Opinion
Civil Action No. 3:00-CV-2675-P
April 17, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Defendant's Motion for Summary Judgment, with Brief in Support and Appendix, filed November 30, 2001;
2. Plaintiffs Response to Defendant's Motion for Summary Judgment, with Brief in Support, filed January 3, 2002;
3. Defendant's Reply to Plaintiffs Brief in Support of Plaintiffs Response to Defendant's Motion for Summary Judgment, filed January 18, 2002; and
4. Defendant's Supplemental Appendix in Support of its Motion for Summary Judgment and Brief in Support Thereof, filed January 22, 2002.
After a thorough review of the summary judgment evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.
BACKGROUND
Plaintiff Jerome Germany ("Germany"), an African-American individual, brings the current lawsuit before the Court against his former employer, Austin Coca-Cola Bottling Company, d/b/a Coca-Cola Bottling Company of North Texas ("Coke North Texas"), alleging claims of race discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000-e et seq. Pl.'s Orig. Compl. at 1.
Plaintiff began his employment as a driver in the Cooler Department with Coke North Texas in January of 1993. Def's App. at 5-6 (Germany Dep. at 41-42). At the time of his hire, Plaintiff received a copy of Coke North Texas's policy on possession or use of weapons on company property. See Def.'s App. at 70 (Washington Decl. at 2); see also Def.'s App. at 111 (Signed Acknowledgment by Germany dated 1/21/93).
On August 31, 1999, Plaintiff drove to work in his 1983 Caprice Classic and parked the car in the back parking lot of Defendant's facility. Def.'s App. at 13-14 (Germany Dep. at 97-98). After receiving his instructions and leaving to begin his deliveries, Plaintiff was contacted via a 2-way hand-held radio by his supervisor, Tommy Vinson, requesting that he contact him on the telephone. Def.'s App. at 15-16 (Germany Dep. at 101-102). When Plaintiff reached a telephone at his next delivery stop, Vinson informed him that his car had been stolen from Defendant's parking lot, but that it had been subsequently recovered by the Dallas Police Department. Def.'s App. at 17-18 (Germany Dep. at 103-104).
Ron Reynolds, an employee of Coke North Texas, asserts that two police officers approached him mid morning on August 31, 1999, and asked if he knew Mr. Germany. Def.'s App. at 61-62 (Reynolds Decl. at 1-2). According to Reynolds, he told the officers he did and the officers indicated that they wanted to speak with Mr. Germany about his car having been stolen from the company parking lot Def's App. at 62 (Reynolds Decl. at 2). Reynolds also states that later that morning he overheard one of the police officers talking to someone over the telephone in the garage about the stolen car and two guns which the officers had found in the trunk of the car. Def's App. at 62 (Reynolds Decl. at 2). Officer Paul Bescherer, who was involved in the arrest of the individual suspected of taking Plaintiffs car from Defendant's parking lot at 6011 Lemmon Avenue, asserted that during the subsequent search, two guns were found in the trunk of said vehicle. See Def.'s App. at 53 (Bescherer Decl. at 1). After returning the vehicle to Defendant's parking lot, Officer Bescherer further states: "I confirmed that the vehicle belonged to an employee of the Company, Jerome Germany. In a telephone conversation with Mr. Germany, he confirmed that the guns in question also belonged to him. As such, the guns were left in the vehicle's trunk after the completion of my investigation." Def.'s App. at 54 (Beseherer Decl. at 2)
Reynolds also states in his declaration that, "after this conversation, the officer said Mr. Germany had admitted that the guns found in his car belonged to him. I mentioned that we were not supposed to have guns on company property, and the officer again said that he had found guns in Mr. Germany's car and that Mr. Germany admitted that the guns belonged to him." Def.'s App. at 62 (Reynolds Decl. at 2). The Court finds that this statement may be admissible to show the state of mind or belief of the employer as to whether Plaintiff possessed the aforementioned guns. That is, the statement is not offered for the truth as to whether Plaintiff had a gun, but was part of Defendant's investigation and was information which Defendant had before it which goes to show the reasonableness of Defendant's belief that Plaintiff had guns on its premises.
Plaintiff, meanwhile, claims he was contacted again by Vinson, via his 2-way hand-held radio, asking him to the return the call. Def.'s App. at 19-20 (Germany Dep. at 105-106). This time Plaintiff sent his helper, possibly one Ricky Ricardo, and instructed him "you go and make the call and I'll finish up, and see what the deal is." Def.'s App. at 19-20 (Germany Dep. at 105-106). According to Germany, his helper didn't tell him much, only that it had something to do with Plaintiffs car having been stolen. Def.'s App. at 22 (Germany Dep. at 111). Plaintiff states that at no time did he speak with Officer Bescherer, or recall talking to any police officers. See Pl.'s Br. in Supp. Resp. at 3; see also Def's App. at 38 (Germany Dep. at 137).
On the way to his next stop, Plaintiff received another call from Vinson on the 2-way radio requesting his location. Def's App. at 23 (Germany Dep. at 112). Vinson then told Germany to stay where he was on his route and someone would come and pick him up. Shortly thereafter, Howard James, along with another Coke North Texas driver (Clem Manning), arrived to pick up Plaintiff Def.'s App. at 24 (Germany Dep. at 113). Manning assumed Germany's delivery route for the remainder of the day and Plaintiff returned to the Coca-Cola plant with James. Def.'s App. at 24-25 (Germany Dep. at 113-114).
Upon arrival at the plant, Plaintiff asserts he proceeded directly to Vinson's office as instructed. Def's App. at 26 (Germany Dep. at 116). Present along with Vinson were Tina Perrin (Human Resources Director), Debbie Young (also from the Human Resources Department), and J.D. Crumrine (a Cooler Services Supervisor). Def.'s App. at 27 (Germany Dep. at 117). At this meeting Germany states he was asked by Young and Vinson if he had guns in his vehicle, which he purportedly denied. Def.'s App. at 28-29 (Germany Dep. at 118-119). Plaintiff states he was aware of the company policy regarding the prohibition against possession of firearms, weapons and/or guns and the consequences for violating the policy. Id. Meanwhile, both Vinson and Young declare that Plaintiff admitted to them at this meeting that he had told the police officers that the guns found in his car belonged to him. See Def.'s App. at 64, 66 (Vinson Decl. at 1 Exh. 1); see also Def.'s App. at 113, 115-116 (Young Decl. at 1 Exh. 1).
At the end of the meeting Plaintiff went with Vinson and Crumrine to look inside Plaintiffs car. Def.'s App. at 30-31 (Germany Dep. at 120-121). The car was found located near the guard shack (up against the fence), not where it had been previously parked by Plaintiff that morning. Def.'s App. at 32 (Germany Dep. at 122). After a search was performed, no guns were found in the car. Def.'s App. at 32 (Germany Dep. at 122).
Plaintiff was suspended the following day for possessing firearms on the premises of Coke North Texas, and was ultimately terminated on September 13, 1999. Def.'s App. at 35 (Germany Dep. at 128). Plaintiff alleges that other non-African American employees brought firearms, weapons and/or guns onto the Company's premises and were not terminated. More specifically, Germany states that while employed at Defendant's Buckner plant he saw Traci Stewart, a non-African American employee, with guns in his vehicle which he displayed to managers Gene Leston, Tex York and Mark Gentlemen. See Pl.'s Br. in Supp. Resp. at 4. In addition, while he was employed at the Lemmon plant, Plaintiff alleges he saw several non-African American employees, including Steve Morris, Mike Morris, and Howard James, whom he saw at various times with firearms on the premises. See Id.; see also Def.'s App. at 40-45 (Germany Dep. at 150-151, 154, 156-158). Also, according to Germany, he saw a manager (Terry Clem) bring weapons in his truck onto the Defendant's property, and suffer no repercussions for it. Def.'s App. at 45-47 (Germany Dep. at 158160). Plaintiff never reported any of these incidents, nor could recall the names of any other employees who were with him as he witnessed these persons possessing guns or weapons on company property. See Def.'s App. at 40 (Germany Dep. at 150); see also Def.'s Suppl. App., Exh. A (Germany Dep. at 162).
DISCUSSION
I. Standard for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-250; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-323. The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-1076 (5th Cir. 1994).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. Race Discrimination Claims
A. Legal Standard Under Title VII
Under Title VII of the Civil Rights Act of 1964, "it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race." 42 U.S.C. § 2000e-2(a)(1) (1994 Supp. 2001). When a plaintiff such as Germany alleges disparate treatment, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) ( citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiffs race must have "actually played a role in the employer's decision-making process and had a determinative influence on the outcome." Id. Plaintiff must prove intentional discrimination either through direct evidence or indirect evidence. See Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden shifting framework. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
In order to create an inference of discrimination, the plaintiff must first establish a prima facie case of discrimination. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). Such a prima facie case is established if the plaintiff provides evidence that: (i) he is a member of a protected class; (ii) he was qualified for the position he held; (iii) he suffered an adverse employment action, such as discharge; and (iv) after his discharge, he was replaced with a person who is not a member of the protected class. Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000); see also Meinecke v. HR Block, 66, F.3d 77, 83 (5th Cir. 1995); O'Conner v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-313 (1996). In some cases, however, a plaintiff may establish a prima facie case by relying on proof of disparate treatment when an employee suffers an adverse employment action for what appears to be good cause. Crosby v. Dallas County, Texas, 166 F. Supp.2d 525, 529 (N.D. Tex. 2001) (Solis, J.). To establish a claim of disparate treatment, a plaintiff must show the (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) non-protected class employees were not treated similarly. Id. (citing Daigle v. Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).
The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford, 190 F.3d 398, 404 (5th Cir. 1999). This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell, 235 F.3d at 222. If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id.
Since the ultimate burden of persuasion remains at all times with the plaintiff, the Supreme Court has stated that in attempting to satisfy this burden, the plaintiff must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but was a pretext for discrimination. Reeves, 530 U.S. at 143. Consequently, the Supreme Court has found that a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employee was unlawfully discriminated against. Id. at 148. However, this is not to say that a showing of pretext alone automatically would entitle an employee to a judgment as a matter of law. Id. That is, there may be instances where the employer would be entitled to judgment if the record conclusively revealed some other nondiscriminatory reason for its decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. Id. Regardless, at this summary judgment stage, once a Title VII case reaches the pretext stage, the only question is whether there is a conflict in substantial evidence to create a jury question regarding discrimination. Shackelford, 190 F.3d at 404 (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)).
B. Application of the Law to the Facts
In the instant case, Plaintiff does not suggest that he has any direct evidence of race discrimination. See Def.'s App. at 39 (Germany Dep. at 149). Thus, in the absence of direct evidence, Plaintiff must rely upon circumstantial evidence to establish a prima facie case of race discrimination under the McDonnell Douglas/St. Mary's burden shifting framework. Russell, 235 F.3d at 222.
1. Prima Facie Case
Coke North Texas does not challenge Germany's status as a member of a protected class, that he was qualified for the position he held, or that he was ultimately discharged on September 19, 2000. Defendant does, however, challenge Plaintiffs ability to establish a prima facie case in that he cannot show he was replaced by someone outside his protected class or that a similarly situated individual outside the protected class received more favorable treatment. Def.'s Br. in Supp. Mot. Summ. J. at 8-10.
It is undeniable here that once Plaintiff was terminated, he was replaced by Greg West, also an African-American individual. Id. at 8-9. Nevertheless, Plaintiff alleges that several non-African Americans, namely Traci Stewart, Steve Morris, Mike Morris, Howard James, and Terry Clem, at various times brought firearms onto Defendant's premises and suffered no repercussions for it. In showing that these non-African American employees were not similarly disciplined, Plaintiffs evidence consists solely of his testimony that while he was employed at Defendant's Buckner plant he saw Traci Stewart (a non-African American employee) with guns in his vehicle, which he purportedly displayed to managers Gene Leston, Tex York and Mark Gentlemen. See Pl.'s Br. in Supp. Resp. at 4. Also, Plaintiff states that while he was employed at Defendant's Lemmon plant, he purports to have seen Steve Morris, Mike Morris, Howard James, and Terry Clem (all non-African American employees), at various times possess firearms on the Defendant's premises. See Id.; see also Def.'s App. at 40-47 (Germany Dep. at 150-151, 154, 156-160). For the following reasons, the Court agrees with Coke North Texas that none of these individuals presents an adequate comparison for purposes of demonstrating that non-protected class employees were treated dissimilarly by Defendant.
In order to establish a prima facie case in this matter, a plaintiff must show that the white employees were treated differently under circumstances "nearly identical" to his. Mayberry, 55 F.3d at 1090; see also Little v. Republic Refining Co., Ltd., 924 F.2d 93 (5th Cir. 1991) (applying same standards in age discrimination case). Thus, the individuals with whom plaintiff seeks to compare his treatment with "must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Birdow v. Runyon, No. Civ.A. 3:97-CV-1715-P, 1999 WL 956876 at 4 (N.D. Tex. Oct. 19, 1999) (Solis, J.) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Here, the comparison to Terri Stewart fails because Mr. Stewart did not even work at the same facility as Plaintiff at the time of these alleged incidents. See Def.'s App. at 47-48 (Germany Dep. at 160-161). Similarly, the comparison to Steve Morris, Mike Morris, and Terry Clem also fails because Plaintiff cannot even estimate as to when these individuals allegedly possessed a weapon on Defendant's company premises. See Def.'s App. at 42-47 (Germany Dep. at 154, 156-160). Plaintiff further concedes that these employees worked in the Shop Department, whereas he worked as a driver in the separate Cooler Services Department, clearly not dealing with the same supervisors as him. See Def.'s App. at 42, 44 (Germany Dep. at 154, 157).
As for Howard James, Plaintiff alleges that he saw Mr. James possessing a weapon on company property on several occasions during 1998. See Def.'s App. at 41 (Germany Dep. at 151). However, the summary judgment evidence shows that the decision makers who participated in Plaintiffs termination in September 1999, Tina Perrin (Division Human Resources Director) and Debra Washington (Human Resources Manager), stated that neither was aware of any other employees having violated Defendant's weapons policy at the time they made their decision. See Def.'s App. at 57-58, (Perrin Decl. at 1-2); Def.'s App at 69 (Washington Decl. at 1). Plaintiff concedes he never reported any of these incidents, nor could recall the names of any other employees who were with him as he witnessed these persons possessing guns or weapons on company property. See Def.'s App. at 40 (Germany Dep. at 150); see also Def.'s Suppl. App., Exh. A (Germany Dep. at 162). For these reasons, the Court finds that Germany fails to make out a prima facie case, and Coke North Texas is entitled to summary judgment.
Plaintiff cannot also show that any of the employees named above were alleged to have had a weapon in their vehicles on company premises after the issuance of the "Possession of Weapons on Company Property" memorandum from Tina Perrin, dated July 2, 1999. This memorandum, specifically directed to all Coke North Texas employees, stated:
"It has long been a Company Policy that "possession of a dangerous weapon, including but not limited to, firearms at any time on Company property or in a Company vehicle is strictly prohibited and is grounds for immediate termination. This prohibition clearly applies to vehicles parked or entering onto Company property as well as lockers, lunch boxes, briefcases, handbags or on the person of an employee, customer or guest.'"See Def.'s App. at 59.
2. Non-Discriminatory Reason and Pretext
The Court, however, notes that only a "very minimal showing" is required for a plaintiff to satisfy the essential elements of a prima facie case. Crosby, 166 F. Supp.2d at 530 (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)). Therefore, even assuming arguendo that Plaintiff created a fact question by denying that he violated Coke North Texas' policy regarding possession of weapons on company premises, the Court would still find that he is unable to demonstrate that Defendant's proffered reasons for his termination were merely a pretext to disguise racial discrimination.
Coke North Texas responds to Germany's prima facie case by insisting that there was no racial motivation behind its decision to terminate Plaintiff; that the decision was based upon its investigation which supported the conclusion that Plaintiff had violated its weapons policy. See Def.'s Reply at 6. With this, Defendant has discharged its burden of production, and the burden reshifts to Plaintiff to prove that Coke North Texas' proffered reason is merely a pretext for discrimination. Reeves, 530 U.S. at 143.
Germany argues that a fact issue must exist here since he claims there is no evidence, other than the testimony from Officer Bescherer, that he actually violated the weapons' policy as no weapons were found in Plaintiffs car when it was returned to the company lot, weapons were not mentioned in the police report filed in connection with the incident, and Plaintiff denies possessing any guns. See Pl.'s Br. in Supp. Resp. at 7; see also Def.'s App. at 32 (Germany Dep. at 122); Def's App at 55-56 (Police Report). However, the Fifth Circuit has noted that in work-rule violation cases, the plaintiff must still rebut the defendant's nondiscriminatory reasons even when a fact issue exists as to whether plaintiff actually violated the work-rule in question. See Mayberry, 55 F.3d at 1091 n. 4.
Plaintiff attempts to overcome Defendant's nondiscriminatory reasons essentially by reasserting his prima facie evidence of dissimilar treatment and by seizing on the fact that a question exists as to whether or not he in fact violated the company's weapons policy. Nonetheless, the summary judgment evidence shows that Defendant, in its judgment, had more than enough evidence to support its conclusion that Plaintiff had violated its weapons policy, thus warranting his termination. That is, Officer Bescherer's testimony was that in a telephone conversation with Mr. Germany, he confirmed that two guns were found in Plaintiffs car which belonged to Plaintiff and as such, were left in the vehicle's trunk after the completion of the investigation. See Def.'s App. at 54 (Bescherer Decl. at 2). Ron Reynolds also testified that on the morning of August 31, 1999, he overheard one of the police officers talking to someone over the telephone in the garage about the stolen car and two guns which the officers had found in the trunk of the car. See Def.'s App. at 62 (Reynolds Decl. at 2). Moreover, Tommy Vinson and Debbie Young insist that Plaintiff admitted to them that he had told the police officers that the guns that the guns found in Plaintiffs car belonged to him. See Def.'s App. at 64, 66 (Vinson Decl. at 1 Exh. 1); see also Def.'s App. at 113, 115-116 (Young Decl. at 1 Exh. 1).
Plaintiff simply misses the mark by seizing on the fact that Defendant was mistaken in believing that he had violated the company's weapons rule. The question is not whether an employer has made an erroneous decision; it is whether the decision was made with discriminatory motive. See Mayberry, 55 F.3d at 1091 ("[E]ven an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason . . . motive is the issue . . . ."). Therefore, based on this, as well as the previously made findings regarding Plaintiffs allegations of disparate treatment, the Court finds as a matter of law that Germany has failed to rebut Defendant's nondiscriminatory reasons.
CONCLUSION
For the reasons stated above, having considered the summary judgment evidence, the applicable law, and the parties' arguments, the Court is of the opinion that Defendant's Motion for Summary Judgment shall be and is hereby GRANTED.