Opinion
SA-20-CV-102-FB-HJB
06-01-2021
AURELIANO PALOMO, Plaintiff, v. FLOWERS BAKING COMPANY OF SAN ANTONIO, LLC, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
To the Honorable Fred Biery, United States District Judge.
This Report and Recommendation concerns Defendant Flowers Baking Company of San Antonio's ("Flowers") Motion for Summary Judgment. (Docket Entry 19.) Pretrial motions in this case have been referred to the undersigned for consideration. (See Docket Entry 4.) For the reasons set out below, I recommend that Flowers' motions be GRANTED.
I. Jurisdiction.
Plaintiff brought suit in state court alleging violations of the Texas Commission on Human Rights Act ("TCHRA"); Defendant removed the suit based on diversity jurisdiction under 28 U.S.C. § 1332. (Docket Entry 1.) I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Background.
Plaintiff worked for Diana's Discount Bakery on South Zarzamora Street in San Antonio, Texas, which was owned by his wife. (See Docket Entry 19-1, at 5.) He began employment for Flowers sometime after Flowers purchased the bakery in 2008. (Id. at 90.) Initially, he worked as a delivery driver before taking the role of Retail Sales Operator. (Id. at 90-91.)
He was terminated on March 25, 2019. (Docket Entry 19-1, at 77.) At the time of his termination, he was 59 years old. (See Id. at 86.) He was terminated by his supervisor, Mario Lozano, who was 63 at the time. (Id. at 21.) Plaintiff alleges that he was replaced by Martha Aleman, a younger female employee. (Docket Entry 23, at 8.)
Plaintiff claims that his termination was motivated by sex and age, and that it was retaliatory. (Docket Entry 23, at 4.) Flowers disputes these claims, asserting that its decision to terminate Plaintiff was not discriminatory, but rather was based on a series of policy violations spanning from 2013 to 2019. (See Docket Entry 19-1, at 22.) Plaintiff alleges that Lozano made a series of comments in which he praised female employees over Plaintiff despite Plaintiffs high sales numbers; he also claims Lozano fired two male employees in order to hire female employees. (Mat4(Ml.)
Plaintiff initially filed suit in the 150th Judicial District Court of Bexar County, Texas, alleging violations of the TCHRA. (See Docket Entry 1.) On January 28, 2020, Flowers removed the case to this Court on the basis of diversity jurisdiction. (Id.) Flowers has moved for summary judgment on all of Plaintiff s claims. (Docket Entry 19.) Plaintiff responded in opposition to the motion (Docket Entry 23), and Flowers replied (Docket Entry 26).
III. Summary Judgment Standard.
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if the record shows no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A party against whom summary judgment is sought may not rest on the allegations or denials in his pleadings, but instead must come forward with sufficient evidence to demonstrate a "genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute concerning a material fact is "genuine," and therefore sufficient to overcome a summary judgment motion, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, Ml U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).
"When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). "Although the evidence is viewed in the light most favorable to the nonmoving party, a nonmovant may not rely on 'conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence' to create a genuine issue of material fact sufficient to survive summary judgment." Barrera v. MTC, Inc., No. SA-10-CV-665-XR, 2012 WL 1202296, at *2 (W.D. Tex. Apr. 10, 2012) (quoting Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 854, 860 (5th Cir. 2004)). IV. Analysis.
Defendant seeks summary judgment on Plaintiffs claims of discrimination and retaliation. (Docket Entry 19.) This Report and Recommendation first considers the discrimination claims, and then turns to the retaliation claims.
A. Plaintiff s Sex and Age Discrimination Case,
Plaintiff brings sex and age discrimination claims against Flowers under the TCHRA, which prohibits discrimination based on "race, color, disability, religion, sex, national origin, or age." Tex. Lab. Code § 21.051 (West 1993). When interpreting state law TCHRA, Texas courts follow the standards applicable under Title VII. Mission Consol. Indep. Sch. Dist v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012). Therefore, a plaintiff can prove discriminatory intent either by direct evidence, or by circumstantial evidence under the burden-shifting McDonnell Douglas framework. 411 U.S. 792, 802 (1973). Under McDonnell Douglas, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. If he can, the burden shifts to the defendant "to articulate some legitimate, non-discriminatory reason" for the treatment. Id. If the defendant provides a reason, then the burden shifts back to the plaintiff to prove that this reason is pretextual. Id. at 804.
To present a prima facie case of discriminatory treatment, a plaintiff is required to prove: (1) he is within the protected class; (2) he is qualified for the position; (3) he suffered an adverse employment decision; and (4) he was replaced by someone outside the protected class or treated less favorably than similarly situated employees outside the protected class (i.e., suffered from disparate treatment because of membership in the protected class). See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002); see also Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002).
Neither party disputes the first three elements of the prima facie case for either sex or age discrimination; instead, Flowers' summary judgment motion focuses on the fourth element: whether Plaintiff was either replaced by an employee outside the protected class or treated less favorably than similarly situated employees. (See Docket Entry 19, at 5; Docket Entry 23, at 9.) For the reasons set out below, Plaintiff has not raised a genuine dispute as to this element with regard to either his sex or his age discrimination claim.
1. Plaintiffs sex discrimination claim.
Plaintiff has not raised a genuine dispute as to either replacement or disparate treatment to satisfy the fourth element of his prima facie sex-discrimination case.
Replacement.
As to replacement claim, Plaintiff alleges that he was replaced by a female employee and treated less favorably than other female employees. (Docket Entry 23, at 8.) The only evidence in the record that supports this contention is Plaintiffs deposition testimony that an ex-customer "called me and said, 4Oh, the new manager is Martha Aleman.' I didn't know. I have no proof of that, but they said she was there at the time." (Docket Entry 23-1, at 43.)
The above-cited evidence will not defeat summary judgment. At the summary judgment stage, evidence must be admissible in order to be considered by the Court. See Fed. R. Civ. Pro. 56(c)(1)(A). This portion of Plaintiff s deposition testimony is plainly not admissible. The Federal Rules of Evidence prevent the admission of hearsay, which is an out-of-court statement used to prove the truth of the matter asserted. Fed.R.Evid. 801, 802. The statement that an unidentified ex-customer made to Plaintiff is hearsay: it is an assertion made outside of court, used to prove that Ms. Aleman was in fact the new manager. It would therefore be inadmissible, and thus cannot be considered at the summary judgment stage.
Disparate treatment.
Regarding, Plaintiffs disparate treatment claim, a similarly situated employee is one who (1) "held the same job or responsibilities"; (2) "shared the same supervisor or had their employment status determined by the same person"; (3) had "essentially comparable violation histories"; and (4) engaged in "nearly identical" conduct to the conduct that resulted in the plaintiffs termination. Lee v. Kan. City S. Ry Co., 574 F.3d 253, 260 (5th Cir. 2009). Critically, the plaintiffs conduct must be "nearly identical" to the proffered comparator employee's conduct which did not result in termination the way Plaintiffs conduct did. Id.
Plaintiff proffers three potential comparator employees who he claims received better treatment. (Docket Entry 23, at 9-12.) The fist employee Plaintiff proffers is Jorge Martinez. (Docket Entry 23-1, at 7.) Mr. Martinez is also a Retail Sales Operator for Flowers and is supervised by Lozano, making Mr. Martinez a potential similarly situated employee. (Id. at 7-8.) Plaintiff reports a slew of incidences in which Mr. Martinez received more favorable treatment than Plaintiff. (Id. at 7-9.) However, Mr. Martinez is also a man, and therefore not a similarly situated employee outside the protected class. Therefore, a comparison to Mr. Martinez will not satisfy Plaintiff s prima facie case.
Plaintiff proffers Retail Sales Operator Rosemary Avila as another similarly situated female employee. (Docket Entry 23, at 11.) The evidence in the record suggests that Ms. Avila did have the same job responsibilities and supervisor as Plaintiff, but there is no record to suggest she had a similar disciplinary history or engaged in the same conduct of violating protocols that Plaintiff has. (Docket Entry 19-1, at 98-99.) As Plaintiff concedes, "Ms. Avila was not treated better in comparison to him in general" the only difference in treatment he can substantiate is that "Defendant did not harass Ms. Avila regarding her store's low performance and sales numbers as Defendant did to Plaintiff despite Plaintiffs store." (Docket Entry 23, at 11.) In and of itself, this does not make Ms. Avila a similarly situated employee, because, while an employee's conduct need not be entirely identical, their overall employment records must be comparable. Lee, 574 F.3d at 261. In this case, Plaintiff was terminated for failure to follow procedures; the allegation that Ms. Avila was not disciplined despite having "the lowest sales store in the company," is not a comparable infraction. See Ross v. Judson Indep. Sch. Dist, 993 F.3d 315, 322-23 (5th Cir. 2021). Therefore, Ms. Avila is also not a proper comparator.
As the final potential comparator, Plaintiff offers a Retail Sales Employee only identified as "Isabel." (Docket Entry 23, at 11.) Plaintiff alleges that Isabel is also a Retail Sales Operator under Lozano, and that she was treated better than Plaintiff (Id.) However, as with Ms. Avila, there is no evidence in the record to suggest that Plaintiff and Isabel had comparable employment records, or that Isabel's conduct was similar to the conduct that led to Plaintiffs termination. (Docket Entry 23-1, at 60-62.) Plaintiffs vague and conclusory statements to the contrary cannot support his prima facie case. Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1186 (5 th Cir. 1997) (finding the plaintiffs conclusory assertions insufficient to establish discrimination). Therefore, summary judgment should be granted on Plaintiffs sex discrimination claim. 2. Plaintiff's age discrimination claim.
At the time of Plaintiff s termination, he was 59 years old, covered by the protection of the TCHRA, which applies to individuals over age forty. Tex. Lab. Code § 21.051 (West 1993). As with Plaintiffs sex discrimination claim, the fourth factor of Plaintiffs prima facie age discrimination case is determinative: whether he can show that he was either replaced by a younger employee, or treated less favorably than a similarly situated younger employee. See Lee, 574 F.3d at 260.
For reasons similar to those discussed above, Plaintiff has not introduced sufficient evidence to demonstrate either that he was replaced by a younger employee or threated less favorably than any similarly situated employees. Plaintiff has not presented competent evidence regarding any replacement, and, for the reasons stated above, his disparate-treatment evidence as to any comparator besides Jorge Martinez. Mr. Martinez, however, is older than Plaintiff and therefore not outside the protected class. (Docket Entry 19-1, at 21.) Therefore, summary judgment should be granted as to Plaintiffs age discrimination claim.
B. Plaintiffs Retaliation Claim.
Defendant also seeks summary judgment on Plaintiffs retaliation claim. (Docket Entry 19, at 16-20.) As with Plaintiffs discrimination claims, retaliation claims under the TCHRA are also governed by the standards applicable to federal Title VII cases. See Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 633-34. "The analytical framework for a retaliation claim is the same as that used in the employment discrimination context." Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). To establish a prima facie retaliation case, a plaintiff must show that "(1) he engaged in protected activity; (2) he suffered an adverse employment decision; and (3) a causal link exists between the protected activity and the adverse employment decision." Id.
"[P]rotected activity can consist of either: (1) opposing any practice made an unlawful employment practice by [the TCHRA] (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing." EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016); Tex. Lab. Code Ann. § 21.055 (West 1993). A viable retaliation claim thus requires more than opposition alone; it requires opposition of a specified unlawful practice. See Id. at 240. While no "magic words" are required to invoke protected activity, an employee's statements and complaints "must in some way allege unlawful discrimination." See Broderickv. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006).
Plaintiff claims he engaged in protected activity because "sometime in 2018, he reached out through Defendant's company hotline regarding the discriminatory and harassing actions made towards him." (Docket Entry 23, at 16.) A copy of the complaint reveals that he complained of the following: (1) "condescending and harassing behavior," (2) that Lozano yelled at him when he came to the store and Plaintiff was in the bathroom while there were customers in the front of the store, (3), that Lozano "targets and tries to single out" Plaintiff, and (4) that Lozano gave Plaintiff write ups for things that were not his fault. (Docket Entry 32-1, at 79.) None of these complaints relate to allegations of activity prohibited by the TCHRA, namely sex or age discrimination. A review of Plaintiffs deposition and other evidence in the record does not reveal additional complaints specifically related to discrimination. (See Id. at 37-42.)
As there is no evidence in the record that Plaintiff engaged in protected activity; summary judgment should be granted as to Plaintiffs retaliation claim.
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that Flowers' Motion for Summary Judgment (Docket Entry 19) be GRANTED.
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. 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, conclusive 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. Am, 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. UnitedServs. Aula. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).