Opinion
CIVIL ACTION NO. 3:02-CV-0426-K
January 30, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment. Having considered the merits of the motion, and for the reasons stated herein, the motion is GRANTED.
I. Background
Darrell Lyons ("Lyons"), Jerry Johnson ("Johnson"), Joe Bell ("Bell"), and Greg Westmoreland ("Westmoreland") (collectively, "Plaintiffs") allege that Burlington Coat Factory Warehouse Corporation, Burlington Coat Factory Warehouse of Redbird, Inc. ("Redbird"), Burlington Coat Factory Warehouse of Euless, Inc. ("Euless"), Burlington Coat Factory of Grapevine, Inc. ("Grapevine"), and Burlington Coat Factory Warehouse of Fort Worth, Inc. ("Ft. Worth") (collectively, "Burlington") have a policy and practice of discriminating against its employees based on race. The Plaintiffs bring multiple claims against Burlington.
A. Darrell Lyons
Lyons initially worked as a store manager at Red Bird in February of 1998, at a salary of $44,012.80 per year. In May of 1999, Lyons was transferred to Mesquite, though the parties disagree as to whether Lyons or Burlington initiated the transfer. In January of 2000, Burlington gave Lyons an overall rating of 1.5 out of 3.0 on his performance review. Lyons was subsequently sent back to Red Bird in November of 2000.
On February 8, 2001, Lyons filed a charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Burlington discriminated against him on the basis of his race. Lyons alleged that (1) Burlington demoted him when it sent him back to Red Bird from Mesquite, (2) Burlington did not pay him the same wages as its white store managers, and (3) Burlington did not give Lyons a salary increase at the beginning of 2001 because of a poor evaluation he received in December of 2000.
Lyons amended his EEOC charge on April 30, 2001, alleging that (1) Burlington failed to promote him to another store or transfer him back to Mesquite; (2) he had been relegated to a store with a predominately African-American clientele and denied the opportunity to work at stores with more diverse customer bases; and (3) he had been subjected to a "special audit" of his work.
Finally, Lyons claims that after he filed his EEOC charges, Burlington retaliated against him by not considering him for managerial openings at the Webb Chapel store ("Webb Chapel") in Dallas in the fall of 2001, the Piano store in 2002, the Mesquite in June of 2002, and for not promoting him to district manager in the summer of 2002
B. Jerry Johnson
In August of 1999, the manager of Webb Chapel hired Johnson to work as the manager of its shoe department at a salary of $28,500 per year. The facts show that at that salary, Johnson became the highest paid shoe manager of a Burlington store in the area. In August of 2000, Johnson sought promotion to the position of operations manager of the Webb Chapel store, expressing his interest verbally and through a letter to the district manager.
Johnson received pay raises of forty cents per hour in January 2000, fifty cents per hour in May of 2000, and fifty cents per hour in January of 2001. Despite these raises, Johnson alleges that as of January of 2001, he was only the third highest paid shoe manager in the area.
Johnson filed a charge of race discrimination with the EEOC on or about April 30, 2001, alleging that Burlington discriminated against him on the basis of his race by (1) not compensating him or promoting him for successfully performing the functions of a defacto store manager; (2) he was not promoted to operations manager of Webb Chapel in 2000; (3) he was not promoted to store manager of Webb Chapel in July of 2000; and (4) he was paid less than shoe department managers which were white. Johnson's employment was terminated in November of 2001.
Johnson also alleges that Burlington retaliated against him for filing his EEOC charge by not promoting him to operations manager of Burlington in November of 2001 and terminating his employment of 2001. Burlington says that it terminated Johnson due to missing funds from his cash register and because he executed non-consecutive voids of sales without a customer receipt. Johnson alleges that he was terminated because he chose to exercise his right to file a charge of discrimination based on his race.
C. Joe Bell
Bell began working as the coat department manager at Red Bird in October of 1993, and held that position through March of 1996. In March of 1996, Bell left Burlington to work for another retailer full-time, but remained with Burlington in a part-time capacity.
Bell returned to Burlington full-time in the Summer of 1998 as the merchandising manager at the Arlington store, and the facts show that his salary of $32,000 was the same amount he was making with his previous employer when he decided to return to Burlington. Bell worked as merchandising manager from August of 1998 through November of 2000, and alleges that he was paid in the middle of the pay scale for merchandising managers in the district. Bell received pay raises of fifty cents per hour in January of 1999 and one dollar per hour in January of 2000.
In May of 1999, a new store manager was hired at the Arlington store, despite the fact that Bell had expressed an interest in taking over as store manager. Bell states that he was not hired as store manager because Burlington wanted to hire a Middle Eastern person to fill the vacancy, as the Arlington store had a large Middle-Eastern base. Bell states that before the new Arlington store manager arrived, he worked as acting store manager.
Bell states that he and the new store manager did not get along with each other well, so he requested a transfer. Bell was transferred to Red Bird in November of 1999. Soon after Bell arrived at Red Bird, the store manager position opened up, and Bell states that although he expressed interest in becoming store manager of Red Bird, he was denied. Bell states that he worked as acting store manager at Red Bird for a significant portion of 2000, as there was significant turnover of the store managers at Red Bird. Bell resigned from Burlington in November or 2000.
Bell states that Burlington attempted to rehire him in February of 2001 as the merchandising manager at Mesquite for a salary of $36,000. However, Bell stated that he needed at least $40,000 to return to Burlington. Burlington eventually hired two white people to fill its assistant manager vacancies, and Bell says that these assistant managers were paid more than $36,000.
Bell filed his EEOC charge on or around April 30, 2001, alleging that Burlington discriminated against him by failing to promote him to several managerial openings during his tenure at Burlington. He also alleges that Burlington discriminated against him by paying similarly situated white employees more money.
D. Greg Westmoreland
Westmoreland began working for Burlington in July of 2000. Westmoreland first worked for Burlington as a loss prevention associate during Lyons' tenure as Mesquite store manager. Westmoreland earned $7.50 per hour at the beginning of his tenure.
Westmoreland interviewed with Burlington for operations manager openings it had in two stores, and was promoted to operations manager at the Red Bird store at a salary of $36,000. Westmoreland had sought a salary of $40,000 and placement at Mesquite. Westmoreland states that he was the second lowest paid operations manager of Burlington's area stores in 2001 and 2002.
On April 30, 2001, Westmoreland filed a charge of race discrimination with the EEOC. In the charge, Westmoreland alleged that (1) when he was hired as operations manager in 2001, he was paid less than white operations managers, and (2) he was relegated to Red Bird because of its predominately African-American base.
Westmoreland was terminated from Burlington in November 2002. Burlington states that his termination was based on continuing performance problems and gross negligence, but Westmoreland states that he was terminated as retaliation for filing a charge of discrimination with the EEOC.
II. Summary Judgment Standard
Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25, 106 S.Ct. at 2551-54. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321-25, 106 S.Ct. at 2551-54; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 2513-14 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962).
III. Racial Discrimination Law
The Plaintiffs seek relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Civil Rights Act of 1866, 42 U.S.C. § 1981; and the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code, § 21.001, et seq. Title VII makes it unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. 42 U.S.C. § 2000e-2(a)(1). Title 42 U.S.C. § 1981 provides that all persons within the United States have the same right to make and enforce contracts regardless of race.
Although each of these statutes authorizes a separate cause of action, the evidentiary framework to make out a claim for relief under any of them is the same. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.); La Pierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996) (Title VII and § 1981); Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 251 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (Title VII and the TCHRA); City of Austin v. Gifford, 824 S.W.2d 735, 738-39 (Tex.App.-Austin 1992, no writ) (Title VII and the TCHRA).
To survive a defendant's motion for summary judgment, a plaintiff must present sufficient evidence to create a fact issue regarding race discrimination, either through direct or circumstantial evidence. A plaintiff who offers sufficient direct evidence of intentional discrimination should prevail, just as in any other case where a plaintiff meets his burden. Nichols v. Lord Vought Systems Corp., 81 F.3d 38, 40 (5th Cir. 1996) (citing Portis v. First Nat'l Bank of New Albany, Miss., 34 F.3d 325, 328 n. 6 (5th Cir. 1994)). Direct evidence of discrimination, however, is rare.
Consequently, the Supreme Court devised an evidentiary procedure in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that allows a plaintiff to meet his burden of proof through circumstantial evidence. Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the alleged discriminatory action. The defendant's burden is one of production, not proof, and involves no credibility assessments. See West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384-85 (5th Cir. 2003). If the defendant meets its production burden, the plaintiff must adduce evidence that would permit a reasonable trier of fact to find that each articulated reason is a pretext for intentional discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-93 (5th Cir. 1996) (en banc); Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.) (holding that at summary judgment stage, plaintiff must raise fact issue). Once a case reaches the pretext stage, the inference of discrimination ends, leaving only the ultimate issue of whether there is a conflict in substantial evidence sufficient to create a fact issue regarding discrimination. Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996) (en banc). Evidence is substantial if it is of such quality and weight that reasonable and fair minded people in the exercise of impartial judgment might reach different conclusions. Id.
At the summary judgment stage, a plaintiff is not entitled to summary judgment in its favor merely by establishing a prima facie case of discrimination while a defendant fails to produce evidence of legitimate, nondiscriminatory reasons for the disparate treatment of its employees. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) (a plaintiff is entitled to judgment as a matter of law at the close of a defendant's case if the defendant has not met its burden of production of demonstrating a legitimate, nondiscriminatory reason for disparate treatment) (emphasis added).
In this case, Plaintiffs collectively claim Burlington took part in four different types of race discrimination: (1) unequal pay; (2) failure to promote; (3) demotion; and (4) "relegation" of Plaintiffs to stores in predominately African-American areas. The Court shall analyze each claim in turn.
A. Unequal Pay
To establish a prima facie case of unequal pay, Plaintiffs must show that they (1) belong to a protected class, and (2) are paid less than a nonmember of the class for work requiring substantially the same responsibility. See Uviedo v. Steves Sash Door Co., 738 F.2d 1425, 1431 (5th Cir. 1984). Multiple factors influence the amount of salary an employee receives, including varying job and skill levels and previous training and experience. See Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795, 802-03 (5th Cir. 1982). Plaintiffs may establish a prima facie case of race discrimination through statistical evidence, although statistics generally do not take into account the many factors which determine the amount of salary an employee receives. See EEOC v. Olson's Dairy Queens, Inc., 989 F.2d 165, 167-68 (5th Cir. 1993); Merrill v. Southern Methodist Univ., 806 F.2d 600, 607 (5th Cir. 1986).
1. Lyons
Lyons alleges that Burlington discriminated against him because of his race by paying him less than four white Burlington store managers in the same district. Lyons supports his argument with statistical data showing that in 2001, 2002, and 2003, several white store managers were paid more than Lyons. Lyons alleges that in 2001, Bob Sullivan, Steve Bitting, Dennis Wilson, and Bob Kelly were paid more than Lyons for performing the same work. Lyons alleges that Mr. Bitting was paid more than Lyons in 2002, and that Mr. Bitting and Mr. Bowman were paid more than Lyons in 2003.
Lyons is a member of a protected class, and with the exception of Mr. Wilson and Mr. Bowman, Lyons makes out a prima facie claim of race discrimination based on unequal pay. Bob Bentley, Burlington's Regional Manager over its Texas, Louisiana, and Oklahoma stores, testified in a declaration before the Court that Mr. Wilson was a district manager in Colorado in 2000, not a store manager in the Dallas area in 2001, as Lyons claims. Lyons does not controvert this evidence, so the Court takes it as true. Also, according to Lyons' own data, his hourly salary was greater than Mr. Bowman's in 2003, so he cannot make a prima facie case for unequal pay in 2003. Nonetheless, Lyons has made a prima facie showing of race discrimination based on unequal pay for each of the years he compares himself to other store managers.
Having met his initial burden, Burlington must produce evidence of its legitimate, nondiscriminatory reasons for the discrepancies. To do so, Burlington offers the declarations of Mr. Bentley and Todd Brawner, Burlington's District Manager over the Dallas district. Mr. Brawner testified that the initial salary for a newly hired manager is based on multiple factors: (1) work experience; (2) qualifications; and (3) prior salary history. Mr. Brawner also testified that Burlington may give a manager a raise based on (1) the manager's performance at Burlington; or (2) Burlington's efforts to retain a manager by matching a competitor's offer to the manager.
Mr. Bentley testified that Mr. Bitting received a higher salary than Lyons from 2001 through 2003 based on Mr. Bitting's work experience and previous salary as a store manager at Mervyns, as well as management experience elsewhere. Mr. Bentley also states that since Mr. Bitting received an offer of $70,000 per year from Kohls, Burlington gave Mr. Bitting a significant raise in order to retain him as Grapevine store manager. These justifications suffice as legitimate, nondiscriminatory reasons for the discrepancy between the salaries of Mr. Bitting and Lyons. Because Burlington has met its burden, Lyons has the burden of showing that Burlington's legitimate, nondiscriminatory reasons for the discrepancy are pretext. Instead of putting forth evidence of pretext, Lyons argues that Burlington has offered no legitimate reasons for the discrepancy. Therefore, Lyons has failed to meet his burden with respect to the pay discrepancy between himself and Mr. Bitting.
Regarding Lyons' other comparators, Mr. Kelly and Mr. Sullivan, Mr. Brawner's declaration states that Burlington relies on work experience, qualifications, prior salary history, performance, and competitors' offers to set the salaries of its managers. These factors are legitimate, nondiscriminatory reasons for paying managers different amounts. See Hutchins v. International Brotherhood of Teamsters, 177 F.3d 1076, 1881-82 (8th Cir. 1999) (holding that employees' qualifications, education, experience, and salary history are legitimate, nondiscriminatory factors an employer may use in formulating pay decisions). Though Lyons claims that Mr. Kelly and Mr. Sullivan received more pay than Lyons because of his race, he does not put forth any evidence which indicates that the factors Burlington uses in setting its managers' salaries are pretextual, either on their face or as applied.
Therefore, Lyons' failure to offer evidence of pretext regarding Burlington's legitimate, nondiscriminatory reasons for paying his less than his self-selected comparators fails to create a fact issue on his claim of unequal pay, and Burlington is entitled to summary judgment on the claim as a matter of law.
2. Bell
Bell alleges that Burlington discriminated against him because of his race by paying him less than other merchandising managers at Burlington. In support of his argument, Bell offers statistical data showing that in 1998, 1999, and 2000, several white merchandising managers were paid more than Bell. In 1998, Jason Ramsey, Wesley House, Frank Huber, and Jon Michael Jones were paid more than Bell. In 1999, Jorge Bergen was added to that list, and in 2000, Eva Lewis and Dixie Caldwell were paid more than Bell, as well. Bell has put forth a prima facie case of discrimination, as he is a member of a protected class and nonmembers were paid more for doing substantially the same work. Therefore, the burden shifts to Burlington to show legitimate, nondiscriminatory reasons for the discrepancy.
As mentioned above, Mr. Brawner's declaration states that Burlington relies on work experience, qualifications, prior salary history, performance, and competitors' offers to set the salaries of its managers. These factors qualify as legitimate, nondiscriminatory reasons for a pay differential. See id. Though Bell claims that his comparators received more pay than he did because of his race, he does not put forth any evidence which indicates that the factors Burlington uses in setting its managers' salaries are pretextual, either on their face or as applied.
Therefore, Bell's failure to offer evidence of pretext regarding Burlington's legitimate, nondiscriminatory reasons for paying him less than his self-selected comparators fails to create a fact issue on his claim of unequal pay, and Burlington is entitled to summary judgment on the unequal pay claim as a matter of law.
3. Johnson
Johnson alleges that Burlington discriminated against him because of his race by paying him less than other shoe managers at Burlington. In support of his argument, Johnson offers statistical data showing that in 2001, two white shoe managers, Shirley Leach and Stan Warner, were paid more than Johnson. Johnson has put forth a prima facie case of discrimination, as he is a member of a protected class, and nonmembers of that class received more compensation for doing substantially the same work. Burlington must now produce legitimate, nondiscriminatory reasons for the pay discrepancy between Johnson and Ms. Leach and Mr. Warner.
Mr. Brawner testified that Shirley Leach's salary was higher than Johnson's because she had a 15 year tenure at Burlington and because she stepped down from operations manager to work as shoe manager. Mr. Brawner also testified that Stanley Warner's salary was higher than Johnson's because it took a higher salary to hire Warner and because Mr. Warner had significant previous retail experience. Therefore, Burlington has met its burden of producing legitimate, nondiscriminatory reasons for the pay discrepancy between Johnson and his comparators.
While Johnson states that "a reasonable jury could conclude that Burlington's explanation was a pretext for race discrimination," he offers no evidence, let alone substantial evidence, to show that Burlington's reasons for the salary differential were pretextual. Johnson does state that he had one of the highest performing shoe departments in the DFW area, and Mr. Brawner acknowledged in his declaration that Johnson received a raise in 2001 because he had performed well as shoe manager. However, this is not substantial evidence of a material fact which shows that Burlington's legitimate, nondiscriminatory reasons for the pay discrepancies are pretextual.
Therefore, Johnson has failed present evidence to raise a fact issue on his unequal pay claim, and Burlington is entitled to summary judgment on the claim as a matter of law.
4. Westmoreland
Westmoreland alleges that Burlington discriminated against him because of his race by paying him less than another operations manager at Burlington. In support of his argument, Westmoreland offers statistical data showing that in 2001 and 2002, numerous white operations managers were paid more than Westmoreland. Westmoreland has put forth a prima facie case of discrimination, as he is a member of a protected class, and nonmembers of that class received more compensation for doing substantially the same work.
Two of Westmoreland's comparators, Rodney Erakovich and Brad Maisel, were white operations managers whom Burlington paid more than Westmoreland. Burlington produced legitimate, nondiscriminatory reasons for the pay discrepancy between Westmoreland and Mr. Erakovich, as Mr. Brawner testified in his declaration that Mr. Erakovich was paid more because of his prior experience, his salary before his arrival at Burlington and after his arrival, and his performance as a loss prevention associate at Burlington. Specifically, Mr. Brawner testified that Mr. Erakovich's prior salary history and work experience as a district loss prevention manager at Montgomery Ward's and JC Penney's, in addition to his performance as a loss prevention associate at Burlington, warranted a higher salary than Westmoreland's. These reasons are legitimate, nondiscriminatory reasons for the pay discrepancy, which puts the burden on Westmoreland to put forth substantial evidence of pretext. Westmoreland responds by stating that his salary was around $40,000 before he worked at Burlington, yet only $36,000 when he became an operations manager at Burlington. Additionally, he states that he had a similar background to Erakovich. However, the evidence before the Court shows that Westmoreland's salary immediately before he started at Burlington was $36,000, not $40,000. Additionally, Westmoreland's experience at Burlington was different than that of Erakovich, as Westmoreland began his employment as a part-time loss prevention associate, whereas Erakovich was a full-time loss prevention associate with more retail experience than Westmoreland. Therefore, Westmoreland has failed to present evidence which demonstrates that Burlington's reasons for the pay differences between himself and Mr. Erakovich were pretextual, and he does not raise a fact issue on his unequal pay claim with respect to Mr. Erakovich.
Burlington's also produces legitimate, nondiscriminatory reasons for paying Mr. Maisel more than Westmoreland. Mr Brawner testified that Mr. Maisel was paid more because when he was hired as an operations manager in 2000, he had previously worked at Burlington for eight years in a wide variety of roles, providing him with a good deal of experience. Mr. Brawner testified Mr. Maisel's experience as a receiving manager and an inventory control manager increased his value as an operations manager, thus justifying a higher salary. These reasons are legitimate, nondiscriminatory reasons for the pay discrepancy, which puts the burden on Westmoreland to put forth substantial evidence of pretext. Westmoreland fails to even acknowledge these legitimate, nondiscriminatory reasons in his response to Burlington's motion, so he fails to create a fact issue as to Mr. Maisel's comparison.
Regarding the other operations managers Westmoreland compares himself to, Mr. Brawner's declaration states that Burlington relies on work experience, qualifications, prior salary history, performance, and competitors' offers to set the salaries of its managers. These factors are legitimate, nondiscriminatory reasons for paying managers different amounts. See id. Though Westmoreland claims that his comparators received more pay than he did because of his race, he does not put forth any evidence which indicates that the factors Burlington uses in setting its managers' salaries are pretextual, either on their face or as applied.
Therefore, Westmoreland fails to present evidence which raises a fact issue on his unequal pay claim, and Burlington is entitled to summary judgment on the claim as a matter of law.
B. Failure to Promote
Bell and Johnson claim that Burlington discriminated against them by failing to promote them. Under the McDonnell Douglas framework, a plaintiff can establish a prima facie case of discrimination in a failure to promote case by showing (1) he is a member of a protected class; (2) he sought and was qualified for the position; (3) he was rejected for the position; and (4) the employer continued to seek applicants with the plaintiff's qualifications. Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000).
1. Bell
Bell claims that Burlington discriminated against him on the basis of his race by not promoting him to store manager at Arlington in 1999 or Red Bird in December of 1999 or early 2000. Burlington argues that each claim is procedurally barred.
Burlington argues, and Bell concedes, that the actions giving rise to a claim under Title VII must have occurred in the 300 days before the plaintiff's charge was filed with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003). In Bell's case, he filed his charge on April 30, 2001, meaning his cut-off date July 5, 2000. Bell complains of Burlington's failure to promote him in late 1999 and early 2000. Therefore, the Court does not have jurisdiction to hear his failure to promote claims brought under Title VII.
Similarly, a claim brought under 42 U.S.C. § 1981 must be brought within two years of the alleged adverse employment action. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). As Bell's Original Complaint was not brought until February 28, 2002, and his failure to promote claims revolve around actions which took place in 1999 and January of 2000, both claims are barred by the two year statute of limitations applicable to section 1981 actions.
Burlington is entitled summary judgment on Bell's failure to promote claims as a matter of law.
2. Johnson
Johnson alleges that Burlington discriminated against him on the basis of his race by not promoting him to operations manager at the Webb Chapel store in April of 2000, and in July of 2000.
As stated above, the actions giving rise to a claim under Title VII must have occurred in the 300 days before the plaintiff's charge was filed with the EEOC. See id. Johnson, like Bell, filed his charge with the EEOC on April 30, 2001. Therefore, his failure to promote claim based on Burlington's actions in April of 2000 occurred more than 300 days before he filed his charge with the EEOC. Because Burlington's failure to promote Johnson was a single discrete act, and the charge was not filed within 300 days of that act, the claim is time-barred. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002).
However, Johnson's failure to promote claim based on the actions of Burlington in July of 2000 falls within the 300 day requirement. Therefore, the Court has jurisdiction over that claim. Johnson claims that Burlington committed race discrimination by refusing to promote him to operations manager in July of 2000, instead hiring Brad Maisel, a white male, to serve as operations manager. Burlington does not dispute that Johnson was qualified for the position of operations manager. Therefore, Johnson makes out a prima facie case of failure to promote based on race discrimination, and the burden shifts to Burlington to produce legitimate, nondiscriminatory reasons for its denial of promotion to Johnson.
Mr. Brawner testified that Mr. Maisel had previously worked at Burlington for eight years, and had a proven track record at Burlington. Mr. Brawner also testified that Mr. Maisel assisted in the opening of several Burlington stores and assisted Mr. Brawner in various special projects related to inventory control and receiving, areas in which a person gains a better understanding of the operations manager role than the shoe department. As Burlington has offered legitimate, nondiscriminatory reasons for hiring Mr. Maisel, the inference of intentional discrimination created by Johnson's prima facie case of race discrimination based on failure to promote disappears, and he has the burden of putting forth substantial evidence that Burlington's reasons for terminating him are pretextual.
Johnson's sole evidence of pretext is that Mr. Maisel performed poorly in his role as operations manager. Specifically, Johnson points out that Mr. Maisel received a rating of 3.4 on his performance evaluation ending on July 31, 2001, with 3 being "satisfactory" and 4 being "needs to improve". However, the proper inquiry in this case is whether, at the time of the job opening, Burlington's hiring evaluations of Johnson and Mr. Maisel were honest and free of discriminatory bias. See Oliver v. U.S. Dept. of Defense, 44 F. Supp.2d 821, 826 (W.D. Tex 1999) (citing Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 142 (5th Cir. 1996)). Johnson puts forth no evidence that Burlington's reasons for hiring Mr. Maisel were pretextual, and he fails to show a genuine issue of material fact on his failure to promote claim.
Burlington is entitled to summary judgment on Johnson's failure to promote claims as a matter of law.
C. Demotion
Lyons claims that Burlington discriminated against him on the basis of his race by demoting him from Mesquite to Red Bird in November of 2000. Lyons can establish a prima facie case of discrimination by showing (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he was demoted despite those qualifications; and (4) the job he held remained open after the demotion, and applications were accepted for the position. See Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001).
Burlington contends that the move from Mesquite to Red Bird was a purely lateral transfer, which does not qualify as a demotion. The Fifth Circuit Court of Appeals has held that an employment action which does not affect job duties, salary, or benefits is not an adverse employment action under the meaning of Title VII. See Banks v. East Eaton Rouge Parish School Bd., 320 F.3d 570, 574 (5th Cir. 2003). Lyons contends that Banks does not apply because he was transferred to a smaller store and did not receive a pay raise the next year, thus affecting his responsibilities and salary. Lyons relies primarily on Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996) in making this argument.
Forsyth is inapplicable. First, that case dealt with violations of the plaintiffs' First Amendment Rights, § 1983, and the Texas Whistleblower Act. See id. More importantly, the plaintiffs in Forsyth were police officers which were transferred from the intelligence unit to the night uniformed patrol unit. See id. The Fifth Circuit Court of Appeals held that despite maintaining the same salary, the City of Dallas violated the plaintiffs' rights, because although the officers received no reduction in pay, they were transferred from more prestigious jobs with better working hours, different responsibilities, and more interesting work.
Here, Lyons was transferred from one store to another, received the same pay, maintained the title of store manager, and maintained the same responsibilities. While Lyons might feel that the Red Bird position was less prestigious than Mesquite, his subjective belief that he was demoted is insufficient to show that he actually was demoted. See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 771 (5th Cir. 2001). Although the plaintiffs in Forsyth received no decrease in pay, their transfer materially altered their working conditions for the worse and stripped them of responsibilities they had previously enjoyed. Lyons' responsibilities were only affected insofar as Red Bird was a smaller store than Mesquite, with less departments for Lyons to manage.
The fact that Red Bird had fewer departments that Mesquite is immaterial. See Lawrence v. Wal-Mart, 236 F. Supp.2d 1314, 1331 (M.D. Fla. 2002) (holding that an employer did not subject its employee to an adverse employment action by transferring the employee to a store where the employee was responsible for less departments than before, where the employee's salary, title, and benefits did not change with the transfer). Lyons' transfer from Mesquite to Red Bird was purely lateral, and not a demotion. Therefore, he fails to make a prima facie case of discrimination based on demotion against Burlington.
Burlington is entitled to summary judgment on Lyons' demotion claims as a matter of law.
D. "Relegation"
Lyons, Westmoreland, and Bell also claim that Burlington discriminated against them by "relegating" them to stores with predominately African-American clienteles. Plaintiffs rely on Brown v. McKinney Shoe Corp., 237 F.3d 556 (5th Cir. 2001) in bringing this cause of action.
In Brown, the Fifth Circuit Court of Appeals upheld the district court's denial of the defendant's motion for judgment as a matter of law, where the plaintiff claimed that by refusing to promote him to a "non-ethnic" store and keeping him at an "ethnic" store, the defendant committed race discrimination by failing to promote the plaintiff. Plaintiffs in this case argue that Brown stands for the proposition that if Burlington chooses to have African-American employees work in predominately African-American neighborhoods and white employees to work in predominately white neighborhoods, then Burlington has committed race discrimination. However, this Court does not read Brown so broadly.
The defendant in Brown designated its stores as "ethnic" and "non-ethnic" for merchandising purposes. See Brown, 237 F.3d at 565. The court in Brown noted that the plaintiff presented evidence that (1) the defendant offered to promote the plaintiff to manage a 1.4 to 1.6 million dollar store in an ethnic area and (2) the defendant refused to promote the plaintiff to manage a smaller store in a non-ethnic area. See id. Although the defendant contradicted the plaintiff's testimony, the jury was free to side with Brown and find that the defendant intentionally discriminated against him by not promoting him to a non-ethnic store. See id.
In this case, however, Plaintiffs' "relegation" theory is not actionable. Title VII only applies to "ultimate employment actions" such as hiring, granting leave, promoting, compensating, and discharging employees. See Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002). The claim in Brown which Plaintiffs focus on was a failure to promote claim, not "relegation," and the plaintiff in Brown did not prevail on a cause of action apart from failure to promote. Even taking Plaintiffs' "relegation" allegations as true, Burlington did not take an ultimate employment action merely by assigning Lyons, Westmoreland, and Bell to their respective stores, and thus they do not state claims on which relief can be granted under Title VII.
As Plaintiffs' "relegation" claims are not actionable, Burlington is entitled to summary judgment on those claims as a matter of law.
IV. Retaliaion
Plaintiffs also allege that Burlington violated the law by retaliating against them for taking part in legally protected activity. As with the claim of race discrimination, the court applies the McDonnell Douglas burden shifting framework to Plaintiffs' claim of retaliation. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998). To establish a prima facie case of retaliation, Plaintiffs must show that (1) they engaged in activity protected by Title VII, (2) an adverse employment action occurred, and (3) a causal link exists between the protected activity and the adverse action. See Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
The causal link required in the third prong of the test does not rise to the level of a "but for" standard, and Plaintiffs need not prove that their protected activity was the sole factor behind Burlington's decision in order to establish the causal link. See id. A causal link is established when the evidence shows that the employer's decision to terminate the employee was based in part on knowledge of the employee's protected activity. See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001).
1. Lyons
Lyons claims that Burlington retaliated against him for filing his charges with the EEOC by refusing to consider him for the position of store manager for the Mesquite, Webb Chapel, or Piano stores when openings for those positions opened in 2001 and 2002. Additionally, Lyons alleged that Burlington retaliated against him by failing to consider him for district manager when that position opened in May of 2002.
Burlington does not dispute that Lyons' filing of his EEOC charges meets the first part of the prima facie test for retaliation, which is engaging in a protected activity under Title VII. Instead, as with Lyons' demotion claim, Burlington argues that Lyons was not subjected to an adverse employment action. See Banks, 320 F.3d at 575-76; see also Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999) (holding that defendant's refusal to give a purely lateral transfer to an employee was not an ultimate employment decision).
The Court agrees. Banks and Burger clearly enunciate the position of the Fifth Circuit on the issue. So long as Lyons' responsibilities, compensation, and benefits would have remained the same at the other stores he wished to move to, no ultimate or adverse employment action took place. Lyons has offered no evidence that his duties or compensation would be affected in any way by a transfer or a refusal to transfer, and thus he cannot make a prima facie showing of retaliation.
Lyons also argues that Burlington's failure to promote him to district manager over Burlington's Fort Worth district in May of 2002 amounts to retaliation for engaging in protected activity. Although this alleged retaliation occurred in May of 2002, Lyons failed to plead this cause of action in his live pleading, Plaintiffs' Third Amended Complaint, dated February 6, 2003. Because of this omission, the Court will not consider this claim.
Burlington is entitled to summary judgment on Lyons' retaliation claims as a matter of law.
2. Johnson
Johnson alleges that Burlington retaliated against him by promoting Mr. Erakovich to operations manager in Mesquite in November of 2001 instead of himself, and by terminating Johnson in November of 2001. Burlington does not dispute that Johnson engaged in protected activity by filing an EEOC charge or that Burlington caused Johnson to suffer adverse employment actions. Therefore, Johnson need only prove a causal connection between the protected activity and the adverse employment action in order to establish a prima facie case of retaliation.
Burlington argues that because the adverse employment actions complained of by Johnson occurred over six months after Johnson filed his charge with the EEOC, the adverse actions are too remote to establish a causal link. The Court disagrees. See Fabela v. Socorro Independent School Dist., 329 F.3d 409, 418 fn. 9 (5th Cir. 2003) (holding that while an adverse employment activity which occurs very soon after an employee's participation in protected activity is suspicious, the converse is not necessarily true). The mere passage of six months' time is not sufficient to render Burlington's actions too remote. See Gee, 289 F.3d at 347 n. 3 (the passage of two years' time between plaintiff's protected activity and defendant's adverse employment action is not sufficient to prove lack of a causal connection between the two).
Given that the standard for establishing a causal link between the protected activity and the adverse employment action is much less stringent than a "but for" standard, the fact that Burlington knew of Johnson's protected activity and, with that knowledge, terminated him, is sufficient to establish the necessary link. See Fierros v. Texas Dept. of Health, 274 F.3d 187, 196 (5th Cir. 2001) (holding that the mere fact that an employer knew of an employee's protected activity when the employee suffered the adverse employment action took place is sufficient to establish a causal link). As Johnson has established a prima facie case of retaliation, the burden shifts to Burlington to demonstrate its legitimate, nondiscriminatory reasons for not promoting and terminating him.
Burlington meets this burden with testimony from Mr. Brawner that Johnson intentionally made unauthorized voids on a cash register and could not account for $300 which was missing from the cash register which he allegedly manipulated. Johnson does not dispute that he took part in such acts, and these reasons certainly qualify as legitimate, nondiscriminatory reasons for Johnson's termination. Therefore, the inference of intentional discrimination created by Johnson's prima facie case of retaliation disappears, and Johnson has the burden of putting forth substantial evidence that Burlington's reasons for not promoting and terminating him are pretextual.
Johnson attempts to meet his burden by arguing that because Mr. Erakovich was not fired after $200 became missing from his cash register at Red Bird, and Johnson was fired after a similar incident, this establishes pretext. However, Johnson puts forth no evidence that Mr. Erakovich's conduct was intentional, as opposed to merely careless, whereas the evidence is uncontroverted that Johnson's conduct was intentional. Additionally, Mr. Brawner testified that in 2001 and 2002, five white employees in the South Oklahoma City store were fired for conduct similar to Johnson's. This testimony is also uncontroverted. Johnson has not met his burden of putting forth substantial evidence of pretext, and his retaliation claim must fail.
Burlington is entitled to summary judgment on Johnson's retaliation claim as a matter of law.
3. Westmoreland
Westmoreland claims that Burlington retaliated against his filing an EEOC charge on April 30, 2001, by terminating his employment in November or 2002. Burlington does not dispute that Westmoreland took part in protected activity by filing his charge and suffered adverse employment action by being terminated, but Burlington does dispute the existence of a causal link between the two. Westmoreland filed an amended charge with the EEOC on April 30, 2001, but was not terminated from Burlington until November of 2002. While the adverse activity complained of by Westmoreland is far more remote than that suffered by Lyons and Johnson, viewing the evidence in the light most favorable to Westmoreland the Court nonetheless finds that there could be a causal link between his filing of the EEOC charge and his termination by Burlington. See Fierros, 274 F.3d at 196; Gee, 289 F.3d at 347 fn. 4. Therefore, Burlington has the burden of showing legitimate, nondiscriminatory reasons for Westmoreland's termination.
Burlington more than meets this burden. First, Mr. Brawner testified that during Westmoreland's tenure as operations manager at Red Bird, he had difficulty handling all of his assigned tasks and Red Bird had problems complying with Burlington's policies. Additionally, Lyons testified in his deposition that Westmoreland had performed poorly as operations manager at Red Bird, causing Lyons to write him up twice for poor performance. Lyons and Mr. Brawner also testified that over $100,000 in inventory went unprocessed for an unacceptable period of time under Westmoreland's watch. Therefore, the inference of intentional discrimination created by Westmoreland's prima facie case of retaliation disappears, and Westmoreland has the burden of putting forth substantial evidence that Burlington's reasons for his termination are pretextual.
Westmoreland fails to sustain this burden. Westmoreland only responds to Burlington's legitimate, nondiscriminatory reasons for his termination by arguing that Burlington has failed to cite Mr. Erakovich for conduct similarly deficient. However, Westmoreland proffers no evidence to support this assertion, and fails to create a fact issue on his retaliation claim.
Therefore, Burlington is entitled to summary judgment on Westmoreland's retaliation claim as a matter of law.
V. Conclusion
For the reasons stated above, Burlington is entitled to summary judgment on each of Plaintiffs' claims as a matter of law. Therefore, Defendants' Motion for Summary Judgment is GRANTED, and Plaintiffs shall take nothing in their suit against Defendant.
SO ORDERED.
JUDGMENT
This Judgment is entered pursuant to the Court's Memorandum Opinion and Order entered this day, in which the Court granted Defendant's Motion for Summary Judgment, finding that Plaintiffs failed to present sufficient evidence of discrimination or retaliation to create a fact issue.
It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiffs Darrell Lyons, Jerry Johnson, Joe Bell, and Greg Westmoreland take nothing by this suit against Defendants Burlington Coat Factory Warehouse Corporation, Burlington Coat Factory Warehouse of Redbird, Inc., Burlington Coat Factory Warehouse of Euless, Inc., Burlington Coat Factory Warehouse of Grapevine, Inc., and Burlington Coat Factory Warehouse of Fort Worth, Inc., and that the claims presented are DISMISSED with prejudice, with all costs taxed against Plaintiffs.