Foster v. Solvay Phrmctl Inc

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 23, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-20210
Summary Calendar
DAVID FOSTER,
Plaintiff-Appellant,
versus
SOLVAY PHARMACEUTICALS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(4:02-CV-4462)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
In contesting the summary judgment awarded Solvay
Pharmaceuticals, Inc., David Foster claims retaliation in violation
of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e
(2000).
Solvay hired Foster in 2000. Foster’s title was Manager,
Managed Care West; he managed regional account executives (RAEs)
and cultivated corporate accounts. Stanley Ferrell was Manager,

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Managed Care East, with the same responsibilities as Foster. They
reported to Jim Herman.
Foster claims Herman engaged in gender discrimination by
awarding Solvay’s President’s Club Award (the award) to a male, Joe
Law, instead of to Suzanne Berger-Barrali, a female. Foster
alleges he was retaliated against – demoted and later fired – for
challenging Herman’s such discrimination.
The highest level of recognition given the company’s sales
force, the award is given to RAEs based on their sales performance;
overall performance reviews are used as tie-breakers. Foster and
Ferrell were responsible for conducting the performance appraisals
of the RAEs they supervised. Herman had the ultimate authority to
determine the winner.
In 2000, Herman’s assistant, Manuela Barolet, was responsible
for tracking and calculating the award standings. She routinely
sent emails to Foster, Ferrell, Herman, and others, updating them.
Barolet sent one email stating that, with one month left before the
selection for the award, Berger-Barrali was leading; results,
however, were not final and would be announced at the National
Business Meeting in January 2001. The email reminded that overall
performance rankings would be used as tie-breakers. As noted,
Herman had final authority to determine the winner.
Law and Berger-Barrali worked under Ferrell’s supervision; he
was responsible for submitting their evaluations to Herman. When

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Herman made the selection, his records indicated Law’s quantitative
reviews were better than Berger-Barrali’s; Herman did not yet have
qualitative reviews for the two. Herman believed, however, that
Law exhibited better leadership qualities. Therefore, he selected
Law.
Berger-Barrali was surprised and upset when she did not win;
she complained to Ferrell and others, including Foster. While
still at the January 2001 National Business Meeting, Foster
complained to Herman on Berger-Barrali’s behalf. Foster claims
this first complaint charged gender bias. As discussed infra, the
record demonstrates, however, that 11 October 2001 was the first
time Foster mentioned such bias, in an email to Solvay’s Human
Resources department.
That October, before Foster emailed the Human Resources
department, Herman decided to reorganize Solvay’s sales department,
an event that occurred almost yearly. Herman hoped it would help
streamline the department and improve internal relations. T h e
reorganization plan, which became effective in January 2002,
created a new management position that took the place of both
Managers, Managed Care. Herman did not consider Foster for the new
management position because he did not think Foster had the
requisite qualities and skills.
Foster was reassigned to a new position, Corporate Account
Executive (CAE). Ron Piela, Foster’s former subordinate, was named

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Area Manager; in Foster’s new CAE role, he reported to Piela.
Foster asserts Piela’s only prior management experience was working
at Pizza Hut. Solvay contends it chose Piela because he, unlike
Foster, had the necessary skills. Foster was offered a different
position, one that raised his salary by $2,800.
In June 2002, Foster complained to the Equal Employment
Opportunity Commission that he had been retaliated against for
reporting Herman’s discriminatory conduct. The EEOC found no
evidence of discrimination and issued a right-to-sue letter.
Foster continued to work for Solvay after filing this action
in late 2002. Due to changes within Solvay unrelated to this
action, Herman no longer supervised Foster. Beginning in early
2003, Foster was supervised by Pete Wardlaw; Wade Smith, who
replaced Herman in late 2002, supervised Wardlaw. Smith placed
Foster on a Performance Improvement Plan (PIP), starting in January
2003. No evidence suggests Smith was aware of the action at hand
when he implemented the PIP. Foster failed to meet several of the
PIP’s goals and was fired in May 2003.
Foster amended his complaint to claim he was terminated in
retaliation for filing the EEOC charge and this action. Summary
judgment was awarded Solvay in early 2005.
A summary judgment is reviewed de novo under Rule 56 of the
Federal Rules of Civil Procedure. E.g., Baton Rouge Oil & Chem.
Workers Union v. ExxonMobil Corp., 289 F.3d 373, 376 (5th Cir.

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2002). Such judgment is proper if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, 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(c). Evidence is
construed in the light most favorable to the non-movant. E.g., Kee
v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.), cert. denied, 534
U.S. 892 (2001). If a plaintiff fails to prove an essential
element of his claim, summary judgment must be granted. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A party opposing
summary judgment may not rest on the pleadings, but rather must
provide specific facts showing the existence of a genuine issue for
trial. E.g., Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998). Foster fails to demonstrate a genuine issue
of material fact.
For retaliation, the plaintiff must show: (1) he engaged in
protected activity; (2) an adverse employment action occurred; and
(3) the protected activity was linked to the adverse action. E.g.,
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). If the
plaintiff establishes a prima facie case, the burden of production
shifts to the defendant to demonstrate a legitimate, non-
retaliatory reason for the adverse employment action. Id. at 304-
05. If the defendant produces such evidence, “the focus shifts to
the ultimate question of whether the defendant unlawfully

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retaliated against the plaintiff”. Id. at 305. The ultimate
determination asks whether filing the protected activity was a but-
for cause of the retaliation. Pineda v. United Parcel Serv., Inc.,
360 F.3d 483, 487 (5th Cir. 2004) (stating that when the defendant
offers a nondiscriminatory reason for the adverse employment
action, the Fifth Circuit has consistently required the plaintiff
to prove that but for the discriminatory purpose, he would not have
been fired).
An employee engages in protected activity by (1) opposing an
employment practice made illegal by Title VII, or (2) if he has
“made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing" under Title VII. Long,
88 F.3d at 304 (citing 42 U.S.C. § 2000e-3(a)). Although the
underlying practice need not be illegal, the employee must at least
reasonably believe it to be so. Id.
Foster was at Solvay’s January 2001 National Business Meeting,
where the award was presented, when he first complained about
Berger-Barrali’s not receiving it. Nothing in the record, however,
supports Foster’s contention that he claimed gender discrimination
then.
As noted, Foster never claimed such bias until his 11 October
2001 email to the Human Resources department. That email said
Foster first thought Herman’s choice for the award was based on
personal bias, but that Foster changed his mind and “now

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[considered] it as an example of gender bias”. Therefore, the
district court correctly held Foster’s January 2001 activity was
not protected under Title VII.
Foster did, however, engage in protected activity in October
2001 when he claimed gender discrimination through his telephone
call and email to Solvay’s Human Resources department. In
addition, before he was fired, Foster engaged in protected activity
by filing a complaint with the EEOC and by filing this action.
Title VII addresses only ultimate employment actions, such as
“hiring, granting leave, discharging, promoting, and compensating”.
Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) (internal
citation omitted). Although Foster was told on 8 October 2001,
prior to sending the protected email, that he would not be
considered for the new CAE position, he was not reassigned until
January 2002. Foster was not a manager in this new position. The
loss of management responsibilities can arguably be seen as a
demotion or failure to promote, either of which are ultimate
employment actions. See Id. Therefore, as the district court held,
viewing the evidence in the light most favorable to the Foster, he
has established the second part of a prima facie Title VII
violation.
For a prima facie case of retaliation, Foster must also
demonstrate any adverse employment actions were based, in part, on
Solvay’s knowing about Foster’s protected activity. Sherrod v. Am.

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Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Because
Foster was told before making any gender discrimination claims he
would not be considered for the CAE position, he cannot demonstrate
his reassignment was based, in part, on his protected activity.
Solvay did not have to put on hold Foster’s previously planned job
reassignment simply because he subsequently engaged in protected
activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
272 (2001).
Foster was fired in May 2003, six months after filing this
action and nearly a year after filing his EEOC complaint. Contrary
to Foster’s contention, this time gap is too great to establish
retaliation based merely on temporal proximity. Id. at 273-74
(collecting cases) (stating time gap must be very close, and
discussing cases where three and four month gaps have been deemed
too long to establish a causal link).
Foster was fired because he failed to fulfill certain
responsibilities in his PIP. He was put on this plan on 24 January
2003, the same day Solvay filed its answer to this action. Foster
states complaints about his performance did not arise until after
he filed his EEOC complaint and this action, and, therefore, that
the PIP and his firing were in retaliation for protected activity.
No evidence suggests, however, that Smith, who instituted the PIP,
knew about the EEOC complaint or this action until February or
March 2003.

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The PIP included a written warning that failure to follow the
plan could result in termination. Uncontroverted evidence
demonstrates Foster failed to fulfill his duties under the PIP. It
was not enacted in retaliation for protected activity; Foster’s
termination for failure to follow the PIP was also not retaliation.
Because Foster would have been terminated regardless of his
protected activity, summary judgment was proper.
AFFIRM

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