Seastrunk v. Entegris Inc

Brief/Memorandum in Support

N.D. Tex.March 9, 2018

i | P a g e UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION REGINALD SEASTRUNK, § § Plaintiff, § CIVIL ACTION NO. § vs. § 3:16-CV-2795-L § ENTEGRIS, INC., § § Defendant. § PLAINTIFF’S BRIEF IN SUPPORT OF PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Christine Neill Texas Bar No. 00796793 Jane Legler Byrne Texas Bar No. 03565820 Neill & Byrne, PLLC 3141 Hood Street, Suite 310 Dallas, Texas 75219 (214) 748-7777 (214) 748-7778 fax cneill@neillbyrnelaw.com jleglerbyrne@neillbyrnelaw.com Attorneys for Plaintiff Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 1 of 58 PageID 1512 ii | P a g e TABLE OF CONTENTS I. FACTS IN SUPPORT OF SUMMARY JUDGMENT RESPONSE ................................ 1 A. Seastrunk Commences Work at Entegris in 2013 and Receives an “Effective” Performance Review for 2013 ...................................................................................... 1 B. Seastrunk is Assigned the Pivotal Samsung Project in 2014 and Receives an “Effective” Overall Rating on his 2014 Performance Review ..................................... 2 C. Seastrunk Performs Very Successfully in 2015 as Demonstrated by Achievement of “Champion’s Cup” Award for the Samsung Project .................................................... 4 D. Despite Achieving “Champion’s Cup” Award for work on Samsung Project, Seastrunk Receives Lower Performance Ratings for 2015 Performance Review ........ 5 E. Seastrunk Assigned More White Papers than Other Project Managers and Caucasian Project Managers Were Treated More Favorably ......................................................... 8 F. Seastrunk Suspended for Referring to a Co-Worker by his Last Name and asks to be Transferred to Another Group at Entegris .................................................................. 11 G. After Seastrunk is Suspended in February 2016, he Continues to Perform Significant Work for Entegris but is faced with Criticism and Skepticism .................................. 15 H. Seastrunk is Requested to Provide a Transcript Relating to his Master’s Degree in Engineering and Does so, but in 2016 Gonzales Begins Expressing Continual Doubt about Whether Seastrunk has such a Degree .................................................................. ..................................................................................................................................... 16 I. After Seastrunk Requests to Leave the New Product Development Group, his is placed on Performance Improvement Plan ................................................................. 17 J. After being Placed on a PIP, Seastrunk Complains about Race Discrimination ........ 19 K. Seastrunk is Terminated about one Month after Imposition of PIP ........................... 23 II. SUMMARY JUDGMENT STANDARDS ........................................................................ 25 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 2 of 58 PageID 1513 iii | P a g e III. ARGUMENT AND AUTHORITIES ................................................................................ 25 1. Seastrunk Establishes a Prima Facie Case of Race Discrimination ................................ 25 A. Seastrunk Establishes a Prima Facie Case of Discrimination in Regard to Termination . 26 B. Seastrunk Establishes a Prima Facie Case of Retaliation Discrimination ........................ 28 1. Seastrunk Raises Genuine Issues of Material Fact tht he Opposed Discrimination .. 29 2. Seastrunk Raises Genuine Issues of Fact that there is a Causal Link Between his Opposition to Discrimination and his Termination ......................................................... 32 C. Seastrunk Establishes Pretext for Race Discrimination and Retaliation ......................... 35 1. Evidence of Good Job Performance of Seastrunk Evidences Pretext........................ 36 2. Failure to Follow Established Procedures and to have Documentation of Alleged Bad Job Performance Evidences Pretext ............................................................................... 39 3. Seastrunk Demonstrates Pretext Through Lack of Credibility of Gonzales’ Assertions of Seastrunk’s Alleged Poor Job Performance and Evidence of Discriminatory Bias .. 42 4. Close Timing of Seastrunk’s Complaints and his Termination Evidence Pretext ..... 46 5. Seastrunk Establishes Pretext Through Evidence of Inadequate Investigation of Seastrunk’s Complaints ................................................................................................. 46 6. Seastrunk Establishes Pretext by Evidence of Differential Treatment of other Project Managers ........................................................................................................................ 48 7. The “Same Actor Inference” Does not Support Entegris’ Assertion that Seastrunk Cannot Establish Pretext in Regard to Race Discrimination or Retaliation .................. 48 8. Assertions of Business Judgment do not Insulate Entegris from Discrimination and Retaliation Claims .......................................................................................................... 50 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 3 of 58 PageID 1514 iv | P a g e IV. CONCLUSION .................................................................................................................... 50 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 4 of 58 PageID 1515 v | P a g e TABLE OF AUTHORITIES Page(s) Cases Al-Habash v. Raytheon Co., 2016 U.S. Dist. LEXIS 1469325 (E.D. Tex. Oct. 24, 2016) ...................................................49 Anderson v. Liberty Lobby, Inc., 77 U.S. 242 (1986) ...................................................................................................................24 Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292 (5th Cir. 1994) .....................................................................................................27 Brown v. Cottonwood Fin. Tex, 2018 U.S. Dist. LEXIS 37973 (E.D. Tex. March 8, 2018) ................................................25, 26 Clark County School District v. Breeden, 532 U.S. 268 (2001) .................................................................................................................28 Coburn v Rockwell Automation, Inc., 2007 U.S. App. LEXIS 16632 (6th Cir. 2007) ........................................................................39 DeAnda v. St. Joseph’s Hospital, 671 F.2d 850 (5th Cir. 1982) ...................................................................................................28 EEOC v. J.M. Huber Corp., 927 F.2d 1322 (5th Cir. 1991) ...........................................................................................27, 34 Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001) .............................................................................................34, 39 Eyob v. Mitsubishi Catepillar Forklift America, Inc., 2017 U.S. Dist. LEXIS 118574 (S.D. Tex. July 28, 2017) ......................................................48 Flaig v. Hi-Line Elec. Co., 2007 U.S. Dist. LEXIS 102539 (N.D. Tex. Sep. 28, 2007) .....................................................30 Garret v. Cornstar, 1999 U.S. Dist. LEXIS 9361 (N.D. Tex. May 26, 1999) ........................................................32 Garrison v. Tex. S. Univ., 2012 U.S. Dist. LEXIS 15912 (S.D. Tex. Oct. 23, 2012) ........................................................47 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 5 of 58 PageID 1516 vi | P a g e Glasmire v. Public Storage, 2013 U.S. Dist. LEXIS 64794 (N.D. Tex. May 7, 2013) ..................................................36, 47 Haire v. Bd. Of Supervisors of La. State Univ., 719 F. 3d 356 (5th Cir. 2013) ..................................................................................................33 Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986) ...................................................................................................27 Johnson v. Enjoy the City, Inc., 2010 U.S. Dist. LEXIS 21920 (N.D. Tex. March 10, 2010) ...................................................36 Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1986) ...................................................................................................27 Jones v. R.G. Barry Corp., 2017 U.S. Dist. LEXIS 39161 (W.D. Tex. March 17, 2017) ..................................................49 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011) .......................................................................................................29, 30 Laxton v. Gap, Inc., 333 F. 3d 572 (5th Cir. 2003) ............................................................................................41, 49 Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996) .....................................................................................................32 Machinchick v. PB Power, Inc., 398 F. 3d 345 (5th Cir. 2005) ..................................................................................................38 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1983) .................................................................................................................34 Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30 (1st Cir. 2001) ......................................................................................................39 Menefee v. McCaw Celluar Commc’n of Tex., 2003 Tex. App. LEXIS 2456 (Tex. Ap. – Dallas March 24, 2003, no p35.)(mem. op.)........................................................................................................................48 Mickelson v. New York Life Ins. Co., 460 F.3d 1304 (10th Cir. 2006) ...............................................................................................39 Miller v. Raytheon, 716 F. 3d 138 (5th Cir. 2013) ..................................................................................................47 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 6 of 58 PageID 1517 vii | P a g e Pacheco v. New Life Bakery, Inc., 187 F. 3d 1055 (9th Cir. 1999) ................................................................................................45 Paulissen v. MEI Technologies, Inc., 942 F. Supp. 2d 658 (S.D. Tex. 2013) .....................................................................................36 Polanco v. City of Austin, 78 F. 3d 968 (5th Cir. 1996) ....................................................................................................45 Ramirez v. Landry’s Seafood, 280 F. 3d 576 (5th Cir. 2002) ..................................................................................................46 Ray v. Iuka Special Mun. Separate School Dist., 51 F. 3d 1246 (5th Cir. 1996) ..................................................................................................41 Reed v Buckeye Fire Equipment, 2007 U.S. App. LEXIS 18120 (4th Cir. 2007) ........................................................................39 Reeves v. Sanderson Plumbing Products., Inc., 530 U.S. 133 (2000) ...........................................................................................................34, 35 Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc) ...............................................................................35, 39 Richard v. Cingular Wireless LLC, 233 Fed.App’x 334 (5th Cir. 2007) .........................................................................................32 Richardson v. Prairie Opportunity, 470 Fed. App’x 282 (5th Cir. 2012) ........................................................................................32 Russell v. McKinney Hospital Venture, 235 F.3d 219 (5th Cir. 2000) ...................................................................................................38 Shackelford v. Deloitte & Touche, L.L.P., 190 F.3d 398 (5th Cir. 1999) .............................................................................................32, 45 Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992) .....................................................................................................27 Sociedad Espanola De Auxilio v. NLRB, 414 F.3d 158 (1st Cir. 2005) ....................................................................................................45 Spear v. Patterson UTI Drilling Co., 337 Fed. Appx. 416 (5th Cir. July 16, 2009) ...........................................................................49 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) ...........................................................................................................35, 42 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 7 of 58 PageID 1518 viii | P a g e Swanson v. Gen. Servs. Admin., 110 F. 3d 1180 (5th Cir. 1997), cert. denied, 529 U.S. 948 (1998) .........................................32 Tyler v. Union Oil Co. of Calif., 304 F.3d 379 (5th Cir. 2002) ...................................................................................................39 Uffelman v. Lone Star Steel Co., 863 F.2d 404 (5th Cir. 1989) ...................................................................................................47 Umoren v. Plano L.S.D. Bd. of Trs., 2011 U.S. District LEXIS 26299 (E.D. Tex. March 14, 2011) ...............................................31 United States v. Diebold, 369 U.S. 654 (1962) .................................................................................................................24 Watkins v. Texas Dept. of Criminal Justice, 269 Fed. Appx. 457 (5th Cir. 2008) .........................................................................................31 Webster v. Bass Enters. Prod., 192 F. Supp. 2d 685 (N.D. Tex. 2002) ....................................................................................28 Williams v. Time Warner Operation, Inc., 98 F.3d 179 (5th Cir. 1996) .....................................................................................................36 Woodhouse v. Magnolia Hosp., 92 F. 3d 248 (5th Cir. 1996) ....................................................................................................38 Yazdiana v. ConMed Endoscopic Techs, Inc., 793 F. 3d 634 (6th Cir. 2015) ..................................................................................................30 Statutes 42 U.S.C. § 1981 ............................................................................................................................24 42 U.S.C. § 2000e-3(a) ..................................................................................................................28 FLSA ..............................................................................................................................................29 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 8 of 58 PageID 1519 1 | P a g e I. FACTS IN SUPPORT OF SUMMARY JUDGMENT RESPONSE. A. Seastrunk Commences Work at Entegris in 2013 and Receives an “Effective” Performance Review for 2013. 1. Seastrunk is an African American male and commenced employment at Entegris on November 18, 2013. (App. 4, 9, 335). Seastrunk worked at the POCO Graphite facility in Decatur, Texas, which had been purchased by Entegris in the fall of 2008. (App. 12, 170, 174). At the time of Seastrunk’s hire, Entegris had approximately 270-275 employees at that facility and 4,800 worldwide. (App. 173-174, 176). Of the employees at the Decatur facility, only six were Black. (App. 262). Seastrunk was the only Black employee at the facility with a Manager title, but he did not manage any employees directly. (App. 518). 2. Seastrunk was hired as a Project Manager in the new product development group, by Manny Gonzales (“Gonzales”), Hispanic, Manager of New Product Development, and he reported to Gonzales. (App. 3, 176, 46, 62, 156, 277). Seastrunk reported to Gonzales throughout his employment at Entegris. (App. 7). Gonzales reported to Scott Sirignano (“Sirignano”), Vice President of Specialty Materials. (App. 175, 48, 270). Sirignano reported to Todd Edmund, then Senior Vice President, and now Chief Operating Officer for Entegris, located in Billerica, Massachusetts. (App. 175, 272). 3. The New Product Development group brings new products and strategic opportunities to market and manages the technology pipeline and portfolio of existing products. (App. 48-49, 273). Entegris manufactures the most expensive graphite in the world. (App. 61, App. 273). The only Project Managers at the POCO facility worked under Gonzales. (App. 53). As Project Manager Seastrunk was responsible for defining the scope of work, keeping timelines and milestones on projects, and validating new products through testing and verification of Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 9 of 58 PageID 1520 2 | P a g e performance. (App 4, 57, 359). In addition to Seastrunk, Greg Scherer (“Scherer”) and Rob Fothergill (“Fothergill”) were Project Managers reporting to Gonzales. (App. 50, 332). 4. At Entegris, performance reviews are based on the calendar year and given in the early part of the following year. (App. 190, 64). Gonzales was responsible for conducting performance reviews for his direct reports and Sirignano signed off on them as a second level manager. (App. 64-65, 76-77). If an employee had any job performance issues, Gonzales documented those in the performance review. (App. 65). Performance review ratings for Seastrunk would have been given based on input of Sirignano as well as other team members. (App. 81). 5. Entegris ratings on performance reviews were “needs improvement, “effective,” and “highly effective.” (App. 2). Seastrunk received a performance review for 2013 with an overall “Effective” rating, and without any sub-category “needs improvement” scores. (App. 10, 365, 78, 290, 291). Gonzales noted that Seastrunk had “started off very strong” as he had really taken on training, understanding and learning the materials, and learning the company culture. (App. 77, 365 B. Seastrunk is Assigned the Pivotal Samsung Project in 2014 and Receives an “Effective” Overall Rating on his 2014 Performance Review. 6. After being hired, Seastrunk worked on some glass handling projects, a Pratt & Whitney project, and a piston ring project. (App. 70). Around December 2014, Seastrunk was assigned by Gonzales to the Samsung project and he worked on that project until his termination. (App. 70, 45, 278). At the time Seastrunk was assigned this project at the end of 2014, it was just starting in the new product development phase. (App. 101, 304). The Samsung team had nine other people, mostly directors, including Seastrunk. (App. 237, 198, 104). Additionally, other individuals in manufacturing roles in the Decatur facility, performed work for this project. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 10 of 58 PageID 1521 3 | P a g e (App. 73). The other Samsung team members reported to senior managers other than Gonzales. (App. 198, 71). The Samsung project was the biggest new product development product at the Decatur facility. (App. 84). Seastrunk was the only Project Manager overseeing that project. (App. 74, 182). The Samsung project was by far the largest focus of Seastunk’s time while he worked at Entegris, although he also handled smaller projects. (App. 519). Throughout the time that he worked on the Samsung project he had the same responsibilities and duties. (App. 519). 7. Gonzales did not review Seastrunk’s performance on the Samsung project on a day to day basis and only attended a weekly meeting when he was not traveling. (App. 71, 75). Seastrunk conducted the weekly meetings. (App. 75). Sirignano also was not involved in day to day interaction with Gonzales, and only occasionally attended weekly approximate one-hour team meetings which Seastrunk coordinated. (App. 273, 281-282). 8. On his 2014 performance review, given by Gonzales and approved by Sirignano, Seastrunk received an overall “Effective” rating, including a number of sub-category ratings of “Highly Effective.” (App. 10-12, 366, 369-370; 292-293). Seastrunk was lauded for as Highly Effective regarding numerous “achievement” sub-categories, including in that he “showed a solid understanding of BU procedures and processes.” (App. 82-83, 366, 293). Seastrunk was giving a “highly effective” rating in terms of communication, and the review indicated Seastrunk had created and managed numerous projects and brought his “high-level” thought process to each project, and “provides excellent updates and communications” across the business unit. (App. 85- 77, 367, 369). It was further noted that Seastrunk is a “respected colleague throughout the plant and that he treats everyone with dignity and respect, and was becoming a leader within the group. (App. 368-569). 9. The 2014 review also noted Seastrunk created a template for white papers, which Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 11 of 58 PageID 1522 4 | P a g e was a format that could encompass both external and internal facing white papers. (App. 86. 366). The fact a new format for white papers in 2015 had been developed was noted favorably in Gonzales’ review for 2015. (App. 326). Additionally, it referenced Seastrunk as a “well rounded key contributor and a critical part of the success to date of the Samsung project.” (App. 370, 88, 297) (emphasis added). Seastrunk regularly interacted with employees of Samsung when he was on the project, including in that he had interactions with the Director of Finance and other managers. (App. 519). Gonzales did not receive any complaints from team members, co-workers, or customers about the job performance of Seastrunk. (App. 87-88, 368). Seastrunk received no “needs improvement” ratings on any sub-category on the 2014 review. (App. 82, 366). 10. At Entegris, merit increases depend at least in part on the score on performance evaluations, and if an employee receives a meets expectations performance review they are eligible for a merit increase. (App. 75, 78). Gonzales recommends merit increases, which are approved by HR and App. 311). Seastrunk received a merit increase in March 2015 which was approved by Gonzales. (App. 264-265, 54, 435, 438). C. Seastrunk Performs Very Successfully in 2015 as Demonstrated by Achievement of “Champion’s Cup” Award for the Samsung Project. 11. Each quarter Entegris solicited submissions for an offensive playmaker award and Samsung project received the offensive playmaker award the first quarter of 2015 after being nominated by Sirignano. (App. 89-90, 298-299). Each year Entegris awards the Champion’s Cup award, which an annual award is given to one team in Entegris worldwide. (App. 196-197). The executive leadership team makes the final determination of the winner of the Champion’s Cup from the eight teams that have won the quarterly playmaker award. (App. 196, 89, 299-300). The Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 12 of 58 PageID 1523 5 | P a g e Champion’s Cup is the most prestigious award that can be granted in the company. (App. 104, 362). 12. In early 2016, the Samsung Project won the Champion’s Cup award, which was based on sales of roughly 21 million dollars, with potential ongoing revenue of 20 million. (App. 199, 103).1 Seastrunk was notified on March 7, 2016, that his team was being awarded the Champion’s Cup award. (App. 37, 362). Team members who won the Champion’s Cup were supposed to get 15,000 RSU shares of Entegris stock and a pro rata share of $25,000 paid to the team. (App. 191, 362). Seastrunk did not receive his RSU shares at the time of his termination. (App. 520). D. Despite Achieving “Champion’s Cup” Award for work on Samsung Project, Seastrunk Receives Lower Performance Ratings for 2015 Performance Review. 13. In 2015, in addition to the fact Seastrunk was the Project Manager on the most visible project at POCO, Seastrunk worked on a Pratt project, a piston ring project, and a couple of other projects. (App. 108). Gonzales can identify only two employees who he claims made complaints about Seastrunk in 2015. (App. 91-92, 100). He asserts Ronnie Ramsey and Pat Lloyd allegedly complained that Seastrunk didn’t understand processes for working with some specific materials. (App. 91). No one from Samsung or any other customer of Entegris made complaints about Seastrunk. (App. 102-103). From the start of his employment through February 2016, 1 Entegris had started to capture revenue from the Samsung project by the end of 2015. (App. 101). The significance of the scope of this achievement is shown by the fact Sirignano was lauded in his 2015 performance review due to the Samsung Glass Forming project exceeding plan and ending at $21 million, as well as for winning follow on programs. (App. 497). In his 2015 performance review, Gonzales received a 4 out of 5 star rating for achieving goals relating to the Samsung glass forming [project. (App. 470). Sirignano noted that Gonzales had allocated a project manager to the Samsung project who coordinated activity and there was “outstanding teamwork” in regard to the project. (App. 464-465). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 13 of 58 PageID 1524 6 | P a g e Seastrunk was not advised that his job performance was deficient and he did not receive any documented verbal or written disciplinary actions during his employment until he was put on a Performance Improvement Plan (“PIP”) in March of 2016. (App. 518). Gonzales did not communicate to Seastrunk that either Mr. Ramsey or Mr. Lloyd made any complaints about him not understanding processes for working with certain materials. (App. 518). 14. Gonzales claims that in the spring of 2015 he and Sirignano decided to limit Seastrunk’s work on the Samsung project by taking away Seastrunk’s overall management and his guiding of the team through defining tasks and timeframes for the project. (App. 92-94). Gonzales asserts that Seastrunk’s job duties were changed to just supporting the team by establishing meetings and tracking action items and that he advised Seastrunk of this change. (App. 92-94). However, the alleged narrowing of the scope of Seastrunk’s job was never discussed with HR, documented in any way, and did not result in any written disciplinary action. (App. 94-95, 97). Although Gonzales characterized this alleged taking away of Seastrunk’s job responsibilities in the spring of 2015 as a verbal coaching disciplinary action under Entegris discipline policy, he failed to document that in the any verbal coaching form that the company has for such discipline. (App. 360, 96-97). Seastrunk denies that at any time in 2015 Gonzales took away or changed his job responsibilities in any way, and he continued to have the same responsibilities and duties throughout the time he worked on the project. (App. 519). Gonzales did not cut back on the scope of Seastrunk’s job duties on the Samsung project and did not indicate to Seastrunk that he was doing so. (App. 519). The 2015 performance review of Seastrunk does not state that Seastrunk’s job duties were changed or taken away in any way in 2015. (App. 367, 130). 15. The goal of the Entegris disciplinary policy is to document performance issues and give notice to the employee about performance issues. (App. 98). But at no time in 2015 did Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 14 of 58 PageID 1525 7 | P a g e Gonzales document any verbal disciplinary coaching or provide Seastrunk any written disciplinary action of any kind. (App. 98). To the extent he did “coaching, mentoring, or guidance” of Seastrunk, he admits that it was consistent with that he does for all employees. (App. 98-99). 16. Entegris changed the performance review ratings in 2015 to a new system on which employees are rating on a star system. (App. 12, 204, 105-106). In that system, one star indicates “improvement required”; two stars indicates “capable” but there may be some extenuating circumstances; three stars indicates “successful”; and four stars indicates exceptional performance. (App. 204, 12, 306-307). On February 10, 2016, Seastrunk received sub-category ratings which included one and two stars, and his review was less positive than in previous years although his overall score was “capable.” (App. 12, 378-379, App. 108). 17. In 2015 or early 2016, another employee, Mr. Harrison, told Seastrunk to watch himself because he had a target on his back. (App. 36). Carla Schneider (“Schneider”) is the HR director at the Decatur, Texas facility where Seastrunk worked. (App. 170-172). Gonzales did Seastrunk’s 2015 review, on February 10, 2016, with approval by Sirignano and without any oversight by Schneider. (App. 372, 200). Seastrunk was criticized in the review for matters not previously even brought to his attention. (App. 13). The review, however, did note that the Samsung glass forming project is perhaps the “most critical and high-visibility project” at the company and that Seastrunk was an important part of this team. (App. 374). Gonzales also acknowledged that Seastrunk was one of the most experienced members of his team. (App. 112, 379). 18. By the time of the 2015 review, the Samsung project had already result in a contract worth over twenty million dollars. (App. 14). Indeed, in Seastrunk’s 2015 review, Gonzales stated Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 15 of 58 PageID 1526 8 | P a g e that Samsung was the most critical and high visibility project at Entegris, due to the large revenue being generated on the project. (App. 110-111, 374, 308). 19. Gonzales gave Seastrunk an “improvement needed” rating regarding project management goals, despite the Samsung project was up to date in terms of documentation. (App. 14, 373). In 2015, Entegris had transitioned from 12M to Accolade software (App. 109). Seastrunk was the only Project Manager who had successfully transitioned his project information into Accolade and had his work approved by management. (App. 15). Sirignano admits Gonzales never indicated Seastrunk had any issues learning to use Accolade. (App. 308). 20. Seastrunk perceived the 2015 review to be racially discriminatory because he had written numerous white papers and was Project Manager for the lucrative Samsung project, and he was getting compliments from others in the company, yet the review was not very positive. (App. 18-19). Due to his review score, Seastrunk did not get a merit increase in 2016 (App. 265, 438), as lower performance review scores can impact the amount of merit increase an employee is entitled to. (App. 265, 107). E. GonzalesAssigned More White Papers to Seastrunk than Other Project Managers and Caucasian Project Managers Were Treated More Favorably. 21. There were two other Project Managers at POCO at the time Seastrunk commenced work at Entegris: Greg Scherer (“Scherer”) and Rob Fothergill (“Fothergill”). (App. 4, 177-178). Scherer and Fothergill are Caucasian. (App. 177-178, 336). Besides Seastrunk, all Project Managers reporting to Gonzales were Caucasian. (App. 180). Fothergill and Scherer were treated more preferentially than Seastrunk, as they had significant errors without being terminated. (App. 36). 22. Fothergill was Project Manager on the LED project and during testing the product Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 16 of 58 PageID 1527 9 | P a g e failed in the testing process. (App. 280-281, App. 5). During the LED project some test equipment was damaged when the material did not perform at a cost of $53,000. (App. 55, 5). There were two parts to the LED project, Veeco and Aixtron; Veeco was shut down because the product was insufficient to enter the market and Aixtron project was validated but it was too expensive and has not had commercial success.2 (App. 279-280, 531-532, 497). In 2014, the company goal to achieve $500,000 in LED sales was not met. (App. 322-323, 458).3 23. Fothergill was transferred out of a new project development Project Manager role after problems on the LED project. (App. 6-7). Fothergill was transferred into a position in EDM applications engineering position, no longer reporting to Gonzales. (App. 45, 66, 179, 206-261, 431, 54, 321). The stated reason for the move was to put him in a role and development path “that may best suit his abilities.” (App. 432). 24. A white paper is an authoritative paper on a particular subject that is written at the conclusion of the project, which states what the value proposition or output of the project was. (App. 16, 293-294).4 At any given time ten to twenty projects were ongoing in the new product development group. (App. 296). Seastrunk was assigned the writing of numerous white papers. (App. 16). White papers vary in scope and length depending on the size of the project. (App. 69). 2 Gonzales claimed that the LED project was completed successfully because the new product development group got validation and it was handed off to the commercial team (App. 56), but as noted part of the project failed and even the part validated resulted in no revenue. 3 For 2015, Gonzales was given only 2 stars for “Reducing time to Market to 150 days” with it being noted this “goal as somewhat deferred due to not having the volume and consistency in the LED Demand.” (App. 468-469). 4 Entegris has external facing white papers which discuss tests run on products, performance, and validation of material, which are handed off to sales as a sales tool. (App. 67-68). Entegris also had internal white papers that related to trade secret internal processes. (App. 67-68). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 17 of 58 PageID 1528 10 | P a g e 25. Kenny Jordan (“Jordan”), African American, is the only other Black employee under Gonzales, and he had been transferred to Gonzales’ group rather than being hired by him. (App. 242-243, 64, 339). Jordan was a Design Specialist, who primarily converts customer drawings into manufacturable drawings. (App. 57). Design specialists are generally mechanical engineers and projects managers would possibly also be able to perform in this position. (App. 58). To Seastrunk’s observation only he and Jordan appeared to be assigned white papers (App. 18, 36), because Scherer was not part of the group when they had meetings about the status of white papers nor was he included on electronic meeting notices relating to meetings about the white papers. (App. 17, 520). Indeed, Scherer’s 2014 performance review indicated he needed improvement regarding the writing of white papers, and he was supposed to develop a plan to enable himself to deliver technical white papers for projects. (App. 466). 26. Failure to write or finish white papers was an ongoing issue for the new product development group since 2014. (App. 294).5 At the end of 2015, Gonzales told Seastrunk and Jordan they he would not get additional pay in the form of a merit increase if they did not write additional white papers. (App. 16-17). At that time both Seastrunk and Jordan had already written three white papers in 2015. (App. 17). Yet, despite the fact Seastrunk had written white papers as 5 Gonzales himself received overall scores of “needs improvement” on his performance reviews since Seastrunk became employed. (App. 66). He received “needs improvement” scores in multiple years by his supervisor Sirignano relating to creation of white papers. (App. 66-67; S App. 325; App. 485). Specifically, he was unable to meet the goal for completion of a certain number of white papers per year and this issue continued throughout 2016 and 2017 after Seastrunk was terminated. (App. 67; App. 327- 329; App. 479; App. 487). In his 2016 review, Gonzales received an “improvement needed” in regard to matters relating to white papers, noting that “[o]n the subject of white papers, I failed his task and was unable to motivate the team to complete the task.” (App. 486). In 2017, Gonzales again got an “improvement required” in this category, and he noted the “NPD team did not complete a white paper for every demonstrator completed.” App. 488). In this review it is noted that this goal would be redefined in 2018 as “the Project Management team is not subject matter experts” and have struggled with providing technical details of the validation process results. (App. 488). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 18 of 58 PageID 1529 11 | P a g e requested, he was scored poorly in his performance review. (App. 17). Gonzales admits that some employees were assigned more white papers than others. (App. 69). Gonzales never told Sirignano that Seastrunk was having any issue with the completion of white papers. (App. 295). 27. During the time he was Project Manager, Seastrunk also was assigned the medical shoulder ball project, which Scherer had previously unsuccessfully managed as Project Manager, and Seastrunk was able to successfully complete that project in a short period of time. (App. 6, 13, 519). Gonzales allowed Scherer to travel related to his project, even though the project was not making money while Seastrunk was denied the opportunity to travel. (App. 22-23). In 2015, Seastrunk was also excluded from a dinner with Samsung even though he was the Project Manager. (App. 19). 28. For 2014, Scherer received an overall effective rating. (App. 323, 468), which was the same rating as Seastrunk. He also received a “needs improvement” rating in a sub-category or completing technical sales tools for every project. (App. 466). Gonzales noted in 2015 he needed to learn to understand what it takes to create a white paper and that he therefore was not meeting this goal. (App. 323-324). F. Seastrunk Suspended for Referring to a Co-Worker by his Last Name and asks to be Transferred to Another Group at Entegris. 29. There were several employees named Patrick at Entegris on the Samsung team. (App. 19, 113). On February 17, 2016, there was a string of communications between Seastrunk and two of the individuals named Patrick; Patrick Coyle and Patrick Lloyd. (App. 19, 380, 224). Seastrunk, in responding to an email back to him, prefaced his email with “Coyle” instead of Patrick because Patrick Lloyd was also on the email and he wanted to make sure there was not confusion that he was directing the message to Patrick Lloyd. (App. 20, 381). In the email Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 19 of 58 PageID 1530 12 | P a g e Seastrunk directed Coyle not to lose some orders and to not separate them, which was within his role of Project Manager as he had responsibility to make sure that produce gets shipped on time and he was concerned about the order being lost if it was separated. (App. 21, 381). 30. Seastrunk did not have any concerns about just using the last name because other employees in the workplace, including Schneider and manager Mr. Ramsey, also sometimes referred to the two Patricks by their last names and doing so was not out of the ordinary. (App. 20, 521). Schneider and others sometimes referred to Coyle by his last name when talking to Gonzales. (App. 113-114). Moreover, it was common that Patrick Coyle was called by his last name by other employees. (App. 23). 31. Gonzales accused Seastrunk of being unprofessional in using Coyle’s last name and giving Coyle an “ultimatum.” (App. 21, 380, 117). Seastrunk was perplexed by the criticism as it was his responsibility to ensure that the product was shipped and the customer received both pieces. (App. 21, 380). 32. Gonzales communicated with Schneider that he allegedly felt the comment of Seastrunk was inappropriate. (App. 207). Schneider testified that she directed Gonzales to ask Patrick Lloyd and Patrick Coyle if they were offended and Gonzales advised her Coyle was. (App. 211). This is contradictory to Gonzales’ testimony, which was that both Patrick Coyle and Patrick Lloyd came to him on their own and said they were offended, and that he was not directed to talk to them to see if they were offended. (App. 113-116). Schneider cannot recall if she told Gonzales that she felt the comment was inappropriate and she agrees that reasonable people could differ about whether calling someone by their last name is offensive. (App. 209-210). Schneider was told by Gonzales that Coyle had requested an apology from Seastrunk. (App. 212). Coyle never Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 20 of 58 PageID 1531 13 | P a g e came to Seastrunk and indicated he was offended or otherwise say he was offended in response to the email (App. 21) and Seastrunk was never requested to apologize to Coyle. (App. 520). 33. After Gonzales accused him of being unprofessional, Seastrunk emailed Gonzales and Schneider that he would like to leave the group. (App. 22, 23, 386, 309, 213). Seastrunk felt Gonzales was being hostile and combative to him due to his race and he felt it would be best if he could transfer to another group. (App. 22). Upon receipt of the email, Gonzales advised Schneider that he thought Seastrunk wanted to terminate his employment and said he would come in and sign necessary paperwork relating to the termination. (App. 213-214, 386, 531-532). At that time Gonzales did not know for sure what other positions might be open at the company. (App. 119- 120). Seastrunk, however, immediately clarified that he was not quitting or resigning. (App. 214, 386). 34. Within two minutes of Seastrunk sending the email requesting a transfer, Gonzales asked Seastrunk “will you do it today?” (App. 387). Schneider never talked with Gonzales or Seastrunk about why Seastrunk was requesting a transfer. (App. 215-216, 520). At the time this request occurred, Seastrunk had not had any written disciplinary actions, and Schneider is unaware of him having verbal coaching that was documented in writing, which if it occurred, would have been forwarded to her. (App. 220-221). Seastrunk subsequently sent a resume to Schneider as he had seen another Project Manager position at a different location come open; he advised her he felt he was suited to positions in business development and new product development. (App. 24). 35. That day Seastrunk requested a transfer he also requested a meeting with Sirignano. (App. 25, 310, 385). In that meeting he indicated he did not want to leave the company hoped to move out of Gonzales’ group. (App. 25, 289, 310-311). Sirignano told Gonzales and Schneider that Seastrunk felt like he was being “set up to fail.” (App. 25, 217, 122, 387, 520). Sirignano also Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 21 of 58 PageID 1532 14 | P a g e told them that he tried to make Seastrunk aware of the “ramifications” of asking to leave Gonzales’ group. (App. 25, 387). Seastrunk denies Sirignano discussed anything about the “ramifications” of him asking to leave the group. (App. 25-26). This was the only one-on-one meeting Sirignano ever held with Gonzales. (App. 276). 36. The next day Gonzales discussed what it would take to “get back on the same page” and meet expectations with Seastrunk, and at the conclusion of that meeting Gonzales sent Seastrunk home and told him not to come to work the next day. (App. 26, 391, 123).6 Gonzales confirmed to Sirignano that he had sent Seastrunk home to “think about what it will take go get my trust back and how he will get on the same page as me.” (App. 391, 127-128). Schneider admits that she does not think an employee requesting a transfer to a different group constitutes a breach of trust. (App. 226). Gonzales did not ask Seastrunk why he wanted to leave his group or attempt to discuss with him any issues he was having being in the group. (App. 120-121). At the time Seastrunk was sent home and told not to come back to work for a couple of days, he had never received any written disciplinary action. (App. 126). 37. On February 22, 2016, just a few days after Seastrunk asked to leave Gonzales’ group, Gonzales emailed with Sirignano that he would not immediately put Seastrunk on a PIP, but his gut feeling was that he would probably have to go on one. (App. 223-225, 391). This was the first time the issue of putting Seastrunk on a PIP had come up. (App. 225-226). At that point Gonzales had not given Seastrunk any documented verbal coaching or written disciplinary actions at any point in his employment. (App. 131). 6 Suspension at Entegris can be with or without pay. (App. 344; App. 125-126). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 22 of 58 PageID 1533 15 | P a g e 38. Gonzales then met with Seastrunk that day and told him to work harder to meet expectations and Seastrunk agreed to do his best, and Gonzales followed up with some specific performance expectations. (App. 27-28). Those objectives included not sending out anything to product managers or other team members without first running them by Gonzales, which Gonzales had never previously asked him to do. (App. 129). 39. Following his initial request for a transfer, on February 18, 2016, Seastrunk followed up with Schneider by sending her his resume but she can’t remember if she made any effort to provide it to anyone in the organization. (App. 218-219, 388). 40. Just a little over two weeks after Gonzales indicated he would not immediately place Seastrunk on a PIP, on March 9, 2016, Gonzales indicated he wanted to put Seastrunk on a PIP and attached a draft PIP. (App. 227, 392). Schneider can’t recall if she asked Gonzales what had occurred in that two week period to justify a PIP. (App. 227-228). G. After Seastrunk is Suspended in February 2016, he Continues to Perform Significant Work for Entegris but is Faced with Criticism and Skepticism. 41. On February 29, 2016, Seastrunk emailed supervisors about a new product development idea relating to wrap-around windshields. (App. 28-29, 455). Sirignano and Gonzales did not appear to be willing to investigate the idea, although the company had done similar large three-piece mold systems, and it appeared to Seastrunk that his suggestion was being rejected due to racial bias. (App. 29-30). Subsequent submissions by Seastrunk regarding various potential ideas for projects by Seastrunk were rejected with harsh criticism and/or condescension. (App. 440-447, 448-449, 450-454). H. Seastrunk is Requested to Provide a Transcript Relating to his Masters Degree in Engineering and Does so but in 2016 Gonzales Begins Expressing Continual Doubt about Whether Seastrunk has such a Degree. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 23 of 58 PageID 1534 16 | P a g e 42. The resume Seastrunk had submitted when he applied at the company had not listed a master’s degree in engineering. (App. 521). Seastrunk did bring up in the interview process that he had a master’s degree. (App. 63).7 At the time an offer of employment was made to Seastrunk, Schneider requested a transcript from Seastrunk, which he provided. (App. 187-188, 38, 355-358). 43. After Seastrunk requested the transfer out of Gonzales group in February 2016, on February 18, 2016, he provided Schneider a resume and reiterated he wanted to look for a position in another group, and this resume reflected he had a master’s degree in mechanical engineering. (App. 219). After Seastrunk submitted this resume, Gonzales questioned whether Seastrunk had a master’s degree in engineering, saying he had “serious doubts” Seastrunk had such a degree. (App. 146-147, 153, 410). Subsequently, Gonzales continually made references in documents to Seastrunk not meeting expectations that would be expected from an engineer with a master’s degree. (App. 439, 148, 450). Schneider further referenced in an email seeking review of the termination decision, a “shared concern of education.” (App. 417, 251). Schneider denies they questioned whether he had a degree (App. 251-252), but after a meeting with Seastrunk regarding the PIP, she indicates in an email following the meeting they “also addressed concern of master’s in engineering, and he did not comment” (App. 417, 255-256), although Schneider now claims she cannot recall if she addressed that with Seastrunk or questioned it to anyone else. (App. 256-257). I. After Seastrunk Requests to Leave the New Product Development Group, he is Placed on a Performance Improvement Plan. 44. Entegris has a progressive discipline policy that provides for corrective action which can include verbal coaching, which may or may not be formally documented. (App. 256- 7 The job description for Project Manager at Entegris does not require a master’s degree as a qualification for the position. (App. 359). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 24 of 58 PageID 1535 17 | P a g e 257, 343-344). Entegris has a form on which to document verbal coaching. (App. 360). Entegris also has a form for written disciplinary actions. (App. 360). Finally, Entegris policy provides for final written warnings. (App. 360). All such disciplinary actions, if given, are to be forwarded to HR and put in the employee personnel file. (App. 195). 45. Entegris policy about documenting performance issues is important to provide employees of notice of potential employment issues and managers are expected to document all disciplinary action about verbal/coaching. (App. 194). Seastrunk did not receive any written disciplinary action before he was put on a PIP. (App. 194). No co-workers of Seastrunk made any complaints about him to HR at any time, nor did any customers or clients. (App. 196, 301). Schneider was aware of allegations of alleged poor performance by Seastrunk only through Gonzales (App. 196), and she did not become aware of any alleged performance issues of Seastrunk until he was put on the PIP. (App. 201-203, 205). Schneider agrees that if an employee is being put on a PIP in her role as HR director it would be important to look back and see if their performance reviews reflect performance consistent with the PIP, but she cannot recall if she even looked at Seastrunk’s prior reviews before approving the PIP. (App. 205). She also cannot recall if she discussed with Gonzales whether a PIP was appropriate given that Seastrunk had not received prior written or verbal counseling. (App. 222). 46. Sirignano contends that Rick Slimp, a manager over the glass-forming group, complained to him one time after February 29, 2015, when Seastrunk came up with an idea regarding possible use of glass relating to windshields, that the idea proposed by Seastrunk was not feasible. (App. 283, 284-285). Sirignano felt that Seastrunk should have vetted this idea with one manager before proposing it to the entire group. (App. 286). He also said Mr. Scoggins told him Seastrunk had not been able to engineer a solution to a pitting problem with a material; Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 25 of 58 PageID 1536 18 | P a g e however, a way to reduce this failure rate was not found until late 2016 or early 2017 after Entegris developed a team to come up with optimized machining criteria. (App. 286-287). Other than the issue relating to Seastrunk referencing Patrick Coyle by his last name, no one other than Gonzales had ever complained in any way about Seastrunk. (App. 288). 47. On March 9, 2016, just about two weeks after Seastrunk had returned from suspension, Gonzales requested that he be put on a thirty day PIP. (App. 392, 132-133). Gonzales had placed only two other employees on PIPs while Director of the New Product Development Group, and neither of them were Project Managers Scherer or Fothergill. (App. 522). Gonzales drafted the PIP with minor edits of Schneider. (App. 394, 135). 48. On March 16, 2016, Seastrunk was placed on the PIP in a meeting with Gonzales and Schneider. (App. 24, 30, 228, 394). The placement of the PIP on Seastrunk occurred nine days after Seastrunk was notified by the CEO of Entegris that the project on which he had been Project Manager for nearly a year and a half was being given the Champion’s Cup for the company worldwide. (App. 362). The PIP was instituted despite the fact Seastrunk was receiving praise and accolades for his work on the Samsung project and another project, G-Tech, which were 98% of his job responsibilities. (App. 37). Schneider can’t recall what prompted Gonzales to request to put Seastrunk on a PIP (App. 226), and she did not express concern to Gonzales that it was very subjective. (App. 229). 49. For example, one of the bullet points in the PIP was for Seastrunk to “demonstrate that you are aligned with my thought process on project management, professional behavior with others within the organization and written and verbal communication.” (App. 229, 397-398). Schneider agrees that “in theory” a PIP should have objective goals where whether or not objectives were obtained could be determined on an objective basis. (App. 229). The PIP indicated Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 26 of 58 PageID 1537 19 | P a g e that Gonzales and Seastrunk were to meet weekly to discuss planned activities and Seastrunk was to submit a monthly report about projects. (App. 136, 397). Seastrunk refused to sign the PIP. (App. 136). Gonzales admits that Seastrunk was asked to complete a number of assignments that were more than other project managers were being asked to complete due to the PIP. (App. 149- 150). 50. In mid-March, there was a position for Project Manager that was open at a different location of Entegris, just prior to Seastrunk being placed on a PIP. (App. 24, 25). At Entegris, corrective actions or a PIP may render a person ineligible for transfer depending on the decision of management. (App. 230-231, 315, 344). After Seastrunk was placed on the PIP he was advised that he was ineligible to apply for a position in a different group. (App. 25, 332). J. After Being Placed on a PIP, Seastrunk Complains about Race Discrimination. 51. Entegris maintains employment policies that prohibit race discrimination in transfer, training, and termination. (App. 181; App. 58-59; App. 351). Entegris policy also prohibits a hostile environment, which can include comments based on race or color. (App. 143, App. 351). Violation of the discrimination policy is supposed to result in severe sanctions, up to and including termination of employment. (App. 181, 353). Employees who believe they have received discriminatory conduct is supposed to report that conduct to a manager. (App. 182, 59, 353-354). 52. Entegris policy also prohibits retaliation against employees who in good faith report information. (App. 182, 354). Employees who make such reports are not supposed to experience penalties, a loss of benefits, or termination. (App. 182-183, 186, 59, 354). Managers at Entegris receive only two to four hours of training every two years about discrimination and retaliation. (App. 186). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 27 of 58 PageID 1538 20 | P a g e 53. When an employee makes an allegation or complaint of discrimination are supposed to be investigated in a thorough manner. (App. 183, 353-354). Schneider concedes it is important that human resources (“HR”) investigate complaints of discrimination and retaliation to prevent additional discrimination or retaliation. (App. 183). Complaints of discrimination can include written or verbal communications that specifically complain about discrimination or harassment. (App. 183-184). If an employee reports they are being treated badly or unfairly, or differently than other employees, it is an HR manager’s duty to determine on ask the basis the employee believes they are being treated unfairly. (App. 184-185). If an employee indicates that they are being subjected to a hostile work environment it is of the manager to determine why they think their work environment is hostile. (App 186, 60). 54. Following his placement on the PIP, on March 18, 2016, Seastrunk sent a response to Schneider about the PIP being unwarranted. (App. 403-405, 138). Specifically, Seastrunk asserted that the PIP contained falsehoods about his work performance. (App. 403-404, 232, 140). In his complaint Seastrunk complained that Gonzales was creating a hostile work environment forged by managerial intimidation and retaliation. (App. 403, 232-233, 140, 521). Seastrunk also complained to Schneider that his civil rights were being violated. (App. 37, 403, 521). Seastrunk further asserted that Gonzales is “retaliating against me wanting to leave his group because of his disproportional treatment and him not providing comparative treatment.” (App. 236, 403, 142, 521). Schneider provided a copy of this email to Gonzales. (App. 139). He also noted that only he and Mr. Jordan (the only other Black employee reporting to Gonzales), were the only ones being asked to write white papers and not getting to travel to see customers or vendors. (App. 521). 55. Despite Seastrunk referencing the hostile work environment, lack of comparative treatment, disproportional treatment, and retaliation under Gonzales, and a violation of his civil Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 28 of 58 PageID 1539 21 | P a g e rights, Schneider and Gonzales claim that it never occurred to them that Seastrunk for raising a claim of race discrimination. (App. 233, 237, 239-240, 142-145). Schneider did not ask Seastrunk why he felt his work environment was hostile or why he felt he was not being treated comparatively to other team members, or why he felt his civil rights were being violated. (App. 234, 237-238, 240, 520). Gonzales also did not inquire of Seastrunk about what he felt as causing a hostile work environment. (App. 140-141). Schneider asserts she did not do so because she was not certain the issues raised by Seastrunk in the rebuttal were valid (App. 241), even though she admits “in theory” it is her obligation as an HR director to sit down with an employee and ask what the underlying basis for complaint is. (App. 241). 56. After Seastrunk submitted the complaint, Schneider discussed it with Gonzales and Sirignano and the three of them concurred that decided there “was not much concern” about whether Seastrunk was raising a discrimination complaint and that he was upset about the PIP and so had submitted the rebuttal. (App. 234-235). Schneider says they did not did not mention the word race specifically, but she did ask why Seastrunk might consider his workplace hostile. (App. 235-236). In direct contravention of Schneider’s testimony, Sirignano denied he reviewed a copy of this complaint of Seastrunk; or that he ever talked with Schneider about Seastrunk alleging he was subject to a hostile work environment, was being subjected to disproportional treatment or non-comparative treatment, or that he had alleged a violation of civil rights. (App. 312-313). Sirignano admits that if he had been aware that an allegation of hostile environment had been made by Seastrunk that he would have involved corporate HR as to whether it raised issues of race discrimination. (App. 313-314). Gonzales denied that he exhibited behavior that would constitute a hostile environment and Sirignano concurred. (App. 235). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 29 of 58 PageID 1540 22 | P a g e 57. After Seastrunk submitted his complaint no one talked to him about the basis for his complaint and no one investigated the complaint. (App. 37). Schneider admits that she did not do anything to investigate his complaints other than have the one meeting with Gonzales and Sirignano. (App. 244). He was not allowed to transfer away from Gonzales into an environment that was not hostile. (App. 39). 58. Gonzales and Seastrunk were supposed to have weekly meetings during the PIP process and Seastrunk did arrange the weekly meetings except one week when Gonzales was unavailable. (App. 244-245, 136-137). During the PIP, Seastrunk requested a meeting with Sirignano to discuss what he had done regarding the PIP and to discuss that he felt Gonzales kept changing what needed to be provided. (App. 31-32). Seastrunk provided an update on the PIP progress to date indicating he was meeting the requirements of the PIP, although the PIP was still ongoing and Seastrunk was still working on items in the PIP. (App. 32, 412, 247, 316-317). Sirignano provided that email to Gonzales and Schneider and Gonzales responded on April 13, 2016, that Seastrunk was failing “miserably.” (App. 248, 406, 153-154). Seastrunk told Sirignano as to the PIP that no matter what he did it was not going to be right. (App. 32-33). On April 18, 2016, Gonzales advised Schneider that he will recommend termination of Seastrunk. (App. 415). 59. On April 21, 2016, Seastrunk provided Schneider an assessment of his accomplishments relating to the PIP (App. 258-259, 419), and he provided a PowerPoint relating to those accomplishments to Gonzales. (App. 257, 32-33), not knowing that Gonzales had already recommended his termination. Gonzales and Schneider met with Seastrunk, with Gonzales giving his feedback about Seastrunk’s performance on the PIP and asserting that five of six tasks had not been completed in the thirty day period. (App. 253-254). Schneider had no personal knowledge as to Seastrunk had actually performed during the PIP period and did not do any investigation Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 30 of 58 PageID 1541 23 | P a g e other than talking to Gonzales concerning Seastrunk’s actual job performance. (App. 259). Sirignano did not give any input into whether Seastrunk had completed the PIP requirements and did not in any way assess that. (App. 318). Seastrunk responded that he was being “railroaded.” (App. 254). K. Seastrunk is Terminated About One Month After Imposition of PIP. 60. At the end of the PIP period, Gonzales recommended Seastrunk be terminated. (App. 248-250, 161-162, 154). Schneider asked Gonzales for a summary supporting the termination and she also discussed it with the Vice President of Human Resources, Jim Gellar, and a Caucasian, who concurred with the termination but did not have any personal knowledge relating to Seastrunk’s job performance. (App. 248, 257, 265-266, 155, 421). Sirignano did not participate in this decision, but he was informed and he did not disagree. (App. 319-320, 414). 61. On April 25, 2016, Seastrunk was terminated by Schneider and Gonzales, for alleged failure to complete the PIP and 2015 job performance. (App. 35, 160). Seastrunk was told Schneider, Gonzales, and Greg Graves, the Chief Financial Officer, were the people who made the decision to fire him. (App. 38). Schneider approves all terminations at the Decatur, Texas facility but she did not have personal knowledge concerning his performance and was only aware of his performance through Sirignano and Gonzales. (App. 173, 191). 62. After Seastrunk’s termination, Gonzales took over Seastrunk’s job duties for about three months. (App. 262-263, 162-163). The Samsung project continued after Seastrunk’s termination through 2016, and while it has no longer within the new product development team as it had been released to manufacturing, it is now earning even more revenue for Entegris. (App. 101, 163, 302-303, 305). In his 2016 performance review Sirignano received an exceptional sub- category rating, with comments noting that the Samsung Glass Forming project exceeded plan Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 31 of 58 PageID 1542 24 | P a g e with the company obtaining the follow-on programs for Samsung as well as an additional contract outside Samsung. (App. 505). 63. At his deposition, Gonzales asserted that Robert Anderson (“Anderson”), Caucasian, had been hired subsequent to Seastrunk as a design engineer, and that his job duties were different than Seastrunk in that he worked on more technical creation of drawings and specifications. (App. 165-166). However, in interrogatory responses Entegris stated that “beginning in 2017, Robert Anderson, Caucasian, senior design engineer, assumed some of the tasks relating to glass forming from Gonzales,” stating he had been hired November 28, 2016 (App. 165-166, 515-517). 64. Sirignano admitted in his testimony Anderson is a Project Manager under Gonzales, and that Scherer remains also employed as a Project Manager under Gonzales. (App. 271). Had Seastrunk remained employed he would have been assigned other projects to work on in the new product development area. (App. 163-164). II. SUMMARY JUDGMENT STANDARDS Under FED. R. CIV. P. 56, a motion for summary judgment should be granted only if from the pleadings, depositions and other evidence before the Court, the movant can demonstrate that no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 77 U.S. 242 (1986). All inferences to be drawn from the underlying facts in the materials presented by the parties must be viewed in the light most favorable to the non-moving party. United States v. Diebold, 369 U.S. 654, 655 (1962), and as long as there appears to be some evidentiary support for the disputed allegations, the motion must be denied. Anderson, 477 U.S. at 249. III. ARGUMENT AND AUTHORITIES. Seastrunk asserts race and retaliation under Title VII, the TCHRA, and 42 U.S.C. § 1981. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 32 of 58 PageID 1543 25 | P a g e 1. Seastrunk Establishes a Prima Facie Case of Race Discrimination. A plaintiff establishes a prima facie case of race discrimination by demonstrating: (1) he is a member of a protected class; (2) he was qualified for the position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or otherwise discharged due to the protected characteristic. See Brown v. Cottonwood Fin. Tex, 2018 U.S. Dist. LEXIS 37973 (E.D. Tex. March 8, 2018), citing Goudeau v. Nat’l Oilwell Varco, L.P. 793 F. 3d 470, 474 (5th Cir. 2015). A. Seastrunk Establishes a Prima Facie Case of Discrimination in Regard to Termination. Entegris asserts that Seastrunk cannot establish a prima facie case of race discrimination because he cannot show Caucasian employees who were similarly situated that were treated more favorably than him under “nearly identical” circumstances. (D.’s Br. at 18). Specifically, Entegris asserts that the other two Project Managers reporting to Gonzales did not display the same performance issues. Id. Additionally, Entegris asserts that Seastrunk cannot identify any employee who requested a transfer and was denied such a transfer. (D.’s Br. at 19). Finally, Entegris asserts that Seastrunk has no evidence that any other Project Manager working for Gonzales was not terminated for failing to meet a PIP. (D.’s Br. at 20). Entegris misstates Seastrunk’s burden in establishing a prima facie case. Seastrunk establishes his prima facie case in regard to termination because he establishes that: (1) he is Black and therefore a member of a protected class (App. 4, 9; App. 335; (2) he was qualified for the position in that he successfully performed in the Project manager position as reflected in his 2013 performance review (App. 10, 365, 78, 290-291), his 2014 performance review (App. 10-12, 366, 369-370, 292-293), his 2015 performance review (App. 12, 378-379, 108), and his project winning the Champion’s Cup award (App. 199, 103); (3) Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 33 of 58 PageID 1544 26 | P a g e he was subject to an adverse employment action in that he was terminated (App. 35, 160); and (4) he was replaced by someone outside the protected class in that Entegris hired Robert Anderson, Caucasian, to perform some of Seastrunk’s job duties. (App. 165-166, 515-517, 271). In regard to Entegris’ assertion that Seastrunk cannot establish a prima facie case of race discrimination because he cannot show Caucasian employees who were similarly situated that were treated more favorably than him under “nearly identical” circumstances, this Circuit has noted that it is mistaken for an employer to argue to state a case of discrimination that the plaintiff must identify a similarly situated employee who received preferential treatment under nearly identical circumstances. Brown, 2018 U.S. Dist. LEXIS 37973 at *5. Rather, if a plaintiff is replaced by an employee outside the protected class, that is sufficient to establish a prima facie case. However, even if as asserted by Entegris, Seastrunk had to proffer evidence that similarly situated Caucasian employees were treated more favorably than him to establish a prima facie case he could do so. There were only two other Project Managers at POCO, Scheher and Fothergill, both Caucasian. (App. 4, 177-178, 336, 180). Seastrunk’s evidence indicates that Fothergill and Scherer were treated more preferentially than Seastrunk, as they had significant errors without being terminated. (App. 36). Fothergill led the LED project which had a significant test failure that cost substantial money (App. 280-281, 5, 55), and unlike the enormously successful Samsung project led by Seastrunk, one part of the LED project was such a failure it was shut down, and the other part while validated did not result in any company revenue. (App. 279-280, 497, 531-532, 322-323, 458). Although Seastrunk had requested a transfer out from Gonzales’ group in February 2016 and sent his resume to Schneider, she can’t remember if she made any effort to provide it to anyone in the organization and he was not transferred (App. 218-219; App. 388), while despite the Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 34 of 58 PageID 1545 27 | P a g e LED failure the next month Fothergill was allowed to transfer to an EDM applications engineering position, no longer reporting to Gonzales. (App. 45, 66, 179, 206-261, 431, 54, 321, 432). Additionally, Scherer and Fothergill were not assigned numerous white papers to complete like Seastrunk (App. 16-18, 36). Scherer in his 2014 performance review received a “needs improvement” rating regarding the writing of white papers (App. 466) and in 2015 it was also noted he was not meeting this goal (App. 323-324). Seastrunk had to take over a medical shoulder ball project Scherer had not successfully managed, which he was able to successfully complete that project in a short period of time. (App. 6, 13, 22-23, 519). Yet it was Seastrunk that was put on a PIP the same week his project won the worldwide Champion’s Cup the same week as he was put on the PIP, while Fothergill and Scherer were not put on PIPs despite significant failures on projects, some exhibited performance deficiencies, and similar performance review scores. (App. 522, 323, 466, 468). Seastrunk has established a prima facie case of race discrimination. B. Seastrunk Establishes a Prima Facie Case of Retaliation Discrimination. A plaintiff establishes a prima facie of retaliation by showing: (1) that they engaged in protected activity; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision. Jones v. Flagship International, 793 F.2d 714, 724 (5th Cir. 1986); Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 298 (5th Cir. 1994); Hamilton v. Rodgers, 791 F.2d 439, 441 (5th Cir. 1986). Once a plaintiff establishes a prima facie case, the burden of producing some non- discriminatory reason falls upon the defendant. EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1326 (5th Cir. 1991). If the defendant is successful in coming forth with a non-discriminatory reason for the adverse employment action, the employee then assumes the burden of showing that the reasons given were pretext for retaliation. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 35 of 58 PageID 1546 28 | P a g e Entegris asserts that Seastrunk’s retaliation claims should be dismissed because: (1) he has no evidence to support a retaliatory discharge claim due to his not having complained about being treated differently due to race; (2) he is not being able to establish a causal link between protected conduct and termination; and (3) he is not being able to rebut Entegris’ legitimate, non-retaliatory reason for his discharge of continued non-acceptable job performance. (D.’s Br. at 23). 1. Seastrunk Raises Genuine Issues of Material Fact that he Opposed Discrimination. Title VII prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). A plaintiff is protected under Title VII by making a complaint about discrimination based on a reasonable, good faith belief that the conduct complained of is unlawful. Clark County School District v. Breeden, 532 U.S. 268 (2001). It is not required that the plaintiff be correct in believing that the conduct complained of constitute discrimination or harassment. DeAnda v. St. Joseph’s Hospital, 671 F.2d 850 (5th Cir. 1982). See e.g., Webster v. Bass Enters. Prod., 192 F. Supp. 2d 685, 695-96 (N.D. Tex. 2002) (a mistaken but good faith belief that Title VII has been violated is protected). Thus, even where the conduct complained of is deemed insufficient to constitute discrimination or harassment, courts have found it to be based on a reasonable good cause belief that is occurred, which is sufficient to establish oppositional conduct. Entegris asserts that because Seastrunk never specifically stated he was being discriminated against because of his race, he does not oppose discrimination under Title VII. Seastrunk’s rebuttal to his PIP alleged: • that Mr. Gonzales had “created a hostile work environment forged by managerial intimidation and retaliation tactics” Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 36 of 58 PageID 1547 29 | P a g e • that he had been subjected to actions by Mr. Gonzles “in retaliation to me wanting to leave his group because of his disproportional treatment and him not providing comparative treatment”; • That he felt these two acts constituted a “violation of one’s Civil Rights”; • That only he and Kenny Jordan (the only other African-American reporting to Gonzales) were being asked to write white papers and not getting to travel to see customers or vendors (App. 403-405, 138, 140, 232-233, 521, 37, 236, 142) Such statements clearly constitute opposition to unlawful employment practices under Title VII. In the FLSA retaliation context, the United States Supreme Court, in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011) stated that a complaint under an anti- retaliation statute is made when “a reasonable objective person would have understood the employee” to have “put the employer on notice that [the] employee is asserting statutory rights under the [Act.]” The Court noted that a “complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, August 25, 2016, provides: The opposition clause of Title VII has an “expansive definition” and that “[t]he opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words “harassment,” “discrimination,” or any other legal termination, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complainant would reasonably have been interpreted as opposition to employment discrimination. (emphasis added) (citations omitted). Initially, Seastrunk’s reference to the conduct as violating his “civil rights” should clearly have put Entegris on notice that his complaint was based on race. Given that he is African- American, in asserting that his civil rights were being violated, a reasonable objective employer would have understood him to be putting them on notice that he was asserting statutory rights Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 37 of 58 PageID 1548 30 | P a g e under civil rights laws. See Kasten, 131 S. Ct. at 1335. Entegris cites to some Fifth Circuit cases wherein a reference to “unfair treatment” or “harassment” or “hostile environment,” standing alone are insufficient to raise to the level of opposition conduct where race or sex or age are not specifically referenced. However, here Seatrunk raises a fact issue as to whether the jury could conclude that the employer should have been able to discern from the myriad of complaints he made (violation of civil rights; disproportionate treatment; non-comparative treatment; hostile work environment), that he was opposing unlawful retaliatory and race discrimination. See, e,g., Yazdiana v. ConMed Endoscopic Techs, Inc., 793 F. 3d 634, 646 (6th Cir. 2015) (where the employee used the term “hostile work environment” combined with an assertion that he was going to respond with counsel and bring a lawsuit a reasonable jury could conclude the complaint references discriminatory treatment and meant it to be a complaint about national origin or religious discrimination). Futher, there is no evidence that Seatrunk’s references to “non- comparative” and “disproportionate treatment” are attributable to any issue other than race. Moreover, the fact Seastrunk complains that only he and Mr. Jordan were being requested to write white papers by Gonzales, and they were the only two African-American employees supervised by Gonzales, further buttresses the argument that his complaints would reasonably have been interpreted as opposition to employment discrimination. This is especially true given that Entegris’ own discrimination policy prohibits the creation of a “hostile environment” and specifically references such an environment can be created based on comments relating to race or color. (App. 143, 351). Courts have found that an employer was reasonably put on notice that an employee is conveying opposition or resistance to a perceived potential EEO violation in similar cases. See, e.g., Flaig v. Hi-Line Elec. Co., 2007 U.S. Dist. LEXIS 102539, *4 (N.D. Tex. Sep. 28, 2007) (in Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 38 of 58 PageID 1549 31 | P a g e disability retaliation case the fact that the employer knew the employee had cancer and had expressed disagreement with “discriminatory” behavior sufficient to constitute oppositional conduct as it could have put the employer on notice that the basis of the complaint was his disability); Umoren v. Plano L.S.D. Bd. of Trs., 2011 U.S. District LEXIS 26299, *14 (E.D. Tex. March 14, 2011) (finding letter wherein the plaintiff said that he felt a negative evaluation was evidence of “selective, discriminatory, and malicious motives” sufficient to create an issue of material fact as to whether he had opposed discrimination, despite the fact he had not mentioned race); Watkins v. Texas Dept. of Criminal Justice, 269 Fed. Appx. 457, 461-462 (5th Cir. 2008) (assuming for sake of argument that interoffice communication regarding the transfer of two black employees and replacement with two insubordinate white employees was based on race by implication sufficient to constitute protected activity). Moreover, the claims of HR Manager Schneider and Gonzales that Seastrunk’s written complaint did not raise the issue of race discrimination in their mind (App. 233, 237, 239-240, 142-145), is not credible. Sirignano admits that if he had been aware that an allegation of hostile environment had been made by Seastrunk that he would have involved corporate HR as to whether it raised issues of race discrimination. (App. 313-314). Schneider and Gonzales admit that if an employee indicates that they are being subjected to a hostile work environment it is up to the manager to determine why they think their work environment is hostile (App 184-186, 60), yet no one asked Seastrunk about his rebuttal complaint (App. 37) and Schneider admits that she did not do anything to investigate his complaints other than have the one meeting with Gonzales and Sirignano. (App. 244). That she failed to do so is indicative of the fact she did not want to document any affirmative response relating to his allegations of discrimination. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 39 of 58 PageID 1550 32 | P a g e 2. Seastrunk Raises Genuine Issues of Fact that there is a Causal Link Between his Opposition to Discrimination and his Termination. In the context of a summary judgment motion, a plaintiff does not have to prove that the alleged retaliation was the sole motivating factor in the employer’s decision to take the adverse action. Long v. Eastfield College, 88 F.3d 300, 305, n.4 (5th Cir. 1996). The Fifth Circuit held that “evidence is substantial if it is of such a quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Id. at 308. In considering whether a causal connection exists, courts look to evidence of retaliatory animus, and evidence that the adverse action was taken after the employer became aware of the protected activity. "Suspicious timing" in the context of viewing "the totality of this evidence," is sufficient to survive summary judgment. Shackelford v. Deloitte & Touche, L.L.P., 190 F.3d 398 (5th Cir. 1999). Moreover, close timing alone may be sufficient to provide a causal connection, when the adverse action happens in close proximity to the discrimination complaint. "Close timing between an employee's protected activity and an adverse action against [her] may provide the 'causal connection' required to make out a prima facie case of retaliation." Swanson v. Gen. Servs. Admin., 110 F. 3d 1180, 1188 (5th Cir. 1997), cert. denied, 529 U.S. 948 (1998). See, e.g., Garret v. Cornstar, 1999 U.S. Dist. LEXIS 9361, *16-17 (N.D. Tex. May 26, 1999) (termination four months between the plaintiff being identified as a witness in a co-worker’s sexual harassment suit and two months after signing an affidavit for the lawsuit sufficiently close timing to prove causal connection); Richard v. Cingular Wireless LLC, 233 Fed.App’x 334, 338 (5th Cir. 2007) (two and a half months between protected conduct and termination sufficiently close to prove causal connection); Richardson v. Prairie Opportunity, 470 Fed. App’x 282, 286-87 (5th Cir. 2012) (just less than two months between complaint and employment action is indicative of a causal Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 40 of 58 PageID 1551 33 | P a g e connection); Haire v. Bd. Of Supervisors of La. State Univ., 719 F. 3d 356, 368 (5th Cir. 2013) (four month period between complaint and alleged discriminatory decision, coupled with changes to the plaintiff’s job duties in this period, raised inference of retaliation). Seastrunk evidences very close timing between his complaint and the actions taken against him. As noted supra, Seastrunk was place on the PIP on March 16, 2016 (App. 24, 30, 228, 394), and he submitted a complaint about racial discrimination on two days later, on March 18, 2016, (App. 403-405, 138). Seastrunk was then terminated just over one month later, on April 25, 2016. (App. 35, 160). Moreover, it is clear that shortly after Seastrunk submitted his discrimination complaint on March 18, 2016, that Gonzales decided to recommend his termination because on April 13, 2016, just three weeks into the PIP, Gonzales was asserting that Seastrunk was failing “miserably” (App. 248; App. 406; App. 153-154). Seastrunk’s evidence that he complied with the PIP evidences that his termination was due to his complaint, including in that: • Seastrunk arranged the required weekly PIP meetings except one week when Gonzales was unavailable (App. 244-245, 136-137); • Seastrunk provided an update on the PIP progress to date to Sirignano indicating he was meeting the requirements of the PIP, although the PIP was still ongoing and Seastrunk was still working on items in the PIP (App. 32, 412, 247, 316-317); • On April 21, 2016, Seastrunk provided Schneider an assessment of his accomplishments relating to the PIP (App. 258-259, 419), and he provided a PowerPoint relating to those accomplishments to Gonzales. (App. 257, 32-33), not knowing that Gonzales had already recommended his termination. Moreover, Seastrunk’s evidence indicates that Gonzales was setting him up to fail in regard to the PIP: • Seastrunk had to seek out a meeting with Sirignano to discuss that he felt Gonzales kept changing what needed to be provided to comply with the PIP (App. 31-32) and told Sirignano as to the PIP that no matter what he did it was not going to be right (App. 32-33); • Gonzales asserted to Schneider and Sirignano, who had no personal knowledge as to Seastrunk’s actual performance on the PIP that he had not completed five of the six tasks on the PIP (App. 253-254, 259, 318), when as noted supra, Seastrunk did comply with the PIP terms. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 41 of 58 PageID 1552 34 | P a g e Such close time provides sufficient evidence of a causal connection between his complaint and his termination. In addition to close timing, Seastrunk presents other evidence of retaliatory animus of the decisonmakers, as noted infra which supports a causal connection. C. Seastrunk Establishes Pretext for Race Discrimination and Retaliation. Discrimination claims can be established through either direct or circumstantial evidence If based on circumstantial evidence, as in the instant case, it is analyzed under the McDonnell Douglas framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1983). Under this framework, the plaintiff must first create a resumption of discrimination by making out a prima facie case of discrimination, and the burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for its decision. Id; see Evans v. City of Houston, 246 F.3d 344, 349 (5th Cir. 2001). The plaintiff then bears the burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated due to protected status. McDonnell, 411 U.S. at 802. Once a plaintiff establishes a prima facie case, the burden of producing some non-discriminatory reason falls upon the defendant. EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1326 (5th Cir. 1991). A plaintiff may establish pretext either through evidence that the employer’s proffered explanation is false or “unworthy of credence.” Reeves v. Sanderson Plumbing Products., Inc., 530 U.S. 133, 143 (2000). An employee need not present evidence of the pretextual nature of the defendant's articulated legitimate nondiscriminatory reason for its decision and additional evidence of discrimination to avoid judgment as a matter of law. Id. at 147-48. Rather, once the employee presents evidence of the pretextual nature of the decisions, no further evidence of Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 42 of 58 PageID 1553 35 | P a g e discriminatory animus is required because “once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation.....” Id. Proof of pretext can be accomplished by three different means: (1) showing that similarly situated people are treated differently; (2) showing that the employer deviated from established procedures in dealing with the plaintiff; or (3) simply showing that the defendant’s proffered explanation is not credible. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507-508 (1993); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc). A plaintiff need only establish that discrimination played a role in his termination, not that it was the sole reason for the termination. See id. at 994 (citations omitted). Evidence demonstrating that the employer's explanation is false or unworthy of credence, taken together with the plaintiff's prima facie case, is sufficient to support an inference of discrimination because “once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation.” Reeves, 530 U.S. at 147-48. Entegris asserts that even if Seastrunk could establish a prima facie case of race discrimination that his claim fails because he cannot establish that the stated reasons for the adverse employment action are a pretext for race discrimination. However, Seastrunk raises genuine issues of material fact regarding pretext. 1. Evidence of Good Job Performance of Seastrunk Evidences Pretext. Seastrunk establishes pretext through evidence of good job performance. Evidence such as positive performance evaluations, failure to document alleged job performance problems and other documentation reflecting good job performance, may raise genuine issues of material fact as to whether an employer’s proffered reasons for termination of employment are pretextual. Johnson v. Enjoy the City, Inc., 2010 U.S. Dist. LEXIS 21920, *8 (N.D. Tex. March 10, 2010). Courts have held that evidence of the plaintiff’s good performance and lack of alleged disciplinary issues, Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 43 of 58 PageID 1554 36 | P a g e constitute some evidence of pretext. See, e.g., Glasmire v. Public Storage, 2013 U.S. Dist. LEXIS 64794, *17 (N.D. Tex. May 7, 2013) (summary judgment on age claim improper where the plaintiff undermines the veracity of the employer’s reasons for termination with evidence of good performance and the award of discretionary bonuses each year of employment); Paulissen v. MEI Technologies, Inc., 942 F. Supp. 2d 658, 666-667 (S.D. Tex. 2013) (evidence in performance reviews that directly conflicts with the employer’s stated reason for the adverse action allows an inference of pretext); Williams v. Time Warner Operation, Inc., 98 F.3d 179, 183 (5th Cir. 1996) (where there are positive performance reviews conflicting with negative supervisor recommendations it is indicative of pretext as one of them must be a lie). Gonzales testified that if an employee had job performance problems those would be in the performance review. (App. 65). Seastrunk’s evidence indicates a record of positive performance reviews: • Seastrunk’s 2013 performance review indicated an overall “Effective” rating, and without any sub-category “needs improvement” scores (App. 10, 365, 78, 290-291); • Comments made on Seastrunk’s performance review included that Seastrunk had “started off very strong” as he had really taken on training, understanding and learning the materials, and learning the company culture (App. 77, 365); • Seastrunk’s 2014 performance review also indicated an overall “Effective” rating, including a number of sub-category ratings of “Highly Effective” (App. 10-12, 366, 369- 370, 292-293) and he received no “needs improvement” ratings on any sub-category on the 2014 review (App. 82, 366); • Gonzales did not receive any complaints from team members, co-workers, or customers about the job performance of Seastrunk (App. 87-88, 368); • No co-workers of Seastrunk made any complaints about him to HR at any time, nor did any customers or clients. (App. 196, 301); • Comments on Seastrunk’s 2014 review included that he “showed a solid understanding of BU procedures and processes” (App. 82-83, 366, 293); had managed numerous projects and brought his “high-level” thought process to each project, and “provides excellent updates and communications” across the business unit (App. 85-77, 367, 369); is a “respected colleague throughout the plant and that he treats everyone with dignity and respect, and was becoming a leader within the group (App. 368-569); had created a template for white papers, which was a format that could encompass both external and Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 44 of 58 PageID 1555 37 | P a g e internal facing white papers (App. 86, 366); and is a “well rounded key contributor and a critical part of the success to date of the Samsung project.” (App. 370, 88, 297); • Seastrunk’s 2015 review noted that the Samsung glass forming project is perhaps the “most critical and high-visibility project” at the company and that Seastrunk was an important part of this team (App. 374). It is further indicative of Seastrunk’s good job performance is that he received a merit increase March 27, 2015 based on his effective job performance rating as merit increases depend at least in part on the score on performance evaluations. (App. 75, 78 348, 264-265, 54, 435). Seastrunk’s being chosen to be the Project Manager on the high visibility Samsung Project and his work on this project are strong evidence of pretext in regard to Entegris’ assertion of deficient job performance: • Around December 2014, Seastrunk was chosen to lead the Project Management of the Samsung project (App. 70, 45, 278), when it was just starting in the new product development phase (App. 101, 304); • At the time he was selected, the Samsung project was the biggest new product development product at the Decatur facility (App. 84); • Seastrunk regularly received praise and accolades for his work on the Samsung project and another project, G-Tech, which were 98% of his job responsibilities (App. 37); • Seastrunk regularly interacted successfully with employees of Samsung when he was on the project, including in that he had interactions with the Director of Finance and other managers (App. 519). Finally, the fact that after Seastrunk had been Project Manager on the Samsung team for over 15 months, that the team won the most prestigious company award worldwide, evidences his job performance was good: • The Samsung project received the offensive playmaker award the first quarter of 2015 (App. 89-90, 298-299), the first step towards being considered for the Champion’s Cup; • The Champion’s Cup award is an annual award is given to one team in Entegris worldwide and the most prestigious award that can be granted in the company. (App. 104, 362, 196- 197), and it is decided by the executive leadership team (App. 196, 89, 299-300); • In early 2016, the Samsung team won the Champion’s Cup award, which was based on sales of roughly 21 million dollars, with potential ongoing revenue of 20 million (App. 199, 103); Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 45 of 58 PageID 1556 38 | P a g e • Seastrunk was notified on March 7, 2016, that his team was being awarded the Champion’s Cup award (App. 37, 362), and was awarded company stock and a bonus (App. 191, 362, 520); • On March 16, 2016, when Seastrunk was placed on the PIP (App. 24, 30; App. 228; App. 394), it was only nine days after Seastrunk was notified that the project on which he had been Project Manager for nearly a year and a half was being given the Champion’s Cup for the company worldwide. (App. 362); • By 2016, the Samsung project had already result in a contract worth over twenty million dollars (App. 14) and it was the most critical and high visibility project at Entegris, due to the large revenue being generated on the project (App. 110-111, 374, 308). Thus, these facts indicate that Seastrunk’s job performance was in fact strong and that Entegris’ assertion of job deficiencies to support the reason for his termination are pretextual. 2. Failure to Follow Established Procedures and to Have Documentation of Alleged Bad Job Performance Evidences Pretext. At the pretext stage, often a plaintiff may show pretext by demonstrating that the employer failed to follow established company procedures regarding to the adverse employment action. Failing to adhere to company policy evidences pretext. See Woodhouse v. Magnolia Hosp., 92 F. 3d 248, 254-55 (5th Cir. 1996). See also Russell v. McKinney Hospital Venture, 235 F.3d 219, 224 (5th Cir. 2000) (finding that employee’s outstanding evaluations and employer’s failure to follow internal progressive disciplinary procedures in terminating the employee were substantial evidence of pretext); Machinchick v. PB Power, Inc., 398 F. 3d 345, 355 (5th Cir. 2005) (failure to follow progressive disciplinary procedures in effect is some evidence of pretext). A failure to follow progressive disciplinary procedures is some evidence of the falsity of the alleged reason for termination. “A jury may be able to infer discriminatory intent in an appropriate case from substantial evidence that the employer’s proffered reasons are false.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc) Failure to have documentation of alleged disciplinary actions given to the plaintiff is indicative of pretext where the policy or practice of the company or supervisor is to keep such Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 46 of 58 PageID 1557 39 | P a g e documentation. Evans v. Houston, 246 F. 3d 344, 355 (5th Cir. 2001). The lack of documentation of what an employer calls a chronic performance deficiency with an employee can be sufficient to permit an inference that the performance rationale is a pretext for intentional discrimination. Tyler v. Union Oil Co. of Calif., 304 F.3d 379, 396-97 (5th Cir. 2002). See also, Mickelson v. New York Life Ins. Co., 460 F.3d 1304 (10th Cir. 2006) (lack of contemporaneous documentation reflecting that the employer desired a particular qualification held by the male employee at the time of the job opening, or that the male was hired because he had those qualifications, constitutes evidence the employer acted with discriminatory animus); Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 34-35 (1st Cir. 2001) (criticisms of the plaintiff offered by the company appeared to be new assessments that were never written down at the time they allegedly occurred, there were no contemporaneous records showing criticisms of the plaintiff’s work, and the plaintiff produced evidence of “the flaws in the company’s explanation for its actions”); Reed v Buckeye Fire Equipment, 2007 U.S. App. LEXIS 18120 (4th Cir. 2007) (where employer now asserts poor performance but there is no documentation of it and the employee was given increases in responsibilities and raises and bonuses, such lack of documentation can evidence pretext); Coburn v Rockwell Automation, Inc., 2007 U.S. App. LEXIS 16632 (6th Cir. 2007) (employer’s failure to produce even a single short writing or handwritten note showing a supposed risk analysis alleged conducted before a reduction in force, evidences that the reason was pretextual). Entegris asserts poor job performance by Seastrunk in 2015 and into 2016 but fails to have documentation to support this assertion: • Gonzales can identify only two employees who he claims made complaints about Seastrunk in 2015 but he did not document those complaints (App. 91-92, 100) and they were not something Seastrunk was even told about (App. 518); • Sirignano identified on manager as complaining to him in February 2015, that Seastrunk had proposed a possible use of glass for a new product that was not feasible but he agrees Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 47 of 58 PageID 1558 40 | P a g e it was part of the directive of the group to come up with new ideas (App. 283, 284-285); • Sirignano also said that Seastrunk had not been able to engineer a solution to a pitting problem with a material; however, a way to reduce this failure rate was not found until late 2016 or early 2017 after Entegris developed a team to come up with optimized machining criteria for this problem (App. 286-287); • Gonzales admits no one from Samsung or any other customer of Entegris made complaints about Seastrunk (App. 102-103); • From the start of his employment through February 2016, Seastrunk was not advised that his job performance was deficient and he did not receive any documented verbal or written disciplinary actions during his employment until he was put on a PIP (App. 518); • Gonzales claims that in the spring of 2015 he and Sirignano decided to limit Seastrunk’s work on the Samsung project by taking away his overall management and guiding of the team and relegating him to just a support role (App. 92-94), however, the alleged narrowing of the scope of Seastrunk’s job was never discussed with HR and was not documented in any way in any written disciplinary action (App. 94-97, 360) nor referenced as being taken away in his 2015 performance review (App. 367, 130); • Gonzales claimed issue with Seastrunk’s 2015 job performance despite the fact he did not review his performance on a day to day basis and only attended a weekly meeting when he was not traveling (App. 71, 75); • Seastrunk denies that at any time in 2015 Gonzales took away or changed his job responsibilities and attests he continued to have the same responsibilities and duties throughout the time he worked on the Samsung project (App. 519). The further failure of Entegris to follow its own policies and procedure regarding performance documentation also supports a finding of pretext: • Entegris has a progressive discipline policy that provides for corrective action which can include verbal coaching, which may or may not be formally documented (App. 256-257; App. 343-344), a form on which to document verbal coaching, written disciplinary actions, and final written warnings (App. 360); • Managers are expected to document all disciplinary action about verbal/coaching (App. 194), but Seastrunk did not receive any written disciplinary action before he was put on a PIP (App. 194); • The stated goal of the Entegris disciplinary policy is to document performance issues and give notice to the employee about performance issues (App. 98), but Seastrunk was criticized in his 2015 performance review for matters not previously even brought to his attention (App. 13); • At no time in 2015 did Gonzales document any verbal disciplinary coaching or provide Seastrunk any written disciplinary action of any kind (App. 98), and to the extent he did “coaching, mentoring, or guidance” of Seastrunk, he admits that it was consistent with that he does for all employees (App. 98-99); • Seastrunk was given “improvement needed” sub-category ratings in the 2015 regarding project management goals, despite the Samsung project was up to date in terms of Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 48 of 58 PageID 1559 41 | P a g e documentation and he was the only Project Manager who had successfully transitioned his project information into Accolade (App. 14-15, 308, 373, 109). Not only did Gonzales fail to document alleged performance issues of Seastrunk prior to his placement on a PIP, HR Manager Schneider became aware of allegations of alleged poor job performance by Seastrunk only through Gonzales only when he requested the PIP. (App. 196, 201- 203, App. 205). She cannot recall if she even consulted Seastrunk’s performance documentation to see if a PIP was warranted (App. 205, 222) and she can’t recall a specific behavior that prompted Gonzales to request to put Seastrunk on a PIP (App. 226). The failure of Entegris to follow its own policies to document alleged performance deficiencies and to have documentation that would support the imposition of a PIP, is highly indicative of pretext. 3. Seastrunk Demonstrates Pretext Through Lack of Credibility of Gonzales’s Assertions of Seastrunk’s Alleged Poor Job Performance and Evidence of Discriminatory Bias. Seastrunk further evidences pretext through the lack of credibility of Gonzales and the reliance on his testimony that Seastrunk’s job performance was deficient. The factfinder is entitled to find witnesses who come across as lacking in credibility, appear to exaggerate complaints about the plaintiff, or appear to be attempting to justify a predetermined decision, as lacking in credibility. See Laxton v. Gap, Inc., 333 F. 3d 572 (5th Cir. 2003). See also, Ray v. Iuka Special Mun. Separate School Dist., 51 F. 3d 1246 (5th Cir. 1996) (in credibility dispute as to whether decisionmakers for the employer were aware of an EEOC complaint, the factfinder can find the employee’s witness more credible even though he could not identify who told him that the decisionmakers had knowledge of the EEOC complaint). Questions regarding the credibility of the defendant’s witnesses therefore create genuine issues of material fact regarding pretext. “The factfinder's disbelief of the reasons put forward by the Defendant (particularly if disbelief is Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 49 of 58 PageID 1560 42 | P a g e accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination,....no additional proof of discrimination is required.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In addition to the lack of documentation supporting Seastrunk’s alleged deficient performance, the performance allegation leading up to the PIP evidences was being set up for termination. Seastrunk first became concerned about such targeting when a co-worker, Mr. Harrison, told Seastrunk to watch himself because he had a “target” on his back. (App. 36). Then, on February 17, 2016, Seastrunk referred to a co-worker by his last name because there were two Patricks in the email string, so there would not be confusion about which Patrick he was referring to (App. 19-20, 380-381, 224). He was therefore taken aback when Gonzales accused him of being unprofessional. (App. 21, 380, 117). That criticism of Seastrunk for this incident was wholly overblown is evidenced by the fact managers at Entegris, including Schneider and Ramsey, sometimes referred to the Patrick’s by their last names and doing so was not out of the ordinary. (App. 20, 23, 521, 113-114). Moreover, it was common that Patrick Coyle was called by his last name by other employees. (App. 23). Even HR manager Schneider agreed that reasonable people could differ about whether calling someone by their last name is offensive. (App. 209-210). The inconsistency in testimony about whether Patrick Coyle or Patrick Lloyd complained about Seastrunk’s reference, without encouragement of Gonazles, also evidences pretext. Schneider testified that she directed Gonzales to ask Patrick Lloyd and Patrick Coyle if they were offended and Gonzales advised her Coyle was (App. 211), which is contradictory to Gonzales’ testimony, which was that both Patrick Coyle and Patrick Lloyd came to him on their own and said they were offended, and that he was not directed to talk to them to see if they were offended. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 50 of 58 PageID 1561 43 | P a g e (App. 113-116). That the incident was minor in nature is reflected in the fact Coyle never indicated to Seastrunk that he was offended (App. 21) and Seastrunk was not asked to apologize to him. Given the minor nature of the incident, Gonzales accusing Seastrunk of being unprofessional evidences his hostility toward Seastrunk, which Seastrunk had been sensing escalating over time due to the success of him as an African-American directing the Samsung project. (App. 22, 523-525) That Gonzales was hoping his accusation of unprofessionalism would encourage Seastrunk to quit is evidenced by the fact that within two minutes of Seastrunk sending the email requesting a transfer, Gonzales asked Seastrunk if he would transfer that day (App. 387); he told Schneider that the request for a transfer must mean Seastrunk wanted to terminate his employment; and he offered to come in the next day and sign necessary paperwork to terminate Seastrunk. (App. 213-214, 386, 118). The fact that Gonzales escalated a reference to another employee by their last name to a suspension of Seastrunk (App. 26, 391, 123), further evidences animus against Seastrunk by Gonzales, especially given that Seastrunk had never had any written disciplinary actions, or documented verbal coaching, at the time this incident occurred. (App. 126, 220-221). Finally, discriminatory animus of Gonzales is evidenced by the fact that just several days later Gonzales is indicating it is his “gut feeling” that Seastrunk will have to go on a PIP for the first time (App. 223-226, 391), when he had not previously written up Seastrunk. (App. 131). Subsequent submissions by Seastrunk regarding various potential ideas for projects by Seastrunk through the rest of his employment were rejected with harsh criticism and/or condescension. (App. 440-447, 448-449, 450-454). Discriminatory animus of Gonzales is also evidenced by his questioning of Seastrunk’s educational level. While Seastrunk had provided a transcript reflecting the master’s degree to Entegris when he commenced employment, he had not listed it on his resume (App. 526-530), he Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 51 of 58 PageID 1562 44 | P a g e did list it on the resume he submitted after he requested to transfer out of the group. (App. 219). After he submitted the resume Gonzales expressed “serious doubts” Seastrunk had such a degree (App. 146-147, 153, 410), and continually made references in documents to Seastrunk not meeting expectations that would be expected from an engineer with a master’s degree. (App. 439, 148, App. 450). Schneider also expressed that they had a “shared concern of education” regarding Seastrunk (App. 417, 251) and in an email indicated that in a meeting with Seastrunk they “also addressed concern of master’s in engineering, and he did not comment” (App. 417, 255-256). This questioning of Seastrunk’s academic credentials, when he had submitted a transcript relating to his education, evidences discriminatory animus against Seastrunk. Finally, discriminatory animus of Gonzales is shown by the imposition of additional white papers on Seastrunk and Mr. Jordan, the only other Black employee under Gonzales. (App. 242- 243, 64, 339). To Seastrunk’s observation only he and Jordan appeared to be assigned white papers (App. 18, 36), because Scherer was not part of the group when they had meetings about the status of white papers nor was he included on electronic meeting notices relating to meetings about the white papers (App. 17, 520), and Scherer had gotten a needs improvement regarding the writing of white papers on his review. (App. 466). Gonzales admits that some employees were assigned more white papers than others (App. 69), and he told Seastrunk and Jordan they he would not get additional pay in the form of a merit increase if they did not write additional white papers (App. 16-17), even though they both had already written three. (App. 17). This imposition of additional work on African-American employees in the group further evidences discriminatory animus. 4. Close Timing of Seastrunk’s Complaints and his Termination Evidences Pretext. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 52 of 58 PageID 1563 45 | P a g e As noted supra, in regard to the evidence put forth in regard to causal connection, Seastrunk’s evidence indicates that after he submitted a discrimination complaint March 18, 2016, that Gonzales had determined by April 13, 2016, that Seastrunk was failing the PIP (App. 248, 406, 153-154), and on April 25, 2016, he was terminated (App. 35, 160), just a little over one month later. The combination of suspicious timing with other significant evidence of pretext can be sufficient to survive summary judgment. Schakelford v. Deloitte & Touche, LLP, 190 F. 3d 398, 409 (5th Cir. 1999). This close timing is evidence of pretext. 5. Seastrunk Establishes Pretext Through Evidence of Inadequate Investigation of Seastrunk’s Complaints. The Fifth Circuit has held that inadequate or biased internal investigative process can indicate discrimination. Polanco v. City of Austin, 78 F. 3d 968, 980 (5th Cir. 1996). See, e.g., Sociedad Espanola De Auxilio v. NLRB, 414 F.3d 158, 163 (1st Cir. 2005) (lack of an adequate investigation, including not performing a thorough review of the paper record and not talking with employees likely to have knowledge of the matter, can evidence pretext); Pacheco v. New Life Bakery, Inc., 187 F. 3d 1055 (9th Cir. 1999) (inadequate investigation, including not interviewing employees likely to have knowledge and making findings in the investigation contrary to information solicited in the investigation, evidence pretext). Here, no adequate investigation was conducted in regard to Seastrunk’s complaint, which is indicative of discriminatory and retaliatory animus. Entegris maintains employment policies that prohibit race discrimination and a hostile work environment based on color or race. (App. 181, 58-59, 351, 143). Employees who believe they have received discriminatory conduct are supposed to report that conduct to a manager at Entegris. (App. 182, 59, 353-354), and are to be protected from retaliation for such reports. (App. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 53 of 58 PageID 1564 46 | P a g e 182-183; App. 354, 186, 59, 354). Reports are supposed to be investigated in a thorough manner. (App. 183, 353-354). Schneider concedes that if an employee reports they are being treated badly or unfairly, or differently than other employees, it is an HR manager’s duty to determine on ask the basis the employee believes they are being treated unfairly (App. 184-185), and if an employee indicates that they are being subjected to a hostile work environment it is of the manager to determine why they think their work environment is hostile. (App 186; App. 60). Here Seastrunk’s written complaint about the PIP complained: • It was unwarranted (App. 403-405, 138); • that Gonzalez was creating a hostile work environment forged by managerial intimidation and retaliation (App. 403, 232-233, 140, 521); • that his civil rights were being violated (App. 37, 403, 521); • that Gonzales is “retaliating against me and want me to leave his group due to disproportional treatment and him not providing comparative treatment” (App. 236, 403, 142, 521). • that only he and Mr. Jordan (the only other Black employee reporting to Gonzales), were the only ones being asked to write white papers and not getting to travel to see customers or vendors. (App. 521). Despite this complaint, Schneider did not conduct any investigation by talking to Seastrunk why he felt his work environment was hostile or why he felt he was not being treated comparatively to other team members, or why he felt his civil rights were being violated. (App. 37, 234, 237-238, 240). Gonzales also did not inquire of Seastrunk about what he felt as causing a hostile work environment. (App. 140-141). Schneider admits that she only discussed the complaint with Gonzales and Sirignano. (App. 244). Schneider’s testimony concedes that she did not follow Entegris policy to investigate Seastrunk’s complaints. Her reliance on the fact she was not certain the issues raised by Seastrunk in the rebuttal were valid (App. 241), makes no sense as the purpose of an investigation under the policies would have been to determine if such complaints were valid. Such lack of investigation pursuant to company policy evidences pretext. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 54 of 58 PageID 1565 47 | P a g e 6. Seastrunk Establishes Pretext by Evidence of Differential Treatment of other Project Managers. Pretext is shown by evidence that the employer treated other similarly situated individuals differently. See Ramirez v. Landry’s Seafood, 280 F. 3d 576, 577-578 (5th Cir. 2002). See, e.g., Garrison v. Tex. S. Univ., 2012 U.S. Dist. LEXIS 15912, at *17 (S.D. Tex. Oct. 23, 2012) (more favorable treatment of similarly situated individuals evidences pretext). Disparate treatment evidences an employer’s discriminatory intent, including s providing workers outside the protected class with more advantages. Uffelman v. Lone Star Steel Co., 863 F.2d 404, 408 (5th Cir. 1989). See, e.g., Glasmire v. Public Storage, 2013 U.S. Dist. LEXIS 64794, *18 (N.D. Tex. May 7, 2013) (summary judgment on age claim improper where the plaintiff presents evidence that the younger managers received more favorable treatment and the older worker was criticized for not using new technology); Miller v. Raytheon, 716 F. 3d 138, 146 (5th Cir. 2013) (evidence that employer deviated from its normal procedures and that similarly skilled younger employees were not treated the same as the plaintiff is circumstantial evidence of age discrimination). Seastrunk references the evidence of differential treatment of himself and Caucasian Project Managers referenced supra at 26-27. This evidence that the Caucasian Project Managers were treated more favorably than Seastrunk further evidences pretext. 7. The “Same Actor Inference” Does not Support Entegris’ Assertion that Seastrunk Cannot Establish Pretext in Regard to Race Discrimination or Retaliation. Entegris asserts that it is “entitled” to the “same actor” inference, which would allow a presumption of a lack of animus when the same actor that is responsible for the adverse employment action either hired or promoted the employee at issue. (D.’s Br. at 21). The "same actor" defense relies on the presumption that a decisionmaker with discriminatory animus is unlikely to hire someone in a group for which he has animus. It is equally obvious however, that Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 55 of 58 PageID 1566 48 | P a g e intervening factors, and the addition of other decisionmakers, may cause a change in the decisionmaker's intent. Even where applicable, the inference is simply one way for an employer to present evidence that non-discriminatory reasons motivated the conduct alleged discriminatory. The fact that the same individual made both decisions is simply evidence like any other and should not be accorded any presumptive value as the “same actor inference” neither rules out the possibility that an individual could prove a case of discrimination nor requires a court to ignore evidence of pretext. See Menefee v. McCaw Celluar Commc’n of Tex., 2003 Tex. App. LEXIS 2456, at *12 (Tex. Ap. – Dallas March 24, 2003, no p35.)(mem. op.). Here, the "same actor" defense is not applicable in any event because the hiring and termination decisions were not made solely by the same person. Seastrunk was hired solely by Gonzales, but his termination decision was approved by Gonzales, Schneider, Gellar, and Sirignano (App. 35, 38, 154-155, 160-162, 248- 250, 257, 265-266, 319-320, 414, 421), and Seastrunk was also told that Greg Graves, the Chief Financial Officer, participated in the decision to terminate him. (App. 38). Thus, here, there is a question of material fact about whether persons other than Gonzales were also responsible for the decision to terminate Seastrunk, such that the “same actor” inference is not applicable. See Eyob v. Mitsubishi Catepillar Forklift America, Inc., 2017 U.S. Dist. LEXIS 118574, *14-15 (S.D. Tex. July 28, 2017). Moreover, any such inference is rebuttable by other evidence of discrimination. Spear v. Patterson UTI Drilling Co., 337 Fed. Appx. 416, 422 (5th Cir. July 16, 2009). Indeed, because the court cannot can apply the same actor inference without weighing the credibility of the evidence of the movant, summary judgment cannot be granted based on a same actor inference if the plaintiff has provided sufficient evidence to raise a question of pretext. Jones v. R.G. Barry Corp., 2017 Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 56 of 58 PageID 1567 49 | P a g e U.S. Dist. LEXIS 39161 (W.D. Tex. March 17, 2017). Here Seastrunk provides sufficient evidence of pretext, as noted infra. 8. Assertions of Business Judgment do not Insulate Entegris from Discrimination and Retaliation Claims. Entegris further argues that the Court should not involve itself in second-guessing of business decisions. (D.’s Br. at 27-28). However, where the employer brings evidence that an employer did not terminate them for the reason the employer asserts, that is not second-guess the employer’s business judgment but permissibly challenging credibility. Laxton v. Gap, Inc. 333 F.3d 572, 585 (5th Cir. 2003). Where a jury could conclude that the employer’s proffered reason lacked veracity and that its true motivation was discrimination, the court must draw the inferences tha my be drawn from the contradictions, and let the jury determine the issue. Al-Habash v. Raytheon Co., 2016 U.S. Dist. LEXIS 1469325 (E.D. Tex. Oct. 24, 2016). Because here Seastrunk produces evidence that he was not terminated for the reason asserted by Entegris, and a jury could conclude that the reasons for his termination lacked veracity and that its true motive was therefore discrimination or retaliation, the Court must allow the jury to determine the issue. IV. CONCLUSION Plaintiff respectfully prays that this Court Deny Defendant’s Motion for Summary Judgment. Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 57 of 58 PageID 1568 50 | P a g e Respectfully Submitted, /s/ Jane Legler Byrne Christine Neill Texas Bar No. 00796793 cneill@neillbyrnelaw.com Jane Legler Byrne Texas Bar No. 03565820 jleglerbyrne@neillbyrnelaw.com Neill & Byrne, PLLC 3141 Hood Street, Suite 310 Dallas, Texas 75219 (214) 748-7777 (214) 748-7778 (facsimiles) Attorneys for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 9, 2018, a true and correct copy of the foregoing was served via the ECF system on counsel for Defendant: Michael H. Bell Andrew Majid Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8117 Preston Road, Suite 500 Dallas, TX 75225 /s/ Jane Legler Byrne Jane Legler Byrne Case 3:16-cv-02795-S Document 38 Filed 03/09/18 Page 58 of 58 PageID 1569