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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

FELICIA BLACK §

§

VS. § CIVIL ACTION 4:03-CV-1468-Y

§

LOCKHEED MARTIN, LTD., et al. §

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Pending before the Court is defendant Lockheed Martin, Ltd.

(“Lockheed Martin”)’s Motion for Summary Judgment [doc. # 62],

filed July 27, 2005. Having carefully considered the motion,

response, and reply, the Court concludes that the motion should be

GRANTED.

I. BACKGROUND

Plaintiff Felicia Black, an individual of African-American

descent, worked for Lockheed Martin from January until

approximately November of 2002. On December 19, 2003, Black filed

suit in this Court against Lockheed Martin for employment

discrimination. Black’s Second Amended Complaint includes claims

against Lockheed Martin for retaliation and disparate treatment

based on race in violation of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C.S. § 2000 et seq., and the Civil Rights Act of

1870, 42 U.S.C. § 1981.

II. STANDARD OF REVIEW

Summary judgment is proper when the record establishes “that

there is no genuine issue as to any material fact and that the

 

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moving party is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c). An issue is considered “genuine” if “it is real and

substantial as opposed to merely formal, pretended, or a sham.”

Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing

Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are

considered “material” if they “might affect the outcome of the suit

under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). To determine whether there are any genuine issues

of material fact, the Court must first consult the applicable

substantive law to ascertain what factual issues are material.

Lavespere v. Niagra Mach. & Tool Works, 910 F.2d 167, 178 (5th Cir.

1990). Next, the Court must review the evidence on those issues,

viewing the facts in the light most favorable to the nonmoving

party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th

Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).

In making its determination on the motion, the Court must look

at the full record including the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits. See FED. R.

CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988).

Rule 56, however, “does not impose on the district court a duty to

sift through the record in search of evidence to support” a party’s

motion for, or opposition to, summary judgment. Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). Thus,

parties should “identify specific evidence in the record, and . .

 

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. articulate” precisely how that evidence supports their claims.

Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the

Court’s function is not to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine

issue for trial. See Anderson, 477 U.S. at 249.

To prevail on a motion for summary judgment, the moving party

has the initial burden of demonstrating that there is no genuine

issue as to any material fact and that he is entitled to judgment

as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323

(1986). A defendant moving for summary judgment may submit

evidence that negates a material element of the plaintiff’s claim

or show that there is no evidence to support an essential element

of the plaintiff’s claim. See Celotex Corp., 477 U.S. at 322-24;

Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th

Cir. 1994); Lavespere, 910 F.2d at 178.

To negate a material element of the plaintiff’s claim, the

defendant must negate an element that would affect the outcome of

the action. See Anderson, 477 U.S. at 247. If the defendant moves

for summary judgment alleging no evidence to support an essential

element of the plaintiff’s claim, the defendant need not produce

evidence showing the absence of a genuine issue of fact on that

essential element. Rather, the defendant need only show that the

plaintiff, who bears the burden of proof, has adduced no evidence

 

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1 Section 1981 provides that all persons in the United States shall have

the same contractual rights as white citizens. See 42 U.S.C. § 1981(a); LaPierre

v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996). 

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to support an essential element of his case. See Celotex, 477 U.S.

at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).

When the moving party has carried its summary-judgment burden,

the respondent must go beyond the pleadings and by his own evidence

set forth specific facts showing there is a genuine issue for

trial. Arbaugh v. Y&H Corp., 380 F.3d 219, 222 (5th Cir. 2004)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); see

also FED. R. CIV. P. 56(e). This burden is not satisfied by creating

some metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla

of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994). If the evidence is merely colorable or is not

significantly probative, summary judgment may be granted. See

Anderson, 477 U.S. at 249-50. 

III. ANALYSIS

A. Disparate Treatment Pursuant to Title VII and § 1981

Both Title VII and § 19811 are governed by the same

evidentiary framework. LaPierre, 86 F.3d 444, 448 n.2 (5th Cir.

1996). The Court may therefore examine Black’s Title VII and

§ 1981 claims together through application of Title VII law. See

id.

 

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Title VII makes it an unlawful employment practice for an

employer to discriminate against any individual on the basis of

race, religion, sex, or national origin. See 42 U.S.C. § 2000e2(a)(1). Both overt discrimination and “practices that are fair in

form but discriminatory in practice” are prohibited by Title VII.

See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); Frazier v.

Garrison I.S.D., 980 F.2d 1514, 1522-23 (5th Cir. 1993). There are

consequently two theories of liability under Title VII: disparate

impact and disparate treatment. See Frazier, 980 F.2d at 1523. 

Black’s racial-discrimination claims rest on grounds of

disparate treatment. In race-based cases, disparate-treatment

theories of recovery require a showing “that the employer

intentionally treated the employee unfairly because of race.” Id.

(citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46

(1989)). Thus, “[a] plaintiff alleging disparate treatment in a

Title VII action has the burden of proving discriminatory intent.”

Barnes v. Yellow Freight Systems, Inc., 778 F.2d 1096, 1101 (5th

Cir. 1985) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248, 258 (1981)).

There are two methods for establishing a prima-facie case of

disparate treatment: direct and indirect (or inferential). Davis

v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994) (per

curiam) (citation omitted). The direct method requires evidence

that, if believed, “proves the fact [of discriminatory animus]

 

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without inference or presumption.” Brown v. East Miss. Elec. Power

Ass’n, 989 F.2d 858, 861 (5th Cir. 1993); see also Davis, 14 F.3d

at 1085. Direct evidence of discrimination includes comments that

“directly suggest the existence of bias.” Davis, 14 F.3d at 1085.

Direct evidence does not include, however, “stray remarks in the

workplace,” “statements by nondecisionmakers,” or “statements by

decisionmakers unrelated to the decisional process itself.” Price

Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J.,

concurring); see also Boyd v. State Farm Ins., 158 F.3d 326, 329-

330 (5th Cir. 1998) (“The mere utterance of a racial epithet is not

indicia of discrimination under Title VII.”) (citing Anderson v.

Douglas & Lomason Co., Inc., 26 F.3d 1277, 1295 (5th Cir. 1994)).

Black fails to provide any direct evidence of discrimination.

Her claims center around the following alleged incidents: (1) when

her supervisor, Peter Bernstein, wiped his hand after shaking hands

with Black at their first meeting, though Bernstein did not wipe

his hand after shaking hands with non-minority employees (“the

hand-wiping incident”); (2) Black’s assignment to a different

workspace location; (3) Bernstein’s cancellation of scheduled

training for Black; (4) the assignment of additional duties to

Black; (5) Bernstein’s failure to correct Black’s time-recording

inaccuracies; (6) Bernstein’s comment to Black that “You people

should be glad you have a job here” (the “you-people” comment”);

and (7) Black’s termination from Lockheed Martin.

 

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None of these incidents “directly suggest the existence of

bias.” Davis, 14 F.3d at 1085. They all require an inferential

step to constitute evidence of racial discrimination. This is true

even for the “you-people” comment. As already stated, stray

remarks in the workplace are not direct evidence of discrimination.

See Hopkins, 490 U.S. at 277; Boyd, 158 F.3d at 329-330. This is

especially so where the statement is an isolated occurrence, as

here. See Boyd, 158 F.3d at 329-330 (citing Brown v. CSC Logic,

Inc., 82 F.3d 651, 656 (5th Cir. 1996) (specific comments over a

lengthy period of time sufficient to establish discrimination); Ray

v. Tandem Computers, 63 F.3d 429, 435 (5th Cir. 1995) (single

comment too remote to infer discrimination); Guthrie v. Tifco

Industries, 941 F.2d 374, 379 (5th Cir. 1991)(comments made at least

a year prior to demotion insufficient to imply discrimination);

Daniels v. Essex Group, Inc., 937 F.2d 1264, 1266 (7th Cir. 1991)

(discrimination prevalent where employee was nicknamed “Buckwheat”

for first ten years of employment and subjected to other racial

taunts)). Moreover, Bernstein did not say that Black’s race played

a role in his assessment; rather, the alleged statement was

directed towards “you people,” which could conceivably be a

reference to any number of things, such as Black’s status within

the company, individuals with the same job title as Black, or

Black’s coworkers in general. Such evidence is not direct.

 

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 Where there is no direct evidence of intentional

discrimination, the Fifth Circuit requires the application of the

burden-shifting standard first established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), to analyze

claims of intentional discrimination. See Armstrong v. City of

Dallas, 997 F.2d 62, 65 n.2 (5th Cir. 1993); Texas v. Crest Asset

Mgmt., Inc., 85 F. Supp. 2d 722, 728-29 (S.D. Tex. 2000); Norris v.

Housing Auth., 980 F.Supp. 885, 900-01 (S.D. Tex. 1997). Under the

McDonnell Douglas standard, “the plaintiff must initially establish

a prima-facie case by satisfying a multi-factor test from which a

discriminatory motive may be inferred, thus creating a rebuttable

presumption of intentional discrimination.” Texas, 85 F.Supp.2d at

729. “Once the plaintiff establishes a prima-facie case, then the

burden shifts to the defendant to articulate--but not prove--a

legitimate nondiscriminatory reason for its action.” Id. at 729;

see McDonnell Douglas Corp., 411 U.S. at 802. A defendant meets

this burden by producing admissible evidence of a reason that would

be “legally sufficient to justify a judgment for the defendant.”

Bohrer v. Hanes Corp., 715 F.2d 231, 218 (1983) (quoting Burdine,

450 U.S. at 253-54). But the defendant need not persuade the trier

of fact that there was no intentional discrimination; the defendant

need only produce evidence on that point. See St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2747 (1993). If

the defendant meets its burden of production, then the burden

 

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shifts back to the plaintiff to show that “the reason proffered by

the defendant is merely a pretext for discrimination.” McDonnell

Douglas, 411 U.S. at 802. 

The plaintiff can make a showing of pretext “either directly

by persuading the court that a discriminatory reason more likely

motivated the [defendant] or indirectly by showing that the

[defendant’s] proffered explanation is unworthy of credence.”

Burdine, 450 U.S. at 256. A defendant’s explanation is not exposed

as a pretext for discrimination unless it is shown both that the

defendant’s stated nondiscriminatory reason was false and that

discrimination was the real reason for the decision. St. Mary's,

509 U.S. at 515. However, once the plaintiff has made a sufficient

showing of pretext, “[n]o further evidence of discriminatory animus

is required.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.

2003). It is important to note that “[t]he ultimate burden of

proof of intentional discrimination rests at all times on the

plaintiff.” Norris, 980 F.Supp. at 901 (citing St. Mary's, 509

U.S. at 507). 

“Summary judgment is particularly appropriate when the Court

is evaluating evidence at the ‘pretext’ stage of the McDonnell

Douglas analysis.” Id. “It is relatively easy both for a

plaintiff to establish a prima facie case and for a defendant to

articulate a legitimate, non-discriminatory reason for his

decision.” Britt v. Grocers Supply Co., 978 F.2d 1441, 1450 (5th

 

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Cir. 1992) (citing Amburgey v. Corhart Refractories Corp., 936 F.2d

805, 811 (5th Cir. 1991)). “In the context of summary judgment .

. . , the question is not whether the plaintiff proves pretext, but

rather whether the plaintiff raises a genuine issue of fact

regarding pretext.” Id. Speculation and belief are insufficient

to create a fact issue as to pretext. See Britt, 978 F.2d at 1451;

see also Norris, 980 F.Supp. at 901. Nor can pretext be

established by mere conclusory statements of a plaintiff who feels

that he has been discriminated against. E.E.O.C v. Exxon Shipping

Co., 745 F.2d 967, 976 (5th Cir. 1984); see also 980 F.Supp. at 901.

Because Black has not shown that Lockheed Martin’s reasons for

disparate treatment of Black are pretexts for unlawful

discrimination, however, the Court sees no need to rummage through

the arguments over whether Black has established a prima-facie

case; one will be assumed. See Okoye v. Univ. of Tex. Houston

Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001); Britt 978 F.2d

at 1450. 

Moving on then to pretext, first, Lockheed Martin has

thoroughly documented and substantiated its nondiscriminatory

reason for terminating Black--her failure to properly document and

categorize her time during the work day. Black has even admitted

that she failed to properly document her time and that she was

aware that she could be sanctioned or discharged for mischarging

her work hours. Black does not dispute or object to this evidence.

 

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2 Black also attempts to raise pretext questions by citing Bernstein’s

failure to correct Black’s erroneous time entries. Black stated in her

deposition, however, that she was aware that it was her responsibility to

properly document her time. 

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Instead, she merely attempts to weaken its impact with her own

vague conjecture.2 

Second, the few isolated incidents Black relies upon to raise

an issue as to whether Lockheed Martin’s reasons for its adverse

treatment of Black were a pretext for discrimination, fail to raise

that issue in view of essentially uncontroverted evidence adduced

by Lockheed Martin but not recounted here in detail. This leaves

only Black’s suspicion of discrimination to raise a fact issue as

to pretext. But that suspicion and the incidents upon which its

based do not constitute even a scintilla of proof in favor of her

argument. See Britt, 978 F.2d at 1451; Norris, 980 F.Supp. at 901.

Black has not raised any genuine questions as to whether a

discriminatory motive more than likely motivated Lockheed Martin in

its treatment or termination of Black. See Burdine, 450 U.S. at

256. Nor has she raised genuine issues as to whether Lockheed

Martin’s explanations for its conduct are unworthy of credence.

See Laxton, 333 F.3d 572, 578 (quoting Wallace v. Methodist Hosp.

Sys., 271 F.3d 212, 220 (5th Cir. 2001) (citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Summary judgment

must therefore be granted to Lockheed Martin. See Britt, 978 F.2d

at 1451; Norris, 980 F.Supp. at 901.

 

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3 Moreover, the Court notes that Black failed to address most of the issues

briefed by Lockheed Martin, including the arguments directed towards Black’s

retaliation claims.

4 Though Lockheed Martin made several objections to Black’s summaryjudgment evidence, because of the result reached in this order those objections

are hereby RENDERED MOOT.

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B. Other Claims

The Court grants Lockheed Martin’s motion as to Black’s

retaliation claim for the reasons stated in section F.1. of

Lockheed Martin’s brief in support of its motion. As for all other

claims by Black, the Court grants Lockheed Martin’s motion for the

reasons stated therein.3 

IV. CONCLUSION

Therefore, Lockheed Martin’s Motion for Summary Judgment [doc.

# 62] is GRANTED.4

SIGNED March 7, 2006.

 

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