Revised January 22, 2002
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 00-60874
HERMAN RAGGS,
Plaintiff-Appellant,
VERSUS
MISSISSIPPI POWER & LIGHT COMPANY,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Mississippi
January 3, 2002 Before JONES and DeMOSS, Circuit Judges, and FELDMAN, District Judge.1
DeMOSS, Circuit Judge:
Plaintiff-Appellant, Herman Raggs (Raggs), filed suit against
Defendant-Appellee, Mississippi Power & Light Company (MP&L),
alleging race discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, which
arose from his 1996 layoff by MP&L and its subsequent failure to
1 District Judge for the Eastern District of Louisiana, sitting by designation. rehire him in 1999. The magistrate judge presiding over the trial
granted MP&L's Motion for Judgment as a Matter of Law pursuant to
Rule 50 of the Federal Rules of Civil Procedure, and dismissed the
case with prejudice. We AFFIRM.
I. BACKGROUND
Raggs started working for MP&L in 1979 as a groundsman in the
Greenville Service Department. Groundmen assist linemen working on
electric utility poles by sending equipment up to them. Raggs was
promoted in 1983 to lineman, and again in 1987 to troubleman.
Linemen work fixed hours as part of a crew. Troublemen work alone
and are called in at any hour to assess utility problems. Notably,
in 1987, when Raggs became a troubleman, he was the first African-
American to be hired in the Greenville Service Department.
In 1989, Raggs filed a race discrimination claim with the
Equal Employment Opportunity Commission (EEOC). The claim was
eventually dismissed. In 1990, Jimmy McDaniel (McDaniel) became
the area supervisor over Raggs' department. McDaniel gave Raggs a
favorable performance evaluation for the 1990 to 1991 time period,
rating him fully adequate, above average, or superior for all
categories.
In 1993, however, MP&L suspended and then terminated Raggs for
allegedly installing an MP&L security light at his residence and
for stealing electricity. Raggs contested his termination through
2 his union. At the arbitration hearing, the arbitrator found that
MP&L did not demonstrate that Raggs was fired for just cause
because it had not produced sufficient evidence that he had
installed the light. Raggs, therefore, was reinstated in February
1994.
During the ten-month period Raggs was not working as a result
of his termination, his position as troubleman was filled by an
African-American lineman. When Raggs returned to work, he was
assigned to work the northern territory. As a result, Raggs was
required to travel greater distances than his co-workers to make
service calls, which made it difficult for him to make the same
quantity of service calls as his co-workers.
In 1996, MP&L decided to reduce its number of journeyman
employees in response to increased competition and deregulation.
Included in this category of employees were groundmen, linemen, and
troublemen. MP&L developed a formula based on seniority and
performance for determining who to layoff. This system, known as
the “Employee Profile Process” (EPP), complied with the existing
union contract and involved multiple evaluations and reviews.
Under the EPP, supervisors evaluated employees on a 1-to-5 scale
for (1) present job performance, (2) job-related personal
characteristics, (3) special skills, (4) potential, and (5) other
job-related factors. McDaniel evaluated Raggs as below average or
unsatisfactory in all categories except for special skills, where
he marked Raggs as average. Based on company records, written
3 customer complaints, and intra-company complaints, McDaniel claimed
that Raggs (1) completed fewer assignments than other employees,
(2) performed his work poorly, and (3) had a high rate of
absenteeism. Raggs' EPP score was the lowest of the five employees
in the service department and of the 14 employees evaluated by
McDaniel. Of the employees McDaniel evaluated, the top scorer was
African-American, followed by four white employees, then three
African-American employees, then five more white employees, and
Raggs.
Overall, MP&L laid off 17 African-Americans and 49 whites in
1996. Raggs was the only employee laid off from the service
department. MP&L offered Raggs several compensation options.
Raggs chose to take two weeks severance pay, which allowed him to
file a grievance regarding the layoff and left him subject to being
recalled.
In September 1996, Raggs filed a second EEOC complaint
claiming that he was laid off because of race discrimination and
retaliation for his 1989 EEOC complaint. The EEOC issued a no-
cause determination and dismissed Raggs' claim in September 1997,
but issued him a right to sue letter. Raggs never filed a lawsuit.
Raggs did, however, file a grievance with his union protesting his
layoff. A grievance arbitration hearing was held in which the
arbitrator upheld the layoff decision. The arbitrator noted that
Raggs' relative lack of competence as evidenced by documented
incident reports, customer complaints, and his low number of work
4 orders, outweighed any seniority he might have had over competent
but junior employees. Raggs did not testify at the hearing to
refute or explain the evidence of his relative lack of competence.
In June 1998, Raggs filed a third EEOC complaint, re-alleging
the same claims he had made in his second EEOC complaint as well as
asserting that McDaniel's testimony at the 1997 arbitration hearing
indicated that his low EPP rating was a pretext for his layoff,
which was actually motivated by race discrimination and retaliation
for his 1989 EEOC claim. The EEOC issued Raggs a right to sue
letter in July 1998. Raggs sued MP&L in October 1998, alleging
race discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
MP&L was required by its collective bargaining agreement to
notify laid-off employees of positions available with the company.
A union representative informed MP&L that it had violated this
requirement by failing to send notices to Raggs and one other
employee. Thereafter, MP&L sent Raggs five letters in 1997 and
1998 notifying him of open positions with the company. Raggs did
not respond to three of the letters, and the other two were
returned as not received.
In 1999, Raggs responded to a letter from MP&L, and indicated
that he was interested in a lineman position in Greenville. MP&L,
however, replied in a letter that it considered Raggs “not
qualified” for the position. Michael Vaughn (Vaughn), who
participated in the decision not to rehire Raggs, stated that MP&L
5 based this decision entirely on a review of the previous
arbitrator's report, which included Raggs' EPP evaluation, his
incident report file, and all the complaints lodged against him.
Notably, Vaughn did not know Raggs. And McDaniel, who retired in
November 1997, had no part in the decision not to rehire Raggs.
Nevertheless, Raggs filed a fourth EEOC complaint alleging that
MP&L's decision not to rehire him was motivated by race
discrimination and retaliation. The EEOC issued Raggs a right to
sue notice and, in October 1999, he amended his lawsuit to
incorporate the allegations from his fourth EEOC complaint.
A jury trial was held before a magistrate judge on October 30
and 31, 2000. After the close of Raggs' evidence, MP&L moved for
judgment as a matter of law under Rule 50 of the Federal Rules of
Civil Procedure. The judge denied the motion but carried it with
the case, stating that Raggs “may have established a prima facie
case” as to MP&L's failure to rehire him in 1999. However, the
judge noted that he wanted to develop the record before ruling on
the motion.
At the close of all the evidence, MP&L renewed its motion for
judgment as a matter of law. The magistrate judge granted the
motion, stating that no rational jury could conclude that racial
discrimination played a role in Raggs' termination and failure to
be rehired. In explaining his decision, which was announced orally
from the bench, the magistrate judge discussed only Raggs' claims
6 of race discrimination. The magistrate judge, however, made no
mention of Raggs' claims of retaliation. Raggs now appeals that
decision.
II. STANDARD OF REVIEW
This Court reviews de novo a grant of a Motion for Judgment as
a Matter of Law pursuant to Rule 50 of the Federal Rules of Civil
Procedure. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222
(5th Cir. 2000). Judgment as a matter of law is proper where there
is no legally sufficient evidentiary basis for a reasonable jury to
find for the non-moving party. This Court must draw all reasonable
inferences in favor of the non-moving party, but may not assess the
credibility of witnesses or weigh the evidence. Lytle v. Household
Mfg., Inc., 494 U.S. 545, 554-55 (1990). More specifically, this
Court should give credence to the evidence favoring the non-moving
party and any uncontradicted or unimpeached evidence supporting the
moving party where such evidence comes from disinterested
witnesses. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 151 (2000).
III. DISCUSSION
The issue before this Court is whether the magistrate judge
erred in granting judgment as a matter of law in favor of MP&L with
respect to Raggs' claims of racial discrimination and retaliation
7 under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
§ 1981. We agree with the magistrate judge in this case. Based on
the evidence presented at trial, there is no legally sufficient
evidentiary basis for a reasonable jury to find in favor of Raggs.
A. The Burden-Shifting Framework for Discrimination Cases.
This Court considers claims of intentional discrimination,
which include racial discrimination and retaliation claims based on
Title VII and 42 U.S.C. § 1981, under the same rubric of analysis.
See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 422
n.1 (5th Cir. 2000); Harrington v. Harris, 118 F.3d 359, 367 (5th
Cir. 1997); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2
(5th Cir. 1996); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047
(5th Cir. 1996); Anderson v. Douglas & Lomason Co., Inc., 26 F.3d
1277, 1284 n.7 (5th Cir. 1994). In Reeves v. Sanderson Plumbing
Products, Inc., the Supreme Court reviewed the burden-shifting
framework that governs these discrimination claims, and the
relationship of that framework to a Rule 50 motion. 530 U.S. 133
(2000). To sustain a claim under this framework, the plaintiff
must first establish a prima facie case of discrimination. Reeves,
530 U.S. at 142. A prima facie case can generally be satisfied if
the plaintiff (1) is a member of a protected class, (2) he was
qualified for the position that he held before being discharged,
(3) he was discharged, and (4) his employer filled the position
8 with a person who is not a member of the protected class. See,
e.g., Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990); see also,
McDonnell Douglas v. Green, 411 U.S. 792, 802 & n.13 (1973).
If the plaintiff establishes a prima facie case of
discrimination, the burden then shifts to the employer to produce
evidence that its actions were justified by a legitimate,
nondiscriminatory reason. Reeves, 530 U.S. at 142. This burden of
production “can involve no credibility assessment.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Finally, the burden
then shifts back to the plaintiff to show by a preponderance of the
evidence that the employer's nondiscriminatory explanation is
pretextual. Reeves, 530 U.S. at 143. Evidence of pretext alone
may, but not always, sustain a fact-finder's determination of
unlawful discrimination. See id. at 148 (holding that “a
plaintiff's prima facie case, combined with sufficient evidence to
find that the employer's asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully
discriminated”). In particular, evidence of pretext is not enough
where the plaintiff has created only a weak issue of fact as to
whether the employer's reason is untrue, and there is “abundant and
uncontroverted independent evidence that no discrimination []
occurred.” Id. Although the evidentiary burdens shift between the
parties in this framework, “[t]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
9 against the plaintiff remains as all times with the plaintiff.”
Id. at 143 (quoting Texas Dep’t. of Cmty. Affairs v. Burdine, 450
U.S. at 248, 353 (1981). Finally, when a full trial on the merits
has been conducted, this Court focuses not on the plaintiff's prima
facie case, but on the ultimate question of whether the record
contains sufficient evidence to support a jury finding of race
discrimination. Id. at 149.
At the close of Raggs' evidence, the magistrate judge
concluded that Raggs, “by the thinnest of margins . . . may have
established a prima facie case” of discrimination. Thus, the
burden shifted to MP&L, which put forth legitimate,
nondiscriminatory explanations for both Raggs' layoff and its
refusal to rehire him. Specifically, MP&L produced evidence that
Raggs was laid off in 1996 as part of a labor reduction due to
outside market pressures on the company. Furthermore, MP&L stated
that it refused to rehire Raggs for the lineman position in 1999
because of his poor performance rating, customer complaints, and
intra-company complaints.
After both parties presented their case, the magistrate judge
concluded that the only evidence in support of Raggs' claims was
that he suffered two adverse employment decisions, and that he is
African-American. In fact, the judge further noted that the
evidence, taken as a whole, rebutted Raggs' claim that his layoff
and the failure to rehire were racially based. Because MP&L was
10 able to provide evidence to rebut any possible prima facie case
that may have been established, we must consider whether Raggs
produced sufficient evidence for a reasonable jury to conclude that
MP&L's nondiscriminatory explanations are false and, if so, whether
a reasonable jury could further conclude that MP&L's actions were
based on racial discrimination. We believe the evidence discussed
below supports the magistrate judge's conclusion that a reasonable
jury could not conclude that MP&L's justifications for its actions
are pretext.
B. The 1996 Layoff.
The record indicates that Raggs does not challenge MP&L's
claim that the EPP was a nondiscriminatory review process based on
both employee performance and seniority. Although Raggs claims
that he had greater seniority than several white employees who were
retained by MP&L, he admitted at trial that all of the white
employees retained by the Greenville Service Department had greater
seniority than he did. Raggs, however, does argue that the EPP
methodology is vulnerable to the racial animus of individual
supervisors. Raggs' primary contention is that McDaniel, based on
racially discriminatory motives, gave him an extraordinarily low
and undeserved performance score that resulted in his layoff.
MP&L, however, asserts that McDaniel's rating was based on the
substandard quality and quantity of Raggs' work.
11 In order to show that MP&L's justifications for his layoff
were a pretext, Raggs claimed that he was supplied inferior
equipment. For example, Raggs contends that he received radio
equipment inferior to that of his white co-workers, and that his
equipment put him at a disadvantage in performing his job.
Specifically, Raggs testified that white employees were given a
“backpack radio” that they could carry around in their trucks or
pockets so they could hear the communications between the
dispatcher and other employees. Raggs argues that he was
disadvantaged by the fact that when he was away from his truck
performing work on behalf of the company, he was not able to hear
a call and respond as other employees were able to do. There is no
doubt that this fact would bear directly on the integrity of Raggs'
EPP score. Furthermore, Raggs argues that he was not given an air
conditioned truck as was a white employee who had less time in the
service department. However, Raggs presents no evidence to
contradict McDaniel's testimony that trucks were assigned according
to area and were replaced as they wore out.
In addition, Raggs and a white co-worker, Jimmy Peets,
testified that McDaniel and other managers scrutinized and
reprimanded Raggs more severely than white employees. Their
testimony indicates that this treatment primarily occurred after
Raggs' 1994 reinstatement. Raggs gave no specific instances of
such treatment, but he was specific about the types of unfavorable
treatment, which included reprimands, prohibition from taking
12 breaks, and using work hours for a promotional campaign.
Raggs contends that several prior positive evaluations
conducted by McDaniel indicate that his low EPP score was a pretext
for laying him off. Nonetheless, Raggs does not dispute the
substance of the various complaints lodged against him, which were
factored into his EPP score. Thus, Raggs' EPP score does not
necessarily indicate a pretext. See, e.g., Crawford v. Formosa
Plastics Corp., 234 F.3d 899, 904 (5th Cir. 2000) (noting that
“where there is no direct evidence of discrimination, the plaintiff
needs to present sufficient evidence that [the defendant's]
proffered reason is false”).
Furthermore, Raggs argues that McDaniel's testimony at the
1996 arbitration hearing that Raggs' low EPP score was based
partially on complaints indicates a pretext because some of the
complaints in his personnel file were added after the EPP review.
Raggs, however, does not dispute that his personnel file at the
time of the EPP evaluation included customer and intra-company
complaints. The complaints added after the EPP review did not have
a negative effect on his score.
Raggs also presents evidence that, at some point in time, an
unknown MP&L manager referred to Raggs as a “black so-and-so.”
There was no evidence that the comment was made by McDaniel or
anyone else who had anything to do with Raggs' EPP evaluation and
subsequent layoff. This Court has held that such unattributed
13 “stray remarks” are insufficient to support an inference of
discrimination. See, e.g., E.E.O.C. v. Texas Instruments, Inc.,
100 F.3d 1173, 1180 (5th Cir. 1996); Waggoner v. City of Garland,
987 F.2d 1160, 1166 (5th Cir. 1993).
Lastly, Raggs argues that the fact MP&L did not ask McDaniel
for positive information about Raggs for purposes of computing his
EPP score indicates a pretext. We disagree. The inclusion of only
“the bad stuff” in evaluations being conducted of employees
throughout the company does not in any way indicate an attempt to
discriminate against a specific individual.
The sum of Raggs' relevant evidence that MP&L's assignment to
him of inferior equipment, his low EPP score, and the different
level of scrutiny and harshness of reprimands that he contends
management applied to him, possibly could be construed as more than
a “mere scintilla” of evidence of a pretext, as the magistrate
judge concluded. Wyvill v. Unite Cos. Life Ins. Co., 212 F.3d 296,
301 (5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001). As we
noted above, evidence of pretext alone may, but will not always,
will sustain a fact-finder's inference of unlawful discrimination.
In this case, however, we agree with the magistrate judge that the
evidence was not sufficient for a reasonable jury to conclude that
MP&L unlawfully discriminated against Raggs when it laid him off.
14 C. The 1999 Failure to Rehire.
Raggs' EPP evaluation was central to MP&L's 1999 decision not
to rehire him. Therefore, the above discussion regarding evidence
of Raggs' low EPP score and the absence of sufficient evidence of
pretext to lay him off also applies to the issue of discrimination
in MP&L's decision not to rehire him. As we noted above, there is
very little, if any, evidence that Raggs' low EPP score evidenced
a pretext. However, there was additional evidence presented at
trial regarding MP&L's failure to rehire Raggs, which we will now
address.
Raggs' primary contention is that a pretext for race
discrimination is evidenced in the letter MP&L sent to him
indicating the reason for not rehiring him. The letter stated that
the reason for not rehiring Raggs was that he was “not qualified.”
Raggs contends that, contrary to the rationale contained in MP&L's
letter to him, he was thoroughly “qualified” for the position of
lineman. MP&L does not dispute that Raggs had many years of
experience and thorough knowledge of the job. Rather, MP&L asserts
that it used the words “not qualified” in the letter to comply with
its collective bargaining agreement, when it really meant that
Raggs was an inferior or incompetent employee based on his previous
record with the company.
Given Vaughn's testimony that MP&L's decision not to rehire
Raggs was based entirely on the arbitrator's report, we conclude
15 that the letter sent to Raggs merely contained a poor choice of
words. We do not believe that a reasonable jury could conclude,
based on this issue of semantics, that MP&L's use of the word
“qualified” referred to characteristics such as experience and
knowledge of the job. Rather, we believe the only rational
inference from the evidence is that MP&L used the words “not
qualified” to mean incompetent or inferior.
In addition, MP&L provided further evidence in its favor on
the issue of discrimination playing a factor in its decision not to
rehire Raggs. The job was originally offered to Jerry Miles, an
African-American. After he was killed in an automobile accident
before he started work, the next laid-off employee to be rehired
was Robert Lester, who is also African-American. Therefore, we
conclude that MP&L's 1999 failure to rehire Raggs was not racially
motivated.
D. The Retaliation Claim.
Raggs claims that his low EPP score and the 1996 termination
were in retaliation for his 1989 EEOC complaint. In addition,
Raggs claims that MP&L's refusal to rehire him was retaliatory for
his 1989 and subsequent EEOC complaints as well as the lawsuit that
led to this appeal. There are three elements to a prima facie case
of retaliation under Title VII: (1) that the plaintiff engaged in
activity protected by Title VII, (2) that an adverse employment
16 action occurred, and (3) that a causal link existed between the
protected activity and the adverse action. See, e.g., Evans v.
City of Houston, 246 F.3d 344, 352 (5th Cir. 2001). Significantly,
this Court “has held that the 'causal link' required in prong three
of the prima facie case for retaliation is not as stringent as the
'but for' standard.” Id. at 354 (citing Long v. Eastfield Coll.,
88 F.3d 300, 305 n.4 (5th Cir. 1996)).
The seven-year time lapse between Raggs' 1989 EEOC claim and
his 1996 layoff, and the intervening positive evaluation by
McDaniel, undermine any causal connection between those two events.
See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir.
1995). Thus, no reasonable jury could conclude that retaliation
was the reason for MP&L's 1996 decision to layoff Raggs. Unlike
the 1989 EEOC complaint, however, the litigation in this case was
initiated only five months prior to MP&L's refusal to rehire Raggs.
Nevertheless, we have held that “the mere fact that some adverse
action is taken after an employee engages in some protected
activity will not always be enough for a prima facie case. . . .
Title VII's protection against retaliation does not permit EEO
complainants to disregard work rules or job requirements.” Swanson
v. General Servs. Admin., 110 F.3d 1180, 1188 n.3 (5th Cir. 1997).
Other than the five month time period, Raggs has presented no
evidence of retaliation. Thus, we conclude that MP&L's decision
not to rehire Raggs in 1999 was not a function of retaliation.
17 VI. CONCLUSION
For the foregoing reasons, we AFFIRM the magistrate judge's
grant of judgment as a matter of law regarding the claims of race
discrimination and retaliation under Title VII of the Civil Rights
Act of 1964 and 42 U.S.C. § 1981. Based on the evidence, a
reasonable jury could not conclude that MP&L's justifications for
laying off Raggs were pretext to hide racially motivated
intentions. Further, there is not sufficient evidence for a
reasonable jury to conclude that MP&L's decision not to rehire
Raggs was racially motivated.