Opinion
Civil Action No. 3:99-CV-2377-M.
September 24, 2001.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed July 31,2001. Having considered the record and the applicable law, for the reasons stated below, the Court GRANTS Defendant's Motion in part and DENIES it in part.
I. BACKGROUND
Plaintiff Randy Preston ("Preston") worked at Cornerstone Bank from March 1, 1988, until his termination on January 29, 1999. Cornerstone was acquired by Defendant Compass Bank ("Compass") in January 1993. Preston was hired as a temporary employee but was made a Regional Security Manager in December 1994.
In 1998, George Van Zandt, the new Security Director for Compass, had the security division evaluated. Title changes were made and positions were added and eliminated. As part of this reorganization, Barb Buffa ("Buffa"), a white female, was hired as Regional Security Manager in Dallas and Preston's title changed from Regional Security Manager to Regional Security Officer. Instead of reporting to the Regional Security Manager in Houston, he began to report to Buffa. Preston's salary remained the same. Though Preston was aware of Compass's search for a Regional Security Manager who would supervise his new title, he did not apply for that position. The parties dispute whether Preston was informed that the position would be based in Arizona rather than Texas. In December 1998, Preston was commended for his performance and rated "superior" by Buffa.
In January 1999, all employees who possessed a business credit card were asked to sign an acknowledgment of Compass's business card policy. The policy stated that company credit cards are "intended for business expenses only," and that "misuse of the company business card can be grounds for disciplinary action up to and including termination." Def's App. at 57. Preston signed and submitted his acknowledgment on January 15, 1999.
On January 29, 1999, Buffa and Janese Pickens, Senior Human Resources Representative, met with Preston to discuss apparent business credit card misuse. They confronted Preston with alleged unauthorized personal uses of the Compass credit card on January 18 and 24,1999, totaling more than $1100.00. Preston claims he was not given an opportunity to explain the charges. Compass claims he was given an opportunity and gave no excuse. Preston was terminated at the January 29 meeting, after he refused to sign a memorandum of resignation which outlined the alleged credit card misuse. Preston admits that he inadvertently used the card for what turned out to be $27.45 in personal expenses on January 18, 1999, but denies any uses were improper or a violation of company policy.
Preston filed his Complaint on October 19, 1999, alleging race discrimination under Title VII of the Civil Rights Act of 1964, defamation, and tortious interference with prospective employment contracts. Compass moved for summary judgment on June 18,2001. Each claim will be addressed in turn.
II. SUMMARY JUDGMENT STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
The non-moving party, in this case Preston, must make a positive showing that a genuine dispute of material fact exists in order to resist summary judgment. Anderson, 477 U.S. at 250. The record before the court must be considered in the light most favorable to the opposing party. Harrison v. Byrd, 765 F.2d 501 (5th Cir. 1985). However, bare allegations in briefs and pleadings are insufficient to withstand summary judgment. Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
III. ANALYSIS AND DECISION
Preston alleges that Compass unlawfully discriminated against him on the basis of his race (black) by not giving him an assistant and by replacing him as Regional Security Manager with a white female. He further alleges that Compass discriminated against him because of his race by terminating him for credit card misuse. Preston also claims that he was denied a promotion because of his race and subjected to a hostile work environment. He alleges that Compass defamed him when an employee, Aline Lora, stated to an outside party that he had been terminated for stealing money from Compass. Finally, he claims that Compass tortiously interfered with his prospective employment contracts.
A. Disparate Treatment
Disparate treatment refers to deliberate discrimination in the terms or conditions of employment; here, Preston alleges discrimination in four respects: (1) he was not given an assistant; (2) he was paid less than co-workers; (3) he was replaced as Regional Security Manager by a white female; and (4) he was discharged for violating Defendant's credit card policy.
As a matter of law, Preston cannot establish his prima facie case of discrimination as to his first claim because failure to give him an assistant is not an adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). Adverse employment actions include "hiring, granting leave, discharging, promoting, and compensating." Id. Though this is not an exclusive list, failure to appoint an assistant is not the type of employment decision envisioned by this listing. As the Fifth Circuit stated in Mattern, "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Id. The decision not to furnish him an assistant is the kind of "interlocutory or mediate decision," which is outside the realm of actionable adverse employment actions. Id. at 708.
Preston also claims he was treated differently because he was paid less than similarly situated co-workers. In support of this claim, Preston offers his written performance appraisal by Thomas C. Green, Vice-President of the Corporate Security Division, who wrote that:
[a]t present Randy is not at the midpoint of his salary range (grade 14). He should at least be earning $34,866 which is the midpoint. With a six percent increase this year he will be earning $32,701 which is $2,165 less than that amount. According to the information provided by Human Resources the minimum amount for this position should be $40,000 (see attached). I would like to see some adjustment made later this year to bring Randy's salary up to the average of his counterparts in the Dallas area.See Greene Letter, Pl's App. at 45.
Preston made complaints concerning his salary to his supervisor, Greg Rippey. However, no complaint about pay is mentioned or alluded to in Preston's charge filed with the EEOC. Filing a charge with the EEOC is a condition precedent to a Title VII suit. Young v. City of Houston, Texas, 906 F.2d 177, 179 (5th Cir. 1990). In the Fifth Circuit, a Title VII action is limited in scope to the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Id. If an asserted claim is not "like or related to" an allegation in the EEOC charge, the court lacks subject matter jurisdiction over that claim. In his charge, Preston made allegations of discrimination relating to his change in job title and his discharge. Preston's unequal compensation claim is not reasonably related to these specific acts of discrimination, and since he filed no EEOC charge related to alleged disparate pay, the Court is without jurisdiction to address the merits of such a claim. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
Preston claims Compass demoted him because of his race. The prima facie elements of a claim of discriminatory demotion are that: (1) Preston is a member of a protected class under the statute; (2) he was demoted; (3) he was qualified to perform the job in question; (4) he was performing the job at the time of the demotion at a level that met the legitimate expectations of his employer; and (5) he was replaced by a similarly qualified person outside of the protected class. Ward v. Bechtel Corp., 102 F.3d 199, 201 (5th Cir. 1997). Once that showing has been made, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The burden of persuasion, however, remains at all times with Preston. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In order to prevail on his disparate treatment claim, Preston must then demonstrate that the reason articulated by the employer was pretextual. Id.
Compass maintains that Preston cannot meet his prima facie case of discriminatory demotion because while his title changed, Preston was not demoted. Preston argues that he suffered an adverse employment action. The Court finds controlling the case of Mattern v. Eastman Kodak Co. 104 F.3d 702, 707-08 (5th Cir.), cert. denied, 522 U.S. 932 (1970). A change in title with no change in pay, benefits or substantial level of responsibility does not constitute an adverse employment action. Id.; Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) ("bruised ego" from a change in title is not enough to meet a party's prima facie case). Although his title changed from Regional Security Manager to Regional Security Officer, neither Preston's pay nor his responsibilities changed. In his deposition, Preston admits he "still did everything" under the new title as he did under the old title. As Regional Security Manager, Preston reported to Greg Rippey, a Regional Security Manager "above him." Under the title Regional Security Officer, Preston instead reported to Buffa. He thus has not met his burden of establishing a prima facie case.
Finally, Preston asserts that Compass violated Title VII by discharging him because of his race. In January 1999, all of Compass's employees who possessed a business credit card were asked to sign an acknowledgment of the company's business credit card policy. Def's App. at 57. Preston did so on January 15, 1999. Compass claims that on January 18 and 24, 1999, Preston used the business credit card for personal use. Buffa and Pickens state in their affidavits that Preston admitted using the card for personal use but refused to sign a resignation letter itemizing the allegations. He was then terminated by Buffa.
Preston denies violating the company policy and denies ever admitting to a violation. Preston claims that he used the card to reserve a tee time for a round of golf with a business associate. After the associate cancelled at the last minute, Preston went ahead and played. Since the transaction was complete, he claims the golf course was unable to take the expense off the business credit card. He states the January 24, 1999 charge of $1,106.28 was a balance payoff due on the corporate credit card before the new policy went into effect. Compass's Reply Brief does not address Preston's explanation.
The burden shifting analysis for Title VII discriminatory discharge is the same as that for discriminatory demotion. Preston must establish a prima facie case that the defendant terminated him because of his race. Once that is established, Compass bears the burden of producing evidence that its employment decision was based on a legitimate non-discriminatory reason. The burden then shifts back to Preston to disprove this proffered reason by showing it was pretextual. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). In work rule violation cases such as this, plaintiffs can establish their prima facie case by showing either that they did not violate the rule or that, if they did, white employees who engaged in similar acts were not punished similarly. Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S. 879 (1980). Here, the policy had only been in effect a short time. Though Preston has not presented evidence of dissimilar treatment toward similarly situated white employees, he raises genuine issues of material fact as to whether he violated the credit card use policy. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (plaintiff can make out his prima facie case by showing that he did not violate the rule).
A single affidavit of Buffa attesting to a violation of company policy coupled with an unsigned resignation letter admitting to company violations does not demonstrate that Preston violated the Compass policy. Instead of offering evidence supporting summary disposition, Compass presents conclusory statements and simply claims that Preston loses since he cannot demonstrate that other similarly situated white employees were treated differently after violating the credit card policy which had been in effect for only two weeks. Preston can satisfy his prima facie burden by either showing he was treated differently or by demonstrating he did not violate the policy. Preston has raised a genuine issue of material fact as to whether he violated the company policy. See ITT Commercial Fin. Corp. v. Bank of the West, 166 F.3d 295, 299 (5th Cir. 1999) (all factual questions must be resolved in favor of the non-movant); Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp., 83 F. Supp.2d 781, 798 (E.D. Tex. 2000) (even though non-movant's evidence was "not overwhelming," it was enough to create a genuine issue of material fact). Those circumstances establish that Compass is not entitled to judgment as a matter of law.
B. Failure to Promote
Filing an administrative complaint is a jurisdictional prerequisite to bringing a Title VII action. Civil complaints filed under Title VII may only encompass discrimination like or related to allegations contained in the EEOC charge and claims that could reasonably be expected to grow out of those allegations. Clemmer v. Enron Corp., 882 F. Supp. 606, 610 (S.D. Tex. 1995) (quoting National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994)). In his April 21, 1999 charge filed with the EEOC, Preston alleged that because of his race, he had been replaced as the Regional Security Manager by a white female and later terminated. Although Preston's race discrimination claim for failure to promote was not developed or investigated during the course of the EEOC proceedings, the Court finds it could reasonably be expected to grow out of his race discrimination charges. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Preston's charge stated:
On/about October 15, 1998, my job title was changed from Regional Security Manager to Regional Security Officer . . . No reason was provided for my job title change . . . I believe I have been discriminated against because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that a white female replaced me as the Regional Security Manager."
Charge at 2. Preston's denial of a promotion claim is like and related to the allegations contained in the charge, which focus on a job title change and discrimination in the hiring of a white female for the position of a supervising Regional Security Manager.
For his failure to promote claim, Preston must establish a prima facie case of discrimination by showing: (1) he is a member of a protected class; (2) he sought and was qualified for an available employment position; and (3) the promotion was given to another person who is not a member of his protected class. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). It is undisputed that Preston did not seek the position of Regional Security Manager in the reorganized structure. Compass argues that this fact forecloses Preston's chance to prevail on his failure to promote claim. Preston maintains he did not apply for the position because he was told it would be based in Arizona. The undisputed evidence is that this was the plan until Buffa requested a different location. Preston thus has not established his prima facie case of discrimination. He was not rejected for the position. He has not produced evidence of fraud or misrepresentation by Compass as to the location of the job position and the Court has found no case where a plaintiff is deemed to have impliedly satisfied the requirement of seeking the subject job when he did not apply for it. The Court declines to imply that fact here. Because Preston did not apply for the new position of Regional Security Manager, his failure to promote claim fails.
Even if the Court expanded the failure to promote cause of action as Preston requests, he cannot satisfy his burden. Compass has offered a legitimate, non-discriminatory reason for hiring Buffa over Preston. It claims she was more qualified for the position. For a fact-finder to infer pretext in a failure to promote claim, a plaintiff must show that he was "clearly better qualified," as opposed to merely better qualified or as qualified as the employee selected for the position. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996). Here, Buffa had over thirty years of experience in bank operations and a Bachelor of Arts degree. She is a Certified Fraud Examiner. Plaintiff has worked in bank operations for eleven years, four of which were as a temporary employee, and he has only a high school diploma.
C. Hostile Work Environment
Preston alleges he was subjected to discriminatory acts which created a racially hostile atmosphere: (1) he was threatened with termination for an incident with another employee; (2) he was told that he did not sound "black enough" on the telephone; (3) there was a controversy surrounding his job review for 1997 or 1998; (4) comments were made that he should date within his own race; (5) Gary Kujawski called John Wiley Price a "nigger" in front of him; (6) Gary Kujawski kept "tabs" on him; (6) Gary Kujawski accused him of not doing his job; (7) comments were made regarding his belief that there was not enough evidence to convict O.J. Simpson; and (8) he was told that he would be taken to a Klu Klux Klan meeting.
Under Title VII, a person who is aggrieved by an allegedly unlawful employment practice must file an administrative complaint and exhaust his administrative remedies prior to filing a judicial action. Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997). Preston filed a charge of discrimination with the EEOC on April 21, 1999. However, the charge does not contain complaints of a racially hostile work environment nor does it allege continuing discrimination. Preston's claim of hostile work environment falls outside the scope of the April 21, 1999 charge. As Preston failed to exhaust his administrative remedies, his claim of hostile work environment fails as a matter of law. See Hairston v. Contracta Facility Serv., 2001 WL 332018 (N.D. Tex. 2001).
Alternatively, the Court finds several of Preston's allegations untimely. An allegation of discrimination must be filed with the EEOC within 300 days of an alleged incident or it is barred. 42 U.S.C. § 2000e-5(e) (2000). Preston filed his complaint with the EEOC on April 21, 1999. The following allegations are untimely: (1) a 1994 allegation that Preston should date within his own race; (2) a 1997 allegation that Gary Kujawski called John Wiley Price a "nigger" in front of him; (3) a threat to take Preston to a KKK meeting in 1997; (4) a controversy surrounding a 1997 job review. See Pope v. MCI Telecom Corp., 937 F.2d 258, 263-64 (5th Cir. 1991), cert. denied, 504 U.S. 916 (1992).
D. Tortious Interference
Texas law protects prospective as well as existing contracts from third party interference. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989). The elements of a tortious interference with prospective contract or business relationships are: (1) a reasonable probability that the parties would have entered into a contractual relationship, (2) an intentional and malicious act by the defendant that prevented the relationship from occurring, with the purpose of harming the plaintiff, (3) the defendant lacked a privilege or justification to do the act, and (4) actual harm or damage resulted from the defendant's interference. Exxon Corp. v. Allsup, 808 S.W.2d 648 (Tex.App. — Corpus Christi 1991, writ denied).
Preston contends that Compass tortiously interfered with his prospective employment opportunities with Bank United and Legacy Bank. Specifically, he alleges that he was turned down for employment after Bank United and Legacy Bank spoke with Buffa. In his deposition, Preston could not point to any evidence supporting his claim. He merely suspected that Buffa spoke unfavorably about him to these prospective employers. Though Buffa does not address this in her affidavit, "conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Preston failed to address the tortious interference claim in his Response and has failed to raise a material fact issue for trial. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
E. Defamation
A statement is defamatory if the words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. See Campbell v. Salazar, 960 S.W.2d 719, 725-726 (Tex.App.-El Paso, 1997, pet. denied). Preston contends that Aline Lora told FBI Agent Allen Baldone that Preston had been terminated for stealing money from Compass. However, Allen Baldone, in a sworn affidavit, denies he was told this by Aline Lora or any other Compass employee. See Baldone Aff. at 1. This points out the absence of evidence supporting Preston's claim. Preston does not claim he overheard the conversation and presents no evidence to support the claim. In fact, in his response, Preston completely failed to address his defamation claim. He has failed to meet his summary judgment burden of identifying specific evidence in the record showing a genuine issue for trial and the defamation claim is thus dismissed. See Latimer v. SmithKline French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
IV. CONCLUSION
For the reasons stated above, the Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. Specifically, Plaintiff's claim that Defendant violated Title VII by discharging him because of his race is denied but summary judgment is granted as to all other claims brought against the Defendant by the Plaintiff.