Opinion
Civil Action Number 04-0003, Section: I/2.
May 25, 2005
ORDER AND REASONS
Before the Court is the motion of the defendant, Keystone Shipping Company ("Keystone"), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Keystone argues that this case presents no genuine issue of material fact and that it did not discriminate or retaliate against pro se plaintiff, Ronald A. Smith, Sr. ("Smith"). For the reasons set forth below, defendant's motion is GRANTED.
Rec. Doc. No. 19.
On February 10, 2005, the Court granted plaintiff's counsel's motion to withdraw because he and his client could not agree on how to proceed with this case. Rec. Doc. No. 23.
Background
Keystone owns, maintains and operates a fleet of vessels, and in late 1987, Smith began working for Keystone aboard ships in relief roles. Sometime in 1998, Smith filed an Equal Employment Opportunity Commission ("EEOC") charge in which he claimed that Captain D.L. Thrailkill denied him a promotion aboard the S/S Cherry Valley because of his race. Keystone and Smith settled the 1998 EEOC charge. Five years later, on July 23, 2003, Captain Gabrielsson of the Delaware Trader discharged Smith based on an incident involving one of Smith's superiors which amounted to insubordination.Smith's claims for employment discrimination are based on three independent theories, i.e., race, age, and retaliation, and arise from Keystone's termination of Smith from his position as a QMED pumpman onboard the Delaware Trader on July 23, 2003. Smith filed his lawsuit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and presumably the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623.
A "QMED" pumpman is a qualified member of the engine department. Rec. Doc. No. 19, exhibit 3, at 50.
In the complaint, Title VII is the only statutory basis identified. Rec. Doc. No. 1.
Law and Analysis
I. Summary Judgment StandardPursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2554; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking the summary judgment carries its burden pursuant to Rule 56(c), the other party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986). The showing of a genuine issue is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations omitted). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id.
II. Plaintiff's Claims
As a pro se litigant, it is established that the plaintiff's pleadings should be construed liberally. See Barksdale v. King, 699 F.2d 744, 746 (5th Cir. 1983). However, with respect to a motion for summary judgment, "particularized additional notice of the potential consequences of a summary judgment motion and the right to submit opposing affidavits need not be afforded a pro se litigant." Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992). The Fifth Circuit has held that the notice provided to pro se litigants by the Federal Rules of Civil Procedure and the local rules is sufficient notice of the requirements and consequences of such a motion. Id.
Keystone submits, along with its motion for summary judgment, a statement of material facts pursuant to the Local Rules. Smith has not provided a statement of contested material facts denying those submitted by Keystone. Accordingly, the Court deems Keystone's material facts admitted for the purpose of deciding this motion. See e.g., Harris v. Advance Transformer Co., 2000 WL 726889, *2 (E.D. La. June 6, 2000); Smith v . Compass Rose Services, Inc., 1998 WL 24426, *1 (E.D. La. Jan. 22, 1998). Futhermore, Smith's opposition is not supported by competent summary judgment evidence and his assertions and allegations are unsubstaniated. After considering the admitted facts and the applicable law, the Court finds that Keystone has established the absence of genuine issues of material fact and it is, therefore, entitled to summary judgment.
See LR 56.1. Pursuant to Local Rule 56.1, "[e]very motion for summary judgment shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried."
See LR 56.2. Pursuant to Local Rule 56.2, "[e]ach copy of the papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which there exists a genuine issue to be tried. 11 material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule."
A. Title VII and Age Discrimination in Employment Act
Section 703 (a) (1) of Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate . . . because of such individual's race." 42 U.S.C. 2000e-2(a) (1). Similarly, the ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623 (a) (1). Other than replacing the word race with age, the language of the ADEA "is identical to that found in . . . the Civil Rights Act of 1964 (Title VII)." Smith v. City of Jackson, 125 S. Ct. 1536, 1540 (2005). Due to the similarity in language, the textual meaning of the ADEA and Title VII has been presumed to be the same. Id. at 1541.
Under the McDonnell Douglas framework, plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973). Although the precise elements of a prima facie case vary slightly according to the nature of the claim and the facts of the case, a plaintiff usually satisfies this initial burden by showing that: 1) he is a member of a protected class; 2) he was qualified for the position or had satisfactory performance in the position; 3) he suffered an adverse employment action; and 4) the employer selected someone of a different race or age, or that others outside his protected class similarly situated were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed.2d 668 (1973); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2747, 125 L. Ed.2d 407 (1993); Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001) (Title VII); Evans v. City of Houston, 246 F.3d 344, 348-50 (5th Cir. 2001) (Title VII); Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998) (Title VII); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (articulating fourth element in ADEA case as "he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age").
"Once established, the plaintiff's prima facie case raises an inference of intentional discrimination. The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. If the defendant comes forward with a reason which, if believed, would support a finding that the challenged action was nondiscriminatory, the inference raised by the plaintiff's prima facie case drops from the case. The focus then shifts to the ultimate question of whether the defendant intentionally discriminated against the plaintiff." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (internal citations omitted).
Smith has failed to present sufficient evidence of satisfactory performance in his position. Keystone has presented uncontroverted evidence of Smith's failure to perform his job satisfactorily through personnel evaluations describing Smith's inability to work with others, his bad attitude, negative performance, and that he was not welcome aboard some ships.
See Rec. Doc. No. 19, exhibits 1, 7-9, 10, 15, 17. Keystone maintained a personnel file on its employees. SOMF, ¶ 12. Smith was evaluated following his completion of service on each vessel. SOMF, ¶ 13.
Keystone has also identified evidence which supports a finding that Smith was discharged for legitimate, non-discriminatory reasons. Likewise, there is no evidence showing that race or age played a role in Smith's discharge or that he was replaced by someone outside his protected class.
Rec. Doc. No. 19, SOMF, ¶¶ 15, 41.
In his opposition, other than alleging that his discharge was based on race, Smith has provided no evidence in support of his claims. Smith contends that he was treated differently than white employees and that if he was white, Captain Gabrielsson would have investigated the incident that led to his discharge. However, Smith has failed to offer any evidence to support his allegations or to rebut Keystone's legitimate, non-discriminatory reasons for Smith's termination. Therefore, not a single issue of genuine fact has been disputed and defendant is entitled to judgment as a matter of law with respect to Smith's Title VII and ADEA claims.
Smith does not even mention age as a basis for discrimination in his memorandum in opposition. See Rec. Doc. No. 25.
Rec. Doc. No. 25.
B. Retaliation
A prima facie claim for retaliation requires plaintiff to show: 1) statutorily protected activity or expression; 2) an adverse employment action; and 3) a causal link between the protected activity or expression and the adverse employment action. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (citing Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) and Foley v. Univ. of Houston Sys., 324 F.3d 310, 316 (5th Cir. 2003) (the elements for establishing a prima face case of retaliation under § 1981 are identical to those that must be established under Title VII)); Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 260 (5th Cir. 2001) (stating "[r]etaliation claims are nothing more than a protection against discrimination in that the employee against whom the employer has retaliated suffers discrimination based on the employee's exercise of a right to charge, testify, assist, or participate in a protected activity under the ADEA"); see also Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1982).
The ultimate determination in a retaliation case is whether the plaintiff's protected conduct was a but-for cause of the termination. McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985). However, the causal connection standard of a prima facie retaliation case is much less stringent than the ultimate but-for cause determination in such a case. Long v. Eastfield Coll., 88 F.3d 300, 305 n. 4 (5th Cir. 1996). With respect to plaintiff's prima facie case, plaintiff need not prove that retaliation was the sole factor motivating the termination decision. Id.
Smith asserts that his discharge was in retaliation for an Equal Employment Opportunity Commission ("EEOC") claim he made in 1998. There is, however, no evidence in support of a causal connection between Smith's filing of an EEOC complaint and his termination. First, there is no evidence that the captain responsible for Smith's termination, Captain Carl Gabrielsson, had any knowledge of Smith's past EEOC complaint. See Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999) (approving of district court's holding that the employer could not retaliate against plaintiff because it did not know that she had engaged in a protected activity) (citing Long v. Eastfield Coll., 88 F.3d 300 (5th Cir. 1996)). Second, five years elapsed between Smith's EEOC complaint and his termination, attenuating any but — for causation between the adverse employment action and his past EEOC charge. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that a time lapse of up to four months is evidence of a prima facie showing of a causal connection); Raggs v. Mississippi Power Light Co., 278 F.3d 463, 471 (5th Cir. 2002) (seven-year time lapse between plaintiff's EEOC claim and his layoff undermine any causal connection).
Rec. Doc. No. 19, SOMF, ¶ 18. Smith's EEOC charge, number 170981440, was filed on May 27, 1998. Smith alleged that he was laid off from his job on August 25, 1997, and that due to racial discrimination, he was denied promotions to "steady" positions. Rec. Doc. No. 19, exhibit 30. See Rec. Doc. No. 25. Keystone denied Smith's allegations. Rec. Doc. No. 19, exhibit 31. Smith and Keystone then entered into a settlement agreement on May 11, 1999, which ended the EEOC investigation. Id., SOMF, at ¶ 21. Pursuant to the agreement, Keystone reinstated Smith into the first available full-time QMED pumpman position. Id. Keystone paid no back wages, and the settlement was not an admission on the part of Keystone of any Title VII violations. See Rec. Doc. No. 19, exhibits 30-33.
Rec. Doc. No. 19, exhibit 2, affidavit of Capt. Gabrielsson. Gabrielsson declares that "[n]either Smith's age nor his race played any role" in his decision to discharge him, that "Smith [was] the first person" he ever discharged, and that he "was not even aware at the time of termination that Smith had filed an EEOC Charge against Keystone in 1998." Id.
Finally, Keystone has directed the Court to evidence that it had valid, non-discriminatory reasons for Smith's termination. See Patrick v. Ridge, 394 F.3d 311, 316 (5th Cir. 2004) ("An employer may avoid liability for charges of both discrimination and retaliation by producing evidence tending to show that it had a legitimate, nondiscriminatory reason for its disputed decision"). Smith has failed to address Keystone's non-retaliatory grounds for his termination. Accordingly, plaintiff has identified no genuine issue of material fact which is in dispute and defendant is entitled to summary judgment with regard to Smith's retaliation claim.
See Rec. Doc. No. 19, exhibits 1, 7-9, 10, 15, 17.
Rec. Doc. No. 19.
For the above and foregoing reasons,
IT IS ORDERED that Keystone Shipping Company's motion for summary judgment is GRANTED.