Opinion
No. 3:01-CV-0854-P
February 5, 2003
MEMORANDUM OPINION AND ORDER
Now before the Court for its consideration are Defendants' Motion for Summary Judgment, Plaintiff's Motion to Strike, and Defendants' Motion to Strike. After careful consideration of the Parties' briefing and the applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiff's Motion to Strike, and DENIES as MOOT Defendants' Motion to Strike.
I. BACKGROUND AND PROCEDURAL HISTORY.
Plaintiff Ron Pegram ("Pegram" or "Plaintiff") first filed this suit on May 4, 2001, alleging claims of employment discrimination based on race, breach of contract, and promissory estoppel. Plaintiff amended his complaint, adding claims of employment discrimination based upon a disability and an ERISA claim.
References herein to Plaintiff's First Amended Complaint will be cited as "Pl.'s Compl."
The Court refused to allow Plaintiff to add a claim of employment discrimination due to national origin. (Court Order of Feb. 6, 2002.) Nonetheless, Defendants move for summary judgment on this claim. Insofar as Defendants seek summary judgment on this cause of action, their motion is DENIED as MOOT.
Plaintiff, an African-American male, began working for Defendant Honeywell in August 1991. (Pl.'s Compl. ¶¶ 3.01-3.02; Pl.'s App. at 1.) Plaintiff was originally hired as an Original Equipment Manufacturer ("OEM") Account Manager. (Pl.'s Compl. ¶ 3.01; Pl.'s Resp. at 1; Pl.'s App. at 1.) In 1995 Plaintiff was promoted to the position of Total Plant Account Manager ("TPAM"). (Pl.'s App. at 14-15.) In August 2000, Plaintiff was again promoted to the position of TPAM in the power industry, or the Industrial Automation and Control ("IAC") division. (Pl.'s App. at 16-17; Pl.'s Resp. at 1-2.) Plaintiff contends he was the only African-American employee who held a TPAM position in Dallas during his tenure, and that there are no African American employees in the TPAM position in Honeywell's eastern region. (Pl.'s App. at 2.)
Honeywell underwent a reorganization of its IAC division in the fall of 2000. (Defs.' App. at 56-57, 112-13; Pl.'s Resp. at 2.) This reorganization affected who supervised Plaintiff's employment. After the reorganization, Pegram reported to David Spencer, the division's Regional Sales Manager for Texas, Oklahoma, and Arkansas. (Defs.' App. at 56-57, 114, 130-31, 137, 203.) Spencer reported to the Solutions Sales Director for the eastern sales region, Guy Grumbles. (Defs.' App. at 56, 108-09, 111; Pl.'s Resp. at 2.)
Pegram contends that throughout his tenure at Honeywell, Pegram was not allowed to interface with CEOs and COOs of large companies. (Pl.'s App. at 13.) He alleges that if an account rose to that level, it would be transitioned to a Caucasian. (Pl.'s App. at 13.) Plaintiff also complains that he was not allowed training opportunities or admission to the Honeywell MBA program, because of his race. (Pl.'s App. at 13, 61-62.)
Between August 2000 and December 2000, Pegram worked as a TPAM in Honeywell's IAC division. During that period, Pegram, whose job involved sales, had a yearly sales quota in the amount of $3-4 million. (Pl.'s App. at 126.) According to Plaintiff, between August and December 2000, Pegram had sales of $6.89 million. (Pl.'s App. at 127.)
However, Plaintiff's new supervisor, Grumbles, expressed concerns about Pegram's ability to satisfactorily do his work as a TPAM in the power industry, and Pegram learned of these concerns in October 2000. (Pl.'s App. at 19-21.) In early December 2000, Spencer and Grumbles began trying to convince Pegram to take a position of Service Account Manager ("SAM"). (Pl.'s App. at 3, 24.)
On December 14, Plaintiff was involved in an automobile accident, which aggravated a pre-existing back condition. (Pl.'s App. at 3.) Subsequent to the accident, Spencer and Grumbles told Plaintiff they had decided to transfer him to a SAM position. (Pl.'s App. at 25.) Spencer and Grumbles hired Dick Watt, a Caucasian male, to take the TPAM position made available when Pegram was transferred to the SAM position. (Pl.'s App. at 3, 24, 00.)
The SAM position that Pegram moved into also included small project sales, leading some to describe Pegram's first position after the IAC TPAM as a "hybrid SAM" position. (Defs.' App. at 58-59, 70-71, 137-42, 155-56.) Around the first of February 2001, Spencer told Pegram that he would be assuming purely SAM duties. (Defs.' App. at 59.) Plaintiff expressed to Spencer, Grumbles and others on several occasions that he "was not comfortable" in the SAM position and was unwilling to continue in the SAM position. (Pl.'s App. at 25, 36; Defs.' App. at 58-60, 73, 100, 141, 151-153, 208, 232.)
Pegram wanted to continue working as a TPAM, but Spencer advised Pegram that there were no open TPAM positions in his region at that time. (Defs.' App. at 60.) Spencer suggested to Pegram that Pegram try to locate a TPAM position elsewhere in the company and Spencer also offered to try to find a TPAM position for Pegram himself. (Defs.' App. at 60.) Pegram tried to find another TPAM position during January, February and March 2000. (Pl.'s App. at 31-32.)
According to Defendants, Spencer believed that if Pegram did not find another position before March 30, 2000, Pegram should be removed from the SAM position on that date. (Defs.' App. at 60, 151-52.) On March 12, 2000 Spencer and Pegram had a conversation during which Spencer explained that he would be filling Pegram's SAM position with someone else by the end of March. (Pl.'s App. at 30.) Pegram agreed to meet with Spencer, Grumbles, and Linda Pearson of Human Resources on Houston on March 14. (Pl.'s App. at 97.) Pegram believed that the purpose of the meeting in Houston was to discuss his transfer to another TPAM position. (Pl.'s App. at 30-31.) Spencer wrote a memorandum, dated March 12, 2001, to Plaintiff stating that "I have to move forward quickly to fill your position. . . . [I] have not been successful in finding you a TPAM job elsewhere. I hope that you are able to quickly locate a job that will make you happy, however in parallel I will be looking for a candidate to assume your position and responsibilities by the end of this month, 3/31/01." (Defs.' App. at 62.)
On March 13, 2001, the following day, Plaintiff sent an email to Spencer and Linda Pearson, a member of Honeywell's Human Resources Department. The email explained that he had scheduled back surgery on April 16, 2001, and that he would need short term disability benefits. (Pl.'s App. at 4, 205.)
On March 14, 2001, Plaintiff, Spencer, and Pearson met in Houston to discuss Pegram's employment situation. (Defs.' App. at 60-61, 87-88, 186-87.) Spencer told Plaintiff the substance of the March 12, 2001 memo, that is, that there were no TPAM positions available, and that he needed to staff the SAM position and planned to bring in someone new by the end of March. (Defs.' App. at 60-61, 88, 161-64, 187.)
Plaintiff maintains that he was fired at this meeting, told that he would not receive disability benefits, and needed to apply for COBRA coverage for his health insurance. (Pl.'s App. at 4, 48.) Plaintiff subsequently applied for short term disability benefits, but his claim was denied. (Pl.'s App. at 4.)
On April 5, 2001, Pegram filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR") alleging employment discrimination based upon race and disability. (Pl.'s App. at 215-16.) This suit followed and now Defendants move for summary judgment on all of Plaintiff's claims.
II. SUMMARY JUDGMENT STANDARD.
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); See 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. See 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. See 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. See 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. See 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. See id. at 248-50; 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. See 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 is case, and on which he bears the burden of proof at trial, summary judgment must be granted. See Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. See 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.
III. EMPLOYMENT DISCRIMINATION.
This case involves claims of racial discrimination pursuant to 42 U.S.C. § 1981 (Count One) and the Texas Commission on Human Rights Act ("TCHRA") (Count Two) and disability discrimination in violation of the TCHRA (Count Five). These claims are subject to the McDonnell-Douglas burden-shifting analysis to prove discrimination.
In their motion, Defendants seek dismissal of Plaintiffs "protected-activity discrimination claim" under the TCHRA because Plaintiff allegedly failed to exhaust his administrative remedies. (Defs.' Mot. at 10-11.) Presumably, a "protected-activity discrimination claim" is synonymous with a retaliation claim. Apparently, Defendants read Plaintiff's First Amended Complaint as containing a retaliation claim. ( See Pl.'s Compl. at 5, 10.) Yet, according to Plaintiff's EEOC charge (Pl.'s App. at 215), Plaintiff's response to Defendants' motion for summary judgment (Pl.'s Resp. at 15), and the Parties' Joint Pretrial Order (JPO at 2), Plaintiff has not alleged a retaliation claim, only claims based on race and disability discrimination. To the extent Plaintiff argues that he has alleged a retaliation claim, his claim fails because he has not exhausted his administrative remedies. Plaintiffs retaliation claim cannot stand for the same reasons Plaintiff's national origin claim cannot stand. ( See Court Order of February 6, 2002).
A. Standard of Proof for Discrimination.
Claims under Title VII and the ADA require a showing that an employer discriminated against an employee based upon a protected trait. The burden-shifting analysis known as the McDonnell-Douglas analysis has also been applied by the Fifth Circuit to § 1981 and TCHRA claims. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997) (citing LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996)) (§ 1981 claims); NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999) (TCHRA claims).
When a plaintiff alleges discrimination, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) ( citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiffs race or disability, must have "actually played a role in the employer's decision-making process and had a determinative influence on the outcome." Id. The plaintiff must prove this 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. See 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. See Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). The prima facie case, once established, raises a presumption of discrimination that the defendant may rebut by articulating a legitimate, nondiscriminatory reason for its actions. See id. This burden on the employer is only one of production, not of persuasion, involving no credibility assessments. See 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. See id.
A plaintiff can establish a prima facie case of discriminatory intent by demonstrating that (1) he is a member of a protected class; (2) he was qualified for his position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class. See Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
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 —once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision — 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 were a pretext for discrimination. See 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. See 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. See 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. See id. Regardless, at this summary judgment stage, Plaintiff need only raise a genuine issue of material fact. See Khanna v. Park Place Motorcars of Houston, Ltd., NO. CIV.A. 3:99-CV-0135, 2000 WL 1801850, at *2 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.).
B. Statute of Limitations Defense.
Defendants argue that before reaching any of the substantive issues, the Court should bar some of Plaintiff'sclaims because they were not filed within the relevant statute of limitations period. Defendants note that Plaintiff complains of discrimination that occurred between 1993 and 1997 and from a period from October 2000 until March 30, 2001. (Defs.' Mot. at 10.)
Section 1981 claims are subject to a two-year statute of limitations period. "The appropriate state statute determines the limitations period for a claim predicated upon § 1981. Under Texas law, the two-year limitations period . . . applies to section 1981 actions. The filing of a charge with the EEOC does not toll the statute of limitations applicable to a section 1981 claim based on the same discriminatory event." Gonzales v. Firestone Tire Rubber Co., 610 F.2d 241, 250 (5th Cir. 1980). Accordingly, Plaintiff'sclaims under § 1981 are only actionable if they accrued after May 4, 1999.
Plaintiff argues that all of his claims are actionable under the theory of a "continuing violation." Plaintiff complains of several practices that fall outside of the two-year period that he claims should be considered timely because of the continuing violation doctrine. Specifically, Plaintiff alleges that he was denied interaction with clients because of his race. (Pl.'s Resp. at 4.) Plaintiff also alleges that he was denied training opportunities and the approval to participate in the Honeywell MBA program. ( Id.) The remainder of Plaintiffs allegations are timely brought.
"Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. He must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) (citations omitted). The Fifth Circuit in Huckabay found that a demotion that occurred when it would have ordinarily been time-barred was not saved by the continuing violation doctrine when the discrimination occurred after the demotion and the complaint about such discrimination was timely. See id. at 239-40. However, here, Plaintiffs transition from TPAM to SAM occurred within the limitations period and thus, the question is whether earlier alleged discrimination is part of a pattern that culminated in Plaintiff's transfer.
Plaintiff argues that claims of failure to train, Defendants' transfer of Plaintiff's accounts to his white co-workers, and Defendants' failure to allow Plaintiff to participate in the Honeywell MBA program are the sorts of ongoing discrimination that were arguably part of a pattern that concluded in his transfer to the SAM position. However, the Court finds that these are distinct and discrete occurrences that are time-barred. See, e.g., Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (holding that under Title VII, discrete acts of discrimination were not covered by the continuing violation doctrine, but that hostile work environment claims may be). Further, Plaintiff acknowledges that he complained of discrimination earlier. He filed a grievance in August of 1997. (Defs.' App. at 191.) Plaintiff's knowledge of the discrimination at that time indicates that these were discrete events of discrimination and demonstrates that this is not a "continuing violation" that justifies allowing these otherwise time-barred claims into the instant case. Therefore, the Court GRANTS Defendants' summary judgment motion with respect to Plaintiff's discrimination claims that predate May 4, 1999.
Plaintiff also has no "continuing violation" defense for earlier claims filed pursuant to the TCHRA. The Supreme Court has found that the continuing violation doctrine is an equitable exception to the federal limitations period and specifically rejected arguments that the filing requirements are jurisdictional. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982). To file a timely claim under the TCHRA, a plaintiff must file with the EEOC or the TCHR within 180 days after the alleged unlawful employment action. The Texas Supreme Court has noted that this time limit is "mandatory and jurisdictional." Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); see also Pope v. MCI Telecommunications Corp., 937 F.2d 258, 264 (5th Cir. 1991). Thus the 180-day filing requirement is jurisdictional and distinct from the statute of limitations governing § 1981. Accordingly, the Court considers only those state law claims that are based upon actions that occurred after October 7, 2000 and GRANTS summary judgment to Defendants for any claim that occurred before October 7, 2000.
C. Plaintiff's Race Discrimination Claim.
1. Legal Standard.
This is a race discrimination case based on 42 U.S.C. § 1981 and the TCHRA. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). Section 1981 provides that all persons in the United States shall have the same contractual rights as white citizens. See 42 U.S.C. § 1981(a). "The elements of a claim of discrimination under Title VII, under section 1981, and under the TCHRA are identical." Patitu v. Nationsbank of Texas, 90 F. Supp.2d 781, 788 (S.D. Tex. 2000) (citing Anderson v. Douglas Lomason Co., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999)). Thus, claims of racial discrimination brought under § 1981 and the TCHRA are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII. See Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 422 n. 1 (5th Cir. 2000); Gant v. Sabine Pilots, 204 F. Supp.2d 977, 980 (E.D. Tex. 2002).
The Civil Rights Act of 1866 [ 42 U.S.C. § 1981] prohibits discrimination on the basis of race. See Davies v. Polyscience, Inc., 126 F. Supp.2d 391, 393 (E.D.Pa. 2001) (citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 302 (1994)). Section 1981 liability does not extend to discrimination based on disability. Id. (citing Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997). The statute provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981.
A plaintiff alleging employment discrimination under § 1981 and the TCHRA must prove discriminatory intent. See Zachary v. Texaco Exploration Production Inc., 185 F.R.D. 230, 236-37 (5th Cir. 1999). A plaintiff can establish a prima facie case of discriminatory intent by demonstrating that (1) he is a member of a protected class; (2) he was qualified for his position; (3) he was subjected to an adverse employment action; and (4) he was replaced by someone outside the protected class. See Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
Pursuant to the Court's request, the Parties filed supplemental briefing analyzing whether Plaintiff Ron Pegram's transfer constituted an "adverse employment action."
A prima facie Title VII discrimination case requires showing not just an employment action, but an adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708-09 (5th Cir.), cert. denied, 522 U.S. 932 (1997). An employment action that is neutral or beneficial is insufficient to establish a prima facie case. Whether an employment action is "adverse" is an objective determination. See Craven v. Texas Dep't of Criminal Justice, 151 F. Supp.2d 757, 766 n. 7 (N.D. Tex. 2001) (Lindsay, J.).
Many courts have analyzed whether a transfer constitutes an adverse employment action. "If a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action." Sanchez v. Denver Public Schools, 164 F.3d 527, 532 n. 6 (10th Cir. 1998); see also Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1448-49 (11th Cir. 1998).
Most cases addressing whether a lateral transfer (or denial thereof) constitutes an adverse employment action for purposes of a Title VII discrimination claim have concluded that it does not. See Craven, 151 F. Supp.2d at 765-69 (transfer to another shift that resulted in a difference in working hours does not constitute adverse employment action) (collecting and citing cases). When courts have held a lateral transfer to be an "adverse employment action," the position sought or lost has been objectively better in some respect. See id. (collecting and citing cases). Thus, Title VII discrimination claims based on a transfer should be limited to:
Courts have also frequently found that lateral transfers do not constitute an "adverse employment action" in discrimination cases brought under the closely-related ADEA, 29 U.S.C. § 621 et seq. See Craven, 151 F. Supp.2d at 766-67 (collecting and citing cases).
a materially adverse change in the terms and conditions of employment [which] must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Crady v. Liberty Nat. Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993). Therefore, to avoid summary judgment on a transfer claim under Title VII discrimination, Pegram must raise a fact issue showing that the position from which he was transferred was objectively better than the position to which he was transferred, in some non-trivial way.
2. Motions to Strike.
The thrust of Plaintiff's argument is that the transfer from TPAM to SAM constituted an adverse employment action because the incentive compensation structure for SAMs was less than that for TPAMs. In Plaintiff'sMotion to Strike, Plaintiff contends that Defendants' Exhibit 3, which is a 2001 commission plan, should be stricken because this was not the plan in effect when Pegram was transferred in December 2000. (Pl.'s Resp. at 2-3.) Because the Court must determine whether the incentive pay for TPAMs was objectively better than the incentive pay for SAMs, the Court must consider the incentive structure that would have been in effect had Pegram accepted the transfer and remained employed as a SAM. Pegram was transferred in December of 2000. Therefore, the 2001 commission plan that is Defendants' Exhibit 3 would have been the plan in effect during Pegram's tenure as a SAM, had he continued as a SAM.
Plaintiff also seeks to have Vickie Pickering's declaration stricken from the record because Pickering was not listed by Defendants as a person with knowledge prior to the March 29, 2002 discovery deadline and Plaintiff has not had the opportunity to depose her. (Pl.'s Resp. at 3.)
Pickering was not listed by Defendants as a person with knowledge until October 11, 2002 because Defendants did not base their defense on lack of an "adverse employment action" — the issue to which Pickering testified. Rather the Court raised the issue on September 19, 2002 and instructed the Parties to provide evidence and briefing on this issue. In order to comply with the Court's order, Defendants were required to use the testimony of Pickering, who was the Honeywell employee most knowledgeable about the incentive plans at issue. Defendants did not know they needed Pickering's testimony until the Court requested the evidence. Moreover, Plaintiff did not seek to take Pickering's deposition prior to his summary judgment response deadline of October 16, 2002 and did not ask for an extension of his response deadline to enable him to take the deposition of Pickering. Therefore, Plaintiff'sMotion to Strike is hereby DENIED.
With respect to Defendants' Motion to Strike, Defendants object to Plaintiff's characterization of his alleged commissions as "earned" (Defs.' Mot. to Strike at 2) and to Plaintiff's allegation that upon his "demotion," Defendants rescinded commissions to which Plaintiff was entitled. (Defs.' Mot. to Strike at 2-3; Pl.'s Supp. App. at 2.) These statements to which Defendants object, if considered by the Court, would not affect the outcome of its ruling. Therefore, Defendants' Motion to Strike is hereby DENIED as MOOT.
3. Analysis of Plaintiff's Race Discrimination Claim.
Plaintiff argues that his transfer constituted an adverse employment action because the incentive compensation structure for SAMs was less than that for TPAMs. It is not enough that a transfer causes a plaintiff to receive less in commission payments due to an initial depression in sales. See Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 273 (7th Cir. 1996). Whereas, "[a] cut in base pay not offset by an increase in some other form of compensation would be a demotion, and hence a materially adverse employment action . . . so [too] would be a cut in the commission rate (subject to the same qualification about offsets)." See id. at 274. Therefore, if Plaintiff can raise a fact issue that he received a cut in his commission rate without receiving an offset by an increase in some other form of compensation, Plaintiff can withstand summary judgment.
The problem with Plaintiff's argument is that he has not established that he received a cut in his commission rate. Plaintiff never compares the 2001 TPAM commission structure with the 2001 SAM commission structure. (Defs.' Supp. Resp. at 3-7.) He only compares the 2000 TPAM structure (that he fell under as a TPAM) with the 2001 SAM structure (that he fell under as a SAM). The Court must determine whether, objectively, Pegram received an adverse employment action. But the Court cannot resolve that issue without comparing the two positions under the compensation plans in effect during the same year — which must be 2001 — the year Pegram's transfer took effect.
The only evidence Plaintiff presents in support of his argument is his own subjective belief that transferring from a TPAM position to a SAM position is a demotion. (Pl.'s App. at 26.) However, the fact that the employee views the transfer negatively does not of itself render the transfer an adverse employment action. See Craven, 151 F. Supp.2d at 766 n. 7; Sanchez, 164 F.3d at 532 n. 6.
Moreover, according to Pickering's declaration (Defs.' Supp. App. at 2), the final approved incentive compensation plan for 2001 for TPAMs and SAMs is the same — and is attached as Defendants' Exhibit 3. This evidence is not controverted by Plaintiff. For these reasons, Plaintiff has failed to raised a fact issue demonstrating that he suffered an adverse employment action.
D. Plaintiff's Disability Discrimination Claim.
1. Legal Standard.
Plaintiff has also filed a claim of disability discrimination in violation of the TCHRA. See Tex. Labor Code § 21.001 et seq. To sustain an action for disability discrimination under the TCHRA, a plaintiff must establish three elements: (1) that he is a disabled person as defined in the TCHRA; (2) that he was discriminated against because of his disability; and (3) that the employment decision of which the plaintiff complains was based solely on his disability. See McIntyre v. Kroger Co., 863 F. Supp. 355, 357-58 (N.D. Tex. 1994) (Buchmeyer, J.).
To the extent Plaintiff is alleging that he was transferred from TPAM to SAM because of his disability, his claim fails because, as stated supra, Plaintiff has not established that his transfer constituted an adverse employment action.
The threshold issue in a plaintiff's prima facie case is a showing that he suffers from a disability protected by the TCHRA. See Tex. Labor Code Ann. § 21.051 (Vernon 2003) (formerly Tex. Rev. Civ. Stat. Ann. art. 5221k.); McIntyre, 863 F. Supp. at 357; Garcia v. Allen, 28 S.W.3d 587, 596 (Tex.App.-Corpus Christi 2000, pet denied). Section 21.002 of the Texas Labor Code defines "disability" as "[1] a mental or physical impairment that substantially limits at least one major life activity of that individual, [2] a record of such an impairment, or [3] being regarded as having such an impairment." Tex. Labor Code Ann. § 21.002(6). In other words, "a person is defined as disabled if he either (1) is actually disabled, (2) is regarded as being disabled, or (3) has a record of being disabled." See Union Carbide v. Mayfield, 66 S.W.3d 354, 360 (Tex.App.-Corpus Christi 2001, pet. denied). "For all three, the word 'disabled' is defined the same — i.e. having a mental or physical impairment that substantially limits at least one major life activity." Id.
The EEOC defines the term "substantially limits" as being "unable to perform a major life activity that the average person in the general population can perform or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1). The EEOC regulations list the following factors that should be considered in determining whether an individual is substantially limited in a major life activity: (I) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. See 29 C.F.R. § 1630(j)(2).
"With respect to the major life activity of working, the term 'substantially limits' means "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(I); See Mayfield, 66 S.W.3d at 361.
2. Analysis of Plaintiff'sDisability Discrimination Claim.
Plaintiff argues that he had a disability because he suffered from a degenerative disc disease that substantially limited one or more of his major life activities, including working. (Pl.'s Resp. at 20.) Plaintiff contends that his back injury caused him difficulty in climbing stairs, walking, standing for longer than five minutes, sitting for longer than five minutes, balance, and pain. (Pl.'s Resp. at 20, Pl.'s Compl. ¶ 5.03, Pl.'s App. at 3.)
Defendants argue that Plaintiff's disability discrimination claim fails because "there is no evidence that Pegram's back impairment substantially limited his ability to work or perform other major life activities during his employment with Honeywell." (Defs.' Mot. at 18.) Defendants further argue that "even if Pegram's back impairment affected his ability to sit or stand for long periods, climb stairs, or lift heavy objects during his employment, such limitations are not substantial and thus do not transform his impairment into a 'disability.'" (Defs.' Mot. at 18.)
Plaintiff's alleged physical limitations may qualify as an impairment, which Defendants do not dispute. (Defs.' Mot. at 17.) Yet an impairment alone does not rise to the level of a disability. See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 63 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (citing Anderson v. Gus Mayer Boston Store, 924 F. Supp. 763, 773 (E.D. Tex. 1996)). A disability as contemplated by the TCHRA "must be one which is generally perceived as severely limiting [plaintiff] in performing work-related functions in general." Azubuike, 970 S.W.2d at 64 (citing Chevron Corp. v. Redmon, 745 S.W.2d 314, 318 (Tex. 1987)).
Plaintiff's case is completely devoid of any evidence — other than Plaintiff's own conclusory allegation — that Plaintiff's back injury substantially impaired his ability to work or perform other major life activities. In fact, as far as the Court can tell from the evidence before it, Plaintiff worked at Honeywell up until the date of his termination. ( See, e.g., Pl.'s App. at 248-49.) Based on the sparse evidence before the Court, it is impossible to ascertain the nature and severity of the impairment suffered by Plaintiff between 1995 and his car accident in December 2000, the nature and severity of the impairment suffered by Plaintiff as a result of the car accident in December 2000, and the nature and severity of the impairment suffered by Plaintiff following the car accident in December 2000 until his termination on March 14, 2001. (Pl.'s App. at 2-4.) Nor has Plaintiff presented evidence concerning the duration or expected duration of the impairment or the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. See Mayfield, 66 S.W.3d at 359.
There is also no evidence — other than Plaintiff's own conclusory statements — that Plaintiff was severely restricted in his ability to perform other major life activities. Plaintiff has failed to proffer any evidence indicating that he was, at the time of his termination, unable to perform a major life activity or was significantly restricted as to the condition, manner or duration under he could perform a particular major life activity.
A claimant alleging disability discrimination must prove that he was disabled at the time of the alleged discriminatory act. See Eber v. Harris County Hosp. Dist., 130 F. Supp.2d 847, 858 (S.D. Tex. 2001).
Plaintiff also alleges that he satisfies the "disability" requirement because he was 'regarded as' having a disability. (Pl.'s Resp. at 20.) Plaintiff alleges that Defendants 'demoted' Plaintiff after learning of his back injury in December 2000 and terminated Plaintiff after learning of his surgery in March 2001. (Pl.'s Resp. at 20.) From this, Plaintiff concludes that Defendants regarded him as disabled. (Pl.'s Resp. at 20.)
Under the ADA and the TCHRA, "an individual may qualify as 'disabled' if he or she is 'regarded as' having an impairment that substantially limits one or more major life activities. Tex. Labor Code Ann. § 21.002(6). The United States Supreme Court has held that there are two "apparent ways in which individuals may fall within this statutory definition: (1) a[n] [employer] mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a[n] [employer] mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). "In both cases, it is necessary that [the employer] entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often 'resul[t] from stereotypic assumptions not truly indicative of . . . individual ability.'" Id.
In determining whether a plaintiff has a "disability" under the TCHRA, we may look to the ADA and cases decided thereunder for guidance. See Azubuike, 970 S.W.2d at 63.
To establish a prima facie showing of disability under the 'regarded as' prong, a plaintiff must produce sufficient evidence for a reasonable trier of fact to conclude that his employer perceived him as having an 'impairment,' and that this impairment, if it existed as the employer perceived it, would have substantially limited one or more of the plaintiffs major life activities. See Deas v. River West, L.P., 152 F.3d 471, 476 (5th Gir. 1998).
Plaintiff's allegation that he was disabled because he was 'regarded as' having a disability fails because he has not established that either of these scenarios apply to him. Plaintiff does not fall under the first category ( i.e. has no impairment at all but is regarded by the employer as having a substantially limiting impairment) because it is undisputed that Plaintiff had an impairment. Plaintiff does not fall under the second category ( i.e. has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment) because Plaintiff has alleged that his impairment was substantially limiting. Moreover, Defendants' knowledge of Plaintiffs back injury alone does not mean that Defendants regarded Plaintiff as suffering from an impairment that substantially limits a major life activity. See Garrett v. Autozone, Inc., 71 F. Supp.2d 617, 621 (E.D. Tex. 1999), aff'd, 224 F.3d 765 (5th Cir. 2000) (defendants' knowledge of plaintiff's impairment or work limitations alone does not imply that defendant has regarded plaintiff as suffering from an impairment that substantially limits a major life activity). Plaintiff has not presented any evidence that Defendants believed Plaintiff's back injury had an effect on his ability to work or perform other major life activities. In fact, even if Defendants were concerned that Plaintiff's condition could cause him to miss work or could affect his job performance, that concern would not demonstrate that Defendants regarded Plaintiff as having an impairment that substantially limited his ability to work. See Deas v. River West, L.P., 152 F.3d 471, 481 (5th Cir. 1998) ("The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."). Moreover, the evidence indicates that Plaintiff worked up until the time of his termination.
Because Plaintiff has not raised a genuine issue of material fact as to whether he was disabled as defined by the TCHRA, Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's disability discrimination claim.
IV. ERISA CLAIM.
Plaintiff alleges that Defendants violated § 510 of ERISA, 29 U.S.C. § 1140, by interfering or attempting to interfere with his rights to ERISA-governed benefits and by allegedly discharging him because he exercised his rights under an ERISA-governed plan ( i.e. Honeywell's short-term disability plan). (Compl. ¶¶ 9.01-9.03.) Defendants argue that the plan at issue is not an ERISA-governed plan, and therefore Plaintiff cannot assert a § 510 claim against them. Plaintiff does not argue that the plan at issue is an ERISA plan, therefore, Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's ERISA claim.
V. BREACH OF CONTRACT AND PROMISSORY ESTOPPEL CLAIMS.
Finally, the Court considers Plaintiff's claims under the theories of breach of contract and promissory estoppel. Plaintiff claims that he is entitled to recover the health insurance and disability benefits he did not receive through these claims.
Under Texas law, the elements for a breach of contract are: (1) the existence of a valid contract, (2) performance of the contractual obligations, (3) breach of the contract, and (4) injury resulting from the breach. See Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 326 (Tex.App.-Houston [1st Dist.] 1995, no writ).
Plaintiff's claim fails because Plaintiff fails to allege a breach. There is no dispute that the plan's coverage ended when the employee was terminated. (Defs.' App. at 11-12, 37-38.) While Plaintiff may have been able to recover these benefits as damages under his other claims (had they been successful), Plaintiff has no independent breach of contract action. Accordingly, Defendants' motion for summary judgment on Plaintiff's breach of contract claim is GRANTED.
The elements of promissory estoppel are (1) a promise, (2) foreseeability that the promisee would rely on the promise, and (3) substantial reliance by the promisee to his detriment. See English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983). Plaintiff alleges that Defendants' communications to Plaintiff throughout his employment indicated to him that he was eligible for the disability and medical plans. However, there was no promise made that Plaintiff could recover these benefits after he was terminated. The plans clearly indicate that only current employees are eligible for the plans. Therefore, the Court GRANTS Defendants' motion for summary judgment as to Plaintiff's claim of promissory estoppel.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiff's Motion to Strike, and DENIES as MOOT Defendants' Motion to Strike.