Love
v.
CCC Group, Inc.

United States District Court, W.D. Texas, San Antonio DivisionMar 14, 2005
Civil Action No. SA-04-CA-594-XR. (W.D. Tex. Mar. 14, 2005)

Civil Action No. SA-04-CA-594-XR.

March 14, 2005


ORDER


On this date, the Court considered Defendant's Motion for Summary Judgment (docket no. 14). Plaintiff filed no response. Plaintiff sues his former employer for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. In addition, he brings claims under 42 U.S.C. §§ 1981 and 1983. For the reasons stated below, the Court GRANTS Defendant's motion. However, because Defendant never sought summary judgment regarding Plaintiff's Title VII retaliation claim that claim remains pending.

Facts and Procedural Background

Plaintiff, a Black American, began work for CCC in 1988 as a millwright. He alleges that during unspecified periods of time he was called racially disparaging names. Plaintiff alleges that the Project Engineer, Ed Austin, was aware of the name calling, but did nothing to stop it. Plaintiff also alleges that he complained to Gary Francis about the name calling. Plaintiff also alleges that at various unspecified times he was "acting foreman." He alleges that he received a minimal pay increase while serving in that capacity, but alleges that white employees serving as acting foreman received larger pay increases. He further alleges that white acting foremen were given an access key to the job site trailer and invited to various social functions, but that he was not provided a key or extended any invitations.

Plaintiff's position at CCC is at-will. His position is evidently subject to CCC obtaining contracts with third parties and his position terminates upon the completion of a project. Defendant has provided evidence that demonstrates that Plaintiff last did work as a foreman in 1998. Otherwise, he was rehired on projects from 1999 through 2003, In October 2002, Plaintiff began working at a Coors brewery project in Colorado. He was later terminated in a reduction in force in November 2002. Plaintiff has made no complaints about his treatment by CCC in 2002.

A second phase of the Coors project began in December 2002 and Plaintiff was hired as a millwright on January 7, 2003. When Plaintiff was hired in January 2003, CCC was working a 6 day/10 hour schedule, however, the client complained that the project was behind schedule and all employees were informed that it would be necessary to work a 7 day/12 hour schedule until further notice. Plaintiff objected and refused to work the new schedule. He was eventually offered the choice of working 5 days per week, 8 hours per day or the new 7/12 schedule. Plaintiff refused, left the work site and now claims constructive discharge. Plaintiff complains that one week after his departure, a white employee, Sam Weaver, complained of the 7/12 schedule and the schedule was later changed to the original 6/10 schedule.

Plaintiff's deposition testimony indicates: (1) he has no personal knowledge that Weaver actually complained to CCC management; (2) all other employees worked the new shift; (3) Plaintiff was the only employee who walked off the job site; and (4) Plaintiff does not know why the schedule reverted back to the original 6/10 schedule. Defendant's evidence states that the altered schedule was implemented for so long as it took for CCC to "catch up" on the project, and that was accomplished in a "week or so." By that time Plaintiff had already left Colorado and gone back home to Texas.

Summary Judgment Standard

A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).

Summary judgment is required 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); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).

Analysis

Discriminatory Pay Claim

Plaintiff asserts that he was subjected to discriminatory compensation practices. Defendant argues that those claims are barred by limitations. Plaintiff's deposition testimony indicates that Plaintiff's discriminatory compensation claims involve conduct that occurred between 1994 and 1998.

Plaintiff filed his charge of discrimination with the Equal Employment Opportunity Commission on September 8, 2003. Plaintiff was required by 42 U.S.C. § 200e-5(e)(1) to file his charge of discrimination within 300 days after the alleged unlawful employment practice occurred. Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002). Plaintiff's complaints of discrete payroll acts that occurred between 1994 and 1998 are barred by limitations. Likewise, any section 1981 claim is barred by that section's two-year limitations period. Jones v. Alcoa, Inc., 339 F.3d 359, 368 (5th Cir. 2003), cert. denied, 540 U.S. 1161 (2004). Summary judgment is GRANTED as to the discriminatory pay claims.

This lawsuit was filed on June 3, 2004.

Constructive Discharge Claim

Constructive discharge occurs when an employee has quit her job under circumstances that are treated as an involuntary termination of employment. "The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee." Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990). Whether an employee would feel forced to resign is case- and fact-specific, but Courts consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger (or less experienced/qualified) supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement (or continued employment on terms less favorable than the employee's former status). Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).

The test a Plaintiff must meet is an objective, "reasonable employee" test: whether a reasonable person in the plaintiff's shoes would have felt compelled to resign. Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 n. 19 (5th Cir. 1994). Constructive discharge requires a greater degree of harassment than that required by a hostile environment claim. Brown, 237 F.3d at 566. Aggravating factors used to support constructive discharge include hostile working conditions or the employer's invidious intent to create or perpetuate the intolerable conditions compelling the resignation. Jurgens, 903 F.2d at 393 n. 10; see also Brown, 237 F.3d at 566 (noting that "[d]iscrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge"). The resigning employee bears the burden to prove constructive discharge. Jurgens, 903 F.2d at 390-91.

The undisputed evidence is that all employees were required to work the new 7/12 schedule, that Plaintiff was the only employee to refuse the new schedule, that Plaintiff walked off the job site, and was offered the choice to work a 40-hour week or the new schedule and he refused both options. Summary Judgment is GRANTED to Defendant as to Plaintiff's constructive discharge claim.

Title VII/Section 1981 Discharge Claim

Even assuming Plaintiff has somehow established a constructive discharge claim, Defendant has established a legitimate, non-discriminatory reason for Plaintiff's cessation of employment — the client complained that the project was behind schedule and all employees were required to work the new 7/12 schedule. Plaintiff offers no evidence that the employer's articulated reason is pretextual. Plaintiff offers no evidence that other employees received more favorable working hours than he was subjected to. Plaintiff states in his deposition testimony that Sam Weaver also groused about the new schedule, but Plaintiff presents no evidence that Weaver refused to work the new schedule. Summary Judgment is also proper on this alternative basis to Plaintiff's termination claim.

Section 1983 Claim

Section 1983 requires state action. CCC is a private corporation, not a state actor. Maynard v. Price Realty Co., 102 Fed. Appx. 854 (5th Cir. 2004). Summary Judgment is GRANTED to Defendant as to Plaintiff's section 1983 claim.

Racial Slurs Claim

Plaintiff's deposition testimony indicates that his racial slurs claim involves conduct that occurred in 2001. The Court agrees that this claim is barred by Title VII's limitations period. The claim would also be barred by section 1981's limitations period.

As noted above, Plaintiff filed his charge of discrimination with the Equal Employment Opportunity Commission on September 8, 2003. Plaintiff was required by 42 U.S.C. § 200e-5(e)(1) to file his charge of discrimination within 300 days after the alleged unlawful employment practice occurred. Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002).

Plaintiff also alleges that after he walked off the Coors job site because of the changed schedule, he overheard Project Superintendent Kevin Correll talking with another individual and that Correll referred to Plaintiff as a "nigger" at that time. Defendant argues that even assuming the statement was made, since it was made after Plaintiff walked off the job site and was overheard by Plaintiff but not directed at Plaintiff, it does not alter the fact that Plaintiff cannot establish that he voluntarily quit his employment. The Court agrees. Summary Judgment is GRANTED regarding Plaintiff's racial slurs claim.

CCC Project Superintendent Gary Francis states in his Affidavit that at no time did Plaintiff ever complain to him about any derogatory remark being made.

Retaliation Claim

Plaintiff has also pled a claim of Title VII retaliation. It appears that Plaintiff argues that he was retaliated against for complaining about the schedule and constructively discharged, but a white employee (Weaver) complained and suffered no adverse employment act. Defendant presented evidence establishing that Weaver never refused to work the altered schedule, however, Defendant never has actually sought summary judgment with regard to Plaintiff's Title VII retaliation claim. Accordingly, that claim remains pending. The Court will allow Defendant to file a second motion for summary judgment regarding that claim. Defendant should confer with Plaintiff's counsel to determine if Plaintiff intends to pursue his retaliation claim and if a second motion will be opposed. Such a motion should be filed within 10 days of the date this Order is signed.

Plaintiff in his charge of discrimination claimed he was retaliated against for complaining of previous racial slurs. Plaintiff has made no such allegation, however, in his Complaint. In fact, Plaintiff makes no reference that he complained to anyone of Correll's alleged comment.

Conclusion

The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (docket no. 14) is GRANTED. However, because Defendant never sought summary judgment regarding Plaintiff's Title VII retaliation claim that claim remains pending.