1 United States Court of Appeals,

Fifth Circuit.

No. 94-11137

Summary Calendar.

Rose Marie RAY, Plaintiff-Appellant,

v.

TANDEM COMPUTERS, INC., Defendant-Appellee.

Sept. 11, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Rose Marie Ray appeals the entry of summary judgment in favor

of her former employer, Tandem Computers Inc., on her claims of sex

and age discrimination and retaliation. We affirm.

Background

Ray, a white female born in 1941, joined Tandem in 1982 as a

sal es representative. Initially her sales were low, but her

performance imp roved over time, resulting in company recognition

and several awards.

In September of 1988 Ray was placed under the supervision of

Keith Keister in Tandem's Dallas office. Shortly thereafter, one

of Tandem's major clients, MoneyMaker/TransFirst, requested that

Ray be removed from its account after she had an argument with one

of their representatives. Tandem reassigned the account to John

Koenigs, a transfer which Ray viewed as sex discrimination

notwithstanding the fact that she had recommended another male as2

a replacement. Ray disputed the reassignment and Tandem's failure

to reserve in her favor all of the commi ssions earned within 90

d ays of the reassignment. Ray complained to Keister's superiors

and t hen confronted him demanding an explanation. Keister

allegedly yelled that he was tired of her going over his head and

that she should get out of his office. Keister later apologized

for his behavior but criticized Ray for her conduct, including her

"crying wolf" about discrimination. Tandem ultimately concluded

that Ray was entitled to a 75/ 25 split of the commissions and

corrected the original award.

In June o f 1989 Koenigs transferred to California and it

becam e necessary to reassign Tandem's account with the Mobil Oil

Company. Keister initially reassigned this account to Dana Alagna,

a male younger than Ray, but later reassigned the account to Ray.

Keister then escorted Ray to an introductory lunch meeting with a

Mobil representative at Hooters, a restaurant/bar known more for

the attire of its service personnel than its cuisine. Ray

complained to Keister that th ey should not do business in a bar,

a nd informed his superiors that the atmosphere was inappropriate

for female sales representatives.

When Koenigs returned to the Dallas o ffice in 1991, Keister

reassigned the Mobil account to him, granting Ray an unprecedented

one year reservation of commissions. In place of the Mobil account

Tande m reassigned several accounts to Ray. Ray protested the

reassignment of the Mobil account but was told by an upper level

manager that Koenigs was the "better man for the job" because of1 In late 1991, Ray filed a formal, internal complaint

alleging sex, but not age, discrimination in her treatment by the

company since 1988. The company investigated the charge, found

no evidence of discrimination and so informed Ray in January of

1992.

2 Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq.

3 Age Discrimination in Employment Act, as amended, 29 U.S.C.

§ 621 et seq.

4 Both Title VII and the ADEA prohibit an employer from

retaliating against employees who exercise their rights under the

respective act. See 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d).

3 his well developed contacts within that organization. Incensed,

Ray gave the manager a most v ulgar suggestion and stormed out of

his office. 1

While this acrimonious relationship with Tandem was

developing, Ray's performance suffered. Her sales dropped

significantly in 1989, largely due to the hostile takeover of her

largest client. She asked for, and received, a reduction in her

quota for 1989, but failed to meet the reduced revenu e goal. In

each of the next three ye ars, Ray again failed to meet her sales

quota, sometimes by nearly one-half.

In February of 1992 Tandem placed Ray on a Performance

Improvement Plan or "PIP" for a 90 day period. The plan included

rev enue goals, established by Ray, and once a week "coaching"

meetings with her immediate supervisors. After Ray failed to meet

the goals of her PIP, Tandem terminated her employment. Ray

subsequently filed the instant suit alleging sex 2 and age 3

discrimination in the terms and conditions of her employment and in

Tandem's termination of her empl oyment, retaliation 4 in her5 The district court ruled that Ray's claims based on

incidents occurring prior to August 22, 1991 were timed-barred.

See 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d)(2). Ray does not

appeal this ruling.

6 Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir.)

(citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 467,

126 L.Ed.2d 419 (1993).

4 placement on the PIP and in her termination, and various state law

tort claims not relevant to this appeal.

Tandem moved for summary judgment, offering evidence that its

adverse employment actions were based on legitimate

nondiscriminatory reasons, namely Ray's lackluster performance.

Ray contended that these reasons were pretextual and that various

work-related incidents and remarks by her supervisors demonstrated

Tandem's discriminatory animus in the challenged actions. The

district court ruled that Ray failed to provide sufficient evidence

that Tandem's articulated legitimate nondiscriminatory reasons were

pretexts for either sex or age discrimination or retaliation. 5 Ray

timely appealed.

Analysis

We review the district court's grant of summary judgment de

novo. "Summary judgment is proper when no issue of material fact

exists and the moving party is entitled to judgment as a matter of

law. In determining whether summary judgment was proper, all fact

questions are viewed in the light most favorable to the

non-movant." 6

Ray claims that Tandem discriminated on the basis of sex in7 See Davis v. Chevron U.S.A. Inc., 14 F.3d 1082 (5th

Cir.1994) (outlining the prima facie case for discrimination

claims).

8 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

9 Tandem also notes that the employees against which Ray

seeks to compare salaries held different titles and job

responsibilities and were paid on a different scale.

5 reassigning her accounts to younger males, in denying her

promotions and transfers within the company, in denying her

requests for increased compensation, in placing her on a PIP, and

ultimately in discharging her. For the purposes of today's

disposition, we assume, as did the district court, that Ray

established a prima facie case of s ex discrimination on these

allegations. 7 Under the burden shifting framework established in

McDonnell Douglas Corp. v. Green 8 and its progeny, this showing

requires Tandem to articulate a legitimate nondiscriminatory reason

for its adverse employment actions.

In its motion for summary judgment Tand em offered evidence

that it based its employment decisions upon neutral

performance-related factors. Tandem maintained that smaller

accounts were regularly taken from all senior sales

representatives, whether male or female, and given to younger sales

representatives who were paid lower commissions. This allowed the

more senior representatives to focus their efforts and experience

on more lucrative and difficult accounts. Tandem maintained that

Ray's poor performance from 1989 until her discharge motivated its

pay increase and promotion decisions, 9 the decision to place her on

the PIP, and its decision to terminate her employment. Finally,10 St. Mary's Honor City v. Hicks, --- U.S. ----, ----, 113

S.Ct. 2742, 2748, 125 L.Ed.2d 407 (1993) ("By producing evidence

(whether ultimately persuasive or not) of nondiscriminatory

reasons, petitioners sustained their burden of production.").

11 Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993).

12 We note that time-barred acts can be used as evidence of

discriminatory intent in later actions. See Cortes v. Maxus

Exploration Co., 977 F.2d 195 (5th Cir.1992) (citing cases).

13 Molnar v. Ebasco Constructors, Inc., 986 F.2d 115 (5th

Cir.1993).

6 Tandem maintained that Ray's request for a transfer to another

office was not processed after Ray told her supervisor that she did

n ot want to move. In articulating these reasons, Tandem met its

burden of production. 10

We thus turn to the ulti mate question: whether Ray has

provided sufficient summary judgment evidence that Tandem

discriminated against her on the basis of sex. 11 Ray seeks to

establish that Tandem's proffered reasons are pretexts for

discrimination by demonstrating discriminatory animus in certain

pre-limitations perio d actions. 1 2 First, she contends that the

pre-limitatio ns period assignment of the lucrative Mobil Oil

account to Koenigs and a nonproducing account to her demonstrates

Tandem's sexual bias in the workplace. We are not persuaded. The

record reflects that Koenigs had significan tly better relations

with Mobil than did Ray and that she requested th e assignment of

the questioned account. Her subjective belief that discriminatory

intent motivated these actions is insufficient to establish a

material question of fact regarding Tandem's motives. 13

Next, Ray contends that her supervisor's scheduling of a14 We underscore that Ray expressly disavows raising any

hostile environment or sexual harassment claims.

15 Moore. Ray also points to an incident on a company golf

outing where another female Tandem employee attempted to

discourage Ray from playing golf. This incident suggests only

that another Tandem employee was mistaken in assuming that Ray

did not play golf; it does not support an inference of sex

discrimination.

16 Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858

(5th Cir.1993) (concluding that routine use of the word "nigger"

was direct evidence of discrimination).

17 See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th

Cir.1995).

7 lunch meeting at Hooters restaurant is evid ence of Tandem's

sexually discriminatory animus in the challenged actions. 14

Although we agree that scheduling a business meeting for mixed

company at Hooters was grossly unprofessional and may be relevant

to a supervisor's motives in employment actions , it is not

sufficient to support a discrimination verdict absent some proof of

a causal connection between the incident and the adverse employment

action. 15

Ray also contends that this discriminato ry environment is

further demonstrated by Keister's alleged sta tement four years

prior to her discharge that he was going to get rid of "the cunt in

the office." While the repeated use of this crude and contumelious

appellation might well support a finding of discriminatory animus, 16

a single comm ent, made several years prior to the challenged

conduct, is a stray remark too remote in time to support an

inference of sex discrimination in later employment actions. 17 Ray

also points to Tandem supervisor Jerry Earle's statement that18 See Guthrie v. Tifco Industries, 941 F.2d 374 (5th

Cir.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117

L.Ed.2d 495 (1992). See also Neuren v. Adduci, Mastriani, Meeks

& Schill, 43 F.3d 1507 (D.C.Cir.1995) (holding use of term

"bitch" in employee evaluation not to support finding of

discriminatory animus when considered in conjunction with

evidence indicating that evaluation was based on gender-neutral

factors).

19 Ray's claims of discrimination are undermined by her

statement that Keister was an even-handed harasser, treating all

of his employees poorly. Title VII does not exist to punish poor

management skills; rather, it exists to eliminate certain types

of bias in the workplace. See Bienkowski v. American Airlines,

Inc., 851 F.2d 1503 (5th Cir.1988).

8 Koenigs was the "better man for the job" when explaining to Ray why

the Mobil account was being reassigned. The record reflects that

Tandem had an ample basis to conclude that Koenigs was better

suite d for the position because of his strong contacts and

extensive experience with key Mobil personn el. Earle's

articulation of this fact using the common but clearly dated phrase

"better man for the job" does not support a finding of

discriminatory animus in the challenged actions. 18

Ray's remaining evidence of discrimination is equally

unpersuasive. Although she complains about Tandem's initial denial

of a reservation of commissions following her removal from the

MoneyMaker account and Tandem's later placement of her on PIP, she

fails to controvert Tandem's evidence that other similarly situated

employees, both male and female, were treated the same. 1 9 The

district court's entry of summary judgment for Tandem on this claim

must be affirmed.

Ray next contends that the district court erred in entering

summary judgment for Tandem on her age discrimination claims.20 We apply the same analysis to Ray's age claim that we

applied to her sex discrimination claim. See Burns v. Texas City

Refining, Inc., 890 F.2d 747 (5th Cir.1989).

21 Molnar.

22 To establish a prima facie case of retaliation, Ray must

demonstrate: "(1) that she [ ] engaged in an activity protected

by Title VII, (2) that an adverse employment action occurred;

and (3) that there was a causal connection between the

participation in the protected activity and the adverse

employment action." EEOC v. J.M. Huber Corp., 927 F.2d 1322,

1326 (5th Cir.1991) (quoting McMillan v. Rust College, Inc., 710

F.2d 1112, 1116 (5th Cir.1983)).

23 See Payne v. McLemore's Wholesale & Retail Stores, 654

F.2d 1130 n. 13 (5th Cir.1981) (allowing inference of causation

9 Again we assume, arguendo, that Ray established a prima facie case

of discrimination. 20 Ray fails, however, to demonstrate that

Tandem's articulated reasons for its act i ons were pretextual.

Although Ray makes several conclu sionary assertions that her

supervisors showed preference to younger sales representatives, she

provides no evidence of this pr eference other than her own

assertions that older workers are routinely "forced out" by Tandem.

We conclude that Ray's bald assertions of age discrim ination are

inadequate to permit a finding that proscribed discrimination

motivated Tandem's actions against her. 21

Finally, Ray contends that she provided sufficient evidence

to support a finding that Tandem retaliated against her because of

her complaints of sex discrimination when it placed her on a PIP

and terminated her employment. Ray has made out a sufficient p rima

facie case of retaliation; 22 she filed a sex discrimination

complaint with Tandem's human resources department and was placed

on a PIP shortly thereafter. 23 As with other Title VII claims, thebased on employer's knowledge of activities and temporal

proximity of this knowledge and the adverse action), cert.

denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982).

24 Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th

Cir.1992); Jack v. Texaco Research Center, 743 F.2d 1129 (5th

Cir.1984).

10 establishment of a prim a facie case of retaliation shifts the

burden to Tandem to articulate a legitimate nonretaliatory reason

for its adverse actions. If done, Ray must then prove that

Tandem's reasons are pretextual and t hat "but for" her protected

activities, she would not have been subject to the adverse

actions. 24

Tandem justified its placement of Ray on a PIP on the basis

that she had failed to meet her sales quota in every year since

1989. We therefore turn to Ray's evidence to determine whether a

j ury could find that "but for" her complaints of discriminati on,

she would not have been placed on the PIP or ultimately discharged.

Ray relies principally upon an alleged statement by Keister to Ray

shortly after she had been placed on the PIP to the effect that "if

you had not gone crying to your friends in Cupertino (Tandem's

headquarters), you would not be in the position you are in." She

characterizes this st atement as an admission that her complaints

resulted in her placement on the PIP.

Ray accords too much significance to this oblique statement.

The record reflects that Ray made numerous complaints to Keister's

supervisors listing a multitude of pe rceived problems explaining

her poor performance, only one of which was discrimination. When

considered in light of this history, this single vague statement is25 See Guthrie.

26 See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261

(5th Cir.1994). Ray admits that she had complained to Tandem

about Keister as early as 1989 and sought to have him fired on

numerous occasions.

27 See Waggoner v. City of Garland, Tex., 987 F.2d 1160 (5th

Cir.1993) (finding statements too remote to support finding of

discrimination under ADEA); Armendariz.

11 suscep tible of several interpretations, most of which are

innocuous. We have held that such statements are insufficient to

avoid summary judgment on discrimination claims. 25 We now likewise

hold with respect to claims of retaliation. This conclusion is

supported by Tandem's history of tolerance for Ray's claims of

discrimination since they began in 1983. 26

Ray also points to a 1988 statement by Keister where he

observed that Ray frequently "cried wolf" regarding discrimination.

Even if we construe this observation as evincing disdain for Ray's

exercise of her protected rights, this remark occurred almost four

years prior to the alleged retaliation and is too remote to support

a finding that her complaints of discrimination were the "but for"

cause of her placement on the PIP or her termination. 27 The same

is true for Keister's alleged remark in 1988 that he wanted "to get

rid of Rosie." We also note that each of the remarks Ray relies on

to demonstrate pretext for retaliation is attributable to Keister.

Tandem offered uncontroverted evidence that Keister was not solely

responsible for the decision to place Ray on a PIP and that he had

no input into the decision to terminate her. Under these

circumstances, we perforce conclude that Ray failed to demonstrate28 Cf. McMillan (upholding summary judgment for employer on

retaliation claims despite open criticism by employer of

employee's discrimination complaints when clear that employee

would have suffered adverse action in any event).

12 that Tandem's proffered reasons for its adverse employment actions

were pretexts for illegal retaliation or that "but for" her

complaints of discrimination, she would not have suffered these

adverse employment actions. 28

The judgment appealed is AFFIRMED.