Becerra v. Ms Ellie's Kitchen
Filing
28
ORDER granting 20 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 10/31/12. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUAN BECERRA
CIVIL ACTION
VERSUS
NO: 11-1833
MS. ELLIE’S KITCHEN
SECTION: R
ORDER AND REASONS
Before the Court is defendant’s motion for summary judgment.
For the following reasons, the Court GRANTS defendant’s motion.
I.
BACKGROUND
This is an age discrimination suit by a former employee
against his former employer. Defendant, Ms. Ellie’s Kitchen,
employed plaintiff, Juan Becerra, as kitchen manager until he was
fired on April 19, 2010.1 Ms. Ellie’s Kitchen was owned by
plaintiff’s uncle and aunt. Plaintiff was an at-will employee and
defendant did not hire another kitchen manager to replace him.2
Instead, defendant allocated plaintiff’s former responsibilities
to four of its existing employees.3
The parties dispute why plaintiff was fired. Defendant
asserts that plaintiff was fired because of his insubordination,
1
R. Doc. 1 at 1.
2
R. Doc. 20-3 at 1; R. Doc. 24-1 at 1.
3
Id.
poor performance, verbal abuse of his coworkers, and suspected
theft of supplies.4 Plaintiff counters that these stated reasons
are a pretext for discrimination.
As proof of defendant’s discrimination, plaintiff alleges
that Ms. Ellie’s owner, his uncle Constacio Izzaguire, frequently
yelled at him and routinely referred to him as old by using a
variety of derogatory terms.5 Plaintiff further alleges that the
last time that Constancio Izzaguire referred to him as old was
“about a week before he was fired.”6
Plaintiff filed this suit on July 29, 2011. He originally
alleged that defendant had discriminated against him on the basis
of his race, had fired him in retaliation for his complaints, and
had also fired him because of his age.7 Plaintiff then abandoned
his claims for racial discrimination and retaliation.8
Accordingly, those claims are dismissed.
Plaintiff’s remaining claim is for age discrimination under
the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621-634. Defendant now moves for summary judgment.9
4
R. Doc. 20-1 at 2-5.
5
R. Doc. 20-4 at 2; R. Doc. 24-1 at 3.
6
R. Doc. 24-1.
7
Id. at 1-2.
8
R. Doc. 20-4 at 2.
9
R. Doc. 20.
2
II.
STANDARD
A.
Summary Judgment Standard
Summary judgment is warranted when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers “all of the evidence in the record but
refrains from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences
are drawn in favor of the nonmoving party, but “unsupported
allegations or affidavits setting forth ‘ultimate or conclusory
facts and conclusions of law’ are insufficient to either support
or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting Wright &
Miller, Fed. Prac. and Proc. Civ. 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
3
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
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 is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. 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 id. at 324.
The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. Id. at
325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (quoting Celotex, 477 U.S. at 332).
B. The Age Discrimination in Employment Act (“ADEA”)
Filing Requirements
Before proceeding with a civil action under the ADEA, a
plaintiff must timely file a charge of age discrimination with
4
the Equal Employment Opportunity Commission (“EEOC”). Clark v.
Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988); Julian v.
City of Houston, 314 F.3d 721, 725-26 & n.5 (5th Cir. 2002). The
amount of time that a plaintiff has to file a charge with the
EEOC depends on whether the unlawful practice occurred in a
“nondeferral” state or a “deferral” state. If the unlawful
practice occurred in a nondeferral state, then plaintiff must
file within 180 days after the alleged unlawful practice
occurred. 29 U.S.C. § 626(d). If the unlawful practice occurred
in a deferral state, then the time limit is extended to 300 days.
Id. To qualify as a deferral state for the purposes of the ADEA,
a state must have (1) a state law prohibiting age discrimination
in employment and (2) a state authority that can grant or seek
relief from such discriminatory practice. 29 U.S.C. §§ 626(d),
633(b); Clark, 854 F.2d at 765 n.1. Louisiana is a deferral state
for the purposes of the ADEA. See Walton-Lentz v. Innophos, Inc.,
No. 11-30299, 2012 WL 1428899, at *3 (5th Cir. Apr. 25, 2012);
Conner v. Louisiana Dep’t of Health & Hosp., 247 Fed. App’x 480,
481 (5th Cir. 2007). Accordingly, because plaintiff was fired in
Louisiana, the 300-day period applies in this case.10
Further, a plaintiff must wait 60 days after filing a charge
with the EEOC before bringing suit in federal court. 29 U.S.C. §
626(d)(1). If the EEOC dismisses or terminates the plaintiff’s
10
R. Doc. 20-9.
5
charge, the plaintiff then has 90 days from the day it receives
notice from the EEOC to bring a civil action. 29 U.S.C. § 626(e).
Substantive Test
The ADEA prohibits an employer from firing an employee
“because of such individual’s age”. 29 U.S.C. § 623(a)(1). To
establish an ADEA claim, a plaintiff must “prove by a
preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the
challenged employer decision.” Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 177-78 (2009).
In Gross, the Court held that a “mixed-motive jury
instruction,” is never available under the ADEA. Gross, 557 U.S.
at 169. A mixed-motive jury instruction states that if an
employee proves that an adverse employment action was the result
of both permissible and impermissible motives, the burden of
persuasion shifts to the employer to demonstrate that it would
have proceeded with the employment action notwithstanding the
improper motive. Gross, 557 U.S. at 174 (citations omitted); see
also Smith v. City of Allentown, 589 F.3d 684, 690-91 (3d Cir.
2009) (discussing the implications of Gross on ADEA claims).
Gross overruled the Fifth Circuit’s cases that utilized the
mixed-motive analysis for ADEA claims based on direct evidence of
age discrimination. See, e.g., Machinchick v. PB Power, Inc., 398
F.3d 345, 250 (5th Cir. 2005) (“Plaintiffs presenting direct
6
evidence of age discrimination may proceed under the ‘mixedmotive’ analysis set forth in Price Waterhouse.”).
Gross also noted: “[T]he Court has not definitely decided
whether the evidentiary framework of [McDonnell Douglass],
utilized in Title VII cases is appropriate in the ADEA context.”
Gross, 557 U.S. at 175-76 n.2. The Fifth Circuit, however,
continues to apply the “McDonnell Douglas” framework to ADEA
claims after Gross. See, e.g., Holliday v. Commonwealth Brands,
Inc., No. 12-30278, 2012 WL 3176316, at *3 (5th Cir. Aug. 3,
2012); Manaway v. Med. Ctr. of Southeast Tex., 430 Fed. App’x
317, 378 (5th Cir. 2011); Moss v. BMC Software, Inc., 610 F.3d
917, 922-923 (5th Cir. 2010); Jackson v. Western Packaging Corp.,
602 F.3d 374, 378 (5th Cir. 2010) (“[W]e are bound by our circuit
precedent applying McDonnell Douglas to age discrimination
cases”).
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
a plaintiff must first establish a prima facie case that:
(1) he was discharged; (2) he was qualified for the
position; (3) he was within the protected class at the time
of the discharge; and (4) he was either i) replaced by
someone outside the protected class, ii) replaced by someone
younger, or iii) otherwise discharged because of his age.
Holliday, 2012 WL 3176316, at *3 (citation omitted). After the
employee establishes a prima facie case, the burden of production
shifts to the employer to articulate a “legitimate, nondiscriminatory reason for terminating the plaintiff.” Id. at *4.
7
If the employer articulates a legitimate, non-discriminatory
reason for terminating the employee, the plaintiff must then
rebut the employer’s purported explanation by showing that the
employee’s reason is pretextual. Moss, 610 F.3d at 922.
Consistent with Gross, the burden of persuasion remains with the
employee at all times, but the “burden of production and the
order of presenting proof” are allocated in accordance with the
McDonnell Douglas framework. Jackson, 602 F.3d at 377-78.
III. DISCUSSION
Defendant’s motion for summary judgment rests on two
grounds: (1) plaintiff failed to file a charge of discrimination
with the EEOC within 300 days of his termination and (2) that
plaintiff’s claim for age discrimination fails as a matter of
law.11
A. Plaintiff Has Complied with the EEOC Filing Requirements
Plaintiff was terminated on April 19, 2010.12 From that
date, plaintiff had 300 days, or until February 13, 2011, to file
his charge of discrimination with the EEOC. Although plaintiff
did not file his official charge until April 6, 2011,13 he filed
his intake questionnaire with the EEOC on June 4, 2010.14 If the
11
R. Doc. 20-1.
12
R. Doc. 1.
13
R. Doc. 20-4 at 1.
14
R. Doc. 20-4 at 1.
8
intake questionnaire constitutes a “charge,” then plaintiff has
passed this procedural hurdle. If not, his filing was outside of
the 300 day window.
In Holoweck, the Supreme Court held that an intake
questionnaire constitutes a “charge” for the purposes of the ADEA
if it contains all of the regulatory requirements in 29 C.F.R. §§
1626.6, 1626.8, and “it [can] be reasonably construed as a
request for the agency to take remedial action to protect the
employee’s rights or otherwise settle a dispute between the
employer and the employee.” Fed. Express Corp. V. Holoweck, 552
U.S. 389, 402 (2008). The Court recognized, “under this
permissive standard a wide range of documents might be classified
as charges.” Id. at 402.
Plaintiff’s intake questionnaire satisfies the requirements
of section 1626.6 and section 1626.8 because it identifies
plaintiff, his employer, the facts giving rise to the unlawful
termination, the number of employees of the employer, and denies
that other proceedings involving the alleged unlawful employment
practice were commenced before a state agency.15 See 29 C.F.R. §§
1626.6, 1626.8.
The questionnaire meets the Holoweck standard because
plaintiff checked “box 2" indicating that he wanted “to file a
15
R. Doc. 24-1.
9
charge of discrimination.”16 The questionnaire instructs: “If you
want to file a charge, you should check Box 2."17 Selecting box 2
authorizes the EEOC to “look into the discrimination” described
in the questionnaire and allows the EEOC to contact the employer
about the claim.18 If plaintiff had selected box 1 on the
questionnaire, he would have requested only a conversation with
an EEOC employee before deciding whether to file a charge.19 Box
1 instructs: “I understand that by checking this box, I have not
filed a charge with the EEOC.” Accordingly, the questionnaire
“[can] be reasonably construed as a request for the agency to
take remedial action to protect the employee’s rights or
otherwise settle a dispute between the employer and the
employee.” Holoweck, 552 U.S. at 402 (2008).20 The questionnaire
“give[s] rise to the inference that the employee request[ed]
action against the employer.” Id. at 405.
As further evidence that the questionnaire could reasonably
be considered a request for action, the EEOC treated plaintiff’s
intake questionnaire as a charge. On March 25, 2011, the EEOC
responded to plaintiff’s intake questionnaire: “Because the
16
Id.
17
Id.
18
R. Doc. 24-1 at 9.
19
R. Doc. 24-1 at 9.
20
R. Doc. 24-1 at 9.
10
document that you submitted to us constitutes a charge of
employment discrimination, we have complied with the law and
notified the employer that you filed a charge.”21 Accordingly,
the intake questionnaire satisfied the charge requirement. See,
e.g., Sebastian v. Universal Tech. Inst., Inc., No. 6:11-cv-1597ORl-28KRS, 2012 WL 1447911, at *2-3 (M.D. Fla. Apr. 26, 2012)
(holding that an intake questionnaire constituted a charge when
“the circumstances of the case would convince a reasonable person
that the charging party manifested [] intent to activate the
administrative process by filing the intake questionnaire”)
(citation omitted).
Accordingly, plaintiff filed a charge on June 6, 2010, well
within the 300 day time period. This holding is consistent with
the “permissive standard” of Holoweck and recognizes that the
AEDA “sets up a remedial scheme in which laypersons, rather than
lawyers, are expected to initiate the process.” Holoweck, 552
U.S. at 402.
Defendant concedes that plaintiff filed this suit within 90
days of receiving his right to sue letter from the EEOC.22
Accordingly, plaintiff timely filed his charge with the EEOC and
properly filled this suit in this Court.
B. Direct Evidence of Discrimination
21
R. Doc. 20-8 at 2.
22
R. Doc. 25-2 at 6.
11
Plaintiff’s opposition to summary judgment advances the
erroneous argument that plaintiff has produced direct evidence
that discrimination “was a ‘motivating factor’ among the mixed
reasons defendant fired him.”23 Plaintiff argues that this
evidence makes this a “mixed-motive” case.24 Gross expressly
rejected the application of the motivating-factor standard for
ADEA cases, and to the extent that plaintiff alleges that
“discrimination was a motivating factor-rather than the “but for”
cause–[of defendant’s decision],” his claims must fail. Moss, 610
F.3d at 928 (“A plaintiff brining an ADEA claim must prove, by a
preponderance of the evidence, that age was the “but-for” cause
of the challenged adverse employment action”); see Gross, 557
U.S. at 178-79.
Plaintiff also mischaracterizes Constancio Izaguirre’s
derogatory comments as “direct evidence” that plaintiff was
“otherwise fired because of his age.”25 The Fifth Circuit has
held that ageist comments are evidence of discrimination only if
they are “1) related to the protected class of persons of which
the plaintiff is a member; 2) proximate in time to the
complained-of adverse employment decision; 3) made by an
individual with authority over the employment decision at issue;
23
R. Doc. 24 at 6.
24
R. Doc. 24 at 1.
25
R. Doc. 24 at 1, 5-6.
12
and 4) related to the employment decision at issue.” Jackson, 602
F.3d at 380. Comments failing this test are “stray remarks,” and
“standing alone, [they] are insufficient to defeat summary
judgment.” Id.; see also E.E.O.C. v. Texas Instruments, Inc., 100
F.3d 1173, 1181 (5th Cir. 1996) (“In order for an age-based
comment to be probative of an employer’s discriminatory intent,
it must be direct and unambiguous, allowing a reasonable jury to
conclude without any inferences or presumptions that age was an
impermissible factor in the decision to terminate the
employee.”).
Constancio Izaguirre’s comments are stray remarks because
there is no evidence in the record that they “relate to the
employment decision at issue.” Jackson, 602 F.3d at 374. In fact,
the evidence in the record suggests that age was irrelevant to
defendant’s decision since many of the existing employees who
assumed plaintiff’s responsibilities were over 40 years old.26
Plaintiff does not produce any evidence establishing a nexus
between Izaguirre’s comments and his firing. Plaintiff
establishes only that “the comments were, in fact, made,” which,
“standing alone, will not defeat summary judgment.” Rubinstein v.
Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir.
2000); see also Jackson, 602 F.3d at 377 (employer’s derogatory
comment that employee was old was not direct evidence”).
26
R. Doc. 24-1 at 1.
13
C. Circumstantial Evidence of Discrimination
Plaintiff’s only remaining avenue to relief is to
demonstrate that circumstantial evidence in the record
establishes age discrimination. But the circumstantial evidence
in the record is insufficient to survive summary judgment
because, applying McDonnell Douglas, no reasonable juror could
find that age was the but-for cause of plaintiff’s termination.
1. Prima Facie Case
Plaintiff’s initial burden is to establish a prima facie
case of age discrimination by providing evidence that: (1) he was
discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of the discharge; and (4)
he was either replaced by someone outside the protected class,
replaced by someone younger, or otherwise discharged because of
his age. Holliday, 2012 WL 3176316, at *3. Defendant concedes
that plaintiff has established the first three elements of a
prima facie case,27 and plaintiff admits that he was not replaced
by someone outside the protective class or replaced by someone
younger.28 Instead, plaintiff alleges that he was “otherwise
fired because of his age.”29
27
R. Doc. 25-2 at 3.
28
R. Doc. 24 at 5; R. Doc. 24-1 at 1.
29
R. Doc. 24 at 5.
14
Plaintiff’s only evidence of age discrimination are his own
assertions that his uncle, Constancio Izaguirre, repeatedly
referred to plaintiff as old by using derogatory terms in
Spanish.30 Plaintiff asserts that Constancio Izaguirre would
threaten to fire him “in the course of these diatribes,” and made
such a threat about a week before he was fired.31 Plaintiff also
notes that his aunt and the co-owner of Ms. Ellie’s Kitchen,
Elida Izaguirre, would tell plaintiff “not to listen” to
Constancio Izaguirre’s remarks.32 Plaintiff does not place these
comments in context, but because they are vaguely ageist, they do
provide an inference of age discrimination. While the inference
of discrimination is tenuous, it is enough to meet the low
demands of establishing a prima facie case. See Rachid v. Jack in
the Box, Inc., 376 F.3d 305, 313 (5th Cir. 2004) (holding that
ageist comments could establish a plaintiff’s prima facie case).
30
R. Doc. 24 at 6; R. Doc. 24-1 at 3.
31
R. Doc. 24-1 at 3-4.
32
R. Doc. 24-1 at 1.
15
2. Legitimate, Non-discriminatory Reason
Defendant has produced seven affidavits in support of its
position that plaintiff was terminated because of his poor
performance, insubordination, verbal abuse toward his supervisors
and others, and suspected theft.33 Plaintiff does not dispute
that defendant has offered legitimate, non-discriminatory reasons
for his termination.34 Plaintiff argues only that defendant’s
reasons are a pretext for discrimination.
Plaintiff’s offers three arguments to establish that
defendant’s purported justifications are pretextual. First, he
argues that the evidence asserting that plaintiff yelled at his
coworkers was not credible because the affidavits are not by the
specific employees that plaintiff supposedly abused. Second,
plaintiff disputes the accuracy of defendant’s account of how
plaintiff was fired, contending that he was given no reasons for
his termination.35 Third, plaintiff denies that he ever stole
supplies from defendant and alleges that the owner’s other
relatives would take food without paying.36
None of these reasons creates a material issue of fact on
the issue of whether defendant’s reasons for terminating
33
R. Doc. 20-1 at 2-5; R. Doc. 20-5; R. Doc. 20-6.
34
R. Doc. 24.
35
R. Doc. 24 at 4.
36
R. Doc. 24 at 5; R. Doc. 24-1 at 5.
16
plaintiff were pretextual. Plaintiff does not argue that
defendant has changed its justifications or that the defendant
offered inconsistent justifications for his firing. See Jones v.
Bernanke, 493 F. Supp. 2d 18, 33 (D.D.C. 2007) (“Plaintiff can
survive summary judgment if he shows that the employer’s
proffered, nondiscriminatory reason contradicts other accounts of
its decision or that it is inconsistent with other
contemporaneous accounts of the employer’s decision.”). Although
plaintiff disputes that he was given any reasons at the time of
his termination, he produces no evidence that the defendant’s
proffered reasons are false. Indeed, plaintiff admitted to
yelling at his aunt, bringing her to tears, and that he had
disagreements with her, his uncle and other employees. See Def.’s
Dep. 42, 45, 51-55. Further, although he alleges that the owners
permitted others to take food and eat without paying, plaintiff
admits that his bosses remonstrated with him more than once about
the state of inventory, including shortages and discrepancies.
See Def.’s Dep. 52-53. Seven witnesses also attested that
plaintiff was quick to fly off the handle and that his
insubordination brought his aunt to tears on many occasions.37
Further, plaintiff’s assertions that he did not yell at the
other employees or steal from defendant do not undermine
defendant’s proffered reasons for his firing because a “bald,
37
R. Doc. 20-5; R. Doc. 20-6.
17
self-serving denial of wrongdoing does not suffice to rebut
Defendant’s belief.” Armstrong v. Boehringer Ingelheim
Pharm.,Inc., No. 3:08-CV-1458-0, 2010 WL 2540751, at *7 (N.D.
Tex. June 21, 2010); Jackson, 602 F.2d at 379 (“[a plaintiff’s]
assertion of innocence alone does not create a factual issue as
to the falsity of [a defendant’s] proffered reason for
terminating him”). Finally, Constancio Izaguirre’s derogatory
comments cannot establish pretext, because, as discussed above,
“[a] comment is not evidence of discrimination if it is the sole
proof of pretext.” Cervantez v. KMGP Servs. Co., 349 Fed. App’x
4, 10 (5th Cir. 2009).
Accordingly, summary judgment is warranted because plaintiff
has not produced any evidence that defendant’s purported
justifications were pretextual.
IV.
CONCLUSION
For the foregoing reasons, defendant’s motion is GRANTED.
New Orleans, Louisiana, this 31st day of October, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
18
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