1

 Unless otherwise noted, the background facts are undisputed by the parties and are

taken from the parties’ summary judgment briefs and appendixes. (“BOA’s Br.,” “Bell’s Br.,”

“BOA’s App.,” and “Bell’s App.”) References are also made to Bell’s deposition and to the

affidavit of Bell’s supervisor, Larry West. (“Bell’s Depo.” and “West Aff.”)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARY BELL, )

Plaintiff, )

)

v. ) Civil Action No. 3:03-CV-2650-B

)

BANK OF AMERICA, )

Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This is an employment discrimination suit brought pursuant to Title VII, Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17. The District Court referred Defendant Bank

of America’s (“BOA’s”) Motion for Summary Judgment (“Motion”) to the United States Magistrate

Judge for Findings, Conclusions, and Recommendation. The Court has considered BOA’s Motion,

Brief, Appendix, and Reply and Plaintiff Mary Bell’s (“Bell’s”) Brief in Opposition and Appendix.

The Court finds that Bell has not shown that a genuine issue of material fact exists with respect to

any of her claims in this suit and recommends that the Court grant BOA’s Motion in its entirety.

I. BACKGROUND FACTS1

BOA employed Bell, an African American female, as an investment administrator in BOA’s

Community Development Financial Institution (“CDFI”) Department. (BOA’s App. 7-8, Bell’s

Depo. 16-17.) The CDFI Department makes loans to small businesses and to non-profit

organizations who focus on helping individuals obtain affordable housing. (BOA’s App. 0009,

 

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 Bell’s unverified claim is that the actual transfer date of the CDFI Department to the

Bank’s Charitable Investment Group and the Foundation Team took place on or about the fourth

week in August 2003. She claims the elimination of her position in Dallas took place over thirty

days later. (Bell’s Br. 4.) She does not dispute that BOA reorganized and eliminated her Dallas

position and that her position in Dallas was never refilled. 

2

Bell’s Depo. 37.) The CDFI Department was in the Community Development Equity Section of

Community Development Banking until a reorganization occurred late in 2003.2

 (BOA’s App.

0010, 0097, Bell’s Depo. 38, West Aff. ¶ 3.) As part of the reorganization, the CDFI Department

became part of BOA’s Charitable Investments Group and Foundation Team. (Id.) The Department

later changed its name to Program Related Investments. (BOA’s App. 0097, West Aff. ¶ 3.)

Part of Bell’s job as an investment administrator was to provide administrative support for

the CDFI Department’s clients. (BOA’s App. 0017, Bell’s Depo. 45.) BOA employed two

investment administrators in Dallas, Bell and Janice Barnhart (“Barnhart”), a Caucasian female.

(BOA’s App. 0007-8, 0017, 0062, Bell’s Depo. 16-17, 45, 111.) BOA assigned certain clients to

Bell and others to Barnhart. (BOA’s App. 007-8, Bell’s Depo. 16-17, 45.) The investment

administrators’ responsibilities included maintaining an updated database of information and

ensuring that interest payments were posted to accounts. (BOA’s App. 0018, Bell’s Depo. 46.) 

Larry West, Assistant Vice President and Senior Investment Administrator, supervised Bell

and Barnhart from his office in Sarasota, Florida. (BOA’s App. 0010, 19, 98, Bell’s Depo. 38, 50,

West Aff. ¶ 4-5.) West’s supervisor was Mary Schultz (“Schultz”), Senior Vice President and

Community Development Equity Manager. (BOA’s App. 0019, 0098, West Aff. ¶ 5, Bell’s Depo.

50.) She was located in Sarasota, Florida. (Id.) West provided assistance to Bell and Barnhart by

telephone. (BOA’s App. 0019, Bell’s Depo. 50.) Bell talked to West daily. (BOA’s App. 0019,

Bell’s Depo. 50.) Bell felt that she worked more independently than Barnhart and that Barnhart

 

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called West with questions more frequently than Bell did. (BOA’s App. 0019-20, Bell’s Depo. 50-

51.)

Bob Bidel (“Bidel”), Senior Vice President and Senior Investment Manager in the CDFI

Department, who was located in Dallas, was also available to assist Bell and Barnhart. (BOA’s App.

0010-11, 98, Bell’s Depo. 38-39, West Aff. ¶ 5.) Technically, Bidel did not supervise Bell and

Barnhart, but he assisted them because he was the only CDFI officer in Dallas at the time. (BOA’s

App. 0098, West Aff. ¶ 5.) Schultz supervised Bidel, as well as West. (BOA’s App. 0098, West

Aff. ¶ 5.)

On October 2, 2003, Bidel told Bell that BOA was eliminating Bell’s and Barnhart’s

positions in Dallas and terminating their employment. (BOA’s App. 0015-17, Bell’s Depo. 43-45.)

BOA’s elimination of the investment administrator position was part of the restructuring in which

the CDFI Department was moved from Community Development Banking to the Charitable

Investments Group and Foundation Team. (BOA’s App. 0007, 0016, 0087, 97-98, Bell’s Depo. 16,

44, West Aff. ¶¶ 3-4.) 

Bell and Barnhard stopped working for BOA on October 2, 2003, but BOA allowed them

to use their offices and BOA’s phones and computer until October 31, 2003. (BOA’s App. 0016-17,

Bell’s Depo. 44-45.) BOA paid Bell through November 3, 2003. (Id.)

When Bell and Barnhart heard rumors about a possible restructuring that would involve the

elimination of their jobs, Barnhart began looking for a new position with BOA. (BOA’s App. 0012-

14, Bell’s Depo. 40-42, 136.) Bell was not eligible for transfer to another position under BOA’s

guidelines because her performance had not been satisfactory. (BOA’s App. 0014, 0021, Bell’s

Depo. 42, 55.) Nevertheless, BOA made an exception to its transfer policy because Bell’s position

 

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 Bell states in her unverified response that “Barnhart went around the 18th floor

discussing the actually [sic] position with other employees and the consensus was those were our

jobs with a higher level pay grade attached.” (Bell’s Br. 5.) Bell attempts to present hearsay

evidence that “there was no pay increase above [her] and Barnhart’s earnings.” (Bell’s Br. 5,

Bell’s App. 3, Memo from Exult Recruiting Solutions to Larry West re: a new hire.) Hearsay 

evidence does not create a genuine issue of material fact. Fowler v. Smith, 68 F.3d 124, 126 (5th

Cir. 1995). The Court will discuss this issue in more detail in its analysis of Bell’s retaliation

claim.

4

was being eliminated. (BOA’s App. 0021, Bell’s Depo. 55.) BOA told Bell that she was eligible

for rehire and could apply for other jobs within BOA. (Id.) BOA also offered Bell a severance

package through its Corporate Severance Program. (BOA’s App. 0006-7, 0087, Bell Depo. 15-16,

Bell’s Oct. 31, 2003 letter.)

After BOA terminated Bell and Barnhart, their investment administrator positions no longer

existed. (BOA’s App. 0008, Bell’s Depo. 17.) No one was hired to replace them. (Id.) BOA

created one senior investment administrator position in Sarasota, Florida, in addition to the senior

administrator position that was already there. (BOA’s App. 008, 0014-15, 98, Bell’s Depo 17, 42-

43, West Aff. ¶ 6.) The senior administrator positions are at a higher level than the former

positions.3

 (Id.) Before Bell’s and Barnhart’s Dallas positions were eliminated, West supervised

them from Florida. (Id.) The reorganization resulted in the senior administrator positions being

supervised in Florida, where the supervisor was located. (Id.) 

II. PROCEDURAL HISTORY

Bell filed suit against BOA on October 29, 2003, alleging race discrimination in violation

of 42 U.S.C. § 2000e-2(a)(1) and retaliation in violation of 42 U.S.C. § 2000e-3(a). BOA filed a

Motion for Summary Judgment on December 15, 2004. Bell filed her Brief in Opposition on

January 3, 2005, and BOA filed a Reply on January 18, 2005.

 

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 Defendant seeks to exclude Appendix Nos. 1-11, 13-15, 18-19, and Exhibits Nos. 6-7,

11, 13, and 23-24. 

5

 Bell’s statements made as part of the EEOC investigation are her Exhibit Nos. 11 and

13. 

5

III. EVIDENTIARY OBJECTIONS

As an initial matter, the Court addresses BOA’s Objections to Bell’s Summary Judgment

Evidence (“BOA Obj.”), filed January 18, 2005. First, BOA requests that the Court exclude a

number of Bell’s documents because they have not been properly authenticated.4 (BOA Obj. 1-2.)

The Fifth Circuit Court of Appeals does not require conclusive proof of authenticity. McConathy

v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 562 (5th Cir. 1998) citing, United States v. Lopez, 873

F.2d 769, 772 (5th Cir. 1989); United States v. Scurlock, 52 F.3d 531, 538 (5th Cir. 1995). “The

requirement of authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its proponent claims."

FED. R. EVID. 901(a). Next, BOA objects to two exhibits that appear to be part of Bell’s Equal

Employment Opportunity Commission (“EEOC”) file.5 Finally, BOA objects to a number of Bell’s

statements as hearsay, objects to other statements as consisting of speculation and subjective belief,

and objects to still more statements as lacking a proper foundation.

Evidence on summary judgment may be considered to the extent that it is not based on

hearsay or other information that is not admissible at trial. Fowler, 68 F.3d at 126. Statements that

are conclusory and based upon speculation will not be considered. See Brown v. City of Houston,

Tex., 337 F.3d 539, 541 (5th Cir. 2003) (holding that unsubstantiated assertions, improbable

inferences, and unsupported speculation are not sufficient to defeat a motion for summary

judgment). This Court will consider only competent summary judgment evidence in considering

 

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6

whether the District Court should grant Summary Judgment in favor of BOA. Further, this Court

will give the evidence in the record the weight that it deserves. Accordingly, BOA’s objections are

noted and overruled for purposes of summary judgment.

IV. ANALYSIS

Under FED. R. CIV. P. 56(c), summary judgment is appropriate when the pleadings and

record evidence show that no genuine issue of material fact exists and that, as a matter of law, the

movant is entitled to judgment. Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). In a motion

for summary judgment, the burden is on the movant to prove that no genuine issue of material fact

exists. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). To determine

whether a genuine issue exists for trial, the court must view all of the evidence in the light most

favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could

return a verdict for the non-movant. See Chaplin v. Nations Credit Corp., 307 F.3d 368, 371-72 (5th

Cir. 2002).

A. Bell’s Allegations of Racial Discrimination under Title VII

Title VII makes it unlawful for an employer to discriminate against any individual “with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In her EEOC

charge, Bell claimed that BOA discriminated against her on the basis of race in violation of Title VII

by (1) denying her a merit pay increase for 2002, (2) providing Barnhart data input assistance two

weeks before providing Bell assistance, (3) asking Bell to get a cashier’s check by February 5, 2003,

and giving her short notice of a closing, (4) failing to give her a phone number and instructions

directly, rather than asking her to get them from Barnhart, and (5) placing a written warning in her

 

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 The “hierarchy” was the way electronic information about the CDFI Department’s

clients was organized and stored on BOA’s computer system. (BOA’s App. 98, West Aff. ¶ 9.) 

Bell alleges that she had to redo her work, and that she suffered feelings of frustration and

aggravation. (BOA’s App. 0061, Bell’s Depo. 124.) 

7

personnel file on March 7, 2003. In her Complaint, Bell additionally alleges that BOA discriminated

against her on the basis of her race by (1) failing to give her the passwords for a website around

March 31, 2003, (2) placing a customer complaint in her personnel file, (3) failing to inform her

about a change in the “hierarchy,”6

 and (4) failing to give her as many “reward points” as she

deserved, while giving Barnhart more “reward points” than Bell thought Barnhart deserved. She

also complains that Barnhart missed a deadline for sending out client letters when Bell met the

deadline. 

 As a preliminary matter with respect to Bell’s racial discrimination claims, BOA contends

that Bell has not exhausted her administrative remedies, except with respect to the five claims that

were the basis of Bell’s EEOC charge. Bell claims that the additional charges alleged in her

complaint are not separate claims, but are support for her contention that she was treated less

favorably than Barnhart. (BOA’s App. 23-24, Bell’s Depo. 57-58.) A Title VII action is limited in

scope to the EEOC investigation that can reasonably be expected to grow out of the charge of

discrimination. Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990) (citing Sanchez

v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). Bell’s additional claims, while not

specifically addressed in the EEOC charge, are of the type that are reasonably encompassed within

its investigation. Accordingly, the Court will consider all of Bell’s allegations.

The elements of a prima facie case of racial discrimination are as follows: (1) the plaintiff

is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse

 

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employment action, and (4) the employer gave non-members of the protected class more favorable

treatment because of their race. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995). 

When a plaintiff attempts to prove her racial discrimination claim by indirect evidence, as Bell does

here, she must first demonstrate a prima facie case of discrimination. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). 

Once a plaintiff demonstrates a prima facie case, the defendant then has the burden of

production to articulate a legitimate, non-discriminatory reason for its actions. Id. In Desert Palace,

Inc. v. Costa, 539 U.S. 90, 101 (2003), the United States Supreme Court arguably altered the third

step of the McDonnell Douglas test for circumstantial evidence cases with mixed-motive theories

of discrimination Boyce v. Bank of America Technology and Operations Div., No. Civ A 3:03-CV0770-B, 2004 WL 2545015 *4 (N.D. Tex. 2004). The Fifth Circuit has modified the third step of

the McDonnell Douglas test accordingly. Id.; see Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312

(5th Cir. 2004). To survive summary judgment under the modified McDonnell Douglas test, after

the defendant articulates a legitimate non-discriminatory reason for its actions, a plaintiff must now

produce evidence raising a fact question that either (1) the defendant’s reason is not true, but is

instead a pretext for discrimination, or (2) that the defendant’s reason, while true, is only one of the

reasons for its conduct and that racial discrimination was a motivating factor. Id. A plaintiff must

still produce either direct or circumstantial evidence of a discriminatory motivating factor to avoid

summary judgment. Id.

1. Bell’s Failure to Earn a Merit Pay Increase for Her 2002 Performance

Bell first claims that West’s decision not to give her a merit pay increase based upon her

performance in 2002 was motivated by racial discrimination. (BOA’s App. 0036, 0098, Bell’s

 

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Depo. 62-63, West Aff. ¶ 7.) BOA moved for summary judgment on the grounds that (1) it

produced evidence of a legitimate, non-discriminatory reason for its decision, and (2) Bell has not

raised a fact issue regarding pretext or a discriminatory motivating factor.

With respect to Bell’s allegations regarding the pay raise, Bell's prima facie case consists of

evidence that (1) she was a member of a protected class; (2) she sought a merit pay increase; and

(3) she did not receive one. Bell has failed to demonstrate a prima facie case of race discrimination.

Bell has not demonstrated by any competent summary judgment evidence that she was qualified

for the merit pay increase. Further, the fourth element of a prima facie case is missing, i.e., she did

not show that someone outside the protected class with similar qualifications received a raise. Bell

attempted to meet the fourth element by claiming that West treated Barnhart, a Caucasian who held

the same position, more favorably than he treated her in that he (1) helped Barnhart more than he

helped Bell; (2) gave Barnhart key information that Bell had to get from Barnhart, rather than West;

and (3) gave Barnhart more reward points than he gave Bell. These incidents have nothing to do

with the pay raise decision, and they do not show that someone outside the protected class with

similar qualifications received a pay raise.

Even if the Court assumes that Bell demonstrated a prima facie case of race discrimination,

BOA has produced evidence of a legitimate, non-discriminatory reason for its actions, namely that

Bell’s performance in 2002 did not justify a merit pay increase. (BOA’s App. 0036, 98, Bell’s

Depo. 78, West Aff. ¶ 7.) West discussed Bell’s performance review with her in October 2002, and

told her she would not get a raise for 2003. (BOA’s App. 0026-28, 88-89, Bell’s Depo. 62-64, Oct.

2002 PYP Form.) Bell eventually completed many of her performance goals, but more than half of

the deadlines had been extended. (BOA’s App. 0029, 0088-89, 98, Bell’s Depo. 66, Oct. PYP

 

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 “Red” meant that an employee was in danger of not achieving the goal, and “yellow”

meant that the employee was at moderate risk of not achieving the goal. (BOA’s App. 28, Bell’s

Depo. 65.)

10

form). During 2002, Bell had received “red” and “yellow” ratings on her progress in meeting the

goals.7 Bell admits that by October 2002, the deadlines for four of the seven performance goals that

she had completed had been extended. (BOA’s App. 29, Bell’s Depo. 66.) Bell herself notes her

unsatisfactory performance and, inexplicably, wonders why BOA failed to terminate her for her

unsatisfactory performance. (Bell’s Br. 6.)

BOA articulated a legitimate, non-discriminatory reason for its decision to deny Bell a merit

pay increase. Accordingly, Bell must now produce evidence that either (1) raises a fact issue

regarding the veracity of BOA’s reason, or (2) raises a fact issue which demonstrates that, regardless

of BOA’s stated reason, race was still a motivating factor in BOA’s decision. Rachid, 376 F.3d at

312.

Bell believed that West was a biased supervisor who lacked experience. (Bell’s Br. 7.) She

asserted that she was better at her job than West had been when he held the same position, and that

West thus felt threatened by her. (Id.) Bell also thought that West was biased against her because

of her race, although he never made any comments to her about her race and never told her that her

low performance scores were based upon her race. (BOA’s App. 33, Bell’s Depo. 75.) 

Bell contends that West once made a remark that led her to believe that he was biased against

her because of her race. (Id.) The remark involved the Senior Vice President Bidel’s having

received a trip to Disney World in Florida. (Id.) Bell states that West made the assumption that Bell

and her family could not afford to go to Disney World. (Id.) Bell admits that the remark was

facially neutral. (BOA’s App. 34, Bell’s Depo. 76.) Nevertheless, Bell interpreted his comment as

 

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referring to her race. (Id.) Bell admits that she never complained to West’s supervisor or anyone

else about West’s alleged racial discrimination. (BOA’s App. 35, 48, Bell’s Depo. 77, 93.) 

“Stray remarks with no connection to an employment decision cannot create a fact issue

regarding discriminatory intent and are insufficient to defeat summary judgment.” Scales v. Slater,

181 F.3d 703, 712 (5th Cir. 1999). Here, there is no evidence of when and under what

circumstances the remark was made. The alleged remark by West has no demonstrable connection

to Bell’s performance evaluation, and as such does not create a genuine issue of fact.

Bell claims that between March 25, 2002, and August 16, 2002, West changed the “Metrics

Field” on the “Planning Your Performance” (“PYP”) Form in connection with Bell’s performance

reviews. (Bell’s Br. 7-8.) The “Metrics Field” is the column of the form that gives specific

information about each of the performance goals. Bell does not contend that West changed any of

her deadlines or actual completion data. Rather, Bell felt as if her completion of the performance

goals in October 2002 should have shielded her from West’s consideration of her poor performance

earlier in the year in determining whether she received a raise for her 2002 performance. (BOA’s

App. 20, Bell’s Depo. 51.) Bell’s subjective belief is not competent summary judgment evidence.

Bell has not shown that West changed the “Metrics Field” only for her and not for Caucasian

employees, and she has failed to show that his making the descriptions of the goals more specific

made her performance rating lower. Although she alleges that “keeping her in an unsatisfactory

rating” would keep her from seeking employment within the bank, the undisputed facts show that

BOA waived this requirement and considered her to be eligible for rehire within BOA. (BOA’s

App. 0021, Bell’s Depo. 55.) 

Bell also contends that West treated her less favorably than Barnhart (1) by providing

 

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Barnhart data input assistance two weeks before providing assistance to Bell, (2) by telling Bell to

obtain a phone number and instructions from Barnhart rather than giving them to her directly, and

(3) by giving Barnhart more reward points than he gave Bell. Additionally, she alleges that Barnhart

missed a deadline for sending out client letters when Bell met the deadline. Plaintiff has presented

no competent summary judgment evidence in support of these allegations, but assuming that she had

done so, they would not raises a fact issue regarding the veracity of BOA’s reason for not giving her

a merit pay increase for 2003, nor would they raise a fact issue that, regardless of BOA’s stated

reason, race was still a motivating factor in its decision.

Taking the facts most favorably to Bell, and assuming that Bell made a prima facie case of

discrimination, BOA has shown a legitimate non-discriminatory reason for failing to give Bell a

merit pay increase based upon her 2002 performance, i.e., her failure to meet her performance goals

in a timely manner. Bell has failed to rebut the legitimate non-discriminatory reason. Accordingly,

BOA should be granted summary judgment on Bell’s claim that BOA racially discriminated against

her by failing to give her a merit pay increase based upon her 2002 performance.

2. Bell’s Other Claims of Discrimination 

Bell claims that BOA discriminated against her because of her race by (1) providing Barnhart

data input assistance two weeks before providing Bell assistance, (2) asking Bell to get a cashier’s

check by February 5, 2003, and giving her short notice of a closing, (3) asking her to obtain a phone

number and instructions from Barnhart rather than giving them to her directly, and (4) placing a

written warning in her personnel file on March 7, 2003. Additionally, Bell alleges that BOA

discriminated against her on the basis of her race by (1) failing to give her the passwords for a

website around March 31, 2003, (2) placing a customer complaint in her personnel file, (3) failing

 

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 Management could delegate “reward points” to employees for contributions that they

made to the company. (BOA’s App. 72, Bell’s Depo. 124.) The employees could use the reward

points to buy necklaces, backpacks, and other items. (BOA’s App. 74, Bell’s Depo. 126.) Bell

admitted that she and Barnhart got reward points for different contributions, and that she did not

know of any instance where they did identical work and received a disparate amount of points. 

(Id.) 

13

to inform her about a change in the “hierarchy,” and (4) failing to give her as many “reward points”8

as she deserved, while giving Barnhart more reward points than Bell thought Barnhart deserved.

She also complains that Barnhart missed a deadline for sending out client letters when Bell met the

deadline. 

Title VII addresses only employers’ ultimate employment decisions, not every decision that

might have some tangential effect upon the employee. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.

1995). “Ultimate employment decisions” include such acts as hiring, granting leave, discharging,

promoting, and compensating an employee. Dollis, 77 F.3d at 782. Bell’s other claims of

discrimination do not address ultimate employment decisions. Accordingly, the District Court

should grant BOA summary judgment with respect to Bell’s other claims.

B. Bell’s Allegations of BOA’s Retaliation

Bell contends that BOA’s termination of her employment on November 3, 2003, was in

retaliation for her having filed an EEOC Charge in March of 2003. An employee has engaged in

protected activity when he has “opposed any practice made an unlawful practice under [Title VII],”

or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation,

a plaintiff must show: (1) she engaged in an activity protected by Title VII; (2) she suffered an

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

 

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9

 The Court is not convinced that Bell has made out a prima facie case. Both Bell’s

position as investment administrator and that of the Caucasian investment administrator were

eliminated. Her Caucasian counterpart, Barnhart, had not engaged in protected activity. Thus

Bell has not shown a causal connection between the elimination of the position in Dallas and her

filing of the EEOC Charge. However, out of an abundance of caution, the Court will address

Bell’s arguments on pretext and motivating factor.

14

the adverse action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). A plaintiff need

not prove that the protected activity engaged in was the sole factor for the adverse employment

action in order to establish a causal connection between the two. Id. at 305.

 The McDonnell Douglas framework applies to retaliation claims as well as to discrimination

claims, so that once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the

defendant to offer legitimate, non-discriminatory reasons for the adverse employment action.

Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); Long, 88 F.3d at 304. To

survive summary judgment under the modified McDonnell Douglas test once the employer has

shown a legitimate non-retaliatory reason for its action, a plaintiff must then produce evidence

raising a fact question that (1) the employer’s reason is not true, but is instead a pretext for

retaliation, or (2) the employer’s reason, while true, is only one of the reasons for its conduct and

that retaliation was a motivating factor. Id. 

For purposes of this summary judgment analysis, the Court will assume the existence of a

prima facie case.9

 The burden of producing evidence then shifts to BOA to show a legitimate nonretaliatory reason for Bell’s termination. Bell and Barnhart were terminated as a result of BOA’s

elimination of the investment administrator positions in Dallas. (BOA’s App 98, West Aff. ¶ 4.)

This was part of a reorganization in which the CDFI Department became part of BOA’s Charitable

investments Group and Foundation Team. (BOA’s App 97, West Aff. ¶ 3.) After BOA terminated

 

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Bell and Barnhart, no one was hired for the positions in Dallas that they once held. (BOA’s App

98, West Aff. ¶ 6.) An employer's decision to eliminate a job position has been repeatedly

recognized as a legitimate, non-discriminatory reason for terminating an employee. E.E.O.C. v. Tex.

Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996); Armendariz v. Pinkerton Tobacco Co., 58

F.3d 144, 150 (5th Cir. 1995). BOA has shown a legitimate non-retaliatory reason for terminating

Bell.

Bell must now produce evidence that either (1) raises a fact issue regarding the veracity of

BOA’s reason, or (2) raises a fact issue that, regardless of BOA’s stated reason, retaliation was still

a motivating factor in BOA’s decision. Rachid, 376 F.3d at 312. Bell does not dispute that the

investment administrator positions that she and Barnhart once held no longer exists in Dallas and

have not been refilled. (BOA’s App. 7, Bell’s Depo. 16.) Bell states that her position was not

eliminated until thirty days after the actual date that the CDFI Department was moved. (Bell’s Br.

at 4.) However, she offers no competent summary judgment evidence in support of this contention.

Even if this is true, it does not raise a genuine issue of material fact. Bell readily admits that her

position was eliminated during a reorganization. (BOA’s App. 7, 15-17, Bell’s Depo. 16, 43-45.)

A reorganization does not occur overnight, and it is immaterial whether BOA eliminated her position

first or moved the CDFI Department first.

 Bell next questions BOA’s business reasons for the reorganization. (Bell’s Br. 4.) Courts

may not second guess business decisions. See Walton v. Bisco Indus. Inc., 119 F.3d 368, 372 (5th

Cir. 1997.) Whether an employer's decision was “the correct one, or the fair one, or the best one”

is not a question for the jury. Sauer v. ICI Paints in N. Am., 44 F. Supp. 2d 827, 829 (W.D. Tex.

1999); see also Brown v. CSC Logic, Inc., 82 F.3d 651, 657 (5th Cir. 1996) (finding evidence that

 

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"merely question [ed]" the prudence of the employer's methods to be insufficient). Accordingly,

Bell’s argument regarding BOA’s business reasons does not raise a material fact issue.

Bell also attempts to prove that BOA’s senior investment administrator positions in Florida

are not actually at a higher level than the investment administrator position that she and Barnhart

held in Dallas. (Bell’s Br. 5.) Even if Bell had presented competent summary judgment evidence

of this proposition, which she did not do, the level of the position in Florida is immaterial. Whatever

the level of the positions, they were moved to Florida where the supervisor of the positions had been

stationed while the positions were in Dallas. Bell did not dispute that the positions no longer existed

in Dallas. This argument also fails. 

Bell contends that if BOA had followed its own guidelines, it would have terminated her for

poor performance. (Bell’s Br. 6.) The Court does not understand Bell’s reasoning. Termination

for performance issues is also a legitimate business reason for termination. See, e.g., Sandstad v.

CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (finding legitimate, non-discriminatory

reason based on performance issues). Bell seems to be arguing that her unsatisfactory ratings were

unjust, claiming that she controlled over two thirds of the CDFI Portfolio and that she managed fiftytwo relationships compared to Barnhart’s forty-one relationships. (Bell’s Br. 6.) She also points

out that she received a leadership award from Ken Lewis, CEO and President of BOA. Bell’s

performance is not a material issue with respect to her termination. It remains undisputed that both

Bell and Barnhart were terminated and their investment administrator positions eliminated in Dallas

as a result of BOA’s restructuring. Bell has not raised a fact issue with respect to pretext or

retaliation as a motivating factor regarding BOA’s decision to eliminate Bell’s and Barnhart’s

positions in Dallas as investment administrators.

 

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V. CONCLUSION

The evidence as a whole, taken most favorably to Bell, would not allow a jury to infer that

an actual reason for BOA’s failure to give Bell a merit pay increase for the year 2003 was racial

discrimination. Further, under the same standard, the evidence would not allow a jury to infer that

a reason for Bell’s termination was retaliation for her EEOC Charge. 

VI. RECOMMENDATION

This Court recommends that the District Court Grant Summary Judgment in favor of BOA

on Bell’s Title VII claims for racial discrimination and retaliation.

IT IS SO RECOMMENDED, June 14, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions, and recommendation must file and serve written objections within

ten (10) days after being served with a copy. A party filing objections must specifically identify

those findings, conclusions, or recommendation to which objections are being made. The District

Court need not consider frivolous, conclusory, or general objections. A party’s failure to file such

written objections to these proposed findings, conclusions, and recommendation shall bar that party

from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985).

Additionally, any failure to file written objections to the proposed findings, conclusions, and

recommendation within ten (10) days after being served with a copy shall bar the aggrieved party

from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted

by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass’n,

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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