Truner v. Southeastern Freight Lines, Inc.
Filing
33
Memorandum Opinion and Order granting 27 MOTION for Summary Judgment, dismissing 1 Complaint with prejudice. A final judgment will be entered as set out herein. Signed by District Judge Tom S. Lee on 7/6/15 (*copy mailed to plaintiff at 109 Fawnwood Dr., Brandon, MS 39042) (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LEE D. TURNER
PLAINTIFF
VS.
CIVIL ACTION NO. 3:14CV347TSL-JCG
SOUTHEASTERN FREIGHT LINES, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Southeastern Freight Lines (SEFL) for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff, Lee
D. Turner, proceeding pro se, has responded to the motion and the
court, having considered the memoranda of authorities, together
with attachments, submitted by the parties, concludes the motion
is well taken and should be granted.
Plaintiff, a former employee of SEFL, brought the present
action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq., alleging claims of race discrimination, retaliation and
hostile work environment based on race and/or retaliation.
In
general, plaintiff states that in 2003, he filed a charge of race
discrimination based on an alleged altercation in which a
supervisor first assaulted and then fired him.
He alleges that
because of his race (African-American) and because he filed that
2003 EEOC charge, he has been denied breaks, given reduced hours,
issued unfounded and/or unwarranted disciplinary actions, and
further, has been subjected to racially derogatory comments.
Defendant denies plaintiff’s allegations and contends that based
on the evidence of record, each of his claims is due to be
dismissed.
Background
SEFL is a transportation company that operates a fleet of
trucks used to transport goods to various locations in the
southern United States.
Plaintiff was employed by SEFL as a truck
driver for twelve years, commencing in December 2001.
When he was
first hired, his job involved picking up and delivering goods for
customers.
In 2005, he moved to a “linehaul” position, in which
he transported loads between SEFL service centers.
While
plaintiff was initially a “wild driver,” with no dedicated run, he
eventually (no later than 2011) successfully bid on a dedicated
run between Jackson and Baton Rouge.
Each night, plaintiff would
make the round-trip drive between SEFL’s Jackson Service Center
and the Baton Rouge Service Center.
While at the Baton Rouge
Service Center, he would perform various duties at the dock,
including loading and unloading freight.
Based on his deposition testimony and his declaration
submitted in support of his response to SEFL’s motion, plaintiff
complains of a number of incidents which he contends occurred
because of his race and/or because of his 2003 complaint of race
discrimination, as follows:
2
•
In September 2004, despite being in the lead in a
company-wide contest for which the grand prize was an
all expense-paid trip, another employee with fewer leads
was declared the winner;
•
In 2004, he was written up for clocking in six minutes
early while two Caucasian coworkers’ time cards were
adjusted by supervisors to prevent a violation;
•
In 2009, he was removed from a temporary assignment two
weeks early;
•
In January 2013, he was issued a First Level Corrective
Action relating to a “fifth wheel” accident in which his
trailer became separated (as SEFL attributed the
accident to operator error), and he was issued a Final
Level Corrective Action for failure to report the
incident and for misleading or deceptive conduct.
•
In February 2013, he was “not allowed to work on the
dock in Baton Rouge,” or rather was given reduced hours,
whereas two Caucasian coworkers, Ed Johnson and W.
Porter, were allowed to work.
•
Beginning around February 2013, he was not allowed to
take breaks in Baton Rouge while other workers were
allowed to “break at leisure.”
•
In April 2013, he was issued a First Level Corrective
Action for carelessness and failure to properly perform
policy and procedure relating to an incident in which
the forklift he was operating pierced a drum containing
hazardous material.
•
On July 9, 2013, Andrew Albertson, the dock supervisor
in Baton Rouge, referred to him in a racially derogatory
manner by twice calling him “boy.”
•
In August 13, 2013, he was issued a First Level
Corrective Action after backing his trailer into a pole.
•
Following an October 23, 2013 verbal altercation with
Andrew Albertson, he was issued a Final Level Corrective
Action for uncooperative attitude and failure to follow
policy/procedure.1
1
Plaintiff was not terminated by defendant but rather
continued to work until he sustained an on-the-job injury in
3
Race Discrimination
Title VII provides that “[i]t shall be an unlawful employment
practice for an employer–(1) to fail or refuse to hire or 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 VII discrimination can be established
through either direct or circumstantial evidence.”
Inc., 333 F.3d 572, 578 (5th Cir. 2003).
Laxton v. Gap
“‘Direct evidence is
evidence that, if believed, proves the fact of discriminatory
animus without inference or presumption.’”
Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002), cert. denied, 539
U.S. 926, 123 S. Ct. 2572, 156 L. Ed. 2d 602 (2003)).
In a case
where the plaintiff has not presented direct summary judgment
evidence of discrimination and instead relies on circumstantial
evidence, the court applies the burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973).
Here, plaintiff asserts that he has presented “direct
evidence of race-based animus” and points in particular to
evidence that he claims shows that similarly situated Caucasian
employees were treated more favorably than he was treated.
This
December 2013 which rendered him unable to continue to work for
defendant.
4
is quintessential circumstantial evidence.
Plaintiff has also
presented evidence that a supervisor, Andrew Albertson, referred
to him as “boy” on one occasion.
However, for an alleged
discriminatory remark to constitute direct evidence of racial
discrimination, the statement must be “(1) related to the
protected class of persons of which the plaintiff is a member,
(2) proximate in time to the employment decision, (3) made by an
individual with authority over the employment decision at issue,
and (4) related to the employment decision at issue.”
Reilly v.
TXU Corp., 271 Fed. App’x 375, 379 (5th Cir. 2008) (citing Auguster
v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001)).
Even assuming the first requirement is met, the other three
plainly are not.
Thus, McDonnell Douglas applies.
Under the McDonnell Douglas framework, an employee claiming
race discrimination must first establish a prima facie case of
race discrimination, by demonstrating that (1) he is a member of a
protected class, (2) he was qualified for the position at issue,
(3) he was the subject of an adverse employment action, and (4) he
was replaced by someone outside the protected class, or was
treated less favorably because of his membership in that protected
class than were other similarly situated employees who were not
members of the protected class, under nearly identical
circumstances.
See Lee v. Kansas City Southern Ry. Co., 574 F.3d
253, 259 (5th Cir. 2009).
Once an employee has made out a prima
facie case, an inference of intentional discrimination is raised
5
and the burden of production shifts to the employer, which must
offer an alternative non-discriminatory explanation for the
adverse employment action.
Id.
If the employer comes forward
with legitimate nondiscriminatory reasons for the adverse
employment action, the plaintiff must then prove “(1) that the
reasons proffered were false and were thus a pretext for
discrimination or (2) that even if the reasons are true, [race]
was a motivating factor.”
See Bugos v. Ricoh Corp., No. 07-20757,
2008 WL 3876548, at *3 (5th Cir. Aug. 21, 2008) (gender
discrimination case).
The plaintiff “can meet this burden ‘by
producing circumstantial evidence sufficient to create a fact
issue as to whether the employer's non-discriminatory reasons are
merely pretext for discrimination.’”
Id. (quoting Machinchick v.
PB Power, Inc., 398 F.3d 345, 356 (5th Cir. 2005)).
SEFL contends in its motion that plaintiff cannot establish a
prima facie case of race discrimination because he cannot show
either that he suffered an adverse employment action or that any
similarly situated employee outside the protected class was
treated more favorably.
With respect to the former requirement,
in discrimination cases, the Fifth Circuit holds to a “strict
interpretation” of the adverse employment element of a prima facie
case of discrimination.
282 (5th Cir. 2004).
Pegram v. Honeywell, Inc., 361 F.3d 272,
An “adverse employment action” for Title VII
discrimination claims “‘include[s] only ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
6
or compensating.’”
McCoy v. City of Shreveport, 492 F.3d 551, 559
(5th Cir. 2007) (quoting Green v. Administrators of Tulane Educ.
Fund, 284 F.3d 642, 657 (5th Cir. 2002)).
To be actionable, an
adverse employment decision must be a “tangible employment action
that constitutes a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.”
Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 764, 118 S. Ct. 2257, 141 L. Ed. 2d 633
(1998).
Thus, conversely, “an employment action that ‘does not
affect job duties, compensation, or benefits' is not an adverse
employment action.”
Pegram, 361 F.3d at 282 (quoting Banks v. E.
Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.), cert.
denied, 540 U.S. 817, 124 S. Ct. 82, 157 L. Ed. 2d 34 (2003)).
If
an employer's action fails to have more than a “mere tangential
effect on a possible future ultimate employment decision,” it does
not constitute an adverse employment action.
See Mota v. Univ. of
Texas Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir.
2001) (“An employer's action does not rise to the level of an
‘adverse employment action’ when it fails to have more than a
‘mere tangential effect on a possible future ultimate employment
decision.’”) (quoting Walker v. Thompson, 214 F.3d 615, 629 (5th
Cir. 2000)).
In the case at bar, most of plaintiff’s complaints relate to
matters that clearly do not qualify as adverse employment actions.
7
His claim that he was denied breaks or unfairly deprived of the
prize in a contest obviously do not qualify.
Neither do his
complaints pertaining to receiving “Corrective Actions.”
It
appears each Corrective Action issued to him was in the nature of
a disciplinary warning that carried no tangible adverse
consequences.
See Carthon v. Johnson Controls, Inc., 100 Fed.
App’x 993, 997 (5th Cir. 2004) (employee's “receipt of a single
disciplinary warning—without an attendant change in the terms or
conditions of his employment—does not qualify as an ultimate
employment decision.”); Mattern v. Eastman Kodak Co., 104 F.3d
702, 708 (5th Cir. 1997)(“having documented reprimands in
[employee’s] file may have increased the chance that she would
eventually suffer an adverse employment action but ... they [were
not] ultimate employment decisions nor did they rise above having
mere tangential effect on a possible future ultimate employment
decision”), reversed on other grounds, Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L.
Ed. 2d 345 (2006); Davis v. Miss. Transp. Comm’n, 618 F. Supp. 2d
559, 564 (S.D. Miss. 2009) (“[A]n employment action that limits an
employee's future opportunities for promotion, but does not affect
the employee's job duties, compensation, or benefits, does not
qualify as an adverse employment action.”); Jones v. FJC Security
Servs., Inc., 40 F. Supp. 3d 840, 849-50 (S.D. Tex. 2014) (“By
themselves, documented reprimands, though potentially affecting
future employment decisions, do not qualify as adverse employment
8
decisions.”) (citing Thompson v. Exxon Mobil Corp., 344 F. Supp.
2d 971, 981 (E.D. Tex. 2004)).2
Plaintiff’s claim that he was
removed two weeks early from what was admittedly a temporary
assignment to a dedicated run and returned to his regular position
as a “wild driver” is not an adverse employment action.
Cf.
Anthony v. Donahoe, 460 Fed. App’x 399, 403 (5th Cir. 2012)
(employee’s temporary reassignment to another facility not an
adverse employment action where she received the identical salary
and benefits she received at her prior position and could return
to former position once situation necessitating the transfer was
rectified).
Plaintiff does complain that in February 2013, the hours he
was allowed to work at the Baton Rouge Service Center were
reduced, which he implies resulted in a loss of income.
A
reduction in hours which results in a loss of pay can constitute
an adverse employment action.
See Rizzo v. Children's World
Learning Ctrs., Inc., 173 F.3d 254, 260 (5th Cir. 1999)(jury could
find adverse employment action where plaintiff's duties were
exchanged with another employee, and plaintiff's hours were
reduced, forcing her to work a split shift in which she still did
not work enough hours to qualify for benefits), aff'd en banc, 213
F.3d 209 (5th Cir. 2000); Lopez v. Donahoe, Civil No. 1:11–CV–189,
2
With regard to the “fifth wheel” accident, plaintiff
admits that while he was initially issued Corrective Actions, they
were subsequently rescinded when an investigation determined that
the accident was due to an equipment malfunction.
9
2015 WL 1311377, 11 (S.D. Tex. Mar. 23, 2015) (suspension of
employee's driving privileges which in turn resulted in reduction
in the hours he was allowed to work—and by extension his ability
to earn—constituted adverse employment action); Slaughter v. Word
of Faith Intern. Christian Ctr., Civ. Act. No. 3:11cv364–DPJ–FKB,
2012 WL 5612373, at *4 (S.D. Miss. Nov. 15, 2012) (“reduction in
hours/wages ... could present tangible employment actions”)
(citing Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d
1227, 1231 (11th Cir. 2006) (“A reduction in an employee's hours,
which reduces the employee's take-home pay, qualifies as a
tangible employment action.”)).
SEFL points out that the
reduction in hours was only temporary, lasting only a few weeks;
and in its rebuttal, it likens this to a suspension with only a
few days’ loss of pay, which it submits does not amount to an
adverse employment action.
See Stewart v. Mo. Pac. R.R., 121 Fed.
App’x 558, 562 (5th Cir. 2005) (affirming district court’s decision
that suspension with loss of five days’ pay was “not on par with
hiring, firing, failing to promote, or reassignment with
significantly different responsibilities.”).
The court need not
resolve this issue, however, because even assuming the reduction
in hours was an adverse employment action, plaintiff still cannot
establish a prima facie case of discrimination, as he has no
evidence to show that similarly situated employees were treated
more favorably in this respect.
10
Defendant argued in its initial brief that plaintiff’s hours
were temporarily reduced in February 2013 due to work being slow.
It further noted that plaintiff had acknowledged both that this
was the reason for his reduction in hours and that he knew of no
other employees whose hours were not reduced as a result of the
work being slow at that time.
In response to defendant’s motion,
however, plaintiff presented a declaration in which he asserts
that two Caucasian workers, Ed Johnson and W. Porter, were allowed
to work while he was not.
Defendant has asked that the court
disregard this part of plaintiff’s declaration, as it is plainly
inconsistent with his earlier deposition testimony, in which he
testified that he knew of one other truck driver who worked the
dock in Baton Rouge but had never had a conversation with that
other truck driver about whether his hours working the dock had
been reduced, and in which he stated he did not know whether that
other driver had experienced the same reduction in work.
As defendant notes, the Fifth Circuit has held that “a
nonmovant cannot defeat a summary judgment motion by submitting an
affidavit which contradicts, without explanation, the nonmovant's
previous testimony in an attempt to manufacture a disputed
material fact issue.”
Thurman v. Sears, Roebuck & Co., 952 F.2d
128, 136 n.23 (5th Cir.), cert. denied, 506 U.S. 845, 113 S. Ct.
136, 121 L. Ed. 2d 89 (1992).
Here, however, it is clear that
summary judgment is in order, regardless of whether the court
considers plaintiff’s declaration.
11
Plaintiff states in his
declaration that in February 2013, “I was not being allowed to
work on the dock in Baton Rouge, while Caucasian workers Ed
Johnson and W. Porter were allowed to work.”
In fact, plaintiff
has testified that he did work some hours in February 2013 but
that his hours were reduced; and he has offered no evidence as to
how many hours Johnson or Porter was allowed to work as compared
to him, nor has he suggested how he could possibly have personal
knowledge of this information.
In rebuttal, though, SEFL has
presented evidence that during the month of February 2013, Johnson
and Porter were paid for a total of 1.5 and 1.25 hours,
respectively, whereas plaintiff was paid for 21.62 hours during
this time.
This claim is unfounded.
The court would further observe that even if any of the other
incidents of which plaintiff complains could arguably be found to
constitute an adverse employment action, plaintiff has not
presented any competent evidence to show that he was treated less
favorably than other similarly situated employees outside his
protected class or that would otherwise support an inference of
discrimination.
The court considers each incident, in turn.
To prove discrimination based on disparate treatment,
a plaintiff must demonstrate that the employer gave
preferential treatment to another employee under “nearly
identical circumstances.” Lee v. Kan. City S. Ry. Co.,
574 F.3d 253, 259–60 (5th Cir. 2009). Employees that
have different supervisors, different work
responsibilities, or are subjected to adverse employment
actions for dissimilar violations are not nearly
identical. Id. at 260. A nearly identical circumstance
exists where the employees have the “same job or
responsibilities, shared the same supervisor or had
12
their employment status determined by the same person,
and have essentially comparable violation histories.”
Id. (footnotes omitted).
Rodriquez v. Wal-Mart Stores, Inc., 540 Fed. App’x 322, 326 (5th
Cir. 2013).
The only evidence plaintiff has presented in support of his
claim that he was written up in 2004 for clocking in early while
two Caucasian coworkers’ time cards were adjusted by supervisors
to prevent a violation, are unauthenticated (and barely legible)
time cards.
He has offered no evidence to show that he was
similarly situated to the alleged coworkers.
Plaintiff has offered no comparator (or other) evidence to
suggest that his early removal from an admittedly temporary
assignment in 2009 was racially motivated.
According to
plaintiff’s own explanation, he was allowed to drive that
particular dedicated route temporarily, while the bid process for
the route was ongoing.
When it became apparent that an individual
with more seniority had bid for and was entitled to and would be
awarded the route, that individual was allowed to move into the
route prior to the conclusion of the official bid process.
Morever, while one of plaintiff’s chief complaints appears
to be that he was not allowed to take breaks while working on the
dock in Baton Rouge while others could take breaks whenever they
wanted, he has offered no evidence that similarly situated
employees outside his protected class were permitted breaks under
nearly identical circumstances.
Plaintiff, who is a cigarette
13
smoker, testified that he could smoke in his truck on his way to
and from the Baton Route Service Center, and that he was entitled
by law to a thirty-minute break while in Baton Rouge.
wanted an additional break to smoke.
However, he
In response to his request
that he be allowed smoke breaks, Baton Rouge management agreed
that he could have such breaks, subject to operational needs and
prior permission.
In other words, he was required to check with
his supervisor before taking a break, and could be asked to
continue working if things were busy.
Plaintiff claims that “[o]ther workers were walking off ad
lib; making sandwiches, taking their trash out of their personal
vehicles and placing it into dumpsters.”
However he does not
undertake to identify any of these “other employees.”
Moreover,
he claims that Andrew Albertson slept while at work and an
employee named Robert played on his phone.
SEFL states that
“Robert” is likely Robert English, one of plaintiff’s supervisors.
Obviously, supervisors, such as Albertson and English, are not
proper comparators.
Plaintiff admits that he caused a spill in April 2013 by
piercing a drum of hazardous materials with his forklift, for
which he was issued a Corrective Action; and he admits that this
conduct warranted a Corrective Action.
He claims, though, that
another employee, known only as James, was not written up after
causing a similar spill.
Defendant notes that the James to whom
14
plaintiff is likely referring is James Bass, who was, in fact,
issued a Corrective Action in November 2013 for causing a spill.
Plaintiff similarly claims that another employee was involved
in an incident similar to the incident in which plaintiff backed
into a pole.
He claims that while the other employee was issued a
Corrective Action, as was he, the other employee’s Corrective
Action, unlike his, did not contain the warning that further
occurrences could result in further disciplinary action, up to and
including termination.
He admits, however, that he did not see
the other employee’s Corrective Action form.
SEFL states in its
motion, and has presented supporting evidence, that the employee
to whom plaintiff is likely referring is Leslie Summers, whose
Corrective Action did include the same warning about future
occurrences as plaintiff’s.
Plaintiff last claims that he was issued a Final Level
Corrective Action for an uncooperative attitude and failure to
follow policy/procedure following a verbal altercation with the
dock supervisor, Andrew Albertson, on October 24, 2013.
Plaintiff
has not attempted to show that any other employee who engaged in
similar conduct to that in which he was alleged to have engaged
did not receive a similar disciplinary warning.
Instead, he takes
the position that he did not engage in the conduct for which the
Corrective Action was issued and that the warning was thus
unwarranted.
However, even if plaintiff could show that he did
not engage in the conduct for which the Corrective Action was
15
issued, he cannot show that defendant’s decision to issue the
Corrective Action was pretext for discrimination.
The evidence establishes that on October 23, 2013, Albertson
reported to his superiors that after he found plaintiff taking a
smoke break, for which he had not requested permission, he told
plaintiff to return to work.
he finished his cigarette.
Plaintiff said he would return when
When five minutes passed and plaintiff
had not returned, Albertson went and found plaintiff was just
putting out his cigarette.
When plaintiff began walking toward
the dock at an unnecessarily slow pace, Albertson told plaintiff
to pick up the pace; plaintiff retorted, “Do you want me to run?”
Albertson responded that plaintiff need not run, but he did need
to move faster.
When plaintiff said he was moving as fast as he
could, Albertson responded that plaintiff could clock out and sit
in his truck if that was the best he could do and he, Albertson,
would find someone who could move faster.
Plaintiff told him
something to the effect of “This isn’t the end of this.
You’ve
brought the wrath upon you.”
Plaintiff was interviewed during SEFL’s investigation of this
incident.
During the interview, plaintiff claimed that he put out
his cigarette and began walking back to the dock as soon as
Albertson came to get him the first time; and he claimed that
Albertson’s assertion that plaintiff raised his voice or made any
threat was an “outright lie.”
Beyond that, plaintiff stated that
16
he “want[ed] to decline to answer and consult legal
representation.”
In the related context of an employer’s assertion of an
employee’s job performance as the basis for his termination, the
Fifth Circuit has held that
“[a] dispute in the evidence concerning ... job
performance does not provide a sufficient basis for a
reasonable factfinder to infer that [the] proffered
justification is unworthy of credence.” “The question
is not whether an employer made an erroneous decision;
it is whether the decision was made with a
discriminatory motive.” Thus, we consider whether an
employer's good faith perception of [the employee’s]
performance, accurate or not, was the real reason for
his termination.
Bugos, 2008 WL 3876548, at *4.
See also Jackson v. Cal–Western
Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010) (explaining
that a plaintiff's assertion of innocence relating to the stated
reason for termination does not create a factual issue as to the
falsity of that reason because the issue is not the truth or
falsity of the plaintiff's wrongdoing, but rather is whether the
employer believed the plaintiff was at fault and acted upon that
belief in good faith); Little v. Republic Refining Co., Ltd., 924
F.2d 93, 97 (5th Cir. 1991) (“The existence of competing evidence
about the objective correctness of a fact underlying a defendant's
proffered explanation does not in itself make reasonable an
inference that the defendant was not truly motivated by its
proffered justification.”).
Here, while plaintiff has denied Albertson’s version of their
interaction on October 23, he has offered no basis for concluding
17
that SEFL did not in good faith believe Albertson’s version and
that issuance of a Corrective Action was warranted.
As to this claim for race discrimination, therefore,
defendant’s motion for summary judgment is well taken.
Hostile Work Environment
Plaintiff has also asserted a claim for race discrimination
based on a hostile work environment theory.
This claim appears to
be based on his allegations of disparate treatment – which the
court has found to be unsupported by the evidence – coupled with
his further allegation that on one occasion in July 2013, Andrew
Albertson referred to him as “boy” twice.3
“In order to establish his hostile work environment claim,
[plaintiff] must prove that his environment at [SEFL] was
permeated with discriminatory intimidation, ridicule, and insult
so severe or pervasive as to alter the conditions of employment
and create a hostile or abusive working environment.”
Jackson v.
Honeywell Intern., Inc., 601 Fed. App’x 280, 287 (5th Cir. 2015)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22, 114 S.
Ct. 367, 370–71, 126 L. Ed. 2d 295 (1993)); E.E.O.C. v. Boh Bros.
Cost. Co., L.L.C., 731 F.3d 444, 453 (5th Cir. 2013) (en banc)).
Where a harassment claim arises out of a supervisor's
conduct, there are four elements of a hostile working
environment claim: (1) that the employee belongs to a
3
Plaintiff has claimed that on that date, Albertson’s
forklift was adjacent to his and he was inadvertently about to get
on Albertson’s, when Albertson said, “Boy, don’t get on my
forklift.” He asked Albertson to repeat what he had said, and he
did. Albertson has denied this allegation.
18
protected class; (2) that the employee was subject to
unwelcome [] harassment; (3) that the harassment was
based on [a protected characteristic]; and (4) that the
harassment complained of affected a term, condition, or
privilege of employment.... We use an objective
“reasonable person” standard to evaluate severity and
pervasiveness. Ultimately, whether an environment is
hostile or abusive depends on the totality of the
circumstances.
Boh Bros., 731 F.3d at 453.
Jackson, 601 Fed. App’x at 287.
As a matter of law, Albertson’s
alleged reference to plaintiff as “boy” on a single occasion is
not sufficient to constitute a hostile work environment.
See id.
at 288 (finding that isolated comments that did not affect the
terms and conditions of the plaintiff’s employment were not severe
or pervasive enough to have created a hostile working
environment).
Retaliation
Plaintiff complains that he was retaliated against because he
filed an EEOC charge in 2003.
“Title VII prohibits retaliation
against employees who engage in protected conduct,” such as filing
a charge of harassment or discrimination.
Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002).
To make out
a prima facie case of retaliation, a plaintiff must demonstrate
(1) he engaged in an activity protected by Title VII; (2) the
employer took an adverse employment action against the employee;
and (3) there is a causal connection between the protected
activity and the adverse employment action.
Spencer v. Schmidt
Elec. Co., 576 Fed. App’x 442, 448 (5th Cir. 2014) (citing Brazoria
Cnty. v. EEOC, 391 F.3d 685, 692 (5th Cir. 2004)).
19
“If the
plaintiff presents a prima facie case, the burden then shifts to
the defendant to demonstrate a legitimate nondiscriminatory
purpose for the employment action.”
Valderaz v. Lubbock Cty.
Hosp. Dist., – Fed. App’x –, 2015 WL 3877788, at *3 (5th Cir. June
24, 2015) (internal quotation marks and citation omitted). “If the
defendant does so, the burden returns to the plaintiff to prove
that the employer's stated reason for the adverse action was
merely a pretext for the real, discriminatory purpose.”
Id.
“The
plaintiff must prove pretext by the standard of but-for
causation.”
Roberts v. Lubrizol Corp., 582 F. App'x 455, 460 (5th
Cir. 2014) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S.
––––, 133 S. Ct. 2517, 2533 (2013)).
Defendant submits summary judgment is in order on plaintiff’s
claim of retaliation as he cannot establish a causal nexus between
his EEOC charge and the alleged adverse employment action(s).4
The court agrees.5
4
It appears from SEFL’s memorandum in support of its
motion that SEFL has construed plaintiff’s retaliation claim as
being based solely on an allegation that defendant issued a Final
Level Corrective Action to plaintiff in November 2013 in
retaliation for his 2003 EEOC charge. The complaint does not
appear limited to this single allegation but rather appears to
encompass all of the same incidents that are asserted by plaintiff
in support of his race discrimination claim.
5
Plaintiff states in his declaration that he filed an
EEOC charge on October 28, 2013 because “he was insulted and
ridiculed” and “tired of being harassed and falsely accused.”
However, he does not appear to base his retaliation claim on his
October 2013 charge but rather solely on the earlier 2003 charge.
The court notes that the only action that occurred after the
alleged October 28, 2013 EEOC charge was the issuance of the
20
The Fifth Circuit has held that
“Close timing between an employee's protected activity
and an adverse action against him may provide the
‘causal connection’ required to make out a prima facie
case of retaliation.” Swanson v. Gen. Servs. Admin.,
110 F.3d 1180, 1188 (5th Cir. 1997). “However, we have
made clear that ‘the mere fact that some adverse action
is taken after an employee engages in some protected
activity will not always be enough for a prima facie
case.’” Roberson v. Alltel Info. Servs., 373 F.3d 647,
655 (5th Cir. 2004) (quoting Swanson, 110 F.3d at 1188
n.3). Indeed, “[t]he cases that accept mere temporal
proximity between an employer's knowledge of protected
activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very
close.’” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001).
This court has observed that “a time lapse of up to four
months has been found sufficient to satisfy the causal
connection for summary judgment purposes,” Evans v. City
of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (emphasis
added) (internal quotation marks omitted), whereas a
time lapse of five months does not, without additional
evidence of retaliation, establish causation. See Raggs
v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir.
2002).
November 1, 2013 Corrective Action. Even if plaintiff has
asserted a retaliation claim based on the October 2013 EEOC
charge, defendant would be entitled to summary judgment as
plaintiff has not shown that defendant’s articulated reason for
issuing the Corrective Action was pretext for retaliation. See
Miller v. Metro Ford Auto. Sales, Inc., 519 Fed. App’x 850, 853
(5th Cir. 2013) (stating that even if the employer “mistakenly
assumed that [the plaintiff] intentionally violated company policy
by violating the consignment agreement, that mistake is
insufficient to demonstrate that [the defendant’s] stated
rationale for terminating him was mere pretext for retaliation”
since the issue is whether the employer believed the plaintiff was
at fault and acted upon that belief in good faith). Nor has he
shown that the Corrective Action would not have been issued “but
for” the filing of the EEOC charge. See Roberts v. Lubrizol
Corp., 582 F. App'x 455, 460 (5th Cir. 2014) (“The plaintiff must
prove pretext by the standard of but-for causation.”) (citing
Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133 S. Ct.
2517, 2533 (2013)).
21
Robinson v. Our Lady of the Lake Reg. Med. Ctr., Inc., 535 Fed.
App’x 348, 353 (5th Cir. 2013).
In this case, however, there is
nothing – not even temporal proximity – to link any of the
complained-of incidents, to plaintiff’s 2003 EEOC charge.
Plaintiff cites an incident in 2004, one in 2009, and a few in
2013, which occurred one year, six years and ten years,
respectively, after he filed his EEOC charge.
See Robinson, 535
Fed. App’x at 354 (“Five and six month gaps, respectively, between
a protected activity and an adverse employment action, are not
‘very close’ for the purpose of establishing a causal link”).
As
plaintiff cannot establish a prima facie case, defendant is
entitled to summary judgment on plaintiff’s retaliation claim.6
6
Although not raised by defendant, it is apparent that
plaintiff cannot establish the other element of his prima facie
case either. The standard for what constitutes an “adverse
employment action” for purposes of a retaliation claim is somewhat
different from the standard for a discrimination claim. For a
retaliation claim, “an adverse employment action is an action that
is ‘materially adverse’, that ‘might have dissuaded a reasonable
worker from making or supporting a charge of discrimination’.”
Jackson v. Frisco Indep. Sch. Dist., –F.3d – , 2015 WL 3687803, at
*8 (5th Cir. Feb. 22, 2015) (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345
(2006)). However, even under this standard, none of the incidents
which plaintiff has identified in support of his retaliation claim
– which are the same incidents he has identified as the basis for
his race discrimination claim – qualifies as “materially adverse.”
See Hernandez v. Johnson, 514 Fed. App’x 492, 499 (5th Cir. 2013)
(finding that “Letter of Counseling was not an adverse employment
action”) (citing Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.
Cir. 2008) (letter of counseling, letter of reprimand, and
unsatisfactory performance review were not adverse actions));
Earle v. Aramark Corp., 247 Fed. App’x 519, 524 (5th Cir. 2007)
(per curiam) (observing that “disciplinary write-ups” and
“micro-managing” are not “materially adverse employment actions”);
Robinson v. Our Lady of the Lake Regional Med. Ctr., Inc., 535
Fed. App’x 348, 351 (5th Cir. 2013) (mistreatment that was not
22
Conclusion
Based on all of the foregoing, it is ordered that defendant’s
motion for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this
6th
day of July, 2015.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
treatment was not so severe or pervasive as to constitute a
hostile work environment was not a materially adverse employment
action).
23
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