Kristel Katseanes v. Time Warner Cable, Inc.

Case: 12-40517 Document: 00512137358 Page: 1 Date Filed: 02/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2013
No. 12-40517 Lyle W. Cayce
Clerk
KRISTEL KATSEANES,
Plaintiff–Appellant
v.
TIME WARNER CABLE, INCORPORATED,
Defendant–Appellee
Appeal from the United States District Court
for the Southern District of Texas
U.S.D.C. No. 7:10-CV-349
Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Kristel Katseanes appeals from the district court’s
grant of judgment as a matter of law in favor of Defendant-Appellee Time
Warner Cable, Inc., (“Time Warner”) on her Age Discrimination in Employment
Act (“ADEA”) claim. We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Facts and Procedural History
Katseanes worked as a “senior account executive” for Time Warner. In
that position, she solicited local businesses to create and run commercials. Over
time, she had developed a large number of clients, and she regularly generated
the highest amount of sales among her peers.
Although Katseanes was individually successful for a time, her sales
region fared poorly on Time Warner’s performance metrics. In 2006, it hired
Lance Morgan as General Manager, making him Katseanes’s direct supervisor.
He instituted a number of policies in an attempt to spur sales growth in the
region. For example, he required account executives to sell advertising based on
a “dynamic rate card,” which forced them to quote clients uniform prices. He
also capped the number of clients that account executives could protect from
internal competition.
As Morgan acknowledged at trial, these changes disproportionately
affected Katseanes. Even so, she successfully weathered the leadership
transition. Morgan considered her an ally in winning over other account
executives, and her 2006 sales were strong.
In 2007, however, the economy slowed, and Katseanes’s sales numbers
“dipped.” Eventually, the proportion of her “booked” to “budgeted” sales1 fell low
enough to “trigger” a performance plan, even though she remained the top
producer in her region when measured by a different standard: sales-by-dollars.
Initially, Katseanes’s plan called for limited additional sales-related activities
and discussions with Morgan. She also received “budget relief,” a reduction in
her 2007 sales goal.
1
“Booked-to-budgeted” sales refers to the percentage of actual versus projected sales.
For example, if Katseanes’s monthly goal was $100,000 and she brought in $95,000, her
“booked-to-budgeted” percentage would be 95%.
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The economy failed to improve, as did Katseanes’s booked-to-budgeted
percentage. In mid-2007, Marcie Farmer became Katseanes’s direct supervisor.
She soon issued Katseanes a written warning because her sales were averaging
80% of the amount budgeted in her 2007 goals agreement. Farmer ordered
Katseanes to complete additional sales-related activities, such as making a set
number of weekly “in-person cold calls,” taking a supervisor on at least three
monthly “client calls,” and turning in daily activity reports. The warning
provided that additional “disciplinary action, up to and including termination”
would result if Katseanes failed to follow through. Katseanes conceded at trial
that these actions were appropriate.
Katseanes’s sales numbers improved before the end of 2007, and Farmer
imposed no additional corrective measures. Even with budget relief, however,
Katseanes failed to meet her annual sales goal, requiring her to stay on a
performance plan. Farmer nonetheless rated Katseanes as “solid” in her 2007
review, below “outstanding” and “excellent” but above “needs improvement.”
She noted, however, that Katseanes’s “customer focus” needed improvement.
Time Warner implemented a revised “Performance Management” policy
for 2008. It provided that management could take “corrective action” against an
employee when (1) an employee’s booked-to-budgeted percentage fell between
“80-94% for [two] consecutive months and/or when activity levels [were]
insufficient to achieve future revenue goals”; (2) an employee’s percentage was
“not achieved at 80% for one quarter and/or activity levels [were] insufficient to
achieve future revenue goals”; or (3) “at management’s discretion for other
behavioral or performance issues.” The policy also contained a five-step
“corrective action process” that started with counseling, followed by a verbal
warning, a written warning, a “final” written warning, and termination.
Managers could resort to any step depending on the circumstances; serial
progressive discipline was not required.
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Not long into 2008, South Texas Ford (“Ford”), one of Katseanes’s largest
clients, drastically cut its budgeted annual advertising expenditures. Katseanes
lost about one-third of her projected 2008 sales, and her booked-to-budgeted
percentage fell below 70%. She admitted at trial, however, that she would have
remained on a performance plan despite the lost Ford business. Katseanes
regularly met with Morgan and Farmer in early 2008 about her performance.
In April 2008, Morgan and Time Warner’s regional Human Resources
Director issued Katseanes a “final” written warning because she had “failed to
maintain consistent activity levels,” had “consistently underperformed,” and was
on track to miss her “second quarter budget” even excluding the Ford account.
They emphasized that their concern stemmed from both Katseanes’s “lack of
activity” and her “failure to achieve budget.” They ordered Katseanes to
“consistently perform” several tasks, including weekly cold-calls, client visits,
and “prospecting” trips. The warning made clear that Katseanes’s “[failure] to
achieve those activity levels [would be] unacceptable and an indication that [she
was] unwilling to take direction to improve [her] business,” and could result in
“further disciplinary action up to and including termination.”
Katseanes promised in a letter to Morgan that she would “follow all of the
recommendations.” As she conceded at trial, however, she failed to do so.
Morgan testified that Katseanes’s inaction led Time Warner to end her
employment in July 2008. It is undisputed that, measured by dollars, Katseanes
sold more advertising than any other account executive up to her termination.
Katseanes subsequently sued in state court, and Time Warner removed.
At trial, she conceded, among other things, that she remained eligible for
“corrective action” at all relevant times and that no one at Time Warner made
age-related comments about her. Time Warner moved for judgment as a matter
of law at the close of Katseanes’s case, and the district court granted the motion.
It concluded that Katseanes failed to make a prima facie showing of age
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discrimination, that Time Warner’s nondiscriminatory explanation was
undisputed, and that Katseanes presented no legally sufficient evidence of
pretext.
II. Guiding Principles
Jury trials generally should proceed to verdicts. McDaniel v. Terex USA,
L.L.C., 466 F. App’x 365, 370 (5th Cir. 2012) (unpublished) (collecting cases).
District courts, however, may grant judgment as a matter of law “[i]f a party has
been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue[.]” Fed. R. Civ. P. 50(a)(1). We review such rulings de
novo. Brown v. Bryan Cnty., 219 F.3d 450, 456 (5th Cir. 2000). Judgment as a
matter of law is inappropriate “unless the facts and inferences point ‘so strongly
and overwhelmingly in the movant’s favor that reasonable jurors could not reach
a contrary conclusion.’” Flowers v. S. Reg’l Physician Servs., 247 F.3d 229, 235
(5th Cir. 2001) (citation omitted).
In relevant part, the ADEA makes it “unlawful for an employer . . . to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). “A plaintiff must prove
by a preponderance of the evidence (which may be direct or circumstantial), that
age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL
Fin. Servs., 557 U.S. 167, 177-78 (2009). That is, age must be “the ‘reason’ that
the employer decided to act.” Id. at 176 (emphasis added) (citation omitted).
“If the plaintiff produces direct evidence that discriminatory animus
played a role in the decision at issue, the burden of persuasion shifts to the
defendant, who must prove that it would have taken the same action regardless
of discriminatory animus.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
896 (5th Cir. 2002). In circumstantial-evidence cases, we apply the well-known
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burden-shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), which requires a plaintiff to first establish a prima facie case of
age discrimination. See 309 F.3d at 896-97. To do so, the “‘plaintiff must show
that (1) he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he was either i)
replaced by someone outside the protected class, ii) replaced by someone
younger, or iii) otherwise discharged because of his age.’” Jackson v. Cal-
Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (citation omitted).
If the plaintiff satisfies this burden, the defendant must give a
nondiscriminatory reason for its decision. Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 142-43 (2000). The burden then shifts back to the plaintiff to show
the pretextual nature of the defendant’s proffered reason. Id. Pretext may be
established “either through evidence of disparate treatment or by showing that
the employer’s proffered explanation is false or ‘unworthy of credence.’” Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citations omitted).
Katseanes’s arguments on appeal depend on allegations of “stray remarks”
and disparate treatment. “[F]or comments in the workplace to provide sufficient
evidence of discrimination, they must be ‘1) related [to the protected class of
persons of which the plaintiff is a member]; 2) proximate in time to the
[complained-of adverse employment decision]; 3) made by an individual with
authority over the employment decision at issue; and 4) related to the
employment decision at issue.’” Rubinstein v. Adm’rs of Tulane Educ. Fund, 218
F.3d 392, 401 (5th Cir. 2000) (alterations in original) (citation omitted).2 To
2
Our precedent is unclear whether the four-part stray-remarks test used in Rubinstein
and Jackson applies to both direct- and circumstantial-evidence cases. See Reed v. Neopost
USA, Inc., 701 F.3d 434, 441-42 & n.5 (5th Cir. 2012). Reed suggests that, in circumstantial-
evidence cases, Reeves requires a two-part test that looks to whether a comment shows “(1)
discriminatory animus (2) on the part of a person that is either primarily responsible for the
challenged employment action or by a person with influence or leverage over the relevant
decisionmaker.” Id. at 441 (citations omitted). Jackson, however, explains that “this circuit’s
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show disparate treatment, a plaintiff must demonstrate that her employer
treated another employee differently “under nearly identical circumstances,” i.e.,
“when the employees being compared held the same job or responsibilities,
shared the same supervisor or had their employment status determined by the
same person, and have essentially comparable violation histories.” Lee v. K.C.
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (footnotes omitted).
III. The District Court’s Evidentiary Rulings
Katseanes argues that the district court abused its discretion in excluding
a set of allegedly ageist remarks made by Farmer, as well as an exhibit showing
the 2009 monthly booked-to-budgeted percentages for Sally Peña, Katseanes’s
exemplar for disparate-treatment analysis.
Katseanes claimed in her deposition that Farmer expressed an interest in
hiring “younger workers” on at least two occasions. Katseanes did not recall
when or in what context the comments were made, except that the first time was
ten to twelve months before her termination. She admitted that Farmer neither
referenced older workers in conjunction with those comments nor made
age-related comments specifically to or about Katseanes. The district court
excluded the testimony based on cases that construed similar language as
insufficient evidence of discrimination. See Cervantez v. KMGP Servs. Co., 349
F. App’x 4, 10-11 (5th Cir. 2009) (unpublished) (Employer “was going to start
hiring young people.”); Berquist v. Wa. Mut. Bank, 500 F.3d 344, 352 (5th Cir.
2007) (Supervisor said: “Performance issues will be promptly and aggressively
dealt with. We will build leaders internally and attract younger talent.”).
stray remarks doctrine survived” Reeves, relying on circuit precedent issued shortly after that
decision. 602 F.3d at 380 n.27 (citing, inter alia, Rubinstein, 218 F.3d 392).
We need not resolve this debate here. Even under a two-step analysis, the stray
remarks at issue do not evince discriminatory animus, and Morgan, the person responsible for
employment decisions, independently agreed that Katseanes should be fired.
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The district court acted within its discretion as to both rulings. By
referencing only “younger workers,” Farmer’s comments have no nexus to the
ADEA’s protected class. Katseanes’s deposition testimony, moreover, failed to
establish that the comments were “proximate in time” or “related to” her
termination. Jackson, 602 F.3d at 380. Similarly, although the excluded exhibit
showed that Peña qualified for a performance plan in 2009, Katseanes must
show that Peña complied with the strictures of her performance plan in order to
show disparate treatment. The exhibit does not speak to that issue.3
IV. Katseanes Lacks Legally Sufficient Proof of Age Discrimination
Katseanes did not offer competent evidence at trial sufficient to establish
that Time Warner replaced her with someone younger. Thus, to make a prima
facie case, the evidence had to show that Time Warner “otherwise” discriminated
against her “because of” her age. To that end, Katseanes points to Time
Warner’s allegedly disparate treatment of her vis-à-vis Peña and to additional
allegedly ageist comments made by Farmer.
Peña shared responsibility for the Ford account, and her booked-to-
budgeted numbers in 2008 were low enough to trigger “corrective action.” She
remains at Time Warner, and, indeed, has been promoted. But Peña was not
similarly situated to Katseanes. Morgan testified that Peña completed the tasks
required by her performance plan. Katseanes admitted that she did not, and she
presented no evidence contradicting Morgan. The record also shows that Peña
far outperformed Katseanes on a booked-to-budgeted basis in 2007. Katseanes
was on a performance plan for most of 2007 and met budget only one month that
year. She therefore fails to show that Time Warner treated Peña differently
under nearly identical circumstances.
3
The exhibit also lists account executives within the ADEA’s protected class who had
booked-to-budgeted numbers similar to Katseanes, were put on performance plans, and
nonetheless remained with Time Warner in 2009.
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Katseanes also relies on a set of alleged comments made by Farmer to
Rebecca Venegas, a former account executive. We have held that stray remarks
“standing alone” are insufficient to create fact disputes. Jackson, 602 F.3d at
380. Regardless, the comments attributed to Farmer are too vague and remote
to qualify as legally sufficient evidence of age discrimination. Venegas testified
that Farmer once remarked after a phone call with Katseanes that she was
“going to clean house,” a comment that does not evince age-related animus.
Another time, Farmer allegedly said that she wanted to “get rid of the older”
account executives, but Venegas did not know whether this referred to age or
tenure. Both comments were made some time before Katseanes was fired, and
Venegas disclaimed that Farmer said she wanted to “get rid” of Katseanes
specifically. Under our “stray remarks” case law, this testimony did not provide
a legally sufficient basis for sending the case to the jury. See Price v. Marathon
Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997).
Accordingly, Katseanes did not show that Time Warner “otherwise”
discriminated against her “because of” her age, and thereby failed to present a
prima facie case of discrimination. The record, in any case, overwhelmingly
supports Time Warner’s performance-related explanation, and Katseanes failed
to raise a fact issue regarding pretext because she has no evidence other than
“stray remarks.” As such, the district court appropriately granted judgment as
a matter of law for Time Warner.4
4
Several of Katseanes’s arguments on appeal have virtually no support in the record.
For example, she claims that Time Warner allegedly hired two younger workers shortly before
her termination who later took over some of her accounts. Those workers, however, were not
mentioned at trial. Indeed, Katseanes testified at her deposition that she did not know what
information they might have that would be relevant to her case.
Katseanes also contends that her final warning was “highly unusual” because Time
Warner jumped “straight to the final stage” of its “progressive disciplinary procedures.” That
assertion is squarely at odds with the record, which catalogues numerous performance-related
meetings between Katseanes and her supervisors from early 2007 until her termination.
Katseanes also testified that the only “corrective action” steps not used against her as of
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Conclusion
Because Katseanes failed to present legally sufficient evidence of age
discrimination at trial, we AFFIRM the district court’s grant of judgment as a
matter of law in Time Warner’s favor.
January 2008 were a “final warning” and termination. This is not a case where an employer
suspiciously has terminated an employee with scant notice for violating unknown expectations
or policies. Cf. Laxton, 333 F.3d at 581 (employer provided little notice of alleged violations
of company policy and issued a “final” written warning one day before employee was fired).
10