. In his deposition Green admitted that he was not in uniform on those days. Exhibit 2 at p. 205 to Rec. doc. 64.
On the morning of May 20, 1996, there was an incident at the Park involving Green and the cashier, Robin Kaufman. Green stated in paragraphs 82 and 87 of his complaint that Kaufman locked Green in an office at the Park, when Green, as a park ranger, was authorized to be in that office, and Kaufman cursed Green so that Green feared for his safety. Kaufman related that she was in Girard's office (the inner office) working on the weekly report, when Green knocked on the exterior door to the outer office. Kaufman went into the outer office and opened the door to admit Green, who went into the inner office. The exterior door was shut and locked by Kaufman as Green entered. After a confrontation between the two employees in the inner office over Green's presence, Kaufman demanded that he leave the inner office, which Green did. Kaufman closed and locked the door separating the inner and outer office without recalling that the exterior door was locked and Green was unable to leave. Green said he was being unlawfully imprisoned, so Kaufman unlocked the door separating the two offices and unlocked the exterior door, so that Green could leave the building. Exhibit 8 to Rec. doc. 64.
Green was told to report to an investigation at 11:00 a.m. the next day, May 21, 1996, at the Office of State Parks in Baton Rouge. Exhibit 8 to Rec. doc. 64. The State's account of the meeting is as follows:
You arrived late for this meeting, at approximately 11:10 a.m. Initially present were Mr. Trahan [Parks Chief of Operations] Mr. Carrier [Girard's immediate supervisor] and yourself [Green]. Mr. Trahan instructed you to cooperatively and truthfully respond to his questions. You advised Mr. Trahan that you were not prepared to answer his questions. You asked permission to leave the meeting. Mr. Trahan explained your obligation, as an employee of the Office of State Parks, to cooperate in this investigation. He also informed you that you were free to leave if you first submitted a letter of resignation. You persisted in your refusal to answer Mr. Trahan's questions.
As a result of your uncooperativeness, Mr. Trahan contacted Ms. Mary Ginn, Human Resource Director, who, in turn, contacted Mr. Mark E. Falcon, the Department's consulting attorney. Recognizing the seriousness of this situation, Ms. Ginn and Mr. Falcon joined the meeting at approximately 11:45 a.m. Mr. Falcon advised you that he was acting as representative of Ms. Virginia Plauche, Assistant Secretary. He provided you a second opportunity to cooperatively and truthfully participate in the administrative investigation. Mr. Falcon explained to you that the issues under investigation were not criminal in nature. As such, he explained that you did not have a right to counsel, that the Fifth Amendment privilege against self-incrimination did not attach; and that your responses would not, in any way, be used against you in criminal proceedings. Additionally, Mr. Falcon explained to you that your failure to cooperate would result in severe disciplinary action. Notwithstanding these admonitions, you advised those present that you had no intention of responding to any form of questioning, and that you desired to leave the meeting, which you did at approximately 12:15 p.m.
Exhibits 9 and 10 to Rec. doc. 64.
Green's allegations in his complaint concerning this meeting are as follows:
80. Plaintiff states that with respect to failing to cooperate, plaintiff was informed on May 20, 1996, of the May 21, 1996 meeting. Plaintiff states that he was not put on notice as per the Department's form, and that the meeting was impromptu.
81. Plaintiff states that with respect to the impromptu meeting on May 21, 1996, the appointing authority failed to follow the procedure with respect to selecting a 5 member quorum of the office review board as pursuant to the Guidelines and Policies of the Office of State Parks and Law Enforcement Policy and Procedure Manual to determine if a ranger has violated a rule.
85. Plaintiff states that he was not allowed to obtain an attorney and states that Attorney Falcon stated that he could leave only if plaintiff resigns.
Rec. doc. 1. In his deposition Green acknowledged that he did not answer questions at the meeting. Exhibit 2 at p. 202 of Rec. doc. 64.
It is undisputed that immediately following the May 20, 1996, incident with Kaufman at the Park office, Green was asked to appear at a meeting in Baton Rouge the next day for an administrative investigation. Neither his superior, Girard, nor his co-workers including Kaufman, were participants in the meeting. At the meeting Green refused to answer any of the questions of the chief of operations for all state parks or the attorney for the state parks.
On May 31, 1996, Green was sent a pre-deprivation notice of the charges against him, including his failure to participate in the administrative investigation in Trahan's office on May 21, 1996. Green was given until June 10, 1996, to make a written response. Exhibit 10 to Rec. doc. 64. Green sent responses dated June 3 and 13, 1996. Exhibit 11 to Rec. doc. 64. The assistant secretary for the Office of State Parks, Virginia Plauche issued a letter, dated June 18, 1996, terminating Green. In addition to describing Green's failure to participate in Trahan's administrative investigation, Plauche described Kaufman's account of the incident in the office of the Park on May 20, 1996, and Green's response to the May 10, 1995, reprimand as the reasons for the decision to terminate Green.
Green also alleged that a white employee at the Park, John Saltzman, was suspended in early 1993, for failing to obey a direct order, but Green was terminated in 1996 for failing to respond to a direct order. Paragraphs 60-61 of the complaint. Green alleged that Girard failed to discipline Saltzman after Green brought to Girard's attention the presence of Saltzman's dog at the Park. Paragraphs 38-40 of the complaint.
The State submitted evidence that Saltzman was treated in the same manner as Green. Saltzman, like Green, was a Park Ranger II. On December 16, 1992, he was suspended for two days for being out of uniform, whereas Green was only reprimanded for a similar infraction. Exhibit 17 to Rec. doc. 64. On February 12, 1993, Saltzman was suspended for three days for hindering an investigation. Exhibit 18 to Rec. doc. 64. On February 4, 1994, Saltzman was terminated after he brought his dog, a Rottweiler, unleashed and uncollared onto the Park property on January 24, 25 and 26, 1996, when he was warned after the first two occasions about bringing the dog to work. Exhibit 19 to Rec. doc. 64.
Green's allegations of disparate treatment as compared to Saltzman are unsupported and the State has asserted a non-discriminatory reason for Green's termination.
C. Green's Evidence of Pretext
The State has articulated legitimate, nondiscriminatory reasons for Green's termination. The most important of these was Green's refusal to participate in the department's administrative investigation prior to his termination. The State has also shown that a white employee, Saltzman, was treated in the same manner as Green. Green has not presented any evidence to dispute the proffered justification for his termination. While Green disputes Kaufman's version of the events in the Park office, Green admits that he refused to answer Trahan's questions concerning the incident and he was terminated for failing to do so. He has presented no evidence of pretext for his termination.
D. Green's Additional Evidence of Discrimination
Green contends that Girard improperly favored other employees over Green on setting work schedules. This caused Green to have to take leave at the last minute and Green was reprimanded for violation of the leave policy in April, 1995. Rec. doc. 1 at ¶¶ 70-72. In June, 1995, racial slurs and epithets were written on the restroom mirrors. Green contends they were written by his immediate superior, Girard, and two of his co-employees, Malone and Kaufman. Id. at ¶ 74. he alleges that these same two co-employees falsely reported the circumstances of the incident in the Park office in May, 1996. Id. at ¶¶ 82, 87 and 88.
Green was not terminated by Girard, Malone or Kaufman. Assuming the truth of Green's allegation of their actions and statements, and that such actions and statements constitute evidence of race animus, there is no evidence that Girard, Malone or Kaufman were principally responsible for Green's discharge. They were not even present at the May 21, 1996, meeting in Baton Rouge. The only persons present at that meeting were Trahan, Carrier, Falcon Ginn and Green. The letter discharging Green was signed by Virginia Plauche. The suspension letter was signed by Wylie Harvey. In Russell v. McKinney Hospital Venture, 235 F.3d 219 (5th Cir. 2000), the Fifth Circuit said:
We therefore look to who actually made the decision or caused the decision to be made, not simply to who officially made the decision. Consequently, it is appropriate to tag the employer with an employee's age-based animus if the evidence indicates that the worker possessed leverage, or exerted influence, over the titular decisionmaker.
Id. at 228. There is no evidence to show that Girard, Malone or Kaufman possessed leverage, or exerted influence over the decisionmakers: Plauche, Whiley and Trahan. This is particularly true because it was Green's obdurate refusal to respond to Trahan's questions that was the trigger for the decision to discharge him.
Further evidence of a lack of discriminatory motive by Whiley and Trahan is the fact that Green was offered the position of manager before the position was offered to Girard. Rec. doc. 63. In response to the State's request that Green admit he was offered a promotion to the position of manager of the Park in 1991 (Exhibit 16 to Rec. doc. 64), Green said,
When I was told to fill out an application for the Park Manager's position and told to go to Baton Rouge to meet with Mr. Randy Trahan, Chief of Operations, I was insulted by the way it was handled. I felt that they could not find anyone in the system who wanted to be the manager of the St. Bernard State Park, so they grudgingly offered me the position under pressure from the then Assistant Secretary of the Office of State Parks, who was a Black man.
I decline (sic) the position because I felt the offer was not sincere and was only superficially being supported by Mr. Wiley Harvey, Mr. Randy Trahan, Chief of Operations and Mr. Kenneth Carrier, District Manager. I also felt that I would have had to endure resentment from white rangers and managers.
Rec. doc. 63. Notwithstanding Green's subjective view of the motive of the State, the fact remains that Green was offered the position of manager at the Park. This fact alone is sufficient to conclude that the State lacked any discriminatory intent toward Green.
7. Green's Claim of Hostile Work Environment
In order to establish a prima facie case of hostile work environment, Green must show: (1) he belongs to the protected class; (2) he was subjected to harassment; (3) the harassment was based upon his race; (4) the harassment affected a term, condition, or privilege of his employment; and (5) the State knew or should have known of the harassment and failed to take remedial action. McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998) (disability-based harassment) and B.T. Jones v. Flagship Int'l., 793 F.2d 714 (5th Cir. 1986) (sexual-based harassment).
[W]e can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 371 (1993).
During the pertinent period, May, 1995, through June, 1996, Green reported one incident where racial slurs and epithets were written on a restroom wall. There is no dispute that these were offensive. Exhibit 19 to Rec. doc. 64 and the fifth unnumbered page to Rec. doc. 49. There was no reoccurrence before his termination a year a later. It did not cause Green to be unable to perform his job, because he worked for another year before he was discharged. There were also no showing, other than Green's suspicions, that Park personal had anything to do with the graffiti.
Green also alleges that Kaufman locked him in an office and put him in fear of his safety. Even Green acknowledges that Kaufman was in the inner office, while Green was in the outer office. Green does not explain why Kaufman, a female clerk, was able to place Green, a park ranger, in fear of his safety. Green has not has not established a prima facie case and created a jury issue with respect to his claim of a hostile work environment.
8. Conclusion
For the foregoing reasons, therefore, Green has not shown that there are any genuine issues as to material fact and therefore the defendant is entitled to judgment as a matter of law. It is therefore ORDERED that Green's Title VII claims are DISMISSED with prejudice, each party to bear its own costs.