Free Motion for Judgment as a Matter of Law - District Court of Connecticut - Connecticut

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United States Court of Appeais,
Fifth Circuit.
Jack DODGE, Plaintii*f—Appeliant,
The HERTZ CORPORATION, Defenciant—Appeliee.
No. 04-51023.
Summary Caiendar.
Decided Feb. 11, 2005.
Background: Former employee sued former employer under Titie VII for aileged race and gender
discrimination. The United States District Court for the Western District of Texas granted summary
judgment for former employer. Former employee appealed.
Hoiding: The Court of Appeals heid that former ernpioyee failed to establish prima facie case of
intentional discrimination.
West irieadnotes
i_§e_y_Ci_te Notes
Civil Rights
i:;:7BtI Employment Practices
t:==78l<1138 k. Disparate Treatment. Most Cited Cases
~o.q§_ Civil Rights geymgitme Notmsm
ii¤=78II Employment Practices
-=i¤=78l<1164 Sex Discrimination in Generai
·i=¤l"78it1179 l<. Discrimination Against Men; Reverse Discrimination. Most Cited Cases
White female branch manager for rental car company, who was disciplined but not terminated when
money went missing from her branch ofhce, was not similarly situated to Hispanic male employee
terminated based on companys belief that he had aitered rental contracts, white serving as branch
manager, to increase frauclulentiy his incentive—based compensation, inasmuch as aileged acts of
misconduct were not neariy identical despite both being considered acts of dishonesty, and therefore
Hispanic male employee failed to show that other similarly situated employees outside protected class
were treated more favorably then he, as required to establish prima facie case of intentional
discrimination. Civii Rights Act of 1964, § 701 et seq., 42 U.S.C.A. §_2_QQ_0_e_ et seq.
*243 Arthur G. Guzman, San Antonio, TX, for Piaintiff~Appeliant.
sgphen Edwards Wairaven, Shaddox, Compete, Walraven & Good, San Antonio, TX, for Defendant-
Appeal from the United States District Court for the Western District of Texas, <> 5:03-CV-
Before DAVIS, SMITH, and DENNIS, Circuit Judges.

Case 3:03-cv-00149-WIG Document 161 -10 Filed 07/28/2005 Page 2 of 3
PER CURIAM: ]Fi\l*l ““ ‘‘‘‘
,i?_l_\l__”j Pursuant to 5Ti—l 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
**1 Jack Dodge appeals a summary judgment in favor of The Hertz Corporation ("Hertz") dismissing
his employment discrimination suit. For essentially the same reasons given in the district court's order
entered on August 28, 2004, we affirm.
Dodge was informed that he had been terminated for what was termed "dlshonesty." Specifically, it
was l~lertz‘s belief that while sewing as manager of a Hertz branch in San Antonio, Dodge had altered
numerous rental contracts to increase fraudulently his incentive-based compensation while avoiding
Shortly after his dismissal, Dodge, an hispanic male, filed a complaint with the Equal Employment
Opportunity Commission, then sued Hertz claiming race and sex discrimination in violation of title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Dodge argues that similarly
situated white females were not as severely disciplined for similar violations. The court concluded that
(i.) Dodge had failed to establish a prima facie case, and even assuming arguendo that he had, (2)
Hertz had articulated a legitimate, nondiscriminatory basis for his termination, and (3), Dodge had
not shown that Hertz's reasons for terminating him were pretextual.
*244 II.
We review a summary judgment de novo and are bound by the same standards as those employed by
the district court. See Qbmapiin v. /\·'ationsCredit Corp., 307 F.3d 368, 371 {Sth Namely,
summary judgment is appropriate only where " ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,' when viewed in the light
most favorable to the non-movant, ‘show that there is no genuine issue as to any material fact.' " [ici
Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (Sth Cir.2002) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249—50,__,1t_0_6_5,_C,@_5_{_J,{5,_91 L.Ed.2cl 202_(_I_9m£3L6)_). Once the moving party has
demonstrated that the non—movlng party has no evidence such that a reasonable jury could support a
verdict in its favor, the non-moving party must put forth specific facts that demonstrate a genuine
factual issue for trial. See Brennan v. Mercedes Benz lJSA,_388 F.§;;i_;t_§_;;i,_,3,_3_§_,(5th Cir.2,Q,_0m4,),
Lacking any direct evidence of discriminatory intent, Dodge may support his title VII claim with
indirect evidence under the burdemshifting method delineated in Mcilonne,/i_Doug/as v. Q_i;e_eg,_5i__,t_;,_
U.S. 792, 802—03,_93 S.Ct. 1817,_;6___l,,§d,_2_d_6_§3_8_(1973). As the district court said,
The indirect method of proof ln an employment discrimination case requires that a plaintiff carry the
initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. A
plaintiff establishes a prima facie case of intentional discrimination by showing that (1) he is within a
protected class, (2) he was qualified for the position sought, (3) he suffered an adverse employment
action, and (4) others similarly situated but outside the protected class were treated more favorably.
**2 On appeal, the parties dispute only whether Dodge has shown that other employees, similarly
situated but outside the protected class, were treated more favorably.
The crux of Dodge's argument is the experience of April Frazee, a white woman who also served as a
branch manager at a San Antonio area Hertz branch. In July 2002, money from Frazee‘s branch went
missing. Consequently, although Hertz concedes Frazee's conduct constituted dishonesty, she was
disciplined but not terminated. Therefore, according to Dodge, because both Frazee and he were
allegedly involved in acts of dishonesty, he has established a prima facie case.
To demonstrate that another employee outside the protected class, but treated more favorably, is
"simllarly situated," a plaintiff must show that the supposed misconduct of both employees was
"neariy identicai." Wa/lace v. Methodist Hdsp_,__5_ys., 271 F.3d 21_2,,_,2,2_,l_(5th CZlr.2001).
Although Dodge is correct that Hertz has ciasslned both his alleged misconduct and that in which
Frazee purportedly engaged as *'dishonest," the mere fact that two situations can be classified in the
same broad category is a far cry from their being nearly identical. For example, an employee who

Case 3:03-cv-00149-WIG Document 161-10 Filed 07/28/2005 Page 3 of 3
concocts a false stoay to expiein his iate arrival at worl< and an employee who ernbezzles large sums
of rnoney are both engaged in dishonest behavior. Nevertheless, these two hypothetical incidents of
rnisbehavior would likely warrant radically different responses from the employer and could not be
said to be "nearly identical? Consequently, Dodge cannot show that any other similarly situated
employees were treated more favorably than he, so he has not established a *245 prima facie case
of intentional discrirnination._i Fl\i1|
,l§j)l__;_,_ The district court alternatively held that even if Dodge could make out a prima facie
case, he was unable to demonstrate that Hert2's stated nondiscriminatory reason for
dismissing hirn was pretextual, Dodge challenges this conclusion on appeal. Because we
hold that Dodge has not established a prima facie case, however, we do not reach his
other arguments,
€L.A.5 (Texn),2005.
Dodge v. Hertz Corp,
124 Fecl.Appx` 242, 2005 Wi. 1350586 (Sth Ciri("l”ex.))