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Berry v. City of Bossier City9/8/2005
any firefighter was based on his race?
A: Do I now?
Q: Yes.
A: I don't have anything with me now.
Affidavit
In a September 2005 affidavit, Lacoure stated that after reviewing information provided by the defendants, he now believed that he had facts showing that he was unfairly certified based on his race. He said that he was never told that the civil service exam he had to take to be hired would also be counted toward his certification ranking. He stated that, had he been aware of this, he would have taken the test more than once to try to get a higher score to increase his chances of a higher certification ranking. His statements pertaining to the agility test are virtually identical to those made by McGee.
RETALIATION
In order to establish a prima facie claim of Title VII retaliation, an employee must show: (1) that the employee engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Hernandez v. Crawford Building Material Company, 321 F. 3d 528 (5th Cir. 2003), cert. denied, 540 U.S. 817, 124 S.Ct. 82, 157 L.Ed. 2d 34 (2003); Ackel v. National Communications, Inc., 339 F. 3d 376 (5th Cir. 2003); Roberson v. Alltel Information Services, 373 F. 3d 647 (5th Cir. 2004). As to the requirement of an adverse employment action, in the Fifth Circuit, only an "ultimate employment decision" by an employer can form the basis for liability for retaliation under Title VII. Hernandez, supra. "Ultimate employment decisions" include acts such as hiring, granting leave, discharging, promoting, and compensating. Mattern v. Eastman Kodak Company, 104 F. 3d 702 (5th Cir. 1997), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed. 2d 260 (1997). Title VII does not address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions. Ackel, supra.
In his September 2002 deposition, McGee stated that he did not feel there had been retaliation against him personally. Furthermore, McGee's claims of retaliation involved being required to perform extra unscheduled cleaning and chores after allegations of discrimination surfaced in the media. These acts do not fall into the category of "ultimate employment decision."
Summary judgment on the issue of McGee's claims of retaliation is appropriate and hereby granted.
FAILURE TO PROMOTE
An employee presents a prima facie case of discrimination in a failure to promote case by demonstrating four elements: (1) that the employee is a member of the protected class; (2) that he sought and was qualified for the position; (3) that he was rejected for the position; and (4) that the employer continued to seek or promoted applicants with the plaintiff's qualifications.
Davis v. Dallas Area Rapid Transit, 383 F. 3d 309 (5th Cir. 2004). If a plaintiff establishes a prima facie case of discrimination based on failure to promote under Title VII, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiff's rejection. Perez v. Region 20 Educ. Service Center, 307 F. 3d 318 (5th Cir. 2002). If the employer articulates a nondiscriminatory reason for its failure to promote the plaintiff, then the plaintiff must show that the employer did intentionally discriminate, which the plaintiff may do by demonstrating that the employer's proffered reason is simply a pretext for discrimination. Perez, supra.
McGee's failure to promote claim arises from his contention that he was not given a chance to "drive out of class,"
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