Moore et al v. True Temper Sports, Inc.
Filing
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MEMORANDUM OPINION 46 Motion for Summary Judgment. Signed by U.S. Magistrate Judge David A. Sanders on 8/1/12. (def) Modified on 8/1/2012 (jla).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
OSCAR D. MOORE, SR., et al.
PLAINTIFFS
V.
CIVIL ACTION NO.1:10CV178-DAS
TRUE TEMPER SPORTS, INC.
DEFENDANT
MEMORANDUM OPINION
Presently before the court is the motion for summary judgment filed by the defendant
True Temper Sports, Inc. After reviewing the motion, response, and authorities, the court finds
as follows:
FACTUAL BACKGROUND
Because a major customer was considering moving its business to another vendor, True
Temper planned a series of site visits with this customer at its manufacturing facility. One part
of its effort to make a good impression on the customer’s representatives was to require its
workforce to wear matching T-shirts during the visits. A T-shirt, emblazoned with company and
union logos, was provided to each employee.
The four black plaintiffs refused to wear the T-shirts for the first visit in March 2008.
They were assigned to work away from the main facility that day, so they would not be seen by
the visitors. The plaintiffs continued their defiance during the July 2008 visit and were
suspended for five days. Fearing they would be fired if they did not comply, the plaintiffs wore
the T-shirts for a visit in September 2008. They allege that white employees were similarly
defiant but not similarly punished.
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The plaintiffs, after exhausting their administrative remedies, filed this action alleging
race discrimination in violation of Title VII of the Civil Rights Act of 1964 and Title 42 U.S.C.
§ 1981. They also filed a grievance with the National Labor Relations Board. The defendant
settled that grievance, concurrently with the filing of this action, paying the plaintiffs for the time
they were suspended and expunging the discipline from their personnel records.
The defendant has moved for summary judgment, arguing that there are no genuine
disputes of material fact and that it is entitled to judgment as a matter of law.
DISCUSSION
SUMMARY JUDGMENT
Summary judgment must be granted "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(a). Rule 56 requires that materials supporting or opposing the
motion be admissible at trial.
Summary judgment is proper "where a party fails to establish the existence of an element
essential to his case and on which he bears the burden of proof. A complete failure of proof on
an essential element renders all other facts immaterial because there is no longer a genuine issue
of material fact." Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir. 1988)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the party with the burden of
proof cannot produce any summary judgment evidence on an essential element of his claim,
summary judgment is required. Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990).
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The moving party must make an initial showing that there is no dispute of material fact or
that there is a failure of proof of an element of the claim. If this showing is made, the
nonmoving party must go beyond pleadings and submit specific evidence showing that there are
one or more genuine issues of fact to be resolved by trial. In the absence of proof, the court
does not "assume that the nonmoving party could or would prove the necessary facts." Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(emphasis omitted). While all facts are
considered in favor of the nonmoving party, including all reasonable inferences therefrom, Banc
One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995), the nonmovant has
the burden in responding to summary judgment to designate sufficient facts to show a material
dispute to be resolved by trial.
This burden is not satisfied with “some metaphysical doubt as to the material
facts,” Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356, by “conclusory
allegations,” Lujan, 497 U.S. at 871-73, 110 S. Ct. at 3180, by “unsubstantiated
assertions,” Hopper v. Frank, 16 F.3d 92 (5th Cir.1994), or by only a “scintilla’ of
evidence,” Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). Little, 37
F.3d at 1075.1
A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248(1986). Summary judgment is appropriate if “critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment in favor of the nonmovant."
Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993). If the nonmoving party fails to meet
this burden, the motion for summary judgment must be granted.
1
Quoting Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) and
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
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DISCRIMINATION
The plaintiffs sue pursuant to both Title VII and 42 U.S.C. § 1981. Under Title VII, it is
“an unlawful employment practice for an employer ... to discharge any individual, or otherwise
“to discriminate 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). Title 42 U.S.C. § 1981 guarantees that “[a]ll persons ...
shall have the same right to make and enforce contracts, ... and to the full and equal benefit of all
laws and proceedings ... as is enjoyed by white citizens.” Id. This statute protects against
private, as well as governmental discrimination. 42 U.S.C. § 1981 ©. When “used as parallel
causes of action, Title VII and §1981 require the same proof to establish liability.” Shackelford
v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n.2 (5th Cir. 1999).
A. THE PRIMA FACIE CASE
Because the plaintiffs’ attempt to prove discrimination through circumstantial evidence,
the court analyzes their claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas standard, the plaintiff must first establish their prima facie case of
discrimination by showing that they are: (1) members of a protected group; (2) qualified for the
positions they hold; (3) that they suffered an adverse employment action; and (4) were either
replaced by someone outside the protected group or otherwise treated less favorably than
employees not in the protected group. Okoye v University of Texas Houston Health Sci Ctr., 245
F.3d 507, 513 (5th Cir. 2001). Proof of disparate treatment can establish the fourth element of the
prima facie case. See Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).
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The defendant concedes that the first two prongs of the plaintiff’s prima facie case are
established but argues the plaintiff failed to prove either of the final two elements. The facts
before the court are undisputed, though the parties interpret some of the facts differently. On the
first visit – on March 4, 2008 – ten True Temper employees refused to wear the T-shirts. The
defendant sent one white employee, Gerald Fink, home. This, according to the defendant, was a
result of some confusion among management regarding how to respond to the situation. The
defendant assigned work outside the factory to four black plaintiffs and the five remaining white
coworkers and paid all of them for the day. According to the defendant, none of these
employees were written up or disciplined. The plaintiffs claim the defendant gave them a
warning and/or a write-up for the March incident.
In advance of the second planned visit on July 29, 2008, each employee, excepting Fink,
received a letter from management warning them that they must wear the T-shirts or be subject
to discipline for insubordination.2 Management met with the employees to urge them to comply
and to make sure that they understood the consequences of failing to comply with the company’s
directive. The four plaintiffs refused to comply with this order and received a five-day
suspension. There is no admissible proof before the court regarding whether there were any
white employees who also defied the T-shirt edict in July, nor proof of what consequences, if
any, followed.
During the September 2008 visit, the plaintiffs, fearing for their jobs, capitulated and
wore the T-shirts. Their complaint and discovery responses claim that other white employees
2
Fink was inadvertently omitted because his name was not on the list of employees who
had worked off-site during the March visit.
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did not wear their shirts during this visit but were not punished. Again, the plaintiffs have not
submitted any admissible proof about specific white employees’ actions or any consequences.
The defendant first argues that the plaintiffs have not established an ‘adverse
employment action,’ by characterizing the plaintiffs’ suspensions as being ‘with pay.’ It ignores
that it took the plaintiffs almost two years and an NLRB grievance to get their paychecks. The
plaintiffs are no more reasonable. They filed the complaint in this court, demanding their back
pay and the expungement of the discipline from their personnel records, one day before those
demands were mooted by the NLRB settlement. Yet they continue to assert and itemize the
‘lost’ wages of each plaintiff, ignoring that they have obtained this requested relief long ago. A
different forum and different theory of liability will not support a second recovery for the same
wages. The court can only conclude that the plaintiffs filed this suit in an unmerited attempt to
obtain punitive damages and attorneys fees because the plaintiffs presumably knew about the
NLRB settlement before they filed this lawsuit.
The parties have not cited a comparable case and the court has not located one in its
research. For the purposes of this summary judgment, the court treats the suspension as ‘without
pay,’ though the claim for wages is now moot. Under Fifth Circuit case law, a suspension
without pay for as little as two days constitutes an adverse employment action. Lemaire v.
Louisiana Dept. of Transp. and Development, 480 F.3d 383. 384 (5th Cir. 2007). Therefore, the
plaintiffs have established this element of their prima facie case.
The defendant also argues that the plaintiffs have failed to establish any disparate
treatment between the plaintiffs and similarly situated white employees. The plaintiffs’ sworn
complaint and discovery make numerous allegations that the plaintiffs received harsher
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treatment, but they do not provide specific facts to prove their allegations. Therefore, none of
these documents creates triable issues of fact regarding disparate treatment. Lujan, 497 U.S. at
871-73. The plaintiffs submitted no affidavits with their response to the motion but included
three unsworn statements from white employees. On the defendant’s motion, these were struck.
An unsworn statement is not competent summary judgment evidence because it does not comply
with the requirements of Rule 56 (c). Nissho-iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305-07
(5th Cir. 1988); Okoye v. University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th
Cir. 2001). After the court granted the motion to strike, the plaintiffs took no steps to submit
these statements in affidavit form. 3 Because the plaintiffs have failed to produce evidence to
support this element of their prima facie case, the defendant is entitled to summary judgment.
B. LEGITIMATE, NONDISCRIMINATORY REASON AND PRETEXT
Alternatively and additionally, the defendant argues the plaintiffs’ conduct was an act of
insubordination and that the employer therefore had a legitimate, nondiscriminatory reason for
the imposition of the suspensions. According to the defendant, the plaintiffs have failed to
produce evidence that the proffered reason is a pretext for discrimination. Once the plaintiffs
have established a prima facie case, the defendant then has the burden of producing a legitimate,
nondiscriminatory explanation for the adverse employment action. Reeves v. Sanderson
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The court further notes that the statements, had they been submitted in proper affidavit form, would not
be sufficient to present issues of triable facts. Gerald Finch’s statement confirms that he did not wear the T-shirt
during the March visit and was sent home but paid for the day. The defendant explains this different treatment was
the result of management confusion at the beginning of the day. Given that five other white men joined the black
plaintiffs to work offsite that day, no reasonable jury could find Finch’s treatment to be proof of racial animus. The
other two individuals were not similarly situated. One was working the third shift which would be after the visit
concluded and another opted to take a vacation day in lieu of complying.
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Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The defendant’s burden at this stage is merely
one of production, not persuasion. Id.
If the defendant can articulate a reason that, if believed, would support a finding that the
action was nondiscriminatory, then the inference of discrimination created by the plaintiff’s
prima facie case disappears, and the fact finder must decide the ultimate question of whether the
plaintiff has proven intentional discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993). The plaintiff must present evidence that the employer’s proffered reason is a
pretext for discrimination. Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). A plaintiff
must “substantiate his claim of a pretext through evidence demonstrating that discrimination lay
at the heart of the employer’s decision.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.
2002).
Pretext may be established “either through evidence of disparate treatment or by showing
that the employer’s proffered explanation is false or “unworthy of credence.” Reeves, 530 U.S.
at 143). “To raise an inference of discrimination, the plaintiff may compare his treatment to that
of nearly identical, similarly situated individuals.” Bryant, 413 F.3d at 478. To establish
disparate treatment, the plaintiff must show that the employer gave preferential treatment to
another employee under ‘nearly identical’ circumstances.” Id. Alternatively, “[a]n explanation
is false or unworthy of credence if it is not the real reason for the adverse employment action.”
Laxton, 333 F.3d at 578.
The plaintiff need not show that discrimination was the sole motive for an adverse
employment action. It is sufficient if there is proof that discrimination was one of the motivating
factors among others for an adverse employment action. See generally Rachid v. Jack-in-the-
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Box, Inc., 376 F.3d 305 (5th Cir. 2004). A plaintiff asserting a Title VII discrimination claim can
utilize the mixed-motive analysis whether presenting direct or circumstantial evidence of
discrimination. Desert Palace Inc. v. Costa, 539 U.S. 90, 101 (2003).
There is no factual dispute between the parties about the insubordination. The defendant
explains it gave the order to wear the T-shirts in order to help the company put its best foot
forward during the customer visits. The plaintiffs’ response does not suggest that the stated
reason for the sanctions is pretext. Rather, they suggest a disagreement about the propriety of
the company’s decision. The plaintiffs contend that the company was acting wrongfully and
trying to “create a false impression” and “mislead” its customer. While the plaintiffs seem to be
arguing that they were correct to defy their employer, they do not point to any facts from which
racial animus on the part of the employer may be inferred. The plaintiffs, as employees, do not
have to endorse the orders of their supervisors, in order to be obliged to comply with those
orders or face sanctions. Nothing in the record indicates that race played any role in the original
order, the plaintiffs’ rebellion, nor the punishment imposed upon them. Even if a jury agreed
with the plaintiffs that the decisions made by True Temper were incorrect, ill advised, or
unseemly, there is no liability for failing to make proper decisions, so long as the decisions are
nondiscriminatory. See Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).
The only evidence supporting the plaintiffs’ allegations is that one white employee,
Gerald Fink, got paid for a day of work he did not perform when he was, like the plaintiffs, also
insubordinate. The defendant insists that this was error, not discrimination. With five other
white employees having worked that day, along with the black plaintiffs, this evidence does not
rebut the proffered nondiscriminatory reason given for the plaintiffs’ suspensions. No
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reasonable jury could find that this discrepancy proves these plaintiffs have been the victims of
racial discrimination. Armstrong, 997 F.2d 62 (5th Cir. 1993).
For the reasons stated above, the defendant’s motion for summary judgment is granted.
The complaint will be dismissed with prejudice and costs taxed to the plaintiffs. A separate
judgment will be entered.
This the 1st day of August, 2012.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE
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