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