Summary
holding that offer of severance package by employer in exchange for employee dropping Title VII claim against employer did not constitute extreme or outrageous behavior
Summary of this case from Gray v. Sage Telecom, Inc.Opinion
No. 3:99-CV-1562-P
April 1, 2003
MEMORANDUM OPINION AND ORDER
Patricia O. Musgrove last sued Mobil Oil Corporation in 1997, alleging discrimination because of race. This Court granted summary judgment in favor of Mobil on all counts in late 1999. Ms. Musgrove is again before this Court, seeking redress for race and age discrimination, retaliation, and intentional infliction of emotional distress. She appears pro se, having parted ways with three attorneys since she filed this case. Both parties have moved for summary judgment. Finding Ms. Musgrove to be unable to establish a prima facie case on any of her claims, the Court DENIES her motion. Mobil's Motion for Summary Judgment is GRANTED. Its Motion to Strike is GRANTED in part and DENIED in part.
I. Factual Background
Patricia Musgrove ("Plaintiff") had been employed by Mobil Oil Corporation ("Defendant") for about 18 years when she brought the present suit in the summer of 1999. From November 1995 until July 1997, she held the position of Accounting Assistant II (salary grade 8). In August 1997, she was promoted to Senior Accounting Assistant in Oil Gas Accounting (salary grade 9).
When she filed this suit, Plaintiff was awaiting word on a motion for summary judgment filed in another case she had brought against Defendant and two affiliates in 1997. In the earlier suit, Civil Action No. 3:97-CV-2795-P, she complained that Defendant discriminated or retaliated against her by failing to promote her on at least six different occasions. This Court granted summary judgment in favor of Defendant on all counts by Order dated November 29, 1999. One claim raised by Plaintiff in that suit concerned Defendant's decision not to promote her from the position of accounting assistant to Owner Inquiry Analyst in October 1997 ( see infra). The Court found this claim to be premature, as the Equal Employment Opportunity Commission ("EEOC") had not yet issued a right-to-sue letter.
Defendant Again Decides Not to Make Plaintiff an Owner Inquiry Analyst
On October 14, 1997, Mobil solicited applications for the position of Owner Inquiry Analyst. Persons in that position respond to questions from property owners who sold or leased oil and/or gas rights to Mobil. Required job qualifications include "a working knowledge of oil gas accounting, royalty disbursement policies, ownership transfer of interest procedures and a basic understanding of oil and gas lease agreements." Interested applicants were to possess "[m]ainframe computer skills capable for on-line research and reporting from [a Mobil affiliate] and property management systems. Good PC skills (e.g. Lotus, WordPerfect). Good interpersonal and communication skills." According to Defendant, two positions were open, one for a candidate already a member of the Oil Gas Accounting area (the so-called "technical position") and the other for a candidate outside the department (the "career-development position"). According to Plaintiff, she was told by an interviewer, Ron Bates, that one position was for persons with technical experience and the other would be a developmental position for a person the group would train.
A year earlier, Plaintiff applied for another position as Owner Inquiry Analyst. After she was denied this position, she filed an EEOC charge and sued Mobil for race discrimination. This claim was resolved in Mobil's favor in Plaintiff's previous suit before this Court. Plaintiff notes that the 1996 job posting sought candidates with a bachelor's degree, while the 1997 job posting indicated that Defendant was willing to consider persons with an associate's degree or its equivalent.
At the time of her interview in October 1997, Plaintiff possessed a bachelor's degree in business administration, a working knowledge of royalty-disbursement policies and oil- and gas-lease agreements, and sufficient mainframe computer skills. She admits that she did not have a working knowledge of owner transfer-of-interest procedures. Two other persons from the Oil Gas Accounting area applied for this position. of these, Antoinette Murphy was selected to become an Owner Inquiry Analyst. Murphy, who was initially hired by Mobil in September 1980, is a high school graduate. She had been a Property Associate in the Oil Gas Accounting area since early 1996. Before that, she had been a Contracts Analyst and a DO T Analyst. Defendant contends that Ms. Murphy's experience in a variety of accounting positions in the Oil Gas Accounting area gave her the knowledge needed to respond quickly and correctly to owner inquiries.
The other position was offered to Carolyn Alexander, who was the Senior Accounting Assistant in another department, Volume Accounting. She is black. She was under the age of forty when Defendant promoted her to the position of Owner Inquiry Analyst.
The summary-judgment record indicates that Ms. Murphy is white. Plaintiff is black. Both women were over the age of forty at the time Defendant made its decision to promote Ms. Murphy rather than Plaintiff.
Plaintiff made a timely EEOC charge of race discrimination and retaliation (No. 310-98-0403) on November 14, 1997. She received a right-to-sue letter on April 26, 1999. She filed this suit on July 9, 1999.
Defendant Temporarily Removes Plaintiff's Name from E-Mail Distribution Lists
The second allegation of discrimination/retaliation arises from events that took place the next summer. Plaintiff took medical leave from March 17 to June 22, 1998. At the time, her supervisor was Julian Ledesma. He was aware of her previous charges of discrimination against Mobil. Observing that Plaintiff's electronic mailbox was accumulating unread, outdated, and irrelevant messages during her leave, Ledesma removed her name from two e-mail distribution lists, one a "core" list for regular Mobil employees and the other a "general" list for employees and contractors. It appears that Plaintiff was the only person whose name Ledesma removed from an e-mail distribution list.
A third distribution list was used for contractors only. Plaintiff was not on this list because she was a Mobil employee.
Ledesma was on vacation when Plaintiff returned to work. On July 9, Ledesma realized that he had not restored Plaintiff's name to the e-mail distribution lists. He successfully added Plaintiff's name to the core list, but his effort to add her to the general list failed. Not long thereafter, Plaintiff became aware that she was not receiving e-mails that were being sent to others. She concluded that Defendant had established a separate e-mail list excluding her. She informed Ledesma that she was not on this list. Ledesma restored her name to the general list. In the meanwhile, Plaintiff failed to receive a "developmental tool kit" and information about a diversity meeting. Plaintiff was given the tool kit when she asked for it. She attended the diversity meeting.
Plaintiff filed a timely EEOC charge of race discrimination and retaliation (No. 310990161) on October 26, 1998. A right-to-sue letter issued on September 15, 1999. Plaintiff moved for leave to amend her Complaint to add this claim on November 23, 1999. The motion was granted and the First Amended Complaint was filed on November 30, 1999. Plaintiff is Offered a Continuing Work Assignment as Part of the Merger with Exxon
Plaintiff first attempted to amend her Complaint on November 10, 1999. The Court unfiled her First Amended Complaint for failure to seek leave to file.
The third allegation of discrimination/retaliation arises from Plaintiff's treatment during Mobil's merger with Exxon Corporation. The summary-judgment evidence indicates that the merger involved the elimination of thousands of redundant positions. Over 2,000 employees were terminated immediately. Others were given "permanent" positions at ExxonMobil. A third group of persons, needed for the transition but not permanently, were offered so-called Continuing Work Assignments ("CWA"). Employees offered a CWA would continue to work for Mobil with the same salary and benefits until they were terminated no later than a specified date. Upon the termination of the CWA, the employee would become eligible for severance benefits under the Mobil Corporation Employee Severance Plan (the "CIC Plan"). One condition of receiving benefits under the CIC Plan was a release of claims against Mobil. The summary-judgment evidence indicates that the offer of a CWA was not so conditioned.
"CIC" is an abbreviation for "change in control."
Mobil prepared an assessment template to help its employees determine who should be subject to immediate termination, who should be offered permanent employment, and who should be offered CWA. Employees were rated on such "factors" as Business Results, Functional/Technical Ability, Leadership and Overall Ranking. "Potential" was measured according to an estimate of the highest salary group level that the employee was likely to reach. "Functional orientation" identified the functions the employee was best equipped to perform. Supervisors used the assessments to determine "preliminary ratings" of employees. These ratings were reviewed at so-called Leveling Meetings, where employees in related functions were considered together and ranked by several supervisors.
At the time these decisions were being made, Plaintiff was in the Joint Interest Accounting group, supervised by Ledesma. Ledesma was to transfer to another unit before the Leveling Meeting took place, so he met with Jan Hamlin, his successor, to discuss preliminary ratings. Ledesma ranked Plaintiff third among three persons. One of these persons, a white woman in her twenties, had substantially less experience at Mobil then Plaintiff, but had quite favorably impressed her supervisors with her competence and abilities. The summary-judgment record indicates that Hamlin was authorized to alter these preliminary ratings but chose not to do so.
Hamlin met with two other supervisors — Darrell Vohs (white) and Barbara Foster (black) — to rank the employees in the Joint Interest Accounting and Audit functions. These supervisors ranked Plaintiff fifth among the five persons in her subgroup. They decided to offer Plaintiff a CWA rather than a "permanent" position at ExxonMobil. Under the CWA, Plaintiff would continue to work for Mobil for a period to end no later than December 1, 2001. Her duties would remain essentially the same, as would her compensation and benefits. At the end of this assignment, she would become eligible for CIC Plan benefits, which would have amounted to about two years' pay. Plaintiff claims that Defendant conditioned their offer on her dismissing her pending lawsuit. Defendant denies this.
Also offered CWA's were Abel Hilario (Hispanic, age 25), Joyce Hixson (white, age 54), Shirley Rawls (white, age 59), Carolyn Richard (black, age 51), and Valmer Turner (black, age 43). Plaintiff points out that Christime Schmidt, who is white, was offered a permanent position.
As a rule, employees who refused the offer of a CWA were immediately terminated and offered no separation benefits. Defendant describes a refusal of its offer as a voluntary resignation. On December 14, 1999, Defendant made an exceptional offer to Plaintiff. One, she could decline the CWA and it would be treated as a voluntary resignation. Two, she could accept the CWA and work until Mobil released her and, assuming she met other eligibility requirements (such as releasing claims against Mobil), she could begin receiving separation benefits under the CIC Plan. And three, Mobil would withdraw its offer of a CWA, terminate her employment immediately, and, if she met other eligibility requirements (including release of claims), she could begin receiving separation benefits under the CIC Plan.
In this respect, employees offered CWA's were treated differently from employees terminated immediately. Employees terminated immediately, unlike employees refusing CWA's, could qualify for benefits under the CIC Plan by releasing claims against Defendant. Employees declining CWA's were ineligible for separation benefits.
Defendant gave Plaintiff forty-eight hours to consider their offer. At the time, Plaintiff was represented by counsel, who informed her of the effects of her choices. Her attorney advised her to accept the CWA. Plaintiff disregarded this advice and declined Mobil's offer. Hamlin and Randy Hammonds met with Plaintiff on January 10, 2000. At this meeting, they again discussed with Plaintiff the effect of her options. Plaintiff repeated the options to Hamlin and Hammonds and told them that "she had to finish what she had started and that she chose to leave now" and "she would continue her struggle regardless of outcome or personal impact and that she would be separating now." Mobil terminated her employment. Unwilling to relinquish her claims against Mobil, she was not eligible to receive separation benefits under the CIC Plan. When she filed for unemployment benefits, Defendant challenged the claim on ground that she resigned voluntarily.
Plaintiff filed a timely EEOC charge of discrimination (No. 310A00459) on December 27, 1999, alleging that Defendant discriminated or retaliated against her on account of her age and race by offering her a CWA rather than permanent employment. A right-to-sue letter issued on December 29, 1999. Plaintiff filed another EEOC charge of discrimination (No. 310A00479) on January 3, 2000. The EEOC rescinded its right-to-sue letter related to Charge No. 310A00459 on February 20, 2000, and reopened its investigation into her claims. The EEOC found insufficient evidence of discrimination but reasonable cause to believe Plaintiff had been retaliated against. A right-to-sue letter issued on August 15, 2001. Plaintiff sought leave to amend her complaint on September 28, 2001, to add these claims. The motion was granted and her Second Amended Complaint was filed on December 11, 2001.
II. Procedural Posture
After full opportunity for discovery, the parties each now present a motion for summary judgment. Both motions were filed on January 21, 2003. Defendant's motion asserted that Plaintiff lacked evidence necessary to establish prima facie cases of discrimination or retaliation. In the alternative, Defendant asserted that the summary-judgment record lacked evidence of pretext. Plaintiffs motion, on the other hand, declared that the summary-judgment record indicated her entitlement to judgment as a matter of law on all her claims.
Defendant responded to Plaintiff's motion on February 10, 2003. With its Response, Defendant filed a Motion to Strike Plaintiff's Brief in Support of Motion for Summary Judgment and Summary Judgment Evidence. On March 3, 2003, Plaintiff filed an Amended Motion for Summary Judgment. Plaintiff has informed the Court that this amended motion serves as her response to the Motion to Strike and her reply to Defendants response to her Motion for Summary Judgment, and she declined to make a separate response to Defendant's Motion for Summary Judgment. Defendant reviewed the Amended Motion for Summary Judgment, found substantive changes that appeared to address arguments raised in the Defendant's Response to Plaintiff's Motion, but chose not to interfere with Plaintiff's unorthodox motion practice. To the extent that Defendant's Motion to Strike seeks to exclude Plaintiff's original motion for summary judgment, it is DENIED as MOOT.
In the interest of reaching the merits of the case without bogging down in the niceties of procedure, the Court accepts the Amended Motion for Summary Judgment and (as Plaintiff has requested) relies on it as Plaintiff's exclusive statement of her entitlement to summary judgment. This indulgence is extended at the Court's discretion. As for future submissions to this Court, Plaintiff is ordered to consult the Federal Rules of Civil Procedure and the Local Rules and to follow them to the letter. The Court reserves its right to unfile any future document that fails to conform with those rules.
III. Summary-Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial. Id. All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
When the moving party bears the burden of proof on a matter, "[she] must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [her] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis original). The nonmoving party may but need not present evidence casting doubt on the sufficiency of the moving party's proof. Summary judgment must be denied if a genuine issue of material fact remains in spite of the evidence traduced by the moving party.
When the party moving for summary judgment does not bear the burden of proof, it need only point to a lack of evidence concerning an essential element of the nonmoving party's case. Once the moving party has made this initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The burden-bearing party defending against a motion for summary judgment can defeat the motion by presenting specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case — on which she bears the burden of proof at trial — summary judgment must be granted. Celotex, 477 U.S. at 322-23. The Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
IV. Legal Standard in Race and Age Discrimination Suits
When a plaintiff alleges disparate treatment based on race or age, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) ( citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiff's race or age must have "actually played a role in the employer's decision-making process and had a determinative influence on the outcome." Id. Plaintiffs must prove intentional discrimination through either direct or indirect evidence. Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden-shifting framework. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
To defeat a motion for summary judgment, or to prevail on her own motion, a plaintiff relying on indirect evidence must first establish a prima facie case of discrimination. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). Once established, the prima facie case raises a presumption of discrimination, which the defendant may rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). This burden on the employer is one of production only, not persuasion, involving no credibility assessments. Reeves, 530 U.S. at 142 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id. at 142-43.
The plaintiff bears the burden of persuasion on the issue of discriminatory intent; thus, to survive a motion for summary judgment, a plaintiff relying on circumstantial evidence must point to evidence in the summary-judgment record that would support an inference of unlawful discrimination. Id. at 143. The plaintiff can pursue this objective by showing that the defendant's legitimate nondiscriminatory reason is merely a pretext for discriminatory intent. Id. Pretext can be demonstrated by various types of proof. Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989). One way of proving pretext is to demonstrate that the legitimate reasons offered by the defendant were "unworthy of credence." Tex. Dept. of Comm'y Affairs v. Burdine, 450 U.S. 248, 256 (1981). Other evidence bearing on the issue of pretext might include the defendant's treatment of the plaintiff before the time frame of the current dispute; the defendant's reaction to plaintiffs "legitimate civil rights activities;" and the defendant's "general policy and practice with respect to minority employment." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). Noting that "[t]here are certainly other ways in which [a plaintiff] could seek to prove that [the defendant's] reasons were pretextual," the Supreme Court has indicated that courts should not limit plaintiffs to a precise manner of proving pretext. Patterson, 491 U.S. at 188 (district court erred by requiring jury to find that plaintiff made a particular showing).
This is not to say that a plaintiff automatically survives a motion for summary judgment by presenting any proof of pretext, no matter how meager. See Reeves, 530 U.S. at 148; Russell, 235 F.3d at 223. There may well be instances where the fact issue raised by the plaintiff on the truthfulness of the defendant's explanation is too weak to give rise to an inference of discrimination in light of a record that is replete with uncontroverted, independent evidence that no discrimination occurred; or the record might conclusively reveal some other nondiscriminatory reason for the defendant's decision. Reeves, 530 U.S. at 148. The Court is mindful, however, that such demonstrations — so conclusive as to justify taking the issue out of the jury's hands — are likely to be "uncommon" or "atypical." Id. at 154-155 (Ginsburg, J., concurring).
In sum, a nonmoving plaintiff can defeat a motion for summary judgment in two ways. One is by creating a fact issue concerning direct evidence of discriminatory intent. The other is by submitting evidence which, taken as a whole, creates a fact issue as to whether the employer's stated reasons actually motivated the employer. Factors relevant to this inquiry include "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).
If a plaintiff survives the defendant's motion for summary judgment, she may prevail on her own motion by showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. The key material fact in discrimination cases is the defendant's discriminatory intent and, to win her summary-judgment motion, a plaintiff relying on circumstantial evidence must show that the evidence supports an inference so plain that the Court can find discriminatory intent to have been established "beyond peradventure." Fontenot, 780 F.2d at 1194. Short of that, a plaintiff surviving the defendant's summary-judgment motion must present her case to the finder of fact to resolve the question of defendant's discriminatory intent.
V. Plaintiff Cannot Establish Prima Facie Cases of Discrimination or Retaliation A. Charge No. 310-98-0403
The first EEOC charge (No. 310-98-0403) arises from Defendant's decision not to promote Plaintiff to the position of Owner Inquiry Analyst in October 1997. Defendant claims that Plaintiff can establish neither a prima facie case of discrimination nor a prima facie case of retaliation. Plaintiff claims that the summary-judgment evidence demonstrates as a matter of law that Defendant refused to promote her in retaliation for her prior complaints of race discrimination.
In the context of an alleged failure to promote, a prima facie case is established if the plaintiff provides evidence that: (i) she is a member of a protected class; (ii) she sought and was qualified for an available employment position; (iii) she was not promoted; and (iv) the employer promoted or hired someone (or continued to seek applicants) from outside of her protected class. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). Arguing that Plaintiff cannot show that she was qualified for the position in question, Defendant points to her admission at deposition that she lacked a working knowledge of ownership transfer-of-interest procedures. In response, Plaintiff notes that the two persons promoted lacked even an associate's degree and thus were not qualified because the job posting indicated that candidates should at least hold an associate's degree. The evidence shows that the successful candidates, unlike Plaintiff, possessed a working knowledge of ownership transfer-of-interest procedures. The fact that Defendant promoted persons who lacked an associate's degree does not overcome the fact that Plaintiff was herself not qualified. Defendant' Motion for Summary Judgment is GRANTED with respect to the discrimination claim raised in EEOC Charge No. 310-98-0403.
The Court also notes that the job posting states that Defendant sought candidates with that "education level or equivalent." The record indicates that Defendant considered the successful candidates "fully qualified," which apparently means they somehow possessed the "equivalent" of an associate's degree.
A prima facie case of retaliation may be established by proof that (1) the plaintiff engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) there was some causal link between the protected activity and the adverse action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). "Obviously, an employee may not complain that not obtaining a position was retaliation if she was not qualified for that position in the first place." Mattern v. Eastman Kodak Co., 104 F.3d 702, 709 (5th Cir. 1997) (citing Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990)). Defendant' Motion for Summary Judgment is GRANTED with respect to the retaliation claim raised in EEOC Charge No. 310-98-0403.
B. Charge No. 310990161
Defendant claims that Plaintiff can establish neither a prima facie case of discrimination nor a prima facie case of retaliation in connection to the events giving rise to EEOC Charge No. 310990161. Plaintiff claims that Defendant's temporary removal of her name from the general e-mail distribution list constituted unlawful discrimination or retaliation. Defendant contends that this is not an adverse employment action. The Court agrees. The evidence is undisputed that Defendant's action did not affect Plaintiff's job duties, compensation, or benefits. It did not involve an "ultimate employment decision" such as hiring, granting leave, discharging, promoting, or compensating. Hunt v. Rapides Healtheare Sys., LLC, 277 F.3d 757, 769 (5th Cir.) (citing Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999); Mattern, 104 F.3d at 708; Dollis v. Rubin, 77 F.3d 777, 781-782 (5th Cir. 1995)). It was therefore not the kind of action that Title VII was designed to address. Dollis, 77 F.3d at 781-782. Summary judgment is GRANTED in favor of Defendant on both the discrimination claim and the retaliation claim raised in EEOC Charge No. 310990161.
C. Charge Nos. 310A00459 and 310A00479
Defendant contends that Plaintiff can establish neither a prima facie case of age or race discrimination nor a prima facie case of retaliation in connection with its offering Plaintiff a continuing work assignment. Plaintiff claims that the summary-judgment evidence demonstrates as a matter of law that Defendant discriminated against her because of her race and age and retaliated against her by ranking her low among her peers, offering her a continuing work assignment rather than a permanent position at ExxonMobil, wrongly terminating her, and denying her benefits under the CIC Plan. The Court finds that Plaintiff cannot make a prima facie case of discrimination or retaliation because she cannot show that she was subjected to an adverse employment action.
This case does not fit neatly within the categories of disparate-treatment claims considered by the courts. It does not involve a discharge. See Norris v. Hartmaxx Specialty Stores, 913 F.3d 253, 254 (5th Cir. 1990) (listing elements of prima facie case for disparate treatment case involving discharge). Although thousands of Exxon and Mobil employees were immediately discharged in order to eliminate unnecessary duplication of jobs, Plaintiff was not discharged as part of a reduction in workforce. See Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995) (listing elements of prima facie case where employee is discharged but not replaced). Rather, Plaintiff was offered a continuing work assignment. That is, she was given the opportunity to continue working, with the same responsibilities, the same pay, the same benefits. The only catch was that the assignment would terminate no later than December 1, 2001. She was not offered a "permanent" assignment with no specified termination date. And she was not immediately terminated against her will.
Plaintiff contends that Defendant's offering her a CWA rather than a "permanent" position is an adverse employment action. As noted above, a prima facie case of discrimination requires proof not just of an employment action, but of an adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708-709 (5th Cir. 1997). "An employment action that is neutral or beneficial is insufficient to establish a prima facie case" of discrimination or retaliation. Pegram v. Honeywell Int'l, Civ. Action No. 3:01-CV-0854-P, 2003 U.S. Dist. LEXIS 1726, at *22 (N.D. Tex. Feb. 6, 2003) (Solis, J.). Whether an employment action is "adverse" is an objective — not a subjective — determination. Id. See also Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1448-49 (11th Cir. 1998) (holding that an ADA plaintiff must show that a reasonable person in his position would view the employment action as adverse).
Noting that "Title VII was designed to address ultimate employment decisions," the Fifth Circuit has hesitated to consider adverse those actions which fall short of "hiring, granting leave, discharging, promoting, [or] compensating." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (quoted in Mattern, 104 F.3d at 707) (emphasis added). This is not to say that something short of an ultimate decision cannot qualify as an adverse employment action. But, in determining whether, objectively, Plaintiff was subjected to an adverse employment action by being offered a CWA, it is necessary for the Court to consider whether this offer constituted an ultimate decision. As Plaintiff concedes, "Texas is an employment-at-will state; subject to exceptions not relevant in this case, employment is terminable at any time by either party, with or without cause, absent an express agreement to the contrary." City of Odessa v. Barton, 967 S.W.2d 834, 835 (Tex. 1998). Plaintiff admits that she was not under contract to work for a specified period of time. Rather, before the merger, Plaintiff was subject to termination at anytime, with or without cause, so long as Defendant conformed with antidiscrimination laws. Had Defendant offered her a "permanent" position, she would have remained subject to immediate termination. Had she accept the offer of a CWA, the same would be true. Without a contract to employ Plaintiff for a specified period of time, any promise of "permanent" employment (however implicit) would have been illusory. See generally Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642 (Tex. 1994). ExxonMobil could have terminated Plaintiff at will regardless which kind of offer it made her. Thus, from the perspective of an objective observer considering whether the Defendant's offer of a CWA constituted an ultimate decision, the Court finds that it was not. From this perspective, there is no distinction between Defendant's offer of a CWA and an offer of a "permanent" position.
Furthermore, the CWA did not prevent Defendant from making Plaintiff another offer down the road, one not specifying a potential termination date. Just as Defendant was not obligated to employ Plaintiff until December 1, 2001, so Defendant was under no obligation to terminate her employment on or before December 1, 2001.
Plaintiff's circumstances are similar to situations in which an employee complains that a lateral transfer constituted an adverse employment action. This case law holds that a lateral transfer is not an adverse employment action unless it amounts to
a materially adverse change in the terms and conditions of employment [which is] more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities . . .Crady v. Liberty Nat. Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993). "`If a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not render the denial or receipt of the transfer [an] adverse employment action.'" Pegram, 2003 U.S. Dist. LEXIS 1726, at *22 (quoting Sanchez v. Denver Public Sch., 164 F.3d 527, 532 n. 6 (10th Cir. 1998)).
It is apparent that the offer itself did not constitute an ultimate decision. And it is undisputed that the offer of a CWA entailed no change in Plaintiff's responsibilities, her compensation, or her benefits. From an objective perspective, regardless whether Plaintiff considered this an adverse action, the Court concludes that merely being offered a CWA does not constitute an adverse employment action. Whether being terminated after accepting a CWA is an adverse employment action is another matter entirely, one not before this Court because Plaintiff declined Defendant's offer. The Court concludes that Plaintiff cannot establish a prima facie case of discrimination or retaliation because she lacks evidence of an adverse employment action. Summary judgment is GRANTED in favor of Defendant with respect to the claims made in EEOC Charge Nos. 310A00459 and 310A00479.
Assuming arguendo that Plaintiff can raise a prima facie case of discrimination or retaliation, Defendant offers a legitimate, nondiscriminatory reasons for offering Plaintiff a CWA rather than a "permanent" position. As part of its merger with Exxon, Mobil underwent a companywide assessment of personnel, ranking all employees (below salary grade 19) according to business results, functional/technical ability, leadership, advancement potential, and functional orientation. Plaintiff was ranked low by her former supervisor (Ledesma) and downgraded by the committee of supervisors conducting the Leveling Meeting. According to one of those supervisors, the committee "believed that Musgrove was in the lowest tier of employees." Hamlin Aff. ¶ 6. The Court finds that this reason would satisfy Defendant's burden of production, negate the presumption raised by a prima facie case, and put Plaintiff in a position of having to point to facts that prove or at least raise an issue of pretext.
In response, Plaintiff contends that the reasons given for ranking her low are subjective and she challenges the veracity of these reasons by suggesting that they do not rest on "a clear and reasonably specific factual basis." Chapman v. AI Transport, 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc) (quoted in Pl.'s Br. at 36). The Court recognizes that some of the criteria considered by Defendant (e.g., potential, leadership) are subjective and that no ranking of employees is free from subjective biases. But to prevail on summary judgment, Plaintiff must point to specific evidence in the record to raise a fact issue concerning Defendant's intent (to discriminate or retaliate). It is not sufficient to point to a lack of proof supporting Defendant's claims; Plaintiff bears the burden of persuasion, not Defendant, and it is she who must ultimately prove her case.
Plaintiff does point to the following documents which, she contends, show the falsity of Defendant's proffered reasons: Annual Performance and Development Summaries dated November 1991, January 1993, and January 1994, and a Forecast of Potential, dated April 1995. Defendant objects to the Court's consideration of these documents on grounds that they are unauthenticated. Def.'s Mot. to Strike at 3 (citing Lisle v. United States, No. 94-17197, 1995 U.S. App. LEXIS 38198, at *4 (9th Cir. 1995)). See also Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) ("[U]nauthenticated documents cannot be considered on a motion for summary judgment."). Although some leniency is generally accorded pro se litigants, the Court holds that Rule 56 is fairly clear about the kinds of evidence that can be relied upon in summary-judgment practice. This evidence is not competent for summary-judgment purposes and cannot be relied upon to create a fact issue.
Plaintiff points to no other evidence tending to show that Defendant's evaluation of her business results, her technical or functional ability, or her potential for advancement was a lie. Plaintiff relies heavily on the fact that her supervisors were aware that she had filed claims in the past. But, without more, mere knowledge that an employee has filed EEOC charges is insufficient to raise a question of fact concerning intent to retaliate. As for intent to discriminate, the Court notes that two of the three persons ranking Plaintiff at the Leveling Meeting were African American, and that whites as well as African Americans were offered CWA's.
In sum, the record lacks competent summary-judgment evidence tending to show that Defendant's reasons offering her a CWA rather than a "permanent" position were false or otherwise pretextual. Suspicions and conclusory allegations are insufficient to create a fact question at the summary-judgment stage. Thus, even if Plaintiff can establish a prima facie case — and the Court reiterates that she has not — she cannot raise a fact issue concerning Defendant's intent to discriminate or retaliate against her by offering her a CWA rather than a "permanent" position.
VI. Claims under Section 1981
Section 1981 provides that "all persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981 (a) (2001). Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997). Thus, in order to establish a violation under § 1981, the plaintiff must prove a prima facie case of intentional discrimination. See Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997) (citing Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)). The plaintiff must prove that (1) she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned the "making and enforcing" of a contract. See id. (citing Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994)); see also Daniels v. Worldcom Corp., No. CIV.A. 3:97-CV-0721-P, 1998 WL 91261 at *5 (N.D. Tex. Feb. 23, 1998) (Solis, J.) (acknowledging the need for plaintiff to show the existence of a contract between herself and defendant in order to maintain a § 1981 action).
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. See 42 U.S.C. § 1981 (b) (2001).
Nothing in the summary-judgment evidence indicates that Plaintiff had an employment contract with Plaintiff. Thus, her claims of employment discrimination cannot by themselves support a claim under § 1981. However, Plaintiff makes two other complaints of discrimination that concern the making and enforcing of a contract. First, she claims in her EEOC charge that Defendant's offer of a CWA was conditioned on her releasing any and all claims against it. The summary-judgment evidence does not support this allegation. Plaintiff need not have released any claims against Defendant to accept the offer of a CWA and work for Defendant until she was terminated.
Court expresses no opinion as to whether, by accepting Defendant's offer of a CWA, Plaintiff would have had an enforceable employment contract with Defendant.
Plaintiff's second complaint is that Defendant required her to release any and all legal claims against Defendant in order to receive benefits under the CIC Plan. In her Motion, Plaintiff describes this condition as an attempt by Defendant to "blackmail" her into giving up her civil rights. Plaintiff also complains that Defendant's refusal to give her severance benefits was outrageous conduct entithng her to relief for intentional infliction of emotional distress. Plainly, it appears that Plaintiff believes that Defendant was under an obligation, contractual or otherwise, to provide her severance benefits and was threatening to withhold those benefits unless she released her legal claims. But nothing in the summary-judgment record indicates that Defendant was under any such obligation. Plaintiff presents no evidence of a contract between Defendant and herself to provide severance benefits. Absent competent summary-judgment evidence to the contrary, it would appear that Defendant was free to offer a severance package on whatever terms it desired. It could require any kind of lawful consideration in exchange for giving Plaintiff a benefits package.
Based on the summary-judgment record, it appears that Defendant sought to enter into a contract with Plaintiff whereby it would give her generous benefits in exchange for her release of any claims she might have against it. This is not unlike a settlement agreement, where one party agrees to release its legal claims against the other in exchange for some valuable thing, such as money or an agreement not to do something anymore. Here, Plaintiff would eventually have a choice. At some point in the future, she could accept Defendant's offer of a severance package and release any legal claims she had against Defendant, or she could decline the offer and pursue her claims of discrimination and retaliation in court. The record indicates that it was not necessary in late December 1999 for Plaintiff to make this choice, since she might have worked for Defendant another twenty-three months, pursuing her discrimination and retaliation claims the entire time. Rather than accept an offer of continuing employment and a future opportunity to choose between a separation package and litigating her discrimination and retaliation claims, Plaintiff chose to walk away with nothing but her legal claims. The record clearly indicates that she did so with full knowledge of the consequences. There was no "blackmail." There was only ordinary contractual negotiation.
The summary-judgment record contains no direct evidence and cannot support an inference by circumstantial evidence that Defendant discriminated against Plaintiff because of her race in connection with these matters of contract. In fact, it appears that Defendant discriminated in favor of Plaintiff by giving her an option not available to other employees. Any other employee who denied Defendant's offer of a CWA would walk away empty handed, with no opportunity to receive the CIC Plan severance benefits. Defendant told Plaintiff that, if she chose to decline their offer of a CWA, it would withdraw that offer and terminate her immediately, allowing her to become eligible for severance benefits under the CIC Plan just like the other Mobil employees who were not offered a CWA or a "permanent" position. This special offer is by no means an interference with Plaintiff's right to contract. Defendant's conduct was not unlawful under 42 U.S.C. § 1981. Summary judgment is GRANTED in favor of Defendant on all § 1981 claims.
VII. Intentional Infliction of Emotional Distress
To recover for intentional infliction of emotional distress, a plaintiff must prove that (1) the defendant acted intentionally or reckless (2) the defendant's conduct was extreme or outrageous; (3) the defendant's action caused the plaintiff emotional distress; and (4) the plaintiffs emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Proof of the second element — extreme and outrageous conduct by the defendant — is found in conduct that "exceed[s] all possible bounds usually tolerated by civilized society and is calculated to cause serious emotional distress." Cook v. Fidelity Investments, 908 F. Supp. 438, 440 (N.D. Tex. 1995). Proof that a defendant merely had criminal or tortious intent or engaged in illegal conduct is usually insufficient to state a claim for intentional infliction of emotional distress. Cook, 908 F. Supp. at 441. In the employment context, only the most unusual cases involve conduct that can give rise to a claim for an independent claim intentional infliction of emotional distress. Id. at 440. See also Musgrove v. Mobil Bus. Resources Corp., Civ. Action No. 3:97-CV-2795-P, 1999 U.S. Dist. LEXIS 23106, at *21 (N.D. Tex. Nov. 29, 1999) (Solis, J.). Mere proof that an employer unlawfully discriminated against a employee is insufficient to establish "extreme and outrageous conduct."
In her Second Amended Complaint, Plaintiff makes only cursory allegations of intentional infliction of emotional distress, claiming that "the treatment afforded to her by Defendant was outrageous and intentionally designed to cause Plaintiff emotional stress and distress." Pl's Second Am. Compl. ¶ 14. In her Amended Motion for Summary Judgment and supporting brief, the conduct complained of is not plainly expressed. See Pl.'s Am. Mot. at 3-4 7; Br. at 43-44. The Court understands Plaintiff to consider the following conduct to be outrageous and extreme: Defendant intentionally ranked her low so that she would be offered a CWA rather than a permanent position, then terminated her, blackmailed her in an attempt to induce her to drop her legal claims against Defendant, denied her benefits under the CIC plan, and denied her unemployment benefits. At deposition, Plaintiff identified the following conduct as the basis of her claim of intentional infliction of emotional distress: Defendant (1) hired a law firm, (2) conspired with her former attorneys Victor Lander and William Zachary-Starr to make sure certain causes of action were not filed in the United States District Court, (3) terminated her employment after 19 years of service, (4) failed to give her severance benefits, (5) denied her an opportunity to develop and grow within the organization, (6) compelled her to speak to employee relations and never did anything about her complaints, (7) forced her to go to the EEOC to file numerous charges of retaliation, (8) denied her the Owner Inquiry Analyst position and the another promotion, (9) temporarily denied her the developmental tool kit, and (10) knowingly disregarded Title VII by allowing supervisors not to advance her professionally.
Plaintiff testified that the claim outlined in EEOC charge no. 310A00479 was not filed with the Court.
The Court finds, as a matter of law, that none of the allegedly tortious acts, by themselves or considered en masse, with the possible exception of the alleged blackmail, would satisfy the outrageous-and-extreme element of a claim for an intentional infliction of emotional distress. Assuming that blackmail would be sufficiently outrageous and extreme, the summary-judgment record lacks any evidence of blackmail. As discussed above, Defendant merely made an offer (a generous severance package in exchange for a release of claims) that Plaintiffrefused. This conduct is neither outrageous nor extreme. See generally Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991) (describing conduct that would and would not satisfy this element in an employment discrimination case).
Because Plaintiff cannot state a claim for intentional infliction of emotional distress. Defendant's Motion for Summary Judgment is GRANTED on this matter.
VIII. Conclusion
Plaintiff cannot make a prima facie case of discrimination in connection with Defendant's decision not to hire her as an Owner Inquiry Analyst because she admits she lacked one of the qualifications for the position. She cannot make a prima facie case of discrimination in connection with her removal from an e-mail distribution list because Defendant took an adverse employment action against her. She cannot make a prima facie case of discrimination in connection with Defendant's offer of a continuing work assignment rather than a "permanent" position because this offer was not an adverse employment action. Even if Plaintiff could make a prima facie case, she has failed to present competent summary-judgment evidence sufficient to raise a fact question as to pretext. Plaintiff's employment-discrimination claims under § 1981 fail as a matter of law because she did not have an employment contract with Defendant. Her other claims under § 1981 fail because there is no evidence that Defendant interfered with her right to contract on account of her race. Finally, there is no evidence that Defendant engaged in the kind of extreme and outrageous conduct that would support a claim for intentional infliction of emotional distress. Defendant is entitled to judgment as a matter of law on all claims. Defendant's Motion to Strike is GRANTED in part and DENIED in part. Defendant's Motion for Summary Judgment is GRANTED in its entirety. Plaintiff's Motion is DENIED in its entirety.