IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-50015
_____________________
SHIRLEY RAMIREZ,
Plaintiff-Appellant,
versus
LANDRY'S SEAFOOD INN & OYSTER BAR; LANDRY'S SEAFOOD
RESTAURANT,
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, San Antonio
_________________________________________________________________
February 4, 2002
Before JOLLY, SMITH and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Shirley Ramirez, a Hispanic woman, has adduced enough evidence
for a jury to find that her former employer, Landry’s Seafood Inn
(“Landry’s”), violated Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, by discharging her based on her national origin.
We therefore reverse the grant of summary judgment by the district
court in favor of Landry’s and remand for further proceedings.
I
Ramirez was employed as a waitress at Landry’s from 1990 until
she was discharged in 1995. In December 1995, two managers at
Landry’s, Carol Cree and Wendi Scarborough, informed general
manager Patrick Richardson –- based on second-hand reports -- that
Ramirez planned to stage a walkout en masse in the middle of a
shift and had spread an unfounded rumor that a manager had been
fired for calling in sick. Ramirez denies planning a massive
walkout1 and denies spreading a rumor. Following a meeting of
Landry’s managers, Richardson terminated Ramirez on December 9,
1995. A contemporaneous report documenting the termination
indicates that Ramirez was fired because: (1) “[s]he has been
working behind the scenes attempting to lure fellow employees to
leave Landry’s” and (2) “she is spreading rumors about a manager
being fired for calling in sick.”
Ramirez filed a complaint with the EEOC alleging that she was
discharged based on her national origin in violation of Title VII.
Based on its investigation of Ramirez’s allegations, the EEOC
issued a right to sue letter stating that it found reasonable cause
to believe that Ramirez’s discharge was the result of illegal
discrimination. In August 1999, Ramirez filed this Title VII
action against Landry’s. After nine months of discovery, Landry’s
filed a motion for summary judgment. Accepting the magistrate
judge’s recommendation, the district court granted Landry’s motion
in November 2000. Ramirez now appeals.
II
1
According to Ramirez, several employees were contemplating
applying for jobs at the Hard Rock Café, and Ramirez merely
suggested that they would be more likely to secure positions if
they applied as a team.
2
The district court granted summary judgment in favor of
Landry’s because “Ramirez has wholly failed to present any evidence
to support an inference that Landry’s stated reasons for her
discharge, consisting of behavior admittedly engaged in by Ramirez,
were pretextual, i.e., that the reasons were false and that the
true reason was discrimination.” We review de novo the district
court’s grant of summary judgment. See Blow v. City of San
Antonio, Tex., 236 F.3d 293, 296 (5th Cir. 2001). Summary judgment
is appropriate when the record, viewed in the light most favorable
to the non-movant, reveals no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. See
id.; Fed. R. Civ. P. 56.
Landry’s concedes that Ramirez has established a prima facie
case of discriminatory discharge and, as noted above, Landry’s has
articulated two non-discriminatory reasons for discharging Ramirez.
To make a showing of pretext sufficient to submit her case to a
jury, Ramirez “must put forward evidence rebutting each of the
nondiscriminatory reasons the employer articulates.” Wallace v.
Methodist Hosp. System, 271 F.3d 212, 220 (5th Cir. 2001) (emphasis
added and citations omitted).
In response to the first proffered rationale for her
termination, Ramirez points to evidence that a white employee,
Cynthiann Rutkowski, engaged in similar actions yet was never
3
disciplined in any way.2 Specifically, Ramirez presented sworn
statements from two other Landry’s employees, Ernest Zavala and
Mary Castaneda, that Rutkowski offered to use her connections at
Outback Steakhouse to obtain jobs for them and for Ramirez.
Ramirez, Zavala, and Castaneda all assert that Richardson was aware
of Rutkowski’s activities before he fired Ramirez, but Richardson
did not take any action against Rutkowski.
We have held that “[w]hen a supervisor of one race treats
employees of the same race more favorably than similarly situated
employees of another race under circumstances that are essentially
identical, a presumption of discriminatory intent is raised.”
Barnes v. Yellow Freight Indus., 778 F.2d 1096, 1101 (5th Cir.
1985). Viewing the evidence in the light most favorable to
Ramirez, we find that Ramirez has raised a material issue of fact
whether a similarly situated white employee was treated more
leniently than she. Rutkowski’s actions here were in essence the
same as Ramirez’s. Barnes, 778 F.2d at 1101. Indeed, actually
offering jobs with a competitor may be a more serious example of
encouraging employees to leave their current jobs than a suggestion
that employees apply for jobs elsewhere as a team.3
2
Ramirez also contends that the other employees (Mary
Castaneda and Jaime Rodman) who were involved in the alleged
“conspiracy” were never disciplined, although they engaged in the
same conduct as Ramirez. In view of our ultimate holding, there is
no need to address that contention here.
3
Rutkowski acknowledges that she expressed interest in leaving
Landry’s, but she denies that she offered jobs at Outback to
4
Landry’s argues that Ramirez’s conduct is different from
Rutkowski’s conduct because Ramirez “attempted to facilitate a
coordinated departure of Landry’s employees.” Scarborough, Cree,
and Richardson assert that they believed that Ramirez was planning
to stage a coordinated walkout during a shift, but the termination
report refers only to an attempt to “lure fellow employees to leave
Landry’s.” Although the trial court found immaterial any
distinction between luring employees away and staging a coordinated
walkout, it is not entirely clear whether the alleged
“coordination” was a significant factor in Ramirez’s termination.
In any event, we are persuaded that Ramirez’s conduct is in essence
the same as Rutkowski’s conduct.
Landry’s also argues that it terminated Ramirez in part
because she had received two previous disciplinary reports.
Rutkowski, by contrast, had not received a disciplinary report.
Because company policy allows management to fire any employee who
had received two or more warnings, Landry’s argues that Ramirez and
Rutkowski were not in the same position. This argument fails,
however, because Landry’s did not rely on Ramirez’s disciplinary
Landry’s employees. In any event, resolving conflicts in testimony
is the exclusive province of the trier of fact and may not be
decided at the summary judgment stage. See Dibidale, Inc. v. Am.
Bank & Trust Co., 916 F.2d 300, 307-08 (5th Cir. 1990). Similarly,
Landry’s suggests that Richardson may not have been aware of
Rutkowski’s activities and may have legitimately perceived that
Ramirez’s activities were more unusual than they were. As noted
earlier, however, Ramirez, Zavala, and Castaneda assert that
Richardson had been informed of Rutkowksi’s statements. Here
again, the jury must resolve any conflicts in testimony.
5
history in the December 9, 1995 report documenting her dismissal.
In sum, we find that Ramirez has raised a genuine issue of
material fact whether Landry’s used the alleged walkout proposal as
a pretext for terminating her based on her national origin.
Landry’s second proffered nondiscriminatory reason for
terminating Ramirez is that she allegedly spread a false rumor that
Lon Letcher, a manager at Landry’s, had been fired for calling in
sick. Ramirez denies that she spread any such rumor. Landry’s
argues that, even if Ramirez had not in fact spread the rumor as
alleged, Richardson could legitimately terminate her based on his
“good faith” belief that she had.4
In response, Ramirez argues that there is no evidence outside
Richardson’s affidavit that anyone actually heard or reported the
alleged rumor to Richardson. For example, Richardson asserts that
Carol Cree informed him about the alleged rumor, but Cree’s
affidavit does not mention it. Richardson also refused to provide
any details about the alleged rumor when he terminated Ramirez.
According to Ramirez, Landry’s did not even reveal that the manager
in question was Letcher until several years after her termination.
Ramirez also asserts that the alleged rumor would have made little
4
See Waggoner v. City of Garland, 987 F.2d 1160, 1165-66 (5th
Cir. 1993) (“[T]he inquiry is limited to whether the employer
believed the allegation in good faith and whether the decision to
discharge the employee was based on that belief.”); see also Jones
v. Flagship Int’l, 793 F.2d 714, 729 (5th Cir. 1987) (holding that
a termination decision is not pretextual if the employer “had
reasonable grounds [for the decision], or in good faith thought it
did”).
6
sense because Letcher was not absent from work and was actually on
duty on the day Ramirez was fired. Viewing the record in the light
most favorable to Ramirez, we find that Ramirez has created an
issue of fact whether the rumor-spreading allegation was an actual
reason for Ramirez’s termination.
III
In conclusion, we hold that Ramirez presented sufficient
evidence refuting each of the proffered nondiscriminatory reasons
for her termination to raise a genuine issue of fact whether the
reasons were a pretext for discrimination. The district court
therefore erred in granting summary judgment on Ramirez’s
discrimination claim in favor of Landry’s. Accordingly, we reverse
the judgment of the district court and remand for further
proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
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