Smith v. Libbey Glass ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30674
LARRY W. SMITH,
Plaintiff-Appellant,
v.
LIBBEY GLASS, A DIVISION OF OWENS-ILLINOIS; ET AL.;
Defendants,
LIBBEY INC.,
Defendant-Appellee,
Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-1937)
January 13, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
PER CURIAM:*
Larry Smith filed the present action against Libbey Inc.
(“Libbey”) seeking declaratory, injunctive, and monetary relief for
alleged racial discrimination and retaliation in violation of Title
VII, 42 U.S.C. §§ 2000e-2, 2000e-3.1 Following trial, the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Smith also asserted claims under 42 U.S.C. § 1981 and La.
Rev. Stat. §§ 23:1006, 51:2231, 51:2242, 51:2256, 51:2264. The
applicable burden of proof for these statutes is equivalent to the
plaintiff’s burden under Title VII. See, e.g., Lawrence v.
University of Texas Med. Branch, 163 F.3d 309, 311 (5th Cir. 1999)
(Section 1981); Plummer v. Marriott Corp., 654 So. 2d 843, 848 (La.
court entered a judgment adverse to Smith on partial findings
pursuant to Fed. R. Civ. P. 52(c). Finding no error, we affirm.2
Smith was employed by Libbey in 1980 as a bench
machinist. In this position, Smith used small hand tools to grind
and polish molds. Prior to his employment, Smith had been
certified as a machine operator. Machine operators operate
machining equipment. Neither operators nor bench machinists are
capable of programming machining equipment to make parts from a
blueprint. This is the work of machinists -- a position requiring
specialized training, experience, and skills.
In order to become a machinist at Libbey, an individual
may train through an apprenticeship program or, if the applicant
has at least five years experience as a machinist, he may test into
the position. The machinist test required an applicant to read a
blueprint and then program a machine to construct a metal part.
During Smith’s tenure with Libbey, no apprenticeship classes were
started. Thus, the only way Smith could have become a machinist at
Libbey was through successful completion of the machinist test.
In 1988, Smith and four white bench machinists filed a
union grievance requesting that Libbey recognize the workers as
machinists. The grievance was settled when Libbey agreed to give
the five employees the machinist test. Smith was the only employee
Ct. App. 1995) (Louisiana discrimination statutes).
2
When reviewing a judgment on partial findings, this court
examines the factual component of the judgment, and all inferences
drawn therefrom, for clear error. See Downey v. Denton County,
Texas, 119 F.3d 381, 385 (5th Cir. 1997). Questions of law are
reviewed de novo. See id.2
involved in the grievance who actually sought to take the machinist
test.
Smith alleges that following the grievance settlement
Libbey refused to give him the test, did not allow him to practice
on the machining equipment, and generally engaged in a protracted
course of racial discrimination. This pattern of discriminatory
conduct allegedly began in 1988. Smith did not file an EEOC charge
covering the discriminatory conduct until November 17, 1995,
however.3 In his EEOC charge, Smith challenged Libbey’s failure to
promote him to machinist, its refusal to test him for the machinist
position, and its denial of his admission to a training class.
At trial, the district court refused to consider Smith’s
racially hostile work environment allegations because Smith’s EEOC
charge and district court complaint had not raised the issue. The
district court also rejected Smith’s attempt to amend his
complaint, within four days of trial and over a year after the
cutoff date for amendments, to assert a hostile work environment
claim. Neither decision was erroneous. Smith did not allege a
hostile work environment in his EEOC charge, and the allegations
contained therein would not reasonably lead to a hostile work
environment investigation. Accordingly, Smith was precluded from
pursuing this administratively unexhausted claim,4 and the district
3
In 1988, Libbey fired Smith for practicing on machining
equipment during working hours. Smith filed an EEOC complaint
protesting his discharge. Libbey settled this claim by reinstating
Smith and expunging the dismissal from company records.
4
See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466-
67 (5th Cir. 1970).
3
court did not abuse its discretion by denying Smith’s amendment.5
Without a valid hostile work environment claim, Smith
could not allege a continuing violation of Title VII. See Huckabay
v. Moore, 142 F.3d 233, 238-39 (5th Cir. 1998). Smith was well
aware of and often exercised his rights, both within the union
grievance procedure and under Title VII. He asserted failures to
promote and retaliation, discrete occurrences that do not form the
basis of a continuing violation claim. See id. at 239. As a
result, Smith was foreclosed from pursuing his failure to promote
claims unless they arose in the 300-day period before the filing of
his EEOC charge. See Webb v. Cardiothoracic Surgery Assocs., 139
F.3d 532, 537 (5th Cir. 1998); see also 42 U.S.C. § 2000e-5(e)(1).
The Title VII limitations period precludes his prosecution of
claims based on several acts forming the basis of this suit,
including his claim that Libbey denied him admission to training
classes.
Two occasions on which Smith alleges he was denied a
promotion are not time-barred. Once in 1995 and again in 1996,
Smith applied for a machinist position. In 1995, Smith refused to
take the machinist test when informed that the test was a “one-shot
deal” -- i.e., he would only be given one opportunity to take the
exam. In 1996, Smith refused to take the test because it was a
“one-shot deal” and because the company initially would only permit
him three days of practice on the machining equipment. When the
5
See PYCA Indus., Inc. v. Harrison County Waste Water
Management Dist., 81 F.3d 1412, 1420 (5th Cir. 1996).
4
company increased Smith’s practice time to seven days, Smith still
refused to take the exam. On this record, Smith cannot argue that
Libbey discriminatorily refused to permit him to sit for the
machinist test.
The district court correctly concluded that Smith was not
qualified for the machinist position. To make out a failure to
promote claim, Smith must prove that he was qualified for the
position he sought. See Gonzalez v. Carlin, 907 F.2d 573, 578 (5th
Cir. 1990). Not only had Smith refused to take the machinist exam
-- a necessary prerequisite to the promotion -- but Smith also
failed a prior mold inspector exam that tested his ability to read
blueprints. The postings for which Smith applied clearly stated
that an applicant must be able to read blueprints to qualify for
the position. Smith’s argument that he was hired as a “machinist”
and, thus, was presumptively qualified for the position is
unconvincing. The bench machinist position and the machinist
position clearly required different qualifications, and just as
clearly, reading blueprints was essential.
Smith has failed to show that the trial court clearly
erred. Smith’s inability to establish his qualification for the
sought-after position not only undermines his failure to promote
claim, but it also prevents his retaliation claim from succeeding.
See Gonzalez, 907 F.2d at 578.
AFFIRMED.
5