Opinion
CA 7:99-CV-160-R
September 25, 2001
MEMORANDUM OPINION AND ORDER
Plaintiffs Jessie Cross ("Cross"), Ida Bell Hargrove ("Hargrove"), Shelana Smith ("S. Smith"), and Christina Smith ("C. Smith") assert claims against FFP Operating Partners, L.P., a/k/a/ Driver's Travelmart, and Kathy Griffin ("Griffin") individually, alleging: (1) disparate treatment discrimination based on Plaintiffs' race, and (2) a hostile work environment, in violation of Title VII, 42 U.S.C. § 2000e, et seq and 42 U.S.C. § 1981. Defendants filed a Motion for Summary Judgment on May 12, 2000, which this Court granted on July 17, 2000. As a result of late discovery in the form of statistical data, which the Defendants did not turn over to the Plaintiffs until My 18, 2000, the Plaintiffs filed a motion on August 2, 2001, to 1) reconsider the Court's grant of summary judgment, and 2) extend discovery deadlines so the Plaintiffs could evaluate the newly proffered evidence. This Court granted the Plaintiffs' motion on August 21, 2000. Now before the Court is Defendants' Second Motion for Summary Judgment, filed May 30, 2001. For the foregoing reasons. Defendants' Second Motion for Summary Judgment is GRANTED in part and DENIED in part,
I. BACKGROUND FACTS
This case is primarily a wrongful termination case in which the Plaintiffs, all of whom are African American females, allege that they were discriminated against because of their race. All four women were employed as deli cooks at the Driver's Travelmart facility in Harrold, Texas, and were fired consecutively in early November, 1998 by the same general manager, Kathy Griffin.
A. Plaintiffs
Plaintiff Cross worked under Griffin's supervision during three separate time periods. Cross voluntarily left employment, was rehired, abandoned her job, was rehired again on April 27, 1998, and was ultimately promoted to shift leader before she was fired for theft on November 4, 1998.
Plaintiff Hargrove worked under Griffin's supervision on two separate time periods. The first time, Plaintiff Hargrove abandoned her job, then called Griffin to request to be reinstated seven months after she abandoned her position. Griffin rehired Hargrove to work in the Deli on July 1, 1998. Although the Defendants contend that Hargrove self-terminated by not showing up to work, Hargrove contends that she was terminated by Griffin on October 27, 1998 after calling in sick to work
Plaintiff C, Smith worked under Griffin's supervision during two separate time periods. Plaintiff was hired by Defendant Griffin both times. The employment period in question commenced on October 20, 1998, and ended when Smith was terminated on November 4, 1998.
Finally, Plaintiff S. Smith was hired by and worked under Defendant Griffin's supervision from August 24, 1998 through November 4, 1998, when Smith contends Griffin fired her.
B. Defendants
FFP Operating Partners, L.P. owns and operates the Driver's Travelmart at issue in Harrold, Texas. Driver's Travelmart is a 24 hour convenience store that provides groceries, fuel, and fast food to highway drivers. Driver's policy states that gives its employees the "New Employee Orientation Kit," a manual which contains Driver's policies and provides all employees with a 1-800 number to call in the event they confront discrimination or harassment in the workplace. The manual also states that then and job abandonment are grounds for immediate termination. "Job abandonment" is defined as an employee's absence without proper notification to his or her supervisor, and employees who have abandoned their jobs are considered to have voluntarily resigned.
Defendant Kathy Griffin has been employed as the General Manager of the Harrold, Texas Driver's Travelmart since November, 1997, She hired each Plaintiff who brings this action against her and Driver's Travelmart, and was aware that each Plaintiff was African American when she hired them.
C. Termination
According to the Defendants, Griffin and Assistant Store Manager Kim Wilkinson, reviewed the store's surveillance videotape after being "tipped off" by a night-shift maintenance worker that unnamed employees were stealing items from the store. When they watched the tape, they noticed that during the early morning hours of October 27, 1998, S. Smith and C.
Smith, both off-duty at the time, brought several items to the counter where Plaintiff Cross was working. After comparing the video to the register tape, Griffin determined that not all the items had been purchased. She then confronted Cross and S. Smith separately, and after considering the various versions of the event, decided to terminate Cross for theft. Griffin also planned to terminate S. Smith for theft, but both S, Smith and C. Smith never returned to work after November 3, 1998. Similarly, Hargrove failed to return to work after October 26, 1998. Thus, while Defendants agree that Cross was fired, they contend that the three employees who are party to this litigation were considered to have voluntarily resigned, and were removed from the schedule in accordance with Driver's job abandonment policy.
Plaintiffs Hargrove, C. Smith and S.Smith contend that they were fired after calling in sick to work. According to the Plaintiffs, it was Griffin's practice to simply "mark off" employees from the schedule who had been terminated, and then direct a subordinate employee to call a "Marked off" employee and inform them "not to return to work." Because factual allegations supporting or opposing a motion for summary judgment must be evaluated most favorably to the non-moving party, this Court will assume, for the purposes of resolving this motion, that all four plaintiffs were fired by Griffin on the dates indicated.
C. Statistical Analysis by Plaintiffs' Expert Witness Greg Baxter
Plaintiffs attach as Exhibit A the expert report of Greg Baxter, who analyzed the data given by the Defendants after the discovery cut-off date. As previously stated, a desire to provide the Plaintiffs with an opportunity to perform an analysis of that data was the impetus for this Court's reversal of its own summary judgment order on July 17, 2001. Evaluating the evidence in the light most favorably to the Plaintiffs, this Court here notes that the report adds little circumstantial evidence of discrimination to the Plaintiffs' case. Termination rates at the Harrold, Texas Driver's Mart facility are similar for all employee race groups, and African Americans as a group do not deviate significantly from other non-white minority groups in this regard. The only piece of data of import in the expert analysis is that no African American candidates were hired at the Harrold, Texas Driver's Travelmart for approximately one year from the time Ms. Griffin fired all African-American employees (roughly November 6, 1998) through December, 1999.
Three other African American employees were also fired from Driver's within two weeks of the date of the Plaintiffs' firing. After the Plaintiffs' firing, all of the remaining employees at Driver's were white.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, (1986); Melton v. Teachers Ins. Annuity Ass'n. of Am., 114 F.3d 557, 559 (5th Cir. 1997). An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law.See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Walker v. Sears. Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). In addition, when both parties have submitted contradictory evidence, factual controversies are resolved in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250, (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories., and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See id at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See id. at 324;Anderson, 477 U.S. at 256-57. Summary judgment will be granted "against a party who fails to make a showing sufficient 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." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these claims.See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). However, if the defendant is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may properly be granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas. 997 F.2d 62, 67 (5th Cir. 1993).
B. RACIAL DISCRIMINATION
Racial discrimination in the workplace can be evidenced by disparate treatment because of the employee's race or it may also be established by showing that there is a racially hostile work environment. Plaintiffs have claimed both to support their allegation of racial discrimination at Driver's in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
1. Disparate Treatment
A. Choice of Test
Title VII makes it illegal for an employer "to fail or refuse to hire or discharge any individual. . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A § 2000e-2(a)(1) (1994). A plaintiff can prove discrimination under Title VII by establishing a prima facie case, either by direct evidence, or indirectly through a series of shifting burdens of proof. See Williams v. Time Warner Operation Inc., 98 F.3d 179, 181 (5th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-993 (5th Cir. 1996.) Direct evidence of discrimination is rare, and as such, most Plaintiffs seeking relief under Title VII utilize the indirect method of proof first set out by the Supreme Court inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). However, in those cases where direct evidence exists, theMcDonnell-Douglas test is inapplicable. See Transworld Airlines Inc. v. Thurston, 469 U.S. 111, 121 (1985). Instead, a "mixed motives" theory of discrimination, as set out by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) applies.
Although the Plaintiffs bring their claims under both Title VII and 42 U.S.C. § 1981 (against Ms. Griffin individually), this Opinion will evaluate both causes of action under the Title VII analysis. Claims of intentional discrimination brought under Title VII and § 1981 require the same proof to establish liability. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1998);Anderson v. Douglas Lomason Co.. Inc., 26 F.3d 1277, 1284, n. 7 (5th Cir. 1994).
The important distinction between these two tests is that under PriceWaterhouse, the burden of persuasion ultimately lies with the defendant to show that the plaintiff's direct evidence of discrimination was not the impetus for any ultimate employment action suffered by the plaintiff; under McDonnell Douglas, the ultimate burden of persuasion rests with the plaintiff. "In other words, under Price Waterhouse, once a plaintiff presents direct evidence of discrimination, the burden of proof shifts to the employer to show that the same adverse employment decision would have been made regardless of the discriminatory animus. If the employer fails to carry this burden, plaintiff prevails." Mooney v. Aramco Services. 54 F.3d 1207, 1216-1217 (5th Cir.1995).
B. Plaintiffs have Established "Direct Evidence" of Griffin's Discrimination
To determine whether to utilize the McDonnell Douglas or thePrice Waterhouse framework, this Court must first examine whether a genuine question of material fact exists that a jury could find direct evidence of discrimination in this case. In addition to the facts indicated supra, Plaintiffs have also produced several affidavits that attack the character of Kathy Griffin as direct evidence of the tact that the Plaintiffs were treated differently because of their race. In order to prove that comments in the workplace provide sufficient evidence of discrimination, they must be 1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue, and 4) related to the employment decision at issue. See Krystek v. University of Southern Mississippi. 164 F.3d 251, 256 (5th Cir. 1999) (citing Brown v. CSC Login Inc., 82 F.3d 651, 655 (5th Cir. 1996). In the Fifth Circuit, the fourth prong of this test is particularly stressed; only those statements that demonstrate a discriminatory animus in the decisional process may be sufficient to constitute direct evidence of discrimination. See Moony v. Aramco, 54 F.3d 1207, 1217, n. 12 (5th Cir. 1995).
Direct evidence is "evidence which, if believed, proves the fact of discriminatory animus without inference or presumption," Brown v.. East Mississippi Electric Power Association, 989 F.2d 858 (5th Cir. 1993). In that case, the plaintiff successfully showed that his supervisor's "routine use of racial slurs constitute[d] direct evidence that racial animus was a motivating factor in the contested disciplinary decisions," Id at 861. Indeed, the Fifth Circuit could not have been clearer in the Brown case that evidence of a supervisor utilizing the word "nigger" in the course of employment is direct evidence of discriminatory intent:
"Unlike certain age-related comments which we have found too vague to constitute evidence of discrimination, the term "nigger" is a universally recognized opprobrium, stigmatizing African-Americans because of their race. That Pippin usually was circumspect in using the term in the presence of African-Americans underscores that he knew it was insulting. Nonetheless, he persisted in demeaning African-Americans by using it among whites. This is racism." (Id. at 860).
In Brown, the plaintiff's supervisor 1.) used the word "nigger" to the Plaintiff's face, 2.) repeatedly referred to Brown as a "nigger" in instances where the supervisor was aware Brown could overhear him, such as comments made over a networked, short wave radio, 3) had been previously disciplined for referring to Brown as a "nigger" by a superior, and 4) had not ceased calling Brown a "nigger" after such discipline. Furthermore, Brown overheard his supervisor threatening to "get a gun and kill that nigger" in reference to himself.
In this case, all the Plaintiffs agree that they never heard Griffin refer to any of them as a "nigger" or utilize any other racial slurs in their presence. However, Plaintiffs point the affidavits of several former Travelmart employees, who attribute the following comments to Griffin: 1) that "black people are all thugs and thieves" (Stephens Aff., App. 127); 2) "I do not like black men dating white women." (Green Aff., p. 132); 3) "all those monkeys are getting lazy" (referring to African Americans) (Watters Aff., App. p. 135); 4) "No son of mine is ever going to date a nigger" (Id.)
Griffin also "did not like the way black people talked and acted." (Stephens Aff., App. 127), called the black boyfriend of a white employee "a coon" (Green Aff., App. p. 132) instructed white employees that "if a black person applied [for a job] we were to tell them that the job was filled" (Donahoo Aff., App. p. 142) and "commonly referred to African Americans as `niggers' (Stahl Aff., App. p. 147). She also referred to Plaintiff Cross as a "stupid nigger" (Whinery Aff., App. p. 152), sent emails to the husband of a Travelmart employee referring to African Americans as "niggers and thieves," (Id) and said "no fucking niggers was going to work at her store, especially niggers from Electra," (ld.)
The Defendants attempt to distinguish the Brown case from these facts on the following grounds: 1) that in the Brown case, the individual plaintiff actually heard his supervisor refer to him as a "nigger" while here, the Plaintiffs admit they never heard this word from Griffin themselves, and 2) there is no evidence in the record that Griffin made these comments in the context of her decision to discharge the Plaintiffs. Both of these arguments are utterly meritless.
The fact that the Plaintiffs themselves never heard Griffin utter the word "nigger," yet have managed to unearth five former Travelmart employees, all of whom are white, as well as the husband of a former employee, who is white, affirm that they heard Griffin utilize racially derogatory language is sufficient evidence of Griffin's discriminatory intent. Contrary to Defendants' arguments, evidence of Kathy Griffin's racist views is highly relevant to this Court's inquiry, because the recipient of those comments has no bearing on this Court's determination of Griffin's intent in making the comments in the first place. The use of racial slurs around white subordinate employees is direct evidence of discrimination in every Circuit this Court examined. See Patterson v. P.H.P. Healthcare Corporation, 90 F.3d 927, 942 (5th Cir. 1996); See also Smith v. Leggett Wire Company, 220 F.3d 752, 759 (6th Cir. 2000); see also Ross v. Douglas County. Nebraska 243 F.3d 391, 397 (8th Cir. 2000) (stating that a supervisor's description of a terminated employee as a "black radical who would stir up other black employees" to a white employee was sufficient to serve as direct evidence).
Defendants' second argument, however, must be examined by this Court more closely, because the context in which racial slurs are utilized is relevant to determining whether or not evidence of racially derogatory language qualifies as "direct evidence." "In assessing the relevance of a discriminatory remark, we look first at the identity of the speaker. An isolated discriminatory remark, made by one with no managerial authority over challenged personnel decisions, is not considered indicative of . . . discrimination." Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998). Moreover, racially derogatory statements not made close in time to the adverse employment decision, or statements "made unrelated to the decision process itself," do not amount to direct evidence of discrimination. See Yates v. McDonnell-Douglas, 2001 WL 7670823 (8th Cir. 2001) (citingBeshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). In the Fifth Circuit, "`the plaintiff must present evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in that employer's decision.'"Mooney. 54 F.3d 1207, 1218, n. 12 (citing Radabaugh v. Zip Feed Mills, Inc.. 997 F.2d 444, 448-49 (8th Cir. 1993).
Here, there is no question that Ms. Griffin made the comments at issue, nor that she had full authority to fire the Plaintiffs, as well as complete discretion over the decision to fire the Plaintiffs. Although the Defendants argue that the Plaintiffs have produced no evidence that the comments allegedly made by Griffin have any temporal proximity to the Plaintiffs' termination, the evidence does not support the Defendants' contentions. All of the former employees who gave affidavits supporting the Plaintiffs' case worked at Travelmart in 1998. In the case of Michael Donahoo, who had two periods of employment listed, the only time period he could have overheard comments about the Plaintiffs was during the second employment period of October 1998-December 1998, because none of the Plaintiffs worked at Drivers during his first employment period of January through June, 1995. Carl Whinery's affidavit indicates that Ms. Griffin's comments that "she was tired of the niggers ripping her off" and that she would not allow "another fucking nigger to work in her store if she had anything to do with it" occurred a few weeks after Ms. Griffin hired his wife in October, 1998. This comment would have been exactly around the time the Plaintiffs were fired.
Moreover, the comments attributed to Griffin through the Plaintiffs' affidavits indicate that racial animus was directly related to the Plaintiffs' termination. Should a jury find that Ms. Griffin did say "no fucking niggers were going to work in her store, especially niggers from Electra," they could reasonably believe that the Plaintiffs' race was a significant motivating factor in their terminations. The comments attributed to Griffin through these affidavits are hardly "stray remarks in the workplace." Moreover, Griffin had the complete, unchecked authority to make the decision to fire the Plaintiffs. Taken in sum, the Plaintiffs have established that a critical question of material fact exists as to whether or not Griffin's motivation for firing them was unacceptably based on racial stereotypes.
C. Defendants Cannot Meet their Burden of Persuasion on Summary Judgment
As direct evidence of discrimination is "the fundamental prerequisite" that entitles a plaintiff to an evaluation of the summary judgment evidence under the Price Waterhouse standard, the burden of persuasion is now completely shifted to the defendant to "show that the same adverse employment decision would have been made regardless of the discriminatory animus." Sec Mooney, 54 F.3d at 1217. While the Defendants have articulated a legitimate, non discriminatory reason for Plaintiffs' terminations (theft in the case of Cross, S. Smith, and C Smith; not reporting to work in the case of Hargrove), this articulation is not sufficient for this Court to grant summary judgment under thePrice Waterhouse framework. For the Court to grant summary judgment on this claim, the Defendants must prove, by a preponderance of the evidence, that the same employment decision would have been made in the absence of the unlawful motive. See Price Waterhouse, 490 U.S. at 250; see also Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990). However, on a motion for summary judgment, all factual inferences must be evaluated most favorably to the non-moving party. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As such, it is nearly impossible for the Defendants, as the moving party, to meet this shifting burden of persuasion by a preponderance of the evidence, since all facts alleged by the Plaintiffs must be taken as true.
Although this Circuit has not articulated the specific test for evaluating a summary judgment motion under the Price Waterhouse standard, the test for establishing whether or not a plaintiff has provided sufficient evidence to defeat summary judgment under theMcDonnell-Douglas framework is instructive'. "A jury issue will be presented and a plaintiff can avoid summary judgment..if the evidence taken as a whole 1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer, and 2) creates a reasonable inference that {race} was a determinative factor in the actions of which the plaintiff complains. The employer, of course, will be entitled to summary judgment is the evidence, taken as a whole, would not allow a jury to infer that the actual reason for the discharge was discriminatory." Williams. 98 F.3d at 181 (citing Rhodes. 75 F.3d at 995).
For instance, the Fifth Circuit has determined that evidence showing that African Americans scheduled to work less desirable night shifts, or assigned menial tasks in their jobs that whites were not assigned to in similarly situated positions, is circumstantial evidence of discrimination. See Patterson. 90 F.3d at 942, Plaintiffs here have alleged these facts, and have affidavits from other employees supporting these facts. Thus, the Court must accept these facts as true, and the Defendant cannot defeated the "reasonable inference" that arises from these facts. Merely arguing that the Plaintiffs' arguments "are not true" is not sufficient to meet their burden of persuasion under Price-Waterhouse once the Plaintiffs' direct evidence has been established.
Moreover, although the Court agrees with the Defendants that Mr. Baxter's expert analysis of employment data relies on calculations of a dubious nature, his report does draw attention to the fact that no African American persons were hired at Driver's Travel Mart for the year following the Plaintiffs' termination. Statistical analysis may be considered if the plaintiff presents anecdotal evidence that the defendant's reason for termination was untrue. See Reeves v. General Food Corp., 682 F.2d 515, 523-525 (5th Cir. 1992). At this point in the case, the burden of persuasion is on the Defendants to show that the statistical evidence proffered by the Plaintiffs is not true, and African American persons were indeed hired during that year. Although the Defendants have objected vehemently to all other aspects of Mr. Baxter's report, they have not objected to this finding in particular, which bolsters the Plaintiffs' case that their terminations by Griffin were motivated largely by race.
D. The "Same-Actor" Doctrine is Not Appropriate Analysis on Summary Judgment under the Price Waterhouse Test
The Court here notes that Defendant's Motion to Strike the Expert Report of Greg Baxter has been denied separately as moot, since the Court did not consider Mr. Baxter's expert report in rendering this decision. The Plaintiffs could have elicited the fact that no African American person was hired by Driver's in the year following the Plaintiffs' termination through multiple sources, such as through Ms. Griffin or the Human Resources director of FFP; no expert or statistical analysis is required for the Court to utilize this common-sense fact All that is important for summary judgment purposes is that the Defendants have offered no evidence to contradict this fact Obviously, the Plaintiffs will be required to prove this fact more fully at trial in a more appropriate fashion, because all questions of material fact are not necessarily assumed in their favor at that stage in the litigation.
Defendants also argue that the "same actor" doctrine, first articulated by the Fifth Circuit in Brown v. CSC Logic Co., 82 F.3d 651, 658 (5th Cir. 1996) mandates a grant of summary judgment in their favor, In that case, the Fifth Circuit adopted the Fourth Circuit's decision inProud v. Stone, 945 F.2d 796, 797-798 (4th Cir. 1991) that when the same supervisory employee hires and fires a plaintiff within a short period of time, "a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer,"Id. Citing Donohue Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 1017 (1991), the Fourth Circuit explained that "claims that employer animus exists in termination but not in luring seem irrational" and that "it hardly makes sense to hire workers from a group one dislikes . . . only to fire them once they are on the job." In this case, the Defendants argue that CSC Logic is dispositive of the Plaintiffs claims because they were all hired and fired by Griffin within a six month time frame. As such, Defendants argue that attributing her termination decision to racism would be "irrational."
Both CSC Logic and Proud are ADEA discrimination cases, which are also properly considered under theMcDonnell-Douglas framework. See id. at 798
Quite simply, the Defendants' argument fails for one primary reason. Both Proud and CSC Logic contemplate the "same actor" inference solely in the context of the McDonnell-Douglas test, and instruct the district court to consider any same-actor evidence at that test's third prong, as strong evidence that the defendant's stated reason for an ultimate employment action is not pretextual. "The relevance of the fact that the employee was hired and fired by the same person within a relatively short time span comes in at the third stage of the analysis." Proud 945 F.2d at 798. Here, theMcDonnell-Douglas test is not appropriate for the reasons previously stated, and the Defendant bears the burden to show its stated reason is not pretext for discrirnination. Under Price Waterhouse. the burden is never shifted back to the Plaintiff on summary judgment, and as such, the "same actor" inference is not relevant
In CSC Logic, the Fifth Circuit specifically declined to hold that same-actor hiring and firing was automatically dispositive of a plaintiff's discrimination claim. "We do not rule out the possibility that an individual could prove a case of discrimination in a similar situation."
Although the Fifth Circuit has never specifically held that the "same-actor" inference is not applicable to Price-Waterhouse type cases where evidence of direct discrimination is present, the narrowed holding of CSC Logic, (see n. 6, supra) indicates that such a finding has a solid foundation in this circuit's jurisprudence. The backbone of both theProud and the CSC Logic decisions is the argument that absent strong evidence of irrational discriminatory bias, the courts must assume that employers act rationally, in a cost-effective manner, when making decisions about hiring and firing employees. In those cases, both Courts pointed out that the plaintiff produced no evidence that his supervisor possessed a irrationally discriminatory attitude towards elder American workers, much less vituperative, utter disdain for such workers. As such, the plaintiffs lacked evidence of irrationality that would defeat the presumption that most employers act with profit-maximizing., economic and fiscal rationality. In short, it takes time and money to hire and train workers, and the "same-actor" inference requires the district court to presume that employers are rational and will not deliberately make poor economic choices for the sole purpose of satisfying a discriminatory impulse.
However, in cases such as this, where a plaintiff produces credible evidence of blatant and obvious racist attitudes, the district court need not presume that such an employer would act independently of those attitudes, nor that economically sound actions would necessarily take precedence over irrationally racist ones. As history sadly indicates, racism is not, and never has been, an entity grounded in reason. Indeed, it is the very deep-rooted and essential nature of racist views, as well as the power they exert over individuals to act irrationally, which has enabled racism to continue to permeate the society in which we live. Under Price Waterhouse. when direct evidence of racial discrimination exists, the burden then shifts to the defendant to show that a supervisor could make a rational, non-discriminatory decision to fire African American workers, separate from the racist impulse that would lead that same supervisor to state that no "niggers" were going to work in her store anymore, especially "niggers" from the towns in which the Plaintiffs lived. At trial, the resolution of these questions will be left to the jury, who will have to make credibility determination about whether or not the Defendant made such statements, and if so, utilize their judgment about what import to attribute to those statements. On summary judgment, however, the facts must be evaluated as if a jury would find all Plaintiffs' witnesses credible, and could reasonably draw inferences from those facts that support the Plaintiffs' case. As the direct evidence of discrimination in this case does indicate that a reasonably jury could so find, and the Defendants have not met their burden of production that Griffin's racist statements played no role in her decision to terminate the Plaintiffs, the "same actor" doctrine is not terminal to the Plaintiffs' claims.
E. Conclusion
Defendants' Motion for Summary Judgment is therefore DENIED as to Plaintiffs' claim of disparate treatment,
2. Hostile Work Environment
Title VII is also violated when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive enough to alter the conditions of the victim's employment and create an abusive working environment However, stray remarks do not create a hostile environment "The mere utterance of a racial epithet is no indicia of discrimination under Title VII . . . Absent a causal link between the references and the conduct complained of, such epithets become stray remarks that cannot support a discrimination verdict." Boyd v. State Farm Insurance Companies. 458 F.3d 326, 329-30 (5th Cir. 1998).
Both Fifth Circuit and Supreme Court precedent set forth a high burden of production on a plaintiff to show that his or her hostile work environment is actionable under Title VII 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, born objectively and subjectively, to alter the terms and conditions of employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,21-22 (1993). "Courts determine whether an environment is sufficiently abusive to be actionable under Title VII by reviewing all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance." Pfeil v. Intecom Telecommunications,, 90 F. Supp. 2s 742, 749 (N.D. Tex. 2000) (citingButler, 161 F.3d at 269.) Moreover, "Title VII is intended only to prohibit and prevent conduct `that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepard v. Comptroller of Public Accounts in the State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) (citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996).
In order to establish a prima facie case of race discrimination based on a hostile work environment, an aggrieved employee must show 1) that the employee belongs to a protected group, 2) that the employee was subject to unwelcome harassment, 3) that the harassment complained of was based on race, 4) that the harassment complained of affected a term, condition, or privilege of employment, and 5) respondent superior, i.e. that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Deffenbaugh-Williams v. Wal-Mart Stores. Inc., 156 F.3d 581, 591 (5th Cir. 1998).
In those cases where no tangible employment action is taken, `"a defending employer may raise an affirmative defense to liability or damages' . . . that affirmative defense consists of two prongs, both of which the employer must fulfill: `(a) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Watts v. The Kroger Company. 170 F.3d 505, 509 (5th Cir. 1999) (citing Faragher v. City of Boca Raton. 524 U.S. 775, 118 S.Ct. 2275 (1998)).
In this case, the Plaintiffs all suffered the tangible employment action of termination, and the Defendants are not entitled to offer evidence on the Faragher affirmative defense. Moreover, all Plaintiffs belong to the protected African-American class, and have provided evidence that they suffered discrimination as a result of their race. The key question to resolving Plaintiffs' hostile work environment claim is whether or not the complained-of conduct violated a `'term, condition, or privilege" of employment Id.
"Courts determine whether an environment is sufficiently abusive to be actionable under Title VII by reviewing all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance," Pfeil v. Intecom Telecommunications,, 90 F. Supp. 2s 742, 749 (N.D. Tex. 2000) (citing Butler. 161 F.3d at 269.) Moreover, "Title VII is intended only to prohibit and prevent conduct `that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepard v. Comptroller of Public Accounts in the State of Texas. 168 F.3d 871, 874 (5th Cir. 1999) (citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). Isolated incidents, unless extremely serious, are insufficient to relay that an employer has altered the terms or conditions of one's employment. See Shepard. 168 F.3d at 874 (citing Faragher. 524 U.S. 775) (citation omitted).
In this case, Griffin's racist speech and conduct was uttered to white employees, but not to the Plaintiffs themselves. While this is valid direct evidence of disparate treatment, the fect that Griffin's slurs were not heard by the Plaintiffs eradicates their claim of hostile work environment Neither Faragher nor Burlington altered the requirement under Harris that a working environment must be both subjectively and objectively hostile, which implies a requirement that the Plaintiffs be aware of the overt racism on a daily basis while employed. Even assuming that Griffin's racist attitudes ultimately resulted in the Plaintiffs being treated differently, Plaintiffs here have failed to demonstrate that their cognitive awareness of the different treatment they received was sufficient to meet this Circuit's high standard of an "abusive working environment." While the Plaintiffs have successfully proven both Griffin's difficult personality and her failings as a manager, the working conditions they allege do not provide sufficient evidence of an intolerable work environment that overtly differentiated between employees because of their race. Plaintiffs admit that Griffin hollered at and was rude to both black and white employees alike, and did not make overt racist comments in their presence. While Driver's was an unpleasant work environment because of Griffin's ill temper, as a matter of law, it cannot be found to be a racially hostile environment. Defendants' motion for Summary Judgment is therefore GRANTED as to Plaintiffs' claim of a hostile work environment.
This Court's opposite rulings on the two different claims of the Plaintiffs are not at all inconsistent because the tests for each of the Plaintiffs' claims are vastly different. The Plaintiffs' subjective evidence that a working environment is hostile is equally as important as the objective viewpoint, and on summary judgment, the Plaintiff bears the burden of proof that they knowingly faced racial hostility on a daily basis. The comments attributed to Griffin indicate that she herself was unacceptably motivated by racial considerations and possessed a discriminatory intent; however, a hostile working environment is only created when a supervisor exhibits excessively poor judgment by making those opinions publically known to plaintiffs of a protected class. There is not a scintilla of evidence that Griffin's conduct reached this level, and this is why summary judgment is appropriate on the hostile work environment claim. As to the disparate treatment claim, however, the important factor is Griffin's intent or motivation behind the Plaintiffs' terminations, and whether it was sufficiently tinged with an unacceptable racist attitude to violate the Plaintiffs' constitutional rights. In this vein, the level of the Plaintiffs' knowledge of Griffin's views is completely irrelevant, as long as sufficient evidence exists in the record that "if [a reasonable jury] asked the employer at the moment of the decision what its reasons were [for the terminations] and if [the jury] received a truthful response, of those reasons would be the employee was [black]." Price Waterhouse, 490 U.S. at 250. Evidence exists here that creates a material fact question on this issue, and for this reason, Plaintiffs' claim must survive.
III. CONCLUSION
For the foregoing reasons, Defendants FFP Operating Partners L. P. a/k/a Driver's Travelmart and Kathy Griffin motion for Summary Judgment is GRANTED as to Plaintiffs' claim of hostile work environment, and DENIED as to Plaintiffs' claim of disparate treatment, The parties will proceed to trial on this claim only.
IT IS SO ORDERED