Martinez v. Bohls Bearing Equipment Co. (361 F. Supp. 2d 608, 2005)

ORDER

RODRIGUEZ, District Judge.

Plaintiffs motion to amend the Court’s February 28, 2005, summary judgment Order granting in part and denying in part summary judgment is GRANTED (docket no. 54). That Order is amended as follows to certify it for interlocutory appeal.

Before the Court is Defendants’ Motion for Summary Judgment (docket no. 33). Plaintiff has filed claims for various causes of action, including violations of the Thirteenth Amendment, 42 U.S.C. § 1981, Title VII, the Fair Labor Standards Act (“FLSA”), and intentional infliction of emotional distress. Defendants have moved for summary judgment arguing that the incorrect defendant was named as a party, that no adverse employment action was taken against Plaintiff, that the FLSA claim is subject to an accord and satisfaction, and that the evidence does not create a genuine issue of material fact as to any claim. The Court GRANTS in part and DENIES in part Defendants’ motion. Summary judgment is granted in favor of Defendants on Plaintiffs Thirteenth Amendment, § 1981, and Title VII discrimination and retaliation claims, as well as Plaintiffs intentional infliction of emotional distress claim under Texas law. Genuine issues of material fact remain as to Plaintiffs Title VII harassment and FLSA retaliation claims.

I. Factual and Procedural Background

Plaintiff is a Hispanic male who was employed by Defendants from April 1996 to July 7, 2003 as a warehouseman and driver. According to testimony by Plaintiff and other employees, Defendants’ president, Louis Bohls, made numerous and ongoing racial slurs directed at his Hispanic workers. These slurs included phrases such as: “Do it like a white man, not like .a Mexican;” “Do your work like a white man would, not like a dumb Mexican;” “You dumb Mexican, do it right like a white man;” and “The only things Mexicans are good for are having babies and getting welfare, and that comes out of my pocket.” Plaintiff asserts that these comments were made on a continuous, near-daily basis. Plaintiff states that he complained of this treatment, but to no avail.

According to the affidavit of Allen Shu-ler, Defendants’ computer analyst and apparent controller, Plaintiff began his employment on April 7,1997 at a rate of $5.50 per hour. Beginning in December of 2001, Plaintiff was scheduled to work every other Saturday for five hours, with an agreed payment of $50 per Saturday worked. Shuler states that after a number of raises, Plaintiffs wage as of August 9, 2002 was $8.13 per hour, plus the $50 for each Saturday worked. In May 2002, Plaintiff informed the company vice-president that he had not been paid for his Saturday work. The company vice-president informed Shu-ler to increase Plaintiffs pay by an additional $45 to cover Saturday work. Shu-ler, thinking that Plaintiffs pay would now be incorrect, informed Mr. Bohls that Plaintiff was then to receive $95 for Saturday work. Mr. Bohls informed Shuler that the additional $45 should not be paid. No records have been put forward to verify Plaintiffs wages and none were put forward to support Shuler’s affidavit. In June 2003 Defendants eliminated all Saturday work for driver/warehouse employees.

At some point prior to June 2003, Plaintiff went to the Department of Labor and complained about not receiving overtime pay for Saturday work. Shortly after this, Mr. Bohls received a phone call from an individual at the Texas Workforce Commission (“TWC”) regarding a complaint filed either by Plaintiff or Plaintiff s son as to the failure to pay overtime.' During this conversation with the TWC, Mr. Bohls was apparently informed that the company was not in compliance with the law. Mr. Bohls asked for information as to how he should structure salaries and overtime payments in order to be in compliance with the law. According to Mr. Bohls, the TWC informed him of the law and also informed him that he could informally settle the overtime claim with Plaintiff by paying him and obtaining a release. After this conversation, Mr. Bohls apparently instituted a change in the payroll system and all employees were informed on June 2, 2003 that they were to receive a pay stub each pay period and that all work would be from 8:00 a.m. to 5:00 p.m., Monday thru Friday, with no work on Saturdays.

On June 2, 2003 Plaintiff was called into a meeting with Mr. Bohls. During this meeting Mr. Bohls offered Plaintiff $1000 to compensate him for Saturday work that Plaintiff maintained he had not been paid for. . Plaintiff signed a notarized memoran-, dum that stated “I Robert D. Martinez on this 2nd day of June 2003, accept $1000.00 in full payment for all overtime accumulated and unpaid during the period from 06/01/01 to 06/01/03. I consider this amount as full settlement for all overtime in question and reported.” Plaintiff states that he signed this memorandum and took $1000, even though he believed he was owed nearly $3500, because he needed money to fix his vehicle and because his wife was sick. Sometime after the June 2, 2003 meeting, Plaintiff received his next paycheck. According to Plaintiff, at some point prior to this he had been told by the company vice-president and by Shuler that his salary was to be $9.00 per hour. In the paycheck following the June 2, 2003 meeting, however, Plaintiff found that his salary was listed as $8.13 per hour.

On June 20, 2003 Plaintiff filed a Wage Claim with the TWC. In this Wage Claim, Plaintiff complained that he had not- been fully, paid overtime benefits and that his salary had been reduced from $9.00 per hour to $8.13 per hour because he had filed, a complaint with the Department of Labor. On July 2, 2003 Plaintiff received notice from the TWC that his Wage Claim had been received by the Labor Law Department of the TWC and that Defendants had been notified of the claim. On July 7, 2003 Plaintiff was called into Mr. Bohls’s office where he met with Mr. Bohls and Irma Booher, a collections and accounts receivable clerk. At this meeting Plaintiff was asked to explain his position as to his salary. Plaintiff told Mr. Bohls that he thought his salary was $9.00 per hour and that he expected to be paid that amount. Plaintiff also told Mr. Bohls that he would accept $1500 to finally settle the overtime claim. Mr. Bohls told Plaintiff that the company did have any “$9 jobs.” At this point Plaintiff apparently asked when he could pick up his final check. Plaintiff asserts that he was fired at this meeting. Defendants assert that Plaintiff quit because his salary demands would not be met. Booher testified that her feeling was that Mr. Bohls “terminated” Plaintiff at this meeting.

On August 25, 2003, a Preliminary Wage Determination Order was entered by the TWC denying Plaintiffs Wage Claim. After Plaintiff appealed the order, the TWC denied the Wage Claim on November 6, 2003. The TWC found that the June 2, 2003 release memorandum and the $1000 payment settled the issue of overtime payments. The TWC did not address Plaintiffs complaint that his salary had been reduced. No appeal was taken of this ruling.

Plaintiff filed a Charge of Discrimination with the EEOC on July 18, 2003. Plaintiff complained that he had been harassed and discriminated against on the basis of his race and national origin and that he had been retaliated against for complaining about discrimination. Plaintiff was issued a right to sue letter on December 5, 2003 and filed his federal Complaint on February 6, 2004. In Plaintiffs Amended Complaint, Plaintiff alleges violations of the Thirteenth Amendment, § 1981, Title YII, the FLSA, and intentional infliction of emotional distress under Texas law. Defendant has now moved for summary judgment.

II. Summary Judgment Standard

Summary judgment is proper “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 material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the burden of showing that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir.1995). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir.1991). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In making this determination, the court will review the evidence in the record and disregard the evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the record, viewed in this light, could not lead a rational trier of fact to find for the party opposing the motion, summary judgment is proper.

III. Analysis

Plaintiff puts forward a number of causes of action. These include causes of action based upon the Thirteenth Amendment, § 1981, Title VII, the FLSA, and the Texas tort of intentional infliction of emotional distress. Certain of these causes of action can be summarily eliminated. Others, however, are supported by the evidence and may proceed to trial.

A. Thirteenth Amendment Claim

Plaintiffs Amended Complaint states that Defendant “intentionally deprived him of the rights and privileges guaranteed to [Plaintiff] by the Thirteenth Amendment to the United States Constitution by terminating him based upon his race and national origin, Mexican-American, and retaliating against him because he engaged in protected conduct and opposed conduct made unlawful by federal law.”. This claim is nothing more than employment discrimination and retaliation claims' disguised under the rubric of the Thirteenth Amendment. It has nothing to do with the evils the Thirteenth Amendment was meant to remedy. “[T]he phrase ‘involuntary servitude’ [under the Thirteenth Amendment] was intended to ‘cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.’ ” U.S. v. Kozminski, 487 U.S. 931, 942, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988) (quoting Butler v. Perry, 240 U.S. 328, 332, 36 S.Ct. 258, 60 L.Ed. 672 (1916)). The Thirteenth Amendment does not create a cause of action for employment discrimination. See Mitchell v. Carrier Corp., 954 F.Supp. 1568, 1575 (M.D.Ga.1995). Accordingly, summary judgment is granted in favor of Defendants on Plaintiffs Thirteenth Amendment claim.

B. Discrimination and Harassment Claims

Title VII makes it “an unlawful employment practice for an employer ... to discharge .. or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race ... [or] national origin.... ” 42 U.S.C. § 2000e-2(a)(l). The standard of proof for Title VII discrimination claims also applies to § 1981 claims. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir.1999). Because the same facts underlie Plaintiffs causes of action for discrimination and harassment under both § 1981 and Title VII, the analyses can be combined. See Roberson v. Alltel Info. Services, 373 F.3d 647, 651 (5th Cir.2004).

1. Discrimination Claims

In order to establish a valid claim for discrimination, a plaintiff must meet a tripartite analysis. McDonnell Douglas v. Green, 411 U.S. 792, 802—04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). McDonnell’s tri-partite analysis applies to employment discrimination claims under § 1981 as well. Roberson, 373 F.3d at 651. Plaintiff must first establish a prima facie case of discrimination. If this is established, the burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for their actions. If Defendants satisfy this requirement, the burden shifts again to Plaintiff to prove that the reasons offered by Defendants were not true, but were a pretext to discrimination. Id. Plaintiff can establish pretext either directly, by showing a discriminatory reason motivated management, or ' indirectly, by showing that the reasons given by management are simply not believable. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The burden of establishing a pri-ma facie case of discrimination is not overly difficult. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089. To establish the prima facie case, a plaintiff must show (1) he was a member of a protected class; (2) he was qualified for his position; (3) an adverse employment action was suffered; and (4) other similarly situated employees were treated more favorably. Bryan v. McKinsey & Co., 375 F.3d 358 (5th Cir.2004). Plaintiff has put forward no evidence of disparate treatment to meet a prima facie case of discrimination. There is no evidence that other similarly situated employees were treated more favorably than Plaintiff. Specifically, Plaintiff has put forward no evidence that any other employee was promised a certain salary prior to the change in payroll structure and that the promise was kept. Consequently, there is no evidence of discrimination under either Title VII or § 1981.

2. Harassment Claim

Plaintiff argues in his Response to Defendants’ 'Motion for Summary Judgment that his claim for racial harassment should go forward. While not well pleaded, Plaintiffs Amended Complaint is sufficient under the “notice pleading” standard to present a claim for racial harassment. Specifically, Plaintiffs Amended Complaint states that “Defendants’ discriminatory animus created and perpetuated a racially hostile environment by permitting and tolerating persistent and widespread slurs and threats.” A valid cause of action exists for “hostile environment” racial harassment. See Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996).

To prevail under a claim for racial harassment based on a- hostile work environment, a plaintiff must show that the conduct was so “severe or pervasive” as to create an environment that a reasonable person would find hostile or abusive. Id. To establish a prima facie case, & plaintiff must show (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the - defendants knew or should have known of the harassment in question and failed to take prompt remedial action. Celestine v. Petroleos de Venezuella S.A., 266 F.3d 343, 353 (5th Cir.2001). “[T]he phrase ‘terms, conditions or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. ... One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.... ” Rogers v. EEOC, 454 F.2d 234 238 (5th Cir.1971); see also Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).