Mayberry v. Vought Aircraft Co.

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 28, 1995
• Docket: 94-10825
• Status: Published

Opinion

United States Court of Appeals,

Fifth Circuit.

No. 94-10825.

Robert MAYBERRY, Plaintiff-Appellant,

v.

VOUGHT AIRCRAFT COMPANY, Defendant-Appellee.

June 28, 1995.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Robert Mayberry challenges an adverse summary judgment on his

employment discrimination and retaliation claims. Because the

summary judgment record fails to create a genuine issue of material

fact (restated, would not permit a reasonable juror to find for

Mayberry on either claim), we AFFIRM.

I.

Mayberry, who is black, has been employed as a machine

operator by Vought Aircraft Company since 1979. Vought uses a

progressive discipline program consisting of a verbal warning,

written warning, suspension, and termination. Only disciplinary

actions occurring within the prior year can be considered in

imposing progressive discipline.

Mayberry was disciplined three times in 1991 for poor

workmanship in violation of the Vought Code of Conduct, receiving

a verbal warning in March, two written warnings in June, and a

1 three-day suspension in December.1 He filed union grievances for

each disciplinary action, resulting, inter alia, in the agreement

that, if he had no further problems with his work until December 2,

1992, he would be reimbursed for his 1991 suspension.2 On October

26, 1992, $8,000 in parts were "scrapped" (damaged) at Mayberry's

work station. He blamed the damage on a machine malfunction, but

Vought determined that he was at least partially at fault.

Although Vought could have terminated Mayberry (because his

suspension was less than a year old), it elected instead to suspend

him, in view of his seniority and the fact that it could not

determine the degree to which the machine may have been responsible

for the damage. Mayberry was suspended for 13 days.

Mayberry filed this action in September 1993, claiming that

his suspension was on account of his race, and/or in retaliation

for prior discrimination claims brought against Vought and his

participation in demonstrations against Vought for its alleged

discriminatory practices. On Vought's motion for summary judgment,

the district court held that Mayberry failed to establish a prima

facie case for retaliation, and, assuming a prima facie case of

discrimination, that Mayberry was unable to overcome Vought's

defense that the suspension resulted from its honest belief that

1 Vought's Code of Conduct states, in relevant part: "Defective work resulting from inattention to the job, negligence or carelessness may make it necessary for the company to take corrective action. Deliberate production of defective work may result in discharge". 2 Mayberry also filed discrimination charges with the Equal Employment Opportunity Commission, none of which resulted in a finding of discrimination.

2 Mayberry had violated the work-rule. Accordingly, summary judgment

was entered for Vought.

II.

Mayberry contests the dismissal of both claims. We review

summary judgments de novo, to determine, inter alia, whether any

genuine issue of material fact exists. Calpetco 1981 v. Marshall

Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993). For that

aspect, we draw all reasonable inferences in favor of the

nonmovant, and ask whether the evidence in the summary judgment

record is such that no reasonable juror could find in favor of the

nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

The analysis for Title VII discrimination claims is

well-known. See e.g., St. Mary's Honor Ctr. v. Hicks, --- U.S. ---

-, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff must

establish a prima facie case that the defendant made an employment

decision that was motivated by a protected factor. Once

established, the defendant bears the burden of producing evidence

that its employment decision was based on a legitimate

nondiscriminatory reason. The burden then shifts back to the

plaintiff to prove that the defendant's proffered reasons were a

pretext for discrimination. But, if the defendant has offered a

legitimate nondiscriminatory reason for its action, the presumption

3 of discrimination derived from the plaintiff's prima facie case

"simply drops out of the picture", Hicks, --- U.S. at ----, 113

S.Ct. at 2749, and "the ultimate question [is] discrimination vel

non ". Id. at ----, 113 S.Ct. at 2753 (citation omitted).

A.

In work-rule violation cases, a Title VII plaintiff may

establish a prima facie case by showing "either that he did not

violate the rule or that, if he did, white employees who engaged in

similar acts were not punished similarly". Green v. Armstrong

Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S.

879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980). Mayberry travels both

avenues, claiming that he was not responsible for the damage, and

that, even assuming he was, similarly situated white employees have

not been disciplined.

1.

For showing that white employees were not disciplined,

Mayberry's evidence consists of reports from Vought's Accumulated

Scrappage Material record (ASM), read together with Vought's list

of violations of its Code of Conduct. The ASMs, which record each

instance when a part is scrapped, reveal such instances (for white

and black employees) that have no corresponding entry on Vought's

violations list. Significantly, the ASMs often include notations

such as "poor workmanship" or "operator error", apparently to

assign cause for the scrappage. Based on this evidence, Mayberry

urges that white employees were treated differently from him.

To establish a prima facie case in this manner, Mayberry must

4 show that white employees were treated differently under

circumstances "nearly identical" to his. Little v. Republic Ref.

Co., 924 F.2d 93, 97 (5th Cir.1991); Smith v. Wal-Mart Stores, 891

F.2d 1177, 1180 (5th Cir.1990); Davin v. Delta Air Lines, Inc.,

678 F.2d 567, 570-71 (5th Cir. Unit B 1982). In this regard,

Mayberry has offered evidence that white (and black) employees have

scrapped parts due, apparently, to operator error or poor

workmanship, and were not disciplined. However, as Vought

explained, and as Mayberry's own evidence confirms, it does not

even conduct a disciplinary investigation, much less take

disciplinary action, each time a part is scrapped. The decision to

investigate is based on two factors: the history of poor work

performance of the employee, and the cost of the damaged parts.

Mayberry fit both factors; he had several recent instances of poor

work performance, and the amount of damage was $8,000.

For whether a white employee in "nearly identical"

circumstances has received treatment different from Mayberry,

reference to the ASMs is of little value. Vought notes that they

are not intended, and are not used, for disciplinary purposes.

Rather, they serve only to maintain a record of each part that is

scrapped, and to provide authorization for the part's replacement.

Most importantly, they make no reference to the work history of the

employee or the amount of damage. Accordingly, they are not

evidence that white employees in "nearly identical" circumstances

5 have been treated differently.3 To the contrary, Mayberry's own

evidence reveals that, of the 14 other employees in his division

who were disciplined for their workmanship between 1991 and 1994,

none were black—12 were white and two were Hispanic. In sum,

Mayberry's evidence could not support a reasonable juror's finding

that he was treated differently from white employees. As such, he

fails to make a prima facie case on this basis.

2.

On the other hand, a prima facie case may be established by

showing that the plaintiff did not violate the work-rule for which

he was disciplined. Green, 612 F.2d at 968. We agree with the

district court that Mayberry created a fact question on whether he

was responsible for the damage. Although the conclusion from

Vought's investigation was that Mayberry was at least partially at

fault, Vought admitted that "it could have been possible to have

had a software problem". Furthermore, Mayberry offered evidence

that his machine had malfunctioned in the past. This, combined

with Mayberry's affidavit statement that he was not at fault,

creates a reasonable question of whether Mayberry violated the

work-rule.

Vought responds to Mayberry's prima facie case by insisting

that there was no racial motivation in its decision to suspend

3 The ASMs may well have been a starting point from which to build a case that would withstand summary judgment. Mayberry could have gained information, through discovery, on the individuals listed in the ASMs, which may well have substantiated his claim of disparate treatment. Without more, however, the ASMs are not helpful.

6 Mayberry; that the decision was based solely on its conclusion,

following an investigation, that Mayberry was at least partially at

fault. With this, Vought has discharged its burden of production,4

and the burden shifted to Mayberry to prove that Vought's proffered

reason is merely a pretext for discrimination. Hicks, --- U.S. at

----, 113 S.Ct. at 2749.

Mayberry attempts to overcome Vought's nondiscriminatory

reason essentially by reasserting his prima facie evidence. As

discussed below, we conclude that, as a matter of law, Mayberry has

failed to rebut that nondiscriminatory reason.

The material fact issue on whether Mayberry was at fault

exists only because Vought admitted that, although it found no

evidence of machine error, it could not be certain that some sort

of machine malfunction did not occur.5 Nonetheless, in Vought's

judgment it was clear enough that Mayberry was partially at fault.

And, because it was not certain that Mayberry was completely at

fault, Vought elected only to suspend him, whereas it could have

terminated him. Even so, Vought's uncertainty, together with

Mayberry's adamant denial, allows for a reasonable question of

4 Mayberry appears to suggest that he need not rebut Vought's nondiscriminatory reason because a fact issue exists on whether he violated the work-rule. Vought's burden, however, is only one of production. Hicks, --- U.S. at ----, 113 S.Ct. at 2749. It "need not persuade the court that it was actually motivated by the proffered reasons". Id. (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). 5 The data read-out on the machine, which would apparently have indicated if there had been machine error, "had been cleared". Mayberry denied having cleared the machine, and insisted that it lost power and cleared itself.

7 fact. Mayberry seizes on this fact question as the basis for his

contention that Vought's nondiscriminatory reason for the

suspension is not credible.6 Mayberry misses the mark. The

question is not whether an employer made an erroneous decision; it

is whether the decision was made with discriminatory motive.

[E]ven an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an employee's competence. Motive is the issue.... [A] dispute in the evidence concerning ... job performance does not provide a sufficient basis for a reasonable factfinder to infer that [the] proffered justification is unworthy of credence.

Little, 924 F.2d at 97. See also Sherrod v. Sears Roebuck & Co.,

785 F.2d 1312 (5th Cir.1986); Turner v. Texas Instruments, Inc.,

555 F.2d 1251, 1256 (5th Cir.1977); Jones v. Gerwens, 874 F.2d

1534, 1540 (11th Cir.1989).

Attempting to offer more than the mere dispute over whether

Vought properly found him at fault, Mayberry resorts to the

evidence we rejected in the context of his prima facie case: that

white employees are treated differently. Needless to say,

Mayberry's evidence of disparate treatment is no more helpful or

persuasive in the context of rebutting Vought's nondiscriminatory

explanation. As noted, Mayberry has not offered evidence

6 In their briefs, the parties argued at length over whether a plaintiff may rebut a defendant's nondiscriminatory reason by showing only that the reason is not credible, without offering proof, in addition to the prima facie case, of discriminatory motive. Our en banc court may soon consider this issue. See Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir.1994), reh'g en banc granted, 49 F.3d 127 (5th Cir.1995). Because we conclude that no reasonable juror could find that Vought's nondiscriminatory reason was not credible, we do not reach this issue.

8 sufficient to support a finding that white employees in

circumstances "nearly identical" to his have been treated

differently. See Little, 924 F.2d at 96-97 (rejecting rebuttal

evidence of disparate treatment because circumstances were not

"nearly identical").

Finally, Mayberry appears to suggest that Vought's

nondiscriminatory explanation is suspect because, according to

Mayberry, Vought has a propensity for discrimination because of a

finding by the Department of Labor that Vought had occasionally

discriminated on the basis of race in its promotion decisions.7 We

will not entertain such a suggestion. According to his affidavit,

Mayberry has brought, or been a party to, at least six prior

charges of discrimination against Vought, none of which have

resulted in a finding of discrimination against Mayberry. Just as

we cannot assume that Mayberry's past conduct suggests a propensity

to file false charges, we cannot assume that Vought's past conduct

suggests it has discriminated against Mayberry.8

In sum, based on the summary judgment record, a reasonable

juror could not conclude that Mayberry received the 13-day

suspension because of his race. Therefore, summary judgment on

7 Mayberry also asserts that his workmanship violations began to issue only after he joined in a class action discrimination complaint against Vought, and after his participation in picketing against it. 8 We note that the Department of Labor found only individual instances of discrimination in promotion decisions, and "[t]hese instances did not occur in any pattern or practice that would suggest Blacks, as a class, were treated differently because of their race".

9 this claim was proper.

B.

A prima facie case of retaliation exists if the plaintiff

establishes that (1) he participated in statutorily protected

activity, (2) he received an adverse employment action, and (3) a

causal connection exists between the protected activity and the

adverse action. Armstrong v. City of Dallas, 997 F.2d 62, 65 n. 3

(5th Cir.1993). The parties agree that Mayberry meets the first

two elements. Vought contends, however, and the district court

agreed, that Mayberry failed to create a material fact issue on the

existence of a causal connection between his protected activity and

his suspension.

Mayberry asserts that the timing of the suspension in

relation to his protected activity establishes the required nexus.9

The timing of the adverse employment action can be a significant,

although not necessarily determinative, factor. See e.g., Shirley

v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992) (discussing

evaluation of "timing" evidence). In this case, however, it is

unclear that the timing of the suspension benefits Mayberry's case.

According to his affidavit, Mayberry first engaged in

protected activity (filed an EEOC charge) sometime "in the mid

1980's", and continued, with regularity, in protected activity

9 Mayberry also rests a prima facie case on the basis of the evidence offered for his discrimination claim. To the extent that such evidence may be relevant to a prima facie case for retaliation, we find it insufficient, as discussed in part II.A., supra.

10 through 1992.10 In this regard, there is nothing inherently

"suspicious" about a 13-day suspension that occurs at least several

years after protected activity begins. Indeed, one might argue

that the "timing" here is evidence against retaliation. We need

not go that far. Suffice it to say that we find insufficient

evidence to support a finding that "but for" Mayberry's protected

activity, he would not have received the 13-day suspension. See

Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984)

(noting that prima facie retaliation requires "but for" causation).

Furthermore, assuming arguendo that Mayberry established a

prima facie case, he fails, for summary judgment purposes, to

overcome Vought's legitimate nondiscriminatory reason for the

suspension—its belief that Mayberry violated the work-rule. The

analysis in part II.A, supra, applies here.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

10 It is unclear when Mayberry filed his first EEOC complaint. Mayberry states in his affidavit that he had filed EEOC complaints "in the mid 1980's". Mayberry filed an EEOC charge in connection with his delayed promotion to Class B machine operator. He again filed an EEOC charge in connection with his delayed promotion to Class A machine operator. The class A promotion occurred in 1988; therefore, his first EEOC complaint (if it was for his class B promotion) must have occurred prior to 1988. Mayberry also engaged in protected activity (discrimination charges and/or picketing against Vought) in 1988, 1990, 1991, and 1992.