Opinion
No. 3:99-CV-2370-P
February 11, 2003
MEMORANDUM OPINION AND ORDER
Plaintiffs, African-Americans with an average of more than twenty years' experience at General Motors Corporation ("GM"), have sought promotions at GM but (they believe) have been repeatedly passed over in favor of nonminorities whose qualifications and experience were (in their opinion) less impressive than their own. Suspecting unlawful race discrimination to be behind these employment decisions, Plaintiff's filed the present lawsuit seeking redress under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended.
Presently before the Court is Defendant's Motion for Summary Judgment, filed August 13, 2002. Plaintiffs filed their Response on September 23, 2002, and supplemented the record on September 28, 2002. Defendant filed a Reply on September 30, 2002. After reviewing the motion, the pleadings, the summary-judgment evidence, and applicable case law, the Court hereby GRANTS Defendants' Motion.
I. Background
A. Procedural History
Donald Hensley filed a charge of discrimination with the Equal Employment Opportunity Commission on October 21, 1996. The charge, as subsequently amended, alleged that GM denied African-American employees "promotion to Per Diem Supervisor, Supervisor, Management Trainee, Management Support Staff, Customer Relations, Employee Relations, Quality Assurance and other entry-level management or entry-level salaried positions because of . . . race . . ." Pl.'s Br., Ex. B. A Summary of Evidence Supporting EEOC Charge elaborates the claims of Donald Hensley and Taft Richards. The Summary also describes the claims of Willie Dedmon, Chris Middleton, Patsi Patterson, Elizabeth Wilson, Tiny Payne, Nettie Elliot, Wanda Evans, Raymond Finley, and Charles Grooms III. They too believe that they have been passed over for supervisory positions because of their race.
After receiving a right-to-sue letter on or about July 22, 1999, Donald Hensley filed this lawsuit on behalf of Taft Richards, Willie Dedmon, Chris Middleton, Patsi Patterson, Elizabeth Wilson, Tiny Payne, Nettie Elliot, Wanda Evans, Raymond Finley, Charles Grooms III, Audrey Simmons, and Derrick Waites on October 19, 1999. The pro se complaint incorporated by reference the Summary Report.
On April 22, 2000, the Court struck the complaints of all plaintiffs except Mr. Hensley because only he (in his pro se capacity) had signed the Complaint. Plaintiffs filed a motion to reconsider and, in light of the leniency generally accorded the pleadings of pro se plaintiffs, the Court reinstated the claims of Taft Richards, Willie Dedmon, Chris Middleton, Patsi Patterson, Elizabeth Wilson, Tiny Payne, Nettie Elliot, Wanda Evans, Raymond Finley, and Charles Grooms III on February 15, 2002, because their signatures appeared on the Summary Report filed with the Complaint.
By May 2002, only Donald Hensley and Taft Richards had retained counsel and made an appearance. In response to an Order of this Court dated May 14, 2002, Wanda Evans, Nettie Elliott, and Patsi Patterson notified the Court of their intent to prosecute the case. The Court dismissed the claims of Willie Dedmon, Chris Middleton, Elizabeth Wilson, Tiny Payne, Raymond Finley, and Charles Groom without prejudice on June 7, 2002. The Court directed Wanda Evans, Nettie Elliott, or Patsi Patterson to inform the Court by July 1, 2002, whether they intended to retain counsel or proceed pro se. The Court has received no such information. Thus, the claims of Wanda Evans, Nettie Elliott, and Patsi Patterson are hereby DISMISSED WITHOUT PREJUDICE.
The remaining plaintiffs are Donald Hensley and Taft Richards. Defendant General Motors Corporation filed a Motion for Summary Judgment on August 13, 2002.
B. Factual Background
Donald Hensley
Donald Hensley graduated from Southern University in 1975 with a Bachelor of Arts degree. During and after college, he worked as an alcohol and drug counselor at the Salvation Army. In the summer of 1977, he was a management trainee at Goodyear. He began his career at General Motors in September 1977 as an assembler in the Trim Department. He spent a year as a welder in the Body Shop Department during 1981-1982, then became an assembler in the Chassis Department. He worked as a relief person in 1984 but returned to an assembler position in October of that year. Mr. Hensley became a team leader in the Chassis Department in 1996.
Early on at GM, Mr. Hensley expressed a desire to enter management. Hoping to secure a management-trainee position, he participated in an assessment process in 1981, but lost out to a white male. In October 1983 he attended the Basic Consulting Skills Workshop in Waco, Texas. While he was in Waco, a training class was held for new supervisors. According to Mr. Hensley, four white men and one black man (who was later fired) were selected for supervisory positions. Another assessment was held in 1985. Mr. Hensley participated but was passed over. He applied for a Manager Trainee and Specifications position in 1986 or 1987, but white men were hired instead.
In the meanwhile, to enhance his training, Mr. Hensley completed a variety of courses at GM. These courses included the Computer Awareness Training Course (1986); Team Concept Training Course (1987); Plant Layout and Product Information Course (1987); Quality Training Course (1987); Safety Training Course (1987); Advanced Computer Awareness Training (1987); and Team Leader Training (1998). He has, since 1984, occasionally worked as a substitute teacher in the Dallas Independent School District.
After a hiring freeze was lifted, Mr. Hensley applied in 1992 and 1993 for salaried positions as Manager Trainee or Per Diem Supervisor, as well as in entry-level management and Customer Relations. With two exceptions, white persons were selected instead of Mr. Hensley. The plant closed for about eighteen months in 1994-1995 due to construction.
In May and September 1996, Mr. Hensley applied for the same positions he sought in 1992 and 1993. He was told to speak to Mike Weingart about a temporary per diem assignment but he never did so. Tommy Jarman, Doug Orr, Mike Ihrig, and Scott Clark, all white men, were hired instead of Mr. Hensley, though he had greater seniority and (in his opinion) better qualifications.
Mr. Hensley applied to become a Management Trainee or Per Diem Supervisor in 1997, but watched GM hire white persons with "less qualifications and seniority" while he remained an assembler. He cast a wider net in 1998, seeking a salaried position as Per Diem Supervisor, Supervisor, Management Trainee, or management support staff, a supervisory position in customer relations, employee relations, or quality assurance, or any other entry-level management position. Mr. Hensley, who was a plaintiff in a class-action suit against GM in the early 1980s seeking greater management opportunities for minorities, remained an hourly worker while white employees with less seniority and (to his mind) lesser qualifications filled these salaried positions. Although Mr. Hensley submitted an application in 1998, he was not informed by GM about manager-trainee testing that was to be conducted on March 27 and 28. No announcements were posted, even though the testing is "open."
Submitted applications are considered "active" for one year. Mr. Hensley submitted a resume or an application seeking a supervisory position each January from 1996 through 2001. Each year these positions went to white people he considers less qualified and less experienced than himself. He decided not to submit an application in 2002 because he is "sick and tired of submitting resumes and applications and not getting any kind of response." Hensley Depo. at 120. Mr. Henlsey believes he is being denied an opportunity to move into management, despite his education, experience, and qualifications, because of his race.
Taft Richards
Taft Richards graduated from East Texas State University in Commerce, Texas, in 1976 with a Bachelor's degree in business administration. He earned a Master's degree at East Texas State in 1978 with emphasis on marketing and management. Upon completing his M.B.A., he took a job at GM as a stockman in the parts department. After a brief stint as an assembler in the Chassis Department, Mr. Richards began management training in September 1980. He worked as a timekeeper in the Financial Department for seven years, then held the title of Senior Clerk for three years and Accountant for two more. In 1994, he became a supervisor in the Materials Department.
Mr. Richards learned in the summer of 1995 that his salaried position was "at risk." Efforts were made in late 1995 to relocate Mr. Richards to Atlanta, Georgia, or Shreveport, Louisiana, but the jobs did not come through for him. He turned down an opportunity to go to Detroit, Michigan, and keep his salaried position. In March 1996 he agreed to return to the ranks of the hourly workers as an assembler in the Chassis Department. Although he felt that GM employee Shirley Dollar had hindered his attempt to secure the job in Shreveport, he decided not to file an EEOC charge. When he took the demotion, he "really felt at some point in time [he] would get an opportunity to go back into management" and thought that an EEOC charge "might be held against [him]." Richards Depo. at 130-31.
In early 1996, GM's EEO representative Tom Fontaine told Mr. Richards about a supervisory job at the service parts plant in Everman, Texas. The M.B.A. graduate, long-time employee of the financial department, and former supervisor was required to take a test on situational judgment and basic math. He traveled to Everman to take the test, but failed the subjective portion of the test. Though he could have tried again, he declined to do so as the position had already been filled.
According to his deposition testimony, Mr. Richards has consistently asked Al Corpus, the director of the Materials Department, about supervisory openings in the department. Mr. Corpus has encouraged him to seek a per diem supervisor or team leader position. Mr. Richards has submitted applications for supervisory positions, hoping to step in when supervisors retire. Several white persons have been placed in supervisory positions in the Materials Department, sometimes before Mr. Richards even learned of an opening. Mr. Richards believes that he is being denied opportunities to return to the ranks of salaried employees because of his race.
II. Motion for Summary Judgment
A. Legal Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact 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, 323 (1986). The moving party bears the burden of identifying the basis for its belief that there is an absence of a genuine issue for trial, and pointing out those portions of the record that demonstrate such an absence. Id.
Once the movant has made this initial showing, the nonmoving party must present competent summary-judgment evidence to show a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Such evidence consists of specific facts that show a genuine fact issue, such that a reasonable jury might return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). But mere conclusory statements, speculation, and unsubstantiated assertions are insufficient to fend off a motion for summary judgment. Anderson, 477 U.S. at 248-50; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993).
If the nonmoving party fails to present probative evidence with respect to an essential element of his case, on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Admin. Central S.A., 776 F.3d 1277, 1279 (5th Cir. 1985). But if the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1999).
B. Defendant's Bases for Summary Judgment
Defendant's grounds for summary judgment are explained in the brief filed in support of its motion. Defendant seeks summary judgment in its favor as to any alleged Title VII violation that took place before January 4, 1996, and any § 1981 claim based on conduct predating October 19, 1997. As to claims that are not time barred, Defendant maintains that Plaintiff's cannot make out a prima facie case of race discrimination, and even if they can, the individuals selected for the positions sought by Plaintiff's were more qualified for the positions in question. Finally, Defendant argues that Plaintiff's cannot articulate a prima facie case of retaliation.
C. Plaintiffs' Objections to the Michael Rich Affidavit
Plaintiffs raise three objections to the Affidavit of Michael Rich and urge this Court not to consider its contents in determining whether to grant summary judgment. First, plaintiffs state that Rich did not have personal knowledge of the matters asserted in ¶¶ 24 and 33. Second, the statements contained in ¶¶ 4-6, 8, 12, and 19-37 are allegedly based on hearsay. Finally, the exhibits attached to Rich's affidavit have not been properly authenticated.
Rule 56(e) requires that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).
With its Reply, Defendant filed a supplemental affidavit addressing Plaintiff's' objections. The Court is satisfied that the Affidavit is not defective. Plaintiffs' objection is overruled.
III. The § 1981 Claims and the Statute of Limitations
Defendant moves for summary judgment in its favor as to all § 1981 claims arising from acts taken prior to October 19, 1997. Def.'s Br. at 22. Under Texas law, the statute of limitations for § 1981 claims is two years. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). The motion is GRANTED.
IV. Richards' Failure to Exhaust Administrative Remedies
Defendant urges the Court to grant summary judgment in its favor with respect to claims asserted by plaintiff Taft Richards because he "never filed a charge with the EEOC, and has thus failed to exhaust his administrative remedies entirely." Def.'s Br. at 20. Defendant maintains that the so-called "single-filing rule" does not apply to Mr. Richards because "Hensley and Richards have always worked in different departments, under different supervisors and in different positions. They have sought promotions at different times. Had Richards, a previous salaried employee, filed a charge of discrimination, it would not have been "essentially identical' to Hensley's." Id.
A plaintiff must timely file an EEOC complaint before bringing a Title VII suit. Allen v. U.S. Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982). "However, in a multiple-plaintiff, non-class action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiffs individual claim, then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement." Id. Where "the gravamen of their complaints is the same," or the complaints are "sufficiently similar," it is not necessary for each of the plaintiffs to file "essentially identical charges" with the EEOC. Crawford v. United States Steel Corp., 660 F.2d 663, 666 (5th Cir. Unit B 1981). "[T]he fact that the plaintiffs worked in different departments does not mean they are not similarly situated." Id.
Here, the gravamen of the complaint filed with the EEOC, as amended, was that African-Americans hourly employees at the GM plant in Arlington, Texas, were repeatedly denied hire/promotion to entry-level management positions because of their race. The fact that Mr. Richards was once a supervisor does not change the substance of his allegation that, at the time in question, he, like Mr. Hensley, was an hourly employee repeatedly denied promotion in favor of less-experienced white persons. Furthermore, Mr. Richards was among the persons identified as a potential member of a proposed class action, and the Summary Report detailed the discrimination allegedly directed at him. Summary judgment based on Mr. Richards' purported failure to exhaust administrative remedies is DENIED.
V. Time Limit on Title VII Claims
Defendant also asks that the Court grant summary judgment as to any violation of Title VII that may have occurred prior to January 4, 1996. Plaintiffs argue that the Court can reach beyond that date and assess liability under the continuing-violation theory. Because the continuing-violation theory does not apply to the facts at hand, the motion is GRANTED as modified below.
A Title VII plaintiff in Texas must file a charge of discrimination within 300 days of learning of the conduct alleged. 42 U.S.C. § 2000e-5 (e)(1); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Federal courts generally treat this 300-day filing requirement in the nature of a statute of limitations. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, ___, 122 S.Ct. 2061, 2070 (2002); Webb v. Cardiothoracic Surgery Assoc. of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998). Mr. Hensley filed his first charge with the EEOC on October 31, 1996. Pl.'s Compl. Unless some equitable doctrine applies, plaintiffs' right to recover for claims arising prior to January 5, 1996, is cut off. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-394 (1982).
Defendant appears to have omitted February 29, 1996, in its counting. The extra day in February means that the 300th day from October 31, 1996, is January 5, 1996.
Plaintiffs urge the Court to apply the continuing-violation doctrine to rescue claims arising from acts taken before the 300-day limit. The continuing-violation doctrine is a limited, equitable exception to the limitations period where an unlawful employment practice manifests itself over time, rather than as a series of discrete acts. See Celestine v. Petroleos de Venezuela S.A., 266 F.3d 343, 351 (5th Cir. 2001); Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997). The continuing-violation doctrine notwithstanding, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 536 U.S. at ___, 122 S.Ct. at 2072. An employer's refusal to hire or promote an individual is a discrete act of discrimination, a "separate actionable `unlawful employment practice'" that cannot be resuscitated under the continuing-violation doctrine if time barred under § 2000e-5(e)(1). Id. at 2073. Summary judgment is GRANTED as to all claims arising prior to January 5, 1996.
VI. The Employment Discrimination Claims
When a plaintiff alleges disparate treatment based on race, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiffs race must have "actually played a role in the employer's decision-making process and had a determinative influence on the outcome." Id. Plaintiffs must prove intentional discrimination through either direct or indirect evidence. Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden-shifting framework. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
To defeat a motion for summary judgment, a plaintiff relying on indirect evidence must first establish a prima facie case of discrimination. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). In the context of an alleged failure to promote, a prima facie case is established if the plaintiff provides evidence that: (i) he is a member of a protected class; (ii) he sought and was qualified for an available employment position; (iii) he was not promoted; and (iv) the employer promoted or hired someone (or continued to seek applicants) from outside of his protected class. See id. Once established, the prima facie case raises a presumption of discrimination, which the defendant may rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). This burden on the employer is one of production only, not persuasion, involving no credibility assessments. Reeves, 530 U.S. at 142 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id. at 142-43.
Because the plaintiff bears the burden of persuasion on the issue of discriminatory intent, the plaintiff must present evidence sufficient to support an inference of unlawful discrimination. Id. at 143. Where the plaintiff relies on circumstantial evidence to make his case, he can pursue this objective by showing that the defendant's legitimate nondiscriminatory reason is merely pretext. Id. Pretext can be demonstrated by various types of proof. Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989). One way of doing so is to demonstrate that the legitimate reasons offered by the defendant were "unworthy of credence." Tex. Dept. of Comm'y Affairs v. Burdine, 450 U.S. 248, 256 (1981). Other evidence bearing on the issue of pretext might include the defendant's treatment of the plaintiff before the time frame of the current dispute; the defendant's reaction to plaintiffs "legitimate civil rights activities;" and the defendant's "general policy and practice with respect to minority employment ." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). Noting that "[t]here are certainly other ways in which [a plaintiff] could seek to prove that [the defendant's] reasons were pretextual," the Supreme Court has indicated that courts should not limit plaintiffs to a precise manner of proving pretext. Patterson, 491 U.S. at 188 (district court erred by requiring jury to find that plaintiff made a particular showing).
This is not to say that a plaintiff automatically survives a motion for summary judgment by presenting any proof of pretext, no matter how meager. See Reeves, 530 U.S. at 148; Russell, 235 F.3d at 223. There may well be instances where the fact issue raised by the plaintiff on the truthfulness of the defendant's explanation is too weak to give rise to an inference of discrimination in light of a record that is replete with uncontroverted, independent evidence that no discrimination occurred; or the record might conclusively reveal some other nondiscrimi-natory reason for the defendant's decision. Reeves, 530 U.S. at 148. It is wise to note, however, that such demonstrations — so conclusive as to justify taking the issue out of the jury's hands — are likely to be "uncommon" or "atypical." Id. at 154-155 (Ginsburg, J., concurring). In sum, a nonmoving plaintiff can defeat a motion for summary judgment in two ways. One is by creating a fact issue concerning direct evidence of discriminatory intent. The other is by submitting evidence which, taken as a whole, creates a fact issue as to whether the employer's stated reasons actually motivated the employer. Factors relevant to this inquiry include "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).
A. Prima Facie Case
1. Donald Hensley
Plaintiff Donald Hensley has articulated a prima facie case of race discrimination. Mr. Hensley, as an African-American, belongs to a protected class. He submitted applications for supervisory positions every year from 1996 through 2001. See Depo. of Hensley at 120, lines 5-25. Defendant does not dispute that Mr. Hensley is qualified to be a supervisor. The record shows that white persons were hired for or promoted to supervisory positions sought by Mr. Hensley.
The summary-judgment evidence indicates that Mr. Hensley has been seeking to secure a management position since at least 1979. Depo. of Hensley at 85, lines 17-23.
Defendant argues that Mr. Hensley fails to articulate a prima facie case of discrimination because he does not identify "specific instances in which a failure to promote was allegedly due to race." Def.'s Br. at 28. Defendant maintains that Mr. Hensley "may not simply set forth a laundry list of names of individuals who hold positions other than hourly assembly positions, and make the blanket assertion that these individuals are less qualified for salaried or management positions than plaintiffs." Id. Citing the Second Circuit's decision in Hudson v. Int'l Bus. Mach., 620 F.2d 351, 354 (2d Cir. 1980), Defendant suggests that a plaintiff is obliged to identify "particular open positions" in order to make a prima facie case of discrimination.
Defendant's reliance on Hudson is misplaced. In Hudson, the Second Circuit found no prima facie case of discrimination because the plaintiff offered "no proof . . . that any particular position [that would constitute a promotion] was even available." 620 F.2d at 354. To be denied a promotion, it is necessary to demonstrate an opportunity for promotion, and the plaintiff in Hudson failed to present proof that "any such position was available at the time" the plaintiff said he was discriminated against. Id. Without proof of an open position, there is no employment decision to be challenged, and no prima facie case. Hudson is irrelevant because Defendant admits that it sought per diem supervisors in 1996, and the summary-judgment evidence indicates that Defendant actually hired supervisors-in-training in 1996 and 1998 and production supervisors in 1997 and 1998.
The Court acknowledges that the Second Circuit has elsewhere stated that a prima facie case will not lie where the plaintiff makes general requests for promotion during an annual review, rather than seeking a "specific position or positions." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). Brown has been limited to cases where the plaintiff alleges only that she generally requested promotion. See Mauro v. S. New England Telecomm., Inc., 208 F.3d 384, 387 (2d Cir. 2000) ("Brown does not apply where . . . the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them."); Murray-Dahnir v. Loews Corp., No. 90 CIV 9057 LLM, 1999 WL 639699, at *3 (S.D.N.Y. Aug. 23, 1999) (finding prima facie case where plaintiff repeatedly applied for position of Director and Assistant Controller). Plaintiffs' Complaint specifies the positions Mr. Hensley applied for in 1996, 1997, and 1998. His prima facie claim does not fail simply because his complaint implicitly calls into question the numerous instances in which Defendant hired or promoted other people not of Mr. Hensley's protected class.
2. Mr. Richards
Taft Richards, an African-American, is a member of a protected group. He states in his deposition that he applied for supervisory positions in the materials department at the Arlington plant and at the service-parts department at the plant in Everman, Texas. The fact that Mr. Richards formerly served as a supervisor in the materials department indicates that he is qualified for such a position, and Defendant does not dispute this matter. Mr. Richards alleges that three white persons were hired as supervisors in the materials department instead of himself, including Gayla Miller Smith and John Barry. Mr. Richards has made out a prima facie case with respect to these employment decisions.
Mr. Richards also challenges the promotion of a white man named "Greg," who "was hired in material as a supervisor" in 1997. Richards Depo. at 152, lines 18-19. Defendant states that "GM's records do not reflect the hiring of an individual named "Greg" as a production or manufacturing supervisor in 1997." Def.'s Br. at 17 (Fact ¶ 91). Insofar as Defendant appears to have looked for "Greg" in the production or manufacturing departments rather than the material department, the Court draws the reasonable inference that a "Greg" actually was a supervisor in the material department as Mr. Richards has testified. A prima facie case of discrimination lies here.
As for the position at the Everman plant, Mr. Richards admits that he did not pass a test required for the job in question. Furthermore, he does not identify who was selected for the position, much less whether it was filled by someone not of his protected class. Because Mr. Richards has not made out a prima facie case of discrimination with respect to the Everman job, Defendant's motion for summary judgment is GRANTED as to that particular employment decision.
Plaintiffs' Response maintains that Mr. Richards is more qualified than the persons hired as production supervisors at the Arlington plant. See Pl.'s Resp. at 17-19 (comparing persons hired into such positions with Mr. Richards). Whether Mr. Richards has stated a prima facie case of discrimination with respect to Defendant's failure to make him a production supervisor hinges on a preliminary question: Did Mr. Richards ever apply for a position as production supervisor? In his deposition, Mr. Richards tells of his many conversations with Al Corpus, the head of the materials department, and the hiring decisions mentioned in the Complaint all relate to supervisors in the materials department. At the same time, Mr. Corpus encouraged Mr. Richards to seek a position as team leader or per diem supervisor. In a section of the deposition where he is discussing "entry-level positions," Mr. Richards states that he has filled out applications or submitted resumes and "let them known that [he was] interested in working in management" Richards Depo. at 156-57.
The Court finds that Mr. Richards has not presented a prima facie case of discrimination with respect to Defendant's failure to make him a production supervisor. The only evidence suggesting he ever applied for the position of production supervisor is a vague remark in his deposition testimony. This evidence contrasts starkly with the specific statements of Mr. Hensley, whose deposition testimony is corroborated by an affidavit, the Summary Report, and documentary evidence. The Complaint makes no mention of any attempt by Mr. Richards to secure a production-supervisor position. Because Plaintiff has not established a prima facie case of discrimination by Defendant in making these hiring decisions, the Court GRANTS summary judgment in favor of Defendant with respect to any claims of arising from Defendant's failure to make Mr. Richards a production supervisor.
* * * * *
By making out prima facie cases of unlawful discrimination under McDonnell Douglas, Mr. Hensley and Mr. Richards raise a rebuttable presumption of discrimination.
B. Legitimate Nondiscriminatory Reasons for Not Promoting Plaintiffs
To rebut the inference of unlawful discrimination raised by Plaintiffs' prima facie cases, Defendant states that "GM believed that [the individuals hired] possessed greater qualifications than plaintiffs for the supervisory positions for which they were hired." Def.'s Br. at 30. This reason apparently applies to each hire challenged by Mr. Hensley. As for the employment decisions challenged by Mr. Richards, Defendant offers other specific reasons for selecting someone else. Ms. Smith, a salaried employee who did not voluntarily become an hourly employee, "had priority over [Mr. Richards] for any open supervisory position in the material department." Def.'s Br. at 17 (Fact ¶ 93). Mr. Barry "was already a supervisor on leave of absence" at another plant before transferring to Arlington. Id. (Fact ¶ 94). Defendant apparently challenges the very existence of "Greg." Id. (Fact ¶ 91).
The Court agrees that these are legitimate and nondiscriminatory reasons for rejecting an applicant. See Price v. Fed. Express Corp., 283 F.3d 715, 721 n. 2 (5th Cir. 2002). Defendant has satisfied its burden of production by articulating a legitimate, nondiscriminatory reason for rejecting Plaintiffs. Thus, the presumption of discriminatory intent raised by Plaintiffs' prima facie cases of discrimination drops out, and it remains for Plaintiffs to present evidence raising a genuine issue of material fact with respect to impermissible discrimination.
C. Evidence of Pretext
To demonstrate the existence of a genuine issue of material fact in a Title VII claim based on indirect evidence of discriminatory intent, a plaintiff may produce evidence that the legitimate, nondiscriminatory reason articulated by the defendant is pretext for an unlawful purpose. There is no one way by which this proof must be presented. Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989). Plaintiffs argue that the summary-judgment evidence indicates the existence of a genuine issue of material fact on the question of pretext because Defendant's legitimate, nondiscriminatory reasons are demonstrably false.
1. Mr. Hensley
In hopes of fending off Defendant's summary-judgment motion, Plaintiffs have presented evidence they believe shows that Mr. Hensley is better qualified than other persons who were made production supervisors since January 5, 1996. This evidence, they maintain, disproves the legitimate, nondiscriminatory reason offered by Defendant and thus creates a fact issue on the issue of unlawful discrimination.
The Fifth Circuit has held that "a plaintiff may survive summary judgment and take his case to the jury by providing evidence that he was `clearly better qualified' than the employee selected for the position at issue." Celestine v. Petroleos de Venezuela, S.A., 266 F.3d 343, 357-58 (5th Cir. 2001) (quoting Scott v. Univ. of Miss., 148 F.3d 493, 513 (5th Cir. 1998), overruled on other grounds, Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)). The Fifth Circuit has also stated that "differences in qualifications are generally not probative of discrimination unless those disparities are `of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'" Id. at 357 (quoting Deines v. Dept. of Prot. Reg. Svcs., 164 F.3d 277, 280-81 (5th Cir. 1999)). If the evidence presented by the plaintiff reveals disparities that do not satisfy this standard, then the plaintiff has "created only a weak issue of fact as to whether the employer's reason was untrue." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). If it is also the case that "there [is] abundant and uncontroverted evidence that no discrimination . . . occurred," then "no rational factfinder could conclude that the action was discriminatory." Id. Otherwise, "sufficient evidence to find that the employer's asserted justification is false," combined with the plaintiffs prima facie case, can demonstrate the existence of a genuine issue of material fact. See id.
There are two primary ways that a person in Mr. Hensley's position can be promoted to a salaried supervisory position. Under the traditional method, an hourly employee works as a per diem supervisor until such time as he is moved to the ranks of salaried supervisor. An hourly employee initiates this process by informing his group leader of his interest in the position of per diem supervisor. Alternatively, an hourly employee may drop off an application at the Staffing Office. Before 1999, those applications were considered locally; since then they are forwarded to the Talent Acquisition Center ("TAC") in Detroit.
The summary-judgment evidence suggests that Defendant does not consider it a `promotion' to be moved from the ranks of the hourly wage earner to those of salaried personnel. Assuming that the move is only a hiring decision, rather than a promotion decision, the analysis remains the same because the legitimate nondiscriminatory reason remains the same.
Defendant also hires supervisors from outside the ranks of its hourly workforce. Some supervisors are selected via the Opportunity Awareness Program. The GAP, as it is called, is open only to current salaried personnel. Some supervisors are hired through a College Intern program, which is open only to college students. Finally, nonemployees can secure supervisory positions by applying through the TAC. Nothing in the summary-judgment record indicates that different qualifications apply for current hourly employees as opposed to other persons seeking to become production supervisors.
Before 1999, the minimum qualifications for salaried production-supervisor positions at GM were: "knowledge of manufacturing processes and procedures; knowledge of basic math; oral and written communications skills; an understanding of basic technology where assigned; knowledge of scheduling and other management systems; a relatively high level of analytical ability where problems are complex; a medium level of interpersonal skills to work effectively with others, motivate employees and elicit work output; and . . . knowledge of quality control procedures." See Aff. of Rich, Def's App., Ex. C ¶ 12. Since 1999, a candidate's oral and written communications skills, analytical ability, and interpersonal skills must be "high." Id. ¶ 13. No other qualification has changed. Id. A high school diploma or the equivalent is necessary but a college degree is not, although preference is given to candidates with a degree in operations or industrial technology, production manufacturing or engineering management, business administration, industrial arts, or engineering. Id. ¶¶ 14 15. Neither seniority nor length of service is a factor in the selection of salaried production management positions. Id. ¶ 11.
Donald Hensley graduated from Southern University in Baton Rouge, Louisiana, in 1975 with a degree in liberal arts. Aff. of Hensley ¶ 2. GM hired Mr. Hensley as an assembler in the Trim Department in 1977. Id. ¶ 4. Since then he has worked as a spot welder in the Body Shop Department, and an assembler, relief person, and team leader in the Chassis Department. Id. He has completed numerous training courses at GM, in areas ranging from Safety Training to Advanced Computer Awareness to Plant Layout and Product Information. Id. ¶ 2. Most recently he completed a team leader course. Id. He has served as a team leader since 1996, although he is currently a nonfunctioning team leader.
A nonfunctioning team leader is someone who is qualified to be a team leader but who does not currently lead a team.
Mr. Hensley participated in two assessments of his fitness for management in the 1980s. Depo. of Hensley at 53, line 18. He never heard anything about the results of his first assessment, but was told that he "did terrible on [the second]." Id. at 55, lines 11-13. According to Ernest Twine, who supervised Mr. Hensley for about eighteen months, Mr. Hensley "was a great worker." Depo. of Twine at 35, line 24. When asked if he thought Mr. Hensley "had the qualifications to be a first-line supervisor," Mr. Twine hesitated, spoke kindly of Mr. Hensley, but stopped short of saying unequivocally that Mr. Hensley was up to what Mr. Twine considers "one of the toughest jobs out there at any production plant." Id. at 36, line 15 through 37, line 2.
Mr. Twine, an African American, recently became a supervisor at GM. His testimony reads as follows:
Q. Based on your working experience with Mr. Hensley, do you think he had the qualifications to be a first-line supervisor?
A. I don't know. I wouldn't basically voice my opinion on that because, you know, if things are done correctly, you know, performance, the supervisor training school, he's got production skills. He's been on the line for I don't know how many years, and that's an attribute, you know. But as far as he [sic] naming of people and getting along with people and motivating people, I don't know.
Q. Okay. Do you think he has adequate communication skills to be a first-line supervisor?
A. I don't know. . . . I know he's a good person. He did his job. I never did have a problem with him doing his job. He knew what his responsibilities were.
Q. Okay. Did he ever demonstrate to you or did you ever have the opportunity to observe his knowledge of the manufacturing process beyond his specific job that he did while he was working with you?
A. No. I never did have a chance to observe that. Don, like I say, he was a quiet person. One of the quietest people I have known. He pretty much kept to himself quite a bit a talked low, and he never was a loud voice. He's a quiet person and I respect him for that.
Q. Quiet person who works hard and not a troublemaker?
A. Not a troublemaker. Did his job every day, there every day.
Q. Tried to follow the rules?
A. He did.
Depo. of Twine at 36, line 18 through 37, line 23.
In its Brief supporting the Motion for Summary Judgment, Defendant discusses the qualifications of thirteen individuals previously identified by Mr. Hensley as people he believes are less qualified for a supervisory position than he. With the exception of Donna J. Bennett Howard, Plaintiffs provide no summary-judgment evidence with respect to these hiring decisions, and thus raise no fact issue as to the relative qualifications of Mr. Hensley. As for Ms. Howard, the record shows that she first joined GM in 1985 and was recalled from a three-year layoff in 1992. At GM, she installed parts and performed wire routing and spot welding. She also served as an absentee replacement, driver, and repair person. She attended various training courses. In July 1997 she graduated magna cum laude from Northwood University. She was promoted from hourly to a salaried position in November 1998. The summary-judgment evidence does not speak to her other qualifications. The Court cannot say that Mr. Hensley was, as a matter of law, clearly better qualified than Ms. Howard. Plaintiff cannot raise an inference of discrimination by casting doubt on Defendant's reason for promoting Ms. Howard.
In their Response to the Motion for Summary Judgment, Plaintiffs identify twenty persons who, it is asserted, do not possess greater qualifications than Mr. Hensley yet were hired as supervisors. Mr. Hensley has never before complained about Defendant's decision to make these persons supervisors. For this reason, Defendant urges the Court not to consider any evidence concerning their qualifications. Def.'s Reply at 6 (citing Johnson v. G.A.T.X Logistics, Inc., No. 00 C 3265, 2001 U.S. Dist. LEXIS 20395, at *8 (N.D. Ill. Dec. 6, 2001)). The Court declines to adopt the blunt rule urged by G.A.T.X. In G.A.T.X., the plaintiff attempted to establish pretext by pointing to employees in nonprotected classes who were treated more favorably under similar circumstances. She named one such person in her pleadings but mentioned another person in her response to a motion for summary judgment. The court held that this evidence of pretext was to be excluded because plaintiffs are generally not allowed to bring claims in a lawsuit that were not included in the EEOC charge. Id. at *3 (citing Karella v. Ameritech Info. Sys., Inc., 953 F. Supp. 945, 950 (N.D. Ill. 1996), in turn citing Cheek v. W S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). G.A.T.X goes too far. Adducing evidence of pretext uncovered only after the filing of a lawsuit is not the same as asserting a new claim. While it is true that a plaintiff cannot amend his complaint simply by introducing evidence of other purportedly discriminatory acts, such evidence remains relevant so long as it is probative of the discrimination alleged in the complaint.
The Court does not understand Mr. Hensley to be asserting new claims of discrimination to be redressed in this present suit; indeed, Mr. Hensley has not moved for leave to amend his Complaint. Rather, it appears that Plaintiffs are trying to cast doubt on the legitimate, nondiscriminatory reason given for the adverse promotion decisions contested in this suit by showing that, in other similar situations, Defendant preferred a candidate clearly less qualified than Mr. Hensley. In other words, if an inference of discrimination can be drawn from a later decision not to promote Mr. Hensley, the truthfulness of the legitimate, nondiscriminatory reason given for the earlier failure to promote may become suspect and an inference of discrimination may arise there as well. The Court thus examines the other hiring decisions affecting Plaintiff to determine whether Defendant's later acts could be probative of discrimination with respect to the current claims.
The Court has reviewed the credentials of each person identified by Plaintiffs as less qualified than Mr. Hensley. With respect to all but a handful of these employment decisions, Plaintiffs have failed to raise an inference of discrimination by showing that the Mr. Hensley was clearly better qualified than the person made a supervisor — that is, few of the employment decisions appear utterly unreasonable. The Court limits its discussion to the persons singled out by Plaintiffs.
David Hurd, who was hired by GM in 1972, was promoted from hourly status to production supervisor in October 1997. He did not attend college. The summary-judgment evidence does not speak to his other qualifications.
Shawn Elledge was hired as a group leader in May 2000. His resume indicates that he has completed one year of college. Before joining GM, he had about six months' experience as a shipping supervisor at Mackie Automotive Systems, leading a team of sixteen shipping employees. Mr. Elledge spent about six months as a production-floor supervisor, directing high-volume production on three assembly lines. He also had experience reducing scrap and defects. Mr. Elledge served four years in the United States Air Force, including combat service in Bosnia, and was decorated eleven times. The summary-judgment evidence does not speak to his other qualifications.
Mr. Rich testified that "group leader" is another term for production supervisor.
Bob Shaver completed two-and-a-half years of college. He became a supervisor in training at GM in September 2000. For about four years he worked as an ironworker and millwright for Trinity Contractors, assigned to the GM Assembly Plant in Arlington, Texas. His responsibilities primarily involved installation of machinery. Before that he worked sporadically as an electrician's helper, journeyman ironworker, boilermaker, and sales consultant. Mr. Shaver worked as site supervisor at a manufacturing company for six years and as a steel erection foreman for seven years. The summary-judgment evidence does not speak to his other qualifications.
Greg Daniel became a group leader in November 2000. He has an associate's degree in business management. Prior to joining GM, Mr. Daniel was Maintenance Superintendent at Moores Funeral Home and Cemetery, where he scheduled a twelve-man crew, worked with a half-million-dollar annual budget, and repaired concrete, foundation, and masonry. Other jobs include marketing new products to Kroger's grocery stores and running a small ceramics and gifts business. The summary-judgment evidence does not speak to his other qualifications.
Brian Bowman holds a Bachelor's degree with majors in political science and English. Before hiring on at GM, he worked as a fund raiser at the University of Texas Health Center and the Trinity Mother Frances Health Care System for almost two years. For four years prior to that, he was an aide to Texas Senator David Cain. His interview scores were mixed but above average. He was hired as a supervisor-in-training in February 2000. The summary-judgment evidence does not speak to his other qualifications.
The evidence suggests that Plaintiff might be better qualified than either Mr. Daniel or Mr. Bowman. However, the evidence does not show that no reasonable person, in the exercise of impartial judgment, would hire any of these persons rather than Mr. Hensley. As to these employment decisions, there is a weak fact issue concerning the truthfulness of Defendant's reason for not promoting Mr. Hensley instead of Mr. Daniel or Mr. Bowman. This evidence, by itself, would not support an inference of unlawful discrimination in claims based on those employment decisions. It is thus plain that this evidence likewise provides no basis for inferring discrimination with respect to Defendant's decision to promote Ms. Howard rather than Mr. Hensley.
To summarize, Mr. Hensley cannot demonstrate that he was "clearly better qualified" than the person actually hired or promoted and cannot cast doubt on Defendant's legitimate nondiscriminatory reason by showing that he was later passed over in favor of clearly less qualified persons.
2. Mr. Richards
Mr. Richards has presented the Court a prima facie case of discrimination with respect to the employment decisions that made Gayla Miller Smith, John Barry, and "Greg" supervisors. Defendant has articulated different legitimate, nondiscriminatory reasons with respect to each of these decisions.
Defendant maintains that Ms. Smith "transferred from a salaried position in production back to a supervisory position in the material department." Def.'s Br. at 17 (Fact ¶ 92). Plaintiffs present no evidence to suggest that this reason is untrue. In fact, Mr. Richards stated in his deposition that "she would have dibs" on "any supervisory position in the material department" because she was "already salaried." Richards Depo. at 148, line 23 through 149, line 3 ("Right. . . . [I]t would have been a lateral move versus me coming in."). Plaintiffs do not present any evidence from which to conclude that Mr. Richards is more qualified than Ms. Smith, notwithstanding her status as a salaried employee.
Defendant gives the following legitimate, nondiscriminatory reason for making Mr Barry a supervisor: he "was already a supervisor on leave of absence at the GM Kansas City/Fairfax facility prior to transferring to Arlington as a supervisor in the material department in early 1998." Def.'s Br. at 17 (Fact ¶ 94). Mr. Barry apparently replaced Bill Reed, who retired. The opening left by Mr. Reed's retirement was not posted at the plant, and Mr. Richards, who had made his interest in returning to a supervisory position known to Al Corpus and Patti Beard on numerous occasions, did not learn of the opening until Mr. Barry arrived at Arlington. Ms. Beard told Mr. Richards that Mr. Barry came to Arlington as part of a "package deal" made with his wife. Plaintiffs present no evidence to suggest that the reason given by Defendant is untrue. Nor do they present evidence to suggest that Mr. Barry is less qualified than Mr. Richards for the position.
Finally, Defendant challenges the very existence of the man named "Greg," who allegedly became a supervisor in the materials department in 1997. Plaintiffs offer no evidence other than Mr. Richards' deposition testimony to suggest that a person named "Greg" (or anyone with a name similar to "Greg") was made a supervisor in 1997 or was ever made a supervisor in the materials department at a time when Mr. Richards desired to return to the ranks of salaried personnel.
Plaintiffs have not presented evidence that would raise an inference of discrimination based on the untruthfulness of the legitimate, nondiscriminatory reasons given by Defendant for not promoting Mr. Richards.
3. Other Evidence of Pretext
Plaintiffs present several other theories of pretext. First, they argue that the following proof of pretext raises a fact question concerning discrimination: (i) Defendant maintains that "one of the primary ways hourly workers can demonstrate management skills is through assignment as a Per Diem Supervisor;" (ii) hourly employees "apply" for per diem positions by expressing interest to their supervisor; and (iii) nonminority candidates are regularly chosen for this position instead of Mr. Hensley despite his repeated requests to be made a per diem supervisor. Plaintiffs' argument is circular: Defendant's reason for not hiring Mr. Hensley is pretext because Defendant didn't hire Mr. Hensley. Plaintiffs have asked the Court to consider evidence that they believe demonstrates that Mr. Hensley was better qualified than persons selected for per diem positions as well as supervisor-in-training and production-supervisor positions. The Court believes that any evidence of pretext on this matter has been adequately addressed above.
Plaintiffs next suggest that the Defendant's actual hiring practices run counter to its articulated theory of hiring, as expressed in the job qualifications. To put it colloquially, because Defendant does not practice what it preaches with respect to job qualifications, its reason for not promoting Plaintiffs can be considered pretextual. Specifically, Plaintiffs note that Defendant does not require a candidate to hold a college degree for that person to be eligible for an entry-level supervisory position. Plaintiffs point out that Larry Pollack and Donna Howard were promoted or hired shortly after receiving college degrees, and Mr. Rich testified that a college degree can be an invaluable asset. Indeed, Defendant prefers college graduates, even if it does not limit the field to college graduates. Plaintiffs' argument does not persuade the Court that an inference of pretext is raised by the mere fact that Defendant promoted two hourly employees shortly after they completed college degrees.
Given that Mr. Hensley had a college degree when he joined GM, Plaintiffs interpret the timing of these promotions to suggest that something else is behind Defendant's refusal to promote Plaintiffs. But this inference amounts to nothing more than speculation. It does not augment Plaintiffs' contention that a fact question exists.
It is also argued that evidence of pretext can be found in Defendant's decision to change its hiring practices in 1999. Prior to 1999, hiring decisions for supervisor positions were made locally; after that date, the decisions were made by the Talent Acquisition Center in Detroit. Plaintiffs imply that this decision was motivated by their complaints about GM's hiring practices. Plaintiffs have presented nothing but speculation to support this theory, and the summary-judgment evidence indicates that the decision to transfer the decision-making authority was based on other factors. This fact does not strengthen Plaintiffs' claim of pretext.
Plaintiffs further intimate that Defendant is inconsistent in its implementation of the new application procedures. According to Plaintiffs, Mr. Elledge did not apply for his position via the GM Web site, or by phoning an 800 number, or by submitting an application to the TAC. Rather, Mr. Elledge submitted the application directly to the Arlington plant. Mr. Rich testified that it is the customary practice to forward to the TAC any application submitted directly to the staffing office. This circumstance provides the Court no reason to give any greater credence to Plaintiffs' claim of pretext.
Another reason offered in support of Plaintiffs' claim of pretext is the current practice at GM's Arlington plant to hire supervisors from the ranks of contract personnel. As corroboration of their claim that something is amiss, Plaintiffs point to Mr. Rich's admission that Defendant does not track the number of minorities hired from contract supervisor positions. Plainly, hiring from the ranks of contract personnel the kind of practice that could, under the proper circumstances, form the basis of a disparate-impact suit. But Plaintiffs have alleged a traditional disparate-treatment claim, and their burden is to present evidence that can support an inference of unlawful discrimination against Mr. Hensley or Mr. Richards. Disparate impact is a theory that allows a factfinder to infer discrimination based on a policy's impact on a protected group, and its methods of proof require more than mere speculation. Plaintiffs have presented this Court nothing more than insinuations that something unlawful underlies the current practice. The simple fact that Defendant hires supervisors from the ranks of contract labor and does not keep track of minority hires therefrom, without more, provides no basis for concluding that Defendant's legitimate, nondiscriminatory reason for not promoting Plaintiffs is pretextual.
Plaintiffs suggest that their claims of pretext are bolstered by inconsistent application of the testing requirement. The summary-judgment evidence shows that both plaintiffs were required to take a test as a prerequisite to becoming a supervisor. "Nothing in the files produced [by Defendant] indicates that Tanya Hahn, Amy Arthur, Andrew Lendingham or Jeffrey Barnes ever took a situational judgment or basic math test before being hired as First Line Supervisors." Resp. at 24. The Court would be more inclined to find evidence of pretext were it not for the fact that Defendant required Yvonne Beck, a white woman, to take this very test. Furthermore, Plaintiffs have failed to explain how the summary-judgment evidence supports their claim that these people were not required to take the test. These facts do not support Plaintiffs' claim of pretext.
4. Defendant's Statistical Evidence
Defendants have presented uncontroverted evidence that African-Americans are adequately represented among supervisory personnel at the Arlington plant. Though African-Americans make up only 10.5 percent of the population over 18 years of age in the Fort Worth/Arlington area, about one-third of the total hourly workforce at Defendant's Arlington assembly plant is African American. Def's App., Ex. F Ex. C. ¶ 4. About 20.8 percent of the facility's total salaried workforce is African American. Id. Ex. C ¶ 5. Eight of the seventeen hourly employees "promoted" to fill salaried production and manufacturing management positions since January 1, 1996, are African American. Id., Ex. R, Nos. 20, 21. of the sixty-four supervisors hired from outside GM since January 1, 1996, eleven (or 17%) are African American. Id., Nos. 22, 23, 24. About 41% of the employees acting as per diem supervisors since January 1, 1996, are African American. Id., Ex. C ¶ 16. Defendant also avers that it "maintains and abides by" an affirmative action program. Id. ¶ 6.
"A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978). This is because "the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the work force." Id. Yet proof of a racially balance workforce is "not wholly irrelevant." Id. at 580. When a plaintiff seeks to demonstrate pretext, he is attempting to raise an inference as to the ultimate question of discriminatory intent. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). A district court is "entitled to consider the racial mix of the work force when trying to make the determination as to motivation." Furnco, 438 U.S. at 580 (emphasis original). Statistical evidence of a racially balanced workforce may well constitute "independent evidence that no discrimination has occurred." Reeves, 530 U.S. at 148.
Defendant's uncontroverted statistical evidence tends to support its contention that no discrimination occurred. So too the fact that Defendant "maintains and abides by an affirmative action program at all of its facilities, including Arlington." Def.'s App., Ex. C ¶ 6. The Court is mindful of the Supreme Court's admonition that statistical evidence alone is insufficient "to conclusively demonstrate that [a defendant's] actions were not discriminatorily motivated." Furnco, 438 U.S. at 148 (emphasis original). But where the plaintiff has raised a weak prima facie case and the evidence offered in support of pretext is of dubious probative value, uncontroverted statistical evidence of racially balanced hiring and promotion practices can support a court's conclusion that no genuine issue of material fact exists in a particular case.
* * * * *
Plaintiffs have failed to present evidence of pretext with respect to the hiring decisions affecting Mr. Hensley and Mr. Richards. None of the additional evidence cited by Plaintiffs as proof of pretext withstands scrutiny. There is substantial statistical evidence of a racially balanced workforce. The evidence fails to raise a fact issue on the question of discriminatory intent. The Motion for Summary Judgment is GRANTED with respect to Plaintiffs' discrimination claims.
VII. Retaliation
Defendant also moves for summary judgment in its favor with respect to the retaliation claims asserted by Plaintiffs. To establish a prima facie case of retaliation, plaintiffs must show that (1) they engaged in protected activity; (2) they were subjected to an adverse employment action; and (3) there was some causal connection between the protected activity and the adverse action. Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). To prevail, the plaintiff must show that "but for the protected activity he would not have been subject to the action which he claims." Id. at 267. If the plaintiff can make out a prima facie case of retaliation, a defendant may offer a legitimate reason for the adverse employment action. Id. The plaintiff must then adduce evidence that the proffered reason is pretextual. Id.
In its brief in support of the Motion for Summary Judgment, Defendant points the Court to the lack of any evidence in the record of an adverse employment action taken against Hensley as a result of his filing an EEOC charge. In its Reply, Defendant notes that "Plaintiffs make no reference to their retaliation claim in their [Response] . . ." and urges the Court to treat the claim as abandoned.
Plaintiffs have not objected to Defendant's suggestion that they have given up their retaliation claim; they have not so much as moved this Court to allow supplemental briefing on this issue. The Court accepts Defendant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1999). The Court GRANTS summary judgment on the retaliation claims.
VIII. Conclusion
To summarize, the Court DISMISSES the claims of Wanda Evans, Nettie Elliott, and Patsi Patterson. Summary judgment is GRANTED as to all remaining claims of Mr. Hensley and Mr. Richards.