E. Dexter Hughes and Sharmell W. Relerford v. Ortho Pharmaceutical Corporation and Johnson & Johnson, Inc.E. Dexter Hughes and Sharmell W. Relerford v. Ortho Pharmaceutical Corporation and Johnson & Johnson, Inc.
E. Dеxter Hughes and Sharmell W. Re-lerford (collectively “plaintiffs”) appeal from the district court’s
3
order granting defendants’ motion for summary judgment on their race discrimination claims under the Civil Rights Act of 1866 (“Section 1981”),
I.
Defendant Ortho Pharmaceutiсal Corporation (“Ortho”), a subsidiary of defendant Johnson & Johnson, Inc., hired Relerford and Hughes in 1983 and 1993, respectively. Relerford and Hughes are African American. During their employment with Or-tho, they were the only African American sales reрresentatives in the company’s St. Louis, Missouri division. At all times relevant to their claims, Kathleen Brown Car-lyon was their district manager and direct supervisor. Carlyon interviewed and hired Hughes, and she terminated both plaintiffs on December 7, 1994, as part of a company-wide reduction-in-force (“RIF”).
During the first quarter of 1994, Hughes’ sales were below the national average in every category. In July 1994, he received a letter stating that he was ineligible to participate in Johnson & Johnson’s stock compensation plan because of his inadequate sales performance. Carlyon placed Hughes on formal probation in August, after determining that his sales were below the national average in all product categories.
Hughes points out that he was recognized at a district sales meeting for his strong sales of an Ortho product (Terazol) during the first part of 1994. He also contends that Carlyon’s realignment of his sales territory in Junе and July 1994 took from him over eighty high potential physician customers. Defendants respond, however, that Hughes’ sales territory was realigned so that he could concentrate his efforts on a smaller number of customers. Also, it apрears undisputed that sales results were measured by market share based on the customers in a given territory and not by gross sales per representative.
At the end of the third quarter of 1994, Hughes ranked thirty-seventh out of 520 Ortho sales representatives in a company-wide contest known as the “Top Achievers Contest.” The contest ranked sales representatives on a weighted computation of market share and market increase, rather than overаll sales performance. Forty percent of the weight attributable to market share increase was for a single product. In November, Carlyon, who had no knowledge of the contest until after she terminated Hughes, extended Hughes’ probation because he remained below the national average in all sales categories except one. He was still on probation when Carlyon terminated him on December 7.
Relerford received stоck options at the end of 1993 for her sales performance with Ortho. After the first quarter of 1994, however, Ortho informed her that her market share was disappointing. Carlyon placed Relerford on formal warning status in August 1994, after two prior writtеn warnings regarding market share performance and problems with selling skills. After the second quarter, Relerford ranked near the bottom of Ortho’s sales representatives with regard to market share for oral contraceptives, a major product group. In October, Carlyon repeated the formal warning and told Reler-ford that if she failed to improve, she would be placed on probationary status. *704 Relerford’s sales figures with regard to oral contraceptives did show some improvement in the third quarter, but she remained on formal warning status until her termination on December 7.
Plaintiffs’ terminations were part of a company-wide RIF that resulted in four terminations in the St. Louis division. The other twо terminated representatives are Caucasian. All four had received formal warnings or were on probation at the time. Relerford testified that Carlyon told her at the time of her termination that she was being discharged due to overlapping sales territories. In response to Relerford’s subsequent request for a service letter, Carlyon wrote “You were discharged from employment with [Ortho] due to a realignment and reduction of sales territories.” Cаrlyon went on to state that the “decision regarding which sales representatives to separate from employment was based primarily upon performance. Due to your poor past performance, you were one of the individuals discharged in the process.” In her deposition, Carlyon testified that Relerford was terminated because she was “either on probation or had received a written warning.”
In January 1995, Carlyon hired an African American as a sales representative, who assumed at .least part of Relerford’s territory. Carlyon initially had recruited this new representative in August 1994. At that time, however, she had informed the recruit that there were no openings and that Ortho was interviewing to keep a pool of applicants available in case openings emerged. Carlyon testified that she did not become aware that Ortho was planning to downsize until December 1994.
Plaintiffs filed suit in district сourt alleging race discrimination in violation of
II.
We review the district court’s grant of defendants’ motion for summary judgment
de novo. See, e.g., Roxas
v.
Presentation College,
The order and allocation of proof in cases in which there is no direct evidence of discrimination is governed by the three-step burden shifting anаlysis set forth in
McDonnell Douglas Corp. v. Green,
Here, the district court concluded that Hughes and Relerford had failed to meet their initial burden оf establishing a
*705
prima facie case of discrimination. There is no dispute that this is a RIF case. To establish a prima facie case of discrimination in the RIF context under
While the district court assumed that Hughes and Relerford had satisfied the first three elements of their prima facie case, it found that they failed to satisfy the fourth element because they produced no additional evidence that race played a role in Carlyon’s deсision to terminate them. We agree with the district court’s conclusion for the reasons set forth in its opinion.
Defendants offered uncontroverted evidence that all four sales representatives Ortho terminated as part of the RIF were on formal warning or probationary status. Although Hughes offered evidence that his sales performance improved or was strong with regard to certain products, he has produced no evidence that his overall sales performance warranted his removal from probation. On the contrary, defendants’ evidence that his overall performance was problematic remains uncontroverted. Furthermore, there is no evidence that Carlyon knew about his standing in the “Top Achiever Contest,” or that, even if she had known, this would have altered her decision, which was based on different performance criteria. Likewise, while Re-lerford showed some improvement in her sales of oral contraceptives, she has offered no evidence to refute defendants’ contention that her overall performance was deficient. Plaintiffs therefore have not raised a faсt dispute with regard to whether their performance justified their remaining on formal warning or probationary status, and supported their selection for the RIF.
The district court also correctly concluded, in the particular cirсumstances of this case, that the fact that plaintiffs were the only African American sales representatives in the district at the time they were terminated cannot serve as additional evidence that race was a fаctor in their termination. Ortho treated them the same as the two Caucasian salespersons that were on formal warning or probationary status, and they have offered no evidence of other, similarly situated salespеrsons who were treated better or differently. Moreover, there is no dispute that Carlyon hired another African American sales representative shortly after she discharged Hughes and Relerford. Plaintiffs have offered no evidence to support their theory that Carlyon hired this employee to cover up her discriminatory animus, and such a scheme is implausible, particularly because Carlyon had taken initial steps to recruit the employee prior to the RIF. Thus, plaintiffs have not offered additional evidence that race was a factor in their termination and therefore have not established a prima facie case of discrimination.
Moreover, even if plaintiffs could establish a prima facie case of discrimination, the district court correctly concluded that they have not offered evidence that would support an inference that defendants’ proffered reason for terminating them — as part of a company-wide RIF — was pretex-tual. Although they argue that Carlyon used the RIF as an opportunity to discharge them, plaintiffs have come forward with no evidence that the RIF itself was pretextual. Their contention that Car-lyon’s allegedly changing explanation for terminating Relerford creates a fact dispute with regard to pretext is unpersuasive. The Court finds Carlyon’s different articulations of why she terminated Reler-ford are not in conflict. All of her explanations are consistent with her written statement that after Ortho had decided to reduce its sales territories, she used performance criteria — formal warning or probationary status — tо determine who should *706 be terminated. Likewise, as set forth above, plaintiffs have not raised a genuine fact dispute as to whether Carlyon legitimately placed them on, and then did not remove them from, formal notice or probationary status. Accordingly, plaintiffs have failed to meet their burden of creating a genuine issue of material fact on the question of pretext and on 'the ultimate issue of whether racial animus motivated their termination.
III.
For the reasons enumerated above, we affirm the judgment of the district court.
Notes
. The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.