BARNES, J., for the .Court.
¶ 1. This case involves a contractual dispute over the sale of the "Heritage Building" in downtown Jackson, Mississippi. The sellers are The Heritage Building Property, LLC; Jenkins Heritage, LLC; and Elverton Investments, LLC (collectively, the "Sellers"). The buyers are Prime Income Asset Management, Inc. and TCI Heritage Building, Inc. (collectively, the "Buyers"). Following the failure to consummate the sale of the building, a dispute arose as to whether the Buyers were entitled to the return of a $100,000 deposit they had placed in escrow. The escrow agent, Chicago Title Insurance Company ("Chicago Title"), subsequently filed an interpleader action in the Chancery Court of Rankin County against the Buyers and the Sellers. After the Sellers filed a motion for summary judgment and the Buyers filed a cross-motion for summary judgment, the chancery court ruled in favor of the Buyers and ordered the return of the $100,000 escrow deposit to them, less $4,732.50 costs and attorneys' fees for Chicago Title, for a total of $95,267.50.
The chancery court entered an agreed order before its grant of summary judgment, discharging Chicago Title of any claims, demands, or liability as escrow agent, and ordering it to deposit the $100,000 escrow funds with the chancery court.
¶ 2. From this judgment, the Sellers now appeal. We find the chancery court erred in granting summary judgment in favor of the Buyers. We reverse and render judgment in favor of the Sellers, awarding them $95,267.50 as liquidated damages.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 3. Counsel for Sellers and Buyers agreed to a "Stipulation of Undisputed Facts" in the chancery court, as follows:
1. On September 12, 2007, the Sellers entered into a Purchase and Sales Agreement with . . . Buyers for the purchase of "The Heritage Building."
2. Pursuant to the Agreement, the Buyers were required to forward $100,000 into an Escrow Deposit with Chicago Title.
The Buyers did not forward the deposit in the time required under the Agreement, resulting in a lapse of the Agreement. However, [the Buyers] informed the Sellers that they were still interested in purchasing the property. As such, the parties signed a Reinstatement and First Amendment to Purchase Agreement ("First Amendment")
on September 21, 2007. On that same date, the Buyers wire-transferred the required $100,000 Escrow Deposit to [Chicago Title].
3. Under the original Agreement (and not changed under the First Amendment), the Buyers had the right to terminate the contract on or before the expiration of the "Inspection Period,"
scheduled to end at 5:00 p.m. . . . on October 10, 2007. The Agreement specifically states "In the event that Buyer does not deliver any notice during the Inspection Period (notice to proceed or notice of cancellation), Buyer shall be deemed to have timely cancelled this Agreement."
4. On [October 10, 2007], Garry Gibbons, [on behalf of the Buyers] informed Breck Hines, an agent of the Sellers, that the Buyers wanted to proceed but needed an additional amendment regarding extending the deadline for the Buyers to perform a title and survey review, and for assumption of financing. The Sellers subsequently agreed to the requested terms, and their counsel drafted and circulated the proposed Second Amendment via email at 3:30 p.m.
5. Counsel for the Buyers forwarded the [Second Amendment] to the Buyers for signature. Steven Shelley, the representative for the Buyers, signed the Second Amendment and returned [it] to the Sellers via email at 4:25 p.m.
6. Breck Hines obtained the signature of Ted Duckworth, on behalf of The Heritage Building Property, LLC, on the Second Amendment. At 4:41 p.m., Breck Hines sent a copy of the Second Amendment, which was signed by Ted Duckworth back to Steve Shelley and others via email. In his email, Breck Hines gave the Buyers written confirmation that the other two Sellers had verbally agreed to the extension, but that they were out of state and that it could be the next day before they signed it.
7. The Second Amendment, signed by the Buyer and one Seller, stated that "the Inspection Period has expired" and the Buyer has "no further right to terminate the Agreement. . . ."
8. Prior to 5:00 p.m., Jeff Agrest, counsel for the Buyers, had a telephone conversation with Dru Luckett, a paralegal in the offices of counsel for Sellers, asking her to "trash" the Second Amendment, stating he wanted to "further modify it." [At 4:55 p.m., an email from Dru Luckett to Jeff Agrest, with Breck Hines and Steve Hendrix copied, confirmed this conversation and request.]
9. At 5:14 p.m., [Jeff Agrest] forwarded a "Revised" Second Amendment to Dru Luckett via email. In his email, he noted that the Buyers were requesting that the Inspection Period be extended, and in the alternative-if the Inspection Period could not be extended, his email should "serve as a termination notice." 10. Negotiations for the purchase of the Heritage Building continued between the Parties until Garry Gibbons finally informed Breck Hines on November 1, 2007, that the Buyers no longer intended to go through with the purchase.
11. The proposed Second Amendment was not signed by the remaining two Sellers prior to the Buyers making their request to "trash."
Footnotes of the parties in the stipulation are omitted as they add nothing of import to this opinion; bracketed materials are inserted by the Court.
¶ 4. A dispute then ensued between the parties over who was entitled to the $100,000 escrow deposit. The Sellers claimed they were entitled to it as liquidated damages under the Agreement. The Buyers stated it should be returned to them pursuant to their rights of termination found in the Agreement. Subsequently, Chicago Title filed an interpleader action against the Buyers and Sellers in the Chancery Court of Rankin County. Both the Sellers and the Buyers filed motions for summary judgment. The chancery court entered an agreed order whereby Chicago Title was discharged from liability and the escrow funds were deposited with the court. The parties also stipulated that Chicago Title was entitled to $4,732.50 for costs and attorneys' fees.
¶ 5. Following a hearing on the motions for summary judgment, on July 25, 2008, the chancellor entered an order dismissing the Sellers' motion for summary judgment and granting the Buyers' cross-motion for summary judgment. The chancellor ordered return of the $100,000 escrow deposit to the Buyers, less Chicago Title's costs and attorneys' fees of $4,732.50. The Sellers timely appealed, raising two issues: whether the trial court erred in finding that: (1) the Second Amendment was not binding on the parties, and (2) the Buyers did not give "notice of intention to proceed" with the purchase of the Heritage Building under the original Agreement.
STANDARD OF REVIEW
¶ 6. This Court reviews a trial court's grant of summary judgment de novo. Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 814 (¶ 6) (Miss. 2006) (citing Stephens v. Equitable Life Assurance Society, 850 So.2d 78, 82 (¶ 10) (Miss. 2003)). Summary judgment is proper "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." M.R.C.P. 56(c). Since the parties agree that the facts in this case are undisputed, the inquiry is solely a question of law.
ANALYSIS
¶ 7. The chancellor ruled that because not all of the Sellers had signed the Second Amendment to the Agreement, it was not binding on either the Sellers or the Buyers before the expiration of the Inspection Period. Further, as the Buyers did not provide written notice to proceed or cancel the contract prior to expiration of the Inspection Period, the chancellor determined that the Buyers timely cancelled the original Agreement.
¶ 8. The Sellers focus their argument on whether the Buyers could revoke their assent to the Second Amendment. The Sellers argue even if the Buyers could revoke their assent, and the Second Amendment was not effective, the original Agreement was still in effect because the Buyers gave notice to proceed before and after the Inspection Period. Accordingly, the Sellers claim they are entitled to the escrow deposit as liquidated damages because the Buyers breached the Agreement by not going forward with the purchase of the property. Finding the first issue dispositive, we decline to address the second.
Enforceability of the Agreement's Second Amendment
¶ 9. It is undisputed that the original Agreement became a contract between the Buyers and the Sellers on September 12, 2007. On October 10, 2007, at the Buyers' request, the Sellers' counsel drafted a proposed Second Amendment, which clearly stated that upon execution of amendment, the Buyers acknowledged that the Inspection Period had expired and that they had no further right to terminate the Agreement. Shelley first signed the Second Amendment as a representative for the Buyers and returned it to the Sellers via email at 4:25 p.m. Only one of the three Sellers, Duckworth, was able to print out and sign the Second Amendment prior to 5:00 p.m., as the other Sellers were out of state. However, Hines, as agent for the Sellers, communicated to the Buyers, by email, that the other two Sellers had verbally agreed to the Second Amendment, and that they would sign it the following day. Then, at 4:55 p.m., counsel for the Buyers contacted the paralegal for the Sellers, and told her to "trash" the Second Amendment.
¶ 10. It is well established that contracts may be modified by a subsequent agreement between the parties. Kelso v. McGowan, 604 So.2d 726, 731 (Miss. 1992) (citing 3 A. Corbin, Contracts § 574 at 373-75 (1960)). However, "[f]or a subsequent agreement to modify the original contract, the subsequent agreement itself must meet the requirements for a valid contract." Singing River Mall Co. v. Mark Fields, Inc., 599 So.2d 938, 947 (Miss. 1992). A valid, enforceable contract requires an offer, acceptance of the offer, and consideration. Serv. Elec. Supply Co., Inc. v. Hazlehurst Lumber Co., 932 So.2d 863, 869 (¶ 17) (Miss.Ct.App. 2006) (citing Krebs v. Strange, 419 So.2d 178, 181 (Miss. 1982)). It is elemental that "a contract is not formed until the offeree accepts the terms stated by the offeror." Vice v. Hinton, 811 So.2d 335, 338 (¶ 12) (Miss.Ct.App. 2001) (citing Edwards v. Wurster Oil Co., 688 So.2d 772, 775 (Miss. 1997)). Under Mississippi law, when a person creates a power of acceptance in another party by signing a contract, that person retains the power to revoke simply by giving notice to the other party. Id. at (¶ 14). The revocation must, however, "be communicated to the offeree before he or she has accepted. If the offer is accepted before withdrawal, it becomes a binding contract and cannot be withdrawn." 17A Am.Jur.2d Contracts § 60 (2004).
¶ 11. In the instant case, both parties agree that the Buyers' tender of the signed Second Amendment constituted an offer to the Sellers. The "$100,000 question" is whether that offer was revoked prior to acceptance by the Sellers. We think not. "Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances." Restatement (Second) of Contracts § 30(2) (1981). In this case, one Seller, Duckworth, manifested assent the afternoon of October 10, when he signed and returned the document to Hines. The other two Sellers verbally assented, and an email to that effect was sent by the Sellers' agent, Hines, with a copy of the Second Amendment signed by Duckworth, to the Buyers at 4:41 p.m. It was only after that assent had been communicated to the Buyers that the Buyers attempted to revoke their offer. By that time, we find it was too late.
¶ 12. The Buyers contend that all of the Sellers had to sign the Second Amendment in order to bind the Buyers. The Sellers argue that the Buyers' right to revoke the offer ended once the first Seller signed the Second Amendment even without acceptance by the other two Sellers, but the document "became effective" upon the signing by the remaining Sellers. We cannot agree with either of these propositions as stated.
¶ 13. In Turney v. Marion County Board of Education, 481 So.2d 770, 774 (Miss. 1985), the Mississippi Supreme Court discussed 17 C.J.S. Contracts § 62 (1963) as providing a "comprehensive discussion of the law on signature requirement":
[S]ignature is not always essential to the binding force of an agreement, and
whether a writing constitutes a binding contract even though it is not signed or whether the signing of the instrument is a condition precedent to its becoming a binding contract usually depends on the intention of the parties. The object of a signature is to show mutuality or assent, but these facts may be shown in other
ways, as, for example, by the acts or conduct of the parties.
. . . .
The question as to whether those who have signed are bound is generally to be determined by the intention and understanding of the parties at the time of the execution of the instrument. The reason for holding the instrument void is that if was intended that all the parties should execute it and that each executes it on the implied condition that it is to be executed by the others, and, therefore, that until executed by all it is inchoate and incomplete and never takes effect as a valid contract, and
this is especially true where the agreement expressly provides, or its manifest intent is, that it is not to be binding until signed.
(Emphasis added). The court found the "common thread" running though these passages to be "the intent of the parties. Whether an unsigned writing constitutes a binding contract depends upon the intention of the parties." Id. (finding lessee who declined to execute lease lacked intent to be bound to the terms of lease he later claimed to be valid).
¶ 14. In Skinner v. Haugseth, 426 So.2d 1127, 1130 (Fla.Dist.Ct.App. 1983), the Florida Second District Court of Appeal continued quoting from the C.J.S. where the Mississippi Supreme Court left off:
Where these reasons do not apply, it is usually held that a party who signs and delivers an instrument is bound by the obligations therein assumed, although it is not executed by all the parties named in it, as, for example, where all the parties recognize the validity of the contract and acquiesce in its performance. Usually, however, a party may, on signing, impose an enforceable condition that the agreement is not to be binding until signed by others.
(Quoting 17 C.J.S. Contracts § 62 (1963)) (emphasis added). The Florida court found the "common thread of reasoning" in the cases cited as authority for this later passage to be "whether the signing party manifested the intent not to be bound by the contract unless all of the other parties joined in its execution." Id. at 1130. The Florida court examined, for example, Palman v. Reynolds, 310 Mich. 35, 16 N.W.2d 657, 659 (1944), wherein the Michigan Supreme Court noted that a signing party "has the burden of showing that he did not intend to be bound unless the contract was fully executed by all of the other parties" and "quoted with approval" an earlier case which held that if the signing party "does not intend to be bound he has to declare his intentions at that time rather than simply testifying to this effect at a later date." Skinner, 426 So.2d at 1131. The Skinner court thus held that:
[A] contract not signed by all of the parties, but otherwise valid, may be upheld against a signing party, unless the nature or wording of the contract indicates that his signature was conditioned upon all other parties signing the contract, or he can prove by parol evidence that when he signed the contract he made it known to the other parties who now seek to sustain the contract that he only intended to be bound if all parties signed it.
Id.
¶ 15. To similar effect is International Creative Management, Inc. v. D R Entertainment Co., 670 N.E.2d 1305, 1310-11 (Ind.Ct.App. 1996), cited by the Sellers:
In situations where fewer than all the proposed parties execute the document we look to the intent of the parties as determined by the language of the contract to determine who may be liable under the agreement. It should be assumed that all the parties who sign the
agreement are bound by it unless it affirmatively appears that they did not intend to be bound unless others also signed.
¶ 16. The Buyers do not dispute this authority but claim that the Second Amendment itself evidences that the signatures of all Sellers were necessary in order to bind the Buyers since signature lines were provided for each of the Sellers and since paragraph 8 of the Second Amendment provided for telecopied or PDF signatures to be used in the place of original signatures in order to expedite execution of the document. We cannot interpret these provisions as "expressly provid[ing] . . . or manifest[ing] intent" that the Buyers would not be bound unless and until all of the Sellers had signed the Second Amendment. Further, the modification and waiver provisions of the original Agreement state that no modification shall be valid unless it is "in writing and signed by the party against whom the enforcement . . . is sought." This provision clearly anticipates that a modification which is executed by fewer than all of the parties will be valid so long as it is signed by the party to be charged.
¶ 17. In this case, one Seller manifested assent to the Second Amendment on the afternoon of October 10, when he signed and returned the document to Hines. The two Sellers who did not sign the Second Amendment gave their verbal assent to Hines, who communicated that assent to the Buyers via email. This written acknowledgment of assent by Hines, as agent for the Sellers, is sufficient to show the Sellers' assent to the Second Amendment and to prevent subsequent revocation of the offer by the Buyers.
¶ 18. We acknowledge that the Second Amendment may not have been enforceable against the two non-signing Sellers at that point. The Mississippi Statute of Frauds, section 15-3-1(c) of the Mississippi Code Annotated (Rev. 2003), states that "[a]n action shall not be brought whereby to charge a defendant or other party . . . upon any contract for the sale of lands . . . unless . . . the promise or agreement upon which such action may be brought . . . shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing." (Emphasis added.) While the parties stipulated that Hines was "agent" for the Sellers, and this is, we find, sufficient for him to communicate the Seller's acceptance, the record is silent as to whether he had written authority to bind the Sellers under the statute of frauds. Therefore, if enforceability of the contract against the Sellers, rather than manifestation of their assent, were the issue before us, we would remand the case for fact finding as to whether Hines had written authority to bind the Sellers. See Affiliated Invs., Inc. v. Turner, 337 So.2d 1263 (Miss. 1976) (it was a jury question whether corporation's vice president had authority to bind corporation and satisfy statute of frauds when he, and not the president, initialed the contract).
¶ 19. However, the statute of frauds "does not make a contract void" or prevent the contract from being formed. Rather, the statute "only allows the defense to its enforcement which defense is personal to the defendant." Davis v. Stegall, 246 Miss. 593, 598, 151 So.2d 813, 815 (1963). Further, it is long established that compliance with the statute is sufficient if only "the party charged" shall have signed the agreement, whether the other party signed it or not. Marqueze v. Caldwell, 48 Miss. 23, 31 (1873) (tracking interpretation of the statute of frauds from English common law to conclude that trustee who held land in trust could compel specific performance by purchaser although trustee had not signed the agreement). In the case before us, the Second Amendment was signed by the Buyers, the parties "charged" in this action; the statute of frauds does not require that the Sellers had to sign the document in order to enforce it, much less that they had to sign it in order to manifest assent to its terms.
CONCLUSION
¶ 20. The Buyers' written offer to enter into the Second Amendment was accepted by each of the Sellers prior to the Buyers' attempt to revoke their offer; thus, the Second Amendment became enforceable against the Buyers who breached the Agreement by refusing to purchase the Heritage Building. The remedy for this breach is payment of escrow deposit as liquidated damages to the Sellers. Accordingly, we reverse the judgment of the chancery court and render judgment in favor of the Sellers, awarding the Sellers the remaining escrow deposit of $95,267.50 in liquidated damages for breach of contract pursuant to the Agreement.
¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS REVERSED AND RENDERED. JUDGMENT IN THE AMOUNT OF $95,267.50 IS ENTERED IN FAVOR OF THE APPELLANTS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
is whether the plaintiffs have alleged sufficient facts to defeat Pro Staff and/or FMC's motions for summary judgment. Because the Court is willing to consider the possibility that Pro Staff and FMC are joint employers, the Court will consider both defendants' motions for summary judgment together in this subsection, to the extent possible.
1. Exhaustion of Administrative Remedies
The parties do not dispute that ten of the twelve plaintiffs appropriately exhausted administrative remedies by filing complaints with the Equal Employment Opportunity Commission ("EEOC"). The two remaining plaintiffs, Galimore and Parejo, both allege writing "Pro Staff" on their EEOC Intake Questionnaires. The U.S. Supreme Court defers to the EEOC's regulations equating "Intake Questionnaires" to "charges." Federal Express Corp. v. Holowecki, 552 U.S. 389, 405 (2008). "Having determined that the [EEOC] acted within its authority in formulating the rule that a filing is deemed a charge if the document can reasonably be construed to request agency action and appropriate relief on the employee's behalf, the question is whether the filing here meets this test. The [EEOC] says it does, and we agree." Federal Express Corp., 552 U.S. at 405. "Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation." Id. at 406. For those reasons, this Court determines as a matter of law that all plaintiffs exhausted their administrative remedies.
2. Title VII Race and National Origin Discrimination
Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). In employment discrimination cases such as the one
sub judice, a plaintiff can prove Title VII discrimination "through direct or circumstantial evidence."
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007) (citing
Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
The Fifth Circuit has held that in cases where the plaintiff produces no direct evidence of discriminatory intent, a court must evaluate proof of circumstantial evidence using the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001)); see also, Turner, 476 F.3d at 345 (citing Rutherford v. Harris County, 197 F.3d 173, 179-80 (5th Cir. 1999)).
"Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." See, Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995)).
Under the McDonnell Douglas burden-shifting framework, the Fifth Circuit has restated the test as follows:
[A] plaintiff must first create a presumption of intentional discrimination by establishing a
prima facie case. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. The burden on the employer at this stage is one of production, not persuasion; it can involve no credibility assessment. If the employer sustains its burden, the
prima facie case is dissolved, and the burden shifts back to the plaintiff to establish either: (1) that the employer's proffered reason is not true but is instead a pretext for discrimination; or (2) that the employer's reason, while true, is not the only reason for its conduct, and another motivating factor is the plaintiff's protected characteristic.
Alvarado, 492 F.3d at 611 (citations and internal quotation marks omitted);
see also, Turner, 476 F.3d at 345 (internal citations omitted);
Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005) (internal citations omitted). "A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or `unworthy of credence.'"
Laxton, 333 F.3d at 578 (quoting
Wallace, 271 F.3d at 220;
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). "Although intermediate evidentiary burdens shift back and forth under [the
McDonnell Douglas] framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'"
Reeves,
530 U.S. at 143 (citing
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Thus, "a plaintiff can avoid summary judgment if the evidence, taken as a whole: (1) creates a fact issue as to whether each of the employer's stated reasons was not what actually motivated the employer and (2) creates a reasonable inference that race was a determinative factor in the actions of which plaintiff complains." Grimes v. Tex. Dep't of Mental Health and Mental Retardation, 102 F.3d 137, 141 (5th Cir. 1996) (citing LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 450 (5th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (overruled on other grounds)).
a. The Plaintiffs' Prima Facie Case of Race Discrimination
Under the McDonnell Douglas framework, a plaintiff must first demonstrate a prima facie case of discrimination, which, in turn, creates a rebuttable presumption of unlawful discrimination by the employer. Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (citing Burdine, 450 U.S. at 255). To establish a prima facie case of race discrimination under Title VII, a plaintiff must demonstrate that: "(1) he belongs to a protected group, (2) he was qualified for his position, (3) he suffered an adverse employment action; and (4) he was replaced with a similarly qualified person who was not a member of his protected group, or in the case of disparate treatment, that similarly situated employees were treated more favorably." Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir. 2007) (citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001)); see also, Septimus, 399 F.3d at 609.
First, the parties do not dispute that all twelve plaintiffs belong to protected minority groups. Second, the parties do not dispute that all the plaintiffs were qualified for the positions for which they were hired. Third, Bryant, Mayo, Pierre, Grice, Galimore, Parejo, Newton, Lucas and Sykes have provided evidence of adverse employment actions (considered infra). Fourth, those nine plaintiffs alleged prima facie cases of disparate treatment and averred that similarly situated employees were treated differently.
Based on a review of the depositions submitted to the Court, the Court determines that Pierre, Galimore, Parejo, Lucas and Sykes have alleged sufficient facts to establish a prima facie case of discrimination against both Pro Staff and FMC because they allege having been denied promotions and/or necessary job training offered to similarly situated non-minority employees. The Court also determines that Bryant, Mayo, Grice and Newton have alleged similar facts against FMC, thereby establishing prima facie cases of discrimination. On the other hand, McIntyre, Brown and Beatty have not alleged sufficient facts to establish a prima facie case of Title VII race discrimination against either Pro Staff or FMC.
b. The Defendants' Legitimate, Nondiscriminatory Reasons for Adverse Employment Actions
For those nine plaintiffs who have established prima facie cases of discrimination, the burden now shifts to the defendants to articulate legitimate, non-discriminatory reasons for their adverse employment actions. The defendants' burden at this stage "is one of production, not persuasion . . . [and] can involve no credibility assessment." Rios v. Rossotti, 252 F.3d 375, 379 (5th Cir. 2001) (internal quotations omitted) (citing Reeves, 530 U.S. at 142). To this end, the defendants "need only articulate a lawful reason, regardless of what its persuasiveness may or may not be." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).
Pro Staff's primary contention here is that at all times relevant to this dispute, Pierre, Galimore, Parejo, Lucas and Sykes were FMC employees, not Pro Staff employees. However, based on the joint employer doctrine, considered supra, this Court finds Pro Staff's defense inadequate. In light of the joint employer doctrine, Pro Staff has offered no substantive reason for the adverse employment actions alleged by those five plaintiffs. Thus, Pierre, Galimore, Parejo, Lucas and Sykes' charges against Pro Staff survive summary judgment scrutiny.
FMC offers various reasons why each plaintiff's discrimination claims should fail. However, Bryant, Mayo, Pierre, Grice, Galimore, Parejo, Newton, Lucas and Sykes dispute FMC's supposedly nondiscriminatory reasons for what those nine plaintiffs deem discriminatory adverse employment actions. Thus, this Court determines that issues of fact remain regarding whether FMC committed adverse employment actions against Bryant, Mayo, Pierre, Grice, Galimore, Parejo, Newton, Lucas and Sykes, particularly when considered in light of the parties' potential hostile work environment ( see, Section V.B.4, infra). Therefore, this Court finds that FMC has not produced sufficient nondiscriminatory reasons to counter those nine plaintiffs' prima facie discrimination claims.
c. The Plaintiffs' Proffered Evidence of Pretext for Race Discrimination
"[T]o rebut a defendant's showing of legitimate, nondiscriminatory reasons for its actions, `[i]t is not enough . . . to dis believe the employer.'" Warren v. City of Tupelo Mississippi, No. 08-60916, 2009 WL 1560022, * 4 (5th Cir. June 3, 2009) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original)). Rather, "the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. (emphasis in original). "The Supreme Court clarified in Reeves that, to meet this burden, `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.'" Levias v. Texas Dep't of Criminal Justice, 352 F. Supp.2d 751, 769 (S.D. Tex. 2004) (quoting Reeves, 530 U.S. at 148).
"This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability." Reeves, 530 U.S. at 148 (emphasis in original). "For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. (citing Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1291-92 (D.C. Cir. 1998) ( en banc)).
Because the Court finds that neither defendant offered sufficient legitimate, nondiscriminatory reasons for their decisions not to train or promote Bryant, Mayo, Pierre, Grice, Galimore, Parejo, Newton, Lucas and Sykes in a manner equivalent to similarly situated non-minority employees, those allegations are allowed to proceed to trial. Therefore, summary judgment is GRANTED for both defendants with respect to McIntyre, Beatty and Brown's claims of Title VII race discrimination. Summary judgment is DENIED with respect to all other Title VII race discrimination claims.
Parejo's Title VII national origin discrimination claim is subject to the same analysis as the Title VII race discrimination proffered supra, and so summary judgment, for both defendants, is DENIED on that claim.
3. Title VII Retaliation
To establish a prima facie case of retaliation, "a plaintiff must show that: (1) he engaged in activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link existed between the protected activity and the adverse employment action. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (citing Banks v. E. Baton Rouge Parish Sch. Bd. 320 F.3d 570, 575 (5th Cir. 2003)).
First, the plaintiffs here allege that they were engaged in protected Title VII employment activity when they complained and/or filed formal charges of employment discrimination in violation of Title VII. Second, the plaintiffs allege that the defendants retaliated against them by subjecting them to discriminatory employment treatment in the forms of being denied promotions, being denied requisite on-the-job guidance and being treated differently than similarly situated employees. Third, the plaintiffs allege that they experienced adverse employment actions because they complained and/or filed formal charges of discrimination in violation of Title VII.
For purposes of retaliation, an adverse employment action need not amount to an "ultimate" employment decision such as hiring, firing, or demotion, but extends to any action that "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). However, this Court finds that no plaintiff has shown that he suffered adverse employment actions as a result of filing formal charges against the defendants. While some of the plaintiffs sufficiently allege charges of Title VII discrimination ( see, Section V.B.2., supra), no plaintiff showed that any discrimination occurred specifically because he complained of discrimination or filed EEOC charges against the defendants.
The Fifth Circuit "has repeatedly held that `stray remarks' do not demonstrate [discrimination]. In order for [a discriminatory] comment to be probative of an employers discriminatory intent, it must be direct and unambiguous." EEOC v. Tex. Instruments, 100 F.3d 1173, 1181 (5th Cir. 1996) (internal citations omitted) (with respect to age discrimination). In the present case, the plaintiffs' allegations of racist comments and graffiti in the workplace, even if true, do not amount to legally actionable adverse employment actions under a Title VII retaliation analysis. While those alleged remarks and graffiti may be in poor taste, and while those alleged remarks and graffiti are relevant to a Title VII hostile work environment analysis ( see, Section II.B.4., infra), they do not establish a Title VII retaliation cause of action.
Accordingly, summary judgment is GRANTED for both defendants on all plaintiffs' Title VII retaliation claims.
4. Title VII Hostile Work Environment
To establish a prima facie case of Title VII hostile work environment, an employee must show that: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on the employee's membership in the protected group; (4) the harassment affected a term, condition, or privilege of his employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See, Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 353 (5th Cir. 2001).
First, the plaintiffs here belong to protected minority groups. Second, they allege being subjected to unwelcome harassment in the form of nooses, racial slurs/graffiti and disparate treatment. Third, they allege that this harassment was based on their membership in protected groups. Fourth, they allege that this harassment affected their employment in that they were denied promotions and training, that they felt discriminated against, and that this discrimination affected their ability to do their jobs. Fifth, they allege that the defendants had actual or constructive knowledge of the harassment but failed to take sufficient remedial action.
Certain plaintiffs complained to FMC's human resources department, making FMC aware of allegedly discriminatory action. As for Pro Staff's knowledge of potential discrimination, certain of Pro Staff's employees exclusively attended to serving FMC's staffing needs from the Pro Staff office located within FMC's facility. Based on Pro Staff and FMC's degree of interrelation, Pro Staff could have had at least constructive knowledge of employment discrimination on FMC's premises. When harassment is pervasive, courts may impute constructive notice to an employer. Williamson v. City of Houston, 148 F.3d 462, 465 (5th Cir. 1998). A defendant "may also be liable if it had constructive knowledge, i.e., if through the exercise of reasonable care [an employer] should have known what was going on but failed to address it. Whether an employer may be charged with constructive knowledge is, within certain legal constraints, a question of fact." Sharp v. City of Houston, 164 F.3d 923, 930 (5th Cir. 1999) (emphasis in original).
An employer violates Title VII when the "workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris, 510 U.S. at 21 (quoting Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67 (1986)). The Fifth Circuit and other courts have long recognized that racially degrading comments and actions can create or contribute to a hostile work environment even when they are not specifically directed at an individual plaintiff. Waltman v. Int'l Paper Co., 875 F.2d 468, 477-78 (5th Cir. 1989); see also, Hawkins v. Anheuser-Busch, 517 F.3d 321 (6th Cir. 2008).
"[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" Oncale v. Sundower Offshore Servs., 523 U.S. 75, 81 (1998), (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Under the "totality of the circumstances" test, "the issue is not whether each incident of harassment standing alone is sufficient to sustain the cause of action in a hostile environment, but whether — taken together — the reported incidents make out such a case." Jackson v. Quanex Corporation. 191 F.3d 647, 659 (6th Cir. 1999). Further, to survive summary judgment, the harassment need only be "severe or pervasive." Harville v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434-35 (5th Cir. 2005) (bolding omitted; italics in original).
In the present case, even if not all of the plaintiffs were subject to severe racial harassment, they each allege being subjected to some level of racial harassment in an environment of pervasive racial discrimination. It is for the trier of fact to separate the wheat from the chaff, and thus to determine whether any of the plaintiffs' claims, considered in light of the totality of the circumstances, are actionable. Considering the totality of the circumstances as alleged by the plaintiffs, a reasonable trier of fact could determine that racist sentiments and actions pervaded the plaintiffs' workplace, thereby creating a hostile work environment.
Accordingly, construing all inferences in the plaintiffs' favor at the summary judgment stage of these proceedings, the plaintiffs should be allowed to progress to trial. Thus, this Court DENIES the defendants' motions for summary judgment with respect to all plaintiffs' Title VII hostile work environment claims.
5. TEXAS LABOR CODE §§ 21.051-.052 Race Discrimination
The Texas Labor Code ("THRCA") states, in pertinent part:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or (2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
TEXAS LABOR CODE §§ 21.051. The following provision deals with employment agencies in particular, stating that the agency acts unlawfully if it:
(1) fails or refuses to refer for employment or discriminates in any other manner against an individual because of race, color, disability, religion, sex, national origin, or age; or
(2) classifies or refers an individual for employment on the basis of race, color, disability, religion, sex, national origin, or age.
TEXAS LABOR CODE § 21.052.
The THRCA is modeled after Title VII. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.-El Paso, 1997, writ denied). Accordingly, courts are encouraged to look to federal cases to help interpret it. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). Thus, courts also analyze TCHRA claims under the same framework as Title VII claims. Lohn v. Morgan Stanley DW, Inc., 652 F. Supp. 2d 812, 823 (S.D. Tex. 2009). Accordingly, the Court's Title VII analysis, ( see, Section V.B.2., supra), applies to the plaintiffs' supplemental state law claims. Therefore, summary judgment is GRANTED for both defendants with respect to McIntyre, Beatty and Brown's claims of THRCA race discrimination. Summary judgment is DENIED with respect to all other THCRA race discrimination claims.
6. The Defendants' Claims of Remediation
The defendants have provided insufficient proof of remediation at the summary judgment phase of the proceeding. The elements of the remediation defense are:
(a) [T]hat the employer exercised reasonable care to prevent and correct promptly any [racially] harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any corrective opportunities provided by the employer or to avoid harm otherwise.
Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (overruled on other grounds) (citing
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998);
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). Because the parties reasonably disagree about whether FMC and Pro Staff's remediation efforts were sufficient, the issue should be presented to a trier of fact. What constitutes prompt remedial action "depends on the facts of the case."
Skidmore at 615. Further, "[t]he moving party bears a heavier burden when seeking summary judgment on a claim or defense on which it would bear the burden of proof at trial."
Cooper v. Wal-Mart Transportation, LLC., 662 F. Supp. 2d 757, 772 (S.D. Tex. 2009) (citing
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Therefore, the defendants are not entitled to summary judgment on any claim as a result of a remediation defense.
VI. CONCLUSION
Based on the foregoing analysis and discussion, the defendants' motions for summary judgment are hereby GRANTED in part and DENIED in part. Specifically, summary judgment is GRANTED for the defendants on McIntyre, Brown and Beatty's claims of Title VII and THRCA race discrimination, and on all plaintiffs' retaliation claims. Summary judgment is DENIED on all other Title VII and THRCA race discrimination claims, on Parejo's Title VII national origin discrimination claim, and on all plaintiffs' Title VII hostile work environment claims.
It is so ORDERED.