UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HELEN TUCKER,

Plaintiff,

VS.

SAS INSTITUTE, INC.,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:05-CV-1520-G

)

) ECF

)

MEMORANDUM OPINION AND ORDER

Before the court are the motion of the defendant, SAS Institute, Inc. (“the

defendant” or “SAS”), for summary judgment (“the defendant’s motion”), the motion

of the plaintiff, Helen Tucker (“the plaintiff” or “Tucker”), to strike portions of the

defendant’s summary judgment evidence (“the plaintiff’s motion to strike”), and the

defendant’s objections to the plaintiff’s summary judgment response evidence (“the

defendant’s objections”). For the reasons set forth below, the plaintiff’s motion to

strike is denied, the defendant’s objections are overruled, and the defendant’s motion

for summary judgment is granted. 

 

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I. BACKGROUND

This case arises out of the defendant’s termination of Tucker’s employment

with SAS. The defendant, a large, privately owned software company, laid off

twenty-three employees, including the plaintiff, in March 2005. See Defendant’s

Brief in Support of its Motion for Summary Judgment (“Defendant’s Motion”) at 1. 

Employees at SAS are grouped into “divisions” and then into smaller “business

units.” Id. at 4. Susan Carroll (“Carroll”) was the “Operations Manager” for the

“Retail Business Unit” of the “Sales Division,” and Tucker was an employee within

that business unit and division. Id. In 2004, SAS determined the revenues of the

Sales Division were inadequate to support its staff; thus, managers in the Sales

Division were required to eliminate jobs. Id. at 6. 

In preparation for the lay off, managers within the Sales Division, including

Carroll, were instructed to evaluate their respective business units and determine

which positions under their control could be eliminated in order to reduce costs. Id.

at 1. Managers were instructed to use three criteria in deciding which positions

should be eliminated: (1) whether there were any redundant functions in their

subdivision that were being supported by employees outside the subdivision; (2) the

economic factors that contributed to the success of the business unit; and (3) whether

all support positions under the manager were absolutely critical to the business unit’s

 

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1 The defendant states Tucker was informed of the decision to lay her off

on March 24, 2005, but the plaintiff alleges in her complaint that the date was

March 23, 2005. See Complaint ¶ 13. 

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ability to conduct business. Id. at 6. Using these criteria, Carroll selected two

employees under her supervisory authority to be laid off. Id. at 7. 

On or about March 24, 2005,1

 Tucker was advised that she was being laid off

effective May 23, 2005. Id. Tucker also received ten weeks severance pay. Id. Upon

receiving notice of her impending termination, Tucker filed a charge of discrimination

with the EEOC. Id. at 8. Because the EEOC was unable to determine that SAS had

violated the relevant statutes, it sent Tucker a right to sue letter on May 5, 2005. See

Defendant’s Appendix at 56. 

While her charge was pending before the EEOC, Tucker applied for three other

positions with SAS. See Plaintiff’s Complaint ¶ 16. However, SAS did not hire

Tucker for any of those positions, and Tucker has alleged that SAS decided not to

hire her for any of the positions in retaliation for her decision to file a charge with the

EEOC. Id. SAS has moved for summary judgment on both of Tucker’s claims -- for

disparate treatment in her termination, and for retaliation. 

II. ANALYSIS

A. Legal Standard for Summary Judgment

Summary judgment is proper when the pleadings and evidence before the court

show that no genuine issue exists as to any material fact and that the moving party is

 

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entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Celotex

Corporation v. Catrett, 477 U.S. 317, 323 (1986). The disposition of a case through

summary judgment “reinforces the purpose of the Rules, to achieve the just, speedy,

and inexpensive determination of actions, and, when appropriate, affords a merciful

end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn

Company, 780 F.2d 1190, 1197 (5th Cir. 1986). 

While all of the evidence must be viewed in a light most favorable to the

nonmovant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v.

S.H. Kress & Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations

nor unsubstantiated assertions will satisfy the nonmovant’s summary judgment

burden. Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002)

(citing Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). 

A genuine issue of material fact exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 

The movant makes the necessary showing by informing the court of the basis

of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues. Celotex, 477 U.S. at 323. The pleadings, depositions,

admissions, and affidavits, if any, must demonstrate that no genuine issue of material

fact exists. FED. R. CIV. P. 56(c). 

 

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If the movant makes the required showing, the nonmovant must then direct

the court’s attention to evidence in the record sufficient to establish that there is a

genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this

burden, the “opponent must do more than simply show . . . some metaphysical doubt

as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio

Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the

evidence is sufficient to support a resolution of the factual issue in her favor. 

Anderson, 477 U.S. at 249. When conflicting evidence is presented, the court is not

permitted to make credibility determinations regarding the evidence. See Lindsey v.

Prive Corporation, 987 F.2d 324, 327 (5th Cir. 1993). The nonmovant cannot survive

a motion for summary judgment, however, by merely resting on the allegations in her

pleadings. Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d

186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988); see also Celotex, 477 U.S. at

324.

B. Standard for Summary Judgment Evidence

To the extent the nonmovant bears the burden of demonstrating a genuine

issue of material fact, the nonmovant need not present evidence meeting the

admissibility requirements for trial. See Celotex, 477 U.S. at 324. Rather, the

nonmovant may rely on any form of evidence listed in Rule 56(c). See id. (noting the

nonmovant does not need to depose her own witnesses to defeat a motion for

 

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summary judgment). While the form of the nonmovant’s evidence need not be

admissible, the content of the evidence must meet evidentiary requirements. See

Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997) (finding that the hearsay

statements in an affidavit submitted to defeat summary judgment were “incompetent

summary judgment evidence”). That is, while an affidavit has limited admissibility at

trial, it is sufficient evidence to defeat a motion for summary judgment, but

inadmissible statements in the affidavit, such as hearsay statements, may not be

considered by the court. See id. 

C. The Plaintiff’s Motion to Strike

The plaintiff has asked the court to strike portions of a number of affidavits

which the defendant submitted along with its motion for summary judgment. The

plaintiff challenges paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Carroll’s affidavit on

the grounds that they are based on hearsay and that they contain conclusory

statements. See Plaintiff’s Motion to Strike at 2. The plaintiff challenges paragraphs

2, 3, 4, 5 and 6 of Marc Witorsch’s affidavit and the exhibits to the affidavit on

hearsay grounds. Id. at 2-3. The plaintiff challenges paragraphs 2, 3, 4 and 13 of

Janet Stone’s affidavit on the grounds that they are based on hearsay and that they

contain conclusory statements. Id. at 3. The plaintiff challenges paragraphs 2, 3, 4

and 5 of Angela Pettus’s affidavit on the grounds that they are based on hearsay and

that they contain conclusory statements. Id. The plaintiff challenges paragraphs 2

 

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and 3 of Shelly McClanahan’s affidavit on the grounds that they are based on hearsay

and that they contain conclusory statements. Id. Finally, the plaintiff challenges

paragraphs 2 and 3 of Kelly Levens’s affidavit on the grounds that they are based on

hearsay and that they contain conclusory statements. Id. 

It is unclear which specific sentences or statements in any of the affidavits the

plaintiff believes should be stricken. See Plaintiff’s Motion to Strike at 2-4. The

plaintiff simply provides a list of the paragraphs she wishes to challenge and the vague

assertion that the information contained in those paragraphs is “based on

inadmissible hearsay” and the paragraphs “are laced with conclusory, self-serving

statements that are inadmissible.” Id. 

The court is not required to review large quanta of evidence to ferret out

inadmissible statements. Rather, Federal Rule of Evidence 103(a)(1) requires an

objecting party to make specific objections detailing the specific evidence the party

wishes to have stricken and stating the specific grounds upon which each piece of

evidence should be stricken. See United States v. Avants, 367 F.3d 433, 445 (5th Cir.

2004). Objections lacking specificity do not satisfy the requirements of Rule 103. 

United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998). “A loosely formulated

and imprecise objection will not preserve error. Rather, a trial court judge must be

fully apprised of the grounds of an objection.” Id. (citations omitted). 

 

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Because the plaintiff’s objections in her motion to strike do not meet the

specificity requirement of Rule 103(a)(1), the motion is denied. Even so, the court

will not consider any of the defendant’s evidence that is plainly inadmissible. See

Federal Rule of Evidence 103(d). 

D. Defendant’s Objections to Plaintiff’s Evidence

The defendant has objected to numerous factual assertions contained in the

plaintiff’s brief in response to the defendant’s motion for summary judgment. As

SAS has noted in its written objections, some of the factual assertions are supported

by citations to the plaintiff’s appendix while others are not backed by any supporting

documentation. Unless the assertions contained in the plaintiff’s brief are supported

by accurate citations to the record, they are merely “unsubstantiated assertions”

which are not competent summary judgment evidence. See Federal Rule of Civil

Procedure 56(c); Calbillo, 288 F.3d at 725. 

Although a party’s briefs should point the court to competent summary

judgment evidence -- such as affidavits, depositions or interrogatory responses

contained in the party’s appendix -- in order to support the factual assertions

contained in the party’s briefs and pleadings, the briefs themselves, like an attorney’s

opening or closing argument in trial, are not evidence. SAS has only objected to the

already inadmissible statements contained in Tucker’s brief and not to the actual

evidence contained in the plaintiff’s appendix. For example, the defendant’s first

 

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“objection” is that “Plaintiff’s characterization of herself as being qualified for the

position” is not substantiated by the sections of her appendix to which the plaintiff

cites. See Defendant’s Objections at 2. This objection does not challenge the

admissibility of the evidence cited by Tucker; it simply raises the argument that the

portion of the record cited does not support Tucker’s assertion that she was qualified

to be an account executive. Id.; see Plaintiff Helen Tucker’s Brief in Opposition to

Defendant’s Motion for Summary Judgment at 1, 9.

All of the defendant’s “objections” follow the same form; they challenge the

allegedly “conclusory,” “overbroad,” and/or “vague” contentions set forth in the

plaintiff’s brief. See Defendant’s Objections at 2-10. Accordingly, the defendant’s

objections are better classified as responsive arguments. The defendant appears to

have presented these objections to explain why it believes the plaintiff has not

adequately shown the existence of a disputed material fact rather than for the purpose

of objecting to any actual evidence. Id. Indeed, a review of the plaintiff’s appendix

reveals materials that are prima facie competent summary judgment evidence. The

appendix contains Tucker’s declaration, SAS’s answers to interrogatories,

documentary evidence obtained via discovery, deposition transcripts, an email, and a

letter, none of which has been challenged by the defendant as inadmissible. See

Plaintiff’s Appendix at 1-81. 

 

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2 In its brief, the defendant separates Tucker’s first cause of action, for

disparate treatment, into two parts -- allegations of pre-termination wrongful conduct

and allegations of wrongful conduct involved in Tucker’s termination. The plaintiff

does not make such a distinction in labeling the causes of action in her amended

complaint, nor does she argue in her response brief in favor of a cause of action for

any adverse employment action except her termination. See Plaintiff’s First Amended

Complaint ¶¶ 18-23; Plaintiff Helen Tucker’s Brief in Opposition to Defendant’s

Motion for Summary Judgment at 8 (positing only that the plaintiff was subjected to

adverse employment action when she was terminated). Because the plaintiff has not

analyzed her first cause of action -- as the defendant has -- in two parts, the court will

not separate Tucker’s disparate treatment cause of action in the discussion here. 

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Because none of the defendant’s “objections” challenges the validity of

Tucker’s summary judgment evidence, the objections are denied. Even so, the court

will not consider any of the plaintiff’s evidence that it finds to be plainly

inadmissible. See Federal Rule of Evidence 103(d). 

E. The Motion for Summary Judgment

SAS has moved for summary judgment on both the Title VII and Section 1981

causes of action alleged in Tucker’s complaint: (1) a claim involving unlawful

employment practices, including disparate treatment and racial discrimination and

(2) a claim involving retaliation for Tucker’s complaints regarding the alleged racial

discrimination.2 See Defendant’s Motion at 11; Plaintiff’s First Amended Complaint

¶¶ 18-26. 

As a preliminary matter, it should be noted that the same evidentiary standards

apply to claims under Title VII, 42 U.S.C. § 2000e, et seq., as apply to claims under

42 U.S.C. § 1981. Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 468 (5th Cir.

 

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2002). Therefore, evidence that establishes a prima facie case of racial discrimination

under Title VII will also establish a prima facie case of discrimination under Section

1981. Likewise, evidence of a legitimate, non-discriminatory motive for the

employment action will defeat both a Title VII claim and a Section 1981 claim. 

Because the same standards apply to the plaintiff’s causes of action under both

statutes, see LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996), the

court will only directly address the plaintiff’s Title VII allegations. 

There are two broad types of Title VII cases -- those based on direct evidence,

see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), and those based on

circumstantial evidence, see McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). Differing standards accompany these two expansive categories. Under the

Trans World Airlines line of cases, when a plaintiff is able to offer direct evidence in

support of a Title VII claim, the defendant must produce evidence to show that the

adverse employment decision would have occurred even in the absence of the

unlawful purpose. See Fierros v. Texas Department of Health, 274 F.3d 187, 192 (5th

Cir. 2001). Direct evidence in the context of Title VII includes “any statement or

written document showing a discriminatory motive on its face.” See id. at 195

(quoting Portis v. First National Bank, 34 F.3d 325, 329 (5th Cir. 1994)). When

confronting a motion for summary judgment in a case involving direct evidence, the

plaintiff -- to survive summary judgment -- need only show that retaliatory animus

 

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motivated or was a substantial factor in the adverse employment decision. See Fierros,

274 F.3d at 195. 

In the case at bar, the plaintiff has presented no direct evidence of

discrimination by SAS. See Plaintiff Helen Tucker’s Brief in Opposition to

Defendant’s Motion for Summary Judgment (“Plaintiff’s Brief”) at 6 (addressing only

the standard for cases involving “indirect evidence”). Thus, the plaintiff must rely on

circumstantial evidence to prove her claim. 

When a plaintiff attempts to prove a violation of Title VII using circumstantial

evidence, the McDonnell Douglas burden shifting analysis applies. See 411 U.S. at

802. The initial burden for such claims resides with the plaintiff, who must establish

the prima facie elements of her claims. See Okoye v. University of Texas Houston Health

Science Center, 245 F.3d 507, 512-13 (5th Cir. 2001); Ackel v. National Communications,

Inc., 339 F.3d 376, 385 (5th Cir. 2003). Once the plaintiff demonstrates these initial

elements, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its adverse employment decision. See McDonnell Douglas,

411 U.S. at 802. If the defendant is able to state such a proper reason, the burden

shifts back to the plaintiff to demonstrate that the reason proffered by the defendant

is mere pretext. See Okoye, 245 F.3d at 512; Gee v. Principi, 289 F.3d 342, 345 (5th

Cir. 2002). 

 

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3 Tucker contends an alternate standard may also apply in this case based

on Ford v. General Motors Corp., 656 F.2d 117 (5th Cir. 1981). See Plaintiff’s Brief at

7. However, nowhere in Ford does the test proffered by the plaintiff appear. A

similar test, however, has been adopted by the Fifth Circuit in age discrimination

cases. See, e.g., Woodhouse v. Magnolia Hospital, 92 F.3d 248, 252 (5th Cir. 1996). 

This test, applicable to reduction in force cases, provides that a plaintiff may establish

her prima facie case by offering evidence that the plaintiff (1) is a member of a

protected class, (2) suffered an adverse employment decision, (3) was qualified to

assume another position at the time of the discharge, and (4) there is evidence to

show that the employer intended to discriminate in reaching its decision. Id. 

Although Tucker cites this standard, or one similar to it, she does not

explain how she meets its requirements. It is undisputed that Tucker meets the first

two requirements -- she is an African American and she was terminated. However,

she offers no evidence in support of the third or fourth elements. See Plaintiff’s Brief

at 8-9. Indeed, the closest plaintiff comes to broaching either element is a statement

(continued...)

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1. The Disparate Treatment Claim

a. The Plaintiff’s Prima Facie Showing

To make a prima facie showing of discrimination, a plaintiff generally must

produce evidence to establish the following: (1) she belongs to a protected class;

(2) she is qualified for the position; (3) she suffered an adverse employment action;

and (4) she was either replaced by someone outside the protected class or others

outside the protected class were treated more favorably. Bryan v. McKinsey &

Company, Inc., 375 F.3d 358, 360 (5th Cir. 2004). In cases involving a reduction in

force where the plaintiff has not been replaced, as in this case, the fourth element

may be established by showing that members outside the protected class remained in

similar positions after the reduction in force. Faruki v. Parsons S.I.P., Inc., 123 F.3d

315, 318 (5th Cir. 1997).3

 

 

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3

(...continued)

that employees outside her protected class who held different types of jobs than the

one held by Tucker were offered promotions in order to avoid being terminated and

that Tucker was not offered a similar opportunity. See Plaintiff’s Brief at 9. 

However, as discussed infra, the evidence offered by Tucker in support of this

proposition fails to show the employees at issue did, in fact, receive a promotion. See

Plaintiff’s Appendix at 51. 

Because Tucker’s allegations regarding other employees is evidence of

neither the plaintiff’s qualifications for the positions nor any discriminatory intent by

SAS, the plaintiff has failed to show she has met the third or fourth prongs of the

Woodhouse test. 

4 As noted above, the defendant split Tucker’s first cause of action into

two parts in its brief. See Defendant’s Motion at 11-22. Although the defendant

argues that Tucker did not suffer an adverse employment action before her

termination, SAS concedes that Tucker’s termination qualified as an adverse

employment action. See id. at 16 (challenging only Tucker’s ability to establish the

fourth element of her prima facie case for disparate treatment). 

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Tucker has alleged that she satisfies the first three elements for the prima facie

showing: (1) she is African American, (2) she was qualified for her position as a

business development specialist II, and (3) she was terminated. See Plaintiff’s Brief at

8. Because the defendant does not dispute the plaintiff’s contention that she satisfies

these three elements,4

 the court will accept Tucker’s assertion. Cf. Paz v. Brush

Engineered Materials, Inc., 445 F.3d 809, 812 (5th Cir. 2006) (uncontroverted

allegations by a non-movant must be taken as true on issues where the court is

required to resolve factual disputes in the non-movant’s favor). 

With respect to the fourth element, Tucker must provide evidence that others

outside her protected class were allowed to remain in positions similar to the one

Tucker held before her termination. See Faruki, 123 F.3d at 318. The plaintiff

 

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alleges that two employees outside her protected class, Kelly Levens (“Levens”) and

Anissa Vaughn (“Vaughn”), held positions similar to hers at the time of her

termination, and both were treated more favorably as they were allowed to retain

their jobs. See Plaintiff’s Appendix at 27 (stating that Levens was a business

development specialist) and 30, 51 (stating that Anissa Vaughn was a business

development specialist in the retail business unit). 

Tucker also argues that Sue Ellen Ferrebee (“Ferrebee”) and Mary Chapman

(“Chapman”) were treated more favorably than Tucker, because both were promoted

from the position of sales administrator to that of sales strategist in order to shield

them from the reduction in force. See Plaintiff’s Brief at 9. However, the citations

the plaintiff makes to her appendix in support of this proposition clearly refute her

allegation. See Plaintiff’s Appendix at 21. The portion of the appendix at issue comes

from the deposition of Tucker’s supervisor, Carroll. When asked if Ferrebee and

Chapman had been “hired” or “moved” into the position of sales strategist, Carroll

replied: “We did not hire them, their titles were changed, they were already

employees of the retail business unit. . . . They had been performing that function

from the time that they joined the business unit, it was not a move or change in their

responsibilities.” Id. at 51. Carroll elaborates on this point later in her deposition

when she explains that Ferrebee and Chapman did not have to fill out any additional

 

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paperwork or interview for the position of sales strategist because it was not a

different position from the one they held previously. Id. at 53. 

In response to plaintiff’s proffer of evidence on the fourth element, SAS

contends that none of the four individuals listed by the plaintiff was similarly

situated. Regarding Ferrebee and Chapman, the defendant notes that they held

different jobs from Tucker as they were sales administrators (and later sales

strategists) instead of business development specialists. Defendant’s Reply in

Support of its Motion for Summary Judgment (“Defendant’s Reply”) at 4. Indeed, in

her deposition, the plaintiff admits that she was the only person in her business unit

performing her job duties at the time she was terminated. See Defendant’s Appendix

at 25 and 27. Because Ferrebee and Chapman had different job titles and different

job duties, their circumstances were not “nearly identical” to Tucker’s. See Okoye,

245 F.3d at 514-15. Thus, the plaintiff cannot prove disparate treatment by relying

on SAS’s actions with respect to Ferrebee and Chapman. 

Tucker has also alleged that Levens and Vaughn were similarly situated to her. 

See Plaintiff’s Brief at 9. Moreover, the plaintiff has provided evidence in the form of

deposition testimony stating that Levens and Vaughn were business development

specialists under Carroll’s supervision just like Tucker. See Plaintiff’s Appendix at 17

and 27. Although the defendant disputes the fact that Levens and Vaughn worked

under Carroll’s supervision, see e.g., Defendant’s Appendix at 2, the court must resolve

 

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this factual dispute in favor of the plaintiff. Lindsey, 987 F.2d at 327 n.14. 

Accordingly, the plaintiff has shown a prima facie case for disparate treatment. 

b. The Defendant’s Non-Discriminatory Reason

Because the plaintiff has made a prima facie showing of discrimination, she has

created a presumption that her disparate treatment claim is valid. Okoye, 245 F.3d at

512. The burden now shifts to the defendant to provide a legitimate, nondiscriminatory reason for its decision to terminate Tucker. Id. “This burden is one of

production, not persuasion; it ‘can involve no credibility assessment.’” Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). 

SAS has satisfied its burden. During SAS’s 2004 fiscal year, revenues for the

retail business unit, the unit in which the plaintiff worked, “were significantly less

than anticipated and less than the other Business Units at that time.” Defendant’s

Motion at 17; see Defendant’s Appendix at 34 (Tucker admitting that the revenues

for her business unit “were not good compared to the other business units”). 

Accordingly, SAS determined the ratio of support employees to sales employees was

too high, and decided to eliminate twenty-three positions, including the one held by

Tucker. See Defendant’s Appendix at 3, 65. All the positions eliminated by SAS

were in the sales division, of which the plaintiff’s business unit was a part. Id. at 66. 

Carroll selected Tucker for layoff because “there was an inadequate volume of total

sales revenues to support her position.” Defendant’s Appendix at 3. 

 

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Because eliminating a position for economic reasons during a reduction in

workforce is a valid, non-discriminatory reason for terminating an employee, see Equal

Employment Opportunity Commission v. Texas Instruments Inc., 100 F.3d 1173, 1181

(5th Cir. 1996), SAS has satisfied its burden on this prong of the McDonnell Douglas

burden shifting analysis. 

c. The Plaintiff’s Proof of Pretext or Mixed Motives

In a claim for disparate treatment, the burden shifting analysis requires the

plaintiff, at the pretext stage, to persuade the court that she has been the victim of

intentional discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 256 (1981). To satisfy her burden using circumstantial evidence, the plaintiff

must provide sufficient proof that the defendant’s purported justification for the

adverse employment action is “unworthy of credence” and was simply a pretext for

discrimination. Id.; Okoye, 245 F.3d at 513. Because the defendant has offered

legitimate, non-discriminatory reasons for laying off the plaintiff, Tucker must 

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-motive[s] alternative).

Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005). Thus, the plaintiff

must prove “‘by a preponderance of the evidence that the legitimate reasons offered

 

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5 In portions of her brief, the plaintiff implies that SAS has committed

some wrong simply because the “critical functions” of Tucker’s former job are still

being performed by employees within the company. See Plaintiff’s Brief at 8. 

However, a company is under no obligation to eliminate all the job duties handled by

an individual in a given position when the company eliminates the position. Tucker

seems to be laboring under the mistaken impression that a company may only decide

to lay off employees when the company decides it no longer has a need for any of the

job duties previously performed by that employee. However, the elimination of a

position merely indicates a company is overstaffed or that job duties have been

allocated inefficiently. A reduction in workforce does not necessarily imply the

company has fewer duties for its employees to collectively perform; it simply indicates

the company can afford fewer employees to carry out whatever duties must be done. 

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by the defendant were not its true reasons’ . . . ‘by showing that the employer’s

proffered explanation is unworthy of credence.’” Reeves, 530 U.S. at 143 (quoting

Burdine, 450 U.S. at 253, 256). 

The plaintiff offers several reasons for her belief that the defendant’s decision

to eliminate her position was a pretext for discrimination. First, she alleges the

position was not actually eliminated because the critical functions of her job were

moved to another employee, Levens, who was hired the same month that Tucker was

terminated.5

 Plaintiff’s Brief at 13. The plaintiff supports this allegation by pointing

to SAS’s response to an interrogatory indicating that Levens began work as a business

development specialist on March 1, 2005 and with a citation to Tucker’s deposition

stating similar information. See Plaintiff’s Appendix at 6, 27. The defendant

counters that Tucker has no evidence that Levens was hired into her business unit or

that the plaintiff’s job duties were transferred to Levens. Defendant’s Reply at 8. 

Indeed, SAS points to Tucker’s own deposition in which the plaintiff admits that

 

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Levens belonged to a different business unit -- the customer relations manager team --

and that others, including Vaughn, took over some of her job responsibilities. 

Plaintiff’s Appendix at 27-29. The summary judgment evidence does not show,

however, that the responsibilities of Tucker’s job were transferred to Levens.

Next, Tucker posits that Vaughn was brought into the retail business unit and

promoted to a business development specialist III. See Plaintiff’s Brief at 13. Tucker

does not explain how this demonstrates a pretext for discrimination, except to state

that Tucker was not informed that the position was available. Id. The court will

assume Tucker’s argument is that SAS’s failure to offer Tucker the position occupied

by Vaughn is evidence of discrimination. This argument is unpersuasive, however,

because the defendant has produced evidence that Vaughn was not moved into a new

position, but simply received a title change to more accurately reflect the work she

was already doing. See Plaintiff’s Appendix at 70. Therefore, there was not a vacant

position for which the plaintiff could have been considered, and no hypothetical

decision to consider -- or not to consider -- the plaintiff for such a non-existent

position could have been made. 

Third, the plaintiff argues that Chapman and Ferrebee were promoted to sales

strategists to prevent them from being terminated. Plaintiff’s Brief at 13-14. Because

the plaintiff does not argue that she was more qualified for these positions than

Chapman or Ferrebee or that she should have been considered for these positions, she

 

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has not shown that any promotions or title changes received by Chapman and

Ferrebee are pretexts for discrimination. See Price v. Federal Express Corp., 283 F.3d

715, 723 (5th Cir. 2002). 

Tucker further argues that the defendant’s decision to eliminate her position

was pretextual because she applied for another sales strategist position but was not

hired, and because she was not offered the business development specialist positions

received by Levens and Vaughn. The analysis in the previous paragraph regarding the

job title changes received by Chapman and Ferrebee applies with equal force to this

argument. In order to create a fact issue on pretext regarding a promotion or a move

to another position, Tucker must provide evidence that she was more qualified for

those positions than the individuals selected. Id. Tucker has made no showing that

she was more qualified than Levens, Vaughn, or the individual hired for the sales

strategist position for which she applied. Indeed, Tucker cannot make such a

showing with respect to the sales strategist position because none of the individuals

interviewed for the position was hired, and the position was eliminated before being

reposted at a later date. See Defendant’s Appendix at 12. 

Tucker’s next two arguments -- that the defendant has hired new employees

within Tucker’s former business unit since her termination and that SAS has hired

new account executives in the sales division since plaintiff’s termination without

considering Tucker for the positions -- fail for the same reason. See Plaintiff’s Brief at

 

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6 At the same time, Tucker admits that the defendant’s assertion that

economics motivated its decision to reduce its workforce “could very well be true.” 

Plaintiff’s Brief at 14. In spite of Tucker’s contradictory admission, the court will still

evaluate the plaintiff’s final argument. 

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14. Although the plaintiff has offered evidence that individuals have been hired, she

has provided no evidence that she was even qualified for the positions, let alone more

qualified than the individuals who were actually hired. See Plaintiff’s Appendix at 57,

79. 

Tucker’s final argument is premised on the fact that Levens, Ferrebee and

Chapman have all received raises since the plaintiff’s termination. Tucker argues that

these raises prove that the financial condition of the sales department was not the

true reason for the defendant’s decision to terminate Tucker.6

 Plaintiff’s Brief at 14-

15. Even if the court were to accept Tucker’s argument by agreeing that SAS’s

decision to eliminate twenty-three positions -- while giving raises to other employees 

-- was fiscally unwise, Title VII lawsuits are not “vehicles for judicial second-guessing

of business decisions.” Walton v. Bisco Industries, Inc., 119 F.3d 368, 372 (5th Cir.

1997); see also Bell v. Bank of America, 171 Fed.Appx. 442, 445 (5th Cir. 2006). 

Furthermore, although an examination of SAS’s business decisions might have been

instructive if Tucker’s position had been the only one eliminated, that is not the case. 

SAS eliminated twenty-three positions, and more than ninety percent of those jobs

were held by individuals outside the plaintiff’s protected class. See Defendant’s

Appendix at 7. The court cannot accept the plaintiff’s argument that economic

 

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factors did not play a role in the layoff; at its core, this argument rests on the absurd

proposition that SAS terminated twenty-one employees outside the plaintiff’s

protected class as a pretext to terminate two African American employees. 

In addition, though the plaintiff does not raise the argument specifically in the

section of her brief regarding her proof of pretext, Tucker took several opportunities

to point out her qualifications for the job she held that was eliminated by SAS. See,

e.g., Plaintiff’s Brief at 2, 7-8. Her qualifications for that job, however, are not

directly relevant to the issue of discrimination. “In the context of a reduction in force

. . . the fact that an employee is qualified for his job is less relevant -- some employees

may have to be let go despite competent performance.” Texas Instruments, 100 F.3d at

1181. Instead, the plaintiff must show that she was terminated in favor of less

qualified individuals outside her protected class in order for an issue of material fact

to exist. Id. Tucker has not met this burden. 

Although the plaintiff has failed to show that SAS’s decision to eliminate her

position was merely a pretext for discrimination, that is not the end of the court’s

inquiry. The court must also determine whether Tucker has met the alternative

standard for creating a fact issue by showing that the plaintiff’s protected

characteristic -- i.e., her race -- was a motivating factor in SAS’s decision to eliminate

her position. Keelan, 407 F.3d at 341. To satisfy the alternative standard, Tucker

must provide some evidence that the employer’s failure to retain her was based, at

 

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least in part, on discriminatory intent. See Roberson v. Alltel Information Services, 373

F.3d 647, 652 (5th Cir. 2004). 

Tucker has neither cited the mixed motive standard nor explicitly attempted to

prove disparate treatment thereunder. See Plaintiff’s Brief at 12-16. For the same

reasons that Tucker’s arguments regarding pretext fail, they also fail to show SAS’s

decision to eliminate the plaintiff’s position was partially based on discriminatory

intent. See Roberson, 373 F.3d at 652 (where the plaintiff offers no evidence from

which a fact finder can infer discriminatory intent, the result of the mixed motives

inquiry established in Desert Palace is the same as the result under the McDonnell

Douglas pretext inquiry). 

Because the plaintiff has failed to make a showing of pretext or mixed motives,

the burden does not shift back to the defendant “‘to prove that the same adverse

employment decision would have been made regardless of discriminatory animus.’”

Keelan, 407 F.3d at 341. 

In sum, the defendant has met its summary judgment burden on the plaintiff’s

disparate treatment cause of action and is entitled to judgment on that claim.

2. The Retaliation Claim

a. The Plaintiff’s Prima Facie Showing

To carry her initial burden of making a prima facie showing of discrimination

for her retaliation claim, the plaintiff must produce evidence to establish the

 

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following: (1) she engaged in a protected activity, (2) she was subject to an adverse

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

and the adverse employment action. See Ackel, 339 F.3d at 385. 

The plaintiff satisfies the first two elements. Tucker filed a charge with the

EEOC -- a protected activity -- and she was not hired for any of the positions to

which she applied — an adverse employment action. See Plaintiff’s Brief at 16. 

Moreover, SAS has not argued that Tucker failed to establish the first two elements. 

Thus, the burden falls on Tucker to make a prima facie showing that a causal

connection exists between her EEOC complaint and the defendant’s decision not to

hire her. 

b. The Causal Connection Evidence

In a claim for retaliation, the McDonnell Douglas burden shifting analysis forces

the courts to engage in two independent causation inquiries -- the first at the prima

facie stage and the second at the pretext stage. The causal connection element of the

prima facie case need not be proven under a “but for” causation standard; in other

words, it is not initially necessary for the plaintiff to demonstrate that the protected

activity was the sole reason for the adverse employment decision. See Ackel, 339 F.3d

at 385; Gee, 289 F.3d at 345. “Nevertheless, the plaintiff must produce some evidence

of a causal link between the protected activity and the adverse employment action to

 

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establish a prima facie case of retaliation.” Ackel, 339 F.3d at 385 (emphasis in

original). 

Tucker presents three arguments in her attempt to show a causal connection

between the defendant’s decision not to hire her and her charge of discrimination:

(1) she should have been hired as a sales strategist because she had never received any

negative feedback while working as an account executive, nor any reprimands

regarding the quality of her work; (2) Angela Pettus (“Pettus”) obtained information

from some unidentified person regarding the plaintiff’s previous sales records at the

same time that Tucker’s charge of discrimination was pending before the EEOC; and

(3) the plaintiff was qualified (according to her) for the account manager and

financial services sales specialist positions for which she applied because she had

“equivalent experience” and, thus, was not required to have a college degree. See

Plaintiff’s Brief at 16-17; Tucker Declaration ¶ 16. Even if the court assumes that all

of the plaintiff’s contentions are correct, Tucker has still failed to meet her burden of

showing a prima facie causal connection between her EEOC charge and the

defendant’s decision not to hire her. 

Tucker’s arguments provide absolutely no evidence that SAS refused her a job

in retaliation for the charge she filed with the EEOC. Tucker does not even contend

that Pettus or any of the other decision-makers knew of her EEOC charge, let alone

that such knowledge influenced their respective decisions not to hire her. See Gee,

 

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289 F.3d at 346 (“in determining whether an adverse employment action was taken

as a result of retaliation, our focus is on the final decisionmaker”). Moreover, the

defendant has provided uncontroverted evidence that none of the individuals who

made the decision not to hire the plaintiff was influenced by Tucker’s charge of

discrimination. See Defendant’s Appendix at 8, 9, 11.

Because Tucker has provided insufficient evidence that a causal connection

exists between the charge she filed with the EEOC and the defendant’s decision not

to hire her, she has failed to show a genuine issue of material fact regarding her

retaliation claim. Consequently, SAS is entitled to summary judgment on Tucker’s

retaliation cause of action. 

III. CONCLUSION

For the reasons set forth above, the motion of the plaintiff to strike the

defendant’s summary judgment evidence and the defendant’s objections to the

plaintiff’s summary judgment evidence are DENIED, and the defendant’s motion for

summary judgment is GRANTED. Judgment will be entered that Tucker take

nothing from SAS on her claims in this case. 

SO ORDERED.

November 7, 2006.

 

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