Golston v. American Airlines, Inc.

Full title: ROBERT L. GOLSTON v. AMERICAN AIRLINES, INC

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Sep 7, 2004

Civil Action No. 4:02-CV-713-Y (N.D. Tex. Sep. 7, 2004)

Opinion

Civil Action No. 4:02-CV-713-Y.

September 7, 2004

ORDER PARTIALLY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

TERRY MEANS, District Judge

Pending before the Court is defendant American Airlines, Inc. ("American")'s: (1) Motion for Summary Judgment, filed October 20, 2003. Having carefully considered the motion, response, and reply, the Court concludes that the motion for summary judgment should be PARTIALLY GRANTED.

I. RELEVANT BACKGROUND

The plaintiff began working for defendant American Airlines in 1991. American is an air carrier covered by the Railway Labor Act ("RLA"). See 45 U.S.C. § 181 (2002). The plaintiff's statutory labor representative is Transport Workers Union of America ("TWU").¹ The TWU and the defendant are parties to a primary collective-bargaining agreement ("CBA") and to various supplemental CBAs, including one that is called the Qualification Administration Manual ("QAM").

1 The National Mediation Board has certified TWU as the statutory collective bargaining representative for certain employees of American.

In January 1999, the plaintiff was promoted to a position as a mechanic. On August 14, 2001, the plaintiff filed a petition in state court alleging four causes of action against the defendant: (1) racial discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA"); (2) retaliation in violation of the TCHRA; (3) racial harassment in violation of the TCHRA, and (4) intentional infliction of emotional distress. He bases his claims on various allegedly harassing and demeaning events, including: (1) receiving racially discriminatory literature from his co-workers; (2) receiving damage to his personal vehicle while at work; (3) receiving paychecks in amounts less than he had actually earned; (4) failing to receive proper training, which resulted in his failing a mechanic's test called the PM92;² (5) being forced to take the PM92 test under unequal circumstances; (6) being subjected to discriminatory language; and (7) being subjected to viewing a hangman's noose that had been placed in his work area; and (8) being subjected to racial graffiti. (Pl.'s Compl. at 2-5.) In addition the plaintiff complains about the following: (1) his "union rights" were violated when a supervisor yelled at him and demanded that he not immediately leave the airport to report to headquarters; (2) he was called a troublemaker by a supervisor; (3) he was hit with a CB radio by a crew chief and union officials failed to properly handle the incident; (4) he was punched in the back by a plant maintenance man and union officials failed to properly handle the incident; (5) his transfer request was mysteriously deleted from the transfer list; (6) he was not receiving the same training as other individuals; (7) he was subjected to racially discriminating remarks; (8) he was reprimanded for taking previously scheduled vacation days when other employees were allowed to use their vacation days; (9) he was not allowed to refer to the training manuals during his PM92 test and did not get the same training as other Caucasian employees; (10) although he was allowed to retake the PM92 test after filing a grievance, he once again failed as a result of inadequate training and questionable exam procedures; (11) he was asked to violate company policy; (12) he was treated improperly after a 29(f) hearing;³ and (13) his complaints of discrimination were not taken seriously and were ignored by the defendant.

2 "The PM92 is a job qualification test that every Facilities Maintenance Mechanic must successfully complete within 180 days of becoming a Mechanic." (Def.'s Resp. at 2.)

3 According to Article 29, section f of the CBA, the supervisors of the defendant have "the right to make reasonable inquiries of employees, individually or collectively, in the normal course of work." (CBA at 2902.) These inquiries are apparently called 29(f) hearings.

The defendant argues that it is entitled to summary judgment because: (1) the plaintiff's claims are preempted by the RLA, (2) the plaintiff's claims are precluded under the doctrine of issue preclusion, and (3) the plaintiff has failed to present evidence that proves all the elements required to support his claims.

II. SUMMARY-JUDGMENT STANDARD

Summary judgment is proper when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5^th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5^th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5^th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5^th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5^th Cir. 1989).

In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5^th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5^th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5^th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.

To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5^th Cir. 1994); Lavespere, 910 F.2d at 178.

To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5^th Cir. 1988).

When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5^th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.

III. ANALYSIS

A. Preemption

The Court, in an order dated February 28, 2003, has already ruled that the plaintiff's claim for intentional infliction of emotional distress based on his treatment during 29(f) hearings, while taking the PM92 test, as to receiving proper training, during grievance procedures, while retaking the PM92 test, and during union activities, were preempted. With respect to the plaintiff's claims for discrimination, harassment, and retaliation based on this same treatment, the Court concludes that these claims are also preempted for the reasons stated in the Court's February 28, 2003, order.⁴

4 Because the Court has held that any claims based on events relating to Golston's training, testing, grievance settlement, and retesting are preempted, the Court need not determine whether issue preclusion is also applicable based on an arbitrator's decision relating to these same events.

B. Racial Discrimination and Retaliation

Plaintiff's claims for racial discrimination and retaliation appear to be based on events relating to his training, testing, grievance settlement, and retesting. Because any analysis by the Court on these events would involve interpreting the CBA and the QAM, the Court concludes, as stated above, that Golston's claim for racial discrimination and retaliation are preempted. Even assuming that these claims were not preempted, Golston has failed to even address whether he has established a prima-facie case of racial discrimination or retaliation. Instead, Golston, in his response, appears to have abandoned his claims for racial discrimination and retaliation and focuses on his claims for racial harassment and intentional infliction of emotional distress. Because Golston has failed in his response to point to any competent summary-judgment evidence supporting his claims for racial discrimination and retaliation, the Court concludes that American is entitled to summary judgment on these claims.

C. Racial Harassment

To establish a prima-facie case of racial harassment, Golston must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) American knew or should have known of the harassment and failed to take prompt remedial action. See Celestine v. Petroleos de Venezualla SA, 266 F.3d 343, 353 (5^th Cir. 2001). For harassment to affect a "term, condition or privilege of employment," it must be "sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment." Id. Such a determination can be made only after reviewing all of the relevant circumstances, such as "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 plaintiff's work performance." Nash v. Electrospace Sys. Inc., 9 F.3d 401, 404 (5^th Cir. 1993) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)).

Golston alleges that he has been subjected to ongoing harassment from 1991 through 2002.⁵ As evidence of such harassment, Golston points to many incidents, including: (1) his discovery of a noose in August 1999 at American's headquarters; (2) evidence of racial flyers at American; (3) repeated episodes of racial graffiti; (4) use of racial slurs and racial remarks by multiple employees over a long period of time; (5) evidence that white mechanics had openly stated since May 4, 1999, that they would not work with "niggers" (P.'s Resp. at 30), (6) an incident that Golston witnessed in which some white mechanics blocked a black woman's car (Def.'s App. at 88); (7) evidence that a white mechanic said he did not want to work with blacks and that he would call in sick if scheduled to do so; and (8) being referred to by supervisors as "boy."

5 American argues that all of Golston's alleged incidents of harassment that occurred before February 17, 1999, are time-barred because Golston did not file his EEOC charge until August 16, 1999. (Def.'s Memo. of Law in Supp. of Summ. J. ("Def.'s Memo.") at 28.) Golston, however, argues that because this is a hostile work environment claim, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) controls. In Morgan, the Court stated:

Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts. . . .

. . . . It does not matter for purposes of the statute [of limitations], that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire period of the hostile environment may be considered bya court for the purposes of determining liability.

Id. at 115-17 (internal citations omitted).
After reviewing the evidence and the applicable case law, the Court agrees with Golston that as to Golston's racial harassment claim, the Court will consider all acts that occurred since they are all part of the same unlawful practice ant at least one of the acts falls within the applicable filing period.

After reviewing the evidence, the Court concludes that there is no doubt that Golston is a member of a protected class and that he, at least prima facie for summary-judgment purposes, was subjected to unwanted harassment and that at least some of the harassment was based on Golston's race. Because there are genuine issues of material fact as to whether he did, in fact, suffer harassment and whether the harassment suffered by Golston, if proven, affected a term, condition, or privilege of employment and whether American knew or should have known of the alleged harassment and failed to take prompt remedial action, American is not entitled to summary judgment on this claim.

C. Intentional Infliction of Emotional Distress

To prove intentional infliction of emotional distress ("IIED"), the plaintiff must show: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff's emotional distress; and (4) the emotional distress was severe. See Hughes Training Inc. v. Cook, 254 F.3d 588, 594 (5^th Cir. 2001); Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001); City of Midland v. O'Bryant, 18 S.W.3d 209, 216 (Tex. 2000). Whether a defendant's conduct is "extreme and outrageous" is a question of law. Bradford, 48 S.W.3d at 758; Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). The mere fact that a defendant's conduct is tortious or otherwise wrongful does not, standing alone, necessarily render it "extreme and outrageous." Brewerton, 997 S.W.2d at 216. For conduct to be considered extreme and outrageous, it must be "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." City of Midland, 18 S.W.3d at 217 (internal quotations omitted). Liability does not arise from "mere insults, indignities, threats, annoyances, or petty oppressions." Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5^th Cir. 1993).

Golston claims that he suffered IIED as a result of being subjected to systematic harassment during his employment with American. He claims that he suffered from stress, anxiety, fear, and nervousness. After reviewing the evidence, the Court concludes that Golston's allegations simply do not rise to the level of being extreme and outrageous. The standard for finding extreme and outrageous conduct is rigorous and Golston has not met it. See, e.g., Gearhart v. Eye Care Centers of Am., Inc., 888 F. Supp. 814, 823 (S.D. Tex. 1995) (supervisor's comments about an article on breasts and comments about another woman's breasts, his alleged putting his arm around plaintiff and touching the right side of her breast on one occasion, his playing with her hair, and his kicking her in the buttocks, not extreme and outrageous as a matter of law); MacArthur v. Univ. of Texas Health Ctr. at Tyler, 45 F.3d 890, 898-99 (5^th Cir. 1995) (mere employment dispute not intentional infliction of emotional distress); Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5^th Cir. 1993) (supervisor calling a Hispanic employee a "Mexican" and a "wetback" did not constitute extreme and outrageous conduct); Diamond Shamrock Ref. Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (falsely accusing employee of being a thief insufficient to constitute outrageous behavior). Consequently, American is entitled to summary judgment on this claim.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that the defendant's Motion for Summary Judgment [doc. # 30-1] is PARTIALLY GRANTED. The plaintiff's claims for racial discrimination, retaliation, racial harassment, and IIED that are based on events relating to treatment Golston received during 29(f) hearings, while taking the PM92 test, regarding proper training, during grievance procedures, while retaking the PM92 test, and during union activities are preempted by the RLA. In addition, the plaintiff's claims for racial discrimination, retaliation, and IIED that are not based on such events are dismissed with prejudice.⁶

6 The only surviving claim is the plaintiff's claim for racial harassment.