IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-10655
Summary Calendar
____________________
JANET TIMMERMAN,
Plaintiff-Appellant,
v.
IAS CLAIM SERVICES INCORPORATED,
Defendant-Appellee.
________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-16-R)
_________________________________________________________________
February 20, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Janet Timmerman appeals the district
court’s grant of summary judgment in favor of defendant-appellee
IAS Claim Services, Inc. on her claims of age discrimination,
reverse race discrimination, and retaliation. We affirm the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
judgment of the district court.
I. FACTUAL & PROCEDURAL BACKGROUND
In September 1993, defendant-appellee IAS Claim Services,
Inc. (IAS) hired plaintiff-appellant Janet Timmerman as a
temporary employee in its accounting department. In May 1994,
Timmerman resigned and accepted a position at another company,
but within approximately two weeks she returned to her previous
temporary position at IAS.
In August 1994, IAS reorganized its accounting department in
a manner that included the elimination of some temporary
accounting positions and the creation of permanent ones. On
August 30, 1994, IAS notified Timmerman in writing that her
services would not be required after September 15, 1994. IAS
indicated that Timmerman was terminated because she was
overqualified for the available permanent position and her
temporary position was being eliminated.
On September 2, 1994, however, Timmerman received another
letter informing her that she was being terminated as of that
day. The letter indicated that the reason for her early
termination was that she had conducted herself in an
unprofessional manner and disrupted the department by complaining
to her supervisor, Leigh Walk, and to other employees that she
was being treated unfairly.
At the time of her termination, Timmerman, who is white, was
2
fifty-five years old and had worked in IAS’s accounting
department for almost one year. IAS hired a black man who was
younger than Timmerman to fill the permanent position.
Approximately five months after her termination, Timmerman
filed an administrative complaint with the Texas Commission on
Human Rights, claiming that she was “discriminated against on the
basis of [her] race, color, sex, and age and in retaliation for
protected activity in violation of Title VII.”
On December 1, 1995, Timmerman filed suit against IAS in
state court claiming that IAS violated her rights by engaging in
age discrimination, reverse racial discrimination, and
retaliation in violation of state and federal law. IAS removed
the case to federal court and later filed a motion for summary
judgment on all of Timmerman’s claims. On May 19, 1997, the
district court granted IAS’s motion and dismissed the case with
prejudice. Timmerman timely filed this appeal.
II. SUMMARY JUDGMENT STANDARD
We review a grant of summary judgment de novo, applying the
same criteria that the district court used in the first instance.
Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997). We
consult the applicable law in order to ascertain the material
factual issues, and we then review the evidence bearing on those
issues, viewing the facts and inferences to be drawn therefrom in
the light most favorable to the nonmovant. King v. Chide, 974
3
F.2d 653, 656 (5th Cir. 1992).
Summary judgment is appropriate only “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 judgment as a matter of law.” FED. R. CIV. P.
56(c). We note, however, that “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will
be insufficient” to preclude summary judgment; “there must be
evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1985).
III. DISCUSSION
A. Retaliation
The district court concluded that Timmerman failed to
establish even a prima facie case of retaliation. This court has
held that
[t]o establish a prima facie case of retaliatory
discharge under § 2000e-3(a) of Title 42, a plaintiff
must demonstrate (1) that he engaged in activity
protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link between
participation in the protected activity and the adverse
employment decision exists.
Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1300 (5th Cir.
1994) (footnote omitted). The district court found that
Timmerman did not engage in any protected activities and
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therefore failed to meet the first prong of this test. Timmerman
contends that her complaints that she was being treated
“unfairly” equate to complaints of discrimination and that she
therefore did engage in activity protected by Title VII. We
disagree.
Despite Timmerman’s protestations to the contrary, illegal
discrimination is indeed something different from simple unfair
treatment. As we have previously stated, “it has long been the
law in this circuit that Title VII . . . do[es] not protect
against unfair business decisions[,] only against decisions
motivated by unlawful animus.” Nieto v. L&H Packing Co., 108
F.3d 621, 624 (5th Cir. 1997) (internal quotation marks omitted)
(alteration in original). As Timmerman has offered no evidence
that she complained of discrimination prohibited by Title VII,
she has failed to establish a prima facie case of retaliatory
discharge, and the district court was correct to grant summary
judgment on this claim.1
B. Reverse Racial Discrimination & Age Discrimination
The district court determined that although Timmerman
alleged facts sufficient to establish a prima facie case of both
reverse racial discrimination and age discrimination, she failed
1
As we conclude that Timmerman failed to establish a
prima facie case of retaliatory discharge, we do not address her
complaint that the district court considered incompetent summary
judgment evidence pertaining to IAS’s stated business reason for
her termination.
5
to create a fact issue as to whether IAS’s proffered business
reason for not hiring her as a permanent employee was a pretext
for race or age discrimination.2 Timmerman argues on appeal that
the district court (1) incorrectly required her to present
“conclusive proof” of discrimination in order to survive summary
judgment, (2) improperly construed IAS’s assertion that Timmerman
was overqualified for the job as a nondiscriminatory reason for
not offering her a permanent position, (3) considered incompetent
evidence supporting IAS’s proffered reason for not offering her a
permanent position, and (4) erred in refusing to consider her
evidence rebutting IAS’s proffered reason for not hiring her.
These arguments lack merit.
The district court determined that Timmerman established a
prima facie case of reverse racial discrimination by showing that
she was a member of a protected class,3 she was qualified for the
2
As the same issues pervade each of these claims, we
discuss them together. Guthrie v. Tifco Indus., 941 F.2d 374,
376 (5th Cir. 1991) (“The elements of a Title VII case . . .
apply to suits arising under the ADEA.”); see also Burns v. Texas
City Ref., Inc., 890 F.2d 747, 750 (5th Cir. 1989) (“In ADEA
cases in which there is no direct evidence of age discrimination,
the same evidentiary procedure formulated for Title VII cases
applies.”).
3
There is some confusion in this circuit as to when a
white plaintiff may satisfy the first prong of this test.
Compare Flanagan v. Aaron E. Henry Community Health Servs. Ctr.,
876 F.2d 1231, 1233 (5th Cir. 1989) (requiring that a white
plaintiff show that she was a minority within the Health Center
in order to establish a prima facie case of reverse racial
discrimination), with Singh v. Shoney’s, Inc., 64 F.3d 217, 219
(5th Cir. 1995) (stating only that a plaintiff must show that she
6
job, she was discharged, and the position was filled by someone
not within her protected class. See Young v. City of Houston,
Texas, 906 F.2d 177, 180 (5th Cir. 1990). Both sides agreed for
purposes of the summary judgment motion that Timmerman
established a prima facie case of age discrimination.
Although the plaintiff always retains the “ultimate burden
of persuasion” to demonstrate that a challenged employment action
was the result of intentional discrimination, once Timmerman
established a prima facie case of each type of discrimination,
the burden of going forward shifted to the defendant to provide
evidence of a legitimate, nondiscriminatory reason for its
decision. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511,
506-08 (1993); see also Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981). IAS claims that it
legitimately refused to offer Timmerman permanent employment
because its restructuring of the accounting department eliminated
her temporary position and because she was overqualified for the
newly created permanent position dealing exclusively with the
was a member of a “protected group” in order to make out a prima
facie case of reverse racial discrimination and implying that a
white plaintiff claiming race discrimination satisfies this
standard). See generally, 1 BARBARA LINDEMANN ET AL., EMPLOYMENT
DISCRIMINATION LAW 1041 (3d ed. 1996) (noting that “most courts have
suggested that majority-group plaintiffs must offer some
evidence, beyond the remaining elements of the McDonnell Douglas
test, in order to establish a prima facie case” of reverse racial
discrimination). For purposes of this discussion, however, we
assume that Timmerman has established a prima facie case of
reverse racial discrimination.
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collection of past-due accounts and had expressed dissatisfaction
when doing such work in the past.4
Once IAS proffered its reason for the discharge, the burden
4
Timmerman complains that the district court improperly
relied on incompetent and controverted summary judgment evidence
supporting IAS’s business reason for not offering her a permanent
position. Specifically, Timmerman argues that the district court
considered an unverified letter written to Timmerman by Walk and
the affidavit of Keith Weitzman, Timmerman’s immediate
supervisor. In addition, Timmerman argues that the district
court erred in relying on statistical studies offered by IAS.
These claims lack merit. Assuming that Timmerman preserved these
objections, which is not entirely clear from the record, we are
not persuaded that the district court improperly considered any
inadmissible summary judgment evidence.
The letter from Walk was properly authenticated in
Weitzman’s affidavit. Moreover, Timmerman herself identified it
in her deposition as the letter she received from Leigh Walk.
As to Weitzman’s affidavit, we have held that “‘on a motion
for summary judgment a court will disregard only the inadmissible
portions of a challenged affidavit offered in support of or
opposition to the motion and will consider the admissible
portions in determining whether to grant or deny the motions.’”
Williamson v. United Stated Dep’t of Agriculture, 815 F.2d 368,
383 (5th Cir. 1987) (quoting Lee v. National Life Assurance Co.,
632 F.2d 524, 529 (5th Cir. 1980)). In the absence of any
evidence supporting Timmerman’s assertion that the district court
improperly relied on any inadmissible portions of the affidavit,
we presume that it did not. See id.
Finally, Timmerman claims that the trial court erroneously
relied on statistics, derived from a list containing the names,
positions, sex, race, and age of all of IAS’s employees, that
indicated that “upon Plaintiff’s termination, 58% of IAS
employees were age 40 or older, and 41% were at least age 50.”
While Timmerman may be correct that better evidence would include
a comparison of the percentages of temporary and permanent
employees in each group, that argument alone does not make the
list irrelevant, especially as Timmerman failed to offer such
statistics herself even though they were easily ascertainable
from the list submitted by IAS. Thus, we conclude that it was
not improper for the district court to consider the summary
judgment evidence about which Timmerman complains.
8
of going forward shifted back to Timmerman, who, in order to
survive IAS’s motion for summary judgment, was required to
demonstrate that a material question of fact existed as to
whether IAS’s proffered reason for not hiring her was merely a
pretext for discrimination. See St. Mary’s Honor Ctr., 509 U.S.
at 509 (“By producing evidence (whether ultimately persuasive or
not) of nondiscriminatory reasons, [defendants] sustained their
burden of production.”). The district court found that Timmerman
failed to offer any evidence to support her argument that IAS’s
purported explanation was pretextual, and it therefore granted
summary judgment for IAS. We agree.
In both her opposition to IAS’s motion for summary judgment
and her briefs on appeal, Timmerman consistently argues that IAS
has failed to prove that its stated reason for discharging her
was not a pretext for discrimination. However, once the
defendant has satisfied its burden of producing evidence of a
nondiscriminatory reason for the discharge, the presumption of
discrimination created by the plaintiff’s prima facie case is
rebutted. Texas Dep’t of Community Affairs, 450 U.S. at 255.
Thus, unless Timmerman produced some evidence that a genuine
issue of material fact existed as to whether the purported reason
for not hiring her was a pretext for age or race discrimination,
IAS was under no obligation to provide any further evidence
supporting its proffered justification. See, e.g., Waggoner v.
City of Garland, Texas, 987 F.2d 1160, 1166 (5th Cir. 1993)
9
(“[Waggoner’s supervisors] may have disliked Waggoner; they may
have even sought to concoct a reason for his discharge. Yet,
unless Waggoner can connect that dislike to his age, there is no
genuine issue of material fact regarding age or age based
discrimination.”).
Timmerman contends that the facts that she was qualified for
the position and that she was offered a permanent position four
months prior to her termination are sufficient to meet this
burden.5 In support of her arguments, Timmerman cites several
cases in which this circuit has reversed a district court’s grant
of summary judgment on the ground that the plaintiff raised a
genuine issue of material fact on the issue of pretext. These
cases are inapposite. In each instance, as Timmerman herself
notes in her brief, the plaintiff offered evidence that tended to
disprove the defendant’s proffered nondiscriminatory reason for
the discharge. See, e.g., Atkinson v. Denton Publ’g Co., 84
F.3d 144, 152 (5th Cir. 1996) (reversing a grant of summary
judgment where the plaintiff raised a fact issue as to whether
5
Timmerman calls our attention to several cases from
other jurisdictions in which courts have cautioned that
overqualification is sometimes a pretext for age discrimination.
See, e.g., Taggart v. Time Inc., 924 F.2d 43, 47-48 (2d Cir.
1991). But see Equal Employment Opportunity Comm’n v. Insurance
Co. of N. A., 49 F.3d 1418, 1421 (9th Cir. 1996) (disagreeing
with Taggart court that overqualification is always tantamount to
age discrimination). However, she cites no cases from this
circuit indicating that overqualification is always an
illegitimate reason for refusing to hire someone, and she offers
no evidence tending to indicate that it was a pretext for age
discrimination in this case.
10
the employer’s explanation that the plaintiff had performance
problems was pretextual by presenting evidence that he had been
told he was doing a good job and had never received negative
performance evaluations); Hall v. Gillman, Inc., 81 F.3d 35, 37
(5th Cir. 1996) (reversing a grant of summary judgment in an age
discrimination case where the plaintiff’s evidence that he had
recently won a major sales award created a fact issue as to
whether the employer’s stated reason for the discharge--poor
sales performance--was pretextual).
In contrast to the cases discussed above, neither
Timmerman’s argument that she is qualified for the position nor
her reliance on the fact that she was previously offered a
permanent position contradicts the employer’s explanation that
she was overqualified for the more limited duties that the new
position would entail. Moreover, the fact that IAS offered her a
permanent position four months earlier tends to disprove her
theory that IAS’s actions were motivated by illegal
discrimination on the basis of her race or her age. Cf. Brown v.
CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (“‘From the
standpoint of the putative discriminator, “[i]t hardly makes
sense to hire workers from a group one dislikes (thereby
incurring the psychological costs of associating with them), only
to fire them once they are on the job.”’” (quoting Proud v.
Stone, 945 F.2d 796, 797 (4th Cir. 1991) (quoting John J. Donohue
III & Peter Siegelman, The Changing Nature of Employment
11
Discrimination Litigation, 43 STAN. L. REV. 983, 1017 (1991)))).
Finally, Timmmerman has offered no other evidence to rebut IAS’s
assertion, and “[a]bsent countervailing evidence, the trier of
fact must accept the defendant’s explanation as the real reason
for the discharge.” Guthrie v. Tifco Indus., 941 F.2d 374, 378
(5th Cir. 1991). Thus, we conclude that Timmerman has failed to
raise a genuine issue of material fact sufficient to survive a
motion for summary judgment on her claims of reverse race
discrimination and age discrimination.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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