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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1060

## Text

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
Counterstatement of the Question Presented ....... i
See of Combes ... . .vivdlescks eee ii
Tebte of Auibortles ..... 5.00600 iii
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ctatesnent Of The Caee... .... sie ee 2
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2143%3A2. Public record. Not legal advice.