Filed: Mar. 17, 2006
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 March 17, 2006 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 05-10961 Summary Calendar _ MARY BELL, Plaintiff - Appellant, versus BANK OF AMERICA, Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Texas, Dallas USDC No. 3:03-CV-2650 _ Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM:1 Appellant Mary Bell challenges the district court’s
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 17, 2006 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 05-10961 Summary Calendar _ MARY BELL, Plaintiff - Appellant, versus BANK OF AMERICA, Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Texas, Dallas USDC No. 3:03-CV-2650 _ Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM:1 Appellant Mary Bell challenges the district court’s g..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 17, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-10961
Summary Calendar
_____________________
MARY BELL,
Plaintiff - Appellant,
versus
BANK OF AMERICA,
Defendant - Appellee.
________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:03-CV-2650
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:1
Appellant Mary Bell challenges the district court’s grant of
summary judgment in favor of Bell’s former employer, Bank of
America. Bell, an African American, brought suit claiming that
Bank of America violated Title VII by discriminating against her
because of her race and for retaliating against her for engaging in
protected activity. Bell alleges that the district court erred in
finding no genuine issue of material fact. Reviewing this summary
judgment de novo, respecting the same legal standards that the
district court applied, see Lamar Adver. Co. v. Cont’l Cas. Co.,
1
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this opinion should not be published and is not precedent except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.
396 F.3d 654, 659 (5th Cir. 2005) (citations omitted),2 we affirm
for the reasons stated below.
I
Bell was employed by Bank of America in the Community
Development Financial Institution Department (CDFI) as an
investment administrator. Bank of America employed two investment
administrators -- Bell, and Janice Barnhart, a Caucasian, both in
the Dallas office. Both Bell and Barnhart reported to Larry West,
who then reported to Mary Schultz.
In 2003 Bank of America went through a restructuring, part of
which involved moving the CDFI into a different department of the
Bank. As a part of this restructuring Bell and Barnhart both
received notice from the Bank on October 2, 2003 that the position
of investment administrator in Dallas was being eliminated and that
their employment would be terminated.3
II
Bell raises a claim of discrimination based on several
incidents she alleges were racially motivated.4 For the following
2
Bell incorrectly asserts that this court should review the
district court’s summary judgment for an abuse of discretion.
3
The Bank now has two senior investment administrator
positions. Those positions are located in Sarasota, Florida with
West and Schultz.
4
Although these incidents are difficult to decipher from
Bell’s appellate brief, it appears that Bell is raising the same
incidents she relied on below, specifically that the Bank: 1)
denied her a merit pay increase for 2002; 2) provided Barnhart
assistance with data input two weeks before providing it to Bell;
2
reasons the district court correctly found that the plaintiff has
failed to present the required evidence to survive a summary
judgment on her claim of discrimination:
A
With the exception of the failure to give a merit pay increase
in 2002, Bell’s alleged incidents of discrimination do not relate
to “ultimate employment decisions” such as hiring, granting leave,
discharging, promoting, and compensating her. Consequently,
because Title VII requires the racial discrimination to result in
an “ultimate employment decision,” Bell’s discrimination claim
fails as to these incidents. Dollis v. Rubin, 77 F.3d 777, 781-82
(5th Cir. 1995).
3) gave Bell unreasonable deadlines, specifically by asking her to
get a cashier’s check by February 5, 2003, and giving her short
notice of a closing; 4) failed to give necessary information to
Bell directly, but rather required her to get it from Barnhart; 5)
placed a written warning in her personnel file on March 7, 2003; 6)
failed to give her necessary internet passwords around March 31,
2003; 7) placed a customer complaint in her personnel file; 8)
failed to inform her about updates in the Bank’s computer system;
and 9) failed to give her as many “reward points” as she deserved,
while giving Barnhart more reward points than Bell thought Barnhart
deserved.
To the extent Bell relies on any additional evidence not
presented below, we are barred from considering it as it was not
before the district court. DeBardelenben v. Cummings, 453 F.2d
320, 325 (5th Cir. 1972) (“Where the moving papers do not reveal
the presence of a factual controversy on a material issue, the
adversary cannot . . . assert . . . on appeal as grounds for
reversal a purported factual disagreement never before revealed.”).
3
B
As to the merit pay increase in 2002, Bell failed to produce
credible evidence demonstrating that she was qualified for the
merit pay increase. Although Bell put forth evidence attempting to
show that West favored Barnhart over Bell, there was no evidence to
connect these alleged actions to the Bank’s decision denying Bell
the 2002 merit pay increase.5 Consequently, Bell’s claim that she
1) was a member of the protected class, 2) sought the pay increase,
and 3) she did not receive the requested pay increase fails to
create a prima facie case of discrimination as she has failed to
demonstrate that she was qualified to receive the pay increase.6
III
In addition to discrimination, Bell asserts a claim of
retaliation alleging that she was terminated in November 2003 as a
result of a claim she filed with the EEOC in March 2003. The
district court did not err in granting summary judgment for the
Bank as to the retaliation claim as Bell has neither demonstrated
5
Further, there is no evidence that even assuming West
treated Barnhart preferentially that he did so based on Bell’s
race. In fact Bell herself argues that the driving force for this
alleged disparity in treatment was West’s jealousy of Bell -- not
racial animus.
6
The record indicates that the merit pay was denied due to
Bell’s poor performance. Thus, Bank of America has a legitimate
non-discriminatory reason for denying the pay. Bell’s attempt to
create a fact issue as to the Bank’s non-discriminatory reason by
arguing that West, her supervisor, was jealous of Bell and thus
essentially sabotaged her performance reviews, does not create a
fact question that would survive summary judgment.
4
a prima facie case, nor a fact issue as to the Bank’s legitimate
non-discriminatory reason.
A
To succeed on her claim of retaliation Bell must first present
evidence establishing a prima facie case -- she has failed to do
so. Specifically, Bell has not, and cannot demonstrate that she
was terminated because of the EEOC claim she filed. Bell contends
that the fact that her termination came seven months after her EEOC
claim provides evidence of the causal connection. Mere timing
alone is insufficient in this instance to satisfy the causation
element of the prima facie case.
B
Even were a prima facie case established, Bell has failed to
adequately refute the Bank’s legitimate non-discriminatory reason
for its actions. Bank of America contends that it eliminated Bell
and Barnhart’s positions due to restructuring in the corporation.
See E.E.O.C. v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th
Cir. 1996) (recognizing that an employer’s decision to eliminate a
position is a legitimate non-discriminatory reason for terminating
a position or employee). Thus it falls to Bell to demonstrate that
this reason is either 1) false, or 2) that the Bank was motivated
by retaliation in addition to restructuring. As demonstrated by
the following, Bell has done neither:
1. Bell’s argument relating to her failure to be terminated
for perceived poor performance, although not totally understood, is
5
insufficient to create a fact issue surviving summary judgment as
performance, whether good or bad, does not demonstrate that the
Bank’s articulated reason (restructuring) was false.7
2. Bell contends that the newly created positions in Florida
are not, as the Bank argues, at a “higher level” than the position
she held in Dallas. Yet, by Bell’s own admission the Bank
eliminated all of the investment administrator positions in Dallas.
The new positions, at whatever level, exist in the location of
Bell’s former supervisors West and Schultz. The fact that the
position was totally eliminated in one location and moved to
another supports the Bank’s articulated reason for Bell’s
termination.
3. Bell argues that the 30-day delay between the actual date
the CDFI was moved to the new department and the date of her
termination indicates that she was terminated for reasons other
than the restructuring. We are not persuaded by this argument.
Corporate restructuring can be complicated and stretch out over
long periods of time. A thirty-day period is certainly not a delay
that would arouse suspicion of the Bank’s purpose in terminating
Bell.
7
From our reading it appears that Bell is contending that
Bank of America falsely labeled her as an under- or poor performer.
Bell seems to be arguing that if the Bank truly believed this
rating it would have, under its policy, terminated her employment
on the grounds of performance.
6
4. Finally, Bell questions the appropriateness of the Bank’s
business reasons for restructuring. However, the law is clear that
“discrimination laws [are not] vehicles for judicial second-
guessing of business decisions.” Walton v. Bisco Indus., Inc., 119
F.3d 368, 372 (5th Cir. 1997). Further, Bell has presented no
evidence that the restructuring was in fact motivated by racial
discrimination. See Armendariz v. Pinkerton Tobacco Co.,
58 F.3d
144, 151 n.7 (5th Cir. 1995) (holding that establishing the
employer’s reason as misguided is insufficient; rather “the
employee at all times has the burden of proving . . . that those
reasons were a pretext for unlawful discrimination”); see also
Deines v. Tex. Dept. of Protective and Regulatory Servs.,
164 F.3d
277, 278 (5th Cir. 1999) (“Whether an employer’s decision was the
correct one, or the fair one, or the best one is not a question
within the jury’s province to decide. The single issue for the
trier of fact is whether the employer’s [action] was motivated by
discrimination.”). Consequently, without evidence of
discrimination, we decline to probe the business judgment of the
Bank.
IV
For these reasons we find that there is an absence of any
genuine issue of material fact. Thus, the judgment of the district
court is
AFFIRMED.
7
