Cuevas v. Harrah's Oprt Co ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50809
Summary Calendar
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MARTIN CUEVAS and RICARDO SALAZAR,
Plaintiffs-Appellants,
VERSUS
HARRAH’S OPERATING COMPANY, INC.,
d.b.a. EMBASSY SUITES HOTEL,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-96-CV-1182)
_________________________
April 8, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
I.
Plaintiffs Martin Cuevas and Ricardo Salazar allege that their
former employer, Harrah’s Operating Company, Inc. (“Harrah’s”),
owner of an Embassy Suites Hotel, violated title VII by discharging
them on the basis of their race, sex, and national origin. Cuevas
had been working as a waiter in the hotel's restaurant for about a
*
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
year on November 22, 1994, when he was terminated. Salazar had
been a restaurant manager for two years when he was terminated on
October 1, 1994. Two months before the terminations occurred,
Terri Stout, a Caucasian female, had assumed the position of Food
and Beverage Manager.
Cuevas presented affidavits to the effect that he was
considered a “good waiter.” About a month before his termination,
however, two waitresses reported to management that Cuevas had been
“double-tipping.” In contravention of Embassy Suites’s restaurant
policy, Cuevas would add a gratuity to the checks of small parties
and allow them to add an additional gratuity on top of the total.
He knew that the restaurant added gratuities only for parties of
five or more. When confronted about his behavior, Cuevas initially
claimed that the computer was not working and then said he was
entitled to the additional tips because he provided “good service.”
Although Salazar was apparently a good manager in most
respects, he exhibited a pattern of tardiness, for which he was
reprimanded four times before his termination. About a week before
his termination, he received a “final warning” regarding his
tardiness. On or about September 22, 1994, Salazar altered the
evaluation of a co-employee without Salazar’s supervisor’s
knowledge or approval. Salazar was ultimately fired for his
continued failure to arrive at work and for falsifying company
records.
II.
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Plaintiffs brought this suit in the district court,
establishing a prima facie case for discrimination under title VII:
plaintiffs were members of a protected class; they were qualified
for the positions held; they were subsequently discharged; and
those positions were ultimately filled by persons not members of
the protected class. In response, Embassy Suites presented
evidence that Cuevas was fired for double-tipping and that Salazar
was fired for tardiness and falsification of documents.
The defendants responded to the plaintiffs’ claims by pointing
to tardiness and dishonesty on Salazar’s part, and overcharging
customer’s on Cuevas’s part, to justify the terminations. Once a
defendant comes forward with one or more non-discriminatory
justifications for a termination, the plaintiff’s initial prima
facie case disappears, and the plaintiff is no longer entitled to
a presumption that the termination was discriminatory. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509-12 (1993). To overcome the
defendant’s response, the plaintiff must show both that each of the
defendant’s justifications was a pretext for impermissible
discrimination and that race was a determinative factor. Grimes v.
Tex. Dep't of Mental Health, 102 F.3d 137, 141 (5th Cir. 1996).
III.
The district court held that plaintiffs failed to meet this
burden because they offered no evidence of discrimination other
than their own conclusions and because they failed to show that the
justifications were pretextual. We agree.
3
Plaintiffs brought forth evidence that purported to show that
Embassy Suites’s justifications were pretextual. In Salazar’s
case, the evidence consisted of his supervisor’s statement that
Salazar was performing at an acceptable level and that Humphrey’s
had given Salazar permission to come in late “when Salazar was in
court conducting 'court-interpreter' duties.” A supervisor of
Stout’s made the decision to terminate Salazar, but plaintiffs
emphasized that the decision was based upon a performance
evaluation in which Humphrey initially rated Salazar as
“acceptable”; Stout insisted on changing the evaluation to
“unacceptable.” Humphreys stated that although he thought Stout
disliked Salazar, he did not think that she disliked Hispanics or
men, and he did not believe that Salazar was terminated because of
his race.
Cuevas presented Humphrey’s statement that Cuevas was a good
waiter, and he allegedly demonstrated that the tickets that formed
the basis of the “double-tipping” evidence were hard to read and
did not state the number of people in the party. Aside from that,
his only evidence of pretext was the fact that Stout did not use
customer complaints to verify the accusations and that the tickets
were unclear. In no way did he impeach the credibility of the two
waitresses who had reported his behavior to hotel management.
Plaintiffs’ evidence proves nothing more than that Stout was
a harsher taskmaster than was Humphreys. Contrary to their claims,
plaintiffs have not offered evidence tending to establish that
Stout lied; at most, they have offered evidence demonstrating that
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she was hasty in passing judgment upon them. It is highly unlikely
that a finder of fact would conclude that Embassy Suites did not
actually terminate them for the reasons offered.
Furthermore, to succeed on their discrimination claim,
plaintiffs must do more than prove that Embassy Suites’s
justifications were false. Now that the defendant has met its
burden of producing nondiscriminatory reasons for its conduct, the
plaintiffs must demonstrate both that the justifications were
pretextual and that race was a determinative factor. St. Mary’s,
509 U.S. at 509; Grimes, 102 F.3d at 141.
Plaintiffs have offered no evidence affirmatively to
demonstrate a discriminatory motive. They present no evidence of
derogatory racial comments or sexist attitudes, no consistent
pattern of hiring or firing members of certain groups, and no other
facts to suggest that Stout had a racist motive. To be sure, the
Supreme Court has stated that, in some cases, discrimination may be
inferred from the pretextual nature of the defendant’s
justifications. St. Mary’s, 509 U.S. at 511. The Court has also
stated, however, that “the defendant need not persuade the court
that it was actually motivated by the proffered reasons.” Tex.
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
A holding “that rejection of the defendant’s proffered reasons
compels judgment for the plaintiff disregards the fundamental
principle of [FED. R. EVID.] 301 that a presumption does not shift
the burden of proof, and ignores our repeated admonition that the
Title VII plaintiff at all times bears 'the ultimate burden of
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persuasion.'” St. Mary’s, 509 U.S. at 511.
Once the defendant offers any non-discriminatory reasons at
all, the burden shifts to the plaintiffs to prove not only that the
defendant did not terminate them for the reasons offered, but also
that the defendant terminated them for some other, improper,
reason. The pleadings in this case demonstrate that the plaintiffs
would fail to convince a reasonable jury of this. Even if the jury
were to find that Stout did not terminate the defendants for the
reasons stated, its decision on that issue would be a close one;
the record demonstrates that Stout had ample reason to believe the
plaintiffs were not performing adequately, even if she was
ultimately hasty or incorrect in her belief. No reasonable jury
would use such borderline evidence to infer the requisite
discriminatory intent. Accordingly, the plaintiffs have failed to
present a genuine material issue of fact on the question of Stout’s
discriminatory intent.
Plaintiffs argue that the district court applied the wrong
legal test by requiring plaintiffs to demonstrate that they were
terminated solely for discriminatory reasons, rather than on the
basis of a combination of discriminatory and other factors. On the
contrary, the district court correctly applied our circuit’s test,
which requires that race be “a determinative factor” in the
termination. See Grimes, 102 F.3d at 141. Nothing in the district
court’s opinion suggests otherwise. In any event, our de novo
review leads us to the conclusion that the plaintiffs failed to
create a reasonable inference of any discriminatory intent.
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AFFIRMED.
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