Opinion
Civil Action No. 3:02-CV-2618-P.
April 23, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant Perot Systems Corporation's Motion for Summary Judgment, filed on January 30, 2004. Plaintiff filed his Response on February 27, 2004, and Defendant filed its Reply on March 15, 2004. After considering the parties' arguments and briefing, and the applicable law, the Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment.
I. Background and Procedural History
Plaintiff, Hemant S. Lall, is a 52 year-old male of Indian-Asian origin. Appendix to Plaintiff's Response to Defendant's Motion for Summary Judgment, Ex. 1 ("Pl.'s Decl."), p. 1. He holds bachelor's and master's degrees in engineering, as well as a master's degree in operations research, and has completed all course work for a doctorate degree in operations research. Id. at p. 1-2. Plaintiff has also refereed publications in trade journals within the energy industry. Id. at p. 2.
a. Plaintiff's Employment History at PSC
Plaintiff was originally hired by Defendant, Perot Systems Corporation ("PSC" or "Defendant"), on December 27, 1989 as an associate in its Houston office. Id. According to Plaintiff, his primary concentration at the Houston office was to find new customers for PSC's fledgling energy division, start accounts with those customers, and develop those accounts until they were ready to be transferred to another PSC employee. Id. Plaintiff was transferred out of the Houston office in 1992, but he continued to work on the development of PSC's energy division. Initially, Plaintiff was transferred to Nottingham, England, where he was able to work in England's deregulated energy industry. Id. Subsequently, in July 1994, Plaintiff was involved in securing an account with Southern California Edison ("SCE") when California was making a transition to energy deregulation. Id. at p. 3. As the account manager for the SCE account, Plaintiff was responsible for developing SCE from one associate to over 55 associates, and brought in revenues in excess of $25 million from associated projects. Id. In 1997, Plaintiff was also involved in landing electricity projects and consulting engagements relating to deregulation with the California Independent System Operator, a deregulation entity, and the Los Angeles Department of Water and Power. Id. at p. 3-4.
b. iQOM
In December 1999, Russell Prentice began working on a business plan at PSC for a project called Powerstar, later renamed iQom. Appendix to Defendant's Motion for Summary Judgment, Ex. 4 ("Prentice Dep."), p. 158. iQom was to be a part of PSC's Emerging Industries division, which was comprised of PSC businesses that did not fit into its existing industry divisions. App. to Def.'s Mot. for Summ. J., Ex. 5 ("Scott Dep."), p. 184. In creating iQom, PSC hoped to take advantage of opportunities created by increasing deregulation in the energy industry. Id. at p. 181. PSC intended to create a system of energy management products to assist in monitoring and managing the use of energy, and market them to a variety of clients through iQom. App. to Def.'s Mot. for Summ. J., Ex. 1 ("Pl.'s Dep."), p. 12-14. Ken Scott was the head of the Emerging Industries division at PSC and, in April 1999, he hired Terry Ukrainetz to serve as Business Lead of iQom. Scott Dep. at p. 184. In late 1999, Plaintiff was transferred from California back to Texas to help with iQom. Pl.'s Decl. at p. 4. Plaintiff's role at iQom was to market iQom services to potential customers, work on the acquisition of new accounts, and perform relevant market analysis. See Pl.'s Decl. at p. 4; App. to Def.'s Mot. for Summ. J., Ex. 6 ("Ukrainetz Dep."), p. 239.
From the beginning, iQom failed to meet its budgeting expectations, and PSC was reluctant to invest development funds into the division. Scott Dep. at p. 187; Prentice Dep. at p. 159-60. As a result, potential customers were required to provide substantial capital contribution, thereby sharing in the initial costs of iQom's services. Id. PSC now claims that this practice made it difficult for iQom to attract clients. As of August 2001, over two years after its inception, iQom had only one account, the Wyndham International account (the "Wyndham Account"), for which Prentice was the account manager. Ukrainetz Dep. at p. 202-03, 205, 214. Plaintiff was not involved in the signing, maintenance, or support of the Wyndham Account.
As a result of other PSC projects that were not meeting budgeting expectations, the Emerging Industries divisions reorganized in May 2001. App. to Def.'s Mot. for Summ. J., Ex. 2 ("Lang Dep."), p. 111-12. PSC's businesses involving travel and transportation, telecommunications, and energy were combined into a new organization called the Strategic Marketing Group ("SMG"). Id. Scott Lang was appointed Vice President of SMG, and was charged with increasing the profitability of the new group. Id. According to PSC, Lang decided that iQom would not be a primary area of focus for SMG in the future. Id. at p. 117-118. However, because of iQom existing business with Wyndham International, Lang decided not to eliminate iQom. Id. at p. 118-19. Lang later hired Eugene Pizinger to oversee both the Energy and Telecommunications groups for SMG. Id. p. 142. In this capacity, Pizinger was given oversight of iQom, which was part of the Energy group. Pizinger then asked Ukrainetz to serve as General Manager of the Energy group. Id. at p. 114.
Plaintiff claims that, in December 1999, he was told by Ukrainetz that he would take over as Business Lead of iQom once Ukrainetz was promoted. Lall Decl. at p. 5. Plaintiff also claims that, at about the same time, Ukrainetz sent an e-mail to Carl Young, acting Chief Financial Officer for iQom, to this effect. Id. However, when Ukrainetz was promoted to the General Manager position, Prentice, and not Plaintiff, was promoted to the Business Lead position. Ukrainetz Dep. at p. 222-24. Subsequently, on July 16, 2001, Plaintiff received an automated e-mail from PSC's intranet system ("TRAIN"), informing him the he had been designated team lead for the Market Analysis Team, a new position within iQom. Pl.'s Dep. at p. 34.
c. The Reduction in Force and Plaintiff's Termination
PSC claims that, in the summer of 2001, it was forced to implement a company-wide Reduction-In-Force ("RIF"). Lang Dep. at p. 121. Lang testified at his deposition that he and his team leaders identified positions that could be eliminated as part of the RIF based, in part, on whether they were directly billable or supporting a billable account. Id. at 123-24. Lang and Pizinger both testified that the primary concern in eliminating certain positions as part of the RIF was to reduce the number of employees who were non-billable or not supporting a billable account, and to reduce overhead costs. Id.; App. to Def.'s Mot. for Summ. J., Ex. 3 ("Pizinger Dep."), p. 147-48. Plaintiff's position at iQom was neither directly billable to any account, nor did he support a billable account. As such, Plaintiff was selected for the RIF. On July 30, 2001, Ukrainetz went to Plaintiff's home and informed him that his position was being eliminated as part of the RIF. Ukrainetz Dep. at p. 224-25.
After receiving notification of the elimination of his position, Plaintiff was allowed thirty days to acquire an alternate position within PSC. Plaintiff's Complaint, ¶ 21. During this time period, Plaintiff remained a PSC employee, but ultimately bore the burden of finding an alternate position. Pl.'s Dep. at p. 36. In order to assist in his search for an alternate position at PSC, Plaintiff was assigned an internal recruiter. Id. at p. 101. According to Plaintiff, however, he was not provided a dedicated internal recruiter until August 13, 2001. Pl.'s Decl. at p. 7. Plaintiff requested a fifteen day extension to search for an alternate position because of this delay. Id. Plaintiff's request was denied. Id.
There is significant disagreement as to whether Plaintiff did in fact apply for any alternate positions at PSC. In his answers to PSC's interrogatories, Plaintiff claimed that he applied for any open position within PSC both directly through TRAIN and by e-mailing and contacting individuals at PSC. PSC contends, however, that Plaintiff failed to apply formally for a single open position at PSC. In response to Plaintiff's claims that he did in fact apply to open positions worldwide at PSC, PSC notes that Plaintiff could not identify any of the positions that he allegedly applied for at his deposition. See Pl.'s Dep. at p. 58. Regardless of whether Plaintiff did apply for these positions, it is undisputed that Plaintiff was unsuccessful in finding an alternate position within PSC. As a final attempt to remain at PSC, Plaintiff sent a letter to H. Ross Perot, Sr., president of PSC, on August 20, 2001, offering to work for PSC for one dollar per year for the next four years. Pl.'s Decl. at p. 13. According to Plaintiff, he made this offer because "he had been told that his job was being eliminated due to an ongoing economic downturn, and if he could work essentially without a salary, that would directly resolve the reason he was being terminated." Pl.'s Resp., p. 12. As he had not received an immediate response from Perot, Plaintiff made the same offer to Lang, Ukrainetz, and Pizinger of August 24, 2001. Pl.'s Decl. at p. 14-16. Plaintiff's offer was subsequently rejected by Lang. Id. As Plaintiff had not obtained an alternate position at PSC, his position was officially eliminated as of August 30, 2001.
II. Procedural History
On April 19, 2002, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging claims of race, color, national origin, and age discrimination. After receiving his Notice of Right to Sue, Plaintiff filed his Original Complaint in this case on December 6, 2002. First, Plaintiff claims that Defendant discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), when he was denied promotion in June 2001, and when he was terminated on August 30, 2001. See 29 U.S.C. § 623, et seq. Plaintiff also asserts two claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), claiming that he was discriminated against on the basis of his race and national origin. See 42 U.S.C. § 2000e, et seq. Specifically, Plaintiff claims that he was discriminated against when (1) he was not promoted in July 2001, (2) his offer to work for Defendant for $1 a year for four years was rejected, and (3) he was terminated on August 30, 2001. Finally, Plaintiff asserts claims for unlawful race discrimination under 42 U.S.C. § 1981. Defendant now moves for summary judgment as to each of these claims.
III. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to her case, and on which she bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id. IV. Desert Palace and the McDonnell Douglas Framework
It is well settled that, in order to survive summary judgment in a Title VII discrimination claim, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. Shackelford v. DeLoitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). To establish a prima facie case of discrimination, a plaintiff may prove his claim through direct or circumstantial evidence of discrimination. In the absence of direct evidence, Title VII claims at the summary judgment stage are analyzed under the tripartite burden-shifting test established by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See also Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). The Supreme Court has applied the same burden-shifting framework to claims brought under the ADEA. See O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993).
In his Response to Defendant's Motion for Summary Judgment, Plaintiff argues that, after the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), "plaintiffs [in employment discrimination cases] are no longer bound by the McDonnell Douglas framework." Pl.'s Resp. at p. 2. Plaintiff asserts that, "[b]ecause a jury can conclude from [his] direct and circumstantial evidence that his age, race, and/or national origin motivated PSC's actions towards him, [Plaintiff] is entitled to a mixed-motive instruction which shifts the burden of proof to PSC to prove that it would have taken the same actions towards [him] even in the absence of discriminatory motive." Id. Plaintiff's interpretation of Desert Palace is wholly incorrect, and the Court rejects his argument that the McDonnell Douglas framework is no longer applicable. In Desert Palace, the Supreme Court held that a plaintiff was not required to show direct evidence of discrimination in order to obtain a mixed-motive jury instruction under 42 U.S.C. § 2000e-2(m). See Desert Palace, 539 U.S. at 95-96. This narrow holding has absolutely no bearing on the applicability of the McDonnell Douglas framework to Defendant's Motion for Summary Judgment. The Supreme Court did not in any way suggest in Desert Palace that it intended to alter the burden-shifting framework that it had established, upheld, and applied for over thirty years. Other courts in the Fifth Circuit to have addressed the issue have concluded that the applicability of the McDonnell Douglas framework has not been altered by Desert Palace, and this Court agrees. See, e.g., Read v. BT Alex Brown Inc., 72 Fed. Appx. 112 (5th Cir. 2003) (citing to Desert Palace, but applying the McDonnell Douglas framework to plaintiff's sex and age discrimination claims); Winter v. Bank of America, 2003 U.S. Dist. LEXIS 24790 (N.D.Tx. 2003); Owens v. Excel Management Services, Inc., 2004 U.S. Dist. LEXIS 2887 (N.D.Tx. 2004).
V. Plaintiff's Non-Promotion Claim
Plaintiff claims that he was discriminated against in violation of the ADEA and Title VII when he was not promoted in June 2001. See 29 U.S.C. § 621, et seq.; 42 U.S.C. § 2000e, et seq. a. The McDonnell Douglas Framework
Under the McDonnell Douglas framework, Plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination in order to survive PSC's Motion for Summary Judgment. The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for the plaintiff's rejection. See Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). This burden on the employer is only one of production, not persuasion, involving no credibility assessments. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
As noted supra, the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas for Title VII cases is applicable to claims brought under the ADEA. See O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993).
If the employer carries its burden, the mandatory inference of discrimination created by the prima facie case drops out of the picture. Id. In order to survive summary judgment, a plaintiff must then raise a genuine issue of material fact as to whether the employer's proffered reason was merely a pretext for discrimination. Id. ( citing Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)). The plaintiff may do so "by providing evidence that he was `clearly better qualified' than the employee selected for the position at issue." Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 356-57 (5th Cir. 2001). The key issue is "whether the employer's selection of a particular applicant over the plaintiff was motivated by discrimination, and evidence of the plaintiff's superior qualification is thus probative of pretext." Id.
b. Plaintiff Has Shown a Fact Issue as to Pretext
PSC argues that it is entitled to summary judgment because, even assuming Plaintiff has established a prima facie case of discrimination, PSC has articulated a legitimate, non-discriminatory reason for his non-promotion, and Plaintiff has not established that this proffered reason was a pretext for discrimination. PSC contends that Prentice was selected over Plaintiff for the Business Lead position because Prentice (1) had served as the account manager for the Wyndham account, iQom's only account, and was therefore "knew the day-to-day workings of iQom intimately," and (2) had worked at iQom longer than Plaintiff and had been involved in the development of iQom's initial business and financial plans. Having thus articulated a legitimate, non-discriminatory reason for selecting Prentice for the promotion, the burden shifts back to Plaintiff, who, in order to survive summary judgment, must raise a genuine issue of material fact as to whether Defendant's proffered reason was merely a pretext for discrimination.
Plaintiff argues that he has established a fact issue as to pretext because he was "clearly better qualified" than Prentice for the Business Lead position. In support of this argument, Plaintiff cites to the declarations of Pat Golden, Kris Subbarao, John Holland, and Ernest Conrad. Plaintiff claims that these four individuals were "the true founders of iQom," and that the had "in depth working experience and personal knowledge of the qualifications of both Lall and Prentice." Pl.'s Resp. at p. 29-30. The four declarations offer nearly identical statements in support of Plaintiff's qualifications for the Business Lead position:
[Plaintiff] brought to the iQom team an in-depth knowledge of the energy industry, account management skills, a successful history of creating and building large new accounts for PSC. A proven ability to lead sales efforts, and strong management and leadership skills. [Plaintiff] also holds an undergraduate degree in electrical engineering and graduate degrees in industrial engineering and operations research, which were directly applicable to the work the iQom team was performing. [Plaintiff's] experience, knowledge, and skills, were well suited for the iQom team because the iQom concept was a new business effort within PSC which needed experienced leaders who had a track record of growing new businesses within PSC. Prentice lacked the above attributes which [Plaintiff] brought to the team. App. to Pl.'s Resp., Ex. 4., p. 63.See also App. to Pl.'s Resp., Ex. 5-7. In addition, Prentice did not have an undergraduate degree at the time of the promotion, and his work experience at iQom did not involve significant management experience, but was purely technical. See App. to Pl.'s Resp., Ex. 5., p. 66; App. to Pl.'s Resp., Ex. 6., p. 68 ("Prentice went from a purely technical, information technology position within the iQom team to a managerial position"). In their declarations, Golden, Subbarao, Holland, and Conrad expressed that, based on their experience and in their opinion, Prentice was not qualified for a management position like the Business Lead position. See App. to Pl.'s Resp., Ex. 5., p. 66 ("[Prentice] was only qualified to perform purely technical hardware based tasks. Even in the handling of the Wyndham account, . . . Prentice relied heavily on the assistance of Gene Kallbrier."); App. to Pl.'s Resp., Ex. 3., p. 60 ("Prentice . . . was better suited for a technical role with limited management responsibilities"). All four individuals stated that they were "shocked" and "very surprised" when they learned of Ukrainetz's decision to promote Prentice rather than Lall, and Golden characterized the promotion decision as one that "came out of left field." App. to Pl.'s Resp., Ex. 3., p. 60.
It is well settled that a plaintiff may create a fact issue as to whether an employer's legitimate, non-discriminatory reason is a pretext for discrimination "by providing evidence that he was `clearly better qualified' than the employee selected for the position at issue." Celestine, 266 F.3d at 356-57 (5th Cir. 2001). The Fifth Circuit has made clear, however, that "the bar is set high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are `of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'" Id. ( quoting Denies v. Dept. of Prot. Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999); see also EEOC v. Louisiana Office of Community Services, 47 F.3d 1438, 1445 (5th Cir. 1995) (difference in qualifications to that of the person selected must be "so apparent as to virtually jump off the page and slap us in the face."). The Court finds that Plaintiff has demonstrated a fact issue as to whether he was "clearly better qualified" than Prentice.
PSC does not appear to dispute that Plaintiff was an extremely well-credentialed, well-qualified candidate for the Business Lead position. Rather, PSC's contention is merely that Prentice was better suited for the position. PSC claims that the scope and purpose of iQom had changed substantially from the time of its inception. Specifically, PSC has established through Lang's deposition testimony that iQom was not going to be a major focus of either SMG or PSC in the future. Moreover, Lang testified that iQom was not eliminated earlier because of the Wyndham Account. Thus, PSC contends that it preferred Prentice for the Business Lead position because of his day-to-day experience with the Wyndham account. Moreover, with respect to the Golden, Subbarao, Holland, and Conrad declarations, PSC argues that they are not sufficient to create a fact issue as to whether Plaintiff was "clearly better qualified" because they were not familiar with the qualifications it was seeking for the Business Lead position. The Court does not agree. Golden, Subbarao, Holland, and Conrad each had several years of experience working with Prentice and Plaintiff, and were familiar with both of their work experiences and qualifications. Moreover, as noted by Plaintiff, Golden, Subbarao, Holland, and Conrad were founding members of iQom. Even if the scope and focus of iQom had changed, PSC has not presented any evidence to suggest that Golden, Subbarao, Holland, and Conrad were unaware of these changes, or even that they were not at iQom when these changes were made. More importantly, it is undisputed that the Business Lead position was a management position, and Golden, Subbarao, Holland, and Conrad's declarations are certainly relevant to this issue. When viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to Plaintiff, the Court finds that Plaintiff has established a fact issue as to whether he was "clearly better qualified" than Prentice for the Business Lead position. Accordingly, PSC's Motion for Summary Judgment with respect to this claim is hereby DENIED.
IV. Plaintiff's Termination Claims
Plaintiff also claims that he was discriminated on the basis of his age, race, and national origin when he was terminated as part of PSC's RIF in August 2001. In order to establish a prima facie case of discriminatory discharge in connection with an RIF, a plaintiff must prove that (1) he is a member of a protected class, (2) he was qualified for the position he held, (3) he was discharged, and (4) after the discharge, other employees not a member of the plaintiff's protected class remained in similar positions. See Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990). With respect to Plaintiff's race and national origin discrimination claims, PSC contends that it is entitled to summary judgment because Plaintiff has not shown that other employees outside of his protected class were allowed to remain in similar positions.
Plaintiff also asserts that his termination was, at least in part, a result of his allegedly discriminatory non-promotion. Plaintiff contends that Prentice was not terminated as part of the RIF, and claims that if he had been properly promoted to the Business Lead position, he also would not have been terminated. This claim is inexorably tied to the propriety of PSC's decision not to promote him, and the proper place for its determination is at the trial on Plaintiff's non-promotion claim.
However, this section is limited to Plaintiff's separate claims of discriminatory termination, which are independent of his claims for discriminatory non-promotion. As discussed in more detail below, the Court finds that, to the extent that PSC's decision not to promote Plaintiff was proper, Plaintiff's separate claims for discriminatory termination fail as a matter of law.
a. Plaintiff's Title VII Claims
According to PSC, Plaintiff cannot satisfy the final element of the prima facie case because there were no positions similar to his own at iQom. Ukrainetz testified at his deposition that, at the time of the RIF, Plaintiff's position was "the only entirely nonbillable role. . . ." Plaintiff has not identified any other employees within iQom who were nonbillable or not supporting a billable account that were retained after the RIF, nor does Plaintiff dispute that he was in fact a nonbillable employee who was not supporting a billable account. Thus, Plaintiff has not established a prima facie case of race or national origin discrimination with respect to his termination, and PSC is entitled to summary judgment with respect to these claims. However, even if the Court was to assume that a prima facie case of discrimination had been satisfied, PSC would still be entitled to summary judgment for the reasons stated below with respect to Plaintiff's termination-based age discrimination claim.
Although Plaintiff states in his Response to Defendant's Motion for Summary Judgment that he "can easily establish that younger and non-Asian Indian employees were retained in the alleged RIF," nowhere in his brief does he actually identify any such employee.
b. Plaintiff's ADEA Claim
Defendant does not appear to contest that Plaintiff has established a prima facie case of age discrimination with respect to his termination claim. Rather, Defendant contends that it is entitled to summary judgment because Plaintiff has failed to create a fact issue as to whether its stated legitimate, non-discriminatory reason for his termination was a pretext for age discrimination. PSC asserts that Plaintiff's termination was the result of a financially driven Reduction-In-Force ("RIF"). PSC claims that it implemented neutral criteria in determining what positions would be eliminated under the RIF. Specifically, PSC contends that the positions subject to the RIF were chosen on the basis of whether they were billable to or directly supporting a billable SMG account. As his position was neither billable nor supporting a billable account, Plaintiff's position was selected for the RIF. The Fifth Circuit has expressly held that a RIF "is itself a legitimate, nondiscriminatory reason for discharge." EEOC v. Texas Instruments, 100 F.3d 1173, 1181 (5th Cir. 1996). Under the McDonnell Douglas framework, once the employer has articulated a legitimate, nondiscriminatory reason for the adverse employment action, the burden shifts back to the plaintiff. In order to survive PSC's Motion for Summary Judgment, Plaintiff must raise a genuine issue of material fact as to whether the employer's proffered reason was merely a pretext for discrimination.
In its Motion for Summary Judgment, Defendant notes that it "will not address whether Plaintiff can prove a prima facie case of discrimination under the ADEA based upon his selection for the RIF. . . ." Pl.'s Resp. at p. 12, n. 5.
Plaintiff also argues that "[b]y definition, if [PSC] cannot identify the person who made the decision to include [Plaintiff] in the reduction in workforce, it is impossible for Defendant to shift the burden of proof by articulating a legitimate, non-discriminatory reason for choosing [Plaintiff] to terminate." Pl.'s Resp. at p. 33. The Court rejects this argument, as Plaintiff has cited to no legal authority in support of this sweeping proposition. Moreover, as noted in its Reply brief, PSC has presented competent evidence with regard to the individuals involved in the decisionmaking process for the RIF.
Plaintiff contends that PSC's legitimate, nondiscriminatory reason for his termination was in fact a pretext for discrimination based on the statements made by Vicky Ponichtera and Sylvia Kent. Specifically, Plaintiff claims that Ponichtera stated that "if you were employed by PSC and you were over age 45, your job was in jeopardy," and Kent stated that she had noticed a pattern of layoffs of senior, highly paid employees at PSC. See Pl.'s Compl. At p. 3-4; Pl.'s Resp. at p. 32. Plaintiff makes clear that he is not relying on Ponichtera's and Kent's statements as direct evidence of discrimination. Rather, Plaintiff claims that the statements "constitute corroborative evidence that PSC was engaging in a pattern of systematically terminating older workers." At best, these statements constitute extremely weak corroborative evidence of discriminatory motive on the part of PSC. Plaintiff has provided no other evidence to corroborate the statements made by Ponichtera and Kent, and without more, their statements alone are not sufficient to raise a fact issue as to whether PSC's RIF was a pretext for discrimination. Moreover, as noted by PSC, the statements constitute inadmissible hearsay that the Court cannot consider as competent summary judgment evidence.
Plaintiff also argues that the rejection of his offer to work for $1 a year for four years is evidence of pretext. Plaintiff asserts that "by agreeing to work for $1, the reason for terminating [Plaintiff] (to cut costs) is taken completely out of the picture. This evidence clearly puts at issue whether reducing costs was the true reason for getting rid of [Plaintiff]." Plaintiff's argument is merely an attempt to impose his own business judgment on his employer. Plaintiff's argument is based on the assumption that the only cost that PSC was concerned with was that of his salary. However, Lang's deposition testimony makes clear that there were other associated costs that were obviously of concern to PSC management, including travel costs, overhead, and facility costs. Thus, contrary to Plaintiff's assertion, the fact that he was willing to work for $1 in no way removed the reason for the RIF and his termination "completely out of the picture." The denial of his offer in no way demonstrates that his termination under the RIF was a pretext for discrimination. Accordingly, the Court hereby GRANTS PSC's Motion for Summary Judgment with respect to Plaintiff's termination-based discrimination claims.
VI. Plaintiff's Claim Arising Out of the Rejection of His Reduced Salary Offer
Plaintiff also claims that PSC discriminated against him on the basis of his race and national origin when his offer to work for $1 a year for four years was rejected. Again, Plaintiff must first establish, by a preponderance of the evidence, a prima facie case of race discrimination in order to survive PSC's Motion for Summary Judgment. Under the McDonnell Douglas framework, a prima facie case of race discrimination is established by the plaintiff once he proves that: (1) he is a member of a protected class; (2) that he was qualified for his position; (3) that he suffered an adverse employment action; and (4) that others similarly situated were treated more favorably. See generally Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 510 (5th Cir. 2001); Shackelford, 190 F.3d at 404.
PSC is entitled to summary judgment on Plaintiff's Title VII claims arising out of the rejection of his $1 a year, reduced salary offer because Plaintiff has not established a prima facie case of discrimination with respect to these claims. It is undisputed that, based on his race and national origin, Plaintiff was a member of a protected class. In addition, PSC has not contested the fact that Plaintiff was qualified for his position. With respect to the third element of the prima facie case, the Court will assume for purposes of this Motion that PSC's rejection of Plaintiff's offer is an actionable adverse employment action. Plaintiff has failed to establish a prima facie case of discrimination, however, because he has not presented any evidence to indicate that similarly situated employees outside of his protected class were treated differently than he. Plaintiff has not identified a single employee outside of his protected class that made a similar offer to work at a reduced salary to PSC, and whose offer was accepted. Without such a showing, Plaintiff has not established even a prima facie case of discrimination, and PSC is entitled to summary judgment.
The Fifth Circuit has adopted a standard where only "ultimate hiring decisions, such as hiring, granting leave, discharging, promoting, and compensating satisfy the adverse employment action element." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citation omitted); see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997).
VII. Plaintiff's § 1981 Claims
Iit is well established that "claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title VII." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996) ( citing Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)). As such, the Court finds that Plaintiff's § 1981 claims fail for the same reasons set forth above with respect to his Title VII claims.
VIII. Conclusion
Defendant's Motion for Summary Judgment is hereby GRANTED with respect to Plaintiff's § 1981 claims, his claims arising out of his termination as part of PSC's RIF, and his claims arising out of the rejection of his offer to work for a reduced salary. However, the Court finds that Plaintiff has created a fact issue with respect to his claims for discriminatory non-promotion. Accordingly, PSC's Motion for Summary Judgment is DENIED with respect to Plaintiff's non-promotion claims.
It is so ordered.