Filed: Oct. 13, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 13, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-20924 LORENZO G. BAKER, Plaintiff - Appellant versus RANDSTAD NORTH AMERICA, L.P., Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas (No. 4:02-CV-H-02-4870) Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Lorenzo Baker appeals the district c
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 13, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-20924 LORENZO G. BAKER, Plaintiff - Appellant versus RANDSTAD NORTH AMERICA, L.P., Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas (No. 4:02-CV-H-02-4870) Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Lorenzo Baker appeals the district co..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 13, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20924
LORENZO G. BAKER,
Plaintiff - Appellant
versus
RANDSTAD NORTH AMERICA, L.P.,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
(No. 4:02-CV-H-02-4870)
Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Lorenzo Baker appeals the district court’s
order granting summary judgment to Defendant-Appellee, Randstad
North America, on his employment discrimination claim. Baker
contends that he successfully established a prima facie case of
race discrimination and that a genuine issue of material fact
exists as to whether Randstad’s articulated reason for terminating
him was a pretext for race discrimination.
I. FACTS AND PROCEEDINGS
*
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this opinion should not be published and is not precedent except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.
Randstad is a staffing company that places individuals in
temporary and permanent positions in a variety of sectors,
including light industrial and office support. Randstad entered
the Houston market in 2000 and hired Baker as a Business
Development Manager (“BDM”) that spring. BDMs are responsible for
generating new business for Randstad. Randstad requires each BDM
to make at least 75 contacts per week with potential clients and
have ten meetings per week with decision makers at potential
clients’ businesses. Randstad also expects BDMs to secure new
accounts on a consistent, weekly basis. Once the BDM closes the
initial deal, Randstad agents assume responsibility for client
relationship and work with the client to fill personnel vacancies
as they occur. Baker’s initial supervisor was Regional Market
Manager Alyson Blake. In the fall of 2000, Ron Griffin replaced
her.
Within his first two months at Randstad, Baker secured Reliant
Energy as a client. The Reliant account generated substantial
revenue, and Baker received special recognition for being the top
revenue producing BDM in the Houston market as a result of it.
Ultimately, however, Randstad had to drop the account in early 2001
because it was not profitable. Specifically, it cost Randstad money
to place employees with Reliant because of various workers’
compensation claims that arose out of Reliant placements.
Securing the Reliant account turned out to be the high point
in Baker’s tenure at Randstad. Notably, although Baker typically
2
made a qualifying number of contacts each week,1 he admittedly
never met the requirement of ten meetings per week with the
potential clients’ decision makers. In the two months before he
was fired, Baker averaged approximately four meetings per week.
Baker also failed to secure new accounts on a consistent basis.
During his 11 months with Randstad, Baker secured only nine new
client accounts; Randstad expected Baker to secure more than three
times that many new accounts in the same period.
In the fall of 2000, Randstad entered a period of financial
decline and laid off 250 employees nationwide. In December,
Randstad instructed the Regional Market Managers to terminate the
employees who were their lowest performers. Although Baker was
near the bottom of the list on the basis of his activity levels,
his supervisor, Griffin, decided to keep Baker on the staff and
monitor his progress over the following three months. Ultimately,
Randstad laid off eight employees in the Houston market in
December. The only BDM who Griffin selected for layoff at this
time was Heather Barladge, a white female. Griffin selected
Barladge because she was unable to meet her activity requirements.
Of the total number of employees that Randstad laid off in
December, more than half were white.
At the end of the first quarter of 2001, Randstad again
1
The evidence shows that Baker failed to meet this
requirement at least once. During the week of February 23, 2001,
Baker made only 48 contacts.
3
initiated a nationwide reduction in force, this time eliminating
approximately 200 employees. As with the December 2000 layoffs,
Randstad instructed its Regional Market Managers to lay off their
lowest performers. In evaluating the BDMs under his supervision,
Griffin placed special emphasis on their abilities to secure new
accounts. If a BDM was underperforming in that area, Griffin would
evaluate the BDM’s activity levels, i.e., the number of contacts
that the BDM made each week and the number of client meetings that
the BDM had each week. Griffin also considered productivity, which
includes revenue, gross margin, and profitability. By April of
2001, Baker had failed to improve his performance, and he was the
lowest performing BDM in the Houston market. Accordingly, Griffin
selected him for termination. Baker was the only BDM in the
Houston market that Randstad laid off at that time.
Baker filed discrimination charges against Randstad with the
EEOC. The EEOC repeatedly requested documentation from Randstad
regarding the activity levels of the retained BDMs. Randstad,
however, produced only the activity reports for Baker and Melissa
Tennison, a Hispanic employee, for the two-month period preceding
Baker’s termination. These reports show that Tennison secured more
accounts and had a much higher activity level than Baker during
that period. After investigation, the EEOC issued Baker a right to
sue letter. He then sued Randstad under Title VII and 42 U.S.C. §
1981, alleging that Randstad terminated him because he is black.
Randstad filed a motion for summary judgment, asserting that
4
there is no evidence that its articulated nondiscriminatory reason
for terminating Baker was a pretext for race discrimination. The
district court granted summary judgment to Randstad on two bases.
First, the district court ruled that Baker had failed to establish
a prima facie case of race discrimination because he submitted no
evidence that he was replaced by someone outside the protected
group. Second, the district court concluded that there was
insufficient evidence to create a genuine issue of material fact as
to whether Randstad’s articulated reason for terminating Baker was
pretextual. Baker appeals the district court’s grant of Randstad’s
summary judgement motion, arguing that (1) he established a prima
facie case of race discrimination, and (2) an issue of fact exists
as to whether Randstad’s reason for terminating him is a pretext
for race discrimination.
We have jurisdiction over Baker’s appeal of the district
court’s judgment under 28 U.S.C. §§ 1331 and 1291.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment in
favor of Randstad de novo.2 We shall affirm the district court
when there is no genuine issue of material fact and the moving
2
Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th
Cir. 2005).
5
party is entitled to summary judgment as a matter of law.3 We
consider the evidence in the light most favorable to the non-
movant, but he must point to evidence that shows that there is a
genuine issue of fact for trial.4
B. Legal Standard
Both Title VII and § 1981 prohibit employers from taking
adverse employment actions against employees on the basis of race.5
As there is no direct evidence of discrimination in this case, we
evaluate Baker’s claims under the burden-shifting framework of
McDonnell Douglas Corp. v. Green.6 First, Baker must establish a
prima facie case of race discrimination. This means that Baker
must demonstrate that (1) he is a member of a protected class, (2)
he was qualified for the job, (3) he suffered an adverse employment
action, and (4) similarly situated employees outside the protected
group were treated more favorably than he.7 Once Baker establishes
a prima facie case of race discrimination, the burden shifts to
Randstad to articulate a legitimate, non-discriminatory reason for
3
Id.
4
Id.
5
42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981(a).
6
411 U.S. 792, 802 (1981). See also Felton v. Polles,
315
F.3d 470, 483-84 (5th Cir. 2002)(noting that when a plaintiff
brings Title VII and § 1981 claims as parallel causes of action,
the claims require the same proof to establish liability).
7
Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.
2005).
6
terminating Baker. If Randstad does so, Baker has the ultimate
burden of proving that Randstad’s articulated reason is a pretext
for race discrimination.8
On appeal, Randstad has waived any argument that Baker did not
establish his prima facie case.9 Accordingly, we address only the
issue whether there was sufficient evidence to establish that
Randstad’s articulated reason for terminating Barker was a pretext
for race discrimination. Baker contends that (1) the absence of
documentary evidence regarding the activity levels of most of the
other BDMs who were not fired when he was, invokes the spoliation
doctrine and alone establishes an issue of fact as to whether
Randstad’s articulated reason for terminating Baker was pretextual;
(2) the evidence shows that Baker was a better employee than both
Melissa Tennison, a female Hispanic BDM, and Stephen Horton, a
white male BDM; and (3) Randstad engaged in a pattern of laying off
black employees.
C. Misplaced Documentary Evidence and Spoliation
8
Id.
9
Randstad waives the issue because in its summary judgment
motion it assumed for the sake of argument that Baker had
established his prima facie case.
Furthermore, the district court erred when it ruled that
Baker failed to establish his prima facie case for failing to
submit evidence that he was replaced by someone outside the
protected class. A plaintiff in a reduction-in-force case is
generally not replaced at all, and thus to establish his prima
facie case, he need not prove that he was replaced by someone
outside the protected class. See Palasota v. Haggar Clothing
Co., 342 F.3d 539, 576 (5th Cir. 2003).
7
Baker asserts that Randstad’s failure to produce full
documentation in support of its decision to terminate Baker invokes
the spoliation doctrine and justifies a presumption that the
withheld evidence would have been unfavorable to Randstad. Thus,
argues Baker, this non-production alone raises an issue of fact as
to whether Randstad’s reason for terminating him was pretextual and
exempts him from an adverse summary judgment. Randstad counters
that it simply misplaced the relevant documents.
At the outset, Baker cites no authority for the proposition
that misplaced or un-produced documents establish a per se
presumption of pretext in an employment discrimination case.
Furthermore, spoliation is a specific doctrine that requires the
party invoking it to show, inter alia, that his adversary destroyed
or misplaced the evidence in bad faith.10 Here, Baker neither
specifically alleged that Randstad misplaced the documents in bad
faith nor moved the district court to determine whether Randstad
misplaced the documents in bad faith.11 In fact, Baker never even
moved the district court to compel Randstad to produce the missing
documents. As Baker bears the ultimate burden of proving pretext,
the employer’s destruction or withholding of the missing documents
10
Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir.
1999).
11
Compare id. at 755 (noting that the district court held a
hearing to determine whether the defendant destroyed relevant
evidence in bad faith to ultimately determine whether the
spoliation doctrine applied).
8
could very well have damaged him.12 Nevertheless, the summary
judgment record on appeal is devoid of evidence addressing whether
Randstad misplaced, withheld, or destroyed the documents in bad
faith. Therefore, our hands are tied: As there is no evidence of
bad faith, Baker’s spoliation argument fails.
D. Other Evidence
Baker contends that, even absent the aforesaid records, he
presented sufficient evidence to create a genuine issue of material
fact as to whether Randstad’s reason for terminating him was
pretextual. Specifically, Baker points to evidence that he was the
highest revenue generator for Randstad in the Houston market.
Baker also offers evidence that other BDMs whom Randstad did not
fire never secured any accounts at all.
1. Baker’s Revenue
Randstad does not dispute that Baker was the highest revenue
generator in the Houston market. This was because of the Reliant
account, which Baker secured at the beginning of his employment
with Randstad. Significantly, however, revenue was neither the
only nor the most important factor that Griffin considered in
deciding whom to fire. Instead, Griffin focused on both
productivity and activity levels. Griffin explained that a high
revenue generator would be a proper candidate for termination if he
12
See id. at 757 (noting that the plaintiff in an employment
discrimination suit bears the ultimate burden of proof and that
the destruction of documents could unfairly harm him).
9
was “living off an account [he] had closed six months before” and
his activity levels were not up to par. As noted, Griffin reviewed
the BDMs’ activity reports and, in so doing, paid special attention
to the BDMs’ activity levels and to new accounts that the BDMs
generated. Furthermore, Griffin focused on the months immediately
preceding the April 2001 reduction in force.
Griffin chose to lay off Baker because he failed to bring in
new business on a consistent, weekly basis and his activity levels
were the lowest in the region: Baker was never able to secure ten
meetings with decision makers in any week. Moreover, despite
Baker’s revenue generation, his overall productivity levels are not
stellar under Griffin’s analysis. This is because Baker was
continuing to “live off” the Reliant account. Notably, Baker
closed the Reliant account more than eight months before his
termination, and that particular account had negative profitability
despite its gross revenue generation because of the high costs and
expenses that Randstad incurred in staffing Reliant. Ultimately,
Baker’s argument regarding Griffin’s evaluation of his performance
in light of his high revenue generation does not demonstrate that
Randstad fired Baker because of his race.13 That argument is
insufficient to impugn Randstad’s articulated, nondiscriminatory
reason for terminating Baker.
13
Sandstad v. CB Richard Ellis, 309 F.3d 893, 899 (5th Cir.
2002)(“Merely disputing [the employer’s] assessment of [the
employee’s] performance will not create an issue of fact.”).
10
2. Tennison’s Performance
Randstad did produce Tennison’s activity reports for the two-
month period preceding Baker’s termination. These reports show
that she met or exceeded Randstad’s requirements for weekly
contacts and meetings and that she secured seven new accounts
during that period. In comparison, Baker’s activity reports show
that he never met the weekly meetings requirement and secured only
two new accounts during that period.
Baker proffers the declaration of Kimberly Sanders to
contradict Tennison’s record. Specifically, Sanders stated that
Tennison had not sold a single account from the time Randstad hired
her through March of 2001. Construing Sanders’s testimony in the
light most favorable to Baker, i.e., assuming that Randstad’s
activity reports for Tennison are erroneous, still does not create
an issue of fact. This is because, even if the reports are proved
to be erroneous, it is undisputed that Griffin relied on them in
making the reduction-in-force determinations, and Tennison’s
purportedly erroneous activity reports nevertheless show her to be
a more productive employee than Baker. “The question is not
whether an employer made an erroneous decision; it is whether the
decision was made with discriminatory motive. Even an incorrect
belief that an employee’s performance is inadequate constitutes a
legitimate, nondiscriminatory reason.”14 Accordingly, Sanders’s
14
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th
Cir. 1995)(internal quotations and citations omitted).
11
statement fails to raise an issue of fact as to whether Randstad’s
articulated reason for terminating Baker was a pretext for race
discrimination.
3. Horton’s Record
Baker contends that Randstad should have laid off Horton
instead of him because Horton had not secured any accounts from the
time he was hired by Randstad in March of 2001 until the time that
Baker was terminated in April of 2001. Assuming this to be true,
the evidence in the record is undisputed that (1) Baker secured no
new accounts during the same period, (2) Baker failed to fulfill
his activity requirements, and (3) unlike Baker, Horton met his
activity requirements in the weeks preceding Baker’s termination.
Accordingly, Baker’s testimony that Horton failed to secure any new
accounts before his termination is insufficient to raise an issue
of fact as to whether Randstad’s articulated reason for terminating
Baker was a pretext for race discrimination.
E. Pattern of Terminating Black Employees
Finally, Baker insists that Randstad engaged in a pattern of
terminating black employees, and that this pattern raises an issue
of fact as to whether Randstad’s articulated reason for terminating
Baker is pretextual. Although statistical evidence can be probative
of pretext, it is extraordinarily rare that raw numbers can
12
insulate a plaintiff from summary judgment.15 Indeed, “[t]he
probative value of statistical evidence ultimately depends on all
the surrounding facts, circumstances, and other evidence of
discrimination.”16
For openers, Baker fails to show that a distinct pattern of
laying off black employees relative to white employees even
existed. In the first round of lay offs late in 2000, Randstad
terminated eight employees in the Houston market: Five were white;
three were black. Of the BDMs terminated in this initial round of
layoffs, only one in the Houston market was selected by Griffin,
and she was white. Baker also asserts that Randstad terminated
four black BDMs (including himself) and six black agents in the
Houston market in 2001. There is also evidence that Randstad laid
off at least one white BDM in the Houston market in 2001 for low
activity levels, but there is no evidence in the record as to the
total number of white employees Randstad laid off at that time. We
cannot conclude from the evidence before us that Randstad engaged
in a pattern of targeting black employees for termination.
Moreover, even if Baker’s numbers had shown a possible
pattern, his argument still fails. This is because statistical
15
E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1185-
86 (5th Cir. 1996)(affirming district court’s order granting
summary judgment to employer and rejecting, inter alia, the
plaintiff’s contention that statistical evidence was probative of
pretext).
16
Id. at 1185.
13
presentations that do not include analyses of the facts surrounding
the circumstances of the individual employees at issue are
“impotent, without more, to rebut” an employer’s articulated,
nondiscriminatory reason for terminating an employee.17
Significantly, Baker concedes that nothing more than his subjective
belief that black employees were laid off in disproportionate
numbers supports his pattern-of-discrimination argument. Baker
admittedly offers no evidence or analysis apart from the bare
numbers to indicate that Randstad engaged in a pattern of
terminating black employees because of their race.18 Accordingly,
Baker’s pattern-of-discrimination argument fails. In this regard,
we note in passing that the undisputed evidence in the record
before us shows that Randstad had legitimate, nondiscriminatory
reasons for terminating the black BDMs in 2001. Specifically,
Randstad fired two black BDMs for violating company policy, laid
off one black BDM for poor performance, and the fourth black BDM
voluntarily resigned.
III. CONCLUSION
Baker fails to point to any summary judgment evidence
sufficient to create an issue of material fact whether Randstad’s
17
Id. at 1185.
18
In his deposition, counsel for Randstad asked Baker if
there is any “firm evidence, firm facts, or... information” that
Baker could point to in order to show that Randstad terminated
black employees because of their race. Baker admitted that the
only evidence he could point to was “the number of [black]
people” that Randstad terminated.
14
articulated reason for terminating him was a pretext for race
discrimination. Absent that, Randstad is entitled to summary
judgment as a matter of law. The district court’s grant of
Randstad’s motion for summary judgment is
AFFIRMED.
15
