                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                            _____________________

                                 No. 01-50015
                            _____________________

SHIRLEY RAMIREZ,
                                                     Plaintiff-Appellant,

                                    versus

LANDRY'S SEAFOOD INN & OYSTER BAR; LANDRY'S SEAFOOD
RESTAURANT,

                                                    Defendants-Appellees.

__________________________________________________________________

             Appeal from the United States District Court
            for the Western District of Texas, San Antonio

_________________________________________________________________
                         February 4, 2002
Before JOLLY, SMITH and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Shirley Ramirez, a Hispanic woman, has adduced enough evidence

for a jury to find that her former employer, Landry’s Seafood Inn

(“Landry’s”), violated Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, by discharging her based on her national origin.

We therefore reverse the grant of summary judgment by the district

court in favor of Landry’s and remand for further proceedings.

                                       I

     Ramirez was employed as a waitress at Landry’s from 1990 until

she was discharged in 1995.          In December 1995, two managers at

Landry’s,    Carol   Cree    and   Wendi   Scarborough,   informed   general
manager Patrick Richardson –- based on second-hand reports -- that

Ramirez planned to stage a walkout en masse in the middle of a

shift and had spread an unfounded rumor that a manager had been

fired for calling in sick.       Ramirez denies planning a massive

walkout1 and denies spreading a rumor.       Following a meeting of

Landry’s managers, Richardson terminated Ramirez on December 9,

1995.    A   contemporaneous   report   documenting   the   termination

indicates that Ramirez was fired because:       (1) “[s]he has been

working behind the scenes attempting to lure fellow employees to

leave Landry’s” and (2) “she is spreading rumors about a manager

being fired for calling in sick.”

     Ramirez filed a complaint with the EEOC alleging that she was

discharged based on her national origin in violation of Title VII.

Based on its investigation of Ramirez’s allegations, the EEOC

issued a right to sue letter stating that it found reasonable cause

to believe that Ramirez’s discharge was the result of illegal

discrimination.     In August 1999, Ramirez filed this Title VII

action against Landry’s.   After nine months of discovery, Landry’s

filed a motion for summary judgment.        Accepting the magistrate

judge’s recommendation, the district court granted Landry’s motion

in November 2000.    Ramirez now appeals.

                                  II

     1
       According to Ramirez, several employees were contemplating
applying for jobs at the Hard Rock Café, and Ramirez merely
suggested that they would be more likely to secure positions if
they applied as a team.

                                  2
     The district court granted summary judgment in favor of

Landry’s because “Ramirez has wholly failed to present any evidence

to support an inference that Landry’s stated reasons for her

discharge, consisting of behavior admittedly engaged in by Ramirez,

were pretextual, i.e., that the reasons were false and that the

true reason was discrimination.”        We review de novo the district

court’s grant of summary judgment.          See Blow v. City of San

Antonio, Tex., 236 F.3d 293, 296 (5th Cir. 2001). Summary judgment

is appropriate when the record, viewed in the light most favorable

to the non-movant, reveals no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.          See

id.; Fed. R. Civ. P. 56.

     Landry’s concedes that Ramirez has established a prima facie

case of discriminatory discharge and, as noted above, Landry’s has

articulated two non-discriminatory reasons for discharging Ramirez.

To make a showing of pretext sufficient to submit her case to a

jury, Ramirez “must put forward evidence rebutting each of the

nondiscriminatory reasons the employer articulates.”        Wallace v.

Methodist Hosp. System, 271 F.3d 212, 220 (5th Cir. 2001) (emphasis

added and citations omitted).

     In   response   to   the   first   proffered   rationale   for   her

termination, Ramirez points to evidence that a white employee,

Cynthiann Rutkowski, engaged in similar actions yet was never




                                    3
disciplined in any way.2      Specifically, Ramirez presented sworn

statements from two other Landry’s employees, Ernest Zavala and

Mary Castaneda, that Rutkowski offered to use her connections at

Outback Steakhouse    to   obtain   jobs   for   them   and   for   Ramirez.

Ramirez, Zavala, and Castaneda all assert that Richardson was aware

of Rutkowski’s activities before he fired Ramirez, but Richardson

did not take any action against Rutkowski.

     We have held that “[w]hen a supervisor of one race treats

employees of the same race more favorably than similarly situated

employees of another race under circumstances that are essentially

identical, a presumption of discriminatory intent is raised.”

Barnes v. Yellow Freight Indus., 778 F.2d 1096, 1101 (5th Cir.

1985).   Viewing the evidence in the light most favorable to

Ramirez, we find that Ramirez has raised a material issue of fact

whether a similarly situated white employee was treated more

leniently than she.   Rutkowski’s actions here were in essence the

same as Ramirez’s.    Barnes, 778 F.2d at 1101.          Indeed, actually

offering jobs with a competitor may be a more serious example of

encouraging employees to leave their current jobs than a suggestion

that employees apply for jobs elsewhere as a team.3

     2
       Ramirez also contends that the other employees (Mary
Castaneda and Jaime Rodman) who were involved in the alleged
“conspiracy” were never disciplined, although they engaged in the
same conduct as Ramirez. In view of our ultimate holding, there is
no need to address that contention here.
     3
      Rutkowski acknowledges that she expressed interest in leaving
Landry’s, but she denies that she offered jobs at Outback to

                                    4
     Landry’s argues that Ramirez’s conduct is different from

Rutkowski’s conduct because Ramirez “attempted to facilitate a

coordinated departure of Landry’s employees.”               Scarborough, Cree,

and Richardson assert that they believed that Ramirez was planning

to stage a coordinated walkout during a shift, but the termination

report refers only to an attempt to “lure fellow employees to leave

Landry’s.”        Although    the   trial       court    found   immaterial   any

distinction between luring employees away and staging a coordinated

walkout,     it    is   not    entirely         clear    whether   the    alleged

“coordination” was a significant factor in Ramirez’s termination.

In any event, we are persuaded that Ramirez’s conduct is in essence

the same as Rutkowski’s conduct.

     Landry’s also argues that it terminated Ramirez in part

because    she    had   received    two       previous   disciplinary    reports.

Rutkowski, by contrast, had not received a disciplinary report.

Because company policy allows management to fire any employee who

had received two or more warnings, Landry’s argues that Ramirez and

Rutkowski were not in the same position.                  This argument fails,

however, because Landry’s did not rely on Ramirez’s disciplinary


Landry’s employees. In any event, resolving conflicts in testimony
is the exclusive province of the trier of fact and may not be
decided at the summary judgment stage. See Dibidale, Inc. v. Am.
Bank & Trust Co., 916 F.2d 300, 307-08 (5th Cir. 1990). Similarly,
Landry’s suggests that Richardson may not have been aware of
Rutkowski’s activities and may have legitimately perceived that
Ramirez’s activities were more unusual than they were. As noted
earlier, however, Ramirez, Zavala, and Castaneda assert that
Richardson had been informed of Rutkowksi’s statements.       Here
again, the jury must resolve any conflicts in testimony.

                                          5
history in the December 9, 1995 report documenting her dismissal.

     In sum, we find that Ramirez has raised a genuine issue of

material fact whether Landry’s used the alleged walkout proposal as

a pretext for terminating her based on her national origin.

     Landry’s   second    proffered         nondiscriminatory       reason   for

terminating Ramirez is that she allegedly spread a false rumor that

Lon Letcher, a manager at Landry’s, had been fired for calling in

sick.    Ramirez denies that she spread any such rumor.                Landry’s

argues that, even if Ramirez had not in fact spread the rumor as

alleged, Richardson could legitimately terminate her based on his

“good faith” belief that she had.4

     In response, Ramirez argues that there is no evidence outside

Richardson’s affidavit that anyone actually heard or reported the

alleged rumor to Richardson.     For example, Richardson asserts that

Carol Cree   informed    him   about       the   alleged   rumor,   but   Cree’s

affidavit does not mention it.     Richardson also refused to provide

any details about the alleged rumor when he terminated Ramirez.

According to Ramirez, Landry’s did not even reveal that the manager

in question was Letcher until several years after her termination.

Ramirez also asserts that the alleged rumor would have made little

     4
       See Waggoner v. City of Garland, 987 F.2d 1160, 1165-66 (5th
Cir. 1993) (“[T]he inquiry is limited to whether the employer
believed the allegation in good faith and whether the decision to
discharge the employee was based on that belief.”); see also Jones
v. Flagship Int’l, 793 F.2d 714, 729 (5th Cir. 1987) (holding that
a termination decision is not pretextual if the employer “had
reasonable grounds [for the decision], or in good faith thought it
did”).

                                       6
sense because Letcher was not absent from work and was actually on

duty on the day Ramirez was fired.           Viewing the record in the light

most favorable to Ramirez, we find that Ramirez has created an

issue of fact whether the rumor-spreading allegation was an actual

reason for Ramirez’s termination.

                                       III

      In conclusion, we hold that Ramirez presented sufficient

evidence refuting each of the proffered nondiscriminatory reasons

for her termination to raise a genuine issue of fact whether the

reasons were a pretext for discrimination.                 The district court

therefore   erred     in    granting    summary      judgment      on   Ramirez’s

discrimination claim in favor of Landry’s. Accordingly, we reverse

the   judgment   of   the    district       court   and   remand    for   further

proceedings not inconsistent with this opinion.

                                                      REVERSED and REMANDED.




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