Friend v. Interior Systems Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 30, 2003
• Docket: 02-10741
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D In the May 30, 2003

United States Court of Appeals Charles R. Fulbruge III Clerk for the Fifth Circuit _______________

m 02-10741 Summary Calendar _______________

WILLIAM FRIEND; MICHELLE HUCKABY; ETHEL CARTER; GLORIACOLAS; CHERRY POPE; PAUL SAMPLES; DIAN ROLAND; DEBORAH BEASLEY; LARRY KING; MELODY KING; COREY HUCKABY; AND JANE JONES,

Plaintiffs-Appellants,

VERSUS

INTERIOR SYSTEMS, INC., ALSO KNOWN AS ISI PROFESSIONAL SERVICES, INC., AND CUSHMAN & WAKEFIELD NATIONAL CORPORATION,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Northern District of Texas m 3:00-CV-2170-P _________________________ Before HIGGINBOTHAM, SMITH, and Alpha Road Facility employees were CLEMENT, Circuit Judges. responsible for reporting to the USPS, submitting postage reports based on the JERRY E. SMITH, Circuit Judge:* postage required for the bulk mail sorted at the facility. From the reports, the USPS Plaintiffs William Friend, Michelle Hucka- determined the amounts due from various by, Ethel Carter, Gloria Colas, Cherry Pope, clients and withdrew payment from the trust Paul Samples, Dian Roland, Deborah Beasley, funds. Larry King, Melody King, Corey Huckaby, and Jane Jones, who are black former employ- In November 1999, ISI learned that the ees of defendants Interior Systems, Inc. USPS was conducting a criminal investigation (“ISI”), and Cushman & Wakefield, Inc. into the operation of the Alpha Road Facility. (“Cushman”), appeal a summary judgment on Morton Taubman, ISI’s general counsel, was their claims of discrimination under 42 U.S.C. informed by USPS investigators that Roger § 1981. Finding no error, we affirm. Ebert, the general manager of the facility, was the target of the investigation, which I. concerned an alleged payroll fraud scheme and Plaintiffs were employed at different times, the possible embezzlement of funds from client and in various capacities, by Cushman and ISI trust accounts. at a mail sorting facility on Alpha Road in Dal- las, Texas (“Alpha Road Facility”).2 The Ebert, a white male, was suspended from Alpha Road Facility provided customers with his position as general manager while ISI con- various mail sorting services. In particular, be- ducted its own internal investigation. That in- cause the United States Postal Service vestigation uncovered evidence of additional (“USPS”) offers a discount in postal rates to employee wrongdoing. Specifically, Taubman customers who sort their own bulk mail, cli- concluded that Friend, Michelle Huckaby, and ents had their mail sorted at the facility before Martha Litton, an ISI employee not party to sending it to the USPS. To cover the costs of this suit, were either involved with Ebert’s postage, clients were required to deposit mon- scheme, or responsible for severe ey into a trust fund controlled by the USPS. mismanagement of the second shift. Based on these conclusions, ISI terminated Ebert, Litton, Friend, and Huckaby. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- The remaining plaintiffs were terminated or lished and is not precedent except under the limited quit for various reasons not directly related to circumstances set forth in 5TH CIR. R. 47.5.4. the Ebert affair. Five were either laid off or 2 fired in April and May 2000. Another, Jones, From October 1997 to July 1999 they were employed by Cushman. At that time, ISI assumed quit voluntarily but claims she was control of the Alpha Road Facility, and all workers constructively discharged. at the facility became ISI employees. Cushman eventually resumed responsibility for the operation II. of the Alpha Road Facility in October 2000, and On appeal, plaintiffs challenge the summary Jones, the sole plaintiff still working at the facility judgment on their claims of employment at that time, became a Cushman employee again.

2 discrimination.3 We review a summary Plaintiffs contend that defendants engaged judgment de novo, applying the same legal in employment discrimination in violation of standards as did the district court and viewing § 1981(a), which provides that “[a]ll persons all factual questions and inferences in the light within the jurisdiction of the United States most favorable to the nonmoving party. White shall have the same right . . . to make and v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. enforce contracts . . . as is enjoyed by white 2003). Summary judgment is appropriate if, in citizens.” The right to “make and enforce con- light of all the evidence, there is “no genuine tracts,” in turn, includes the right to issue of material fact, and the moving party is nondiscriminatory enjoyment of all benefits, entitled to judgment as a matter of law.” FED. privileges, terms, and conditions of the R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 contractual relationship. § 1981(b). U.S. 317, 322 (1986). III. Mere assertions of a factual dispute, Plaintiffs contend that defendants engaged unsupported by probative evidence, will not in racial discrimination in terminating their prevent summary judgment.4 Rather, to employment. Claims of racial discrimination demonstrate the existence of a genuine issue of under § 1981 are go verned by the same fact, the nonmovant must provide specific evidentiary framework applicable to claims of facts such that a reasonable jury might return employment discrimination brought under title a verdict in his favor. See Anderson, 477 U.S. VII. See Raggs v. Miss. Power & Light Co., at 248. Consequently, “conclusory allegations, 278 F.3d 463, 468 (5th Cir. 2002) (collecting speculation, and unsubstantiated assertions” cases). Therefore, to determine whether de- will not suffice to defeat a motion for summary fendants are entitled to summary judgment, we judgment. Douglass v. United Servs. Auto. must apply the McDonnell Douglas burden Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en shifting analysis. Id. banc). Even assuming arguendo that plaintiffs met their burden of establishing a prima facie case, 3 Several claims of discrimination pursued in ISI advanced mult iple legitimate, the district court were not presented in plaintiffs’ nondiscriminatory justifications for its decision brief. Needless to say, we consider only those to terminate their employment. Accordingly, claims raised and adequately briefed. See Melton the burden fell to plaintiffs to demonstrate that v. Teachers Ins. & Annuity Ass’n, 114 F.3d 557, these proffered justifications were merely pre- 561 (5th Cir. 1997) (“[I]ssues not raised or argued texts for unlawful discrimination. Id. None of in the brief are considered waived and thus will not the plaintiffs has demonstrated the existence of be noticed or entertained by this Court on ap- a genuine issue of material fact with respect to peal.”). Plaintiffs likewise failed to challenge the pretext. denial of their FLSA claims and entirely omitted any discussion of the entry of judgment against A. Beasley, Huckaby, Larry King, and Melody King. We therefore deem these claims abandoned as well. ISI contends that plaintiffs Friend and Huckaby were terminated for possible criminal 4 Anderson v. Liberty Lobby, Inc., 477 U.S. conduct in connecti on with Ebert’s 242, 248-50 (1986); Abbott v. Equity Group, Inc., embezzlement and payroll fraud and for gross 2 F.3d 613, 619 (5th Cir. 1993).

3 mismanagement of the night shift. Either of scheme. Further, plaintiffs admitted they had these grounds constitutes a legitimate received cash payments from Ebert. These nondiscriminatory basis for plaintiffs’ facts provided a reasonable basis for ISI’s termination. belief that Friend and Huckaby engaged in criminal wrongdoing.5 Friend and Huckaby contend that defen- dantISI’s proffered justification for their termi- In any event, ISI also concluded that, even nation, their possible involvement in Ebert’s absent criminal malfeasance, the night shift had criminal conduct, is pretextual, because Ebert been grossly mismanaged. In addition to did not implicate them in statements made reported violations of company policy, the during the ISI investigation and the subsequent night shift was considerably less efficient than criminal case. Plaintiffs contend that Ebert’s the day shift, sorting less mail despite conflicting statements give rise to a genuine recording substantially more overtime than the issue of fact with respect to whether they day shift and frequently calling in additional participated in the scheme. temporary help. Friend and Huckaby present no argument that this justification for their This argument misses the point, however. termination was pretextual. Having shown The question is not whether Friend and Huck- adequate nondiscriminatory reasons for the aby participated in Ebert’s criminal conduct; decision to terminate Friend and Huckaby, rather, t he question is whether ISI had a defendants were entitled to summary judgment reasonable basis for believing they were involved. Even if ISI’s belief that they engaged in criminal misconduct was ultimately incorrect, it may serve as a legitimate, non- discriminatory reason for their termination “so long as the belief [was] reasonable, not 5 Friend and Huckaby contend that the ISI in- arbitrary, and not a likely pretext for unlawful vestigation was one-sided and discriminatory. In discrimination.” Bauer v. Albermarle Corp., particular, they assert that ISI’s failure to investi- 169 F.3d 962, 967 (5th Cir. 1999). gate allegations that ISI Vice President William Marcellino also participated in Ebert’s schemes In the course of conducting an internal in- demonstrates that the investigation served merely to vestigation, ISI uncovered several indications conceal the discriminatory motive underlying their that plaintiffs had participated in Ebert’s post- termination. Plaintiffs provide no evidence that age fraud and payroll fraud schemes. As night any allegations concerning Marcellino were shift managers, Friend and Huckaby were re- credible or supported by evidence such as that sponsible for completing and depositing postal which implicated them. forms for pick-up by the USPS. Indeed, there Further, the investigation which culminated in is evidence that a high proportion of the forms plaintiffs termination resulted also in the termin- wrongfully withheld from the USPS were ation of two white employees, Ebert and Litton. prepared either by Friend or Huckaby. They Plaintiffs’ conclusional assertions of discrimination were likewise responsible for verifying the ac- in the conduct of the investigation are not suf- curacy of employee time cards and time sheets ficient, in the absence of supporting evidence, to and thus implicated in the payroll fraud defeat summary judgment. See Douglass, 79 F.3d at 1429.

4 on their claims.6 was pretextual.

B. D. Carter contends that her termination by ISI Colas, Roland, and Pope contend their lay- was racially discriminatory. ISI, however, pre- offs were the result of racial discrimination. sented internal memoranda establishing that Even assuming plaintiffs have made a prima Carter was terminated for well-documented, facie showing of discrimination, ISI contends nondiscriminatory reasons, including poor job that it decided to lay off the entire second shift knowledge, poor leadership, poor de- because of the inefficiency of the night shift cisionmaking, unprofessional and disruptive and a drop in business after the allegations behavior toward other employees, refusal to concerning Ebert’s mail fraud scheme became work mandatory overtime, and unexcused ab- public. None of the laid off plaintiffs senteeism. Although Carter testified that these presented evidence that this nondiscriminatory documents contained “a bunch of lies,” her justification for the termination was a pretext testimony alone does not constitute sufficient for racial discrimination.7 evidence of pretext to defeat summary judgment. IV. Friend, Huckaby, Colas, and Pope argue C. that they were fired in retaliation for their par- Samples likewise alleges that his ticipation in a company meeting held by ISI termination was motivated by racial President Earl Jenkins to address the Alpha discrimination. In response, ISI provided Road employees’ complaints of racial documentary evidence showing that Samples discrimination. Claims for retaliatory was put on probation for leaving work without discharge under § 1981 are governed by the permission and that he failed to appear for same rules as are retaliation claims brought work t he very next day. ISI then sent a under title VII. Foley v. Univ. of Houston termination letter to Samples explaining that Sys., 324 F.3d 310, 316 n.7 (5th Cir. 2003). he was terminated for poor work performance Therefore, to assert a prima facie claim for and nonattendance. Samples failed to retaliation under § 1981, a plaintiff must introduce any evidence that this legitimate, establish (1) that he engaged in conduct nondiscriminatory justification for his firing protected by the statute; (2) that his employer

6 7 Friend and Huckaby contend that summary The laid off plaintiffs’ principal evidence of judgment is inappropriate in light of Reeves v. discriminatory intent is Colas’ unsubstantiated al- Sanderson, 530 U.S. 133, 147-49 (2000), in which legation that Carlos Galvan, an Hispanic super- the Court held that a showing of pretext, once visor, remarked that they were going to fire all of made, may be powerful circumstantial evidence of the black employees if given a chance. Even if intentional discrimination. That holding is inap- admissible, this testimony is not direct evidence plicable here, because, as discussed above, Friend that the layoffs in question were discriminatory. and Huckaby have failed to demonstrate pretext. Nor, taking the record as a whole, does this state- Although the Court in Reeves also held that the ment serve as evidence that the proffered justi- lower court had improperly disregarded certain ev- fications for the layoffs were pretextual, especially idence favorable to the plaintiff, id. at 152-53, in light of the fact that Hispanic employees were plaintiffs have introduced no comparable evidence. laid off as well.

5 took an adverse employment action; and (3) duct of an investigation into the that the protected conduct and the adverse mismanagement and fraud occurring on the employment action were causally linked. Long night shift. The closeness in timing is v. Eastfield College, 88 F.3d 300, 304 (5th therefore explained by the fact that the meeting Cir. 1996). and the terminations arose from the same events and circumstances. Even assuming plaintiffs can make a prima facie showing of retaliation, however, V. defendants have pro ffered legitimate, Several plaintiffs also claim they were sub- nondiscriminatory reasons for their jected to racial harassment while employed at termination. Therefore, “the focus shifts to the the Alpha Road Facility. To establish an ac- ultimate question of whether the defendant[s] tionable claim of racial harassment under unlawfully retaliated against the plaintiff.” Id. § 1981, plaintiffs must demonstrate that at 305. Neither Colas nor Pope has offered (1) they belong to a protected class; (2) they anything more than her own speculation as were subjected to unwelcome harassment; evidence of a connection between their (3) t he harassment was based on race; and attendance at the meeting and their (4) the harassment affected a term, condition, subsequent terminations over a month later. or privilege of employment. Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002). To affect The retaliation claims of Friend and Hucka- a term, condition, or privilege of employment by require additional analysis, however, be- harassment must be so severe or pervasive that cause “this circuit has held that where there is it creates an abusive work environment. See a close timing between an employee’s id. at 485. protected activity and an adverse employment action, the employer must offer ‘a legitimate Plaintiffs allege that Hispanic co-workers non-discriminatory reason that explains both made comments to the effect that Hispanics the adverse action and the timing.’” Shackel- were superior and that the black employees ford v. Deloitte & Touche, LLP, 190 F.3d 398, should learn to speak Spanish. Such 408 (5th Cir. 1999) (quoting Swanson v. Gen. statements, while obnoxious and offensive, do Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. not amount to discriminatory conduct so 1997)). In the case of Friend and Huckaby, severe or pervasive that it created an abusive the timing is extremely closeSSthey were work environment. It is not enough that terminated on the very day of the meeting. plaintiffs found the comments offensive. See Shepherd v. Comptroller of Accounts, 168 As discussed above, however, defendants F.3d 871, 874 (5th Cir. 1999). Teasing and have asserted legitimate, nondiscriminatory offhand comments do not by themselves create justifications for terminating Friend and Huck- an abusive work environment. See id. aby. Further, the closeness in timing of the meeting and the terminations does not give rise Jones, however, alleges additional harassing in this case to any inference of retaliatory conduct that she contends demonstrate a intent. The meeting was called to address the racially hostile environment. She alleges that Alpha Road employees complaints of racial the Hispanic employees were cold and discrimination, complaints related to the con- unfriendly to her and that she felt like an

6 outsider. Further, on three separate occasions, other employees were motivated by race. Jones was involved in disputes with Hispanic Consequently, Jones has failed to state a claim coworkers. Jones claims that on one occasion for racial harassment under § 1981.9 a Hispanic employee intentionally hit her with a mail cart and that on another occasion VI. another employee hit her head with his elbow, Plaintiffs Roland and Carter contend that prompting her to push him in response. the terms of their employment were Finally, Jones alleges that after she accidentally discriminatory. Roland asserts that she was hit another employee several times, that discriminated against with respect to her work employee, Maria Macias, responded by load and pay by virtue of the fact that she intentionally striking her in the leg. worked on the mostly black second shift.10 She introduces no evidence to support this After the last confrontation, her supervisor claim. Similarly, Carter claims that the told her to take a few days off while they in- employees on the day shift were treated better vestigated the incident. A human resources than employees on the night shift. Specifically, manager interviewed witnesses but was unable Carter contends that employees on the day to resolve the conflicting accounts. shift received shirts, smocks, beepers, and big Consequently, neither Jones nor the other screen TV’s. There is no evidence supporting employee was cited for the incident, and Jones her contention that the day shift actually was directed to report for work. When Jones received such items, much less that these items returned to the Alpha Road facility to collect were distributed on a racially discriminatory some paperwork, she encountered Macias, and basis. the two women began yelling at each other. Jones departed shortly thereafter and did not Additionally, several plaintiffs claim that ISI subsequently come back to work. After Jones racially discriminated against them by refusing failed to report for five days, Cushman to grant their requests for transfers to the first terminated her employment.

Even accepted as true, this sequence of 9 Having failed to allege the existence of harass- events does not constitute actionable racial ha- ment sufficient to constitute a hostile work rassment. First, the Hispanic employees’ con- environment, Jones cannot succeed on her claim duct in excluding her from conversation can- that she was constructively discharged. Discrim- not be characterized as having created an abu- ination alone, without aggravating factors, is not sive work environment.8 Nor do three sufficient for a claim of constructive discharge. separate disputes with other individual Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 employees, constitute severe or pervasive (5th Cir. 2001). Indeed, constructive discharge harassment. In any event, Jones fails to requires a greater degree of harassment than that required by a hostile environment claim. Id.; provide evidence that any of her disputes with Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998). 8 10 See Faragher v. City of Boca Raton, 524 U.S. Roland also complains that she was denied a 775, 788 (1998) (“We have made it clear that promotion because she spent time training other conduct must be extreme to amount to a change in employees, but makes no attempt to explain how the terms and conditions of employment . . . .”). this denial was racially discriminatory.

7 shift. These claims provide no basis for a claim of racial discrimination under § 1981, however, because failure to transfer does not rise to the level of an adverse employment action. Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999).11

AFFIRMED.

11 Because we affirm the summary judgment for Cushman and ISI on all claims, we need not address plaintiffs’ contention that the district court erred in failing to hold them jointly and severally liable.