Roberson v. Game Stop/Babbage's

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 14, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-10308
Summary Calendar
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WANDA ROBERSON,
Plaintiff–Appellant,
v.
GAME STOP/BABBAGE’S,
Defendant–Appellee.
Appeal from the United States District Court
for the Northern District of Texas, Dallas
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Wanda Roberson sued Appellee Game Stop, Inc.
(“Game Stop”), alleging race discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2005) (“Title
VII”) and 42 U.S.C. § 1981 (2005) and violation of the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601-2619 (2005)(“FMLA”).1
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
Roberson also alleged violations of section 451.001 of the
Texas Labor Code, TEX. LAB. CODE ANN. § 451.001 (2005), but those
violations are not before us on appeal.
The district court granted Game Stop’s motion for summary
judgment, and Roberson appeals. We now affirm.
I. Background
Game Stop is a purveyor of video games and other
entertainment software headquartered in Grapevine, Texas.
Roberson, a black woman, began working at Game Stop in August of
1999 as a clerk in the Return-to-Vendor (“RTV”) department at the
company’s Distribution Center. She received a pay raise one year
later. In January 2001, Game Stop promoted Roberson to the
position of RTV Lead, a promotion that brought with it a raise.
In August 2002, Roberson received yet another pay raise. At
various points, she requested training on the WMS computer
system; she received only limited training. In November 2002,
Stephanie McKee, a white woman employed in the RTV department,
was promoted to co-Lead.
On November 11, 2002, after McKee was promoted, Roberson
took FMLA leave to care for her injured son. While Roberson was
absent, McKee performed Lead duties on her own. Roberson
returned to work on December 9, 2002. She continued to perform
her job as she had left it, and continued to work under the same
manager, Cynthia Torres. Roberson heard rumors from co-workers
that she was no longer a Lead, but no official action was taken.
John Simmons, director of the Distribution Center, was aware of
these rumors. There is no indication that Roberson’s salary or
benefits changed.
2
Four days later, Game Stop managers presented Roberson with
a letter indicating their intention to eliminate one of the two
Lead positions. The company had decided to move the defective
check function, with which Roberson had been involved, out of the
RTV department. The letter listed a variety of reasons why McKee
would remain as RTV Lead, one of which was greater familiarity
with the WMS computer system. The letter listed several options
for Roberson: two Lead positions in other departments and a clerk
position in the RTV department.
In the ensuing days, Game Stop managers met and determined
that Roberson should not be demoted. They informed Roberson on
December 19, 2002 that the Lead elimination plan would not be
implemented and that she had the option to remain a Lead in the
RTV department. Roberson was given until December 23, 2002 to
decide, and elected to remain an RTV Lead.
On January 8, 2003, Lori Wolf, now manager of the RTV
department, met with Roberson and McKee to inform the two that
the position of Lead in the RTV department would be eliminated
due to internal restructuring. Game Stop reduced the salaries of
both Roberson and McKee. Roberson’s salary remained higher than
McKee’s. The next day, McKee was given a raise to compensate her
for specific computer duties. Both worked in the position of
clerk. The position of Lead remained eliminated until mid-2004,
when Sharrel, a black woman, was hired to be the Lead.
In April 2003, Roberson injured her foot. She took leave
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again, and exhausted her FMLA-protected leave. On June 18, 2003,
Game Stop terminated Roberson for missing work.
II. Procedural History
Roberson filed suit against Game Stop in federal court in
the Northern District of Texas on November 20, 2003. On January
2005, the district court issued an order granting summary
judgment in favor of Game Stop. On February 8, 2005, the
district court granted Roberson’s motion to reconsider with
respect to the discrimination claims. Upon reconsideration, the
court again granted Game Stop’s motion for summary judgment.
Roberson filed her notice of intent to appeal the judgment on
February 18, 2005.
III. Standard of Review
We review a district court’s grant of summary judgment de
novo. Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir.
2004). Summary judgment is appropriate 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). An issue as to a material fact is “genuine” if the
evidence would permit a reasonable jury to return a verdict for
the non-moving party. Roberson v. Alltel Information Servs., 373
4
F.3d 647, 651 (5th Cir. 2004)(citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). The evidence must be construed
in a light most favorable to the non-moving party and doubts
resolved in their favor. Id.
IV. Discussion
A. Title VII and § 1981 Discrimination Claims
We evaluate the discrimination claims together. Title VII
makes it unlawful for a covered employer to “discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race.” 42 U.S.C. § 2000e-2(a)(1).2 § 1981 grants
all persons within the jurisdiction of the United States equal
rights to “make and enforce contracts,” including “the making,
performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of
the contractual relationship.” 42 U.S.C. § 1981(a)-(b). Because
the same fact pattern underlies both of Roberson’s discrimination
claims, the two are analyzed jointly according to the same
standard of proof. Roberson, 373 F.3d at 651.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and
its progeny establish a burden-shifting analysis to be applied to
2
The parties do not dispute the fact that Game Stop is a
covered employer as defined in § 2000e(b).
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discrimination claims.3 To make out a prima facie case of
discrimination under Title VII, a plaintiff must establish that
she (1) is a member of a protected class, (2) is qualified for
the position in question, (3) has suffered an adverse employment
action and (4) has been replaced by a person who is not a member
of a protected class. Pegram, 361 F.3d at 281; see also
McDonnell Douglas, 411 U.S. at 802-03. These four elements
create a presumption of discrimination, which the defendant may
rebut by presenting a legitimate, nondiscriminatory reason for
its actions. Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 404 (5th Cir. 1999); see also Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248 (1981). If the defendant
succeeds in rebutting the presumption, the plaintiff must
establish that the defendant’s proffered reason for its action is
pretextual. Id.
Roberson’s claim satisfies the first two elements of the
prima facie case. She is black, and thus a member of a protected
class. The record also reflects Roberson’s qualification for the
position in question. Roberson had worked in the RTV department
at Game Stop since August, 1999 and was a Lead since January,
2001. During this period, she received several raises,
demonstrating some level of confidence on Game Stop’s part in
3
A separate framework for “mixed-motive” discrimination
claims was established in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989); Roberson does not raise such a claim.
6
Roberson’s qualification.
Roberson’s claim falls short with respect to the last two
components of the prima facie claim. First, she fails to
establish that she suffered any adverse employment action. “Our
court has a strict interpretation of the adverse employment
element” of the prima facie case for discrimination under Title
VII. Pegram, 361 F.3d at 282. An adverse employment action must
be an “ultimate employment decision” such as hiring, firing,
promoting, demoting, compensating and granting leave. Id. “An
employment action that ‘does not affect job duties, compensation,
or benefits’ is not an adverse employment action” for purposes of
Title VII. Id.(quoting Felton v. Polles, 315 F.3d 470, 486 (5th
Cir. 2002)).
The effect of an action is evaluated according to an
objective standard, and the personal preferences of the employee
for one job over another are not considered. Id. at 283 (holding
that plaintiff’s transfer to a job “playing a supporting role” to
a prior job is not an adverse employment action); cf. id. at 284
(determining that transfer to job with lower incentive pay may be
an adverse employment action); see also Shackelford, 190 F.3d at
407 (maintaining that denial of computer training to plaintiff
who only performed related duties occasionally is not an adverse
employment action); Mattern v. Eastman Kodak Co., 104 F.3d 702,
708 (5th Cir. 1997)(stating that the alleged submission of unfair
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and biased employee evaluations is not an adverse employment
action); Dollis v. Rubin, 77 F.3d 777, 779-82 (5th Cir.
1995)(holding that refusal to allow an employee to attend
training sessions did not constitute an adverse employment
action). In Shackelford, we reiterated our warning in Mattern
not to expand the definition of adverse employment action to
include “events such as disciplinary filings, supervisor’s
reprimands, and even poor performance by the employee –- anything
that might jeopardize employment in the future.” 190 F.3d at
407.
Roberson claims she was a victim of both a discriminatory
demotion and replacement and a discriminatory failure to train.
The record does not support either allegation sufficiently to
survive summary judgment. Roberson points to two instances she
identifies as her demotion, the period between December 9 and
December 19, 2002, after she returned from medical leave, and the
elimination of the lead position on January 8, 2003.
In the December instance, Roberson returned to work from
leave to rumors among co-workers that she had been demoted.
Simmons, director of the Distribution Center, was aware of these
rumors. On December 13, Roberson met with superiors who
presented her with a memorandum indicating their intention to
eliminate one position of RTV Lead and offering her two other
Lead positions or a clerk position in the RTV department. From
8
that meeting until December 19, when the plan to eliminate one
RTV Lead position was cancelled and Roberson was offered the
option of remaining in her position, her benefits and
compensation remained constant. Game Stop’s plans to demote
Roberson never came to fruition. In Pegram, we held that an
actual transfer to a less prestigious position without any drop
in benefits did not rise to the level of an adverse employment
action. Pegram, 361 F.3d at 284. This case is similar; and
Roberson’s potential demotion, which also brought no drop in any
benefits, cannot be considered adverse either.
In the January instance, the RTV Lead position was
eliminated. Roberson and McKee, her white colleague, were both
demoted to RTV clerk, with an attendant pay cut. The pay cut for
each was equivalent. While this demotion could be construed as
an adverse employment action, it did not involve the replacement
of Roberson with a person who was not a member of a protected
class. Thus, Roberson does not present a prima facie case of
discrimination with respect to the January instance.
Game Stop’s alleged denial of WMS computer training to
Roberson also cannot be considered an adverse employment action.
She argues that the failure to train led to her alleged demotion
in December. This contention lacks merit for two reasons.
First, it conflicts with our established precedent. In
Shackelford and Dollis, the failure to provide training and the
9
refusal to allow an employee to attend a training conference,
respectively, did not constitute an adverse employment actions.
Roberson alleges that the ad hoc WMS training was more essential
than the computer training in Shackelford. Even if this were
true, Roberson’s lack of training bore only on her potential
demotion, not the ultimate elimination of the position. In
Shackelford, we rejected plaintiff’s argument that the denial of
training that “tend[ed] to affect” employment status was enough
to constitute an adverse employment action. 190 F.3d at 407.
The connection between the WMS training and the actual adverse
employment action, the January elimination of the RTV Lead
position, is similarly weak in this instance.
Second, if the alleged potential demotion itself did not
rise to the level of an adverse employment action, a refusal to
provide training that allegedly led to the potential demotion
could not either. Our precedent is clear that adverse employment
actions are ultimate employment decisions, not the day-to-day
decisions made in the context of the employment relationship.
Roberson does not allege that her employer’s decision not to
provide her with training was a decision about benefits,
compensation or employment. She merely claims it bore on later
decisions that affected her. Roberson fails to establish a prima
facie case.
B. FMLA Claim
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Roberson complains that Game Stop failed to restore her to
her position as RTV Lead in violation of the FMLA. The FMLA
provides that any employee who takes leave under the Act, and
timely returns, must either be restored “to the position of
employment held by the employee when the leave commenced” or “to
an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment.” 29 U.S.C. §
2614(a)(1). An equivalent position is “virtually identical to
the employee’s former position in terms of pay, benefits and
working conditions, including privileges, perquisites and
status.” 29 C.F.R. § 825.215(a)(2001). See also Hunt v. Rapides
Healthcare System, LLC, 277 F.3d 757, 766 (2001). The FMLA
establishes two exceptions to the reinstatement right, one of
which is that the employee is not entitled to “any right,
benefit, or position of employment other than any right, benefit
or position to which the employee would have been entitled had
the employee not taken the leave.” 29 U.S.C. § 2614(a)(3).
Roberson’s failure to reinstate claim has two components.
First, she argues that she was not restored to her position as an
RTV Lead upon her return from leave. Second, she argues that her
remaining a Lead upon return from leave was conditional on her
receipt of WMS training. She claims this condition means the
FMLA required Game Stop to provide the training to her.
Roberson complains that she was not reinstated to her RTV
11
Lead position when she returned from leave. Although it did not
analyze the issue, the district court noted in passing its belief
that an issue of fact existed as to whether Roberson was
restored.4 Roberson characterizes this comment as the district
court’s conclusion. We disagree both with Roberson’s
characterization of the comment, in reality a remark far short of
a finding, and the substance of the comment itself. On summary
judgment, we review questions as to whether there exist genuine
issues of material fact de novo, albeit with deference to the
nonmovant. Jones v. Southern Marine & Aviation Underwriters,
Inc., 888 F.2d 358, 360 (5th Cir. 1989). The record as is would
not allow a reasonable trier of fact to conclude that Roberson
was not restored to her position, just as it would not allow that
trier to conclude she suffered an adverse employment action.
When Roberson returned to her job from leave, she had the same
pay and the same benefits. Game Stop informed Roberson of its
intent to eliminate on RTV position, but that plan never came to
fruition. The December 19 memorandum offered her the option to
remain in her position. One cannot remain in a position one does
not hold in the first place. There is no material fact issue as
to whether Roberson returned to a job similar in every tangible
4
The only language to this effect is the following
dependent clause: “[a]lthough there exists a fact issue as to
whether Plaintiff was restored to her original position . . . .”
Roberson v. Game Stop, Inc., No. Civ. 3:03-CV-2816-H, 2005 WL
139112, at *4 (N.D. Tex. Jan. 30, 2005)
12
respect to the one she left. While Roberson was demoted later,
that demotion was part of a general restructuring that eliminated
the position altogether. To the FMLA’s reinstatement right, “a
necessary exception is provided if the position has been
eliminated.” Hunt v. Rapides, 277 F.3d 766. Roberson is not
entitled to keep a job that no longer exists.
Roberson also argues that Game Stop’s failure to provide her
with training constituted a failure to reinstate under the FMLA.
She contends that her ability to remain a Lead was conditioned on
her receipt of the training. But the record demonstrates that
Game Stop restored Roberson to her job as RTV Lead and later
eliminated the position altogether. McKee, who did receive the
training, lost her job as Lead. There is no indication that any
amount of training would have precluded Game Stop’s decision to
eliminate the position. Game Stop restored Roberson to the RTV
Lead position, and thus her FMLA claim fails.
V. Conclusion
For the reasons above, we affirm the judgment of the
district court.
AFFIRMED.
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