Crawford v. Formosa Plastics Corp.

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

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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.”

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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,

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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

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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.

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 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

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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

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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

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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

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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.

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