Fan Gu v. Invista S.A.R.I.

Filing

UNPUBLISHED OPINION FILED. [16-20463 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 04/10/2017 [16-20463]

Case: 16-20463

Document: 00513917966

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Date Filed: 03/20/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20463
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 20, 2017
Lyle W. Cayce
Clerk

FAN GU,
Plaintiff - Appellant
v.
INVISTA S.A.R.L.,
Defendant - Appellee

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-240
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
Plaintiff-Appellant Fan Gu appeals from the district court’s decision
granting Defendant-Appellee INVISTA S.a.r.l. summary judgment on Gu’s
Texas Labor Code age discrimination claim. We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I.
We begin, as we must, by examining our jurisdiction. Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 102 (1998). INVISTA removed this case to
district court, invoking diversity jurisdiction under 28 U.S.C. § 1332. District
courts have diversity jurisdiction over “all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between . . . citizens of different States[.]” 28 U.S.C. § 1332(a)(1). The
amount in controversy requirement is satisfied here. Likewise, the diversity
of citizenship requirement is satisfied. Gu is a citizen of Texas. A corporation
is deemed to be a citizen of both any state in which it has been incorporated
and any state where it has its principal place of business.

28 U.S.C.

§ 1332(c)(1). By contrast, a limited liability company is a citizen of each state
where its partners and members are citizens. Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1080 (5th Cir. 2008). INVISTA is neither; instead, it is a
European business entity known as a société à responsabilité limitée, or S.a.r.l.
But under either the corporation test or the limited liability company test,
INVISTA is a citizen of Luxenberg and Kansas. Accordingly, we agree with
the district court that it had jurisdiction.
We reject Gu’s argument to the contrary. Gu contends that INVISTA’s
principal place of business is in Texas (and therefore, it is a citizen of Texas)
because it has a manufacturing plant in La Porte, Texas.

“[T]he phrase

‘principal place of business’ refers to the place where the corporation’s high
level officers direct, control, and coordinate the corporation’s activities.” Hertz
Corp. v. Friend, 559 U.S. 77, 80–81 (2010). Here, although some decisions
(such as local staffing decisions) are made at INVISTA’s manufacturing plant
in Texas, all record evidence indicates that INVISTA’s principal place of
business is in Kansas.
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II.
Gu claims that INVISTA unlawfully discriminated against him on the
basis of age, in violation of the Texas Labor Code, when INVISTA terminated
Gu’s employment.

The Texas Labor Code provides that “[a]n employer

commits an unlawful employment practice if because of race, color, disability,
religion, sex, national origin, or age the employer . . . fails or refuses to hire an
individual, discharges an individual, or discriminates in any other manner
against an individual in connection with compensation or the terms,
conditions, or privileges of employment[.]” Tex. Labor Code § 21.051. “Texas
courts apply the familiar McDonnell Douglas burden-shifting framework to
age-discrimination claims” under the Texas Labor Code. Reed v. Neopost USA,
Inc., 701 F.3d 434, 439 (5th Cir. 2012).
Under the McDonnell Douglas analysis, a plaintiff is
entitled to a presumption of discrimination if he can
meet the minimal initial burden of establishing a
prima facie case. Although the precise elements of this
showing will vary depending on the circumstances, the
plaintiff’s burden at this stage of the case is not
onerous. Upon a showing of a prima facie case, the
burden shifts to the employer to show a legitimate,
nonretaliatory reason for the adverse employment
action. If the employer meets its burden, then the
burden shifts back to the plaintiff to make an ultimate
showing of intentional discrimination.
Id. (internal quotation marks and citations omitted).

The district court

assumed a prima facie case but nonetheless found that Gu failed to rebut
INVISTA’s non-discriminatory reason for the adverse employment action. We
agree.
INVISTA claims that it fired Gu because of his poor job performance,
failure to complete his action items to improve his performance, and poor
attitude. These bases are well supported by the record and are legitimate and
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non-discriminatory. See Walcott v. Tex. So. Univ., No. 01-12-00355-CV, 2013
WL 593488, at *7 (Tex. App.—Houston [1st Dist.] Feb. 14, 2013, no pet.) (“An
employee’s poor job performance is a legitimate, non-discriminatory reason for
discharge.”); see also LeMaire v. Louisiana, 480 F.3d 383, 391 (5th Cir. 2007)
(same).
Gu disagrees with INVISTA’s assessment of his performance. But Gu’s
subjective disagreement does not create a genuine issue of material fact that
INVISTA’s reasons were pretextual. See, e.g., Amezquita v. Beneficial Tex.,
Inc., 264 F. App’x 379, 386 (5th Cir. 2008) (unpublished) (“Whether [the
employer was] wrong to believe that [the employee] was lying, though, is
irrelevant, as even an employer’s incorrect belief in the underlying facts—or
an improper decision based on those facts—can constitute a legitimate, nondiscriminatory reason for termination.”); Bryant v. Compass Grp. USA Inc.,
413 F.3d 471, 478 (5th Cir. 2005) (“While the prudent action may have been to
discuss the event with Bryant and obtain his side of the story before
terminating him, evidence that the employer’s investigation merely came to an
incorrect conclusion does not establish a racial motivation behind an adverse
employment decision. Management does not have to make proper decisions,
only non-discriminatory ones.”). Accordingly, we agree with the district court
that Gu has failed to create a genuine issue of material fact as to whether
INVISTA unlawfully discriminated.
III.
Finding no error in the district court’s opinion, we AFFIRM.

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