DO NOT PUBLISH
Thanousinh Soulinthong, a female of Laotian and Chinese heritage, sued her former employer, TrustPoint International, for, among other things, retaliation and race, national origin, and gender discrimination under Title VII, 42 U.S.C. §§ 2000e-2, 3, and 42 U.S.C. § 1981. The district court granted summary judgment to TrustPoint on those claims.
Soulinthong began working for TrustPoint in July 2012, when Todd Tabor hired her as a Director of e-Discovery Client Solutions.
At some point during her employment, Soulinthong and Tabor were discussing hunting, and Soulinthong commented that people in her culture do not hunt for sport, and Tabor replied "why can't you be more like us." And one evening when Soulinthong was eating rice wrapped in seaweed for dinner, Tabor saw her meal and asked "why do you have to be so weird?" which Soulinthong believed was meant to highlight her cultural differences.
In late September 2012 a problem with one of Soulinthong's paychecks arose. Although it is unclear what exactly happened, Soulinthong was issued a check that the payroll manager, Jackie Jordan, did not know had been issued. Jordan realized that the check was missing from her office, believed that it had been stolen, and ordered a stop-payment on the check. When Soulinthong learned that the check had been cancelled, she emailed Watters, Tabor, and Mike Hawn, TrustPoint's CEO, to complain, stating that "I need it remedied today . . . before I can go forward with any work." Tabor, after rejecting Watters and TrustPoint's CFO's suggestion that he terminate Soulinthong, met with her to discuss the paycheck issue and to issue a verbal warning about her "disruptive" and "unprofessional" response to the incident. Tabor also directed Soulinthong to stop copying CEO Hawn on her emails. During that meeting, Soulinthong asked why her picture was not included on the TrustPoint website, and Tabor responded that no one would expect someone of Soulinthong's "coloring" to be on the webpage.
A few days later, on November 2, Soulinthong sent a sarcastic and disrespectful email to Watters after Watters could not confirm that an envelope carrying Soulinthong's paycheck had been postmarked by a certain date. Later that month, TrustPoint sent Soulinthong the calculation of amount she was owed as her yearly bonus and, disagreeing with that calculation, Soulinthong emailed Tabor, Hawn, and others to point out the problem in a tone that Tabor found disrespectful. And on November 26, after Tabor told Soulinthong to check with other members working on a large project about her planned vacation dates, Soulinthong responded by telling Tabor that those members "are not my supervisors" and were not required to check their vacation dates with her, and she did not "see what they would offer." Soulinthong again copied Hawn on that email. After consulting with Watters and TrustPoint's CFO, Tabor decided to fire Soulinthong on November 28, 2012.
Soulinthong sued TrustPoint for national origin and gender discrimination in violation of Title VII, race discrimination and retaliation in violation of Title VII and § 1981, state law breach of contract, and state law breach of the duty of good faith. TrustPoint moved for summary judgment, and the district court granted that motion as to Soulinthong's federal claims and dismissed without prejudice her state law claims. This is Soulinthong's appeal of the district court's entry of summary judgment on her federal claims.
TrustPoint contends that Soulinthong has failed to establish a prima facie case of discrimination on her race, national origin, and gender discrimination claims. We need not decide that issue because even if Soulinthong established a prima facie case, summary judgment on those claims was proper because she failed to establish pretext.
TrustPoint's asserted legitimate nondiscriminatory reasons for firing Soulinthong were that she acted in an unprofessional, disrespectful, and insubordinate manner toward other TrustPoint employees. As a result, the burden shifts back to Soulinthong who must "proffer sufficient evidence to create a genuine issue of material fact regarding whether each of [TrustPoint]'s articulated reasons is pretextual."
Soulinthong contends that Tabor's comments are significant evidence of pretext for race and national origin discrimination.
It appears from Soulinthong's deposition testimony that the food and hunting comments were made
Similarly, Soulinthong has failed to offer evidence showing that TrustPoint's proffered reasons for terminating her were a pretext for gender discrimination. The only evidence Soulinthong points to as supporting her gender discrimination claim is project manager Killian Connolly's comment in an email that John Palumbo, a male with less seniority than Soulinthong, needed to be the "man on the ground" when it came to a specific client. Connolly's email with the "man on the ground" comment addressed that the work for that client "is going to be very interactive and needs to be done in person," which went to the fact that Palumbo was based in Boston, where the client was located, while Soulinthong was based in Atlanta.
Soulinthong also contends that the district court erred in granting summary judgment to TrustPoint on her retaliation claims, which she based on her having complained to Watters early on in her employment about discriminatory treatment and then having been fired. Like Soulinthong's Title VII and § 1981 claims, the
If the plaintiff cannot show that the decision maker knew of the protected conduct, she may still be able to establish a prima facie case under the cat's paw theory of liability. Under that theory, Soulinthong may establish causation by showing that Tabor followed the biased recommendation of an employee with discriminatory animus without independently investigating the basis for the recommendation.
While Tabor consulted with Watters about whether termination was appropriate, Tabor made the final decision to terminate Soulinthong, and he did so after overruling Watters' earlier recommendation that he fire her based on the paycheck incident. As a result, Tabor did more than "rubber stamp" any recommendation Watters made to terminate Soulinthong. The evidence shows that he instead independently investigated the problems leading up to Soulinthong's termination. Because Soulinthong has failed to establish a causal link between her complaint and her termination, summary judgment to TrustPoint on her retaliation claims was proper.