1The court recounts the evidence in a light favorable to Smith

as the summary judgment nonmovant and draws all reasonable

inferences in his favor. E.g., U.S. Bank Nat’l Ass’n v. Safeguard

Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater,

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AL M. SMITH, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1123-D

VS. §

 §

HEWLETT-PACKARD COMPANY, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this action alleging race discrimination based on

plaintiff’s discharge as part of a workforce reduction (“WFR”), the

court must decide whether plaintiff has presented evidence that

would permit a reasonable jury to find that his former employer’s

reason for including him in the WFR is pretextual. Concluding that

plaintiff has not met this burden, the court grants defendant’s

motion for summary judgment and dismisses this case with prejudice.

I

Plaintiff Al M. Smith (“Smith”) sues his former employer,

Hewlett-Packard Company (“HP”), under Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.

§ 1981, alleging that HP selected him for inclusion in a WFR based

on his African-American race. Smith worked at HP as a Customer

Engineer in the Customer Support Department.1 Smith provided

 

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J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)).

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technical support to HP customers by performing installations,

maintenance, and repairs on equipment at customer worksites.

Gwendolyn Conder (“Conder”) became Smith’s District Manager in

November 2003. In April 2004, as part of a cost reduction plan, HP

directed Conder and other District Managers to assess their work

groups and recommend employees for inclusion in a WFR. Managers

were asked to rate their employees in a number of job-related

competencies and skills. Of all Conder’s Customer Engineers in the

Dallas-Fort Worth area whom she supervised, she ranked Smith the

lowest. Conder evaluated her employees using a “1” to “5” scale,

with “5” being the highest. Smith did not receive any ratings of

“4” (demonstrating the capacity to a great extent) or of “5”

(demonstrating the capacity to a very great extent). All but one

of the Customer Engineers who ranked above Smith received at least

one “4” on the assessment. Of the Customer Engineers whom Conder

rated, two in the top four were African-American. Although Smith

had the lowest ranking in Conder’s assessment, she selected Clay

Baxley (“Baxley”), a Caucasian who worked in Tyler, Texas, to be

included in the April 2004 WFR. Baxley was one of the two lowest

ranked employees on Conder’s April 2004 assessment, and, in the

months before April 2004, he had lost a major customer contract.

HP again undertook cost reduction efforts later in 2004,

resulting in the reduction of Customer Engineer positions in

 

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October. Conder recommended that Smith and a Caucasian employee be

included in the WFR from her division. Her stated reasons for

selecting Smith included that he had been the lowest rated Customer

Engineer on her team in Dallas-Fort Worth. Conder also pointed to

recent performance problems that she had experienced with Smith,

including customer and employee complaints about him and an

incident involving HP customer Southwestern Bell Communications

(“SBC”). Conder believed that Smith’s customer relations,

interpersonal, and team-working skills were the lowest in her work

group, and that his involvement in the SBC incident exhibited

insubordination, a lack of professionalism, and poor judgment.

Smith was one of twelve Customer Engineers selected for termination

as part of the October 2004 WFR, seven of whom were Caucasian.

Following his discharge, Smith filed this lawsuit, alleging

race discrimination under Title VII and § 1981. HP moves for

summary judgment, presenting the dispositive question whether a

reasonable jury could find that HP’s proffered legitimate,

nondiscriminatory reason for terminating his employment——that he

was discharged as part of a WFR——is pretextual.

II

A

Under Title VII, it is “an unlawful employment practice for an

employer . . . to discharge any individual . . . because of such

individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Section 1981

 

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guarantees “[a]ll persons within the jurisdiction of the United

States . . . the same right . . . to make and enforce contracts”

regardless of race. 42 U.S.C. § 1981(a). “Claims of racial

discrimination brought under § 1981 are governed by the same

evidentiary framework applicable to claims of employment

discrimination brought under Title VII.” LaPierre v. Benson

Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996) (citing

Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)).

Because HP will not have the burden of proof at trial on

Smith’s claims, it can meet its summary judgment obligation by

pointing the court to the absence of evidence to support them. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once HP does

so, Smith must then go beyond his pleadings and designate specific

facts showing there is a genuine issue for trial. See id. at 324;

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

banc) (per curiam). An issue is genuine “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment is mandatory if Smith fails to meet this burden.

Little, 37 F.3d at 1076. 

In the context of a Title VII/§ 1981 race discrimination

claim, Smith must present sufficient direct or circumstantial

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

his race was a motivating factor in the decision to discharge him.

 

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- 5 -

See, e.g., Roberson v. Alltel Info. Servs., 373 F.3d 647, 652 (5th

Cir. 2004) (addressing Title VII claims for race, color, religion,

sex, or national origin discrimination). “Direct evidence is

evidence that, if believed, proves the fact of discriminatory

animus without inference or presumption.” West v. Nabors Drilling

USA, Inc., 330 F.3d 379, 384 n.3. (5th Cir. 2003) (Fitzwater, J.)

(age discrimination case) (quoting Sandstad v. CB Richard Ellis,

Inc., 309 F.3d 893, 897 (5th Cir. 2002)). A plaintiff who offers

“sufficient direct evidence of intentional discrimination should

prevail, just as in any other civil case where a plaintiff meets

his burden.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40

(5th Cir. 1996) (citing Portis v. First Nat’l Bank of New Albany,

Miss., 34 F.3d 325, 328 n.6 (5th Cir. 1994)). Because Smith has

not adduced direct proof of race discrimination, he must rely on

circumstantial evidence.

If direct evidence is unavailable, Smith can prove

discrimination using the “modified McDonnell Douglas approach.”

Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)

(age discrimination case). As modified, McDonnell Douglas consists

of three steps. First, Smith must establish a prima facie case of

discrimination, which “creates a presumption that [HP] unlawfully

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

Burdine, 450 U.S. 248, 254 (1981). The burden then shifts to HP to

articulate a legitimate, nondiscriminatory reason for discharging

 

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- 6 -

him. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

HP’s burden is one of production, not proof, and involves no

credibility assessments. See, e.g., West, 330 F.3d at 385.

Finally, if HP meets its production burden, then Smith may proceed

under one of two alternatives: the pretext alternative or the

mixed-motives alternative. See Rachid, 376 F.3d at 312. Under the

pretext alternative, Smith must “offer sufficient evidence to

create a genuine issue of material fact . . . that [HP’s] reason is

not true, but is instead a pretext for discrimination.” Id.

(internal quotations omitted). Under the mixed-motives

alternative, Smith must offer sufficient evidence to create a

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

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

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

quotations omitted).

B

 The parties do not dispute that Smith has established a prima

facie case of discrimination and that HP has a articulated

legitimate, nondiscriminatory reason for terminating his

employment. Consequently, the court will not discuss the first and

second elements of the McDonnell Douglas test, but will instead

focus on the third element: pretext. Smith must produce evidence

that is sufficient for a reasonable trier of fact to find either

that HP’s proffered explanation is unworthy of credence or that a

 

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- 7 -

discriminatory reason more likely motivated HP’s decision to

terminate him. See Burdine, 450 U.S. at 256. Even without direct

evidence of race-motived discrimination, if Smith can present

sufficient evidence to permit a reasonable jury to find that HP’s

proffered legitimate, nondiscriminatory reason is unworthy of

credence, HP’s motion for summary judgment must be denied.

III

HP has introduced evidence of one overarching legitimate,

nondiscriminatory reason for terminating Smith’s employment——that

he was discharged as part of the October 2004 WFR. Within that

reason, however, it essentially relies on three subsidiary grounds

that it says prompted Conder to recommend that Smith be included in

the WFR based on her assessment that he was the weakest member of

her work group. First, Smith had been the lowest rated Customer

Engineer on Conder’s team in Dallas-Fort Worth in the assessment

that she completed for the April 2004 WFR. Conder did not want to

release another Customer Engineer from Tyler, Texas because she had

let Baxley go in the April WFR. Second, Conder had received

customer and employee complaints about Smith, and she had received

no such complaints about her other Customer Engineers since

becoming Smith’s District Manager in November 2003. She believed

that Smith’s customer relation, interpersonal, and teamworking

skills were the lowest in her work group. Third, Conder believed

that Smith’s involvement in the SBC incident exhibited

 

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- 8 -

insubordination, a lack of professionalism, and poor judgment. The

court will analyze Smith’s claim of pretext in the context of these

underlying reasons.

IV

HP has adduced evidence that Conder recommended Smith for

inclusion in the October WFR because she had given him the lowest

Customer Engineer rating on her team in Dallas-Fort Worth during

the assessment she completed for the April 2004 WFR. 

A

Smith opposes HP’s reliance on Conder’s April 2004 ranking on

the threshold basis that HP failed to produce the rating document

until July 2006, nearly three weeks after the discovery cutoff. He

complains that, although he properly requested such documents, HP

responded in December 2005 that there were none. And when he asked

Conder during her February 2006 deposition whether she had been

asked to prepare such a ranking, she said “No.” Smith contends

that he was not allowed to discover, analyze, seek to impeach, or

otherwise consider the ramifications of the document and, as a

sanction, the court should exclude the document, all references to

it, and any reliance on it, and should strike it from HP’s motion

and briefing.

HP responds that it was under a continuing obligation to

supplement its discovery as it located relevant information, it did

not locate the document in its initial search for responsive

 

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- 9 -

documents, and the document was later identified and produced

shortly thereafter. It posits that Smith has cited no cases to

support the contention that the court should not consider Conder’s

assessment, and that during Conder’s deposition Smith learned that

there had been a WFR in April 2004 but failed to ask whether Conder

had performed an assessment or ranking of her employees at that

time.

The court denies Smith’s request to exclude and strike the

document and any references to, or reliance on, it. Smith cites no

Federal Rule of Civil Procedure in support of his request, so the

court is unaware of the precise basis on which he seeks the

stringent relief of excluding consideration of evidence from the

disposition of a motion. Without such citation, the court cannot

conclude that he has made the necessary showing to support this

relatively severe sanction. 

Moreover, the court concludes that striking the evidence is

unwarranted. HP produced the document before it filed its summary

judgment motion, and just shy of two months before Smith filed his

response brief. Smith thus had fair notice that HP was relying on

this evidence to support one of the reasons for including him in

the October 2004 WFR. He had ample time to secure and introduce

evidence sufficient to raise a genuine fact question concerning

whether HP’s reliance on the evaluation is pretextual.

Additionally, Fed. R. Civ. P. 56(f) offered Smith the procedural

 

 Case 3:05-cv-01123-D Document 50 Filed 03/06/07 Page 9 of 30 PageID 751
2Smith asserts that he only worked with Conder on one tape

library escalation——Fusion Labs——from the time Conder began

supervising him until April 2004. The court accepts this as true

and assumes that the Fusion Labs escalation is the one at issue. 

- 10 -

option of seeking a continuance of the deadline for filing his

summary judgment response had he truly thought it necessary to

analyze, seek to impeach, or otherwise consider the ramifications

of Conder’s 2004 evaluation. He did not seek such relief.

Accordingly, the court will consider Conder’s evaluation for the

April 2004 WFR. 

B

Smith maintains that the April 2004 Conder ranking is not

worthy of credence. He contends, first, that Conder attempts to

explain her subjective evaluation by giving one concrete example of

Smith’s poor performance: his handling of a tape library

escalation. Smith maintains that this example is not supported by

HP’s records, which show that HP commended him for the Fusion Labs2

tape escalation and that he received letters from two Fusion Labs

managers praising his work on the project. He posits that the

evidence of the praise he received for his work on this project

undercuts and raises a fact question about the credibility of

Conder’s April 2004 ranking.

A reasonable jury could not find on this basis that Conder’s

evaluation is pretextual. Conder assessed Smith’s performance in

eleven categories. One category evaluated was “Technology

 

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3

The court does not suggest that a reasonable jury would be

required to doubt a majority of the scores given or even a

particular portion of the evaluations in the eleven categories.

Smith has not shown, however, that a reasonable jury could doubt

Conder’s evaluation to the extent of finding that it is pretextual.

- 11 -

Consulting Skills.” She averred in her affidavit that one reason

she assigned him a rating of “2” in this category——meaning that he

demonstrated a skill only “to a small extent”——was because during

the tape escalation “[h]e needed reminders to continue to raise the

awareness of his customer’s issues to the proper technical people

within HP.” D. App. 223. Smith has presented no evidence that

would enable a reasonable jury to find that Conder did not in fact

subjectively hold this opinion of Smith’s performance. 

But even if a reasonable jury could doubt Conder’s rating of

“2” in this one area, Conder evaluated Smith poorly based on a

total of eleven different categories. Smith is attempting to avoid

summary judgment by cherry picking one example that Conder gave in

support of one category of a multi-component metric. He has not

presented evidence that would allow a reasonable jury to find that

Conder did not subjectively believe in the accuracy of a sufficient

number of these eleven ratings to permit the finding that her

evaluation is pretextual.3

Nor is it sufficient that Fusion Labs managers praised Smith’s

work. This difference of opinion would only call into question

Conder’s evaluation of only one category of performance. And the

fact that Conder’s opinion and her ultimate ranking of Smith’s

 

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- 12 -

“Technology Consulting Skills”——from an employer’s

perspective——differed from the opinions of those who favorably

reviewed Smith’s performance——from a customer’s viewpoint——is

insufficient to raise a genuine issue of pretext.

And even if Smith’s evidence would permit the finding that

Conder’s assessment of his performance in the one area of

“Technology Consulting Skills” was unreasonable or erroneous, that

is insufficient to establish pretext. An employer “is entitled to

be unreasonable so long as it does not act with discriminatory

animus.” Sandstad, 309 F.3d at 899. “‘[E]ven an incorrect belief

that an employee’s performance is inadequate constitutes a

legitimate, non-discriminatory reason’ for termination.” Bryant v.

Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (quoting

Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). And

the mere fact that Conder’s evaluation differed from the opinions

of others does not raise a genuine issue of fact. “The existence

of competing evidence about the objective correctness of a fact

underlying a defendant’s proffered explanation does not in itself

make reasonable an inference that the defendant was not truly

motivated by its proffered justification.” Little, 924 F.2d at 97

(citing Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507 (5th

Cir. 1988)). 

Smith argues, second, that Conder’s bias is made evident by a

comparison of her evaluation to the objective efficiency rating

 

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- 13 -

that HP uses to assess performance. He contends that according to

the efficiency rating——i.e., “an evaluation of the productivity of

a customer engineer comparing his ability to complete tasks

successfully relative to the available time to complete them, among

other criteria,” P. Br. 7——he was consistently one of the most

productive engineers in the area. This evidence would not permit

a reasonable jury to find that Conder’s evaluation is pretextual.

In the April 2004 ranking, Conder assessed job-related skills

and competencies in areas that appear to be much broader than mere

employee efficiency. She rated Smith on numerous non-technical

skills, such as “Winning Attitude,” “Passion for Customers,”

“Global Mindset in Action,” and “Leveraging Diversity.” D. App.

230. Smith has presented no evidence that any of these basic

competency skills was taken into consideration as part of Smith’s

efficiency rating. Therefore, Smith’s high efficiency rating

scores would not permit a reasonable jury to find that Conder’s

evaluation is pretextual. 

Moreover, an employer could conclude that an employee who is

highly productive in terms of efficiency is less valuable than one

who has other relevant skills and competencies. Even if this

preference is unreasonable, it is not so unreasonable as to permit

a finding of pretext. As noted, even an incorrect belief that an

employee’s performance is inadequate constitutes a legitimate,

nondiscriminatory reason.

 

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4

Some HP Customer Engineers were “designated”——they reported

to work each day at a specific customer’s site. Other Customer

Engineers, including Smith, were “on call” or “reactive”——they

responded to different customer service calls and traveled between

customer sites.

- 14 -

Smith argues, third, that Conder’s positive evaluation of

Customer Engineer Mike Stricklin (“Stricklin”), a Caucasian,

compared to her negative assessment of him, raises a fact question

concerning pretext. Stricklin had been the “designated” Customer

Engineer at SBC’s downtown Dallas office.4 Prior to the April 2004

WFR, Conder discovered from a report from SBC, and from complaints

from other HP employees, that Stricklin was not always onsite at

SBC, as required. Instead, he had been working from home without

permission, and he could not document each hour worked. HP gave

Stricklin a Misconduct Advisory memorandum, and it was decided that

he should be transitioned from the SBC worksite to an “on call”

assignment. Smith contends that on April 9, 2004, the day Conder

completed the WFR ranking, she discussed with Human Resources the

likelihood that HP would terminate Stricklin, and she later

received the paperwork to do so. Instead, she disciplined him only

with a Misconduct Advisory memorandum and imposed conditions on his

continued employment. Although Stricklin engaged in serious

misconduct, Conder rated him as one of her top Customer Engineers.

Smith argues that Conder’s handling of the Stricklin matter

evidences her bias and raises an issue of pretext.

This evidence is also insufficient to permit a reasonable jury

 

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- 15 -

to find pretext. Smith essentially argues that Conder’s April 2004

assessment of his job performance is unworthy of credence because

she rated Stricklin among her top Customer Engineers despite her

contemporaneous conclusion that he had engaged in serious

misconduct regarding SBC. But this argument improperly isolates

the April 2004 evaluation as if it were the only or even primary

basis for Conder’s decision to include Smith rather than Stricklin

in the WFR. While Conder relied on the April 2004 evaluation, she

did so in tandem with other reasons, including based on facts

derived after the evaluation. By the time of the October 2004 WFR,

Conder was able to assess and compare Stricklin’s and Smith’s

relative performance in a larger context. Therefore, a reasonable

jury could not find that her decision to give Stricklin a high

rating in April 2004, despite his troubles at SBC, and to give

Smith a low rating, shows that her reliance on Smith’s April 2004

evaluation is pretextual, provided her broader assessment of their

performance is not unworthy of credence.

Conder testified in her affidavit that, when she made her

recommendations for the October 2004 WFR, she in fact considered

that Stricklin had received a Misconduct Advisory in May 2004. But

she did not deem this sufficient to warrant including him rather

than Smith in the WFR because she believed the discipline of

Stricklin was based on a misunderstanding about his being able to

work from home. Conder did not find that he had intentionally

 

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5In its reply brief, HP cites Celestine v. Petroleos de

Venezuella SA, 266 F.3d 343, 357 (5th Cir. 1999), to contend that

“Smith must establish that he was clearly more qualified than the

person retained to establish pretext in a WFR context.” D. Reply

Br. 8. The court has not considered this argument. First, the

part of Celestine that HP cites addresses a claim for failure to

promote and train. Second, this assertion is directly refuted——at

least in the context of an age discrimination case——by EEOC v.

Manville Sales Corp., 27 F.3d 1089, 1096 n.5 (5th Cir. 1994) (age

discrimination case) (holding that it was reversible error for

district court to charge jury that plaintiffs were required in

- 16 -

misrepresented his hours or that he was dishonest; instead, she

believed that Stricklin had made a mistake that had been adequately

addressed. Moreover, Stricklin had not exhibited any performance

issues since May 2004. Additionally, Conder thought Stricklin’s

customer relations skills were excellent, that he was highly

regarded by his customers, and that his technical skills were among

the strongest of the workgroup. Stricklin had received a score of

43 in the April 2004 assessment versus Smith’s score of 31. The

only complaint she had received about Stricklin came from another

HP Customer Engineer and, unlike Smith, Stricklin’s professionalism

and customer relations, interpersonal, and teamworking skills had

never been called into question. It was for all these reasons that

she decided not to select Stricklin for the WFR, and the other

District Managers concurred.

In order for a reasonable jury to find this explanation to be

pretextual, Smith’s evidence would have to permit the finding that

Conder’s evaluation of Stricklin’s performance was more than simply

unreasonable or incorrect. He has not done so.5

 Accordingly,

 

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reduction of force case to show that they were clearly better

qualified than the employees retained).

6

HP Customer Engineers were referred to informally as “Red

Team” and “Blue Team” employees. “Blue Team” Customer Engineers

had worked for HP before its 2002 merger with Compaq Computers

Corporation (“Compaq”). “Red Team” employees were Customer

Engineers who had worked for Compaq before the merger.

- 17 -

Smith has failed to demonstrate that a reasonable jury could find

that Conder’s reliance on the April 2004 evaluation as one ground

to include him in the WFR is pretextual.

V

Smith next argues that the customer and employee complaints on

which Conder relied in selecting Smith for the WFR are pretextual

and unworthy of credence because Stricklin also received customer

and employee complaints but was not included in the WFR.

A

According to HP’s evidence, in May 2004 Smith responded to a

call from a very important HP customer, Kimberly-Clark. A

Kimberly-Clark employee recounted in an email that Smith had asked

“why we are taking so long to sync a disk,” and he stated “he has

‘better things to do rather than wait here all day.’” D. App. 117.

The employee complained in the email about Smith’s remarks. Id. at

116-17. Conder stated in her affidavit that, in addition to these

customer complaints, she received complaints from other HP

employees that Smith had been making derogatory, offensive comments

about his “Red Team” coworkers.6 A “Red Team” District Manager and

 

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7

Smith maintains that the evidence regarding the LSG-Sky Chefs

complaint should be stricken because HP has relied solely on

“hearsay, coupled with rank speculation.” P. Br. 9. The court

need not decide whether this evidence is admissible because, even

if the court excludes the LSG-Sky Chefs complaint, Smith would not

be able to establish that he and Stricklin were nearly identical.

- 18 -

Customer Engineer heard Smith make derogatory comments regarding

the aptitudes and capabilities of pre-merger Compaq Computers

Corporation (“Compaq”) employees, i.e., “Red Team” employees. The

District Manager reported to Conder her concerns about these

comments and their impact on employee morale. 

Sometime in June or July 2004, Conder and Ken Lilly (“Lilly”)

met with Smith to discuss his performance problems. At this

meeting, Conder addressed the SBC incident, Smith’s derogatory

comments about the “Red Team” employees, and Kimberly-Clark’s

complaint about his lack of professionalism. This meeting

constituted a verbal warning under HP’s corrective action process.

In early fall 2004, Conder received a report from Team Lead Cory

Woods that LSG Sky Chefs (another large HP customer) was

dissatisfied with Smith’s performance and would prefer that he not

return to their worksite.7

Smith contends that Conder also received a customer

complaint——from SBC——and two employee complaints about Stricklin’s

misconduct concerning the SBC account. He argues that a reasonable

trier of fact could find that the complaints concerning Stricklin’s

conduct related to SBC were far more significant than those

 

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- 19 -

concerning his actions at Kimberly-Clark, and that Conder viewed

them as more serious. Smith posits that Conder’s pretext/falsity

is apparent from discrepancies between her analysis of Stricklin’s

misconduct as of April 2004 and as of the filing of HP’s summary

judgment motion, when she minimized its severity. He also

maintains that Conder’s disparate treatment of Stricklin’s

transgressions versus his own provides a reasonable basis to

disbelieve Conder, and that she accomplished a termination——greater

discipline than HP Human Resources said was warranted——by including

Smith in the WFR. Finally, Smith argues that Conder relied during

her deposition on evidence concerning a complaint from ACS, but HP

has failed to rely on it in moving for summary judgment. He

suggests that Conder’s reliance on unreliable information in making

her decision raises a fact question.

B

The court concludes that Smith has not introduced sufficient

evidence to permit a reasonable jury to find that Conder’s reliance

on customer and employee complaints is pretextual. To establish

that he was subjected to disparate treatment, Smith must show that

HP gave Stricklin preferential treatment under nearly identical

circumstances. Bryant, 413 F.3d at 478 (Title VII termination

case) (citing cases). Nearly identical circumstances means that

the misconduct was nearly identical to that engaged in by the other

employee. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245

 

 Case 3:05-cv-01123-D Document 50 Filed 03/06/07 Page 19 of 30 PageID 761
- 20 -

F.3d 507, 514 (5th Cir. 2001)). In determining whether

circumstances are “nearly identical,” the Fifth Circuit has noted

that “the mere fact that two situations can be classified in the

same broad category is a far cry from their being nearly

identical.” Dodge v. Hertz Corp., 124 Fed. Appx. 242, 244 (5th

Cir. 2005) (unpublished opinion). 

Although a jury could reasonably find that Stricklin engaged

in misconduct, it could not find that the circumstances were nearly

identical to those on which Conder relied. The complaints about

Stricklin, although from a customer and HP employees, related to

his misconduct concerning a single customer. HP received several

complaints about Smith, one of which (assuming the LSG-Sky Chefs

complaint is disregarded) was from Kimberly-Clark, a very important

customer, and others of which were from employees. The employees

were not merely complaining about Smith’s actions at KimberlyClark; they were voicing concerns about Smith’s constant negative

and degrading comments about “Red Team” employees, which were

adversely affecting morale. According to Conder, Smith was “making

negative and condescending statements that were impacting morale.”

D. App. 224. While a jury could reasonably find that Stricklin’s

misconduct involving SBC was more serious than was Smith’s at

Kimberly-Clark, it could not find that Stricklin received

preferential treatment under nearly identical circumstances, where

Smith had also been the subject of a customer complaint and had

 

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engaged in conduct that undermined something so fundamental to the

health of a business as employee morale.

Moreover, Smith cannot establish that the circumstances

involving Stricklin are nearly identical to his because Conder did

not select him for inclusion in the WFR based on the customer and

employee complaints alone. She also chose him because of his

ratings on the April 2004 assessment and his conduct in connection

with the SBC incident that she considered insubordination.

Stricklin did not receive a low April 2004 ranking score or engage

in conduct that a reasonable jury could find constituted

insubordination. Therefore, it would be fundamentally flawed to

characterize the customer and employee complaints in isolation as

the correct context for determining whether there were nearly

identical circumstances. 

Because a reasonable jury could not find that Stricklin

received preferential treatment in nearly identical circumstances,

it likewise could not find that Conder’s reliance on customer and

employee complaints to include Smith in the WFR is pretextual.

VI

The final reason HP proffers in support of its decision to

terminate Smith is the SBC incident, in which Smith discussed the

lack of qualifications of an HP employee with an SBC manager. 

A

 HP replaced Stricklin as the dedicated Customer Engineer at

 

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8

Smith denies having this conversation with Jacks.

9Lilly had at one point in time been Smith’s District Manager.

10Smith objects to the affidavits of Jacks and the hearsay

evidence from HP’s management employee, Lilly. The court need not

address the objections because, regardless of the evidence, it is

undisputed that Conder learned of Smith’s statements to Mayberry

regarding Parker’s qualifications.

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the SBC account with another Customer Engineer, Don Parker

(“Parker”). HP maintains that Smith was unhappy that Stricklin, a

“Blue Team” employee, had been replaced by Parker, a “Red Team”

employee. Smith allegedly voiced his disapproval to coworker

Kristi Jacks (“Jacks”), and stated that he knew a “high-up person

at SBC” and was going to tell the person that Conder and HP had no

idea what they were doing.8

 Conder was made aware of Smith’s

statement, but before she could intervene, Smith discussed the

matter with SBC manager Sharon Mayberry (“Mayberry”). Smith told

Mayberry that Parker did not have the proper training for the job.

Mayberry then called Lilly, the District Account Support Manager in

charge of the SBC account,9 and told him what Smith had said.

Conder viewed Smith’s statements to Mayberry as an act of

insubordination that contributed to her decision to recommend him

for inclusion in the WFR.

B

In addition to challenging HP’s evidence,10 Smith argues that,

in telling his friend Mayberry that he did not think that Parker

 

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was qualified for the SBC account, he was merely complying with

HP’s Standards of Business Conduct, which required that HP

employees deal fairly and truthfully with customers and provide the

best service he could. He also maintains that SBC was

contractually entitled to a certain level of qualification,

training, and experience in Customer Engineers. Smith asserts that

it was in this context that he responded to Mayberry’s question

about Parker. He contends that his statement concerning Parker’s

lack of training was undeniably true.

 Smith cites the Fifth Circuit’s decision in Rachid, 376 F.3d

305, as support for his argument that he believed he was complying

with HP’s published standards by truthfully answering Mayberry’s

questions about Parker’s qualifications. He contends there is a

fact question regarding whether he violated company policy. Smith

maintains that under Rachid, HP’s contention that he was

insubordinate, coupled with his belief that he was complying with

company policy when he answered Mayberry’s inquiry, presents a

material factual dispute to be decided by a jury. The court

disagrees.

In Rachid the employer specifically cited the employee’s

failure to follow company policy relating to employee time as its

sole reason for firing him. Id. at 307-08. Here, Conder did not

rely on a violation of company policy as a reason to discharge

Smith. Rather, she selected Smith for inclusion in a WFR aimed at

 

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cutting HP operating expenses. Although Conder relied on the SBC

incident as one basis for recommending that Smith be included in

the WFR, the facts of this case are distinguishable from Rachid.

Conder viewed Smith’s actions in the SBC incident as demonstrating

insubordination, and this was one of several reasons for

recommending Smith for the WFR. Smith’s belief that in reporting

his opinion to Mayberry he was complying with HP policy would not

permit a reasonable jury to find that Conder’s reliance on this

incident to include him in the WFR is pretextual.

VII

A

In opposing HP’s motion, Smith also relies on HP’s contention

that the comments and statements of Smith’s friends and coworkers

and other non-decisionmakers are irrelevant and do not raise a

genuine fact issue. HP asserts that statements attributed to

Smith’s friends and coworkers, Tudario T. Turner (“Turner”) and

Danny LeBlanc (“LeBlanc”), are stray remarks and should be

disregarded, and that the alleged opinions of other friends and

coworkers are irrelevant. Smith responds that the court should

consider the evidence of other managers as to the criteria for the

WFR.

Smith maintains that there is evidence that Keith Read

(“Read”), the HP Area Manager over North Texas, and Turner, Read’s

counterpart in South Texas, both received information concerning

 

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the guidelines for the WFR. Turner told Smith that he did not fit

in the criteria for the WFR. Smith posits that Turner’s statement

is not a stray remark, and that a reasonable trier of fact could

infer from it that Conder’s post-hoc rationalizations are false

because they did not follow established guidelines.

He also argues that this case is not subject to the usual rule

regarding coworker opinions because they are not intended to show

discriminatory animus per se but are offered to test whether

Conder’s assertions about his people skills are credible. Smith

posits that Conder relied on his alleged shortcomings in “soft

skills” to include him in the WFR. He asserts that, at least

concerning interpersonal skills and teamwork, the phrase “soft

skills” would lack meaning unless Conder consulted team members

with whom he interacted. Conder acknowledged that she selected

Smith for the WFR at least in part because of negative feedback

from two Caucasian coworkers, and the only way to verify whether he

had poor interpersonal skills was to ask his peers. Smith

maintains that the evidence shows that, contrary to Conder’s

assertions, his peers admired him as a team player, and Conder

appears to have credited the comments of two Caucasian coworkers

rather than assess a wider, more representative sample. Thus the

comments of coworkers are admissible to test whether Conder’s

assertions about Smith’s people skills are credible.

Smith also cites his last performance evaluation as evidence

 

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of his teamwork. His manager stated that Smith was a great team

player and that he had received feedback from various sources that

said Smith was a good strong team player. And Smith cites evidence

that, after his termination was announced, the team of Account

Support Engineers with whom he worked closely met to discuss the

WFR. Of the ten or eleven present, only one, Jacks (who Smith says

provided false information about him) supported the decision.

LeBlanc was bewildered by the decision, thought it did not make

sense, and did not like it. Smith argues that this evidence

creates a genuine issue of fact concerning Conder’s assertion that

Smith was reviled and casts doubt on her contrary assertions,

permitting the trier of fact to disbelieve the reasons Conder gave

for selecting Smith for termination.

B

Smith’s reliance on the statements and opinions of Turner and

coworkers and on his performance evaluation is also insufficient to

raise a fact issue concerning pretext. 

The evidence concerning Turner is found in Smith’s affidavit

and Turner’s deposition. Smith averred that “[s]hortly after I was

laid off in October 2004, Turner and I discussed my lay off. At

that time, Turner told me I should not have been laid off. He said

I did not fit the criteria for the workforce reduction.” P. App.

25. Turner testified that William Dell’Accio of HP Human Resources

reviewed the guidelines with him and other managers, and “he

 

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focused on the skills in the broader sense of overall performance,

skills that were——that include both your customer skills, technical

skills, overall performance.” Id. at 84. 

A reasonable jury could only find that Conder in fact assessed

Smith’s customer skills, technical skills, and overall performance

when deciding whether to include him in the WFR. And Turner

acknowledged that he was the Director for South Texas, New Mexico,

and Louisiana, not for Smith’s territory. Thus the jury could only

find that Turner’s statements that Smith “should not have been laid

off” and that he “did not fit the criteria” represent his opinion

based on something other than a personal assessment of his

performance. It could not reasonably find based on that opinion

that Conder’s detailed explanation for selecting Smith for the WFR

is pretextual. 

And the fact that Smith’s manager saw him as a great team

player and had received feedback to that effect, and that coworkers

disagreed with Conder’s decision, at most represents evidence that

there were differences of opinion about Smith’s job performance.

Even if Conder’s evaluation of Smith’s performance was

unreasonable, incorrect, or differed from the opinions of others,

this is insufficient of itself to permit a reasonable finding of

pretext. For the reasons the court has already explained, Smith

has not presented evidence that would permit a reasonable jury to

find that the multiple reasons on which Conder relied in including

 

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him in the WFR are pretextual.

VIII

The court concludes by addressing an argument that HP makes

only briefly, but that the court finds bears emphasis in

understanding why a decision in HP’s favor is compelled by this

record. 

“[T]here [are] instances where, although the plaintiff has

established a prima facie case and set forth sufficient evidence to

reject the defendant’s explanation, no rational factfinder could

conclude that the action was discriminatory.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). The plaintiff

might create “only a weak issue of fact as to whether the

employer’s reason was untrue and there [may be] abundant and

uncontroverted independent evidence that no discrimination had

occurred.” Id. (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

1291-92 (D.C. Cir. 1998)). It is “possible for a plaintiff’s

evidence to permit a tenuous inference of pretext and yet be

insufficient to support a reasonable inference of discrimination.”

Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 903 (5th

Cir. 2000) (citing Travis v. Bd. of Regents of Univ. of Tex. Sys.,

122 F.3d 259 (5th Cir. 1997)). 

In Price v. Federal Express Corp., 283 F.3d 715 (5th Cir.

2002), for example, the Fifth Circuit assumed arguendo that the

plaintiff had presented evidence showing that the employer’s

 

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explanation was pretextual. Id. at 723. In affirming a summary

judgment in favor of the employer, it nevertheless concluded that

the plaintiff’s evidence of pretext did not support an inference

that intentional discrimination was the real reason for the

employment decision. Id. at 723-24 (citing Reeves, 530 U.S. at

148; Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001)).

In Reeves, the Court recognized that a prima

facie showing, combined with evidence of

pretext, may not always be enough to defeat

judgment as a matter of law, stating that “if

the plaintiff created only a weak issue of

fact as to whether the employer’s reason was

untrue and there was abundant and

uncontroverted evidence that no discrimination

had occurred,” the employer may be entitled to

judgment in its favor. 

Id. at 724 (quoting Reeves, 530 U.S. at 148).

Assuming that Smith has somehow raised a genuine issue of fact

concerning pretext, it is a weak issue of fact and there was

abundant and uncontroverted evidence that no discrimination

occurred. This case contains no evidence that Smith’s race was

ever considered in any respect. Even the “stray remarks” evidence

does not relate to race or permit a racial connotation. Smith does

not contend that there is such proof, and he cites none in his

brief. His case relies on pretext alone. 

There is abundant proof, however, that race did not play a

role in HP’s WFR decisions. During the April 2004 WFR, Conder

ranked Smith the lowest of all her Customer Engineers in the

Dallas-Fort Worth area. Yet she selected a Caucasian Customer

 

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Engineer to be laid off. Of the Customer Engineers whom she

placed in the top four, two were African-American. When the

October 2004 WFR came along, Conder recommended two Customer

Engineers to be included: Smith and a Caucasian. HP terminated

twelve Customer Engineers in all, including seven Caucasians. Two

of the twelve were African-American. The unfortunate consequences

of being included in the two WFRs fell on Caucasians and AfricanAmericans indiscriminately. 

* * *

The court concludes that Smith has failed to introduce

evidence that would permit a reasonable jury to find that HP’s

legitimate, nondiscriminatory reason for including him in the WFR

is pretextual. Accordingly, the court grants HP’s August 1, 2006

motion for summary judgment and dismisses this action with

prejudice by judgment filed today.

SO ORDERED.

March 6, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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