Opinion
Civil Action No. 3:04-CV-1879-P.
January 23, 2006
ORDER
Now before the Court is Defendants' Motion for Summary Judgment, Plaintiff's Motion to Strike Defendants' Summary Judgment Reply Brief Appendix, and Defendants' Motion for Leave to File Reply Appendix. After careful consideration of the parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiff's Motion to Strike Defendants' Summary Judgment Reply Brief Appendix, and GRANTS Defendants' Motion for Leave to File Reply Appendix.
The Motion was filed October 11, 2005. Plaintiff filed a Response on November 15, 2005, and Defendants filed a Reply on December 5, 2005.
The Motion was filed December 8, 2005. Defendants filed a Response on December 16, 2005, and Plaintiff filed a Reply on December 20, 2005.
The Motion was filed December 9, 2005, Defendants filed a Response on December 29, 2005.
I. Background
Plaintiff Darry L. Burrell ("Plaintiff") is an African-American male formerly employed by Defendants Dr Pepper/Seven Up Bottling Group, Inc. and Dr Pepper/Seven Up Bottling Group, L.P. (hereinafter "Defendants" or "Company"). Plaintiff was hired by Defendants as a Purchasing Manager in May 2001. After approximately one year of employment, Plaintiff's direct supervisor left the Company and recommended that Plaintiff be considered for her former position of Vice President of Purchasing. (Pl.'s Resp. at 2.) Plaintiff then proceeded to speak with Tom Taszerek ("Taszerek"), Executive Vice President of Administration, expressing his interest in being promoted to the vacant position. Plaintiff was allegedly told that the Company would look to hire someone possessing more experience, and Plaintiff was not considered for the position. (Def.'s Mot. Summ. J. at 3.) While the Company searched for candidates to fill the position, Plaintiff took over many of the duties of the Vice President of Purchasing, reporting directly to Jim Turner, the CEO of the Company. ( Id. at 2; Pl.'s Resp. at 11.) Sometime in October of 2002, Defendants hired Ted Koester ("Koester") as the new Vice President of Purchasing. The Company felt that Koester's many years of operations experience with Coca-Cola Enterprises and familiarity with the Company's suppliers qualified Koester for the position. (Def.'s Mot. Summ. J. at 3.) For several months, however, Plaintiff continued to perform many of the duties of the Vice President of Purchasing while Koester became acclimated with the Company. In its brief, Defendants admit that Plaintiff "did a great job" executing his increased duties. ( Id. at 2.) Plaintiff even received bonuses for his performance during this time. (Pl.'s Resp. at 12.)
However, the hiring of Koester soon caused dissension. During their first conversation, Plaintiff purportedly became offended when Koester stated that he had no qualms about firing employees and would even fire his own mother. ( Id. at 15.) Koester further explained that he lacked purchasing experience and would need Plaintiff to train him. ( Id.) Less than two weeks later, Koester allegedly attempted to tell Plaintiff a racist joke. Plaintiff responded that he did not want to hear the joke, and Koester later told Plaintiff that there was something intimidating about him. ( Id. at 16.) These events precipitated several meetings between Plaintiff and Taszerek, who also acted as the head of the Human Resources department. Plaintiff repeatedly voiced his concerns regarding Koester's lack of experience and the contentious work relationship that had developed.
Despite the efforts of both parties, the relations between Plaintiff and Koester did not improve. On July 18, 2003, Koester gave Plaintiff a generally negative performance review. ( See App. Pl.'s Resp. at 163-66.) In five of the six reviewed categories, Plaintiff was given a rating of marginal or unsatisfactory, the two lowest ratings. ( See id.) After discussing the review, Plaintiff received permission to formally respond to the ratings given him. (Pl.'s Resp. at 19.) By letter dated July 30, 2003, Plaintiff wrote to Koester, Taszerek, and Jim Turner, disputing the accuracy of his performance review. ( See id. at 167.) Plaintiff was terminated on August 4, 2003, allegedly for insubordination. (Def.'s Mot. Summ. J. at 2.) Plaintiff was offered a severance package if he signed a waiver that would release Defendants from any liability resulting from a discrimination claim. Plaintiff refused to sign the release and soon thereafter submitted a claim to the EEOC. The EEOC issued a right-to-sue letter and Plaintiff timely filed the current lawsuit. In his complaint, Plaintiff brings claims for:
1. Unlawful discrimination in violation of 42 U.S.C. § 1981 for refusal to consider for promotion and/or failure to promote because of race;
2. Unlawful discrimination in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, et seq. for termination based upon race; and
3. Unlawful retaliation in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, et seq. for refusal to promote and termination based upon previous complaints of race discrimination.
(Pl.'s Compl. at 6-9.) Defendants now move for summary judgment on all of Plaintiff's claims.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
III. Reply Appendix
As an initial matter, the Court DENIES Plaintiff's Motion to Strike Defendants' Summary Judgment Reply Brief Appendix and GRANTS Defendants' Motion for Leave to File Reply Appendix. Normally, the Court would not consider evidence submitted in a reply appendix unless the party first obtained leave of court to file such appendix. Dethrow v. Parkland Health Hosp., 204 F.R.D. 102, 104 (N.D. Tex. 2001) (Fitzwater, J.) (holding that summary judgment movant may not file appendix in support of reply brief without first seeking leave of court). But where a movant could not reasonably be expected to anticipate the arguments raised by the non-movant in the response, the court may consider an appendix submitted with a reply. See SEC v. Am. Automation, Inc., No. 3:98-1596-D, 2002 WL 570700, at *1 n. 3 (N.D. Tex. 2002) (Fitzwater, J.). The Court finds that Plaintiff's response contained several arguments that could not have been anticipated from deposition testimony. Defendants' reply and supporting appendix legitimately sought to rebut the response rather than make new arguments. Furthermore, the reply appendix does not consist of entirely new evidence. The appendix merely contains portions of previous deposition testimony that, out of a desire to be concise, were not submitted with Defendants' Motion for Summary Judgment. For these reasons, the Court will consider the evidence submitted.
IV. Analysis
Absent direct evidence of discrimination, Plaintiff's claims under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, et seq. ("Title VII") are analyzed under the tripartite burden-shifting test established by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Pratt v. City of Houston, 247 F.3d 601, 606 n. 1 (5th Cir. 2001). Under the McDonnell Douglas framework, Plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. The prima facie case, once established, raises a presumption of discrimination which Defendant must rebut by articulating a legitimate, nondiscriminatory reason for the challenged employment action. Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
If the employer carries its burden, the mandatory inference of discrimination created by the prima facie case disappears. Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). Under the modified McDonnell Douglas standard propounded by the Fifth Circuit, "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 alternative)." Rachid v. Jack in the Box, 376 F.3d 305, 311 (5th Cir. 2004) (citations omitted).
a. Failure to Promote
Plaintiff initially claims that he was discriminated against when he was not promoted to the job of Vice President of Purchasing. Penny Soriano ("Soriano"), the Company's former Vice President of Purchasing, interviewed Plaintiff in May of 2001. Plaintiff was hired and he worked extensively with Soriano to centralize and manage national purchasing for the Company. After one year together, in May of 2002, Soriano resigned. Before she left, Soriano spoke with Taszarek and recommended that Plaintiff be considered to replace her as Vice President of Purchasing. Plaintiff also spoke with Taszarek, expressing his interest in the promotion. But the Company did not consider Plaintiff for the position, instead they hired Koester in October of 2002. ( See Pl.'s Resp. at 8-10.)
Although not briefed by the parties, the Court believes Plaintiff's claim for failure to promote may be time-barred. A plaintiff bringing employment discrimination claims must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. See 42 U.S.C. § 2000e-5(e)(1) (2001); see also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Federal courts generally treat this 300-day filing requirement as in the nature of a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-394 (1982); see also Webb v. Cardiothoracic Surgery Assoc. of North Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998). Plaintiff had notice that he was not promoted in October of 2002; Plaintiff states in his complaint that he filed a charge with the EEOC "on or about December 3, 2004." (Pl.'s Compl. at 6.) As the complaint was filed August 27, 2004, the Court assumes Plaintiff filed with the EEOC in December of 2003. But this is still well over 300 days after learning of the allegedly wrongful conduct.
To survive Defendant's motion for summary judgment, Plaintiff must first establish a prima facie case. A prima facie case of unlawful discrimination based on a failure to promote is established by a showing that: (1) Plaintiff is a member of a protected class; (2) Plaintiff sought and was qualified for the position; (3) he was rejected for the position; and (4) the position was filled by someone outside the protected class or the employer continued to seek applicants with Plaintiff's qualifications. Medina, 238 F.3d at 680-81; Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000); see also Ramirez v. Univ. of Tex. Sw. Med. Center, No. 3:03-CV-2625-D, 2005 WL 1017820, at *3 (N.D. Tex. Apr. 28, 2005).
Plaintiff meets the first element of the prima facie case, as he is an African-American. The parties agree that Plaintiff met with Taszarek to discuss the open position. Based on Plaintiff's conversations with Taszarek, a reasonable jury could conclude that Defendants had reason to consider Plaintiff for the position. See Fuller v. Gen. Cable Indus., Inc., 81 F. Supp. 2d 726, 730-31 (E.D. Tex. 2000). Furthermore, Soriano recommended Plaintiff to be her successor, and Defendants admit that Plaintiff did a great job filling in while the Company was without a Vice President of Purchasing. The evidence is sufficient to support an inference that Plaintiff sought and was qualified for the position; the second prong is met. See id. at 731. Plaintiff was ultimately not promoted to Vice President of Purchasing, thus satisfying the third prong. Koester, a Caucasian outside of Plaintiff's protected class, was hired for the position. The fourth prong is established and Plaintiff has met his burden of showing a prima facie case.
Because Plaintiff has carried his burden, a presumption of discrimination arises and the burden of production shifts to Defendants to articulate a legitimate, non-discriminatory reason for not promoting Plaintiff. This burden is not onerous; an employer's proffered reason does not have to be persuasive or even credible, only legitimate and non-discriminatory. See Bodenheimer v. PPG Indus., 5 F.3d 955, 958 (5th Cir. 1993). Defendants aver that Plaintiff was not promoted because they were seeking someone with more experience in the bottling industry. Koester had over 15 years of experience, while Plaintiff had been in the bottling industry for merely a year. The Court finds this proffered reason satisfies Defendants' burden. "[B]asing a promotion decision on an assessment of qualifications will almost always qualify as a legitimate, non-discriminatory reason." Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999).
In the third stage of the analysis, the plaintiff is given the opportunity to prove that the defendant's proffered reason is merely a pretext for intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993). To prevent summary judgment, the plaintiff must establish pretext by showing that "discrimination lay at the heart of the employer's decision." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). In short, the question at the pretext stage is whether a rational trier of fact could find that Defendants discriminated against Plaintiff on the basis of race. See Pratt, 247 F.3d at 606. The ultimate burden of persuading the trier of fact that a defendant intentionally discriminated at all times remains with plaintiff. Reeves, 530 U.S. at 143.
Plaintiff initially contends that Defendants' reason for not promoting him to Vice President of Purchasing is pretextual, as he was clearly more qualified than Koester. Plaintiff contends that, upon his initial meeting with Taszarek, he was informed that the Company was seeking someone with more purchasing experience. Plaintiff purports to have had more than eight years of purchasing experience in the paper industry with his previous employer, in addition to over a year of purchasing experience with Defendants. Upon the hiring of Koester, Plaintiff immediately questioned his purchasing experience and now claims that Koester lacked any experience in purchasing. Defendants dispute this claim, alleging that Koester had significant experience in the bottling industry and was responsible for purchasing over $30 million worth of materials per year for Coca-Cola.
But even assuming the truth of Plaintiff's claims and viewing all evidence in his favor, as is appropriate at the summary judgment stage, Plaintiff has not shown that he was "clearly more qualified" than Koester, the man ultimately hired for Vice President of Purchasing. The Fifth Circuit has repeatedly stated that, to establish pretext by showing that a clearly more qualified candidate was not selected, the qualifications of the losing candidate must "leap from the record and cry out to all who would listen that he was vastly-or even clearly-more qualified for the subject job." Price, 283 F.3d at 723 (citing Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)). "[U]nless disparities in [qualifications] are so apparent as to literally jump off the page and slap us in the face, we judges should be reluctant to substitute our views for those individuals charged with evaluation duty by virtue of their years of experience and expertise in the field in question." EEOC v. La. Office of Cmty. Servs. 47 F.3d 1438, 1445 (5th Cir. 1995). Defendants state that Koester was hired because he had 14 years of bottling experience, purchasing experience, and a working relationship with most of the Company's existing suppliers. In addition, Koester was previously employed by Coca-Cola, the Company's largest competitor, and possessed an in-depth knowledge of Coca-Cola's internal supply chains. In light of this evidence, the Court is not persuaded that Plaintiff was "clearly more qualified" than Koester.
Furthermore, Plaintiff cannot raise an inference of discrimination by alleging that the decision-making criteria was subjective. Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003). But years of experience in the bottling industry is not a subjective gauge, it is clearly an objective means of determining qualifications for a position. The combination of Koester's unique skill set and past experience with a competitor could justifiably outweigh Plaintiff's qualifications, thus making it impossible for a rational fact-finder to conclude that Defendants' proffered reason was pretextual. Even assuming Plaintiff was qualified to be Vice President of Purchasing, the fact that he was not hired does not raise an inference of discrimination. An employer must be allowed to determine what experiences and qualifications are most relevant to filling an open position. See La. Office of Cmty., 47 F.3d at 1445.
Plaintiff cannot show that Defendants' reasons for not promoting him were pretextual, but Plaintiff can also withstand summary judgment if he can establish that Defendants' reason for terminating him was only one of the reasons for the firing, and that another `motivating factor' for failing to promote was Plaintiff's race. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). Plaintiff, however, fails to produce evidence that would raise a material issue of fact under either framework. Plaintiff provides the Court with substantial evidence detailing the circumstances surrounding Koester's hire, but fails to produce evidence suggesting that any of the employer's motivations were racially based.
b. Termination
After failing to be promoted, Plaintiff continued in his role as Corporate Purchasing Manager. But his working relationship with Koester proved to be problematic. Approximately nine months after Koester was hired, Plaintiff was terminated. He claims that race was a factor in the decision to terminate him and invokes a mixed-motive analysis. Defendants argue that he was terminated for insubordination, and that even if race was a factor in the decision to terminate him, Plaintiff would have been terminated anyway for the insubordination that he displayed toward Koester.
To survive summary judgment on his unlawful termination claim, Plaintiff must first establish a prima facie case of race discrimination by showing that: (1) he is a member of a protected class, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) he was replaced by someone outside the protected class, or, in the case of disparate treatment, that other similarly situated employees were treated more favorably. Bryan v. McKinsey Co., 375 F.3d 358, 360 (5th Cir. 2004); Martin v. El Nell Inc., No. 3:03-CV-2209-D, 2005 WL 2148651, at *3 (N.D. Tex. Sep. 7, 2005).
Plaintiff urges this Court to use a slightly different formulation for the prima facie case of unlawful termination, contending that the fourth prong is met if Plaintiff can show he was "otherwise discharged because of his race." (Pl.'s Resp. at 37-38.) However, the Court finds that this distinction is immaterial. The prima facie elements laid out by Bryan more clearly state the means by which a Plaintiff must prove he was discharged because of his race. Furthermore, the "prima facie method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (citations omitted). Therefore, the Court's analysis of Plaintiff's claims is the same under either formulation.
Plaintiff easily meets the first three elements: he is an African-American, there is no argument that he was not qualified for his role as Corporate Purchasing Manager, and he was terminated on August 4, 2003. As to the fourth prong, Plaintiff was replaced by Bud Raine, also an African-American. The fact that Plaintiff was replaced by someone from the same protected class does not, by itself, preclude establishment of a prima facie case. See Nieto v. L H Packing Co., 108 F.3d 621, 624 n. 7 (5th Cir. 1997). But such a showing is relevant and certainly weighs against a finding of discriminatory intent. See id. at 624; see also Grise v. Beltz Labs., Inc., No. 3:96-CV-2353-R, 1997 WL 667936, at *5 (N.D. Tex. Oct. 21, 1997); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). To meet the prima facie case, Plaintiff must show that similarly situated employees were treated more favorably than him. But in order to raise an inference of discrimination, Plaintiff must show that preferential treatment was given to similarly situated employees in "nearly identical" circumstances. Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).
Plaintiff fails to make such a showing, as he does not produce evidence of any employees who were similarly situated. Defendants have produced substantial evidence of Plaintiff's disrespectful and insubordinate behavior, much of which is undisputed in Plaintiff's response. Plaintiff admits that, less than a week after Koester was hired to be his supervisor, he questioned his qualifications and "business leadership skills in general." ( See Pl.'s Resp. at 15-16; App. Def.'s Mot. Summ. J. at 3.) Plaintiff complained that he was not included in the hiring process. (App. Def.'s Mot. Summ. J. at 6.) During his first conversation with Koester, Plaintiff admits he abruptly ended the call by hanging up on him. ( Id. at 4.) Throughout Koester's employment, Plaintiff made multiple complaints to Taszarek about the qualifications of Koester. ( Id. at 11-12.) Koester claims that Burrell refused to abide by his policy requiring weekly reports and an itinerary, and further stated that he could do his job without speaking to Koester. ( Id. at 36-37, 41.) In his affidavit, Burrell states that he kept Koester updated, but he does not claim that he ever turned in weekly reports. (App. Pl.'s Resp. at. 11-12.) Defendants further claim that Plaintiff failed to diligently work on requested projects and generally displayed a disrespectful and uncooperative attitude toward Koester, his boss. (App. Def.'s Mot. Summ. J. at 35-40, 41, 47.) Defendants claim that, after nine months of trying to facilitate a peaceful working relationship, they could no longer tolerate Plaintiff's poor attitude. Plaintiff cannot show that a white employee who acted in a similar manner would not have been likewise terminated. There is no showing that Defendants retained an employee who had similar difficulty in working with those in authority. Plaintiff fails to raise a fact issue; a reasonable jury could not conclude that Plaintiff was fired because of his race.
Even assuming a prima facie case could be met, Plaintiff cannot rebut Defendants' legitimate, non-discriminatory reason for his termination. Defendants assert that Plaintiff was fired for insubordination. Plaintiff argues his termination was race motivated, but as noted above, Plaintiff does not dispute the fact that Defendants had a reasonable basis for believing that he was insubordinate and not working well with his supervisor. Furthermore, Plaintiff is not entitled to a mixed motive analysis, as he does not submit evidence sufficient to lead a reasonable jury to find any impermissible motive in the termination. Denson v. Meadwestvaco Corp., No. 3:04-CV-337-M, 2005 WL 2179116, at *5 (N.D. Tex. Sept. 8, 2005) (quoting Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999)). Viewing the evidence as a whole, Plaintiff fails to raise a genuine issue of material fact regarding his termination.
c. Retaliation
Plaintiff further believes he was wrongly terminated based on retaliation for his previous complaints of race discrimination. To establish a prima facie case of retaliation, Plaintiff must demonstrate that: (1) he engaged in protected activity, (2) an adverse employment action occurred, and (3) a causal link exists between the protected activity and the adverse employment action. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003).
While Plaintiff contends that he made multiple complaints of racial bias, this assertion is belied by the record. Before the hiring of Koester, Plaintiff alleges that he complained of the perceived bias against him because of his role as an African-American manager. Plaintiff later gave Taszarek a copy of the book Roberts v. Texaco A True Story of Race and Corporate America and compared his situation with the treatment of Robert detailed in the book. Once Koester was hired, Plaintiff expressed his concerns regarding the bias he felt by not being promoted and for being passed over for a white male with inferior qualifications. Plaintiff further complained of Koester's attempt to tell him a racial joke and the general discomfort and intimidation Koester felt around Plaintiff. Later, Plaintiff spoke with Taszarek and compared his situation to a class action lawsuit filed against Coca Cola; Plaintiff gave Taszarek copies of articles that detailed the lawsuit.
But other than the two concrete examples of giving literature to Taszarek, Plaintiff has not shown the Court that any of his complaints were based on race. Rather, the bulk of his complaints stemmed from Plaintiff's belief that the Company hired a supervisor with inferior qualifications. From the outset, Plaintiff resented the fact that Koester had been hired instead of him. The complaints and contention between them was based on this perceived slight, not on racial animosity. It is undisputed that Plaintiff failed to turn in weekly reports as requested, was repeatedly disrespectful to his supervisor, stated he did not need to communicate with his supervisor to do his job, and personally attacked Koester rather than respond to his performance review. Defendants claim these incidents are indicative of why Burrell was fired. These events cannot be construed as protected activities under Title VII. Plaintiff's most significant claim of racial bias is Koester's attempt to tell him a racist joke. (App. Pl.'s Resp. at 48.) However, the joke was never told, and there is nothing more than Plaintiff's own belief that would suggest the joke was even racist in nature. ( See id.)
The Court assumes, however, that the two incidents of racially based complaints (giving Taszarek copies of discrimination lawsuits) may suffice to establish that Plaintiff, at some point, engaged in protected activity, meeting the first element of retaliation. See, e.g., Fierros v. Tex. Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001); Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002) (holding that complaints to a supervisor, even if informal, may be sufficient to establish protected activity). Plaintiff's termination is an adverse employment action, thus the second prong is met. But the third element is not satisfied; Plaintiff fails to show a causal link between the racial complaints and the termination. Plaintiff's complaints of racial discrimination allegedly occurred in the summer of 2002 and spring of 2003. (Pl.'s Resp. at 17.) Plaintiff's employment did not end until August of 2003. During the period between the complaints and the termination, the overwhelming evidence shows that Plaintiff was repeatedly insubordinate to Koester, and that this behavior led to his discharge. Plaintiff may believe his termination was a consequence of his complaints regarding racial bias, but his subjective belief alone is not enough to satisfy his burden. See Montgomery v. Trinity I.S.D., 809 F.2d 1058, 1062 (5th Cir. 1987).
Furthermore, Plaintiff does not state a claim for retaliation based on his response to the negative performance review. In July of 2003, Koester gave Burrell a generally negative performance review, citing several areas of his performance that could be improved. (App. Pl.'s Resp. at 163-66.) In response, Burrell failed to specifically address the identified areas of concern. ( Id. at 167-70.) Instead, he accuses Koester's evaluation of being inappropriate and unprofessional. ( Id. at 167.) Burrell further reiterates that he does not feel Koester is qualified to give him a review. But most importantly, nothing in the review or response suggests racial bias. Plaintiff does not allege racial discrimination, nor does he cite to any incidents that would suggest racially biased motives. Plaintiff's response further magnifies the problems that existed and precipitated the discharge. Burrell showed an unwillingness to submit to the authority of Koester, his supervisor, and was terminated because of this. Plaintiff does not in any way respond to the alleged shortcomings in his performance, rather, he makes personal attacks on Koester, and consequently, the Company as a whole.
In addition, Plaintiff fails to state a claim for denial of a pay raise based on retaliation. ( See Pl.'s Resp. at 35-36.) Plaintiff does not provide the Court with any evidence that Koester even knew of Plaintiff's complaints of racial bias. Koester could not retaliate against Plaintiff for making racial discrimination complaints if he was not aware of such behavior. Further, there is no evidence that a pay raise was not given based on the negative performance review.
But even if a prima facie case were shown, Plaintiff does not adduce sufficient evidence that the proffered non-discriminatory reason for his termination is a pretext for retaliation. Defendants claim Plaintiff was terminated for insubordination, satisfying their burden to articulate a legitimate, non-discriminatory reason for the discharge. Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001). As mentioned earlier, Defendants cite numerous instances of insubordinate behavior. Plaintiff does not put forth evidence that would refute these claims, and nothing in the record suggests a genuine issue of material fact that could be resolved at trial. The Court does not make credibility determinations at this stage of the analysis, however, summary judgment may be granted when Defendants show an absence of a fact issue for trial. Plaintiff's mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). Lastly, much like his claim for discriminatory discharge, Plaintiff is not entitled to a mixed motive analysis. Plaintiff fails to produce any evidence that would lead a reasonable jury to find any impermissible motive in the termination.
V. Conclusion
For the foregoing reasons, Court hereby GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiff's Motion to Strike Defendants' Summary Judgment Reply Brief Appendix, and GRANTS Defendants' Motion for Leave to File Reply Appendix.
IT IS SO ORDERED.