Case Information
*1 Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
In this nаtional origin discrimination case, Plaintiff- Appellant Amador Nieto appeals the district court's grant of summary judgment in favor of his former employer, L & H Packing Company and Surlean Meat Company (collectively "Surlean"). Because the competent summary judgment evidence before the district court did not raise a material fact issue that national origin was a motivating reason for Nieto's termination, the judgment of the district court is AFFIRMED.
I. Standard of Review
This court reviews the district court's grant of summary
judgment de novo. See, e.g., Ray v. Tandem Computers, Inc., 63
F.3d 429, 433 (5th Cir.1995). "Summary judgment is proper when no
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. In determining whether summary
*2
judgment was proper, all fact questions are viewed in the light
most favorable to the non-movant." Id. (quoting Moore v. Eli Lilly
Cо.,
II. Background
In August 1992, Surlean was in the market to hire some supervisory personnel. Larry Lewis, Nieto's supervisor at a previous job and Surlean's night plant superintendent, suggested that Surlean's personnel department contact Nieto about one of its openings. Lewis discussed thе possibility of hiring Nieto with Surlean's personnel director, and pursuant to Lewis's recommendation, Nieto was promptly hired to fill the position of night production supervisor.
During the course of his employment, Nieto received two written warning notices for his inadequаte performance, one of which resulted in a three-day suspension. [1] In addition, during Nieto's shift on December 7, 1993, a light bulb broke, sending slivers of glass into 300-500 pounds of meat that was being processed. Nieto failed to follow direct instructions to label the container of contaminated meat "inedible." [2] Because inadequate *3 steps were taken to isolate the adulterated meat, this meat was mixed with 20,000 pounds of good meat, which had to be destroyed at a cost of approximately $20,000 to Surlean.
In light of the December 7 incident and Nieto's overall employment record, Lewis recommended that Nieto be terminated. [3] Because Lewis was not on duty at the time, Cliff Miller conducted Nieto's exit interview. Miller told Nieto only that he was being terminated because his failure to follow instructions cost Surleаn $20,000.
Jim Caillouet, Surlean's quality control supervisor, was also subjected to discipline arising out of the December 7 incident. Although Caillouet properly instructed a quality control employee to put a "hold tag" on the contaminated meat, he did not chеck to make sure that his subordinate properly tagged the meat. [4] Caillouet was issued a first notice written warning for this incident, his first performance deficiency of any kind.
On November 16, 1994, Nieto filed the instant action in federal district court alleging that he was terminated bеcause of his national origin in violation of Title VII of the Civil Rights *4 Act of 1964, as amended. 42 U.S.C. § 2000e et seq. On July 7, 1995, Surlean filed its motion for summary judgment, which was dismissed without prejudice in order to allow the completion of discovery and continuation of mediation. On October 24, 1995, Surlean re-urged its motion for summary judgment and filed a supplemental appendix based upon additional discovery. On March 28, 1996, the district court granted Surlean's motion for summary judgment and entered an order dismissing Nieto's claims.
On April 8, 1996, Nieto filed a motion for reconsideration of thе district court's grant of summary judgment in favor of Surlean. On April 17, 1996, Surlean moved to strike an untimely affidavit filed by Nieto and moved for an award of sanctions against Nieto and his counsel. The district court entered an order denying Nieto's motion for reconsideration, striking Nieto's untimely affidavit, and denying Surlean's request for sanctions. Nieto timely filed notice of appeal from the district court's failure to reconsider its decision to grant summary judgment in favor of Surlean; Surlean timely filed notice of appeal regarding the district court's failure to assess sanctions and attorney's fees against Nieto and his counsel. This appeal followed.
III. Discussion
Nieto, a Hispanic male, contends that he was unlawfully terminated on the basis of national origin in violation of Title VII. Nieto argues that Surlean's discriminatory intеnt is evidenced by the fact that he was terminated for his role in the December 7 incident, while Jim Caillouet, a similarly-situated Anglo, was *5 treated in a more lenient fashion. Because the competent summary judgment evidence viewed in the light most favorable to Nietо does not support his contention that he and Caillouet were similarly-situated employees and because the evidence does not otherwise create an issue of fact that Nieto's termination was motivated by his national origin, the district court properly granted summary judgment in favor of Surlean. [5]
The summary judgment evidence does not support Nieto's contention that he and Caillouet were similarly-situated employees. First, it is undisputed that two different supervisory employees told Nieto to put an "inedible" lаbel on the contaminated meat and that he did not do so. In contrast, it is undisputed that Caillouet did not disobey a direct instruction from his supervisor. Moreover, while Nieto had a prior disciplinary record, which *6 included at least two written warnings and a three-day suspеnsion, it is undisputed that Caillouet had no prior disciplinary record. Under these circumstances, Surlean's decisions to provide Caillouet with a written warning and to terminate Nieto do not raise a material question of fact that Nieto's termination was motivated by discriminatory animus.
Not only did Nieto fail to provide evidence that would allow
a fact finder to infer that Surlean's decision was motivated by his
national origin, but the record evidence provides substantial
support to the contrary. For starters, eighty-eight percent of
Surlean's work force is comprised of minorities.
[6]
Second, it is
undisputed that the employee who was promoted to replace Nieto as
night production supervisor was also Hispanic. While not outcome
determinative,
[7]
this fact is certainly material to the question of
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discriminatory intent. See, e.g., Cumpiano v. Banco Santander
Puerto Rico, 902 F.2d 148, 155 (1st Cir.1990). Moreover, the
supervisor who recommended that Surlean hire Nieto was the same
supervisory employee who issued the authoritative recommendation to
terminate Nieto's employment. This court has previously held that
this situation gives rise to an inference of non-discrimination
because it is unlikely that a decision maker "would hire workers
from a group one dislikes (thereby incurring the psychological
costs of associating with them), only to fire them onсe they are on
the job." Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th
Cir.1996) (quoting Proud v. Stone,
6 (3rd Cir.1995) (agreeing with the position expressed by the Equal
Employment Opportunity Commission as amicus curie: "[W]here, as in
Proud, the hirer and firer are the same and the discharge occurred
soon after the plaintiff was hired, the defendant may оf course
argue to the factfinder that it should not find discrimination.
But this is simply evidence like any other and should not be
*8
claimed that he believed that Surlean was "out to get him" because
he was successful at "what he was doing." Even if this accusation
is true, it has long been thе law in this circuit that "Title VII
... do[es] not protect against unfair business decisions[,] only
against decisions motivated by unlawful animus." Turner v. Texas
Instruments, Inc.,
We have also considered Nieto's other points of error and have determinеd that they are without merit. The judgment of the district court is, accordingly, AFFIRMED.
accorded any presumptive value."). Surlean cross-appeals and argues that the district court
abused its discretion in denying Surlean's request for attorney's fees and sanctions based on thе frivolity of Nieto's claim. We conclude that the district court did not abuse its discretion in this regard and note that while Nieto presented relatively weak evidence of discrimination, the law supporting a number of Surlean's arguments is both in flux and not as unquestionably in its favor аs Surlean suggests. See notes 5, 7-8, and accompanying text. For the same reasons, we decline to exercise our discretion to sanction Nieto for prosecuting a frivolous appeal.
Notes
[1] Surlean claims that Nieto's file reflects four performance deficiencies that resulted in written warning notices. Nieto, however, contends that two of these alleged incidents did not occur. Viewing the evidence in the light most favorable to Nieto, we will disregard the two disputed warnings for purposes of reviewing the propriety of summary judgment in Surlean's favor.
[2] It is undisputed that both Larry Lewis and Jim Caillouet, Surlean's quality control supervisor, told Nieto to label the contaminated meat as inedible and that Nieto did not do so.
[3] Surlean claims that Lewis's recommendation was subject only tо routine review and approval by its personnel department. Furthermore, Lewis testified by affidavit that he considered whether a suspension or other disciplinary action would have been appropriate under the circumstances. Based upоn Nieto's entire employment record, including prior discipline, however, Lewis concluded that Nieto should be terminated. Nieto has offered nothing to contradict this evidence.
[4] It appears from the summary judgment record that the quality control emplоyee who disregarded Caillouet's instructions was also terminated.
[5] Prior case law has not consistently applied Title VII's
burden-shifting framework to the question of whether a
similarly-situated employee outside the plaintiff's protected class
was treated morе favorably. The Supreme Court has explained that
this inquiry is especially relevant to a showing that the
employer's proffered legitimate, non-discriminatory reason for its
decision was pretext for discrimination. See McDonnell Douglas
Corp. v. Green,
[6] See Furnco Constr. Corp. v. Waters,
[7] The district court held that Nieto failed to establish a
prima facie case of discrimination because the plaintiff's position
was immediately filled by a member of the same protected class.
The Supreme Court "has not directly addressed the question whether
the personal characteristics of someone chosen to replace a Title
VII plaintiff are material...." St. Mary's Honor Ctr. v. Hicks,