United States Court of Appeals Fifth Circuit F I L E D REVISED DECEMBER 15, 2003 September 30, 2003
Charles R. Fulbruge III UNITED STATES COURT OF APPEALS Clerk For the Fifth Circuit
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No. 02-20516
FRANK, ET AL., Plaintiffs-Appellees,
VERSUS
XEROX, Defendant-Appellant.
No. 02-20416
HORN, ET AL, Plaintiffs-Appellees,
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Appeal from the United States District Court for the Southern District of Texas
Before JONES and CLEMENT, Circuit Judges, and FELDMAN, District Judge.*
FELDMAN, District Judge:
This appeal, which presents several issues, arises out of
Appellants’ fretful employment relationships with Xerox
Corporation. The Appellants in these related cases filed several
lawsuits against Xerox under Title VII and 42 U.S.C.§1981(2003),
alleging that because they are black Xerox denied them promotions
and pay increases and forced them to work in a racially hostile
work environment. Xerox moved for summary judgment as to each
Plaintiff. The district court granted those motions and denied
Plaintiffs’ motions for reconsideration. They appeal the
district court’s rulings. We reverse in part, affirm in part,
and remand.
I.
Xerox, a well-known manufacturer and marketer of copying
machines, is also a provider of facilities management services,
called Xerox Business Services(XBS), to commercial customers
throughout the United States. These management services include
in-house copying, printing and mailroom services.
The focus of these lawsuits concerns Xerox’s so-called
* District Judge for the Eastern District of Louisiana, sitting by designation.
2 Balanced Workforce Initiative(BWF). Xerox implemented the
program in the 1990's for the stated purpose of insuring that all
racial and gender groups were proportionately represented at all
levels of the company. The BWF targets were established on an
annual basis and were based on government labor force data.
Throughout the time Xerox had the BWF in place, Xerox produced
reports listing the actual and desired racial and gender
compositions of each office. These reports indicated to the
company that blacks were over-represented and whites were under-
represented in Xerox’s Houston office in comparison to the local
population.
In 1991, the general manager of the Houston XBS office, Doug
Durham, directed that the Houston office create its own localized
BWF reports to remedy the disproportionate racial representation.
The reports set specific racial goals for each job and grade
level and indicated whether there were any disproportionate
representations.
Another one of Xerox’s practices that is under attack in
these employee disputes is Xerox’s use of “Minority Roundtables.”
In 1997, to address the concerns of several of its black
employees, Xerox decided to hold “Minority Roundtables” at its
Houston office. Xerox insists that at these meetings it tried to
alleviate the misperceptions of the participants. For example,
many of the participants felt that Xerox discriminated against
3 black employees in hiring, promotions and compensation. They
also voiced concerns about the lack of any blacks on Durham’s
senior management team.
We turn now to the employees who sued.
II.
A. Carol Frank
Carol Frank joined Xerox’s Houston office in February 1985
as a Production Supervisor III. During her employment at Xerox,
Frank received several promotions and salary increases. In
September 1988, Frank was promoted to Supervisor II and she
worked in that role until 1991, when she applied to become a
Production Manager/Manager of Customer Operations(MCO). Frank
was not chosen for the position. Xerox claimed that Frank was
not qualified for the position and gave the job to Joe Olivarez,
a Hispanic male. Xerox stated that Olivarez was the most
qualified candidate for the job.
In 1997 Frank applied for the Customer First Manager
Position. After interviewing the candidates, Durham decided not
to fill the position because he believed none of the candidates
was sufficiently qualified. Frank asserts that she believed at
4 the time that she had been discriminated against because of her
race. Frank also applied for another MCO position in December
1998. Again, Olivarez was chosen over her. Xerox reiterates
that he was chosen because he was the most qualified candidate.
In March 1999 Frank claims she began to suffer from
harassing and discriminatory treatment by her supervisor, Linda
Carter. She claims Carter’s conduct caused her to resign from
her position. On March 29, 1999, Frank submitted a letter of
resignation and gave two weeks’ notice. Thereafter, she filed a
discrimination charge with the Equal Employment Opportunity
Commission(EEOC), alleging race, gender and disability
discrimination. The EEOC found no cause of action and dismissed
the charge on March 28, 2000.
B. Henrietta Williams
Henrietta Williams started working at Xerox in 1982 as a
Production Operator II in the Houston office. During the first
seven years of her employment, she received two grade level
salary increases and was promoted to Training Administrator.
Williams claims that after Doug Durham transferred to the Houston
office from New York, she was forced out of her Training
Administrator position and replaced by Sharon Talty, a white
female, and she was demoted to Production Supervisor. Xerox
responds that in 1998 Williams attempted to resign, but that
5 Durham and another manager persuaded her to stay. In 1999,
Williams officially resigned. Williams asserts that she resigned
because of the racially discriminatory working conditions,
constant harassment, lack of employment opportunities and denial
of pay raises. Xerox maintains that Williams never asserted
discrimination or intolerable working conditions when she left,
and that she had not actually applied for a promotion in her last
three years at the company.
C. Sibyl Arterberry
Sibyl Arterberry began her career at Xerox in 1991 as a
Production Operator IV. By 1995 she had been promoted several
times, and by 1997 she was a Lead Account Associate for one of
Xerox’s accounts. Arterberry claims that she was denied pay
increases because of her race. Xerox asserts that she was not
eligible for a pay increase in her Account Associate position
because she had reached the highest grade level for her position.
Xerox adds that it tried to transfer her into another position
which would allow her to receive a higher salary, but she
refused. Arterberry was later transferred to another account and
did get a pay increase. Arterberry was still working for Xerox
when the company was sued.
D. Iris Debose
6 Iris Debose came to work at Xerox in 1985. For the first
five years of her employment she worked as an Associate Customer
Services Support Representative. After that time, her title was
changed to Administrative Secretary, although she performed the
same duties. Debose claims that she received outstanding reviews
of her performance until 1991 when Doug Durham transferred to the
Houston office. She says after his arrival, she was denied
promotions to positions which were eventually given to white
females with inferior qualifications. She also claims that she
was harassed and denied promotions, equal pay and equal pay
raises because she participated in the Minority Roundtables.
Debose resigned from Xerox in 1999.
E. Cynthia Walker
Cynthia Walker was hired in September 1985 as a Production
Operator in the Houston office. By 1990 she had received several
promotions including a promotion to Customer Support
Representative, a position she held until September 1997. From
1990 until 1997, Walker received annual merit increases and was
promoted to higher pay grade levels. In addition, during that
same time period, Walker applied for three different positions.
Two of the positions had been eliminated before they were filled
and the third position was not awarded to her, Xerox claimed,
because she was not qualified. In 1997 Walker was transferred to
7 a Support Analyst position and received a five percent pay raise.
In 1998 she was transferred to a lateral position. In April
2000, after several organizational changes at the Houston office,
Walker resigned citing lack of opportunities. Apparently, she
believed that she should have been offered positions that were
given to two of her non-black co-workers.
F. Derrey Horn
Horn began work at Xerox in May 1984 as an entry level
Production Operator IV. However, over the years Horn quickly
moved up in the company. In 2002 Xerox received an anonymous
complaint that some of the female employees had been sexually
harassed by Horn. After an investigation, Xerox determined that
the complaints were legitimate and terminated his employment.
Horn did not file a discrimination charge with the EEOC.
Instead, he joined in this lawsuit with the other five
plaintiffs.
III.
We review summary judgment de novo. Walker v. Thompson, 214
F.3d 615, 624 (5th Cir. 2000). Summary judgment is appropriate “if
the pleadings, depositions, answers to interrogatories, and
8 admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 106 S.Ct.
2548, 2552 (1986). "If the moving party meets the initial burden
of showing there is no genuine issue of material fact, the burden
shifts to the nonmoving party to produce evidence or designate
specific facts showing the existence of a genuine issue for trial."
Allen v. Rapides Parish Sch.Bd., 204 F.3d 619, 621 (5th Cir.
2000)(internal quotations and citations omitted). Doubts are to be
resolved in favor of the nonmoving party, and any reasonable
inferences are to be drawn in favor of that party. See Burch v.
City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999).
A. Disparate Impact Claims
Williams, Arterberry, Debose, Walker and Horn all asserted
disparate impact claims against Xerox. The district court granted
summary judgment in favor of Xerox on all of these issues.
To establish a disparate impact claim, the claimants must
prove as part of their prima facie case that Xerox maintains a
facially-neutral policy or practice that caused a disparate impact
on its black employees. See 42 U.S.C. §2000e-2(k)(1)(A)(i)(2003);
Gonzales v. City of New Braunfels, 176 F.3d 834, 839 n.26 (5th Cir.
1999). To do this, the claimants must engage in a “systematic
9 analysis” of the policy or practice. Munoz v. Orr, 200 F.3d 291,
299(5th Cir. 1999). In doing so, they “must, of necessity, rely
heavily on statistical proof.” Id. at 300.
Appellants point to the BWF reports and to evidence of the
statistical data that Durham used from 1994 to 1999 to reduce the
percentage of black employees in Houston. While Xerox asserts that
the Plaintiffs’ statistical evidence is inaccurate, incomplete and
has not been analyzed, we find that the evidence creates a material
issue of fact as to disparity and, therefore, summary judgment was
inappropriate.
B. Salary Disparity Claims
Arterberry, Debose, Williams, Walker and Horn all asserted
salary disparity claims against Xerox. In reviewing the record,
we find that the district court failed to address these claims.
Thus, we remand this issue to the district court for further
proceedings.
C. Adverse Employment Action Claims
Frank, Debose, Williams, Arterberry and Walker all asserted
claims for several adverse employment actions that took place
throughout the 1990s. The district court found that most of
these claims were time-barred. Appellants assert that the
10 district court erred in determining that the claims were time-
barred; they urge that the continuing violations doctrine applies
to their claims.
i. Timeliness of Claims
A claimant must file a Title VII discrimination claim with
the EEOC within 300 days of the challenged discrimination. See
42 U.S.C. ~2000e-5(e)(1)(2003); Byers v. Dallas Morning News, 209
F.3d 419, 424 (5th Cir. 2000). Only two of the employees, Carol
Frank and Cynthia Walker, filed discrimination charges with the
EEOC. The others can only pursue Title VII claims if they can
"piggyback" onto a timely filed claim by either Frank or Walker.
See Allen v. United States Steel Co., 665 F.2d 689, 695 (5th Cir.
1982). Frank filed her claim on November 15, 1999, and Walker
filed her claim on June 19, 2000. Thus, the district court
correctly determined that the date for determining timeliness was
300 days prior to the filing of the first filed charge, or
January 19, 1999. See Celestine v. Petroleos de Venezuela, S.A.,
266 F.3d 343, 351 (5th Cir. 2001). Any bad conduct that occurred
prior to that date would be time-barred. See id. Similarly, one
must file a discrimination claim under §1981 within two years of
the adverse employment action. See Byers, 209 F.3d at 424. This
lawsuit was filed on June 29, 2000. Thus, claims for any adverse
employment actions under §1981 that occurred prior to June 29,
1998 are time-barred.
11 ii. Continuing Violations Doctrine
Appellants argue that the district court erred in finding
that the continuing violations doctrine does not apply to their
claims. They say that the continuing violations doctrine applies
because: 1) the various adverse employment actions constituted an
organized scheme to discriminate rather than discrete
occurrences; and 2) that their claims show a "pattern-or-
practice" of discrimination which allows them to be considered
continuing violations. We affirm the district court’s ruling
that the continuing violations doctrine does not apply here.
Under the continuing violations doctrine, a plaintiff may
complain of otherwise time-barred discriminatory acts if it can
be shown that the discrimination manifested itself over time,
rather than in a series of discrete acts. See Huckabay v. Moore,
142 F.3d 233, 238-39 (5th Cir. 1998). However, in Huckabay, we
also confirmed the rule that discrete actions, such as those
asserted by Appellants, are not entitled to the shelter of the
continuing violation doctrine. Id. at 239-40. Appellants
complain of separate and varied acts and decisions that occurred
at different times and discretely applied in different ways to
different employees. And, beyond speculation, we cannot say that
the record confirms an organized or continuing effort to
discriminate. The pattern-or-practice argument also fails. See
Celestine, 266 F.3d at 355-56 (pattern-or-practice method of
12 proof not available in private, non-class action lawsuits). In
addition, one is expected to act as soon as the facts of
discrimination are or should be apparent to a reasonably prudent
person similarly situated. See Messer v. Meno, 130 F.3d 130,
134-35(5th Cir. 1997).
D. The Remaining Adverse Employment Action Claims
After correctly determining that most of Appellants’ claims
were time-barred and not saved by the continuing violation doctrine,
the district court then dismissed their remaining claims for failure
to satisfy their burden of proof in establishing discrimination.
We reverse the district court on this issue.
In addressing the remaining claims, the district court applied
the burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 93 S.Ct. 1817, 1824-26 (1973). McDonnell Douglas instructs
that the plaintiff must first establish a prima facie case of
discrimination. Id. Once the plaintiff presents a prima facie
case, the defendant must then articulate a legitimate,
nondiscriminatory reason for the questioned employment action. Id.
If the defendant is able to do so, the burden shifts back to the
plaintiff to produce evidence that the defendant's articulated
reason is merely a pretext for discrimination. Id.
To establish a prima facie case of discrimination, a plaintiff
must show: (1)that she was a member of a protected class; (2) that
13 she was qualified for the position; (3) that she was discharged; and
(4) after she was discharged, she was replaced with a person who is
not a member of the protected class. Bauer v. Albermarle Corp., 169
F.3d 962, 966 (5th Cir. 1999). Of course, the plaintiff may always
present a prima facie case by providing direct evidence of
discrimination. Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191
(5th Cir.2001). We understand that when there is sufficient direct
evidence of discriminatory motive, the McDonnell Douglas framework
does not apply. See, e.g., Price Waterhouse v. Hopkins, 490 U.S.
228 (1989). And so, our court has earlier held that when "a
plaintiff presents credible direct evidence that discriminatory
animus in part motivated or was a substantial factor in the
contested employment action, the burden of proof shifts to the
employer to establish by a preponderance of the evidence that the
same decision would have been made regardless of the forbidden
factor." Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861(5th
Cir. 1993).
We find that the existence of the BWF program is sufficient to
constitute direct evidence of a form or practice of discrimination.
See Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d
1095, 1110 (11th Cir. 2001). "[T]he existence of an affirmative
action plan," the Eleventh Circuit has written, "when combined with
evidence that the plan was followed in an employment decision is
sufficient to constitute direct evidence of the unlawful
14 discrimination unless the plan is valid." Id. at 1111; see Dallas
Fire Fighters Ass’n v. City of Dallas, Tex., 150 F.3d 438, 440-42
(5th Cir. 1998) (discussing factors that weigh on the validity of
affirmative action plans). See also Messer, 130 F.3d at 135-36.
Here, in the BWF summary reports, Xerox candidly identified explicit
racial goals for each job and grade level. The reports also stated
that blacks were over-represented and whites were under-represented
in almost every job and grade level at the Houston office. Senior
staff notes and evaluations also indicate that managers were
evaluated on how well they complied with the BWF objectives. A jury
looking at these facts could find that Xerox considered race in
fashioning its employment policies and that because Plaintiffs were
black, their employment opportunities had been limited. Because
the district court ignored the existence of the BWF program and
applied the McDonnell Douglas standard when it analyzed Plaintiffs’
non-time-barred claims,1 we reverse the district court’s dismissal
of these claims.
E. Hostile Work Environment Claims
Debose, Williams, Arterberry and Walker also asserted claims
for hostile work environment. We affirm the district court’s grant
1 The non-time-barred claims are the Title VII claims that occurred after January 19, 1999 and the §1981 claims that occurred after June 29, 1998.
15 of summary judgment in favor of Xerox as to these claims. We find
that no serious issues of material fact exist.
To prevail on a hostile work environment claim, the Plaintiffs
must prove that: 1) they belong to a protected group; 2) they were
subjected to unwelcome harassment; 3) the harassment complained of
was based on race; and 4) the harassment affected a term, condition,
or privilege of employment. See Celestine, 266 F.3d at 353-54. The
Plaintiffs must subjectively perceive the harassment as sufficiently
severe or pervasive, and this subjective perception must be
objectively reasonable. Harris v. Forklift Sys., Inc., 114 S.Ct.
367 (1993). The fact-finder must consider the frequency of the
discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and whether it unreasonably interferes
with an employee’s work performance. Walker v. Thompson, 214 F.3d
at 625. Here, the Appellants assert that the BWF target goals were
so intimidating, severe and pervasive, that it was objectively
reasonable for them and other black employees to believe that they
were in a racially hostile work environment that precluded them from
advancing to a higher level because of their race.
Xerox counters that the use of the BWF reports did not and
could not objectively create a hostile work environment, and that
Appellants have not presented any evidence of how the use of the
reports actually affected them or any other employee. Xerox adds
that Appellants’ subjective belief that the company intended to use
16 the BWF reports to avoid promoting and to terminate black employees
is not objectively reasonable, and, therefore, they cannot satisfy
the severe and pervasive requirements that are essential to prove
a hostile work environment claim. We agree. Appellants have not
provided any precedent in support of their argument that the
implementation of an affirmative action plan equates to a hostile
work environment. We also would note that the record reflects no
evidence of severe or pervasive harassment.
Conclusion
To sum up the foregoing discussion, the district court’s grant
of summary judgment on the disparate impact claims is reversed and
remanded. The issue of salary disparity is remanded. The district
court’s grant of summary judgment on non-time-barred claims is
reversed and remanded. The district court’s ruling on timeliness
and the continuing violations doctrine is affirmed. The district
court’s grant of summary judgment on the hostile work environment
claims is affirmed.
This case in short, is AFFIRMED in Part, REVERSED in Part, and
Remanded for proceedings consistent herewith.