IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-40466
Summary Calendar
___________________
MARTHA A. DEAVER,
Plaintiff-Appellant,
versus
A BEAUMONT TEXAS COMMERCE BANK;
TRANSITION MANAGEMENT SERVICES CO.,
Defendants-Appellees
________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(1:94-CV-300)
________________________________________________
February 6, 1996
Before KING, GARWOOD and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Plaintiff-appellant Martha A. Deaver (Deaver) was terminated
from her position with defendant-appellee Texas Commerce Bank on
March 3, 1993. She brought this suit against her former employer
alleging age discrimination, and Texas Commerce Bank moved the
district court for summary judgment as to all of Deaver’s claims.
The district court granted the motion, and Deaver now appeals. We
affirm.
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
Facts and Proceedings Below
Deaver went to work for First City Bank of Beaumont (FCBB) in
1952. Serving as a secretary, she was eventually promoted to
secretary for the Chairman of the Board. In 1975, Deaver began
working in the Consumer Lending Department of FCBB as an assistant
cashier. In 1977, she took on the additional responsibilities of
supervisor for loan operations. In 1979, she was elected Assistant
Vice President of Consumer Lending, a position which she held for
three years. In 1983, Deaver was promoted to Vice President of
Consumer Lending, and continued in that position until she was
appointed Manager and Vice President of Consumer Lending in April
1991.
In October 1992, FCBB——along with many other First City Bank
subsidiaries and affiliates——failed and was taken over by the FDIC.
Texas Commerce Bank (TCB) acquired what had been FCBB (and other
First City banks) on February 24, 1993, and reopened FCBB as New
First City Bank - Beaumont. TCB formed a wholly-owned subsidiary
company called Transition Management Services Co. (TMSC), which,
among other functions, employed the former employees of FCBB
pending TCB’s determination of which employees would be retained.1
Deaver was notified in October 1992 that she was to be
transferred from FCBB’s downtown branch to its Gateway Branch in
Beaumont (Gateway) effective November 1992. Although Deaver had
built up a substantial customer loan portfolio and client base over
1
TCB and TMSC will be referred to collectively as TCB.
2
the years, she was required to turn this portfolio over to her
replacement at the downtown branch. At Gateway, Deaver was
employed as a “Personal Banker” because TCB did not have the
position “Consumer Lender”. Clay Whitten (Whitten), a forty-four-
year-old TCB employee, and Tommie Kennedy (Kennedy), a branch
manager in her fifties, were already serving as Personal Bankers
when Deaver, at age fifty-seven, arrived at Gateway.
On March 3, 1993, Sherry Pool Turner (Turner), the Vice
President and Human Resources Director for TCB, informed Deaver
that she had been terminated. In response to Deaver’s inquiries,
Turner stated that she was fired due to job duplication, and
refused to comment further.
Deaver filed this suit against TCB in the court below on May
24, 1994, alleging that TCB had violated (1) Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.; (2) the
Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; and
(3) the Texas Commission on Human Rights Act, Tex. Rev. Civ. Stat.
Ann. Art. 5221k (repealed and codified as Tex. Lab. Code § 21.001,
et seq.).2
In response to Deaver’s allegations, TCB provided some insight
into its decision to terminate Deaver. As a backdrop to this
decision, TCB stated that it had determined that the Gateway Branch
had a sufficient loan volume to justify the continued employment of
2
Although Deaver initially brought allegations against TCB of
both gender and age discrimination, only the allegations of age
discrimination are at issue on this appeal.
3
only two lenders. Kennedy’s additional managerial responsibilities
secured her position as one of the two lenders who would be kept
on. Deaver and Whitten were both considered for the remaining
position. In its Statement of Position to the EEOC, TCB gave the
following reasons for its decision to terminate Deaver: (1) Deaver
had received negative reports from her supervisors, whereas the
former FCBB officers had given Whitten favorable recommendations;
(2) Deaver had completed no college work or formal credit training
while Whitten had approximately twenty years of experience in the
credit and collections arena;3 and (3) Deaver’s loan production and
client base were inferior to Whitten’s.4
TCB filed for summary judgment as to all of Deaver’s claims on
February 22, 1995, and the district court confronted considerable
evidence as to each of these factors relating to Deaver’s
termination. Turning to the first, and decidedly most critical,5
of these factors——that Deaver had received negative reports from her
supervisors——TCB put abundant evidence before the district court to
explain its unfavorable view of Deaver’s job performance. TCB
3
Whitten was employed by FCBB at the Gateway branch in 1990.
4
In its motion for summary judgment, TCB maintained that the
decision to terminate Deaver was made without any consideration of
Whitten’s relative strengths and weaknesses. By comparison,
Deaver’s claims are premised on the contention that TCB fired
Deaver in order to retain the services of a younger employee.
5
Both John Raney (Raney), Executive Vice President of TCB, and
Turner testified in their depositions that they relied primarily
upon non-documented information obtained from Deaver’s supervisors
in constructing their evaluations of Deaver; Raney testified that
in making his decision he accorded approximately seventy percent
weight to the negative comments of former FCBB officers.
4
noted that the final decision to terminate Deaver was made by Raney
and Turner. Raney testified that the decision in Deaver’s case was
based primarily on information obtained from former FCBB officers;
however, Raney and Turner also considered information obtained in
an interview of Deaver, as well as documents reflecting Deaver’s
job performance in 1991 and 1992. Turner summed up the impression
she formed of Deaver in the course of collecting this information
as follows: “Martha resisted change. She questions management’s
decisions. She was a chronic complainer. This was not the type of
behavior we wanted.” Raney was advised by Wilton White (White),
former Chairman of the Board and CEO of FCBB, that Deaver “was not
the best fit for the job, that she was uncooperative and not
supportive of management decisions.” Raney also was told by
Shelton McClure (McClure), Deaver’s immediate supervisor, and Gene
Chambliss, former Vice President and Manager of New First City
Human Services, that Deaver had reacted negatively to, and was
unsupportive of, management’s decision to relocate the consumer
lending department to a different floor within the First City Bank
Building. Additionally, White and McClure advised Raney that
Deaver had reacted negatively and unreasonably when a question
arose regarding her job title and responsibilities in 1991, and
McClure further reported that Deaver had “reacted very negatively”
to her transfer to Gateway. Finally, Tommie Kennedy, former Senior
Vice President of Gateway, informed Raney that Deaver was “a
marginal-performance employee who did only what was marginally
required and spent the least amount of time to do the job.” Turner
5
received similarly negative assessments of Deaver’s performance in
1991 and 1992 from Deaver’s superiors.
Deaver responded to this evidence on several levels. First,
she challenged these criticisms and assessments generally, offering
evidence that, up until the day before her termination, she boasted
an umblemished record documenting her forty-one years with FCBB.
Recognizing, however, that this commendable documented testimony to
her employment history did not include the years 1991 or 1992,6 she
also challenged the criticisms specifically, offering rebuttal to
or explanation for several of these damning oral evaluations. In
response to Raney’s testimony that he considered Deaver’s absence
for forty-eight days during 1992 to have been unsatisfactory,
Deaver put forward evidence that these absences stemmed from her
mother’s death. Deaver also challenged Raney’s and Turner’s
negative perceptions of Deaver’s conduct on several occasions; she
maintained that Raney and Turner viewed her conduct negatively only
because the episodes were described to them by her former superiors
in a negative light. For example, Deaver contended that, despite
McClure’s assertions, her reaction to management’s decision to
transfer her to Gateway should not have been objectively perceived
as indicative of a resistance to change. According to Deaver, her
long tenure demonstrated that she had no such resistance.
Turning to TCB’s second basis for terminating Deaver in favor
6
Deaver put forward evidence that her last regular performance
evaluation, conducted in 1990, was highly laudatory, and that,
through no fault of Deaver’s, no written evaluations of her were
performed by her supervisor, Shelton McClure, during 1991 or 1992.
6
of Whitten——that Deaver had completed no college work or formal
credit training while Whitten had approximately twenty years of
experience in the credit and collections arena——Deaver offered the
rebuttal that personal bankers do not have responsibility for
determining credit worthiness, but even if they did, her eighteen
years of on-the-job experience more than compensated for her lack
of formal instruction.
Finally, addressing TCB’s third basis for terminating
Deaver——that her loan production and client base were inferior to
Whitten’s——Deaver argued in her motion for summary judgment that TCB
acted arbitrarily in considering only the production reports from
November and December 1992, and January 1993. Deaver acknowledged
that Raney was provided with only those production reports, but
nevertheless maintained that Raney should have taken steps to
secure other reports from more representative periods. Deaver
emphasized that during this period (winter 1992-1993), Whitten was
operating from an established client base and loan portfolio while
she had effectively been forced to start from scratch.
Considering this evidence, the district court granted TCB’s
motion for summary judgment as to all of Deaver’s claims. Deaver
filed a timely notice of appeal.
Discussion
This Court reviews a grant of summary judgment de novo,
drawing all reasonable inferences in favor of the nonmovant and
determining whether the evidence in the summary judgment record is
such that no reasonable juror could find in favor of the nonmovant.
7
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir.
1995).
Deaver maintains that she has established a prima facie case
of age discrimination in the present——“reduction in
workforce”——context. In support of this contention, Deaver cites
this Court’s holding in Thornbrough v. Columbus and Greenville
Railroad Co., 760 F.2d 633 (5th Cir. 1985), in which we determined
that a plaintiff seeking to make out a prima facie case in this
context must:
“(1) satisfy the standing requirements of the [ADEA]
statute by showing that [she] is within the protected
group and that [she] has been adversely affected ——e.g.,
discharged or demoted——by the employer’s decisions;
(2) show that [she] was qualified to assume another
position at the time of the discharge or demotion; and
(3) produce ‘evidence, circumstantial or direct, from
which a fact-finder might reasonably conclude that the
employer intended to discriminate in reaching the
decision at issue.’” 760 F.2d at 642 (citation omitted).
Having shown that she was over the age of forty,7 that she was
discharged by TCB, and that she was qualified to assume another
position at the time of her discharge, Deaver maintains that she
established the first two elements of her prima facie case. Deaver
notes in her brief to this Court that TCB has conceded that these
two elements are established in the present case. Drawing all
inferences in favor of Deaver, we will accept that she established
these two elements of her prima facie case.
Turning to the third element of Deaver’s “reduction-in-force”
7
29 U.S.C. § 631(a) provides that the protections afforded by the
ADEA will apply to persons “at least 40 years of age.”
8
prima facie case, however, this Court finds that Deaver has failed
to adduce “evidence, circumstantial or direct, from which a fact-
finder might reasonably conclude that [TCB] intended to
discriminate in reaching the decision at issue.”8 In its motion
for summary judgment, TCB quoted from Deaver’s deposition to
support its position that Deaver adduced no evidence of age
discrimination:
“Q: Do you think [Clay Whitten, then age 44] had an
unfair advantage over you?
A: In one aspect, yes.
Q: What is that one aspect?
A: He was male, he was younger, and he made less money.
Q: Okay. What is the source of your contention that
he had an unfair advantage because he was a male?
A: Because I feel that because I was an older woman and
made more money and could have been a liability on
the insurance program that he was chosen over me.
Q: What is the source of your feeling in that regard?
A: There’s no source. I just——that’s the way I feel.
And I think the fact that——you know, that there
was no indication yesterday of what questions were
asked or what type of interview probably underlines
8
In Thornbrough, this Court expounded on this third requirement
of a prima facie case:
“[T]he plaintiff must ‘produce some evidence that an
employer has not treated age neutrally, but has instead
discriminated based upon it. Specifically, the evidence
must lead the factfinder reasonably to conclude either
(1) that defendant consciously refused to consider
retaining or relocating a plaintiff because of [her] age,
or (2) that defendant regarded age as a negative factor
in such consideration.’” 760 F.2d at 642 (quoting
Williams v. General Motors Corp., 656 F.2d 120, 129-130
(5th Cir. 1981), cert. denied, 102 S.Ct. 1439 (1982)).
9
what I feel.
Q: But there’s no basis for your feeling in that regard
other than speculation on your part, correct?
A: Well, I do know that most of the people that I came
in contact with in those few days from T.C.B. were
younger employees; and most of them were male.”9
Deaver presently argues that the following facts combine to
establish the third element of her prima facie case pursuant to
this Court’s decision in Thornbrough: (1) Deaver and Whitten were
both considered for the single remaining consumer lending position;
(2) Deaver worked for FCBB and its predecessors from 1952 to 1993,
serving as a consumer lender from 1977 to 1993; (3) Whitten, aged
forty-four, joined FCBB as a consumer lender in 1990; and (4)
Whitten’s previous experience was in collections. Deaver distills
these facts to the observation that Whitten, a younger man with
less experience, was retained instead of her. Additionally, Deaver
argues that TCB inadvertently used “euphemisms for age” when
describing Deaver’s failings, thus exposing TCB’s discriminatory
intent.10 In support of her contention that the facts underlying
this observation establish the third element of her prima facie
case, Deaver draws again from this Court’s holding in Thornbrough:
“[T]he fact that the employer cannot retain every
employee is not conclusive. The question is why, given
the employer’s need to reduce his workforce, he chose to
9
In Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1165 (5th
Cir. 1993), this Court held that a plaintiff’s subjective belief
that her termination resulted from age discrimination is
insufficient to establish an ADEA claim.
10
Specifically, Deaver points to statements characterizing her as
“not a good fit,” “resistant to change,” and not “aggressive”.
10
discharge the older rather than the younger employee. By
shifting the burden of production to the employer, this
is the question that we hope to answer.” 760 F.2d at
645.
TCB presented abundant evidence to the district court to
substantiate its contention that Deaver was terminated on the basis
of unfavorable feedback from her former superiors and poor loan
production. The TCB personnel ultimately responsible for the
decision to terminate Deaver reached this decision only after they
had consulted several of Deaver’s former superiors, interviewed
Deaver, and reviewed her personnel file. Furthermore, it is
undisputed that these sources of information painted a largely
unattractive portrait of Deaver as an employee during 1991 and
1992. While Deaver has presented evidence to explain and counter
some of this damaging information, she has adduced no evidence
tending to show that TCB did not actually rely on the adverse
reports it received.
Even in the present “reduction-in-force” context, when an
employer relies on information (which is not facially absurd)
regarding an employee and in good faith makes a business decision
concerning the employee based on that information, then any
subsequent challenges to the merit or validity of the information
relied upon should not be utilized to “second-guess” the employer’s
decision. This is particularly true in the present situation, as
TCB did not rely primarily on its own evaluations of Deaver, but on
the observations and conclusions of persons who ostensibly made
these observations and formed these conclusions before TCB had an
interest in evaluating Deaver. In this situation, the ultimately
11
determined objective merit of these criticisms of Deaver proves
nothing as to TCB, but only as to Deaver’s (formerly FCBB)
superiors. “Thus, the inquiry is limited to whether [TCB] believed
[these criticisms] in good faith and whether the decision to
discharge [Deaver] was based on that belief.” Waggoner v. City of
Garland, 987 F.2d 1160 at 1165-66 (5th Cir. 1993) (footnote
omitted).
In De Anda v. St. Joseph Hospital, 671 F.2d 850 (5th Cir.
1982), this Court applied this reasoning in a slightly different
context. De Anda, a hospital pharmacist, brought a Title VII suit
against her employer after she was fired for failing to investigate
the potential incompatibility of two solutions being administered
together to a hospital patient.11 De Anda introduced evidence that
the solutions were compatible and St. Joseph presented evidence to
the contrary. Addressing this evidence, this Court observed:
“We do not feel it is within our realm of expertise, nor
is it our duty, to determine if incompatibility existed.
St. Joseph maintained that De Anda should have checked
for incompatibility and that her failure to do so was the
reason for her termination; not whether there was, in
fact, an incompatibility. Whether St. Joseph was wrong
in its determination that she should have checked is
irrelevant, as long as its belief, though erroneous, was
the basis for the termination.” Id. at 854 n. 6
(citation omitted).
See also Jones v. Flagship Intern., 793 F.2d 714, 729 (5th Cir.
1986), cert. denied, 107 S.Ct. 952 (1987) (“. . . Flagship need not
11
De Anda claimed that the real reason for her dismissal was that
she had reported her supervisor to the hospital administration for
what she perceived as racial discrimination in hiring, and that her
termination constituted nothing more than retaliation for her
whistle-blowing.
12
have been correct in its basis for suspending and discharging Jones
to show that its actions were motivated for non-retaliatory
reasons. . . . It is sufficient, as the district court held, that
‘Flagship had reasonable grounds, or in good faith thought it did,’
for its suspension and termination of Jones’ employment”) (footnote
and citations omitted); Singh v. Shoney’s, Inc., 64 F.3d 217, 219
(5th Cir. 1995) (where employer terminated Singh based on petition
sent to employer alleging Singh had engaged in discriminatory
conduct, “The focus of our inquiry is not whether the initial
petition contained falsehoods or was racially motivated, but
whether Shoney’s reasonably believed the allegation and acted on it
in good faith”).
In the present case, therefore, Deaver failed to adduce
sufficient evidence to establish any connection between her age and
TCB’s decision to terminate her employment, and neither her
speculative allegations nor her responses to the unfavorable
information relied upon by TCB raise a genuine issue of material
fact as to whether or not TCB had an age-discriminatory motive for
terminating her.12
Conclusion
For the foregoing reasons, the judgment of the district court
12
Regardless of what is required to establish discriminatory
actions or animus in a context allegedly involving “pretext for
discrimination,” we need not reach this issue at present because
Deaver has raised no question of fact as to TCB’s non-
discriminatory explanation for her termination. See Rhodes v.
Guiberson Oil Tools, 39 F.3d 537, 544-545 (5th Cir. 1994), reh’g
granted, 49 F.3d 127 (1995).
13
is
AFFIRMED.
14