1 United States Court of Appeals,

Fifth Circuit.

No. 96-20994.

Ahsan Ahmad FARUKI; Ahmed R. Azeez; Zafar M. Agha PlaintiffsAppellants,

v.

PARSONS S.I.P., INC., Defendant-Appellee.

Sept. 29, 1997.

Appeal from the United States District Co urt for the Southern

District of Texas.

Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Plaintiffs-Appellants Ahsan Ahmad Faruki, Ahmed R. Azeez, and

Zafar M. Agha appeal the summary judgment dismissal of their claims

based on the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.,

and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §

621 et seq., against Defendant-Ap pellee Parsons S.I.P., Inc.

("Parsons"). For reasons that follow, we affirm in part, reverse

in part, and remand for proceedings consistent with this opinion.

I

Faruki, Agha, and Azeez, Pakistani males over the age of

forty, were employed as senior process engineers in P arson's

Processing Engineering Department ("Department"). G. Kin Taylor,

an Anglo-American male, has managed this Department since 1988. In

his capacity as manager, he supervised all process en gineers and

was ultimately responsible for their job performance.

Parsons discharged Faruki in May 1993, and it discharged Agha2

in January 1994. Azeez tendered his resignation to Parsons,

effective February 1994, and immediately joined M.W. Kellogg, a

Parsons's competitor. Azeez alleges, however, that he was

constructively discharged. Appellants brought suit, each claiming

that thei r terminations were motivated by discriminatory animus.

In particular, they assert Parsons discharged them because of their

national origin and their age, in vi olation of Title VII of the

Civil Rights Act of 1964 ("Title VII") and in violation of the Age

Discrimination in Employment Act of 1967 ("ADEA"), respectively.

The district court found that Azeez failed to raise a genuine

issue of material fact as to whether he was constructively

discharged from his position at Parsons, and it therefore granted

Parson's motion for summary judgm ent against him. Assuming,

without deciding, that Faruki and Agha each made a prima facie

showing under Tit le VII and the ADEA, the court then found that

Parsons had articulated legitimate non-discriminatory reasons for

terminating Faruki and Agha, and that Faruki and Agha failed to

show these reasons were pretextual and that the real reason for the

discharge was discrimination. The court therefore granted Parson's

motion for su mmary judgment against them. Appellants timely

appeal.

II

We review a grant of summary judgment d e novo, viewing the

facts and inferences in the light most favorable to the non-movant.

See Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir.1996).

Summary judgment is appropriate if "the pleadi ngs, depositions,3

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

a ny material fact and that the moving party is entitl ed to a

judgment as a matter of law." Fed.R.Civ.P. 56(c); a ccord Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551 , 91

L.Ed.2d 265 (1986).

III

Title VII proscribes an employer from, i nter alia,

discharging an individual because of his or her national origin.

See 42 U.S.C. § 2000e-2(a)(1). The ADEA proscribes similar

treatment on the basis of age. S ee 29 U.S.C. § 623(a)(1). The

same evidentiary procedure for allocating burdens of proof applies

to discrimination claims under both statutes. S ee Meinecke v. H &

R Block of Houston, 66 F.3d 77, 83 (5th Cir.1995); B odenheimer v.

PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir.1 993) (citations

omitted).

To establ ish discriminatory discharge under Title VII, a

plaintiff must first establish a prima facie case of discrimination

by demonstrating that she: (1) is a member of a protected class;

(2) was discharged; (3) was qualified for the position from which

she was discharged; and (4) was replaced by a member of an

unprotected class. See Meinecke, 66 F.3d at 83; Vaughn v. Edel,

918 F.2d 517, 521 (5th Cir.1990). "In cases where the employer

discharges the plaintiff and does not plan to replace her, we have

held that the fourth element is, more appropriately, that after

[the] discharge others who were not members of the protected class4

remained in similar positions." M einecke, 66 F.3d at 83 (internal

quotation marks and citation omitted) (a lteration in original).

The first three elements of a prima facie case of age

discrimination are identical to those of a Title VII prima facie

case. S ee id. The fourth element is similar, although we have

worded it somewhat differently: The plaintiff must show that she

"was either i) replaced by someone outside the protected class, ii)

replaced by someone younger, or iii) otherwise discharged because

of [her] age." R hodes v. Guiberson Oil Tools, 75 F.3d 989, 992

(5th Cir.1996) (citing Bodenheimer, 5 F.3d at 957); Meinecke, 66

F.3d at 83 (citation omitted).

The prima facie case, if established, raises a presumption of

discrimination, which the defendant must rebut by articulating a

legitimate, non-discriminatory reason for its action. S ee

Bodenheimer, 5 F.3d at 957. If the defendant carries this burden,

then the presumption raised by the plaintiff's prima f acie case

disappears. See Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

The plaintiff must then prove tha t the defendant's proffered

reasons are not the true reason for the employment decision and

that unlawful discrimination is. S ee St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d

407 (1993). The plaintiff retains the ultimate burden of

persuasion throughout the case. S ee Burdine, 450 U.S. at 253, 101

S.Ct. at 1093.

A5

As stated above, Azeez must show, as part of his prima facie

case, that he was discharged. Where, as here, an employee resigns,

she may satisfy the discharge requirement by proving constructive

discharge. S ee Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297

(5th Cir.1994). To prove constructive discharge, a plaintiff must

establish that working conditions were so intolerable that a

reasonable employ ee would feel compelled to resign. S ee id. In

our determ ination, we consider many factors relevant, including

evidence of badgering, harassment, or humiliation by the employer

calculated to encourage the emplo yee's resignation. S ee id.

(listing various factors).

Summarizing the evidence that it had considered on t his

issue, the district court concluded that Azeez had failed to show

a factual dis pute on the issue whether he was constructively

discharged. We disagree. Our review of the court's Memorandum and

Opinion reveals that the court failed to address Azeez's most

compelling evidence of constructive discharge, viz., Azeez's

deposition testimony that Taylor had told Azeez that Azeez should

find another job, as Parsons would be u nable to retain him, and

that he had one week before he would be placed on indefinite unpaid

leave. Taking this allegation as true, as we must, and drawing all

justifiable inferences in his favor, see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 10 6 S.Ct. 2505, 2513, 91 L.Ed.2d 202

(1986), we conclude that Azeez has established a genuine issue of1 Our conclusion obviates the need to address the merits of the

remainder of Azeez's summary judgment evidence—as summarized by the

district court—relevant to this discharge issue.

6 material fact on the discharge element of his prima facie case. 1

Cf. Burks v. Oklahoma Pub. Co

., 81 F.3d 975, 978 (10th Cir.1996)

(recognizing that employee can prove constructive discharge by

showing that she faced choice between resigning or being fired),

cert. denied,

--- U.S. ----, 117 S.Ct. 302, 136 L.Ed.2d 220 (1996);

Jenkins v. State of LA., Thru Dep't of Corrections, 874 F.2d 992,

996 (5th Cir.1989) (stating that constructive discharge can be

proven with evidence that plaintiff-employee was given ultimatum).

Summary judgment is still appropriate, however, if the record

demonstrates that Azeez cannot establish the remainder of his prima

facie case or if it demonstrates that Parsons had a legitimate,

non-d iscriminatory reason for its action. Parsons concedes that

Azeez is a member of a protected class, and it points to no

evidence showing that Azeez was unqualified for his position.

Parsons does dispute, however, whether Azeez has shown that he was

replaced by a member of an unprotected class. Indeed, Taylor

testified tha t Azeez was not replaced. The summary judgment

evidence reveals, however, that Parsons hired four senior process

engineers, all of whom are Anglo-American and one of whom was under

the age of forty, in a two-week perio d beginning five days after

Taylor told Azeez that he would be placed on indefinite unpaid

leave. This inconsistency creates a fact issue that is

inappropriate for summary judgment resolution. Moreover, Parsons

has failed to articulate any legitimate, nondiscriminatory reasons2 In particular, with respect t o Agha, the court considered

Taylor's deposition, Agha's deposition, a memo written by section

manager Bob Dawn, and a memo written by company supervisor J.J.

Powers. With respect to Faruki, the court considered a memo

written by Powers and a four-page report written by manager Steve

Woods.

7 for its employment decision. A fact issue thus exists as to

whether Parsons's employment decision was motivated by

discriminatory animus. We therefore reverse the grant of summary

judgment as against Azeez, and remand for further proceedings.

B

Agha and Faruki both complain that the district court erred in

considering Taylo r's affidavit testimony in support of Parsons's

motion for summary judgment insofar as the affidavit is based upon

hearsay and not upon personal knowledge. We need not decide

whether Taylor's affidavit is incompetent. Our review of the

court's Memorandum and Opinion demonstrates that the court

considered evidence other than Taylor's affidavit in reaching its

conclusion. 2

As did the district court, we assume, arguendo, that Agha and

Faruki have established a prima facie case of discrimination.

Reaching the second prong of the inquiry, we agree with the

district court that Parsons presented competent summary j udgment

evidence establishing that it had legitimate, non-discriminatory

reasons for terminating both Agha and Faruki. Parsons offered

evidence demonstrating that it terminated Agha because of his poor

job performance, his difficulties in working with others, and his3 Our conclusion that Agha failed to show Parsons's proffered

reasons are pretextual is buttressed by the fact that Taylor, the

manager who terminated Agha, was the same individual who had hired

Agha. Where, as here, the same actor hires and fires an employee,

an inference that discrimination was not the employer's motive in

terminating the employee is created. S ee Brown v. CSC Logic, Inc.,

82 F.3d 651, 658 (5th Cir.1996).

4 Agha alleges that the following evidence supports his claim

that Parsons's proffered reasons are a pretex t for unlawful

discrimination: (1) the denial of his request for his own personal

office computer; (2) the denial of his request to attend a couple

of i n-house training seminars; (3) Taylor's derogatory comment

about an Indian interviewee who was later hired; and (4) the

positive comm ents of a Parsons's supervisor about Agha's work.

This evidence, either singly or in combination, does not carry

Agha's burden.

First, Agha did not present any evidence that he was the

only employee denied a personal computer, nor did he present

any evidence that only employees of South Asian descent were

denied personal computers. Second, the training seminars Agha

alleges he was not allowed to attend taught simulation and

heat exchanger skills, work that Agha was not asked to

perform. Furthermore, Agha admitted that Anglo-American

employees were also denied the opportunit y to attend these

seminars. Third, Taylor's challenged comment was not alleged

to have been repeated, an d it was remote in time to Agha's

termination for it to be indicative of discriminatory animus.

Cf. Brown, 82 F.3d at 655-56 (stating that supervisor's

isolated, remote in time, derogatory statement is not

compelling evidence of discrimination). Fourth, the positive

comments upon which Agha relies were made with respect to only

one particular project on which Agha worked and concerned work

the majority of which Agha performed in 1991-92, years before

8 inadequate technical an d leadership skills. 3 Parsons offered

evidence demonstrating that it discharge d Faruki because of his

poor job performance, his limited technical knowledge, his

inefficiency, his inability to complete assigned ta sks, and his

excessive billing. Finally, we agree with the district court that

both Agha and Faruki failed to present summar y judgment evidence

sufficient to raise a fact issue as to whether Parsons's proffered

reasons were pretextual. 4 We therefore affirm the district court'sAgha's termination in 1994.

Faruki offe rs some of this same evidence in support of

his claim. In addition, he offers evidence that one Parsons

supervisor did not believe Faruki's work just ified his

termination. As the district court pointed out, however, at

most, this evidence shows that supervisors disagreed as to the

wisdom of Taylor's decision. The relevant inquiry, however,

is only wh ether the employer's decision was discriminatory.

See McDaniel v. Temple Independent Schoo l Dist., 770 F.2d

1340, 1349 (5th Cir.1985). Faruki also submits evidence that

Taylor terminated three engineers of South Asian descent on

the same day in 1992. This conclusory allegation, without

more, does not carry Faruki's burden under Hicks. Faruki

offers no evide nce indicating the competence of these three

engineers. Finally, Faruki alleges in his affidavit that he

received favorable evaluations during the time when Pars ons

alleges it received unfavorable reports o f Faruki's work.

Faruki's allegation is conclusory however; he fails to offer

any evidence verifying his claim.

9 grant of summary judgment as against Agha and Faruki.

IV

For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART,

and REMAND FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.