Frank v. Xerox Corporation ( 2003 )


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  •                                                     United States Court of Appeals
    Fifth Circuit
    F I L E D
    REVISED DECEMBER 15, 2003             September 30, 2003
    Charles R. Fulbruge III
    UNITED STATES COURT OF APPEALS             Clerk
    For the Fifth Circuit
    ________________________________
    No. 02-20516
    ________________________________
    FRANK, ET AL.,
    Plaintiffs-Appellees,
    VERSUS
    XEROX,
    Defendant-Appellant.
    ________________________________
    No. 02-20416
    ________________________________
    HORN, ET AL,
    Plaintiffs-Appellees,
    VERSUS
    XEROX,
    Defendant-Appellant.
    ________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    ________________________________________________
    Before JONES and CLEMENT, Circuit Judges, and FELDMAN, District
    Judge.*
    FELDMAN, District Judge:
    This appeal, which presents several issues, arises out of
    Appellants’ fretful employment relationships with Xerox
    Corporation.   The Appellants in these related cases filed several
    lawsuits against Xerox under Title VII and 42 U.S.C.§1981(2003),
    alleging that because they are black Xerox denied them promotions
    and pay increases and forced them to work in a racially hostile
    work environment.   Xerox moved for summary judgment as to each
    Plaintiff.    The district court granted those motions and denied
    Plaintiffs’ motions for reconsideration.   They appeal the
    district court’s rulings.   We reverse in part, affirm in part,
    and remand.
    I.
    Xerox, a well-known manufacturer and marketer of copying
    machines, is also a provider of facilities management services,
    called Xerox Business Services(XBS), to commercial customers
    throughout the United States.   These management services include
    in-house copying, printing and mailroom services.
    The focus of these lawsuits concerns Xerox’s so-called
    *
    District Judge for the Eastern District of Louisiana,
    sitting by designation.
    2
    Balanced Workforce Initiative(BWF).   Xerox implemented the
    program in the 1990's for the stated purpose of insuring that all
    racial and gender groups were proportionately represented at all
    levels of the company.   The BWF targets were established on an
    annual basis and were based on government labor force data.
    Throughout the time Xerox had the BWF in place, Xerox produced
    reports listing the actual and desired racial and gender
    compositions of each office.    These reports indicated to the
    company that blacks were over-represented and whites were under-
    represented in Xerox’s Houston office in comparison to the local
    population.
    In 1991, the general manager of the Houston XBS office, Doug
    Durham, directed that the Houston office create its own localized
    BWF reports to remedy the disproportionate racial representation.
    The reports set specific racial goals for each job and grade
    level and indicated whether there were any disproportionate
    representations.
    Another one of Xerox’s practices that is under attack in
    these employee disputes is Xerox’s use of “Minority Roundtables.”
    In 1997, to address the concerns of several of its black
    employees, Xerox decided to hold “Minority Roundtables” at its
    Houston office.    Xerox insists that at these meetings it tried to
    alleviate the misperceptions of the participants.   For example,
    many of the participants felt that Xerox discriminated against
    3
    black employees in hiring, promotions and compensation.       They
    also voiced concerns about the lack of any blacks on Durham’s
    senior management team.
    We turn now to the employees who sued.
    II.
    A.   Carol Frank
    Carol Frank joined Xerox’s Houston office in February 1985
    as a Production Supervisor III.        During her employment at Xerox,
    Frank received several promotions and salary increases.       In
    September 1988, Frank was promoted to Supervisor II and she
    worked in that role until 1991, when she applied to become a
    Production Manager/Manager of Customer Operations(MCO).       Frank
    was not chosen for the position.       Xerox claimed that Frank was
    not qualified for the position and gave the job to Joe Olivarez,
    a Hispanic male.   Xerox stated that Olivarez was the most
    qualified candidate for the job.
    In 1997 Frank applied for the Customer First Manager
    Position.   After interviewing the candidates, Durham decided not
    to fill the position because he believed none of the candidates
    was sufficiently qualified.   Frank asserts that she believed at
    4
    the time that she had been discriminated against because of her
    race.     Frank also applied for another MCO position in December
    1998.     Again, Olivarez was chosen over her.   Xerox reiterates
    that he was chosen because he was the most qualified candidate.
    In March 1999 Frank claims she began to suffer from
    harassing and discriminatory treatment by her supervisor, Linda
    Carter.     She claims Carter’s conduct caused her to resign from
    her position.     On March 29, 1999, Frank submitted a letter of
    resignation and gave two weeks’ notice.     Thereafter, she filed a
    discrimination charge with the Equal Employment Opportunity
    Commission(EEOC), alleging race, gender and disability
    discrimination.     The EEOC found no cause of action and dismissed
    the charge on March 28, 2000.
    B.     Henrietta Williams
    Henrietta Williams started working at Xerox in 1982 as a
    Production Operator II in the Houston office.      During the first
    seven years of her employment, she received two grade level
    salary increases and was promoted to Training Administrator.
    Williams claims that after Doug Durham transferred to the Houston
    office from New York, she was forced out of her Training
    Administrator position and replaced by Sharon Talty, a white
    female, and she was demoted to Production Supervisor.      Xerox
    responds that in 1998 Williams attempted to resign, but that
    5
    Durham and another manager persuaded her to stay.    In 1999,
    Williams officially resigned.    Williams asserts that she resigned
    because of the racially discriminatory working conditions,
    constant harassment, lack of employment opportunities and denial
    of pay raises.    Xerox maintains that Williams never asserted
    discrimination or intolerable working conditions when she left,
    and that she had not actually applied for a promotion in her last
    three years at the company.
    C.    Sibyl Arterberry
    Sibyl Arterberry began her career at Xerox in 1991 as a
    Production Operator IV.    By 1995 she had been promoted several
    times, and by 1997 she was a Lead Account Associate for one of
    Xerox’s accounts.    Arterberry claims that she was denied pay
    increases because of her race.    Xerox asserts that she was not
    eligible for a pay increase in her Account Associate position
    because she had reached the highest grade level for her position.
    Xerox adds that it tried to transfer her into another position
    which would allow her to receive a higher salary, but she
    refused.    Arterberry was later transferred to another account and
    did get a pay increase.    Arterberry was still working for Xerox
    when the company was sued.
    D.    Iris Debose
    6
    Iris Debose came to work at Xerox in 1985.       For the first
    five years of her employment she worked as an Associate Customer
    Services Support Representative.       After that time, her title was
    changed to Administrative Secretary, although she performed the
    same duties.   Debose claims that she received outstanding reviews
    of her performance until 1991 when Doug Durham transferred to the
    Houston office.   She says after his arrival, she was denied
    promotions to positions which were eventually given to white
    females with inferior qualifications.       She also claims that she
    was harassed and denied promotions, equal pay and equal pay
    raises because she participated in the Minority Roundtables.
    Debose resigned from Xerox in 1999.
    E.   Cynthia Walker
    Cynthia Walker was hired in September 1985 as a Production
    Operator in the Houston office.        By 1990 she had received several
    promotions including a promotion to Customer Support
    Representative, a position she held until September 1997.       From
    1990 until 1997, Walker received annual merit increases and was
    promoted to higher pay grade levels.       In addition, during that
    same time period, Walker applied for three different positions.
    Two of the positions had been eliminated before they were filled
    and the third position was not awarded to her, Xerox claimed,
    because she was not qualified.    In 1997 Walker was transferred to
    7
    a Support Analyst position and received a five percent pay raise.
    In 1998 she was transferred to a lateral position.       In April
    2000, after several organizational changes at the Houston office,
    Walker resigned citing lack of opportunities.       Apparently, she
    believed that she should have been offered positions that were
    given to two of her non-black co-workers.
    F.   Derrey Horn
    Horn began work at Xerox in May 1984 as an entry level
    Production Operator IV.    However, over the years Horn quickly
    moved up in the company.    In 2002 Xerox received an anonymous
    complaint that some of the female employees had been sexually
    harassed by Horn.    After an investigation, Xerox determined that
    the complaints were legitimate and terminated his employment.
    Horn did not file a discrimination charge with the EEOC.
    Instead, he joined in this lawsuit with the other five
    plaintiffs.
    III.
    We review summary judgment de novo.      Walker v. Thompson, 
    214 F.3d 615
    , 624 (5th Cir. 2000).     Summary judgment is appropriate “if
    the   pleadings,    depositions,   answers   to   interrogatories,    and
    8
    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   judgment   as   a   matter   of   law.”
    Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 
    106 S.Ct. 2548
    , 2552 (1986).     "If the moving party meets the initial burden
    of showing there is no genuine issue of material fact, the burden
    shifts to the nonmoving party to produce evidence or designate
    specific facts showing the existence of a genuine issue for trial."
    Allen v. Rapides Parish Sch.Bd., 
    204 F.3d 619
    , 621 (5th Cir.
    2000)(internal quotations and citations omitted). Doubts are to be
    resolved in favor of the nonmoving party, and any reasonable
    inferences are to be drawn in favor of that party.            See Burch v.
    City of Nacogdoches, 
    174 F.3d 615
    , 619 (5th Cir. 1999).
    A.   Disparate Impact Claims
    Williams, Arterberry, Debose, Walker and Horn all asserted
    disparate impact claims against Xerox.       The district court granted
    summary judgment in favor of Xerox on all of these issues.
    To establish a disparate impact claim, the claimants must
    prove as part of their prima facie case that Xerox maintains a
    facially-neutral policy or practice that caused a disparate impact
    on its black employees.     See 42 U.S.C. §2000e-2(k)(1)(A)(i)(2003);
    Gonzales v. City of New Braunfels, 
    176 F.3d 834
    , 839 n.26 (5th Cir.
    1999).   To do this, the claimants must engage in a “systematic
    9
    analysis” of the policy or practice.       Munoz v. Orr, 
    200 F.3d 291
    ,
    299(5th Cir. 1999).        In doing so, they “must, of necessity, rely
    heavily on statistical proof.”       
    Id. at 300
    .
    Appellants point to the BWF reports and to evidence of the
    statistical data that Durham used from 1994 to 1999 to reduce the
    percentage of black employees in Houston. While Xerox asserts that
    the Plaintiffs’ statistical evidence is inaccurate, incomplete and
    has not been analyzed, we find that the evidence creates a material
    issue of fact as to disparity and, therefore, summary judgment was
    inappropriate.
    B.    Salary Disparity Claims
    Arterberry, Debose, Williams, Walker and Horn all asserted
    salary disparity claims against Xerox.       In reviewing the record,
    we find that the district court failed to address these claims.
    Thus, we remand this issue to the district court for further
    proceedings.
    C.   Adverse Employment Action Claims
    Frank, Debose, Williams, Arterberry and Walker all asserted
    claims for several adverse employment actions that took place
    throughout the 1990s.       The district court found that most of
    these claims were time-barred.       Appellants assert that the
    10
    district court erred in determining that the claims were time-
    barred; they urge that the continuing violations doctrine applies
    to their claims.
    i.   Timeliness of Claims
    A claimant must file a Title VII discrimination claim with
    the EEOC within 300 days of the challenged discrimination.        See
    42 U.S.C. ~2000e-5(e)(1)(2003); Byers v. Dallas Morning News, 
    209 F.3d 419
    , 424 (5th Cir. 2000).   Only two of the employees, Carol
    Frank and Cynthia Walker, filed discrimination charges with the
    EEOC.    The others can only pursue Title VII claims if they can
    "piggyback" onto a timely filed claim by either Frank or Walker.
    See Allen v. United States Steel Co., 
    665 F.2d 689
    , 695 (5th Cir.
    1982).    Frank filed her claim on November 15, 1999, and Walker
    filed her claim on June 19, 2000.      Thus, the district court
    correctly determined that the date for determining timeliness was
    300 days prior to the filing of the first filed charge, or
    January 19, 1999.    See Celestine v. Petroleos de Venezuela, S.A.,
    
    266 F.3d 343
    , 351 (5th Cir. 2001).     Any bad conduct that occurred
    prior to that date would be time-barred.      See 
    id.
       Similarly, one
    must file a discrimination claim under §1981 within two years of
    the adverse employment action.    See Byers, 
    209 F.3d at 424
    .     This
    lawsuit was filed on June 29, 2000.      Thus, claims for any adverse
    employment actions under §1981 that occurred prior to June 29,
    1998 are time-barred.
    11
    ii.    Continuing Violations Doctrine
    Appellants argue that the district court erred in finding
    that the continuing violations doctrine does not apply to their
    claims.   They say that the continuing violations doctrine applies
    because: 1) the various adverse employment actions constituted an
    organized scheme to discriminate rather than discrete
    occurrences; and 2)    that their claims show a "pattern-or-
    practice" of discrimination which allows them to be considered
    continuing violations.    We affirm the district court’s ruling
    that the continuing violations doctrine does not apply here.
    Under the continuing violations doctrine, a plaintiff may
    complain of otherwise time-barred discriminatory acts if it can
    be shown that the discrimination manifested itself over time,
    rather than in a series of discrete acts.    See Huckabay v. Moore,
    
    142 F.3d 233
    , 238-39 (5th Cir. 1998).    However, in Huckabay, we
    also confirmed the rule that discrete actions, such as those
    asserted by Appellants, are not entitled to the shelter of the
    continuing violation doctrine. 
    Id. at 239-40
    .    Appellants
    complain of separate and varied acts and decisions that occurred
    at different times and discretely applied in different ways to
    different employees.    And, beyond speculation, we cannot say that
    the record confirms an organized or continuing effort to
    discriminate.   The pattern-or-practice argument also fails.      See
    Celestine, 
    266 F.3d at 355-56
     (pattern-or-practice method of
    12
    proof not available in private, non-class action lawsuits).      In
    addition, one is expected to act as soon as the facts of
    discrimination are or should be apparent to a reasonably prudent
    person similarly situated.     See Messer v. Meno, 
    130 F.3d 130
    ,
    134-35(5th Cir. 1997).
    D.    The Remaining Adverse Employment Action Claims
    After correctly determining that most of Appellants’ claims
    were time-barred and not saved by the continuing violation doctrine,
    the district court then dismissed their remaining claims for failure
    to satisfy their burden of proof in establishing discrimination.
    We reverse the district court on this issue.
    In addressing the remaining claims, the district court applied
    the burden-shifting framework set out in McDonnell Douglas Corp. v.
    Green, 
    93 S.Ct. 1817
    , 1824-26 (1973).     McDonnell Douglas instructs
    that the plaintiff must first establish a prima facie case of
    discrimination.    
    Id.
         Once the plaintiff presents a prima facie
    case,   the    defendant    must   then   articulate   a   legitimate,
    nondiscriminatory reason for the questioned employment action. 
    Id.
    If the defendant is able to do so, the burden shifts back to the
    plaintiff to produce evidence that the defendant's articulated
    reason is merely a pretext for discrimination. 
    Id.
    To establish a prima facie case of discrimination, a plaintiff
    must show: (1)that she was a member of a protected class; (2) that
    13
    she was qualified for the position; (3) that she was discharged; and
    (4) after she was discharged, she was replaced with a person who is
    not a member of the protected class. Bauer v. Albermarle Corp., 
    169 F.3d 962
    , 966 (5th Cir. 1999).        Of course, the plaintiff may always
    present   a   prima    facie   case   by    providing    direct    evidence   of
    discrimination.       Fierros v. Tex. Dep't of Health, 
    274 F.3d 187
    , 191
    (5th Cir.2001).    We understand that when there is sufficient direct
    evidence of discriminatory motive, the McDonnell Douglas framework
    does not apply.       See, e.g., Price Waterhouse v. Hopkins, 
    490 U.S. 228
     (1989).     And so, our court has earlier held that when                  "a
    plaintiff presents credible direct evidence that discriminatory
    animus in part motivated or was a substantial factor in the
    contested employment action, the burden of proof shifts to the
    employer to establish by a preponderance of the evidence that the
    same decision would have been made regardless of the forbidden
    factor." Brown v. E. Miss. Elec. Power Ass’n, 
    989 F.2d 858
    , 861(5th
    Cir. 1993).
    We find that the existence of the BWF program is sufficient to
    constitute direct evidence of a form or practice of discrimination.
    See Bass v. Bd. of County Comm’rs, Orange County, Fla., 
    256 F.3d 1095
    , 1110 (11th Cir. 2001).          "[T]he existence of an affirmative
    action plan," the Eleventh Circuit has written, "when combined with
    evidence that the plan was followed in an employment decision is
    sufficient    to      constitute   direct     evidence    of      the   unlawful
    14
    discrimination unless the plan is valid."                     Id. at 1111; see Dallas
    Fire Fighters Ass’n v. City of Dallas, Tex., 
    150 F.3d 438
    , 440-42
    (5th Cir. 1998) (discussing factors that weigh on the validity of
    affirmative action plans).               See also Messer, 
    130 F.3d at 135-36
    .
    Here, in the BWF summary reports, Xerox candidly identified explicit
    racial goals for each job and grade level.                     The reports also stated
    that blacks were over-represented and whites were under-represented
    in almost every job and grade level at the Houston office.                              Senior
    staff       notes   and   evaluations        also    indicate       that    managers       were
    evaluated on how well they complied with the BWF objectives. A jury
    looking at these facts could find that Xerox considered race in
    fashioning its employment policies and that because Plaintiffs were
    black, their employment opportunities had been limited.                                 Because
    the district court ignored the existence of the BWF program and
    applied the McDonnell Douglas standard when it analyzed Plaintiffs’
    non-time-barred claims,1 we reverse the district court’s dismissal
    of these claims.
    E.    Hostile Work Environment Claims
    Debose, Williams, Arterberry and Walker also asserted claims
    for hostile work environment.               We affirm the district court’s grant
    1
    The non-time-barred claims are the Title VII claims that occurred after January 19,
    1999 and the §1981 claims that occurred after June 29, 1998.
    15
    of summary judgment in favor of Xerox as to these claims.           We find
    that no serious issues of material fact exist.
    To prevail on a hostile work environment claim, the Plaintiffs
    must prove that: 1) they belong to a protected group; 2) they were
    subjected to unwelcome harassment; 3) the harassment complained of
    was based on race; and 4) the harassment affected a term, condition,
    or privilege of employment. See Celestine, 
    266 F.3d at 353-54
    . The
    Plaintiffs must subjectively perceive the harassment as sufficiently
    severe    or   pervasive,   and   this    subjective   perception   must   be
    objectively reasonable.      Harris v. Forklift Sys., Inc., 
    114 S.Ct. 367
     (1993).      The fact-finder must consider the frequency of the
    discriminatory conduct, its severity, whether it is physically
    threatening or humiliating, and whether it unreasonably interferes
    with an employee’s work performance.         Walker v. Thompson, 
    214 F.3d at 625
    .    Here, the Appellants assert that the BWF target goals were
    so intimidating, severe and pervasive, that it was objectively
    reasonable for them and other black employees to believe that they
    were in a racially hostile work environment that precluded them from
    advancing to a higher level because of their race.
    Xerox counters that the use of the BWF reports did not and
    could not objectively create a hostile work environment, and that
    Appellants have not presented any evidence of how the use of the
    reports actually affected them or any other employee.           Xerox adds
    that Appellants’ subjective belief that the company intended to use
    16
    the BWF reports to avoid promoting and to terminate black employees
    is not objectively reasonable, and, therefore, they cannot satisfy
    the severe and pervasive requirements that are essential to prove
    a hostile work environment claim.      We agree.   Appellants have not
    provided any precedent in support of their argument that the
    implementation of an affirmative action plan equates to a hostile
    work environment.     We also would note that the record reflects no
    evidence of severe or pervasive harassment.
    Conclusion
    To sum up the foregoing discussion, the district court’s grant
    of summary judgment on the disparate impact claims is reversed and
    remanded.   The issue of salary disparity is remanded.    The district
    court’s grant of summary judgment on non-time-barred claims is
    reversed and remanded.     The district court’s ruling on timeliness
    and the continuing violations doctrine is affirmed.       The district
    court’s grant of summary judgment on the hostile work environment
    claims is affirmed.
    This case in short, is AFFIRMED in Part, REVERSED in Part, and
    Remanded for proceedings consistent herewith.
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