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
FOR THE EASTERN DISTRICT OF TEXAS
|NATHANIEL MORELANDvs.TEXAS SMOKEHOUSE FOODS, INC.,
TESMOF CORPORATION, and
WHOEVER OR WHATEVER ENTITY
d/b/a TEXAS SMOKEHOUSE FOODS
|CIVIL ACTION NO. 9:96CV476|
DEFENDANTS= MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT
COMES NOW Defendant TESMOF Corporation f/k/a Texas Smokehouse Foods, Inc. (ADefendant@) and files this Motion for Summary Judgment and Brief in Support, and would respectfully show the Court as follows:
In July 1989, Plaintiff Nathaniel Moreland (APlaintiff@) began employment as a sanitation worker with Defendant at its plant in Lufkin, Texas. He had previously worked for Don Burdette, one of the principals of Defendant, for over twelve years. On April 15, 1996, Plaintiff=s supervisor attempted to locate Plaintiff at the beginning of his shift. After more than an hour of looking for Plaintiff, the supervisor finally located him. An argument ensued, and Plaintiff admittedly cursed and yelled at his supervisor. Plaintiff=s supervisor, Ben Frisby, immediately terminated Plaintiff for his insubordination and disorderly conduct. Plaintiff, who is black, claims that his termination was not based on his insubordination and disorderly conduct, but rather, on racial discrimination by Defendant. Plaintiff is wrong. As set forth below, Defendant has offered a non-racial, business justification for its termination of Plaintiff. Plaintiff has not, and cannot, demonstrate that this justification is a pretext or that Defendant engaged in any intentional acts of discrimination against Plaintiff. There are no genuine issues of material fact, and Defendant is entitled to judgment in its 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 Saul Mijares, Jr. attached hereto as Exhibit A, the deposition of Plaintiff Nathaniel Moreland attached hereto as Exhibit B, and all other competent summary judgment evidence.
In July 1989, Plaintiff began employment as a sanitation worker with Defendant at its plant in Lufkin, Texas. Exh. B at p. 23, exh. 1. He had previously worked for Don Burdette, one of the principals of Defendant, for over twelve years. Exh. B at p. 20. In October 1990, Plaintiff was given an employee handbook, which he admits reading and understanding. Exh. B at pp. 28-32, exh. 2, 3. In the employee handbook, Plaintiff was specifically informed that Ano employee will be permitted to curse, insult or defame in any manner another employee at anytime in or about company property.@ Exh. B at p. 31, exh. 3. The handbook also stated that insubordination or disorderly, immoral or indecent conduct was grounds for immediate discharge. Exh. B at pp. 31-2, exh. 3.
On April 15, 1996, Plaintiff=s supervisor, Ben Frisby, attempted to locate Plaintiff at the beginning of his shift. He was accompanied by Saul Mijares, Jr. Exh. A at par. 3. After more than an hour of looking for Plaintiff, the supervisor finally located him. An argument ensued, and Plaintiff cursed and yelled at his supervisor. Exh. A at par. 4. In his deposition, plaintiff testified as follows:
Q: And what happened next?
A: Well, things just, you know, he [Frisby] got rude with me.
Q: Any you got rude back?
A: Yes, sir.
Q: You cursed at Mr. Frisby, didn=t you?
A: He cursed me first.
Q: And you cursed him back?
A: That=s right. . . . . .
Q: You were yelling, weren=t you?
A: He had me angry. Put it like that.
Q: Any you were yelling?
A: And he was too.
Q: Okay. My question, sir, is you were yelling, correct?
A: Yeah, I yelled, I=m sure I did.
Exh. B at pp. 53-54. In addition to this testimony, Plaintiff also stated to the Texas Employment Commission that the reason for his discharge was that: ASupervisor cursed me and I cursed him back.@ Exh. B at pp. 73-74, exh. 7.
After Plaintiff=s profane outburst, Plaintiff=s supervisor, Ben Frisby, immediately terminated Plaintiff for his insubordination and disorderly conduct. Even Plaintiff concedes that he should have been punished for his conduct, admitting in his deposition that he deserved at least a warning for what he had done. Exh. B at pp. 61. He also stated that he would have accepted either a warning or a suspension for his behavior. Id. In short, Plaintiff concedes that he deserved some punishment for his outburst, but simply feels that his punishment was too severe. Exh. B at pp. 61-62.
Although Plaintiff claims in this lawsuit that he was discharged due to his race, he admits that no one at Defendant=s plant ever made any racial comments to him. Exh. B at p. 86. He also admits that he never told any of his superiors, even after his supervisor terminated him, that he felt he was being discriminated against because of his race. Exh. B at pp. 91, 93, 94. In addition, Plaintiff testified that none of the other black employees of Defendant ever complained about Ben Frisby, the supervisor who terminated Plaintiff after his obscene outburst. Exh. B at p.98.
In response to the foregoing evidence of Defendant=s legitimate, non-discriminatory reason for Plaintiff=s termination, Plaintiff offers no evidence of racial discrimination. Instead, Plaintiff claims that he was fired because Frisby had embarked on a campaign of forcing highly paid workers, both white and black, to leave the company so that the company could save money on labor costs. Mr. Moreland testified as follows:
Q: And you thought that Mr. Frisby had a plan to get rid of anybody who was more senior, who was making more money than the minimum wage?
A: That=s correct, sir. . . . .
Q: Well if a white person had been making more money, would Mr. Frisby have wanted to get rid of that person to save money?
A: It=s possible. It worked both ways out there. . . .
A: I seen them like when they want to get rid of a black or white, they=ll make it hard on that person, make them quit or if they can=t make you quit, they=ll find some kind of reason to terminate you, and I have seen that happen out there so they can replace them.
Q: Did that happen to both black employees and white employees?
A: Black and white.
Q: Why do you think that those black and white employees were being pushed to either quit or be terminated? Why would the company do that?
A: Because they wanted cheaper labor to get their work done. . . . .
Q: And some of the workers the company wanted to get rid of were white and some were black?
A: That=s correct.
Q: And that=s what you observed?
A: I observed that.
Q: And you feel that=s why you were terminated?
A: That was why I was terminated, yes, sir, I feel that.
Exh. B at pp. 80, 82, 90, 91.
Defendant has offered a legitimate, non-discriminatory reason for Plaintiff=s termination. In response, Plaintiff has offered what is, in essence, simply a different non-discriminatory motive. As set forth more fully below, there are no genuine issues of material fact and Defendant is entitled to judgment in its favor as a matter of law.
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, Defendant 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 uncontroverted evidence set forth above establishes that Plaintiff was terminated because he was insubordinate and disorderly towards his supervisor. Defendant has 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 Defendant=s Motion for Summary Judgment, therefore, Plaintiff must first raise a fact question as to whether Defendant=s 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 shortly after his hiring that cursing of fellow employees would not be tolerated and that insubordination and disorderly conduct were grounds for immediate termination. Plaintiff himself concedes that he deserved some punishment for his obscene outburst, but argues that the punishment he received was too severe. Federal law, however, Adoes not ensure that employees will always be treated fairly or that they will be discharged only for meritorious reasons.@ Archuleta v. Colorado Dept. Of Institutions, 936 F.2d 483, 487 (10th Cir. 1991); see also Wilson v. Belmont Homes, 970 F.2d 53, 57 (5th Cir. 1992)(ATitle VII, by its own terms, does not require that an employer terminate its employees only for good cause; our inquiry is not into the merits of the employer=s employment decisions, but into the motives@). Even if his supervisor overreacted in terminating Plaintiff for his behavior, this would provide no basis for Plaintiff=s claims.
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 Defendant for Plaintiff=s termination was a mere pretext, it would not be enough to defeat Defendant=s 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 his firing was too severe a punishment for his obscene outburst, this goes only to the issue of pretext. To defeat summary judgment, however, Plaintiff must demonstrate not only that the reason offered by Defendant 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 absent from his work area at the time his supervisor claims to have been searching for him, 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 no one at Defendant=s plant ever made any racial comments to him. He also admitted that he never told any of his superiors, even after his supervisor terminated him, that he felt he was being discriminated against because of his race. In addition, Plaintiff testified that none of the other black employees of Defendant ever complained about Ben Frisby, the supervisor who terminated Plaintiff after his obscene outburst. Finally, Defendant asserts that he was fired because his supervisor had determined to fire all high-paid employees — both black and white — in order to save the company on labor costs.
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 Frisby overreacted by terminating Plaintiff rather than simply suspending him and that Frisby was perhaps motivated by a desire to get rid of all highly paid workers to save on labor costs. This evidence provides no basis for concluding that Frisby was motivated by Plaintiff=s race in firing him. At the most, Plaintiff=s assertions might raise an inference that Frisby did not like Plaintiff. As another court has stated in a summary judgment context, however, 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 Plaintiff cannot raise a fact question as to whether Defendant=s termination of Plaintiff was the product of racial discrimination. As such, Defendant is entitled to summary judgment in its favor as a matter of law.
CONCLUSION AND PRAYER
As set forth above, Plaintiff was terminated for insubordination and disorderly conduct after yelling and cursing at his supervisor. Defendant has clearly offered a legitimate, nondiscriminatory reason for Plaintiff=s termination. Plaintiff has not created, 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 Defendant was actually motivated by racial animus or a discriminatory intent. Evidence of Frisby=s alleged dislike for Plaintiff, Plaintiff=s subjective belief that he was discriminated against and Plaintiff=s allegation that he was fired because he earned more money than other workers are all insufficient to create a fact question on discriminatory intent. There are no genuine issues of material fact and Defendant is entitled to judgment in its favor as a matter of law that Plaintiff take nothing by his claims.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court grant this Motion for Summary Judgment, enter a judgment that Plaintiff take nothing by his claims, and grant Defendant such other and further relief to which it may be justly entitled.
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)