Opinion
No. 3-04-CV-0554-D.
April 21, 2006
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Dallas Independent School District ("DISD") has filed a motion for summary judgment in this gender discrimination case brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. For the reasons stated herein, the motion should be denied.
I.
Plaintiff Debbie Pruitt is a licensed journeyman electrician and a 21-year employee of DISD. ( See Plf. MSJ App. at 59A, ¶ 2; Def. MSJ App. at 37). Since 1995, plaintiff has worked as a Estimator/Supervisor in the Maintenance Services Department where she has a variety of responsibilities related to school district construction projects. (Plf. MSJ App. at 59A, ¶ 2; Def. MSJ App. at 37). During her tenure with DISD and in her prior work experience, plaintiff has supervised 15-20 person paint crews, 20-50 person electrical crews, and 15-20 person contractor crews. (Plf. MSJ App. at 59A, ¶ 3). She also has experience reading blue prints, analyzing construction costs, selecting outside vendors, completing projects within budget, and working with computer programs commonly used by field supervisors and coordinators. ( Id.). Her performance evaluations for the past 10 years have ranged from "meets expectations" to "clearly outstanding." ( Id. at 59B, ¶ 4 71-93). In 1997, plaintiff was commended by her field supervisor, Bethel Williams, for "getting any problems resolved" and always being "ready and willing to take on any other challenge offered her." ( Id. at 94).
In or around September 2002, DISD reorganized its Maintenance Services Department into four geographical regions. (Def. MSJ App. at 106, ¶ 3). Each region is headed by a coordinator who works with a field supervisor. ( Id.). Shortly after this reorganization was announced, plaintiff expressed an interest in one of the field supervisor positions. Ed Green, coordinator for the Northeast Division, indicated to plaintiff that he would recommend her for the job. (Plf. MSJ App. at 59B, ¶ 6). However, after discussing the matter with Louis Alonzo, Executive Director of Maintenance Services, Green and another coordinator, Carlos Landin, tempered plaintiff's expectations for a promotion. ( Id. at 59B, ¶ 7). Green allegedly told plaintiff that Alonzo opposed his recommendation, saying "a woman can't be over a man." ( Id.). Undeterred, plaintiff applied for eight different field supervisor and coordinator vacancies between October 2002 and December 2003. ( Id. at 59B-C, ¶¶ 8-13). Each time a male candidate was selected for the position. ( Id.).
After exhausting her administrative remedies, plaintiff filed this action in federal district court alleging gender discrimination in violation of Title VII and the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. § 21.001, et seq. Defendant now moves for summary judgment on the grounds that: (1) plaintiff cannot demonstrate a prima facie case of discrimination; (2) the failure to promote plaintiff was based on legitimate, non-discriminatory reasons; and (3) plaintiff cannot show that the reasons offered by defendant are pretextual or that gender was a motivating factor in her not receiving promotions. The issues have been fully briefed by the parties and the motion is ripe for determination.
On February 8, 2006, plaintiff amended her complaint to allege retaliation in violation of Title VII and the TCHRA. ( See Plf. First Am. Compl. at 3-4, ¶¶ 14-20). Defendant does not move for summary judgment with respect to the newly-asserted retaliation claim.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary judgment who does not have the burden of proof at trial need only point to the absence of a genuine fact issue. See Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). By contrast, a movant who bears the burden of proof at trial must establish "beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Once the movant meets its initial burden, the non-movant must show that summary judgment is not proper. See Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. See Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993).
A.
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" See 42 U.S.C. § 2000e-2(a)(1). To prove discrimination in violation of this statute, a plaintiff may rely on direct or circumstantial evidence, or both. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002), cert. denied, 123 S.Ct. 2572 (2003). "Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Id. at 897. Such evidence may include statements made by the employer or certain of its personnel which show on their face that an improper criterion served as a basis, though not necessarily the sole basis, for the adverse employment action. See Fabela v. Socorro Independent School Dist., 329 F.3d 409, 415 (5th Cir. 2003). If the plaintiff adduces direct evidence of discrimination, the burden shifts to the defendant to establish by a preponderance of the evidence "that the same decision would have been made regardless of the forbidden factor." Fierros v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir. 2001), quoting Brown v. East Miss. Electric Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993).
Because direct evidence of discrimination is rare, a plaintiff also may rely on circumstantial evidence to satisfy her burden of persuasion. A circumstantial case of gender discrimination may be proved by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination, which "creates a presumption that the employer unlawfully discriminated against the employee." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Where, as here, the plaintiff asserts a failure to promote claim based on gender, she must prove that: (1) she was not promoted; (2) she was qualified for the positions she sought; (3) she was within the protected class at the time of the failure to promote; and (4) either the position she sought was filled by someone outside the protected class or she otherwise was not promoted because of her sex. See Rutherford v. Harris County, 197 F.3d 173, 179 (5th Cir. 1999). Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its employment decision. Sandstad, 309 F.3d at 897. This burden "is only one of production, not persuasion, involving no credibility assessments." Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the defendant meets its burden of production, the prima facie case disappears and the plaintiff must offer sufficient evidence to create a genuine issue of material fact on the ultimate issue of intentional discrimination. See Evans v. City of Bishop, 238 F.3d 586, 590 (5th Cir. 2000).
A plaintiff may satisfy the final step of the McDonnell Douglas burden-shifting analysis by offering evidence of either pretext or mixed motives. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100, 123 S.Ct. 2148, 2154, 156 L.Ed.2d 84 (2003); Rachid v. Jack in the Box, 376 F.3d 305, 312 (5th Cir. 2004). Under the pretext alternative, the plaintiff must show that the defendant's reason is not true, "but is instead a pretext for discrimination." Rachid, 376 F.3d at 312. Under the mixed-motives alternative, the plaintiff must prove 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." Id. If the plaintiff elects to proceed under the second alternative and offers sufficient evidence that discrimination was a motivating factor in the employment decision, the burden shifts to the defendant to prove that it would have taken the same action despite any discriminatory animus. See Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005). This final burden "is effectively that of proving an affirmative defense." Id.
B.
Plaintiff alleges that defendant failed to promote her to eight higher paying positions "in favor of promoting males with significantly less experience, education, and skill to these same positions." (Plf. First Am. Compl. at 2-3, ¶ 9). The job postings and names of the male employees ultimately selected to fill the vacancies are:
1. Field Supervisor, Northeast Division, posted September 2002. Jerry Farmer was selected for this position.
2. Field Supervisor, Southeast Division, posted September 2002. Eugene Mitchell was selected for this position.
3. Field Supervisor, Northwest Division, posted September 2002. Cesar Villareal was selected for this position.
4. Field Supervisor, Facilities Services, posted October 2002. Larry McKinnon was selected for this position.
5. Coordinator, Southwest Division, posted November 2002. Paul Gonzalez was selected for this position.
6. Field Supervisor, Southwest Division, originally posted January 2003, reposted May 2003. Joel Falcon was selected for this position.
7. Coordinator, Central Division, posted September 2003. Ron Frasher was selected for this position.
8. Field Supervisor, Central Division, originally posted December 2003, reposted in 2004. Bruno Arreola was selected for this position.
( See Plf. MSJ App. at 59B-59C, ¶¶ 8-13). Plaintiff relies on both direct and circumstantial evidence to prove her failure to promote claims. To survive summary judgment, plaintiff must point to sufficient evidence of discrimination in the record, either direct or circumstantial, to create a genuine issue of material fact for trial.
1.
Plaintiff cites to the statement allegedly made by Louis Alonzo in September 2002, that "a woman can't be over a man," as direct evidence of gender discrimination. ( See id. at 59B, ¶ 7). Defendant counters that this "stray remark" is not probative of discriminatory intent.
Defendant also objects to this statement as inadmissible hearsay. ( See Def. Reply Br. at 1-3). However, "a statement by [a] party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[,]" is excluded from the definition of hearsay. See FED. R. EVID. 801(d)(2)(D). This predicate is clearly established here. When told that plaintiff intended to apply for a vacant field supervisor position, Alonzo, the Executive Director of Maintenance Services for DISD, allegedly told Ed Green and Carlos Landin, two other DISD management employees, that "a woman can't be over a man." Alonzo's statement, whether originally uttered by him or repeated to plaintiff by Green, constitutes a matter within the scope of his agency or employment made during the existence of the employment relationship. As a result, it is not hearsay. See Wilkerson v. Columbus Separate School Dist., 985 F.2d 815, 818 (5th Cir. 1993); Alba v. Loncar, No. 3:03-CV-1295-M, 2004 WL 1144052 at *3 (N.D. Tex. May 20, 2004). Nor is plaintiff required to present independent evidence to corroborate this statement. Her testimony, standing alone, is sufficient to create a genuine issue of material fact for trial. See Vance v. Union Planters Corp., 209 F.3d 438, 442 n. 3 (5th Cir. 2000).
A remark may constitute direct evidence of discrimination if the comment is: (1) related to the protected class of persons of which the plaintiff is a member, (2) proximate in time to the adverse employment action, (3) made by an individual with authority over the employment decision at issue, and (4) related to the employment decision. See Krystek v. University of Southern Mississippi, 164 F.3d 251, 256 (5th Cir. 1999). Alonzo's statement satisfies all four requirements. It was clearly directed towards women, the protected class of which plaintiff is a member. At the time the remark allegedly was made, Alonzo was the Executive Director of Maintenance Services for DISD. He made the statement when told of plaintiff's interest in applying for one of the field supervisor vacancies. In the fall of 2002, within weeks after Alonzo uttered the remark, plaintiff applied for four different field supervisor positions and one coordinator position. Plaintiff interviewed in early 2003, but was not hired to fill any of the vacancies. Instead, the jobs went to five men — Jerry Farmer, Cesar Villareal, Eugene Mitchell, Larry McKinnon, and Paul Gonzalez. Alonzo admits that he was "responsible for approving recommendations of candidates for open positions within the department." (Def. MSJ App. at 102, ¶ 3). Viewed in the light most favorable to plaintiff, the court concludes that Alonzo's derogatory statement about women constitutes direct evidence of discrimination with respect to the five positions plaintiff applied for in September, October, and November 2002. See Vance v. Union Planters Corp., 209 F.3d 438, 442 (5th Cir. 2000) (hiring official's remark that he wanted a "mature man" as president of bank was direct and material evidence of sex discrimination); Portis v. First Nat'l Bank of New Albany, Miss., 34 F.3d 325, 329 (5th Cir. 1994) (supervisor's statement to female subordinate that she "wouldn't be worth as much as the men would be to the bank" was direct evidence of sex discrimination).
Even if Alonzo's statement is not direct evidence of discrimination, it is still probative of discriminatory intent when combined with other evidence of pretext in the record. See Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003), cert. denied, 124 S.Ct. 1441 (2004) ("[S]o long as remarks are not the only evidence of pretext, they are probative of discriminatory intent.").
The court reaches a different conclusion with respect to plaintiff's claims involving the field supervisor and coordinator vacancies originally posted in January, September, and December 2003. Plaintiff applied for each position shortly after the job was posted. (Plf. MSJ App. at 59C, ¶¶ 11-13; see also id. at 69 206). However, defendant did not fill those vacancies until August 2003, October 2003, and March 2004, respectively. ( Id. at 59C, ¶¶ 11-13; see also id. at 34, 205, 210 237-59). Although those jobs went to male applicants, the derogatory remark allegedly made by Alonzo in September 2002 is far too attenuated to the hiring decisions to constitute direct evidence of discrimination. See Akop v. Goody Goody Liquor, Inc., No. 3-04-CV-2058-D, 2006 WL 119146 at *3 (N.D. Tex. Jan. 17, 2006) (Fitzwater, J.) (comment not sufficiently proximate when made eight months before adverse employment action). In addition, by the time plaintiff interviewed for the vacant field supervisor position in 2004, Alonzo was no longer employed by DISD. ( See Def. MSJ App. at 102, ¶ 3). Plaintiff therefore must rely on circumstantial evidence to prove her failure to promote claims as to those three vacancies.
2.
Because plaintiff has established at least part of her gender discrimination claim by direct evidence, defendant must prove it would have hired Farmer, Villareal, Mitchell, McKinnon, and Gonzalez for the vacant field supervisor and coordinator positions regardless of any discriminatory animus. See Fierros, 274 F.3d at 192. In an effort to meet this burden, defendant attempts to show that the male candidates selected to fill those vacancies were better qualified than plaintiff. ( See Def. MSJ App. at 92-98, 118-23; see also id. at 133, ¶ 3, 134, ¶ 4, 139, ¶ 4, 143-44, ¶ 4, 147, ¶ 3 148, ¶ 4). However, such evidence is insufficient to obtain summary judgment under the direct evidence rubric. Fabela, 329 F.3d at 418; Jerge v. City of Hemphill, No. 02-41722, 80 Fed.Appx. 347, 352 (5th Cir. Nov. 10, 2003). See also Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 40 (5th Cir. 1996) (plaintiff who offers direct evidence of intentional discrimination should prevail on summary judgment); E.E.O.C. v. Teleservices Marketing Corp., 405 F.Supp.2d 724, 730 (E.D. Tex. 2005) (summary judgment improper where evidence creates a fact issue as to whether plaintiff can establish intentional discrimination through direct evidence); Texas v. Crest Asset Management, Inc., 85 F.Supp.2d 722, 729 (S.D. Tex. 2000) (same).
C.
Defendant argues that plaintiff cannot prove her failure to promote claims by circumstantial evidence because: (1) she is unable to establish a prima facie case of discrimination with respect to the field supervisor position awarded to Joel Falcon; (2) the failure to promote plaintiff was based on legitimate, non-discriminatory reasons; and (3) plaintiff cannot show that the reasons offered by defendant are pretextual or that gender was a motivating factor in her not receiving any of the promotions.
1.
In its motion, defendant concedes that plaintiff has established a prima facie case of gender discrimination with respect to the coordinator position awarded to Ron Frasher and the field supervisor position awarded to Bruno Arreola. ( See Def. MSJ Br. at 5). However, defendant maintains there is no evidence that plaintiff applied for the field supervisor position posted in January 2003 or that someone else was selected to fill that vacancy. ( Id.). While it is true that defendant did not hire a field supervisor when the position was originally posted due to a hiring freeze, the job was reposted in May 2003 after the freeze was lifted. ( See Def. MSJ App. at 109, ¶ 5; Plf. MSJ App. at 59C, ¶ 11 70). Plaintiff applied for the position, but defendant hired Joel Falcon, a male, in August 2003. (Plf. MSJ App. at 59C, ¶ 11). This evidence is more than sufficient to establish a prima facie case of discrimination with respect to that vacancy.
2.
To justify its hiring decisions for the vacancies filled by Frasher and Arreola, defendant explains that the male applicants were "better qualified" and had more supervisory experience than plaintiff. Selection of the best-qualified applicant for a job is a legitimate, non-discriminatory reason for a hiring decision. See, e.g. Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004); Price v. Federal Express Corp., 283 F.3d 715, 721 n. 2 (5th Cir. 2002). Similarly, basing a promotion on an assessment of qualifications constitutes a legitimate, nondiscriminatory reason. See Young v. Houston Lighting Power Co., 11 F.Supp.2d 921, 930 (S.D. Tex. 1998), citing Jefferies v. Harris County Community Action Ass'n, 693 F.2d 589, 590-91 (5th Cir. 1982). For summary judgment purposes, plaintiff concedes that defendant has met its burden of production on this issue. ( See Plf. MSJ Resp. Br. at 17).
However, defendant offers no explanation whatsoever as to why it hired Falcon instead of plaintiff for the vacant field supervisor position in August 2003. Initially, defendant sought summary judgment with respect to this vacancy on the sole ground that plaintiff did not apply for the job when it was originally posted and that DISD never promoted anyone to that position. ( See Def. MSJ Br. at 5). The first time defendant articulated a reason for hiring Falcon was in its reply brief, when it argued that Falcon, like the male applicants selected to fill the other vacancies, was "better qualified" and that plaintiff lacked "appropriate supervisory experience or ability." ( See Def. MSJ Reply Br. at 22). The court rejects this explanation for two reasons. First, a party may not obtain summary judgment based on new arguments raised for the first time in a reply. See Ghoman v. New Hampshire Ins. Co., 159 F.Supp.2d 928, 936 n. 2 (N.D. Tex. 2001) (Kaplan, J.), citing Senior Unsecured Creditor's Committee of First RepublicBank Corp. v. FDIC, 749 F.Supp. 758, 772 n. 21 (N.D. Tex. 1990) (Fitzwater, J.). Second, the conclusory assertion that Falcon was "better qualified" is not reasonably specific enough to afford plaintiff a realistic opportunity to demonstrate pretext. Patrick, 394 F.3d at 317 (bald and amorphous statement that employee was "not sufficiently suited" for promotion was not specific enough to satisfy employer's burden of production). The court therefore concludes that defendant's belated explanation of why it promoted Falcon to the vacant field supervisor position is insufficient as a matter of law to shift the burden of persuasion to plaintiff.
3.
The final step in the McDonnell Douglas burden-shifting analysis requires the plaintiff to offer sufficient evidence of either pretext or mixed motives to create a genuine issue of material fact for trial. Here, plaintiff appears to argue only pretext. "[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." See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). As the Supreme Court explained in Reeves:
Although plaintiff discusses the "mixed motives" test and the "motivating factor" causation standard throughout her brief, she never concedes that the explanations offered by defendant for its hiring decisions are true. To the contrary, plaintiff vehemently denies that any of the male applicants selected for the vacant field supervisor and coordinator positions were "better qualified" or that she lacked appropriate supervisory experience and ability.
Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt. Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.Id., 120 S.Ct. at 2108-09 (citations and punctuation omitted). See also Bryan v. McKinsey Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004); Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).
a.
As evidence of pretext, plaintiff argues that defendant ignored its own procedures for investigating disparities between interview scores and candidate selection. An employer's failure to follow its own policies and procedures may be probative of discriminatory intent. See Richardson v. Monitronics International, Inc., 434 F.3d 327, 336 (5th Cir. 2005). At her deposition, Diane Miles, Executive Director of Human Resources for DISD, testified that her department looks at interview scores when hiring applicants for a vacancy. If the higher-scoring applicant was not recommended for the position, she would ask the hiring manager for an explanation when the scoring differential is five points or more. ( See Plf. MSJ App. at 26). In this case, Bruno Arreola scored 19 points lower than plaintiff in his interview for field supervisor, yet Arreola was hired for the position without any inquiry by Human Resources. ( Id. at 26-27, 240, 247). The failure to investigate this discrepancy, contrary to established policy, is some evidence of pretext.
Plaintiff also scored 19 points higher than Jerry Farmer in an interview for another field supervisor position. (Plf. MSJ App. at 119-22, 146-49). Defendant did not investigate that discrepancy either.
b.
Plaintiff also points to evidence that defendant pre-selected male candidates, including Ron Frasher, to fill vacancies. "Evidence of preselection operates to discredit the employer's proffered explanation for its employment decision." Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986), cert. denied, 107 S.Ct. 1374 (1987) (citing cases). Here, there is ample evidence to create a fact issue as to whether defendant selected Frasher for the vacant coordinator position before it was even posted. Diane Miles testified that DISD uses a Position-Personnel Authorization ("PPA") form to process applicants who are recommended for transfer or promotion. (Plf. MSJ App. at 20). The PPA form recommending Frasher indicates that his promotion was approved by Louis Alonzo on September 2, 2003 and by Deputy Superintendent Larry Groppel on September 3, 2003 — more than a week before the position was posted and more than a month before interviews were held. ( See Def. MSJ App. at 112, 115 210). Taken together with Alonzo's statement that "a woman can't be over a man," this evidence is sufficient to support an inference of discrimination. See Henderson v. ATT Corp., 933 F.Supp. 1326, 1338 (S.D. Tex. 1996), citing Townsend v. Washington Metropolitan Area Transit Authority, 746 F.Supp. 178, 184 (D.D.C. 1990).c.
Other evidence adduced by plaintiff casts doubt on defendant's articulated reason for not promoting her to the vacant field supervisor and coordinator positions. Although defendant maintains that plaintiff lacked "appropriate supervisory experience or supervisory ability," ( see Def. MSJ Br. at 6), the evidence shows that plaintiff had previously supervised 15-20 person paint crews, 20-50 person electrical crews, and 15-20 person contractor crews. (Plf. MSJ App. at 59A, ¶ 3). She also has experience reading blue prints, analyzing construction costs, selecting outside vendors, completing projects within budget, and working with computer programs commonly used by field supervisors and coordinators. ( Id.). Notwithstanding these impressive qualifications, defendant argues that "at the time of Plaintiff's application to positions [sic], the Plaintiff's supervisory experience with the District did not involve the direct supervision and instruction of employees." (Def. MSJ Br. at 14). While this may be true, it overlooks the fact that both plaintiff and Arreola were employed as Estimator/Supervisors when they applied for the vacant field supervisor position. ( See Plf. MSJ App. at 260). Presumably, their job duties and responsibilities were the same, whether or not they directly supervised or instructed other employees. Yet Arreola was hired by defendant and plaintiff was not. At a minimum, this inconsistency creates a genuine issue of material fact as to whether defendant's stated reason is pretextual. See Rachid, 376 F.3d at 312.
RECOMMENDATION
Defendants' motion for summary judgment should be denied.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
SO ORDERED.