Opinion
3:01-CV-1906-P
October 31, 2002
MEMORANDUM OPINION AND ORDER
Presently before the Court is Defendant's Motion for Summary Judgment, filed June 7, 2002. Plaintiff filed a Response on September 10, 2002, and Defendant filed a Reply on September 25, 2002. This Court granted Plaintiff leave to file a Surreply on October 21, 2002. Plaintiff filed a Motion for Continuance on August 22, 2002. After reviewing the summary-judgment motion, the pleadings, the summary-judgment evidence, and applicable case law, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Continuance as MOOT.
I. Factual Background
William J. Burns holds a Ph.D. in computer sciences education. After interviewing with Richard Brannock and Ori Pomeratz of Check Point Software Technologies, Inc., ("Check Point"), he received from Brannock an oral offer of employment as a Level III Technical Support person in late October/early November 1998. Burns was 58 years old when he joined Check Point — a company whose employees were, generally speaking, substantially younger than employees protected by the ADEA. Burns soon became frustrated with this position because Check Point did not train him on the computer programs he needed to use to do his job effectively. He approached Brannock and expressed his belief that he was in the wrong job at the company. Brannock agreed.
In March 1999 Burns was reassigned to the training section, where he would teach Check Point customers how to use various company products. His new supervisor was Steve Guthrie, then 29 years old. Guthrie negotiated training contracts with customers, and was responsible for ensuring that the customer knew how the training room should be configured before the trainer arrived. Burns, as a Senior Trainer, was responsible for inspecting the classroom the night before the first day of training to confirm that the computer equipment had been properly configured.
Burns describes Guthrie's attitude toward him as one of "tolerance." Burns Depo. at 91. It was "cool at the beginning" and gradually became "rocky." Burns testified at his deposition that Guthrie would sometimes walk out of meetings with Burns for no reason whatsoever and not return. David Smith, the head of the courseware-development department at Check Point, stated that Burns and Guthrie had a "personality conflict." Smith Depo. at 29. Smith also stated that Guthrie "did not know how to manage people, didn't know how to treat them correctly." Id. at 30. Over the course of Burns' tenure in the training group, the relationship became so strained that Burns sought reassignment within the company.
An early problem arose shortly after Burns had surgery to repair an umbilical hernia in June 1999. Burns agreed to work from home on a project involving the development of training materials. Burns asked Guthrie to provide a "soft" copy of the company's instruction manual for the product, so he could use existing materials to create the training materials, rather than retype the content from scratch. Guthrie repeatedly told Burns that the manual was not available, one time raising his voice to say, "The file is not available, and that's it." Burns Depo. at 111. When Burns returned to the office, the project had not been completed, so Guthrie took Burns of the project and gave it to Greg Banks. Burns recalls visiting Banks' cubicle and observing the supposedly unavailable file on Banks' computer. Banks told him that he had downloaded the file from the server by using a user I.D. and password. Burns remembers being extremely angry about the incident, but he did not confront Guthrie or his supervisor Stephanie Meek.
Nothing in the summary-judgment evidence indicates that Guthrie knew that Burns could have accessed a soft copy of the existing materials in the way Banks did.
Guthrie testified that "several people" told him that Burns threw a tantrum, "screaming at the top of his lungs in his cube about how Check Point sucked and how Check Point — just a lot of derogatory, I guess, comments about Check Point and the people in it." Guthrie Depo. at 35. Guthrie claims that, when he confronted Burns about the incident, Burns "basically just screamed at me about the ineptitude and how I — I don't know, I don't remember the whole conversation. Just, basically, I know that in the end of it, he — he looked like he was about to hit me . . ." Id. The Performance Review Detail dated July 7, 1999, mentions a complaint about Burns' screaming, but makes no mention of Burns' demeanor during the meeting held to discuss the complaint. See Pl.'s Ex. 18. Burns does not recall these events.
The summary-judgment evidence indicates that these events transpired not long after Burns experienced problems with a training session held at Sun Microsystems in Manchester, England. Guthrie negotiated a contract with Sun for Check Point to deliver "the standard customer-oriented training course," but, according to Burns, "the people at Sun Microsystems had requested support-readiness training." Burns Depo. at 94. The attendees were "middleweights" if not "heavyweights" and "the last thing that they needed was the customer-oriented introductory training classes." Id. at 95. When Burns called Guthrie in Dallas to find out what to do about the mix up, Guthrie told him to teach the course Sun had contracted for. Id. at 97. Testified Burns, "The attendees said that I did a good job teaching what I taught, but it wasn't what they wanted." Id. at 99. When he returned, Guthrie met with Burns to discuss complaints that Burns declined to answer questions about an older version of the software, that Burns had fallen asleep in the class, and that Burns failed to set the classroom up properly. See Pl.'s App., Ex. 15 16 (e-mail from Sun employee collecting feedback from persons attending Burns' class). Burns testified that he does not remember this meeting. At his deposition, Burns could not recall any complaints about his failure to answer questions about the older software, does not recall falling asleep in class (although if he did, it must have been the jet lag), and stated that the room was set up properly. See Burns Depo. at 100-102.
In late September 1999, Burns experienced problems with a training event held at Nokia's facilities in Redwood City, California. When he arrived, he had trouble getting into the building to verify the classroom set up because he could not reach the contact person. He eventually got into the classroom, but the computers were not properly configured. It took several hours to install the training materials onto the computers. The next day, the students arrived, but all but one lacked the proper background for the course Burns was to teach. Burns attempted to overcome their ignorance of many issues, not to mention the interruptions of a self-professed troublemaker. Burns testified that "on at least a couple of occasions, I ran into some technical difficulties with the systems in the lab," but neither Nokia's technicians nor Burns himself were able to resolve the problems. Burns told Guthrie that the problems were not resolved because he had mistaken a woman for a man and called her "Sir." Guthrie Depo. at 36. At one point, after one day's class had ended, Burns and some students discussed their problems with the course. During the discussion, which lasted about an hour and a half, communications between teacher and students broke down: "I just couldn't get through to them what I was trying to tell them. They were trying to do it wrong, but they wouldn't listen to what I was saying." Burns Depo. at 139. Burns became frustrated, and admits he "probably got loud" with the students. Check Point received a complaint about the Nokia course from Michael Badarak. Burns denies ever having any interaction with or even meeting Mr. Badarak.
Guthrie was not pleased with Burns' performance in California. Kelly Garrett overheard Guthrie complain about Burns by telephone to someone he called "Steph" or "Steffy" (presumably Stephanie Meek). Referring to the training session at Nokia in California, Guthrie said, "That old fart f---ed everything up." When Guthrie noticed Garrett was listening, he said, "Yeah, Bill Burns f---ed it all up. What are we going to do about this?" Garrett Aff. ¶ 8. When Garrett asked Meek about the Nokia situation, Meek told him that "we seem to be having `generational problems'," apparently referring to Guthrie's interaction with Burns. Id. To Garrett, such language from Guthrie was nothing new. In his affidavit, Garrett averred that Guthrie often spoke of older people as "old fossils" and called a customer an "old fart." Id. ¶ 9. At one time, Guthrie made a "horrible facial expression when an older gentleman who used a cane walked by us during one of our smoke breaks." Id. Guthrie and Meek deny Garrett's claims.
On October 5, 1999, Guthrie, Meek and Burns met to discuss the problems at the Nokia course and other issues. Accused of interviewing for another job on company time, Burns denied ever doing so, and explained that the phone call at issue concerned arrangements to tutor a student after hours. Told he was not meeting the 75% travel time requirement, Burns said he was unaware of any such requirement, expressed a willingness to travel, and noted that it was Guthrie's responsibility to schedule him to travel. Informed he had a negative attitude, he stated he was aware of only a couple of occasions that might be perceived as negative. Burns claims he mentioned to Meek that Guthrie had previously walked out of meetings with Burns without explanation. Burns testified that Guthrie admitted at the October 5 meeting that he had anticipated problems with the Nokia and Sun classes.
Burns also recalls two incidents involving courses taught in New Hampshire and Estonia where technical problems led to student complaints. Although Burns suspects otherwise, the summary-judgment evidence does not indicate that Burns was held responsible for these problems.
On April 5, 2000, Burns taught a class at Check Point's Grand Prairie facilities. There were twenty students in the class, but not enough machines for everyone. About thirty minutes into the class, while Burns was explaining something to the students, Guthrie arrived to install additional systems in the back of the room. "He asked me if it would bother me if they were back there doing that installation, and I said yes. He was both a visual and verbal distraction to me." Burns Depo. at 164. Guthrie asked Burns to speak to him outside the classroom. Once outside, says Burns, Guthrie "started chewing me out." Id. at 166. After Guthrie left, a colleague who overheard the exchange asked Burns, "Are you going to stand there and take all that? . . . Why don't you just slug him in the mouth?" Id. at 167. Burns returned to his classroom, but was visibly upset. "I was really flubbing the training assignment because I was so upset. They had to call another trainer in." Id. at 168.
Guthrie's recollection of this event is completely different from Burns'. Guthrie claims that "Burns told me to get out of the room. Then when I — and the — in the room, explained to him that I was trying to help the situation, he told me he didn't care, that I needed to get the hell out of his room." Guthrie Depo. at 37. Later in his deposition, Guthrie stated, "Bill Burns came up to me and said, `You're distracting my class. Leave,' to which I replied, "I'm trying to help you configure these computers.' And he said, `I don't care, you're bothering my class. Get out." Id. at 128-129. Guthrie later said, "I don't remember his exact response, but basically, `I don't care. I don't appreciate you being in my classroom right now while I'm working. You need to get out.'" Id. at 130.
The next day, Burns sent a memorandum by electronic mail to Guthrie. He wrote, "You will not call me out in public or in private again without response, and the response will be made in public." Id. at 178. He also wrote you to Guthrie, "[I]mproper planning on your part doesn't create an emergency on mine." Id. Though Guthrie described the e-mail as "scathing," he also stated that he did not consider it an act of insubordination by Burns. Guthrie Depo. at 38 136.
Nonetheless, Burns — who had already requested a transfer to another department because his relationship with Guthrie had become untenable — was transferred to the courseware-development group, which was headed by David Smith. Guthrie and Meek would have preferred to have fired Burns, but Smith thought he would be "indispensible" as a courseware developer. Smith Depo. at 62. Meek expressed concerns that Burns' salary was too high for a courseware developer. Id. Burns worked primarily with Mark Hoefle on a manual for training class on the VPN-1 appliance. Some employees working on the VPN-1 manual complained that Burns did not like to receive help from other team members, and Smith — in a passing conversation in the hallway — spoke to Burns about the importance of team work. Smith testified that Burns did not improve his teamwork after this discussion.
At some point, Burns was attempting to connect two appliances so that one would take over the responsibilities of the other in the event one appliance failed. Burns "solve[d] the problem," tested it, and found that it worked. Burns Depo. at 195. Smith tells a different story, in which Burns did not solve the problem. When Burns' solution failed, Smith recalls Burns saying, with an edge to his voice, that Smith had not read the instructions correctly. Smith Depo. at 46 49. Smith also stated, "[Burns] believed that the lab was correct. Through the testing it turned out to be incorrect. He did not accept that, that he was wrong." Id. at 47. When asked whether anyone indicated to him that he had used the wrong gateway, Burns stated that he did not remember any such statement. Burns admitted only that he voiced his frustrations in finding a solution to Smith, and denied suggesting that Smith "screwed up the setup." Burns Depo. at 197.
On June 26, 2000, the courseware-development team was working long hours to complete the VPN-1 manual. Because his computer was running another system, Burns logged onto a workstation assigned to Joey Witt and conducted research on the Internet. During his search, he found a screensaver, which he proceeded to download onto Witt's computer. According to Witt, Burns asked him to send him the screensaver the next day, but Witt declined because he was busy with the VPN-1 project. According to Burns, Witt raised his voice and adopted "a very moralistic and highbrow attitude in giving me his answer." Burns Depo. at 203. On the 28th, Burns attempted to log onto Witt's machine to retrieve the screen saver, but was unable to log on. Burns believed that Witt had, contrary to company policy, locked him out of the workstation. Witt — "angry . . . and against [his] better judgment" — deleted the screensaver. See Pl.'s Ex. 23. On the 29th, Jamie Barrios asked Witt if he had attempted to lock anyone out of his workstation. Witt told Barrios that he had not altered his workstation. While Barrios investigated, Burns stood up and announced that Witt had locked him out of the workstation. An argument ensued. The summary-judgment evidence is conflicting with respect to the details of the argument, but Burns denies cursing or threatening to go to human resources or saying (in coarse terms) that Witt acted the sycophant to the team leader. See Pl.'s Ex. 23, App. 512. Burns told Witt that he felt isolated from the other members of the courseware development group. Burns Depo. at 208. Burns stated in his deposition that he was visibly agitated and probably flushed. Trudy Julius escorted Burns to her cubicle to defuse the situation; "she was very instrumental in calming me down," said Burns. Id. at 210.
Burns met with Smith, Meek and Rodger Nichols on July 5, 2000. Meek told Burns he was being terminated. Meek remembers Smith telling Burns that the decision was based on the incident with Witt and Burns' disrputive behavior. Meek Depo at 56. Smith recalls telling Burns he was being terminated because his performance was not what it needed to be. Smith Depo at 65. Burns does not recall there being any explanation for his firing. Burns Depo. at 211-213. He apologized and took responsibility for his behavior. See Burns Aff. ¶ 41; Smith Depo. at 90-91. Witt admitted that he should not have deleted the screensaver and should not have handled the incident in the way he did. Smith Depo. at 57-60; Pl.'s App., Ex. 23. But Witt was not terminated, merely cautioned. Burns believes that this disparate treatment constitutes unlawful age discrimination.
Burns also believes that the decision to fire him predated the incident with Witt. Guthrie, the evidence suggests, may have harbored prejudice against Burns because of his age, and virtually everything Meek knew about Burns came from Guthrie. Meek and Guthrie were ready to fire him after the incident at the onsite training session in April 2000. But Smith thought Burns would be indispensible as a courseware developer. So, even though Meek expressed concerns about putting someone with Burns' salary into the courseware group, Burns was assigned him to assist with the completion of the manual for the VPN-1 appliance. Sometime in June, Check Point made Anna Langley a salaried courseware writer. Burns believes that Check Point switched Langley from contract labor to full-time employee to ease the transition that would become necessary when the company let him go upon the completion of the VPN-1 project. The incident with Witt, Burns posits, merely provided an earlier opportunity to get rid of him. After Burns' termination, Check Point never hired anyone to replace Burns, even though the entire courseware team was working long hours to complete the VPN-1 book.
Burns filed a charge of age discrimination against Check Point with both the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR") in October 2000. He received a right-to-sue letter from the EEOC on June 28, 2001, and a notice of right to file a civil action from the TCHR on August 21, 2001. He filed the present suit against Check Point on September 25, 2001, asserting claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), and the Texas Commission on Human Rights Act, Tex. Labor Code § 21.051(1). Burns seeks lost wages and benefits, liquidated damages, attorneys' fees and costs under the federal law as well as lost wages and benefits, nonpecuniary losses, punitive damages, reasonable attorneys' fees and costs under Texas law.
The Complaint also asserts a claim of retaliation under Tex. Labor Code § 21.055.
Defendant Check Point has moved for summary judgment. Defendant maintains that Plaintiff cannot "raise a fact issue about whether Check Point lied when stating the reasons for his termination, much less, whether age was a determining factor in its decision." Def.'s Mot. at 3. In response, Plaintiff presents evidence he believes demonstrates that the reasons given for Burns' termination were tainted by the age bias of one of his supervisors or were otherwise not believable.
II. Legal Standards
A. Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett., 477 U.S. 317, 323 (1986). The moving party bears the burden of identifying the basis for its belief that there is an absence of a genuine issue for trial, and pointing out those portions of the record that demonstrate such an absence. Id. Once the movant has made this initial showing, the nonmoving party must present competent summary-judgment evidence to show a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Such evidence consists of specific facts that show a genuine fact issue, such that a reasonable jury might return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). But mere conclusory statements, speculation, and unsubstantiated assertions are insufficient to fend off a motion for summary judgment. Anderson, 477 U.S. at 248-50; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993).
If the nonmoving party fails to present probative evidence with respect to an essential element of his case, on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Admin. Central S.A., 776 F.2d 1277, 1279 (5th Cir. 1985). But if the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1999).
B. Age Discrimination
In an age discrimination case, the material fact typically at issue concerns the defendant's discriminatory intent. When a plaintiff alleges disparate treatment based on age, "liability depends on whether the protected trait actually motivated the employer's decision. . . . That is, the plaintiff's age must have `actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). Plaintiffs must ultimately prove intentional discrimination, by direct or indirect evidence. Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). When a plaintiff presents evidence that a decision maker harbored negative attitudes based on age, and creates a genuine fact issue as to whether such bias actually played a determinative role in the challenged employment practice, summary judgment should be denied. See Reeves, 530 U.S. at 141.
If direct evidence is unavailable or if the evidence of age-based animus cannot be "attributed to all of the individuals responsible for making the employment decision" at issue, then the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas burden-shifting framework. Evans v. City of Bishop, 238 F.3d 586, 590, 592 n. 11 (5th Cir. 2000); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). To defeat a motion for summary judgment, a plaintiff relying on circumstantial evidence must first establish a prima facie case of discrimination. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). A prima facie case under the ADEA is established if the plaintiff provides evidence that he: (1) was discharged; (2) was qualified for the position; (3) was within the protected age class — over 40 — at the time of discharge; and (4) was either replaced by a younger person or by a person outside the protected class, or otherwise discharged because of her age. Russell, 235 F.3d at 223-24. Once established, the prima facie case raises a presumption of discrimination, which the defendant may rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). This burden on the employer is one of production only, not persuasion, and involves no credibility assessments. Reeves, 530 U.S. at 142 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id. at 142-43.
Because the plaintiff bears the burden of persuasion on the issue of discriminatory intent, the plaintiff must present evidence sufficient to support an inference of unlawful discrimination. Id. at 143. Where the plaintiff relies on circumstantial evidence to make his case, he can pursue this objective by showing that the defendant's legitimate nondiscriminatory reason is merely pretext. Id. Pretext can be demonstrated by various types of proof. Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989). One way of doing so is to demonstrate that the legitimate reasons offered by the defendant were "unworthy of credence." Tex. Dept. of Comm'y Affairs v. Burdine, 450 U.S. 248, 256 (1981). Other evidence bearing on the issue of pretext might include the defendant's treatment of the plaintiff before the time frame of the current dispute; the defendant's reaction to plaintiff's "legitimate civil rights activities;" and the defendant's "general policy and practice with respect to minority employment." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). Noting that "[t]here are certainly other ways in which [a plaintiff] could seek to prove that [the defendant's] reasons were pretextual," the Supreme Court has indicated that courts should not limit plaintiffs to a precise manner of proving pretext. Patterson, 491 U.S. at 188 (district court erred by requiring jury to find that plaintiff made a particular showing).
This is not to say that a plaintiff automatically survives a motion for summary judgment by presenting any proof of pretext, no matter how meager. See Reeves, 530 U.S. at 148; Russell, 235 F.3d at 223. There may well be instances where the fact issue raised by the plaintiff on the truthfulness of the defendant's explanation is too weak to give rise to an inference of discrimination in light of a record that is replete with uncontroverted, independent evidence that no discrimination occurred; or the record might conclusively reveal some other nondiscriminatory reason for the defendant's decision. Reeves, 530 U.S. at 148. It is wise to note, however, that such demonstrations — so conclusive as to justify taking the issue out of the jury's hands — are likely to be "uncommon" or "atypical." Id. at 154-155 (Ginsburg, J., concurring).
In sum, a nonmoving plaintiff can defeat a motion for summary judgment in two ways. One is by creating a fact issue concerning direct evidence of discriminatory intent. The other is by submitting evidence which, taken as a whole, creates a fact issue as to whether the employer's stated reasons actually motivated the employer. Factors relevant to this inquiry include "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).
C. Defendant's Bases for Summary Judgment
Defendant's Motion for Summary Judgment asserts that the evidence adduced by Plaintiff "does not raise a fact issue about whether Check Point lied when stating the reasons for his termination . . ." Def.'s Mot. at 3. "Check Point's summary judgment evidence establishes that Burns was terminated due to consistent, documented performance problems and an inability to work effectively with others." Id. at 8. Thus, the question presented by Defendant's motion is this: Does Plaintiff's evidence cast doubt on Defendant's truthfulness or otherwise indicate age bias on the part of a decision maker such that a fact issue exists as to Defendant's discriminatory intent?
III. Plaintiff's Evidence Fails to Raise a Fact Issue as to Discriminatory Intent
Defendant first avers that Plaintiff has no direct evidence of age discrimination. Def.'s Br. at 7. Second, assuming that Plaintiff can assert a prima facie case of age discrimination under the McDonnell Douglas burden-shifting framework, Defendant maintains that legitimate, nondiscriminatory reasons support its decision to terminate Plaintiff's employment. Id. Plaintiff "was terminated due to consistent, documented performance problems and an inability to work effectively with others." Id. at 8. The "consistent performance problems" cited by Defendant in its answer to Interrogatory 1 include failure to meet assignment deadlines, negative attitude, inadequate preparation for training sessions, insubordination, inability to work effectively with team members, and poor customer relations. Pl.'s App. at 404. In its brief supporting the motion for summary judgment, Defendant focuses on three purportedly "uncontroverted" facts that constitute legitimate, nondiscriminatory reasons for terminating Plaintiff. First, Defendant claims that Plaintiff "[c]hastised a supervisor in front of training-session attendees while conducting a training class." Def.'s Br. at 8. Second, Plaintiff "[r]esisted working in a collaborative way with team members . . ." And third, Plaintiff "[v]erbally accosted and abused a fellow employee." Without making any credibility assessments, the Court finds that the proffered reasons for the Plaintiff's discharge satisfy the Defendant's burden here.
Defendant does not controvert Plaintiff's ability to establish a prima facie case. The Court finds that the facts support Plaintiff's claim of prima facie discrimination, and that Defendant is obliged to articulate legitimate nondiscriminatory reasons for its decision to terminate Burns' employment.
Once the employer carries its burden of production, "the mandatory inference of discrimination created by the plaintiff's prima facie case drops out of the picture." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). Ultimately, the burden is on the plaintiff to show, by a preponderance of the evidence, that the employer actually relied on age in making its employment decision and that age was the determinative factor in the employment decision. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). At the summary-judgment stage, however, the plaintiff need only show that there is a genuine question concerning the material facts defendant claims are not at issue. In attempting to satisfy his burden, Burns brings direct and circumstantial evidence.
A. Direct Evidence
To demonstrate that a genuine issue of material fact exists as to age discrimination, Plaintiff presents evidence that Guthrie — his supervisor while he was a trainer — harbored discriminatory attitudes toward older persons. The affidavit of Kelly Garrett states that Guthrie said, in reference to the training session at Nokia, "That old fart f---ed everything up," and "Yeah, Bill Burns f---ed it all up." Garrett Aff. ¶ 8. Garrett also averred that Guthrie spoke of older people as "old fossils" and called a customer an "old fart" and made a "horrible facial expression when an older gentleman who used a cane walked by us during one of our smoke breaks." Id. ¶ 9. Guthrie denies using such terms with respect to Burns. Guthrie Depo. at 94. When Garrett asked Meek about the Nokia situation, Meek told him that "we seem to be having `generational problems'," apparently referring to Guthrie's interaction with Burns. Garrett Aff. ¶ 8. Meek denies ever hearing Guthrie refer to Burns as an "old fart" or "old fossil" and denies using the term "generational issues" when referring to Burns' and Guthrie's relationship. Meek Depo. at 22-23. A genuine fact issue exists as to whether Guthrie harbored negative attitudes toward Burns because of his age. Whether the fact issue is material is another question. It is material only if it can support a reasonable inference that the decision to terminate Burns was tainted by such prejudice.
Defendant urges the Court to apply the Fifth Circuit's stray-remarks jurisprudence and find Guthrie's remarks and Meek's disputed admission to lack probative value as regards the motive underlying Burns' discharge. Defendant cites the four-part test introduced in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) as the standard for judging the probative value of these remarks. "Remarks may serve as sufficient evidence of age discrimination if the offered comments are: 1) age related; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue." Id. at 655. Defendant notes that Guthrie's remarks were neither proximate in time to Burns' termination nor made by a person with authority over Burns' termination. Defendant also maintains that Meek's remark was remote from the decision to fire Burns and does not indicate age-related bias on her part. Consequently, "Burns has no direct evidence of age discrimination." Def.'s Reply at 5.
Reeves corrected the Fifth Circuit's improper requirement that evidence of discriminatory animus be "in the direct context" of the adverse employment action. See Evans, 238 F.3d at 591. The Fifth Circuit has taken the Supreme Court's rebuke to heart and warned that its "pre- Reeves jurisprudence regarding so-called `stray remarks' must be viewed cautiously." Russell, 235 F.3d at 229. But this is not to say that the case law is to be jettisoned. Russell interprets the stray-remarks cases to caution courts not to put undue emphasis on the mere fact that someone made a derogatory remark. In the words of the Seventh Circuit's Judge Posner: "All that these [stray-remarks] cases hold — and all they could hold and still make any sense — is [this:] the fact that someone who is not involved in the [challenged] employment decision . . . expressed discriminatory feelings is not evidence that the decision had a discriminatory motive." Hunt v. City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir. 2000) (quoted in Russell, 235 F.3d at 229). It is different story when the evidence permits the inference that the actual decision makers were influenced by someone else's prejudice: "[A] defendant may be held liable if the manager who discharged the plaintiff merely acted as a rubber stamp, or the `cat's paw,' for a subordinate employee's prejudice, even if the manager lacked discriminatory intent." Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (quoted in Russell, 235 F.3d at 227). "If the employee can demonstrate that others had influence or leverage over the official decisionmaker, . . . it is proper to impute their discriminatory attitudes to the formal decisionmaker." Russell, 235 F.3d at 226.
Guthrie did not participate in the decision to terminate Burns, and his remarks cannot be characterized as those of a decision maker. Thus they are not direct evidence of a discriminatory motive behind Burns' firing. Burns believes that Guthrie and Meek were close, personal friends. Burns Depo. at 114-15. Though Defendant denies that Meek "acted as Guthrie's proxy," Plaintiff argues that Meek had no personal knowledge of the late project, Burns' willingness to travel, customer complaints, or Burns' supposed inflexibility. In short, Plaintiff suggests, Meek's only source of information concerning Burns' experience as a trainer was Guthrie, and her opinion of Burns was necessarily colored by Guthrie's. But the only evidence indicating that Guthrie and Meek were close friends consists of Burns' personal impression; the summary-judgment evidence reveals no specific facts to support Plaintiff's claim of influence or leverage. See Russell, 235 F.3d at 228 (discriminatory remarks were made by a man whose father — as CEO of a parent company — controlled the decision maker's budget); Evans, 238 F.3d at 591 (employment action had to be approved by the city council, one of whose members had made racially derogatory remarks); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996) (reading evidence in light most favorable to plaintiffs, court assumed decision maker "rubber stamped" the recommendations of subordinates); Haas v. Advo Sys., Inc., 168 F.3d 732, 734 (5th Cir. 1999) (record did not support claim that subordinates exerted no influence and inference must be to the contrary). Assuming that Guthrie made the remarks attributed to him, the Court finds that Plaintiff has nonetheless failed to present evidence that would lend those remarks any probative value on the question of Defendant's discriminatory intent.
B. Circumstantial Proof of Pretext
Burns also contends that summary judgment is inappropriate under the burden-shifting approach of McDonnell Douglas. When the defendant articulates a legitimate, nondiscriminatory reason for its decision, the presumption of discrimination raised by the plaintiff's prima facie case disappears. Russell, 235 F.3d at 222. The plaintiff may then create a fact issue as to whether the employer's articulated reasons are pretext for unlawful discrimination. Reeves, 530 U.S. at 143.
A. Plaintiff Fails to Cast Doubt on Defendant's Nondiscriminatory Reasons
Pretext may be demonstrated by presenting evidence that tends to show that defendant's explanation is false. See Reeves, 530 U.S. 144, 147 ("proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive"). Defendant asserts that Plaintiff's "[summary-judgment] evidence must demonstrate that Check Point's reasons for terminating his employment are so patently false or mendacious that age discrimination is a reasonable inference." Def.'s Mot. at 3. See also Def.'s Br. at 10 12. Though Defendant cites Reeves for this standard, the terms "patently false or mendacious" grossly overstate Plaintiff's burden. In Reeves, the plaintiff "cast doubt" on the employer's proffered reasons for terminating him; indeed, the plaintiff's "showing" in Reeves happened to be "substantial." See 530 U.S. at 144-145. Plaintiff need only present evidence sufficient to suggest that Defendant's stated reasons are false.
The Fifth Circuit's use of the words "patently false" in Vadie v. Miss. State Univ., 218 F.3d 365, 374 (5th Cir. 2000), to describe the evidence found sufficient to create a fact issue in Reeves is dictum in its purest form. And, as far as this Court can tell, the only time the Fifth Circuit has even used the word "mendacious" in any proximity to a discussion of pretext is in the panel opinion overturned by the Supreme Court in Reeves. See Reeves v. Sanderson Plumbing Prods., 197 F.3d 688, 693 (5th Cir. 1999), reversed 530 U.S. 133 (2000).
Defendant also argues that any inference of discrimination is unreasonable where the person terminating an employee is the person who hired the employee in the first place. Def.'s Reply at 11. Under the "same-actor doctrine," a contrary "inference that age discrimination was not the motive behind [the] termination" arises under such circumstances. Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (citing Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)) (emphasis added). According to Defendant, Meek made the decision to transfer Burns to the courseware-development group, and Meek decided to terminate Burns' employ. Defendant offers no authoritative or persuasive case law to support its contention that merely permitting an interdepartmental transfer of a current employee gives rise to the so-called Proud inference. The Court believes that the decision to transfer a current employee is qualitatively different from the desire to hire someone in the first place; it is entirely plausible that a person would allow a current employee to transfer between departments under her supervision despite an antipathy for a protected characteristic. The Court thus declines to extend the doctrine to the facts of this case.
Court chooses not to follow Garcia v. Fulbright Jaworski, L.L.P., 3 Wage Hour Cas.2d (BNA) 742 (S.D. Tex. 1996). Garcia applied the Proud inference where an employee was hired, transferred, and fired within a twenty-six month time frame. Assuming that interdepartmental transfers fall within the same-actor doctrine, the facts in Garcia fail to show that the person who decided to transfer the plaintiff was the same person who decided to terminate her employment. Garcia's blanket application of the doctrine is not persuasive.
Although the Court is not persuaded to apply the same-actor doctrine to Meek, the facts support its application to Smith. The record indicates that Smith urged Meek to allow Burns to transfer to Smith's department after the April 2000 incident with Guthrie. It "hardly makes sense" to impute age bias to Smith's recommendation that Burns be fired when Smith prevented his termination only weeks before. See Proud, 945 F.2d at 797. To be probative on the issue of discriminatory intent, Plaintiff's evidence must overcome the Proud inference with respect to Smith.
Plaintiff has not presented summary-judgment evidence that casts doubt on the truthfulness of Defendant's proffered reasons for terminating him. In reviewing the evidence, the Court has "disregard[ed] all evidence favorable to [Defendant] that [a] jury is not required to believe. . . . That is, the [C]ourt [has given] credence to the evidence favoring [Plaintiff] as well as `evidence supporting [Defendant] that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses." Reeves, 530 U.S. at 151 (quoting Anderson, 477 U.S. at 300). See also Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs, Inc., 293 F.3d 912, 918 (5th Cir. 2002).
Defendant listed six reasons for terminating Burns in its answer to Interrogatory 1. First, Defendant asserts that Burns failed to meet deadlines. The record indicates only one incident involving Plaintiff's failure to submit a project in a timely manner. Plaintiff's deposition testimony indicates that Guthrie did not give Burns the tools he needed to complete the project in a timely manner. What is missing from the summary-judgment evidence, however, are specific facts indicating that Guthrie knew that the materials could have been accessed using a password and identification number. Plaintiff's suppositions are insufficient to create a fact issue here.
Second, Defendant cites Plaintiff's inadequate preparation. The record indicates only one incident involving Plaintiff's failure to prepare for a class. Plaintiff does not deny this. He merely explains that he was ill and that he and Guthrie agreed that he would notify Guthrie should such a circumstance arise again. Plaintiff's evidence does not cast doubt on the veracity of this reason.
The third reason given for Plaintiff's termination is insubordination. This reason no doubt refers to the April 2000 incident involving Burns and Guthrie. Though Defendant refers to "undisputed evidence," Plaintiff's deposition testimony presents a version of the events that contradicts Guthrie's story in almost every particular. Plaintiff claims that he told Guthrie "he was both a visual and physical distraction to me while I was teaching." Burns Aff. ¶ 32. Taking Plaintiff's version as true, the Court believes that a reasonable employer could consider Plaintiff's statements to be insubordinate (or at least indicative of a negative attitude or an unwillingness to work as a team player). Plaintiff's evidence does not lead to the conclusion that this legitimate, nondiscriminatory reason is untrue.
Defendant offers as a fourth reason for the termination Plaintiff's alleged negative attitude. Defendant does not elaborate on this basis for terminating Plaintiff, but Guthrie's deposition suggests that Burns complained rather loudly about the company and Guthrie to co-workers, and the record indicates that Guthrie spoke to Burns about this "outburst" in July 1999. In his deposition, Burns expressed that he had no recollection of that occurrence. Plaintiff's failure to remember an event is, by itself, insufficient to impugn Defendant's impression that Burns had a negative attitude.
A fifth reason given for Plaintiff's termination was his poor customer relations. The summary-judgment evidence reveals two complaints about Plaintiff during his tenure as a trainer. One involved a course in England, where Plaintiff allegedly fell asleep in class and failed satisfactorily to answer questions about an earlier version of Check Point's software. Another involved a course in California, where Plaintiff admits he, in frustration, "got loud" with the students. Plaintiff explains his side of the story but does nothing to discredit Defendant's reliance on these complaints in deciding to terminate him. For example, he presents no evidence suggesting that the complaints were fabricated or that Defendant mischaracterized or misconstrued the nature of the complaints. The Court notes that the complaints came from persons outside Check Point's employ. Defendant is entitled to believe what it wants concerning these complaints without having to worry about a court's second-guessing its judgment. In short, the record lacks evidence suggesting that Defendant did not actually rely on these customer complaints in terminating Burns.
Finally, Defendant maintains that Plaintiff demonstrated an inability or unwillingness to work as part of a team during his stint in the courseware development group. Plaintiff denies hearing any complaints about his performance while in the courseware group. Plaintiff's failure to recall any complaints is, by itself, insufficient to impugn Defendant's evidence of a failure to work collaboratively. In its Reply, Defendant states that the argument with Witt falls within this category of reasons for Plaintiff's termination. Though there appear to be some discrepancies in the record concerning the precise details of the incident, Plaintiff does not deny that the argument occurred. He admits that the exchange became heated and that it took some time for him to calm down. Plaintiff speculates that the decision to fire him antedated this incident, surmising that Smith only wanted him to help finish the VPN-1 manual, that his salary was considered too high for the courseware development group, that Anna Langley was hired as his replacement just weeks before the book was to be completed. But he fails to adduce specific facts that would lead a fair-minded fact finder to believe that the events underlying this legitimate, nondiscriminatory reason for firing him never transpired and, thus, that the reason is false.
In sum, the summary-judgment evidence reveals no specific facts suggesting that Defendant's given reasons for terminating Burns were not credible.
B. Plaintiff's Other Evidence of Pretext Fails to Give Rise to an Inference of Discrimination
In addition to arguing that Defendant's given reasons for terminating Burns were not credible, Plaintiff point to five other indicia of pretext. None is sufficient to create a fact issue about Defendant's allegedly discriminatory intent.
Plaintiff first suggests that Defendant has offered differing explanations for its firing of Burns: at one point Defendant relied on Burns' performance as a trainer, at another Defendant relied on the incident with Witt. Although shifting explanations can give rise to an inference of pretext where the employer changes its story, no such inference arises from the facts at hand. Cf. Sinai v. New England Tel. Telegraph Co., 3 F.3d 471, 474 (1st Cir. 1993) (over time, employer offered starkly different explanations: first it claimed no jobs were available, then that plaintiff was not qualified, then that it had adopted a no-spouse policy). In response to Interrogatory 1, Defendant gave general reasons for terminating Burns' employ; the summary-judgment elaborates on those reasons. The Court divines no inconsistencies in Defendant's explanation for Plaintiff's termination.
Another basis for inferring pretext, Plaintiff asserts, lies in Defendant's disparate treatment of Burns and Witt. While Burns was terminated for his role in the altercation, Witt — who admits that he behaved against better judgment — remains employed at Check Point. "Holding Burns to a higher standard than Witt is itself evidence of age discrimination." Pl.'s Resp. at 43 (citing Uffelman v. Lone Star Steel, 863 F.2d 404, 408 (5th Cir. 1989). Defendant correctly notes that plaintiffs claiming disparate treatment must demonstrate that the employees being compared were "under `nearly identical' circumstances." Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (quoting Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990)). Plaintiff has failed to present evidence indicating that Witt and Burns were similarly situated; to the contrary, the record indicates that Burns had been talked to concerning his attitude, teamwork, and interaction with customers, while Witt's record at the time of the screensaver incident was spotless. These facts do not give rise to an inference of unlawful discriminatory intent.
Plaintiff also encourages the Court to perceive pretext in Defendant's failure to give Plaintiff any written evaluation of his performance, its reliance on subjective criteria in judging his performance, and its failure to provide any kind of training to its supervisors with respect to age discrimination. Defendant is under no obligation to give written performance evaluations, and Plaintiff has presented no evidence that Defendant refrained from confronting Burns about his performance while giving regular feedback to other, younger employees. Cf. Vaughn v. Edel, 918 F.2d 517, 522-23 (5th Cir. 1990) (finding discrimination where failure to give negative feedback was motivated by desire to avoid charges of race discrimination). Defendant is also under no obligation to use purely objective criteria in evaluating an employee's performance. Plaintiff has presented no evidence suggesting that Defendant's explanation for its decision to terminate was based solely on subjective criteria. Cf. Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001) ("[A]n employer may not `utilize wholly subjective standards by which to judge its employees' qualifications and then plead lack of qualification when its promotion process . . . is challenged as discriminatory.'") (quoting Crawford v. Western Elec. Co., 614 F.2d 1300, 1315 (5th Cir. 1980)). Finally, although a judicious employer might be well advised to train her employees to avoid discriminatory employment practices, Defendant is under no legal obligation to do so.
In sum, Plaintiff alternative theories of pretext fail to create a fact issue concerning Defendant's intent in terminating Burns.
V. Conclusion
Plaintiff has failed to present evidence sufficient to raise a genuine issue concerning Defendant's intent in terminating Burns. The Motion for Summary Judgment is GRANTED. Plaintiff's Motion for Continuance is DENIED AS MOOT.
It is so ordered.