IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LOUIS AKOP, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2058-D

VS. §

 §

GOODY GOODY LIQUOR, INC., §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this lawsuit by a terminated employee alleging

discrimination based on age and religion and retaliation for filing

complaints of discrimination, defendant moves for summary judgment.

For the reasons that follow, the court grants the motion and

dismisses the case.

I

Plaintiff Louis Akop (“Akop”) sues his former employer,

defendant Goody Goody Liquor, Inc. (“GGLI”), alleging that it

discharged him because of his age, in violation of the Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§

621-634, and the Texas Commission on Human Rights Act (“TCHRA”),

Tex. Labor Code Ann. §§ 21.001-21.556 (Vernon 1996 & Supp. 2005);

that it discharged him based on his religion, in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§

2000e et seq.; and that it terminated him in retaliation for

complaining about discrimination, in violation of Title VII and the

 

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1As the court explains infra at § IV(C), Akop’s claims are

based on his termination; he does not rely on other grounds to

allege that GGLI discriminated or retaliated against him.

2

The court recounts the evidence in a light favorable to Akop

as the summary judgment nonmovant and draws all reasonable

inferences in his favor. See, e.g., Clift v. Clift, 210 F.3d 268,

270 (5th Cir. 2000).

3Roger Hanna (“Hanna”) supervised Akop from February 1999

until early 2000. Akop does not complain about his treatment by

Hanna.

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ADEA.1

In 1999 GGLI hired Akop, then age 63, as a wholesale

salesperson to sell liquor, wine, and bar supplies to restaurants.2

GGLI compensated him based solely on commissions. In or about

April 2000 Akop disclosed to his supervisor, Scott Noebel

(“Noebel”), that he is Jewish. Noebel supervised Akop from 2000

until early 2003. Ken Bill (“Bill”) supervised Akop from then

until his termination in November 2003.3

In early March 2003 Akop complained that GGLI had not notified

him of changes in the cutoff time for Saturday deliveries

(presumably to his various wholesale accounts). Noebel responded

that Akop must have Alzheimer’s disease. Akop contends that Noebel

once called him a “kike,” and that Noebel stated sometime during

2001 or 2002 that he did not believe the Holocaust had ever

happened.

In June 2003 Bill implemented a new sales structure whereby

all salespersons were compensated according to a guaranteed salary

 

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of approximately $40,000 per year plus commissions for sales earned

above that amount. As part of the new structure, some

salespersons, including Akop, were required to attend pre-call

planning meetings and prepare worksheets for management that set

out what the salesperson had done the prior day and planned to do

that or the following day. They were also required to create a

written competitive price analysis that compared the price of

GGLI’s products to its competitors’ and to present this analysis to

customers. The new structure also reorganized the sales

territories among the salespersons.

In July 2003 GGLI gave Akop the first of three disciplinary

warnings related to his job performance. The warning recited,

inter alia, that he had failed to follow the new sales structure.

The following month Akop complained that Bill had stated, in

reference to Akop, that he did not want employees working at GGLI

who were “semi-retired.” In September 2003 GGLI gave Akop his

second disciplinary warning for arriving late to a pre-call

planning meeting. GGLI also warned Akop that “[a]ny sales person

who does not make [pre-call planning] part of his or her daily

routine will not work for [GGLI].” Later that month Akop filed a

charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”), alleging discriminatory treatment based on his

age and religion, and retaliation. Akop had previously complained

to the EEOC in February 2003 that GGLI had discriminated against

 

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him in October 2002 by taking away some of his accounts.

In October 2003 Akop requested of Noebel that he be allowed to

take off work on Yom Kippur. He was informed that he could take

the day off, provided he used a paid vacation day. GGLI granted

all employees three paid holidays per year: Thanksgiving,

Christmas, and New Year’s Day, which, according to GGLI, coincides

with the days that liquor stores are prohibited under Texas law

from opening. Akop alleges that Noebel then asked Akop if he

really went to temple.

On October 9, 2003 Akop’s car was vandalized while parked near

GGLI. Written on the vehicle were the words “Die Jew Die,” and

someone had painted swastikas on the automobile. No one was

charged in the incident nor were any viable leads developed in the

case.

Also in October 2003 GGLI gave Akop his third disciplinary

warning for, inter alia, continuing to disregard the pre-call

planning requirements and based on hygiene-related issues.

Previously that month, Bill had allegedly received a call from the

manager of Luna De Noche restaurant, a GGLI client, requesting that

Akop be removed from its account because of his offensive body

odor. There is also evidence in the record that the Luna De Noche

account had been eliminated from Akop’s territory as of July 2003

(i.e., before the call).

GGLI terminated Akop on November 6, 2003, citing no

 

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improvement in his pre-call planning, his written presentations to

customers, and his hygiene. On December 2, 2003 Akop filed a

charge of discrimination with the EEOC, alleging that GGLI had

discharged him because of his September 2003 EEOC charge. He later

filed this lawsuit. GGLI now moves for summary judgment.

II

GGLI moves for summary judgment as to Akop’s claim under the

ADEA and TCHRA for age discrimination and claim under Title VII for

discrimination based on religion. The ADEA makes it unlawful for

an employer “to discharge any individual or otherwise discriminate

against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). The TCHRA provides that

an “unlawful employment practice is established when the

complainant demonstrates that . . . age . . . was a motivating

factor for an employment practice.” Tex. Lab. Code Ann. §

21.125(a) (Vernon 1996 & Supp. 2005). Texas state courts construe

the TCHRA consistently with federal law interpreting the ADEA.

See, e.g., Badilla v. Bombardier Aerospace Corp., 2003 WL 23017671,

at *2 (N.D. Tex. Dec. 18, 2003) (Fitzwater, J.). Title VII makes

it unlawful for an employer to discriminate against an employee on

the basis of his religion. See 42 U.S.C. § 2000e-2(a)(1). 

To prove his discrimination claims against GGLI, Akop may rely

on direct or circumstantial evidence. See, e.g., Machinchick v. PB

 

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Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (addressing age

discrimination) (“We have traditionally bifurcated ADEA cases into

distinct groups: those in which the plaintiff relies upon direct

evidence to establish his case of age discrimination, and those in

which the plaintiff relies upon purely circumstantial evidence.”).

“Direct evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption.” Sandstad

v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). Such

evidence of discrimination, however, is rare. See, e.g.,

Rutherford v. Harris County, Tex., 197 F.3d 173, 180 n.4 (5th Cir.

1999) (Fitzwater, J.) (stating that because direct evidence is rare

in discrimination case, plaintiff must ordinarily use

circumstantial evidence to satisfy her burden of persuasion). If

direct evidence is unavailable, the plaintiff may create an

inference of discrimination by using the burden-shifting framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

McDonnell Douglas applies to ADEA and Title VII discrimination

claims when they are based on circumstantial evidence. See, e.g.,

West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir.

2003) (Fitzwater, J.) (age discrimination under ADEA ); Evans v.

City of Houston, 246 F.3d 344, 348 (5th Cir. 2001) (Title VII

claim). McDonnell Douglas likewise applies to TCHRA claims for age

discrimination. See Badilla, 2003 WL 23017671, at *2-*3 (holding,

inter alia, that Texas state courts construe the TCHRA consistently

 

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with federal law interpreting the ADEA and applying McDonnell

Douglas burden shifting paradigm).

III

The court considers first whether Akop has proffered direct

evidence of age or religion discrimination, i.e., evidence that, if

believed, proves the fact of discriminatory animus without

inference or presumption. “Such evidence typically involves

statements made by the employer or certain of its personnel that

indicate that an employment decision was based on a forbidden

factor.” Bowe v. Exide Corp., 2001 WL 705881, at *3 n.1 (N.D. Tex.

2001) (Fitzwater, J.). 

Akop does not clearly assert that the summary judgment record

contains direct evidence either of age or religion discrimination.

Rather, Akop divides his brief into three sections by claim, i.e.,

age discrimination, religion discrimination, and retaliation.

Within each section, Akop relies on bullet-point lists of “disputed

facts” that appear to relate generally to the theme of the claim.

With respect to his two discrimination claims, he merely lists

several age-related and religion-related remarks that his

supervisors made. GGLI construes these “disputed facts” as Akop’s

assertion that he possesses direct evidence of discrimination.

Although Akop does not make this contention, the court will

nevertheless review the remarks to determine whether they

constitute direct evidence.

 

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4

Akop’s practice of citing broadly to tabs rather than to

specific appendix pages permeates his brief. Throughout his

response, Akop cites the summary judgment evidence by referring to

the tabs that mostly contain multiple pages. At one point, Akop

points to his entire 137-page appendix for evidence that he

contends precludes summary judgment. See P. Br. 3 (“Material

disputed facts appear in the deposition, affidavits and documents

included in Plaintiff’s Appendix, which are incorporated herein by

reference.”). These citations are inadequate under Rule 56.5(c)

because they do not refer the court to a specific page of Akop’s

appendix. “This inadequacy dramatically increases the burden on

the court to locate the evidence on which [Akop] relies in opposing

summary judgment, especially when [ ]he cites the court to exhibits

that consist of several pages of testimony.” Hagen v.

Beauticontrol Cosmetics, Inc., 1999 WL 451228, at *4 n.2 (N.D. Tex.

June 28, 1999) (Fitzwater, J.). Despite Akop’s failure to comply

with Rule 56.5(c), the court has attempted to locate the specific

pages of the appendix that contain the evidence on which he relies.

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The evidence of discrimination related to Akop’s age is

Noebel’s comment that Akop “must have Alzheimer’s disease” and that

Bill did not want semi-retired personnel working at GGLI.

Concerning Akop’s Jewish religion, his proof is Noebel’s alleged

derogatory reference to him as a “kike” and Noebel’s alleged

opinion that the Holocaust never happened. As a threshold matter,

the court notes that Akop has violated N.D. Tex. Civ. R. 56.5(c) by

failing to cite the pages of the appendix on which he relies for

these factual allegations. See Rule 56.5(c) (“A party whose . . .

response is accompanied by an appendix must include in its brief

citations to each page of the appendix that supports each assertion

that the party makes concerning the summary judgment evidence.”).

Rather, he points to numbered tabs, most of which consist of

numerous pages.4 Even considering this improperly cited proof,

 

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5Furthermore, Akop failed to mention Noebel’s use of the

remark in response to the question posed at his deposition: was

“there any other statement [Noebel] made to you that was derogatory

regarding your Jewish religion?” See P. App. Ex. 1 at 19.

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however, the remarks do not constitute direct evidence of

discrimination. 

The first comment——that Akop must have Alzheimer’s disease——

occurred eight months before his termination and was not proximate

in time to the employment decision at issue. The second——that Bill

did not want semi-retired personnel working at GGLI——requires that

an inference of discriminatory animus be drawn from the reference

to “semi-retired personnel.” The third, in which Noebel allegedly

called Akop a “kike,” is undoubtedly highly offensive. But absent

evidence of when the comment was made or that it was somehow

related to GGLI’s decision to discharge Akop, it can only be

characterized as a stray remark.5 The fourth is not direct

evidence of discrimination because it would require that the trier

of fact infer that Noebel’s alleged belief that the Holocaust never

occurred is probative of a discriminatory animus against persons of

the Jewish faith. Such an inference may in fact be reasonable.

But “[e]ven if such an inference were reasonable, it is nonetheless

a necessary one if the statement is to be accepted as evidence of

discriminatory intent.” Read v. BT Alex. Brown Inc., 72 Fed. Appx.

112, 119 (5th Cir. 2003) (unpublished opinion). The court thus

concludes that Akop has not introduced direct evidence of

 

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6

In Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.

2004), the Fifth Circuit modified the McDonnell Douglas burdenshifting paradigm. See Martin v. El Nell Inc., 2005 WL 2148651, at

*2 (N.D. Tex. Sept. 7, 2005) (Fitzwater, J.).

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discrimination based on age or religion.

Akop also lists as a “disputed fact” that, soon after he filed

his EEOC charge, his car was defaced with swastikas and the words

“Die Jew Die” while the vehicle was parked in the GGLI lot. This

does not constitute direct evidence of discrimination because Akop

has failed to produce proof that GGLI or any of its employees was

responsible for this disgusting conduct. Moreover, GGLI has

submitted the police report as evidence, and it indicates there

were no viable leads in the case. Because of the lack of proof

linking this conduct to GGLI, it cannot constitute direct evidence

of discrimination based on Akop’s religion.

IV

Because Akop has not introduced direct evidence of

discrimination based on age or religion, the court will apply the

modified McDonnell Douglas framework6 to his claims that GGLI

discriminated against him.

A

As did the plaintiff in Martin v. El Nell Inc., 2005 WL

2148651 (N.D. Tex. Sept. 7, 2005) (Fitzwater, J.), Akop maintains

that all or part of McDonnell Douglas has been replaced by Desert

Palace, Inc. v. Costa, 539 U.S. 90 (2003), and that it is now “more

 

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7The three attorneys listed as counsel for Akop on his summary

judgment response brief were also listed as counsel for the

plaintiff in Martin. The brief Akop has filed conducts an analysis

of the current state of federal civil rights case law in the Fifth

Circuit that consists of approximately 20 paragraphs and that is

nearly identical to the brief filed in Martin. It is troubling

that neither the Martin nor the instant brief cites the apparent

author of this analysis. See Durwood D. Crawford, Proving

Employment Discrimination—A Light From The 5th Circuit, for the

Dallas Bar Association (Oct. 18, 2004)

http://www.thompsoncoe.com/portals/0/ProvingEmploymentDiscriminat

ion.pdf, and available at

http://www.gucl.com/CM/FirmArticles/Durwood.pdf. Moreover, even if

the apparent source of this analysis had been cited in Martin or in

this case, in Keelan the Fifth Circuit rejected the author’s

contentions in that case (which are like those in his article)

concerning the impact of Desert Palace on McDonnell Douglas. See

Keelan, 407 F.3d at 340-41.

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difficult” for defendants to obtain summary judgment. P. Br. 16.

Akop “spends much of [his] brief urging the court to reject the

application of the McDonnell Douglas framework to [his] case,

apparently asking that it apply the mixed-motive framework of Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion),

because it is a much simpler approach.” Martin, 2005 WL 2146851, at

*2 (internal quotation marks omitted). Instead, as in Martin, the

court will follow Rachid v. Jack in the Box, Inc., 376 F.3d 305

(5th Cir. 2004) (age discrimination case). See Martin, 2005 WL

2146851, at *2; see also Keelan v. Majesco Software, Inc., 407 F.3d

332, 340-41 (5th Cir. 2005) (holding that “Desert Palace had no

effect on pretext cases under McDonnell Douglas.”).7

 

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B

The modified McDonnell Douglas framework consists of three

stages. Akop must first establish a prima facie case of age or

religion discrimination. Machinchick, 398 F.3d at 350. If he

does, this “creates a presumption that [GGLI] unlawfully

discriminated against [him].” Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 254 (1981). The burden of production shifts

to GGLI to proffer “a legitimate nondiscriminatory reason for its

employment action.” Machinchick, 398 F.3d at 350. GGLI’s burden

“is one of production, not proof, and involves no credibility

assessments.” Martin, 2005 WL 2148651, at *2. “[A]lthough the

presumption of discrimination drops out of the picture once the

defendant meets its burden of production, the trier of fact may

still consider the evidence establishing the plaintiff’s prima face

case and inferences properly drawn therefrom on the issue of

whether the defendant’s explanation is pretextual[.]” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(citations, internal quotation marks, and ellipsis omitted). If

GGLI meets its production burden, then Akop “may proceed under one

of two alternatives: the pretext alternative or the mixed-motives

alternative.” Martin, 2005 WL 2148651, at *2. Under the pretext

alternative, Akop must “offer sufficient evidence to create a

genuine issue of material fact . . . that [GGLI’s] reason is not

true, but is instead a pretext for discrimination.” Id. (internal

 

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quotation marks and ellipsis omitted). Under the mixed motives

alternative, Akop must “offer sufficient evidence to create a

genuine issue of material fact that [GGLI’s] reason, while true, is

only one of the reasons for its conduct, and another motivating

factor is [Akop’s] protected characteristic.” Id. (internal

quotation marks omitted).

C

As noted supra at § III, Akop fails to articulate his claims

within the McDonnell Douglas burden-shifting framework and instead

lists bullet points that he characterizes as “disputed facts.”

This briefing method has made it difficult for the court to

comprehend the bases on which he opposes summary judgment. For

example, it is unclear what constitutes GGLI’s alleged adverse

employment action or actions. To apply McDonnell Douglas the court

must first ascertain whether Akop complains of disparate impact,

disparate treatment, hostile work environment, and/or

discriminatory discharge.

In his brief, Akop first mentions the term “disparate impact.”

He contends that he “suffered economically” and that he “fell to

the lowest compensated salesperson” when GGLI converted from a pure

commission to a mixed salary/commission compensation plan. Akop

cites Smith v. City of Jackson, ___ U.S. ___, 125 S.Ct. 1536

(2005), for the premise that GGLI’s adoption of a compensation plan

that replaced commissions with fixed salaries and reduced Akop from

 

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being the first or second most highly paid salesperson to the

lowest is actionable under the ADEA for its adverse disparate

impact. In his complaint, however, he does not allege a disparate

impact theory or maintain that GGLI utilized a practice or policy

that had an adverse impact on employees of a particular age. To

establish a prima facie case of disparate impact discrimination,

Akop must demonstrate that GGLI’s facially neutral employment

standards operated more harshly on persons of a particular group

rather than another. See Johnson v. Uncle Ben’s, Inc., 965 F.2d

1363, 1367 (5th Cir. 1992). This initial burden includes “proof of

a specific practice or set of practices resulting in a significant

disparity between” the groups. Id. Akop only alleges in his

complaint and brief that the compensation change adversely affected

his individual earnings relative to all other salespersons. He

fails to explain either in his complaint or in his brief how the

conversion related at all to age. Accordingly, he has not alleged

an age-based disparate impact claim concerning the salary plan.

Akop lists additional “disputed facts” in his brief apart from

his discharge and his disparate impact assertion, but he fails to

explain how the facts support an age or religion discrimination

claim. For instance, he complains generally that Noebel treated

him “in a manner different” and “in a different way” than nonJewish peers and, specifically, that GGLI denied his request to

take off Yom Kippur as a religious holiday. He also cites the

 

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respective stray remarks discussed supra at § III. His assertion

as to different treatment is merely a conclusory statement about

his own subjective belief of discrimination, which is insufficient

to withstand summary judgment. See Lawrence v. Univ. of Tex. Med.

Branch, 163 F.3d 309, 313 (5th Cir. 1999) (per curiam) (“[A]

subjective belief of discrimination, however genuine, [may not] be

the basis of judicial relief.”) (internal quotation marks omitted

and second alteration in original); Ray v. Tandem Computers, Inc.,

63 F.3d 429, 435 (5th Cir. 1995) (“[B]ald assertions of . . .

discrimination are inadequate to permit a finding that proscribed

discrimination motivated [the defendant’s] actions against [the

plaintiff].”). Concerning Noebel’s decision that Akop could not

take off Yom Kippur as a paid holiday, he does not sufficiently

explain whether this “disputed fact” is offered as supporting

evidence that he was discharged because of his religious beliefs or

that this decision of itself constitutes a separate adverse

employment action that supports a discrimination claim. Akop does

not address the elements of a prima facie claim of discrimination

with respect to the holiday denial. He does not hint or suggest

that GGLI denied him a reasonable accommodation for his religious

beliefs, i.e., to take Yom Kippur as a paid holiday rather than as

a paid vacation day. See, e.g., Favero v. Huntsville Indep. Sch.

Dist., 939 F. Supp. 1281, 1286 (S.D. Tex. 1996) (describing

religion discrimination claim in which plaintiff asserted denial of

 

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reasonable accommodation). He does not maintain that the paid

holiday denial resulted in disparate treatment. See, e.g., Barrow

v. Greenville Indep. Sch. Dist., 2002 WL 628665, at *6-*8 (N.D.

Tex. Apr. 18, 2002) (Fitzwater, J.) (describing religion

discrimination claim in which plaintiff asserted disparate

treatment). Even when the court construes his complaint and

briefing liberally, it is apparent that Akop offers evidence of

the denial of the holiday request to support his discriminatory

discharge claim and not as an independent ground for relief. Akop

has therefore failed to state an actionable discrimination claim

based on GGLI’s refusal to allow him to take Yom Kippur as a paid

holiday rather than as a paid vacation day. Finally, Akop does not

allege that the stray remarks in question rose to the level of a

hostile work environment. 

Having evaluated the conclusory and amorphous contentions of

Akop’s complaint and summary judgment brief, the court concludes

that Akop is prosecuting a discriminatory discharge claim based on

his age and religion. This holding conforms with the following

summary assertion in Akop’s brief: “The facts of this case

establish with unusual clarity that [Akop] was discharged by [GGLI]

as a result of age and religious discrimination. . . .” P. Br. 1.

Moreover, in his brief Akop does not challenge GGLI’s similar

assumption that the adverse employment action of which he complains

is his discharge. Accordingly, the court will review the

 

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allegations of his complaint and the “disputed facts” in his brief,

including, inter alia, the stray remarks, the failure to allow him

to take Yom Kippur as a paid holiday, and the conversion from a

commission to a salary compensation scheme, in the context of

claims for discriminatory discharge due to age and religion.

The court will assume arguendo that Akop has established a

prima facie case of discrimination based on his termination.

Because it is difficult to understand Akop’s contentions, making

this assumption will enable it to focus on more pertinent issues

without the necessity of sorting through the litany of the

“disputed facts,” many of which are not related to or organized

under the burden-shifting paradigm of McDonnell Douglas. Moreover,

because Akop’s burden at the prima facie case stage is

significantly less than what he shoulders at the third step, it is

likely that the court would reach the second and third steps

anyway. See, e.g., Khanna v. Park Place Motorcars of Houston,

Ltd., 2000 WL 1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater,

J.) (characterizing prima facie burden as “minimal”). 

D

Having assumed arguendo that Akop has made a prima facie

showing, the court shifts to GGLI the burden of producing evidence

of a legitimate, nondiscriminatory reason for discharging Akop.

GGLI has adduced proof that it terminated Akop because there was no

improvement in his pre-call planning process, no improvement in his

 

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written presentation to customers, and a continuing hygiene

problem. GGLI relies on evidence that it gave Akop three

disciplinary warnings that pointed out problems with his attendance

at pre-call planning meetings and performance concerning pre-call

planning. It also cites evidence of several errors in price and

misspellings in one of Akop’s competitive price analyses that he

intended to present to customers. GGLI also cites business records

that recount the events of an October 15, 2003 meeting regarding

Akop, which cite five complaints from customers and fellow

employees regarding Akop’s odor, and a telephone call from the

management at Luna De Noche requesting that Akop be taken off the

account due to his poor hygiene. GGLI has satisfied its burden of

production by proffering evidence that it terminated Akop’s

employment because of factors that are legitimate for an employer

to rely on in discharging an employee and that are unrelated to his

age or religion. 

E

Because GGLI has met its burden of production, Akop is

obligated to introduce summary judgment evidence that would permit

a reasonable trier of fact to find that GGLI’s proffered reasons

for terminating him are pretextual or that a discriminatory reason

was also a motivating factor. See Rachid, 376 F.3d at 312. Akop

can produce evidence that would enable a reasonable trier of fact

to find that GGLI’s “‘proffered explanation is unworthy of

 

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credence.’” Martin, 2005 WL 2148651, at *5 (quoting Burdine, 450

U.S. at 256). He can also introduce evidence that would enable a

reasonable trier of fact to find that a discriminatory reason more

likely motivated GGLI’s decision to terminate him. See id. 

Despite Akop’s failure to comply with Rule 56.5(c), see supra

note 4, and his failure to identify evidence within the McDonnell

Douglas framework, the court will review his lists of “disputed

facts” and proffered evidence relating to pretext or mixed motives.

But see Bookman v. Shubzda, 945 F. Supp. 999, 1004 (N.D. Tex 1996)

(Fitzwater, J.) (“Rule 56 obligates the nonmovant to designate the

specific facts in the record that create genuine issues precluding

summary judgment. It ‘does not impose upon the district court a

duty to survey the entire record in search of evidence to support

a non-movant’s opposition.’”) (quoting Jones v. Sheehan, Young, &

Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)).

1

The court first examines the record for evidence that would

permit a reasonable finding of pretext. Concerning his failure to

improve pre-call planning, Akop submits no evidence that discredits

GGLI’s account of his poor performance and tardiness regarding this

aspect of his employment. With respect to Akop’s poor written

presentation to customers, Akop posits that, because he earned some

of GGLI’s largest commissions, his customers “loved” him. This

evidence, even viewed favorably to Akop as the summary judgment

 

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nonmovant, would not permit a reasonable trier of fact to find that

GGLI’s proffered reason for terminating him——that there was no

improvement in his written presentation to customers——is

pretextual. Akop also identifies several pre-call planning reports

and contends that the ones he prepared are virtually

indistinguishable from those of other salespersons. The reports on

which he relies, however, were the type shown to management, not to

customers. They also are not evidence of pretext concerning the

reason on which GGLI relies. Akop has thus failed to produce

evidence that would permit a reasonable trier of fact to find that

GGLI’s first two proffered reasons for discharging him are

pretextual.

Regarding hygiene, Akop submits affidavits of former customers

that state that he did not have a hygiene problem that “made him

smell bad.” E.g., P. App. 96. He also cites an email in which

Noebel removed him from the Luna de Noche account several months

before someone at Luna de Noche allegedly requested that he be

removed due to his poor hygiene. The court concludes that Akop’s

evidence regarding hygiene, assumed to be true, is sufficient to

raise a genuine fact issue concerning this reason for terminating

him. 

Nevertheless, because Akop has failed to offer evidence that

would permit the reasonable finding that GGLI’s other proffered

nondiscriminatory reasons for his discharge are pretextual, he has

 

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not satisfied his burden at the third step of the burden-shifting

paradigm. Akop is required to “put forward evidence rebutting each

one of a defendant’s nondiscriminatory explanations for the

employment decision at issue. Thus, a plaintiff relying upon

evidence of pretext to create a fact issue on discriminatory intent

falters if he fails to produce evidence rebutting all of a

defendant’s proffered nondiscriminatory reasons.” Machinchick, 398

F.3d at 351 (emphasis added); see also Kwong v. Am. Flood Research,

Inc., 132 Fed. Appx. 18, 21 (5th Cir. May 18, 2005) (per curiam)

(unpublished opinion) (rejecting retaliation claim where plaintiffs

failed to proffer evidence rejecting each of defendant’s

nondiscriminatory reasons). The court therefore holds that Akop

has not demonstrated that a reasonable trier of fact could find in

his favor at the third stage based on pretext.

 2

The court next considers whether Akop has produced proof that

would enable a reasonable trier of fact to find that a

discriminatory reason was the more likely one for GGLI’s decision

to terminate his employment. “In a mixed-motive case involving an

employment decision based on a ‘mixture of legitimate and

illegitimate motives,’ the plaintiff need only prove that the

illegitimate motive was a motivating factor in the decision.”

Machinchick, 398 F.3d at 355 (quoting Rachid, 376 F.3d at 310).

Akop’s subjective beliefs of discrimination, however, are

 

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8Although the court has held that the four comments cited are

insufficient direct evidence of discrimination, see supra at § III,

“the court still weighs these comments in making its determination

regarding the sufficiency of the evidence relating to pretext.”

Read v. BT Alex. Brown Inc., 2002 WL 22060, at *9 n.6 (N.D. Tex.

Jan. 7, 2002) (Fitzwater, J.), aff’d, 72 Fed. Appx. 112, 119 (5th

Cir. 2003) (unpublished opinion). 

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insufficient evidence of a discriminatory motive. See Martin, 2005

WL 2148651, at *5. 

In the face of evidence that Akop’s performance had for

several years fallen below that of other salespersons, the trier of

fact would be required to find that Akop’s performance was not the

sole reason GGLI terminated his employment. The evidentiary

support for this inference would stem only from four isolated

comments made during an employment tenure that exceeded four years,

an allegedly discriminatory salary scheme that is unaccompanied by

evidence that it impacted Akop differently or adversely due to his

age or religion, and testimony and documents that fail to permit a

reasonable finding of inconsistency in GGLI’s articulated reasons

for terminating Akop. See Machinchick, 398 F.3d at 355

(considering plaintiff’s evidence as a whole to determine whether

discrimination was motivating factor in adverse employment

decision).8

 

In the summary judgment context, for comments in the workplace

to provide sufficient evidence of discrimination, they must have

been related to Akop’s age or religion, proximate in time to his

termination, made by an individual with authority over his

 

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termination, and related to his termination. See Read v. BT Alex.

Brown Inc., 2002 WL 22060, at *4 (N.D. Tex. Jan. 7, 2002)

(Fitzwater, J.), aff’d, 72 Fed. Appx. 112, 119 (5th Cir. 2003)

(unpublished opinion). Mere stray remarks do not evidence an

employer’s discriminatory intent. See EEOC v. Tex. Instruments

Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). 

As discussed supra at § III, two of the remarks on which Akop

relies were not temporally related to his discharge. Cf.

Richardson v. Monitronics Int’l, Inc., ___ F.3d ___, 2005 WL

3485872, at *5 (5th Cir. Dec. 21, 2005) (concluding in part that

plaintiff submitted sufficient evidence that discrimination was

motivating factor in termination where hostile remarks were coupled

with temporal proximity to termination). The two remaining

remarks——that Bill did not want “semi-retired personnel” at GGLI

and that Noebel called Akop a “kike”——are insufficient evidence,

without more, that GGLI possessed an age- or religion-based animus

in terminating him. Cf. Auguster v. Vermilion Parish Sch. Bd., 249

F.3d 400, 404 n.7 (5th Cir. 2001) (stray remarks insufficient

circumstantial evidence of age discrimination where no other

evidence of pretext). Moreover, Akop has failed to adduce evidence

concerning when Noebel used the slur, much less any circumstances

surrounding the remark, other than his affidavit testimony that

Noebel said it. He has also failed to provide the court with the

context of Bill’s semi-retired comment, e.g, whether it was said to

 

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Akop individually, or to a group of employees (of varying ages), or

after an employee arrived late. In reviewing the summary judgment

record as a whole, the court concludes that it would only

reasonably permit the finding that the remarks were isolated

incidents. They were made by different speakers, related to

separate protected characteristics, and occurred sporadically over

the four-year course of Akop’s employment. And, in the face of

evidence of GGLI’s legitimate, nondiscriminatory performancerelated reasons for terminating Akop, the four remarks, taken

individually or collectively, are insufficient for a reasonable

trier of fact to find that age or religion was an impermissible

factor in the decision to terminate Akop. See Desert Palace, 539

U.S. at 101. 

Furthermore, Akop has proffered no evidence that the salary

scheme was age-related, either in its implementation or in its

impact, as discussed supra at § IV(C). As such, it is not evidence

that age was a motivating factor in Akop’s termination, or even

that age was a factor at all. Finally, the remaining testimony and

documents, including, inter alia, evidence related to hygiene, is

offered to rebut GGLI’s proffered reasons for Akop’s termination,

but it is not additional evidence of a discriminatory motive by

GGLI. See Rachid, 376 F.3d at 312 (mixed motives alternative

assumes truth of employer’s reasons for adverse employment action).

Because Akop has failed to introduce evidence that would

 

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permit a reasonable finding that his age or religion was a

motivating factor in GGLI’s decision to terminate him, he has not

met his burden at the third step. Accordingly, the court grants

GGLI’s motion for summary judgment on Akop’s age discrimination

claims under the ADEA and TCHRA and his religion discrimination

claim under Title VII. 

V

The court now considers whether GGLI is entitled to summary

judgment dismissing Akop’s retaliation claim. 

As with discrimination claims, when the employee offers no

direct evidence that the employer retaliated against him, the

method of proof set out in McDonnell Douglas applies. See Walker

v. Norris Cylinder Co., 2005 WL 2278080, at *9 (N.D. Tex. Sept. 19,

2005) (Fitzwater, J.) (addressing Title VII retaliation context);

see also Patrick v. Ridge, 394 F.3d 311, 315 n.10 (5th Cir. 2004)

(applying McDonnell Douglas burden-shifting analysis to ADEA

retaliation claim). Akop must first establish a prima facie case

of retaliation. To do so, he must demonstrate that (1) he engaged

in a protected activity, (2) an adverse employment action occurred,

and (3) a causal link existed between the protected activity and

the adverse employment action. Walker, 2005 WL 2278080, at *9.

Concerning Akop’s prima facie case, although he fails to label it

as such, he proffers evidence that he filed a charge of

discrimination in mid-September 2003 and was terminated

 

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9Although his brief makes conclusory and amorphous allegations

regarding “a continuous and concerted program of harassment” and

“retaliatory harassment,” see P. Br. 19-20, in his complaint Akop

specifically identifies his discharge as the retaliatory act of

which he complains. See Compl. ¶ 6.02.

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approximately ten weeks later.9 Without attempting to interpret

his brief further, the court will assume arguendo, as with his

discrimination claims, that he has met his prima facie burden. The

burden then shifts to GGLI to articulate a legitimate,

nondiscriminatory reason for the allegedly retaliatory action

taken. GGLI’s burden is one of production, not of proof. If GGLI

meets its production burden, “any presumption of retaliation drops

from the case.” Baker v. Am. Airlines, Inc., 430 F.3d 750, 755

(5th Cir. 2005) (internal quotation marks omitted). 

The final evidentiary burden shifts to Akop to demonstrate

that “the conduct protected by Title VII [or the ADEA] was a but

for cause of the adverse employment decision.” Walker, 2005 WL

2278080, at *9 (internal quotations marks omitted). Akop may

satisfy this burden by adducing evidence that would permit a

reasonable trier of fact to find that the “stated reason is

actually a pretext for retaliation.” Baker, 430 F.3d at 755

(internal quotation marks omitted). The court understands Akop to

contend that he may alternatively withstand summary judgment at

this stage by establishing that GGLI possessed mixed motives in

 

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10The court is construing Akop’s brief quite liberally in

determining that he has raised this contention. The entirety of

this argument is contained in one sentence. Moreover, the sentence

is equivocal——“See the discussion of the present state of

discrimination law in Section IV of this Brief, which is applicable

to retaliation claims also, although no proof of discrimination is

required for a retaliation claim,” P. Br. 22——and does not directly

contend that the mixed motives analysis applies in the Title VII

retaliation context. 

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terminating him. See supra § IV(B).10 Under the mixed motives

analysis, he need only offer sufficient evidence to create a

genuine issue of fact that GGLI’s reason for terminating him,

although true, was but one of the reasons for its conduct, another

of which was retaliation. See Rachid, 376 F.3d at 312. Although

the Fifth Circuit has declined to address the impact of Desert

Palace and Rachid on Title VII and ADEA retaliation claimants, see,

e.g., Septimus v. University of Houston, 399 F.3d 601, 607 n.7 (5th

Cir. 2005), it has recently held that the modified McDonnell

Douglas framework applies to retaliatory discharge claims under the

Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654. See

Richardson, ___ F.3d ___, 2005 WL 3485872, at *4. And some

district courts in the Fifth Circuit have applied the modified

McDonnell Douglas approach to retaliation claims under Title VII.

See McCarthy v. Primedia Workplace Learning, L.P., 2005 WL 3428191,

at *4 n.2 (N.D. Tex. Dec. 6, 2005) (Lynn, J.) (collecting cases).

The court need not conclusively resolve whether the modified

McDonnell Douglas framework applies in the Title VII and ADEA

retaliation context. Assuming arguendo that it does, the court

 

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also concludes that a reasonable trier of fact could not find

retaliation based on the evidence Akop has adduced to show that

GGLI’s proffered reasons for terminating him were pretextual or

that discrimination was a motivating factor in his discharge. As

discussed supra at § IV(E), Akop has failed to produce adequate

controverting evidence of GGLI’s motives for terminating him.

Moreover, he relies on four points of “disputed facts” as evidence

of retaliation. First, he alleges that GGLI’s “retaliatory

harassment” commenced soon after he filed his February 2003 EEOC

complaint. This constitutes nothing more than Akop’s subjective

belief, which is insufficient evidence to withstand summary

judgment. See Lawrence, 163 F.3d at 313 (“[A] subjective belief of

discrimination, however genuine, [may not] be the basis of judicial

relief.”) (internal quotation marks omitted and second alteration

in original). Second, Akop points to the fact that GGLI converted

to a salary scheme “only a few months” after he filed his February

2003 EEOC complaint. As discussed supra at § IV(C), Akop has not

explained how the salary scheme impacted him differently from other

GGLI employees or that it adversely impacted him. Indeed, the

evidence indicates that his average bi-weekly pay actually

increased between the six-month period before the conversion and

the six-month period after it. The conversion is thus insufficient

evidence that would permit a reasonable finding of retaliation.

Third, Akop posits that the temporal proximity between the swastika

 

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11Because the court dismisses Akop’s claims, it denies as moot

GGLI’s motion to strike Akop’s appendix submitted in response to

GGLI’s motion for summary judgment. 

- 29 -

incident and his EEOC charge evidences GGLI’s retaliatory motive.

Because Akop has adduced no evidence that GGLI or any of its

employees was involved in the deplorable incident, as discussed

supra at § III, it is also insufficient evidence of a retaliatory

motive. Fourth, Akop urges that the brief ten-week period between

the filing of his September 2003 EEOC discrimination charge and his

termination demonstrates a retaliatory motive. Akop is unable,

however, to buttress his reliance on temporal proximity with any

evidence that would permit a reasonable finding of retaliation.

This evidence, considered separately or together with Akop’s other

“disputed facts,” is thus insufficient to support a reasonable

finding of retaliatory animus. See McCarthy, 2005 WL 3428191, at

*4 & n.2 (concluding that temporal proximity between sexual

harassment report and termination was insufficient to demonstrate

pretext in context of Title VII retaliation claim and,

alternatively, that plaintiff could not satisfy modified McDonnell

Douglas burden). Akop has thus failed to meet his burden of

introducing evidence that creates a genuine issue of material fact

regarding the ultimate question whether GGLI unlawfully retaliated

against him. Accordingly, GGLI’s motion for summary judgment on

Akop’s retaliation claim is granted.11

 

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VI 

GGLI also requests the court to award it attorney’s fees under

Title VII. When a suit is brought in good faith, a successful

defendant can be awarded fees “only upon a finding that the

plaintiff’s action was frivolous, unreasonable, or without

foundation.” Tutton v. Garland Indep. Sch. Dist., 733 F. Supp.

1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.) (internal quotation

marks omitted); see Christiansburg Garment Co. v. EEOC, 434 U.S.

412, 418 (1978). GGLI has not alleged——much less attempted to

demonstrate——that Akop’s action was brought in bad faith or that it

is frivolous, unreasonable, or without foundation. GGLI’s request

for attorney’s fees is thus denied.

* * *

For the reasons explained above, the court grants GGLI’s

motion for summary judgment and dismisses this action with

prejudice by judgment filed today.

SO ORDERED.

January 17, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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