Harding v. Millsource, Inc.
Filing
45
MEMORANDUM OPINION and ORDER denying 28 Motion for Summary Judgment filed by Millsource, Inc. (Ordered by Judge John McBryde on 8/21/2015) (npk)
U.S. DiSTRiCT COURT
. NORTHERN DiSTRiCTOFTEXAS
FILED
"'--"1
IN THE UNITED STATES DISTRICTC0'rl'
NORTHERN DISTRICT OF T XAS. ) .~ 2 I 201l:
FORT WORTH DIVISIO
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KENNETH A. HARDING,
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Plaintiff,
VS.
MILLSOURCE, INC., D/B/A
WOODGRAIN DISTRIBUTION,
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.
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CI.EIU'1 U.S. D1STHiCTCC;( ~'
H~ - - -...7C•.••: ...···_ ..··•··
NO. 4:14-CV-676-A
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Defendant.
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MEMORANDUM OPINION
and
ORDER
Now before the court for consideration is the motion for
summary judgment filed in the above-captioned action by
defendant, Millsource, Inc., d/b/a Woodgrain Distribution.
Plaintiff, Kenneth A. Harding, filed a response.
Having now
considered the parties' filings, the entire summary judgment
record, and the applicable legal authorities, the court concludes
that the motion should be denied.
1.
Plaintiff's Claims
Plaintiff initiated this action by filing a complaint on
August 18, 2014, alleging claims of race discrimination pursuant
to 42 U.S.C.
§
2000 et seq.
pursuant to Title VII.
("Title VII") and retaliation
He alleged that he was verbally
reprimanded and eventually terminated because of his race
(caucasian) and that he was also terminated in retaliation for
the filing of a complaint of racial discrimination with the Equal
Employment Opportunity Commission ("EEOC").
II .
Grounds of Defendant's Motion and the
Nature of Plaintiff's Response
A.
Defendant's Motion
Defendant argued that summary judgment is appropriate as to
plaintiff's claim of racial discrimination insofar as it is based
on his receipt of a verbal warning in November 2011, because
plaintiff cannot show he suffered an adverse employment action or
that he was treated less favorably than other similarly-situated
employees, and therefore there is no evidence of discrimination.
Defendant also argued that summary judgment is appropriate as to
plaintiff's claim of retaliation
because plaintiff cannot
establish a prima facie case of discrimination because plaintiff
has failed to present sufficient evidence to establish a causal
connection between his engagement in a protected activity and his
discharge.
Moreover, defendant argued, even if plaintiff can
establish a prima facie case of retaliation, plaintiff cannot
overcome defendant's legitimate, nonretaliatory reason for
terminating plaintiff.
2
B.
Plaintiff's Response
Plaintiff's responsive documents offered no argument against
summary judgment as to his claim of discrimination.
The brief in
support of his response contends only that certain issues "are
either established for Plaintiff's retaliation cause of action or
are triable issues of fact that Defendant has been unable to
eliminate in its Motion."
Doc. 33 at 2. 1
As to his claim of retaliation, plaintiff argued that the
knowledge of the decisionmaker that plaintiff had engaged in a
protected activity, coupled with the short lapse of time between
that activity and his termination, created a fact issue as to the
causal element of his prima facie case.
Moreover, plaintiff
argued that he has created a fact issue as to whether he would
have been terminated but for his filing a complaint with the EEOC
because:
(1) defendant has given multiple, shifting reasons for
his termination;
policies;
(2) he did not violate any of defendant's
(3) defendant did not investigate plaintiff's internal
or EEOC complaints; and (4) defendant did not follow company
policy in termination.
The "Doc. _ " references are to the numbers assigned by the clerk to the referenced items on
the docket of this action.
1
3
III .
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if 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, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. civ. P. 56(c)
("A party
asserting that a fact . . . is genuinely disputed must support
the assertion by . . . citing to partiCUlar parts of materials in
4
the record
.n).
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
In Mississippi Prot. & Advocacy
Sys. v. Cotten, the Fifth Circuit explained:
Where the record, inclUding affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.'
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy sys., 929 F.2d at 1058.
'In Boeing Co. v. Shipman, 41 I F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
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IV.
Summary Judgment Evidence
The following is an overview of the summary jUdgment
evidence pertinent to defendant's motion that is undisputed in
the summary judgment record:
Plaintiff is a caucasian male who was employed as a truck
driver by defendant from approximately March 21, 2011 to April 3,
2012.
Defendant's General Manager, Joe Wettstein ("Wettstein"),
interviewed plaintiff and hired him.
On June 27, 2011,
plaintiff's supervisor, Ruben Fox ("Fox"), issued to plaintiff a
verbal counseling/warning, because plaintiff did not note damage
to a trailer in his pre-trip inspection form.
This verbal
counseling/warning had no effect on plaintiff's terms of
employment, though he "might have had a few less routes that day,
a few less runs that week."
Doc. 30 at 174.
Plaintiff received
an employee counseling form with a written warning for rapid
speed changes signed by Wettstein and dated February 17, 2012.
On February 21, 2012, plaintiff completed an EEOC intake
questionnaire wherein he complained that he was treated
differently than other non-Hispanic caucasian employees.
On
March 1, 2012, plaintiff had his first accident while driving for
defendant.
He followed company policy as to the reporting of
that accident.
6
On March 4, 2012, plaintiff filed a charge of discrimination
with the EEOC, which complained of his verbal warning for not
writing up "a discrepancy with a trailer prior to leaving the
facility by supervisor Mr. Ruben Fox."
Doc. 30 at 213.
He
stated that he was being discriminated against because of his
race.
At some point in March 2011, wettstein saw a copy of the
charge of discrimination.
Plaintiff had a second accident while driving for defendant
on April 3, 2012 at approximately 9:28 a.m.
At approximately
10:42 a.m. he spoke with Fox, but did not report the accident to
him.
Wettstein first learned of the accident when a call from
the police was transferred to him.
Plaintiff spoke to wettstein
at 11:46 a.m. and told him of the accident.
(The parties dispute
whether plaintiff was returning a previous call from Wettstein.)
At 4:00 p.m. on that same day, Marisela Vela, who at the time was
the Human Resources Representative for defendant's Houston
facility, and Wettstein met with plaintiff and told him they were
terminating his employment.
Wettstein made the decision to
terminate plaintiff.
Plaintiff filed a second charge with the EEOC on July 23,
2012, which stated that he was terminated in retaliation for
filing his prior EEOC charge.
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V.
Analysis
A.
Discrimination
In order to prevail on a claim for discrimination pursuant
to Title VII,
plaintiff must first establish a prima facie case of
discrimination, which requires a showing that plaintiff
(1) is a member of a protected group; (2) was qualified
for the position at issue; (3) was discharged or
suffered some adverse employment action by the
employer; and (4) was replaced by someone outside his
protected group or was treated less favorably than
other similarly situated employees outside the
protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556
(5th Cir. 2007).
Defendant argued that plaintiff has not alleged that he suffered
an adverse employment action.
To be considered adverse, an
alleged discriminatory action must "consist of ultimate
employment decisions such as hiring, firing, demoting, promoting,
granting leave, and compensating."
Tex., 764 F.3d 500, 503
Thompson v. City of Waco,
(5th Cir. 2014).
As noted above, plaintiff's response to defendant's motion
does not address his claim of discrimination.
Supra at 3.
Plaintiff's charge of discrimination with the EEOC mentioned only
the verbal reprimand as an adverse employment action.
The court
agrees with defendant that the verbal reprimand does not satisfy
the "adverse employment action" element of a prima facie case of
race discrimination in violation of Title VII.
8
See, Doc. 29 at
9-12.
Therefore, summary judgment is to be granted as to
plaintiff's discrimination claim.
B.
Retaliation
Defendant's motion also argued that summary judgment should
be granted as to plaintiff's claim of retaliation, because (1)
plaintiff cannot show a causal connection between his termination
and the alleged protected activity, and (2) even if plaintiff can
establish a prima facie case of retaliation, plaintiff cannot
overcome defendant's legitimate, non-retaliatory reason for
terminating his employment.
In analyzing a claim of retaliation under Title VII which is
based on circumstantial evidence, courts use the McDonnell
Douglas evidentiary framework.
Septimus v. University of
Houston, 399 F.3d 601, 608 (5th Cir. 2005).
Under such
framework, a plaintiff must first establish a prima facie case of
discrimination "by demonstrating 1) he engaged in a protected
activity, 2) he suffered an adverse employment decision, and 3) a
causal link exists between the protected activity and the adverse
employment decision."
Medina v. Ramsey Steel Co., Inc"
674, 684 (5th Cir. 2001).
238 F.3d
"[O]nce the plaintiff establishes a
prima facie case of unlawful retaliation, the burden shifts to
the defendant to articulate a legitimate, nondiscriminatory
reason for the adverse employment action."
Id.
If the employer
meets this burden, then plaintiff must "demonstrate that the
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employment action would not have occurred 'but for' the protected
activity."
Id.
It is undisputed that plaintiff engaged in a protected
activity by filing his charge of discrimination on March 4, 2012.
It is further undisputed that plaintiff's termination on April 3,
2012, constituted an adverse employment decision.
However,
defendant argued that plaintiff cannot establish a causal link
between the two.
In Long v. Eastfield College, 88 F.3d 300, 306
(5th Cir 1996), the Fifth Circuit held that the fact that
plaintiffs made a complaint about their supervisors, the
supervisors had knowledge of those complaints, and that the
supervisors then terminated plaintiffs after learning of such
complaints was enough to establish a causal link between the
supervisor's recommendation of termination and the protected
activity.
Similarly, there is substantial evidence that
Wettstein knew of that charge prior to terminating plaintiff, and
plaintiff was terminated approximately one month after making
such charge.
Plaintiff has presented evidence that Wettstein spoke to
plaintiff at 11:46 a.m., decided to terminate plaintiff by 12:02
p.m., and completed the termination paperwork by 2:00 p.m.
App. at 363-366.
Pl. 's
That, combined with the decisionmaker's
knowledge of the EEOC complaint and the close temporal proximity
between defendant learning of the complaint and plaintiff's
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termination, might well be viewed to be evidence that plaintiff
would not have been terminated but for his protected activity.
While defendant's arguments are persuasive, and could ultimately
prevail, the court is not prepared at this time to rule that
defendant's motion should be granted as to the retaliation claim.
Therefore, the motion for summary jUdgment is to be denied as to
plaintiff's retaliation claim.
VI.
Order
Therefore,
The court ORDERS that defendant's motion for summary
jUdgment be, and is hereby, granted as to plaintiff's
discrimination claim, which is hereby dismissed, and denied as to
his retaliation claim.
SIGNED August 20, 2015.
/c
District~ dge
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