To support White's sex claim, Tomosky's affidavit avers: "examples of sex discrimination include: a. Due to Sandy's being a pregnant black woman, Cheryl Moyer offered the position of Site Supervisor to Bruce King prior to Sandy's demotion." The affidavit further opines that "it is my belief that Sandra White was terminated for being a pregnant female." Taking these facts as true, we find that White has shown that she was replaced by a man, and has, therefore, made out a prima facie case of sex discrimination.
Because White has made prima facie cases of both race and sex discrimination, the burden of production switches to the Defendant to assert legitimate, non-discriminatory reasons for its actions. Metal Serv., 892 F.2d at 347. RHD argues that it legitimately demoted White for poor work performance, culminating in a surprise inspection that revealed 48 violations. White was given one week to fix the problems, but did not, so she was demoted. It supports this explanation with affidavit testimony by Moyer.
Pursuant to Rule 56(e), because affidavits are used to support RHD's case, White can rebut only with affidavits, depositions or answers to interrogatories. At the summary judgment stage, White need not prove that "the employer's purported reasons for its actions were false, but the plaintiff must criticize it effectively enough so as to raise a doubt as to whether it was the true reason for the action." Solt, 837 F. Supp. at 684 (citing Naas, 818 F. Supp. at 877).
This she has not done. White only provides her own and Tomosky's affidavit to support her claims. White's affidavit is simply a chronology of the events leading to this litigation. It does not make any comment on discriminatory motive or animus on RHD's part. Tomosky's affidavit only makes generalized assertions that White was discriminated against by RHD. It does not criticize the purported reasons for White's demotion (and/or termination) and does not contradict RHD's reasons so as to show pretext. Solt, 837 F. Supp. at 684; Josey, 996 F.2d at 638-39. Tomosky's examples are not enough to allow a reasonable jury to be able to rule that White has demonstrated by a preponderance of the evidence that either her race or her sex were determinative factors in her demotion and/or firing. McDonnell Douglas, 411 U.S. at 804. Due to the absence of evidence, White has failed to rebut RHD's proffered legitimate reasons, and accordingly, we GRANT Summary Judgment on Count III.
COUNT IV -- WILLIE MAE LEWIS
Dr. Willie Mae Lewis has sued RHD on the basis of the 1st, 5th, 13th and 14th Amendments pursuant to § 1981. She alleges that she was fired and then replaced by someone not in a protected class, allegedly because one RHD board member believed Lewis was not sociable enough in her initial interviews with RHD.
RHD concedes that Lewis has made a prima facie case of race discrimination. Because of this concession, the burden of production switches to RHD to assert legitimate, non-discriminatory reasons for Lewis's termination. Metal Serv., 892 F.2d at 347. RHD asserts, and supports with deposition testimony, that it was always hesitant about hiring Lewis because it had concerns about her ability to communicate with other staff and with RHD clients. RHD also asserts that because of those concerns, Lewis was only hired for a three month probationary period.
Finally, RHD provides deposition testimony to indicate that its initial fears about Lewis turned out to be justified and her term was accordingly not renewed. RHD's explanation is sufficient to show legitimate, non-discriminatory reasons for the termination and serves to rebut Lewis's prima facie case.
As a result, the burden of production returns to Lewis to show that RHD's proffered reasons are merely a pretext for discrimination. This is a difficult burden to carry. Fuentes, 32 F.3d at 765. To rebut, Lewis provides her affidavit, wherein she avers that Kiff Weyl, a Caucasian man who was hired as her job-share partner, was treated better than she in that he was given ample information about programs and resources before he began employment with RHD, but she was not. In addition, she avers that she and Weyl discussed the discrimination at RHD on several occasions and that he once told her, in front of Dr. Nancie Wolfe, that RHD was unfair to her and had problems with African Americans.
We find that this affidavit does not serve to rebut RHD's proffered legitimate reasons. One hearsay affidavit of a non-decision maker's belief that an organization is discriminatory does not create such "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" to make us disbelieve RHD's proffered reasons. Fuentes, 32 F.3d at 765. Accordingly, we GRANT Defendant's Motion for Summary Judgment on Count IV.
An appropriate Order follows.
AND NOW, this 7th day of March, 1995, upon consideration of Defendants' Motion for Summary Judgment and responses thereto, the Motion is hereby GRANTED.
BY THE COURT:
J. CURTIS JOYNER, J.