Johnson et al v. BAE Systems Land & Armaments, L.P.
Filing
117
MEMORANDUM OPINION AND ORDER denying 72 Motion to Strike filed by BAE Systems Land & Armaments LP; denying 75 Motion to Sever filed by BAE Systems Land & Armaments LP; granting in part and denying in part 78 Motion for Summary Judgment filed by BAE Systems Land & Armaments LP; and denying 81 Motion to Strike filed by BAE Systems Land & Armaments LP. (Ordered by Chief Judge Sidney A Fitzwater on 4/30/2014) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RICKIE L. JOHNSON, et al.,
Plaintiffs,
VS.
BAE SYSTEMS LAND &
ARMAMENTS, L.P.,
Defendant.
§
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§ Civil Action No. 3:12-CV-1790-D
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§
§
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§
§
MEMORANDUM OPINION
AND ORDER
In this action by four African-American plaintiffs and one Hispanic plaintiff alleging
claims for race discrimination and retaliation arising from a reduction in force (“RIF”), the
court decides motions for summary judgment, to strike the testimony of two of plaintiffs’
expert witnesses, and for severance or separate trials. For the reasons explained, the court
grants in part and denies in part the motion for summary judgment and denies the motions
to strike expert testimony and for severance or separate trials.
I
This is a lawsuit by five plaintiffs—Rickie Johnson (“Johnson”), Robert Allen
(“Allen”), Levi Daniels (“Daniels”), Carl Whitley (“Whitley”), and Eduardo Dominguez
(“Dominguez”)—alleging that defendant BAE Systems Land & Armaments (“BAE”) is
liable for race discrimination, in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Texas Commission on Human
Rights Act (“TCHRA”), Tex. Labor Code Ann. § 21.001 et seq. (West 2006), and for
retaliation, in violation of Title VII and the TCHRA. All five plaintiffs assert race
discrimination claims under § 1981, Title VII, and the TCHRA; three plaintiffs—Johnson,
Whitley, and Dominguez—bring retaliation claims under Title VII and the TCHRA.
BAE designs, develops, and produces combat vehicles and munitions that are used by
military and law enforcement.1 Under a contract with the U.S. Army, BAE provides on-site
technical support for vehicles and munitions at Fort Hood in Killeen, Texas. Plaintiffs were
employees of BAE who worked at Fort Hood. Johnson, Allen, Daniels, and Whitley are
African-American, and Dominguez is Hispanic. BAE maintains that it terminated plaintiffs’
employment in April 2011 as part of a RIF.
At the time of their terminations, Allen, Daniels, and Whitley were Field Service
Representatives (“FSRs”), while Johnson and Dominguez were Senior Field Service
Representatives (“Sr. FSRs”).2 The only other employee terminated during the RIF was
James Cole (“Cole”), a Caucasian FSR. At the time of the RIF, there were twelve Sr. FSRs
and twenty FSRs. The only two minority Sr. FSRs—Johnson and Dominguez—were
terminated in the RIF, leaving ten Sr. FSRs, all of whom were Caucasian. Three of the four
African-American FSRs were terminated (Allen, Daniels, and Whitley), leaving fourteen
1
In deciding BAE’s summary judgment motion, the court views the evidence in the
light most favorable to plaintiffs as the summary judgment nonmovants and draws all
reasonable inferences in their favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541
F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v.
Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
2
FSRs and Sr. FSRs generally perform the same tasks and have the same skill sets.
They are distinguished only by seniority or experience.
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Caucasian FSRs, one African-American FSR, one Hispanic FSR, and one Asian FSR.
Earl Briggs (“Briggs”) was in charge of the Fort Hood division and initially hired all
of the plaintiffs, except Allen. He did not, however, directly supervise the FSRs or Sr. FSRs;
that responsibility belonged to his Staff FSRs. Joe Joyce (“Joyce”), an African-American,
was the Staff FSR responsible for supervising plaintiffs when they were hired, but Joyce
retired in March 2010. Briggs replaced Joyce with George Clarkson (“Clarkson”), a
Caucasian, who assumed Joyce’s responsibility as Staff FSR.
Clarkson shared this
responsibility with Pete Atherholt (“Atherholt”) until Atherholt retired in December 2011.
As Staff FSRs during the period in question, Clarkson and Atherholt supervised plaintiffs’
employment and reported directly to Briggs.
In 2009 Whitley made several complaints to Clarkson about the use of racially
derogatory language by coworkers at BAE. In particular, he complained to Clarkson that an
employee named Chris Trubee (“Trubee”) told several African-American employees that he
was “going to pull [his] whip out and make [them get] to work.” D. App. 601. He also
complained to Clarkson that a Caucasian contractor named Ray Swoda (“Swoda”) repeatedly
referred to a Hispanic employee as a “dumb-ass Mexican.” Id. at 607. When Whitley
complained about Swoda’s comments, Clarkson smiled and walked away.
In September 2010 Johnson sent an email to Briggs, Clarkson, and Atherholt
complaining about the use of racially derogatory language by several BAE employees and
contractors who worked in the motor pool at Fort Hood. Around the same time, he also had
a telephone conversation with Clarkson during which he complained that a contractor named
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Adam Brewer (“Brewer”) had used the “N word” while at work.
The following month Briggs determined that a RIF was necessary. He notified David
Bautista (“Bautista”) in BAE’s Human Resources Department (“HR”) and began working
on the RIF. Under company policy, Briggs was required to draft a RIF business plan. A RIF
business plan asks for certain information about a proposed RIF, including the reasons for
the RIF, the anticipated dates of separation for those selected for termination, the positions
likely to be eliminated, and the names of the employees likely to be laid off as a result of the
RIF.
Clarkson and Atherholt provided Briggs with information that he included in the first
RIF business plan, which was submitted on November 24, 2010 (the “November 2010
Plan”). The November 2010 Plan attributed the RIF to a shift in demand for M9 ACE
vehicle support. The section explaining the reason for the proposed RIF stated, in pertinent
part:
In the 2000-2002 timeframe the company received new
contracts for [FSRs] to support units equipped with M9 ACE
vehicles. During that period the . . . department hired three ACE
FSRs to support the customers’ needs. Based on additional
contract requirements . . . we added three to our ACE FSR staff
bringing the total to six.
The requirements for ACE FSRs peaked in the 2006 timeframe
and our last contract requirement was completed in December
2008. As the requirements began to decline we initiated actions
to cross-train the ACE FSRs onto other vehicle systems such as
HERCULES and Paladin. This cross-training met with varied
degrees of success with the end result that they are still not
qualified to support . . . platforms other than the ACE nor do we
project their being able to do so in the foreseeable future. As a
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result we now have six ACE FSRs on staff that are not qualified
to support other systems or [contract] projects.
*
*
*
In order to bring the FSR staffing in line with contractual
requirements and the projected 2011 Operating Budget a
Reduction in Force is requested for the group of ACE FSRs.
Ps. App. 485 (alteration added). The plan identified Allen, Dominguez, Johnson, Whitley,
Cole, and Joseph Malong (“Malong”) as employees likely to be considered for termination
under the RIF.
Briggs, Clarkson, and Atherholt continued to work on the RIF until Briggs submitted
the final RIF business plan on March 28, 2011 (the “March 2011 Plan”). The March 2011
Plan, like the November 2010 Plan, identified Allen, Dominguez, Johnson, Whitley, and
Cole as employees likely to be laid off. But it removed Malong from the original list and
added Daniels and Ronald DeShong (“DeShong”). The narrative section of the document
(quoted above) remained substantially the same, but it was revised to state that the division
now had seven, as opposed to six, “ACE FSRs on staff that are not qualified to support other
systems or [contract] projects.” Id. at 488 (alteration added).
Although the March 2011 Plan, like the November 2010 Plan, attributed the RIF to
a reduction in demand for M9 ACE vehicle work, Daniels, who was added to the list, had
never been considered an ACE FSR at any point during his tenure with BAE. Another BAE
employee who was considered an ACE FSR was not included in the RIF. And DeShong,
who is Caucasian, was not actually terminated despite being listed on the March 2011 Plan.
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While the RIF was being debated, HR provided Briggs, Clarkson, and Atherholt
several forms and spreadsheets to use during the process for deciding whom to select for
termination under the RIF. Initially, Briggs, Clarkson, and Atherholt used a RIF selection
form with three major categories: “Performance,” “Criticality,” and “Discipline.” Each
category had a number of subcategories and provided for the allotment of points on a 1-5
scale. Supervisors were expected to evaluate their subordinate employees for their abilities
in each category, assign a numerical score for each category, and sum the scores. This sum
would result in a total score, which would reflect an overall rating for the employee. After
employees were rated, Briggs, Clarkson, and Atherholt were expected to sort the forms from
lowest to highest overall rating. Employees with the lowest overall ratings were to be
considered first for termination under the RIF.
Briggs, Clarkson, and Atherholt did not complete RIF selection forms for every FSR
and Sr. FSR in the Fort Hood division. Instead, Briggs completed RIF selection forms only
for the employees who had already been selected for termination and identified under the
November 2010 Plan. Because Briggs did not directly supervise any of the FSRs or Sr. FSRs
selected for termination, he relied on information provided by Clarkson and Atherholt when
completing the forms.
In December 2010 HR replaced the RIF selection forms with a more comprehensive
spreadsheet. In March 2011 another HR employee, Steven Routson (“Routson”), began
assisting Briggs with the RIF. Routson provided Briggs with a modified spreadsheet
template. Briggs revised the spreadsheet at least ten times during the period between January
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and April 2011. By the end of the revision process, and although the spreadsheets included
categories not covered by the RIF selection forms, the same six employees who had been
previously identified for termination using the RIF selection forms were identified for
termination on the final spreadsheet.
When Briggs initially received the spreadsheet template from Routson, the
spreadsheet contained data that had been entered, or “pre-populated,” using HR’s software.
But Briggs, Clarkson, and Atherholt created new definitions for several categories on the
spreadsheet, and Briggs asked Routson to add these definitions to the final spreadsheet.
After consulting with Clarkson and Atherholt about the spreadsheet, Briggs entered values
under each category (including the categories governed by the newly created definitions) for
the FSRs and Sr. FSRs in his group. These values were largely, if not exclusively, based on
the subjective opinions of Clarkson and Atherholt. Once values were entered on the
spreadsheet, the values were summed, yielding a total score that reflected an overall rating
for the employee. The FSRs and Sr. FSRs were then sorted on the spreadsheet based on their
overall ratings, and the final spreadsheet ranked Johnson, Allen, Daniels, Dominguez,
Whitley, Cole, and DeShong as the lowest-performing members in Briggs’s division.
During this revision process, certain employees’ scores were repeatedly changed.
Some of plaintiffs’ scores were lowered on the same day—even though the selection criteria
remained constant over time. During his deposition, Routson explained that it was possible
for managers, such as Briggs, to manipulate the individual values in the spreadsheet to see
what impact different scores would have on an employee’s overall rating and whether the
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ultimate outcome of who would be selected for termination would change. Neither Routson
nor Bautista was sure why Briggs made revisions to the spreadsheet during this time. Two
versions of the spreadsheet were titled “What If 2010.” When asked why these drafts were
titled this way, Briggs testified, “I don’t know.” Id. at 198.
On the first spreadsheet, which was created in mid-January 2011, Daniels was ranked
22nd, with ten employees ranked below him, including employees who were never selected
for termination. The six employees who were initially listed on the November 2010
Plan—Allen, Dominguez, Johnson, Whitley, Cole, and Malong—were highlighted in red.
During his deposition, Briggs admitted that he highlighted these six employees in red, but
when asked why, he testified: “I don’t recall exactly.” Id. at 193. In an email from Briggs
to Bautista dated January 11, 2011, Briggs expressed concern that using the new spreadsheet
would justify the termination of individuals other than the six initially listed on the
November 2010 Plan, stating:
Expanding the population and using the spreadsheet is also
complicating the selection. We have been basing the reduction
on the absence of M9 ACE work and the fact that we have FSRs
who were hired solely to work ACE and they lack the skills to
transition on to other platforms. The ratings show that the 6
ACE FSRs [Allen, Dominguez, Johnson, Whitley, Cole, and
Malong] are in the bottom 10-11 of the rankings. Therefore, we
pick up 4 non-ACE FSRs whose documented performance puts
them in the bottom group of rankings. I would not envision
preparing a business case to retain any of these. Your thoughts?
Id. at 442 (bracketed material added, paragraph break omitted). The four non-ACE FSRs to
whom Briggs referred were Andre Destremps (“Destremps”), Daniel Wood (“Wood”),
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Michael Garrett (“Garrett”), and DeShong. By the time the final spreadsheet was created,
Destremps, Wood, and Garrett had moved up in the rankings—ahead of Daniels—and were
not selected for termination. DeShong remained in the bottom six, but he was not terminated.
In late January or early February of 2011—during the time in which Briggs, Clarkson,
and Atherholt were discussing alterations to the spreadsheet—Whitley and John Strickland
(“Strickland”), an employee of another company that shared the motor pool with BAE at Fort
Hood, overheard a conversation between Clarkson and Swoda while working in the motor
pool. During this conversation, Swoda complained of financial difficulties caused by his
divorce. Clarkson expressed sympathy for him and told him: “When I get rid of these ‘N
words’, I’ll bring you on as an FSR.” Id. at 375 (describing conversation); 376 (clarifying
that Clarkson “said ni---r” (alteration added)3); D. App. 600 (deposition testimony of Whitley
that he heard Clarkson tell Swoda, “when I get rid of some of the ni---rs, I’ll hire you”).
Plaintiffs were terminated in April 2011. Clarkson and Bautista informed Johnson,
Allen, Daniels, Whitley, and Dominguez of their terminations in the motor pool in front of
their coworkers. Cole, the only other employee terminated during the RIF, was notified
separately at one of BAE’s offices, away from coworkers.
Following their discharge, plaintiffs filed this suit against BAE, bringing claims of
race discrimination under § 1981, Title VII, and the TCHRA. Johnson, Whitley, and
3
In this memorandum opinion and order, the court has used the redaction “ni---r” in
place of the actual term. Accordingly, the court will not hereafter indicate that the term has
been altered.
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Dominguez also assert retaliation claims under Title VII and the TCHRA. BAE moves for
summary judgment on all claims, or, alternatively, on plaintiffs’ request for punitive
damages. Plaintiffs oppose the motion.
II
Because plaintiffs will bear the burden of proof on their claims for race discrimination
and retaliation, BAE can meet its summary judgment obligation by pointing the court to the
absence of admissible evidence to support the claim in question. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once BAE does so, plaintiffs must go beyond their pleadings and
designate specific facts showing that there is a genuine issue for trial. Id. at 324; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is
genuine if the evidence is such that a reasonable trier of fact could return a verdict in
plaintiffs’ favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Plaintiffs’
failure to produce proof as to any essential element of a claim renders all other facts
immaterial. TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007)
(Fitzwater, J.). Summary judgment is mandatory if plaintiffs fail to meet this burden. Little,
37 F.3d at 1076.
III
BAE moves for summary judgment on plaintiffs’ race discrimination claims,
contending that plaintiffs have not established a prima facie case of race discrimination, and
that they have failed to create a genuine issue of material fact that BAE’s stated legitimate,
nondiscriminatory reason for terminating plaintiffs is pretextual.
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A
Plaintiffs bring this claim under 42 U.S.C. § 1981, Title VII, and the TCHRA, but the
court for convenience will refer throughout this memorandum opinion and order only to Title
VII because “Title VII and [§] 1981 require the same proof to establish liability.”
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999) (citing Bunch
v. Bullard, 795 F.2d 384, 387 n.1 (5th Cir. 1986)). “Similarly, the law governing claims
under the TCHRA and Title VII is identical.” Id. (citing Colbert v. Ga.-Pac. Corp., 995 F.
Supp. 697 (N.D. Tex. 1998) (Kendall, J.)). “Because these three statutory bases are
functionally identical for the purposes of [plaintiffs’] claims, it would be redundant to refer
to all of them.” Id.
Under Title VII, it is an “unlawful employment practice for an employer . . . to
discharge any individual . . . because of such individual’s race[.]” 42 U.S.C. § 2000e-2(a)(1).
To prevail on their discrimination claim, plaintiffs must present direct or circumstantial
evidence that their race was a motivating factor for BAE’s adverse employment action. See,
e.g., Siddiqui v. AutoZone W., Inc., 731 F.Supp.2d 639, 648 (N.D. Tex. 2010) (Fitzwater,
C.J.) (addressing Title VII claims for rase-based harassment, discrimination based on race,
ethnicity, national origin, and religion, and retaliation) (citing Roberson v. Alltel Info. Servs.,
373 F.3d 647, 652 (5th Cir. 2004)). “‘Direct evidence is evidence that, if believed, proves
the fact of discriminatory animus without inference or presumption.’” West v. Nabors
Drilling USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003) (Fitzwater, J.) (age discrimination
case) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). “If
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an inference is required for the evidence to be probative as to [BAE’s] discriminatory animus
in firing [plaintiffs], the evidence is circumstantial, not direct.” Sandstad, 309 F.3d at 89798.
“If the plaintiff provides direct evidence, then the burden shifts to the employer to
prove that the same adverse action would have occurred regardless of discriminatory
animus.” Jones v. Overnite Transp. Co., 212 Fed. Appx. 268, 272 (5th Cir. 2006) (per
curiam) (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). If the plaintiff
provides circumstantial evidence, “the modified McDonnell Douglas approach” applies. See
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (age discrimination case).
As modified, McDonnell Douglas consists of three stages. First, plaintiffs must
establish a prima facie case of discrimination, which “creates a presumption that [BAE]
unlawfully discriminated against [them].” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981).
To establish a prima facie case of intentional discrimination in
a reduction-in-force case, a plaintiff must establish the following
elements: (1) he is a member of a protected group; (2) he was
adversely affected by the employer’s decision; (3) he was
qualified to assume another position at the time of discharge;
and (4) there is sufficient evidence, either circumstantial or
direct, from which a fact finder may reasonably conclude that
the employer intended to discriminate in reaching the adverse
employment action, or others who were not members of the
protected class remained in similar positions.
Ortiz v. Shaw Grp., Inc., 250 Fed. Appx. 603, 606 (5th Cir. 2007) (per curiam) (citing
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996); Amburgey v. Corhart
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Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991)).
Second, if plaintiffs establish a prima facie case of race discrimination, the burden
shifts to BAE to articulate a legitimate, nondiscriminatory reason for the employment action
taken against plaintiffs. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).
BAE’s burden is one of production, not proof, and involves no credibility assessments. See,
e.g., West, 330 F.3d at 385. BAE’s “burden requires the production of admissible evidence
in support of its nondiscriminatory reasons.” Hervey v. Miss. Dep’t of Educ., 404 Fed. Appx.
865, 868 (5th Cir. 2010) (per curiam) (citing Burdine, 450 U.S. at 255).
Third, if BAE meets its production burden, plaintiffs may prove intentional
discrimination by proceeding under one of two alternatives: the pretext alternative or the
mixed-motives alternative. See Rachid, 376 F.3d at 312. Under the pretext alternative,
plaintiffs must “offer sufficient evidence to create a genuine issue of material fact . . . that
[BAE’s] reason is not true, but is instead a pretext for discrimination[.]” Id. (citation and
internal quotation marks omitted). Under the mixed-motives alternative, plaintiffs must offer
sufficient evidence to create a genuine issue of material fact “that [BAE’s] reason, while true,
is only one of the reasons for its conduct, and another motivating factor is [plaintiffs’]
protected characteristic[.]” Id. (citation and internal quotation marks omitted). “If the
plaintiff shows that the illegal discrimination was a motivating factor, then the defendant may
respond with evidence that the same employment decision would have occurred regardless
of discriminatory animus.” Ortiz, 250 Fed. Appx. at 606 (citing Rachid, 376 F.3d at 312).
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B
Plaintiffs argue that they have produced direct evidence of discrimination, and that,
as a result, they do not need to satisfy the elements of the McDonnell Douglas framework.
They contend that Clarkson’s promise to Swoda, a Caucasian contractor, that he would hire
him as an FSR after he “g[o]t rid of these [ni---rs],” Ps. App. 375, constitutes direct evidence
of discrimination because Clarkson was a decisionmaker with regard to the RIF, he made this
statement around the time plaintiffs were selected for termination (and within three months
of the termination itself), and the statement refers to plaintiffs’ protected class.4 BAE replies
that Clarkson’s statement is not direct evidence of discrimination because it requires an
inference that Clarkson intended to terminate plaintiffs’ employment because they are
African-American, and that Clarkson’s statement merely establishes that Clarkson was aware
of plaintiffs’ race. BAE posits that Clarkson’s statement is, at most, circumstantial evidence
of discrimination, and that it is insufficient to create a genuine issue of material fact that
BAE’s reason for its adverse employment action is pretextual. Because the court concludes
below that, even if Clarkson’s statement is merely circumstantial evidence of discrimination,
plaintiffs have adduced evidence sufficient to create a genuine issue of material fact on all
essential elements of their claim, the court will assume arguendo that Clarkson’s statement
is circumstantial evidence, and it will apply the modified McDonnell Douglas burden-
4
Plaintiffs do not directly address the fact that the comment does not pertain to
Dominguez’s protected class.
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shifting framework to analyze their race discrimination claims.5
C
The court first considers whether plaintiffs have established a prima facie case of
discrimination. In its brief, BAE cites and applies the elements of a prima facie case of race
discrimination for a non-RIF case, even though its stated legitimate, nondiscriminatory
reason for plaintiffs’ terminations is a RIF. As a result, several of BAE’s contentions are
inapposite because they do not pertain to the elements of a prima facie case involving a RIF.6
See, e.g., Ortiz, 250 Fed. Appx. at 606; Nichols, 81 F.3d at 41; Amburgey, 936 F.2d at 812.
Nevertheless, the court will consider BAE’s arguments under the third stage of the
McDonnell Douglas framework, discussed below, because each contention bears on the
ultimate question whether there is evidence sufficient to create a genuine issue of material
fact about whether BAE intentionally discriminated against plaintiffs.
As to the prima facie case, the court holds that plaintiffs have satisfied all four
elements. Plaintiffs are members of a protected class because Johnson, Allen, Daniels, and
5
The Fifth Circuit and this court have noted repeatedly that direct evidence of
discrimination is rare. See, e.g., Rutherford v. Harris County, Texas, 197 F.3d 173, 180 n.4
(5th Cir. 1999) (sex discrimination case) (stating that because direct evidence is rare in
discrimination cases, plaintiffs must ordinarily use circumstantial evidence to satisfy burden
of persuasion). But the statement attributed to Clarkson brings this case to the brink of—if
not squarely within—the group of rare cases.
6
For example, BAE argues that there is no evidence that plaintiffs were replaced by
persons outside of their respective protected classes. See D. Br. 32. This argument relates
to the fourth element of a prima facie case in a non-RIF case of race discrimination. See,
e.g., Deanes v. N. Miss. State Hosp., 543 Fed. Appx. 366, 369 (5th Cir. 2013) (per curiam)
(citing Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001)).
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Whitley are African-American, and Dominguez is Hispanic. They suffered an adverse
employment action because they were terminated in April 2011. They were qualified to
assume another position at the time of the discharge because they had been employed as
FSRs and Sr. FSRs before the RIF, and, although they were discharged, the FSR and Sr. FSR
positions were not completely eliminated (i.e., other FSRs and Sr. FSRs were retained). And
they have produced evidence from which a reasonable trier of fact could find that BAE
intended to discriminate in selecting them for inclusion in the RIF, and that others who were
not members of the protected classes remained in similar positions. Accordingly, the court
holds that plaintiffs have established a prima facie case of race discrimination.
D
The court next considers whether BAE has met its burden to produce admissible
evidence in support of its proffered legitimate, nondiscriminatory reason for plaintiffs’
terminations. BAE’s stated reason is that plaintiffs were terminated as part of a RIF. “A
[RIF] ‘is itself a legitimate, nondiscriminatory reason for discharge.’” Bourgeois v. Miss.
Valley State Univ., 507 Fed. Appx. 386, 388 (5th Cir. 2013) (per curiam) (quoting EEOC v.
Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)); see also Badilla v. Bombardier
Aerospace Corp., 2003 WL 23017671, at *4 (N.D. Tex. Dec. 18, 2003) (Fitzwater, J.). BAE
has introduced evidence that it undertook the RIF because of a decrease in M9 ACE vehicle
work and a corresponding shift in demand for BAE’s services, which in turn necessitated
budget cuts.
Plaintiffs contend that BAE has failed to carry its burden to produce evidence in
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support of its proffered legitimate, nondiscriminatory reason because the RIF was a sham,
or, alternatively, that the RIF was legitimate on its face but implemented so that race was
impermissibly used as a factor to determine which employees were terminated. The court
disagrees with plaintiffs’ position.
Although a defendant’s proffered legitimate,
nondiscriminatory reason must be sufficiently clear “to afford the employee a realistic
opportunity to show that the reason is pretextual,” Patrick v. Ridge, 394 F.3d 311, 317 (5th
Cir. 2004), BAE’s stated reason satisfies this requirement because it identifies a specific
reason why the RIF was undertaken: to cut costs because of a decrease in M9 ACE vehicle
work and a concomitant shift in demand for BAE’s services. The evidence on which
plaintiffs rely to show that the RIF was a sham or that it was implemented by using race as
a factor is properly considered at the third stage of the McDonnell Douglas framework,
because this evidence essentially challenges the truth or credibility of BAE’s proffered
reason. BAE’s burden at this stage is merely one of production, not proof, and involves no
credibility assessments. See, e.g., West, 330 F.3d at 385. Thus the court holds that BAE has
met its burden of production.
E
Because BAE has met its burden of production, the burden shifts to plaintiffs to
introduce evidence that would permit a reasonable trier of fact to find that BAE’s stated
legitimate, nondiscriminatory reason is pretextual.
1
Plaintiffs must create a genuine issue of material fact under one of the alternative
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methods of proof. They attempt to show that BAE’s justification is pretextual; they make
no attempt to establish that BAE acted with mixed motives. The court will therefore consider
plaintiffs’ arguments under the pretext alternative. See, e.g., Siddiqui, 731 F.Supp.2d at 651
(considering plaintiff’s discrimination claim only under pretext alternative because plaintiff
contended that defendant’s stated justification for termination was pretextual and did not
clearly contend that defendant had mixed motives).
To establish pretext, plaintiffs must show that BAE’s “proffered explanation is false
or unworthy of credence.” Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011)
(quoting Laxton, 333 F.3d at 578) (citation and internal quotation marks omitted). “The
inquiry is focused on whether [BAE]’s explanation, accurate or not, is ‘the real reason’ for
firing [plaintiffs].” Id. (quoting Laxton, 333 F.3d at 579). “[Plaintiffs] must produce
evidence, viewed in the light most favorable to [them], that would permit a [trier of fact] to
believe that [BAE]’s proffered reason for firing [them] was not its true reason but simply
pretext for a racially discriminatory reason.” Id. (citing Laxton, 333 F.3d at 579). “Such
rebuttal evidence, combined with the prima facie case, will suffice to create a genuine issue
of material fact such that summary judgment is inappropriate.” Id. at 637-38 (citing
Machinchick v. PB Power, Inc., 398 F.3d 345, 351 (5th Cir. 2005)).
2
The court holds that a reasonable trier of fact could find that BAE’s proffered
- 18 -
legitimate, nondiscriminatory reason is pretextual. For example,7 plaintiffs have adduced
evidence that four of the five plaintiffs (Johnson, Allen, Whitley, and Dominguez) were
initially selected for termination on the November 2010 Plan, and that Briggs, Clarkson, and
Atherholt manipulated the selection process to ensure that, even after new selection criteria
were introduced through selection forms and spreadsheet templates, these same four
plaintiffs would be among the group laid off. Plaintiffs have also presented evidence that the
fifth plaintiff (Daniels) was added to the termination list during this revision process, even
though his initial performance scores ranked him above several Caucasian FSRs who were
not selected for termination. Although Briggs was the titular decisionmaker for the RIF,
Clarkson’s discriminatory animus can be imputed to Briggs under a “cat’s paw” analysis.
“To invoke the cat’s paw analysis, [plaintiffs] must submit evidence sufficient to establish
two conditions: (1) that a co-worker exhibited discriminatory animus, and (2) that the same
co-worker ‘possessed leverage, or exerted influence, over the titular decisionmaker.’”
Roberson, 373 F.3d at 653 (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227
(5th Cir. 2000)). Plaintiffs have satisfied both elements. They have produced evidence that
Clarkson told Swoda, a Caucasian contractor, that once he “g[o]t rid of these [ni---rs],” he
would “bring [Swoda] on as an FSR [with BAE].” Ps. App. 375. And it is undisputed that
7
“When this court denies rather than grants summary judgment, it typically does not
set out in detail the evidence that creates a genuine issue of material fact.” Valcho v. Dall.
Cnty. Hosp. Dist., 658 F.Supp.2d 802, 812 n.8 (N.D. Tex. 2009) (Fitzwater, C.J.) (citing
Swicegood v. Med. Protective Co., 2003 WL 22234928, at *17 n.25 (N.D. Tex. Sept. 19,
2003) (Fitzwater, J.)).
- 19 -
Clarkson participated in, and Briggs relied on his input throughout, the RIF selection process.
BAE argues that plaintiffs cannot rely on the cat’s paw theory here because Swoda
was not actually hired by BAE after plaintiffs were terminated. But whether BAE followed
through on Clarkson’s promise to Swoda is immaterial. The relevant question is whether
Clarkson’s comment exhibits discriminatory animus. His use of the epithet “ni---rs”
unquestionably satisfies this element. See, e.g., Jones v. Robinson Prop. Grp., L.P., 427 F.3d
987, 993 (5th Cir. 2005) (“[R]acial epithets undoubtably demonstrate racial animus.”); see
also Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish, 327 Fed. Appx. 472, 485 (5th
Cir. 2009) (“Our cases have recognized, and we repeat, that the term ‘ni---r’ is a universally
recognized opprobrium, stigmatizing African-Americans because of their race.” (citation and
internal quotation marks omitted)).
BAE also contends that it is entitled to the “same-actor inference,” which supports a
presumption that plaintiffs’ terminations were not discriminatory. BAE maintains that this
presumption is proper because Briggs hired four of the five plaintiffs. When “the same actor
hires and fires an employee, an inference that discrimination was not the employer’s motive
in terminating the employee is created.” Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 320
n.3 (5th Cir. 1997) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996)). “The
inference is not unassailable, however, and a plaintiff may overcome it by presenting
evidence of ‘sufficiently egregious’ facts.” Curry v. Telect, Inc., 2009 WL 1659344, at *4
(N.D. Tex. June 15, 2009) (Fitzwater, C.J.) (quoting Brown, 82 F.3d at 658). The court
holds, for reasons that it otherwise explains, that plaintiffs have produced evidence of
- 20 -
sufficiently egregious facts to overcome the same-actor inference and to enable a reasonable
trier of fact to find that BAE’s articulated reason for discharging plaintiffs is pretextual.
BAE also maintains that plaintiffs have failed to rebut its legitimate,
nondiscriminatory reason for their terminations because they have failed to prove that there
was a specific need for their skills—specifically, skills related to M9 ACE vehicle
work—after April 2011. But plaintiffs have produced evidence that, although the 2011
terminations were purportedly based on a shift in demand for M9 ACE vehicle work, the last
contract for M9 ACE vehicle support actually ended in December 2008—more than two
years before the RIF. And there is evidence that Johnson did not work on M9 ACE vehicles
after 2006, that Dominguez did not work on M9 ACE vehicles after 2007, and that Daniels
never worked on M9 ACE vehicles. A reasonable trier of fact could infer based on these
facts and other evidence in the summary judgment record that BAE’s proffered legitimate,
nondiscriminatory reason is false or unworthy of credence because this evidence suggests
that a shift in demand for M9 ACE vehicle work was not the real reason why plaintiffs were
included in the RIF.
BAE replies that this evidence is not probative of discriminatory intent because BAE
initially attempted to cross-train its M9 ACE FSRs on other platforms and only eventually
decided to terminate those who could not perform adequately on other systems. While the
trier of fact may find this evidence persuasive at trial, plaintiffs have adduced evidence that
they completed cross-training on other systems, and that several of them performed well on
other platforms, such as the HERCULES and Paladin vehicle systems. As a result, plaintiffs
- 21 -
have carried their burden of producing evidence sufficient for a reasonable trier of fact to
find that BAE’s stated reason for their terminations is false or unworthy of credence.
BAE next argues that plaintiffs’ self-evaluation of their skills is not evidence of
pretext, that employers have wide discretion to rate their employees during a RIF selection
process, and that the mere fact that some of the criteria used during the RIF selection process
were subjective is not evidence of discrimination. The court’s decision to deny summary
judgment on plaintiffs’ race discrimination claim is consistent with these principles.
Plaintiffs do not rely merely on the self-evaluation of their skills or the subjectivity of the
selection criteria used during the RIF decisionmaking process. Their showing is based on
other evidence of discrimination. For example, they have introduced evidence that Briggs
instructed HR to change the selection criteria based on definitions that he created in
collaboration with Clarkson and Atherholt; that Briggs had the opportunity to manipulate
individual values in the spreadsheet to see what impact different scores would have on
employees’ overall ratings and whether the ultimate outcome of who would be selected for
termination would change; that neither Routson nor Bautista knew why the spreadsheet had
been revised during the relevant period; and that Briggs, Clarkson, and Atherholt could not
explain why they entered certain values for some of the plaintiffs’ scores on the spreadsheet.
Plaintiffs have also produced evidence that some of the plaintiffs’ scores were dramatically
lowered on the same day, without any apparent explanation, even though the selection
criteria remained unchanged. This evidence would not compel a reasonable trier of fact to
find in plaintiffs’ favor, and there is certainly evidence in the summary judgment record to
- 22 -
support the finding that BAE did not discriminate based on race. But a reasonable trier of
fact could find in plaintiffs’ favor, and this is what is required to defeat summary judgment.
In its reply brief, BAE contends that plaintiffs cannot establish pretext because they
have failed to produce evidence that any plaintiff was “clearly better qualified” than the FSRs
or Sr. FSRs who were retained. Relying primarily on Baumeister v. AIG Global Investment
Corp., 420 Fed. Appx. 351 (5th Cir. 2011), and Johnson v. Earth Grains Baking Co., 203
F.3d 828, 1999 WL 1240842 (5th Cir. Dec. 1, 1999) (per curiam), BAE argues that plaintiffs’
failure to identify specific comparators for each plaintiff and to produce evidence that each
plaintiff was clearly better qualified than his comparator forecloses plaintiffs’ attempt to
create a genuine issue of material fact as to pretext. The court disagrees.
Unlike this case, in Baumeister and Johnson the plaintiffs failed to produce other
evidence of pretext; that is, the plaintiffs relied exclusively on a comparison of their
qualifications to those of retained employees to create a genuine issue of material fact
regarding pretext. See Baumeister, 420 Fed. Appx. at 354 (noting that plaintiff attempted to
rebut defendant’s proffered legitimate, nondiscriminatory reason only by comparing her
qualifications to qualifications of a retained employee); Johnson, 1999 WL 1240842, at *1
(noting that plaintiff did not offer “any affirmative indicia of unlawful discrimination”
besides evidence of her qualifications compared to those of a retained employee, which were
essentially in “equipoise”).8 Here, by contrast, plaintiffs do not rely exclusively on a
8
For the same reason, Hall v. Sealy, Inc., 2011 WL 4389701, at *6-7 (N.D. Tex. Sept.
21, 2011) (Fitzwater, C.J.) (age discrimination case), which BAE also cites, is
- 23 -
comparison of qualifications. They have produced other evidence to rebut BAE’s proffered
legitimate, nondiscriminatory reason.
Moreover, and contrary to BAE’s characterization, plaintiffs have produced evidence
that they were, in fact, better qualified than at least some of the Caucasian employees who
were retained. For example, there is evidence that Clarkson considered Daniels more
qualified than Garrett (at least based on performance reviews for the year 2010), that
Clarkson considered Daniels more qualified than DeShong (at least for certain work), and
that Clarkson considered Dominguez more qualified than Roger Vann (at least for certain
work). BAE disputes this characterization of the evidence, arguing that Clarkson never
admitted that he considered any plaintiff generally or absolutely more qualified than
someone who was retained. Instead, it posits that, at most, Clarkson admitted that he
considered a plaintiff more qualified than a retained employee in a limited sense—e.g., only
when the comparison was based on performance reviews for a single year, or only when the
comparison was based on an evaluation of their work on certain platforms. But plaintiffs
have adduced proof that would enable a reasonable trier of fact to reject BAE’s interpretation
of the evidence and to find that plaintiffs were better qualified than certain coworkers who
distinguishable. Hall explains the principle, recognized in Baumeister and Johnson, that
“[i]n a RIF case, a plaintiff can prove pretext by introducing evidence that she was clearly
better qualified than [other] employees who were retained.” Hall, 2011 WL 4389701, at *6
(citation and internal quotation marks omitted). In other words, the plaintiff can prove
discrimination based on comparative qualifications alone only if she produces evidence that
she was clearly better qualified as opposed to just better qualified. But she need not make
this showing where she relies on other evidence of pretext, or on evidence of comparative
qualifications in combination with other evidence of pretext.
- 24 -
were retained. The evidence is therefore sufficient to create a genuine issue of material fact.
BAE also argues in its reply brief that the fact that the spreadsheet went through
multiple revisions is not itself evidence of pretext, and that, at most, the summary judgment
record reflects minor procedural irregularities that are not sufficient to raise an inference of
discrimination. But viewing the evidence in the light most favorable to plaintiffs and
drawing all reasonable inferences in their favor, the record reflects more than a series of
isolated procedural irregularities. A reasonable trier of fact could find based on the totality
of the evidence that Briggs manipulated the RIF selection process as a post hoc justification
for terminating the employees who had been included in the RIF initially, for discriminatory
reasons (the same six employees who were highlighted in red on the first spreadsheet).
Furthermore, BAE’s procedural-irregularities theory does not explain why Daniels was
initially listed 22nd—with ten employees ranked below him—on the first spreadsheet, but
had been moved down to the bottom six by the end of the revision process.
BAE also contends that, even if Clarkson’s comment is considered circumstantial
evidence of discriminatory animus toward African-Americans, it is not probative as to the
reason for Dominguez’s termination because the comment does not refer to Hispanics.
Assuming arguendo that Clarkson’s statement to Swoda is not probative as to Dominguez’s
termination, BAE is still not entitled to summary judgment on Dominguez’s race
discrimination claim because a reasonable trier of fact could find that BAE’s proffered
legitimate, nondiscriminatory reason for the discharge is pretextual. When combined with
Dominguez’s prima facie case, this rebuttal evidence is sufficient to create a genuine issue
- 25 -
of material fact. See Vaughn, 665 F.3d at 637-38; Machinchick, 398 F.3d at 351. This result
follows from the fact that plaintiffs’ evidence rebutting BAE’s proffered legitimate,
nondiscriminatory reason is the same for all five plaintiffs, even though Dominguez is of a
different race from the other plaintiffs. “In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling to cover
up a discriminatory purpose.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000). Assuming arguendo that Dominguez cannot rely on Clarkson’s comment to
establish discriminatory intent, he can nevertheless rely on “the general principle . . . that the
factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative
evidence of guilt.’” Id. (citing Wright v. West, 505 U.S. 277, 296 (1992)). “[O]nce the
employer’s justification has been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in the best position to put forth the
actual reason for its decision.” Id. at 147. Accordingly, “[Dominguez]’s prima facie case,
combined with sufficient evidence to find that [BAE]’s asserted justification is false, may
permit the trier of fact to conclude that [BAE] unlawfully discriminated.” Id. at 148.
Finally, the court disagrees with BAE’s position on the pretext issue to the extent
BAE attempts to analyze a piece (or type) of evidence in isolation, and then rely on cases that
support the premise that if this piece (or type) of evidence were the only evidence of pretext,
it would be insufficient to raise a genuine issue of material fact. The proper inquiry is
whether the totality of the evidence is sufficient to create a genuine issue of material fact
regarding pretext. See Shackelford, 190 F.3d at 404 (noting that if court reaches pretext
- 26 -
stage, the issue is “whether the totality of the evidence, including the evidence raised at the
prima facie case and pretext stages, raises a genuine issue of material fact” as to whether
defendant terminated plaintiff because of race).
The court therefore holds that a reasonable trier of fact could find from the evidence
in the summary judgment record that BAE’s proffered legitimate, nondiscriminatory reason
for terminating plaintiffs is pretextual. Accordingly, the court denies BAE’s motion for
summary judgment addressed to plaintiffs’ race discrimination claims.
IV
BAE moves for summary judgment on the retaliation claim brought by Johnson,
Whitley, and Dominguez, contending that they have not established a prima facie case of
retaliation, that they have failed to create a genuine issue of material fact that BAE’s stated
legitimate, nondiscriminatory reason for terminating them is pretextual, and that they have
not created a genuine issue of material fact that they would not have been terminated even
in the absence of any protected activity. Plaintiffs bring this claim under Title VII and the
TCHRA, but, for the reason explained above, the court will refer only to Title VII in this
memorandum opinion and order.
A
Title VII makes it unlawful “for an employer . . . to discriminate against any
individual . . . because he has opposed any practice made an unlawful employment practice
by [Title VII], or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e- 27 -
3(a). To determine whether each plaintiff has established their retaliation claim under Title
VII, the court applies the same modified McDonnell Douglas approach discussed supra in
§ III(A). See, e.g., Cohen v. Univ. of Tx. Health Sci. Ctr., ___ Fed. Appx. ___, 2014 WL
523615, at *3 (5th Cir. Feb. 11, 2014) (applying modified McDonnell Douglas framework
to retaliation claim). Although the analysis is the same at the second and third stages of the
inquiry, the analysis differs at the first stage because the elements of a prima facie case of
retaliation are, of course, different from those for a prima case of race discrimination. To
establish a prima facie case of retaliation, a plaintiff must demonstrate that “(1) he engaged
in a protected activity, (2) an adverse employment action occurred, and (3) a causal link
existed between the protected activity and the adverse employment action.” Walker v. Norris
Cylinder Co., 2005 WL 2278080, at *9 (N.D. Tex. Sept. 19, 2005) (Fitzwater, J.) (citing
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)).
Here, the second element of the prima facie case is satisfied because Johnson,
Whitley, and Dominguez were terminated.9 The remaining questions are whether they
9
In their response, plaintiffs make the conclusory assertion that BAE “failed to provide
them with job opportunities, training, promotions, and responsibilities given to similarly
situated white employees” and “assigned them duties not required of similarly situated white
employees.” Ps. Resp. 1. But in their response brief, the only adverse employment action
they identify is their terminations. See Ps. Br. 45 (“Because Plaintiffs’ termination is clearly
a ‘materially adverse’ employment action, the Court need only decide whether the Plaintiffs
engaged in protected activity and whether a causal link exists between the protected activity
and their termination.”). Because plaintiffs have failed to designate specific facts showing
there is a genuine issue for trial on their other allegations, the court holds that BAE is entitled
to summary judgment dismissing as grounds for an adverse employment action (1) BAE’s
failure to provide plaintiffs with job opportunities, training, promotions, and responsibilities,
and (2) BAE’s assignment of duties not required of similarly situated employees.
- 28 -
engaged in protected activity, and whether there is a causal link between the protected
activity and their terminations in April 2011.
B
The court first considers whether plaintiffs have established that Johnson, Whitley,
and Dominguez engaged in protected activity.
1
“[P]rotected activities include (1) opposing any practice deemed an unlawful
employment practice (the ‘opposition clause’) or (2) making a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or hearing under Title VII (the
‘participation clause’).” Armstrong v. K & B La. Corp., 488 Fed. Appx. 779, 781 (5th Cir.
2012) (per curiam) (citation omitted). Because no plaintiff participated in any investigation,
proceeding, or hearing under Title VII relevant here, each plaintiff’s case rests solely on the
opposition clause. “To satisfy this opposition requirement, [a plaintiff] need only show that
[he] had a ‘reasonable belief that the employer was engaged in unlawful employment
practices.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007)
(quoting Byers v. Dall. Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000)). In other
words, a plaintiff need not show that the practice complained of actually violated Title VII.
See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 401 n.2 (5th Cir. 2013) (noting
that the standard is “reasonable belief” despite language of 42 U.S.C. § 2000e-3(a)).
Accordingly, the only basis for finding that an adverse employment action occurred is
plaintiffs’ terminations in April 2011.
- 29 -
BAE argues that plaintiffs have failed to establish that Johnson, Whitley, and
Dominguez engaged in protected activity because they did not actually oppose any
employment practice at BAE, and, even if they did, they could not have reasonably believed
that BAE was engaged in an unlawful employment practice. Plaintiffs respond that Johnson,
Whitley, and Dominguez all engaged in protected activity when they complained, at various
times, to Clarkson, Atherholt, and Briggs about their coworkers’ use of racially derogatory
language and the hostile treatment of minority FSRs in the motor pool at BAE. BAE replies
that none of these complaints, if made at all, was based on an objectively reasonable belief
that BAE was engaged in an unlawful employment practice under Title VII.
2
The court first considers whether plaintiffs have established that Johnson opposed an
unlawful employment practice at BAE. Plaintiffs rely on four instances of protected activity.
First, they cite evidence that Johnson sent a September 2010 email to Briggs, Clarkson, and
Atherholt complaining about the use of racially derogatory language in the motor pool at
BAE. Second, they cite evidence that Johnson and Clarkson had a telephone conversation
“around the same time” as the September 2010 email during which Johnson complained that
Brewer was using the “N-word” at work. D. App. 442. Third, they assert that Johnson
complained in 2009 that minority FSRs were being excluded from meetings. Fourth, they
cite evidence that Johnson complained to a coworker named Charles Martin (“Martin”) about
the use of racially derogatory language at BAE.
The court holds that the first and second instances qualify as protected activity, but
- 30 -
that the third and fourth instances do not. The first and second instances qualify as protected
activity because there is sufficient evidence from which a reasonable trier of fact could find
that the September 2010 email and contemporaneous telephone conversation were complaints
that BAE was engaged in an unlawful employment practice under Title VII because it
permitted the ongoing use of racially derogatory language in the workplace. See, e.g., Green
v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006) (holding that
reporting instances of coworker’s use of racially derogatory language to supervisor is
protected activity).
By contrast, the third instance does not qualify as protected activity because plaintiffs
have not adduced competent summary judgment evidence to support their conclusory
assertion. They cite two passages from Johnson’s deposition and two passages from Joyce’s
deposition. See Ps. Br. 37 n.281. None of these passages adequately describes the
complaint, and it is unclear whether the activity described in Johnson’s deposition even
relates to the same underlying activity as that described in the passages from Joyce’s
deposition. In the argument section of their brief, plaintiffs do not provide any further detail
or otherwise explain why this conduct qualifies as protected activity. See id. at 46. The court
is not obligated to comb the record in search of evidence that will permit a nonmovant to
survive summary judgment. See, e.g., Arrieta v. Yellow Transp., Inc., 2008 WL 5220569,
at *2 n.3 (N.D. Tex. Dec. 12, 2008) (Fitzwater, C.J.); Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 164 (5th Cir. 2006). Accordingly, BAE is entitled to summary
judgment dismissing this basis for Johnson’s retaliation claim.
- 31 -
Nor does the fourth instance qualify as protected activity. In their response, plaintiffs
neither provide detail about the nature of the complaint nor evidence that BAE had
knowledge of Johnson’s complaint to Martin. This type of vague, informal complaint to a
coworker cannot establish that BAE was on notice of an allegedly unlawful employment
practice, and thus cannot support plaintiffs’ assertion that Johnson engaged in protected
activity when he complained to Martin. See Williams v. Barnhill’s Buffet Inc., 290 Fed.
Appx. 759, 763 (5th Cir. 2008) (per curiam) (noting that “informal complaints to co-workers
were insufficient” to put defendant on notice of need to address situation). BAE is therefore
entitled to summary judgment dismissing this basis for Johnson’s retaliation claim.
The court’s conclusion that the third and fourth instances do not qualify as protected
activity is reinforced by Johnson’s own deposition testimony. During his deposition,
Johnson testified:
Counsel:
Now, backing up just a little bit, when you were
employed with BAE did you ever make any
complaints about race discrimination?
Johnson:
Yes.
Counsel:
When did you make any complaints about race
discrimination?
Johnson:
2010, about in September some time frame I made
a complaint.
D. App. 441. Johnson then clarified that the “complaint” was made “in or [around]
September 2010,” and the only complaints made around that time were the September 2010
- 32 -
email and the telephone conversation about Brewer’s remarks.10 See id. at 442.
Thus the court holds that plaintiffs have created a genuine issue of material fact that
Johnson opposed an unlawful employment practice when he sent his September 2010 email
and participated in the contemporaneous telephone conversation with Clarkson. The court
concludes that plaintiffs have not created a genuine issue of material fact regarding their
assertions that Johnson engaged in protected activity when he complained in 2009 that
minority FSRs were being excluded from meetings, and when he complained to Martin about
the use of racially derogatory language at BAE. As a result, BAE is entitled to summary
judgment dismissing the third and fourth predicates for Johnson’s retaliation claim.
3
The court next considers whether plaintiffs have satisfied the opposition requirement
as to Whitley. In a single paragraph, plaintiffs cite five instances of protected activity. First,
they cite evidence that Whitley complained to Briggs about a performance review he
received from Atherholt and about Atherholt’s treatment of him generally. Second, they cite
evidence that Whitley complained to Joyce in 2010 about Atherholt’s treatment of him.
Third, they cite evidence that Whitley complained to Clarkson twice, once in 2009 or 2010
and the other time in 2010, that Caucasian employees were misappropriating government and
military property for their personal use. Fourth, they cite evidence that Whitley complained
10
During this part of his deposition, Johnson also mentions his complaint to Martin,
see D. App. 442, but as explained above, this complaint cannot satisfy the protected activity
element because it was made to a coworker and there is no evidence that BAE was aware of
it.
- 33 -
to Clarkson in 2009 that Trubee said, in the presence of four African-Americans, that he was
“going to pull [his] whip out and make [them get] to work.” D. App. 601. Fifth, they cite
evidence that Whitley complained to Clarkson in 2009 that Swoda repeatedly used the phrase
“dumb-ass Mexican.”11 Id. at 607.
The court holds that the first three instances do not qualify as protected activity, but
that the fourth and fifth do. The first three instances do not qualify because they are not
complaints about conduct protected by Title VII. In the first, Whitley complained that
Atherholt’s performance review was unfairly harsh and that Atherholt had failed to give him
sufficient notice during his mid-year review that he considered aspects of his job
performance deficient. See id. at 582-83. In the second, Whitley explicitly testified that he
did not complain to Joyce that Atherholt was treating him in a racially discriminatory way.
Id. at 589. In the third, Whitley’s complaint was about the misappropriation of government
or military property, which is not protected activity under Title VII. Because none of these
complaints challenges conduct that violates Title VII, they fail to qualify as protected
activity. See, e.g., Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx. 913, 916
(5th Cir. 2006) (per curiam) (affirming summary judgment for defendant on retaliation claim
11
The summary judgment briefing and record are unclear as to whether Whitley made
multiple complaints to Clarkson about Swoda’s use of racially derogatory language.
Whitley’s deposition testimony can fairly be read as evidence that Whitley complained to
Clarkson about Swoda on multiple, distinct occasions. See D. App. 606-07. Viewing the
evidence this way, it is clear, however, that both complaints occurred in 2009 and that both
referred to Swoda’s use of the phrase “dumb-ass Mexican.” Given the overlapping nature
of the subject matter and apparent temporal proximity, the court refers to these complaints
collectively as one “instance” of opposition activity.
- 34 -
where plaintiff complained of harassment generally but did not complain of harassment based
on protected characteristic); Moore v. United Parcel Serv., Inc., 150 Fed. Appx. 315, 319
(5th Cir. 2005) (per curiam) (affirming summary judgment for defendant on retaliation claim
where plaintiff’s grievance complained of unfair treatment but did not mention race
discrimination); see also Tratree v. BP N. Am. Pipelines, Inc., 277 Fed. Appx. 390, 395 (5th
Cir. 2008) (per curiam) (“Complaining about unfair treatment without specifying why the
treatment is unfair . . . is not a protected activity.”) (age discrimination claim). Accordingly,
BAE is entitled to summary judgment dismissing these predicates for Whitley’s retaliation
claim.
The fourth and fifth instances, however, do qualify as opposition activity because they
are race-related. In both instances, Whitley complained to a BAE supervisor that a coworker
was using racially derogatory language at work. Trubee’s comment that he would whip
employees if they did not get to work is facially race-neutral, but when viewed in context,
a reasonable trier of fact could infer a racial connotation because he made the comment in
the presence of four African-Americans. Cf., e.g., Johnson v. Potter, 177 F.Supp.2d 961, 965
(D. Minn. 2001) (discussing racial connotation of whipping in context of hostile work
environment claim). Swoda’s comments are patently racist. Because these complaints were
instances where Whitley complained to a BAE supervisor about the use of racially
derogatory language, plaintiffs have adduced sufficient evidence from which a reasonable
trier of fact could find that Whitley opposed an unlawful employment practice at BAE. See,
e.g., Willis v. Cleco Corp., ___ F.3d ____, 2014 WL 1379103, at *3-4 (5th Cir. Apr. 8, 2014)
- 35 -
(noting that plaintiff engaged in protected activity by reporting coworker’s comments that
African-Americans were “dumb” and “lazy”).
Thus the court holds that plaintiffs have created a genuine issue of material fact that
Whitley opposed an unlawful employment practice when he complained to Clarkson about
Trubee’s comment and when he complained to Clarkson about Swoda’s comments.12 The
court holds, by contrast, that plaintiffs have not created a genuine issue of material fact that
Whitley engaged in protected activity when he complained (1) to Briggs about Atherholt’s
performance review and general attitude toward him, (2) to Joyce about the way Atherholt
treated him, and (3) to Clarkson about coworkers misappropriating government or military
property. As a result, BAE is entitled to summary judgment dismissing these three
predicates for Whitley’s retaliation claim.
4
The court now turns to whether plaintiffs have satisfied the opposition requirement
as to Dominguez. Plaintiffs rely on four instances of protected activity. First, they cite
evidence that Atherholt told Dominguez that his request for a piece of equipment was “so
ghetto.” D. App. 361. Second, they cite evidence that Dominguez complained to Joyce
12
During his deposition, Whitley testified that he did not “make a complaint of
unlawful discrimination or harassment based on [his] race” while at BAE. D. App. 581. But
during the line of questioning that followed, he testified that he did complain of “retaliation”
while he was an employee. Id. at 581-82. When read in context, it is clear that Whitley’s
complaint was about a racially hostile work environment, not retaliation. That he mislabeled
the nature of his complaint is immaterial, because Title VII’s opposition requirement does
not require that the plaintiff correctly describe the allegedly unlawful employment practice.
Cf. Turner, 476 F.3d at 348.
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about the treatment of minority employees in the motor pool. Third, they cite evidence that
Dominguez gathered statements from other employees about Swoda’s use of racially
derogatory language and presented the statements to Clarkson. Fourth, they cite evidence
that Dominguez informed a group of contractors that racism in the workplace would not be
tolerated.
The court holds that none of these four instances qualifies as protected activity. As
to the first instance, plaintiffs have not presented any evidence that Dominguez complained
to anyone at BAE about Atherholt’s use of the phrase “that’s so ghetto.” The cited
deposition testimony only establishes that Atherholt made this comment in an email he sent
to Dominguez, and that later, when Atherholt met Dominguez in person for the first time,
Atherholt referred to Dominguez as the person with whom he “had . . . the ‘that’s so ghetto
conversation.’” Id. Plaintiffs have not adduced any evidence that Dominguez opposed this
remark.
The second instance—that Dominguez complained to Joyce about the treatment of
minority employees in the motor pool—is not protected activity because the complaint did
not oppose a practice prohibited by Title VII. During his deposition, Dominguez described
his complaint to Joyce in this way:
I told [Joyce] that I didn’t understand our mission there. They
told the guys . . . to not talk to us, not to listen to any technical
advice we had to offer them. We weren’t part of any of their
maintenance meetings. . . . We’re completely out of the loop
here, you know. . . . I just told [Joyce] . . . it’s not what we’re
used to. We’re used to—you know, a BAE environment
[where] everybody is helpful, good morning, you know, those
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types of things, and there was none of that there. I mean, it was
like—the vibe was there that they doesn’t want us there.
Id. at 363 (alterations added, paragraph break omitted). He subsequently clarified this point:
Counsel:
In your conversation with . . . Joyce, did you
mention anything about race or national origin or
minorities?
Dominguez: No.
Counsel:
So you never said, we think we’re being treated
this way because we’re minorities?
Dominguez: No. I said we weren’t being treated fairly like
everybody else does.
Id. This type of vague complaint about unfair treatment, which does not identify any
protected characteristic under Title VII, does not qualify as protected activity. See, e.g.,
Tratree, 277 Fed. Appx. at 395.
The third instance—that Dominguez gathered statements about Swoda’s use of
racially derogatory language and presented them to Clarkson—avoids the two problems
identified above, but the underlying deposition testimony relied on to support this assertion
is taken out of context. Plaintiffs cite an excerpt from Dominguez’s deposition in which he
testified that he brought to Clarkson a statement written by an employee named Travis Cano
(“Cano”), in which Cano accused Swoda of calling another employee, Henry Bostic, a “ni--r.” See D. App. 384. When asked what he did with this statement, Dominguez testified:
“And I took the statement, and I presented it to [Clarkson]. I told him, look, this is not a
healthy work environment.” Id. Read in isolation, this testimony appears to be evidence that
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Dominguez opposed an unlawful employment practice at BAE. But when read in context,
it is clear that Dominguez did not actually oppose anything he thought to be an unlawful
employment practice at the time. In the next portion of his deposition testimony, which
plaintiffs do not address, Dominguez explained:
Counsel:
And did you ever speak to . . . Briggs about the
statement you received from [Cano]?
Dominguez: No.
Counsel:
Did you ever take that statement to human
resources?
Dominguez: No.
Counsel:
And did you take that statement to anyone other
than giving it to . . . Clarkson, who you said he
was going to give it to . . . Briggs?
Dominguez: No, I just gave it to . . . Clarkson.
Counsel:
And why—are you suggesting that you were
retaliated against for this?
Dominguez: For?
Counsel:
For taking this statement from [Cano] and giving
it to . . . Clarkson?
Dominguez: No. I said I was—I felt that I was targeted
because I associated with blacks on the job and
made it known that I did not care for racism,
racist attitudes.
Id. at 385 (emphasis added). Dominguez also testified:
Counsel:
What makes you think that . . . Clarkson would
retaliate against you just because you associated
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with the other four named plaintiffs?
Dominguez: It’s just the feeling that I got when I was around
him.
Counsel:
Did he ever say anything to give you that
impression?
Dominguez: No.
Id. at 385-86. And, most important, Dominguez testified:
Counsel:
So during your entire tenure at BAE . . ., you
never complained to anyone about anything you
thought to be racially hostile or discriminatory?
Dominguez: I was only there five years, and, no.
Counsel:
And during your entire time at [BAE], you never
made any internal complaint about anything you
thought to be discrimination?
Dominguez: No.
Id. at 367 (emphasis added).
When read in context, and especially coupled with his more specific and explicit
testimony that he never complained to anyone about anything he thought to be racially
hostile or discriminatory, Dominguez’s testimony that he gathered statements about Swoda’s
use of racially derogatory language and presented them to Clarkson cannot support a
reasonable trier of fact’s finding that Dominguez opposed an unlawful employment practice
while at BAE, because (1) Dominguez did not consider his taking of the statement to
Clarkson to be a complaint about a racially hostile work environment or discrimination, (2)
he did not follow up with HR or anyone else at BAE, and (3) he admitted during his
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deposition that he was not suggesting that he was retaliated against because he took this
statement to Clarkson. Given that he was clearly and explicitly asked whether he complained
to anyone about anything he thought to be racially hostile or discriminatory while he was at
BAE, and that he answered clearly and explicitly “no,” plaintiffs’ attempt to generate a
material fact issue by taking other deposition testimony out of context fails.
The fourth instance—that Dominguez informed a group of contractors that racism in
the workplace would not be tolerated—likewise fails to qualify as protected activity.
Plaintiffs cite deposition testimony in which Dominguez testified that he addressed a group
of contractors, telling them that racism in the workplace would not be tolerated. See id. at
384-85. Although he recalled the names of specific contractors who were there, he could
not recall whether there were any BAE employees present. He did recall, and stated
explicitly, that neither Briggs nor Clarkson was present. He also testified that he informed
Clarkson that the meeting had occurred after it was completed, but he clarified that he was
not suggesting that Clarkson retaliated against him for addressing the contractors in this
manner. Because this evidence does not establish that Dominguez complained to anyone at
BAE about the situation (or ask that something be done), it cannot constitute opposition
activity because it did not put BAE on notice that a problem needed to be addressed. See,
e.g., Williams, 290 Fed. Appx. at 763.
Thus the court holds that plaintiffs have failed to create a genuine issue of material
fact that Dominguez opposed an unlawful employment practice while at BAE. As a result,
plaintiffs have failed to establish that Dominguez engaged in protected activity and have
- 41 -
therefore failed to establish a prima facie case of retaliation. Accordingly, BAE is entitled
to summary judgment dismissing the retaliation claim brought by Dominguez.
5
Because plaintiffs have produced sufficient evidence that Johnson and Whitley
opposed what they considered to be unlawful employment practices at BAE, the court next
considers whether a reasonable trier of fact could find that their beliefs were reasonable.
BAE contends that neither Johnson nor Whitley can satisfy the objective reasonable belief
standard because no one could have reasonably believed that the underlying activity of which
they complained amounted to a violation of Title VII. Plaintiffs respond that Johnson and
Whitley reasonably believed that the underlying activity was unlawful because they
complained of multiple racially derogatory comments made by several different coworkers
over a prolonged period of time. BAE replies that these were, at most, isolated remarks that
would not come close to establishing a viable hostile work environment claim.
Viewing the evidence in the light most favorable to plaintiffs and drawing all
reasonable inferences in their favor, the court concludes that plaintiffs have produced
evidence that is sufficient to satisfy the reasonable belief standard as to both instances of
Johnson’s opposition activity and both instances of Whitley’s opposition activity.
In his September 2010 email to Briggs, Clarkson, and Atherholt, Johnson complained
that several different coworkers, including Atherholt (one of the supervisors), used racial
epithets at work, such as the “N word.” During his telephone conversation with Clarkson,
which occurred around the same time, Johnson complained that a contractor had used the “N
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word” at work.13
Both of Whitley’s complaints occurred in 2009. When Whitley complained to
Clarkson about Trubee’s use of racially derogatory language, he complained that Trubee told
four African-Americans that he would whip them if they did not get to work. When he
complained to Clarkson about Swoda’s comments, he complained that Swoda repeatedly
referred to a Hispanic coworker as a “dumb-ass Mexican.”
BAE argues that none of these complaints can satisfy the reasonable belief standard
because the underlying comments of which Johnson and Whitley complained would not
come close to establishing a viable hostile work environment claim. In support of this
position, BAE relies principally on two cases, both of which are distinguishable. In Turner
the plaintiff complained that her supervisor told her that she worked with “ghetto children”
during her volunteer service. Turner, 476 F.3d at 342. The Fifth Circuit held that the
plaintiff could not have reasonably believed that the supervisor’s comments constituted an
unlawful employment practice. See id. at 348-49. Here, by contrast, the comments of which
Johnson and Whitley complained were more extreme, especially Swoda’s use of the word
13
The court does not suggest that this telephone conversation would alone satisfy the
protected activity element because it referred to a single remark by a single contractor. Cf.
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959-60 (11th Cir. 1997)
(holding that complaint of single remark by single coworker was insufficient to establish
protected activity); Silver v. KCA, Inc., 586 F.2d 138, 140-43 (9th Cir. 1978) (same). But
here, Johnson made the complaint at the same time he complained of the use of racially
derogatory language by other BAE employees and contractors, and a reasonable trier of fact
could find that the telephone conversation and the email were collectively part of one
instance of protected activity.
- 43 -
“ni---r.” And they referred to members of the workforce.
In Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), the plaintiff
complained that a fellow employee watching a newscast about the capture of two suspected
black snipers had stated: “They should put those two black monkeys in a cage with a bunch
of black apes and let the apes f--k them.” Jordan, 458 F.3d at 336 (internal quotation marks
omitted, alteration added). The Fourth Circuit held that the plaintiff could not have
reasonably believed that the coworker’s racist exclamation gave rise to a viable hostile work
environment claim. See id. at 341. The instant case is distinguishable because the conduct
of which Johnson complained was not an isolated statement by a single individual, but rather
multiple racial slurs, by several different individuals, over a more prolonged period, and they
were directed at employees in the workplace. And unlike in Jordan, Johnson alleges that a
supervisor, not merely a coworker, used racially derogatory language. Whitley’s complaints
are distinguishable as well. Swoda’s comments, for example, were repeated—not a single,
isolated exclamation—and they were also directed at an employee in the workplace.
More generally, BAE is attempting to graft onto the reasonable belief standard a more
stringent requirement than the standard imposes. The panel’s decision in Stewart v. RSC
Equipment Rental, Inc., 485 Fed. Appx. 649 (5th Cir. 2012) (per curiam), is instructive. In
Stewart the plaintiff complained to his supervisor twice: once, when he complained that he
had been treated less favorably than a Caucasian coworker, and a second time, when he
complained that a coworker had spat into his lunch, and about certain computer problems,
which he alleged were instances of discrimination. Id. at 652. The district court held that
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neither complaint constituted a protected activity, but the Fifth Circuit disagreed:
[The plaintiff’s] comments to [his supervisor] . . . suffice as
opposition to racial discrimination. They were sarcastic but
were clearly claims of racial discrimination. We must,
therefore, disagree with the district court’s conclusion that these
were not protected activities. We also reject [the defendant’s]
suggestion that these complaints . . . did not reference conduct
that could “plausibly be considered discriminatory.”
Id. at 653 (quoting Turner, 476 F.3d at 349). Notably, the court held that each complaint
constituted protected activity even though the first one was made sarcastically, neither
complaint included an explicit demand for the employer to correct the problem, and the
underlying complained-of activity would have fallen well short of satisfying the standard for
a hostile work environment. Cf. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th
Cir. 2009) (“A hostile work environment exists ‘when the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.’” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)).
Johnson and Whitley complained of conduct in the workplace that was more severe and
pervasive than the conduct complained about in Stewart. Even if none of these allegations
would suffice to make out a viable hostile work environment claim, Johnson and Whitley
could have reasonably believed that the underlying activity—e.g., BAE’s tolerance of
racially derogatory language in the workplace—constituted an unlawful employment practice
under Title VII. Plaintiffs have therefore made a prima facie showing that Johnson and
Whitley engaged in protected activity under the opposition clause.
- 45 -
C
The court next considers whether plaintiffs have made a prima facie showing of a
causal connection between Johnson’s September 2010 complaints and his April 2011
termination, and Whitley’s 2009 complaints and his April 2011 termination.
The standard for satisfying the causation element at the prima facie stage is “much
less stringent” than the “but for” causation that a jury must find. Montemayor v. City of San
Antonio, 276 F.3d 687, 692 (5th Cir. 2001); see also Khanna v. Park Place Motorcars of
Hous., Ltd., 2000 WL 1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.) (characterizing
prima facie burden as “minimal”). An employee “must produce at least some evidence that
the decisionmakers had knowledge of his protected activity.” Manning v. Chevron Chem.
Co., 332 F.3d 874, 883 n.6 (5th Cir. 2003). “Close timing between an employee’s protected
activity and an adverse action against him may provide the ‘causal connection’ required to
make out a prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180,
1188 (5th Cir. 1997) (quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)).
BAE argues that plaintiffs have failed to produce sufficient evidence of a causal
connection. In response, plaintiffs present three types of evidence. First, plaintiffs rely on
the temporal proximity between the protected activity and the adverse employment action.
Johnson’s complaints occurred in September 2010. He was terminated in April 2011,
approximately six to seven months after engaging in the protected activity. Whitley’s
complaints occurred even earlier, sometime in 2009, and he was also terminated in April
2011—approximately two years after he made the complaints. Standing alone, the six- or
- 46 -
seven-month period likely would not be sufficient evidence from which to infer a causal
connection,14 and the two-year period definitely would not be sufficient. But as discussed
below, it is not the only evidence that plaintiffs present in support of this element.
Second, plaintiffs rely on a series of remarks allegedly made by Clarkson and
Atherholt in response to several of Whitley’s complaints, and Clarkson’s and Atherholt’s
“apparent disregard” of the complaints. Ps. Br. 46. For example, plaintiffs have produced
evidence that, when Whitley complained to Clarkson about Swoda’s use of racially
derogatory language, Clarkson ignored his complaints and simply “smiled and walk[ed]
away.” D. App. 607. Although this evidence, standing alone, likely would not be sufficient
evidence from which to infer a causal connection, it is not the only evidence that plaintiffs
present in support of this element.
Third, plaintiffs rely on “Clarkson’s own racial hostility,” Ps. Br. 46, and they refer
to the evidence discussed above that BAE’s stated legitimate, nondiscriminatory reason for
plaintiffs’ terminations is pretextual. Because the court has concluded that a reasonable trier
of fact could find based on this evidence that the RIF is pretextual, plaintiffs have satisfied
the “less stringent” causation requirement of the prima facie case as to Johnson and Whitley.
14
Although there is no bright line rule for determining when the temporal proximity
between the protected activity and the adverse employment action is close enough to
establish a causal connection, the Supreme Court has stated that it must be “very close.”
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation and internal quotation
marks omitted). The Fifth Circuit “has found, for example, that . . . a five month lapse is not
close enough without other evidence of retaliation.” Feist v. La. Dep’t of Justice, Office of
the Attorney Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing Raggs v. Miss. Power & Light
Co., 278 F.3d 463, 472 (5th Cir. 2002)).
- 47 -
Thus the court holds that plaintiffs have made a prima facie showing of a causal
connection between Johnson’s September 2010 complaints and his April 2011 termination,
and Whitley’s 2009 complaints and his April 2011 termination. They have therefore satisfied
all three elements of the prima facie case of retaliation as to Johnson and Whitley.
D
Because plaintiffs have established a prima facie case of retaliation as to Johnson and
Whitley, the burden shifts to BAE to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. As discussed above, BAE contends that the termination
occurred as part of a RIF that was necessitated by a decrease in demand for M9 ACE vehicle
work and a corresponding shift in demand for BAE’s support services. BAE has carried its
burden of production, so the burden shifts to plaintiffs to produce sufficient evidence to
create a genuine issue of material fact that BAE’s reason is pretextual. As discussed above,
plaintiffs have carried this burden because they have produced evidence from which a
reasonable trier of fact could find that the RIF is a pretext for discrimination against Johnson
and Whitley.
E
Accordingly, BAE’s motion for summary judgment as to plaintiffs’ retaliation claim
is granted in part and denied in part. It is granted as to the retaliation claim brought by
plaintiffs on behalf of Dominguez because they have failed to satisfy the first element of a
prima facie case. It is denied as to plaintiffs’ retaliation claim brought on behalf of Johnson
to the extent it is based on Johnson’s September 2010 email, his contemporaneous telephone
- 48 -
conversation with Clarkson, and his termination. It is granted as to all other allegations of
protected activity and adverse employment actions regarding Johnson. See supra note 9. It
is denied as to plaintiffs’ retaliation claim brought on behalf of Whitley to the extent it is
based on Whitley’s 2009 complaints about Trubee’s “whip” comment and Swoda’s use of
the phrase “dumb-ass Mexican.” It is granted as to all other allegations of protected activity
and adverse employment actions regarding Whitley. See id.
V
The court now considers BAE’s motion for summary judgment addressing plaintiffs’
request for punitive damages.
A
BAE contends that plaintiffs cannot establish that it acted with malice or reckless
disregard for plaintiffs’ right to be free from unlawful discrimination or retaliation, and that
it cannot be held vicariously liable for the discriminatory or retaliatory employment decisions
of managers when those decisions were contrary to BAE’s good faith efforts to comply with
the law. Plaintiffs respond that they have produced evidence that BAE, through its agents,
acted with malice or reckless indifference to their federally protected rights.
“A Title VII plaintiff may recover punitive damages upon proof that the defendant
acted ‘with malice or with reckless indifference to the federally protected rights of an
aggrieved individual.’” EEOC v. Boh Bros. Const. Co., 731 F.3d 444, 467 (5th Cir. 2013)
(en banc) (quoting 42 U.S.C. § 1981a(b)(1)). “This is a higher standard than the showing
necessary for compensatory damages, satisfied in ‘only a subset of cases involving
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intentional discrimination.’” Id. (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534
(1999)). “Thus, ‘not every sufficient proof of pretext and discrimination is sufficient proof
of malice or reckless indifference.’” Id. (quoting Hardin v. Caterpillar, Inc., 227 F.3d 268,
270 (5th Cir. 2000)). “Moreover, even if particular agents acted with malice or reckless
indifference, an employer may avoid vicarious punitive damages liability if it can show that
it made good-faith efforts to comply with Title VII.” Id. (citing Kolstad, 527 U.S. at 545-46).
B
The court denies BAE’s motion for summary judgment in this respect. BAE’s
contention relies principally on its assertion that the undisputed evidence “shows that it
undertook good faith efforts to comply with Title VII.” D. Br. 49. But there are material fact
issues that preclude summary judgment on this basis because there is evidence that BAE did
not follow the nondiscrimination policy it had in place, and that members of HR subjectively
perceived that the RIF violated federal law because it would have a disparate impact on
minority employees. See Boh Bros., 731 F.3d at 468 (noting that relevant standard is whether
employer discriminates in the face of “perceived risk” that its actions will violate federal
law). The court concludes that this issue involves factual components that must be resolved
at trial.15
15
See supra note 7. “When this court denies rather than grants summary judgment,
it typically does not set out in detail the evidence that creates a genuine issue of material
fact.” Valcho, 658 F.Supp.2d at 812 n.8.
- 50 -
VI
The court next considers BAE’s Daubert-type motions:16 to strike the expert testimony
of Dr. John Michael (“Dr. Michael”), and to strike the expert testimony of Dr. Ricardo
Ainslie (“Dr. Ainslie”).
“The court decides these motions in its role as gatekeeper under Fed. R. Evid. 702.”
SEC v. Cuban, 2013 WL 3809654, at *1 (N.D. Tex. July 23, 2013) (Fitzwater, C.J.) (citing
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)) (citation omitted). “The court
may admit proffered expert testimony only if the proponent, who bears the burden of proof,
demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3)
the evidence is reliable.” Nunn v. State Farm Mut. Auto. Ins. Co., 2010 WL 2540754, at *2
(N.D. Tex. June 22, 2010) (Fitzwater, C.J.) (citing Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999)).
The first requirement is that the expert be qualified. “Before a district court may
allow a witness to testify as an expert, it must be assured that the proffered witness is
qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’”
United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Rule 702). “A district
court should refuse to allow an expert witness to testify if it finds that the witness is not
qualified to testify in a particular field or on a given subject.” Id. (citing Wilson v. Woods,
163 F.3d 935, 937 (5th Cir. 1999)). “Rule 702 does not mandate that an expert be highly
16
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
- 51 -
qualified in order to testify about a given issue. Differences in expertise bear chiefly on the
weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citation omitted).
The second requirement is that the expert’s testimony be relevant. To be relevant,
“expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine
a fact in issue.’” Pipitone, 288 F.3d at 245 (quoting Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 591 (1993)). “Relevance depends upon ‘whether [the expert’s] reasoning or
methodology properly can be applied to the facts in issue.’” Knight v. Kirby Inland Marine
Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 593); see also Rule
702(d) (requiring that “expert has reliably applied the principles and methods to the facts of
the case”).
The third requirement is that the expert’s testimony be reliable. “Reliability is
determined by assessing ‘whether the reasoning or methodology underlying the testimony
is scientifically valid.’” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-93); see
also Rule 702(c) (requiring that “testimony [be] the product of reliable principles and
methods”). Expert testimony “must constitute ‘more than subjective belief or unsupported
speculation.’” Nunn, 2010 WL 2540754, at *2 (quoting Daubert, 509 U.S. at 590). The
court focuses on the expert’s methodology, not the conclusions generated by it. Id. at *4
(citing Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997)). If, however, “there is
simply too great an analytical gap between the [basis for the expert opinion] and the opinion
proffered,” the court may exclude the testimony as unreliable. Gen. Elec. Co. v. Joiner, 522
- 52 -
U.S. 136, 146 (1997); see also Johnson v. Arkema, Inc., 685 F.3d 452, 460-61 (5th Cir.
2012); Moore v. Ashland Chem. Inc., 151 F.3d 269, 278-79 (5th Cir. 1998). This review is
usually conducted by considering the five nonexclusive Daubert factors.17 But these factors
“may or may not be pertinent in assessing reliability, depending on the nature of the issue,
the expert’s particular expertise, and the subject of [the] testimony.” Kumho, 526 U.S. at
150.
The burden is on the proponent of the expert testimony to establish its admissibility
by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10; see also Johnson,
685 F.3d at 459. The court’s inquiry is flexible in that “[t]he relevance and reliability of
expert testimony turns upon its nature and the purpose for which its proponent offers it.”
United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citation omitted). “As a
general rule, questions relating to the bases and sources of an expert’s opinion affect the
weight to be assigned that opinion rather than its admissibility and should be left for the [trier
of fact’s] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596; Nunn, 2010 WL 2540754, at *5.
17
The five nonexclusive Daubert factors are: (1) whether the expert’s technique can
be or has been tested; (2) whether the method has been subjected to peer review and
publication; (3) the known or potential rate of error of a technique or theory when applied;
(4) the existence and maintenance of standards and controls; and (5) the degree to which the
technique or theory has been generally accepted in the scientific community. Daubert, 509
U.S. at 593-94.
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VII
The court turns first to BAE’s motion to strike the testimony of Dr. Michael.
A
Plaintiffs intend to call Dr. Michael to offer several opinions about the statistical
significance of BAE’s RIF with respect to “persons of color,” and the alleged redundancy
and subjectivity of the RIF spreadsheet’s performance-rating criteria.18 Pertinent to this
motion, Dr. Michael opines that “[t]he percentage of Persons of Color involuntarily
terminated (83%) is significantly greater than that for Other Persons (4%). This difference
is highly statistically significant, and cannot be explained by chance alone.”19 D. 10/5/2013
App. 2 (the “statistical significance opinion”). He also opines that “[i]f the weighting scheme
[were] equal and retrospective, the average scores for Persons of Color compared to that of
Others is not statistically different.” Id. (underlining omitted) (the “weighting opinion”).
Finally, he opines that “[t]he two factors, (Total Skill Sets & Competencies), and
18
In their response, plaintiffs explicitly state that they do not intend to offer Dr.
Michael’s opinion that the weighting scheme used by BAE is “unusual” and “appears to be
calculated to disadvantage persons of color,” and whether the performance measures were
tainted by discriminatory animus. See Ps. 1/30/2014 Resp. 1. The court denies as moot
BAE’s motion to strike Dr. Michael’s testimony as to these opinions and does not reach
BAE’s arguments concerning them. Should plaintiffs attempt to offer either opinion at trial,
BAE may object.
19
In his deposition, Dr. Michael testified that the 83% figure is an error, and that the
correct figure is 71%. He also testified that he based his opinion on the 71% figure. See D.
10/5/2013 App. 33. In their response, plaintiffs argue that because DeShong was never
terminated, only six plaintiffs were terminated (not seven), and the 83% figure is therefore
the correct one. The court notes that nothing in this opinion hinges on the difference between
these two figures. At trial the parties will have the opportunity to address this dispute.
- 54 -
(Professionalism, Ethical Conduct, Results Oriented), have definitions that are ambiguous,
poorly defined, esoteric, and substantially subsumed by the criteria in another factor:
Performance and Outcome Total, thereby rendering these two factors redundant.” Id. (the
“defective factor opinion”).
BAE contends on the following grounds that Dr. Michael’s statistical significance
opinion is unreliable: (1) it is based on a sample size that is too small, (2) his analysis does
not control for other possible causal factors, and (3) his methodology has not been subject
to testing, peer review, publication, or a rate-of-error analysis, and it has not gained general
acceptance. BAE argues that Dr. Michael’s weighting opinion is confusing, irrelevant, and
unhelpful to the trier of fact. And BAE maintains that his defective factor opinion is not
based on sufficient facts or data and does not help the trier of fact understand the evidence
or determine a fact in issue.20 Plaintiffs oppose the motion.
B
The court first considers BAE’s motion as to Dr. Michael’s statistical significance
opinion. BAE argues, first, that this opinion is unreliable because it is based on a sample size
20
In its motion, BAE makes the conclusory assertion that Dr. Michael “lacks proper
qualification to testify as an expert.” D. 10/5/2013 Mot. 1. But in its brief, BAE does not
advance any argument about Dr. Michael’s qualifications. In fact, BAE concedes in its reply
that it “does not take issue with [Dr.] Michael’s qualifications as a statistician.” D. 2/13/2014
Reply Br. 3. It is undisputed that Dr. Michael has a Ph.D. in Statistical Science from
Southern Methodist University and a Ph.D. in Industrial-Organizational Psychology from
The George Washington University. It is also undisputed that he has served as an expert in
over 100 cases and has provided expert testimony in 34 of those cases, assisting attorneys for
plaintiffs and defendants in approximately equal numbers. Accordingly, the court finds no
basis in the record to question Dr. Michael’s qualifications.
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that is too small (32 individuals, which comprised the group of FSRs and Sr. FSRs who were
considered in the RIF) to yield reliable statistical conclusions. “Whether a sample is too
small . . . is a determination made by the district court on a case-by-case basis.” Anderson
v. Douglas & Lomason Co., 26 F.3d 1277, 1289 n.20 (5th Cir. 1994) (citing Watson v. Ft.
Worth Bank & Trust, 487 U.S. 977, 995 n.13 (1988); Rendon v. AT&T Techs., 883 F.2d 388,
397 (5th Cir. 1989)). BAE focuses on the size of the sample but does not address Dr.
Michael’s actual methodology, which is designed to mitigate the problems posed by
analyzing small samples. In fact, Dr. Michael’s analysis is based on a Fisher’s Exact Test,
which “is an accepted methodology in discrimination cases.” Perez v. Pavex Corp., 510
F.Supp.2d 755, 762 (M.D. Fla. 2007); see also Matthews v. Waukesha County, 937
F.Supp.2d 975, 986 (E.D. Wis. 2013) (noting that Fisher’s Exact Test is a “well known
small-sample technique” (alteration, citations, and internal quotation marks omitted));
Currier v. United Techs. Corp., 326 F.Supp.2d 145, 154-56 (D. Me. 2004) (admitting
statistical analysis in RIF case where expert looked at effect that RIF had on defendant’s
workforce using Fisher’s Exact Test); Reference Manual on Scientific Evidence 255 n.108
(3d ed. 2011) (noting that Fisher’s Exact Test is “[w]ell-known small-sample technique”).
Because BAE does not challenge the accuracy of the underlying data, nor does it argue that
Fisher’s Exact Test is an unreliable methodology as applied to these facts, the court declines
to strike Dr. Michael’s statistical significance opinion on the ground that the underlying
sample size is too small.
BAE also contends that this opinion is unreliable because Dr. Michael’s analysis does
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not control for other possible causal factors. In support, BAE relies on a line of cases that
explains the general principle that correlation does not imply causation. See, e.g., Valencia,
600 F.3d at 425 (“Evidence of mere correlation, even a strong correlation, is often spurious
and misleading when masqueraded as causal evidence, because it does not adequately
account for other contributory variables.”). This principle is inapposite here, because Dr.
Michael is not attempting to opine that the statistical data prove causation. Rather, he
acknowledges in his expert report that “one cannot prove cause and effect with the analyses
of observational data such as these,” and explains that the statistical analysis supports the
conclusion that chance alone does not explain the results of the RIF. See D. 10/5/2013 App.
3. “[W]here evidence of correlation itself is potentially relevant and unlikely to mislead the
[trier of fact], an expert who reliably discerns this relationship can present such conclusions
to the [trier of fact].” Valencia, 600 F.3d at 425. Here, Dr. Michael’s statistical evidence is
relevant and unlikely to mislead the trier of fact because he acknowledges the shortcomings
of relying on observational data to prove causation and does not attempt to present this
evidence as causal evidence that BAE discriminated against plaintiffs. Accordingly, the
court declines to strike Dr. Michael’s statistical significance opinion on the ground that his
analysis does not control for other causal factors.
BAE argues next that Dr. Michael’s opinion is unreliable because it is based on a
methodology that has not been subject to testing, peer review, publication, or a rate-of-error
analysis, and because it has not gained general acceptance. Other than its conclusory
assertion to the contrary, BAE does not identify any specific problem with Dr. Michael’s
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methodology, and, as discussed above, Fisher’s Exact Test is generally recognized by courts
and statisticians as a reliable method of measuring probabilities when dealing with small
samples. The test has, in fact, been subject to testing, peer review, and publication, and it has
gained general acceptance in the academic community. The court therefore declines to strike
Dr. Michael’s statistical significance opinion on the ground that it is based on a methodology
that has not been tested, reviewed, or generally accepted.
BAE argues next that Dr. Michael’s opinion is irrelevant because it does not analyze
a single, discrete employment practice taken by BAE. This argument lacks force. The RIF,
which culminated in plaintiffs’ terminations, is in fact a single, discrete employment practice.
Moreover, Dr. Michael’s analysis of the spreadsheet used to justify BAE’s decision to
terminate certain employees is relevant because it provides evidence to establish plaintiffs’
prima facie case. BAE’s reliance on disparate impact cases, such as Bannister v. Dal-Tile
Int’l, Inc., 2003 WL 21145739, at *2 (N.D. Tex. May 14, 2003) (Fish, C.J.), is misplaced
because those cases apply a different standard, and plaintiffs’ claim is not predicated on a
disparate impact theory.21 See 42 U.S.C. § 2000e-2(k); see also, e.g., Mayberry v. Mundy
21
In their response to BAE’s motion to strike, plaintiffs appear to suggest that they
should be entitled to pursue a disparate impact claim as well as a disparate treatment claim.
The court disagrees. Plaintiffs did not plead such a claim in substance and, in fact, their
second amended complaint does not even mention the words “disparate” or “impact.” See,
e.g., Gambill v. Duke Energy Corp., 456 Fed. Appx. 578, 587 (6th Cir. 2012) (noting that
complaint did not plead disparate impact theory and even lacked the words “disparate” or
“impact”). Plaintiffs’ response to summary judgment reinforces this conclusion, because it
sets forth the elements of a prima facie case of intentional discrimination in a RIF case and
posits that BAE’s proffered legitimate, nondiscriminatory reason for plaintiffs’ terminations
is pretextual. See Ps. Br. 39-45, 48-50. It does not address the elements of a prima facie case
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Contract Maint. Inc., 197 Fed. Appx. 314, 316-17 (5th Cir. 2006) (per curiam) (setting forth
elements of prima facie case of disparate impact discrimination).
Finally, BAE contends in its reply brief that Dr. Michael’s opinion is unreliable
because it is predicated on arbitrary racial classifications. Specifically, it posits that there is
no principled basis for including African-Americans and Hispanics in one
category—“persons of color”—and Caucasians and Asian-Americans in another
category—“other.” BAE did not present this argument in its opening brief. The court will
not consider arguments first raised in a reply brief. See, e.g., Conceal City, L.L.C. v. Looper
Law Enforcement, LLC, 917 F.Supp.2d 611, 623 (N.D. Tex. 2013) (Fitzwater, C.J.). This
would effectively deny plaintiffs a fair opportunity to respond. See, e.g., id. The court
therefore declines to strike Dr. Michael’s opinion on this basis.22
C
The court next turns to Dr. Michael’s weighting opinion. BAE contends that this
opinion is confusing, irrelevant, and unhelpful to the trier of fact because it is merely Dr.
Michael’s second-guessing a business’s legitimate decision to evaluate performance in a
certain way. The court disagrees. BAE explains that it weights certain scores in the RIF
spreadsheet in this manner:
of disparate impact discrimination. Accordingly, the court concludes that Dr. Michael’s
statistical significance opinion is relevant to plaintiffs’ prima facie case of intentional
discrimination.
22
BAE may, however, raise this objection at trial.
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BAE uses a progressively weighted RIF model to determine an
overall ranking score for each employee. The model is designed
to give more emphasis to recent scores than to older scores. In
the 2011 RIF at issue, each employee’s performance score for
2008 accounted for 1/6 of the total score, 2009 accounted for 1/3
of the total score, and 2010 accounted for 1/2 of the total score.
D. 10/5/2013 Br. 8. Dr. Michael opines that, if this scheme were removed and each year’s
performance rating received the same relative weight, the difference in average scores
between individuals in the “persons of color” category would not be statistically different
from those for individuals in the “other” category. That BAE, as an employer, uses a
weighting scheme that values recent performance higher than less recent performance is not
of itself evidence of discrimination. But under the facts and circumstances of this case,
where plaintiffs’ theory is that Clarkson replaced Joyce in 2010 and had input during the
spreadsheet revision process, Dr. Michael’s testimony is relevant because it is proof that the
values for which Clarkson had input (the 2010 performance scores) had the greatest effect
on plaintiffs’ overall performance ratings, and that, without the weighting scheme in place,
there would have been no statistically significant differences between certain groups of
employees considered for termination. At least for this purpose, Dr. Michael’s opinion is
relevant and based on a reliable methodology. See Valencia, 600 F.3d at 424 (noting that the
relevance and reliability of expert testimony depends on purpose for which it is offered); see
also Tex. Instruments, 100 F.3d at 1185-86 (collecting cases and explaining that statistical
evidence may be probative of pretext in limited circumstances, and that such a determination
“ultimately depends on all the surrounding facts, circumstances, and other evidence of
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discrimination”). Accordingly, the court declines to strike Dr. Michael’s weighting opinion
on the ground that it is confusing, irrelevant, and unhelpful to the trier of fact.
D
The court now considers BAE’s motion as to Dr. Michael’s defective factor opinion.
BAE argues that this opinion is irrelevant and does not help the trier of fact understand the
evidence or determine a fact in issue because the fact that BAE’s rating criteria were
ambiguous or poorly defined is not probative of an intent to discriminate. The court
disagrees. Evidence that criteria on the RIF spreadsheet were ambiguous, poorly defined,
and redundant with other criteria is circumstantial evidence under the facts and circumstances
of this case that BAE’s proffered legitimate, nondiscriminatory reason is pretextual. This is
because it suggests that the decisionmaker for the RIF—Briggs, working in conjunction with
Clarkson and Atherholt—designed the criteria to serve as a facially neutral post hoc
justification for terminating plaintiffs. Contrary to BAE’s suggestion, plaintiffs do not offer
Dr. Michael merely to testify that he would have designed the spreadsheet differently.
Rather, plaintiffs offer Dr. Michael to testify that, based on a statistical analysis of the
criteria, two factors are largely redundant and do not appear tied to any objectively
measurable criteria.23 This opinion is relevant because it could help the trier of fact
23
BAE’s reliance on Chin v. Port Authority of New York & New Jersey, 685 F.3d 135
(2d Cir. 2012), is misplaced. In Chin the Second Circuit held that the district court did not
abuse its discretion when it excluded testimony from an expert who relied on a cursory
analysis of plaintiffs’ qualifications by “summ[ing] up their qualifications in a few
sentences” and then comparing each plaintiff to employees who had been promoted. See id.
at 161. Here, by contrast, Dr. Michael is not comparing plaintiffs’ relative qualifications, and
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understand the relationship between different factors on the RIF spreadsheet and determine
whether BAE’s stated reason for using such criteria as part of the decisionmaking process
is pretextual. Accordingly, the court declines to strike Dr. Michael’s defective factor opinion
on the ground that it is irrelevant.
E
Because the court concludes that Dr. Michael’s statistical significance, weighting, and
defective factor opinions are relevant and reliable, and that he is qualified to render them, the
court denies BAE’s motion to exclude Dr. Michael’s testimony as to these opinions. The
court denies as moot the remainder of BAE’s motion to exclude Dr. Michael’s testimony.
VIII
The court next considers BAE’s motion to strike the expert testimony of Dr. Ainslie.
A
Plaintiffs offer Dr. Ainslie, a clinical psychologist, to testify about plaintiffs’ claims
of mental anguish and emotional distress as a result of their terminations. Dr. Ainslie is
expected to testify that plaintiffs have experienced “clinical levels of depression” and
“moderate to severe levels of anxiety,” and that their terminations may have been a
contributing factor to these conditions. D. 10/4/2013 App. 21. BAE moves to strike this
his analysis is more sophisticated. Dr. Michael calculated the correlation between two sets
of variables that were created by BAE (not by him), and he determined that a high degree of
correlation between these sets of variables provided support for the view that the criteria
were redundant and poorly defined. BAE does not address this aspect of his analysis, and
thus presents no reason that Dr. Michael’s underlying methodology is unreliable.
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testimony in its entirety on the ground that Dr. Ainslie is not qualified to offer an opinion
about mental anguish damages, and that his testimony is based on an unreliable methodology.
Alternatively, BAE moves to strike certain aspects of Dr. Ainslie’s proffered testimony. It
argues that Dr. Ainslie should be precluded from offering the following: (1) the opinion that
race discrimination caused or contributed to plaintiffs’ emotional distress, (2) any opinion
about whether there were “statistical racial disparities” at BAE, (3) the opinion that plaintiffs
had reliable memories, (4) any opinion that mentions a second-hand account of race-related
conduct by plaintiffs, and (5) the opinion that plaintiffs were truthful to him during their
interviews and were not malingering. Plaintiffs oppose the motion.
B
The court first considers whether Dr. Ainslie is qualified to offer expert testimony
concerning plaintiffs’ claims for mental anguish and emotional distress damages. BAE
argues that Dr. Ainslie is not so qualified because he has a relatively small clinical practice
(only seeing between ten and twelve patients a year), his specialty is hate crimes and
community race relations, not employment discrimination, and he has never served as an
expert witness in an employment discrimination lawsuit.
The court begins by clarifying the purpose for which plaintiffs offer Dr. Ainslie’s
testimony. Contrary to BAE’s suggestion, plaintiffs do not intend that Dr. Ainslie offer an
opinion about the amount of damages plaintiffs seek, nor do they offer him to testify that
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plaintiffs’ psychological condition caused a physical disease.24 Rather, plaintiffs offer Dr.
Ainslie to testify about his diagnostic impressions of each plaintiff and to opine whether the
plaintiff’s termination had any impact on his emotional health. The Fifth Circuit has
expressly approved of this sort of psychological expert testimony when it is offered to
corroborate a plaintiff’s claim for emotional distress damages. See Brady v. Fort Bend
County, 145 F.3d 691, 718 (5th Cir. 1998) (approving psychological testimony offered as
corroborating evidence in support of plaintiffs’ claim for mental anguish damages).
Furthermore, Dr. Ainslie is qualified to offer diagnostic impressions about what
impact, if any, plaintiffs’ terminations had on their emotional health. He holds a Ph.D. in
Clinical Psychology from the University of Michigan, is a tenured professor at the University
of Texas at Austin, has maintained an active clinical practice for 30 years, and regularly
presents his research at national professional conferences.25 BAE relies on a line of cases
affirming the general principle that an expert’s qualifications in one field do not necessarily
24
For this reason, Edmonds v. Illinois Central Gulf Railroad Co., 910 F.2d 1284 (5th
Cir. 1990), which BAE cites, is inapposite. In Edmonds a clinical psychologist opined that
there was a causal link between the plaintiff’s psychological condition (stress) and his preexisting heart condition. Edmonds, 910 F.2d at 1286-87. The Fifth Circuit held that
admitting this testimony was error because the expert’s qualifications as a psychological
expert did not qualify him as an expert on physical conditions, such as heart disease, since
the expert had no experience making medical diagnoses of this sort and did not perform any
medical tests on the plaintiff. Id. at 1287.
25
Additionally, Dr. Ainslie’s lack of previous experience as an expert witness does not
make him unqualified. See, e.g., Nunn, 2010 WL 2540754, at *3 n.4. “[A proposed expert’s]
lack of experience as an expert witness is no bar to his testimony. An expert witness must
be an expert in a given field, not an experienced witness.” Rolls-Royce Corp. v. HEROS,
Inc., 2010 WL 184313, at *5 (N.D. Tex. Jan. 14, 2010) (Fitzwater, C.J.).
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make the expert qualified to testify about subject matter in another field. See, e.g., Amos v.
Rent-A-Ctr., Inc., 2001 WL 36095915, at *2 (S.D. Fla. Dec. 13, 2001) (noting that
neuropsychologist specializing in closed-head brain injuries only “marginally qualified” to
testify about emotional health in employment discrimination case). This principle is
inapposite here because Dr. Ainslie is a clinical psychologist, he maintains an active clinical
practice, and he is offered to opine about his diagnostic impressions of each plaintiff. Thus
the court concludes that Dr. Ainslie is qualified to offer the opinions contained in his expert
report.
C
The court next considers whether Dr. Ainslie’s testimony is based on a reliable
methodology. BAE provides a laundry list of short, underdeveloped reasons for concluding
that Dr. Ainslie’s testimony is unreliable: Dr. Ainslie has not explained why he excluded
other causal explanations for plaintiffs’ condition, his analysis is based on a short 90-minute
interview with each plaintiff, and the methodology he applied is subjective and not subject
to testing or peer review. Yet BAE fails to address the principles and methods that Dr.
Ainslie used to analyze each plaintiff. In his expert report, Dr. Ainslie makes clear that he
administered several well-established psychological tests, including the Beck Depression
Inventory II, the Beck Anxiety Inventory, and the Achenbach System of Empirically Based
Assessment/Adult Self Report.26 See, e.g., Reference Manual on Scientific Evidence 836 &
26
For this reason, Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000), which BAE
cites, is distinguishable. In Elcock the court held that several Daubert factors supported the
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n.123 (3d ed. 2011) (noting that formal testing of psychological functions may be used to
complement the clinical diagnostic process and specifically noting that the Beck Depression
Inventory is commonly used to measure severity of symptoms). And, in addition to meeting
with each plaintiff individually, he reviewed each plaintiff’s medical records and deposition
testimony. Because the principles and methods that underpin Dr. Ainslie’s evaluation are
reliable, the court declines to strike his testimony on this basis.
D
The court now turns to BAE’s contention that Dr. Ainslie should be precluded from
offering the opinion that race discrimination caused or contributed to plaintiffs’ emotional
distress. In support of its position, BAE relies on Patterson v. P.H.P. Healthcare Corp., 90
F.3d 927 (5th Cir. 1996), overruled on other grounds by Williams v. Wal-Mart Stores, Inc.,
182 F.3d 333 (5th Cir. 1999) (en banc) (per curiam). In Patterson the Fifth Circuit vacated
the district court’s emotional damage award and held that the plaintiff was only entitled to
nominal damages. Id. at 941. The panel explained that, although the plaintiff testified that
she suffered mental anguish during her unemployment, she failed to offer competent
conclusion that the expert’s testimony was inadmissible, where the expert—with no formal
training in vocational rehabilitation—opined that the plaintiff was “between 50 and 60
percent vocationally disabled.” Id. at 740, 743. On cross-examination at trial, he failed to
explain his method for arriving at the 50-60% figure and could not present any objective
evidence to support his conclusion. Id. at 747-48. Here, by contrast, Dr. Ainslie has formal
training in the underlying subject matter, has not attempted to offer a precise figure for the
degree to which plaintiffs’ terminations or perceptions that they were discriminated against
contributed to their psychological conditions, and has presented objective evidence to support
his conclusions.
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evidence corroborating her testimony. Id. In particular, the panel noted that the plaintiff had
failed to offer any “expert medical or psychological evidence . . . to support [her] claim for
emotional harm.” Id.
Contrary to BAE’s position, Patterson actually supports the admission of Dr. Ainslie’s
testimony because it underscores the necessity that a Title VII plaintiff present corroborating
evidence, such as expert testimony from a psychologist, to support a claim for emotional
distress or mental anguish damages. This is precisely the reason for which plaintiffs offer
Dr. Ainslie’s expert testimony.
In its reply, BAE acknowledges for the first time that Dr. Ainslie’s testimony is based
on objective psychological examinations, see D. 11/7/2013 Reply Br. 4, but it argues that
these examinations only test the severity of plaintiffs’ symptoms, not their cause. This
challenge, however, goes to the weight of the testimony, and it can be attacked through
vigorous cross-examination and the presentation of contrary evidence. For example, Dr.
Ainslie testified by deposition that “for each of these individuals, there are probably multiple
sources for what they’re dealing with,” D. 10/4/2013 App. 35, and that he could not
determine exactly the degree to which the perception of race discrimination contributed to
their psychological conditions when compared to other stressors, id. at 62. BAE can
demonstrate through cross-examination and its own evidence that there are other possible
causes for plaintiffs’ emotional problems, and that Dr. Ainslie cannot rule out these other
explanations or quantify the impact that BAE’s conduct had on their psychological
conditions.
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Accordingly, the court declines to strike this portion of Dr. Ainslie’s testimony.
E
The court next considers whether Dr. Ainslie should be precluded from offering any
opinion about whether there were “statistical racial disparities” at BAE. BAE contends that
Dr. Ainslie attempts to “buttress” his conclusion about race discrimination’s being a likely
cause of emotional distress by referencing some “crude statistics”—that BAE’s minority FSR
force dropped from 21% to 8% as a result of the RIF. D. 10/4/2013 Br. 13. BAE does not
argue that this statistic is incorrect. Instead, it asserts that it is “meaningless, unfairly
prejudicial[,] and . . . far afield from [Dr. Ainslie’s] expertise in psychology.” Id. The court
disagrees with BAE’s characterization of Dr. Ainslie’s testimony. When read in context, Dr.
Ainslie’s opinion is merely that plaintiffs perceived that their terminations were motivated
by racism because they realized that minorities were disproportionately affected by the RIF.
Dr. Ainslie’s expert report cites studies suggesting that individuals who perceive themselves
as victims of racism often experience psychological distress. Based on Dr. Ainslie’s expert
report and his deposition testimony, it is clear that he is not attempting to offer any statistical
evidence to support plaintiffs’ race discrimination claim. Rather, he is merely offering
psychological testimony (coupled with simple arithmetic) about the impact that plaintiffs’
perception (true or not) that their terminations were racially motivated had on their emotional
well-being. Accordingly, the court declines to strike this portion of Dr. Ainslie’s testimony.
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F
The court now turns to BAE’s contention that Dr. Ainslie should be precluded from
offering the opinion that plaintiffs had reliable memories. In his report, Dr. Ainslie notes that
each plaintiff’s “memory was intact” and that each plaintiff “appeared to have good
judgment” at the time of the psychological assessment. D. 10/4/2013 App. 11-12. BAE
moves to strike this testimony on the ground that it is unreliable because Dr. Ainslie did not
perform any scientific tests of plaintiffs’ memories. Given the limited nature of Dr. Ainslie’s
testimony on the subject, the court declines to strike this opinion on this ground. When read
in context, it is clear that Dr. Ainslie’s testimony regarding each plaintiff’s memory and
judgment is merely offered to establish the foundation for Dr. Ainslie to testify about his
diagnostic impressions. Evaluating a patient’s memory and judgment is a routine part of this
type of psychological assessment. That Dr. Ainslie did not perform any specific test of
plaintiffs’ memories relates to the basis of his expert opinion, and, as such, affects the weight
to be assigned that opinion rather that its admissibility. BAE will have the opportunity to
challenge this testimony on cross-examination.
G
The court next considers whether Dr. Ainslie should be precluded from offering any
opinion that mentions a second-hand account of race-related conduct by plaintiffs. Dr.
Ainslie’s expert report recounts several instances in which individual plaintiffs recounted
race-related events from their tenure at BAE. For example, Whitley reported to Dr. Ainslie
that he overheard Clarkson tell Swoda, “When I get rid of some of these [ni---rs][,] I’ll make
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you an FSR.” Id. at 7. BAE argues that this testimony should be stricken because the
underlying reports of race-related conduct are either “untruthful” or “constitute speculative
hearsay.” D. 10/4/2013 Br. 14. The court disagrees. This testimony is not hearsay because
it is not being offered to prove the truth of the matter asserted. See Rule 801(c). Plaintiffs
are not offering this testimony to prove that the underlying events occurred; rather, they are
offering it to prove that plaintiffs described the events to Dr. Ainslie. And Dr. Ainslie relied
on this evidence in reaching his ultimate opinion about plaintiffs’ emotional health. Under
Rule 703,
[a]n expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.
Rule 703.27 As a result, provided the predicate under Rule 703 is satisfied, Dr. Ainslie can
rely on plaintiffs’ second-hand accounts of race-related conduct for purposes of expressing
an expert opinion.28 As such, the court declines to strike Dr. Ainslie’s testimony on this
27
Rule 703 also includes a balancing test if the facts or data would otherwise be
inadmissible: “But if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury only if their probative value in helping the jury
evaluate the opinion substantially outweighs their prejudicial effect.”
28
BAE argues that Whitley denied making at least two of the statements that Dr.
Ainslie attributes to Whitley (that Whitley told him that Clarkson had been disciplined during
his military service for using racially derogatory language, and that Whitley complained of
discrimination while at BAE). Whether Whitley denied making these statements at his
deposition is immaterial, because Dr. Ainslie’s testimony is not being offered to prove that
the underlying events occurred. To the extent there are inconsistencies between Dr. Ainslie’s
testimony about what Whitley told him during his psychological examination and Whitley’s
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basis.
H
Finally, the court turns to BAE’s contention that Dr. Ainslie should be precluded from
offering the opinion that plaintiffs were truthful to him during their interviews and were not
malingering. In his expert report, Dr. Ainslie states, in pertinent part:
With so much at stake, it is important to address the reliability
of the plaintiff[s’] claims in this case. Given the circumstances,
it is understandable if the reader of this report has some
skepticism of [their] claims, given what each plaintiff stands to
gain. Considering the potential outcome of this case, it is
important to stay up-to-date of the latest information that is
available on malingering, otherwise known as “faking-bad” for
the purposes of providing the courts with the most reliable and
valid data in forensic cases. I have used experience in both
research and clinical work to conduct sound evaluations for this
forensic purpose. Considering the research and comparing that
with the clinical interviews and assessment results the plaintiffs
completed, it is highly unlikely that the plaintiffs were
attempting to deceive the examiner.
D. 10/4/2013 App. 20 (alterations added). BAE argues that this testimony is unreliable
because it is not based on any specific data or established criteria for evaluating whether
someone is malingering.
The court declines to strike this testimony on the ground that it is unreliable.
Although this isolated excerpt of Dr. Ainslie’s expert report is not based on specific data or
quantitative criteria, Dr. Ainslie clarified during his deposition that there was, in fact, a
reliable basis for the opinion:
testimony, they should be left for the trier of fact’s consideration.
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Dr. Ainslie: One of the ways in which people evaluate
whether a patient is being honest with you or
conveying things in a way . . . that adequately sort
of captures what happened, is . . . if there’s an
absence of specificity, for example, that might
make you suspect; if there are absolutely no gaps
in their memory, if it’s as if they’ve rehearsed
something, as if they have come in with a
preformulated set of data to present to you, that
may suggest . . . that they’re not being honest for
some reason or another.
*
Counsel:
*
*
So what did you compare—what research did you
compare with the clinical interviews and
assessment results?
Dr. Ainslie: Well, you know, that may not be written very
clearly. I did not take study X and lay it over the
transcript of the interview and say, aha, . . . we
have absolute concordance here . . . . It’s really
more based on the synthesis of material. You
know, one part of that material . . . is my
experience as a clinician, as having seen hundreds
of patients and interviewed people for all kinds of
issues and for all kinds of reasons. That’s one
source of data that goes into that synthesis. The
objective measures are another source of data.
And . . . these measures are also used in research.
Id. at 59 (alterations added, paragraph break omitted). When read in context, it is clear that
although Dr. Ainslie did not use a particular test for determining whether someone was
malingering, he based his opinion on a combination of factors: academic research, his clinical
experience, and each plaintiff’s results on the three well-established psychological tests
discussed above. This foundation provides a reliable basis on which to offer an opinion.
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Indeed, courts routinely admit expert testimony about whether a certain individual is
malingering when the testimony is based on sound academic research, clinical experience,
and results of similar tests. See, e.g., Panetti v. Stephens, 727 F.3d 398, 403 (5th Cir. 2013)
(noting that multiple experts evaluated plaintiff to determine likelihood of malingering);
United States v. Merriweather, 921 F.Supp.2d 1265, 1300 (N.D. Ala. 2013) (noting that court
was “impressed” with expert testimony from psychiatrist who testified that defendant was
malingering).
Moreover, it is important to focus on the relatively confined scope of the opinion. Dr.
Ainslie opines that “it is highly unlikely that the plaintiffs were attempting to deceive [him]”
during their examinations. D. 10/4/2013 App. 20. As far as the court can determine,
plaintiffs do not purport to offer this testimony for the broader purpose of establishing each
plaintiff’s credibility or truthfulness in general, or during their trial testimony. Rather,
plaintiffs seek to offer Dr. Ainslie’s opinion that his psychological assessment of each
plaintiff was not skewed by any plaintiff’s malingering, and that plaintiffs’ test results, as a
form of objective psychological evidence, corroborate their claim for mental anguish and
emotional distress damages.
The court notes that expert testimony about plaintiffs’ truthfulness or credibility could
theoretically cross the line into inadmissibility by, for example, invading the province of the
jury. See, e.g., Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 882-84 (8th Cir. 1998) (holding
that expert’s testimony impugning the “psychiatric credibility” of plaintiff was inadmissible
under Rules 403 and 702 because it was “thinly veiled comment on a witness’ credibility”).
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If Dr. Ainslie attempts at trial to offer materially different testimony from what the court is
considering here, BAE can object, and the court will consider whether the objection has merit
in the context of the proffered testimony. In no event will plaintiffs be permitted to offer Dr.
Ainslie’s testimony merely to bolster a plaintiff’s credibility as a witness at trial. See, e.g.,
Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005) (noting that expert witnesses
may not improperly bolster account given by fact witnesses).
In light of the opinion’s limited scope and the reliable basis on which it is predicated,
the court declines to strike this part of Dr. Ainslie’s expert opinions.
I
Because the court concludes that Dr. Ainslie is qualified to testify on the opinions he
has offered, and because these opinions are relevant and based on reliable principles and
methods, the court denies BAE’s motion to exclude Dr. Ainslie’s testimony.
IX
Finally, the court considers BAE’s motion for severance under Rule 21, or for separate
trials under Rule 42.
A
Rule 21 provides that a “court may . . . sever any claim against a party.” Fed. R. Civ.
P. 21. As the movant, BAE bears the burden in seeking severance under Rule 21. See, e.g.,
Paragon Office Servs., LLC v. UnitedHealthCare Ins. Co., 2012 WL 4442368, at *1 (N.D.
Tex. Sept. 26, 2012) (Fitzwater, C.J.). “The trial court has broad discretion to sever issues
to be tried before it.” Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994).
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Courts consider the following factors in determining whether to sever claims under Rule 21:
(1) whether the claims arise out of the same transaction or
occurrence; (2) whether the claims present some common
questions of law or fact; (3) whether settlement of the claims or
judicial economy would be facilitated; (4) whether prejudice
would be avoided if severance were granted; and (5) whether
different witnesses and documentary proof are required for the
separate claims.
Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 580 (E.D.N.Y. 1999); see also
Aspen Tech., Inc. v. Kunt, 2011 WL 86556, at *2 (S.D. Tex. Jan. 10, 2011).
Rule 42(b) authorizes the court to order a separate trial of one or more issues “[f]or
convenience, to avoid prejudice, or to expedite and economize.” Rule 42(b). “[T]he party
seeking bifurcation has the burden of showing that separate trials are proper in light of the
general principle that a single trial tends to lessen the delay, expense and inconvenience.”
Belisle v. BNSF Ry. Co., 697 F.Supp.2d 1233, 1250 (D. Kan. 2010) (internal quotation marks
omitted); Lowe v. Phila. Newspapers, Inc., 594 F. Supp. 123, 125 (E.D. Pa. 1984) (same).
The court has the discretion to bifurcate a trial. See, e.g., Siddiqui v. AutoZone W., Inc., 2010
WL 2925077, at *1 (N.D. Tex. July 20, 2010) (Fitzwater, C.J.).
B
BAE contends that severance or separate trials is necessary because plaintiffs’ legal
claims arise from disparate factual contentions, and that a single trial will result in jury
confusion and prejudice to BAE.29 Representative of this argument is BAE’s assertion in its
29
BAE does not argue that plaintiffs’ claims have been improperly joined.
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reply brief that “Plaintiffs’ claims are loosely tied together by little more than the fact that
each Plaintiff was notified of his termination on the same date as the others.” D. 11/5/2013
Reply Br. 1. It argues that because plaintiffs’ claims are only loosely tied together, a single
trial will confuse the jury and prejudice BAE because each plaintiff will be able to bolster
its case by bootstrapping his allegations to the cumulative weight of the evidence relating to
the other plaintiffs.
Plaintiffs respond that the relevant factors under Rule 21 and Rule 42 weigh in favor
of a single trial. They argue that, contrary to BAE’s characterization, their claims are closely
connected because all five plaintiffs worked in the same division at Fort Hood, held the same
position as either a FSR or Sr. FSR, were supervised by the same two Staff FSRs, and were
terminated in the same RIF on the same day by the same titular decisionmaker.
BAE has failed to persuade the court that a severance or separate trials are warranted
under the relevant factors. Plaintiffs’ claims arise out of the same transaction or occurrence
because plaintiffs were terminated as part of the same RIF, by the same titular decisionmaker
(Briggs), who relied on input by the same set of direct supervisors (Clarkson and Atherholt).
Consequently, plaintiffs’ claims present many common questions of law or fact, including,
for
example,
the
overarching
question
whether
BAE’s
proffered
legitimate,
nondiscriminatory reason for plaintiffs’ terminations—which is the same reason as to all five
plaintiffs—is pretextual. Although there are some differences between the factual allegations
supporting the retaliation claims asserted by Johnson and Whitley and the race discrimination
claims brought by all five plaintiffs, these differences do not outweigh the major similarities
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that predominate the underlying questions raised in this case.30 Moreover, BAE has not
shown why proper jury instructions will be insufficient to cure any potential confusion
caused by the fact that there is both a retaliation claim and a race discrimination claim in this
case. Other than relying on the speculative prospect of jury confusion, BAE does not provide
any other reason why it will be prejudiced by a single trial. In addition, plaintiffs rely on
many of the same witnesses and documentary evidence to support their claims. Based on the
foregoing, the court concludes that a single trial would promote the interest of judicial
economy.31 Given the substantial similarities among the plaintiffs, multiple trials would
certainly involve duplicative presentations of evidence.
Because BAE has failed to
demonstrate that severance or bifurcation is warranted in light of the relevant factors, the
30
BAE argues that Allen and Daniels, who bring only race discrimination claims,
should not be able to rely on evidence that the plaintiffs bringing retaliation claims did not
receive the same job opportunities, training, promotions, and responsibilities as similarly
situated Caucasian employees, or that they were required to perform tasks that similarly
situated Caucasian employees were not required to perform. Because the court is granting
summary judgment as to these allegations, see supra note 9, this ground for severance or
separate trials has been mooted. But even if it were not, BAE has failed to demonstrate that
this concern cannot be adequately addressed by properly instructing the jury.
31
In support of its position, BAE relies primarily on Henderson v. AT&T Corp., 918
F. Supp. 1059 (S.D. Tex. 1996), abrogated on other grounds as recognized by Holmes v.
Energy Catering Servs., LLC, 270 F.Supp.2d 882, 886 n.4 (S.D. Tex. 2003). That reliance
is misplaced. In Henderson the five plaintiffs worked in four separate offices, were directly
supervised by different managers in each office, and did not identify any specific
discriminatory policy or practice to which they were subjected. Henderson, 918 F. Supp. at
1061. Here, by contrast, the plaintiffs all spent time working at Fort Hood, were directly
supervised by the same two managers (Clarkson and Atherholt), and identify their April 2011
terminations, which occurred on the same day as part of the same RIF, as the adverse
employment action being challenged.
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court denies the motion.
*
*
*
For the reasons explained, BAE’s motion for summary judgment is granted in part and
denied in part. BAE’s motion to exclude testimony of Dr. Michael, motion to exclude
testimony of Dr. Ainslie, and motion for severance or separate trials are denied.
SO ORDERED.
April 30, 2014.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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