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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANNETTE WILBER, §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-1140-L

§

THARALDSON EMPLOYEE §

MANAGEMENT COMPANY, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendant’s Motion for Summary Judgment, filed August 5, 2005. Upon

careful consideration of the motion, response, reply, appendices, competent summary judgment

evidence, and applicable law, the court grants in part and denies in part Defendant’s Motion for

Summary Judgment. 

I. Procedural and Factual Background

Plaintiff Annette Wilber (“Plaintiff” or “Wilber”) brought this action on May 26, 2004

against Defendant Tharaldson Employee Management Company (“Defendant” or “Tharaldson”)

pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; Title

VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e, et seq.; and

Chapter 103 of the Texas Labor Code. Wilber contends that Tharaldson violated the ADEA and

Title VII by terminating her employment because of her age and gender, and then by replacing her

with a female under the age of 40, who worked for less than two weeks before she was replaced with

a male who was also under 40 years old. Pl.’s Original Compl. ¶¶ 13, 17. She also alleges that

 

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Tharaldson violated Chapter 103 of the Texas Labor Code after it terminated her by knowingly and

maliciously disclosing false information to some of her prospective employers. Id. ¶ 19-22. 

Tharaldson filed its motion for summary judgment on August 5, 2005. It contends that no

genuine issue of material fact exists with respect to any of Wilber’s claims, and that it is therefore

entitled to judgment as a matter of law. Specifically, it asserts that Wilber cannot establish a prima

facie case of age discrimination because she cannot show that she was replaced by someone outside

the protected class, or someone younger, or that she was otherwise discharged because of her age.

Likewise, it contends that Wilber cannot establish a prima facie case of gender discrimination

because she was originally replaced by a woman, not a man. Tharaldson also contends that even if

Wilber can establish a prima facie case of age or gender discrimination, her poor performance and

attitude constituted a legitimate, nondiscriminatory reason for the termination decision. Tharaldson

further contends that Wilber cannot produce competent summary judgment evidence showing that

its asserted reason for terminating her is a pretext for age or gender discrimination. Finally,

Tharaldson asserts that it is entitled to summary judgment on Wilber’s claim brought under Chapter

103 of the Texas Labor Code because she fails to state a claim upon which relief can be granted.

It contends that Chapter 103 does not create a private cause of action; it instead provides immunity

for employers who make good faith job references. 

On August 24, 2005, Wilber filed her Response in Opposition to Defendant’s Motion for

Summary Judgment. Although she did not respond regarding her claim under Chapter 103, she

contends that she has set forth competent summary judgment evidence raising genuine fact issues

for both her ADEA and Title VII claims, and requests the court to deny the motion and allow the

claims to proceed to trial. The court now sets forth the facts upon which it relies to resolve the

 

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1

Both parties in their briefing state that the statement was made, if at all, in October of 2002. Wilber’s

deposition testimony is the only summary judgment evidence addressing the statement, and averred that Berryhill made

the statement on December 17, 2002. See Pl.’s App. at 43. Therefore, for purposes of this motion, the court determines

that the statement was made on December 17, 2002.

2

Because this is a summary judgment motion, the court assumes the truth of the statement since it appears in

the record, and the court gives credence to evidence favoring Wilber, the nonmoving party. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). 

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motion. In setting forth the facts, the court applies the summary judgment standard as set forth in

the following section. 

Wilber is a 54 year-old female. Def.’s App. at 5. She was hired by Tharaldson on February

22, 1999 as an Assistant General Manager for the Plano Fairfield Inn, a Marriott Hotel in Plano,

Texas, where she worked until she was terminated on February 17, 2003. Id. at 24, 88, 120. During

nearly four years of employment at the Plano Fairfield Inn, Wilber was supervised by three different

General Managers, one replacing the other. Id. at 88-90. Wilber and the General Manager reported

to Sheila Thomson (“Thomson”), the Tharaldson Area Director responsible for managing 11 hotels,

including the Plano Fairfield Inn. Id. at 88. 

The basis of Wilber’s gender and age discrimination claims is a statement she avers was

made by General Manager Charles Berryhill (“Berryhill”), her immediate supervisor, on December

17, 2002.1

 App. to Br. in Opp. to Def.’s Mot. for Summ. J. at 43. According to Wilber, Berryhill

told her, “[b]ecause of your age, you have a selective memory, and a man would never have that.”2

Id. This statement occurred exactly two months before Wilber’s termination. Id. It is undisputed

that the statement was not witnessed, and that Wilber did not report the statement to human

resources or to a supervisor, including Thomson. Id. at 44; see Reply to Pl.’s Resp. to Def.’s Mot.

for Summ. J. at 9.

 

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Wilber worked under General Manager Joyce Crabb (“Crabb”) from her hiring date through

February 25, 2001, when Crabb was replaced. Def.’s App. at 88. Crabb conducted a written

evaluation of Wilber on March 15, 2001. Id. at 97. She gave Wilber overwhelmingly positive

remarks, the only noticeable criticism appearing in the “Guest Satisfaction/Client Relations”

category, where Crabb remarked, “When Annette is rushed or under pressure she has a tendency to

speak abruptly which has been perceived, at times, as rudeness.” Id. at 94. There is no evidence that

Crabb ever issued Wilber a written reprimand. 

Chris Carlsson (“Carlsson”) replaced Crabb as the General Manager in the spring of 2001,

until he was later replaced in June 2002. Id. at 89. Wilber and Carlsson had numerous work-related

disagreements, and Thomson mediated differences between them on several occassions. Id. There

is no evidence that Carlsson ever issued Wilber a formal evaluation or any type of written

reprimand. 

In October 2001, Thomson sent Wilber to Tharaldson’s corporate headquarters in Fargo,

North Dakota for a four-week training program for potential General Managers. Pl.’s App. at 17-18.

Wilber failed one of her training tests and was told by the head trainer that she had poor coping and

problem-solving skills. Id. at 18. Those in charge of the training program informed Thomson that

they would allow Wilber to pass only if Thomson agreed never to appoint Wilber to General

Manager. Def.’s App. at 89. 

Berryhill became General Manager of the Plano Fairfield Inn in June 2002. Id. When he

arrived, the hotel posted a failing “guest rating,” a protocol Tharaldson uses to track hotel

performance, which is determined by evaluating questionnaires completed by hotel guests. Id. at

89, 100. In October 2002, Berryhill met with key members of the hotel staff, including Wilber, and

 

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presented each with an individually tailored “action plan.” Id. Thomson attended the meeting

between Berryhill and Wilber, and Wilber received and signed her action plan on October 31, 2002.

Pl.’s App. at 22. Wilber states that she signed an action plan, but that the plan Tharaldson attached

as part of its appendix is not the plan she signed, even though it bears her signature. Id. She admits,

however, that the responsibilities enumerated in the action plan she signed were identical to those

shown in the document Tharaldson has attached. Id. at 23. The responsibilities in her action plan

included: “[m]ust work 3 shifts or 24 hours (scheduled) on the front desk alone”; “[p]rovide

back[up] for the front desk agents to [e]nsure quality guest service is practiced and given. Example

of backup would be 11am-7pm on the days not on a scheduled shift”; “[a]lways reflect a

professional and positive attitude towards guests and staff”; “[r]espect ALL other employees and

team members.” Def.’s App. at 104. 

On November 15, 2002, Thomson, Berryhill, and Wilber agreed that Wilber’s front desk

department was to achieve a service score of 70% by December 31, 2002. Pl.’s App. at 26.

According to Tharaldson, both Thomson and Berryhill orally informed Wilber that, “consistent with

the way we treated the other department heads and supervisors,” her failure to achieve this goal

would result in disciplinary action, including possible termination. Def.’s App. at 90, 101. Wilber

counters that she was never told she would suffer disciplinary action of any type if the goal was not

achieved. Pl.’s App. at 26. On December 13, 2002, Berryhill issued Wilber a “coach/counsel form”

stating, among other things, that Wilber “must [e]nsure [the] front desk is operating efficiently” and

“must work as part of a team and effect that attitude towards the staff.” Def.’s App. at 106. The

form further stated that if Wilber did not correct her behavior within 30 days, she could be

 

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Wilber avers that Berryhill rushed her into signing the form and never informed her that she faced possible

suspension if she did not correct her behavior within 30 days. Pl.’s App. at 27-28.

4

Wilber says she placed the schedules in Berryhill’s work mailbox by the December 17, 2002 deadline, that the

schedules were not saved on any computer, and that she attached the only copies to the originals. Pl.’s App. at 31.

According to Tharaldson, Wilber failed to submit the schedules on December 17, 2005, and failed to do so again on a

readjusted deadline of December 18, 2005.

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suspended.3 Id. That same day, on December 13, 2002, Berryhill instructed Wilber to prepare two

possible front desk work schedules and submit them to him by December 17, 2005. Id. at 60, 101,

107; Pl.’s App. at 30. Wilber avers that Berryhill told her, “Because of your age, you have a

selective memory, and a man would never have that,” in response to what he perceived as her failure

to meet the December 17th deadline.4 Pl.’s App. at 43. Two days later, on December 19, 2002,

Berryhill issued Wilber a written “Employee Warning Notice” for her “failure to follow

instructions.” Def.’s App. at 109. The “Expectation for Performance/Activity” portion of the notice

states, “Annette will complete the list and two options of a possible schedule for front desk by

Friday morning[,] December 20, 2002.” Id.

Wilber went on vacation in late December 2002 and into the beginning of January 2003.

Pl.’s App. at 34. Before Wilber left, she posted a proposed front desk schedule allowing her to begin

working earlier each day and to leave by 4:00 p.m.. Id. Berryhill changed the schedule so that

Wilber would begin her workday later and be onsite until at least 8:00 p.m.. Id.; Def.’s App. at 101.

 When she returned from vacation, Wilber confronted Berryhill regarding the schedule changes; she

was upset about working the hours required by his revision and because he did not consult her before

the revision. Pl.’s App. at 34; Def’s App. at 101. According to Wilber, Berryhill had no business

justification for revising the schedule, as there was little front desk activity in the evenings. Pl.’s

App. at 35. 

 

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In January 2003, Wilber approached Thomson and told her she was going to look for another

job. Def.’s App. at 90. Thompson prepared a reference letter stating that Wilber “has always been

willing to help out with extra duties” and “is very dedicated and hard working and would be an asset

to any employer.” Pl.’s App. at 50. 

On January 29, 2003, Marriott issued a “Non-Complaint Items Success Plan” to the Plano

Fairfield Inn. Def.’s App. at 102, 114-118. The plan specified “critical items” the hotel needed to

remedy in order to remain compliant with company standards, and assigned each management

member, including Wilber, responsibility for ensuring that particular tasks were completed. Id.

Tharaldson offers as evidence a copy of the plan showing February 7, 2003 as the deadline for all

management members, including Wilber, to complete their assigned tasks. Id. at 114-118. Wilber

avers that she received a copy of the plan which did not contain completion deadlines for any of her

assigned tasks. Pl.’s App. at 41. She states that she performed all of her assigned tasks within one

week of receiving the plan, and that she most likely did so before February 7, 2003, although she

says no one informed her that this was the completion deadline. Id. Tharaldson does not address

whether Wilber received a copy of the plan mentioning the deadline date; it simply states that Wilber

failed to complete her assigned tasks by February 7, 2003 and had not done so when she was

terminated ten days later. See Def.’s App. at 102.

Wilber received another written “Employer Warning Notice” from Berryhill on February 11,

2003, this time for “[c]arelessness,” after at least $100 was discovered missing from a cash drop

envelope she had verified and deposited in the hotel safe. Def.’s App. at 72,119. Wilber

acknowledges that one of her job responsibilities was to ensure that all cash deposits of money

received by the front desk were accurate. Pl.’s App. at 42.

 

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Wilber was terminated on February 17, 2003 when Berryhill issued her a third “Employee

Warning Notice.” Id.; Def.’s App. at 72, 120. The parties differ as to whether Berryhill or Thomson

decided to terminate her. Pl.’s App. at 46-47; Def.’s App. at 90, 102. The notice states that Wilber

committed violations of “Unsatisfactory Work Quality” and “Failure to Follow Instructions.” Def.’s

App. at 120. The “Employer Statement” portion of the notice states:

Annette was given an action plan to correct items in her departments from our QA

from Marriott. Due date was 2/7/03. Still not have been completed as of 2/17/03.

Failed to complete another list with exact items prior to QA, due date 1/24/03. 

Id. At the time of Wilber’s termination, six out of the ten properties managed by Thomson had

female General Managers. Id. at 90.

Tharaldson states that Wilber’s “poor performance and attitude” was a legitimate, nondiscriminatory reason for her termination. Def.’s Br. in Supp. of Mot. for Summ. J. at 2. It contends

that the summary judgment record is replete with Wilber’s documented performance and attitude

problems spanning many years and many supervisors of all ages and both genders. Moreover, it

proffers a letter, written by a Marriott hotels “Platinum Member,” and sent to Marriott’s Chief

Executive Officer on December 27, 2003, complaining, among other things, that Wilber treated the

customer and his wife “with a total lack of respect” during their stay. See Def.’s App. at 110-12.

Finally, Tharaldson asserts that the record indicates Thomson, and not Berryhill, decided to

terminate Wilber. 

Wilber disputes Tharaldson’s stated reason and supporting evidence. She contends that

Berryhill carried out a “calculated plan” to “get rid” of her by “preparing action plans,

coach/counseling forms, and employee warning notices,” thereby creating a paper trail used “in an

attempt to legitimize” his decision to terminate her, which he actually based on her age and gender.

 

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Pl.’s Br. in Opp. to Def.’s Mot. for Summ. J. at 2-3. Wilber avers that Berryhill altered the October

31, 2002 action plan after she signed it; coaxed her into signing the December 13, 2002

coach/counsel form; and falsified the February 11, 2003 warning notice regarding the cash shortage.

Pl.’s App. at 22-31, 42. She concedes, however, that she never physically saw Berryhill alter a

document. Finally, Wilber states that she was terminated by Berryhill, and not Thomson.

It is undisputed that Wilber was originally replaced by a woman named Tonja Strait

(“Strait”). Pl.’s Original Compl. ¶ 14, 17; Def.’s App. at 90, 102. On April 4, 2003, Tharaldson sent

Strait a letter confirming her position as the Plano Fairfield Inn Assistant General Manager, listing

her start date as May 19, 2003. Def.’s App. at 121-22. Straight resigned from her position on May

20, 2003 after working only 1 day. Pl.’s App. at 49. No summary judgment evidence has been

produced stating Strait’s age as of May 19, 2003, and, likewise, the gender of Strait’s replacement,

as well as whether such person was under the age of 40, or younger than Wilber, at the time of the

replacement. 

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to

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

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact

is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a

motion for summary judgment, the court is required to view all inferences drawn from the factual

 

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record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make

credibility determinations or weigh the evidence” in ruling on motion for summary judgment.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-

55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere

conclusory allegations are not competent summary judgment evidence and thus are insufficient to

defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent

summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied,

513 U.S. 871 (1994). 

The party opposing summary judgment is required to identify specific evidence in the record

and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at

458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence”

to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak

v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992), cert. denied, 506 U.S. 832

(1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws

will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact

issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a

summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to

 

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establish the existence of an element essential to its case and on which it will bear the burden of

proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Analysis

A. Wilber’s ADEA and Title VII Claims

1. The Applicable Standard of Proof

Wilber contends that she suffered discrimination because of her age and gender, resulting

in her intentional wrongful termination, and has brought claims under the ADEA and Title VII. The

ADEA and Title VII prohibit an employer from discriminating against any individual in hiring or

discharge, or with respect to his compensation, terms, conditions, or privileges of employment, on

the basis of age or sex. 29 U.S.C. § 623(a)(1); 42 U.S.C. § 2000(e)-2(a)(1). A plaintiff can prove

a claim of intentional discrimination by direct evidence, circumstantial evidence, or both. Desert

Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003); Russell v. McKinney Hosp. Venture, 235 F.3d 219,

222 (5th Cir. 2000). 

Wilber contends that she has direct and circumstantial evidence of age and gender

discrimination. Tharaldson counters, stating Wilber has not provided direct evidence of either type

of discrimination. It asserts that summary judgment should be granted on both claims, even when

circumstantial evidence is used, arguing Wilber cannot establish a prima facie case of age or gender

discrimination; and even if she can, she has failed to offer sufficient competent summary judgment

evidence suggesting that its reason for terminating her was a pretext for either age or gender

discrimination. The court examines Wilber’s ADEA claim and her Title VII claim using the

appropriate analysis for the direct and circumstantial evidentiary frameworks.

 

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2. Direct Evidence

Tharaldson contends that Wilber has not provided direct evidence of either age or gender

discrimination. “Direct evidence” is “evidence which, if believed, proves the fact [in question]

without inference or presumption.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.

2003) (citations omitted). If an inference is required for the evidence to be probative as to an

employer’s discriminatory animus in terminating the former employee, the evidence is

circumstantial, not direct. Sanstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897-98 (5th Cir. 2002),

cert. denied, 539 U.S. 926 (2003). Direct evidence includes any statement or document which

shows on its face that an improper criterion served as a basis, though not necessarily the basis, for

the adverse employment action. Fabela, 329 F.3d at 415. “When a person or persons with decision

making authority evinces racial animus[,] that may constitute direct evidence of discrimination.”

Jones v. Robinson Prop. Group, ___ F.3d ___, Nos. 04-60688, 04-60924, 2005 WL 2500905, at *4

(5th Cir. Oct. 11, 2005) (citations omitted). “If an employee presents credible direct evidence that

discriminatory animus at least in part motivated, or was a substantial factor in the adverse

employment action, then it becomes the employer’s burden to prove by a preponderance of the

evidence that the same decision would have been made regardless of the discriminatory animus.”

Id. at *3. 

Wilber contends that Berryhill’s statement, “[b]ecause of your age, you have a selective

memory, and a man would never have that,” constitutes direct evidence that discriminatory animus

played a role her termination. She argues that Berryhill’s statement, taken alone, proves that age

or gender discrimination served as a criterion in her termination, as the words show that Berryhill

wanted a younger male to be the Assistant General Manager. Tharaldson counters, reasoning that

 

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even if Berryhill made the statement, it is not direct evidence of discrimination because an inference

is required to connect the statement to the act of termination, which occurred two months later. 

The court has viewed the evidence in the light most favorable to Wilber, drawing all

reasonable inferences from the record in her favor and assuming the truth of the statement, and

determines that an inference is required to find a relation between the discriminatory animus found

in the statement and Wilber’s termination. See Sanstad, 309 F.3d at 898. Berryhill’s words do not

themselves constitute an employment action; they were not spoken during a discussion about a

present, past, or future employment action; they do not reflect why an employment action was made;

nor do they indicate that a future employment action will, or should, take place. Simply put, the

statement, standing alone, is insufficient to support the conclusion that a nexus exists between the

statement and her termination. See Fabela, 329 F.3d at 416. Although the statement is boorish,

uncouth, insensitive, and rude, it does not carry the day to establish direct evidence of age or gender

discrimination in Wilber’s termination. A logical inference is needed to transform such statement

into a determination that the discriminatory animus “at least in part motivated, or was a substantial

factor,” in the decision to terminate. Cf. Jones, 2005 WL 2500905, at *3; see Fabela, 329 F.3d at

415. Accordingly, Wilber has failed to produce direct evidence of age or gender discrimination. 

3. Circumstantial Evidence

Since Wilber has presented no direct evidence of age or gender discrimination, she must rely

on circumstantial evidence. The court must first determine the applicable standard of proof it will

use to evaluate her claims; namely, whether the claims will be analyzed pursuant to the “pretext”

method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the “mixedmotive” circumstantial evidence analysis, called the “modified McDonnell Douglas” approach, set

 

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The court notes that Desert Palace and the subsequent “modified McDonnell Douglas” approach in no way

affects its analysis of a purely pretext case, such as this one. Keelan, 407 F.3d at 340 (citing Raytheon Co. v. Hernandez,

540 U.S. 44, 49 & n.3 (2003)). For a plaintiff to survive summary judgment under the “modified McDonnell approach,

once the burden returns to her, she must offer sufficient evidence to create a genuine issue of material fact that either

(1) the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) 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 alternative). Machinchick v. PB Power, Inc., 398 F.3d 345, 352 (5th Cir. 2005);

Rachid, 376 F.3d at 312 (internal citations and quotations omitted). 

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forth in Desert Palace and subsequent cases. See Desert Palace, 539 U.S. at 101-02; Keelan v.

Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005); Rachid v. Jack in the Box, Inc., 376 F.3d

305, 312 (5th Cir. 2004). Because neither party requests the court to apply a mixed-motive analysis,

and Wilber does not acknowledge that Tharaldson had a legitimate reason for terminating her, the

court will analyze her ADEA and Title VII claims pursuant to the McDonnell Douglas burdenshifting framework.

The McDonnell Douglas framework requires a plaintiff to first establish a prima facie case

of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If plaintiff establishes a prima facie

case, there is a presumption of discrimination, and the burden shifts to the defendant to articulate

some legitimate, nondiscriminatory reason for the challenged employment action. Reeves, 530 U.S.

at 142; McDonnell Douglas, 411 U.S. at 802. If such a showing is made, the presumption dissipates,

and the burden shifts back to the plaintiff, who survives summary judgment if she is able to

demonstrate that the articulated reason was merely a pretext for intentional discrimination.5

McDonnell Douglas, 411 U.S. at 802; Septimus v. University of Houston, 399 F.3d 601, 609 (5th Cir.

2005).

 

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Tharaldson asserts that the “otherwise discharged because of her age” prong of the fourth element is limited

to cases involving evidence of disparate treatment, and cites Okoye v. University of Tex. Houston Health Sci. Ctr., 245

F.3d 507, 512-13 (5th Cir. 2001), a Title VII case. The court disagrees. See Palasota v. Haggar Clothing Co., 342 F.3d

569, 576 (5th Cir. 2003) (holding that requiring plaintiff to use disparate treatment evidence to establish the fourth

element of her ADEA prima facie case “runs counter to Reeves . . . .”). 

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a. ADEA Claim

i. Wilber’s Prima Facie Case

Tharaldson argues that it is entitled to summary judgment on Wilber’s ADEA claim because

she has failed to establish a prima facie case of age discrimination. To establish a prima facie case

of age discrimination, a plaintiff must show that she (1) was discharged; (2) was qualified for the

position; (3) was within the protected class at the time of discharge; and (4) was either replaced i)

by someone outside the protected class, ii) by someone younger, or iii) otherwise discharged because

of her age. Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (citing Rachid, 376

F.3d at 309). Regardless of how much younger her replacement is, a plaintiff in the protected class

may still establish a prima facie case by producing evidence that she was otherwise discharged

because of her age.6 Rachid, 376 F.3d at 309.

Tharaldson contends that Wilber cannot establish a prima facie case of age discrimination

because she has produced no evidence showing whether Strait was under 40 years old, or younger

than Wilber, when she replaced Wilber on May 19, 2003; and, likewise, no evidence exists showing

who became the Assistant General Manager after Strait resigned, much less whether such person

was under the age of 40, or younger than Wilber, at the time of the replacement. Wilber, citing

Davis v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996), contends that she may establish the fourth

element by showing that she was terminated because of her age. Wilber is correct; she need not

demonstrate replacement by someone under 40 or by someone younger than she. See Rachid, 376

 

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7

In Machinchick, the plaintiff’s supervisor wrote an e-mail to human resources stating that the plaintiff has a

“[l]ow motivation to adapt” to change. See Machinchick, 398 F.3d at 353. In Rachid, the plaintiff’s supervisor made

the statement, “[A]nd don’t forget it, [Rachid], you’re too old, too.” See Rachid, 376 F.3d at 315. 

Memorandum Opinion and Order - Page 16

F.3d at 315. Since the record is devoid of evidence showing Strait’s age as well as the age of Strait’s

replacement, under Reeves, Wilber must show that she was otherwise discharged because of her age.

See Reeves, 530 U.S. at 142; Rachid, 376 F.3d at 309. 

Machinchick provides guidance as to what evidence may be used to show that a plaintiff was

“otherwise discharged because of [her] age” in establishing the fourth element of a prima facie case

of wrongful termination based on age discrimination. See Machinchick, 398 F.3d at 353-54. There,

the court determined that the plaintiff had established the fourth element by proffering evidence

including: (1) an e-mail discussing the company’s intention to hire younger engineers and designers;

(2) a business plan expressing the goal of hiring employees with “21st Century” mindsets; (3)

several age-stereotyping remarks; (4) disparate treatment of younger employees; and (5) inquiries

about when the plaintiff planned to retire. See id. at 353-54. Although the plaintiff presented

additional evidence raising fact issues, the court determined that the workplace remarks themselves

gave “rise to an inference that Machinchick was terminated because of his age.” Id. at 353.

Regarding the ageist remarks, the court made clear that “[p]urely indirect references to an

employee’s age, such as comments that an employee needed to look ‘sharp’ if he were going to seek

a new job, and that he was unwilling to ‘adapt’ to change, can support an inference of age

discrimination.”7 Id. at 353 (citations omitted). The Fifth Circuit commented on these same indirect

references in Rachid, a previous decision, concluding that the references were “rather nebulous” but

nevertheless had been found sufficient for a plaintiff to avoid summary judgment. See Rachid, 376

 

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8

Tharaldson has articulated one reason for her discharge: “poor performance and attitude.” It has not bifurcated

its presentation of evidence into categories of “poor performance” and “poor attitude.” Moreover, Tharaldson cites

Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 296 (5th Cir. 1992), for the proposition that “poor job

performance” is a legitimate, nondiscriminatory reason. Accordingly, the court determines that Tharaldson’s articulated

reason is “poor job performance” and will consider any evidence Tharaldson offers as to Wilber’s “poor attitude” in

terms of its effect on her job performance. 

Memorandum Opinion and Order - Page 17

F.3d at 315 (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1506-07 (5th Cir. 1988)).

 

In this case, Wilber provides evidence of a workplace remark capable of raising a reasonable

inference that she was otherwise discharged because of her age. Berryhill’s statement, “[b]ecause

of your age, you have a selective memory, and a man would never have that,” is not nebulous; it is

also stronger than the statement in Machinchick, e.g., 398 F.3d at 353. Berryhill’s statement is a

“substantially more egregious” remark akin to the statement in Rachid, and raises a fact issue

concerning potential age discrimination. Because Wilber has raised an issue of material fact as to

whether she was otherwise discharged because of her age, she establishes a prima facie case of age

discrimination. See Sandstad, 309 F.3d at 899.

ii. Tharaldson’s Legitimate, Nondiscriminatory Reason

As Wilber’s prima facie case has been established, there is a presumption of age

discrimination, and the burden shifts to Tharaldson to articulate some legitimate, nondiscriminatory

reason for her termination. McDonnell Douglas, 411 U.S. at 802-804; Russell, 235 F.3d at 222.

Tharaldson asserts that it terminated Wilber for her “repeated performance and attitude problems.”

See Def.’s Br. in Supp. of Mot. for Summ. J. at 16. Poor job performance is a legitimate,

nondiscriminatory reason to terminate an employee.8

 Little v. Republic Ref. Co., Ltd., 924 F.2d 93,

96 (5th Cir. 1991). Tharaldson has thus met its burden, and now the burden shifts back to Wilber to

demonstrate that Tharaldson’s articulated reason is a pretext for intentional discrimination. 

 

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Memorandum Opinion and Order - Page 18

iii. Pretext Analysis

Wilber contends that Tharaldson’s proffered reason for terminating her is a pretext. A

“plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the

employer’s discriminatory animus or the falsity of the employer’s legitimate nondiscriminatory

explanation.” Sandstad, 309 F.3d at 897. “Pretext-plus” is not required to support an inference of

discrimination. Russell, 235 F.3d at 223. “[A] plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated,” and may therefore be enough to prevent

summary judgment. See Reeves, 530 U.S. at 148, Sandstad, 309 F.3d at 897. This showing may not

be enough to prevent summary judgment, however, if “the record conclusively revealed some other,

nondiscriminatory reason for the employer’s decision, or the plaintiff created only a weak issue of

fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted

independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148. 

The “establishment of a prima facie case of age discrimination and evidence casting doubt

on the veracity of the employer’s explanation is sufficient” for a plaintiff to survive summary

judgment on an ADEA claim. See Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.

2003); Machinchick, 398 F.3d at 350-51. In support of her contention that a pretext exists, Wilber

offers a reference letter Thomson wrote on her behalf in January 2003, the month preceding the

February 17, 2003 termination. In the letter, Thomson states Wilber “has always been willing to

help out with extra duties,” and is “very dedicated and hard working and would be an asset to any

employer.” Pl.’s App. at 50. Although Tharaldson admits that Thomson wrote the letter, it offers

 

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Memorandum Opinion and Order - Page 19

no evidence or argument explaining why Thomson provided Wilber such a favorable reference if,

in fact, she did not deserve one. A reasonable jury could thus conclude that although Thomson

approved and participated in the decision to discharge Wilber one month after writing the letter, she

did not do so because Wilber had performance and attitude problems. See Russell, 235 F.3d at 224.

Wilber also offers a guest comment evaluation dated February 2, 2003, just 15 days before

she was terminated. The guest wrote, “[a]ll staff were incredibly nice!! Annette [Wilber] was great

- she remembered my name - it felt like I was coming home each evening.” Pl.’s App. at 51.

Tharaldson has emphasized to the court the tremendous weight is assigns guest satisfaction in

determining how its hotels and employees perform. In light of Tharalson’s emphasis, and the praise

Wilber received from the guest, the court determines that a reasonable jury could find that the

guest’s remarks conflict directly with Tharaldson’s assertion that Wilber was terminated because

of job performance and attitude problems. 

Additionally, Wilber offers the written evaluation Crabb conducted on March 15, 2001,

which contains the statement, “Annette Wilber is one of the finest employees I have ever had the

privilege to work with.” Id. at 52-56. The court has considered this evaluation insofar as it supports

Wilber’s averment that Berryhill is the only General Manager, of the three who have supervised her,

to discipline her. Wilber also offers a General Manager Training Evaluation dated October 26,

2001, confirming her completion and overall passing grade of the four-week general manager

training program conducted in Fargo, North Dakota. Id. at 57-58. The court determines that

evidence submitted by both parties regarding Wilber’s performance at this training program is of

little moment, since the program, which occurred in October 2001, and her termination, which

occurred on February 17, 2003, are not proximate in time.

 

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9

A plaintiff may offer a workplace remark as additional evidence of age discrimination, as pretext, or both.

Russell, 235 F.3d at 225 n.9. 

10Thomson’s declaration states, “Mr. Berryhill and I discussed the ongoing problems we were having with Ms.

Wilber, and I approved and participated in the decision to discharge her.” Def.’s App. at 90. Similarly, Berryhill’s

declaration states, “I consulted with Ms. Thompson, and she approved the decision to terminate Ms. Wilber’s

employment.” Id. at 100. 

Memorandum Opinion and Order - Page 20

Finally, Wilber offers Berryhill’s statement, “[b]ecause of your age, you have a selective

memory, and a man would never have that,” as evidence of pretext.9

 Pl.’s App. at 43. “Oral

statements constitute evidence of discrimination if [1] they indicate age-based animus and [2] the

speaker is principally responsible for the plaintiff’s firing.” Sanstad, 309 F.3d at 899 (citations

omitted). A reasonable jury could conclude that Berryhill exhibited discriminatory animus when

he made the statement. See Machinchick, 398 F.3d at 353. As to the second inquiry, it is

insignificant whether Berryhill or Thomson made the official decision to terminate Wilber. Courts

do not “blindly accept the titular decisionmaker as the true decisionmaker.” Russell, 235 F.3d at 227

(holding that courts look “to who actually made the decision or caused the decision to be made, not

simply to who officially made the decision”). Berryhill directly supervised Wilber, issued all three

“Employer Warning Notices” to her, and his name appears on the notice which terminated her

employment. Def.’s App. at 120. Moreover, written declarations provided by Thomson and

Berryhill suggest that Berrryhill discussed Wilber’s employment status with Thomson before the

termination occurred.10 Accordingly, it is possible for a jury to find that Berryhill “was motivated

by age-based animus and was principally responsible for [Wilber’s] firing” regardless of whether

Berryhill or Thomson made the official termination decision. See Russell, 235 F.3d at 228 (quoting

Reeves, 530 U.S. at 151). After Reeves, so long as remarks are not the only evidence of pretext, they

 

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Memorandum Opinion and Order - Page 21

are probative of discriminatory intent. Palasota, 342 F.3d at 577. As demonstrated, the statement

made by Berryhill is not the only evidence of pretext Wilber offers. 

Although Defendant contests Wilber’s ADEA claim, it has not offered evidence of such

magnitude that a reasonable jury could only find in its favor. See Russell, 235 F.3d at 219. It is

clear that Berryhill issued all three employer warning notices after December 17, 2002, the date he

made the statement. In fact, the time period in which Berryhill issued Wilber the coach/counseling

form, as well as these notices, is essentially the same time frame between the date Berryhill made

the statement and the date of Wilber’s termination. The court will allow a jury to decide whether

any connection exists between Berryhill’s disciplining Wilber and the statement she avers that he

made. See Reeves, 530 U.S. at 147; Russell, 235 F.3d 223 n.4. 

The court will not consider the letter Tharaldson offers. This letter, dated December 27,

2002, was written by Vincent D’Onofrio, a Marriott hotels “Platinum Member,” who stayed at the

Plano Fairfield Inn. Def.’s App. at 110-112. D’Onofrio lodged many complaints about his stay in

the letter, including a complaint that Wilber treated him and his wife “with a total lack of respect.”

Id. The court has examined notes taken by Berryhill during a January 23, 2003 meeting with him,

Wilber, and Thomson. A portion of these notes states, “Write ups - Donofrio issue . . . didn’t write

you up - I think that was unfair to everyone else.” Id. at 113. Having reviewed these notes, the court

will not permit Tharaldson to use the letter as evidence of Wilber’s performance and attitude

problems when Berryhill, her own supervisor, apparently believed the letter to be an unfair critique

of the Plano Fairfield Inn and its employees. Accordingly, it has disregarded the letter in making

all summary judgment determinations. 

 

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Tharaldson also proffers a copy of Marriott’s “Non-Compliant Success Plan,” issued January

29, 2003. See Def.’s App. at 114-118. Wilber avers that she received a copy of the plan which did

not mention the February 7, 2003 completion deadline for any of her assigned tasks; and, moreover,

that she performed all of her assignments within one week of receiving her copy, and most likely

did so before February 7, 2003. Pl.’s App. at 41. She states that she made handwritten notations

recording the date she completed each task on her copy, and placed the copy in Berryhill’s office

mailbox. Id. at 40. Because this is the summary judgment stage, the court will take as true that

Wilber received a copy of the plan which did not mention the February 7, 2003 deadline. See

Matsushita Elec. Indus. Co., 475 U.S. at 587. 

Tharaldson’s assertion that Wilber was fired by Thomson, a female who is two years younger

than she, is relevant and appropriate for the jury to consider, but “is certainly not dispositive.” See

Russell, 235 F.3d at 229 (quoting Reeves, 530 U.S. at 153). Likewise, evidence that, at the time of

Wilber’s termination, six out of the ten properties managed by Thomson had female managers, does

not qualify as “abundant and uncontroverted independent evidence that no discrimination had

occurred.” See Reeves, 530 U.S. at 148. This evidence might be pertinent had Wilber asserted

evidence of disparate treatment, but it does little to counter evidence in the record suggesting that

Tharaldson’s proffered explanation is a pretext. See Machinchick, 398 F.3d at 353 n.26. Moreover,

the court has examined the February 11, 2003 employer warning notice Berryhill issued to Wilber

for “[c]arelessness” after at least $100 was discovered missing from a cash drop envelope she had

verified and deposited in the hotel safe. The court recognizes that Tharaldson points to the missing

money as an example of Wilber’s poor job performance, but it believes that the total picture should

be presented to a factfinder for determination whether Tharaldson was actually motivated by

 

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Memorandum Opinion and Order - Page 23

Wilber’s job performance, or because of some discriminatory animus. A jury could find the missing

money to be insignificant, or could find that the missing money, alone or with other evidence,

justified the decision to terminate Wilber. 

The court has an additional concern, which is the December 18, 2002 employer warning

notice that Berryhill issued to Wilber one day after making the statement. The words “[s]ee attached

page” appear in the “Employer Statement” portion of the notice, yet the attached page is not

included in Tharaldson’s Appendix. See Def.’s App. at 109. The only conclusions the court may

draw are that the attached page was inadvertently omitted, or the page contained information adverse

to Tharaldson. In any event, the omission of the attached page does not further Tharaldson’s

interest. 

 For the reasons stated herein, Wilber has raised a genuine issue of material fact with respect

to whether Tharaldson’s stated reason for terminating her was a pretext for intentional age

discrimination. Berryhill’s age-related statement, along with the other evidence of pretext offered,

is enough for Wilber to survive summary judgment on her ADEA claim. See Palasota, 342 F.3d

at 578. Accordingly, summary judgment is not appropriate on Wilber’s ADEA claim. 

b. Title VII Claim

i. Wilber’s Prima Facie Case

Tharaldson argues that it is entitled to summary judgment on Wilber’s Title VII claim

because she has failed to establish a prima facie case of gender discrimination. To establish a prima

facie case of gender discrimination, Wilber must show that she (1) is a member of the protected

class; (2) was qualified for her position; (3) was subjected to an adverse employment action; and (4)

 

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11The party opposing summary judgment may not rest upon mere allegations. Fed. R. Civ. P. 56(e). Moreover,

an unverified complaint does not constitute competent summary judgment evidence. See Diamond Offshore Co. v. A&B

Builders, Inc., 302 F.3d 531, 545 (5th Cir. 2002) (citations omitted). 

12Wilber could have raised a fact issue as to the fourth element of her prima facie case by submitting evidence

that a male replaced Strait as the Assistant General Manager of the Plano Fairfield Inn. She did not do so. 

Memorandum Opinion and Order - Page 24

was replaced by someone outside the protected class, or that similarly situated persons were treated

more favorably. Septimus, 399 F.3d at 610 (citations omitted). 

Tharaldson, citing to Price v. Federal Express Corp., 283 F.3d 715, 720 (5th Cir. 2002),

contends that Wilber cannot establish a prima facie case of wrongful discharge because she cannot

show that the Assistant General Manager position was filled by a male. It points to undisputed

evidence showing Wilber was originally replaced by Strait, a woman, and argues that no competent

summary judgment evidence exists indicating the gender of Strait’s replacement. It also asserts that

Wilber has failed to offer evidence of disparate treatment. Wilber counters, stating in her unverified

complaint that “After terminating Wilber, Defendant replaced her with a female that was replaced

by a male within no more than two weeks.”11 Pl.’s Original Compl. ¶ 14. Moreover, she contends

that Berryhill’s statement is sufficient summary judgment evidence of discriminatory intent to raise

a fact issue that her gender was a motivating factor in the decision to terminate her.12 

Although there are a number of procedural similarities between Title VII and ADEA claims,

one noticeable difference is how a plaintiff may establish the fourth element of a prima facie case

of gender or age discrimination. As discussed previously, a plaintiff asserting an ADEA claim may

establish the fourth element by showing that she was i) replaced by someone outside the protected

class, ii) replaced by someone younger, or iii) otherwise discharged because of her age.

Machinchick, 398 F.3d at 350 (citing Rachid, 376 F.3d at 309). Title VII case law makes clear that

a plaintiff’s inability to show that she was replaced by someone outside of her protected class does

 

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13See also Byers v. The Dallas Morning News, 209 F.3d 419, 426 (5th Cir. 2000) (holding that replacement by

someone within the protected class is not outcome determinative, but is still a material consideration as to whether an

employer actually possessed the alleged discriminatory intent). Wilber does not mention Williams, Hornsby, or Byers

anywhere in her briefing. 

14Wheeler was a wrongful termination case based on race brought pursuant to 42 U.S.C. § 1981. A plaintiff’s

§ 1981 claim is analyzed under the same evidentiary standard and same burden-shifting approach as a Title VII claim.

Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2

(5th Cir. 1999). In Wheeler, the court held that Appellants, who were terminated white employees, could not establish

a prima facie case of race discrimination because they failed to show: (1) that they were replaced by non-white

employees; or (2) that the evidence offered as disparate treatment demonstrated that their discharge was the result of

being treated differently than non-white similarly situated employees. See Wheeler, 415 F.3d at 406. 

Memorandum Opinion and Order - Page 25

not necessarily mean she has failed to establish a prima facie case of gender discrimination. See

Williams v. Trader Publ’g Co., 218 F.3d 481, 485 (5th Cir. 2000); Hornsby v. Conoco, Inc, 777 F.2d

243, 246-47 (5th Cir. 1985).13 The court, however, has found no authority allowing a Title VII

plaintiff to establish her prima facie case by showing that she was “otherwise discharged because

of her gender.”

Title VII cases indicate that a plaintiff who cannot show she was replaced by someone

outside of her protected class is limited to presenting evidence of disparate treatment. See Septimus,

399 F.3d at 609; Byers v. The Dallas Morning News, 209 F.3d 419, 427 (5th Cir. 2000); Okoye v.

University of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001). The Fifth Circuit

recently discussed the available methods for establishing the fourth element in Wheeler v. BL

Development Corp., 415 F.3d 399, 405 (5th Cir. 2005).14 The court in Wheeler held that a plaintiff

may establish the fourth element by “demonstrating either that [s]he was replaced by someone

outside the protected class or that other similarly situated employees outside the protected class were

treated more favorably.” Id. at 405 (citing Okoye, 245 F.3d at 512-13). Regarding the disparate

treatment method, the court held that “a plaintiff must demonstrate that a ‘similarly situated’

 

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Memorandum Opinion and Order - Page 26

employee under ‘nearly identical’ circumstances, was treated differently.” Id. (citing Mayberry v.

Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)).

Having carefully reviewed the summary judgment record and drawn all inferences in the

light most favorable to Wilber, the court determines that Wilber has failed to establish a prima facie

case of gender discrimination. Although Wilber satisfies the first three elements, she cannot

establish the fourth. It is undisputed that Strait, a woman, replaced Wilber, and Wilber has failed

to present any competent summary judgment evidence suggesting that a male replaced Strait. Had

Wilber done so, she might have raised a fact issue concerning whether Tharaldson’s hiring Strait

was a subterfuge for gender discrimination. Instead, Wilber offers a “Separation Notice” showing

that Strait resigned as the Assistant General Manager of the Plano Fairfield Inn after working only

one day. Pl.’s App. at 49. This notice says nothing as to whom became, or was to become, the

Assistant General Manager after Strait’s resignation. 

The court has also scoured Wilber’s deposition transcript in its entirety. Nowhere does she

give testimony even suggesting that a male replaced either her or Strait; instead, she states “[I] do

not know that I definitely was replaced by a female employee. I don’t know who and when I was

replaced, but I feel that by now, someone has taken my position.” Def.’s App. at 78. Such

testimony is at most a subjective belief, and such belief cannot be the basis for raising a genuine

issue of material fact regarding discrimination. See Roberson v. Alltell Info. Servs., 373 F.3d 647,

654 (5th Cir. 2004); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002).

Moreover, Wilber has not argued disparate treatment and has put forth no evidence

suggesting such treatment existed. Wilber instead supposes that she meets the fourth element merely

because she has introduced Berryhill’s statement. By doing so, she mistakenly assumes that the

 

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15Likewise, the court in Palasota held that the plaintiff was not required to offer either evidence that he was

replaced by someone younger, or evidence of disparate treatment. See Palasota, 342 F.3d at 576. 

Memorandum Opinion and Order - Page 27

court will allow her to establish a prima facie case of gender discrimination by introducing evidence

that she was otherwise discriminated against because of her gender, without introducing either (1)

evidence that she was replaced by a male; or (2) evidence of disparate treatment. Cf. Wheeler, 415

F.3d at 406; see Byers, 209 F.3d at 427.

The court has found no Fifth Circuit precedent enabling a plaintiff asserting a Title VII claim

to use a workplace remark as her sole evidence of establishing the fourth element of a prima facie

case. The court notes that ADEA plaintiffs may use the “otherwise discriminated against because

of age” method to establish the fourth element, and, as consequence, the court in Machinchick held

that the age stereotyping remarks offered by plaintiff gave rise to an inference that the plaintiff was

terminated was because of his age.15 See Machinchick, 398 F.3d at 350, 353. Because case law

makes clear that a Title VII plaintiff has two methods of showing the fourth element, and there is

no Title VII case paralleling Machinchick or Palasota, the Fifth Circuit has declined to include an

“otherwise discriminated against because of gender” method as a means to establish a prima facie

case. See Wheeler, 415 F.3d at 405; Byers, 209 F.3d at 427. In any event, Wilber is wrong in

presuming that she may establish her prima facie case without presenting either evidence showing

that she was replaced by a male, or evidence of disparate treatment, as such a presentation is material

to establishing a presumption of gender discrimination. See Wheeler, 415 F.3d at 405; Septimus,

399 F.3d at 609; Byers, 209 F.3d at 427. 

For the reasons stated herein, Wilber has failed to raise a genuine issue of material fact that

she, or Strait, was replaced by a male, or that her discharge was the result of being treated differently

than similarly situated male employees. She therefore cannot establish a prima facie case of gender

 

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discrimination. Under McDonnell Douglas, the court need not reach the second or third burdenshifting steps unless the requisite prima facie case is established. Accordingly, judgment as a matter

of law on Wilber’s Title VII claim is appropriate. 

B. Wilber’s “Claim” Under Chapter 103 of the Texas Labor Code

Tharaldson argues that it is entitled to summary judgment on Wilber’s “claim” under Chapter

103 of the Texas Labor Code. The Chapter is entitled “Disclosure by Employer of Information

Regarding Certain Employees or Former Employees.” See generally Tex. Lab. Code Ann. §

103.001-.005 (Vernon 2005). Tharaldson contends that Chapter 103 does not create a private cause

of action, but instead provides civil immunity for an employer who discloses information about a

current or former employee. Wilber asserted this “claim” in her Original Complaint, but has not

addressed it in her response or offered evidence in support of the claim. Tharaldson’s arguments

concerning the claim thus stand uncontroverted. The court therefore determines that Wilber has

abandoned this claim, and that it is no longer before the court.

Alternatively, the court agrees with Tharaldson that Wilber’s “claim” brought pursuant to

Chapter 103 of the Texas Labor Code fails to state a claim upon which relief can be granted, as

Chapter 103 does not create a private cause of action. Section 103.004(a), titled “Immunity from

Civil Liability,” provides as follows: 

(a) An employer who discloses information about a current or former employee

under Section 103.003 is immune from civil liability for that disclosure or any

damages proximately caused by that disclosure unless it is proven by clear and

convincing evidence that the information disclosed was known by that employer to

be false at the time the disclosure was made or that the disclosure was made with

malice or in reckless disregard for the truth or falsity of the information disclosed.

For purposes of this subsection, “known” means actual knowledge based on

information relating to the employee, including any information maintained in a file

by the employer on that employee.

 

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Tex. Lab. Code Ann. § 103.004. Chapter 103 is a type of qualified immunity applicable to

employers who disclose information about a current or former employee’s job performance to that

employee’s prospective employer upon the request of the employee or the prospective employer.

Tex. Lab. Code Ann. § 103.003(a). Therefore, the Chapter applies to a cause of action, but is not

a cause of action itself. See Tex. Lab. Code Ann. § 103.001; Southwestern Bell Tel. Co. v. Garza,

164 S.W.3d 607, 625 n.51 (Tex. 2004). 

Wilber has produced no evidence showing that Tharaldson made a specific statement to any

prospective employer regarding her job performance at the Plano Fairfield Inn. The only evidence

of record concerning Tharaldson’s communications with Wilber’s prospective employers is the

reference letter Thomson wrote, and this letter provided Wilber a favorable reference. Therefore,

to the extent that Chapter 103 is at all applicable to this case, the court determines that Wilber has

failed to prove by clear and convincing evidence, or to raise a genuine issue of material fact, that any

information disclosed was known by Tharaldson to be false at the time of disclosure, or that the

disclosure was made with malice or in reckless disregard for the truth or falsity of the information

disclosed. See Tex. Lab. Code Ann. § 103.004(a). Accordingly, Tharaldson is entitled to judgment

as a matter of law regarding Wilber’s “claim” under Chapter 103 of the Texas Labor Code. 

IV. Plaintiff’s Objections to Defendant’s Summary Judgment Evidence

Wilber has filed various objections to Tharaldson’s summary judgment evidence. See Pl.’s

Br. in Opp’n to Def.’s Mot. For Summ. J. at 3-5. The court previously set forth the evidentiary

standard upon which it relied in determining Tharaldson’s Motion for Summary Judgment. See

supra at 9-11. The court did not consider any evidence that did not meet this standard. In other

words, evidence that did not fall within this standard was not considered and played no part in this

 

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Memorandum Opinion and Order - Page 30

decision. Likewise, the court did not rely on any evidence that is precluded by the rules of evidence

or other applicable law. Moreover, as Tharaldson is entitled to summary judgment on Wilber’s Title

VII claim and Chapter 103 “claim” because Wilber failed to come forward with competent summary

judgment evidence raising a genuine issue of material fact on either claim, Tharaldson’s evidence

is of no moment. Further, as the court determined that summary judgment is not appropriate

concerning Wilber’s ADEA claim, Wilber’s objections pertaining to this claim are moot. 

V. Miscellaneous

A. Conduct of the Parties

The parties unnecessarily prolonged the court’s disposition of Tharaldson’s motion for

summary judgment by the manner in which they briefed their arguments. Wilber’s brief was, at

best, skeletal, similar to the bullet points presented during a Power-Point presentation. As we all

know, such presentations are truncated, and are not proper tools for providing the underlying

substance needed for complex analysis. For example, Wilber made the conclusory statement

“Charles Berryhill’s paper trail of negativity against Annette has no basis in fact,” and then

referenced 14 sections of her deposition she considered applicable, without articulating the precise

manner in which the cited portions supported her claim. The court essentially had to perform a

blow-by-blow account of the evidence in reaching its decision, which could have been avoided if

Wilber had done more than merely cite to pages in her deposition. 

The court’s criticism is not limited to Wilber. Tharaldson made certain statements in its

briefing that were overgeneralizations. For example, one would believe from reading Tharaldson’s

brief that Mr. D’Onofrio wrote his letter solely to complain about Wilber, when, in actuality, the

letter lodges complaints concerning numerous problems he experienced at the Plano Fairfield Inn.

 

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Tharaldson also unnecessarily burdened the record by submitting Wilber’s entire deposition in its

Appendix, which is in clear violation of paragraph 3 of the court’s Amended Scheduling Order, filed

September 13, 2004. 

These actions by the parties have caused the court to unnecessarily consume scarce judicial

resources. If this case proceeds to trial, the court will discuss in detail with the parties what will be

expected of them to ensure that trial proceeds smoothly.

B. Motion for Independent Mental Examination of Plaintiff

The court notes that Tharaldson filed a Motion for Independent Mental Examination of

Plaintiff on May 16, 2005, to which Wilber filed a response on June 1, 2005. In its oversight, the

court failed to refer the motion to a United States magistrate judge for hearing, if necessary, and

determination. The court apologizes for this oversight. Tharaldson, upon receipt of this opinion and

order, is directed to notify the court immediately in writing whether it still desires an independent

medical examination of Wilber, and must also notify the court whether Wilber opposes such

examination. The court will take action as necessary based upon the information Tharaldson

provides. 

VI. Conclusion

For the reasons stated herein, the court concludes that genuine issues of material fact exist

with respect to Wilber’s ADEA claim; that genuine issues of material fact do not exist with respect

to Wilber’s Title VII claim; and that genuine issues of material fact do not exist with respect to her

“claim” brought under Chapter 103 of the Texas Labor Code. Accordingly, the court grants in part

and denies in part Tharaldson’s Motion for Summary Judgment. Wilber’s age discrimination claim

brought under the ADEA will proceed to trial; her gender discrimination claim brought under Title

 

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VII and her “claim” under Chapter 103 are dismissed with prejudice. The court overrules as moot

Wilber’s Objections to Defendant’s Evidence. 

It is so ordered this 10th day of November, 2005.

_________________________________

Sam A. Lindsay

United States District Judge

 

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