Staten v. New Palace Casino, LLC ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-60144
URSULA STATEN
Plaintiff - Appellant
v.
NEW PALACE CASINO, LLC
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi, Biloxi
No. 1:03-CV-893
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Ursula Staten appeals the district
court’s order granting summary judgment in favor of the
defendant-appellee New Palace Casino on her employment
discrimination and retaliation claims. For the following
reasons, we AFFIRM in part and REVERSE and REMAND in part.
*
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that this opinion should not be published and is not precedent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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I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellant Ursula Staten (“Staten”), an African-
American woman, began working for defendant-appellee New Palace
Casino, LLC (“New Palace”) in Biloxi, Mississippi, on November 9,
1999. New Palace employed Staten as a cook in the Emerald
Courtyard Buffet (“Buffet”) at an hourly rate of $8.00. On or
around May 1, 2000, New Palace promoted Staten to the supervisory
position of lead baker in Jazzmin’s, one of the restaurants
located in the casino hotel. Staten received a pay increase to
$10.00 per hour.
On May 8, 2000, before Staten began working in her new
position, New Palace promoted James Reed (“Reed”) to the sous
chef position at Jazzmin’s.1 Staten and Reed had a long and
acrimonious history from working together at Casino Magic,
another casino located in Biloxi. As part of a Title VII lawsuit
she initiated against Casino Magic in September 1998, Staten
alleged that Reed had threatened her while they worked together
as cooks at Casino Magic. Staten and Casino Magic settled in
February 2000.
After learning of Staten’s prior lawsuit involving
allegations against Reed, on May 16, 2000, New Palace transferred
Staten back to the Buffet and promoted her to the supervisory
1
New Palace had employed Reed since January 11, 2000.
Before his transfer to Jazzmin’s, Reed worked as a lead line cook
at Lawana’s, another New Palace food venue.
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position of lead cook on the graveyard shift.2 Staten worked the
graveyard shift the entire time she was employed by New Palace.
As a lead cook at the Buffet, Staten retained an hourly rate of
$10.00.
Although Staten received no negative remarks or reprimands
in her personnel file during her employment with New Palace, she
experienced problems with certain Caucasian employees working
under her supervision. Staten testified that Jack Warren
(“Warren”), who worked as a utility or dishwasher employee on the
graveyard shift, refused to follow orders and used racial
epithets against her when she would ask him to do something.
Staten reported Warren’s behavior to her supervisors on several
occasions and requested and received a meeting with management
after Warren’s insubordination continued. On October 4, 2001,
New Palace gave Warren a final written warning, which stated that
his next warning would result in suspension or termination.
Staten alleges that, even though Warren’s insubordination
persisted throughout her employment with New Palace, Warren was
2
Staten testified that Charles Dio, the Executive Chef,
told her that he was aware of her previous lawsuit against Casino
Magic and asked her if she had any problems working with Reed at
the hotel. Staten responded that she did not have any problems
working with Reed. Sometime after this conversation, Staten had
a meeting with Garin Morton, the Kitchen Manager, who informed
her that New Palace was going to transfer her back to the Buffet
because of her prior lawsuit involving Reed. Although Staten did
not file any Equal Employment Opportunity Commission (“EEOC”)
charges against New Palace over her job change, she complained to
New Palace’s Food and Beverage Director, David Vickers
(“Vickers”).
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not terminated. Staten also testified that she had problems with
Adrianne Wathern (“Wathern”), who told New Palace employee Leslie
Walker (“Walker”) on October 26, 2001, that she was going to hit
Staten with a pan if Staten told her to do anything at work.
Staten reported Wathern’s alleged conduct to Jim Poolson
(“Poolson”), the Kitchen Manager for the Buffet. Poolson told
Staten to get Walker to write and sign a statement describing
what she heard Wathern say and he would look into it. When
Staten asked Poolson if he spoke with Wathern, he told her he
did. Staten testified that she could not remember having any
additional problems with Wathern, mainly because New Palace
terminated Wathern shortly thereafter for missing too many days
of work.
In addition to reporting her problems with certain Caucasian
employees, Staten repeatedly voiced concerns to the management
about what she perceived to be racial inequalities in the
workplace. Staten testified that Poolson handled “records of
discussion” or “write-ups” for Caucasian employees differently
than write-ups for African-American employees. Although she had
to check with Poolson before she wrote up any employee, Staten
testified that Poolson never gave her permission to write up
Caucasian employees, instead saying he would take care of it, but
always gave her permission to write up African-American
employees. Staten complained to the management about the
disparate treatment and eventually brought her concerns to the
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human resources department and upper management.
In November 2001, New Palace decided to close the Buffet for
a complete renovation. As a result, New Palace furloughed
thirty-one Buffet employees. Staten testified that before New
Palace announced the furlough, Poolson told the six lead
employees working at the Buffet, including Staten, that the
furlough would not affect their jobs. On November 19, 2001, New
Palace notified all Buffet employees by letters and notices that
unless their names appeared on the new schedule, they would be
furloughed as of November 25, 2001.
The new schedule showed that four of the six lead employees,
Willie Jean Thomas (“Thomas”), Ruth Sadler (“Sadler”), Michael
Westover (“Westover”), and Johnna Hughes (“Hughes”), retained
their lead positions during the renovation. Instead of working
as lead employees at the Buffet, however, New Palace transferred
these employees to Jazzmin’s, where they would be doing the same
work with the exception of cooking for the Buffet.3 Of these
employees, Thomas is African-American, and Sadler, Westover, and
Hughes are Caucasian. The two other lead employees, Staten and
James Shuford (“Shuford”), both of whom are African-American, did
not retain their lead positions during the renovation.
Staten testified that at the time the layoffs were
3
Staten does not allege that these lead employees were
transferred before the furlough. Rather, she claims they were
retained and transferred after other Buffet employees were laid
off.
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announced, she was offered a position as an attendant in the
employee dining room, a non-supervisory, lower-paying position
that she claims amounted to a demotion.4 Staten testified that
she never got an opportunity to accept or reject the position
because after she inquired as to whether her pay as an attendant
would remain the same as her pay as a lead cook (at $10.00 per
hour), without receiving an answer, she was furloughed on
November 25, 2001. New Palace, on the other hand, claims that
Staten declined the attendant position.
On January 9, 2002, Staten filed a charge of racial
discrimination and retaliation with the Equal Employment
Opportunity Commission (“EEOC”) against New Palace over her
termination. Staten alleged that New Palace discriminated
against her based on her race because she “was one of the only
two supervisors laid off,” with the other terminated supervisor
being Shuford, who is also African-American. She claimed that
New Palace retaliated against her based on her prior lawsuit
against Casino Magic and her complaints to management about
racial disparities in the workplace.
4
The parties disagree over the timing and manner in which
New Palace offered Staten an alternative position. Staten
testified that her name appeared under the attendant position on
a new schedule posted the day of the furlough. Staten also
testified that no one from the Palace ever called her at home to
offer her the position. New Palace claimed that after Staten was
furloughed, she was contacted at home by Vickers about an
employee dining room cook position starting at $8.00 per hour and
for a different shift time.
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In response to Staten’s EEOC charge, New Palace took the
position that all Buffet employees had been laid off.
Specifically, in a letter dated March 29, 2002, New Palace
asserted to the EEOC that:
The entire food and beverage staff that worked in the
buffet was notified on November 19, 2001 that they would
be furloughed on November 25, 2001. . . . All the
associates that worked in the buffet were furloughed or
applied for other jobs in the casino. There was no
criteria used in determining the furlough, all Associates
would [sic] worked in the buffet were furloughed.
New Palace claimed that it chose to call the termination a
“furlough” because it wanted to encourage all furloughed Buffet
employees to reapply for their positions after the renovation was
complete.
In early 2002, Staten began making inquiries about
reapplying for a lead position at New Palace. Although Staten
maintains that she sent in several applications, New Palace
acknowledges receiving only one application on February 27, 2002.
In her February 27, 2002 application, Staten applied for a lead
baker or any other lead position. She checked on her application
that she preferred the graveyard shift. Staten repeatedly called
Troy Trettle (“Trettle”), who was hired by New Palace on January
16, 2002, as the new Food and Beverage Director, about reapplying
for her old position. New Palace gave Trettle sole discretion
and responsibility to interview and hire employees for the
renovated Buffet, which was set to reopen in May 2002. During
this process, Trettle interviewed over 200 applicants.
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On April 25, 2002, two months after receiving her
application, Trettle interviewed Staten for a sous chef position,
which was a higher-paying position than the lead positions for
which she had applied. To date, New Palace maintains that it was
not hiring employees for lead positions in March and April of
2002, during the time Staten’s application was under
consideration. On May 10, 2002, New Palace contacted Staten
informing her that she had not been hired for the sous chef
position. Instead, Trettle had hired Mary Kostmayer, a Caucasian
woman, for the sous chef position.
On June 3, 2002, Staten filed a second charge of
discrimination and retaliation with the EEOC over New Palace’s
refusal to rehire her. On August 8, 2003, the EEOC issued
determinations as to both the January and June 2002 charges,
concluding that the evidence established violations of Title VII
by New Palace, in that New Palace retaliated against Staten for
engaging in a protected activity.5 After receiving a right-to-
sue letter from the EEOC, on November 19, 2003, Staten filed suit
in federal court, asserting claims of race discrimination and
5
The EEOC determinations contain at least two factual
errors. First, the EEOC found that Staten “was the only Lead
Supervisor who was furloughed,” but the record reveals that both
Staten and Shuford were terminated on November 25, 2001. Second,
the EEOC determined that Staten “applied and was interviewed for
a Lead position,” whereas the record indicates that Staten
applied for a lead position but was interviewed for the sous chef
position because New Palace claimed it was not hiring lead
positions.
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retaliation over her termination and New Palace’s refusal to
rehire her, pursuant to 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).
Throughout the EEOC investigation and up until the date it
filed its motion for summary judgment, New Palace maintained that
all Buffet employees had been terminated on November 25, 2001, in
connection with the renovation. George Conwill (“Conwill”), New
Palace’s Chief Financial Officer and designated deponent under
FED. R. CIV. P. 30(b)(6), testified during his deposition on
August 10, 2004, that New Palace had laid off all Buffet
employees:
STATEN’S COUNSEL: Could you please tell me any and all
reasons Ms. Ursula Staten was chosen
to be placed on furlough status on
November the 25th, 2001?
CONWILL: We made a business decision to
remodel the buffet on the third
floor of the casino . . . . So all
the personnel that worked in the
buffet we laid off for furlough, and
they could reapply for a job when we
reopened the buffet. So Ursula was
terminated and laid off along with
31 others that were in the buffet.
I believe it was 31 people.
. . . .
STATEN’S COUNSEL: And your testimony here today is
that you are not aware or you don’t
know one way or the other if there
were non-African American lead
employees in the employment of the
casino in the buffet on November
25th, 2001?
CONWILL: I can surmise that if there were any
African American leads at the date
that we--that worked in the buffet
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when we furloughed everyone, they
would have been furloughed, too. So
by summation, I would say no, they
were not, that those are the only
leads or they would have been
terminated or furloughed with
everyone else.
. . . .
STATEN’S COUNSEL: I’m talking about non-African
American leads. You don’t know one
way or the other if there were non-
African--
CONWILL: Non-African or African American
leads. If they would have been
classified in the buffet at the time
of the furlough, they would have
been furloughed or laid off.
STATEN’S COUNSEL: And not transferred?
CONWILL: And not transferred.
. . . .
STATEN’S COUNSEL: [A]ny criteria used to determine which
employees would be subjected to the
furlough and which employees were not?
CONWILL: Well, the criteria was those that worked
in the buffet that we were closing would
be laid off or furloughed.
STATEN’S COUNSEL: That’s all shifts, day, night, graves?
CONWILL: That would be--yeah, that would be
whoever worked in that venue.
Even after Staten’s counsel asked Conwill why certain lead
employees, including Thomas, Sadler, Westover, and Hughes, were
not furloughed, Conwill’s testimony remained the same:
STATEN’S COUNSEL: You don’t know why those people were
not subjected to the furlough?
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CONWILL: I do not.
STATEN’S COUNSEL: It was your testimony that every
employee of the buffet was subjected
to the furlough?
CONWILL: That was in the buffet at the time
of the furlough.
STATEN’S COUNSEL: On November 25th, ‘01?
CONWILL: Yes.
With regard to its decision not to interview and rehire
Staten for a lead position, New Palace took the position that it
was not hiring lead personnel during the period in which Staten’s
application was under consideration. During his deposition,
Trettle testified that he did not “believe [he] hired any lead
positions” but would “have to think about it for a minute.” He
admitted that he hired April Joyner as a lead baker, but “as far
as hiring other leads, [he] [couldn’t] really say [he] really
hired other leads as per se that [they’re] a lead position.”
Trettle also testified that he was not aware that Staten had
filed a charge of discrimination and retaliation against New
Palace with the EEOC.
On November 1, 2004, New Palace filed a motion for summary
judgment. In support of its motion for summary judgment on
Staten’s termination claims of race discrimination and
retaliation, New Palace attached an affidavit of Conwill dated
November 1, 2004, in which Conwill articulated a different reason
for New Palace’s decision to terminate Staten. Conwill explained
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that the four lead employees who were retained had more tenure
with the company than Staten,6 and Jazzmin’s, the restaurant to
which the four lead employees were transferred, did not operate a
graveyard shift, which was the shift Staten had worked her entire
employment with New Palace.7 Conwill acknowledged that he
previously had given a different reason for Staten’s termination
and explained that when he gave his 30(b)(6) deposition, he “was
not aware that four Lead Cooks from the first and swing shifts of
the Buffet were transferred to Jazzmin’s.”8
New Palace also moved for summary judgment on Staten’s
refusal to rehire claims of race discrimination and retaliation.
New Palace maintained that it did not hire Staten for a lead
position or a sous chef position because “the un-refuted evidence
demonstrates that Mr. Trettle was not hiring additional ‘Lead’
personnel for the Buffet and he believed that Plaintiff did not
possess the basic knowledge to work as a Sous Chef in the
6
New Palace originally hired these employees on the
following dates: Thomas on January 28, 1997; Sadler on January
28, 1997; Westover on January 28, 1997; and Hughes on February
17, 1999. Staten and Shuford, the two lead employees who were
laid off, were hired on November 9, 1999, and June 5, 2000,
respectively.
7
The district court apparently accepted New Palace’s
assertion that both Staten and Shuford worked the graveyard
shift. While Staten admitted in her deposition that she worked
the graveyard shift the entire time she was employed by New
Palace, the record indicates that Shuford worked the swing shift
(and not the graveyard shift).
8
Despite Conwill’s claimed ignorance, the transfer
documents for all four lead employees bear his initials.
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Buffet.” New Palace further asserted that Trettle had no
knowledge of Staten’s January EEOC charge against New Palace when
he interviewed Staten and decided not to hire her to work in the
renovated Buffet.
On February 9, 2005, the district court granted New Palace’s
motion for summary judgment. First, with regard to Staten’s
termination claims of race discrimination and retaliation, the
district court determined that Staten failed to produce evidence
of pretext or provide “any evidence that the Palace’s decision to
terminate her employment, while at the same time transferring the
Caucasian employees to another restaurant, was motivated by
Staten’s race” or “any evidence from which a jury may infer the
Palace retaliated against her . . . .” Although the district
court acknowledged the inconsistencies between New Palace’s
proffered reasons for terminating Staten, it apparently accepted
New Palace’s explanation, finding that “the Palace explained that
[Conwill] was not aware until his deposition that four lead
employees were not subject to the furlough.” After considering
Staten’s refusal to rehire claims of race discrimination and
retaliation, the district court held that Staten had produced no
evidence showing that New Palace’s justifications for refusing to
hire Staten were false or pretext for race discrimination or
retaliation. On February 18, 2005, Staten filed this appeal.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
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novo, applying the same standard as the district court. See Blow
v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).
Summary judgment is proper only “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.” FED. R. CIV. P. 56(c). On a motion
for summary judgment, we view all facts in the light most
favorable to the nonmoving party. Blow, 236 F.3d at 296.
III. DISCUSSION
A. Title VII Framework
Under Title VII, a plaintiff can prove a claim of
intentional discrimination or retaliation by either direct or
circumstantial evidence. See Russell v. McKinney Hosp. Venture,
235 F.3d 219, 222 (5th Cir. 2000) (intentional discrimination);
Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005)
(retaliation). Cases built upon the latter, like this one, are
analyzed under the framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). See Russell, 235 F.3d at
222; Septimus, 399 F.3d at 608. Under the McDonnell Douglas
framework, the plaintiff first must establish a prima facie case
of discrimination or retaliation. See Russell, 235 F.3d at 222
(discrimination);9 Gee v. Principi, 289 F.3d 342, 345 (5th Cir.
9
A prima facie case of discrimination requires the
plaintiff to show that: (1) she is a member of a protected group;
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2002) (retaliation).10 If the plaintiff makes a prima facie
showing, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory or nonretaliatory reason for its
employment action. See Russell, 235 F.3d at 222; Gee, 289 F.3d
at 345. The employer’s burden is only one of production, not
persuasion, and involves no credibility assessments. Russell,
235 F.3d at 222 (citing Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 255-56 (1981)). If the employer meets its burden
of production, the plaintiff then bears the ultimate burden of
proving that the employer’s proffered reason is not true but
instead is a pretext for the real discriminatory or retaliatory
purpose. See id. To carry this burden, the plaintiff must rebut
each nondiscriminatory or nonretaliatory reason articulated by
the employer. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.
2003) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001), cert. denied, 535 U.S. 1078 (2002)).
A plaintiff may establish pretext “by showing that the
(2) she was qualified for the position at issue; (3) she was
discharged or suffered some adverse employment action by the
employer; and (4) she was replaced by someone who is not a member
of her protected group or she was treated less favorably than
others similarly situated to her. Byers v. Dallas Morning News,
209 F.3d 419, 426 (5th Cir. 2000).
10
To prove a prima facie case of retaliation, the
plaintiff must establish that: (1) she participated in activity
protected by Title VII; (2) her employer took an adverse
employment action against her; and (3) a causal connection exists
between the protected activity and the adverse employment action.
Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th
Cir. 2003).
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employer’s proffered explanation is false or ‘unworthy of
credence.’” Id. (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000)). An explanation is false or
unworthy of credence if it is not the real reason for the
employment action. Id. “Evidence demonstrating that the
employer’s explanation is false or unworthy of credence, taken
together with the plaintiff’s prima facie case, is likely to
support an inference of discrimination [or retaliation] even
without further evidence of the defendant’s true motive.” Id.
“No further evidence of discriminatory animus is required because
‘once the employer’s justification has been eliminated,
discrimination [or retaliation] may well be the most likely
alternative explanation.’” Id. (quoting Reeves, 530 U.S. at
147). As the Supreme Court explained in Reeves,
the trier of fact can reasonably infer from the falsity
of the explanation that the employer is dissembling to
cover up a discriminatory purpose. Such an inference is
consistent with the general principle of evidence law
that the factfinder is entitled to consider a party’s
dishonesty about a material fact as affirmative evidence
of guilt.
530 U.S. at 147 (internal quotation marks and citations omitted);
see also Gee, 289 F.3d at 348 (applying Reeves to a Title VII
retaliation claim and noting “that a factfinder may infer the
ultimate fact of retaliation from the falsity of the
explanation”).
B. Application of Title VII Framework
The district court assumed--and New Palace concedes for the
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purposes of summary judgment--that Staten established a prima
facie case for each of her claims of race discrimination and
retaliation. The district court determined that New Palace
presented legitimate, nondiscriminatory and nonretaliatory
reasons for terminating and refusing to rehire Staten, and Staten
does not contest this determination on summary judgment.
Therefore, the only issue presented for our review is whether
Staten has produced sufficient evidence to indicate that New
Palace’s proffered legitimate, nondiscriminatory and
nonretaliatory reasons were pretext for discrimination and
retaliation.
1. Discrimination and Retaliation Based on Staten’s
November 2001 Termination
Staten points out that New Palace offered inconsistent
explanations throughout the litigation as to why it terminated
her, initially taking the position before the EEOC and in
Conwill’s 30(b)(6) deposition that all Buffet employees had been
furloughed, and later explaining in Conwill’s affidavit that the
four lead employees who were retained had more seniority than
Staten and worked different shifts. Staten maintains that New
Palace’s inconsistent explanations are enough to withstand
summary judgment and that the district court misapplied Reeves in
concluding otherwise. Staten alternatively contends that she
should be allowed to prove her termination claims under the
mixed-motive framework, as set forth by this court in Rachid v.
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Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004).
New Palace counters that it made a “mistake” in offering
inconsistent justifications for its decision to terminate Staten
and that when it realized its mistake, it corrected the record
and provided all relevant documentation to Staten. New Palace
argues that Reeves requires something more than a mistake or an
inconsistent explanation for an issue of discrimination or
retaliation to reach a jury and that the district court properly
granted summary judgment on Staten’s termination claims. We
disagree.
When an employer offers inconsistent explanations for its
employment decision at different times, as here, the jury may
infer that the employer’s proffered reasons are pretextual. See
Gee, 289 F.3d at 347-48 (determining summary judgment was
improper where the plaintiff produced evidence that the
employer’s explanation for her non-selection had been
inconsistent and there were discrepancies between the
decisionmaker’s affidavit and testimony); see also EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (“[T]he fact
that Sears has offered different justifications at different
times for its failure to hire Santana is, in and of itself,
probative of pretext.”) (citing, inter alia, Dominguez-Cruz v.
Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“[W]hen a
company, at different times, gives different and arguably
inconsistent explanations, a jury may infer that the articulated
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reasons are pretextual.”), and EEOC v. Ethan Allen, Inc., 44 F.3d
116, 120 (2d Cir. 1994) (holding that a reasonable juror could
infer that the shifting and inconsistent explanations given by
the employer at trial were pretextual, developed over time to
counter the evidence suggesting discrimination)); Zaccagnini v.
Chas. Levy Circulating Co., 338 F.3d 672, 677 (7th Cir. 2003)
(“[T]he consistency of the explanation provided by an employer at
the time of an employment decision and in an administrative
proceeding is evidence of the veracity of the employer’s
explanation at summary judgment.”). The timing of an employer’s
changing rationale is also probative of pretext. See Jaramillo
v. Colo. Judicial Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005)
(“The timing of the change [in the employer’s explanation for its
decision] has been found to support the inference of pretext when
it occurs after significant legal proceedings have occurred.”);
Sears Roebuck & Co., 243 F.3d at 853 (“[A] factfinder could infer
from the late appearance of Sears’s current justification that it
is a post-hoc rationale, not a legitimate explanation for [its
employment decision].”).
Given New Palace’s inconsistent explanations for Staten’s
termination and the timing of its changing rationale, a
factfinder could conclude that, in the words of the Supreme
Court, New Palace’s “asserted justification is false” or
“unworthy of credence.” 530 U.S. at 148, 147; see also Russell,
235 F.3d at 225 (reiterating that it is the province of the jury
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to choose among conflicting versions and make credibility
determinations). Contrary to the district court’s determination,
Staten was not required to produce additional independent
evidence of discrimination or retaliation for New Palace’s
decision to terminate her. See Gee, 289 F.3d at 348 (stating
that under Reeves “a plaintiff may withstand a motion for summary
judgment without adducing additional, independent evidence” of
discrimination or retaliation). Rather, as this court previously
has explained, “evidence of the prima facie case plus pretext
may, and usually does, establish sufficient evidence for a jury
to find discrimination.” Evans v. City of Bishop, 238 F.3d 586,
592 (5th Cir. 2000).11 Accordingly, we reverse the district
court’s order granting summary judgment on the issues of race
discrimination and retaliation for Staten’s termination. Having
reached this conclusion, we need not address Staten’s alternative
arguments under Rachid and the mixed-motive framework.
11
Under Reeves, there are two instances in which a showing
of pretext is insufficient to get the plaintiff past summary
judgment: (1) when the record conclusively reveals some other,
nondiscriminatory or nonretaliatory reason for the employer’s
decision; or (2) when the plaintiff creates only a weak issue of
fact as to whether the employer’s reason was untrue and there is
abundant and uncontroverted independent evidence that no
discrimination or retaliation occurred. 530 U.S. at 148; see
Russell, 235 F.3d at 223 (describing the use of these instances
as “rare”). The parties have not argued--and we do not conclude
--that this is one of those “rare” exceptions to Reeves: the
record does not conclusively reveal some other reason for the
termination (other than the two inconsistent explanations), and
Staten’s showing of pretext is not weak. See Laxton, 333 F.3d at
585.
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2. Discrimination and Retaliation Based on New Palace’s
May 2002 Refusal to Rehire Staten
Staten contends that she can rebut the nondiscriminatory and
nonretaliatory reasons articulated by New Palace for its refusal
to rehire her for a lead position and that the district court
erred in not properly evaluating her challenges of pretext.12
First, Staten argues that New Palace’s explanation that it was
not hiring lead personnel is a pretext for discrimination and
retaliation because the record conclusively shows that New Palace
was hiring lead employees in March and April of 2002. Second,
Staten claims that New Palace’s justification that Trettle did
not know about her January EEOC charge is a pretext for
retaliation because Trettle’s testimony is not credible. Staten
alternatively contends that she should be allowed to prove her
refusal to rehire claims under the mixed-motive framework as set
forth in Rachid.
New Palace maintains that Trettle was not hiring lead
personnel when Staten’s application was under consideration and
therefore this justification is not a pretext for discrimination
or retaliation.13 Responding to Staten’s argument that New
12
Staten does not challenge the district court’s
conclusion that she failed to produce sufficient evidence to
support her contention that she was more qualified than Mary
Kostmayer for the sous chef position.
13
New Palace has represented in its memoranda and briefs
before the district court and this court that it was not hiring
lead personnel. See, e.g., R. at 80, 232 (stating that “the un-
refuted evidence demonstrates that Mr. Trettle was not hiring
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Palace retaliated against her by refusing to rehire her, New
Palace asserts that the uncontroverted evidence shows that
Trettle did not know Staten had filed an EEOC charge against New
Palace at the time he interviewed her and made his decision not
to hire her.
Our review of the record supports Staten’s claim of pretext
regarding New Palace’s explanation that it was not hiring lead
personnel. The record indicates that New Palace hired one lead
baker and three lead cooks in March and April of 2002: April
Joyner as a lead baker on March 26, 2002, and Rodney Bryant,
Tyree Valentine, and Sommai Boudreaux, as lead cooks on March 7,
2002, March 19, 2002, and April 17, 2002, respectively.14 This
unrefuted evidence directly contradicts New Palace’s explanation
that it was not hiring any lead personnel in March and April of
2002, when Staten submitted her application for consideration.
additional ‘Lead’ personnel for the Buffet”); id. at 239 (noting
at the time Trettle was interviewing candidates, he was not
hiring any additional lead positions). At oral argument, New
Palace’s attorney reiterated the company’s position that it was
not hiring lead personnel during March and April of 2002.
14
The record also shows that New Palace hired Sheryl
Hughey (“Hughey”) as a lead baker on April 25, 2002. New Palace
explained before the district court that Hughey was not hired as
a lead baker in April 2002, but instead was hired as a cook in
April and transferred to the lead baker position on June 24,
2002. It is not clear why New Palace did not attempt to refute
the evidence concerning its hiring of Joyner, Bryant, Valentine,
and Boudreaux, as lead employees in March and April of 2002,
before the district court or this court. This evidence was
included as one of the exhibits that Staten submitted to the
district court with her response to New Palace’s motion for
summary judgment.
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Considering all the facts and drawing all inferences in favor of
Staten, a factfinder is simply not required to believe New
Palace’s proffered justification and could “reasonably infer from
the falsity of the explanation that the employer is dissembling
to cover up a discriminatory purpose.” Reeves, 530 U.S. at 147;
see also Evans, 238 F.3d at 592 (“[E]vidence of the prima facie
case plus pretext may, and usually does, establish sufficient
evidence for a jury to find discrimination.”).15 Because this is
the only explanation given by New Palace on Staten’s race
discrimination claim and because Staten has submitted sufficient
evidence to show that this explanation is false, we reverse the
district court’s order granting summary judgment on the issue of
race discrimination for the refusal to rehire claim.
Although Staten has successfully rebutted New Palace’s
explanation that it was not hiring lead personnel, she must rebut
each nonretaliatory reason articulated by New Palace to prevail
on her claim of pretext for her retaliation claim. See Laxton,
333 F.3d at 578. In addition to its explanation that it was not
hiring lead personnel, New Palace offered Trettle’s deposition,
in which he testified that he did not know that Staten had filed
an EEOC charge against New Palace at the time he interviewed her
and made the decision not to hire her. Staten has produced no
15
Again, the parties have not argued--and we do not
conclude--that this is one of those “rare” exceptions to Reeves.
See Laxton, 333 F.3d at 585; cf. Reeves, 530 U.S. at 148.
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evidence to contradict New Palace’s asserted explanation;
instead, she attempts to show pretext by challenging the veracity
of Trettle’s testimony. Specifically, Staten points to the fact
that Trettle could remember only her name after interviewing over
200 applicants, Trettle had her application for two months before
interviewing her, and Trettle’s testimony that she answered his
interview questions incorrectly is refuted by her testimony and
affidavits filed by two other applicants.
“To raise an inference of pretext in the face of the
employer’s legitimate, non[retaliatory] explanation, the
plaintiff must undermine the employer’s credibility to the point
that a reasonable jury could not find in its favor.” Jaramillo,
427 F.3d at 1310 (citing Russell v. Acme-Evans Co., 51 F.3d 64,
70 (7th Cir. 1995)). In other words, the plaintiff must present
evidence so “that a jury could find that the employer (or its
decisionmaker) lacks all credibility.” Id. (internal quotation
marks and citation omitted) (emphasis added). Staten’s attempts
to undermine Trettle’s testimony are unpersuasive. Her alleged
irregularities in the interview process are simply not strong
enough so that a jury could find that Trettle “lacks all
credibility.” See id.
Because we conclude that Staten’s attempted showing of
pretext is insufficient, we must address Staten’s alternative
argument that in light of Desert Palace, Inc. v. Costa, 539 U.S.
90 (2003), and Rachid, 376 F.3d 305, she should be allowed to
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assert a mixed-motive alternative to the “but for” standard
required for retaliation claims.16 Under this lower standard,
Staten would only have to prove sufficient evidence that her EEOC
charge against New Palace was a “motivating factor” in New
Palace’s decision not to rehire her. This circuit has not
extended the holdings of Desert Palace or Rachid, both of which
concern discrimination claims, to Title VII retaliation claims.
See Septimus, 399 F.3d at 607 n.7 (refusing to decide whether
Desert Palace or Rachid affect the legal standard for Title VII
retaliation claims). Without deciding whether the mixed-motive
framework modifies the McDonnell Douglas framework for Title VII
retaliation claims, we conclude that Staten has provided no
evidence, direct or circumstantial, from which a reasonable jury
could logically infer that her EEOC charge was a motivating
factor in New Palace’s refusal to rehire her. Accordingly, we
affirm the district court’s order granting summary judgment on
Staten’s retaliation claim for New Palace’s refusal to rehire
16
In Rachid, this court held that Desert Palace modifies
the McDonnell Douglas analysis in Age Discrimination and
Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, cases such that a
plaintiff can proceed on a mixed-motives theory even without
direct evidence. In other words, the plaintiff can offer
sufficient evidence to create a genuine issue of material fact
“either (1) that the defendant’s reason is not true, but is
instead a pretext for discrimination (pretext alternative); or
(2) that the defendant’s reason, while true, is only one of the
reasons for its conduct, and another motivating factor is the
plaintiff’s protected characteristic (mixed-motives
alternative).” 376 F.3d at 312 (internal quotations marks,
citation, and alteration omitted).
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her.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order granting summary judgment on the issue of retaliation for
New Palace’s refusal to rehire Staten, and REVERSE and REMAND the
district court’s order granting summary judgment on the issues of
race discrimination and retaliation for Staten’s termination and
race discrimination for New Palace’s refusal to rehire her.
AFFIRMED in part; REVERSED and REMANDED in part.
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