ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN C. CANNON, §

§

Plaintiff, §

§

v. §

§ Civil Action No. 3:03-CV-2911-N

ST. PAUL FIRE AND MARINE §

INSURANCE COMPANY, §

§

Defendant. §

ORDER

Before the Court is Defendant St. Paul Fire and Marine Insurance Company’s (“St.

Paul”) Motion for Summary Judgment filed on September 21, 2004. The Court grants St.

Paul’s motion. 

I. BACKGROUND

Plaintiff John C. Cannon (“Cannon”) was an employee of St. Paul. St. Paul hired

Cannon as a Regional Marketing Director (“RMD”) in January 2002. Shortly after Cannon

began working for St. Paul, St. Paul terminated his supervisor, the Regional Executive, and

promoted Robin Nicks to the position. St. Paul began receiving complaints both internally

and externally about Cannon’s work and was disappointed with his progress in the RMD

position. Cannon’s supervisors at St. Paul met repeatedly with Cannon to explain St. Paul’s

expectations and even secured a mentor for Cannon. However, Cannon did not progress as

desired. In July 2002, Robin Nicks placed Cannon on a Performance Improvement Plan,

giving Cannon forty-five days to improve his performance. Cannon failed to meet his

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ORDER – PAGE 2

performance goals under the plan and was terminated in September 2002. Cannon filed the

instant suit claiming age and gender discrimination in violation of the Texas Labor Code,

Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act.

St. Paul now moves for summary judgment on all claims. 

II. STATE LAW CLAIMS

St. Paul moves to dismiss all of Cannon’s state law claims for age and gender

discrimination under the Texas Labor Code for failure to exhaust his administrative remedies.

In his Brief in Response to St. Paul’s Motion for Summary Judgment, Cannon concedes that

his state law claims are not properly before the Court and withdraws them. Accordingly, the

Court grants St. Paul’s motion for summary judgment with respect to Cannon’s state law

discrimination claims. 

III. FEDERAL CLAIMS

St. Paul moves to dismiss all of Cannon’s federal discrimination claims under Title

VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment

Act (“ADEA”). 

A. Failure to Promote Claims

The Court first considers whether Cannon failed to exhaust his administrative

remedies. St. Paul contends the Court must grant summary judgment on the failure to

promote Cannon to Regional Executive claims because Cannon did not raise them in the

charge he filed with the Equal Employment Opportunity Commission (“EEOC”). Before

filing suit, a plaintiff must present his claims of discrimination in a charge to the EEOC and

the scope of any subsequent suit is limited to the claims presented to the EEOC. Nat’l Ass’n

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1

“The leniency accorded a layman in drafting the EEOC charge should not be extended to

an attorney.” White v. North Louisiana Legal Assistance Corp., 468 F. Supp. 1347, 1352

(W.D. La. 1979). Thus, the Court need not extend Cannon any leniency in comparing the

EEOC charge to his pleadings because Cannon’s attorney drafted the EEOC charge. 

ORDER – PAGE 3

of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994). Cannon’s

EEOC charge makes no reference to St. Paul’s failure to promote him to Regional Executive;

thus, the Court holds that Cannon did not literally present his failure to promote claims to the

EEOC. 

The Court next considers whether Cannon’s failure to promote claims would have

been discovered by a reasonable investigation of the claims he did present. If the claims at

issue were not literally presented in the EEOC charge, the plaintiff may still file suit on any

similar claim that could reasonably have been expected to grow out of an investigation of the

initial charges of discrimination. Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir.

1993). The summary judgment record shows that Dennis Crosby made the decision not to

promote Cannon to Regional Executive while Cannon’s EEOC charge complains of Robin

Nicks’ conduct in placing Cannon on the Performance Improvement Plan and ultimately

terminating him. Furthermore, Robin Nicks was promoted to Regional Executive instead of

Cannon in March or April of 2002. Cannon’s charge with the EEOC alleged that St. Paul’s

discriminatory conduct began on July 26, 2002, (the date Cannon began the Performance

Improvement Plan) and ended on September 9, 2002, (the date Robin Nicks terminated

Cannon).1

 Here, the failure to promote claim would not reasonably be expected to grow out

of the EEOC’s investigation; thus, the failure to promote claim is outside the scope of

Cannon’s charge filed with the EEOC. 

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ORDER – PAGE 4

St. Paul also argues that, even if Cannon had raised the failure to promote claims, he

failed timely to file such a charge with the EEOC. Before a plaintiff may file suit, he must

present his discrimination claims in a charge to the EEOC within 180 or 300 days of the

allegedly discriminatory practice. 42 U.S.C. § 2000e-5(e)(1) (Title VII claims); 29 U.S.C.

§ 626(d) (ADEA claims). Here, Robin Nicks was promoted to Regional Executive by at least

April 2002. Cannon filed his charge with the EEOC on May 6, 2003, well in excess of 300

days later. Thus, Cannon did not timely file his claims based on St. Paul’s failure to promote

him, unless that failure was part of a continuing violation. 

The Court holds that Cannon’s failure to promote claims were not part of a continuing

violation. In AMTRAK v. Morgan, 536 U.S. 101 (2002), the Supreme Court clarified the

continuing violations doctrine. The Court stated that “[d]iscrete acts such as termination,

failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of

discrimination and each retaliatory adverse employment decision constitutes a separate

actionable ‘unlawful employment practice.’” Id. at 114. The Court therefore held that

“discrete discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for

filing charges alleging that act. The charge, therefore, must be filed within the 180- or

300-day time period after the discrete discriminatory act occurred.” Id. at 113. The Fifth

Circuit has also followed Morgan, finding that a demotion occurring more than 300 days

before the EEOC charge was a discrete employment action that does not get the benefit of

the continuing violations doctrine. Pegram v. Honeywell, Inc., 361 F.3d 272, 280 (5th Cir.

2004). Here, the failure to promote Cannon was a discrete act that was required to be

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2

St. Paul also moves to dismiss the promotion based claims because the summary judgment

record reveals that Cannon has no evidence of unlawful discrimination. Because the Court

dismisses the failure to promote claim for failure to exhaust administrative remedies, the

Court does not consider St. Paul’s alternate grounds for relief. 

ORDER – PAGE 5

presented to the EEOC within 300 days of occurring. Thus, Cannon failed timely to present

this charge to the EEOC and cannot avail himself of the continuing violations doctrine.2

Accordingly, the Court grants St. Paul’s motion for summary judgment with respect to the

failure to promote claims. 

B. Performance Improvement Plan Claims

St. Paul moves for summary judgment on Cannon’s claims based on the Performance

Improvement Plan because requiring Cannon successfully to complete the Plan is not an

actionable adverse employment action. At the outset, Cannon claims that recent Supreme

Court and Fifth Circuit precedents drastically altered the summary judgment landscape in

employment cases relying on circumstantial evidence. The Fifth Circuit recently clarified

the proper summary judgment analysis in Rachid v. Jack in the Box, Inc.:

Under . . . the modified McDonnell Douglas approach: the plaintiff must still

demonstrate a prima facie case of discrimination; the defendant then 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). If a

plaintiff demonstrates that age was a motivating factor in the employment

decision, it then falls to the defendant to prove that the same adverse

employment decision would have been made regardless of discriminatory

animus. If the employer fails to carry this burden, plaintiff prevails. 

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ORDER – PAGE 6

376 F.3d 305, 312 (5th Cir. 2004) (internal quotations and citations omitted). Thus, summary

judgment procedure in a circumstantial evidence case has been changed only at the third

stage where a plaintiff may elect to proceed under either the pretext theory or mixed-motives

theory; the plaintiff must still present a prima facie case. In order to establish a prima facie

case of disparate treatment discrimination, the plaintiff must prove “(1) he is a member of

a protected class; (2) he was qualified for the position; (3) he suffered an adverse

employment action; and (4) he was replaced by someone not of the protected class or others

similarly situated were more favorably treated.” Stewart v. Mo. Pac. R.R., 121 Fed. Appx.

558, 561 (5th Cir. 2005). See also Okoye v. Univ. of Tex. Health Sci. Ctr., 245 F.3d 507,

512-13 (5th Cir. 2001). 

Cannon also argues that he has direct evidence of discrimination, relieving him

entirely of the duty to establish a prima facie case of discrimination. It is true that

employment discrimination plaintiffs with direct evidence of discrimination need not proceed

under the burden-shifting analysis clarified in Rachid. See, e.g., Trans World Airlines, Inc.

v. Thurston, 469 U.S. 111, 121 (1985); Lawrence v. University of Texas Med. Branch, 163

F.3d 309, 312 (5th Cir. 1999). However, even if Cannon produces direct evidence of

discrimination, he must have been subject to an adverse employment action to sue under

either Title VII or the ADEA. 42 U.S.C. § 2000e-2(a); 29 U.S.C. § 623(a); Okoye, 245 F.3d

at 512-13 (Title VII); Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003) (ADEA).

Thus, Cannon must still show an adverse employment action.

Cannon cannot succeed on his claim of discrimination with respect to the Performance

Improvement Plan because being required successfully to complete such a plan is not an

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ORDER – PAGE 7

adverse employment action as a matter of law. The Fifth Circuit has held repeatedly that

adverse employment actions must be ultimate in nature and do not include “every decision

made by employers that arguably might have some tangential effect upon those ultimate

decisions.” Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). “‘Ultimate employment

decisions’ include acts ‘such as hiring, granting leave, discharging, promoting, and

compensating.’” Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting

Dollis, 77 F.3d at 782). 

The Performance Improvement Plan is not an actionable adverse employment action

because it is not an ultimate employment decision. For example, an employer who is

unhappy with an employee’s job performance does not take an actionable adverse

employment action by placing written reprimands in the employee’s file. Mattern, 104 F.3d

at 708 (“[H]aving documented reprimands in her file may have increased the chance that she

would eventually suffer an adverse employment action but, like the actions in Dollis, neither

were they ultimate employment decisions . . . .”). Similarly, receiving low performance

evaluation scores from an employer is not an actionable adverse employment action.

Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 n.11 (5th Cir.

1998) (“[T]he evidence is insufficient to demonstrate that the evaluation itself constitutes an

adverse employment action actionable under Title VII.”). The Fifth Circuit has even held

that placing an employee on probation with a temporary loss of pay is not actionable as an

adverse employment action. Stewart v. Mo. Pac. R.R., 121 Fed. Appx. 558, 562-63 (5th Cir.

2005). Thus, an employer who is unsatisfied with an employee’s work does not make an

ultimate employment decision when placing the employee in a remedial program.

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ORDER – PAGE 8

Accordingly, the Court grants St. Paul’s motion for summary judgment with respect to the

Performance Improvement Plan claims. 

C. Termination Claims

St. Paul moves for dismissal of Cannon’s claims premised on his termination because:

(1) the summary judgment record reveals no direct evidence of discrimination, (2) Cannon

fails to raise a fact issue regarding whether St. Paul’s legitimate non-discriminatory reason

was a pretext, and (3) Cannon also fails to raise a fact issue regarding whether age or gender

discrimination was a motivating factor in Cannon’s termination. 

The Court first considers whether Cannon has direct evidence of discrimination. The

only potential direct evidence of age and gender discrimination is Robin Nicks’ statement

to Cannon telling him that Nicks did not want Cannon to participate in the “good ol’ boy

sales rep” activities. St. Paul argues the comment is a “stray remark” that is not evidence of

discrimination. “[I]n order for comments in the workplace to provide sufficient evidence of

discrimination, they must be ‘1) related [to the protected class of persons of which the

plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment

decision]; 3) made by an individual with authority over the employment decision at issue;

and 4) related to the employment decision at issue.’” Rubinstein v. Administrators of the

Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000); (quoting Brown v. CSC Logic,

Inc., 82 F.3d 651, 655 (5th Cir. 1996) (brackets in original)). 

The Court holds that the “good ol’ boy” remark fails to meet three of the four

elements. First, the terms “ol’” and “boy” in context do not actually relate to age and gender

as Cannon claims. The Court holds that these terms in context mean a matter of style –

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ORDER – PAGE 9

specifically a sales and marketing approach as contrasted with the strategic planning that

made up Cannon’s job duties. Second, Robin Nicks made this remark approximately five

months before terminating Cannon, making it remote in time from the adverse employment

action. Third, and finally, this remark was not related to Nicks’ decision to fire Cannon.

Rather it was related to defining Cannon’s duties by distinguishing them from the sales

staff’s duties. As a result, Cannon has failed to produce any direct evidence of

discriminatory animus. 

The Court next considers whether Cannon can make out a prima facie case for either

age or gender discrimination when Cannon was replaced by a male candidate only

insignificantly younger than Cannon. To make out a prima facie case for discrimination,

Cannon must prove, among other things, that “he was replaced by someone not of the

protected class or others similarly situated were more favorably treated he.” Okoye v. Univ.

of Tex. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). Here, St. Paul replaced

Cannon with another male employee, Mickey Krefting. Thus, Cannon’s mere replacement

with Krefting cannot establish a prima facie case for gender discrimination. 

St. Paul also argues that because Cannon’s replacement was only seven years younger,

Cannon cannot establish a prima facie case of age discrimination. See O’Connor v.

Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) (“[A]n inference [of

discrimination] cannot be drawn from the replacement of one worker with another worker

insignificantly younger.”); Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998)

(“[N]o reasonable jury could find that Bush’s 41 year old replacement was ‘substantially

younger’ than Bush (then 46 years old).”). The Fifth Circuit considered an age disparity of

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3

However, such a small disparity does tend to rebut any circumstantial evidence of

discriminatory intent. Because St. Paul argues that Cannon’s circumstantial evidence is

insufficient at the pretext/mixed-motives stage, the Court addresses such argument below in

the context of the third step of the burden shifting analysis. 

ORDER – PAGE 10

five years in Rachid; although the Court did not decide whether a five year difference was

substantial or not, it did note that it presented “a close question.” See Rachid, 376 F.3d at

313. The Court is not prepared to declare an age difference of approximately seven years

insubstantial as a matter of law.3

 Thus, the Court will assume that Cannon established a

prima facie case of discrimination. 

The Court next considers whether Cannon’s circumstantial evidence of discrimination

is sufficient to create a genuine issue of material fact regarding whether St. Paul’s legitimate

nondiscriminatory reason for terminating Cannon was a pretext or whether age or gender

discrimination was a motivating factor in Cannon’s discharge. The circumstantial evidence

is: (1) Robin Nicks’ comment to a co-worker that “she would really prefer it if Cannon was

not in the job;” (2) Robin Nicks’ keeping performance related data on Cannon but not on

other employees who directly reported to Nicks; (3) Collins, a younger male, was allowed

to go play golf while Cannon was not; (4) discussing Cannon’s performance with other St.

Paul employees but not discussing anyone but Cannon; (5) inviting younger female

employees to meetings, functions and meals but not Cannon; (6) Ripa, a younger employee,

was allowed to buy incentives for agents but Nicks refused to allow Cannon to buy an agent

a dozen golf balls; (7) placing Cannon on the Performance Improvement Plan; and (8)

replacing Cannon with a younger man. 

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ORDER – PAGE 11

The Court holds that these comments, either individually or in the aggregate, are

insufficient to raise a fact issue of pretext or mixed motive. Robin Nicks’ comment that she

would prefer it if Cannon were not working at St. Paul is not related to age or gender and

thus, is not probative of discrimination. See Rubinstein, 218 F.3d at 400-01. The remaining

facts also do not tend to rebut St. Paul’s legitimate nondiscriminatory reason or show

discrimination was a motivating factor. Cannon’s circumstantial evidence of age or gender

discrimination must raise a fact issue on whether other employees were “treated differently

under circumstances ‘nearly identical’ to his.” Mayberry v. Vought Aircraft Co., 55 F.3d

1086, 1090 (5th Cir. 1995). None of the alleged disparate treatments involved employees

who were similarly situated to Cannon. For example, none of the younger female employees

Nicks allegedly invited to more events than Cannon was an RMD like Cannon was.

Furthermore, there is no evidence that other employees who reported directly to Robin Nicks

had Cannon’s level of responsibility or work history. Cannon also has no evidence that St.

Paul was motivated by discriminatory animus when it placed him on the Performance

Improvement Plan. Cannon’s assertion that he completed the Performance Improvement

Plan while Robin Nicks did not amounts to questioning St. Paul’s business judgment. See

id. at 1091 (“The question is not whether an employer made an erroneous decision; it is

whether the decision was made with discriminatory motive.”). As already indicated, the

small disparity between the ages of Cannon and his male replacement Mickey Krefting is no

evidence of gender discrimination and, at best, weak evidence of age discrimination. See

O’Connor, 517 U.S. at 313. Even assuming these facts are true, they constitute no more than

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ORDER – PAGE 12

a scintilla of evidence showing that St. Paul terminated Cannon because of his age or gender.

Accordingly, the Court grants St. Paul’s motion for summary judgment. 

SIGNED May 5, 2005.

_________________________________

David C. Godbey

United States District Judge

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