Jose Hinojosa v. CCA Properties of America

Filing

UNPUBLISHED OPINION FILED. [10-40342 Affirmed] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 11/29/2010 [10-40342]

Jose Hinojosa v. CCA ase: 10-40342 Document: 00511284451 C Properties of America

Page: 1 Date Filed: 11/04/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40342 S u m m a r y Calendar November 4, 2010 Lyle W. Cayce Clerk

J O S E L. HINOJOSA, P la in t if f -A p p e lla n t , versu s C C A PROPERTIES OF AMERICA, LLC, Doing Business as Corrections Corporation of America, D e fe n d a n t -A p p e lle e .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:07-CV-97

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:*

J o s e Hinojosa appeals a summary judgment for CCA Properties of Am-

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 10-40342 Document: 00511284451 Page: 2 Date Filed: 11/04/2010

No. 10-40342 e r ic a , LLC ("CCA"), on his claims that he was discriminated against when he w a s allegedly constructively discharged. Because Hinojosa cannot show that he w a s constructively discharged, we affirm.

I. H in o jo s a worked as a warden from 1987 through August 2006 at a detent io n facility in Laredo, Texas, operated by CCA. At retirement in 2006, he was 6 2 years old. The events leading to his retirement began in May or June 2006, w h e n an employee at the Laredo facility complained that Hinojosa was allowing a n o t h e r employee verbally to abuse and sexually to harass the staff. CCA ass ig n e d Ruth Bellinger to investigate the complaints by interviewing other emp lo y e e s . She reported that morale was low, that Hinojosa was not at the facility a s much as he was supposed to be, that he refused to control the offending emp lo y e e , that favoritism was common, and that employees feared retaliation for c o m p la in in g . S h o r t ly thereafter, the Laredo facility's business manager called CCA h e a d q u a r t e r s and accused Hinojosa of arriving late and leaving early, cashing p e r s o n a l checks from the facility's inmate petty cash fund, and misreporting his r e im b u r s a b le gasoline and food expenses during official travel. In response, C C A sent two investigators to audit the facility's finances and to investigate the o t h e r complaints against Hinojosa. The investigators arrived on August 1 and met Hinojosa in the parking lot, w h e r e they informed him that they were reviewing the amount of time he spent a t the facility and the allegations of financial wrongdoing. The investigation c o n c lu d e d that all of the business manager's accusations were unfounded, except t h a t Hinojosa had cashed checks from the inmate petty cash fund. Hinojosa now c la im s that that did not violate company policy, because he had permission to do so. 2

Case: 10-40342 Document: 00511284451 Page: 3 Date Filed: 11/04/2010

No. 10-40342 O n August 3, Hinojosa participated in a conference call with CCA's Vice P r e s id e n t and the two investigators to discuss the findings; the participants disa g r e e about what exactly was said. Hinojosa testified that the Vice President s u g g e s t e d that it was time for him to retire, that he protested that he was not r e a d y to retire, and that he was told that the business manager's allegations w e r e unsubstantiated.1 One investigator remembers telling Hinojosa that the g a s o lin e reimbursement allegation was unsubstantiated, but the other denied s p e a k in g about any of the allegations. The Vice President, by contrast, recalls d is c u s s in g Hinojosa's admission that he borrowed from the petty cash fund. The Vice President then recalls stating that Hinojosa had stayed at the fa c ilit y too long and that he "had lost confidence" in Hinojosa's ability to continue in his position. The Vice President also testified that, during the call, Hinojosa a g r e e d to retire, but he denied ever telling Hinojosa that it was time to retire. None of the participants suggest that Hinojosa, during the call, was threatened w it h transfer or demotion. That afternoon, Hinojosa met one of the investigators in a parking lot, w h e r e the investigator gave him a letter to sign memorializing the terms of his r e t ir e m e n t. The letter recited the terms applicable to Hinojosa's stock options in CCA, noting that the options granted to him in 2004 would vest upon his ret ir e m e n t but that the options granted in 2005 and 2006 would be forfeited bec a u s e Hinojosa was retiring too early.2 Hinojosa read the letter and signed it v o lu n t a r ily , although he told the investigator that "this is not right." CCA then h ir e d a new warden, who was 52 years old.

The district court found that the remark did not refer to the accusations in the Bellinger report.
2

1

Had Hinojosa been fired, he would have lost all the stock options.

3

Case: 10-40342 Document: 00511284451 Page: 4 Date Filed: 11/04/2010

No. 10-40342 II. H in o jo s a sued CCA, alleging that he was discharged because of age, sex, r a c e , and national origin discrimination in violation of title VII of the Civil R ig h t s Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in E m p lo y m e n t Act, 29 U.S.C. §§ 626 et seq. ("ADEA").3 Because Hinojosa was not fir e d , but rather resigned, his claim rests on the argument that CCA's actions c o n s t r u c t iv e ly discharged him. CCA moved for summary judgment on the

g r o u n d that Hinojosa could not demonstrate working conditions so intolerable t h a t he was forced to retire, so he could not establish a claim for constructive d is c h a rg e .

III. W e review a summary judgment de novo. Stover v. Hattiesburg Pub. Sch. D is t., 549 F.3d 985, 991 (5th Cir. 2008). Summary judgment is appropriate "if t h e pleadings, the discovery and disclosure materials on file, and any affidavits s h o w that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). "A genuine iss u e of material fact exists if the summary judgment evidence is such that a reas o n a b le jury could return a verdict for the non-movant." Stover, 549 F.3d at 991. We view the evidence in the light most favorable to the non-movant. Id. To make out a claim for constructive discharge, Hinojosa must show that h is working conditions became "so intolerable that a reasonable person would h a v e felt compelled to resign." Penn. State Police v. Suders, 542 U.S. 129, 147 (2 0 0 4 ). The test is objective, asking whether a "reasonable employee" in Hinojos a 's circumstances would have felt compelled to resign, not whether he actually fe lt compelled to resign. Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297

3

Hinojosa later abandoned his race discrimination claim.

4

Case: 10-40342 Document: 00511284451 Page: 5 Date Filed: 11/04/2010

No. 10-40342 n .1 9 (5th Cir. 1994). Proof that the employer intended to create the intolerable c o n d it io n s is not required, see Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1 9 9 0 ), although "manifestations" of that intent might be relevant to the inquiry, id . at 393 n.10. W e must therefore decide whether there is enough evidence in the summ a r y judgment record to allow a reasonable jury to conclude that a reasonable e m p lo y e e in Hinojosa's position would have felt compelled to retire. Courts have r e c o g n iz e d seven factors tending to show the existence of intolerable circums t a n c e s , including: (1) demotion; (2) reduction in salary; (3) reduction in job responsibili t ie s ; (4) reassignment to menial or degrading work; (5) reassignm e n t to work under a younger supervisor; (6) badgering, harassm e n t , or humiliation by the employer calculated to encourage the e m p lo y e e 's resignation; or (7) offers of early retirement on terms t h a t would make the employee worse off whether the offer was acc e p t e d or not. B a r r o w , 10 F.3d at 297. Hinojosa's allegations do not implicate factors one through five. Instead, h e contends that the investigations of his conduct were unjustified and therefore c o n s t it u t e d harassment and that he was threatened with discharge if he did not a c c e p t early retirement. But there is no dispute that CCA was legitimately conc e r n e d about Hinojosa's behavior after receiving complaints and was justified in in it ia tin g the investigation. Hinojosa falls back on the argument that the invest ig a t io n s were nonetheless pretextual because even after most of the allegations w e r e found to be false, the Vice President continued to urge him to retire and s t a t e d that he had no confidence in Hinojosa. Hinojosa sees in these comments a veiled threat to fire him if he did not voluntarily retire. E v e n if a jury were to agree that the Vice President's remarks were a

5

Case: 10-40342 Document: 00511284451 Page: 6 Date Filed: 11/04/2010

No. 10-40342 v e ile d threat to fire,4 the argument fails for three reasons. First, it overlooks t h a t the investigations did not discredit the Bellinger report's finding of w id esp rea d dissatisfaction among the employees serving under Hinojosa, nor did it excuse Hinojosa's mishandling of the employee who was sexually harassing t h e staff. CCA thus had sufficient concerns about Hinojosa's behavior, even after t h e investigations, to justify a threat to fire him for poor performance.5 The p o s s ib ilit y that CCA's dissatisfaction would lead to Hinojosa's firing was thus a le g it im a t e risk that he had to bear, not part of an improper retirement offer making him worse off if he chose not to retire. Second, Hinojosa was aware of the complaints, including the allegations in the Bellinger report. Thus, when the Vice President stated that he had no c o n fid e n c e in Hinojosa and asked him to retire, Hinojosa had no reason to interp r e t those comments as anything other than a valid expression of concern about h is performance. He thus had no reason to assume that CCA was attempting to t r u m p up the charges to force him to retire. Third, "part of an employee's obligation to be reasonable is an obligation n o t to assume the worst, and not to jump to conclusions too fast."6 Consequently, b e fo r e agreeing to retire in response to what he believed to be a pretextual

Because the witnesses gave different accounts of the conference call, it is possible for a jury to find that the Vice President did not even make these remarks. In that case, however, Hinojosa had no reason to believe that he might be fired if he did not retire. In the absence of such a threat, there is no possibility that his working conditions had become so "intolerable" that he had no choice but to retire. See Henn v. Nat'l Geog. Ass'n, 819 F.2d 824, 829-30 (7th Cir. 1987) (holding that threats to fire employees based on legitimate concerns about productivity do not constitute harassment, because "any threats made to these plaintiffs . . . were no greater than justified by their lack of sales"). Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481-82 (5th Cir. 2008) (quoting Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987)), abrogated in part on other grounds as stated in Donaldson v. CDB Inc., 335 F. App'x 494, 506 (5th Cir. 2009) (per curiam).
6 5

4

6

Case: 10-40342 Document: 00511284451 Page: 7 Date Filed: 11/04/2010

No. 10-40342 t h r e a t, a reasonable employee would have questioned his superiors about their in t e n t io n s .7 Hinojosa thus should have tried to determine whether the Vice P r e s id e n t 's threat was legitimate or whether, instead, further investigation m ig h t have restored his confidence in Hinojosa's ability. Instead, Hinojosa volu n t a r ily signed the retirement letter only a few hours after the Vice President's rem ark . F in a lly , Hinojosa points to the statement of one of the investigators that " I had to fire Joe" as evidence that the investigations were pretextual. But that r e m a r k came after Hinojosa had retired, so it provides no evidence that CCA t r u m p e d up the investigation to coerce him into retiring. Instead, it merely indic a t e s the investigator's legitimate conclusions about the results of the investig a tio n . In short, there is no evidence supporting a conclusion that the conditions o f Hinojosa's job were so intolerable that he had no reasonable choice but to ret ir e . Thus, he has failed to establish a genuine issue of material fact. The judgm e n t is AFFIRMED.

See Haley v. Alliance Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004) ("[A] reasonable employee who genuinely felt these working conditions were upsetting to the point of intolerable would have attempted resolution of these concerns before choosing to quit . . . .").

7

7