Johnson v. Calsonic
Filing
42
Memorandum Opinion and Order granting 34 MOTION for Summary Judgment . A final judgment will be entered as set out herein. Signed by District Judge Tom S. Lee on 12/12/16 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ANDRES C. JOHNSON
VS.
PLAINTIFF
CIVIL ACTION NO. 3:15CV567TSL-RHW
CALSONIC
DEFENDANT
MEMORANDUM OPINION AND ORDER
Plaintiff Andres Johnson has brought the present action under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
complaining of alleged racial discrimination by defendant
Calsonic.
The record disclosed the following undisputed facts.
Calsonic is in the business of manufacturing automotive
parts, which are supplied to Nissan Corporation at its plant in
Canton, Mississippi.
In March 2014, Johnson, who is African
American, applied for a job with Calsonic.
As part of the hiring
process, Johnson was required to undergo a mandatory drug test,
which was to be done at a local MEA medical clinic.
2014, Johnson went to MEA for the drug test.
On May 12,
According to
Johnson, however, he was turned away by MEA and not allowed to
take the drug test, with no explanation given.
When MEA related
to Calsonic that Johnson had refused or been unable to take the
required drug test, Calsonic denied him employment.
Thereafter,
Johnson and his mother repeatedly called Calsonic, questioning its
decision and demanding reconsideration.
They also repeatedly
called MEA, demanding to know why Johnson had not been allowed to
take the drug test; and they persisted in calling even after MEA
told them to stop.
Eventually, Johnson even filed a lawsuit
against MEA over its alleged refusal to allow him to be tested.1
Subsequently, in February 2015, Johnson sought employment
through a temporary staffing company, Onin Staffing.
He underwent
a drug test through Onin, which he passed, following which Onin
assigned him to work at Calsonic, driving a forklift on the night
shift.
However, after he had been at Calsonic for two weeks,
Calsonic became aware of his employment and informed Onin of his
previous harassing behavior and requested his removal from the
assignment to Calsonic.
Shortly following his removal from the
Calsonic assignment, Johnson filed a charge of discrimination with
the EEOC alleging race discrimination.
Plaintiff timely filed the
present action after the EEOC issued its notice of right to sue.
In its present motion, defendant contends that summary
judgment is in order as to any claim based on Calsonic’s May 2014
hiring decision on the basis that such claim is not timely and/or
because Johnson cannot establish a prima facie case of race
discrimination and/or cannot demonstrate that Calsonic’s reason
for not hiring him, i.e., that he did not take the mandatory drug
test, is pretextual.
It further argues that it is entitled to
1
That case, filed in this court, was dismissed for lack
of subject matter jurisdiction. See Johnson v. MEA Clinic, Civ.
Action No. 3:15CV798WHB-JCG (S.D. Miss. Apr. 6, 2016).
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summary judgment on any claim against it relating to his 2015
termination by Onin since Onin, not Calsonic, was Johnson’s
employer, and because in any event, he cannot demonstrate the
elements of his prima facie case or show that the reason for his
removal from the position, i.e., his harassing behavior following
the denial of employment in 2014, was pretextual.
Summary Judgment Standard
Summary judgment is proper when the evidence 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–52, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
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, 477 U.S. at 248, 106 S. Ct. 2505.
Rule 56
“mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails ... 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.”
Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986)).
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In evaluating a summary judgment motion, the court must draw
reasonable inferences and construe evidence in favor of the
nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986).
However, a nonmovant may not rely on “conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence” to create a genuine issue of material fact.
Freeman v.
Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004).
Title VII:
Title VII prohibits an employer from “discharg[ing] an
individual, or otherwise discriminat[ing] against any individual
... because of such individual's race.”
42 U.S.C.§ 2000e-2(a)(1).
Before a Title VII plaintiff may file suit in federal court, he
must first “file[] a timely charge with the EEOC[,] and receive []
a statutory notice of right to sue” before bringing a suit in
federal court.
Taylor v. Books a Million, Inc., 296 F.3d 376,
378-79 (5th Cir. 2002) (citing Dao v. Auchan Hypermarket, 96 F.3d
787, 788-89 (5th Cir. 1996)).
A charge is considered “timely” if
it is filed with the EEOC within 180 days of the unlawful conduct.
42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109 122 S. Ct. 2061, 153 L. Ed. 2d 106
(2002).
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In cases where a Title VII claim has been timely filed, the
plaintiff, in order to prevail, must either produce direct
evidence of discrimination or, in the absence of direct evidence,
must first establish a prima facie case of discrimination.
Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097,
147 L. Ed. 2d 105 (2000).
If he succeeds in this, the defendant
may then offer a legitimate, non-discriminatory reason for the
challenged employment decision, at which time the plaintiff “‘must
then offer sufficient evidence to create a genuine issue of
material fact either (1) that the defendant's reason is not true,
but is instead a pretext for discrimination (pretext alternative);
or (2) that the defendant's reason, while true, is only one of the
reasons for its conduct, and another motivating factor is the
plaintiff's protected characteristic (mixed-motive[s]
alternative).’”
Keelan v. Majesco Software, Inc., 407 F.3d 332,
341 (5th Cir. 2005) (quoting Rachid v. Jack In The Box, Inc., 376
F.3d 305, 312 (5th Cir. 2004)).
2014 Failure to Hire
Calsonic first argues that any claim plaintiff may be
asserting relating to the May 2014 denial of employment is
untimely because it occurred more than 180 days before he filed
his charge with the EEOC.
Indeed, plaintiff filed his EEOC charge
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on April 30, 2015, over eleven months after the alleged denial of
employment.
Therefore, any potential claim based on Calsonic’s
actions in May of 2014 is time-barred as a matter of law.
Plaintiff does not dispute this, and in fact, he does not
respond to Calsonic’s timeliness argument or to any of Calsonic’s
arguments relating to its 2014 failure to hire plaintiff.
Moreover, while not entirely clear, it appears from his complaint
and his response to the motion that the real focus of this lawsuit
is his 2014 termination/removal.
The court would note, though,
that even if plaintiff were asserting a claim based on the 2014
failure to hire, and even if that claim were timely, it would
still fail because, as Calsonic correctly asserts, plaintiff
cannot establish a prima facie case or prove that the reason given
by Calsonic for not hiring him is pretextual.
To establish a prima facie case on a failure to hire claim,
the plaintiff must show that “(1) he belongs to a protected class;
(2) he applied for and was qualified for a position for which
applicants were being sought; (3) he was rejected; and (4) a
person outside of his protected class was hired for the position.”
Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408,
412 (5th Cir. 2007) (citation omitted).
While Johnson is a member
of a protected class, and applied for a position and was rejected,
he freely admits that he never satisfied one of the requirements
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for employment, namely, passing a drug test.2
He complains that
his failure to pass a drug test was not his fault; rather, while
he was more than willing to be tested, MEA, for reasons unknown to
him, refused to administer him a drug test.
Even accepting that
to be true, it does not to detract from the fact that he did not
pass a drug test.3
In addition, plaintiff has offered no proof
that he was after he was rejected, Calsonic filled the position in
question with someone outside his protected class.
He agreed, in
fact, that “it’s more black employees [at Calsonic] and it wasn’t
like a white man came behind me or anything.”
Moreover, plaintiff
has essentially admitted that he has no actual evidence that
Calsonic’s decision to not hire him was racially motivated.
He
2
In his deposition, Johnson expressly acknowledged that
he had to pass a drug test in order to be hired by Calsonic:
Q. Do you believe that that was a necessary qualification to
become a permanent employee of Calsonic?
...
A. Absolutely you have to pass the drug test. Absolutely.
He reiterated this, stating that at Calsonic,
You will not get on if you don’t pass a drug test. If
you don’t pass a drug test, you’re not going to get
hired. Ain’t nobody – that’s, like, impossible up there.
3
While plaintiff indicated in his deposition that he did
not know why MEA refused to allow him to be drug tested, he
speculated that MEA’s refusal may have been based on his race.
However, he has no proof that MEA’s refusal was racially based
and, more pertinently, none that Calsonic had any involvement in
MEA’s refusal to administer him a drug test. He did testify that
he thought Calsonic was “in cahoots” with MEA, but he had no proof
of any collusion.
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testified that he believes the decision was based on race solely
because he “can’t see nothing else” that it could have been, so by
a process of elimination, he concludes that it must have been
racially motivated.
But the law is clear that “an employee’s
subjective belief of discrimination alone is not sufficient to
warrant judicial relief.”
Auguster v. Vermilion Parish Sch. Bd.,
249 F.3d 400, 403 (5th Cir. 2003).
Finally, as regards the 2014 failure to hire, even if
plaintiff could establish a prima facie case, he has no proof that
Calsonic’s articulated reason for not hiring him is pretextual.
Calsonic has proffered a legitimate, nondiscriminatory reason for
not hiring plaintiff: it rejected him for employment because MEA
advised that he failed to take and pass a drug test.
When an employer articulates a legitimate, nondiscriminatory
reason for a challenged employment decision, it falls to
plaintiffs to establish pretext by showing that the proffered
reason is “false” or “unworthy of credence.”
See Vaughn v.
Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (internal
quotation marks and citation omitted).
To prove pretext, the
plaintiff must rebut the nondiscriminatory reason with
“substantial evidence.”
(5th Cir. 2003).
Laxton v. Gap Inc., 333 F.3d 572, 578
Plaintiff has failed to come forward with
evidence to satisfy this burden.
Plaintiff testified that he
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assumes Calsonic rejected him based on what MEA told it; and he
has “no earthly idea what [MEA] said about [him] to make [him]
lose a whole job.”
He does say, as indicated supra, that he
believes the decision was discriminatory.
But again, and as the
Fifth Circuit has repeatedly made clear, a plaintiff does not
sustain her burden to prove pretext with proof of nothing more
than her subjective belief that discrimination was involved.
See,
e.g., Pennington v. Texas Dept. of Family and Protective Servs.,
469 Fed. Appx. 332, 339 (5th Cir. 2012) (employee's “subjective
belief that she was the victim of retaliation, even if that belief
is genuine, is insufficient to carry her case without further
evidence of pretext”); Roberson v. Alltel Information Servs., 373
F.3d 647, 654 (5th Cir. 2004) (plaintiff's “subjective belief that
[he] was not selected for the [] position based upon race or age
is [] insufficient to create an inference of the defendants'
discriminatory intent”)(internal quotations and citations
omitted).
It is clear from the foregoing that Calsonic is entitled to
summary judgment on any potential claim based on its 2014 failure
to hire Johnson.
2015 Termination
Calsonic contends that plaintiff’s claim relating to his 2015
termination by Onin fails as a matter of law for a number of
reasons, including that Onin, not Calsonic, was plaintiff’s
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employer; that it had a legitimate, nondiscriminatory reason for
his removal which he cannot demonstrate was pretext for
discrimination.
Only employers are subject to liability under Title VII.
See
Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994).
Calsonic maintains that it cannot be liable as it was never
Johnson’s employer.
Instead, he was hired by Onin, which in turn
assigned him to work at Calsonic.
The Fifth Circuit applies a “hybrid economic realities/common
law control” test to determine whether an employment relationship
exists within the meaning of Title VII.
The right to control an employee's conduct is the most
important component of this test.... When examining the
control component, we have focused on whether the
alleged employer has the right to hire and fire the
employee, the right to supervise the employee, and the
right to set the employee's work schedule.... The
economic realities component of our test has focused on
whether the alleged employer paid the employee's salary,
withheld taxes, provided benefits, and set the terms and
conditions of employment.
Barrow v. New Orleans Steamship Assoc., 10 F.3d 292, 296 (5th Cir.
1994) (citing Deal v. State Farm County Mut. Ins. Co. of Tex., 5
F.3d 117, 118–19 (5th Cir. 1993)).
Calsonic notes that plaintiff
has testified he was paid by Onin, not Calsonic; that his
employment was temporary; and that he did not have a contract with
Calsonic.
It submits, beyond that, that Johnson cannot show that
he was Calsonic’s employee.
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In response to Calsonic’s motion, plaintiff has made no
effort to show that he was Calsonic’s employee.
acknowledge this argument.
warranted.
He does not even
For this reason, summary judgment is
See Tran Enterprises, LLC v. DHL Exp. (USA), Inc., 627
F.3d 1004, 1010 (5th Cir. 2010) (“With respect to an issue on
which the nonmovant would bear the burden of proof at trial, if
the movant for summary judgment correctly points to the absence of
evidence supporting the nonmovant with respect to such an issue,
the nonmovant, in order to avoid an adverse summary judgment on
that issue, must produce sufficient summary judgment evidence to
sustain a finding in its favor on the issue.”).
Even if plaintiff could show that Calsonic was his employer,
Calsonic would still be entitled to summary judgment since
plaintiff has no evidence that Calsonic’s proffered legitimate,
nondiscriminatory reason for plaintiff’s removal was pretextual.
Calsonic has presented uncontradicted evidence that it requested
plaintiff’s removal in March 2015 based on his prior history of
conduct that Calsonic considered to be harassment.
Plaintiff has
offered no evidence to suggest this was not the real reason, or to
show that race was a factor in the decision.
Again, plaintiff
believes he was the victim of discrimination; but his belief is
insufficient to carry his burden.
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Conclusion
Based on all of the foregoing, it is ordered that Calsonic’s
motion for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
56 of the Federal Rules of Civil Procedure.
SO ORDERED this 12th day of December, 2016.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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