REVISED
United States Court of Appeals,
Fifth Circuit
No. 96-11348
Summary Calendar.
Frances E. WALTON, Plaintiff-Appellant,
v.
BISCO INDUSTRIES, INC., Defendant-Appellee.
Aug. 19, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Frances E. Walton appeals a summary judgment on her race and
sex discrimination claims brought pursuant to title VII of the
Civil Rights Acts of 1964, 42 U.S.C. § 2000e et seq. Finding no
error, we affirm.
I.
Walton, a black female, was employed beginning in September
1990 as a Cell Manager at Bisco Industries, Inc. ("Bisco"). Cell
Managers are expected to obtain a minimum annual net profit of 6%.
During her first year, however, Walton achieved a net profit of
only 0.3%. Bisco counseled Walton and indicated that she needed to
improve.
After Walton failed to meet the profit target in her second
year, she was placed on a ninety-day probationary period in July
1
1992 and was required to achieve break-even bottom line net income.
When she failed to do so, she was terminated. During her two-year
tenure at Bisco, sales in the Texas Cell declined by more than
$300,000.
Walton was replaced by a white male and filed a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC"). After the EEOC determined that Walton had not been
discriminated against impermissibly, she filed the instant action,
alleging that she was terminated because of her sex and race. The
district court granted summary judgment for Bisco, finding that,
although Walton had alleged sufficient facts to create a genuine
issue of material fact regarding whether Bisco's proffered reason
for her termination was pretextual, she had failed to put forth any
evidence to support her claim that Bisco had intentionally
discriminated.
II.
Walton argues that the district court erred in granting
summary judgment after finding that she had produced evidence
suggesting that Bisco's proffered reason for her termination was
pretextual. According to Walton, "it is clear that once the
District Court had determined that Walton had shown a prima facie
case, and created a genuine issue of fact as to whether Bisco's
proffered reasons for her termination were in fact the motivation
for its decision, it had no choice but to submit the case to the
jury."
We review a summary judgment de novo. See Hanks v.
2
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir.1992). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." FED.R.CIV.P. 56(c).
The parties do not contest the proper allocation of burdens of
production in employment discrimination cases: First, the
plaintiff must establish a prima facie case of discrimination;
second, if he is so successful, the defendant must articulate some
legitimate, nondiscriminatory reason for the challenged employment
action; and third, if the defendant is so successful, the
inference of discrimination raised by the prima facie case
disappears, and the plaintiff then must prove, by a preponderance
of the evidence, both that the defendant's articulated reason is
false and that the defendant intentionally discriminated. See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742,
2748-49, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 252-55, 101 S.Ct. 1089, 1093-94, 67
L.Ed.2d 207 (1981). If the defendant has successfully rebutted the
presumption created by the prima facie case—that plaintiff's
rejection was racially motivated—the factual inquiry proceeds to a
new level of specificity. Id. at 255, 101 S.Ct. at 1094.
To sustain a finding of impermissible discrimination, the
evidence taken as a whole must create (1) a fact issue regarding
whether each of the employer's stated reasons was what actually
3
motivated it and (2) a reasonable inference that race or sex was a
determinative factor in the actions of which plaintiff complains.
See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996)
(en banc). Although the evidence necessary to support an inference
of discrimination may vary from case to case, " "if the evidence
put forth by the plaintiff to establish the prima facie case and to
rebut the employer's reasons is not substantial, a jury cannot
reasonably infer discriminatory intent.' " Ontiveros v. Asarco
Inc., 83 F.3d 732, 734 (5th Cir.1996) (quoting Rhodes, 75 F.3d at
994).
The plaintiff cannot succeed by proving only that the
defendant's proffered reason is pretextual. See St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2751, 125 L.Ed.2d
407 (1993).1 Rather, "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. (emphasis
in original).2
III.
As Bisco concedes that Walton has made out her prima facie
case, we proceed to investigate Bisco's proffered reason for her
1
See also Polanco v. Austin, 78 F.3d 968, 976 (5th Cir.1996)
("The Supreme Court in Hicks explained that a plaintiff must prove
both that his employer discriminated against him and that
discrimination was a motivating factor in the treatment the
plaintiff received.").
2
See also Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 n.
8 ("But St. Mary's requires more of the plaintiff than simply
negating the employer's defense. The St. Mary's Court was clear in
its directive: the employee has the burden of persuasion at
trial.").
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termination, i.e., that she failed to meet the required profit
margin in two successive years and after having been placed on a
probationary period. During her tenure, sales in the Texas Cell
declined by over $300,000. This is a sufficient, nondiscriminatory
reason for termination.
To support her pretext argument, Walton asserts that two white
male Bisco employees who previously held her position as Cell
Manager also failed to show a profit but had not been terminated.
According to Walton, one such manager was promoted, while the other
resigned.
Bisco counters that the promoted manager in fact improved the
office's performance in other respects, while the resigned manager
did generate profits. Bisco argues further that it terminated a
third white male Cell Manager in the Arlington office for failing
to show a profit, and that it had terminated five other sales
managers company-wide, all of whom were white and four of whom were
male, for failing to meet the profit margin requirement.
We assume arguendo that Walton's evidence is sufficient to
create a genuine issue of material fact concerning whether Bisco's
proffered reason for her termination was in fact the actual reason.
Walton urges therefore that our inquiry is complete, as St. Mary's
requires nothing more to survive a motion for summary judgment. We
disagree.
In St. Mary's, the Court reviewed the McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
burdens of production, noting that once the plaintiff has satisfied
5
his burden to make out the prima facie case, McDonnell Douglas
compels the defendant to produce evidence that the adverse
employment actions were undertaken for a legitimate,
nondiscriminatory reason. See St. Mary's, 509 U.S. at 506-07, 113
S.Ct. at 2746-47.3 Once the defendant has presented evidence that,
"if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action," the shifted burden of production becomes "irrelevant."
Id. at 507, 113 S.Ct. at 2747 (emphasis in original). "The
plaintiff then has the full and fair opportunity to demonstrate ...
that the proffered reason was not the true reason for the
employment decision and that race was." Id. at 507-08, 113 S.Ct.
at 2746-47 (internal quotes and citation omitted) (emphasis added).
Although the St. Mary's Court noted that "rejection of the
proffered reasons will permit the trier of fact to infer the
ultimate fact of intentional discrimination," it continued that
rejection of the proffered reasons does not compel judgment for the
plaintiff. Id. at 511, 113 S.Ct. at 2749 (emphasis in original) &
n. 4 ("Even though (as we say here) rejection of the defendant's
proffered reasons is enough at law to sustain a finding of
discrimination, there must be a finding of discrimination."
(emphasis in original)). Thus, "nothing in law would permit us to
3
Although the Court in St. Mary's was reviewing a motion for
judgment as a matter of law following a jury verdict in favor of
the plaintiff, whereas in the instant case we are reviewing a grant
of summary judgment, the different procedural postures does not
affect our inquiry, given that the standards of FED.R.CIV.P. 50 and
56 are the same. See Rhodes, 75 F.3d at 993 n. 4.
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substitute for the required finding that the employer's action was
the product of unlawful discrimination, the much different (and
much lesser) finding that the employer's explanation of its action
was not believable." Id. at 514-15, 113 S.Ct. at 2750-51.
We have read St. Mary's therefore correctly to require that
the plaintiff do more than simply negate the employer's proffered
reasons: The plaintiff retains the burden of production with
respect to the alleged impermissible discrimination. See
Bodenheimer, 5 F.3d at 959 n. 8.4 In Rhodes, we did not diverge
from the Bodenheimer construction of St. Mary's, but rather
reiterated that "[t]he employer, of course, will be entitled to
summary judgment if the evidence taken as a whole would not allow
the jury to infer that the actual reason for the discharge was
discriminatory." Rhodes, 75 F.3d at 994.
Although we recognized in Rhodes that there may be a certain
subset of cases in which the trier of fact may be able to infer
discriminatory intent from "substantial evidence that the
employer's proffered reasons are false," id., such does not alter
the plaintiff's ultimate burden of persuasion.
The evidence may, for example, strongly indicate that the
employer has introduced fabricated justifications for an
employee's discharge, and not otherwise suggest a credible
nondiscrimination explanation.
By contrast, if the evidence put forth by the plaintiff
to establish the prima facie case and to rebut the employer's
4
To the extent that Walton believes that we have construed St.
Mary's incorrectly, we note that absent an intervening Supreme
Court decision or a decision by this court sitting en banc, we are
bound by a prior panel's interpretation. See Federal Deposit Ins.
Corp. v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993).
7
reasons is not substantial, a jury cannot reasonably infer
discriminatory intent.
Id.5 We must ask therefore whether, assuming that Walton has
presented sufficient evidence from which a jury could conclude that
Bisco's proffered reason for her termination was pretextual, that
evidence, plus whatever additional evidence put forth by Walton, is
sufficient for a jury to infer that discrimination was the true
reason for her allegedly disparate treatment.
Separate from her pretext evidence, Walton has offered
nothing to suggest that impermissible discrimination underlies her
termination. First, Walton argues that Bisco prevented her from
taking any actions that may have improved her financial performance
and that she "was restricted to doing what her supervisors
instructed her to do." Even if believed, this evidence does not
support an inference of impermissible sex or race discrimination,
absent additional evidence demonstrating that Walton, as a black
female, was treated differently from others similarly situated at
Bisco.
Second, Walton contends that the fact that she was pregnant
at the time she was terminated indicates impermissible sex
discrimination. No one at Bisco with supervisory authority to fire
her had been apprised of her pregnancy, however. Not only does
Walton concede that she had not told Boush that she was pregnant
5
Accord Polanco, 78 F.3d at 976-77 ("If the factfinder's
verdict apparently rejects the defendant's proffered reason, enough
evidence must exist in the record for the factfinder to infer that
discrimination was the true reason for the disparate treatment.").
8
prior to her discharge, but she also does not even allege that any
Bisco supervisor had knowledge of her pregnancy.
Finally, Walton ponders why she was not simply demoted to a
sales representative position rather than being terminated from
Bisco altogether. According to Walton, "[t]his sort of decision is
clearly not a good use of Bisco's resources." Be that as it may,
we do not view the discrimination laws as vehicles for judicial
second-guessing of business decisions. See Guthrie v. Tifco
Indus., 941 F.2d 374, 378 (5th Cir.1991).
Because Walton has failed to produce any evidence of unlawful
discrimination separate from her pretext evidence, we must ask
whether hers is within the Rhodes subset of cases in which "[a]
jury may be able to infer discriminatory intent ... from
substantial evidence that the employer's proffered reasons are
false." Rhodes, 75 F.3d at 994. We do not believe that this is
such a case; the evidence put forth to rebut Bisco's reason for
her termination is not substantial enough to permit an inference of
discrimination. See id.
Walton does not dispute that she failed to attain the 6%
profit margin. She admits that she was made aware of the
requirement and that she was also counseled by Boush in July 1992
regarding her inability to meet the FY '91 and FY '92 sales and
financial projections. She was placed on probation and was made
aware that failure to meet the conditions of the probation would
cause Bisco to evaluate her future employment. Thus, the proffered
reason for Walton's termination—her failure to meet the required
9
financial margins—was not created post hoc, but was a known
condition of continued employment.
With respect to Dan McCarthy, a former Cell Manager who Walton
alleges also suffered losses as Cell Manager but was promoted to
Area Manager, Bisco responded (and Walton does not contest) that he
had been promoted based upon his work in improving the office's
performance in other respects. Thus, the McCarthy evidence
demonstrates that Cell Managers who fail to generate profits yet
contribute to the improvement of the company in other respects are
candidates for promotion, whereas others, such as Walton, who fail
both to generate sufficient profits and to contribute to the firm
in other ways are candidates for termination.
It is not discrimination to treat differently situated
persons differently. Steve Crabtree, the second Cell Manager who
Walton contends was not fired for failing to achieve the profit
requirement, resigned voluntarily in his second year after failing
to attain the requirement. His voluntary resignation does not
permit the inference that, had he failed to resign, he would have
been allowed to remain as Cell Manager.
Furthermore, Walton does not contest Bisco's evidence that it
had fired, firm-wide, five other Cell Managers, all of whom were
male and four of whom were white, for failure to attain the profit
requirement, nor that another white male in the Arlington office
had been fired for the same reason.6 Finally, when asked
6
Walton disputes only whether the Arlington Cell Manager in
fact occupied that position during the years alleged by Bisco.
10
repeatedly during her deposition why she believed that she had been
discriminated against, Walton was unable even to allege any
specific facts.7
IV.
Walton has failed to produce either substantial evidence of
pretext from which a jury could infer discriminatory intent or
other evidence creating a reasonable inference that her sex or race
7
Walton testified as follows:
Q: What facts made you think you were discharged from
employment because of your race?
A: Because of the ongoing process that Steve Boush took
me through, not just the day of termination, the
ongoing.
Q: What ongoing process?
A: The ongoing of the way he treated me, the way he
talked down to me, the way he spoke to me, the tone
in which—that he used with me.
Q: How did he treat you differently than other white
sales managers?
A: I don't know how he treated other managers in other
offices.
Q: What did he say to you that leads you to believe that
race is the reason you were discharged from Bisco?
A: I don't recall.
Q: Other than your perception that he talked down to
you, what facts lead you to believe that you were
discharged from employment because of your race?
A: I don't recall.
Q: How about your sex? What leads you to believe you
were discharged from employment because of your
sex?
A: I don't recall.
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was a determinative factor in Bisco's decision to terminate her.
The judgment, accordingly, is AFFIRMED.
12