Opinion
Civil Action No. 3:02-CV-0835-L
February 13, 2004
MEMORANDUM OPINION AND ORDER
Before the court are Excel Management Services, Inc.'s Amended and/or Supplemental Motion for Summary Judgment, filed October 31, 2003; and VarTec Telecom, Inc.'s Amended and/or Supplemental Motion for Summary Judgment, filed October 31, 2003. After careful consideration of the motions, responses, replies, summary judgment evidence, record and applicable law, the court grants Excel Management Services, Inc.'s Amended and/or Supplemental Motion for Summary Judgment; and grants VarTec Telecom, Inc.'s Amended and/or Supplemental Motion for Summary Judgment.
The history related to the motions for summary judgment is tortuous and reminiscent of the labyrinths referenced in Greek mythology. Defendants filed their motions for summary judgment and appendices on August 29, 2003. Plaintiff filed her appendix to her response on September 18, 2003 and her response on September 19, 2003. On September 22, 2003, Plaintiff filed a supplement to her appendix in which she attached two pages of deposition testimony that were inadvertently omitted from her appendix. On October 3, 2003, Defendants filed their replies. On October 7, 2003, Defendant Excel Management Services, Inc. supplemented its appendix by attaching the corrigenda page of a deposition used by Plaintiff in her response. On October 31, 2003, Defendants filed amended motions for summary judgment to correct an "administrative oversight" in which they failed to move for summary judgment on Plaintiff's state law discrimination and retaliation claims in their original motions. Defendants also filed supplemental appendices in which they attached the evidence necessary to support their amended motions. On November 4, 2003, Defendant Excel Management Services, Inc. filed a corrected copy of its amended summary judgment brief. On November 13, 2003, Plaintiff filed her response to Defendants' amended motions for summary judgment. On November 21, 2003, Plaintiff filed an amended response in which she attached a table of contents and a table of authorities that were inadvertently omitted from her response of November 13, 2003. On November 26, 2003, Defendants filed their amended replies.
I. Factual and Procedural Background
This is an employment discrimination and retaliation case. Plaintiff Brenda J. Owens ("Plaintiff or "Owens"), a 52 year-old African-American female, worked as Director of Corporate Tax for Defendant Excel Management Services, Inc. ("Excel") from March 13, 1995 until October 19, 2001. As such, Owens managed Excel's tax department and provided other tax related services to Excel. Owens reported to Mike Lavey, a 43 year-old white male, who was the Vice President/Controller of Excel. In addition to the tax department, Lavey had supervisory authority over the departments of revenue accounting, revenue operations, and treasury. Lavey reported to Jim Timmer, a 42 year-old male, who was an Executive Vice President/Chief Financial Officer for Excel, In October 2001, Excel initiated a company-wide reduction in force ("RTF"). As part of the RTF, Lavey made the decision to eliminate two positions: Director of Tax, which was held by Owens, and Revenue Specialist, which was held by Kevin Crews ("Crews"), a 32 year-old white man. On October 19, 2001, Owens's employment with Excel was terminated.
A11 references to age are calculated as of the date of Owens's termination, October 19, 2001.
During this same time period, VarTec Telecom, Inc. ("VarTec") was in the process of acquiring Excel. As Director of Corporate Tax, Owens worked with several VarTec employees, including Sonya Ayers ("Ayers"), regarding the impending acquisition. Ayers, a 41 year-old white female, was the Vice President of Finance Integration for VarTec. After hearing of Owens's termination, Ayers informed Owens of the vacant Director of Tax position at VarTec. Shortly thereafter, Owens applied for the position. Ayers, however, was not the final decisionmaker with respect to this position. Instead, VarTec's Chief Financial Officer Gary Egger ("Egger"), a 53 year-old white male, was the decisionmaker. Egger hired Neil Keeter, a 35 year-old white male, for the vacant position.
The title of the vacant position was changed to Senior Director of Tax in order to accommodate Keeter's salary requirements. The primary duties and responsibilities of the position were not affected.
After exhausting her administrative remedies, Owens filed this lawsuit alleging claims of race, sex, and age discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; and the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. § 21.001, et. seq.; and a claim of "aiding and abetting" in violation of § 21.056 of the Texas Labor Code. Excel and VarTec (collectively "Defendants") subsequently moved for summary judgment. The court now considers these motions.
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, 5O6U.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. Applicable Standard of Proof
Owens and Defendants disagree regarding the applicable standard of proof on her discrimination claims. Owens maintains that the holding in Desert Palace, Inc. v. Costa, ___ U.S. ___, 123 S.Ct. 2148, 2150, 156 L.Ed.2d 84 (2003) dictates that "summary judgment should only be granted in employment discrimination cases if an employer can demonstrate that the employee has failed to raise a genuine issue of material fact concerning whether or not a protected characteristic was a motivating factor in an employment decision." PL Am. Resp. at 8. In other words, Owens contends that the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting framework is no longer applicable.
Defendants counter that the McDonnell Douglas burden-shifting framework is applicable despite Desert Palace, The court agrees. Desert Palace simply makes clear that direct evidence of discrimination is not necessary to obtain a mixed-motive jury instruction under Title VII. 123 S.Ct. at 2150, 2155. If Owens's suggestion that the McDonnell Douglas burden-shifting paradigm no longer exists after Desert Palace is correct, such a change would constitute a revolution in employment discrimination law. If the Supreme Court were going to make a draconian departure from 30 years of well-established employment law precedent, the court believes it would have done so with unmistakable clarity. In Desert Palace, the Supreme Court does not even intimate that it is overruling, restricting or clarifying McDonnell Douglas. Moreover, no Fifth Circuit authority embraces Owens's interpretation of Desert Palace. See Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003) ("Resolution of a [Title VII discrimination] claim involves a three-step, burden-shifting analysis."); see also Read v. BT Alex Brown Inc., 72 Fed. Appx. 112 (5th Cir. 2003). Accordingly, this case will be analyzed pursuant to the burden-shifting framework under McDonnell Douglas. Regardless of the standard applied, the ultimate burden of proving intentional discrimination remains with the plaintiff. See Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Read, 72 Fed. Appx. at 115 (citing Desert Palace, 123 S.Ct. at 2150).
In Read, the Fifth Circuit cited to Desert Palace; however, it applied the McDonnell Douglas burden-shifting framework to the plaintiff's sex and age discrimination claims. If the Fifth Circuit believed that Desert Palace abrogated the burden-shifting framework set forth in McDonnell Douglas, it certainly would have deemed it necessary to elevate Read to the status of a published opinion, rather than making it an unpublished opinion having no precedential value.
B. Discrimination
Owens brings claims of race, sex, and age discrimination in violation of Title VII, § 1981, THCRA, and the ADEA. Under the applicable burden-shifting paradigm for discrimination claims, Owens must establish a prima facie case of discrimination; Defendants must then articulate legitimate, nondiscriminatory reasons for their actions; and finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Owens must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See McDonnell Douglas, 411 U.S. at 802-04; Burdine, 450 U.S. at 252-53; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000).
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). Similarly, claims under TCHRA and Title VII are governed by identical law. Shackelford, 190 F.3d at 403 n. 2 (citing Colbert v. Georgia-Pacific Corp., 995 F. Supp. 697 (N.D. Tex. 1998)). Further, the McDonnell Douglas burden-shifting analysis is also applicable to ADEA discrimination claims. See O'Connor v. Consolidated Coin Caterer Corp., 517 U.S. 308, 311 (1996). As the underlying facts of Owens's Title VII, § 1981, TCHRA, and ADEA discrimination claims are the same, and the evidentiary burdens of these statutes are similar, her claims will be analyzed together.
1. Discharge Claim
Owens contends that she was discharged because of her race, sex, and age. Excel counters that her race, sex, and age played no part in the decision to terminate her employment; instead, she was discharged pursuant to a company-wide RIF aimed at reducing costs.
In a RIF case, a prima facie case under Title VII is established by showing that (1) the plaintiff is a member of a protected class; (2) she was qualified for the position that she held; (3) she was discharged; and (4) after her discharge, "others who were not members of the protected class remained in similar positions." Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (quoting Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990)). The first three elements of a prima facie case under the ADEA are identical to those of a prima facie case under Title VII. Bauer, 169 F.3d at 966 (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)). For the fourth element in an ADEA case, the plaintiff must show that she was otherwise discharged because of her age. Id. (citing Armendariz v. Pinkerton Tobacco. Co., 58 F.3d 144, 150 (5th Cir. 1995)).
(a) Prima Facie Case
Excel concedes that Owens can establish the first three elements of a prima facie case. The court, therefore, must determine whether evidence exists to establish the fourth element of Owens's race and sex claims, namely, that white males remained in similar positions, and of her age claims, namely, that she was otherwise discharged because of her age. Meinecke v. HR Block, 66 F.3d 77, 84 (5th Cir. 1995).
With respect to Owens's race and sex claims, Excel contends that she cannot establish that white males remained in similar positions because there were no employees who were similarly situated to her or in nearly identical circumstances to hers. In other words, Excel contends that because Owens was the only director-level employee, or "Grade-12 " employee, in the tax department, she did not have a "nearly identical" comparator, and therefore cannot establish a Title VII prima facie case. Owens counters that she need not show that she was treated differently than a similarly situated individual; rather, she need only present evidence that Excel intended to discriminate in reaching the decision at issue. Owens relies on Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003) to support her position; her reliance on Palasota, however, is misplaced.
In Palasota, the plaintiff brought suit against his former employer alleging age discrimination in violation of the ADEA and sex discrimination in violation of Title VII. Id. at 573. The jury entered a verdict in favor of the plaintiff on the ADEA claim and in favor of the employer on the Title VII claim. Id. After the jury verdict, the district court granted a motion for judgment as a matter of law in favor of the employer on the ADEA claim. Id. The Fifth Circuit held that the district court erred in, among other things, holding that the plaintiff had to show that he was treated differently than similarly situated employees who were younger than he. Id. at 575. The Palasota court reiterated that the fourth element of an ADEA prima facie case provides that a plaintiff must show that he was replaced by someone outside the protected class, replaced by someone younger, or otherwise discharged because of his age. Id. at 576. The court explained that a plaintiff can establish that he was otherwise discharged because of his age by showing "evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Id. (quoting Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)). Owens contends that Palasota applies to Title VII cases. The court disagrees. While the evidentiary burdens of the ADEA and Title VII are the same ( O'Connor, 517 U.S. at 311), the elements of a prima facie case under each statute are not identical. Bauer, 169 F.3d at 966. The Palasota court specifically addresses the fourth element in a prima facie ADEA case; no such element exists in a prima facie Title VII case.
While Palasota is applicable to the court's determination of whether Owens can establish a prima face case of age discrimination, it has not yet reached this issue. At this point, the court must determine whether Owens has shown that Excel treated her differently than other similarly situated employees on the basis of race and sex. See Vaughn, 918 F.2d at 522. Employees may be considered "similarly situated" to Owens if their circumstances are nearly identical. See Okoye v. University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991).
Owens points to two other director-level employees, Debra Brandgard ("Brandgard") and Clarence Prestwood ("Prestwood"), who were treated differently than she. Brandgard, a 38 year-old white female, was the Director of Revenue Operations and reported to Lavey. Prestwood, a 49 year-old white male, was the Vice President of Finance and reported to Timmer. Neither Brandgard nor Prestwood worked in the tax department. Excel contends that Brandgard and Prestwood are not appropriate comparators because they were not supervised by the same person as Owens and they performed different job functions than Owens. The court agrees. See Okoye, 245 F.3d at 514 (citing Little, 924 F.2d at 97) (Employees are not in nearly identical circumstances when their actions were reviewed by different supervisors.); Hockman v. Westward Communications, L.L.C., 282 F. Supp.2d 512, 527-28 (E.D.Tex. 2003) ("[E]mployees with different responsibilities, different supervisors, different capabilities, different work rule violations or different disciplinary records are not considered to be `nearly identical.'"; Daniels v. BASF Corp., 270 F. Supp.2d 847, 854-55 (S.D.Tex. 2003) (Circumstances were not nearly identical when employees did not perform the same functions.). Indeed, Owens failed to establish that she, Prestwood, and Brandgard performed the same or nearly identical functions. Moreover, it is undisputed that Prestwood and Owens were supervised by different persons. Accordingly, Owens cannot demonstrate that she was similarly situated to these employees and therefore cannot establish a prima facie case of sex and race discrimination.
Even assuming that Owens can establish a prima facie case, her race and sex discrimination claims fail for the same reasons her age discrimination claims fail. See § IH.B(1)(c), infra.
As for a prima facie case of age discrimination, Owens need only show evidence that Excel intended to discriminate in reaching its decision to eliminate her position during the RTF. See Palasota, 342 F.3d 576; Nichols, 81 F.3d at 41. This requires only a minimal showing. Nichols, 81 F.3d at 41. Excel contends that Owens cannot show evidence that it intended to discriminate by eliminating her position because Lavey also terminated a 32 year-old employee, Crews, and he retained an employee who "was nearly as old as" Owens. Owens counters that (1) she was the oldest employee in the tax department and was the only employee from that department terminated; (2) she was the oldest employee who reported to Lavey; (3) Brandgard and Prestwood, both of whom are younger than she, were originally selected for termination in the RTF but were ultimately retained; (4) her performance evaluations were better than those of Brandgard and Prestwood; and (5) the costs savings associated with her termination would have been less than those costs savings associated with Prestwood had he been terminated; and almost the same, albeit a little higher, than those costs savings associated with Brandgard had she been terminated. Evidence that younger employees were treated more favorably is generally sufficient to shift the burden to the employer in the second stage of the McDonnell Douglas framework. The court therefore concludes that Owens has met her initial burden of establishing the elements of a prima facie age discrimination case.
The employee is Lewis Thomas. He was 52 years old.
(b) Legitimate, Nondiscriminatory Reason
Excel contends that its company-wide RIF, which affected 166 employees and was projected to save 17.2 million dollars in 2002, is a legitimate, nondiscriminatory reason for terminating Owens. Specifically, Lavey decided that "Excel could most safely eliminate Owens's management-level position to cut costs while utilizing the existing staff to maintain the same level of work." Excel. Am. Br. at 18-19. The rebuttal of the presumption created by the prima facie case requires only a minimal showing, as does the prima facie case itself. Amburgey, 936 F.2d at 813. The court concludes that Excel has set forth a legitimate, nondiscriminatory reason for terminating Owens. See EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (A reduction in force "is itself a legitimate, nondiscriminatory reason for discharge.").
(c) Pretext and Intentional Discrimination
Owens contends that Excel's proffered reason for eliminating her position in the RIF is a pretext. 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 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 discriminated," 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.
To show pretext, Owens contends that (1) Excel's proffered reason for eliminating her position is different than the reason she was given at the time of her termination; (2) Excel's statements and actions are inconsistent with its financial condition; and (3) Excel's actions with respect to retention, hiring and compensation of employees before and after the RIF are inconsistent. Specifically, Owens avers that Lavey told her at the time of her termination that her position was being eliminated because of the VarTec acquisition. Owens offers Lavey's deposition, in which he denies such an assertion and concedes that such an assertion would be false. Further, Owens provides deposition testimony of Lavey and Timmer in which they contradict each other regarding the discussions leading up to the RTF. Excel counters that summary judgment is appropriate because its proffered reason is the same reason Owens was given on the day of her termination, namely, that her position was no longer needed, and it is undisputed that Owens was terminated pursuant to a company-wide RIF. The court agrees. Even assuming that Lavey told her that her position was being eliminated because of the VarTec acquisition and that Lavey and Timmer have different recollections of the discussions they had regarding the RIF, the record conclusively reveals a nondiscriminatory reason for Owens's termination, namely, the company-wide RIF.
The inconsistent testimony deals with the information allegedly given by Timmer to his direct reports, including Lavey, regarding the objective of the RIF and the directive to reduce costs; it does not deal specifically with the decision to eliminate Owens's position.
Owens next attempts to show pretext by questioning the necessity of the RIF based on Excel's financial condition at that time and various personnel and compensation decisions made before and after the RIF. Specifically, she points to two internal documents issued shortly before the October RIF that state that Excel was on target to meet its business goals. Based on this evidence, Owens contends that "the evidence clearly shows that the RIF was not expected to solve [Excel's financial] problems." In this same vein, Owens points out that, even after the RIF, Excel continued to hire employees and pay bonuses. Assuming that the RIF was an unwise and unnecessary business decision, a court cannot and will not second-guess a company's decision to undergo a RIF. See Walton v. Bisco. Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997); Nieto v. LH Packing Co., 108 F.3d 621, 624 (5th Cir. 1997).
It is undisputed that none of these employees replaced Owens.
Finally, Owens compares her treatment to that of Brandgard and Prestwood, both of whom are younger than she. Specifically, she questions why Brandgard and Prestwood, whose combined salaries were over $310,000, were not terminated, as their positions had been initially identified for elimination. She contends that if cost reduction were the true reason behind the RTF, the elimination of their positions would have saved more money than the elimination of her position. Owens further contends that her performance was superior to that of Brandgard, as Brandgard overstated Excel's revenue in 2000 by $136 million while she (Owens) brought in an additional $35 million in the same time period. Even if the terminations of Brandgard and Prestwood would have saved Excel more money and if her performance was superior to that of Brandgard, Owens has not produced any evidence to dispute Lavey's reason for choosing to eliminate her position, namely, that he could cut costs while using the existing staff to maintain the same level of work. Indeed, it is undisputed that there was little to no disruption in the work performed within the tax department after Owens's termination. Furthermore, Owens has not disputed Lavey's reason for not eliminating Brandgard's position, namely, she was working on a project that needed to be completed before the position could be eliminated. Lastly, there is no evidence to suggest that Lavey had the authority to eliminate Prestwood's position, as they were both Vice Presidents of Excel. Thus, Owens has not presented sufficient evidence to create a genuine issue of material fact as to pretext. Accordingly, there is no genuine issue of material fact as to Owens's age discrimination claims based on her termination, and Excel is entitled to judgment as a matter of law as to those claims.
2. Failure to Hire
Owens contends that VarTec discriminated against her on the basis of race, sex, and age when it failed to hire her for the position of Director of Tax. VarTec counters that she was not hired for the position because she was not qualified.
In a failure to hire case, a prima facie case is established by showing that (1) Owens is a member of a protected class; (2) she applied for a position; (3) she was qualified for the position for which she applied; (4) she was not selected for the position; and (5) after VarTec declined to hire her, the position either remained open or someone outside the protected group was selected to fill it. See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994) (citing Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1135 (5th Cir. 1983)). (a) Prima Facie Case
The court will again analyze all of Owens's discrimination claims together. See n. 5, supra.
VarTec contends that Owens cannot establish that she was qualified for the Director of Tax position, as she was not a Certified Public Accountant ("CPA"). Specifically, VarTec's job description of the position at issue lists a CPA license as a requirement, and the individual, Keeter, who was selected for the position is a CPA. Owens concedes that she does not have a CPA license but counters that a genuine fact question exists as to whether she was qualified for the position because (1) two VarTec employees involved in the hiring process believed she was qualified; (2) she was granted an interview by a VarTec recruiter, which ordinarily does not happen unless the individual is qualified for the position; (3) the individual who held the position prior to the vacancy was not a CPA; and (4) she was never informed during the hiring process that she was not qualified.
VarTec does not contend that Owens "was not capable of performing the essential functions of the job." It contends that she did not meet the "facial requirements" of the job description for the position. The court therefore determines that VarTec's concession that Owens was capable of performing the essential functions of the job is sufficient to establish that she was qualified for the position. See Smith v. Eastern Airlines, Inc., 651 F. Supp. 214, 219 n. 1 (S.D.Tex. 1986) ("Here the term `qualified' simply means an essential ability to perform the job, not that Plaintiff met the job description required by the employer.").
VarTec next contends that Owens cannot establish that she was rejected for the position because it did not make an affirmative decision not to hire her but rather it made an affirmative decision to hire Keeter. VarTec's contention is a "difference without a distinction." The fourth element of a prima facie case, as articulated earlier, requires a showing that Owens was not selected ` for the position. As Keeter was given the position, it is clear that Owens was not selected for the position. The court therefore concludes that Owens has met her initial burden of establishing the elements of a prima facie case.
(b) Legitimate, Nondiscriminatory Reason
VarTec contends that Egger, the ultimate decisionmaker, hired Keeter because of "his previous, positive work history with Keeter, Keeter's VarTec-specific experience, Keeter's "Big 5" accounting experience, and Keeter's otherwise exemplary qualifications and experience." VarTec Am. Reply at 4. Owens counters that VarTec has not articulated a legitimate reason for not selecting her, as it never compared her qualifications to those of Keeter's. VarTec concedes that no comparison was done because "Keeter was not selected over Owens." VarTec Am. Reply at 5. Instead, the decision to hire Keeter, VarTec continues, was made before Owens could be considered for the position. Although it appears that Owens was not considered for the position, the court determines that VarTec has articulated legitimate, nondiscriminatory reasons for hiring Keeter. Cf. Wheeler v. City of Columbus, 686 F.2d 1144, 1153-54 (5th Cir. 1982) (court analyzed employer's refusal to interview the plaintiff thus barring her from consideration in the pretext stage of the burden-shifting framework). The burden now shifts back to Owens to demonstrate that VarTec's articulated reasons are a pretext for intentional discrimination.
(c) Pretext and Intentional Discrimination
Owens contends that VarTec's proffered reasons are pretext because she was never considered for the position and she is more qualified than Keeter for the position. VarTec counters that Owens was not considered for the position because Egger "was focused on the possibility of hiring Keeter." VarTec Am. Br. at 11. Owens contends that VarTec's explanation is disingenuous, as she applied for the position before Keeter. Although this may be unfair, it alone is insufficient to establish that VarTec's failure to hire her is based on impermissible discrimination. Indeed, it is undisputed that at the time the decision to hire Keeter was made, Egger was unaware of Owens's race or age.
VarTec further contends that it is entitled to summary judgment because Owens fails to establish that no reasonable person would have chosen Keeter over her for the position in question. The court agrees. At the time of his hire, Keeter had over 15 years of public accounting experience, including over 10 years in a manager or senior manager capacity; he has a B.B.A. in accounting; he is a CPA; he had 14 years of "Big 5" experience; and he had VarTec-specific telecom experience. On the other hand, Owens had over 30 years experience in corporate taxation, including 20 years in a supervisory position; she has a B.S. in accounting and an M.S. in taxation; she had seven years of experience in corporate tax in the telecom industry and worked in a regulated environment for 11 years; and she was the Director of Tax at Excel for over six and a half years. Obviously, both Keeter and Owens are well-qualified for the position at issue. 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" Keeter over Owens for the position. See Deines v. Texas Dep't of Protective and Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999).
The court determines that Owens has failed to establish that VarTec's articulated reasons for its alleged discriminatory conduct were a pretext for intentional discrimination. Accordingly, VarTec is entitled to judgment on Owens's claims of race, age, and sex discrimination.
3. Aiding and Abetting
In her Second Amended Complaint, Owens alleges violations of § 21.056 of the Texas Labor Code. Section 21.056 provides that "[a]n employer . . . commits an unlawful employment practice if the employer . . . aids, abets, incites, or coerces a person to engage in a discriminatory practice." Tex. Labor Code Ann. § 21.056 (Vernon 1996). Excel and VarTec move for summary judgment on the basis that the record is devoid of any evidence to support a violation of § 21.056. The court agrees. Moreover, Owens does not oppose summary judgment on her § 21.056 claims. See PL Am. Br. at 2 ("Owens had also alleged that Excel and VarTec aided and abetted each other in violation of Tex. Labor Code § 21.056; however, Owens is not opposing summary judgment on the aiding and abetting claims."). Accordingly, Excel and VarTec are entitled to judgment as a matter of law on Owens's § 21.056 claims.
C. Retaliation
Owens brings a retaliation claim pursuant to Title VII, THCRA, ADEA, and § 1981 against VarTec. Specifically, Owens contends that VarTec retaliated against her by failing to hire her for the Director of Tax position because she had previously complained to Excel regarding sex, race, and age discrimination. VarTec counters that Owens cannot establish a prima facie case or show that "but for" her protected activity, she would have been hired for the Director of Tax position.
As the underlying facts of Owens's Title VII, § 1981, TCHRA, and ADEA retaliation claims are the same, and the evidentiary burdens of these statutes are similar, her claims will be analyzed together. See n. 5, supra.
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) she engaged in a protected activity; (2) she 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.
Owens contends that the less stringent "motivating factor" test applies to her THCRA claim. She relies on Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001); her reliance on Toennies is misplaced. In Pineda v. United Parcel Serv., Inc., 353 F.3d 414 (5th Cir. 2003), the Fifth Circuit rejected this argument. Specifically, the Pineda court noted that the Toennies court "meant that the [motivating factor] standard was the applicable standard in both pretext and mixed motive employment discrimination cases where § 21.125(a) was applicable." Id. at 419 n. 4 (emphasis added). The Pineda court then held that the "but for" standard is the correct standard for claims brought under § 21.055, as § 21.125(a), by its own terms, is not applicable to claims brought under § 21.055. Id. at 419. The court, therefore, applies the "but for" standard to Owens's THCRA claim.
At issue here is the third element of the prima facie case — the existence of a causal connection between the protected activity and the adverse employment action. VarTec contends that Owens cannot establish a causal connection because Egger, the ultimate decisionmaker, had no knowledge of her complaints of discrimination when he made his decision to hire Keeter. Owens contends that she need only establish general corporate knowledge of her protected activity, not specific knowledge by an individual employee of VarTec. She relies on Gordon v. New York City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000). Owens's reliance on Gordon is misplaced.
First, Gordon is not binding on this court, as it was decided in another circuit. Second, the holding in Gordon actually supports VarTec's position that the lack of knowledge on the part of Egger is evidence of a lack of a causal connection. Specifically, the Gordon court held, among other things, that "[t]he lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of causal connection, countering plaintiff's circumstantial evidence of proximity or disparate treatment." Id. at 117 (emphasis in original).
The Gordon court noted, however, that even in the absence of direct knowledge by individual agents, a jury can still find retaliation if, for example, it finds that "circumstances evidence knowledge of the protected activities or the jury concludes that an agent is acting explicitly or implicit upon the orders of a superior who has the requisite knowledge." 232 F.3d at 117. No such evidence has been presented in this case.
Owens further contends that the timing of Keeter's hire is sufficient to establish a causal connection. Specifically, VarTec was notified of Owens's complaint on January 16, 2002, the same day that it sent Keeter a written offer of employment. Owens is correct that temporal proximity between the protected activity and the adverse employment action may be a significant factor in showing a causal connection. See Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001). She must still, however, demonstrate that the decision not to hire her was based in part on knowledge of her complaints of discrimination. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (citing Sherrod v. American Airlines, 132 F.3d 1112, 1122 (5th Cir. 1998)). "If the decisionmakers were completely unaware of the plaintiff's protected activity, then it could not be said (even as an initial matter) that the decisionmakers might have been retaliating against the plaintiff for having engaged in that activity." Manning v. Chevron Chemical Co., 332 F.3d 874, 884 n. 6 (5th Cir. 2003).
Here, it is undisputed that Eggers did not know of Owens's protected activity when he interviewed Keeter and that Eggers had decided as early as December 13, 2001 that he wanted to hire Keeter for the vacant position. Indeed, the hiring requisition form for the position in question, dated January 8, 2002, identifies Keeter and sets forth his salary requirements. Owens has not adduced any evidence that any VarTec decisionmaker had knowledge of her protected activity when she was not selected for the vacant position. As such, Owens has not established a prima facie case of retaliation. IV. Conclusion
Even assuming Owens established a prima facie case of retaliation, VarTec provided a legitimate, nonretaliatory reason for not hiring her for the Director of Tax position, namely, the decision to hire Keeter was made before she could be considered for the position. See § III.B.2, supra. Owens has not offered sufficient evidence to demonstrate that the reason she was not hired was in retaliation for complaining to Excel regarding discrimination.
For the above stated reasons, no genuine issues of material fact exist with respect to any of Owens's claims, and Defendants are entitled to summary judgment on these claims. Accordingly, the court grants Defendant Excel Management Services, Inc.'s Motion for Summary Judgment; and grants Defendant VarTec Telecom, Inc.'s Motion for Summary Judgment. The court dismisses with prejudice this action against Defendants. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.
It is so ordered.