Filed: Jun. 28, 1995
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals, Fifth Circuit. No. 94-10825. Robert MAYBERRY, Plaintiff-Appellant, v. VOUGHT AIRCRAFT COMPANY, Defendant-Appellee. June 28, 1995. Appeal from the United States District Court for the Northern District of Texas. Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: Robert Mayberry challenges an adverse summary judgment on his employment discrimination and retaliation claims. Because the summary judgment record fails to create
Summary: United States Court of Appeals, Fifth Circuit. No. 94-10825. Robert MAYBERRY, Plaintiff-Appellant, v. VOUGHT AIRCRAFT COMPANY, Defendant-Appellee. June 28, 1995. Appeal from the United States District Court for the Northern District of Texas. Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: Robert Mayberry challenges an adverse summary judgment on his employment discrimination and retaliation claims. Because the summary judgment record fails to create a..
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United States Court of Appeals,
Fifth Circuit.
No. 94-10825.
Robert MAYBERRY, Plaintiff-Appellant,
v.
VOUGHT AIRCRAFT COMPANY, Defendant-Appellee.
June 28, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Robert Mayberry challenges an adverse summary judgment on his
employment discrimination and retaliation claims. Because the
summary judgment record fails to create a genuine issue of material
fact (restated, would not permit a reasonable juror to find for
Mayberry on either claim), we AFFIRM.
I.
Mayberry, who is black, has been employed as a machine
operator by Vought Aircraft Company since 1979. Vought uses a
progressive discipline program consisting of a verbal warning,
written warning, suspension, and termination. Only disciplinary
actions occurring within the prior year can be considered in
imposing progressive discipline.
Mayberry was disciplined three times in 1991 for poor
workmanship in violation of the Vought Code of Conduct, receiving
a verbal warning in March, two written warnings in June, and a
1
three-day suspension in December.1 He filed union grievances for
each disciplinary action, resulting, inter alia, in the agreement
that, if he had no further problems with his work until December 2,
1992, he would be reimbursed for his 1991 suspension.2 On October
26, 1992, $8,000 in parts were "scrapped" (damaged) at Mayberry's
work station. He blamed the damage on a machine malfunction, but
Vought determined that he was at least partially at fault.
Although Vought could have terminated Mayberry (because his
suspension was less than a year old), it elected instead to suspend
him, in view of his seniority and the fact that it could not
determine the degree to which the machine may have been responsible
for the damage. Mayberry was suspended for 13 days.
Mayberry filed this action in September 1993, claiming that
his suspension was on account of his race, and/or in retaliation
for prior discrimination claims brought against Vought and his
participation in demonstrations against Vought for its alleged
discriminatory practices. On Vought's motion for summary judgment,
the district court held that Mayberry failed to establish a prima
facie case for retaliation, and, assuming a prima facie case of
discrimination, that Mayberry was unable to overcome Vought's
defense that the suspension resulted from its honest belief that
1
Vought's Code of Conduct states, in relevant part:
"Defective work resulting from inattention to the job, negligence
or carelessness may make it necessary for the company to take
corrective action. Deliberate production of defective work may
result in discharge".
2
Mayberry also filed discrimination charges with the Equal
Employment Opportunity Commission, none of which resulted in a
finding of discrimination.
2
Mayberry had violated the work-rule. Accordingly, summary judgment
was entered for Vought.
II.
Mayberry contests the dismissal of both claims. We review
summary judgments de novo, to determine, inter alia, whether any
genuine issue of material fact exists. Calpetco 1981 v. Marshall
Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993). For that
aspect, we draw all reasonable inferences in favor of the
nonmovant, and ask whether the evidence in the summary judgment
record is such that no reasonable juror could find in favor of the
nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249,
106
S. Ct. 2505, 2510-11,
91 L. Ed. 2d 202 (1986).
The analysis for Title VII discrimination claims is
well-known. See e.g., St. Mary's Honor Ctr. v. Hicks, --- U.S. ---
-, 113 S. Ct. 2742,
125 L. Ed. 2d 407 (1993); Texas Dep't of
Community Affairs v. Burdine,
450 U.S. 248,
101 S. Ct. 1089,
67
L. Ed. 2d 207 (1981); McDonnell-Douglas Corp. v. Green,
411 U.S.
792,
93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). The plaintiff must
establish a prima facie case that the defendant made an employment
decision that was motivated by a protected factor. Once
established, the defendant bears the burden of producing evidence
that its employment decision was based on a legitimate
nondiscriminatory reason. The burden then shifts back to the
plaintiff to prove that the defendant's proffered reasons were a
pretext for discrimination. But, if the defendant has offered a
legitimate nondiscriminatory reason for its action, the presumption
3
of discrimination derived from the plaintiff's prima facie case
"simply drops out of the picture", Hicks, --- U.S. at ----, 113
S. Ct. at 2749, and "the ultimate question [is] discrimination vel
non ".
Id. at ----, 113 S.Ct. at 2753 (citation omitted).
A.
In work-rule violation cases, a Title VII plaintiff may
establish a prima facie case by showing "either that he did not
violate the rule or that, if he did, white employees who engaged in
similar acts were not punished similarly". Green v. Armstrong
Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied,
449 U.S.
879,
101 S. Ct. 227,
66 L. Ed. 2d 102 (1980). Mayberry travels both
avenues, claiming that he was not responsible for the damage, and
that, even assuming he was, similarly situated white employees have
not been disciplined.
1.
For showing that white employees were not disciplined,
Mayberry's evidence consists of reports from Vought's Accumulated
Scrappage Material record (ASM), read together with Vought's list
of violations of its Code of Conduct. The ASMs, which record each
instance when a part is scrapped, reveal such instances (for white
and black employees) that have no corresponding entry on Vought's
violations list. Significantly, the ASMs often include notations
such as "poor workmanship" or "operator error", apparently to
assign cause for the scrappage. Based on this evidence, Mayberry
urges that white employees were treated differently from him.
To establish a prima facie case in this manner, Mayberry must
4
show that white employees were treated differently under
circumstances "nearly identical" to his. Little v. Republic Ref.
Co., 924 F.2d 93, 97 (5th Cir.1991); Smith v. Wal-Mart Stores,
891
F.2d 1177, 1180 (5th Cir.1990); Davin v. Delta Air Lines, Inc.,
678 F.2d 567, 570-71 (5th Cir. Unit B 1982). In this regard,
Mayberry has offered evidence that white (and black) employees have
scrapped parts due, apparently, to operator error or poor
workmanship, and were not disciplined. However, as Vought
explained, and as Mayberry's own evidence confirms, it does not
even conduct a disciplinary investigation, much less take
disciplinary action, each time a part is scrapped. The decision to
investigate is based on two factors: the history of poor work
performance of the employee, and the cost of the damaged parts.
Mayberry fit both factors; he had several recent instances of poor
work performance, and the amount of damage was $8,000.
For whether a white employee in "nearly identical"
circumstances has received treatment different from Mayberry,
reference to the ASMs is of little value. Vought notes that they
are not intended, and are not used, for disciplinary purposes.
Rather, they serve only to maintain a record of each part that is
scrapped, and to provide authorization for the part's replacement.
Most importantly, they make no reference to the work history of the
employee or the amount of damage. Accordingly, they are not
evidence that white employees in "nearly identical" circumstances
5
have been treated differently.3 To the contrary, Mayberry's own
evidence reveals that, of the 14 other employees in his division
who were disciplined for their workmanship between 1991 and 1994,
none were black—12 were white and two were Hispanic. In sum,
Mayberry's evidence could not support a reasonable juror's finding
that he was treated differently from white employees. As such, he
fails to make a prima facie case on this basis.
2.
On the other hand, a prima facie case may be established by
showing that the plaintiff did not violate the work-rule for which
he was disciplined. Green, 612 F.2d at 968. We agree with the
district court that Mayberry created a fact question on whether he
was responsible for the damage. Although the conclusion from
Vought's investigation was that Mayberry was at least partially at
fault, Vought admitted that "it could have been possible to have
had a software problem". Furthermore, Mayberry offered evidence
that his machine had malfunctioned in the past. This, combined
with Mayberry's affidavit statement that he was not at fault,
creates a reasonable question of whether Mayberry violated the
work-rule.
Vought responds to Mayberry's prima facie case by insisting
that there was no racial motivation in its decision to suspend
3
The ASMs may well have been a starting point from which to
build a case that would withstand summary judgment. Mayberry
could have gained information, through discovery, on the
individuals listed in the ASMs, which may well have substantiated
his claim of disparate treatment. Without more, however, the
ASMs are not helpful.
6
Mayberry; that the decision was based solely on its conclusion,
following an investigation, that Mayberry was at least partially at
fault. With this, Vought has discharged its burden of production,4
and the burden shifted to Mayberry to prove that Vought's proffered
reason is merely a pretext for discrimination. Hicks, --- U.S. at
----, 113 S. Ct. at 2749.
Mayberry attempts to overcome Vought's nondiscriminatory
reason essentially by reasserting his prima facie evidence. As
discussed below, we conclude that, as a matter of law, Mayberry has
failed to rebut that nondiscriminatory reason.
The material fact issue on whether Mayberry was at fault
exists only because Vought admitted that, although it found no
evidence of machine error, it could not be certain that some sort
of machine malfunction did not occur.5 Nonetheless, in Vought's
judgment it was clear enough that Mayberry was partially at fault.
And, because it was not certain that Mayberry was completely at
fault, Vought elected only to suspend him, whereas it could have
terminated him. Even so, Vought's uncertainty, together with
Mayberry's adamant denial, allows for a reasonable question of
4
Mayberry appears to suggest that he need not rebut Vought's
nondiscriminatory reason because a fact issue exists on whether
he violated the work-rule. Vought's burden, however, is only one
of production. Hicks, --- U.S. at ----, 113 S. Ct. at 2749. It
"need not persuade the court that it was actually motivated by
the proffered reasons".
Id. (quoting Burdine, 450 U.S. at
254,
101 S. Ct. at 1094).
5
The data read-out on the machine, which would apparently
have indicated if there had been machine error, "had been
cleared". Mayberry denied having cleared the machine, and
insisted that it lost power and cleared itself.
7
fact. Mayberry seizes on this fact question as the basis for his
contention that Vought's nondiscriminatory reason for the
suspension is not credible.6 Mayberry misses the mark. The
question is not whether an employer made an erroneous decision; it
is whether the decision was made with discriminatory motive.
[E]ven an incorrect belief that an employee's performance is
inadequate constitutes a legitimate, nondiscriminatory reason.
We do not try in court the validity of good faith beliefs as
to an employee's competence. Motive is the issue.... [A]
dispute in the evidence concerning ... job performance does
not provide a sufficient basis for a reasonable factfinder to
infer that [the] proffered justification is unworthy of
credence.
Little, 924 F.2d at 97. See also Sherrod v. Sears Roebuck & Co.,
785 F.2d 1312 (5th Cir.1986); Turner v. Texas Instruments, Inc.,
555 F.2d 1251, 1256 (5th Cir.1977); Jones v. Gerwens,
874 F.2d
1534, 1540 (11th Cir.1989).
Attempting to offer more than the mere dispute over whether
Vought properly found him at fault, Mayberry resorts to the
evidence we rejected in the context of his prima facie case: that
white employees are treated differently. Needless to say,
Mayberry's evidence of disparate treatment is no more helpful or
persuasive in the context of rebutting Vought's nondiscriminatory
explanation. As noted, Mayberry has not offered evidence
6
In their briefs, the parties argued at length over whether
a plaintiff may rebut a defendant's nondiscriminatory reason by
showing only that the reason is not credible, without offering
proof, in addition to the prima facie case, of discriminatory
motive. Our en banc court may soon consider this issue. See
Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir.1994), reh'g
en banc granted,
49 F.3d 127 (5th Cir.1995). Because we conclude
that no reasonable juror could find that Vought's
nondiscriminatory reason was not credible, we do not reach this
issue.
8
sufficient to support a finding that white employees in
circumstances "nearly identical" to his have been treated
differently. See Little, 924 F.2d at 96-97 (rejecting rebuttal
evidence of disparate treatment because circumstances were not
"nearly identical").
Finally, Mayberry appears to suggest that Vought's
nondiscriminatory explanation is suspect because, according to
Mayberry, Vought has a propensity for discrimination because of a
finding by the Department of Labor that Vought had occasionally
discriminated on the basis of race in its promotion decisions.7 We
will not entertain such a suggestion. According to his affidavit,
Mayberry has brought, or been a party to, at least six prior
charges of discrimination against Vought, none of which have
resulted in a finding of discrimination against Mayberry. Just as
we cannot assume that Mayberry's past conduct suggests a propensity
to file false charges, we cannot assume that Vought's past conduct
suggests it has discriminated against Mayberry.8
In sum, based on the summary judgment record, a reasonable
juror could not conclude that Mayberry received the 13-day
suspension because of his race. Therefore, summary judgment on
7
Mayberry also asserts that his workmanship violations began
to issue only after he joined in a class action discrimination
complaint against Vought, and after his participation in
picketing against it.
8
We note that the Department of Labor found only individual
instances of discrimination in promotion decisions, and "[t]hese
instances did not occur in any pattern or practice that would
suggest Blacks, as a class, were treated differently because of
their race".
9
this claim was proper.
B.
A prima facie case of retaliation exists if the plaintiff
establishes that (1) he participated in statutorily protected
activity, (2) he received an adverse employment action, and (3) a
causal connection exists between the protected activity and the
adverse action. Armstrong v. City of Dallas, 997 F.2d 62, 65 n. 3
(5th Cir.1993). The parties agree that Mayberry meets the first
two elements. Vought contends, however, and the district court
agreed, that Mayberry failed to create a material fact issue on the
existence of a causal connection between his protected activity and
his suspension.
Mayberry asserts that the timing of the suspension in
relation to his protected activity establishes the required nexus.9
The timing of the adverse employment action can be a significant,
although not necessarily determinative, factor. See e.g., Shirley
v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992) (discussing
evaluation of "timing" evidence). In this case, however, it is
unclear that the timing of the suspension benefits Mayberry's case.
According to his affidavit, Mayberry first engaged in
protected activity (filed an EEOC charge) sometime "in the mid
1980's", and continued, with regularity, in protected activity
9
Mayberry also rests a prima facie case on the basis of the
evidence offered for his discrimination claim. To the extent
that such evidence may be relevant to a prima facie case for
retaliation, we find it insufficient, as discussed in part II.A.,
supra.
10
through 1992.10 In this regard, there is nothing inherently
"suspicious" about a 13-day suspension that occurs at least several
years after protected activity begins. Indeed, one might argue
that the "timing" here is evidence against retaliation. We need
not go that far. Suffice it to say that we find insufficient
evidence to support a finding that "but for" Mayberry's protected
activity, he would not have received the 13-day suspension. See
Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984)
(noting that prima facie retaliation requires "but for" causation).
Furthermore, assuming arguendo that Mayberry established a
prima facie case, he fails, for summary judgment purposes, to
overcome Vought's legitimate nondiscriminatory reason for the
suspension—its belief that Mayberry violated the work-rule. The
analysis in part II.A, supra, applies here.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
10
It is unclear when Mayberry filed his first EEOC
complaint. Mayberry states in his affidavit that he had filed
EEOC complaints "in the mid 1980's". Mayberry filed an EEOC
charge in connection with his delayed promotion to Class B
machine operator. He again filed an EEOC charge in connection
with his delayed promotion to Class A machine operator. The
class A promotion occurred in 1988; therefore, his first EEOC
complaint (if it was for his class B promotion) must have
occurred prior to 1988. Mayberry also engaged in protected
activity (discrimination charges and/or picketing against Vought)
in 1988, 1990, 1991, and 1992.
11
