Blasingame v. Eli Lilly and Company

Filing 38

MEMORANDUM OPINION AND ORDER granting 22 MOTION for Summary Judgment and Brief in Support Thereof. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

PATTI A. BLASINGAME,

§
§
§
§

Plaintiff,

CIVIL ACTION NO. H-11-4522

§
§
§
§

v.

ELI LILLY AND COMPANY,
Defendant.

§

MEMORANDUM OPINION AND ORDER

Plaintiff,
defendant,

Patti A.

Eli

Lilly

Blasingame,

and

Company,

brings this action against
for

sex

discrimination

in

employment and retaliation in violation of Title VII of the Civil
Rights Act of 1964

("Title VII"),

42 U.S.C.

§

2000e,

the Texas

Commission on Human Rights Act ("TCHRA"), as codified in the Texas
Labor Code 29,
Act of 2009

§

21.001, et seq., and the Lilly Ledbetter Fair Pay

("LLFPA"),

42

U.S.C.

2000e-5 (e) (3) (A).

§

Pending

before the court is Defendant's Motion for Summary Judgment (Docket
Entry No. 22).
for

summary

For the reasons stated below, defendant's motion

judgment

will

be granted and this

action will

be

dismissed.
I.

Undisputed Facts

Plaintiff was hired by defendant in 1992 as a pharmaceutical
sales representative.
Wesley

Sackrule

In 2001 plaintiff received a promotion when

selected her

from

a

list

of

company-approved

candidates to serve as a District Sales Managers ("DSM") under his
supervision.
her

performance,

2010

supervisor,

following an interim review of

plaintiff

discriminatory

allegedly

Resources

In October of 2010,

Grady Grant. 1

conduct

complained
to

about

Sackrule's

Sackrule's

immediate

Rebecca Savikas in defendant's Human

("HR") Department investigated plaintiff's complaint. 2

In November of
contributor

2010

role

Sackrule was
because

reassigned

"to an individual

Savikas'

investigation

led

(defendant] to conclude that Sackrule was not well suited to manage
other employees.":'

Following Sackrule's reassignment plaintiff

reported directly to Grant. 4

On January I,

2011,

Granados assumed Sackrule's former position. 5

Ashley Diaz-

In March of 2011

plaintiff received a "Low Successful" performance rating for 2010. 6
Diaz-Granados delivered the "Low Successful" performance rating to
plaintiff, but Grant rated plaintiff's performance for 2010. 7

lAppendix in Support of Defendant's Motion for Summary
Judgment ("Appendix"), attached to Docket Entry No. 22, p. 58
(Plaintiff's Deposition, p. 279).
2Defendant's Motion for Summary Judgment, Docket Entry No. 22,
p. 11 (citing Appendix at 620-55 (Sackrule Investigation».
3Id.
4Appendix at 61 (Plaintiff's
(Declaration of Grady Grant) .

Deposition,

p.

282)

and

217

5Id. at 5 (Plaintiff's Deposition, p. 26) and 217 (Declaration
of Grady Grant) .
6Id. at 61 (Plaintiff's Deposition, p. 282) and 217-18 (Grant
Declaration, pp. 2-3).
217

7Id. at 62 (Plaintiff's Deposition, p. 283).
(Grant Declaration, p. 2).

See also id. at

-2 -

-------------- -==

Following receipt of her "Low Successful
complained

of

retaliation

to

defendant's

lf

HR

rating, plaintiff
Department. a

On

August 26, 2011, plaintiff filed a Charge of Discrimination with
the Equal Employment Opportunity Commission ("EEOC") and the Texas
Workforce Commission, Number 460-2011-03748. 9 Diaz-Granados rated
plaintiff's 2011 performance as "Low Successful."lo

Plaintiff does

not disagree with her 2011 performance rating, but believes that
she "would not have been low successful had [she] not been through
ten

years

of

discrimination,

emotional

environment and all those things." l l

abuse,

hostile

work

Plaintiff remains employed by

defendant and has a positive work relationship with Diaz-Granados .12

II.

Standard of Review

Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material

facts

are

Fed. R. Civ. P. 56(c)

"genuine"

if

the

evidence

Disputes about
is

such

that

a

reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

at 68.
Information) .
ald.

See

also

id.

at

619

(Participant

The

Activity

9Defendant's Motion for Summary Judgment, Docket Entry No. 22,
p. 13.

lOAppendix at 71-72
llId. at 72
12Id. at 3 - 5

(Plaintiff's Deposition, pp. 313, 315).

(Plaintiff's Deposition, p. 315:20-23).
(Plaintiff's Deposition, pp. 17-18 and 26) .
-3-

Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment
discovery and upon motion,
showing

sufficient

to

"after adequate time for

against a party who fails to make a

establish

the

existence

of

an

element

essential to that party's case, and on which that party will bear
the burden of proof at trial."
2548,

2552

(1986).

Celotex Corp. v. Catrett, 106 S.Ct.

A party moving for

summary judgment

"must

'demonstrate the absence of a genuine issue of material fact,' but
need not negate the elements of the nonmovant's case."
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
curiam)

Little v.

(en banc)

(per

(quoting Celotex, 106 S.Ct. at 2553-2554) .

If the moving party meets this burden, Rule 56(c) requires the
nonmovant

to

depositions,

go

beyond

the

pleadings

and

answers to interrogatories,

show by affidavits,

admissions on file,

or

other admissible evidence that specific facts exist over which
there is a genuine issue for trial.
at 2553-2554).

Id. (citing Celotex, 106 S.Ct.

In reviewing the evidence "the court must draw all

reasonable inferences in favor of the nonmoving party, and it may
not make credibility determinations or weigh the evidence."

Reeves

v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000).
unsubstantiated
evidence.
denied,

assertions

are

not

competent

Forsyth v. Barr, 19 F.3d 1527, 1533
115

S.Ct.

195

(1994)

The

nonmovant

summary

judgment

(5th Cir.), cert.
is

required

to

identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim.
-4-

District courts are under no duty

rd. at 1537.

~to

sift through

the record in search of evidence to support a party's opposition to
rd.

summary judgment."

(quoting Skotak v. Tenneco Resins,

Inc.,

953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 113 S.Ct. 98
(1992)).

Factual controversies are to be resolved in favor of the

nonmovant,

~but

only when

both parties

evidence of contradictory facts."
III.

have

submitted

Little, 37 F.3d at 1075.

Analysis

Plaintiff alleges that defendant discriminated against her on
the

basis

promotional

of

sex

by

providing

opportunities

her

provided

unequal
to

her

compensation
male

peers,

and
and

retaliating against her for complaining of sex discrimination by
evaluating her 2010 performance as
both federal law

~Low

Successful" in violation of

(Title VII and the LLFPA) and state law (TCHRA).

Defendant argues that it is entitled to summary judgment on all of
plaintiff's claims either because they are time-barred or because
plaintiff is unable to cite evidence capable of establishing that
she has been subjected to sex discrimination or retaliation.
A.

Defendant Is Entitled to Summary Judgment on Plaintiff I s
Claims for Unequal Compensation and Failure to Promote

Plaintiff alleges in her Original Complaint that
11.
.despite her exceptional performance she
has, on numerous occasions, witnessed male employees that
performed the same job she and other females did, had
fewer responsibilities, less experience, and lesser
performance, paid more than her and her female peers,
promoted more rapidly, and praised and recognized much
-5-

more frequently,
receiving
compensation as a result.

additional

bonuses

and

12. Favored treatment
toward males
evidences
Defendant's discriminatory practices. However, the gap
between
male
and
female
compensation,
benefits,
recognition and promotion is
further
widened by
Defendant's long-term discriminatory technique of giving
Plaintiff and other females lower performance ratings in
annual reviews than comparable or lesser male performers,
causing further separation between what females are paid
versus males, despite superior performance history that
can be objectively measured.

15. Plaintiff's being denied promotions and pay
while other male employees with equal or lesser
performance, tenure, or any other standard of measurement
in the workplace, were and are awarded them - caused
Plaintiff to be more vocal in her complaints of disparate
treatment.
16.

Her complaints led to retaliation.

20.
Plaintiff sought help within Eli Lilly to be
treated equally, but her complaints did not draw any
investigation, but only further retaliation.
In early
2011,
as her relationship with Defendant's upper
management continued to erode, Plaintiff was eligible for
a bonus of tens of thousands of dollars.
She had
performed at an outstanding level and was clearly
qualified to receive it. However, her manager made sure
she did not by delivering her a poor review.
21. The poor review was given solely because
Plaintiff
had
consistently
complained
about
her
mistreatment and the mistreatment of other women inside
Eli Lilly & Company. 13
Defendant argues that it is entitled to summary judgment on
claims that plaintiff has asserted for unequal compensation and

13Plaintiff's Original Complaint, Docket Entry No. I, pp. 3-6
11-12, 15-16, 20-21.
-6-

-

-----------,-------------------,.

--

promotional opportunities or failure to promote because all claims
based on discrete acts that occurred before October 28, 2010, i.e.,
over 300 days before plaintiff filed her administrative charge of
discrimination, are time-barred.

Alternatively, defendant argues

that it is entitled to summary judgment because plaintiff cannot
establish a prima facie case for unequal compensation,

unequal

promotion opportunities, or failure to promote.
1.

Applicable Law
(a)

Title VII and TCHRA

Ti tIe VI I makes it "an unlawful employment practice for an
employer . . . to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment
because of
2 (a) (1).

II

42

U.S.C.

§

2000e-

The TCHRA similarly prohibits employers from discriminat-

ing against
§§

sex.

such individual's

an employee on the basis of

21.051, 21.055.

sex.

Tex.

Lab.

Code

Claims brought pursuant to Title VII and the

TCHRA are governed by the same legal and evidentiary standards.
See Reed v. Neopost USA, Inc., 701 F.3d 434, 439

(5th Cir. 2012)

(citing Mission Consolidated Independent School District v. Garcia,
372 S.W.3d 629, 633-34
v.

Williams,

" [0] ne

(Tex. 2012)).

313 S.W.3d 796,

express

purpose

of

804

the

See also Waffle House, Inc.

(Tex.

[TCHRA]

2010)

(recognizing that

is

'provide

to

for

the

execution of the policies of Title VII of the Civil Rights Act of
1964 and its subsequent amendments.' ") .
-7-

A claim of employment

discrimination
evidence.

can

be

proven

through

direct

or

circumstantial

Russell v. McKinney Hospital Venture, 235 F.3d 219, 222

(5th Cir. 2000).

If there is no direct evidence of discrimination,

courts apply the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 93 S.Ct. 1817 (1973).

See Burrell v. Dr.

Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.
2007).

The McDonnell Douglas framework requires the plaintiff to

demonstrate a prima facie case of discrimination; then shifts the
burden

to

the

defendant

to

articulate

a

legitimate,

non-

discriminatory reason for the adverse action at issue; and, if the
defendant meets its burden of production, shifts the burden back to
the plaintiff to cite evidence capable of creating a genuine issue
of material

fact

discrimination.
(b)

that

the

employer's

reason

is

a

pretext

for

Id. at 411.
Exhaustion of Administrative Remedies, Limitations,
and the Lilly Ledbetter Fair Pay Act

A Title VII plaintiff must exhaust administrative remedies by
filing a charge of discrimination with the EEOC within 180 days of
learning of
National
(2002) i

the unlawful

R.R.

conduct.

Passenger Corp.

Huckabay v.

Moore,

v.

142

42

U.S.C.

§

2000e-5(e) (1);

Morgan,

122

S.Ct.

2061,

F.3d 233,

238

(5th Cir.

2070

1998).

Because Texas has a state agency for civil rights complaints, the
Texas Workforce Commission Civil Rights Division, it is a "deferral
state"

in which Title VII extends the charge filing period for

discrimination claims to 300 days.
-8-

42 U.S.C.

§

2000e-5 (e) (1)

i

Huckabay, 142 F.3d at 238.

Filing a timely administrative charge

"is a precondition to filing suit in district court."
Books A Million,

Inc.,

296 F.3d 376, 379

denied, 123 S.Ct. 1287 (2003)

Taylor v.

(5th Cir. 2002), cert.

(quoting Dao v. Auchan Hypermarket,

96 F.3d 787, 789 (5th Cir. 1996)).

Like Title VII, "a TCHRA action

requires an exhaustion of administrative remedies that begins with
filing a complaint with the Texas Workforce Commission
[R]ights [D]ivision."

Waffle House, 313 S.W.3d at 804.

[C] ivil
In light

of worksharing agreements between the agencies and the desire to
avoid duplication of
charge

with

the

EEOC

efforts,
as

exhaustion requirements.

consider the

satisfaction of

state

filing of a

administrative

See Burgmann Seals America,

Cadenhead, 135 S.W.3d 854, 857
2004)

courts

Inc.

v.

(Tex. App. - Houston [1st Dist.],

("We hold that providing the name of the TCHR and checking

the box for simultaneous filing is the equivalent of filing with
the

TCRR.") .

In 2009 the LLFPA added the following language to Title VII's
provision governing time limits for filing administrative charges:
For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in
compensation in violation of this subchapter, when a
discriminatory compensation decision or other practice is
adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice,
or when an individual is affected by application of a
discriminatory compensation decision or other practice,
including
each
time
wages,
benefits,
or
other
compensation is paid, resulting in whole or in part from
such a decision or other practice.

-9-

42 U.S.C.

§

2000e-5(3) (A).

Congress enacted the LLFPA in response

to the Supreme Court's decision in Ledbetter v. Goodyear Tire &
Rubber Co., Inc., 127 S.Ct. 2162 (2007), which held that a plaintiff's

wage

discrimination

claim

was

untimely

because

the

administrative charge was filed more than 300 days following the
pay-setting decision.

Id. at 622.

The LLFPA was enacted to extend

the accrual period for asserting claims based on discriminatory
compensation decisions.

The LLFPA ensures that the period during

which a plaintiff may file a charge of discrimination renews each
time an employee is subjected to a discriminatory wage decision,
i . e.,

by receiving a paycheck that reflects the discriminatory

decision.

The

LLFPA addresses

the

problem identified by the

dissent in Ledbetter, that the 300-day accrual limitation strips a
plaintiff of a remedy because a plaintiff is often unaware that
discrimination motivated a compensation decision until it is too
late.

See Almond v. Unified School District No.

SOl,

665 F.3d

1174, 1182-83 (lOth Cir. 2011), cert. denied, 133 S.Ct. 317 (2012)
(the

dissent

in Ledbetter argued

that

the better rule

is

"to

trigger the accrual of a compensation discrimination claim not only
when employers intentionally discriminate in pay-setting decisions,
but

also

when

they

discriminate

in

discriminatory pay disparity").

other

ways

that

cause

a

The LLFPA deems each paycheck

issued pursuant to a discriminatory pay structure an independent,
actionable employment practice.

Id. at 1180.

See also Wang v.

Prudential Insurance Co. of America, 2010 WL 1640182, *4 (N.D. Tex.
-10-

._--_.._------------------_._------

April 2,

2010)

("The Ledbetter Act simply renews a plaintiff's

cause of action each time the plaintiff receives a discriminatory
paycheck.") .
The LLFPA also explicitly provides for "recovery of back pay
for up to two years preceding the filing of the charge, where the
unlawful employment practices that have occurred during the charge
filing period are similar or related to the unlawful employment
practices
occurred
§

with

regard

outside

to

the

discrimination

time

for

filing

that

377

Fed.Appx.

346,

(5th Cir.

Inc.,

2010)

664 F.Supp.2d

(S.D. Tex. 2009), vacated as to FLSA findings only,

2010 WL 3817150 (S.D. Tex. Sept. 28, 2010)).
S.Ct. at 2072
incidents,

U.S.C.

do not directly

350 n.2

{citing Harris v. Auxilium Pharmaceuticals,
745-46

that

See Tillman v. Southern Wood Preserving of

impact compensation.

711,

42

charge."

a

pursuing claims based upon discrete acts

Inc.,

compensation

The LLFPA does not exempt a plaintiff from

2000e-5 (e) (3) (B) .

Hattiesburg,

in

(identifying "discrete acts" as easily identifiable

such

as

refusal

to

hire,

promote, and denial of transfer)

i

No.

*10 n.6

07-2666,

See also Morgan, 122

2009 WL 4723169

termination,

failure

to

Moore v. Napolitano, Civil Action
{E.D.

La.

Dec.

3,

2009}

(stating that the LLFPA did not disturb the Supreme Court's holding
in Morgan,

122 S.Ct.

at 2072,

that a plaintiff may not file an

administrative charge with respect to discrete acts, e.g., failure
to promote

claims,

that

did not

limitations period) .
-11-

occur wi thin

the

appropriate

The LLFPA does not act to extend the time for filing claims
In Prairie View A & M University v. Chatha, 381

under the TCHRA.

S.W.3d 500, 507-09 (Tex. 2012), the Texas Supreme Court held that
the TCHRA does not incorporate the LLFPA's definition of when a
discriminatory act occurs because the Texas legislature has not
passed an analogous amendment to the TCHRA.
2.

Application of the Law to the Facts
(a)

Claims
for
Failure
to
Promote
and
Unequal
Compensation Arising from Discrete Acts that
Occurred Before October 28, 2010, Are Time-Barred

Discrete acts that occurred outside the 300-day, charge-filing
period cannot form the basis of discrimination claims for purposes
of Title VIr or the TCHRA.

Plaintiff does not dispute defendant's

assertion that since she filed her EEOC charge on August 26, 2011,
the 300-day period extends back to October 28, 2010.

Plaintiff's

claims arising from discrete acts that occurred before that date
are time-barred because the LLFPA does not

save such claims.

Tillman, 377 Fed.Appx. at 350 n.2 (citing Harris, 664 F.Supp.2d at
745-46, for its holding that the LLFPA does not apply to discrete
acts)

i

Chatha,

381 S.W.3d at 507-09

(holding that the TCHRA does

not incorporate the LLFPA's definition of when a discriminatory act
occurs because the Texas legislature has not passed an analogous
amendment to the TCHRA) .
(1)

Failure to Promote Claims Are Time-Barred

Many courts, including others in this district, have concluded
that the LLFPA does not affect the statutory period for filing
-12-

discrimination

claims

arising

from

discrete

acts

such

as

the

In Harris the court explained,

failure to promote.

A number of other district courts have distinguished
failure to promote claims from compensation claims and
found that, even after the enactment of the [LL] FPA, the
failure to promote claims are still time-barred if the
plaintiff does not file an EEOC complaint within 300 days
of the discriminatory action
[T] he Court finds
that, in the instant case, [plaintiff's] failure to
promote claims do not challenge a "compensation decision"
as contemplated by the [LL]FPA . . . The Court finds that
the
300
day
statute
of
limitations
applies
to
[plaintiff's] failure to promote claims.
664 F.Supp.2d at 745-46.

In Tillman, 377 Fed.Appx. at 349-50, the

Fifth Circuit cited Harris in support of its conclusion that the
LLFPA did not exempt the plaintiff from pursuing claims based on
the

discrete

acts

that

were

at

issue

in

that

case,

i. e.,

a

reprimand, a pay-raise exclusion, and denials of weekend overtime.
The court, therefore, concludes that any claim that plaintiff
has asserted or attempted to assert based on a failure to promote
that occurred before October 28, 2010, is time-barred and not saved
by the LLFPA because a failure to promote is an act identified by
the Supreme Court

in Morgan,

122 S. Ct.

at

identifiable, discrete discriminatory act.

2072,

as

an easily

See Hernandez v. City

of Corpus Christi, 820 F.Supp.2d 781, 795 (S.D. Tex. 2011)

(300-day

statute of limitations applied to plaintiff's failure to promote
claims)

i

Tryals

WL 743917,

*7

v.

(S.D.

Altairstrickland,
Tex.

Feb.

Ledbet ter and prior cases -

LP,

26,2010)

that

No.

H-08-3653,

2010

("The rule set out in

\ current effects alone cannot

breathe new life into prior, uncharged discrimination,' Ledbetter,
-13-

[127 S.Ct. at 2169] - is still binding law for Title VII disparate
treatment cases involving discrete acts other than pay.")
381

S.W.3d at

507-09

(TCHRA does

not

incorporate

i

the

Chatha,
LLFPA's

definition of when a discriminatory act occurs) .
(2)

Recent

Unequal Compensation

district

court

decisions

Cla~s

have

Are Time-Barred

held

that

if

an

employee's compensation during the charge filing period is affected
by a discrete discriminatory act that occurred outside the charge
filing, the LLFPA applies to the claim, allowing the clock to begin
running each time an employee's payment is dispersed.

See,~,

Vuong v. New York Life Insurance Co., No. 03-Civ.-1075 (TPG) , 2009
WL 306391, at *8-*9 (S.D.N.Y. Feb. 6, 2009).

In Vuong an employee

brought a Title VII discrimination claim after his employer decided
to allocate

a

lesser percentage

of

the

company's performance-

related compensation to him than to the employee's co-Managing
Partner.

The employee argued that the LLFPA applied to his claim

because each paycheck compensated him less than it would have had
the discriminatory decision not occurred.

Id. at *9.

The court

agreed with the employee's argument and held that the employee's
claim was the type of claim that

"is expressly declared to be

timely by virtue of the [LLFPA]."

Id.

For the LLFPA to apply to

plaintiff's claim for unequal compensation arising from performance
evaluations that occurred before October 28, 2010, plaintiff must
present

evidence

capable

of

establishing
-14-

that

the

allegedly

discriminatory performance evaluations that she received before
October

28,

2010,

affected the

compensation that

she

received

within the 300-day charge filing period.
The only evidence of unequal pay that plaintiff has presented
consists of year-end pay stubs for 2008 showing that she received
approximately $80,000 less that John Crawford. 14
presented

any

evidence

of

unequal

Plaintiff has not

promotional

opportunities.

Although plaintiff has also submitted a chart or "dashboard," which
she contends shows that over the decade she was supervised by
Sackrule she received lower evaluations than Crawford even in years
when her sales performance was better than Crawford's,15 missing
from

plaintiff's

response

to

defendant's

motion

for

summary

judgment is a citation to any evidence capable of establishing that
either the compensation or promotional opportunities she received
during the charge filing period -

i.e., up to 300 days before she

filed her formal charge of discrimination - were, as she alleges,
less than the compensation or promotional opportunities received by
Crawford or any other male peer.

Also missing is a citation to

evidence capable of establishing that plaintiff's receipt of less
compensation or promotional opportunities than Crawford or other
male

peers

during

the

charge

filing

period

was

caused

by

14Plaintiff's Response in Opposition to Defendant's Motion for
Summary Judgment ("Plaintiff's Response"), Docket Entry No. 34-1,
p. 18 (citing Docket Entry No. 31, Exhibit 5, pp. 1-2).
15See Docket Entry No. 31, Exhibit 5, p. 3.
-15-

performance evaluations that predate that period.

Absent such

evidence plaintiff is unable to raise a Title VII claim for unequal
compensation based on performance evaluations that she received
prior to the charge filing period.

Even if plaintiff were able to

present such evidence her TCHRA claim for unequal

compensation

would be time-barred because the TCHRA does not incorporate the
LLFPA's definition of when a discriminatory act occurs.

The court

concludes, therefore, that any claim that plaintiff is asserting
for

unequal

compensation

in

2008

or

for

unequal

compensation

arising from performance evaluations that she received outside the
charge
barred.

filing period,

i.e.,

before October 28,

See Wang, 2010 WL 1640182, at *4

2010,

is

time-

("[T]]he Ledbetter Act

. only has significance where a plaintiff alleges a series of
discriminatory payments.

. The Ledbetter Act simply renews a

plaintiff's cause of action each time the plaintiff receives a
discriminatory paycheck."); Chatha, 381 S.W.3d at 507-09 (holding
that the TCHRA does not incorporate the LLFPA's definition of when
a discriminatory act occurs because the Texas legislature has not
passed an analogous amendment to the TCRRA) .
(b)

Plaintiff Unable to Raise Fact Issue for Trial on
Unequal Compensation and Failure to Promote Claims

For the reasons explained in

§

III.A.2{a), above, the court

has concluded that defendant is entitled to summary judgment on
plaintiff's Title VII and TCHRA claims for unequal compensation and
promotional

opportunities,

or

failure
-16-

to

promote

arising

from

performance evaluations that she received before the charge filing
period

because

such

claims

are

time-barred.

The

court

also

concludes that the defendant is entitled to summary judgment on
these

claims because plaintiff

circumstantial

evidence

capable

is unable
of

to present direct or

raising

a

genuine

issue

of

material fact on any of them.
(1)

No Direct Evidence of Gender Discrimination

"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)

(quoting Sandstad v. CB Richard Ellis,

Inc., 309 F.3d 893,

897 (5th Cir. 2002), cert. denied, 123 S.Ct. 2572 (2003))
context of Title VII,

"In the

direct evidence includes any statement or

wri tten document showing a discriminatory motive on its face.

II

Portis v. First National Bank of New Albany, Mississippi, 34 F.3d
325, 328 (5th Cir. 1994).

See also Rubinstein v. Administrators of

Tulane Educational Fund, 218 F.3d 392, 402 (5th Cir. 2000), cert.
denied, 121 S.Ct. 1393 (2001)

(finding that a dean's testimony that

he denied a professor a pay raise because the professor filed a
discrimination suit against the university "could be no more direct
on the issue of retaliation"), and Fabela v. Socorro Independent
School District,

329 F.3d 409,

415

(5th Cir.

2003)

(describing

direct evidence as "any statement or document which shows on its
face

that

an

improper

criterion
-17-

served

as

the

basis

not

necessarily

the

sole

employment action").

basis,
However,

but

a

for

basis

the

adverse

if an inference or presumption is

required for the evidence to be probative as

to an employer's

discriminatory animus, the evidence is circumstantial, not direct.
West,

330 F.3d at 384 n.3

(citing Sandstad,

309 F.3d 897).

"A

plaintiff who can offer sufficient direct evidence of intentional
discrimination should prevail,

just as in any other civil case

where a plaintiff meets his burden."
Systems Corp.,

81 F.3d 38, 40

Nichols v.

(5th Cir. 1996)

Loral Vought

(citing Portis,

34

F.3d at 328 n.6) .
When a plaintiff presents credible direct evidence that
discriminatory animus in part motivated or was a
substantial factor in the contested employment action,
the burden of proof shifts to the employer to establish
by a preponderance of the evidence that the same decision
would have been made regardless of the forbidden factor.
Direct evidence is evidence which, if believed, proves
the fact without inference or presumption.
Brown v. East Mississippi Electric Power Assoc., 989 F.2d 858, 861
(5th Cir. 1993).
Asserting that her immediate supervisor, Wesley Sackrule, made
disparaging and discriminatory statements about women,

plaintiff

argues that Sackrule's statements constitute direct evidence that
the disparate treatment and retaliation she suffered were motivated
by

discriminatory

animus

for

her

gender. 16

As

evidence

of

16Plaintiff's Response, Docket Entry No. 30, pp. 9-10 (citing
Plaintiff's Original Complaint, Docket Entry No.1, pp. 4-5).
Although plaintiff also points to discrepancies between the amounts
of pay that she and a male colleague received in 2008 as direct
evidence of sex discrimination, id. at 19-21, discrepancies such as
(continued ... )
-18-

---- ------

Sackrule's

allegedly

discriminatory

comments,

plaintiff

cites

excerpts from her own deposition that she argues shows "trouble
from the start" of her career as a DSM reporting to Sackrule .17
Plaintiff testified that during her first year as a DSM reporting
to Sackrule,
fourth

or

i.e.,

fifth

performance,

at the end of 2001,
in

the

nation,

but

her sales team finished
despite

this

exceptional

Sackrule told her she would not be credited for it

because she had only been in the DSM position since July 1, 2001,
and, therefore, was not responsible for her team's performance. 1s
Plaintiff testified that in 2002 her team finished fourteenth
out of forty-two teams,

i. e.,

in the top third,

she served as

"Actos champ," and she was selected by her peers as " Champ

II

and

"MVP" in recognition of her leadership, ability, and teamwork, but
that instead of rating her "High Successful," Sackrule rated her
"Successful." 19

When plaintiff protested her "Successful" rating,

Sackrule responded, "Well, yeah, your results were good; but look
at these one or two things that weren't." 20

When plaintiff pressed

Sackrule about his decision to rate her "Successful" instead of
16 ( ... continued)
this are not direct but, instead, circumstantial evidence that is
analyzed under the standard established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973).
17Plaintiff's Response, Docket Entry No. 34-1, pp. 15-17.
lSId. at 16
No. 30 - 3, p. 96).

(citing

Plaintiff's

Deposition,

Docket

Entry

19Id. (citing Plaintiff's Deposition, Docket Entry No. 30-3,
pp . 1 0 3 - 05) .
2°Plaintiff's Deposition, Docket Entry No. 30-3, p. 104:23-25.
-19-

"High Successful,

II

he explained to her that her rating was relative

to that of her peers, and that if she needed more money then her
husband should go back to work. 21
Plaintiff also testified that in 2005,
could not remember exactly when -

2007,

Sackrule told a

people that she was "having one of her moments.

1122

or 2008 -

she

room full of

Plaintiff argues

that "[t] his is a common derogatory expression used in reference to
women, intended to be humorous, but inappropriate in the workplace,
particularly when spoken by a manager to one his reports in front
of her peers on numerous occasions. 1/23
In addition, plaintiff states in her declaration that
[i] t was common for Sackrule to comment on my family
situation and how Sackrule believed it interfered with my
ability to do my job.
For most of the time Sackrule
managed me, my husband did not work and stayed at home to
care for the children.
Sackrule criticized this
arrangement frequently.
Other frequent comments were "Unless you sacrifice
family for a role as a manager you will never be all that
you can be, II and "men make bet ter employees. 1124
The Fifth Circuit has explained that workplace remarks may
constitute direct evidence of discrimination if they are

1) related [to the protected class of persons of which
the plaintiff is a member]; 2) proximate in time to the
[complained-of adverse employment decision]; 3) made by
21Id. at 105:2-106:2.
22Plaintiff's Response, Docket Entry No. 34-1, p. 18
plaintiff's Deposition, Docket Entry No. 30-3, p. 155)

(citing

23Id.
24Id.

(citing Blasingame Declaration, Docket Entry No. 30-1,

p. 2).

-20-

------

-----------------

an individual with authority over the employment decision
at issue; and 4) related to the employment decision at
issue.
Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996).

If the

comments fail to meet these criteria, e.g., if they are vague and
remote in time, the speaker has no authority or influence over the
employment

decisions,

or

the

employment decision at issue,

remarks

are

not

related

to

the

then the remarks are merely stray

remarks that are insufficient to establish discrimination.

See

Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir.
2010)

("Jackson has not shown that the comment was proximate in

time to the termination or related to the employment decision, and
thus the comment cannot qualify as direct evidence.").

Although

the Fifth Circuit no longer uses the four-prong CSC Logic test when
remarks are submitted as evidence of pretext in cases based on
indirect, circumstantial evidence, the Fifth Circuit continues to
use this four-prong test
evidence

of

framework."
2003)

"when a remark is presented as direct

discrimination

apart

from

the

McDonnell

Laxton v. Gap, Inc., 333 F.3d 572, 583 n.4

Douglas
(5th Cir.

(citing Auguster v. Vermilion Parish School Board, 249 F.3d

400, 404-05 (5th Cir. 2001)).
Accepting plaintiff's assertions that the statements Sackrule
made

in 2001 and 2002 were made

in the context of

rating her

performance, they are not direct evidence of unequal compensation
based on gender discrimination because plaintiff has failed to cite
any evidence showing that either the compensation or opportunities
for promotion that she received during those years was unequal to
-21-

the compensation and opportunities for promotion received by her
male peers.

Plaintiff has failed to differentiate herself from her

male peers, and has presented no evidence of any male coworker who
was better compensated than she during these years despite having
had similar or worse performance.
The only evidence of unequal pay that plaintiff has presented
consists of year-end pay stubs for 2008 showing that she received
less pay than John Crawford. 25
attributes

to

Sackrule do

not

But the statements that plaintiff
constitute direct

evidence

that

differences between the compensation that plaintiff and Crawford
received in 2008 were attributable to discrimination because the
2001 and 2002 comments that plaintiff cites are remote in time, and

the comments that plaintiff says may have been made in 2005, 2007,
or 2008

(i.e., when Sackrule told a room full of employees that

plaintiff was "having one of her moments") were neither indicative
of gender bias
performance.

nor made

in the

context

of

rating plaintiff's

Sackrule's allegedly frequent statements that plain-

tiff would never be all that she could be unless she sacrificed her
family

for

her

role

discrimination because

as
it

a

manager
is

is

not

gender neutral

direct

evidence

of

and defendant has

submitted undisputed evidence that Sackrule made the same comment
to at least one of plaintiff's male peers. 26

25Id.

(citing Docket Entry No. 31 , Ex h'b't 5 ,pp. 1 - 2) .
l
l

26Appendix at 579 (stating that on June 24, 2010, Clayton McCoy
shared concerns regarding Sackrule's leadership style and stated,
(continued ... )
-22-

The

only

statement

of

Sackrule' s

that

could

conceivably

constitute direct evidence of gender bias is the statement that
Accepting plaintiff's contention

"men make better employees." 27

that this statement demonstrates discriminatory animus that caused
the

discrepancy

plaintiff

has

defendant's

in pay

attached

motion

for

evidenced by
to

her

the

response

summary

2008
in

judgment,

pay

stubs

opposition
defendant

lS

that

to

the

still

entitled to summary judgment because any claim based on unequal pay
in 2008 is time-barred even if the LLFPA is applied to plaintiff's
claims.

The LLFPA only provides for "recovery of back pay for up

to two years preceding the filing of the charge, where the unlawful
employment practices that have occurred during the charge filing
period are similar or related to .
side the time for filing a charge."

[those] that occurred out42 U.S.C.

§

2000e-5 (e) (3) (B).

Because plaintiff filed her charge of discrimination in August of
2011, any claim for unequal compensation occurring before August of
2009 would be time-barred regardless of whether the LLFPA applies
to her claims.
Moreover, absent an evidentiary connection between Sackrule's
comments and his evaluation of plaintiff's job performance, a factfinder would have to infer or presume that Sackrule's comments

26 ( ... continued)
inter alia, that Sackrule "questions his commitment to the business
and believes he does this b/c [he] has a large family (5 kids)").
27Plaintiff's Response, Docket Entry No. 34-1/ p. 18
Blasingame Declaration, Docket Entry No. 30-1, p. 2).
-23-

(citing

evidence an animus towards women that manifested itself in his
evaluation

of

plaintiff's

and

performance,

that

Sackrule's

evaluations of plaintiff's performance caused plaintiff to receive
compensation and promotional opportunities that were unequal to
those received by her male peers.

Because direct evidence of

discrimination is evidence that does not require inferences or
presumptions to connect allegedly discriminatory conduct with a
plaintiff's

protected

plaintiff attributes

to

characteristics,
Sackrule are

the

not

statements

direct

that

evidence

that

Sackrule's annual ratings of her performance were motivated by
animus for her gender.
Sandstad,

309

F.3d

See West,

897)

330 F.3d at 384 n.3

(recognizing

that

if

an

(citing

inference

or

presumption is required for the evidence to be probative as to an
employer's discriminatory animus, the evidence is circumstantial,
not direct) .
(2)

No Circumstantial Evidence of Discrimination

Circumstantial evidence is presented using the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green,
1817

(1973).

Under

that

analysis

the

evidence establishing a prima facie case.

plaintiff

93 S.Ct.

must

Id. at 1824.

present

If a prima

facie case is established, a presumption of discrimination arises
and the burden of production shifts to the defendant

to offer

evidence of a legitimate, non-discriminatory reason for the action
at issue.

Id.

If the defendant meets this burden, the presumption
-24-

created by the prima facie case disappears, and the plaintiff must
then cite substantial evidence showing that each of the employer's
proffered reasons was a pretext for discrimination.

Id. at 1825.

See also Reeves, 120 S.Ct. at 2106i Wallace v. Methodist Hospital
System, 271 F.3d 212, 220 (5th Cir. 2001), cert. denied, 122 S.Ct.
1961 (2002).

The plaintiff may meet his burden by citing evidence

either that the defendant' s proffered nondiscriminatory reasons are
false

or,

if

nevertheless,
action.

true,

that

his

protected

the motivating factor

for

characteristic

was,

the adverse employment

See Reeves, 120 S.Ct. at 2112.

[T]he
factfinder's
rejection
of
the
employer's
legitimate, nondiscriminatory reason for its action does
not compel judgment for the plaintiff . . . . 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.".
. In other words, "[i]t is
not enough
to dis believe the employer; the
factfinder must believe the plaintiff's explanation of
intentional discrimination."
Id. at 2107-08 (quoting St. Mary's Honor Center v. Hicks, 113 S.Ct.
2742, 2756, and 2754
Defendant

argues

(1993))
that

it

is

entitled to

because plaintiff cannot establish a

prima

summary

facie

case

judgment
for her

unequal compensation, unequal promotion opportunities, or failure
to promote claims and cannot establish that defendant's legitimate,
non-discriminatory

reasons

for

her performance

evaluations

failure to be promoted were pretexts for gender discrimination.

and
To

establish a prima facie case of discrimination based on disparate
-25-

~~~--~--

------------

..

treatment a plaintiff must show that she is a member of a protected
class,

is qualified for the job she held or sought,

suffered an

adverse employment action, and received less favorable treatment
than a similarly situated individual outside her protected class.
See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
Defendant does not dispute that plaintiff belongs to a protected
class, was qualified for her position as District Sales Manager,
and suffered adverse employment actions in the form of unfavorable
performance evaluations.

Instead, defendant argues that plaintiff

is unable to establish the fourth prong of a prima facie case for
unequal compensation, unequal promotion opportunities, or failure
to

promote

because

plaintiff

cannot

cite

evidence

capable

of

establishing that she was treated less favorably than any male peer
in a nearly identical situation who was paid more,

promoted,

or

provided more favorable opportunities for promotion than she.
Plaintiff disputes defendant's argument that she has failed to
establish the fourth prong of a prima facie case as
simply not true. Blasingame will not publicly disclose
any information about her male peer herein, but has filed
with her reply under seal as Exhibit 5, three pages of
documents.
The first of the documents reveals
BLASINGAME's total compensation for 2008.
(Id.)
The
second page of the document reveals her male peer's total
compensation for 2008.
(Id.)
The third page is a ten
(10) year "dashboard,
an internal tool of Lilly, that
reflects Blasingame and her peer's ten year, totally
objective sales performance rankings.
(Id.)
These are
the hard numbers of actual sales by each employee and
reveal their respective rankings.
(Id.)
These ratings
show the observer, at the very least, three interesting,
material facts that leave unanswered questions of
material fact for the jury.
(Id.)
Blasingame and her
peer are nearly identical in their status and tenure at
/I

-26-

Lilly.
The mere fact they are ranked together on an
internal Lilly chart for the last 10 years confirms such.
The respective pages showing the compensation of the two
have a line item termed "performance award".
(Id.) For
BLASINGAME, the amount is $41,200.88.
(Id.)
For her
male counterpart the amount is $67,382.72.
(Id.)
What
is the significance of this? These amounts are based on
2007 performance alone that paid in 2008, as reflected on
these two documents.
(Id.)
However, the "dashboard"
reveals that Blasingame outperformed her male peer in
objective sales numbers in 2007.
(Id.)
Her final
ranking was number 5, putting her in the top 3%.
(Id.)
Her male counterpart's final ranking number 32, putting
him in the top 21%.
(Id.)
Yet, the male was paid more
than $26,000 more than Blasingame.
(Id.)
In addition,
the reader will note, despite Blasingame's superior
objective sales performance in 2007, her male peer
received an "E" rating, which is the highest rating and
stands for "Exemplary" while Blasingame received the
lesser rating of "S" which stands for "Successful".
(Id.)28
In order to establish the fourth prong of her prima facie
case,

i . e.,

that

others

similarly

situated

were

treated

more

favorably, plaintiff and her alleged comparator must be similarly
si tuated

with

respect

responsibilities,

to

their

qualifications,

job
and

experience.

Washington Mutual Bank, 500 F.3d 344, 353
denied,

128 S. Ct.

1124

(2008).

titles,

job

duties,

Berquist

v.

(5th Cir. 2007), cert.

Plaintiff does not dispute that

Crawford held a different job title,

i.e., Senior District Sales

Manager instead of District Sales Manager, that the difference in
job title entailed differences in qualifications and experience
that made Crawford eligible for higher raises,29 or that Crawford's

28Id. at 20.
29Appendix at 209 (Deposition of Kendall Nichols at p. 61:7-21
(acknowledging that promotion from Sales Manager to Senior Sales
(continued ... )
-27-

performance was better than hers. 30

Plaintiff has not presented

evidence capable of establishing that Crawford or any other male
peer received promotion opportunities
received.

that

surpassed those she

Moreover, defendant has presented undisputed evidence

that several male District Sales Managers had performance ratings
similar to plaintiff's, yet received less compensation than she. 31
In light of this undisputed evidence and plaintiff's inability to
cite

any

evidence

capable

of

establishing

that

she

and

John

Crawford were similarly situated for purpose of her discrimination
claims, the court concludes that defendant is entitled to summary
judgment

on

plaintiff's

claims

for

unequal

compensation

and

promotional opportunities, or failure to promote because plaintiff
has failed to satisfy the fourth prong of a prima facie case for
such claims.

B.

Defendant Is Entitled
Retaliation Cla~

to

Summary

Judgment

on

Plaintiff's

Defendant argues that it is entitled to summary judgment on
plaintiff's claim that the "Low Successful" performance evaluation
she received in March of 2011 represents retaliation for having
cont inued)
Manager was a "within-job promotion" so that "the person's
doesn't change but their title changes and they are on a
potentially different pay scale")).
29 ( • • •

job

30Id. at 25 (Plaintiff's Deposition, p. Ill: 17-20 (acknowledgin that Crawford's performance was at times better than her
performance)) .
31Defendant's Motion for Summary Judgment, Docket Entry No. 22,
p. 8 (citing Appendix at 9, 455-515.4)
-28-

complained of gender discrimination
establish a prima facie case.

because plaintiff is unable to

Alternatively, defendant argues that

it is entitled to summary judgment because it had legitimate, nondiscriminatory reasons for evaluating plaintiff's 2010 performance
as "Low Successful," and that plaintiff has failed to cite evidence
from which a reasonable fact-finder could conclude that its nondiscriminatory reasons were pretexts for retaliation.
1.

Applicable Law

Title VII makes it unlawful "for an employer to discriminate
because

against any of his employees

[the employee]

opposed any practice made an unlawful employment practice .

has
or

because [the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation,
hearing"

under Title VII.

42 U.S.C.

§

proceeding,

2000e-3 (a) .

or

The TCHRA

similarly provides that
[a] n employer
commi ts an unlawful employment
practice
if
the
employer
retaliates
or
discriminates against a person who, under this chapter:
1) opposes a discriminatory practicei 2) makes or files
a chargei 3) files a complainti or 4) testifies, assists,
or participates in any manner in an investigation,
proceeding, or hearing.
Tex. Lab. Code
that

§

21.055.

The Texas Supreme Court has recognized

"[t] he TCHRA was enacted to address the specific evil of

discrimination and retaliation in the workplace,
coordinate

and

conform

with

federal

retaliation laws under Title VII."
S.W.3d 147, 153-55 (Tex. 2008)

as well as to

anti-discrimination

City of Waco v.

Lopez,

and
259

"Although [Texas courts] consider
-29-

the TCHRA's plain language and state precedent in interpreting the
statute,

[they] also look to federal law for interpretive guidance

to meet the legislative mandate that the

[TCHRA]

is intended to

'provide for the execution of the policies of Title VII .
its subsequent amendments.'"
District, _

. and

Crutcher v. Dallas Independent School

S.W.3d _ , 2013 WL 4517002, *2 (Tex. App. - Dallas,

Aug. 26, 2013)

(quoting Tex. Lab. Code

§

21.001(1)).

Absent direct

evidence of retaliation, both federal and state courts apply the
McDonnell Douglas burden shifting analysis.

See McCoy, 492 F. 3d at

556-57; Crutcher, ___ S.W.3d at ___ , 2013 WL 4517002 at *2-*3.
To establish a prima facie case of retaliation plaintiff must
show that
(2)

(1)

she engaged in an activity protected by Title VII;

she experienced an adverse employment action following the

protected activity; and (3) a causal connection exists between the
protected activity and the adverse employment action.

McCoy, 492

F.3d at 556-57; Crutcher, ___ S.W.3d at ___ , 2013 WL 4517002, at
*3.

Establishment of a prima facie case gives rise to an inference

of retaliation.

Montemayor v. City of San Antonio, 276 F.3d 687,

692 (5th Cir. 2001).

This inference, in turn, shifts the burden of

production to the defendant who must then articulate a legitimate,
nonretaliatory reason for the challenged employment action.

McCoy,

492 F.3d at 557; Crutcher, ___ S.W.3d at ___ , 2013 WL 4517002, at
*3.

Once a defendant articulates such a reason the inference of

retaliation raised by the prima facie showing drops from the case.
Montemayor, 276 F.3d at 692.

At this juncture the plaintiff bears
-30-

the burden of establishing that the employer's stated reason is a
pretext for the real retaliatory purpose.
S.W.3d at

Crutcher,

__ I

McCoy, 492 F.3d at 557;
If the

2 0 13 WL 4 5 1 7 0 02 , at *3.

employee fails to prove, or raise a genuine dispute of material
fact that the employer's stated reason is a pretext for retaliatory
conduct, the defendant is entitled to summary judgment.
492 F.3d at 561-62.
WL 4517002

S.W.3d at

See also Crutcher,

See McCoy,
__ I

2013

(granting defendant's motion for summary judgment upon

concluding that plaintiff failed to establish a causal connection
between

her

protected

activity

and

the

defendant's

adverse

employment action) .
2.

Application of the Law to the Facts

Defendant argues that it is entitled to summary judgment on
plaintiff's

retaliation

claim because

plaintiff

has

failed

to

present any evidence capable of establishing that there is a causal
connection between her protected activity and the "Low Successful"
evaluation that she received for her 2010 performance.

Citing her

own declaration, plaintiff responds that she
complained to Lilly Human Resources about her Director,
Sackrule, in October 2010 . . . . Lilly gave Blasingame a
Low Successful rating shortly thereafter.
. Lilly's
proffered reason Blasingame was given a Low Successful
rating for her 2010 performance, was her "lackluster
Cymbalta sales."
. Their proffered reason is simply
a pretext for retaliation.
All of the area teams had
lackluster Cymbalta sales in 2010.
(See Defendant's
dashboard ranking for the area team's Cymbalta sales
results and rankings attached hereto under seal as
Exhibit 6 and Blasingame Declaration at p.
2.)
Blasingame managed the Houston Team listed therein . . . .
-31-

In 2010, in this area of the country, only one district
made its Cymbalta goal at 102%.
Two districts
finished
at
99%
and
two
districts,
including
Blasingame's, finished at 98%.
Five of the
districts finished at 97%.
This means only one
district met target, Tulsa, OK.
. Blasingame's team
finished number four out of ten in 2010 for Cymbalta
sales in the area.
All of the District Sales
Managers who tied with Blasingame, or finished under her,
on Cymbalta performance did not receive Low Successful,
or lower, ratings . . . . The only other person to receive
a Low Successful rating was Clayton McCoy and he finished
below
Blasingame
in
Cymbal ta
sales
and
overall
sales . . . . Regarding overall sales goals for 2010, only
one district in Blasingame's area met that goal by
finishing at 101%.
The next three districts
finished at
99%,
including Blasingame's,
and six
districts finished below that.
Therefore,
Blasingame's district tied for second place out of ten
districts in 2010 for overall sales.
This pure data establishes a significant material
question of fact that precludes summary judgment on
Blasingame's retaliation claim. 32
Defendant replies that
there is no admissible evidence that other managers
failed to meet their Cymbalta goals.
While Plaintiff
submits records purporting to demonstrate other managers'
Cymbalta sales, such records are not authenticated, are
not proper evidence, and in any case are immaterial to
the overall reasons for Blasingame's 2010 performance
rating . . . Lilly objects to the Court's consideration of
this alleged "evidence" of other managers' sales.

Plaintiff fails to address each of Lilly's stated reasons
for her "Low Successful" rating in 2010, such as her
at ti tude toward failure to meet her Cymbal ta quota.
Plaintiff instead focuses on just one aspect of her 2010
performance and ignores the other considerations relevant
to her overall job performance.

32Plaintiff's Response, Docket Entry No. 34-1, pp. 21-22
(citing Declaration of Patti A. Blasingame, Docket Entry No. 30-1,
p. 2). See also Docket Entry No. 31, Exhibit 5.
-32-

Specifically,
in
the
Response,
Plaintiff
mischaracterizes Lilly's reason for her "Low Successful"
rating as being due solely to her failure to hit her
sales target for Cyrnbalta.
As Grady Grant's uncontroverted declaration makes clear, however, Plaintiff's "Low
Successful" rating was a result not only of her failure
to meet target on Cyrnbalta, it was also a result of her
failure to meet overall sales targets and her laissezfaire attitude towards her failure to make her quota.
(APP 217).
Thus, she cannot show that any alleged
retaliation was a
"but for"
cause for her "Low
Successful" rating, and Lilly is entitled to summary
judgment.33
(a)

Plaintiff Has Established Causal Connection Element
of a Prima Facie Case

A plaintiff

alleging

retaliation

may

satisfy

the

causal

connection element of a prima facie case by showing "[c] lose timing
between an employee's protected activity and an adverse action
against him."

McCoy,

492 F.3d at 562.

See also Crutcher, ____

S.W.3d at ___ , 2013 WL 4517002, at *7 ("temporal proximity between
a protected act and an adverse employment action may be evidence of
a causal connection 'when they are separated by weeks, as opposed
to months or years"')
No.

01-08-00807-CV,

(quoting Perry v.

University of Houston,

2009 WL 3152166, at *5

[1st Dist.] Oct. I, 2009, no pet.).

(Tex. App. -

Houston

"The cases that accept mere

temporal proximity between an employer's knowledge of protected
activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the

33Defendant's
Supplemental
Reply
Brief
in
Support
of
Defendant's Motion for Summary Judgment, Docket Entry No. 37,
pp. 11-12 (citing Declaration of Grady Grant, Appendix at p. 217).
-33-

temporal proximity must be
District v.

Breeden,

'very close.'

121 S.Ct.

1508,

Clark County School

If

1511

The

(2001).

Fifth

Circuit has found that "'a time lapse of up to four months' may be
sufficiently close,1f Feist v.

Louisiana,

Department of Justice,

Office of the Attorney General, ___ F.3d ___
(5th Cir. Sept. 16, 2013)
354

I

2013 WL 5178846, *3

(citing Evans v. Houston, 246 F.3d 344,

(5th Cir. 2001)), but that "a five month lapse is not close

enough without other evidence of retaliation. 1f
v.

Mississippi Power

2002)) .

&

Light Co.,

Id.

278 F.3d 463,

(citing Raggs
472

(5th Cir.

Other evidence of retaliation may include an employment

record that does not support the adverse action at issue, or an
employer's departure from typical policies and procedures.

Id.

(citing Schroeder v. Greater New Orleans Federal Credit Union, 664
F.3d 1016,

1024

(5th Cir. 2011)).

between plaintiff' s
human resource

complaint

department

of

Here,

the temporal proximity

discrimination

in October of

issuance of plaintiff's "Low Successful

If

2010,

to

defendant' s

and defendant's

performance evaluation for

2010 in March of 2011 is somewhere between four and five months.
The court concludes that this temporal proximity is close enough to
establish a prima facie case of retaliation under both Title VII
and the TCHRA.
(b)

Plaintiff Has Not Raised Fact Issue as to Pretext

The court concludes that defendant is entitled to summary
judgment on plaintiff's retaliation claim because plaintiff has
-34-

---------------_.

-----------

failed to cite admissible evidence capable of raising a fact issue
as to whether defendant's stated reasons for her "Low Successful"
evaluation were pretexts for retaliation.

Plaintiff argues that

the "Low Successful" evaluation she received in March of 2011 was
a pretext for retaliation because other District Sales Managers
with worse sales records received higher evaluations, and the only
other person to receive a

"Low Successful"

evaluation finished

below her in both Cymbalta and overall sales.

In support of this

argument plaintiff cites a table or "dashboard" that purports to
show comparative sales figures for plaintiff and some of her peers
for

the years

2001-2010

that

is

included in Exhibit

5 to the

response she filed to defendant's motion for summary judgment. 34
Defendant

argues

that

the

"dashboard"

and

the

sales

figures

reflected on it are inadmissible because they are unauthenticated
and, therefore, unreliable.
Federal Rule of Evidence 901(a) provides that, "[t]o satisfy
the

requirement

of

authenticating

or

identifying

an

item

of

evidence, the proponent must produce evidence sufficient to support
a

finding that the item is what the proponent claims it is."

Documents that are not properly authenticated are not admissible
and should not

be

considered

summary

judgment.

Wetzel,

410 Fed.Appx.

See

in connection with a

Orthodontic

795,

799 n.1

Centers

of

-35-

Texas,

(5th Cir. 2011)

34See Docket Entry No. 31, Exhibit 5, p. 3.

motion for
Inc.

v.

(per curiam)

(citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192
Cir.

1991),

(5th

for its holding that documents submitted as summary

judgment evidence must be authenticated).

The Federal Rules of

Evidence do not require conclusive proof of authenticity, but the
proponent

of

a

document

must

present

"evidence

sufficient

to

support a finding that the item is what the proponent claims" as a
prerequisite to admission.

Cramer v.

Fed.Appx.

Cir.

461,

464

(5th

NEC Corp.

2012)

of America,

(citing

496

McConathy

v.

Dr. Pepper/Seven Up Corp., 131 F.3d 558, 562 (5th Cir. 1998)).

"It

is within the court's discretion to exclude evidence that has not
been properly authenticated."
L.L.C.

v.

CFS

La.

Id.

Midstream Co.,

(citing R.R.
428

Management Co. ,

F.3d 214,

217

(5th Cir.

2005) ) .
The "dashboard" of sales figures on which plaintiff relies as
evidence

that

defendant's

reasons

for

her

"Low

Successful"

evaluation are pretextual is not authenticated and bears no indicia
of reliability.

For example, the "dashboard" is not on a page that

includes any mention of
etc.,

the defendant,

e.g.,

logo,

letterhead,

and the last names of several of the people listed in the

first column are missing.

Although plaintiff restates the sales

figures reflected on the "dashboard"

ln her sworn declaration, 35

plaintiff has failed to cite any evidence from which a fact-finder
could reasonably conclude either that she has personal knowledge of

35Declaration of Patti A. Blasingame, Docket Entry No.
p. 2.
-36-

30-1,

the Cymbalta and/or general sales figures that she attributes to
other District Sales Managers, or that a person in her position
would

have

such

personal

Accordingly,

knowledge.

the

court

concludes that neither the "dashboard" of comparative sales figures
included in Exhibit 5 to plaintiff's response to defendant's motion
for

summary

figures

judgment

reflected

admissible

nor plaintiff's

on

evidence

the

"dashboard"

for purposes

motion for summary judgment.

restatement

of

in

her

of

the

sales

declaration

ruling on the

is

defendant's

See Fed. R. Evid. 901(a).

Apart from the evidence of sales figures and annual ratings
contained in the

"dashboard," plaintiff has failed to cite any

evidence showing that she was treated differently than her male
peers

with

performance.

regard

to

the

rating

she

received

for

her

2010

Nor has plaintiff presented any evidence capable of

refuting defendant's evidence that her 2010 rating was made by
Grant,

not

by

Sackrule

the

manager

discriminatory animus towards women.

she

contends

harbored

Without such evidence plain-

tiff is unable to raise a genuine issue of material fact for trial
on her retaliation claim.
Moreover, even if the court were to consider the sales figures
reflected on the "dashboard" as admissible, the court would still
conclude that plaintiff has failed to raise a genuine issue of
material fact for trial on her retaliation claim.
Plaintiff's contention that the "Low Successful" evaluation
that she received for 2010 was retaliatory is based solely on the
fact that her 2010 rank, i.e., sales figures, were the same as John
-37-

Crawford's, but Crawford received an "Exemplary" rating while she
received a "Low Successful" rating.
§

III.A.2 (b) (2),

above,

the

But for the reasons stated in

court

has

already

concluded

that

plaintiff has failed to cite evidence capable of establishing that
she and John Crawford were similarly situated.

Moreover, plain-

tiff's argument fails to acknowledge that defendant has presented
undisputed

evidence

that

the

annual

rating

complains was not based solely on rank,

about

which

she

i.e., sales figures, but·

also on other criteria for which plaintiff

fails

to offer any

evidence capable of establishing that her performance was similar
to that of John Crawford's performance.

Nor has plaintiff cited

any evidence showing what, if any, disparity in pay between her and
John Crawford was caused by their disparate 2010 ratings.

Because

plaintiff has failed to offer evidence capable of establishing that
defendant's stated reasons for rating her 2010 performance as "Low
Successful" were pretexts for retaliation, the court concludes that
defendant is entitled to summary judgment on the retaliation claims
that plaintiff has asserted under both Title VII and the TCHRA.
IV.
For

the

reasons

Conclusions

explained

above,

Defendant's

Motion

for

Summary Judgment (Docket Entry No. 22) is GRANTED.
SIGNED at Houston, Texas, on this

2013.

SIM LAKE
UNITED STATES DISTRICT JUDGE
-38-