Burrell v. Dr. Pepper/Seven up Bottling Group, 06-10267.

• Decision Date: 20 March 2007
• Docket Number: No. 06-10267.,06-10267.
• Citation: 482 F.3d 408
• Parties: Darrell L. BURRELL, Plaintiff-Appellant, v. DR. PEPPER/SEVEN UP BOTTLING GROUP, INC.; Dr. Pepper/Seven Up Bottling Group, L.P., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.3d 408

Darrell L. BURRELL, Plaintiff-Appellant, v. DR. PEPPER/SEVEN UP BOTTLING GROUP, INC.; Dr. Pepper/Seven Up Bottling Group, L.P., Defendants-Appellees.

No. 06-10267.

United States Court of Appeals, Fifth Circuit.

March 20, 2007.

Yona Rozen (argued), Karla S. Jackson, Gillespie, Rozen, Watsky, Motley & Jones, Dallas, TX, for Plaintiff-Appellant.

Brent L. Dyer (argued), Michael C. Kelsheimer, Looper, Reed & McGraw, Dallas, TX, for Defendants-Appellees.

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

Before DAVIS and STEWART, Circuit Judges, and GODBEY^*, District Judge.

W. EUGENE DAVIS, Circuit Judge:

Darrell L. Burrell ("Burrell") appeals the dismissal on summary judgment of his employment discrimination and retaliation claims against defendant Dr. Pepper/Seven Up Bottling Group, L.P. ("Dr. Pepper"). We AFFIRM in part and VACATE and REMAND in part.

I.

Burrell, an African-American male, began his employment with Dr. Pepper as the Corporate Purchasing Manager in May 2001. Burrell initially worked under Penny Soriano ("Soriano"), Dr. Pepper's Vice President of Purchasing, to centralize and manage national purchasing for Dr. Pepper. Burrell's responsibilities included assisting in both the negotiation and management of various term contracts with Dr. Pepper suppliers.

In May 2002, Soriano resigned and recommended that Burrell be hired to replace her as Vice President of Purchasing. Burrell spoke with Tom Taszarek ("Taszarek"), Executive Vice President of Administration, expressing his interest in being promoted to the vacant position. Ultimately, however, Dr. Pepper did not promote Burrell and instead sought a replacement from outside the company. The parties dispute the reason given by Dr. Pepper for its decision not to promote Burrell. Burrell alleges that Dr. Pepper told him that it wanted to hire someone with more "purchasing experience." On the other hand, Dr. Pepper states "purchasing experience in the bottling industry" was the relevant criteria. In June 2002, Burrell suggested to Taszarek that his failure to be promoted was actually the result of racial discrimination and he gave Taszarek a copy of the book Roberts v. Texaco: A True Story of Race and Corporate America. Burrell told Taszarek that his treatment at Dr. Pepper was analogous to the experience of the plaintiff employee in the litigation detailed by the book.

In October 2002, Dr. Pepper hired Ted Koester ("Koester"), a white male, to fill the vacant position of Vice President of Purchasing. Immediately preceding his arrival at Dr. Pepper, Koester served as the Logistics Manager for a Coca-Cola distribution center in San Antonio. He held that position for approximately two years, but had been at Coca-Cola for 13 years. According to his resume, Koester, as Logistics Manager, was responsible for the management of a 27 million case distribution center with a direct staff of 99 people. In addition, Koester had experience in the negotiation of contracts with carriers and the purchasing of production/warehouse materials. In his deposition Koester explained that one such contract was valued at near 30 million dollars.

Although Burrell was not promoted to the position of Vice President of Purchasing, the parties agree that he took on many duties associated with the position after the departure of Soriano in May 2002, through Koester's hiring in October 2002, and continuing into February 2003 while Koester became familiar with the company and his new job. Burrell reported directly to CEO Jim Turner ("Turner") during this time and aided in the company's purchasing functions. Dr. Pepper concedes that Burrell got high marks for his work during this transition period. Burrell received a salary increase and also received a bonus in February 2003 for his performance. In addition, Burrell was selected in March 2003 to attend an annual company trip designated for high performing employees.

Despite these positive performance indicators, Burrell and Koester clashed, almost from the beginning of Koester's employment. During their first telephone conversation in October of 2002 (just after Koester was hired), Burrell says he became concerned about Koester's qualifications when Koester allegedly admitted to him that he had no purchasing experience and that Burrell would have to teach him purchasing. During that same conversation, Burrell says he became offended when Koester stated that he had no qualms about firing employees and would even fire his own mother; in response, Burrell hung up on Koester. Later that month, Burrell claims that Koester attempted to tell him a racist joke. In addition, around the same time, Koester allegedly told Burrell that there was something about Burrell that intimidated him. For his part, Koester alleges that Burrell engaged in various insubordinate acts during this period including failing to submit weekly reports and vacation requests as well as refusing to complete an assigned project.

These exchanges prompted several meetings between Burrell and Taszarek in which Burrell would complain about Koester's behavior and lack of qualifications. In one meeting with Taszarek, in the Spring of 2003, Burrell compared his situation to that of class action litigants who had alleged racial discrimination against Coca-Cola. Burrell gave Taszarek copies of two magazine articles that detailed the lawsuit.

The conflict accelerated in July 2003 when Koester gave Burrell a negative performance review. The report rated Burrell as marginal and unsatisfactory (the two lowest ratings) in five of six categories of performance. Burrell requested and was granted permission to respond in writing to the evaluation and he delivered his written response (with copies to the CEO Turner and Taszarek) on August 4, 2003. Burrell's response characterized Koester's evaluation as a "completely inappropriate and unprofessional attack on [his] character" and went on to dispute the accuracy of the evaluation through three pages of supporting facts. Further, Burrell questioned Koester's ability to give an accurate evaluation for the previous year since Koester had not arrived until October 2002 and, even then, Burrell continued reporting directly to the CEO until February 2003. On the same day that Burrell's response was delivered and after consultation between Taszarek and Turner, Dr. Pepper terminated Burrell's employment.

After refusing a conditional severance package, Burrell filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC") over Dr. Pepper's failure to promote him and his subsequent termination. After receiving a right-to-sue letter from the EEOC, Burrell filed suit in district court for (1) unlawful discrimination for refusal to promote, (2) unlawful discrimination for termination based upon race, and (3) unlawful retaliation for termination based upon previous complaints of race discrimination.

Dr. Pepper moved for summary judgment. In support, Dr. Pepper asserted that Burrell had failed to sufficiently refute its legitimate, non-discriminatory reason for hiring Koester rather than promoting Burrell: Koester's greater experience in bottling. On the claims related to Burrell's termination, Dr. Pepper alleged that the termination was because of insubordination, and specifically cited (1) Burrell's failure to turn in weekly reports and vacation requests to Koester; (2) Burrell's complaints about Koester's qualifications; (3) Burrell's refusal to research possible cost and supplier reductions in regards to a company project; and (4) Burrell's written response to Koester's evaluation.

The district court granted Dr. Pepper's motion for summary judgment, dismissing all of Burrell's claims. On the failure to promote claim, the district court held that Burrell could not demonstrate that Dr. Pepper's reason was a pretext for discrimination because the evidence did not establish that he was "clearly more qualified" than Koester. On the termination claims, the district court held that Burrell had not raised a genuine issue of fact on the legitimacy of Dr. Pepper's proffered reason for his termination, namely, insubordination.

II.

We review the district court's grant of summary judgment de novo.¹ Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."² An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party.³ A fact issue is "material" if its resolution could affect the outcome of the action.⁴ We construe all facts and inferences in the light most favorable to the non-moving party when reviewing a summary judgment.⁵

III.

A claim of employment discrimination can be proven through direct or circumstantial evidence.⁶ Where, as here, the plaintiff does not produce any direct evidence of discrimination, we apply the well-known McDonnell Douglas burden-shifting framework as modified and restated by this court.⁷

Under the modified McDonnell Douglas approach, the plaintiff must first demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and if the defendant meets its burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact that either (1) the employer's reason is a pretext or (2) that the employer's reason, while true, is only one of the reasons for its conduct, and another "motivating factor" is the plaintiff's protected characteristic.⁸

A.

Dr. Pepper concedes that Burrell has established his prima facie case on his failure to promote claim: (1) he belongs to a protected class; (2) he applied for and was...