Opinion
Civil Action No: 00-2404 Section: "R"(2)
November 30, 2001
ORDER AND REASONS
Before the Court is defendant Park `N Fly's motion for summary judgment. For the reasons stated below, the Court grants defendant's motion.
I. Factual Basis
This case arises from the termination of Alphonse Washington's employment with defendant Park `N Fly. Washington was hired by Park `N Fly to work as a driver/cashier at its lot in New Orleans in July 1994. Washington worked for Park `N Fly as a "standby" employee, which meant that he worked weekends and nights as needed. Washington was a member of the Teamsters Local Union Number 270, which had a collective bargaining agreement that covered Park `N Fly's New Orleans location.
In March 1996, Washington requested vacation time for August 9, 1996 through August 18, 1996. Under Article XIII of the Collective Bargaining Agreement ("CBA"), "standby" employees are not entitled to paid vacation. Park `N Fly granted Washington's request for vacation from August 12 through August 18, but denied his request for August 9, 10, and 11. Washington failed to report to work on August 10 and 11 even though his vacation request for those days had been denied. Park `N Fly's attendance policy provides that if an employee is absent from work on days for which the employee had been denied permission to be absent, the employee will be terminated, unless he can provide the company with proof that his absence was unavoidable. Washington merely supplied Park `N Fly with a note explaining that he had to respond to a personal family emergency. Washington's note said that his wife was stranded on the highway with car trouble. He supplied no proof of the emergency.
Park `N Fly terminated Washington, and he filed a grievance with the Union protesting his termination. Park `N Fly and the Union agreed to reduce the termination to a six-week suspension without pay and to reinstate Washington on October 17, 1996. Washington filed an administrative action in May of 1997 with the Equal Employment Opportunity Commission ("EEOC") and the Louisiana Commission on Human Rights. The petition asserted civil rights claims for denying his vacation requests, suspending him, and charging him with refusing an assignment. He also alleged that he was passed over on the standby list in favor of whites with less seniority. Based on its investigation, the EEOC was unable to conclude that the information it obtained regarding Washington's claims established civil rights violations. The EEOC issued a dismissal and right to sue letter on October 28, 1998.
Washington continued to work for Park `N Fly as a standby employee after he was reinstated in 1996. In February 1998, Washington filed two grievances with the Union. One grievance challenged certain changes in the policy manual and the other concerned charges that he refused assignments. The latter charges resulted when Ms. Scardino, the assistant lot manager at Park `N Fly's New Orleans location, was unable to contact Washington in order to call him to work on March 10 and 11, 1998. At the grievance meeting, the Union and Park `N Fly's management agreed to resolve the dispute by changing plaintiff's "refusals" to "unavailables." As a result, the charges would not count against Washington for the purpose of termination. Additionally, the parties agreed that Washington would be responsible for either calling in to his supervisors on days that he was not scheduled to work, or obtaining a pager so that his supervisors could contact him directly.
On August 21, 1998, after Washington had worked a shift in place of a sick co-worker for a number of months, the lot manager, Adrienne McCarthy, sent Washington a letter reminding him that he was required to call in each day or purchase a beeper because he was no longer on regular duty. Plaintiff failed to call in on August 24, 25, 26, 27, or 28, in contravention of company policy. The assistant manager issued a verbal warning to him.
Finally, on September 1, 1998, plaintiff received a notice of termination. The grounds asserted were that Washington had received three written warnings within a twelve month period. Company policy made this grounds for termination. The first written warning was for plaintiff's failure to report damage to his van. The ground for the second written warning was plaintiff's unauthorized stop outside of his route in a Park `N Fly van. Plaintiff did not file any grievances with the Union on the occasion of either warning. Finally, Park `N Fly issued the third written warning after plaintiff again failed to call in and be available for work when called by management. Following his termination, plaintiff filed a grievance with the Union. The Union advised Washington that it would be unable to process the grievance to arbitration. Two months later plaintiff filed a second discrimination charge with the EEOC. The EEOC was unable to conclude that the information it obtained established any violations of Title VII.
Plaintiff originally brought this action in Civil District Court for the Parish of Orleans, alleging race and sex-based discrimination under Title VII, 42 U.S.C. § 2000e, et seq., 28 U.S.C. § 1981, and 28 U.S.C. § 1985(3). Park `N Fly removed the case to this Court on August 14, 2000 and then moved for summary judgment.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts1 and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. p. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Waiver of Plaintiff's Right to Pursue His Claims in a Federal Forum
Defendant argues that the arbitration provision in the CBA amounts to a waiver plaintiff's right to pursue his discrimination claims in federal court. This argument is without merit. Any union-negotiated waiver of a plaintiff's statutory right to a judicial forum for claims of employment discrimination must be "clear and unmistakable." Wright v. Universal Maritime Service Corp., 525 U.S. 70, 80, 13.9 S.Ct. 391, 396 (1998); see also Jupiter v. Bellsouth Telecommunications, Inc., 1999 WL 1009829, *5 (E.D. La. 1999) (Vance, J.). In concluding that the CBA at issue in Wright did not contain a clear and unmistakable waiver, the Court noted that the arbitration clause was very general and did not explicitly incorporate statutory antidiscrimination standards. See id. at 80, at 396-97.
The Court finds that the CBA at issue here does not contain a clear and unmistakable waiver of a judicial forum for plaintiff's employment discrimination claims. The CBA contains a provision in which both the company and the Union agree to abide by the laws and regulations dealing with fair employment practices. See Def's Exs. 8, 9, CBA, art. 6.1. This clause does not incorporate any specific statute or legal standard. See Wright, 119 S.Ct. at 395 (holding general arbitration clause did not embrace federal statutory claims when CBA "contain[ed] no explicit incorporation of statutory antidiscrimination requirements."). Defendant relies on a Fourth Circuit case, Safrit v. Cone Mills Corporation, 248 F.3d 306 (4th Cir. 2001), cert. denied, ___ S.Ct. ___, 2001 WL 1060727 (Oct. 29, 2001), in which a section of the CBA at issue explicitly stated that the company and the union agreed that they would not discriminate on the basis of race, color, religion, age, sex, national origin, or disability, and would "abide by all of the requirements of Title VII of the Civil Rights Act of 1964." Safrit, 248 F.3d 307. The Safrit provision further stated that all grievances arising under this section are proper subjects for arbitration. See id. In light of the clear language and explicit reference to Title VII, the Fourth Circuit found a waiver in the CBA under the Wright standard. As stated above, no comparable language is contained in the CBA in this case. Furthermore, although the CBA provides for grievance and arbitration procedures for "any dispute raised by the Union as to the meaning, compliance with, interpretation of, or application of any provision of this Agreement," the CBA does not specifically make compliance with federal antidiscrimination statutes an obligation under the agreement. See Def's Exs. 8, 9, CBA, art. XVIII. Finally, the CBA does not clearly and unmistakably state that employees waive their statutorily protected right to resolution of their federal discrimination claims by a federal court. See Jupiter, 1999 WL 1009829 at *6. Accordingly, the Court declines to dismiss plaintiff's federal race discrimination claims on this ground.
C. Claims arising out of 1996 Termination and Reinstatement
Section 706(f)(1) of Title VII, 42 U.S.C. S 2000e(f)(1) mandates that a civil action be commenced within ninety days after the charging party has received a "right to sue" letter from the EEOC. 42 U.S.C. § 2000e(f)(1); see Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996); Nilsen v. City off Moss Point, 621 F.2d 117, 120 (5th Cir. 1980). Plaintiff received his "right to sue" letter on charge No. 270-97-0879 on or about October 28, 1998 for claims arising from his 1996 termination, suspension and reinstatement, and for a 1997 incident of having a white co-worker with less seniority placed ahead of him on the standby list. See Def's Ex. 25. Plaintiff did not file this suit in State court until late August 1999. See Pl's Compl. Therefore, plaintiff failed to meet the statutorily mandated ninety-day period for filing a civil action on his 1996 and 1997 claims.
Additionally, in his Opposition to the summary judgment motion, plaintiff asserts that he suffered discrimination because white co-workers "were of standby status," and plaintiff had more seniority than these individuals. See Pl's Opp. to Summ. J. at ¶¶ 4, 5. The assertion relates to complaints plaintiff filed with the Union in 1995 in which he demanded an explanation for allegedly being passed over on the standby list by white workers with less seniority. See Pl's Exs. 7, 10. These claims should also be dismissed because no administrative complaints were ever filed on these charges. See Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997) ("The filing of an administrative complaint is a jurisdictional prerequisite to a Title VII action. Further, a complainant must pursue and exhaust his administrative remedies prior to filing a judicial complaint.") (citations omitted). Plaintiff is unable to demonstrate that the 1995 claims were ever included as part of either of his two administrative actions from 1997 or 1998. Therefore, defendants are entitled to summary judgment on these claims.
D. Claims Arising from the 1998 Termination
(i) Title VII and § 1981 Discrimination and Retaliation
The elements of Title VII and Section 1981 claims are the same. Anderson v. Douglas Lomanson Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994).
Title VII of the 1964 Civil Rights Act provides that "(ilt shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A Title VII plaintiff bears the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973); see also Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); Lapierre v. Benson Nissan, 86 F.3d 444, 447-48 (5th Cir. 1996); Porter v. Milliken Michaels, Inc., 2001 WL 736753, *2Z*4 (E.D. La. 2001) (Vance, J.). In work-rule violation cases, a Title VII plaintiff may establish a prima facie case by showing "either that he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished similarly." Mayberry v. Vought Aircraft Company, 55 F.3d 1086, 1090 (5th Cir. 1995) (citing Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S. 879, 101 S.Ct. 227 (1980)).
Here, plaintiff fails to establish his prima facie case for discrimination and retaliation. First, plaintiff does not contest that he violated defendant's work rules in the three instances in which he received written warnings in 1998. See Exs. 18, 19. After receiving the three written warnings within a twelve-month period, Washington was terminated under Park `N Fly's progressive discipline policy. See Def's Ex. 13 at 59, ¶ 22. Second, he advances no facts to indicate that he was treated differently than any similarly situated white employees. On deposition, plaintiff admitted that he had no knowledge of any facts indicating that any employee, let alone a white employee, had received three written warnings and was not terminated. See Washington Deposition at 296-97. Accordingly, the Court finds that the plaintiff is unable to present a genuine issue of material fact as to his prima facie case of discrimination.
Plaintiff also asserts that he was terminated in retaliation for filing a charge of discrimination with the EEOC in 1997. See Pl's Cmplt. at II. A prima facie case of retaliation exists if the plaintiff establishes that (1) he participated in statutorily protected activity, (2) he underwent an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse action. Mayberry, 55 F.3d at 1092 (citing Armstrong v. City off Dallas, 997 F.2d 62, 65 n. 3 (5th Cir. 1993)). Although not necessarily a determinative factor, the timing of an adverse employment action can be a significant factor in establishing the required nexus between the protected activity and the termination. See Mayberry, 55 F.3d at 1092; Chaney v. New Orleans Public Facility Management, Incorporated, 179 F.3d 164, 169 (5th Cir. 1999) (finding two-year gap between protected activity and alleged retaliatory discharge made retaliation quite doubtful).
Here, defendant concedes that Washington meets the first two elements of the prima facie case for retaliation. Park `N Fly contends, however, that Washington fails to establish a material fact issue on whether a causal connection exits between his protected activity, the filing of the May 29, 1997 EEOC discrimination charge, and his termination. See Def's Suppl. Mem. in Supp. of Mot. for Summ. J. at 16. The Court agrees. Plaintiff puts forth no material facts to establish any causal relationship between the filing of the discrimination charge in May 1997 and his termination in September 1998. Additionally, Park `N Fly terminated Washington fifteen months after he submitted the discrimination charge to the EEOC, making it doubtful that the discrimination charge was causally related to the plaintiff's termination in 1998. See Chaney, 179 F.3d at 169. Accordingly, the Court finds that plaintiff fails to establish a prima facie case for a claim of retaliation. In all, Washington's discrimination and retaliation claims are without merit.
(ii) Sex Discrimination Claims
Plaintiff's complaint alleges sex-based discrimination by the defendant. See Pl's Cmplt. at I, VI. These claims should also be dismissed because no administrative complaints were ever filed on these charges. See Barnes, 118 F.3d at 408. Plaintiff is unable to demonstrate that sex-based claims were ever included as part of either of his two administrative actions from 1997 or 1998. Therefore, summary judgment on these claims is warranted.
(iii) Section 1985(3) Claim
Plaintiff also alleges civil rights violations under 42 U.S.C. § 1985(3). The Supreme Court held that Section 1985(3) may not be invoked to redress violations of Title VII. Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345 (1979); see also Horaist v. Doctor's Hospital off Opelousas, 255 F.3d 261, 270 (5th Cir. 2001); Lakoski v. James, 66 F.3d 751, 755 (5th Cir. 1995). Therefore, plaintiff's Section 1985 claim is without merit.
III. Conclusion
For the reasons stated, the Court GRANTS Park `N Fly's motion for summary judgment.