Armstrong v. City of Dallas ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-1133
Summary Calendar
TROY L. ARMSTRONG,
Plaintiff-Appellant,
versus
CITY OF DALLAS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
( July 22, 1993 )
Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Troy L. Armstrong, formerly a Dallas fire fighter, appeals the
adverse summary judgment rejecting his Title VII discrimination
claim against the City. Finding no error, we affirm.
Background
Armstrong joined the Dallas Fire Department in June 1970 as a
rescue officer, ultimately attaining the rank of second driver
before retiring with benefits in 1991. He seeks relief for alleged
official harassment by his superiors on account of his race and
because he filed a complaint with the Equal Employment Opportunity
Commission.
In 1987 the Dallas Fire Department responded to a perceived
crisis by adopting a Physical Fitness Weight Program. The program
established maximum body-weight standards based on height and body
type. It also initiated weight loss goals for fire fighters
exceeding the standards.
Shortly after the program was implemented forces within the
department purportedly lined up against Armstrong because "he
assumed the role of spokesman on behalf of his black co-workers" in
connection with a racially charged incident. Specifically,
Armstrong cites the fact that he was transferred to another shift
and was informed, for the first time, of the Physical Fitness
Weight Program. At that time Armstrong, who stood 6'3", weighed
360 pounds. Placed in the largest body-type category, he exceeded
the maximum weight acceptable under the guidelines by 158 pounds.
He was too fat to fit comfortably behind the wheel of the truck he
was to drive. Although many fire fighters exceeded the average
recommended weight, only Armstrong was several standard deviations
from the mean in the "Very Poor" category.
Armstrong participated in the weight-loss program, hopeful
that he would lose weight at the rate prescribed in the guidelines
-- two to three pounds per month. The reverse happened; several
months later he weighed 426 pounds. At this point the fire
department removed him from active duty, advised him that his
weight was a threat to his health, and asked him to lose two to
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three pounds per week. According to a memorandum written by his
superior and, indicating receipt, signed by Armstrong, "[a]
realistic long-range goal for you to attain in the future is to
improve your current weight classification from the 'Very Poor'
category to the 'Fair' category." The memo cautioned of adverse
health consequences if Armstrong exceeded the suggested average
weight-loss rate of two to three pounds per week. This caution
proved entirely unnecessary.
Armstrong responded to these developments by filing a
complaint with the EEOC alleging racial discrimination. In
exchange for dismissal of the complaint, the department agreed not
to retaliate for the filing and to return Armstrong to active
service, subject to his losing three to five pounds per month.
Armstrong returned to driving, dieting, and exercising in November
1988, aware that he would be removed from active service if he
failed to lose at least three pounds during any two consecutive
months.
Although Armstrong again failed to lose weight at the agreed
rate, the department did not immediately remove him from active
service. Rather, employing a carrot and stick approach, the
department forged still another agreement in August 1989. This
agreement made clear, however, that if Armstrong did not adhere to
his diet he automatically would be removed from active duty and
would face an array of disciplinary measures, including
termination.
Two months later Armstrong had gained 13 pounds. Citing his
3
failure to abide by the agreement and the fact that his weight
constituted a continuing threat to the health and safety of
himself, his fellow fire fighters, and the citizens of Dallas, the
department removed Armstrong from fire-fighting status. The
department reported Armstrong's failure to abide by the weight-loss
agreement to the Dallas Civil Service Department.
In September 1989 Armstrong was issued a letter of counseling
for losing his fire-fighting coat. Armstrong responded to his
removal from active service and the letter of counseling by filing
another complaint with the EEOC, alleging retaliation for his
earlier filing. After failing to persuade the EEOC, Armstrong
retired with benefits and instituted the instant action.
Armstrong contends that the City has used his weight as a
pretext for retaliation for his first EEOC complaint. He also
claims that this retaliation violates the agreement reached after
he withdrew that complaint. The district court found no genuine
issue of material fact and rendered summary judgment in the City's
favor. Armstrong timely appealed.
Analysis
We review the grant of summary judgment de novo, applying the
same standard as the district court. This case presents the
opportunity for clarification of that standard in disparate
treatment cases. In McDonnell Douglas v. Green,1 the Supreme Court
1
411 U.S. 792 (1973).
4
enumerated the order of proof in discrimination cases brought under
the Civil Rights Act of 1964.2 As in any other case in which the
plaintiff seeks to enforce rights under a statute, he must "carry
the initial burden under the statute of establishing" facts
sufficient to warrant recovery.3 At this point a rebuttable
presumption arises.4 Subsequent decisions clarify the effect and
scope of this presumption.
The presumption obligates the defendant to articulate a
legitimate, nondiscriminatory business reason for the challenged
2
That proof system has been extended to a number of other
statutory settings. E.g., Hazen Paper Co. v. Biggins, 113 S. Ct.
1701, 1706 (1993) ("In a disparate treatment case, liability
depends on whether the protected trait (under the ADEA, age)
actually motivated the employer's decision.") (citing United States
Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711 (1983)); Patterson
v. McLean Credit Union, 491 U.S. 164, 186-87 (1989) (42 U.S.C.
§ 1981); Humphreys v. Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir.
1992) (ERISA, 29 U.S.C. § 1140).
3
The plaintiff in a Title VII retaliation case, such as
the instant case, has made a showing sufficient to create a
presumption of discrimination and, all else being equal, to defeat
a motion for directed verdict if he can show that (1) he
participated in a statutorily protected activity; (2) was the
object of adverse employment action; and (3) there is a causal
nexus between the activity and the adverse action. DeAnda v. St.
Joseph Hosp., 671 F.2d 850 (5th Cir. 1982).
4
More recently the Court has described this as an
inference. E.g., Wards Cove Packing Co., Inc. v. Antonio, 490 U.S.
642, 670 (1989); Price Waterhouse v. Hopkins, 490 U.S. 228, 286
(1989); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 1004
(1988) (Blackmun, J., concurring); United States Postal Serv. Bd.
of Gov. v. Aikens, 453 U.S. 902, 905 (1981) (Marshall, J.
dissenting); Board of Trustees of Keene State College v. Sweeney,
439 U.S. 24, 24 (1978) (per curiam); Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978); International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 358 (1977).
5
action.5 The burden of producing evidence from which a rational
trier-of-fact could find discrimination, however, always remains
with the plaintiff.6 In United States Postal Service Board of
Governors v. Aikens,7 the Court made clear that once the evidence
is closed, whether the plaintiff offered proof sufficient to secure
the presumption is not the determinant.8 Rather, the question is
whether the employee has carried the ultimate burden of proving
discrimination, an inquiry requiring consideration of all of the
evidence, direct and circumstantial, relating not only to the
plaintiff's oft-referred to prima facie case, but also the
defendant's proffered reason(s) and any other relevant evidence.
A motion for summary judgment poses essentially the same legal
5
The defendant's burden in a summary judgment setting is
not to persuade that the explanation is correct but, rather, to
preserve a genuine factual issue with respect to the existence vel
non of discrimination. Texas Dep't of Comm. Affairs v. Burdine,
450 U.S. 248, 254 (1981); Visser v. Packer Eng'g Assoc., Inc., 924
F.2d 655 (7th Cir. 1991) ("If the employer offers a pretext -- a
phony reason -- for why it fired the employee, then the trier of
fact is permitted, although not compelled, to infer that the real
reason was age.")(citations omitted).
6
Hence, the employee does not necessarily prevail by
producing some evidence of discrimination and disproving the
employer's proffered explanation. Burdine. Rather, the employee
may prevail, and indeed will prevail, upon persuading the trier of
fact of the ultimate issue -- intentional discrimination. See
Aikens.
7
460 U.S. 711 (1983). See also Walther v. Lone Star Gas
Co., 952 F.2d 119, 122 (5th Cir. 1992).
8
"The method suggested in McDonnell Douglas for pursuing
this inquiry, however, was never intended to be rigid, mechanized,
or ritualistic." Furnco Constr., 438 U.S. at 577.
6
inquiry as a motion for judgment as a matter of law9 or a challenge
to the sufficiency of the evidence on appeal.10 The legal decision
at each of these litigation junctures is whether the record
evidence is so compelling that a particular party must prevail as
a matter of law.11
The court's attention, when addressing a motion for judgment
as a matter of law, must focus on the ultimate issue(s) in light of
the controlling evidentiary burden.12 The essential fact question
in any employment discrimination case in which the plaintiff
alleges disparate treatment is "not whether the plaintiff has
established a prima facie case or demonstrated pretext, but
'whether the defendant has discriminated against the plaintiff.'"13
9
"[T]his standard mirrors the standard for a directed
verdict under Rule 50." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Rule 50 now refers to this motion and the former
motion for judgment notwithstanding the verdict as motions for
judgment as a matter of law.
10
Granberry v. O'Barr, 866 F.2d 112, 113 (5th Cir. 1988)
(noting that standard of review of sufficiency of the evidence to
support a jury verdict is the same as that applied in awarding
directed verdicts or judgments notwithstanding the verdict).
11
Anderson, 477 U.S. at 252.
12
We no longer ask whether literally little evidence, i.e.,
a scintilla or less, exists but, whether the nonmovant could, on
the strength of the record evidence, carry the burden of persuasion
with a reasonable jury. Id. at 251.
13
Grigsby v. Reynolds Co., 821 F.2d 590, 595 (11th Cir.
1987) (quoting Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184
(11th Cir. 1984) (quoting in turn Aikens)). See also MacDonald v.
Eastern Wyoming Mental Health Ctr., 941 F.2d 1115 (10th Cir. 1991);
Haglof v. Northwestern Rehab., Inc., 910 F.2d 492, 495 (8th Cir.
7
This is not to suggest that the evidence which would be
sufficient to create a presumption of discrimination at trial is
somehow rendered irrelevant. To the contrary, that evidence might
be conclusive. What is irrelevant, however, in the determination
whether the evidence supports a judgment as a matter of law, is the
stage of the unfolding of the proof. If the summary judgment
record consists only of evidence that the plaintiff engaged in
protected activity and, as a result, was treated adversely, the
proof of discrimination would be conclusive.14 Such a scenario is
seldom presented; the employer typically offers evidence countering
the plaintiff's proof, thus preserving the ultimate issue for the
trier-of-fact. When either party moves for summary judgment, all
of the evidence must be considered in the determination whether the
plaintiff has sustained the burden of proving discrimination.
In the case at bar, the question before us is whether the
evidence in the summary judgment record establishes, as a matter of
law, that Armstrong was not the victim of discrimination by his
employer. The once frequently repeated characterization of summary
judgment as a disfavored procedural shortcut no longer appertains.15
1990) (Stuart, J. concurring); Palucki v. Sears, Roebuck & Co., 879
F.2d 1568, 1570 (7th Cir. 1989).
14
Burdine, 450 U.S. at 254 n.7; Mesnick v. G.E., 950 F.2d
816 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965 (1992).
15
Anderson; Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986).
Compare Judge Wisdom's opinion for this court in 1959. Bruce v.
Travelers Ins. Co., 266 F.2d 781, 786 (5th Cir. 1959).
8
Summary judgment is appropriate where critical evidence is so weak
or tenuous on an essential fact that it could not support a
judgment in favor of the nonmovant, or where it is so overwhelming
that it mandates judgment in favor of the movant. In all
instances, the nonmovant is entitled to a fair opportunity to
discover and produce evidence before the summary judgment record
may be closed.16 But in all instances, once a motion for summary
judgment has pierced the allegations contained in either the
complaint or answer, produce one must or face the potential of an
adverse summary judgment.17
The only evidence available to support an inference of
discrimination in the case before us is the temporal proximity of
the alleged racial incident and the application of the weight
guidelines.18 The acceptance of this as a reasonable inference
would not end our inquiry. Instead, where, as here, the employer
offers a legitimate, nondiscriminatory explanation for the adverse
action, the burden is on the employee to show that the explanation
16
Fed.R.Civ.P. 56(f); Celotex, 477 U.S. at 322; Cf. Aikens,
460 U.S. at 716 n.5.
17
"[R]egardless of whether the moving party accompanies its
summary judgment motion with affidavits, the motion may, and
should, be granted so long as whatever is before the district court
demonstrates that the standard for the entry of summary judgment
. . . is satisfied." Celotex, 477 U.s. at 323.
18
Cf. Rath v. Selection Research, Inc., 978 F.2d 1087, 1090
(8th Cir. 1992) (discharge soon after protected activity is
indirect proof of causal connection).
9
is merely a pretext for discrimination.19 We conclude that the City
established a legitimate, nondiscriminatory reason for its
actions,20 namely, Armstrong's excessive weight and the loss of his
fire-fighting coat, and that the summary judgment record is devoid
of evidence of pretext.
A studied review of the record convinces us that no reasonable
factfinder could find Armstrong's weight to have been a pretext for
discrimination. To the contrary, a reasonable juror would have to
find that the decision to put Armstrong on inactive duty and to
demand that he lose weight was mandated by his unacceptable
physical size.
The department's demands that Armstrong comply with its weight
guidelines, and its concomitant admonitions of adverse consequences
if he failed to do so, were neither unjustified nor in any way
related to his EEOC filing. There is no evidentiary support for
Armstrong's claim that the fire department was retaliating against
him for filing a complaint with the EEOC. His Title VII and breach
of contract claims did not present a genuine issue of material fact
19
Burdine. The City explained that Armstrong's excessive
weight was the cause of its demand that he slim down. The
explanation for the letter of counseling was similarly
self-evident. Neither obesity nor misconduct is protected by
Title VII.
20
There is no suggestion that the guidelines were a vehicle
for the expression of racial animus. They were applied to all
members of the fire department in an unquestionably objective and
neutral manner, based on such factors as weight, height, and elbow
size. Armstrong was the only fire fighter who, based on these
objective criteria, fell into the "Very Poor" category.
10
and summary judgment for defendant was appropriate.
AFFIRMED.
11