1

REVISED

United States Court of Appeals,

Fifth Circuit

No. 96-11348

Summary Calendar.

Frances E. WALTON, Plaintiff-Appellant,

v.

BISCO INDUSTRIES, INC., Defendant-Appellee.

Aug. 19, 1997.

Appeal from the United States District Court for the Northern

District of Texas.

Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Frances E. Walton appeals a summary judgment on her race and

sex discrimination claims brought pursuant to title VII of the

Civil Rights Acts of 1964, 42 U.S.C. § 2000e et seq. Finding no

error, we affirm.

I.

Walton, a black female, was employed beginning in September

1990 as a Cell Manager at Bisco Industries, Inc. ("Bisco"). Cell

Managers are expected to obtain a minimum annual net profit of 6%.

During her first year, however, Walton achieved a net profit of

only 0.3%. Bisco counseled Walton and indicated that she needed to

improve.

After Walton failed to meet the profit target in her second

year, she was placed on a ninety-day probationary period in July
2

1992 and was required to achieve break-even bottom line net income.

When she failed to do so, she was terminated. During her two-year

tenure at Bisco, sales in the Texas Cell declined by more than

$300,000.

Walton was replaced by a white male and filed a charge of

discrimination with the Equal Employment Opportunity Commission

("EEOC"). After the EEOC determined that Walton had not been

discriminated against impermissibly, she filed the instant action,

alleging that she was terminated because of her sex and race. The

district court granted summary judgment for Bisco, finding that,

although Walton had alleged sufficient facts to create a genuine

issue of material fact regarding whether Bisco's proffered reason

for her termination was pretextual, she had failed to put forth any

evidence to support her claim that Bisco had intentionally

discriminated.

II.

Walton argues that the district court erred in granting

summary judgment after finding that she had produced evidence

suggesting that Bisco's proffered reason for her termination was

pretextual. According to Walton, "it is clear that once the

District Court had determined that Walton had shown a prima facie

case, and created a genuine issue of fact as to whether Bisco's

proffered reasons for her termination were in fact the motivation

for its decision, it had no choice but to submit the case to the

jury."

We review a summary judgment de novo. See Hanks v.
3

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th

Cir.1992). Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." FED.R.CIV.P. 56(c).

The parties do not contest the proper allocation of burdens of

production in employment discrimination cases: First, the

plaintiff must establish a prima facie case of discrimination;

second, if he is so successful, the defendant must articulate some

legitimate, nondiscriminatory reason for the challenged employment

action; and third, if the defendant is so successful, the

inference of discrimination raised by the prima facie case

disappears, and the plaintiff then must prove, by a preponderance

of the evidence, both that the defendant's articulated reason is

false and that the defendant intentionally discriminated. See St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742,

2748-49, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 252-55, 101 S.Ct. 1089, 1093-94, 67

L.Ed.2d 207 (1981). If the defendant has successfully rebutted the

presumption created by the prima facie case—that plaintiff's

rejection was racially motivated—the factual inquiry proceeds to a

new level of specificity. Id. at 255, 101 S.Ct. at 1094.

To sustain a finding of impermissible discrimination, the

evidence taken as a whole must create (1) a fact issue regarding

whether each of the employer's stated reasons was what actually
 

1See also Polanco v. Austin, 78 F.3d 968, 976 (5th Cir.1996)

("The Supreme Court in Hicks explained that a plaintiff must prove

both that his employer discriminated against him and that

discrimination was a motivating factor in the treatment the

plaintiff received."). 

 

2See also Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 n.

8 ("But St. Mary's requires more of the plaintiff than simply

negating the employer's defense. The St. Mary's Court was clear in

its directive: the employee has the burden of persuasion at

trial."). 

4

motivated it and (2) a reasonable inference that race or sex was a

determinative factor in the actions of which plaintiff complains.

See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996)

(en banc). Although the evidence necessary to support an inference

of discrimination may vary from case to case, " "if the evidence

put forth by the plaintiff to establish the prima facie case and to

rebut the employer's reasons is not substantial, a jury cannot

reasonably infer discriminatory intent.' " Ontiveros v. Asarco

Inc., 83 F.3d 732, 734 (5th Cir.1996) (quoting Rhodes, 75 F.3d at

994).

The plaintiff cannot succeed by proving only that the

defendant's proffered reason is pretextual. See St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2751, 125 L.Ed.2d

407 (1993).1 Rather, "a reason cannot be proved to be "a pretext

for discrimination' unless it is shown both that the reason was

false, and that discrimination was the real reason." Id. (emphasis

in original).2

III.

As Bisco concedes that Walton has made out her prima facie

case, we proceed to investigate Bisco's proffered reason for her
5

termination, i.e., that she failed to meet the required profit

margin in two successive years and after having been placed on a

probationary period. During her tenure, sales in the Texas Cell

declined by over $300,000. This is a sufficient, nondiscriminatory

reason for termination.

To support her pretext argument, Walton asserts that two white

male Bisco employees who previously held her position as Cell

Manager also failed to show a profit but had not been terminated.

According to Walton, one such manager was promoted, while the other

resigned.

Bisco counters that the promoted manager in fact improved the

office's performance in other respects, while the resigned manager

did generate profits. Bisco argues further that it terminated a

third white male Cell Manager in the Arlington office for failing

to show a profit, and that it had terminated five other sales

managers company-wide, all of whom were white and four of whom were

male, for failing to meet the profit margin requirement.

We assume arguendo that Walton's evidence is sufficient to

create a genuine issue of material fact concerning whether Bisco's

proffered reason for her termination was in fact the actual reason.

Walton urges therefore that our inquiry is complete, as St. Mary's

requires nothing more to survive a motion for summary judgment. We

disagree.

In St. Mary's, the Court reviewed the McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

burdens of production, noting that once the plaintiff has satisfied
 

3Although the Court in St. Mary's was reviewing a motion for

judgment as a matter of law following a jury verdict in favor of

the plaintiff, whereas in the instant case we are reviewing a grant

of summary judgment, the different procedural postures does not

affect our inquiry, given that the standards of FED.R.CIV.P. 50 and

56 are the same. See Rhodes, 75 F.3d at 993 n. 4. 

6

his burden to make out the prima facie case, McDonnell Douglas

compels the defendant to produce evidence that the adverse

employment actions were undertaken for a legitimate,

nondiscriminatory reason. See St. Mary's, 509 U.S. at 506-07, 113

S.Ct. at 2746-47.3 Once the defendant has presented evidence that,

"if believed by the trier of fact, would support a finding that

unlawful discrimination was not the cause of the employment

action," the shifted burden of production becomes "irrelevant."

Id. at 507, 113 S.Ct. at 2747 (emphasis in original). "The

plaintiff then has the full and fair opportunity to demonstrate ...

that the proffered reason was not the true reason for the

employment decision and that race was." Id. at 507-08, 113 S.Ct.

at 2746-47 (internal quotes and citation omitted) (emphasis added).

Although the St. Mary's Court noted that "rejection of the

proffered reasons will permit the trier of fact to infer the

ultimate fact of intentional discrimination," it continued that

rejection of the proffered reasons does not compel judgment for the

plaintiff. Id. at 511, 113 S.Ct. at 2749 (emphasis in original) &

n. 4 ("Even though (as we say here) rejection of the defendant's

proffered reasons is enough at law to sustain a finding of

discrimination, there must be a finding of discrimination."

(emphasis in original)). Thus, "nothing in law would permit us to
 

4To the extent that Walton believes that we have construed St.

Mary's incorrectly, we note that absent an intervening Supreme

Court decision or a decision by this court sitting en banc, we are

bound by a prior panel's interpretation. See Federal Deposit Ins.

Corp. v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993). 

7

substitute for the required finding that the employer's action was

the product of unlawful discrimination, the much different (and

much lesser) finding that the employer's explanation of its action

was not believable." Id. at 514-15, 113 S.Ct. at 2750-51.

We have read St. Mary's therefore correctly to require that

the plaintiff do more than simply negate the employer's proffered

reasons: The plaintiff retains the burden of production with

respect to the alleged impermissible discrimination. See

Bodenheimer, 5 F.3d at 959 n. 8.4 In Rhodes, we did not diverge

from the Bodenheimer construction of St. Mary's, but rather

reiterated that "[t]he employer, of course, will be entitled to

summary judgment if the evidence taken as a whole would not allow

the jury to infer that the actual reason for the discharge was

discriminatory." Rhodes, 75 F.3d at 994.

Although we recognized in Rhodes that there may be a certain

subset of cases in which the trier of fact may be able to infer

discriminatory intent from "substantial evidence that the

employer's proffered reasons are false," id., such does not alter

the plaintiff's ultimate burden of persuasion.

The evidence may, for example, strongly indicate that the

employer has introduced fabricated justifications for an

employee's discharge, and not otherwise suggest a credible

nondiscrimination explanation.

By contrast, if the evidence put forth by the plaintiff

to establish the prima facie case and to rebut the employer's
 

5Accord Polanco, 78 F.3d at 976-77 ("If the factfinder's

verdict apparently rejects the defendant's proffered reason, enough

evidence must exist in the record for the factfinder to infer that

discrimination was the true reason for the disparate treatment.").

8

reasons is not substantial, a jury cannot reasonably infer

discriminatory intent.

Id.5 We must ask therefore whether, assuming that Walton has

presented sufficient evidence from which a jury could conclude that

Bisco's proffered reason for her termination was pretextual, that

evidence, plus whatever additional evidence put forth by Walton, is

sufficient for a jury to infer that discrimination was the true

reason for her allegedly disparate treatment.

Separate from her pretext evidence, Walton has offered

nothing to suggest that impermissible discrimination underlies her

termination. First, Walton argues that Bisco prevented her from

taking any actions that may have improved her financial performance

and that she "was restricted to doing what her supervisors

instructed her to do." Even if believed, this evidence does not

support an inference of impermissible sex or race discrimination,

absent additional evidence demonstrating that Walton, as a black

female, was treated differently from others similarly situated at

Bisco.

 Second, Walton contends that the fact that she was pregnant

at the time she was terminated indicates impermissible sex

discrimination. No one at Bisco with supervisory authority to fire

her had been apprised of her pregnancy, however. Not only does

Walton concede that she had not told Boush that she was pregnant
9

prior to her discharge, but she also does not even allege that any

Bisco supervisor had knowledge of her pregnancy.

 Finally, Walton ponders why she was not simply demoted to a

sales representative position rather than being terminated from

Bisco altogether. According to Walton, "[t]his sort of decision is

clearly not a good use of Bisco's resources." Be that as it may,

we do not view the discrimination laws as vehicles for judicial

second-guessing of business decisions. See Guthrie v. Tifco

Indus., 941 F.2d 374, 378 (5th Cir.1991).

Because Walton has failed to produce any evidence of unlawful

discrimination separate from her pretext evidence, we must ask

whether hers is within the Rhodes subset of cases in which "[a]

jury may be able to infer discriminatory intent ... from

substantial evidence that the employer's proffered reasons are

false." Rhodes, 75 F.3d at 994. We do not believe that this is

such a case; the evidence put forth to rebut Bisco's reason for

her termination is not substantial enough to permit an inference of

discrimination. See id.

Walton does not dispute that she failed to attain the 6%

profit margin. She admits that she was made aware of the

requirement and that she was also counseled by Boush in July 1992

regarding her inability to meet the FY '91 and FY '92 sales and

financial projections. She was placed on probation and was made

aware that failure to meet the conditions of the probation would

cause Bisco to evaluate her future employment. Thus, the proffered

reason for Walton's termination—her failure to meet the required
 

6Walton disputes only whether the Arlington Cell Manager in

fact occupied that position during the years alleged by Bisco. 

10

financial margins—was not created post hoc, but was a known

condition of continued employment.

With respect to Dan McCarthy, a former Cell Manager who Walton

alleges also suffered losses as Cell Manager but was promoted to

Area Manager, Bisco responded (and Walton does not contest) that he

had been promoted based upon his work in improving the office's

performance in other respects. Thus, the McCarthy evidence

demonstrates that Cell Managers who fail to generate profits yet

contribute to the improvement of the company in other respects are

candidates for promotion, whereas others, such as Walton, who fail

both to generate sufficient profits and to contribute to the firm

in other ways are candidates for termination.

It is not discrimination to treat differently situated

persons differently. Steve Crabtree, the second Cell Manager who

Walton contends was not fired for failing to achieve the profit

requirement, resigned voluntarily in his second year after failing

to attain the requirement. His voluntary resignation does not

permit the inference that, had he failed to resign, he would have

been allowed to remain as Cell Manager.

Furthermore, Walton does not contest Bisco's evidence that it

had fired, firm-wide, five other Cell Managers, all of whom were

male and four of whom were white, for failure to attain the profit

requirement, nor that another white male in the Arlington office

had been fired for the same reason.6 Finally, when asked
 

7Walton testified as follows:

Q: What facts made you think you were discharged from

employment because of your race?

A: Because of the ongoing process that Steve Boush took

me through, not just the day of termination, the

ongoing.

Q: What ongoing process?

A: The ongoing of the way he treated me, the way he

talked down to me, the way he spoke to me, the tone

in which—that he used with me.

Q: How did he treat you differently than other white

sales managers?

A: I don't know how he treated other managers in other

offices.

Q: What did he say to you that leads you to believe that

race is the reason you were discharged from Bisco?

A: I don't recall.

Q: Other than your perception that he talked down to

you, what facts lead you to believe that you were

discharged from employment because of your race?

A: I don't recall.

Q: How about your sex? What leads you to believe you

were discharged from employment because of your

sex?

A: I don't recall. 

11

repeatedly during her deposition why she believed that she had been

discriminated against, Walton was unable even to allege any

specific facts.7

IV.

Walton has failed to produce either substantial evidence of

pretext from which a jury could infer discriminatory intent or

other evidence creating a reasonable inference that her sex or race
12

was a determinative factor in Bisco's decision to terminate her.

The judgment, accordingly, is AFFIRMED.