Opinion
No. 3:03-CV-1493-BF
March 22, 2004
MEMORANDUM OPINION AND ORDER
"Defendant's Motion for Summary Judgment," filed September 25, 2003, is before this Court. Having considered the evidence of the parties in connection with the pleadings, the Court hereby GRANTS the motion for the following reasons.
Pursuant to 28 U.S.C. § 636(c), the parties waived their right to proceed before a United States District Judge, and consented to the jurisdiction of the United States Magistrate Judge. On September 4, 2003, the District Court transferred the case to this Court.
The background information comes from Defendant's Motion for Summary Judgment and Plaintiff's Response to Defendant's Motion for Summary Judgment.
Plaintiff LaOndria R. Covington ("Covington") brings this suit against Roy's Nutrition Centers, Inc. ("Roy's") alleging race discrimination in violation of 42 U.S.C. § 1981. Specifically, Covington alleges that she was subjected to disparate treatment and a racially hostile work environment while employed at Roy's.
Covington is an African-American female who began working at Roy's as an at-will employee on June 24, 2002. (D.'s MSJ at 2; P.'s Resp. at 1). Covington alleges that during her employment at Roy's: (1) white employees were promoted ahead of her despite her greater experience and qualifications; (2) white employees were not subjected to the owner, Roy Beard's ("Beard") "lurking" while they worked as cashiers; (3) white employees were not reprimanded when they arrived late to work; (4) white employees were permitted to work overtime; (5) white employees who "malingered" or failed to complete specific tasks were not reprimanded, whereas Covington was "chastised" for even momentary pauses in work and required to finish tasks that had been assigned to the white employees; and (6) white employee Jessica Jilson missed several shifts without notice or permission and was never terminated. (P.'s Resp. at 1-3). Additionally, Covington alleges that she complained to Beard and the store manager, Tomi LaBarba ("LaBarba"), about this alleged differential treatment. (Id. at 2). Covington also alleges that Beard made several prejudicial statements toward minorities. (Id.). For example, Beard allegedly told Covington to "go help your people" (Id. at 2; P.'s App. at 2), and in response to Covington's attempt to provide Hispanic customers with product information, Beard allegedly stated that "a spick isn't going to read that stuff anyway." (P.'s App. at 2). Covington also alleges that Beard wished for an all-white staff. (P.'s Resp. at 2-3; App. at 3-4).
Roy's claims that Covington was terminated on September 22, 2002, for violating the company's "no show, no call" policy. (D.'s MSJ at 8, App. at 1-7). Roy's further contends that neither Beard nor LaBarba ever called Covington a racially derogatory name, that Covington never received any different treatment than other employees, and that Covington cannot establish a contractual relationship with Roy's. (D.'s MSJ, App. at 57-58, 61-62, Req. for Adm. Nos. 3, 8, 33). Roy's raises the following as grounds for summary judgment: (1) Covington has failed to establish that she had or could enforce a contract with Roy's; (2) Covington has failed to raise a genuine issue of material fact on her disparate treatment claim; and (3) Covington has failed to raise a genuine issue of material fact with respect to her hostile work environment claim.
LaBarba explains the policy as follows:
Sometimes, there are circumstances where an employee simply cannot attend work. For example, sometimes an employee will get ill. They may not be able to get in touch with me prior to the scheduled workday but if they call in that morning and let me know the circumstances, then it is usually an acceptable situation. It is really a matter of teamwork and communication. That is the purpose of the "no show-no call" policy.
(Tomi LaBarba Affidavit, D.'s Reply, Ex. B, ¶ 4).
It is undisputed that: (1) Roy's maintains a diverse workforce which includes Hispanics, Russian immigrants, and African-Americans (D.'s MSJ at 2-5); (2) Roy's currently employs an African-American who has worked at Roy's for over 13 years (Id. at 2); (3) Roy's currently employs an African-American who has worked at Roy's for six years (Id.); (4) Roy's previously employed an African-American Manager for almost 25 years (Id.); and (5) Roy's has terminated non-minority employees for attendance issues. (Id.). It is also undisputed that Covington never complained to Roy's in writing about race discrimination or bias during her employment with Roy's. (D.'s MSJ at 3, App. pp. 56-57, Nos. 1, 4). Furthermore, Covington admits: (1) that no Roy's supervisor ever called her a racially offensive name (D.'s MSJ at 5); (2) that she does not have any documents to show that similarly situated white employees at Roy's were treated more favorably in their job conditions (Id.); and (3) that she does not have any first-hand knowledge of the circumstances surrounding Jessica Jilson ever missing work, and that her allegations were based solely on hearsay. (D.'s Reply, Ex. A, Cov. Dep., 51:22-52:3).
II. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and the record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). An issue of material fact is genuine if the evidence could lead a reasonable jury to find for the non-moving party. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996 (5th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the non-movant. Anderson, 477 U.S. at 248.
The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P. 56(c)). If the non-movant bears the burden of proof at trial, the movant need not support the motion with evidence negating the opponent's case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990); Little, 37 F.3d at 1075.
Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 325). This burden is not satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. Id. Rather, the non-moving party must come forward with competent summary judgment evidence showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e).
III. Summary Judgment Evidence
A. Roy's Nutrition Centers, Inc.
The original appendix submitted by Roy's in support of the motion for summary judgment consists of: (1) true and correct copies of portions of Covington's deposition transcript (App. pp. 9-55); (2) excerpts from Covington's Responses to Roy's Requests for Admissions (App. pp. 56-66); (3) affidavits of Wanda Beard (App. pp. 1-3), Tomi LaBarba (App. pp. 4-8), Johnathon S. Christenson (App. pp. 67-69), Lydia Coronado (App. pp. 70-73), Tatyana Gaponenko (App. pp. 76-78), Cynthia L. Helm (App. pp. 79-80), Johnnie Lucas (App. 81-85), Lesleigh Shaw (App. pp. 86-90), Deborah Stevenson (App. pp. 91-95), and Jessica Jilson (App. pp. 96-98); (4) Covington's EEOC Charge (App. pp. 99); (5) Roy's Position Statement (App. pp. 100-127); and (6) the EEOC Determination (App. 128). Roy's filed a Reply to Covington's Response to Summary Judgment which included: (1) additional excerpts from Covington's deposition (Exhibit A); (2) a Second Affidavit of Tomi LaBarba (Exhibit B); and (3) photocopies of work schedules for the weeks of September 15-20, 2002, and September 22-27, 2002 (Exhibits B1 B2, respectively).
B. LaOndria R. Covington
Covington's appendix contains her affidavit. (P.'s App. pp. 2-6).
IV. 42 U.S.C. § 1981
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981 (a) (2004).
"Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996).
In order to establish a claim under Section 1981, a plaintiff must allege facts in support of these elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the part of the defendant; and (3) the discrimination concerns one or more of the enumerated activities in the statute, such as the right to "make and enforce contracts." Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994). Here, Covington satisfies the first element because she is African-American. With regard to the second element, intent may be inferred if Covington is able to satisfy her prime facie burden of proof. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Finally, Covington has satisfied the third element because the discrimination concerns her ability to make and enforce an employment contract. Although Roy's argues that Covington had no employment contract, "at-will employees in Texas have an employment contract with their employers, simply one which may be terminated at will." Byers v. Dallas Morning News, 209 F.3d 419, 425 (5th Cir. 2000) (citing Paniagua v. City of Galeveston, Texas, 995 F.2d 1310, 1313 (5th Cir. 1993)); see also Fadeyi v. Planned Parenthood Ass `n of Lubbock, Inc., 160 F.3d 1048, 1050 (5th Cir. 1998) ("To hold that at-will employees have no right of action under § 1981 would effectively eviscerate the very protection that Congress expressly intended to install for minority employees, especially those who, by virtue of working for small businesses, are not protected by Title VII.").
A. Burden-Shifting Analysis
To survive summary judgment, and thus raise a genuine issue of material fact that Roy's discriminated against her, Covington must first satisfy the burden-shifting test set forth by the Supreme Court in McDonnell Douglas. 411 U.S. at 802-04. Under the McDonnell Douglas framework, the initial burden of proof rests on the plaintiff, who must establish a prime facie case of discrimination. Id. at 802. Once the plaintiff's initial burden is satisfied, the burden then shifts to the defendant employer to produce evidence that there exists a legitimate, non-discriminatory reason for its decision. Id. at 802-03; Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000). If the employer satisfies its burden of production, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the stated reason is a pretext. McDonnell Douglas, 411 U.S. at 804; Russell, 235 F.3d at 222.
The elements needed to establish aprima facie case for both "disparate treatment" and "hostile work environment" are listed infra, § IV-B C.
"A defendant meets this burden by proffering admissible evidence of an explanation that would be legally sufficient to justify a judgment for the defendant." Lowery v. Univ. of Houston, 82 F. Supp.2d 689, 696 (S.D. Tex. 2000) (citing Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir. 1991)).
"Speculation and belief are insufficient to create a fact issue as to pretext, and pretext cannot be established by mere conclusory statements of a plaintiff who feels that she has been discriminated against." Lowery, 82 F. Supp.2d at 696 (citing E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984) and Britt v. Grocers Supply Co., 978 F.2d 1441, 1451 (5th Cir. 1992)).
B. Disparate Treatment
To satisfy her initial burden for an intentional disparate treatment claim, Covington must prove the following elements to make a prime facie case: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) she was treated less favorably than employees outside of her protected class. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (citing Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 404 (5th Cir. 1999)).
Here, Covington has satisfied the first three elements of her prime facie case: she is African-American; she was qualified for her position; and she was fired. Thus, the analysis will focus on the fourth element — whether Covington was treated less favorably than employees outside of her protected class. Here, Covington alleges disparate treatment both during her employment and at the time of her termination.
1. Disparate Treatment During Employment
Covington states in her affidavit that she was not allowed to work the cash register, that white employees were promoted ahead of blacks, that white employees were allowed to "loaf and work overtime, and that white employees were not reprimanded for failing to complete tasks. (P.'s App. at pp. 2-7). However, contrary to her affidavit, Covington admitted in her deposition that minorities did work the cash register, and that she was allowed to work the cash register. (D. `s MSJ, App. pp. 21, 45). Furthermore, Roy's policy required employees to work in areas assigned by the manager. (Id. at 53).
With respect to being passed over for a promotion, Covington states that she was more qualified for promotion than other white employees. (Id. at 12-14). In her deposition, however, Covington could not identify what qualifications were necessary for being promoted to vitamins manager. (Id. at 36). "To establish a fact question as to relative qualifications, a plaintiff must provide sufficiently specific reasons for his opinion; mere subjective speculation will not suffice." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996). Additionally, Covington could not substantiate her allegations that white employees at Roy's were permitted to "loaf and work overtime, and that white employees were not reprimanded for failing to complete tasks. (Id. at 36-37).
Examining the evidence in a light most favorable to Covington, the Court concludes that the evidence presented is insufficient to survive summary judgment. Moreover, Covington attempted to create an issue of fact by giving contradicting statements in her deposition and affidavit. However, a non-movant may not "manufacture a dispute of fact merely to defeat a motion for summary judgment." Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).
2. Disparate Treatment at Termination
With respect to her disparate treatment at termination claim, Covington alleges that she had requested leave for Sunday, September 22, 2002. (P.'s App. p. 5). According to Covington, following a discussion with LaBarba and Jessica Jilson, her request was approved. (Id. at 6). Covington alleges that she left with the understanding that she would have Sunday off and her next work day would be Monday. (Id.). On Sunday, September 22, 2002, Covington alleges that she stayed home and studied for a test. (Id. at 6). LaBarba terminated Covington when she failed to appear or call on Sunday, September 22, 2002. However, LaBarba states that Covington "was specifically told she could not take off the Sunday in question (September 22, 2002)." (D. `s Reply, Ex. B, ¶ 5). Covington further alleges that Jessica Jilson previously missed work and was merely suspended, whereas Covington was terminated for missing one shift. (P.'s App. p. 5). However, in her deposition testimony, Covington admitted that she did not have knowledge of all the facts surrounding Jessica Jilson's situation. (D.'s MSJ, App. p. 29). Such self-contradicting evidence does not create an issue of material fact for trial. See Williams v. Simmons Co., 185 F. Supp.2d 665, 680 (N.D. Tex. 2001) ("These assertions are to be given no weight, for they contradict Plaintiffs' earlier depositions, serving only as sham affidavits to stave off summary judgment."). Moreover, there is undisputed evidence that Covington and Jessica Jilson were not similarly situated employees. Although Jessica Jilson missed work on several occasions, LaBarba stated that Jessica Jilson "always called in and had a legitimate excuse." (D.'s Reply, Ex. B, ¶ 5). Unlike Covington, Jessica Jilson never violated the "no show, no call" policy at Roy's.
LaBarba describes the different circumstances surrounding both Covington and Jessica Jilson as follows:
Jessica was sick on a few occasions but always called in and had a legitimate excuse. Also, her Mother was suffering from breast cancer and she had to take an unpaid week of leave to be with her at one time. She did not have a one week vacation as Plaintiff alleged. Finally, Jessica had a track record of reliability. [Covington] on the other hand was a relatively new employee that was still in her probation period. Jessica never once did what Anne did. Anne was specifically told she could not take off the Sunday in question (September 22, 2002). After being informed of my decision, she was totally insubordinate and said she would not be there. I told her that if she was not there she would not have a job. On Sunday, September 22, 2002, Anne did not show or call in at all, much less offer a reasonable excuse. Thus, Anne and Jessica had completely different situations that warranted completely different treatment.
(D.'s Reply, Ex. B, ¶ 5) (emphasis added).
Furthermore, assuming arguendo that Covington was treated less favorably than employees outside of her protected class, Roy's has provided a non-discriminatory reason for her termination — violation of the "no show, no call" policy. The burden then shifts back to Covington to establish that the proffered reason was a pretext for discrimination. Here, Covington has not met her burden because she has failed to produce "sufficient evidence to create a material issue of disputed fact as to whether [Roy's] explanation was false." Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir. 2001). There are "unusual circumstances that would prevent a rational fact-finder from concluding that [Roy's] reasons for failing to promote her were discriminatory and in violation of [§ 1981]." Id. (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)). Specifically, there is "abundant and uncontroverted independent evidence that no discrimination had occurred." Blow, 236 F.3d at 298 n. 3 (quoting Reeves, 530 U.S. at 148).
It is relatively easy both for a plaintiff to establish a prima facie case and for a defendant to articulate a legitimate, non-discriminatory reason for his decision. ". . . In the context of summary judgment. . ., the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext.Britt, 978 F.2d at 1450 (quoting Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 811 (5th Cir. 1991) and citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-56 (1981)).
Here, Roy's submitted a copy of the work schedule, which verifies that Covington was scheduled to work on Sunday, September 22, 2002, from 9:00 — 5:30. (D.'s Reply, Ex. B2). Roy's also submitted the affidavits of numerous past and present employees, each stating that they have never witnessed any discriminatory actions, comments or treatment by the owners or managers of Roy's. (D.'s MSJ, App. pp. 2, 5, 57, 72, 74, 79, 81, 84, 90, 91, 94, 97). Examining the evidence in a light most favorable to Covington, the Court concludes that there is no genuine issue of material fact with respect to Covington's termination. Therefore, the evidence submitted by Covington is insufficient to survive summary judgment on her disparate treatment claim.
C. Hostile Work Environment
To establish aprima facie case for a hostile work environment claim, a plaintiff must prove that: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of her employment; and (5) the employer knew or should have known about the harassment and failed to take prompt remedial action. Celestine v. Petroleos de Venezuela, S.A., 266 F.3d 343, 353 (5th Cir. 2001). "When the plaintiff is a member of a protected class, in order to find a hostile work environment the employer's conduct must be sufficiently severe and pervasive, both objectively and subjectively, to alter the terms and conditions of employment." Taylor v. United Reg'l Health Care Sys., 7:00-CV-145-R, 2001 U.S. Dist. LEXIS 12327, *20 (N.D. Tex. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).
However, the Supreme Court has held that where the harassment is allegedly committed by a supervisor with direct authority over the victim, the plaintiff employee need only establish the first four elements. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
In determining whether an environment is sufficiently abusive to be actionable under § 1981, the fact-finder must also consider all of the relevant circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. "Incidental or occasional [racial] comments, discourtesy, rudeness, or isolated incidents (unless extremely serious) are not discriminatory changes in the terms and conditions of a worker's employment." Pfeilv. Intecom Telecomms., 90 F. Supp.2d 742, 749 (N.D. Tex. 2000); see also Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must be `more than a few isolated incidents of racial enmity,'. . . meaning that `instead of sporadic racist slurs, there must be a steady barrage of opprobrious racial comments.'"). "Mere utterance of an . . . epithet which engenders offensive feelings in an employee" is insufficient to alter the conditions of one's employment and create an abusive working environment. Harris, 510 U.S. at 21.
Here, Covington is a member of a protected class, and she alleges that she was subjected to unwelcome harassment because of her race. Specifically, Covington alleges that Beard made three derogatory comments. First, Beard allegedly told Covington to "go help your people." The second instance occurred when Covington was helping a Hispanic customer with a purchase. Although printed instructions were necessary, Covington alleges that Beard did not provide them, stating that "a spick isn't going to read that stuff anyway." (P.'s App. at 3). Finally, Covington alleges that Beard commented that he would prefer an all-white staff. (Id. at 4). However, assuming that Covington was subjected to unwelcome harassment because of her race, Covington has failed to submit competent summary judgment evidence demonstrating how the environment at Roy's affected a term, condition or privilege of her employment.
The three statements were not directed toward Covington.
Here, even assuming that Roy's made these three statements over a span of three months, these were merely isolated incidents, and therefore fail to demonstrate a steady barrage of opprobrious racial comments. Moreover, Covington has failed to present any evidence that these comments were severe or pervasive, or physically threatening or humiliating. There is also no evidence in the record that Covington suffered any psychological damage or that her work performance suffered in any fashion. Roy's, however, submitted the affidavits of numerous employees, both past and present, stating that they have never witnessed any discriminatory actions, comments or treatment by the owners or managers of Roy's. (D.'s MSJ, App. pp. 2, 5, 57, 72, 74, 79, 81, 84, 90, 91, 94, 97). Therefore, the evidence submitted by Covington is insufficient to survive summary judgment on her hostile work environment claim.
V. Conclusion
After reviewing the record, the Court concludes that Covington has failed to sustain her burden of proof with respect to her Section 1981 claims. Covington cannot satisfy her summary judgment burden by mere conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 325). Additionally, Covington cannot "manufacture a dispute of fact merely to defeat a motion for summary judgment." Doe, 220 F.3d at 386. Therefore, Roy's is entitled to judgment as a matter of law. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED, and the case is DISMISSED with prejudice.