Jackson v. Safety-Kleen Systems, Inc.,

Filing 39

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER CONTINUING FINAL PRETRIAL CONFERENCE - GRANTING 20 MOTION for Summary Judgment and Brief in Support filed by Safety-Kleen Systems, Inc. Final Pretrial Conference RESET for 11/5/2012. Signed by Magistrate Judge Don D. Bush on 9/25/2012. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ROBERT JACKSON
Plaintiff,
VS.
SAFETY-KLEEN SYSTEMS, INC.
Defendant.

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CASE NO. 4:11CV262

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AND ORDER CONTINUING FINAL PRETRIAL CONFERENCE
Now before the Court is Defendant’s Motion for Summary Judgment (Dkt. 20). As set forth
below, the Court finds that the motion should be GRANTED as to Plaintiff’s claims of racial
discrimination and under Title VII, section 1981 and the Texas Labor Code and age discrimination
under the ADEA and DENIED as to Plaintiff’s claims of age discrimination under the TCHRA.
FACTUAL BACKGROUND
Plaintiff, Robert Jackson filed this suit against his former employer, Safety-Kleen Systems,
Inc. Jackson claims he was fired because of his race (African-American) and his age (56). SafetyKleen maintains that Jackson was fired because, as a lead man for the plant, he failed to inspect a
shipment that contained hazardous waste. The shipment was deposited in a Georgia landfill before
it was discovered that it contained toxic waste. This necessitated placating federal and state
agencies, remediating the Georgia fill, and paying fines. All this cost Safety-Kleen over $600,000.
Defendant seeks summary judgment as to Plaintiff’s claims of race and age discrimination.

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SUMMARY JUDGMENT STANDARD
Both parties have ably briefed the issues before the Court. Summary judgment is appropriate
where the competent summary judgment evidence demonstrates that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Bolton v. City of
Dallas, Tex., 472 F.3d 261, 263 (5th Cir. 2006); see FED .R.CIV .P. 56(c). A genuine issue of
material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence is
viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
ANALYSIS
Racial Discrimination
Jackson maintains he was fired on the basis of his race. The Fifth Circuit applies the
modified McDonnell Douglas approach in racial discrimination cases under Title VII. Rachid v.
Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-803, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Under this approach, Jackson
must first make a prima facie case of racial discrimination. Davis v. Dallas Area Rapid Transit, 383
F.3d 309, 317 (5th Cir. 2004). Then, Safety-Kleen must articulate a legitimate, non-discriminatory
reason for firing Jackson. Id. If Safety-Kleen provides a legitimate, non-discriminatory reason, the
presumption of discrimination disappears. Id. Jackson must then “offer sufficient evidence to create
a genuine issue of material fact either (1) that [Safety-Kleen’s] reason is not true, but is instead a
pretext for discrimination (pretext alternative); or (2) that [Safety-Kleen’s] reason, while true, is only

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one of the reasons for its conduct, and another ‘motivating factor’ is [Jackson’s] protected
characteristic (mixed-motives alternative).” Rachid, 376 F.3d at 312 (internal marks and citation
omitted).
Jackson must first demonstrate a prima facie case. Jackson says he does. Safety-Kleen says
he does not.
To make a prima facie case, Jackson must show that he is a member of a protected class,
qualified to do his job, and was fired and replaced by someone outside his protected class. See Byers
v. Dallas Morning News, Inc., 209 F.3d 419,426 (5th Cir. 2000). A plaintiff can also establish a
prima facie case under the fourth prong if he can show that he was treated less favorably because of
his membership in that protected class than other similarly situated employees who were not
members of the protected class, under nearly identical circumstances. See Lee v. Kansas City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009).
If Jackson establishes a prima facie case, Safety-Kleen must proffer a legitimate, nondiscriminatory reason for firing Jackson. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th
Cir. 2002). It is a burden of production, not persuasion. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000). To meet its
burden, Safety-Kleen “must clearly set forth, through the introduction of admissible evidence, the
reasons for [Jackson’s firing].” Burdine, 450 U.S. at 255. Safety-Kleen is allowed to be incorrect
in its assessment of the facts it relies on to justify firing Jackson, but it is not allowed to have any
discriminatory animus against him in making its decision. See Sandstad, 309 F.3d at 899; Laxton

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v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003).
It is Safety-Kleen’s position that, after conducting an investigation into the incident, Jackson
was fired for not inspecting the shipment and, as such, violated shipping policy. Although there was
no written policy or protocol for inspection, Safety-Kleen maintains that his training was on the job,
and he was trained in how to inspect shipments. Safety-Kleen maintains that Jackson cannot show
that he was treated less favorably than non-black employees under nearly identical circumstances.
Safety-Kleen maintains that to do so he would have to show that non-black employees committed
the same or similar violations as he did but were not discharged. Safety-Kleen says that there are
simply no other nearly identical circumstances.
“The employment actions being compared will be deemed to have been taken under nearly
identical circumstances when the employees being compared held the same job or responsibilities,
shared the same supervisor or had their employment status determined by the same person, and have
essentially comparable violation histories.” Lee, 574 F.3d at 260. Jackson contends that the use of
the comparator analysis is wrong, since Safety-Kleen had no written workplace rules. Nevertheless,
Jackson says at least four other employees played a role in the mishap. Having reviewed the
summary judgment evidence, it appears to the Court that, although Jackson was the last and only
person charged with ensuring that the shipment was correct before the truck left the facility, other
employees may have played some part in either transposing numbers on the trailer manifest or failing
to put on a placard noting toxic chemicals. The summary judgment evidence also indicates that,
while conducting checkouts, Jackson understood that he served in a gatekeeper role and would be
the last person to inspect the cargo. See Dkt. 20-2 at p. 71:5-19.

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Yet, in his Response and Sur-Reply, Jackson also notes that all of the employees had a
responsibility for ensuring that the goods were properly loaded and checked. In essence, what
Jackson is arguing based on the summary judgment record is plausible. It seems that the appropriate
inquiry is not whether the employees hold the same job titles necessarily but whether the employer
subjected them to different employment policies. See Lathem v. Department of Children and Youth
Services, 172 F.3d 786, 793 (11th Cir. 1999).
However, the Court is guided by Fifth Circuit law. Part of the analysis is that the
comparators must have comparable violation histories. Lee, 574 F.3d at 260-61. None do. In fact,
Jackson acknowledged that he was aware of no similar incidents when a hazardous load was sent
to a non-hazardous site. See Dkt. 20-3 at App. 116-117.
In the deposition of the plant supervisor, Sorenson testified that a number of people were
suspended for allowing a barrel containing PCBs to be loaded on a tanker. Some were Caucasion,
and at least one was African-American. See Dkt. 20-5 at App. 250- 253. But the Court finds that
this incident is not comparable. African-American and Caucasian employees received identical
treatment (a 1-day suspension) and only one barrel was involved which was caught in time to avoid
serious consequences.
Jackson was terminated due to the severity of the consequences including federal and state
fines not to mention the costs of clean up. Sorenson stated that the severity of the incident required
the drastic remedy of termination although he basically stated that Jackson was a good long-term
employee. The Court finds that the comparator test fails to support Jackson’s position. He has not

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shown that the conduct as compared to others was taken under nearly identical circumstances.
Therefore, the Court finds that the Safety-Kleen’s argument has merit.
Jackson maintains that the comparator analysis is not necessary in any event because he was
replaced by a Caucasian male. According to the plant supervisor, an African-American named
Daniel West was promoted to the lead position following Jackson’s termination. See Dkt. 20-10 at
App. 641. Jackson maintains that Kirk Pendergrass who is white replaced him. However, even
Jackson testified that Pendergrass had the same position as he. See Dkt. 20-3 at App. 134, Depo. P.
133:1-6). The distinction that Plaintiff makes is that the day lead was more prestigious than the night
lead. The Court finds that there is no genuine issue that Plaintiff’s position was filled by an AfricanAmerican. The same analysis would hold true under the Texas statute. See Herbert v. City of Forest
Hill, 189 S.W. 3d 369, 375-76 (Tex. App.– Fort Worth, 2006, no pet.). The summary judgment
record before the Court fails to create a genuine issue of material fact as to a prima facie case of
racial discrimination. Therefore, summary judgment should be GRANTED as to Plaintiff’s federal
claims of racial discrimination. Because the same analysis applies to the state claims, summary
judgment should be GRANTED as to those claims as well.
Age Discrimination
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1).
To establish a prima facie case of employment discrimination under the ADEA for discharge,

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Plaintiff must prove that: “(1) [he] was discharged; (2) [he] was qualified for the position; (3) [he]
was within the protected class at the time of 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.” Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citing
Rachid, 376 F.3d at 309). Once a plaintiff establishes a prima facie case, the defendant must set
forth a legitimate, nondiscriminatory reason for the employment action it took against the plaintiff.
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). This is a burden of production,
not persuasion, on the defendant's part, and it “can involve no credibility assessment.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 125 L.Ed. 2d 407 (1993). If the defendant
meets this burden, the plaintiff must establish that the employment action occurred because of
intentional age discrimination. Machinchick, 398 F.3d at 350. This means that a plaintiff bringing
a disparate-treatment claim under the ADEA must prove “that age was the but-for cause of the
challenged adverse employment action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178, 129 S.
Ct. 2343, 174 L. Ed. 2d 119 (2009) (internal quotation marks omitted). The ADEA does not provide
that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Id.
at 174.
According to the record before the Court, Jackson’s replacement was 36 years-old.
Therefore, the Court finds that Jackson has established a prima facie case of age discrimination.
Safety-Kleen has stated a nondiscriminatory reason for its termination of Jackson. Therefore, under
the federal standard, Jackson must offer summary judgment evidence to create a genuine issue of
material fact that would show that age was the cause for his termination. Having reviewed the record

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before it, the Court finds that there is no summary judgment evidence to create a genuine fact issue
that Jackson was terminated solely because of his age. Because Plaintiff has failed to sustain his
summary judgment burden, the Court finds that summary judgment should be GRANTED as to
Plaintiff’s ADEA claims.
The standard is different under the TCHRA. To establish a prima facie case of age
discrimination under the TCHRA, a plaintiff in a true replacement case must show that he or she
was (1) a member of the protected class, (2) qualified for his or her employment position, (3)
terminated by the employer, and (4) replaced by someone younger. Under the TCHRA, “an
employer commits an unlawful employment practice if because of race, color, disability, religion,
sex, national origin, or age the employer ... discharges an individual or discriminates in any other
manner against an individual in connection with compensation or the terms, conditions, or privileges
of employment.” TEX . LAB. CODE ANN . § 21.051 (2011); see generally Mission Consol. Indep. Sch.
Dist. v. Garcia, 2012 WL 2476911, at *2 (Tex. 2012).
The Texas Legislature has indicated that Texas courts should look to federal law for guidance
on interpreting the TCHRA. TEX . LAB. CODE ANN . § 21.001(1). Section 21.051 is effectively
identical to Title VII except that Title VII does not protect against age and disability discrimination.
Mission Consol., 2012 WL 2476911, at *2. The Texas Supreme Court has held that, under the
TCHRA, a plaintiff need only prove that age discrimination was “a motivating factor” in the
termination decision. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).
Here, Jackson has some offered circumstantial summary judgment evidence of age-related

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discrimination. There is no direct evidence; thus, the case is viewed as one of a pretext case. See
generally Hernadez v. Grey Wolf Drilling, L.P., 350 S.W.3d 281, 284 (Tex. App. San Antonio, 2011,
no writ). Under Texas law, mixed-motive age discrimination claims are viable. See generally id.
at 285. Expressions may be direct evidence of motivation, and not mere “stray remarks,” when they
are (1) made by the decision maker or one whose recommendation is sought by the decision maker,
(2) related to the specific employment decision challenged, and (3) made close in time to the
decision. See generally Lo v. Federal Deposit Ins. Corp., 846 F.Supp. 557, 564 (S.D. Tex. 1994),
aff’d, 52 F.3d 1066 (5th Cir. 1995).
Jackson claims to have been subject to a number of ageist statements and that such was
tolerated by Safety-Kleen. Jackson says one of the comments came from his supervisor shortly
before he was fired. According to Ellison’s deposition, Jackson’s supervisor Lewis was part of the
investigation team. See Dkt. 25-5 at App. 69-70. Therefore, on the issue of his claim under the
TCHRA, the Court finds that there is a fact issue for resolution and summary judgment should be
DENIED as to those claims.
Therefore, the Court finds that the only issue reserved for trial is Plaintiff’s claim under the
TCHRA as to age discrimination. The question becomes whether the Court should exercise
supplemental jurisdiction under 28 U.S.C. § 1367. Section 1367(c)(3) permits the court to dismiss
the case state claims without prejudice when it has dismissed all claims over which it has original
jurisdiction. See 28 U.S.C. §1367(c)(3). The Court recommends dismissal of the remaining
TCHRA claim primarily for the reason that the Court does not have sufficient resources to try the
case in light of the federal claims being dismissed. The District is short two District Judges, and

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when the parties insist on their constitutional right to trial by an Article III, the case is necessarily
subject to one of the busiest criminal dockets in the United States. The parties would be better
served by litigating the remaining issue in state court where chances are that a trial would be more
expedient.
RECOMMENDATION
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.
§ 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
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injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).
To allow the District Judge sufficient time to consider this report and any objections filed,
the final pretrial conference in this matter, if necessary, is continued until November 5, 2012.
SIGNED this 25th day of September, 2012.
.

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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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