Keelan v. Majesco Software, Inc.

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT April 12, 2005

Charles R. Fulbruge III

Clerk

No. 04-10317

IVOR KEELAN and DAVID SULLIVAN,

Plaintiffs-Appellants,

VERSUS

MAJESCO SOFTWARE, INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

Before REAVLEY, DeMOSS, and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiffs-Appellants Ivor Keelan (“Keelan”) and David

Sullivan (“Sullivan”) (together, “Appellants”) appeal from the

district court’s granting of summary judgment in favor of

Defendant-Appellee Majesco Software, Inc. (“Majesco” or the

“company”) in Appellants’ Title VII national origin employment

discrimination case. For the following reasons, we AFFIRM the

district court’s order.

BACKGROUND

Majesco is a U.S. wholly owned subsidiary of Mastek Ltd.

(“Mastek”). Majesco has an office in Irving, Texas. Mastek was

founded in 1982; is headquartered in Bombay, India; and is publicly

traded on the Bombay Stock Exchange. Mastek’s business is

outsourcing software/IT solutions and technicians for its business

customers. Majesco is one of several wholly owned international

subsidiaries of Mastek. Majesco sells Mastek’s IT products and

services to its customers based locally in the United States.

Keelan, a citizen of the United Kingdom, began working as a

regional sales director for Majesco on or about August 7, 2000, in

the Irving office. He was hired as an employee-at-will, with a

base salary of $110,000, plus a commission structure. He was

terminated in late November 2001 for nonproduction. A female

Canadian national was offered his position but did not accept it.

Sullivan, a U.S. citizen born in El Paso, applied to work at

Majesco in early 2001. Majesco president and Indian national Atul

Vohra (“Vohra”) (former marketing director for Mastek) was one of

Sullivan’s interviewers. Sullivan began working as a director of

alliances for Majesco, as an employee-at-will, on or about March 1,

2001, in the Irving office with a base salary of $120,000, plus a

commission structure. Sullivan signed an employee confidentiality

and inventions agreement and an IRS W-4 withholding certificate

with another software/IT company, AppWorx Corp. (“AppWorx”), on

June 20, 2001. Sullivan took an extended leave from Majesco the

first week of July 2001. He submitted his letter of resignation

dated July 26, 2001. Sullivan’s W-2s from 2001 indicate he earned

more at AppWorx in the five months he worked there than in the five

2

months he worked for Majesco.

During his first four months on the job, Keelan generated no

sales. His then-supervisor Gary Hart (“Hart”), a U.S. national,

counseled Keelan concerning his sales performance. Keelan made

three sales between February and April 2001. He made no sales

after that. Sullivan’s initial supervisor was also Hart. Sullivan

produced no sales while at Majesco. Both Keelan and Sullivan

allege that their sales performances were hindered and obstructed

at Majesco due to the fact they are non-Indian. Appellants also

contend Majesco’s inadequate marking materials and website hindered

their sales performance.

Keelan said he encountered staffing problems because when no

technician employed by Majesco was available for projects, Majesco

only brought in Mastek’s Indian technicians on work visas and would

not staff projects with local non-Indian hires. Keelan stated one

time he lost repeat business because the Indian workers’ visas

expired and they left in the middle of a project.

Sullivan said he encountered similar staffing problems.

Sullivan stated he was told that the company would not staff one of

his projects because it could not get the required people from

India. Sullivan stated a pattern developed where sales brought to

the table by non-Indians probably were not going to be successful.

Another non-Indian Majesco salesperson, Jennifer Walsh

(“Walsh”), based out of New Jersey, also testified to similar

staffing problems. When Walsh asked management why the company

3

would not use local people, she stated she was told that “Americans

need too much handholding.” Walsh was terminated in November 2001

for nonproduction.

Appellants provided other evidence alleging discrimination.

Keelan stated that Vohra (then marketing director for Mastek)

announced at a sales meeting held in India in November 2000 that he

could foresee a time when Mastek would be a totally Indian company.

On April 1, 2001, Vohra was appointed president of Majesco.

Shortly after Vohra became president, Hart resigned and was

replaced by Lokesh Bhagwat, an Indian. Keelan stated that in April

2001, immediately prior to Hart’s leaving, he asked Hart if the

company had a policy of forcing the Americans out and that Hart

replied, “Is there a document out there somewhere that states that,

no; is it practice, of course it is.” Appellants also complained

about their working environment, including the lack of windows, the

small size of their cubicles, and Majesco’s requirement that they

work from the office instead of home.

Yvette Winfrey (“Winfrey”), a non-Indian, was the assistant

human resources director for Majesco. Winfrey testified that both

Keelan and Sullivan complained to her about discrimination at

Majesco. Keelan said Winfrey directed him to the EEOC, but that he

had not yet gone to the EEOC at the time of his termination in

November 2001. Keelan and Sullivan also complained to P.N. Prasad

(“Prasad”), an Indian Majesco executive, about what they perceived

to be discrimination against non-Indians. Keelan said Prasad also

4

stated that “Americans have never worked out” at the company.

Sullivan spoke to Ketan Mehta (“Mehta”), Majesco’s CEO and an

Indian, about the apparent discrimination; Mehta’s response was, “I

can see how you would feel that way.”

Majesco alleges it fell upon hard financial times beginning in

fiscal year 2000. The loss of revenues in fiscal year 2001 was

almost $20 million, and the company suffered a net loss of over

$1.4 million. Because of this, on July 16, 2001, Majesco announced

a new pay plan. This plan consisted of an across-the-board pay

cut: all rank-and-file employees earning more than $60,000 per

year received a ten percent pay cut, with senior management

receiving an even larger decrease. The plan also modified the

commission structure across the board for salesmen. Salaries were

changed to require draws against commission. For example, if a

commission employee had a $75,000 salary and earned $100,000 in

commission, he would receive the difference of only $25,000 in

commission. The plan also specifically excluded commissions on

projects over $5 million. Appellants claim the plan gave Majesco

discretion to divide commissions among salesmen as management saw

fit and, in some instances, not even pay commissions, and thus

would be a vehicle for favoritism and discrimination.

Appellants filed charges of national origin discrimination

with the EEOC. They then filed this action against Majesco in

district court on August 6, 2002, alleging discrimination in the

terms and conditions of their employment and in Keelan’s

5

termination and Sullivan’s constructive discharge. The court

rejected Appellants’ urging that it analyze their case under the

mixed-motive theory. The court determined this was a pretext case

under McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973).1 With

regard to Appellants’ terms and conditions claims, the court found

that the evidence did not support a prima facie case; that is,

nothing showed Appellants were denied any compensation due them or

that Majesco treated similarly situated Indian employees better.

As to Keelan’s discharge claim, the court found he did not meet his

prima facie case because nothing showed that similarly situated

Indian salesmen were treated more favorably than he; that is, that

1

We agree that the McDonnell Douglas burden-shifting analysis

applies to Appellants’ employment discrimination claims:

As the Supreme Court reaffirmed in Reeves [v. Sanderson

Plumbing Products, Inc., 530 U.S. 133 (2000)], “McDonnell

Douglas and subsequent decisions have ‘established an

allocation of the burden of production and an order for

the presentation of proof,’” whereby a “plaintiff must

[first] establish a prima facie case of discrimination.

[After doing so,] [t]he burden [of production] shift[s]

to [the defendant] to ‘produce evidence that the

plaintiff was rejected ... for a legitimate,

nondiscriminatory reason.’” Id. at [142]. If the

defendant is able to produce a legitimate reason, then

the presumption of discrimination vanishes. However,

because the burden of persuasion “‘remains at all times

with the plaintiff,’” the plaintiff is “afforded the

opportunity [to demonstrate that an issue of material

fact exists and] that the legitimate reasons offered by

the defendant were not its true reasons, but were a

pretext for discrimination.” Id. [at 143.]

Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512

(5th Cir. 2001) (alterations in original, except in citations).

6

they were not also counseled and then terminated for poor sales

performance. The court stated that even if Keelan had met his

prima facie case, Majesco rebutted with a legitimate

nondiscriminatory reason for his termination, and “stray remark”

evidence did not raise an issue of pretext. As to Sullivan’s

constructive discharge claim, the court found he did not raise a

genuine issue of fact on constructive discharge because he was not

subjected to objectively intolerable working conditions and because

he left Majesco for what he perceived to be a better job. The

district court granted summary judgment to Majesco and dismissed

Appellants’ claims. Appellants timely appealed Keelan’s discharge

claim and Sullivan’s constructive discharge claim.

DISCUSSION

This Court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court. Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004). Under

Federal Rule of Civil Procedure 56(c), summary judgment is proper

when 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 judgment as a matter of law.” FED. R.

CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986). When making its determination, the court must draw all

7

justifiable inferences in favor of the nonmovant. Bodenheimer v.

PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).

I. Whether the district court erred by requiring that Appellants

provide evidence of similarly situated Indian employees

receiving preferential treatment to prove up their prima facie

case of discrimination.

On appeal, Appellants argue that the district court applied an

erroneous standard under McDonnell Douglas by deciding that only

one method of proof would allow them to meet the essential

discrimination element of their prima facie case – showing that

Majesco treated similarly situated Indians employees differently

than non-Indian employees. Appellants maintain the utilization of

this exclusive approach to prove a prima facie case is contrary to

Supreme Court and Fifth Circuit caselaw, which indicates there is

no single route required to establish a prima facie case. See,

e.g., McDonnell Douglas, 411 U.S. at 802 n.13; Thornbrough v.

Columbus & Greenville R.R. Co., 760 F.2d 633, 641 & n.10 (5th Cir.

1985), abrogated on other grounds, St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502 (1993).

Appellants agree that the similarly situated type of proof the

court required here can be helpful to prove up a prima facie case,

but only where the company involved has several similarly situated

employees. Appellants maintain that each of their jobs was unique:

Sullivan was the only director of alliances, and Keelan was the

only Majesco salesman in charge of the central U.S. region.

8

Appellants argue that because realistic comparisons cannot be made,

they instead relied on other evidence.

Majesco insists that Appellants did not properly challenge the

district court’s formulation of the McDonnell Douglas prima facie

case in the district court. Majesco argues its summary judgment

motion put Appellants on notice that Majesco was seeking summary

judgment because: (1) Appellants failed to establish that

similarly situated persons had been treated differently in their

terms and conditions of employment, (2) Keelan failed to identify

a similarly situated person treated differently as to his

discharge, and (3) Keelan failed to raise a genuine fact issue on

pretext as to his discharge. Majesco maintains even with two

opportunities (response to summary judgment and permissive sur-

reply brief), Appellants never took issue with Majesco’s statement

of the applicable elements of the McDonnell Douglas prima facie

case. Majesco insists Appellants said nothing about the lack of

similarly situated persons outside their class. Instead, Majesco

argues, Appellants only continued to argue that Desert Palace, Inc.

v. Costa, 539 U.S. 90 (2003), changed the landscape of Title VII

law by replacing McDonnell Douglas such that the granting of

summary judgment in Title VII cases would be severely limited.

However, Majesco contends this Court recently affirmed the

McDonnell Douglas formulation as to the fourth element of the prima

facie case. See Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360-

9

61 (5th Cir. 2004) (affirming summary judgment against black

plaintiff where record showed white associate principals also

terminated).

The district court used the following formulation of the

McDonnell Douglas prima facie case: plaintiffs must show (1) they

are members of a protected class; (2) they were qualified for their

positions; (3) they suffered an adverse employment action; and (4)

others outside the class who were similarly situated were treated

more favorably than they were treated. See Urbano v. Cont’l

Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).

It is well settled in this Circuit that the scope of appellate

review on a summary judgment order is limited to matters presented

to the district court. Keenan v. Tejeda, 290 F.3d 252, 262 (5th

Cir. 2002); Frank C. Bailey Enters., Inc. v. Cargill, Inc., 582

F.2d 333, 334 (5th Cir. 1978). “If a party fails to assert a legal

reason why summary judgment should not be granted, that ground is

waived and cannot be considered or raised on appeal.” Keenan, 290

F.3d at 262 (internal quotation marks and citation omitted). If a

party wishes to preserve an argument for appeal, the party “must

press and not merely intimate the argument during the proceedings

before the district court.” New York Life Ins. Co. v. Brown, 84

F.3d 137, 141 n.4 (5th Cir. 1996) (quoting FDIC v. Mijalis, 15 F.3d

1314, 1327 (5th Cir. 1994)). An argument must be raised “to such

a degree that the district court has an opportunity to rule on it.”

10

Id.

We note “[p]rior case law has not consistently applied Title

VII’s burden-shifting framework to the question of whether a

similarly-situated employee outside the plaintiff’s protected class

was treated more favorably.” Nieto v. L&H Packing Co., 108 F.3d

621, 623 n.5 (5th Cir. 1997). However, based upon our careful

review of the record, we agree with Majesco that Appellants did not

properly raise in the district court the argument that showing

similarly situated employees were more favorably treated to meet

the fourth element of McDonnell Douglas is not required to prove up

a prima facie case of discrimination. While Appellants objected

that their case should be treated under a mixed-motive theory per

Desert Palace, they did not object to the similarly situated

disparate treatment formulation of the fourth element of the prima

facie case. Because Appellants did not sufficiently object below,

the district court did not have any opportunity to rule on their

argument; Appellants’ legal argument on formulation is thus waived.

See Keenan, 290 F.3d at 262; Brown, 84 F.3d at 141 n.4. We cannot

address this point of error. Keenan, 290 F.3d at 262.

II. Whether the district court erred by not analyzing Appellants’

case under the mixed-motive theory.

Appellants do not extensively brief the argument that the

district court should have evaluated their evidence under Desert

Palace. Appellants merely insist that “the Supreme Court did not

11

say what impact Desert Palace would have on McDonnell Douglas

[because] the result is so obvious it is likely the Court felt no

need to explain” – that result being summary judgment is almost

never proper. Majesco responds that under any interpretation of

Desert Palace, Appellants still must demonstrate a prima facie case

of discrimination, see Rachid v. Jack In The Box, Inc., 376 F.3d

305, 312 (5th Cir. 2004), and they failed to do so here.

Under the mixed-motive paradigm, a plaintiff need only show

that the protected characteristic was a “motivating factor for any

employment practice, even though other factors also motivated the

practice.” 42 U.S.C. § 2000e-2(m). In Desert Palace, the Supreme

Court explained: “In order to obtain an instruction under § 2000e-

2(m), a plaintiff need only present sufficient evidence for a

reasonable jury to conclude, by a preponderance of the evidence,

that ‘race, color, religion, sex, or national origin was a

motivating factor for any employment practice.’” 539 U.S. at 101.

Desert Palace thus answered a disputed question from Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), clarifying that direct

evidence of the “motivating factor” is not needed to shift the

burden of proof to the employer to affirmatively show that it would

have treated the plaintiff the same in the absence of the unlawful

motivating factor; circumstantial evidence of the motivating factor

can be enough. 539 U.S. at 99-101. Desert Palace had no effect on

pretext cases under McDonnell Douglas. See, e.g., Raytheon Co. v.

12

Hernandez, 540 U.S. 44, 49 & n.3 (2003) (noting, in a case post-

Desert Palace, the consistent use of the “familiar” McDonnell

Douglas burden-shifting approach for disparate treatment cases).

This Circuit has adopted use of a “modified McDonnell Douglas

approach” in cases where the mixed-motive analysis may apply. See

Rachid, 376 F.3d at 312. After the plaintiff has met his four-

element prima facie case and the defendant has responded with a

legitimate nondiscriminatory reason for the adverse employment

action:

[T]he plaintiff must then offer sufficient evidence to

create a genuine issue of material fact either (1) that

the defendant’s reason is not true, but is instead a

pretext for discrimination (pretext alternative); or (2)

that the defendant’s reason, while true, is only one of

the reasons for its conduct, and another motivating

factor is the plaintiff’s protected characteristic.

(mixed-motive[s] alternative).

Id. (internal quotation marks and citations omitted). The question

of pretext versus mixed-motive treatment is only reached after a

plaintiff has met his prima facie showing under the modified

McDonnell Douglas standard and the defendant has responded with a

legitimate nondiscriminatory reason. Id. If the plaintiff

demonstrates the protected characteristic was a motivating factor

in the employment decision (meets the mixed-motive showing), which

pursuant to Desert Palace may be achieved through circumstantial

evidence, Rachid, 376 F.3d at 311-12, “it then falls to the

defendant to prove that the same adverse employment decision would

13

have been made regardless of discriminatory animus. If the

employer fails to carry this burden, plaintiff prevails.” Id. at

312 (internal quotation marks and citation omitted). In Rachid,

this Court determined that enough fact issues still remained at the

summary judgment stage, after plaintiff had met his prima facie

case and the employer had replied with a nondiscriminatory reason,

such that Rachid’s case could not be adequately determined to be

either pretext or mixed-motive. Id. at 316.

Appellants desire that their case be analyzed under Desert

Palace, which is a mixed-motive case, but they also erroneously

argue that Desert Palace changed McDonnell Douglas, which governs

disparate treatment cases premised on pretext. The district court

acknowledged Appellants’ request. However, the court denied such

mixed-motive treatment primarily because it found “no evidence that

Majesco had legitimate and illegitimate reasons for discharging

Keelan.”2

As discussed in sections III and IV below, both Keelan and

Sullivan failed to raise sufficient evidence to support their prima

facie cases of discrimination. Therefore, this case is

distinguishable from Rachid, see 376 F.3d at 316, because here the

2

The EEOC, as amicus, argues that regardless of whether Keelan

can show pretext, his evidence raises a fact question as to whether

his national origin was a motivating factor in his discharge.

However, for the same reasons as discussed in section IV, even if

Keelan could arguably meet his prima facie case, his evidence does

not raise that fact question.

14

district court did not need to reach the question of whether

Appellants created fact issues on either or both of pretext or

mixed-motive. We thus find no error.

III. Whether the district court erred by finding Sullivan had not

shown constructive discharge to meet the adverse employment

element of his prima facie case.

Sullivan argues the district court incorrectly determined that

he had not presented enough evidence to create a material fact

issue on constructive discharge, which was the adverse employment

action Sullivan alleged Majesco took against him. Sullivan

protests the court’s statement that he was not constructively

discharged because he had not received a “significant change in

benefits.” Sullivan contends the detrimental impact of the new

commission structure, coupled with Majesco’s environment in which

non-Indian-initiated sales were discouraged, indicated the kind of

intolerable working conditions that would force one to resign. In

addition, Sullivan argues the district court solely looked to the

fact that he retained his job title, which is not part of the

constructive discharge test, instead of considering how Sullivan

had less potential to earn commissions under Majesco’s new plan.

See Pegram v. Honeywell, Inc., 361 F.3d 272, 284 (5th Cir.

2004)(recognizing the disparity in a reassigned employee’s

potential incentive compensation as evidence of an adverse

employment action).

Majesco responds that Sullivan failed to present any evidence

15

of intolerable working conditions that compelled his resignation.

Majesco contends the evidence Sullivan did present – the new pay

and compensation plan, being required to work from the office and

from cubicles, inadequate marketing materials, and Majesco’s

business method of staffing projects with Mastek consultants – did

not show discrimination or hostility because these policies and

practices were neutrally applied.

This Court has explained:

The general rule is that if the employer deliberately

makes an employee’s working conditions so intolerable

that the employee is forced into an involuntary

resignation, then the employer has encompassed a

constructive discharge and is as liable for any illegal

conduct involved therein as if it had formally discharged

the aggrieved employee.

Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990) (citation

omitted). Whether an employee would feel forced to resign is case-

and fact-specific, but we consider the following factors relevant,

singly or in combination:

(1) [D]emotion; (2) reduction in salary; (3) reduction in

job responsibilities; (4) reassignment to menial or

degrading work; (5) reassignment to work under a younger

[or less experienced/qualified] supervisor; (6)

badgering, harassment, or humiliation by the employer

calculated to encourage the employee's resignation; or

(7) offers of early retirement [or continued employment

on terms less favorable than the employee’s former

status].

Haley v. Alliance Compressor LLC, 391 F.3d 644, 649-50 (5th Cir.

2004) (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th

Cir. 2001)) (alterations in original) (footnote omitted). The test

16

that Sullivan must meet is an objective, “reasonable employee”

test: whether a reasonable person in the plaintiff’s shoes would

have felt compelled to resign. Barrow v. New Orleans S.S. Ass’n,

10 F.3d 292, 297 n.19 (5th Cir. 1994). “Constructive discharge

requires a greater degree of harassment than that required by a

hostile environment claim.” Brown, 237 F.3d at 566. Aggravating

factors used to support constructive discharge include hostile

working conditions or the employer’s invidious intent to create or

perpetuate the intolerable conditions compelling the resignation.

Jurgens, 903 F.3d at 393 n.10. “The resigning employee bears the

burden to prove constructive discharge.” Haley, 391 F.3d at 650.

We agree with the district court that Sullivan did not meet

his burden of showing constructive discharge. To begin, we do not

accept that the requirement to work from the office, a policy

Majesco applied across the board, constitutes hostility or

harassment. Neither does having to work from a cubicle-type office

space; all the nonsupervisor Majesco salespersons worked from the

“Bullpen.” The testimony in the record also reflects that all

Majesco salespersons – Indian and non-Indian – utilized the same

marketing materials and website. While Appellants speculate that

the pay cut and change in commission structure would not be

neutrally applied, nothing supports that this practice ever took

place. The evidence instead shows the blanket, neutral nature of

the business decision made in light of Majesco’s revenue decrease.

17

See Jurgens, 903 F.2d at 392-93 (affirming summary judgment for

employer where white plaintiffs were demoted as part of a blanket,

racially neutral reorganization). Unlike the plaintiff in Pegram,

who individually suffered a job transfer where less commission was

possible, 361 F.3d at 283-84, the Majesco salespersons altogether

faced the same potential commission loss under the new plan. We

find none of these working conditions objectively constitutes a

“greater degree of harassment than that required by a hostile

environment claim.” Brown, 237 F.3d at 566.

Sullivan also presents no, much less compelling, evidence that

his job responsibilities were reduced or that he was assigned to

menial work in spite of his job title remaining the same. See

Brown v. Bunge Corp., 207 F.3d 776, 782-83 (5th Cir. 2000)

(affirming summary judgment for employer where ADEA plaintiff

suffered a demotion and fewer job responsibilities). There is also

no evidence that anyone at Majesco ever badgered Sullivan by asking

him when he was going to quit. See Stephens v. C.I.T. Group/Equip.

Fin., Inc., 955 F.2d 1023, 1027-28 (5th Cir. 1992) (affirming a

jury verdict on constructive discharge, where ADEA plaintiff had

not only been demoted, but also faced significant reductions in

salary and responsibilities, and was repeatedly questioned by his

younger supervisor as to when he was going to quit).

Moreover, Sullivan accepted a higher-paying job with another

software company prior to the implementation of the new

18

compensation and commission plan. If Sullivan had, or perceived he

would have, a grievance with the new compensation and commission

plan, a reasonable employee would have waited to see just how his

paycheck was practically affected before seeking out a potentially

higher paying job and resigning. See Haley, 391 F.3d at 652

(noting reasonable employee attempts resolution of employment

concerns before quitting); McKethan v. Texas Farm Bureau, 996 F.2d

734, 741 (5th Cir. 1993) (same); Bozé v. Branstetter, 912 F.2d 801,

805 (5th Cir. 1990) (same). The district court decided this issue

correctly; Sullivan does not meet the adverse employment action

prong of his prima facie case.

IV. Whether the district court erred in finding that Keelan had

not met the discrimination element of his prima facie case

under McDonnell Douglas.

We now address whether Keelan has presented sufficient

evidence to meet his prima facie case and show pretext as to his

discharge. The parties here only dispute the discrimination

element of McDonnell Douglas – whether Keelan produced sufficient

summary judgment evidence to raise a genuine issue of fact that

similarly situated Indian salespersons were treated more favorably

than he – and pretext.3 Keelan attempts to meet this prima facie

element with various evidence. Keelan first argues that Supreme

3

This Court uses the same McDonnell Douglas standard employed

by the district court. See Patrick v. Ridge, 394 F.3d 311, 315

(5th Cir. 2004).

19

Court and this Court’s caselaw indicate the importance of workforce

statistical evidence in proving discrimination, which he contends

the district court did not give proper weight to here.4 See Int’l

Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977);

Parson v. Kaiser Aluminum & Chem. Corp., 575 F.2d 1374, 1379-80

(5th Cir. 1978). Moreover, Keelan argues his and Sullivan’s

testimony as well as that of Walsh brought the “cold numbers” of

the pro-Indian Majesco statistics to life. See Teamsters, 431 U.S.

at 339. Keelan insists that Majesco’s plan to have an all-Indian

workforce had an adverse impact on his ability to sell; and the

court should not have made the finding that Keelan, and not

Majesco, was the reason Keelan did not meet his sales goals.

Keelan contends making this inference is not proper on summary

judgment. See United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

Keelan also argues that the district court improperly

disregarded all of Appellants’ evidence related to Majesco’s

executives’ prejudicial mindset which favored Indians and

disfavored non-Indians as “stray remarks.” Keelan argues this

probative evidence indicated Majesco’s intent to take the necessary

steps to achieve an all-Indian workforce. Keelan points not only

to his removal from Majesco, but also to Sullivan’s forced

4

As part of their summary judgment evidence, Appellants

submitted a list of Majesco employees as of August 2003, which

indicated that 8 of 137 employees were non-Indian.

20

resignation and the termination of Walsh, as corroborating the

plan. Keelan contends the various prejudicial statements by

Majesco executives cannot be disregarded as stray remarks because

they were outright admissions by persons controlling company

decisions. See Palasota v. Haggar Clothing Co., 342 F.3d 569, 578

(5th Cir. 2003).5

Majesco argues Appellants have waived any error in the

district court’s evidentiary determinations by not raising such

objections in their opening brief. Majesco contends the court

properly disregarded Appellants’ evidence that was either hearsay,

irrelevant, or unauthenticated. Majesco also informs this Court as

to Appellants’ improper briefing; that is, Appellants failed to

cite to the record for many of their assertions. Majesco asserts

5

We note Palasota is distinguishable. There, the jury found

for the plaintiff on his ADEA claim, and the court then ruled for

judgment as a matter of law for the employer. 342 F.3d 569, 573-74

(5th Cir. 2003). In that posture, “it is unnecessary to ‘parse the

evidence into discrete segments corresponding to the different

stages’ of the McDonnell Douglas framework.” Id. at 574 (quoting

Scott v. Univ. of Miss., 148 F.3d 493, 504 (5th Cir. 1998)). Our

review instead is for whether the plaintiff met his ultimate burden

of proving that the employer terminated him because of age. Id.

Thus, this Court in Palasota considered the anti-age remarks made,

in combination with the establishment of a prima facie case and a

fact issue as to the veracity of the employer’s stated grounds for

termination, as probative of discriminatory intent. Id. at 578.

Moreover, there the jury had ruled for Palasota based on his theory

of the case – “that Haggar sought to replace its largely older,

male sales force with a younger female sales force.” Id. at 575.

Here, as explained in section I, Appellants waived objection to the

similarly situated theory of the case advanced by Majesco and

accepted by the district court. Appellants thus failed to properly

advance any theory of the case based on Majesco’s alleged plan to

have an all-Indian workforce.

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that as a matter of law, the district court was correct to grant

summary judgment in this case because nothing supported the

allegation that Indian employees were treated more favorably than

Keelan and because in essence Keelan’s argument is a challenge to

Majesco’s business model, not to any discriminatory treatment.

Based on our review of the summary judgment evidence, and

keeping in mind that Keelan was constrained to produce evidence

sufficient to raise a genuine fact dispute that similarly situated

Indian salespersons were treated more favorably than he because

Appellants did not properly object to this formulation below, we

find that Keelan has failed to meet the discrimination prong of his

prima facie case under the particular disparate treatment

formulation of the fourth element of McDonnell Douglas employed by

the district court. Considering the evidence in the light most

favorable to Keelan, we do not find that Keelan presented any

summary judgment evidence tending to show, or from which it can be

inferred, that similarly situated Indian salespersons were treated

more favorably.

“To establish a prima facie case in this manner, [Keelan] must

show that [Indian] employees were treated differently under

circumstances ‘nearly identical’ to his.” Mayberry v. Vought

Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (citations

omitted). First of all, nowhere in the record does Keelan identify

by name any Indian salesperson in “nearly identical” circumstances

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who received better treatment than he. Keelan instead insists

there were no Majesco Indian employees similarly situated to him.

However, the record reflects that both Indian and non-Indian

salespersons were affected by the blanket pay and commission cuts.

The record also specifically identifies two Indian salespersons who

were discharged in January 2002 for the identical reason Majesco

gave for Keelan’s termination – nonproduction in sales. See id.

(affirming summary judgment for employer where black plaintiff did

not meet prima facie case on discrimination prong, noting that

white employees had also been similarly disciplined for “scrapping

parts”). Also, nothing in the record indicates that Indian

salespersons, as opposed to non-Indian salespersons, did not

encounter the same types of staffing and marketing issues

complained of by Appellants.

Moreover, Appellants’ statistical evidence indicating the

majority Indian workforce at Majesco and the remarks pertaining to

pro-Indian sentiment neither show nor can be reasonably inferred to

show better actual treatment of Majesco’s Indian salespersons in

circumstances “nearly identical” to Keelan’s. See id. Thus, the

district court correctly found that Keelan had not met the

discrimination element of the prima facie showing under McDonnell

Douglas.

And even if this evidence could arguably be considered enough

to support a prima facie case, “if the defendant has offered a

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legitimate nondiscriminatory reason for its action, the presumption

of discrimination derived from the plaintiff's prima facie case

simply drops out of the picture and the ultimate question [is]

discrimination vel non.” Mayberry v. Vought Aircraft Co., 55 F.3d

1086, 1090 (5th Cir. 1995) (alteration in original) (internal

quotation marks and citations omitted). Here, Majesco met its

burden of production by citing Keelan’s poor sales performance; any

presumption of discrimination vanishes. The record reflects that

Keelan indeed made few sales; Keelan created no fact issue that

Majesco’s stated grounds for his termination were “unworthy of

credence.” See Reeves, 530 U.S. at 143; Palasota, 342 F.3d at

578.

Keelan’s statistical evidence and pro-Indian remarks do not

create a fact issue on pretext. Being a majority Indian company

did not prevent Majesco from also firing Indians for nonperformance

in sales. See Nieto v. L&H Packing Co., 108 F.3d 621, 623 n.5 (5th

Cir. 1997) (noting how evidence of more favorable treatment of

similarly situated employees outside the class can be “especially

relevant” to a showing of pretext). Also, Keelan does not allege

and presents no evidence here that the Majesco personnel who made

the remarks were involved in or influenced the decision to fire him

or that those remarks were made in connection with his discharge.

See Rachid v. Jack In The Box, 376 F.3d 305, 315-16 (5th Cir. 2004)

(noting ageist comments continually made by person who decided to

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fire plaintiff); Scales v. Slater, 181 F.3d 703, 712 (5th Cir.

1999) (discounting stray remarks not connected to an employment

decision).

CONCLUSION

Having carefully reviewed the record and the parties’

respective briefing and arguments, and for the reasons set forth

above, we conclude the district court was correct to grant

Majesco’s motion for summary judgment and dismiss Appellants’

claims. Therefore, we AFFIRM.

AFFIRMED.

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