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holding that employer's comments that plaintiff's "accent was too prominent" or that "she suspected a Nigerian client . . . the subject of a fraudulent wire transfer that originated in Nigeria" were stray remarks
Summary of this case from Davis v. RealPage, Inc.Opinion
Civil Action No. 3:02-CV-1591-L
December 12, 2003
ORDER
Before the court are Defendant Bank of America, N.A.'s Motion for Summary Judgment, filed May 28, 2003; and Plaintiff's Motion for Partial Summary Judgment on Liability, filed September 19, 2003. After careful consideration of the motions, responses, replies, summary judgment evidence, record and applicable law, the court grants in part and denies in part Defendant Bank of America, N.A.'s Motion for Summary Judgment; and denies Plaintiff's Motion for Partial Summary Judgment on Liability.
I. Factual and Procedural Background
This is an employment discrimination and retaliation case. Plaintiff Nixon Winter ("Plaintiff or "Winter") is a black male of Nigerian national origin. Winter was employed by Defendant Bank of America, N.A. ("Defendant," "Bank of America," or "the Bank") from April 1997 until October 29, 2001. During his employment with Bank of America, Winter was promoted to the position of banking center manager in January 1999 and to the position of assistant vice president in November 1999.
In March 2000, Winter applied for a position as a client manager in the Bank's Premier Banking group ("Premier Banking"). At that time, there were five openings for the position of client manager. Premier Banking provides high level service to customers with substantial financial relationships with the Bank or to customers who could potentially develop such relationships in the near future. Client managers were expected to develop one-on-one relationships with their customers to make banking easy and convenient and to understand their customers' financial goals and advise them of the appropriate resources and financial services offered by the Bank.
Christine Singh ("Singh"), a senior vice president who was the market manager for South Dallas Premier Banking, interviewed Winter for a client manager position. Although Singh was impressed with Winter in terms of his ability to produce results, she had some other concerns. Specifically, she received negative feedback regarding Winter's interpersonal skills from a co-worker. Additionally, Winter's manager expressed concern regarding his ability to build client relationships over the telephone because his accent might make it difficult for some customers to understand him; nonetheless, Singh wanted to offer Winter the position. Before doing so, however, she arranged for her manager and a few other executives to interview Winter so that they could provide their opinion of him. Singh ultimately decided to promote Winter.
Apparently, Winter was promoted to the client manager position later in March 2000. The record, however, does not reflect the exact date of the promotion.
On July 9, 2001, Singh met with Winter to address several customer complaints that had been filed against him. In response, Winter questioned the authenticity and the veracity of the complaints. Four days later, on July 13, 2001, Winter submitted a written complaint against Singh to the personnel supervisor, Mary Kanaga ("Kanaga") in which he claimed a hostile work environment. On July 16, 2001, Singh provided Winter with an updated coaching memorandum in which she explained the need to improve his customer satisfaction rating and warned that a failure to do so could result in termination. On October 24, 2001, Winter, Singh and a new personnel supervisor Rich Jiwanlal ("Jiwanlal") met for a formal coaching session and final warning. Winter became upset during this meeting. Five days later, on October 29, 2001, Singh discharged Winter.
Sometime after Winter filed his complaint against Singh but before the October 24, 2001 meeting, Jiwanlal replaced Kanaga.
On November 19, 2001, Winter filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), contending race and national origin discrimination and retaliation. He received a right-to-sue letter from the EEOC on May 30, 2002. On July 26, 2002, Winter filed suit, contending violations of Title VII of the Civil Rights Act of 1964 ("Title VH") and 42 U.S.C. § 1981. Specifically, Winter contends that Bank of America discriminated against him on the basis of his race and national origin when he was discharged. Winter also contends that his discharge was in retaliation for his discrimination complaints against Singh. Bank of America has filed for summary judgment, and Winter has filed for partial summary judgment on liability.
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, 475U.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, 506U.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. Defendant's Motion for Summary Judgment
1. Applicable Standard of Proof
Winter and Bank of America disagree regarding the applicable standard of proof on Winter's discrimination claims. Winter maintains that the court should apply the "mixed-motives" analysis found in Desert Palace, Inc. v. Costa, ___ U.S. ___, 123 S.Ct. 2148, 2150, 156 L.Ed.2d 84 (2003). A "mixed-motives" case is one in which the adverse employment decision is motivated by both legitimate and illegitimate, that is, discriminatory, reasons. Waltman v. International Paper Co., 875 F.2d 468, 481 (5th Cir. 1989).
Desert Palace makes clear that direct evidence of discrimination is not necessary to obtain a mixed-motive jury instruction under Title VII. 123 S.Ct. at 2150, 2155.
Bank of America counters 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. A pretext case is one in which the "employer has either a discriminatory or a non-discriminatory rationale for its actions." Waltman., 875 F.2d at 481. (emphasis in original).
As an initial matter the court declines to accept Winter's suggestion that the McDonnell Douglas burden-shifting paradigm no longer exists after Desert Palace. This would not be an evolution but a revolution in employment discrimination law. If the Supreme Court were going to make a draconian departure from 30 years of well-established employment discrimination precedent, it would have done so with unmistakable clarity, In Desert Palace, the Supreme Court does not even intimate that it is overruling, restricting or clarifying McDonnell Douglas. Moreover, no Fifth Circuit authority embraces Winter's interpretation of Desert Palace. See Read v. BT Alex Brown Inc., 72 Fed. Appx. 112 (5th Cir. 2003).
In Read, the Fifth Circuit cited to Desert Palace; however, it applied the McDonnell Douglas burden-shifting framework to the plaintiff's sex and age discrimination claims. If the Fifth Circuit believed that Desert Palace abrogated the burden-shifting framework set forth in McDonnell Douglas, it certainly would have deemed it necessary to elevate Read to the status of a published opinion, rather than making it an unpublished opinion having no precedential value.
The court must now determine which analysis applies here. See Mooney v. Aramco. Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (A case need not be labeled as a "mixed motives" case or pretext case from its inception; but at some point, the court must determine whether the case involves mixed motives.). Bank of America contends that this is a pretext case because there is no evidence that it had legitimate and illegitimate reasons for discharging Winter and because Winter does not concede that it had any legitimate reason to terminate his employment. The court agrees. Accordingly, this case will be analyzed pursuant to the burden-shifting framework under McDonnell Douglas. Nevertheless, even if the court applied the "mixed motives" analysis, the ultimate burden of proving intentional discrimination remains with the plaintiff. See Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Read, 72 Fed. Appx. at 115 (citing Desert Palace, 123 S.Ct. at 2150).
1. Discrimination
Winter brings claims of race and national origin discrimination under Title VII and § 1981. Under the applicable burden-shifting paradigm for Title VII and § 1981 discrimination claims, Winter must establish a prima facie case of discrimination; Bank of America must then articulate a legitimate, nondiscriminatory reason for its action; and finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Winter must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See McDonnell Douglas Corp., 411 U.S. at 802-04; Burdine, 450 U.S. at 252-53; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000). To establish a prima facie case of discrimination for a discharge, Winter must establish: (1) that he is a member of a protected class; (2) that he was qualified for the position; (3) that he was terminated from the position; and (4) that he was replaced by a person outside the protected group, or that he was discharged because of his national origin. See Byers, 209 F.3d at 426-27.
Although Winter contends that he was discriminated against because of his national origin (Nigerian) and color (black), his claims are indistinguishable. See Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981) (In some contexts, national origin and racial discrimination are "so closely related. as to be indistinguishable "). Therefore, the court finds that Winter's race and national origin are so closely related that a separate claim for race discrimination would merely duplicate the national origin discrimination claim. The summary judgment evidence make it unequivocally clear that national origin discrimination is being asserted, and the claims of racial discrimination are simply superfluous. For this reason, the court does not consider them to be separate and distinct claims. Even if one could consider them as separate and distinct claims, the race discrimination claim necessarily fails for the same reasons that the national origin claim fails.
When they are urged as parallel causes of action, the same standard of proof applies to Winter's disparate treatment claims under both Title VII and § 1981. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999); Baltazar v. Holmes, 162 F.3d 368, 373 (5th Cir. 1998). For this reason, Winter's Title VII and § 1981 discrimination claims will be analyzed together.
The burden-shifting analysis prescribed in McDonnell Douglas for employment discrimination claims is also applicable in suits brought under § 1981 See Wallace v. Texas Tech Univ, 80 F.3d 1042, 1047 (5th Cir 1996).
Bank of America concedes that Winter can establish a prima facie case. Winter contends that this concession precludes summary judgment in favor of the Bank. Specifically, he contends that the existence of a prima facie case not only establishes sufficient evidence upon which a reasonable jury could find discrimination but also shifts the burden of proof. The court disagrees. While Winter is correct that a plaintiff can survive summary judgment if a prima facie case is established and the defendant does not rebut the presumption of discrimination created by the prima facie case, this is not the case here. Bank of America has proffered several reasons as legitimate, nondiscriminatory reasons for discharging Winter. Further, Winter bears the ultimate burden of proving, by a preponderance of the evidence, that the Bank intentionally discriminated against him because of his national origin." Burdine, 450 U.S. at 253; Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001)).
The court now turns to whether Bank of America has articulated legitimate, nondiscriminatory reasons for terminating Winter's employment. Bank of America contends that it discharged Winter because of (1) an inordinate number of complaints; and (2) his unprofessional demeanor and insubordinate behavior. As these are legitimate, nondiscriminatory reasons to discharge an employee, Bank of America has met its burden. Now, the burden shifts back to Winter to demonstrate that Bank of America's articulated reasons are a pretext for intentional discrimination.
After a Title VII case reaches the pretext stage, the question for summary judgment is whether a rational factfinder could find that Bank of America intentionally discriminated against Winter on the basis of his national origin. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). 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). "Pretext-plus" is not required to support an inference of retaliatory discrimination. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000). "[A] plaintiff 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 discriminate," and may therefore be enough to prevent summary judgment or judgment as a matter of law. See Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 148 (2000); Sandstad, 309 F.3d at 897. This showing, however, is not always enough to prevent summary judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148. On the other hand, in the context of an unlawful discrimination or retaliation claim, summary judgment is inappropriate "if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [national origin] was a determinative factor in the actions of which [a] plaintiff complains." Vadie v. Mississippi State Univ., 218 F.3d 365, 373 n. 23 (5th Cir.), reh'g denied, 232 F.3d 212 (5th Cir. 2000), cert. denied, 531 U.S. 1113 (2001) (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996)) (en banc).
Winter contends that Bank of America's proffered reasons for his discharge are false, In support of his argument that a pretext exists, Winter contends that (1) the complaints in question were fabricated or a result of misunderstandings; (2) his alleged unprofessional behavior was exaggerated; and (3) a litany of other acts of alleged disparate treatment viewed as a whole support a finding of discrimination. The court determines that Winter has failed to establish that Bank of America's articulated reasons for his discharge were a pretext for intentional discrimination.
Winter admits that "he does not seek a remedy for [these] acts, but tenders this evidence as background evidence to prove discrimination and retaliation in his discharge." Plaintiff's Brief Supporting His Response to Defendant's Motion for Summary Judgment ("Pl. Resp.") at 19-20. Therefore, the court need not address the Bank's arguments that some of these acts are time-barred or do not constitute adverse employment actions cognizable under Title VII.
First, with respect to the complaints, Winter mistakenly believes that a letter of commendation, dated October 26, 2001, and a subsequent e-mail, dated October 31, 2001, detailing a complaint against Winter by the same customer who sent the letter of commendation call into question all of the complaints filed against him. Winter relies on the testimony of Jiwanlal who allegedly stated that based on these two documents he questions all of the complaints against Winter. Winter further contends that prior to the discrepancy illustrated by these two documents he informed the Bank of the questionable nature of all the other complaints previously filed against him in his July 19, 2001 complaint against Singh. He contends, however, that the Bank failed to properly respond to his concerns in that it did not reprimand Singh or otherwise document his complaint in Singh's personnel file, and the personnel manager, Kanaga, failed to conduct a follow-up meeting with him.
Bank of America objects to the October 26, 2001 letter on the grounds of hearsay. The court overrules the objection.
Bank of America counters that Winter's termination was not based on either the October 26, 2001 letter or the October 31, 2001 e-mail as they were not received by the Bank until after his discharge. It discounts the testimony of Jiwanlal in which he allegedly states that these two documents call into question all the complaints against Winter. The Bank contends that Jiwanlal was confused and that his confusion is understandable, given that neither of these documents was considered at the time of Winter's termination. Bank of America also contends that these documents are not evidence of fraud as Winter implies but rather evidence of the fickle nature of that customer. Bank of America further counters that it conducted a reasonable review of Winter's complaint against Singh, including requiring her to address, in writing, each of his concerns. The Bank contends that after all the information was reviewed it concluded that no discrimination had occurred, and therefore no reprimand was necessary.
As an initial matter, the court notes that Winter misconstrues Jiwanlal's testimony and takes it totally out of context. The court does not know whether this was done inadvertently or intentionally; however, the effect is the same. Jiwanlal testified that, at best, the October 26, 2001 letter and October 31, 2001 e-mail would only call into question the reliability of the October 31, 2001 complaint. He specifically states that these documents do not create any doubt as the to reliability of all the other complaints. Appendix to Plaintiff's Brief Supporting His Response to Defendant's Motion for Summary Judgment ("Pl. App.") at 270 (59:10-18). Contrary to Winter's representations to the court, Jiwanlal testified as follows: "But I would not say that I'm going to question — I would personally question all of the complaints because of these two letters." Pl. App. at 271 (60:1-3) (emphasis added).
Jiwanlal testified as follows when questioned about the October 26, 2001 letter and the October 31, 2001 e-mail:
Q. Does that obvious conflict within two or three days of each other cause you any concern about the reliability of alleged customer complaints that you were hearing about?
A. This one it does but —
Q. Does it create any doubt about any of the others?
A. No, sir, not all of them because I've read several of them and as I indicated before, they all can't be —
Q. They all can't be bogus?
A. Yeah, or manufactured or whatever. I mean, I just —
Pl. App. at 270 (59:10-18).
The Bank offers no evidence to support its contention that the October 26, 2001 letter and October 31, 2001 e-mail were not considered when the decision to discharge Winter was made. Nonetheless, even if these documents create a fact question, they do so only as to the validity of this customer's complaint. Winter has offered no competent summary judgment evidence to dispute the existence of the other documented complaints lodged against him in the six months preceding his termination. An "employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984) (citing Megill v. Board of Regents, 541 F.2d 1073, 1077 (5th Cir. 1976)). "[E]ven an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an employee's competence. Motive is the issue. . . . [A] dispute in the evidence concerning job performance does not provide a sufficient basis for a reasonable factfinder to infer that [the] proffered justification is unworthy of credence." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (quoting Little v. Republic Refining Co., Ltd, 924 F.2d 93, 97 (5th Cir. 1991). Further, there is no competent summary judgment evidence that he was treated differently than other similarly situated employees. Accordingly, Winter has not established the existence of a fact question regarding whether the complaints upon which his termination was based were merely a pretext for discrimination.
Bank of America objects on the grounds of hearsay to the allegations in paragraphs 12 and 13 of Winter's affidavit relating to his alleged conversations with customers regarding their complaints. The court sustains the objection, and such statements will not be considered. See Eason, 73 F.3d at 1325.
Second, Winter contends the characterizations of his demeanor and behavior are not credible because the only "witnesses" are Singh and Jiwanlal and because the Bank did not offer any evidence that his former supervisor considered his demeanor or behavior problematic. Bank of America counters that Winter's unprofessional behavior and demeanor were witnessed by more people than just Singh and Jiwanlal, including a co-worker who had personal knowledge of his "belligerent" attitude with a customer and Singh's assistant and two other employees who were frightened by Winter's conduct towards them. Indeed, the Bank notes that during the unemployment compensation process, Winter admitted that at the October 24, 2001 meeting he became upset and angry and walked out of the room. It further contends that it need not present any evidence that his former supervisor experienced problems with his demeanor and behavior because such evidence is irrelevant. The court agrees. The court determines that Winter has offered no competent summary judgment evidence to establish pretext, or create a genuine issue of material fact, with respect to the Bank's characterization of his behavior as insubordinate and unprofessional; nor has he offered any evidence that he was treated differently than other similarly situated employees.
Wmter contends that his former supervisor, Joyce Condit, attempted to rehire him after his discharge. Bank of America objects on the grounds of hearsay to the references in paragraph 18 of Winter's affidavit relating to any alleged out-of-court statements by his former supervisor, Joyce Condit. The court overrules the objection.
Third, Winter's reliance on the other acts of alleged disparate treatment is misplaced. Winter contends that pretext is established because the following acts constitute disparate treatment: (1) he was not assigned to work in the Bank's Park Cities branch office; (2) he received substandard portfolios; (3) he was given accent management classes; (4) he was without an office for five weeks; and (5) he was not promoted to the position of vice president.
With respect to the Park Cities' assignment, Winter contends that the fact that he was not given this assignment is evidence of discrimination. Bank of America offers evidence that the employee selected for the assignment was better qualified than Winter in that the employee had previously worked in that location and thus had experience with the clientele. The Bank also contends that Winter offers no evidence to dispute its reason for not selecting him for the assignment. The court agrees. Winter's conclusory assertion that he was not selected for the assignment because of his national origin is not competent evidence of discrimination. See Forsyth, 19 F.3d at 1533.
With respect to the substandard portfolios, Winter states in his affidavit that he was the only client manager who did not receive a portfolio of existing customers. Winter, however, testified in his deposition that he received a portfolio of at least 260 existing customers. Winter does not explain why his affidavit varies from his deposition testimony. Unexplained variances between statements in an affidavit and sworn testimony cannot create a fact question that precludes summary judgment. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). Thus, the portions of Winter's affidavit that vary from his sworn deposition testimony are not competent summary judgment evidence, and the court will not consider them. See id. Even if Winter had received a less desirable portfolio, he has not presented any evidence to rebut the Bank's explanation for the manner in which portfolios were assigned the to client managers. Therefore, Winter's conclusory assertion that he was given a substandard portfolio because of his national origin is insufficient to establish or create a genuine issue of material fact regarding discrimination because of his national origin. See Forsyth, 19 F.3d at 1533.
With respect to the accent management classes, although Winter concedes that "he did not have a problem with the training" (Pl. App. at 48 (35:20-25)), he contends that "no other client managers, with heavy accents, had to attend the classes." Winter, however, does not identify "the other client managers with heavy accents" to which he refers. Thus, the court cannot determine if Winter compares himself to employees who are similarly situated. Further, there is no evidence that the classes were mandatory. Thus, it is conceivable that "the other client managers with heavy accents" to which Winter refers could be individuals of Nigerian descent who declined the opportunity to take these classes. Thus, Winter fails to make a showing that he was treated differently than other similarly situated employees.
With respect to the office issue, Winter contends that he was without an office for five weeks after being promoted to client manager. Bank of America counters that Winter, who was the last person to be offered the position of client manager, was one of two who did not have the requisite licenses for the position. It contends that because of logistical problems, Winter and the other unlicensed client manager did not have permanent offices while they studied for their license examinations. The Bank further offers evidence that Winter received his permanent office before the other client manager. Even if Winter had received his office last, he has not presented any evidence to rebut the Bank's explanation for his not having received an office immediately upon his promotion to client manager. While it is true that he did not have an office for five weeks, Winter's conclusory assertion that the reason that he did not have one is because of his national origin is not competent summary judgment evidence. See Forsyth, 19 F.3d at 1533.
With respect to the vice president position, Winter contends that he was treated differently than Derwood Richardson, a white client manager who was promoted to vice president. Bank of America counters that Winter and Richardson were not similarly situated because Richardson did not have as many complaints lodged against him as did Winter. Winter provides no evidence that complaints were filed against Richardson as frequently as against him. See also Telkamp v. Stem Mart, Inc., 2002 WL 324288 * 7 n. 4 (N.D. Tex. 2002) (holding that the plaintiff who received a final warning as a result of a workplace incident was not similarly situated to the other employee involved in the incident who did not receive a final warning because the plaintiff had previous disciplinary complaints). "[T]he conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer." Wallace, 271 F.3d at 221 (citation omitted). Therefore, Winter failed to establish that he and Richardson were similarly situated.
Winter does not bring a failure to promote claim against Bank of America. PL Resp. at 20. Instead, he tenders this issue as "background evidence" to support his discriminatory discharge claim.
Bank of America also contends that the standards for promotion to the position of vice president changed after Richardson was promoted to vice president. Whether a fact question exists regarding promotion to vice president is of no moment because this issue is not before the court, as Winter does not allege in his complaint a failure to promote claim against the Bank. Thus, a fact question, if any, is not a material fact question that can preclude summary judgment. See Anderson, 477 U.S. at 248.
The court has addressed and disposed of the arguments asserted by Winter for his belief that the stated reasons by Bank of America were a pretext for intentional discrimination. Bank of America, however, sets forth other evidence which negates the existence of pretext. First, Winter was not treated differently than any similarly situated employee. The undisputed evidence reveals that no other employee had the documented interpersonal and behavioral problems as did Winter. Second, Singh both promoted and fired Winter. Under the "same actor" doctrine, when the same individual makes the decision to hire the plaintiff and later to fire the plaintiff, there is an inference that [national origin] discrimination was not the motive behind [the] termination." Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). The reason for the doctrine is that the decisionmaker's presumed animus against the protected class, as the motive for the termination, is inconsistent with the decision to hire the plaintiff in the first place. Id. The "same actor" doctrine creates only an inference, which can be overcome by sufficient evidence the that stated reason for the termination was pretext for discrimination. Id.
Winter contends that whatever weight the same actor doctrine might have it is nullified by discriminatory comments allegedly made by Singh. Singh allegedly told Winter that (1) he should get his teeth fixed; (2) he should wear nicer work clothes; (3) his accent was too prominent; (4) rich white women in the Highland Park area did not like dealing with minorities, especially black men; and (5) she suspected a Nigerian client when she learned that the client's account had been the subject of a fraudulent wire transfer that originated in Nigeria.
With respect to the first two comments, the court determines that they do not even arguably involve discriminatory animus. To the court's knowledge, no racial or ethnic group has a monopoly on good teeth or nice clothes. Although these comments can be considered insensitive, offensive and rude, they are insufficient to infer national origin discrimination. See Boyd v. State Farm Ins. Cos., 158 F.3d 326, 329-30 (5th Cir. 1998), cert. denied, 526 U.S. 1051 (1999) ("The mere utterance of a racial epithet is not indicia of discrimination under Title VII".). While the third comment could arguably involve discriminatory animus, the facts in this case negate such a finding. It is undisputed that Winter acknowledged that his accent was prominent and appreciated being offered the accent management classes. Indeed, Winter admits that the classes assisted him in achieving one of his personal goals.
Bank of America contends that the last two comments amount to stray remarks. The court agrees. Stray remarks can be considered as evidence of pretext (as Winter argues), but only when accompanied by sufficient indicia of relevance — essentially, the four-part test originated in Brown and still recognized by the Fifth Circuit post- Reeves: For comments in the workplace to provide sufficient evidence of discrimination, they must be (1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to the terminations; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (citations, internal quotation marks, and internal brackets omitted). Given the state of the evidence, assuming Singh made the statements attributed to her, the court characterizes them as stray remarks which are offensive and rude but insufficient to infer discrimination. See Boyd, 158 F.3d at 329-30.
The evidence in this case clearly reveals that Winter was terminated, not for his national origin, but because of the number of complaints filed against him and his unprofessional and insubordinate behavior. The court will not second-guess the Bank's personnel decision. See Walton v. Bisco. Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997). Moreover, no evidence in the record creates an issue of fact that Bank of America treated Winter differently from other similarly situated employees. Accordingly, summary judgment is appropriate on behalf of Bank of America on Winter's discrimination claims.
Winter's § 1981 claim fails for the same reason as does his Title VII claim. See Shackelford, 190 F.3d at 403 n. 2; Baltazar, 162 F.3d at 373.
2. Retaliation
Winter also brings a retaliation claim. Specifically, Winter contends that he was discharged for submitting his July 13, 2001 complaint against Singh.
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employee" who had either availed themselves of Title VII's protections or assisted others in so doing. See 42 U.S.C. § 2000e-3(a). Winter offers no direct evidence of retaliation. The court therefore assesses his claims under the McDonnell Douglas framework. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Id.; Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 519 (5th Cir. 2001). The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id. Once the defendant does so, the inference of discrimination created by the prima facie case disappears, and the ultimate question becomes whether the protected conduct was the "but for" cause of the adverse employment action. Id.
As the court determines that Desert Palace is inapplicable to a retaliation case, it declines Winter's invitation to apply the holding of Desert Palace to his retaliation claim.
Bank of America has failed to establish that there is no evidence to support Winter's retaliation claim. Indeed, the Bank's entire brief, except for the legal standard for retaliation, is devoted to Winter's discrimination claims. Other than a recitation of the standard, there is no discussion or analysis of Winter's retaliation claim. The Bank appears to take the position that if no discrimination exists there can be no retaliation. Such a position does not correctly reflect the law. To prevail on a retaliation claim, one need not prove an underlying discrimination claim. See Vadie, 218 F.3d at 374 n. 24 (citing Shackelford, 190 F.3d at 405 n. 4). "Similarly, evidence sufficient to support a claim of retaliation is not necessarily sufficient to support a claim of discrimination." Id. Accordingly, Bank of America is not entitled to judgment as a matter of law on Winter's retaliation claim.
B. Plaintiffs Motion for Partial Summary Judgment on Liability
Winter moves for partial summary judgment on the issue of liability. Specifically, he contends that because Bank of America conceded the existence of a prima facie case of discrimination and it failed to assert a "mixed motives" defense, he is entitled to judgment as a matter of law pursuant to the holding in Desert Palace. Bank of America counters that Winter misconstrues the holding and applicability of Desert Palace, and in any event, it asserted an affirmative defense broad enough to invoke a "mixed motives" defense.
The court has already determined that this case is not a "mixed motives" case, and it has granted summary judgment on Winter's discrimination claims to Bank of America. The court has also determined that Desert Palace is inapplicable to a retaliation claim. Accordingly, the court determines that Plaintiff is not entitled to judgment as a matter of law on the issue of liability.
IV. Conclusion
For the above stated reasons, genuine issues of material fact exist with respect to Winter's retaliation claim. Therefore, summary judgment is denied with respect to this claim. No genuine issues of fact exist with respect to Winter's discrimination claims. Thus, the court grants summary judgment on these claims. Accordingly, the court grants in part and denies in part Defendant Bank of America, N.A.'s Motion for Summary Judgment; and denies Plaintiff's Motion for Partial Summary Judgment on Liability. Plaintiff's discrimination claims under Title VII and § 1981 are dismissed with prejudice, and Plaintiff's retaliation claim remains for trial.