Opinion
No. EP-04-CA-00219-KC.
March 8, 2006
ORDER
On this day, the Court considered Defendant's Motion for Summary Judgment ("Motion"). For the reasons set forth herein, Defendant's Motion is DENIED in part and GRANTED in part.
I. BACKGROUND
The following background is derived from the undisputed facts as found in the parties' motions in support of and opposition to summary judgment in the present employment discrimination action.
Defendant Aaron Rents, Inc. ("Aaron Rents"), incorporated and having its principal place of business in Georgia, operates "rent-to-own" retail furniture stores throughout the country. Mem. of Law in Support of Def.'s Mot. For Summ. J. 1 ("Def.'s Mem."); Notice of Removal ¶ 3. Five of these stores are located in El Paso, Texas. Def.'s Mem. 1. From 2003 until January 5, 2004, Plaintiff Sonja Edwards ("Edwards") served as general manager for Aaron Rents' Dyer Street store. Id.
The parties dispute whether plaintiff served as general manager of the Dyer Street store from August 2003 until January 5, 2004, or alternatively from January 2003 until January 5, 2004. Compare Def.'s Mem. 1 with Plf.'s Factual App. to Her Resp. to Def.'s Mot. For Summ. J. 2 ("Plf.'s App.").
In October 2003, regional sales manager Alan Sanderson became Edwards' direct supervisor. Id. As the new regional manager, Sanderson visited Aaron Rents' El Paso stores, including the Dyer Street store. Id. During this time, Sanderson had the opportunity to assess and evaluate Edwards' performance. Id. at 2. Based upon his observations, Sanderson testified that he had concerns about her performance as a manager. Id.; App. to Def.'s Mem. App. 231:17-25 ("Sanderson Dep.").
For example, on November 25, 2003, Sanderson conducted a "Regional Managers Compliance Checklist" and Edwards received a failing score of 61%. Def.'s Mem. 2. Within this checklist, Edwards received low marks for collections from customers who were not current with their accounts, or non-renewed customers ("NONs"). Id. As a result, on December 27, 2003, Sanderson directed Refugio Gonzalez, the regional accounts manager, to give written warnings to every member of the Dyer Street store's collections department. Id. This included a written warning to Edwards for failing to hold her employees accountable for their poor NONs. Id. at 2-3.
In addition, Sanderson testified and Edwards admits, that her greatest weakness as a manager was her inability to make tough decisions with respect to her staff. Id.; App. to Def.'s Mem. App. 164:10-65:5 ("Edwards Dep."); Sanderson Dep. 51:17-25, 81:17-23. In explaining why her biggest downfall was caring about her staff, Edwards stated that "to be a good manager, you have to care about your staff. You can't be cold, and I wasn't." Edwards Dep. 54:21-23. She followed this statement by mentioning that she had waited too long to demote her accounts manager. Id. 64:10-65:1.
Despite these facts, Edwards can produce some evidence that she consistently received praise as a manager. First, the record reflects that in May of 2003, Edwards received an overall score of 95% in a Compliance Evaluation, including a score of 90 for "renewals." Sanderson Dep. 41:1-42:15, 43:2-24. Second, Aaron Rents had a practice of occasionally taking a "one-day snapshot" of various employees' performances, and in the context of these snapshots, Edwards was listed among the top performers on two separate occasions. Sanderson Dep. 150:23-153:6. Third, throughout the course of his employ at Aaron Rents, Sanderson recalled issuing Edwards only one write-up for performance deficiencies and was unsure of whether any other store manager in El Paso had ever received a written counseling form for poor NONs. Sanderson Dep. 35:22-36:18, 67:2-5. Finally, the record reflects that on January 2, 2004, the Dyer Street store was recognized for meeting 100% of its revenue goals for the previous month of December. Sanderson Dep. 157:1-18.
Regardless of these statistics and based upon his concerns, Sanderson decided to transfer Edwards to a new store on Mesa Street and informed her to this effect on December 30, 2003. Def.'s Mem. 3. His stated reasons for this transfer were (1) her inconsistent performance with respect to her NONs and (2) her inability to be objective with her staff. Sanderson Dep. 81:18-23, 132:1-6.
Edwards resisted the transfer. Id. at 3. She felt that Mesa Street was a poor location for a new Aaron Rents store because it would not succeed and grow there. Id.; Edwards Dep. 121:21-122:2. When she voiced these concerns, Gonzalez allegedly told her that all the Mesa Street store needed was a female manager. Edwards Dep. 120:9-13, 160:4-12; Strickland Dep. 23:5-25. Nonetheless, Edwards testified that although she did not want to go to the Mesa Street store, she would have gone and given 110 %. Edwards Dep. 153:8-15, 174:21-175:3.
One day before Edwards' transfer was to take place, Edwards emailed Sanderson asking him to remind her of the reason for her transfer. Id. Upon receiving this email, Sanderson held a brief meeting with Edwards, during which Edwards repeated her desire to remain at the Dyer Street store. Id. at 3-4. At one point, she told Sanderson, "I work for Aaron's; I don't work for you." Edwards Dep. 129:17-130:1. After this meeting, Sanderson testified that he decided to speak to Edwards again on January 5, 2004. Def.'s Mem. 4; Sanderson Dep. 102:4-24, 106:11-107:22, 121:7-12. If, on January 5, Edwards still did not agree to the Mesa Street transfer, Sanderson testified that he was going to terminate her employment. Def.'s Mem. 4; Sanderson Dep. 102:4-24, 106:11-107:22, 121:7-12.
Sanderson testified that he had the authority to hire and fire individuals with input from Dave Buck, Sanderson's supervisor and Aaron Rents' divisional vice president. Sanderson Dep. 16:6-9. He testified that, in terminating an employee, he makes a recommendation to Buck, who then finalizes it. Sanderson Dep. 16:10-12. He also testified that he has never made a recommendation that Buck has not accepted. Sanderson Dep. 16:13-15. According to Sanderson, he asked Buck whether, if Edwards resisted the transfer, he was within his rights to terminate her employment. Sanderson Dep. 114:4-8. Buck allegedly replied that he was within his rights to do so. Sanderson Dep. 114:7-8.
At some point during these events, Plaintiff faxed a letter to Dave Buck, Sanderson's supervisor and Aaron Rents' divisional vice president, complaining about the proposed transfer to the Mesa Street store. Def.'s Mem. 9; Edwards Dep. Ex. 12; Plf.'s App. 3. The faxed letter is dated January 3. Edwards Dep. Ex. 12. The fax contains three time stamps: (1) one dated January 4, 2004 at 20:46 hours with a corresponding number of 19567122503, (2) one dated January 6, 2004 at 14:53 hours with a corresponding number of 2818668584, and (3) one dated January 20, 2004 at 10:14 hours with a corresponding number of 9155900434. Id. Sanderson confirmed that the letter was faxed on January 4, 2004 at 20:46 hours from an Aaron's Rents store, but did not identify the recipient to which it was sent. Sanderson Dep. 98:11-24. Sanderson also confirmed that the letter was faxed to Buck's office on January 6, 2004 at 14:53 hours. Sanderson Dep. 98:25-99:13.
Subsequently, on January 5, 2004, when Edwards again questioned Sanderson's decision to transfer her to the Mesa Street store, Sanderson terminated her employment. Def.'s Mem. 4; Edwards Dep. 190:9-20. Sanderson tendered Edwards termination papers, which specified the reasons for termination as (1) failure to effectively manage store operations, specifically the NON's department, and (2) resistance to and failure to support management's decision regarding her reassignment. Sanderson Dep. Ex. 5. Sanderson testified that Edwards was being insubordinate by questioning his decision. Sanderson Dep. 93:10-94:4.
Similarly, in a letter dated January 27, 2004, Ken Butler, the president of Aaron Rent's Sales and Leaving division, sent a letter to Edwards explaining that she was terminated for poor performance and denying the allegation that Aaron Rents discriminates on the basis of gender. Sanderson Dep. 145:4-146:13, Ex. 7.
Edwards points to four sets of facts in asserting that she was discriminated against on the basis of her gender. First, she points to the fact that other managers had poor NONs, but were not similarly disciplined and/or asked to transfer to another store. Edwards Dep. 166:9-22, 168:3-12. Edwards can produce evidence that her NONs percentage was 66%, while two other store managers' percentages were 64% and 61%, respectively. Sanderson Dep. 159:11-160:4. In fact, Sanderson agreed that both other store managers were "having problems," but could not recall whether either of them had received a write-up for poor NONs. Sanderson Dep. 160:5-17. Sanderson was unaware of any other situation in his region in which an Aaron Rents store's general manager had been transferred to another store based on his/her poor performance. Sanderson Dep. 137:3-9. He was also unable to identify any activity with respect to Edwards that occurred between the date of her written reprimand for poor NONs (December 27, 2003) and her termination (January 5, 2004), which caused him to change the disciplinary action for poor NONs from a reprimand to a termination. Sanderson Dep. 135:9-19.
Second, Edwards points to the fact that Sanderson referred to the Dyer Street store as a "girlie store" once, near the time when Aaron Rents took over the Dyer Street store from DPR Investments in August of 2003. Strickland Dep. 39:12-41:22; Def.'s Mem. 1 n. 1. Edwards testified that two Aaron Rents employees, RJ Wooten and Jeff Parsons, also referred to the Dyer Street store as a "girlie store" because it had several female employees. Edwards Dep. 254:6-15. Edwards testified that RJ Wooten told her that she should not hire any more female employees because the store already had too many. Edwards Dep. 255:23-256:4.
Edwards and Strickland testified that Sanderson would stare at Edwards' chest, rather than look at her face. Edwards Dep. 57:21-58:1; Strickland Dep. 91:20-92:9. However, Edwards also testified that she never confronted him with it, reported it, nor called the company's hotline number to report the behavior. Edwards Dep. 58:2-12.
Third, Edwards and Deborah Strickland, a former sales manager of Aaron Rents, testified that Sanderson would socialize with male store managers, but not female ones. Edwards Dep. 179:16-181:17; Strickland Dep. 75:2-77:22. However, neither woman could specify whether these activities were company-sponsored or not. Edwards Dep. 179:16-181:17; Strickland Dep. 75:2-77:22.
Finally, Edwards points to the fact that Aaron Rents did not end up transferring the manager of the Mesa Street store to the Dyer Street store after terminating Edwards. Sanderson Dep. 138:14-139:7. Instead, Sanderson promoted someone from within the Dyer Street store to the general manager's position and left the manager of the Mesa Street store in his location. Id.
II. DISCUSSION
A. Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. 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). Once the movant carries the initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. 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).
B. Gender Discrimination
Section 21.051 of the Texas Commission on Human Rights Act (TCHRA), which protects against sex-based discrimination, is "substantively identical" to it federal equivalent in Title VII. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 475 (Tex. 2001). In fact, one purpose of the TCHRA is to provide for the execution of Title VII policies. Id. at 476. Hence, Title VII and its subsequent case law guide courts in applying the TCHRA. Id. (citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)); see Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 n. 10 (5th Cir. 2001) (noting that TCHRA claims are analyzed under Title VII precedent).
In order to survive a motion for summary judgment on discriminatory discharge claims brought under Title VII, the plaintiff must establish a prima facie case of discrimination. Shackelford v. DeLoitte Touche, L.L.P., 190 F.3d 398, 404 (5th Cir. 1999) (referring to standard from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03 (1973)). Under the traditional McDonnell Douglas standard, the plaintiff establishes a prima facie case by proving that: (1) she is a member of a protected class, (2) she was qualified for his position, (3) she was subjected to an adverse employment action, and (4) she was replaced by someone outside the protected class. Id. This burden is not an onerous one. Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) ("Only a minimal showing is necessary to [establish a prima facie case of discrimination]."). Once established, the prima facie case raises a presumption of discrimination, which the defendant may rebut by articulating a legitimate, non-discriminatory reason for the adverse employment action. Shackelford, 190 F.3d at 404. If the defendant is able to articulate such a reason, the plaintiff must then prove that the defendant's legitimate, non-discriminatory reason for the adverse employment action is a mere pretext for discrimination. Id.
1. Prima Facie Case
Aaron Rents appears to raise no issue with Edwards' ability to assert a prima facie case of gender discrimination. See generally Def.'s Mem. She (1) is a woman, (2) was presumably qualified for the position she held, (3) was terminated, and (4) was replaced by a male. As such, the burden shifts to Aaron Rents to articulate a legitimate, non-discriminatory reason for her termination.
2. Legitimate, Non-Discriminatory Reason for the Adverse Employment Action
Under the McDonnell Douglas approach, Aaron Rents does not need to persuade the Court that it was actually motivated by its proffered reasons. Burdine, 450 U.S. at 254. The Supreme Court has stated that it is sufficient if a defendant's evidence raises a genuine issue of fact as to the issue of discrimination. Id. 254-55. In delineating a quantum of evidence sufficient to raise such a genuine issue of fact as to discrimination, the Fifth Circuit has held that:
Even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an employee's competence. Motive is the issue . . . [A] dispute in the evidence concerning . . . job performance does not provide a sufficient basis for a reasonable factfinder to infer that [the] proffered justification is unworthy of credence.Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).
Pursuant to Mayberry, Aaron Rents has succeeded in articulating two legitimate, non-discriminatory reasons for Edwards' termination. Aaron Rents justified the termination based on (1) Edwards alleged failure to effectively manage store operations, especially with respect to her NONs department, and (2) Edwards resistance to management's decision to transfer her to a new store based on her poor operating performance. Sanderson Dep. Ex. 5. Both of these reasons reflect self-protective action based upon a reasonable belief that Edwards' performance was inadequate. See Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (noting that legitimate, non-discriminatory reason for adverse employment action need not be true, as long as the belief in it is reasonable). As such, the burden falls upon Edwards to establish that Aaron Rents' articulated reasons are a mere pretext for gender discrimination.
3. Pretext
In attempting to show that a defendant's asserted reasons for an adverse employment action are merely pretext, the Supreme Court has stated that casting doubt upon the veracity of the defendant's reasons, in addition to establishing a prima facie case, can be persuasive evidence of intentional discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000) ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination."). The Supreme Court held that "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. at 148. However, the Supreme Court noted that such showing will not always be adequate to defeat summary judgment. Id. at 147. For example, casting doubt upon the veracity of the defendant's legitimate, non-discriminatory reason is insufficient to defeat summary judgment when the "record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. at 148.
In the instant case, Edwards has succeeded in casting doubt upon the veracity of both of Aaron Rents' articulated reasons for the discrimination. First, with respect to the issue of poor NONs, Edwards has presented evidence that (1) she received a score of 95% in a compliance evaluation which took into account her NONs statistics, (2) she received only one write-up during the course of her employ for poor NONs, (3) on January 2, 2004, merely three days before her termination, Edwards' store was recognized for meeting 100% of its revenue goals, and (4) Edwards percentage for NONs was within 5 percentage points of two other male managers, neither of whom received write-ups for poor NONs. More telling than these statistics is the fact that Sanderson relied upon Edwards' poor NONs as a reason for her termination, even though he had already disciplined her for this reason in the form of a write-up merely seven days earlier. Plf.'s App. 12; Edwards Dep. 274:24-275:13.; see Pugh v. City of Attica, 259 F.3d 619, 628-629 (7th Cir. 2001) (noting that suspicious timing, while alone is insufficient to create a genuine issue as to pretext, is nonetheless valid circumstantial evidence that may help prove the plaintiff was terminated for a reason other than that offered by the employer). Sanderson was unable to identify any activity that caused him to change the disciplinary action for the poor NONs from a reprimand to a termination within the course of only a few days.
With respect to the second articulated reason — Edwards' resistance to management's decision to transfer her to a new store based on her poor operating performance — Edwards has similarly produced sufficient evidence to create a genuine issue of fact with respect to pretext. First, Edwards has produced evidence, not only that her NONs were on par with those of other male store managers, but also that she was listed among Aaron Rents' top performers on two separate occasions. Moreover, she can produce testimony from Sanderson that he did not decide to transfer any of the other male store managers for their poor performance and did not even recall an occasion when such move had been contemplated. Finally, Edwards has produced evidence that she did not refuse to transfer to the new store, but merely questioned the decision and asked that it be explained to her. Thus, this Court finds the evidence sufficient to cast doubt upon the veracity of both of Aaron Rents' stated reasons for the termination.
Nevertheless, in order to defeat summary judgment on a gender discrimination claim under the TCHRA, the plaintiff must not only prove that the articulated reasons for the termination were mere pretext, but also that gender discrimination was the real reason for the termination. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003); see also Taylor v. United Parcel Serv. Of Am., Inc., 2003 U.S. Dist. LEXIS 23510, *19 (N.D. Tex. 2003). For example, in Canchola, the plaintiff sued Wal-Mart for disability discrimination based on the fact that he had missed work in order to receive surgery. Canchola, 121 S.W.3d 737. Wal-Mart produced evidence that the plaintiff had been accused of sexually harassing female workers and was subsequently discharged after an investigation into these allegations. Id. at 739. The Texas Supreme Court held that although the plaintiff was able to produce evidence regarding the poor quality of Wal-Mart's investigation, such evidence did not, by itself, prove that the plaintiff's disability was a motivating factor in his termination. Id. at 740. The Court stated that "[a]n at-will employer does not incur liability for carelessly forming its reasons for termination. . . . As long as its reason for terminating [the plaintiff] was not illegal, Wal-Mart could have fired Canchola, an at-will employee, for his failure to remove out-dated products from the deli, or for the sexual harassment accusations made against him, or for no reason at all." Id. (citing Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 609 (Tex. 2002)). The Court stated that "[t]he relevant inquiry is not whether the complaints made against Canchola were a pretext, but what they were a pretext for." Id.
The Fifth Circuit reaffirmed this rule in the context of the TCHRA in Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 489 (5th Cir. 2004). The Fifth Circuit analyzed Texas case law, including Canchola, and explained that in all TCHRA unlawful employment-practice claims (i.e., both pretext and mixed motive discrimination cases), the correct standard of causation is whether discrimination was "a motivating factor" in the adverse employment decision. Id. at 488, 488 n. 4. The Fifth Circuit acknowledged the holding of Canchola that an arguably deficient investigation into a workplace violation is insufficient to establish pretext, because it does not show both that (1) the proffered reason is false and (2) that discrimination was the real reason for the termination. Id. at 489.
The Fifth Circuit noted that the Texas Supreme Court based Canchola on its interpretation of Reeves v. Sanderson, 530 U.S. 133 (2000). Pineda, 360 F.3d at 490 n. 8. As the Texas Supreme Court was interpreting Reeves so as to guide its application of the TCHRA, the Fifth Circuit did not inquire into whether the Texas Supreme Court correctly interpreted Reeves. Id. In a similar vein, the Fifth Circuit clarified that its ruling in Pineda is limited to interpretation of the TCHRA, and should not be interpreted as an adoption Canchola for purposes of federal law. Id.
Although the Fifth Circuit specifically acknowledged that Canchola and its progeny are not necessarily consistent with Reeves, this Court, as federal court sitting in diversity, must apply the substantive law of the state in which it sits. Rosenberg v. Celotex Corp., 767 F.2d 197, 199 (5th Cir. 1985); see also Pineda, 360 F.3d at 490 n. 8 (refusing to adopt Canchola for purposes of interpreting federal Title VII cases). Thus, this Court is bound by Canchola's "motivating factor" test in determining whether Edwards has proffered enough evidence to establish a claim of gender discrimination.
As articulated above, Edwards points to four sets of facts in attempting to show that gender discrimination was the real reason for her termination: (1) Sanderson's, Wooten's, and Parson's reference to the Dyer Street store as a "girlie store," Gonzalez' comment that all the Mesa Street store needed to succeed was a female, and Wooten's alleged instruction not to hire any more female employees, (2) Sanderson's decision to socialize with male managers but not Edwards, (3) Aaron Rents' decision not to transfer the manager of the Mesa Street store to the Dyer Street store in light of Edwards' termination, and (4) the fact that her NONs were within 5% of other male managers who were "having problems" but who were neither written up nor transferred. Each of these facts will be addressed in turn.
First, the comments cited by Edwards are insufficient to establish a genuine issue as to pretext because they are no more than stray remarks. Although the comments were (1) related to the protected class of persons of which the plaintiff is a member, and (2) made by at least one individual with authority over the employment decision at issue (i.e., Sanderson), there is no evidence that they were made (3) proximate in time to the termination, or (4) that they were related to the employment decision at issue. See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999) (reciting elements of stray remarks doctrine). Sanderson's comment about the Dyer Street store being a "girlie store" was made in August of 2003 — nearly four months before her termination. Though presumably the comment made by Gonzalez was made near the time of Edwards' proposed transfer, neither party provided information as to when the comments by Wooten and Parsons were made. Moreover, there is no evidence that the comments were related to the decision to terminate Edwards. Edwards has presented no evidence that these remarks are so direct and unambiguous as to allow a reasonable jury to conclude, without any inferences or presumptions, that gender was an impermissible factor in Edwards' termination. Equal Employment Opportunity Comm'n v. Texas Instruments Inc., 100 F.3d 1173, 1181 (5th Cir, 1996); see Felts v. Combined Ins. Co. of Am., 2000 U.S. Dist. LEXIS 389, *8 (N.D. Tex. 2000) (noting that when comments fail to satisfy the four-pronged test discussed infra, they "are nothing more than stray remarks without probative value. Stray remarks with no connection to an employment decision cannot create a fact issue regarding discriminatory intent and are insufficient to defeat summary judgment."); Neal v. Mulate's of New Orleans, Inc., 1999 U.S. Dist. LEXIS 12780, *9 (E.D. La 1999) (noting that stray remarks must have connection to employment decision to defeat summary judgment). As such, these comments are insufficient to prove that gender discrimination motivated Edwards' termination.
Second, the fact that Sanderson socialized with male managers but not with Edwards is insufficient to prove gender discrimination. Title VII, and by analogy the TCHRA, does not protect employees from conduct that is not based on their protected status. DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986); Taken v. Okla. Corp. Comm'n, 934 F. Supp. 1294, 1301 (W.D. Okla. 1996). In other words, the TCHRA will protect against gender-based distinctions rather than sexual or personal affiliations. DeCintio, 807 F.2d at 308; Taken, 934 F.Supp. at 1301. Accordingly, Sanderson's decision to socialize with male managers to the exclusion of Edwards is insufficient proof of gender discrimination.
Third, Aaron Rents' decision not to transfer the manager of the Mesa Street store to the Dyer Street store in light of Edwards' termination is insufficient to show that the real reason for the termination was gender discrimination. Plaintiff has not cited, and this Court cannot find, any law to support such a position. Therefore, this fact is insufficient to meet the pretext standards under Canchola and Pineda.
Finally, Edwards presents evidence that her NONs statistics were within 5% of other male managers who Sanderson admits were "having problems" but were neither written up nor transferred. "[T]o establish disparate treatment a 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 Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001); see Wallace, 271 F.3d at 221 (citing same standard); Mayberry, 55 F.3d at 1090 ("To establish a prima facie case in this manner, Mayberry must show that white employees were treated differently under circumstances `nearly identical' to his."); see also Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096, 1101 (5th Cir. 1985) ("When 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. This presumption arises because we assume that an employer acts on the basis of some underlying reason, either legitimate or not. Consequently, if there is no apparently legitimate reason for a white supervisor's alleged disparate treatment of a black employee, it is more likely than not that the supervisor based the decision on an impermissible consideration such as race.") "Employees with different responsibilities, different supervisors, different capabilities, different work rule violations or different disciplinary records are not considered to be `nearly identical.'" Groves v. Bank of Am., N.A., 2003 U.S. Dist. LEXIS 19905, *12 (W.D. Tex. 2003) (citing Okoye, 245 F.3d at 514-15).
In this case, the record reveals that Edwards and the male managers held the same job with presumably the same responsibilities, and had the same supervisor. The record does not establish whether or not the male managers had a problem similar to Edwards' admitted inability to make tough decisions with respect to her staff, creating a possible argument that Edwards was not in a situation nearly identical to that of the male managers. However, the record does reflect that Sanderson admitted the male managers were "having problems," yet that he neither wrote them up nor recommended them for transfer to a new store. Moreover, Defendant failed to cite Edwards' inability to make tough decisions with respect to her staff in her termination papers, indicating that it might not have been a problem unique to her, nor did it provide other evidence allowing this Court to determine that the Plaintiff was not in a nearly identical situation. Thus, viewing the evidence in a light most favorable to Plaintiff, this Court finds that Edwards' situation was "nearly identical" to that of the male managers.
In addition, one of the two articulated reasons for Edwards' termination was her "failure to effectively manage store operations, more specifically regarding the non's dept. . . ." Edwards' Dep. Ex. 5. (emphasis added). As demonstrated above, Edwards' NONs were on par with those of the male managers. Therefore, viewing the evidence in a light most favorable to Edwards, this Court finds that the misconduct for which the plaintiff was discharged is nearly identical to that engaged in by other employees (i.e., having poor NONs).
In light of the above, Edwards has raised a genuine issue of fact as to whether she was subject to disparate treatment based on her gender. Hence, she has raised a genuine issue of fact as to whether Aaron Rents' articulated reasons are a mere pretext for gender discrimination. Accordingly, summary judgment as to the gender discrimination claim should be denied.
C. Retaliation
To state a prima facie claim for retaliatory discrimination under the TCHRA, a plaintiff must establish that: (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) a causal connection existed between her participation in the protected activity and the adverse employment action. Pineda, 360 F.3d at 487. The standard for establishing causation at this stage is much less stringent than a "but for" standard. Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir. 2001). Moreover, a plaintiff may satisfy the causal connection through either direct or circumstantial evidence. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003). Since direct evidence of discrimination is rarely available, plaintiffs must generally rely upon circumstantial evidence to prove their cases. See id. ("Usually, in the context of a retaliation claim, the employer refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, and so direct evidence of an employer's allegedly retaliatory intent is rarely available."). When a plaintiff relies upon circumstantial evidence in order to prove her case, the Court applies the familiar McDonnell Douglas approach, discussed supra Section II.B. To recap, once the plaintiff establishes a prima facie case of retaliatory discrimination, the defendant can rebut this showing by producing evidence of a legitimate, non-retaliatory reason for the adverse employment action. Fierros, 274 F.3d at 191. Thereafter, the burden shifts to the plaintiff who must prove that the protected activity was a "but for" cause of the adverse employment action. Id.; Pineda, 360 F.3d at 488.
In the instant case, Edwards argues that she has established a prima facie case of retaliation by showing that (1) she engaged in protected activity by faxing a letter to Buck complaining of her transfer before she was terminated, (2) she was subsequently terminated, and (3) the short time lapse between her fax and her termination is sufficient to establish that a causal connection existed between her protected activity and her termination. Plf.'s Resp. 4-5. Aaron Rents argues that she has failed to establish a prima facie case of retaliation because Sanderson knew nothing of the fax before he decided to terminate her employment. Def.'s Mem. 9. Viewing the evidence in a light most favorable to the non-moving party, this Court finds that Edwards has not succeeded in establishing a prima facie case of retaliation.
Although Edwards was terminated shortly after faxing her letter to Buck and a short time-lapse existed between her fax and her termination, Edwards has failed to show that she engaged in a protected activity. Under Title VII, an employee's use of her employer's internal administrative processes to file a discrimination complaint constitutes a protected activity. Fierros, 274 F.3d at 194; see Mato v. Baldauf, 267 F.3d 444, 447 (5th Cir. 2001) (recognizing internal complaints as protected activity). As a preliminary matter, there is no evidence to suggest that Aaron Rents had an internal administrative process through which Edwards could report discrimination. However, even assuming that Edwards' internal fax was part of an internal process to report discrimination sufficient to satisfy Fierros, the fax itself did not allege that her transfer was the result of discrimination.
Aaron Rents argues that Sanderson had no knowledge of the fax before he decided to terminate Edwards, and therefore there is no causal connection between the protected activity and the adverse employment decision. Def.'s Mem. 9-10. Edwards can establish that the fax, addressed to Buck, was made on January 4, 2004 from an Aaron Rents store to an unspecified location. Edwards Dep. Ex. 12; Sanderson Dep. 98:11-24. She can also show that her termination occurred on January 5, 2004, and that Sanderson needed Bucks' permission to terminate her. Plf.'s Resp. 5; Sanderson Dep. 16:6-9. Thus, viewing the evidence in a light most favorable to Edwards, this Court will assume that Buck and Sanderson had knowledge of the fax before terminating Edwards.
The only mention of gender in the entire fax was Edwards' statement that "JR stated that he felt [the Mesa Street store] just needed a female." Edwards' Dep. Ex. 12. In fact, Edwards stated that she was being transferred, not based on gender discrimination, but "because [she was] thought of as being less a manager than they desire at [the Dyer Street store]." Id. Furthermore, she made reference to her transfer as Aaron Rents' decision to "push [her] from one place to another to accommodate someone else." Id. Therefore, even assuming that Edwards fax was part of an internal reporting process, the contents of the complaint fail to allege or specifically complain about gender discrimination, and thus cannot constitute a discrimination complaint sufficient to satisfy Fierros.
Nonetheless, assuming that Edwards could make a prima facie showing of retaliatory discharge, she nonetheless fails to meet her burden of showing pretext. As discussed above, Aaron Rents has articulated two legitimate, non-retaliatory reasons for Edwards' discharge. Thus, the burden falls upon Edwards to prove that retaliation for opposing gender discrimination was a "but for" cause of her termination. Pineda, 360 F.3d at 488.
A recent Fifth Circuit opinion illustrates this burden. In Pineda, the plaintiff took a ten month leave of absence from his job with UPS to treat his diabetes condition. Pineda, 360 F.3d at 486. While on leave, the plaintiff filed a charge of disability discrimination with UPS for delaying his return to work. Id. Upon his return to work, the plaintiff was transferred to a new UPS facility, investigated for threatening violence against his co-workers, and eventually terminated from his employment. Id. After his termination, the plaintiff filed a charge of retaliation against UPS for engaging in the protected activity of filing a disability discrimination complaint. Id. He presented evidence that the alleged threats of violence never occurred and that UPS had never previously investigated similar charges with similar vigor. Id. In granting judgment as a matter of law for UPS, the Fifth Circuit held that under the "but for" causation standard, Pineda could not show that retaliation was the "but for" cause of his termination because, if believed, the allegations of physical violence asserted against him would establish an alternate, legitimate justification for the termination. Id. at 489.
As applied to the facts of this case, Pineda forecloses the possibility that Edwards could establish pretext in this case. Just as in Pineda, if believed, the allegations of an inability to effectively manage store operations and a failure to support managements' decisions would establish an alternate, legitimate justification for Edwards' termination. Edwards has presented no evidence that suggests she was selectively fired because she faxed her complaint to Buck or that had she not faxed the letter to Buck, she would not have been terminated. See id. at 490 (finding that Pineda failed to meet the "but for" causation standard because he presented no evidence that he was selectively fired because of his protected activity or that had he not engaged in the activity, he would not have been terminated.) As such, Edwards has not presented sufficient evidence to meet her burden with respect to establishing pretext, and summary judgment is appropriate as to this claim.
III. CONCLUSION
Defendant's Motion for Summary Judgment (Doc. No. 17) is DENIED as to the gender discrimination claim but GRANTED as to the retaliation claim.
SO ORDERED.