Nectoux v. Pennzoil Company ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30775
Summary Calendar
GILMORE M. NECTOUX, JR.,
Plaintiff-Appellant,
versus
PENNZOIL CO.; ET AL.,
Defendants,
PENNZOIL CO.; PENNZOIL PRODUCTS CO.
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-1717)
_________________________________________________________________
December 27, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Claiming retaliation and race discrimination, in violation of
Title VII of the Civil Rights Act of 1964, Gilmore Nectoux contests
the summary judgment granted Defendants. AFFIRMED.
I.
*
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this opinion should not be published and is not precedent except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.
Nectoux was employed by Pennzoil from March 1976 until his
termination in mid-1997. Defendants maintain they terminated
Nectoux because, during a conversation with a co-worker, and in
violation of company policy: Nectoux used racial epithets to
describe the person(s) he suspected had reported him to management
for use of profanity over a company radio; and, among other
threats, stated he would “get” the person who reported him, make
that person “pay”, and “nail [him] to the wall”.
Nectoux sued for retaliation and discrimination, in violation
of Title VII; discrimination, in violation of the Age
Discrimination in Employment Act (ADEA); and discrimination, in
violation of the Americans with Disabilities Act (ADA). Based upon
a very comprehensive opinion, summary judgment was granted
Defendants on all claims. Nectous v. Pennzoil Co., No. 98-1717, at
22 (W.D. La. 6 June 2001).
II.
A summary judgment is reviewed de novo, applying the identical
standard used by the district court. E.g., Stewart v. Murphy, 174
F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906 (1999). Such
judgment should be granted if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law”. FED. R. CIV. P. 56(c). “We view the pleadings
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and summary judgment evidence in the light most favorable to the
nonmovant.” Stewart, 174 F.3d at 533.
A.
“An appellant abandons all issues not raised and argued in its
initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir.) (emphasis in original), cert. denied, 513 U.S. 868
(1994). As defendants note, Nectoux does not challenge the
disposition of his ADEA and ADA claims. (Nectoux does not dispute
this in his reply brief.) Accordingly, we will not consider those
claims.
B.
Nectoux does contest, however, the summary judgment granted on
his Title VII discrimination and retaliation claims.
1.
Regarding the discrimination claim, the district court
determined that Nectoux, who is white, had failed to establish a
prima facie case, because he had provided no evidence that he was
replaced by someone outside of his protected class. See, e.g.,
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir.
2000). At issue is whether Nectoux, whose job title was
“maintenance planner”, was replaced with another white employee,
Don Bohannon, as stated in the affidavits of Patrick Henry and
Steve Rowland.
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a.
Nectoux contends he was actually replaced by Bobby Coley, who
is black. He bases this contention on the affidavit of Raymond
Hemrick, whose position was reliability engineer. Hemrick’s
affidavit makes only the conclusory statement that Coley occupied
the position formerly held by Nectoux.
In contrast, the affidavits of Henry, who was custodian of the
employment records, and Rowland, who was plant manager, support
their conclusion that Coley did not replace Bohannon, testifying
that Bohannon was placed in the position of maintenance planner,
the position formerly occupied by Nectoux, while Coley was placed
in the position of maintenance supervisor. Hemrick’s unsupported
conclusion does not create a genuine issue of material fact. See
McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d
89, 92 (5th Cir. 1995) (“unsupported allegations or affidavits
setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary
judgment”).
b.
Alternatively, Nectoux contends he is not required to show he
was replaced by someone outside of his protected class because
Pennzoil had in place an affirmative action plan that constitutes
direct evidence of discrimination. See, e.g., Wallace v. Texas
Tech Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996) (“Generally, a
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plaintiff proves a prima facie case through a four-element test
that allows an inference of discrimination. But a prima facie case
can also be proven by direct evidence of discriminatory motive.”
(internal citation omitted)). The district court did not address
this direct evidence allegation. This was because Nectoux appears
to have failed to raise this point in district court. The only
mention of the affirmative action plan in Nectoux’s response to the
summary judgment motion is as follows:
Plaintiff has not been provided with the
defendant’s Affirmative Action Plan which was
first requested as part of Interrogatory and
Request For Production in February 1999.
Plaintiff believes if that information were
made available to him, it would greatly aid
his efforts to provide probative evidence of
problems Pennzoil had in achieving racial
diversity at the refinery. It will help
support his contention that blacks were not
employed in acceptable numbers. There was a
need to increase the percentage of African-
Americans in the work force. That provides a
motive for the disparate treatment favoring
African-Americans as plaintiff alleges.
In addition, this paragraph appears under the heading “DISCOVERY
PROBLEMS”.
Assuming arguendo that this statement was sufficient to raise
this issue in the district court, Defendants correctly point out:
Nectoux did include the affirmative action plan in the trial
exhibit book submitted to the court in preparation for trial; but,
during the period between Nectoux’s receipt of the plan in October
2000 and the court’s summary judgment ruling in May 2001, Nectoux
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never supplemented his opposition to summary judgment by placing
this evidence before the court. Accordingly, this evidence was not
in the summary judgment record; and, consequently, Nectoux cannot
rely upon it on appeal. See Muñoz v. Orr, 200 F.3d 291, 303 (5th
Cir.) (affidavit that was struck “was not before the district court
and we do not consider it now as part of plaintiffs’ summary
judgment evidence”), cert. denied, 531 U.S. 812 (2000).
2.
Regarding his Title VII retaliation claim, Nectoux asserts
that his termination was in retaliation for his alleged complaint
to management in January 1997 (he was terminated several months
later) that black employees, specifically a maintenance supervisor,
Curtis Evans, were treated more favorably than white employees.
The district court did not address this claim.
Defendants contend: Nectoux has not shown there was a causal
connection between any such complaints and his termination; such a
showing is necessary to establish a prima facie case of
retaliation; and alternatively, even if Nectoux has established a
prima facie case of retaliation, they have offered a non-
discriminatory reason for his termination, and he has not shown
that reason is pretextual. See, e.g., Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 407-08 (5th Cir. 1999).
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a.
In order to show causal connection, Nectoux is not required to
show that “but for” his engaging in the protected activity he would
not have been terminated, or that such activity was the sole factor
motivating the termination. See Evans v. City of Houston, 246 F.3d
344, 354 (5th Cir. 2001). Nevertheless, Nectoux must demonstrate
that there was a causal link.
Nectoux does not show how his complaint to management and his
termination are causally connected. Accordingly, he has failed to
establish a prima facie case of retaliation.
b.
Alternatively, even if Nectoux established a prima facie case,
he has not shown that the proffered reason for his termination is
pretextual.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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