Cramer v. NEC Corporation of America et al

Filing 55

Memorandum Opinion and Order granting 33 Motion for Summary Judgment, denying as moot 42 Motion to Strike. (Ordered by Judge Sam A Lindsay on 2/3/2012) (aaa)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ALBERT CRAMER,
Plaintiff,
v.
NEC CORPORATION OF AMERICA
Defendant.

§
§
§
§
§
§
§
§
§

Civil Action No. 3:10-CV-1428-L

MEMORANDUM OPINION AND ORDER
Before the court are Defendant NEC Corporation of America’s Motion for Summary
Judgment, filed June 17, 2011, and Defendant NEC Corporation of America’s Motion to Strike
Evidence Cited in Plaintiff’s Brief in Support of His Response to Motion for Summary
Judgment, filed July 29, 2011. After carefully considering the motions, responses, replies,
appendices, and applicable law, the court grants Defendant NEC Corporation of America’s
Motion for Summary Judgment and denies as moot Defendant NEC Corporation of America’s
Motion to Strike Evidence Cited in Plaintiff’s Brief in Support of His Response to Motion for
Summary Judgment.
I.

Factual and Procedural Background
On July 20, 2010, Albert Cramer (“Cramer” or “Plaintiff”) filed his Original Complaint

(the “Complaint”) against NEC Corporation of America (“NEC” or “Defendant”) and RedRiver
Systems, L.L.C. (“RedRiver”). Cramer contends that NEC and RedRiver discriminated against
him in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et.
seq.

On June 13, 2011, this court issued a Memorandum Opinion and Order and held that no

genuine disputes of material fact existed as to Plaintiff’s claim under the ADEA against

Memorandum Opinion and Order – Page 1

RedRiver and dismissed with prejudice Plaintiff’s claim for violation of the ADEA with respect
to RedRiver. NEC is the only remaining defendant in this action.
The court sets forth those facts for which there is no dispute. Cramer began working with
7-Eleven, Inc. (“7-Eleven”) through a contract position with another company in October 1998.
Cramer was hired for the position of 7-Eleven’s War Room manager as an independent
contractor in October 1999. Cramer continued as War Room manager until January 2010. The
War Room provided organizational and technical support for subcontractors (also referred to as
“technicians”) installing or removing hardware and software at 7-Eleven’s stores and was
responsible for documenting these activities.

As War Room manager, Cramer’s main

responsibility was to lead teams and oversee 7-Eleven’s projects to ensure that they were
completed in a timely manner. Kevin Zvolanek (“Zvolanek”) was one of the technicians that the
War Room called on to help the War Room with issues.
NEC, among other things, provides technical, professional services to clients. In 2009,
NEC began negotiating with 7-Eleven for NEC to take over the functions performed by 7Eleven’s War Room and other functions that were performed by other 7-Eleven subcontractors.
Christopher Merryman (“Merryman”), a Project Manager for NEC, participated in the
negotiations of the Unites States and Canadian New Stores/Closed Stores contract (“Contract”)
with 7-Eleven.

Richard Shaver (“Shaver”) is 7-Eleven’s Information Technology (“IT”)

Manager and participated in the negotiations with NEC concerning the Contract. The Contract
encompassed the War Room’s functions and other functions. Under the Contract, NEC would be
responsible for staging hardware, installing hardware, procuring hardware, and supporting these
services from a technical and operational perspective. The Contract also encompassed project
managing and reporting to 7-Eleven with respect to these services. The staging and installation

Memorandum Opinion and Order – Page 2

of hardware typically would occur at 7-Eleven stores across the United States and in Canada
through the assistance of subcontractors at these locations.
During the negotiations between NEC and 7-Eleven, NEC determined that, going
forward, the new department performing the War Room’s prior functions would be more selfsufficient to improve efficiency and not use as many vendors to resolve issues. NEC called this
new department the Deployment Support Team (“DST’).
Although the Contract did not go into effect until January 1, 2010, and was not signed
until December 2009, NEC began preparing to perform the Contract by selecting individuals to
staff the DST. NEC began looking for a DST manager. Merryman considered Cramer and
Zvolanek for the DST manager position. Merryman did not conduct formal interviews with
either Cramer or Zvolanek for the DST manager position.

Merryman relied on his prior

experience and interactions with both Cramer and Zvolanek and knowledge of Cramer’s and
Zvolanek’s abilities through these interactions to assess both of these individuals for the position.
During part of the time when Cramer was 7-Eleven’s War Room manager, Merryman
was employed by Hewlett Packard (“HP”), which was a 7-Eleven vendor. For approximately
two to three years, through his employment with HP, Merryman was present in the War Room at
least once or twice a week. Merryman had interacted with Zvolanek when Zvolanek was
employed by Affiliated Computer Services, Inc. (“ACS”) and performed services for 7-Eleven,
and when Zvolanek contracted with NEC to provide services to another NEC client. When
Merryman worked for HP and was assigned to a contract providing services to 7-Eleven,
Merryman developed a working relationship with Zvolanek because Zvolanek worked at ACS’s
production support help desk, which supported 7-Eleven.

Memorandum Opinion and Order – Page 3

Around October or November 2009, Merryman made the decision as to whom to select
as DST Manager. Merryman selected Zvolanek to fill the DST manager position. NEC states it
did not select Cramer for the position “because it appeared to [Merryman] that Cramer did not
have the technical or managerial abilities required to perform the position and that Cramer had
not always satisfactorily performed services for 7-Eleven in the past.” Def.’s App. at 100.
Merryman verbally advised Matthew Worley (“Worley”), Director of Client Services for NEC
and Merryman’s direct supervisor, that Merryman believed that Zvolanek should be selected for
the DST manager position. Worley signed off on Merryman’s recommendation, and Zvolanek
was offered the DST manager position, which Zvolanek accepted. At the time of the decision to
award Zvolanek the DST manager position, Cramer was 64 years old, and Zvolanek was 27
years old.
II.

Legal Standard for Motion for Summary Judgment
Summary judgment shall be granted when the record shows that there is no genuine

dispute as to any material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.
Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material
fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling
on a motion for summary judgment, the court is required to view all facts and inferences in the
light most favorable to the nonmoving party and resolve all disputed facts in favor of the
nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a

Memorandum Opinion and Order – Page 4

motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support
the nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Mere conclusory allegations are not
competent summary judgment evidence, and thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not competent summary judgment
evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994).
The party opposing summary judgment is required to identify specific evidence in the record and
to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at
458. Rule 56 does not impose a duty on the court to “sift through the record in search of
evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S.
832 (1992). “Only disputes over facts that might affect the outcome of the suit under the
governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at
248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court
in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to its case and on which it will bear
the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

Memorandum Opinion and Order – Page 5

III.

Analysis
Defendant moves for summary judgment on Plaintiff’s only claim—failure to hire under

the ADEA. Plaintiff contends he was not hired for the DST manager position because of his age.
Plaintiff asserts that NEC’s alleged reasons for not hiring him are pretextual and that he was
clearly better qualified than the selected DST manager. Defendant asserts it has legitimate,
nondiscriminatory reasons for not selecting Plaintiff for the DST manager position and that
Plaintiff is unable to show that “but-for” his age, he would have been selected for the position.
A. Legal Standard Under the ADEA
The ADEA makes it unlawful for an employer “to fail or refuse to hire or 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). “A plaintiff can demonstrate age discrimination in two ways, either through: direct
evidence or by an indirect or inferential [circumstantial] method of proof.” Berquist v.
Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citing Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 309 (5th Cir. 2004)). To establish a prima facie case of age discrimination for
failure to hire based on circumstantial evidence, a plaintiff must show that: (1) he was over the
age of forty at the time he was not selected; (2) he was qualified for the position; (3) he was not
selected; and (4) the job remained open or was filled by someone younger. See Lindsey v. Prive
Corp., 987 F.2d 324, 326-327 (5th Cir. 1993); Haas v. Advo Sys., Inc., 168 F.3d 732, 733 (5th
Cir. 1999) (citation omitted) (setting forth a prima facie case under the ADEA for failure to hire).
Once a plaintiff establishes a prima facie case, the defendant must set forth a legitimate,
nondiscriminatory reason for the employment action it took against the plaintiff. Machinchick v.
PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). This is a burden of production, not

Memorandum Opinion and Order – Page 6

persuasion, on the defendant's part, and it “can involve no credibility assessment.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). If the defendant meets this burden, the plaintiff
must establish that the employment action occurred because of intentional age discrimination.
Machinchick, 398 F.3d at 350. This means that a plaintiff bringing a claim under the ADEA
must prove “that age was the ‘but-for’ cause of the challenged employer decision.” Moss v. BMC
Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Gross v. FBL Fin. Servs., Inc., 129 S.
Ct. 2343, 2352 (2009)).
B. Legitimate, Nondiscriminatory Reasons
Although the parties dispute whether Cramer was qualified for the DST manager
position, the court will assume without deciding that Cramer has established a prima facie case
of age discrimination under the ADEA. The burden then shifts to NEC to set forth a legitimate,
nondiscriminatory reason for the employment action challenged by Cramer. NEC presents
evidence that during the negotiations between NEC and 7-Eleven regarding the Contract, it was
discussed that the DST would be more self-sufficient than the War Room had been and resolve
most issues internally without having to frequently use vendors.

Def.’s App. at 50, 99. NEC

states that the DST manager needed to be able to “provide technical support to the subcontractors
at the 7-Eleven stores staging and installing hardware and other subcontractors and 7-Eleven
employees in need of technical assistance and be able to resolve any technical issues, only
resorting to assistance from vendors on rare occasions.” Def.’s App. at 100. NEC asserts it did
not select Cramer for the DST manager position “because it appeared . . . that Cramer did not
have the technical or managerial abilities required to perform the position and that Cramer had
not always satisfactorily performed services for 7-Eleven in the past.” Def.’s App. at 100.
Defendant presents evidence that, at times, Cramer would argue with 7-Eleven employees; refuse

Memorandum Opinion and Order – Page 7

to listen to suggestions from vendors about how to resolve technical issues; and attempt to solve
technical issues and fail to solve those issues. Def.’s App. at 98. The court has carefully
reviewed

the

evidence

and

determines

that

Defendant

has

articulated

legitimate,

nondiscriminatory reasons for not hiring Cramer for the position of DST manager. Defendant’s
burden is not a heavy one, and it has met it in this case.
C. Intentional Age Discrimination
Because the court has found that Defendant articulated legitimate, nondiscriminatory
reasons for not selecting Cramer for the position of DST manager, it next considers whether
Cramer has established a genuine dispute of material fact as to whether Defendant intentionally
discriminated against him because of his age. In determining whether a discrimination plaintiff’s
rebuttal precludes summary judgment, the question is whether the plaintiff has shown that there
is a genuine dispute of material fact as to whether the reasons were pretextual. Moss, 610 F.3d at
922. “A plaintiff may show pretext ‘either through evidence of disparate treatment or by
showing that the employer’s proffered explanation is false or unworthy of credence.’” Id.
(quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

“A showing that the

unsuccessful employee was clearly better qualified (as opposed to merely better or as qualified)
than the employee[] who [was] selected will be sufficient to prove that the employer’s proffered
reasons are pretextual.” Id. (citation omitted).
Defendant contends that Plaintiff cannot show that age was the “but-for” cause of its
decision not to select him as the DST manager.

Plaintiff responds that he has submitted

compelling summary judgment evidence that creates a genuine dispute of material fact as to
whether he was clearly better qualified than Zvolanek and whether Defendant’s proffered
reasons for not hiring him are unworthy of credence.

Memorandum Opinion and Order – Page 8

1. Clearly Better Qualified
To show that he was “clearly better qualified” than Zvolanek, Cramer must present
evidence from which a jury could conclude that “no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the plaintiff for the job in
question.” Moss, 610 F.3d at 923 (citation omitted). “Unless the qualifications are so widely
disparate that no reasonable employer would have made the same decision, any differences in
qualifications are generally not probative evidence of discrimination.” Id. (citation omitted).
Thus, “the bar is set high for this kind of evidence.” Id.
Cramer contends that he was clearly better qualified than Zvolanek for the DST manager
position based on his “overall management experience.” Cramer asserts he had been a manager
in some capacity for over thirty years and that Zvolanek had no management experience. NEC
responds that it was focused on finding a DST manager who could provide technical support to
subcontractors, only resorting to vendors on rare occasions, and that the evidence demonstrates
that Plaintiff’s technical abilities did not make him clearly better qualified than Zvolanek.
NEC presents evidence that it did not select Cramer for the position because it appeared
that “Cramer did not have the technical or managerial abilities required to perform the position
and that Cramer had not always satisfactorily performed services for 7-Eleven in the past.”
Def.’s App. at 100 (emphasis added). NEC also provides evidence that the DST manager needed
to be able to, among other things, “provide technical support to the subcontractors at the 7Eleven stores staging and installing hardware and other subcontractors and 7-Eleven employees
in need of technical assistance and be able to resolve any issues, only resorting to assistance
from vendors on rare occasions.” Id. The court determines, as further explained herein, that
technical and managerial abilities were requirements for the DST manager position.

Memorandum Opinion and Order – Page 9

Cramer contends that “Zvolanek’s zero years as a manager and zero years as the War
Room manager versus [his] thirty years as a manager and ten years as the War Room manager
makes this comparison a ‘no contest.’” Resp. at 22. The court notes that Zvolanek did have
management experience, albeit not as extensive as Cramer’s management experience. As
indicated by his resume, Zvolanek managed ten to twelve technicians for approximately a year
while working for Affiliated Computer Services, Inc. Pl.’s App. at 46. “An attempt [by a
discrimination plaintiff] to equate years served with superior qualifications is unpersuasive.”
Moss, 610 F.3d at 923 (citation omitted). “Obviously, work experience is one component of
defining who is more qualified, but greater experience alone will not suffice to raise a fact
question as to whether one person is clearly more qualified than another.” Id. (citation omitted).
The evidence demonstrates that Cramer undoubtedly has more management experience.
Cramer’s lengthier tenure of experience overall, however, does not necessarily demonstrate
superior qualifications.
Moreover, managerial ability is only part of the equation; Cramer has not demonstrated
that he was clearly better qualified to perform the technical requirements of the DST manager
position. Cramer notes that to the extent NEC argues that it desired someone more “technical”
for the position, the job description for the position contains no reference to computer technical


Plaintiff asserts that the job description for the DST manager position does not require technical computer
capabilities. Defendant objects to the job description proffered by Plaintiff and alleged to be the job description for
the position at issue (Exhibit 33, Pl.’s App. at 28) because it has not been authenticated as required by Federal Rule
of Evidence 901. Def.’s Mot. to Strike at 5. Specifically, Defendant asserts that Plaintiff has not presented evidence
that the job description (Exhibit 33) is the DST manager job description. Plaintiff presents evidence that Merryman
testified that he could not recall whether Exhibit 33 is the job description for the DST manager position. Pl.’s App.
at 25-27. Merryman testified that “it could be” the DST manager job description. Plaintiff asserts that the court can
assume that Exhibit 33 is the job description for the DST manager position because it was produced during
discovery and Plaintiff only requested that NEC produce a job description for the DST manager position. Although
not provided in its appendix, Defendant represents to the court that Plaintiff’s Request for Production No. 37
requested “any and all documents which concern or relate to the positions listed in Interrogatory Nos. 1 and 4 of
Plaintiff’s First Set of Interrogatories to NEC Corporation of America.” Def.’s Reply in Supp. of Mot. to Strike at 7.
Defendant also represents that Plaintiff’s Interrogatory No. 4 requested information concerning “any and all
positions on the Deployment Support Team for 7-Eleven.” Id. Based on these representations, the court determines
Memorandum Opinion and Order – Page 10

abilities.

The court, however, finds that the record supports the conclusion that technical

abilities, such that the DST would be self-sufficient, were essential requirements of the DST
manager position. Shaver testified that the DST was to be self-sufficient and able to function
without having to resort to outside vendors to resolve issues. Def.’s App. at 50. Shaver further
testified that a self-sufficient DST was the “mutually-agreed-upon goal” and that the parties to
the Contract agreed it would be an “improvement if [they] didn’t have to impact the processes by
escalation to other entities.” Def.’s App. at 51. Merryman stated in his affidavit that NEC
determined that the DST would need to be managed and staffed with individuals with high
technical capabilities so that the DST could solve most issues internally and not use vendors as
frequently as the War Room had. Def.’s App. at 99. Shaver also testified that, in comparison to
the operation of the War Room, the DST makes fewer calls to outside vendors, and the DST has
“a much further in-depth knowledge of the system to be able to deal with [] problems.” Def.’s
App. at 48. Shaver further testified that the functions performed by the DST are at a different
level (“much more self-sufficient”) than those performed by the prior War Room, managed by
Cramer. Def.’s App. at 53. Accordingly, the record also supports the conclusion that the
technical requirements for operating the DST are to some extent different than those for
operating the War Room because the DST is more self-sufficient. See id. Thus, Cramer’s
lengthier tenure of experience as War Room manager does not necessarily demonstrate superior
qualifications.
“[T]he fact that a candidate’s experience is recent and specialized in relation to the job at
issue is a consideration relevant to qualification, in addition to simple length of experience.”
that Plaintiff requested documents concerning all positions on the DST, not just the DST manager position. As the
testimony of Merryman provided in Plaintiff’s appendix provides insufficient information to support a finding that
Exhibit 33 is the DST manager job description, the court cannot conclude that it is the job description for the DST
manager position.

Memorandum Opinion and Order – Page 11

Moss, 610 F.3d at 923. Although NEC failed to cite to this evidence in its brief, the court’s own
review of the summary judgment evidence shows that Zvolanek had more extensive technical
abilities than Cramer. Shaver, as IT Manager for 7-Eleven for approximately 15 years, worked
with Cramer on a day-to-day basis while Cramer held the position of War Room manager.
Def.’s App. at 44-45. Shaver served as Cramer’s manager at 7-Eleven. Def.’s App. at 65.
Shaver testified that there is a production support skillset and product support skillset. Def.’s
App. at 45. The former requires in-depth knowledge of the making of the product and the ability
to troubleshoot at all levels. Id. The latter requires an awareness of the product and what it
should do and the ability to develop some troubleshooting processes. Id. Shaver testified that
Cramer did not have the production support skillset. Def.’s App. at 45-46. Shaver testified that
Zvolanek has production support technical level expertise. Def.’s App. at 53. Further, Shaver
testified that Zvolanek, based on his observations, appeared to have a higher technical skillset
than Cramer. Def.’s App. at 55.

Shaver also testified that if an issue arose that had been

encountered before and was part of the decision tree, Cramer could troubleshoot it to resolution;
however, if a new issue did not follow the decision tree or the documents accessible within the
War Room, Cramer did not have the skillset to troubleshoot it to resolution and would have to
seek out production support. Def.’s App. at 47. Merryman stated he witnessed Plaintiff “attempt
to solve technical issues, fail to solve the issues—including failing to troubleshoot hardware and
software technical issues to resolution—and then call vendors for help.” Def.’s App. at 98.
Zvolanek was one of the individuals that the War Room called upon to assist with technical
issues when Cramer was the War Room manager. Def.’s App. at 19. Zvolanek spent at least
four years obtaining experience with 7-Eleven’s software and hardware. Def.’s App. at 70, Pl.’s
App. at 46.

Memorandum Opinion and Order – Page 12

As previously determined by the court, technical abilities comprised an essential
requirement of the DST manager position.

Cramer provides evidence that he engaged in

computer technical activities as the War Room manager, but he has not demonstrated that his
technical abilities make him clearly better qualified for the DST manager position than Zvolanek.
Cramer has not met the high bar of showing that no reasonable person, in the exercise of
impartial judgment, could have chosen Zvolanek over Cramer for the job in question.
2. False or Unworthy of Credence
The court next considers whether Plaintiff has raised a genuine dispute of material fact
that NEC’s proffered reasons for not selected him were false or unworthy of credence. NEC has
asserted three reasons for not selecting Cramer for the DST manager position: (1) lack of
technical abilities; (2) lack of managerial abilities; and (3) failure to always satisfactorily
perform services for 7-Eleven in the past. See Def.’s App. at 100. Cramer “must put forward
evidence rebutting each of the nondiscriminatory reasons [NEC] articulates.”

Vaughn v.

Woodforest Bank, __ F.3d__, 2011 WL 6382033, at *4 (5th Cir. Dec. 21, 2011) (quoting Wallace
v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)). NEC is allowed to be incorrect in
its assessment of the facts it relies on to justify not selecting Cramer, but it is not allowed to have
any discriminatory animus against him in making its decision. Id. For the reasons that follow,
Plaintiff fails to put forth evidence sufficient to rebut each of the reasons articulated by NEC.
a. Lack of Technical Abilities Reason
The court first examines the “lack of technical abilities” reason. Cramer first states that
the failure to list any technical capability requirements in the job description for the DST
manager position is fatal to NEC’s alleged reasons for not selecting Cramer for the position. As
previously determined by the court, Cramer has not established that the job description to which

Memorandum Opinion and Order – Page 13

he refers is the job description for the DST manager position. Thus, the court cannot draw any
conclusions from the alleged exclusion of technical capability requirements in the job description
document proffered by Plaintiff. Moreover, the court has also determined that the overwhelming
evidence in the record supports the conclusion that technical abilities were essential requirements
of the DST manager position. Accordingly, the court finds that the proffered job description and
the alleged exclusion of technical capability requirements therein do not provide evidence of
pretext.
Cramer next draws the court’s attention to the language used by NEC in expressing its
reasons for not selecting Cramer. Plaintiff contends that Merryman’s assertion that it “appeared
. . . that Cramer did not have the technical or managerial abilities required to perform the
position” shows that NEC and Merryman did not know for sure at the time the decision was
made whether Cramer had the technical abilities needed for the position. Defendant responds
that predicating its decision on its beliefs regarding Cramer’s competence does demonstrate that
discrimination occurred. The court agrees. The proper inquiry is “whether [NEC’s] perception
of [Cramer’s] performance, accurate or not, was the real reason” for its decision. Laxton, 333
F.3d at 579 (quoting Shackelford v. DeLoitte & Touche, LLP, 190 F.3d 398, 408-409 (5th Cir.
1999) (emphasis in Shackelford). The law is well-settled that:
[E]ven an incorrect belief that an employee’s performance is inadequate
constitutes a legitimate, nondiscriminatory reason. We do not try in court the
validity of good faith beliefs as to an employee’s competence. Motive is the
issue.
. . . [A] dispute in the evidence concerning . . . job performance does not
provide a sufficient basis for a reasonable factfinder to infer that [the] proffered
justification is unworthy of credence.
Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (internal citation omitted).

Memorandum Opinion and Order – Page 14

Cramer also argues that considering Merryman’s uncertainty of Cramer’s technical
abilities, the failure of Merryman to talk with or interview Cramer to determine the level of his
technical abilities and Merryman’s assumption that Cramer did not have such capabilities is
suspicious. Cramer also states that his time in War Room with Merryman was limited, and
Merryman’s failure to observe him performing technical issues does not mean Cramer did not
perform such technical issues.

Cramer’s arguments are unavailing.

Cramer testified that

Merryman was present in the War Room at the time Cramer was War Room manager “at least
once or twice a week, sometimes more” for approximately two to three years. Def.’s App. at 35.
Cramer further testified that Merryman had the opportunity to view his management style and
abilities and assess those through his time spent in the War Room. Id. Merryman stated in his
affidavit that he did not conduct formal interviews of either Cramer or Zvolanek for the DST
manager position; rather, Merryman relied on his prior experience and interactions with both
Cramer and Zvolanek and his knowledge of their abilities through these interactions to assess
both of them for the DST manager position. Def.’s App. at 100. The evidence shows that
Merryman did not make a baseless assumption regarding Cramer’s competence but formed good
faith beliefs as to Cramer’s competence based upon his observations while in the War Room.
With respect to Merryman’s failure to interview Cramer, the evidence demonstrates that
Merryman treated both Zvolanek and Cramer the same in this regard and did not interview either
person for the position. Accordingly, the court determines that Merryman’s failure to interview
or talk with Cramer and his alleged incorrect assumption or assessment regarding Cramer’s
abilities do not demonstrate pretext.

Memorandum Opinion and Order – Page 15

Cramer next argues that he did have the technical capabilities to perform the DST
manager position and that this is evidence of pretext. NEC counters that Cramer’s disagreement
with its assessment of his technical abilities does not demonstrate pretext.
There were regular, hourly workers in the War Room that Cramer managed and
specialists from outside vendors, such as ACS, HP, and NCR, that also performed services for 7Eleven. Pl.’s App. at 6. Cramer presents evidence that the specialists from ACS, HP, and NCR
did not necessarily have skillsets that he and the individuals he managed in the War Room did
not also have. Pl.’s App. at 6. Cramer testified that he and the individuals he managed “could
do a lot of things” that the specialists from ACS, HP, and NCR were doing. Pl.’s App. at 6-7.
Cramer also testified that he “was the big picture guy,” but he also “got [his] hands wet and []
did a lot of the other things, also.” Pl.’s App. at 11-12.
Shaver testified that during the time that Cramer managed the War Room, Cramer called
on vendors and other support teams to resolve issues. Def.’s App. at 47. Cramer testified, for
example, that he called on Zvolanek once in a while to help the War Room with some issues.
Def.’s App. at 19. Merryman stated in his affidavit that he witnessed Cramer attempt to solve
technical issues, fail to solve those issues, and then call vendors for help. Def.’s App. at 98.
Shaver testified that if a new issue arose that did not follow the decision tree or the documents
accessible within the War Room, Cramer would have to seek out production support expertise.
Def.’s App. at 47.

The evidence, viewed in the light most favorable to Cramer, demonstrates

that he used vendors at times to perform the work of the War Room and did not have the ability
to troubleshoot all issues to resolution. This evidence, however, does not demonstrate that
Merryman’s assessment that Cramer lacked the technical abilities to perform the DST manager

Memorandum Opinion and Order – Page 16

position, based upon his observations of Cramer failing to troubleshoot certain issues and calling
on vendors for assistance, was false or unworthy or credence as required by the ADEA.
Even if Merryman’s assessment was incorrect, Cramer still has not demonstrated that
Merryman’s assessment constitutes pretext.

“The [pretext] inquiry is focused on whether

[NEC’s] explanation, accurate or not, is ‘the real reason’” for not selecting Cramer for the DST
manager position. Vaughn, 2011 WL 6382033, at *4 (citing Laxton, 333 F.3d at 579). “Our
anti-discrimination laws do not require an employer to make proper decisions, only
[nondiscriminatory] ones.” LeMaire v. Louisiana, 480 F.3d 383, 391 (5th Cir. 2007). Cramer
asserts that because he did have technical capabilities to perform the job, it “crashes” NEC’s lack
of technical capabilities argument. Resp. at 16. Assuming arguendo that Cramer had the
technical abilities to perform the job, the court finds that this demonstrates at most that
Merryman’s assessment was incorrect. As the court previously established, NEC is allowed to
be incorrect in its assessment of the facts it relies on to justify not selecting Cramer, but it is not
allowed to have any discriminatory animus against him in making its decision. Vaughn, 2011
WL 6382033, at *4. “[Cramer] must do more than just dispute the underlying facts and argue
that [NEC] made the wrong decision in order to survive summary judgment.” LeMaire, 480 F.3d
at 391.
Finally, Cramer asserts that two comments made by Merryman demonstrate pretext.
First, Cramer contends that Merryman made a false statement to Shaver when he stated that he
spoke to Cramer about the DST manager position. Shaver testified that he spoke with Merryman
around September or October 2009 about three persons to consider for the DST manager
position: Moore, Kremer, and Cramer. Pl.’s App. at 33, 34. Shaver testified that he would “tag
up” with Merryman, and he (Merryman) would state that he would meet with the three

Memorandum Opinion and Order – Page 17

individuals “next week” or the “week after that.” Pl.’s App. at 34. Shaver testified that
Merryman finally stated, sometime before the beginning of the year (2010), that he met with
them, and Shaver did not hear any details regarding the meeting with Cramer and has no idea
what was discussed or the outcome. Id. Merryman testified that he did not speak with Cramer
regarding the DST manager position. Def.’s App. at 86. Merryman stated in his affidavit that he
did not conduct formal interviews with either Cramer or Zvolanek; rather, he relied on his prior
experience and interactions with both Cramer and Zvolanek and his knowledge of their abilities
through these interactions to assess both of these individuals. Def.’s App. at 100.
Regarding the second comment, Cramer states in his affidavit that in December 2009,
Merryman met with him in the break room at 7-Eleven and told him that he was not getting the
DST manager position. Pl.’s App. at 52. Cramer states that Merryman informed him that the
decision was not his, but Worley’s. Id. Cramer also states that Merryman told him that “if it
were up to him he would have hired [Cramer] in a minute because he knew [Cramer], he knew
how [Cramer] worked, and how successful [Cramer] was managing the 7-Eleven War Room.”
Id.
The court determines that these statements do not provide evidence that NEC’s stated
reasons for not selecting Cramer for the DST manager position are false or that Merryman made
the decision to not select Cramer because of Cramer’s age. At most, these statements create only
a weak dispute of fact as to whether NEC’s reasons are untrue. See Reeves, 530 U.S. at 148
(holding that there are instances in which a showing of pretext is insufficient to establish
discrimination: (1) when the record conclusively reveals some other, nondiscriminatory reason
for the employer’s decision, or (2) when the plaintiff creates only a weak issue of fact as to
whether the employer’s reason was untrue, and there was abundant and uncontroverted evidence

Memorandum Opinion and Order – Page 18

that no discrimination occurred.) A decision as to whether judgment as a matter of law is
appropriate ultimately turns on “the strength of the plaintiff's prima facie case, the probative
value of the proof that the employer’s explanation is false, and any other evidence that supports
the employer’s case and that properly may be considered on a motion for judgment as a matter of
law.” Id at 148-49. The court finds that these statements offered as evidence of pretext by
Plaintiff are insufficient to demonstrate pretext in light of the uncontested evidence that
Defendant made its decision based on its assessment of Plaintiff’s abilities, whether accurate or
not.
For the foregoing reasons, the court determines Plaintiff has not demonstrated a genuine
dispute of material fact for which one may reasonably infer that the “lack of technical abilities”
reason was false or unworthy of credence as required by the ADEA.
b. Lack of Managerial Abilities and Failure to Always Satisfactorily
Perform Services for 7-Eleven in the Past Reasons
The court next considers the “lack of managerial abilities” and “failure to always
satisfactorily perform services” reasons in tandem, as they are closely related. Plaintiff asserts
these reasons proffered by Defendant have no basis in fact and that Defendant emphasizes
isolated incidents in which Cramer voiced displeasure with technicians and other vendors and
allegedly had arguments with 7-Eleven employees.

Defendant counters that Plaintiff’s

arguments amount to a disagreement whether his managerial abilities were insufficient for the
DST manager position and that an employer’s incorrect belief as to competence does not
constitute pretext.
Merryman testified that he thought Cramer was “aggressive, dedicated and persistent, but
not always in a positive manner.” Def.’s App. at 74. Merryman elaborated, “[i]t was not
uncommon for Mr. Cramer to have little patience with technicians that were doing their first
Memorandum Opinion and Order – Page 19

services for 7-Eleven or on 7-Eleven premises.”

Def.’s App. at 75.

Regarding Cramer,

Merryman further testified, “[w]e also had found that there was, at times, demeaning
circumstances that our technicians reported back to me, and there was overall a lack of, in my
opinion, time management and escalation management or issues management . . . .” Def.’s App.
at 75. Merryman stated in his affidavit that he “saw Cramer refuse to listen to suggestions from
vendors and other individuals about how to resolve technical issues . . . [and] also witnessed
Cramer frequently argue with 7-Eleven employees, causing [him] to believe that 7-Eleven was
not satisfied with the services that Cramer provided to 7-Eleven.” Def.’s App. at 98.
Cramer rebuts the evidence presented by NEC by presenting evidence that Shaver and 7Eleven valued his management style as War Room manager. Shaver testified:
There may have been occasions where they—people would claim [Cramer] was
pushy, but it was pushy on our behalf.
And on our behalf, [Cramer] was just like a watchdog. He was very good
at what he did to drive things to fruition and get things done, and we really were
pleased with [Cramer]. Even though people may have said, “well, [Cramer] was a
little assertive on this,” but he was assertive and got the job done. And he’s been
recognized for getting the job done.
Pl.’s App. at 38-39. Plaintiff argues his “pushing” and “aggressiveness” were the key
factors that made him such a success as the War Room manager.
Consistent with Merryman’s observations, Shaver testified that Cramer had an aggressive
management style. Pl.’s App. at 39. Shaver further testified that Cramer’s management style
was sometimes termed as “pushy.” Id. Shaver, however, found this style suitable. Id. Cramer
testified that sometimes if he had started on a course of action, he would not consider
suggestions from others. Def.’s App. at 24. Cramer stated that if he and his team started on one
course of action, they would stay on that course of action until it either passed or failed. Id.
Cramer testified that he “butted heads with people that [he] didn’t feel had the answers.” Def.’s
Memorandum Opinion and Order – Page 20

App. at 32. “[He] didn’t butt heads with people who did have the answers.” Id. Cramer testified
that individuals complained that it took too long for the War Room to resolve issues, and that
such comments from an individual named Kelli Hanson were “moderately frequent” and such
comments from Richard Shaver occurred “once in a while.” Def.’s App. at 20. Cramer testified
that Merryman had the opportunity to view his management style and abilities and assess those
through his time spent in the War Room. Def.’s App. at 35. Cramer agreed that some people
could possibly prefer different management styles than others. Def.’s App. at 36.
Having reviewed the full record, the court determines Merryman’s observations are
supported by the record. The record, at most, demonstrates that Shaver and Merryman disagreed
as to Cramer’s management abilities and that Merryman was incorrect as to whether 7-Eleven
was always satisfied with Cramer’s services. The court previously stated that NEC is allowed to
be incorrect in its assessment of the facts it relies on to justify not selecting Cramer, but it is not
allowed to have any discriminatory animus against him in making its decision. A court “should
not substitute [its] judgment of an employee’s qualifications for the employer’s in the absence of
proof that the employer’s nondiscriminatory reasons are not genuine.” EEOC v. Louisiana
Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995). Plaintiff has not demonstrated that
Merryman’s perception of his managerial abilities and performance of services for 7-Eleven in
the past, accurate or not, was not the real reason for his decision to not select Cramer for the DST
manager position. Accordingly, Cramer has failed to create a genuine dispute of material fact
from which one may reasonably infer that the “lack of managerial abilities” and “failure to
always satisfactorily perform services” reasons are false or unworthy of credence.

Memorandum Opinion and Order – Page 21

IV.

Defendant’s Motion to Strike Plaintiff’s Evidence
NEC filed Defendant NEC Corporation of America’s Motion to Strike Evidence Cited in

Plaintiff’s Brief in Support of His Response to Motion for Summary Judgment on July 29, 2011.
The court reviewed the motion, response, and reply, and ruled on certain evidentiary objections
in this opinion as the evidence was presented in the summary judgment briefing. The court
considered as evidence those portions of the Amended Declaration of Albert Cramer that
constituted competent summary judgment evidence, as it was filed pursuant to this court’s order
of August 25, 2011. To the extent the court has not explicitly ruled on NEC’s objections to
Plaintiff’s evidence, the court overrules such objections and denies NEC’s motion as moot, as it
has only considered evidence that is admissible pursuant to Rule 56 of the Federal Rules of Civil
Procedure and the summary judgment standard herein enunciated.
V.

Conclusion
For the reasons herein stated, the court concludes that Cramer has failed to raise a

genuine dispute of material fact that age was the “but-for” cause of NEC’s decision not to hire
him for the DST manager position. Accordingly, NEC is entitled to judgment as a matter of law,
and the court grants Defendant NEC Corporation of America’s Motion for Summary Judgment.
The court denies as moot Defendant NEC Corporation of America’s Motion to Strike Evidence
Cited in Plaintiff’s Brief in Support of His Response to Motion For Summary Judgment to the
extent herein stated. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, the court will
issue judgment by separate document.

Memorandum Opinion and Order – Page 22

It is so ordered this 3rd day of February, 2012.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 23