Ray v. Tandem Computers, Inc.

• Decision Date: 11 September 1995
• Docket Number: No. 94-11137,94-11137
• Citation: 63 F.3d 429
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1338, 66 Empl. Prac. Dec. P 43,734 Rose Marie RAY, Plaintiff-Appellant, v. TANDEM COMPUTERS, INC., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 429

63 F.3d 429

68 Fair Empl.Prac.Cas. (BNA) 1338,

66 Empl. Prac. Dec. P 43,734

Rose Marie RAY, Plaintiff-Appellant, v. TANDEM COMPUTERS, INC., Defendant-Appellee.

No. 94-11137

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 11, 1995.

Janette Johnson, Jane Legler Byrne, Dallas, TX, for appellant.

Richard Kobdish, Jr., R.S. Ghio, Fulbright & Jaworski, Dallas, TX, for appellee.

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

Before POLITZ, Chief Judge, DUHE 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 sales representative. Initially her sales were low, but her performance improved 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 its 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 as a replacement. Ray disputed the reassignment and Tandem's failure to reserve in her favor all of the commissions earned within 90 days of the reassignment. Ray complained to Keister's superiors and then 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 of 1989 Koenigs transferred to California and it became 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 they should not do business in a bar, and informed his superiors that the atmosphere was inappropriate for female sales representatives.

When Koenigs returned to the Dallas office in 1991, Keister reassigned the Mobil account to him, granting Ray an unprecedented one year reservation of commissions. In place of the Mobil account Tandem 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 of his well developed contacts within that organization. Incensed, Ray gave the manager a most vulgar 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 revenue goal. In each of the next three years, 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 revenue 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 employment, retaliation ⁴ in her 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 in 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 sex 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 Tandem 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, Tandem maintained that Ray's request for a transfer to another office was not processed after Ray told her supervisor that she did not want to move. In articulating these reasons, Tandem met its burden of production. ¹⁰

We thus turn to the ultimate 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 period actions. ¹² First, she contends that the pre-limitations 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 significantly better relations with Mobil than did Ray and that she requested the 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 a lunch meeting at Hooters restaurant is evidence 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 discriminatory environment is further demonstrated by Keister's alleged statement 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 comment, 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 that 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 suited for the position because of his strong contacts and extensive experience with key Mobil personnel. 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 a PIP, she fails to controvert Tandem's evidence that other similarly situated employees, both male and female, were treated the same. ¹⁹ 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. 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 actions were pretextual. Although Ray makes several conclusionary assertions that her supervisors...