Opinion
Civil Action No: SA-03-CA-383-XR
May 5, 2004
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (Docket no. 10). Plaintiff sues his current employer for race discrimination complaining that it has repeatedly failed to promote him in violation of Tex. Labor Code § 21.051. For the reasons stated below, the Court GRANTS, in part, and DENIES, in part, the Defendant's motion.
I. Facts and Procedural Background
Plaintiff, an African American, initially began his employment with Laboratory Corporation of America (LabCorp) on August 2, 2000 as a cytotechnologist. In February 2002, a Team Leader position became vacant and the position was posted. Interested employees were required to apply for the position in writing. Two employees applied, but Plaintiff failed to submit an application. Thomas Mailhiot was selected effective March 3, 2002.
A cytotechnologist "microscopically screens slides containing samples of patient cell tissue to detect the possible presence of cancer, precancerous changes, or infections. All positive findings are referred to pathologists for further evaluation and action."
Mr. Mailhiot resigned in November 2002, and the vacancy was again posted. Plaintiff and three external candidates applied. The plaintiff and Denise Martin were selected for an interview, and ultimately Ms. Martin was selected. She, however, declined the offer on December 4, 2002. Rather than offer the position to Plaintiff, the position was kept open and Defendant continued to seek applicants. In April 2003, two employees applied (Tina Valdez and Janet Pohorelsky). Both candidates were interviewed, and ultimately Ms. Pohorelsky was selected for the position effective April 13, 2003.
On January 2, 2003, the Plaintiff filed a charge of discrimination with the Texas Commission on Human Rights and the Equal Employment Opportunity Commission (EEOC) alleging that on November 21, 2002, he was denied a promotion to the position of assistant supervisor. The EEOC informed Plaintiff on January 27, 2003, that it was unable to conclude that the information obtained during its investigation established any violation. Plaintiff filed suit in state court on March 31, 2003, and the case was subsequently removed to this court by the Defendant alleging the Court had diversity jurisdiction.
In his Petition, Plaintiff complains that he was discriminatorily denied a promotion to Team Leader/assistant supervisor on three different occasions.
II. Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
III. Analysis
A. Is the Denial of a February/March 2002 Promotion barred by limitations?In order to pursue a claim under the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code § 21, et seq., a plaintiff must file a charge of discrimination with the EEOC and/or the Texas Commission on Human Rights within 180 days of the "alleged unlawful employment practice." See Tex. Labor Code § 21.201.
As noted above, Plaintiff filed his charge of discrimination on January 2, 2003. Accordingly, Defendant argues that Plaintiff's claim of denial of promotion occurring in February/March 2002 is barred by limitations. Plaintiff does not contest this point in his response to Defendant's motion. Plaintiff's claim is barred by limitations. Cooper-Day v. RME Petroleum Co., 121 S.W.Sd 78, 83 (Tex.App. — Ft. Worth 2003, pet denied); Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 552-53 (Tex.App.-San Antonio 2002, pet denied).
B. Is the Denial of the April 2003 Promotion barred by any failure to complain to the EEOC?
As a general rule, a plaintiff cannot bring discrimination claims in a civil lawsuit that were not included in her EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). "The relevant test in determining whether [plaintiff] was required to exhaust her administrative remedies is whether the acts alleged in the subsequent . . . suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). Where the allegations in the complaint are sufficiently distinct from those presented in the EEOC charge, and were not part of the Commission's investigation, courts have required the exhaustion of administrative remedies before such allegations could be pursued in district court.
Defendant further argues that the EEOC concluded its investigation as of January 2003, and accordingly an alleged act of a discriminatory denial of a promotion occurring in April 2003 can not fall within the scope of the prior EEOC charge, or the investigation arising therefrom. Plaintiff does not contest this point in his response to Defendant's motion. Plaintiff's claim is barred for failure to exhaust his administrative remedies. Davis v. Education Service Ctr., 62 S.W.3d 890, 894 (Tex.App.-Texarkana 2001, no pet.); Bexar County v. Gant, 70 S.W.3d 289, 292 (Tex.App.-San Antonio 2002, pet. denied).
C. Denial of a November/December 2002 Promotion
The only remaining claim not barred is Plaintiffs denial of a promotion in November/December 2002.
The Fifth Circuit's most recent analysis of the Title VII evidentiary analysis was made in Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004). The Court stated:
To survive a summary judgment motion, . . . [a Plaintiff] must establish, by a preponderance of the evidence, a prima facie case of intentional discrimination. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). To establish an inference of discrimination, consistent with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 E. Ed.2d 668 (1973), a plaintiff must show a prima facie case by establishing that the (1) plaintiff is a member of a protected class; (2) plaintiff is qualified for the position; (3) plaintiff suffered an adverse employment action, and (4) plaintiff was replaced with a person who is not a member of the protected class. Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). After a prima facie case is made, the defendant must articulate a non-discriminatory reason for its actions. Martineau, 203 F.3d at 912. If this is done, the plaintiff must then prove (1) that the defendant's proffered reasons were false, and (2) that the real reason for his discharge was because he was a member of a protected class.Id. at 281.
Defendant asserts that it met its burden to rebut the prima facie case by articulating a non-discriminatory reason for not selecting Plaintiff, i.e. that he was not perceived to be the most qualified candidate. Once a Defendant offers a non-discriminatory reason for not selecting him, a Plaintiff is required to show that such reason was not the real basis for his rejection, but was merely a pretext for race discrimination. Pegram v. Honeywell, Inc., 361 F.3d at 281.
In order to show that a proffered reason was merely a pretext, and defeat a summary judgment dismissal in a non-promotion discrimination case, the Fifth Circuit in Edwards v. Principi, 80 Fed. Appx. 950, 952-53 (5th Cir. 2003) has stated the following:
[T]his Court requires that a plaintiff show a difference in his qualifications superior to that of the person selected "so apparent as to virtually jump off the page and slap us in the face." EEOC v. Louisiana Office of Community Services, 47 F.3d 1438, 1445 (5th Cir. 1995). We have held that a plaintiffs subjective belief or unsubstantiated assertions of racial discrimination are insufficient to raise an inference of discrimination sufficient to defeat a summary judgment dismissal. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999); Grimes v. Texas Dept. of Mental Health at San Antonio, 102 F.3d 137, 140 (5th Cir. 1996). It is not enough to defeat summary judgment dismissal that a plaintiff show that a trier of fact could find that he was just as qualified as the person selected to show an inference of discrimination. Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993). Rather, a plaintiff must show that a trier of fact could find that he was clearly better qualified than the person selected. Id. Furthermore, this Court has held that in evaluating non-promotion discrimination cases it will not substitute its own views or judgment for those in an organization who have been charged with the evaluation duty by virtue of their own years of experience and expertise in the field in question, unless the record shows that the plaintiff was clearly better qualified than the chosen candidate.
In this case, Plaintiff concedes that he was not better qualified than Denise Martin. Plaintiff argues, however, that once Ms. Martin rejected the position and he was the sole remaining candidate, Defendant's action in not promoting him, keeping the position vacant for four to five months, and actively recruiting other applicants was discriminatory.
Defendant, relying upon Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507 (5th Cir. 2001), argues that Plaintiff fails to establish a prima facie case of discrimination. Defendant argues that since no one assumed the Team Leader position in December 2002, as a matter of law, no one received more favorable treatment, and thus plaintiff's claim fails. The United States Supreme Court, however, in Mc Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973) declared only the following:
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.Id. at 802; See also Arenson v. Southern University Law Center, 911 F.2d 1124 (5th Cir. 1990), cert. denied, 499 U.S. 940(1991).
The burden of establishing a prima facie case, is "not onerous", but only requires proof that the plaintiff applied for an available position for which he was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. After the plaintiff establishes his prima facie case, "the burden shifts to the defendant . . . to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id. at 1127. Under Defendant's argument, an employer could discriminatorily refuse to hire or promote certain categories of employees for impermissible reasons, wait months for a new batch of applicants and hope that a better qualified candidate appears so as to avoid any liability.
The Court concludes that Plaintiff has established a prima facie case under McDonnell Douglas. The burden thus shifts to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected for a legitimate, nondiscriminatory reason.
Defendant also attempts to argue that Plaintiff was not qualified. The Court rejects this argument. To establish his prima facie case, a plaintiff need only establish that he met the minimum qualifications for the position sought. Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280 (5th Cir. 1989).
In this regard Defendant contends that although Plaintiff possessed the minimum qualifications, he had "weak communication skills," "light job skills/experience," and no previous experience as a supervisor. Defendant maintains that a supervisor, among other duties, is primarily responsible for the day to day supervision of the department, screenings and reporting of results. The supervisor must also be accessible to provide on-site, telephone or electronic consultation with clients, other laboratories, pathologists and the corporate offices to resolve problems.
"Qualifications include: Graduated from accredited cytology school and ASCP registered, B.S. Degree in Cytology or equivalent certification." In addition, a cytotechnologist supervisor must have had at least 3 years of experience as a cytotechnologist within the preceding 10 years.
Plaintiff responds that he was performing satisfactorily in his non-supervisory job. Plaintiff testified that he was named cytologist of the quarter based on his workload performance, accuracy, and "interfacing" with all personnel. Plaintiff also testified that he informed Defendant's personnel that he was taking management/leadership classes at a local junior college. He also testified that the Defendant's Regional Manager, Tracy Byrd told him he brought value to the Company, told him that she thought he could handle the Team Leader position, and discouraged him from resigning after he was passed over for promotion. Plaintiff also testified that because Defendant's management personnel were concerned about his lack of supervisory experience, he was approached by a Team Leader, Eric Luna, with the concept that another employee, Jerry Peters and Plaintiff be temporarily named as co-Team Leaders for a period of time, and that the position be ultimately awarded to the best performer. Mr. Luna characterizes his offer as merely allowing both employees to get a glimpse into what a Team Leader did on a day-today basis, and the offer was not part of any formal promotion evaluation. Plaintiff testified that he rejected the idea because he had more cytologist experience than Peters, and the concept was unfair to both him and Peters.
In her affidavit supporting Defendant's motion for summary judgment, Ms. Byrd states that during her interview of the Plaintiff and Ms. Martin in November/December 2002, she noted that Plaintiff did not possess good communication skills, nor handled stress well. In addition, he was unable to answer her specific questions regarding quality assurance procedures. She also noted that he was not well-skilled in non-GYN cytology. She also believed that he had shown little initiative during his employment. She and Mr. Luna also testified that there was some "discomfort" or "friction" existing between Plaintiff and other employees.
The Court rejects Plaintiffs argument that merely because Ms. Martin rejected the Team Leader offer, he was, as a matter of law, entitled to the position. Plaintiff provides no citation to any case for this proposition. Nevertheless, this case is a close call. As stated above, the Court can envision a scenario where an employer deliberately engages in a discriminatory decision not to hire or promote an individual, and then waits several months for an opportunity to hire a better qualified candidate and cover its discriminatory tracks. On the other hand, neither Title VII, nor the TCHRA, was "intended to be a vehicle for judicial second-guessing of business decisions, nor [were they] intended to transform the courts into personnel managers." Lindsey v. Prive Corp., 987 F.2d 324, 327-28 (5th Cir. 1993). All factors considered, the Court finds that a fact issue exists requiring denial of Defendant's motion on this issue.
As stated by the Court in Lindsey:
In this case, however, the question left for the judge or jury will not require second guessing of the defendant's personnel decisions but, rather, will require an evaluation of the credibility of the defendant's testimony about the reasons for that decision. . . . We have recognized the potential of subjective criteria to provide cover for unlawful discrimination. We have observed: "Establishing qualifications is an employer's prerogative, but an employer may not utilize wholly subjective standards by which to judge its employees' qualifications and then plead lack of qualification when its promotion process, for example, is challenged as discriminatory.Id. at 328; see also Medina v. Ramsey Steel Co., Inc., 238 F.3d 674 (5th Cir. 2001).
Conclusion
The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (Docket no. 10) is GRANTED, in part, and DENIED, in part.