Haynes v. Pennzoil Company ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-20642
Summary Calendar
____________________
THEODORE HAYNES, JR,
Plaintiff-Appellant,
v.
PENNZOIL COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-2217)
_________________________________________________________________
March 31, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Theodore Haynes, Jr. appeals the
district court’s grant of summary judgment in favor of defendant-
appellee Pennzoil Company on his claims of race discrimination
and retaliation. We reverse the judgment of the district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
and remand the case for further proceedings consistent with this opinion.
I. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff-appellant Theodore Haynes, Jr. began working for
defendant-appellee Pennzoil Company’s (Pennzoil) Treasury
Department in March 1985. Between March 1985 and May 1990,
Pennzoil promoted Haynes four times and gave him seven pay
raises. In addition, during that period, Pennzoil paid Haynes’s
tuition and related expenses. In December 1988, Haynes earned a
B.B.A. in Accounting from the University of Houston.
In the summer of 1989, Haynes applied for tuition
reimbursement so that he could attend paralegal school. Pennzoil
denied his request because its educational assistance policy
required that the course of study be related to the employee’s
position within the company. In the summer of 1991, Haynes
requested an educational leave of absence so that he could attend
law school. Pennzoil denied his request on the grounds that its
educational leave policy stated that “[s]uch leaves should be for
advanced degrees (beyond the bachelor level) associated with the
employee’s work-related activities and are subject to management
approval.” In addition, Pennzoil’s policy permitted an
educational leave to extend for a maximum of two years. After
Pennzoil denied his request on the grounds that law school was
not related to his work as an accountant, Haynes stopped going to
work and began attending law school. Because he failed to submit
2
a letter of resignation, which he was instructed to do, his file
reflected that he was terminated for failing to report to work.
In January 1991, Haynes filed an EEOC complaint alleging
that Pennzoil denied his request for an educational leave because
of his race. On April 28, 1992, the EEOC determined that
Pennzoil’s decision had not been discriminatory. In July 1992,
Haynes filed suit against Pennzoil, claiming that it had
discriminated against him on the basis of his race in violation
of Title VII of the Civil Rights Act of 1964, codified at 42
U.S.C. § 2000e, and of 42 U.S.C. § 1981. In 1993, the parties
agreed to a settlement and the suit was dismissed. The
settlement included, among other things, Pennzoil’s reinstatement
of Haynes to his former position with credit for continuous
service. In addition, the settlement acknowledged that Pennzoil
did not “undertake any obligation to assign [Haynes] to or
consider him for any position in Pennzoil’s legal department.”
Haynes returned to Pennzoil’s accounting department in
August 1993. On November 18, 1993, Haynes began inquiring about
legal positions within Pennzoil. Pennzoil responded that it
would post “openings for entry-level legal positions (defined as
jobs that require a law degree and license) in the Legal
Department.” From that time until Haynes’s termination, Pennzoil
neither posted for nor hired any attorneys that it considered to
be “entry-level.” However, in the spring of 1995, Pennzoil did
hire two attorneys--one was a gas marketing attorney with over
3
fifteen years of experience and the other was an oil and gas
attorney with approximately three years of experience.
Pennzoil claims that in October 1995, it began a program of
streamlining its corporate structure to cut costs. The program
required the elimination of over 600 jobs and resulted in the
merger of Haynes’s group and another group. The management of
the new group determined that the department should be reduced by
two accountants. Pennzoil claims that in order to accomplish
this reduction, it ranked the employees in the department and
discharged the two lowest ranked employees, one of whom was
Haynes.
On July 5, 1996, Haynes filed this lawsuit, alleging, among
other things, that Pennzoil discriminated against him by not
considering him for the two attorney openings and by later firing
him. On October 4, 1996, Pennzoil moved for partial summary
judgment on several of Haynes’s claims, arguing that they had
been settled and released in his previous lawsuit.
The district court held hearings on November 14 and December
17, 1996, to discuss Pennzoil’s motion for partial summary
judgment. At the hearings, the district court indicated its
willingness to go beyond the scope of the summary judgment motion
and eliminate any issues in the case for which there existed no
genuine issues of material fact. On July 3, 1997, the district
court entered summary judgment in favor of Pennzoil on all claims
and dismissed the case.
4
II. SUMMARY JUDGMENT STANDARD
“We review a grant of summary judgment de novo, ‘including
the question whether the court provided the notice required by
Fed. R. Civ. P. 56.’” United States v. Houston Pipeline Co., 37
F.3d 224, 226-27 (5th Cir. 1994) (quoting Resolution Trust Corp.
v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398, 1401 (5th
Cir. 1993)). We consult the applicable law in order to ascertain
the material factual issues, and we then review the evidence
bearing on those issues, viewing the facts and inferences to be
drawn therefrom in the light most favorable to the nonmovant.
King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). Summary
judgment is appropriate only “if the pleadings, depositions,
answers to interrogatories, and 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).
III. DISCUSSION
Haynes raises several points of error on appeal. First, he
contends that the court relied on inadmissible evidence and that
it was biased against him in its consideration of the case.
Second, he argues that the court erred in failing to permit him
to conduct an adequate amount of discovery. Finally, he asserts
5
that the court failed to consider his retaliatory discharge
claim.1 We address each of these claims in turn.
Haynes first argues that the district court considered
inadmissible evidence offered by Pennzoil. Haynes bases this
complaint on the district court’s statement in the December
hearing that if Haynes required the authentication of certain
documents2 submitted by Pennzoil without any reason for
questioning their authenticity then the court would assess the
resulting costs against him if the documents proved to be
authentic. Pennzoil responds that the district court was
justified in giving Haynes such a warning and notes that he
remained free to require authentication of the documents and to
appeal any resulting allocation of costs.
1
Haynes also contends that the district court’s sua
sponte decision to grant summary judgment on all of his claims
was improper because he did not receive adequate notice of the
court’s intention to do so. Because we conclude that the
district court’s grant of summary judgment was improper for other
reasons, we need not address this issue.
2
Pennzoil submitted the documents in question in
response to the district court’s request for information on
Haynes’s termination and his not being considered for the two
attorney positions. The documents included the following: (1)
job descriptions for the two available attorney positions; (2)
information forms submitted by the two successful applicants for
the positions and by Haynes; (3) internal Pennzoil newsletters
detailing the reduction-in-force; (4) several documents involving
Haynes’s termination, including a chart showing the rankings of
accounting personnel and an evaluation of Haynes.
6
It is well-settled that, “[t]o be admissible [as summary
judgment evidence], documents must be authenticated by and
attached to an affidavit that meets the requirements of [Federal
Rule of Civil Procedure] 56(e) and the affiant must be a person
through whom the exhibits could be admitted into evidence.” 10A
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2722, at 59-60
(2d ed. 1983) (footnotes omitted). The documents submitted by
Pennzoil in its supplement to its motion for summary judgment
were not authenticated. Pennzoil argues that Haynes’s attorney’s
colloquy3 with the district court about this issue resulted in
3
Lopez and the district court engaged in the following
exchange on this issue:
MR. LOPEZ: All we have is, you know, this unverified
sheet of paper purporting to show the rankings. I have
no idea what it is --
THE COURT: I’ll be happy to have somebody from
Pennzoil verify it, if it turns out not to be any
change, then you pay the cost of all that. There is no
sense in going through the empty exercises. Mr. Smith
and the lawyers from Pennzoil and Pennzoil itself are
here representing. These are the documents from
Pennzoil.
MR. LOPEZ: All I’m asking is they comply with the
rules.
THE COURT: And if you want them to comply pointlessly
to what you have no reason to believe is necessary,
then I’ll assess the cost. This is not a game. This
is a legitimate purpose. You tell me what’s wrong with
this printout. . . .
. . .
THE COURT: . . . you feel free, if you really want to
depose any of the records custodian to see whether they
7
its being waived, claiming that Haynes should have requested the
authentication and then later appealed any cost shifting imposed
by the district court. We disagree.
The requirement of authentication is subject to waiver if it
is not raised before the trial court by the opposing party. See
United States v. “Monkey”, 725 F.2d 1007, 1011 n.4 (5th Cir.
1984) (“Objections to authenticity . . . are waived by a failure
to raise them in the District Court, where the [opponent] could
have remedied any technical deficiencies.”); 10A WRIGHT ET AL.,
supra, § 2722, at 60 (“As is true of other material introduced on
a summary judgment motion, uncertified or otherwise inadmissible
documents may be considered by the court if not challenged.”).
The purpose of the requirement that objections be raised before
the district court is to prevent the unnecessary appeal of an
issue that could have been cured at the district court and to
insure that the district court has had an opportunity to rule on
the issue. In this case, Haynes’s attorney clearly objected to
the consideration of the unauthenticated documents offered by
Pennzoil, and at no time after raising the authentication issue
did he indicate that he wished to waive the requirement.
Contrary to what the district court’s discussion of the
issue implies, it is the burden of the party offering documentary
evidence to provide proof of its authenticity; it is not the
produced this from their records or not.
8
burden of the opposing party to prove that the evidence is not
authentic. See United States v. Sutherland, 656 F.2d 1181, 1201
(5th Cir. Unit A 1981). Moreover, the error in this case was not
harmless. The district court’s Opinion on Judgment relies on the
document containing the employee rankings as the primary evidence
that Pennzoil’s decision to terminate Haynes was based on a valid
business reason and not on illegal discrimination. In addition,
the Opinion indicates that the district court relied on the
application forms submitted by the two new attorneys in disposing
of Haynes’s claim that he should have been considered for and was
qualified for the legal positions. These documents were not
competent summary judgment evidence. As Pennzoil introduced no
competent summary judgment evidence to rebut Haynes’s claim of
discrimination, entry of summary judgment was not proper.4
Haynes next contends that the district court erred in not
allowing him adequate time for discovery before granting summary
judgment and in conducting its own discovery on behalf of
4
Haynes contends that the admission of the
unauthenticated documents demonstrated that the district court
was biased against him. He further contends that, throughout the
proceedings, the district court “exhibited an unreasoning [sic]
prejudice against [his] claims and a bias for the company,” and
he suggests that some of the statements by the district court
regarding the racial characteristics of Haynes’s department also
demonstrate that bias. We disagree. The majority of the
statements to which Haynes refers have been taken out of context.
When read in the context of a relevant discussion of the racial
composition of the department, the comments in question, although
perhaps insensitive, do not suggest that the court was biased
against Haynes. Thus, we decline to reassign the case to a
different judge on remand.
9
Pennzoil. This argument lacks merit. The district court did not
grant summary judgment until July 3, 1997, more than six months
after the December hearing in which Haynes requested additional
discovery. Haynes points to no specific material that the
district court prevented him from discovering or that he was
lacking when the district court entered the judgment.5 Moreover,
the fact that the district court directed Pennzoil to provide
certain documents to Haynes does not indicate that the court
“conducted its own discovery and sought to prevent [Haynes] from
obtaining discovery.”
Lastly, Haynes contends that the district court failed to
address his claim of retaliatory discharge.6 In order to
establish a prima facie case of retaliation in violation of Title
VII, the plaintiff must establish three elements: (1) “the
plaintiff must have engaged in protected participation or
opposition;” (2) “the employer must have imposed upon the
plaintiff some adverse employment action;” and (3) “the employer
must have taken the adverse employment action because the
plaintiff engaged in protected activity (i.e., the employer must
5
Indeed, Haynes does not dispute Pennzoil’s contention
that, shortly after the December hearing, Pennzoil responded to
the discovery requests that were outstanding and that it
responded to his subsequent discovery request on April 18, 1997.
6
In its Opinion on Judgment, the district court
addressed Haynes’s termination, but did not mention the
retaliation issue, instead focusing only on the reduction-in-
force.
10
have had a retaliatory motive).” 2 BARBARA LINDEMANN & PAUL GROSSMAN,
EMPLOYMENT DISCRIMINATION LAW 672 (3d ed. 1996) (footnotes omitted);
see also Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th
Cir. 1992).
Haynes filed a discrimination complaint with the EEOC (a
protected participation), and Pennzoil fired him (an adverse
employment action) after he filed the complaint (a temporal
causal connection to the protected activity that permits an
inference that Pennzoil had a discriminatory motive). Thus,
Haynes established a prima facie case of retaliation, and the
burden was on Pennzoil to produce evidence that it had a
nonretaliatory reason for terminating him. LINDEMANN & GROSSMAN,
supra, at 675. As Pennzoil’s evidence of nonretaliatory reasons
for Haynes’s termination (i.e., the reduction-in-force and his
low ranking among accountants) was not authenticated and was
therefore inadmissible, it has failed to rebut Haynes’s prima
facie case of retaliation.7 On remand, the district court is
instructed to give due consideration to Haynes’s claim of
retaliatory discharge.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the
7
Pennzoil contends that Haynes has waived his
retaliation claim by failing to raise it at either of the
conferences. We disagree. The retaliation claim is one aspect
of the termination claim, which was clearly raised and preserved
at the conferences.
11
district court, and we REMAND the case for further proceedings
consistent with this opinion on the issues of (1) Haynes’s
termination (including his retaliatory discharge claim) and (2)
Pennzoil’s failure to consider Haynes for an attorney position.
Costs shall be borne by Pennzoil.
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