Opinion
CIVIL ACTION NO. 99-W-532-N
October 18, 2000
MEMORANDUM OF OPINION
Plaintiff Sam Khotsombath commenced this action on May 26, 1999 against defendant Sears Termite Pest Control, alleging that defendant discriminated against him on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, and that defendant retaliated against him for complaining of discrimination by terminating his employment. This action is presently before the court on the motion for summary judgment filed by defendant on June 30, 2000. Upon consideration of the motion, the court concludes that it is due to be granted in part and denied in part.
BACKGROUND
As it is required to do, the court has viewed the evidence presented on the motion for summary judgment in the light most favorable to the plaintiff. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). The court considers any objections not made to the use or admissibility of the evidence waived for purposes of this motion. Davis v. Howard, 561 F.2d 565, 570 (5th Cir. 1977).
Plaintiff Khotsombath is an Asian-American. (Complaint, ¶ 3; Answer, ¶ 3). He was born in Laos in 1968 and moved to the United States with his parents in 1980. (Khotsombath depo., pp. 17-19). Plaintiff graduated from high school in Georgia in 1987 and then attended a technical school for one year. (Id., pp. 20-23). He worked in a textile mill in Georgia for approximately five years, then moved to Montgomery, Alabama. (Id., pp. 23-26). Plaintiff commuted to Calera for one year, while he worked for National Standard as a machine operator. After a strike closed down the plant, plaintiff was employed by Work Force on an assignment to Dana Corporation in Montgomery as a lathe operator. (Id., pp. 29-33).
Defendant hired plaintiff in April 1996 as a termite technician. (Complaint, ¶ 6; Answer, ¶ 6; Khotsombath depo., pp. 34-36, 43, 46). His job consisted of inspecting and treating homes for termites. (Khotsombath depo., p. 46). When plaintiff was hired, he was one of two termite technicians at defendant's Montgomery office. In addition to the termite technicians, defendant employed a secretary and several sales representatives at the Montgomery office. (Id., pp. 46, 48-49). Plaintiff was paid an hourly rate plus a commission. (Id., p. 50). His work routine was to go to the office in the morning to get his work assignments for the day, and then travel to the work site. After the job was finished, plaintiff completed paperwork regarding the particular job, including the hours that he worked. Sometimes he returned to the office at the end of the day; on other days he went home. (Id., pp. 51-55).
Plaintiff was hired by Chuck Stevens, the manager of defendant's Montgomery location. Plaintiff's supervisor was Phillip Bumpers. (Id., pp. 34-35, 46, 48-49, 61). In 1996, plaintiff was subjected to racial comments by Stevens, Bumpers, and Maff, an employee who worked in the supply room. Plaintiff normally worked a five or six-day work week and, four or five days out of the week, these individuals addressed him in derogatory terms. Plaintiff testified:
They called me names like gook. You know, hey, get your gook ass over here, they say. or they tell me to shut up when I say something. They say, Shut up you little chink. You know, Get your rice ass over here. And they call in sometimes in the office or in the morning, if they want to talk to see what I do yesterday. Get your rice ass in here.
(Khotsombath depo., pp. 61-62). Plaintiff further testified that, during his employment, other employees — Anthony Thorn, Ken Forsythe, Michael James, and Scott Hines — regularly used the same racially derogatory language toward him. (Id., pp. 71-72). Plaintiff further testified as follows:
Q. How else are you contending in this lawsuit that you were mistreated by Sears, other than these — well, first of all, have you told me all of the racially derogatory terms that you've been subjected to by Sears or Sears employees?
A. Well, like I told it's just, like, constantly being harassed every day. It depend on what they feel like doing to me that day. Sometimes they wrestle me, they twist me in the neck, you know, try to wrestle me down before we go out on a job or something like that. They just do it — if we play a game, they have to elbow me so hard to see me fall down, see I'm hurting, then it make — they think it's funny, and they feel good about doing that. It just —
* * * * *
Q. Now, who twisted your neck and wrestled you down?
A. Matt.
Q. Anybody else?
A. Phillip, he knuckled me a couple of time.
Q. When did Matt twist your neck and wrestle you down — or how often, first of all?
A. Not too often, maybe a couple of times a month, you know. Then he stopped.
Q. This was — was this throughout your employment with Sears?
A. 1996, yes.
Q. Was it in 1997 and 1998, too?
A. '98 is somebody else. What his name was? I forgot his name.
Q. Somebody else will twist your neck and wrestle you down?
A. Right. Right.
Q. Where did this occur?
A. In — in the meeting room. The meeting room, they got office there. This is the meeting so people sitting around. . . .
* * * * *
Q. When you said you were — you'd be playing games, and you'd get elbowed down, what games were you playing?
A. We don't play games, actually. It all — it just started with racial slur, okay? Then — then you jump up, and he jump up. That's how it started. You don't go ahead and start it. Come on. Let's play a game. We don't do that. It's not an appropriate time to do any wrestling, period. You need to get out there and go finish the meeting, and if you got a place to go, you need to go and get the job done. That how it started. It never a game there. They don't allow for you to play any game in there.
(Id., pp. 69-73, 75).
Other employees regularly drew cartoons of a "pointy rectangular head" with a long mustache and long eyes, showed them to plaintiff and said, "That's rice boy." (Id., pp. 218-21). Chuck Stevens, Ken Forsythe and Chris Lanthrip — supervisors and managers — looked at the cartoons and laughed. (Id.). Plaintiff's co-workers and manager made accusations toward plaintiff regarding the Vietnam War and questioned him as to whether he would be on the American side or the Asian side if he went to war. (Id., pp. 229-30). Plaintiff's co-workers teased him about being a "dog eater." (Id., pp. 242-43). Plaintiff heard managers and supervisors — including Hines, Forsythe, Nelson and Redden — refer to a black co-worker as "that dam[n] nigger." (Id., p. 243). In sales meetings and in day-to-day interactions, white employees often mocked plaintiff's Asian accent and referred to him as "Rice Boy" and "Chink Boy" in the presence of Redden.
In the deposition transcript this individual is referred to as "Rentin." (See Khotsombath depo., p. 81). In plaintiff's brief, and Lanthrip's affidavit, he is referred to as "Redden." (Plaintiff's brief, p. 3; Lanthrip aff.).
On September 24, 1996, plaintiff received a "performance assistance plan" from Chuck Stevens, who was then the manager, noting that plaintiff's performance needed improvement in the area of "calling office when work is completed." Plaintiff testified that he received the plan "[b]ecause when I finished a job, I just write them off and go. I don't call in and say, I finished a job. Sometime they have a job for me after the job that has been assigned to me. And if I don't call in, they think I'm still at the job site, so they can't call up on me." (Khotsombath depo., pp. 180-82 and Exhibit 11). On October 9, 1996, plaintiff received another "performance assistance plan" for "improper use of equipment." Plaintiff had used two drills at once, one in each hand, using a household extension cord. (Id., at pp. 182-85 and Exhibit 12). On November 25, 1996, plaintiff received another write-up from Stevens for "Violation of State Company Lable [sic] Guidelines." Stevens noted that plaintiff was spraying "termiticide all over everything," and on the customer's floor joists and plumbing lines. Plaintiff disagreed with Stevens regarding whether the spraying was improper, but admits that he sprayed termiticide as Stevens noted, and that Stevens told him he was not supposed to do that. (Id., pp. 185-88 and Exhibit 13). On July 1, 1997, plaintiff received a "coaching plan" which indicates that a manager and plaintiff discussed getting to appointments on time and time management. (Id., pp. 188-91 and Exhibit 14). On July 9, 1997, plaintiff received a "performance assistance plan" for arguing with another technician in front of a customer. (Id., pp. 191-95 and Exhibit 15). Plaintiff received a "performance assistance plan" on October 31, 1997 for treating a house with wood-to-ground contact. (Id., pp. 195-99 and Exhibit 17). On February 18, 1998, plaintiff received a "performance assistance plan" for failing to call a manager before deciding to disqualify a job. (Id., pp. 200-01 and Exhibit 18). Lanthrip was assigned to the Montgomery office from February 1996 to November of 1997. He was plaintiff's supervisor. He found plaintiff to be "a loyal, conscientious and dependable employee" who "performed his job duties and responsibilities in a satisfactory manner." (Lanthrip aff., p. 1).
Defendant has introduced evidence of a "performance assistance plan" dated September 8, 1997. (Exhibit 16 to Khotsombath depo.). Unlike the other plans, however, Exhibit 16 was not signed by plaintiff. Plaintiff testified that he had not seen the document prior to his deposition. (Khotsombath depo., p. 195).
In 1998, plaintiff told Redden, Forsythe, Lanthrip, and Mocek that he wanted a promotion to the position of termite master. Plaintiff believed that he was best qualified for the job based on his experience and seniority, but it was awarded to another employee in Mobile. (Khotsombath depo., pp. 80-87). Scott Hines was promoted to supervisor in early 1998 by Redden and Forsythe. Plaintiff testified that he believed he should have received this position based on his experience, seniority, and his ability to speak three languages fluently. (Id., pp. 106-09). Plaintiff also contends that he should have received promotions to: (1) Sales Supervisor, awarded to Anthony Thorn in 1998; (2) Supervisor Trainee, awarded to Kyle Nelson in late 1997 or early 1998; (3) Termite Supervisor, awarded to Chris Lanthrip in 1997; and (4) Supervisor Trainee, awarded to "Steve" in late 1997 or early 1998. (Id., pp. 99-111).
Once or twice a week during the months that he worked with plaintiff, Ken Forsythe told plaintiff that whites do not like Asians, and that plaintiff would never succeed. (Id., p. 224). Guy Mocek, the district manager, told plaintiff that he would not succeed with the company, and that they would not promote him. Plaintiff testified:
[Mocek] said, Look at yourself. He said, Well, we cannot promote anybody. He said — and expect the office to run like the way it is, because nobody gonna buy business from you. You're an Asian. They don't understand what you're talking about. They're not going to listen to you. They're not going to let you get in the house for one thing, when they see you coming. They said if a black people will let you in, but white, forget it. So if you job is termite technician, you do just that.
(Id., pp. 228-29).
When Redden was the Zone Manager, he assigned plaintiff "re-treats" as opposed to new business. New business would have enabled plaintiff to earn more money. (Lanthrip aff., p. 1). White employees were given mostly new business. (James aff., p. 1). When Ken Forsythe became zone manager, plaintiff's hours were cut. (Id., p. 159). On March 11, 1998, Forsythe fired plaintiff. (Id., pp. 239-40, 244; Forsythe aff.).
THE SUMMARY JUDGMENT STANDARD
A party seeking summary judgment bears the initial burden of demonstrating to the court the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions that it believes show an absence of any genuine issue of material fact. Hairston v. Gainesville Publishing Co., 9 F.3d 913 (11th Cir. 1993). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Court held that if a party opposing summary judgment "fails to make a showing sufficient to establish the existence of an element essential to their party's case, and on which their party will bear the burden of proof at trial," summary judgment shall be granted.
[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by . . . affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial . . . We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56 except the mere pleadings themselves. . . ."Id. at 324.
For summary judgment purposes, an issue of fact is "material" if it is a legal element of the claim, as identified by the substantive law governing the case, such that its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.Matsushita Electrical Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must view the evidence, and all factual inferences properly drawn from the evidence, in the light most favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). It is improper for this court to weigh conflicting evidence or make credibility determinations; instead, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. Where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989) (citation omitted).
DISCUSSION Discriminatory Termination
Defendant argues that it is entitled to summary judgment on plaintiff's § 1981 and Title VII discriminatory termination claims because plaintiff has not produced any direct or statistical evidence of discrimination and has failed to produce sufficient circumstantial evidence to survive summary judgment.
Defendant has produced evidence that the termination decision was made by Guy Mocek and Ken Forsythe. (Defendant's brief p. 18; Mocek aff.; Forsythe aff.). During his deposition, plaintiff testified as follows:
Q. Did Ken Forsythe or any other manager tell you — ever tell you, you were being terminated because you were Asian?
A. Chuck. Chuck Steven. But he never fired me. He keep telling me, but he never did, but I'm pretty cautious every day by going around near him, trying to get on his good side. But he remind me that, and you got that paper that showed that he would terminate me on site.
MR. ROBERSON: Sam, he's asking you did they tell you they were going to terminate you because you were Asian. Did they say that to you?
A. Yes.
Q. Chuck Steven?
A. Chuck Steven say it, Guy Morecheck, and Ken Forsythe said it.
Q. When did Guy say it and when did Ken say it? Let's start with Guy first.
A. Guy — when he come down here in meeting. He might come once a month or twice a month. And I liked to go up to him because he district. He's above my manager. Sometime he happy, he talk to me nicely. Sometime he just say, hey. He said, Don't ask me anymore. He said, I'm tired. He said, You're not going to get anywhere. You keep asking me. I'm going to fire your ass or tell Ken to fire your ass, and then they laugh about it. And then they just walk out.
Q. Well, did he say he was going to fire you because you were Asian or because he didn't like what you were asking him?
A. I think both. Either he tired me keep asking him, because I keep asking every time he come down. I'm asking for something all the time. He just wanted me to stop, I think, and he even pointed out that I'm not going to succeed with the company. They're not going to promote you. Ijust told you to repeat at that time.
(Khotsombath depo., pp. 226-28) (emphasis added).
In order to establish a case under Title VII [or § 1981], a plaintiff may use three different kinds of evidence of discriminatory intent: direct evidence, circumstantial evidence or statistical evidence. The analytical framework and burden of production varies depending on the method of proof chosen. If a plaintiff can provide direct evidence of discriminatory intent, then the employer must prove by a preponderance of the evidence that the same employment decision would have been made in the absence of the discriminatory intent.
"The Supreme Court has held that the test for intentional discrimination in suits under § 1981 is the same as the formulation used in Title VII discriminatory treatment causes." Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 939 (11th Cir. 1991) (citingPatterson v. McLean Credit Union, 491 U.S. 164, 185-87 (1989)).
* * * * *
Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption. Therefore, remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (citations omitted).
"[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of discrimination." One example of direct evidence would be a management memorandum saying, "Fire Earley — he is too old." But the evidence at issue here, at most, suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence; by definition then, the evidence is circumstantial.Earley v. Champion International Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990) (citations omitted). The McDonnell Douglas/Burdine framework was established by the Supreme Court for evaluating a plaintiff's claims of discrimination where there is no direct evidence of discrimination.See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997).
The court concludes, based on plaintiff's clarification of his previous testimony that Mocek had said "they were going to terminate [plaintiff] because [he was] Asian," (Khotsombath depo., p. 226-27), that plaintiff has not introduced direct evidence of discrimination as to Mocek. However, although defendant's counsel pursued plaintiff's testimony regarding Mocek, he did not further question plaintiff about his testimony that Forsythe also stated that they were going to terminate plaintiff because he was Asian. The court concludes that plaintiff's testimony that Forsythe — one of the decision-makers — told plaintiff "they were going to terminate [him] because [he was] Asian" is direct evidence of discrimination as to plaintiff's termination. Accordingly, there is no need to pursue an analysis using the McDonnell Douglas/Burdine framework, and defendant is not entitled to summary judgment on plaintiff's discriminatory termination claims.
The court found no further questioning on this point in its review of the deposition. Defendant, in its reply brief, discusses plaintiff's testimony regarding Mocek, but does not direct the court to any such further testimony regarding Forsythe. (See Defendant's reply brief, pp. 2-5).
Retaliation Claims Title VII
Defendant contends that it is entitled to summary judgment on plaintiff's Title VII retaliation claim because plaintiff did not allege retaliation in a charge filed with the Equal Employment Opportunity Commission (EEOC). This argument is without merit. In plaintiff's EEOC charge, in the block entitled "Cause of Discrimination Based On," plaintiff did not check the box for "Retaliation." (Exhibit 6 to Khotsombath depo.). In the first paragraph of the factual statement he provided in the charge, however, plaintiff states:
I was terminated on March 11, 1998, after submitting a letter describing the discrimination I was receiving from Ken Forsythe. In my letter I stated that I had not been able to advance with Sears like other white employees and that I had been subjected to a hostile working environment because of my national origin. My working hours had been cut back and my work was more closely scrutinized and I was subject to threats and harassment unlike the other white employees. Immediately after my submitting the letter, Mr. Forsythe said "I am going to have to terminate you, I can't have this."
(Id., ¶ 1 of factual statement). The scope of a judicial discrimination complaint is "limited to the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). Plaintiff clearly alleged in his EEOC charge the facts upon which he bases his present claim of retaliation. Accordingly, defendant is not entitled to summary judgment on plaintiff's Title VII retaliation claim on the grounds it has argued.
Section 1981Defendant argues that it is entitled to summary judgment on plaintiff's § 1981 retaliation claim because: (1) plaintiff cannot establish causation and, therefore, cannot establish a prima facie case; and (2) plaintiff cannot establish that defendant's proffered reason for his termination is pretextual. The court concludes, however, that plaintiff has presented direct evidence that he was terminated because of his complaint of discrimination. In his deposition, plaintiff testified as follows:
It is clear that a retaliation claim such as plaintiff presents in this case is cognizable under § 1981. Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405 (11th Cir. 1998).
Defendant does not challenge the remaining elements of the prima facie case.
BY MR. ROBERSON:
Q. Sam, I don't know if it's clear from the Record. Will you tell us, on the morning you were fired — or the day you were fired, again, who you handed the letter to, when you handed them, who was there, all of those facts?
A. In the morning time, right before the meeting I handed to Scott and Ken Forsythe.
The letter complained of discrimination on the basis of national origin and race. (See Exhibit 4 to Khotsombath depo.).
Q. Did you have separate copies?
A. Yes.
Q. How many?
A. I put them in the envelope.
Q. How many?
A. I got two. Because one I got to give to Scott, and one I got to give to Ken.
Q. Okay. At the time you handed them the letters, had anyone informed you, you were terminated?
A. Right.
Q. You had already been told you were terminated at the time you handed them the letters?
A. No.
Q. Well, tell me what the timing was then. That's what I'm confused about.
A. Okay. I give one to Scott Hines and walk by and give one to Ken.
Q. Where was [K]en?
A. He's in his office.
Q. Did you say anything to him?
A. I just handed him the letter, and he look at it, and he said, What is this? I said, Look inside. And he said — he kind of opened it up, and he looked, and he read it. And he said, Man, I can't have this. You write this? And I said Yeah. He said, Man he said, I just can't — why would you do a thing like that? And I said, That's how I feel. That's how you've been treating me. I told him that.
Q. Then was there a meeting held or what?
A. Yeah. After that, a meeting. They held a meeting, and then they called me back up in the office again after the meeting that same morning, and I — and he said, I have to get rid of you. He said, I've got to get rid of you.
Q. Did he tell you at that point that you false — accused you of falsifying those records?
A. No.
Q. What did he tell you?
A. He said — I said, What's the matter? He said, Well, I'm going to fire you. I can't have this. And I told him, I said, I'm going — I want to send one to the home office, too. I told him that. That's what happened that morning, and he still fired me.
(Khotsombath depo., pp. 238-40). This testimony constitutes direct evidence that plaintiff was terminated because of the letter.
Additionally, even if plaintiff had not presented direct evidence, he has offered sufficient circumstantial evidence to overcome defendant's motion for summary judgment. To establish a prima facie case of retaliation, plaintiff must show that (1) he engaged in protected activity; (2) the employer took an adverse employment action against him; and (3) there was a causal connection between the protected activity and the adverse employment action. Berman v. Orkin Exterminating Company, Inc., 160 F.3d 697, 701 (11th Cir. 1998).
If a prima facie case is established, the inference is raised that discriminatory intent motivated the adverse employment action, and the burden shifts to the employer to 'clearly articulate in a reasonably specific manner a legitimate non-discriminatory reason' for the adverse action with credible evidence. If the employer satisfies this burden, the burden again shifts to the plaintiff to show that the proffered reason is a pretext for the true discriminatory reason.Id. at 701-02. "To establish the causal relation element of [his] prima facie case of retaliation, [plaintiff] need only show 'that the protected activity and the adverse action are not completely unrelated.'" Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998) (citations omitted). Plaintiff may do so by presenting evidence that defendant knew of his protected activity and took an adverse employment action shortly thereafter. Id.
Defendant contends that plaintiff cannot establish causation because it is undisputed that the decision was made to terminate plaintiff's employment before he delivered the letter complaining of discrimination. Defendant has presented evidence that on March 10, 1998, Hines informed Forsythe that when Hines visited plaintiff's job site between 4:30 p.m. and 5:00 p.m., plaintiff was not there, but had left a work order in the customer's door indicating that he left the work site at 5:30 p.m. (Forsythe aff.). Forsythe states:
That afternoon, March 10, 1998, I called Guy Mocek, District Manager, and relayed the events of the day regarding Mr. Khotsombath. Based on his falsification of company documents, we decided to terminate his employment.
The next morning, March 11, 1998, I checked him in and he falsified his time sheet. I told him that we had a problem and relayed the events of the previous day and his falsification of company records. I told him that I had no choice but to let him go and he said okay. I informed him that he was terminated for falsifying company documents and completed the separation notice confirming this reason.
(Id.).
With regard to this issue, Mocek states:
Late in the afternoon of March 10, 1998, Mr. Ken Forsythe, Zone Manager, called and informed me of a situation which occurred that day involving Mr. Khotsombath; he falsified a work order by indicating he stayed at a customer's home until 5:30 PM. A supervisor went by the work site to conduct a CTCR between 4:30 and 5:00 PM and Mr. Khotsombath was not there. I told Ken to wait till he did his AM check in the next day with Sam and ask him what time he left and if the hours recorded on his time sheet were accurate. I gave him every opportunity to tell the truth. After he falsified his time and work order I authorized Mr. Forsythe to terminate Mr. Khotsombath's employment the next morning.
(Mocek aff.). Mocek's affidavit is ambiguous about when the final decision was made to terminate plaintiff's employment. Viewing his statement in the light most favorable to plaintiff, however, it appears that Mocek did not authorize plaintiff's termination until after he had been given "every opportunity to tell the truth," and after he had falsified both his time sheet and the work order. Further, while defendant relies on an Employee Separation Statement signed only by Forsythe and dated March 10, 1998, Forsythe states in his affidavit that he completed the separation notice on March 11, 1998.
In his testimony set forth above, plaintiff testified that: (1) when he gave the letter to Forsythe, he had not been told that he was terminated; (2) Forsythe said, "I can't have this," when he read the letter and again when he told plaintiff he was being terminated; (3) Forsythe did not tell plaintiff he was being fired because he had falsified company documents.
The court concludes that the evidence of record establishes the existence of a genuine issue of material fact regarding both the issue of causation and the issue of pretext. A reasonable jury could infer that the decision to terminate plaintiff's employment was made after plaintiff presented the discrimination complaint letter and that the reason articulated by defendant for plaintiff's termination was not the real reason for its action. Therefore, defendant is not entitled to summary judgment on plaintiff's § 1981 retaliatory discharge claim.
In addition to the testimony set forth above, plaintiff testified that he had not left the job site before the time he entered on the work order. (Khotsombath depo., p. 118). He further testified that many of his co-employees ("Anthony Thorn, David Vinson, Michael James, Scott Hines, Chris, Steve, Fred, Robert . . . [a]nd Charlie") had falsified the time they worked, that Redden and Forsythe were aware of the falsifications, and that they were not disciplined. (Id., pp. 119-21).
Defendant contends that, because plaintiff admitted during his deposition to having taken a longer lunch than he recorded on his time sheet, he cannot establish that defendant's reason for terminating him (falsification of his time) was pretextual. The court disagrees. Defendant has not introduced any evidence that either Forsythe or Mocek were aware of or relied on the lunch-hour time discrepancy and, thus, defendant has not "articulated" this discrepancy as a basis for plaintiff's termination. Instead, both Forsythe and Mocek indicate that plaintiff was terminated because he was not at the job site between 4:30 and 5:00 p.m. when Hines arrived, and that the work order left on the customer's door reflected that he had left at 5:30 p.m. (Mocek aff.; Forsythe aff.). See Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994)("[A]n employer may not satisfy its burden of production [of a legitimate, non-discriminatory reason] by offering a justification which the employer either did not know or did not consider at the time the decision was made.") (citations omitted).
Hostile Environment
Defendant contends that it is entitled to summary judgment on plaintiff's hostile environment claim because: (1) the conduct at issue was not sufficiently "severe or pervasive" to alter the terms and conditions of plaintiff's employment; and (2) plaintiff's failure to complain of harassment until the time of his termination precludes his claim.
Severe or Pervasive
To prevail on his hostile environment claim, plaintiff must establish that: (1) he belongs to a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his race or national origin; (4) the harassment affected a term, condition, or privilege of his employment; and (5) a basis for holding the employer liable. See Ellis v. Wal-Mart Stores, Inc., 952 F. Supp. 1513, 1518 (M.D. Ala. 1996). To satisfy the fourth element, conduct must be objectively "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). "[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is a physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23.
Defendant argues that plaintiff cannot establish that the conduct was sufficiently severe or pervasive to alter his terms and conditions of employment because: (1) the vast majority of his working time was spent at customers' residences and not in the office; (2) the racial name-calling was "in no way hostile or threatening, but rather, in Plaintiff's own words, amounted to teasing and laughing;" and (3) there is no evidence the conduct unreasonably interfered with plaintiff's work performance. (Defendant's brief, pp. 39-40).
The Eleventh Circuit has observed that to create an actionable hostile environment, racial slurs must be "so 'commonplace, overt and denigrating that they created an atmosphere charged with racial hostility.'" Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995) (quotingEEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990)). There is evidence of record that plaintiff was subjected to overt and denigrating racial slurs almost daily for the duration of his employment with defendant. Plaintiff testified that the racial comments made him "feel bad" and upset his whole day, that he lost his confidence and that "it makes a harder place for you to work." (Khotsombath depo., pp. 61-62, 71-72, 219-22, 241-42). Upon application of the Harris factors to the evidence of record, the court concludes that there is a genuine issue of material fact regarding whether the complained of conduct was sufficiently severe or pervasive to alter the terms and conditions of plaintiff's employment.
Employer Liability
There is evidence that the conduct at issue was engaged in by both plaintiff's co-workers and his supervisors. For harassment by co-workers, whether the employer may be held liable depends upon whether the employer "had adequate notice of the harassment and, if so, whether it took adequate remedial steps to abate it." Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999). Employer liability for harassment by those with supervisory authority over the plaintiff is governed by the rule established by the Supreme Court in Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) and another case decided the same day, Burlington Industries, Inc. v. Ellerth, 118 S.Ct, 2257 (1998). The Court held:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Ellerth, 118 S.Ct. at 2270.
In this case, plaintiff was terminated. There is evidence that plaintiff's supervisors, including Forsythe and Mocek — the decision-makers with regard to that termination — participated in the racial name-calling and stereotyping at issue in this case. (See Khotsombath depo., pp. 71-72, 219-20, 228-29; Vinson aff.; Wooten aff.). Additionally, as previously discussed, there is evidence sufficient to present a jury question regarding whether plaintiff's termination was racially motivated and retaliatory. Since there is evidence creating a genuine issue of material fact regarding whether the harassment by plaintiff's supervisors culminated in his termination, defendant may not use the Faragher/Ellerth affirmative defense on the present motion. Therefore, defendant is not entitled to summary judgment on plaintiff's hostile environment claim arising from his allegations of supervisory harassment on the basis of plaintiff's asserted failure to complain.
Additionally, the court concludes that Sears is not entitled to summary judgment on plaintiff's claim arising from harassment allegedly perpetrated by plaintiff's co-workers. Defendant points to evidence that it has promulgated an equal opportunity policy and reporting procedures, and that plaintiff did not complain pursuant to those procedures until the day of his termination. Defendant relies on Coates, supra, as authority for its argument that "[p]laintiff's delay and deliberate failure to take advantage of corrective opportunities provided by Sears unreasonably deprived the company of the opportunity to correct the alleged harassing behavior," and that "[p]laintiff's unreasonable delay is fatal to his harassment claims." (Defendant's reply brief, p. 31; see also defendant's brief, pp. 40-41).
Defendant's policy is included in defendant's Employee Personnel Policies Manual dated February 1997. (Defendant's Exhibit E). The policy lists the employee's manager as a person to whom the employee may complain about discrimination, and also provides that an aggrieved employee may instead complain to the Director of Human Resources or use a 1-800 hotline. (Id., p. 18). Plaintiff received a copy of this policy on January 21, 1997. (See Receipt following p. 60 of Manual, Defendant's Exhibit E; Khotsombath depo., pp. 177-78). It is undisputed that, on March 11, 1998, plaintiff presented his zone manager, Forsythe, with a letter complaining of discrimination. (Defendant's Exhibit 4 to Khotsombath depo.; Forsythe aff.). Defendant does not argue that this letter was an insufficient complaint under its policy, or that it was not presented to the right person under the policy. Defendant argues only that by waiting until the day of his termination to complain, plaintiff unreasonably deprived defendant of the opportunity to correct the harassing behavior.
Defendant has not directed the court to evidence of any earlier policy.
In Coates, the case relied on by defendant, the plaintiff failed to lodge an adequate complaint in compliance with her employer's complaint procedure until after the sexual harassment at issue had persisted for a substantial period of time. When the plaintiff gave her supervisor notice of the harassment, the alleged harasser was immediately suspended with pay pending an investigation. He resigned the same day. The plaintiff took a medical leave of absence four days later and then resigned. Noting that it was "impossible to say that [the supervisor's] action in response to [plaintiff's] complaint was anything but prompt and effective, the court concluded that "no genuine issue of material fact exists to support a finding that Coates acted reasonably to put Sundor on notice of the problem or that, when notice was given, Sundor responded unreasonably to her complaint." Id., 164 F.3d at 1366.
The exact duration is unclear from the opinion. It was at least eleven months and may have been as long as twenty months. 164 F.3d at 1362-63.
Had plaintiff in the present case resigned immediately after delivering his discrimination complaint to Forsythe, the court would agree that his hostile environment claim would be barred by Coates. However, plaintiff has presented a genuine issue of fact regarding whether he was terminated in retaliation for having lodged that complaint. Thus, there is evidence that when plaintiff did present a complaint in accordance with defendant's policy, the defendant responded unreasonably and unlawfully to the complaint. The court does not read Coates to require dismissal of plaintiff's hostile environment claim under these circumstances. To hold otherwise would be to determine that where an employee has delayed in pursuing a complaint of discrimination, an employer may avoid liability on a hostile environment claim by responding to the complaint with a retaliatory termination. Defendant is not entitled to summary judgment on plaintiff's claim of co-worker harassment on the basis argued by defendant.
In Coates, the employer's policy directed that "[a]ny employee who feels he or she is being sexually harassed should immediately contact their line manager, Personnel Contact, or other manager with whom they feel comfortable." 164 F.3d at 1364. The Eleventh Circuit noted that "[w]ith this policy, Sundor itself answered the question of when it would be deemed to have notice of the harassment sufficient to obligate it or its agents to take prompt and appropriate remedial measures. Our task is thus to determine whether Coates made reasonably sufficient use of the channels created by Sundor's policy to put Sundor on notice of the ongoing harassment. Only if we determine that adequate notice of the harassment was given to Sundor do we then move to determine whether Sundor responded reasonably to her complaint." Id. Since the Coates court did reach the question of whether Sundor's response was reasonable (id. at 1366), the Eleventh Circuit implicitly concluded that Coates' report of the harassment to her supervisor, Christman, constituted adequate notice pursuant to the policy.
Promotion Claims
Defendant contends that it is entitled to summary judgment on plaintiff's promotion claims because he cannot produce evidence that "similarly situated employees outside of his protected class with a similar performance history at Sears as he and with similar qualifications were offered promotions" and, thus, cannot establish a prima facie case. (Defendant's brief, p. 32). Defendant contends that plaintiff must demonstrate "that a similarly situated person outside of his protected group, i.e. another exterminator with eight written performance warnings, was granted a promotion for which Mr. Khotsombath was more qualified." (Id., p. 33). The court disagrees. To establish a prima facie case of discrimination with regard to a promotion decision, a plaintiff must demonstrate: (1) that he is a member of a group protected by Title VII; (2) that he sought and was qualified for a position that the employer was attempting to fill; (3) that despite his qualifications, he was rejected; and (4) after his rejection, the employer either selected a person outside plaintiff's protected class or continued to attempt to fill the position. Walker v. Mortham, 158 F.3d 1177, 1186 (11th Cir. 1998). The only one of these elements challenged by defendant in the present motion is that pertaining to plaintiff's qualifications. In Walker, the Eleventh Circuit held that, at the prima facie case stage of the analysis, a plaintiff need not establish that he is more qualified than or equally qualified as the person selected for promotion. Id., p. 1192. This court concludes that, like relative qualifications, relative disciplinary history is not an appropriate part of the analysis of the plaintiff's prima facie case regarding promotion discrimination.
The prima facie case formulation set forth by defendant in its brief pertains to allegations of discriminatory application of discipline.
The court recognizes that, in recent cases, the Eleventh Circuit has included relative qualifications in its recitation of the elements of a prima facie case of promotion discrimination. See Alexander v. Fulton County, Ga., 207 F.3d 1303 (11th Cir. 2000); Lee v. GTE Florida, Inc., 2000 WL 1288684 (11th Cir. Sept. 13, 2000). However, these cases do not hold that a demonstration of relative qualifications is required to support a prima facie case, nor do they address or question the explicit holding of Walker with regard to relative qualifications. See Alexander, 207 F.3d at 1339; Lee, 2000 WL 1288684 at *3.
Defendant has not directed the court to any evidence of record regarding the minimum qualifications for the positions at issue or to evidence that plaintiff failed to meet those qualifications. Thus, the burden has not shifted to plaintiff to produce evidence demonstrating the existence of a material issue of fact regarding his qualifications for each promotion. See Clark v. Coats Clark, 929 F.2 604, 608 (11th Cir. 1991)("The moving party bears the initial burden to show the district court, by reference to materials on file, that there are not genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.").
Defendant further argues that plaintiff cannot establish that Sears' articulated reason for failing to promote him is pretextual. Under theMcDonnell Douglas/Burdine framework, however, plaintiff need not produce evidence of pretext unless and until defendant has met its evidentiary burden of articulating a legitimate nondiscriminatory reason for its decision. "The defendant may not satisfy its burden by presenting a hypothetical reason for the employment decision. . . .," but must "'clearly set forth, through the introduction of admissible evidence,' the reason for its adverse employment decision." Walker, supra, 158 F.3d at 1184. See also Turnes v. AmSouth Bank NA, 36 F.3d 1057, 1061-62 (11th Cir. 1994).
Defendant argues extensively that plaintiff was not promoted because of his disciplinary write-ups. Defendant has not, however, identified the decision-makers with regard to each of the promotions at issue, and has not introduced any deposition or affidavit testimony from those decision-makers stating that plaintiff was not selected for the particular promotions because of his disciplinary record. (See, e.g., Mocek and Forsythe affidavits). Instead, defendant has cited only the following testimony from plaintiff's deposition (see Defendant's brief, p. 15; Defendant's reply brief, p. 22):
Q. Why did you have a bad feeling? You said you went back to the office to pick up your paycheck, because you had a bad feeling. Why did you have a bad feeling?
A. It's — because ever since we have a new manager, every day is a bad-feeling day. It's just a matter of time. I don't know whether my job is going to last. I go there every morning and try to be quiet or not to talk to so many people, or I don't want to start anything, because I want that promotion. If I make any — he say, you got too many write-up. You got too many write-up. We cannot promote you. And all that stuff. . . .
(Khotsombath depo., p. 135). It is unclear from this testimony exactly who told plaintiff he had too many write-ups. Defendant, in its reply brief, interprets this testimony as relating to Mocek only. (Defendant's reply brief, p. 22). However, in its initial brief, defendant argued that plaintiff had testified that either Forsythe or Mocek had made the statement. (Defendant's brief, p. 15). Plaintiff was hired in April 1996. Mocek became the District Manager in April 1997, and Forsythe became the Zone Manager in December 1997. (Mocek aff.; Forsythe aff.). Thus, plaintiff could have been referring to either of them as the "new manager."
Plaintiff has cited testimony that Redden and Forsythe were the decision-makers with regard to one of the promotions at issue — Hines' promotion to supervisor in early 1998. (See Plaintiff's statement of facts, ¶ 18; Khotsombath depo., p. 108). In view of the ambiguity in plaintiff's testimony, however, the court cannot attribute the statement regarding "too many write-ups" to Forsythe. Neither party has directed the court to evidence regarding the identity of the decision-maker concerning any of the other promotions of which plaintiff complains.
The court concludes that defendant has failed to meet its burden of articulating a legitimate nondiscriminatory reason for its promotion decisions and, thus, that plaintiff need not introduce evidence of pretext. Accordingly, the defendant has not demonstrated that it is entitled to summary judgment on plaintiff's promotion claims.
Terms and Conditions of Employment
Plaintiff claims that he was subjected to disparate treatment in violation of Title VII and § 1981, specifically:
Plaintiff was given extremely large work assignments and forced to complete them in an unreasonably small amount of time. Plaintiff was assigned to inspect and treat large homes in fewer hours than the white employees were given. Plaintiff's work was more closely scrutinized, and Plaintiff was not scheduled to work as many hours as white employees.
(Complaint, ¶ 17).
Defendant argues that plaintiff's deposition testimony with regard to this claim does not establish that he was treated differently from similarly situated employees outside of his protected class. "To establish a prima facie case of disparate treatment based on conditions of employment . . . [p]laintiff is required to show that: (1) he belongs to a protected class; and (2) he was similarly situated to a person who was not a member of the protected class; but (3) did not receive a condition of employment provided to that person." Givhan v. Electronic Engineers, Inc., 4 F. Supp.2d 1331, 1340-41 (M.D. Ala. 1998). In his deposition, plaintiff testified:
Q. In your letter, it says that your working hours have been cut back, your work is more closely scrutinized. . . . How have your working hours been cut back?
A. Well, they gave me work with lesser hours, just say a booster take two hours to do that, or two and a half hours. Normally, they give you three hours to do that. They say, no, you can't spend three hours there. You spend an hour and a half, two hours maximum, and then you go home. So it come back through the 10 checks again. Before, I was working a lot of overtime. Yes, I make more money, because I'm working overtime. Because of that, not because I make more an hour than anybody else. They give it to — to somebody else to do — to do termite work.
Q. Who got — who got more hours than you?
A. The new guy — new termite tech, Michael James and Kyle Nelson, Anthony Thorn, and James something. I've forgotten his last name.
Q. When did they start cutting your hours back?
A. When the new manager coming in, the — Ken Forsythe.
Q. How was your work more closely scrutinized?
A. They always — sometimes during the job, sometimes after I finished the job, they go out there, look at the job, see what I done to the job, and criticizing it. or they're checking the paperwork, and see how much product I put out, if I put out too much, if I not put out enough, if I spend too much time on the work site, or I'm slow getting to the job. So — and I need to call them once I get to the job, okay?
Now, if I want to go take a break or something, I need to tell them. Say, hey, I'm out of here for about 30, 40 minutes or so. I'll be right back. They want to keep a record of my time, everything I do, every second. But they, themselves, not going to do what I did on that job or want to do on the job, because — that's how I know. That's why they came down to on that job. There's no way for them to know that time, because I was there.
Q. How do you know that you were more closely supervised than other termite specialists?
A. Well, beside they told me themselves. They actually go out there to the job site, checking on me. After I finished the job, they went out there, look at the job.
Q. How do you know that?
A. Because they're there, and they tell me — that's one occasion it happened with me and Ken Forsythe under that house. He went by — I'm not finished the job yet. He went by and tell me how to do — how to put the plastic under the house. And that's how him and me got into an argument or something.
Q. Well, how do you know that other termite specialists didn't receive the same level of scrutiny?
A. Because they don't go check on them. If they do go check on them, they brought them a drink or something.
Q. How do you know that?
A. Because sometime I went with one of them guy. Just say, for example, Anthony Thorn, he went with me. He helped me do that job. I'm okay then, but they still said, is he doing any work? Still — finger still pointing at me. Is he done enough work for us today?
Q. I'm a little confused now, because you told us earlier that you would go out and you work by yourself?
A. Yes.
Q. An that's what you regularly did?
A. Right. Yes.
Q. And now you're going out on other — seeing how other super — how other termite specialists are being supervised, and you're doing that regularly, too?
MR ROBERSON: Object to the form on that. That's not what he testified to. You can answer it, Sam.
A. Yeah, I tell them. I know what he talking about. Okay. Sometime you have — just say, the job is too big, okay? It take too much time to finish the job, or that's the only time I'm with them, with a new tech, a termite tech. They arrive with me. They still might overseeing me, even though they just been with the company lesser time than I do. They don't know much about the job. They're still supervising me, telling me what to do. Said — if Kyle Nelson with me, say, Kyle, you keep an eye on Sam, you understand? Don't let him out of your sight. If Anthony Thorn with me, Anthony, you keep an eye on him, you understand? Now, that's how I know.
(Khotsombath depo., pp. 158-62).
In his response to the motion for summary judgment, plaintiff does not make any argument regarding his allegations of fewer hours or more scrutiny. Instead, he argues that he has produced evidence that he was "assigned more retreats than the white employees, thereby costing plaintiff additional earnings." (Plaintiff's brief, p. 24). Plaintiff has filed the affidavit of Clarence Lanthrip, who was plaintiff's immediate supervisor from February 1996 through November 1997. Lanthrip states:
Sam Khotsombath was a very qualified, if not the most qualified, pest control applicator. Dale Redden assigned Mr. Khotsombath "retreats" as opposed to new business. New business would have allowed Mr. Khotsombath to earn more money. New business and "retreats" were at the discretion of Dale Redden.
(Lanthrip aff.). Tineil James, a previous co-worker, states that "[w]hites were given mostly new business, while Sam was given a lot of 'retreats." (James aff.). No money is made on 'retreats.'" (James aff.).
The court concludes that plaintiff's evidence regarding receiving fewer hours, closer scrutiny and more re-treats than white employees is conclusory and lacks sufficient detail to create an issue of material fact precluding summary judgment. Fed.R.Civ.P. 56(e) requires that the party opposing summary judgment "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); See also Miller v. Citizens Security Group, Inc., 116 F.3d 343, 346 (8th Cir. 1997)("A conclusory statement in an affidavit, however, cannot create a genuine issue of material fact which precludes summary judgment."); Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998)("Rose-Maston also alleges that she was treated differently than similarly situated white employees. Specifically, she submits that she was subjected to an evaluation process different from that used with her fellow employees and that certain white employees received promotions for which they were not qualified. These unsubstantiated and conclusory allegations are insufficient to support an inference of pretext."). Thus, on this claim, plaintiff has failed to establish the existence of a genuine issue of material fact regarding whether he was treated differently than a similarly situated non-Asian employee. Accordingly, defendant's motion is due to be granted as to this claim.
CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant's motion for summary judgment is GRANTED as to plaintiff's claim that he was discriminated against with regard to his hours, scrutiny and work assignments. In all other respects, the motion is DENIED.