E.E.O.C. v. Premier Operator Services, Inc.

• Decision Date: 19 October 1999
• Docket Number: No. 3:98-CV-198-BF.,3:98-CV-198-BF.
• Citation: 75 F.Supp.2d 550
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. PREMIER OPERATOR SERVICES, INC. and Digital Network Services, Inc., Defendants.
• Court: U.S. District Court — Northern District of Texas

75 F.Supp.2d 550

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. PREMIER OPERATOR SERVICES, INC. and Digital Network Services, Inc., Defendants.

No. 3:98-CV-198-BF.

United States District Court, N.D. Texas, Dallas Division.

October 19, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeffrey Charles Bannon, Robert A. Canino, Jr., Equal Employment Opportunity Commission, Dallas, TX, for plaintiff.

Timothy Stuart Perkins, Smith Underwood & Perkins, Dallas, TX, for defendants.

Maxel B. `Bud' Silverberg, Law Office of Maxel `Bud' Silverberg, Dallas, TX pro se.

STICKNEY, United States Magistrate Judge.

ORDER

This is a consent case before the United States Magistrate Judge. Currently before this Court is the Defendants' Motion for Summary Judgment, filed April 23, 1999 and Plaintiff EEOC's Motion for Partial Summary Judgment, filed April 23, 1999. Based on arguments presented in Defendants' Motion, the Response and Reply thereto, and applicable authority, this Court finds that Defendants' Motion is denied in part and granted in part. Further, based on arguments presented in Plaintiff EEOC's Motion, the Response and Reply thereto, and applicable authority, this Court finds that Plaintiff's Motion is granted.

I. Background

Plaintiff Equal Employment Opportunity Commission ("EEOC") brings this action under Title VII of the Civil Rights Act of 1964 as amended ("Title VII"), 42 U.S.C. §§ 2000e et. seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a), against Defendants, Premier Operator Services Inc. ("Premier") and Digital Network Services ("Digital") on behalf of a class of the Defendants' Hispanic employees, claiming unlawful employment practices on the basis of national origin. See Complaint at 1. The EEOC alleges that Defendants' (both Premier and Digital Network Services, Inc.) Hispanic employees were subjected to a discriminatory "Speak-English-Only" policy in violation of Section 703(a) of Title VII. Furthermore, the EEOC contends that this policy had a disparate impact on Defendants' Hispanic employees because the policy placed overly broad constraints on the speaking of Spanish in the workplace without a business necessity justification. The EEOC also claims disparate treatment of the employees because Defendants separated out its work force into groups based on national origin. Additionally, the EEOC alleges Defendants violated Section 704(a) of Title VII by disciplining and discharging Hispanic employees in retaliation for opposing the "Speak-English-Only" policy.

Defendants in this case are related telecommunications companies. Defendant Digital provides network equipment and technical expertise to various long-distance telephone service carriers, and Defendant Premier provides operator services to the long-distance carriers with which Digital has contracts. See Brief in Support of Defendants' Motion for Summary Judgment ("Motion") at 3. The employees on whose behalf the EEOC brings this suit ("the class members") were formerly employed by Premier as long-distance operators. See id. All of the class members are Hispanic and speak both Spanish and English. See EEOC's Response to Defendants' Motion for Summary Judgment ("Response") at 3; see also Motion at 3.

By the instant motion, Defendants move for summary judgment on all of the EEOC's claims, including the EEOC's contention that Premier and Digital operate as a joint employer or integrated enterprise. In contrast, the EEOC requests partial summary judgment on Defendants' Affirmative Defenses. Specifically, the EEOC seeks summary judgment for Defendants' laches defense, non-satisfaction of administrative prerequisites defense, and Defendants' defenses against awarding injunctive and compensatory damages.

II. Summary Judgment Standard

Summary judgment is appropriate when the pleadings and the evidence show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Melton v. Teachers Ins. & Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir.1997). The applicable substantive law identifies those facts that are material and only disputes about those facts will preclude the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). There is a genuine issue of fact if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Society of Fin. Examiners v. Nat'l Ass'n of Certified Fraud Examiners, Inc., 41 F.3d 223, 226 (5th Cir.), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995).

The moving party bears the initial burden of showing that there is no genuine issue of fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 712 (5th Cir. 1994). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing an absence of evidence in support of the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once a properly supported motion for summary judgment is presented, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Elliott v. Lynn, 38 F.3d 188, 190 (5th Cir.1994), cert. denied, 514 U.S. 1117, 115 S.Ct. 1976, 131 L.Ed.2d 865 (1995) (citing Anderson, 447 U.S. at 249, 100 S.Ct. 2124). All reasonable doubts and inferences must be decided in the light most favorable to the party opposing the motion. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988), Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir.1985). Nonetheless, it takes more than "some metaphysical doubt as to the material facts to satisfy this burden." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The nonmoving party cannot avoid summary judgment with only conclusory allegations or unsubstantiated assertions. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990); Hopper v.. Frank, 16 F.3d 92, 96-97 (5th Cir.1994). Summary Judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

III. Discrimination in Employment

Discrimination in employment requires either a showing of disparate impact or disparate treatment. Title VII covers both intentional discrimination and discrimination by disparate impact. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 985-91, 108 S.Ct. 2777, 2783-87, 101 L.Ed.2d 827 (1988); Griggs v. Duke Power Company, 401 U.S. 424, 430-31, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). The distinction between disparate impact and disparate treatment is factual. See Watson, 487 U.S. at 987, 108 S.Ct. at 2785. "[T]he necessary premise of the disparate impact ... may in operation be functionally equivalent to intentional discrimination." See id. To prove disparate treatment, a Plaintiff must show an intentional discrimination. Watson, 487 U.S. at 986-87, 108 S.Ct. 2777. Disparate impact suggests that a facially neutral policy is in actuality eliciting the same effects as intentional discrimination. See Watson, 487 U.S. at 987, 108 S.Ct. 2777.

A. Disparate Impact under Title VII

To establish a prima facie case of discrimination by disparate impact, Plaintiff bears the burden of demonstrating that the challenged employment practice causes a significantly discriminatory impact on a protected group. See Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982). Once Plaintiff establishes its prima facie case, the burden shifts to Defendant employer to "demonstrate that the challenged practice is job related for the position in question and consistent with a business necessity. 42 U.S.C. § 2000e-2(k)(1)(A) (Supp.1992); see also Teal, 457 U.S. at 446, 102 S.Ct. 2525. If Defendant demonstrates a business necessity for the practice, the burden shifts back to Plaintiff to prove that Defendant employer could have used some other nondiscriminatory practice to satisfy the same business necessity. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975)."

In their Motion for Summary Judgment, Defendants allege that the EEOC's claim is foreclosed by the Fifth Circuit's decision in Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981), which upheld an employer's English-only policy that prohibited employees from speaking Spanish on the job unless they were communicating with Spanish-speaking customers. Defendants maintain that Gloor controls because the facts of the instant case are indistinguishable from those in Gloor. See Motion at 13. Specifically, Defendants argue that their policy required employees to speak English while on duty, unless they received a call from a Spanish-speaking customer. See id. They maintain that, like the policy considered by the court in Gloor, their policy did not impose a blanket prohibition against speaking Spanish because it permitted employees to converse in Spanish during breaks and personal time, if no non-Spanish speaking employees were present during the discussion See id.

Gloor, however, does not necessarily control the question presented in the instant case. First, the evidence in the record creates a genuine issue as to the actual parameters of Defendants' English-only policy. The EEOC disputes Defendants' characterization of their policy and submits evidence which tends to show that the policy prohibited all speaking of Spanish...