IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-31191
Summary Calendar
____________________
RODRIGO M SOLORZANO, SR
Plaintiff - Appellant
v.
SHELL CHEMICAL COMPANY
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 99-CV-2831-L
_________________________________________________________________
May 18, 2001
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Rodrigo M. Solorzano, Sr., appearing pro
se, appeals from the magistrate judge’s grant of summary judgment
in favor of Defendant-Appellee Shell Chemical Company on
Solorzano’s race and age discrimination claims. For the
following reasons, we AFFIRM.
*
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that this opinion should not be published and is not precedent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.
I. FACTUAL AND PROCEDURAL HISTORY
Rodrigo M. Solorzano, Sr.,1 a fifty-four year old Hispanic
male born in Nicaragua, began working as a laboratory technician
at Shell Chemical Corporation’s (“Shell”) Taft Plant on July 10,
1989. He was terminated by Shell on December 14, 1998.
According to Shell, Solorzano was selected for random drug
testing in accordance with Shell’s Substance Abuse Policy based
on his holding a safety and environmentally sensitive job.
Although Solorzano submitted to the test and signed a consent
form acknowledging that he had submitted a fresh and
unadulterated urine sample, Shell asserted that two independent
labs and an independent expert determined that the sample was
inconsistent with human urine. Based on this evidence, Shell
stated that it terminated Solorzano for violation of Shell’s
Substance Abuse Policy and falsification of company records.
On September 15, 1999, Solorzano filed suit in federal court
alleging race discrimination in violation of 42 U.S.C. § 1981
(1994) (“§ 1981”) and Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (1994), and age
discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (1999).
Specifically, Solorzano alleged that he was subjected to a
1
Solorzano appears pro se. We interpret briefs of pro se
litigants liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam).
2
hostile work environment2 and that he was denied promotions,
improperly disciplined,3 and ultimately terminated because of his
race and age.
On January 4, 2000, the magistrate judge4 issued an order
(the “January 4 Order”) scheduling a preliminary conference on
January 13, 2000. Informed at the preliminary conference that
the parties had not met to discuss discovery issues and had
failed to file a discovery plan as required by Federal Rule of
Civil Procedure 26(f) (“Rule 26(f)”), the magistrate judge
ordered the parties to conduct a telephone conference on January
18, 2000. The parties conferred on January 18, but Shell
declined to submit a Rule 26(f) discovery plan because Rule 26(f)
required the plan to be submitted prior to the scheduling
conference.
On February 12, 2000, Solorzano submitted his first set of
2
Solorzano alleged a hostile work environment based on
being subjected to frequent and repeated “ethnic/racial/national
origin gibes and slurs” by coworkers. He contended that these
slurs were often made in the presence of supervisory and
management personnel and that he had made supervisory and
management personnel aware of the comments on at least three
occasions.
3
Solorzano asserted he was denied promotion to the
positions of Documentation Specialist, Trainer, Team Coach, and
Process Specialist.
4
This case was automatically referred to a magistrate
judge on September 9, 1999 and the parties consented to have a
magistrate judge conduct all proceedings in the case in
accordance with the provisions of 28 U.S.C. § 636(c) on January
25, 2000.
3
written interrogatories and discovery requests, in response to
which Shell timely provided some 3159 pages of documents.
However, Shell objected to fourteen of the discovery requests and
failed to respond to Solorzano’s interrogatories. The parties
conferred on March 16, regarding the objections to the discovery
documents, but were unable to come to any agreement. On April
17, Solorzano filed a Motion to Compel Production of Documents
and Answers to Interrogatories (the “Motion to Compel”). On May
3, the Motion to Compel was granted in part and denied in part
(the “May 3 Order”). The magistrate judge denied Solorzano’s
Motion to Compel as it related to production of documents;
however, the magistrate judge stated that Shell was required to
supply all responsive materials “concerning its policies and
programs related to plaintiff’s job position at the Taft plant
for the period 1996-98.” Furthermore, the magistrate judge
granted Solorzano’s Motion to Compel insofar as it concerned the
interrogatories, stating that “[r]esponses must be provided . . .
within ten (10) days of entry of this order.” Finally, the
magistrate judge ordered the parties to meet within ten days to
clarify the document production and to resolve discovery issues,
which meeting occurred on May 12, 2000.5
5
Shell notes that on April 25, 2000, prior to the
issuance of the May 3 Order, it responded to Solorzano’s first
two interrogatories and objected to the third. The magistrate
judge appears not to have been aware of this action when he
issued his May 3 Order.
4
On June 13, 2000, Solorzano filed three additional motions,
including a Motion for Court-Supervised Discovery Conference (the
“Motion for Court-Supervised Discovery”). While the magistrate
judge denied the Motion for Court-Supervised Discovery insofar as
it sought to require a Rule 26(f) plan, the magistrate judge
agreed to hold a court-supervised discovery conference.
According to the order issued by the magistrate judge following
the conference, several of Solorzano’s supplemental requests had
been mooted or satisfied. However, there still remained several
requests to which the magistrate judge ordered Shell to respond,
either by stating no documents existed for the request, by
providing the documents, by objecting to the request, or by
seeking a protective order. Shell filed a Motion for a
Protective Order on July 20, 2000, and provided the documents to
the magistrate judge for in camera review.
On July 28, 2000, while its Motion for a Protective Order
was pending, Shell filed a Motion for Summary Judgment. The
magistrate judge granted the motion and dismissed Solorzano’s
claims with prejudice. Analyzing Solorzano’s failure-to-promote
and termination claims6 under the burden-shifting framework set
6
The magistrate judge also dismissed Solorzano’s state
law defamation claim, finding the claim, which was subject to a
one-year limitations period, prescribed. Additionally, the
magistrate judge found Solorzano’s ADEA claim and several of his
failure-to-promote claims barred by his failure to file an EEOC
charge within 300 days of the challenged actions, thereby
exhausting his administrative remedies. Solorzano has not
appealed the magistrate judge’s grant of summary judgment on
5
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
magistrate judge found that, even assuming that Solorzano could
establish a prima facie showing of national origin
discrimination,7 Shell had articulated legitimate,
nondiscriminatory reasons for its actions. The magistrate judge
found that, apart from his subjective beliefs and unrelated
ethnically based comments by his coworkers, Solorzano presented
no evidence from which a reasonable factfinder could infer that
Shell’s asserted reasons were pretextual, and thus summary
judgment was appropriate. Similarly, the magistrate judge
concluded that summary judgment was appropriate on Solorzano’s
claim of hostile work environment because Solorzano failed to
demonstrate any genuine issue of material fact that the slurs
these issues, and therefore, they are waived. See Evergreen
Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 918 (5th Cir.
2000). We do note, however, that these time-barred acts may be
used as evidence of discriminatory intent in later actions. See
Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 n.12 (5th Cir.
1995) (citing Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th
Cir. 1992) (listing cases)).
7
Solorzano asserts that his complaint alleges race
discrimination, not national origin discrimination. We note
that, in his EEOC filing he claimed national origin
discrimination. Because “[a] Title VII cause of action may be
based, not only upon the specific complaints made by the
employee’s initial EEOC charge, but also upon any kind of
discrimination like or related to the charge’s allegations,
limited only by the scope of the EEOC investigation that could
reasonably be expected to grow out of the initial charges of
discrimination,” we will consider both his national origin and
racial discrimination claims. See Dollis v. Rubin, 77 F.3d 777,
781 (5th Cir. 1995) (quoting Fine v. GAF Chem. Corp., 995 F.2d
576, 578 (5th Cir. 1993)).
6
were motivated by ethnic animus or that his co-workers’ ethnic
slurs were sufficiently frequent or severe. Therefore, the
magistrate judge dismissed Solorzano’s claims with prejudice.
On August 14, 2000, the Motion for a Protective Order was
granted in part and denied in part. Both Shell and Solorzano
filed Motions for Reconsideration, which were denied.
Solorzano timely appeals.
II. STANDARD OF REVIEW
“We review de novo questions of law such as a district
court’s interpretation of the Federal Rules of Civil Procedure.”
Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 827
(5th Cir. 1996). We review the trial court’s evidentiary rulings
under an abuse of discretion standard. See Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999). The district
court’s disposition of contested discovery and procedural matters
is also reviewed under an abuse of discretion standard. See
Atkinson v. Denton Publ’g Co., 84 F.3d 144, 147 (5th Cir. 1996).
We review de novo a district court’s grant of summary
judgment. See Evans v. City of Bishop, 238 F.3d 586, 588 (5th
Cir. 2000). Summary judgment is appropriate when the record
shows “‘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.’” Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th
7
Cir. 2000) (quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d
155, 161 (5th Cir. 1996)). “‘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.’” Id. (quoting Taylor, 93 F.3d at 161).
“[W]e must view all facts in the light most favorable to the
nonmovant.” Cardinal Towing & Auto Repair, Inc. v. City of
Bedford, Tex., 180 F.3d 686, 690 (5th Cir. 1999).
III. RULE 26(F) CONFERENCE
As an initial matter, Solorzano raises a challenge to the
magistrate judge’s governing of the pretrial discovery process,
namely his failure to order the parties to hold a discovery
conference and to file a discovery plan as required by Rule
26(f). Rule 26(f)8 requires that the parties meet at least
8
Federal Rule of Civil Procedure 26(f) provides:
Except in actions exempted by local rule or when
otherwise ordered, the parties shall, as soon as
practicable and in any event at least 14 days before a
scheduling conference is held or a scheduling order is
due under Rule 16(b), meet to discuss the nature and
basis of their claims and defenses and the
possibilities for a prompt settlement or resolution of
the case, to make or arrange for the disclosures
required by subdivision (a)(1), and to develop a
proposed discovery plan. The plan shall indicate the
parties’ views and proposals concerning:
(1) what changes should be made in the timing, form, or
requirement for disclosures under subdivision (a) or
8
fourteen days prior to the scheduling conference to discuss
several topics, including discovery, and to develop a discovery
plan, which must be submitted to the court. Solorzano argues
that the magistrate judge’s January 4 Order scheduling the
preliminary conference for January 13 effectively made it
impossible for the parties to arrange a discovery conference as
required by Rule 26(f). Furthermore, when Solorzano requested
such a discovery conference in his Motion for Court-Supervised
Discovery, the magistrate judge denied the motion insofar as it
sought to require the Rule 26(f) plan, stating that “requiring a
plan of the type envisioned by Rule 26(f) would be a vain and
local rule, including a statement as to when
disclosures under subdivision (a)(1) were made or will
be made;
(2) the subjects on which discovery may be needed, when
discovery should be completed, and whether discovery
should be conducted in phases or be limited to or
focused upon particular issues;
(3) what changes should be made in the limitations on
discovery imposed under these rules or by local rule,
and what other limitations should be imposed; and
(4) any other orders that should be entered by the
court under subdivision (c) or under Rule 16(b) and
(c).
The attorneys of record and all unrepresented parties
that have appeared in the case are jointly responsible
for arranging and being present or represented at the
meeting, for attempting in good faith to agree on the
proposed discovery plan, and for submitting to the
court within 10 days after the meeting a written report
outlining the plan.
FED. R. CIV. P. 26(f).
9
useless act.” Solorzano asserts that these acts frustrated his
procedural right to have a Rule 26(f) discovery conference and
plan, which would have prevented many of the later discovery
disputes.
Shell asserts that Rule 26(f) provides latitude to
individual courts to modify the rule’s requirements.
Furthermore, as the magistrate judge was actively involved in the
discovery process and responsive to Solorzano’s motions and
concerns, Shell argues that Solorzano cannot point to any
prejudice he suffered from the lack of the Rule 26(f) discovery
conference and plan. For these reasons, Shell contends that the
magistrate judge’s actions do not constitute an abuse of
discretion.
We do not find either the magistrate judge’s order
scheduling the preliminary conference or his order denying in
part Solorzano’s Motion for Court-Supervised Discovery to be an
abuse of discretion. See Atkinson v. Denton Publ’g Co., 84 F.3d
144, 147 (5th Cir. 1996). Although Rule 26(f) requires the
parties to meet at least fourteen days prior to the scheduling
conference to formulate a discovery plan, nothing in Rule 26(f)
requires the parties to wait until the court has set a date for
the scheduling conference before arranging such a meeting.
Additionally, Rule 26(f), by its terms, gives the district court
discretion to exempt particular cases from complying with the
requirements of Rule 26(f), providing that the parties shall have
10
the discovery conference “[e]xcept . . . when otherwise ordered.”
FED. R. CIV. P. 26(f). The magistrate judge exercised his
discretion, after having discussed the issue with the parties at
the hearing, when he determined that the filing of a discovery
plan would not be helpful.
Further, we need not decide if the magistrate judge’s orders
were in error, because even assuming they were, such error is
subject to harmless error review. See Union City Barge Line,
Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987).9
We find that because of the active role the magistrate judge
played in overseeing discovery in this matter, any error that may
have occurred from the magistrate judge’s failure to order the
parties to hold a Rule 26(f) discovery conference was harmless.
Informed of the parties’ failure to hold a Rule 26(f) conference
at the preliminary conference held, the magistrate judge ordered
the parties to hold a telephone discovery conference. The
parties were unable to reach agreement on the discovery issues
during that conference, ultimately leading to Solorzano’s filing
his Motion to Compel. In his May 3 Order, the magistrate judge
9
Union City was decided under a prior version of Rule
26(f), which provided: “The court shall . . . hold a conference
on the subject of discovery upon motion by the attorney.” Union
City, 823 F.2d at 135 (alteration in original). This court found
the failure of the district court to hold the mandatory
conference to be error, but only harmless error. See id. at 136.
Although the provisions relating to a conference with the court
are removed from subdivision (f), “[t]his change does not signal
any lessening of the importance of judicial supervision.” FED.
R. CIV. P. 26(f) advisory committee notes 1993 amends.
11
ordered the parties to meet in person to discuss document
production and discovery. The parties obviously failed to arrive
at a mutually agreeable outcome, as evidenced by Solorzano’s
filing of his three additional motions. The magistrate judge
granted Solorzano’s request for a court-supervised discovery
conference, issuing several orders to Shell regarding discovery.
However, after hearing from the parties, the magistrate judge
also determined that requiring the parties to file a Rule 26(f)
plan would be useless.
Given the magistrate judge’s active role in the discovery
process and the inability of the parties to resolve their
discovery issues, we find the magistrate judge’s failure to order
the parties to file a Rule 26(f) plan, if error at all, was
harmless.
IV. OBJECTION TO THE INTERROGATORY
As another threshold issue, Solorzano challenges the
magistrate judge’s management of the discovery process in his
decision to sustain Shell’s objection to one of Solorzano’s
interrogatories. Solorzano contends that the magistrate judge
erred in sustaining Shell’s objection to Interrogatory No. 3
because Shell’s objection was in contravention of the magistrate
judge’s May 3 Order as well as untimely. Shell replies that the
magistrate judge has the discretion to permit untimely objections
12
for good cause and that it complied with the magistrate judge’s
May 3 Order.
We do not find the magistrate judge’s decision to sustain
Shell’s objection to Interrogatory No. 3 to be an abuse of
discretion. Solorzano submitted his first set of interrogatories
and document requests to Shell on February 12, 2000. On March
10, 2000, Shell responded to Solorzano’s request for production
of documents either by submitting material or by objecting to the
request. Although Shell failed to respond to Solorzano’s
interrogatories, in its reply to Solorzano’s Motion to Compel,
Shell informed the magistrate judge that its failure to respond
to the interrogatories was an oversight. Shell informed the
magistrate judge that it would provide a response as soon as
possible, noting, however, that it intended to object to
Interrogatory No. 3. Further, on April 25, 2000, eight days
after Solorzano filed his Motion to Compel, Shell in fact
answered Interrogatories No. 1 and 2, and objected to
Interrogatory No. 3.
In his May 3 Order, the magistrate judge stated: “The motion
is granted as to the interrogatories, which were not answered.
Responses must be provided to these interrogatories within ten
(10) days of entry of this order.” As Solorzano admits, a
response to an interrogatory can mean either an objection or an
answer. The magistrate judge could have ordered Shell to answer
the interrogatories but, with knowledge that Shell intended to
13
object to Interrogatory No. 3, the magistrate judge instructed
Shell to respond to the interrogatories. Given the wording of
the magistrate judge’s order, we do not find that Shell’s
objection to Interrogatory No. 3 constituted disregard of that
order.
Additionally, we cannot agree that the magistrate judge’s
decision to sustain Shell’s untimely objection to Interrogatory
No. 3 was an abuse of discretion. Although Federal Rule of Civil
Procedure 33(b) states that objections not served within 30 days
after the service of the interrogatories shall be deemed waived,
the Rule gives the district court discretion to excuse the
untimeliness for good cause. See FED. R. CIV. P. 33(b)(3), (4).
Shell had responded to Solorzano’s request for production of
documents within the proper thirty-day window. In its reply to
Solorzano’s Motion to Compel, Shell informed the magistrate judge
that its failure to respond to the interrogatories was an
oversight, and Shell promptly remedied that oversight. Given
these facts, we cannot find that the magistrate judge’s decision
to sustain Shell’s untimely objection was an abuse of discretion.
V. SUMMARY JUDGMENT
Solorzano contends that the magistrate judge erred in
granting summary judgment in favor of Shell on his Title VII
14
claims of discriminatory failure to promote, unequal disciplinary
treatment (including termination), and hostile work environment.
As we explain below, we find that the magistrate judge properly
granted summary judgment in favor of Shell.
A. Analytical Framework
Claims of racial discrimination supported by circumstantial
evidence are analyzed under the framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). “First, the
plaintiff must establish a prima facie case of discrimination.”
See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097,
2106 (2000). Once the plaintiff satisfies this prima facie
burden, the burden shifts to the defendant to produce a
“legitimate, nondiscriminatory reason for its decision.” Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
“This burden on the employer is only one of production, not
persuasion, involving no credibility assessments.” Id.
“If the defendant can articulate a reason that, if believed,
would support a finding that the action was nondiscriminatory,
‘the mandatory inference of discrimination created by the
plaintiff’s prima facie case drops out of the picture and the
factfinder must decide the ultimate question: whether [the]
plaintiff has proved [intentional discrimination].’” Evans v.
City of Houston, No. 99-20778, 2001 WL 277839, at *3 (5th Cir.
Mar. 21, 2001) (alterations in original) (some internal
15
quotations omitted) (quoting Russell, 235 F.3d at 222). “In the
context of a claim of discrimination, a plaintiff must adduce
evidence that the justification was a pretext for racial and age
discrimination.” Id. at *4. “[A] plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.” Reeves,
120 S. Ct. at 2109. A showing of pretext by the plaintiff will
not always be sufficient to infer discrimination. For example,
“if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the
plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
occurred,” the employer would still be entitled to summary
judgment. See id.
With this framework in mind, we proceed to analyze
Solorzano’s Title VII claims.
B. Discriminatory Failure to Promote
Solorzano claims that Shell discriminated against him by
failing to promote him to the position of Taft Process Specialist
in 199810 because of his race or national origin. To establish a
10
Solorzano also asserts that Shell discriminated against
him by failing to promote him to the positions of Documentation
16
prima facie case of discriminatory failure to promote, “a
plaintiff must demonstrate that (1) [he] is a member of a
protected class; (2) [he] sought and was qualified for an
available employment position; (3) [he] was rejected for that
position; and (4) the employer continued to seek applicants with
the plaintiff’s qualifications.” Scales v. Slater, 181 F.3d 703,
709 (5th Cir. 1999). For purposes of this opinion, we will
assume without deciding, as did the magistrate judge, that
Solorzano established a prima facie case of employment
discrimination.11
Shell articulated a nondiscriminatory reason for its failure
to promote Solorzano, i.e., that he was not the top scorer at the
end of the selection process. Solorzano achieved the highest
score of any candidate in the written examination, but was the
least successful candidate during the interview portion of the
process. His combined score placed him third out of the four
candidates who had advanced to the interview stage of the
process. The interviews were conducted by a panel of five
Specialist, Trainer, and Team Coach. As discussed supra in note
6, although these claims are barred because Solorzano failed to
file an EEOC charge within 300 days of the incidents, the acts
may be used as evidence of discriminatory intent in later
actions.
11
Solorzano is a member of a protected class and he
applied for the Process Specialist position. Further, as one of
the four finalists for the position, he was likely qualified for
the position, but he was rejected in favor of an individual
outside the protected class. Therefore, it appears that
Solorzano establishes his prima facie case.
17
individuals consisting of three white males and two black males.
Notes from a discussion Solorzano had with his supervisor after
finding out he had not received the promotion (the “Post-
Interview Notes”) indicate that Solorzano had been given low
scores by the panelists, not because of the answers he had given
during the interview, but because, during their time working with
him over the years, the panelists had a negative impression of
him and believed he would not be successful in a leadership role.
We find that Shell articulated an adequate nondiscriminatory
reason for its failure to promote Solorzano.
Therefore, the mandatory inference of discrimination created
by Solorzano’s prima facie case disappears, and the question
becomes whether Solorzano has provided sufficient summary
judgment evidence to prove that Shell discriminated against him
based on race or national origin. See Evans, 2001 WL 277839, at
*4. We find that Solorzano has failed to present sufficient
evidence to create a jury issue that Shell’s asserted reason for
failing to promote him to the Process Specialist position is
pretextual.
To establish pretext, Solorzano contends that Shell promoted
individuals less qualified than he and that the criteria used in
the selection process was subjective and subject to bias. The
only evidence submitted by Solorzano to establish that the
individuals promoted by Shell were less qualified was Solorzano’s
own affidavit and the Post-Interview Notes. This evidence is
18
insufficient to create a jury question regarding whether Shell’s
proffered justification is pretextual.
To survive summary judgment, Solorzano must offer enough
evidence to raise a question of material fact regarding whether
Shell’s articulated reason for failing to promote him (i.e., that
he was not the highest scorer in the selection process) was a
pretext for race or national origin discrimination. For example,
in Blow v. City of San Antonio, Texas, 236 F.3d 293 (5th Cir.
2001), this court found that the plaintiff, an African-American
woman, presented sufficient evidence to survive summary judgment.
See id. at 298. To establish pretext, the plaintiff submitted
evidence that the defendant deliberately failed to publicize the
job opening, concealed the job opening from the plaintiff, and
after having filled the opening, suggested to the plaintiff that
it was a good time to submit her application. See id. at 297-98.
That evidence was sufficient to create a material issue of
disputed fact as to whether the defendant’s asserted reason was
false. See id. at 298.
By contrast, Solorzano has presented no evidence beyond his
subjective belief that he was more qualified for the position to
demonstrate that the legitimate reason for Shell’s failure to
promote him to the position of Process Specialist was a pretext
for race or national origin discrimination. An individual’s
subjective belief that he is more qualified for the position is
insufficient to establish a material question of fact. See
19
Nicols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.
1996). In fact, the evidence submitted by Solorzano confirms
that he was unsuccessful in the interview process because of the
panel’s perception of him as a troublemaker with a bad reputation
in the company. The Post-Interview Notes and his affidavit
confirm that his low scores during the interview were based on
the panel’s negative perception of his interaction with his
coworkers and his perceived lack of leadership ability. The only
evidence that could be construed as evidence that Shell’s
articulated reason was a pretext for race or national origin
discrimination were the ethnic slurs made by coworkers.12
Although our stray remarks jurisprudence must be viewed with
caution in light of Reeves, see Evans v. City of Bishop, 238 F.3d
586, 591 (5th Cir. 2000); Russell, 235 F.3d at 229, because the
remarks were made by coworkers who had no influence on the
promotion decision and were unrelated to the employment decision,
we do not find that they create an issue of fact regarding
whether Shell’s asserted reason was pretextual. Cf. infra Part
V.D.
As Solorzano has failed to submit sufficient evidence to
create a material question of fact as to whether Shell’s asserted
12
Although we may consider Shell’s previous failures to
promote Solorzano, see supra note 6, Solorzano has again failed
to present any evidence, other than his subjective belief
regarding his superior qualifications, that Shell’s asserted
reasons for failing to promote him on these prior occasions were
a pretext for racial or national origin discrimination.
20
reason for its failure to promote him to the position of Process
Specialist was a pretext for race discrimination, we agree with
the magistrate judge that summary judgment was properly granted
to Shell in this regard.
C. Unequal Disciplinary Treatment
Solorzano alleges that his termination was discriminatory
under Title VII in that it constituted an unfair and unequal
application of discipline. Shell responds that Solorzano was
terminated consistent with its internal policy regarding drug
testing. Specifically, Shell followed its policy in terminating
Solorzano when two independent labs and an independent expert
concluded that the urine sample Solorzano had submitted pursuant
to a random drug test was inconsistent with human urine,
constituting a failure to cooperate with a search and
falsification of company records.
“In work-rule violation cases, a Title VII plaintiff may
establish a prima facie case by showing ‘either that he did not
violate the rule or that, if he did, white employees who engaged
in similar acts were not punished similarly’.” Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting
Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.
1980)); see also Simmons v. Rothe Devel., Inc., 952 F. Supp. 486,
490 (S.D. Tex. 1997); cf. Lindsey v. Prive Corp., 987 F.2d 324,
328 (5th Cir. 1993) (finding summary judgment inappropriate for
21
ADEA claim when younger employees were not similarly disciplined
and company policy dictated written warnings before discharge).
Furthermore, to demonstrate that white employees were not
similarly disciplined, the plaintiff “must show that white
employees were treated differently under circumstances ‘nearly
identical’ to his.” Mayberry, 55 F.3d at 1090.
We find that the magistrate judge properly granted summary
judgment in favor of Shell. Solorzano argues that Shell’s
violation of its own policies and its prior discriminatory
treatment of him were sufficient to create a jury question as to
whether Shell’s asserted reason for his termination was
pretextual. Evidence of violations of internal policy may be
considered in determining whether summary judgment is
appropriate. See Lindsey, 987 F.2d at 328. However, Solorzano
has failed to show that Shell, in fact, violated its internal
policy.
While the policy states that employees who fail the drug
test may be given treatment rather than be terminated, it does
not state that the same consideration will be given to employees
who fail to submit an actual sample of their own urine as
required by the policy. In fact, it states that failure to
cooperate with the policy, including failure to cooperate with a
search, can result in termination.
Solorzano’s additional evidence of prior discipline
situations and violations of Shell’s internal policy fail for
22
similar reasons. He has submitted no evidence that similarly
situated white employees were treated differently.13 Further,
Solorzano has submitted no evidence that Shell’s asserted reasons
for his termination were a pretext for race or national origin
discrimination.
The magistrate judge did not err in granting summary
judgment in favor of Shell on Solorzano’s claim of discriminatory
discipline.
13
Solorzano argues that he sought records of two similarly
situated white employees to which access was denied when the
magistrate judge granted Shell’s Motion for a Protective Order.
However, the magistrate judge found the employees not to be
similarly situated. The first employee had tested positive for
drugs and was given an opportunity to undergo rehabilitation.
The second employee had been given a one-day “Decision Making
Leave” for falsifying a log entry. Both events had occurred more
than five years previously. We do not find the magistrate
judge’s evidentiary ruling to be an abuse of discretion.
Similarly, Solorzano alleges that the magistrate judge
improperly limited his scope of discovery to the Shell Taft
Plant, preventing him from obtaining reliable statistical
evidence of discrimination. Although Solorzano correctly cites
Duke v. University of Texas, 729 F.2d 994, 997 (5th Cir. 1984),
as holding that the district court’s failure to allow the
plaintiff access to promotion and pay records for the entire
university was an abuse of discretion, we do not find that case
to be controlling. First, in Duke, this court noted that it was
“significant that the record reflects that the discovery request
was based on more than a fanciful hope of counsel.” Id. at 996.
In contrast, Solorzano has presented no evidence that the alleged
discrimination was company wide. Second, allowing the plaintiff
access to the promotion and pay records for the university is a
far cry from allowing Solorzano access to all of the employment
databases of Shell, “its parents, predecessors, subsidiaries, and
affiliates, each of its present and former officers, employees,
agents, representatives, and attorneys, and each person acting or
purporting to act on its behalf.” As Solorzano’s request was
overbroad in scope, the magistrate judge properly limited the
contested discovery to the relevant period of time at the Shell
Taft Plant.
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D. Hostile Work Environment
To survive summary judgment on a claim of hostile work
environment, Solorzano must create a fact issue on each of the
following elements: “(1) racially discriminatory intimidation,
ridicule, and insults that are; (2) sufficiently severe or
pervasive that they; (3) alter the conditions of employment; and
(4) create an abusive working environment.” Walker v. Thompson,
214 F.3d 615, 625 (5th Cir. 2000).
Whether an environment is “hostile” or “abusive” is
determined by looking at all the circumstances,
including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee’s work
performance. To be actionable, the challenged conduct
must be both objectively offensive, meaning that a
reasonable person would find it hostile and abusive,
and subjectively offensive, meaning that the victim
perceived it to be so.
Shepard v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th
Cir. 1999) (citations omitted) (emphasis added).
Solorzano contends that he was subject to constant and
pervasive derogatory name-calling during the nine years he worked
at Shell that cumulatively impacted his situation at work.
However, in his affidavit, Solorzano states: “I felt that the
people making the comments or calling me names were not motivated
by ethnic animus, but were at most guilty of crass humor and
behavior.” Given that Solorzano, himself, did not believe that
the comments were racially motivated, we find that Solorzano
fails to create a fact issue as to the elements of a hostile work
24
environment claim. Solorzano’s “perception of his environment is
a significant factor; whether discrimination exists is, by its
very nature, often a subjective inquiry.” Vaughn v. Pool
Offshore Co., 683 F.2d 922, 925 (5th Cir. 1982). The magistrate
judge did not err in granting summary judgment in favor of Shell
on Solorzano’s hostile work environment claim.
VI. Section 1981 Claim
Finally, Solorzano claims that the magistrate judge’s
failure to address his § 1981 claims constitutes reversible
error. The magistrate judge dismissed all of Solorzano’s claims
with prejudice, although he did not expressly address Solorzano’s
§ 1981 claim. We note, however, that “[c]laims of intentional
discrimination brought under Title VII and Section 1981 require
the same proof to establish liability.” Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 422 n.1 (5th Cir. 2000). As discussed
supra, Solorzano had presented insufficient evidence on his Title
VII claims to create a question of material fact for the jury.
We find, therefore, that despite the magistrate judge’s failure
to explicitly address Solorzano’s § 1981 claim, the omission does
not warrant a remand or reversal of the grant of summary
judgment. As we find that summary judgment was appropriately
granted in favor of Shell on the Title VII claims, we also find
summary judgment appropriate on the § 1981 claims.
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VII. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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