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holding that complaint was more akin to national origin discrimination as plaintiff alleged discrimination because he was an "Arab from Iraq"
Summary of this case from Nguyen v. Brink's, Inc.Opinion
Civil Action No. 3:00-CV-0041-D
February 7, 2003
MEMORANDUM OPINION AND ORDER
Defendant American Airlines, Inc. ("American") moves for summary judgment dismissing this action by plaintiff Falah M. Hadad ("Hadad") for national origin and/or race discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. For the reasons that follow, the court grants the motion in part and denies it in part, and it raises sua sponte whether plaintiffs § 1981 should be dismissed on a separate ground.
I
Hadad is a naturalized United States citizen who was born and raised in Iraq. He began working for American in 1986 as an Aviation Maintenance Technician (i.e., mechanic). Hadad alleges that, beginning in 1989 and at various times since, American employees subjected him to harassment based on his national origin and race, arising in part from the Gulf War. Hadad maintains that American personnel, including his supervisors, subjected him to harassing treatment, used racial epithets, and made employment decisions based at least in part on his race and/or national origin.
American discharged Hadad in 1997 but later reinstated him following arbitration under American s contract with Hadad's labor union. Hadad filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") arising from these events, but it was dismissed, in part because the arbitration decision restored Hadad to his former position, with seniority and benefits. Hadad did not bring a lawsuit against American after the EEOC issued a right-to-sue letter.
Hadad avers that, after he returned to work, he was subjected to additional discrimination, retaliated against for filing additional EEOC complaints, and subjected to discrimination by his coworkers. American contends that, during this time, Hadad was medically unfit for service and failed to obtain necessary medical clearances to maintain his position. Hadad asserts that his personal physician cleared him for duty.
In 1999 American removed Hadad from service. American posits that at all times it had valid employment-related reasons for its actions. In causes of action under Title VII and § 1981 that overlap to some extent, Hadad alleges that American discriminated against him by subjecting him to a hostile work environment; refusing to provide him similar opportunities to earn compensation, bid for positions, and to the privileges and benefits of employment; and disciplining him differently. He also avers that American is liable under Title VII for retaliating against him for complaining of disparate treatment based on his national origin/race.
Hadad also asserts that American retaliated "because of his national origin/race." See Compl. ¶ 82. This allegation is properly considered a claim for discrimination, not retaliation.
American moved for summary judgment. Hadad responded to the motion but also sought a Fed.R.Civ.P. 56(f) continuance. The court granted the continuance motion and permitted Hadad to take certain discovery. Thereafter, he filed a supplemental response, and American filed a supplemental reply brief.
In its reply brief and supplemental reply brief, American objects to certain parts of Hadad's summary judgment evidence. The court either has not relied on evidence to which American objects or has concluded that the evidence is admissible. Accordingly, the objections are overruled as moot or as lacking merit.
II
The court begins by raising sua sponte whether American is entitled to summary judgment dismissing Hadad's § 1981 claim. It is well settled that the court may grant summary judgment sua sponte if it gives the adverse party proper notice. See Mo. Pac. R.R. Co. v. Harbison-Fischer Mfg. Co., 26 F.3d 531, 539 (5th Cir. 1994); Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 445 (5th Cir. 1991)."To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerns one or more of the activities enumerated in the statute [e.g., enforcement of a contract]." Felton v. Poiles, ___ F.3d ___, 2002 WL 31819894, at *12 (5th Cir. 2002) (quoting Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994)). Hadad's § 1981 national origin discrimination claim therefore lacks merit, except to the extent he is actually seeking to recover for racial discrimination. "Racial discrimination under § 1981 encompasses discrimination against `identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.'" Bennett v. Total Minatome Corp., 138 F.3d 1053, 1057 n. 2 (5th Cir. 1998) (citing St. Francis Coll. v. Al-Khazrali, 481 U.S. 604, 613 (1987)). Hadad does not appear, however, to assert discrimination on the basis of race, as the Supreme Court has explained that term in St. Francis College. See St. Francis Coll., 481 U.S. at 613 ("If respondent . . . can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, he will have made out a case under § 1981." (emphasis added)). Hadad alleges that American discriminated against him because he is an "Arab from Iraq," see, e.g., Compl. ¶¶ 57, 65, 73; P. App. 2 (emphasis added), which is more akin to an assertion of national origin discrimination than of race discrimination.
In fact, American asserts in its motion that "Hadad sues for race discrimination, but the facts show that this is a national origin discrimination case. Hadad is of Iraqi descent." D. Mot. at 2 n. 2.
Accordingly, no later than 20 days after this memorandum opinion and order is filed, Hadad must file a response that demonstrates that he is seeking to recover for race discrimination under § 1981, as defined in St. Francis College. If he fails to respond, or responds but fails to demonstrate that he is suing for racial discrimination, the court will dismiss his causes of action under § 1981.
III
The court now turns to the merits of American's motion. American contends first that Hadad's Title VII discrimination (including harassment) claims are time-barred to the extent based on conduct that occurred before March 9, 1998, because he did not bring them within the 300-day or 90-day time limits imposed by Title VII. It maintains that Hadad cannot recover for alleged discriminatory acts that occurred before March 9, 1998 because the acts on which he relies took place from 1989 to 1995 and were already over 300 days and 90 days old.
American refers in its brief to three different bar dates: March 28, 1998, D. Br. at 22-23; March 8, 1998, id. at 30; and March 9, 1998, id. at 30, 36. Hadad assumes that March 28, 1998 is the date on which American relies. The court treats March 9, 1998 as controlling. Hadad filed his EEOC complaint on February 24, 1998, and amended it on March 9, 1998. See D. App. 60-61. The EEOC dismissed the charge on August 12, 1998, id. at 122.1, apparently based on the arbitration ruling award of March 9, 1998, id. at 122.2-122.16, which reinstated Hadad.
In deferral states such as Texas, an aggrieved party must file his EEOC charge within 300 days after the alleged unlawful practice occurred. 42 U.S.C. § 2000e-5 (e)(1). The 300-day filing period is not jurisdictional, but rather is more akin to and operates as a limitations period. E.g., Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir. 1988); Pruet Prod. Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir. 1986). The period commences on the date the alleged unlawful practice occurred. Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989) (citing Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980)); Chapman v. Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989) (per curiam'). Additionally, to maintain a cause of action under Title VII, a party must file his lawsuit within 90 days of receiving a notice of right to sue letter. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Lawsuits filed more than 90 days after receiving the right to sue letter are subject to dismissal. Maddox v. Runyon, 139 F.3d 1017, 1021 (5th Cir. 1998) (affirming dismissal of Title VII suit filed more than 90 days following termination of agency investigation).
In his initial summary judgment response brief, filed May 31, 2002, Hadad clearly recognized that conduct that occurred from 1990 to 1997 is not actionable. See P. May 31, 2002 Br. at 10 ("Hadad does not ask this Court to accept his 1990-1997 allegations of misconduct as actionable[.]"). He contended instead that he may introduce evidence of these acts at trial to prove American's discriminatory intent concerning allegedly discriminatory acts that are not time-barred. In his October 21, 2002 brief Hadad appears to take a similar position, although he does not expressly concede that pre-March 1998 conduct is not actionable. See P. Oct. 21, 2002 Br. at 9-10.
A continuing violation can be brought to protect a series of acts that individually may not rise to claims but blend into one single unlawful practice. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2074-5 (2002). Plaintiff may bring his title VII claims so long as they are part of the same actionable claim. This may include continuing violations that are connected by common threads. See id. ("[T]he Court of Appeals concluded that `the pre-and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers' . . . we cannot say that they are not part of the same actionable hostile environment claim."). The Supreme Court has held that claims involving harassment or a hostile work environment may well be brought under a continuing violation theory. Id. at 2077. Acts involving retaliation are generally discrete, and should be brought within the applicable time period. Id. The court must still evaluate the evidence to determine whether it is relevant within the meaning of Fed.R.Evid. 401. The court may also be called on to decide whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Plaintiff is allowed, however, to proceed under a continuing violation theory with regard to his harassment and hostile workplace claims.
IV
American also maintains that Hadad' s § 1981 cause of action based on events that occurred before January 11, 1998 (two years before he filed suit) is time-barred, including any claim that is based on conduct or acts from 1989 to 1997. A two-year statute of limitations applies to this claim. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
In his May 31, 2002 brief, see P. May 31, 2002 Br. at 24-25, as in his October 21, 2002 brief, see P. Oct. 21, 2002 Br. at 24, Hadad plainly requests only that American's 1990 to 1997 conduct be deemed admissible as background evidence to establish the discriminatory intent of American's later acts of discrimination and retaliation. As the court has held supra concerning Hadad's Title VII claims, the ones on which Hadad relies that occurred before January 11, 1998 are time-barred, and American is entitled to partial summary judgment dismissing them. Evidence of such barred acts may be admissible, however, during trial as background evidence that is probative regarding timely § 1981 claims.
V
American contends that Hadad cannot recover for discrimination under Title VII and § 1981 because American took no adverse employment action against him but removed him from service for a legitimate, nondiscriminatory reason.
At this point the court will assume arguendo that Hadad's § 1981 claims are properly before the court.
A
The familiar burden shifting framework applicable to Title VII claims for race and national origin discrimination also applies to Hadad's § 1981 claim. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir 1996) ("Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII."). Under this paradigm, as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), Hadad first must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once he meets this burden, American is obligated to produce a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion, and involves no credibility assessment. See id. Once American meets this production burden, the presumption of discrimination disappears. Id. Hadad must prove by a preponderance of the evidence that the legitimate reasons offered are not the true reasons but are a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. at 143 (quoting Tex. Dep't of CommunityAffairs v. Burdine, 450 U.S. 248, 256 (1981)). "[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 employer unlawfully discriminated." Id. at 148. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 147. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, Hadad need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (ND. Tex. 1990) (Fitzwater, J.).
B
American argues that Hadad cannot establish a prima facie case of discrimination because he cannot prove that he suffered an adverse employment action. It maintains that Hadad was only removed from service, not terminated, because he was deemed medically unfit and refused to take the required fitness-for-duty examination. American's argument either misapprehends the meaning of the term "adverse employment action" in the prima facie case formulation of the first step, or it conflates the second and third steps of the burden-shifting model with the first.
Title VII prohibits discrimination against an individual "with respect to his. . . terms, conditions, or privileges of employment[.]" Hadad maintains that removal from service involved taking his identification badge and keys and escorting him from the premises. This allegation at least pertains to a condition or privilege of employment, and, if proved, establishes an adverse employment action. Nor can American argue that Hadad did not suffer an adverse employment action because it had a legitimate, nondiscriminatory reason for removing him from service. If true, the fact that American did not unlawfully discriminate against him (an issue pertinent to the second and third steps of McDonnell Douglas) does not mean that it did not engage in adverse conduct. The concepts are distinct. Therefore, removing Hadad from service is an adverse employment action.
The court need not, therefore, address whether, as Hadad maintains, he was constructively discharged. See P. Oct. 21, 2002 Br. at 11-12.
C
American also posits that it had a legitimate, nondiscriminatory reason for removing Hadad from service in August 1999. It has met its burden of production by adducing evidence that it removed Hadad based on job attendance and medical reasons — specifically, extensive treatment for alcoholism and depression — and that he refused to undergo several medical examinations that would have cleared him and allowed him to be returned to his duties without further restrictions. The burden has therefore shifted to Hadad to present evidence that would permit a reasonable trier of fact to find that these reasons are pretextual.
Hadad has introduced such evidence, including an affidavit from P. Raju Indukuri, M.D. ("Dr. Indukuri"), his physician. According to Dr. Indukuri, Hadad was treated in June and September 1998 for depression, but was wrongly diagnosed, and was not treated, for alcoholism, alcohol dependence, or alcohol abuse. P. App. 82. In May 1999, three months before American removed Hadad from service, his physician cleared him to return to work without any limitations, stating:
Re: Falah Hadad. To Whom It May Concern: The above named patient has been under my care for medical reasons. . . He is currently on no medication. He last took any psychotropic medications in Dec `98. He is fit to go back to work as an aircraft mechanic.Id at 90. Hadad's evidence is sufficient to create a genuine issue of material fact regarding whether the reasons given by American for Hadad's removal are pretextual. See Fierros, 274 F.3d 195 (holding that affidavit and other circumstantial evidence can be sufficient to overcome summary judgment motion). Although a jury may ultimately reject Hadad's proof of intentional discrimination and find American's evidence to be compelling, this claim must be decided by trial. Accordingly, the court denies summary judgment concerning Hadad's discrimination claim under Title VII and § 1981.
VI
American next contends it is entitled to summary judgment dismissing Hadad's Title VII and § 1981 harassment (hostile work environment) claims. It argues that Hadad relies on nothing more than sporadic and isolated instances, that some comments do not relate to his race or national origin, and that it took prompt, remedial action in response to Hadad's complaints.
A
To establish a prima facie case of a hostile work environment, Hadad must demonstrate (1) his membership in a protected class, (2) he was subject to racial or national origin harassment, (3) the harassment was based on race or national origin, (4) the harassment affected a term, condition, or privilege of his employment, and (5) American knew or should have known about the harassment, but failed to take prompt remedial action. See Nash v. Electrospace Sys., Inc., 9 F.3d 401, 403 (5th Cir. 1993) (per curiam) (addressing prima facie case of sexual harassment). "[W]here the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim, the plaintiff employee needs to satisfy only the first four of the elements listed above." Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 353 (5th Cir. 2001). He must show (1) discriminatory intimidation, ridicule, and insults, that are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment and (4) create an abusive working environment. DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995) (sex discrimination case) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Hadad must "prove more than a few isolated incidents of racial enmity." McCray v. DPC Indus., Inc., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987)). "The mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee does not affect the conditions of employment to a sufficiently significant degree to violate Title VII." Id. (citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)). Additionally, "racial comments that are sporadic or part of casual conversation do not violate Title VII." Id. (citing Hicks, 833 F.2d at 1412). Verbal ridicule, intimidation, or insults qualify as racially discriminatory when severe and pervasive enough to alter the terms and conditions of employment and create an abusive working environment. See Harris, 510 U.S. at 21 (sex discrimination case). To determine whether a working environment is abusive, the court must examine the totality of the circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance. Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996).
B
Hadad has introduced evidence of multiple slurs by multiple American employees over a period of several years. See P. App. 2-5, 9-10. Although some of this evidence would not of itself be sufficient to create a genuine issue of material fact, and some do not, in isolation, appear to relate to his race or national origin, when all the admissible evidence is viewed in combination and as part of a greater context, it is adequate to allow a reasonable jury to find in Hadad's favor.
C
American also maintains that it is entitled to summary judgment because, once Hadad complained, it took prompt remedial action. If a hostile work environment is created by persons without supervisory, or successively higher, authority over a plaintiff, the plaintiff must prove that the employer knew or should have known about the harassment and did not take prompt remedial action after being notified by the employee. See Nash, 9 F.3d at 403. Under the Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), if a hostile work environment is created by the supervisor, the employer is vicariously liable if a tangible employment action resulted from supervisor harassment. If a tangible employment action did not result, the employer can avoid liability by establishing the affirmative defense that it took prompt remedial action. Because this is an affirmative defense, to obtain summary judgment on this basis, the employer must establish beyond peradventure all of the essential elements of the defense. See Chaplin v. Nations Credit Corp., 307 F.3d 368, 372 (5th Cir. 2002) ("[I]f the movant bears the burden of proof on an issue . . . because . . . as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the. . . defense to warrant judgment in his favor." (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
Hadad maintains that he was subjected to coworker and supervisor harassment. Concerning coworker harassment, Hadad points the court to evidence of several occasions in which he was subjected to harassment by coworkers. See P. App. 2-3. American argues that it took prompt remedial action. Hadad has presented evidence, however, that is sufficient to create a genuine issue of material fact whether his complaints to supervisors went unheeded. See id at 2-5.
Regarding harassment allegedly carried out by supervisors, Hadad asserts that various crew chiefs subjected him to harassing conduct. In at least one instance, Hadad avers that crew chief Bill Steinlin "docked my pay without reason." Id at 2; see also id. at 5, 9 (noting other claims of harassment by crew chiefs or supervisors). Because Hadad has adduced evidence that a crew chief has the authority to dock pay, and the court has not been pointed to contrary proof, it must assume in the summary judgment context that the harassment to which Hadad was allegedly subjected was undertaken by one who qualifies as a supervisor under Burlington. See Burlington, 524 U.S. at 762 (noting that coworker, as opposed to supervisor, "cannot dock another's pay, nor can one co-worker demote another," and that tangible employment actions "fall within the special province of the supervisor," although these decisions may still be reviewed by higher ranking officers).
"A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id at 761. Hadad has introduced evidence that, on at least one occasion, crew chief Jim Krug denied him overtime following a racially-charged incident. See P. App. 5. Thus the court cannot grant summary judgment dismissing Hadad's claims based on supervisor conduct that resulted in tangible employment action.
Hadad has also introduced evidence of alleged incidents that involved supervisors but that did not result in tangible employment actions. See, e.g., id. at 9. American has not established beyond peradventure that it took prompt remedial action.
Accordingly, American is not entitled to summary judgment dismissing Hadad's hostile work environment cause of action.
VII
The court next considers plaintiff's Title VII retaliation claim. American maintains that Hadad cannot prove unlawful retaliation because Hadad does not complain about an "ultimate employment decision" and, even if removal from service is an ultimate employment decision, he cannot establish a causal link between that decision and any protected activity.
To establish a prima facie case of retaliation, Hadad must demonstrate that (1) he was engaged in a protected activity; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment decision. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 407-08 (5th Cir. 1999). This prima facie case gives rise to an inference of retaliation, and the burden of production then shifts to American, who must articulate a legitimate nondiscriminatory reason for the challenged employment action. See id. at 408. To survive summary judgment, Hadad must then make a showing sufficient to allow a reasonable factfinder to conclude that American's rationale is pretextual. See McDonnell Douglas, 411 U.S. at 801-03.
The Fifth Circuit interprets the anti-retaliation provision of Title VII to address only "ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (per curiam)). "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating.'" Id. (citations omitted). Hadad has adduced evidence of at least one ultimate employment decision — a denial of overtime — that occurred within the same month that he complained to a supervisor about an incident in which his crew chief called him a "towel head" and a "rug head." See P. App. 5. Although Hadad may not be able to establish at trial a nexus between his complaint to the supervisor and the denial of his request for overtime, the evidence is sufficient to preclude summary judgment. Nor need the court to address, in view of this fact issue, whether there are or are not other grounds on which Hadad may be able to prove retaliation that occurred within the limitations period.
Hadad argues that the anti-retaliation provision of Title VII should not be limited to ultimate employment decisions. See P. Oct. 21, 2002 Br. at 24. This argument is presently foreclosed in this circuit.
* * *
Accordingly, the court grants in part and denies in part American's motion for summary judgment and directs Hadad to file a response within 20 days of the date this memorandum opinion and order is filed that demonstrates that he is seeking to recover for race discrimination, rather than national origin discrimination, under § 1981.