Thomas v. Exxon, U.S.A.

• Decision Date: 06 November 1996
• Docket Number: Civil Action No. H-95-939.
• Citation: 943 F.Supp. 751
• Parties: Beatrice M. THOMAS, Plaintiff, v. EXXON, U.S.A. and Exxon Corporation, Defendants.
• Court: U.S. District Court — Southern District of Texas

943 F.Supp. 751

Beatrice M. THOMAS, Plaintiff, v. EXXON, U.S.A. and Exxon Corporation, Defendants.

Civil Action No. H-95-939.

United States District Court, S.D. Texas, Houston Division.

November 6, 1996.

COPYRIGHT MATERIAL OMITTED

Joseph L. Nealy, Slaughter & Nealy, Houston, TX, for Plaintiff.

Nicholas Vincent, Exxon Co., U.S.A., Houston, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant Exxon, U.S.A. and Exxon Corporation's (collectively "Exxon") Motion for Summary Judgment (# 19). Exxon seeks summary judgment on Plaintiff Beatrice M. Thomas's ("Thomas") claims of race/national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981.

Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Exxon's motion for summary judgment should be GRANTED IN PART and DENIED IN PART.

I. Background

Thomas was employed by Exxon U.S.A. from November 5, 1980, through March 14, 1994. On November 1, 1992, she was transferred to the CORS Business Service Section of the Marketing Fuel Products Accounting and Services Division of the Controller's Department to work as a staff office assistant, where Francis G. ("Bud") Carr ("Carr") was her immediate supervisor.

On November 18, 1993, Exxon announced the sale of its credit card center operations to GE Capital. Sale of the credit card center created a surplus of approximately four hundred positions in the Controller's Department. Because of the staffing surplus, a reduction in force was necessary. The reduction in force was accomplished through a separation program which consisted of two phases — the voluntary separation of employees who chose to resign or retire and the involuntary termination of employees performing at relatively low levels in comparison to other employees. The voluntary phase began on January 6, 1994, and ended on February 28, 1994. The involuntary phase began on March 14, 1994. The employees who were to be included in the 1994 involuntary separation were notified that they were at risk for separation during the voluntary separation phase.

In May 1993, as part of Exxon's annual performance evaluation, Thomas's performance and contribution were evaluated and ranked in comparison to others at her level. The performance evaluation and ranking process yields a specific numerical ranking and a Rank Group Percentile ("RGP") for each employee, which indicates the employee's performance ranking compared to others at her level. According to Exxon, Carr, as Thomas's supervisor, rated Thomas, and Carr, as well as other individuals, participated in the ranking process. Thomas's RGP was 23. This indicated that Thomas was ranked at the 23rd percentile for all employees in her rank group and that 77% of the employees in her group were ranked higher. Carr completed Thomas's evaluation on November 18, 1993, at which time he gave her a performance review. Carr advised Thomas that her poor performance, relative to others, placed her at risk for being included in the involuntary phase of the Controller's Special Program of Severance Allowance ("CSPOSA"). On December 7, 1993, Thomas submitted a document entitled "Review of the Performance Assessment Discussion" in rebuttal to Carr's evaluation of her performance. On February 18, 1994, Thomas complained to Debby Benson, an Exxon Senior Human Resources specialist, about perceived racial discrimination and sexual harassment.

In order to meet the desired reduction in the number of employees necessitated by the closing of the credit card center, Exxon determined that the involuntary phase of the separation program would involve termination of employees whose RGP was 0 to 30. Employees whose performance ranked in the bottom 30% of Thomas's rank group were subject to layoff unless excluded by their proximity to annuitant status or their long service. Exxon excluded from the involuntary phase of the program two categories of employees: (1) persons with 25 or more years of service and (2) persons with 15 or more years of service who were between the ages of 52 and 54.

On March 14, 1994, Carr informed Thomas that she had been designated for involuntary separation as part of CSPOSA. The CSPOSA separation program included the separation of approximately 321 employees of which more than 170 were involuntarily separated. Carr informed Thomas that she would be expected to complete all work assignments and that she would continue in her position until such work assignments were completed, or August 31, 1994, whichever came first. After being notified of her status, Thomas taped an envelope to Carr's door which contained Thomas's Exxon credit card, which had been cut up, and her card key access badge. Thomas subsequently left the building. According to Exxon, based on Thomas's conduct on March 14, 1994, Exxon treated her separation as a resignation.

On the following day, March 15, 1994, Thomas filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which was amended on April 1, 1994, alleging that Exxon had discriminated against her due to her race, sex, and age, as well as retaliated against her for complaining about unequal treatment. The EEOC sent Thomas a right-to-sue letter on December 20, 1994, by certified mail. Thomas's daughter, Natalie Adams ("Adams"), who was eighteen years old at the time, signed the certified mail receipt on December 23, 1994. Thomas filed suit ninety-five days later on March 28, 1995. In Thomas's first amended complaint she alleges that Exxon discriminated against her on the basis of her race/national origin by terminating her employment and retaliated against for engaging in statutorily protected activities in violation of Title VII and § 1981.

II. Analysis

A. The Standard for Summary Judgment

Rule 56(c) provides that "[summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which she believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). The moving party, however, need not negate the elements of the non-movant's case. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc).

Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1069, 1075. The controverted evidence must be viewed in the light most favorable to the non-movant, and all reasonable doubts must be resolved against the moving party. Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 402 n. 5, 112 L.Ed.2d 349 (1990); Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 435 (5th Cir.1992). Nevertheless, neither "`conclusory allegations' nor `unsubstantiated assertions' will satisfy the non-movant's burden." Wallace, 80 F.3d at 1047 (quoting Little, 37 F.3d at 1075). Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. "In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2552.

B. Timeliness of Title VII Claims

Exxon contends that Thomas's Title VII claims are time-barred because suit was not filed within ninety days after receipt of her notice of right to sue from the EEOC. "A civil action under Title VII must be brought within ninety days of receipt of a right-to-sue letter from the EEOC." Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.1992); see also Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir.1996); Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir.1988); Espinoza v. Missouri Pac. R.R., 754 F.2d 1247, 1250 (5th Cir.1985); 42 U.S.C. § 2000e-5(f). Title VII provides that if the Commission dismisses a charge or if, within 180 days after a charge is filed, the Commission has not filed a civil action, "the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge."

Espinoza, 754 F.2d at 1248 (quoting 42 U.S.C. § 2000e-5(f)(1)); see also Dao, 96 F.3d at 789.

The filing requirements of Title VII, however, are not jurisdictional prerequisites to bringing suit in federal court, but are more akin to statutes of limitation and are subject to the doctrines of waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,...