Opinion
Civil No. 3:02-CV-2572-H.
May 18, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment, filed March 15, 2004, and the response and the reply thereto. Also before the Court are Plaintiff's Objections to Defendants' Summary Judgment Evidence, filed April 6, 2004; Defendants' Objections and Motion to Strike Plaintiff's Summary Judgment Evidence, filed April 19, 2004; and the responses thereto. For the following reasons, Defendants' motion for summary judgment is GRANTED.
I. Background
In her First Amended Complaint, Plaintiff Mary O'Brien ("O'Brien") alleges that Defendants Lucas Associates Personnel, Inc., d/b/a Lucas Group, and Lucas Associates, Inc. (collectively "Lucas"), violated the Texas Commission on Human Rights Act ("TCHRA") when Lucas discharged O'Brien on May 15, 2001, due to her gender. (P.'s Am. Compl. at 6-8.) O'Brien also alleges a claim for hostile work environment. ( Id. at 4-5; P.'s Resp. at 17.)
Lucas is a recruitment firm based in Atlanta, Georgia. In February 1997, Cathy de Martino ("de Martino") and Art Lucas ("Mr. Lucas") hired O'Brien as a recruiter and managing partner of Lucas's Executive Search Group in Dallas, Texas. By most accounts, O'Brien excelled in the recruiting aspect of her position. However, according to Lucas, O'Brien did not enjoy similar success in the management aspect of her position. In May 2000, de Martino arranged for O'Brien to meet with an executive coach to improve O'Brien's management skills. Despite numerous meetings with the executive coach, Lucas asserts that O'Brien's high employee turnover rate, and the negative comments about O'Brien from existing and departing employees, did not improve. O'Brien's employment with Lucas ended in May 2001. Whereas O'Brien contends that Lucas discharged her, Lucas contends that O'Brien resigned after de Martino and Mr. Lucas relieved O'Brien of her management responsibilities. The instant action ensued, and Lucas now moves for summary judgment on all claims.
II. Legal Standards
A. Summary Judgment Standards
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits, and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
B. TCHRA Standards
In analyzing a claim of employment discrimination under TCHRA, the Court employs the same legal standards as it would in analyzing a claim of employment discrimination under Title VII. See M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (holding that the Texas Legislature intended to correlate state law with federal law in employment discrimination cases). The Court evaluates discrimination claims that rely on circumstantial evidence by employing the burden-shifting approach announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See West v. Nabors Drilling USA, Inc., 330 F.3d 379, 383 (5th Cir. 2003); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The Supreme Court developed this approach "to deal with cases in which discrimination can be proved only by circumstantial evidence." Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000)).
Under the burden-shifting approach, a plaintiff is first required to establish a prima facie case of discrimination. See Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a "legitimate, non-discriminatory justification for its actions." Evans, 246 F.3d at 350. "If the defendant can articulate a reason that, if believed, would support a finding that the action was non-discriminatory, the mandatory inference of discrimination created by the plaintiff's prima facie case drops out of the picture and the factfinder must decide the ultimate question: whether the plaintiff has proved intentional discrimination." Id. (internal quotations omitted). In establishing this ultimate question, "the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination . . ., and the factfinder may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom." Id.
III. Analysis
As noted above, O'Brien asserts claims for discriminatory discharge and hostile work environment. The Court will now address each claim in turn.
To the extent necessary, the Court will address the parties' objections to the summary judgment evidence during the course of its analysis.
A. Discriminatory Discharge
O'Brien alleges that Lucas violated TCHRA when Lucas discharged O'Brien on May 15, 2001, due to her gender. (P.'s Am. Compl. at 6-8.) Lucas, on the other hand, contends that O'Brien cannot meet her burden of establishing a prima facie case of gender discrimination or that Lucas's legitimate, non-discriminatory reason was pretext for gender discrimination. (D.s' Br. at 6-7,9-11.)
With respect to a claim for discriminatory discharge or demotion, a plaintiff must present evidence of the following in order to establish a prima facie case of gender discrimination: (1) that the plaintiff is a member of a protected class, i.e., that the plaintiff is female; (2) that the plaintiff was qualified for the position held; (3) that the plaintiff was discharged or demoted; and (4) that after discharging or demoting the plaintiff, the employer replaced the plaintiff with a person who is not a member of the protected class, i.e., a male, or that the employer acted in some other manner to indicate that the decision to discharge or demote was based on gender. See Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995); Waldmiller v. Continental Exp., Inc., 74 S.W.3d 116, 120 (Tex.App.-Texarkana 2002, no pet. h.). In the instant case, although there appears to be no serious dispute that O'Brien has established the first three elements, O'Brien cannot establish the fourth element of her prima facie case of gender discrimination. O'Brien has presented no competent summary judgment evidence that she was replaced by a male employee. Although O'Brien suggests in her affidavit that a male employee named Jeff Chaponick ("Chaponick") replaced her, she admitted in her deposition testimony that she had no personal knowledge that Chaponick had replaced her. (P.'s App. at 8; D.s' Supp. App. at 139.) Indeed, Lucas presents evidence that two female employees-de Martino and Andrea Jennings-replaced O'Brien. (D.s' App. at 6, 12.)
As noted above, the parties differ as to the circumstances surrounding O'Brien's departure from Lucas. Whereas O'Brien contends that Lucas discharged her, Lucas contends that O'Brien resigned after de Martino and Mr. Lucas relieved O'Brien of her management responsibilities. Thus, Lucas, in effect, concedes that it demoted O'Brien before her alleged resignation. The Court need not resolve whether Lucas discharged or demoted O'Brien because, in either event, O'Brien suffered an adverse employment action. The Court's decision in this Memorandum Opinion and Order is not based on the lack of an adverse employment action.
To the extent O'Brien attempts to create a genuine issue of material fact by stating in her affidavit that Chaponick replaced her, Lucas's objection to that portion of the affidavit is hereby SUSTAINED as contradicting O'Brien's deposition testimony. See Albertson v. T.J. Stevenson Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984) ("[T]he nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony."). In her deposition, O'Brien testified that all she knew about her replacement was what de Martino had told her, i.e., that Chaponick would be running the office until de Martino found a replacement or figured out what to do with the office. (D.s' Supp. App. at 139.) In her deposition, O'Brien confirmed that she had no independent knowledge of who had actually replaced her. ( Id.) Nonetheless, more than a year after her deposition testimony, and without explaining her newfound knowledge, O'Brien relates facts in her affidavit indicating that she has personal knowledge that Chaponick replaced her. Specifically, O'Brien states in her affidavit that, when she retrieved her belongings from her office after her discharge, she observed Chaponick in her office fulfilling her management responsibilities. (P.'s App. at 8.) O'Brien also claims that Chaponick told her that he would be replacing her. ( Id.) Thus, O'Brien's affidavit contradicts, without explanation, her previous deposition testimony because it purports to relate personal knowledge regarding who replaced her when she had previously admitted during her deposition that she had no such knowledge.
O'Brien objects to Paragraph 14 of Carla Roush's affidavit as hearsay. (P.'s Resp. at 2; D.s' App. at 12.) However, that paragraph contains no out-of-court statement. See FED. R. EVID. 801(c). Accordingly, O'Brien's objection to Paragraph 14 is hereby OVERRULED.
The Court recognizes that O'Brien's failure to establish that she was replaced by a male employee "does not necessarily mean that she has failed to establish her prima facie case of discrimination." Williams v. Trader Publishing Co., 218 F.3d 481, 485 (5th Cir. 2000). However, a prima facie case of gender discrimination still requires at least some showing that the adverse employment action was motivated by the employee's gender. See Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000) ("[D]iscrimination suits still require evidence of discrimination."). To that end, a female employee "may use circumstantial evidence that she has been treated differently than similarly situated [male employees]." Williams, 218 F.3d at 484-85. See also Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (noting that, in order to state a prima facie case of discrimination, a plaintiff can show that non-protected class members were treated differently under "nearly identical" circumstances).
In the instant case, O'Brien testified during her deposition that she was treated differently than both her male and female counterparts, thereby undermining her claim that Lucas discriminated against her on the basis of gender. (D.s' App. at 52.) As alluded to above, Lucas contends that it relieved O'Brien of her management duties because O'Brien suffered high employee turnover rates and because existing and departing employees had made negative comments about her. However, O'Brien states in her affidavit that certain male managers suffered even higher employee turnover rates than her and were not discharged or demoted. (P.'s App. at 2, 3, 5.) Even if the Court were to ignore the conclusory nature of her affidavit statements, O'Brien fails to present any evidence that Lucas treated these male managers differently than her under "nearly identical" circumstances. See Mayberry, 55 F.3d at 1090. For example, O'Brien testified in her deposition that she was specifically hired to expand the Executive Search Group in Dallas. (D.s' App. at 39.) However, O'Brien fails to present any evidence that Lucas had hired the male managers with the same objective for their respective groups. Furthermore, O'Brien fails to present any evidence that existing and departing employees had made similar negative comments, both in nature and in number, about the male managers as they had made about her. Finally, O'Brien fails to present any evidence that Lucas had hired an executive coach for the male managers to improve their management skills as Lucas had done for her. Thus, O'Brien has failed to establish that Lucas discharged or demoted her-but did not discharge or demote any male manager-under "nearly identical" circumstances. See Mayberry, 55 F.3d at 1090.
"Q. Okay. So you were essentially singled out and treated differently, in your opinion, from your male and female counterparts?
"A. Yes."
(D.s' App. at 52.)
Finally, O'Brien fails to present any evidence to rebut the inference of non-discrimination that arises when an employee is hired and fired by the same supervisor. See Nieto v. LH Packing Co., 108 F.3d 621, 624 (5th Cir. 1997) ("[I]t is unlikely that a decision maker `would hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.'"). The evidence before the Court establishes that de Martino and Mr. Lucas jointly participated in O'Brien's hiring and in her discharge or demotion. (D.s' App. at 2, 6.) The inference of non-discrimination is enhanced in the instant case because de Martino, a female supervisor, belongs to the same protected class as O'Brien. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) ("The fact that the actor involved in both employment decisions is also a member of the protected class only enhances the inference [of non-discrimination]."). Accordingly, for all of the above reasons, O'Brien has failed to establish a prima facie case of gender discrimination.
Even if O'Brien had established a prima facie case of gender discrimination, Lucas presents evidence that it discharged or demoted O'Brien for legitimate, non-discriminatory reasons. As noted above, Lucas presents evidence that it discharged or demoted O'Brien due to her high employee turnover rate and due to the negative comments about her by existing and departing employees. (D.s' App. at 5-6, 141, 143-44, 147, 149-55, 157.) To the extent O'Brien objects to Lucas's evidence of these legitimate, non-discriminatory reasons on the basis of hearsay, those objections are OVERRULED under the business records exception (exit interview forms) or because they are not offered to prove the truth of the matter asserted (emails). See FED. R. EVID.801(c), 803(6). With respect to pretext, O'Brien fails to rebut Lucas's legitimate, non-discriminatory reasons with evidence of pretext. In fact, the record before the Court is devoid of any evidence that Lucas discharged or demoted O'Brien due to her gender. Although O'Brien seems to argue that she was a better manager than her male counterparts, she presents no evidence that Lucas did not believe that they were discharging or demoting O'Brien for the stated legitimate, non-discriminatory reasons. In fact, in her deposition testimony, O'Brien agreed that she had been discharged or demoted due to "unacceptable performance in turnover and employee complaints in the branch." (D.s' App. at 115.) The Court recognizes that O'Brien has painted an unflattering picture of Lucas's treatment of women generally; however, the Court cannot simply infer that such treatment extended to O'Brien specifically in the instance of her discharge or demotion on May 15, 2001.
B. Hostile Work Environment
As a final matter, the Court notes that O'Brien asserts a claim for hostile work environment. (P.'s Am. Compl. at 4-5; P.'s Resp. at 17.) However, O'Brien has failed to exhaust her administrative remedies as to that claim. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (recognizing that the filing of a charge of discrimination "is a precondition to filing suit in district court"). O'Brien's Charge of Discrimination, filed with both the Texas Commission on Human Rights and the Equal Employment Opportunity Commission ("EEOC"), charges Lucas with discrimination only as to O'Brien's discharge. (D.s' App. at 137.) Significantly, the Charge of Discrimination alleges that the discrimination took place only on May 15, 2001, the date O'Brien alleges that Lucas discharged her. ( Id.) Accordingly, to the extent O'Brien brings claims for any conduct other than for her discharge or demotion in May 2001, those claims are hereby DISMISSED. See Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000) ("The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."). See also Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004) (noting that Title VII and the cases interpreting it guide the reading of TCHRA).
The Court notes that even if O'Brien had exhausted her claim for hostile work environment, her response to Defendants' motion for summary judgment on this claim is wholly insufficient to raise a genuine issue of material fact. Her entire response on this claim amounts to one paragraph and cites to no evidence in support of her conclusory contention. (P.'s Resp. at 22.) Even assuming that sexual harassment existed at Lucas, O'Brien presents no evidence that she subjectively believed the harassment to be "severe or pervasive." See Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003) ("The Plaintiff must subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable."); Hoffman-La Roche, Inc. v. Zeltwanger, 69 S.W.3d 634, 651 (Tex.App.-Corpus Christi 2002, pet. granted) ("Conduct that is not severe enough to create a work environment that a reasonable person would find hostile or abusive will not trigger Title VII or its Texas equivalent."). Finally, still assuming that sexual harassment existed at Lucas, O'Brien presents no evidence that the harassment "affected a term, condition, or privilege of employment." See Frank, 347 F.3d at 138; Garcia v. Levi Strauss Co., 85 S.W.3d 362, 370 (Tex.App.-El Paso 2002, no pet. h.) ("A hostile work environment is one so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace.") (internal quotations omitted). O'Brien states in her affidavit that, "[d]espite the demeaning atmosphere, I was always a top performer." (P.'s App. at 3.) For all of the above reasons, O'Brien's claim for hostile work environment must fail.
The Court is confident based on the evidence before it that O'Brien has failed to exhaust her administrative remedies as to her claim for hostile work environment. (D.s' App. at 137.) The Court notes that a certain deposition excerpt refers to an "addendum" to the Charge of Discrimination (D.s' App. at 52), but the "addendum" is not before this Court.
IV. Conclusion
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED, and the case is DISMISSED. Defendants' request for attorney fees and costs pursuant to § 21.259(a) of the Texas Labor Code is DENIED.
SO ORDERED.