United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-10317
IVOR KEELAN and DAVID SULLIVAN,
Plaintiffs-Appellants,
VERSUS
MAJESCO SOFTWARE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
Before REAVLEY, DeMOSS, and PRADO, Circuit Judges.
DeMOSS, Circuit Judge:
Plaintiffs-Appellants Ivor Keelan (“Keelan”) and David
Sullivan (“Sullivan”) (together, “Appellants”) appeal from the
district court’s granting of summary judgment in favor of
Defendant-Appellee Majesco Software, Inc. (“Majesco” or the
“company”) in Appellants’ Title VII national origin employment
discrimination case. For the following reasons, we AFFIRM the
district court’s order.
BACKGROUND
Majesco is a U.S. wholly owned subsidiary of Mastek Ltd.
(“Mastek”). Majesco has an office in Irving, Texas. Mastek was
founded in 1982; is headquartered in Bombay, India; and is publicly
traded on the Bombay Stock Exchange. Mastek’s business is
outsourcing software/IT solutions and technicians for its business
customers. Majesco is one of several wholly owned international
subsidiaries of Mastek. Majesco sells Mastek’s IT products and
services to its customers based locally in the United States.
Keelan, a citizen of the United Kingdom, began working as a
regional sales director for Majesco on or about August 7, 2000, in
the Irving office. He was hired as an employee-at-will, with a
base salary of $110,000, plus a commission structure. He was
terminated in late November 2001 for nonproduction. A female
Canadian national was offered his position but did not accept it.
Sullivan, a U.S. citizen born in El Paso, applied to work at
Majesco in early 2001. Majesco president and Indian national Atul
Vohra (“Vohra”) (former marketing director for Mastek) was one of
Sullivan’s interviewers. Sullivan began working as a director of
alliances for Majesco, as an employee-at-will, on or about March 1,
2001, in the Irving office with a base salary of $120,000, plus a
commission structure. Sullivan signed an employee confidentiality
and inventions agreement and an IRS W-4 withholding certificate
with another software/IT company, AppWorx Corp. (“AppWorx”), on
June 20, 2001. Sullivan took an extended leave from Majesco the
first week of July 2001. He submitted his letter of resignation
dated July 26, 2001. Sullivan’s W-2s from 2001 indicate he earned
more at AppWorx in the five months he worked there than in the five
2
months he worked for Majesco.
During his first four months on the job, Keelan generated no
sales. His then-supervisor Gary Hart (“Hart”), a U.S. national,
counseled Keelan concerning his sales performance. Keelan made
three sales between February and April 2001. He made no sales
after that. Sullivan’s initial supervisor was also Hart. Sullivan
produced no sales while at Majesco. Both Keelan and Sullivan
allege that their sales performances were hindered and obstructed
at Majesco due to the fact they are non-Indian. Appellants also
contend Majesco’s inadequate marking materials and website hindered
their sales performance.
Keelan said he encountered staffing problems because when no
technician employed by Majesco was available for projects, Majesco
only brought in Mastek’s Indian technicians on work visas and would
not staff projects with local non-Indian hires. Keelan stated one
time he lost repeat business because the Indian workers’ visas
expired and they left in the middle of a project.
Sullivan said he encountered similar staffing problems.
Sullivan stated he was told that the company would not staff one of
his projects because it could not get the required people from
India. Sullivan stated a pattern developed where sales brought to
the table by non-Indians probably were not going to be successful.
Another non-Indian Majesco salesperson, Jennifer Walsh
(“Walsh”), based out of New Jersey, also testified to similar
staffing problems. When Walsh asked management why the company
3
would not use local people, she stated she was told that “Americans
need too much handholding.” Walsh was terminated in November 2001
for nonproduction.
Appellants provided other evidence alleging discrimination.
Keelan stated that Vohra (then marketing director for Mastek)
announced at a sales meeting held in India in November 2000 that he
could foresee a time when Mastek would be a totally Indian company.
On April 1, 2001, Vohra was appointed president of Majesco.
Shortly after Vohra became president, Hart resigned and was
replaced by Lokesh Bhagwat, an Indian. Keelan stated that in April
2001, immediately prior to Hart’s leaving, he asked Hart if the
company had a policy of forcing the Americans out and that Hart
replied, “Is there a document out there somewhere that states that,
no; is it practice, of course it is.” Appellants also complained
about their working environment, including the lack of windows, the
small size of their cubicles, and Majesco’s requirement that they
work from the office instead of home.
Yvette Winfrey (“Winfrey”), a non-Indian, was the assistant
human resources director for Majesco. Winfrey testified that both
Keelan and Sullivan complained to her about discrimination at
Majesco. Keelan said Winfrey directed him to the EEOC, but that he
had not yet gone to the EEOC at the time of his termination in
November 2001. Keelan and Sullivan also complained to P.N. Prasad
(“Prasad”), an Indian Majesco executive, about what they perceived
to be discrimination against non-Indians. Keelan said Prasad also
4
stated that “Americans have never worked out” at the company.
Sullivan spoke to Ketan Mehta (“Mehta”), Majesco’s CEO and an
Indian, about the apparent discrimination; Mehta’s response was, “I
can see how you would feel that way.”
Majesco alleges it fell upon hard financial times beginning in
fiscal year 2000. The loss of revenues in fiscal year 2001 was
almost $20 million, and the company suffered a net loss of over
$1.4 million. Because of this, on July 16, 2001, Majesco announced
a new pay plan. This plan consisted of an across-the-board pay
cut: all rank-and-file employees earning more than $60,000 per
year received a ten percent pay cut, with senior management
receiving an even larger decrease. The plan also modified the
commission structure across the board for salesmen. Salaries were
changed to require draws against commission. For example, if a
commission employee had a $75,000 salary and earned $100,000 in
commission, he would receive the difference of only $25,000 in
commission. The plan also specifically excluded commissions on
projects over $5 million. Appellants claim the plan gave Majesco
discretion to divide commissions among salesmen as management saw
fit and, in some instances, not even pay commissions, and thus
would be a vehicle for favoritism and discrimination.
Appellants filed charges of national origin discrimination
with the EEOC. They then filed this action against Majesco in
district court on August 6, 2002, alleging discrimination in the
terms and conditions of their employment and in Keelan’s
5
termination and Sullivan’s constructive discharge. The court
rejected Appellants’ urging that it analyze their case under the
mixed-motive theory. The court determined this was a pretext case
under McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973).1 With
regard to Appellants’ terms and conditions claims, the court found
that the evidence did not support a prima facie case; that is,
nothing showed Appellants were denied any compensation due them or
that Majesco treated similarly situated Indian employees better.
As to Keelan’s discharge claim, the court found he did not meet his
prima facie case because nothing showed that similarly situated
Indian salesmen were treated more favorably than he; that is, that
1
We agree that the McDonnell Douglas burden-shifting analysis
applies to Appellants’ employment discrimination claims:
As the Supreme Court reaffirmed in Reeves [v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000)], “McDonnell
Douglas and subsequent decisions have ‘established an
allocation of the burden of production and an order for
the presentation of proof,’” whereby a “plaintiff must
[first] establish a prima facie case of discrimination.
[After doing so,] [t]he burden [of production] shift[s]
to [the defendant] to ‘produce evidence that the
plaintiff was rejected ... for a legitimate,
nondiscriminatory reason.’” Id. at [142]. If the
defendant is able to produce a legitimate reason, then
the presumption of discrimination vanishes. However,
because the burden of persuasion “‘remains at all times
with the plaintiff,’” the plaintiff is “afforded the
opportunity [to demonstrate that an issue of material
fact exists and] that the legitimate reasons offered by
the defendant were not its true reasons, but were a
pretext for discrimination.” Id. [at 143.]
Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512
(5th Cir. 2001) (alterations in original, except in citations).
6
they were not also counseled and then terminated for poor sales
performance. The court stated that even if Keelan had met his
prima facie case, Majesco rebutted with a legitimate
nondiscriminatory reason for his termination, and “stray remark”
evidence did not raise an issue of pretext. As to Sullivan’s
constructive discharge claim, the court found he did not raise a
genuine issue of fact on constructive discharge because he was not
subjected to objectively intolerable working conditions and because
he left Majesco for what he perceived to be a better job. The
district court granted summary judgment to Majesco and dismissed
Appellants’ claims. Appellants timely appealed Keelan’s discharge
claim and Sullivan’s constructive discharge claim.
DISCUSSION
This Court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004). Under
Federal Rule of Civil Procedure 56(c), summary judgment is proper
when 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 judgment as a matter of law.” FED. R.
CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). When making its determination, the court must draw all
7
justifiable inferences in favor of the nonmovant. Bodenheimer v.
PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).
I. Whether the district court erred by requiring that Appellants
provide evidence of similarly situated Indian employees
receiving preferential treatment to prove up their prima facie
case of discrimination.
On appeal, Appellants argue that the district court applied an
erroneous standard under McDonnell Douglas by deciding that only
one method of proof would allow them to meet the essential
discrimination element of their prima facie case – showing that
Majesco treated similarly situated Indians employees differently
than non-Indian employees. Appellants maintain the utilization of
this exclusive approach to prove a prima facie case is contrary to
Supreme Court and Fifth Circuit caselaw, which indicates there is
no single route required to establish a prima facie case. See,
e.g., McDonnell Douglas, 411 U.S. at 802 n.13; Thornbrough v.
Columbus & Greenville R.R. Co., 760 F.2d 633, 641 & n.10 (5th Cir.
1985), abrogated on other grounds, St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502 (1993).
Appellants agree that the similarly situated type of proof the
court required here can be helpful to prove up a prima facie case,
but only where the company involved has several similarly situated
employees. Appellants maintain that each of their jobs was unique:
Sullivan was the only director of alliances, and Keelan was the
only Majesco salesman in charge of the central U.S. region.
8
Appellants argue that because realistic comparisons cannot be made,
they instead relied on other evidence.
Majesco insists that Appellants did not properly challenge the
district court’s formulation of the McDonnell Douglas prima facie
case in the district court. Majesco argues its summary judgment
motion put Appellants on notice that Majesco was seeking summary
judgment because: (1) Appellants failed to establish that
similarly situated persons had been treated differently in their
terms and conditions of employment, (2) Keelan failed to identify
a similarly situated person treated differently as to his
discharge, and (3) Keelan failed to raise a genuine fact issue on
pretext as to his discharge. Majesco maintains even with two
opportunities (response to summary judgment and permissive sur-
reply brief), Appellants never took issue with Majesco’s statement
of the applicable elements of the McDonnell Douglas prima facie
case. Majesco insists Appellants said nothing about the lack of
similarly situated persons outside their class. Instead, Majesco
argues, Appellants only continued to argue that Desert Palace, Inc.
v. Costa, 539 U.S. 90 (2003), changed the landscape of Title VII
law by replacing McDonnell Douglas such that the granting of
summary judgment in Title VII cases would be severely limited.
However, Majesco contends this Court recently affirmed the
McDonnell Douglas formulation as to the fourth element of the prima
facie case. See Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360-
9
61 (5th Cir. 2004) (affirming summary judgment against black
plaintiff where record showed white associate principals also
terminated).
The district court used the following formulation of the
McDonnell Douglas prima facie case: plaintiffs must show (1) they
are members of a protected class; (2) they were qualified for their
positions; (3) they suffered an adverse employment action; and (4)
others outside the class who were similarly situated were treated
more favorably than they were treated. See Urbano v. Cont’l
Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
It is well settled in this Circuit that the scope of appellate
review on a summary judgment order is limited to matters presented
to the district court. Keenan v. Tejeda, 290 F.3d 252, 262 (5th
Cir. 2002); Frank C. Bailey Enters., Inc. v. Cargill, Inc., 582
F.2d 333, 334 (5th Cir. 1978). “If a party fails to assert a legal
reason why summary judgment should not be granted, that ground is
waived and cannot be considered or raised on appeal.” Keenan, 290
F.3d at 262 (internal quotation marks and citation omitted). If a
party wishes to preserve an argument for appeal, the party “must
press and not merely intimate the argument during the proceedings
before the district court.” New York Life Ins. Co. v. Brown, 84
F.3d 137, 141 n.4 (5th Cir. 1996) (quoting FDIC v. Mijalis, 15 F.3d
1314, 1327 (5th Cir. 1994)). An argument must be raised “to such
a degree that the district court has an opportunity to rule on it.”
10
Id.
We note “[p]rior case law has not consistently applied Title
VII’s burden-shifting framework to the question of whether a
similarly-situated employee outside the plaintiff’s protected class
was treated more favorably.” Nieto v. L&H Packing Co., 108 F.3d
621, 623 n.5 (5th Cir. 1997). However, based upon our careful
review of the record, we agree with Majesco that Appellants did not
properly raise in the district court the argument that showing
similarly situated employees were more favorably treated to meet
the fourth element of McDonnell Douglas is not required to prove up
a prima facie case of discrimination. While Appellants objected
that their case should be treated under a mixed-motive theory per
Desert Palace, they did not object to the similarly situated
disparate treatment formulation of the fourth element of the prima
facie case. Because Appellants did not sufficiently object below,
the district court did not have any opportunity to rule on their
argument; Appellants’ legal argument on formulation is thus waived.
See Keenan, 290 F.3d at 262; Brown, 84 F.3d at 141 n.4. We cannot
address this point of error. Keenan, 290 F.3d at 262.
II. Whether the district court erred by not analyzing Appellants’
case under the mixed-motive theory.
Appellants do not extensively brief the argument that the
district court should have evaluated their evidence under Desert
Palace. Appellants merely insist that “the Supreme Court did not
11
say what impact Desert Palace would have on McDonnell Douglas
[because] the result is so obvious it is likely the Court felt no
need to explain” – that result being summary judgment is almost
never proper. Majesco responds that under any interpretation of
Desert Palace, Appellants still must demonstrate a prima facie case
of discrimination, see Rachid v. Jack In The Box, Inc., 376 F.3d
305, 312 (5th Cir. 2004), and they failed to do so here.
Under the mixed-motive paradigm, a plaintiff need only show
that the protected characteristic was a “motivating factor for any
employment practice, even though other factors also motivated the
practice.” 42 U.S.C. § 2000e-2(m). In Desert Palace, the Supreme
Court explained: “In order to obtain an instruction under § 2000e-
2(m), a plaintiff need only present sufficient evidence for a
reasonable jury to conclude, by a preponderance of the evidence,
that ‘race, color, religion, sex, or national origin was a
motivating factor for any employment practice.’” 539 U.S. at 101.
Desert Palace thus answered a disputed question from Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), clarifying that direct
evidence of the “motivating factor” is not needed to shift the
burden of proof to the employer to affirmatively show that it would
have treated the plaintiff the same in the absence of the unlawful
motivating factor; circumstantial evidence of the motivating factor
can be enough. 539 U.S. at 99-101. Desert Palace had no effect on
pretext cases under McDonnell Douglas. See, e.g., Raytheon Co. v.
12
Hernandez, 540 U.S. 44, 49 & n.3 (2003) (noting, in a case post-
Desert Palace, the consistent use of the “familiar” McDonnell
Douglas burden-shifting approach for disparate treatment cases).
This Circuit has adopted use of a “modified McDonnell Douglas
approach” in cases where the mixed-motive analysis may apply. See
Rachid, 376 F.3d at 312. After the plaintiff has met his four-
element prima facie case and the defendant has responded with a
legitimate nondiscriminatory reason for the adverse employment
action:
[T]he plaintiff must then offer sufficient evidence to
create a genuine issue of material fact either (1) that
the defendant’s reason is not true, but is instead a
pretext for discrimination (pretext alternative); or (2)
that the defendant’s reason, while true, is only one of
the reasons for its conduct, and another motivating
factor is the plaintiff’s protected characteristic.
(mixed-motive[s] alternative).
Id. (internal quotation marks and citations omitted). The question
of pretext versus mixed-motive treatment is only reached after a
plaintiff has met his prima facie showing under the modified
McDonnell Douglas standard and the defendant has responded with a
legitimate nondiscriminatory reason. Id. If the plaintiff
demonstrates the protected characteristic was a motivating factor
in the employment decision (meets the mixed-motive showing), which
pursuant to Desert Palace may be achieved through circumstantial
evidence, Rachid, 376 F.3d at 311-12, “it then falls to the
defendant to prove that the same adverse employment decision would
13
have been made regardless of discriminatory animus. If the
employer fails to carry this burden, plaintiff prevails.” Id. at
312 (internal quotation marks and citation omitted). In Rachid,
this Court determined that enough fact issues still remained at the
summary judgment stage, after plaintiff had met his prima facie
case and the employer had replied with a nondiscriminatory reason,
such that Rachid’s case could not be adequately determined to be
either pretext or mixed-motive. Id. at 316.
Appellants desire that their case be analyzed under Desert
Palace, which is a mixed-motive case, but they also erroneously
argue that Desert Palace changed McDonnell Douglas, which governs
disparate treatment cases premised on pretext. The district court
acknowledged Appellants’ request. However, the court denied such
mixed-motive treatment primarily because it found “no evidence that
Majesco had legitimate and illegitimate reasons for discharging
Keelan.”2
As discussed in sections III and IV below, both Keelan and
Sullivan failed to raise sufficient evidence to support their prima
facie cases of discrimination. Therefore, this case is
distinguishable from Rachid, see 376 F.3d at 316, because here the
2
The EEOC, as amicus, argues that regardless of whether Keelan
can show pretext, his evidence raises a fact question as to whether
his national origin was a motivating factor in his discharge.
However, for the same reasons as discussed in section IV, even if
Keelan could arguably meet his prima facie case, his evidence does
not raise that fact question.
14
district court did not need to reach the question of whether
Appellants created fact issues on either or both of pretext or
mixed-motive. We thus find no error.
III. Whether the district court erred by finding Sullivan had not
shown constructive discharge to meet the adverse employment
element of his prima facie case.
Sullivan argues the district court incorrectly determined that
he had not presented enough evidence to create a material fact
issue on constructive discharge, which was the adverse employment
action Sullivan alleged Majesco took against him. Sullivan
protests the court’s statement that he was not constructively
discharged because he had not received a “significant change in
benefits.” Sullivan contends the detrimental impact of the new
commission structure, coupled with Majesco’s environment in which
non-Indian-initiated sales were discouraged, indicated the kind of
intolerable working conditions that would force one to resign. In
addition, Sullivan argues the district court solely looked to the
fact that he retained his job title, which is not part of the
constructive discharge test, instead of considering how Sullivan
had less potential to earn commissions under Majesco’s new plan.
See Pegram v. Honeywell, Inc., 361 F.3d 272, 284 (5th Cir.
2004)(recognizing the disparity in a reassigned employee’s
potential incentive compensation as evidence of an adverse
employment action).
Majesco responds that Sullivan failed to present any evidence
15
of intolerable working conditions that compelled his resignation.
Majesco contends the evidence Sullivan did present – the new pay
and compensation plan, being required to work from the office and
from cubicles, inadequate marketing materials, and Majesco’s
business method of staffing projects with Mastek consultants – did
not show discrimination or hostility because these policies and
practices were neutrally applied.
This Court has explained:
The general rule is that if the employer deliberately
makes an employee’s working conditions so intolerable
that the employee is forced into an involuntary
resignation, then the employer has encompassed a
constructive discharge and is as liable for any illegal
conduct involved therein as if it had formally discharged
the aggrieved employee.
Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990) (citation
omitted). Whether an employee would feel forced to resign is case-
and fact-specific, but we consider the following factors relevant,
singly or in combination:
(1) [D]emotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a younger
[or less experienced/qualified] supervisor; (6)
badgering, harassment, or humiliation by the employer
calculated to encourage the employee's resignation; or
(7) offers of early retirement [or continued employment
on terms less favorable than the employee’s former
status].
Haley v. Alliance Compressor LLC, 391 F.3d 644, 649-50 (5th Cir.
2004) (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th
Cir. 2001)) (alterations in original) (footnote omitted). The test
16
that Sullivan must meet is an objective, “reasonable employee”
test: whether a reasonable person in the plaintiff’s shoes would
have felt compelled to resign. Barrow v. New Orleans S.S. Ass’n,
10 F.3d 292, 297 n.19 (5th Cir. 1994). “Constructive discharge
requires a greater degree of harassment than that required by a
hostile environment claim.” Brown, 237 F.3d at 566. Aggravating
factors used to support constructive discharge include hostile
working conditions or the employer’s invidious intent to create or
perpetuate the intolerable conditions compelling the resignation.
Jurgens, 903 F.3d at 393 n.10. “The resigning employee bears the
burden to prove constructive discharge.” Haley, 391 F.3d at 650.
We agree with the district court that Sullivan did not meet
his burden of showing constructive discharge. To begin, we do not
accept that the requirement to work from the office, a policy
Majesco applied across the board, constitutes hostility or
harassment. Neither does having to work from a cubicle-type office
space; all the nonsupervisor Majesco salespersons worked from the
“Bullpen.” The testimony in the record also reflects that all
Majesco salespersons – Indian and non-Indian – utilized the same
marketing materials and website. While Appellants speculate that
the pay cut and change in commission structure would not be
neutrally applied, nothing supports that this practice ever took
place. The evidence instead shows the blanket, neutral nature of
the business decision made in light of Majesco’s revenue decrease.
17
See Jurgens, 903 F.2d at 392-93 (affirming summary judgment for
employer where white plaintiffs were demoted as part of a blanket,
racially neutral reorganization). Unlike the plaintiff in Pegram,
who individually suffered a job transfer where less commission was
possible, 361 F.3d at 283-84, the Majesco salespersons altogether
faced the same potential commission loss under the new plan. We
find none of these working conditions objectively constitutes a
“greater degree of harassment than that required by a hostile
environment claim.” Brown, 237 F.3d at 566.
Sullivan also presents no, much less compelling, evidence that
his job responsibilities were reduced or that he was assigned to
menial work in spite of his job title remaining the same. See
Brown v. Bunge Corp., 207 F.3d 776, 782-83 (5th Cir. 2000)
(affirming summary judgment for employer where ADEA plaintiff
suffered a demotion and fewer job responsibilities). There is also
no evidence that anyone at Majesco ever badgered Sullivan by asking
him when he was going to quit. See Stephens v. C.I.T. Group/Equip.
Fin., Inc., 955 F.2d 1023, 1027-28 (5th Cir. 1992) (affirming a
jury verdict on constructive discharge, where ADEA plaintiff had
not only been demoted, but also faced significant reductions in
salary and responsibilities, and was repeatedly questioned by his
younger supervisor as to when he was going to quit).
Moreover, Sullivan accepted a higher-paying job with another
software company prior to the implementation of the new
18
compensation and commission plan. If Sullivan had, or perceived he
would have, a grievance with the new compensation and commission
plan, a reasonable employee would have waited to see just how his
paycheck was practically affected before seeking out a potentially
higher paying job and resigning. See Haley, 391 F.3d at 652
(noting reasonable employee attempts resolution of employment
concerns before quitting); McKethan v. Texas Farm Bureau, 996 F.2d
734, 741 (5th Cir. 1993) (same); Bozé v. Branstetter, 912 F.2d 801,
805 (5th Cir. 1990) (same). The district court decided this issue
correctly; Sullivan does not meet the adverse employment action
prong of his prima facie case.
IV. Whether the district court erred in finding that Keelan had
not met the discrimination element of his prima facie case
under McDonnell Douglas.
We now address whether Keelan has presented sufficient
evidence to meet his prima facie case and show pretext as to his
discharge. The parties here only dispute the discrimination
element of McDonnell Douglas – whether Keelan produced sufficient
summary judgment evidence to raise a genuine issue of fact that
similarly situated Indian salespersons were treated more favorably
than he – and pretext.3 Keelan attempts to meet this prima facie
element with various evidence. Keelan first argues that Supreme
3
This Court uses the same McDonnell Douglas standard employed
by the district court. See Patrick v. Ridge, 394 F.3d 311, 315
(5th Cir. 2004).
19
Court and this Court’s caselaw indicate the importance of workforce
statistical evidence in proving discrimination, which he contends
the district court did not give proper weight to here.4 See Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977);
Parson v. Kaiser Aluminum & Chem. Corp., 575 F.2d 1374, 1379-80
(5th Cir. 1978). Moreover, Keelan argues his and Sullivan’s
testimony as well as that of Walsh brought the “cold numbers” of
the pro-Indian Majesco statistics to life. See Teamsters, 431 U.S.
at 339. Keelan insists that Majesco’s plan to have an all-Indian
workforce had an adverse impact on his ability to sell; and the
court should not have made the finding that Keelan, and not
Majesco, was the reason Keelan did not meet his sales goals.
Keelan contends making this inference is not proper on summary
judgment. See United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).
Keelan also argues that the district court improperly
disregarded all of Appellants’ evidence related to Majesco’s
executives’ prejudicial mindset which favored Indians and
disfavored non-Indians as “stray remarks.” Keelan argues this
probative evidence indicated Majesco’s intent to take the necessary
steps to achieve an all-Indian workforce. Keelan points not only
to his removal from Majesco, but also to Sullivan’s forced
4
As part of their summary judgment evidence, Appellants
submitted a list of Majesco employees as of August 2003, which
indicated that 8 of 137 employees were non-Indian.
20
resignation and the termination of Walsh, as corroborating the
plan. Keelan contends the various prejudicial statements by
Majesco executives cannot be disregarded as stray remarks because
they were outright admissions by persons controlling company
decisions. See Palasota v. Haggar Clothing Co., 342 F.3d 569, 578
(5th Cir. 2003).5
Majesco argues Appellants have waived any error in the
district court’s evidentiary determinations by not raising such
objections in their opening brief. Majesco contends the court
properly disregarded Appellants’ evidence that was either hearsay,
irrelevant, or unauthenticated. Majesco also informs this Court as
to Appellants’ improper briefing; that is, Appellants failed to
cite to the record for many of their assertions. Majesco asserts
5
We note Palasota is distinguishable. There, the jury found
for the plaintiff on his ADEA claim, and the court then ruled for
judgment as a matter of law for the employer. 342 F.3d 569, 573-74
(5th Cir. 2003). In that posture, “it is unnecessary to ‘parse the
evidence into discrete segments corresponding to the different
stages’ of the McDonnell Douglas framework.” Id. at 574 (quoting
Scott v. Univ. of Miss., 148 F.3d 493, 504 (5th Cir. 1998)). Our
review instead is for whether the plaintiff met his ultimate burden
of proving that the employer terminated him because of age. Id.
Thus, this Court in Palasota considered the anti-age remarks made,
in combination with the establishment of a prima facie case and a
fact issue as to the veracity of the employer’s stated grounds for
termination, as probative of discriminatory intent. Id. at 578.
Moreover, there the jury had ruled for Palasota based on his theory
of the case – “that Haggar sought to replace its largely older,
male sales force with a younger female sales force.” Id. at 575.
Here, as explained in section I, Appellants waived objection to the
similarly situated theory of the case advanced by Majesco and
accepted by the district court. Appellants thus failed to properly
advance any theory of the case based on Majesco’s alleged plan to
have an all-Indian workforce.
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that as a matter of law, the district court was correct to grant
summary judgment in this case because nothing supported the
allegation that Indian employees were treated more favorably than
Keelan and because in essence Keelan’s argument is a challenge to
Majesco’s business model, not to any discriminatory treatment.
Based on our review of the summary judgment evidence, and
keeping in mind that Keelan was constrained to produce evidence
sufficient to raise a genuine fact dispute that similarly situated
Indian salespersons were treated more favorably than he because
Appellants did not properly object to this formulation below, we
find that Keelan has failed to meet the discrimination prong of his
prima facie case under the particular disparate treatment
formulation of the fourth element of McDonnell Douglas employed by
the district court. Considering the evidence in the light most
favorable to Keelan, we do not find that Keelan presented any
summary judgment evidence tending to show, or from which it can be
inferred, that similarly situated Indian salespersons were treated
more favorably.
“To establish a prima facie case in this manner, [Keelan] must
show that [Indian] employees were treated differently under
circumstances ‘nearly identical’ to his.” Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (citations
omitted). First of all, nowhere in the record does Keelan identify
by name any Indian salesperson in “nearly identical” circumstances
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who received better treatment than he. Keelan instead insists
there were no Majesco Indian employees similarly situated to him.
However, the record reflects that both Indian and non-Indian
salespersons were affected by the blanket pay and commission cuts.
The record also specifically identifies two Indian salespersons who
were discharged in January 2002 for the identical reason Majesco
gave for Keelan’s termination – nonproduction in sales. See id.
(affirming summary judgment for employer where black plaintiff did
not meet prima facie case on discrimination prong, noting that
white employees had also been similarly disciplined for “scrapping
parts”). Also, nothing in the record indicates that Indian
salespersons, as opposed to non-Indian salespersons, did not
encounter the same types of staffing and marketing issues
complained of by Appellants.
Moreover, Appellants’ statistical evidence indicating the
majority Indian workforce at Majesco and the remarks pertaining to
pro-Indian sentiment neither show nor can be reasonably inferred to
show better actual treatment of Majesco’s Indian salespersons in
circumstances “nearly identical” to Keelan’s. See id. Thus, the
district court correctly found that Keelan had not met the
discrimination element of the prima facie showing under McDonnell
Douglas.
And even if this evidence could arguably be considered enough
to support a prima facie case, “if the defendant has offered a
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legitimate nondiscriminatory reason for its action, the presumption
of discrimination derived from the plaintiff's prima facie case
simply drops out of the picture and the ultimate question [is]
discrimination vel non.” Mayberry v. Vought Aircraft Co., 55 F.3d
1086, 1090 (5th Cir. 1995) (alteration in original) (internal
quotation marks and citations omitted). Here, Majesco met its
burden of production by citing Keelan’s poor sales performance; any
presumption of discrimination vanishes. The record reflects that
Keelan indeed made few sales; Keelan created no fact issue that
Majesco’s stated grounds for his termination were “unworthy of
credence.” See Reeves, 530 U.S. at 143; Palasota, 342 F.3d at
578.
Keelan’s statistical evidence and pro-Indian remarks do not
create a fact issue on pretext. Being a majority Indian company
did not prevent Majesco from also firing Indians for nonperformance
in sales. See Nieto v. L&H Packing Co., 108 F.3d 621, 623 n.5 (5th
Cir. 1997) (noting how evidence of more favorable treatment of
similarly situated employees outside the class can be “especially
relevant” to a showing of pretext). Also, Keelan does not allege
and presents no evidence here that the Majesco personnel who made
the remarks were involved in or influenced the decision to fire him
or that those remarks were made in connection with his discharge.
See Rachid v. Jack In The Box, 376 F.3d 305, 315-16 (5th Cir. 2004)
(noting ageist comments continually made by person who decided to
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fire plaintiff); Scales v. Slater, 181 F.3d 703, 712 (5th Cir.
1999) (discounting stray remarks not connected to an employment
decision).
CONCLUSION
Having carefully reviewed the record and the parties’
respective briefing and arguments, and for the reasons set forth
above, we conclude the district court was correct to grant
Majesco’s motion for summary judgment and dismiss Appellants’
claims. Therefore, we AFFIRM.
AFFIRMED.
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