File Name: 06a0769n.06
Filed: October 17, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-4410
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AL MARTINEZ,
Plaintiff-Appellant,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
LIMITED BRANDS, INC. et al., COURT FOR THE SOUTHERN
DISTRICT OF OHIO
Defendants-Appellees.
/
Before: MARTIN and DAUGHTREY, Circuit Judges; REEVES, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. Al Martinez appeals the district court’s dismissal
of his Title VII suit against his former employer, Limited Brands, Inc., pursuant to Limited’s motion
for summary judgment. Martinez, who is of Mexican origin, claimed that three adverse employment
actions taken against him were the product of illegal discrimination on the basis of race, color, and
national origin: (1) the company’s failure to promote him to the position of Vice President of Loss
Prevention, (2) his subsequent termination, and (3) the denial of his severance package. For all three
claims, the district court assumed that Martinez made out a prima facie case under Title VII, but
found that Limited offered legitimate, non-discriminatory bases for each decision, which Martinez
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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failed to show were pretextual. For the reasons discussed below, we AFFIRM the decision of the
district court in all respects.
I
The district court elaborately set forth the facts of the case, and thus we will not repeat them
here, but will only refer to them where relevant to our analysis below. See generally D. Ct. Op.,
Sept. 22, 2005, at 1-7. This Court reviews a district court’s grant of summary judgment de novo, and
must view “the facts and any inferences that can be drawn from those facts . . . in the light most
favorable to the non-moving party.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1996)). Summary
judgment is only 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.” Id. (quoting
Fed. R. Civ. P. 56). Weighing of the evidence or making credibility determinations are prohibited
at summary judgment — rather, all facts must be viewed in the light most favorable to the non-
moving party. Id.
II
Martinez sought to advance his case with indirect evidence of discrimination under the
McDonnel Douglas-Burdine burden shifting approach. See generally McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Under this approach, a plaintiff who cannot present direct evidence of discrimination can establish
a prima facie case of discrimination where he can show: (1) that he was a member of a protected
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class; (2) that he was qualified for the position in question; (3) that he was subjected to an adverse
job action; and (4) that he was replaced by a person outside the protected class, or treated less
favorably than a similarly situated person outside the protected class. Johnson v. University of
Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). Where a plaintiff can make such a showing, “a
mandatory presumption of discrimination is created and the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. If the
defendant articulates a legitimate, non-discriminatory basis for the decision, “then the plaintiff must
prove that the proffered reason was actually a pretext to hide unlawful discrimination.” Id. For a
plaintiff to make a colorable showing of pretext and thus refute the legitimate, nondiscriminatory
reason offered by the employer for its adverse employment action, the plaintiff must show that the
proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct. Wexler v. White's Fine Furniture,
317 F.3d 564, 576 (6th Cir. 2003) (en banc).
A. Failure to Promote
Martinez alleges that Limited discriminated against him in violation of Title VII when the
company failed to promote him from his position as “Director of Loss Prevention” to the newly
created position of “Vice President for Loss Prevention.” The new Vice President was to be in
charge of loss prevention across all of Limited’s brands (including White Barn Candle Company,
Victoria’s Secret Stores, Inc., The Limited Stores, Inc., Express, LLC, and Bath and Body Works,
Inc.), whereas Martinez, as “Director,” had only been in charge of loss prevention for one of
Limited’s brands (Bath and Body Works, Inc.). Limited conducted a nationwide search for its new
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vice presidency. Martinez was interviewed for the position, but was not chosen to be a finalist. Of
the two finalists, Defendant Paul Jones was ultimately selected and hired on June 17, 2002.
Applying the McDonnell-Douglas/Burdine test, the district court found that Martinez had
made out a prima facie case for Limited’s failure to promote him to the vice president position. We
agree. Regarding the second step of the test, the district court found that Limited had offered a
legitimate, non-discriminatory reason for hiring Jones instead of promoting Martinez, based on the
company’s determination after a thorough interview process that Jones was the more qualified
candidate. Specifically, the district court credited Limited’s assertion that Jones was more qualified
because he had senior-level experience in areas other than loss prevention and he had previous
experience running centralized loss prevention programs at companies similar to Limited. The
district court also credited Limited’s assertion that Martinez lacked a good working relationship with
other departments within Limited. We again agree with the district court’s finding that step two of
the McDonnell-Douglas/Burdine test was met.
That leaves only step three, in which Martinez must show that Limited’s legitimate non-
discriminatory reason was pretextual. Martinez has been unable to make this showing. He seeks
to challenge the veracity of the views of several decision makers, including an outside search firm,
that Jones was better qualified for the position. The primary evidence Martinez adduces are the
opinions of his peers and subordinates, who praised his abilities as Director of Loss Prevention for
Bath and Body Works. Martinez also points to Limited’s policy of promoting from within where
possible. Ultimately, Martinez’s argument boils down to a disagreement with the company about
who the more qualified candidate was, without the benefit of evidence showing that Limited’s
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proferred basis was not supported by the facts or was not the actual basis for the decision. This is
not a sufficient basis to establish pretext, as it is “the employer’s motivation, not the applicant’s
perceptions, or even an objective assessment of what qualifications are required for a particular
position, [that] is key to the discrimination inquiry.” Browning v. Dep't of the Army, 436 F.3d 692,
697 (6th Cir. 2006) (quoting Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)).
Martinez makes two additional arguments to show pretext on his failure-to-promote claim,
but both are unavailing. First, Martinez alleges that during his interview for the Vice President job,
he was asked where he was from, and when Martinez replied that he had grown up in Texas, the
interviewer asked him if he had grown up along the border. Martinez maintains that this question
was offensive because it inferred that he had just come across the border. While this question could
possibly be construed to reflect a discriminatory animus (as opposed to bald geographic ignorance
— i.e., that not all Texas towns share a border with Mexico), at worst it reflects negatively on only
one of seven interviewers who participated in the hiring decision, not including the independent
search firm. In broader context, then, it is hard to see how this lone question would have undermined
the legitimacy of the company’s basis for hiring Jones instead of promoting Martinez. The district
court correctly found that the comment was too isolated to support a finding of discrimination.
Second, Martinez claims that “statistical evidence” shows that he was one of only two Latino
employees at the director level or above at Limited. This proffer was based solely on Martinez’s
personal observations of the ethnicity of Limited employees. Without more comprehensive data
showing, at a minimum, the total number of director-level and above positions at Limited, the total
number of Latinos who applied for those positions, and the total number of Latinos who in any given
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year held those positions, Martinez’s anecdotal proffer is not sufficient to support an inference of
discrimination. Thus, we conclude that Martinez has failed to show that Limited’s legitimate non-
discriminatory reason for not promoting him to Vice President for Loss Prevention was pretextual.
B. Termination
Martinez contends that Limited’s decision to terminate him on January 20, 2003 was also
based on racial discrimination. We agree with the district court that Martinez has made out a prima
facie case with respect to this termination claim. We also agree that Limited successfully rebutted
the termination claim by offering a legitimate, non-discriminatory reason for Martinez’s dismissal.
Limited’s explanation, in a nutshell, is that Martinez’s work performance and relationships
deteriorated after he was denied the promotion. Martinez failed to do work that he was asked to do
by Jones (such as visiting more retail stores, especially those in “high shrink,” or high theft, areas),
he failed to attend centralized loss prevention meetings as requested by Jones, he failed to adequately
train his subordinates, and he attended a conference in Phoenix which Jones had specifically asked
him not to attend. Martinez also undermined Jones’ authority by telling other members of Bath and
Body Works’ loss prevention group that Limited had decided not to centralize loss prevention, even
after Jones had been hired and the centralization plan had already begun.
Martinez first attempts to counter Limited’s proffered reason for his termination by
demonstrating that he had been a very successful employee at Limited. The evidence he adduces,
however, largely stems from Martinez’s work before Jones was hired in June of 2002. Such
evidence does little to counter the company’s justification for Martinez’s termination. There appears
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to be little issue of material fact that Martinez’s performance and behavior at work declined after he
was denied the promotion, and thus Martinez’s offer of proof fails to show that the reasons behind
his termination were pretextual.
Martinez also attempts to refute the company’s criticism of his work subsequent to the Jones
hiring. He argues that because he had been given significant responsibility for a loss prevention
initiative called “Project New View,” this often created conflicts with the centralized meetings that
Jones criticized him for missing. Similarly, Martinez introduced affidavits from co-workers
indicating that he should not necessarily have been expected to be a contributor at some of the
meetings with Jones, and thus his presence was not really required. Martinez also presented business
reasons for his attending the conference in Phoenix. These amount to mere disagreements over the
company’s expectations of Martinez, suggesting at most that those expectations might have been
unrealistic. Even if this Court were to think that an employer’s expectations of an employee were
too high or unfair, it does not necessarily follow that such expectations constitute a pretext for
discrimination. See Robin v. ESPO Eng’g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000) (noting that
“it is no business of a court in a discrimination case to decide whether an employer demands 'too
much' of his workers”). If, perhaps, Martinez had demonstrated that these expectations were
different from those of white employees, he would have a much stronger case. But it does not appear
that he has unearthed any evidence of this nature.
Finally, Martinez points to communications between Jones and other Limited employees that
indicate Jones was “out to get him.” For example, Jones sent an email to Limited’s director of
human resources in which he wrote: “I want to speak with you about strategy with Al. I have only
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three issues that are actionable. . . . I would like help in navigating the waters.” Jones’s statement
that he had “only three items that are actionable,” and the suggestion that he wanted advice on
penalizing or marginalizing Martinez could potentially indicate that the reasons for the termination
proffered by Limited were not the real reasons for the termination and were pretextual. This email
from Jones, viewed in combination with the fact that Martinez had largely positive work reviews
until Jones gained supervisory authority, is the closest Martinez can come to showing pretext.
However, this email also has a perfectly non-pretextual explanation — namely, that Jones was
seeking advice from the director of human resources on how to deal with an employee who had
failed to meet several concrete job expectations, who had failed to listen to a superior’s instructions,
and who had manifested insubordinate behavior. No reasonable juror could find pretext based on
the email standing alone. We thus hold that with respect to Martinez’s termination claim, the district
court’s entry of summary judgment on behalf of Limited was warranted.
C. Denial of Severance Package
At the same time he was informed of his termination, Martinez was offered a severance
package. Before Martinez accepted the severance package, Limited learned that he had apparently
entered into a two million dollar contract without company authorization. Limited therefore revoked
the severance offer while it conducted an investigation into the matter. While the investigation was
pending, Martinez accepted a position with another employer. This action, according to Limited,
effected a cancellation of the severance contract, whose express terms stated that the terminated
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employee would receive severance benefits only so long as he continued to be unemployed.1
The district court found that Martinez made out a prima facie case regarding Limited’s
withdrawal of its offer of his severance package, and Limited does not dispute this determination.
It offers a nondiscriminatory basis for the revocation, namely that it temporarily withheld the
severance package while it was investigating a contract entered by Martinez, and that during this
time, Martinez accepted employment elsewhere. The district court found that this reason was not
pretextual. Martinez challenges the district court’s determination by claiming that he was in fact
authorized to enter the two million dollar contract, because the agreement he entered into was simply
a refinancing of an existing contract.
Even if Martinez’s explanations of the contract are accurate, such explanations have no
bearing on the pretext inquiry for this claim. Limited has not stated that it revoked the severance
package because Martinez exceeded his authority as Director of Loss Prevention. Rather, Limited
claims merely that it temporarily withheld the severance package while it investigated his actions.
Martinez does not argue that such investigatory action by Limited somehow violated the terms of
the severance agreement, and thus Limited’s investigation appears to have been a legitimate basis
for the temporary withholding. It appears from the record that had Martinez not accepted another
1
The first substantive paragraph of the proposed separation agreement included the following
language:
Subject to the Executive’s compliance with the terms and conditions contained in this
Agreement, the Company agrees to pay the Executive . . . on a weekly basis for a
period beginning . . . February 7, 2003 and ending upon the earlier of: (i) the
Executive’s receipt of twenty-six such payments or (ii) the Executive’s first day of
employment with another employer. (emphasis added)
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job, and had Martinez been correct that he was authorized to enter into the two million dollar
contract, he would have received the severance package. Thus, Martinez’s claim as to Limited’s
discriminatory denial of his severance package must fail.
III
Martinez has failed to rebut Limited’s legitimate non-discriminatory reasons for taking the
three adverse employment actions of which he complains. This Court will therefore AFFIRM the
district court’s summary judgment order and dismissal of Martinez’s claims.