Opinion
Civil Action No. SA-03-CA-314-XR.
June 30, 2004
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (Docket no. 25). Plaintiff sues her former employer for national origin (Hispanic) and sex discrimination complaining that it discharged her, but retained a White, male employee. She brings suit under Title VII of the Civil Rights Act of 1964. For the reasons stated below, the Court GRANTS the Defendant's motion.
I. Facts and Procedural Background
Plaintiff was initially employed by Waste Management from 1989 until sometime in 2000. She was initially employed in Waste Management's South and North Carolina offices. In 2000, she left Waste Management's employ because of her husband's change in job status. She obtained employment with Defendant's Texas operations in June 2001 as a district landfill controller. In this capacity she was responsible for the accounting responsibilities for the company's two landfalls in its San Antonio district. She initially reported to Barbara Pulcini, the San Antonio district controller. Ms. Pulcini reported to the Region Controller, Steve Johnson.
In December 2001, Defendant decided to consolidate its San Antonio, Austin, and Waco districts into a single Central Texas Market Area. As a result of this consolidation, several positions were no longer needed and other positions would require a relocation to another city. Eventually, Plaintiff was offered the new position of District Landfill Controller, which involved managing the accounting responsibilities for six landfills in the Central Texas Market Area. Under this reorganization, effective January 1, 2002, Plaintiff reported to Area Controller, Kim DesOrmeaux (male).
During this reorganization, two national corporate actions took place. First, an announcement was made that a national reduction in force (RIF) would take place in March 2002. Later, the Company's national corporate headquarters planned the elimination of various regional management positions throughout the country. The first RIF would not have impacted the Plaintiff's employ. The second action affected an assistant regional controller, Joe Skop, who worked in Houston, Texas. The proposed Skop termination impacted Plaintiff's continued employment.
The Area Controller, DesOrmeaux, had concerns regarding the quality of work being performed by Plaintiff, and had previously expressed those concerns to the Region Controller, Steve Johnson. When DesOrmeaux became aware that Skop was included in the RIF, he recommended to Central Texas General Manager Alec Pittman that Skop be transferred into the District Landfill Controller position, and that Plaintiff be terminated from employment.
Defendant argues that Plaintiff has failed to establish a prima facie case of national origin discrimination because none of the decision makers in this case knew of Plaintiff's Hispanic origin (Plaintiff's mother is Hispanic). Defendant further argues that Plaintiff's national origin and sex discrimination claims fail because the individual retained, Skop, was better qualified for the position because of his education and experience. In addition, Defendant maintains that Plaintiff was not the only district-level employee who was displaced by a region-level accounting manager.
II. Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
III. Analysis
A. Title VII Claims Generally
Plaintiff contends that she was terminated because of her national origin and her sex. 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). Plaintiff has presented no direct evidence of discrimination; therefore, she must rely on the burden-shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792 (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, Plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. Plaintiff may establish a prima facie case of discrimination for her termination by providing evidence that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, show that others similarly situated were treated more favorably. Okoye v. The University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). If she succeeds, Defendant 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 Plaintiff must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. Id.
B. National Origin Claim
Where intentional discrimination under Title VII is alleged, a prima facie case requires a plaintiff to demonstrate that the challenged employment decision was made by someone who was aware of the plaintiff's status as a member of the protected class, i.e. that Plaintiff was claiming a Hispanic ancestry. See Beasley v. Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir. 1991) (employer must be aware of plaintiff's religious practices to establish a Title VII religious discrimination claim); Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005-07 (7th Cir. 2001) (plaintiff failed to establish a prima facie case of pregnancy discrimination where she could not prove the person who decided to terminate her employment knew she was pregnant); Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 580-82 (3d Cir. 1996) (pregnancy discrimination claim fails where plaintiff could not provide any evidence the person who decided to terminate her employment knew she was pregnant); Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987) (concluding the McDonnell Douglas elements did not rationally create an inference of intentional discrimination even though plaintiff filled out an application for employment and checked a box indicating his race, where plaintiff offered no evidence the decision makers knew or saw the information concerning his race).
Plaintiff argues that the decision makers regarding her termination must have been aware of her Hispanic ancestry because a copy of her birth certificate was in her personnel file and the certificate lists her mother's maiden name as Morales. Further, she attaches a listing of separated employees, which lists her name and identifies her race as "H." Finally, she indicates that employees are invited to voluntarily identify their ethnicity or race after they are initially hired in a Voluntary Self-Identification Record.
Defendant responds, and provides affidavits of all relevant decision makers, that none of them were aware that Plaintiff's mother was Hispanic and that Plaintiff claimed a Hispanic ancestry. Further, they respond that Plaintiff's personnel file, where Plaintiff's birth certificate was placed, was kept in a different physical location and was not reviewed by them. With regard to the Voluntary Self-Identification Record, Plaintiff provides no evidence that she completed the form. Further, Defendant refutes through its managers' affidavits that any record that may indicate ethnicity or race, other than Plaintiff's birth certificate, was kept in Plaintiff's personnel file. Finally, they respond that the listing of separated employees was prepared as a response to the Equal Employment Opportunity Commission (EEOC) after Plaintiff filed her charge of discrimination. Defendant argues that the decision makers then only became aware of Plaintiff's national origin after she was discharged and filed her charge with the EEOC.
Plaintiff only provides her subjective belief and conclusory allegation that the decision makers were aware of her Hispanic ancestry prior to the decision to terminate her employment. Generalized testimony by an employee regarding her subjective belief is insufficient to make an issue for the jury. Marks v. St. Landry Parish School Bd., 75 Fed. Appx. 233, 2003 WL 22080747 (5th Cir. 2003) (citing Elliott v. Group Med. Surgical Serv., 714 F.2d 556, 564 (5th Cir. 1983) (stating that the Fifth Circuit is "not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief"); see also Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991). Defendant's motion for summary judgment with regard to Plaintiff's national origin claim is GRANTED.
C. Sex Discrimination Claim
Plaintiff has established a prima facie case of sex discrimination. She is female; was qualified for her position; was subject to an adverse employment action; and was replaced by a male. Accordingly, Defendant must articulate a legitimate, nondiscriminatory reason for its action. In this case, Defendant states that when the Company's national corporate headquarters planned the elimination of various regional management positions throughout the country, assistant region controller, Joe Skop, became available and it decided to retain Skop because he was better qualified than Plaintiff. Since both parties have satisfied their initial burdens, this case reaches the "pretext stage," and Plaintiff must adduce sufficient evidence to permit a reasonable trier of fact to find pretext. The plaintiff must prove (1) that the defendant's proffered reasons were false, and (2) that the real reason for her discharge was because of her gender. Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004).
In order to show that a proffered reason was merely a pretext, and defeat a summary judgment dismissal, the Fifth Circuit in Edwards v. Principi, 80 Fed. Appx. 950, 952-53 (5th Cir. 2003) has stated the following:
[T]his Court requires that a plaintiff show a difference in his qualifications superior to that of the person selected "so apparent as to virtually jump off the page and slap us in the face." EEOC v. Louisiana Office of Community Services, 47 F.3d 1438, 1445 (5th Cir. 1995). We have held that a plaintiff's subjective belief or unsubstantiated assertions of racial discrimination are insufficient to raise an inference of discrimination sufficient to defeat a summary judgment dismissal. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999); Grimes v. Texas Dept. of Mental Health at San Antonio, 102 F.3d 137, 140 (5th Cir. 1996). It is not enough to defeat summary judgment dismissal that a plaintiff show that a trier of fact could find that he was just as qualified as the person selected to show an inference of discrimination. Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993). Rather, a plaintiff must show that a trier of fact could find that he was clearly better qualified than the person selected. Id. Furthermore, this Court has held that in evaluating non-promotion discrimination cases it will not substitute its own views or judgment for those in an organization who have been charged with the evaluation duty by virtue of their own years of experience and expertise in the field in question, unless the record shows that the plaintiff was clearly better qualified than the chosen candidate.
In this case, Plaintiff argues that Skop was not "clearly better qualified." She argues that Skop was only retained because of his friendships with other male managers and Defendant utilizes the "good ol' boy system." Plaintiff misapplies her burden. She must show that she was clearly better qualified than the person selected. Plaintiff also attacks the decision to retain Skop because retaining him at a bigger salary was at odds with the company's economic situation and the need to reduce personnel.
In her response to the Defendant's motion for summary judgment, Plaintiff states that the following create fact issues making summary judgment improper: (1) She always received acceptable performance evaluations, and her supervisor, Area Controller DesOrmeaux, never expressed any concerns regarding the quality of her work. Accordingly, DesOrmeaux allegedly expressing such concerns to Region Controller, Steve Johnson is suspect; (2) Although Skop worked at the regional level of management, he was handling software program issues, not controller functions; (3) DesOrmeaux made no effort to ascertain Plaintiff's experience before deciding to retain Skop; (4) Skop earned $71,099 compared to Plaintiff's salary of $55,000; (5) Plaintiff's former supervisor, Barbara Pulcini opined that based on her experience Skop asked simplistic questions regarding the closing of books on the landfills and did not understand basic accounting concepts; and (6) After being given the position, it was discovered that Skop could not perform controller duties. Melissa Harrell O'Brien was hired to perform those functions, and Skop's job was restructured to a financial analyst position.
Defendant responds that DesOrmeaux "had every reason to believe that [Skop] was better qualified than [Plaintiff]." Skop possessed a bachelor's degree in accounting, but Plaintiff merely possessed an associate's degree. Skop had fourteen years of landfill accounting experience at Browning Ferris Industries (BFI). Skop's supervisor at BFI was Steve Johnson, now a Regional Controller for Defendant. Mr. Johnson provided DesOrmeaux a positive recommendation regarding Skop. After Plaintiff's discharge, Skop adequately performed his financial analyst duties, which after restructuring involved economic analysis, budget and forecasting responsibilities. Ms. O'Brien assumed "closing" duties for the Central Texas market and collection companies as part of the Company's overall restructuring. Further, to counter any argument that gender played any factor in the decision to retain Skop and discharge Plaintiff, Defendant notes that it offered the position to two women (Barbara Pulcini and Tammy Schaeffer) before it decided to retain Skop and discharge Plaintiff. Finally, Defendant notes that Plaintiff was not the only district level employee displaced by a region level employee, and female region level employees (Sarah Sims and Maureen Dexter) were retained and displaced district employees.
Plaintiff fails to show that she was "clearly better qualified" than Skop. Even though Defendant had previously waived the four-year degree requirement for Plaintiff, Skop did possess such a degree and Plaintiff did not. Skop had more years of landfill accounting experience. Desormeaux received recommendations that Skop was "a very competent and professional accountant." Pulcini fails to provide any specific evidence to support her opinion that Skop asked simplistic questions regarding the closing of books on the landfills and did not understand basic accounting concepts. Further, Pulcini does not provide any foundation for where she obtained her knowledge of Skop's allegedly poor abilities. The parties discuss at length whether the Plaintiff was adequately performing her job duties; even assuming that Plaintiff was adequately performing her job, that fact does not show that Plaintiff was "clearly better qualified" than Skop.
With regard to Plaintiff's economic argument, although deciding to retain Skop did not save Defendant as much money as retaining Plaintiff, Plaintiff cannot deny that by eliminating one of two positions costs savings were realized. Unfortunately for Plaintiff she was the individual selected for termination. Title VII was not "intended to be a vehicle for judicial second-guessing of business decisions, nor [was it] intended to transform the courts into personnel managers." Lindsey v. Prive Corp., 987 F.2d 324, 327-28 (5th Cir. 1993). Plaintiff fails to establish that she was "clearly better qualified" than the individual retained, and fails to adduce sufficient evidence to find pretext. Accordingly, summary judgment is proper on Plaintiff's sex discrimination claim.