United States Court of Appeals Fifth Circuit F I L E D REVISED April 3, 2007 UNITED STATES COURT OF APPEALS March 20, 2007 For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 06-10267
DARRY L. BURRELL,
Plaintiff-Appellant,
VERSUS
DR PEPPER/SEVEN UP BOTTLING GROUP, INC.; DR PEPPER/SEVEN UP BOTTLING GROUP, L.P.
Defendants-Appellees
Appeal from the United States District Court For the Northern District of Texas, Dallas Division
Before DAVIS and STEWART, Circuit Judges, and GODBEY*, District Judge.
W. EUGENE DAVIS, Circuit Judge:
Darry L. Burrell (“Burrell”) appeals the dismissal on summary
judgment of his employment discrimination and retaliation claims
against defendant Dr. Pepper/Seven Up Bottling Group, L.P. (“Dr.
* District Judge of the Northern District of Texas, sitting by designation.
-1- Pepper”). We AFFIRM in part and VACATE and REMAND in part.
I.
Burrell, an African-American male, began his employment with
Dr. Pepper as the Corporate Purchasing Manager in May 2001.
Burrell initially worked under Penny Soriano (“Soriano”), Dr.
Pepper’s Vice President of Purchasing, to centralize and manage
national purchasing for Dr. Pepper. Burrell’s responsibilities
included assisting in both the negotiation and management of
various term contracts with Dr. Pepper suppliers.
In May 2002, Soriano resigned and recommended that Burrell be
hired to replace her as Vice President of Purchasing. Burrell
spoke with Tom Taszarek ("Taszarek"), Executive Vice President of
Administration, expressing his interest in being promoted to the
vacant position. Ultimately, however, Dr. Pepper did not promote
Burrell and instead sought a replacement from outside the company.
The parties dispute the reason given by Dr. Pepper for its decision
not to promote Burrell. Burrell alleges that Dr. Pepper told him
that it wanted to hire someone with more “purchasing experience.”
On the other hand, Dr. Pepper states "purchasing experience in the
bottling industry" was the relevant criteria. In June 2002,
Burrell suggested to Taszarek that his failure to be promoted was
actually the result of racial discrimination and he gave Taszarek
a copy of the book Roberts v. Texaco: A True Story of Race and
Corporate America. Burrell told Taszarek that his treatment at Dr.
Pepper was analogous to the experience of the plaintiff employee in
-2- the litigation detailed by the book.
In October 2002, Dr. Pepper hired Ted Koester ("Koester"), a
white male, to fill the vacant position of Vice President of
Purchasing. Immediately preceding his arrival at Dr. Pepper,
Koester served as the Logistics Manager for a Coca-Cola
distribution center in San Antonio. He held that position for
approximately two years, but had been at Coca-Cola for 13 years.
According to his resume, Koester, as Logistics Manager, was
responsible for the management of a 27 million case distribution
center with a direct staff of 99 people. In addition, Koester had
experience in the negotiation of contracts with carriers and the
purchasing of production/warehouse materials. In his deposition,
Koester explained that one such contract was valued at near 30
million dollars.
Although Burrell was not promoted to the position of Vice
President of Purchasing, the parties agree that he took on many
duties associated with the position after the departure of Soriano
in May 2002, through Koester’s hiring in October 2002, and
continuing into February 2003 while Koester became familiar with
the company and his new job. Burrell reported directly to CEO Jim
Turner (“Turner”) during this time and aided in the company’s
purchasing functions. Dr. Pepper concedes that Burrell got high
marks for his work during this transition period. Burrell received
a salary increase and also received a bonus in February 2003 for
his performance. In addition, Burrell was selected in March 2003
-3- to attend an annual company trip designated for high performing
employees.
Despite these positive performance indicators, Burrell and
Koester clashed, almost from the beginning of Koester’s employment.
During their first telephone conversation in October of 2002 (just
after Koester was hired), Burrell says he became concerned about
Koester’s qualifications when Koester allegedly admitted to him
that he had no purchasing experience and that Burrell would have to
teach him purchasing. During that same conversation, Burrell says
he became offended when Koester stated that he had no qualms about
firing employees and would even fire his own mother; in response,
Burrell hung up on Koester. Later that month, Burrell claims that
Koester attempted to tell him a racist joke. In addition, around
the same time, Koester allegedly told Burrell that there was
something about Burrell that intimidated him. For his part,
Koester alleges that Burrell engaged in various insubordinate acts
during this period including failing to submit weekly reports and
vacation requests as well as refusing to complete an assigned
project.
These exchanges prompted several meetings between Burrell and
Taszarek in which Burrell would complain about Koester's behavior
and lack of qualifications. In one meeting with Taszarek, in the
Spring of 2003, Burrell compared his situation to that of class
action litigants who had alleged racial discrimination against
Coca-Cola. Burrell gave Taszarek copies of two magazine articles
-4- that detailed the lawsuit.
The conflict accelerated in July 2003 when Koester gave
Burrell a negative performance review. The report rated Burrell as
marginal and unsatisfactory (the two lowest ratings) in five of six
categories of performance. Burrell requested and was granted
permission to respond in writing to the evaluation and he delivered
his written response (with copies to the CEO Turner and Taszarek)
on August 4, 2003. Burrell’s response characterized Koester’s
evaluation as a “completely inappropriate and unprofessional attack
on [his] character” and went on to dispute the accuracy of the
evaluation through three pages of supporting facts. Further,
Burrell questioned Koester's ability to give an accurate evaluation
for the previous year since Koester had not arrived until October
2002 and, even then, Burrell continued reporting directly to the
CEO until February 2003. On the same day that Burrell's response
was delivered and after consultation between Taszarek and Turner,
Dr. Pepper terminated Burrell's employment.
After refusing a conditional severance package, Burrell filed
a charge of discrimination and retaliation with the Equal
Employment Opportunity Commission (“EEOC”) over Dr. Pepper’s
failure to promote him and his subsequent termination. After
receiving a right-to-sue letter from the EEOC, Burrell filed suit
in district court for (1) unlawful discrimination for refusal to
promote, (2) unlawful discrimination for termination based upon
race, and (3) unlawful retaliation for termination based upon
-5- previous complaints of race discrimination.
Dr. Pepper moved for summary judgment. In support, Dr. Pepper
asserted that Burrell had failed to sufficiently refute its
legitimate, non-discriminatory reason for hiring Koester rather
than promoting Burrell: Koester’s greater experience in bottling.
On the claims related to Burrell’s termination, Dr. Pepper alleged
that the termination was because of insubordination, and
specifically cited (1) Burrell's failure to turn in weekly reports
and vacation requests to Koester; (2) Burrell's complaints about
Koester's qualifications; (3) Burrell's refusal to research
possible cost and supplier reductions in regards to a company
project; and (4) Burrell's written response to Koester's
evaluation.
The district court granted Dr. Pepper’s motion for summary
judgment, dismissing all of Burrell’s claims. On the failure to
promote claim, the district court held that Burrell could not
demonstrate that Dr. Pepper’s reason was a pretext for
discrimination because the evidence did not establish that he was
“clearly more qualified” than Koester. On the termination claims,
the district court held that Burrell had not raised a genuine issue
of fact on the legitimacy of Dr. Pepper’s proffered reason for his
termination, namely, insubordination.
II.
We review the district court's grant of summary judgment de
-6- novo.1 Summary judgment is proper “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.”2 An issue is “genuine” if the
evidence is sufficient for a reasonable jury to return a verdict
for the non-moving party.3 A fact issue is “material” if its
resolution could affect the outcome of the action.4 We construe
all facts and inferences in the light most favorable to the
non-moving party when reviewing a summary judgment.5
III.
A claim of employment discrimination can be proven through
direct or circumstantial evidence.6 Where, as here, the plaintiff
does not produce any direct evidence of discrimination, we apply
the well-known McDonnell-Douglas burden-shifting framework as
1 Jones v. Comm'r, 338 F.3d 463, 466 (5th Cir. 2003). 2 Fed. R. Civ. P. 56(c). 3 Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). 4 Id. 5 Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005) (internal quotation and citation omitted). 6 Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001).
-7- modified and restated by this court.7
Under the modified McDonnell-Douglas approach, the plaintiff
must first demonstrate a prima facie case of discrimination; the
defendant then must articulate a legitimate, non-discriminatory
reason for its decision to terminate the plaintiff; and, if the
defendant meets its burden of production, the plaintiff must then
offer sufficient evidence to create a genuine issue of material
fact that either (1) the employer’s reason is a pretext or (2) that
the employer's reason, while true, is only one of the reasons for
its conduct, and another “motivating factor” is the plaintiff's
protected characteristic.8
A.
Dr. Pepper concedes that Burrell has established his prima
facie case on his failure to promote claim: (1) he belongs to a
protected class; (2) he applied for and was qualified for a
position for which applicants were being sought; (3) he was
rejected; and (4) a person outside of his protected class was hired
for the position.9
Dr. Pepper responds to Burrell’s prima facie case with a
legitimate, nondiscriminatory reason for not promoting Burrell to
7 See Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). 8 Id. 9 See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680-81 (5th Cir. 2001).
-8- the Vice President of Purchasing Position: Dr. Pepper desired
someone with more “purchasing experience in the bottling industry.”
Burrell has two methods available to him to try to prove that
Dr. Pepper’s proffered reason for failing to promote him was a
pretext for racial discrimination: (1) Burrell could show that Dr.
Pepper’s proffered explanation is false or “unworthy of credence”;10
or (2) Burrell could try to prove that he is “clearly better
qualified” than the person selected for the position.11
We first consider whether Burrell produced sufficient evidence
to demonstrate that Dr. Pepper’s proffered rationale for its
employment decision is false. An employer’s explanation is false
or unworthy of credence if it is not the real reason for the
employment action.12
Burrell attempts to demonstrate the falsity of Dr. Pepper’s
experience rationale primarily by comparing his relevant purchasing
experience with that of Koester. Specifically, Burrell cites his
10 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). 11 Celestine v. Petroleos de Venzella SA, 266 F.3d 343, 356-57 (5th Cir. 2001). The district court only assessed whether Burrell had established that he was “clearly better qualified” than Koester. While a showing that a plaintiff is "clearly better qualified" is one way of demonstrating that the employer's explanation is a pretext, it is not the only way. Pretext may be shown by any evidence which demonstrate’s the employer’s proffered reason is false. See, e.g., Gee v. Principi, 287 F.3d 342, 347-48 (5th Cir. 2002) (an employer's inconsistent explanations for its employment decisions at different times permits a jury to infer that the employer's proffered reasons are pretextual). 12 Laxton, 333 F.3d at 578.
-9- role as the Corporate Purchasing Manager under Penny Soriano as
well as his increased responsibilities during the period of time
after her departure and continuing into the first several months of
Koester’s tenure as comprising nearly two years of relevant
“purchasing experience in the bottling industry.” Burrell notes
that, in addition to the length of his service, the strength of his
experience is demonstrated by the special recognition he received
through increases in pay and his invitation on the company trip.
Burrell argues that Koester’s experience at the time of the hiring
decision was far less extensive than his, a fact he believes is
established by the depositions of Taszarek and Koester. Burrell
argues that evidence of his strong background in purchasing and
Koester’s relatively weak background, along with his exemplary
performance of the Vice President of Purchasing duties during
Koester’s initial months of employment, supports the conclusion
that Dr. Pepper did not seek someone with more “purchasing
experience in the bottling industry.”
Burrell also attempts to demonstrate the falsity of Dr.
Pepper’s rationale by arguing that Dr. Pepper’s explanation for its
employment decision has failed to remain consistent. He notes that
initially, in Dr. Pepper’s letter to the EEOC, it asserted that
Burrell was passed over based on his lack of “purchasing
experience,” but that in its motion for summary judgment below, Dr.
Pepper asserted that Koester’s greater “bottling experience” was
the reason Burrell was not promoted. Burrell argues that neither
-10- of these rationales matches Dr. Pepper’s explanation to this court,
that Koester was selected over Burrell because he had more
“purchasing experience in the bottling industry.”
Dr. Pepper characterizes the evidence differently. The
company states that, far from representing significant purchasing
experience, Burrell’s duties during the period immediately before
and after Koester’s hiring can best be characterized as that of a
functionary, responsible only for information collection.
Burrell’s assistance in contract negotiations being conducted by
CEO Jim Turner, Dr. Pepper continues, did not actually constitute
hands-on negotiation and purchasing of raw materials and supplies
which it expected the Vice President of Purchasing to perform. On
Koester’s experience, the company argues that Koester’s 13 years
with Coca-Cola and his most recent two years of management
experience in supply chain system and procurement procedures were
all valuable experience in taking over purchasing for Dr. Pepper.
Dr. Pepper points out, for instance, that one obvious benefit of
this experience was Koester’s relationships with a large number of
Dr. Pepper’s suppliers. In addition, Dr. Pepper cites Koester’s
deposition testimony, establishing his purchase of over $30 million
in equipment while at Coca-Cola, as evidence of his qualification
for the Vice President of Purchasing position.
Dr. Pepper also attempts to reconcile the apparent
inconsistencies between the explanations for not promoting Burrell
it offered to the EEOC (“purchasing experience”) and to this court
-11- (“purchasing experience in the bottling industry”) by describing
the second statement as a mere clarification of the type of
purchasing experience that Dr. Pepper felt was important.
Having considered these arguments, and after our own
independent review of the record, we conclude that a genuine issue
of material fact remains regarding whether Dr. Pepper’s hiring
decision was based on purchasing experience in the bottling
industry.
Despite Dr. Pepper’s evidence of Koester’s long service with
its top competitor, it is clear that the bulk of his experience was
not in the negotiation of contracts and purchasing raw materials
and supplies, but rather in management and operations. Koester’s
own resume and deposition testimony indicates that he lacked
significant purchasing experience in the bottling industry. For
instance, while at one point listing contract negotiation as one of
his duties as Logistics Manager, Koester’s resume offered no
specific instance of contract negotiation in the 13 bullet pointed
highlights of his accomplishments at Coca-Cola. The resume notably
omits mention of the $30 million in purchasing which Koester
asserted in his deposition. However, even accepting the $30
million claim at face value, Koester conceded that this did not
necessarily qualify him to handle Dr. Pepper’s purchasing
operation, since that budget approached “north of $750 million”
which made “quite a bit of difference.” In addition, while Koester
had a relationship with a large number of Dr. Pepper’s suppliers,
-12- this apparent strength arguably applied just as strongly, if not
more so, to Burrell’s case for the promotion, since Burrell
presumably had working relationships with all of Dr. Pepper’s
current suppliers.
Most significantly, the testimony of Taszarek, the man who
ultimately hired Koester, permits the inference that Dr. Pepper was
aware that Koester had less purchasing experience in the bottling
industry than Burrell. For instance, at one point in his
testimony, Taszarek admitted that Burrell had more relevant
purchasing experience than Koester.13 He also acknowledged that
Koester’s “main experience was[] in distribution and warehousing”
and not in purchasing for product lines or negotiation of product
prices.14 Taszarek further conceded that, as a logistics manager,
Koester probably would not have been involved in the negotiation of
13 Q: Would you agree that Mr. Burrell had more purchasing experience in the purchasing department than Mr. Koester did? A: Indirectly, yes. I mean, I guess what he had done before, as far as sitting at a desk and placing orders and coordinating purchases, yeah, I would say he had more of that.
. . . .
A: Yeah, I would say he had done more of what I would call purchasing, straight ahead purchasing. 14 Q: Right. But is that what you understood Mr. Koester’s main experience was, in distribution and warehousing? A: I guess so. If I understand the question right, yeah. Q: Okay. A: In other words, he was not running production lines. Q. Right. A: Correct. Q: And he wasn’t purchasing for production lines? A: I don’t believe he was doing that much of it, no. No.
-13- contracts.15
It is also clear that Burrell’s duties at Dr. Pepper as a
Manager and then as a stopgap Vice President of Purchasing gave him
significant purchasing experience by the time Koester was hired.
A reasonable jury would be entitled to reject Dr. Pepper’s efforts
to minimize Burrell’s responsibilities from May 2002 until February
2003 as not comprising significant or relevant purchasing
experience. Taszarek explained that it was the ultimate duty of
the Vice President of Purchasing and his staff to “collect[] all
the information so that the CEO can make the appropriate decision”
on purchasing contracts. Taszarek stated that Burrell excelled in
exactly this function, i.e., summarizing different proposals and
contacting the suppliers on behalf of CEO Turner.16 He further
conceded that Koester had never done the type of information
gathering that the CEO of a company relies on in order to negotiate
15 Q: All right. But the logistics person hasn’t negotiated the contracts? A: No, huh-uh. Q: And purchased it to make sure that it’s available to be there, correct? A: No. He orders it. The logistics person orders the product. The price of the product was negotiated somewhere else.
16 Taszarek stated in his deposition: “[W]hen Penny left, then we got into an end-of-year renegotiation, you know, renegotiation of some major contracts we had. Darry did a great job of picking up the slack, and these negotiations are – obviously, all the decisions are made by the CEO, but he needs a lot of input on – as far as summarizing different proposals and contact with the suppliers, and I remember he gave it a great effort, and Mr. Turner was very pleased with his efforts.”
-14- contracts. In addition, Burrell produced a memorandum he wrote to
Turner reporting on his activities during a several week period.
In the January 17, 2003 memo, Burrell described the results of
negotiations which he had conducted without Turner’s participation
and in which he and another Dr. Pepper employee decided to award
several business contracts. Further, while taking issue with
certain aspects of Burrell’s performance, Koester’s performance
review of Burrell also indicates that Burrell was responsible for
“negotiating with suppliers” and for “ensuring [Dr. Pepper
receives] the best combination of price, quality and service.”
In addition to evidence on Koester and Burrell’s
qualifications, Dr. Pepper’s rationale for its hiring decision is
also suspect because it has not remained the same. While Dr.
Pepper offers an explanation for the difference between the reason
for promoting Koester over Burrell it offered to the EEOC
(“purchasing experience”) and the one offered to this court
(“purchasing experience in the bottling industry”), its brief does
not attempt to explain how either explanation is consistent with
its arguments to the district court which were framed in terms of
Burrell’s insufficient “bottling” experience. This unexplained
inconsistency was further evidence from which a jury could infer
that Dr. Pepper’s proffered rationale is pretextual.17
17 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).
-15- Given the summary judgment evidence discussed above, a
reasonable jury could conclude that Koester’s experience did not
exceed Burrell’s and that Dr. Pepper was aware of this fact. It
follows that a reasonable factfinder could conclude that Dr.
Pepper’s asserted justification for hiring Koester (his greater
purchasing experience in the bottling industry) is “unworthy of
credence” and a pretext for intentional discrimination.18
As the Supreme Court explained in Reeves v. Sanderson Plumbing
Prods., Inc.:
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.19
The Reeves Court went on to state that there may be rare instances
in which a showing of pretext is insufficient to sustain a jury’s
finding on discrimination, such as when: (1) the record
conclusively reveals some other, nondiscriminatory reason for the
employer’s decision, or (2) the plaintiff creates only a weak issue
of fact as to whether the employer’s reason was untrue, and there
is abundant uncontroverted evidence that no discrimination
18 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 2108, 147 L.Ed.2d 105 (2000) (“Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”). 19 Reeves, 530 U.S. at 147 (internal quotation marks and citations omitted).
-16- occurred.20
Dr. Pepper offers no other nondiscriminatory reason for the
employment decision nor does the record present uncontroverted
evidence that no discrimination occurred. Accordingly, on this
record, a jury could conclude that Dr. Pepper’s proffered reason
for failing to promote Burrell is false and that intentional
discrimination was the real motive.21 Summary judgment was
therefore inappropriate.22
B.
Burrell also asserts that his termination was either the
product of discrimination on account of his race or retaliation for
his complaints of racial discrimination.
Assuming Burrell can establish a prima facie case on both
counts, Burrell acknowledges that Dr. Pepper has come forth with a
legitimate, non-discriminatory reason for his termination: his on-
the-job insubordination. As stated above, Dr. Pepper cited the
following specific instances of insubordination: (1) Burrell's
failure to turn in weekly reports and vacation requests to Koester;
20 Id. at 148. 21 See Laxton, 333 F.3d at 585 (where plaintiff had made out both a prima facie case and a sufficient showing of pretext, and where none of the rare circumstances identified in Reeves applied, plaintiff had produced sufficient evidence to withstand a motion for judgment as a matter of law).
22 Because we resolve Burrell's claim on the above ground, we need not consider whether Burrell established that he was "clearly more qualified."
-17- (2) Burrell's complaints about Koester's qualifications; (3)
Burrell's refusal to research possible cost and supplier reductions
in regards to a company project; and (4) Burrell's written response
to Koester's evaluation. The record reflects that the dispute over
the weekly reports and the unchallenged allegation that Burrell
would often complain about Koester's qualifications were issues
which probably contributed to the strained relationship between the
men. However, given that Burrell was fired on the day his
evaluation response was delivered, the parties focus primarily on
Burrell’s response to Koester’s negative evaluation as the primary
reason for the termination.
Burrell asserts that Dr. Pepper’s decision to terminate his
employment based on the evaluation response is a pretext for
discriminatory intent, however, he offers little in the way of
record evidence in support of this view. As detailed above, the
performance evaluation response authored by Burrell begins by
characterizing Koester's initial evaluation as an inappropriate and
unprofessional attack and questions Koester's ability to give an
accurate evaluation. The response goes on to attribute the
negative review to Koester’s “biased perception” of Burrell’s on-
the-job performance. Throughout his response, Burrell accuses
Koester of being ill informed and unqualified to critique his
performance.
While the response includes significant supporting facts and
examples, Burrell made clear his lack of respect for Koester's
-18- authority, asserted no responsibility for their bad relationship,
and made no provisions for future changes. Both the evaluation and
the response demonstrate the failed working relationship between
Burrell and Koester. Notably, neither document contains any
mention of a racial or retaliatory basis for their disagreements.
Burrell's brief unpersuasively suggests that Dr. Pepper set up
Burrell with a false and negative performance review in order to
provide a reason to terminate him. However, he asserts no specific
facts to support this allegation and there was unchallenged
deposition testimony from Koester that it was Burrell who had
requested a formal written review.
On this record, we agree with the district court that no
reasonable jury could infer that racial discrimination or
retaliatory intent was the reason or a motivating factor in
Burrell’s termination.23
IV.
For these reasons, we AFFIRM the district court’s order
dismissing Burrell’s claim based on discriminatory and retaliatory
discharge. However, we VACATE the order granting Dr. Pepper
summary judgment on Burrell’s discriminatory failure to promote
23 Cf. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007) (summary judgment on Title VII claim appropriate where employee had failed to rebut employer’s insubordination rationale based, in part, on employee’s repeated criticisms of direct supervisor). No “clearly better qualified” analysis is necessary on Burrell’s termination claims because he did not make any such argument in his brief.
-19- claim and REMAND the case to the district court for further
proceedings consistent with this opinion.
AFFIRMED IN PART.
VACATED IN PART.
REMANDED.
-20-