Opinion
Civil Action No. 3: 03-CV-0770-B.
November 10, 2004
MEMORANDUM ORDER
Before the Court is Defendant Bank of America Technology and Operations, Inc.'s Motion for Summary Judgment ("Motion"). Finding that Plaintiff has not created a genuine issue of material fact regarding any of her claims in this suit, the Court GRANTS Bank of America's Motion in its entirety, for the reasons that follow.
I. BACKGROUND FACTS
Unless otherwise noted, the background facts are undisputed by the parties and are taken from the summary judgment briefs and appendices. ("Def.'s Brief," "Pl.'s Brief," "Def. App.," and "Pl. App.")
This case arises out of the employment and subsequent termination of Plaintiff Kelly Boyce ("Boyce") by Defendant Bank of America Technology and Operations, Inc. ("Bank of America" or the "Bank"). Boyce, a Caucasian female, was hired by Bank of America in 1992. She worked there for six years, until she voluntarily left in August 1998. According to Boyce, she was subsequently approached by Edward Spencer ("Spencer") from the Bank and induced to return to employment at the Bank. (Boyce Dep. p. 36:12-23/ Pl. App. p. 13) Boyce says that Spencer promised she would be credited with her prior six (6) years of service at the Bank for benefits purposes. (Boyce Dep. pp. 36:24-37:19/ Pl. App. pp. 13-14) None of the conversations were memorialized in writing. (Boyce Dep. pp. 38:15-39:3/ Pl. App. p. 14) Boyce then received and signed an offer letter from Bank of America, accepting a Help Desk analyst position. (Def. App. pp. 338-39) The letter did not mention crediting Boyce with her prior six years of service. ( Id.) Boyce returned to the Bank in September 1999.
In 2000, Boyce was promoted to Team Lead for the Application Support Group Help Desk ("ASG Help Desk") and received the title of Assistant Vice President around the same time. Beginning in late 2001, Boyce served as the interim manager of the ASG Help Desk, supervising approximately eight (8) employees. (Boyce Dep. p. 49:18-20/Def. App. p. 33; 50:12-20/ Def. App. p. 34) Audrey Suber ("Suber"), an African-American female, had managed the Bank's Asset Management Group Help Desk ("AMG Help Desk") since January 2000, supervising approximately thirty (30) employees. (Suber Aff. ¶ 6/Def. App. p. 387) Angel Chance ("Chance"), a Caucasian female, was a Team Lead for the AMG Help Desk. (Boyce Dep. p. 80:2-10/Def. App. p. 52; Chance Aff. ¶ 3/ Def. App. p. 390)
In 2001, Anne Dallegro ("Dallegro"), a Caucasian female, was the manager of all of the Bank's Differentiated Services Support ("DSS") Help Desks. Dallegro's supervisor was Scott Cox ("Cox"). In late 2001, Bank of America decided to consolidate the ASG and AMG Help Desks in Dallas. Cox determined there should be only one DSS Manager in Dallas. (Cox Aff. ¶ 4/ Def. App. p. 373) Cox and Dallegro then considered Boyce and Suber for the position. After reviewing their qualifications and interviewing employees with whom Boyce and Suber had worked, Dallegro and Cox chose Suber to fill the DSS Manager position. (Cox Aff. ¶ 8/ Def. App. p. 374; Dallegro Aff. ¶ 12/ Def. App. p. 379) Boyce and Chance remained as Team Leads in the Dallas office.
In an attempt to foster a team relationship, Suber then asked Dallegro if she could take Boyce and Chance to lunch. (Dallegro Aff. ¶ 15/ Def. App. pp. 379-80; Suber Aff. ¶ 9/ Def. App. p. 388) Dallegro approved the lunch, and the three ate at a restaurant called Dakota's. ( Id.) Suber asked Chance to pay for the lunch with Chance's corporate card. Boyce believed this violated Bank policy, but made no comment. (Boyce Dep. pp. 112:25-113:4/ Def. App. pp. 72-73) Several days later, Boyce asked Dallegro if she needed to reimburse the Bank for the lunch, but Dallegro said the lunch was not a violation of Bank policy. (Boyce Dep. p. 112:7-12/ Def. App. p. 72)
In 2002, Dallegro counseled Boyce about not supporting the merger and Suber's management. (Boyce Dep. p. 157:11-13/ Def. App. p. 106; Dallegro Aff. ¶ 17/ Def. App. pp. 380-81)
On April 8, 2002, Boyce sent out a memo regarding Help Desk procedures. According to the Bank, the memo was sent without appropriate management approval and contained inaccurate information that caused confusion within Bank of America. (Dallegro Aff. ¶ 18/ Def. App. p. 381; Pl. App. p. 255) Boyce received a written warning based on this incident. (Pl. App. p. 255)
In April 2002, Boyce contacted the Bank's Personnel Center to complain about Suber. (Boyce Dep. p. 133:12-24/ Def. App. p. 90) Personnel Representative Yolanda Vera ("Vera") met with Boyce in Dallas. (Boyce Dep. p. 135:11-13/ Def. App. p. 92) To keep the proceedings confidential, the two met in an area outside Boyce's immediate work area. Vera concluded that Boyce and Suber had different management styles, and Boyce agreed to let "bygones be bygones." (Boyce Dep. p. 126:2-10/ Def. App. p. 83)
After meeting with Vera, Boyce and her husband visited the home of Lori Elmore ("Elmore"), a fellow Bank employee. It is disputed who initiated these visits and what was said during the visits; however, Elmore reported the visits to Suber and said she was uncomfortable with them. (Elmore Dep. p. 315:12-15/ Def. App. p. 315) Boyce was given another written warning from Dallegro for making the visits to Elmore's home, for speaking negatively to associates about Suber, and for exhibiting a failure of trust in Suber. (Pl. App. p. 256)
The Help Desk employees were responsible for answering technical questions that came in through Bank of America's help desk lines. In the summer of 2002, Suber instructed Boyce and Chance to record the business calls, complete evaluation forms, and meet with the associates to go over their performance. (Boyce Dep. pp. 121:25-122:11/ Def. App. pp. 78-79; 129:18-130:9/ Def. App. pp. 86-87; Suber Dep. p. 26:15-23/ Def. App. p. 204; 32:4-9/ Def. App. p. 205; 41:12-15/ Def. App. p. 210) The recordings lasted for approximately two weeks. (Chance Aff. ¶ 5/ Def. App. p. 391) During this time, Boyce did record several calls. (Chance Aff. ¶ 5/ Def. App. p. 391) At some point, Boyce asked her husband to check with an attorney regarding the legality of the recordings. (Boyce Dep. p. 123:10-20/ Pl. App. p. 35) Boyce's husband reported that the attorney stated the recordings were in violation of the law. (Boyce Dep. p. 190:2-17/ Pl. App. p. 52) Boyce asserts she stopped recording calls at that time, but did not tell anyone in management of her decision. (Boyce Dep. pp. 155:4-6/ Pl. App. p. 36; 128:8-11/ Def. App. p. 85) Suber, Dallegro, and Chance all deny ever being made aware of Boyce's concerns regarding the recordings prior to Boyce's termination. (Chance Aff. ¶ 7/ Def. App. p. 392; Dallegro Aff. ¶ 23/ Def. App. p. 382; Suber Aff. ¶ 12/ Def. App. p. 389)
In 2002, Dallas was the Bank's only DSS Help Desk with two Team Leads, which created some overlap in responsibilities between Suber, Boyce, and Chance. (Boyce Dep. pp. 76:18-77:1/ Def. App. pp. 48-49; 78:25-79:3/ Def. App. pp. 50-51; Dallegro Aff. ¶ 20/ Def. App. pp. 381-82) According to Dallegro, she decided to eliminate one Team Lead position in order to improve efficiency and make the Dallas Help Desk consistent with other Bank of America help desks. (Dallegro Aff. ¶ 20/ Def. App. pp. 381-82) Dallegro also asserts that she chose to eliminate Boyce's position because Boyce had two prior written warnings and had been counseled by Dallegro, while Chance, the other Team Lead, had no written warnings or counselings. (Dallegro Aff. ¶ 21/ Def. App. p. 382)
On the same day Boyce was laid-off, she retained an attorney and requested that all communications be directed through her attorney. (Boyce Dep. p. 193:16-19/ Def. App. p. 132) Boyce sent the Bank a list of her personal items, which the Bank boxed up and sent to her. (Boyce Dep. p. 188:16-22/ Def. App. p. 128) There were a few items the Bank said it could not locate, so it offered Boyce, through her attorneys, the opportunity to return to the Bank after business hours to find them. (Stobbe Aff. Ex. B/ Def. App. p. 429) Boyce claims never to have received the offer from her attorneys, and, thus, did not take advantage of it. (Boyce Dep. pp. 193:21-194:14/ Def. App. pp. 132-33)
II. PROCEDURAL HISTORY
Boyce filed suit against Bank of America on March 24, 2003 in Texas state court, alleging race discrimination and retaliation in violation of the Texas Commission on Human Resources Act ("TCHRA"), claims under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1983), breach of contract, conversion, and intentional infliction of emotional distress. The Bank removed the case to this Court on April 15, 2003. Boyce subsequently amended her complaint to allege race discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e et seq. (2003 Supp. 2004) instead of the TCHRA. The Bank filed a Motion for Summary Judgment on July 1, 2004. The parties have briefed their arguments, and the Court now turns to the merits of the Motion.
III. EVIDENTIARY OBJECTIONS
As an initial matter, the Court addresses Bank of America's objections to Boyce's summary judgment evidence.
Bank of America objects to Paragraph 6 of Boyce's affidavit where she states "It is clear that race was the motivating and determining factor in the decision to promote Suber to Manager of Differentiated Services Support Dallas and to `pass over' me." The Bank argues the statement is conclusory and based on conjecture. The Court sustains the objection and will not consider the statement as evidence of discrimination. See Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (holding that unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence).
Bank of America objects to Paragraphs 8 and 10 of Boyce's affidavit where she refers to expenses that had been falsified. The Bank claims that the statements are conclusory and/or based on conjecture. The Court sustains the Bank's objections because the statements are conclusory and unsupported by the evidence. See id.
Bank of America objects to Paragraphs 11 and 13 of Boyce's affidavit where she characterizes the telephone recordings as illegal. The Bank asserts that the statements are conclusory. The Court agrees and sustains the Bank's objections. See id.
Bank of America objects to Paragraph 15 of Boyce's affidavit where she refers to her termination as an illegal undertaking, arguing that the statement is conclusory. The Court sustains the Bank's objection and will not consider the statement as evidence that Boyce's termination was, in fact, illegal. Bank of America also objects to Paragraph 15 of Boyce's affidavit where she states she was escorted from the building "in such a manner as to . . . inflict emotional distress upon me" and was "intentionally and maliciously denied access to my personal property and papers. . . ." The Bank asserts that the statements are conclusory and based on conjecture. The Court sustains the Bank's objections. See id.
Bank of America's remaining objections to Paragraphs 6, 8, 9, and 11 of Boyce's affidavit and the Bank's objections to Wilson's affidavit are overruled for purposes of summary judgment.
IV. ANALYSIS
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Provident Life Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. See Chaplin v. NationsCredit Corp., 307 F.3d 368, 371-72 (5th Cir. 2002). The Court will now address the arguments of the parties.
A. Race Discrimination under Title VII
Boyce claims Bank of America discriminated against her on the basis of race in violation of Title VII by (1) failing to promote her to the position of DSS Manager in Dallas and (2) discharging her from her position at the Bank. (Pl. First Am. Compl. ¶ 5.10) Under the three-step McDonnell Douglas test that governs discrimination claims, Boyce must first put on evidence of a prima facie case of race discrimination. Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. 2003). The burden of production then shifts to Bank of America to articulate a legitimate, non-discriminatory reason for its actions. Id. The third step of the McDonnell Douglas test has arguably been altered by the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (holding that the mixed-motive theory of discrimination is available in cases with circumstantial evidence of discrimination). Addressing the Desert Palace decision, the Fifth Circuit has modified the third step of the McDonnell Douglas test. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). In order to survive summary judgment under the modified McDonnell Douglas test, Boyce must now produce evidence raising a fact question that (1) Bank of America's reason is not true, but is instead a pretext for discrimination or (2) that Bank of America's reason, while true, is only one of the reasons for its conduct and that race discrimination was a motivating factor. Id.
Boyce's contention that Rachid and Desert Palace stand for the proposition that the case must still go to a jury even if the Bank has a legitimate, non-discriminatory reason is misplaced. (Pl.'s Brief p. 19-20). Even under a mixed motive theory, Boyce must still produce some evidence, direct or circumstantial, of a discriminatory motivating factor in order to avoid summary judgment. Rachid, 376 F.3d at 312.
1. Failure to Promote
Boyce first claims that the Bank's decision to place Suber in the position of DSS Manager instead of Boyce was motivated by race discrimination. The Bank moved for summary judgment on the ground that it produced evidence of a legitimate, non-discriminatory reason for its decision and Boyce is unable to raise a fact issue regarding pretext or motivating factor. Initially, the Court notes that Boyce has demonstrated, and the Bank has not disputed, a prima facie case of discrimination with respect to the Bank's promotion decision. The Bank has produced evidence of a legitimate, non-discriminatory reason for its actions, namely that Cox and Dallegro believed Suber was more qualified for the position and had more positive feedback from managers. (Cox Aff. ¶ 8/ Def. App. p. 374; Dallegro Aff. ¶ 12/ Def. App. p. 379) Specifically, the Bank presented evidence that Suber had a Bachelor's and Master's Degree in Computer Science, while Boyce did not have an advanced degree. (Boyce Dep. p. 16:8-13/ Def. App. p. 9; Suber Aff. ¶ 2/ Def. App. p. 386) Suber held the title of Vice President with the Bank for a longer period of time than Boyce had held the lower title of Assistant Vice President. (Boyce Dep. p. 47:15-19/ Def. App. p. 31; Suber Aff. ¶ 4/ Def. App. p. 387; Suber Dep. p. 4:20-21/ Def. App. p. 193) Suber had past management experience and had managed more individuals (30) than Boyce (fewer than 10). (Boyce Dep. p. 50:12-20/ Def. App. p. 34; Suber Aff. ¶ 6/ Def. App. 387) Suber also received more positive feedback from the managers who worked with Suber and Boyce. (Cox. Aff. ¶¶ 6-8/ Def. App. pp. 373-74; Dallegro Aff. ¶¶ 8-10/ Def. App. p. 378) Based on their evaluation of each candidate, Cox and Dallegro believed Suber was better qualified for the position of DSS Manager.
As pertains to a failure to promote allegation, Boyce's prima facie case consists of evidence that (1) Boyce was a member of a protected class; (2) Boyce sought and was qualified for the position of DSS Manager in Dallas; (3)Boyce was not selected for that position; and (4) the position was filled by someone outside the protected class. See Rutherford v. Harris County, 197 F.3d 173, 179 (5th Cir. 1999).
Choosing the most qualified candidate constitutes a legitimate, non-discriminatory reason for a promotion decision. Manning, 332 F.3d at 881-82; Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999) (holding that basing a promotion decision on qualifications will almost always qualify as a legitimate, non-discriminatory reason). Because Bank of America articulated a legitimate, nondiscriminatory reason for its decision, Boyce must now produce evidence that either (1) raises a fact issue regarding the veracity of the Bank's reason or (2) raises a fact issue that, regardless of the Bank's stated reason, race was still a motivating factor in the Bank's decision. Rachid, 376 F.3d at 312.
In support of her argument, Boyce claims that she was better qualified for the position of DSS Manager than Suber. (Pl.'s Brief pp. 9-10) Courts are reluctant to substitute their views regarding employee qualifications for the views of those individuals who are charged with that duty by virtue of experience and expertise in the field. Deines v. Tex. Dep't of Protective Regulatory Servs., 164 F.3d 277, 280 (5th Cir. 1999). Therefore, Boyce must produce evidence creating a fact issue of whether she was "clearly better qualified" for the position of DSS Manager, which means Boyce must produce evidence suggesting that the disparities in qualifications between herself and Suber were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen Suber over Boyce. Id. at 280-81; see also Manning, 332 F.3d at 882 n. 4 (holding the "clearly better qualified" standard applies post- Reeves); Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (holding the losing candidate's qualifications must "leap from the record and cry out to all who would listen that [s]he was vastly — or even clearly — more qualified").
As noted above, the undisputed evidence shows that Suber had more education, a higher position within the Bank, more managerial experience, and better managerial feedback than Boyce. Boyce, however, rests her argument on the annual evaluations conducted by the Bank. (Pl.'s Brief pp. 9-10) According to Boyce, her 2002 evaluation, in which she received four "excellents," two "solids," and an overall rating of "excellent," was better than Suber's 2003 evaluation, in which she received one "excellent," five "solids," and an overall rating of "solid." (Pl. App. pp. 243-47, 251-54) Boyce, however, fails to explain exactly how, in 2002, Cox and Dallegro were to rely on Suber's 2003 evaluation, still one year away from being written. The law does not require an employer to predict the future, and neither will this Court. Boyce also references Suber's 1998 evaluation in which Suber received a "met expectations;" however, Boyce does not provide her own evaluation from that time period with which the Court could compare the performance of each individual. (Pl. App. pp. 263-65)
Boyce's 2002 evaluation covered the period from January 1, 2001, to December 31, 2001. (Pl. App. pp. 251-54).
Suber's 2003 evaluation covered the period from April 1, 2002, to February 1, 2003. (Pl. App. pp. 243-47).
Given the entirety of the parties' evidence (education, experience, managerial feedback, and evaluations) viewed in the light most favorable to Boyce, the most that can be determined is that Suber and Boyce were similarly qualified. See, e.g., Price, 283 F.3d at 723 (finding that candidate with better education, work experience, and longer tenure was still not "clearly better qualified"). A showing of similar qualifications, however, is insufficient to establish pretext or a discriminatory motivating factor; thus, Boyce's evidence does not create a genuine issue of material fact regarding discrimination. See id.
Boyce's second argument regarding her failure to promote claim is that at some unspecified time, Suber made the comment that she would never work for "that white woman," allegedly referring to Boyce. (Wilson Aff. ¶ 2/ Pl. App. p. 278; Pl.'s Brief p. 10) Boyce asserts that this remark is evidence that Cox and Dallegro chose Suber over Boyce because of race discrimination. While the Fifth Circuit has relaxed its standard regarding stray remarks, the standard is not so low that this remark qualifies as evidence of pretext. See Palasota v. Haggar Clothing Co., 342 F.3d 569, 577-78 (5th Cir. 2003) (holding that as long as the remarks are not the only evidence of pretext, they are probative of discriminatory intent). Here, there is no evidence of when and under what circumstances the remark was made. There is no evidence that the remark was heard by Cox or Dallegro, the decision-makers. There is no evidence that the remark was made by someone with influence over the decision making process. Indeed, the remark came from Suber, a candidate for the position of DSS Manager, who presumably, did not make the decision as to who received the position. See Palasota, 342 F.3d at 578 (holding remark must be made by an individual "in a position to influence the decision"). The alleged remark by Suber has no demonstrable connection with Cox and Dallegro's decision to place Suber in the DSS Manager position. Thus, because Boyce has not produced evidence creating a fact issue regarding pretext or a discriminatory motivating factor, the Court GRANTS Bank of America's Motion on Boyce's Title VII cause of action for race discrimination as it relates to her failure to promote claim.
It is unclear whether Suber was referring to Boyce when she made the remark; however, for purposes of summary judgment, the Court will assume "that white woman" is Boyce.
2. Termination
Boyce next contends that her termination from Bank of America in 2002 was prompted by race discrimination. For purposes of this summary judgment analysis, the Court will assume the existence of a prima facie case, so the Court turns to Bank of America's stated reason for its decision. According to the Bank, Dallegro decided to eliminate one of Dallas' two Team Lead positions. (Dallegro Aff. ¶ 20/ Def. App. pp. 381-82) Dallegro based this decision on a desire to improve efficiency and make the Dallas Help Desk more consistent with other Bank of America Help Desks that had one or no Team Leads. ( Id.) Dallegro then chose to eliminate Boyce's position, because Boyce had two prior written warnings and had been counseled by Dallegro, while Chance, the other Team Lead, did not have any written warnings or counselings. (Dallegro Aff. ¶ 21/ Def. App. p. 382)
The Court has serious doubts that Boyce has made out a prima facie case. Because Chance, the other Team Lead, is also Caucasian, there is no evidence that Boyce was treated differently than a similarly situated person of another race. However, out of an abundance of caution, the Court will address Boyce's arguments on pretext and motivating factor.
An employer's decision to eliminate a job position has been repeatedly recognized as a legitimate, non-discriminatory reason for terminating an employee. E.E.O.C. v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 150 (5th Cir. 1995). Further, termination for performance issues is also a legitimate reason. See, e.g., Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (finding legitimate, nondiscriminatory reason based on performance issues). Thus, Bank of America has met its burden of producing evidence of a legitimate, non-discriminatory reason for Boyce's termination. Boyce must now produce evidence that either challenges the truthfulness of the Bank's reason or raises a fact issue that race was a motivating factor in its decision. See Rachid, 376 F.3d at 312.
(a) Decision-maker
As an initial matter, it is important to determine who the actual decision-maker is, since the discriminatory animus of an employee who is not the decision-maker is typically not sufficient to create a genuine issue of material fact regarding discrimination. See, e.g., Patel v. Midland Mem'l Hosp. Med. Ctr., 298 F.3d 333, 343-44 (5th Cir. 2002). Here, the Court notes that throughout Boyce's argument, there are vague allegations that Suber and Dallegro made joint decisions regarding Boyce and that Dallegro was "compliant" to Suber's demands. (Pl.'s Brief pp. 12, 18) Boyce provides no evidence for these assertions, and indeed, the evidence indicates to the contrary. Dallegro's affidavit states that she made the decision to eliminate a Team Lead position and chose which Team Lead to terminate. (Dallegro Aff. ¶¶ 20-21/ Def. App. pp. 381-82) Suber's testimony contains no similar statement that she played any role in the decision making process. Further, although Suber asked Dallegro to replace Boyce (Pl. App. p. 261), Boyce was not replaced, indicating that Suber did not have substantial influence over Dallegro. See Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (holding discriminatory animus of coworker can be imputed to decision-maker only if coworker possessed leverage or exerted influence over the titular decision-maker). With no evidence to support Suber as the decision-maker, the Court will consider Dallegro as the sole decision-maker as regards Boyce's termination.
(b) Elimination of the Team Lead Position
Because part of the Bank's stated reason for Boyce's termination was the elimination of a Team Lead position, Boyce may demonstrate pretext by producing evidence that the Team Lead position was not, in fact, eliminated. The evidence here shows that the Bank did eliminate Boyce's position as Team Lead. Suber and Chance took over Boyce's duties, and there is only one Team Lead position in Dallas today. (Dallegro Aff. ¶ 24/ Def. App. p. 382; Suber Dep. p. 13:2-13/ Def. App. p. 199) Boyce, instead, chooses to challenge the propriety of Dallegro's decision to eliminate her position. For support, Boyce relies upon a memorandum written by Suber to Dallegro in which Suber questioned the decision to eliminate Boyce's position and asked that Boyce be replaced. (Pl. App. p. 261) However, whether an employer's decision was "the correct one, or the fair one, or the best one" is not a question for the jury. Sauer v. ICI Paints in N. Am., 44 F. Supp. 2d 827, 829 (W.D. Tex. 1999); see also Brown v. CSC Logic, Inc., 82 F.3d 651, 657 (5th Cir. 1996) (finding evidence that "merely question[ed]" the prudence of the employer's methods to be insufficient). Bank of America was permitted to make the business decision to eliminate a Team Lead position, and Boyce has not shown that the Bank's decision was so unreasonable as to be a pretext for discrimination.
(c) Unauthorized Memorandum
Because Dallegro based her decision to terminate Boyce in part on the two written warnings Boyce had received, Boyce attempts to create a fact issue regarding pretext or motivating factor by questioning whether the warnings were racially motivated. Boyce received her first written warning after she allegedly sent out a memorandum without manager approval, causing confusion among Bank employees. (Dallegro Aff. ¶ 18/ Def. App. p. 381; Pl. App. p. 255) Boyce asserts that she in fact had management's approval and cites to a string of e-mails and her own testimony as evidence. (Pl.'s Brief p. 18) Assuming the memo discussed in the e-mails is the same memo she was for which she was disciplined, the e-mails do not indicate that she had management approval. (Pl. App. p. 271) At most, the e-mails show that Boyce sought approval for the memorandum and someone at the Bank was considering it, but there is no evidence that approval was actually given. Boyce's deposition testimony is similarly inconclusive. She states she had the approval of Bill Baker, a manager outside her department, but never indicates that Dallegro (who was responsible for the written warning) was aware of that approval, or that Baker's approval was sufficient. (Pl. Dep. pp. 162:21-163:4/ Pl. App. p. 45) See Sandstad, 309 F.3d at 899(holding issue at pretext stage is whether employer's motive, even if incorrect, was the real motive). Thus, Boyce has not produced evidence that her first written warning was a pretext for race discrimination.
(d) The Terrorist Racist Theory
Boyce also attempts to create a fact issue regarding the propriety of the second written warning she received from Dallegro. According to Boyce, her second written warning was the result of a concerted effort by Suber and Elmore to create false charges against Boyce in an effort to have her terminated. Boyce's argument has its genesis in an unrelated incident where Glenn Wilson, one of Boyce's subordinates, told an individual of Arabic descent that "terrorists can't vote." (Suber Dep. pp. 23:19-24:24/ Pl. App. p. 209; Wilson Aff. ¶ 4/ Pl. App. p. 279) Perceiving this as an inappropriate racial remark, Suber terminated Wilson. From this, Boyce constructs her "Terrorist Racist Charges" theory that because Suber "associated `terrorism' with `racism'" and used that as a basis to fire an employee, that Suber conspired with Elmore and Dallegro to create terrorism charges against Boyce, so Boyce could be fired. (Pl.'s Brief p. 12) While the Court fails to understand the exact logic behind the origin of this theory, the Court will construe Boyce's argument as attacking the substance of the second written warning she received, involving her visits to Elmore's home.
According to Boyce, Suber urged Elmore to make a report of misconduct by Boyce, and then paid off Elmore several months after Boyce was terminated by approving the Bank's reimbursement of new tires for one of Elmore's vehicles. (Pl.'s Brief pp. 12-18) An examination of the evidence, however, does not reveal the conspiracy that Boyce contends existed. Instead, it shows that Elmore reported to Suber that Boyce had stopped by Elmore's house and made her uncomfortable with questions about Suber. (Elmore Dep. p. 20:12-24/ Pl. App. p. 229; Suber Dep. p. 57:5-20/ Pl. App. p. 218) Suber referred her to Human Resources, and Human Resources suggested that Elmore call the police if she believed it necessary. (Elmore Dep. pp. 20:25-21:12/ Pl. App. pp. 229-30; Suber Dep. p. 59:9-11/ Pl. App. p. 218) While it is unclear why the Bank paid for new tires on one of Elmore's cars subsequent to Boyce's termination, there is nothing but Boyce's unsupported speculation linking her termination to the payment.
Based on Elmore's report, Boyce was given a written warning from Dallegro. (Pl. App. p. 256) Absent evidence that Suber or Dallegro were aware that Elmore was lying about Boyce's visit, there is no evidence of pretext. See Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir. 2001) (stating "[t]he issue is whether [the employer's] perception of [the plaintiff's] performance, accurate or not, was the real reason for her termination"). Therefore, Boyce has failed to raise a fact issue of pretext regarding her second written warning.
(e) Other Alleged Incidents
Finally, Boyce identifies several other workplace incidents, including Suber's comments, the lunch at Dakota's, and Suber's request for information regarding Boyce's severance, as evidence that her termination was the result of race discrimination. As described above in Section IV.A.1, Suber's comment regarding "that white woman" is not evidence that Boyce was terminated as a result of racial discrimination. Suber's statement has no demonstrable connection to the decision to terminate Boyce, and Boyce fails to identify any circumstances surrounding the statement that would indicate Suber was attempting to have Boyce terminated. Boyce points to further rude comments by Suber as evidence of discrimination (Pl.'s Brief p. 11); however, none of these comments have any racial overtones or any connection with Boyce's termination. See, e.g., Sandstad, 309 F.3d at 900-01 (disregarding discriminatory statements connected to termination only by "unreasonable inference"). At most, they indicate that Suber disliked Boyce, but do not indicate a reason why.
Boyce also references the lunch at Dakota's with Suber and Chance as evidence of racial discrimination. As described more fully below in Section IV.C.1, there is no evidence that the lunch was inappropriate. Further, Boyce has not demonstrated any race related incidents regarding the lunch or that the lunch has any connection whatsoever with her termination.
Finally, Boyce points to the fact that Suber requested information about Boyce's severance after Boyce was terminated. (Pl.'s Brief p. 18) This simply is not evidence of pretext or that race was a motivating factor in Boyce's termination. Because Boyce has not raised a fact issue as to pretext or a discriminatory motivating factor regarding the decision to eliminate a Team Lead position or the decision to eliminate Boyce's specific position, this Court GRANTS Bank of America's Motion on Boyce's Title VII claims for race discrimination in connection with her termination.
B. Title VII Claims for Retaliation
In her First Amended Complaint, Boyce alleges that her termination was also in retaliation for her report of discrimination in violation of Title VII. (Pl. First Am. Compl. ¶ 6.02) Bank of America moved for summary judgment on Boyce's retaliation claim; however, Boyce failed to address her retaliation claims in her Response. As the party responding to summary judgment, Boyce was required to identify specific evidence in the record and explain the precise manner in which the evidence supports her claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Boyce did not do so. Thus, although the Court may not grant a default summary judgment, the Court may accept the Bank's evidence as undisputed. Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); see also Ragas, 136 F.3d at 458 (noting the court does not have the duty to sift through the record in search of evidence to support a party's opposition to summary judgment).
In its Motion, the Bank brought forward evidence that Dallegro, the decision-maker, had no knowledge of a report of race discrimination by Boyce at the time she made the decision to terminate Boyce. (Dallegro Aff. ¶ 23/ Def. App. p. 382) Boyce did not challenge this evidence and the Court accepts it as true. Given these facts, there is no basis for the Court to conclude that Dallegro may have retaliated against Boyce because Dallegro was unaware of any report of discrimination. Corley v. Jackson Police Dep't, 639 F.2d 1296, 1300 (5th Cir. 1981); see also Haynes v. Pennzoil Co., 207 F.3d 296, 299-300 (5th Cir. 2000) (granting summary judgment on retaliation claim and noting employer did not receive report of discrimination until after termination decision). As such, Boyce has failed to raise a fact issue regarding retaliation. Finding that Dallegro, the decision-maker, was not aware of a report of race discrimination by Boyce, the Court GRANTS Bank of America's Motion on Boyce's retaliation claim.
C. Sabine Pilot Claims
As an alternative to her discrimination and retaliation claims, Boyce argues she was terminated solely for refusing to commit an illegal act, an exception to the at-will employment doctrine created by the Texas Supreme Court in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1983). In order to establish a prima facie case of wrongful termination under Sabine Pilot, Boyce must prove that (1) she was required to commit an illegal act which carries criminal penalties; (2) she refused to engage in the illegal act; (3) she was discharged; and (4) the sole reason for her discharge was her refusal to commit the illegal act. White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003). Boyce points to her lunch at Dakota's with Suber and Chance and Suber's instructions to record certain telephone calls as the illegal actions that prompted her termination.
1. Lunch at Dakota's
When Boyce, Suber, and Chance went to lunch at Dakota's, Suber asked Chance to pay for the lunch with Chance's corporate card. (Boyce Dep. 107:19-23/ Pl. App. p. 31) Although believing Bank policy required Suber to pay for the lunch, Boyce chose to remain quiet. (Boyce Dep. 106:4-6/ Def. App. p. 69; 112:25-113:4/ Def. App. pp. 72-73) Several weeks later, Boyce approached Dallegro and asked whether Boyce should reimburse the Bank for the lunch. (Boyce Dep. pp. 109:17-110:11/ Pl. App. p. 32) Dallegro told her the lunch was not in violation of Bank policy and that Boyce did not need to reimburse the Bank. (Boyce Dep. p. 112:7-12/ Def. App. p. 72) Boyce contends that this episode somehow constituted a refusal to commit theft as defined by § 31.03 of the Texas Penal Code; however, her argument fails on several counts.
First, there is no evidence that Boyce's actions would have amounted to a theft. Suber had obtained permission for the lunch prior to the lunch, and Dallegro subsequently informed Boyce that no reimbursement was required. Regardless of whether Chance or Suber paid for the lunch, there is no evidence that the Bank disapproved of the lunch or considered it a misappropriation of funds, negating an essential element of theft. TEX. PENAL CODE § 31.03(b)(1) (Vernon 2003 Supp. 2004) (stating that theft must be without the owner's effective consent); see also Klumpe v. IBP, Inc., 309 F.3d 279, 284(5th Cir. 2002) (holding there must be evidence that act is unlawful to give rise to Sabine Pilot claim). Further, even assuming the actions constituted a theft, Boyce never refused to participate. She ate the lunch and raised no objection at the time, and, although she inquired about reimbursing the Bank, there is no evidence Boyce ever did so. See White, 319 F.3d at 677 (granting summary judgment when evidence showed plaintiff did not refuse to commit the illegal acts). Because Boyce fails to make a prima facie case under Sabine Pilot, the Court GRANTS the Bank's Motion on Boyce's Sabine Pilot claim regarding the lunch at Dakota's.
2. Recording Telephone Calls
Boyce's next Sabine Pilot claim is based on Suber's instructions to record the business calls answered by her subordinates at the Help Desk for purposes of evaluation. Boyce claims recording such calls violates the Federal Electronic Communication Privacy Act, 18 U.S.C. §§ 2510 et seq. (2000 Supp. 2004), and the Texas Interception of Communications Act, TEX. CIV. PRAC. REM. CODE ANN. §§ 123.001 et seq. (Vernon 1997 Supp. 2004). (Pl. First Am. Compl. ¶ 4.02) Boyce cannot survive summary judgment in this instance because the undisputed evidence shows that no one in management was aware that Boyce was refusing to record calls, making it impossible to have fired her for that reason. The summary judgment evidence demonstrates that neither Dallegro (the decision-maker), Suber, or Chance were aware of any concerns Boyce had about recording telephone calls. (Chance Aff. ¶ 7/ Def. App. p. 392; Dallegro Aff. ¶ 23/ Def. App. p. 382; Suber Aff. ¶ 12/ Def. App. p. 389) Further, Boyce herself admitted that she did not tell anyone of her refusal to record calls. (Boyce Dep. p. 124:11-13/ Def. App. p. 81) Thus, Boyce could not have been fired for the sole reason that she refused to commit an illegal act if no one knew of the refusal. See, e.g., Corley v. Jackson Police Dep't, 639 F.2d 1296, 1300 (5th Cir. 1981) (retaliation context).
Also fatal to Boyce's claim is the fact that Bank of America has put on evidence of a legitimate reason for Boyce's termination that Boyce has been unable to rebut. If an employee is terminated for refusing to commit an illegal act and for a legitimate reason, there is no liability. Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995). Here, the Bank has demonstrated a legitimate reason for Boyce's discharge, outlined in Section IV.A.2. Boyce has not been able to create a fact issue as to the veracity of that reason and presents no evidence linking her refusal to record calls to her termination. Indeed, when directly questioned, Boyce said she believed she was terminated because Suber did not like her. (Boyce Dep. p. 118:8-15/ Def. App. p. 76) Without evidence that Dallegro was aware of Boyce's refusal to record telephone calls and because the Bank has demonstrated a legitimate reason for terminating Boyce, this Court GRANTS Bank of America's Motion on Boyce's Sabine Pilot claim regarding the recording of telephone calls.
D. Breach of Contract Claims
Boyce's breach of contract claim stems from conversations she had with Spencer prior to returning to Bank of America in 1999. During those conversations, Boyce claims that Spencer promised that Boyce would be credited with her prior six (6) years of service at the Bank for benefits purposes. (Boyce Dep. pp. 36:24-37:19/ Pl. App. pp. 13-14) Upon her termination, Boyce claimed she was supposed to receive severance based on her prior six years of service. Bank of America moved for summary judgment on the theory that Spencer did not have the authority, actual or apparent, to make that type of contract with Boyce.
The Bank has produced evidence that Spencer did not have the actual authority to make such a contract (Wells Aff. Ex. C/ Def. App. pp. 406-19), and Boyce has presented no evidence to dispute that fact, instead relying on apparent authority. To establish apparent authority, Boyce must demonstrate that the Bank took actions that made it reasonable for her to believe that Spencer had the authority to make the contract. Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998). Asserting it took no such actions, the Bank produced evidence that (1) the Bank's severance policy specifically states that the Bank of America Corporation Corporate Benefits Committee is responsible for administering the severance policy plan and Spencer was not a member of that committee (Wells Aff. Ex. C/ Def. App. pp. 406-19); (2) Spencer was not a member of the Bank's benefits department (Boyce Dep. pp. 37:24-38:1/ Def. App. pp. 22-23); (3) Boyce's offer letter, which she signed, made no mention of crediting her with her prior six years of service and, in fact, stated her benefits would start 60 days after she began working at the Bank (Def. App. p. 338-39); and (4) a Bank newsletter sent to employees in 2001 stated that Bank employees with breaks in service of over 180 days would not receive credit for their prior service. (Wells Aff. ¶ 3 Ex. D/ Def. App. pp. 399, 420) Boyce does not challenge this evidence, and provides no other evidence that the Bank took any affirmative act that made her believe Spencer had the authority to alter her benefits.
Neither has Boyce shown that a contract regarding company benefits is one usually made by Spencer in the ordinary course of the Bank's business. See Brown v. Grayson Enters., Inc., 401 S.W.2d 653, 656 (Tex.App.-Dallas 1966, writ ref'd n.r.e.). Boyce simply relies on Spencer's title as PC Link Manager. (Pl.'s Brief p. 39) Given the unrebutted evidence that Spencer did not have the actual authority to alter benefits, a managerial title alone will not confer on him the apparent authority to contract with Boyce regarding her benefits and seniority. Without actual or apparent authority, there is no contract. Therefore, the Court GRANTS Bank of America's Motion on Boyce's claim for breach of contract.
Boyce also references her maternity leave as evidence of the contract; however, her deposition testimony on that point is unclear as to what was unusual about the maternity leave she was given. (Boyce Dep. pp. 65:2-67:8/ Pl. App. p. 21) Without clarity as to how her maternity leave demonstrates the existence of a contract, the Court cannot credit her statement that her maternity leave was due to her prior six years of service, as that statement is conclusory.
E. Conversion Claims
Boyce's conversion cause of action arises from her claim that, despite her demand that the Bank return all of her personal property, the Bank has retained some items, such as financial papers, photographs, children's art work, a CD case, and software materials. (Pl. First Am. Compl. ¶ 8.02) The Bank produced evidence that, after being provided with a list of her belongings, the Bank located all the items it could and gave them to Boyce. (Boyce Dep. p. 188:20-22/ Def. App. p. 128; Suber Dep. pp. 40:19-41:8/ Def. App. pp. 209-10; 48:7-10/ Def. App. p. 212) The Bank then offered Boyce the opportunity to come back to her office after hours to look for the rest of the items. (Stobbe Aff. Ex. B/ Def. App. p. 429)
An essential element of conversion is the intent to exercise control over the plaintiff's property. Dolenz v. Nat'l Bank of Tex., 649 S.W.2d 368, 370 (Tex.App.-Fort Worth 1983, writ ref'd n.r.e.); see also Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex.App.-Austin 2004, no pet. h.). Here, however, the Bank has demonstrated that it did not have the intent to control Boyce's property. The Bank gave back all of the items it could find upon Boyce's request and offered Boyce the opportunity to come search for the remaining items. Although Boyce claims she never saw the letter containing the offer to come to the Bank, the letter was sent to Boyce's attorneys, whom she had designated as her legal representatives. (Stobbe Aff. Ex. B/ Def. App. p. 429) This negates intent, absent evidence to the contrary. Because Boyce has not put on evidence that the Bank intended to convert her property, the Court GRANTS Bank of America's Motion on Boyce's claim for conversion.
F. Intentional Infliction of Emotional Distress Claims
Finally, Boyce asserts that Bank of America intentionally inflicted emotional distress on her. The elements of a claim for intentional infliction of emotional distress are (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). Emotional distress must be the intended or primary consequence of the defendant's conduct, else the claim must be dismissed. Id. In its Motion, Bank of America challenges whether Boyce has sufficient evidence that the Bank engaged in extreme and outrageous conduct.
To constitute "extreme and outrageous conduct" sufficient to support a claim for intentional infliction of emotional distress, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Insults, indignities, threats, annoyances, petty oppressions and other trivialities are not sufficient. GTE Southwest v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). Neither, typically, is insensitive and rude behavior. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
In GTE Southwest, Inc. v. Bruce, the Texas Supreme Court recognized that a claim for intentional infliction of emotional distress could be brought in the employment context. 998 S.W.2d at 612. However, the Court cautioned that the cause of action would not lie for ordinary employment disputes, but could be proven only in the most unusual of circumstances. Id. at 613. The rationale for its decision is that in order to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer and discipline employees without being subject to liability. Id. at 612.
In this instance, Boyce identifies a laundry list of events that she asserts rise to the level of extreme and outrageous conduct, including her failure to promote claim, her termination, the incidents surrounding her Sabine Pilot claims, and Suber's alleged rude comments. (Pl.'s Brief pp. 29-32) However, none of the events, individually or collectively, constitute extreme and outrageous conduct sufficient to avoid summary judgment.
Boyce asserts that her allegations that she was not promoted to the position of DSS Manager despite having a good review and believing herself better qualified than Suber and her eventual termination are evidence of extreme and outrageous conduct. Such instances, however, are simply ordinary employment disputes that the Texas Supreme Court has stated do not constitute extreme and outrageous conduct. See GTE, 998 S.W.2d at 613. Boyce also cites to her Sabine Pilot claims as further outrageous conduct. As noted above, these claims are unsupported by the evidence. See Section IV.C, supra. Further, even if an employer takes action that would be illegal in the employment context, it is not necessarily extreme and outrageous conduct. See, e.g., Wilson v. Sysco Food Servs. of Dallas, Inc., 940 F. Supp. 1003, 1013 (N.D. Tex. 1996) (holding supervisor's conduct, including reprimanding plaintiff for refusing to sleep with customers and ultimately terminating her, was insufficient to rise to the level of extreme and outrageous conduct). Finally, the rude comments by Suber are simply the annoyances and indignities that arise in the workplace, but do not give rise to an intentional infliction of emotional distress claim. Because Boyce's evidence does not demonstrate conduct that rises to the level of extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress, the Court GRANTS Bank of America's Motion on Boyce's intentional infliction of emotional distress claim.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Bank of America's Motion for Summary Judgment on all of Boyce's claims for race discrimination under Title VII, retaliation under Title VII, Sabine Pilot, breach of contract, conversion, and intentional infliction of emotional distress.
SO ORDERED.