Frank v. Xerox Corp.

• Decision Date: 30 September 2003
• Docket Number: No. 02-20416.,No. 02-20516.,02-20416.,02-20516.
• Parties: Carol Frank, et al., Plaintiffs, Derrey Horn, Cynthia Stubblefeild Walker, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. XEROX CORPORATION, Defendant-Appellee. Carol Frank, et al., Plaintiffs, Carol Frank, Sibyl Arterberry, Henrietta M. Williams, Iris DeBose, Plaintiffs-Appellants, v. Xerox Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

347 F.3d 130

Carol Frank, et al., Plaintiffs, Derrey Horn, Cynthia Stubblefeild Walker, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. XEROX CORPORATION, Defendant-Appellee.

Carol Frank, et al., Plaintiffs, Carol Frank, Sibyl Arterberry, Henrietta M. Williams, Iris DeBose, Plaintiffs-Appellants, v. Xerox Corporation, Defendant-Appellee.

No. 02-20416.

No. 02-20516.

United States Court of Appeals, Fifth Circuit.

September 30, 2003.

COPYRIGHT MATERIAL OMITTED

Melvin Houston (argued), Houston, TX, for Horn.

Michael Vincent Galo, Jr. (argued), Christine Elaine Reinhard, Akin, Gump, Strauss, Hauer & Feld, San Antonio, TX, for Xerox Corp.

Gordon R. Cooper, II (argued), Cooper & Cooper, Houston, TX, for Frank.

Barbara L. Sloan (argued), EEOC, Washington, DC, for EEOC, Amicus Curiae.

Appeals from the United States District Court for the Southern District of Texas.

Before JONES and CLEMENT, Circuit Judges, and FELDMAN, District Judge.^*

FELDMAN, District Judge:

This appeal, which presents several issues, arises out of Appellants' fretful employment relationships with Xerox Corporation. The Appellants in these related cases filed several lawsuits against Xerox under Title VII and 42 U.S.C. § 1981(2003), alleging that because they are black Xerox denied them promotions and pay increases and forced them to work in a racially hostile work environment. Xerox moved for summary judgment as to each Plaintiff. The district court granted those motions and denied Plaintiffs' motions for reconsideration. They appeal the district court's rulings. We reverse in part, affirm in part, and remand.

I.

Xerox, a well-known manufacturer and marketer of copying machines, is also a provider of facilities management services, called Xerox Business Services (XBS), to commercial customers throughout the United States. These management services include in-house copying, printing and mailroom services.

The focus of these lawsuits concerns Xerox's so-called Balanced Workforce Initiative (BWF). Xerox implemented the program in the 1990's for the stated purpose of insuring that all racial and gender groups were proportionately represented at all levels of the company. The BWF targets were established on an annual basis and were based on government labor force data. Throughout the time Xerox had the BWF in place, Xerox produced reports listing the actual and desired racial and gender compositions of each office. These reports indicated to the company that blacks were over-represented and whites were under-represented in Xerox's Houston office in comparison to the local population.

In 1991, the general manager of the Houston XBS office, Doug Durham, directed that the Houston office create its own localized BWF reports to remedy the disproportionate racial representation. The reports set specific racial goals for each job and grade level and indicated whether there were any disproportionate representations.

Another one of Xerox's practices that is under attack in these employee disputes is Xerox's use of "Minority Roundtables." In 1997, to address the concerns of several of its black employees, Xerox decided to hold "Minority Roundtables" at its Houston office. Xerox insists that at these meetings it tried to alleviate the misperceptions of the participants. For example, many of the participants felt that Xerox discriminated against black employees in hiring, promotions and compensation. They also voiced concerns about the lack of any blacks on Durham's senior management team.

We turn now to the employees who sued.

II.

A. Carol Frank

Carol Frank joined Xerox's Houston office in February 1985 as a Production Supervisor III. During her employment at Xerox, Frank received several promotions and salary increases. In September 1988, Frank was promoted to Supervisor II and she worked in that role until 1991, when she applied to become a Production Manager/Manager of Customer Operations (MCO). Frank was not chosen for the position. Xerox claimed that Frank was not qualified for the position and gave the job to Joe Olivarez, a Hispanic male. Xerox stated that Olivarez was the most qualified candidate for the job.

In 1997 Frank applied for the Customer First Manager Position. After interviewing the candidates, Durham decided not to fill the position because he believed none of the candidates was sufficiently qualified. Frank asserts that she believed at the time that she had been discriminated against because of her race. Frank also applied for another MCO position in December 1998. Again, Olivarez was chosen over her. Xerox reiterates that he was chosen because he was the most qualified candidate.

In March 1999 Frank claims she began to suffer from harassing and discriminatory treatment by her supervisor, Linda Carter. She claims Carter's conduct caused her to resign from her position. On March 29, 1999, Frank submitted a letter of resignation and gave two weeks' notice. Thereafter, she filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging race, gender and disability discrimination. The EEOC found no cause of action and dismissed the charge on March 28, 2000.

B. Henrietta Williams

Henrietta Williams started working at Xerox in 1982 as a Production Operator II in the Houston office. During the first seven years of her employment, she received two grade level salary increases and was promoted to Training Administrator. Williams claims that after Doug Durham transferred to the Houston office from New York, she was forced out of her Training Administrator position and replaced by Sharon Talty, a white female, and she was demoted to Production Supervisor. Xerox responds that in 1998 Williams attempted to resign, but that Durham and another manager persuaded her to stay. In 1999, Williams officially resigned. Williams asserts that she resigned because of the racially discriminatory working conditions, constant harassment, lack of employment opportunities and denial of pay raises. Xerox maintains that Williams never asserted discrimination or intolerable working conditions when she left, and that she had not actually applied for a promotion in her last three years at the company.

C. Sibyl Arterberry

Sibyl Arterberry began her career at Xerox in 1991 as a Production Operator IV. By 1995 she had been promoted several times, and by 1997 she was a Lead Account Associate for one of Xerox's accounts. Arterberry claims that she was denied pay increases because of her race. Xerox asserts that she was not eligible for a pay increase in her Account Associate position because she had reached the highest grade level for her position. Xerox adds that it tried to transfer her into another position which would allow her to receive a higher salary, but she refused. Arterberry was later transferred to another account and did get a pay increase. Arterberry was still working for Xerox when the company was sued.

D. Iris DeBose

Iris DeBose came to work at Xerox in 1985. For the first five years of her employment she worked as an Associate Customer Services Support Representative. After that time, her title was changed to Administrative Secretary, although she performed the same duties. DeBose claims that she received outstanding reviews of her performance until 1991 when Doug Durham transferred to the Houston office. She says after his arrival, she was denied promotions to positions which were eventually given to white females with inferior qualifications. She also claims that she was harassed and denied promotions, equal pay and equal pay raises because she participated in the Minority Roundtables. DeBose resigned from Xerox in 1999.

E. Cynthia Walker

Cynthia Walker was hired in September 1985 as a Production Operator in the Houston office. By 1990 she had received several promotions including a promotion to Customer Support Representative, a position she held until September 1997. From 1990 until 1997, Walker received annual merit increases and was promoted to higher pay grade levels. In addition, during that same time period, Walker applied for three different positions. Two of the positions had been eliminated before they were filled and the third position was not awarded to her, Xerox claimed, because she was not qualified. In 1997 Walker was transferred to a Support Analyst position and received a five percent pay raise. In 1998 she was transferred to a lateral position. In April 2000, after several organizational changes at the Houston office, Walker resigned citing lack of opportunities. Apparently, she believed that she should have been offered positions that were given to two of her non-black co-workers.

F. Derrey Horn

Horn began work at Xerox in May 1984 as an entry level Production Operator IV. However, over the years Horn quickly moved up in the company. In 2002 Xerox received an anonymous complaint that some of the female employees had been sexually harassed by Horn. After an investigation, Xerox determined that the complaints were legitimate and terminated his employment. Horn did not file a discrimination charge with the EEOC. Instead, he joined in this lawsuit with the other five plaintiffs.

III.

We review summary judgment de novo. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.2000). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "If the moving party meets the initial burden of showing there is no genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Allen v. Rapides Parish Sch.Bd., 204 F.3d 619,...