Full opinion text
MEMORANDUM AND ORDER CRONE, United States Magistrate Judge. Pending before the court is Defendants The Kroger Co. (“Kroger”) and Charles Hembree’s (“Hembree”) Motion for Summary Judgment (# 18). Kroger and Hem-bree seek summary judgment on Plaintiff Elaine Martin’s (“Martin”) claims of racial and sexual discrimination and retaliation under the Texas Commission on Human Rights Act (“TCHRA”) as well as tortious interference with existing and prospective business relations. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted. I. Background Kroger is a retail grocery chain with a number of stores in the Houston, Texas, area. Martin, an African-American female, began her employment with Kroger in August 1992 in the company’s management training program after answering an advertisement for an engineering position. Martin graduated from Prairie View A & M University in 1986 with an electrical engineering degree. In March 1993, Hem-bree, the manager of the Facility Engineering Department, offered her a position as a facility engineer. Kroger’s Engineering Department is responsible for the construction and remodeling of- Kroger grocery stores, with facility engineers serving as the project managers on the various construction and remodeling projects. In this capacity, facility engineers are responsible for planning, organizing, and estimating costs of the project; interpreting specifications; soliciting bids from subcontractors; ordering equipment and scheduling its placement; acting as a liaison between Kroger and city officials; ensuring that all governmental codes and requirements are met in a timely fashion; and communicating regularly with the project team, including scheduling and presiding over weekly construction meetings. The project manager bears the responsibility for the organization, oversight, and management of all aspects of the construction project, without regard to whether a general contractor is also used. In her affidavit, Martin describes how Hembree assisted her in securing a position in Kroger’s Engineering Department: I ... answered Kroger’s classified ad for a Facility Engineer. I spoke with Charles Hembree several times about the job, and interviewed with a number of Kroger employees. Hembree informed me that I had not been selected to fill the vacancy, and that a person with better qualifications than me had been hired. However, Hembree asked if I would be interested in training to become a store co-manager, which had no relation to the engineering department.... I needed work, in any capacity, and agreed to enter Kroger’s store management training program in 1992, even though it was outside of my field and I had had no prior training, background or experience in such a position. While I was in Kroger’s store management training program, Hembree contacted me and asked if I was interested in transferring to Facility Engineering. The vacancy that Hembree contacted me about was the same job that I had applied for and had been rejected previously. T. Stevens Brown, the person that Hembree had described to me as ‘better qualified,’ was removed from that position because he did not have an engineering degree. (T. Stevens Brown, and I went to the same college, and I know that he did not complete his degree program.) Martin began working as a facility engineer on March 21, 1993. In his affidavit, Hembree explains his basis for offering her the position: “I was aware that [Martin] did not have much experience in project management or the retail industry; however, I felt Ms. Martin was capable of gaining the knowledge necessary to become an effective manager and engineer.” Throughout her employment with Kroger, Martin’s performance as a facility engineer was problematic. Her first employee performance appraisal, dated June 10, 1994, reflects below-average ratings in several categories. One such category is “Leadership,” which addresses how the employee leads “individuals or groups to accomplish a task or accept an idea; ability to help a group or an individual arrive at a solution or goal.” Martin’s below-average rating of “Developmental” is followed by comments stating, “Elaine has a rather forceful, directive style. This has served her effectively without causing hostility in most cases. There is room in her leadership style to develop a more participative [sic] approach. She should understand the tasks of subordinates more thoroughly.” The “Personal Impact” category assesses the employee’s “[ajbility to create a good impression on others by commanding attention, respect, and showing confidence.” The comments following Martin’s “Developmental” rating read, “Elaine is able to gain impact but usually has to do it through force of will. She must gain the reputation of knowing what to do, how to do it, and when. By being knowledgeable in these areas, the respect will follow.” Finally, the “Problem Analysis” category measures the employee’s “[ajbility to identify, evaluate, and assimilate factors essential to analyzing a problem for a solution.” Martin’s “Developmental” rating is followed by comments stating, “Elaine often fails to properly analyze a problem because she does not link all sources of information together. She should ask more questions such as ‘who, what, when, where, and how.’ By listening to these answers, then assimilate the data to see if it makes sense.” Hembree’s affidavit offers additional insight into his June 1994 assessment of her performance: At that time, I considered Ms. Martin to be still relatively new to the department and to have issues which were developmental in nature. In other words, I felt that Ms. Martin’s lack of knowledge and experience in the retail construction field hindered her from performing at a higher level. I apprised Ms. Martin of certain deficiencies and the need for education in business administration and construction technology. I suggested Ms. Martin enroll in a seminar on interpreting blueprints which she took in July 1994. Hembree contends that he “remained optimistic that [Martin] could overcome the knowledge deficit she had.” When Martin was evaluated one year later, on June 13, 1995, she received more “Developmental” ratings, including below-average ratings in “Leadership,” “Personal Impact,” and “Problem Analysis.” The comments following the “Leadership” category state, “Elaine has improved in this area. Her style is still rather forceful and direct. She recently completed ‘Models for Management’ seminar. This should help her in the future to develop a more participative [sic] style.” Under the “Personal Impact” category, the comments read, “Elaine displays a limited effect on the direction or the decision making of others. She is not sought after for input other than as needed to accomplish [the] task at hand. She does have some impact because of a dominant type behavior but does not command attention through confidence.” Finally, the comments following the “Problem Analysis” category state, “Elaine sometimes fails to see the relevance of different factors in properly analyzing a situation. She must continue to probe more deeply when developing a plan. Ask more open ended questions. Discuss solutions to verify understanding.” A typed statement prepared by Hem-bree, signed by both Hembree and Martin, is attached to the evaluation, stating: During Elaine’s early development in this department, her knowledge of su-permarketing, and construction was very limited. These issues were discussed during the last performance evaluation. She has worked hard to try to learn these details and has made some progress. Elaine must continue to develop these skills. I believe that Elaine can become an effective manager in this department; however, she has developed an impression in many managers that she lacks the knowledge and skills necessary to adequately manage a substantial remodel project. Although her project results are of good quality, she does not get the credit that she perhaps is due. Store managers felt that they had to do more project administration than necessary in order to complete their projects. Phone calls, equipment follow-ups, scheduling of merchandisers and other communication issues are mentioned as hindrances to effective job performance. There is some concern that Elaine does not place enough priority on the importance of being available or of maintaining contact with each project. Unfortunately, these impressions precede her into her next project assignment and as a result store management may look for faults that might be overlooked in someone without this reputation. ‡ ‡ # # ‡ I continue to enjoy working with Elaine. I am somewhat disappointed that even though there have been improvements in several areas, I continue to receive comments about her communications, her responsiveness to stores, and her ability to control a project. Last year, many of these comments could have been overlooked due to the fact that Elaine was new to Kroger and as yet had not fully learned all the facets of her job. However, Elaine has spent six months in the co-manager training program and then another two years in Facility Engineering. These comments should be disap- pearing by now. The fact that they have persisted will make the demands of Elaine’s job even tougher than before. The statement also refers to two seminars that Kroger arranged for Martin to attend to further her education. These conferences provided training to Martin in engineering and construction of retail stores and supermarkets. By letter dated October 31, 1995, Hembree recommended that Martin receive 250 stock options because her performance had significantly improved. Due to an extended leave of absence in 1995, Martin did not receive a performance evaluation in 1996. Hembree, however, describes Martin’s performance during this time period in his affidavit: I found that she continued to display a limited knowledge of supermarketing and construction with no sign of improvement. ... I was aware of several instances in which she failed to order the correct equipment for a project; she ordered duplicate equipment; she ordered unnecessary equipment which had to be returned; and, she failed to order the appropriate sizes and types of equipment, which resulted in delays. Hembree also states that, despite her tenure, Martin continued to perform at a level below that of the other engineers in the department. Martin’s evaluation dated May 30, 1997, again reflected “Developmental” ratings, including below-average ratings in “Leadership,” “Personal Impact,” and “Problem Analysis.” Hembree’s typed statement attached to the evaluation elaborates on her performance: Elaine will soon complete her fifth year in the Facility Engineering department. She continues to be assigned within the walls remodels and new store projects. Her projects are usually on schedule and within budget. * * * * * * [The] ability to be friendly and likable is a positive attribute; however, when combined with her limited knowledge of supermarketing and construction may actually contribute to her lack of growth in these areas. Elaine has had supporters — both within Kroger and among our vendors — that have wanted her to succeed. Believing that Elaine might not know how her work affects the store’s operation, or that she might not know the technical aspects of construction, these supporters have done what needed to be done on her behalf to complete a project.... As a result of this other departmental involvement, her projects have succeeded. If Elaine were placed into a situation where she did not have participants that were knowledgeable and supportive, her current level of knowledge would prevent her from delivering a successful project. Her current projects could show substantial improvement in both timing and costs if Elaine were more knowledgeable about the items just discussed. Elaine must spend a portion of each week learning the technical aspects of her job if she is to make continued progress. Elaine must also continue to develop her skills of Planning and Organizing. When presented with a well developed plan, she does a good job of execution. When left to her own devices; however, Elaine’s projects seem to be helter-skel-ter. Job schedules are prepared as equipment becomes available and not in a logical, convenient order. Forward thinking about the upcoming tasks and knowledge of their intricacies must be present in order to develop a smoothly flowing schedule that completes itself in a manner most satisfying to everyone involved. The ordering of refrigerated equipment seems to be one example of the deficiencies in this skill. Equipment is sometimes ordered before the fixture plan or the schedule is finalized. There have been instances where equipment arrived that was not needed and had to be returned, equipment that was ordered incorrectly, and shortages of equipment that caused delays in completion of project elements. One would expect this sort of performance from someone who is inexperienced in remodels, but after as many years as Elaine has been in this job, these elemental processes should be better. Elaine must improve in her ability to organize and coordinate those particulars that impact her projects and to evolve a plan for successful completion. H< ifc ❖ ‡ H* % The support that Elaine has enjoyed over her career has begun to diminish and will continue to dwindle if her skills of Planning and Organizing as well as her knowledge of the business do not improve significantly in the current year. Her continued support within the organization has come from the recognition that Elaine is making any and all efforts toward doing a ‘first class’ job; however, there is sufficient indication that others are becoming weary of bolstering Elaine on a continuing basis. This places her in a very precarious position that must be secured by immediate improvements in these skills in order to be assured of a future with this organization in the following year. ❖ * ❖ Hi * * I continue to enjoy working with Elaine. It is still disappointing that these realities and perceptions remain after almost five years. Elaine must continue to bring forth the efforts and improvements that are required of her. Martin and Hembree both signed this statement. To improve quality and reduce expenses, Kroger began remodeling its stores with the use of primarily in-house crews in 1997. The Kroger store located on Mont-rose Street in Houston, Texas, was the first in-house project. Randy Kottlowski (“Kottlowski”), a white male facility engineer, managed the Montrose remodeling project. Kottlowski, formerly the assistant manager of the department, was given this opportunity after he was demoted to the position of facility engineer and placed on probation on February 5, 1997, due to perceived performance problems. Upon completion of the Montrose project, Kroger estimated that it had saved approximately $100,000 through the use of an in-house crew. In September 1997, the Kroger store in Seabrook, Texas, was identified as the next in-house remodeling project. Hembree assigned this project to Martin. In the capacity of project engineer, she was responsible for preparing a cost estimate and hiring subcontractors' for the plumbing, electrical, floor tile, carpet, and painting. In addition, she was responsible for obtaining all the necessary city permits and complying with the applicable building codes. Martin was also required to review the architect’s plans and familiarize herself with the specifications for the project. Hembree assigned Terry Hildebrandt (“Hildebrandt”), Kroger’s lead carpenter, as the superintendent of the Seabrook project. As superintendent, Hildebrandt was responsible for overseeing the daily construction and managing the various craft crews. He had successfully served as the superintendent of the Montrose project. As the project engineer, Martin was Hilde-brandt’s superior. The Seabrook project was scheduled to begin on September 15, 1997. The commencement of the project was delayed, however, when Martin failed to obtain the necessary building permit in advance of the planned start date. Unlike the Mont-rose project, the record reflects that the Seabrook project was fraught with problems. Ida Spearman (“Spearman”), the Seabrook store manager, describes some of these difficulties in her affidavit: During the course of the project, I experienced great difficulty in contacting and communicating with Ms. Martin. She often did not return my telephone calls, pages or emails or was untimely in doing so. Although Ms. Martin was very nice and likeable, she appeared to lack organization and management of the project. She seemed to have no control over the construction meetings or the subcontractors and crew. The plans which we were given by Ms. Martin were not accurate for the project which interfered with the work of the store merchandisers and other crews. I felt she had poorly coordinated the project. On several occasions I discussed my concerns regarding Ms. Martin’s handling of the project with Charles Hembree. Several times the wrong equipment or surplus equipment showed up at the store. My understanding was that Ms. Martin was responsible for ordering the equipment. For instance, two sets of Huggieland play equipment were ordered and delivered to the store. Ms. Martin said she would take care of the problem, however she never did. Additionally, Ms. Martin ordered the wrong kind of bascarts for the store despite my providing her with information for the proper carts. I had to send the carts back. Ms. Martin was supposed to contact the bank which had an ATM machine in our store in order to arrange for the machine to be picked up. I was forced to handle this task as well. I had numerous problems with Anthony Gaston, the flooring subcontractor hired by Ms. Martin. Mr. Gaston failed to show up when promised, would not complete the work he started and would leave supplies in the public areas of the store. For instance, Mr. Gaston and his workers were supposed to lay new carpet in the store’s offices on December 31, 1997. My employees and I moved the furniture after Mr. Gaston and his crew failed to show up. When Mr. Ga-ston promised the crew would do the work on January 1, [1998], we again moved the furniture in preparation. Mr. Gaston called at 7:00 p.m. that evening to say that he could not locate his carpet people. The work was finally completed on January 3, [1998]. I regularly advised Ms. Martin of his poor workmanship, but to no avail. I also advised Charlie Hembree of the poor management and oversight by Elaine Martin of this part of the remodel. By October 1997, news of Martin’s problems at Seabrook reached Dave Burkart (“Burkart”), Vice President of' Operations at Kroger. Around October 17, 1997, Bur-kart met with George Anderson (“Anderson”), Kroger’s Manager of Human Resources, to discuss the deficiencies in Martin’s performance. In his affidavit, Anderson recalls the meeting: Dave Burkart ... came to see me about the Seabrook project. He indicated that the quality of Ms. Martin’s involvement in the project was less than desirable and that store management had complained. I sent an email to Charles Hembree regarding my visit from Mr.-Burkart. On November 25, 1997, Hembree and Anderson met with Martin and presented her with a supplemental performance evaluation. In the typed evaluation, Hembree outlines some of the problems associated with the Seabrook project: On May 30, 1997, Elaine’s performance for 1996 was presented and discussed with her. This performance review noted skill deficiencies in several areas that were to show immediate improvement if Elaine were to be assured of a future with this organization. Since that time, Elaine has been assigned several projects in which to demonstrate adequate abilities of organizing and coordinating. Of her current projects, the within-the-walls remodel of [Seabrook] illustrates most clearly Elaine’s lack of development in the elemental processes necessary for the successful completion of a construction project. Elaine’s handling of this project continues to demonstrate the deficiencies that have been discussed on many past projects. Others both within the Kroger organization and among those outside express the same observations. The support that Elaine has enjoyed in the past appears to have been totally withdrawn based on these last few incidents. Elaine’s performance is currently unsatisfactory and cannot continue. Although this is very disappointing, there remains no other choice but to place Elaine on probation for the next ninety days. At the conclusion of this period, Elaine’s performance will once again be reviewed. Failure to perform at a satisfactory level will result in immediate termination of employment. Martin was not receptive to Hembree’s comments and refused to sign the supplemental evaluation. Anderson describes the meeting with Hembree and Martin in his affidavit: Ms. Martin became extremely upset and angry during the meeting and refused to sign the Supplemental Performance Evaluation. She indicated that she did not intend to change her performance and that Kroger would just have to fire her at the end of the probation period. She then made reference to having been referred to by a racial epithet, and she also made a comment about “Terry and his racist ass.” However, when we questioned her about who had allegedly made racial slurs, Ms. Martin absolutely refused to provide any more information. She made a statement to the effect that it would “all come out in court.” She then left the office. Prior to that time, I had not been notified by Ms. Martin or anyone else that any Kroger employees or subcontractors had made racially derogatory comments. Furthermore, Ms. Martin never complained of sex or gender-based discrimination in that or any other meeting. On January 26, 1998, Martin was ill and did not report to work. The following day, she was involved in an automobile accident. On February 6, 1998, Martin provided a medical release which indicated that she would not be returning to work until February 20, 1998. Maria Gutierrez-Webber (“Gutierrez”), a Kroger Human Resources assistant, wrote to Martin on March 6, 1998, explaining: According to our records, you have been off from work on an expired leave of absence since March 2,1998. Company policy concerning leave of absences is as follows: “All leaves of absence for longer than 14 'Consecutive days, except military leaves in accordance with federal laws, must be requested in writing and approval or denial by management communicated to the employee in writing.” Company policy conceminy extensions for leaves for illness, injury, or prey-nancy, must be requested in writiny with a supportiny medical statement from the attendiny physician prior to each expiration date to the approved leave. It is necessary for you to complete the enclosed leave of absence form and attach a statement from your attending physician, indicating all of the following: 1. Date of disability (in conjunction with approved leave that began 08/01/97) 2. Date of initial treatment 3. Reason for disability (nature of illness) 4. Anticipated return to work date. Please be advised that is [sic] this requested information is not received in Human Resources within seven (7) days from receipt of this letter that you are subject to termination for failure to return from a leave of absence .... On March 26, 1998, Gutierrez sent another letter to Martin, stating: I received the documents you supplied in support of extending your leave of absence. These documents do not include a date for your release to return to work, as required by the company’s leave of absence procedures. Failure to do so, within 72 hours from receipt of the letter will result in termination for failure to return from a leave of absence. The record does not disclose whether Martin ever responded to this letter. Although Martin asserts in her affidavit that she worked sporadically after her automobile accident, this assertion conflicts with her deposition testimony: Q: ... Ms. Martin, we were talking about how long [you] were out after your car accident before your doctors released you to return to work. Isn’t it correct that you didn’t return to work at Kroger after you had the car accident? A: Right. The Fifth Circuit has consistently held that “[i]t is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996); see Crowe v. Henry, 115 F.3d 294, 298 n. 4 (5th Cir.1997). Therefore, to the extent that Martin’s affidavit is inconsistent with her deposition testimony, the court cannot consider it. Hembree, Brett Smollen (“Smollen”), a facility engineer who was later promoted to assistant manager, and Anderson confirm that Martin did not return to work until April 28, 1998. In any event, Martin’s employment with Kroger was terminated when she reported to work that day. Martin filed a charge of employment discrimination with the Texas Commission on Human Rights (“TCHR”) and the Equal Employment Opportunity Commission (“EEOC”) on December 9, 1997, asserting claims of race and sex discrimination as well as retaliation under the TCHRA. She amended her charge on February 5,1998, to expand on her retaliation claim. At her request, Martin received a right-to-sue notice on March 20, 1998, and instituted this action in state court on May 14, 1998. Kroger removed the case to federal court on July 6, 1998, based on diversity of citizenship. In her original petition, Martin sought recovery for race and gender discrimination and retaliation'in violation of the TCHRA and also asserted claims alleging negligent retention, wage and hour violations, tortious interference with existing and prospective business relations, and intentional infliction of emotional distress. On July 22, 1999, after Kroger filed its motion for summary judgment, Martin dismissed her claims for negligent retention, wage and hour violations, and intentional infliction of emotional distress. Thus, Martin currently seeks to recover for race and gender discrimination and retaliation under the TCHRA as well as for tortious interference with existing and prospective business relations. II. Analysis A. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The parties seeking summary judgment bear the initial burden of informing the court of the basis for their motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm’n, 123 F.3d 321, 324 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). The moving parties, however, need not negate the elements of the nonmovant’s case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the evidence must be construed “in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes.” Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir.1993)); see Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir.1997), cert. denied, — U.S. -, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Hart v. O’Brien, 127 F.3d 424, 435 (5th Cir.1997), cert. denied, — U.S. -, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir.1997). “ ‘The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.’ ” Reves v. Ernst & Young, 507 U.S. 170, 190 n. 3, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); see Marshall, 134 F.3d at 321. Nonetheless, “ ‘only reasonable inferences can be drawn from the evidence in favor of the nonmoving party.’ ” Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (emphasis in original). “If the [non-moving party’s] theory is ... senseless, no reasonable jury could find in its favor, and summary judgment should be granted.” Id. at 468-69, 112 S.Ct. 2072. The nonmovant’s burden is not satisfied by “some metaphysical doubt as to material facts,” conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or “only a scintilla of evidence.” Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324. “In such a situation, there can be ‘no genuine issue as to any material fact’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. B. Claims Brought Under The TCHRA Martin asserts race and gender discrimination' claims under the TCHRA against Kroger and Hembree. The TCHRA provides: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates against an individual in connection with compensation or the terms, conditions, or privileges of employment; or (2) limits, segregates, or classifies an ■ employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. Tex.Lab.Code Ann. § 21.051. “The legislature drafted the TCHRA to ‘correlate] state law with federal law in the area of discrimination in employment.’ ” Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (quoting Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991)); accord NME Hosp., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.1999); see Thompson v. City of Arlington, 838 F.Supp. 1137, 1153 (N.D.Tex.1993); Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328, 1345 (S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988). The statute specifically states that one of its purposes is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C. Section 2000e et seq.).” Tex.Lab.Code Ann. § 21.001; see NME Hosp., Inc., 994 S.W.2d at 144; Caballero v. Central Power & Light Co., 858 S.W.2d 359, 361 (Tex.1993); Schroeder, 813 S.W.2d at 485; Passons v. University of Tex. at Austin, 969 S.W.2d 560, 563 n. 4 (Tex.App.—Austin 1998, no pet.); Gold, 960 S.W.2d at 380. In keeping with the expressed legislative intent, the TCHRA is interpreted in a manner consistent with federal laws prohibiting employment discrimination. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996); see also Elstner, 659 F.Supp. at 1345. “In analyzing Plaintiffs claims under the Texas Commission on Human Rights Act, the court utilize[s] the same analysis as provided by the ADEA and Title VTI.” Deaver v. Texas Commerce Bank, 886 F.Supp. 578, 585 (E.D.Tex.1995), aff'd, 79 F.3d 1143 (5th Cir.1996) (citing Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex.App.—Houston [1st Dist.] 1993, writ denied)); see Gifford v. Lone Star Steel Co., 2 F.Supp.2d 909, 911 (E.D.Tex.1997); Caballero, 858 S.W.2d at 361. Indeed, the Texas Supreme Court has observed that, as Texas courts have had little opportunity to interpret the TCHRA, it is appropriate to seek guidance from cases interpreting Title VII. See Specialty Retailers, Inc., 933 S.W.2d at 492; Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 232 (Tex.1993). Therefore, the analysis of Martin’s claims under the TCHRA is identical to that applied to similar claims brought under Title VII. See Colbert v. Georgia-Pacific Corp., 995 F.Supp. 697, 700 (N.D.Tex.1998). “Because the TCHRA is the state counterpart to Title VII, the same standards apply.” Allison v. City of Fort Worth, 60 F.Supp.2d 589, 593 (N.D.Tex.1999) (citing Farrington, 865 S.W.2d at 251; Schroeder, 813 S.W.2d at 485). 1. Statute of Limitations The TCHRA establishes a comprehensive administrative review system for obtaining relief from unlawful employment practices. See Schroeder, 813 S.W.2d at 485; Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex.App.—Austin 1990, no writ). Before suing for redress, an employee must exhaust the administrative remedies available under the Act. See Caballero, 858 S.W.2d at 360; Schroeder, 813 S.W.2d at 486. A person claiming to be aggrieved by an unlawful employment practice must file a complaint with the TCHR within 180 days of the alleged discriminatory act. See Tex.Lab.Code Ann. § 21.202(a) (“A complaint under this sub-chapter must-be filed not later than the 180th day after the date the alleged unlawful employment practice occurred”); Specialty Retailers, Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 486; Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41 (Tex.App.—Austin 1998, no pet.); O’Bryant v. City of Midland, 949 S.W.2d 406, 417 (Tex.App.—Austin 1997, pet. granted); Vincent v. West Tex. State Univ., 895 S.W.2d 469, 473 (Tex.App.—Amarillo 1995, no writ); Eckerdt, 802 S.W.2d at 71. These requirements ensure that “the Commission [has an] opportunity to investigate the allegations, informally eliminate any discrimination, and minimize costly litigation.” Vincent, 895 S.W.2d at 473. The time limit for filing a complaint with the Commission is mandatory and jurisdictional. See Specialty Retailers, Inc., 933 S.W.2d at 492; Schroeder, 813 S.W.2d at 488; O’Bryant, 949 S.W.2d at 417; Vincent, 895 S.W.2d at 473. State law claims of employment discrimination are time-barred when filed after the 180-day period, while the same claims brought under federal law would be timely if filed within 300 days of the alleged discriminatory conduct. See Pope v. MCI Telecommunications Corp., 937 F.2d 258, 263-64 (5th Cir.1991), cert. denied, 504 U.S. 916, 112 S.Ct. 1956, 118 L.Ed.2d 558 (1992). The courts, however, have recognized an equitable exception “ ‘ “where the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.” ’ ” Webb v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir.1998) (quoting Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989) (quoting Abrams v. Baylor College of Med., 805 F.2d 528, 532 (5th Cir.1986))); see Wal-Mart Stores, Inc., 979 S.W.2d at 41. In order to extend the statute of limitations under this exception, known as a continuing violation, the plaintiff must show a series of related acts, one or more of which falls within the limitations period. See Huckabay v. Moore, 142 F.3d 233, 238-39 (5th Cir.1998) (citing Messer, 130 F.3d at 134-35); Webb, 139 F.3d at 537; Waltman, 875 F.2d at 474; Wal-Mart Stores, Inc., 979 S.W.2d at 41; see also Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). “Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a, series of discriminatory acts. He must show an organized scheme leading to and including a present violation.” Huckabay, 142 F.3d at 239; see Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir.1983). “[I]t is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action.” Huckabay, 142 F.3d at 239; see Messer, 130 F.3d at 135; Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1561 (5th Cir.1985). “A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period.” Sweeney v. West, 149 F.3d 550, 556 (7th Cir.1998) (citing Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir.1997) (citing Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481-82 (3d Cir.1997))); Taylor v. FDIC, 132 F.3d 753, 765 (D.C.Cir.1997); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir.1996); Berry, 715 F.2d at 981. Application of this theory relieves a plaintiff from the burden of proving that the entire violation occurred within the limitations period, as long as she can show that at least one of the alleged discriminatory acts occurred within the applicable time period. See Huckabay, 142 F.3d at 238 (citing Messer, 130 F.3d at 135); Webb, 139 F.3d at 537. The Fifth Circuit has adopted a multi-factor test to assess whether a continuing violation is implicated. See Huckabay, 142 F.3d at 239; Berry, 715 F.2d at 981. These factors include subject matter, frequency, and permanence: This inquiry, of necessity, turns on the facts and context of each particular case. Relevant to the determination are the following three factors, which we discuss, but by no means consider to be exhaustive. The first is subject matter. Do the alleged facts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence which should trigger an employee’s awareness and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? Id.; accord Huckabay, 142 F.3d at 239. “Importantly, however, the particular context of individual employment situations requires a fact-specific inquiry that cannot easily be reduced to a formula.” Id. “The core idea of the continuing violation theory is that ‘equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated.’ ” Webb, 139 F.3d at 537 (quoting Glass, 757 F.2d at 1560-61). “ ‘The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.’ ” Id. (quoting Glass, 757 F.2d at 1561 (citations omitted)); see also Messer, 130 F.3d at 135; Abrams, 805 F.2d at 534. If a plaintiff knows or with the exercise of reasonable diligence would have known that she suffered from discrimination, she “may not sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one.” Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir.1993). Thus, as the First Circuit noted: A knowing plaintiff has an obligation to file promptly or lose his claim. This can be distinguished from a plaintiff who is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern. Sabree, 921 F.2d at 402; Martin v. Frank, 788 F.Supp. 821, 826 (D.Del.1992). In the case at bar, it is undisputed that Martin waited until December 9, 1997, to file a charge of discrimination with the EEOC. Therefore, unless a continuing violation is established, Martin may only recover for conduct that occurred on or after June 9, 1997, 180 days before the filing of her charge. In her affidavit, Martin states: I observed and experienced the effects of offensive racial and/or sexist communications and actions throughout my employment with Kroger. For example, Nancy Taylor, a white Co-Manager stated on or about October 18, 1992 that she needed to “nigger-rig” a copier because she could not get it to work. Another Kroger employee indicated to Taylor that she should watch her language because I was present, but Taylor replied that she did not care about me standing there.... My store management training program mentor singled me out and told me on or about November 11, 1992 that I would always have problems at Kroger, that I probably would not be “good enough,” and that I had a slim chance of ever succeeding in employment with Kroger. Others m the store management training program at that time were not given similar discouraging advice. On or about January 20, 1993, Store Manager Clif Shears (white) told me that my degree did not mean anything in the eyesight of many within Kroger’s organization and that I would not receive any special privileges because of my race.... Additionally, in 1993, Randy Kotlowski [sic] (white), an Engineer, asked me if my recently deceased father lived in [the] same household with is [sic] children, whether he had insurance, and whether he had a job. In February 1996, during a work-related conversation between me and Co-Manager Freddy Aguilar (Hispanic), Aguilar told me “I don’t give a damn that your ass is black” and said that “I will knock your black ass out.” I reported each of these statements to Hembree and other Kroger employees such as Linda Murphy (black) and Roman Williams (black). Not only was I subjected to- offensive racist and sexist communications and behavior by Kroger employees, I also had to endure such treatment from contractors on the various projects that were assigned to me.... These assertions indicate actual knowledge of perceived discriminatory treatment for over five years before Martin filed her charge of employment discrimination. See Waltman, 875 F.2d at 476. The events as Martin describes them would have alerted the average lay person to act to protect her rights. See Alldread v. City of Grenada, 988 F.2d 1425, 1432 (5th Cir.1993). “A knowing plaintiff has the obligation to file promptly or lose [her] claim.” Smith v. Bath Iron Works Corp., 943 F.2d 164, 166 (1st Cir.1991). If Martin believed that Kroger was discriminating against her, she should have reacted well before December 1997. “Waiting to see what would happen next was pointless; the harm, if any, was already inflicted.” Rush, 113 F.3d at 483. Accordingly, the continuing violation theory is not available to Martin, and consequently, her claims of racial and sexual discrimination and retaliation based on events occurring prior to June 9, 1997, are time-barred. 2. Individual Liability of Supervisors A review of the record reveals that Martin’s claims against Hembree arise solely from his actions as a supervisory employee of Kroger. Under Texas law, employees cannot be held personally liable under the TCHRA, as the Act does not create a cause of action against supervisors or individual employees. See Thompson, 838 F.Supp. at 1153; City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex.App.-Austin 1992, no writ). Similarly, it is well settled in the Fifth Circuit that individual employees, even those functioning in a supervisory capacity, cannot be held personally liable under Title VII, as they are not “employers” as that term is defined in Title VII. See Grant v. Lone Star Co., 21 F.3d 649, 652-53 (5th Cir.), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); accord Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451 n. 2 (5th Cir.1994); Clanton v. Orleans Parish Sch. Bd., 649 F.2d 1084, 1099 (5th Cir.1981). Here, Martin has submitted no evidence to indicate that Hembree qualifies as an employer for the purposes of liability under the TCHRA. Among the various parties subject to liability under the TCHRA, the Texas Legislature could have made an individual employee committing or engaging in discriminatory acts hable for damages. It did not. ■ Therefore, Martin’s employment discrimination and retaliation claims against Hembree in his individual capacity must be dismissed for failure to state a claim upon which relief can be granted. C. Race and Gender Discrimination Under The TCHRA 1. Burden of Proof In McDonnell Douglas and Bur-dine, the United States Supreme Court outlined the evidentiary framework generally applicable to employment discrimination cases. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This method of analysis is utilized for both Title VII and TCHRA claims. See Williams, 98 F.3d at 180; see also Schroeder, 813 S.W.2d at 485. Where, as here, there is no direct evidence of discrimination, the plaintiff must initially establish a prima facie case by satisfying a multi-factor test from which a discriminatory motive may be inferred, thus creating a rebuttable presumption of intentional discrimination. See Wallace, 80 F.3d at 1047 (citing Meinecke v. H & R Block, 66 F.3d 77, 83 (5th Cir.1995)); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir.1994) (citing Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089). “ ‘To establish a prima facie case, a plaintiff need only make a very minimal showing.’ ” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.1996) (quoting Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir.1985)). Once the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate — but not prove — a legitimate, nondiscriminatory reason for its employment decision. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Davis, 14 F.3d at 1087; see also Marcantel v. Department of Transp. & Dev., 37 F.3d 197, 199 (5th Cir.1994). “The employer must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, ‘if believed by the trier of fact,’ would support a finding that unlawful discrimination was not the cause of the employment action.” Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir.1999) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). If the employer meets its burden, the prima fa-cie case is dissolved, and the burden shifts back to the plaintiff to establish that the reason proffered by the employer is merely a pretext for discrimination. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Travis v. Board of Regents, 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998); Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir.1997); Marcantel, 37 F.3d at 200; Moham v. Steego Corp., 3 F.3d 873, 875 (5th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). To demonstrate a “pretext for discrimination,” the plaintiff must show both that the employer’s proffered reason is false and that discrimination was the real reason for its actions. See Hicks, 509 U.S. at 515, 113 S.Ct. 2742. “The plaintiff now must have ‘ “the full and fair opportunity to demonstrate,” through presentation of [her] own case and through cross-examination of the defendant’s witnesses, “that the proffered reason was not the true reason for the employment decision,” ’ and that unlawful discrimination was.” Bauer, 169 F.3d at 966 (quoting Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089)). At all times, however, the plaintiff has the ultimate burden to prove intentional discrimination. See Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Marcantel, 37 F.3d at 200. The Fifth Circuit has formulated the plaintiffs burden under Hicks as one of establishing that the employer’s nondiscriminatory reason is not credible and that an unlawful discriminatory intent motivated the employer’s action. See Walton v. Bisco Indus., Inc., 119 F.3d 368, 370 (5th Cir.1997); Polanco v. City of Austin, 78 F.3d 968, 977-76 (5th Cir.1996); Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1249 (5th Cir.1995). “Under Hicks, ‘[i]t is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.’ ” Id. (quoting Hicks, 509 U.S. at 519, 113 S.Ct. 2742); see Walton, 119 F.3d at 370. “The question is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995); accord Odom v. Frank, 3 F.3d 839, 850 (5th Cir.1993); Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991). In the context of a motion for summary judgment, “a jury issue will be presented and a plaintiff can avoid summary judgment ... if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer’s stated reasons was what actually motivated the employer and (2) creates a reasonable inference that [plaintiffs protected status] was a determinative factor in the actions of which plaintiff complains.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996); see Ontiveros v. Asarco, Inc., 83 F.3d 732, 734 (5th Cir.1996). The burden-shifting approach may be dispensed with altogether, however, if the plaintiff is able to .demonstrate intentional discrimination by direct evidence of discriminatory motive. See Wallace, 80 F.3d at 1047-48; Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir.1987); Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir.1980). 2. Prima Facie Case of Discrimination a. Disparate Treatment in To"ms and Conditions of Employment Martin claims that while employed by Kroger, she was treated adversely as compared to white or male employees in a number of respects. “To establish a pri-ma facie case of discrimination ..., a plaintiff may prove her claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas..." Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.1998). Under the latter method of proof, to establish a prima facie ease of disparate treatment, the plaintiff must show that: (1) she is a member of a protected class; (2) she is qualified for the position; (3) she suffered an adverse employment action; and (4) others outside the class who are similarly situated were treated more favorably. See id.; Nieto v. L & H Packing Co., 108 F.3d 621, 623 n. 5 (5th Cir.1997); Waggoner v. City of Garland, 987 F.2d 1160, 1163-64 (5th Cir.1993); Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir.1988); Thornbrough, 760 F.2d at 639. Martin’s ability to meet the first and second elements of a prima facie case under a disparate treatment theory is uncontested. As an African-American female, Martin is indisputably a member of two protected classes. She appears to be qualified for the position of facility engineer in view of her engineering degree and her five years of experience. Kroger, however, contests Martin’s ability to show that she suffered an adverse employment action, aside from her termination, or that similarly situated, non-black employees were treated more favorably. The anti-discrimination provisions of the TCHRA and Title VII prohibit adverse employment actions based on an employee’s protected status. See Tex.Lab. Code Awn. § 21.051; 42 U.S.C. § 2000e-2. In situations where the plaintiff does not allege severe and pervasive harassment, actionable adverse employment actions are generally limited to “tangible employment action[s] [that] constitute[ ] a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998); see Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir.1999) (change in 'work schedule and being asked to perform tasks not previously assigned are not adverse employment actions); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir.1996) (reassignment to different division is not adverse employment action); Yates v. Avco Corp. 819 F.2d 630, 638 (6th Cir.1987) (transfer without reduction in pay or benefits does not constitute adverse action). “ ‘Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.’ ” Messer, 130 F.3d at 140 (quoting Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir.1995)); accord Webb, 139 F.3d at 540; Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir.), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997); Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981). An ultimate employment decision, in itself or through its direct consequences, must effect a material change in the terms or conditions of employment. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997). “ ‘Although actions short of termination may constitute an adverse employment action within the meaning of the statute, not everything that makes an employee unhappy is an actionable adverse action.’ ” Greaser v. Missouri Dep’t. of Corrections, 145 F.3d 979, 984 (8th Cir.), cert. denied, — U.S. -, 119 S.Ct. 620, 142 L.Ed.2d 559 (1998) (quoting Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 689 (8th Cir.1997)); accord Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir.1997); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). Interlocutory or mediate decisions, even those that can lead to an ultimate employment decision, are not adverse employment actions for purposes of Title VIL See Mattern, 104 F.3d at 708. The Seventh Circuit has explained: “[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities..... A materially adverse change might be indicated by a termination of, employment,, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1112 n. 7 (7th Cir.1998) (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993)); Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.1996). “[Ejmployment actions are not adverse where pay, benefits, and level of responsibility remain the same.” Watts, 170 F.3d at 512; see Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (reassignment to a different position without any reduction in title, salary, or benefits was not adverse employment action although new position involved different duties and was more stressful); Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (semantic change in title and “bruised ego” did not constitute adverse employment action where pay, benefits, and level of responsibility remained the same); Crady, 993 F.2d at 136 (no adverse action where job transfer merely caused personal inconvenience or altered job responsibilities). Accordingly, a supervisor’s treatment of an employee “rudely and uncivilly does not amount to an adverse employment action.” Webb, 139 F.3d at 540. Even a “verbal threat of being fired” is not an adverse employment action because of its “lack of- consequence.” Mattern, 104 F.3d at 708. While it may increase an employee’s chance that she will eventually suffer an adverse employment action, such a threat, in itself, is not an ultimate employment decision and does not “rise above having mere tangential effect on a possible future ultimate employment decision.” Id. Similarly, negative performance evaluations, even if undeserved, are not adverse employment actions giving rise to actionable discrimination claims. See Speer v. Rand McNally & Co., 123 F.3d 658, 664 (7th Cir.1997); Smart, 89 F.3d at 442; see also Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.1996); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.1994). “[Negative performance evaluations, standing alone, cannot constitute an adverse employment action.” Sweeney v. West, 149 F.3d 550, 556 (7th Cir.1998) (citing Smart, 89 F.3d at 442); accord Dela Rosa v. Scottsdale Mem. Health Sys., Inc., 132 F.3d 38, 1997 WL 753359, at *2 n. 3 (9th Cir. Dec. 2, 1997), cert. denied, — U.S. -, 119 S.Ct. 50, 142 L.Ed.2d 38 (1998) (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995)); Montandon, 116 F.3d at 359. Here, Martin attempts to show that similarly situated, non-black, male employees were treated more favorably than she by relying on allegations of non-material, tangential events and actions, most of which find no support in the record. She contends in her petition: Defendant Hembree further promoted, encouraged, condoned, approved and ratified the discriminatory acts of others committed against Plaintiff. Defendant Hembree frequently and repeatedly acted to undermine Plaintiffs work by countermanding decisions which Plaintiff made within the course and scope of her job duties and responsibilities but with which decisions Plaintiffs subordinate employees, including Lead Carpenter Terry Hildebrandt, disagreed. Even while erecting artificial barriers to Plaintiffs successful performance, Defendant Hembree increased the amount of responsibility Plaintiff had with regard to Defendant Kroger’s assets and legitimate bu