Description: This motion was filed in an employment discrimination case pending in federal court in Texas. The basis of the motion was that Defendants had a non-discriminatory, non-pretextual justification for the plaintiff’s termination. Moreover, the motion asserts, Defendants did not engage in any intentional acts of discrimination against the plaintiff. This brief was filed by Heygood, Orr & Pearson on behalf of their client.
|IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
|BENNY W. KING,vs.TESMOF CORP., formerly TEXAS
SMOKEHOUSE FOODS, INC., d/b/a
CATTLE COMPANY OF TEXAS;
GREAT TEXAS FOODS CORPORATION,
d/b/a CATTLE COMPANY OF TEXAS;
DON DAVIS d/b/a CATTLE COMPANY
|CAUSE NO. 4:96CV298|
DEFENDANTS= MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT
COMES NOW Defendants TESMOF Corporation f/k/a Texas Smokehouse Foods, Inc., Great Texas Foods Corporation, and Don Davis (ADefendants@) and file this Motion for Summary Judgment and Brief in Support, and would respectfully show the Court as follows:
In August 1995, Plaintiff Benny W. King (APlaintiff@) began employment as a kitchen manager at the Cattle Company of Texas, a restaurant owned by TESMOF Corporation (ATESMOF@) and located in Corinth, Texas. He had previously worked at another restaurant owned by TESMOF located in Lufkin, Texas. On Saturday, May 4, 1996, Plaintiff=s manager, Don Kenway, specifically told Plaintiff that he was not to take Sunday, May 5, 1996, off from work. The following day, Plaintiff did not show up for work. When Plaintiff finally showed up for work on the following Tuesday, he was told that he was being terminated for failing to show up on Sunday. Plaintiff, who is black, claims that his termination was not based on his failure to show up for work as he had been scheduled to, but rather, on racial discrimination by Defendants. Defendant is wrong. As set forth below, Defendants have offered a non-racial, business justification for their termination of Plaintiff. Plaintiff has not, and cannot, demonstrate that this justification is a pretext or that Defendants engaged in any intentional acts of discrimination against Plaintiff. There are no genuine issues of material fact, and Defendants are entitled to judgment in their favor as a matter of law that Plaintiff take nothing by his claims.
BASIS OF MOTION
This Motion for Summary Judgment is based on the pleadings of the parties, the affidavit of Don Kenway (AKenway Aff.@) attached hereto as Exhibit A, the affidavit of Doug Clothier (AClothier Aff.@) attached hereto as Exhibit B, the deposition of Plaintiff Benny W. King (AKing Depo.@) attached hereto as Exhibit C, and all other competent summary judgment evidence.
On August 1, 1995, Plaintiff began employment at the Cattle Company of Texas, a restaurant located in Corinth, Texas, owned by Defendant TESMOF. See Kenway Aff. at par. 2; Clothier Aff. at par. 2. Plaintiff was employed as a kitchen manager. Id. He had previously worked at another restaurant owned by TESMOF located in Lufkin, Texas. Id. At the time he was hired to work in the Corinth restaurant, Plaintiff was provided with a copy of the rules applicable to his employment. See Kenway Aff. at par. 3; Clothier Aff. at par. 3. Those rules indicated that an employee=s failure to report for his shift was punishable by immediate termination. See Kenway Aff., Exh. 1; Clothier Aff., Exh. 1. By internal memorandum dated February 16, 1996, all restaurant managers were informed that AFriday, Saturday, and Sunday are traditionally [the] best revenue days@ for the restaurants and that it was Amandatory that all key personnel,@ including kitchen managers, be present on those days. See Kenway Aff., Exh. 2; Clothier Aff., Exh. 2. Consistent with this memorandum, on Saturday, May 4, 1996, general manager Don Kenway specifically told Plaintiff that he was not to take Sunday, May 5, 1996, off from work. See Kenway Aff. at par. 4; Clothier Aff. at par. 4. Corporate division manager Doug Clothier also confirmed this decision. Id. As Kenway explained to Plaintiff, one of the cooks had quit the previous day and the restaurant was going to be short handed on Sunday, its busiest day of the week. See Kenway Aff. at par. 4.
When the morning of Sunday, May 5 arrived, Plaintiff was nowhere in sight. See Kenway Aff. at par. 5; Clothier Aff. at par. 5. Because Plaintiff was the employee responsible for opening the store so that the kitchen help could prepare the kitchen, his absence prevented the kitchen employees from getting in the building in time to complete their preparation. See Kenway Aff. at par. 5. Although Kenway attempted to reach Plaintiff by telephone on Sunday, he could not be found. Id. Plaintiff never called the restaurant on Sunday to inform his managers of his whereabouts. Id. When Plaintiff failed to show up for his shift, Kenway had to call another employee to come in to try to help the restaurant get by on its busiest day. Id. Plaintiff=s failure to come to work on Sunday constituted a direct violation of company policy. See Kenway Aff. at par. 5; Clothier Aff. at par. 5. When Plaintiff finally showed up for work on Tuesday, May 7, 1997, he was terminated for his failure to show up for his shift on Sunday. See Kenway Aff. at par. 6; Clothier Aff. at par. 6. Plaintiff was not fired because of his race. Id.
ARGUMENT AND AUTHORITIES
I. Summary judgment standards in racial discrimination cases.
In a racial discrimination case such as the instant case, a Plaintiff must establish a prima facie case by a preponderance of the evidence. Once established, the prima facie case raises an inference of unlawful discrimination. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996). For purposes of this Motion, Defendants will assume that Plaintiff has made out a prima facie case which gives rise to an inference of unlawful discrimination. Once such an inference has arisen, Athe burden of production then shifts to Defendant to proffer a legitimate, nondiscriminatory reason for the challenged employment action.@ Id. at 992-93. The Defendant may meet this burden by presenting evidence that Aif believed by the trier of fact@ would support a finding that unlawful discrimination was not the cause of the challenged employment action. Id. at 993. Once the Defendant meets this burden, the presumption raised by the Plaintiff=s prima facie case disappears and the Plaintiff is held to his proof. Id.
Once a Defendant has offered a legitimate, nondiscriminatory reason for the challenged employment action, the Plaintiff=s prima facie case disappears. In order to resist summary judgment by a defendant in such circumstances, a Plaintiff must demonstrate that Athe evidence taken as a whole (1) creates a fact issue as to whether each of the employer=s stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [race] was a determinative factor in the actions of which Plaintiff complains.@ Rhodes, 75 F.3d at 994 (emphasis added); see also Ontiveros v. Asarco, Inc., 83 F.3d 732, 733 (5th Cir. 1996). In other words, to defeat a motion for summary judgment, a Plaintiff must do more than create a fact question as to whether the employer=s nondiscriminatory reason for the employment decision was merely pretext. In addition to making this showing, the Plaintiff must also create a fact question as to whether the employment decision at issue was motivated by consideration of the employee=s race. As one court has stated, Ain addition to a finding of pretext, Plaintiff must create a reasonable inference that [race] was a determinative factor in the actions of which he complains.@ Ontiveros, 83 F.3d at 734. As another court has stated, Athe essential fact question in any employment discrimination case in which the Plaintiff alleges disparate treatment is >not whether the Plaintiff has established a prima facie case or demonstrated pretext, but whether the Defendant has discriminated against the Plaintiff=.@ Armstrong v. City of Dallas, 997 F.2d 62, 66 (5th Cir. 1993).
An employer seeking summary judgment in a racial discrimination case will be so entitled Aif the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory.@ Rhodes, 75 F.3d at 994. If the evidence offered by the Plaintiff to establish his prima facie case and to rebut the employer=s nondiscriminatory reasons for the challenged employment action Ais not substantial, a jury cannot reasonably infer discriminatory intent.@ Ontiveros, 83 F.3d at 734. Under such circumstances, the Defendant is entitled to summary judgment in its favor. Numerous courts have applied these standards in upholding summary judgments granted to Defendants in racial discrimination cases. See, e.g., Armstrong, 997 F.2d at 67; Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137 (5th Cir. 1996); Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995).
II. Plaintiff cannot meet his burden of showing pretext.
As set forth above, the affidavits of Doug Clothier and Don Kenway clearly establish that Plaintiff was terminated because he failed to show up for work on a day on which he was scheduled. Defendants have therefore offered a legitimate, nondiscriminatory reason for the employment action challenged by Plaintiff. Under such circumstances, any presumption raised by the Plaintiff=s prima facie case disappears. See, e.g., Rhodes, 75 F.3d at 993. In order to defeat Defendants= Motion for Summary Judgment, therefore, Plaintiff must first raise a fact question as to whether Defendants= stated reasons for Plaintiff=s termination are actually mere pretext. See, e.g., Rhodes, 75 F.3d at 994; Ontiveros, 83 F.3d at 733. Plaintiff has not, and cannot, create such a fact question. As set forth above, Plaintiff was informed when he was hired by Defendant TESMOF that failure to report for a shift was punishable by immediate termination. In addition, a February 1996 memorandum clearly stated that all kitchen mangers were required to be present on Sundays. According to Kenway and Clothier, they specifically told Plaintiff that he was not to take off work on Sunday, May 5, 1996. Despite Plaintiff=s knowledge that all kitchen managers were to work on Sundays, that failure to report for a shift was punishable by immediate termination, and that he had been specifically told that he needed to work on Sunday, Plaintiff failed to show up for work on Sunday, May 5, 1996. In addition, he failed to call the restaurant to inform them that he would not be showing up for work that day.
Because of Plaintiff=s failure to show up for his shift, the kitchen employees were unable to prepare the kitchen prior to the start of business that day. In addition, another employee was forced to come in and help in the kitchen. When Plaintiff finally showed up for work on Tuesday, May 7, 1996, he was terminated for failing to report for work on the previous Sunday. As Kenway and Clothier stated in their affidavits, Plaintiff was not fired because of his race or because of any other discriminatory reason. Rather, Defendants had a legitimate, nondiscriminatory business reason for terminating Plaintiff. Defendant cannot demonstrate otherwise.
III. Plaintiff cannot meet his burden of showing discriminatory intent.
Even if Plaintiff could create a fact question as to whether the reason offered by Defendants for Plaintiff=s termination was a mere pretext, it would not be enough to defeat Defendants= Motion for Summary Judgment. In addition, Plaintiff is required to demonstrate that the evidence Acreates a reasonable inference that [race] was a determinative factor in the actions of which [he] complains.@ See Rhodes, 75 F.3d at 994; Ontiveros, 83 F.3d at 733. Plaintiff cannot possibly meet this burden. Although he has alleged that he was told by Don Kenway that he could take Sunday off from work, this evidence, even if believed, goes only to the issue of pretext. To defeat summary judgment, however, Plaintiff must demonstrate not only that the reason offered by Defendants for Plaintiff=s termination is merely pretext, but that it is pretext for racial discrimination.
In Mayberry, a black employee was terminated for violating his employer=s code of conduct. After he was terminated, the employee alleged that his termination was actually based upon race and/or was in retaliation for prior discrimination claims which he brought against his employer. The Defendant employer filed a motion for summary judgment, arguing that the Plaintiff=s violation of the employer=s code of conduct was a legitimate, nondiscriminatory reason for its termination of Plaintiff. The trial court granted the motion. On appeal, the Plaintiff argued that he had not actually violated the code of conduct as Defendant alleged. After reviewing the evidence, the Fifth Circuit Court of Appeals concluded that the evidence created a reasonable question of whether the Plaintiff violated the rule which Defendant argued he had violated. The Plaintiff focused on this fact question in arguing that the employer=s nondiscriminatory reason for his suspension was not credible. As the Court of Appeals held, however, AMayberry misses the mark. The question is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive.@ Id. at 1091. In other words, a Plaintiff must show more than that his employer=s justification for the challenged action was pretextual; he must also show that it was a pretext for discrimination. As another court has stated, Aeven an incorrect belief that an employee=s performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an employee=s competence. Motive is the issue.@ Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).
Even if Plaintiff creates a fact issue as to whether he was actually told that he needed to work on the Sunday at issue, this is simply not enough to defeat Defendants= Motion for Summary Judgment. In addition to raising a fact issue regarding pretext, Plaintiff must also raise a fact issue that his termination was based on racial discrimination. In order to avoid summary judgment, therefore, Plaintiff must demonstrate that the evidence Acreates a reasonable inference that [race] was a determinative factor in the actions of which Plaintiff complains.@ Rhodes, 75 F.3d at 994. This he cannot do. Plaintiff admitted in his deposition that Don Kenway, the manager who terminated him, never said anything directly to Plaintiff about his race. See Plaintiff=s Depo. at p. 28. He also admitted that no one in the company ever made any racially derogatory remarks to him. See Plaintiff=s Depo. at p. 34. When specifically asked why he believed his termination was a result of his race, Plaintiff stated that he didn=t believe that Mr. Kenway wanted him there in the beginning, that he was scheduled to work the day off that he was fired for missing, and that his punishment for missing work seemed to be too severe. See Plaintiff=s Depo. at p. 35. Plaintiff also stated that he believed he was terminated as a result of his race because of the way Kenway treated him. When asked specifically what he meant, Plaintiff stated that Kenway treated him Alike I wasn=t even part of the team,@ that Kenway Aignored me,@ and that Kenway Anever would sit down and talk and have a general conversation with me, you know, when I would talk to him about being at the restaurant.@ See Plaintiff=s Depo. at p. 36.
The foregoing evidence is clearly insufficient to raise a fact issue as to whether Plaintiff was terminated because of his race. As one court has stated, a plaintiff=s subjective belief that he has been discriminated against on the basis of race is not enough to create a fact question. See Grimes, 102 F.3d at 141. Even when viewed in the light most favorable to Plaintiff, the evidence shows only that Kenway would not talk to Plaintiff, ignored Plaintiff, and treated Plaintiff like he wasn=t a part of the team. At most, this evidence demonstrates that Kenway did not like Plaintiff. It provides no evidence whatsoever that Kenway was motivated by any kind of racial animus or discriminatory intent. As another court has stated in a summary judgment context, Aevidence of mere dislike is not enough to prove pretext under Title VII; Plaintiff must present evidence which would support an inference of racial or retaliatory animus in order to meet her evidentiary burden under a Title VII discrimination or retaliation claim.@ Grimes, 102 F.3d at 143. Based upon the foregoing, it is clear that Defendant has not and cannot raise a fact question as to whether Defendants= termination of Plaintiff was the product of racial discrimination. As such, Defendants are entitled to summary judgment in their favor as a matter of law.
CONCLUSION AND PRAYER
As set forth above, Plaintiff was terminated because he failed to show up for work on a day on which he was scheduled to work. Defendants have clearly offered a legitimate, nondiscriminatory reason for Plaintiff=s termination. Plaintiff has not and cannot create a fact question as to whether this legitimate reason was merely pretextual. More importantly, even if Plaintiff could create a fact question as to pretext, he cannot create a fact question as to whether Defendants were actually motivated by racial animus or a discriminatory intent. Neither evidence of Kenway=s alleged dislike for Plaintiff nor Plaintiff=s subjective belief that he was discriminated against are sufficient to create a fact question on discriminatory intent. There are no genuine issues of material fact and Defendants are entitled to judgment in their favor as a matter of law that Plaintiff take nothing on his claims.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the Court grant this Motion for Summary Judgment, enter a judgment that Plaintiff take nothing by his claims, and grant Defendants such other and further relief to which they may be justly entitled.
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)