Reynolds v. Sovran Acquisitions LP
Filing
37
MEMORANDUM OPINION AND ORDER granting 20 MOTION for Summary Judgment filed by Sovran Acquisition LP; and granting 34 MOTION for Leave to File filed by Kathleen Reynolds. (Ordered by Judge Sidney A Fitzwater on 10/27/2015) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KATHLEEN REYNOLDS,
§
§
Plaintiff,
§
§ Civil Action No. 3:14-CV-1879-D
VS.
§
§
SOVRAN ACQUISITIONS, L.P. (DBA §
UNCLE BOB’S SELF STORAGE, INC.), §
§
Defendant.
§
MEMORANDUM OPINION
AND ORDER
This is an action by a plaintiff who alleges that her employment was terminated on the
basis of her sex, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., and her age, in violation of the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. Defendant moves for summary judgment.
Concluding that a reasonable jury could not find in plaintiff’s favor on either of her claims,
the court grants defendant’s motion and dismisses this action with prejudice.
I
Plaintiff Kathleen Reynolds (“Reynolds”) began working for defendant Sovran
Acquisition, L.P. (“Sovran”) as a store manager in 2009.1 She was terminated in August
1
In deciding this motion, the court views the evidence in the light most favorable to
Reynolds as the summary judgment nonmovant and draws all reasonable inferences in her
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.)).
2013, at the age of 53. When Reynolds was preparing to hire an assistant manager in
February 2012, Kevin Bagwell (“Bagwell”), her supervisor, told her, “You really want to
hire a man if you can because, I don’t care what they say, a man can do things around the
facility that a woman can’t.” Compl. 3-4. As a result, Reynolds hired a male. In October
2012 Bagwell made a similar comment to Reynolds when they were hiring a new assistant
manager for her, stating that “a man is a preferable hire.” Bagwell hired Chris Atkison
(“Atkison”), a male, without consulting Reynolds. On one occasion, Bagwell told Reynolds
that she should be, or appear to be, more “friendly and bubbly” toward people, and on
another occasion Bagwell talked to Reynolds about a customer service issue in which a
potential customer had complained about how she provided driving instructions to the store
over the telephone. Bagwell also made numerous statements suggesting that Reynolds was
not happy in her job and should think about quitting. For the two months preceding
Reynolds’ termination, Bagwell gave the store Reynolds managed satisfactory monthly
evaluations, which included assessments of the store’s customer relations. The store also
scored 100% on the 2013 internal audit, for which Reynolds received a congratulatory letter,
gift card, and shout out in the company bulletin, a few weeks before her termination. The
store ranked 10th out of 133 stores evaluated for the year 2012.
The parties disagree about some of the facts pertinent to a customer complaint that
Sovran maintains ultimately led to Reynolds’ termination. According to Reynolds, a
customer came into her store and became upset with her over something she would not do
because it was against company policy. The customer asked Reynolds for the telephone
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number to Store 91, stating that he knew “Brian,” the store manager, and that Brian would
say otherwise. Reynolds accidentally gave the customer her own telephone number instead
of the number for Store 91. When the customer called the number and realized what had
happened, he returned to Reynolds’ store and again requested the telephone number for Store
91. This time, Reynolds gave him the correct number. Atkison was working at Store 91 that
day. Reynolds called him, told him a customer would be calling, and asked him to back her
up on company policy.
According to Sovran, however, a customer who was upset with Reynolds asked her
for the telephone number of her supervisor (i.e., Bagwell). But instead of providing the
customer Bagwell’s telephone number, she gave him her own number. When the customer
realized what had happened, he returned to the store and again asked Reynolds for her
supervisor’s number. Rather than give the customer Bagwell’s number, she gave him the
telephone number for Store 91, where Atkison was working that day. Reynolds then called
Atkison and asked him to pretend to be her supervisor so that she would not get in trouble.
Atkison reported the incident to Bagwell via email on or about July 24, 2013. Bagwell
forwarded the email to Mike Osciak (“Osciak”) in Human Resources (“HR”), who stated that
HR would investigate the complaint. According to Sovran, Osciak spoke to Atkison
regarding the allegations in his email, and Bagwell investigated the complaint by speaking
to the customer and to Reynolds.
Reynolds contends, however, that there was no
investigation into the allegations in Atkison’s email and that HR simply backed Bagwell’s
decision to terminate her.
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The head of HR, Osciak, Bagwell, and another area manager had a conference call
regarding the incident. They, along with a regional vice president, decided to terminate
Reynolds. Reynolds’ position was initially offered to a female, who turned down the job,
and was eventually filled by Atkison, a significantly younger male.
After receiving a right to sue letter from the Equal Employment Opportunity
Commission (“EEOC”), Reynolds filed this lawsuit against Sovran, asserting claims for sex
discrimination, under Title VII, and age discrimination, under the ADEA. Sovran moves for
summary judgment on both of Reynolds’ claims. Reynolds opposes the motion.2
II
Because Reynolds will bear the burden of proof at trial on her claims for
discrimination under the ADEA and Title VII, Sovran can meet its summary judgment
obligation by pointing to the absence of admissible evidence to support Reynolds’ claims.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Sovran does so, Reynolds
must go beyond her pleadings and designate specific facts showing there is a genuine issue
for trial. See 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 jury could
return a verdict in Reynolds’ favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Reynolds’ failure to produce proof as to any essential element of a claim renders all
2
On September 21, 2015 Reynolds filed a motion for leave to file a supplemental brief
to call the court’s attention to a July 16, 2015 decision of the Fifth Circuit and a decision of
the Northern District of Texas by Magistrate Judge Ramirez. The court grants the motion.
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other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623
(N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory if Reynolds fails to meet
this burden. Little v. Liquid Air Corp., 37 F.3d at 1076.
III
The court will consider together Reynolds’ age discrimination claim under the ADEA
and her sex discrimination claim under Title VII. The familiar McDonnell Douglas burdenshifting framework applies to both claims.3
It is unlawful under the ADEA “to discharge any individual . . . because of such
individual’s age.” 29 U.S.C. § 623(a)(1). Title VII makes it unlawful for an employer to
discriminate against an employee on the basis of her sex. See 42 U.S.C. § 2000e–2(a)(1).
To prove her age and sex discrimination claims, Reynolds can rely on direct or circumstantial
evidence. See, e.g., Flanner v. Chase Inv. Servs. Corp., 600 Fed. Appx. 914, 917 (5th Cir.
2015) (per curiam) (ADEA claim); Dailey v. Whitehorn, 539 Fed. Appx. 409, 411 (5th Cir.
2013) (per curiam) (Title VII claim). If Reynolds relies on circumstantial evidence, her claim
is analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v.
3
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court
noted that it “has not definitively decided whether the evidentiary framework of McDonnell
Douglas . . . is appropriate in the ADEA context.” Id. at 175 n.2. The Court relied instead
on a textual analysis of the ADEA to resolve the question whether a plaintiff can succeed on
a “mixed-motives” claim of age discrimination. Id. at 175-77. Absent Supreme Court
authority, the court will follow the Fifth Circuit’s post-Gross precedent and apply McDonnell
Douglas to ADEA cases. See, e.g., Chamblee v. Miss. Farm Bureau Fed’n, 551 Fed. Appx.
757, 759 (5th Cir. 2014) (per curiam) (applying McDonnell Douglas framework to ADEA
claim).
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Green, 411 U.S. 792 (1973). See, e.g., Smith v. City of St. Martinville, 575 Fed. Appx. 435,
438 (5th Cir. 2014) (per curiam) (Title VII and ADEA claims); Munoz v. Seton Healthcare,
Inc., 557 Fed. Appx. 314, 321 (5th Cir. 2014) (per curiam) (Title VII and ADEA claims).
This framework consists of three stages.
First, Reynolds must establish a prima facie case of discrimination, which “creates a
presumption that [Sovran] unlawfully discriminated against [her].” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981).4
Second, the burden shifts to Sovran to articulate a legitimate, nondiscriminatory
reason for the employment action taken against Reynolds. See St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506-07 (1993). Sovran’s burden is one of production, not proof, and
involves no credibility assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d
379, 385 (5th Cir. 2003). This “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, once Sovran has produced evidence of a legitimate, nondiscriminatory reason
for the adverse employment action, “the presumption of discrimination created by
[Reynolds’] prima facie case disappears,” Machinchick v. PB Power, Inc., 398 F.3d 345, 350
(5th Cir. 2005), and “the burden shifts back to [Reynolds] to make an ultimate showing of
4
Sovran assumes for purposes of this motion that Reynolds has established a prima
facie case. Because the prima facie case step is not at issue, the court will not set out the
elements of a prima facie case.
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intentional discrimination,” Campbell v. Zayo Grp., LLC, 2015 WL 3903539, at *3 (N.D.
Tex. June 25, 2015) (Fitzwater, J.) (quoting Reed v. Neopost USA, Inc., 701 F.3d 434, 439
(5th Cir. 2012)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000). For a title VII claim, Reynolds must prove either that (1) “[Sovran’s] reason is not
true, but is instead a pretext for discrimination” (pretext analysis) or (2) “[Sovran’s] reason,
while true, is only one of the reasons for its conduct, and another motivating factor is
[Reynolds’] protected characteristic” (mixed-motive analysis). Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 312 (5th Cir. 2004) (internal quotations omitted). For an ADEA claim,
however, Reynolds must prove either that (1) “[Sovran’s] proffered reason was not true—but
was instead a pretext for age discrimination” (pretext analysis) or (2) “even if [Sovran’s]
reason is true, [she] was terminated because of [her] age” (“but for” analysis). Flanner, 600
Fed. Appx. at 918 (footnotes and internal quotation marks omitted). Under the ADEA, “a
reason cannot be proved to be a pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason.” Id. In other words, the
causation standard under the third stage of McDonnell Douglas differs for ADEA and Title
VII claims because, under Title VII, Reynolds need only prove that her sex was a motivating
factor in the employment decision, but, under the ADEA, she must prove that her age was
the “but for” cause (the reason) for the employment decision. See Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 180 (2009) (“Unlike Title VII, which has been amended to explicitly
authorize discrimination claims where an improper consideration was ‘a motivating factor’
for the adverse action, . . . the ADEA does not provide that a plaintiff may establish
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discrimination by showing that age was simply a motivating factor.”); Reed, 701 F.3d at 440
(citing Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010)) (“Under the ADEA,
a plaintiff must prove that age was the ‘but for’ cause of the challenged adverse employment
action.”). At the summary judgment stage, of course, Reynolds is only obligated to raise a
genuine issue of material fact regarding pretext. See, e.g., Jackson v. Fed. Express Corp.,
2006 WL 680471, at *6 (N.D. Tex. Mar. 14, 2006) (Fitzwater, J.) (“Because [defendant] has
satisfied its burden to produce a legitimate, nondiscriminatory reason for [plaintiff’s]
discharge, in order for [plaintiff] to survive summary judgment, he must create a genuine and
material fact issue regarding the ultimate question of discrimination.”).
“Although intermediate evidentiary burdens shift back and forth under this
framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.’”
Reeves, 530 U.S. at 143 (alteration in original) (quoting Burdine, 450 U.S. at 253).
IV
The court first considers whether Reynolds has proffered direct evidence of
discrimination. Reynolds contends that Bagwell’s comment, “You really want to hire a man
if you can because, I don’t care what they say, a man can do things around the facility that
a woman can’t,” Compl. 3-4, is direct evidence of sex discrimination because it refers to
women in general.5 Direct evidence is “evidence that, if believed, proves the fact of
5
In her motion for leave to file a supplemental brief, Reynolds appears to concede that
this statement is circumstantial evidence. The court will address this issue, however, because
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discriminatory animus without inference or presumption.” Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 897 (5th Cir. 2002). “If an inference is required for the evidence to be
probative as to [defendant’s] discriminatory animus in firing [plaintiff], the evidence is
circumstantial, not direct.” Id. at 897-98. “Where a plaintiff offers remarks as direct
evidence, we apply a four-part test to determine whether they are sufficient to overcome
summary judgment.” Reed, 701 F.3d at 441. The “[remarks] must be 1) related to the
protected class of persons of which the plaintiff is a member; 2) proximate in time to the
terminations; 3) made by an individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.” Auguster v. Vermilion Parish Sch. Bd.,
249 F.3d 400, 405 (5th Cir. 2001) (alterations and internal quotation marks omitted) (quoting
Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999)); see also Akop v. Goody
Goody Liquor, Inc., 2006 WL 119146, at *3 (N.D. Tex. Jan. 17, 2006) (Fitzwater, J.)
(quoting Bowe v. Exide Corp., 2001 WL 705881, at *3 n.1 (N.D. Tex. 2001) (Fitzwater, J.))
(“‘Such evidence typically involves statements made by the employer or certain of its
personnel that indicate that an employment decision was based on a forbidden factor.’”).
The court holds that the evidence on which Reynolds relies is not direct evidence of
discrimination because it was not made proximate in time to Reynolds’ termination and was
not related to her termination. See Auguster, 249 F.3d at 405 (noting that comments were
it is unclear whether Reynolds has changed her position. Reynolds also asserts that
Bagwell’s later comment that “a man is a preferable hire” is circumstantial evidence.
Accordingly, the court will not address that comment in this section.
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made by decisionmaker and related to plaintiff, but holding that they were stray remarks
because they were made almost one year before the decision, and there was no substantial
evidence that they related to the decision). Bagwell’s comment occurred more than one year
before Reynolds was terminated and thus was not proximate in time to the employment
decision. See id.; see also Akop, 2006 WL 119146, at *3 (concluding that comment made
to employee that he “must have Alzheimer’s disease” did not constitute direct evidence
because it “occurred eight months before his termination and was not proximate in time to
the employment decision at issue”).
Additionally, Reynolds has not presented any evidence, and the comment itself does
not show, that it was related to the decision to terminate her. See Auguster, 249 F.3d at 405.
The court addressed a similar comment under similar circumstances in Read v. BT Alex.
Brown, Inc., 2002 WL 22060, at *3-4 (N.D. Tex. Jan. 7, 2002) (Fitzwater, J.), aff’d, 72 Fed.
Appx. 112 (5th Cir. 2003). In Read the court concluded, inter alia, that a comment—“[t]hese
girls back here are not working very hard and what I’d like to do is for us to hire a young
man just out of college who will work his . . . buns off”—was related to the hiring of an
assistant for plaintiff and thus was not sufficiently related to plaintiff’s termination. Id. In
the present case, Reynolds testified that Bagwell made this comment in the context of hiring
an assistant for her, just as in Read; that she did not recall Bagwell’s making the comment
in reference to any other position; and that, at the time the comment was made, she did not
think it was aimed at being discriminatory towards her. Reynolds’ contention that this
comment proves Sovran’s discriminatory intent requires an inference or presumption.
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Accordingly, it is not direct evidence of discrimination. See, e.g., Sandstad, 309 F.3d at 89798.
V
Because Reynolds has not introduced direct evidence of discrimination, the court will
apply the McDonnell Douglas framework to her age and sex discrimination claims. Sovran
assumes for the purposes of this motion that Reynolds has established a prima facie case for
each of her claims. See supra note 4. Reynolds concedes that Sovran has articulated a
legitimate, nondiscriminatory reason for terminating her. Sovran has introduced evidence
that it terminated Reynolds for the following reasons: she had multiple customer service
issues; she supplied a customer with false information and falsified her supervisor’s
telephone number; and she fraudulently lied to, misled, and deceived a customer who wanted
to lodge a complaint against her. Accordingly, the court will proceed to the third step of the
McDonnell Douglas framework and determine whether Reynolds has introduced sufficient
summary judgment evidence for a reasonable jury to find in her favor.
VI
A
Reynolds contends that Sovran’s proffered reasons for terminating her are pretextual.6
6
The only time that Reynolds appears to rely on mixed-motive analysis is when she
alleges in her complaint that “a motivating factor in her termination was also her age.”
Compl. 4 (emphasis added). But mixed-motive analysis is unavailable for an age
discrimination claim under the ADEA. See Gross, 557 U.S. at 175-76 (holding that ADEA
does not authorize mixed-motive age discrimination claim); Reed, 701 F.3d at 440 (stating
that at the third stage of McDonnell Douglas, “[u]nder the ADEA, a plaintiff must prove that
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Reynolds “may show pretext ‘either through evidence of disparate treatment or by showing
that [Sovran’s] proffered explanation is false or ‘unworthy of credence.’’” Jackson v. CalWestern Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010) (quoting Laxton v. Gap Inc.,
333 F.3d 572, 578 (5th Cir. 2003)); see also Vaughn v. Woodforest Bank, 665 F.3d 632, 637
(5th Cir. 2011). “If [Reynolds] can successfully ‘raise a genuine issue of material fact as to
whether [she] has established pretext, that will suffice to avoid summary judgment.’”
Sullivan v. Worley Catastrophe Servs., L.L.C., 591 Fed. Appx. 243, 247 (5th Cir. 2014) (per
curiam) (quoting Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)).
Additionally, Reynolds “must rebut each of [Sovran’s] nondiscriminatory reasons in order
to survive summary judgment.” Jackson v. Watkins, 619 F.3d 463, 466-67 (5th Cir. 2010)
(per curiam). And to carry her burden, Reynolds “must produce substantial evidence of
pretext.” Auguster, 249 F.3d at 402-03.
B
Reynolds maintains that she has created a fact issue regarding pretext based on
Sovran’s having given her three different and contradictory reasons for terminating her
employment. She points to Sovran’s termination form, which states that she was being
terminated for “[s]upplying customer false information and falsifying phone # of supervisor,”
P. App. 171; Sovran’s response to the EEOC, in which its attorney stated that “she was
age was the ‘but for’ cause of the challenged adverse employment action”). Accordingly,
the court need not address mixed-motive analysis, and it will address both her claims under
the pretext alternative.
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terminated for the fraudulent conduct of lying to, misleading and deceiving a customer who
wanted to lodge a complaint about her conduct,” id. at 156; and Bagwell’s statement that she
was being terminated because she “had too many customer complaints,” P. Br. 3.
The court concludes that these statements do not create a genuine fact issue
concerning pretext because they do not contradict each other. First, the fact than an employer
provides multiple reasons for an employment decision does not of itself make the reasons
contradictory. See, e.g., Hamilton v. Waters Landing Apartment, 2014 WL 1255839, at *6
(N.D. Tex. Mar. 27, 2014) (Fitzwater, C.J.) (concluding that employer, who first “offered no
explanation why [employee] was being let go, then stated that she did not keep up the white
boards, then stated that [she] was not able to do the job of property manager, and finally
stated that he did not trust her,” provided different explanations, but the explanations were
not materially inconsistent), aff’d, 593 Fed. Appx. 314 (5th Cir. 2014), cert. denied,
___U.S.___, 135 S.Ct. 1748 (2015). Second, all three of Sovran’s proffered reasons revolve
around the incident in which Reynolds gave the wrong telephone number to a customer who
wished to speak to a manager about a decision of Reynolds with which the customer
disagreed. The termination form and EEOC response use different words to explain why
Reynolds was terminated, but the fundamental reason expressed in both is the same: Sovran’s
belief that she acted deceptively on this occasion. And although Bagwell’s comment focused
on the number of customer complaints rather than Reynolds’ deceptive conduct when dealing
with the one particular customer complaint, his reasoning does not contradict the other two
explanations. He, too, focused on customer complaints. In fact, his reason can be seen as
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“consistent with, and indeed explained by, the more specific reason[s]” provided in the
termination form and EEOC response. Id. The court therefore concludes that the evidence
that Sovran offered multiple reasons for terminating Reynolds’ employment does not create
a genuine fact issue regarding pretext.
C
Reynolds next contends that the lack of any evidence supporting Sovran’s reasons for
terminating her show that its reasons are false. Regarding Bagwell’s statement that she “had
too many customer complaints,” Reynolds argues that Sovran has produced evidence of only
one customer who allegedly complained, and that she never received any reprimands because
of customer complaints while under Bagwell’s supervision. As for giving the customer the
wrong telephone number, Reynolds points out that Sovran has produced no documents or
evidence showing that she had a “fraudulent intent” to mislead the customer, that Bagwell
could neither give the identity of the customer nor give the time in which he talked to the
customer, and that, despite her numerous requests, Sovran has not revealed the identity of
the alleged customer and has not provided her with any evidence showing that Bagwell,
Osciak, or anyone else in HR made any notes or documented anything about the incident.
Reynolds also relies on the fact that Sovran terminated her without warning and did not
follow any formal disciplinary process before terminating her. She maintains that when a
complaint about an employee arises, it is good employment practice for the employer to
follow a formal disciplinary process in which the employer documents the complaint in
writing, investigates the complaint, shows the complaint to the employee, allows the
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employee to defend herself, mentors the employee, and gives the employee warnings before
terminating her. Reynolds asserts that Sovran’s Employee Handbook provides for a similar
process.
Even when the evidence is viewed in the light most favorable to Reynolds and all
inferences are drawn in her favor, the evidence does not create a genuine fact issue regarding
pretext. Reynolds has failed to point to summary judgment evidence that would enable a
reasonable jury to find that Sovran deviated from its formal disciplinary practice. Reynolds
does not include the relevant parts of Sovran’s Employee Handbook in the summary
judgment record, and, in support, she only offers testimony that she “believed” Sovran
adopted a similar process to the one she described. Moreover, Reynolds’ unsubstantiated and
subjective beliefs and opinions regarding good employment practices are insufficient to
create a genuine fact issue. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.
2002) (citing Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996))
(“‘[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to
satisfy’ the nonmovant’s burden in a motion for summary judgment.”).
Additionally, it is uncontested that Reynolds was aware of at least two customer
complaints against her at the time she was terminated: the incident involving the telephone
number, and another involving a potential customer who complained about how she provided
driving instructions to her store. It also is uncontested that Bagwell spoke to Reynolds about
the incident involving driving instructions; that Reynolds gave a customer her telephone
number instead of the telephone number he requested; and that Atkison sent Bagwell an
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email detailing the incident between Reynolds and that customer, which Bagwell forwarded
to HR. At most, this evidence would enable a reasonable jury to find that Sovran made a
mistake when it decided to rely on the information Atkison provided in the email, without
fully investigating the customer complaint. But mere evidence that an employer made a
mistake in terminating an employee does not create a genuine fact issue regarding pretext,
because “even an incorrect belief that an employee’s performance is inadequate constitutes
a legitimate, non-discriminatory reason. We do not try in court the validity of good faith
beliefs as to an employee’s competence. Motive is the issue.” Duff v. Farmers Ins. Exch.,
2014 WL 1577786, at *12 (N.D. Tex. Apr. 21, 2014) (Fitzwater, C.J.) (quoting Little v.
Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991)); see also Jackson v. Cal-Western
Packaging Corp., 602 F.3d at 379 (quoting Waggoner v. City of Garland, 987 F.2d 1160,
1165 (5th Cir. 1993)) (holding that when employer discharges an employee based on
complaints lodged by another employee, the issue is not the truth or falsity of the allegation,
but “whether the employer reasonably believed the employee’s allegation and acted on it in
good faith”); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“The
question is not whether an employer made an erroneous decision; it is whether the decision
was made with discriminatory motive.”).
The ADEA was not intended to be a vehicle for judicial
second-guessing of employment decisions, nor was it intended
to transform the courts into personnel managers. The ADEA
cannot protect older employees from erroneous or even arbitrary
personnel decisions, but only from decisions which are
unlawfully motivated.
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Grimsley v. Richardson Hosp. Auth., 2012 WL 4739911, at *7 (N.D. Tex. Oct. 3, 2012)
(Fitzwater, C.J.) (quoting Rosenblatt v. 7-Eleven, Inc., 2007 WL 2187252, at *11 (N.D. Tex.
July 27, 2007) (Fitzwater, J.)). Consequently, employers can be completely mistaken in their
decisions to terminate employees without violating the ADEA or Title VII. See Duff, 2014
WL 1577786, at *12 (“Federal anti-discrimination laws protect against unlawful
discrimination, not against employer mistakes.”). Reynolds has not raised a genuine fact
issue as to whether the Sovran employees who made the decision to terminate her believed
that she had too many customer complaints, supplied a customer with false information,
and/or fraudulently lied to, misled, and deceived a customer. She has therefore failed on this
basis to raise a genuine fact issue regarding pretext.
D
Reynolds also maintains that her good evaluations, her special recognitions, and the
lack of any record of prior discipline makes it unlikely that she would intentionally and
fraudulently try to mislead or deceive a customer or that she had too many customer
complaints. Reynolds points out that the store she managed received satisfactory monthly
evaluations from Bagwell for the two months preceding her termination; her store scored a
100% on the 2013 internal audit for which she was given a congratulatory letter, gift card,
and shout out in the company bulletin, a few weeks before her termination; and her store was
ranked 10th out of 133 stores evaluated in 2012.
Reynolds’ evidence is insufficient to create a genuine fact issue. Sovran does not
deny that, at times, or even in most aspects, Reynolds performed in her position well. Sovran
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posits that Reynolds handled customer service issues poorly on at least two occasions. It is
undisputed that, on one occasion, Reynolds gave her own telephone number to a customer
who wished to speak to a manager about a decision of Reynolds with which the customer
disagreed. On another occasion, a potential customer complained about how Reynolds
provided driving instructions to her store.
And Sovran has offered evidence that it terminated Reynolds because it believed she
had acted deceptively when dealing with a customer who wanted to complain about her
conduct. Reynolds’ evidence that she had received good evaluations and special recognitions
would not enable a reasonable jury to find that the reasons Sovran has provided for
terminating her are pretextual. Terminating a manager for perceived dishonesty—especially
engaging in deceptive conduct directed at a customer—is not at all inconsistent with having
previously given the manager satisfactory monthly evaluations, the manager’s store’s having
performed well on an internal audit, and the store’s positive comparative ranking. This is so
because, despite the manager’s prior performance, the employer’s belief that the manager
acted deceptively compromises, if not destroys, the trust and confidence placed in the
manager that is an essential facet of the employment relationship. It is misconduct that by
its nature is so serious that, if the employer believes it has occurred, justifies termination
despite the positive employment history that preceded it.
E
Reynolds next contends that Bagwell’s comments to her provide circumstantial
evidence of discriminatory intent. She alleges that, when she was preparing to hire an
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assistant manager, Bagwell stated, “You really want to hire a man if you can because, I don’t
care what they say, a man can do things around the facility that a woman can’t.”7 Compl. 34. Reynolds asserts that, as a result of this statement, she hired a male. Reynolds also relies
on a similar comment—“a man is a preferable hire”—that Bagwell made to her when they
were filling her assistant manager position a second time. She maintains that Bagwell hired
Atkison, a male, for the position, without her input. Reynolds also maintains that Bagwell
once told her that she should be, or appear to be, more “friendly and bubbly” toward people.
And she asserts that Bagwell made numerous statements to her about how some people are
not happy in their jobs, she might be happier doing something else, and maybe she did not
like working for Sovran.
To qualify as circumstantial evidence of intentional discrimination, a remark must
“first, demonstrate discriminatory animus and, second, be made by a person primarily
responsible for the adverse employment action or by a person with influence or leverage over
the formal decisionmaker.” Laxton, 333 F.3d at 583 (citing Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 225 (5th Cir. 2000)); see also Goudeau v. Nat’l Oilwell Varco, L.P.,
793 F.3d 470, 475-76 (5th Cir. 2015); Reed, 701 F.3d at 441; Sandstad, 309 F.3d at 899.
Reynolds has satisfied the second requirement as to all of Bagwell’s remarks because
Bagwell was Reynolds’ direct supervisor and was a participant in the decision to terminate
her. The question therefore becomes whether Reynolds has satisfied the first requirement.
7
The court concludes supra at § IV that this comment is circumstantial evidence.
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Bagwell’s comments that Reynolds should be more “friendly and bubbly” toward
people and that she was not happy in her job and should consider quitting neither implicate
age nor sex nor demonstrate discriminatory animus on either basis.
Bagwell’s statements that Reynolds should hire a man and that a man is a preferable
hire do implicate sex, but they do not raise a genuine issue concerning discriminatory animus
because Reynolds has “failed to establish any meaningful connection between [Bagwell’s]
comments and her termination.” Hamilton, 2014 WL 1255839, at *5 (citing Bissett v. Beau
Rivage Resorts, Inc., 442 Fed. Appx. 148, 153-54 (5th Cir. 2011) (per curiam)) (“[E]ven
assuming that [the] statement about a different employee is somehow relevant to [plaintiff’s]
discharge, this piece of evidence is insufficient to create an issue of material fact.”)
(alterations in original); see also Read, 2002 WL 22060, at *9 n.6. The summary judgment
evidence indicates that Bagwell did not make the comments regarding hiring a male in
connection with Reynolds’ termination. He made these comments when considering
someone for the position of Reynolds’ assistant manager; they were made more than eight
months before Reynolds was terminated; and Reynolds acknowledged that, at the time the
statements were made, she did not think they were intended to be discriminatory toward her.
Thus Bagwell’s comments would not permit a reasonable jury to find that Sovran’s
legitimate, nondiscriminatory reasons for terminating Reynolds’ employment are pretextual.
F
Reynolds maintains that the fact that she was terminated and replaced by a male who
was substantially younger than she shows that Sovran’s reasons are false, and that her age
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and sex are reasons for her termination. Reynolds only points out that she was a 53-year-old
female when she was terminated and that Atkison was a 27-year-old male when he replaced
her. The mere fact that Sovran subsequently hired a younger male would not enable a
reasonable jury to find either that Sovran’s legitimate nondiscriminatory reasons are false or
that age or sex played a role in Sovran’s decision to terminate Reynolds. Reynolds does not
dispute that Sovran initially offered her position to a female—who turned it down—before
offering it to Atkison. Cf. Nieto v. L&H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997)
(holding that, although not outcome determinative, fact that plaintiff’s position was
immediately filled by member of same protected class was material to question of
discriminatory intent). This evidence would not permit a reasonable jury to find that
Sovran’s legitimate, nondiscriminatory reasons are pretextual.
G
Reynolds also posits that Bagwell set her up to be discharged, and she points to four
pieces of summary judgment evidence to support her assertion. First, Reynolds relies on
Atkison’s deposition testimony that he “think[s] that customer was just out to get
[Reynolds];” he “personally believe[s]” that Bagwell tried to set Reynolds up; he “just
think[s]” that Bagwell is “a backstabber” who “do[es]n’t care about his managers or
associates;” and he “personally think[s]” Bagwell did not like Reynolds because “she was
really good at what she [did], and that’s just [his] personal opinion.” P. App. 180, 186, 188
(emphasis added). This evidence represents nothing more than Atkison’s subjective beliefs
and opinions, which is inadequate to create a genuine fact issue. See, e.g., Islamic Ass’n of
- 21 -
DeSoto, Texas, Inc. v. Mortgage Electronic Registration Systems, Inc., 2013 WL 169229, at
*7 n.11 (N.D. Tex. Jan. 16, 2013) (Fitzwater, C.J.) (citing Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th
Cir. 1994)) (“Unsubstantiated and subjective beliefs and conclusory allegations and opinions
of fact are not competent summary judgment evidence.”); see also Nobles v. Cardno, Inc.,
549 Fed. Appx. 265, 267 (5th Cir. 2013) (per curiam) (citing Waggoner, 987 F.2d at 1164)
(Plaintiff “must do more than speculate; he must prove that the articulated reasons for his
termination are a pretext. Mere subjective assertions, without more, are insufficient.”).
Second, Reynolds relies on her deposition testimony that “[i]t seemed that [Bagwell]
was kind of targeting me to try to persuade me to quit;” that “I believe that [Bagwell] wanted
to get [Atkison] in the position;” and that she told Atkison, “I felt like [Bagwell] was trying
to get me to quit.” P. App. 13 and 38 (emphasis added). Reynolds’ subjective belief that she
was discriminated against is likewise insufficient to meet her summary judgment burden.
See Little v. Republic Refining Co., 924 F.2d at 96 (“An age discrimination plaintiff’s own
good faith belief that his age motivated his employer’s action is of little value.”); see also
Andrews v. Schneider Logistics, Inc., 2014 WL 6460010, at *6 (N.D. Tex. Nov. 18, 2014)
(Fitzwater, J.) (citations omitted) (holding, inter alia, that plaintiff had not produced evidence
of pretext because he relied on his conclusory assertion that defendant “wanted to terminate
[him], so [it] used the email to achieve that goal” without a proper citation to the summary
judgment record) (alterations in original).
Third, Reynolds relies on part of Atkison’s email to Bagwell, in combination with
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Atkison’s testimony regarding the email. It is undisputed that Atkison first told Bagwell
about the incident verbally, and, at Bagwell’s request, sent him an email detailing the
incident, and that Atkison’s email to Bagwell contained additional complaints against
Reynolds. Reynolds maintains that Bagwell instructed Atkison to include additional
complaints about her in the email; that Bagwell told Atkison what particular complaints to
include; and that Atkison included everything negative that he personally knew or had heard
about her. Relying on the “same actor” inference,8 Sovran contends that “[i]t is illogical that
the same employee, Bagwell, who gave [Reynolds] high marks on store visits, would then
turn around and discriminate against her based on her age or her gender.” D. Br. 25.
Reynolds has not responded to Sovran’s argument, but the court need not consider it because
this evidence, alone or in combination with the other three reasons, is insufficient to raise a
genuine fact issue.
Fourth, Reynolds relies on the deposition testimony of Tammy Vega (“Vega”), an
associate manager under Atkison. Vega testified that Atkison told her that “he [Atkison] had
set [Reynolds] up to get fired,” and “[h]e wanted her apartment and that [he] and [Bagwell]
were trying to get rid of [Reynolds].” P. App. 195. Sovran objects to this evidence as
8
The “same actor inference” provides that 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)).
- 23 -
hearsay.9 Reynolds responds that the evidence is admissible under the hearsay exclusion
found in Fed. R. Evid. 801(d)(2)(D).10
Even if the court assumes arguendo that Atkison’s statements are admissible under
Rule 801(d)(2)(D), Sovran is still entitled to summary judgment. Evidence that Atkison set
Reynolds up to be fired and wanted her apartment, and that he and Bagwell were trying to
get rid of her, would not enable a reasonable jury to find that Atkison or Bagwell acted based
on Reynolds’ sex or age, or that Sovran was aware of their motives when it terminated her
on the basis that she had engaged in deceptive conduct involving a customer.
9
Reynolds testified that she heard that other women were terminated by Sovran or
harassed by Bagwell. Sovran objects to this evidence as hearsay. Although Reynolds has
not responded to the objection, there is no indication that she intends to rely on this evidence.
Accordingly, the court need not address Sovran’s objection.
10
Sovran made its objections in its summary judgment reply. Reynolds moved for
leave to file a “reply brief” to Sovran’s reply. The court granted the motion in part, and it
permitted Reynolds to respond to Sovran’s evidentiary objections. In her April 22, 2015
reply, Reynolds states that “[a] ruling on this objection is actually mooted, because Atkison’s
deposition testimony itself makes clear that he and Bagwell conspired to get Reynolds fired.”
P. Apr. 22, 2015 Reply 2. On September 21, 2015 Reynolds filed a motion for leave to file
a supplemental brief to call the court’s attention to a July 16, 2015 decision of the Fifth
Circuit and a decision of the Northern District of Texas by Magistrate Judge Ramirez. In her
proposed supplemental brief, Reynolds maintains that Alba v. Loncar, 2004 WL 1144052
(N.D. Tex. May 20, 2004) (Ramirez, J.), supports the conclusion that, under Rule
801(d)(2)(D), Vega’s testimony is not hearsay. See P. Sept. 21, 2015 Supp. Br. 2. Citing
Alba, Reynolds contends that statements need only concern a matter within the scope of the
employment of the person making the statement, and, as Vega’s supervisor, Atkison was
responsible for her training and his comments about the plan to set Reynolds up for
termination were made in the process of that training. Id.
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VII
Finally, the court will consider whether this is a case in which no rational factfinder
could conclude that Reynolds’ termination was discriminatory, even if the court assumes that
her prima facie case, combined with sufficient evidence to find that Sovran’s asserted
justifications are false, might permit a reasonable jury to find that Sovran unlawfully
discriminated. This result is permitted where the record conclusively reveals some other,
nondiscriminatory reason for the employer’s decision, or where the plaintiff creates only a
weak issue of fact as to whether the employer’s reason was untrue, and there is abundant and
uncontroverted independent evidence that no discrimination has occurred.
A
The Supreme Court explained in Reeves that
[a] plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer
unlawfully discriminated. This is not to say that such a showing
by the plaintiff will always be adequate to sustain a jury’s
finding of liability. Certainly there will be instances where,
although the plaintiff has established a prima facie case and set
forth sufficient evidence to reject the defendant’s explanation,
no rational factfinder could conclude that the action was
discriminatory. For instance, an employer would be entitled to
judgment as a matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s
decision, or if the plaintiff created only a weak issue of fact as
to whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that no
discrimination had occurred.
Reeves, 530 U.S. at 148 (emphasis in original) (citing Aka v. Washington Hosp. Ctr., 156
- 25 -
F.3d 1284, 1291-92 (D.C. Cir. 1998); Fisher v. Vassar Coll., 114 F.3d 1332, 1338 (2d Cir.
1997) (“[I]f the circumstances show that the defendant gave the false explanation to conceal
something other than discrimination, the inference of discrimination will be weak or
nonexistent.”)). “The ultimate question is whether the employer intentionally discriminated,
and proof that ‘the employer’s proffered reason is unpersuasive, or even obviously contrived,
does not necessarily establish that the plaintiff’s proffered reason . . . is correct.’” Id. at 14647 (quoting St. Mary’s Honor Ctr., 509 U.S. at 524). “In other words, ‘[i]t is not enough .
. . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of
intentional discrimination.’” Id. at 147 (alteration, emphasis and ellipses in original) (quoting
St. Mary’s Honor Ctr., 509 U.S. at 519). Thus “[i]t is ‘possible for a plaintiff’s evidence to
permit a tenuous inference of pretext and yet be insufficient to support a reasonable inference
of discrimination.’” West, 330 F.3d at 385 (quoting Crawford v. Formosa Plastics Corp.,
234 F.3d 899, 903 (5th Cir. 2000)).
B
According to Reynolds, Atkison and Bagwell had been good friends for years before
Bagwell hired Atkison. She maintains that they
conspired to terminate her on false grounds in order to give [her]
job, salary, and the free apartment [that came with her job] to
Atkison; that, in doing so, they illegally discriminated against
and cause the termination of [Reynolds] in order to benefit
Atkison, who was a younger, male employee.
D. App. 114; see also P. Br. 1. Assuming arguendo that the summary judgment record
establishes that these assertions are true, and that Bagwell alone made the decision to
- 26 -
terminate her, or that the other decisionmakers merely rubberstamped his decision, Reynolds
has conclusively proved that Sovran’s reasons for firing her are false and the real reasons are
“some other, nondiscriminatory reason[s]”—a desire to give the manager position, salary,
and free apartment to a long-time friend, who happened to be a younger male. See Reeves,
530 U.S. 133 at 148. This is not a “real” reason that is related to age or sex discrimination
any more than it would be related to race discrimination if Reynolds and Atkison were of
different races. It so happens that Atkison—whom Reynolds alleges benefited from
Bagwell’s friendship and favoritism—is younger than she and is a male. See id.; Nieto, 108
F.3d at 624 (holding that employee’s claim that employer was “out to get him” because he
was successful at “what he was doing,” even if true, did not support a discrimination claim
because “Title VII . . . do[es] not protect against unfair business decisions[,] only against
decisions motivated by unlawful animus”) (alterations and ellipses in original) (citations
omitted).
C
Alternatively, even if Sovran is not entitled to summary judgment on the ground that
the record conclusively reveals some other, nondiscriminatory reason for its decision to
terminate Reynolds, it would still be entitled to summary judgment on the basis that
Reynolds has created, at most, only a weak issue of fact, and there is abundant,
uncontroverted evidence that no age or sex discrimination occurred. See Reeves, 530 U.S.
133 at 148; see also Smith v. Hewlett-Packard Co., 512 F.Supp.2d 587, 601-02 (N.D. Tex.
2007) (Fitzwater, J.) (noting that summary judgment is appropriate where there is a “weak
- 27 -
issue of fact” and “abundant and uncontroverted evidence that no discrimination occurred”);
Rosenblatt, 2007 WL 2187252, at *12-13 (granting summary judgment where, assuming fact
issue on question of pretext existed, fact issue was “weak,” and there was no evidence that
employee’s age was ever considered in employer’s decision to terminate his employment).
Regarding her age discrimination claim, Reynolds was over age 40 when Sovran hired
her. There is no evidence that anyone at Sovran ever made any negative age-related
comments about Reynolds or anyone else, and there is no evidence that age was ever
considered in any respect in the decision to terminate her employment. Reynolds does not
contend that there is such proof, and she cites none in her briefs.
As for her sex discrimination claim, there is no evidence that anyone at Sovran ever
made any negative sex-related comments about Reynolds or her position, and there is no
evidence that Reynolds ever believed, at the time comments about sex were made to her, that
any comment was aimed discriminatory toward her or her position. There is also no evidence
that sex was ever considered in any respect in the decision to terminate her employment.
Reynolds’ case relies on pretext alone.
There is abundant proof, however, that age and sex did not play a role in Sovran’s
determination. As noted, the summary judgment record establishes that Sovran hired
Reynolds when she was over 40 years old, and, when Reynolds was terminated, Sovran
initially offered her position to a female. The evidence shows that Reynolds had at least two
customer service incidents—the incident where a potential customer complained about how
Reynolds provided driving directions to the store, and the incident in which Reynolds
- 28 -
provided a customer with her telephone number instead of the number he requested, which
Sovran believed to involve dishonest conduct. The court therefore concludes that Reynolds
has failed to adduce evidence that would permit a reasonable jury to find that Sovran’s
legitimate, nondiscriminatory reasons are pretextual. Accordingly, Sovran is entitled to
summary judgment dismissing Reynolds’ age discrimination claim under the ADEA and her
sex discrimination claim under Title VII.
*
*
*
For the reasons explained, the court grants Sovran’s motion for summary judgment
and dismisses Reynolds’ ADEA and Title VII claims with prejudice by judgment filed today.
SO ORDERED.
October 27, 2015.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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