IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30169
_____________________
MERLON G. CRAWFORD,
Plaintiff - Appellant,
vs.
FORMOSA PLASTICS CORPORATION,
LOUISIANA,
Defendant - Appellee.
---------------------------------
Appeal from the United States District Court
for the Middle District of Louisiana
December 5, 2000
Before BARKSDALE and BENAVIDES, Circuit Judges.*
BENAVIDES, Circuit Judge:
Merlon Crawford filed suit alleging that his reassignment by
his employer, Formosa Plastics Corporation, constituted disparate
treatment resulting from: (1) age discrimination, in violation of
the Age Discrimination in Employment Act, see 29 U.S.C. § 621 et
seq., and (2) race discrimination, in violation of Title VII of
the Civil Rights Act of 1964, see 42 U.S.C. § 2000e et seq. The
district court granted defendant’s motion for summary judgment
and dismissed Crawford’s claims of race and age discrimination.
*
Judge Vela, District Judge of the Southern District of
Texas, was a member of the panel that heard oral arguments but did
not participate in the decision. This case is being decided by a
quorum, 28 U.S.C. § 46(d).
Crawford filed a timely notice of appeal.
I. Facts and Procedural History
On August 27, 1990, Formosa Plastic Corporation hired
plaintiff, Merlon Crawford, to work in the Engineering Center of
its manufacturing plant in Baton Rouge, Louisiana. Plaintiff
subsequently requested and obtained a transfer to the Maintenance
Department. In January 1994, plaintiff was promoted within the
Maintenance Department to the position of Assistant Instrument
Manager. As Assistant Instrument Manager, plaintiff was
responsible for the supervision of approximately 25 employees.
Since his promotion, Crawford has had a successful, yet
often checkered, career at Formosa. On September 9, 1996,
plaintiff’s supervisor, Andre Borne, sent plaintiff a memo which
addressed plaintiff’s “poor performance as a manager.” The memo
contained several examples of his poor performance including
Crawford’s failure “to get involved and communicate” with his
employees to “find out what is going on within [his]
department.”1 Borne accused Crawford of “taking the easy way
out” by merely deflecting problems rather than solving them. A
February 19, 1997 memo reported Ricky Perez, a subordinate of
Crawford, as stating that Crawford “was not a good manager. He
has no idea how to manage and he can not accomplish anything in
1
Crawford was also disciplined for his role in Formosa’s
receipt of an unsatisfactory rating from the Louisiana Department
of Environmental Quality, a fact often considered “severe enough
for termination.”
2
the M&I Department.”
In July 1997, Y.S. Lee was named the Electrical/M&I
maintenance manager, thus becoming Crawford’s supervisor. As one
of Lee’s assistant managers, Crawford described his relationship
with Lee as “shaky.” The first incident between Crawford and Lee
occurred on October 3, 1997, when Lee told Crawford in a
telephone conversation that his explanation during the morning
departmental meeting was not clear. Crawford then went to Lee’s
office and a verbal encounter erupted. Lee reportedly used
profanity, but at no time used any racial slurs, racially
demeaning remarks, or racial overtones. During the same month,
Lee and Crawford clashed over an employee’s use of compensatory
time, which Crawford had approved. Their relationship was
strained further in November 1997, when Crawford joined other
subordinate employees in drafting a memo to upper management
questioning Lee’s management style.
In response to low departmental productivity and morale and
the recent departure of two employees, August Tassin and Chris
Haley, Formosa personnel conducted an evaluation of the M&I
department. Based on their evaluation, it was determined that
plaintiff had failed, or was failing, to perform at a desired
level. On February 13, 1998, plaintiff met with Simon Chang, the
Assistant Vice-President of Maintenance. At that time Chang
presented plaintiff with a letter informing him he was being
reassigned to a staff position with the Maintenance Department,
3
but would be maintained at his current salary and job grade. In
addition, plaintiff was told that Lee would receive the same
letter and would be reassigned to a staff position.
On July 22, 1998, plaintiff filed a complaint with the EEOC
alleging discrimination based on his age and race. On September
18, 1998, finding insufficient evidence to establish a violation,
the EEOC issued plaintiff a right to sue letter. On October 13,
1998, plaintiff filed the instant suit alleging violations of
Title VII and the ADEA.
II. Analysis
Crawford’s claims of discrimination are governed by the
tripartite burden-shifting test established by McDonnell-Douglas
v. Green, 411 U.S. 792, 802-04, 83 S.Ct. 1817 (1973). Under this
test, if Crawford establishes a prima facie case of
discrimination, the burden shifts to Formosa to articulate a
legitimate, non-discriminatory reason for reassigning Crawford.
See id. If Formosa satisfies this burden, the burden shifts back
to the plaintiff, who must prove that “the legitimate reasons
offered by the defendant [for reassigning the plaintiff] were not
its true reasons, but were a pretext for discrimination.” Reeves
v. Sanderson Plumbing Products, Inc., __U.S.__, 120 S.Ct. 2097,
2104-05 (2000).
Crawford established a prima facie case of discrimination by
showing that (1) he suffered a demotion; (2) he was qualified for
4
the position he occupied; (3) he was within the protected class
at the time of the demotion; and (4) he was replaced by someone
not within the protected class.2 See Bennett v. Total Minatome
Corp., 138 F.3d 1053, 1060 (5th Cir. 1998); see also Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 993 n.3 (5th Cir. 1996) (en
banc) (noting that the same analytical framework is applied to
Title VII and ADEA discrimination cases). The defendant has also
met its burden of producing a non-discriminatory reason for his
demotion. Formosa’s burden in this regard “is one of production,
not persuasion . . . [and] can involve no credibility
assessment.” Reeves, 120 S.Ct. at 2106. Accordingly, Formosa’s
claim that Crawford was demoted for unsatisfactory performance as
a manager satisfies its initial burden. The critical inquiry
then becomes the third part of the McDonnell-Douglas test–whether
the plaintiff met his burden of showing that defendant’s
explanation was merely a pretext for the actual reason he was
demoted–discrimination. The district court concluded that
Crawford had not met this burden and granted defendant’s motion
for summary judgment.
2
Formosa argues that Crawford’s reassignment did not amount
to a demotion. While resolving this question is somewhat difficult
given Formosa’s Byzantine job structure, it is clear from the
record that the reassignment led to Crawford’s managerial
responsibilities being eliminated. Moreover, from the record, it
appears that Crawford’s prospects for future promotion were
affected. These facts create a material dispute as to whether
Crawford was demoted, rendering summary judgment on this basis
inappropriate.
5
This Court reviews a grant of summary judgment de novo.
Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
Summary judgment is proper when the evidence reflects no genuine
issues of material fact and the non-movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c). A genuine
issue of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505 (1986). We must view all evidence in the light most
favorable to the party opposing the motion and draw all
reasonable inferences in that party’s favor. Id. at 255.
The ultimate determination, in every case, is whether,
viewing all of the evidence in a light most favorable to the
plaintiff, a reasonable factfinder could infer discrimination.
See Reeves, 120 S.Ct. at 2106. In making this determination, a
court should consider “the strength of the plaintiff’s prima
facie case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the
employer’s case. . . .” Reeves, 120 S.Ct. at 2108. We have
often recognized the difficulty in proving discrimination by
direct evidence. LaPierre v. Benson Nissan, Inc., 86 F.3d 444,
449 (5th Cir. 1996). Thus, the strength of the circumstantial
evidence supporting the plaintiff’s prima facie case and showing
the defendant’s proferred reason is false may be enough to create
6
an inference of discrimination. Reeves, 120 S.Ct. at 2109.
A mere scintilla of evidence of pretext does not create an
issue of material fact in all cases. Wyvill v. United Companies
Life Insurance Co., 212 F.3d 296, 301 (5th Cir. 2000). As stated
by the Supreme Court in Reeves, a plaintiff must present
“sufficient evidence to find that the employer’s asserted
justification is false.” Reeves, 120 S.Ct. at 2109 (emphasis
added); see also Rhodes, 75 F.3d at 993. It is, therefore,
possible for a plaintiff’s evidence to permit a tenuous inference
of pretext and yet be insufficient to support a reasonable
inference of discrimination. Travis v. Board of Regents of the
Univ. of Tex. Sys., 122 F.3d 259 (5th Cir. 1997). Likewise, if
the evidence of pretext is substantial, the plaintiff may create
a genuine issue of material fact without independent evidence
that discrimination was the real reason for the adverse
employment action. Walton v. Bisco Industries, Inc., 119 F.3d
368, 372 (5th Cir. 1997). The determination must be made on a
case-by-case basis, depending on the nature, extent, and quality
of the evidence, as to whether a jury could reasonably infer
discrimination.
As part of his prima facie case, Crawford demonstrated he
was replaced by Brett Banta, a white male under the age of 40.
Crawford claims that Banta’s promotion to his prior position was
in violation of Formosa’s own guidelines and thus shows
7
discrimination. Under Formosa’s guidelines, Banta had not
received the required ratings on his annual evaluations to merit
a promotion. Banta, however, only replaced Crawford as the
“acting” Assistant Manager pending the appointment of a permanent
replacement. Banta’s temporary assignment to the position does
not violate Formosa’s guidelines.
Crawford’s evidence of pretext focuses on the managerial
performance of Y.S. Lee, his supervisor. While the evidence
supports Crawford’s contention that Lee was the primary reason
two department employees resigned, their departure was only part
of the company’s greater concern about the performance of the M&I
department. According to Chang’s letter, Crawford was
transferred because of the turmoil within the department in which
he was a manager. It would not have been unreasonable for the
company to seek a fresh start in the troubled department.
Significantly, Crawford was not the only one held responsible for
the department’s problems, Lee was also transferred to a staff
position. Proof of Lee’s ineffectiveness does not establish
pretext or create an inference of discrimination, at worst it
represents an internal inconsistency within the company.
Chang’s letter also referenced Crawford’s prior warning for
poor performance as a manager. The referenced warning was given
in a 1996 memo from Andre Borne, and was serious enough to
warrant placing Crawford on probation. Crawford contends that
the warning was two years prior to his demotion and that his most
8
recent evaluation reflected improvement. While the most recent
evaluation does score him “Above Average” (20th-40th percentile)
both overall and in “organization management/leadership,” it does
not cover the six months prior to his reassignment when he was
working with Lee. The company attributes the low performance and
morale in the department to Crawford’s failure to work with and
support Lee’s efforts to improve the department. For example,
Formosa blames Crawford’s poor management skills for the conflict
between August Tassin, one of the employees that resigned, and
Lee. Crawford granted Tassin approval to use compensatory time
to take off work, then failed to communicate with Lee when Lee
challenged the use of compensatory time, leaving Tassin and Lee
to conflict. The tension between Lee and Crawford is well
chronicled in the complaints filed by each with the company. The
most contentious of these was a memo, signed by Crawford and
other employees, criticizing Lee’s ability to manage the
department.
The critical issue is whether Crawford has met his burden of
showing a genuine issue of material fact as to whether Formosa’s
employment action was illegally motivated. As in this case where
there is no direct evidence of discrimination, the plaintiff
needs to present sufficient evidence that Formosa’s proferred
reason is false. Here, “[Crawford’s] evidence to rebut the non-
discriminatory reasons offered by [Formosa] is not so persuasive
9
so as to support an inference that the real reason was
discrimination.” Rubenstein v. Administrators of the Tulane
Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000).
III. Conclusion
The plaintiff has failed to present sufficient evidence from
which a reasonable jury could infer discrimination. Accordingly,
we AFFIRM the holding of the district court.
10