Bogoslawski v. Decatur Restaurant

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-10574

ARLENE R. BOGOSLAWSKI,

Plaintiff-Appellant

VERSUS

DECATUR RESTAURANT LIMITED, d/b/a Grandy’s of Decatur;
GAINSESVILLE RESTAURANT LIMITED, d/b/a Grandy’s of Gainesville,

Defendants-Appellees

Appeal from the United States District Court
For the Northern District of Texas
(3:96-CV-651-T)
February 27, 1998

Before REYNALDO G. GARZA, DUHÉ, and STEWART, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:1

Appellant, a former supervisor for two chain restaurants, sued

Appellees, the owners, for sex-based discrimination under Title

VII. Appellant could not show that Appellee’s reason for firing

her was pretextual so the district court granted summary judgment.

We affirm.

1
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opinion should not be published and is not precedent except under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.
 BACKGROUND

Appellees purchased two Grandy’s restaurants, one in

Gainesville, Texas and the other in Decatur, Texas. At the time of

purchase, Arlene Bogoslawski (“Bogoslawski”) supervised those two

restaurants. Appellees kept Bogoslawski as supervisor of the

restaurants until she was fired2 on September 30, 1994.

Immediately after her firing, Appellees hired another female

employee to serve as temporary general manager of the Gainesville

restaurant. Appellees eliminated the job of supervisor of the two

restaurants; however, they later made a man supervisor over the two

restaurants as well as another one.

Bogoslawski sued Appellees alleging sex-based discrimination.

Appellees successfully moved for summary judgment and the district

court entered a final judgment dismissing Bogoslawski’s claim. She

now appeals.

ANALYSIS

A. STANDARD OF REVIEW

This Court reviews grants of summary judgment de novo.

Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th Cir.

1996). A claim warrants summary judgment when there is no genuine

issue of material fact. FED. R. CIV. P. 56(c). We review the

evidence in the lights most favorable to the non movant. Daly v.

2
There is some dispute about whether Bogoslawski quit or was
fired, but for purposes of this opinion, we assume she was fired.

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Sprague, 675 F.2d 716 (5th Cir. 1982).

B. THE MERITS

To establish a claim of sex-based discrimination under Title

VII, the plaintiff must first establish a prima facie case of

discrimination. The burden then shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the

challenged employment action. Finally, the burden shifts back to

the plaintiff to prove that the articulated reason is pretextual

and that discrimination was the real reason. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973); Walton v. Bisco

Industries, Inc. 119 F.3d 368, 370 (5th Cir. 1997). Like the

district court, we assume that Bogoslawski has made a prima facie

case. By making that assumption, we also necessarily assume that

she was fired. Once a prima facie case is established or assumed,

an inference of discrimination arises and the Appellees have to

articulate a legitimate, nondiscriminatory reason. St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993); Rhodes v.

Guiberson Oil Tools, Inc., 75 F.3d 989, 992 (5th Cir. 1996) (en

banc). If not, then Bogoslawski wins. See generally, Walton, 119

F.3d at 370.

The Appellees contend that they fired Bogoslawski because her

management style conflicted with theirs. The district court found,

and we agree, that this is a legitimate, nondiscriminatory reason.

The issue is whether Bogoslawski has created an issue of material

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fact that the Appellees’ reason was pretextual and that she was

actually fired because she is a female.

To avoid summary judgment, Bogoslawski must show that the

evidence taken as a whole 1) creates a fact issue as to whether

Appellees’ reason is pretextual and 2) creates a reasonable

inference that gender was a determinative factor in the adverse

employment action. Rhodes, 75 F.3d at 994. Bogoslawski argues

that the district court erred because it examined her pretext

evidence in isolation.

To show that Appellees proffered reason is mere pretext,

Bogoslawski argues that the proffered reason is a “mere conclusory

allegation” and as such is not competent summary judgment evidence.

She points out that Appellees contradicted themselves in initially

arguing that she quit and then stating her management style would

have warranted firing. We see no contradiction. Because we (and

the district court) assumed that Bogoslawski was fired, Appellees

had to articulate a legitimate, non-discriminatory reason for

firing her. Here, the alternate explanations cannot be considered

evidence of pretext.

Bogoslawski also argues that there was ample evidence to show

that a question of fact existed as to whether she was fired over

her management skills. She points to Robert McGlory’s3 deposition

and affidavit testimony in support. She contends that while

3
McGlory supervised the Gainesville and Decatur restaurants with
Bogoslawski.

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McGlory’s affidavit testimony is intended to cast doubt on her

management skills, his deposition is contradictory. We disagree.

Bogoslawski is correct in stating that McGlory’s affidavit states

that their management styles conflicted; however, his deposition

implies the same information. There is no contradiction, and thus,

no evidence of pretext. Bogoslawski has not created an issue of

fact that Appellees’ legitimate, nondiscriminatory reason is

pretextual; therefore her claim fails.

CONCLUSION

For the above reasons, we AFFIRM.

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