United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the Motion for Summary Judgment  filed by the Defendant, Dolgencorp, LLC, seeking dismissal of employment discrimination claims brought by the Equal Employment Opportunity Commission on behalf of Demetrice Hersey. The EEOC contends that Dolgencorp did not promote Hersey to the position of assistant store manager because she is black, and then retaliated against her by issuing written discipline when she filed a charge of discrimination with the EEOC. The issues have been fully briefed, and after due consideration of the parties' arguments and evidence, it is the Court's opinion that there are questions of material fact for the jury in regard to the racial discrimination claim. The Motion will be denied to that extent. However, the retaliation claim lacks evidentiary support, and therefore the Court will grant the Motion as to the retaliation claim. The EEOC's motion for a hearing on the Motion will also be denied.
THE EEOC'S ALLEGATIONS
According to the allegations of the Amended Complaint , Hersey began working as a cashier at Dolgencorp's Dollar General store in Long Beach, Mississippi, in 2006. Three months after she began, she was promoted to lead sales associate. Beginning in 2009, Hersey expressed interest in a promotion to the position of assistant store manager. The position became open three times during 2009 and 2010, but Hersey was not promoted. Hersey alleges she was not promoted because she is black. She also alleges that after she filed a charge of discrimination with the EEOC on February 2, 2010, she was retaliated against, in that she was "subjected [ ] to a progression of unwarranted disciplinary actions accompanied by a pattern of increasingly demeaning and cruel statements and conduct by the managers in authority...." (Am. Compl. at 5, ECF No. 6).
I. Race Discrimination
It is unlawful under Title VII for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Direct Evidence of Race Discrimination
The EEOC contends it can show direct evidence that Hersey was not promoted because of her race. Where there is direct evidence of a discriminatory basis or motivation for an adverse employment action, the McDonnell Douglas framework used to analyze the sufficiency of circumstantial evidence of discrimination does not apply. Yul Chu v. Miss. State Univ., No. 14-60129, 2014 WL 6306689, at *3 (5th Cir. Nov. 17, 2014). Instead, "[t]he presentation of credible direct evidence that discrimination motivated or was a substantial factor in the adverse employment action shifts the burden to the employer that, regardless of discrimination, the same decision would have been made." Reilly v. TXU Corp., 271 F.App'x 375, 379 (5th Cir. 2008) (citing Jones v. Robinson Prop. Grp., 427 F.3d 987, 992 (5th Cir. 2005)).
The EEOC presents evidence that store employees heard O'Neal, the store manager and decision maker, frequently use the word "nigger" when referring to black persons, and once call Hersey a "lazy black nigger." O'Neal also told an employee that "she didn't want a nigger working for her and that she was trying to get Mrs. Dee [Hersey] to leave, " expressly stating that she "was not going to make [Hersey] her assistant because she did not want a nigger working for her." (Pl. Ex. L 24, ECF No. 121-12).
Hersey contends that such routine use of racial slurs can constitute direct evidence that a supervisor's racial animus was a motivating factor in a challenged employment action, citing Brown v. East Mississippi Power Association, 989 F.2d 858 (5th Cir. 1993). However, as Dolgencorp notes, Fifth Circuit cases subsequent to the East Mississippi Power Association decision require more than evidence of frequency for racist remarks to constitute direct evidence of employment discrimination. The Fifth Circuit "continue[s] to apply the CSC Logic test when a remark is presented as direct evidence of discrimination apart from the McDonnell Douglas framework." Laxton v. Gap Inc., 333 F.3d 572, 583 n.4 (5th Cir. 2003) (citing Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 404-05 (5th Cir. 2001); see also Ray v. United Parcel Serv., 587 F.App'x 182 (5th Cir. Nov. 20, 2014).
Under Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), "in order for comments to constitute direct evidence, they must be 1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the complained-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.'" Ray, 587 F.App'x 182 (quoting Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000) (add'l citations and marks omitted)). "Comments failing to satisfy these requirements are merely stray remarks' that are independently insufficient to prevent summary judgment." Id. (citing Jackson v. Cal-W Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010)). "Additionally, in order to constitute direct evidence at this stage of the analysis, the comments must be such that, "if believed, would prove the existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions.'" Id. (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993)).
O'Neal's comments unquestionably satisfy two of the CSC Logic factors, because the comments are related to Hersey's protected class of persons by an individual with authority over the promotion decisions at issue. Dolgencorp argues however, that Ramirez testified that certain of O'Neal's comments were made around April 2011 - more than one year after the last challenged promotion decision in 2009 and 2010, and therefore the comments do not relate to the employment decisions at issue in this case. (Def. Ex. F 57-58, ECF No. 107-8).
If Hersey's evidence is believed, O'Neal told another employee that she had not promoted Hersey because of Hersey's race. The fact that O'Neal made these comments after Hersey was denied a promotion does not mean they were unrelated to the denied promotions. See, e.g., Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997) (comments by management one year after termination). Nevertheless, Fifth Circuit precedent requires that comments must be made fairly contemporaneously to the challenged employment action to constitute direct evidence. See Ray, 587 F.App'x 182 n.30. For instance, the court found a comment made within two months of termination to be direct evidence under CSC Logic. Palasota v. Haggar Clothing Co., 342 F.3d 569, 576-77 (5th Cir. 2003). But comments made within twelve and sixteen months of the employment action were "stray remarks" rather than direct evidence of discrimination. Auguster, 249 F.3d at ...