United States Court of Appeals,
Fifth Circuit.
No. 94-11137
Summary Calendar.
Rose Marie RAY, Plaintiff-Appellant,
v.
TANDEM COMPUTERS, INC., Defendant-Appellee.
Sept. 11, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
Rose Marie Ray appeals the entry of summary judgment in favor
of her former employer, Tandem Computers Inc., on her claims of sex
and age discrimination and retaliation. We affirm.
Background
Ray, a white female born in 1941, joined Tandem in 1982 as a
sales representative. Initially her sales were low, but her
performance improved over time, resulting in company recognition
and several awards.
In September of 1988 Ray was placed under the supervision of
Keith Keister in Tandem's Dallas office. Shortly thereafter, one
of Tandem's major clients, MoneyMaker/TransFirst, requested that
Ray be removed from its account after she had an argument with one
of their representatives. Tandem reassigned the account to John
Koenigs, a transfer which Ray viewed as sex discrimination
notwithstanding the fact that she had recommended another male as
1
a replacement. Ray disputed the reassignment and Tandem's failure
to reserve in her favor all of the commissions earned within 90
days of the reassignment. Ray complained to Keister's superiors
and then confronted him demanding an explanation. Keister
allegedly yelled that he was tired of her going over his head and
that she should get out of his office. Keister later apologized
for his behavior but criticized Ray for her conduct, including her
"crying wolf" about discrimination. Tandem ultimately concluded
that Ray was entitled to a 75/25 split of the commissions and
corrected the original award.
In June of 1989 Koenigs transferred to California and it
became necessary to reassign Tandem's account with the Mobil Oil
Company. Keister initially reassigned this account to Dana Alagna,
a male younger than Ray, but later reassigned the account to Ray.
Keister then escorted Ray to an introductory lunch meeting with a
Mobil representative at Hooters, a restaurant/bar known more for
the attire of its service personnel than its cuisine. Ray
complained to Keister that they should not do business in a bar,
and informed his superiors that the atmosphere was inappropriate
for female sales representatives.
When Koenigs returned to the Dallas office in 1991, Keister
reassigned the Mobil account to him, granting Ray an unprecedented
one year reservation of commissions. In place of the Mobil account
Tandem reassigned several accounts to Ray. Ray protested the
reassignment of the Mobil account but was told by an upper level
manager that Koenigs was the "better man for the job" because of
2
his well developed contacts within that organization. Incensed,
Ray gave the manager a most vulgar suggestion and stormed out of
his office.1
While this acrimonious relationship with Tandem was
developing, Ray's performance suffered. Her sales dropped
significantly in 1989, largely due to the hostile takeover of her
largest client. She asked for, and received, a reduction in her
quota for 1989, but failed to meet the reduced revenue goal. In
each of the next three years, Ray again failed to meet her sales
quota, sometimes by nearly one-half.
In February of 1992 Tandem placed Ray on a Performance
Improvement Plan or "PIP" for a 90 day period. The plan included
revenue goals, established by Ray, and once a week "coaching"
meetings with her immediate supervisors. After Ray failed to meet
the goals of her PIP, Tandem terminated her employment. Ray
subsequently filed the instant suit alleging sex2 and age3
discrimination in the terms and conditions of her employment and in
Tandem's termination of her employment, retaliation4 in her
1
In late 1991, Ray filed a formal, internal complaint
alleging sex, but not age, discrimination in her treatment by the
company since 1988. The company investigated the charge, found
no evidence of discrimination and so informed Ray in January of
1992.
2
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq.
3
Age Discrimination in Employment Act, as amended, 29 U.S.C.
§ 621 et seq.
4
Both Title VII and the ADEA prohibit an employer from
retaliating against employees who exercise their rights under the
respective act. See 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d).
3
placement on the PIP and in her termination, and various state law
tort claims not relevant to this appeal.
Tandem moved for summary judgment, offering evidence that its
adverse employment actions were based on legitimate
nondiscriminatory reasons, namely Ray's lackluster performance.
Ray contended that these reasons were pretextual and that various
work-related incidents and remarks by her supervisors demonstrated
Tandem's discriminatory animus in the challenged actions. The
district court ruled that Ray failed to provide sufficient evidence
that Tandem's articulated legitimate nondiscriminatory reasons were
pretexts for either sex or age discrimination or retaliation.5 Ray
timely appealed.
Analysis
We review the district court's grant of summary judgment de
novo. "Summary judgment is proper when no issue of material fact
exists and the moving party is entitled to judgment as a matter of
law. In determining whether summary judgment was proper, all fact
questions are viewed in the light most favorable to the
non-movant."6
Ray claims that Tandem discriminated on the basis of sex in
5
The district court ruled that Ray's claims based on
incidents occurring prior to August 22, 1991 were timed-barred.
See 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d)(2). Ray does not
appeal this ruling.
6
Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir.)
(citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 467,
126 L.Ed.2d 419 (1993).
4
reassigning her accounts to younger males, in denying her
promotions and transfers within the company, in denying her
requests for increased compensation, in placing her on a PIP, and
ultimately in discharging her. For the purposes of today's
disposition, we assume, as did the district court, that Ray
established a prima facie case of sex discrimination on these
allegations.7 Under the burden shifting framework established in
McDonnell Douglas Corp. v. Green8 and its progeny, this showing
requires Tandem to articulate a legitimate nondiscriminatory reason
for its adverse employment actions.
In its motion for summary judgment Tandem offered evidence
that it based its employment decisions upon neutral
performance-related factors. Tandem maintained that smaller
accounts were regularly taken from all senior sales
representatives, whether male or female, and given to younger sales
representatives who were paid lower commissions. This allowed the
more senior representatives to focus their efforts and experience
on more lucrative and difficult accounts. Tandem maintained that
Ray's poor performance from 1989 until her discharge motivated its
pay increase and promotion decisions,9 the decision to place her on
the PIP, and its decision to terminate her employment. Finally,
7
See Davis v. Chevron U.S.A. Inc., 14 F.3d 1082 (5th
Cir.1994) (outlining the prima facie case for discrimination
claims).
8
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
9
Tandem also notes that the employees against which Ray
seeks to compare salaries held different titles and job
responsibilities and were paid on a different scale.
5
Tandem maintained that Ray's request for a transfer to another
office was not processed after Ray told her supervisor that she did
not want to move. In articulating these reasons, Tandem met its
burden of production.10
We thus turn to the ultimate question: whether Ray has
provided sufficient summary judgment evidence that Tandem
discriminated against her on the basis of sex.11 Ray seeks to
establish that Tandem's proffered reasons are pretexts for
discrimination by demonstrating discriminatory animus in certain
pre-limitations period actions.12 First, she contends that the
pre-limitations period assignment of the lucrative Mobil Oil
account to Koenigs and a nonproducing account to her demonstrates
Tandem's sexual bias in the workplace. We are not persuaded. The
record reflects that Koenigs had significantly better relations
with Mobil than did Ray and that she requested the assignment of
the questioned account. Her subjective belief that discriminatory
intent motivated these actions is insufficient to establish a
material question of fact regarding Tandem's motives.13
Next, Ray contends that her supervisor's scheduling of a
10
St. Mary's Honor City v. Hicks, --- U.S. ----, ----, 113
S.Ct. 2742, 2748, 125 L.Ed.2d 407 (1993) ("By producing evidence
(whether ultimately persuasive or not) of nondiscriminatory
reasons, petitioners sustained their burden of production.").
11
Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993).
12
We note that time-barred acts can be used as evidence of
discriminatory intent in later actions. See Cortes v. Maxus
Exploration Co., 977 F.2d 195 (5th Cir.1992) (citing cases).
13
Molnar v. Ebasco Constructors, Inc., 986 F.2d 115 (5th
Cir.1993).
6
lunch meeting at Hooters restaurant is evidence of Tandem's
sexually discriminatory animus in the challenged actions.14
Although we agree that scheduling a business meeting for mixed
company at Hooters was grossly unprofessional and may be relevant
to a supervisor's motives in employment actions, it is not
sufficient to support a discrimination verdict absent some proof of
a causal connection between the incident and the adverse employment
action.15
Ray also contends that this discriminatory environment is
further demonstrated by Keister's alleged statement four years
prior to her discharge that he was going to get rid of "the cunt in
the office." While the repeated use of this crude and contumelious
appellation might well support a finding of discriminatory animus,16
a single comment, made several years prior to the challenged
conduct, is a stray remark too remote in time to support an
inference of sex discrimination in later employment actions.17 Ray
also points to Tandem supervisor Jerry Earle's statement that
14
We underscore that Ray expressly disavows raising any
hostile environment or sexual harassment claims.
15
Moore. Ray also points to an incident on a company golf
outing where another female Tandem employee attempted to
discourage Ray from playing golf. This incident suggests only
that another Tandem employee was mistaken in assuming that Ray
did not play golf; it does not support an inference of sex
discrimination.
16
Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858
(5th Cir.1993) (concluding that routine use of the word "nigger"
was direct evidence of discrimination).
17
See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th
Cir.1995).
7
Koenigs was the "better man for the job" when explaining to Ray why
the Mobil account was being reassigned. The record reflects that
Tandem had an ample basis to conclude that Koenigs was better
suited for the position because of his strong contacts and
extensive experience with key Mobil personnel. Earle's
articulation of this fact using the common but clearly dated phrase
"better man for the job" does not support a finding of
discriminatory animus in the challenged actions.18
Ray's remaining evidence of discrimination is equally
unpersuasive. Although she complains about Tandem's initial denial
of a reservation of commissions following her removal from the
MoneyMaker account and Tandem's later placement of her on PIP, she
fails to controvert Tandem's evidence that other similarly situated
employees, both male and female, were treated the same.19 The
district court's entry of summary judgment for Tandem on this claim
must be affirmed.
Ray next contends that the district court erred in entering
summary judgment for Tandem on her age discrimination claims.
18
See Guthrie v. Tifco Industries, 941 F.2d 374 (5th
Cir.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117
L.Ed.2d 495 (1992). See also Neuren v. Adduci, Mastriani, Meeks
& Schill, 43 F.3d 1507 (D.C.Cir.1995) (holding use of term
"bitch" in employee evaluation not to support finding of
discriminatory animus when considered in conjunction with
evidence indicating that evaluation was based on gender-neutral
factors).
19
Ray's claims of discrimination are undermined by her
statement that Keister was an even-handed harasser, treating all
of his employees poorly. Title VII does not exist to punish poor
management skills; rather, it exists to eliminate certain types
of bias in the workplace. See Bienkowski v. American Airlines,
Inc., 851 F.2d 1503 (5th Cir.1988).
8
Again we assume, arguendo, that Ray established a prima facie case
of discrimination.20 Ray fails, however, to demonstrate that
Tandem's articulated reasons for its actions were pretextual.
Although Ray makes several conclusionary assertions that her
supervisors showed preference to younger sales representatives, she
provides no evidence of this preference other than her own
assertions that older workers are routinely "forced out" by Tandem.
We conclude that Ray's bald assertions of age discrimination are
inadequate to permit a finding that proscribed discrimination
motivated Tandem's actions against her.21
Finally, Ray contends that she provided sufficient evidence
to support a finding that Tandem retaliated against her because of
her complaints of sex discrimination when it placed her on a PIP
and terminated her employment. Ray has made out a sufficient prima
facie case of retaliation;22 she filed a sex discrimination
complaint with Tandem's human resources department and was placed
on a PIP shortly thereafter.23 As with other Title VII claims, the
20
We apply the same analysis to Ray's age claim that we
applied to her sex discrimination claim. See Burns v. Texas City
Refining, Inc., 890 F.2d 747 (5th Cir.1989).
21
Molnar.
22
To establish a prima facie case of retaliation, Ray must
demonstrate: "(1) that she [ ] engaged in an activity protected
by Title VII, (2) that an adverse employment action occurred;
and (3) that there was a causal connection between the
participation in the protected activity and the adverse
employment action." EEOC v. J.M. Huber Corp., 927 F.2d 1322,
1326 (5th Cir.1991) (quoting McMillan v. Rust College, Inc., 710
F.2d 1112, 1116 (5th Cir.1983)).
23
See Payne v. McLemore's Wholesale & Retail Stores, 654
F.2d 1130 n. 13 (5th Cir.1981) (allowing inference of causation
9
establishment of a prima facie case of retaliation shifts the
burden to Tandem to articulate a legitimate nonretaliatory reason
for its adverse actions. If done, Ray must then prove that
Tandem's reasons are pretextual and that "but for" her protected
activities, she would not have been subject to the adverse
actions.24
Tandem justified its placement of Ray on a PIP on the basis
that she had failed to meet her sales quota in every year since
1989. We therefore turn to Ray's evidence to determine whether a
jury could find that "but for" her complaints of discrimination,
she would not have been placed on the PIP or ultimately discharged.
Ray relies principally upon an alleged statement by Keister to Ray
shortly after she had been placed on the PIP to the effect that "if
you had not gone crying to your friends in Cupertino (Tandem's
headquarters), you would not be in the position you are in." She
characterizes this statement as an admission that her complaints
resulted in her placement on the PIP.
Ray accords too much significance to this oblique statement.
The record reflects that Ray made numerous complaints to Keister's
supervisors listing a multitude of perceived problems explaining
her poor performance, only one of which was discrimination. When
considered in light of this history, this single vague statement is
based on employer's knowledge of activities and temporal
proximity of this knowledge and the adverse action), cert.
denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982).
24
Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th
Cir.1992); Jack v. Texaco Research Center, 743 F.2d 1129 (5th
Cir.1984).
10
susceptible of several interpretations, most of which are
innocuous. We have held that such statements are insufficient to
avoid summary judgment on discrimination claims.25 We now likewise
hold with respect to claims of retaliation. This conclusion is
supported by Tandem's history of tolerance for Ray's claims of
discrimination since they began in 1983.26
Ray also points to a 1988 statement by Keister where he
observed that Ray frequently "cried wolf" regarding discrimination.
Even if we construe this observation as evincing disdain for Ray's
exercise of her protected rights, this remark occurred almost four
years prior to the alleged retaliation and is too remote to support
a finding that her complaints of discrimination were the "but for"
cause of her placement on the PIP or her termination.27 The same
is true for Keister's alleged remark in 1988 that he wanted "to get
rid of Rosie." We also note that each of the remarks Ray relies on
to demonstrate pretext for retaliation is attributable to Keister.
Tandem offered uncontroverted evidence that Keister was not solely
responsible for the decision to place Ray on a PIP and that he had
no input into the decision to terminate her. Under these
circumstances, we perforce conclude that Ray failed to demonstrate
25
See Guthrie.
26
See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261
(5th Cir.1994). Ray admits that she had complained to Tandem
about Keister as early as 1989 and sought to have him fired on
numerous occasions.
27
See Waggoner v. City of Garland, Tex., 987 F.2d 1160 (5th
Cir.1993) (finding statements too remote to support finding of
discrimination under ADEA); Armendariz.
11
that Tandem's proffered reasons for its adverse employment actions
were pretexts for illegal retaliation or that "but for" her
complaints of discrimination, she would not have suffered these
adverse employment actions.28
The judgment appealed is AFFIRMED.
28
Cf. McMillan (upholding summary judgment for employer on
retaliation claims despite open criticism by employer of
employee's discrimination complaints when clear that employee
would have suffered adverse action in any event).
12