Taylor v. Exxon Corporation ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-20216
Summary Calendar
____________________
GENERAL TAYLOR, JR, ET AL,
Plaintiffs
JOHN TAYLOR
Plaintiff - Appellant,
v.
EXXON CORPORATION,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-143)
_________________________________________________________________
November 16, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
On January 17, 1996, John Taylor, an Exxon employee, filed
suit against Exxon, alleging race discrimination under Title VII
of the Civil Rights Act of 1964. On January 18, 1996, Taylor
filed a race discrimination charge with the EEOC. Exxon
Corporation terminated Taylor’s employment on February 1, 1996.
*
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this opinion should not be published and is not precedent except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.
On May 13, 1997, Taylor filed his First Amended Complaint,
claiming Exxon discharged him in retaliation for filing the race
discrimination charge with the EEOC. The district court granted
Exxon’s motion for summary judgment on January 28, 1998. Taylor
appeals with respect to the Title VII retaliation claim.
I.
John Taylor began working for Exxon on December 16, 1987, as
an administrative clerk in the mail room of the Controller’s
Department. He worked at various jobs in the Banking section of
the Controller’s Department for six years. In late 1994, the
Banking and Vendor Verification sections were merged, and Don
Wallenhorst became Taylor’s new supervisor. Taylor asked
Wallenhorst for more responsibility. In response, Taylor was
moved to the Vendor Verification section in December of 1994.
Jayne Hollywood was coordinator of the Vendor Verification
section. The employees in the Vendor Verification section were
responsible for verifying the authenticity of new vendor invoices
for payments. Exxon adopted written procedures explaining the
steps to be followed in the verification process.
In the Spring of 1995, Taylor received a performance
evaluation for the previous 12-month period. He was ranked in
the bottom 10% of his peer group, which consisted of all non-
exempt employees in the “Downstream Accounting group.” According
to Exxon, customer comments, the need for close supervision, and
numerous errors accounted for Taylor’s low ranking. As a result
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of his poor performance, Taylor received numerous verbal
instructions and was counseled several times between April and
August 1995.
Taylor contends that in April of 1995, his supervisor,
Wallenhorst, began harassing him and being rude to him. Taylor
attributes this treatment to his ethnicity. However, he did not
report anything to the Human Resources Department until August
24, 1995, when he reported three separate incidents.
First, Taylor reported that in April, while discussing Exxon
business with Taylor, Wallenhorst stated: “[I]f we all go down,
I mean, its just like the NAACP, John. We all go down just like
the NAACP went down.” Second, Taylor reported an incident that
occurred in August. This incident involved mistakes that Taylor
had made and Jayne Hollywood, his section coordinator, had
discovered. Hollywood approached Taylor on two occasions on the
same day about mistakes. On the second occasion, Hollywood used
profanity. According to Taylor, she stated: “[L]ook at me.
Look at me. I am tired of this bullshit. I don’t know what the
problem is.” Third, Taylor reported that in the fall of 1995,
during a meeting in which Wallenhorst, Hollywood, and Taylor were
present, Wallenhorst announced that Taylor had received a pay
raise. Taylor objected to Jane Hollywood’s presence in the room.
According to Taylor, Wallenhorst asked if Taylor would mind if
Will Cunningham was in the room. Taylor believed Wallenhorst was
insinuating that Taylor had a problem with a white female and not
a black male.
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In November of 1995, Wallenhorst presented Taylor with a
Performance Improvement Plan that had been developed specifically
for Taylor. As part of the Plan, Wallenhorst advised Taylor of
several specific areas which required his immediate attention,
the most important of which were to “follow the established
vendor verification control procedures” and to “record accurate
documentation associated with these steps.” Wallenhorst also
informed Taylor that his Plan progress would be monitored and
that if his performance did not improve Exxon would take
disciplinary action against him, including termination.
On January 17, 1996, Wallenhorst conducted an interim
improvement performance review. He informed Taylor that, while
Taylor had improved, the improvement was not sufficiently
significant to remove his work from the unsatisfactory category.
Wallenhorst cited specific deficiencies, which Taylor has not
disputed. Wallenhorst again warned Taylor about his errors.
On January 18, 1996, the day after Taylor received a
negative review and was threatened with termination should his
performance fail to improve, Taylor filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). Several days later, Taylor informed Wallenhorst that
he had filed a charge with the EEOC. On January 31, 1996, Taylor
was suspended from employment for failing to verify two vendor
invoices. In the verification process, Taylor represented that
he had verified the vendor information, thus authorizing all
future invoices submitted by the two vendors. On February 1,
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1996, Taylor was terminated for “falsifying company documents.”
II.
On January 17, 1996, General Taylor, Jr., Elizabeth L.
Harris, and John Taylor filed a class action complaint against
Exxon. The Plaintiffs were represented by Julius L. Larry, III.
On November 5, 1996, the court granted Larry’s motion to withdraw
as counsel. On February 20, 1997, the court granted the
plaintiffs sixty days to secure new counsel and proceed with the
case.
General Taylor, Jr. and Elizabeth L. Harris failed to appear
at the next scheduling conference on April 21, 1997.
Accordingly, the court dismissed their claims for want of
prosecution. John Taylor, however, appeared at the April 21,
1997, scheduling conference represented by Steve Petrou and at
that time made an oral motion for leave to amend his complaint.
On April 23, 1997, the court granted Taylor’s motion and allowed
him to amend his complaint to proceed as an individual action.
Taylor subsequently submitted his amended pleading alleging
race discrimination and retaliation under Title VII of the Civil
Rights Act of 1964. On January 28, 1998, the district court
granted summary judgment in favor of Exxon. Taylor appeals the
district court’s dismissal of his retaliation claim.
III.
This court reviews a grant of summary judgment de novo.
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Scot Properties, Ltd. v. Wal-Mart Stores, Inc., 138 F.3d 571, 573
(5th Cir. 1998). A party is entitled to summary judgment upon a
showing that there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law. Anderson
v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). Any fact
“that might affect the outcome of the suit under the governing
law” is a material fact. Id. The court must consider the facts
in the light most favorable to the non-moving party. Id. at
2513. In opposing a motion for summary judgment, the non-moving
party may not rest upon mere allegations or denials but must set
forth specific facts showing that there is a genuine issue of
material fact. Morris v. Covan Worldwide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998); FED. R. CIV. P. 56(e). If the non-
movant bears the burden of proof at trial, the moving party need
not submit evidence to support its motion, but need only point
out the absence of evidence supporting the non-movant’s case.
Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.
1991).
IV.
In the Title VII retaliation context, the courts have
created a burden-shifting analysis for use in summary judgment
proceedings. First, the plaintiff must present sufficient
evidence to establish a prima facie case of retaliation. See Ray
v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995).
Upon such a showing, the burden shifts to the employer to offer a
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legitimate, nondiscriminatory reason for its adverse actions.
Id. If the employer makes such a showing, the plaintiff may
avoid summary judgment by showing that the employer’s reason is
pretextual and that “but for” the plaintiff’s protected
activities, the plaintiff would not have been subject to the
adverse actions. Id.
To establish a prima facie case of retaliation, a plaintiff
must demonstrate that: (1) he engaged in a statutorily protected
activity; (2) an adverse employment action occurred; and (3)
there was a causal connection between the protected activity and
the adverse employment action. See Nowlin v. Resolution Trust
Corp., 33 F.3d 498, 507 (5th Cir. 1994).
Exxon does not contest that the first two elements of the
prima facie case are met. It is undisputed that Taylor engaged
in a statutorily protected activity when he filed a race
discrimination claim with the EEOC. Taylor’s termination from
Exxon was an adverse employment action. See Mattern v. Eastman
Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), cert. denied, 118
S. Ct. 336 (1997)(The “adverse employment action” prong requires
evidence of an “ultimate employment decision” such as hiring,
granting leave, discharging, promoting, and compensating.).
However, Exxon contends that the third element of the prima facie
case is not satisfied. According to Exxon, Taylor has failed to
present sufficient evidence to show a causal connection between
the protected activity and the adverse employment action.
Causation can be inferred upon a showing of the employer’s
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knowledge of the protected activity, along with a temporal
relationship between that knowledge and the adverse consequences.
See Ray, 63 F.3d at 435 n.23; Payne v. McLemore’s Wholesale &
Retail Stores, 654 F.2d 1130, 1141 n.13 (5th Cir. 1981). This
court has also found that in deciding on causation it is helpful
to look at the employee’s past disciplinary record and whether
the employer followed its typical policy and procedures in
terminating the employee. See Nowlin, 33 F.3d at 508.
The temporal relationship between Taylor’s complaints and
his discharge does not support a finding of retaliation. Taylor
first complained of race discrimination in August 1995, to Sharyl
Hackett in the Human Resources Department. Taylor, however, was
well aware prior to his meeting with Hackett that his supervisors
were dissatisfied with his work performance. He had already been
told by his supervisors that his work performance was low, that
he would be required to work overtime like the other members of
the team, and that his failure to follow vendor verification
procedures was a concern. Taylor had already been ranked in the
bottom 10% of his rank group. The day before Taylor filed an
EEOC charge, Wallenhorst told Taylor that his performance
remained unsatisfactory and that if his performance did not
improve his employment might be terminated. Taylor’s performance
did not improve, and, on January 24 and 26, Taylor again failed
to follow proper vendor verification procedures.
Taylor now claims that Exxon took retaliatory action against
him after he filed a race discrimination lawsuit on January 17,
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1996. There is no evidence in the record, however, that any of
Taylor’s supervisors knew, prior to the time of Taylor’s
discharge, that he had filed a lawsuit against Exxon on January
17, 1996. Rather, Taylor’s supervisors found out only about
Taylor’s EEOC charge, and this was after Taylor had already been
repeatedly counseled for his poor performance and his failure to
follow proper vendor verification procedures. Accordingly,
causation cannot be inferred in this case, because there is no
showing of a temporal relationship between Exxon’s knowledge of
the protected activity and Exxon’s termination of Taylor.
Taylor’s past disciplinary record also weighs against a
finding of retaliatory discharge. Even before Taylor first
complained about race discrimination in August 1995, Wallenhorst
and Hollywood repeatedly counseled him for various performance
deficiencies. Some of these deficiencies included: failure to
follow proper vendor verification procedures, mistakes and errors
in processing invoices, low productivity, failure to participate
in overtime work, and elimination of an important control report
without consulting his supervisors. On August 23, 1995, when
Hollywood “cursed” Taylor for his mistakes, Hollywood was
frustrated at Taylor’s continuing failure to follow proper
procedures and to improve his performance. This incident, which
evidenced Hollywood’s heightened frustration with Taylor’s
ongoing performance, is the very incident that prompted Taylor to
complain to the Human Resources Department in the first place.
In addition, the events Taylor claims are possible
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“evidence” of retaliation, such as a change in his hours and the
prohibition on him having visitors in his area, were either
suggested to him before he complained of discrimination or were
policies enforced against all Vendor Maintenance employees.
There is no evidence to suggest that this policy, which
Wallenhorst reiterated to Taylor in August 1995, was created as a
result of Taylor having complained to the Human Resources
Department.
Furthermore, Hollywood documented in her August 24, 1995,
8:38 a.m. memorandum (in which she documented the “cursing”
incident) that she suggested to Taylor that he modify his work
hours to make it possible for him to perform all the vendor
verification requirements. Thus, Hollywood told Taylor he needed
to modify his work hours before Taylor first complained of race
discrimination to the Human Resources Department at 3:00 p.m. on
August 24, 1995. This is direct evidence that Taylor was treated
no differently after he complained to the Human Resources
Department.
The record also indicates that Exxon followed its typical
policy and procedures when it discharged Taylor. In 1995, the
Controller’s Department discharged at least three other employees
for violating company procedures. Taylor claims that other
employees made more egregious mistakes than he did, yet their
employment was not terminated. For example, Taylor notes that
Barbara Kingston’s “mistake” in 1992 enabled another employee to
embezzle $600,000 from the company. Taylor ignores the fact that
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in 1992 the vendor verification procedures were less stringent,
and Barbara Kingston complied with the vendor verification
procedures in place at the time. Also, Taylor notes that Arthur
DeLaGarza was “merely counseled” for approving an overpayment of
$500,000. However, the record indicates that DeLaGarza was
responsible for reviewing daily invoices. His mistake was only
an “oversight.” He failed to notice that a figure that was
supposed to be $50,000 was instead printed as $500,000. Taylor
has not demonstrated that Exxon deviated from its typical policy
and procedures when it discharged Taylor for failure to follow
proper vendor verification procedures and falsifying company
documents.
Taylor has failed to establish a prima facie case of
retaliation under Title VII. The record establishes that
Taylor’s discharge was not related to his complaints of
discrimination. Rather, it was a direct result of his
falsification of company documents and his failure to follow
procedures despite repeated warnings and opportunities to correct
his performance.
In a Title VII retaliation case, the ultimate determination
required for the plaintiff to succeed is that “retaliation for
filing a charge under Title VII was a ‘but for’ cause of the
adverse employment decision.” McDaniel v. Temple Indep. Sch.
Dist., 770 F.2d 1340, 1346 (5th Cir. 1985). Taylor cannot
demonstrate that “but for” his exercise of a protected activity,
Exxon would not have terminated his employment. Given Taylor’s
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history of performance deficiencies and the gravity of the
offense that led to his discharge, Exxon would have discharged
Taylor even if he had never filed an EEOC charge or complained to
the Human Resources department. “[N]o liability for unlawful
retaliation arises if the employee would have been terminated
even in the absence of the protected conduct.” Long v. Eastfield
College, 88 F.3d 300, 305 n.4 (5th Cir. 1996). Because Taylor
cannot carry this burden of proof, summary judgment in favor of
Exxon was appropriate. See McDaniel, 770 F.2d at 1346.
Taylor is unable to prove the essential elements of his
prima facie case for retaliation. There are no genuine issues of
material fact: Taylor’s work performance was unsatisfactory; his
supervisors placed him on a performance improvement plan; his
supervisors counseled him on numerous occasions about following
proper procedures; and Taylor, despite the repeated counseling
sessions, failed to follow the proper procedures in setting up
two vendor accounts in January 1996. Exxon discharged Taylor for
legitimate, non-discriminatory reasons.
V.
For the foregoing reasons, we find that the district court
did not err in granting summary judgment in favor of Exxon. The
judgment is AFFIRMED.
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