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Evans v. Napa Auto Genuine Parts Co.

United States District Court, N.D. Texas
Oct 17, 2001
CIVIL ACTION NO. 3:00-CV-1383-P (N.D. Tex. Oct. 17, 2001)

Opinion

CIVIL ACTION NO. 3:00-CV-1383-P

October 17, 2001


MEMORANDUM OPINION AND ORDER


Now before the Court are the following:

1. Defendant Genuine Parts Company's Motion for Summary Judgment, with supporting brief and appendix, filed August 2, 2001;
2. Plaintiff's Response to Defendant's Motion for Summary Judgment, with supporting brief and appendix, filed August 24, 2001; and
3. Defendant Genuine Parts Company's Memorandum in Reply to Plaintiff's Response, with an appendix, filed September 10, 2001.

After a thorough review of the summary judgment evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.

BACKGROUND

Plaintiff Lorenzo Evans brings the current lawsuit before the Court against his former employer, Genuine Parts Company ("GPC"), alleging claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., and 42 U.S.C. § 1981. Evans is an African-American individual who was employed at GPC's Distribution Center in Mesquite, Texas from August 19, 1989 until his discharge on May 26, 2000. See Def.'s Mem. Supp. Def.'s Mot. Summ. J. at 3 (hereinafter "Def.'s Mot."). Plaintiff was initially hired for the position of stocker at the warehouse by Stockroom Manager Tommy Booker ("Booker"), a white male, and later become an order puller in the zones area of the warehouse. See Id.; see also Mendoza Dep. at 15.

Incorrectly identified by Plaintiff as "NAPA Auto Genuine Parts Company" in Plaintiff's Original Complaint.

In September 1998, Plaintiff applied for and was selected by Booker for the position of repack red tray clerk. See Id. at 4. The repack red tray area was a position outside the "zones" area of the warehouse, which Plaintiff characterized as less physically demanding because it involved less lifting and dealing with smaller parts. See Mem. Supp. Pl.'s Resp. at 3 (hereinafter "Pl.'s Resp."); see also Evans Decl. at 2. While there, Plaintiff worked under the supervision of David Shawgo ("Shawgo"), a white male who had served as Section Supervisor of the repack red tray area since October 1997. See Id. Plaintiff contends that by the second week after reporting to the repack area he began complaining to Stockroom Supervisor Booker about Shawgo's abusive conduct and harassment toward him. See Evans Decl. at 1. More specifically, Evans alleges that he complained to Booker about Shawgo's statements to him, including statements such as "you people do not know how to work with the public," which he understood to be directed at African-Americans. Id. Evans also contends he complained about Shawgo's constant harassment of him regarding his job duties, and the constant scrutiny over his performance. Id. at 2. Booker, however, denies that Plaintiff ever complained to him regarding any racial slurs made by Shawgo, or about being discriminated against by Shawgo or any other person at GPC. Booker Decl. at 2.

In October 1998, Booker filled out a number of vacant leadership positions in the "zones" section of the warehouse, selecting from among those employees who were then working in the zones areas of the warehouse. See Def.'s Mot. at 4. The selections were made based on the recommendations of Larry Ross ("Ross"), a black male who was the Assistant Stockroom Manager at the time. Ultimately, of the six individuals selected as zone leaders in October 1998, four of them were non-whites, including one African-American. Id.

By December 1998, Evans alleges that he again complained to Booker that Shawgo's conduct toward him was becoming intolerable, and shortly thereafter he was transferred back to the zones area as an order puller. See Evans Decl. at 2.

In September 1999, Plaintiff experienced chest pains and was out of work until about October 20, 1999, when his physician released him for light duty work. Def.'s Mot. at 4. He remained doing light duty work at GPC until he was released to full duty on or about November 30, 1999. Id.

Sometime in late 1999, at a time when Plaintiff was working in Zone 4 of the warehouse, a zone leader position for Zone 5 became available. See Evans Decl. at 2. This position was eventually filled by David Cox, a white male who was promoted from his position as an order puller in Zone 4, and whom Evans believes had worked at GPC for five years. Id. Similarly, about January or February 2000, while Evans was still working in Zone 4, a zone leader position in Zone 4 became available. Id. This position was subsequently filled by Kevin Tate, a white male whom Plaintiff believes had been working in Zone 4 prior to his promotion and that had also been at GPC for about five years. Pl.'s Resp. at 4-5.

On or about February 25, 2000, GPC posted the position of UPS shipping clerk/will call clerk after David Allen, who held the position at the time, was selected for an Internet e-commerce clerk position that had been posted. Def.'s Mot. at 4. Evans signed up for the UPS shipping clerk position, a position he regarded as less physically demanding than that of an order puller he was currently working at the time. See Evans Decl. at 3. Plaintiff alleges that on the day he signed up, Shawgo approached him and asked him whether he thought he was qualified for the position, to which he responded that he would not have signed up if he did not think he was qualified. See Id. Thereafter, Plaintiff claims that Shawgo turned away and stated loud enough for him to hear "fucking smart ass nigger." Id. Evans claims that he immediately reported Shawgo's conduct to Booker, who told him that he was too busy and that "now was not the time." Id. In addition, Plaintiff also alleges that sometime after signed up, he observed Mike Seals sign up for the UPS shipping clerk position and then saw Seals, who is white and was less experienced than him, meet with Booker. Id. at 3-4. Evans complains that Booker never met or discussed with him the opening for the UPS shipping clerk position. See Id. at 4.

Evans also claims that sometime during October 1999, Shawgo had come to him and referred to him and another African-American employee as "brothers," although he was not related to anyone at GPC. See Evans Decl. at 1.

On March 1, 2000, Evans left work again with chest pains and was later placed on no-duty status by his physician, effective from that date. Def.'s Mot. at 5. Thereafter, GPC placed him on Family and Medical Leave ("FMLA") beginning on March 2, and kept his position open for the entire period of his FMLA leave. Id. The physician's restrictions had stated that Evans was to remain off work until at least June 5, 2000. Id. On or about March 24, 2000, Scharlotte Mendoza, the Human Resources Manager at the Mesquite facility, requested that Plaintiff see a cardiologist regarding his chest pains. Id; see also Evans Dep. at 78. However, after agreeing to, Plaintiff failed to show for the appointment, believing that his injury was related to muscle strains and not a heart attack. Evans Dep. at 78.

On May 3, 2000, Plaintiff filed a charge with the EEOC alleging race discrimination and retaliation. Def.'s Mot. at 6. Plaintiff was subsequently discharged on May 26, 2000 by Ms. Mendoza on orders from Dawn Anderson, GPC's Corporate Director of Employee Relations, allegedly due to his failure to return to work following the expiration of his 12 weeks of FMLA leave. See Anderson Decl. at 2; see also Def.'s Mot. at 6. Plaintiff contends, however, that during the five years prior to his termination, at least six or seven employees had missed more than 12 weeks of work and had not been fired from GPC's Mesquite facility. Pl.'s Resp. at 5.

DISCUSSION

I. The Parties Claims

In this action Lorenzo Evans asserts a right to recovery under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1981, for race discrimination and retaliation taken against him by Defendant Genuine Parts Company. See Pl.'s Orig. Comp. at 1-4. More specifically, Plaintiff contends that (1) "GPC discriminatorily denied him promotions because of his race and in retaliation for complaining to GPC about discriminatory treatment," and (2) "GPC discharged him because he filed a charge of discrimination with the Equal Employment Opportunity Commission." Pl.'s Resp. at 1. Meanwhile, Defendant GPC moves this Court for relief claiming that summary judgment is proper because (1) Plaintiff's Title VII discriminatory and retaliatory promotion claims are barred in whole or in part because he failed to exhaust his administrative remedies with the EEOC; (2) Plaintiff's Section 1981 discriminatory and retaliatory promotion claims are barred in whole or in part by the applicable two-year statute of limitations; (3) Plaintiff's discriminatory and retaliatory promotion and discharge claims fail because he does not state a prima facie case; and (4) Plaintiff's discriminatory and retaliatory promotion and discharge claims fail because GPC's decision to discharge Plaintiff was based on legitimate, non-discriminatory reasons and there is no evidence that GPC's reasons are pretextual. See Def.'s Mot. at 2. Each of these arguments will be considered in turn.

Although Plaintiff also included in his Complaint claims of retaliation based on Tex. Lab. Code § 451.001 (retaliation for filing a workers' compensation claim), he now asserts that after adequate time for discovery, he no longer wishes to pursue this claim. See Pl.'s Resp. at 1 n. 1. In addition, Plaintiff further clarifies that the basis for his discharge claim is retaliation and not race discrimination. See Id.

II. Standard for Summary Judgment

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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).

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, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides 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, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-1076 (5th Cir. 1994).

Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the non-moving party directs. Id.

III. Non-Promotion Claims

A. Whether Title VII Claims for Non-Promotions are Time Barred

In Texas, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. See 42 U.S.C. § 2000e-5(e)(1)(2001); see also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). However, under the "continuing violation" doctrine, a limited, equitable exception to the limitations period exists when the unlawful employment practice manifests itself over time, rather than as a series of discrete acts. See Huckabay, 142 F.3d at 238. The focus in applying the continuing violation theory is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. See Id.

In the past this Court has found, whenever "failure to promote claims" are involved, a plaintiff cannot rely on the continuing violation doctrine to extend the limitations period because such claims, by their very nature, are isolated occurrences that should have put the plaintiff on notice that a claim had accrued. See Blackman v. City of Dallas, No. Civ.A.3:00-CV-0075-P, 2001 WL 18752 at *2 (N.D. Tex. Jan. 23, 2001) (Solis, J.) ( citing Huckabay, 142 F.3d at 240). Therefore, as a general matter, any potential claims arising out of GPC's alleged racially motivated non-promotions of Evans shall be considered time barred if they occurred prior to July 7, 1999 (300 days before the filing of his EEOC charge on May 3, 2000). Plaintiff response concedes as much since the only non-promotion claims upon which he continues to rely upon are the 1999 and 2000 zone leader positions, and February 2000 UPS shipping clerk position mentioned above. See Pl.'s Resp. at 7. Accordingly, the Court grants GPC's motion for summary judgment as to all other remaining claims.

B. Whether Evans Failed to Exhaust His Administrative Remedies

Defendant contends that Plaintiff's Title VII non-promotion claims are also barred because he failed to exhaust his administrative remedies prior to filing suit. Def.'s Mot. at 4. More specifically, GPC argues that Evans' May 3, 2000 EEOC Charge is silent as to the allegation that he was denied any promotion on the basis of his race. Id. (emphasis added).

A Title VII cause of action may be based, "not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination." Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). In this case, it is uncontested that Evans' EEOC complaint claims he believed he had been discriminated against because of his race, by being subjected to racial slurs by David Shawgo, and that as a result of his complaints to his Supervisor, Tommy Booker, he was retaliated against by being denied promotion opportunities. See Def.'s App. Mot. Summ. J. at 95 (Evans' EEOC Charge). Although this charge specifically mentions the denial of promotions being the result of "retaliation," the statement also raises the general issue of racial discrimination in the promotion process. Therefore, it is logical to assume that any EEOC investigation could reasonably have been expected to cover the charges of denied promotions because of Plaintiff's race, and thus the Court believes Evans has satisfied the jurisdictional prerequisite of filing an administrative complaint for these Title VII race discrimination claims. Accordingly, GPC's motion for summary judgment as to these claims is denied.

C. Whether 42 U.S.C. § 1981 Claims for Non-Promotion are Time Barred

The applicable statute of limitation for a § 1981 claim is two years. National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 n. 22 (5th Cir. 1994). Because Evans filed his suit on June 26, 2000, any claims arising out of the 1999 and 2000 zone leader positions, as well as the February 2000 UPS shipping clerk position, are within this statutory period and thus are not otherwise barred. See Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (use of section 1981 as an avenue for redress of employment discrimination is not constrained by the administrative prerequisites applicable to Title VII claims). However, as to the remaining potential claims arising out of non-promotions made prior to June 1998, these claims are time barred and Defendant's motion for summary judgment shall be granted as to these.

D. The Parties' Burdens Under the Failure to Promote Claims

At the outset it should be noted that district courts are free to adopt the same basis for deciding both § 1981 and Title VII failure to promote claims because both types of claims are analyzed under the general Title VII evidentiary framework. See Walker, 214 F.3d at 625. Under the tripartite burden-shifting test established by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 802-804 (1973), in order to overcome a motion for summary judgment, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of race discrimination. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). Such a prima facie case is established by the plaintiff once he proves that (i) he is a member of a protected class; (ii) that he sought and was qualified for an available employment position; (iii) that he was rejected for that position; and (iv) that after he was rejected, the employer promoted, hired, or continued to seek applicants with the plaintiff's qualifications. See Grimes v. Texas Dep't of Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996); see also, Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir. 1986) (alleging sex discrimination in employer's failure to hire or promote).

The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford, 190 F.3d at 404. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the employer carries its burden, the mandatory inference of discrimination by the prima facie case drops out of the picture. Id. A plaintiff can then avoid summary judgment if the evidence, taken as a whole: (1) creates a fact issue as to whether each of the employer's stated reasons was not what actually motivated the employer and (2) creates a reasonable inference that race was a determinative factor in the actions of which plaintiff complains. Grimes, 102 F.3d at 141. The ultimate burden of persuasion rests squarely on the plaintiff. Marcantel v. Louisiana Dep't of Transp., 37 F.3d 197, 200 (5th Cir. 1994).

In the instant case, Evans essentially claims that he was discriminated against by being denied promotions as a result of the following decisions or incidents: (1) he was not hired for any of the six October 1998 zone leadership positions; (2) he was not hired for the Zone 5 leader position which opened in late 1999 or the Zone 4 leader position which opened in January or February 2000; and (3) he was not hired for the position of UPS shipping clerk which posted on February 25, 2000. Each of these claims will be addressed in turn.

1. October 1998 Zone Leaders Positions

As set out above, for Evans to articulate a prima facie case of race discrimination as to GPC's failure to promote him to one of the six zone leaders positions posted in October 1998, he must show that he (i) belongs to a protected class, African-American; (ii) sought and was qualified for the job; (iii) was rejected for that position; and (iv) was replaced by someone outside the protected class, not African-American. See Blackman, 2001 WL 18752 at *2. Although the Court has already found that any Title VII-based claim for these non-promotions are barred, see supra Section III(A), the Court also finds that Evans' § 1981 claim here cannot survive summary judgment scrutiny for two reasons.

First, Plaintiff has not established a prima facie case that he was qualified for the job. At the time of the selection of the zone leaders in October 1998, Evans was employed as a repack red tray clerk, a position in the shipping/receiving department and outside the "zones" area of the warehouse. See Def.'s Mot. at 4. In making the decision as to whom to select, Stockroom Manager Booker adopted the recommendations made to him by his Assistant Larry Ross, a black male, and chose the six zone leaders from among employees were then working within the "zones" area at the time. Booker Decl. at 2. Therefore, Evans was not considered eligible for a zone leader position because of his placement outside the zones at the time, and as such, has failed to prove he was qualified for these positions, an essential element in his discrimination claim.

Second, assuming that Plaintiff had been eligible, he also fails to satisfy the fourth prong of his prima facie case: that he was replaced by someone outside his protected class. The evidence in undisputed that of the six positions, four of the individuals selected as zone leaders in October 1998 were non-whites (including one African-American). See Def.'s Mot. at 4; Pl.'s Resp. at 3. Therefore, Evans has failed to carry his burden of establishing a prima facie case of non-promotion discrimination as to the October 1998 zone leader positions. Accordingly, summary judgment is granted to the Defendant with respect these claims.

2. Late 1999 and Early 2000 Zone Leader Position Openings

Plaintiff alleges that in late 1999, the zone leader position for Zone 5 became available and that GPC filled the position with David Cox, a white employee who had approximately six years less experience than Plaintiff at the time of the selection. See Pl.'s Resp. at 4. Similarly, sometime in January or February 2000, the zone leader position for Zone 4 became available and GPC filled the position with Kevin Tate, a white employee who had also approximately six years less experience than Plaintiff. As to these positions the Court finds that Evans has established a prima facie case of discrimination since: (i) he is a member of a protected class, African-American; (ii) he was working as an order puller within Zone 4, and thus was within the zones area of the warehouse at the time; (iii) he was not hired for either of these positions; and (iv) an employee from outside his protected class was hired for these positions.

Although the record is unclear as to whether Evans in fact applied for these positions, Defendant acknowledges that the position of zone leader at the Mesquite facility was not normally posted. See Booker Decl. at 2. Moreover, Booker does not deny that Evans may have been considered and rejected for these positions when he made the selection of David Cox and Kevin Tate. See Def.'s App. Reply at 11-16, Booker Decl.

Stockroom Manager Tommy Booker made the selections of David Cox and Kevin Tate when the two zone leader positions became available in December 1999. See Def.'s App. Reply at 12, Booker Decl. at 2. Booker avers that he based these selections on the recommendations of his Assistant, Larry Ross and because he believed that both Cox and Tate were the best-qualified employees for the positions. See Id. According to Booker, Cox was working in the zones area of the warehouse at the time, and had worked for GPC since 1994. See Id. Booker considered Cox an excellent employee who was twice selected as Employee of the Month at the Mesquite facility by vote of the entire management staff, once in 1998 and again in 1999. See Def.'s App. Reply at 13, Booker Decl. at 3. In addition, Booker believed Cox to have strong communication skills, a good attendance record, was very organized, got along well with other employees in the zones, was respected by his peers, understood the zones very well, and regularly went "above and beyond" in his efforts to do a good job, demonstrating that he was self-motivated. See Id.

Booker argues that he did not make any selections for zone leader positions in January or February 2000. See Def.'s App. Reply at 12, Booker Decl. at 2. The Court assumes that Plaintiff incorrectly estimated that date of selection for the zone leader position that was later awarded to Kevin Tate.

Similarly, at the time of his selection as zone leader, Booker knew that Tate had some experience in the zones area, having worked as an order puller there for more than 3 years, a loader for approximately a year, and had also worked as the UPS shipping clerk/will call clerk for more than one year. See Def.'s App. Reply at 4, Booker Decl. at 4. He particularly looked with favor Tate's experience as the UPS clerk since that position required good attendance, attention to detail, and strong communication skills because of the constant interaction with the public. See Id.

Booker argues that he did not have any ill will or animus toward Evans, and that in no way was his decision not to select him for either of the zone leader positions in December 1999 based on Evans' race or any other illegal reason. See Def.'s App. Reply at 16, Booker Decl. at 6. In addition, although he believed that Evans was competent at his job as an order puller and had fair communication skills, Booker considered Evans not an above-average employee and was concerned about his then recent absences from work from September 1999 until December 1999. See Id. at 15.

Having proffered a legitimate, nondiscriminatory reason for its failure to hire Evans, any inference of discrimination by Plaintiff's prima facie case drops out of the picture, and the burden swifts to Evans to demonstrate GPC's reasons are in fact pretextual. See Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001). Here, Plaintiff does not dispute the qualifications of either Cox or Tate, but offers as an explanation as to why he considers GPC discriminated against him his belief that he was better qualified than either of the candidates selected because he was significantly more experienced than them. See Pl.'s Resp. at 4. Although GPC acknowledges that Evans had more seniority with the Company than either Cox or Tate, Booker explained that seniority played only a minor role in the selection process for these zone leader positions since he considered it only insofar as it showed him that the candidate had been working in the zones long enough to fully understand how the zones worked. Def.'s App. Reply at 15, Booker Decl. at 5. A genuine issue of material fact is created when the evidence shows that the plaintiff was "clearly better qualified" than the employees who were selected. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996). The evidence, however, must be more than merely subjective and speculative. See Id. Here, similar to the plaintiff in Nichols, Evans suggests that he was better qualified than these individuals simply because he had more work experience than them. See Id. But even so, "an attempt to equate years served with superior qualifications is unpersuasive," and more evidence, such as comparative work performance, is needed to raise a genuine fact issue. See Id. (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir. 1993)); see also Huckaby v. Crown, Cork Seal, No. Civ.A. 3:98-CV-1237-P, 1999 WL 680228 at *4 (N.D. Tex. Aug. 31, 1999) (Solis, J.) (mere fact that a plaintiff believes his employer discriminated against him is insufficient to prove discrimination). Because the evidence shows that GPC had a legitimate, non-discriminatory reason for selecting Cox and Tate, namely Booker's belief that they were more qualified than Evans, and since Plaintiff has not produced any evidence, other than his subjective belief, regarding his superior qualifications, he has therefore failed to make the requisite showing of pretext for a finding of discrimination. See Musgrove v. Mobil Bus. Res. Corp., No. 3:97-CV-2795-P, 1999 WL 108931 at *4-5 (N.D. Tex. Nov. 29, 1999) (Solis, J.). The Court declines to substitute its judgment for that of an employer in evaluating what types of experience are most valuable for an employee in the new position in the absence of proof that the standards were not consistently applied or were so irrational or idiosyncratic so as to suggest a cover-up. EEOC v. Louisiana Office of Cmty. Serv., 47 F.3d 1438, 1445-1446 (5th Cir. 1995). Accordingly, the Court grants summary judgment to the Defendant as to these claims.

3. February 2000 Position Openings

Plaintiff alleges that in February 2000, he signed up for the UPS Shipping Clerk at GPC's Mesquite facility, which was posted when David Allen, who then held the position, was selected for an Internet e-commerce clerk position. See Def.'s Mot. at 4-5; see also Evans Decl. at 3. Evans may establish a prima facie case here if, in addition to (i) being a member of a protected class and (ii) that he sought and was qualified for the UPS clerk position, he proves (iii) he was rejected for that position and (iv) that after he was rejected, the employer promoted, hired, or continued to seek applicants with the plaintiff's qualifications. See Grimes, 102 F.3d at 140; see also Jones, 793 F.2d at 724.

Defendant, through the declaration of John Randall, Operations Manager at GPC's Mesquite facility, argues that after David Allen was awarded the e-commerce position, he instructed Human Resources Manager Scharlotte Mendoza not to move forward in filling out the UPS clerk position until they were sure there was a need for an independent e-commerce position. See Randall Decl. at 1-2. Randall instructed Mr. Allen to continue performing his UPS shipping clerk/will call duties in addition to the e-commerce position until further notice. See Id. at 2. Subsequently, after reviewing the early returns, Randall determined that there was no need for an independent e-commerce position and instead placed the responsibility under the UPS clerk's position, where Mr. Allen then remained. See Id; see also Mendoza Decl. at 4. Therefore, Defendant contends that Evans cannot establish the third and fourth prongs of his prima facie case because the position never became available since the UPS clerk position was never vacated. Def.'s Mot. at 11.

Because seeking an "available employment position" is a requirement in establishing a prima facie case, if such a position did not exist during the time in question, Plaintiff would be unable to establish a necessary element in his discrimination claim. See Musgrove, 1999 WL 1080931 at *3; see also LaPeirre v. Benson Nissan, Inc., 86 F.3d 444, 448, 450 n. 7 (5th Cir. 1996). Plaintiff here alleges that shortly after signing up for the UPS position, he observed Mike Seals, who is white and was less experienced than him, sign up and then meet with Booker. See Evans Decl. at 3-4. Other then Evans' own speculation, there is simply no evidence in the record to support a finding that this purported meeting was even related to the UPS position. The Court therefore finds that Plaintiff has failed to establish a prima facie case here since he cannot establish that he was rejected for an available position or that, after he was rejected, the GPC promoted, hired, or continued to seek applicants outside Plaintiff's protected group. Moreover, even assuming that a prima facie could be established, the Court also finds that GPC has satisfied its burden of production because it did not promote Plaintiff, or any else for that matter, since the position never came open. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000).

Evans asserts several reasons why he believes GPC's explanation for his non-promotion to the UPS shipping clerk position is pretextual. First, Plaintiff claims that on the day he signed up, David Shawgo approached him and asked whether he thought he was qualified for the position, to which he responded that he would not have signed up if he did not think he was qualified. See Evans Decl. at 3; see also Evans Dep. at 39. Thereafter, Evans claims that Shawgo turned away and stated loud enough for him to hear that Plaintiff was "a fucking smart ass nigger." Evans Decl. at 3. Evans argues he immediately reported Shawgo's conduct to Booker, who told him that he was too busy and that "now was not the time." Id.; see also Evans Dep. at 41-42. Thus, Plaintiff believes that as a result of this and other complaints made to Booker concerning Shawgo's conduct, he was retaliated against by being denied this promotion. See Def.'s App. Mot. Summ. J. at 95 (Evans' EEOC Charge). On its behalf, GPC denies that Booker or his Assistant, Larry Ross, played any role whatsoever in the decision not to select Evans for the UPS clerk, or any other employee for that matter, and that it was solely Operations Manager John Randell's decision to instruct Ms. Mendoza not conduct the selection process for the posted UPS clerk position. See Randell Decl. at 2; see also Booker Decl. at 2-3; Ross Decl. at 2. Plaintiff himself acknowledged in his deposition that he did not know who made the decision to hire the UPS clerk, and was unclear as to whom GPC eventually "selected" for the position. See Evans Dep. at 9-10 (believing that either David Allen or Mike Sills received the position). Plaintiff's speculation, however, is insufficient to rebut Defendant's uncontroverted evidence that no one was selected.

Although discriminatory remarks must be taken into account when analyzing the evidence supporting Plaintiff's allegations of pretext, the Court must assess their value by examining whether the remarks indicate invidious animus and whether the speaker of the remarks was "principally responsible" for the adverse employment decision. See Rios v. Rossotti, 252 F.3d 375, 379-380 (5th Cir. 2001) ( citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225-229). Here, there is no evidence in the record to support Plaintiff's allegations that David Shawgo's stray remarks, or Tommy Booker's knowledge of these from Plaintiff's complaints, in any way influenced the ultimate decision by Mr. Randall not to select Evans, or any other person, for the UPS shipping clerk/will call position. None of the remarks allegedly made to Plaintiff here, or any knowledge of these, can be attributed to individuals with decision making authority as to the UPS clerk position in this case. See Rios, 252 F.3d at 379; see also Nichols, 81 F.3d at 41-42 (comments must be made by the relevant decision maker in order to be probative). Nor can Plaintiff present any evidence that could lead a rational jury to find that these individuals who uttered or were aware of those remarks possessed any leverage, or exerted any influence, over the decision-maker here. See Rios, 252 F.3d at 379-380. Therefore, the Court can only conclude that Evans is simply speculating when he complains that he was not selected to the UPS shipping clerk position because of either his race or his complaints to GPC management about racial harassment. Since Evans has failed to create a jury issue that Defendant's proffered reason was a pretext for discrimination summary judgment shall be granted to Defendant as to this claim. See Crawford, 234 F.3d at 903 (plaintiff must present sufficient evidence to find that the employer's asserted justification is false).

IV. Retaliation Claims

Plaintiff also brings claims against GPC alleging retaliatory discharge following his filing of discrimination charges with the EEOC for race discrimination and retaliation. See Pl.'s Resp. at 1. More specifically, Evans filed his charge with the EEOC on May 3, 2000, and alleges that no one at GPC ever contacted him or asked him about these charges before discharging him on May 26, 2000. See Def.'s Mot. at 6; see also Evans Decl. at 4. Meanwhile, Defendant avers that Plaintiff was discharged by Ms. Mendoza, the Human Resources Manager at the Mesquite facility, following orders from Dawn Anderson, GPC's Corporate Director of Employee Relations, due to his failure to return to work following the expiration of his 12 weeks of FMLA leave. See Anderson Decl. at 2; see also Def.'s Mot. at 6. Plaintiff brings this retaliatory discharge claim under both Title VII and § 1981. See Pl.'s Orig. Compl.

In his response to Defendant's summary judgment motion, Plaintiff clarified that the only basis on which he is pursuing his discharge claim is retaliation and not race discrimination. See Pl.'s Resp. at 1 n. 1.

The Court notes that the elements of a 42 U.S.C. § 1981 claim for retaliation are identical to the elements of a Title VII claim, see Anderson v. Douglas Lomanson Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994), therefore it shall examine these claims under the McDonnell Douglas burden-shifting analysis for claims of unlawful retaliation. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). Under this framework, if Evans establishes a prima facie case, he will have raised a rebuttable presumption of discrimination and shifted the burden to Defendant to articulate a legitimate, non-discriminatory reason for the employment decision. See Id. If Defendant satisfies this burden of production, the burden returns to Evans to show that Defendant's proffered reason is a mere pretext for unlawful retaliation. See Id.

To make out a prima facie case for retaliation, Plaintiff must prove that (i) he was engaged in protected Title VII activity; (ii) he suffered an adverse employment decision; and (iii) a causal nexus exists between the protected activity and the adverse employment decision. See Id. The Court finds unquestionable that Evans was engaging in a protected activity when he filed a charge of discrimination with the EEOC, and that his termination constituted an adverse employment action. See Jones, 793 F.2d at 724. The parties, however, disagree about the causal link between the termination and the filing of the EEOC charges. On the one hand, Evans argues that the close timing between the filing of the EEOC complaint and his discharge satisfies the required "but for" causal connection to make out a prima facie case of retaliation. See Pl.'s Mot. at 9; see also Jones, 793 F.2d at 724-725. On the other hand, Defendant counters that there is no "suspect timing" here, and regardless, the mere fact than an adverse employment action chronologically follows a protected activity, standing alone, is insufficient to establish the causal link. See Def.'s Mot at 21. That some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case. Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 n. 3 (5th Cir. 1997); see also Dickerson v. Metro. Dade County, 659 F.2d 574, 580 (5th Cir. Unit B 1981) (not every employee who is fired after having filed charges with the EEOC will fall within the protective ambit of Title VII). However, the Fifth Circuit has held that close timing between an employee's protected activity and an adverse action against him may provide the "causal connection" required to make out a prima facie case of retaliation. Swanson, 110 F.3d at 1188. Therefore, considering the very short lapse of time between the filing of the charges and his termination, for purposes of summary judgment, the Court will assume that Plaintiff can establish the requisite causal link to make out a prima facie case of retaliation.

Defendant asserts that even if the Plaintiff can establish a prima facie case of retaliation, it has articulated a legitimate, nondiscriminatory reason for his discharge-Evans failed to return from FMLA leave at the exhaustion of his leave time. See Def.'s Mot. at 19-22; see also Mendoza Dep. at 8. The evidence shows that Ms. Mendoza placed Plaintiff on FMLA effective March 2, 2000, the day he left work with chest pains, and calculated that 12 weeks of leave made his leave time end on May 25, 2000. See Mendoza Decl. at 4. GPC kept his position open the entire time of his leave, and Evans admits that had not returned to work by May 26, 2000, the day after his leave ended. See Id; see also Evans Dep. at 34-35. The summary judgment evidence also shows that GPC was aware that based on the recommendations of Plaintiff's physician, he was to remain off work until at least June 5, 2000. Def.'s Mot. at 6. And further, Defendant insists that the decision maker in this discharge decision was Dawn Anderson, GPC's Corporate Director of Employee Relations in Atlanta, Georgia, and she was unaware of Plaintiff's protected conduct prior to making her decision. See Def.'s Mot. at 22; see also Anderson Decl. at 3.

Once the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing of it, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive. See Swanson, 110 F.3d at 1188 (emphasis added). Evans here counters that his dismissal for failure to return to work following his FMLA leave is pretextual because in the previous five years he was aware of other employees at GPC's Mesquite facility who had missed more than 12 weeks of work and who had not complained about discrimination or filed charges of discrimination, and who were not discharged by GPC. See Pl.'s Mot. at 8. Moreover, Plaintiff speculates that Ms. Anderson would not have made the decision to discharge him if the Mesquite employees had not called her and requested her assistance regarding his leave, and thus the Court should infer that Anderson could have been aware of his charge. See Id.

The summary judgment record shows that Ms. Scharlotte Mendoza, the Human Resources Manager at GPC's Mesquite facility, testified that there may have been possibly four or five employees in the past five years who missed more than 12 weeks of work with workers' compensation, occupational type injuries, but were not terminated by GPC. See Mendoza Dep. at 11-12. In addition, Mendoza testified that there may have been one or two employees that were out on disability leave, still earning disability from the company, that missed more than 12 weeks and were not discharged. See Id. at 13. The record also contains references to a Carwin Porter, a white employee who was discharged when he was out of work on STD Leave and failed to return to work at the end of his leave. See Mendoza Decl. at 3. Under the Fifth Circuit's test, 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 the engaged in by other employees." Okoye v. Univ. of Texas Houston Health Science Ctr., 245 F.3d 507, 514 (5th Cir. 2001). GPC's argument here is that the employees referenced by Ms. Mendoza were those out on workers' compensation leave or on short-term disability leave who had not exhausted their leave time after twelve weeks, and therefore are not "nearly identical" in nature to Plaintiff so as to constitute proper comparators. See Def.'s Mot. at 15. The Court finds that the record is sufficiently clear that these other employees were not similarly situated to Plaintiff in order for it to make a proper comparison to determine whether Defendant's differential treatment of them constitutes evidence of pretext. The key issue here is not how long the employees were out on leave, but whether they had exhausted their leave prior to their return. Defendant has presented clear evidence that the other employees, except for Carwin Porter, had not exhausted their leave. The only employees who had exhausted their leave, Porter and Plaintiff, were those discharged by GPC. Evans does not present any evidence to refute this.

Regardless, even assuming that Plaintiff could somehow meet his burden of proof that a fact question exists as to whether the legitimate reasons offered by the Defendant were not its true reasons, a "mere scintilla of evidence of pretext does not create an issue of material fact in all cases." Crawford, 234 F.3d at 902-903. Rather, a plaintiff must adduce "sufficient evidence to find that [an] employer's asserted justification is false." Id. at 903 ( quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)). "It is, therefore, 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; see also Reeves, 530 U.S. at 148 (noting that summary judgment would be appropriate "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 had occurred"). And the sufficiency of a plaintiff's evidence "must be made on a case-by-case basis, depending on the nature, extent, and quality of the evidence." Crawford, 234 F.3d at 903.

In this case, it is undisputed that Evans was discharged on May 26, 2000 by Ms. Mendoza on orders from Dawn Anderson. See Anderson Decl. at 2; see also Def.'s Mot. at 6. And although Ms. Anderson only became aware of Plaintiff's situation after Ms. Mendoza contacted her, see Mendoza Dep. at 11, there is no suggestion in the record that Mendoza ever informed her during their conversations that Evans had filed a charge of discrimination against GPC, or that she at any time was contacted by anyone at the Mesquite facility in relation to these charges. See Id. at 37-38; see also Anderson Decl. at 3 (when she made the decision to discharge Evans she was unaware he had filed a charge with the EEOC or of any complaints made to any manager at the Mesquite facility). Therefore, the Court finds that, as a matter of law, no reasonable jury could hold here that GPC retaliated against Evans because of the filing of his discrimination charges. See Musgrove, 1999 WL 1080931 at *6. Thus, Evans has failed to establish the requisite causal link between his charge and GPC's actions, "i.e., that absent retaliation his employment would have continued." Jones, 793 F.2d at 725. Accordingly, summary judgment shall be granted to Defendant as to Plaintiff's retaliation claims.

Plaintiff also argues that under GPC's own attendance policy, his period of absence beginning March 1, 2000 would have constituted only one occurrence and thus his termination would not have justified unless he had accumulated at least five occurrences in the next twelve months. See Pl.'s Mot. at 8. However, this argument is without merit since the attendance policy itself clearly states that FMLA absences do not constitute "occurrences" for purposes of the attendance policy, and therefore are outside the policy's procedures. See Pl.'s App. Supp. Resp. at 2 ("Employee Attendance Standards").

CONCLUSION

For the reasons stated above, having considered the summary judgment evidence, the applicable law, and the parties' arguments, the Court is of the opinion that Defendant's Motion for Summary Judgment shall be and is hereby GRANTED.

So Ordered.


Summaries of

Evans v. Napa Auto Genuine Parts Co.

United States District Court, N.D. Texas
Oct 17, 2001
CIVIL ACTION NO. 3:00-CV-1383-P (N.D. Tex. Oct. 17, 2001)
Case details for

Evans v. Napa Auto Genuine Parts Co.

Case Details

Full title:LORENZO EVANS, Plaintiff, v. NAPA AUTO GENUINE PARTS CO., Defendant

Court:United States District Court, N.D. Texas

Date published: Oct 17, 2001

Citations

CIVIL ACTION NO. 3:00-CV-1383-P (N.D. Tex. Oct. 17, 2001)

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