Mayberry v. Vought Aircraft Co.

• Decision Date: 28 June 1995
• Docket Number: No. 94-10825,94-10825
• Citation: 55 F.3d 1086
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 401, 66 Empl. Prac. Dec. P 43,595 Robert MAYBERRY, Plaintiff-Appellant, v. VOUGHT AIRCRAFT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1086

55 F.3d 1086

68 Fair Empl.Prac.Cas. (BNA) 401,

66 Empl. Prac. Dec. P 43,595

Robert MAYBERRY, Plaintiff-Appellant, v. VOUGHT AIRCRAFT COMPANY, Defendant-Appellee.

No. 94-10825.

United States Court of Appeals Fifth Circuit.

June 28, 1995.

Noemi A. Collie, Dallas, TX, for appellant.

Maureen F. Moore, True, Rohde & Sewell, Dallas, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Robert Mayberry challenges an adverse summary judgment on his employment discrimination and retaliation claims. Because the summary judgment record fails to create a genuine issue of material fact (restated, would not permit a reasonable juror to find for Mayberry on either claim), we AFFIRM.

I.

Mayberry, who is black, has been employed as a machine operator by Vought Aircraft Company since 1979. Vought uses a progressive discipline program consisting of a verbal warning, written warning, suspension, and termination. Only disciplinary actions occurring within the prior year can be considered in imposing progressive discipline.

Mayberry was disciplined three times in 1991 for poor workmanship in violation of the Vought Code of Conduct, receiving a verbal warning in March, two written warnings in June, and a three-day suspension in December. ¹ He filed union grievances for each disciplinary action, resulting, inter alia, in the agreement that, if he had no further problems with his work until December 2, 1992, he would be reimbursed for his 1991 suspension. ² On October 26, 1992, $8,000 in parts were "scrapped" (damaged) at Mayberry's work station. He blamed the damage on a machine malfunction, but Vought determined that he was at least partially at fault. Although Vought could have terminated Mayberry (because his suspension was less than a year old), it elected instead to suspend him, in view of his seniority and the fact that it could not determine the degree to which the machine may have been responsible for the damage. Mayberry was suspended for 13 days.

Mayberry filed this action in September 1993, claiming that his suspension was on account of his race, and/or in retaliation for prior discrimination claims brought against Vought and his participation in demonstrations against Vought for its alleged discriminatory practices. On Vought's motion for summary judgment, the district court held that Mayberry failed to establish a prima facie case for retaliation, and, assuming a prima facie case of discrimination, that Mayberry was unable to overcome Vought's defense that the suspension resulted from its honest belief that Mayberry had violated the work-rule. Accordingly, summary judgment was entered for Vought.

II.

Mayberry contests the dismissal of both claims. We review summary judgments de novo, to determine, inter alia, whether any genuine issue of material fact exists. Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993). For that aspect, we draw all reasonable inferences in favor of the nonmovant, and ask whether the evidence in the summary judgment record is such that no reasonable juror could find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

The analysis for Title VII discrimination claims is well-known. See e.g., St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff must establish a prima facie case that the defendant made an employment decision that was motivated by a protected factor. Once established, the defendant bears the burden of producing evidence that its employment decision was based on a legitimate nondiscriminatory reason. The burden then shifts back to the plaintiff to prove that the defendant's proffered reasons were a pretext for discrimination. But, if the defendant has offered a legitimate nondiscriminatory reason for its action, the presumption of discrimination derived from the plaintiff's prima facie case "simply drops out of the picture", Hicks, --- U.S. at ----, 113 S.Ct. at 2749, and "the ultimate question [is] discrimination vel non ". Id. at ----, 113 S.Ct. at 2753 (citation omitted).

A.

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". Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980). Mayberry travels both avenues, claiming that he was not responsible for the damage, and that, even assuming he was, similarly situated white employees have not been disciplined.

1.

For showing that white employees were not disciplined, Mayberry's evidence consists of reports from Vought's Accumulated Scrappage Material record (ASM), read together with Vought's list of violations of its Code of Conduct. The ASMs, which record each instance when a part is scrapped, reveal such instances (for white and black employees) that have no corresponding entry on Vought's violations list. Significantly, the ASMs often include notations such as "poor workmanship" or "operator error", apparently to assign cause for the scrappage. Based on this evidence, Mayberry urges that white employees were treated differently from him.

To establish a prima facie case in this manner, Mayberry must show that white employees were treated differently under circumstances "nearly identical" to his. Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991); Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir.1990); Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570-71 (5th Cir. Unit B 1982). In this regard, Mayberry has offered evidence that white (and black) employees have scrapped parts due, apparently, to operator error or poor workmanship, and were not disciplined. However, as Vought explained, and as Mayberry's own evidence confirms, it does not even conduct a disciplinary investigation, much less take disciplinary action, each time a part is scrapped. The decision to investigate is based on two factors: the history of poor work performance of the employee, and the cost of the damaged parts. Mayberry fit both factors; he had several recent instances of poor work performance, and the amount of damage was $8,000.

For whether a white employee in "nearly identical" circumstances has received treatment different from Mayberry, reference to the ASMs is of little value. Vought notes that they are not intended, and are not used, for disciplinary purposes. Rather, they serve only to maintain a record of each part that is scrapped, and to provide authorization for the part's replacement. Most importantly, they make no reference to the work history of the employee or the amount of damage. Accordingly, they are not evidence that white employees in "nearly identical" circumstances have been treated differently. ³ To the contrary, Mayberry's own evidence reveals that, of the 14 other employees in his division who were disciplined for their workmanship between 1991 and 1994, none were black--12 were white and two were Hispanic. In sum, Mayberry's evidence could not support a reasonable juror's finding that he was treated differently from white employees. As such, he fails to make a prima facie case on this basis.

2.

On the other hand, a prima facie case may be established by showing that the plaintiff did not violate the work-rule for which he was disciplined. Green, 612 F.2d at 968. We agree with the district court that Mayberry created a fact question on whether he was responsible for the damage. Although the conclusion from Vought's investigation was that Mayberry was at least partially at fault, Vought admitted that "it could have been possible to have had a software problem". Furthermore, Mayberry offered evidence that his machine had malfunctioned in the past. This, combined with Mayberry's affidavit statement that he was not at fault, creates a reasonable question of whether Mayberry violated the work-rule.

Vought responds to Mayberry's prima facie case by insisting that there was no racial motivation in its decision to suspend Mayberry; that the decision was based solely on its conclusion, following an investigation, that Mayberry was at least partially at fault. With this, Vought has discharged its burden of production, ⁴ and the burden shifted to Mayberry to prove that Vought's proffered reason is merely a pretext for discrimination. Hicks, --- U.S. at ----, 113 S.Ct. at 2749.

Mayberry attempts to overcome Vought's nondiscriminatory reason essentially by reasserting his prima facie evidence. As discussed below, we conclude that, as a matter of law, Mayberry has failed to rebut that nondiscriminatory reason.

The material fact issue on whether Mayberry was at fault exists only because Vought admitted that, although it found no evidence of machine error, it could not be certain that some sort of machine malfunction did not occur. ⁵ Nonetheless, in Vought's judgment it was clear enough that Mayberry was partially at fault. And, because it was not certain that Mayberry was completely at fault, Vought elected only to suspend him, whereas it could have terminated him. Even so, Vought's uncertainty, together with Mayberry's adamant denial, allows for a reasonable question of fact. Mayberry seizes on this fact question as the basis for his contention that Vought's nondiscriminatory reason for the suspension is not credible. ⁶ Mayberry misses the mark. The question is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive.

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