Opinion
Civil No. 3:99-CV-0819-H
May 4, 2000
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed March 17, 2000; Plaintiff's Response, filed April 3, 2000; and Defendant's Reply, filed April 25, 2000.
After considering the pleadings, briefs and relevant authorities, the Court is of the opinion, for the reasons stated below, that Defendant's Motion for Summary Judgment should be GRANTED.
I . Background
Plaintiff is the former employee of Defendant Restor Telephone Products/World Access, Inc. ("Restor"). He began working for Restor as a Quality Control Inspector Trainee, and over the course of several years completed training and course work to further his quality control skills. Plaintiff also, at Restor's expense, took a refresher course and an American Society for Quality ("ASQ") certification exam that would qualify him for promotion to a higher position. Plaintiff failed that exam. When the position of Quality Control Supervisor became available, Plaintiff, then a Quality Control Inspector, expressed interest in the position but did not file an application. Nonetheless, Restor considered him for the supervisory position, but hired another individual. Plaintiff subsequently resigned his position with Restor on April 30, 1998.
On June 17, 1998, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR"), alleging Restor continuously discriminated against him while he was employed there. The EEOC initiated an investigation on behalf of itself and the TCHR, pursuant to 29 C.F.R. § 1601.13(c), then terminated its investigation and issued Plaintiff a Notice of Right To Sue on January 19, 1999. Plaintiff timely filed this action on April 13, 1999, pursuant to Section 706(e) of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act ("TCHRA"). II . Summary Judgment Standard
The Court previously ruled that, although Plaintiff, who is acting pro se and appears untrained in legal matters, failed to specifically state claims based on 42 U.S.C. § 2000e, et seq. ("Title VII") in his EEOC complaint, Restor had fair notice of those claims and they are properly before the Court. See January 19, 2000, Order.
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could possibly find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of III., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III . Analysis
Murray asserts two distinct claims: 1) he was not promoted to the position of Quality Control Supervisor because he was African- American, and 2) the ASQ certification exam is biased against Hispanics and African-Americans. He also asserts claims that allege Restor maintained a racially hostile environment.
A. Title VII Racial Discrimination — Disparate Treatment
Murray claims that he was racially discriminated against by Restor when they failed to promote him to the position of Quality Control Supervisor.
(i) Title VII "Burden Shifting"
In a Title VII unlawful discrimination case where, as here, the evidence is circumstantial, the Court's analysis must incorporate the burden-shifting structure described by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). First, the plaintiff must establish a prima facie case of discrimination, viz, that (1) he is a member of a protected class under the statute; (2) he applied for a position he was qualified for; (3) he was denied the position, and (4) the position was awarded to someone outside the protected class. Cardinal Towing Auto Repair, Inc. v. City of Bedford, Texas, 180 F.3d 686, 697 (5th Cir. 1999).
If a plaintiff is successful in establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-pretextual reason for the adverse employment action. If Defendant is successful, Plaintiff must then prove that Defendant's proffered reason is pretextual, i.e., "that a discriminatory motive more likely motivated [Defendant], or that [Defendant's] explanation is unworthy of credence." Id. at 589 (quoting Harrington v. Harris, 118 F.3d 359, 367-68 (5th Cir. 1997)).
(ii) Prima Facie Case
Murray, as an African-American, is a member of a protected class. There is also no dispute that he was not promoted to the position of Quality Control Supervisor, and that the position was filled by a white female. The remaining factor he must establish is that he applied for, and was qualified for, the position.
Murray adduces no summary judgment evidence that he ever applied for the position of Quality Control Supervisor. He states in his Response that he was never given the opportunity to apply, that the job was never posted, and that Restor "secretly" ran newspaper ads for the position. He was apparently aware, however, that the opening existed because he indicates he "expressed an interest in the position but was never given an application or interviewed for the position." Plaintiff's Response, at pg. 1. The Fifth Circuit has noted that merely expressing interest in a position does not satisfy the application prong. "The standard under Fields v. Hallsville Independent School District, 906 F.2d 1017, 1021 (5th Cir. 1990), is a strict one: the applicants must follow up on their initial expression of interest by actually applying for a position — an oral expression of interest is insufficient." Frazier v. Garrison I.S.D., 980 F.2d 1514, 1522 (5th Cir. 1993).
Murray adduces no summary judgment evidence at all in his Response. The Court recognizes that he is proceeding pro se, and holds his pleadings to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). However, his summary statement" does not satisfy the requirements of 28 U.S.C. § 1746, and he submits no affidavits or other trial-admissible evidence to rebut Defendant's summary judgment evidence. Although his claims fail for that reason alone, in the opinion of the Court his claims fail in any event, for the reasons stated.
The failure to apply is not a bar to Murray's claim only if he can show "that such an application would have been a futile gesture." Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 406 (5th Cir. 1999) (citing Teamsters v. United States, 431 U.S. 324, 363-66 (1977)). A claim of futility generally requires "a showing that the applicant for the promotion was deterred by a known and consistently enforced policy of discrimination." Id. Murray makes no such showing. His claim that he was not advised of the opening, and not given an application after expressing interest, may show management was not inclined to promote him, but does not establish any pattern of racial discrimination towards him, or African-Americans in general. Absent any showing that he actually applied for a position he was qualified for, or that known and consistently enforced racial discrimination made any application futile, his claim fails as a matter of law and is DISMISSED.
Even had Murray successfully established his prima facie case, his claim would fail. Restor submitted summary judgment evidence that it considered Murray for the position in any event, and rejected him on performance-related grounds. Murray claims that his work experience and his college degree qualified him for the position, but he fails to raise a fact issue that Restor's reasons for selecting an individual who had passed the AQC exam were pretextual, or otherwise not credible. Nor does Murray even address how Restor's decision might have been based on his race, other than observing that the successful applicant was a white female.
B. Title VII Racial Discrimination — Disparate Impact
Murray also claims that the required ASQ certification test was biased against African-Americans and Hispanics. "Under the disparate impact theory, a facially neutral employment practice can be in violation of Title VII even if there is no evidence of an employer's subjective intent to discriminate." Frazier, 980 F.2d at 1523.
To establish a prima facie case of disparate impact racial discrimination, Murray must "(1) identify the challenged employment practice or policy, and pinpoint the defendant's use of it; (2) demonstrate a disparate impact on a group that falls within the protective ambit of Title VII; and (3) demonstrate a causal relationship between the identified practice and the disparate impact. Gonzalez v. City of New Braunfels, Tx., 176 F.3d 834, 839 n. 26 (5th Cir. 1999) (emphasis in original). The second prong is generally, though not exclusively, accomplished by the use of statistical analysis. See, e.g., Frazier, 980 F.2d at 1523-24 (finding that relevant statistics alone are sufficient to establish a prima facie case, citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-51 (1988)).
Murray cites the requirement of ASQ certification as the challenged employment practice, but he must present some statistical analysis or other summary judgment evidence sufficient to show there that requiring certification results in racial discrimination, i.e., African-Americans and Hispanics are disadvantaged by Restor's practice. Murray, in his Response, claims that Restor refused his discovery request for relevant information that would allow him to establish his claim. Murray's discovery requests, however, are directed at why the test is required, not to any racially discriminatory impact. In the opinion of the Court, continuing this Motion for additional discovery, pursuant to Rule 56(f), would not lead to the production of any evidence that would raise a fact issue against Restor regarding disparate impact racial discrimination. Murray fails to make out his prima facie case, and his claim is DISMISSED.
In his deposition Murray stated he was the only minority in his exam session, and that some of the questions covered areas he had not studied while in college. When questioned as to whether he could have taken such courses, he stated, "They were available, but I never would have graduated if I had because of the time that it takes to study and apply to that. I'm trying to play basketball, devote time to that. You just have a certain amount of time. You have to get the courses that take the least amount of time to pass." Defendant's Appendix, at pg. A-53.
C. Related Title VII Claims
Plaintiff Murray also asserts claims that he was treated differently from other employees who were members of management, i.e., he was required to punch a time clock, he was not given a new computer, and that in general his working conditions were not equal to those management employees. Although not specifically addressed as such, this claim is more appropriately interpreted as one of a hostile environment. See, e.g., Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998) (finding an ongoing, racially hostile atmosphere resulted in a cause of action even absent any discrete adverse employment action).
Murray submits no evidence whatsoever that any of this alleged disparate treatment was due to his race, and Restor submits summary judgment evidence that Murray was not a management employee, and therefore not eligible for the perquisites he claims were denied him. It may be that Murray felt he did not receive the recognition he was due, given his tenure and achievements, but as any sergeant can attest to, tenure, skill and experience do not result in admission to the Officers' Club. Murray fails to establish a prima facie case of a racially hostile environment, and his claim is DISMISSED.
D. State Law Claims
Plaintiff's state law claims mirror his Title VII claims and fail for the same reasons, with one exception, viz, TEX. LABOR CODE ANN. § 21.124, Prohibition Against Discriminatory Use of Test Scores. The statutory provision states "It is an unlawful employment practice for a respondent, in connection with the selection or referral of applicants for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, sex, national origin, religion, age, or disability."
Plaintiff Murray, although alleging that the ASQ certification requirement for the supervisory position was unfair and discriminatory, does not allege that Restor adjusted or altered the results of his exam, the results of the exam taken by the successful applicant, or that a different test result was required of him than was required of anyone else. Absent any allegation that a violation of the state statute occurred, his claim fails and is DISMISSED.
IV . Conclusion
Plaintiff Murray fails to adduce any summary judgment evidence to counter that adduced by Defendant Restor, and Restor's Motion for Summary Judgment is GRANTED. Plaintiff's federal and state law claims are DISMISSED.
SO ORDERED,