1 Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-10359

Summary Calendar

MARJORIE A. ZIELKE,

Plaintiff-Appellant,

VERSUS

GTE DIRECTORIES CORP., ET AL.,

Defendants,

GTE DIRECTORIES CORP., and

GTC DIRECTORIES SERVICE CORP.,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

(4:94 CV 206 A)

(August 31, 1995)

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM: 12

Marjorie Zielke appeals from summary judgment entered in favor

of her former employer, GTE D irectories Corporation, in this sex

discrimination suit. Zielke's original complaint alleged that

disparate treatment on the basis of sex occurred after she was

transferred to GTE's mark eting department in 1991 and continued

until she was discharged from GTE in 1993, all in violation of 42

U.S.C. § 2000e, et seq. (1994). The district court granted summary

judgment in favor of GTE. We affirm.

Zielke's Transfer and the Reorganization

From 1986 until 1991 Majorie Zielke was employed in GTE's

corporate development and strategic planning department. In 1991,

GTE's president recruited Zielke to transfer from the corporate

development and strategic planning department, where she held the

position of d irector, to GTE's marketing department. Zielke

alleges that she was promis ed several inducements that were

material to her decis ion to accept the transfer including, i nter

alia: (1) retention of her present rank, compensation and benefit

package; (2) a four-member staff; and (3) responsibil ity for

certain key areas of product development. Zielke was also promised

that she would not be supervised by Phillip Abdelnor, then a

manager in GTE's marketing department.

Zielke's transfer did not go as she anticipated. Initially,

she received fewer staff members than she was promised. Several

months later, marketing vice-presid ent Clint Pollard decided to

reorganize the department to eliminate inefficiency and reduce the

number of people reporting directly to him. Forty-two employees,3

both male and female, were laid off. Many other employees received

different titles and were subject to a n ew reporting structure.

Zielke's posit ion was reclassified as that of "manager," rather

than the more prestigious "director." She also lost her parking

space and was required to share a secretary with another employee.

Zielke did not, however, suffer any decrease in salary or other

employee benefits.

Zielke was also placed under the supervision of marketing

director Phillip Abdelnor. Zielke claims that Abdelnor was

difficult to work with, that he often changed her job objectives

and then held her responsible for the original objectives, that he

told her male subordinates that they did not have to work for her,

and that he gave her false and malicious job performance reviews.

It is undisputed that Abdelnor and Zielke quarreled about her

performance both publicly and privately on more than one occasion

in late 1992 and early 1993 and that Abdelnor cautioned Zielke that

he considered her attitude to be insubordinate.

Zielke's Discharge

In January 1993, Zielke was terminated from her position with

GTE. According to GTE, Zielke was discharged because she (1)

altered a purchase requisition form to authorize a n expenditure

beyond her authority after her supervisor had expressly rejected

the requested amount; (2) f ailed to provide reports and plans

requested by her supervisor; (3) failed to eliminate language from

promotion al literature that promised GTE would provide tracking

services, aft er it became apparent that such service was not4

feasible; (4) authorized two expenditures far in excess of her

signing authority; and (5) was insubordi nate in these and other

acts.

(1) Alteration of the Purchase Requisition

In November 1992, Zielke asked Abdelnor to sign an "open"

purchase requisition for $20,000. Because that procedure varied

from that usually employed by GTE, and because he could not

ascertain what goods and services were being procured with the

requisition, Abdelnor requested further information from Zielke.

In mid-December, Abdelnor received a message that the requisition

had to be signed immediately. Because he still had not received

the requested informat ion from Zielke, Abdelnor reduced the

purchase requisition amount from $20,000 to $10,000, which was the

upper limit of Zielke's signing authority. Zielke subsequently

obtained the form, altered the $10,000 figure back to $20,000 and

submitted the form to purchasing, without Abdelnor's approval.

Zielke does not deny that she changed the form without

contacting Abdelnor first, but claims that she noted on the bottom

of the form that the change was n ecessary and sent a copy to

Abdelnor. GTE claims that Abdelnor did not receive the notated

form until much later. GTE further responds that Zielke's note

served to clarify only the propriety of the amount requested, and

not the insubordination inherent in taking that course of action.

Upon learning that Zielke had changed the form, Abdelnor contacted

GTE's human resources department about the matter.

(2) Failure to Complete Job Objectives and Insubordination5

Zielke's priority project in the marketing department was a

new couponing project called "special ed itions." As originally

contemplated, GTE would "track," or gather discrete information

about, persons redeeming coupons issued by GTE for their customers.

Tracking is intended to aid advertisers' efforts to identify and

target a particular market. In October 1992, GTE approved a

"special editions" business plan pro posed by Zielke. That plan

included a tracking feature. By early 1993, however, Zielke had

proposed no concrete method for achieving the tracking feature and

GTE management, particularly Abdelnor, was concerned about whether

tracking was a viable feature of the program. On January 6, 1993,

Zielke and Abdelnor met and Abdelnor requested a written plan for

the tracking feature. When that plan was not received, Abdelnor

instructed that tracking be removed from th e "special editions"

plan. In the January 6 meeting, Abdelnor also expressed concern

over Zielke's failure to submit a complete sales plan for the new

product and assigned a January 8 deadline for that plan. The next

day, Abdelnor discovered that Zielke ha d approved two "special

e ditions" expenditures, which totaled $80,850, without his prior

authorization . At that time, it is undisputed that Zielke's

signing authority was limited to $10,000.

On January 8, Abdel nor sent Zielke a memo detailing several

deficiencies in Zielke's performance that had been discussed at the

January 6 meeting. In addition to the matters discussed above, the

memo stressed Zielke's response to Abdelnor as a supervisor and her

open "defiance" of his authority in private meetings and in front6

of other employees. Subsequently, Abdelnor discovered that Zielke

had not removed the promise of tracking from final versions of the

promotional literature for the "special editions" product.

Abdelnor further claims that he never received the requested sales

plan. Zielke claims that the sales plan was sent facsimile on the

d ate it was due and that she made handwritten changes to the

advertising copy, which deleted the promise of tracking. Zielke

does not dispute, however, that she altered t he purchase

requisition form or that she approved expenditures in excess of her

authority, which GTE claims, in addition to subordination, would

have justified her termination. On January 14, Zielke was given an

opportunity to explain her position in a meeting with Abdelnor and

a representative of GTE's human resources department. On January

15, 1993, Zielke was discharged.

APPLICABLE LAW

We review summary judgment de novo

, applying the same standard

as did the district court. Garcia v. Elf Atochem N. Am. , 28 F.3d

446, 449 (5th Cir. 1994). The facts are reviewed in a light most

favorable to Zielke, the non-movant. I d

. Summary judgment is

appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgm ent as a matter of law. F E D

. R.

C IV

. P. 56( C ). Such a finding may be supported by the absence of

evidence to establish an essential element of the non-movant's

case. H ibernia Nat'l Bank v. Carner

, 997 F.2d 94, 98 (5th Cir.

1993).2 Prima facie proof of disparate treatment discharge requires

that plaintiff demonstrate that she: (1) is a member of the

protected class; (2) was qualified for the job held; (3) was discharged; and (4) was either replaced by a person outside the

protected class or that the employer re tained similarly situated

employees outside the protected class. S ee Mayberry v. Vought

Aircraft Co.

, 55 F.3d 1086, 1089 (5th Cir. 1995); Wilson v. Belmont

Homes , 970 F.2d 53, 57 (5th Cir. 1992); Smith v. Wal-Mart Stores

, 891 F.2d 1177, 1180 (5th Cir. 1990).

7 Zielke offers no direct evidence of sex discrimination. Thus,

h e r claim is controlled by McDonnell Douglas ' burden-shifting

framework. To establish a prima facie case of sex discrimination,

Zielke must show that GTE either (1) filled her pos ition with a

male empl oyee or (2) retained similarly situated male employees,

w hile discharging Zielke. 2 There is no dispute that Zielke was

replaced by a female. Zielke maintains, however, that two male

employees who engaged in similar or more egregious misconduct were

retained, while she was discharged.

GTE claims to have termin ated Zielke, in part, because she

changed a purchase requisition form to reflect a $20,000 purchase,

after her supervisor h ad expressly rejected the request for

$20,000, authorizing only $10,000 instead. Zielke alleges that a

male employee, Rudluff, altered a similar company document, after

it had been signed by his supervisor on at least two occasions and

that Rudluff was not terminated.

Rudluff was not an employee in a similar situation as Zielke

and his actions were not analogous to those taken by Zielke.

R udluff's position as a "systems administrator" in the marketing

department required that he requisition suitable computer equipment

for in-hous e use by GTE employees. Requests for computer8

equipment, which were made on "PC and Intelligent Workstation

Services Request" forms, were often completed in pencil so that

Rudluff could change the form if required. Rudluff's amendment of

PC Services forms was a pre-authorize d practice that was

contemplated as part of his job by relevant management personnel.

Unlike purchase requisition forms, PC Services forms do not require

that dollar amounts be entered. Indeed, the structure of the form

indicates that its primary purpose is to record computer needs

(which may then be filled from existing equipment or ordered), not

to authorize expenditure for those needs.

In contrast, Zielke increased the amount authorized on a

purchase requisition form, with knowledge that her supervisor had

already reduced the amount she requested, and without contacting

him prior to taking that action. Further, Zielke does not dispute

that she also authorized other expenditures in excess of her

signing authority. That fact alone is sufficient to distinguish

Rudluff's pre-authorized alt eration of company forms on matters

falling within his assigned authority from Zielke's actions.

Zielke also claims that C r andall, a marketing department

director, was a similarly situated male for purposes of her prima

facie case. Crandall was apparently involved in an ongoing sexual

relationship with one of his subordinates, which was discovered by

Pollard, GTE's marketing vice-president. Instead of being

terminated, Crandall was allowed to move to a lower position with

a cut in pay. Crandall's behavior, Zielke argues, is at least as

bad, if not worse, than her own insubordination, poor performance3 Zielke initially claimed that GTE engaged in a continuing

pattern of discrimination against her that began with her transfer

to GTE's marketing department and conti nued until her discharge.

On appeal, Zielke argues only her discriminatory discharge claim.

Therefore, it is unnece ssary to consider GTE's argument that

Zielke's disparate treatment claims related to GTE's reorganization

are time-barred because they were based on conduct occurring more

9 and alteration of company documents. Crandall's off-duty, offpremises indiscretions do not place him in a similar position as

Zielke, and the relationship between the two incidents is too

remote to be credible evidence that GTE terminated Zielke because

of her sex.

Zielke failed to establish a prima facie case of

discrimination. Nor is there any other evidence that GTE's

asserted r easons for Zielke's discharge were a mere pretext for

discrimination. Zielke does not deny that she changed the purchase

r equisition form or that she authorized expenditure in excess of

h er signing authority. She does not deny that she and Abdelnor

argued frequently about the scope of her responsibilities and her

responsiveness to his assignments. See Mayberry v. Vought Aircraft

Co.

, 55 F.3d 1086, 1091 (5th Cir. 1995); Little v. Republic

Refining Co. , 924 F.2d 93, 97 (5th Cir. 1991) (even an employer's

incorrect belief that an employee's performance is inadequa t e

constitutes a legitimate nondiscriminatory reason for termination).

Zielke thus r etained both the burden of production and the

burden of persuasion on the ultimate is sue of whether GTE

intentionally discriminated against her on the basis of sex.

Zielke offers scant evidence that GTE's actions were motivated by

her sex. 3 Zielke claims that she and one other female were demotedthan 300 days before she filed an administrative charge with the

EEOC. S ee 42 U.S.C. § 2000e-5(e)(1). GTE also argues that §

2000e-5(e)(2) precludes not only claims based on conduct occurring

out side the filing period but also any e vidence of conduct

occurring outside the filing period. That issue is also

unnecessary. Assuming arguendo the evidence offered by Zielke of

disparate treatment in the reorganization was admissible, it simply

is not sufficiently probative to create a fact issue as to

discriminatory intent on her discharge claim.

opin\95-10359.opn

10 from director to manager as part of GTE's reorganization. Zielke

does not compare that figure to the number of men demoted. What is

clear from the record, however, is that the reorganization affected

in excess of 42 employees and that, as reconstituted, the marketing

department ha d an equal number of male and female directors.

Zielke's remaining evidence of discriminatory discharge, that

neither Rudluff nor Crandall were fi red, is equally unavailing.

There is n o evidence to suggest that Rudluff's activities, like

Zielke's, were in direct contravention of her supervisors expressed

w ishes. Crandall's alleged indiscretions did not pose a similar

threat to GTE's business operations as did Zielke's defiant breach

of rank. While the record might raise a fact issue as to whether

Zielke received the benefit of her bargain when she transferred to

marketing or whether management treated her harshly or unfairly, it

does not raise a genuine issue of material fact on the issue of

whether GTE intentionally discriminated against Zielke on the basis

of her sex.

The district court is AFFIRMED

.