Opposition Brief — Pardasani v. Siemens Energy & Automation, Inc.

Supreme Court, U.S,

a FILED

aes | _ DEC 27 i993

No. 91-924

DRRIGE—OF HE CLERK

In The

Supreme Court of the United States

October Term, 1991

SJ

DAYAL PARDASANI,

Petitioner,

vs.

SIEMENS ENERGY AND AUTOMATION, INC.,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

@

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

¢

ARMIN J. MOELLER, JR.

(Counsel of Record)

Davip M. Tuomas, II

PHELPS DUNBAR

Suite 1400 - Mirror Lake Plaza

2829 Lakeland Drive

Post Office Box 55507

Jackson, MS 39296-5507

(601) 939-3895

Attorneys for Siemens Energy

and Automation, Inc. Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF

THE QUESTION PRESENTED

Should the United States Supreme Court re-evaluate

factual disputes which have been resolved by the United

States District Court for the Southern District of Missis-

sippi and affirmed by the Court of Appeals for the Fifth

Circuit?

ii

TABLE OF CONTENTS

Page

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Reasons for Denying the Petition.................. .

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Appendin B ... .6 5. ei ccedes a eee 1b

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TABLE OF AUTHORITIES

Page

CASE

E.V. Prentice Mach. Co. v. Associated Plywood Mills,

ie ane wee Gro Comm Cig, 1958)................... 6

Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir.

een ang vcs eves Soke te ness ssc ec’ 6

Integrated Circuits Unlimited v. E.F. Johnson Co., 875

EE 5:

Magnum Import Co. v. Coty, 262 U.S. 159 (1923)....... 5

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). .7, 8, 9

U.S. Postal Service Bd. of Governors v. Aikens, 460

EE ee eee 5, 6

United States v. Oregon State Medical Soc., 343 US.

ee Seca ethan dese ears cede esses 4,8

United States v. Yellow Cab Co., 338 U.S. 338 (1949) ..... 4

Waltman v. International Paper Co., 875 F.2d 468

ee aa Oa care Ske sb 4 yoko x hd ek R Re 7

Weissinger v. United States, 423 F.2d 795 (5th Cir.

EE hd EG ee 5

Young v. City of Houston, Tex., 906 F.2d 177 (5th Cir.

es AB Gag ae AR a 8

STATUTES:

ere giles Sled ds Keon ¥ AW peer Ee Oe Oe 3

Title VII of the Civil Rights Act of 1964............. 5

No. 91-924

¢

In The

Supreme Court of the United States

October Term, 1991

*

DAYAL PARDASANI,

Petitioner,

vs.

SIEMENS ENERGY AND AUTOMATION, INC.,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

¢

Respondent, Siemens Energy and Automation, Inc.

(“Siemens”),! respectfully requests that this Court deny

the Petition for a Writ of Certiorari seeking review of the

judgment of the United States Court of Appeals for the

Fifth Circuit entered on August 28, 1991.

¢

' Respondent Siemens is owned by Siemens Corporation

of Delaware, which in turn is owned by Siemens A.G. of

Germany.

OPINIONS BELOW

The opinion of the Court of Appeals is not reported,

but is included herein at Appendix A, p.la. The Findings

of Fact and Conclusions of Law of the United States

District Court for the Southern District of Mississippi

were also not reported, but are included at Appendix B.,

p.1b.

STATEMENT OF THE CASE

For the sake of brevity, Respondent adopts and incor-

porates by reference the facts of the case as set forth in

the District Court’s Findings of Fact and Conclusions of

Law. Because of the numerous errors in Petitioner’s ver-

sion of this document (Pet., App. 25-App. 60)?, Respon-

dent has reproduced the District Court’s findings and

conclusions at Appendix B, pp.1b-19b. As required by

Supreme Court Rule 24.2, the following is submitted to

point out inaccuracies and omissions in Petitioner’s State-

ment of the Case.

Petitioner misrepresents to the Court that it was a

United States Magistrate who dismissed Petitioner’s

claims of religious discrimination, defamation, inten-

tional infliction of emotional distress and violation of 42

USC § 1981 pursuant to Respondent’s Motion to Dismiss.

2 “Pet.” refers to Petitioner’s Petition for Certiorari and is

followed by the page number cited, either in his brief or the

Appendix. “App. A” or “App. B” references the appendix of

Respondent’s Brief in Opposition followed by the cited page

numbers.

(Pet. 5). In fact, it was U.S. District Court Judge Tom S.

Lee who ruled on Respondent’s Motion and dismissed

these claims. (App. A, p.5a).

Petitioner states that the dismissal of plaintiff's

claims of religious discrimination, defamation, inten-

tional intliction of emotional distress, and violation of 42

USC § 1981 was appealed. (Pet. 5). To the contrary, only

the trial court’s dismissal of Petitioner’s national origin

discrimination and retaliation claims was appealed. (App.

A, p.6a).

Petitioner’s Statement of the Case presents what the

Petitioner wishes the trial court had found. Petitioner’s

gloss reflects a good employee unfairly treated by his

racist boss. Obviously, the District Court found other-

wise. To support Petitioner’s version of the “facts,” Peti-

tioner includes portions of the trial transcript at Pet. App.

109 through App. 175. However, Petitioner’s jumbled

compilation of this appendix takes portions of the trial

testimony out of context and results in a misleading

impression of the proceeding. In fact, it is impossible

even to ascertain from the appendix what witness was

testifying or where the transcript changes from one wit-

ness’ testimony to another’s.

The Statement of the Case and Appendix omit any

reference to the substantial record evidence that contra-

dicts his allegations. For instance, Petitioner makes no

mention of the favorable treatment and assistance he

received from Tommy McLendon when Petitioner’s

father died. (App. A, p.3a and App. B, pp.5b, 6b).

In his attempt to recast the record before this Court,

Petitioner relies extensively on the testimony of Norm

Smith. Petitioner ignores the fact that Norm Smith was

forced to resign his employment because of his unsat-

isfactory job performance and deficient operation of the

Data Processing Department. (App. A, p.2a and App. B,

p.3b). Accordingly, Petitioner’s reliance on Smith’s testi-

mony to establish proper company policy, procedure and

standards (see, e.g. Pet. 10, 11, 12 and 18) is unwarranted.

Petitioner also relies on the alleged statement attrib-

uted to Tom McLendon that, “If I get rid of the minorities

out there, I'll be hard pressed to hire another one.” Peti-

tioner erroneously assumes that this statement is a fact.

However, this alleged statement was totally uncorrobo-

rated at trial and was denied by McLendon. Obviously,

Petitioner is asking this Court to engage in fact finding.

*

REASONS FOR DENYING THE PETITION

Through his Petition for Certiorari, Petitioner asks

this Court to retry this case de novo. Petitioner simply

disagrees with the factual findings of the trial court

which were affirmed by the Fifth Circuit Court of

Appeals. This Court has historically declined to give such

broad scope to its review. United States v. Oregon State

Medical Soc., 343 U.S. 326 (1952); United States v. Yellow

Cab Co., 338 U.S. 338 (1949).

This Petition for Certiorari marks Petitioner’s third

attempt to have the factual findings and legal conclusions

of the trial judge overturned. Petitioner initially filed a

Motion for a New Trial or for Reconsideration in district

court. Petitioner subsequently appealed to the Fifth Cir-

cuit Court of Appeals raising the same issues he now

urges upon this Court. Still dissatisfied, he asks this

Court to grant certiorari. However, as stated long ago by

this Court, “The jurisdiction [of the Supreme Court to

review cases by way of certiorari] was not conferred

upon this Court merely to give the defeated party in the

Circuit Court of Appeals another hearing.” Magnum

Import Co. v. Coty, 262 U.S. 159 (1923).

1. Petitioner claims that this Court should grant

certiorari because the Fifth Circuit Court of Appeals’

ruling was in conflict with U.S. Postal Service Bd. of Gover-

nors v. Aikens, 460 U.S. 711 (1983). Aikens teaches that the

ultimate factual inquiry in a Title VII case is whether the

defendant intentionally discriminated against the plain-

tiff — not whether vel non a prima facie case has been

established. Id. at 715. Contrary to the Petitioner’s con-

tention, Aikens does not overturn the widely accepted

practice that, as held by Fifth Circuit in Weissinger v.

United States, 423 F.2d 795 (Sth Cir. 1970):

The trial judge may conclude, as occurred in this

case, that it is inadvisable to sustain a defen-

dant’s motion midway in the trial and that tria!

should be completed. The denial amounts to no

more than a refusal to enter judgment at that

time, a tentative and inconclusive ruling on the

question of the plaintiff’s proof. It does not pre-

clude the trial judge from making, at the conclu-

sion of the case, findings and determinations at

variance with its prior tentative ruling.

Id. at 797-98. See also Integrated Circuits Unlimited v. EF.

Johnson Co., 875 F.2d 1040 (2nd Cir. 1989) (“During the

resolution process the trial judge in a bench trial must be

free to reassess the evidence, and to alter or modify its

view before final judgment (citations omitted). It should

not be - nor is it - bound in any way by its preliminary

determinations which, upon further reflection it later con-

cludes were mistaken”); Harris v. Plastics Mfg. Co., 617

F.2d 438 (5th Cir. 1980); E.V. Prentice Mach. Co. v. Associ-

ated Plywood Mills, Inc., 252 F.2d 473 (9th Cir. 1958).

Motions for involuntary dismissal or directed verdict

after the plaintiff rests are standard trial practice, and a

defendant is not doomed to ultimate defeat simply

because he does not prevail on his motion.

In Aikens, the Court was concerned that the parties

and the Court had “unnecessarily evaded the ultimate

question of discrimination vel non.” Aikens, 260 U.S. at

714. In the instant case, however, that is not a concern, for

even though the Court found that Petitioner had not

established all the elements of a prima facie case of

national origin discrimination or retaliation, the Court

went further and determined the ultimate question of

discrimination. The Court “assumed” that Petitioner had

established a prima facie case and held that Respondent

had not unlawfully discriminated against the Petitioner.

(App. B, pp.14b, 16b, and 18b). Accordingly, even if this

Court were to agree with Petitioner that the Court erro-

neously analyzed the existence of a prima facie case at the

close of the trial, Petitioner could obtain no relief since

the ultimate factual issue regarding intentional discrimi-

nation was found against the Petitioner.

2. Petitioner, rearguing before this Court his version

of the facts, contends that the Courts below shoulc have

used the Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

“mixed-motive” standard. To the contrary, the plain lan-

guage of the Price Waterhouse opinion mandates that,

under the facts of this case, use of the mixed-motive

analysis would be improper. This Court held in Price

Waterhouse that mixed-motive analysis is not triggered

unless and until the plaintiff proves that a prohibited

factor “played a motivating part in an employment deci-

sion....” Id. at 258. Before the Price Waterhouse analysis

can be utilized, “the plaintiff must show that the

employer actually relied on [a prohibited factor] in mak-

ing its decision.” Id. at 251; accord Waltman v. International

Paper Co., 875 F.2d 468 (5th Cir. 1989).

In Price Waterhouse, the District Court clearly found

that sex stereotyping played a part in Hopkins’ evalua-

tion as a candidate for partnership. Id. at 255. In the case

sub judice, the Court never found that plaintiff's national

origin or the filing of his May 1989 Equal Employment

Opportunity Commission charge played any role what-

soever in his discharge. Petitioner’s former counsel con-

ceded this in his brief to the Fifth Circuit Court of

Appeals:

Even though the Magistrate found legitimate,

non-pretextual reasons for Mr. Pardasani’s ter-

mination in the instant case, he failed to recog-

nize overwhelming evidence that illegitimate

motives played a part in the decision to termi-

nate Mr. Pardasani as well. .. . Had the Magis-

trate made such a finding, he would have

correctly applied the Price Waterhouse stan-

dards...

The lack of this requisite finding is fatal to plaintiff's

argument. Realizing this, Petitioner reargues the evidence

as if this petition were for a trial de novo. As this Court

has noted, however, it will not set aside findings of fact

unless clearly erroneous, with due regard given to the

opportunity of the trial court to judge the credibility of

the witnesses. United States v. Oregon State Medical Soc.,

343 U.S. 326 (1952). In the case sub judice, the trial court

considered the testimony of the Petitioner’s seven wit-

nesses and the Respondent's six witnesses “including

their demeanor and credibility and the relationship of

each individual’s testimony to that of other witnesses and

the exhibits” and thereafter rendered his findings of fact.

(App. B, p.2b).

In asking this Court to overturn the trial court’s

findings as clearly erroneous, plaintiff relies on an

alleged statement attributed to Tommy McLendon. As

stated above, plaintiff's reliance on this uncorroborated

and contested statement is misplaced. Even if the state-

ment were made, which is denied, it still would not prove

national origin or retaliation played a motivating part in

plaintiff’s discharge. Price Waterhouse v. Hopkins, 490 U.S.

at 251; Young v. City of Houston, Tex., 906 F.2d 177 (Sth Cir.

1990) (“stray remarks in the workplace . . . cannot justify

requiring the employer to prove that its [employment]

decisions were based on legitimate concerns.”)

Moreover, as the evidence showed and as the Court

found, the decision to discharge the Petitioner was not

made by the alleged racist, Tom McLendon. The decision

to terminate Petitioner was made by Respondent's

Employee and Community Relations Manager, Michael

Goryl, after discussions with other individuals in Respon-

dent’s management. (App. A, p.5a and App. B, p. 11b).

The Court did not find, nor did the evidence show, that

national origin or retaliatory animus played any role in

the decision to terminate Petitioner. Accordingly, the Price

Waterhouse mixed-motive standard never applied to the

facts as properly found by the district court and as

affirmed by the Fifth Circuit Court of Appeals.

*

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ARMIN J. MOELLER, JR.

(Counsel of Record)

Davip M. THomas II

December 26, 1991

fi

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APPENDIX A

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1106

Summary Calendar

DAYAL PARDASANI, Plaintiff-Appellant,

versus

SIEMENS ENERGY AND

AUTOMATION, INC., Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Mississippi

(CA-J89-246(L))

(August 28, 1991)

Before CLARK, Chief Judge, SMITH and WIENER, Cir-

cuit Judges.

PER CURIAM:*

I.

_Dayal Pardasani appeals from the Magistrate’s dis-

missal of his claims of national origin discrimination and

* 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 pro-

fession.” Pursuant to that rule, the court has determined that

this opinion should not be published.

2a

retaliatory termination against defendant Siemens Energy

and Automation, Inc. (Siemens). We affirm.

II.

In 1981, Siemens hired Pardasani as a systems

analyst. From 1982 through 1985, Pardasani received

favorable annual evaluations from his supervisor, the

Manager of Information Systems, Norm Smith.

Pardasani’s job involved receiving requests from

other departments in the company and developing and

modifying computer software to meet these requests.

In 1986, Siemens became dissatisfied with Smith and

the Information Systems Department. As a result Smith

resigned and Siemens appointed Tom McLendon, the

most senior employee in the Department, as Acting Man-

ager in charge of the applications side of the Department.

McLendon reported to controller Bob Steil.

McLendon and Pardasani had worked together in the

same department for years, but had what the Plaintiff

terms a “sour relationship.”

After only three months as Acting Manager, McLen-

don was to perform the annual evaluation for Pardasani,

due in October 1986. Because he had been supervisor for

a short period, McLendon solicited comments and

reviews from other supervisors in the company. Based on

this information, McLendon completed his evaluation

and met with Pardasani to review it. Pardasani refused to

accept his evaluation of 2.3 on a 5 point scale, claiming

that any unsatisfactory work resulted from improper

instructions from the requesting party. As a result of his

3a

poor evaluation, Pardasani did not receive a raise in

1986-87.

Pardasani complained to the Employee and Commu-

nity Relations Manager Michael Gory] regarding his eval-

uation. After a meeting between Pardasani, McLendon

and Goryl, the evaluation remained the same. Gory]! also

expressed dissatisfaction with Pardasani’s work.

In February 1987, Pardasani requested a leave of

absence to go to India and attend his father’s funeral and

settle his father’s affairs. His request was granted. During

Pardasani’s absence, which extended beyond his accrued

vacation time, McLendon made sure that Pardasani

received full pay, a $1,000 advance to pay for the airline

ticket and participated in a collection to assist Pardasani.

In May 1987, Pardasani filed a claim with the Equal

Employment Opportunity Commission (EEOC), alleging

age, race and religious discrimination in the denial of a

fair evaluation and promotion to senior analyst. In actu-

ality, nobody was ever promoted to senior analyst after

McLendon became Acting Manager. Siemens declined to

fill the vacancy in order to save money.

Subsequent to Pardasani’s evaluation and meeting

with Goryl and McLendon, his work performance started

to decline, as noted in his personnel file.

In September 1987 Siemens implemented a security

system for its computers which limited access to pro-

grams in order to prevent more than one analyst from

working on a program at one time. At this same time,

Siemens also restricted access to ICCF libraries (the actual

locations in the computer where the programmer/analyst

4a

would work on changing programs or creating new

ones). Both of these changes were implemented at the

suggestion of a Price Waterhouse auditor’s report regar-

ding the Information Systems Department.

On or about September 21, 1987, Pardasani received

an assignment to modify a tag print program. Pardasani

repeatedly delayed the due date for the completed pro-

ject. Despite two extensions, the program remained

incomplete one and a half weeks after the initial due date.

Pardasani alleges that the restrictions for the new

security systems and library access caused the delays.

Despite these difficulties, Pardasani claims that the pro-

gram was almost complete on October 19. Testimony of

other witnesses contradict Pardasani. At first Pardasani

claimed he could not complete the project without greater

access and then he claimed he was almost finished. One

system analyst testified that all the analysts knew the

security restrictions and library access restrictions, but

still had access to all the tools and information required

to complete assignments. Data Processing Systems Super-

visor Truhett testified that Pardasani called him one

weekend asking for information to circumvent the secu-

rity system for working on the tag print program. Truhett

told Pardasani to ask McLendon for permission, which

Pardasani never did.

The Monday following this conversation, at McLen-

don’s direction, Truhett took over the tag print program

and found first that Pardasani had not progressed to the

extent represented and second that completion was possi-

ble without violating the security system, despite Par-

dasani’s claims to the contrary. As a result of Pardasani’s

5a

failure to complete the program, McLendon asked him to

turn over the project on October 19, 1987. At first Par-

dasani refused to do so, keeping to himself the informa-

tion and location of ICCF libraries needed to complete the

project. After McLendon asked a few more times, coupled

with a threat of termination for failure to comply with the

Manager’s orders, Pardasani agreed to turn over all of the

requested information. When McLendon received the

information from Pardasani, McLendon understood that

he had all the necessary information, however, later that

same day Pardasani advised McLendon in writing of

additional information needed to complete the program.

This last turn of events prompted McLendon to meet

with Goryl and discuss Pardasani’s performance, speci-

fically McLendon’s loss of trust in Pardasani and fear for

the security of the data processing information. After

speaking with several corporate officials, Goryl decide

(sic) to terminate Pardasani for insubordination and

unsatisfactory work performance. Pardasani was termi-

nated October 23, 1987. McLendon and other existing

system analysts assumed Pardasani’s duties. Approx-

imately two years later, a systems analyst was hired at a

comparable level.

On October 26, 1987, Pardasani filed a second charge

with the EEOC, alleging that his termination was in retal-

iation for his first charge with the EEOC. He then filed

suit against Siemens in April 1989. The district judge

granted Siemens’ Motion to Dismiss on Pardasani’s

claims for religious discrimination, defamation, inten-

tional infliction of emotional distress, and violation of 42

U.S.C. § 1981.

6a

The case regarding the age, race (sic) national origin

discrimination and the retaliatory termination was tried

before a magistrate judge. At the conclusion of Par-

dasani’s case, his claims of age and race discrimination

were dismissed. After trial the court dismissed plaintiff's

remaining claims of national origin discrimination and

retaliation finding that the plaintiff failed to make his

prima facie case. Pardasani appeals only this last dis-

missal.

IIL.

Pardasani raises two issues before this court. First, he

argues that the district court erred in focussing on the

prima facie case once the defendant had presented his

evidence. Instead, he contends the magistrate judge

should have focused on the ultimate issue of discrimina-

tion. Pardasani’s second argument is that the district

court applied the wrong standard for reviewing the

claims. According to Pardasani, the district court should

have applied the “mixed motive” standard announced in

Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989), instead

of the test outlined in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

A. Standard of Review

The clearly erroneous standard applies to the district

court’s finding on discrimination. See Barnes v. Yellow

Freight Sys., 830 F.2d 61, 62 (5th Cir. 1987). This Court

must review findings of fact under the same standard.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985).

7a

B. The District Court Was Correct to Dismiss Plaintiff's

Claims for Failure to Make a Prima Facie Case

Pardasani argues that under United States Postal Ser-

vice Bd. of Governor (sic) v. Aikens, the court should not

have focused on the issue of plaintiff’s prima facie proof

once it heard the case on the merits. In Aikens, the

Supreme Court held that when a defendant in a discrimi-

nation case loses a motion to dismiss or a motion for

directed verdict and then offers evidence of legitimate,

nondiscriminatory reasons, the factfinder must then

decide the ultimate issue of discrimination. U.S. Postal

Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-15

(1983). Once the defendant presented his evidence, the

plaintiff’s prima facie case is no longer the issue.

The court’s initial denial of the motion to dismiss

does not preclude a later determination that the plaintiff

did not make out a prima facie case after all. In Wetssinger

v. United States, 423 F.2d 795 (5th Cir. 1970), this Court

held that denying a defendants motion at the end of

plaintiff's case is merely a tentative finding that plaintiff

met his burden. Id. at 797-98. Denying a motion to dis-

miss does not preclude the trial judge, at the conclusion

from findings and determinations at variance with the

prior tentative rulings. Id.

In this case, after receiving defendant Siemens’ evi-

dence regarding Pardasani’s work performance and ter-

mination, the court could correctly find that the plaintiff

failed to prove all the elements of his prima facie case.

Specifically, the court found that Pardasani was not qualli-

fied for his position, a necessary element in his prima facie

8a

case for national origin discrimination involving his pro-

motion and termination. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).2(sic) In addition, evidence

supports the court’s finding that the plaintiff did not

meet his burden of proving that he was replaced by a

nonprotected class member. Nobody was promoted to

senior analyst and nobody was hired in his position until

two years after his termination. |

Regarding the claim of retaliatory discharge, the dis-

trict court correctly found that Pardasani failed to meet

the third element of his prima facie case. Pardasani was

required to show (1) that he was engaged in an activity

protected by Title VII, (2) that an adverse employment

action occurred, and (3) that there was a causal connec-

tion between the participation in the protected activity

and the adverse employment decision. See McDaniel v.

Temple Indep. School District, 770 F.2d 1340, 1346 (5th Cir.

1985); Jack v. Texaco Research Center, 743 F.2d 1129 (5th Cir.

1984). In light of Siemens’ evidence regarding theyeasons

for Pardasani’s termination and the history of his perfor-

mance, the court could find that plaintiff failed to prove

any “causal connection” between his filing the EEOC

claim and his discharge.

' To establish a prima facie case of national origin discrimi-

nation regarding his evaluation or discharge, the plaintiff must

prove (1) that he was a minority group member, (2) that he was

qualified for the job or deserved a fair evaluation, (3) that he

was discharged or suffered adverse treatment, and (4) that he

was replaced by a nonminority group member or a non-

minority group member received a better evaluation for the

same work. See McDonnell Douglas at 801; Davin v. Delta Air-

lines, Inc., 678 F.2d 567 (5th Cir. 1982).

9a

After a discrimination case is fully heard on the

merits, the court usually should not address the issue of

plaintiff's prima facie case, but instead address the ulti-

mate issue of discrimination. Aikens at 714-15. When,

however, a court, upon hearing additional evidence

regarding the plaintiffs qualifications and replacements,

finds that the plaintiff failed to meet his initial burden, it

may vacate an earlier finding and dismiss the case for

failure to prove a prima facie case. Here the court correctly

dismissed the actions for failure to prove a prima facie

case. The record supports the court’s findings. They are

not clearly erroneous.

C. The Defendant's Behavior Does Not Trigger the “Mixed

Motive (sic) Test of Price Waterhouse v. Hopkins

In its opinion, the district court stated that even if

Pardasani had established a prima facie case of national

origin discrimination or retaliatory discharge, he had

failed to show pretext after the defendant’s showing of

legitimate, nondiscriminatory reasons for the termination

and evaluation. Pardasani argues that the court should

not have applied the pretext test in McDonnell Douglas,

but instead applied that “mixed motive” test announced

in Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989).

Because Siemens’ behavior does not justify bypassing

McDonnell Douglas, the court correctly refused to apply

the Price Waterhouse test.

In Price Waterhouse, the Supreme Court held that an

employer may still be liable for discrimination if its

legitimate reasons for hiring or firing are mixed with

10a

nonlegitimate reasons. Id. at 1795. If the plaintiff can

prove that a discriminatory purpose played a part in the

defendant's decision, the burden is then upon the defen-

dant to show that the same decision would have been

made absent the discriminatory purpose. Id.

It is plaintiff’s contention that the district court

should have applied this mixed motive standard to find

against Siemens, despite the defendant’s evidence of

legitimate, nondiscriminatory reasons. This Court has

recognized that Price Waterhouse requires a new standard

of proof for mixed motive discrimination cases, but it has

also recognized, as the Supreme Court did, that not all

cases are mixed motive. Some remain pretext cases. See

Waltman v. International Paper Co., 875 F.2d 468 (5th Cir.

1989). Before a trial court applies the mixed motive test, it

must find that the case involves mixed motive. Price

Waterhouse at 1789 n.12. If the plaintiff does not establish

that the discriminatory purpose played a motivating part,

then he or she must show pretext. /d.

In Young v. City of Houston, Texas, 906 F.2d 177 (5th

Cir. 1990), this Court addressed the proof necessary to

show that a mixed motive exists. Citing Price Waterhouse,

we held that the employee must show that the employer

actually relied on the protected factor when making its

decision. Stray remarks regarding stereotypes alone are

not sufficient. Id. at 182. In that case statements that

Young was a “white token” and “white faggot” did not

trigger the mixed motive test. These statements did not

rise to the level of racist animus necessary to bypass

McDonnell Douglas. Id. at 181.

lla

Pardasani alleges that the statement “If I get rid of

the minorities out there, I’ll be pressed to hire another,”

allegedly made by McLendon sufficiently demonstrates

national origin animus. The district court obviously did

not find that this statement sufficed to bypass McDonnell

Douglas. The alleged statement does not constitute the

level of ethnic animus established in Walsdorf v. Bd. of

Commissioners, 857 F.2d 1047 (Sth Cir. 1988). Walsdorf

affirmed the grant of Title VII relief to a woman who was

not promoted. In that case, the supervisor said about the

plaintiff, “ain’t no bitch going to get this job.” The state-

ment in today’s case which Pardasani suggests is equal, is

not. Therefore he was required to demonstrate pretext or

produce more specific evidence of intentional discrimina-

tion under McDonnell Douglas.

D. The District Court Correctly Allowed the Claim Based on

National Origin Discrimination to Go Forward.

Siemens argues that because Pardasani did not check

the box next to national origin on the EEOC charging

form, Pardasani is precluded from basing a suit on that

claim. The court correctly found that Pardasani’s mistake

did not bar his claim.

This Court has held that failure to check a box on an

EEOC form does not preciude a plaintiff’s Title VII claim.

See Galvan v. Bexar County, Texas, 785 F.2d 1298 (5th Cir.

1986); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

Cir. 1970). Siemens had adequate notice regarding Par-

dasani’s EEOC charges and a mere technicality does not

preclude Pardasani’s bringing this suit.

12a

a.

The judgment appealed from is

AFFIRMED.

APPENDIX B

1b

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

DAYAL PARDASANI

Plaintiff

V. CIVIL ACTION NO.

)

)

)

)

SIEMENS ENERGY AND) J89-0246(L)

AUTOMATION, INC., :

)

)

Defendant

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.

BACKGROUND

This matter is before the Court as the result of plain-

tiff Dayal Pardasani’s (“Pardasani” or “plaintiff”) Second

Amended Complaint filed on August 15, 1989, complain-

ing about disparate employment conditions and his ter-

mination by defendant, Siemens Energy & Automation,

Inc. (“Siemens” or “Company”), on the basis of his race,

national origin, age, religion and retaliation for filing a

discrimination charge with the Equal Employment

Opportunity Commission (“EEOC”). Plaintiff also com-

plained of alleged defamation and intentional infliction of

emotional distress. Pursuant to Defendant’s Motion for

Summary Judgment, the Court dismissed plaintiff’s

claims under 42 U.S.C. § 1981 and his religious discrimi-

nation claims, defamation claims, and claims of inten-

tional infliction of emotional distress by Memorandum

Opinion and Order dated June 27, 1990.

2b

Pursuant to the parties’ agreement, the parties stipu-

lated to a hearing before and entry of judgment by the

undersigned U.S. Magistrate. The trial was conducted on

October 10, 11, 12 and 18, 1990. Following the plaintiff

resting his case, defendant moved for a directed verdict

and the Court dismissed plaintiff’s claims concerning age

discrimination and race discrimination on the basis that

the plaintiff had presented no credible, material evidence

that plaintiff had been discriminated against because of

his age or race (as distinguished from his national origin,

Indian). Upon consideration of the entire record in this

case, the Court hereby affirms its dismissal of plaintiff's

race and age discrimination claims.

The plaintiff called seven witnesses who introduced

41 exhibits. Siemens called six witnesses and introduced

69 exhibits. Upon considering the testimony of plaintiff’s

and defendant’s witnesses, including their demeanor and

credibility and the relationship of each individual’s testi-

mony to that of other witnesses and the exhibits, includ-

ing logical inferences which can be drawn from them, the

Court hereby makes the following findings:

I].

FINDINGS OF FACT

Mr. Pardasani was hired by Siemens on November

23, 1981 as a systems analyst. Siemens considered his job

performance satisfactory through early 1986. From 1982

through 1985, Pardasani received favorable annual eval-

uations on his performance from his supervisor, the Man-

ager of Information Systems, Norm Smith.

3b

The Information Systems Department (herein

referred to as “the Data Processing Department”) did not

actually produce products sold by Siemens, but provided.

data processing services to all of the departments in

Siemens’ Jackson facility. Siemens’ Jackson facility

employs approximately 575 employees engaged in the

assembly and manufacture of large electrical and electro-

mechanical devices such as transformers and related elec-

trical distribution equipment for utility companies.

As a systems analyst, Mr. Pardasani’s job involved

receiving assignments from his departmental supervisor

(herein referred to as the “Data Processing Manager”).

Specifically, when a user of data processing services in

another department requested that an existing computer

program be changed or a new program written to per-

form certain functions relating to their department's

activities, it was Mr. Pardasani’s responsibility to under-

stand the user’s “concept” concerning what the user

wanted to accomplish with a computer program, and to

transform that concept into logical computer language so

as to create a new program or modify an existing pro-

gram to achieve the user’s objectives.

In early 1986, Siemens became dissatisfied with the

Data Processing Manager’s operation of the Data Process-

ing Department as well as his job performance. Data

Processing Manager Smith was given the option of either

resigning or being terminated; Mr. Smith elected to

resign. Around July, 1986, senior systems analyst Tom

McLendon, the most senior employee in the Data Process-

ing Department, became Acting Data Processing Manager

at least with respect to the “applications” side of the

4b

department as distinguished from the “systems” side.

McLendon reported to Controller Bob Steil.

While Acting Data Processing Manager McLendon

and plaintiff had worked together effectively for years,

they had what the plaintiff characterized as a “sour”

personal relationship.

Acting Data Processing Manager McLendon was

advised that as part of his duties, he must conduct Par-

dasani’s annual evaluation which was due October, 1986.

Mr. McLendon protested that he had not worked with Mr.

Pardasani long enough in a supervisory capacity to effec-

tively evaluate his work. Nevertheless, Controller Steil

advised him that he must evaluate the plaintiff. To do so,

McLendon solicited user comments concerning the qual-

ity of Pardasani’s work. User comments were received by

the Acting Data Processing Manager from Manager of

Production Control Charles Herrington, Supervisor of

Drafting Paul Gardner, Accounts Payable Supervisor

Debbie Jackson and Accounting Manager Al Woelfle, who

formally judged plaintiff's performance to be unsatisfac-

tory and especially unacceptable relative to his status as

the most senior systems analyst.

Based upon these user comments, Acting Data Pro-

cessing Manager McLendon completed his portion of the

written evaluation around October 1, 1986 and met with

plaintiff to discuss_it. Plaintiff told McLendon that he

would not accept his unsatisfactory rating of 2.3 on a5

point scale since he considered the evaluation to be

unfair. As a result of the unfavorable evaluation, Mr.

5b

Pardasani received no raise in 1986-87. Pardasani attrib-

uted the user’s complaints concerning his work to incor-

rect instructions from the users or incorrect use of his

completed programs by them.

On December 1, 1986, Pardasani wrote a letter to

Employee & Community Relations Manager Michael

Goryl complaining of the evaluation. On December 16,

1986, Mr. Goryl met with Mr. McLendon and Mr. Par-

dasani concerning his evaluation. Mr. Pardasani

explained the reasons why he felt the evaluation was

unfair and McLendon, who had been promoted to Data

Processing Manager on November 1, 1986, explained the

reasons for his low evaluation. When Mr. Pardasani and

Mr. McLendon were unable to agree to any changes in the

evaluation, Employee and Community Relations Manager

Goryl advised Mr. Pardasani that he could not change the

evaluation since it was the Data Processing Manager’s

responsibility to complete it. Mr. Goryl added that he had

been a user of Mr. Pardasani’s services and had found

them unsatisfactory also. Mr. Goryl’s dissatisfaction was

apparently the result of Mr. Pardasani’s work on a pen-

sion program project in which the Employee & Commu-

nity Relations Department encountered numerous

problems which were reported to Mr. Gory] by Personnel

Assistant John Lee, a black male, who was also dissat-

isfied with Mr. Pardasani’s performance.

In early February, 1987, Mr. Pardasani was notified

that his father, who resided in India, had died. Mr. Par-

dasani requested a leave of absence in order to return to

India to tend to his family’s affairs, and it was granted.

Mr. Pardasani did not return from his leave of absence for

over three weeks. Plaintiff did not have sufficient accrued

6b

leave to be paid for the entire period; however, on Data

Processing Manager McLendon’s recommendation, Sie-

mens approved payment of full salary for the additional

time off that plaintiff did not have sufficient accrued

leave to cover. Additionally, the plaintiff was absent an

additional two and one-half days during this period and

was delayed in coming to work for several hours during

certain days. Data Processing Manager McLendon recom-

mended and the Company approved payment of his full

salary for these periods. Additionally, Mr. McLendon rec-

ommended and Siemens approved payment of a $1,000

advance, in addition to plaintiff's salary, in order that Mr.

Pardasani could purchase the airline tickets necessary for

his trip to India. Mr. McLendon was also involved in

taking up a collection among data processing employees

to assist Mr. Pardasani.

On May 29, 1987, Pardasani filed a charge with the

Equal Employment Opportunity Commission alleging

that he had been discriminatorily denied a fair evaluation

and promotion to senior systems analyst on the basis of

his race, age and religion. While Mr. Pardasani alleges

that he was discriminatorily denied a promotion to a

senior systems analyst position around January, 1987, he

concedes that no one was ever promoted to that position

and the only person who ever held the position of senior

systems analyst was Mr. McLendon. The uncontroverted

testimony of Company witnesses established that Sie-

mens’ officials made the decision not to fill the position in

order to save money and the functions of the position

were absorbed by Data Processing Manager McLendon,

the previous incumbent, and other systems analysts.

7b

Subsequent to plaintiff's 1986 performance evalua-

tion and his meeting regarding the evaluation with Tom

McLendon and Mike Goryl, plaintiff's work performance

continued to decline. From January, 1987 through mid-

September, 1987, Data Processing Manager McLendon

continued to note performance problems and user com-

plaints as shown in numerous memoranda from Mr. Par-

dasani’s departmental and personnel files. However,

plaintiff's performance problems were not serious

enough to require consultation by Data Processing Man-

ager McLendon with Mr. Pardasani.

Around August, 1987, Data Processing Manager

McLendon was advised of the results of a Price Water-

house auditor’s report concerning Data Processing

Department operations. The Price Waterhouse report rec-

ommended implementation of a security system to pre-

vent more than one computer programmer/analyst

working on the same program at the same time ( fre-

quently without the knowledge of the other program-

mer). Previously this practice had resulted in changes

being made to a program which were unknown to the

other programmer. The Price Waterhouse report also rec-

ommended restricting access to ICCF libraries (the actual

locations in the computer where the programmer /analyst

would work on changing programs or creating new

ones).

Data Processing Manager McLendon placed Data

Processing Systems Supervisor Dane Truhett in charge of

writing the security system program. Dane Truhett solic-

ited the ideas of all data processing employees concern-

ing the security system. With McLendon’s approval,

8b

Truhett implemented the security system around Septem-

ber 21, 1987, although cosmetic refinements were made

and bugs were eliminated from the system for the next

several weeks.

During this same period, McLendon directed Truhett

to implement ICCF library restriction rules which limited

each programmer/analyst to no more than eight (8) of 99

libraries. Around September 23, 1987, the plaintiff

learned that systems analyst Mark Anderson had access

to more than eight (8) libraries. On September 25, 1987,

Mr. Pardasani wrote a letter to Mr. Goryl complaining

about McLendon’s unfair treatment of him by giving

Anderson access to more than eight (8) libraries while he

was restricted to eight (8) libraries. However, when

McLendon and Truhett became aware of Mark Ander-

son’s additional access to ICCF libraries, on or about

September 25, McLendon directed Truhett to immediately

correct the problem, which he did. Accordingly, the evi-

dence establishes that Mark Anderson’s additional ICCF

library access compared to that of other programmer/

analysts lasted for only two days and was the result of an

oversight by Dane Truhett. Also, the evidence indicates

that Anderson never used his additional access to violate

the security rules.

Around September 21, 1987, Mr. Pardasani was

assigned the task of making certain changes to a tag print

program. Pardasani estimated that the amount of time

required to complete the project should be two weeks.

However, at the end of two weeks he had not completed

the project and requested an additional week. At the end

of the additional week his work remained incomplete and

he requested an additional three days. Again, McLendon

9b

granted him additional time. However, notwithstanding

the additional time, plaintiff’s work on the project was

not completed.

During this period, the plaintiff alleges that he was

not able to work on the project because he did not have

the necessary tools to complete work on the project

because of the implementation of the security system and

the ICCF library rules. The plaintiff claims that he had to

violate the security rules in order to work on the project.

Despite these difficulties, the plaintiff claims that on

October 19 he had completed all changes in the tag print

program and performed most of the necessary testing of

the changes.

The plaintiff’s testimony and testimony of other wit-

nesses, especially Dane Truhett and Mark Anderson, con-

tradict his assertions. While the plaintiff testified that he

was denied access to the proper commands and tools

necessary to make changes in the tag print program, at

other points he testified that he had completed all neces-

sary changes and was completing the testing phase on

October 19, 1987. Systems analyst Anderson testified that

all data processing programmer/analysts knew the secu-

rity rules, knew the ICCF library restrictions, and had

access to all information and tools necessary to perform

their job functions. Data Processing Systems Supervisor

Truhett testified that he received a telephone call from

Dayal Pardasani on Saturday, October 17, 1987 at his

home and Pardasani requested that Truhett provide him

information to circumvent the security system in working

on the tag print program. Truhett advised Pardasani that

he did not have the authority to do that, but advised him

10b

to call Data Processing Manager McLendon for authoriza-

tion. Pardasani concedes that he never called McLendon

for authorization or assistance. Truhett testified that

while he could not condone violating departmental rules

concerning the security system, he was available to pro-

vide Pardasani with any information he needed in order

to work on his project. The following Monday, Truhett

took over the tag print program project at McLendon’s

request and, contrary to Pardasani’s testimony, found

that the work had not progressed to the point represented

by Pardasani, but that completion of the project required

much time and effort over parts of the next six work

days. Truhett testified, however, that he was able to com-

plete the project without violating the security system.

As the result of Pardasani’s failure to complete the

project, on October 19, 1987, McLendon requested that

Pardasani turn the project over to him with all necessary

information, including the location of the information in

ICCF libraries. Pardasani refused to do so. McLendon

then went to Employee & Community Relations Manager

Goryl’s office and spoke with Goryl and Controller Steil

who was also present. With Steil’s concurrence, Goryl

advised McLendon to return to the Data Processing

Department, call Pardasani into McLendon’s office, make

the same request a third time and, if Pardasani did not

turn over the information, make the same request a

fourth time coupled with the threat of immediate termi-

nation for failure to comply with the Data Processing

Manager’s order. Although Pardasani once again refused

to provide the requested information, upon being advised

of the consequences for another refusal, Pardasani agreed

to turn over the requested information. Pardasani then

|

11b

gave the information to McLendon, and left him with the

understanding that he had received all of the information

concerning the tag print program project.

Later that day, McLendon received a written state-

ment from Pardasani advising him of additional informa-

tion needed to finish the tag print program project. Upon

receipt of this information, McLendon met with

Employee and Community Relations Manager Gory]

advising him that he had lost confidence in Pardasani

and feared for the security of the data processing infor-

mation in the department. He recommended to Mr. Goryl

that Pardasani either be transferred out of the department

or terminated.

Mr. Goryl spoke with several corporate officials con-

cerning the situation, including Controller Steil, acting

General Manager Jim Malia, Associate General Counsel

Mike Williamson, Manager of Industrial Relations Bruce

Petterson at Siemens’ headquarters in Atlanta, Georgia,

and other corporate officials. Goryl decided that Par-

dasani should be terminated on the basis of insubordi-

nate conduct and unsatisfactory job performance.

Siemens’ officials uniformly concurred in Mr. Goryl’s

decision. Goryl prepared a letter of termination which

Mr. McLendon signed. Mr. Pardasani was terminated on

October 23, 1987.

On October 26, 1987 Pardasani filed a second charge

with the Equal Employment Opportunity Commission

alleging his termination was in retaliation for filing his

May 29, 1987 charge cf race, age and religious discrimina-

tion.

12b

Plaintiff claims that statements by McLendon show

animus against him because he is a member of a minority

group, i.e. , Indian. However, Mr. McLendon’s comments

concerning Indian dress and an Air India bombing inci-

dent reveal no animus towards Indians as a people. More-

over, these comments are alleged to have been made by

Mr. McLendon at a time when he was not a management

representative. None of these comments were directed to

Mr. Pardasani individually, and none were the subject of

a complaint by Mr. Pardasani to Siemens.

Mr. Pardasani claims that certain racial jokes or

remarks demonstrate national origin animus against him.

However, the racial remarks/jokes referred to by Mr.

Pardasani and certain witnesses did not involve Indians

and generally were made at a time when Mr. McLendon

was not a management representative. Further, black wit-

nesses, John Lee and Nathan Slater, testified that they

considered Tom McLendon a friend and, although neither

are presently employed by Siemens’, they continue to

enjoy a personal social relationship with him. Addi-

tionally, all witnesses testified that the racial remarks

were made in the context of jokes among friends and that

the plaintiff was neither the object of nor a participant in

the remarks/jokes.

With respect to the plaintiff’s job performance, four

witnesses, Manager of Production Control Herrington,

Accounting Manager Al Woelfle, Accounts Payable

Supervisor Jackson and Supervisor of Drafting Paul

Gardner, testified as to plaintiff’s continuing unsatisfac-

tory job performance through his date of termination.

Indeed,the plaintiff's own witnesses, Data Processing

Systems Supervisor Truhett, Systems Analyst Anderson

13b

and Systems Analyst Slater testified that Pardasani’s job

performance was unsatisfactory and/or he was the worst

systems analyst in the department in 1986-87 even though

he was the most senior analyst.

Following his termination, the plaintiff’s duties were

assumed by Data Processing Manager McLendon and

other systems analysts. Approximately two years later, a

systems analyst was hired at a comparable level.

Ill.

CONCLUSIONS OF LAW

CONCERNING PLAINTIFF’S CLAIMS

A. Discriminatory Evaluation Claim

Plaintiff alleges disparate treatment. The burden of

proof in disparate treatment cases is set forth by the

United States Supreme Court in Texas Department of Com-

munity Affairs v. Burdine, 450 U.S. 248 (1981). The plaintiff

bears the burden of presenting a prima facie case of dis-

crimination. Once a prima facie case is established, the

burden of production shifts to the employer to articulate

a legitimate non-discriminatory reason for the alleged

adverse treatment. Once the defendant articulates a legit-

imate non-discriminatory reason, the plaintiff bears the

burden of proving the articulated reason is a pretext for

discrimination. At all times, the plaintiff bears the burden

of proving, by a preponderance of evidence, that he was a

victim of intentional discrimination.

To establish a prima facie case of national origin dis-

crimination, plaintiff must show: (1) that he was a minor-

ity group member; (2) that he was qualified to receive a

14b

better evaluation; (3) that he suffered adverse treatment;

and (4) after receiving adverse evaluation, the employer

gave a better evaluation to a non-minority group member

who had performed similar work or engaged in similar

conduct as that which caused plaintiff’s low evaluation.

See Davin v. Delta Airlines, 678 F.2d 567 (5th Cir. 1982);

McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973).

Assuming the plaintiff established a prima facie case,

the defendant articulated a legitimate non-discriminatory

reason for the plaintiff’s low rating — it was based upon

the user’s comments. Plaintiff presented no evidence that

the user’s comments were a pretext for intentional dis-

crimination. Indeed, the plaintiff stated that he was on

good terms with all of the Siemens’ representatives who

testified about his unsatisfactory work performance and

Mr. Pardasani conceded that they had not discriminated

against him.

B. Failure to Promote Claim

Plaintiff presented no facts to support his claim that

Siemens failed to promote him to Senior Systems analyst

because of his national origin and therefore, failed to

establish a prima facie case of discrimination. There is no

evidence that there was ever any vacancy by which he

could have suffered an adverse personnel action. There is

no evidence that any non-minority was ever promoted to

Senior Systems Analyst. Clearly, the plaintiff cannot meet

the second, third and fourth elements necessary to estab-

lish a prima facie case. See Davin v. Delta Airlines, supra;

McDonnell Douglas Corp. v. Green, supra.

15b

C. The Plaintiff’s Termination

In order to establish a prima facie case of national

Origin discrimination concerning his termination, the

plaintiff must show: (1) that he was a minority group

member; (2) that he was qualified for the job; (3) that he

was discharged; and (4) after his discharge, the employer

either hired a non-minority group member to replace him

or retained a non-minority group member who had

engaged in conduct similar to that which caused the

plaintiff's termination. Davin v. Delta Airlines, supra;

McDonnell Douglas Corp. v. Green, supra. The plaintiff

failed to establish the second and fourth elements of his

prima facie case. Although the plaintiff insists that he was

qualified for his job, Siemens found his performance,

behavior and attitude, including insubordinate conduct,

unacceptable. Mr. Pardasani’s opinion of job performance

is based exclusively upon his own perception. Indeed, his

perception of satisfactory job performance during 1986-87

was not even shared by his own witnesses. However, the

uncontroverted testimony of Siemens’ witnesses was that

they considered his job performance unacceptable. At the

time of his termination, plaintiff was not performing his

job at a level which met Siemens’ legitimate expectations.

Elliott v. Group Medical & Surgical Service, 714 F.2d 556 (5th

Cir. 1983 ); Kephardt v. Institute of Gas Technology, 630 F.2d

1217, 1219 (7th Cir. 1980), cert. denied, 450 U.S. 959

(1981).

Additionally, the plaintiff was not replaced at the

time of his termination. Mr. Pardasani presented no evi-

dence that any other employee, especially a non-minority

employee, violated security rules, was insubordinate, did

16b

not timely finish projects, was considered to have unac-

ceptable job performance and was retained while the

plaintiff was terminated. Indeed, plaintiff failed to pre-

sent any evidence of a non-minority employee receiving

better treatment under similar circumstances, while the

defendant presented substantial evidence that Company

policies were enforced, and that both minority and non-

minority employees violating company policies were ter-

minated.

The plaintiff’s case concerning his termination

appears to be premised on the theory that he was dis-

charged for not completing the tag print program project

on October 19, 1987. Since the plaintiff alleges that he was

discriminatorily denied the tools necessary to complete

the project, he asserts that his discharge for failing to

complete the project was discriminatory. However, the

uncontroverted testimony of Company witnesses estab-

lishes that the immediate cause of termination was plain-

tiff’s insubordinate refusal to turn over requested project

information on October 19, coupled with his subsequent

release of additional information which was supposed to

have been furnished previously that same day.

The testimony of plaintiff's witnesses, Dane Truhett,

Mark Anderson and Nathan Slater, contradicts plaintiff's

claims that he was discriminatorily denied access to tools

and commands needed to complete the tag print program

project. Even assuming plaintiff established a prima facie

case of discrimination, defendant's assertion that the

immediate reason for termination was plaintiff’s insubor-

dinate conduct coupled with Data Processing Manager

McLendon’s loss of confidence in him constitute legiti-

mate, lawful reasons for his discharge. Plaintiff has failed

17b

to produce any evidence indicating that defendant's prof-

fered and (sic) immediate reason for discharge was a

pretext for discrimination.

D. Retaliatory Discharge Claim

In addition to his national origin claim, plaintiff

asserts that he was discharged in retaliation for filing a

May 29, 1987 charge of discrimination with the EEOC.

To establish a prima facie case of unlawful retaliation,

plaintiff must show: (1) that he was engaged in an activ-

ity protected by Title VII; (2) that an adverse employment

action occurred; and (3) that there was a causal connec-

tion between the participation in the protected activity

and the adverse employment decision. McDaniel v. Temple

Independent School District, 770 F.2d 1340, 1346 (5th Cir.

1985); Jack v. Texaco Research Center, 743 F.2d 1129 (5th Cir.

1984); McMillan v. Rust College, Inc., 710 F.2d 1112 (5th Cir.

1983).

The plaintiff’s evidence does not establish a prima

facie case because it does not show a “causal connection”

between his May 29, 1987 EEOC charge and his October

23, 1987 termination. Apparently, plaintiff's employment

continued without incident at the time he filed his first

EEOC charge until mid-September, 1987. While the plain-

tiff testified that he believed Data Processing Manager

McLendon denied him the opportunity to attend educa-

tional programs during this period, plaintiff failed to

identify any educational program conducted in the Data

Processing Department from which he was excluded.

Employee & Community Relations Manager Gory] testi-

fied without contradiction that the plaintiff made no

18b

request to use the company’s educational assistance pro-

gram during this period although he had used it in the

past.

While plaintiff apparently claims that he began hav-

ing notes put in his personnel file after he filed his EEOC

charge, this argument is refuted by the evidence showing

that such notes were placed in his file both before and

after he filed the charge.

Assuming the plaintiff established a prima facie case

of retaliatory discharge, the plaintiff failed to establish

that retaliation, rather than insubordination, was the

immediate cause for termination. “Whether or not there

were other reasons for the employer’s action, the

employee will prevail only by proving that ‘but for’ the

protected activity [he] would not have been subjected to

the action of which [he] claims. If the employee does not

bear that burden of persuasion, [he] may not prevail.”

Jack v. Texaco Research Center, 743 F.2d at 1131; McDaniel v.

Temple Independent School District, supra ; Smalley v. City of

Eatonville, 640 F.2d 765, 769 (Sth Cir. 1981).

Defendant articulated legitimate non-discriminatory

reasons for termination and its right to dismiss the plain-

tiff irrespective of his protected Title VII activity. At the

time of his termination, plaintiff displayed unsatisfactory

performance; violated the Information System security

rules; violated management directives regarding ICCF

library management; and was insubordinate to his direct

supervisor. Section 704(a) of Title VII cannot excuse plain-

tiff’s unacceptable performance, departmental policy vio-

lations and insubordination.

19b

IV.

CONCLUSION

For the above reasons, the Court’s dismissal of plain-

tiff’s age and race claims at the close of the plaintiff’s

evidence at trial are affirmed and the Court hereby dis-

misses plaintiff’s remaining claims of national origin and

retaliation discrimination against defendant with all cost

being taxed against the plaintiff.

ORDERED AND ADJUDGED this the 3rd day of

December, 1990.

signed Britt Singletary

UNITED STATES MAGISTRATE