Grice v. FMC Technologies Inc. ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 30, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-20509
Summary Calendar
LAWRENCE LEE GRICE, JR
Plaintiff - Appellant
v.
FMC TECHNOLOGIES INC, also known as FMC Corporation, also known
as FMC Energy Systems
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:05-CV-1062
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Lawrence Lee Grice, Jr. (“Grice”)
appeals the district court’s order granting summary judgment on
his Title VII race discrimination and retaliation claims in favor
of his employer, Defendant-Appellee FMC Technologies Inc.
(“FMCTI”). For the reasons that follow, we AFFIRM.
*
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that this opinion should not be published and is not precedent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.
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I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, Grice, an African-American male, began
working temporarily as an Assembly Technician at FMCTI. On
September 23, 2002, Grice became a regular, full-time employee of
FMCTI as an Assembler I. As of the date of FMCTI’s brief on
appeal, Grice remained employed with FMCTI.
The position of Assembler at FMCTI has four distinct
designations ranging from Assembler I to Assembler IV. The
difference between each designation depends on the employee’s
amount of mechanical experience: an Assembler I generally has six
months, an Assembler II has two to four years, an Assembler III
has at least four years, and an Assembler IV generally has eight
or more years. An Assembler IV may also serve as a Lead
Assembler, providing supervision for the other Assemblers.
A move from one Assembler designation to another is
considered job progression at FMCTI. FMCTI follows a “promote
from within” philosophy in making its hiring decisions. It posts
all open positions for seven working days on bulletin boards at
each job site and on the company intranet. An employee does not
need to fill out an application to progress to a higher level of
Assembler. If a logical successor exists for the posted
position, the posting states “candidate already identified.”
However, even when FMCTI identifies a candidate for a position,
it accepts applications and considers all candidates for the
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posted position.
On October 6, 2004, Grice filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”),
alleging failure to promote based on racial discrimination and
retaliation. Grice’s EEOC charge states that “[he] believe[s]
[he] was discriminated against because of [his] race and . . .
retaliated against.” Grice’s statement, attached to his EEOC
charge, asserts that “[t]he adverse employment action complained
of includes, without limitation, failure to promote.” Grice’s
EEOC charge did not indicate the position to which FMCTI
allegedly failed to promote him.
FMCTI has no record of Grice’s application for a promotion
prior to his filing of the EEOC charge. FMCTI’s records do
indicate, however, that on October 12, 2004, James Faucett
(“Faucett”), Grice’s supervisor, initiated a job progression for
Grice, moving him from Assembler I to Assembler II, retroactive
to October 1, 2004. Several days before Faucett initiated the
job progression, the FMCTI Human Resources Department received
notice of Grice’s EEOC charge. The Human Resources Department
did not notify Faucett that Grice had filed an EEOC charge prior
to Faucett’s decision to promote Grice to Assembler II.
On November 19, 2004, Grice received a right-to-sue letter
from the EEOC. In December 2004, Grice filed suit against
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FMCTI,1 asserting claims of race discrimination and retaliation
based on FMCTI’s failure to promote him, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1),
2000e-3(a) (2000).2 Grice alleges that FMCTI denied him numerous
promotions, although he provides only one example. Grice claims
that in April 2005, he applied for a Lead Assembler position and
was not promoted. He contends that during his interview for Lead
Assembler, Richard Meier, a supervisor, asked him if he would be
willing to lie for the company if asked to do so. According to
Grice, he responded no, and as a result, Faucett asked two other
employees to apply for lead positions. FMCTI promoted Wilford
Cartha (“Cartha”) and Darren Mayo (“Mayo”), both of whom are
African-American, to Lead Assembler positions. Cartha had been
an FMCTI employee since October 2001, and Mayo had been an FMCTI
employee since January 1997.
Grice makes other claims of unfair treatment. Grice alleges
that in January 2004, Faucett gave Mayo a bad evaluation. Grice
maintains that Mayo convinced Faucett to allow him to redo his
self-evaluation. After Mayo allegedly made changes to his self-
evaluation, Grice contends that Faucett gave Mayo a good
1
Grice’s suit was initially filed in Texas state court,
but FMCTI timely removed the case pursuant to 28 U.S.C. § 1331.
2
Grice also asserted a common law claim for intentional
infliction of emotional distress. The district court granted
summary judgment on this claim, and Grice has not contested this
ruling on appeal.
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evaluation as well as a large pay raise.
Grice further contends that in June 2004 he submitted a
complaint to the FMCTI Human Resources Department stating that he
was harassed when Faucett accused him of lying on his time sheet
about a training class he attended with other Assemblers. Two of
the other Assemblers, Roy Bolten, who is Caucasian, and Tellis
Cannon, who is African-American, left the class early and did not
report any time on their time sheets for attending the class.
Eric Smith, one of Grice’s supervisors, questioned Grice and
others about the length of the class and determined that Grice
had recorded the appropriate amount of time on his time sheet.
Grice filed a second complaint to Human Resources about the
incident, alleging that Faucett had discriminated against him
because the Assemblers who left the class early were not
reprimanded over their time sheets. Human Resources investigated
Grice’s allegations but found no evidence to support Grice’s
claim.
In addition to his race discrimination claim, Grice contends
that FMCTI retaliated against him. Grice claims, inter alia,
that Faucett refuses to allow him to act as a step-up lead when a
Lead Assembler is absent, that he is watched more closely than
others, that he was wrongly accused of forging a signature, that
Faucett falsified an incident report to make it look like the
incident was Grice’s fault, that Faucett failed to inform him
that he was working the day shift upon returning from leave, that
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Faucett holds safety meetings in the smoking area, that Faucett
called him a “little dog,” and that Faucett used the word
“nigger” in front of other employees, but not in Grice’s
presence. There is no record evidence that Grice filed another
EEOC charge or amended his October 6, 2004, EEOC charge with any
of these allegations.
FMCTI filed a motion to strike Grice’s summary judgment
evidence and a motion for summary judgment on all of Grice’s
claims. On April 6, 2006, the district court granted FMCTI’s
motion to strike Grice’s summary judgment evidence on the grounds
that the evidence contained inadmissable hearsay, factual
assertions lacking foundation, and some tape recordings never
proffered to FMCTI. See Grice v. FMC Techs., Inc., No. H-05-
1062, slip. op. at 7 (S.D. Tex. May 24, 2006). Specifically, the
district court struck two unsigned affidavits, Grice’s second
affidavit, portions of Grice’s first affidavit, the signed Lester
Conley affidavit, and the Ira Conley affidavit. Id.On May 24, 2006, the district court granted summary judgment
in favor of FMCTI on all of Grice’s claims.3 Grice timely
appealed the district court’s final judgment, challenging the
court’s grant of summary judgment on his race discrimination and
retaliation claims. This court has jurisdiction pursuant to 28
3
The district court did not rely on any of the stricken
evidence in its order granting FMCTI’s summary judgment motion,
and neither do we since Grice has not challenged the order
striking portions of his summary judgment evidence on appeal.
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U.S.C. § 1291.
II. STANDARD OF REVIEW
We review a district court’s order granting summary judgment
de novo, applying the same standard as the district court. See
Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).
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 a judgment as a matter of law.” FED. R. CIV. P.
56(c). On a motion for summary judgment, we view all facts in
the light most favorable to the nonmoving party. See Fierros v.
Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).
III. DISCUSSION
A. Title VII Framework
The filing of an EEOC charge is a prerequisite to bringing a
Title VII suit in federal court. Young v. City of Houston, 906
F.2d 177, 179 (5th Cir. 1990). A Title VII plaintiff must file a
charge of discrimination with the EEOC within 300 days of
learning of the alleged unlawful employment action. See Huckabay
v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (explaining that for
states, like Texas, that provide an administrative mechanism to
address complaints of employment discrimination, the statutory
period is 300 days); see also 42 U.S.C. § 2000e-5(e)(1).
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“Each discrete discriminatory act starts a new clock for
filing charges alleging that act,” with discrete acts including,
inter alia, failure to promote. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113, 114 (2002). An EEOC charge must be
filed within the 300-day time period after the discrete
discriminatory act occurred. Id. at 113. However, if the
plaintiff is making a hostile work environment claim, then a
series of separate acts can collectively constitute one unlawful
employment practice and the entire time period of the hostile
environment may be considered by the court for the purposes of
determining liability. Id. at 116-18.
Assuming the plaintiff has exhausted his administrative
remedies, then he can prove a claim of intentional discrimination
or retaliation either by direct or circumstantial evidence. We
analyze cases built upon the latter, like this one, under the
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Under McDonnell Douglas, the plaintiff must
first establish a prima facie case of his claim. For race
discrimination, this requires the plaintiff to show that: (1) he
is a member of a protected group; (2) he was qualified for the
position at issue; (3) he was discharged or suffered some adverse
employment action by the employer; and (4) he was replaced by
someone outside his protected group or he was treated less
favorably than other similarly situated employees outside the
protected group. See Wheeler v. BL Dev. Corp., 415 F.3d 399, 405
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(5th Cir. 2005). For retaliation, the plaintiff must establish
that: (1) he participated in an activity protected by Title VII;
(2) his employer took an adverse employment action against him;
and (3) a causal connection exists between the protected activity
and the adverse employment action. Banks v. E. Baton Rouge
Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003); Gee v.
Principi, 289 F.3d 342, 345 (5th Cir. 2002). If the plaintiff
makes a prima facie showing, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory or
nonretaliatory reason for its employment action. See Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)
(discrimination); Gee, 289 F.3d at 345 (retaliation). The
employer’s burden is only one of production, not persuasion, and
involves no credibility assessment. Russell, 235 F.3d at 222.
If the employer meets its burden of production, the plaintiff
then bears the ultimate burden of proving that the employer’s
proffered reason is not true but instead is a pretext for the
real discriminatory or retaliatory purpose. See id.4 To carry
this burden, the plaintiff must rebut each nondiscriminatory or
nonretaliatory reason articulated by the employer. Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003).
B. Application of Title VII Framework to Grice’s Claims
4
Grice has not argued a mixed-motive theory under this
court’s decision in Rachid v. Jack in the Box, Inc., 376 F.3d 305(5th Cir. 2004).
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1. Race Discrimination Claim
The district court held that Grice’s race discrimination
claim either had not been administratively exhausted or failed on
the merits. The district court found that there was no evidence
that Grice applied for a Lead Assembler position between December
11, 2003, and October 6, 2004, the 300-day period prior to
Grice’s October 6, 2004, EEOC charge. Based on this finding, the
district court concluded that Grice could not make out a prima
facie case of race discrimination on his failure to promote claim
because there was no evidence Grice actually applied for a
position and was not promoted. Instead, the district court noted
that FMCTI actually progressed Grice from Assembler I to
Assembler II effective October 1, 2004.
The district court also rejected Grice’s only example of
FMCTI’s allegedly discriminatory failure to promote him, the
April 2005 denial of promotion. According to the district court,
this employment action constituted a discrete, discriminatory
act, requiring Grice to file a new EEOC charge to cover the act.
Because Grice did not file an EEOC charge on the April 2005
failure to promote claim, the district court held that Grice
failed to exhaust his administrative remedies. The district
court further concluded that even if Grice had exhausted this
claim, it would fail because Grice could not show that FMCTI
promoted someone outside of his protected class, as FMCTI had
promoted Cartha and Mayo, both of whom are African-American
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employees.
We agree with the district court. Grice has failed to
present any evidence that he filed any applications for the Lead
Assembler position (or any other Assembler position) prior to
filing his EEOC charge, nor has he presented any evidence that he
was not promoted during this period. We also find no record
evidence supporting Grice’s allegations that he was treated less
favorably than other employees. Even if Grice were able to
establish a prima facie case of race discrimination (which he has
not), he cannot meet his ultimate burden of proving pretext.
See Russell, 235 F.3d at 222; see also Laxton, 333 F.3d at 578.
To the extent Grice is relying on his April 2005 denial of
promotion for his race discrimination claim, the district court
properly concluded that Grice failed to exhaust his
administrative remedies. Failure to promote is a discrete
discriminatory act that starts a new clock for filing charges
alleging that act. See Morgan, 536 U.S. 113-14. Because Grice
was statutorily required to file this claim within 300 days of
the alleged failure to promote, this claim is now time-barred.
See id. Accordingly, we affirm the district court’s order
granting summary judgment on Grice’s race discrimination claim.
2. Retaliation Claim
The district court held that Grice had not established a
prima facie case of retaliation. The district court determined
that Grice’s alleged incidents of retaliation did not constitute
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adverse employment actions under Fifth Circuit precedent. See,
e.g., Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)
(stating that adverse employment actions include only ultimate
employment decisions, such as hiring, granting leave,
discharging, promoting, or compensating).
We affirm the district court’s judgment on Grice’s
retaliation claim, but because of an intervening decision by the
Supreme Court, our affirmance is for reasons different than those
articulated by the district court. Shortly after the district
court issued its decision, the Supreme Court decided Burlington
Northern & Santa Fe Railway Co. v. White, --- U.S. ----, 126 S.
Ct. 2405 (2006), which altered the analysis of retaliation
claims. In Burlington Northern, the Court rejected the approach
taken by several circuits, including this one, that required
plaintiffs to demonstrate an “ultimate employment decision” to
satisfy the “adverse employment action” element of a retaliation
claim. The Court held that “a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, ‘which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.’” 126 S. Ct. at 2415 (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (internal
quotation marks and citation omitted)). The Court further
explained that “material adversity” is distinct from “trivial
harms”: “[a]n employee’s decision to report discriminatory
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behavior cannot immunize that employee from those petty slights
or minor annoyances that often take place at work and that all
employees experience.” Id.Despite this shift in analysis of retaliation claims, Grice
cannot prevail on his retaliation claim. The allegedly
retaliatory incidents of which Grice complains are either
unsupported by the record or so “trivial” that they do not appear
to be the sort of actions that would dissuade a reasonable
employee from reporting discrimination. Cf. id. (noting that
“normally petty slights, minor annoyances, and simple lack of
good manners will not” “deter victims of discrimination from
complaining to the EEOC, the courts, and their employers.”)
(internal quotation marks and citation omitted). In any event,
even if Grice could meet the Burlington Northern standard, he has
not attempted to establish any causal link between the allegedly
retaliatory actions and his participation in a protected
activity. His subjective belief that the incidents were
retaliatory, without more, is not sufficient to survive summary
judgment. See Haley v. Alliance Compressor LLC, 391 F.3d 644,
651 (5th Cir. 2004); Travis v. Bd. of Regents, 122 F.3d 259, 266
(5th Cir. 1997).5
5
The district court also held that to the extent Grice was
attempting to base his retaliation claim on an alleged hostile
work environment, his claim was not administratively exhausted
because he did not allege hostile work environment in his EEOC
charge. Because Grice has not contested the district court’s
ruling on this issue, we affirm.
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment in favor of FMCTI.
AFFIRMED.
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