Marquez v. Tyson Farms Inc

Filing 28

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/31/13. (SAC )

FILED
2013 Jul-31 PM 02:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAVIER P. MARQUEZ,

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Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.

CIVIL ACTION NO.
2:12-CV-00492-WMA

MEMORANDUM OPINION
Before the court is the motion of defendant, Tyson Foods, Inc.
(“Tyson”), for summary judgment as to all remaining claims brought
by plaintiff, Javier P. Marquez (“Marquez”). Doc. 21. Marquez
brought

suit

against

Tyson

for

race

and

national

origin

discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C.§ 2000e et seq., fraud, outrage, and defamation. Following
Tyson’s earlier motion to dismiss Marquez’s fraud, outrage, and
defamation

claims,

this

court

dismissed

Marquez’s

fraud

and

defamation claims on September 26, 2012. For the reasons stated
below, Tyson’s motion for summary judgment will be granted as to
the remaining claims.
Background1

1

Marquez is the non-movant. Rule 56, F.R.Civ.P.,requires that all
admissible evidence, together with all reasonable inferences therefrom, be
viewed in the light most favorable to him. However, Marquez’s brief does not
present facts, and Marquez does not submit any evidence. Thus it is difficult,
if not impossible, for the court to view the facts more favorably to plaintiff
than defendant presents them.

1

Tyson

is

a

producer

and

marketer

of

protein

products,

including beef, pork and chicken. Marquez, who is Hispanic, was an
employee at Tyson’s processing plant in Blountsville, Alabama, from
February 11, 2008, until he was terminated on December 22, 2010. He
was terminated after an incident that took place on December 16,
2010.
On December 16, 2010, Marquez was in the break room of the
Tyson processing plant when he found a pair of earplugs. When he
left to return to his work station, he draped the string over an
air conditioning fixture in the form of a noose and left the room.
Robert Herndon

(“Herndon”),

who

was

also

in

the

break

room,

reported to his supervisor, Yolonda Cook (“Cook”), that Marquez had
hung the string in the shape of a noose. Cook reported what she had
been told to Jan Casey (“Casey”), the Human Resources Manager.
Casey summoned Marquez, and ,with the help of a translator,
they interviewed Marquez about the incident. They asked Marquez if
he had hung the earplugs in the break room.

Marquez replied that

he had but that he thought “nothing of it.” He maintains that
although he did make a loop with the earplugs, he did not intend to
create a noose, and he did not know the offensive significance of
a noose. At the meeting he signed a statement that said
I was just sitting there playing with the
earplug string. I just started making a knoose
[sic]. If I knew it was disrespectful I would
not have made it. I hung it on the air vent. I
didn’t say a name or anything. I just hung it
up.
2

Following the interview, Tyson suspended Marquez for 3 days. When
he returned to work on December 22, he was fired and told that it
was a result of the noose incident.
Marquez subsequently filed a claim for unemployment benefits
with the

Alabama

Unemployment

Department of

Compensation

Industrial

Division.

He

was

Relations
initially

(“ADIR”)
awarded

unemployment compensation but Tyson appealed the decision, and the
ADIR determined that he was not due unemployment benefits, finding
he had been “discharged for misconduct.” Marquez appealed this
denial to the Circuit Court of Blount County, but that court
entered summary judgment in favor of ADIR and Tyson. He then
appealed the

summary

judgment

to

the Alabama

Court

of Civil

Appeals, which affirmed the lower court.
Analysis
Title VII
Title

VII

precludes

individual, or otherwise

employers

from

discharging

“any

discriminat[ing] 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)(1); Maynard v.
Bd. of Regents, 342 F.3d 1281, 1288 (11th Cir. 2003). Under the
applicable framework, Marquez may establish unlawful discrimination
by presenting direct or circumstantial evidence.

“Direct evidence

of discrimination is evidence, that, if believed, proves
3

the

existence of a fact in issue without inference or presumption.”
Rojas v.

Florida,

285

F.3d

1339,

1342

n.2

(internal quotations and citation omitted).

(11th

Cir.

2002)

Evidence that merely

suggests a discriminatory motive, is, by definition, circumstantial
evidence.

Burrell v. Bd. of Trustees of Ga. Military Coll., 125

F.3d 1390, 1393-94 (11th Cir. 1997). Marquez does not offer any
direct evidence of discrimination. Thus, the analytical framework
established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), is applied to his case.

Under this

framework, Marquez must first establish a prima facie case of
discrimination, which, if established, creates a presumption of
discrimination.

In order to make a prima facie case, Marquez must

demonstrate that: (1) he is a member of a protected class; (2) he
was

qualified

for

his

position;

(3)

he

suffered

an

adverse

employment action; and (4) he was replaced by a person outside his
protected class or was treated less favorably than a similarlysituated individual outside his protected class. Maynard, 342 F.3d
at 1289. Because this is at the summary judgment stage, Marquez is
only required to show that there is a question of material fact as
to each of these elements.
Tyson does not dispute the existence of the first three
elements. However, Tyson does argue that Marquez has not satisfied
and can not satisfy the fourth element.
fourth element’s

requirement

that
4

Tyson focuses on the

plaintiff

point

to

a

more

favorably treated similarly-situated employee outside his protected
group and ignores the theoretical possibility that Marquez can
establish a prima facie case by demonstrating that he was replaced
by someone outside of his protected group. Tyson undoubtedly counts
on the court’s perception that there is no evidence whatsover to
reflect that Marquez was replaced by a non-Hispanic. Tyson succeeds
because Marquez fails to respond to Tyson’s argument regarding a
similarly-situated employee, as well as fails to offer evidence
regarding his replacement. Although the evidence is viewed in the
light most favorable to the plaintiff, Marquez has not given the
court any evidence to construe in his favor. The burden is on
Marquez to do more than to roll over and play dead.

See Resolution

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
Although the wisdom of Tyson’s decision to terminate Marquez
is not a matter for the court under Title VII consideration, it is
understandable why Tyson would want jealously to guard itself
against any claim that it tolerates the display of a racist symbol
in the workplace. Tyson was not required to overlook Marquez’s
provocative action just because he says he was unaware of the
significance of the noose. Most employers in today’s world are
skittish about nooses.
Marquez has failed to demonstrate that there is question of
fact prima facie case. Therefore, Tyson’s summary judgment will be
granted

as

to

the

claims

of

5

race

and

national

origin

discrimination.
Outrage
The tort of outrage is meant to give a plaintiff relief when
a defendant has engaged in “conduct so outrageous in character and
so extreme in degree as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in
a civilized society.” American Road Service Co. v. Inmon, 394 So.
2d 361 (Ala. 1980). Outrage is a very limited cause of action that
the Alabama Supreme Court has only recognized a few times. See
Little v. Robinson, 72 So.3d 1173 (Ala. 2011). Tyson argues that
none of Marquez’s allegations
“come[] close to any of these other contexts
in which the court has determined that the
acts of the defendants were ‘beyond all
possible bounds of decency,’ ‘atrocious’ and
‘utterly intolerable in a civilized society.’”
Marquez makes no real effort to respond to Tyson’s argument.
The only part of Marquez’s brief that even comes close to an
argument regarding the outrage claim is as follows:
The facts in the case indicate that Mr. Del
Carmen and Ms. Casey took advantage of the
Plaintiff’s lack of proficiency with the
English language and used that as a basis to
stain him with the degrading symbol of racism
and intolerance even though they knew full
well that the Plaintiff had no racist or
intolerant intent. Those actions constitute
discriminatory conduct towards the Plaintiff
based on his national origin and certainly
fall outside the bounds of decency.”
Although

Marquez

does

not

even

6

identify

this

as

an

act

of

outrageous conduct, the court will assume that is what he was
getting at when he said “fall outside the bounds of decency.”
When he says “the facts indicate,” Marquez does not tell the
court what the “facts” are that he is talking about. He has not
responded to Tyson’s arguments, and has not cited any law to
support his outrage claim. Plaintiff has not even given the court
enough information with which to form an argument if it wanted to
take up the mantle of advocate.
Conclusion
For the above stated reasons, Tyson’s motion for summary
judgment will be granted by separate order.

DONE this 31st day of July, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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