Opinion
Civil Action No.: 3:00-CV-2678
August 14, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Bill L. Lacy, Sr. ("Lacy") has asserted claims against ADP, Inc. ("ADP") and Automatic Data Processor for violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Texas Commission on Human Rights Act ("TCHRA"). ADP has filed a counterclaim against Lacy for conversion and breach of duty of loyalty. Now before this Court is ADP's Motion for Partial Summary Judgment, filed July 18, 2001. For the reasons stated below, Defendant's motion is GRANTED IN PART and DENIED IN PART. The Plaintiffs claims under Title VII and the THCRA are DISMISSED WITH PREJUDICE, and the Defendant's crossclaims are DISMISSED WITHOUT PREJUDICE.
Although Lacy named Automatic Data Processor as a defendant, such entity does not exist and has not been served with process.
I. BACKGROUND FACTS
Lacy began work with ADP on June 21, 1999 as the lead maintenance technician. He was hired to this position by the Maintenance Department Supervisor, David Graham. As part of his employment application, Lacy agreed to abide by ADP's Code of Corporate Responsibility ("the Code") and acknowledged that any violation of the Code could result in immediate termination. The Code specifically forbids the taking of ADP property for personal use. Maintenance employees, however, can borrow company tools and supplies for their personal use so long as they are promptly returned in the same condition as when they were removed from the premises. After he began work with ADP, Lacy received a copy of the Code and signed a statement saying that he would be accountable for complying with the regulations contained therein.
Several ADP maintenance employees, including Lacy, received authorization to make charges at Elliott's Hardware in Dallas, Texas for supplies and equipment required in the course of their jobs with ADP. These employees were required to submit receipts to Graham on the date of purchase. In June 2000, Lacy submitted several receipts for purchases made over the prior three weeks. Graham reviewed these records and noticed that Lacy had purchased items that ADP maintenance personnel do not use in the course of regular maintenance operations. Among these items were a twelve ounce can of 134A refrigerant ("Freon").
Graham and David Sherwood ("Sherwood"), a Facility Supervisor, met with Lacy on June 15, 2000 to discuss these purchases. Lacy admitted that he had used Freon from the maintenance shop to put in his car's air conditioning system. Graham then notified Lacy that this conduct was stealing. Lacy then admitted that he had purchased replacement Freon on ADP's expense account to replace the Freon he had taken. Graham allowed Lacy to produce the Freon in an effort to save his position. Lacy did not do so, and Graham terminated him for charging Freon to ADP's expense account when it was not for ADP's use and benefit, but rather to replace supplies that Lacy had taken for personal use without permission.
Following Lacy's termination for violation of ADP policies, the company came to believe that he had also misappropriated other supplies including an oil charge, an air conditioner recharge kit, a pipe wrench, a straw hat, and inflating sports needles. Lacy contends that he left these items on the premises after his termination.
A week before Lacy's termination, ADP hired David Sherwood ("Sherwood"), a white male with roughly the same skills as Lacy, as a maintenance technician. Lacy contends that Sherwood was his replacement. Additionally, Lacy alleges that other maintenance employees used company supplies for their personal use and did not return the products to ADP. He does not believe, however, that management caught them engaged in such acts and there is no evidence that the alleged acts were ever investigated.
II. LEGAL ANALYSIS
A. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n. of Am., 114 F.3d 557, 559 (5th Cir. 1997). An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Walker v. Sears. Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988);Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). In addition, when both parties have submitted contradictory evidence, factual controversies are resolved in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See id. at 324; Anderson, 477 U.S. at 256-57. Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Celotex, 477 U.S. at 322.
B. TITLE VII AND THE TCHRA
1. Prima Facie Case
Because the elements of Title VII and TCHRA claims are identical, the analysis set forth in McDonnell Douglas applies to both sets of claims. See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 180 (5th Cir. 1996); See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 et seq. (1973). To establish a prima facie case of discrimination under McDonnell Douglas, a plaintiff must show (1) that he belongs to a racial minority; (2) that he was qualified for the position; (3) that despite these qualifications he was terminated; (4) that he was replaced by someone outside the protected class. Green, 411 U.S. at 802; Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 512-13 (5th Cir. 2001).
As an African-American, Lacy falls within a protected group and thereby satisfies the first part of the prima facie test. See Okove, 245 F.3d at 513. However, Lacy and ADP dispute that Lacy was qualified for the job. ADP argues that Lacy violated the Code of Conduct and therefore was unqualified, while Lacy argues that he qualified at all times. Based on the lack of severity of the alleged theft, there is a genuine question whether the incident rendered him unqualified for his job. Therefore Lacy satisfies the second prong. Next, it is undisputed that he was discharged as required by the third factor. Lastly, viewing the facts in the light most favorable to Lacy suggests that Vaganski, who is not African-American, assumed some degree of the responsibility associated with Lacy's prior position. Therefore, Lacy satisfies the fourth prong of the prima facie case.
2. Legitimate, Nondiscriminatory Reasons for Lacy's Discharge
Once a plaintiff satisfies the initial prima facie case, the burden of production shifts to the defendant to produce a legitimate, nondiscriminatory justification for its actions. Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001). If the defendant articulates a reason, which if believed would support a finding that the termination was nondiscriminatory, the mandatory inference of discrimination created by the plaintiffs prima facie case dissolves.Id.
ADP contends that Lacy was fired because he admitted to charging items to ADP's expense account to replace company items that he had used for his own personal benefit. The ADP Code of Corporate Responsibility prohibits such a taking of ADP property and provides that a violation can lead to termination. The company followed the protocol set forth in the Code, and therefore ADP has provided a legitimate, nondiscriminatory reason for Lacy's termination.
3. Pretext
The inquiry, however, does not end after the employer articulates a legitimate reason for the termination. The plaintiff must then be afforded a fair opportunity to show that the petitioner's stated reason for the termination was in fact a pretext for discrimination.See Evans, 246 F.3d at 350. Especially relevant to this showing would be evidence that white employees caught engaging in similar activities were retained or rehired. Accord id. Although an employer may justifiably refuse to rehire an employee engaged in unlawful activity, such criterion must be uniformly applied across racial lines. See id. If the evidence taken as a whole does not create a fact issue as to whether the employer's stated reason was the actual reason for termination and there is no reasonable inference that race was a determinative factor in the employment decision, then the employee has not met his burden of proof. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994(5th Cir. 1996).
Lacy maintains a subjective belief that he was fired because he was black. However, his own good faith belief that race motivated his employer's action is insufficient evidence. See Little v. Republic Refining Co., LTD., 924 F.2d 93, 96 (5th Cir. 1991). Moreover, Lacy is unable to produce any examples of discriminatory treatment while working at ADP. For example, he conceded that he cannot remember any jokes or comments about his race and was never called any derogatory or racially motivated name. The Court cannot use Lacy's subjective belief of discrimination, however genuine, to be the basis of judicial relief and therefore this claim of pretext fails. Id.
Lacy also argues that he believes his firing was racially motivated because it was harsh, and he never received a written or verbal warning. Pretext, however, cannot be established merely by arguing the Acceptable Conduct policy was too harsh.Bowen v. Federal Express Corp., 2000 WL 146634, *7 (N.D.Tex. 2000). The plaintiff must demonstrate that the employer intentionally discriminated against him with evidence showing that employees outside of the protected class who were similarly situated as the plaintiff had not been terminated. Smith v. Wal-Mart Stores, 891 F.2d 1170, 1180 (5th Cir. 1990). The question is not whether the employer made an erroneous decision; it is whether the decision was made with discriminatory motive. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
The evidence Lacy has produced fails to show that another employee in a similar situation was not terminated for the same activity. He alleges that two other white employees used company supplies on their cars, but admits that management did not catch these employees in such activity nor did these employees admit their unlawful conduct, as Lacy did. Therefore, the other employees are not similarly situated to Lacy. See Smith, 891 F.2d at 1180 (holding that employees who violated different company policies were not similarly situated).
Lacy also argues that other employees borrowed company tools for their personal benefit. ADP policy, however, permitted such uses of company property while it did not authorize employees to take and keep company property without permission and without possibility of return. Thus, ADP clearly distinguished between borrowing and taking/stealing. In this instance, Lacy did not borrow the Freon in question with an intention to return it. He instead took a can of Freon and used it in his personal automobile. Once Lacy had installed the Freon, it could no longer be returned, and rather than replacing the supplies with his own money, he used company funds to replace depleted stock. Although, Lacy claims that he merely replaced depleted stock, the stock was only depleted because he had used the Freon for his personal benefit. These circumstances are not analogous to the borrowing of a few tools which are promptly returned in the same condition. Although there may be disparate treatment, the circumstances are not nearly identical. Therefore, Lacy fails to show that he has received disparate treatment under nearly identical circumstances. See id.
The decision to terminate over a petty theft may be an unfair business decision, but Title VII protects only against decisions motivated by unlawful animus. Turner v. Texas Instruments. Inc., 555 F.2d 1251, 1257 (5th Cir. 1977). Furthermore, Title VII does not compel an employer to absolve an employee who has engaged in unlawful activity against it. Green, 411 U.S. at 803. Lacy has not provided evidence that this decision, however unfair, was motivated by unlawful animus, and therefore his pretext contention fails. Moreover, Graham both hired and fired Lacy for his position with ADP. This situation gives rise to an inference of non-discrimination because it is unlikely that a supervisor "would hire workers from a group one dislikes . . . only to fire them once they are on the job." Brown v. CSC Logic. Inc., 82 F.3d 651, 658 (5th Cir. 1996).
After consideration of the totality of the factors presented by Lacy, the Court concludes that he has failed to present competent summary judgment evidence that his race was a motivating reason to terminate him. Therefore, he has not raised a genuine issue of material fact sufficient to withstand summary judgment on his discrimination claims. See Nieto v. LH Packing Co., 108 F.3d 621, 624 (5th Cir. 1997).
C. Pendent State Law Claims
ADP has brought counterclaims of conversion and breach of duty of loyalty, Texas common law torts which are before this court via supplemental jurisdiction. Under 28 United States Code section 1367, a district court has broad discretion to decline to exercise supplemental jurisdiction over pendent state claims if it has dismissed all claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Relevant factors to consider in the exercise of the court's discretion include judicial economy, convenience, fairness to litigants, and comity. See United Mine Workers, 383 U.S. at 726. The Supreme Court has held that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988).
In this case, the factors weigh in favor of dismissing the remaining state law claims. Because both parties are Texas residents, the interests of comity dictate that Texas' interest in this case is greater than that of the federal judiciary now that there are no federal issues involved. Furthermore, the interests of judicial economy discourage the Court from entertaining claims such as these where a trivial amount is sought in recovery. For these reasons, the counterclaims in this case are DISMISSED WITHOUT PREJUDICE and the Motion for Partial Summary Judgment is DENIED as it pertains to Lacy's conversion of ADP property.
III. CONCLUSION
For the aforementioned reasons, ADP's Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART. Plaintiffs Title VII and THCRA claims are DISMISSED WITH PREJUDICE, and Defendant's state law counterclaims are DISMISSED WITHOUT PREJUDICE.