Coleman v. Oracle USA, Inc.
Filing
80
ORDER granting in part and denying in part 58 Motion for Summary Judgment; granting 61 Motion to Exclude Expert Testimony (Written Opinion). Signed by Senior Judge David S. Doty on 7/14/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 09-3472(DSD/JJG)
Austin H. Coleman II,
Plaintiff,
ORDER
v.
Oracle USA, Inc.,
Defendant.
James H. Kaster, Esq., Katherine M. Vander Pol, Esq.,
Matthew H. Morgan, Esq. and Nichols Kaster, PLLP, 80
South Eighth Street, Suite 4600, Minneapolis, MN 55402,
counsel for plaintiff.
Daniel Oberdorfer, Esq., Amy B. Conway, Esq. and Leonard,
Street & Deinard, 150 South Fifth Street, Suite 2300,
Minneapolis, MN 55402, counsel for defendant.
This matter is before the court upon the motions to exclude
expert opinions and for summary judgment by defendant Oracle USA,
Inc. (Oracle).1
Based
on
a
review
of
the file,
record
and
proceedings herein, the court grants the motion to exclude expert
opinions and grants in part the motion for summary judgment.
BACKGROUND
This employment dispute arises out of the termination of
plaintiff Austin H. Coleman II by Oracle on January 5, 2009.
Oracle sells computer software. Compl. ¶ 7. Coleman began working
at Oracle in 1999 as a business development manager.
1
Oracle USA, Inc. is now Oracle America, Inc.
Id. ¶ 8.
From February 2003 until his termination, Coleman worked as an
application sales manager (ASM).
Coleman’s direct supervisor.
Regional Manager Tony Huff was
Id. ¶ 11.
From fiscal year 2007
through Coleman’s termination, Huff reported to Regional Vice
President Ted Stuart.
Id. ¶ 11.
In fiscal years 2008 and 2009,
three Regional Managers, including Huff, and forty ASMs, including
Coleman, reported to Stuart.
Stuart Dep. 8; Morgan Aff. Ex. 27.
Coleman’s primary duty was to sell software.
Stuart Dep. 72.
Compl. ¶ 9;
Oracle assigns each ASM a sales territory, or
sales patch, comprised of companies from which the ASM can solicit
sales.
Compl. ¶ 12.
A “net new” territory or account refers to a
company that does not own any Oracle applications.
26.
Coleman Dep.
An “install” territory or account refers to a company that
already owns an Oracle application.
ASM a sales quota.
Id.
Oracle also assigns each
Oracle provides resources to help ASMs reach
their sales quotas, including allowing ASMs to work with sales
consultants.
Id.
at
60-61.
approximately $250 per hour.
Sales
consultants
cost
Oracle
Tate Dep. 63.
In fiscal year 2004, Coleman achieved 149% of his sales quota
and Huff gave Coleman the highest possible “Composite Performance
Rating” of five for “exceptional performance.” Morgan Aff. Ex. 17.
In fiscal year 2005, Coleman again made his sales quota; Huff gave
Coleman an “Overall Rating” of “5-Outstanding” and commented that
Coleman “is an asset to our organization.”
2
Id. Ex. 18.
In April 2006, Huff and Craig Tate2 met with Human Resources
Manager Siobhan Donnelly because they were concerned that Coleman
was unlikely to meet his quota for fiscal year 2006.
Dep. 49.
See Donnelly
Huff and Tate wanted to place Coleman on a performance
improvement plan (PIP).
Donnelly believed that a PIP was not
warranted and instead recommended that they place Coleman on a
performance expectation plan (PEP). See id. at 51-53. Oracle uses
a PEP when an ASM first exhibits performance problems; a PEP does
not include language regarding termination.
53.
On
April
19,
2006,
Huff
placed
See id. at 30-31, 51-
Coleman on
a
PEP that
identified several “problem areas” and five specific goals for
performance improvement.
See Oberdorfer Aff. Ex. G.
Coleman met
two of the five stated goals before the end of the fiscal year.
See Coleman Dep. 36.
In the fiscal year 2006 review, Huff gave
Coleman an “Overall Rating” of “2-Needs improvement/new to job.”
Morgan Aff. Ex. 22.
Huff commented that “[Coleman] is solid in
almost every respect .... [C]onsistency needs to be [Coleman’s]
strength for FY 07.”
Id.
In fiscal year 2007, Coleman again failed to meet his quota.
In the fiscal year 2007 review, Huff gave Coleman an “Overall
Rating” of “3-Successfully meets expectations.”
Id. Ex. 23.
Huff
commented that “[Coleman] had a very solid [fourth quarter], he had
2
In fiscal year 2006, Tate was the Regional Vice President
overseeing Huff’s team. See Donnelly Dep. 41.
3
several deals in play which had they closed rather than slipped he
[would] have made his quota.”
Id. at 000342.
During fiscal year 2008, Stuart worked closely with Huff’s
team, including Coleman, because Huff was ill.3 Stuart Dep. 16-17.
Coleman surpassed his sales quota in fiscal year 2008. Morgan Aff.
Ex. 40.
As a result, Oracle sent Coleman and his wife to “Club
Excellence” (Club) in the Canadian Rockies in late June 2008.
Compl. ¶ 15.
ASMs attend Club Excellence on an “invitation basis
and minimum criteria includes 110% attainment or greater.”
Aff. Ex. 28.
Morgan
Huff, however, gave Coleman an “Overall Rating” of
“2-Needs Improvement/new to the job” in the fiscal year 2008
review.
Id. Ex. 30.
Coleman received “2-Development needed” in
the areas of Strategic Thinking, Customer Focus, Organizational
Awareness, Account Management, Competitive Awareness and Sales
Process Acumen.
See id.
Coleman received “1-Does not meet
expectations”
the
of
in
area
Communication,
Influencing
and
Negotiating, Results Orientation, Teamwork, Objection Handling and
Opportunity Management.
made his number in FY08.
See id.
Huff commented that “[Coleman]
But it came at a high cost in terms of
resources invested and return on those hours.”
Id.
According to Coleman, the comments in the evaluation were
exaggerated and did not “reflect a full account of the facts.” Id.
3
case.
Huff died in June 2010, before he could be deposed in this
See Def.’s Mem. Supp. 3 n.3.
4
First, Coleman notes that Huff and Lisa Schagunn, a regional sales
consulting lead, approved and authorized all of Coleman’s requests
for sales consultants. See Stuart Dep. 44-45; Coleman Dep. 72-73.
Schagunn and Huff did not limit Coleman’s support hours or inform
Coleman that he was using too many sales consultant hours.
See
Stuart Dep. 46, 49. Second, Coleman used company resources because
his deals were large and complex.
See Coleman Dep. 74.
Coleman’s
seven major accounts in fiscal year 2008 were net new accounts
which tend to be more resource-intensive than install accounts.
See Morgan Aff. Ex. 30, at 000343; Stuart Dep. 44.
Third, Stuart
was directly involved in several of Coleman’s fiscal year 2008
deals, see Morgan Aff. Exs. 31-33, but never told Coleman that he
was using too many resources.
Coleman believed that the feedback
in the appraisal review was inconsistent with his performance in
fiscal year 2008 because he exceeded his quota and was invited to
Club.
In fiscal year 2009, Oracle changed Coleman’s sales patch from
primarily net new accounts to exclusively install accounts.
Coleman Dep. 27, 145-46. Coleman’s new sales patch was “completely
different” and had half as many accounts.
Stuart Dep. 106.
Coleman’s sales quota simultaneously increased by $600,000.4
Dep. 91.
Tate
Stuart claims that he changed Coleman’s sales patch
4
Install ASMs tended to carry a slightly higher quota in
fiscal year 2009 because Oracle gets more business out of its
install territories. Tate Dep. 145.
5
because Oracle was shifting to a different model for sales and
because Coleman’s skill set was better suited to an install patch.
Stuart Dep. 106-08.
Coleman requested a hold on one of his net new
accounts
but
Huff,
with
request.
Id. at 152.
Stuart’s
“full
support,”
denied
the
Oracle assigned the account to a Caucasian
employee hired in fiscal year 2008.
Id. at 153.
On September 2, 2008, Huff, at Stuart’s direction, placed
Coleman on a PIP.
See Coleman Dep. 102-03.
The PIP stated “[f]or
three of the last five years you failed to make your quota
assignment, ‘04 was 18%, ‘05 was 149%, ‘06 was 49%, ‘07 was 63% and
last year ‘08 was 118%.
is not acceptable.”
Achieving your quota only 40% of the time
Morgan Aff. Ex. 38.
The PIP further stated
that, by November 30, 2008, Coleman should (1) close 40% of his
annual quota; (2) build a pipeline5 equal to three times the
balance of his quota; and (3) average six customer appointments per
week.
See id.
The PIP also stated: “We will conduct a weekly
meeting to review your progress against the improvement targets
below.”
On
Id.
The PIP did not include termination language.
September
regarding the PIP.
11,
2008,
Coleman
Id. Ex. 36.
wrote
a
letter
to
Huff
Coleman noted that, contrary to
the statement in the PIP, he had exceeded his sales quota in fiscal
5
“Pipeline” refers to the amount of business that an ASM is
working on.
6
years 2004, 2005 and 2008.6
Id.
Coleman further noted that,
therefore, in the past five years he had attained his quota 60% of
the time, and inquired whether the corrected data changed Huff’s
opinion that Coleman’s performance was unacceptable.
Id.
Coleman
questioned whether the new sales patch was taken into consideration
when the PIP’s quota goal was set.
Id.
Coleman was concerned that
the PIP’s goals were unrealistic or impossible to attain.
Dep. 105-07.
113-14.
Huff did not respond to Coleman’s inquiries.
Coleman
Id. at
According to Coleman, Huff cancelled meetings scheduled
with Coleman to discuss the PIP.
Id. at 117-18.
No one at Oracle
met with Coleman on a weekly basis to review Coleman’s progress.7
Coleman Decl. ¶ 3.
On October 22, 2008, Huff emailed Human Resources Consultant
Colleen Madigan and stated that Huff and Stuart wished “to move
forward with formal termination at the end of the quarter if
possible.”
Morgan Aff. Ex. 54.
On October 24, 2008, Huff again
emailed Madigan and wrote “[Coleman] will not meet his criteria.
Ted [Stuart] and I would like to proceed with a plan to review
adding formal termination language, can you help us escalate this
process?”
Id. Ex. 55.
6
Oracle agrees that the PIP’s statement is inaccurate and
that Coleman instead failed to meet his quota in two of the last
five years.
7
According to Oracle, Huff and Stuart repeatedly followed up
with Coleman by email and in person regarding Coleman’s progress
toward meeting the fiscal year 2009 PIP criteria.
7
Coleman did not meet 40% of his sales quota by November 30.
See Coleman Dep. 111.
On December 5, 2008, Stuart emailed Madigan
and stated “I cannot afford to have [Coleman] remain in his current
role for another month.
I am having to play rep at one of his
large accounts because he is screwing things up on a daily basis.
We need to let him go now.
Let me know what I need to do escalate
this.”
On December 29, 2008, Huff sent Stuart
Morgan Aff. Ex. 61.
an “Involuntary Termination Recommendation” for Coleman.
terminated Coleman on January 5, 2009.
Oracle
Compl. ¶ 38.
According to Coleman, he was treated differently than other
ASMs.
First, he was the only ASM placed on a PIP in fiscal year
2009 after attaining quota in fiscal year 2008.
30.
See Stuart Dep.
Second, Coleman was the only ASM placed on a PIP in fiscal
year 2009 after being invited to Club in fiscal year 2008. Compare
Morgan Aff. Ex. 28 with id. Exs. 41 and 27.
Third, although five
ASMs in Stuart’s area, including Coleman, received an overall
rating at or below 2 on the fiscal year 2008 appraisal review, only
Coleman was placed on a PIP in fiscal year 2009.8
See id. Exs. 27,
41-46. Unlike Coleman, the other ASMs did not make quota in fiscal
year 2008.
See id. Ex. 47.
Fourth, although the majority of the
ASMs in Stuart’s group who were assigned sales quotas in 2008 did
8
Coleman alleges that in fiscal year 2008, six ASMs received
a 2 or lower on their appraisal reviews. See Pl.’s Mem. Opp’n 18
n.26.
The court, however, can find no exhibit supporting the
appraisal review score received by ASM Jim White.
8
not attain their sales quota, only Coleman, who did meet his quota,
was placed on a PIP in fiscal year 2009.
Id. Exs. 27, 47-51.
Lastly, by the end of the first quarter of fiscal year 2009,
Coleman achieved a higher percentage of his quota than most ASMs in
Stuart’s group.
On
December
Id. Ex. 52.
7,
2009,
Coleman
sued
Oracle
alleging
race
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), the Minnesota Human Rights Act (MHRA), and 42
U.S.C.
§
1981;
breach
promissory estoppel.9
for summary judgment.
of
contract;
unjust
enrichment;
and
Oracle moves to exclude expert testimony and
The court now considers the motions.
DISCUSSION
I.
Expert Testimony
Coleman seeks to introduce Dr. Robert A. Bardwell’s expert
report and supplemental report “on the Impact of Race on Employment
of Application Sales Representatives10 at Oracle, USA, Inc. June 1,
9
In his memorandum in opposition to the instant motion,
Coleman voluntarily dismissed the breach of contract, unjust
enrichment and promissory estoppel claims. See Pl.’s Mem. Opp’n 25
n.32. Coleman did not inform Oracle of his intent to dismiss these
claims prior to filing his brief, causing Oracle to needlessly
invest time and resources in seeking summary judgment as to those
claims.
Pursuant to Rule 41(a)(2), the court dismisses these
claims with prejudice and awards Oracle reasonable costs and fees
associated with defending those claims.
See Fed. R. Civ. P.
41(a)(2).
10
“Application
Sales
Representative”
9
is
synonymous with
(continued...)
2007 to May 31, 2009.”
See Morgan Aff. Exs. 4, 10.
In preparing
the report, Bardwell reviewed Coleman’s complaint, four of Oracle’s
answers
to
interrogatories
and
two
reports
Employment Opportunity Commission (EEOC).
from
the
Equal
See id. Ex. 4, at 9.
The report compares the “under utilization” of African-American and
minority ASMs employed at Oracle nationally with the total number
of African-Americans and minorities employed as “software sales
workers” (as reported by the EEOC) throughout the entire United
States.
See id. at 8.
Bardwell does not know how the EEOC figures
were compiled or obtained, and therefore cannot attest to their
completeness or accuracy. The report does not define “utilization”
and whether this term includes hiring, promotion, termination or
other employment practices.
The report concludes that “[t]he
statistical significance of racial disparity in utilization rates
at Oracle supports a finding that African-Americans and minorities
were not receiving equal opportunities at Oracle.”
Id.
The supplemental report is based on additional employment
data.
Id. Ex. 10, at 3.
In preparing the supplemental report,
Bardwell considered Oracle Employment Information (EEO-1) reports
from 2005-09, the rebuttal report of Anthony Hayter, and the
materials considered in preparing the initial report.
The
supplemental
report
compares
10
(...continued)
“Application Sales Manager.”
10
the
“under
Id. at 11.
utilization”
of
African-American
salespeople
at
Oracle
with
African-American
“software salespeople” throughout the United States and finds that
African-American salespeople at Oracle are under-utilized.
4-5.
Id. at
It also compares the involuntary termination of African-
American ASMs at Oracle with non-African-American ASMs at Oracle,
and found that the termination rate is higher for African-American
ASMs.
Id. at 5-6.
The supplemental report further finds that
“comparisons among Minnesota-only data are weak.”
Id. at 8.
Rule 702 of the Federal Rules of Evidence allows expert
testimony only when it is relevant and “(1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.”
Fed. R. Evid. 702.
The court acts as a gatekeeper to determine
“whether the witness is qualified to offer expert testimony.”
Schmidt v. City of Bella Villa, 557 F.3d 564, 570 (8th Cir. 2009)
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993)). An expert must possess the “knowledge, skill, experience,
training or education sufficient to assist the trier of fact.”
Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir.
2006) (citation and internal quotation marks omitted).
This
standard is satisfied when the expert’s testimony “advances the
trier of fact’s understanding to any degree.”
Id.
In short, the
court must ensure that expert testimony “is not only relevant, but
11
reliable.”
589).
Schmidt, 557 F.3d at 570 (citing Daubert, 509 U .S. at
The proponent of the expert testimony bears the burden of
proving its admissibility by a preponderance of the evidence.
See
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).
A.
As
Timeliness
an
initial
matter,
Bardwell’s
supplemental
report
is
untimely. The district court has broad discretion to establish and
enforce
deadlines
for
compliance
with
discovery
and
pretrial
orders. See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758-59
(8th Cir. 2006). Here, the pretrial scheduling order dictates that
Coleman’s expert report must be prepared and disclosed on or before
October 29, 2010.
is
dated
December
See ECF No. 9.
17,
2010.
Bardwell’s supplemental report
See Morgan
Aff.
Ex.
10.
The
scheduling order does not contemplate supplemental or rebuttal
reports.
Therefore, exclusion of the supplemental report is
warranted on this basis alone.
B.
Relevance
Rule 702 requires that the evidence or testimony “assist the
trier of fact to understand the evidence or to determine a fact in
issue.”
Fed. R. Evid. 702.
relevance.
“This condition goes primarily to
Expert testimony which does not relate to any issue in
the case is not relevant and, ergo, non-helpful.”
Daubert, 509
U.S. at 591 (citation and internal quotation marks omitted).
Background evidence of an employer’s discriminatory policies or
12
practices “may be critical for the jury’s assessment of whether a
given employer was more likely than not to have acted from an
unlawful motive.”
Estes v. Dick Smith Ford, Inc., 856 F.2d 1097,
1103 (8th Cir. 1988), overruled in part on other grounds, Price
Waterhouse
v.
Hopkins,
490
U.S.
228
(1989).
However,
“[c]ompanywide statistics are usually not helpful in establishing
pretext in an employment discrimination case, because those who
make employment decisions vary across divisions.”
Sallis v. Univ.
of Minn., 408 F.3d 470, 478 (8th Cir. 2005) (quoting Carman v.
McDonnell Douglas Corp., 114 F.3d 790, 792 (8th Cir. 1997)).
Oracle argues that Coleman has not met his burden to show that
Bardwell’s reports are relevant to this case.
The court agrees.
Unlike cases involving class actions, disparate-impact claims and
pattern-and-practice claims, Coleman filed individual, disparatetreatment claims against Oracle.
Coleman must show that his
supervisors at Oracle treated him differently because of his race.
The generalized statistics in Bardwell’s reports are not relevant
to
Coleman’s
claim
and
are
so
attenuated
as
to
preclude
a
reasonable inference of individual disparate treatment of Coleman.
Moreover, Coleman fails to show how Bardwell’s reports would
“assist
the
trier
of
fact
determine a fact in issue.”
to
understand
the
evidence
or
to
Fed. R. Evid. 702. Bardwell’s reports
are more likely to confuse the jury, as Coleman does not claim that
13
he was “under utilized” at Oracle.
As a result, exclusion of the
reports is warranted.11
C.
Even
reliable.
Reliability
if
Bardwell’s
reports
were
relevant,
they
are
not
The court considers several nonexclusive factors when
determining the reliability of an expert’s opinion, including:
(1) whether the theory or technique can be
(and has been) tested; (2) whether the theory
or technique has been subjected to peer review
and publication; (3) the known or potential
rate of error; (4) whether the theory has been
generally accepted; ... (5) whether the
expertise was developed for litigation or
naturally flowed from the expert’s research;
(6) whether the proposed expert ruled out
other
alternative
explanations;
and
(7)
whether the proposed expert sufficiently
connected the proposed testimony with the
facts of the case.
Lauzon, 270 F.3d at 686–87 (citations and quotations omitted).
Consideration of these factors weighs in favor of exclusion.
First, there is no evidence that Bardwell ruled out alternative
explanations or considered relevant, race-neutral variables in
reaching his
speculative.
conclusions.
“Expert
This
testimony
failure
that
is
renders
his
speculative
report
is
not
competent proof and contributes nothing to a legally sufficient
evidentiary basis.”
Concord Boat Corp. v. Brunswick Corp., 207
11
Even if the reports were relevant, the court would exclude
them under Federal Rule of Evidence 403 because their “probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” Fed.
R. Evid. 403.
14
F.3d 1039, 1057 (8th Cir. 2000) (quoting Weisgram v. Marley Co.,
528
U.S.
440,
442
(2000)
(internal
quotation
marks
omitted)
(excluding expert opinion that “did not incorporate all aspects of
the economic reality of the [relevant] market.”).
Bardwell’s
reports fail to consider relevant variables other than race, such
as skill, education and experience.
In fact, Bardwell admits that
the data could support other findings, including that AfricanAmericans and minorities applied to Oracle at lower rates.
Bardwell Dep. 53-54.
See
In this case, failure to consider other
variables undermines the reliability of the reports.
See Franklin
v. Local 2 of the Sheet Metal Workers Int’l Ass’n, 565 F.3d 508,
514, 517 (8th Cir. 2009).
Moreover, Bardwell relied on assumptions to make unsupported
conclusions.
For example, Bardwell calculated the number of ASMs
employed at Oracle in fiscal years 2006 and 2007 without accounting
for reduction in force or transfers.
Bardwell Dep. 76, 78.
Further, Coleman does not show that Bardwell’s sample size of eight
Minnesota ASMs is large enough to be statistically significant.
See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 990 (8th Cir.
2011) (collecting cases).
In addition, Bardwell’s report fails to connect the proposed
testimony sufficiently with the facts of this case.
It is not
clear how Coleman, who was hired and promoted at Oracle, was “under
utilized” or how Bardwell’s general under-utilization analysis
15
relates to the facts of Coleman’s claims.
Finally, Bardwell’s
report was developed for litigation and does not naturally flow
from his research.
“An expert’s finding that flows from research
independent of litigation is less likely to be biased and the
expert is limited to the degree to which he can tailor his
testimony to serve a party’s interests.”
(citation
and
internal
quotation
Lauzon, 270 F.3d at 692
marks
omitted).
Therefore,
Bardwell’s reports are not sufficiently reliable for the purposes
of Rule 702 and exclusion is also warranted on this basis.
II.
Summary Judgment
A.
Standard of Review
Summary
judgment
is
appropriate
“if
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
16
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
Moreover, if a plaintiff cannot support
each essential element of his claim, the court must grant summary
judgment because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial.
322-23.
Id. at
“There is no ‘discrimination case exception’ to the
application of summary judgment, which is a useful pretrial tool to
determine whether any case, including one alleging discrimination,
merits a trial.” Torgerson v. City of Rochester, No. 09–1131, 2011
WL 2135636, at *8 (8th Cir. June 1, 2011) (en banc) (quoting
Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)).
B.
An
Race Discrimination
employer
may
not
discharge
or
against an employee because of his race.
otherwise
discriminate
See 42 U.S.C. § 2000e-
2(m) (Title VII); Id. § 1981; Minn. Stat. § 363A.08 subdiv 2.
(MHRA).12
In cases involving indirect evidence of discrimination,
such as here, the court applies the McDonnell Douglas burdenshifting framework to discrimination claims.
McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 800-05 (1973).
A plaintiff must
12
The court applies the same analysis to claims under Title
VII, § 1981 and the MHRA when, as here, the claims depend on
identical facts and theories. See Torgerson v. City of Rochester,
605 F.3d 584, 594 (8th Cir. 2010) (Title VII and MHRA); Takele v.
Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009) (Title VII and
§ 1981).
17
first
establish
a
prima
facie
case
of
discrimination.
See Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688,
692
(8th
Cir.
2009).
The
defendant
then
must
articulate
legitimate, nondiscriminatory reason for its actions.
692-93.
a
See id. at
The burden then shifts back to the plaintiff to produce
evidence demonstrating that the defendant’s reason is pretext for
unlawful discrimination.
1.
See id. at 693.
Prima Facie Case
To establish a prima facie case of race discrimination,
Coleman “must show that he (1) is a member of a protected class,
(2) was qualified to perform the job, (3) suffered an adverse
employment action, and (4) has facts that give rise to an inference
of discrimination.”
Takele, 576 F.3d at 838 (citation omitted);
see also Elam v. Regions Fin. Corp., 601 F.3d 873, 879 (8th Cir.
2010).
The first and third elements are not in dispute.
Oracle first argues that Coleman cannot show that he was
meeting
Oracle’s
legitimate
job
expectations.
however,
“merely
requir[es]
[Coleman]
to
show
This
that
element,
[he]
was
qualified” to perform the job, not that he was performing the job
satisfactorily.
Arnold v. Nursing & Rehab. Ctr. at Good Shepherd,
LLC, 471 F.3d 843, 846 (8th Cir. 2006).
for
approximately
10
years,
was
18
an
Coleman worked at Oracle
ASM
from
2003
until
his
termination, and demonstrated the basic skills needed to sell
software.
Coleman met his burden to show that he was qualified for
the ASM position, and, therefore, this element is satisfied.
Oracle next argues that Coleman fails to produce facts that
give rise to an inference of discrimination.
Coleman met this
burden “by producing facts that similarly situated employees, not
in the protected class, were treated differently.”
Wheeler v.
Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004); see also Takele,
576 F.3d at 839.
The court applies the low-threshold test to
determine whether employees are similarly situated at the prima
facie stage.13 Coleman must show that he and other ASMs were
“involved in or accused of the same or similar conduct and [were]
disciplined in different ways.” Wheeler, 360 F.3d at 857 (citation
omitted).
Coleman satisfies this burden.
No other ASM who
exceeded his quota in fiscal year 2008 was placed on a PIP and
terminated in fiscal year 2009.
Therefore, Coleman has met his
prima facie burden.
2.
Oracle
Legitimate, Nondiscriminatory Reason
offers
terminating Coleman.
legitimate,
nondiscriminatory
reasons
for
Coleman was not meeting the expectations of
13
The court recognizes that the standard at the prima facie
stage is unsettled in the Eighth Circuit. See Wimbley v. Cashion,
588 F.3d 959, 962 (8th Cir. 2009) (noting that one line of cases
applies a “low threshold” standard while another applies a
“rigorous” standard). In the present case, the outcome is the same
under either standard.
19
his position in the following areas: (1) “Lack of Performance–
[Coleman] has attained his license quota in two of the past five
fiscal years only...”; (2) “Insufficient Pipeline Generation – In
FY 09, [Coleman] has fallen significantly short on his pipeline
target .... [He] has generated unqualified opportunities at his
current customers only ....
He does not have any new customers in
his pipeline”; (3) “Inability to Strategically Plan a Sales Cycle
–
The
only
(DataCard)
real
was
sales
cycle
unqualified
[Coleman]
and
has
premature”;
engaged
(4)
in
FY09
“Inability
to
Generate Executive Level Discussion – [Coleman] could not get
appointments with executives because he does not consistently
create and
deliver
a
compelling
message”;
and
(5)
objectives set forth in the September 2, 2008, PIP.
Ex. 64.
the
three
Morgan Aff.
Further, Coleman failed to meet quota in fiscal years 2006
and 2007, used excessive sales consulting hours in fiscal year
2008, and failed to satisfy the expectations expressed in his
annual performance reviews.
to
show
a
legitimate,
Therefore, Oracle has met its burden
nondiscriminatory
reason
for
Coleman’s
termination.
3.
Coleman
Pretext
first
argues
that
Oracle’s
factually
inaccurate
explanation for his termination supports an inference of pretext.
See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 988 (8th Cir.
2011) (“A
plaintiff
may
show
pretext
20
with
evidence
that the
employer’s explanation is unworthy of credence because it has no
basis in fact.”).
Coleman argues that each of Oracle’s proffered
reasons for termination has no basis in fact.
Coleman (1) met his
sales quota in three of the past five years, see Coleman Dep. 10304; (2) generated a qualified opportunity with a new customer, see
Stuart Dep. 215-17; and (3) generated executive-level discussion,
see id. at 214-15.
Coleman also argues that he was treated differently than
similarly-situated employees.
At the pretext stage, Coleman must
satisfy the rigorous standard for determining whether similarly
situated employees were treated differently.
See Rodgers v. U.S.
Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005); Torgerson, 2011 WL
2135636, at
*15.
“To be
similarly
situated,
the
comparable
employees must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances.”
Tolen v.
Ashcroft, 377 F.3d 879, 882 (8th Cir. 2004) (citation and internal
quotation marks omitted).
In short, the other employees must “be
similarly situated in all relevant aspects.”
Fields v. Shelter
Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008).
Coleman argues that he is similarly situated to all ASMs
working under Stuart.
Oracle argues that Coleman is similarly
situated only to the seven other ASMs directly reporting to Huff in
fiscal years 2008 and 2009.
The court disagrees.
21
The record shows
that Stuart was a primary decision-maker in Coleman’s employment
from
the
second
termination.
half
Stuart
of
was
fiscal
year
involved
2007
in
until
Coleman’s
conducting
Coleman’s
performance appraisals, assigning his sales patch, setting his
sales quota, placing him on a PIP and recommending his termination.
Oracle’s argument that Huff was Coleman’s only relevant supervisor
is further undermined because Stuart “worked a lot more closely
with [Coleman] as a result of [Huff’s] illness.”
17.
Stuart Dep. 16-
Moreover, Stuart provided feedback to lower-performing ASMs
under all three regional managers.
See id. at 17.
Because
performance appraisal is “an important step” which Oracle “take[s]
seriously,”
Stuart
“collaborate[s]
broadly
managers in appraising low-rated ASMs.
with”
his
Id. at 18.
regional
The record
shows that Stuart had supervisory responsibility over all ASMs in
his area.
The court determines, therefore, that Stuart is a
relevant supervisor for all ASMs working under him.
To
be
similarly
situated,
however,
Coleman
must
also
demonstrate that other ASMs under Stuart engaged in the same
conduct without any mitigating or distinguishing circumstances.
See Tolen, 377 F.3d at 882.
Coleman argues that he was treated
differently than Caucasian ASMs in several ways, including that he
was the only ASM placed on a PIP in fiscal year 2009 after
22
attaining quota and going to Club in fiscal year 2008, and he was
the only ASM invited to Club in fiscal year 2008 to receive a low
fiscal year 2008 review.
Oracle responds that Coleman failed to identify other ASMs who
engaged
in
the
same
conduct
without
any
mitigating
or
distinguishing circumstances because only Coleman missed quota in
fiscal year 2006, was placed on a PEP in fiscal year 2006 and
failed to satisfy its requirements, received a “2" on his fiscal
year 2006 performance appraisal, missed quota in fiscal year 2007,
used excessive resources in reaching quota in fiscal year 2008, and
received a “2" on his fiscal year 2008 performance appraisal.
Coleman admits that he performed poorly in fiscal years 2006
and 2007, and that Oracle could have justifiably terminated him
during
those
years.
See
Coleman
Dep.
108.
His
claim
for
discrimination, however, arises from disparate treatment associated
with Stuart’s heightened supervisory role, which began in the
second half of fiscal year 2007.
Viewed cumulatively and in the
light most favorable to Coleman, the facts are sufficient to
generate a triable question regarding pretext and discriminatory
animus.
See Willnerd v. First Nat’l Neb., Inc., 558 F.3d 770, 779
(8th Cir. 2009).
evidence
When a plaintiff meets his burden to produce
supporting
a
possible
inference
that
the
employer’s
proffered reasons are pretext for unlawful discrimination, the
court may not grant summary judgment, even when it appears unlikely
23
that the plaintiff will meet his ultimate burden to show that his
termination was the result of discriminatory animus.
See Hossaini
v. W. Mo. Med. Ctr., 97 F.3d 1085, 1088 (8th Cir. 1996) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Therefore,
summary
judgment
is
not
warranted
on
Coleman’s
discrimination claims.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
The motion to exclude the expert testimony of Robert A.
Bardwell [ECF No. 61] is granted; and
2.
The motion for summary judgment [ECF No. 58] is denied as
to plaintiff’s race discrimination claims (Counts I, II and III);
and
3.
as
to
The motion for summary judgment [ECF No. 58] is granted
plaintiff’s
breach
of
contract,
quantum
meruit/unjust
enrichment, and promissory estoppel claims (Counts IV, V and VI).
These claims are dismissed with prejudice and defendant is awarded
reasonable costs and fees associated with defending these claims.
Defendant shall submit proper documentation of its reasonable costs
and fees incurred to defend these claims.
Dated:
July 14, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
24
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