492 F.3d 589 (5th Cir. 2007), 06-20370, Nasti v. CIBA Specialty Chemicals Corp.

Docket Nº:06-20370.
Citation:492 F.3d 589
Party Name:JoAnne Mackay NASTI, Plaintiff-Appellant, v. CIBA SPECIALTY CHEMICALS CORPORATION, Defendant-Appellee.
Case Date:July 12, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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492 F.3d 589 (5th Cir. 2007)

JoAnne Mackay NASTI, Plaintiff-Appellant,



No. 06-20370.

United States Court of Appeals, Fifth Circuit.

July 12, 2007

Page 590

Gregg M. Rosenberg (argued), Gregg M. Rosenberg & Associates, Houston, TX, for Nasti.

Teresa S. Valderrama (argued), Baker Botts, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This appeal arises from JoAnne Nasti's claims against CIBA Specialty Chemicals Corporation for sex discrimination and defamation. Nasti appeals the district court's summary judgment ruling for CIBA. We affirm.


Nasti began her employment with Ciba in 1997. In 2002, Nasti accepted the position of Global Account Executive and became the manager of Ciba's Dow Global account, a position Ciba classified as "Grade 11." At that time, Nasti was designated at "Grade 10." Ciba management informed Nasti that her personnel ranking would remain at Grade 10 until she demonstrated her ability to fulfill the requirements of the position and manage a Grade 11 account.

In 2003, Nasti communicated with Stephan Bocken, President of Ciba's Paper Division in Switzerland, who expressed an interest in discussing a possible position for Nasti in his division. In October 2003, Nasti met with David Almond, a sales director who reported to Bocken, to discuss a potential sales manager position. Nasti indicates that she was later informed by Bocken and Almond that they had been told that she was on a performance improvement plan and was "untouchable" in the company.

Ciba concedes that Nasti met with Almond to discuss a possible position in Bocken's division; however, Ciba asserts that the position for which Nasti interviewed had not yet been approved for recruitment and ultimately never developed into an opening. Rather, Almond's segment decided to assign the duties that would have been performed by the new manager to existing account managers and then used the opening to replace a different key role in the division that Nasti was not qualified to hold.

Also in 2003, Nasti agreed to assist with Bostik Findley, one of Ciba's smaller clients, after a Ciba competitor offered the Bostik Findley facility in Milwaukee a low price on a product. In August 2003, Nasti visited Bostik Findley's Milwaukee facility with Chris Fagouri, the Ciba representative who was the primary contact for the Bostik Findley account. Nasti combined this trip to Bostik Findley with a personal trip to see her daughter in South Bend, Indiana, which Nasti had already scheduled. To accommodate the need for the meeting, Nasti adjusted her return flight so that she would be able to meet with Bostik Findley representatives on Monday, August 25, 2003. Nasti used her personal frequent flyer miles for the trip, and Ciba incurred no expense for Nasti's airfare, despite the fact that Nasti was entitled to charge the tickets to Ciba under company policy. At the August 25 meeting, Nasti and Fagouri met with Bostik Findley representatives Barb Brown, Gary Delzel, and

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Gary Wilkes, who agreed to consider a Ciba product that could match the pricing offered by Ciba's competitor.

Nasti then scheduled a follow-up visit in Milwaukee with Barb Brown for September 22, 2003. Due to Chicago's close proximity to Milwaukee, Nasti booked a non-refundable ticket for the trip through Chicago. A week later, Nasti learned that Gary Delzel had replaced Brown in her purchasing role at Bostik Findley. On September 19, Nasti departed for Chicago and called Gary Delzel from the airport to confirm the Monday meeting. Nasti discovered that Brown had not informed Delzel of the meeting; however, because she had booked a non-refundable ticket, she decided to make the trip and planned to meet with Bostik Findley's technical personnel who would be evaluating Ciba's product. Upon arriving in Chicago, Nasti drove to South Bend, Indiana, to see her daughter and brother. Nasti testified that it was "a routine practice and allowable at Ciba to combine business and personal matters while traveling, especially over a weekend."

On Saturday, September 20, Nasti learned that she would be able to schedule an urgent meeting for her major ExxonMobil account on September 25, 2003. Nasti therefore decided to return to her office in Houston on Monday, September 22 without visiting the Bostik Findley facility, so that she could begin planning for the ExxonMobil meeting. On September 22, Nasti flew to Houston and went directly to her office, where she participated in conference calls with Becherer and others regarding the ExxonMobil account.

Nasti submitted expense reports seeking reimbursement for two trips to Bostik Findley, one in August and one in September. For the September trip, Nasti sought reimbursement for her rental car, dinner, tolls, and airport parking, for a total of $270.00. In November 2003, Becherer asked Nasti to explain the expenses and to submit call reports, which are documents detailing client meetings, as Ciba's protocol required. Nasti forwarded to Becherer a call report for the August trip, which she had previously submitted to him. Nasti also submitted to Becherer a call report detailing the second trip in September. This call report indicated that Nasti had "scheduled this meeting with Gary Wilkes to discuss and close." The call report then stated that "Gary began the meeting .... He asked why we hadn't yet provided a sample and I showed him the shipping documentation. He excused himself from the table and returned with the sample in his hand. He had found it on Barb's desk."

Nasti testified in her affidavit that Becherer was familiar with her need to abandon the September Bostik Findley trip in order to return to Houston to plan for the ExxonMobil meeting, as Becherer had participated in the conference calls with her on September 22. Nasti assumed that Becherer needed her to satisfy internal auditing standards for the rental car expense and wrote the call report with this in mind. Nasti alleges that she had no intention of deceiving anyone and wrote the call report to memorialize what took place during the telephone calls that had substituted for her intended visit to the Bostik Findley facility. Nasti also maintains that the charges for which she had sought reimbursement were legitimate business expenses.

Becherer testified by affidavit that he found Nasti's call report for the September trip troubling. Nasti had submitted the report only after he asked her to document expenses that she had already turned in for reimbursement. Becherer had also instructed Nasti to make only one visit to the Bostik Findley facility in Milwaukee

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and thereafter to handle the account from Houston. Finally, Becherer felt that the report lacked "meat" and "failed to show why another visit to Bostik Findley's Milwaukee facility was necessary." Becherer wondered whether the trip had actually occurred.

By this time in late 2003, Ciba's management had begun discussing whether or not Nasti had a future at Ciba. Nasti's managers felt that while Nasti had strong business skills, she had also demonstrated sufficient deficiencies in key areas such as team-building, counseling employees, listening to peers, enlisting support, and providing feedback. Around the Thanksgiving holiday, Nasti's various managers, with input from Ciba's Human Resources group, decided to terminate Nasti for these performance reasons. The group chose not to discharge Nasti prior to the holidays, but rather to wait until January 2004.

Between the time when Ciba management decided to terminate Nasti in late November 2003 and efforts to arrange a meeting with Nasti in January 2004, Becherer followed up on the call report Nasti had previously submitted for the September trip to the Bostik Findley facility. After Becherer contacted Bostik Findley and learned that the September meeting had not taken place, Becherer discussed Nasti's call report with his supervisor, Bill Baker, and Human Resources manager Gregory Policastro. Becherer, Baker, and Policastro concluded that Nasti had submitted a false call report. Because they believed that Nasti's call report overshadowed the existing issues concerning her performance, they decided to terminate Nasti's employment for the allegedly false call report and the submission of expenses in connection with the call report.

Because Nasti had taken a disability leave of absence in early January 2004, Policastro and Becherer informed Nasti of her termination in a telephone call, which took place on January 20, 2004, and in which her husband, Gary Nasti, participated. Policastro testified that when first asked about the second Bostik Findley trip in September 2003, Nasti maintained that she had attended this second meeting at the customer's location. After Becherer told Nasti that he had contacted Bostik Findley and learned that the second meeting did not take place, Nasti explained that she had cancelled the trip in light of the ExxonMobil...

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