      Case: 11-60102   Document: 00511703266    Page: 1   Date Filed: 12/21/2011




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

                                                                     FILED
                                                                 December 21, 2011

                                  No. 11-60102                     Lyle W. Cayce
                                                                        Clerk

CAROL L. VAUGHN,

                                             Plaintiff – Appellant
v.

WOODFOREST BANK,

                                             Defendant – Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi


Before JONES, Chief Judge, and DAVIS and DeMOSS, Circuit Judges.
HAROLD R. DeMOSS, JR., Circuit Judge:
         On February 20, 2009, Carol L. Vaughn was fired from Woodforest Bank
for     “Unsatisfactory   Conduct.”   Vaughn    brought   suit    claiming   racial
discrimination under Title VII of the Civil Rights Act of 1964. Because Vaughn
has presented a genuine issue of material fact concerning Woodforest’s proffered
reason for firing her, we reverse the district court’s grant of summary judgment
and remand for a trial on the merits.
                                        I.
         On September 9, 2008, Carol L. Vaughn, a white woman, was hired by
Woodforest Bank to be the assistant manager of the soon-to-be-opened
Starkville, Mississippi branch. The Starkville branch, like dozens of others
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                                 No. 11-60102

throughout Mississippi and the southeastern United States, is located inside a
Walmart store. During the weeks prior to the grand opening, Vaughn underwent
management training and assisted Woodforest Regional Manager Misty
Gaskamp in hiring four retail bankers (Rhonda Williams, Sade Gore-Burgin,
Tocarra Key, and Kalliah Vickers), all black women. A New Branch Opening
Team (NBOT) assisted in training employees and opening the branch. The
NBOT included Linda Young, a black woman.
      On the day the branch officially opened, Gaskamp fired the manager, a
white male. Following an application and interview period in which Vaughn and
Williams were candidates, Vaughn was promoted to Starkville branch manager
in November or December 2008. Around the same time, after the NBOT had left
the branch, Young returned to Starkville as the new assistant branch manager.
As regional manager, Gaskamp lived in a different city in Mississippi but had
ultimate supervisory responsibility for each of the Starkville branch employees
and visited the branch about every three weeks.
      Gaskamp approved three pay increases for Vaughn between September
2008 and February 2009 and gave Vaughn a generally positive performance
evaluation on February 3, 2009. However, on February 20, 2009, Gaskamp fired
Vaughn after conducting a brief “climate survey” of the Starkville branch and
after a human resources representative conducted a brief follow-up investigation
over the phone. Gaskamp checked the box “Unsatisfactory Conduct” on the
termination form and gave the following written description as the specific
reasons for firing Vaughn:
      During a branch visit conducted by [Gaskamp], employees indicated
      concerns regarding inappropriate comments made by Carol Vaughn
      [and concerns about] the environment. HR conducted an
      investigation of the employee complaints and determined that Carol
      Vaughn . . . made inappropriate comments in the presence of
      employees and customers that created a perception of racial
      discrimination and uncomfortable work environment due to lack of

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      confidentiality. As a member of the Woodforest National Bank
      management team, it is expected that Carol uphold the highest
      degree of professionalism.
      In her deposition, Gaskamp testified that “we cannot talk about race in the
workplace” and that “if you talk about race in the workplace it’s racial
discrimination.” She also elaborated on Vaughn’s “unsatisfactory conduct,”
stating that there were three “racial” occurrences that formed the basis of her
decision to fire Vaughn. She described each occurrence as follows.
      First, Vaughn told Williams as they watched television coverage of the
Presidential Inauguration on January 20, 2009, that she wished the media
would stop making President Obama’s election a “black and white issue.” As part
of the same occurrence, Vaughn later told Williams and Gore-Burgin that her
Sunday School class had prayed that nothing would ever happen to President
Obama; that the class discussed his perceived religious conversion from Islam
to Christianity; and that the class hoped if anything were to happen to him it
would be done by “his own people” rather than “Americans.”
      Second, Vaughn returned from being away from the branch and discovered
that human resources was investigating an incident where Gore-Burgin
allegedly used the N-word at work during a phone conversation with her
husband. Later that day Vaughn told one retail banker—Key—that employees
should not use the N-word at work. She stated that she had been reprimanded
by a former employer for using the N-word many years before, but that she no
longer used the N-word.
      Third, Vaughn and Gaskamp separately interviewed two applicants in late
January 2009 for a retail banker position—Amanda (last name unknown), a
black woman, and Racheal Burnett, a white woman. While talking with
Gaskamp after the interviews, Vaughn said that she told Burnett that she was




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not a “prejudiced person” and confirmed that Burnett could work with the team
“as is.” Gaskamp called Vaughn’s comment “extremely unprofessional.”
      Other than what Gaskamp said in her deposition testimony and wrote on
Vaughn’s termination form, Woodforest did not document any employee or
customer complaint against Vaughn or provide any other evidence of
unsatisfactory conduct.
      Shortly after Vaughn was fired, Woodforest promoted Young to the
position of Starkville branch manager. This made the racial make-up of the
branch one black manager, four black retail bankers, and one white retail
banker.
      Vaughn brought suit against Woodforest alleging racial discrimination
under Title VII and now appeals the district court’s decision granting summary
judgment in favor of Woodforest.
                                        II.
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308
(5th Cir. 2004). Summary judgment is proper if, viewing the facts in the light
most favorable to Vaughn, Woodforest shows that there is no genuine issue of
material fact and it is entitled to judgment as a matter of law. Id.; see also FED.
R. CIV. P. 56(a). In reviewing the evidence, we draw all reasonable inferences in
Vaughn’s favor and do not weigh the evidence or make credibility
determinations. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.
2002) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000)). We also disregard any evidence favorable to Woodforest that the jury is
not required to believe. Id.
                                       III.
      Title VII makes it unlawful for an employer to fire an employee because
of the employee’s race. 42 U.S.C. § 2000e–2(a)(1). Moreover, an employer’s action

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will be found unlawful if the employee can demonstrate that her race was “a
motivating factor” for her firing, even if the employer was also motivated by
other    lawful   factors.   Id.   §    2000e–2(m).   Vaughn    alleges   that   her
race—white—was either the real reason or a motivating factor for Woodforest’s
decision to fire her.
        We apply the modified McDonnell Douglas approach in racial
discrimination cases under Title VII. Rachid, 376 F.3d at 312; see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this approach,
Vaughn must first make a prima facie case of racial discrimination. Davis v.
Dall. Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004). Then, Woodforest
must articulate a legitimate, non-discriminatory reason for firing Vaughn. Id.
If Woodforest provides a legitimate, non-discriminatory reason, the presumption
of discrimination disappears. Id. Vaughn must then “offer sufficient evidence to
create a genuine issue of material fact either (1) that [Woodforest’s] reason is not
true, but is instead a pretext for discrimination (pretext alternative); or (2) that
[Woodforest’s] reason, while true, is only one of the reasons for its conduct, and
another ‘motivating factor’ is [Vaughn’s] protected characteristic (mixed-motives
alternative).” Rachid, 376 F.3d at 312 (internal marks and citation omitted). We
will conduct our analysis in the order described.
                                           A.
        To make a prima facie case Vaughn must show that (1) she is a member
of a protected class, (2) she was qualified to be the Starkville branch manager,
(3) she was fired, and (4) she was replaced by someone outside of her protected
class. See Byers v. Dall. Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000).
Woodforest does not contest that firing Vaughn because of her race would be
contrary to Title VII and that Vaughn has made a prima facie case of racial
discrimination.



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                                        B.
      After Vaughn establishes a prima facie case, Woodforest must proffer a
legitimate, non-discriminatory reason for firing Vaughn. Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 255 (1981); Sandstad, 309 F.3d at 897. It is a
burden of production, not persuasion. See Reeves, 530 U.S. at 142. To meet its
burden, Woodforest “must clearly set forth, through the introduction of
admissible evidence, the reasons for [Vaughn’s firing].” Burdine, 450 U.S. at 256.
Woodforest is allowed to be incorrect in its assessment of the facts it relies on to
justify firing Vaughn, but it is not allowed to have any discriminatory animus
against her in making its decision. See Sandstad, 309 F.3d at 899; Laxton v. Gap
Inc., 333 F.3d 572, 579 (5th Cir. 2003).
      To meet its burden of production, Woodforest submitted Vaughn’s
termination form and Gaskamp’s deposition testimony. The termination form
provided that Vaughn had “Unsatisfactory Conduct” which was described as
“inappropriate comments in the presence of employees and customers that
created a perception of racial discrimination and uncomfortable environment due
to lack of confidentiality.” And Gaskamp’s deposition testimony provided
examples of Vaughn’s conduct that Woodforest deemed unsatisfactory:
(1) statements Vaughn made on January 20, 2009, related to the Presidential
Inauguration; (2) statements Vaughn made related to an incident where one
retail banker overheard another retail banker allegedly use the N-word; and
(3) statements Vaughn made in late January 2009 when describing her
interview of Burnett to Gaskamp. Woodforest’s stated non-discriminatory
reasons are sufficient to meet its burden. See Reeves, 530 U.S. at 142.
                                        C.
      Once Woodforest produces a legitimate, non-discriminatory reason for
firing Vaughn, the presumption of discrimination disappears and Vaughn “bears
the ultimate burden of persuading the trier of fact by a preponderance of the

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evidence that [Woodforest] intentionally discriminated against her because of
her protected status.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th
Cir. 2001). To do so, Vaughn “must put forward evidence rebutting each of the
nondiscriminatory reasons [Woodforest] articulates.” Id. at 220. She may use two
alternative methods to show that there is a genuine issue of material fact as to
whether she was fired because of her race: pretext and mixed-motive. Rachid,
376 F.3d at 312.
                                       1.
      To establish pretext, Vaughn must show that Woodforest’s “proffered
explanation is false or ‘unworthy of credence.’” Laxton, 333 F.3d at 578 (citing
Wallace, 271 F.3d at 221).
      Vaughn first attempts to show pretext by relying on a disparate treatment
theory, pointing to three Woodforest employees as “comparators”: Williams,
Gore-Burgin, and Young. See Perez v. Tex. Dep’t of Crim. Justice, Institutional
Div., 395 F.3d 206, 210 (5th Cir. 2004); see also Wallace, 271 F.3d at 221; Smith
v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990). Disparate
treatment occurs where an employer treats one employee more harshly than
other “similarly situated” employees for “nearly identical” conduct. See Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009); Wallace, 271 F.3d at
221. However, the Woodforest employees to whom Vaughn points are not
appropriate comparators. See Lee, 574 F.3d at 259–60 (providing that employees
with different supervisors, different work responsibilities, or dissimilar
violations are generally inappropriate comparators). Williams and Gore-Burgin
are both retail bankers who reported to Vaughn. They had different job
responsibilities    than   Vaughn,    and    they   had    dissimilar    violation
histories—Williams had attendance issues, wrote bad checks, and had attitude
problems, while Gore-Burgin allegedly used the N-word at work during a phone
conversation with her husband. And Young, even though she was an assistant

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branch manager who reported indirectly to Gaskamp and could be considered
“similarly situated,” apparently never made racial, religious, or political
comments in workplace conversations with subordinates. Vaughn’s attempt to
establish pretext through evidence of disparate treatment fails for lack of an
appropriate comparator.
       Vaughn also attempts to establish pretext by showing that Woodforest’s
proffered explanation is false or unworthy of credence. The inquiry is focused on
whether Woodforest’s explanation, accurate or not, is “the real reason” for firing
Vaughn. Laxton, 333 F.3d at 579. Vaughn must produce evidence, viewed in the
light most favorable to her, that would permit a jury to believe that Woodforest’s
proffered reason for firing her was not its true reason but simply pretext for a
racially discriminatory reason. Id. Such rebuttal evidence, combined with the
prima facie case, will suffice to create a genuine issue of material fact such that
summary judgment is inappropriate. Machinchick v. PB Power, Inc., 398 F.3d
345, 351 (5th Cir. 2005); see also Reeves, 530 U.S. at 148; Rachid, 376 F.3d at
307.
       Vaughn offers the following evidence to rebut Gaskamp’s portrayal of her
allegedly “unsatisfactory” conduct and cast doubt on whether Woodforest’s stated
non-discriminatory reasons were its real reasons for firing her. According to
Vaughn, she did not begin the conversations related to the Presidential
Inauguration. Apparently, Williams initiated the conversation with Vaughn by
expressing displeasure at President George W. Bush’s presence at the
Inauguration and directing Vaughn’s attention to the television coverage of the
event. Political and race-related conversations apparently continued among the
branch employees throughout the day, during which Vaughn also stated her
approval of Martin Luther King, Jr., and Jesse Jackson as potential presidents
and her general preference for Christian candidates. Multiple employees



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participated in these conversations, but only Williams later complained about
Vaughn’s comments.1
       With respect to the N-word incident, Vaughn was not present when it
occurred. Her comments in response to the incident were made later in the day
to only one retail banker—Key—who did not find them offensive and who did not
complain to Gaskamp or human resources. Moreover, her comments make clear
that she was instructing retail bankers not to use the N-word at work.
       Regarding the Burnett interview, Vaughn’s version of events are different
than Gaskamp’s. Vaughn states that, following the interview, Gaskamp pressed
her on whether she thought Burnett would “have a problem working with these
girls” and that when Vaughn asked whether she meant because Burnett was
white Gaskamp answered “yes.” Vaughn says she never discussed the racial
make-up of the branch with either candidate but she did tell both candidates
that they would be interacting with customers of different races if they were
hired. She says she told both candidates that she “got along with everybody” and
asked them if they could get along with everybody as well, to which both
candidates responded “yes.” She says she never used the words “prejudiced,”
“black,” or “white” in the interviews, and Gaskamp admits that in her deposition
testimony she was not describing her conversation with Vaughn verbatim.
       Vaughn also states that Gaskamp instructed her to offer Amanda, the
black applicant, the retail banker job at a hourly rate one dollar higher than
what they had discussed for Burnett, the white applicant. Only when Amanda
declined the position did Gaskamp instruct Vaughn to offer the position to
Burnett at the higher rate offered to Amanda. Had Amanda accepted the



      1
         Several weeks before the Presidential Inauguration Williams had apparently
questioned Vaughn in front of multiple black customers about who Vaughn had voted for in
the presidential race. After trying to avoid answering the question, Vaughn eventually said
that she voted for a “Christian man.”

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position, the racial make-up of the Starkville branch after February 20, 2009,
would have been one black assistant manager (soon-to-be manager), five black
retail bankers, and no white employees.
      In relation to the “eight to ten” complaints Gaskamp says she received
against Vaughn in the two months leading up to February 20, 2009, apparently
all of them came from Williams and none of them was formally documented. See
Laxton, 333 F.3d at 580–81 (noting the failure of the employer to document
employee complaints and discuss workplace problems with the manager who
was later fired and affirming a jury’s finding of discrimination). The complaints
began after Vaughn was promoted to branch manager and Young was promoted
to assistant manager, each instead of Williams.
      Additionally, Vaughn states that she called Gaskamp and human
resources on multiple occasions in January and February 2009 to ask how she
should discipline Williams for what she describes as insubordination—not
following instructions, arriving late to work or not coming in at all, writing bad
checks, and berating a fellow retail banker in front of customers. In response,
she was told by Gaskamp that we need to “watch our Ps and Qs . . . because of
what [Williams] would be capable of doing, her being the type of person that she
is.” Williams was never disciplined prior to February 20, 2009, but was later
terminated by Woodforest due to conduct similar to that described by Vaughn.
      Finally, Woodforest never expressed concern over any of Vaughn’s conduct
prior to the “climate survey” and investigation conducted on or around February
20, 2009, even though Woodforest was aware of each of the three “racial”
occurrences well before February 20, 2009. It appears that Vaughn never
received any warnings or reprimands for her conduct prior to February 20, 2009.
The Presidential Inauguration conversation occurred on January 20, 2009, a
month before Vaughn was fired, and no person other than Williams (whom
Woodforest admits was a problem employee and who was later fired) took any

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offense or complained to Gaskamp or human resources. The Burnett interview
occurred in late January 2009, several weeks before Vaughn was fired, and
Gaskamp was immediately made aware of the substance of the interview by
Vaughn herself and expressed no concern at the time. And the N-word incident
(date unknown) was handled by human resources immediately and Vaughn’s
behavior raised no concerns at that time and no employee complained about her
related comments. Other than through Gaskamp’s deposition testimony,
Woodforest has not produced any evidence that it considers any mention of race
in a workplace conversation to be, as Gaskamp called it, “racial discrimination”
and “extremely unprofessional.” See Rachid, 376 F.3d at 314 (finding a genuine
issue of material fact as to whether one manager’s description of the company’s
firing policy accurately described the company’s policy).
      This rebuttal evidence, when viewed as a whole and in the light most
favorable to Vaughn, casts doubt on Woodforest’s proffered non-discriminatory
reasons for firing Vaughn and undermines its credibility. See Reeves, 530 U.S.
at 147 (“Proof that the defendant’s explanation is unworthy of credence is simply
one form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.”). This evidence is sufficient to
raise a genuine issue of material fact as to whether Woodforest’s explanation is
not the true reason for firing Vaughn but rather pretext for race discrimination.
A jury could draw inferences from this evidence and reasonably conclude that
Woodforest intentionally exaggerated its concern over Vaughn’s “unsatisfactory”
conduct and that her workplace comments were not the real reason she was
fired. On these disputed facts, the district court “impermissibly substituted its
judgment concerning the weight of the evidence for the jury’s.” Id. at 153.
Summary judgment was inappropriate; a jury must decide whether Vaughn’s
race was the real reason she was fired.



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                                        2.
      Because the prima facie and rebuttal evidence Vaughn has submitted is
sufficient to raise a fact issue with respect to the pretext question, we need not
decide whether it is also sufficient for a reasonable jury to conclude that
Vaughn’s race was “a motivating factor” in her being fired. 42 U.S.C.
§ 2000e–2(m).
                                       IV.
      For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment and REMAND the case to let a jury decide whether
Woodforest discriminated against Vaughn because of her race.




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