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

                                                 FILED
                                                                           March 30, 2009

                                       No. 08-20216                    Charles R. Fulbruge III
                                                                               Clerk

DARRELL B TAYLOR

                                                   Plaintiff-Appellant
v.

PEERLESS INDUSTRIES INC

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:04-CV-2964


Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Darrell B. Taylor, a black male, brought this suit
against Defendant-Appellee Peerless Industries, Inc., a manufacturer of metal
support brackets for audio and visual devices, alleging that Peerless fired him
as a district sales representative because of his race in violation of both 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. The district court
granted summary judgment in favor of Peerless, but this court vacated that
judgment and remanded the suit to the district court on the grounds that the


       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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district court erred by failing to apply the “modified” McDonnell Douglas test
used in this circuit. On remand, the district court again granted summary
judgment in favor of Peerless, finding that, under the modified McDonnell
Douglas test, Taylor had made out a prima facie case of discrimination but had
failed to show that Peerless’s stated reason for firing Taylor was pretextual or
that race was a motivating factor. The district court also found that Peerless
would have made the decision to fire Taylor regardless of any discriminatory
animus.
      Taylor now appeals the district court’s second grant of summary judgment,
asserting that Taylor’s superior sales performance demonstrates that Peerless’s
stated reason for firing Taylor—that he had neglected to comply with
management’s directives concerning how he was to perform his job and that this
was causing him to be ineffective in the field—was a pretext for race
discrimination and, alternatively, that even if the stated reason for Taylor’s
dismissal was true, Peerless’s unfavorable treatment of Taylor with respect to
pay, evaluations, and job demands relative to white employees; failure to comply
with its progressive disciplinary policy; and failure to hire and maintain a more
racially diverse workforce, demonstrate that race was also a motivating factor
in his dismissal.   Taylor also asserts that the district court’s finding that
Peerless would have fired Taylor even if race had been a motivating factor is
speculative and inherently a fact question for a jury.
      Peerless responds that sales volume alone is not the sole measure of a
salesperson’s effectiveness, and that Taylor’s sales volume in particular is not
a reliable indicator of his effectiveness because he merely serviced existing
accounts and did not secure additional clients or sales. Peerless asserts that
Taylor was an ineffective salesperson because he failed to call on customers or
generate new business, he failed to use the customer management database, and
his communication with management was almost nonexistent.               Peerless

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contends that Taylor was treated unfavorably relative to white employees solely
because of Taylor’s unique performance problems and that Taylor has failed to
identify any white employees who had the same performance problems as Taylor
yet were treated differently; that Peerless complied with its progressive
disciplinary policy; and that Taylor’s evidence concerning Peerless’s hiring
practices are inaccurate and inconclusive. Peerless asserts that the question of
whether Peerless would have fired Taylor even if race had been a motivating
factor is the proper subject of a summary judgment ruling.1
       For the reasons stated below, we AFFIRM.
I.     Background
       Prior to working for Peerless, Taylor had seventeen years of experience in
sales at companies such as Bose Corporation, Western Union, and Philips
Consumer Electronics. Peerless hired Taylor in October 2001 as a district sales
representative in the professional sales department. There were approximately
ten employees in the sales force. Taylor was the only salesperson who was black;
the others were white. Taylor was responsible for Peerless’s South District,
which included Texas, Oklahoma, Arkansas, and Louisiana. Taylor’s direct
supervisor at Peerless was Kevin McDonald, the southern regional sales



       1
         Peerless also asserts that Taylor has failed to make out a prima facie case of
discrimination on the grounds that Taylor was not qualified for the position because he lacked
the minimum qualifications for his position, such as effective writing and communication
skills, and because he performed poorly. Peerless’s argument that Taylor lacked the minimum
qualifications for the position is belied by the fact that Peerless hired Taylor in the first place,
and performance concerns are more appropriately addressed in assessing a plaintiff’s assertion
that an employer’s articulated reason for its action was a pretext. See Berquist v. Wash. Mut.
Bank, 500 F.3d 344, 350–51 (5th Cir. 2007) (“Although Washington Mutual submitted evidence
that Berquist’s supervisors were not pleased with his performance, this evidence does not
prove a lack of qualifications at the prima facie stage.”); Bienkowski v. Am. Airlines, Inc., 851
F.2d 1503, 1506 (5th Cir. 1988) (“[A] plaintiff challenging his termination or demotion can
ordinarily establish a prima facie case of age discrimination by showing that he continued to
possess the necessary qualifications for his job at the time of the adverse action. The lines of
battle may then be drawn over the employer’s articulated reason for its action and whether
that reason is a pretext for age discrimination.”).

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manager.    Beginning in August 2002, McDonald began reporting to Tom
Connolly, the new director of professional sales. Connolly reported to Ken
Johnson, the vice president of sales and marketing.
      In 2002, Taylor had the highest sales volume at Peerless and received an
award for being the “number one” salesperson at the sales award dinner at the
end of the year.   In that year, he exceeded his sales quota by 29.2% and
increased sales in his district by 58.1%. Taylor’s biggest customer was Ultrak,
a company that had been a Peerless customer prior to Taylor’s arrival at
Peerless. Excluding sales to Ultrak, Taylor’s sales increased 28.5% in 2002 and
were still above his sales quota. McDonald gave Taylor a “1” on each of his
quarterly performance reviews in 2002, which were graded on a 0–2 scale.
Peerless used the following half-point incremental rating scale: a “2” is
considered exceptional; a “1.5” is considered outstanding; a “1” is considered
good; and a “.5” is considered below standard. McDonald’s comments in these
reviews were generally positive, praising Taylor for his willingness to help
customers, learning quickly about Peerless’s business, coming up with good ideas
at sales meetings, making business contacts and building dealer relationships,
accepting feedback, his energy and enthusiasm for his job, and his sales
performance. In his third and fourth quarter reviews, McDonald stated that
Taylor needed to improve on communicating with his customers and McDonald
on a timely and consistent basis, scheduling his time, and planning his work, but
McDonald stated that, on the whole, Taylor had “done a good job in 2002” and
was open to feedback for ways to improve his work. In his third-quarter self-
evaluation, Taylor stated that his general performance had been good and that
one of his current goals was to “improve all levels of communication, both
internal and external.”
      Connolly ordered all sales representatives to submit a detailed sales plan
for 2003 by January 6, 2003. Taylor turned in his sales plan on January 8, two


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days late. Connolly was dissatisfied with Taylor’s sales plan and ordered him
to submit a revised version because the first plan Taylor submitted was based
on inaccurate sales figures from the prior year, did not follow the specified
format, and did not specifically discuss how Taylor intended to increase sales.
Connolly testified that he believed Taylor did not put much time or effort into
preparing the plan and that the inaccurate figures demonstrated that he did not
understand his territory and existing accounts very well. Taylor submitted a
revised plan with accurate sales figures, but Connolly was dissatisfied with the
revised report because it did not specifically discuss how Taylor intended to
increase sales. However, Connolly accepted Taylor’s revised sales plan and did
not request that Taylor again revise his sales plan.
      Taylor received a three-percent merit increase in pay on February 3, 2003
based on his performance in 2002. The average merit pay increase for Peerless’s
sales force that year was four percent, and ranged between two and five or six
percent. Connolly testified that the amount of the increase was based on sales
performance and professional comportment, i.e., how well the salesperson
worked with associates and customers, follow-up skills, knowledge of products,
and activity levels. He stated that he did not rely strongly on sales figures in
assessing sales performance because they were not a reliable indicator of a
salesperson’s effectiveness due to the fact that an individual’s sales could
increase or decrease as a result of events over which he had no control. Connolly
stated that he tried “to fairly evenly divide the balance of the monies because I
didn’t have a good way of making a serious judgment there.”
      Some time in February 2003, one of the largest customers in Taylor’s
territory told McDonald that Taylor had never met with that customer in person,
and another customer told McDonald that Taylor had not met with that
customer since February 2002.      McDonald and Connolly reviewed Taylor’s
expense and activity reports to track Taylor’s contacts with customers. Connolly


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asserted that they found that Taylor was not timely in submitting itineraries or
activity reports to justify his time in the field; he was not making sufficient sales
calls or generating sufficient new business; he was not properly using Peerless’s
customer management database system to track his contacts; his sales
presentations were disorganized and unscheduled; and his expense reports were
not timely.
      On March 20, 2003, Connolly instructed McDonald to have a meeting with
Taylor about Taylor’s performance. Connolly testified that Taylor had strong
sales numbers at the time, but that Connolly was concerned about whether
Taylor was doing the necessary work to secure future sales and was unable to
assess this based on the limited feedback Connolly was receiving from Taylor.
In the meeting, McDonald and Taylor discussed the need for scheduling in
advance twelve face-to-face calls each week, returning e-mails and phone calls
in a timely fashion, developing better time management skills, and improving
organization and efficient use of work e-mail. When asked about his contacts
with the customers who informed McDonald about their lack of face-to-face
contact with Taylor, Taylor told McDonald that he had spoken with them
numerous times by telephone. McDonald sent Connolly a memo on March 24
reporting on the contents of the meeting. McDonald noted in the memo that
Peerless customer service representatives had repeatedly told McDonald that
they had difficulty getting in contact with Taylor.
      On March 27, 2003, Connolly called Taylor to discuss Taylor’s
performance. Connolly informed Taylor that his performance had been deficient
for the following reasons: his 2003 sales plan was late, included incorrect data,
and showed little insight into his sales objectives; for the first quarter of 2003,
he made only two calls on prospective customers, while other sales
representatives made at least one per week; he had never visited one of the
largest customers in his territory and had not visited another in more than a


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year; for the first quarter of 2003, he made only 29 calls on customers, and was
expected to make at least 12 per week; he did not use the customer management
database—he had entered only 67 contact names into the system, some of which
were duplicates, when he was expected to enter at least 200 contact names; he
made “drop-bys” rather than scheduled customer meetings; he failed to contact,
per Connolly’s direction, a particular customer; he was unorganized on sales
calls; and he did not adequately communicate with management.
      Connolly, rather than McDonald, completed Taylor’s performance review
for the first quarter of 2003. The review, issued on March 28, was sharply
critical and gave Taylor a “.5” rating, indicating that his work was below
standard. The review stated that Taylor had been slow to adapt to the new focus
and responsibilities of his position and that his sales activities had not met
Connolly’s expectations. The review emphasized Taylor’s failure to become more
organized in his work, communicate effectively, plan ahead, timely respond to
telephone calls and e-mails, and make face-to-face appointments with customers,
and repeated the same specific criticisms of Taylor’s performance that Connolly
had made in their telephone conversation the day before. The review stated that
Taylor was not uncovering many meaningful new business opportunities or
developing stronger relationships with the significant dealers in his district, that
he was more comfortable going back to the same contacts with the same dealers
rather than finding new contacts, that his sales number were deceiving because
the Ultrak account was driving virtually all of his growth and much of his
volume, and that his sales volume with other accounts was much less impressive
and indicative of a sales pattern that was not effective. The performance review
stated that Taylor was required to immediately address the specific expectations
laid out in the review, including planning sales calls in advance; making at least
12 face-to-face sales calls each week; planning specific sales objectives for each
call; recording sales-call results in the customer database system; submitting


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weekly expense reports; meeting face-to-face with all significant dealers in his
district within the month; securing three appointments with computer accessory
dealers or resellers within the next month; opening three new accounts within
the next month; providing responsive and accurate communication; and growing
his book of business.
      Connolly asserted that in April 2003, he orally instructed Taylor, on two
separate occasions, to call him twice each week to check in. Connolly sent Taylor
an e-mail on April 17 stating that Taylor had not complied with Connolly’s
directive to call him twice each week and reminding him to do so. Taylor
disputed this account, stating that Connolly told him to call either Connolly or
McDonald twice each week, but he conceded that he did not call Connolly as
directed after receiving the e-mail. Connolly also asserted that Taylor failed to
satisfy the performance expectations outlined in his performance review.
      On May 2, 2003, Taylor was fired and replaced by a white male. At the
time he was fired, Taylor was ahead of his sales quota and had ranked either
first or second in sales in the preceding four months. In Taylor’s letter of
termination, Peerless stated that “as was noted extensively in your First Quarter
Performance Review, there have been a growing list of things you have chosen
not to act upon in a timely fashion that is causing you to be largely ineffective
in the field,” and “[t]here has been little activity in the past few weeks to support
any change in the effective use of your sales time.”
II.   The Applicable Legal Standards
      A.     The Standard of Review
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. See XL Specialty Ins. Co. v.
Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir. 2008); Hirras v. Nat’l
R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary judgment is
proper if the record reflects “that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
      B.     The Modified McDonnell Douglas Test
      Under Title VII, it is an “unlawful employment practice for an employer
. . . to discriminate against any individual . . . because of such individual’s race.”
42 U.S.C. § 2000e-2(a)(1). Section 1981 grants equal rights to “make and enforce
contracts,” including “the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship.” 42 U.S.C. § 1981(a)–(b). Title VII and section
1981 claims require the same proof to establish liability when used as parallel
causes of action. Bunch v. Bullard, 795 F.2d 384, 387 n.1 (5th Cir. 1986).
      This court recognizes a modified McDonnell Douglas burden-shifting
framework to analyze claims of discrimination where, as here, the plaintiff relies
on circumstantial evidence. See Rachid v. Jack In The Box, Inc., 376 F.3d 305,
311 n.8 & 312 (5th Cir. 2004) (following the Supreme Court’s decision, after Title
VII’s amendment, in Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)); see
also Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th
Cir. 2007). Under this approach, the plaintiff must first establish a prima facie
case of discrimination by showing that (1) he is a member of a protected class;
(2) he is qualified for the position at issue; (3) he suffered an adverse
employment action; and (4) he was replaced by someone outside the protected
class or was treated less favorably than similarly-situated employees outside the
protected class. Rachid, 376 F.3d at 312; Okoye v. Univ. of Tex. Houston Health
Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001). If the plaintiff establishes a
prima facie case, the burden shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for its action.        Rachid, 376 F.3d at 312.       If the
defendant satisfies its burden of production, the burden then shifts back to the
plaintiff to offer sufficient evidence to create a genuine issue of material fact that

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either (1) the defendant’s reason is false and is a pretext for discrimination, or
(2) that the employer’s reason, while true, is only one of the reasons for its
conduct, and the plaintiff’s protected characteristic was a “motivating factor” in
its decision. Id. If the plaintiff demonstrates that the protected characteristic
was a motivating factor in the employment decision, it then falls to the
defendant to prove that the same adverse employment decision would have been
made regardless of discriminatory animus. If the employer fails to carry this
burden, the plaintiff prevails. Id.
III.   Analysis
       A.    Pretext
       Peerless informed Taylor that he was fired for failing to comply with
management’s directives concerning how he was to perform his job, which had
resulted in him being ineffective in the field. Specifically, in Taylor’s letter of
termination, Peerless stated that “as was noted extensively in your First Quarter
Performance Review, there have been a growing list of things you have chosen
not to act upon in a timely fashion that is causing you to be largely ineffective
in the field,” and “[t]here has been little activity in the past few weeks to support
any change in the effective use of your sales time.” Taylor asserts that his sales
numbers demonstrate that this legitimate, nondiscriminatory reason is false and
is a pretext for discrimination. Peerless does not dispute that Taylor had good
sales numbers, but asserts that sales volume alone is not the sole measure of a
salesperson’s effectiveness, and that Taylor’s sales volume in particular is not
a reliable indicator of his effectiveness because he merely serviced large existing
clients and did not secure additional clients or sales. Peerless asserts that
Taylor was an ineffective salesperson because he failed to call on customers or
generate new business, he failed to use the customer management database, and
his communication management was almost nonexistent.
       We believe that this case is similar to Baker v. Randstad North America,

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L.P., 151 F. App’x 314 (5th Cir. 2005), in which this court held that evidence that
a salesperson was the highest revenue generator in his market did not raise a
genuine issue of material fact as to whether his employer’s reason for firing
him—his poor sales performance—was pretextual.                       In Baker, the employer
considered a number of factors in addition to revenue-generation in assessing
sales performance, including productivity, the ability to generate new business,
and contacting and having meetings with clients. This court found that the
evidence concerning the plaintiff’s high revenue generation failed to raise a fact
issue as to pretext because the employer’s assertion that the plaintiff was the
poorest-performing salesperson was based on the fact that he was ranked poorly
under all of the other performance indices considered by the employer, and that
his high revenue was not a reflection of good sales performance because it was
due solely to a single large account that the plaintiff had secured early in his
employment and was “living off” that ended up having negative profitability due
to high costs and was eventually dropped. Id. at 319.
       Similar to the employer in Baker, Peerless considered a number of criteria
in addition to recorded sales in assessing sales performance, including the
frequency with which a salesperson called on customers, the ability to generate
new business, use of the customer management database, and communication
with management. While Taylor’s sales numbers cannot be as easily discounted
as those in Baker,2 we hold that Taylor’s sales numbers by themselves are not

       2

Taylor submitted evidence not only that he had a high sales volume, but that he consistently
exceeded his sales quota in 2002 and 2003, which Peerless could have adjusted to account for
his inheritance of large sales accounts, changing market conditions, or simply a belief that
Taylor could and should be able to make more sales. Connolly testified that he reviewed each
salesperson’s sales figures and that sometimes it was unclear whether the salesperson was
actually responsible for their sales, and that he did not believe that sales figures were a
reliable indicator of a salesperson’s effectiveness due to the fact that an individual’s sales could
increase or decrease as a result of events over which he had no control. However, Connolly’s
asserted belief in the unreliability of these figures is belied by the fact that Peerless still set
sales quotas for its salespeople and gave awards for high sales volume. Moreover, a

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sufficient to raise a fact issue as to pretext because of the significance of the
specific alleged performance deficiencies in Taylor’s effectiveness as a
salesperson and the fact that Taylor has failed to submit evidence to rebut the
bulk of those allegations. The mere fact that a salesperson has achieved high
sales numbers over a relatively short period of time—here, less than two
years—does not mean that a salesperson is effective in the field if the
undisputed evidence shows that the salesperson has neglected to do the
reasonable tasks requested by his employer in order to maintain or increase
sales in the future and to allow the employer to develop and execute sales
strategies and ensure compliance with those strategies.
       Taylor cites several cases from our sister circuits holding that evidence
that a salesperson achieved a significant sales volume may show that the
salesperson performed their job effectively and that an asserted performance-
based reason for their firing was pretextual. In Fisher v. Pharmacia & Upjohn,
225 F.3d 915 (8th Cir. 2000), the court found that a salesperson who had been
demoted by his employer, ostensibly because he lacked sufficient product
knowledge, could not effectively communicate with customers, and acted
unprofessionally during sales calls, had raised a fact issue as to whether he
performed his job at a level that met his employer’s legitimate expectations and
whether the asserted reasons for his demotion were pretextual by presenting
testimony by a customer and manager that he was proficient at selling his
company’s products, supplemented by past performance evaluations praising his


salesperson’s sales volume is always subject to uncontrollable variables such as market
conditions. Even excluding sales to Ultrak, Taylor’s sales increased 28.5% in 2002 and were
still above his sales quota. In his deposition, Connolly testified that he believed that the 28.5%
increase was due to a good economic climate, changes in state spending, and other contracts
that were already in place when Taylor started working for Ultrak, but he conceded that this
was simply his general impression and that he was unable to accurately assess what portion
of the 28.5% increase was due to these various factors. Connolly stated that “I determined
that I couldn’t determine” how much credit Taylor should have been given for the 28.5%
increase.

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performance that corroborated this testimony. Id. at 920–21. The Fisher court
stated that “the selling of product is the primary responsibility of a salesperson
and thus that sales volume is generally the principal indicator of a salesperson’s
performance.”3 Id. at 920 (citing Keathley v. Ameritech Corp., 187 F.3d 915, 919
(8th Cir. 1999)). The court contrasted sales positions with more multifaceted
jobs in which job performance could not as easily be reduced to a single metric.
Id. at 920.
       Taylor also cites Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326
(3d Cir. 1995), in which the court similarly held that a salesperson’s excellent
sales figures could show that firing that salesperson for “performance problems,”
when those problems related to organizational skills rather than actual sales,
was a pretext for discrimination. In Brewer, the court held that a salesperson
had raised a fact issue as to whether the legitimate, non-discriminatory reasons
for terminating his employment—poor follow-up on customer requests, poor
communication with clients and with management, too little time spent in his
territory, and late and ambiguous sales reports—were only a pretext for
discrimination by (1) testifying about specific examples of his supervisor’s errant
or misplaced criticisms in order to dispute the significance of the problems raised
by his supervisor and (2) submitting evidence that he had previously received
positive evaluations and bonuses for surpassing his sales quota in the two years
before he was fired (the most recent given three months before he was fired), and
had been the only salesperson in his region to exceed his or her sales quota for
those two years. Id. at 331–32. The court based its ruling on its observation


       3
       The Eighth Circuit considers whether a plaintiff “was performing his job at a level that
met his employer’s legitimate expectations” as a question properly considered in assessing
whether a plaintiff has satisfied the “qualified” prong of the prima facie showing in a
termination or demotion case, in contrast to the rule in this circuit that such performance
concerns are more appropriately addressed in assessing a plaintiff’s assertion that an
employer’s articulated reason for its action was a pretext. See Berquist, 500 F.3d at 350–51;
Bienkowski, 851 F.2d at 1506.

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that “the volume of sales may always be the primary measure of a salesperson’s
performance,” and that “segregat[ing] job performance into the neat categories
of sales and organizational skills defies the reality of the role of a salesperson in
a company.” Id. at 331–32 (citing Kiliszewski v. Overnite Transp. Co., 818 F.
Supp. 128, 132 (W.D. Pa. 1993)). The court conceded that “[a]n employer may
have a legitimate reason for firing an employee that has nothing to do with that
employee’s performance of the core functions of his or her job,” but held that the
plaintiff’s “deficiencies pale beside his consistently good sales performance,
inexplicably unaccounted for in his supervisor’s negative evaluations” and that
“[a] factfinder could find it implausible that [the employer] would have fired [the
plaintiff] for such deficiencies when he was successful in the sole area identified
by [the employer’s] own performance incentive program—sales.” Id. at 332.
      Finally, Taylor cites Krieger v. Gold Bond Building Products, 863 F.2d
1091 (2d Cir. 1988), in which the Second Circuit upheld the trial court’s factual
finding that an employer’s legitimate, non-discriminatory reasons for
terminating a female salesperson—her poor paperwork, her failure to sell the
full range of the company’s products, and her use of her home telephone to
contact customers—were pretextual, on the grounds that the salesperson had a
record of either exceeding her sales quotas or at least exceeding the sales figures
posted by many of her male counterparts; evidence that the company preferred
not to have female salespeople; and evidence that the flaws attributed to the
fired female salesperson were shared by many of her male coworkers, none of
whom were fired for similar reasons. Id. at 1098–99.
      None of the cases from our sister circuits cited by Taylor hold that
evidence of a salesperson’s significant sales volume by itself is always sufficient
to raise a fact issue as to whether the salesperson performed their job effectively
or whether an asserted performance-based reason for their firing was pretextual.
In Fisher, the salesperson’s evidence concerning his sales proficiency—testimony

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by   a     customer    and   manager,    supplemented     by   past   performance
evaluations—directly rebutted the specific alleged performance deficiencies cited
by the employer, including a lack of product knowledge, poor communication
with customers, and unprofessional conduct during sales calls. 225 F.3d at
920–21. The customer testified that the salesperson had always presented his
company’s products in a way that demonstrated the benefit of their use to the
customer; the salesperson’s past performance evaluations gave him high marks
for his product knowledge; and the manager testified that the salesperson’s
ability to “talk country,” or relate to customers who did not have a high level of
education, and his ability to build rapport with clients by talking about social
matters rather than strictly business issues, actually enhanced his ability to sell
products. By contrast, Taylor’s evidence concerning his sales proficiency—his
sales numbers—do not rebut the specific performance deficiencies cited by
Peerless, including failing to call on customers, failing to generate new business,
failing to use the customer management database, and communicating
effectively. Rather, Taylor asserts that previously recorded sales volume is the
sole legitimate measure of a salesperson’s effectiveness, and that his alleged
deficiencies in other areas are secondary measures of performance that should
be discounted in the face of sales-volume evidence.
         With regard to the statement in Fisher that “the selling of product is the
primary responsibility of a salesperson and thus that sales volume is generally
the principal indicator of a salesperson’s performance,” id. at 920 (emphasis
added), the qualifiers “generally” and “principal” make clear that the Fisher
court did not mean to embrace an absolute rule that evidence of a salesperson’s
significant sales volume by itself is always sufficient to raise a fact issue as to
whether the salesperson performed his job effectively. That statement clearly
contemplates that there are other relevant indicators that may provide a better
or more complete picture of a salesperson’s performance. In this case, although

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Taylor had good sales numbers, his documented failure to call on customers,
generate new business, use the customer management database, and
communicate effectively could reasonably have been viewed as jeopardizing his
ability to maintain or increase sales in the future and as undermining Peerless’s
ability to develop and execute strategies designed to maintain or increase sales
in Taylor’s district and ensure compliance with those strategies. Indeed, one of
the largest customers in Taylor’s territory told McDonald that Taylor had never
met with that customer in person, and another customer told McDonald that
Taylor had not met with that customer since February 2002. Taylor’s sales
volume clearly presents an incomplete picture of his performance and is not by
itself sufficient to raise a fact issue as to whether he was actually effective in the
field.
         Brewer is distinguishable on similar grounds. In Brewer, as in Fisher, the
salesperson presented testimony directly rebutting the extent and degree of the
specific alleged performance deficiencies cited by the employer, including poor
follow-up on customer requests, poor communication with clients and with
management, too little time spent in his territory, and late and ambiguous sales
reports. 72 F.3d at 331. As discussed above, Taylor does not attempt to rebut
most of the alleged specific deficiencies in his performance.4 The primary thrust
of his argument is that his sales numbers show that he was an effective
salesperson in spite of the specific deficiencies cited by Peerless. As for the
Brewer court’s observation that “the volume of sales may always be the primary
measure of a salesperson’s performance,” id. at 331–32 (emphasis added), that
statement is couched in the same qualified language as the statement in Fisher
that “sales volume is generally the principal indicator of a salesperson’s

         4
       Taylor does present evidence to dispute some of the alleged deficiencies in his
performance, including evidence that he opened two new accounts after his first-quarter
performance review in 2003 and that he secured a verbal commitment on a third account on
the day before he was terminated.

                                          16
                                          No. 08-20216

performance,” 225 F.3d at 920–21 (emphasis added). We do not disagree with
the Brewer court’s statement that “segregat[ing] job performance into the neat
categories of sales and organizational skills defies the reality of the role of a
salesperson in a company,” 72 F.3d at 332 (emphasis added), but believe that
the performance deficiencies cited by Peerless directly concerned his ability to
maintain or increase sales in the future and Peerless’s ability to develop and
execute strategies designed to maintain or increase sales in Taylor’s district and
ensure compliance with those strategies.
       Finally, Krieger is distinguishable on the grounds that the salesperson
submitted relevant evidence of discrimination in addition to her sales figures,
including evidence that the company preferred not to have female salespeople
and that the flaws attributed to the fired female salesperson were shared by
many of her male coworkers, none of whom were fired for similar reasons. 863
F.2d at 1098–99. Here, Taylor relies solely on his sales figures to establish
pretext.5
       Taylor has failed to raise a genuine issue of material fact as to whether
Peerless’s stated reason for his termination is false and a pretext for
discrimination
       B.      Race as a Motivating Factor
       Taylor argues that even if the stated reason for Taylor’s dismissal was
true, Peerless’s unfavorable treatment of Taylor with respect to pay, evaluations,

       5
        In arguing in the alternative that race was a motivating factor in his dismissal, Taylor
asserts that he was treated differently than his white counterparts with respect to pay,
evaluations, and job demands; that Peerless did not follow the four steps of progressive
discipline contained outlined in the employee handbook; and that Peerless failed to hire and
maintain a racially diverse workforce. Taylor’s briefs are inconsistent as to whether the
evidence that he provides to support these allegations is also being offered to show pretext.
Some sections of his briefs specifically state that it is being offered only to show that race was
a motivating factor, and the evidence is not discussed in the “pretext” section of his briefing,
but he states several times in passing that this evidence can also be used to show pretext.
Regardless, as discussed below, this evidence is deficient for numerous reasons and does not
provide support for either proposition.

                                               17
                                   No. 08-20216

and job demands relative to white employees; failure to comply with its
progressive disciplinary policy; and failure to hire and maintain a more racially
diverse workforce, demonstrate that race was also a motivating factor in his
dismissal. Peerless asserts that Taylor was treated unfavorably relative to white
employees solely because of Taylor’s unique performance problems and that
Taylor has failed to identify any white employees who had the same performance
problems as Taylor yet were treated differently; that Peerless complied with its
progressive disciplinary policy; and that Taylor’s evidence concerning Peerless’s
hiring practices are inaccurate and inconclusive.       In assessing whether a
protected characteristic was “a motivating factor,” a court must consider the
evidence presented by the plaintiff as a whole. See Machinchick v. PB Power,
Inc., 398 F.3d 345, 355 (5th Cir. 2005).
      Taylor has submitted evidence that some Caucasian salespeople
occasionally failed to turn in itineraries in advance, make twelve face-to-face
sales calls per week, and had problems using the customer management
database, but were not fired for any of these failings. Taylor also points out that
he received a below-average pay increase, that he was the only salesperson who
was directly reviewed by Taylor, and that he was the only employee ordered to
immediately address the list of specific expectations laid out in his performance
review. To establish discriminatory motive through the different treatment of
another employee, that employee’s circumstances, including his misconduct,
must have been “nearly identical.” See Perez v. Tex. Dep’t of Criminal Justice,
395 F.3d 206, 213 (5th Cir. 2004); Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 901 (5th Cir. 2002). Taylor has failed to submit any evidence showing that
any other individual salesperson was engaged in nearly identical conduct,
specifically that they were deficient in all or even a significant number of the
areas in which he was deficient or that other salespersons’ deficiencies were as
severe. In light of the complete lack of evidence concerning the nature and

                                        18
                                         No. 08-20216

extent of the deficient conduct engaged in by Taylor’s white coworkers,
comparing the disciplinary measures Peerless took with respect to Taylor to
those it took with respect to his coworkers provides no relevant information
regarding whether race played a role in Taylor’s termination. See Cheatham v.
Allstate Ins. Co., 465 F.3d 578, 583 (5th Cir. 2006) (finding that evidence that
other employees were treated differently than those in the protected class was
not probative on the issue of pretext or whether the employees’ protected status
was a motivating factor in their termination because the other employees were
not similarly situated due to the fact that they did not engage in the same
behavior); Audibert v. Lowe’s Home Centers, Inc., 152 F. App’x 399, 403 (5th Cir.
2005) (“To demonstrate that these male employees were given preferential
treatment in situations similar to her own, Audibert needed to provide evidence
that they engaged in misconduct nearly identical to the misconduct for which she
was allegedly discharged.”).6
       Taylor also contends that Peerless failed to comply with its written
progressive disciplinary policy, and that this failure is evidence that race was a
motivating factor in his termination. The four steps of progressive discipline
outlined in the policy are: (1) first warning; (2) second warning; (3) probation;
and (4) termination of employment. The policy specifically notes that these steps



       6
        Taylor objects to applying the “nearly identical” standard in this case, arguing that it
is only used in this circuit when evidence of other employees’ treatment is introduced to
demonstrate pretext, and not when it is introduced to show that a protected trait was a
motivating factor. Taylor does not cite any cases from this circuit in support of this argument,
and the rationale for the “nearly identical” standard is equally applicable in both contexts:
comparing the treatment of the plaintiff with the treatment of other employees does not
permit a reasonable inference of discrimination if differences in their treatment could just as
easily be ascribed to their different circumstances as to discrimination. See Perez v. Tex. Dep’t
of Criminal Justice, 395 F.3d 206, 213 (5th Cir. 2004). Taylor also argues that even in the
context of the pretext analysis, Supreme Court precedent mandates a “comparable
seriousness” standard rather than a “nearly identical” standard. This court has considered
the precedents cited by Taylor and held that the latter is the appropriate standard. See id. at
212–13.

                                               19
                                    No. 08-20216

are not mandatory, stating that “specific corrective action will depend on the
severity and conditions of the problem,” a manager “may employ some, all or
none” of the outlined steps, and that “[t]he use and duration of each step, and
type of disciplinary action taken, may vary depending on the situation and will
be determined within the sole discretion of Peerless Industries, Inc.” The policy
states that “[e]ach step, if used, may include a review of the details of the
problem, the changes needed, and the time frame within which the changes are
to occur,” and that disciplinary action “may also include suspension with or
without pay.” Taylor asserts that Peerless failed to comply with its progressive
disciplinary policy by bypassing the first three steps outlined in the policy.
Taylor notes that Connolly conceded that Taylor was not given a written
warning of termination, placed on probation, or suspended, and that Peerless
“did not go through the formal steps that are identified” in the policy. Peerless
did not violate the written disciplinary policy by declining to follow the four steps
of progressive discipline listed in the policy; the policy clearly states that
following the steps is not mandatory and that managers maintain significant
discretion in determining how to discipline employees.
      Taylor argues that an employer’s failure to follow a nonmandatory
disciplinary policy may still demonstrate that a protected characteristic was a
motivating factor in an adverse employment decision. Taylor cites Machinchick
v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005), in which this court stated that
“[a]lthough [the employer] correctly notes that its policy is not mandatory, and
that [the plaintiff] was an at-will employee, these facts do not eliminate the
inference of pretext raised by its failure to follow an internal company policy
specifically stating that it should be ‘followed in most circumstances.’” Id. at 355
n.29. Unlike the policy in Machinchick, the policy in this case did not state that
it should be “followed in most circumstances.” Indeed, Peerless’s policy takes
great pains to emphasize that the disciplinary measures used in a particular

                                         20
                                   No. 08-20216

case will be highly dependant on the specific circumstances and that managers
“may employ some, all or none” of the steps. In the absence of any evidence that
Peerless generally followed the four steps outlined in its disciplinary policy, or
that the policy was applied differently to similarly situated employees, the fact
that Peerless did not follow the four steps does not provide any relevant
information regarding whether race played a role in Taylor’s termination.
      Finally, Taylor argues that Peerless’s failure to hire and maintain a more
racially diverse workforce demonstrates that race was a motivating factor in his
dismissal. Taylor has submitted evidence that all eight of the salespeople hired
by Connolly were white, and that Connolly interviewed one or two black
candidates for several of those positions. Taylor has also submitted evidence
that four black employees in the customer service department were fired or
resigned during the tenure of Ken Johnson, Connolly’s supervisor.          Taylor
asserts that there was an overall lack of racial diversity at Peerless: Taylor was
the only black salesperson; only one black employee was in a management
position (human resources manager); and all regional sales managers and “upper
management” were white. Peerless contends that Taylor has mischaracterized
its hiring practices and the diversity of its workforce. Peerless asserts that
Taylor has ignored the following relevant facts about the treatment of employees
in the customer service department: there are currently five black employees in
the department; two white employees were fired and four resigned; a black
employee replaced another fired black employee; two black employees were hired
to replace two white employees who were fired; and Johnson himself hired two
black employees. Peerless also argues that human resource manager is an
“upper management position,” and therefore that it does have one black
employee in “upper management.”
      Taylor’s statistical evidence, when considered in context and along with
the other evidence in the record, does not permit a reasonable inference that race


                                       21
                                    No. 08-20216

was a motivating factor in Taylor’s termination. Taylor has failed to present any
evidence concerning the number of qualified black job applicants for sales and
managerial positions; a more comprehensive view of hiring practices in the
customer service department reveals no discernible discriminatory pattern; and,
as discussed above, Taylor has failed to point to other circumstantial evidence
that could support a reasonable inference that race was a motivating factor in
his termination. Although statistical evidence is not subjected to the same
exacting standards in disparate treatment cases as it is in disparate impact
cases, see Deloach v. Delchamps, Inc., 897 F.2d 815, 820 (5th Cir. 1990), Taylor’s
statistical evidence simply does seem not shed any light on the role that race
may have played in Peerless’s employment practices, see Cheatham v. Allstate
Ins. Co., 465 F.3d 578, 583 (5th Cir. 2006) (“These statistics are not probative of
discriminatory intent because they are devoid of context.”); Keelan v. Majesco
Software, Inc., 407 F.3d 332, 345–46 (5th Cir. 2005) (“Keelan’s statistical
evidence and pro-Indian remarks do not create a fact issue on pretext. Being a
majority Indian company did not prevent Majesco from also firing Indians for
nonperformance in sales.”); EEOC v. Tex. Instruments, Inc., 100 F.3d 1173, 1185
(5th Cir. 1996) (“The probative value of statistical evidence ultimately depends
on   all   the   surrounding   facts,   circumstances,   and   other   evidence   of
discrimination.”).
      Taylor’s evidence does not raise a fact issue as to whether his
ineffectiveness in the field was only one reason for Peerless’s decision to fire
Taylor, and that Taylor’s race was a motivating factor in the decision. Taken
together, Taylor’s evidence that he was treated differently than his white
counterparts with respect to pay, evaluations, and job demands; that Peerless
did not follow the four steps of progressive discipline contained outlined in the
employee handbook; and that Peerless failed to hire and maintain a racially
diverse workforce, does not permit a reasonable inference that discriminatory

                                          22
                                        No. 08-20216

animus also played a role in the decision. Cf. Machinchick, 398 F.3d at 353–55
(finding that evidence that an employer sought to hire younger employees, made
stereotypical remarks about the plaintiff based on his age, treated similarly
situated younger employees differently, and questioned the plaintiff about when
he planned to retire, raised a fact issue as to whether the plaintiff’s age was a
motivating factor in his dismissal).7
IV.    Conclusion
       Taylor has failed to raise a genuine issue of material fact as to whether
Peerless’s stated reason for his termination—that he had neglected to comply
with management’s directives concerning how he was to perform his job and that
this was causing him to be ineffective in the field—was false and a pretext for
discrimination, or as to whether Peerless’s stated reason for his termination was
only one reason for Peerless’s decision to fire Taylor, and that Taylor’s race was
a motivating factor in the decision. Accordingly, the judgment of the district
court is AFFIRMED.




       7
        In light of our holding that Taylor has failed to raise a fact issue as to whether race
was a motivating factor in his termination, we need not address the district court’s holding
that Peerless would have made the decision to fire Taylor regardless of discriminatory animus.


                                              23
