     Case: 15-10298      Document: 00513290140         Page: 1    Date Filed: 12/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10298                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         December 1, 2015
MARTIN QUINTANA,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

FUJIFILM NORTH AMERICA CORPORATION,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-2505


Before STEWART, Chief Judge, OWEN, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Martin Quintana (“Quintana”) appeals the district
court’s grant of a motion for summary judgment in favor of Fujifilm North
America Corporation (“FNAC”).            Quintana challenges the district court’s
dismissal of his claims of (1) age and race discrimination, (2) retaliation, and
(3) hostile work environment in violation of the Texas Commission on Human
Rights Act (“TCHRA”), Texas Labor Code § 21.001 et seq. Specifically, at issue


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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on appeal is whether the district court properly granted summary judgment in
favor of FNAC on each of Quintana’s aforementioned claims. We AFFIRM.
                                     I.
   A. Quintana’s Employment with FNAC
      Viewing the facts in the light most favorable to Quintana, on or about
January 23, 2006, FNAC hired Quintana, a 48-year-old Hispanic male, to work
in its Graphics Systems Division as a Digital Solutions Specialist, Sales
(“DSS”). FNAC’s Graphic Systems Division (“FNAC-GSD”) supplies graphic
imaging equipment and related products and services. The Digital Solutions
Group is responsible for selling imaging solutions and Xerox products to FNAC
customers. Quintana was responsible for the sale of digital press equipment,
platesetters, workflow, and related products and services, as well as expanding
FNAC-GSD’s business base and cross-selling of products and services to
existing FNAC-GSD customers.
      While employed with FNAC-GSD, Quintana was supervised first by Phil
Kane (“Kane”), who was the Vice President of Digital Sales. In 2011, Quintana
began to report to Ron Peterson (“Peterson”), the National Director of Sales
Solutions. Peterson reported to John Solwold (“Solwold”), the Vice President
of Field Sales. Solwold in turn reported to Todd Zimmerman (“Zimmerman”),
Vice President & General Manager. Peterson, Solwold and Zimmerman are
all Caucasian males.
      Throughout Quintana’s employment, he experienced success as a top
equipment sales representative and performed in the top four or five in sales
each year since his hiring in 2006. He consistently received “Exceptional
Performance” and “Successful Performance” evaluation ratings.
   B. Quintana’s May 2, 2012 Conversation with Peterson
      On May 2, 2012, while participating in sales calls in Austin, Texas,
Quintana engaged in conversation with Peterson about the diversity of the
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FNAC team. Peterson stated that Quintana’s sales group looked like a bunch
of “graying old [white] men.” Peterson subsequently discussed the lack of
diversity with FNAC’s Human Resources Department (“Department”), but
received no response or showing of concern from the Department. Quintana,
however, did not directly raise his concerns with the Department following his
conversation with Peterson, or at any point during his employment with
FNAC.
   C. Quintana’s Allegations of Harassment
      Quintana alleges that he experienced conduct that amounted to
harassment and a hostile work environment. Specifically, he alleges that (1)
he was the subject of a territory realignment which resulted in an inferior sales
territory, (2) FNAC initially failed to pay Quintana’s commissions sales, (3)
Peterson and Solwold would not participate in sales calls with Quintana, (4)
Quintana received a threatening letter form Solwold regarding protocol for
sales of equipment, and (5) Solwold commented on Quintana’s 2011
performance evaluation in a threatening manner, stating that Q did not agree
with Quintana receiving a high rating on his evaluation.
      1. Sales Territory Realignment
      Prior to Quintana’s termination, Kane approached him about becoming
a specialist to sell FNAC’s new J2 press equipment—a larger and faster
product than what Quintana was previously selling—to which Quintana
expressed an interest in being involved. However, because the press would not
be immediately available for sale, Kane requested that Quintana serve as a
sales person for a new sales territory for a temporary 90-day period. Quintana
relinquished half of his sales territory to Robert Nordman (“Nordman”),




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another FNAC-GSD employee, for this period. 1 After the 90-day period, the
sales territory was not restored. According to Quintana, the sales territory he
was given was inferior to that of Nordman.                This realignment became
permanent for all sales associates.
      The territory realignment occurred while Kane, and not Peterson, served
as Quintana’s supervisor. Quintana, however, did not allege that Kane holds
any discriminatory animus toward him.              In fact, after Kane approached
Quintana about selling the new J2 press, Quintana expressed that he did not
believe that Kane’s decision was discriminatory.
      2. Earned Commissions
      FNAC did not initially pay commissions to Quintana for two of
Quintana’s customer sales—Print Place and Nationwide. As a DSS, Quintana
received commissions as a part of his employment.                      Under FNAC’s
commissions program, commissions are earned upon the installation of the
equipment for the customer. Quintana serviced both the Print Place and
Nationwide accounts prior to the realignment, but the equipment from those
sales were installed in Nordman’s territory following the change. Although
FNAC paid Quintana the entire commission for Print Place and fifty percent
of the Nationwide commission, FNAC testified that the installation of the
equipment occurred outside of Quintana’s territory, making him ineligible to
receive the commissions.
      3. The Absence of Sales Calls with Peterson and Solwold
      Neither Peterson nor Solwold participated in any sales calls with
Quintana, who continued to boast the highest Digital Press sales in the




      1 Nordman is three years younger than Quintana. He is a Caucasian male and the
only other employee who held the position of DSS reporting to Peterson in the Dallas area.
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company and who maintained an exceptional sales record. Both Peterson and
Solwold engaged in calls with Nordman.
      4. Solwold’s Alleged Harassment of Quintana
      While on a conference call in early 2011, Quintana voiced his objection
to a new compensation plan which Solwold announced to Quintana and the
roughly 20 men on Peterson’s sales team. Following the telephone call, Solwold
sent a memo to Quintana reinforcing the protocol which account managers
must follow. Because FNAC develops and sells numerous equipment services,
and because FNAC seeks to develop additional sales opportunities separate
and apart from the initial equipment sales made by a DSS, Solwold informed
Quintana that he must communicate with the rest of his team prior to
finalizing a sale. If he does not, a sale before speaking with the rest of his team
would preclude the team from capitalizing on additional opportunities to work
with the customer on the sale of additional products. In a second incident and
after Quintana received the highest rating on his 2011 performance
evaluation, Solwold made a notation in which he stated that he did not agree
with such a high rating.
   D. FNAC’s Reduction in Force Determination
      In June 2012, just under six and a half years after Quintana joined
FNAC, FNAC engaged in a nationwide reduction-in-force (“RIF”).               In a
memorandum to all GSD employees dated June 6, 2012, FNAC gave notice to
company employees that due to the economic crisis that continued to have a
negative impact on FNAC’s overall business, the moderate improvement from
the Graphics System Division, the system in which Quintana worked, was not
yet at a sustainable level. Accordingly, the RIF resulted in the termination of
nine employees across the country—one of them being Quintana.
      In FNAC’s memorandum, FNAC management did not provide the
criteria within which the RIF would be executed. However, as stated in a
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                                 No. 15-10298
declaration from Michael Prutting, Vice President of Human Resources for
FNAC, the employees selected for the RIF were chosen based on “their location,
business function, duplicative or redundant job position and tenure.”
Zimmerman and Solwold made the decision as to which sales employees would
be affected by the RIF.
      At the time of the RIF, Quintana and roughly nineteen other employees
were supervised by Peterson. All were male but the two minorities in the group
were Quintana and Joe Galindo, a Hispanic male that worked in a separate
FNAC-GSD market (Los Angeles). Quintana and Nordman were the only two
employees in the Dallas area who worked as DSS representatives and reported
to Peterson. Of the two, Quintana had a tenure with FNAC-GSD of 6.4 years,
Nordman of twenty years.        FNAC alleges that despite Quintana’s high
performance, Dallas and Los Angeles were two of the lowest performing
regions. FNAC reasoned that Quintana was terminated from the DSS position
in the Dallas area because of his tenure of 6.4 years. In the Los Angeles area,
the DSS selected for the RIF similarly had the shortest tenure.
   E. Procedural History
      On July 26, 2012, Quintana filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) and the TCHRA alleging age, race and
national original discrimination. Quintana also alleges that he experienced
retaliation and harassment and worked in a hostile work environment. The
EEOC issue a Notice-of-Right-to-Sue and Quintana filed suit on May 22, 2013
in state court. Following timely removal to federal court, FNAC filed a motion
for summary judgment as to each of Quintana’s claims. FNAC argued that
Quintana failed to establish a prima facie case of discrimination or retaliation.
They contended that even if the district court made a finding that Quintana
did in fact establish a prima facie case, he failed to raise a genuine issue of
material fact that FNAC’s legitimate, nondiscriminatory reasons for
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                                  No. 15-10298
terminating Quintana were mere pretext or retaliatory. Quintana opposed the
motion, reiterating his original claims, and arguing that FNAC subjected
Quintana to a hostile work environment until he was terminated based on his
race, national origin, and age, and in retaliation for complaining of
discrimination and harassment to Quintana’s direct supervisor. On March 30,
2015, the district court granted FNAC’s motion for summary judgment and
dismissed all claims with prejudice.
                                        II.
      “We review a district court’s grant of summary judgment de novo.” James
v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 68 (5th Cir. 2014). Summary
judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits. . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex v. Catrett, 477
U.S. 317, 323–25 (1986). A dispute regarding a material fact is “genuine” if
the evidence is such that a reasonable jury could return a verdict in favor of
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 284
(1986). When ruling on a motion for summary judgment, the court is required
to view all facts and inferences in the light most favorable to the nonmoving
party and resolve all disputed facts in favor of the nonmoving party.
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
      “[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp., 477 U.S. at 323. When the record, taken as a whole, could not lead a
rational trier of fact to find for the nonmoving party, there is “no genuine
[dispute] for trial.” Matsushita, 475 U.S. at 587 (citation omitted). Mere
conclusory allegations are not competent summary judgment evidence and


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cannot defeat a summary judgment motion. Eason v. Thaler, 73 F.3d 1322,
1325 (5th Cir. 1996).
         Once the moving party has made the initial showing that there is no
evidence to support the nonmoving party’s case, the party opposing the motion
must come forward with competent summary judgment evidence of the
existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986). To satisfy this burden, they are
required to identify specific evidence in the record, and to articulate the
“precise manner” in which that evidence supported their claim. Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). If disputed facts “that might affect
the outcome of the suit under the governing law” exist, entry of summary
judgment may be precluded.         Anderson, 477 U.S. at 248. However if the
nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof, the
moving party is entitled to judgment as a matter of law and summary
judgment must be granted. Celotex, 477 U.S. at 322–23. We may affirm a
summary judgment on grounds other than those relied upon by the district
court when there is an adequate and independent basis for that disposition.
Morales v. Dep’t of Army, 947 F.2d 766, 768 (5th Cir. 1991).
         In this case, the district court rendered summary judgment in favor of
the Defendants on all issues. On appeal, we are bound by the same standard
that controls the district court. Id. at 768.
                                        III.
         After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable law, and the district court’s judgment and
reasoning, we AFFIRM the district court’s judgment and adopt its analysis in
full.


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