Garza v. Prestige Ford ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10382
Summary Calendar
KARLA GARZA,
Plaintiff - Appellant,
VERSUS
PRESTIGE FORD GARLAND LIMITED PARTNERSHIP, doing business as
Prestige Ford,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:00-CV-400)
September 26, 2001
Before JOLLY, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
I. PROCEEDINGS BELOW
Pursuant to a complaint filed with the Equal Employment
Opportunity Commission (EEOC), Karla Garza brought a Title VII
*
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opinion should not be published and is not precedent except under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.
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claim of discrimination on the basis of sex against her former
employer, Prestige Ford. She subsequently added a claim of
impermissible retaliation by Prestige Ford in reaction to her
lawsuit. Prestige Ford moved for summary judgment under FED. R.
CIV. P. 56. Following a hearing on that motion, the trial court
granted summary judgment for Prestige Ford. Garza appeals the
grant of summary judgment (1) as to her Title VII claim of sex
discrimination; (2) as to her claim of retaliation; and (3) in
light of her claim of serious credibility issues on the part of
Prestige Ford’s representatives. Garza has also asked whether it
would have been error if the trial court had granted summary
judgment on the issue of whether she had sustained damages. The
opinion of the district court did not address the issue of damages
nor base its judgment on any determination of Garza’s claim for
damages. Therefore, we will not address that issue. The judgment
of the district court is AFFIRMED.
II. BACKGROUND
Prestige Ford hired Garza as a used car salesperson although
she had no experience in car sales. She did have some experience
in retail sales, which led Prestige Ford to give her an opportunity
to “sink or swim,” although the dealership did not have a formal
training program for novices. She contends that she successfully
sold five automobiles in eight days between being hired on April 22
and being terminated on or about May 3, 1999. Prestige Ford
asserts that Garza was unable to close any of those sales on her
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own, required the assistance of other salespersons (including her
brother, who was also employed by Prestige Ford), objected to
splitting her commissions with those other salespersons after they
had assisted her and was generally disruptive to the conduct of
business because of her inexperience.
Supervisor Pablo Villarreal ultimately told her she would be
terminated as a car salesperson. The termination document reflects
the reason for her termination as her lack of experience. Mr.
Villareal offered Garza an alternative position assisting another
salesperson, from which she could gain the necessary skills, but
she refused. Garza asserts that Mr. Villarreal initially told her
that she was being terminated because she could not work at
Prestige Ford’s place of business while her brother was also
employed there. She challenged Villarreal’s statement on the basis
that there were other sets of brothers working at the dealership
and claims he then changed his stated reason of termination to
Garza’s lack of experience. Finally, Prestige Ford arranged a job
for Garza with Skyline Ford, a dealership which had a formal
training program.
Garza remained with Skyline for four months and resigned in
September, 1999. She worked for the Accident and Injury Clinic
until December, 1999, when she quit to take a trip to Mexico.
On her return in February, 2000, Garza took a job with
Allstate Insurance Company under Agent Teresa Fuston. Ms. Fuston
later received a phone call from Juan Carlos Olvera, one of
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Prestige Ford’s employees. Mr. Olvera informed Ms. Fuston of
Garza’s EEOC complaint and lawsuit. He and other employees
regularly referred customers to Ms. Fuston for car insurance. He
advised her that neither he nor his co-workers wanted to have any
contact with Garza. Mr. Olvera was not a supervisor nor did he
have power to hire, fire or direct other employees. He did not
state that he was representing Prestige Ford and Ms. Fuston did not
believe that he was acting on the dealership's behalf. Ms. Fuston
informed Garza of the phone call and advised her that her
employment would not be affected in any way.
Garza asserts that she used a false name in the office to
avoid contact with Prestige Ford’s employees and was paid by
personal check to avoid identifying her with the Allstate office.
She agrees that Ms. Fuston treated her no differently after Mr.
Olvera’s phone call. In March, 2000, Garza and Ms. Fuston argued
over how Garza handled certain customers, which resulted in their
departure. Garza resigned after that disagreement, although Ms.
Fuston asked her to remain. Garza then amended her Title VII
complaint, adding a complaint of retaliation by Prestige Ford,
based on Mr. Olvera’s phone call which Garza claims led to her
“constructive discharge” from Allstate.
During the February 16, 2001, hearing on summary judgment, the
trial court ruled from the bench that Garza’s prima facie case,
though weak, had been established. The court further ruled that
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Prestige Ford had offered a legitimate, non-pretextual reason for
Garza’s termination against which Garza had not presented adequate
summary judgment evidence to create an issue of material fact.
Also, the court ruled that Garza’s departure from Allstate was
predicated on her disagreement with Ms. Fuston over the lost
customers, which had no causal connection to Mr. Olvera’s phone
call. Therefore, the trial court held that Garza’s resignation was
not a constructive discharge caused by any act of retaliation on
the part of Prestige Ford.
III. ANALYSIS
This court conducts a de novo review of a grant of summary
judgment, ensuring that no genuine issue of material fact exists
and that judgment in favor of the appellee was warranted as a
matter of law. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th
Cir. 2000). Under FED. R. CIV. P. 56(c), summary judgment is
appropriate when the evidence, viewed in the light most favorable
to the nonmovant, reflects no genuine issues of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,
2552-53, 91 L. Ed. 2d 265 (1986); Hall v. Gillman, Inc., 81 F.3d
35, 36-37 (5th Cir. 1996).
A.
Under Title VII analysis, (1) a plaintiff must establish a
prima facie case of discrimination; (2) the defendant may then
offer a valid, non-discriminatory reason for the alleged
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discriminatory action; and, (3) the plaintiff then must show that
the defendant’s offered reason is merely pretext. See McDonnell
Douglas v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L.
Ed. 2d 668 (1973). The Title VII plaintiff bears at all times the
“ultimate burden of persuasion.” See St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407
(1993).
A prima facie claim is established when a plaintiff shows that
she is a member of a protected class under Title VII; that she was
qualified for the position; that she suffered an adverse employment
decision; and that the adverse employment decision was
differentially applied to her. See McDonnell Douglas, 411 U.S. at
802; Rubenstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392,
399 (5th Cir. 2000). Here, we determine, as did the trial court,
that Garza met the prima facie case requirements. Her claim is
discrimination on the basis of sex because she is female; she was
in fact terminated; and, by her claim of the circumstances, males
who were co-employed by Prestige Ford with their siblings were not
also terminated. As the district court explained, Garza was not
qualified for the specific position, but the fact that Prestige
Ford hired her for the position sufficed to show she met the basic
qualification for being hired. On that basis, we agree that Garza
established her prima facie case.
Prestige Ford offers as its reason for terminating Garza’s
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employment that Garza in fact lacked experience required in the
position. It hired Garza originally in the expectation that she
would be able to pick up the skills needed for car sales on the
job, even though Prestige Ford did not offer a formal training
program. Instead, Prestige Ford found that her reliance on others
to close her sales and her objections to splitting her commission
were disruptive. Garza was offered the choice of a lower level job
under qualified supervision, from which she could learn the sales
skills, or termination. She refused the lower level job. This is
a legitimate and non-discriminatory reason for terminating an
employee and is consistent with an earlier decision to hire an
individual expected to learn on the job.
To prevail at trial, Garza would have to prove that Prestige
Ford’s offered reason is merely pretext for its actual
discriminatory intent. In the summary judgment context, however,
Garza is only required to show an issue of material fact regarding
pretext. See Hall v. Gillman, Inc., 81 F.3d 35, 37 (5th Cir.
1996). Garza still must present competent summary judgment
evidence in doing so. Unsubstantiated assertions are not competent
summary judgment evidence. See Celotex Corp. v. Catrett, 477 U.S.
317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Forsyth v.
Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
In this case, Garza has offered no evidence other than her own
assertion by affidavit dated November 1, 2000, that Mr. Villareal
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told her that she was being terminated because her brother also
worked at the Prestige Ford dealership. That assertion has not
been borne out in any of the evidence, other than her own
affidavit, submitted in this case. Further, her affidavit is
founded extensively on hearsay evidence which the trial court
properly excluded from consideration. We will do the same.
Additionally, the reason for termination Mr. Villareal gave on
Garza’s Employment History form was “lack of experience,” citing
the reports of several employees and unit supervisors of Prestige
Ford. The remarks entered on the form go on to indicate that Garza
was in a ninety day probationary period and that Prestige Ford “got
employee new work arrangements at Skyline Ford.” This, along with
substantiating deposition testimony, is convincing.
Garza cites “serious credibility issues on the part of
Defendant’s representatives” to bolster her assertion of sex
discrimination. She characterizes statements made by Mr. Villareal
and Mr. Gutierrez in deposition, for example, as being so
contradictory as to be patently “false.” Those statements show
only that their memories in retrospect differ as to whether they
made the decision to terminate Garza jointly or whether they
discussed the matter together and one of them made the actual
decision. Another “credibility issue” claimed by Garza takes
umbrage with Mr. Villareal’s comment on Garza’s Employment History
form that he had “discussed options” relating to Garza’s
termination with Bill Peace, Prestige Ford’s Special Projects
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Manager. Garza points out that Mr. Peace stated in deposition that
he did not discuss “options” with Mr. Villareal. What he did say,
however, was that Mr. Villareal consulted him regarding the
impending termination and asked him for input, which Mr. Peace
provided. Again, this is little more than a minor differentiation
of language or a subtle difference of individual memory.
The most important “credibility issue” Garza points to is in
the affidavit of Charlie Nixon, Prestige Ford’s General Manager.
He asserted “personal knowledge” of the individuals involved and
the facts surrounding Garza’s termination when, in fact, he based
his affidavit on second-hand reports. However, the trial court
sustained Garza’s objection to Mr. Nixon’s affidavit on that point
and excluded it from consideration in reaching its summary judgment
determination. The court considered only that portion identifying
Mr. Nixon as Prestige Ford’s custodian of records and
authenticating the Employment History form. Again, we have done
the same and thus avoid any credibility issue engendered in Mr.
Nixon’s affidavit.
Garza’s claim of Prestige Ford’s lack of credibility is thus
resolved and casts no issue of material fact of pretext on Prestige
Ford’s reasons for Garza’s termination.
On these bases, Garza’s Title VII claim is unsupported and
Prestige Ford’s legitimate, non-discriminatory reason for
terminating her survives Garza’s claim of pretext.
B.
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A prima facie case of retaliation exists if Plaintiff
establishes that (1) she participated in statutorily protected
activity, (2) she received an adverse employment action and (3) a
causal connection exists between the protected activity and the
adverse action. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1092 (5th Cir. 1995).
Here, Garza’s action in filing an EEOC complaint and lawsuit
is obviously protected activity. She claims that she suffered an
adverse employment action when Mr. Olvera contacted Ms. Fuston to
inform Ms. Fuston of Garza’s complaints. Garza characterizes Mr.
Olvera as an agent for Prestige Ford and her resignation from Ms.
Fuston as a constructive discharge caused by Prestige Ford’s
retaliatory phone call. Her analysis fails.
Title VII defines “employer” to include “any agent of such a[n
employer].” See 42 U.S.C. § 2000e(b). Agency in the Title VII
context requires that, for an employee’s action to be imputed to an
employer, the employee must be acting in a managerial capacity and
in the scope of employment when committing the wrong. See
Rubinstein, supra, 218 F.3d at 405. Evidence must support such a
finding. Id. Whether an agent is a manager is a fact-intensive
inquiry. See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188
F.3d 278, 285 (5th Cir. 1999)(en banc). Considerations include a
determination of what the individual is authorized to do by the
principal; whether the individual has discretion as to what is done
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and how it is done; and whether the individual has the power to
make independent decisions regarding personnel matters or to
determine policy. Id.
The fact that Mr. Olvera is a salesperson without managerial
discretion or authority is uncontested. Garza's agency claim is
predicated on her assertion that Mr. Olvera called Ms. Fuston at
the behest of one of Prestige Ford’s managers, Mr. Felix Gutierrez.
On that basis, she asserts that Mr. Olvera acted with Prestige
Ford’s authorization via its manager, Mr. Gutierrez. Garza claims,
in her affidavit, that Ms. Fuston told Garza that Mr. Olvera told
Ms. Fuston that he had been asked by Mr. Gutierrez to call and
threaten to withhold referrals. Presumably, the trial court
disregarded this double hearsay testimony as we do. She offers no
other evidence whatsoever that Mr. Olvera acted other than on his
own behalf. Ms. Fuston has testified that Mr. Olvera made no such
statement to her, that he spoke to her as her friend and that she
recognized that he was not representing Prestige Ford in any
official capacity.
Under these circumstances, Mr. Olvera was not acting as an
agent of Prestige Ford and therefore any statement he may have made
to Ms. Fuston cannot be considered as “retaliation.”
Finally, Garza quit her employment with Ms. Fuston because of
an argument between the two of them relating to the handling of
potential insurance customers. There is no evidence, other than
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Garza’s claim, showing any causal connectivity whatsoever between
Mr. Olvera’s phone call and her decision to quit.
On these bases, Garza’s claim of retaliation is meritless.
IV. CONCLUSION.
For the foregoing reasons, the judgment is AFFIRMED.
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