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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LAWYER H. DENSON, §

 §

Plaintiff, § 

v. § Civil Action No. 3:04-CV-337-M

 §

MEADWESTVACO CORP., §

 §

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant MeadWestvaco’s (“Mead”) Motion for Summary

Judgment filed on April 27, 2005, the Plaintiff’s Motion to Strike filed on May 27, 2005, and the

Defendant’s Motion to Strike filed on June 14, 2005. Upon consideration of the Motion,

Response, Reply, the evidence submitted by the parties, and the law applicable to the issues

before the Court, the Court GRANTS the Defendant’s Motion for Summary Judgment and

DENIES the Plaintiff’s and Defendant’s Motions to Strike. 

I. Background Facts

Plaintiff Lawyer Denson (“Denson”) worked at Mead’s paper product manufacturing

facility in Garland, Texas. Over his nearly thirty-year tenure with the company, Denson worked

his way up from a utility worker to a High Speed Machinery Supervisor. On March 25, 2003,

Krissi Amezquita (“Amezquita”) made a formal complaint under Mead’s anti-harassment policy

alleging that she had been sexually harassed by Denson, her supervisor. 

 

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Two days later, when Denson returned from vacation, Richard Meyer ("Meyer"),

Denson’s immediate supervisor, and Carmen Goode ("Goode"), the Human Resources Manager

at the Garland facility, informed Denson of Amezquita’s allegation. They informed Denson that

he would be suspended, with pay, pending the completion of an investigation of Amezquita’s

complaint. Denson denied sexually harassing Amezquita and claimed that Amezquita was

retaliating against him because he had disciplined her earlier that week. 

Goode interviewed four of Amezquita’s co-workers. All four corroborated Amezquita’s

allegations. Goode discussed the investigation findings with Mead’s Manager of Human

Resources Services, Charlene Goeglein (“Goeglein”), Plant Manager Owen Fox (“Fox”), and

Meyer. Goode, Goeglein, Fox, and Meyer decided to discharge Denson. Denson was informed

on April 11, 2003, that he was being terminated for violating Mead’s sexual harassment policies. 

On February 17, 2004, Denson filed a Complaint against Mead, alleging race and

age-based discrimination, retaliation, and wrongful discharge pursuant to the Age Discrimination

in Employment Act 29 U.S.C. § 621, et seq. ("ADEA"); the Civil Rights Act of 1964 and 1991 as

amended, 42 U.S.C. § 2000e, et seq. ("Title VII"); 42 U.S.C. § 1981 ("Section 1981"); and Texas

common law (the "Sabine Pilot claim"). Denson claims he was terminated because of his age, 47,

and his race, African-American. He also claims that Mead terminated him in retaliation for his

making a phone call to the company “hotline,” complaining about age and race discrimination,

and because he refused to commit illegal acts. Denson contends the company’s investigation was

a sham, and that the sexual harassment claim was a pretext for the real, discriminatory reasons

for his termination or, in the alternative, that discrimination was at least a motivating factor in

Denson’s termination. 

 

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The Defendant filed a Motion for Summary Judgment on all of the Plaintiff’s claims. 

II. Evidentiary Findings 

As a preliminary matter, the Court has considered the Motions to Strike. These motions

are DENIED. The parties complain that several documents submitted in support of, and in

opposition to, the Motion for Summary Judgment contain hearsay. However, most of the

evidence in question is not presented for the truth of the matter asserted; rather, it is submitted to

show the Defendant’s employees’ state of mind when Denson was terminated. The parties

complain that other evidence submitted is speculative or conclusory. In evaluating Defendant’s

Motion, the Court has disregarded any speculative, conclusory, or hearsay evidence offered for

the truth of the matter asserted. 

III. Summary Judgment Standard

Summary judgment is appropriate when, viewing the evidence and all justifiable

inferences in the light most favorable to the non-moving party, there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Septimus v. Univ. of

Houston, 399 F.3d 601, 609 (5th Cir. 2005) (citing Fed. R. Civ. P. 56(c); Hunt v. Cromartie, 526

U.S. 541, 549 (1999)). "The burden of establishing the nonexistence of a ‘genuine issue’ is on

the party moving for summary judgment." Celotex Corp. v. Cartrett, 477 U.S. 317, 330 (1986). 

Once the moving party has made an initial showing, the burden shifts to the non-movant

to establish that there is a genuine issue of material fact for trial. Id. at 323-24. The non-movant

must present specific facts which demonstrate that there is a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Mere allegations made in the pleadings are not

 

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sufficient to withstand a motion for summary judgment. Id. In other words, conclusory

statements, speculation, and unsubstantiated assertions will not suffice. Id. at 248-50; Abbott v.

Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). 

IV. Race and Age Discrimination

Discrimination claims have traditionally been analyzed under different frameworks,

depending upon whether the plaintiff supports a claim with direct or circumstantial evidence. See

generally Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414-15 (5th Cir. 2003). 

Circumstantial evidence cases alleging pretext were analyzed under the McDonnell Douglas

burden-shifting framework. Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). 

Cases involving direct evidence were analyzed under the Price Waterhouse mixed-motives

approach. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). “Under the pretext

prong of the McDonnell Douglas analysis, the plaintiff aims to prove that discriminatory motive

was the determinative basis for the termination, [and] under the mixed-motives framework, the

plaintiff can recover by demonstrating that the protected characteristic was a motivating factor in

the employment decision.” Id. at 310. However, recent rulings by the Supreme Court and the

Fifth Circuit recognized the merging of the mixed-motive and pretext theories and created a

“modified McDonnell Douglas approach”: 

The plaintiff must still demonstrate a prima facie case of discrimination; the defendant

must articulate a legitimate, non-discriminatory reason for its decision to terminate the

plaintiff; and if the defendant meets its burden of production, the plaintiff must then offer

sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s

reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2)

that the defendant’s reason, while true, is only one of the reasons for its conduct, and

another motivating factor is the plaintiff’s protected characteristic (mixed-motives

alternative). 

 

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Rachid, 376 F.3d at 312; see also Desert Palace v. Costa, 539 U.S. 90 (2003). In any case, "the

ultimate burden of persuading the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all time with the plaintiff." Reeves v. Sanderson Plumbing Prod.,

Inc., 530 U.S. 133, 143 (2000) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981)). 

Denson rightly contends that this case should be analyzed under the modified McDonnell

Douglas approach. Mead will not be entitled to summary judgement if there is an issue of

material fact that the sexual harassment claim was a pretext or if despite the veracity of the

sexual harassment claim, discrimination was still a motivating factor in the decision to discharge

Denson.

a. Prima Facie Case

Denson must first show a prima facie case of discrimination. To do so, Denson must

prove that (1) he is a member of a protected class; (2) he was qualified for the position; (3)

despite his qualifications, he was subjected to an adverse employment action; and (4) after his

termination, the position remained open and was ultimately filled by a person outside the

protected class. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002);

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). African-Americans

and individuals at least forty years of age are members of protected classes. 42 U.S.C. § 1981; 29

U.S.C. § 631(a). 

Denson, an African-American man, was over the age of forty when he was terminated. It

 

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is undisputed that Denson was qualified for his position. It is also undisputed that he was

replaced by Virginia Garcia, a thirty-two year old Hispanic woman. Therefore, Denson has made

out a prima facie case of age and race discrimination. 

b. Pretext Burden

Once the plaintiff establishes a prima facie case, the burden then shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for the employee’s termination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This is a burden of production, not

persuasion, and cannot involve a credibility assessment. Reeves, 530 U.S. at 142. If the

defendant produces a legitimate reason for the employment decision, the burden shifts back to

the plaintiff to show that the defendant’s reason was merely a pretext for discrimination, or that

the plaintiff’s protected characteristic was a motivating factor in the employer’s decision. See

McDonnell Douglas, 411 U.S. at 804; Rachid, 376 F.3d at 312. 

Mead offers a legitimate, nondiscriminatory reasons for its action – it reasonably believed

that Denson violated the company’s sexual harassment policy. Mead arrived at this conclusion

based on the investigation conducted by Goode and Meyer of Amezquita’s complaint. This

explanation satisfies the burden of production and thus, the burden shifts back to Denson to

demonstrate that the reason was a pretext for discrimination or that discrimination was a

motivating factor in Mead’s decision to terminate him. Rachid, 376 F.3d at 312.

Denson contends that the investigation was a sham and that Goode, Meyer, Goeglein, and

Fox used the sexual harassment claim as a pretext for discrimination. In the alternative, Denson

claims that his age and race were at least motivating factors in his termination. Denson offers

 

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five bases for his allegation that the investigation was a sham: (1) Amezquita’s claim was

patently false; (2) Goode had a history of making incomplete investigations; (3) Mead had a

pattern of suspending, not terminating, supervisors accused of sexual harassment; (4) Denson

gave Goode and Meyer the names of four co-workers who would corroborate his story, but they

failed to interview any of the four; and (5) Goode, Meyer, and Fox misconstrued a letter in

Denson’s file to make it appear as if he had been cited for sexual harassment in the past. 

When determining whether a decision to terminate was made in good faith, the relevant

inquiry for the Court is not whether the sexual harassment claim was ultimately false but,

"whether the decision makers believed at the time of discharge that the employee was guilty of

harassment and, if so, whether this belief was the reason for discharge." Waggoner v. Garland,

987 F.2d 1160, 1163 (5th Cir. 1993). An incorrect determination by the defendant is irrelevant,

"as long as its belief, though erroneous, was the basis for the termination." Cortinas v. Health

Cent., No. 3:04-CV-1032-P, 2005 U.S. Dist. LEXIS 11726, at *10 (N.D. Tex. June 14, 2005)

(quoting De Anda v. St. Joseph’s Hosp., 671 F.2d 850, 854 n.6 (5th Cir. 1982)); see also Jones v.

Flagship Int’l, 793 F.2d 714, 729 (5th Cir. 1986).

Further, it is not sufficient for the plaintiff to present evidence that the investigation was

imperfect, incomplete, or that it potentially reached an erroneous conclusion. Pineda v. United

Parcel Serv., 360 F.3d 483, 489 (5th Cir. 2004). A plaintiff must show that the defendant did not

reasonably believe the sexual harassment claim and that discrimination was the real reason for

the termination. See id. By refusing to second-guess the results of an imperfect investigation,

courts encourage employers to investigate complaints against at-will employees before deciding

whether or not to discharge them. See Wal-Mart Store, Inc. v. Canchola, 121 S.W.3d 735, 740

 

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(Tex. 2003). 

Denson provides a significant amount of evidence that Amezquita lied about his sexually

harassing her. However, the issue is not whether Amezquita’s allegations were false. Mead has

potential liability if the decision-makers -- Goode, Meyer, Goeglein, and Fox -- did not

reasonably believe her allegations after their investigation, and still decided to terminate Denson. 

There is no evidence to dispute Defendant’s assertion that its employees reasonably believed

Amezquita’s allegations. Goode interviewed four of Amezquita’s co-workers and all four

corroborated her charges. Goode also became aware of a letter in Denson’s file from July 11,

1990: “A complaint has been issued, once again, about your conduct or suggestions to female

employees . . . If an incident of this nature, or company policy is violated in the future, extreme

disciplinary action will be taken. This action will be in the form of suspension, or termination.”

Although the meaning of this letter is now disputed, Goode avers that she understood it to be

documentation of a previous allegation of sexual harassment. 

The key to determining whether a good faith investigation has taken place is the

determination of what information the company possessed when it made its termination decision

- not the underlying veracity of that information. The investigation conducted by Goode may

have been incomplete, but it is not the position of the court to second-guess an imperfect

investigation. Goode, Meyer, Goeglein, and Fox had a reasonable belief in the veracity of the

sexual harassment allegation. Denson’s accusations to the country amount to mere speculation

and are insufficient to create a genuine issue of material fact. Thus, Denson cannot prevail on a

pretext theory of discrimination.

 

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c. Evidence of Discrimination

Denson may still be able to prevail if he can establish that discrimination was a

motivating factor in the decision to terminate him. To prevail on a mixed-motives theory, the

plaintiff must demonstrate that discrimination was the “motivating factor” in the decision to

terminate. Rachid, 376 F3.d at 312. In other words, the mixed-motives analysis will only apply

“where the evidence is sufficient to allow a trier to find both forbidden and permissible motives.”

Id. (quoting Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999)). 

Denson presents no evidence of race discrimination. He speculates that Meyer was

grooming a young, Caucasian man to take Denson’s position. However, that man did not obtain

Denson’s position after the termination. Further, there is no evidence of any remarks about

Denson’s race by any of the decision-makers. Denson also contends that it is obvious that

discrimination was at least a motivating factor in Mead’s decision to terminate him because

Mead routinely suspended supervisors against whom allegations of sexual harassment were

made, but never fired them. However, no evidence is presented that the supervisors who were

suspended were, as Denson’s claims suggest, not members of a protected class. 

The only evidence that could conceivably establish indicia of discrimination are agerelated statements Meyer made to Denson. Comments in the workplace may serve as sufficient

evidence of discrimination if they are (1) related [to the protected class of persons of which the

plaintiff is a member]; (2) proximate in time to the termination; (3) made by an individual with

authority over the employment decision at issue; and (4) related to the employment decision at

issue. Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999) (quoting Brown v. CSC

Logic Inc., 82 F.3d 651, 655 (5th Cir. 1996)). Comments that are “vague and remote in time” are

 

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insufficient to establish discrimination. Brown, 82 F.3d at 655; see E.E.O.C. v. Tex. Instruments,

Inc., 100 F.3d at 1181 (“In order for an age-based comment to be probative of an employer’s

discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude

without any inferences or presumptions that age was an impermissible factor in the decision to

terminate the employee.”).

Denson offers two allegedly discriminatory statements made by Meyer to Denson. On

several occasions from three to six months before Denson’s termination, Meyer told Denson,

"You’re getting too old," and "I am going to get me a young man.” The Fifth Circuit has held that

similar comments are merely “stray remarks” and are insufficient to establish age discrimination.

Waggoner, 987 F.2d at 1166 (a statement by a decision maker that a “younger person could do

faster work” and referencing the plaintiff as an “old fart” were found to be mere stray remarks). 

Meyer’s comments do not show age discrimination toward Denson. The comments were

made three to six months before the employment decision and are not related to Denson’s

discharge. Taken as a whole, the comments alone would not allow a reasonable jury to conclude

that age was an "impermissible factor" in the decision to terminate him. Thus, Denson has failed

to raise an issue of material fact that discrimination was a motivating factor in the decision to

terminate, or even that it was a factor at all. Therefore, Denson cannot prevail on his

discrimination claims under a mixed-motives analysis. Mead’s Motion is GRANTED as to

Denson’s age and race discrimination claims. 

V. Retaliation

Denson contends that he was discharged from his position at Mead in retaliation for his

 

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reporting age and race discrimination to the company hotline on March 27, 2003. To pursue a

retaliation claim, a plaintiff must first demonstrate a prima facie case of retaliation. Septimus,

399 F.3d at 610. To establish a prima facie case of retaliation, the plaintiff must show (1) that he

engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that a

causal link existed between the protected activity and the adverse action. Gee v. Principi, 289

F.3d 342, 345 (5th Cir. 2002). Once the plaintiff makes a prima facie case “the burden shifts to

the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment action.”

Pineda, 360 F.3d at 487. If the defendant meets this burden, then the plaintiff must show that the

employer’s stated reason is a pretext for the retaliatory purpose. Id. 

The parties dispute whether Denson has established a prima facie case. It is undisputed

that an adverse employment action occurred. However, it is unclear whether Denson engaged in a

protected activity, and if he did, whether a causal link exists between the protected activity and

his termination. Denson states that he made a call, while he was suspended, to the company

“hotline” and complained about age and race discrimination. He further contends that Goode,

Meyer, and Fox were made aware of the substance of these calls and decided to discharge him in

retaliation for his complaints. Although Goode, Meyer, and Fox were given a report of Denson’s

call by Pinkerton Compliance Services, a third-party monitoring company, that report did not

mention age or race discrimination complaints. Nevertheless, for the purposes of this analysis,

the court will assume that Denson engaged in the protected activity of reporting age and/or race

discrimination.

Assuming that Denson complained about age and race discrimination, he still must

establish that the protected activity and the adverse employment action are not “wholly

 

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unrelated.” Long v. Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996). If Goode, Meyer, or Fox

did not know about Denson’s discrimination complaints before the decision to discharge him, a

causal link cannot be established. Denson’s argument that they knew of his complaints, is mere

speculation and does not raise a material fact issue sufficient to withstand summary judgment. 

Therefore, the Defendant’s Motion for Summary Judgment is GRANTED as to Denson’s

retaliation claim. 

VI. Sabine Pilot

In Texas, the employment at-will doctrine recognizes the right of an employer to

terminate at-will, and without cause, the employment of any individual who is employed for an

indefinite term. E. Line & R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888). The Supreme Court of

Texas has carved out one narrow public policy exception to the employment at-will doctrine.

Sabine Pilot v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). The Sabine Pilot exception allows an

employee to bring a wrongful discharge claim against an employer when the sole reason for the

employee’s termination was his refusal to perform an illegal act. Id. In order to establish a prima

facie case of wrongful termination under Sabine Pilot, the plaintiff must prove that (1) he was

required to commit an illegal act which carries criminal penalties; (2) he refused to engage in the

illegal act; (3) he was discharged; and (4) the sole reason for his discharge was his refusal to

commit the illegal act. White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003); Boyce v. Bank

of Am. Tech., No. 3:03-CV-0770-8, 2004 U.S. Dist. LEXIS 22751, at *32 (N.D. Tex. Nov. 10,

2004). 

A key component of the Sabine Pilot exception is that the wrongful discharge claim is the

 

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sole reason for discharge. It has been consistently held that, “an employee who alleges wrongful

discharge for refusing to perform a criminal act cannot advance additional claims.” Pease v.

Pakhoed, 980 F.2d 995, 997 n.1 (5th Cir. 1993); Robertson v. Bell Helicopter Textron, Inc., 32

F.3d 948, 953 (5th Cir. 1994); Hancock v. Express One Intern., Inc., 800 S.W.2d 634, 636 (Tex.

App.--Dallas 1990, writ denied). In addition to his claim of wrongful termination, Denson

advances claims of age discrimination, race discrimination, and retaliation. This mistake in

pleading alone warrants a grant of summary judgment on the Sabine Pilot claim. See e.g.,

Gutherie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir. 1991) (upholding the district court’s

decision to dismiss wrongful discharge claim because plaintiff also pleaded a claim of age

discrimination). 

However, even if Denson had properly pleaded the wrongful discharge claim in the

alternative, the claim still fails. “An employer who discharges an employee both for refusing to

perform an illegal act and for a legitimate reason cannot be liable for wrongful discharge.”

Richards v. Kmart Corp., No. 3:99-CV-2722-P, 2001 U.S. Dist. LEXIS 2991, at *9 (N.D. Tex.

March 19, 2001) (quoting Tex. Dept. of Human Serv. v. Hinds, 904 S.W.2d 629, 622 (Tex.

1995)). Mead’s explanation for Denson’s termination was that he violated Mead’s sexual

harassment policy, and the evidence supports that explanation. Therefore, Denson’s Sabine Pilot

claim must fail as a matter of law. The Defendant’s Motion for Summary Judgment is

GRANTED as to Denson’s wrongful termination claim.

VII. Conclusion

Mead is entitled to summary judgment on all of Denson’s claims -- for age and race-

 

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based discrimination, retaliation and wrongful discharge. Accordingly, the motion for summary

judgment is GRANTED. 

 SO ORDERED.

September 8, 2005.

_________________________________

Barbara M. G. Lynn

UNITED STATES DISTRICT JUDGE

 

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