Opinion
Civil Action No. 3:02-CV-1946-L.
September 30, 2004
ORDER
Before the court is Defendant Ask Jeeves, Inc.'s Motion for Summary Judgment, filed October 6, 2003. After careful consideration of the motion, response, reply, competent summary judgment evidence, record and applicable law, the court denies Defendant's Motion for Summary Judgment.
I. Factual and Procedural Background
Plaintiff Alicia Good ("Good" or "Plaintiff') filed this action on September 9, 2002, against Ask Jeeves, Inc. ("Ask Jeeves" or "Defendant") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"); and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) ("ADEA"). She contends that Ask Jeeves discriminated against her on account of her gender in violation of Title VII; and her age in violation of the ADEA. She also contends that Ask Jeeves violated Tex. Labor Code § 52.051(a) by penalizing her for complying with a valid subpoena.
Ask Jeeves contends that Good was not discriminated against because of her gender or age, and that it did not penalize her for complying with a valid subpoena. Ask Jeeves maintains that it terminated Good for a legitimate, nondiscriminatory reason as part of a reduction-in-force ("RIF").
Ask Jeeves has filed a motion for summary judgment and contends that no genuine issue of material fact exists with respect to any of Good's asserted claims, and that it is therefore entitled to judgment as a matter of law. Good, on the other hand, contends that she has set forth facts which preclude the granting of summary judgment in favor of Ask Jeeves, and requests the court to deny the summary judgment motion and allow the case to proceed to trial. The court now sets forth the facts on which it relies to resolve the summary judgment motion. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section.
Good was employed by Ask Jeeves as a Director of Sales ("DOS") from March 31, 2000, until December 19, 2000. Her salary base was $75,000 with an on target compensation of $195,000. She was also entitled to health benefits and stock options. Good was assigned to the high technology vertical sales force and reported directly to Regional Vice President Lee Martinez ("Martinez"). As a DOS, Good was responsible for selling Ask Jeeves's software and support services. Good did not supervise any employees. She was an at-will employee.
Prior to joining Ask Jeeves, Good worked as a sales representative for software products for Oracle Corporation from 1995 to 1996. Thereafter, she worked as a pre-sales consultant for Vantive, a corporation that sold customer relationship management applications. In 1999, Good joined Webridge as a direct sales representative. Webridge sold web applications for partner relationship management as well as collaborative applications.
Ask Jeeves's Commission Target Plan for a DOS stated:
Target Commissions
Quarterly Quota
Annual quota is 8 deals and $3,000,000 in booking value. Base commission is 4%. Target commissions are $120,000 per year ($3,000,000 × .04).
Quarterly quota is two deals and $750,000 in booking value. A deal is defined as a signed contract for business with a new client. Follow-on deals with existing clients will be recognized as deals as long as they are $50,000 or greater in booking value. Booking value is defined as revenue that will be recognized by the Ask Jeeves through the term of the agreement and includes both new and existing business.
Def. App. at 99. (emphasis in original.)
Within a few weeks of Good's hire date, Ask Jeeves restructured, and switched from a vertical sales force, to a geographical sales force. Good became a DOS for the central region. Good's geographical region was primarily North Texas. As part of the reorganization in June 2000, Martinez was demoted from regional vice president to a DOS reporting to Rick Minicozzi ("Minicozzi"), the new Central Region Manager. Good also reported to Minicozzi. Minicozzi reported to Landon Lack ("Lack"), Vice President of Sales for the Western Region. Lack reported to Frank Vaculin ("Vaculin"), Executive Vice President of Sales.
Minicozzi was promoted to Vice President of Sales for the Central Region in November 2000. In addition to Good and Martinez, Minicozzi directly supervised Jonathan Schimmels ("Schimmels"), Cary Tucker ("Tucker") and subsequently Beth Dudgeon ("Dudgeon"). Ask Jeeves hired Schimmels on February 17, 2000, and he was responsible for the State of Colorado. Ask Jeeves hired Tucker on March 20, 2000, and his territory included Austin, Texas. Ask Jeeves hired Dudgeon on July 6, 2000, and she was responsible for the State of Minnesota. Dudgeon was the only employee supervised by Minicozzi with less tenure than Good. Good, who was 41 years old when terminated, was the oldest DOS under Minicozzi's direct supervision.
On July 26, 2000, Minicozzi sent Good an e-mail expressing concern that her pipeline (business opportunities and prospects) had decreased from five opportunities to three. He also reminded her of some administrative responsibilities that included a standing appointment of a Monday morning telephone call and timely submission of expense reports. On August 1, 2000, Minicozzi sent Good an e-mail expressing his disappointment for her failure to submit a 90/90 administrative report and advised her to have all of her administrative requirements to him on time in the future. He pointed out that this was the third time they had discussed such issues. Good responded by e-mail that she thought the report in question was due on the first day of the month and not the close of business the last day of the month. Pl. App. at 219. Good asked for clarification of this issue and assured Minicozzi that she would comply with the reporting requirements. Id.
Minicozzi pointed out that one of the remaining business opportunities was about to "fall out," and the remaining two were still in the qualification stage which they had been in since creation. Def. App. at 154. Minicozzi also noted that Good had not made contact with a lead he had provided her on July 12th. Id.
The 90/90 administrative report forecast the likelihood of business opportunities closing in the next ninety (90) days. Pl. App. at 43.
On August 31, 2000, Ask Jeeves terminated Martinez for poor job performance. On November 6, 2000, Ask Jeeves filed a lawsuit to enjoin Martinez from allegedly disclosing detailed confidential information of Ask Jeeves to outsiders. The court granted a temporary restraining order and set the preliminary injunction hearing for December 4, 2000. Martinez subpoenaed Good to appear at the hearing. Good sent Minicozzi an e-mail regarding the subpoena, and copied Lack and Sharon Anolik, Ask Jeeves's General Counsel. Good appeared at the hearing, but neither party called her to testify.
On December 8, 2000, Minicozzi told Good of his concerns with her performance. Specifically, he addressed her failure to obtain a price authorization before sending a quote to a customer and her failure to return his telephone calls. Minicozzi also asked Good if she was looking for another job. Believing that she had been terminated, Good informed a prospective customer that she had been terminated and gave him Minicozzi's contact information. After hearing from the contact, Minicozzi called Good and told her she was not terminated, and to stop telling clients or prospective clients that she was terminated. Later that day, Good sent Paul Bianchi ("Bianchi"), Ask Jeeves's Senior Vice President of Human Resources, a letter stating that Minicozzi had informed her earlier that day that he was recommending her termination. She further informed Bianchi that Minicozzi later called her and told her she was not terminated and had misunderstood their earlier conversation.
Minicozzi testified in his deposition that he asked this question because, based on his experience, this could explain Good's failure to return his telephone calls. Def. App. at 81B-81C.
Good testified in her deposition that she got the "impression" that she was terminated during the December 8th conversation with Minicozzi when he raised the issues of price authorization, failure to return telephone calls, and her looking for another job. Pl. App. at 56. When asked specifically if Minicozzi told her she was terminated, Good responded, "That is what I heard in that conversation, yes." Id. Good sent Paul Bianchi, Ask Jeeves's Senior Vice President of Human Resources, a letter that day stating that Minicozzi was "recommending her for termination." Pl. App. at 225. When questioned about this letter during her deposition, Good testified that Minicozzi told her "he was recommending to Landon Lack that I be terminated." Pl. App. at 65. Good admitted that she never heard that Lack approved her termination. Id.
In December 2000, Ask Jeeves decided to reduce its workforce by approximately twenty-five percent. In preparation for the layoff, Vaculin requested that Minicozzi and Lack rank their DOSs. Ranking was based on sales, new business opportunities, and overall performance. Minicozzi considered the revenue generated by the DOSs from their date of hire. Good had closed a $61,000 deal with a new customer. Tucker made a sale to an existing customer for $35,000. Dudgeon had no sales for that time frame. Schimmels had $1,353,000. Minicozzi also considered a November 17, 2000, revenue pipeline report that showed that Good had six potential sale opportunities with an anticipated revenue of $1,784,000. Dudgeon had nine leads in her pipeline with an anticipated revenue of $2,150,000. Tucker had 13 leads with an anticipated revenue of $2,325,000. Schimmels had 16 leads with an anticipated revenue of $3,650,000. The report indicated that most of the DOSs' leads were not well developed and that only two of Schimmels' leads were likely to yield business. Minicozzi ranked Good the lowest of the four DOSs who reported to him.
Although the initial lead for the deal was generated by another company acquired by Ask Jeeves, Good worked on and closed the deal. Def. App. at 32.
Ask Jeeves terminated Good effective December 15, 2004, as part of the reduction-in-force ("RIF"). According to Ask Jeeves's Employee Handbook, "[I]n determining which employees will be subject to layoff, the Company will take into account, among other things, operation and requirements, the skill, productivity, ability and past performance of those involved and also, where feasible, the employee's length of service." Def. App. at 161. Ask Jeeves retained Tucker (a male) and Dudgeon (a female), who were younger than Good.
Good filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 8, 2001. On June 13, 2002, Good received a right-to-sue letter from the EEOC. Good timely filed this lawsuit as a result of her right-to-sue letter. Ask Jeeves filed a motion for summary judgment. The court now considers this motion. II. Summary Judgment Standard
Summary judgment shall be rendered 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Applicable Standard of Proof
Plaintiff and Defendant disagree regarding the applicable standard of proof on plaintiff's discrimination claims. Plaintiff maintains that the court should apply the "mixed-motive" analysis found in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). A "mixed-motive" case is one in which the adverse employment decision is motivated by both permissible and forbidden reasons. Roberson v. Alltel Information Servs., 373 F.3d 647, 651 (5th Cir. 2004) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989)). Plaintiff contends that under Desert Palace, Ask Jeeves's summary judgment motion should be denied unless Ask Jeeves demonstrates that Good has failed to raise a genuine issue of material fact concerning whether her gender, age, or compliance with a subpoena motivated Ask Jeeves's decision to terminate her, even if Ask Jeeves was also motivated by lawful reasons. Pl. Brief at 30-32. Ask Jeeves, on the other hand, contends that this is a pretext case, and therefore the court should follow the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. Def. Reply at 4-5. A pretext case is one in which the employer's nondiscriminatory rationale for its actions is merely a pretext for impermissible discrimination. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). Both parties agree that under Desert Palace, regardless of whether Good relies on direct or circumstantial evidence, she bears the burden of proving, by a preponderance of the evidence, that Ask Jeeves discriminated against her because of her protected status. Def. Reply at 5; Pl. Response at 31-32.
Desert Palace makes clear that direct evidence of discrimination is not necessary to obtain a mixed-motive jury instruction under Title VII. 539 U.S. 90, 101.
In Rachid v. Jack In the Box, Inc., 376 F.3d 305 (5th Cir. 2004), the Fifth Circuit resolved this issue with an integrated approach called the modified McDonnell Douglas approach. Under this approach
[T]he plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff; and if the defendant meets its burden of production, the 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. at 313 (citations and internal quotation marks omitted). If a plaintiff establishes that age or gender was a motivating factor in the employment decision, the defendant must prove that the same adverse employment action would have been taken by it, regardless of discriminatory animus. If an employer fails to meet this burden, the plaintiff prevails. Id. at 312.
B. Age and Sex Discrimination
Good contends that Ask Jeeves unlawfully discriminated against her on the basis of age and gender when it terminated her and retained younger and less qualified male employees. Good brings her claim of age discrimination under the ADEA; and her gender discrimination claim under Title VII. Title VII and the ADEA prohibit an employer from discriminating against any individual, in hiring or discharge, or in the terms and conditions of employment, on the basis of sex or age. 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 623(a)(1). In a discriminatory discharge claim, the first three elements of a prima facie case for Title VII and ADEA claims are the same. Good must prove that she (1) belongs to the protected category, (2) was qualified for the position she held, and (3) was discharged. See Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995). In a RIF case, the fourth element she must prove to establish a Title VII prima facie case is that "after [the] discharge others who were not members of the protected class remained in similar positions." Id. (citing Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990)) (internal quotation marks omitted). The fourth element in a RIF case under the ADEA is that she was "otherwise discharged because of [her] age." Id. (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)). The court now analyzes Good's claims under the modified McDonnell Douglas approach detailed in Rachid.
1. Prima Facie Case
Ask Jeeves "assumes" that Good satisfies the requirements for a prima facie case. Def. Response at 11. Based on this assumption, the court really need not discuss whether Good has met her burden; however, the court independently determines that Good has established a prima facie case. Good, a 41 year-old female employee, was qualified for the position she held at the time she was terminated. Tucker a younger male employee, and Dudgeon, a younger female, were not discharged. Good clearly establishes the first three elements of her Title VII and ADEA prima facie cases. She establishes the fourth element of her Title VII claim because after Good's discharge, Tucker, not a member of the protected class, remained in a similar position. See Vaughn at 521. Likewise, the fourth element of Good's ADEA claim is established because Good was discharged, while other younger DOSs were not. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 645 (5th Cir. 1985).
2. Legitimate, Nondiscriminatory Reason
The court now considers whether Ask Jeeves has articulated a legitimate, nondiscriminatory reason for its decision to terminate Good. Ask Jeeves states that Good's termination resulted from a combination of economic necessity and her poor job performance. Both are legitimate, nondiscriminatory reasons for which an employer may discharge an employee. The court thus determines that Ask Jeeves has met its burden by articulating legitimate, nondiscriminatory reasons for Good's termination. The court now turns to the issue of pretext.
3. Pretext
The burden shifts back to Good to demonstrate that Ask Jeeves's articulated legitimate, nondiscriminatory reasons are pretextual. Good asserts that she has direct and circumstantial evidence of discrimination. As direct evidence of discrimination, Good recounts a conversation during a social hour at an August 2000 sales meeting. She was a party to a conversation that included Minicozzi, Tucker and another sales director, Greg Haywood. Haywood informed Good that he had been in the military. "[T]hen they started laughing about the fact that several of the people were either from West Point or had served in the military or the Navy and then they started talking about recruiting young men from the service who would do exactly what they're told as sales rep." Def. App. at 5. Ask Jeeves disagrees that this is evidence of discrimination and contends that the statement is taken out of context and is therefore not susceptible to the meaning Good ascribes to it. See Def. Reply at 8.
The Fifth Circuit has held that workplace comments may constitute sufficient evidence of discrimination if the remarks are (1) related to [the protected class of persons of which the Plaintiff is a member]; (2) proximate in time to the [complained-of adverse employment decision]; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Rubinstein v. Administrators of Tulane Educational Fund, 218 F.3d 392, 401 (5th Cir. 2000) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)). Contrary to Good's contentions, however, the remark does not meet this test. First, the comment appears to be a stray remark regarding possible recruitment from the military. Even assuming that the comment was related to age or gender, the court determines that Good fails to establish the second, third and fourth elements of the test. With respect to the second element, the conversation occurred in August 2000, not proximate in time to Good's termination in December. Regarding the third element, although Minicozzi was present during the conversation, the comment is not attributed to Minicozzi, Good's supervisor. With respect to the fourth element, the record is absent of any evidence that the comment about hiring young men from the military was in any way related to the decision to include Good in the RIF. Stray remarks with no connection to an employment decision cannot create a fact issue regarding discriminatory intent and are insufficient to defeat summary judgment. Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999). To make any reasonable connection between the statement at the party and Minicozzi's decision to rank Good the lowest among the DOSs would require this court to make a quantum leap of logic, which it is not prepared to make from the evidence presented.
The record is devoid of any evidence that Vaculin, the decisionmaker regarding Good's placement in the RIF, was present when the conversation occurred or even knew that the remark had been made.
The court now considers the circumstantial evidence Good believes is sufficient to defeat Ask Jeeves's summary judgment motion. Good believes that Ask Jeeves's stated reasons for her termination are pretextual. Ask Jeeves asserts that, prior to the RIF, Minicozzi and Lack ranked Good last relative to the other three DOSs under Minicozzi's supervision. They state that at the time of the ranking neither knew Ask Jeeves was preparing for a RIF. Def. App. at 80-81, 139. Vaculin included Good in the RIF based on the ranking. Def. App. at 143. Minicozzi maintains that the ranking was based on Good's failure to initiate sales, her low anticipated sales revenue and administrative issues which lasted throughout the period that she reported to him. Ask Jeeves acknowledges that Good had a $61,000 deal, but points out that someone else initiated the deal. Further, it claims that Good's pipeline showed the lowest anticipated revenue of the employees under Minicozzi's supervision. Other administrative issues included a missed telephone appointment, failure to return telephone calls, failure to timely submit expense and pipeline reports, and failure to adhere to company policy regarding proper price authorization.
Good argues that her sales record exceeded two other DOSs, and is evidence of discrimination. Specifically, Good's $61,000 deal exceeded Tucker's (a younger male) $35,000 sale. Dudgeon (a younger female) had not closed any business. Good's deal was to a new customer, making it more beneficial to Ask Jeeves than Tucker's smaller sale with a pre-existing customer. Pl. App. at 109; Def. App. at 99. Regarding anticipated revenue in their pipelines, Good has produced evidence that it was the DOSs' responsibility to manage their pipelines and report on business opportunities. Business opportunities and potential revenues listed in a DOS's pipeline report did not necessarily result in a valid opportunity. Although the other DOSs had higher revenues in their pipeline according to the pipeline reports of November 17, 2000, the only business that actually closed was one of Good's deals that was given to Tucker after she was terminated. Pl. App. at 93; Pl. Confidential App. at 44-56.
Minicozzi testified in deposition that a sales person's pipeline was not necessarily reflective of reality. Pl. App. at 91.
Good also disputes Ask Jeeves's assertions that her low ranking was for poor performance related to administrative issues. Good contends that she immediately addressed Minicozzi's administrative concerns that were raised in July, five months before her termination. Regarding the missed telephone appointment, Good explained that she was ill. Pl. App. at 35. With respect to the expense reports, she testified in her deposition that the arrangement for expense reports under Martinez (her former supervisor) was different from that of Minicozzi, and that she was unaware of his expectation, but from that point on she complied with Minicozzi's two-week deadline. Pl. App. at 44-45. Regarding Minicozzi's expressed concern on August 1, 2000, that Good failed to turn in her 90/90 administrative report that forecast the likelihood of business opportunities closing in the next ninety (90) days, Good responded by e-mail that Minicozzi had previously informed her that the report was due the first of the month, not the close of business on the last day of the prior month. Pl. App. at 219. Good informed Minicozzi that she was happy to comply with the change in reporting requirements. Id.
The court does not consider the administrative issues raised during the December 8, 2000, telephone conversation between Good and Minicozzi because the record is unclear whether this conversation occurred before or after the DOSs' ranking that led to Good's termination. Ask Jeeves states in its brief that the ranking of the DOSs occurred in November or December 2000. Def. Brief at 6.
The court determines that Good has presented sufficient evidence to create a genuine issue of material fact regarding Ask Jeeves's stated reason for her discharge. Vaculin, the decisionmaker, relied on Minicozzi's ranking to decide whom to terminate. Pl. App. at 111. According to Vaculin, the ranking was to be based on objective information such as sales and potential sales revenues. Pl. App. at 111-12. Vaculin selected Good for RIF because Minicozzi ranked her the lowest of the DOSs who reported to him. The record suggests that Vaculin's stated objective criteria for the ranking was not followed, since Good's sales performance exceeded both Tucker's (a younger male) and Dudgeon's (a younger female). Further, the DOSs pipeline report of anticipated sales revenue, that was also considered in determining ranking, was a subjective forecast by the DOSs and not indicative of an actual sale. Good has also presented evidence to support her position that her administrative shortcomings do not support her lower ranking.
Vaculin, the decisionmaker, had no direct contact with Good; however, if an employee can demonstrate that another individual had influence or leverage over the official decisionmaker, it is proper to impute that individual's discriminatory animus to the formal decisionmaker. Russell v. McKinney Hospital Venture, 235 F.3d 219, 226 (5th Cir. 2000). As Minicozzi ranked Good and the other DOSs, and submitted the ranking to Vaculin, he necessarily had some influence and leverage with Vaculin, because Vaculin relied on Minicozzi's ranking to determine whom to place on the RIF list. Clearly, Minicozzi was a management supervisor, not an ordinary co-worker, and a reasonable jury could believe that Vaculin, the official decisionmaker, merely "rubber stamped" Minicozzi's decision. See id. A "plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer's discriminatory animus or the falsity of the employer's legitimate nondiscriminatory explanation." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated," and may therefore be enough to prevent summary judgment. See Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. at 148 (2000); Sandstad, 309 F.3d at 897. In this case, the court has determined that a prima facie case exists. Whether Ask Jeeves's articulated reason is false turns on the credibility of witnesses, which necessarily raises a genuine issue of material fact. Accordingly, Ask Jeeves is not entitled to summary judgment on Good's sex and age discrimination claims.
C. Retaliation for Subpoena Compliance
Good contends that she was also terminated, in violation of the Texas Labor Code, for complying with a subpoena to appear at a hearing involving terminated employee Lee Martinez. The Code provides that "An employer may not discharge, discipline, or penalize in any manner an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative, or administrative proceeding." Tex. Labor Code § 52.051(a) (Vernon 1996.)
Ask Jeeves argues that Good cannot produce sufficient evidence to show that she was penalized for complying with a subpoena, and thus, summary judgment should be granted on this cause of action. According to Ask Jeeves, Good was terminated based on Minicozzi's ranking of her performance. Good counters that Ask Jeeves would not have selected her for the RIF had she not complied with the subpoena. To support her claim Good offers the following: (1) Minicozzi questioned her loyalty to Ask Jeeves; (2) Minicozzi asked Lack if he could terminate her after she complied with the subpoena; and (3) Lack testified that he would not fight to save her during the RIF.
The court is underwhelmed by the parties' briefing on this issue. The problem is compounded because the statute is poorly written. As written, the statute virtually appears to be one of strict liability. There is no requirement that the person actually testify, much less give testimony contrary to the employer's interest. The court finds no case that has interpreted or applied this statute, and the parties cited none. Plaintiff, however, cites to Texas Dep't of Human Servs. v. Hinds, 904 S.W.2d 629 (Tex. 1995) (a whistleblower case) as setting the standard for causation in a case such as this. In Hinds the Texas Supreme Court determined that the proper standard of causation applicable in cases brought under the Texas Whistleblower Act is "that employee's conduct must be such that, without it, employer's prohibited conduct would not have occurred when it did." Id. at 636. See also City of Fort Worth v. DeOreo, 114 S.W.3d 664 (Tex.App.-Fort Worth 2003, no pet.). In a whistleblower case, the employee need not establish that the reported violation of the law was the sole cause of the employer's action. City of Fort Worth v. Johnson, 105 S.W.3d 154 (Tex.App.-Waco 2003, no pet.).
The Texas Whistleblower Act provides that a state agency or local government may not suspend or terminate or otherwise discriminate against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority. Tex. Gov't Code § 554.002 (Vernon Supp. 2004).
Using this standard, the court now considers Good's contention that Ask Jeeves would not have selected her for the RIF when it did, had she not complied with the December 4 subpoena. Good asserts in her affidavit that during a telephone conversation on December 8, she and Minicozzi discussed the subpoena and he stated that she had volunteered to testify against Ask Jeeves. Pl. App at 3-4. The court concludes that the close proximity between Good's discharge and her compliance with the subpoena creates a presumption that she was penalized for complying with the subpoena. By way of comparison, the Texas Whistleblower Act provides
[I]f the suspension or termination of, or adverse personnel action against, a public employee occurs not later than the 90th day after the date on which the employee reports a violation of law, the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report.
Tex. Gov't Code § 554.004(a) (Vernon Supp. 2004). In this case the proximity is much less than 90 days — only 11 days.
The record is unclear as to when the DOSs's ranking list was created. Ask Jeeves states in its brief that Vaculin asked Minicozzi to rank his sales force in November or December, 2000. Def. Brief at 6. Plaintiff received the subpoena on December 1st. Def. App. at 59. The hearing was set for December 4th. Good informed Minicozzi of the subpoena on December 4th. Pl. App. at 224. During a telephone conversation on December 8th, Minicozzi asked Good if she was looking for another job. In a subsequent conversation that same day, Minicozzi told Good that he believed that she had voluntarily agreed to appear on Martinez's behalf. Pl. App. at 67. In his affidavit Lack states that Minicozzi informed him of his problems with Good on December 8th. Def. App. at 139. Lack also states that he learned of the RIF on December 11th. Id. He also testified in his deposition that the ranking was done either on December 8th or December 11th. Pl. App. at 135. Minicozzi testified that the ranking was done two or three weeks before the RIF. Def. App. at 81. Viewing all inferences drawn from the factual record in the light most favorable to Good, the court concludes that there is a genuine issue of material fact regarding a causal connection between Good's subpoena compliance and her termination. A reasonable jury could believe that the requisite causal connection is present. In any event, this is too close a call for the court, and a jury must decide the issue. Accordingly, Ask Jeeves is not entitled to summary judgment on this claim.
IV. Conclusion
For the above stated reasons, genuine issues of material fact exist with respect to Good's sex and gender discrimination claims, and her claim that she was terminated for complying with a valid subpoena. Accordingly, the court denies Defendant's Motion for Summary Judgment.