Filed: Sep. 11, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 95-10359 Summary Calendar MARJORIE A. ZIELKE, Plaintiff-Appellant, VERSUS GTE DIRECTORIES CORP., ET AL., Defendants, GTE DIRECTORIES CORP., and GTC DIRECTORIES SERVICE CORP., Defendants-Appellees. Appeal from the United States District Court For the Northern District of Texas (4:94 CV 206 A) (August 31, 1995) Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges. PER CURIAM:1 1 Local Rule 47.5 provides: "The publication of opinions that have
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 95-10359 Summary Calendar MARJORIE A. ZIELKE, Plaintiff-Appellant, VERSUS GTE DIRECTORIES CORP., ET AL., Defendants, GTE DIRECTORIES CORP., and GTC DIRECTORIES SERVICE CORP., Defendants-Appellees. Appeal from the United States District Court For the Northern District of Texas (4:94 CV 206 A) (August 31, 1995) Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges. PER CURIAM:1 1 Local Rule 47.5 provides: "The publication of opinions that have ..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10359
Summary Calendar
MARJORIE A. ZIELKE,
Plaintiff-Appellant,
VERSUS
GTE DIRECTORIES CORP., ET AL.,
Defendants,
GTE DIRECTORIES CORP., and
GTC DIRECTORIES SERVICE CORP.,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(4:94 CV 206 A)
(August 31, 1995)
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Marjorie Zielke appeals from summary judgment entered in favor
of her former employer, GTE Directories Corporation, in this sex
discrimination suit. Zielke's original complaint alleged that
disparate treatment on the basis of sex occurred after she was
transferred to GTE's marketing department in 1991 and continued
until she was discharged from GTE in 1993, all in violation of 42
U.S.C. § 2000e, et seq. (1994). The district court granted summary
judgment in favor of GTE. We affirm.
Zielke's Transfer and the Reorganization
From 1986 until 1991 Majorie Zielke was employed in GTE's
corporate development and strategic planning department. In 1991,
GTE's president recruited Zielke to transfer from the corporate
development and strategic planning department, where she held the
position of director, to GTE's marketing department. Zielke
alleges that she was promised several inducements that were
material to her decision to accept the transfer including, inter
alia: (1) retention of her present rank, compensation and benefit
package; (2) a four-member staff; and (3) responsibility for
certain key areas of product development. Zielke was also promised
that she would not be supervised by Phillip Abdelnor, then a
manager in GTE's marketing department.
Zielke's transfer did not go as she anticipated. Initially,
she received fewer staff members than she was promised. Several
months later, marketing vice-president Clint Pollard decided to
reorganize the department to eliminate inefficiency and reduce the
number of people reporting directly to him. Forty-two employees,
2
both male and female, were laid off. Many other employees received
different titles and were subject to a new reporting structure.
Zielke's position was reclassified as that of "manager," rather
than the more prestigious "director." She also lost her parking
space and was required to share a secretary with another employee.
Zielke did not, however, suffer any decrease in salary or other
employee benefits.
Zielke was also placed under the supervision of marketing
director Phillip Abdelnor. Zielke claims that Abdelnor was
difficult to work with, that he often changed her job objectives
and then held her responsible for the original objectives, that he
told her male subordinates that they did not have to work for her,
and that he gave her false and malicious job performance reviews.
It is undisputed that Abdelnor and Zielke quarreled about her
performance both publicly and privately on more than one occasion
in late 1992 and early 1993 and that Abdelnor cautioned Zielke that
he considered her attitude to be insubordinate.
Zielke's Discharge
In January 1993, Zielke was terminated from her position with
GTE. According to GTE, Zielke was discharged because she (1)
altered a purchase requisition form to authorize an expenditure
beyond her authority after her supervisor had expressly rejected
the requested amount; (2) failed to provide reports and plans
requested by her supervisor; (3) failed to eliminate language from
promotional literature that promised GTE would provide tracking
services, after it became apparent that such service was not
3
feasible; (4) authorized two expenditures far in excess of her
signing authority; and (5) was insubordinate in these and other
acts.
(1) Alteration of the Purchase Requisition
In November 1992, Zielke asked Abdelnor to sign an "open"
purchase requisition for $20,000. Because that procedure varied
from that usually employed by GTE, and because he could not
ascertain what goods and services were being procured with the
requisition, Abdelnor requested further information from Zielke.
In mid-December, Abdelnor received a message that the requisition
had to be signed immediately. Because he still had not received
the requested information from Zielke, Abdelnor reduced the
purchase requisition amount from $20,000 to $10,000, which was the
upper limit of Zielke's signing authority. Zielke subsequently
obtained the form, altered the $10,000 figure back to $20,000 and
submitted the form to purchasing, without Abdelnor's approval.
Zielke does not deny that she changed the form without
contacting Abdelnor first, but claims that she noted on the bottom
of the form that the change was necessary and sent a copy to
Abdelnor. GTE claims that Abdelnor did not receive the notated
form until much later. GTE further responds that Zielke's note
served to clarify only the propriety of the amount requested, and
not the insubordination inherent in taking that course of action.
Upon learning that Zielke had changed the form, Abdelnor contacted
GTE's human resources department about the matter.
(2) Failure to Complete Job Objectives and Insubordination
4
Zielke's priority project in the marketing department was a
new couponing project called "special editions." As originally
contemplated, GTE would "track," or gather discrete information
about, persons redeeming coupons issued by GTE for their customers.
Tracking is intended to aid advertisers' efforts to identify and
target a particular market. In October 1992, GTE approved a
"special editions" business plan proposed by Zielke. That plan
included a tracking feature. By early 1993, however, Zielke had
proposed no concrete method for achieving the tracking feature and
GTE management, particularly Abdelnor, was concerned about whether
tracking was a viable feature of the program. On January 6, 1993,
Zielke and Abdelnor met and Abdelnor requested a written plan for
the tracking feature. When that plan was not received, Abdelnor
instructed that tracking be removed from the "special editions"
plan. In the January 6 meeting, Abdelnor also expressed concern
over Zielke's failure to submit a complete sales plan for the new
product and assigned a January 8 deadline for that plan. The next
day, Abdelnor discovered that Zielke had approved two "special
editions" expenditures, which totaled $80,850, without his prior
authorization. At that time, it is undisputed that Zielke's
signing authority was limited to $10,000.
On January 8, Abdelnor sent Zielke a memo detailing several
deficiencies in Zielke's performance that had been discussed at the
January 6 meeting. In addition to the matters discussed above, the
memo stressed Zielke's response to Abdelnor as a supervisor and her
open "defiance" of his authority in private meetings and in front
5
of other employees. Subsequently, Abdelnor discovered that Zielke
had not removed the promise of tracking from final versions of the
promotional literature for the "special editions" product.
Abdelnor further claims that he never received the requested sales
plan. Zielke claims that the sales plan was sent facsimile on the
date it was due and that she made handwritten changes to the
advertising copy, which deleted the promise of tracking. Zielke
does not dispute, however, that she altered the purchase
requisition form or that she approved expenditures in excess of her
authority, which GTE claims, in addition to subordination, would
have justified her termination. On January 14, Zielke was given an
opportunity to explain her position in a meeting with Abdelnor and
a representative of GTE's human resources department. On January
15, 1993, Zielke was discharged.
APPLICABLE LAW
We review summary judgment de novo, applying the same standard
as did the district court. Garcia v. Elf Atochem N. Am., 28 F.3d
446, 449 (5th Cir. 1994). The facts are reviewed in a light most
favorable to Zielke, the non-movant.
Id. Summary judgment is
appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(C). Such a finding may be supported by the absence of
evidence to establish an essential element of the non-movant's
case. Hibernia Nat'l Bank v. Carner,
997 F.2d 94, 98 (5th Cir.
1993).
6
Zielke offers no direct evidence of sex discrimination. Thus,
her claim is controlled by McDonnell Douglas' burden-shifting
framework. To establish a prima facie case of sex discrimination,
Zielke must show that GTE either (1) filled her position with a
male employee or (2) retained similarly situated male employees,
while discharging Zielke.2 There is no dispute that Zielke was
replaced by a female. Zielke maintains, however, that two male
employees who engaged in similar or more egregious misconduct were
retained, while she was discharged.
GTE claims to have terminated Zielke, in part, because she
changed a purchase requisition form to reflect a $20,000 purchase,
after her supervisor had expressly rejected the request for
$20,000, authorizing only $10,000 instead. Zielke alleges that a
male employee, Rudluff, altered a similar company document, after
it had been signed by his supervisor on at least two occasions and
that Rudluff was not terminated.
Rudluff was not an employee in a similar situation as Zielke
and his actions were not analogous to those taken by Zielke.
Rudluff's position as a "systems administrator" in the marketing
department required that he requisition suitable computer equipment
for in-house use by GTE employees. Requests for computer
2
Prima facie proof of disparate treatment discharge requires
that plaintiff demonstrate that she: (1) is a member of the
protected class; (2) was qualified for the job held; (3) was
discharged; and (4) was either replaced by a person outside the
protected class or that the employer retained similarly situated
employees outside the protected class. See Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995); Wilson v. Belmont
Homes,
970 F.2d 53, 57 (5th Cir. 1992); Smith v. Wal-Mart Stores,
891 F.2d 1177, 1180 (5th Cir. 1990).
7
equipment, which were made on "PC and Intelligent Workstation
Services Request" forms, were often completed in pencil so that
Rudluff could change the form if required. Rudluff's amendment of
PC Services forms was a pre-authorized practice that was
contemplated as part of his job by relevant management personnel.
Unlike purchase requisition forms, PC Services forms do not require
that dollar amounts be entered. Indeed, the structure of the form
indicates that its primary purpose is to record computer needs
(which may then be filled from existing equipment or ordered), not
to authorize expenditure for those needs.
In contrast, Zielke increased the amount authorized on a
purchase requisition form, with knowledge that her supervisor had
already reduced the amount she requested, and without contacting
him prior to taking that action. Further, Zielke does not dispute
that she also authorized other expenditures in excess of her
signing authority. That fact alone is sufficient to distinguish
Rudluff's pre-authorized alteration of company forms on matters
falling within his assigned authority from Zielke's actions.
Zielke also claims that Crandall, a marketing department
director, was a similarly situated male for purposes of her prima
facie case. Crandall was apparently involved in an ongoing sexual
relationship with one of his subordinates, which was discovered by
Pollard, GTE's marketing vice-president. Instead of being
terminated, Crandall was allowed to move to a lower position with
a cut in pay. Crandall's behavior, Zielke argues, is at least as
bad, if not worse, than her own insubordination, poor performance
8
and alteration of company documents. Crandall's off-duty, off-
premises indiscretions do not place him in a similar position as
Zielke, and the relationship between the two incidents is too
remote to be credible evidence that GTE terminated Zielke because
of her sex.
Zielke failed to establish a prima facie case of
discrimination. Nor is there any other evidence that GTE's
asserted reasons for Zielke's discharge were a mere pretext for
discrimination. Zielke does not deny that she changed the purchase
requisition form or that she authorized expenditure in excess of
her signing authority. She does not deny that she and Abdelnor
argued frequently about the scope of her responsibilities and her
responsiveness to his assignments. See Mayberry v. Vought Aircraft
Co., 55 F.3d 1086, 1091 (5th Cir. 1995); Little v. Republic
Refining Co.,
924 F.2d 93, 97 (5th Cir. 1991) (even an employer's
incorrect belief that an employee's performance is inadequate
constitutes a legitimate nondiscriminatory reason for termination).
Zielke thus retained both the burden of production and the
burden of persuasion on the ultimate issue of whether GTE
intentionally discriminated against her on the basis of sex.
Zielke offers scant evidence that GTE's actions were motivated by
her sex.3 Zielke claims that she and one other female were demoted
3
Zielke initially claimed that GTE engaged in a continuing
pattern of discrimination against her that began with her transfer
to GTE's marketing department and continued until her discharge.
On appeal, Zielke argues only her discriminatory discharge claim.
Therefore, it is unnecessary to consider GTE's argument that
Zielke's disparate treatment claims related to GTE's reorganization
are time-barred because they were based on conduct occurring more
9
from director to manager as part of GTE's reorganization. Zielke
does not compare that figure to the number of men demoted. What is
clear from the record, however, is that the reorganization affected
in excess of 42 employees and that, as reconstituted, the marketing
department had an equal number of male and female directors.
Zielke's remaining evidence of discriminatory discharge, that
neither Rudluff nor Crandall were fired, is equally unavailing.
There is no evidence to suggest that Rudluff's activities, like
Zielke's, were in direct contravention of her supervisors expressed
wishes. Crandall's alleged indiscretions did not pose a similar
threat to GTE's business operations as did Zielke's defiant breach
of rank. While the record might raise a fact issue as to whether
Zielke received the benefit of her bargain when she transferred to
marketing or whether management treated her harshly or unfairly, it
does not raise a genuine issue of material fact on the issue of
whether GTE intentionally discriminated against Zielke on the basis
of her sex.
The district court is AFFIRMED.
than 300 days before she filed an administrative charge with the
EEOC. See 42 U.S.C. § 2000e-5(e)(1). GTE also argues that §
2000e-5(e)(2) precludes not only claims based on conduct occurring
outside the filing period but also any evidence of conduct
occurring outside the filing period. That issue is also
unnecessary. Assuming arguendo the evidence offered by Zielke of
disparate treatment in the reorganization was admissible, it simply
is not sufficiently probative to create a fact issue as to
discriminatory intent on her discharge claim.
opin\95-10359.opn
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