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Click here for the full text of this decision FACTS:Darrell L. Burrell, an African-American male, began his employment with Dr Pepper/Seven Up Bottling Group LP (Dr Pepper) as corporate purchasing manager in May 2001. Burrell initially worked under Penny Soriano, Dr Pepper’s vice president of purchasing, to centralize and manage national purchasing for Dr Pepper. Burrell’s responsibilities included assisting in both the negotiation and management of various term contracts with Dr Pepper suppliers. In May 2002, Soriano resigned and recommended that Burrell be hired to replace her as vice president of purchasing. Burrell spoke with Tom Taszarek, executive vice president of administration, expressing his interest in being promoted to the vacant position. Ultimately, however, Dr Pepper did not promote Burrell and instead sought a replacement from outside the company. Burrell alleged that Dr Pepper told him that it wanted to hire someone with more “purchasing experience.” On the other hand, Dr Pepper stated “purchasing experience in the bottling industry” was the relevant criteria. In June 2002, Burrell suggested to Taszarek that his failure to be promoted was actually the result of racial discrimination, and he gave Taszarek a copy of a book titled “Roberts v. Texac A True Story of Race and Corporate America.” Burrell told Taszarek that his treatment at Dr Pepper was analogous to the experience of the plaintiff employee in the litigation detailed by the book. In October 2002, Dr Pepper hired Ted Koester, a white male, to fill the vacant position. Immediately preceding his arrival at Dr Pepper, Koester served as logistics manager for a Coca-Cola distribution center in San Antonio. He held that position for approximately two years but had been at Coca-Cola for 13 years. Although Burrell was not promoted to the position of vice president of purchasing, the parties agreed that he took on many duties associated with the position after the departure of Soriano in May 2002, through Koester’s hiring in October 2002 and continuing into February 2003 while Koester became familiar with the company and his new job. Burrell reported directly to CEO Jim Turner during this time and aided in the company’s purchasing functions. Dr Pepper conceded that Burrell got high marks for his work during this transition period. Burrell received a salary increase and also received a bonus in February 2003 for his performance. In addition, Burrell was selected in March 2003 to attend an annual company trip designated for high-performing employees. Despite these positive performance indicators, Burrell and Koester clashed, almost from the beginning of Koester’s employment. During their first telephone conversation in October of 2002 (just after Koester was hired), Burrell says he became concerned about Koester’s qualifications when Koester allegedly admitted to him that he had no purchasing experience and that Burrell would have to teach him purchasing. Later that month, Burrell claims that Koester attempted to tell him a racist joke. In addition, around the same time, Koester allegedly told Burrell that there was something about Burrell that intimidated him. For his part, Koester alleges that Burrell engaged in various insubordinate acts during this period, including failing to submit weekly reports and vacation requests as well as refusing to complete an assigned project. The conflict accelerated in July 2003 when Koester gave Burrell a negative performance review. The report rated Burrell as marginal and unsatisfactory (the two lowest ratings) in five of six categories of performance. Burrell requested and was granted permission to respond in writing to the evaluation, and he delivered his written response (with copies to the CEO Turner and Taszarek) on Aug. 4, 2003. On the same day that Burrell’s response was delivered and after consultation between Taszarek and Turner, Dr Pepper terminated Burrell’s employment. After refusing a conditional severance package, Burrell filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission over Dr Pepper’s failure to promote him and his subsequent termination. After receiving a right-to-sue letter from the EEOC, Burrell filed suit in district court for 1. unlawful discrimination for refusal to promote; 2. unlawful discrimination for termination based upon race; and 3. unlawful retaliation for termination based upon previous complaints of race discrimination. Dr Pepper moved for summary judgment. In support, Dr Pepper asserted that Burrell had failed to sufficiently refute its legitimate, nondiscriminatory reason for hiring Koester rather than promoting Burrell: Koester’s greater experience in bottling. On the claims related to Burrell’s termination, Dr Pepper alleged that the termination was because of insubordination and specifically cited Burrell’s failure to turn in weekly reports and vacation requests to Koester; Burrell’s complaints about Koester’s qualifications; Burrell’s refusal to research possible cost and supplier reductions in regard to a company project; and Burrell’s written response to Koester’s evaluation. The district court granted Dr Pepper’s motion for summary judgment, dismissing all of Burrell’s claims. On the failure-to-promote claim, the district court held that Burrell could not demonstrate that Dr Pepper’s reason was a pretext for discrimination, because the evidence did not establish that he was “clearly more qualified” than Koester. On the termination claims, the district court held that Burrell failed to raise a genuine issue of fact on the legitimacy of Dr Pepper’s proffered reason for his termination, namely, insubordination. HOLDING:Affirmed in part, vacated and remanded in part. Where a plaintiff does not produce any direct evidence of discrimination, courts must apply the well-known McDonnell-Douglas burden-shifting framework, the 5th U.S. Circuit Court of Appeals stated, citing its holding 2004′s Rachid v. Jack In The Box, Inc. Under the modified McDonnell-Douglas approach, the court stated, a plaintiff must first demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact that either the employer’s reason is a pretext or that the employer’s reason, while true, is only one of the reasons for its conduct, and another “motivating factor” is the plaintiff’s protected characteristic. Dr Pepper, the court stated, conceded that Burrell established his prima facie case on his failure to promote claim. Dr Pepper responded to Burrell’s prima facie case with a legitimate, nondiscriminatory reason for not promoting Burrell to the vice president of purchasing position: Dr Pepper desired someone with more “purchasing experience in the bottling industry.” Burrell, the court stated, sought to prove that Dr Pepper’s proffered reason for failing to promote him was a pretext for racial discrimination in two ways: 1. by showing that Dr Pepper’s proffered explanation was false or “unworthy of credence”; or 2. by establishing that he was “clearly better qualified” than Koester. After considering Burrell’s arguments and reviewing the record, the court concluded that a genuine issue of material fact remained regarding whether Dr Pepper’s hiring decision was based on purchasing experience in the bottling industry. Despite Dr Pepper’s evidence of Koester’s long service with its top competitor, the court stated that “it is clear that the bulk of his experience was not in the negotiation of contracts and purchasing raw materials and supplies, but rather in management and operations. Koester’s own resume and deposition testimony indicates that he lacked significant purchasing experience in the bottling industry.” Most significantly, the court stated that the testimony of Taszarek permitted the inference that Dr Pepper knew that Koester had less purchasing experience in the bottling industry than Burrell. Dr Pepper’s rationale for its hiring decision, the court stated, is also suspect, because it changed during the litigation. Before the district court, Dr Pepper stated that it hired Koester, because he had more bottling experience. In contrast, before the EEOC and on appeal, Dr Pepper asserted that it hired Koester for his purchasing experience. Based on this evidence, the court held that a reasonable jury could conclude that Koester’s experience did not exceed Burrell’s and that Dr Pepper was aware of this fact. The court further held that a reasonable factfinder could conclude that Dr Pepper’s asserted justification for hiring Koester his greater purchasing experience in the bottling industry was “unworthy of credence” and a pretext for intentional discrimination. On Burrell’s termination-related claim, Burrell acknowledged that Dr Pepper put forth a legitimate, nondiscriminatory reason for his termination: his on-the-job insubordination. After citing facts from the record, the court agreed with the district court that no reasonable jury could infer that racial discrimination or retaliatory intent was the reason or a motivating factor in Burrell’s termination. OPINION:Davis, J.; Davis and Stewart, J.J., and Godbey, D.J.

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