Williams v. Red River Beverage Group

Filing 62

MEMORANDUM RULING re 49 MOTION for Summary Judgment filed by Red River Beverage Group. Signed by Judge Elizabeth E Foote on 11/19/2020. (crt,Keifer, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TERRY DALE WILLIAMS

CIVIL ACTION NO. 17-1291

VERSUS

JUDGE ELIZABETH E. FOOTE

RED RIVER BEVERAGE GROUP

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Pending before the Court is a motion for summary judgment [Record Document
49], filed by the Defendant, Red River Beverage Group (“Red River”). Red River’s motion
asks this Court to dismiss all claims of race and age discrimination brought by the Plaintiff,
Terry Williams (“Williams”). Upon consideration of the briefs filed by the parties and for
the reasons stated below, Red River’s motion for summary judgment is GRANTED.
BACKGROUND
Beginning in 2004, Williams, who is African American, worked for Red River as a
salesman. Record Documents 49-3, p. 1 & 54, p. 2. Williams was fifty-one years of age
at the time he joined the company. Record Document 49-5, p. 1. He was fired in 2016,
as a result of what he claims to be race and age discrimination.
As a salesman for Red River, Williams sold the company’s products to stores and
ensured that those accounts had fresh product on their shelves. Id. at p. 2. Williams was
required to follow the “Laws of the Industry,” which were designed to ensure fresh product
was made available to customers at all times. Id. at p. 2 & 49-6, p. 20. Salesmen could
rotate products in their accounts to maintain freshness. Id.

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Williams’s employment was governed by the Red River Beverage Group, LLC
Company Policy, which was in effect throughout his tenure with Red River.
Document 49-5, p. 2.

Record

The company policy stated that some bases for discipline or

termination included insubordination, violation of the product out-of-date policy, and
dereliction of duty. Record Document 49-6, pp. 21 & 24. Williams was written up by the
company once in April of 2011 when a store called to complain that its shelves were empty
because no product had been stocked. Record Document 49-7, p. 7. Williams did not
commit any other disciplinary violations for nearly five years, until 2016. During that year,
he was disciplined for company violations on January 5, 2016, March 23, 2016, August 4,
2016, and November 17, 2016. Record Document 49-7, pp. 8-16. According to Red River,
these violations formed the basis of his eventual discharge from the company.
The January incident stemmed from company management learning that one of
Williams’s accounts, a County Market store, had out-of-date product at the bottom of
displays and in the store’s back room. In all, company management discovered seventyfive cases of out-of-date two-liters and twelve cases of half-pack half-liters, which cost
Red River over $600. The Employee Warning Notice issued for this incident states, “we
cannot afford to have out of date available for the consumer to purchase. I hope that
Terry sees the severity of this and will work on improving his work ethic . . . . Any further
occurrences of this type of action will result in dismissal.” Id. at p. 9. In March, company
management found out of date product spread throughout two County Market locations.
Id. at pp. 11-12. Based on this violation, Red River placed Williams on a performance

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improvement plan, and he was warned that “further misconduct may result in additional
discipline up to and including . . . dismissal from the company.” Id. at pp. 10, 12.
Then, in August, Williams was written up for insubordination, failure to follow
directions, and failure to handle customer concerns. Record Document 49-7, p. 14. This
resulted from a call Red River received from one of Williams’s customers in which the
customer complained about being out of stock of several items. Red River District Manager
Jody Holloman (“Holloman”) texted Williams three times over the course of several hours,
yet Williams never responded. In the evening Holloman included George Page (“Page”),
Director of Sales and Marketing, on the text thread. Page instructed Williams to take care
of the issue first thing the following morning. Holloman’s narrative on the report reflected
that Williams “became argumentative and laid blame on others.” Record Document 49-7,
p. 14. The next morning, Williams spoke with the respective store manager and “blame[d]
the office, drivers and everyone else” for the store being out of stock. Id. Williams then
made arrangements to have the product delivered the following day, but upon questioning
from the Red River office staff about whether Williams was expected to deliver the product
himself, Williams reportedly told both the customer and the office personnel that he was
not going to deliver despite being told to do so directly. Id. Upon learning this, Red River
asked Williams to report to the office by 9:30 a.m. that day, but Williams did not appear
until 11:10 a.m. Id. During a meeting on this issue, Williams told Page that he would not
deliver the product himself, and then he allegedly became disrespectful, “combative and
argumentative.” Id. Red River initially placed Williams on a three-day unpaid suspension
but it ultimately rescinded the suspension. Id.
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Williams’s final infraction in November of 2016 was, according to Human Resources
Manager Angie Davis (“Davis”), the “proverbial straw that broke the camel’s back.” Id. at
18. On November 17, 2016, Williams was at one of his Super One accounts when he
called Holloman to request display racks for the store. Record Document 49-6, pp. 3-4.
Bobby Moore (“Moore”), an off-duty Red River salesman, was also at Super One and
engaged in conversation with Williams. When Holloman’s voicemail picked up, Williams
failed to hang up to end the call. Thus, the conversation that ensued between Williams
and Moore was recorded by Holloman’s voicemail. In that conversation, Williams told
Moore about another Red River salesman who had provided notice to the company that
he would be leaving, however, he offered to stay on to deliver products to his customers.
Williams remarked that he would not have made the same offer, as Red River is
unappreciative of its employees. This comment was made while Super One customers
were passing by, but Williams submits that no Super One management was within earshot.
Id. at p. 6.
Upon hearing the recording, Red River management issued Williams a disciplinary
notice and then immediately terminated his employment. The violation warning stated
that he had made slanderous comments about Red River during a conversation with a
customer. Record Document 49-7, p. 15. The termination notice was also based upon
“multiple warnings, write ups and evaluations.” Id. at p. 16. Williams, who was sixtythree at the time of his termination, filed the instant suit alleging both racial and age
discrimination in violation of Title VII and the Age Discrimination in Employment Act,
respectively. Record Documents 54, p. 1 & 29, p. 3.
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STANDARD
Federal Rule of Civil Procedure 56(a) directs that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Summary judgment is appropriate
when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on
file indicate that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, (1986). When the burden at trial will rest on the non-moving party, the
moving party need not produce evidence to negate the elements of the non-moving party’s
case; rather, it need only point out the absence of supporting evidence. See Celotex, 477
U.S. at 322-323.
If the movant satisfies its initial burden of showing that there is no genuine dispute
of material fact with the motion for summary judgment, the nonmovant must demonstrate
that there is, in fact, a genuine issue for dispute at trial by going “beyond the pleadings”
and designating specific facts for support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). “This burden is not satisfied with ‘some metaphysical doubt as to the
material facts,’” by conclusory or unsubstantiated allegations, or by a mere scintilla of
evidence. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586, 106 S. Ct. 1348 (1986)). However, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505 (1986) (internal citations omitted); Reid
v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986) (the court must “review
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the facts drawing all inferences most favorable to the party opposing the motion”). While
not weighing the evidence or evaluating the credibility of witnesses, courts should grant
summary judgment where the critical evidence in support of the nonmovant is so weak
and tenuous that it could not support a judgment in the nonmovant’s favor. Little, 37
F.3d at 1075.
Additionally, Local Rule 56.1 requires the moving party to file a statement of
material facts as to which it contends there is no genuine issue to be tried. Pursuant to
Local Rule 56.2, the party opposing the motion for summary judgment must set forth a
“short and concise statement of the material facts as to which there exists a genuine issue
to be tried.” All material facts set forth in the statement required to be served by the
moving party “will be deemed admitted, for purposes of the motion, unless controverted
as required by this rule.” Local Rule 56.2.
LAW AND ANALYSIS
I.

Race Discrimination
Title VII of the Civil Rights Act makes it an unlawful employment practice for an

employer to refuse to hire or to discharge, or otherwise discriminate against any individual
with respect to his or her “compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. §
2000e-2(a)(1). “The Title VII inquiry is whether the defendant intentionally discriminated
against the plaintiff.” Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007)
(quoting Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004)). Intentional
discrimination can be established through either direct or circumstantial evidence. Id.
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Direct evidence of discrimination “proves the existence of a fact without any inferences or
presumptions. Most often, direct evidence takes the form of a discriminatory statement
directly connected to the plaintiff’s discharge.”

McMichael v. Transocean Offshore

Deepwater Drilling, Inc., 934 F.3d 447, 456 (5th Cir. 2019) (internal marks and citations
omitted).
When a plaintiff has no direct evidence of discrimination, the courts are to apply
the McDonnell Douglas burden-shifting framework. 1 See Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097 (2000). To sustain a claim under this
framework, a plaintiff first must establish a prima facie case of discrimination, which
creates a presumption of intentional discrimination. Alvarado, 492 F.3d at 611. If a plaintiff
is able to set forth a prima facie case of discrimination, the burden then shifts to the
employer to produce evidence that its actions were justified by a legitimate, nondiscriminatory reason. Reeves, 530 U.S. at 142. If the employer provides a legitimate,
non-discriminatory reason for its employment action, the presumption of discrimination
disappears and “the burden shifts back to the plaintiff to establish either: (1) that the
employer's proffered reason is not true but is instead a pretext for discrimination; or (2)
that the employer's reason, while true, is not the only reason for its conduct, and another
‘motivating factor’ is the plaintiff's protected characteristic.” Alvarado, 492 F.3d at 611.
This second showing, known as the “mixed-motive framework,” is not part of the
traditional McDonnell Douglas framework but is employed by the courts in this circuit in
an identical manner. Under the mixed-motive inquiry, if the plaintiff can demonstrate that

1

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)
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the protected characteristic (here, race) was a motivating factor, then it “falls to the
defendant to prove that the same adverse employment decision would have been made
regardless of discriminatory animus. If the employer fails to carry this burden, plaintiff
prevails.” Rachid v. Jack In The Box, 376 F.3d 305, 312 (5th Cir. 2004) (internal marks
omitted).
a.

Prima Facie Case

Generally, a plaintiff can establish a prima facie case of discrimination by showing
that: (1) he is a member of a protected group; (2) he was qualified for the position at
issue; (3) he was discharged or suffered some adverse employment action by the
employer; and (4) he was treated less favorably than other similarly situated employees
who were not members of the protected class, under nearly identical circumstances or he
was replaced by someone outside of the protected group. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 & n.13, 93 S. Ct. 1817 (1973); Sanders v. Christwood, 970
F.3d 558, 561 (5th Cir. 2020); McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
2007).
In the instant case, Red River concedes that Williams is a member of a protected
class (element one) and it agrees that he was terminated from his employment (element
three). It does, however, dispute that Williams was qualified for his position (element
two). Unfortunately, its motion does not address whether Williams was treated less
favorably than other employees of a different class or whether he was replaced by
someone outside of his own class (element four). The Court will address elements two
and four, in turn, taking Red River’s silence into account.
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As to element two, Williams’s qualification for his position, Red River submits that
“[t]he failure to adhere to Defendant’s policy and admitted inability to perform his job
duties rendered Plaintiff unqualified for his job and prevents him from establishing a prima

facie case related to his termination.” Record Document 49-5, p. 9. This argument,
however, is foreclosed by Fifth Circuit precedence established in Bienkowski v. American
Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988).
In Bienkowski, the defendant-employer alleged that the plaintiff was not qualified
for his job, even though his performance had been satisfactory for ten years, “because his
supervisors became unsatisfied with his work.” Id. at 1505.

The defendant contended

that to prove a prima facie case of discrimination, the plaintiff was required to demonstrate
that he performed his job to the standards of his employer. Id. The Fifth Circuit disagreed,
holding that “a plaintiff challenging his termination . . . can ordinarily establish a prima
facie case of . . . discrimination by showing that he continued to possess the necessary
qualifications for his job at the time of the adverse action.” Id. at 1506. Clarifying, the
court stated this meant that the “plaintiff had not suffered physical disability or loss of a
necessary professional license or some other occurrence that rendered him unfit for the
position for which he was hired.” Id. at 1506 n.3. It reasoned that inquiring into a
plaintiff’s qualifications at both the prima facie and pretext stages of the McDonnell
Douglas analysis would create an “unnecessary redundancy.” Id. at 1505. Thus, per
Bienkowski, if a plaintiff can successfully establish that he continued to possess the
necessary qualifications to perform his job duties, he has satisfied that element of his
prima facie case. “The lines of battle may then be drawn over the employer's articulated
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reason for its action and whether that reason is a pretext for . . . discrimination.” Id. at
1506.
Accordingly, Red River’s argument that Williams cannot establish a prima facie case
of discriminatory discharge because he cannot prove he was qualified for his sales position
is unavailing. There is no evidence in the record that some event, such as suffering a
physical disability or losing a necessary professional license, prevented Williams from
working for Red River with the same experience, qualifications, and skillset he possessed
when hired. Because there is no dispute that Williams was actually qualified for the
position of salesman when he was hired, the Court finds that Williams has satisfied this
element of his prima facie case. See also Berquist v. Wash. Mut. Bank, 500 F.3d 344 (5th
Cir. 2007) (explaining that because plaintiff possessed the same job qualifications when
defendant fired him as when he was initially hired for that position, plaintiff “need not
show that his performance met [defendant’s] expectations to establish a prima facie
case.”).
The Court now turns to element four of the prima facie case. The final prong of
establishing a prima facie case of racial discrimination requires Williams to show that he
was replaced by someone outside of his protected class or he was treated less favorably
than a “similarly situated comparator of another race;” the latter is referred to as disparate
treatment. Harris v. Drax Biomass Inc., 813 F. App’x 945, 948 (5th Cir. 2020). Williams
claims he meets this element in two ways: (1) he was replaced by Barry Frost (“Frost”),
a Caucasian employee and (2) he was fired because of the November conversation with

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Moore, a Caucasian employee, while Moore was not fired or even disciplined. 2 Red River
does not dispute that Williams was replaced by Frost, who is Caucasian and thus outside
of Williams’s protected class. As such, the Court finds that Williams has established that
he was replaced by someone outside of his protected class, and hence, has set forth a
prima facie case of racial discrimination.
However, to the extent Williams claims he has established element four through
evidence of disparate treatment, the Court disagrees. Williams has failed to set forth a
prima facie case of disparate treatment regarding his allegation that he was treated less
favorably than Moore, an allegedly similarly situated employee. Similarly situated
employees are called “comparators” under Title VII jurisprudence. In identifying
comparators, the Fifth Circuit has defined “similarly situated employees” narrowly. “[A]n
employee who proffers a fellow employee as a comparator [must] demonstrate that the
employment actions at issue were taken ‘under nearly identical circumstances.’ ” Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009); Perez v. Tex. Dep't of Criminal
Justice, Inst'l Div., 395 F.3d 206, 213 (5th Cir. 2004) (“[F]or employees to be similarly
situated those employees’ circumstances, including their misconduct, must have been
‘nearly identical.’ ”). Nearly identical circumstances exist “where the employees being
compared held the same job or responsibilities, shared the same supervisor or had their
employment status determined by the same person, and have essentially comparable

In his declaration, Williams attests that Moore is Caucasian and that Frost is not African
American. Record Document 54-1, p. 10. He declares that upon further investigation,
he learned that Frost is Caucasian. Id. Because Red River does not dispute that Frost is
Caucasian, the Court will assume this as a fact for purposes of this ruling.
2

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violation histories.” Lee, 574 F.3d at 260. And most importantly, “the plaintiff’s conduct
that drew the adverse employment decision must have been ‘nearly identical’ to that of
the proffered comparator who allegedly drew dissimilar employment decisions.” Id.
Here, the sum total of Williams’s argument on this point is: “Bobby Moore is an
example of someone who was not of Mr. Williams’ race but received favorable treatment
even though he was a part of the same conversation for which Mr. Williams was ultimately
terminated.” Record Document 54, p. 20. This single argument fails to carry Williams’s
burden. Without competent evidence from which the Court might compare the two
employees, the Court cannot make a finding that this element has been satisfied. Williams
has provided no evidence of Moore’s job duties or responsibilities, who supervised him, or
critically, Moore’s violation history with Red River. On this latter point, Red River’s human
resources manager, Davis, stated in her declaration that Moore did not share the same
disciplinary history as Williams and that he did not have multiple write-ups within a singe
year.
Of paramount importance here, Moore’s alleged misconduct (participating in the
November conversation with Williams) is not “nearly identical” to Williams’s conduct, as
required by the jurisprudence. Indeed, Williams himself conceded during his deposition
that Moore did not make any independent remarks about Red River but merely agreed
with Williams’s comments. Record Document 49-6, p. 9. See also Lee, 574 F.3d at 260
(“If the difference between the plaintiff's conduct and that of those alleged to be similarly
situated accounts for the difference in treatment received from the employer, the
employees are not similarly situated for the purposes of an employment discrimination
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analysis.”). To establish disparate treatment, a plaintiff must show the employer gave
preferential treatment to another employee outside the protected class under nearly
identical circumstances. Lee, 574 F.3d at 260. Williams has failed to identify a similarly
situated comparator who received better treatment.
b.

Legitimate Nondiscriminatory Reason

Because Williams has established a prima facie case of discrimination by showing
he was replaced by Frost, who is outside of his protected class, the burden shifts to Red
River to articulate a legitimate, nondiscriminatory reason for its employment action. See
Reeves, 530 U.S. at 142. In order to meet its burden, Red River “must provide both ‘clear
and reasonably specific reasons’ for its actions.” Okoye v. Univ. of Tex. Hous. Health Sci.
Ctr., 245 F.3d 507, 513 (5th Cir. 2001) (quoting Tex. Dep’t. of Cmty. Affairs v. Burdine,
450 U.S. 248, 258 (1981)). This is a burden of production, not persuasion, and “can
involve no credibility assessment.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113
S. Ct. 2742 (1993); see also Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech.
Coll., 719 F.3d 356, 363 (5th Cir. 2013). Red River has satisfied this burden by asserting
that Williams was discharged because of his repeated infractions and warnings, his
insubordination, and his poor interactions with management. See Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (“Poor work performance is a
legitimate, non-discriminatory reason for discharge.”); Rochon v. Exxon Corp., 203 F.3d
827 (5th Cir. 1999) (“Violation of a work-rule is a legitimate, nondiscriminatory reason for
termination.”).

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As Red River has satisfied its burden of production by articulating a legitimate,
nondiscriminatory reason for firing Williams, “the inference of discrimination raised by the
prima facie case drop[s] from this case.” Shackelford v. Deloitte & Touche, 190 F.3d 398,
408 (5th Cir. 1999). Hence, summary judgment is appropriate unless Williams can prove
that Red River’s reasons are pretextual or that his race was a motivating factor in his firing.
c.

Pretext

To demonstrate pretext, a plaintiff must show that the employer’s proffered reason
for the termination is “false or ‘unworthy of credence.’ ” Mackey v. Enventives, 802 F.
App’x 835, 837 (5th Cir. 2020) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.
2003)). Pretext must be shown by a preponderance of the evidence. Tatum v. S. Co.
Servs., 930 F.3d 709, 713 (5th Cir. 2019). Williams must produce evidence that would
“permit a jury to believe that [the] proffered reason for firing [him] was not its true reason
but simply pretext for a racially discriminatory reason.” Vaughn v. Woodforest Bank, 665
F.3d 632, 637 (5th Cir. 2011). The question is whether Red River’s explanation, “accurate
or not, is the real reason for firing” Williams. Id. Put another way, would “a reasonable
jury . . . believe [plaintiff’s] version of events and conclude that [defendant’s] stated
reason for laying him off is false.” Mackey, 802 F. App’x at 837.
In this case, Williams contends he was fired because he is African American. There
is no explanation or support for this belief aside from the fact that a white salesman
replaced him. Indeed, unlike many other cases alleging race discrimination, Williams has
not identified a single racially offensive comment made by Red River, nor has he alleged
any use of inflammatory or derogatory language at the company. To be sure, Williams
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admits no Red River employee and no one in management ever made a racial slur or racial
comment about him. Record Document 49-6, p. 31. He does not contend a racially
insensitive culture existed within Red River or that one was harbored by Red River decision
makers. He does not assert that the environment within Red River was hostile to African
American employees due to explicit or perceived racism. Aside from his claim that Moore
was treated more favorably than he was on one occasion, Williams does not allege that
Red River treated African Americans poorly as compared to any other race. He has not
argued that as an African American salesman, company management placed expectations
and duties on him that were not shared by the salesmen of other races. Williams has
neither alleged nor identified any pattern of hiring or firing that would disfavor African
American employees or applicants. Put simply, Williams’s complaint, amended complaint,
and opposition to summary judgment are entirely devoid of support for the alleged race
discrimination.
The undisputed facts in the record establish that Williams committed several
violations of company policy within a single year, that he was written up for those
violations, and that he was warned that future conduct could result in discharge. The
undisputed facts show that Red River tried to work with Williams before resorting to firing
him; it rescinded his probation in one instance and put him on a performance review plan
in another instance. While it may be true that Frost, a Caucasian salesman, was hired to
replace Williams, Williams has not provided the Court with any information to suggest that
this decision warrants a finding of discrimination. There is no evidence in the record
regarding Frost’s credentials, experience, qualifications, or skills, and Williams has not
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alleged that Frost was not qualified to perform the job. Thus, the Court cannot conclude
that Frost was hired simply because he is white.
What lies at the crux of this case is Williams’s vehement disagreement with the job
duties of various Red River employees, including the sales force. Specifically, it is his belief
that the duties and responsibilities of the sales staff are too onerous and unreasonable for
certain store accounts, and as such, he should not have been expected to meet those
demands. He then makes the logical leap that because, in his estimation, other employees
should have been required to fulfill those duties, then any disciplinary violations aimed at
him as a salesman were unwarranted and unlawful. As an initial matter, these arguments
fail because they concern a business judgment this Court may not reconsider, namely the
job duties for which the sales force is responsible.
However, as a legal matter, the Court would be remiss not to identify the fatal flaw
in Williams’s claim—he does not assert that the Red River policies, with which he fervently
disagrees, were created or implemented in a discriminatory manner, or that they resulted
in discrimination. All salesmen, regardless of race, were governed by the exact same
duties and expectations.
Williams’s efforts to satisfy the pretext element of his case are unpersuasive.
Williams does not dispute that he was repeatedly written up for violations of company
policy, and he concedes that he received each of the Red River warnings discussed above.
He contends, however, that if the jury believes that the allegations in the warning notices
were not true, then the jury may conclude the notices were simply a pretext for
discrimination.

In this same vein, Williams asserts that there are genuine issues of
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material fact as to whether he adhered to company policy, whether he made slanderous
remarks on the November recording, whether those statements were made in front of a
customer, and/or whether he was actually combative during encounters with
management, as alleged. But those are not the issues before the Court. The question
before this Court is whether Williams’s discharge was based upon racial discrimination.
More precisely, the Court’s inquiry at this stage is whether the write-ups were simply
pretext for discrimination.

Though Williams asserts that a jury determination that any of

the facts underlying those warning notices were not true means that he has established
pretext, the Court disagrees.
As the Fifth Circuit has explained, “a plaintiff cannot prove that an employer's
proffered reason is pretextual merely by disputing the correctness of the employer's
decision.” Burton v. Tex. Dep’t of Criminal Justice, 584 F. App'x 256, 257 (5th Cir. 2014)
(citations omitted). Indeed, when conducting a pretext analysis, “the issue is not the truth
or falsity of the allegations [against the employee], but whether the employer reasonably
believed the . . . allegation and acted on it in good faith.” Jackson v. Cal-W. Packaging
Corp., 602 F.3d 374, 379 (5th Cir. 2010). To be sure, courts “do not engage in secondguessing of an employer's business decisions. Title VII does not require employers to make
correct decisions, only nondiscriminatory decisions.” Burton, 584 F. App’x at 258 (internal
citations and marks omitted). Even if Williams did produce evidence that disputed some
facts set forth in the warning notices, the Fifth Circuit has stated that “[t]he existence of
competing evidence about the objective correctness of a fact underlying a defendant's
proffered explanation does not in itself make reasonable an inference that the defendant
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was not truly motivated by its proffered justification.” Little v. Republic Ref. Co., Ltd., 924
F.2d 93, 97 (5th Cir. 1991); see also Jackson, 602 F.3d at 379 (“Jackson’s assertion of
innocence alone does not create a factual issue as to the falsity of Cal-Western’s proffered
reason for terminating him.”). Therefore, a jury disbelieving the allegations in the warning
notices is insufficient, standing alone. See Collier v. Dall. Cty. Hosp. Dist., 827 F. App'x
373 (5th Cir. 2020) (explaining that though a plaintiff “may quarrel with the specific details
of these events,” he still must present evidence of pretext). The jury must have a legally
sufficient reason to infer racial discrimination, and it is that link which is absent in this
case.
Simply put, Williams’s only evidence of pretext is his belief that Red River’s stated
reason for firing him is pretext. 3 A plaintiff's beliefs are not competent summary judgment
evidence, and the employer is entitled to judgment as a matter of law if the record
“conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision.”
Chapple v. Tex. Health and Human Servs. Comm’n, 789 F. App’x 985, 990 (5th Cir. 2019)
(quoting Reeves, 530 U.S. at 148); see also Lawrence v. Univ. of Tex. Med. Branch at
Galveston, 163 F.3d 309, 313 (5th Cir. 1999) (“a subjective belief of discrimination,
however genuine, [may not] be the basis of judicial relief.” (internal marks omitted)).
Here, based on the undisputed record, a reasonable jury would not conclude that Red
River’s stated reason for firing Williams was false or unworthy of credence.

To the extent Williams intended to pursue a disparate treatment theory as a method of
proving pretext, that falls short for the reasons set forth earlier in this opinion. As
discussed above, Williams has not established that Moore is a proper comparator. Thus,
he cannot establish pretext merely by showing that Moore was not fired.

3

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d.

Mixed Motive

Even when a plaintiff fails to show that the defendant’s reason for terminating him
was pretext for discrimination, he can still survive summary judgment if he can
demonstrate that his race was a motivating factor in the employment decision. Here,
Williams has made no discernible effort to set forth a mixed motive theory of his case. In
any event, this claim would fail for the same reasons set forth above.

That is, the

undisputed facts show that Williams’s termination was based upon his repeated violations
of company policy and not upon his race. Williams has failed to present any evidence that
his race played a role in the decision to fire him. Rather, at most, Williams has shown
that Red River’s decision was plausibly motivated by what it perceived as a disagreeable
and noncompliant employee. Nonetheless, as long as a protected class or characteristic
is not at issue, personality conflicts and interpersonal clashes are not shielded by Title VII.
Indeed, “rightly or wrongly, the employment-discrimination laws have not vested in the
federal courts the authority to sit as super-personnel departments reviewing the wisdom
or fairness of the business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.” Eyob v. Mitsubishi Caterpillar Forklift Am.,
Inc., 745 F. App'x 209, 214–15 (5th Cir. 2018), as revised (Aug. 10, 2018) (internal marks
omitted). Thus, the Court finds that a reasonable jury could not conclude that Williams’s
race was a motivating factor in Red River’s decision to fire him.
e.

Conclusion on Race Discrimination

Williams has failed to carry his burden of showing that Red River’s proffered reason
for the termination of his employment was not true or that race was a motivating factor.
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Accordingly, Red River’s motion for summary judgment is GRANTED as to Williams’s race
discrimination claim.
II.

Age Discrimination
Williams next argues he was fired based on his age. The Age Discrimination in

Employment Act (“ADEA”) makes it unlawful for an employer “to discharge any individual
or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. §
623(a)(1). The ADEA protects workers who are at least forty years old from age-based
discrimination. Id. at § 631(a).
As the Fifth Circuit explained in McMichael, in both direct and indirect evidence
cases, the plaintiff may point “to age-related comments made by a person in charge of
firing” in order to show discrimination. McMichael, 934 F.3d at 457. However, “[i]n direct
evidence cases, comments must meet a demanding standard because the plaintiff relies
on them “to prove the entire case of discrimination.” Id. (citing Goudeau v. Nat'l Oilwell
Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015)). As such, the comments “must be more
than stray remarks.” Id. (citing E.E.O.C. v. Tex. Instruments, 100 F.3d 1173, 1181 (5th
Cir. 1996)).

Instead, the comment must be “direct and unambiguous, allowing a

reasonable jury to conclude without any inferences or presumptions that age was an
impermissible factor in the decision to terminate the employee.” Id. (internal marks
omitted). Thus, “for a comment to prove age discrimination it must be (1) age related,
(2) proximate in time to the employment decision, (3) made by an individual with authority
over the employment decision at issue, and (4) related to the employment decision at
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issue. Id. (quoting Moss v. BMC Software, 610 F.3d 917, 929 (5th Cir. 2010)). Age-related
comments can still be considered in a discrimination case even if they were not made “in
the direct context of the termination.” Id. (quoting Palasota v. Haggar Clothing Co., 342
F.3d 569, 578 (5th Cir. 2003)). However, overall, this is a stringent standard and if
comments fall short of satisfying it, they cannot defeat summary judgment. See id.; see
also Jackson, 602 F.3d at 380 (“Comments that do not meet these criteria are considered
‘stray remarks,’ and standing alone, are insufficient to defeat summary judgment.”
(citations omitted)).
In the instant case, Williams has identified only one age-related comment made by
anyone at Red River. The Court will examine this remark to determine whether it can be
considered direct evidence of discrimination. Williams alleges that in 2016, he commented
that his back was stiff, and Page (his supervisor) allegedly stated, “Terry, you’re just old.”
Record Document 49-6, p. 32. Williams has identified no other remarks that were made
regarding his age or the age of other Red River employees.
Although this statement occurred in the same year that Williams was fired and it
was made by Page, who is someone with authority over the employment decision at issue,
this statement cannot serve as direct evidence of discrimination. First, Williams has failed
to identify when during the 2016 year the comment was made; yet, the pleadings make
it clear that it was not made in connection with his discharge from the company. Thus,
Williams has not alleged that Page’s remark was proximate in time to his firing nor has he
attempted to demonstrate that the remark was related to Red River’s decision to terminate
him. Accordingly, the comment does not constitute direct evidence of discrimination.
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When the plaintiff lacks direct evidence of age discrimination, he can employ the
McDonnell Douglas burden shifting framework. See Rachid, 376 F.3d at 312. Once again,
the plaintiff must first establish a prima facie case of discrimination. Then, the burden
shifts to the defendant to produce evidence that the plaintiff was terminated for a
nondiscriminatory reason. If the defendant satisfies this burden, the plaintiff must show
the legitimate reason offered by the defendant was not its true reason, but was pretext
for discrimination. Id. at 308 n.3.

“It is at this third stage that the plaintiff must

demonstrate that age was the ‘but-for’ cause of the defendant’s employment decision,
notwithstanding the defendant’s putative non-discriminatory reason for the decision.”
Dubea v. Sch. Bd. of Avoyelles Par., 546 F. App'x 357, 360 (5th Cir. 2013) (citing Reed v.
Neopost USA, Inc., 701 F.3d 434, 439–40 (5th Cir. 2012)). Thus, merely proving that age
was a motivating factor in the employer’s decision is not enough. Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 180, 129 S. Ct. 2343 (2009) (a “plaintiff must prove by a
preponderance of the evidence . . . that age was the ‘but-for’ cause of the challenged
employer decision”); see also Moss, 610 F.3d at 928 (explaining that, in Gross, “the
Supreme Court rejected the application of Title VII’s ‘motivating factor’ standard to ADEA
cases.”).
a. Prima Facie Case
To prove a prima facie case of age discrimination, Williams must show that he was:
(1) discharged; (2) qualified for the position; (3) within the protected age group at the
time of the discharge; and (4) either (a) replaced by someone younger, (b) replaced by
someone outside the protected class, or (c) otherwise discharged because of his age.
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Rachid, 376 F.3d at 309. As to element two, Red River once again argues that Williams
was not qualified for his position. The Court has already rejected this argument. In light
of Red River’s silence on the remaining elements, the Court assumes arguendo that
Williams has satisfied his prima facie burden at this stage.
b.

Legitimate Nondiscriminatory Reason

The Court next considers whether Red River has sufficiently articulated a legitimate
nondiscriminatory reason for firing Williams. For the reasons set forth above in the race
discrimination analysis—namely, that Red River has asserted that Williams was discharged
because of his repeated infractions, insubordination, and poor interactions with
management—, the Court finds that Red River has met this burden.
c.

Pretext

Now, Williams must establish pretext.

To do so, he can show that “(1) a

discriminatory reason more likely motivated the employer, (2) the employer’s reason is
unworthy of credence, or (3) he is clearly better qualified than the person selected for the
position.” McMichael, 934 F.3d at 457 (internal citations and marks omitted). Here,
Williams has not established that Red River’s justification is false or unworthy of belief for
the same reasons identified in the race discrimination analysis. Similarly, Williams has not
claimed he was better qualified for the job than Frost, who replaced him. Thus, Williams’s
only avenue to demonstrating pretext is by showing that Red River was motivated by
discrimination and that, but for discrimination, it would not have fired him.
One method of establishing pretext is by using discriminatory statements to
demonstrate that discrimination motivated the employer to make the challenged decision.
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In a pretext analysis, “the discriminatory remarks are just one ingredient in the overall
evidentiary mix.” Goudeau, 793 F.3d at 475 (holding that discriminatory remarks are
relevant at the pretext stage and a less “demanding test applies”). “[T]he plaintiff must
show that the comments involve (1) discriminatory animus (2) on the part of a person
that is either primarily responsible for the challenged employment action or by a person
with influence or leverage over the relevant decisionmaker.” McMichael, 934 F.3d at 45758 (quoting Reed, 701 F.3d at 441 (internal marks omitted)). As the Fifth Circuit explained
in McMichael,
Courts typically only find a statement to be evidence of age discrimination in
two situations. First, courts will find evidence of age discrimination where a
statement references age in a derogatory or stereotypical way. See, e.g.,
Rachid, 376 F.3d at 315 (finding evidence of age discrimination where the
employer told the plaintiff “. . . you’re too old”). Second, courts will find
evidence of age discrimination where the employer’s statement shows a
desire to replace older employees with younger ones. See, e.g., Palasota,
342 F.3d at 577–78 (finding sufficient evidence to sustain a jury verdict
where the employer stated that the plaintiff’s “sales techniques were out of
the ‘old school’ of selling”; commented that “there was a ‘graying of the sales
force’ ” and the employer needed “to find a way to get through it;” and
recommended severance packages for fourteen named employees, all of
whom were specifically identified as over fifty years of age, to create “the
flexibility to bring on some new players”).
McMichael, 934 F.3d at 458.
Williams’s assertion that Page’s comment constitutes indirect evidence of
discrimination falls short. Again, the Court has been given no indication when in 2016
Page made this comment. Williams has presented absolutely no argument to suggest that
the comment was related to his ultimate termination. Thus, Williams’s case lacks two
critical components: temporal proximity and relation or connectivity between the comment
and the decision. The jurisprudence is clear that “sporadic” comments “untethered to
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specific speakers or times” do not show a genuine dispute of material fact as to the
ultimate issue, which is whether the employer discriminated against the employee. Reed,
701 F.3d at 442 (insufficient evidence where plaintiff claimed that co-workers called him
“old man,” “old fart,” “pops,” and “grandpa,” but he could not identify the speakers or
when the comments were allegedly made, he never reported the comments to
management, and his alleged harassers had no authority over his termination); see also
Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 783 (5th Cir. 2015) (comment by
manager that he would hire “young kids” if plaintiff could not do his job failed to prove
discrimination); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995)
(manager’s comments to plaintiff’s fifty-one-year-old co-worker that co-worker was
“getting old” and “losing her memory” were too remote and vague to be probative of age
discrimination against fifty-three-year-old plaintiff); Waggoner v. City of Garland, Tex.,
987 F.2d 1160, 1166 (5th Cir. 1993) (stray remarks like “a younger person could do faster
work” or calling someone an “old fart” are insufficient to establish discriminatory animus);
Turner v. N. Am. Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992) (age-related comments
that are vague and remote in time, such as supervisor’s comment that he would send
“three young tigers” to assist older employee, constitute stray remarks that fail to establish
discrimination). In other words, “a comment is not evidence of discrimination if it is the
sole proof of pretext, or if it is not made in temporal proximity to the adverse employment
decision.” Cervantez v. KMGP Servs. Co. Inc., 349 F. App'x 4, 11 (5th Cir. 2009) (because
stray remark was the only evidence of pretext, it was not probative of discriminatory
intent).
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In the instant case, Williams has not identified any alleged discriminatory conduct
aside from Page’s one remark. Galvanized solely with this one remark, Williams must at
the very least come forward with evidence that Page’s comment was made at or near the
time of his discharge and/or that his discharge stemmed from or could be related back to
Page’s comment. However, based upon the record in this case, the comment appears
wholly unrelated to Williams’s discharge and he has presented no evidence to show
otherwise. See Jackson, 602 F.3d at 380.
And, aside from Page’s comment, Williams has produced no further evidence that
he was discriminated against because of his age. There is no suggestion that Red River
systemically disfavored older workers or harbored animus against them. Cf. Goudeau,
793 F.3d at 476 (plaintiff’s supervisor’s repeated remarks about “old people, calling
plaintiff an “old fart,” saying plaintiff wore “old man clothes” and his stated intention to
fire two older workers, in connection with suspicious timing, constituted indirect evidence
of discrimination; Machinchick v. PB Power, Inc., 398 F.3d 345, 352 (5th Cir. 2005)
(company’s stated business plan to assemble a younger workforce, combined with age
stereotyping remarks, such as stating that plaintiff was unable to adapt to changing
environments, created an inference that plaintiff’s age was a factor in his termination);
Rachid, 376 F.3d at 313 (plaintiff’s supervisor’s repeated ageist comments established
evidence of discrimination); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th
Cir. 2000) (pretext established by evidence of age-related remarks, such as “old bitch,”
that were made by a younger manager who wielded enough informal power within the
company to effectively become the decisionmaker).
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Here, Red River hired Williams when he was fifty-four years old and he worked
there until he was sixty-three. Further, two of the three decisionmakers responsible for
firing him were over the age of forty—Page was forty-eight, while Holloman was fifty.
Record Document 49-3, p. 4. Page’s and Holloman’s membership in the same protected
class as Williams further undercuts any inference of age discrimination. See Brown v. CSC
Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996), abrogated on other grounds by Reeves, 530
U.S. at 134 (an inference that age discrimination is not the motive arose because fiftyeight-year-old plaintiff was fired by his sixty-year-old employer); Kelly, 632 F. App'x at 783
(manager who terminated plaintiff was three years older than plaintiff at the time,
“bolster[ing] the inference that age discrimination was not the reason for his termination”).
In addition, there is evidence that Moore, who allegedly participated in the same
conversation as Williams and for which he was ultimately terminated, was sixty-four years
old. Yet, despite his age, Moore was not disciplined or fired by Red River, serving to
further undermine Williams’s allegations.
e.

Conclusion as to Age Discrimination

Williams’s sole evidence of pretext is one remark made by Page, who was in the
same protected class as Williams at the time the remark was made. Williams cannot
connect this stray remark to the ultimate decision to fire him, nor can he establish that it
was made close in time to the decision to terminate his employment. He has not alleged
that any other employee or member of management ever made another single comment
regarding his age. He cannot establish Red River harbored age-based animus or that it
favored younger workers.

Williams’s proof, consisting solely of Page’s remark, falls
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woefully short of proving pretext. Ultimately, Williams cannot establish that but-for his
age, Red River would not have fired him. For these reasons, summary judgment is
GRANTED as to Williams’s claim of age discrimination in violation of the ADEA.
III.

Conclusion
As set forth above, the Court finds that summary judgment is appropriate for both

Williams’s race discrimination claim and his age discrimination claim. Therefore, Red
River’s motion for summary judgment is GRANTED, and Williams’s claims against Red
River are hereby DISMISSED WITH PREJUDICE.
A judgment consistent with this Memorandum Ruling shall issue herewith.
19th
THUS DONE AND SIGNED this 18th day of November, 2020.
X

ELIZABETH E. FOOTE
UNITED STATES DISTRICT JUDGE

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