Opinion
Civil Action No. 3:02-CV-687-L.
April 30, 2004
ORDER
Before the court is Defendant's Motion for Summary Judgment, filed February 6, 2004. After careful consideration of the motion, response, reply, competent evidence, record and applicable law, the court grants in part and denies in part Defendant's Motion for Summary Judgment.
I. Factual and Procedural Background
This is an employment discrimination and retaliation case. Plaintiff Marcus L. Nelson ("Plaintiff" or "Nelson") is a black male. Nelson was employed by Defendant Bank of America, Inc. ("Defendant" or "BOA") from June 1999 until December 4, 2001. Prior to his employment with BOA, Nelson had approximately seventeen years of professional experience, including working for ARCO Oil and Gas Company, Boutte Elmore Company, Mbank/Bank One, and Pacific Southwest Bank, and running his own business, Kokelbug Petroleum Products, Inc.
BOA hired Nelson as a Business Support Manager for BOA's Dallas Lockbox Operation ("Lockbox"), which is part of BOA's Treasury Management Services division ("TMS"). The Lockbox facilitates millions of large business transactions each year among BOA's commercial clients.
As the Business Support Manager, Nelson supported the Dallas Lockbox from a business perspective through financial planning, financial performance review, and processing, posting and reconciliation of commercial transactions. Nelson supervised approximately fifty to sixty employees. Nelson reported to the Dallas Lockbox Site Manager, who reported to BOA's Senior Vice President for all Lockbox operations.
Around the time Nelson was hired by BOA, Dallas Lockbox was experiencing ongoing problems, including processing and customer issues, low morale and high turnover, that decreased its overall efficiency. These problems were exacerbated by the recent installation of a new computer imaging system that processed all Lockbox transactions.
In mid-to-late July 1999, Nelson's supervisor was terminated, and Nelson was asked to assume the Site Manager position in an interim capacity until a replacement was found. As the interim Site Manager, Nelson supervised approximately five hundred people. In September 1999, a permanent Site Manager was hired, who was later replaced by Will Neinast ("Neinast") in April 2000.
Beginning in mid-1999, Bob Lyons ("Lyons"), a Senior Vice President who managed two Lockbox facilities on the West Coast, was directed to "straighten-out" the Dallas Lockbox operations. To that end, Lyons, among other things, evaluated Dallas Lockbox managers. During this process, Lyons also had an in depth discussion with Nelson regarding Nelson's background, work experience and future plans. After this discussion, Lyons recommended to his boss, Joe Ervin, the then Senior Vice President over all Lockbox operations, that Nelson be retained in the Dallas Lockbox operation. Lyons' consulting role in Dallas concluded in early Spring 2000, shortly after Don Sanders ("Sanders") replaced Ervin as the Senior Vice President over all Lockbox operations. Eventually, the Dallas Lockbox's overall efficiency increased.
In April 2000, Neinast was promoted to the Dallas Lockbox Site Manager position. Nelson thus reported to Neinast, who reported to Sanders. Neinast's initial impression of Nelson was favorable.
In Spring 2001, BOA submitted a bid to the United States Treasury Department ("the Treasury Department") to open and operate tax payment processing centers ("the IRS centers") in the Dallas area and the Atlanta area. BOA already operated two such centers on the West Coast for which Lyons was responsible. Lyons was on the team which was creating the bid for the additional IRS centers and would be responsible for the centers if the bid was awarded to BOA. Because the centers would have to be opened within seven months of the bid award, Lyons began evaluating potential candidates for the IRS centers shortly after submitting the bid but before the bid was awarded.
On May 3, 2001, the Treasury Department awarded the IRS centers bid to BOA. Lyons had already identified two Atlanta-based candidates for the Atlanta IRS Site Manager position and had identified Nelson as a candidate for the Dallas IRS Site Manager position. Neinast recommended Nelson for the position.
Upon learning that BOA had won the bid, Debbie Colby ("Colby"), the Nationwide Business Support Manager for BOA, expressed her interest in the Dallas IRS Site Manager Position. Colby is a white female. Sanders, who was Colby's direct supervisor, recommended Colby for the position.
Prior to realizing that Colby was being considered for the position, Neinast told Nelson that he "had a very strong possibility of moving into [the Dallas IRS Site Manager] role." Pl. App. at 495:24-25. In an effort to reassure Nelson, Neinast recounted a story from early in his career when he was interviewing for a new position:
It was a big opportunity for me and I was nervous about that, and my manager explained to me that the individual I would be interviewing with felt very positive about my background, felt very good about my opportunity in that role, and as long as I did not spit in his face, I would probably receive the job.
Pl. App. at 495:9-14. In light of the context of the statement and Neinast's efforts to reassure him, Nelson took this statement to mean that the job was his unless he engaged in highly unprofessional or disastrous conduct. Lyons, however, ultimately selected Colby for the position. Nelson expressed his dissatisfaction regarding this decision to Neinast.
After Colby was selected for the Dallas IRS Site Manager position, BOA needed a replacement for her old position, Nationwide Business Support Manager. The position reported directly to Sanders. At that time, Sanders was aware that BOA had made the decision to standardize the Lockbox process within one organization and that as a result, fourteen Lockbox processing locations and several hundred employees would soon transfer to TMS. Thus, he believed that finance would account for the majority of the responsibilities of the Nationwide Business Support Manager position. Several individuals applied for the position, including Nelson and Greg Reno ("Reno"). Reno had previously worked for BOA but had been laid off pursuant to a nonperformance-related reduction-in-force. After interviewing Nelson and Reno, Sanders selected Reno for the position.
Immediately after Reno was hired, the Dallas Lockbox managers, including Neinast and Nelson, and other managers with TMS, including Lyons, met in Atlanta to discuss the 2002 budget. Both Lyons and Neinast were troubled by Nelson's behavior at the meeting, as he did not voluntarily participate in the discussions, left a meeting for extended periods of time, and arrived late to several meetings; they discussed their concerns with Nelson. As Nelson does not address this matter regarding his response to Lyons' and Neinast's concerns, the record sheds no light.
In the Fall of 2001, Neinast initiated Nelson's annual performance plan development process, referred to as the Manage Your Performance ("MYP") plan. Nelson had experience with the MYP process from both a manager's and associate's perspective. As Nelson had not yet submitted his MYP plan, Neinast met with him on October 24, 2001 to discuss it. Neinast verbally identified Nelson's strengths and weaknesses; Nelson disagreed as to the areas identified for improvement. At the conclusion of the meeting, Neinast instructed Nelson to complete the MYP plan. In response, Nelson told Neinast that he was searching for another job outside BOA, and if the appropriate opportunity presented itself, he would leave before the end of the year.
The following day, Neinast wrote to Nelson accepting his resignation and asking him to give two-weeks notice before terminating his employment. He also informed Nelson that he would begin searching for Nelson's replacement. Nelson responded, in writing, that he had not resigned his employment even though he was "aggressively looking at opportunities outside of Bank of America." Def. App. at 99.
As Nelson was not immediately resigning, Neinast instructed Nelson to complete his MYP plan. Nelson forwarded a draft MYP plan to Neinast but requested further discussion before he included the developmental needs that Neinast had previously identified. In response, Neinast provided Nelson a written summary of Nelson's developmental needs, dated November 6, 2001. In this document, Neinast warned Nelson to "show immediate and sustained improvement" or face disciplinary action, up to and including termination. On November 13, 2001, Nelson submitted a final version of his MYP plan. Within his MYP plan, Nelson criticized Neinast's management style and BOA's culture; he also rebutted each of the developmental needs identified by Neinast.
On November 14, 2001, Neinast contacted the human resources department to find out if there was any evidence to corroborate an allegation that Nelson had "used derogatory language towards women." The human resources department record regarding Neinast's contact on this day indicates that he was "looking to term (sic) [M]arcus." Pl. App. at 110. Neinast subsequently encouraged Nelson to contact the human resources department, given Nelson's concerns regarding his management style. Nelson did not do so, believing it futile.
Neinast again contacted the human resources department this time regarding Nelson's MYP plan. After consulting with the human resources department, Neinast terminated Nelson's employment on December 4, 2001, for loss of trust and confidence in Nelson's responsibility and commitment to BOA.
In May 2002, Neinast hired Ron Claiborne, a black male, to be the Dallas Lockbox Senior Operations Manager. As such, Claiborne's responsibilities, included Nelson's former duties as well as additional duties. In short, Claiborne's role as Senior Operations Manager is much broader than was Nelson's as Business Support Manager.
On January 3, 2002, Nelson filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), contending race discrimination and retaliation. He subsequently received a right-to-sue letter. On April 3, 2002, Nelson filed suit, contending violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. Specifically, Nelson contends that BOA discriminated against him because of his race by failing to promote him on two occasions and by terminating his employment. He also contends that BOA retaliated against him by terminating his employment. BOA filed for summary judgment. The court now considers this motion.
II. Summary Judgment Standard
Summary judgment shall be rendered when 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 judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Discrimination
Nelson contends that he was discriminated against because of his race when (1) he was not promoted to the Dallas IRS Site Manager position; (2) he was not promoted to the Nationwide Business Support Manager position; and (3) he was terminated. Nelson brings his claims of race discrimination under Title VII and § 1981. A plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000 (1998). "Direct evidence" is "evidence which if believed, proves the fact [in question] without inference or presumption." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003) (citations omitted).
The same standard of proof applies to disparate treatment claims under Title VII and § 1981 when they are urged as parallel causes of action. Shackelford v. Deloitte Touche, LLP., 190 F.3d 398, 403 n. 2 (5th Cir. 1999); Baltazar v. Holmes, 162 F.3d 368, 373 (5th Cir. 1998); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). As the underlying facts of Nelson's Title VII and § 1981 discrimination claims are the same, and the evidentiary burdens of these statutes are similar, his claims will be analyzed together.
Nelson has presented no direct evidence of discrimination; therefore, he must rely on the burden-shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973), to create a presumption of intentional discrimination. See Russell, 235 F.3d at 222; see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000). To create such a presumption, Nelson must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. If he succeeds, BOA must then articulate a legitimate, nondiscriminatory reason for its action. Id. Finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Nelson must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See Id.; see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Byers, 209 F.3d at 425-26.
1. Failure to Promote
To establish a prima facie case of racial discrimination for denial of a promotion, Nelson must prove that "(1) he is a member of a protected class; (2) he was qualified for the position; (3) he was not promoted; and (4) either the position was filled by someone not in the protected class, or the person was not promoted because of his race." Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001) (citing Rutherford v. Harris County, Texas, 197 F.3d 173, 179 (5th Cir. 1999)).
a. Dallas IRS Site Manager Position i. Prima Facie Case
BOA does not dispute that Nelson can establish a prima facie case for the Dallas IRS Site Manager position. The evidence establishes that Nelson is a black male; he was qualified for the position; he was not promoted; and a white female was promoted into the position.ii. Legitimate, Nondiscriminatory Reason
The court thus turns to whether BOA has articulated a legitimate, nondiscriminatory reason for failing to promote Nelson. BOA contends that Nelson was not promoted to the Dallas IRS Site Manager position because Colby was better qualified for the position. BOA presented testimony from Lyons, the decisionmaker, regarding the reasons he chose Colby over Nelson for the position. Specifically, he testified that he determined that Colby was a better candidate for the position because she had a greater scope of leadership responsibility and more knowledge of BOA managers; she had operated independently on a nationwide level; and she was highly regarded by her peers and supervisors. He further testified that based on his past interactions with both Nelson and Colby, he found Colby to be more creative and goal oriented than Nelson. In short, he testified that "her accomplishments outweighed [Nelson's] accomplishments." Def. App. at 271:19-20. The court determines that BOA has articulated legitimate, nondiscriminatory reasons for not promoting Nelson. See Jefferies v. Harris County Cmty. Action Ass'n, 693 F.2d 589, 590 (5th Cir. 1982) ("[T]he promotion of a better qualified applicant is a legitimate and nondiscriminatory reason for preferring the successful applicant over the rejected employee who claims that the rejection was discriminatory."). BOA has, therefore, met its burden.
iii. Pretext
The burden shifts back to Nelson to demonstrate that BOA's articulated reasons are a pretext for intentional discrimination. After a Title VII case reaches the pretext stage, the question for summary judgment is whether a rational factfinder could find that BOA intentionally discriminated against Nelson on the basis of his race. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).A "plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer's discriminatory animus or the falsity of the employer's legitimate nondiscriminatory explanation." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). "Pretext-plus" is not required to support an inference of retaliatory discrimination. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000).
"[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminate," and may therefore be enough to prevent summary judgment or judgment as a matter of law. See Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 148 (2000); Sandstad, 309 F.3d at 897. This showing, however, is not always enough to prevent summary judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created 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." Reeves, 530 U.S. at 148. On the other hand, in the context of an unlawful discrimination claim, summary judgment is inappropriate "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 [national origin] was a determinative factor in the actions of which [a] plaintiff complains." Vadie v. Mississippi State Univ., 218 F.3d 365, 373 n. 23 (5th Cir.), reh'g denied, 232 F.3d 212 (5th Cir. 2000), cert. denied, 531 U.S. 1113 (2001) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996)) ( en banc).
Nelson contends that BOA's proffered reason for failing to promote him to the Dallas IRS Site Manager position is pretext. In support of his argument, Nelson first contends that he is clearly better qualified than Colby. When one is using qualifications as a basis to show pretext, the Fifth Circuit has made it abundantly clear that for the disparities in the qualifications to infer intentional discrimination they must be "so apparent as virtually to jump off the page and slap [the court] in the face." Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993). In other words, the plaintiff must be "`clearly better qualified' (as opposed to merely better or as qualified) than the [employee] who [is] selected." EEOC v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) (ADEA case).
This case arose in the context of a district court's posttrial order entering judgment as a matter of law The standards applied by the court in evaluating a motion for summary judgment are the same as those applied in evaluating a motion for judgment as a matter of law. Pratt, 247 F.3d at 606 n. 3.
Lyons described the hiring criteria for the IRS Site Manager positions as follows:
I believed that I needed to hire internal candidates who were known to other managers within [BOA]. This way, I could verify their performance and ensure the facilities were staffed with the best candidates. Furthermore, I placed critical importance on the potential candidates' knowledge of [BOA's] regions and managers because I wanted the managers to be able to quickly hire their own very competent managers. Finally, I believed that the positions would require self-starters who could build a function from scratch and that were goal-oriented to meet the demands of the new position. Def. App. at 305 ¶ 6. Lyons was also looking for "people who had experience managing people" (Pl. App. at 192:12-14), as the IRS Site Managers were expected to manage approximately sixty people during nonpeak periods and two-to-three hundred people during peak periods (Pl. App. at 630-31:25-6).
Both Nelson and Colby have comprehensive professional experience. Nelson holds a bachelor's degree in business administration with a major in banking and finance and a minor in economics and accounting. At the time of this vacancy, he had nineteen years of professional experience, ten of which were with other banks and two were with BOA. All two years of his BOA experience were spent in the Dallas Lockbox operations. Also while with BOA, Nelson developed the Human Capital Management position, which served as a liaison between the human resources department and the Lockbox to coordinate employee reward and recognition programs. Additionally, he was instrumental in the creation of the Lockbox university, a program designed for employee retention. As the Business Support Manager, Nelson supervised between fifty to sixty employees, and for approximately two months in 1999, when he assumed, on an interim capacity, the position of Site Manager, he supervised over 500 employees. During his tenure with BOA, Nelson worked with employees of all levels from different departments and regions within BOA.
Colby, on the other hand, had almost twenty-five years of experience with BOA at the time of the vacancy. During her tenure with BOA, she gained experience in finance, budget planning, real estate, audit compliance, project coordination and associate training. Colby was recognized as a "High-Potential" candidate by BOA's upper-management based upon her distinguished level of performance as the Nationwide Business Support Manager. A "High-Potential" candidate is an individual who has demonstrated distinguished performance and showed significant potential for excellent performance in upper-management positions. As the Nationwide Business Support Manager, she worked on a nationwide level with managers from many functions and was very well-regarded. In 1998 through 1999, Lyons worked with Colby extensively when BOA and NationsBank merged; Colby "had a major role" in facilitating the nationwide merger and integrating the finance and budgeting methodologies used by both banks. During her tenure, she gained experience supervising employees, albeit the most employees she ever supervised was twenty-five.
A comparison of Nelson's qualifications with those of Colby does not reveal disparities that are "so apparent as virtually to jump off the page and slap [the court] in the face." See Odom, 3 F.3d at 847. The court is therefore hesitant to substitute its determination for that of Lyons' given his experience and expertise in this field. See id.
Nelson next contends that the circumstances surrounding Colby's selection support an inference of pretext. Specifically, Nelson contends that the subjective nature of the selection criteria coupled with Colby's preselection and the discrepancy in testimony regarding whether telephone interviews were conducted prior to the face-to-face interviews is sufficient from which to infer pretext and intentional discrimination. The court agrees. "The mere fact that an employer uses subjective criteria is not . . . sufficient evidence of pretext." Manning v. Chevron Chemical Co., L.L.C., 332 F.3d 874, 882 (5th Cir. 2003) (emphasis added). Here, Nelson presents sufficient evidence to create a question of material fact regarding whether the subjective criteria was used with discriminatory intent. Accordingly, BOA is not entitled to summary judgment on Nelson's failure to promote claim regarding the Dallas IRS Site Manager position.
Nelson has brought forth sufficient evidence from which a fact finder could infer that Colby was preselected for the position. The evidence includes (1) the e-mail drafted by Lyons four days before Nelson and Colby were interviewed for the position announcing that Colby had accepted the position; (2) Neinast's testimony that he learned from Lyons, via a voice message, before the interviews had been conducted that Colby had been selected for the position; and (3) Neinast's testimony that he believed that the selection of Colby prior to interviewing all the qualified candidates violated departmental selection procedures.
The issue of whether the telephone interviews occurred is relevant because BOA contends that Nelson was treated no differently than the similarly situated candidates that applied for the Atlanta IRS Site Manager position. BOA presented undisputed evidence that telephone interviews were conducted during the Atlanta selection process. Here, Nelson has brought forth sufficient evidence to establish a fact question regarding whether Lyons is being truthful in his testimony that he conducted telephone interviews in the Dallas selection process. While the evidence establishes that both Nelson and Colby spoke to Lyons over the telephone, Nelson contends that his conversation did not amount to an interview, and Colby testified that she expressed her interest in the position but did not discuss the position or make a "pitch" for herself. Pl. App. at 591-92:14-7. Nelson further presented records kept by the BOA recruiter assigned to this position that do not indicate that telephone interviews were conducted. Nelson has therefore raised a fact question regarding whether he was treated differently than similarly situated employees.
b. Nationwide Business Support Manager Position
i. Prima Facie Case
BOA contends that Nelson cannot establish a prima facie case for the Nationwide Business Support Manager position because he did not submit a good faith application for the position. Specifically, BOA relies on the documentation that Nelson provided to the EEOC in which he states that he applied for this position to "ensure that the pattern of discrimination would continue." Def. App. at 134. Nelson counters that regardless of his motivation for applying for the position, he, nonetheless, actually applied for the position and was interviewed. The court agrees. As this burden is a relatively light one, the court determines that Nelson has established a prima facie case. See Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999).
ii. Legitimate, Nondiscriminatory Reason
BOA must now articulate a legitimate, nondiscriminatory reason for failing to promote Nelson to the Nationwide Business Support Manager position. BOA contends that Nelson was not selected because Reno was better qualified than he. Specifically, Sanders, the decisionmaker, testified that he chose Reno because Reno's financial skills were stronger than those of Nelson's; he doubted Nelson's general competency in finance based on past experiences with him; he personally observed Reno's leadership skills during past work experiences; and Nelson was indifferent during the interview. The court determines that BOA has met its burden by articulating legitimate, nondiscriminatory reasons for failing to promote Nelson to the Nationwide Business Support Manager position.
Nelson contends that Sander's testimony is not credible because "he is a central player in this entire drama and possesses a stake in every decision. . . ." Pl. Resp. at 41. While the same can be said about Nelson, the court is not making credibility assessments at the summary judgement stage. The court, instead, must determine whether BOA has introduced evidence that, if true, would permit the conclusion that the failure to promote Nelson was nondiscriminatory. See Long v. Eastfield College, 88 F.3d 300, 305 (5th Cir. 1996). Nelson does not contend that BOA failed to articulate legitimate, nondiscriminatory reasons for failing to promote him; instead, he contends that such reasons are pretext.
iii. Pretext
The burden shifts back to Nelson to demonstrate that BOA's articulated legitimate, nondiscriminatory reasons are pretext for intentional discrimination. In support that pretext exists, Nelson contends that he was better qualified than Reno and that he was not given a fair opportunity to interview for the position.
The court first addresses whether Nelson was "clearly better qualified" than Reno. It is undisputed that the position required a strong background in finance. Reno holds a bachelor's degree in business administration. He worked for BOA for approximately twenty-six years before he was laid off pursuant to a nonperformance-related reduction-in-force in 2000. During those twenty-six years, Reno worked exclusively in BOA's finance group. Immediately before the layoff, Reno was a business unit controller in the finance department. Reno had significant experience in budgets, auditing and managerial accounting as well as a working knowledge of BOA's accounting procedures. On the other hand, in addition to the experience previously discussed, Nelson also had accounting and finance experience gained through his employment with entities other than BOA. Nelson contends that his experience is more diverse than Reno's because he has both finance and operational experience.
The disparities in their qualifications are not of "such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen" Reno over Nelson for the position. See Deines v. Texas Dep't of Protective and Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999). A court's evaluation is inherently less reliable than that by those charged with evaluating candidates, and an inference of pretext therefore is inappropriate unless the difference in qualifications (as evaluated by the court) is great. Louisiana Office of Cmty. Servs., 47 F.3d at 1445. As the disparities in their qualifications are not "so apparent as virtually to jump off the page and slap [the court] in the face," the court determines that Nelson was not "clearly better qualified" than Reno so as to establish pretext. See Odom, 3 F.3d at 847.
The court next considers Nelson's contention that he was deprived of a fair opportunity to interview for the position. In support, Nelson relies on an apparent discrepancy between Colby's testimony that she discussed the vacancy with Reno over lunch and Reno's testimony that he did not discuss the vacancy with Colby. Nelson contends that this discrepancy coupled with the fact that Colby "strongly recommended" Reno amounts to pretext. The court disagrees. It is undisputed that Colby was not the decisionmaker, although she did recommend Reno for the position and ranked Nelson second for the position. Sanders, however, testified that he alone decided to hire Reno relying on the recommendations of several managers, including Colby. Nelson provides no evidence of discriminatory animus on the part of Colby with respect to the recommendations she made. That she "strongly recommended" Reno is therefore not dispositive of any material fact. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) ("If the employee can demonstrate that others had influence or leverage over the official decisionmaker, and thus were not ordinary coworkers, it is proper to impute their discriminatory animus to the formal decisionmaker."). The same holds true with the discrepancy over how Reno became aware of the vacant position. This "evidence" does not establish, or raise a genuine issue of materia fact, that BOA's articulated reasons were pretext. Accordingly, BOA is entitled to summary judgment on the failure to promote claim.
2. Termination
To establish a prima facie case of discrimination for a termination, Nelson must establish: (1) that he is a member of a protected class; (2) that he was qualified for the position; (3) that he was terminated from the position; and (4) that he was replaced by a person outside the protected group, or that he was discharged because of his race. See Byers, 209 F.3d at 426-27.
BOA contends that Nelson cannot establish a prima facie case because he was replaced by a black male, Claiborne. Nelson contends that replacement by someone outside the protected class is not the only way to satisfy the fourth element of a prima facie case of discrimination; he contends that he can satisfy the fourth element with evidence that his termination was motivated by discriminatory intent. The court agrees. See Byers, 209 F.3d at 427 (referring to Nieto v. L H Packing Co., 108 F.3d 621, 624 n. 7 (5th Cir. 1997) (acknowledging Fifth Circuit authority allowing "courts to find a prima facie case even where an employee has been replaced by someone of the same race."); see also Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985) (holding that "the single fact that a plaintiff is replaced by someone within the protected [group] does not negate the possibility that the discharge was motivated [by] discriminatory reasons."). If a plaintiff was replaced by someone within the protected group, he must bring forth evidence that he otherwise was discriminated against to establish a prima facie case. See generally id.
Although Nelson cannot demonstrate that he was replaced by someone outside his protected group, this does not foreclose his ability to fulfill the fourth element of his prima facie case by raising genuine issues of material fact that he was otherwise discriminated against. To that end, Nelson relies on the fact that Claiborne was not hired until after he filed this lawsuit and that the stated reasons for his termination are false. That Claiborne was not hired until after Nelson filed this lawsuit is insufficient to establish that Nelson was otherwise discriminated against when he was terminated. Furthermore, for the reasons discussed later, Nelson presented insufficient evidence that BOA's stated reasons for terminating him are false. See infra. Accordingly, the court determines that Nelson has failed to establish a prima facie case, as he has not established that BOA otherwise discriminated against him. Accordingly, summary judgment on behalf of BOA on this claim is appropriate.
Nelson also contends that "Neinast has terminated several other African-American employees since firing Nelson." Pl. Resp. at 43. Nelson, however, does not cite to any evidence to support his contention. As unsubstantiated assertions are not competent summary judgment evidence, see Forsyth, 19 F.3d at 1533, the court will not consider this contention.
Even if Nelson had established a prima facie case, which he has not, BOA is still entitled to summary judgment as Nelson has not established, or raised a genuine issue of material fact, that BOA's proffered reasons are pretext. Nelson was terminated for loss of trust and confidence. In support, BOA presented Neinast's testimony regarding Nelson's conduct at the Atlanta meeting in August 2001 and the events surrounding the MYP process which culminated in his "loss of trust or confidence that [Nelson] would perform all functions and responsibilities of his position" (Def. App. at 188), and his "lack of confidence in [Nelson's] willingness to accept constructive feedback regarding his performance" (Def. App. at 183).
In support of his argument that BOA's proffered reasons are false, Nelson contends that Neinast "found himself stuck with a disgruntled employee" and "resolved his problem by finding a reason to terminate" him, as evidenced by Neinast's first unsuccessful attempt to terminate him by trying to corroborate an unsubstantiated rumor that he had used derogatory language. Pl. Resp. at 47. Even if true, this is not evidence of discrimination.
Nelson further contends that the purely subjective nature of the reasons for his termination establishes pretext. The court disagrees. The use of subjective criteria, with nothing more, is insufficient evidence of pretext. Manning, 332 F.3d at 882. Here, Nelson makes no attempt to identify any evidence that the subjective criteria was used in a discriminatory manner. Instead, he appears to contend that the use of subjective criteria is discrimination per se; yet, he does not point to, nor has the court found any, caselaw supporting that proposition. The court, therefore, will not second-guess BOA's personnel decision. See Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997). Moreover, there is no evidence that BOA treated Nelson differently from other similarly situated employees. As Nelson has failed to establish, or raise a genuine issue of material fact, that BOA's articulated reasons for his discharge were a pretext for intentional discrimination, summary judgment is appropriate on behalf of BOA on Nelson's discrimination claim.
B. Retaliation
Nelson contends that his termination was in retaliation to the complaints he made regarding BOA's "lack of commitment to diversity" and the complaint he made to Neinast that the decision not to promote him to the Dallas IRS Site Manager position was "racially motivated." The McDonnell Douglas burden-shifting framework is also applicable to retaliation claims. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Id.; Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id. Once the defendant does so, the inference of discrimination created by the prima facie case disappears, and the ultimate question becomes whether the protected conduct was the "but for" cause of the adverse employment action. Id.
"While this portion of the analysis may seem identical to the `casual link' step in the prima facie case, the burden here is more stringent." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir. 2001).
BOA contends that Nelson's complaints of a lack of diversity do not qualify as protected activity under Title VII. The court agrees. To qualify as protected activity under Title VII, a complaint must relate clearly to discrimination covered by Title VII. Byers, 209 F.3d at 427-28. An employee has engaged in protected activity if he has (1) "opposed any practice made an unlawful employment practice by [Title VII]," or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). Clearly, the only complaint that qualifies as protected activity is the complaint of racial motivation which Nelson made in June 2001, after he was not selected for the Dallas IRS Site Manager position.
Specifically, Nelson contends that he complained about "BOA's lack of commitment to diversity" to Neinast in a meeting on October 24, 2001 and in an e-mail dated October 25, 2001. Pl. Resp. at 44. The court notes that in the October 25, 2001 e-mail, Nelson complains about BOA's failure to practice "Inclusive Meritocracy" which is a category in BOA's leadership model. Def. App. at 99. "Inclusive Meritocracy" includes nine leadership characteristics which do not touch on race or any other protected trait. Def. App. at 101.
To the extent that BOA contends that the June 2001 complaint does not qualify as protected activity, the court will not consider this argument as it was raised for the first time in the reply brief. See Lacher v. West, 147 F. Supp.2d 538, 539 (N.D. Tex. 2001).
BOA disputes that such a complaint was made. Viewing the facts in the light most favorable to the nonmovant, the court finds, for summary judgment purposes, that such a complaint was made.
BOA next contends that Nelson cannot establish a prima facie case of retaliation because there is no probative evidence of a causal connection between his June 2001 complaint and his termination in December 2001. Specifically, BOA contends that the six months between the protected activity and the adverse employment action militates against a finding of a causal connection. BOA is correct that temporal proximity between the protected activity and the adverse employment action may be a significant factor in showing a causal connection or lack thereof. See Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001). The court in Evans noted that retaliatory conduct occurring four months after the protected activity could create an inference of a causal connection. Id. at 354. Moreover, the Fifth Circuit has held that the passage of fourteen months between the protected activity and the alleged retaliatory conduct is not "legally conclusive proof against retaliation." Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992). For these reasons, the court determines that a six month lapse of time, with nothing more, does not preclude the finding of a causal nexus.
"A `causal link' is established when evidence demonstrates that `the employer's decision to terminate was based in part on knowledge of the employee's protected activity.'" Medina, 238 F.3d at 684 (quoting Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). Here, Nelson allegedly made the complaint of discrimination to Neinast. Clearly, then, Neinast must have had knowledge of Nelson's protected activity. As his protected activity is not unwholly unrelated to his termination, the court determines that Nelson has met the "causal connection" element and thus has set forth a prima facie case of retaliation.
The burden then shifts to BOA to articulate a legitimate, nonretaliatory reason for terminating Nelson. As discussed previously, BOA contends that Nelson was terminated for loss of trust and confidence. See supra. Loss of trust and confidence by the management of a company is a legitimate, nondiscriminatory reason for termination. Therefore, BOA has satisfied its burden of articulating a legitimate, nonretaliatory reason for Nelson's termination.
Finally, the burden shifts to Nelson to establish, or raise a genuine issue of material fact, that BOA's articulated reasons were merely pretext for retaliation. In other words, Nelson must demonstrate that "but for" his June 2001 complaint, he would not have been terminated. Nelson contends that the use of subjective criteria, in conjunction with other evidence, establishes, or at the least creates a genuine fact issue, that BOA's proffered reasons are pretext.
As previously stated, the use of subjective criteria is in itself insufficient to establish pretext. Manning, 332 F.3d at 882. In other words, Nelson must come forward with evidence that the subjective criteria was used to effect discriminatory prejudice. The court determines it has done so with respect to his retaliation claim. Nelson offered evidence that Neinast's attitude towards him changed after his June 2001 complaint. Specifically, Neinast highly recommended Nelson for the promotion to Dallas IRS Site Manager position and was upset when he was not selected; yet, in the months following Nelson's complaint, Neinast began to lose "trust and confidence" in him. Nelson also offered evidence that Neinast contacted the human resources department on two occasions within a two-week period seeking information and advice on terminating him. Nelson further points to the discrepancy between his testimony that he made a complaint of discrimination to Neinast, and Neinast's testimony that no such complaint was made. All of this evidence creates a genuine issue of material fact as to whether BOA's articulated reasons for terminating Nelson are pretext for retaliation. Accordingly, BOA is not entitled to summary judgment on this claim.
IV. Conclusion
For the above stated reasons, genuine issues of material fact exist with respect to the following claims made by Nelson: (1) race discrimination based on the failure to promote him to the Dallas IRS Site Manager position; and (2) retaliation. Summary judgment is denied with respect to these two claims. No genuine issues of fact exist with respect to Plaintiff's discrimination claims based on the failure to promote him to the Nationwide Business Support Manager position and the termination of his employment; the court grants summary judgment on these claims. Accordingly, the court grants in part and denies in part Defendant's Motion for Summary to the extent herein stated.
It is so ordered.