Opinion
CIVIL ACTION NO: 02-1592, SECTION: "K"(1)
November 14, 2003
ORDER AND REASONS
The parties consented to proceed before a magistrate judge. Rec. doc. 6. The defendant, SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("Glaxo"), filed a motion for summary judgment. Rec. doc. 36. The plaintiff, Cordia Francis ("Francis"), alleges that during her employment with Glaxo she was subjected to racial discrimination when: (1) similarly situated Caucasian females were allowed to fly within their sales territories but she was required to drive a car; (2) she was reclassified by Glaxo and her pay grade was reduced; and (3) she was terminated from employment. Rec. doc. 1. Glaxo denies the allegations contending that: (1) Francis' claims of racial discrimination during her employment are without merit and are prescribed; and (2) she was terminated for legitimate business related and non-discriminatory reasons, namely falsification of company records and failure to comply with company policies. Rec. doc. 2. The parties submitted memoranda on Glaxo's motion for summary judgment. Rec. docs. 40, 41, 43, 44 and 46. For the reasons described below, Glaxo's motion for summary judgment is granted.
Summary Judgment Standard
Fed.R.Civ.P. 56 provides in pertinent part that summary judgment will be granted when ". . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986); Lilian v. National Wildlife Federation. 110 S.Ct. 3177, 3189(1990). To that end, the court must "view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. Wyatt v. Hunt Plywood, 297 F.3d 405, 409 (5th Cir. 2002). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356(1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).
Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case. Celotex, 106 S.Ct. at 2553;see Lujan, 110 S.Ct. at 3187. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 106 S.Ct. at 2553-54. A dispute over a material fact is genuine, if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Kee v. City of Rowlett Texas, 247 F.3d 206, 210 (5th Cir. 2001).
This burden is not satisfied with "some metaphysical doubt as to the material facts," Matsushita. 106 S.Ct. at 1356, by "conclusory allegations,"Lujan. 110 S. Ct, at 3180, by "unsubstantiated assertions,"Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by only a "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). The court resolves factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. The court does not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Lujan, 110 S.Ct. at 3188. Summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993). If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted. See Evans v. City of Bishop, 238 F.3d 586, 588-89 (5th Cir. 2000).
In Fierros v. Texas Dept. of Health. 274 F.3d 187 (5th Cir. 2001), the Fifth Circuit cautioned that summary judgment is not favored in claims of employment discrimination and that the Supreme Court inReeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000), emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge. Fierros, 274 F.2d at 190-91.
Background Facts
Ms. Francis was hired by Glaxo on June 29, 1998 as a "Senior Executive Sales Representative" at salary grade F5, $62,500. Rec. doc. 36, exhibit A. Ms. Francis signed the job offer acknowledging her salary grade and starting salary. Id. That position is higher in rank than an "Executive Sales Representative," although both positions offer compensation in the F5 salary grade. Rec. doc. 36, exhibit B. In 2001, plaintiffs supervisor, District Manager Scott McSwain, discovered discrepancies in Ms. Francis' call reporting and expense reporting which prompted an investigation by Glaxo. McSwain depo., pp. 19-25; Rec. doc. 36, exhibit E. On June 22, 2001, Glaxo's Compliance Manager, Lathell Thomas, summarized Glaxo's findings. Rec. doc. 36, exhibit D, exhibit 4 to depo. of Francis. Ms. Francis signed the memorandum acknowledging submission of $2,297.44 in expense claims which had not been incurred, although she stated it was a mistake and not intentional. Id. On June 26, 2001, Francis was terminated by McSwain for falsification of expense reports. Rec. doc. 36, exhibit F.
Travel Claim
Francis alleges that during her employment with Glaxo she was treated in a disparate manner based on her race. Plaintiff alleges that "Buffy Stewart and Maureen Turner, Caucasian females, were allowed to fly within their territories while plaintiff was denied that privilege, and plaintiff was ordered to drive to her appointments." Rec. doc. 1 at p. 3. In Ramirez v. City of San Antonio. 312 F.3d 178 (5th Cir. 2002), the Fifth Circuit stated that "the limitations period on an employment discrimination claim begins to run from the time the complainant knows or reasonably should have known that the challenged act has occurred." Id. at 182. Glaxo contends that the limitations period began to run when Francis confronted her new manager with the travel issue in September, 2000. Rec. doc. 36, exhibit D, depo. of Francis at p. 66. Francis argues that it was not until November, 2000, after a meeting with her supervisor, that it was clear she would not be permitted to fly within her territory, even though similarly situated Caucasian females were flying in their territories. But what Francis ignores is that a claim for discrimination accrues when a person knows of the disparate treatment — not when the person is told that the disparity will not be corrected. The trigger is the date on which the discriminatory act occurs. Merrill v. Southern Methodist University, 806 F.2d 600, 604 (5th Cir. 1986). In this case, Scott McSwain took over supervision of Ms. Francis and Ms. Turner from the previous District Manager, Jim Gueno, in August, 2000. Rec. doc. 36, exhibit E at p. 8. Mr. McSwain testified that the only two HIV sales representatives in Louisiana were Ms. Francis and Ms. Turner.Id. at p. 7. He further testified that when he replaced Mr. Gueno it was established that Ms. Turner flew in her territory and Ms. Francis did not. Id. at p. 43.
The parties agree that Francis' charge with the EEOC was filed timely with respect to any discriminatory act that occurred after October 7, 2000. Rec. docs. 36 at p. 9 and 40 at p. 9.
She also alleges in her complaint that Maureen Turner, a Caucasian Senior Executive Sales Representative, had less experience than she did. Francis offers no evidence in support of her contention that Turner received more favorable treatment and does not address the issue in her opposition memoranda to Glaxo's motion for summary judgment.
Francis describes her claim for disparate treatment as follows:
[S]he was precluded from engaging in travel by air within her sales territory, even when her colleagues were permitted to travel by air to cover smaller territories. [Defendant] . . . sometimes alleged the reason for this was economical and sometimes they alleged it was something pre-established. The truth is that the only fact at hand is that Ms. Francis was the only African American sales representative in the area and the only person not permitted to fly.
Rec. doc. 40 at p. 11-12. This statement by Francis demonstrates that she knew or had reason to believe that she was a victim of discrimination when she first learned that similarly situated Caucasian females were permitted to fly instead of drive. Francis' deposition and McSwain's testimony reveal that she was aware of the alleged disparity by no later than September, 2000 if not considerably earlier. Rec. doc. 36, exhibit D at p. 66. Accordingly, plaintiffs claim of disparate treatment with respect to the travel issue is prescribed.
Francis also contends that disparate treatment is demonstrated by the fact that after she was hired by Glaxo, all of the prison accounts were assigned to her and her Caucasian co-workers were relieved of responsibility for these accounts. Rec. doc. 40 at p. 12. Francis also alleges that she was denied the requisite training to enable her to properly complete the expense forms. Rec. doc. 40 at p. 13. These allegations were not made in her charge to the EEOC. Rec. doc. 44, exhibit 3. In National Association of Government Employees v. City Public Service Board of San Antonio, Texas, 40 F.3d 698 (5th Cir. 1994), the Fifth Circuit stated that "[t]he suit filed may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable EEOC investigation of that charge. Id. at 712. Francis' additional allegations of disparate treatment are not properly before the court.
Reclassification Claim
Francis contends that, in retaliation for her complaints about disparate treatment, Glaxo reclassified her as a Senior Sales Representative and reduced her pay grade. On June 29, 1998, Glaxo offered employment to Francis as "Senior Executive Sales Representative" at a salary grade of F5, at 562,500. Rec. doc. 36, exhibit A. Glaxo contends that the reference to "Senior Executive Sales Representative" was an error because its policy required documentation of superior job performance for the preceding two years in order to be hired at that position and Francis did not submit such documentation. Glaxo contends that Francis' title should have been "Executive Sales Representative." Rec. doc. 36, p. 8. Francis counters that she submitted the required documentation and was entitled to the senior position. Rec. doc. 40, p. 12. Whether Francis submitted the documentation is an issue of fact. For purposes of this motion it is assumed that she produced the documentation. Francis' salary history reveals that she was compensated at the following levels:07/22/1998 562,500.00
04/01/1999 565,000.00
04/01/2000 568,200.00
06/01/2001 569,564.00
Rec. doc. 36, exhibit C.
Glaxo contends that in May, 2001 it discovered the alleged error in title and assigned Francis the "Executive Sales Representative" title but she remained at grade F5 and her salary was not reduced. As shown above, her annual compensation was increased on June 1, 2001. Glaxo contends that the change in title does not rise to the level of an ultimate employment decision. In the alternative, it contends that the claim is prescribed.
Francis contends that she should have been hired at the F6 grade. She argues that Glaxo's action in May, 2001 did not merely change her title, but it also reduced her grade from F6 to F5. This argument has no merit. Francis was never employed by Glaxo at the F6 level. Glaxo made Francis a written offer of employment at the F5 salary grade. Francis accepted this offer. She was employed at the F5 salary grade throughout her tenure. Within the F5 salary grade her annual compensation was increased on three occasions with the last increase occurring after the word "Senior" was dropped from her title. Francis also contends the change in title was a demotion defacto. She does not, however, point to any changes in pay or duties to support that conclusory claim.
In a Title VII retaliation claim a plaintiff must prove that: (1) she engaged in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action.Zaffuto v. City of Hammond, 308 F.3d 485, 492 (5th Cir. 2002). In Zaffuto the Fifth Circuit held that in order to be actionable, "[i]t requires that an adverse employment action be an ultimate employment decision such as hiring, granting leave, discharging, promoting or compensating." Id. at 492; see Hernandez v. Crawford Building Material Company, 321 F.3d 528, 531-32 (5th Cir. 2003) (an employer's filing of a counterclaim cannot support a retaliation claim). In Fierros v. Texas Department of Health, 274 F.3d 187 (5th Cir. 2001), the Fifth Circuit held that the failure of the plaintiff to receive a merit pay increase of $684 on an annual salary of $20,924.97 was not de minimis and the denial of a pay increase can be an ultimate employment decision. Id. at 194. The change in Francis' job title from Senior Executive Sales Representative to Executive Sales Representative with no change in her employment grade salary or job duties was not an ultimate employment decision. There is no need to consider whether the retaliation claim is prescribed.
Termination Claim
Pursuant to Title VII, it is unlawful for an employer to discharge any individual because of the person's race. 42 U.S.C. § 2000e-2(a). Francis concedes that there is no direct evidence of discrimination based on race. In the absence of such evidence, the court must apply the basic framework described in McDonnell Douglas Corp. v. Green. 93 S.Ct. 1817, 1824-25 (1973). The first step in that framework is that the plaintiff must establish a prima facie case of discrimination.Id. In Singh v. Shoney's, Inc., 64 F.3d 217 (5th Cir. 1995), the Fifth Circuit stated:
In order to make out a prima facie case of discrimination a plaintiff alleging discriminatory discharge must show (1) that she is a member of a protected group; (2) that she was qualified for the job that she formerly held; (4) that she was discharged; and (4) that after her discharge, the position she held was filled by someone not within her protected class.Id. at 219. Glaxo concedes that the first three elements are present. It contends the fourth element is not because it replaced Francis with an African-American male. Francis cites Nieto v. L H Packing Co., 108 F.3d 621 (1997), and contends that the fourth element is not required for a prima facie case of discrimination.
In Nieto the district court granted defendant's motion for summary judgment finding that the plaintiff failed to establish a prima facie case of discrimination because the plaintiffs position was immediately filled by a member of a protected class. The Fifth Circuit declined to strictly apply the burden-shifting framework inMcDonnell Douglas. Instead, it proceeded to the ultimate question of whether the plaintiff established a fact issue that national origin was a motivating factor in plaintiffs termination. Id. at 623, n. 5. It found that while the fact that the plaintiff was replaced by a person in a protected class was not outcome determinative, it was "certainly material to the question of discriminatory intent."Id. at 624. The Fifth Circuit held that the plaintiff did not present competent summary judgment evidence that his national origin was a motivating factor in the decision to terminate him and affirmed the district court. Id. However, the court cited precedent which "explicitly recognized that the single fact that a plaintiff is replaced by someone within the protected class does not negate the possibility that the discharge was motivated by discriminatory reasons."Id. at 624, n. 7 (quotation marks and brackets omitted).
In Byers v. Dallas Morning News. Inc., 209 F.3d 419 (5th Cir. 2000), the defendant filed a motion for summary judgment and contended that the plaintiff could not establish a prima facie case because he was not replaced by someone outside the protected class. 209 F.3d 426. While the defendant argued that Singh controlled, the plaintiff relied on Nieto. In Byers, the Fifth Circuit held that the plaintiff failed to establish a prima facie case of race discrimination and that it was not necessary to proceed to the second and third prongs of the analysis under theMcDonnell Douglas framework. Id. at 427. The Fifth Circuit found that the plaintiff failed to offer any evidence other than her subjective belief that she was terminated because of her sex. The plaintiff produced no direct evidence of discriminatory intent,id., and also failed to produce sufficient evidence indirectly demonstrating discriminatory intent, such as evidence of disparate treatment with respect to similarly situated non-white employees.Id. at 427, n. 3. The Fifth Circuit stated:
Byers's argument also fails because he stretches the Nieto holding too far. In . . . Nieto, this Court cautions-district courts against applying the four-part, prima facie case test too mechanically: [w]hile the fact that one's replacement is of another national origin may help to raise an inference of discrimination, it is neither a sufficient nor a necessary condition. The Nieto opinion appears to allow courts to find a prima facie case even where an employee has been replaced by someone of the same race. However, Byers incorrectly expands this holding into a presumption that replacement by someone within one's protected class is irrelevant. As this court stated in Nieto, [w]hile not outcome determinative, this fact is certainly material to the question of discriminatory intent.209 F.3d at 427. Byers and Nieto instruct that: (1) the plaintiffs subjective belief that she was terminated because of her race is insufficient to establish a prima facie case; (2) if the plaintiff fails to establish the fourth element, the court may not mechanically apply the test to grant defendant's motion for summary judgment; (3) the plaintiffs failure to establish the fourth element is material to whether the plaintiff established discriminatory intent; and (4) if the fourth element is not present, the plaintiffs prima facie case must include evidence of discriminatory intent, for example evidence of disparate treatment with respect to similarly situated employees. As Francis was replaced by an African American, a member of the protected class, she must present evidence of discriminatory intent in order to establish a prima facie case.
In Rios v. Rossitti. 252 F.3d 375 (5th Cir. 2001), the Fifth Circuit held that in order to establish a prima facie case of discrimination based on race or national origin, "a plaintiff must usually show" all four elements. Id. at 378. In Meeson v. Board of Regents of Texas Southern University, (Not reported in F.3d) (2003 WL 22391313 (5th Cir. October 20, 2003)), the Fifth Circuit cited Rios and stated that all four elements were required for a prima facie case. It affirmed the district court's decision granting defendant's motion for summary judgment for failure to present a prima facie case Id. at *2.
Francis contends that Glaxo's action in replacing her with a person from the protected class actually demonstrates discriminatory intent. She reaches this novel conclusion by urging that Glaxo's decision to hire an African-American was done solely in an attempt to avoid liability. Rec. doc. 40 at p. 4. Francis cites no authority for this proposition. Its acceptance would be contrary to both Nieto andByers.
Glaxo contends that Francis was terminated for falsification of company records pertaining to sales calls and expenses and failure to comply with company policies. She responds that she was a victim of disparate treatment:
The plain fact is that a Caucasian employee Maureen Turner submitted expense reports with duplicate receipts and Scott McSwain allowed her to correct the error and, when Ms. Francis, an African-American employee made the same error, Mr. McSwain labeled her as a thief.
Rec. doc, 47 at p. 7. She cites no other instance of disparate treatment with respect to Glaxo's contention that she was terminated for falsification of company records and failure to comply with company policies.
Francis does not contend that Turner or any other Caucasian employee was permitted to falsify their sales call reports.
Francis also argues that: (1) her expense account and call report problems were insignificant and mistakes (Rec. doc. 40 at p. 6-7); (2) Glaxo improperly described the submission of duplicate expenses records as falsification of the expense records (Rec. doc. 13 at p. 4); and (3) she was not properly trained on the procedures for the preparation and submission of expense account and call reports (Rec. doc. 40 at p. 13). None of these, however, purport to demonstrate disparate treatment.
Glaxo cites four separate instances in January and March, 2001, in which Francis used the same receipt in support of two different expenditures. On January 30, 2001, there was a customer focus event at a restaurant where charges of $226.65 were incurred on an American Express account. The receipt was submitted with expense report number 2QV030. On March 31, 2001, a copy of this same American Express receipt was submitted for a luncheon with Dr. Brimah. Of course, the same receipt cannot support two different expense items two months apart and with different persons. On January 31, 2001, Francis held a customer focus event for $311.61. The same receipt was used to support a later luncheon with Dr. Brimah. On February 22, 2001, there was lunch at a restaurant which was charged to American Express for which Francis claimed reimbursement for Dr. Amzeh and his staff. The same receipt was also used to support reimbursement for a luncheon with Dr. A. J. Johnson. On March 7, 2001, there was an American Express charge at a restaurant for $784.18. This receipt was also used by Francis on two occasions: first, it was used to support a request for reimbursement for a dinner with three doctors; and second, it was used to support a dinner with three other doctors on a later date. On the second occasion Francis increased the amount to be reimbursed from $784.18 to $1,784.18. Rec. doc. 40, exhibit C.
The incidents cited by Francis regarding Turner's expense reports do not demonstrate disparate treatment. On at least four occasions Francis submitted a receipt in support of a request for reimbursement when she had used that receipt on a prior expense report for a different function. On each occasion the description of the event was different than the description associated with the original submission of the receipt. On one of those occasions Francis increased the amount of the charge by $1,000.00. At no time did Francis call attention to these "discrepancies" or attempt to correct them. The inference is that Francis intentionally falsified her expense reports. Francis has not cited one instance where Turner's conduct mirrored hers.
Those instances are as follows: Turner completed expense report number 15 W02F, dated November 12, 1999, for reimbursement of $2,895.96. Within the category of auto expenses, Turner included two identical charges that were described as "11/09/1999 Gas for Rental Car 11.04." A single receipt for the purchase of gasoline in Shreveport for S11.04 on November 9, 1999 was attached to the expense report. There is an expense report correction memo prepared by James Gueno notifying Turner that she was to adjust the duplicate charge on her next report. Rec. doc. 46, Exhibit A.
Francis cites Turner's expense report number 15W04B, dated January 8, 2001. Within the category of entertainment expenses. Turner included two identical charges for $62.57 for a lunch on January 5, 2001 with John Fuchs, a pharmacist, where HIV Products were discussed. Attached to the expense report is a single receipt for lunch at Copeland's in Monroe, Louisiana for the lunch with Fuchs. Immediately after the second entry is an asterisk. Below that appears, "Duplicate * This amount taken off of Report Ending 1-13-01." Turner's initials follow that notation. Expense report number 15W04C, dated January 16, 2001, reflects a correction in the amount of S62.57 which reduced the amount to be reimbursed. Rec. doc. 46, Exhibit A. Each of Turner's expense reports that were submitted by Francis contain provision for corrections. Only one other expense report, number 15 W02P, reflects that a correction was made, he amount of the correction was $11.04. Id. Francis also cites the presence of addendums to some of Turner's reports. Turner's expense reports are exhibit A to rec. doc. 46.
Francis has not established a prima facie case of racial discrimination in her termination claim. She has not produced direct evidence of discrimination. She was not replaced by someone outside of the protected class. She has not presented sufficient evidence of disparate treatment with respect to similarly situated Caucasian employees. In effect, she relies on her subjective belief that Glaxo discriminated against her because she was an African American. InByers, the Fifth Circuit was confronted with a similar situation and affirmed the district court's grant of summary judgment. 209 F.3d at 427. It is not necessary to proceed any further with theMcDonnell Douglas analytical framework. However, the court specifically finds that Glaxo's stated reason for termination of Ms. Francis was a legitimate non-discriminatory motive. Accordingly, the claim for wrongful termination must be dismissed.
Francis contends that she should be permitted to depose Turner and Sherri Cooper. There is nothing to be gained from a deposition of Turner because the documentary evidence does not substantiate Francis' claim of disparate treatment. In support of her request for Cooper's deposition, Francis has not presented an affidavit pursuant to Fed.R.Civ.P. 56(f), nor has she specified what facts deposition would provide. Instead Francis refers to Cooper's testimony in terms of legal conclusions.
Conclusion
Plaintiff has not carried her burden on summary judgment motion of presenting competent evidence of the existence of a genuine fact issue for trial. Rather, on all of her claims of racial discrimination Ms. Francis has failed to establish an essential element of proof on which she bears the burden. Accordingly,
IT IS ORDERED that Glaxo's motion for summary judgment (Rec. doc. 36) is GRANTED and Francis' complaint is dismissed with prejudice with each party to bear its/her own costs.