* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 13, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20924

LORENZO G. BAKER,

Plaintiff - Appellant

versus

RANDSTAD NORTH AMERICA, L.P.,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

(No. 4:02-CV-H-02-4870)

Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Lorenzo Baker appeals the district court’s

order granting summary judgment to Defendant-Appellee, Randstad

North America, on his employment discrimination claim. Baker

contends that he successfully established a prima facie case of

race discrimination and that a genuine issue of material fact

exists as to whether Randstad’s articulated reason for terminating

him was a pretext for race discrimination.

I. FACTS AND PROCEEDINGS2

Randstad is a staffing company that places individuals in

temporary and permanent positions in a variety of sectors,

including light ind ustrial and office support. Randstad entered

the Houston market in 2000 and hired Baker as a Business

Development Manager (“BDM”) that spring. BDMs are responsible for

generating new business for Randstad. Randstad requires each BDM

to make at least 75 contacts per week with potential clients and

h ave ten meetings per week with decision makers at potential

clients’ businesses. Randstad also expects BDMs to secure new

accounts on a consistent, weekly basis. Once the BDM closes the

initial deal, Randstad ag ents assume responsibility for client

relationship and work with the client to fill personnel vacancies

as they occur. Baker’s initial supervisor was Regional Market

Manager Alyson Blake. In the fall of 2000, Ron Griffin replaced

her.

Within his first two months at Randstad, Baker secured Reliant

Energy as a client. The Reliant account generated substantial

revenue, and Baker received special recognition for being the top

reven ue producing BDM in the Houston market as a result of it.

Ultimately, however, Randstad had to drop the account in early 2001

because it was not profitable. Specifically, it cost Randstad money

to place employees with Reliant b ecause of various workers’

compensation claims that arose out of Reliant placements.

Securing the Reliant account turned out to be the high point

in Baker’s tenure at Randstad. Notably, although Baker typically1 The evidence shows that Baker failed to meet this

requirement at least once. During the week of February 23, 2001,

Baker made only 48 contacts.

3 made a qualifying n umber of contacts each week, 1 he admittedly

never met the requirement of ten meetings per week with the

potential clients’ decision makers. In the two months before he

was fired, B aker averaged approximately four meetings per week.

Baker also failed to secure new accounts on a consistent basis.

During his 11 months with Randstad, Baker secured only nine new

client accounts; Randstad expected Baker to secure more than three

times that many new accounts in the same period.

In the fall of 2000, Randstad entered a period of financial

decline and laid off 250 employee s nationwide. In December,

Randstad instructed the Regional Market Managers to terminate the

employees who were their lowest performer s. Although Baker was

near the bottom of the list on the basis of his activit y levels,

his supervisor, Griffin, decided to keep Baker on the staff and

monitor his progress over the following three months. Ultimately,

Randstad laid off eight e mployees in the Houston market in

Dece mber. The only BDM who Griffin selected for layoff at this

time was Heather Barladge, a white female . Griffin selected

Barladge because she was unable to meet her activity requirements.

Of the total number of employees that Randstad laid off in

December, more than half were white.

At the end of the first quarter of 2001, Randstad again4

initiated a nationwide reduction in force, this time eliminating

approximately 200 employees. As with the December 2000 layoffs,

Randstad instructed its Regional Market Managers to lay off their

lowest performers. In evaluating the BDMs under his supervision,

Griffin placed special emphasis on thei r abilities to secure new

accounts. If a BDM was underperforming in that area, Griffin would

evaluate the BDM’s activity levels, i.e., the number of con tacts

that the BDM made each week and the number of client meetings that

the BDM had each week. Griffin also considered productivity, which

includes revenue, gross margin, and profitability. By April of

2001, Baker had failed to improve his performance, and he was the

lowest performing BDM in the Houston market. Accordingly, Griffin

selected him for termination. Baker was the only BDM in the

Houston market that Randstad laid off at that time.

Baker filed discrimination charges against Randstad with the

EEOC. The EEOC repeatedly requested documentation from Randstad

regarding the activity levels of the retained BDMs. Randstad,

however, produced only the activity reports for Baker and Melissa

Tennison, a Hispanic employee, for the two-month period preceding

Baker’s termination. These reports show that Tennison secured more

accounts and had a much higher activity level than Baker during

that period. After investigation, the EEOC issued Baker a right to

sue letter. He then sued Randstad under Title VII and 42 U.S.C. §

1981, alleging that Randstad terminated him because he is black.

Randstad filed a motion for summary judgment, asserting that2 Salge v. Edna Indep. Sch. Dist. , 411 F.3d 178, 184 (5th

Cir. 2005).

5 there is no evidence that its articulated nondiscriminatory reason

for terminating Baker was a pretext for race discrimination. The

district court granted summary judgment to Randstad on two bases.

First, the district court ruled that Baker had failed to establish

a prima facie case of race discrimination because he submitted no

evidence that he was replaced by someone outside the protected

group. Second, the district court concluded that there was

insufficient evidence to create a genuine issue of material fact as

to whether Randstad’s articulated reason for terminating Baker was

pretextual. Baker appeals the district court’s grant of Randstad’s

summary judgement motion, arguing that (1) he established a prima

facie case of race discrimination, and (2) an issue of fact exists

as to whether Randstad’s reason for terminating him is a pretext

for race discrimination.

We have jurisdiction over Baker’s appeal of the district

court’s judgment under 28 U.S.C. §§ 1331 and 1291.

II. ANALYSIS

A. Standard of Review

We review the district court’s grant of summary judgment in

favor of Randstad d e novo

. 2 We shall affirm the district court

when there is no genuine issue of material fact and the moving3 Id.

4 Id.

5 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981(a).

6 411 U.S. 792, 802 (1981). See also Felton v. Polles , 315

F.3d 470, 483-84 (5th Cir. 2002)(noting that when a plaintiff

brings Title VII and § 1981 claims as parallel causes of action,

the claims require the same proof to establish liability).

7 Abarca v. Metro. Transit Auth. , 404 F.3d 938, 941 (5th Cir.

2005).

6 party is entitled t o summary judgment as a matter of law. 3 We

consider the evidence in the light most favorable to the nonmovant, but he must point to evidence that shows that there is a

genuine issue of fact for trial. 4

B. Legal Standard

Both Title VII and § 1981 prohibit employers from taking

adverse employment actions against employees on the basis of race. 5

As there is no direct evidence of discrimination in this case, we

evalu ate Baker’s claims under the burden-shifting framework of

McDonnell Douglas Corp. v. Green

. 6 First, Baker must establish a

prima facie case of race discrimination. This means that Baker

must demonstrate that (1) he is a member of a protected class, (2)

he was qualified for the job, (3) he suffered an adverse employment

action, and (4) similarly situated employees outside the protected

group were treated more favorably than he. 7 Once Baker establishes

a prima facie case of race discrimination, the burden shifts to

Randstad to articulate a legitimate, non-discriminatory reason for8 Id.

9 Randstad waives the issue because in its summary judgment

motion it assumed for the sake of argument that Baker had

established his prima facie case.

Furthermore, the district court erred when it ruled that

Baker failed to establish his prima facie case for failing to

submit evidence that he was replaced by someone outside the

protected class. A plaintiff in a reduction-in-force case is

generally not replaced at all, and thus to establish his prima

facie case, he need not prove that he was replaced by someone

outside the protected class. See Palasota v. Haggar Clothing

Co. , 342 F.3d 539, 576 (5th Cir. 2003).

7 terminating Baker. If Randstad does so, Baker has the ultimate

burden of proving that Randstad’s articulated reason is a pretext

for race discrimination. 8

On appeal, Randstad has waived any argument that Baker did not

establish his prima facie case. 9 Accordingly, we address only the

issue whether there was sufficient evidence to establish that

Randstad’s articulated reason for terminating Barker was a pretext

for race discrimination. Baker contends that (1) the absence of

documentary evidence regarding the activity levels of most of the

other BDMs who were not fired when he was, invokes the spoliation

doctrine and alone establishes an issue of fact as to whether

Randstad’s articulated reason for terminating Baker was pretextual;

(2) the evidence shows that Baker was a better employee than both

Melissa Tennison, a female Hispanic BDM, and Stephen Horton, a

white male BDM; and (3) Randstad engaged in a pattern of laying off

black employees.

C. Misplaced Documentary Evidence and Spoliation10 Caparotta v. Entergy Corp. , 168 F.3d 754, 756 (5th Cir.

1999).

11 Compare id. at 755 (noting that the district court held a

hearing to determine whether the defendant destroyed relevant

evidence in bad faith to ultimately determine whether the

spoliation doctrine applied).

8 Baker asserts that Randstad’s failure to produce full

documentation in support of its decision to terminate Baker invokes

the spoliat ion doctrine and justifies a presumption that the

withheld evidence would have been unfavorable to Randstad. Thus,

argues Baker, this non-production alone raises an issue of fact as

to whether Randstad’s reason for terminating him was pretextual and

exempts him from an adverse summary judgment. Randstad counters

that it simply misplaced the relevant documents.

At the outse t, Baker cites no authority for the proposition

that misplaced or un-produc ed documents establish a p er se

presumption of pret ext in an employment discrimination case.

Furthermore, spoliation is a specific doctrine that requires the

party invoking it to show, inter alia

, that his adversary destroyed

or misplaced the evidence in bad faith. 1 0 Here, Baker neither

specifically alleged that Randstad misplaced the documents in bad

faith nor moved the district court to determine wheth er Randstad

misplaced the documents in bad faith. 11 In fact, Baker never even

moved the district court to compel Randstad to produce the missing

documents. As Baker bears the ultimate burden of proving pretext,

the employer’s destruction or withholding of the missing documents12 See id. at 757 (noting that the plaintiff in an employment

discrimination suit bears the ultimate burden of proof and that

the destruction of documents could unfairly harm him).

9 could very well hav e damaged him. 1 2 Nevertheless, the summary

judgment record on appeal is devoid of evidence addressing whether

Randstad misplaced, withheld, or destroyed the documents i n bad

faith . Therefore, our hands are tied: As there is no evidence of

bad faith, Baker’s spoliation argument fails.

D. Other Evidence

Baker contends that, even absent the aforesaid records, he

presented sufficient evidence to create a genuine issue of material

fact as to whether Randstad’s reason for terminating him was

pretextual. Specifically, Baker points to evidence that he was the

highest revenue generator for Randstad in the Houston market.

Baker also offers evidence that other BDMs whom Randstad did not

fire never secured any accounts at all.

1. Baker’s Revenue

Randstad does not dispute that Baker was the highest revenue

generator in the Houston market. This was because of the Reliant

account, which B aker secured at the beginning of his employment

w ith Randstad. Significantly, however, revenue was neither the

o nly nor the most important factor that Griffin considered in

deciding whom to fire. Instead, Griffin focused on both

productivity and ac tivity levels. Griffin explained that a high

revenue generator would be a proper candidate for termination if he13 Sandstad v. CB Richard Ellis , 309 F.3d 893, 899 (5th Cir.

2002)(“Merely disputing [the employer’s] assessment of [the

employee’s] performance will not create an issue of fact.”).

10 was “living off an account [he] had closed six months before” and

his activity levels were not up to par. As noted, Griffin reviewed

the BDMs’ activity reports and, in so doing, paid special attention

to the BDMs’ activity level s and to new accounts that the BDMs

generated. Furthermore, Griffin focused on the months immediately

preceding the April 2001 reduction in force.

Griffin chose to lay off Baker because he failed to bring in

new business on a consistent, weekly basis and his activity levels

were the lowest in the region: Baker was never able to secure ten

meeting s with decision makers in any week. Moreover, despite

Baker’s revenue generation, his overall productivity levels are not

stell ar under Griffin’s analysis. This is because Baker was

continuing to “live off” the Reliant account. Notably, Baker

closed the Reliant account more than eight months before his

termination, and that particular account had negative profitability

despite its gross revenue generation because of the high costs and

expenses that Randstad incurred in staffing Reliant. Ultimately,

Baker’s argument regarding Griffin’s evaluation of his performance

in light of his high revenue generation does not demonstrate that

Randstad fired Baker because o f his race. 1 3 That argument is

insufficient to impugn Randstad’s articulated, nondiscriminatory

reason for terminating Baker.14 Mayberry v. Vought Aircraft Co. , 55 F.3d 1086, 1091 (5th

Cir. 1995)(internal quotations and citations omitted).

11 2. Tennison’s Performance

Randstad did produce Tennison’s activity reports for the twomonth period preceding Baker’s termina tion. These reports show

that she met or exc eeded Randstad’s requirements for weekly

contacts and meetings and that s he secured seven new accounts

during that period. In comparison, Baker’s activity reports show

that he never met the weekly meetings requirement and secured only

two new accounts during that period.

Baker proffers the declaration of Kimberly Sanders to

c ontradict Tennison’s record. Specifically, Sanders stated that

Tennison had not sold a single account from the time Randstad hired

her through March of 2001. Construing Sanders’s testimony in the

light most favorable to Baker, i.e., assuming that Randstad’s

activity reports for Tennison are erroneous, still does not create

an issue of fact. This is because, even if the reports are proved

to be erroneous, it is undisputed that Griffin relied on them in

making the reduction-in-force determinations, and Tennison’s

purportedly erroneous activity reports nevertheless show her to be

a more productive employee than Baker. “The question is not

whether an employer made an erroneous decision; it is whether the

decision was made with discriminatory motive. Even an incorrect

belief that an employee’s performance is inadequate constitutes a

legitimate, nondiscriminatory rea son.” 1 4 Accordingly, Sanders’s12

statement fails to raise an issue of fact as to whether Randstad’s

articulated reason for terminating Baker was a prete xt for race

discrimination.

3. Horton’s Record

Baker contends that Randstad should have laid off Horton

instead of him because Horton had not secured any accounts from the

time he was hired by Randstad in March of 2001 until the time that

Baker was terminated in April of 2001. Assuming this to be true,

the evidence in the record is undisputed that (1) Baker secured no

new accounts during the same period, (2) Baker failed to fulfill

his activity requirements, and (3) unlike Baker, Horton met his

activity requirements in the weeks preceding Baker’s termination.

Accordingly, Baker’s testimony that Horton failed to secure any new

accounts before his termination is insufficient to raise an issue

of fact as to whether Randstad’s articulated reason for terminating

Baker was a pretext for race discrimination.

E. Pattern of Terminating Black Employees

Finally, Baker insists that Randstad engaged in a pattern of

terminating black employees, and that this pattern raises an issue

of fact as to whether Randstad’s articulated reason for terminating

Baker is pretextual. Although statistical evidence can be probative

of pretext, it is extraordinarily rare that raw numbers can15 E.E.O.C. v. Texas Instruments, Inc. , 100 F.3d 1173, 1185-

86 (5th Cir. 1996)(affirming district court’s order granting

summary judgment to employer and rejecting, inter alia , the

plaintiff’s contention that statistical evidence was probative of

pretext).

16 Id. at 1185.

13 insulate a plaintiff from summary judgment. 15 Indeed, “[t]he

probative value of statistical evidence ultimately depends on all

the surrounding facts, ci rcumstances, and other evidence of

discrimination.” 16

For openers, Baker fails to show that a distinct pattern of

laying off black employees relative to white emp loyees even

existed. In the first round of lay offs late in 2000, Randstad

terminated eight employees in the Houston market: Five were white;

three were black. Of the BDMs terminated in this initial round of

layoffs, only one in the Houston market was selected by Griffin,

and she was white. Baker also asserts that Randstad terminated

four black BDMs (including himself) and six black agents in the

Houston market in 2001. There is also evidence that Randstad laid

off at least one white BDM in the Houston market in 2001 for low

activity levels, but there is no evidence in the record as to the

total number of white employees Randstad laid off at that time. We

cannot conclude from the evidence before us that Randstad engaged

in a pattern of targeting black employees for termination.

Moreover, even if Baker’s numbers had shown a possible

pattern , his argument still fails. This is because statistical17 Id. at 1185.

18 In his deposition, counsel for Randstad asked Baker if

there is any “firm evidence, firm facts, or... information” that

Baker could point to in order to show that Randstad terminated

black employees because of their race. Baker admitted that the

only evidence he could point to was “the number of [black]

people” that Randstad terminated.

14 presentations that do not include analyses of the facts surrounding

the circumstances of the individual employees at issue are

“impotent, without more, to rebut” an employer’s articulat e d,

nondiscriminatory reas on for terminating an employee. 1 7

Significantly, Baker concedes that nothing more than his subjective

belief that black employees were laid off in disproportionate

numbers supports his pattern-of-discrimination argument. Baker

admittedly offers no evidence or analys is apart from the bare

numbe rs to indicate that Randstad engaged in a pattern of

terminating black employees because of their race. 18 Accordingly,

Baker’s pattern-of-discrimination argument fails. In this regard,

we note in passing that the undisputed evidence in the record

before us shows that Randstad had legitimate, nondiscriminatory

reasons for terminating the black BDMs in 2001. Specifically,

Randstad fi red two black BDMs for violating company policy, laid

off one black BDM for poor performance, and the fourt h black BDM

voluntarily resigned.

III. CONCLUSION

Baker fai ls to point to any summary judgment evidence

sufficient to create an issue of material fact whether Randstad’s15

articulated reason for termin ating him was a pretext for race

discrimination. Absent that, Randstad is entitled to summary

judgment as a matter of l aw. The district court’s grant of

Randstad’s motion for summary judgment is

AFFIRMED.