Opinion
Civil Action No. 3:00-CV-1638-G
July 16, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendant Credit Lyonnais for summary judgment. For the following reasons, the motion is granted.
I. BACKGROUND
Credit Lyonnais is a commercial lending institution based in Paris, France. Oral Deposition of Samuel L. Hill ("Hill Deposition") at 13, 28, located in Appendix in Support of Defendant Credit Lyonnais' Motion for Summary Judgment ("Defendant's Appendix") at 58, 60, 62. Credit Lyonnais has an office in Dallas, Texas. Id. at 62.
During August 1998, the plaintiff Misty Phillips ("Phillips") began working for Credit Lyonnais's Dallas office as an executive assistant for Sam Hill ("Hill"), the office's regional manager. Affidavit of Misty Phillips ("Phillips Affidavit") ¶ 2, located in Appendix in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Plaintiff's Appendix") at 3. Hill advised Phillips that her position would "evolve" and instructed Phillips that until the company hired a receptionist, she would be acting as a receptionist in addition to her duties as an administrative assistant. Id.
Dissatisfied with Phillips's job performance, Hill met with Phillips during November 1998 and December 1998. Affidavit of Samuel L. Hill ("Hill Affidavit") ¶ 4, located in Defendant's Appendix at 140-41. Phillips attributed her lack of performance to "personal problems." Id. During January 1999, Phillips's job performance did not improve. Id. ¶ 6. As a result, Hill prepared a memorandum to Phillips in which he outlined her job responsibilities. Id.; see also id., Exhibit 1, Memorandum from Sam Hill to Misty Phillips dated January 25, 1999, located in Defendant's Appendix at 147. On January 29, 1999, Hill and Phillips met to discuss the memorandum. Id. ¶ 6. After this meeting, however, Phillips's job performance did not improve. Id. ¶ 8.
During February 1999, Hill conferred with John Quinn ("Quinn"), Credit Lyonnais's senior vice president and division manager of resources, at Credit Lyonnais's triannual meeting in New York. Id. ¶ 7; see also Affidavit of John J. Quinn ("Quinn Affidavit") ¶¶ 2-3, located in Defendant's Appendix at 171-72. Hill informed Quinn that he was dissatisfied with Phillips's job performance. Hill Affidavit ¶ 7; Quinn Affidavit ¶ 3. Based on Hill's statements during this meeting, Quinn noted on his employee chart of the Dallas office that Phillips's work performance was "erratic." Quinn Affidavit ¶ 3; see also id., Exhibit 1, Gestion February 24, 1999 Meeting Chart re. Dallas Branch, located in Defendant's Appendix at 176. Quinn advised Hill that Phillips should be "closely watched." Quinn Affidavit ¶ 3.
On March 8, 1999, Hill and Phillips met to "discuss her lack of progress." Hill Affidavit ¶ 8. Hill claims that Phillips agreed with his assessment of her poor performance and cried upon hearing the criticism. Id. In a note to Phillips dated March 23, 1999, Hill instructed Phillips to provide him with a weekly report of the work which she had completed. Id. ¶ 9; see also id., Exhibit 4, Note from S. Hill to M.P. dated March 23, 1999 ("Note"), located in Defendant's Appendix at 151. Hill had never before required an employee to produce such a report. Hill Affidavit ¶ 9. The note also reminded Phillips that Hill had not yet received the December 31, 1998 Operating Income Reports for Credit Lyonnais's Dallas office. Id.; see also id., Note.
On April 16, 1999, Hill sent Phillips a message via electronic mail ("e-mail"). Hill Affidavit ¶ 10; see also id., Exhibit 5, e-mail from Samuel Hill to Misty Phillips dated April 16, 1999 ("e-mail dated April 16, 1999"), located in Defendant's Appendix at 152. The e-mail stated the following:
Just to remind and to reiterate some points we have discussed.
— I asked you to summarize weekly the key projects/tasks you have completed or spent significant time on. I want this every week, on Friday afternoon. You only did it for one partial week. I am serious about this. After four or five weeks, we can assess whether to continue.
— I would also like you to keep track of your hours and then discuss that with me each Friday. This relates to our discussion about attendance and my flexibility policy.
— I also want to see and discuss your method of organizing your ongoing "to do" list.
— I know this may seem like a lot of monitoring, but until I am comfortable with your level of organization and consistency of production, it is necessary.
— I hope that we can follow this plan with a positive and constructive idea.
Thanks, Sam
e-mail dated April 16, 1999.
In late April or early May 1999, Phillips learned that she was pregnant. Phillips Affidavit ¶ 7. A few days later, she told co-worker Greg Wilson ("Wilson") that she was pregnant. Id. On or about June 2, 1999, Phillips informed Michelle Lee ("Lee"), a Credit Lyonnais benefits administrator, of her pregnancy. Id.; see also Affidavit of Michelle I. Lee ("Lee Affidavit") ¶ 2, located in Defendant's Appendix at 195-96. Phone records kept by Lee reveal that Phillips did call Lee on June 2, 1999 to inquire about maternity benefits. Lee Affidavit ¶ 2; see also id., Exhibit 1, Phone Log Entry dated June 2, 1999, located in Defendant's Appendix at 198. Lee cannot recall, however, whether Phillips informed Lee that Phillips was pregnant. Lee Affidavit ¶ 2. Lee did not notify anyone at Credit Lyonnais that Phillips had called her regarding maternity benefits or that Phillips was pregnant. Id. ¶ 3.
On May 3, 1999, Hill met with Phillips because her job performance had not improved. Hill Affidavit ¶ 11. During this meeting, Hill cautioned Phillips that her job performance "was still very questionable and that she was still not completing the production reports for tracking her daily and weekly contributions to the office." Id. Phillips failed to respond to Hill's warning. Id. On May 21, 1999, Hill sent Phillips an e-mail in which he observed, "You owe me at least 4-5 weeks of detail on what you have accomplished; I was serious about this and you seem to be blowing it off!?" Id., Exhibit 7, e-mail from Samuel Hill to Misty Phillips dated May 21, 1999, located in Defendant's Appendix at 154; see also Hill Affidavit ¶ 11.
By mid-June 1999, Hill decided to terminate Phillips's employment. Hill Affidavit ¶ 13. During the week of June 14, 1999, Hill attended a triannual meeting in New York City. Id. At that meeting, Hill informed Quinn that he intended to terminate Phillips's employment. Id.; Quinn Affidavit ¶ 4. Quinn asked Hill to follow up with Ellen Haas ("Haas"), a Credit Lyonnais vice president and human resources generalist, so that Credit Lyonnais's New York office would have a record of Phillips's job performance and the basis for Hill's decision to terminate Phillips's employment. Hill Affidavit ¶ 13; Quinn Affidavit ¶ 4; Affidavit of Ellen Haas ("Haas Affidavit") ¶ 2, located in Defendant's Appendix at 180-81. After returning to Dallas, Haas asked Hill to send to her documentation which supported his decision to terminate Phillips's employment. Hill Affidavit ¶ 13; Haas Affidavit ¶ 2.
On June 24, 1999, Hill sent the requested documentation to Haas via facsimile. Hill Affidavit ¶ 13; see also id., Exhibit 9, Facsimile Transmittal from S. Hill to Ellen Haas dated June 24, 1999, located in Defendant's Appendix at 161-67; Haas Affidavit ¶ 2. At Haas's request, Hill followed up the facsimile with a written summary which supported his decision to terminate Phillips's employment. Hill Affidavit ¶ 13; see also id., Exhibit 10, Memorandum from Sam Hill to Ellen Haas dated July 16, 1999, located in Defendant's Appendix at 168-70; Haas Affidavit ¶ 2. In that summary, Hill provided a chronological explanation of his frustration with Phillips's poor job performance. See Memorandum dated July 16, 1999. He also noted the following:
I do not feel that I could have worked any harder to help Misty understand the duties and needs for her position. I have also exercised the maximum level of patience. We must move on. Her lack of performance is impacting the entire office. Please let me know as soon as possible your suggestions on how to best complete this termination.
Id. (emphasis in original).
By the end of June 1999, Hill was dissatisfied with Phillips's frequent absenteeism. Hill Affidavit ¶ 12. Hill maintains that by the end of June 1999, Phillips had missed work due to two personal days, eleven sick days, and four vacation days. Id.; see also in., Exhibit 8, Calendar of Samuel Hill and 1999 Employee Absences, located in Defendant's Appendix at 155-60. Phillips does not dispute the accuracy of these missed worked days. Phillips Deposition at 142-43, located in Defendant's Appendix at 48-49.
Wilson worked as a part-time receptionist and clerk and shared some receptionist duties with Phillips during her tenure at Credit Lyonnais. Phillips Affidavit ¶ 4. He attested that Phillips was an unsatisfactory employee who did not complete her work and frequently was absent and tardy. Affidavit of Gregory D. Wilson ¶¶ 2-4, located in Defendant's Appendix at 192-94.
Hill planned to notify Phillips that her employment was terminated at some point before the end of the week beginning Monday, July 19, 1999. Hill Affidavit ¶ 14. Hill maintains that Phillips came to work on July 19, but called in sick on July 20 and July 21, 1999. Id. Phillips originally claimed that on July 21, 1999, Phillips called Hill, who was in Houston, on his cellular telephone and told him that she was pregnant and that her baby was due in January 2000. Phillips Affidavit ¶ 8; Oral Deposition of Misty Phillips ("Phillips Deposition") at 68-70, located in Defendant's Appendix at 1, 14-16. Phillips later declared that the phone conversation with Hill took place on July 22, 1999. Declaration of Misty Phillips ¶ 5, located in Plaintiff's Supplemental Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment.
Phillips maintains that she did not go to work July 21, 1999 through July 23, 1999 due to illness. Phillips Affidavit ¶ 8; Phillips Deposition at 69. According to Hill, on July 22, 1999, Phillips called the office to say that she would not be in the office for the rest of the week and stated that she would take July 22 and July 23, 1999 as vacation days since she already had an excessive number of sick days. Hill Affidavit ¶ 14. Phillips was not wearing maternity clothes to the office nor was she visibly pregnant during July of 1999. Phillips Deposition at 67-68.
After a scheduled two week vacation, on August 9, 1999, Phillips returned to the office, and Hill informed her that he had decided to terminate her employment "due to her poor performance." Hill Affidavit ¶ 15; see also id. ¶ 14. Hill did not mention Phillips's pregnancy during that meeting or at any other time during Phillips's employment at Credit Lyonnais. Phillips Deposition at 110. Hill denies that Phillips revealed her pregnancy to him and claims that he was not aware of her pregnancy until after the decision was made to terminate her employment. Hill Deposition at 117-18, Defendant's Appendix at 120-21; Defendant Credit Lyonnais' Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment ("Reply") at 1-2.
In a memorandum to Quinn dated August 10, 1999, Haas stated that Phillips had called her on that day regarding the termination of Phillips's employment. Memorandum from Ellen Haas to John J. Quinn dated August 10, 2000, located in Plaintiff's Appendix at 134. In that phone conversation with Haas, Phillips stated that the termination was a "complete surprise[,]" that she wanted a severance package which included medical benefits until her baby was born, and that "she was going to take legal action since she was terminated while she was pregnant." Id.
Phillips claims that she was a good employee who had been given a discretionary bonus in 1999 and an increased workload. Plaintiff's Response in Support of its [sic] Response to Defendant's Motion for Summary Judgment ("Response") at 3; Phillips Affidavit ¶ 6. Credit Lyonnais and Hill contend that Phillips had erratic work performance and a poor attendance record. See generally Defendant Credit Lyonnais' Brief in Support of its Motion for Summary Judgment ("Motion") at 2-12.
Shortly after being her employment was terminated, Phillips filed formal complaints with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights. Phillips received her right to sue letters from the EEOC on June 15, 2000, and from the Texas Commission on Human Rights on June 29, 2000. See Notice of Removal, Exhibit 1, Plaintiff's Original Petition and Jury Demand ("Petition") ¶ 16.
Phillips originally filed this lawsuit in the 192nd Judicial District Court of Dallas County, Texas, alleging that Credit Lyonnais violated the Pregnancy Discrimination Act of 1978 ("PDA"), 42 U.S.C. § 2000e(k), and the Texas Commission on Human Rights Act of 1983 ("TCHRA"), Texas Labor Code § 21.001 et seq. See Petition ¶¶ 7-9. On July 5, 2000, Credit Lyonnais was served with the petition. Notice of Removal ¶ 1. On July 28, 2000, Credit Lyonnais timely removed the case to this court. On November 14, 2001, Credit Lyonnais moved for summary judgment on Phillips's claims. On January 22, 2002, Judge Joe Kendall issued a one line denial of the motion. On January 24, 2002, following Judge Kendall's resignation from the bench, the case was transferred to the docket of the undersigned judge. On January 28, 2002, Credit Lyonnais filed a motion for reconsideration of Judge Kendall's denial of its motion for summary judgment. On March 18, 2002, the undersigned granted Credit Lyonnais's motion for reconsideration and vacated Judge Kendall's order denying the motion for summary judgment. The court now reconsiders the motion for summary judgment on the merits.
Cause Number 00-04868-K.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56 (c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the opponent must do more than simply show some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, she must show that the evidence is sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 249. All of the evidence must be viewed, however, in a light most favorable to the motion's opponent. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Summary judgment is properly entered against a party if after adequate time for discovery, she fails to establish the existence of an element essential to his case and as to which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
B. PDA Claim
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). The PDA amended Title VII by prohibiting discrimination on the basis of pregnancy. Stout v. Baxter Healthcare Corporation, 282 F.3d 856, 859 (5th Cir. 2002). Specifically, Title VII's definition of the terms "because of sex" and "on the basis of sex" was expanded to include "because of or on the basis of pregnancy, childbirth, or related medical conditions. . . ." 42 U.S.C. § 2000e(k); see also Stout, 282 F.3d at 859. With this amendment, Title VII's sex discrimination provisions provided that "women affected by pregnancy . . . shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. . . ." Id. "The PDA did not amend Title VII in any other way. Therefore, in analyzing a claim of pregnancy discrimination [the court applies] the same rules used for discrimination claims in general." Garcia v. Woman's Hospital of Texas, 97 F.3d 810, 812-13 (5th Cir. 1996); see also Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995) ("Pregnancy discrimination is discrimination on the basis of sex. . . .").
Since the record in this case contains no direct evidence of sex discrimination, a three-step analysis applies. See Hanchey v. Energas Company, 925 F.2d 96, 97 (5th Cir. 1990); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-11 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973).
"Direct evidence" in the employment discrimination context is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (citing Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861 (5th Cir. 1993)).
In the first step, Phillips must establish a prima facie case of discrimination by showing that: (1) she is a member of a protected group; (2) she was qualified for her position; (3) she was discharged; and (4) after her discharge, Credit Lyonnais filled her position with a person who is not a member of the protected group. See Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 254 (5th Cir. 1990) (citing Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir. 1979)). If Phillips produces proof of these elements, a presumption of discrimination arises. See Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993).
At the second step, Credit Lyonnais can rebut this presumption of discrimination by offering a legitimate, nondiscriminatory reason for Phillips's discharge. Id. If Credit Lyonnais satisfies this burden of production, the effect of Phillips's prima facie case dissolves, id., and the case proceeds to the third step of the analysis. At this third stage, the burden is on Phillips to produce evidence, sufficient to create a genuine issue of material fact, that the reason offered by Credit Lyonnais for her termination is a pretext for sex discrimination. Id.
1. Prima Facie Case
Credit Lyonnais contends that Phillips cannot establish a prima facie case of discrimination because she was not a member of a protected class, she was not qualified for her position, and that she cannot show that other similarly situated employees were treated differently. Motion at 1. The court will assume, for the purposes of this motion, however, that Phillips has established a prima facie case of pregnancy discrimination. The question then becomes whether Credit Lyonnais has offered a legitimate, nondiscriminatory reason for Phillips's discharge and whether Phillips can satisfy her pretext burden.
2. Nondiscriminatory Reason
Credit Lyonnais contends that it has established that Phillips was terminated for legitimate, non-discriminatory reasons. Id. The record clearly indicates that Hill tried on numerous occasions over a seven month period to "counsel" Phillips regarding her poor job performance. The undisputed evidence is, at a minimum, Phillips was given written documents which outlined her job duties and Hill's expectations. Credit Lyonnais has introduced evidence that Hill's termination of Phillips's employment was due to her poor job performance, including her sporadic attendance. Thus, Credit Lyonnais has produced a sufficient nondiscriminatory reason for its termination of Phillips's employment. See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997); Wright v. Southwest Bank, 648 F.2d 266, 267 (5th Cir. 1981).
To satisfy its burden of production, Credit Lyonnais must merely produce evidence which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. See St. Mary's, 509 U.S. at 507, 509 (at this stage of analysis, credibility determinations are not warranted as burden-of-production determination necessarily precedes credibility assessment stage); see also Dailey v. Johnson Johnson Consumer Products, Inc., 850 F. Supp. 549, 553 n. 2 (N.D. Tex. 1994) ("It is important to note that whether a defendant carries [its] burden of production involves no credibility assessment, `[f]or the burden-of-production determination necessarily precedes the credibility-assessment stage.'") (emphasis in original, quoting St. Mary's, 509 U.S. at 509), aff'd, 99 F.3d 1136 (5th Cir. 1996) (table); Thornton v. Neiman Marcus, 850 F. Supp. 538, 543 (N.D. Tex. 1994) ("The Court may not assess the credibility of the stated reason."). Accordingly, upon review of the motion, the response, and the evidence in the record, the court concludes that Credit Lyonnais has carried its burden of articulating a legitimate, nondiscriminatory reason for terminating Phillips's employment.
3. Pretext Burden
When the analysis has proceeded to this third step, Phillips — to avoid summary judgment — must produce evidence from which a reasonable factfinder could find that Credit Lyonnais's stated reason was not the true reason for the employment decision and that unlawful discrimination was. Bodenheimer, 5 F.3d at 957 (emphasis in original). Accord Moore v. Eli Lilly and Company, 802 F. Supp. 1468, 1471-74 (N.D. Tex. 1992), aff'd, 990 F.2d 812, 816 and n. 24 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1166 (5th Cir. 1993); see St. Mary's, 509 U.S. at 515-16. To show pretext, a plaintiff must do more than negate the defendant's proffered reasons for the employment decision. See Walton v. Bisco Industries, Inc., 119 F.3d 368, 371 (5th Cir. 1997).
In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc), the Fifth Circuit set forth the following standard regarding proof of pretext:
[A] jury issue will be presented and a plaintiff can avoid summary judgment . . . if the evidence 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 [the protected trait] was a determinative factor in the actions of which plaintiff complains. The employer, of course, will be entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory.
Id. at 994; see also Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181-83 (5th Cir. 1996) (quoting Rhodes standard and applying it in Title VII summary judgment context). "Rhodes makes clear that a plaintiff must present evidence sufficient to create a reasonable inference of discriminatory intent in order to avoid summary judgment." Grimes v. Texas Department of Mental Health and Mental Retardation, 102 F.3d 137, 141 (5th Cir. 1996); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 450 (5th Cir. 1996).
After reviewing Phillips's response to the motion for summary judgment, the court concludes that she has failed to raise a genuine issue of material fact that Credit Lyonnais's reason for discharging her is a mere pretext for pregnancy discrimination. Phillips attempts to demonstrate a causal connection between her pregnancy and her discharge, but the connection is too tenuous to demonstrate a discriminatory animus.
Phillips claims that a discretionary bonus she received in 1999 and her workload "increase" during December 1998 and January 1999 indicate that she was a satisfactory employee. See Plaintiff's Response at 3, 17-18. The court will, as required on a motion for summary judgment, assume these facts to be true. Even so, this evidence does not raise a fact issue regarding Credit Lyonnais's assertion that, after January 1999, Phillips was a substandard employee with a dismal attendance record and lackluster work record. See Motion at 1-12.
Phillips also points to the coincidence in timing between the termination of her employment and her notification to Hill that she was pregnant as evidence that Credit Lyonnais acted in discriminatory fashion. Response 19. Phillips argues that this "suspicious timing" amounts to proof of pretext. Phillips's proximity in time argument fails because the evidence submitted by Credit Lyonnais shows that Hill took steps to terminate Phillips's employment several weeks before she alleges he learned of her pregnancy. Illustrative of such evidence is Hill's memorandum to Ellen Haas dated June 24, 1999, which indicates Hill's intent to terminate Phillips's employment. The memorandum was sent almost a month before Phillips claims she told Hill that she was pregnant. Phillips has produced no evidence to the contrary. Thus, Phillips has not made the necessary showing that Hill knew of her pregnancy when he decided to end her employment. See Geraci v. Moody-Tottrup, International, Inc., 82 F.3d 578, 581-82 (3d Cir. 1996); Ilhardt v. Sara Lee Corporation, 118 F.3d 1151, 1155 (7th Cir. 1997) ("Ilhardt cannot contradict the fact that Newman [the head of her department] decided to eliminate her part-time position before she became pregnant. Regardless of whether he communicated this decision to her, the fact that he made the decision six months before she announced her pregnancy necessarily means he could not have made the decision because of her pregnancy.") (emphasis in original). Cf. Walton, 119 F.3d at 372 ("Walton contends that the fact that she was pregnant at the time she was terminated indicates impermissible sex discrimination. No one at Bisco with supervisory authority to fire her had been apprised of her pregnancy, however.").
In support of this "suspicious timing" argument, Phillips cites a Title VII retaliation case, Shackelford v. Deloitte Touche, 190 F.3d 398 (5th Cir. 1999). The Fifth Circuit has said, in the context of establishing retaliation, "[c]lose timing between an employee's protected activity and an adverse action against him may provide the `causal connection' required to make out a prima facie case of retaliation." Swanson v. General Services Administration, 110 F.3d 1180, 1188 (5th Cir.), cert. denied, 522 U.S. 948 (1997) (emphasis omitted). Time lapses of up to six months have been held sufficient to establish the causal connection prong of a prima facie retaliation case. See, e.g., Dennison v. ATT Corporation, 1998 WL 873032 at *1 n. 1, 2, 4 (N.D. Tex. December 3, 1998), aff'd, 189 F.3d 469 (5th Cir. 1999) (table). If the employer articulates a legitimate, non-discriminatory reason for the adverse employment decision, then the burden returns to the employee to prove that the reason offered by the employer is a pretext for unlawful retaliation. See Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993).
After the employer has produced evidence to rebut the employee's prima facie case of retaliation, the showing that the plaintiff must make to establish causation is more onerous than that initially required to present a prima facie case. Sherrod v. American Airlines, 132 F.3d 1112, 1122 n. 8 (5th Cir. 1998); Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996). "Although the court may consider proximity in time as a factor supporting causation, proximity alone is a slender reed on which to avoid summary judgment." Underwood v. Fast Texas University, 1998 WL 204624 (N.D. Tex. April 15, 1998) at *7 aff'd, 182 F.3d 915 (5th Cir. 1999) (table). See Mayberry v. Vought Aircraft Company, 55 F.3d 1086, 1092 (5th Cir. 1995) (affirming summary judgment for employer despite employee's claim that causation was shown by proximity in time between protected activity and adverse employment action); Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992) ("Consideration of such dates is part of our analysis, but not in itself conclusive of our determinations of retaliation."). The court is of the opinion that Phillips' "suspicious timing" evidence is insufficient, in the totality of the record, to satisfy her "more onerous" burden (than on a prima facie case) of showing that she was terminated because of her pregnancy.
The earliest date Phillips claims to have told Hill of her pregnancy is July 21, 1999. See pages 7-8 above.
The following language from Geraci, which on its facts is very similar to the instant case, demonstrates why summary judgment is appropriate here:
When the pregnancy is apparent, or where plaintiff alleges that she has disclosed it to the employer, then a question of the employer's knowledge would likely preclude summary judgment. If the pregnancy is not apparent and the employee has not disclosed it to her employer, she must allege knowledge and present, as part of her prima facie case, evidence from which a rational jury could infer that the employer knew that she was pregnant.
The application of this legal framework to the facts of Geracis' case need not detain us long. Geraci was not visibly pregnant; indeed, even Geraci herself did not know until shortly before she told her coworkers. She did not tell Moody management, and she requested that the six friends and co-workers to whom she disclosed her pregnancy not tell management.
Geraci argues that, because she told six out of twenty co-workers that she was pregnant and that her pregnancy became a "common topic of discussion in the office," management must have known it before it terminated her. Her managers, however, filed declarations disclaiming knowledge, and Geraci presented no evidence to the contrary. Geraci deposed only one of the co-workers whom she told of her pregnancy, and he testified that he did not tell management that she was pregnant. Thus, Geraci would have us remand this case for trial on the sheer speculation that one or more of the people she entrusted with highly personal information violated her confidence and that members of Moody management lied about their lack of knowledge. This is simply insufficient to create a genuine issue of material fact.
Geraci v. Moody-Tottrup, International, Inc., 82 F.3d 578, 581-82 (3rd Cir. 1996) (emphasis in original).
Phillips's last attempt to salvage her Title VII claim is her assertion that there were comments made by Hill which, in her view, evidence a clear inference of discrimination. Response at 20. The comments allegedly made by Hill were that, due to an expected glut of work associated with the upcoming close of Credit Lyonnais' Atlanta office, he "needed someone who would be there." Id. Credit Lyonnais and Hill deny that this comment was made. Motion at 24. In keeping with the summary judgment standard, the court will assume that the comment was made. Still, it does not evidence an intent to discriminate on the basis of pregnancy. The comment is probably best understood against the backdrop of the chronic absenteeism documented by Hill, but even if it is given the highly specific meaning attributed to it by Phillips, it is — at best — no more than a "stray remark," and "stray remarks alone will not overcome overwhelming evidence corroborating defendant['s] non-discriminatory rationale." Sreeram v. Louisiana State University Medical Center-Shreveport, 188 F.3d 314, 320 (5th Cir. 1999); see also Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996); Waggoner, 987 F.2d at 1166.
The Fifth Circuit has held that such remarks may be sufficient evidence of discrimination if the comments are "1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the termination; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue." Krystek v. University of Southern Mississippi, 164 F.3d 251, 256 (5th Cir. 1999) (citations omitted). In this case, the court finds that the comment was proximate in time to Phillips' termination and was made by Hill, who had authority to terminate Phillips's employment. However, the comment makes absolutely no reference to Phillips at all, much less her pregnancy. Nor does the comment make any reference to the employment decision at issue — Hill's decision to terminate Phillips' employment. Phillips has failed to demonstrate that the comment she ascribes to Hill is evidence of pretext. This is especially so "where, as here, the evidence overwhelmingly supports defendant['s] proffered non-discriminatory rationale." Sreeram, 188 F.3d at 320 (citing Brown, 82 F.3d 651 at 656).
The only connection found in the record between Phillips's discharge and a discriminatory animus is Phillips's subjective belief that her pregnancy resulted in the termination of her employment. However, such belief on Phillips's part, no matter how sincerely held, is insufficient to create an issue of material fact. Southard v. Texas Board of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997) (a plaintiff's "subjective interpretation of [her supervisor's] comments is insufficient to raise a fact issue as to sexual harassment."); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (plaintiff's "self-serving generalized testimony stating her subjective belief that discrimination occurred . . . is simply insufficient to support a jury verdict in plaintiff's favor"); Lechuga v. Southern Pacific Transportation Company, 949 F.2d 790, 798 (5th Cir. 1992) ("Conclusory statements in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment.") (footnotes omitted); Thornton, 850 F. Supp. at 544 (to avoid summary judgment, the plaintiff must offer more than the subjective belief of herself and others that she was a victim of discrimination); see also Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) ("[C]onclusory assertions cannot be used in an affidavit on summary judgment."); McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995) ("[A]ffidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to . . . defeat a motion for summary judgment") (citation omitted).
Credit Lyonnais has moved to strike certain of Phillips's sworn assertions on the ground that they are conclusory, contradictory, and that they include inadmissible hearsay and speculation. Defendant Credit Lyonnais' Objections to Plaintiff's Summary Judgement Evidence, Motion to Strike, and Brief in Support Thereof at 1-3. Credit Lyonnais's motion has merit. However, even if the court considers portions of Phillips's affidavit as well as the other evidence to which Credit Lyonnais objects in its motion to strike, it nevertheless concludes that Phillips has failed to raise a genuine issue of material fact on her Title VII claim. Accordingly, Credit Lyonnais's motion to strike is DENIED as moot.
Phillips has failed to raise a genuine issue of material fact on her Title VII claims. That is, Phillips has failed to present "substantial evidence" from which a jury can infer that Credit Lyonnais's legitimate reason for discharging her was a mere pretext for pregnancy discrimination. See Rhodes, 75 F.3d at 994. Accordingly, because an employment discrimination claim "cannot succeed unless the employee's protected trait actually played a role in th[e employer's decisionmaking] process and had a determinative influence on the outcome," Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993), Credit Lyonnais is entitled to summary judgment on Phillips's pregnancy discrimination claim.
The court need not analyze Phillips's TCHRA claim because that claim is analyzed under the same Title VII precedent as her PDA claim. See Wallace v. Methodist Hospital System, 271 F.3d 212, 218 n. 10 (5th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1961 (2002); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999) ("[T]he law governing claims under the TCHRA and Title VII is identical."); see also Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Caballero v. Central Power Light Company, 858 S.W.2d 359, 361 (Tex. 1993).