Opinion
1:00CV01068
March 8, 2002
MEMORANDUM OPINION AND ORDER
Background
This matter is before the court on Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). (Pleading No. 11.) Plaintiff has opposed the motion.
Plaintiff Geary Owens ("Owens") alleges discriminatory and/or retaliatory discharge in violation of Title VII of the Civil Rights Act. 42 U.S.C. § 2000e, and the Civil Rights Act of 1866. 42 U.S.C. § 1981. The Complaint was filed on September 25, 2000 in Durham County Superior Court. Defendant, the City of Durham ("the City"), timely removed the action to this court,
Owens is an African American who began working for the City in its Fleet Maintenance Department in 1986 and was terminated on June 21, 1999 for violating the City's Workplace Violence Policy ("The policy"). As a City mechanic, Owens was primarily responsible for front-end alignments and repair of light vehicles. His Performance evaluations over the years indicated outstanding work, and he was promoted several times, advancing to Master Mechanic.
Owens was active in the union throughout his employment, serving as a union representative and assisting various employees, both African American and Caucasian, in raising complaints and concerns to management. Some of the complaints implicated Kent Cash, the Director of Fleet Maintenance, who is Caucasian, and Thomas Ayers, former Assistant Director of Fleet Maintenance, who is African American. As early as 1992, Owens complained to Cash about unspecified civil rights violations. In 1994, Owens and thirteen others filed a petition complaining about certain alleged unfair treatment and harassment. The petition resulted in a mediation agreement with petitioning employees retaining the ability to initiate an internal grievance in the event they felt insufficient progress was being made pursuant to the agreement. Again, in 1994, Owens participated in a complaint regarding a departmental policy requiring all employees to obtain commercial drivers licenses ("CDLs"). Owens complained that the policy was enforced more stringently against African Americans than Caucasians. He ultimately dropped the charge. Finally, in March 1999, Owens filed a written complaint with Cash alleging race discrimination but citing no specific instances. Owens agreed to wait and see what action would be taken to address his concerns, and never renewed the complaint.
Owens was terminated on June 21, 1999 for violating the City's Workplace Violence policy. The policy, adopted on August 22, 1996, prohibits violence or threats of violence in the workplace and provides for disciplinary action up to and including discharge. Owens acknowledges that he received a copy of the policy and was familiar with its strict interpretation: "I can go up to a co-worker and put my hand on them, and if they don't like it, I violated policy." (Pleading No. 12, Dep. of Geary Owens at 34, attached to Defendant's Memorandum.)
A May 27, 1999 altercation between Owens and John Freeman, an African American co-worker, led to Owens' termination. The May 27 incident was the culmination of at least a month of acrimony between Owens and Freeman, which began sometime in April 1999 when Freeman saw Owens sleeping on the job and slapped him on the face to rouse him. Owens reported the slap to his supervisor, R.L. Harris, who told him that Freeman could lose his job over it. Out of concern for Freeman's family, Owens told Harris that he would handle the matter on his own and did not report the matter to upper management. For the next few weeks, Freeman repeatedly taunted Owens, and Owens repeatedly threatened Freeman with violence.
On May 27, 1999, as Owens walked through the garage with Ike Johnson, a co-worker, Freeman told them, "I'm the man back here. I'll beat anybody down." Id. at 63. Owens responded, "Here I am, so you do it then, beat me down." Id. at 65. Owens moved toward Freeman, reaching into his front pocket as if going for the knife that he was known to carry, and with which he admits he had threatened Freeman on prior occasions. According to several witnesses, at some point during their verbal sparring, Owens pushed or bumped Freeman. Owens denies this account, and claims that Ike Johnson intervened and led Owens away before any physical contact occurred. Owens does admit to acting in anger. ( See Pleading No. 12, Ex. 50, Statement of Geary Owens at 8, attached to Defendant's Memorandum.)
Freeman reported the incident to Fleet Operations Manager Randy Fletcher and Department Head Kent Cash. The City conducted an investigation, obtained statements and audiotaped interviews from Freeman, Johnson, Owens and other witnesses. The City ultimately credited the statements of the witnesses, including Abraham Mandujano and Charles Pierce, who claimed that they saw Owens bump or push Freeman. As of June 21, 1999, the City had completed its investigation and decided to discharge Owens for violation of the Workplace Violence policy. Under a milder horseplay policy, Freeman received a final written warning for slapping Owens in April and Harris received a final written warning for having failed to report the slapping incident. Owens initiated a grievance but did not appear at the grievance hearing and the termination was upheld. Owens subsequently filed this action, seeking relief under 42 U.S.C. § 2000e, et seq., for race discrimination and retaliatory discharge and under 42 U.S.C. § 1981 for race discrimination.
Summary Judgment Standard
A party is entitled to judgment as a matter of law upon a showing that "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. A genuine issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a forecast of evidence on summary judgment review, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party. The court may not weigh conflicting evidence or resolve disputed facts. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
When the moving party has carried its burden, the party opposing the motion for summary judgment may not merely rest on its pleadings, but must provide evidence or point to evidence already in the record, properly authenticated pursuant to Rule 56(e), that would be sufficient to support a jury verdict in its favor. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 255; Orsi v. Kirkwood, 999 F.2d 86 (4th Cir. 1993). The nonmoving party must show more than some "metaphysical doubt" that genuine and material factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts am undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
Analysis
A. Plaintiff's Race Discrimination Claim under Title VII
Owens first alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. That section makes it unlawful for an employer to discharge an employee or discriminate in "compensation, terms, conditions, or privileges of employment" because of race. 42 U.S.C. § 2000e-2 (a). In order to prove a claim of race discrimination, a plaintiff can proceed with either direct evidence or with circumstantial evidence under the method of proof established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Moore v. City of Charlotte, NC., 754 F.2d 1100, 1104-05 (4th Cir.), cert. denied, 472 U.S. 1021 (1985). The McDonnell Douglas proof scheme places the initial burden on the plaintiff to prove a prima facie case of discrimination. To establish a prima facie case, the plaintiff must prove a set of facts from which a reasonable jury could conclude that, absent any further explanation, the adverse employment action was the product of racial discrimination. Duke v. Uniroyal, Inc., 928 F.2d 1413, 1418 (4th Cir.), cert. denied, 502 U.S. 963 (1991). In discriminatory discharge cases like the instant one, the plaintiff establishes a prima facie case by showing (1) that he is a member of a protected minority, (2) that he was disciplined, (3) that a person of another race engaged in similar conduct, and (4) that the disciplinary measures taken against plaintiff were harsher than those taken against the non-minority. Moore, 754 F.2d at 1105-1106.
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to advance a legitimate, non-discriminatory reason for the discharge. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993). If the defendant makes this showing, the plaintiff must then present evidence to prove that the defendant's articulated reason was a pretext for unlawful discrimination. See id. at 507-08. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Although the McDonnell Douglas evidentiary scheme involves shifting burdens, such discrimination cases may nevertheless be evaluated under established summary judgment principles. Mitchell, 12 F.3d at 1315. "[T]he plaintiff can fail to meet his burden, not only by failing to establish a prima facie case, but also by failing to show a genuine factual dispute over the employer's legitimate nondiscriminatory explanation." Id. at 1317. Defendant has moved for summary judgment on grounds that Plaintiff has neither presented sufficient evidence to establish a prima facie case under Title VII nor presented evidence to show that Defendant's legitimate non-discriminatory reason for terminating Plaintiff was a pretext. This court agrees on both arguments.
Plaintiff relies on circumstantial evidence of disparate treatment to prove race discrimination. To establish his prima facie case, Plaintiff points to several incidents that he claims involve similar conduct, for which the offenders were sanctioned less harshly than Plaintiff. While precise equivalence is not required, the incidents must be comparably serious given the level of harm caused and the culpability of the offenders. See Moore, 754 F.2d at 1107-1109. Plaintiff was terminated for violating Defendant's Workplace Violence Policy. That policy states that, "[v]iolence and threats of violence in the workplace will not be tolerated." (Pleading No. 12, Ex. 2.) A threat is defined as an "[e]xpression of intent to inflict injury," while violence is defined as the "[u]se of physical force to injure or abuse." Id. The policy states that violations are serious misconduct and that "[d]isciplinary action up to and including dismissal will be taken." Id. at 3. This policy became effective on August 22, 1996 and was in effect when Plaintiff was terminated.
The first allegedly comparable incident referenced by Plaintiff is an argument between a Caucasian co-worker, Rusty Phelps, and an African American co-worker, Alton Wall, that occurred on July 16, 1998. According to Plaintiff, the incident involves a violation of Defendant's Workplace Violence Policy by a Caucasian employee, who was punished less severely than Plaintiff. As found by the City during grievance proceedings, and by another Magistrate Judge in this district in an action by Wall against the City, Phelps' conduct was not threatening or undertaken in anger: "Phelps' behavior can be appropriately characterized as rude, childish, invasive, provocative, and even aggressive. However, it was not threatening within the meaning of defendant's Workplace Violence Policy because he made no actual or implied statement of any intent to inflict injury on [Wall]." See Wall v. City of Durham, 169 F. Supp.2d 466, 475-76 (M.D.N.C. 2001). Plaintiff Owens' behavior in the case at bar, on the other hand, did violate the policy because he used physical force against Freeman and/or expressed the intent to injure him. Indeed, while Owens denies that he actually touched Freeman, he candidly admits to making verbal threats in extreme anger. Phelps' conduct in 1998 is thus not comparable to Plaintiffs for Title VII purposes.
The second incident cited by Owens as comparable is one that occurred in 1994 when Rusty Phelps and Wayne Shotwell, while test driving a police car, activated a blue light and pulled over a motorist. This incident varies in a number of important respects from Owens' incident. First, it occurred before the Workplace Violence Policy took effect. In any event, it did not involve violence or a threat of violence to others and, therefore, was different in kind from Owens' conduct. This makes it difficult, if not impossible, to compare the two incidents in any meaningful way. The blue light incident cannot serve as a "comparable incident."
Finally, Plaintiff cites as a comparable incident the occurrence in April 1999 when Freeman slapped Plaintiff to wake him up. Freeman, like Plaintiff, is an African American. Freeman is not a person outside of Plaintiff's protected class for purposes of establishing a prima facie case. Moreover, Freeman's conduct was not motivated by anger and was not threatening, as was Plaintiffs in the May 1999 altercation.
Plaintiff cannot establish a prima facie case of disparate treatment because he fails to demonstrate that persons outside of his protected class engaged in comparable misconduct but were not terminated. Plaintiff's Title VII claim does not survive the scrutiny of Defendant's summary judgment motion.
B. Plaintiff's Retaliation Claim under Title VII
Title VII makes it illegal to discriminate against an employee because that person opposes any employment practice made illegal under Title VII, 42 U.S.C. § 2000e-3 (a). Plaintiff's second claim for relief is based on an allegation that he was fired in retaliation for his previous complaints that Kent Cash had engaged in illegal race discrimination. The McDonnell Douglas burden shifting scheme that applied to Plaintiff's disparate treatment claim applies to this claim as well. Karpel v. Inova Health System Services, 134 F.3d 1222, 1228 (4th Cir. 1998). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in protected activity, (2) that he was subjected to an adverse employment action, and (3) that there was a causal link between the activity and the adverse action. Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th Cir. 1997). If the prima facie case is established, the burden then shifts to the defendant to give a legitimate reason other than retaliation for taking the adverse action. If defendant does so, plaintiff must show that this reason is false and that retaliation was the real motivation for the adverse action. In appropriate circumstances, a prima facie case along with evidence that the proffered legitimate reason was false may be enough to allow a trier of fact to conclude that the employer violated the law. EEOC v. Sears Roebuck and Co., 243 F.3d 846, 852 (4th Cir. 2001).
Plaintiff satisfies the first two elements of the prima facie case for retaliation. Plaintiff engaged in protected activity — he complained of race discrimination — and he suffered an adverse employment action — his June 1999 termination. The contested element is whether there is a causal relationship between Plaintiff's complaints and his termination.
Causation is a difficult element to prove. Temporal proximity is a common and important means of proving a causal connection in retaliation cases but, as Owens concedes, more than four years passed between his 1994 grievance and his termination. The Fourth Circuit has stated that even a thirteen-month gap is too long absent other evidence of retaliation. Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). Plaintiff's March 1999 complaint would be temporally significant, but even if Plaintiff had sufficient evidence to establish a prima facie case of retaliation, he has advanced insufficient evidence to show a genuine factual dispute over the City's legitimate non-discriminatory reason for terminating him (his violation of the Workplace Violence policy).
Notably, Owens conceded that in March 1999 he did not actually file a grievance, the complaint was not sufficiently specific to result in an investigation by the EEOC, and he effectively abandoned the complaint. (Pleading No. 12, Dep. of Owens at 41-42.) The court assumes, nevertheless, that the complaint was protected activity and the temporal relation between it and the adverse employment action make out a prima facie case of retaliation.
As additional purported evidence of retaliation, Owens states that 46% of the employees who signed the 1994 petition have since been terminated or involuntarily transferred, while only 20% of the employees who did not sign the petition have been terminated or transferred. In relying on this evidence, Plaintiff simply cites the raw numbers and asks the Court to draw an inference of discrimination. He offers no properly authenticated evidence relating to these figures. In any event, the numbers presented are not so overwhelmingly disparate as to permit an inference of retaliatory intent. See Wall, 169 F. Supp.2d at 484.
This court finds that Plaintiff has failed to present evidence showing that Defendant's proffered reason for his termination, his violation of the Workplace Violence policy, was a pretext for retaliation. Moreover, evidence of periodic evaluations, signed by Cash, rating Plaintiff's work as "outstanding" undermines any claim that Cash acted with retaliatory animus.
C. Plaintiff's Discrimination Claim under 42 U.S.C. § 1981
Plaintiff's final claim is raised under 42 U.S.C. § 1981 and seeks to hold the City liable for race discrimination. This claim is judged using the same standards as Plaintiff's Title VII claim. Gairola v. Commonwealth of Virginia Dept. of General Services, 753 F.2d 1281, 1285 (4th Cir. 1985). Therefore, his § 1981 claim fails for the same reasons as the Title VII claim and is dismissed.
Conclusion
For reasons set forth above. IT IS ORDERED that Defendant's motion for summary judgment (Pleading No. 11) be GRANTED and that this action be dismissed with prejudice. A judgment dismissing this action with prejudice will be entered contemporaneously with this Memorandum Opinion and Order.
JUDGMENT
For the reasons set forth in the Memorandum Opinion and Order filed contemporaneously with this Judgment,
IT IS HEREBY ORDERED AND ADJUDGED that this action be, and the same hereby is. dismissed with prejudice.