W. ALLEN PEPPER, JR., District Judge.
Presently before the Court is the defendant's motion for summary judgment. Finding that the motion is well taken, the Court shall grant it and dismiss this action.
FACTUAL BACKGROUND
Plaintiff Darron Banks, an African American, began working at S N Sprayer on January 18, 1996, as a fabricator in the research and development department. On February 16, 1998, he was transferred to the aluminum welding division. However, a white male, William Layton Griffin, was allowed to remain in research and development. S N Sprayer maintains that the real reason for this transfer was because of a slow down in research and development, as well as the need to address other staffing needs throughout the plant. S N Sprayer also maintains that Banks was reassigned to the aluminum welding area because of a shortage of aluminum welders in the plant, and Banks was a skilled aluminum worker. The company claims that Griffin, the white male retained in the fabrication shop, is not as qualified as an aluminum welder as is Banks; thus, he was not transferred.
On March 19, 1998, Banks filed a charge with the Equal Employment Opportunity Commission (hereinafter "EEOC") alleging that he was forced to transfer from his position as a fabricator to a welder in the aluminum department because of his race. He also alleged that a less qualified and less experienced white male was allowed to remain in the engineering department. On June 30, 1998, the EEOC issued its determination that it was unable to establish any discrimination.
By the middle of July, 1998, S N Sprayer was notified on two separate occasions of leaking aluminum floats on new aerators, which Banks assisted in manufacturing in the aluminum welding division. S N claims that it is highly irregular to receive two complaints within such a short period of time, because for the thirty years that S N Sprayer has been manufacturing aluminum tanks, and for the ten years it has been manufacturing aeration floats, it has never received more than three to five reported leaks per year. Banks was then transferred from the aluminum welding division on July 24, 1998, to the steel welding division, which resulted in a reduction of pay by approximately $3.00 an hour. S N Sprayer claims that the reason for this transfer was because the poor conditions of the tanks that were manufactured by Banks and his co-worker, Earl T. Smith. However, Banks asserts that the real reason was retaliation for filing a complaint with the EEOC.
On January 4, 1999, Banks filed a second EEOC complaint alleging that he had been transferred to the lower paying job in retaliation for filing his original complaint with the EEOC. Further, Banks alleges that S N Sprayer also retaliated against him in that he was not paid his vacation and sick pay at the proper rate, and his vacation pay was cut on July 25, 1998, two days before he went on vacation.
Darron Banks has filed a lawsuit against S N Sprayer alleging racial discrimination under Title VII and § 1981, retaliation, and intentional infliction of emotional distress. S N Sprayer has filed a motion for summary judgment.
STANDARD OF REVIEW
Summary judgment should be entered only if ". . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The party seeking summary judgment has the initial burden of demonstrating through the evidentiary materials that there is no actual dispute as to any material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In determining whether this burden has been met, the court should view the evidence introduced and all factual inferences from that evidence in the light most favorable to the party opposing the motion. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra, at 322.
The summary judgment procedure does not authorize trial by affidavit. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., supra, at 255. Accordingly, a court may not decide any factual issues found in the record on motion for summary judgment, but if such material issues are present, the court must deny the motion and proceed to trial.
Impossible Elec. Tech. v. Wackenhut Protection Systems, 669 F.2d 1026, 1031 (5 Cir. 1982); Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5 Cir. 1981); Lighting Fixture Electric Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5 Cir. 1969). Under the provisions of Rule 56(e), Federal Rules of Civil Procedure, a party against whom a motion for summary judgment is made may not merely rest upon his pleadings, but must, by affidavit, or other materials as provided in Rule 56, inform the court of specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, supra, at 324. The facts stated in uncontradicted affidavits or other evidentiary materials must be accepted as true. However, the moving party must still show that he is entitled to judgment on those facts as a matter of law, and if he fails to discharge that burden he is not entitled to judgment, notwithstanding the apparent absence of a factual issue. 6-Pt. 2, Moore, Federal Practice (2d Ed.), ¶ 56.22[2], p. 56-777.
LEGAL ANALYSIS
S N Sprayer attempts to argue that certain claims raised in Banks' complaint are outside the "scope" of his complaint filed with the EEOC; thus, this Court should focus only on those claims alleged in the EEOC complaint. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5 th Cir. 1970); Evans v. U.S. Pipe and Foundry Co., 696 F.2d 925, 929 (5 th Cir. 1983). However, since it is not necessary to file a complaint with the EEOC to proceed under § 1981, this Court will consider all the claims alleged in Banks' complaint. Caldwell v. National Brewing Company, 443 F.2d 1044, 1045 (5 th Cir. 1971), Alpha Portland Cement Co. v. Reese, 507 F.2d 607, 609 (5 th Cir. 1975).
The Original Claim of Discrimination
Banks claims that S N Sprayer unlawfully discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981. To succeed on a claim of intentional discrimination under Title VII or § 1981, a plaintiff must first prove a prima facie case of discrimination. In order to establish his prima facie case of discrimination, he must prove: (1) that he was a member of a protected class; (2) that he was qualified for the position for which his employer was seeking applicants; (3) that despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of his qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once the plaintiff establishes a prima facie case of discrimination a presumption of discrimination arises, which the defendant must rebut by articulating a legitimate, non-discriminatory reason for the challenged government action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The plaintiff then must prove by a preponderance of the evidence that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was the real reason. St. Mary's Honor Center v. Hicks, 509 U.S. at 510-511.
"The inquiry into intentional discrimination is essentially the same for actions brought under § 1981 [as actions brought under Tittle VII]." Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Briggs v. Anderson, 796 F.2d 1009, 1021 (8 th Cir. 1986).
1. Prima Facie Case of Discrimination
While employed in the research and development department, Banks worked with three other employees: William Layton Griffin (a white male), Wilton Holmes (a black male), and Walter Hardy (a black male who was a part-time employee). After February 16, 1998, Banks was transferred to the aluminum welding department, Hardy was transferred to the steel welding department, and Holmes was allowed to remain on an as needed basis in the research and development division. Griffin remained employed full time in research and development. In his complaint, Banks claims that he is better qualified than Griffin; therefore, if anyone should have been allowed to remain in the research and development division, it should have been Banks. Banks claims that when Griffin began working in the division, Banks was responsible for training him and showing him how to perform certain tasks necessary for the job. In addition, Banks claims that Griffin could not perform certain duties of the job, such as braise welding.
Defendant's Legitimate, Non-Discriminatory Reason
S N Sprayer maintains that Banks' transfer to the aluminum welding division was not a result of racial discrimination, but rather it was due to a slow down in research and development. According to Dennis Welch, head of the R D division, the employees in the R D division needed to be skilled in all phases of manufacturing, not just welding. Although welding was part of the job, employees had to understand how to actually produce products from reading shop prints or blueprints. Employees in the R D division had to be able to work as a team, with little supervision. When the demands began to slow down in that division, management looked to see what R D employees could be utilized elsewhere in the plant. Since Banks was a skilled aluminum welder, probably the "best they had in the plant," Banks was a natural choice to be transferred to the aluminum welding division, a division that desperately needed a supervisory employee. He had previously been employed in the aluminum welding division of S N Sprayer in 1994, and management knew that he could do the job now. Griffin, the white male retained in the research and development division, was not qualified as an aluminum welder; thus, he was not transferred. Furthermore, according to Dennis Welch, Griffin did not need as much supervision as Banks in the R D division, so management allowed him to remain in the division. As a result of his transfer, Banks did not experience a pay cut or a loss in hours.
Pretext
Banks has not convinced this Court that S N Sprayer's proffered reason for the transfer was really a pretext for racial discrimination. As such, the Court holds that Banks has failed to met his burden of establishing racial discrimination by S N Sprayer. S N was experiencing a slow-down in its research and development division. Furthermore, Banks was known to be one of the best welders in the plant. Logically, if fewer employees were needed in the research and development division, and there was a need for a qualified welder in the aluminum welding division, Banks would be the top choice to be transferred. He had all the skills and experience necessary for the job, unlike Griffin.
No evidence before this Court indicates that S N Sprayer transferred Banks to aluminum welding because of his race. Since no genuine issue of material fact regarding Banks' claim of discrimination exists, S N Sprayer is entitled to summary judgment on this issue.
The Retaliation Claim
A plaintiff, to prove his retaliation claim, must show: (1) the employee has engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a casual connection exists between that protected activity and the adverse employment action. Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5 th Cir. 1996); Long v. Eastfield College, 88 F.3d 300, 304 (5 th Cir. 1996); Dollis v. Rubin, 77 F.3d 777,781 (5 th Cir. 1995). An employee has engaged in activity protected by Title VII if he has either (1) opposed any unlawful employment practice under Title VII; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); Grimes, 102 F.3d at 140; Long, 88 F.3d at 304. To determine whether an "adverse employment decision" has occurred:
our court has stated that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin,
77 F.3d 777, 781-782 (5
th Cir. 1995). "Ultimate employment decisions" include acts "such as hiring, granting leave, discharging, promoting, and compensating." Id. at 782 (citing Page v. Bolger,
645 F.2d 227, 333 (4
th Cir.) cert. denied,
454 U.S. 892,
102 S.Ct. 388,
70 L.Ed.2d 206 (1981)).
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5 th Cir. 1997).
Once the plaintiff establishes a prima facie case of retaliation, "the burden shifts to the employer to provide a legitimate, non-retaliatory reason for the adverse employment action." Chaney v. New Orleans Public Facility Management, Inc., 179 F.3d 164, 167 (5 th Cir. 1999). If the defendant comes forward with a "permissible rationale, the plaintiff then shoulders the ultimate burden of proving that the employer's proffered rationale was pretextual and that engaging in the protected activity was the but-for cause of the adverse employment action (i.e., the employer actually retaliated against the employee.)" Id.
Banks has met the first prong of his prima facie case of retaliation because filing his March 19, 1998, complaint with the EEOC is protected by Title VII. This Court must now focus its attention on the final two elements of establishing a prima facie case of retaliation; i.e., whether Banks suffered from an adverse employment decision, and whether a causal connection exists between his protected activity and the adverse employment action.
When Banks was transferred out of the aluminum welding division into the steel welding division, his pay was reduced by approximately $3.00 an hour. Furthermore, his vacation pay rate and sick pay rate were also reduced. Dollis mandates that "ultimate employment decisions" include acts "such as . . . promoting and compensating." Dollis at 781-782. Since this Court finds that his transfer and subsequent reduction in pay is directly related his promotion or compensation, Banks has met the second requirement necessary to establish a prima facie case of retaliation.
"Close timing between an employee's protected activity and an adverse action against him may provide the `causal connection' required to make out a prima facie case of retaliation." Swanson v. General Services Admin., 110 F.3d 1180, 1188 (5 th Cir. 1997) (citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5 th Cir. 1993)). The EEOC notified Banks on June 30, 1998, that it was unable to conclude whether or not S N Sprayer violated the statutes. Notice of the EEOC's finding was given to S N Sprayer. Less than one month later, on July 24, 1998, Banks was transferred to the steel welding division. However, it is important to note that even though the timing of the personnel action in relation to the protected activity may be indirect proof of casual connection, where the employer offers a legitimate, nondiscriminatory explanation for the adverse action, the burden is on the employee to show that the explanation is merely a pretext for discrimination. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5 th Cir. 1991); Swanson v. General Services Administration, 110 F.3d 1180, 1188 (5 th Cir. 1997).
S N Sprayer argues that it had a legitimate, non-discriminatory reason for transferring Banks from the aluminum welding division to the steel welding division. S N Sprayer maintains that the aluminum tanks welded and assembled by Banks and his co-worker, Mr. Smith, were so defective that Banks could not be trusted to work in the aluminum welding division without direct supervision. Prior to this transfer, Kirk Kimes, the plant manager, conducted a preliminary investigation of the tanks that were manufactured by Banks and Smith. Kimes concluded that the tanks were not checked for leaks after they were welded. After an initial examination of the tanks, S N Sprayer concluded that the welding was far below standard.
S N Sprayer felt it was necessary to transfer Banks from the aluminum welding division to the steel welding division of the plant. Immediately after Banks was transferred to steel welding, S N Sprayer inspected the entire inventory of the tanks produced by Banks and Smith. Ninety-three (93) out of ninety-seven (97) 22" tanks had leaks. Five (5) of seventeen (17) 25" tanks had leaks. Over 75% of the tanks inspected had multiple leaks. Apparently, many of these defects could be seen by a visual inspection of the tanks.
Banks claims that the non-discriminatory reason given for his transfer is merely pretext for the racial discrimination. According to Banks, S N Sprayer advertised for an aluminum welder in The Greenwood Commonwealth on June 1 and June 2, 1998. Apparently, Banks is of the opinion that S N Sprayer was looking to replace him even before they discovered the poor quality of the tanks that were being produced. However, according to Larry Alderman, advertising director for the newspaper, the ad that ran in The Greenwood Commonwealth on June 1 and June 2 was not specifically for an aluminum welder. The aluminum welder advertisement was published from July 24 to July 30, 1998, after Banks had been transferred from the aluminum welding division.
Furthermore, when the leaks were discovered, Banks was questioned about the quality of his work, but he responded that it was Smith's duty, not his, to check for leaks. He claims that his job responsibilities during his 1994 employment with the aluminum welding division were slightly different than his responsibilities after he was transferred to the division in 1998. For instance, in 1994, Banks was responsible for welding the seams of the tanks and checking for potential leaks. However, Banks claims that after the 1998 transfer to the aluminum welding division, it was Earl Smith's responsibility to weld the seams and check for leaks. In addition, Banks asserts that it was strictly Smith's responsibility to repair all of the tanks produced, even the tanks that Banks himself welded. Rodney Norris, president of S N Sprayer, admitted that Smith was responsible for checking the tanks. However, in his deposition, he also claimed that Smith may not have been at work every single day. Arguably, Banks had to make tanks by himself on the days that Smith was not there. On these days, Norris claims that Banks should have taken the responsibility to check for leaks.
This Court finds that the decision to transfer Banks to steel welding was based on the poor quality of work produced by Banks and his co-worker, Earl Smith. No evidence indicates that S N Sprayer transferred Banks to steel welding in retaliation for filing his EEOC complaint; thus, S N Sprayer is entitled to summary judgment on the issue.
The Court notes that Earl Smith was fired from S N Sprayer because of his poor workmanship.
Intentional Infliction of Emotional Distress
Banks alleges that S N Sprayer's actions toward him constitute intentional and/or negligent infliction of emotional distress. In Mississippi, a plaintiff may recover for mental anguish, even when there is no presence of a physical injury. "Where there is something about the defendant's conduct which evokes outrage or revulsion, done intentionally — or even unintentionally yet the results being reasonably foreseeable — Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury." Sears, Roebuck Co. v. Devers, 405 So.2d 898, 902 (Miss. 1981). "If the conduct is not malicious, intentional, or outrageous, there must be some sort of demonstrative harm, and said harm must have been reasonably foreseeable to the defendant." Morrison v. Means, 680 So.2d 803, 806 (Miss. 1996).
Banks claims that he has established a sufficient showing of intentional and outrageous conduct by his employer. Aside from being transferred to a job that cut his pay by $3.00 an hour, he claims that he received the "silent treatment" from his supervisors and managers. Further, he was denied the opportunity to conduct inventory away from the plant. His car was the only car vandalized in the company parking lot. Lastly, management shut the air conditioning vents in the front office bathroom, which Banks claims is an attempt to prevent the mostly black workforce from using the same bathroom that management uses.
Sheila Banks, the wife of the plaintiff, filed an affidavit in which she states that she has witnessed first hand the effects of the discriminatory actions taken against her husband. For instance, she claims that her husband no longer takes on a leadership role in his church, he has become distant from her, his children, and his friends, and he has lost his appetite and cannot sleep at night.
S N Sprayer maintains that Banks is exaggerating the treatment he received. For instance, Dennis Welch maintains that Banks quit talking to him, not the other way around. Also, Rodney Norris acknowledges that he knew that Banks' car was broken into, yet he points out that car windows were also broken in the parking lot of another manufacturer just down the street from S N Sprayer. The company refused Banks' request to pay for the damages to his car just as it refused to pay for damages to a white employee's truck also damaged in the company parking lot. With regard to the claim that the defendant refused to allow Banks to conduct inventory, the company maintains that Banks was in no way singled out. Rather, the company has a policy of only allowing employees finished with their assignments to conduct inventory. If Banks was not finished with his work, then he would not have been allowed to conduct inventory. Finally, the company claims that the vent was closed in the front bathroom in an attempt to regulate the air-conditioning in the front office and to keep employees from malingering in the air-conditioned restroom.
S N Sprayer maintains that even if true, the defendant's actions towards Banks do not reach the level of malicious, intentional, willful, indifferent, or reckless conduct necessary to maintain an intentional infliction of emotional distress claim in Mississippi. Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 659 (Miss. 1995); Smith v. Malouf, 722 So.2d 490, 497 (Miss. 1998). Furthermore, S N Sprayer maintains that Banks has failed to show any demonstrative harm which the company could reasonably foresee. Morrison v. Means, 680 So.2d 803, 806 (Miss. 1996). The Court agrees. Banks has failed to establish that S N Sprayer acted outrageously, maliciously, or intentionally, or that it was reasonably foreseeable that Banks would suffer some sort of demonstrative harm as a result of the company's conduct. Since no genuine issue of material fact regarding Banks' intentional infliction of emotional distress claim exists, S N Sprayer is entitled to summary judgment on the issue.
Denial of Front Office/Management Position
In his amended complaint, Banks claims that he applied for a position as a computer assisted design (CAD) operator, but that a less qualified white woman, Patricia Woods, was hired instead. The job as a CAD operator included laying out shop drawings on a computer, which is a task that Banks claims he preformed with his previous employer, GATCO.
In an attempt to prove that he was not hired to this "front office" position because he was black, Banks points out that out of the ten office personnel employees working at S N Sprayer, none are black. In fact, throughout the company's history, only one black individual has been employed in the management office. However, according to the president of the company, blacks were rarely hired in these front office positions because very few blacks had actually applied for or shown an interest in these positions.
S N Sprayer maintains that Woods was hired as the CAD operator because she had excellent qualifications which were known to company management when she applied for the job. She had obtained a two-year degree from Holmes Community College in drafting and design, and she had been a CAD operator for three years at a manufacturing plant. Banks, on the other hand, had less knowledge of computer drafting than did Woods. While he did have previous limited on-the-job training in this field with his previous employer, he had no formal education in computer drafting and design. Furthermore, his limited experience was totally unknown to senior management at S N Sprayer because Banks did not include this information on his job application. In addition, Woods had already been offered the position as CAD operator before Banks ever expressed an interest in the job.
The Court finds that Banks was not denied the front office/management position because he was black. Therefore, S N Sprayer is entitled to summary judgment on this issue.
S N Sprayer's Point System
Banks also alleges in his amended complaint that the point system used by S N Sprayer discriminated against him because of his race. However, he offers no further facts to support this claim. In his deposition, Banks explains the point system implemented by the company. Employees would begin every year with twelve points. If the employee misses one day, then he is left with eleven points; if he missed two days, he would be left with ten points, and so on. When an employee has six points left, management will give that employee an oral warning. If that employee has three points left, then he will get "written up." Once an employee reaches zero points, he is terminated. Throughout, however, employees have the opportunity to regain lost points by good attendance.
Banks alleges that the point system was manipulated in such a way that it discriminated against him because he was black. He acknowledges that the point system was not used in the company's promotion process. However, he states in his deposition that he was written up for his low number of points, which was in accordance with S N Sprayer's policy. But he claims that the men that wrote him up for his point number had already run out of their points for the year, yet they were not disciplined. Yet Banks has not substantiated this allegation at all. In fact, Banks even acknowledges that a white employee, Ron Walls, was also disciplined under the point system: he was terminated because he reached the zero point level.
Therefore, this Court finds no evidence before it which would indicate that the point system utilized by S N Sprayer was racially discriminatory. As such, Banks' claim regarding S N Sprayer's point system should be dismissed.
CONCLUSION
Based on the foregoing, defendant's motion for summary judgment should be GRANTED. An order will issue accordingly.
THIS, the _____ day of February, 2000.