1

According to plaintiffs’ first amended original complaint and

summary judgment brief, Kay goes by the nickname “Katie.”

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAY ANN WOOTEN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 3:04-CV-1196-D

VS. §

 §

FEDERAL EXPRESS CORPORATION, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this action by an interracial married couple alleging

claims for race discrimination and retaliation, their former

employer moves for summary judgment. For the reasons that follow,

the court grants the motion in part and denies it in part.

I

Plaintiffs Kay Ann Wooten (“Katie”) and Ronnie Lemuel Wooten

(“Ronnie”),1 who are married, are former employees of defendant

Federal Express Corporation (“FedEx”). They sue FedEx alleging

claims for disparate treatment race discrimination, retaliation,

and hostile work environment under Title VII of the Civil Rights

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

§ 1981, and the Texas Commission on Human Rights Act (“TCHRA”),

Tex. Labor Code Ann. §§ 21.001-21.556 (Vernon 2006). Plaintiffs

also assert a pendent state-law claim for intentional infliction of

emotional distress. 

 

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2The court recounts the evidence in a light favorable to

plaintiffs as the summary judgment nonmovants and draws all

reasonable inferences in their favor. E.g., U.S. Bank Nat’l Ass’n

v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006)

(Fitzwater, J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000)). 

3

“Job share” positions involve two jobs that are combined, [P.

Resp. 11, ¶ 74] thus requiring plaintiffs to work at the DFW RT

Station as truck drivers for part of the day, take a two-to-three

hour break, and then travel at their own expense to the Addison

Station, where they would work as station couriers for the

remainder of the day.

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Katie is Caucasian and Ronnie is African-American. Both began

their careers at FedEx as part-time couriers and eventually

obtained full-time positions as Ramp Transport Drivers (“RTDs”) at

the Dallas-Fort Worth Ramp Transport Station (“DFW RT”).2 RTDs

transport unloaded freight from the ramp stations, where freight

has arrived via aircraft, to ground stations for sorting and final

delivery. At some point during their tenure, they began working

together and started dating. Plaintiffs allege that they were the

target of unwelcome comments, innuendo, and “open hostility” in the

workplace as early as November 1999. FedEx terminated their

employment in February 2004.

In February 2001 plaintiffs accepted “job share” RTD positions

at FedEx. Job share positions are in some ways less desirable than

non-job share positions,3 and plaintiffs aver that FedEx thwarted

their subsequent attempts to obtain more desirable non-job share

positions. FedEx twice denied Katie a promotion (once in 2001 and

again in 2002) to available “swing” driver positions because

 

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4Plaintiffs also allege that they were denied promotions to

full-time, “RTD/Shuttle” positions, the creation of which Katie had

proposed to management. They do not, however, mention this second

alleged denial of promotions in their response brief.

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——contrary to “station practice”——FedEx permitted more senior

employees from outside Katie’s workgroup to bid on the positions.

Plaintiffs assert that FedEx selected employees who were not known

to be involved in interracial relationships.

FedEx also denied plaintiffs promotions to full-time RTD

positions in August 2001,4 ostensibly because of minimum time

commitment clauses contained in their job share employment offer

letters. According to plaintiffs, these restrictions were a

pretext for discrimination, because FedEx relaxed similar

restrictions for other employees who were not known to be involved

in interracial relationships. Plaintiffs also allege that after

they obtained full-time RTD positions in March 2003, FedEx

wrongfully limited their work schedules to 40 hours per week.

 Plaintiffs assert that they were subjected to a racially

hostile work environment. Within months of their marriage, Katie

became the target of harassment at work. They maintain that Tony

Garrett (“Garrett”), Katie’s Freight Coordinator, began harassing

her in 2001 and continued doing so “through 2004" by giving her

onerous assignments, including requiring her to deliver packages in

other drivers’ areas, making inappropriate comments about her

relationship with Ronnie, and loading her freight backwards. After

 

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5Throughout this opinion the court uses the term interracial

“relationship” because the parties have done so. The court

recognizes, of course, that this “relationship” is primarily

plaintiffs’ marriage.

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Katie complained in September 2001 of Garrett’s harassment, manager

Mark Brendstrup (“Brendstrup”) monitored Garrett to ensure that

Katie’s freight was loaded correctly. Garrett was not disciplined,

however, for his conduct.

In February 2003 plaintiffs met with Harrison Hoof (“Hoof”),

a FedEx Senior Manager. Katie complained about workplace

harassment stemming from her involvement in an interracial

relationship5 with Ronnie. Plaintiffs assert that Hoof became

“visibly angry” in response to these allegations. FedEx managers

Sue Walsh (“Walsh”) and Vicki Peyton (“Peyton”) were present at the

meeting, but they failed to offer plaintiffs an “EEO packet” or to

report Katie’s complaint to the Human Resources Department.

Additionally, upon learning of Katie’s complaint, FedEx employees

Greg Arbet (“Arbet”) and Garrett cursed at plaintiffs and once

became physically violent with Ronnie in Brendstrup’s presence.

Katie’s vehicle was “sabotaged,” and FedEx driver Reginald Terry

(“Terry”) threw Katie’s personal belongings to the ground and told

her, using profane language, to stay out of his truck, despite the

fact that Katie had been assigned the truck for the day. Katie

asserts that she complained to management about the harassment, but

no action was taken. She was given documented counseling for

 

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allegedly calling Garrett “a snake.”

Plaintiffs maintain that Ronnie was given contradictory

instructions from managers Walsh and Peyton, and was then

disciplined and criticized for performance failures. They aver

that Walsh told Ronnie he was not ever required to pick up freight

at other stations, but Peyton required Ronnie to do so late in the

evening. Ronnie also alleges that when he called Peyton to ask her

about schedule changes, she told him never to question her

decisions and yelled at him for calling her at home, despite the

fact that Peyton had previously circulated a memo directing drivers

to call managers at home if they had any scheduling problems.

Ronnie reported Peyton’s allegedly harassing behavior to District

Manager Glen Corbin (“Corbin”), but Ronnie received documented

counseling as a result. Plaintiffs allege that, shortly

thereafter, Terry cursed at Ronnie, Ronnie complained to Walsh, but

no disciplinary action was taken. Ronnie then met with Peyton,

Hoof, and Walsh concerning Peyton’s harassing behavior, which

included making repeated changes to Ronnie’s schedule, in violation

of FedEx policy.

Plaintiffs maintain that Peyton then attempted to get Ronnie

fired by asking other employees to make false statements, including

that Ronnie had been physically violent. Ronnie complained to Ed

Harvey (“Harvey”), a Human Resources representative, and took

stress leave in July 2003. Ronnie filed a FedEx EEO complaint

 

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against Peyton that same month, and he discussed the matter with

another FedEx Human Resources representative, Ann Richardson

(“Richardson”), who said she would investigate his claim.

Plaintiffs assert that Richardson never spoke with any of Ronnie’s

witnesses.

Plaintiffs allege that, after Ronnie complained of harassment,

FedEx targeted him for disciplinary action. Walsh gave him a

Performance Reminder letter, purportedly for mis-delivering a U.S.

Airways package, but there are no documents that indicate that

Ronnie ever possessed a U.S. Airways package on the day of the

alleged mis-delivery. Other FedEx employees who were not involved

in interracial relationships, and who had not filed EEO complaints,

regularly mis-delivered packages without receiving Performance

Reminder letters. FedEx continued to document Ronnie for purported

performance deficiencies, while other employees at the DFW RT

station were not similarly disciplined. 

In December 2003 FedEx terminated Ronnie based on his

receiving three disciplinary letters, but he had in fact only

received two. After he appealed under the FedEx Guaranteed Fair

Treatment Process (“GFTP”), FedEx temporarily reinstated him

pending an investigation, in accordance with FedEx policy. FedEx

conducted a three-week investigation of Ronnie and Katie’s conduct,

and in February 2004 both were terminated. FedEx found that they

had driven more than five miles outside their delivery areas for

 

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6FedEx also moves to strike parts of plaintiffs’ evidence.

The court denies the motion infra at § XI.

7

The court originally referred this motion to the magistrate

judge for recommendation. Review of the magistrate judge’s

findings and recommendation on a summary judgment motion is de

novo. See 28 U.S.C. § 636(b)(1)(B); Abbeville Gen. Hosp. v.

Ramsey, 3 F.3d 797, 801 (5th Cir. 1993) (addressing circuit court

review of district court summary judgment ruling). The court

therefore decides the motion anew, as if the motion had not been

referred for recommendation in the first place. See Mills v. Davis

Oil Co., 11 F.3d 1298, 1300 (5th Cir. 1994) (addressing appellate

standard) (“The standard of review at the appellate level of a

district court’s grant of summary judgment requires the same

analysis as employed by the trial court.”). Accordingly, although

the court often agrees after de novo review with all or substantial

parts of magistrate judge recommendations regarding summary

judgment motions, in this case the court concludes that the summary

judgment motion should be analyzed afresh. The court therefore

will not discuss the magistrate judge’s July 20, 2006 findings and

recommendation or the parties’ briefing regarding defendant’s

objections thereto. Instead, the court will decide the motion on

the original briefing, as if it had never been referred. In doing

so, the court adopts as its own the magistrate judge’s January 30,

2006 order striking defendant’s January 13, 2006 supplemental

appendix and denying as moot plaintiffs’ motion for leave to file

a surreply and supplemental evidentiary appendix. The court would

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breaks, falsified their time cards for hours worked, and falsified

their delivery records. Plaintiffs contend that these reasons were

pretexts for discrimination, because other employees who engaged in

the same or similar conduct, but who were not involved in

interracial relationships, were not disciplined or discharged.

They also allege that management intentionally set them up for

termination by giving them fewer total stops, and more stops near

their home, thus encouraging them to go home for lunch.

FedEx moves for summary judgment dismissing all of plaintiffs’

claims.6 Plaintiffs oppose the motion.7

 

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have entered the same order.

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II

Before turning to the merits, the court addresses a procedural

issue that arises from the parties’ method of briefing the motion.

Defendant filed this motion on November 29, 2005, and briefing

concluded on January 13, 2006. The magistrate judge filed his

findings and recommendation on July 20, 2006, and the court is

deciding the motion today. Part of the delay in deciding the

motion is attributable to how the parties have briefed it.

Defendant’s brief begins with just over 48 pages of 273 separately

numbered “undisputed material facts.” See D. Br. 1-48.

Plaintiffs’ brief begins with nearly 50 pages of 362 separately

numbered “genuine issues of material facts.” See Ps. Br. 1-50.

The briefs of both sides are generally inadequate in connecting

these voluminous pages of so-called undisputed/genuinely disputed

facts to the parties’ legal arguments. 

Since this court amended its local summary judgment rules in

1998, the court has regularly pointed out the defects in this

method of briefing summary judgment motions. For example, in Bowe

v. Exide Corp., 2001 WL 705881 (N.D. Tex. June 19, 2001)

(Fitzwater, J.), the court quoted from an earlier decision in James

v. City of Forney, No. 3:99-CV-0354-D (N.D. Tex. Feb. 14, 2001)

(Fitzwater, J.), which was addressed to a defective brief submitted

by the summary judgment movants: 

 

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In their brief, defendants set out 17 pages of

numerically listed contentions of fact and

law. This effort appears to be a throwback to

former N.D. Tex. Civ. R. 56.1, which stated:

“A motion for summary judgment must list in

numerical order: (1) the undisputed facts upon

which the motion relies; and (2) the issues of

law.” Rule 56.1 was simply a restatement of

Local Rule 5.2(a) (repealed 1997), which had

long imposed the same requirement. In 1998,

however, this court extensively revised its

summary judgment local rules. One revision

eliminated the requirement that a summary

judgment movant list in numerical order the

undisputed facts and the issues of law. The

reason for abrogating the Rule is aptly

illustrated in the present case. Defendants’

multi-page list of contested facts and law,

set out separately from their substantive

arguments, provides the court little

assistance in deciding defendants’ motion.

The list itself does not make clear why the

contentions are substantively significant.

And defendants’ citations to specific factual

and legal contentions require the court to

move back and forth through the brief to link

them up rather than allow the court to

consider the contentions within the confines

of the relevant arguments. With the advent of

the 1998 summary judgment local rules, a brief

in support of a motion for summary judgment

should look more like an appellate brief, with

assertions about the evidence and law set out

under an argument heading that states clearly

and with particularity why summary judgment is

warranted on the basis asserted.

Id. at *2 (some citations omitted) (quoting James, No. 3:99-CV0354-D, at 3 n.5). The court also addressed in Bowe the

nonmovant’s defective response brief:

[W]hat the court said in James is worth

repeating in the context of a summary judgment

opposition brief, since it bears significantly

on the court’s ability to decide summary

judgment motions with dispatch: “With the

 

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advent of the 1998 summary judgment local

rules, a brief in [opposition to] a motion for

summary judgment should look more like an

appellate brief, with assertions about the

evidence and law set out under an argument

heading that states clearly and with

particularity why summary judgment is [not]

warranted on the basis asserted.”

Id. (brackets in original) (citation omitted).

In the present case, the court has had to engage in

considerable flipping back and forth between voluminous pages of

so-called undisputed/genuinely disputed facts and legal arguments

to understand why the listed facts are substantively significant

and to determine whether they support a party’s assertion

concerning the summary judgment record. The court has found it

necesary to “move back and forth through the brief[s] to link them

up rather than . . . to consider the contentions within the

confines of the relevant arguments.” Id. To avoid additional

delay that would result by requiring re-briefing, the court has

undertaken this task in this case. But given the passage of time

since this court adopted improved summary judgment rules in 1998,

this court may show less tolerance for such briefing deficiencies

in future cases.

III

A

FedEx contends that it is entitled to summary judgment

dismissing some of plaintiffs’ Title VII claims as barred by

limitations. It points out that plaintiffs filed their charges of

 

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8

In FedEx’s briefing, the discriminatory discipline claim is

also referred to as a discriminatory suspension claim. For

clarity, unless the context requires otherwise, the court will

refer to it as a discriminatory discipline claim because the

parties use the term “discipline” in the captions of their

respective arguments.

After reviewing plaintiffs’ summary judgment response brief,

the court concludes that their Title VII/§ 1981 discipline claim

relates only to discipline taken against Ronnie, and it pertains to

his one-week suspension and to his receipt of Performance Reminders

that led to his termination. The court holds that the discipline

claim consists of a suspension component, which FedEx does not

challenge as untimely, and a component that essentially merges with

plaintiffs’ claim of discriminatory termination, which FedEx

likewise does not contend is time-barred. Accordingly, the court

need not decide whether there are other components of plaintiffs’

Title VII-based discriminatory discipline claim that are barred by

limitations.

9

FedEx states that plaintiffs’ “§ 1981 race discrimination

claims are timely as to any discrete events that occurred before

June 3, 2000.” D. Br. 52. FedEx appears to assume that a fouryear limitations period applies, because June 3, 2000 precedes by

four years the date plaintiffs filed this suit: June 3, 2004.

(FedEx also appears to use the word “timely” when it means

“untimely.”) Because Texas is the forum state for this suit,

however, the court concludes that a two-year limitations period

applies to plaintiffs’ § 1981 claims. 

Because § 1981 does not contain a statute of limitations,

courts use the most analogous statute of limitations of the forum

state. Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987);

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San

Antonio, Tex., 40 F.3d 698, 713 n.22 (5th Cir. 1994). The most

analogous state statute of limitations is the one for personal

injury tort actions. Goodman, 482 U.S. at 661-62. Therefore, the

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discrimination with the Equal Employment Opportunity Commission

(“EEOC”) on March 5, 2004, and it maintains that they cannot

recover for any discrete incidents that occurred before May 10,

2003. FedEx posits that only plaintiffs’ discriminatory

termination claim, and the suspension component of Ronnie’s

discriminatory discipline claim,8 occurred after May 10, 2003.9

 

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court applies Texas’s general personal injury limitations period of

two years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a)

(Vernon 2005). 

- 12 -

Plaintiffs offer the conclusory response that, under a

continuing violation theory, none of their Title VII claims is

time-barred. They appear to maintain that, because in August 2002

Katie complained to her manager, Brendstrup, of disparate treatment

due to her and Ronnie’s interracial relationship, conduct that

precedes May 10, 2003 is not barred by limitations.

FedEx replies that the continuing violation doctrine does not

apply to any Title VII claims based on discrete acts that occurred

outside the statutory period.

B

Plaintiffs base their Title VII claim on acts that occurred

both before and after May 10, 2003. 

In deferral states such as Texas, an

aggrieved party must file her EEOC charge

within 300 days after the alleged unlawful

practice occurred. The 300-day filing period

is not jurisdictional, but rather is more akin

to and operates as a limitations period. The

period commences on the date the alleged

unlawful practice occurred. 

Stith v. Perot Sys. Corp., 2004 WL 690884, at *3 (N.D. Tex. Mar.

12, 2004) (Fitzwater, J.) (footnote and citations omitted), aff’d,

122 Fed. Appx. 115 (5th Cir. 2005) (unpublished opinion). 

The “continuing violation” doctrine is an “equitable exception

to the statutory period.” Davis v. Metwest, 1999 WL 102814, at *2

 

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(N.D. Tex. Feb. 24, 1999) (Fitzwater, J.) (citing Waltman v. Int’l

Paper Co., 875 F.2d 468, 474 (5th Cir. 1989)). “Although there is

no definitive standard for what constitutes a continuing violation,

the plaintiff seeking to invoke this doctrine must demonstrate more

than a series of discrete discriminatory acts[.]” Celestine v.

Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001).

“‘He must show an organized scheme leading to and including a

present violation, such that it is the cumulative effect of the

discriminatory practice, rather than any discrete occurrence, that

gives rise to the cause of action.’” Id. (quoting Huckabay v.

Moore, 142 F.3d 233, 239 (5th Cir. 1998)). “[A] one-time

employment event, including the failure to hire, promote, or train

and dism[iss]als or demotions is ‘the sort of discrete and salient

event that should put the employee on notice that a cause of action

has accrued.’” Id. (quoting Huckabay, 142 F.3d at 240).

“‘[D]iscrete adverse actions, although racially motivated, cannot

be lumped together with the day-to-day pattern of racial

harassment’ and therefore, if otherwise untimely, cannot be saved

by the continuing violation doctrine.” Id. (quoting Huckabay, 142

F.3d at 240).

Apart from Title VII-based discriminatory termination claim

and the discriminatory discipline (suspension) claim——which FedEx

concedes are timely——plaintiffs allege claims for failure to

 

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10Because plaintiffs include a disparate pay claim in their

first amended original complaint, FedEx addresses the claim in its

summary judgment motion. Plaintiffs have not, however, responded

to this part of FedEx’s motion, and it appears they do not intend

to prosecute a pay-based claim. To the extent they do, FedEx is

entitled to summary judgment dismissing it. Although plaintiffs’

failure to respond does not permit the court to enter a “default”

summary judgment in favor of FedEx, see, e.g., Tutton v. Garland

Independent School District, 733 F. Supp. 1113, 1117 (N.D. Tex.

1990) (Fitzwater, J.), plaintiffs have failed to adduce evidence

that would permit a reasonable trier of fact to find in their

favor. Accordingly, the court will not address further in this

opinion a pay-based discrimination claim.

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promote, hostile work environment, and retaliation.10 Plaintiffs’

discriminatory failure to promote claims are based on discrete

events that occurred outside the 300-day statutory window and are

therefore time-barred. Plaintiffs allege that FedEx failed to

promote them in 2001 and 2002. “An employer’s failure to promote

an employee is a discrete event that ‘cannot constitute a

continuing violation under prevailing precedent.’” Blackman v. City

of Dallas, 2006 WL 1816390, *6 (N.D. Tex. 2006) (Sanders, J.)

(quoting Blackman v. City of Dallas, 2001 WL 182752, *2 (N.D. Tex.

2001) (Solis, J.), aff'd, 33 Fed. Appx. 704 (5th Cir. 2002)

(unpublished opinion)). Plaintiffs cannot recover under Title VII

based on FedEx’s failure to promote them, because these claims are

time-barred.

The court need not address whether plaintiffs’ hostile work

environment claims are timely under Title VII. Assuming arguendo

that they are, for the reasons explained infra at § IX, the court

holds that the claims fail on the merits. 

 

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Nor need the court decide whether Katie’s Title VII

retaliation claim is time-barred, because it holds infra at § IV(B)

that she did not exhaust it. As to Ronnie’s Title VII-based

retaliation claim, the court holds that all the bases for this

claim that survive summary judgment, see infra at § VIII, either

occurred after May 10, 2003 or there is a genuine issue of material

fact whether the retaliatory conduct (i.e., Peyton’s actions

following the February 2003 meeting) continued past May 10, 2003.

The court thus denies FedEx’s motion to the extent it seeks

dismissal of Ronnie’s Title VII-based retaliation claim as timebarred. 

IV

FedEx maintains that some of Katie’s Title VII claims and

both plaintiffs’ THRCA claims have not been exhausted and are

therefore barred. Apart from the Title VII-based discriminatory

termination and discipline claims, which are not now at issue,

plaintiffs respond that they can recover based on FedEx’s failing

to promote them, subjecting them to a hostile work environment,

and retaliating against them. The court will address FedEx’s

exhaustion arguments in the context of these three claims.

A

The court initially examines FedEx’s argument concerning Title

VII. FedEx contends that because Katie’s EEOC charge only alleges

discriminatory termination, she is precluded from bringing any

 

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11The EEOC declined to accept plaintiffs’ retaliation

amendments because they were offered after the EEOC’s final

determination in the case on March 5, 2004.

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other claim under Title VII. Plaintiffs respond by relying on the

irrelevant assertions that they advised FedEx of their concerns

about harassment and disparate treatment by making verbal

complaints, requesting meetings with FedEx management, filing

harassment charges, sending emails and letters, providing

statements, appealing through the GFTP, and filing internal FedEx

EEO complaints. These arguments are inapposite, of course, because

“the purpose of a charge of discrimination is to trigger the

investigatory and conciliatory procedures of the EEOC.” Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). Private

complaints made to FedEx do not trigger the investigatory and

conciliatory procedures of the EEOC. 

Plaintiffs also argue that they filed two EEOC charges and

that FedEx’s reliance on the absence of checkmarks for

“retaliation” on their EEOC charges is specious, and they cite

their attempt——which the EEOC rejected as untimely11——to amend their

EEOC charges to include retaliation claims. Plaintiffs maintain

that a Title VII claim can encompass any matter that would

reasonably arise out of an investigation of their “amended” charge,

and that FedEx was on notice that they contended they were being

retaliated against for complaining of discrimination. FedEx

replies that notice of claims must be given in the EEOC charge and

 

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that any workplace conduct that occurred before the charge cannot

be sufficient notice and is irrelevant.

B

The scope of the exhaustion requirement has

been defined in light of two competing Title

VII policies that it furthers. On the one

hand, because the provisions of Title VII were

not designed for the sophisticated, and

because most complaints are initiated pro se,

the scope of an EEOC complaint should be

construed liberally. On the other hand, a

primary purpose of Title VII is to trigger the

investigatory and conciliatory procedures of

the EEOC, in attempt to achieve non-judicial

resolution of employment discrimination

claims. Indeed, a less exacting rule would

also circumvent the statutory scheme, since

Title VII clearly contemplates that no issue

will be the subject of a civil action until

the EEOC has first had the opportunity to

attempt to obtain voluntary compliance. With

that balance in mind, this court interprets

what is properly embraced in review of a

Title-VII claim somewhat broadly, not solely

by the scope of the administrative charge

itself, but by the scope of the EEOC

investigation which can reasonably be expected

to grow out of the charge of discrimination.

We engage in fact-intensive analysis of the

statement given by the plaintiff in the

administrative charge, and look slightly

beyond its four corners, to its substance

rather than its label.

Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006) (citations,

internal quotation marks, brackets, and emphasis omitted). “The

lawsuit that follows is limited in scope to the EEOC investigation

that could reasonably be expected to grow out of the charge of

discrimination. In other words, the complaint may encompass any

kind of discrimination ‘like or related to’ allegations contained

 

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in the EEOC charge.” Hayes v. MBNA Tech., Inc., 2004 WL 1283965,

at *6 (N.D. Tex. June 9, 2004) (Fitzwater, J.) (citations omitted).

As explained above, although Katie’s Title VII-based failure

to promote claim is time-barred, it is also precluded because she

did not exhaust it. Katie’s complaint alleges that she was

discriminated against based on race when she was discharged on

February 27, 2004. She complains only about being falsely accused

of driving more than five miles from her delivery area, falsifying

her timecard, and falsifying delivery records. There is no

complaint about a failure to promote her. Giving the EEOC

complaint a liberal construction, interpreting it somewhat broadly

according to the scope of the EEOC investigation that could

reasonably be expected to grow out of the charge of discrimination,

and considering its substance rather than its label, the court

holds that the EEOC investigation that could reasonably be expected

to grow out of the charge of discrimination would not include a

claim of failure to promote. See, e.g., Page v. Howard Indus.,

Inc., 2006 WL 3511454, at *3 (S.D. Miss. Dec. 5, 2006) (holding

that plaintiff’s failure to promote allegations were not contained

within EEOC Charge, that only allegation related to discriminatory

discharge, and that even giving EEOC charge a liberal construction,

court could not say that EEOC investigation of failure to promote

could reasonably be expected to grow out of charge of unlawful

termination, which was entirely different allegation based on

 

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entirely different set of facts); Burton v. Madix Store Fixtures,

2006 WL 247897, at *1 (N.D. Tex. Feb. 1, 2006) (Lindsay, J.)

(adopting magistrate judge recommendation that, inter alia, Title

VII plaintiff failed to exhaust administrative remedies regarding

failure to promote claim where there were no allegations in EEOC

charge regarding failure to promote).

The court need not decide whether Katie’s hostile work

environment claim is properly exhausted in view of its holding

infra at § IX that the claim fails on the merits. If the court

were to address exhaustion in this context, however, it would

conclude that Katie failed to exhaust her hostile work environment

claim. Katie’s EEOC charge does not mention that she was subjected

to a hostile work environment or allege any facts that, liberally

construed, could reasonably be expected to lead to the

investigation of such a claim. See, e.g., Hayes, 2004 WL 1283965,

at *7 (holding that EEOC charge that complained of denial of

promotions, unequal pay, and race discrimination did not exhaust

hostile work environment claim, that passages on which plaintiff

relied were not like or related to claim of racially hostile work

environment, and that EEOC investigation of such claim could not

reasonably be expected to grow out of the charge).

Finally, the court holds that Katie did not exhaust her

retaliation claim. The EEOC rejected plaintiffs’ attempts to amend

 

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12Plaintiffs’ request to amend their EEOC charge is not the

functional equivalent of an affidavit or response to an EEOC

questionnaire that could be sufficient to exhaust a claim that is

not set out in the EEOC charge itself. This is because the EEOC

rejected plaintiffs’ attempt to amend as untimely and therefore did

not consider the amendment. In the case of an affidavit or

response to an EEOC questionnaire, these documents are properly

before the EEOC and thus part of the conciliation process.

- 20 -

their charges.12 Katie’s charge complains only of discrimination

based on her termination. She did not check the retaliation box on

her charge and did not complain of retaliation in her EEOC charge.

Although plaintiffs correctly discount the mere failure to check

the retaliation box, see Pacheco, 448 F.3d at 792 (“To be clear, we

do not require that a Title-VII plaintiff check a certain box or

recite a specific incantation to exhaust his or her administrative

remedies before the proper agency.”), they fail to establish that

the charge itself or other materials timely and properly presented

to the EEOC show that Katie exhausted her retaliation claim. She

therefore failed to exhaust this claim. See, e.g., Hayes, 2004 WL

1283965, at *8 (holding that plaintiff did not exhaust retaliation

claim where she did not check retaliation box on EEOC charge and

did not mention word retaliation or explicitly assert

retaliatory-type conduct in attachment to EEOC questionnaire);

Perez v. MCI World Com Commc’ns, 154 F.Supp.2d 932, 938 (N.D. Tex.

2001) (Buchmeyer, J.) (“Plaintiff did not check the ‘retaliation’

box on the Charge, nor did she include any statements [in her

charge or questionnaire] regarding retaliation. Therefore,

 

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13The discipline claim is based on conduct directed at Ronnie.

14As part of its argument, FedEx contends that plaintiffs

cannot recover under the TCHRA because they did not receive a THCRA

right-to-sue letter. The court understands this assertion to be

offered as a component of the contention that plaintiffs did not

exhaust their administrative remedies rather than as the basis for

this assertion. Texas courts hold that it is the entitlement to a

right-to-sue letter rather than the receipt of the letter that

exhausts the complainant’s administrative remedies. See, e.g.,

Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App. 2004,

pet. denied). Plaintiffs’ failure to receive a right-to-sue letter

is insufficient of itself to warrant dismissing their THCRA-based

- 21 -

Plaintiff failed to exhaust her administrative remedies for the

claim of retaliation . . . .”). And because she complains of

retaliatory acts that preceded the filing of her EEOC charge, she

does not fall within the exception that applies when a person

complains of retaliation for filing the EEOC charge itself. See

Hayes, 2004 WL 1283965, at *9. “Where the alleged retaliation

occurs before the initial EEOC charge is filed, a plaintiff must

exhaust his administrative remedies on that claim.” McCray v. DPC

Indus., Inc., 942 F. Supp. 288, 295 (E.D. Tex. 1996).

Accordingly, the court holds that Katie exhausted her Title

VII-based termination claim13 but not her promotion, hostile work

environment, or retaliation claim, and these components of her

Title VII action are dismissed.

C

FedEx maintains that the court lacks subject jurisdiction over

both plaintiffs’ TCHRA claims because they failed to exhaust their

administrative remedies.14 Plaintiffs have not responded to this

 

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claims. Nevertheless, for reasons the court explains, FedEx

correctly maintains that plaintiffs failed to exhaust their

administrative remedies. Moreover, even if the court were to hold

that FedEx failed to shift the burden, it would still raise the

issue sua sponte because it pertains to the court’s subject matter

jurisdiction. See, e.g., Hayes, 2004 WL 1283965, at *2 (“[T]his

court is obligated, sua sponte if necessary, to note a lack of

subject matter jurisdiction . . . .”) (citing In re Bowman, 821

F.2d 245, 246 (5th Cir. 1987)). 

15In its reply brief, FedEx asserts that plaintiffs have failed

to establish that they requested a right-to-sue letter from the

TCHR. Assuming arguendo that the argument was properly raised, the

court need not consider it.

- 22 -

ground of FedEx’s motion, and the court grants summary judgment

dismissing plaintiffs’ TCHRA-based claims.15

“The THCRA requires the exhaustion of state remedies as a

jurisdictional prerequisite.” Jones v. Grinnell Corp., 235 F.3d

972, 974 (5th Cir. 2001) (citing Schroeder v. Tex. Iron Works,

Inc., 813 S.W.2d 483, 485 (Tex. 1991)). “If a complainant fails to

exhaust his state administrative remedies, the Texas Human Rights

Act jurisdictionally bars this court from hearing the case

regardless of equitable and policy concerns.” Id. (citing Zevator

v. Methodist Hosp. of Houston, 1995 WL 500637, at *2 (S.D. Tex.

Mar. 30, 1995); Ridgway’s Inc. v. Payne, 853 S.W.2d 659, 663 (Tex.

App. 1993, no writ)).

“In order to comply with this exhaustion requirement, an

employee must: (1) file a complaint with the TCHR within 180 days

of the alleged discriminatory act; (2) allow the TCHR to dismiss

the complaint or resolve the complaint within 180 days before

 

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16Although exhaustion can occur before the expiration of the

180-day period if the charge is dismissed, see Tex. Lab. Code. Ann.

§ 21.208, plaintiffs have not responded to this ground of FedEx’s

motion and have thus failed to adduce evidence that the TCHR in

fact dismissed their charges before they filed suit.

17Because the court has dismissed plaintiffs’ TCHRA-based

claims, the termination claim is necessarily based on Title VII and

§ 1981.

- 23 -

filing suit; and (3) file suit no later than two years after the

complaint is filed.” Wiltshire v. Humpal Physical Therapy, P.C.,

2005 WL 2091092, at *2 (Tex. App. Aug. 31, 2005, no pet.)

(unpublished opinion); City of Houston v. Fletcher, 63 S.W.3d 920,

922 (Tex. App. 2002, no pet.). A complaint filed with the EEOC,

and forwarded by the EEOC to the TCHR, satisfies the requirements

of the TCHRA. Price v. Philadelphia Am. Life Ins. Co., 934 S.W.2d

771, 773-74 (Tex. App. 1996, no writ). “[E]xhaustion occurs when

the complainant files a timely charge with the commission and waits

181 days to file suit.” City of Houston, 63 S.W.3d at 922.

In this case, plaintiffs filed their EEOC charges on March 5,

2004. They filed this lawsuit on June 3, 2004. They did not wait

181 days before filing suit. They thus failed to exhaust their

administrative remedies under the TCHRA, and their claims are

dismissed without prejudice for lack of subject matter

jurisdiction.16

V

FedEx moves for summary judgment dismissing plaintiffs’

termination claims under Title VII and § 1981.17

 

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A

Under Title VII, it is “an unlawful employment practice for an

employer . . . to discharge any individual . . . because of such

individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section 1981

guarantees “[a]ll persons within the jurisdiction of the United

States . . . the same right . . . to make and enforce contracts”

regardless of race. 42 U.S.C. § 1981(a). “Claims of racial

discrimination brought under § 1981 are governed by the same

evidentiary framework applicable to claims of employment

discrimination brought under Title VII.” LaPierre v. Benson

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

Because FedEx will not have the burden of proof at trial on

plaintiffs’ claims, it can meet its summary judgment obligation by

pointing the court to the absence of evidence to support them. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it does

so, plaintiffs must then go beyond their pleadings and designate

specific facts showing there is a genuine issue for trial. See id.

at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (per curiam). An issue is genuine “if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Summary judgment is mandatory if plaintiffs fail to

meet this burden. Little, 37 F.3d at 1076. 

In the context of a Title VII/§ 1981 race discrimination

 

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- 25 -

claim, each plaintiff must present sufficient direct or

circumstantial evidence that would permit a reasonable trier of

fact to find that his or her race was a motivating factor in the

decision to discharge him or her. See, e.g., Roberson v. Alltel

Info. Servs., 373 F.3d 647, 652 (5th Cir. 2004) (addressing Title

VII claims for race, color, religion, sex, or national origin

discrimination). “‘Direct evidence is evidence that, if believed,

proves the fact of discriminatory animus without inference or

presumption.’” West v. Nabors Drilling USA, Inc., 330 F.3d 379,

384 n.3. (5th Cir. 2003) (Fitzwater, J.) (age discrimination case)

(quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th

Cir. 2002)). A plaintiff who offers “sufficient direct evidence of

intentional discrimination should prevail, just as in any other

case where a plaintiff meets his burden.” Nichols v. Loral Vought

Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996) (citing Portis v. First

Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328 n.6 (5th Cir.

1994)). Because, as the court explains below, plaintiffs have not

adduced direct proof of race discrimination, they must rely on

circumstantial evidence.

If direct evidence is unavailable, plaintiffs can prove

discrimination using the “modified McDonnell Douglas approach.”

Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)

(age discrimination case). As modified, McDonnell Douglas consists

of three stages. First, plaintiffs must establish a prima facie

 

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- 26 -

case of discrimination, which “creates a presumption that [FedEx]

unlawfully discriminated against [them].” Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254 (1981). The burden then

shifts to FedEx to articulate a legitimate, nondiscriminatory

reason for discharging them. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506-07 (1993). FedEx’s burden is one of production, not

proof, and involves no credibility assessments. See, e.g., West,

330 F.3d at 385. Finally, if FedEx meets its production burden,

then plaintiffs may proceed under one of two alternatives: the

pretext alternative or the mixed-motives alternative. See Rachid,

376 F.3d at 312. Under the pretext alternative, plaintiffs must

“offer sufficient evidence to create a genuine issue of material

fact . . . that [FedEx’s] reason is not true, but is instead a

pretext for discrimination.” Id. (internal quotations omitted).

Under the mixed-motives alternative, plaintiffs must offer

sufficient evidence to create a genuine issue of material fact

“that [FedEx’s] reason, while true, is only one of the reasons for

its conduct, and another motivating factor is [plaintiffs’]

protected characteristic[.]” Id. (internal quotations omitted).

B

To establish a prima facie case of discriminatory discharge

under Title VII and § 1981, plaintiffs must show that they (1) are

members of a protected class, (2) were qualified for the position,

(3) were subject to an adverse employment action, and (4) were

 

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- 27 -

replaced by someone outside the protected class, or, in the case of

disparate treatment, show that other similarly situated employees

were treated more favorably. Bryan v. McKinsey & Co., 375 F.3d

358, 360 (5th Cir. 2004) (addressing discharge-based § 1981

claims); see also Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th

Cir. 2005). FedEx contends that plaintiffs have not met their

obligation of establishing a prima facie case of discriminatory

termination because they cannot show that members of other groups

received more favorable treatment, that is, that any similarly

situated employee was treated differently. Specifically, FedEx

posits that plaintiffs cannot identify any other RTD employee who

engaged in nearly identical misconduct and was not discharged.

FedEx refers to “all three instances of misconduct” without further

specification, and it characterizes the misconduct as plaintiffs’

effort “to systematically eat lunch at home for extended periods on

almost a daily basis.” D. Br. 54. The court assumes that FedEx is

referring to the Management Rationales for terminating plaintiffs’

employment: (1) falsification of time cards, (2) driving more than

five miles from the last delivery area for a break, (3) and logging

deliveries while at home instead of at the point of delivery.

FedEx argues that although plaintiffs may be able to identify RTDs

who committed one of these violations——falsified a time card,

falsified a delivery record, or went home for lunch——they cannot

name a single RTD who consistently violated each policy merely to

 

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- 28 -

stay at home for an extended lunch break, most of which was on the

clock.

FedEx contends in the alternative that, even if the court

assumes that plaintiffs have established a prima facie case, FedEx

has articulated a legitimate, nondiscriminatory reason for

terminating their employment——the three-prong rationale on which it

relied to discharge them——and plaintiffs cannot present substantial

evidence of pretext or establish that their involvement in an

interracial relationship was a factor that motivated FedEx to

terminate their employment.

Plaintiffs respond that a reasonable jury could find that the

alleged misconduct on which FedEx relies was commonplace and

accepted or disregarded; that FedEx management could not define the

parameters of plaintiffs’ (or perhaps any) delivery areas and that

plaintiffs consequently did not travel outside their areas; that

FedEx has offered inconsistent explanations for concluding that

plaintiffs had violated company policy by being out of their areas,

or explanations that a jury could find were false; that FedEx has

since changed its policy concerning whether deliberate

falsification of documents is a dischargeable offense; that FedEx’s

response (a full-blown investigation rather than informal

corrective action) reflects discriminatory animus; and that at

least four employees——Greg Behm (“Behm”), Ricky Busch (“Busch”),

Arbet, and Lorna Williamson (“Williamson”)——have engaged in the

 

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- 29 -

same three instances of conduct. In sum, plaintiffs argue that

FedEx selectively enforced certain policies against them. They

cite examples of FedEx RTD drivers who each allegedly engaged in

misconduct that is the same or similar to plaintiffs’, but who were

not discharged as a result.

FedEx replies that plaintiffs have not identified a single

“nearly identical” comparator, because they have not named one RTD

who consistently violated each policy merely to stay home for an

extended lunch break, most of which was on the clock.

C

The court decides first whether plaintiffs have met their

burden of demonstrating a prima facie case. To “establish a prima

facie case, a plaintiff need only make a very minimal showing.”

Nichols, 81 F.3d at 41 (quoting Thornbrough v. Columbus &

Greenville R.R. Co., 760 F.2d 622, 639 (5th Cir. 1985)). Moreover,

“a plaintiff may make [the prima facie] showing by demonstrating

either that he was replaced by someone outside the protected class

or that other similarly situated employees outside the protected

class were treated more favorably.” Wheeler, 415 F.3d at 405

(citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d

507, 512-13 (5th Cir. 2001)). 

The “similarly situated” requirement has been strictly

interpreted to mean “nearly identical.” E.g. Ryburn v. Potter, 155

Fed. Appx. 102, 107 (5th Cir. 2005) (per curiam) (unpublished

 

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18FedEx essentially treats this as a work-rule violation case

on the basis that it discharged plaintiffs for violating FedEx

policies. “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.’” Mayberry v. Vought

Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting Green v.

Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (per

curiam)). Plaintiffs contend, inter alia, that similarly situated

employees who were not known to be engaged in interracial

relationships were treated more favorably. This showing, if

supported by the evidence, is sufficient under the work-rule

paradigm and under the fourth element of the disparate treatment

formulation, which permits the alternative showing that similarlysituated employees of a different race were treated more favorably.

- 30 -

opinion) (quoting Wyvill v. United Cos. Life Ins. Co., 212 F.3d

296, 304 (5th Cir. 2000)); Torrez v. Milk Products L.P., 402

F.Supp.2d 773, 778 (W.D. Tex. 2005). Therefore, to establish a

prima facie case, a Title VII/§ 1981 plaintiff must show that

others who engaged in “nearly identical” misconduct were not

discharged.18 See, e.g., Little v. Republic Refining Co., 924 F.2d

93, 97 (5th Cir. 1991); Smith v. Wal-Mart Stores, 891 F.2d 1177,

1180 (5th Cir. 1990) (quoting Davin v. Delta Air Lines, Inc., 678

F.2d 567, 570 (5th Cir. 1982)). 

The court holds that plaintiffs have established a prima facie

case of discriminatory termination. FedEx maintains that the only

relevant comparator for determining “nearly identical” misconduct

is an RTD who consistently violated each policy merely to stay at

home for an extended lunch break, most of which was on the clock.

The Management Rationale for Ronnie’s termination describes seven

 

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- 31 -

instances of time card falsification, seven instances of driving

more than five miles outside his delivery area, and at least one

instance of scanning a delivery at home instead of at the point of

delivery. Similarly, the Management Rationale for Katie’s

termination describes eight instances of time card falsification,

five instances of driving more than five miles outside her delivery

area, and at least one instance of scanning a delivery while at

home instead of at the point of delivery. The Management

Rationales do not rely on the premise that plaintiffs engaged in

misconduct in order “to systematically eat lunch at home for

extended periods on an almost daily basis.” In other words, the

evidence does not show that FedEx relied on the fact that

plaintiffs were going home or eating lunch as a reason to terminate

their employment.

Plaintiffs respond by adducing evidence that FedEx RTD

employees Behm, Arbet, and Williamson engaged in all three types of

purported misconduct, but they were not consequently discharged.

They cite multiple instances in which these employees scanned

deliveries at a location other than at the point of delivery, took

breaks more than five miles from the point of their last delivery,

and falsified time cards. Plaintiffs also adduce evidence that

none of these employees was terminated for such conduct. Finally,

plaintiffs appear to posit that FedEx’s rationale for their

termination is “false” because, inter alia, the purported

 

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- 32 -

misconduct in which plaintiffs are alleged to have engaged was in

fact “common practice” at the DFW RT station.

A reasonable trier of fact could find on the basis of the

foregoing that plaintiffs were discharged for engaging in nearly

identical misconduct as did Behm, Arbet, and Williamson, who were

not discharged. As noted, FedEx attempts to distinguish

plaintiffs’ misconduct from that of Behm, Arbet, and Williamson on

the basis that plaintiffs engaged in such misconduct for the

purpose or goal of systematically taking an extended lunch on an

almost daily basis. But this was not part of the stated Management

Rationale for discharging plaintiffs, and FedEx has not shown why

this distinction is material in resolving the question whether

nearly identical employees were treated differently. Because

establishing a prima facie case is not onerous, and viewing the

evidence favorably to plaintiffs, the court holds that they have

met their burden of establishing a prima facie case of

discriminatory termination.

D

Because plaintiffs have met their burden of establishing a

prima facie case, FedEx is obligated to produce evidence that it

had a legitimate, nondiscriminatory reason for terminating

plaintiffs’ employment. See Jackson v. Federal Exp. Corp., 2006 WL

680471, at *5 (N.D. Tex. Mar. 14, 2006) (Fitzwater, J.) (citing St.

Mary’s Honor Ctr., 509 U.S. at 506-07). FedEx relies on evidence

 

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- 33 -

that plaintiffs violated the company’s Acceptable Conduct Policy by

falsifying company documents and driving more than five miles

outside their delivery areas. Misconduct of this type constitutes

a legitimate, nondiscriminatory reason for terminating someone’s

employment. See, e.g., Moore v. Eli Lilly & Co., 990 F.2d 812, 816

(5th Cir. 1993) (holding that company’s belief that salesman had

falsified drug sample records was “undeniably a legitimate,

non-discriminatory reason for its termination of [his]

employment”); Mendez v. Dollar Tree Stores, Inc., 114 Fed. Appx.

149 (5th Cir. Nov. 22, 2004) (per curiam) (unpublished opinion)

(holding that continuing violations of company policy was

legitimate, nondiscriminatory reason for terminating employment).

E

Because FedEx has met its burden of production, plaintiffs are

obligated to adduce evidence that would permit a reasonable jury to

find that FedEx’s reasons for discharging them are a pretext, or to

show that their race was a factor that motivated the decision to

terminate them.

Plaintiffs appear to rely on the pretext alternative. Under

this approach, they may satisfy their burden by showing “that the

legitimate reasons offered by [FedEx] were not its true reasons,

but were a pretext for discrimination.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine,

450 U.S. at 253). That is, they must produce sufficient evidence

 

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- 34 -

for a reasonable jury to find either that FedEx’s proffered

explanation is unworthy of credence or that a discriminatory reason

more likely motivated FedEx’s decision to terminate them. See

Burdine, 450 U.S. at 256. “[T]he trier of fact may still consider

the evidence establishing the plaintiff[s’] prima facie case ‘and

inferences properly drawn therefrom . . . on the issue of whether

the defendant’s explanation is pretextual.’” Reeves, 530 U.S. at

143 (quoting Burdine, 450 U.S. at 255 n.10). 

Plaintiffs assert that FedEx’s “business justification is

false,” and they adduce evidence that, inter alia, the alleged

misconduct for which they were discharged was in fact “common

practice” at FedEx, and that other employees engaged in nearly

identical misconduct but were not disciplined or terminated as a

result. Plaintiffs also adduce evidence from which a reasonable

jury could find that FedEx’s proffered explanation is unworthy of

credence because time card falsification was not listed as a

“discharge offense” at the time of plaintiffs’ termination; that

FedEx at one point actually encouraged its employees to engage in

the “creative scanning” of packages at places other than the point

of delivery, and it may have failed to inform employees adequately

of the change in that policy; and that FedEx contrived the

purported policy against drivers’ going on break more than five

miles from their last delivery.

A reasonable jury could find based on this evidence that

 

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19Although the court has held that Katie did not exhaust her

failure to promote claim and that both plaintiffs’ Title VII

failure to promote claims are time-barred, § 1981 does not contain

an exhaustion requirement, see, e.g., Alpha Portland Cement Co. v.

Reese, 507 F.2d 607, 608-09 (5th Cir. 1975), and FedEx does not

move for summary judgment dismissing plaintiffs’ § 1981 claims

based on the limitations.

- 35 -

FedEx’s proffered explanation for terminating plaintiffs is

unworthy of credence and thus a pretext for discrimination. 

[T]he factfinder’s disbelief of the reasons

put forward by the defendant (particularly if

disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of

the prima facie case, suffice to show

intentional discrimination. Thus, rejection

of the defendant’s proffered reasons will

permit the trier of fact to infer the ultimate

fact of intentional discrimination, and . . .

[n]o additional proof of discrimination is

required.

St. Mary’s Honor Ctr., 509 U.S. at 511. The court accordingly

denies FedEx’s motion for summary judgment on plaintiffs’

discriminatory termination claim under Title VII and § 1981.

VI

FedEx maintains that plaintiffs cannot recover on the basis of

an allegedly discriminatory failure to promote them. Because

plaintiffs’ Title VII-based promotion claims are time-barred,

plaintiffs did not exhaust their TCHRA-based claims, and Katie did

not exhaust her Title VII-based failure to promote claim, these

claims are limited to § 1981.19 

Plaintiffs allege that each was denied a promotion to the

 

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20The parties dispute whether the jobs plaintiffs sought in

2001 and 2002 qualified as “promotions” or were instead “lateral

transfers.” The court uses the term “promotion” because it rejects

FedEx’s contention that a move to a non-job share position is a

“lateral transfer.”

21See, e.g., Jackson, 2006 WL 680471, at *9 (holding that court

is permitted to raise summary judgment sua sponte, provided it

provides nonmovants notice and a fair opportunity to file an

opposition response).

- 36 -

position of full-time, non-job share RTD.20 The first denial

occurred in 2001, when both Ronnie and Katie bid on the same

position. Katie was denied for a second time in 2002.

A

The court raises sua sponte that FedEx is entitled to

dismissal of plaintiffs’ 2001-based promotion claims because the

limitations period for their § 1981-based claims expired two years

later, in 2003, see supra at note 9, before plaintiffs filed suit

in 2004.21 Accordingly, the court gives plaintiffs 20 days from the

date of this memorandum opinion and order to file a brief in which

they state any basis on which they rely to contend that their 2001-

based failure to promote claims are not time-barred. They are not

required to file such a brief if they cannot demonstrate a viable

basis to avoid limitations. After considering their response brief

(or their decision not to file one), the court will either dismiss

this component of their claims or invite FedEx to file a reply.

 

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22The court is unable to discern from the record the exact date

of the 2002 denial, but the record suggests that the second

position for which Katie bid became available in August 2002. This

suggests that the 2002-based claim is timely under § 1981.

- 37 -

B 

The court now considers whether FedEx is entitled to summary

judgment dismissing Katie’s claim based on her failure to receive

a promotion in 2002.22

1

Although FedEx does not clearly differentiate how its

arguments apply to each plaintiff or to the 2001 and 2002 promotion

claims, it appears to rely on the following grounds to support

dismissal of Katie’s claim: she cannot establish that she was

qualified for the position because she was subject to a February

2001 job offer letter that stated that she could not apply for

shift bids for 12 months; she is relying on the denial of a lateral

transfer, not the denial of a promotion, which does not qualify as

an adverse employment action; and she cannot show that others who

were similarly situated were moved into the position she sought,

i.e., the person who obtained the position in 2002——Lester Newkirk

(“Newkirk”)——had more CEV points. FedEx also contends that, even

if Katie can establish a prima facie case, it has produced evidence

of a legitimate, nondiscriminatory reason for offering the

positions to Newkirk——restrictions on Katie’s ability to bid for

 

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23“CEV points are a composite score based on an employee’s

continuous service with FedEx and [his] performance review scores.”

D. Br. 24.

- 38 -

the position and Newkirk’s CEV points23——and Katie cannot show

pretext or racial motivation for FedEx’s decision because she would

have to show that she was clearly better qualified.

Plaintiffs respond that the change from a job share position

to a non-job share position is not merely a lateral transfer and

that they have established a genuine issue of material fact

regarding whether Newkirk was qualified to compete for the position

because he came from outside the work group.

2

FedEx’s first two grounds for obtaining summary judgment lack

force. Assuming that FedEx even intends that its argument

concerning the job offer letter apply to the 2002 promotion, see D.

Reply Br. 9 (stating that “[a]t the time the first non-job share

full-time RTD positions became available for which both Plaintiffs

applied, twelve months had not yet passed” (emphasis added)), a

reasonable jury could find that 12 months had elapsed before Katie

bid for the promotion in 2002. According to FedEx, the position

became available in August 2002. The time commitment in Katie’s

February 2001 offer letter expired before August 2002. 

And FedEx’s argument that Katie is seeking a “lateral

transfer” that does not qualify as adverse employment action fails

because FedEx is relying on Title VII retaliation cases to support

 

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24Moreover, the retaliation cases are now subject to

reexamination in light of a recent Supreme Court decision. See

infra at § VIII(B).

- 39 -

this contention, not discrimination cases.24

3

FedEx’s third argument addresses whether plaintiffs can show

that FedEx’s legitimate, nondiscriminatory reason for giving the

job to Newkirk (i.e., that he had move CEV points) is pretextual.

Plaintiffs respond that Katie was better qualified because she came

from within the work group and Newkirk did not. FedEx counters

that its written policy at the time permitted all employees under

the same Senior Manager to bid for an open position. 

The court concludes that there is a genuine issue of material

fact whether FedEx policy permitted someone outside the work group

to compete for the position. If the competitors were limited to

those within the work group, then Newkirk’s superior CEV point

total would not have made him more qualified for the position.

Accordingly, although there is evidence in the record that would

permit the jury to find that Newkirk was from the geographical area

(i.e., working under the same Senior Manager) that made him

eligible to bid on the new position, the court must deny summary

judgment as to Katie’s 2002-based failure to promote claim under

§ 1981.

 

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25As the court explains supra at note 8, to the extent

plaintiffs rely on Ronnie’s receipt of Performance Reminders, it

appears to be for the purpose of establishing that FedEx terminated

his employment based on race. Accordingly, the court addresses

only the question whether FedEx is entitled to summary judgment

dismissing plaintiffs’ claim based on Ronnie’s suspension.

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VII

Plaintiffs allege that FedEx violated Title VII and § 1981 by

suspending Ronnie for one week based on his race.25 This is

essentially a component of the termination claim, which perhaps

explains why plaintiffs do not address it specifically in their

summary judgment response brief. Although plaintiffs’ failure to

respond to FedEx’s motion insofar as it pertains to Ronnie’s oneweek suspension claim does not entitle the court to enter a

“default” summary judgment, the court is permitted to accept

FedEx’s evidence as true and undisputed. See, e.g., Tutton v.

Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990)

(Fitzwater, J.). Accordingly, the court dismisses plaintiffs’

suspension-based claim under Title VII and § 1981.

VIII

FedEx moves for summary judgment dismissing plaintiffs’

retaliation claims. Because Katie did not exhaust this claim under

Title VII or the TCHRA, her claim is brought only under § 1981.

Ronnie’s claim is based on Title VII and § 1981, although the

analysis of each is essentially the same.

 

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A

FedEx posits that plaintiffs allege the same acts in support

of their retaliation claims as they do for their disparate

treatment claims, and that neither plaintiff can establish that

there is a similarly situated employee who was treated differently.

FedEx also contends that plaintiffs cannot show that they engaged

in a protected activity until at least February or March 2003, when

Katie asked Hoof whether they were being denied non-job share fulltime positions because they were in an interracial relationship.

It posits that, before they were discharged, plaintiffs did not

complain to any manager or Human Resources representative that they

believed that any action was due to their being in an interracial

relationship. FedEx thus contends that plaintiffs cannot establish

a prima facie case of retaliation. Alternatively, it argues that

plaintiffs cannot show that the legitimate, nondiscriminatory

reasons it has adduced for plaintiffs’ termination were a pretext

for retaliation.

Plaintiffs respond that there is a suspicious temporal

proximity between the following protected activities and adverse

employment actions: (1) plaintiffs’ raising concerns in February

2003 of discrimination based on their interracial status and Hoof’s

outburst at them and their managers (Peyton and Walsh), and

 

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26Although in their brief plaintiffs refer to Peyton’s alleged

persecution of both Ronnie and Katie, see Ps. Br. 66, earlier in

the brief, see id. at 18-23, they cite only evidence to support the

premise that Peyton harassed Ronnie and that he complained about

her harassment. The court thus treats this argument as if limited

to Ronnie.

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Peyton’s persecution of Ronnie26; (2) the filing of Ronnie’s July

28, 2003 EEO complaint against Peyton and his subsequent

termination on December 16, 2003;(3) Katie’s complaints regarding

fear for her job and her concern about being considered “a mouth,”

and her termination two months later; (4) and Ronnie’s

reinstatement on January 7, 2004, for which Lee Roberts (“Roberts”)

was chastised, and Roberts’s decision five weeks later to engage in

a three-week long full-blown investigation of plaintiffs.

Plaintiffs posit that Roberts’s behavior is particularly suspect

because the conduct for which plaintiffs were investigated was

widely known and accepted by management as commonplace, and FedEx

did not follow the progressive disciplinary policy in their case.

B

The court analyzes plaintiffs’ retaliation claim under the

familiar burden-shifting paradigm. Plaintiffs must first establish

a prima facie case of retaliation. To do so, they must demonstrate

that (1) they engaged in a protected activity, (2) an adverse

employment action occurred, and (3) a causal link existed between

the protected activity and the adverse employment action. Walker

v. Norris Cylinder Co., 2005 WL 2278080, at *9 (N.D. Tex. Sept. 19,

 

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27“After the employer has produced evidence to rebut the

employee’s prima facie case of retaliation, the showing that the

plaintiff must make to establish causation is more onerous than

that initially required to present a prima facie case.” Phillips

v. Credit Lyonnais, 2002 WL 1575412, at *8 (N.D. Tex. July 16,

2002) (Fish, J.) (citing Sherrod v. American Airlines, 132 F.3d

1112, 1122 n.8 (5th Cir. 1998)); Long, 88 F.3d at 305 n.4).

“Although the court may consider proximity in time as a factor

supporting causation, proximity alone is a slender reed on which to

avoid summary judgment.” Id. (citing Underwood v. E. Tex. Univ.,

1998 WL 204624, at *7 (N.D. Tex. Apr. 15, 1998) (Fish, J.), aff’d,

182 F.3d 915 (5th Cir. 1999) (unpublished table decision)); id.

(citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th

Cir. 1995) (affirming summary judgment for employer despite

employee’s claim that causation was shown by proximity in time

between protected activity and adverse employment action); Shirley

v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992)

- 43 -

2005) (Fitzwater, J.) (citing Long v. Eastfield Coll., 88 F.3d 300,

304 (5th Cir. 1996)). “[T]iming can sometimes be a relevant factor

in determining whether a causal connection exists where the timing

between a protected activity and an adverse employment action is

‘suspicious[ly]’ proximate.” See Fabela v. Socorro Indep. Sch.

Dist., 329 F.3d 409, 418 n.9 (5th Cir. 2003) (quoting Shackelford

v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir.1999)). 

If plaintiffs establish a prima facie case, the burden then

shifts to FedEx to articulate a legitimate, nondiscriminatory

reason for the alleged retaliatory action taken. FedEx’s burden is

one of production, not of proof. 

If FedEx meets its production burden, plaintiffs must adduce

evidence that would permit a reasonable trier of fact to find that

the adverse employment action would not have occurred but for the

protected conduct. See Walker, 2005 WL 2278080, at *9.27 “At the

 

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(“Consideration of such dates is part of our analysis, but not in

itself conclusive of our determinations of retaliation.”)).

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summary judgment stage, the nonmovant need only point to the

existence of a genuine issue of material fact.” Id. (quoting Gee

v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)). “The ultimate

determination in an unlawful retaliation case is whether the

conduct protected by Title VII was a ‘but for’ cause of the adverse

employment decision.” Id. (quoting Long, 88 F.3d at 305 n.4). 

“Adverse employment actions include only ultimate employment

decisions such as hiring, granting leave, discharging, promoting,

or compensating.” Newman v. Coll. of Mainland, 2006 WL 3391445, at

*5 (S.D. Tex. Nov. 21, 2006). “The Supreme Court has recently

broadened the meaning of actionable adverse employment action for

the purposes of Title VII retaliation claims.” Rodriguez v.

Gonzalez, 2006 WL 2844185, at *4 (S.D. Tex. Oct. 2, 2006) (citing

Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___, 126 S.Ct.

2405 (2006)).

In [Burlington] the Court rejected the

“ultimate employment decision” standard——an

exclusive list of actions such as hiring,

[g]ranting leave, discharging, promoting and

compensating. The Court instead adopted the

broader “material adverse standard”——meaning

an action which might dissuade a reasonable

worker from making a charge of discrimination

or sexual harassment. The Fifth Circuit has

not had occasion to address whether this new

broader standard of adverse employment action

in Title VII retaliation claims will also

apply to § 1983 retaliation claims.

 

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Id. (citations omitted). Nor has the Fifth Circuit as yet

explicitly applied Burlington to a § 1981-based retaliation claim.

Because such claims are generally analyzed under the same framework

as are Title VII claims, and because § 1981 does not contain the

language that prompted the Fifth Circuit to give the Title VII

anti-retaliation clause a narrower reading in the first place, the

court will apply Burlington’s more expansive standard. The court

will deem to be an adverse employment action for purposes of

§ 1981-based retaliation any action that a reasonable employee

would have found to be materially adverse, that is, one that might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination. Burlington, 126 S.Ct. at 2415.

C

Plaintiffs maintain first that there is a suspicious proximity

between their raising concerns in February 2003 of discrimination

due to their interracial relationship and Hoof’s “outburst” at them

and their managers that immediately followed, and Peyton’s

subsequent persecution of Ronnie. Raising concerns of

discrimination with management is protected activity, and an

inference of retaliatory motive is permitted based on the close

temporal proximity between these events. But even under

Burlington, a reasonable jury could not find that Hoof’s single

outburst during the meeting, in which he allegedly “jumped up and

began ranting and raving and yelling ‘how dare you?’” is sufficient

 

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28This conclusion is not inconsistent with the court’s holding

below, see infra at § IX(C), that plaintiffs have failed to adduce

evidence that would permit a reasonable jury to find that Peyton’s

actions toward Ronnie subjected him to a racially hostile

environment. Conduct that is race neutral and thus inadequate to

constitute a racially hostile work environment can still qualify as

retaliatory conduct that the law forbids.

- 46 -

of itself to constitute an adverse employment action. In other

words, a reasonable jury could not find that a reasonable employee

would have found that Hoof’s isolated response, unaccompanied by

more concrete consequences, might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.

Plaintiffs have, however, established a prima facie case based

on Peyton’s alleged persecution of Ronnie shortly after the

February meeting. Under Burlington, such conduct——i.e., changing

his schedule, making false accusations against him, treating him

with hostility, and giving him additional assignments that were not

included in his original offer letter——could in combination

constitute an adverse employment action because it might reasonably

be found to dissuade a reasonable worker from making or supporting

a charge of discrimination. Accordingly, the court holds that

plaintiffs have established a prima facie case of retaliation based

on Peyton’s actions toward Ronnie.28

Because plaintiffs have met their burden of establishing a

prima facie case of retaliation on this ground, the burden shifts

to FedEx to articulate a legitimate, nondiscriminatory reason for

Peyton’s conduct. FedEx has not articulated any reason, much less

 

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a legitimate, nondiscriminatory one, for Peyton’s behavior.

Accordingly, FedEx is not entitled to summary judgment dismissing

plaintiffs’ retaliation claim based on Peyton’s alleged persecution

of Ronnie following the February 2003 meeting.

D

Plaintiffs next posit that there is a suspicious temporal

proximity between the filing of Ronnie’s July 28, 2003 EEO

complaint against Peyton and his subsequent termination on December

16, 2003. The filing of an EEO complaint is a protected activity,

and termination is an adverse employment action. Moreover, an

inference of a causal connection can reasonably be drawn based on

the temporal proximity between the filing of the EEO complaint in

July and Ronnie’s subsequent termination in December. In this

circuit, “[t]ime lapses of up to six months have been held

sufficient to establish the causal connection prong of a prima

facie retaliation case.” Phillips v. Credit Lyonnais, 2002 WL

1575412, at *8 n.4 (N.D. Tex. July 16, 2002) (Fish, J.) (citing

Dennison v.. AT & T Corp., 1998 WL 873032, at *1 n.1, *2, *4 (N.D.

Tex. Dec. 3, 1998) (Buchmeyer, J.), aff’d, 189 F.3d 469 (5th Cir.

1999) (unpublished table decision)). Accordingly, the court holds

that plaintiffs have established a prima facie case of retaliation

on this basis.

Because plaintiffs have established a prima facie case, the

burden shifts to FedEx to produce evidence of a legitimate,

 

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nondiscriminatory reason for terminating Ronnie’s employment. To

meet its burden of production, FedEx appears to rely solely on the

reasons already described supra at § V(D). For the reasons the

court has already described, see supra at § V(E), the court holds

that plaintiffs have demonstrated the existence of a genuine issue

of material fact as to whether these reasons were unworthy of

credence and thus pretextual. Accordingly, the court denies

FedEx’s motion for summary judgment to the extent it is addressed

to this component of plaintiffs’ retaliation claim.

E

Plaintiffs also contend that there is a suspicious temporal

proximity between Katie’s complaints regarding fear for her job and

her concern about being considered “a mouth,” and her termination

two months later. They cite summary judgment evidence that, after

Peyton began changing Katie’s schedule in December 2003, Katie

complained to Roberts of harassment and requested an open door

meeting. On December 17, 2003, the day after Ronnie was fired,

Katie and Roberts met. Plaintiffs allege that, instead of

addressing her concerns, Roberts told her that he had heard she

“had a mouth” and that he did not like “nit picking.” Katie

complained to Roberts that she was concerned about Peyton’s

harassment, was in fear of losing her job, and that her husband had

been fired the day before.

Katie’s complaints to Roberts are a protected activity, and

 

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29Ronnie was reinstated after FedEx determined that its own

employment policies required a period of suspension before

termination. 

- 49 -

her termination is an adverse employment action. Plaintiffs have

established a prima facie case of retaliation. 

FedEx appears to rely on the same reasons described supra at

§ V(D) to meet its burden of production concerning Katie’s

termination. For the reasons the court explains supra at § V(E),

it concludes that plaintiffs have demonstrated the existence of a

genuine issue of material fact as to whether FedEx’s reasons are

pretextual. Accordingly, the court denies FedEx’s motion for

summary judgment as to this element of Katie’s retaliation claim.

Because it relates to Katie, the claim is limited to one brought

under § 1981.

F

Finally, plaintiffs argue that there is a suspicious temporal

nexus between Ronnie’s reinstatement29 on January 7, 2004, for which

Roberts was chastised, and Roberts’s decision approximately five

weeks later to engage in a three-week long full-blown investigation

of plaintiffs. To the extent plaintiffs rely on this evidence to

assert an independent basis for retaliation (as opposed to proof

that FedEx engaged in other retaliatory conduct), it fails the

fundamental requirement that they identify the protected activity

in which they were engaged.

“An employee engages in protected activity by (1) opposing an

 

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30As noted supra at § IV(B), Katie did not exhaust her Title

VII-based hostile work environment claim. Accordingly, Katie’s

claim is limited to one brought under § 1981. Ronnie’s claim is

based on Title VII and § 1981.

- 50 -

employment practice made illegal by Title VII [and/or § 1981], or

(2) if he has ‘made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing’ under

Title VII [and/or § 1981].” Foster v. Solvay Pharms., Inc., 160

Fed. Appx. 385, 388 (5th Cir. Dec. 23, 2005) (per curiam)

(unpublished opinion) (quoting Long, 88 F.3d at 304). Although the

underlying practice need not be illegal, the employee must at least

reasonably believe it to be so. Dixon v. Moore Wallace, Inc., 2006

WL 1949501, at *12 (N.D. Tex. July 13, 2006) (Fitzwater, J.)

(citations omitted). A reasonable jury could not find that Ronnie

engaged in protected activity by being reinstated to employment.

Accordingly, he cannot recover for retaliation on this basis.

IX

Plaintiffs allege that FedEx is liable under Title VII and

§ 1981 because they were subjected to a racially hostile work

environment.30 FedEx maintains on various grounds that it cannot

be held liable for coworker harassment and that, assuming

plaintiffs can show supervisor-based harassment, FedEx has

established the affirmative defense to liability. The court need

only consider FedEx’s contentions that plaintiffs cannot show that

any harassment by coworkers or by a supervisor was severe and

 

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pervasive.

A

To establish a prima facie case of hostile work environment

based on race, plaintiffs must show that (1) they belong to a

protected group, (2) they were subject to unwelcome harassment, (3)

the harassment complained of was based on race, (4) the harassment

complained of affected a term, condition, or privilege of

employment, and (5) FedEx knew or should have known of the

harassment in question and failed to take prompt remedial action.

See Ramsey v. Henderson, 286 F.3d 265, 268 (5th Cir. 2002).

Harassment is based on race if “the complained-of conduct had a

racial character or purpose.” Harris-Childs v. Medco Health

Solutions, Inc., 2005 WL 562720, at *6 (N.D. Tex. Mar. 10, 2005)

(Means, J.). Moreover, plaintiffs must demonstrate a “connection

between the allegedly harassing incidents and [their] protected

status.” Id. The fifth element need not be established if the

harassment is allegedly committed by the victim’s supervisor.

Celestine, 266 F.3d at 353-54; see also Faragher v. City of Boca

Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 765 (1998). 

To meet the fourth element, plaintiffs must demonstrate that

the harassment affected a term, condition, or privilege of

employment. “For harassment on the basis of race to affect a term,

condition, or privilege of employment . . . it must be

 

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- 52 -

‘sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.’”

Ramsey, 286 F.3d at 268 (internal quotations omitted) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Title VII

prohibits “a [racially] objectionable environment [that is] both

objectively and subjectively offensive, one that a reasonable

person would find hostile or abusive, and one that the victim in

fact did perceive to be so.” Faragher, 524 U.S. at 787 (addressing

sex discrimination) (citing Harris, 510 U.S. at 21-22).

“Actionable harassment must involve ‘racially discriminatory

intimidation, ridicule[,] and insults.’” Felton v. Polles, 315

F.3d 470, 485 (5th Cir. 2002) (quoting Walker v. Thompson, 214 F.3d

615, 625 (5th Cir. 2000)) (applying Title VII case law to a claim

brought under 42 U.S.C. § 1983); see also Harris, 510 U.S. at 21.

“In determining whether a workplace constitutes a hostile work

environment, courts must consider the following circumstances: ‘the

frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.’” Ramsey, 286 F.3d at 268 (5th Cir.

2002) (quoting Walker, 214 F.3d at 625). Merely offensive conduct

is not actionable. Harris, 510 U.S. at 21. 

 

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- 53 -

B

Concerning coworker harassment, FedEx posits that plaintiffs

cannot show that the conduct of any coworker was sufficiently

severe or pervasive to support a hostile work environment claim

because it was neither frequent nor severe, and none of the alleged

conduct was physically threatening. It therefore maintains that,

under the totality of the circumstances, racial harassment has not

been established as a matter of law. FedEx also argues that while

much of the conduct may have been boorish and offensive, the

actions taken collectively are insufficient to establish that the

alleged harassment was severe or pervasive enough to make

plaintiffs’ working environment objectively hostile or severe.

FedEx also asserts that, under Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75 (1998), the relevant social context in

which the behavior occurred——here, truck drivers working in a

warehouse trucking environment——must be considered in determining

whether harassment qualifies as severe or pervasive. FedEx posits

that reviewing the social context and applying common sense will

assist the court in distinguishing between simple teasing and

conduct that reasonable persons in plaintiffs’ positions would find

severely hostile and abusive. It maintains that in the setting

involved here, the coworkers’ conduct cannot be found to be severe

and pervasive. Regarding supervisor harassment, FedEx contends

that plaintiffs’ reliance on Peyton’s conduct is insufficient to

 

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establish severe and pervasive harassment.

Plaintiffs respond by focusing first on a claim for

supervisory harassment. They contend that Garrett’s conduct

affected the terms and conditions of Katie’s employment because

Garrett determined on a daily basis her workload and stops, and he

put her freight in backwards, necessitating daily monitoring of his

conduct by two managers. Plaintiffs assert that Garrett sabotaged

Katie’s truck and that he gave her a disproportionate amount of

freight and a disproportionally large coverage area.

Plaintiffs also allege that management failed to discipline

Charlotte Williams (“Williams”) for throwing her equipment at Katie

on a daily basis, failed to discipline Terry for intimidation and

verbal attack, and failed to correct Garrett’s ongoing harassment

over the course of years. They aver that Peyton harassed Ronnie to

such a severe degree that he broke down and cried in his manager’s

office and ultimately took stress leave. According to plaintiffs,

FedEx management was aware of Ronnie’s 2002 heart attack but failed

to protect him from physical and verbal violent attacks from

Garrett and Arbet shortly after he returned to work. Plaintiffs

also maintain that the work environment was polluted with “jungle

fever” innuendo and openly hostile comments about their interracial

status.

FedEx replies, inter alia, that plaintiffs cannot establish

that Garrett was a supervisor under applicable law, or that the

 

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- 55 -

coworkers’ conduct was severe and pervasive harassment, because

none of the relevant circumstances——including frequency, severity,

physical threats, or humiliation and whether it unreasonably

interfered with work performance——favors plaintiffs. FedEx also

contends that it could not have known of the alleged harassment due

to plaintiffs’ failure to report it.

C 

FedEx has pointed to the absence of evidence that plaintiffs

were subjected to conduct that was sufficiently severe or pervasive

to establish a hostile work environment. Because FedEx will not

have the burden of proof at trial on this claim, it can meet its

summary judgment obligation by pointing the court to the absence of

evidence to support it. See Celotex Corp., 477 U.S. at 325. Once

it does so, plaintiffs must go beyond their pleadings and designate

specific facts showing there is a genuine issue for trial. See id.

at 324. An issue is genuine “if the evidence is such that a

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

Anderson, 477 U.S. at 248. Summary judgment is mandatory if

plaintiffs fail to meet this burden. Little, 37 F.3d at 1076. 

In their response brief, plaintiffs rely on some evidence of

harassment based on race——that is, conduct that had a racial

character or purpose——but they largely cite harassment that is race

neutral, which the court discusses below. Because it is harassment

that is based on race that is relevant to plaintiffs’ racially

 

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- 56 -

hostile work environment claim, the court focuses on that evidence.

According to the evidence on which plaintiffs rely, during a

two-year period, Garrett said in Katie’s presence “probably . . .

10 or 11 times” that “Y’all got that jungle fever going on.” Ps.

App. 591. Katie testified in her deposition that Garrett would

“swing that into sentences.” Id. Ronnie testified that, after he

and Katie began seeing each other, Garrett also sang the “jungle

fever” song in his presence, although he did not specify how

frequently or over what period of time this occurred. Id. at 622.

Probably when coupled with other statements (for example, Garrett

supposedly said that Ronnie would “never date another black woman

again”), plaintiffs understood the references to “jungle fever” to

be negative comments about their interracial relationship. A

reasonable jury could not find, however, that the references to

“jungle fever” were sufficiently severe and pervasive that they

altered a term or condition of plaintiffs’ employment. See, e.g.,

Mosley v. Marion County, Miss., 111 Fed. Appx. 726, 728 (5th Cir.

2004) (per curiam) (unpublished opinion) (affirming summary

judgment dismissal of hostile work environment claim based on

evidence of three instances of use of racial slurs). 

Plaintiffs do not point the court to summary judgment evidence

that would permit a reasonable jury to infer that Garrett’s

remarks, which occurred over a two-year period, were so objectively

offensive as to be hostile or abusive, rather than a mere offensive

 

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- 57 -

utterance that is not actionable. See Faragher, 524 U.S. at 788

(stating that “‘[s]imple teasing,’ offhand comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of

employment.’” (citation omitted) (quoting Oncale, 523 U.S. at 82)).

They rely on evidence that Garrett made references to a movie or

song (according to the record, “Jungle Fever” is both), or sang a

song, that plaintiffs understood to treat their interracial

relationship with opprobrium. But they have not cited evidence

that would permit a reasonable jury to find that the conduct is

sufficiently severe or pervasive to alter the conditions of their

employment and create an abusive working environment. The

references to “jungle fever” were apparently relatively infrequent

when viewed over a span of two years, were not threatening, and

required that plaintiffs draw the inference that the statements and

singing of the song were negative references to their interracial

relationship. Cf. Walker v. Thompson, 214 F.3d 615, 626 (5th Cir.

2000) (holding that evidence that appellants who adduced evidence

that they “were subjected to comparisons to slaves and monkeys,

derisive remarks regarding their African heritage, patently

offensive remarks regarding the hair of African-Americans, and

conversations in which coworker and supervisor used the word ‘ni--

er,’” had created fact issue with respect to hostile work

environment claim).

 

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31The court does not suggest that race-neutral actions are

always insufficient, when coupled with evidence of racial animus,

to permit the finding that harassment is race based. To take an

obvious example, if a supervisor told an African-American employee

that she was going to make his work life miserable because he was

African-American, and she then engaged in a course of putatively

race-neutral harassing conduct that apparently was intended to do

just as she promised, a reasonable jury could find that the

environment was racially hostile, even though race neutral, because

- 58 -

Moreover, even if Garrett’s conduct is taken together with the

other actions on which plaintiffs rely to support their claim of

supervisory harassment——but for which they have presented no

evidence of racial animus——they have still failed to establish a

genuine issue of material fact. Most of the actions that

plaintiffs cite are not racial in character or purpose and would

not reasonably permit the inference that they had a racial animus.

This conduct includes, inter alia, loading Katie’s freight

backwards, giving her a disproportionate amount of freight to be

delivered over a larger-than-average area, and putting 2,000-pound

skids on her truck facing the wrong way. These actions are race

neutral and are insufficient to permit a reasonable jury to find

supervisory racial harassment. See Medco Health Solutions, 2005 WL

562720, at *6 (holding that plaintiff failed to provide any

evidence that any of alleged harassing events were based on her

race or had racial character or purpose). A reasonable jury could

not find, without unreasonably piling one inference on another

inference, that Garrett’s allegedly harassing actions were

motivated by plaintiffs’ interracial relationship.31 

 

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it at least had a racial purpose. 

32In the cited deposition testimony, Ronnie states that Arbet

never actually touched him during the incident, but that Bendstrup

physically restrained Arbet.

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Nor have plaintiffs adduced evidence sufficient to permit a

reasonable jury to conclude that the purportedly harassing conduct

of Peyton, Arbet, Terry, or Williams, or management’s alleged

failure to discipline them for it, was somehow connected to

plaintiffs’ status as an interracial couple. 

Although plaintiffs allege that Peyton subjected Ronnie to

unwelcome harassment, they have not adduced sufficient evidence for

a reasonable jury to find that Peyton did so based on Ronnie’s race

or his involvement in an interracial relationship. Ronnie’s

subjective belief that Peyton acted on such a basis is insufficient

to create a fact issue. See, e.g., Nichols v. Grocer, 138 F.3d

563, 570 (5th Cir. 1998) (“[A] subjective belief of discrimination,

however genuine, [cannot] be the basis of judicial relief.”)

(quoting Little v. Republic Refining Co., 924 F.2d 93, 95 (5th Cir.

1991)).

Plaintiffs have adduced evidence that Arbet was “physically

and verbally aggressive” toward Ronnie within a few days after his

return from work after suffering a heart attack.32 But while Arbet

was certainly upset with Ronnie about an incident involving Katie

and about her “mouth” (i.e., her unwillingness to “shut up” about

it), see Ps. App. 624-25, a reasonable jury could not find that

 

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Arbet’s conduct was in any way related to plaintiffs’ interracial

relationship. Rather, the jury could only reasonably find that

Arbet was upset with Katie about the incident, that he complained

to Ronnie and told him he needed to do something about it, and that

his conduct was race neutral. Absent sufficient evidence of racial

animus or purpose, Ronnie’s subjective belief that Arbet’s actions

were motivated by racial animus is insufficient to avoid summary

judgment.

Moreover, other than relying on Ronnie’s subjective belief,

plaintiffs have failed to adduce sufficient evidence to enable a

reasonable jury to find that Terry’s actions in cursing at her,

throwing her purse, duffle bag, and water bottle from a FedEx

truck, and using an expletive to tell her to stay out of his truck,

were somehow related to Katie’s involvement in an interracial

relationship. The acts on which plaintiffs rely are race neutral,

and they offer no evidence from which a reasonable jury could find

that Terry’s actions were based on plaintiffs’ interracial

relationship.

Plaintiffs also rely on evidence that Williams would throw and

slam down on the counter the equipment that Katie had requested,

Ps. App. 589, and that, probably fewer than 12 times, Williams

“ma[d]e snide jokes” to a coworker, which Katie could overhear,

“about white women taking the black men,” id. Williams’s conduct

at the counter is not shown to be anything but race-neutral. And

 

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for reasons that the court has already explained, a reasonable jury

could not find that Williams’s “snide jokes” to a coworker about

white women taking the black men, made over the course of the time

period in question, were sufficiently severe and pervasive as to

alter a term or condition of Katie’s employment.

Consequently, because a jury could not reasonably find that

plaintiffs were subjected to severe and pervasive harassment on the

basis of their interracial status, the court grants FedEx’s motion

for summary judgment on plaintiffs’ hostile work environment claims

under Title VII and § 1981.

X

FedEx moves for summary judgment dismissing plaintiffs’ Texaslaw claim for intentional infliction of emotional distress.

Without suggesting that FedEx’s arguments lack merit, the court

raises sua sponte that the claim should be dismissed for a more

fundamental deficiency.

In Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex.

2004), the Texas Supreme Court reiterated that the tort claim of

intentional infliction of emotional distress was originally

recognized to be a “‘gap-filler’ tort, judicially created for the

limited purpose of allowing recovery in those rare instances in

which a defendant intentionally inflicts severe emotional distress

in a manner so unusual that the victim has no other recognized

theory of redress.” Id. at 447. In Hoffmann-LaRoche the court

 

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addressed the claims of a plaintiff who sued her former employer

for sexual harassment and intentional infliction of emotional

distress. Id. at 441-42. It held that because the gravamen of her

complaint was sexual harassment, she was unable to pursue both

claims unless she proved acts independent of her sexual harassment

claim that supported a claim for intentional infliction of

emotional distress. See id. at 441.

The gravamen of plaintiffs’ complaint of intentional

infliction of emotional distress is their claims for race

discrimination, hostile work environment, and retaliation. See 1st

Am. Compl. ¶ 3(“The employment practices of [FedEx], set forth

herein below, are also alleged by Plaintiffs to be in violation of

Texas common law.”), ¶ 199 (asserting that “[FedEx] has and

continues to intentionally inflict extreme emotional distress upon

Plaintiffs,” but not asserting distinct basis for allegation apart

from employment practices otherwise alleged). They do not rely on

acts independent of these claims to hold FedEx liable. 

Accordingly, the court gives plaintiffs 20 days from the date

of this memorandum opinion and order to file a brief in which they

state any basis on which they rely to contend that their claim for

intentional infliction of emotional distress should not be

dismissed on this basis. They are not required to file such a

brief if they cannot demonstrate a viable ground to remove this

claim from the preclusive reach of Hoffmann-LaRoche. And they are

 

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33Rule 56(e) provides, in relevant part, that “[s]upporting and

opposing affidavits shall be made on personal knowledge, shall set

forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the

matters stated therein . . . .”

34FedEx also moves to strike portions of plaintiffs’ joint

declaration, Ps. App. 141-49, on the ground that they contradict

plaintiffs’ deposition testimony. Because the court has not relied

on this evidence in deciding FedEx’s summary judgment motion, the

motion to strike is denied in this respect as moot.

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not permitted to rely on allegations not contained in their first

amended original complaint or on evidence not already submitted in

opposition to FedEx’s motion. After considering their response

brief (or their decision not to file one), the court will either

dismiss the claim or invite FedEx to file a reply.

XI

FedEx moves to strike plaintiffs’ declarations that are

included in their first evidentiary appendix, see Ps. App. 432-48,

449-71, 472-84, and 768-72, and the parts of their brief that rely

on this evidence, contending in very general terms they do not

comply with Fed. R. Civ. P. 56(e)33 because they are not based on

personal knowledge, lack foundation, contain improper lay opinions,

and constitute inadmissible hearsay.34 The court denies the motion.

The declarations that FedEx seeks to exclude are essentially

offered as combinations of summaries of voluminous records under

Fed. R. Evid. 1006 and plaintiffs’ factual testimony that explains

the summarized documents and sets out other evidence that, taken

together, is probative of the conduct of other FedEx drivers.

 

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Plaintiffs rely on this evidence to show that other drivers drove

five miles beyond their last delivery for a break, had time lapses

in their records, and made deliveries during breaks. 

“Rule 1006 requires (1) the underlying writings be voluminous

and (2) in-court examination not be convenient.” United States v.

Stephens, 779 F.2d 232, 239 (5th Cir. 1985) (citing United States

v. Scales, 594 F.2d 558, 562 (6th Cir. 1978)). FedEx has not

demonstrated through its very general objections that the

underlying writings are not voluminous. Plaintiffs’ testimony

about the documents——at least insofar as the court has relied on

it——is limited to their factual explanations of what the documents

mean (e.g., how to read a time card and delivery record), what

conduct they reflect, and their factual testimony about other

facts, and it is not inadmissible expert opinion evidence. The

records that are summarized appear to be FedEx business records

that fall within an exception to the hearsay rule. See Fed. R.

Evid. 803(6). And because FedEx does not object more specifically,

the court need not address whether other evidence on which it has

relied in denying summary judgment is inadmissible hearsay.

Finally, assuming arguendo that there are deficiencies in the

evidence on which the court has relied, “the papers of a party

opposing summary judgment are usually held to a less exacting

standard than those of the moving party.” Lodge Hall Music, Inc.

 

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35In denying FedEx’s motion to strike, the court has not

evaluated whether the documents in question would, if offered at

trial, be more properly considered pedagogical devices that “are

not themselves evidence, and, absent the consent of all parties,

. . . should not be sent to the [jury room] with the other

exhibits.” Pierce v. Ramsey Winch Co., 753 F.2d 416, 431 (5th Cir.

1985) (citation omitted). FedEx does not object to the evidence on

this basis, and the court has no reason to address a trial issue in

the context of this summary judgment motion.

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v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987).35

 * * *

For the reasons explained, the court grants FedEx’s November

29, 2005 motion for summary judgment to the extent that it

dismisses all of plaintiffs’ claims except the following: (1) their

Title VII- and § 1981-based discriminatory termination claims; (2)

Katie’s § 1981-based, and Ronnie’s Title VII- and § 1981-based,

retaliation claims based on (a) their terminations and (b) the

alleged retaliatory actions taken by Peyton against Ronnie; and (3)

Katie’s § 1981-based discriminatory failure to promote claim based

on the alleged denial of promotion in 2002. 

The court raises sua sponte that FedEx is entitled to summary

judgment dismissing plaintiffs’ § 1981-based discriminatory failure

to promote claims based on denials of promotions in 2001 and their

claims for intentional infliction of emotional distress.

Plaintiffs are given 20 days from the date of this memorandum

opinion and order to file a brief in which they state any basis on

which they rely to contend that these claims should not be

 

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dismissed.

 To the extent the magistrate judge’s July 20, 2006 findings

and recommendation are consistent with today’s ruling, they are

adopted; otherwise, the court declines to adopt them. See supra

note 7.

SO ORDERED.

January 9, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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