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Click here for the full text of this decision FACTS:Ivor Keelan, a United Kingdom national, began working as a regional sales director for Majesco Software Inc., a wholly owned subsidiary of the Indian company Mastek Ltd. Keelan began work in the Irving office of Majesco at a base salary of $110,000 plus commission. Keelan made no sales for the first four months and so was counseled by his supervisor, Gary Hart, an American. Keelan made three sales after the counsel, but then made no sales for the next seven months. David Sullivan, a U.S. citizen, was the director of alliances for Majesco, also working in the Irving office. He was hired in early 2001 for a $120,000 salary, plus commission. During this time, Keelan and Sullivan both complained that the were given inadequate marketing materials and that the company’s Web site hindered their sales performances. Both also said they encountered staffing problems, because Majesco did not want to hire Americans to be part of the teams Sullivan and Keelan worked with. Keelan claimed several of his projects were scuttled when the visas of Indian workers expired and replacements were not provided. A New Jersey-based American woman said she had similar staffing problems and was told by one of the company managers that the reason local people were not used to staff projects is because “Americans need too much handholding.” A Indian marketing director for Mastek told Keelan that he envisioned a day when Mastek would be totally Indian. The director was eventually appointed to be president of Majesco. Shortly after that, Hart resigned and was replaced by an Indian. At the time of his resignation, Hart told Keelan that though there was no document explicitly directing Americans to be forced out, that was what the practice was in reality. Sullivan and Keelan both complained to the human resources director (a non-Indian). Yvette Winfrey told Keelan to go to the Equal Employment Opportunity Commission, but by the time he was fired, he still had not. Saying it had fallen on hard times, Majesco on July 16, 2001, made an across-the-board change to its salary and commission schemes, resulting in smaller salaries and smaller commissions for everyone. Keelan was terminated in November 2001. He was replaced by a Canadian woman. Only a few weeks after he was hired, Sullivan signed a certificate with another software company and resigned from Majesco July 29, 2001. He made more money for the remainder of the year with the new company than he had made in the same amount of time working at Majesco. Keelan and Sullivan filed a national origin discrimination suit against Majesco in August 2002. Keelan said he was fired, and Sullivan said he was constructively terminated; both said the terms and conditions of their employment were discriminatory. Though Keelan and Sullivan urged the district court to analyze their case under the “mixed-motive” theory, the district court instead decided this was a pretext case under McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973). The district court granted summary judgment to Majesco and dismissed the plaintiffs’ claims. The district court found that the evidence did not support a prima facie case. Neither could show that they were denied any compensation due them or that Majesco treated similarly situated Indian employees better. As to Keelan’s discharge claim, the district court found he did not meet his prima facie case because nothing showed that similarly situated Indian salesmen were treated more favorably than he; that is, that they were not also counseled and then terminated for poor sales performance. The district court stated that even if Keelan had met his prima facie case, Majesco rebutted with a legitimate nondiscriminatory reason for his termination, and “stray remark” evidence did not raise an issue of pretext. As to Sullivan’s constructive discharge claim, the district court found he did not raise a genuine issue of fact on constructive discharge, because he was not subjected to objectively intolerable working conditions ,and because he left Majesco for what he perceived to be a better job. HOLDING:Affirmed. The court first considers whether the district court erred by requiring Keelan and Sullivan to provide evidence of similarly situated Indians receiving preferential treatment. Both plaintiffs insist that there were no similarly situated Indian employees at Majesco; without similarly situated employees, Keelan and Sullivan should not have been made to meet such a requirement for their prima facie case, they argue. The court, however, agrees with Majesco that Sullivan and Keelan did not properly raise in the district court the argument that showing similarly situated employees were more favorably treated to meet the fourth element of McDonnell Douglas is not required to prove a prima facie case of discrimination. Because they did not sufficiently object below, the district court did not have any opportunity to rule on their argument, and their argument is thus waived. The court next considers whether the district court erred by not analyzing the case under the mixed-motive theory. Here, again, because Keelan and Sullivan did not raise sufficient evidence to support their prima facie cases of discrimination, the district court did not even need to reach the question of whether the plaintiffs created fact issues on either pretext or mixed motive or both. The court then turns to consider whether the district court erred by finding Sullivan had not shown he was constructively discharged as part of the adverse-employment element of his prima facie case. Though Sullivan was required to work at the office (rather than from home) and that he worked in a cubicle-style office space, these facts do not constitute hostility or harassment. Furthermore, there was no evidence that Indians worked under different conditions. Similarly, there was evidence that the supposedly inadequate marketing materials and Web site were used by all sales associates, and that the pay cut and commission restructure also applied to all Majesco sales personnel. Furthermore, there was no evidence that Sullivan was badgered or compelled to leave his job. He accepted a higher-paying job before the pay-cut went into effect. If Sullivan perceived that he had a legitimate grievance over the new pay plan, a reasonable employee would have waited to see just how his paycheck was affected before seeking out a new, higher-paying job, the court finds. Finally, the court addresses whether the district court erred in finding that Keelan did not meet the discrimination element of his prima facie case. Keeping in mind that Keelan was constrained to produce evidence sufficient to raise a genuine fact dispute that similarly situated Indian salespersons were treated more favorably than he, the court finds that Keelan failed to meet the discrimination prong of his prima facie case. Nowhere does Keelan identify by name any Indian salesperson in “nearly identical” circumstances who received better treatment than he. Moreover, his statistical evidence indicating the majority Indian workforce at Majesco and the remarks pertaining to pro-Indian sentiment neither show nor can be reasonably inferred to show better actual treatment of Majesco’s Indian salespersons in circumstances “nearly identical” to Keelan’s. The court adds that even if this evidence could be considered adequate to support a prima facie case, Majesco has offered a legitimate, non-discriminatory reason for Keelan’s termination: Keelan’s poor sales performance. OPINION:Harold R. DeMoss Jr., J., delivered the court’s opinion.

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