Opinion
No. 3:02-CV-1255-P.
July 30, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant's Motion for Summary Judgment, filed May 18, 2004. After careful consideration of the Parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendant's Motion for Summary Judgment.
On June 10, 2004, Plaintiff filed a Response to Defendant's Motion for Summary Judgment. On June 14, 2004, Plaintiff filed a forty-eight page Amended Response, which only contained the facts of this case, and then requested leave to file a fifty-one page Brief to inform the Court of his legal arguments and authority. The Court denied Plaintiff's request, struck Plaintiff's Amended Response and Brief, and required Plaintiff to file a Response consistent with the Local Rules no later than June 28, 2004. On June 28, 2004, Plaintiff filed an Amended Brief, which contains a five page chart entitled "Summary of Critical Dates." In his Amended Brief, Plaintiff refers to the evidence in his "factual response", which the Court assumes is Plaintiff's Amended Response. (Pl.'s Am. Br. at 42, 44, 49.) However, since the Court struck Plaintiff's Amended Response, the Court will not consider it in determining Defendant's Motion for Summary Judgment.
Plaintiff filed his Motion for Leave to File Supplemental Appendix on June 28, 2003. Plaintiff requests leave to include portions of Stover's deposition, which concluded on June 21, 2004, and other "late-produced documents." The Court GRANTS Plaintiff's Motion for Leave to File Supplemental Appendix, and the Supplemental Appendix shall be filed contemporaneously with the entry of this Order.
On July 9, 2004, Defendant filed its Reply to its Motion for Summary Judgment, Objections to Plaintiff's Summary Judgment Response Evidence, and a Motion to Strike Declarations of Trace Bell, Charles Kennedy and Juanita Taylor and the Affidavits of Gerald Jones and Anthony Reed. Despite Defendant's objections to Plaintiff's summary judgment evidence, the Court has ruled in Defendant's favor on their summary judgment motion. Therefore, Objections to Plaintiff's Summary Judgment Response Evidence, and a Motion to Strike Declarations of Trace Bell, Charles Kennedy and Juanita Taylor and the Affidavits of Gerald Jones and Anthony Reed are hereby DENIED as MOOT.
BACKGROUND
This lawsuit arises from Plaintiff's allegations that Defendant subjected him to race discrimination and retaliation in violation of Title VII and 42 U.S.C. § 1981. (Pl.'s Am. Br. at 1.) Specifically, Plaintiff asserts the following claims against Defendant:
(1) race discrimination in violation of section 1981 for failure to hire him as Vice President ("VP") or Chief Information Officer ("CIO");
(2) race discrimination in violation of Title VII and section 1981 for Defendant's failure to promote Plaintiff to the position of VP or CIO in June or July 2000;
(3) race discrimination in violation of Title VII and section 1981 for Defendant's demotion of Plaintiff on February 19, 2001;
(4) race discrimination and retaliation in violation of Title VII and section 1981 for Defendant's failure to promote Plaintiff to Senior Director of Enterprise Systems in February 2001;
(5) race discrimination and retaliation in violation of Title VII and section 1981 for Defendant's denial of compensation and bonuses on March 8, 2001 and denial of reconsideration for such decision on and after July 2, 2001; and
(6) race discrimination and retaliation in violation of Title VII and section 1981 for Defendant's termination of Plaintiff on July 23, 2001.
In his Amended Brief, Plaintiff voluntarily withdrew his claims of age discrimination and retaliation in violation of the ADEA, and his Title VII claim for Defendant's failure to hire or promote Plaintiff into the position of CIO in February 2000. (Pl.'s Am. Br. at 1.)
After setting forth the relevant facts in this case, the Court will address each claim in turn.
Plaintiff, an African American with over twenty five years experience in the area of Information Technology ("IT"), was contacted by a recruiter regarding the position of Director of Information Systems at Efficient Networks ("Efficient") in February 2000. (Pl.'s App. at 1335.) During his interview with Tricia Hosek, VP of Engineering, Plaintiff asked whether he could be considered for the position of VP of IT. Id. at 1336. Hosek informed Plaintiff that they were not currently looking to fill that position. Id. In his interview with Jack Brooks, VP of Human Resources ("HR"), Plaintiff noticed a vacancy on an organization chart for the position of VP of IT, and asked whether he could be considered for that position. Id. Brooks informed Plaintiff that Efficient was not currently looking to fill that position. Id. Brooks further explained that even if Efficient was recruiting for that position, Plaintiff was not a candidate for CIO. (Def.'s App. at 633.) While Plaintiff was a strong fit for Director of Informational Systems, his background and resume did not render him fit as a candidate for CIO. Id.
In the early to mid 1980's, Plaintiff worked at Frito Lay as a Project Lead in the IT area. (Pl.'s App. at 1339.) From March 2, 1988 to October 31, 1990, Plaintiff was the Director of Business Systems at Dallas County Community College District ("DCCCD"), where he served as the liaison between the administrative functions and the IT area. (Pl.'s App. at 825-826; Def's App. at 233.) Plaintiff's supervisor at DCCCD recommended that his contract not be renewed because his overall work performance did not meet the expectations of a Director of his level. (Def.'s App. at 229; Pl.'s App. at 828.) Plaintiff's supervisor noted that Plaintiff lacked a willingness to communicate and was not a team player. (Def.'s App. at 231-232.) Plaintiff also worked as a computer programmer, a cost center manager, and a project manager at Texas Instruments. (Pl.'s App. at 1339.) From January 3, 1994 to July 20, 1994, Plaintiff worked at Ernst Young as an IT Manager/Consultant. (Def.'s App. at 233b; Pl.'s App. at 1339.) From July 25, 1994 to October 25, 1995, Plaintiff served as a Project Manager for the Systems Technology Management Department of the Dallas/Fort Worth International Airport. (Def.'s App. at 29-30, 42, 234.) Based on an unsatisfactory review, Plaintiff was terminated from this position on October 25, 1995. Id. at 234. From December 1995 to December 1998, Plaintiff served as Director of Information Systems at United Advertising Publications. (Pl.'s App. at 847.) Plaintiff left this position after deciding to take his next position. Id. at 849. From December 28, 1998 to May 17, 1999, Plaintiff also served as one of five Vice Presidents of Information Systems at Motel 6/Accor North American ("Motel 6"). (Def.'s App. at 47-48.) During his six months with Motel 6, Plaintiff was responsible for implementing Oracle modules. Id. at 105. Plaintiff's Employee Separation Report indicates that he was separated for "unsatisfactory performance/not qualified." Id. at 263. Plaintiff explains that Motel 6 is a French company, and his inability to speak French contributed to his poor fit for that position. (Pl.'s App. at 1339.)
While Plaintiff refers to this position as VP of IT or CIO, Defendant refers to it as CIO. The Court will refer to this position as CIO to prevent confusion.
Efficient offered Plaintiff the position of Director of Information Systems, and Plaintiff began working in that capacity on February 29, 2000. (Pl.'s App. at 1336.) Plaintiff initially reported to Hosek. Id. In April 2000, Efficient retained TMP, a recruiting firm, to recruit for the CIO position. (Def.'s App. at 622.) On July 31, 2000, Efficient hired Kerry Stover as CIO, and Plaintiff began reporting to him. Id. at 1168, 1337. In October 2000, Stover developed goals and objectives for Plaintiff to accomplish during the Fall fiscal quarter. Id. at 734-735. On November 3, 2000, Stover sent Plaintiff an e-mail, which included the goals and objectives that Stover saw for Plaintiff's area, and requested Plaintiff's thoughts on the proposed goals. (Pl.'s App. at 1481.) Stover indicated in the e-mail that he wanted to complete Plaintiff's goals by the following week. Id. Plaintiff did not agree that all of the goals outlined in the e-mail were achievable due to his reliance on third parties, including the Finance Department. Id. at 1341. This is because a great deal of tension existed between the IT and Finance Departments. (Pl.'s App. at 1345; Def.'s App. at 205.)
In January and February 2001, Stover met with Reed to gauge his progress toward satisfying these goals, and found that Plaintiff had not accomplished each of his written goals. (Def.'s App. at 735.) Specifically, Stover claims that Reed failed to develop an organizational plan for Enterprise Systems, to complete the implementation of requested programs, and to provide an overview of the integration of Efficient's partner relationship management system, or to complete plans for the design and implementation of these systems. Id. at 735-736. Stover also noted that Plaintiff had not improved his relations with internal departments. Id.
In February 2001, Efficient conducted its first of numerous workforce reductions. Id. at 736. Stover stack-ranked the IT Department's employees based on performance, and Plaintiff and Director Gary Manns, a Caucasian, ranked last in the IT Department. Id. Stover initially placed both Plaintiff and Manns on the layoff list. Id. However, instead of terminating him, Stover decided to give Plaintiff an opportunity to accept a demotion as he thought Plaintiff could perform satisfactorily if placed in an IT position with a narrower scope of responsibility. Id.
On February 19, 2001 Stover informed Plaintiff that he would be giving him a negative performance review as a Director, and that he could either resign or accept a demotion to the position of Senior Manager. (Pl.'s App. at 1347; Def.'s App. at 736.) Plaintiff accepted the demotion, and became responsible for the customer support area and the CRM. (Def.'s App. at 166-168, 736.) In late February 2001, Efficient began seeking candidates to fill the newly-created IT position of Senior Director of Enterprise Systems. Id. at 737. This position had supervisory authority over the Enterprise Systems group of the IT Department, as well as included some CIO responsibilities. Id.
On March 5, 2001, Plaintiff went to the EEOC office and filled out an Intake Questionnaire. (Pl.'s App. at 1349.) The EEOC Investigator told Plaintiff that he would draft a Charge for Plaintiff to sign and send it to him later. Id. However, Plaintiff did not sign the Charge until May 7, 2001, and accordingly, the EEOC did not send Brooks a Notice of Charge of Discrimination until May 22, 2001. (Def.'s App. at 288; Pl.'s App. at 1329.) On March 19, 2001 at 10:00 a.m., Plaintiff sent an e-mail to HR Manager Thora J. Shelton and Brooks informing them that Plaintiff had filed discrimination charges with the EEOC. (Def.'s App. at 730.)
On March 18, 2001, Plaintiff e-mailed Brooks to apply for the position of Senior Director of Enterprise Systems. (Pl.'s App. at 1441.) Confused as to why Plaintiff would want to be considered for the Senior Director position so recently after he was demoted from an inferior position, Brooks arranged a meeting with Plaintiff and Stover on March 19, 2001 in the afternoon. (Def.'s App. at 662; Pl.'s App. at 1442.) In that meeting, Brooks communicated to Plaintiff that based on his performance and recent demotion, he was not qualified for the Senior Director position, and thus, would not be considered a candidate. (Def.'s App. at 663-664.) In June 2001, Efficient hired Stephen Halle as Senior Director. Id. at 738.
When a subsidiary of Siemens, Inc. bought Efficient in April 2001, Efficient implemented a discretionary bonus program called the "Efficient Networks Retention Program," which consisted of two separate programs, the MRP and the DRP. (Def.'s App. at 736.) Under the MRP, an employee received an award simply if he or she was employed. (Pl.'s App. at 1178.) Efficient's President Mark Floyd calculated the amount of the MRP for each employee by compiling a list of their stock options and determining their future value to the company. Id. The DRP provided eligible participants with bonus incentives. (Def.'s App. at 737.) Eligibility for participation and the amount of target incentives under the DRP were based upon Efficient's performance, the participant's importance for the future of Efficient, whether the individual's stock options were "under water", and individual performance. Id. Based on his demotion and the performance issues Stover had with Plaintiff, Stover rated Plaintiff's individual performance a two out of a possible four points in connection with Plaintiff's retention bonus. Id. After Floyd made the determinations for every employee, he distributed the list to the VPs for their input on any potential changes. Id. Stover did not recommend any changes with respect to Plaintiff's award. (Pl.'s App. at 1179.) Plaintiff received an MRP of $37,500, but was not eligible for the DRP because his performance did not rank at least a three. (Def.'s App. at 737.)
In late July 2001, Stover convened a series of meetings to inform Halle and Reynolds that due to the economic downturn in the telecommunications industry, Efficient needed to reduce its costs. (Def.'s App. at 463, 472, 475-476, 738.) Stover instructed Halle and Reynolds to review their group's projects, determine which ones were not essential from a strategic business standpoint, and recommend projects which could be eliminated. Id. Upon review, Halle recommended that Efficient discontinue the Enterprise System's CRM and RMA Oracle application projects. Id. at 466, 738. These projects supported Efficient's Call Center and cost about $4.5 million to implement and support. Id. at 466, 738. Initially, Efficient embarked on these projects assuming that the Call Center's business would double or triple resulting in revenues of $1.5 billion. Id. at 466, 738-739. However, after the economic downturn, Efficient only estimated revenues to approach $500 to $600 million with a smaller Call Center. Id. at 467, 739. Accordingly, Stover explains that he and his staff could not reasonably envision spending $4.5 million to support a Call Center consisting of 14 employees. Id. at 476, 739.
In a separate meeting, Reynolds, Halle, and Stover discussed a reduction in head count in their Departments, and discussed each of the IT applications and projects that their employees supported. Id. at 476, 739. Stover informed Halle and Reynolds that they would have to stack rank all the team members in their Departments. Id. at 476, 739. Stover instructed that in making the stack rank, they should consider the existing applications, and how they were going to support those and the users going forward. Id. In ranking his employees, Halle claims he took into consideration the following factors regarding each employee: existing and future assignments, interaction with other team members and customers, overall team participation, and the skill set to carry out the functions. Id. at 479. After considering such factors, Reynolds and Halle discussed the applications the employees supported, and prepared a spreadsheet ranking them. Id. at 491. According to Defendant, Plaintiff ranked last due to Efficient's decision to eliminate the CRM and RMA Oracle projects, and the delays associated with such projects. Id. at 739, 498. Efficient terminated Plaintiff, as well as roughly twenty percent of its workforce, on July 23, 2001. Id. at 740.
DISCUSSION
I. Summary Judgment Legal Standard.Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Chelates Corp., 477 U.S. at 323. The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Chelates Corp., 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the non-movant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id. II. Title VII Legal Standard.
"When used as parallel causes of action, Title VII and section 1981 require the same proof to establish liability." Shackelford v. DeLoitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999). Since Plaintiff's Title VII and section 1981 causes of action arise from the same facts, the Court will analyze such causes of action conjunctively. Roberson v. Alltel Info. Servs., No. 03-10956, 2004 U.S. App. LEXIS 13483, at *6 (5th Cir. Tex. June 30, 2004).
Title VII prohibits employers from refusing to hire, discharging, or discriminating against individuals with respect to conditions of their employment based on their race, as well as retaliating against employees who engage in protected conduct. 42 U.S.C. 2000e-2; see also Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003) (citing 42 U.S.C. 2000e-3(a)(2000)). Plaintiff requests that the Court apply the following Title VII approach recently set forth by the Fifth Circuit:
"the plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact either (1) that the defendant's reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant's reason, while true, is only one of the reasons for its conduct, and another motivating factor is the plaintiff's protected characteristic (mixed-motives alternative)." Rachid v. Jack in the Box, Inc., No. 03-10803, 2004 U.S. App. LEXIS 12873, at *18 (5th Cir. Tex. June 25, 2004) (internal quotations omitted).
While Plaintiff's predominate theory is pretext alternative, he also requests that the Court analyze his claims under the mixed motives alternative. (Pl.'s Am. Br. at 11.) Under either theory, Plaintiff's claims will not survive summary judgment.
III. Defendant's Failure to Hire Plaintiff as CIO in February 2000.
Plaintiff first claims that Defendant engaged in racial discrimination by not hiring him as CIO in February 2000. (Pl.'s Am. Br. at 13.) To establish a prima facie case of discrimination for his failure to hire claim, Plaintiff must show that: 1) he is a member of a protected class; 2) he applied for a position; 3) he was qualified for that position when he applied; 4) he was not selected for the position; and 5) after Defendant declined to hire him, the position either remained open or a person who is not a member of a protected class was chosen in his stead. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994). As Defendant points out, an actionable claim for discrimination only arises when a position is available. See Mills v. Int'l Brotherhood of Teamsters, 634 F.2d 282, 285 (5th Cir. 1981).
Plaintiff does not dispute that both Hosek and Brooks informed him during his interviews in February 2000 that Efficient was not currently looking to fill the position of CIO. (Pl.'s App. at 1336.) The CIO position was filled by Stover, who first learned of the availability of the position in late April 2000, and began interviewing for the position in May 2000. Id. at 1168, 1195. Stover began working at Efficient on July 31, 2000, and estimates that the length of time between the termination of the interview process and an offer of employment was only a few days. Id. at 1168.
According to Hosek, Efficient made the determination to open up the CIO position about six months after it hired Plaintiff. (Pl.'s App. at 1143.) Hosek testified that at the time she interviewed Plaintiff, there was no official job opening for CIO, no job description written down, and no search going on for that position. (Def.'s App. at 584.)
Plaintiff attempts to show that Efficient was in fact looking for someone to fill the position at the time Plaintiff was hired as Director of Information Systems by directing the Court to Brooks' deposition, where he stated that it took probably more than two months to recruit the CIO. (Pl.'s App. at 1048.) Based on this, Plaintiff concludes that "if recruiting took more than two months before late April 2000, when Stover was contacted about the position, then recruiting for the position must have started before late February 2000, the same time as Reed was interviewing at Efficient." (Pl.'s Am. Br. at 13-14.)
However, Plaintiff's conclusion rests on the assumption that "recruiting" entailed something prior to Stover learning of the availability of the position in late April 2000. However, Plaintiff fails to point to any evidence indicating that Efficient was recruiting for the CIO position prior to late April 2000, and his mere speculation that Defendant was doing so will not suffice to defeat a motion for summary judgment. See Douglass, 79 F.3d at 1429. In the absence of any evidence to establish that the CIO position was open in February 2000, Plaintiff fails to establish a prima facie case regarding his failure to hire claim, and thus, it fails as a matter of law.
IV. Defendant's Failure to Promote Plaintiff as CIO in July 2000.
Defendant moves for summary judgment on Plaintiff's failure to promote claim arguing that he cannot show that he was qualified for the CIO position. (Def.'s Reply at 5.) The CIO job posting requested, among other things, a candidate with strong business orientation skills, broad experience in managing IT, demonstrated ability to bring the benefits of IT to solve business issues, and demonstrated ability to identify and evaluate new technological developments and gauge their appropriateness for the business. (Def.'s App. at 745.)
To show that he was qualified for the CIO position, Plaintiff offers the deposition testimony of James Roberts, a recruiter of Advanced Communication Solutions ("ACS"), and a summary of Plaintiff's previous employment titles and duties. (Pl.'s Am. Br. at 15.) Roberts testified that given Plaintiff's resume and past, he would "present him for opportunities" for placement at the CIO level. (Pl.'s App. at 972.) However, Efficient did not employ ACS to recruit for the CIO position, and thus, neither ACS nor Roberts was even aware that the position was available. Id. Roberts did not testify that he knew Efficient's requirements for the CIO position, nor did he attempt to explain how Plaintiff is qualified to meet each of those requirements. Therefore, the Court finds that Roberts' testimony that he would present Plaintiff as a candidate for a CIO level position does not establish that Plaintiff was qualified for the CIO position at Efficient.
Efficient has never asked ACS or Roberts to place anyone in a CIO position, and Roberts testified that he cannot recall placing anyone at the CIO level. Id.
Next, Plaintiff attempts to show he was qualified for the CIO position by summarizing his previous job titles and corresponding duties. (Pl.'s Am. Br. at 15.) However, Plaintiff fails to explain how such titles and duties rendered him qualified for the CIO position. Therefore, the Court finds that Plaintiff has not shown he was qualified for the CIO position. Even if the Court assumes that Plaintiff was qualified for the CIO position, and thus, can establish a prima facie case of discrimination, Plaintiff still fails to raise a material fact issue as to whether Defendant's reasons for not promoting him were pretextual.
The CIO job description required a candidate who could "mesh well with the existing management," "function in a collaborative environment," and "build alliances with co-workers." (Def.'s App. at 745.) Plaintiff does not dispute that tension existed between the Finance and IT Departments, and that he had a conflict with some individuals within the Finance Department. (Pl.'s App. at 1345; Def.'s App. at 205.) Hosek testified that she was involved in a set of meetings that occurred once every week or two to deal with conflicts among the Departments because Plaintiff "was not effectively able to handle the conflicts." (Def.'s App. at 576-577.) Both Hosek and Brooks testified that they received complaints regarding Plaintiff's conflicts with the Finance Department. Id. at 595, 597, 639-646. For these reasons, Defendant deemed Plaintiff unqualified for the CIO position, and thus, decided not to promote him. (Def.'s Mot. Summ. J. at 32; Def.'s Reply at 7.) Since Defendant articulated a legitimate, non-discriminatory reason for failing to promote Plaintiff, the burden shifts to Plaintiff to establish that this reason is not true, or that his race was a motivating factor in the decision not to promote.
To establish pretext, Plaintiff asserts that he was clearly better qualified for the CIO position than Stover. (Pl.'s Am. Br. at 18.) "A showing that the unsuccessful employee was clearly better qualified is enough to prove that the employer's proffered reasons are pretextual." Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002). However, the Fifth Circuit has cautioned that "unless disparities in curricula vitae are so apparent as virtually to jump off the page and slap us in the face," courts should not substitute their judgement in the place of employers with respect to promotion decisions. Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993).
After working two years at South Central Bell as an Assistant Staff Manager, Stover worked as a consultant, senior consultant, manager, and partner at Andersen Consulting for almost twenty years. (Def.'s App. at 1162.) Stover's role at Andersen was to assist businesses in developing and implementing large scale systems by defining efficient processes for the system development activities, designing effective systems, and assisting the internal data processing groups in how to manage the system once implemented. Id.
To show that Stover was less qualified, Plaintiff argues that Stover had never been a CIO, Director of Informational Systems, Project Manager managing Oracle programs, or held any information technology position, nor did he have any experience with Oracle, PeopleSoft, or HRIS. (Pl.'s Am. Br. at 18.) Plaintiff also points to the fact that he has more degrees than Stover. Id.
To clarify, Stover did not have any experience with the Oracle program; however, he had supervised dozens of Oracle installations at Andersen Consulting. (Pl.'s App. at 1163.)
However, the CIO job description did not require experience with Oracle, PeopleSoft, or HRIS, or specify any type of degree necessary for the position. (Def.'s App. at 744-745.) Rather, the CIO position required "strong business orientation combined with broad experience managing IT or related activities (i.e., in IT — consulting or vendor experience)." (Def.'s App. at 745.) Id. at 1162. Furthermore, Stover testified that during an interview for the CIO position, he stated that he had no Oracle experience. (Pl.'s App. at 1170.) Brooks responded that Efficient did not need specific Oracle experience for the CIO position, but rather, they were looking for someone with exemplary communication skills to guide their executive team. Id. Finally, the disparities in Stover's and Plaintiff's skills are "not so apparent as to virtually to jump off the page and slap us in the face." Therefore, the Court finds that Plaintiff did not establish that he was clearly better qualified than Stover.
Plaintiff also asserts that he can establish pretext by relying on the totality of the circumstances of Efficient's pattern of conduct toward himself and other African American employees. (Pl.'s Am. Br. at 19.) To support his claims of a pattern of discriminatory conduct at Efficient, Plaintiff in many instances cites to his own conclusory statements as evidentiary support. Id.
Plaintiff first claims that Efficient hid the entire hiring process for the CIO position from him, and attempts to analogize this case to Blow v. City of San Antonio, 236 F.3d 293 (5th Cir. 2001). Id. at 14, 19. Implicit in Plaintiff's argument that Defendant "hid" the hiring process for the CIO position from him is that Defendant was required to inform him of the hiring process. Plaintiff does not present any evidence, nor does the summary judgment reveal any evidence, demonstrating that Efficient was required to post their job openings. Therefore, Plaintiff's reliance on Blow is misplaced.
In Blow, the plaintiff, an African American female employed by the City as a Government Documents Librarian II, sued the City after it hired a white, male for the position of Government Documents Librarian III ("GDL-III"), a position the plaintiff had sought. 236 F.3d at 294-295. The Fifth Circuit found that the plaintiff had established a prima facie case of discrimination, that the City had proffered a legitimate, non-discriminatory reason, that is, the plaintiff did not file her application in time for it to be considered, and that the plaintiff raised a fact issue with respect to pretext by offering an "equally plausible explanation" for the defendant's behavior. 236 F.3d at 296-297. Specifically, the plaintiff presented evidence that the City's legitimate, non-discriminatory reason could be false due to her supervisor's deliberate failure to post the job opening within the department, discouraging her to apply, misinforming her about when to apply, and hiring an outside applicant before the City could consider the plaintiff's application. Id. at 297.
Several factors in Blow distinguish it from the case at bar. To begin with, the plaintiff was on the eligibility list for the position of GDL-III, whereas here, there is no objective evidence indicating that Plaintiff was qualified for the CIO position. Id. at 295. Also, qualified city employees were given a preference when establishing eligibility lists, which meant that city employees were placed at the top of the eligibility list. Id. In addition, the City's affirmative action plan established departmental goals for job groups in which there was significant minority or female underutilization, and the plaintiff had presented some evidence that female blacks were underrepresented in the library system. Id. at 295. Finally, an administrative directive required the City to publicize the job opening within the department. Id. at 297.
Brooks states that he did not post a job opening for the CIO position because Efficient already knew the skill sets of its employees, and thus, knew that they were not qualified. (Def.'s App. at 624.) Instead, Brooks retained a search firm to recruit candidates for the position. Id. at 622, 624-625.
Plaintiff asserts that the fact that Efficient eliminated three out of the four African Americans under Stover establishes pretext. (Pl.'s Am. Br. at 19.) Stover explains that Efficient eliminated the positions of Gerald Jones and Juanita Taylor because they decided to eliminate the CRM and RMA projects they worked on. (Def.'s App. at 739.) Efficient retained Juergen Stegmair, a Caucasian, who was supporting the CRM project at the time of the stack ranking, to support the RMA Scan Application project and a CRM package called HEAT that was going to be displaced by the Oracle CRM. (Pl.'s App. at 1319-1320; Def.'s App. at 739.) At the time of the stack ranking, HEAT was supported internally within the customer support group, which was transitioning over to Enterprise Systems. (Pl.'s App. at 1320.) Stover assigned it to Stegmair because he possessed superior technical skills. (Def.'s App. at 739.) Halle also believed that Stegmair was a better candidate to support the RMA scan application. Id. at 516. After reviewing the project, Stegmair concluded that the scan application's hardware was inoperable and the scanning gun lacked a power supply. Id. Efficient laid-off Stegmair six months later. Id. Since Plaintiff does not present any evidence to counter Defendant's explanation, the Court finds that this does not establish pretext.
Plaintiff also points to Shelton's admission that African Americans were under represented at the executive level as another example of pretext. (Pl.'s App. at 1023.) However, this statement alone without any corroborating evidence does not establish pretext as to Defendant's reasons for not promoting Plaintiff.
Plaintiff further alleges that there is a disparity in wages and benefits between Caucasians and African American employees. (Pl.'s Am. Br. at 20.) To support this allegation, Plaintiff first cites to the Affidavit of Gerald Jones, where he states that he was singled out due to his race because at least three individuals (all Caucasian) in his department received substantial merit raises prior to him. (Pl.'s App. at 805.) However, neither Plaintiff nor Jones identify the individuals allegedly given the raises, nor do they attempt to show that those persons were in situations nearly identical to Plaintiff's. The remaining evidence Plaintiff cites to consists of pages of deposition testimony including estimates of different employees' salaries and bonuses. Id. at 1181-1182, 1213, 1215, 1278. However, Plaintiff makes no attempt to establish where the disparity lies, or demonstrate how other factors, such as the different positions of the employees or their performance reviews, do not explain this "disparity."
Finally, Plaintiff asserts that the fact that African Americans testified to discriminatory treatment establishes pretext. However, none of the Affidavits Plaintiff cites to contains any evidence of racial discrimination on the part of anyone involved in the process to hire Stover as CIO.
Plaintiff failed to establish that Defendant's legitimate, non-discriminatory reason was false, or that Plaintiff's race was a motivating factor in Defendant's decision not to promote Plaintiff. Therefore, Plaintiff's failure to promote claim fails as a matter of law.
V. Plaintiff's Claim of Discriminatory Demotion.
Defendant argues that Plaintiff cannot establish a prima facie case of discrimination with respect to his demotion because he was not qualified for the Director position due to his performance problems, including his strained relations with internal departments, interpersonal conflicts, and his failure to meet his performance goals. (Def.'s Mot. Summ. J. at 35.) However, the majority of the reasons Defendant proffers constitute subjective criteria, which "should not be considered a part of the prima facie evaluation in a summary judgment proceeding." Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 2000). "While subjective criteria . . . may serve legitimate functions, they also provide opportunities for unlawful discrimination because the criteria itself may be pretext for . . . discrimination." Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001) (citing Lindsey, 987 F.2d at 327) (internal quotations omitted). Thus, an employer may not "utilize wholly subjective standards by which to judge its employees' qualifications and then plead lack of qualification when its promotion process . . . is challenged as discriminatory." Medina, 238 F.3d at 681 (quoting Crawford v. Western Electric Co., 614 F.2d 1300, 1315 (5th Cir. 1980)).
Since the decision to demote Plaintiff was based in large part on Stover's dissatisfaction with Plaintiff's job performance, the Court will not allow this to prevent Plaintiff from establishing a prima facie case. Rather, the Court will consider such subjective criteria, along with any supporting evidence, in the later stages in the McDonnell Douglas three-step analysis. Lindsey, 987 F.2d at 327. Accordingly, the Court finds that Plaintiff established a prima facie case of discrimination, and the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for demoting Plaintiff. Defendant claims that it demoted Plaintiff due to unsatisfactory performance, and thus, the burden shifts back to Plaintiff to prove that Defendant's proffered reason is not true, or that Plaintiff's race was a motivating factor in Defendant's decision to demote him. (Def.'s Mot. Summ. J. at 36.)
To establish pretext, Plaintiff claims that on July 1, 2000 he received positive feedback from his initial supervisor Hosek with respect to his performance, and he received a merit based pay increase. (Pl.'s Am. Br. at 24.) However, this evidence is irrelevant as Stover, not Hosek, made the decision to demote Plaintiff after he did not meet Stover's goals and objectives. Therefore, the fact that Plaintiff received positive feedback and a merit based increase with a former supervisor does not demonstrate that Stover's reason for demoting Plaintiff was false, or that race was a motivating factor in Stover's decision to demote Plaintiff.
To support this claim, Plaintiff first points the Court to page 1132 in his Appendix, which does not indicate that Hosek gave Plaintiff positive feedback or a merit based pay increase. Plaintiff also cites to his own Affidavit to support this contention.
Plaintiff also argues that pretext is demonstrated by Efficient's failure to follow its own personnel policies regarding disciplinary problems in demoting Plaintiff without documentation. (Pl.'s Am. Br. at 24.) However, "evidence of departures from prior procedures does not suffice to defeat summary judgment in a discrimination case unless there is some evidence that the departures were meant to be discriminatory." Scales v. Slater, 181 F.3d 703, 711 (5th Cir. 1999). Here, Plaintiff does not present any evidence to show that the departures were meant to be discriminatory. To the contrary, Reed, even though ranked last with Manns, received better treatment than Manns, a Caucasian, as Manns was laid off, and Reed was offered a demotion. (Def.'s App. at 736.) Therefore, this argument does not establish pretext.
Plaintiff states that "Efficient's policy handbook 8.03 "sets forth how Defendant should have handled Plaintiff's demotion. (Pl.'s Am. Br. at 24.) Plaintiff fails to cite the Court to the personnel policy, explain what constitutes disciplinary problems, or to show that the same policy would have applied to Plaintiff's demotion. (Pl.'s App. at 1010.) To the contrary, as Bruce Brown explained in a letter to Plaintiff, section 8.03 of the Employment Policies and Procedures Manual "does not force or require a manager to follow certain, specific steps in connection with correcting unacceptable workplace conduct or substandard job performance. Indeed, the policy provides a manager with discretion to address unacceptable workplace conduct or substandard job performance in a manner deemed by the manager to be most appropriate under the circumstances." (Pl.'s App. at 1464.) Shelton confirmed Brown's testimony that Efficient's standard disciplinary policy was discretionary by management. Id. at 1015.
In explaining why he decided to demote Plaintiff, Stover explains that "in addition to Reed's inability to improve relations with Finance, Human Resources, and other departments, Reed did not accomplish each of his written goals." (Def.'s App. at 735.) Plaintiff spends a great deal of time arguing that he raises material issues of fact regarding whether the Finance Department problems were due to racism, and explaining that relations were strained prior to Plaintiff's arrival and were inevitable. (Pl.'s Am. Br. at 24-27.) Plaintiff also provides testimony from other African Americans to show that they experienced hostility from the Finance Department, and that the problems in the Finance Department stemmed from sources other than Plaintiff. Id. at 25, 27. However, Plaintiff's explanations for why he could not meet his goals and objectives are irrelevant to the Court's inquiry. The focus of the Court's inquiry is on whether Defendant's legitimate, non-discriminatory reason was false, or whether Stover's decision to demote Plaintiff was motivated by race.
Plaintiff claims that he raises material issues of fact regarding his job performance by submitting Affidavits of his subordinate's observation of his performance. (Pl.'s Am. Br. at 33.) To begin with, Plaintiff submits the Affidavit of Juanita Taylor, a former employee who only worked at Efficient for six weeks during June and July 2001. (Pl.'s App. at 787.) As such, Taylor was not even around for the events that led to Plaintiff's demotion and denial of promotions and bonuses. Furthermore, Taylor's Affidavit does not mention Plaintiff's job performance goals and objectives. Instead, Taylor states that the Finance Group treated Plaintiff rudely and Stover ignored or met Plaintiff's suggestions with animosity. Id. at 790. However, aside from her conclusory allegations, Taylor fails to link any of this behavior to racism.
Plaintiff next submits the Affidavit of Trace Bell, an employee hired by Plaintiff and employed with Efficient from May 2000 to February 2003. Id. at 792. Bell explains that Plaintiff's ideas were met with resistance, and that although he considered Plaintiff an effective and competent IT Manager, he was not surprised when Plaintiff was laid off as he had long suspected that members of upper management were looking for a way to get rid of him. Id. at 793-796. However, Plaintiff does not offer any evidence to show that Bell was aware of Stover's expectations of Plaintiff's job performance, or to counter Stover's findings. Also absent from Bell's Affidavit is any indication that race played a part in Efficient's decisions regarding Plaintiff.
Finally, Plaintiff submits the Affidavit of Charles Kennedy, an employee of Efficient from May 2000 to November 2003. Id. at 798. Again, Kennedy speaks to the resistance to Plaintiff's suggestions and the strain between the Finance and IT Departments. Id. at 799. However, absent from Kennedy's Affidavit is any evidence to counter Stover's findings that Plaintiff had failed to achieve his goals and objectives. Furthermore, Kennedy's Affidavit does not indicate that Plaintiff's race was a factor in any of Efficient's decisions regarding Plaintiff's employment. Therefore, none of these Affidavits raise a fact issue regarding Plaintiff's job performance.
Plaintiff also asserts that he was given thirteen to fifteen tasks to handle, while non African American employees would be given just a few tasks. However, the only evidence he offers to support this assertion is his own conclusory Affidavit. (Pl.'s App. at 1343.) Plaintiff does not identify the Caucasian employees who were allegedly treated better and does not attempt to show that those employees' circumstances were similar to Plaintiff's. Plaintiff's bare assertions that some unnamed Caucasians were assigned fewer tasks, without more explanation, is insufficient to establish pretext.
Since Plaintiff failed to satisfy his burden of showing that Stover's legitimate, non-discriminatory reason was false, or that his race was a motivating factor of Stover's decision to demote, Plaintiff's claim of discriminatory demotion fails as a matter of law.
VI. Plaintiff's Discrimination and Retaliation Claim for Failure to Promote Plaintiff to Senior Director in March 2001.
A. Discrimination.
Defendant contends that Plaintiff cannot establish a prima facie for failure to promote to Senior Director because he was not qualified for the position. (Def. Mot. Summ. J. at 37.) To show that he was not qualified, Defendant points to the fact that Plaintiff had been recently demoted from an inferior position due to unsatisfactory performance. (Def.'s App. at 735-736.) The Court agrees, particularly in light of the fact that this position had supervisory authority over the Enterprise Systems group of the IT Department, as did Plaintiff's former position. Id. at 737. Even if the Court assumes arguendo that Plaintiff could establish a prima facie case, his claim for failure to promote would not survive summary judgment.
Defendant explains that the reason Plaintiff was not promoted to Senior Director was because Efficient had recently demoted Reed due to unsatisfactory performance from a Director position which was one step below the Senior Director position. (Def.'s Mot. Summ. J. at 37.) Accordingly, the burden shifts to Plaintiff to show that Defendant's reason for not promoting him to the Senior Director position was false, or that race was a motivating factor in Defendant's decision not to promote him.
To establish pretext, Plaintiff attempts to show that he was clearly better qualified than Halle, the person Efficient chose to fill the position of Senior Director. (Pl.'s Am. Br. at 31-32.) Halle, a college graduate, has over twenty years experience in the IT field. (Pl.'s App. at 1272-1276.) Halle began his career selling telephone systems. Id. at 1272-1273. After eight years in that industry, Halle ran his own consulting company specializing in telecommunications and data communications for two years, worked for a hospital as Manager of Network Computing for five years, worked as a consultant evaluating business plans and the technology that supported these business plans for a year, and then worked as the CIO for Motorvial for two years before working at Efficient as the Senior Director of Enterprise Systems. Id. at 1274-1277.
Plaintiff points to the fact that he received more degrees in relevant areas of study and had more Oracle experience than Halle. (Pl.'s Am. Br. at 31.) Plaintiff also argues that he has more experience in IT Management. Id. at 32. However, Plaintiff fails to show what educational and job experience Efficient required for the Senior Director position. Furthermore, the disparities between Plaintiff's and Halle's resumes are not "so apparent are so apparent as virtually to jump off the page and slap us in the face." Odom, 3 F.3d at 847. Since Plaintiff fails to show that he was clearly more qualified than Halle, his claim of discrimination for failure to promote him to Senior Director fails as a matter of law.
B. Retaliation.
To establish a prima facie case of retaliation, Plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link exists between the protected activity and the adverse employment action. Fabela, 329 F.3d at 414.
Plaintiff claims that he "applied for the position on March 18, 2001, less than two weeks after going to the EEOC to file discrimination charges against Efficient." (Pl.'s Am. Br. at 30.) "Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII." Ackel, 339 F.3d at 385 (quoting Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). "Title VII does not require that a plaintiff prove that the conduct opposed was actually in violation of Title VII, but only that a charge was made, or that participation in an investigation of a violation of Title VII occurred." Green, 284 F.3d at 657.
Plaintiff fails to cite to the summary judgment record to support this claim.
On March 18, 2001, Plaintiff e-mailed Brooks to apply for the position of Senior Director of Enterprise Systems. (Pl.'s App. at 1441.) The next morning Plaintiff sent Brooks an e-mail informing him that he had filed discrimination charges with the EEOC. (Def.'s App. at 730.) That afternoon in a meeting with Plaintiff and Stover, Brooks communicated to Plaintiff that based on his performance and recent demotion, he would not be considered a candidate and was not qualified for the Senior Director position. Id. at 662-664. The fact that Plaintiff did not sign the Charge until May 7, 2001 is irrelevant. Id. at 288. As far as Brooks was concerned, Plaintiff had engaged in protected activity, and Brooks was aware of it when he informed Plaintiff that he would not be considered for the position. Thus, the Court finds that Plaintiff engaged in protected activity.
An employer's refusal to promote can constitute an adverse employment action. See Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999). Furthermore, "Close timing between an employee's protected activity and an adverse action against [her] may provide the `causal connection' required to make out a prima facie case of retaliation." Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001.) The summary judgment record reveals that at the time Brooks explained to Plaintiff that he was not qualified for the Senior Director position, Brooks believed that Plaintiff had filed discrimination charges with the EEOC. Therefore, the Court finds that Plaintiff established a prima facie case of retaliation.
Defendant explains that the reason Plaintiff was not promoted was because Efficient had recently demoted Plaintiff from an inferior position due to unsatisfactory performance. (Def.'s Mot. Summ. J. at 37-38.) Thus, the burden shifts back to Plaintiff to show that he would have been promoted but for his e-mailing Brooks to inform him that he had filed a charge of discrimination with the EEOC. See Evans, 246 F.3d at 354. Plaintiff "may establish the answer to this ultimate question indirectly by showing that the legitimate, nonretaliatory justification offered by [Defendant] for [failing to promote Plaintiff] is pretextual." Id. at 355.
To establish causation, Plaintiff directs the Court to his meeting with Brooks, where Brooks discouraged him from applying for the Senior Director position. (Pl.'s App. at 1350.) According to Plaintiff, Stover stated that if Plaintiff wanted to apply for the position, he would have to put documents in his HR file to support the demotion. (Pl.'s Am. Br. at 30; Pl.'s App. at 882, 1350.) However, the fact that Stover indicated that he would have to put documents in Plaintiff's HR file to support his demotion does not show that Defendant's reason for failing to promote Plaintiff is not true, or that race was a motivating factor in Defendant's decision not to promote Plaintiff to Senior Director. Therefore, Plaintiff's claim of retaliation fails as a matter of law.
Stover denies that he or Brooks made any such statement. (Pl.'s App. at 1191-1192.)
VII. Defendant's Wrongful Denial to Plaintiff of MRP and DRP Bonuses.
A. Discrimination.
Plaintiff first contends that "the bonus allocations appear to be discriminatory on their face." (Pl.'s Am. Br. at 34.) To support this contention, Plaintiff points to a spreadsheet setting forth different employees' stack ranking, their stock shares, and the amount of $5.00 MRP shares and $11.00 DRP shares they would receive. (Pl.'s App. at 1438.) The spreadsheet reveals that Plaintiff was to receive a $37,500 MRP for his 15,000 outstanding shares of Efficient stock, and that he was not awarded a DRP bonus. Id. Plaintiff argues that this illustrates discrimination as "Reed was the most outspoken at work relating to racial discrimination issues and he received the lowest valuation for his options." (Pl.'s Am. Br. at 34.) However, Plaintiff's argument assumes that the only factor used to determine the MRP and DRP bonuses was the amount of outstanding shares an employee had. As the Court explained above, numerous factors were considered in determining an award. See supra. Accordingly, the Court does not find that the bonus allocations are discriminatory on their face.
Plaintiff asserts that "contrary to Efficient's claims, the first year bonus had no relationship to performance and was not based on achievement . . ." (Pl.'s Am. Br. at 35.) To support this assertion, Plaintiff directs the Court to Hosek's deposition, where she explains that the MRP "was not really based on achievement." (Pl.'s App. at 1150.) However, the Court does not interpret this statement, as Plaintiff does, to mean that the calculation of the award was not based on achievement. In light of the other evidence establishing that Floyd took into account employee performance when determining an employee's MRP, the Court is not willing to find to the contrary based on this vague statement. Plaintiff also points to Stover's deposition to support this assertion. Id. at 1215. However, in his deposition, Stover indicates that an employee's performance did come into play in determining the MRP as Floyd considered an employee's Quartile ranking. Id. at 1213-1214.
B. Retaliation.
Defendant argues that it is entitled to summary judgment on Plaintiff's claim of retaliation because Plaintiff fails to establish a causal connection between the determination of his bonus entitlement and any protected activity. (Def.'s Reply at 18.) To establish a causal link, Plaintiff argues that he "went to the EEOC to file his charge of discrimination on March 5, 2001, and he then told Shelton he had filed it, and Shelton then told Brooks." (Pl.'s Am. Br. at 34.)
After Plaintiff went to the EEOC on March 5, 2001, he informed Shelton that he had filed a charge with the EEOC. (Pl.'s App. at 1012-1013.) Shelton guesses that she probably told Brooks in a private conversation within a week or two of that lunch, and maintains that she did not tell anyone else about Plaintiff's EEOC charge. Id. at 1013. The only evidence tacking down when Brooks first knew that Plaintiff filed an EEOC Charge is an e-mail Plaintiff sent Brooks on March 19, 2001 informing him that he had filed discrimination charges with the EEOC. (Pl.'s App. at 730.)
Efficient notified Plaintiff of his MRP and DRP bonuses on March 8, 2001. (Pl.'s App. at 1349.) Stover explained during his deposition that while he could not recall the exact date that he made changes to Lee's and Carter's retention bonuses, he believes it was before Plaintiff filed his EEOC charge. Id. at 1180. Plaintiff concludes that based on this close timing, he establishes a causal connection between his filing of an EEOC charge and his low bonus. (Pl.'s Am. Br. at 34.)
However, Stover did not recommend any changes to Floyd's calculation of Plaintiff's retention bonuses. (Pl.'s App. at 1179.) Furthermore, Plaintiff offers no evidence to show that Floyd, who determined the amount of the MRP and the DRP for Plaintiff, knew that he had filed an EEOC Charge. In the absence of such evidence, Plaintiff cannot raise a material question of fact regarding his claim of retaliation. See Manning v. Chevron Chem. Co. LLC, 332 F.3d 874, 883 n. 6 (5th Cir. 2003) (holding that "the plaintiff must produce at least some evidence that the decisionmakers had knowledge of his protected activity"). Therefore, Plaintiff's retaliation claim fails as a matter of law.
Plaintiff argues that "Stover admits that he may have made recommendations for changes in Reed's retention bonus program after Reed went to the EEOC." (Pl.'s Am. Br. at 35.) However, this mischaracterizes Stover's testimony. While Stover states that he could have made the changes to Carter and Lee's retention bonuses after Plaintiff filed an EEOC charge, (Pl.'s App. at 1180), he maintains that he did not make any changes to Floyd's recommendation regarding Plaintiff's retention bonuses. Id. at 1179.
VIII. Plaintiff's Claim of Wrongful Termination.
Defendant argues that Plaintiff failed to exhaust his administrative remedies with respect to his Title VII discriminatory termination claims. (Def.'s Mot. Summ. J. at 41.) Specifically, Defendant points to the fact that Plaintiff's May 7, 2001 EEOC charges does not allege — and could not allege — that his termination on July 23, 2001 was discriminatory. (Def.'s App. at 288.) However, as Plaintiff points out, "a judicial complaint filed pursuant to Title VII may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission." Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994). In his Amended Brief, Plaintiff cites to EEOC Investigator Garrett's statement explaining that "the Commission is currently awaiting information concerning the lay-off that occurred on July 23, 2001." (Pl.'s Am. Br. at 37.) However, the Court could not find this evidence in the summary judgment record. Nevertheless, the Court will assume that the summary judgment record contains this evidence, and will proceed to determine Plaintiff's Title VII discriminatory termination claims.
A. Discrimination.
The Court assumes, as did Defendant, that Plaintiff can establish a prima facie case of discrimination for wrongful termination. (Pl.'s Mot. Summ. J. at 43.) However, even with the benefit of this assumption, Plaintiff's discriminatory discharge claims fails as a matter of law.
Defendant claims that Plaintiff's termination stems from the elimination of his project as a result of an economic downturn in the telecommunications business. (Def.'s Mot. Summ. J. at 43.) Since Defendant proffered a legitimate, non-discriminatory reason for Plaintiff's discharge, the burden shifts back to Plaintiff to prove that this proffered reason is really a pretext for unlawful discrimination.
To establish pretext, Plaintiff first alleges that at his termination meeting, Stover informed him that he was not being terminated "for cause," but "now, at summary judgment, Defendant is asserting in essence that his selection was for cause." (Pl.'s Am. Br. at 39.) Plaintiff fails to cite to the summary judgment record to support his belief that Defendant fired Plaintiff for cause.
Plaintiff next attempts to establish pretext by arguing that Halle's ranking process prior to the layoffs was "wholly subjective" in that "there were little to no ranking guidelines provided to the ranking officials; only vague and generic statements such as considering past performance and future contributions were given." (Pl.'s Am. Br. at 39.) Despite Plaintiff's arguments to the contrary, the factors that Stover, Reynolds, and Halle used to stack rank their employees are not "wholly subjective." After reviewing Efficient's projects and applications, Stover decided to eliminate the project which Plaintiff worked on due to financial reasons. (Def.'s App. at 738-739.) Plaintiff states that after his demotion, he was responsible for customer support and the CRM project, and the summary judgment evidence reveals that the CRM and RMA Oracle projects were the only ones Efficient chose to discontinue. (Pl.'s App. at 1347; Def.'s App. at 468, 739.) Plaintiff claims, without citing any evidence in support, that the RMA project continued after his termination. (Pl.'s App. at 41.) In his Affidavit, Stover clarifies that Efficient retained the RMA Scan Application project, but after reviewing the project, Stegmair concluded that the scan application's hardware was inoperable and the scanning gun lacked a power supply. (Def.'s App. at 739.)
Plaintiff puts a great deal of emphasis on Halle's alleged use of Quartile rankings in arguing his discriminatory discharge claim. (Pl.'s Am. Br. at 40.) However, Halle adamantly denies using Quartile ranking or performance reviews at all in making his stack ranking. (Def.'s App. at 480, 492-496, 499.) Halle explains that he started to include a Quartile ranking in his stack ranking, but did not understand it. After discussing Quartile ranking with Brooks, HR decided not to utilize the Quartile ranking in making stack rankings, because employees who had not been there a year had not had an annual review or Quartile ranking. Id. at 148-149. A review of the stack ranking chart reveals that the employees with the lowest rank had Quartile rankings of one. Id. at 747. Halle cannot explain the discrepancy between his denial of using Quartile rankings and their existence in the stack ranking chart. Id. at 499. Plaintiff argues that "the evidence indicates that the ranking officials decided who they wanted to eliminate, assigned those individuals with low Quartile ranking, and simply placed the employees in an order so as to ensure that the employees they wanted to eliminate, were at the bottom of the ranking." (Pl.'s Am. Br. at 40.) However, Plaintiff fails to cite to any evidence to support such arguments. However, the use of Quartile ranking does not in and of itself establish pretext.
Plaintiff argues "the fact that the three African-American employees in the IT department were also laid off, while as to all of them, less qualified and experienced Caucasian employees were retained, also indicates a blatant racism extant at Efficient as well as pretext." (Pl.'s Am. Br. 42.) The Court has already addressed this argument, and found that it was without merit. See supra. Plaintiff claims that he "and other African American employees laid off, had significantly more experience than Mr. Stegmair on the RMA project," and "at the time of the layoff Reed was also qualified to work on the Fiscal Year End project now being headed by Chuck Kennedy, a Caucasian subordinate of Reed." (Pl.'s Am. Br. at 41.) However, the only evidence Plaintiff offers to support his claims is his conclusory Affidavit. (Pl.'s App. at 1357.) In the absence of any other evidence supporting Plaintiff's claim, conclusory assertions will not establish pretext.
Plaintiff also claims that co-workers complained about Stegmair's demeanor and performance. (Pl.'s App. at 25.) However, the summary judgment record includes evidence of Plaintiff's co-workers' dissatisfaction with his job performance, and thus, this alone will not raise a material question of fact with respect to pretext. Plaintiff also makes allegations without citing to summary judgment evidence, such as "Defendant's own witnesses indicate that the ranking official (Halle) had barely supervised Reed for a month prior to the ranking." (Pl.'s Am. Br. at 39.) Aside from the fact that Plaintiff failed to present evidence to support his allegation, the Court finds this argument irrelevant.
Plaintiff argues that he had more experience than others retained in the lay off, who are outside the protected class, and that he "possessed a technical prowess that was unmatched by either Kerry Stover or Stephen Halle." (Pl.'s Am. Br. at 40-41.) However, the Court found above that Plaintiff was not clearly better qualified than Stover or Halle, and thus, his assertion that he possesses a technical prowess unmatched by Stover or Halle will not establish pretext. See supra. Additionally, Plaintiff does not show that Stover or Halle were similarly situated in that their job duties were eliminated.
The Court finds that none of Plaintiff's proffered evidence or arguments will save him from summary judgment on his discriminatory discharge claim.
B. Retaliation.
The Court assumes Plaintiff can establish a prima facie case of retaliatory termination. To establish pretext, Plaintiff notes that several of Reed's subordinates attest to his skill, competency, and thorough knowledge of Oracle based applications. (Pl.'s Am. Br. at 49.) Plaintiff misses the point. Defendant's legitimate, non-discriminatory reason for discharging Plaintiff was that his project was eliminated, and accordingly, Plaintiff must provide evidence to show that either Defendant's reason is untrue or Plaintiff's race was a motivating factor in Defendant's decision to terminate him. Therefore, testimonials to his skill and competency are irrelevant.
Plaintiff also points to Bruce Brown's letter to Plaintiff as pretext of discrimination. (Pl.'s Am. Br. at 49.) "So too, the strong evidence of animus in President Brown's written response to Reed's early July 2001 complaint of discrimination, including his admonishment of Reed and the limitations placed upon Reed regarding any rebuttal to Brown's response and any potentials future complaints of discrimination." Id. In the absence of any citation to the summary judgment record, the Court assumes that Plaintiff is referring to Bruce Brown's sentence in his letter requesting Plaintiff to follow the appropriate chain of command in the future. (Pl.'s App. at 332.)
From this point forward, you will be expected to follow the appropriate chain of command in connection with expressing concerns about your employment situation. That is, you must communicate your concerns to your direct supervisor, Kerry Stover, or to the Vice President of Human Resources, Jack Brooks. You should not attempt to circumvent this chain of command by writing directly to me or to the company's chairman, Mark Floyd. If you wish for a matter to be escalated to me, Mr. Floyd or some person outside your chain of command, you should express your desires to Mr. Stover or Mr. Brooks and they will apprise the appropriate persons of your wishes. Id.
Plaintiff also points to the following comments made by Hosek:
I was completely shocked that Tony would actually believe that he was being discriminated against and that I felt personally offended that he was making such a charge against our company knowing full well that I had done everything to help him, including hiring him and giving him really good advice in improving his situation, and that I felt like it was a frivolous case, and he was just going after the money. (Pl.'s App. at 1139.)
Again, Plaintiff fails to cite to the summary judgment appendix.
Plaintiff argues that Brown's and Hosek's remarks are probative of discriminatory intent based on Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003). In Palasota, the Fifth Circuit held that "the district court . . . erred by discounting age-related remarks attributed to [the National Sales Manager's and President's] `stray remarks.'" Id. at 577. Such age-related comments included a letter from the President stating "he wanted `race horses' and not `plow horses,'" the National Sales Manager announcing at a sales meeting that there was "graying of the sales force," and a member of management stating at a sales executive meeting "Hey, fellows, let's face it, we've got an ageing, graying sales force out there . . ." Id. at 573.
In contrast to Palasota, there is not a single race-related remark regarding Plaintiff contained in Brown's letter. Brown is simply directing Plaintiff to follow his chain of command when making a complaint. The letter is not evidence of an intent to retaliate against Plaintiff for having made complaints about racial discrimination.
With respect to Hosek's statement, she was not the decisionmaker in Plaintiff's termination. Hosek's comments do not constitute evidence as to the intent of the decisionmakers with respect to Plaintiff's termination. Therefore, Plaintiff's argument is without merit.
Since Plaintiff failed to provide evidence indicating that Defendant's reduction in workforce explanation was false, or that Plaintiff's race was a motivating factor in Defendant's decision to terminate Plaintiff, his retaliatory termination claim fails as a matter of law.
IX. Conclusion.
For the reasons set forth above, the Court GRANTS Defendant's Motion for Summary Judgment.
IT IS SO ORDERED.