Opinion
SA-21-CV-507-OLG (HJB)
04-10-2023
JACQUELYN ZEPORA BROWN, Plaintiff, v. SAN ANTONIO FOOD BANK, Defendant.
Honorable Orlando L. Garcia United States District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad United States Magistrate Judge
This Report and Recommendation concerns the First Amended Motion for Summary Judgment filed by Defendant San Antonio Food Bank. (Docket Entry 57.) Pretrial motions in this case have been referred to the undersigned for consideration. (See Docket Entry 11.) For the reasons set out below, I recommend that Defendant's First Amended Motion for Summary Judgment (Docket Entry 57) be GRANTED, and that Plaintiff's case be DISMISSED.
I. Jurisdiction.
Plaintiff's suit presents a claim under 42 U.S.C. § 1981 and a number of state law claims. The Court has original jurisdiction over federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
Defendant hired Plaintiff as a part-time line chef for the Catalyst Catering department in May 2019. (Docket Entry 59-3, at 14-17.) As a condition of employment, Plaintiff was subjected to an initial drug screen, which she passed. (Docket Entry 59-3, at 20.) When she was hired, Plaintiff informed her immediate supervisors Lorraine Aguirre, Erika Borrego, and Johanna Tesch that she “suffered from a hearing impairment, had documented hearing loss, and took medication for dizziness, headaches, and vertigo.” (Docket Entry 59-1, at 3.) Plaintiff requested that they speak as loudly as possible, give her the opportunity to read lips, provide things in writing, and provide microphones or headsets to help her hear better. (Docket Entry 59-1, at 3.)
In September 2019, Plaintiff complained to Aguirre, Borrego, and Tesch that she “felt targeted because [she is] African American” when she was selected for a random drug test ordered by Tesch. (Docket Entry 59-3, at 33-34.) Shortly after, Aguirre and Borrego began cutting her work hours. (Docket Entry 59-1, at 5.) Previously, there were times when Plaintiff worked more than forty hours per week, even though Plaintiff was designated as a part-time employee. (Docket Entry 59-1, at 5; Docket Entry 59-3, at 36.) Plaintiff then complained to Tesch about Aguirre and Borrego cutting her hours. (Docket Entry 59-1, at 5.)
On December 22, 2019, Plaintiff filed a confidential discrimination complaint using Defendant's third-party “ethics” hotline. (Docket Entry 59-1, at 5-6.) Plaintiff complained that her supervisors were cutting her hours, had accused her of buying drugs, and were charging her for uniforms. (Docket Entry 59-3, at 41, 46; Docket Entry 59-3, at 74.)
Approximately two weeks later, Plaintiff suffered a workplace injury. (Docket Entry 591, at 7.) She was out of work for several days and was on “light duty” when she returned. (Docket Entry 59-1, at 7.) Also sometime in January 2020, Borrego and another chef advised Tesch that they wanted to terminate Plaintiff for attendance issues. (Docket Entry 59-3, at 86.) However, Tesch noted that they had not produced sufficient documentation to justify termination as required by Defendant's progressive discipline policy. (Docket Entry 59-3, at 86-91.)
On January 16, 2020, Plaintiff spoke to Tesch about her hearing and balance disabilities. Plaintiff advised that she repeatedly informed Aguirre and Borrego about her hearing disability and requested accommodations, but they ignored her requests. (Docket Entry 59-1, at 6.) Tesch advised that she would address Plaintiff's complaints by speaking with Aguirre and Borrego. (Docket Entry 59-1, 6; Docket Entry 59-4, at 5.) In April, Plaintiff filed another complaint with Defendant's Human Resources department regarding Aguirre's behavior towards her. (Docket Entry 59-1, at 7; Docket Entry 59-3, at 109-10, 114-15.)
On April 25, 2020, Plaintiff was informed that the Catalyst Catering division was being eliminated due to the COVID-19 pandemic. (Docket Entry 59-3, at 67-68.) At the time, the division consisted of one part-time and one full-time chef position, two temporary positions, and a business manager position. (Docket Entry 59-3, at 67.) Plaintiff was the part-time employee, Aguirre was the full-time employee, Travis Savely was the business manager, and Benito Chavez and Doiyna Reyna were the temporary employees. (Docket Entry 59-3, at 67.) Upon the closing, Borrego hired Aguirre to fill a full-time line chef position at Haven for Hope; Savely was placed in an alternate position; and Brown and the two temporary employees were laid off. (Docket Entry 59-3, at 68-69.)
After learning that Catalyst Catering was closing, Plaintiff e-mailed Tesch asking for additional hours or a transfer to Haven for Hope. (Docket Entry 59-1, at 7.) Tesch informed Plaintiff about an open position in the Summer Feeding Program. (Docket Entry 59-1, at 7.) Plaintiff applied and interviewed for the open position, but she was not hired. (Docket Entry 591, at 8; Docket Entry 59-3, at 73-74.)
On July 30, 2020, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission because of race, color, retaliation, and disability. (Docket Entry 59-3, at 107; Docket Entry 59-5, at 61-64.)
In May 2021, Plaintiff filed a pro se complaint against Defendant alleging Title VII violations based on her race, color, age, and disability. (Docket Entry 4.) After the undersigned appointed Plaintiff counsel, she filed an amended complaint alleging state law race discrimination, disability discrimination, and retaliation claims, as well as a § 1981 race-discrimination claim. (Docket Entry 24.)
Defendant moved for summary judgment on all of Plaintiff's claims on November 29, 2022. (Docket Entry 57.) Plaintiff responded in opposition (Docket Entry 59); and Defendant replied (Docket Entry 64.)
III. Legal Standards.
A. Summary Judgment.
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if it might affect the outcome of the suit under the governing law, while a dispute about that fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Owens v. Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (internal quotation marks omitted).
The moving party “always bears the initial responsibility of demonstrating the absence of a genuine issue of material fact.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (alterations omitted). When the movant would not bear the burden of persuasion at trial, she may satisfy her initial summary judgment burden “by pointing out that the record contains no support for the non-moving party's claim.” Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 997 (5th Cir. 2019). If the moving party satisfies her initial burden, the nonmovant “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Jones, 936 F.3d at 321.
B. The McDonnell Douglas Framework.
Where, as here, a plaintiff presents only circumstantial evidence of unlawful discrimination or retaliation, the burden-shifting framework set forth in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) guides the parties' burdens of proof.
With the exception of her failure-to-accommodate disability claim, each of Plaintiff's claims is subject to the McDonnell Douglas burden shifting framework. See, e.g., Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 584 (Tex. 2017) (applying McDonnell Douglas to Texas Labor Code discrimination claim); Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018) (same, retaliation claim). See also note 4, infra.
Under the McDonnell Douglas framework, the burden of production falls first upon the plaintiff to present evidence sufficient to establish a prima facie case. Rosario v. Tex. Veterans Comm'n, 607 F.Supp.3d 711, 718 (W.D. Tex. 2022). If the plaintiff is successful, a presumption of discrimination arises, and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Id. If the employer sustains its burden of production, the presumption of discrimination created by plaintiff's prima facie case dissipates. Lohn v. Morgan Stanley DW, Inc., 652 F.Supp.2d 812, 832 (S.D. Tex. 2009).
At the final stage, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff may meet this burden by showing that the employer's reasons are pretextual. Campos v. Steves & Sons, Inc., 10 F.4th 515, 521 (5th Cir. 2021).
IV. Analysis.
Plaintiff brings claims for race discrimination, disability discrimination, and retaliation under the Texas Labor Code, as well as a race-discrimination claim under § 1981. Defendant moved for summary judgment on all of Plaintiff's claims. Each will be addressed in turn.
A. Race Discrimination.
Plaintiff's race-discrimination claims arise under the Texas Labor Code and 42 U.S.C. § 1981. Chapter 21 of the Labor Code makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, among other things. TEX. LABOR CODE §21.051. Section 1981 guarantees to all persons within the jurisdiction of the United States the “same right .. to make and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).
The elements under the Texas Labor Code and § 1981 are the same. See Carter v. California Grill, LLC, 538 F.Supp.3d 714, 720 (W.D. Tex. 2021). To establish a prima facie race-discrimination claim, the plaintiff must show: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) her employer “gave preferential treatment to a similarly situated employee outside of the protected class.” Rincones, 520 S.W.3d at 583.
The first three elements are not at issue in this case: Plaintiff, an African American, is a member of a protected class; she was qualified for her position; and her reduction in hours and compensation and her termination are sufficient adverse employment actions to meet the standard for a prima facie case.Defendant, however, takes issue with the final element; it argues that Plaintiff has not provided evidence that it gave preferential treatment to a similarly situated employee outside of her protected class. (Docket Entry 57, at 5.)
Plaintiff also asserts that “she was forced to undergo humiliating drug tests and profiled as a drug user because she is African American.” (Docket Entry 59, at 26.) However, she provides no authority for the claim that undergoing a drug test constitutes an adverse employment action.
In “reduction-in-force cases” where, as here, the employer discharges an employee with no plan to replace her, the “similarly situated” element is framed slightly differently than in other cases. See Harville v. City of Hous., Miss., 945 F.3d 870, 875 n.14 (5th Cir. 2019). The question becomes whether similarly situated employees who were not members of the protected class remained in similar positions. Id. To satisfy this element, Plaintiff must either (1) show “there is sufficient evidence . . . from which a fact finder may reasonably conclude that [Defendant] intended to discriminate in reaching the adverse employment action,” or (2) point to a fellow employee who was similarly situated but is not a member of her protected class and was not terminated. Ortiz v. Shaw Grp., Inc., 250 Fed.Appx. 603, 606 (5th Cir. 2007); Lee v. Kansas City 5. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009).
Plaintiff identifies Aguirre, who is Hispanic, and Savely, who is white, as employees who were not terminated when she was. (Docket Entry 59, at 29.) Instead, Aguirre filled an open line chef position at Haven for Hope, which is the same position Plaintiff held, and Savely was placed in an unidentified alternate position. Plaintiff, however, has not shown how either Savely or Aguirre was similarly situated.
“Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.” Democratic 5ch. Research, Inc. v. Rock, 608 S.W.3d 290, 310-11 (Tex. App.-Houston [1st Dist.] 2020, no pet.) (citing Rincones, 520 S.W.3d at 584). Employees who hold different jobs are not similarly situated and, ordinarily, a plaintiff is not similarly situated to another employee when she is subordinate to that employee. Rincones, 520 S.W.3d at 584.
In this case, Savely was not similarly situated to Plaintiff; he was the business manager of the Catalyst Catering department, while Plaintiff was a line chef. (Docket Entry 59-3, at 67.) And although Plaintiff argues that she and Aguirre were both full-time line chefs,she does not provide additional details as to how the two were “comparable in all material respects”-and, more importantly, she identifies Aguirre as one of her immediate supervisors. (See Docket Entry 59-1, at 3.) For these reasons, Plaintiff has not identified an appropriate comparator. Accordingly, she has not established a prima facie case of race discrimination, and summary judgment should be granted as to her Texas Labor Code and § 1981 race-discrimination claims.
The parties dispute whether Plaintiff was a full-time or part-time employee. Defendant presents evidence that Plaintiff was hired as a part-time employee; Plaintiff presents evidence that she worked more than forty hours per week on numerous occasions. At the summary judgment stage, the Court must “resolve factual controversies in favor of the nonmoving party.” Guillot on behalf of T.A.G. v. Russell, 59 F.4th 743, 750 (5th Cir. 2023).
B. Disability Claims.
Plaintiff brings claims under the Texas Labor Code for disability discrimination and for Defendant's failure to accommodate her disability. Although the parties brief these two claims as one, and although the elements of the two claims overlap to some extent, a failure-to-accommodate claim is distinct from a claim of disability discrimination. See TEX. LAB. CODE § 21.051 (disability discrimination); TEX. LAB. CODE § 21.128 (failure to accommodate). Accordingly, this Report and Recommendation addresses them separately.
1. Disability discrimination.
To establish a prima facie disability-discrimination claim, a plaintiff must show that (1) she has a disability; (2) she was qualified for the job; and (3) she suffered an adverse employment decision because of her disability. See Tex. Dep't of Transp. v. Lara, 625 S.W.3d 46, 61 (Tex. 2021).
Defendant argues that Plaintiff has not provided evidence to support that she has a disability or that she was terminated because of her alleged disability. (Docket Entry 57, at 7.) Plaintiff's response focuses solely on whether she is disabled (See Docket Entry 59, at 1221): the response cites to no evidence to create a genuine fact issue as to whether Plaintiff was terminated because of her disability. This failure is fatal to her claim. For this reason, summary judgment is appropriate as to Plaintiff's disability-discrimination claim.
Unlike disparate-treatment and retaliation claims, the McDonnell Douglas framework does not apply to failure-to-accommodate claims. See Hancock v. Securitas Sec. Servs. USA, Inc., No. SA-20-CV-785-ESC, 2020 WL 675821, at *5 n.1 (W.D. Tex. Mar. 4, 2022) (collecting cases).
To establish a claim “based on an employer's failure to provide a reasonable accommodation, the plaintiff must show: (1) [she] is an individual with a disability; (2) the employer had notice of the disability; (3) with reasonable accommodations [she] could perform the essential functions of the position; and (4) that the employer refused to make such accommodations.” Milteer v. Navarro Cnty, Tex., __ F.Supp.3d __, 2023 WL 415154, at *4 (N.D. Tex. Jan. 25, 2023). Although Plaintiff has raised a genuine dispute on the disability issue, her claim fails on the question of accommodation. She also fails to show any possible damages that resulted from the claimed failure to accommodate.
Disability.
The Texas Labor Code defines “disability” as “a mental or physical impairment that substantially limits at least one major life activity of [an] individual, a record of such an impairment, or being regarded as having such an impairment.” TEX. LAB. CODE § 21.002(6). Major life activities are functions such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, . . . thinking or working.” TEX. LAB. CODE § 21.002(11-a). An impairment is “substantially limiting” if it renders a person “unable to perform a major life activity that the average person in the general population can perform” or renders that person “significantly restricted” in the ability to perform it. Tex. Dep't of Family & Protective Servs. v. Howard, 429 S.W.3d 782, 787 (Tex. App.-Dallas 2014, pet. denied).
Plaintiff alternatively pleads each means of proving she has a disability.
Plaintiff's disability claims are based on an inner ear disorder called Meniere's disease. (Docket Entry 59-1, at 2.) Defendant argues Plaintiff has not provided sufficient evidence to support that she has such disability. (Docket Entry 57, at 7.) In response, Plaintiff provides medical records from 2011 and 2014 indicating she was complaining of hearing loss, tinnitus, headaches, and dizziness. (Docket Entry 59-2, at 51.) The medical records also indicate she was assessed with asymmetric and sensorineural hearing loss. (Docket Entry 59-2, at 54.)
Defendant argues this evidence is insufficient because the records do not contain a diagnosis of Meniere's disease even though Plaintiff testified that she had documentation to support her diagnosis. (Docket Entry 57, at 8.) Defendant further argues that any claim that Plaintiff's hearing substantially limits a major life activity is undermined by the fact that she did not remember the last time she visited a physician about her hearing even though she had insurance. (Docket Entry 57, at 8-9.)
It is far from clear that Defendant's arguments as to the medical records provided mean that there is no genuine dispute as to Plaintiff's disability. In any case, Plaintiff provides information in addition to the medical records. Plaintiff's declaration identifies the ways in which her hearing impairment affects her daily life. (See Docket Entry 59-1.) Plaintiff's declaration states that she has used a hearing aid “on an off and on basis to hear,” uses sound amplification devices, and keeps her phone on vibrate so that she can feel when it rings. (Id. at 1-2.) Although Defendant invites the Court to disregard Plaintiff's declaration as not credible, the Court may not weigh evidence at the summary judgment stage. See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008) (“When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.”) Accordingly, Plaintiff has created a fact issue as to whether she suffered from a disability.
Reasonable accommodations.
Plaintiff's declaration indicates that when she was hired, she informed Aguirre, Borrego, and Tesch that she suffered from a hearing impairment, had documented hearing loss, and took medication for dizziness, headaches, and vertigo. (Docket Entry 59-1, at 3.) She asked that they speak as loudly as possible, put things in writing so she could read instead of relying on her hearing, and provide microphones or headsets to assist her with hearing. (Id.) In January 2020, she again spoke with Tesch about her hearing and balance disabilities and complained that Aguirre ignored her request for reasonable accommodations. (See id. at 6; Docket Entry 59-4, at 4.)
Defendant counters that it provided reasonable accommodations for Plaintiff's hearing impairment because it provided instructions for her role in writing and because chefs were available to speak with Plaintiff directly and to answer any questions she may have had. (Docket Entry 57, at 8; Docket Entry 57-1, at 82-83.) The accommodation an employer provides “need not be the best accommodation, so long as it meets the job-related needs of the employee being accommodated.” Golden v. City of Longview, No. 6:20-CV-620-JDL, 2022 WL 16625713, at *7 (E.D. Tex. Nov. 1, 2022) (citing E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009)). The evidence produced by Defendant shows that Plaintiff's needs were reasonably accommodated, and Plaintiff has not created a fact issue as to whether Defendant refused to accommodate her disability.
Damages.
Finally, there is no evidence establishing that Plaintiff suffered any damages attributable to Defendant's alleged failure to accommodate her hearing disabilities. See Calderone v. TARC, 640 Fed.Appx. 363, 366 (5th Cir. 2016) (“[Plaintiff] has not identified how any failure to accommodate damaged her in any way.”) As discussed above, she was terminated on nondisability grounds, and there is no evidence whatsoever to show that any claimed failure to accommodate caused other damages. For these reasons, Plaintiff's failure-to-accommodate claim fails.
C. Retaliation .
Section 21.055 of the Texas Labor Code provides that “[a]n employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates against a person who . . . opposes a discriminatory practice[,] makes or files a charge[,] . . . or participates in any manner in an investigation.” Although Plaintiff has presented a prima facie case of retaliation sufficient to withstand summary judgment, Defendant has proffered a legitimate reason for its actions, and Plaintiff has failed to make a sufficient showing of pretext.
1. Prima facie claim.
To establish a prima facie case of retaliation, an employee must show: (1) she engaged in an activity protected by the Texas Labor Code, (2) she experienced a material adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. Alamo Heights, 544 S.W.3d at 782. Defendant disputes whether Plaintiff can meet each of these elements.
Protected activity.
Defendant argues that Plaintiff has not identified the alleged protected activity she engaged in that supports her claim for retaliation. (Docket Entry 57, at 9.) Plaintiff responds that she engaged in protected activity by complaining of discrimination and filing a charge of discrimination. (Docket Entry 59, at 22, 23.) Plaintiff's response is well-taken: the activity she describes is protected by the Texas Labor Code. See TEX. LAB. CODE § 21.005.
Adverse employment action.
For a retaliation claim, an adverse employment action “need not rise to the level of ultimate employment decisions.” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 827 (5th Cir. 2019) (citing Burlington N. & SantaFe Ry. Co. v. White, 548 U.S. 53, 6768 2006)). “The key question is whether the challenged action is ‘materially adverse' in that it is ‘harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.'” Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 945 (5th Cir. 2015) (quoting Burlington, 548 U.S. at 57). In this case, Plaintiff claims her work hours were reduced which resulted in a reduction in compensation, she was terminated with no option to transfer, and she was not hired into the Summer Feeding Program. (Docket Entry 59, at 23.) Such conduct undoubtedly constitutes adverse employment actions.
Causation.
Establishing causation at the prima facie stage is not onerous; it “can be satisfied merely by proving close timing between the protected activity and the adverse action.” Alamo Heights, 544 S.W.3d at 782. In this case, Plaintiff complained of race and disability discrimination in December 2019, January 2020, and April 2020. She was then given a notice of termination on April 25, 2020, effective May 1, 2020. (Docket Entry 59, at 25.) Such close timing is sufficient to satisfy causation at the prima facie stage. Alamo Heights, 544 S.W.3d at 782.
2. Legitimate, non-discriminatory reason.
Defendant claims that when the COVID-19 pandemic caused all catering functions to be cancelled, it decided to eliminate the entire Catalyst Catering department, including Plaintiff's position. Defendant, who bears the burden of production, rather than persuasion, at this stage has proffered a legitimate, non-discriminatory reason for Plaintiff's termination. See Quintana v. Fujifilm N. Am. Corp., 96 F.Supp.3d 601 (N.D. Tex. 2015).
3. Pretext.
At the pretext stage, Plaintiff must introduce evidence showing that she “would not have been terminated but for [her] protected conduct.” Almeida v. Bio-Med. Applications of Tex., Inc., 907 F.3d 876, 880 (5th Cir. 2018) (quoting Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995)). She is not required to prove that her protected activity was the sole reason for her termination. Apache Corp. v. Davis, 627 S.W.3d 324, 335 (Tex. 2021) (quoting Hinds, 904 S.W.2d at 634). But she must present evidence that, absent her protected conduct, Defendant would not have terminated her at the time it did. Almeida, 907 F.3d at 880.
Defendant argues Plaintiff has not provided such evidence. Plaintiff responds that Aguirre and Borrego displayed a retaliatory motive when they advised Tesch they wanted to terminate Plaintiff for attendance issues, a request Tesch rejected because there was not proper documentation to support her termination. (Docket Entry 59, at 25.) Even if this evidence was relevant to a retaliatory motive, Plaintiff's evidence does not meet the “but-for” standard required in retaliation claims. See Almeida, 907 F.3d at 880. Plaintiff has failed to present evidence that could allow a reasonable juror to conclude that her termination, brought about by the COVID-19 pandemic, would not have occurred when it did but for her protected conduct. Accordingly, summary judgment should be granted as to Plaintiff's retaliation claim.
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that Defendant's Motion for Summary Judgment (Docket Entry 57) be GRANTED, and that Plaintiff's case be DISMISSED.
VI. Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED.