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MARTIN v. KROGER CO.

September 15, 1999

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



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

        MEMORANDUM AND ORDER

Pending before the court is Defendants The Kroger Co. ("Kroger") and Charles Hembree's ("Hembree") Motion for Summary Judgment (# 18). Kroger and Hembree seek summary judgment on Plaintiff Elaine Martin's ("Martin") claims of racial and sexual discrimination and retaliation under the Texas Commission on Human Rights Act ("TCHRA") as well as tortious interference with existing and prospective business relations. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted.

I. Background

Kroger is a retail grocery chain with a number of stores in the Houston, Texas, area. Martin, an African-American female, began her employment with Kroger in August 1992 in the company's management training program after answering an advertisement for an engineering position. Martin graduated from Prairie View A & M University in 1986 with an electrical engineering degree. In March 1993, Hembree, the manager of the Facility Engineering Department, offered her a position as a facility engineer.

In her affidavit, Martin describes how Hembree assisted her in securing a position in Kroger's Engineering Department:

  I . . . answered Kroger's classified ad for a Facility
  Engineer. I spoke with Charles Hembree several times
  about the job, and interviewed with a number of Kroger
  employees. Hembree informed me that I had not been
  selected to fill the vacancy, and that a person with
  better qualifications than me had been hired.
  However, Hembree asked if I would be interested in
  training to become a store co-manager, which had no
  relation to the engineering department. . . . I needed
  work, in any capacity, and agreed to enter Kroger's
  store management training program in 1992, even though
  it was outside of my field and I had had no prior
  training, background or experience in such a
  position.
  While I was in Kroger's store management training
  program, Hembree contacted me and asked if I was
  interested in transferring to Facility Engineering.
  The vacancy that Hembree contacted me about was the
  same job that I had applied for and had been rejected
  previously. T. Stevens Brown, the person that Hembree
  had described to me as `better qualified,' was removed
  from that position because he did not have an
  engineering degree. (T. Stevens Brown, and I went to
  the same college, and I know that he did not complete
  his degree program.)

Martin began working as a facility engineer on March 21, 1993. In his affidavit, Hembree explains his basis for offering her the position: "I was aware that [Martin] did not have much experience in project management or the retail industry; however, I felt Ms. Martin was capable of gaining the knowledge necessary to become an effective manager and engineer."

Throughout her employment with Kroger, Martin's performance as a facility engineer was problematic. Her first employee performance appraisal, dated June 10, 1994, reflects below-average ratings in several categories. One such category is "Leadership," which addresses how the employee leads "individuals or groups to accomplish a task or accept an idea; ability to help a group or an individual arrive at a solution or goal." Martin's below-average rating of "Developmental" is followed by comments stating, "Elaine has a rather forceful, directive style. This has served her effectively without causing hostility in most cases. There is room in her leadership style to develop a more participative [sic] approach. She should understand the tasks of subordinates more thoroughly." The "Personal Impact" category assesses the employee's "[a]bility to create a good impression on others by commanding attention, respect, and showing confidence." The comments following Martin's "Developmental" rating read, "Elaine is able to gain impact but usually has to do it through force of will. She must gain the reputation of knowing what to do, how to do it, and when. By being knowledgeable in these areas, the respect will follow." Finally, the "Problem Analysis" category measures the employee's "[a]bility to identify, evaluate, and assimilate factors essential to analyzing a problem for a solution." Martin's "Developmental" rating is followed by comments stating, "Elaine often fails to properly analyze a problem because she does not link all sources of information together. She should ask more questions such as `who, what, when, where, and how.' By listening to these answers, then assimilate the data to see if it makes sense." Hembree's affidavit offers additional insight into his June 1994 assessment of her performance:

  At that time, I considered Ms. Martin to be still
  relatively new to the department and to have issues
  which were developmental in nature. In other words, I
  felt that Ms. Martin's lack of knowledge and
  experience in the retail construction field hindered
  her from performing at a higher level. I apprised Ms.
  Martin of certain deficiencies and the need for
  education in business administration and construction
  technology. I suggested Ms. Martin enroll in a seminar
  on interpreting blueprints which she took in July
  1994.

Hembree contends that he "remained optimistic that [Martin] could overcome the knowledge deficit she had."

When Martin was evaluated one year later, on June 13, 1995, she received more "Developmental" ratings, including below-average ratings in "Leadership," "Personal Impact," and "Problem Analysis." The comments following the "Leadership" category state, "Elaine has improved in this area. Her style is still rather forceful and direct. She recently completed `Models for Management' seminar. This should help her in the future to develop a more participative [sic] style." Under the "Personal Impact" category, the comments read, "Elaine displays a limited effect on the direction or the decision making of others. She is not sought after for input other than as needed to accomplish [the] task at hand. She does have some impact because of a dominant type behavior but does not command attention through confidence." Finally, the comments following the "Problem Analysis" category state, "Elaine sometimes fails to see the relevance of different factors in properly analyzing a situation. She must continue to probe more deeply when developing a plan. Ask more open ended questions. Discuss solutions to verify understanding."

A typed statement prepared by Hembree, signed by both Hembree and Martin, is attached to the evaluation, stating:

  During Elaine's early development in this department,
  her knowledge of supermarketing, and construction was
  very limited. These issues were discussed during the
  last performance evaluation. She has worked hard to
  try to learn these details and has made some
  progress. Elaine must continue to develop these
  skills.
  I believe that Elaine can become an effective manager
  in this department; however, she has developed an
  impression in many managers that she lacks the
  knowledge and skills necessary to adequately manage a
  substantial remodel project. Although her project
  results are of good quality, she does not get the
  credit that she perhaps is due. Store managers felt
  that they had to do more project administration than
  necessary in order to complete their projects. Phone
  calls, equipment follow-ups, scheduling of
  merchandisers and other communication issues are
  mentioned as hindrances to effective job performance.
  There is some concern that Elaine does not place
  enough priority on the importance of being available
  or of maintaining contact with each project.
  Unfortunately, these impressions precede her into her
  next project assignment and as a result store
  management may look for faults that might be
  overlooked in someone without this reputation.
  I continue to enjoy working with Elaine. I am somewhat
  disappointed that even though there have been
  improvements in several areas, I continue to receive
  comments about her communications, her responsiveness
  to stores, and her ability to control a project. Last
  year, many of these comments could have been
  overlooked due to the fact that Elaine was new to
  Kroger and as yet had not fully learned all the facets
  of her job. However, Elaine has spent six months in
  the co-manager training program and then another two
  years in Facility Engineering. These comments should
  be disappearing

  by now. The fact that they have persisted will make
  the demands of Elaine's job even tougher than before.

The statement also refers to two seminars that Kroger arranged for Martin to attend to further her education. These conferences provided training to Martin in engineering and construction of retail stores and supermarkets. By letter dated October 31, 1995, Hembree recommended that Martin receive 250 stock options because her performance had significantly improved.

Due to an extended leave of absence in 1995, Martin did not receive a performance evaluation in 1996. Hembree, however, describes Martin's performance during this time period in his affidavit:

  I found that she continued to display a limited
  knowledge of supermarketing and construction with no
  sign of improvement. . . . I was aware of several
  instances in which she failed to order the correct
  equipment for a project; she ordered duplicate
  equipment; she ordered unnecessary equipment which had
  to be returned; and, she failed to order the
  appropriate sizes and types of equipment, which
  resulted in delays.

Hembree also states that, despite her tenure, Martin continued to perform at a level below that of the other engineers in the department.

Martin's evaluation dated May 30, 1997, again reflected "Developmental" ratings, including below-average ratings in "Leadership," "Personal Impact," and "Problem Analysis." Hembree's typed statement attached to the evaluation elaborates on her performance:

  Elaine will soon complete her fifth year in the
  Facility Engineering department. She continues to be
  assigned within the walls remodels and new store
  projects. Her projects are usually on schedule and
  within budget.
  [The] ability to be friendly and likable is a positive
  attribute; however, when combined with her limited
  knowledge of supermarketing and construction may
  actually contribute to her lack of growth in these
  areas. Elaine has had supporters — both within
  Kroger and among our vendors — that have wanted
  her to succeed. Believing that Elaine might not know
  how her work affects the store's operation, or that
  she might not know the technical aspects of
  construction, these supporters have done what needed
  to be done on her behalf to complete a project. . . .
  As a result of this other departmental involvement,
  her projects have succeeded. If Elaine were placed
  into a situation where she did not have participants
  that were knowledgeable and supportive, her current
  level of knowledge would prevent her from delivering a
  successful project. Her current projects could show
  substantial improvement in both timing and costs if
  Elaine were more knowledgeable about the items just
  discussed. Elaine must spend a portion of each week
  learning the technical aspects of her job if she is to
  make continued progress.
  Elaine must also continue to develop her skills of
  Planning and Organizing. When presented with a well
  developed plan, she does a good job of execution. When
  left to her own devices; however, Elaine's projects
  seem to be helter-skelter. Job schedules are prepared
  as equipment becomes available and not in a logical,
  convenient order. Forward thinking about the upcoming
  tasks and knowledge of their intricacies must be
  present in order to develop a smoothly flowing
  schedule that completes itself in a manner most
  satisfying to everyone involved. The ordering of
  refrigerated equipment seems to be one example of the
  deficiencies in this skill. Equipment is sometimes
  ordered before the fixture plan or the schedule is
  finalized. There have been instances where equipment
  arrived that was not needed and had to be returned,
  equipment that was ordered incorrectly, and shortages
  of equipment that caused delays in completion of
  project elements. One would expect this sort of
  performance from

  someone who is inexperienced in remodels, but after as
  many years as Elaine has been in this job, these
  elemental processes should be better. Elaine must
  improve in her ability to organize and coordinate
  those particulars that impact her projects and to
  evolve a plan for successful completion.
  The support that Elaine has enjoyed over her career
  has begun to diminish and will continue to dwindle if
  her skills of Planning and Organizing as well as her
  knowledge of the business do not improve significantly
  in the current year. Her continued support within the
  organization has come from the recognition that Elaine
  is making any and all efforts toward doing a `first
  class' job; however, there is sufficient indication
  that others are becoming weary of bolstering Elaine on
  a continuing basis. This places her in a very
  precarious position that must be secured by immediate
  improvements in these skills in order to be assured of
  a future with this organization in the following
  year.
  I continue to enjoy working with Elaine. It is still
  disappointing that these realities and perceptions
  remain after almost five years. Elaine must continue
  to bring forth the efforts and improvements that are
  required of her.

Martin and Hembree both signed this statement.

To improve quality and reduce expenses, Kroger began remodeling its stores with the use of primarily in-house crews in 1997. The Kroger store located on Montrose Street in Houston, Texas, was the first in-house project. Randy Kottlowski ("Kottlowski"), a white male facility engineer, managed the Montrose remodeling project. Kottlowski, formerly the assistant manager of the department, was given this opportunity after he was demoted to the position of facility engineer and placed on probation on February 5, 1997, due to perceived performance problems. Upon completion of the Montrose project, Kroger estimated that it had saved approximately $100,000 through the use of an in-house crew.

In September 1997, the Kroger store in Seabrook, Texas, was identified as the next in-house remodeling project. Hembree assigned this project to Martin. In the capacity of project engineer, she was responsible for preparing a cost estimate and hiring subcontractors for the plumbing, electrical, floor tile, carpet, and painting. In addition, she was responsible for obtaining all the necessary city permits and complying with the applicable building codes. Martin was also required to review the architect's plans and familiarize herself with the specifications for the project. Hembree assigned Terry Hildebrandt ("Hildebrandt"), Kroger's lead carpenter, as the superintendent of the Seabrook project. As superintendent, Hildebrandt was responsible for overseeing the daily construction and managing the various craft crews. He had successfully served as the superintendent of the Montrose project. As the project engineer, Martin was Hildebrandt's superior.

The Seabrook project was scheduled to begin on September 15, 1997. The commencement of the project was delayed, however, when Martin failed to obtain the necessary building permit in advance of the planned start date. Unlike the Montrose project, the record reflects that the Seabrook project was fraught with problems. Ida Spearman ("Spearman"), the Seabrook store manager, describes some of these difficulties in her affidavit:

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

  for the project which interfered with the work of the
  store merchandisers and other crews. I felt she had
  poorly coordinated the project. On several occasions I
  discussed my concerns regarding Ms. Martin's handling
  of the project with Charles Hembree.
  Several times the wrong equipment or surplus equipment
  showed up at the store. My understanding was that Ms.
  Martin was responsible for ordering the equipment. For
  instance, two sets of Huggieland play equipment were
  ordered and delivered to the store. Ms. Martin said
  she would take care of the problem, however she never
  did. Additionally, Ms. Martin ordered the wrong kind
  of bascarts for the store despite my providing her
  with information for the proper carts. I had to send
  the carts back. Ms. Martin was supposed to contact the
  bank which had an ATM machine in our store in order to
  arrange for the machine to be picked up. I was forced
  to handle this task as well.
  I had numerous problems with Anthony Gaston, the
  flooring subcontractor hired by Ms. Martin. Mr. Gaston
  failed to show up when promised, would not complete
  the work he started and would leave supplies in the
  public areas of the store. For instance, Mr. Gaston
  and his workers were supposed to lay new carpet in the
  store's offices on December 31, 1997. My employees and
  I moved the furniture after Mr. Gaston and his crew
  failed to show up. When Mr. Gaston promised the crew
  would do the work on January 1, [1998], we again moved
  the furniture in preparation. Mr. Gaston called at
  7:00 p.m. that evening to say that he could not locate
  his carpet people. The work was finally completed on
  January 3, [1998]. I regularly advised Ms. Martin of
  his poor workmanship, but to no avail. I also advised
  Charlie Hembree of the poor management and oversight
  by Elaine Martin of this part of the remodel.

By October 1997, news of Martin's problems at Seabrook reached Dave Burkart ("Burkart"), Vice President of Operations at Kroger. Around October 17, 1997, Burkart met with George Anderson ("Anderson"), Kroger's Manager of Human Resources, to discuss the deficiencies in Martin's performance. In his affidavit, Anderson recalls the meeting:

  Dave Burkart . . . came to see me about the Seabrook
  project. He indicated that the quality of Ms. Martin's
  involvement in the project was less than desirable and
  that store management had complained. I sent an email
  to Charles Hembree regarding my visit from Mr.
  Burkart.

On November 25, 1997, Hembree and Anderson met with Martin and presented her with a supplemental performance evaluation. In the typed evaluation, Hembree outlines some of the problems associated with the Seabrook project:

  On May 30, 1997, Elaine's performance for 1996 was
  presented and discussed with her. This performance
  review noted skill deficiencies in several areas that
  were to show immediate improvement if Elaine were to
  be assured of a future with this organization. Since
  that time, Elaine has been assigned several projects
  in which to demonstrate adequate abilities of
  organizing and coordinating. Of her current projects,
  the within-the-walls remodel of [Seabrook] illustrates
  most clearly Elaine's lack of development in the
  elemental processes necessary for the successful
  completion of a construction project.
  Elaine's handling of this project continues to
  demonstrate the deficiencies that have been discussed
  on many past projects. Others both within the Kroger
  organization and among those outside express the same
  observations. The support that Elaine has enjoyed in
  the past appears to have been totally withdrawn based
  on these last few incidents.

Martin was not receptive to Hembree's comments and refused to sign the supplemental evaluation. Anderson describes the meeting with Hembree and Martin in his affidavit:

  Ms. Martin became extremely upset and angry during the
  meeting and refused to sign the Supplemental
  Performance Evaluation. She indicated that she did not
  intend to change her performance and that Kroger would
  just have to fire her at the end of the probation
  period. She then made reference to having been
  referred to by a racial epithet, and she also made a
  comment about "Terry and his racist ass." However,
  when we questioned her about who had allegedly made
  racial slurs, Ms. Martin absolutely refused to provide
  any more information. She made a statement to the
  effect that it would "all come out in court." She then
  left the office. Prior to that time, I had not been
  notified by Ms. Martin or anyone else that any Kroger
  employees or subcontractors had made racially
  derogatory comments. Furthermore, Ms. Martin never
  complained of sex or gender-based discrimination in
  that or any other meeting.

On January 26, 1998, Martin was ill and did not report to work. The following day, she was involved in an automobile accident. On February 6, 1998, Martin provided a medical release which indicated that she would not be returning to work until February 20, 1998. Maria Gutierrez-Webber ("Gutierrez"), a Kroger Human Resources assistant, wrote to Martin on March 6, 1998, explaining:

  According to our records, you have been off from work
  on an expired leave of absence since March 2, 1998.
  Company policy concerning leave of absences is as
  follows:
    "All leaves of absence for longer than 14
    consecutive days, except military leaves in
    accordance with federal laws, must be requested in
    writing and approval or denial by management
    communicated to the employee in writing."
  Company policy concerning extensions for leaves for
  illness, injury, or pregnancy, must be requested in
  writing with a supporting medical statement from the
  attending physician prior to each expiration date to
  the approved leave.
  It is necessary for you to complete the enclosed leave
  of absence form and attach a statement from your
  attending physician, indicating all of the following:
  1.  Date of disability (in conjunction with approved
      leave that began 08/01/97)
2.  Date of initial treatment
3.  Reason for disability (nature of illness)
4.  Anticipated return to work date.
  Please be advised that is [sic] this requested
  information is not received in Human Resources within
  seven (7) days from receipt of this letter that you
  are subject to termination for failure to return from
  a leave of absence. . . .

On March 26, 1998, Gutierrez sent another letter to Martin, stating:

  I received the documents you supplied in support of
  extending your leave of absence. These documents do
  not include a date for your release to return to
  work, as required by the company's leave of absence
  procedures. Failure to do so, within 72 hours from
  receipt of the letter will result in termination for
  failure to return from a leave of absence.

The record does not disclose whether Martin ever responded to this letter.

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

  Q:  . . . Ms. Martin, we were talking about how long
      [you] were out after your car accident before your
      doctors released you to return to work. Isn't it
      correct that you didn't return to work at Kroger
      after you had the car accident?
A:  Right.

The Fifth Circuit has consistently held that "[i]t is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony." S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); see Crowe v. Henry, 115 F.3d 294, 298 n. 4 (5th Cir. 1997). Therefore, to the extent that Martin's affidavit is inconsistent with her deposition testimony, the court cannot consider it. Hembree, Brett Smollen ("Smollen"), a facility engineer who was later promoted to assistant manager, and Anderson confirm that Martin did not return to work until April 28, 1998. In any event, Martin's employment with Kroger was terminated when she reported to work that day.

Martin filed a charge of employment discrimination with the Texas Commission on Human Rights ("TCHR") and the Equal Employment Opportunity Commission ("EEOC") on December 9, 1997, asserting claims of race and sex discrimination as well as retaliation under the TCHRA. She amended her charge on February 5, 1998, to expand on her retaliation claim. At her request, Martin received a right-to-sue notice on March 20, 1998, and instituted this action in state court on May 14, 1998. Kroger removed the case to federal court on July 6, 1998, based on diversity of citizenship. In her original petition, Martin sought recovery for race and gender discrimination and retaliation in violation of the TCHRA and also asserted claims alleging negligent retention, wage and hour violations, tortious interference with existing and prospective business relations, and intentional infliction of emotional distress. On July 22, 1999, after Kroger filed its motion for summary judgment, Martin dismissed her claims for negligent retention, wage and hour violations, and intentional infliction of emotional distress. Thus, Martin currently seeks to recover for race and gender discrimination and retaliation under the TCHRA as well as for tortious interference with existing and prospective business relations.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The parties seeking summary judgment bear the initial burden of informing the court of the basis for their motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). The moving parties, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Little v. Liquid Air Co., 37 F.3d 1069, 1075 (5th Cir. 1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); see Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir. 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997). "`The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Reves v. Ernst & Young, 507 U.S. 170, 190 n. 3, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); see Marshall, 134 F.3d at 321. Nonetheless, "`only reasonable inferences can be drawn from the evidence in favor of the nonmoving party.'" Eastman Kodak Co. v. image Tech. Servs., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (emphasis in original). "If the [nonmoving party's] theory is senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Id. at 468-69, 112 S.Ct. 2072.

The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

B. Claims Brought Under The TCHRA

Martin asserts race and gender discrimination claims under the TCHRA against Kroger and Hembree. The TCHRA provides:

  An employer commits an unlawful employment practice if
  because of race, color, disability, religion, sex,
  national origin, or age the employer:
    (1) fails or refuses to hire an individual,
    discharges an individual, or discriminates against
    an individual in connection with compensation or the
    terms, conditions, or privileges of employment; or
    (2) limits, segregates, or classifies an employee or
    applicant for employment in a manner that would
    deprive or tend to deprive an individual of any
    employment opportunity or adversely

    affect in any other manner the status of an
    employee.

TEX.LAB.CODE ANN. § 21.051. "The legislature drafted the TCHRA to `correlat[e] state law with federal law in the area of discrimination in employment.'" Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (quoting Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991)); accord NME Hosp., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999); see Thompson v. City of Arlington, 838 F. Supp. 1137, 1153 (N.D.Tex. 1993); Elstner v. Southwestern Bell Tel. Co., 659 F. Supp. 1328, 1345 (S.D.Tex. 1987), aff'd, 863 F.2d 881 (5th Cir. 1988). The statute specifically states that one of its purposes is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C. § 2000e et seq.)." TEX.LAB.CODE ANN. § 21.001; see NME Hosp., Inc., 994 S.W.2d at 144; Caballero v. Central Power & Light Co., 858 S.W.2d 359, 361 (Tex. 1993); Schroeder, 813 S.W.2d at 485; Passons v. University of Tex. at Austin, 969 S.W.2d 560, 563 n. 4 (Tex.App.-Austin 1998, no pet.); Gold, 960 S.W.2d at 380.

In keeping with the expressed legislative intent, the TCHRA is interpreted in a manner consistent with federal laws prohibiting employment discrimination. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); see also Elstner, 659 F. Supp. at 1345. "In analyzing Plaintiff's claims under the Texas Commission on Human Rights Act, the court utilize[s] the same analysis as provided by the ADEA and Title VII." Deaver v. Texas Commerce Bank, 886 F. Supp. 578, 585 (E.D.Tex. 1995), aff'd, 79 F.3d 1143 (5th Cir. 1996) (citing Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.-Houston [1st Dist.] 1993, writ denied)); see Gifford v. Lone Star Steel Co., 2 F. Supp.2d 909, 911 (E.D.Tex. 1997); Caballero, 858 S.W.2d at 361. Indeed, the Texas Supreme Court has observed that, as Texas courts have had little opportunity to interpret the TCHRA, it is appropriate to seek guidance from cases interpreting Title VII. See Specialty Retailers, Inc., 933 S.W.2d at 492; Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 232 (Tex. 1993). Therefore, the analysis of Martin's claims under the TCHRA is identical to that applied to similar claims brought under Title VII. See Colbert v. Georgia-Pacific Corp., 995 F. Supp. 697, 700 (N.D.Tex. 1998). "Because the TCHRA is the state counterpart to Title VII, the same standards apply." Allison v. City of Fort Worth, 60 F. Supp.2d 589, 593 (N.D.Tex, 1999) (citing Farrington, 865 S.W.2d at 251; Schroeder, 813 S.W.2d at 485).

1. Statute of Limitations

The TCHRA establishes a comprehensive administrative review system for obtaining relief from unlawful employment practices. See Schroeder, 813 S.W.2d at 485; Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex.App.-Austin 1990, no writ). Before suing for redress, an employee must exhaust the administrative remedies available under the Act. See Caballero, 858 S.W.2d at 360; Schroeder, 813 S.W.2d at 486. A person claiming to be aggrieved by an unlawful employment practice must file a complaint with the TCHR within 180 days of the alleged discriminatory act. See TEX.LAB.CODE ANN. § 21.202(a) ("A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred"); Specialty Retailers, Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 486; Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41 (Tex.App.-Austin 1998, no pet.); O'Bryant v. City of Midland, 949 S.W.2d 406, 417 (Tex.App.-Austin 1997, pet. granted); Vincent v. West Tex. State Univ., 895 S.W.2d 469, 473 (Tex.App.-Amarillo 1995, no writ); Eckerdt, 802 S.W.2d at 71. These requirements ensure that "the Commission [has an] opportunity to investigate the allegations, informally eliminate any discrimination, and minimize costly litigation." Vincent, 895 S.W.2d at 473. The time limit for filing a complaint with the Commission is mandatory and jurisdictional. See Specialty Retailers, Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 488; O'Bryant, 949 S.W.2d at 417; Vincent, 895 S.W.2d at 473. State law claims of employment discrimination are time-barred when filed after the 180-day period, while the same claims brought under federal law would be timely if filed within 300 days of the alleged discriminatory conduct. See Pope v. MCI Telecommunications Corp., 937 F.2d 258, 263-64 (5th Cir. 1991), cert. denied, 504 U.S. 916, 112 S.Ct. 1956, 118 L.Ed.2d 558 (1992).

The courts, however, have recognized an equitable exception "`"where the unlawful employment practice manifests itself over time, rather than as a series of discrete acts."'" Webb v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998) (quoting Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989) (quoting Abrams v. Baylor College of Med., 805 F.2d 528, 532 (5th Cir. 1986))); see Wal-Mart Stores, Inc., 979 S.W.2d at 41. In order to extend the statute of limitations under this exception, known as a continuing violation, the plaintiff must show a series of related acts, one or more of which falls within the limitations period. See Huckabay v. Moore, 142 F.3d 233, 238-39 (5th Cir. 1998) (citing Messer, 130 F.3d at 134-35); Webb, 139 F.3d at 537; Waltman, 875 F.2d at 474; Wal-Mart Stores, Inc., 979 S.W.2d at 41; see also Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). "Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. He must show an organized scheme leading to and including a present violation." Huckabay, 142 F.3d at 239; see Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). "[I]t is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Huckabay, 142 F.3d at 239; see Messer, 130 F.3d at 135; Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1561 (5th Cir. 1985). "A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (citing Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997) (citing Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481-82 (3d Cir. 1997))); Taylor v. FDIC, 132 F.3d 753, 765 (D.C.Cir. 1997); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996); Berry, 715 F.2d at 981. Application of this theory relieves a plaintiff from the burden of proving that the entire violation occurred within the limitations period, as long as she can show that at least one of the alleged discriminatory acts occurred within the applicable time period. See Huckabay, 142 F.3d at 238 (citing Messer, 130 F.3d at 135); Webb, 139 F.3d at 537.

The Fifth Circuit has adopted a multi-factor test to assess whether a continuing violation is implicated. See Huckabay, 142 F.3d at 239; Berry, 715 F.2d at 981. These factors include subject matter, frequency, and permanence:

  This inquiry, of necessity, turns on the facts and
  context of each particular case. Relevant to the
  determination are the following three factors, which
  we discuss, but by no means consider to be
  exhaustive. The first is subject matter. Do the
  alleged facts involve the same type of
  discrimination, tending to connect them in a
  continuing violation? The second is frequency. Are the
  alleged acts recurring (e.g., a biweekly paycheck) or
  more in the nature of an isolated work assignment or
  employment decision? The third factor, perhaps of most
  importance, is degree of permanence which should
  trigger an employee's awareness and duty to assert his
  or her rights, or which should indicate to the
  employee that the continued existence of the adverse
  consequences of

  the act is to be expected without being dependent on a
  continuing intent to discriminate?

Id.; accord Huckabay, 142 F.3d at 239. "Importantly, however, the particular context of individual employment situations requires a fact-specific inquiry that cannot easily be reduced to a formula." Id.

"The core idea of the continuing violation theory is that `equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated.'" Webb, 139 F.3d at 537 (quoting Glass, 757 F.2d at 1560-61). "`The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.'" Id. (quoting Glass, 757 F.2d at 1561 (citations omitted)); see also Messer, 130 F.3d at 135; Abrams, 805 F.2d at 534. If a plaintiff knows or with the exercise of reasonable diligence would have known that she suffered from discrimination, she "may not sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one." Moskowitz v. Trustees .of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993). Thus, as the First Circuit noted:

  A knowing plaintiff has an obligation to file promptly
  or lose his claim. This can be distinguished from a
  plaintiff who is unable to appreciate that he is being
  discriminated against until he has lived through a
  series of acts and is thereby able to perceive the
  overall discriminatory pattern.

Sabree, 921 F.2d at 402; Martin v. Frank, 788 F. Supp. 821, 826 (D.Del. 1992).

In the case at bar, it is undisputed that Martin waited until December 9, 1997, to file a charge of discrimination with the EEOC. Therefore, unless a continuing violation is established, Martin may only recover for conduct that occurred on or after June 9, 1997, 180 days before the filing of her charge. In her affidavit, Martin states:

  I observed and experienced the effects of offensive
  racial and/or sexist communications and actions
  throughout my employment with Kroger. For example,
  Nancy Taylor, a white Co-Manager stated on or about
  October 18, 1992 that she needed to "nigger-rig" a
  copier because she could not get it to work. Another
  Kroger employee indicated to Taylor that she should
  watch her language because I was present, but Taylor
  replied that she did not care about me standing
  there. . . .
  My store management training program mentor singled me
  out and told me on or about November 11, 1992 that I
  would always have problems at Kroger, that I probably
  would not be "good enough," and that I had a slim
  chance of ever succeeding in employment with Kroger.
  Others in the store management training program at
  that time were not given similar discouraging advice.
  On or about January 20, 1993, Store Manager Clif
  Shears (white) told me that my degree did not mean
  anything in the eyesight of many within Kroger's
  organization and that I would not receive any special
  privileges because of my race. . . . Additionally, in
  1993, Randy Kotlowski [sic] (white), an Engineer,
  asked me if my recently deceased father lived in [the]
  same household with is [sic] children, whether he had
  insurance, and whether he had a job. In February
  1996, during a work-related conversation between me
  and Co-Manager Freddy Aguilar (Hispanic), Aguilar told
  me "I don't give a damn that your ass is black" and
  said that "I will knock your black ass out." I
  reported each of these statements to Hembree and other
  Kroger employees such as Linda Murphy (black) and
  Roman Williams (black).
  Not only was I subjected to offensive racist and
  sexist communications and behavior by Kroger
  employees, I also had to endure such treatment from
  contractors on the various projects that were assigned
  to me. . . .

These assertions indicate actual knowledge of perceived discriminatory treatment for over five years before Martin filed her charge of employment discrimination. See Waltman, 875 F.2d at 476. The events as Martin describes them would have alerted the average lay person to act to protect her rights. See Alldread v. City of Grenada, 988 F.2d 1425, 1432 (5th Cir. 1993). "A knowing plaintiff has the obligation to file promptly or lose [her] claim." Smith v. Bath Iron Works Corp., 943 F.2d 164, 166 (1st Cir. 1991). If Martin believed that Kroger was discriminating against her, she should have reacted well before December 1997. "Waiting to see what would happen next was pointless; the harm, if any, was already inflicted." Rush, 113 F.3d at 483. Accordingly, the continuing violation theory is not available to Martin, and consequently, her claims of racial and sexual discrimination and retaliation based on events occurring prior to June 9, 1997, are time-barred.

2. Individual Liability of Supervisors

A review of the record reveals that Martin's claims against Hembree arise solely from his actions as a supervisory employee of Kroger. Under Texas law, employees cannot be held personally liable under the TCHRA, as the Act does not create a cause of action against supervisors or individual employees. See Thompson, 838 F. Supp. at 1153; City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex.App.-Austin 1992, no writ). Similarly, it is well settled in the Fifth Circuit that individual employees, even those functioning in a supervisory capacity, cannot be held personally liable under Title VII, as they are not "employers" as that term is defined in Title VII. See Grant v. Lone Star Co., 21 F.3d 649, 652-53 (5th Cir.), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); accord Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451 n. 2 (5th Cir. 1994); Clanton v. Orleans Parish Sch. Rd., 649 F.2d 1084, 1099 (5th Cir. 1981).

Here, Martin has submitted no evidence to indicate that Hembree qualifies as an employer for the purposes of liability under the TCHRA. Among the various parties subject to liability under the TCHRA, the Texas Legislature could have made an individual employee committing or engaging in discriminatory acts liable for damages. It did not. Therefore, Martin's employment discrimination and retaliation claims against Hembree in his individual capacity must be dismissed for failure to state a claim upon which relief can be granted.

C. Race and Gender Discrimination Under The TCHRA

1. Burden of Proof

In McDonnell Douglas and Burdine, the United States Supreme Court outlined the evidentiary framework generally applicable to employment discrimination cases. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This method of analysis is utilized for both Title VII and TCHRA claims. See Williams, 98 F.3d at 180; see also Schroeder, 813 S.W.2d at 485. Where, as here, there is no direct evidence of discrimination, the plaintiff must initially establish a prima facie case by satisfying a multi-factor test from which a discriminatory motive may be inferred, thus creating a rebuttable presumption of intentional discrimination. See Wallace, 80 F.3d at 1047 (citing Meinecke v. H & R Block, 66 F.3d 77, 83 (5th Cir. 1995)); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994) (citing Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089). "`To establish a prima facie case, a plaintiff need only make a very minimal showing.'" Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)).

Once the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate — but not prove — a legitimate, nondiscriminatory reason for its employment decision. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Davis, 14 F.3d at 1087; see also Marcantel v. Department of Transp. & Dev., 37 F.3d 197, 199 (5th Cir. 1994). "The employer must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, `if believed by the trier of fact,' would support a finding that unlawful discrimination was not the cause of the employment action." Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). If the employer meets its burden, the prima facie case is dissolved, and the burden shifts back to the plaintiff to establish that the reason proffered by the employer is merely a pretext for discrimination. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Travis v. Board of Regents, 122 F.3d 259, 263 (5th Cir. 1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998); Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997); Marcantel, 37 F.3d at 200; Moham v. Steego Corp., 3 F.3d 873, 875 (5th Cir. 1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). To demonstrate a "pretext for discrimination," the plaintiff must show both that the employer's proffered reason is false and that discrimination was the real reason for its actions. See Hicks, 509 U.S. at 515, 113 S.Ct. 2742. "The plaintiff now must have `"the full and fair opportunity to demonstrate," through presentation of [her] own case and through cross-examination of the defendant's witnesses, "that the proffered reason was not the true reason for the employment decision,"' and that unlawful discrimination was." Bauer, 169 F.3d at 966 (quoting Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089)). At all times, however, the plaintiff has the ultimate burden to prove intentional discrimination. See Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Marcantel, 37 F.3d at 200.

The Fifth Circuit has formulated the plaintiffs burden under Hicks as one of establishing that the employer's nondiscriminatory reason is not credible and that an unlawful discriminatory intent motivated the employer's action. See Walton v. Bisco Indus., Inc., 119 F.3d 368, 370 (5th Cir. 1997); Polanco v. City of Austin, 78 F.3d 968, 977-76 (5th Cir. 1996); Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1249 (5th Cir. 1995). "Under Hicks, `[i]t is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.'" Id. (quoting Hicks, 509 U.S. at 519, 113 S.Ct. 2742); see Walton, 119 F.3d at 370. "The question is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); accord Odom v. Frank, 3 F.3d 839, 850 (5th Cir. 1993); Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). In the context of a motion for summary judgment, "a jury issue will be presented and a plaintiff can avoid summary judgment . . . if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [plaintiffs protected status] was a determinative factor in the actions of which plaintiff complains." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996); see Ontiveros v. Asarco, Inc., 83 F.3d 732, 734 (5th Cir. 1996). The burdenshifting approach may be dispensed with altogether, however, if the plaintiff is able to demonstrate intentional discrimination by direct evidence of discriminatory motive. See Wallace, 80 F.3d at 1047-48; Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir. 1987); Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980).

2. Prima Facie Case of Discrimination

a. Disparate Treatment in Terms and Conditions of Employment

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

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

(2) she is qualified for the position;

(3) she suffered an adverse employment action; and

  (4) others outside the class who are similarly
      situated were treated more favorably.

See id.; Nieto v. L & H Packing Co., 108 F.3d 621, 623 n. 5 (5th Cir. 1997); Waggoner v. City of Garland, 987 F.2d 1160, 1163-64 (5th Cir. 1993); Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir. 1988); Thornbrough, 760 F.2d at 639.

Martin's ability to meet the first and second elements of a prima facie case under a disparate treatment theory is uncontested. As an African-American female, Martin is indisputably a member of two protected classes. She appears to be qualified for the position of facility engineer in view of her engineering degree and her five years of experience. Kroger, however, contests Martin's ability to show that she suffered an adverse employment action, aside from her termination, or that similarly situated, non-black employees were treated more favorably.

The anti-discrimination provisions of the TCHRA and Title VII prohibit adverse employment actions based on an employee's protected status. See Tex.LAB. CODE ANN. § 21.051; 42 U.S.C. § 2000e-2. In situations where the plaintiff does not allege severe and pervasive harassment, actionable adverse employment actions are generally limited to "tangible employment action[s] [that] constitute [] a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998); see Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999) (change in work schedule and being asked to perform tasks not previously assigned are not adverse employment actions); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996) (reassignment to different division is not adverse employment action); Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (transfer without reduction in pay or benefits does not constitute adverse action). "`Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.'" Messer, 130 F.3d at 140 (quoting Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)); accord Webb, 139 F.3d at 540; Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir.), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997); Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981).

An ultimate employment decision, in itself or through its direct consequences, must effect a material change in the terms or conditions of employment. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). "`Although actions short of termination may constitute an adverse employment action within the meaning of the statute, not everything that makes an employee unhappy is an actionable adverse action.'" Greaser v. Missouri Dep't. of Corrections, 145 F.3d 979, 984 (8th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 620, 142 L.Ed.2d 559 (1998) (quoting Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 689 (8th Cir. 1997)); accord Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Interlocutory or mediate decisions, even those that can lead to an ultimate employment decision, are not adverse employment actions for purposes of Title VII. See Mattern, 104 F.3d at 708. The Seventh Circuit has explained:

  "[A] materially adverse change in the terms and
  conditions of employment must be more disruptive than
  a mere inconvenience or an alteration of job
  responsibilities. . . . A materially adverse change
  might he indicated by a termination of employment, a
  demotion evidenced by a decrease in wage or salary, a
  less distinguished title, a material loss of
  benefits, significantly diminished material
  responsibilities, or other indices that might be
  unique to a particular situation."

Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1112 n. 7 (7th Cir. 1998) (quoting Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)); Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996).

"[E]mployment actions are not adverse where pay, benefits, and level of responsibility remain the same." Watts, 170 F.3d at 512; see Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (reassignment to a different position without any reduction in title, salary, or benefits was not adverse employment action although new position involved different duties and was more stressful); Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (semantic change in title and "bruised ego" did not constitute adverse employment action where pay, benefits, and level of responsibility remained the same); Crady, 993 F.2d at 136 (no adverse action where job transfer merely caused personal inconvenience or altered job responsibilities). Accordingly, a supervisor's treatment of an employee "rudely and uncivilly does not amount to an adverse employment action." Webb, 139 F.3d at 540. Even a "verbal threat of being fired" is not an adverse employment action because of its "lack of consequence." Mattern, 104 F.3d at 708. While it may increase an employee's chance that she will eventually suffer an adverse employment action, such a threat, in itself, is not an ultimate employment decision and does not "rise above having mere tangential effect on a possible future ultimate employment decision." Id. Similarly, negative performance evaluations, even if undeserved, are not adverse employment actions giving rise to actionable discrimination claims. See Speer v. Rand McNally & Co., 123 F.2d 658, 664 (7th Cir. 1997); Smart, 89 F.3d at 442; see also Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994). "[N]egative performance evaluations, standing alone, cannot constitute an adverse employment action," Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (citing Smart, 89 F.3d at 442); accord Dela Rosa v. Scottsdale Mem. Health Sys., Inc., 132 F.3d 38, 1997 WL 753359, at *2 n. 3 (9th Cir. Dec. 2, 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 50, 142 L.Ed.2d 38 (1998) (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995)); Montandon, 116 F.3d at 359.

Here, Martin attempts to show that similarly situated, non-black, male employees were treated more favorably than she by relying on allegations of non-material, tangential events and actions, most of which find no support in the record. She contends in her petition:

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

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

Martin also complains that she received lower pay than non-black, male engineers. In essence, Martin alleges that Kroger engaged in actionable conduct with respect to her compensation, her authority as a supervisor, her workload, and the attribution of credit for her accomplishments.

With regard to compensation, Martin claims in her petition that "Hembree caused, facilitated and/or participated in disparate compensation practices" and that she was "compensated at a lower rate than males in her job classification, regardless of the amount and quality of work she performed and irrespective of her greater training and education in the engineering field." Yet, in her charge of discrimination filed with the TCHR and EEOC, Martin made no mention of unequal compensation. It is well settled that courts are without jurisdiction to consider claims brought under the TCHRA or Title VII as to which an aggrieved party has not first exhausted his administrative remedies by filing a charge of discrimination with the TCHR or EEOC. See Caballero, 858 S.W.2d at 360; Schroeder, 813 S.W.2d at 486; see also 42 U.S.C. § 2000e-5 (f)(1); Dollis, 77 F.3d at 781; National Ass'n of Gov't Employees v. City Pub. Serv. Rd., 40 F.3d 698, 711 (5th Cir. 1994); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994); Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990); Patridge v. Runyon, 899 F. Supp. 291, 292 (N.D.Tex. 1995). Civil complaints filed under the TCHRA or Title VII may only encompass "`discrimination like or related to allegations contained in the [TCHR or EEOC] charge and growing out of such allegations during the pendency of the case before the Commission.'" National Ass'n of Gov't Employees, 40 F.3d at 711 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)); see Dollis, 77 F.3d at 781; Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993); Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990).

The primary purpose of the charge is to provide notice to the respondent of the discrimination alleged and to activate the voluntary compliance and conciliation functions of the EEOC. See Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th Cir. 1981), vacated on other grounds, 456 U.S. 968, 102 S.Ct. 2229, 72 L.Ed.2d 841 (1982); Sanchez, 431 F.2d at 466; Hebert v. Monsanto Co., 1981 WL 313, at *3 (S.D.Tex. Sept.2, 1981), aff'd, 682 F.2d 1111 (5th Cir. 1982). The charge triggers an investigation by the EEOC so, through a conciliation process, voluntary compliance may be obtained and discriminatory practices and policies eliminated. See Terrell, 644 F.2d at 1123; Sanchez, 431 F.2d at 466. Requiring the plaintiff first to state his allegations of employment discrimination in an EEOC charge serves "Congress' intention to promote conciliation rather than litigation in the Title VII context." Burlington Indus., Inc., 118 S.Ct. at 2270. Accordingly, the scope of the complaint is limited to "`the discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge.'" National Ass'n of Gov't Employees, 40 F.3d at 712 (quoting King v. Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir. 1976)); see Clark, 18 F.3d at 1279-80; Terrell, 644 F.2d at 1123; Sanchez, 431 F.2d at 465-66. Thus, the failure to assert a claim of discrimination in an EEOC charge and/or its lack of development in the course of a reasonable investigation of that charge precludes the claim from later being brought in a civil suit. See National Ass'n of Gov't Employees, 40 F.3d at 711-12; Young, 906 F.2d at 179; Sanchez, 431 F.2d at 465-66. Here, pay is not mentioned or even alluded to in the charge, and Martin's unequal compensation claim cannot be said to be reasonably related to the specific acts of racial and sexual discrimination set forth in her charge of discrimination, which are directed at alleged racial slurs, undermining her authority, Hildebrandt's purported problem with working with females, and Martin's placement on probation. See Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1401-03 (2d Cir. 1993). Thus, because Martin has failed to exhaust her administrative remedies on this issue, the court is without subject matter jurisdiction over her compensation claim. See Snooks, 996 F. Supp. at 690 (citing Thornton v. Neiman Marcus, 850 F. Supp. 538, 541 (N.D.Tex. 1994)); see also O'Bryant, 949 S.W.2d at 417.

Martin's compensation claim is also time-barred. Her allegations of unequal pay pre-date the 180-day limitations period by months or years. See TEX.LAB.CODE ANN. § 21.202(a); Specialty Retailers, Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 486; Davis, 979 S.W.2d at 41; Vincent, 895 S.W.2d at 473; Eckerdt, 802 S.W.2d at 71. At deposition, Martin testified:

  Q:  "Plaintiff was compensated at a lower rate than
      males in her job classification, regardless of the
      amount and quality of work." What facts do you
      have to support that claim? You need to explain
      that to us.
  A:  I asked the human resources manager at the time,
      Fred Smith, was he indeed being paid more money.
Q:  Who is "he"?
  A:  The other guy, the other engineer prior to me,
      Steven. And Fred says yes.
  Q:  Being paid more than you when you started the
      job?
A:  Yes.
  Q:  All right. Other than your allegation that Mr.
      Smith told you that this Steve Person was paid at
      a higher rate than you, is there anybody else that
      you're complaining of that was compensated at a
      higher rate than you that was your
      classification?
A:  I can't think of any. The other —
  Q:  Well, who are the other engineers that you worked
      with while you were at Kroger?
A:  What are their names?
  Q:  Right. Let's go through one at a time and ask you
      if that person was paid more than you, if they
      were of the same job classification and same
      rank, et cetera,
A:  Brett Smollen, he's an engineer. Cliff Brown.
  Q:  Now, Brett Smollen was promoted to a higher
      position; is that right? He became the assistant
      manager of engineering?
A:  Are we talking prior to his promotion?
  Q:  What was your question [to Fred Smith]? Did you
      ask him was every single engineer paid more that I
      and he said yes?
  A:  No. My question was if — if I'm not
      qualified enough, how do we qualify moneys and is
      every male hired — that is hired in Kroger
      at the same level I am paid more. And he said
      yes.
  Q:  Well, did you routinely go to HR to ask about
      salaries of people who no longer worked at Kroger
      and hadn't worked there for a year or more?
  A:  When I was constantly being told by employees that
      he wasn't qualified and he was making plenty of
      money, then I wanted to know what plenty of money
      meant for a guy with no degree versus me with
      one. Maybe I should have been making plenty of
      money.
Q:  Who were the employees who told you that?
  A:  Ray Patch was the one that did most of the
      talking.
Q:  He didn't work in human resources, did he?
  A:  No. But none of the other people that got
      confidential information worked there either.
  Q:  I'm asking you what makes you think that this
      person Ray Patch knew for a fact what T. Stevens'
      salary was and what your salary was, for that
      matter.
  A:  Evidently he was getting the information from
      someone in human resources.
  Q:  Okay. You understand you're under oath. I'm not
      asking you to guess. I'm going to object to the
      extent you're speculating. I'm asking you what
      facts you have to support this claim that T.
      Stevens or that Ray Patch knew for a fact T.
      Stevens was paid more than you.
A:  I never asked for evidence.
Q:  You don't know for sure?
A:  Right.

In addition to Martin's admission that she had no facts to support her unequal compensation claim, the record reflects that the evidence upon which she attempts to rely arose years before the limitations period, as T. Stevens was terminated in 1993 and Smith had ceased to be the Human Resources Manager long before June 9, 1997.

In an apparent effort to resurrect this claim, Martin points to a handwritten note dated February 27, 1997, also pre-dating the limitations period. This document, ostensibly signed by Anderson, purports to list the grade level and bonus levels of three Kroger engineers. It states, in part:

  (1) Clifton Brown should be a level 35 with a bonus
  level of $6,000.
  (2) Elaine Martin should be a level 31 with a bonus
  level of $4,000.
  (3) Randy Kottlowski should be a level 37 with a bonus
  level of $7,500.

Yet, aside from being untimely, Martin has failed to establish the authenticity of this document. This writing, therefore, cannot be considered competent evidence of Kroger's compensation practices. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) ("[u]nauthenticated documents are improper as summary judgment evidence") (citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991)).

Furthermore, in addition to is speculative nature, much of this purported evidence is merely hearsay and, as such, is inadequate to defeat summary judgment. See Garcia v. Reeves County, 32 F.3d 200, 204 (5th Cir. 1994); Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 283 (5th Cir. 1991); see also Barhan v. Ry-Ron Inc., 121 F.3d 198, 202 (5th Cir. 1997). Moreover, even assuming that some of the other engineers at Kroger were paid more than Martin, this alone does not give rise to an inference of race or sex discrimination — especially in light of Martin's lack of prior experience and documented performance deficiencies. There is no evidence concerning the level of experience or education of these other engineers, their productivity, or the quality of their work. Thus, if Martin's compensation claim were properly before the court and not timebarred, she still has failed to proffer competent evidence of discriminatory compensation practices.

Martin's allegations about undermining her authority as a supervisor, increasing her workload, and giving credit for her work to undeserving non-minorities, simply do not rise to the level of adverse employment actions for which the antidiscrimination provisions of the TCHRA provide relief. These purported actions effected no direct, material change in Martin's terms and conditions of employment; at most, they had only a tangential effect. Furthermore, Martin has provided no evidence that male or non-black supervisors or employees were treated more favorably with regard to their authority, workload, or recognition. At deposition, Martin conceded that she has no evidence to support her claim that non-black, male engineers received more favorable treatment with respect to the exercise of their authority:

  Q:  What makes you think that Mr. Hembree allowed
      Terry Hildebrandt to undermine your authority?
  A:  When Terry would tell me or some of the other
      workers what he wasn't going to do and he got it
      approved through Charlie to do that.
  Q:  Do you know whether Terry got any decisions
      approved through Charlie with respect to any of
      the other three engineers.
  A:  I know of mine that I questioned Charlie on; and
      he said, yeah, he told him to do it or not to do
      it. But I can't say about the others.
  Q:  That's what I'm asking is, you don't know, then,
      whether Terry might have gone to Mr. Hembree
      concerning projects he was working on with either
      of these other engineers, Randy, Brett, or Cliff,
      and gotten changes approved through Mr. Hembree
      that way?
A:  No, I don't know.

Martin also testified that Hembree allowed Hildebrandt, without Martin's authorization, to spend money and "take charge and override" her judgment. Martin, however, admitted at deposition that she has no evidence to suggest that Hembree did not permit Hildebrandt to do the same thing with regard to the white, male engineers or that he treated non-minorities more favorably in this regard.

While Martin also alleges that Hembree discriminated against her by assigning her to construction projects of greater scope and budget than other engineers, she conceded at deposition that she has no evidence that the other engineers, in fact, had a ...


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