Opinion
Civil Action No: SA-02-CA-947-XR
November 6, 2003
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (Docket no. 25). Plaintiff Suchitra Groves sues her former employer, Bank of America, for national origin and sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. For the reasons stated below, the Court DENIES the Defendant's motion.
Facts and Procedural Background
The Plaintiff's date of birth is February 6, 1948. She began her employment with Bank of America (hereinafter "BOA") on or about July of 1999. Prior to that time she was employed by a number of different financial institutions. While employed by BOA, Plaintiff was employed as a supervisor of accounts payable and travel in the bank's military banking overseas division. Plaintiff was employed in BOA's San Antonio, Texas location.
In 1995, the United States Department of Defense ("DOD") awarded NationsBank (later acquired by or merged with BOA) a contract to provide certain banking services to military personnel assigned overseas. During her employment with BOA, Plaintiff had limited access to cost information associated with the contract. In 2000, DOD re-bid this contract. BOA and National City Bank of Indiana ("National City") both submitted bids. The DOD initially awarded the contract to National City. BOA lodged a protest of the award to National City. Plaintiff was not involved in either the bidding or protest of the contract. The United States General Accounting Office (GAO) announced that it granted BOA's protest on its Internet web site on or about July 26, 2001. On July 30, 2001, a BOA manager, Larry Meek, called an internal meeting and informed about 100 BOA employees, including Plaintiff, that the GAO granted BOA's protest on the contract. After leaving this BOA meeting, Plaintiff notified twenty non-BOA personnel of the GAO decision. Specifically, Plaintiff sent an email to a current National City employee and various former BOA and National City employees. Eventually the email was forwarded by one of the recipients to James Fitzpatrick, a National City Bank executive who complained to BOA manager Larry Meek.
The email stated: "Just wanted to share today news with you guys. I just got out the meeting, beleive [sic] it or not BOA won the protest; unbeleivable [sic] huh! I'm shocked about the news but glad for the associates here in SA. They will have a job for whatever long it takes to sort this out. I don't have much detail, I know we have to do another RFP. I will keep you post. . .".
"Activities like this need to cease and desist immediately."
On August 1, 2001, Plaintiff was terminated from her employment with BOA because she allegedly sent "confidential" communications to non-BOA personnel in violation of BOA's Code of Ethics policy. The individual who made the decision to terminate the Plaintiff, Michael Smith, also was one of the decision-makers with regard to the decision to hire the Plaintiff at NationsBank. Prior to this incident, Plaintiff at all times was considered a satisfactory employee and had not previously voiced any complaints about how she was treated.
The policy, in part, states: `You must avoid all circumstances that could produce conflicts or the appearance of conflicts between your personal interests and those of the Corporation. . . . You must respect the confidentiality of information obtained in the course of business . . . The appearance of a conflict of interest can often be as detrimental as a conflict itself. Associates should exercise sound judgment before committing to any activity or participating in any transaction that could potentially be a conflict. . . . Nonpublic information regarding Bank of America should be conveyed to others only when there is a reasonable need to know that furthers a lawful and legitimate purpose of Bank of America, with the express understanding that the information is confidential and is to be used solely for the limited purpose for which it was received and given. Unless otherwise instructed, associates should treat internal Bank of America activities and plans as confidential, to be disseminated within the internal structure of Bank of America only on a need to know basis." The policy warns employees that they maybe discharged from their employment for any violation.
Plaintiff thereafter filed a charge of discrimination with the Equal Employment Opportunity Commission on January 7, 2002 alleging national origin, sex and age discrimination.
On September 25, 2002, Plaintiff filed her Original Complaint alleging that other BOA employees engaged in the same behavior (communicating the GAO decision to non-BOA personnel), but were not discharged and that BOA discriminated against her because of her national origin (Asian), age and sex.
Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. CelotexCorp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required 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 any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322. 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 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152(2000).
Analysis Fact issue exists as to whether similarly situated employees were treated more favorably than Plaintiff
Defendant asserts that it is entitled to summary judgment with regard to Plaintiff's Title VII and ADEA claims because no other similarly situated employees were treated differently. Defendant admits that other BOA employees notified family members of the GAO decision, but contend that Plaintiff s email sent to 20 individuals, including one current and former employees of National City was significantly different. Defendant contends that Plaintiff was employed as a supervisor in BOA's Overseas Military Banking department. In that capacity she attended various meetings where the DOD contract was discussed. Further, Defendant argues that Plaintiff sent her email to a BOA competitor within minutes of an internal company meeting. Defendant further states that it was concerned by Plaintiff's closing comment that she would keep these non-BOA employees posted. In addition, BOA alleges that the government bidding process required both banks to maintain "procurement integrity" to avoid the appearance that the banks were not sharing information inappropriately.
Plaintiff vigorously argues that she did not disclose any confidential information. She asserts that the GAO published its decision regarding the bid protest on July 26, 2001 via its official web site. Further, the group meeting held by Larry Meek disclosing the GAO decision was made in an "open" area of the bank's offices, the meeting was attended by at least 100 people, and no one stated that the contents being disclosed were confidential.
She further argues that Frank Chunderlik, a senior vice-president in BOA's Norfolk, Virginia government card department is a "similarly situated" employee who engaged in the same conduct, but was not discharged. On July 26, 2001, Mr. Chunderlik posted a message on a non-BOA web site. On July 31, 2001, Mr. Chunderlik posted a second message on the non-BOA web site about the GAO's decision. Chunderlik learned of his information from internal BOA sources (including a company attorney). BOA retorts that Chunderlik was not involved in the bidding process, was not invited to attend the June 30 meeting called by Larry Meek, and that no one at BOA was aware of Chunderlik's posting prior to the decision to discharge the Plaintiff. Accordingly, BOA argues that Chunderlik was not "similarly situated" and did not engage in conduct "nearly identical" to Plaintiff.
It is undisputed that Mr. Chunderlik is a white, male employee. His date of birth is November 2, 1954.
The message posted on a web site for "military bankers" atwww.milbankers.com stated: "I don't know if anyone is really interested in a Military Bank Contract Award Update, but here it is anyway. As many of you know, the Overseas Military Banking Contract was re-competed again this year. The two die-hards, National City Bank and Bank of America were the only two bidders for the Program. After the dust cleared, National City had recaptured the prize that it had lost in 1996. But not so fast, sez [sic] Bank of America, who filed a bid protest. The Judge put a "gag order" on the proceedings so any news has been sparse. The arguments have been made and the briefs have been filed. A decision is due on July 31st. Stay tuned".
The web posting stated: "The GAO Board of Contract Appeals has sustained Bank of America's protest of the Overseas Military Banking Contract award to National City Bank. It is assumed that there will be a lengthy meeting and conference with both banks and then a request for Best and Final Offers. Stay tuned."
Plaintiff parries that the same Code of Conduct also applied to Chunderlik, and that even if BOA was not aware of Chunderlik's messages prior to discharging the Plaintiff, it nevertheless became aware of his postings thereafter and still kept the white, male and slightly younger employee in its employ.
Plaintiff also responds that at least four other employees, including two of her supervisors (Larry Meek and Mike Smith) disclosed to non-BOA personnel the GAO decision. BOA argues that these four other employees are not "similarly situated" because they only told immediate family members.
Under the McDonnell Douglas test, a prima facie case of termination-based sex, age or national origin discrimination is established by the plaintiff once she proves that: (1) she is a member of a protected class; (2) that she was qualified for a position that she lost; (3) that she suffered an adverse employment action; and (4) the employer replaced her with a person not in her protected class. See generally Okoye v. Univ. of Tex. Houston Health Sd. Ctr., 245 F.3d 507, 510 (5th Cir. 2001). In some situations, the fourth prong of the analysis has been satisfied where employees outside the plaintiff's protected class were retained or treated differently under circumstances nearly identical to that of the plaintiff. See Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999); see also Martin v. Kroger Co., 65 F. Supp.2d 516, 543 (S.D. Tex. 1999), aff'd, 224 F.3d 765 (5th Cir. 2000).
In other words, "[w]hen a supervisor of one race treats employees of the same race more favorably than similarly situated employees of another race under circumstances that are essentially identical, a presumption of discriminatory intent is raised." Ramirez v. Landry's Seafood Inn Oyster Bar, 280 F.3d 576, 578 (5th Cir. 2002) (quoting Barnes v. Yellow Freight Sys., 778 F.2d 1096, 1101 (5th Cir. 1985)). The plaintiff must show that the employer gave "preferential treatment" to another employee under nearly identical circumstances, that is, that the misconduct for which the plaintiff was discharged was nearly identical to that engaged in by other employees. Okoye v. Univ. of Tex. Houston Health Sd. Ctr., 245 F.3d at 514.
Some courts in this Circuit have stated that the "nearly identical" standard is a stringent standard. See Coleman v. Exxon Chemical Corp., 162 F. Supp.2d 593 (S.D. Tex. 2001). "Employees with different responsibilities, different supervisors, different capabilities, different work rule violations or different disciplinary records are not considered to be `nearly identical.'" Id. at 608 (citing Okoye, 245 F.3d at 514-15 and cases cited therein).
Although Plaintiff and Chunderlik had different responsibilities, different supervisors and worked in different locations, apparently they were both satisfactory employees who arguably violated the same policy. BOA's concerns that an employee had been or would in the future disclose facts regarding the contract remain valid as to both Plaintiff and Chunderlik. Indeed, Chunderlik told his non-BOA audience to "stay tuned." Further, BOA's concern regarding "procurement integrity" applied as to both employees. Both employees were managers. Finally, there is a fact dispute as to how much involvement and knowledge, if any, Plaintiff had regarding the bidding process. BOA attempts to distinguish the Plaintiff's act from the actions of Chunderlik and the three or four other employees stating that none of the other employees sent their communication to its competitor and no one lodged a complaint regarding any of their communications. Although that is a distinction, the Plaintiff and Chunderlik arguably did the same act-sent information learned through internal company sources to non-BOA employees. Accordingly, the Court finds that there is a factual dispute as to whether the other employees were "similarly situated" and engaged in conduct that was "nearly identical." Defendant's motion for summary judgment on this point is DENIED.
Has Plaintiff established that BOA's articulated reason is a mere pretext for unlawful discrimination?
Defendant argues that even if Plaintiff has established a prima facie case of age, national origin and sex discrimination, it has nevertheless articulated a legitimate, non-discriminatory reason for discharging the Plaintiff — she sent an email to a competitor and BOA concluded that her act violated its Code of Ethics. Further, BOA argues that Plaintiff's act (sending the email transmission within minutes of learning the underlying facts in an internal company meeting) caused it to lose trust and confidence in her. Defendant argues that Plaintiff fails to establish that its articulated reason was a mere pretext for age, national origin and sex discrimination.
Relying upon Price v. Federal Express Corp., 283 F.3d 715 (5th Cir. 2002) and Vadie v. Miss. State Univ., 218 F.3d 365 (5th Cir. 2000), cert. denied, 531 U.S. 1113 (2001), Defendant argues that Plaintiff must produce "evidence [which] taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age [or sex or national origin] was a determinative factor in the actions of which the plaintiff complains." Price, 283 F.3d 17 722 fn. 4. Defendant argues that Plaintiff only offers conclusory statements and her subjective belief to support her claims.
Conclusory statements and subjective belief will not create a material fact issue regarding discrimination. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002).
Under Reeves, a plaintiff is not required to present additional independent evidence of discrimination. See Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir. 2001) (reiterating that no "additional, independent evidence of discrimination" is required). However, Reeves does not relieve a plaintiff of his burden to present evidence that will permit a rational fact finder to infer intentional discrimination. Reeves, 530 U.S. at 153 (stating that the "ultimate question" in cases alleging employment discrimination "is whether the plaintiff was the victim of intentional discrimination").
Plaintiff responds that a fact issue exists as to whether the Plaintiff violated the company's Code of Ethics. She argues that she did not publish any confidential information, did not violate any conflict of interest provision, and did not jeopardize in any fashion the integrity of the procurement process. Also relying upon Price v. Federal Express Corp., Plaintiff states that "evidence of differing treatment among similarly situated people can support a finding of discriminatory intent." Price v. Federal Express Corp., 283 F.3d at 722 fn. 6.
If the plaintiff can show that the employer's asserted justification is false, this showing, coupled with a prima facie case, may permit the trier of fact to conclude that the employer discriminated against the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). However, such a showing will not always be enough to prevent summary judgment, such as when a plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, yet "no rational fact finder could conclude that the action was discriminatory." Price v. Fed. Express Corp., 283 F.3d at 720 (quoting Reeves, 530 U.S. at 148). Whether summary judgment is appropriate depends on numerous factors, including "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Id. (quoting Reeves, 530 U.S. at 148-49).
The Court is mindful that Title VII and the ADEA are not intended to "protect against unfair or unwise business decisions." Nor are these statutes intended to "transform the courts into personnel managers." Further, the Court agrees with the Defendant that the relevant inquiry is not whether BOA was correct in interpreting its Code of Ethics policy or justified in discharging the Plaintiff. Rather, the relevant inquiry is whether BOA was motivated by discriminatory animus. Further, the Court agrees with the Defendant that the vast majority of the underlying facts in this case are undisputed. Plaintiff attended an internal company meeting, she immediately thereafter sent an email to 20 non-BOA employees repeating what she heard, a bank competitor received the email and lodged a complaint. Defendant is further correct that Plaintiff is unable to establish the falsity of any of the above points. Given that Plaintiff was an at-will employee, BOA could discharge her at its pleasure. However, because there arguably were other "similarly situated" employees engaged in "nearly identical" behavior who were not discharged, Plaintiff has produced evidence which taken as a whole creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and "creates a reasonable inference that age [or sex or national origin] was a determinative factor in the actions of which the plaintiff complains." At this summary judgment stage, giving credence to the evidence favoring the nonmovant, the Court will deny Defendant's motion for summary judgment on this point as well. See Ramirez v. Landry's Seafood Inn Oyster Bar, 280 F.3d at 578 ("Viewing the evidence in the light most favorable to Ramirez, we find that Ramirez has raised a material issue of fact whether a similarly situated white employee was treated more leniently than she.").
Nieto v. LH Packing Co., 108 F.3d 621, 624 (5th Cir. 1997).
Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993) ("The ADEA was not intended to be a vehicle for judicial second-guessing of business decisions, nor was it intended to transform the courts into personnel managers")
Conclusion
The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (Docket no. 25) is DENIED.