Cochran v. Tri-State Truck Center, Inc.
Filing
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ORDER granting 37 Motion for Summary Judgment for the reasons stated in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on February 19, 2014. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
AUDREY COCHRAN
vs.
PLAINTIFF
CIVIL ACTION NO. 3:12-cv-857 DPJ-FKB
TRI-STATE TRUCK CENTER, INC.
DEFENDANT
ORDER
This employment-discrimination case is before the Court on Defendant’s Motion for
Summary Judgment [37]. Plaintiff responded in opposition. The Court finds that Defendant’s
motion should be granted because Plaintiff failed to establish a prima facie case of retaliatory
discrimination.
I.
Facts and Procedural History
Plaintiff, Audrey Cochran, began working for Defendant, Tri-State Trucking, in
September 2007 as a scanning clerk. Pl.’s Compl. [1] at ¶ 6. Tri-State then promoted Cochran to
the position of accounts-payable clerk in March of 2010. Def.’s Mem. Supp. Summ. J. [38] at 2.
But on March 1, 2012, Tri-State terminated Cochran, claiming that her work contained numerous
errors. Id. at 2–3. Tri-State introduced evidence of the alleged errors, insisting such examples
are “only a sampling” of what occurred during Cochran’s employment as the accounts-payable
clerk. Id. at 6 (citing Ex. K).
Cochran counters that her termination occurred because she opposed racial discrimination
against a co-worker, Angela Patrick. Pl.’s Mem. Opp. Summ. J. [40] at 3. Ms. Patrick filed two
EEOC claims against Tri-State, and Cochran maintains that Tri-State subsequently instructed her
not to associate with Ms. Patrick while at work. Id. Cochran states that she and Ms. Patrick
were “good friends,” and that she “voiced her opinion” that Ms. Patrick should have been given
the opportunity to work in a more senior position at the company. Id. She further believes that
Tri-State failed to promote Ms. Patrick due to her race. Id.
Aggrieved by her termination, Cochran filed a Charge of Discrimination with the EEOC
alleging retaliation. The EEOC issued a right-to-sue letter, and Cochran initiated this lawsuit on
December 17, 2012. Her complaint alleges (1) unlawful retaliation in violation of Title VII and
42 U.S.C. § 1981; (2) negligent and/or intentional infliction of emotional distress; and (3)
wrongful termination. Defendant seeks summary judgment on all claims. The Court has
personal and subject-matter jurisdiction.
II.
Standard of Review
Summary judgment is warranted under Rule 56(c) of the Federal Rules of Civil Procedure
when evidence reveals no genuine dispute regarding any material fact and that the moving party
is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a sufficient
showing 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party moving for summary judgment bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323. The non-moving party
must then go beyond the pleadings and designate “specific facts showing that there is a genuine
issue for trial.” Id. at 324. Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for
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trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); SEC v. Recile, 10 F.3d 1093,
1097 (5th Cir. 1993).
When reviewing the evidence, factual controversies are to be resolved in favor of the
nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.”
Little, 37 F.3d at 1075. If such contradictory facts exist, the court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S.
133, 150 (2000).
III.
Analysis
A.
Conceded and Abandoned Claims
Cochran concedes that her claim for intentional and/or negligent infliction of emotional
distress is not supported by applicable law. Pl.’s Mem. Opp. Summ. J. [40] at 20. She also
admits that summary judgment should be granted as to her wrongful termination claim. Id.
Those claims are therefore dismissed.
B.
Retaliation Claim
1.
Legal Standard
Title VII retaliation claims based on circumstantial evidence proceed under the familiar
McDonnell Douglas burden-shifting framework.1 McCoy v. City of Shreveport, 492 F.3d 551,
556 (5th Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The
plaintiff must first establish a prima facie case by showing: “(1) [she] participated in an activity
1
Claims under 42 U.S.C. § 1981 follow the same method of analysis. Jones v. Robinson
Property Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005).
3
protected by Title VII; (2) [the] employer took an adverse employment action against [her]; and
(3) a causal connection exists between the protected activity and the materially adverse action.”
Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008) (citing McCoy, 492 F.3d
at 557). Upon establishing a prima facie case, the burden shifts to the employer to produce a
legitimate, nonretaliatory reason for the employment action. Id. “If the employer meets this
burden of production, the plaintiff then bears the burden of proving that the employer’s reason is
a pretext for the actual retaliatory reason.” Id. (citing McCoy, 492 F.3d at 557)); see also Univ.
of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, ––––, 133 S. Ct. 2517, 2533 (2013) (“Title VII
retaliation claims must be proved according to traditional principles of but-for causation . . .
[t]his requires proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”).
2.
Protected Activity
A threshold issue exists as to whether Cochran engaged in a protected activity. Cochran
offers three candidates: (1) her stated opinion that Ms. Patrick should be promoted to a new
position; (2) her refusal to follow Ms. Barrett’s instructions to stay away from Ms. Patrick; and
(3) her participation in Ms. Patrick’s EEOC claims. Pl.’s Mem. Opp. Summ. J. [40] at 3, 11.
Tri-State responds that none qualify as protected activity. Def.’s Mem. Supp. Summ. J. [38] at
9–11. It further argues that allegation (3) fails as to temporal proximity. Id.
Protected activity implicates conduct “made an unlawful employment practice by” Title
VII. 42 U.S.C. § 2000e-3(a). “Magic words are not required, but protected opposition must at
least alert an employer to the employee’s reasonable belief that unlawful discrimination is at
issue.” Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010) (citations
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omitted). “Title VII protects opposition only when the plaintiff opposed conduct Title VII
prohibits. As often stated, Title VII ‘does not set forth a general civility code for the American
workplace.’” Wynn v. Miss. Dep’t of Human Servs., No. 3:09-cv-717-DPJ-FKB, 2011 WL
3423142, at *6 (S.D. Miss. Aug. 4, 2011) (citing Burlington N. Santa Fe Ry. v. White, 548 U.S.
53, 68 (2006)) (some quotations omitted). It follows that the Fifth Circuit has “consistently held
that a vague complaint, without any reference to an unlawful employment practice under Title
VII, does not constitute protected activity.” Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485,
493 (5th Cir. 2011) (collecting cases and holding that complaints of “hostile work environment”
did not constitute protected activity); see also Brown, 406 F. App’x at 840 (holding that
undefined claim of “discrimination” was not protected activity).
The Court will address the three alleged protected acts in light of these standards.
Cochran first claims that she engaged in protected activity by supporting Ms. Patrick’s bid for a
promotion. As stated in her legal memorandum, Cochran “made it clear . . . that Ms. Patrick was
clearly being subjected to illegal race discrimination.” Pl.’s Mem. [40] at 10. But Cochran fails
to cite any record evidence supporting that contention in violation of Federal Rule of Civil
Procedure 56(c)(1).2 The argument also conflicts with Cochran’s own deposition testimony in
which she concedes that she never mentioned race. See Cochran Dep. 154–55 (testifying that she
told supervisor that “what they’re doing to Angela is wrong” without “bring[ing] up race”); id. at
162 (testifying that she told general manager, “They’re not giving her a chance,” without
mentioning race).
2
In other portions of her memorandum, Cochran suggests that she specifically complained
about race, but the deposition testimony she cites does not support the argument. See Cochran
Dep. at 147–52, 196–97.
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These statements are as vague as those rejected in other Fifth Circuit cases. For example,
in Carter v. Target Corp., an African American employee complained that “white employee’s
work tasks were being diverted to her,” that she was over worked and had received negative
performance reviews. — F. App’x —, 2013 WL 5509164, at *4 (5th Cir. Oct. 4, 2013) (per
curiam). The Fifth Circuit affirmed summary judgment finding no protected activity. Id. (citing
Davis, 448 F. App’x at 493); see also Riley v. Napolitano, 537 F. App’x 391 (5th Cir. 2013) (per
curiam) (affirming summary judgment because statement, “I feel as if I am being mistreated,”
was too vague to constitute protected activity). Cochran acknowledges this line of cases, but
attempts to flip the inquiry by arguing that there was nothing vague about the racial comments
made by one of the managers. But the inquiry focuses on Cochran’s statements and whether she
conveyed opposition to conduct Title VII makes unlawful. Id. No such evidence is before the
Court.
As for Cochran’s claim that she refused to disassociate from Ms. Patrick, opposition may
take the form of refusal to obey an order because of a reasonable belief that it is discriminatory. 2
EEOC Compliance Manual § 8-IIB2 (cited in Dorantes v. Tex. Tech Univ. Health Scis. Ctr., No.
EP-02-CA-394-DB, 2003 WL 21474255, at *4 (W. D. Tex. June 23, 2003)). But requiring
Plaintiff to stay within her work area or refrain from associating with Ms. Patrick does not
amount to, under these facts, employment discrimination against Ms. Patrick. See Dorantes,
2003 WL 21474255, at *4 (holding that “[t]he key to ‘opposition clause’ protection . . . is that the
employee must oppose some unlawful activity”). Cochran’s oral statements reflected in
allegations (1) and (2) are too “vague” to constitute protected activity. Davis, 448 F. App’x at
493.
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Alternatively, Cochran argues that she participated in Ms. Patrick’s EEOC claims by
alerting Ms. Patrick to derogatory comments in the workplace. Pl.’s Cmpl. [1] at ¶ 13. An
employee engages in protected activity when she has “(1) ‘opposed any practice made an
unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing’ under Title VII.” Douglas
v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998) (quoting 42
U.S.C. § 2000e-3(a)). Cochran admits, however, that she did not speak with the EEOC about
Ms. Patrick’s claim, and she produces no other probative evidence to support this contention.
See Pl.’s Mem. Opp. Summ. J. [40] Ex. 5, Cochran Dep. 203–04. She likewise fails to show that
the decisionmaker was aware of this alleged protected activity.3
Accordingly, Cochran has failed to sustain her burden for summary judgment as to the
first prong of a prima facie case of discrimination. All claims are therefore dismissed.4
IV.
Conclusion
The Court has considered all the arguments. Those not specifically addressed would not
change the result. For the foregoing reasons, Defendant’s Motion for Summary Judgment
3
To the extent that Cochran relies on temporal proximity to establish the necessary causal
connection at the prima facie stage, such allegations require a “very close” connection between
events to survive summary judgment. Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808
(5th Cir. 2007) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Nearly nine
months passed between Ms. Patrick’s second EEOC claim and Cochran’s termination. See
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471–72 (5th Cir. 2002) (holding that fivemonth time lapse precluded inference of causal link from temporal proximity).
4
As the Court dismisses Count I and Cochran concedes Counts II and III, no substantive
issues remain. Count IV, containing Plaintiff’s prayer for punitive damages, is therefore moot.
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[37] is granted. A separate judgment will be entered in accordance with Federal Rule of Civil
Procedure 58.
SO ORDERED AND ADJUDGED this the 19th day of February, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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