Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

MARTIN v. KROGER CO.

United States District Court, Southern District of Texas


September 15, 1999

ELAINE MARTIN, PLAINTIFF,
v.
THE KROGER CO. AND CHARLES HEMBREE, DEFENDANTS.

The opinion of the court was delivered by: Crone, United States Magistrate Judge.

        MEMORANDUM AND ORDER

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.

I. Background

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 engineer.

Kroger's Engineering Department is responsible for the construction and remodeling of Kroger grocery stores, with facility engineers serving as the project managers on the various construction and remodeling projects. In this capacity, facility engineers are responsible for planning, organizing, and estimating costs of the project; interpreting specifications; soliciting bids from subcontractors; ordering equipment and scheduling its placement; acting as a liaison between Kroger and city officials; ensuring that all governmental codes and requirements are met in a timely fashion; and communicating regularly with the project team, including scheduling and presiding over weekly construction meetings. The project manager bears the responsibility for the organization, oversight, and management of all aspects of the construction project, without regard to whether a general contractor is also used.

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
  position.

  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 engineer."

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
  1994.

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
  skills.

  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
  be disappearing

  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 significantly improved.

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
  within budget.

  [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.

  Elaine must also continue to develop her skills of
  Planning and Organizing. When presented with a well
  developed plan, she does a good job of execution. When
  left to her own devices; however, Elaine's projects
  seem to be helter-skelter. Job schedules are prepared
  as equipment becomes available and not in a logical,
  convenient order. Forward thinking about the upcoming
  tasks and knowledge of their intricacies must be
  present in order to develop a smoothly flowing
  schedule that completes itself in a manner most
  satisfying to everyone involved. The ordering of
  refrigerated equipment seems to be one example of the
  deficiencies in this skill. Equipment is sometimes
  ordered before the fixture plan or the schedule is
  finalized. There have been instances where equipment
  arrived that was not needed and had to be returned,
  equipment that was ordered incorrectly, and shortages
  of equipment that caused delays in completion of
  project elements. One would expect this sort of
  performance from

  someone who is inexperienced in remodels, but after as
  many years as Elaine has been in this job, these
  elemental processes should be better. Elaine must
  improve in her ability to organize and coordinate
  those particulars that impact her projects and to
  evolve a plan for successful completion.

  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
  year.

  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:

  During the course of the project, I experienced great
  difficulty in contacting and communicating with Ms.
  Martin. She often did not return my telephone calls,
  pages or emails or was untimely in doing so. Although
  Ms. Martin was very nice and likeable, she appeared to
  lack organization and management of the project. She
  seemed to have no control over the construction
  meetings or the subcontractors and crew. The plans
  which we were given by Ms. Martin were not accurate

  for the project which interfered with the work of the
  store merchandisers and other crews. I felt she had
  poorly coordinated the project. On several occasions I
  discussed my concerns regarding Ms. Martin's handling
  of the project with Charles Hembree.

  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, [1998], 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, [1998]. 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.
  Burkart.

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 Seabrook project:

  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.

  Elaine's performance is currently unsatisfactory and
  cannot continue. Although this is very disappointing,
  there remains

  no other choice but to place Elaine on probation for
  the next ninety days. At the conclusion of this
  period, Elaine's performance will once again be
  reviewed. Failure to perform at a satisfactory level
  will result in immediate termination of employment.

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
  follows:

    "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 letter.

Although Martin asserts in her affidavit that she worked sporadically after her automobile accident, this assertion conflicts with her deposition testimony:

  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?

A:  Right.

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.

II. Analysis

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 upon 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

    (2) limits, segregates, or classifies an employee or
    applicant for employment in a manner that would
    deprive or tend to deprive an individual of any
    employment opportunity or adversely

    affect in any other manner the status of an
    employee.

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 485).

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, and permanence:

  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
  consequences of

  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. 1992).

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

1. Burden of Proof

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

Martin claims that while employed by Kroger, she was treated adversely as compared to white or male employees in a number of respects. "To establish a prima facie case of discrimination . . ., a plaintiff may prove her claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas. . . ." Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Under the latter method of proof, to establish a prima facie case of disparate treatment, the plaintiff must show that:

(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 favorably.

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 (1981).

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:

  Defendant Hembree further promoted, encouraged,
  condoned, approved and ratified the discriminatory
  acts of others committed against Plaintiff. Defendant
  Hembree frequently and repeatedly acted to undermine
  Plaintiff's work by countermanding decisions which
  Plaintiff made within the course and scope of her job
  duties and responsibilities but with which decisions
  Plaintiff's subordinate employees, including Lead
  Carpenter Terry Hildebrandt, disagreed. Even while
  erecting artificial barriers to Plaintiff's successful
  performance, Defendant Hembree increased the amount of
  responsibility Plaintiff had with regard to

  Defendant Kroger's assets and legitimate business
  interests by assigning Plaintiff to direct
  construction projects of greater scope and budget.
  However, after Plaintiff exceeded expectations and
  completed projects early and within or under budget,
  Defendant Hembree endeavored to shift to [sic] credit
  for Plaintiff's accomplishments to non-minority, male
  employees.

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, Martin testified:

  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.

Q:  Who is "he"?

  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
      job?

A:  Yes.

  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
      classification?

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?

A:  What are their names?

  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
      yes.

  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
      money.

Q:  Who were the employees who told you that?

  A:  Ray Patch was the one that did most of the
      talking.

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
      matter.

  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?

A:  Right.

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 part:

  (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
      that way?

A:  No, I don't know.

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 lesser work load. When questioned about this issue, Martin testified:

  Q:  Ms. Martin, . . . How many projects did you work
      on in 1994, approximately?

A:  Between four and six.

  Q:  Do you know if that number was any different from
      the number of projects on which other engineers
      worked around the same time frame?

A:  I don't know.

  Q:  So you don't know if you were given any more or
      less projects?

A:  Right.

  Q:  Do you have any reason to believe as you sit here
      today that you got a much higher work load than
      your co-workers, or do you stand by your testimony
      that you-all received approximately the same
      amount of work?

  A:  We received approximately the same amount of
      projects.

Furthermore, Martin acknowledged at deposition that a similar, in-house remodeling project had previously been assigned to Kottlowski, a white male.

In addition, Martin offers insufficient evidence to support her claim that non-minority employees received credit for her work. At deposition, Martin testified:

  Q:  And what was the context in which Mr. Hembree gave
      credit to Mr. Hildebrandt? Was this at a meeting?
      Did you-all have a party to celebrate Seabrook? I
      mean, did this come up? What makes you think that
      Mr. Hembree credited Terry Hildebrandt with
      Seabrook?

  A:  Because I was told by the store manager that Terry
      completed the job successfully and within budget
      and all the work was completed and the scope and
      the spec was done properly and everything was
      completed, when, actually, it wasn't.

Q:  And who told you? The store manager?

  A:  Ida Spearman [told] me that Charlie praised Terry
      in completing the project.

 
  Q:  Is he the only non-minority male employee that
      you're talking about. . .?

  A:  No. There were others, but the subcontractors, the
      electrician, and the painter, they are
      non-minority. But they're subcontractors.

Q:  Well, did Mr. Hembree —

  A:  All the other male employees in Terry's group. I
      can't think of his right-hand man. Chris, I
      believe. I can't think of his last name.

  Q:  And who told that you [sic] Chris . . . was given
      credit for the Seabrook project?

A:  Ida.

While this evidence suggests that several non-minority, male employees and subcontractors received praise for their contribution to the Seabrook remodeling project, Martin fails to demonstrate that these individuals received credit for her work. It is apparent that she did not personally perform any of the hands-on work on the remodeling project and that Hildebrandt, the superintendent of the Seabrook project, as well as Martin, deserved credit for completing the job. Moreover, these alleged statements are merely hearsay and, as such, cannot defeat summary judgment. See Rock, 922 F.2d at 283. Inadmissible hearsay is not "enough to get past the summary judgment hurdle." Garcia, 32 F.3d at 204; see also Barhan, 121 F.3d at 202.

Thus, Martin has not adduced sufficient evidence to support her contention that she suffered an adverse employment action with respect to her compensation, the exercise of her authority as a supervisor, her workload, or the attribution of credit for her work. She has made no showing that similarly situated, non-black males were treated more favorably than she with regard to these issues. Accordingly, Martin has not established a prima facie case of disparate with respect to the terms and conditions of her employment at Kroger.

b. Failure to Promote

While Martin now claims that racial and/or sexual discrimination motivated Kroger to promote Smollen, instead of her, to the position of assistant manager of the Facilities Engineering Department, she did not assert this claim in her charge of discrimination. In fact, the charge makes no reference to Smollen, the assistant manager's job, or being denied a promotion. Such a claim is not like or related to the allegations contained in the charge, which focus on alleged racial epithets, affronts to Martin's authority, Hildebrandt's difficulty in working with a female, and Martin's ninety-day probation. Martin's failure to promote claim cannot be deemed to fall within the scope of an investigation that reasonably could have been expected to grow out of the charge. See Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995); Mulhall v. Advance Sec., Inc., 19 F.3d 586, 589 n. 8 (11th Cir.), cert. denied, 513 U.S. 919, 115 S.Ct. 298, 130 L.Ed.2d 212 (1994); Butts, 990 F.2d at 1403. As discussed above, Martin's failure to include this issue in her charge renders the court without subject matter jurisdiction over her failure to promote claim. See Snooks, 996 F. Supp. at 690; Thornton, 850 F. Supp. at 541; O'Bryant, 949 S.W.2d at 417. Similarly, because Smollen was promoted during the first quarter of 1997, Martin's failure to promote claim is timebarred. 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.

Assuming the court had jurisdiction over this claim, to prevail, Martin would be required to establish the following prima facie case:

(1) she is a member of a protected group;

  (2) she applied for a position for which she was
      qualified;

(3) she was rejected; and

  (4) after she was rejected, the employer promoted or
      continued to seek applicants with her
      qualifications not in the protected group.

See Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999); Grimes v. Texas Dep't of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996); Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1297 (5th Cir. 1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1099, 130 L.Ed.2d 1066 (1995); Allison, 60 F. Supp.2d at 593 (TCHRA and Title VII). "When an individual infers discrimination from an employer's failure to promote her, [courts] apply a modified version of the burdenshifting analysis articulated by the Supreme Court in McDonnell Douglas." Scales, 181 F.3d at 712.

Here, Martin's ability to establish the first, third, and fourth elements of a prima facie case of discriminatory failure to promote under the TCHRA is uncontested. Martin is an African-American female who was rejected for the position of assistant manager in Kroger's Facility Engineering Department. Instead, Kroger promoted Smollen, a white male, to the assistant manager position. Kroger maintains, however, that Martin was not qualified for the position and, thus, she cannot establish the second element of a prima facie case.

Martin contends that she should have been awarded the assistant manager position because she had greater seniority than Smollen. In her response to the summary judgment motion, Martin complains that she "was hired before Brett Smollen (white), but although Hembree claims to have considered Martin for promotion, Hembree promoted Smollen to a supervisory position over Martin." Martin points to Hembree's deposition testimony as support for her theory:

Q:  What race is Brett Smollen?

A:  He's white as far as I know.

Q:  He's a white male?

A:  He looks like it.

  Q:  He was hired after Elaine Martin was hired, wasn't
      he?

A: That's correct.

  Q:  Would you agree with me that Mr. Smollen had less
      experience with Kroger Company than Elaine
      Martin?

MS. TETZLAFF: When? At the time of the promotion?

    MR. KRENEK: At the time Elaine Martin was
    terminated.

A:  No.

Q:  Why is that?

  A:  Well, Elaine missed a — to be technically
      accurate, she missed quite a bit of time during
      her pregnancy, probably — almost — I'm
      just guessing, it could be a very similar amount
      of time to the difference in their — in
      their hire dates. Secondly, Brett Smollen was a
      project engineer at his previous job for
      approximately two years before joining Kroger. So
      he brought that experience with him when he came
      to work.

  Q:  Did you ever consider Elaine Martin for the
      position of assistant manager of engineering?

A:  Yes.

  Q:  Well, was Elaine Martin competent to hold the
      position of assistant manager of engineering?

A:  No.

  Q:  Were you ever to the point where, in your mind,
      you were going to give the position of assistant
      manager of engineering to Elaine Martin?

A:  No.

  Q:  You never seriously thought about offering her the
      position of assistant manager of engineering, did
      you?

  A:  . . . I would have liked nothing better than for
      Elaine's performance to be such that I would
      recommend

      her for promotion to assistant manager.

While Martin contends that Hembree's testimony supports her claim, it does not. Although she is clearly a member of a protected group and was passed over for promotion in favor of an applicant not in the protected group, Hembree's testimony fails to demonstrate that she was qualified for the position. In fact, it is inconceivable how Martin, who consistently received below-average performance reviews in her existing position, could contend that she was wrongfully denied a promotion. Moreover, Hembree's testimony reflects that Martin and Smollen were not similarly situated. Indeed, he was better qualified than Martin. See Scales, 181 F.3d at 712. The record reflects that Martin and Smollen actually worked for Kroger for approximately the same length of time, but unlike Martin, who had no previous project engineering experience when she began her employment with Kroger, Smollen had two years of prior experience. Also, unlike Martin, there is no indication that Smollen had difficulties performing his job or received repeated evaluations critical of his performance. In any event, Martin's position on the seniority roster has little bearing on the quality of her performance or dependability. See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955 (5th Cir. 1993). Years of service cannot be equated with superior performance or qualifications. See id.; see also Nichols, 81 F.3d at 42. Accordingly, Martin has not established a prima facie case of discriminatory failure to promote under the TCHRA.

c. Discriminatory Discharge

Martin further alleges that her placement on probation and ultimate discharge were racially and sexually discriminatory. To establish a prima facie case of discriminatory discharge, a plaintiff must show that:

(1) she is a member of a protected class;

(2) she was qualified for the position;

(3) she was discharged; and

  (4) she was replaced by someone outside the protected
  class.

See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997); Meinecke, 66 F.3d at 83; Portis v. First Nat'l Bank of New Albany, 34 F.3d 325, 328 n. 6 (5th Cir. 1994); Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990). Alternatively, a plaintiff may establish a prima facie case by showing that she is a member of a protected class, she was qualified for the position, and persons outside the class were treated more favorably than she. See Nieto, 108 F.3d at 623 n. 5; Waggoner, 987 F.2d at 1163-64; Johnson, 853 F.2d at 381; Thornbrough, 760 F.2d at 639. To establish a prima facie case in this manner, the plaintiff must show that employees outside her protected class were retained or were treated differently under circumstances nearly identical to hers. See Mayberry, 55 F.3d at 1089; Little, 924 F.2d at 97.

Martin's ability to establish the first, second, and third elements of a prima facie case of discriminatory discharge under the TCHRA is undisputed. Martin is an African-American female who was qualified for the position of facility engineer. In addition, it is uncontested that Martin was discharged from her employment with Kroger on April 28, 1998. Kroger, however, maintains that Martin is unable to establish the fourth element of a prima facie case. Kroger points out that Martin was not replaced by someone outside the protected class. Indeed, she was not replaced at all. When asked at deposition, "Who was hired to take the place of Elaine Martin after you terminated her?", Hembree replied, "I did not replace her." Therefore, to proceed, Martin must show that non-black or male employees under similar circumstances were treated more favorably with regard to termination decisions. See Nieto, 108 F.3d at 623 n. 5; Waggoner, 987 F.2d at 1163-64; Johnson, 853 F.2d at 381; Thornbrough, 760 F.2d at 639.

In her response to the summary judgment motion, Martin complains that "Kroger's assessment of disciplinary procedures against Martin is markedly different and less favorable as compared to similarly situated co-workers." To support this position, Martin relies on Hembree's deposition testimony:

  Q:  Now, out of the dozen or so times that you've
      given probation letters, can you remember the
      names of any of the people that you've given these
      probation letters to?

A:  Yes.

Q:  Tell me who they are.

A:  Bob Marquardt.

Q:  What position did he hold?

A:  Senior facility engineer.

Q:  Is he still with The Kroger Company?

A:  Yes.

Q:  When did you give him this probation letter?

A:  I believe it was in December of [1998].

Q:  Any others?

A:  Randy Cutlousky [sic].

  Q:  When did you give Mr. Cutlousky [sic] this
      probationary letter?

A:  In early 1997.

  Q:  What was the reason for why, generally speaking,
      you believe Mr. Cutlousky [sic] warranted
      receiving this probation letter?

  A:  It was his [lack of] ability to work with other
      members of the organization.

  Q:  For how long a period of time did he exhibit this
      lack of ability to work with other people?

A:  For approximately four or five years.

Q:  Was Mr. Cutlousky [sic] demoted —

A:  Yes.

  Q:  — as a result of this action that you
      took?

A:  Yes.

  Q:  What was the position he held before he was
      demoted?

A:  He was assistant manager of engineering.

Q:  Does that mean he was one step below you?

A:  Yes.

Q:  What was he demoted to?

A:  Senior facility engineer.

  Q:  Mr. Hembree, when was the Montrose construction
      project ongoing and completed?

A:  1997.

  Q:  Was this before or after you gave Mr. Cutlousky
      [sic] the probation letter?

A:  After.

  Q:  So on the heels of giving Mr. Cutlousky [sic] a
      probation letter, you gave him the opportunity to
      handle what you believed to be a significant
      construction project for Kroger?

A:  Yes.

Q:  What is Mr. Cutlousky's [sic] race?

A:  He's white.

Q:  Is he still working for Kroger?

A:  Yes.

  Q:  And you also gave a probation letter to Elaine
      Martin, correct?

A:  Correct.

  Q:  . . . Bob Marquardt, Randy Cutlousky [sic] and
      Elaine Martin, are in positions of facility
      engineer or higher, correct?

A:  Correct.

  Q:  And out of all those people, the only one that was
      terminated was Elaine Martin, correct?

A:  That's correct.

  Q:  And Elaine Martin was the only female out of all
      those who got probation letters that was
      terminated, correct?

A:  Correct.

  Q:  And she was the only black that was — that
      got probation letters and was terminated,
      correct?

A:  Correct.

While Hembree's testimony demonstrates that Martin was the only black female, facility engineer to be placed on probation and subsequently terminated, it does not establish that Marquardt and Kottlowski were treated differently under nearly identical circumstances.

Martin offers no information about the situation leading up to, or the specific outcome of, Bob Marquardt's probation. As to Kottlowski, while both Martin and Kottlowski worked in the facility engineering department, received disciplinary probation, and were assigned in-house remodeling projects, Martin has not shown Kottlowski's performance problems mirrored hers or that he failed to improve his performance after being placed on probation. Specifically, there is no evidence that Kottlowski was placed on probation and subsequently demoted due to his lack of knowledge, persistent errors, failure to plan, organize, and oversee projects effectively, or that he was unwilling to improve his performance. In fact, the record reflects that, after his demotion, Kottlowski successfully managed the Montrose remodeling project, saving Kroger approximately $100,000. Martin even admits the project was successful. At deposition, when asked, "What do you know about success, from Kroger's perspective, of the Montrose store remodel?", Martin replied, "They said it went by with raving colors, was my understanding. They thought it went over well." In contrast, the evidence reflects that Martin's Seabrook project was poorly managed and plagued with difficulties.

Martin, therefore, has failed to provide sufficient evidence of a similarly situated, non-black or male employee who was treated more favorably than she with regard to her termination. Accordingly, Martin has not established a prima facie case of discriminatory discharge under the TCHRA.

3. Legitimate, Nondiscriminatory Reasons

Even if Martin had established a prima facie case of race or gender discrimination, Kroger has set forth adequate, nondiscriminatory reasons for its actions. Once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742; Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); Messer, 130 F.3d at 137; Faruki, 123 F.3d at 320; Walton, 119 F.3d at 370. The purpose of this step is "`to force the defendant to give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent.'" Stratton v. Department for the Aging, 132 F.3d 869, 879 (2d Cir. 1997) (quoting Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998)). "The employer need not persuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior." Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998); accord Williams, 98 F.3d at 181, Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993); Fields v. Clark Univ., 966 F.2d 49, 51 (1st Cir. 1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 976, 122 L.Ed.2d 130 (1993). Hence, the defendant's burden is relatively light. See Greenway, 143 F.3d at 52.

"If the employer produces any evidence `which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,' then the employer has satisfied its burden of production." Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (quoting Hicks, 509 U.S. at 507, 113 S.Ct. 2742); EEOC v. Texas Bus Lines, 923 F. Supp. 965, 970 (S.D.Tex. 1996). "The employer's stated legitimate reason must be reasonably articulated and nondiscriminatory, but does not have to be a reason that the judge or jurors would act on or approve." Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir. 1979); see Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984). Indeed, even an employer's incorrect belief that "an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason." Mayberry, 55 F.3d at 1091 (citing Little, 924 F.2d at 97). The articulated reason, however, must be "clear and specific." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1226 (2d Cir. 1994). Furthermore, it "must be legally sufficient to justify a judgment for the [employer]." Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998) (quoting Burdine, 450 U.S. at 255, 101 S.Ct. 1089); see Nichols, 81 F.3d at 41; Rhodes, 75 F.3d at 992. If the defendant sustains its burden of production, "the presumption raised by the plaintiffs prima facie case essentially disappears, and the plaintiff is left with the ultimate burden which has never left him: that of proving that the defendant intentionally discriminated against him." Tanik v. Southern Methodist Univ., 116 F.3d 775, 776 (5th Cir.), cert. denied, 522 U.S. 1015, 118 S.Ct. 600, 139 L.Ed.2d 488 (1997); accord Bauer, 169 F.3d at 966; Messer, 130 F.3d at 137; Grimes, 102 F.3d at 140.

In the present case, Kroger maintains that Martin's performance evaluations, lack of promotion, and eventual termination were not due to racial or sexual discrimination, but were the result of her lack of knowledge, poor performance, persistent errors, failure to plan, organize, and oversee construction projects effectively, inadequate communication skills, and unwillingness to improve her deficiencies, as well as her hostile and defensive approach to legitimate concerns expressed about her performance. Kroger points to Hembree's affidavit, which states, in part:

  On November 25, 1997, I asked Ms. Martin to attend a
  meeting with me and George Anderson, the Manager of
  Human Resources. I presented Ms. Martin with a
  Supplemental Performance Evaluation outlining some of
  the problems associated with the Seabrook project. I
  explained that she was being placed on probation for a
  ninety (90) day period at the end of which her
  performance would be reviewed. I explained both orally
  and in the written evaluation that I prepared and gave
  to Ms. Martin that her failure to perform at a
  satisfactory level during that time would result in
  her termination.

  Ms. Martin became extremely 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 called a racial
  epithet, and she angrily referred to "Terry and his
  racist ass." But when Anderson and I questioned her
  about who had allegedly made a racial slur, Ms. Martin
  refused to provide any more information. She made a
  statement to the effect that it would "all come out in
  court." 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.
  Finally, she never complained of gender discrimination
  at that or any other meeting.

  After the November 25, 1997, meeting, Ms. Martin
  showed no indication of attempting to improve her
  performance. I received several additional complaints
  from the Seabrook store manager about the management
  of the project and Ms. Martin's lack of
  communication. In addition, I discovered additional
  mistakes Ms. Martin had made in the ordering of

  equipment including an order for gas coils for the
  freezer and seafood coolers, when both operated with
  electric coils. Almost all equipment in the Houston
  area uses electric coils, and Elaine should have known
  this as a construction engineer. I also discovered
  that two quick chillers were ordered, when only one
  was needed and called for in the original
  specifications.

  On or about January 26, 1998, I learned that Ms.
  Martin was involved in an automobile accident. To my
  knowledge, Ms. Martin did not return to work after the
  automobile accident until April 28, 1998. Because her
  performance after the November 25, 1997, meeting had
  not improved prior to the automobile accident, Ms.
  Martin was terminated upon returning to work on April
  28, 1998. The decision to terminate Ms. Martin was
  made by myself and George Anderson, Manager of Human
  Resources.

Accordingly, Kroger has articulated specific reasons for its failure to promote and ultimate discharge of Martin, which permit the conclusion that its actions were not based on a discriminatory animus, thus satisfying its burden of production.

4. Pretext for Discrimination

Because Kroger has carried its burden of articulating legitimate, nondiscriminatory reasons for its actions, to prevail, Martin must prove by a preponderance of the evidence that Kroger's proffered reasons are a pretext for discrimination. See Travis, 122 F.3d at 263; Price, 119 F.3d at 337. To demonstrate a "pretext for discrimination," the plaintiff must show both that the employer's stated reasons for its actions are false and that prohibited discrimination was the real reason for the employer's decision. See Hicks, 509 U.S. at 515, 113 S.Ct. 2742; Bauer, 169 F.3d at 966; Travis, 122 F.3d at 263; Swanson v. General Servs. Admin., 110 F.3d 1180, 1185 (5th Cir.), cert. denied, 522 U.S. 948, 118 S.Ct. 366, 139 L.Ed.2d 284 (1997); EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1443 (5th Cir. 1995). The evidence of pretext must be more substantial than pure speculation; a plaintiff must provide sufficiently specific reasons for her allegations of pretext. See Nichols, 81 F.3d at 42. To avoid summary judgment, a "plaintiff must present evidence that both (1) rebuts the employer's non-discriminatory reason, and (2) creates an inference that [plaintiffs protected status] was a determinative factor in the challenged employment decision." Ross v. University of Tex. at San Antonio, 139 F.3d 521, 525 (5th Cir. 1998) (citing Rhodes, 75 F.3d at 994). "The employer, of course, will be entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory." Rhodes, 75 F.3d at 994; see Price, 119 F.3d at 337; Atkinson v. Denton Pub. Co., 84 F.3d 144, 148 (5th Cir. 1996); Hall v. Gillman Inc., 81 F.3d 35, 37 (5th Cir. 1996).

Initially, Martin attempts to establish pretext by contending that she was better qualified than Smollen for the assistant manager position. For a factfinder to infer pretext, however, the plaintiff must show that she was "clearly better qualified," as opposed to merely better qualified or as qualified as the employee who was selected for the position. See Nichols, 81 F.3d at 42; Louisiana Office of Community Servs., 47 F.3d at 1444; Bodenheimer, 5 F.3d at 959; Odom, 3 F.3d at 847; Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). In order to defeat summary judgment, the difference in qualifications must be "`so apparent as virtually to jump off the page and slap us in the face.'" Louisiana Office of Community Servs., 47 F.3d at 1445 (quoting Odom, 3 F.3d at 847). Moreover, the evidence of superior qualifications must be more than merely subjective and speculative. See Nichols, 81 F.3d at 42; Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 119 (5th Cir. 1993); Elliott v. Group Med. & Surgical Serv., Inc., 714 F.2d 556, 564 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). "To establish a fact question as to relative qualifications, a plaintiff must provide sufficiently specific reasons for his opinions, mere subjective speculation will not suffice." Nichols, 81 F.3d at 42.

As stated above, the Fifth Circuit has refused to "equate years served with superior qualifications." Bodenheimer, 5 F.3d at 959. "[G]reater experience alone will not suffice to raise a fact question as to whether one person is clearly more qualified than another." Nichols, 81 F.3d at 42. "More evidence, such as comparative work performance is needed." Id. Under these circumstances, it cannot be said that Martin was "clearly better qualified" than the individual who was selected for the position in question. As the court found in Odom, this court "find[s] that neither singly nor collectively do [Martin's] qualifications leap from the record and cry out to all who would listen that [she] was vastly — or even clearly — more qualified for the subject job than was [Smollen]." 3 F.3d at 847.

In another attempt to make some showing that Kroger's articulated reasons are pretextual, Martin asserts that she was subjected to offensive racist and sexist comments from Kroger employees, contractors, and subcontractors. Specifically, Martin alleges in her affidavit that she witnessed or was the subject of the following racial and sexual comments: a subcontractor's comment that he would not work for a "nigger;" a general contractor's August 19, 1997, comment that "a damn nigger woman don't [sic] know what the hell is going on in construction and should be home having babies;" a fixturing subcontractor's remark around January 14, 1997, that "[t]his is not work for stupid women;" a comment by Hildebrandt on February 9, 1998, that "this must have been somebody else you hired that can't speak no English," as well as a January 21, 1998, remark to other employees that they should not "worry about the niggers because they will be fired soon." With regard to her supervisor, Martin claims that on October 15, 1997, "Hembree pointed out to me that I, like `most blacks,' had a problem with pronouncing certain words `properly'" and that on July 22, 1997, "Hembree told me that he grew up thinking that blacks expected to be called `nigger' because that was common speech where he grew up." In addition, Martin points to the affidavit of Anthony Gaston ("Gaston"), an African-American tile and carpet subcontractor Martin hired to perform work on the Seabrook project. In his affidavit, Gaston states, "Hildebrandt treated me differently than other subcontractors because of my race (black). I heard Hildebrandt refer to me and Elaine Martin as `niggers' on more than one occasion." In addition, Gaston claims that he overheard Hildebrandt tell some individuals that "Martin did not know what she was doing, that he was running this project, that they did not have to worry about the `niggers' for much longer because they would be fired soon." Finally, Gaston maintains that "[i]t was Hildebrandt who started the rumor that Martin and I had a personal relationship, which was a false and baseless accusation against the both of us that reflected on our business reputations."

As discussed above, any discriminatory act that occurred more than 180 days before Martin filed her discrimination charge is not actionable. Thus, Martin's complaints regarding comments made before June 9, 1997, are untimely. With regard to any remarks made subsequent to June 9, 1997, to constitute evidence of discrimination, these remarks must be:

(1) related to the plaintiffs protected status;

  (2) proximate in time to the employment decision at
      issue;

  (3) made by an individual with authority over the
      employment decision at issue; and

  (4) related to the specific employment decision
      challenged.

See Krystek v. University of Southern Miss.,
164 F.3d 251, 256 (5th Cir. 1999); Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996). If the comments do not meet these criteria, they are merely "stray remarks" without probative value when offered either in connection with the plaintiffs prima facie case or to demonstrate pretext. See Boyd v. State Farm Ins. Cos., 158 F.3d 326, 329-30 (5th Cir. 1998) (supervisor's isolated references to an employee as a "Porch Monkey" and "Buckwheat" held to be stray remarks from which race discrimination could not be inferred); Price, 119 F.3d at 337 (supervisor's comment that he wanted to get rid of the older employees and hire "young blood" made two years prior to termination was a stray remark and not evidence of intentional age discrimination); EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181-82 (5th Cir. 1996) (comments that company had to make room for younger supervisors and "it's just that you've reached that age and years of service that we can bridge you to retirement" found to be stray remarks); Lo v. FDIC, 846 F. Supp. 557, 564 (S.D.Tex. 1994), aff'd, 52 F.3d 1066 (5th Cir. 1995) (comment that "all Chinese guys like to trade" held to be stray remark because vague, remote in time, and not related to specific employment decision at issue). In short, "[t]he mere utterance of a racial epithet is not indicia of discrimination under Title VII." Boyd, 158 F.3d at 329 (citing Anderson, 26 F.3d at 1295); see Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972) ("mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" does not fall within the proscription of Title VII). "Stray remarks with no connection to an employment decision cannot create a fact issue regarding discriminatory intent and are insufficient to defeat summary judgment." Scales, 181 F.3d at 712 (citing Price, 119 F.3d at 337; Texas Instruments, Inc., 100 F.3d at 1181; Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995)).

Direct evidence of discrimination consists of "`conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude sufficient to permit the factfinder to find that attitude was more likely than not a motivating factor in the employer's decision.'" Thomas v. First Nat'l Bank, 111 F.3d 64, 66 (8th Cir. 1997) (quoting Kriss v. Sprint Communications Co., 58 F.3d 1276, 1282 (8th Cir. 1995)). Evidence of discrimination, thus, does not include "`stray remarks in the workplace,' `statements by nondecisionmakers,' or `statements by decisionmakers unrelated to the decisional process itself.'" Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring); Krystek, 164 F.3d at 256. Furthermore, when pretext is at issue on summary judgment, "[a]bsent a causal link between the references and the conduct complained of, such epithets become stray remarks that cannot support a discrimination verdict." Boyd, 158 F.3d at 330 (citing Ray, 63 F.3d at 434); see Scales, 181 F.3d at 712. Hence, for Martin to prevail, she must "`show[] a specific link between the [alleged] discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated'" Kroger's decision to terminate her employment. Thomas, 111 F.3d at 66 (quoting Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995)). As Justice O'Connor has elaborated, "stray remarks in the workplace . . . cannot justify requiring the employer to prove that its [employment] decisions were based on legitimate criteria." Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775 (citations omitted); see Young, 906 F.2d at 182 (finding that "`white tokens' and `white faggots' remarks would not be enough to shift the burden to the City").

"Evidence of a supervisor's occasional or sporadic use of a slur directed at an employee's race, ethnicity, or national origin is generally not enough to support a claim under Title VII." Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1260, 1265-66 (7th Cir. 1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994) (evidence that division head made statements that plaintiff should "move back to Korea" and told her repeatedly to "learn to speak English" insufficient to support national origin discrimination claim); see Shorter v. ICG Holdings, Inc., 188 F.3d 1204 (10th Cir. 1999) (supervisor's inquiry of African-American female about black men's sex organs, comment that employee "talked like people of her culture, race, or color," remark during confrontation about employee's job performance that "[y]ou are just on the defensive because you are black," and subsequent reference to employee after her termination as an "incompetent nigger" held not sufficient to establish pretext because the statements were of personal opinion and not directly related to employee's termination); Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380-81 (7th Cir. 1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987) (allegations that co-workers called plaintiff "black" and "monkey" found to be vague and inadequate to support racial discrimination claim); see also Torres v. County of Oakland, 758 F.2d 147, 152 (6th Cir. 1985); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981); Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (8th Cir. 1977). As the Supreme Court has noted, the "`mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not sufficiently alter terms and conditions of employment to violate Title VII." Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (quoting Rogers, 454 F.2d at 238); see Barber v. International Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, 778 F.2d 750, 761 (11th Cir. 1985); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982).

"To be probative of discrimination, isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process." Geier v. Medtronie, Inc., 99 F.3d 238, 242 (7th Cir. 1996); see Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir. 1992). Such remarks, even when made by the supervisor who discharged the plaintiff cannot defeat summary judgment unless they are both proximate and related to the employment decision in question. See Shorter, 188 F.3d 1204; Bahl v. Royal Indem. Co., 115 F.3d 1283, 1293 (7th Cir. 1997). Moreover, "[t]iming standing alone is not sufficient absent other evidence of pretext." Boyd, 158 F.3d at 330.

Racially based comments, even when made by the decisionmaker and highly offensive under contemporary standards, have been found insufficient to prove racial animus when the use of such slurs was infrequent and was not related to the challenged decision. See Boyd, 158 F.3d at 329-30; Turner v. Local 1211, Int'l Union, Auto. Aerospace & Agricultural Implement Workers of Am., UAW, 149 F.3d 1184, 1998 WL 385918, at *2 (6th Cir. July 2, 1998) (union president's use of term "fucking niggers" when referring to grievances filed by plaintiff found to be too isolated and not causally related to plaintiffs race discrimination claim); Johnson, 646 F.2d at 1257 (when there was "no steady barrage of opprobrious racial comment," occasional use by supervisors and fellow employees of the term "niggers" to refer to plaintiffs held not to violate Title VII); Upshaw v. Dallas Heart Group, 961 F. Supp. 997, 1000 (N.D.Tex. 1997) (comment by physician involved in termination decision to "get that nigger rap music off of the telephone hold" found not sufficient to prove a racial animus when employee was not terminated for playing rap music); see also Bahl, 115 F.3d at 1293 (comments referring to "those people," criticism of Asian Indian plaintiffs English, and adverse reference to his "image" found to be stray remarks and insufficient to establish pretext). "[S]uch remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements were uttered by a decision maker." Hong, 993 F.2d at 1266; see Boyd, 158 F.3d at 330 (citing Ray, 63 F.3d at 434); Figures v. Board of Pub. Utils. of City of Kansas City, 967 F.2d 357, 360-61 (10th Cir. 1992); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990); Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989).

Here, the comments about which Martin complains either were not made by a decisionmaker or were unrelated and not proximate to her termination. Comments made by an employee who was neither a decisionmaker nor able to influence the termination decision are not actionable under Title VII or the TCHRA. See Krystek, 164 F.3d at 256; Bahl, 115 F.3d at 1293. Almost all of the comments to which Martin objects were allegedly voiced by non-decision makers, such as Martin's subordinate, Hildebrandt, the lead carpenter, or by non-employees, such as contractors and subcontractors. Martin has failed to adduce sufficient probative evidence showing a connection between any derogatory comments or discriminatory animus displayed by Hembree and her termination. See Boyd, 158 F.3d at 330; Price, 119 F.3d at 337. Instead, she relies on isolated, vague, innocuous, or remote stray remarks which are insufficient to sustain her burden on summary judgment. While, unquestionably, the use of the term "nigger" has no place in the employment setting, or in any other setting for that matter, there is no evidence in this case of sufficiently frequent or pervasive use of that word or other racially derogatory epithets to defeat summary judgment. See Shorter, 188 F.3d 1204; Boyd, 158 F.3d at 329-30; Turner, 1998 WL 385918, at *2; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994); Johnson, 646 F.2d at 1252. Although the remarks attributed to Hembree may have been tactless and potentially derogatory, they are relatively mild compared to other comments the courts have found not to be actionable as a matter of law. See, e.g., Shorter, 188 F.3d 1204; Boyd, 158 F.3d at 329-30; Waggoner, 987 F.2d at 1166; Young, 906 F.2d at 182; Johnson, 646 F.2d at 1257; Cariddi, 568 F.2d at 88; Upshaw, 961 F. Supp. at 1000.

Kroger further points out that it is illogical that the same employee, Hembree, who hired Martin would only a few years later discriminate against her based on her race or gender. If Hembree had disliked Martin because she is an African-American female, or for any other reason, he would not have sought her out for the position of facility engineer. The Fifth Circuit has held that this situation "gives rise to an inference of non-discrimination" because it is illogical to assume that a decision-maker would recommend that an employee from a protected group be selected for a position merely to terminate her once she is on the job. See Nieto, 108 F.3d at 624. In Brown, the Fifth Circuit specifically approved the "same actor" inference:

  "[C]laims that employer animus exists in termination
  but not in hiring seem irrational." From the
  standpoint of the putative discriminator, "[i]t hardly
  makes sense to hire workers from a group one dislikes
  (thereby incurring the psychological costs of
  associating with them), only to fire them once they
  are on the job."

82 F.3d at 658 (quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)); accord Nieto, 108 F.3d at 624. As in Brown, the facts in this case are not "sufficiently egregious to overcome the inference" that Kroger's stated reason for its actions is not a pretext for racial or sexual discrimination. See 82 F.3d at 658.

Next, Martin argues that her alleged performance problems constitute a pretext for discrimination because her prior employment history shows her to be a diligent and capable employee. In her affidavit, Martin claims that "Hembree had acknowledged several times in the past that I brought in my projects on time and on budget." In addition, Martin points to the following testimony of Hembree at deposition:

  Q:  The Seabrook project came within budget, didn't
      it?

A:  I'm not aware of it going over budget.

  Q:  Okay. So it cam [sic] within budget. That's a
      credit to Ms. Elaine Martin in her —
      performing her job as a facility engineer, right?

A:  Most of Elaine's jobs were within budget.

Q:  And that's a good thing; isn't it?

A:  It certainly is.

  Q:  That's one of things [sic] you measure the
      performance of a facility engineer by?

A:  That's correct.

  Q:  And she was doing her job well on that aspect of
      measuring her job performance?

  A:  The measurement of whether a job is done well or
      not is more than whether or not it's delivered on
      budget and on time.

Evidence of her past acceptable performance, however, is tainted by Martin's subsequent poor performance and negative attitude, which in turn led to her termination. Any evidence of Martin's prior good performance is insufficient to show pretext in light of her more recent performance problems. See Clay v. City of Chicago Dep't of Health, 143 F.3d 1092, 1094 (7th Cir. 1998) (proof that plaintiff was once considered an adequate employee does not suggest that employer's explanation for her discharge was pretextual); Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir. 1995) (holding a prior favorable evaluation and the receipt of two bonuses to be insufficient evidence of pretext); Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (proof that plaintiffs were adequate employees before budget cut does not suggest that employer's explanation for their layoff masks age discrimination); see also Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1223 (7th Cir. 1991). Furthermore, "[a]n employee's self-serving statements about his ability . . . are insufficient to contradict an employer's negative assessment of that ability." Gustovich, 972 F.2d at 848 (citing Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th Cir. 1988); Dale v. Chicago Tribune Co., 797 F.2d 458, 464-65 (7th Cir. 1986)). In addition, Martin's seniority has little bearing on the quality of her performance or dependability. See Bodenheimer, 5 F.3d at 959; see also Nichols, 81 F.3d at 42.

Martin further attempts to establish pretext by contending that she was treated differently than other employees. Specifically, Martin alleges that she was written up and terminated for poor performance, while other employees, not in her protected class, were not. To survive summary judgment, Martin must show that the other employees who allegedly received more favorable treatment were similarly situated. Hence, she must demonstrate that the "white [or male] employees were treated differently under circumstances nearly identical to [hers]." Mayberry, 55 F.3d at 1090; see Little, 924 F.2d at 97; Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990); Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570-71 (5th Cir. 1982). Martin, however, has adduced insufficient evidence to support a finding that she was similarly situated to these other employees. Namely, she does not show that the other employees worked in similar positions or had a consistent record of performance problems. Hence, because Martin fails to proffer adequate evidence to show that the other employees with whom she compares herself were similarly situated, she has not raised a fact issue on the genuineness of Kroger's reasons or its alleged discriminatory intent.

While Martin may disagree with Kroger's assessment of her performance and its decisions to place her on probation and ultimately terminate her employment, those were business decisions, which, in the absence of a discriminatory motive, the court will not disturb. See Walton, 119 F.3d at 372; Guthrie v. Tifco Indus., 941 F.2d 374, 378 (5th Cir. 1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992). The employment discrimination laws are "not intended to be a vehicle for judicial second-guessing of employment decisions nor . . . to transform the courts into personnel managers." Louisiana Office of Community Servs., 47 F.3d at 1448 (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)); see Furnco Constr. Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Walton, 119 F.3d at 372; Bodenheimer, 5 F.3d at 959; Waggoner, 987 F.2d at 1165. "Federal Courts `do not sit as a super-personnel department that reexamines an entity's business decisions . . .'" Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)).

It has long been the law in the Fifth Circuit that Title VII does not protect against unfair or unwise business decisions, only against decisions motivated by unlawful animus. See Nieto, 108 F.3d at 624. "Nor does the statute require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix, 738 F.2d at 1187 (citing Megill v. Board of Regents, 541 F.2d 1073, 1077 (5th Cir. 1976)). "`While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination.'" Id. (quoting Loeb, 600 F.2d at 1012 n. 6). As the Fifth Circuit explained in Mayberry:

  "[E]ven an incorrect belief that an employee's
  performance is inadequate constitutes a legitimate,
  nondiscriminatory reason. We do not try in court the
  validity of good faith beliefs as to an employee's
  competence. Motive is the issue. . . . [A] dispute in
  the evidence concerning job performance does not
  provide a sufficient basis for a reasonable factfinder
  to infer that [the] proffered justification is
  unworthy of credence."

55 F.3d at 1091 (quoting Little, 924 F.2d at 97); see Jones v. Gerwens,
874 F.2d 1534, 1540 (11th Cir. 1989); Sherrod v. Sears, Roebuck & Co.,
785 F.2d 1312, 1316 n. 11 (5th Cir. 1986); Turner v. Texas Instruments,
Inc., 555 F.2d 1251, 1256 (5th Cir. 1977). A showing of pretext "must
extend beyond casting doubt on the reasonableness of the employer's
action; otherwise, the law would be converted to a just cause' provision
for the protected class  of employees, an effect that Congress clearly
did not intend." Hanchey v. Energas Co., 925 F.2d 96, 98 (5th Cir. 1990)
(citing Bienkowski, 851 F.2d at 1508 n. 6).

In the final analysis, Martin's subjective perception of discrimination is all that remains. It is well established, however, that an employee's own subjective belief of discrimination, no matter how genuine, cannot serve as the basis for judicial relief. See, e.g., Price, 119 F.3d at 337; Nichols, 81 F.3d at 42; Douglass, 79 F.3d at 1430; Ray, 63 F.3d at 434; Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995), cert. denied, 516 U.S. 1047, 116 S.Ct. 709, 133 L.Ed.2d 664 (1996); Louisiana Office of Community Servs., 47 F.3d at 1448; Portis, 34 F.3d at 329; Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994). An employee's "bald assertions of [race or gender] discrimination are inadequate to permit a finding that proscribed discrimination motivated" an employer's conduct. Ray, 63 F.3d at 435. Moreover, the subjective belief of a fellow employee, whether a supervisor, coworker, or in this instance, a subcontractor, suffers from the same defects as the plaintiffs subjective belief. See Little, 924 F.2d at 96; McConnell v. Thomson Newspapers, Inc., 802 F. Supp. 1484, 1504 n. 26 (E.D.Tex. 1992). It does not matter "that the belief belongs to a party other than the plaintiff," even if the belief is held by a supervisor. See Little, 924 F.2d at 96. When, as here, an employee does not adduce objective evidence refuting the rational reasons articulated by the employer, pretext cannot be established by subjective beliefs that discrimination motivated the employer's actions. See Armendariz, 58 F.3d at 153; Elliott, 714 F.2d at 567.

In this instance, Martin has made no showing that Kroger's articulated reasons for its actions are false or that racial or sexual discrimination was actually the motivating factor for its employment decisions. Martin has not produced adequate evidence, either direct or circumstantial, to support a finding of discriminatory animus. Therefore, she has not shown that Kroger's articulated reasons for its actions were a pretext for unlawful discrimination. Under these circumstances, Martin has failed to adduce sufficient evidence to create a reasonable inference that her race or gender were determinative factors in Kroger's decisions with respect to her employment. Therefore, Martin cannot prevail on her claims of discrimination under the TCHRA, mandating summary judgment in favor of Kroger.

D. Retaliation under the TCHRA

Martin further asserts that her 1997 performance rating and subsequent termination were in retaliation for her opposition to racist practices at Kroger and her filing of a charge of discrimination. The TCHRA provides:

  An employer . . . commits an unlawful employment
  practice if the employer retaliates or discriminates
  against a person who, under this chapter:

(1) opposes a discriminatory practice;

(2) makes or files a charge;

(3) files a complaint; or

    (4) testifies, assists, or participates in any
        manner in an investigation, proceeding, or
        hearing.

TEX.LAB.CODE ANN. § 21.055; see Marsaglia v. University of Tex., ___ S.W.2d ___ No. 08-98-00271-CV, 1999 WL 649241, at *3 (Tex.App.-El Paso Aug. 26, 1999, no pet. h.); McMillon v. Texas Dep't. of Ins.,
963 S.W.2d 935, 940 (Tex.App.-Austin 1998, no pet.). Retaliation claims under the TCHRA are guided by the same analysis that applies to claims of retaliation under Title VII. See Matthews v. High Island Indep. Sch. Dist., 991 F. Supp. 840, 844 n. 2, 846 n. 6 (S.D.Tex. 1998) (stating that "state law analysis [under the TCHRA] is subsumed in the Court's Title VII analysis"). Title VII similarly prohibits retaliation against an employee who has engaged in activity protected by the Act:

    It shall be an unlawful employment practice for an
  employer to discriminate against any of his employees
  . . . because he has opposed any practice made an
  unlawful employment practice by this subchapter, or
  because he has made a charge, testified, assisted, or
  participated in any manner in an investigation,
  proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-(3).

The anti-retaliation provision of the TCHRA, like that of Title VII, has two components — an opposition clause and a participation clause. See Cox & Smith Inc. v. Cook, 974 S.W.2d 217, 223-24 (Tex. App.-San Antonio 1998, pet. denied); see also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997); Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1135 (5th Cir. 1981). "The TCHRA protects an employee from retaliation or discrimination by an employer because the employee `opposed a discriminatory practice.'" Cox & Smith Inc., 974 S.W.2d at 223-24 (quoting TEX.LAB.CODE ANN. § 21.055(1)). "Under the first prong, to establish that the employee opposed a discriminatory practice, the employee must demonstrate a good faith reasonable belief that the underlying discriminatory practice of the employer violated the law." Id. (citing Payne, 654 F.2d at 1140-41). "The employee is not required to show that there was actual existence of an unlawful practice, only that she held a good faith reasonable belief that the employer engaged in activity made unlawful by Title VII or the TCHRA." Id. (citing Payne, 654 F.2d at 1140-41). The opposition clause of § 2000e-3(a) requires the employee to demonstrate that she had at least a "reasonable belief that the practices she opposed were unlawful." Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (citing Payne, 654 F.2d at 1140); see De Anda v. St. Joseph Hosp., 671 F.2d 850, 853 n. 2 (5th Cir. 1982); Cox & Smith Inc., 974 S.W.2d at 223-24. The participation clause, however, does not include the `reasonable belief' requirement and provides broad protection to an employee who has participated in a Title VII proceeding. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989); see also Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997). Under both clauses, the employee must demonstrate that her opposition to perceived unlawful activity was a motivating or determining factor in the adverse employment action taken by her employer, i.e., there must be a causal connection. See Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983).

The Fifth Circuit has held that "the burden-shifting structure applicable to Title VII disparate treatment cases, as set forth in McDonnell Douglas Corp. v. Green, . . . is also applicable to Title VII unlawful retaliation cases." Long, 88 F.3d at 304 (citing McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S.Ct. 1817; McMillan, 710 F.2d at 1116). Therefore, after the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to proffer a legitimate, non-retaliatory reason for its actions. See id. at 304-05; Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992) (citing EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1326 (5th Cir. 1991)). If the employer meets its burden, the employee then bears the ultimate burden of showing that the reasons given by the employer are a pretext for retaliation. See Shirley, 970 F.2d at 42. "If the defendant introduces evidence which, if true, would permit the conclusion that the adverse employment action was nondiscriminatory, the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff." Long, 88 F.3d at 305. "To carry her ultimate burden, an employee must also show that her employer would not have taken the adverse employment action `but for' the employee's participation in the protected activity." Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th Cir. 1999); see Walton, 119 F.3d at 370; Long, 88 F.3d at 305; Ray, 63 F.3d 429, 435-36 (5th Cir. 1995).

To establish a prima facie case of retaliation, a plaintiff must show:

  (1) she participated in statutorily protected
      activity;

(2) an adverse employment action occurred; and

  (3) a causal connection exists between the protected
      activity and the adverse action.

See Marsaglia, ___ S.W.2d at ___, 1999 WL 649241, at *2; Cox & Smith Inc., 974 S.W.2d at 223; Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Mayberry v. Texas Dep't of Agric., 948 S.W.2d 312, 315 (Tex.App.-Austin 1997, writ denied); see also Scrivner, 169 F.3d at 972; Webb, 139 F.3d at 540; Messer, 130 F.3d at 140; Mattern, 104 F.3d at 707; Grimes, 102 F.3d at 140; Long, 88 F.3d at 304; Dollis, 77 F.3d at 781. "An employee has engaged in activity protected by Title VII if she has either (1) `opposed any practice made an unlawful employment practice' by Title VII or (2) `made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing' under Title VII." Grimes, 102 F.3d at 140 (citing 42 U.S.C. § 2000e-3 (a); Long, 88 F.3d at 304).

In this case, Martin claims to have engaged in protected activities when she opposed alleged racist practices at Kroger and when she filed a charge of employment discrimination with the EEOC. While it is undisputed that Martin engaged in a protected activity by filing a charge of discrimination, Martin's claims regarding opposition to alleged discriminatory practices require further analysis. In her affidavit, Martin maintains that she received a below-average performance rating in 1997 because she reported offensive comments to Hembree. Specifically, Martin states:

  Several times, I reported to Hembree that contractors
  and subcontractors were making racially offensive
  comments. I reported to Hembree on or about January
  14, 1997 that Jacobs said to me "This is not work for
  a stupid women." [sic] Susan Cantrell (white), a
  painting subcontractor, told me on or about March 22,
  1997 that Tom Jacobs, a fixturing contractor told
  [her] that the Huggie Land area (Kroger's in-store
  activity area for children) "looks like a nigger
  designed it." . . . I told Hembree of Jacobs'
  offensive remarks on or about May 29, 1997 and
  subsequently, on or about May 30, 1997, I received a
  negative performance evaluation. I had not received
  negative performance ratings from Hembree before, and
  I told Hembree that I did not believe the statements
  contained in it were accurate or truthful. . .

Martin also claims that:

  The last significant event involving Hembree and
  Hildebrandt was when I opposed Hildebrandt's decision
  to get rid of the tile subcontractor for Seabrook,
  Anthony Gaston (black) on about November 19, 1997.
  There was quite a history of conflict between
  Hildebrandt and Gaston's crew, and Hildebrandt
  demanded that I fire Gaston on several occasions,
  based solely on Hildebrandt's word. . . . When I met
  with Hembree and Hildebrandt about Gaston, I pointed
  out that Kroger had never fired a contractor under
  circumstances like this previously. When white
  subcontractors had performance problems, Kroger worked
  with them and let [sic] make the necessary
  improvements. Yet Hembree and Hildebrandt wanted to
  fire the black subcontractor without knowing the whole
  story. . . . Hildebrandt wanted to know whether I was
  standing up for Gaston because, Hildebrandt thought, I
  was f__cking Gaston. Hembree told me that I should
  back Hildebrandt, a Kroger employee, over Gaston, an
  outsider. Rather than address the issues I brought to
  Kroger's attention, Hembree disciplined me when I
  complained. On or about November 25, 1997 — less
  than a week after the November 19, 1997 meeting in
  which Hembree told me to back Hildebrandt over Gaston
  — Hembree and Anderson called me away from a job
  site into a meeting where I was given a written notice
  that I had been placed on probation for poor
  performance. . . .

Initially, it is apparent that Martin's complaints about comments made and a performance evaluation given prior to June 9, 1997, are time-barred. Furthermore, Martin's contention that she "had not received negative performance ratings from Hembree before" is refuted by the record. The evaluations merely became increasingly critical as time passed without Martin showing marked improvement. While Martin's opposition to the use of racial slurs might otherwise qualify as a protected activity if those comments were directed against coworkers, her opposition to the treatment afforded Gaston does not. Martin has failed to proffer evidence of any discriminatory employment practice with regard to Gaston, as he was not an employee of Kroger. According to Martin, Hildebrandt wanted Gaston removed as a subcontractor on the project due to perceived performance problems, and Hembree was dismayed because she had sided with an outsider rather than a Kroger employee. Martin's opposition to nondiscriminatory or non-protected practices does not qualify as a protected activity under the opposition clause. See Azubuike, 970 S.W.2d at 65 (citing Booker, 879 F.2d at 1313). To be protected under the anti-retaliation provision of Title VII, an employee's opposition must be to an activity that is unlawful or that the employee reasonably believes to be an unlawful employment practice under Title VII. See
Long, 88 F.3d at 304; De Anda, 671 F.2d at 853 n. 2; Cox & Smith Inc., 974 S.W.2d at 223-24.

Discriminatory comments or actions directed at persons who are not employees, such as independent contractors or subcontractors, do not fall within the scope of Title VII. See Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 135-36 (2d Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3116 (U.S. Aug. 2, 1999) (No. 99-206); Little v. United Tech., 103 F.3d 956, 959-60 (11th Cir. 1997); Crowley v. Prince George's County, 890 F.2d 683, 687 (4th Cir. 1989); Silver v. KCA, Inc., 586 F.2d 138, 141-42 (9th Cir. 1978). As the Ninth Circuit explained in Silver:

  By the terms of the statute, . . . not every act by an
  employee in opposition to racial discrimination is
  protected. The opposition must be directed at an
  unlawful employment practice of an employer, not an
  act of discrimination by a private individual.

Id. Similarly, the acts of discrimination opposed by the employee must be against a fellow employee or applicant for employment, not a private individual. See Wimmer, 176 F.3d at 135-36; Crowley, 890 F.2d at 687. As with a hostile work environment claim, the person against whom the discrimination or hostility is directed must be in an employment relationship with the employer. See Wimmer, 176 F.3d at 136. "The specific evil at which Title VII was directed was not the eradication of all discrimination by private individuals, undesirable though that is, but the eradication of discrimination by employers against employees." Silver, 586 F.2d at 141.

With regard to the second element of a prima facie case of retaliation, it is undisputed that Martin's termination was an adverse employment action. In contrast, her negative performance evaluations and placement on probation, even if undeserved, are not adverse employment actions giving rise to an actionable retaliation claim. See Speer, 123 F.3d at 664; Smart, 89 F.3d at 442; see also Rabinovitz, 89 F.3d at 488; Meredith, 18 F.3d at 896. "`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, 77 F.3d at 781); accord Watts, 170 F.3d at 511; Webb, 139 F.3d at 540; Mattern, 104 F.3d at 707-08; Bomer v. Dallas County Historical Found., No. 05-96-01724-CV. 1999 WL 34820, at *5 (Tex.App.-Dallas Jan. 28, 1999, no pet.).

Ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leave. See Webb, 139 F.3d at 539; Messer, 130 F.3d at 135; Mattern, 104 F.3d at 707. "[E]mployment actions are not adverse where pay, benefits, and level of responsibility remain the same." Watts, 170 F.3d at 511; see Speer, 123 F.3d at 664; Smart, 89 F.3d at 442. Interlocutory or mediate decisions, even those that can lead to an ultimate employment decision, such as placing an employee on probation, are not adverse employment actions for purposes of a retaliation claim. See Mattern, 104 F.3d at 708; see also Creswell v. Deere & Co., No. Civ. A. 3:96-CV-1392-P, 1997 WL 667928, at *9 (N.D.Tex. Oct. 21, 1997) (finding that placing an employee on probation and carefully monitoring her performance do not constitute ultimate employment decisions); Edmond v. Fujitsu-ICL Sys., Inc., No. CA 3:95-CV-2548-BC, 1997 WL 118406, at *6 (N.D.Tex. Mar. 5, 1997) (holding that an employer's placement of an employee on probation did not "constitute an adverse employment action"). Probation does not necessarily lead to an employee's discharge, as it affords the employee an opportunity to improve her performance. If the employee displays sufficient improvement, no ultimate employment decision will occur.

The Fifth Circuit has held a wide array of actions taken by employers not to constitute ultimate employment decisions actionable under the anti-retaliation clause of Title VII. See Messer, 130 F.3d at 135 (employer's failure to resolve internal grievances, close monitoring of employee's conversations, frequent criticism of employee's work and conduct, failure to heed employee's input, failing to permit employee to represent employer at business functions, and downsizing of employee's department do not constitute ultimate employment decisions); Mattern, 104 F.3d at 707-08 (hostility from fellow employees, having tools stolen, visits to employee's home, verbal threats of being fired, reprimands, a missed pay increase, and being placed on "final warning" are not actionable); Dollis, 77 F.3d at 779, 780, 782 (denial of desk audit which restricted opportunities for promotion, denial of attendance at training conference, provision of false information to employee regarding aspects of assignment, requiring that supervisor approve every document written by employee, and criticism of employee's work to a vendor also do not constitute adverse employment actions); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 597 (5th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995) (publication of office newsletter routinely ridiculing plaintiff due to her gender and her filing of EEOC charge alleging sexual discrimination found not to be adverse employment action).

Under these circumstances, aside from her termination, the retaliatory acts alleged by Martin were not adverse employment actions within the scope of the antiretaliation provisions of the TCHRA and Title VII, as they caused no tangible changes in her duties or working conditions and resulted in no materially significant disadvantages. See Manning, 127 F.3d at 692. "`[N]ot every insult, slight, or unpleasantness gives rise to a valid Title VII claim.'" Webb, 139 F.3d at 539 (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997)). Indeed, "[e]very job has its frustrations, challenges and disappointments, these inhere in the nature of work. An employee is not . . . guaranteed a working environment free of stress." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986); see McCann v. Litton Sys., Inc., 986 F.2d 946, 952-53 (5th Cir. 1993).

Although the third element of a prima facie case — causation — is similar to the ultimate issue in an unlawful retaliation claim, the standard for establishing a causal link at the prima facie case stage is much less stringent. See Long, 88 F.3d at 304 n. 4; Ray, 63 F.3d at 435; McMillan, 710 F.2d at 1116-17; Payne, 654 F.2d at 1141 n. 13. As the Fifth Circuit has commented:

  At first glance, the ultimate issue in an unlawful
  retaliation case — whether the defendant
  discriminated against the plaintiff because the
  plaintiff engaged in conduct protected by Title VII
  — seems identical to the third element of the
  plaintiffs prima facie case — whether a causal
  link exists between the adverse employment action and
  the protected activity. However, the standards of
  proof applicable to these questions differ
  significantly.

Long, 88 F.3d at 305 n. 4 (emphasis in original). A plaintiff need not prove that her protected activity was the sole factor in motivating the employer's challenged decision in order to establish the requisite causal link. See Long, 88 F.3d at 304 n. 5; De Anda, 671 F.2d at 857 n. 12.

The consideration of three factors may be helpful in determining whether a causal link has been demonstrated at the prima facie case stage: (1) the plaintiffs past disciplinary record, (2) whether the employer followed its typical policies and procedures in terminating the employee, and (3) the temporal relationship between the employee's conduct and discharge. See Nowlin v. RTC, 33 F.3d 498, 507-08 (5th Cir. 1994) (citing Jenkins v. Orkin Exterminating Co., 646 F. Supp. 1274, 1277 (E.D.Tex. 1986)). "The timing of the adverse employment action can be a significant, although not necessarily determinative, factor." Mayberry, 55 F.3d at 1092. The causal connection requirement of plaintiffs prima facie case "may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Chavez v. City of Arvada, 88 F.3d 861, 866 (10th Cir. 1996), cert. denied, 519 U.S. 1056, 117 S.Ct. 684, 136 L.Ed.2d 608 (1997) (citing Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982)).

In this situation, Martin's five-year employment history with Kroger
reflects a number of persistent deficiencies in her work, with an overall
declining level of performance over the years. The record indicates
that, despite Hembree's repeated counseling and attempts to assist Martin
with supplemental training and guidance, she failed to remedy these
shortcomings. Moreover, Kroger  appears to have followed its progressive
discipline policy by giving Martin increasingly negative performance
evaluations, placing her on probation, and ultimately terminating her
employment. Nonetheless, the timing of her termination in relation to her
complaints about discrimination is sufficiently questionable to raise an
arguable fact issue as to the third element of a prima facie case of
retaliation. The evidence reflects that Kroger placed Martin on a
ninety-day probationary period on November 25, 1997. After that date, she
worked approximately forty-five days, called in sick on January 26,
1998, and then was involved in an automobile accident on January 27,
1998. Martin remained on a leave of absence following the accident until
April 28, 1998, when she reported for work and was terminated. In the
interim, she filed a discrimination charge with the EEOC on December 9,
1997, and amended her charge on February 5, 1998. Thus, Martin's
employment with Kroger was terminated within three months of her engaging
in protected activity.

While Martin may be able to establish a prima facie case of retaliation, Kroger has proffered ample evidence of non-retaliatory reasons for Martin's discharge, i.e., her poor performance and negative attitude, as detailed above. See Shirley, 970 F.2d at 42. The final inquiry, therefore, is whether the proffered reasons for Kroger's actions are merely pretextual. To demonstrate a "pretext for retaliation," the plaintiff must show both that the employer's stated reasons for its actions are false and that prohibited retaliation was the real reason for the employer's decision. See Hicks, 509 U.S. at 515, 113 S.Ct. 2742. In order to avoid summary judgment following a showing of a legitimate, non-retaliatory reason for a challenged employment decision, a plaintiff must create a fact issue as to whether each of the employer's stated reasons actually motivated the employer and create a reasonable inference that a desire to retaliate was a determinative factor in the employment decision. See Grimes, 102 F.3d at 140-41 (citing Rhodes, 75 F.3d 989 at 993). Unlike a disparate treatment case, which requires only that the prohibited factor be a substantial motive for the defendant's adverse action, "[t]he ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a `but for' cause of the adverse employment decision." Long, 88 F.3d at 305 n. 4 (citing McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985)); see Ray, 63 F.3d at 435; Shirley, 970 F.2d at 43; Jack, 743 F.2d at 1131.

Under these circumstances, Martin has failed to demonstrate that Kroger's proffered reasons for her discharge are pretextual. She has made no showing that the articulated reasons for her termination are false. Martin also has not rebutted the evidence proffered by Kroger indicating that her performance as a facility engineer was unsatisfactory and that she was unwilling or unable to take the necessary steps to improve her performance. In fact, long before Martin filed a charge of discrimination with the EEOC, she was on the road to termination, as evidenced by Hembree's comments in her evaluation of May 30, 1997, noting that she needed to make immediate improvements to be assured a future with Kroger. Therefore, in light of her numerous documented deficiencies, it cannot be said that "but for" her complaints of employment discrimination, Martin would have remained employed by Kroger. Thus, summary judgment is warranted with respect to Martin's retaliation claim.

E. Tortious Interference with Business Relations

Finally, Martin contends that Kroger and Hembree tortiously interfered with her existing and prospective business relations. Specifically, she claims that Hembree interfered with her employment relationship with Kroger and that Hembree or others at Kroger interfered with her prospective employment with H.E.B. At deposition, Martin testified as follows:

  Q:  All right. You also have a claim of tortious
      interference with existing and prospective
      business relationships. My question to you is,
      what facts do you have to support this claim?

  A:  Once I was fired, I began — not
      immediately; a few months — looking for
      work. . . . H.E.B. [was] looking for a facility
      engineer, and I applied for [that position]. I
      received a lengthy telephone call. I guess it was
      a pre-interview. She interviewed me about an
      hour, whoever the lady was on the other end. She
      was in human resources, I believe. And she said
      that — that it sounds pretty good. She
      said, "You're doing exactly what's — exactly
      what the papers are asking for, but I need to get
      it to engineering and let me check out the
      references."

      Then a couple of weeks passed by, and I just
    called to check out the status of it, you know,
    where was it in process [sic]; and she said that it
    was still in engineering. They was [sic] still
    verifying — trying to verify my experiences.
    And she asked me some in-depth questions about
    Kroger — why did you leave and how did you
    leave. And I told her at this particular point, it
    just didn't work out; and I'm applying for a job
    with H.E.B. And then a week later I received a
    letter saying that — I can't remember the
    exact verbiage. It said I didn't have — not
    enough experience — that they wasn't [sic]
    quite looking for what I had, for the skills I had.
    They wasn't [sic] quite looking for it. And I
    thought that was pretty strange that everything that
    was listed in the newspaper that I had experience
    with. I didn't call and question on that other than
    to thank her for her time that she spent questioning
    me.

Q:  What does that have to do with Mr. Hembree?

  A:  Well, I have no factual evidence that he talked to
      H.E.B.; but someone with H.E.B. engineering talked
      to Kroger's engineering. The telephone interview
      lady said that her engineering department had to
      call and check out, because it was so closely
      matched to what they were looking for. They were
      looking for somebody to build stores. And I guess
      they wanted to check it out and see if I actually
      done [sic] the work, I don't know what. And then I
      receive a letter saying thank you but no thank
      you. So someone — they talked to someone in
      Kroger.

Q:  How do you know that?

  A:  Because they — the telephone — the
      girl on the telephone said that she could not set
      me up with an interview until her engineering
      department talked to ours — to Kroger's.

  Q:  But you don't know for a fact whether she or
      anybody in her engineering department talked to
      Mr. Hembree or anybody else in Kroger's
      engineering department, do you? . . .

A:  Right. I have no evidence or facts.

  Q:  How did Mr. Hembree tortiously interfere with your
      employment relationship with Kroger?

  A:  About — he allowed Terry's demeaning
      behavior to continue, even when, you know, I would
      come — I felt so — so neglected, so
      out of place in the engineering department once I
      filed a charge, because no one had nothing to say
      to me. We didn't socialize. We didn't talk about
      — we didn't talk about anything. And so
      — and I feel that the engineers were
      — someone talked to the engineers. The
      engineers didn't want to socialize and talk to me
      about anything other than the dispatchers that
      — the girls asked me what was going on.

  Q:  You didn't have an employment contract with
      Kroger, did you?

A:  No.

  Q:  In other words, you understood that your
      employment with Kroger was at will; right?

A:  Right.

Texas courts recognize actions for tortious interference with both existing and prospective contracts. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 664 (Tex. 1990); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989); Hart v. Attorneys-At-Law, No. 01-97-00890-CV, 1999 WL 2391, at *5 (Tex.App.-Houston [1st Dist.] Dec. 30, 1998, no pet.); Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 258 (Tex. App.-Austin 1993), aff'd as modified, 903 S.W.2d 347 (1995); Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex.App.-Corpus Christi 1991, writ denied). "These two torts differ primarily in that interference with prospective relations requires the plaintiff [] to prove both that [she] had a reasonable probability of obtaining a contract and that the defendant acted with malice." Thrift v. Estate of Hubbard, 44 F.3d 348, 357 (5th Cir. 1995).

1. Existing Business Relations

To establish a claim for tortious interference with existing contractual relations, the plaintiff must prove:

  (1) the existence of a contract subject to
      interference;

(2) willful and intentional interference;

(3) proximate cause; and

(4) actual damage or loss.

Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998) (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)); Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991); Massey v. Houston Baptist Univ., 902 S.W.2d 81, 85 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

"Texas law recognizes that a party to a contract has a cause of action for tortuous [sic] interference against a third party, (meaning a stranger of the contract) who wrongfully interferes with the contract." Probst v. Ryder Truck Rental, Inc., No. Civ.A. 3:97-CV-2521-P, 1999 WL 184127, at *9 (N.D.Tex. Mar. 29, 1999) (citing Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995)). When, like Hembree, the defendant is both a corporate agent and the third party who allegedly induced the corporation's breach, the second element is of particular importance. See Powell Indus., Inc., 985 S.W.2d at 456 (citing Holloway, 898 S.W.2d at 796). That is because, by definition, a party to a contract cannot tortiously interfere with his own contract. See Probst, 1999 WL 184127, at *9; Holloway, 898 S.W.2d at 796; Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App.-Houston [1st Dist.] 1995, no writ). When the act of interference is allegedly committed by an individual who is also the lawful representative of the contracting party, the plaintiff must establish that the alleged act of interference was performed in furtherance of the defendant's personal interest, so as to preserve the rule that a party cannot tortiously interfere with his own contract. See Powell Indus., Inc., 985 S.W.2d at 456-57; ACS Investors, Inc., 943 S.W.2d at 432; Holloway, 898 S.W.2d at 796. In other words, "[t]he plaintiff must prove that the agent acted willfully and intentionally to serve the agent's personal interests at the corporation's expense." Powell Indus., Inc., 985 S.W.2d at 457 (citing Holloway, 898 S.W.2d at 798); see Probst, 1999 WL 184127, at *9. "A corporate officer's mixed motives-to benefit both himself and the corporation-are insufficient to establish liability." Powell Indus., Inc., 985 S.W.2d at 457 (citing ACS Investors, Inc., 943 S.W.2d at 432).

When determining whether an agent acted against the corporation's interests, the court considers the corporation's evaluation of the agent's actions. See id. (citing Morgan Stanley & Co. v. Texas Oil Co., 958 S.W.2d 178, 181-82 (Tex. 1997)). "A corporation is a better judge of its own best interests than a jury or court." Id. (citing Morgan Stanley & Co., 958 S.W.2d at 181). While a principal's complaint about its agent's actions is not conclusive of whether the agent acted against the principal's best interests, "if a corporation does not complain about its agent's actions, then the agent cannot be held to have acted contrary to the corporation's interests." Id. (citing Morgan Stanley & Co., 958 S.W.2d at 182).

Contrary to Kroger's contention, however, an at-will employment relationship is subject to tortious interference. "Texas law firmly supports the contractual nature of an at-will employment relationship. . . ." Fadeyi v. Planned Parenthood Assoc., 160 F.3d 1048, 1050 (5th Cir. 1998). The Texas Supreme Court has recognized that an at-will employment relationship is a contract, notwithstanding that either party may terminate it at will. See id. Thus, until an employee is terminated, "third persons are not free to tortiously interfere with contracts which are terminable-at-will." Knox v. Taylor, 992 S.W.2d 40, 57 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Sterner, 767 S.W.2d at 689). Therefore, "it is no defense to an action for tortious interference that a contract is terminable at will." Knox, 992 S.W.2d at 58 (citing Juliette Fowler Homes, Inc., 793 S.W.2d at 666); Sterner, 767 S.W.2d at 689; Massey, 902 S.W.2d at 85.

Here, Martin has failed to present evidence that Hembree willfully or intentionally interfered with her relationship with Kroger. There is no indication that Hembree's actions or inaction were motivated by his personal interests or contrary to Kroger's interests. There is also no suggestion that Kroger ever complained about Hembree's actions with respect to Martin. Thus, Martin cannot establish a prima facie case of tortious interference with existing business relations based on Hembree's conduct.

Furthermore, to the extent Martin's claim of tortious interference with existing business relations is merely a restatement of her employment discrimination claim, it is foreclosed by the TCHRA. "The TCHRA provides the exclusive state-law means for redress of employment discrimination and preempts claims for discrimination brought under other state-law theories." Cook v. Fidelity Invs., 908 F. Supp. 438, 442 (N.D.Tex. 1995) (holding claim for negligent supervision brought by black employee complaining of company's failure to prevent racial discrimination to be preempted by TCHRA) (citing Vincent, 895 S.W.2d at 473-74 (finding TCHRA to preempt claim of retaliatory discharge brought under the Texas Tort Claims Act); Stinnett v. Williamson County Sheriff's Dep't., 858 S.W.2d 573, 576-77 (Tex.App.-Austin 1993, writ denied) (finding claim of retaliatory discharge under Whistle Blower Act to be preempted by more specific provisions of TCHRA); Bates v. Humana, Inc., No. Civ.A. SA-92-CA-432, 1993 WL 556416, at *11 (W.D.Tex. Oct. 12, 1993) (holding common law claims arising from defendant's discriminatory behavior to be preempted by TCHRA)); accord Lott v. Eastman Kodak Co., No. Civ.A. 3:97-CV-2560-P, 1999 WL 412824, at *9 (N.D.Tex. Jun. 15, 1999) (holding claims of negligent retention and supervision preempted by TCHRA); Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 478-79 (N.D.Tex. 1997) (finding claims of negligent retention and supervision of sales manager who allegedly engaged in age discrimination to be preempted by TCHRA); see TEX.LAB. CODE ANN. § 21.211; but see Gonzales v. Willis, 995 S.W.2d 729, 738 (Tex.App.-San Antonio 1999, no pet.); Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870, 875 (Tex.App.-San Antonio 1998, pet. denied). A plaintiff "may not seek relief under both the administrative scheme of the Labor Code and other civil remedies at law." O'Bryant, 949 S.W.2d at 417 (citing Schroeder, 813 S.W.2d at 487).

2. Prospective Business Relations

Martin's claim regarding interference with prospective contractual relations arises from H.E.B.'s failure to hire her as an engineer. To establish a claim for tortious interference with prospective business relations, the plaintiff must prove that:

  (1) there was a reasonable probability that the
      plaintiff would have entered into a contractual
      relationship;

  (2) the defendant committed a malicious and
      intentional act that prevented the relationship
      from occurring, with the purpose of harming the
      plaintiff; and

  (3) actual harm or damage resulted from the
      defendant's interference.

See Gaia Techs. Inc. v. Recycled Prods. Corp., 175 F.3d 365, 377 (5th Cir. 1999); Thrift, 44 F.3d at 356-57; Cockerham v. Kerr-McGee Chem. Corp., 23 F.3d 101, 105 (5th Cir. 1994); Winston v. American Med. Int'l, Inc., 930 S.W.2d 945, 953 (Tex.App.-Houston [1st Dist.] 1996, writ denied). As in any other tort action, "there must be a causal link between the conduct complained of and the resulting damages." Texas Commercial Bus. Sys., Inc. v. FCC, 898 F.2d 460, 462 (5th Cir. 1990); Diesel Injection Sales & Servs., Inc. v. Renfro, 656 S.W.2d 568, 573 (Tex.App.-Corpus Christi 1983, writ refused n.r.e.).

In order to prove a cause of action for tortious interference with prospective contract, the plaintiff must first show that there existed a reasonable probability that, absent the interference, the plaintiff would have entered into a contractual relationship. See Gaia Techs. Inc., 175 F.3d at 377. "It is not necessary to prove that the contract would have certainly been made but for the interference; it must be reasonably probable, considering all of the facts and circumstances attendant to the transaction." Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 109 (Tex.App.-El Paso 1997, no writ) (citing Allsup, 808 S.W.2d at 659). "More than mere negotiations must have taken place." Id. (citing Caller-Times Publ'g Co. v. Triad Communications, Inc., 855 S.W.2d 18, 21 (Tex. App.-Corpus Christi 1993, no writ); Grace v. Zimmerman, 853 S.W.2d 92, 95 (Tex.App.-Houston [14th Dist.] 1993, no writ)).

Here, Martin has presented no evidence to demonstrate that there was a reasonable probability that Martin and H.E.B. would have entered into an employment contract in the absence of Kroger's actions. Indeed, she has presented to evidence that H.E.B., in fact, contacted Kroger's Engineering Department, much less that H.E.B. declined to hire her as a result of any information supplied by Kroger. Martin, therefore, cannot establish the first element of a prima facie case of tortious interference with prospective business relations.

Accordingly, summary judgment is proper as to Martin's claims against Kroger and Hembree for tortious interference with existing and prospective business relations.

III. Conclusion

In this action, Martin has submitted no evidence to indicate that Hembree qualifies as an employer for the purposes of liability under the TCHRA. Therefore, Martin's TCHRA claims against Hembree in his individual capacity must be dismissed for failure to state a claim upon which relief can be granted. Summary judgment, therefore, is warranted as to Martin's employment discrimination and retaliation claims against Hembree in his individual capacity.

Martin has presented insufficient summary judgment evidence in support of her contentions that she suffered an adverse employment action with respect to her compensation, her authority as a supervisor, her workload, or the attribution of credit for her accomplishments. She also has not shown that similarly situated, non-black or male employees were treated more favorably with regard to these issues. Furthermore, Martin has provided inadequate evidence that she was qualified for a promotion to the Facility Engineering Department's assistant manager position. Moreover, Martin has failed to proffer sufficient evidence that she was replaced by a non-black or a male employee or that non-black or male employees under similar circumstances were treated more favorably than she with regard to her termination. Martin, therefore, cannot establish prima facie cases of disparate treatment in terms and conditions of employment, failure to promote, or discriminatory discharge under the TCHRA. Even if Martin had established a prima facie case of race or gender discrimination, Kroger has set forth adequate, nondiscriminatory reasons for its actions, which Martin has failed to demonstrate were merely a pretext for discrimination. Consequently, summary judgment is proper as to Martin's claims of race and gender discrimination under the TCHRA.

Although Martin may be able to establish a prima facie case of retaliatory discharge under the TCHRA, Kroger has adduced ample evidence of non-retaliatory reasons for her termination, which Martin has failed to rebut. Thus, summary judgment is also appropriate as to Martin's retaliation claims.

Finally, because Martin has failed to establish that a genuine issue of material fact exists with regard to her claims against Kroger and Hembree for tortious interference with existing and prospective contracts, summary judgment in favor of the defendants is mandated. Moreover, to the extent Martin's claim of tortious interference with existing business relations restates her employment discrimination claim, it is preempted by the TCHRA.

Accordingly, Kroger and Hembree's Motion for Summary Judgment is GRANTED. Martin has failed to present a claim that would entitle her to relief. There remain no material facts in dispute, and Kroger and Hembree are entitled to judgment as a matter of law.

IT IS SO ORDERED.

19990915

© 1992-2003 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.