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relying on plaintiff's response to defendant's first motion for summary judgment when ruling on defendant's second motion for summary judgment on the same claims, where plaintiff failed to file a response to defendant's second motion
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Case No. 3:01-CV-0056
April 7, 2003
Donald W. Hill, Dallas, TX, For Plaintiffs.
John Gray Harrison, Anne Patricia Terwilliger of Ogletree, Deakins, Nash, Smoak Stewart, Dallas, TX, For Defendants.
MEMORANDUM OPINION AND ORDER
Defendant Kimberly-Clark Corporation ("Kimberly-Clark") has filed a Second Motion for Summary Judgment on Plaintiff's § 1981 Retaliation and Discrimination Claims (Docket No. 43). Having considered the parties' submissions and applicable law, the Court finds that Defendant's Second Motion for Summary Judgment should be GRANTED.
BACKGROUND
Kimberly-Clark is a global manufacturer of consumer products. Plaintiff Tommy Ridley ("Ridley"), an African-American, was an assistant production operator or machine operator at Kimberly-Clark's Paris, Texas facility. In early to mid-October 2000, Kimberly-Clark provided diversity training to all employees covering Kimberly-Clark's prohibition against making racial comments in the workplace. On October 28, 2000, the machine on which Ridley was assigned malfunctioned. Ridley's co-worker, David Brady ("Brady"), remarked that "the machine's never going to run the way we-ve got it nigger-rigged." In deposition testimony, Ridley stated that he and Brady "got along pretty good" and that the comment was not directed toward anyone, but Ridley found it offensive.
On October 30, 2000, Ridley notified Operations Manager Rob Beattie ("Beattie") of Brady's comment and Kimberly-Clark gave Brady a written warning. Ridley does not complain of any other racial comments or misconduct by Brady or any other employees during his eight and one-half years of employment.
Kimberly-Clark's Paris facility operates 24 hours per day and assistant production operators, like Ridley, work 12-hour shifts, either 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m. An employee's hours are recorded automatically into Kimberly-Clark's computer system. If an employee is late to work, it his responsibility to change the hours in the computer. Kimberly-Clark's personnel guidelines prohibit the falsification of time records and lying to management.
The Paris facility does not maintain a procedure by which employees must punch in and out. Rather, there are recorded automatically in accordance with the work schedule.
Kimberly-Clark's Paris facility has discharged seven Caucasian and one Hispanic employee for dishonesty, theft, or falsification of records between July 1, 1995 and January 16, 2001.
On January 6, 2001, Ridley was scheduled to begin his shift at 7:00 a.m. At 6:58 a.m., Ridley called Kimberly-Clark's shift associate and informed him that he was running late. The Shift Superintendent then waited by the entrance for Ridley's arrival. At 7:12 a.m., Ridley had not arrived, and the Shift Superintendent left the area. The Team Leader then saw Ridley arrive at the facility at 7:15 a.m. and he noted this in a log. Ridley claims that he was at work at approximately 6:58 a.m., picked up his tools, and went to his machine. The first thing Plaintiff did when he arrived at his machine was sign in on the inspection stand. Ridley wrote "7:10" on the sign in sheet.
Ridley has provided an affidavit of Connie Chamberlein, an employee of Kimberly-Clark, stating that she saw Ridley at work at approximately 6:57 a.m. on January 6, 2001.
In the proceeding days, Ridley was confronted by management regarding the time discrepancy. Ridley denied being late and refused to change his time record. On January 16, 2001, Kimberly-Clark terminated Ridley's employment when it concluded that he was late to work on January 6, 2001, failed to account for his late arrival, and lied to company officials regarding his tardiness.
On January 18, 2001, Ridley filed a retaliation charge with the EEOC based upon his January 16, 2001 termination. The EEOC investigated this allegation but found no cause to believe a violation of Title VII had been committed and dismissed the charge. On November 21, 2001, Ridley filed the instant lawsuit alleging racial discrimination in violation of 42 U.S.C. § 1981, 2000e(a) and (d), and 2000e-5(f) et seq., and in retaliation for his opposition to Kimberly-Clark's allegedly discriminatory practices.
The Court previously granted Kimberly-Clark's Motion for Summary Judgment on Ridley's race discrimination and retaliation claims asserted under Title VII. The Court denied Kimberly-Clark's Motion for Summary Judgment on Ridley's race discrimination under § 1981 holding that Kimberly-Clark did not adequately brief this issue. On March 10, 2003, Kimberly-Clark filed the instant Second Motion for Summary Judgment on Ridley's § 1981 racial discrimination claim. Specifically, Kimberly-Clark contends that summary judgment is warranted because: (1) Ridley cannot establish the required causal connection between the termination and his race or claimed protected activity and (2) Ridley cannot show each of Kimberly-Clark's legitimate, non-discriminatory, and non-retaliatory reasons for the discharge were pretextual. To date, Ridley has not responded to Defendant's Second Motion for Summary Judgment. See 14 Mar. 2003 Order (Docket No. 47) (ordering Plaintiff to respond to Defendant's Second Motion for Summary Judgment on or before March 28, 2003). Thus, for purposes of this ruling, the Court will rely on Ridley's Response to Defendant's First Motion for Summary Judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper "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). The moving party bears the initial burden of "informing the Court of the basis of its motion" and identifying those portions of the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Once the moving party meets its burden, the nonmoving party must "go beyond the pleadings" and designate "specific facts" in the record "showing that there is a genuine issue for trial." Id. at 324. An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
The primary inquiry here is whether the material facts present a sufficient disagreement as to require a trial, or whether the facts are sufficiently one-sided that one party should prevail as a matter of law. Anderson, 477 U.S. at 251-52. The substantive law of the case identifies which facts are material. Id. at 248. Only disputed facts potentially affecting the outcome of the suit under the substantive law preclude the entry of a summary judgment. Id. Mere conclusory allegations, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
§ 1981 RETALIATION CLAIM
Kimberly-Clark has moved for summary judgment on Ridley's alleged § 1981 retaliation claim. The Court, after analyzing the pleadings, did not believe that Ridley was asserting a § 1981 retaliation claim. Ridley's Complaint reads: "the Defendant has discriminated against Plaintiff with respect to his compensation, terms conditions, and privileges of employment, because of Plaintiff's race in violation of 42 U.S.C. § 1981, 2000e-(a) and (d) and 2000e-5(f) et seq[.] and in retaliation for Plaintiff's opposition to Defendant's discriminatory practices." Further, nowhere in Plaintiff's Response to Defendant's Motion for Summary Judgment does Ridley mention a § 1981 retaliation claim. Nevertheless, even if Ridley is asserting a § 1981 retaliation claim, it fails for the same reason his Title VII retaliation claim failed-Ridley did not engage in a protected activity.
DISPARATE TREATMENT
Once again, it is not clear from Ridley's Complaint that he is alleging disparate treatment. However, Kimberly-Clark have moved for summary judgment on this claim. Therefore, this Court will address this issue. To establish disparate treatment a plaintiff must show that the employer "gave preferential treatment to [another] employee under `nearly identical' circumstances"; that is, "`that the misconduct for which [the plaintiff] was discharged was nearly identical to that engaged in by . . . [other] employee[s].'" Okoye v. The Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (citations omitted). Ridley has admitted that he cannot identify any preferential treatment to another employee under "nearly identical" circumstances. In fact, the evidence reveals the opposite. Between July 1, 1995, and the date of Ridley's discharge, Kimberly-Clark terminated the employment of eight other employees at its Paris, Texas facility for dishonesty, theft, or falsification of records. Seven of those eight employees were white and one was Hispanic. Accordingly, Ridley's disparate treatment claim fails. See, e.g., Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (plaintiff failed to establish prima facie case because he could not show white employees were treated differently under nearly identical circumstances).
§ 1981 RACIAL DISCRIMINATION CLAIM
The same burden shifting framework applicable to Title VII claims for race discrimination applies to Ridley's § 1981 racial discrimination claim. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996). Under this burden shifting framework, as laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), Ridley must first establish a prima facie case of racial discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Once a prima facie is made, a presumption of discrimination arises, and the burden of production shifts to the employer to respond with a legitimate, nondiscriminatory reason for its decision. McDonnell Douglas, 411 U.S. at 802. If the employer carries its burden, the presumption of discrimination dissipates and the burden of production then shifts back to the plaintiff to demonstrate that the defendant's articulated reason was merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511-12 (1993). Although the McDonnell Douglas framework shifts the burden of production between the plaintiff and the defendant, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citation omitted).
i.) Prima Facie Case
To prove a prima facie case of racial discrimination under § 1981 and defeat summary judgment, Ridley must demonstrate that he: (1) was a member of a protected class; (2) was qualified for his position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class. See Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 403 (5th Cir. 1999). Kimberly-Clark did not argue in either of its motions for summary judgment that Ridley failed to establish any of the elements of prima facie case of racial discrimination under § 1981. Nevertheless, the Court will analyze whether Ridley has established a prima facie case. First, Ridley is a member of a protected class, he is an African-American. Second, Ridley was qualified for his position, he worked at Kimberly-Clark for over eight years. Third, Ridley was subjected to an adverse employment action, his employment was terminated. Finally, there is no evidence or allegations that Kimberly-Clark replaced Ridley with an African-American employee. See Nieto v. LH Packing Co., 108 F.3d 621, 624 n. 7 (failure to meet the replacement requirement of the prima facie case is not necessarily fatal). Accordingly, the Court finds that Ridley has demonstrated a prima facie case of racial discrimination under § 1981.
ii.) Legitimate, Non-Discriminatory Reason
Kimberly-Clark has set forth an adequate non-discriminatory reason for the adverse employment action. See Reeves, 530 U.S. at 142. Kimberly-Clark may satisfy its burden merely by producing any evidence, "which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Center, 509 U.S. at 509. To satisfy this burden of production, Kimberly Clark offers the following evidence: its Personnel Guideline; the affidavit of Charles Lynch, Plant Manager for Kimberly-Clark's Paris, Texas facility; the affidavit of Johnny McFadden, Shift Associate in the Shift Superintendent's office at Kimberly-Clark's Paris, Texas facility and; the affidavit of Johnny Cook, Team Leader at Kimberly-Clark's Paris, Texas facility. Specifically, Kimberly-Clark has provided evidence that it has strict policy prohibiting tardiness and dishonesty in any form. On January 16, 2001, Kimberly-Clark terminated Ridley's employment when it concluded that he was late to work on January 6, 2001, failed to account for his late arrival, and lied to company officials regarding his tardiness. Based on this evidence, the Court concludes that Kimberly-Clark has met its burden by producing evidence that it terminated Ridley's employment for a legitimate, nondiscriminatory reason.
iii.) Pretext
Because Kimberly-Clark has carried its burden of articulating a legitimate, nondiscriminatory reason for its actions, to prevail, Ridley must provide some evidence, direct or circumstantial, to rebut Kimberly-Clark's proffered reasons and allow the jury to infer that Kimberly-Clark's explanation was a pretext for discrimination. See, e.g., Reeves, 530 U.S. at 143; Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999) (quoting Scott v. Univ. of Miss., 148 F.3d 493, 504 (5th Cir. 1998)). "[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason" for the employer's decision. Hicks, 509 U.S. at 515. If "the evidence of pretext is substantial, the plaintiff may create a genuine issue of material fact without independent evidence that discrimination was the real reason for the adverse employment action." Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (citing Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997)); see Reeves, 530 U.S. at 143.
"The question for summary judgment is whether a rational fact finder could find that the employer discriminated against the plaintiff on the basis of [race, national origin, or age]." Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001) (citing Hicks, 509 U.S. at 511). Hence, the plaintiff's assertion of pretext must be substantiated by more than self-serving, subjective, or speculative allegations; a plaintiff must provide sufficiently specific, substantive reasons for her claim of pretext. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993) If the evidence presented is "not so persuasive so as to support an inference that the real reason was discrimination," then the plaintiff has failed to meet her burden. Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000). "Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory." Reeves, 530 U.S. at 148.
"[I]n attempting to satisfy this burden, the plaintiff . . . must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253). "[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). "In making this determination, a court should consider `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.'" Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (quoting Reeves, 530 U.S. at 148-49).
A trier of fact is permitted to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Reeves, 530 U.S. at 147. "[M]ore likely than not, a showing of pretext will lead to an inference of discrimination." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000). As the Supreme Court stated in Hicks:
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.
Hicks, 509 U.S. at 511 (emphasis in original). Accordingly, a plaintiff is not required, as matter of course, to introduce additional, independent evidence of discrimination to avoid summary judgment. See Reeves, 530 U.S. at 148.
"Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148. However, such a showing will not always be enough to sustain a finding of liability. See id.; Russell, 235 F.3d at 223 (citing Hicks, 509 U.S. at 524. "[P]roof that `the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'" Reeves, 530 U.S. at 146 (quoting Hicks, 509 U.S. at 524). "In other words, `[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'" Id. (quoting Hicks, 509 U.S. at 519). The Fifth Circuit has repeatedly held that "discrimination suits still require evidence of discrimination." See, e.g, Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000).
"[T]here may be instances, although rare, where a showing of pretext would not be sufficient to infer discrimination." Russell, 235 F.3d at 223. "For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination has occurred." Reeves, 530 U.S. at 148. "A mere scintilla of evidence of pretext does not create an issue of material fact in all cases." Crawford, 234 F.3d at 902-03. Therefore, it is "possible for a plaintiff's evidence to permit a tenuous inference of pretext and yet be insufficient to support a reasonable inference of discrimination." Id. at 903. "The determination must be made on a case-by-case basis, depending on the nature, extent, and quality of the evidence, as to whether a jury could reasonably infer discrimination." Id. A showing of pretext "must extend beyond casting doubt on the reasonableness of the employer's action; otherwise, the law would be converted to a `just cause' provision for the protected class of employees, an effect that Congress clearly did not intend." Hanchey v. Energas Co., 925 F.2d 96, 98 (5th Cir. 1990) (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 n. 6 (5th Cir. 1988).
Ridley essentially argues, albeit inferred by this Court, that pretext must exist because he has provided an affidavit of Connie Chamberlein, an employee of Kimberly-Clark, stating that she saw Ridley at work at approximately 6:57 a.m. Thus, Ridley asserts that Kimberly-Clark's rationale in terminating his employment is untrue. However, "[t]he issue is whether [Kimberly-Clark's] perception of [Ridley's] [tardiness], accurate or not, was the real reason for [his] termination." Evans, 246 F.3d at 355 (quoting Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 1999)); Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir. 1996) (finding that an employer's employment decision is protected from Title VII liability if it is made with reasonable belief and in good faith). As discussed above, Kimberly-Clark has presented numerous affidavits, if taken together, establish that Kimberly-Clark reasonably believed that Ridley was late to work on January 6, 2001, failed to account for his late arrival, and lied to company officials regarding his tardiness. Here, "[Ridley's] evidence to rebut the non-discriminatory reasons offered by [Kimberly-Clark] is not so persuasive so as to support an inference that the real reason was discrimination." Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000). This Court finds an overall lack of any evidence of discriminatory intent. Discrimination suits still require evidence of discrimination. On this record, Ridley has failed to meet his burden of producing any evidence of discrimination sufficient to survive summary judgment, and his evidence to rebut the non-discriminatory reasons offered by Kimberly-Clark is not so persuasive so as to support an inference that the real reason was discrimination.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant's Second Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.