     Case: 12-40958       Document: 00512220099         Page: 1     Date Filed: 04/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 24, 2013

                                     No. 12-40958                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TRACY STEINHAUSER,

                                                  Plaintiff–Appellant,
v.

COMCORP OF TYLER, INCORPORATED, formerly known as KETK–L.P.;
COMMUNICATIONS CORPORATION OF AMERICA,

                                                  Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:11-CV-90


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Tracy Steinhauser (Steinhauser) brought a Title VII claim for retaliatory
discharge against her previous employer, Comcorp of Tyler, Incorporated
(Comcorp). Steinhauser claimed that Comcorp terminated her employment
because of her previous discrimination charge and subsequent lawsuit against
Comcorp. The district court granted summary judgment in favor of Comcorp.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                         No. 12-40958
Steinhauser now appeals, arguing that Comcorp’s stated reason for the
termination was pretextual. Because none of Steinhauser’s points raise genuine
issues of material fact, we affirm.
                                              I
      Steinhauser worked for Comcorp as an account executive (AE) from
approximately 1997 until her employment was terminated in 2010. Prior to her
termination, in 2009, Steinhauser had filed suit against Comcorp pursuant to
Title VII of the Civil Rights Act of 1964,1 alleging gender discrimination based
on hostile work environment and disparate treatment. Several months after her
case was dismissed, she and fellow AE John Hazelwood (Hazelwood) were
dismissed. Steinhauser and the two other AEs at the Nacogdoches office had
been paid on a commission-only basis.              Their supervisor, Chuck Phillips
(Phillips), had been paid a base salary plus a commission that was based on the
office’s overall performance. Phillips’s role was to assist the AEs with sales calls,
client relations, new business development, selling techniques, and deal
negotiations. After Steinhauser and Hazelwood were terminated, Phillips was
demoted to AE, thereby eliminating his salary, and he joined ranks with the one
remaining AE in Nacogdoches.
      At the time of their termination, Steinhauser and Hazelwood were told
that the reason for this employment action was to reduce Comcorp’s costs but
that they both were eligible for rehire. Steinhauser asserts that though she
inquired about other opportunities with Comcorp, she was told there were no
positions available. Approximately two weeks later, she allegedly saw television
advertisements for Comcorp seeking AE applicants. These advertisements did
not mention a specific sales office, and Steinhauser did not apply for any
advertised position. Roughly nine months later, Comcorp hired one AE for the


      1
          42 U.S.C. §§ 2000e-1 to -17.

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                                         No. 12-40958
Tyler office and created a new position in the Longview office. Five months after
that, two more AEs were hired for the Tyler office. No AE has been hired at the
Nacogdoches office since Steinhauser and Hazelwood were terminated.
       Steinhauser brought the instant case, alleging retaliation for protected
activity under Title VII and asserting that Comcorp terminated her employment
for having previously charged the company with gender discrimination. The
district court granted Comcorp’s motion for summary judgment, and this appeal
followed.
                                                II
       “We review the grant of summary judgment de novo, applying the same
standard as the district court.”2 Summary judgment is appropriate when “there
is no genuine issue of material fact and the movant is entitled to judgment as a
matter of law.”3 A genuine issue of material fact exists when “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”4
                                               III
       When determining whether summary judgment was the proper means of
adjudicating a retaliation claim, we apply the burden-shifting framework of
McDonnell Douglas v. Green.5 Under this framework, the plaintiff carries the
initial burden of establishing a prima facie retaliation claim.6 The burden then
“shifts to the defendant to articulate a legitimate, nondiscriminatory reason for



       2
           Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993).
       3
       Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 257 (5th Cir. 2009) (citing LaPierre v.
Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir. 1996)).
       4
           Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       5
        See Rios v. Rossotti, 252 F.3d 375, 378, 380 (5th Cir. 2001) (citing McDonnell Douglas
v. Green, 411 U.S. 792, 802-04 (1973)).
       6
           Id. at 380.

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                                       No. 12-40958
the adverse employment action.”7 The plaintiff must then present evidence
establishing a genuine issue of material fact that the reason is pretextual. To
do so, the plaintiff must demonstrate that “the adverse employment action would
not have occurred ‘but for’ the protected activity.”8 Thus, even if retaliation was
a motivating factor, “no liability for unlawful retaliation arises if the employee
would have been terminated even in the absence of the protected conduct.”9
       On appeal, Steinhauser does not dispute that Comcorp offered a
legitimate,      nondiscriminatory       reason—cutting        costs—for      the    adverse
employment action. She challenges only the district court’s conclusion that she
had not raised genuine issues of material fact that Comcorp’s cost-cutting
explanation was pretextual.
       Steinhauser first asserts that Comcorp’s stated concern for cutting costs
was pretext for retaliation because terminating her saved the company no
money. She alleges that she and Hazelwood were paid strictly on commission,
and they cost the company no overhead because they purchased their own
insurance, client lunches, and cell phones, and worked largely from home.
Comcorp, however, produced uncontroverted evidence that it saved the expense
of reimbursing both Steinhauser and Hazelwood $100 a month for gas and $500
per pay period for health insurance. Accordingly, the commission-based nature
of an AE’s salary is immaterial to Comcorp’s stated concern for cutting costs.
       In her second and third points, Steinhauser argues that had Comcorp truly
been concerned about cutting costs, she should have been retained over Phillips.


       7
           Id.
       8
         Id.; see also Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996) (“We must thus
determine whether reasonable and fair-minded persons could conclude from the summary
judgment evidence that [the defendant] would not have terminated [the plaintiffs] ‘but for’
their activities protected by Title VII.”).
       9
        Long, 88 F.3d at 305 n.4 (citing Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th
Cir. 1984)).

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                                       No. 12-40958
Not only did she sell more than he did, but she had more seniority as well.
Comcorp, however, showed that there was value in retaining Phillips over
Steinhauser because he had many business contacts in the area that were useful
in developing and maintaining customer relationships.                     Not only was he
originally hired away from a competitor, Phillips had been serving in a
managerial role up to the time of the layoffs. The fact that Steinhauser had been
selling more than Phillips and had more seniority in the company does not mean
that Steinhauser was more qualified than Phillips, who had industry contacts
and managerial experience.10 Moreover, the elimination of his managerial role
permitted Comcorp to avoid paying a salary, which further supports the
company’s stated purpose of cutting costs.
       Steinhauser next asserts that even if Comcorp’s move to a smaller office
cut its costs, this move did not require any layoffs. AEs, she argues, spent little
time in the office since they were expected to be out selling advertising time for
the majority of the day. She further contends that AEs could have worked out
of cubicles in any case, so the smaller office did not require a reduction in
workforce. But Comcorp did not directly tie the layoffs to the move to a smaller
office. It instead explained that both decisions were part of a larger plan to
restructure the Nacogdoches office in order to cut costs, and the move saved the
company $2,000 in rental fees each month.11 The move to a smaller office is




       10
          Cf. Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (noting that to
establish pretext by showing that the plaintiff was clearly better qualified than a competitor
selected by the employer, the plaintiff’s “qualifications must ‘leap from the record and cry out
to all who would listen that [s]he was vastly—or even clearly—more qualified for the subject
job’” (quoting Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993))).
       11
         Though the district court stated that this move saved Comcorp $500 each month, a
review of the deposition testimony reveals that the new rent was $500 per month, which
represented a savings of approximately $2,000 per month.

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                                       No. 12-40958
evidence that Comcorp was concerned about costs; it was not Comcorp’s stated
reason for terminating Steinhauser.12
        Steinhauser’s fifth point is that despite Comcorp’s stated need for
cutbacks,     the   company       continued       to   advertise   for   additional      sales
representatives. She argues this demonstrates pretext because (1) she had
allegedly asked about other opportunities with the company when she was
dismissed, (2) four additional AEs were subsequently hired, and (3) the company
had a practice of moving employees to other locations but did not offer one of the
new positions to her. As to Steinhauser’s first assertion, none of the four new
AEs hired after the layoffs were placed in the Nacogdoches office.                      Thus,
Steinhauser has failed to raise a genuine issue of material fact that Comcorp’s
restructuring of the Nacogdoches office to cut costs was pretextual.
       Furthermore, other than her mere assertion, Steinhauser provides no
evidence that Comcorp had a practice of transferring AEs rather than
terminating them. Her one example of a production staff employee being moved
from Nacogdoches to another office in mid-2009 is unpersuasive. That employee
was not an AE, the transfer was not an alternative to termination, and he was
transferred for reasons that had nothing to do with the Nacogdoches
reorganization in 2011. As the district court correctly noted, Steinhauser did not
apply for any open position, and the “[f]ailure to specifically call [] Steinhauser
and beg her to apply for one of these positions is not evidence of retaliation.”
       Steinhauser’s sixth and final assertion concerns the timing of Comcorp’s
decision to lay her off. She cites to this court’s decision in Shackelford v. Deloitte




       12
          See Jackson v. Watkins, 619 F.3d 463, 468 n.5 (5th Cir. 2010) (“[I]t is not our place
to second-guess the business decisions of an employer, so long as those decisions are not the
result of discrimination.” (citing Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir.
1997))).

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                                            No. 12-40958
& Touch, LLP,13 which stated that when there is a short time period between an
employee’s protected activity and an adverse employment action, the employer
must offer a “legitimate, nondiscriminatory reason that explains both the
adverse action and the timing.”14 Though Steinhauser contends that Comcorp
made “no attempt to explain the close timing,” the company did in fact provide
an explanation in the district court. Analysis of the company’s budget first
began in October to November of 2009 and was concluded in January 2010.
Several months were then spent discussing and compiling the information, after
which suggestions concerning the restructuring of the Nacogdoches office were
sent out for approval. Steinhauser and Hazelwood were then terminated in
April 2010, which was two months after Steinhauser’s discrimination suit ended.
Given that Comcorp provided a legitimate, nondiscriminatory explanation of the
timing,15 Steinhauser had the burden to “offer some evidence from which the
jury [could] infer that retaliation was the real motive.”16 However, she provided
the district court with nothing more than temporal proximity and speculation
to establish retaliation.17
       Because none of Steinhauser’s six points demonstrate that the adverse
employment action would not have occurred but for her engagement in protected
activity, she fails to rebut Comcorp’s legitimate, nondiscriminatory reason for




       13
            190 F.3d 398 (5th Cir. 1999).
       14
         Shackelford, 190 F.3d at 408 (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180,
1188 (5th Cir. 1997)) (internal quotation marks omitted).
       15
            See Armstrong v. City of Dallas, 997 F.2d 62, 65 n.5 (5th Cir. 1993).
       16
            Swanson, 110 F.3d at 1188.
       17
           See Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003)
(“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.”).

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                                 No. 12-40958
terminating her employment. Accordingly, the district court did not err in
granting summary judgment.
                             *        *         *
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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