UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELVIS JOHNSON,

Plaintiff,

VS.

CENTER OPERATING COMPANY,

L.P.,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:04-CV-0111-G

)

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant Center Operating Company,

L.P. (“COC”) for summary judgment. For the following reasons, the motion is

granted.

I. BACKGROUND

Plaintiff Elvis Johnson (“Johnson”) is a resident of Texas. See Plaintiff’s

Original Complaint (“Complaint”) ¶ 3. He is African-American and was born on

February 22, 1957. Id. ¶ 6; Deposition of Elvis Johnson (“Johnson Deposition”),

attached to Appendix in Support of Defendant’s Motion for Summary Judgment

(“Appendix”) as Tab 1 at 3.

 

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COC, a limited partnership between the ownership of the Dallas Stars

professional hockey team and the Dallas Mavericks professional basketball team,

operates Reunion Arena and the American Airlines Center in Dallas, Texas. Center

Operating Company’s Brief in Support of its Motion for Summary Judgment

(“Motion”) at 2 n.4. COC is authorized to do business in the State of Texas. 

Complaint ¶ 4.

On November 7, 1998, Johnson began working at Reunion Arena as a parttime set up and change over employee. See Personnel Hire Notice, attached to

Appendix as Tab 4. COC took over operations at Reunion Arena in 2000 and hired

Johnson as a part-time set up employee. Motion at 2. The set up crew set up and

broke down chairs, floors, walls, and glass for different events at the arena. Plaintiff’s

Brief in Support of Plaintiff’s Response to Defendant’s Motion for Summary

Judgment (“Response”) at 1. On July 18, 2000, Johnson acknowledged his receipt of

the COC employee policy manual. See Acknowledgment and Receipt of Employee

Policy Manual, attached to Appendix as Tab 2.

On October 2, 2000, Johnson submitted to a drug screening and tested

positive for marijuana. See Pharmchem Laboratory Report, attached to Appendix as

Tab 8. In a letter dated October 11, 2000, COC operations manager Dave Westby

suspended Johnson for one week without pay due to the failed drug test. See Letter

 

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1 COC filed a copy of that videotape with the court. See Vidoetape,

attached to Appendix as Exhibit C.

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Dated October 11, 2000, attached to Appendix as Tab 9; see also Personnel Action

Notice, attached to Appendix as Tab 3.

On July 30, 2002, Reunion Arena events manager Dana Intihar called Robert

Jordan (“Jordan”), Johnson’s supervisor, to view a security videotape. See Affidavit of

Robert Jordan (“Jordan Affidavit”), attached to Appendix as Tab 17 at 57.1 The

following is Jordan’s description of the contents of that videotape.

In the tape, I saw Sam Davis, Changeover Supervisor,

(“Davis”) and Elvis Johnson, Changeover crew, (“Johnson”)

arriving together in the company pick up at the Reunion

Arena loading docks. As we viewed the tape I observed

Davis and Johnson entering the arena through the loading

docks door and proceeding past the security guard station

and exiting past the camera viewing area. In the next

moment the tape showed Johnson at a pallet of boxes. The

boxes contained Dallas Sidekicks t-shirts that were

designated as promotional giveaways for a Sidekicks soccer

game that was to be held at Reunion Arena.

After a short period of time, the video shows the security

guard leaving his post and entering the arena. Almost

immediately after the security guard leaves, the tape

showed Johnson appearing within camera view. Johnson is

then observed picking up a box from the pallet and

handing it to Davis who leaves the arena with the box and

places the box in the back of the (white) company truck. 

After putting the box in the pick up, Davis returns to the

arena.

Davis is observed waiting at the dock door since it locked

behind him as he exited the arena. After the security

guards return to the security post, Davis reenters the arena

 

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and walks beyond the camera’s view. Shortly after the box

is placed in back of the truck, Davis and Johnson are

observed leaving the arena, getting in the pick up and

driving away.

Id. at 58.

After viewing the videotape, Jordan transferred that videotape to Colette Vallot

(“Vallot”), human resources director for the American Airlines Center. Id. Vallot

confirmed with the Sidekicks organization that Sidekicks t-shirts were missing. Id. at

59. Jordan and Vallot subsequently interviewed Johnson and his coworker Sam

Davis. Id. at 58-59. Upon questioning, Johnson denied any knowledge of missing tshirts. Id. at 59. He claimed that he only took a box of tools out of the arena. Id. 

Johnson maintains that on July 30, 2002, he accompanied Davis to Reunion

Arena. Response at 2. While at the arena, Davis asked Johnson to hand him a box. 

Id. Johnson contends that he did not know what was inside the box. Id. Davis and

Johnson then drove the American Airlines Center. Id. Davis pulled up to the back

dock of the American Airlines Arena, and Johnson exited the truck. Id.

In a letter dated August 2, 2002 to Johnson, Vallot terminated Johnson’s

employment. See Letter Dated August 7, 2002, attached to Appendix as Tab 11. The

letter stated, in pertinent part:

On Monday, August 5, 2002, you were suspended from

work pending the outcome of our investigation into the

unauthorized taking of a box of t-shirts belonging to the

Sidekicks. We have concluded the investigation and

determined that your employment at Arena Operating

 

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2 While Johnson did not specifically plead a cause of action for failure to

promote, see generally Complaint, the court will analyze such a claim out of an

abundance of caution. See Response at 15 (“Johnson was more qualified to perform

the functions of supervisor than Gerald Atkins, who was promoted to supervisor

instead of Johnson and was younger and clearly less qualified than Johnson.”). The

defendant interprets Johnson’s pleadings as stating claims under Title VII for race

discrimination, retaliation, and harassment and under the ADEA for age

discrimination. See generally Motion. The court will address each such claim in turn.

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Company is hereby terminated for violation of company

policy, effective today.

Id.; see also Personnel Action Notice, attached to Appendix as Tab 10.

Jordan maintains that his decision to terminate Johnson’s employment “was based

solely upon evidence of wrongdoing (theft), and had nothing to do with his race or

his age.” Jordan Affidavit at 60. Johnson was 45-years-old at the time of the

termination of his employment. Response at 2.

On December 13, 2002, Johnson filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). See Charge of

Discrimination, attached to Appendix as Tab 12. On October 24, 2003, the EEOC

issued to Johnson a Notice of Right to Sue. Complaint ¶ 5.

Johnson filed this case on January 21, 2004. His complaint alleges the

following causes of action: discrimination on the basis of race, in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.;

retaliation, hostile work environment, and failure to promote,2

 in violation of Title

 

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3 The disposition of a case through summary judgment “reinforces the

purpose of the Rules, to achieve the just, speedy, and inexpensive determination of

actions, and, when appropriate, affords a merciful end to litigation that would

otherwise be lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d 1190,

1197 (5th Cir. 1986).

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VII; and discrimination on the basis of age in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Complaint ¶ 6.

Johnson maintains that Jordan treated black employees differently than white

employees by not offering black employees comparable full time employment and

benefits. Response at 5. Johnson further alleges younger, white employees were

given positions in setup that Johnson was qualified for. Id. Additionally, Johnson

avers that Jordan once stated that “all blacks have sold something in their lifetime.” 

Id.

II. ANALYSIS

A. Evidentiary Burdens on Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show

that no genuine issue exists 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).3

 “[T]he substantive

law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A genuine issue of material fact exists “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id. The movant

makes such a showing by informing the court of the basis of its motion and by

 

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identifying the portions of the record which reveal there are no genuine material fact

issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,

depositions, admissions, and affidavits, if any, must demonstrate that no genuine

issue of material fact exists. FED. R. CIV. P. 56(c).

Once the movant makes this showing, the nonmovant must then direct the

court’s attention to evidence in the record sufficient to establish that there is a

genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this

burden, the “opponent must do more than simply show . . . some metaphysical doubt

as to the material facts.” Matsushita Electric Industrial Company, Ltd. v. Zenith Radio

Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the

evidence is sufficient to support a resolution of the factual issue in his favor. Anderson,

477 U.S. at 249.

While all of the evidence must be viewed in a light most favorable to the

motion’s opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Company,

398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated

assertions will satisfy the non-movant’s summary judgment burden. Little v. Liquid

Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman,

954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary

judgment in favor of the movant is proper if, after adequate time for discovery, the

 

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4 “Direct evidence” in the employment discrimination context is

“evidence which, if believed, proves the fact [of discriminatory animus] without

inference or presumption.” Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th

Cir. 1995) (citing Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861

(5th Cir. 1993)).

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motion’s opponent fails to establish the existence of an element essential to his case

and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

B. Title VII Claims

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et

seq., prohibits discrimination on the basis of race, color, religion, sex, or national

origin in federal and private employment. Fitzgerald v. Secretary, United States

Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Title VII also

prohibits retaliation against an employee “because he has opposed any practice made

an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).

1. Race Discrimination

This court applies the burden shifting framework utilized by the Supreme

Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to analyze

Johnson’s claims of race discrimination in employment. St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 506 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 252-53 (1981).

Since the record in this case contains no direct evidence of race

discrimination,4

 a three-step analysis applies. See Portis v. First National Bank of New

 

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Albany, MS, 34 F.3d 325, 328 (5th Cir. 1994); see also St. Mary’s, 509 U.S. at

506-11; Burdine, 450 U.S. at 252-56; McDonnell Douglas, 411 U.S. at 802-05. In the

first step, the plaintiff must establish a prima facie case of discrimination. Portis, 34

F.3d at 328 n.7. If the plaintiff presents a prima facie case, a presumption of

discrimination arises. St. Mary’s, 509 U.S. at 506. At the second step, the defendant

can rebut this presumption of discrimination by offering a legitimate,

nondiscriminatory reason for the employment decision of which the plaintiff

complains. Id. at 507. If the defendant satisfies this burden of production, the

plaintiff’s prima facie case dissolves, id., and the case proceeds to the third step of the

analysis. Id. At this third stage, the burden is on the plaintiff to prove that the

reasons offered by the defendant are pretexts for race discrimination. Id. at 507-08.

When the analysis has proceeded to this third step, the plaintiff -- to avoid

summary judgment -- must produce evidence from which a reasonable factfinder

could find “that the employer’s reasons were not the true reason for the employment

decision and that unlawful discrimination was.” Bodenheimer v. PPG Industries, Inc., 5

F.3d 955, 957 (5th Cir. 1993) (emphasis in original). Accord Moore v. Eli Lilly and

Company, 802 F. Supp. 1468, 1471-74 (N.D. Tex. 1992), aff’d, 990 F.2d 812, 816

n.24 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Waggoner v. City of Garland, 987

F.2d 1160, 1166 (5th Cir. 1993). See St. Mary’s, 509 U.S. at 507-08.

a. Prima Facie Case

 

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To establish a prima facie case of race discrimination, Johnson must show

(1) that he was a member of a protected group, African-American; (2) that he was

qualified for his position; (3) that he was dismissed or suffered an adverse

employment action; and (4) that the defendant sought to replace him with a similarly

qualified white employee. E.g., Ward v. Bechtel Corporation, 102 F.3d 199, 202 (5th

Cir. 1997). That is, Johnson must prove that “an employee outside of his protected

class received better treatment on circumstances nearly identical to his.” Bowers v.

Principi, 70 Fed. Appx. 157, 2003 WL 21554567, at *1 (5th Cir. July 3, 2003) (per

curiam) (citation omitted). COC asserts that Johnson cannot establish a prima facie

case of race discrimination. Motion at 6-7. For the purposes of this motion, the

court will assume arguendo that Johnson can satisfy the first three elements of his

prima facie case. COC contends, however, that Johnson’s prima facie case fails with

respect to the fourth element. Motion at 17-18. COC focuses on Johnson’s alleged

failure to introduce evidence showing that he was replaced by someone outside the

protected class or replaced by someone younger. Id. at 18. Rather, COC maintains,

Johnson -- a 45-year-old African-American male -- was replaced by Gregory Hill

(“Hill”) -- a 41-year-old African-American male -- as a member of the set up crew. Id.

at 18; COC’s Reply in Support of its Motion for Summary Judgment and Objections

to Plaintiff’s Evidence (“Reply”) at 3.

 

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The court will assume, however, for the purposes of this motion, that Johnson

has established a prima facie case of race discrimination. The question then becomes

whether COC has offered a legitimate, nondiscriminatory reason for Johnson’s

discharge and whether Johnson can satisfy his pretext burden.

b. Nondiscriminatory Reason

COC contends that it has established that Johnson was terminated for

legitimate, non-discriminatory reasons. Motion at 8. To satisfy its burden of

production, COC must merely produce evidence which, if believed by the trier of fact,

would support a finding that unlawful discrimination was not the cause of the

employment action about which the plaintiff complains. See St. Mary’s, 509 U.S. at

507, 509 (at this stage of analysis, credibility determinations are not warranted as

burden-of-production determination necessarily precedes credibility assessment

stage); see also Dailey v. Johnson & Johnson Consumer Products, Inc., 850 F. Supp. 549,

553 n.2 (N.D. Tex. 1994) (“It is important to note that whether a defendant carries

[its] burden of production involves no credibility assessment, ‘[f]or the

burden-of-production determination necessarily precedes the credibility-assessment

stage.’”) (emphasis in original, quoting St. Mary’s, 509 U.S. at 509), aff’d, 99 F.3d

1136 (5th Cir. 1996) (table); Thornton v. Neiman Marcus, 850 F. Supp. 538, 543

(N.D. Tex. 1994) (“The Court may not assess the credibility of the stated reason.”).

 

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COC has submitted evidence that termination of Johnson’s employment was

due to his theft of a box of t-shirts. Thus, COC has produced a sufficient

nondiscriminatory reason for its termination of Johnson’s employment. See Wright v.

Southwest Bank, 648 F.2d 266, 267 (5th Cir. 1981). Accordingly, upon review of the

motion, the response, and the evidence in the record, the court concludes that COC

has carried its burden of articulating a legitimate, nondiscriminatory reason for

terminating Johnson’s employment.

c. Pretext Burden

When the analysis has proceeded to this third step, Johnson -- to avoid

summary judgment -- must produce evidence from which a reasonable factfinder

could find that COC’s stated reason was not the true reason for the employment

decision and that unlawful discrimination was. Bodenheimer, 5 F.3d at 957 (emphasis

in original). Accord Moore, 802 F. Supp. at 1471-74; Waggoner, 987 F.2d at 1166; see

St. Mary’s, 509 U.S. at 515-16. To show pretext, a plaintiff must do more than

negate the defendant’s proffered reasons for the employment decision. See Walton v.

Bisco Industries, Inc., 119 F.3d 368, 371 (5th Cir. 1997).

In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc), the

Fifth Circuit set forth the following standard regarding proof of pretext:

[A] jury issue will be presented and 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 what actually motivated the employer

 

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5 Johnson argues that he was not “in any way involved in this theft,

therefore the reason for termination is clearly false, and therefore pretext for

discrimination.” Response at 20. The issue, however, is not whether Johnson was

guilty of the theft but whether COC had a good faith belief that he was. See Jones v.

(continued...)

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and (2) creates a reasonable inference that [race] was a

determinative factor in the actions of which plaintiff

complains. The employer, of course, will be entitled to

summary judgment if the evidence taken as a whole would

not allow a jury to infer that the actual reason for the

discharge was discriminatory.

Id. at 994; see also Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181-83 (5th

Cir. 1996) (quoting Rhodes standard and applying it in Title VII summary judgment

context). “Rhodes makes clear that a plaintiff must present evidence sufficient to

create a reasonable inference of discriminatory intent in order to avoid summary

judgment.” Grimes v. Texas Department of Mental Health and Mental Retardation, 102

F.3d 137, 141 (5th Cir. 1996); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 450 (5th

Cir. 1996).

After reviewing Johnson’s response to COC’s motion for summary judgment,

the court concludes that he has failed to raise a genuine issue of material fact that

COC’s reason for discharging him is a mere pretext for race discrimination. Even if it

is assumed, arguendo, that Johnson has presented a prima facie case, his claim would

fail for want of evidence from which a reasonable jury could conclude that the

legitimate reasons offered by COC were pretexts for race discrimination. Johnson

offers nothing to show that an impermissible racial animus motivated COC.5

 Absent

 

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5

(...continued)

Flagship International, 793 F.2d 714, 729 (5th Cir. 1986) (“Flagship need not have

been correct in its basis for suspending and discharging Jones to show that its actions

were motivated for non-retaliatory reasons . . . . It is sufficient . . . that Flagship had

reasonable grounds, or in good faith though[t] it did, for its suspension and

termination of Jones’ employment.”) (internal quotation marks omitted), cert. denied,

479 U.S. 1065 (1987). Johnson has the burden of showing that the stated reason for

his discharge, theft of the t-shirts, was not the true reason (in other words, that COC

did not believe him guilty of the theft) and that racial discrimination was. 

Bodenheimer, 5 F.3d at 957. See Waggoner, 987 F.2d at 1166 (“To the extent that

Waggoner’s summary judgment evidence relates to his innocence of the sexual

harassment charge, it is irrelevant. He must, instead, produce evidence

demonstrating that Hamilton or Phillips did not in good faith believe the allegations,

but relied on them in a bad faith pretext to discriminate against him on the basis of his

age.”) (emphasis in original). Johnson has failed to carry this burden of

demonstrating pretext. Indeed, he admitted in his deposition that no one involved in

supervising or terminating him ever indicated any doubt that Johnson was guilty of

the theft. Johnson Deposition 21:13-17, Appendix at 6.

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such evidence, a verdict in favor of Johnson on his claims of race discrimination

would be insupportable as a matter of law. See Swanson v. General Services

Administration, 110 F.3d 1180, 1185 (5th Cir.) (reversing and rendering a jury verdict

where the plaintiff offered no evidence connecting the defendant’s actions to race),

cert. denied, 522 U.S. 948 (1997).

Johnson incorrectly asserts that the comment by Jordan that “all blacks have

sold something in their lifetime” supports a clear inference of discrimination. 

Response at 5. In keeping with the summary judgment standard, the court will

assume that the comment was made. Still, it does not -- on its face -- evidence an

intent to discriminate on the basis of race. The comment is -- at best -- no more than

a “stray remark,” and “‘stray remarks’ alone will not overcome overwhelming evidence

 

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corroborating defendant[’s] non-discriminatory rationale.” Sreeram v. Louisiana State

University Medical Center-Shreveport, 188 F.3d 314, 320 (5th Cir. 1999); see also Brown

v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996); Waggoner, 987 F.2d at 1166.

The Fifth Circuit has held that such remarks may be sufficient evidence of

discrimination if the comments are “1) related [to the protected class of persons of

which the plaintiff is a member]; 2) proximate in time to the termination[]; 3) made

by an individual with authority over the employment decision at issue; and 4) related

to the employment decision at issue.” Krystek v. University of Southern Mississippi, 164

F.3d 251, 256 (5th Cir. 1999) (citations omitted). In this case, Johnson has

presented no evidence that the comment was proximate in time to Johnson’s

termination. Nor has it been shown that the comment makes any reference to the

employment decision at issue -- COC’s decision to terminate Johnson’s employment. 

Johnson has failed to demonstrate that the comment he ascribes to Jordan is evidence

of pretext. This is especially so “where, as here, the evidence overwhelmingly

supports defendant[’s] proffered non-discriminatory rationale.” Sreeram, 188 F.3d at

320 (citing Brown, 82 F.3d at 656).

In sum, the most favorable view of the evidence suggests that Johnson was an

African-American who suffered adverse employment actions, not that he suffered

adverse employment actions because he was an African-American. Even when viewed

in a light most favorable to him, Johnson’s summary judgment evidence fails to create

 

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an issue of fact that his discharge was motivated by his race. Because he will bear the

burden of proof at trial on these elements of his claim, this lack of evidence is fatal. 

See Celotex, 477 U.S. at 322-23. Accordingly, COC’s motion for summary judgment

on Johnson’s race discrimination claim is granted.

2. Retaliation

As with Johnson’s claims of discrete instances of race discrimination, the court

applies the McDonnell Douglas/Burdine/St. Mary’s burden shifting framework to

Johnson’s claims of retaliation. See Sherrod v. American Airlines, Inc., 132 F.3d 1112,

1122 (5th Cir. 1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). To

establish a prima facie case of unlawful retaliation under Title VII, Johnson must

demonstrate that (1) he engaged in activity protected by Title VII; (2) an adverse

employment action occurred; and (3) a causal link existed between the protected

activity and the adverse employment action. See Webb v. Cardiothoracic Surgery

Associates of North Texas, P.A., 139 F.3d 532, 540 (5th Cir. 1998); Sherrod, 132 F.3d at

1122 n. 8; Long, 88 F.3d at 304; Collins v. Baptist Memorial Geriatric Center, 937 F.2d

190, 193 (5th Cir. 1991), cert. denied, 502 U.S. 1072 (1992). The causal connection

required is cause-in-fact or “but for” causation. Jack v. Texaco Research Center, 743 F.2d

1129, 1131 (5th Cir. 1984).

If it is assumed arguendo that Johnson has adduced sufficient evidence to

establish a prima facie case of retaliation, the court must next address COC’s proffered

 

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6 The “cause-in-fact” analysis of pretext requires proof of a significantly

stronger relationship between the adverse employment action and the alleged

retaliation than is required to show a “causal link” for the plaintiff’s prima facie case.

Sherrod, 132 F.3d at 1122 n. 8; Long, 88 F.3d at 305 n.4.

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explanation and Johnson’s ultimate proof. See, e.g., Long, 88 F.3d at 305. COC

explains Johnson’s termination by pointing to evidence that Johnson stole company

property. To avoid summary judgment, Johnson must rebut this legitimate

explanation by providing evidence from which a reasonable jury could conclude that

unlawful retaliation was the “cause-in-fact” of his injury. See Sherrod, 132 F.3d at

1123.

Upon review of the evidence, the court concludes that Johnson has failed to

provide proof from which a reasonable jury could find that retaliation was the causein-fact6

 of his discharge. Even if it is assumed arguendo that Johnson engaged in

protected activity, he has submitted no evidence challenging COC’s legitimate,

nondiscriminatory reason for discharging him, i.e., theft of company property.

Without such evidence showing that Johnson would not have been discharged “butfor” his complaints of discrimination, see Sherrod, 132 F.3d at 1122; Long, 88 F.3d at

305 n.4, COC is entitled to summary judgment on Johnson’s retaliation claim.

Moreover, as COC argues, the scope of Johnson’s administrative charges did

not fairly encompass a claim of retaliation. Reply at 3-4. See Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 465-67 (5th Cir. 1970) ( Title VII clearly contemplates

that no issue will be the subject of a civil action until the EEOC has first had the

 

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opportunity to attempt to obtain voluntary compliance); see also Vuyanich v. Republic

National Bank of Dallas, 723 F.2d 1195, 1199 (5th Cir.) (plaintiff’s claims should be

limited to those contained in EEOC complaint), cert. denied, 469 U.S. 1073 (1984).

3. Hostile Work Environment

In addition to the discrete instances of discrimination, Johnson claims that he

suffered pervasive harassment because of his race while he was an employee of COC. 

Response at 13; Complaint ¶ 6. Whether an environment is “abusive” or “hostile”

depends on the totality of the circumstances. Harris v. Forklift Systems, Inc., 510 U.S.

17, 23 (1993). Pertinent circumstances may include (1) the frequency of the

conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or

merely an offensive utterance; and (4) whether it unreasonably interferes with an

employee's work performance. Id.

Johnson provides nothing beyond his own opinion in support of his claim that

the harassment was racially motivated. See Johnson Deposition, attached to Appendix

at 12. It is well settled that “[a]n employee’s own subjective belief of race

discrimination, however genuine, cannot serve as the basis for judicial relief.” Patton

v. United Parcel Service, Inc., 910 F. Supp. 1250, 1263 (S.D. Tex. 1995) (citations

omitted). Johnson relies solely on conclusions based upon inference drawn from his

opinions. This “proof” is tantamount to no proof at all and will not preclude

summary judgment in favor of COC. See Douglass v. United Services Automobile

 

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Association, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (because conclusory

allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the

nonmovant’s summary judgment burden, employee’s subjective belief that he suffered

an adverse employment action as a result of discrimination, without more, is not

enough to survive a summary judgment motion). Isolated incidents described by

Johnson, if true, are not so severe and pervasive as to create an objectively hostile or

abusive work environment, as required to obtain relief under Title VII. See Harris,

510 U.S. at 21 (“Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive work environment -- an environment that a reasonable

person would find hostile or abusive -- is beyond Title VII’s purview”).

4. Failure to Promote

To make out a prima facie case of discriminatory failure to promote, Johnson

must show that (1) he belongs to a protected class, (2) he was qualified for the

position sought, (3) he did not receive the promotion, and (4) the position remained

open and was ultimately filled by someone outside the protected class. See St.

Mary’s, 509 U.S. at 506; McDonnell Douglas, 411 U.S. at 802; see also Uviedo v. Steves

Sash Door Company, 738 F.2d 1425, 1428 (5th Cir. 1984), cert. denied, 474 U.S. 1054

(1986). Here, Johnson failed to present evidence that he was qualified for a position

he sought, that he failed to receive the promotion, and that the job he sought was

filled by someone outside the protected class. Therefore, Johnson cannot establish a

 

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prima facie case, and summary judgment in favor of COC is proper. Celotex, 477 U.S.

at 322-23. Moreover, the scope of Johnson’s administrative charges did not fairly

encompass a claim of failure to promote. See Sanchez, 431 F.2d at 465-67; see also

Vuyanich, 723 F.2d at 1199.

C. Age Discrimination

The ADEA prohibits employers from discharging employees based upon their

age. 20 U.S.C. § 623(a)(1). To establish a violation of the ADEA, Johnson must

prove intentional discrimination. See Armendariz v. Pinkerton Tobacco Company, 58

F.3d 144, 149 (5th Cir. 1995), cert. denied, 516 U.S. 1047 (1996). The multi-step

McDonnell Douglas burden-shifting framework applied to Title VII claims also applies

to ADEA claims. Roberson v. Alltel Information Services, 373 F.3d 647, 651 (5th Cir.

2004). However, a fourth step is added to the ADEA framework. Thus, in the first

step, Johnson must establish a prima facie case of discrimination by showing that he

was (1) discharged; (2) qualified for the position; (3) within the protected class; and

(4) either (i) replaced by someone outside the protected class, (ii) replaced by

someone younger, or (iii) otherwise discharged because of his age. Armendariz, 58

F.3d at 149.

COC asserts that Johnson cannot establish a prima facie case of age

discrimination. Motion at 6. For the purposes of this motion, the court will assume

arguendo that Johnson can satisfy the first three elements of his prima facie case. COC

 

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contends, however, that Johnson’s prima facie case fails with respect to the fourth

element. Motion at 17-18. COC focuses on Johnson’s alleged failure to introduce

evidence to show that he was replaced by someone outside the protected class or replaced by

someone younger. Id. at 18. Rather, COC maintains, Johnson, a 45-year-old AfricanAmerican male, was replaced by Hill, a 41-year-old African-American male. Id. at 18;

Reply at 3. Accordingly, because Johnson has produced no evidence demonstrating

that COC’s explanation for terminating his employment was probably a pretext for

age discrimination, Johnson’s age discrimination claim must fail. See Celotex, 477

U.S. at 323 (“[A] complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.”).

III. CONCLUSION

For the foregoing reasons, COC’s motion for summary judgment is

GRANTED. Judgment will be entered for the defendant.

 

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SO ORDERED.

April 19, 2005.

 

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