Weber vs. Gainey's Concrete, (5th Cir. 1998)

Docket Number: 97-31267

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* Pursuant to 5 TH C IR . R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. 2 F E D . R. C IV . P. 50(a), pertaining to judgments as a matter of law, makes clear that a district court should invoke this rule only in a jury trial, in which the judge is not the fact finder. In a bench tr ial, the appropriate vehicle for dismissing a case as a matter of law at the close of plaintiffÂ’s evidence is a Rule 52(c) judgment on partial findings. This section replaces the part of Rule 41(b) pertaining to involuntary dismissals.

Unlike the standard applicable in judgments as a matter of law, when dismissing a case pursuant to Rule 52(c), a cou r t is not required to make any special inferences or review the facts in the light most favorable to the plaintiff. See Sanders v. General Servs. Admin. , 707 F.2d 969, 971 (7th Cir. 1983). A judgment on partial findings may be entered by the court Â“at any time it can appropriately make a dispositive finding of fact on the evidence.Â” F E D . R. C IV . P. 52 advisory committeeÂ’s note. It is evident from the magistrate judgeÂ’s reasons for judgment that her ruling on GCPÂ’s motion was in accordance with Rule 52(c), and will therefore be treated as a judgment on partial findings. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-31267 Summary Calendar LARRY WEBER, Plaintiff-Appellant, versus GAINEYÂ’S CONCRETE PRODUCTS, INC., Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Louisiana (96-CV-4173) September 21, 1998 Before Judges WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

Per Curiam * In this retaliatory discharge case, Plaintiff-Appellant Larry Weber appeals the district courtÂ’s grant of Defendant-Appellee GaineyÂ’s Concrete Products , Inc.Â’s (Â“GCPÂ”) motion for judgment as a matter of law, 2 holding that WeberÂ’s untoward behavior in r esponse to GCPÂ’s al l eged adverse employment action constitutes an independent, legitimate and n ondi scriminatory reason for firing him. Concluding that the courtÂ’s holding is correct, we affirm.

I FACTS AND PROCEEDINGS Larry Weber is an African-American male who w as employed by GCP for approximately ei ght een mo nt hs. During the course of his employment, Weber held several different positions, including road man, laborer, and concrete finisher. He received three pay raises during this time. On July 25, 1994, Weber was fired by Edgar Gainey (Â“EdgarÂ”), plant manager at GCPÂ’s Holden, Louisiana facilit y. At the time of WeberÂ’s discharge, GCP also operated a facility in Springfield, Louisiana. Richard Gainey (Â“RichardÂ”), the late president of GCP and EdgarÂ’s brother, maintained his office at the Springfield location.

Earlier that month, two positions had become available at the Holden plant Â—Â— operator of the cherry picker and operator of the batch plant. Weber contends that he consulted Richard about filling one of these positions, and was told that to be considered for either job he would need to learn how to operate the equipment. Thereafter, claims Weber, he began to familiarize himself with both the cherry picker and the batch plant whenever he had a free moment.

In the week preceding his termination, Weber was temporarily transferred to the Springfield plant to train a fellow employee in the construction of concrete tanks. On his return to the Holden facilit y on the morning of July 25, Weber learned that two white men had been chosen to fill the job vacancies. The sequence of events after this point is in dispute. Weber claims that he immediately went to Edgar and asked why he had been passed over for the positions. Weber avers that because he was unsatisfied with EdgarÂ’s response Â—Â— that Weber had not been considered because he was temporarily away from the plant Â—Â— he w ent t o the office to call Richard but was prevented by Edgar from using the telephone. At this point, states Weber, he confronted Edgar with the accusation that the true reason he was not considered for the jobs was race. Weber then left the Holden facility to voice his complaint to Richard at Springfield.

According to Weber, RichardÂ’s response was that Weber should return to Holden and work things out with Edgar. Weber testified that when he got back to Holden, Edgar was very angry, and that a heated argument ensued. Weber admitted that, during their argument, he and Edgar Â“holleredÂ” at each other and became Â“hysterical.Â” Weber claims t hat Edgar stepped in close, face-to-face, in response to which Weber told Edgar to Â“get his funky breathÂ” out of his face. Although Weber could not remember whether he had cursed at Edgar, he admitted that it was entirely possible that he had used the Â“FÂ” word. Thereafter, Weber contends, Edgar told him that he could quit and that when he refused to quit, Edgar fired him. This altercation took place outside EdgarÂ’s office in a common work area where other employees could and did hear the argument.

In contrast to Weber§ 2000e-3(a): It shall be an unlawful employment practice for an employer to discriminate against any of his employees or appl icant s fo r employment . . . because he has opposed any practice made an unlawful employment practice by this title [42 USCS §§ 2000e-2000e-17], or because he has made a charge, testified, assisted, o r p articipated in any manner in an investigation , proceeding, or hearing under this title [42 USCS §§ 2000e-2000e-17]. (emphasis added).

We have previously held that the McDonnell Douglas three step burden-shifting analysis is applicable to Title VII unlawful retaliation cases. 7 In the first step, a plaintiff must present a prima facie case of retaliation by showing that (1) he engaged in statutorily protected expr ession, (2) an adverse employment action occurred, and (3) a causal connection existed between his expression and the adverse action. 8 Unlawful employment practices ar e defined in 42 U.S.C. § 2000e-2(a) as the Â“fail[ure] or refus[al] to hireÂ” an individual, the discharge of an individual, or the discrimination by an employer Â“again s t any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individualÂ’s race, co lo r, religion, sex, or national origin.Â” Although to satisfy the first element of his prima facie case a plaint iff must prove that he opposed an Â“unlawfulÂ” employment practice, he need not prove that the employer actually engaged in such practice. Rather, the plaint iff is protected from retaliation if he had a reasonable belief that discrimination was occurring. 9 It is well established, however, that not all activity in opposition to unlawful employment practices is protecte d. 10 Fo r example, an employee who engages in conduct that is unreasonably hostile or aggressive or that interferes with an employeeÂ’s job performance or an employerÂ’s right to conduct his business, relinquishes his statutory protecti on. 11 To determine when such a situation exists, Â“a court must balance the setting in which the activity arises and the interests and motivations of both employer and employee.Â” 12 If the employee successfully establishes a prima facie case, then t he burden shifts to the employer to offer a legitimate, nondiscriminatory reason for its employment decision. 13 Then, if the employer is successful, the presumption of retaliation fades and the burden is r eturned to the employee, who must prove that the employerÂ’s articulated reason is a pretext for retaliation. 14 The ultimate question in a retaliation case is whether the employeeÂ’s protected activity was a Â“but forÂ” cause of the adverse employment decision. If the employee fails to carry that burden of persuasion, he cannot prevail. 15 In granting GCPÂ’s motion for judgment as a matter of law, the trial court concluded that Weber was not engaged in protected activity by the time he suffered the adverse employment action.

Consequently, held the court, GCP had a legitimate, nondiscriminatory, nonpretextual basis for firing him. We affirm these conclusions.

The trial court found the following facts based primarily on her credib i lity determinations after hearing the live and frequentl y co nflicting testimony of the protagonists. On the date of his discharge, Weber behaved in a manner that was both insubordinate and disruptive. After discovering that he had no t been chosen to fill either of the job vacancies, Weber approached Edgar with his complaint, not in privacy but in the general work area at the Holden plant. When EdgarÂ’s explanation for the hiring decisions failed to assuage Weber, he accused Edgar of being a racist. This accusation was made in front of co-workers. Without permission, Weber then left the work site to speak with Richard. When Weber returned to Holden, he again confronted Edgar, letting himself be drawn into an angry dispute. Weber admits to Â“holleringÂ” at Edgar and telling him to Â“get his funky breathÂ” out of his face. Weber had an unassailable right to lodge a complaint for what he believed was discriminatory treatment, but not in a manner that was found to be insulting and inappropriate. The magistrate judge concluded that WeberÂ’s choice of forum improperly challeng e d the chain of command in the workplace and adversely affected EdgarÂ’s abilit y to do his job. As such, the court concluded, the manner in which Weber complained fell outside the scope of st atutory protecti on. After reviewing the testimony of Edgar, Weber, and his witnesses, we cannot say that the magistrate judgeÂ’s findings were clearly erroneous or that her legal conclusions constituted reversible error.

In light of WeberÂ’s cont umacious behavior, the trial court correctly held that GCP had a legitimate and nondiscriminatory reason for its adverse employment deci sio n. Regardless of the validity of WeberÂ’s underlying complaint, he did not have a right to assail his supervisor orally or to challenge his authority in public. Available to Weber were a variety of appropriate channels through which he could have advanced his grievances. There is no question that Weber had a right to lodge a complaint, either formally or info rmally, with his employer. He also had a right to lodge a complaint with the EEOC and to file a lawsuit without fear of losing his job in retaliation. When Weber made the decision to act outside of these protected channels by engaging in disruptive and insubordinate behavior, however, he gave GCP an independent reason for firing him. Once this reason was proffered at trial by his employer, the burden shifted to Weber to show pretext. This he failed to do. Edgar testified at tr ial that, in addition to his alleged history of absenteeism and tardiness, Weber was fired for the manner in which he angrily and combatively challenged GCPÂ’s employment decisions in public. Edgar cited insubo rdination, failure to ask permission to leave the plant, and violation of the chain of command as specific reasons for WeberÂ’s discharge. In response, the only evidence produced by Weber of GCPÂ’s alleged retaliatory motive was EdgarÂ’s adm ission that WeberÂ’s public accusation of racism factored into his employment decision. In light of this testimony, the trial court concluded th at t he substance of WeberÂ’s original complaint to Edgar Â—Â— GCPÂ’s alleged racial discrimination Â—Â— was not the Â“but forÂ” cause of his termination. The court found instead that WeberÂ’s dismissal was the result of the bellicose and vit uperative Â—Â— and thus unprotected Â—Â— nature of his protest.

Weber contends that the trial court failed to make a factual finding that GCPÂ’s adverse employment decision was specifically motivated by his conduct. Without this finding, Weber argues, the trial court erred in dismissing his case. We disagree. At t rial, GCP art iculated a variety of no ndiscriminatory reasons for its decision to fire Weber. Except for a history of absenteeism and tardiness, each of these reasons related to WeberÂ’s inappropriate conduct on the date of his discharge.

And Weber was unable to respond with any convincing proof of pretext. Given WeberÂ’s failure to meet this ultimate burden, the magistrate judge did not err in concluding that Weber was not the victim of a retaliatory discharge.

III CONCLUSION Our review of the trial courtÂ’s factual findings and legal conclusions convinces us that GCP was enti t led t o a Rule 52(c) judgment on partial findings, dismissing WeberÂ’s claims. For the foregoing reasons, the judgment of the district court is, in all respects, AFFIRMED.

3 Weber and GCP consented to trial before a magistrate judge in accordance with 28 U.S.C. 636(c)(1). 4 S ee Hochstadt v. Worcester Found. for Experimental Biology , 545 F.2d 222, 229 (1st Cir. 1976). 5 S ee Downey v. Denton County , 119 F.3d 381, 385 (5th Cir. 1997); Reich v. Lancaster , 55 F.3d 1034, 1045 (5th Cir. 1995). 6 See Downey , 119 F.3d at 385; Reich , 55 F.3d at 1045. 7 See Long v. Eastfield College , 88 F.3d 300, 304 (5th Cir. 1996)

8 See Grimes v. Texas DepÂ’t of Mental Health & Mental Retardation , 102 F.3d 137, 140 (5th Cir. 1996). 9 S ee Long , 88 F.3d at 304; Payne v. McLemoreÂ’s Wholesale & Retail Stores , 654 F.2d 1130, 1140 (5th Cir. 1981). 10 See Payne , 654 F.2d at 1142. 1 1 S ee id. ; Jeffries v. Harris County Community Action AssÂ’n , 615 F.2d 1025, 1036 (5th Cir. 1980). 12 Hochstadt , 545 F.2d at 232. 13 See McDaniel v. Temple Indep. Sch. Dist. , 770 F.2d 1340, 1346 (5th Cir. 1985)

14 Id. 15 See Jack v. Texaco Research Ctr. , 743 F.2d 1129, 1131 (5th Cir. 1984)