MEMORANDUM OPINION AND ORDER - PAGE 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HOLLY A. SANDERS §

 §

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-02462-R

§

ARGO DATA RESOURCE §

CORPORATION, §

 §

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant ARGO Data Resource Corporation’s Motion for Summary

Judgment (filed September 30, 2005). After careful consideration of all parties’ submissions, and

the law applicable to the issues before the Court, Defendant’s Motion is GRANTED in part and

DENIED in part.

I. BACKGROUND

Holly A. Sanders (“Plaintiff” or “Sanders”) was employed by ARGO Data Resource

Corporation (“Defendant” or “ARGO”) from June 1985 to August 2004. ARGO is a privatelyheld technology company specializing in the development of software for banks and other

financial institutions. It currently employs approximately 175 employees who are divided into

work groups. ARGO hired Sanders to fill a position in its Systems Development group, which is

comprised of systems developers performing various tasks such as designing systems, writing

code, and fixing errors. Plaintiff was hired as a Software Engineering Specialist (“SES”), a more

advanced, non-entry level position. At the time of her hiring, Sanders had a bachelor’s degree in

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

FILED

November 14, 2005

CLERK, U.S. DISTRICT COURT

 

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MEMORANDUM OPINION AND ORDER - PAGE 2

accounting, and work experience in mainframe technology. She was knowingly an at-will

employee throughout her nineteen-year tenure at ARGO.

Sanders received no notice of any poor performance issues from ARGO until February

2004. ARGO claims, however, that it experienced problems with Sanders’s work as early as

1993, and that she was given smaller, less complex projects in 2002 and 2003 as a result. 

Some time during the first week of February 2004, Plaintiff was involved in a dispute

with two other ARGO employees. The employees reported to Tom Corbin (“Corbin”),

Sanders’s direct supervisor, that they had requested, but not received, immediate assistance from

Sanders on a time-sensitive customer service issue. Corbin reported the incident Dave

Perkowski (“Perkowsi”), ARGO’s Vice President of Systems Development. 

As a result of the incident in conjunction with ARGO’s alleged ongoing concerns about

Sanders’s work performance, Sanders received a Personal Productivity Plan (“Plan”) on

February 12, 2004. The Plan outlined Sanders’s strengths and weaknesses, and placed her on

probation for ninety days beginning February 12, 2004, with the stated expectation that she show

improvement on her weaknesses during the probationary period. Shortly after the Plan’s

issuance, Sanders read a written statement to Corbin stating that the standards set forth by the

Plan were discrimination because they were unreasonable and unwarranted. She refused to sign

the plan, and instead proposed resigning and signing a waiver of liability in exchange for a

monetary settlement. Corbin told Sanders that she needed to take up the issue with another

employee at ARGO. Corbin did not mention the statement to anyone else at ARGO, although he

did report Sanders’s refusal to sign the Plan to Perkowski. Sanders did not distribute or read the

letter to any other ARGO employees. 

 

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MEMORANDUM OPINION AND ORDER - PAGE 3

The probation ended on May 12, 2004. At that time Perkowski met with David Engebos

(“Engebos”), ARGO’s president and Chief Operating Officer, and two other project managers,

not including Corbin. ARGO elected not to discharge Sanders, and instead “gave her the

opportunity to prove herself” by placing her in charge of a new project in response to her request

for “more leading edge roles.” (Def.’s Mot. ¶ 12). On May 27, 2004, Bill Hicks, ARGO’s

Human Resource Director, received a letter from Sanders’s attorney alleging age and gender

discrimination against ARGO.

In early June 2004, Sanders was granted the lead implementation role in a project called

Version Verification (“Version”). Perkowski was her immediate supervisor on this project. Plaintiff

admittedly experienced a number of performance problems on Version. In response to these

problems, Perkowski issued a Notice of Disciplinary Action (“NDA”) to Sanders on June 23, 2004.

The NDA gave specific examples of Sanders’s present and past performance issues, and set forth

a plan to address them. In July 2004, Perkowski assigned two other Developers to Version task that

had originally been assigned to Sanders, as the project had fallen substantially behind under

Sanders’s direction. On July 7, 2004, Sanders filed a claim with the Equal Employment

Opportunity Commission (“EEOC”) alleging gender and age-based discrimination. ARGO received

notice of this claim on July 12, 2004.

In an email dated August 13, 2004, Perkowski responded to an email dated the same day sent

by Sanders regarding issues concerning Version. In Sanders’s response, she accused Perkowski of

“malicious lies,” using the word “lies” four times and ending the correspondence with the question

“Whose integrity is at issue here?” (Def.’s Mot. at 6).

After a meeting between Perkowski and Engebos, Plaintiff was discharged by ARGO on

August 21, 2004. The reasons given for her termination were job performance (the speed of her

 

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MEMORANDUM OPINION AND ORDER - PAGE 4

work and her ability to manage complex issues) and insubordination (her hostile reaction to

criticism). At the time Sanders was fifty-years old. One new Developer, a 57-year old male, has

been hired since Sanders’s discharge. He was hired almost a year after the termination and

performs none of the functions performed by Sanders during her tenure.

On November 16, 2004, Plaintiff filed a Complaint against Defendant alleging gender and

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

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

as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff claims she was placed on probation

and eventually terminated, at least in part, because of her age and gender. She claims she was the

victim of compensation discrimination while an employee at ARGO. Finally, she claims that

Defendant terminated her in retaliation for her allegations of gender and age discrimination in June

2004. 

On September 30, 2005, Defendant filed a Motion for Summary Judgment on all of

Plaintiff’s claims.

II. ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper if “[i]f the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact. . .” FED. R. CIV. P. 56(c). An issue is material if it involves

a fact that might affect the outcome of a suit under governing law. See Burgos v. Southwestern

Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). The court must decide all reasonable doubts and

inferences in the light most favorable to the non-moving party. Lemelle v. Universal Mfg. Corp.,

18 F.3d 1268, 1272 (5th Cir. 1994). As long as there appears to be some support for the disputed

 

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MEMORANDUM OPINION AND ORDER - PAGE 5

allegations such that “reasonable minds could differ as to the import of the evidence,” the motion

must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The party moving for summary judgment bears the initial burden of identifying those

portions of the pleadings, depositions, answers to interrogatories, and admissions on file,

together with any affidavits, that it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party

bears the burden of proof on a claim upon which summary judgment is sought, the moving party

may discharge its burden by showing that there is an absence of evidence to support the nonmoving party’s case. Id. at 325. Once the moving party has satisfied this burden, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present

affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for

trial. Celotex, 477 U.S. at 322-23; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 585-86 (1986). 

The court must inquire as to whether there is sufficient evidence upon which reasonable

jurors could properly find by a preponderance of the evidence that plaintiff is entitled to a

verdict. Anderson, 477 U.S. at 249-50. In other words, summary judgment will be granted

“against any party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.” 

Celotex, 477 U.S. at 322. A “sufficient showing” consists of more than a scintilla of evidence in

support of the moving party’s position. Anderson, 477 U.S. at 249-50; Slaughter v. Allstate Ins.

Co., 803 F.2d 857, 860 (5th Cir. 1986) (stating that “conjecture alone” was insufficient to raise

an issue as to existence of an essential element).

 

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MEMORANDUM OPINION AND ORDER - PAGE 6

B. Time-Barred Claims

Defendant argues that a number of Plaintiff’s claims made at her deposition are timebarred because she didn’t file a complaint within 180 or 300 days of the act in question. (See

Def.’s Mot. at 9). A claimant in Texas must file a discrimination claim with the EEOC within

the statutorily mandated 300 days from the time of the alleged discrimination. See 42 U.S.C. §

2000e-5(e) (2003) (Title VII); 29 U.S.C. § 626(d)(2) (ADEA); Tyler v. Union Oil Co. of Cal.,

304 F.3d 379, 384 (5th Cir. 2002) (ADEA); Byers v. Dallas Morning News, 209 F.3d 419, 424

(5th Cir. 2000) (Title VII). Plaintiff filed her first EEOC claim on July 7, 2004, and a second on

September 24, 2004. (See Pl.’s Compl. ¶¶ 3-6). 

Therefore, the date for determining timeliness is 300 days prior to July 7, 2004, or

September 1, 2003. See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5th Cir.

2001) (stating that the date of the first filing is that which should be used to discern conduct that

may considered in a discrimination case). Any claims concerning adverse employment action

prior to this date are time-barred, and ARGO is entitled to summary judgment on each of these

claims.

This leaves Plaintiff the following conduct on which she may base her claims: any

compensation discrimination after September 1, 2003, her disciplinary probation from February

12, 2004 to May 12, 2004, and her termination on August 31, 2004. 

C. Race and Age Discrimination in Probation and Termination 

Plaintiff rightfully contends that this case should be analyzed under the McDonnell

 

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1 Claims of discrimination under Title VII and the ADEA are evaluated within the same analytical framework.

See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (title VII); Bodenheimer v. PPG Indus., Inc., 5

F.3d 955, 957 (5th Cir. 1993) (ADEA).

2

The Fifth Circuit traditionally provided two possible frameworks to analyze discrimination claims, depending

on whether the claim was supported with direct or circumstantial evidence. See generally Fabela v. Socorro Indep. Sch.

Dist., 329 F.3d 409, 414-15 (5th Cir. 2003); see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.

2002) (“In employment discrimination cases, a plaintiff may present his case by direct or circumstantial evidence, or

both.”). Cases involving the latter were analyzed under the McDonnell Douglas burden-shifting framework. Roberson

v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). Cases involving the former were analyzed under the Price

Waterhouse mixed-motives approach. Rachid v. Jack in the Box, 376 F.3d 305, 312 (5th Cir. 2004). Recent Supreme

Court and Fifth Circuit rulings, however, have merged the mixed-motive and pretext theories to create the “modified

McDonnell Douglas approach” used here. Desert Palace v. Costa, 539 U.S. 90 (2003); Rachid, 376 F.3d at 312.

MEMORANDUM OPINION AND ORDER - PAGE 7

Douglas approach.1 In an employment discrimination claim, the plaintiff must demonstrate a

prima facie case of discrimination. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.

2004). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory

reason for its decision to terminate the plaintiff. Id. If the defendant meets its burden of

production, it falls to the plaintiff to produce other 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).” Id.2

Although “[t]he ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the plaintiff,” Reeves v.

Sanderson Plumbing Prod., Inc., 530 U.S. 90, 143 (2000), the plaintiff need not produce

evidence of both pretext and actual discriminatory intent to create a fact issue on a

discrimination claim. Id. at 148; see also Machinchick v. PB Power, Inc., 398 F.3d 345, 350-51

(5th Cir. 2005).

1. Prima Facie Case

To create a prima facie case of discrimination, Plaintiff must show (1) she is a member of

 

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a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment

action; and (4) after her termination, her position was filled by a person outside her protected

class. See Sandstad, 309 F.3d at 897; Shackleford v. Deloitte & Touche, LLP, 190 F.3d 398, 404

(5th Cir. 1999). In cases involving adverse action other than termination, the fourth prong is met

when a plaintiff can show that similarly situated individuals not of the protected class were

treated more favorably than the plaintiff. Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 206 (5th

Cir. 1998).

Women and individuals at least forty years of age are members of a protected class. 42

U.S.C. § 2000e (prohibiting discrimination on the basis of sex); 29 U.S.C. 623(a)(1) (prohibiting

employment termination on the basis of age); 29 U.S.C. § 631(a) (specifying that individuals

over the age of forty are the class protected by this chapter). It is apparently undisputed that

Sanders was qualified for her position, and that she was placed on disciplinary probation from

February 12, 2004 to May 12, 2004, and terminated on August 31, 2004. 

Disciplinary probation is not sufficient to meet the “adverse employment action” prong

of a prima facie discrimination claim. The Fifth Circuit has a “strict interpretation of the adverse

employment element” of a prima facie discrimination claim. Pegram v. Honeywell, Inc., 361

F.3d 272, 282 (5th Cir. 2004). An adverse employment action must be “an ultimate employment

decision” such as hiring, firing, demoting, granting leave, and compensating. Id. (“An

employment action that does ‘not affect job duties, compensation, or benefits’ is not an adverse

employment action.”) (quoting Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002)). The Fifth

Circuit has specifically warned against expanding the definition of “adverse employment action”

to include disciplinary filings, supervisor reprimands. . . [any actions] that might jeopardize

 

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3 The Fifth Circuit has held in a unpublished opinion that probation is not an ultimate employment decision for

the purposes of a discrimination claim. Stewart v. Mo. Pac. R.R., 121 F. Appx. 558, 561 (5th Cir. 2005) (unpublished).

4 In addition, Plaintiff provides evidence that in addition to Corbin, Dean Coe and Stephen Chi, both of whom

were also men, assisted in assuming her responsibilities after she was terminated. (See Pl.’s Resp. at 9). Although

Plaintiff also contends that “four young employees” were hired between January and August of 2004, there is no mention

of their exact ages, their titles, their salaries, or their job responsibilities. (See Pl.’s Resp. at 11). The Court therefore

disregards this assertion as no more than a subjective belief.

MEMORANDUM OPINION AND ORDER - PAGE 9

employment in the future.” Shackleford, 190 F.3d at 407. 3 As Plaintiff provides no specific

evidence as to how her probation period affected her job duties, compensation, or benefits,

Defendant is entitled to summary judgment on this claim. 

Hence, the issue left for consideration in determining whether Plaintiff has made out a

prima facie case of discrimination is whether (1) she was replaced by an individual who was not

a member of her protected class, see Sandstad, 309 F.3d at 897, or (2) she was treated less

favorably than a similarly situated individual who was not a member of her protected class, see

Urbano, 138 F.3d at 206 .

Defendant asserts that Plaintiff does not meet the fourth prong to prove discriminatory

termination because she was not replaced after she was discharged. (See Def.’s Mot. at 10). The

only developer hired since Plaintiff’s departure was a 57-year-old male who came on with

ARGO fifty weeks after Plaintiff’s termination, and performs none of the functions previously

performed by Plaintiff. (See Def.’s Mot. at 10). Plaintiff does not dispute this contention, nor

does she argue that the hiring of a 57-year-old male developer fifty weeks after her termination

was sufficient to meet the fourth prong. Instead, she suggests that she established the fourth

prong with testimony showing that she was replaced by Tom Corbin, who was already employed

by ARGO at the time of her termination. (See Pl.’s Resp. at 9).4

 Defendant counters by

asserting that her job duties were assumed by two existing ARGO developers, one male and one

female, neither of who was Corbin. (See Def.’s Mot. at 7).

 

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MEMORANDUM OPINION AND ORDER - PAGE 10

With respect to Title VII cases, a plaintiff might present evidence that he was terminated

while “others who were not members of the protected class remained in similar positions.” Bauer

v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (citing Vaughn v. Edel, 918 F.2d 517, 521

(5th Cir. 1990); Meinecke v. H&R Block of Houston, 66 F.3d 77, 82 (5th Cir. 1995). Here,

parties dispute whether a male and female team assumed plaintiff’s job responsibilities after she

was discharged, or whether a male, or a group of male employees, did so. This contradiction is

sufficient to present a genuine issue of material fact that is sufficient to meet the fourth prong of

a prima facie case for gender discrimination. See Bauer, 169 F.3d at 966; Meinecke, 66 F.3d at

82.

Plaintiff also argues that she meets the fourth prong because she provides evidence that

she was discharged because of her age. In ADEA and Title VII cases, evidence of disparate

treatment may still suggest a discriminatory motive for the purposes of the fourth prong of the

prima facie test. Machinchick, 398 F.3d at 353 n.26. With respect to ADEA claims, the Fifth

Circuit has merely required evidence that plaintiff was “otherwise discharged because of his

age.” For example, in Machinchick v. PB Power, Inc., the court accepted evidence of an email

sent by a supervisor detailing a strategic plan to phase out older employees in order to promote a

“21st Century” mindset within the company. 298 F.3d 345, 352-53 (5th Cir. 2005) (stating that

this evidence created an inference that [the plaintiff’s] age was a factor in his termination). 

Indirect “stereotyping remarks” are also sufficient to support the inference of discrimination. Id.

at 353.

Plaintiff claims that she was unfairly singled out by Perkowski during her tenure at

ARGO, that she was passed over for project management and training on occasion, and that the

probation was her first disciplinary incident prior to her termination and occurred against her

 

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5 Plaintiff is not required to garner evidence of a quality such as would convince a jury on the full merits of

her claim. All she must show is evidence that creates an issue of material fact that disparate treatment occurred.

6 ARGO points to a number of observations over the years to support its assertions of concern over Plaintiff’s

work performance. In 1993, Plaintiff was working on a project called Graphic User Interface (“GUI”). Perkowski, who

was the project lead at the time, allegedly noticed that Plaintiff was slow, and that she required more help and

supervision than other project employees. (See Def.’s Mot. at 3). In 1998, Perkowski, who by then was in charge of

the Systems Development group, gave Plaintiff the lead on a project called ADTab. Again, he observed that her work

was unusually slow. He also received complaints from multiple customers about the product Plaintiff produced.

MEMORANDUM OPINION AND ORDER - PAGE 11

direct supervisor’s recommendation. While this activity may constitute evidence that Plaintiff

was treated differently, it doesn’t show that she was treated differently because of her gender or

race to the extent that discriminatory remarks and communication do. When combined,

however, with evidence that Plaintiff’s job responsibilities after her discharge were assumed by

employees not of her protected class, this showing is sufficient to support an inference of

discriminatory treatment. See, e.g., Machinchick, 398 F.3d at 353 & n.26.5

2. Pretext Burden

Once the plaintiff has established a prima facie case, the burden shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for its decision to terminate. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the defendant meets this burden of

production, the burden shifts back to the plaintiff to show that the defendant’s reason is either

false, or that the plaintiff’s protected characteristic was a motivating factor in the employer’s

decision. See id. at 804; Machinchick, 398 F.3d at 352; Rachid, 376 F.3d at 312.

Defendant offers legitimate, nondiscriminatory reasons for its action. It asserts that, after

receiving multiple opportunities in the form of probation periods to improve, Plaintiff was

discharged for the declining quality of her work and attitude. (See Def.’s Mot. at 11). ARGO

claims that it observed work performance problems with Plaintiff as early as 1993, and was

continually concerned about the speed of Plaintiff’s work and her ability to manage complex

issues up until February 2004,6

 as well as what it perceived as her hostile reaction to criticism

 

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Perkowski claims that he continued to assign Plaintiff projects because he felt she was making a genuine effort to

improve. (See Def.’s Mot. at 3). In 2001, he gave her the lead on another project. Again, Plaintiff’s product fell short

of the project goals, creating problems with customer satisfaction. Perkowski allegedly changed his strategy at that point,

assigning Plaintiff smaller, more manageable products during 2002 and 2003. (See Def.’s Mot. at 4). 

7 This is a burden of production, not a burden of persuasion, and cannot involve a credibility assessment.

Reeves, 530 U.S. at 142.

MEMORANDUM OPINION AND ORDER - PAGE 12

when she received her first probation onward. (See Def.’s Mot. at 7). Perkowski arrived at his

termination decision after discussing the issue with Engebos, ARGO’s President. (See Def.’s

Mot. at 7). This explanation satisfies the burden of production.7

As ARGO provided legitimate, nondiscriminatory reasons for Plaintiff’s termination,

“the presumption of discrimination created by [Plaintiff’s] prima facie case drops form the case,

leaving [her] with the ultimate burden of proving intentional discrimination.” Machinchick, 398

F.3d at 354. Plaintiff may meet this burden by providing circumstantial evidence sufficient to

create a fact issue such that the Defendant’s legitimate reason was a pretext for discrimination or

that discrimination was a motivating factor in the decision to terminate. See McDonnell

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

Plaintiff contends that the reasons Defendant offers were fabricated as a pretext for

discrimination. In the alternative, her age and gender were at least motivating factors in her

termination. Plaintiff offers evidence from deposition testimony that can be divided into five

primary bases for asserting that her deteriorating work performance and attitude were a pretext

for discrimination, or, at a minimum, that her age and / or gender were at least motivating factors

in her termination: (1) she was never “reprimanded, written-up, suspended and / or warned. . . of

poor performance issues” prior to her February 2004 probation (see Pl.’s Resp. at 2); (2) Corbin

gave Plaintiff good work reviews up to mid-summer 2004 (see Pl.’s Resp. at 3); (3) Corbin did

not support and tried to prevent the issuance of the Plan, the issuance of the NDA, and Plaintiff’s

eventual termination (see Pl.’s Resp. at 3, 10-11); (4) even though Plaintiff was told by

 

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8 In her deposition testimony, Plaintiff points to a meeting she had with Perkowski to ask him to remove the

February 2004 probation from her employment file. Plaintiff claims that Perkowski refused,said “I have a wife at home

in menopause, I don’t have time for you,” then opened his office door and left. (Pl.’s Resp. at 9). The Court can think

of a number of categories such a remark would fall into - insensitive, unprofessional, dastardly, treacherous - but

discriminatory or stereotypical is not one of them. It does not reference Plaintiff’s age or gender, either directly or

indirectly.

9 Although Plaintiff points to Corbin’s deposition testimony stating that he disagreed with her probation, he

claims he did so becuase he thought she would view it “as an attack” and “he didn’t think it would help” - he does not

comment on her work performance, and he expressly limits his testimony to the time prior to February 2004, when he

was her supervisor.

MEMORANDUM OPINION AND ORDER - PAGE 13

Perkowski that she passed the February 2004 probation with her “job intact,” he assigned her to

the Version Verification project to “set [her] up to fail” (see Pl.’s Resp. at 8, 12); (5) there was a

“general feeling” of “favoritism” at ARGO (see Pl.’s Resp. at 10).

Plaintiff fails to point to specific evidence showing that the reason behind Defendant’s

decision was that of gender or age discrimination. For example, Plaintiff sets forth no specific

evidence of direct or indirect remarks or expressive conduct concerning Plaintiff’s age or gender

by any of the decision-makers.8

 She presents no pattern or practice of gender or age-based

discrimination at ARGO. Instead, she provides evidence that her employer’s assertion were

false, or that her work performance and attitude were not deteriorating to a point that mandated

termination. The Supreme Court has stated that “[i]n appropriate circumstances, the trier of fact

can reasonably infer from the falsity of the explanation that the employer is dessembling to cover

up a discriminatory purpose.” Reeves, 120 S.Ct. at 2108. “Thus, a plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s asserted justification is false, may

permit a trier of fact to conclude that the employer unlawfully discriminated.” Id. at 2109.

Plaintiff’s evidence, however, does not counter Defendant’s arguments, nor does it create

conflicts with the substantial evidence to prove falsity. Plaintiff provides no evidence outside of

her own deposition countering the assertion that she completed tasks at a slower rate than her

colleagues during her tenure at ARGO.9

 It is uncontested that Plaintiff got into a dispute with

 

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10 Plaintiff contends that Corbin did not support the decision to terminate her, but she offers no evidence

showing that he was familiar with the reasons for her termination or the work on her project prior to the termination.

MEMORANDUM OPINION AND ORDER - PAGE 14

her team members concerning her refusal to meet with them in February 2004 concerning a

customer relations issue, and that Corbin reported this dispute to Perkowski. Plaintiff does not

contest her refusal to sign the Personal Productivity Plan preceding her probation, which was

meant to elucidate her job expectations and responsibilities. It is uncontested that Plaintiff’s

work on the June 2004 Version Verification was below standard - Plaintiff even admitted as

much in her deposition. Defendant asserts that Plaintiff called Perkowski a “malicious liar” in

reaction to job-related criticism she received from him, which she does not contest. There is no

assertion that Defendant strayed from company policy in its treatment of Plaintiff. Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 224-25 (5th Cir. 2000) (considering this factor in the

pretext analysis).10

As Plaintiff fails to provide evidence that her age and / or gender were motivating factors

in ARGO’s decision to terminate, or that ARGO’s reasons for terminating her were false, her

claim does not give rise to a material fact supporting age or gender discrimination. The Court

must grant summary judgment on this claim.

D. Compensation Discrimination

Plaintiff claims that she was discriminatorily paid less than her male counterparts. Title

VII states that it is unlawful “to discriminate against any individual with respect to his

compensation. . . because of such individual’s sex.” 42 U.S.C. § 2000e-2(a); see also Plemer v.

Parsons-Gilbane, 713 F.2d 1127, 1135 (5th Cir. 1983) (stating that a Title VII claim alleges

“individual, disparate treatment”). To establish a prima facie case, plaintiff must show that: (1)

her employer was subject to Title VII, (2) she performed work in a position requiring equal

 

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11 The only evidence that Plaintiff points to to support her compensation discrimination claim is that five

members of her ten-member work group received compensation higher than her own. Of those five, all were younger

and one was female. (See Pl.’s Resp. at 12).

MEMORANDUM OPINION AND ORDER - PAGE 15

skill, effort, and responsibility as others under similar working conditions, (3) she was paid less

than those employees providing the basis of comparison, and (4) the employer acted with

discriminatory intent. See Peters v. City of Shreveport, 818 F.2d 1148, 1153-54 (5th Cir. 1987).;

Lenihan v. Boeing Co., 994 F.Supp. 776, 797 (N.D. Tex. 1998) (stating that plaintiff in a Title

VII compensation discrimination case must show discriminatory intent).

After a plaintiff makes out a prima facie case for compensation discrimination, the

employer must then articulate a legitimate nondiscriminatory reason for its actions. See Plemer,

713 F.2d at 1136. If the employer carries this burden of production, the plaintiff must then prove

by a preponderance of the evidence that the proffered reasons are a mere pretext for

discrimination. Id. 

Plaintiff provides evidence that she was paid less than other employees in her work group

after September 1, 2003.11 She fails, however, to provide evidence that she performed work

requiring equal skill, effort, and responsibility as those who received higher pay. Although Title

VII discrimination-compensation claims are not limited to cases in which the plaintiff can “show

that he or she was being paid less than an employee [outside the protected class] for performing.

. . substantially equal work,” Plemer, 713 F.2d at 1131 (citing County of Washington v. Gunther,

452 U.S. 161, 101 (1981)), in a case where two relevant jobs are not equal, a plaintiff must

produce direct evidence that she would have been paid more if she were not in the protected

class. See id. at 1133-34. Plaintiff fails to do so - she simply provides no evidence that ARGO

based its compensation decisions on age or gender.

Here, Plaintiff’s failure to provide (1) evidence to support either an inference that she

 

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12 Even is Plaintiff had established a prima facie case, she presents no evidence to raise a factual issue on

whether ARGO’s nondiscriminatory explanation for the discrepancy was pretextual. ARGO provides ample evidence,

none of which Plaintiff contests, showing that the individuals who received higher pay than Plaintiff had different

degrees, higher level responsibilities that Plaintiff did not perform, stronger technical abilities to complete task quickly

and independently, higher accountability levels, and more positive “attitudes.” (See Def.’s Mot. at 14-15).

13 The anti-retaliation provisions of the ADEA and Title VII are similar and “cases interpreting the latter

provision are frequently relied on in interpreting the former.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 n.5 (5th

Cir. 1992). 

MEMORANDUM OPINION AND ORDER - PAGE 16

was receiving less pay for substantially similar work, or (2) direct evidence that she would have

been paid more had she not been a member of a protected class is fatal to her prima facie case.12

Plaintiff’s compensation-discrimination claim is therefore insufficient to withstand summary

judgment. 

E. Retaliation

Plaintiff contends that she was discharged in retaliation for filing complaints with the

EEOC for age and gender discrimination. To pursue a retaliation claim, a plaintiff must first

demonstrate a prima facie case of retaliation. Septimus v. Univ. of Houston, 399 F.3d 601, 610

(5th Cir. 2005). 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).13 Once a prima facie case is made, the defendant must

demonstrate a legitimate nondiscriminatory reason for the employment action. Pineda v. United

Parcel Serv., 360 F.3d 483, 487 (5th Cir. 2004). If the defendant meets this burden, the plaintiff

must then show that the offered reason is mere pretext for the retaliatory purpose. Id.

Filing a discrimination claim with the EEOC is a protected activity, see generally, e.g.,

Shirley v. Chrysler First, Inc., 490 F.2d 39 (5th Cir. 1992), and it is undisputed that Plaintiff’s

termination occurred. The question is whether a causal link exists between the protected activity

 

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MEMORANDUM OPINION AND ORDER - PAGE 17

and Plaintiff’s termination. To meet this prong, Plaintiff “must offer evidence from which the

jury may infer that retaliation, in whole or in part, motivated the decision to terminate.” 

Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004) (citing Evans v. City of

Houston, 246 F. 3d 344, 355 (5th Cir. 2001); Medina v. Ramsey Steel Co., 238 F.3d 674, 685

(5th Cir. 2001)). 

Plaintiff claims that the causal connection can be inferred because the adverse action

occurred after she filed her EEOC complaint. The Fifth Circuit has “made clear that ‘the mere

fact that some adverse action is taken after an employee engages in some protected activity will

not always be enough for a prima facie case.” Roberson, 373 F.3d at 655 (citing Swanson v.

General Servs. Admin., 110 F.3d 1180, 1188 n.3 (5th Cir.)). But here Plaintiff asserts that

Defendant had notice of her EEOC claim when it received a letter from her attorney on May 26,

2004 stating her intent to file, and when it received an EEOC notification letter dated July 12,

2004, a month before she was fired. (See Pl.’s Resp. at 8). This awareness alone is enough to

infer a finding that the decision to terminate and the protected activity “were not wholly

unrelated.” Medina, 238 F.3d at 684 (quoting Simmons v. Camden County Bd. of Educ., 757

F.2d 1187, 1189 (11th Cir. 1985)); see also Evans, 246 F. 3d at 354 (stating that close timing

between an employee’s protected activity and the adverse employment action may be sufficient

to meet the causal requirement).

The burden of production now shifts to Defendant to articulate a legitimate reason for its

termination of Plaintiff. As stated, supra Section II.C.2, Defendant asserts that Plaintiff was

terminated because of her declining work performance and attitude and supports this assertion

with specific examples. This explanation is sufficient to permit a factfinder to conclude that the

termination was not motivated by the employee’s engagement in the protected activity. See

 

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MEMORANDUM OPINION AND ORDER - PAGE 18

Medina, 238 F.3d at 685. 

The burden shifts back to the plaintiff to show that the offered reason is mere pretext for

the retaliatory purpose. Id. Plaintiff must show “a conflict in substantial evidence on the

ultimate issue of retaliation in order to withstand the motion for summary judgment.” Id. at

(quoting Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). In addition to

the temporal proximity of the EEOC complaint and adverse employment action, Plaintiff also

provides evidence of her unblemished work record prior to February 2004, Corbin’s objection to

her first probation and termination based on his experience as her supervisor, and the deposition

testimony of a co-worker who believed that Plaintiff was singled out and that there was an air of

“favoritism” in the workplace.

While these showings may not have been enough to show pretext for gender or age

discrimination, supra, they certainly are sufficient to show pretext for retaliation. In other

words, they are sufficient to raise a question of material fact on which reasonable minds could

conclude that termination would not have occurred “but for” the protected activity. Long v.

Eastfield College, 88 F.3d 300, 308 (5th Cir. 1998). While ARGO claims termination was

justified by ongoing problems identified before Plaintiff filed her first EEOC complaint, and

even gave her Version Verification to “prove herself,” Plaintiff claims that regardless of any

previous problems, termination would not have occurred had she never filed the complaint, and

that giving her a project that was allegedly beyond her capabilities was a component of the

retaliation. Viewing the evidence in the light most favorable to Plaintiff, a reasonable factfinder

could conclude that the explanation proffered by Defendant was pretext for retaliation. 

Summary judgment is precluded on this issue.

 

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MEMORANDUM OPINION AND ORDER - PAGE 19

III. CONCLUSION

For the reasons stated above, Defendant is entitled to summary judgment on Plaintiff’s

claims for gender and age discrimination and compensation discrimination, but not retaliation. 

Accordingly, the motion for summary judgment is GRANTED in part and DENIED in part.

It is so ORDERED.

ENTERED: November 14, 2005

___________________________________

JERRY BUCHMEYER

SENIOR U.S. DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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