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MARTIN v. KROGER CO.
September 15, 1999
ELAINE MARTIN, PLAINTIFF,
THE KROGER CO. AND CHARLES HEMBREE, DEFENDANTS.
The opinion of the court was delivered by: Crone, United States Magistrate Judge.
Pending before the court is Defendants The Kroger Co. ("Kroger") and
Charles Hembree's ("Hembree") Motion for Summary Judgment (# 18). Kroger
and Hembree seek summary judgment on Plaintiff Elaine Martin's ("Martin")
claims of racial and sexual discrimination and retaliation under the
Texas Commission on Human Rights Act ("TCHRA") as well as tortious
interference with existing and prospective business relations. Having
reviewed the pending motion, the submissions of the parties, the
pleadings, and the applicable law, the court is of the opinion that
summary judgment should be granted.
Kroger is a retail grocery chain with a number of stores in the
Houston, Texas, area. Martin, an African-American female, began her
employment with Kroger in August 1992 in the company's management
training program after answering an advertisement for an engineering
position. Martin graduated from Prairie View A & M University in 1986 with
an electrical engineering degree. In March 1993, Hembree, the manager of
the Facility Engineering Department, offered her a position as a facility
In her affidavit, Martin describes how Hembree assisted her in securing
a position in Kroger's Engineering Department:
I . . . answered Kroger's classified ad for a Facility
Engineer. I spoke with Charles Hembree several times
about the job, and interviewed with a number of Kroger
employees. Hembree informed me that I had not been
selected to fill the vacancy, and that a person with
better qualifications than me had been hired.
However, Hembree asked if I would be interested in
training to become a store co-manager, which had no
relation to the engineering department. . . . I needed
work, in any capacity, and agreed to enter Kroger's
store management training program in 1992, even though
it was outside of my field and I had had no prior
training, background or experience in such a
While I was in Kroger's store management training
program, Hembree contacted me and asked if I was
interested in transferring to Facility Engineering.
The vacancy that Hembree contacted me about was the
same job that I had applied for and had been rejected
previously. T. Stevens Brown, the person that Hembree
had described to me as `better qualified,' was removed
from that position because he did not have an
engineering degree. (T. Stevens Brown, and I went to
the same college, and I know that he did not complete
his degree program.)
Martin began working as a facility engineer on March 21, 1993. In his
affidavit, Hembree explains his basis for offering her the position: "I
was aware that [Martin] did not have much experience in project
management or the retail industry; however, I felt Ms. Martin was capable
of gaining the knowledge necessary to become an effective manager and
Throughout her employment with Kroger, Martin's performance as a
facility engineer was problematic. Her first employee performance
appraisal, dated June 10, 1994, reflects below-average ratings in several
categories. One such category is "Leadership," which addresses how the
employee leads "individuals or groups to accomplish a task or accept an
idea; ability to help a group or an individual arrive at a solution or
goal." Martin's below-average rating of "Developmental" is followed by
comments stating, "Elaine has a rather forceful, directive style. This
has served her effectively without causing hostility in most cases. There
is room in her leadership style to develop a more participative [sic]
approach. She should understand the tasks of subordinates more
thoroughly." The "Personal Impact" category assesses the employee's
"[a]bility to create a good impression on others by commanding
attention, respect, and showing confidence." The comments following
Martin's "Developmental" rating read, "Elaine is able to gain impact but
usually has to do it through force of will. She must gain the reputation
of knowing what to do, how to do it, and when. By being knowledgeable in
these areas, the respect will follow." Finally, the "Problem Analysis"
category measures the employee's "[a]bility to identify, evaluate, and
assimilate factors essential to analyzing a problem for a solution."
Martin's "Developmental" rating is followed by comments stating, "Elaine
often fails to properly analyze a problem because she does not link all
sources of information together. She should ask more questions such as
`who, what, when, where, and how.' By listening to these answers, then
assimilate the data to see if it makes
sense." Hembree's affidavit offers additional insight into his June 1994
assessment of her performance:
At that time, I considered Ms. Martin to be still
relatively new to the department and to have issues
which were developmental in nature. In other words, I
felt that Ms. Martin's lack of knowledge and
experience in the retail construction field hindered
her from performing at a higher level. I apprised Ms.
Martin of certain deficiencies and the need for
education in business administration and construction
technology. I suggested Ms. Martin enroll in a seminar
on interpreting blueprints which she took in July
Hembree contends that he "remained optimistic that [Martin] could
overcome the knowledge deficit she had."
When Martin was evaluated one year later, on June 13, 1995, she
received more "Developmental" ratings, including below-average ratings in
"Leadership," "Personal Impact," and "Problem Analysis." The comments
following the "Leadership" category state, "Elaine has improved in this
area. Her style is still rather forceful and direct. She recently
completed `Models for Management' seminar. This should help her in the
future to develop a more participative [sic] style." Under the "Personal
Impact" category, the comments read, "Elaine displays a limited effect on
the direction or the decision making of others. She is not sought after
for input other than as needed to accomplish [the] task at hand. She does
have some impact because of a dominant type behavior but does not command
attention through confidence." Finally, the comments following the
"Problem Analysis" category state, "Elaine sometimes fails to see the
relevance of different factors in properly analyzing a situation. She
must continue to probe more deeply when developing a plan. Ask more open
ended questions. Discuss solutions to verify understanding."
A typed statement prepared by Hembree, signed by both Hembree and
Martin, is attached to the evaluation, stating:
During Elaine's early development in this department,
her knowledge of supermarketing, and construction was
very limited. These issues were discussed during the
last performance evaluation. She has worked hard to
try to learn these details and has made some
progress. Elaine must continue to develop these
I believe that Elaine can become an effective manager
in this department; however, she has developed an
impression in many managers that she lacks the
knowledge and skills necessary to adequately manage a
substantial remodel project. Although her project
results are of good quality, she does not get the
credit that she perhaps is due. Store managers felt
that they had to do more project administration than
necessary in order to complete their projects. Phone
calls, equipment follow-ups, scheduling of
merchandisers and other communication issues are
mentioned as hindrances to effective job performance.
There is some concern that Elaine does not place
enough priority on the importance of being available
or of maintaining contact with each project.
Unfortunately, these impressions precede her into her
next project assignment and as a result store
management may look for faults that might be
overlooked in someone without this reputation.
I continue to enjoy working with Elaine. I am somewhat
disappointed that even though there have been
improvements in several areas, I continue to receive
comments about her communications, her responsiveness
to stores, and her ability to control a project. Last
year, many of these comments could have been
overlooked due to the fact that Elaine was new to
Kroger and as yet had not fully learned all the facets
of her job. However, Elaine has spent six months in
the co-manager training program and then another two
years in Facility Engineering. These comments should
by now. The fact that they have persisted will make
the demands of Elaine's job even tougher than before.
The statement also refers to two seminars that Kroger arranged for Martin
to attend to further her education. These conferences provided training
to Martin in engineering and construction of retail stores and
supermarkets. By letter dated October 31, 1995, Hembree recommended that
Martin receive 250 stock options because her performance had
Due to an extended leave of absence in 1995, Martin did not receive a
performance evaluation in 1996. Hembree, however, describes Martin's
performance during this time period in his affidavit:
I found that she continued to display a limited
knowledge of supermarketing and construction with no
sign of improvement. . . . I was aware of several
instances in which she failed to order the correct
equipment for a project; she ordered duplicate
equipment; she ordered unnecessary equipment which had
to be returned; and, she failed to order the
appropriate sizes and types of equipment, which
resulted in delays.
Hembree also states that, despite her tenure, Martin continued to perform
at a level below that of the other engineers in the department.
Martin's evaluation dated May 30, 1997, again reflected "Developmental"
ratings, including below-average ratings in "Leadership," "Personal
Impact," and "Problem Analysis." Hembree's typed statement attached to
the evaluation elaborates on her performance:
Elaine will soon complete her fifth year in the
Facility Engineering department. She continues to be
assigned within the walls remodels and new store
projects. Her projects are usually on schedule and
[The] ability to be friendly and likable is a positive
attribute; however, when combined with her limited
knowledge of supermarketing and construction may
actually contribute to her lack of growth in these
areas. Elaine has had supporters — both within
Kroger and among our vendors — that have wanted
her to succeed. Believing that Elaine might not know
how her work affects the store's operation, or that
she might not know the technical aspects of
construction, these supporters have done what needed
to be done on her behalf to complete a project. . . .
As a result of this other departmental involvement,
her projects have succeeded. If Elaine were placed
into a situation where she did not have participants
that were knowledgeable and supportive, her current
level of knowledge would prevent her from delivering a
successful project. Her current projects could show
substantial improvement in both timing and costs if
Elaine were more knowledgeable about the items just
discussed. Elaine must spend a portion of each week
learning the technical aspects of her job if she is to
make continued progress.
The support that Elaine has enjoyed over her career
has begun to diminish and will continue to dwindle if
her skills of Planning and Organizing as well as her
knowledge of the business do not improve significantly
in the current year. Her continued support within the
organization has come from the recognition that Elaine
is making any and all efforts toward doing a `first
class' job; however, there is sufficient indication
that others are becoming weary of bolstering Elaine on
a continuing basis. This places her in a very
precarious position that must be secured by immediate
improvements in these skills in order to be assured of
a future with this organization in the following
I continue to enjoy working with Elaine. It is still
disappointing that these realities and perceptions
remain after almost five years. Elaine must continue
to bring forth the efforts and improvements that are
required of her.
Martin and Hembree both signed this statement.
To improve quality and reduce expenses, Kroger began remodeling its
stores with the use of primarily in-house crews in 1997. The Kroger store
located on Montrose Street in Houston, Texas, was the first in-house
project. Randy Kottlowski ("Kottlowski"), a white male facility engineer,
managed the Montrose remodeling project. Kottlowski, formerly the
assistant manager of the department, was given this opportunity after he
was demoted to the position of facility engineer and placed on probation
on February 5, 1997, due to perceived performance problems. Upon
completion of the Montrose project, Kroger estimated that it had saved
approximately $100,000 through the use of an in-house crew.
In September 1997, the Kroger store in Seabrook, Texas, was identified
as the next in-house remodeling project. Hembree assigned this project to
Martin. In the capacity of project engineer, she was responsible for
preparing a cost estimate and hiring subcontractors for the plumbing,
electrical, floor tile, carpet, and painting. In addition, she was
responsible for obtaining all the necessary city permits and complying
with the applicable building codes. Martin was also required to review
the architect's plans and familiarize herself with the specifications for
the project. Hembree assigned Terry Hildebrandt ("Hildebrandt"), Kroger's
lead carpenter, as the superintendent of the Seabrook project. As
superintendent, Hildebrandt was responsible for overseeing the daily
construction and managing the various craft crews. He had successfully
served as the superintendent of the Montrose project. As the project
engineer, Martin was Hildebrandt's superior.
The Seabrook project was scheduled to begin on September 15, 1997. The
commencement of the project was delayed, however, when Martin failed to
obtain the necessary building permit in advance of the planned start
date. Unlike the Montrose project, the record reflects that the Seabrook
project was fraught with problems. Ida Spearman ("Spearman"), the Seabrook
store manager, describes some of these difficulties in her affidavit:
Several times the wrong equipment or surplus equipment
showed up at the store. My understanding was that Ms.
Martin was responsible for ordering the equipment. For
instance, two sets of Huggieland play equipment were
ordered and delivered to the store. Ms. Martin said
she would take care of the problem, however she never
did. Additionally, Ms. Martin ordered the wrong kind
of bascarts for the store despite my providing her
with information for the proper carts. I had to send
the carts back. Ms. Martin was supposed to contact the
bank which had an ATM machine in our store in order to
arrange for the machine to be picked up. I was forced
to handle this task as well.
I had numerous problems with Anthony Gaston, the
flooring subcontractor hired by Ms. Martin. Mr. Gaston
failed to show up when promised, would not complete
the work he started and would leave supplies in the
public areas of the store. For instance, Mr. Gaston
and his workers were supposed to lay new carpet in the
store's offices on December 31, 1997. My employees and
I moved the furniture after Mr. Gaston and his crew
failed to show up. When Mr. Gaston promised the crew
would do the work on January 1, , we again moved
the furniture in preparation. Mr. Gaston called at
7:00 p.m. that evening to say that he could not locate
his carpet people. The work was finally completed on
January 3, . I regularly advised Ms. Martin of
his poor workmanship, but to no avail. I also advised
Charlie Hembree of the poor management and oversight
by Elaine Martin of this part of the remodel.
By October 1997, news of Martin's problems at Seabrook reached Dave
Burkart ("Burkart"), Vice President of Operations at Kroger. Around
October 17, 1997, Burkart met with George Anderson ("Anderson"), Kroger's
Manager of Human Resources, to discuss the deficiencies in Martin's
performance. In his affidavit, Anderson recalls the meeting:
Dave Burkart . . . came to see me about the Seabrook
project. He indicated that the quality of Ms. Martin's
involvement in the project was less than desirable and
that store management had complained. I sent an email
to Charles Hembree regarding my visit from Mr.
On November 25, 1997, Hembree and Anderson met with Martin and
presented her with a supplemental performance evaluation. In the typed
evaluation, Hembree outlines some of the problems associated with the
On May 30, 1997, Elaine's performance for 1996 was
presented and discussed with her. This performance
review noted skill deficiencies in several areas that
were to show immediate improvement if Elaine were to
be assured of a future with this organization. Since
that time, Elaine has been assigned several projects
in which to demonstrate adequate abilities of
organizing and coordinating. Of her current projects,
the within-the-walls remodel of [Seabrook] illustrates
most clearly Elaine's lack of development in the
elemental processes necessary for the successful
completion of a construction project.
Elaine's handling of this project continues to
demonstrate the deficiencies that have been discussed
on many past projects. Others both within the Kroger
organization and among those outside express the same
observations. The support that Elaine has enjoyed in
the past appears to have been totally withdrawn based
on these last few incidents.
Martin was not receptive to Hembree's comments and refused to sign the
supplemental evaluation. Anderson describes the meeting with Hembree and
Martin in his affidavit:
Ms. Martin became extremely upset and angry during the
meeting and refused to sign the Supplemental
Performance Evaluation. She indicated that she did not
intend to change her performance and that Kroger would
just have to fire her at the end of the probation
period. She then made reference to having been
referred to by a racial epithet, and she also made a
comment about "Terry and his racist ass." However,
when we questioned her about who had allegedly made
racial slurs, Ms. Martin absolutely refused to provide
any more information. She made a statement to the
effect that it would "all come out in court." She then
left the office. Prior to that time, I had not been
notified by Ms. Martin or anyone else that any Kroger
employees or subcontractors had made racially
derogatory comments. Furthermore, Ms. Martin never
complained of sex or gender-based discrimination in
that or any other meeting.
On January 26, 1998, Martin was ill and did not report to work. The
following day, she was involved in an automobile accident. On February
6, 1998, Martin provided a medical release which indicated that she would
not be returning to work until February 20, 1998. Maria Gutierrez-Webber
("Gutierrez"), a Kroger Human Resources assistant, wrote to Martin on
March 6, 1998, explaining:
According to our records, you have been off from work
on an expired leave of absence since March 2, 1998.
Company policy concerning leave of absences is as
"All leaves of absence for longer than 14
consecutive days, except military leaves in
accordance with federal laws, must be requested in
writing and approval or denial by management
communicated to the employee in writing."
Company policy concerning extensions for leaves for
illness, injury, or pregnancy, must be requested in
writing with a supporting medical statement from the
attending physician prior to each expiration date to
the approved leave.
It is necessary for you to complete the enclosed leave
of absence form and attach a statement from your
attending physician, indicating all of the following:
1. Date of disability (in conjunction with approved
leave that began 08/01/97)
2. Date of initial treatment
3. Reason for disability (nature of illness)
4. Anticipated return to work date.
Please be advised that is [sic] this requested
information is not received in Human Resources within
seven (7) days from receipt of this letter that you
are subject to termination for failure to return from
a leave of absence. . . .
On March 26, 1998, Gutierrez sent another letter to Martin, stating:
I received the documents you supplied in support of
extending your leave of absence. These documents do
not include a date for your release to return to
work, as required by the company's leave of absence
procedures. Failure to do so, within 72 hours from
receipt of the letter will result in termination for
failure to return from a leave of absence.
The record does not disclose whether Martin ever responded to this
Q: . . . Ms. Martin, we were talking about how long
[you] were out after your car accident before your
doctors released you to return to work. Isn't it
correct that you didn't return to work at Kroger
after you had the car accident?
The Fifth Circuit has consistently held that "[i]t is well settled that
this court does not allow a party to defeat a motion for summary judgment
using an affidavit that impeaches, without explanation, sworn testimony."
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996);
see Crowe v. Henry, 115 F.3d 294, 298 n. 4 (5th Cir. 1997). Therefore, to
the extent that Martin's affidavit is inconsistent with her deposition
testimony, the court cannot consider it. Hembree, Brett Smollen
("Smollen"), a facility engineer who was later promoted to assistant
manager, and Anderson confirm that Martin did not return to work until
April 28, 1998. In any event, Martin's employment with Kroger was
terminated when she reported to work that day.
Martin filed a charge of employment discrimination with the Texas
Commission on Human Rights ("TCHR") and the Equal Employment Opportunity
Commission ("EEOC") on December 9, 1997, asserting claims of race and sex
discrimination as well as retaliation under the TCHRA. She amended her
charge on February 5, 1998, to expand on her retaliation claim. At her
request, Martin received a right-to-sue notice on March 20, 1998, and
instituted this action in state court on May 14, 1998. Kroger removed the
case to federal court on July 6, 1998, based on diversity of
citizenship. In her original petition, Martin sought recovery for race
and gender discrimination and retaliation in violation of the TCHRA and
also asserted claims alleging negligent retention, wage and hour
violations, tortious interference with existing and prospective business
relations, and intentional infliction of emotional distress. On July 22,
1999, after Kroger filed its motion for summary judgment, Martin
dismissed her claims for negligent retention, wage and hour violations,
and intentional infliction of emotional distress. Thus, Martin currently
seeks to recover for race and gender discrimination and retaliation under
the TCHRA as well as for tortious interference with existing and
prospective business relations.
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a
matter of law." FED.R.CIV.P. 56(c). The parties seeking summary judgment
bear the initial burden of informing the court of the basis for their
motion and identifying those portions of the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits, if any,
which they believe demonstrate the absence of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman,
174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll Parish Hosp.
Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998); Wenner v. Texas Lottery
Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert. denied, ___ U.S. ___,
118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). The moving parties, however, need
not negate the elements of the nonmovant's case. See Wallace v. Texas
Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Little v. Liquid
Air Co., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Once a proper motion has been made, the nonmoving party may not rest
mere allegations or denials in the pleadings, but must present
affirmative evidence, setting forth specific facts, to show the existence
of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106
S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec.
Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); Colson, 174 F.3d at 506; Marshall, 134 F.3d at
321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the
evidence must be construed "in the light most favorable to the non-moving
party without weighing the evidence, assessing its probative value, or
resolving any factual disputes." Williams v. Time Warner Operation,
Inc., 98 F.3d 179, 181 (5th Cir. 1996) (citing Lindsey v. Prive Corp.,
987 F.2d 324, 327 n. 14 (5th Cir. 1993)); see Colson, 174 F.3d at 506;
Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir.
1997), cert. denied, ___ U.S. ___, 119 S.Ct. 794, 142 L.Ed.2d 657
(1999); Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir. 1997), cert.
denied, ___ U.S. ___, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999); Songbyrd,
Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997).
"`The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.'" Reves v. Ernst & Young,
507 U.S. 170, 190 n. 3, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (quoting
Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Palmer v. BRG of Ga., Inc.,
498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); see
Marshall, 134 F.3d at 321. Nonetheless, "`only reasonable inferences can
be drawn from the evidence in favor of the nonmoving party.'" Eastman
Kodak Co. v. image Tech. Servs., 504 U.S. 451, 469 n. 14, 112 S.Ct.
2072, 119 L.Ed.2d 265 (1992) (emphasis in original). "If the [nonmoving
party's] theory is senseless, no reasonable jury could find in its favor,
and summary judgment should be granted." Id. at 468-69, 112 S.Ct. 2072.
The nonmovant's burden is not satisfied by "some metaphysical doubt as
to material facts," conclusory allegations, unsubstantiated assertions,
speculation, the mere existence of some alleged factual dispute, or "only
a scintilla of evidence." Little, 37 F.3d at 1075; see Hart, 127 F.3d at
435; Wallace, 80 F.3d at 1047; Douglass v. United Servs. Auto. Ass'n,
79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527,
1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d
127 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118
(5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505).
Summary judgment is mandated if the nonmovant fails to make a showing
sufficient to establish the existence of an element essential to her case
on which she bears the burden of proof at trial. See Nebraska v.
Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993);
Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324.
"In such a situation, there can be `no genuine issue as to any material
fact' since a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all other facts
immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.
B. Claims Brought Under The TCHRA
Martin asserts race and gender discrimination claims under the TCHRA
against Kroger and Hembree. The TCHRA provides:
An employer commits an unlawful employment practice if
because of race, color, disability, religion, sex,
national origin, or age the employer:
(1) fails or refuses to hire an individual,
discharges an individual, or discriminates against
an individual in connection with compensation or the
terms, conditions, or privileges of employment; or
TEX.LAB.CODE ANN. § 21.051. "The legislature drafted the TCHRA to
`correlat[e] state law with federal law in the area of discrimination in
employment.'" Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.-Houston
[14th Dist.] 1998, no pet.) (quoting Schroeder v. Texas Iron Works,
Inc., 813 S.W.2d 483, 485 (Tex. 1991)); accord NME Hosp., Inc. v.
Rennels, 994 S.W.2d 142, 144 (Tex. 1999); see Thompson v. City of
Arlington, 838 F. Supp. 1137, 1153 (N.D.Tex. 1993); Elstner v.
Southwestern Bell Tel. Co., 659 F. Supp. 1328, 1345 (S.D.Tex. 1987),
aff'd, 863 F.2d 881 (5th Cir. 1988). The statute specifically states that
one of its purposes is to "provide for the execution of the policies of
Title VII of the Civil Rights Act of 1964 and its subsequent amendments
(42 U.S.C. § 2000e et seq.)." TEX.LAB.CODE ANN. § 21.001; see NME
Hosp., Inc., 994 S.W.2d at 144; Caballero v. Central Power & Light Co.,
858 S.W.2d 359, 361 (Tex. 1993); Schroeder, 813 S.W.2d at 485; Passons
v. University of Tex. at Austin, 969 S.W.2d 560, 563 n. 4
(Tex.App.-Austin 1998, no pet.); Gold, 960 S.W.2d at 380.
In keeping with the expressed legislative intent, the TCHRA is
interpreted in a manner consistent with federal laws prohibiting
employment discrimination. See Specialty Retailers, Inc. v.
DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); see also Elstner, 659 F.
Supp. at 1345. "In analyzing Plaintiff's claims under the Texas
Commission on Human Rights Act, the court utilize[s] the same analysis as
provided by the ADEA and Title VII." Deaver v. Texas Commerce Bank,
886 F. Supp. 578, 585 (E.D.Tex. 1995), aff'd, 79 F.3d 1143 (5th Cir.
1996) (citing Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251
(Tex. App.-Houston [1st Dist.] 1993, writ denied)); see Gifford v. Lone
Star Steel Co., 2 F. Supp.2d 909, 911 (E.D.Tex. 1997); Caballero, 858
S.W.2d at 361. Indeed, the Texas Supreme Court has observed that, as
Texas courts have had little opportunity to interpret the TCHRA, it is
appropriate to seek guidance from cases interpreting Title VII. See
Specialty Retailers, Inc., 933 S.W.2d at 492; Speer v. Presbyterian
Children's Home & Serv. Agency, 847 S.W.2d 227, 232 (Tex. 1993).
Therefore, the analysis of Martin's claims under the TCHRA is identical
to that applied to similar claims brought under Title VII. See Colbert
v. Georgia-Pacific Corp., 995 F. Supp. 697, 700 (N.D.Tex. 1998). "Because
the TCHRA is the state counterpart to Title VII, the same standards
apply." Allison v. City of Fort Worth, 60 F. Supp.2d 589, 593 (N.D.Tex,
1999) (citing Farrington, 865 S.W.2d at 251; Schroeder, 813 S.W.2d at
1. Statute of Limitations
The TCHRA establishes a comprehensive administrative review system for
obtaining relief from unlawful employment practices. See Schroeder, 813
S.W.2d at 485; Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71
(Tex.App.-Austin 1990, no writ). Before suing for redress, an employee
must exhaust the administrative remedies available under the Act. See
Caballero, 858 S.W.2d at 360; Schroeder, 813 S.W.2d at 486. A person
claiming to be aggrieved by an unlawful employment practice must file a
complaint with the TCHR within 180 days of the alleged discriminatory
act. See TEX.LAB.CODE ANN. § 21.202(a) ("A complaint under this
subchapter must be filed not later than the 180th day after the date the
alleged unlawful employment practice occurred"); Specialty Retailers,
Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 486; Wal-Mart Stores,
Inc. v. Davis, 979 S.W.2d 30, 41 (Tex.App.-Austin 1998, no pet.);
O'Bryant v. City of Midland, 949 S.W.2d 406, 417 (Tex.App.-Austin 1997,
pet. granted); Vincent v. West Tex. State Univ., 895 S.W.2d 469, 473
(Tex.App.-Amarillo 1995, no writ); Eckerdt, 802 S.W.2d at 71. These
requirements ensure that "the Commission [has an] opportunity to
investigate the allegations, informally eliminate any discrimination, and
minimize costly litigation." Vincent, 895 S.W.2d at 473. The time limit
for filing a complaint
with the Commission is mandatory and jurisdictional. See Specialty
Retailers, Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 488;
O'Bryant, 949 S.W.2d at 417; Vincent, 895 S.W.2d at 473. State law claims
of employment discrimination are time-barred when filed after the 180-day
period, while the same claims brought under federal law would be timely if
filed within 300 days of the alleged discriminatory conduct. See Pope v.
MCI Telecommunications Corp., 937 F.2d 258, 263-64 (5th Cir. 1991),
cert. denied, 504 U.S. 916, 112 S.Ct. 1956, 118 L.Ed.2d 558 (1992).
The courts, however, have recognized an equitable exception "`"where
the unlawful employment practice manifests itself over time, rather than
as a series of discrete acts."'" Webb v. Cardiothoracic Surgery Assocs.
of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998) (quoting Waltman v.
International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989) (quoting
Abrams v. Baylor College of Med., 805 F.2d 528, 532 (5th Cir. 1986)));
see Wal-Mart Stores, Inc., 979 S.W.2d at 41. In order to extend the
statute of limitations under this exception, known as a continuing
violation, the plaintiff must show a series of related acts, one or more
of which falls within the limitations period. See Huckabay v. Moore,
142 F.3d 233, 238-39 (5th Cir. 1998) (citing Messer, 130 F.3d at
134-35); Webb, 139 F.3d at 537; Waltman, 875 F.2d at 474; Wal-Mart
Stores, Inc., 979 S.W.2d at 41; see also Delaware State College v.
Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). "Although
there is no definitive standard for what constitutes a continuing
violation, the plaintiff must demonstrate more than a series of
discriminatory acts. He must show an organized scheme leading to and
including a present violation." Huckabay, 142 F.3d at 239; see Berry v.
Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). "[I]t is the
cumulative effect of the discriminatory practice, rather than any
discrete occurrence, that gives rise to the cause of action." Huckabay,
142 F.3d at 239; see Messer, 130 F.3d at 135; Glass v. Petro-Tex Chem.
Corp., 757 F.2d 1554, 1561 (5th Cir. 1985). "A continuing violation is
one that could not reasonably have been expected to be made the subject
of a lawsuit when it first occurred because its character as a violation
did not become clear until it was repeated during the limitations
period." Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (citing
Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th
Cir. 1997) (citing Rush v. Scott Specialty Gases, Inc., 113 F.3d 476,
481-82 (3d Cir. 1997))); Taylor v. FDIC, 132 F.3d 753, 765 (D.C.Cir.
1997); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164,
1167 (7th Cir. 1996); Berry, 715 F.2d at 981. Application of this theory
relieves a plaintiff from the burden of proving that the entire violation
occurred within the limitations period, as long as she can show that at
least one of the alleged discriminatory acts occurred within the
applicable time period. See Huckabay, 142 F.3d at 238 (citing Messer, 130
F.3d at 135); Webb, 139 F.3d at 537.
The Fifth Circuit has adopted a multi-factor test to assess whether a
continuing violation is implicated. See Huckabay, 142 F.3d at 239;
Berry, 715 F.2d at 981. These factors include subject matter, frequency,
This inquiry, of necessity, turns on the facts and
context of each particular case. Relevant to the
determination are the following three factors, which
we discuss, but by no means consider to be
exhaustive. The first is subject matter. Do the
alleged facts involve the same type of
discrimination, tending to connect them in a
continuing violation? The second is frequency. Are the
alleged acts recurring (e.g., a biweekly paycheck) or
more in the nature of an isolated work assignment or
employment decision? The third factor, perhaps of most
importance, is degree of permanence which should
trigger an employee's awareness and duty to assert his
or her rights, or which should indicate to the
employee that the continued existence of the adverse
the act is to be expected without being dependent on a
continuing intent to discriminate?
Id.; accord Huckabay, 142 F.3d at 239. "Importantly, however, the
particular context of individual employment situations requires a
fact-specific inquiry that cannot easily be reduced to a formula." Id.
"The core idea of the continuing violation theory is that `equitable
considerations may very well require that the filing periods not begin to
run until facts supportive of a Title VII charge or civil rights action
are or should be apparent to a reasonably prudent person similarly
situated.'" Webb, 139 F.3d at 537 (quoting Glass, 757 F.2d at 1560-61).
"`The focus is on what event, in fairness and logic, should have alerted
the average lay person to act to protect his rights.'" Id. (quoting
Glass, 757 F.2d at 1561 (citations omitted)); see also Messer, 130 F.3d
at 135; Abrams, 805 F.2d at 534. If a plaintiff knows or with the
exercise of reasonable diligence would have known that she suffered from
discrimination, she "may not sit back and accumulate all the
discriminatory acts and sue on all within the statutory period applicable
to the last one." Moskowitz v. Trustees .of Purdue Univ., 5 F.3d 279, 282
(7th Cir. 1993). Thus, as the First Circuit noted:
A knowing plaintiff has an obligation to file promptly
or lose his claim. This can be distinguished from a
plaintiff who is unable to appreciate that he is being
discriminated against until he has lived through a
series of acts and is thereby able to perceive the
overall discriminatory pattern.
Sabree, 921 F.2d at 402; Martin v. Frank, 788 F. Supp. 821, 826 (D.Del.
In the case at bar, it is undisputed that Martin waited until December
9, 1997, to file a charge of discrimination with the EEOC. Therefore,
unless a continuing violation is established, Martin may only recover for
conduct that occurred on or after June 9, 1997, 180 days before the
filing of her charge. In her affidavit, Martin states:
I observed and experienced the effects of offensive
racial and/or sexist communications and actions
throughout my employment with Kroger. For example,
Nancy Taylor, a white Co-Manager stated on or about
October 18, 1992 that she needed to "nigger-rig" a
copier because she could not get it to work. Another
Kroger employee indicated to Taylor that she should
watch her language because I was present, but Taylor
replied that she did not care about me standing
there. . . .
My store management training program mentor singled me
out and told me on or about November 11, 1992 that I
would always have problems at Kroger, that I probably
would not be "good enough," and that I had a slim
chance of ever succeeding in employment with Kroger.
Others in the store management training program at
that time were not given similar discouraging advice.
On or about January 20, 1993, Store Manager Clif
Shears (white) told me that my degree did not mean
anything in the eyesight of many within Kroger's
organization and that I would not receive any special
privileges because of my race. . . . Additionally, in
1993, Randy Kotlowski [sic] (white), an Engineer,
asked me if my recently deceased father lived in [the]
same household with is [sic] children, whether he had
insurance, and whether he had a job. In February
1996, during a work-related conversation between me
and Co-Manager Freddy Aguilar (Hispanic), Aguilar told
me "I don't give a damn that your ass is black" and
said that "I will knock your black ass out." I
reported each of these statements to Hembree and other
Kroger employees such as Linda Murphy (black) and
Roman Williams (black).
Not only was I subjected to offensive racist and
sexist communications and behavior by Kroger
employees, I also had to endure such treatment from
contractors on the various projects that were assigned
to me. . . .
These assertions indicate actual knowledge of perceived discriminatory
treatment for over five years before Martin filed her charge of
employment discrimination. See Waltman, 875 F.2d at 476. The events as
Martin describes them would have alerted the average lay person to act to
protect her rights. See Alldread v. City of Grenada, 988 F.2d 1425, 1432
(5th Cir. 1993). "A knowing plaintiff has the obligation to file promptly
or lose [her] claim." Smith v. Bath Iron Works Corp., 943 F.2d 164, 166
(1st Cir. 1991). If Martin believed that Kroger was discriminating
against her, she should have reacted well before December 1997. "Waiting
to see what would happen next was pointless; the harm, if any, was
already inflicted." Rush, 113 F.3d at 483. Accordingly, the continuing
violation theory is not available to Martin, and consequently, her claims
of racial and sexual discrimination and retaliation based on events
occurring prior to June 9, 1997, are time-barred.
2. Individual Liability of Supervisors
A review of the record reveals that Martin's claims against Hembree
arise solely from his actions as a supervisory employee of Kroger. Under
Texas law, employees cannot be held personally liable under the TCHRA, as
the Act does not create a cause of action against supervisors or
individual employees. See Thompson, 838 F. Supp. at 1153; City of Austin
v. Gifford, 824 S.W.2d 735, 742 (Tex.App.-Austin 1992, no writ).
Similarly, it is well settled in the Fifth Circuit that individual
employees, even those functioning in a supervisory capacity, cannot be
held personally liable under Title VII, as they are not "employers" as
that term is defined in Title VII. See Grant v. Lone Star Co., 21 F.3d 649,
652-53 (5th Cir.), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130
L.Ed.2d 491 (1994); accord Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451
n. 2 (5th Cir. 1994); Clanton v. Orleans Parish Sch. Rd., 649 F.2d 1084,
1099 (5th Cir. 1981).
Here, Martin has submitted no evidence to indicate that Hembree
qualifies as an employer for the purposes of liability under the TCHRA.
Among the various parties subject to liability under the TCHRA, the Texas
Legislature could have made an individual employee committing or engaging
in discriminatory acts liable for damages. It did not. Therefore,
Martin's employment discrimination and retaliation claims against Hembree
in his individual capacity must be dismissed for failure to state a claim
upon which relief can be granted.
C. Race and Gender Discrimination Under The TCHRA
In McDonnell Douglas and Burdine, the United States Supreme Court
outlined the evidentiary framework generally applicable to employment
discrimination cases. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). This method of analysis is utilized for both Title VII and TCHRA
claims. See Williams, 98 F.3d at 180; see also Schroeder, 813 S.W.2d at
485. Where, as here, there is no direct evidence of discrimination, the
plaintiff must initially establish a prima facie case by satisfying a
multi-factor test from which a discriminatory motive may be inferred,
thus creating a rebuttable presumption of intentional discrimination. See
Wallace, 80 F.3d at 1047 (citing Meinecke v. H & R Block, 66 F.3d 77, 83
(5th Cir. 1995)); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th
Cir. 1994) (citing Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089). "`To
establish a prima facie case, a plaintiff need only make a very minimal
showing.'" Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.
1996) (quoting Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633,
639 (5th Cir. 1985)).
Once the plaintiff establishes a prima facie case, the burden then
shifts to the defendant to articulate — but not prove — a
legitimate, nondiscriminatory reason for its employment decision. See
McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Davis, 14 F.3d
at 1087; see also Marcantel v. Department of Transp. & Dev., 37 F.3d 197,
199 (5th Cir. 1994). "The employer must clearly set forth, through the
introduction of admissible evidence, reasons for its actions which, `if
believed by the trier of fact,' would support a finding that unlawful
discrimination was not the cause of the employment action." Bauer v.
Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993)). If the employer meets its burden, the prima facie case is
dissolved, and the burden shifts back to the plaintiff to establish that
the reason proffered by the employer is merely a pretext for
discrimination. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct.
1817; Travis v. Board of Regents, 122 F.3d 259, 263 (5th Cir. 1997),
cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998);
Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997);
Marcantel, 37 F.3d at 200; Moham v. Steego Corp., 3 F.3d 873, 875 (5th
Cir. 1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658
(1994). To demonstrate a "pretext for discrimination," the plaintiff must
show both that the employer's proffered reason is false and that
discrimination was the real reason for its actions. See Hicks, 509 U.S.
at 515, 113 S.Ct. 2742. "The plaintiff now must have `"the full and fair
opportunity to demonstrate," through presentation of [her] own case and
through cross-examination of the defendant's witnesses, "that the
proffered reason was not the true reason for the employment decision,"'
and that unlawful discrimination was." Bauer, 169 F.3d at 966 (quoting
Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at
256, 101 S.Ct. 1089)). At all times, however, the plaintiff has the
ultimate burden to prove intentional discrimination. See Hicks, 509 U.S.
at 507, 113 S.Ct. 2742; Marcantel, 37 F.3d at 200.
The Fifth Circuit has formulated the plaintiffs burden under Hicks as
one of establishing that the employer's nondiscriminatory reason is not
credible and that an unlawful discriminatory intent motivated the
employer's action. See Walton v. Bisco Indus., Inc., 119 F.3d 368, 370
(5th Cir. 1997); Polanco v. City of Austin, 78 F.3d 968, 977-76 (5th
Cir. 1996); Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246,
1249 (5th Cir. 1995). "Under Hicks, `[i]t is not enough, in other words,
to disbelieve the employer; the factfinder must believe the plaintiffs
explanation of intentional discrimination.'" Id. (quoting Hicks, 509
U.S. at 519, 113 S.Ct. 2742); see Walton, 119 F.3d at 370. "The question
is not whether an employer made an erroneous decision; it is whether the
decision was made with discriminatory motive." Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); accord Odom v. Frank,
3 F.3d 839, 850 (5th Cir. 1993); Little v. Republic Ref. Co., 924 F.2d 93,
97 (5th Cir. 1991). In the context of a motion for summary judgment, "a
jury issue will be presented and a plaintiff can avoid summary judgment
. . . if the evidence taken as a whole (1) creates a fact issue as to
whether each of the employer's stated reasons was what actually motivated
the employer and (2) creates a reasonable inference that [plaintiffs
protected status] was a determinative factor in the actions of which
plaintiff complains." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th
Cir. 1996); see Ontiveros v. Asarco, Inc., 83 F.3d 732, 734 (5th Cir.
1996). The burdenshifting approach may be dispensed with altogether,
however, if the plaintiff is able to demonstrate intentional
discrimination by direct evidence of discriminatory motive. See Wallace,
80 F.3d at 1047-48; Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir.
1987); Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980).
2. Prima Facie Case of Discrimination
a. Disparate Treatment in Terms and Conditions of Employment
(1) she is a member of a protected class;
(2) she is qualified for the position;
(3) she suffered an adverse employment action; and
(4) others outside the class who are similarly
situated were treated more favorably.
See id.; Nieto v. L & H Packing Co., 108 F.3d 621, 623 n. 5 (5th Cir.
1997); Waggoner v. City of Garland, 987 F.2d 1160, 1163-64 (5th Cir.
1993); Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 381 (5th
Cir. 1988); Thornbrough, 760 F.2d at 639.
Martin's ability to meet the first and second elements of a prima
facie case under a disparate treatment theory is uncontested. As an
African-American female, Martin is indisputably a member of two protected
classes. She appears to be qualified for the position of facility
engineer in view of her engineering degree and her five years of
experience. Kroger, however, contests Martin's ability to show that she
suffered an adverse employment action, aside from her termination, or
that similarly situated, non-black employees were treated more
The anti-discrimination provisions of the TCHRA and Title VII prohibit
adverse employment actions based on an employee's protected status. See
Tex.LAB. CODE ANN. § 21.051; 42 U.S.C. § 2000e-2. In situations
where the plaintiff does not allege severe and pervasive harassment,
actionable adverse employment actions are generally limited to "tangible
employment action[s] [that] constitute  a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits." Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998); see
Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999) (change in work
schedule and being asked to perform tasks not previously assigned are not
adverse employment actions); Kocsis v. Multi-Care Management, Inc.,
97 F.3d 876, 885 (6th Cir. 1996) (reassignment to different division is
not adverse employment action); Yates v. Avco Corp., 819 F.2d 630, 638
(6th Cir. 1987) (transfer without reduction in pay or benefits does not
constitute adverse action). "`Title VII was designed to address ultimate
employment decisions, not to address every decision made by employers
that arguably might have some tangential effect upon those ultimate
decisions.'" Messer, 130 F.3d at 140 (quoting Dollis v. Rubin, 77 F.3d 777,
781 (5th Cir. 1995)); accord Webb, 139 F.3d at 540; Mattern v. Eastman
Kodak Co., 104 F.3d 702, 707-08 (5th Cir.), cert. denied, 522 U.S. 932,
118 S.Ct. 336, 139 L.Ed.2d 260 (1997); Page v. Bolger, 645 F.2d 227, 233
(4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206
An ultimate employment decision, in itself or through its direct
consequences, must effect a material change in the terms or conditions of
employment. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.
1997). "`Although actions short of termination may constitute an adverse
employment action within the meaning of the statute, not everything that
makes an employee unhappy is an actionable adverse action.'" Greaser v.
Missouri Dep't. of Corrections, 145 F.3d 979, 984 (8th Cir.), cert.
denied, ___ U.S. ___, 119 S.Ct. 620, 142 L.Ed.2d 559 (1998) (quoting
Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 689 (8th Cir.
1997)); accord Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th
Cir. 1997); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996).
Interlocutory or mediate decisions,
even those that can lead to an ultimate employment decision, are not
adverse employment actions for purposes of Title VII. See Mattern, 104
F.3d at 708. The Seventh Circuit has explained:
"[A] materially adverse change in the terms and
conditions of employment must be more disruptive than
a mere inconvenience or an alteration of job
responsibilities. . . . A materially adverse change
might he indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a
less distinguished title, a material loss of
benefits, significantly diminished material
responsibilities, or other indices that might be
unique to a particular situation."
Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1112 n.
7 (7th Cir. 1998) (quoting Crady v. Liberty Nat'l Bank & Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993)); Rabinovitz v. Pena, 89 F.3d 482, 488
(7th Cir. 1996).
"[E]mployment actions are not adverse where pay, benefits, and level of
responsibility remain the same." Watts, 170 F.3d at 512; see Harlston v.
McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (reassignment
to a different position without any reduction in title, salary, or
benefits was not adverse employment action although new position involved
different duties and was more stressful); Flaherty v. Gas Research
Inst., 31 F.3d 451, 457 (7th Cir. 1994) (semantic change in title and
"bruised ego" did not constitute adverse employment action where pay,
benefits, and level of responsibility remained the same); Crady, 993 F.2d
at 136 (no adverse action where job transfer merely caused personal
inconvenience or altered job responsibilities). Accordingly, a
supervisor's treatment of an employee "rudely and uncivilly does not
amount to an adverse employment action." Webb, 139 F.3d at 540. Even a
"verbal threat of being fired" is not an adverse employment action
because of its "lack of consequence." Mattern, 104 F.3d at 708. While it
may increase an employee's chance that she will eventually suffer an
adverse employment action, such a threat, in itself, is not an ultimate
employment decision and does not "rise above having mere tangential
effect on a possible future ultimate employment decision." Id.
Similarly, negative performance evaluations, even if undeserved, are not
adverse employment actions giving rise to actionable discrimination
claims. See Speer v. Rand McNally & Co., 123 F.2d 658, 664 (7th Cir.
1997); Smart, 89 F.3d at 442; see also Rabinovitz v. Pena, 89 F.3d 482,
488 (7th Cir. 1996); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896
(10th Cir. 1994). "[N]egative performance evaluations, standing alone,
cannot constitute an adverse employment action," Sweeney v. West,
149 F.3d 550, 556 (7th Cir. 1998) (citing Smart, 89 F.3d at 442); accord
Dela Rosa v. Scottsdale Mem. Health Sys., Inc., 132 F.3d 38, 1997 WL
753359, at *2 n. 3 (9th Cir. Dec. 2, 1997), cert. denied, ___ U.S. ___,
119 S.Ct. 50, 142 L.Ed.2d 38 (1998) (citing Steiner v. Showboat Operating
Co., 25 F.3d 1459, 1465 (9th Cir. 1994), cert. denied, 513 U.S. 1082, 115
S.Ct. 733, 130 L.Ed.2d 636 (1995)); Montandon, 116 F.3d at 359.
Here, Martin attempts to show that similarly situated, non-black, male
employees were treated more favorably than she by relying on allegations
of non-material, tangential events and actions, most of which find no
support in the record. She contends in her petition:
Martin also complains that she received lower pay than non-black, male
engineers. In essence, Martin alleges that Kroger engaged in actionable
conduct with respect to her compensation, her authority as a supervisor,
her workload, and the attribution of credit for her accomplishments.
With regard to compensation, Martin claims in her petition that
"Hembree caused, facilitated and/or participated in disparate
compensation practices" and that she was "compensated at a lower rate
than males in her job classification, regardless of the amount and
quality of work she performed and irrespective of her greater training
and education in the engineering field." Yet, in her charge of
discrimination filed with the TCHR and EEOC, Martin made no mention of
unequal compensation. It is well settled that courts are without
jurisdiction to consider claims brought under the TCHRA or Title VII as
to which an aggrieved party has not first exhausted his administrative
remedies by filing a charge of discrimination with the TCHR or EEOC. See
Caballero, 858 S.W.2d at 360; Schroeder, 813 S.W.2d at 486; see also
42 U.S.C. § 2000e-5 (f)(1); Dollis, 77 F.3d at 781; National Ass'n of
Gov't Employees v. City Pub. Serv. Rd., 40 F.3d 698, 711 (5th Cir.
1994); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994);
Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990); Patridge
v. Runyon, 899 F. Supp. 291, 292 (N.D.Tex. 1995). Civil complaints filed
under the TCHRA or Title VII may only encompass "`discrimination like or
related to allegations contained in the [TCHR or EEOC] charge and growing
out of such allegations during the pendency of the case before the
Commission.'" National Ass'n of Gov't Employees, 40 F.3d at 711 (quoting
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)); see
Dollis, 77 F.3d at 781; Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th
Cir. 1993); Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990).
The primary purpose of the charge is to provide notice to the
respondent of the discrimination alleged and to activate the voluntary
compliance and conciliation functions of the EEOC. See Terrell v. United
States Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th Cir. 1981), vacated
on other grounds, 456 U.S. 968, 102 S.Ct. 2229, 72 L.Ed.2d 841 (1982);
Sanchez, 431 F.2d at 466; Hebert v. Monsanto Co., 1981 WL 313, at *3
(S.D.Tex. Sept.2, 1981), aff'd, 682 F.2d 1111 (5th Cir. 1982). The charge
triggers an investigation by the EEOC so, through a conciliation
process, voluntary compliance may be obtained and discriminatory practices
and policies eliminated. See Terrell, 644 F.2d at 1123; Sanchez, 431 F.2d
at 466. Requiring the plaintiff first to state his allegations of
employment discrimination in an EEOC charge serves "Congress' intention
to promote conciliation rather than litigation in the Title VII context."
Burlington Indus., Inc., 118 S.Ct. at 2270. Accordingly, the scope of the
complaint is limited to "`the discrimination stated in the charge itself
or developed in the course of a reasonable investigation of that
charge.'" National Ass'n of Gov't Employees, 40 F.3d at 712 (quoting King
v. Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir. 1976)); see
Clark, 18 F.3d at 1279-80; Terrell, 644 F.2d at 1123; Sanchez, 431 F.2d
at 465-66. Thus, the failure to assert a claim of discrimination in an
EEOC charge and/or its lack of development in the course of a reasonable
investigation of that charge precludes the claim from later being brought
in a civil suit. See National Ass'n of Gov't Employees, 40 F.3d at
711-12; Young, 906 F.2d at 179; Sanchez, 431 F.2d at 465-66. Here, pay is
not mentioned or even alluded to in the charge, and Martin's unequal
compensation claim cannot be said to be reasonably
related to the specific acts of racial and sexual discrimination set
forth in her charge of discrimination, which are directed at alleged
racial slurs, undermining her authority, Hildebrandt's purported problem
with working with females, and Martin's placement on probation. See Butts
v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397,
1401-03 (2d Cir. 1993). Thus, because Martin has failed to exhaust her
administrative remedies on this issue, the court is without subject
matter jurisdiction over her compensation claim. See Snooks, 996 F.
Supp. at 690 (citing Thornton v. Neiman Marcus, 850 F. Supp. 538, 541
(N.D.Tex. 1994)); see also O'Bryant, 949 S.W.2d at 417.
Martin's compensation claim is also time-barred. Her allegations of
unequal pay pre-date the 180-day limitations period by months or years.
See TEX.LAB.CODE ANN. § 21.202(a); Specialty Retailers, Inc., 933
S.W.2d at 492; Schroeder, 813 S.W.2d at 486; Davis, 979 S.W.2d at 41;
Vincent, 895 S.W.2d at 473; Eckerdt, 802 S.W.2d at 71. At deposition,
Q: "Plaintiff was compensated at a lower rate than
males in her job classification, regardless of the
amount and quality of work." What facts do you
have to support that claim? You need to explain
that to us.
A: I asked the human resources manager at the time,
Fred Smith, was he indeed being paid more money.
A: The other guy, the other engineer prior to me,
Steven. And Fred says yes.
Q: Being paid more than you when you started the
Q: All right. Other than your allegation that Mr.
Smith told you that this Steve Person was paid at
a higher rate than you, is there anybody else that
you're complaining of that was compensated at a
higher rate than you that was your
A: I can't think of any. The other —
Q: Well, who are the other engineers that you worked
with while you were at Kroger?
Q: Right. Let's go through one at a time and ask you
if that person was paid more than you, if they
were of the same job classification and same
rank, et cetera,
A: Brett Smollen, he's an engineer. Cliff Brown.
Q: Now, Brett Smollen was promoted to a higher
position; is that right? He became the assistant
manager of engineering?
A: Are we talking prior to his promotion?
Q: What was your question [to Fred Smith]? Did you
ask him was every single engineer paid more that I
and he said yes?
A: No. My question was if — if I'm not
qualified enough, how do we qualify moneys and is
every male hired — that is hired in Kroger
at the same level I am paid more. And he said
Q: Well, did you routinely go to HR to ask about
salaries of people who no longer worked at Kroger
and hadn't worked there for a year or more?
A: When I was constantly being told by employees that
he wasn't qualified and he was making plenty of
money, then I wanted to know what plenty of money
meant for a guy with no degree versus me with
one. Maybe I should have been making plenty of
Q: Who were the employees who told you that?
A: Ray Patch was the one that did most of the
Q: He didn't work in human resources, did he?
A: No. But none of the other people that got
confidential information worked there either.
Q: I'm asking you what makes you think that this
person Ray Patch knew for a fact what T. Stevens'
salary was and what your salary was, for that
A: Evidently he was getting the information from
someone in human resources.
Q: Okay. You understand you're under oath. I'm not
asking you to guess. I'm going to object to the
extent you're speculating. I'm asking you what
facts you have to support this claim that T.
Stevens or that Ray Patch knew for a fact T.
Stevens was paid more than you.
A: I never asked for evidence.
Q: You don't know for sure?
In addition to Martin's admission that she had no facts to support her
unequal compensation claim, the record reflects that the evidence upon
which she attempts to rely arose years before the limitations period, as
T. Stevens was terminated in 1993 and Smith had ceased to be the Human
Resources Manager long before June 9, 1997.
In an apparent effort to resurrect this claim, Martin points to a
handwritten note dated February 27, 1997, also pre-dating the limitations
period. This document, ostensibly signed by Anderson, purports to list the
grade level and bonus levels of three Kroger engineers. It states, in
(1) Clifton Brown should be a level 35 with a bonus
level of $6,000.
(2) Elaine Martin should be a level 31 with a bonus
level of $4,000.
(3) Randy Kottlowski should be a level 37 with a bonus
level of $7,500.
Yet, aside from being untimely, Martin has failed to establish the
authenticity of this document. This writing, therefore, cannot be
considered competent evidence of Kroger's compensation practices. See
King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) ("[u]nauthenticated
documents are improper as summary judgment evidence") (citing Duplantis
v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991)).
Furthermore, in addition to is speculative nature, much of this
purported evidence is merely hearsay and, as such, is inadequate to defeat
summary judgment. See Garcia v. Reeves County, 32 F.3d 200, 204 (5th
Cir. 1994); Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 283 (5th
Cir. 1991); see also Barhan v. Ry-Ron Inc., 121 F.3d 198, 202 (5th Cir.
1997). Moreover, even assuming that some of the other engineers at Kroger
were paid more than Martin, this alone does not give rise to an inference
of race or sex discrimination — especially in light of Martin's
lack of prior experience and documented performance deficiencies. There
is no evidence concerning the level of experience or education of these
other engineers, their productivity, or the quality of their work. Thus,
if Martin's compensation claim were properly before the court and not
timebarred, she still has failed to proffer competent evidence of
discriminatory compensation practices.
Martin's allegations about undermining her authority as a supervisor,
increasing her workload, and giving credit for her work to undeserving
non-minorities, simply do not rise to the level of adverse employment
actions for which the antidiscrimination provisions of the TCHRA provide
relief. These purported actions effected no direct, material change in
Martin's terms and conditions of employment; at most, they had only a
tangential effect. Furthermore, Martin has provided no evidence that male
or non-black supervisors or employees were treated more favorably with
regard to their authority, workload, or recognition. At deposition,
Martin conceded that she has no evidence to support her claim that
non-black, male engineers received more favorable treatment with respect
to the exercise of their authority:
Q: What makes you think that Mr. Hembree allowed
Terry Hildebrandt to undermine your authority?
A: When Terry would tell me or some of the other
workers what he wasn't going to do and he got it
approved through Charlie to do that.
Q: Do you know whether Terry got any decisions
approved through Charlie with respect to any of
the other three engineers.
A: I know of mine that I questioned Charlie on; and
he said, yeah, he told him to do it or not to do
it. But I can't say about the others.
Q: That's what I'm asking is, you don't know, then,
whether Terry might have gone to Mr. Hembree
concerning projects he was working on with either
of these other engineers, Randy, Brett, or Cliff,
and gotten changes approved through Mr. Hembree
Martin also testified that Hembree allowed Hildebrandt, without Martin's
authorization, to spend money and "take charge and override" her
judgment. Martin, however, admitted at deposition that she has no
evidence to suggest that Hembree did not permit Hildebrandt to do the
same thing with regard to the white, male engineers or that he treated
non-minorities more favorably in this regard.
While Martin also alleges that Hembree discriminated against her by
assigning her to construction projects of greater scope and budget than
other engineers, she conceded at deposition that she has no evidence that
the other engineers, in fact, had a ...