Opinion
SA-21-CV-00638-FB
03-07-2024
STARLETT C. HUNTER, Plaintiff, v. CROSSMARK, Defendant.
To Honorable Fred Biery, United States District Judge:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns Defendant Crossmark's Motion for Summary Judgment [#39]. The District Court referred this case for all pretrial proceedings on December 16, 2021. The undersigned therefore has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendant's motion be granted in full.
I. Background
Plaintiff Scarlett Hunter proceeding pro se filed this action on July 7, 2021, against Defendant Crossmark, her former employer, alleging unlawful discrimination and retaliation. Ms. Hunter filed two Charges of Discrimination against the Defendant with the Equal Employment Opportunity Commission (“EEOC”) and the Texas Workforce Commission Civil Rights Division (“TWC”) on February 13, 2020, and May 5, 2020. (Ex. A-1 February 2020 EEOC/TWC Charge of Discrimination [#39], at 31-35); (Ex. A-2 May 2020 EEOC/TWC Charge of Discrimination [#39], at 36-40.) She was issued two Notices of Right to Sue on April 8, 2020-one for each EEOC charge. (Ex. A-3 EEOC Letter [#39], at 42); (Ex. A-4 EEOC Letter [#39], at 44.) On May 13, 2022, the District Court entered an Order adopting the undersigned's Report and Recommendation on the motion to dismiss [#24], granting it in part as to Ms. Hunter's disability discrimination claim under the ADA (Count III) and denying it in part as to her claims of race and age discrimination and retaliation (Counts I, II, and IV), as well as ADA retaliation (Count II).
The undersigned notes these dates-of the filing of the charge, and the date the right to sue letter was issued-differ from those cited in the Report & Recommendation that was adopted on May 13, 2022. The dates contained in that Report & Recommendation were based on the information Ms. Hunter had provided in her original pleadings to the Court.
Defendant Crossmark now brings a Motion for Summary Judgment on the remaining claims: race discrimination under Title VII, Section 1981, and Chapter 21 of the Texas Labor Code (“Chapter 21”); age discrimination under the ADEA and Chapter 21; and retaliation in violation of the ADEA, Title VII, Section 1981, the ADA, and Chapter 21.
II. Summary Judgment Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed.R.Civ.P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). “After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted.” Westphal, 230 F.3d at 174.
III. Summary Judgment Record
Construing any disputed issue of fact in favor of Ms. Hunter, the summary record establishes the following facts, which are undisputed unless otherwise noted.
Ms. Hunter, an African-American woman, worked for Crossmark as a full-time Direct Sales Representative from November 30, 2018, until November 27, 2019, when she was terminated. Ms. Hunter was 57 years old at the time of her termination. (Ex. A TenBroeck Decl. [#39], at 29, ¶ 2-3.)
As a Direct Sales Representative, Ms. Hunter was expected to work during the hours of approximately 8 a.m. to 5 p.m., five days a week, Monday through Friday. (Ex. B Declaration of Berna Gaul (“Gaul Decl.”) [#39], at 61, ¶ 6.) Plaintiff's responsibilities as a Direct Sales Representative included visiting about 32-33 large retail and grocery stores per week within her assigned territory of south Houston, Texas. (Ex. B Declaration of Berna Gaul (“Gaul Decl.”) [#39], at 61, ¶ 5.) Her duties included building and maintaining store displays, packing or stocking shelves, and meeting with store management to promote products. (Ex. B Gaul Decl. [#39], at 61, ¶ 5); (Ex. A-6 [#39], at 58.) Ms. Hunter was expected to spend about an hour in each store to enable her to have high quality meetings with in-store decision makers. (Ex. B Gaul Decl. [#39], at 62, ¶ 6.) Crossmark's Employee Handbook noted that employees were “subject to disciplinary action” for certain offenses, including “[e]xcessive absenteeism or tardiness” and “[f]ailing to accurately report time worked or working ‘off-the-clock.'” (Ex. A-5 Crossmark Employee Handbook Excerpts [#39], at 54-55.)
Ms. Hunter was required to use the company's timekeeping software on a Crossmark-issued tablet to accurately record time spent at each store and the time spent driving. (Ex. A-5 Crossmark Employee Handbook Excerpts [#39], at 53.) Accurately recording time involved two steps. The first was to open a store project survey [“a ticket,” in internal lingo] upon or soon after arrival at the store, perform required store tasks and photograph displays, and then submit the ticket in store on completion of the tasks. (Ex. B Gaul Decl. [#39], at 62, ¶ 8.) The second was to separately submit total working time, which included four components-(1) hours worked per day, (2) drive time, (3) mileage, and (4) training time, through the Company's timekeeping application. (Ex. B Gaul Decl. [#39], at 62 ¶ 8.)
According to Ms. Gaul, she observed performance issues as soon as she became Ms. Huter's supervisor in March 2019. (Ex. B Gaul Decl. [#39], at 61, ¶ 9.) For example, on March 27, 2019, Plaintiff did not visit seven of her assigned stores. (Ex. B Gaul Decl. [#39], at 62-63, ¶ 10.) A few weeks later, payroll noticed a low drive time reported by Ms. Hunter and referred the issue to Ms. Gaul. Id. In July 2019, Ms. Gaul began having concerns that Ms. Hunter was reporting an infeasible number of stores visited per day, as she reported having visited 15 stores in 18 hours. (Ex. B Gaul Decl. [#39], at 63, ¶ 11.)
According to Ms. Gaul, several months later, in September 2019, she discovered that Ms. Hunter was not working the full Monday through Friday, was not submitting her ticket in store, and was reporting having completed tasks that she did not in fact complete. (Ex. B Gaul Decl. [#39], at 63, ¶ 12.) After discovering these issues, Ms. Gaul had a telephonic meeting with Plaintiff and Kimberly Shannon, another Retail Supervisor, who served as witness. (Ex. B Gaul Decl. [#39], at 63, ¶ 12.) Ms. Gaul memorialized the conversation in an email to Ms. Hunter and warned in that email that she would issue a final written warning should Plaintiff's performance continue to fall below expectations. (Ex. B-2 [#39], at 72.)
After the telephonic meeting, Ms. Hunter emailed Ms. Gaul, informing her that she had a colonoscopy, mammogram, and dental appointments that would require her to miss the following four Fridays. (Ex. B Gaul Decl. [#39], at 64, ¶ 14); (Ex. B-4 [#39], at 84); (Ex. O [#42], at 62.) According to Ms. Gaul, at the time she sent this email (also in September 2019), Plaintiff had already exhausted all of her sick, personal, and vacation leave. (Ex. B Gaul Decl. [#39], at 64, ¶ 14.) Ms. Gaul replied to Plaintiff's email, saying that she would approve the leave request for one of the Fridays for the colonoscopy appointment, but would not approve the other leave requests for the other three Fridays. (Ex. B Gaul Decl. [#39], at 64, ¶ 12, 14, 16); (Ex. B-4 “Medical Sharing” Email [#39], at 84.) When Ms. Gaul responded to Plaintiff's email, she copied Regional Manager and Gaul's direct supervisor, Donald Gober, as well as Ms. Shannon. Ms. Hunter then replied by email to Ms. Gaul, complaining that she had inappropriately shared her medical information. (Ex. A-2 May 2020 EEOC/TWCD Charge of Discrimination [#39], at 37-40); (Ex. C Hunter Dep. [#39], at 155, Dep. 78:14-79:25); (Ex. B Gaul Decl. [#39], at 64, ¶ 14); (Ex. B-5 “Medical Sharing” Email Complaint [#39], at 86.)
According to Ms. Gaul, payroll also flagged issues with Ms. Hunter's reports. (Ex. B Gaul Decl. [#39], at 64, ¶ 16.) Such issues included reporting an unreasonable amount of time worked per day, working overtime without authorization, taking PTO when already exhausted,and reporting more or less drive time as compared to other Direct Sales Representatives. (Ex. B Gaul Decl. [#39], at 64, ¶ 16.) Mr. Gober emailed Ms. Gaul on October 25, 2019, and referred to Ms. Hunter's tickets as reflective of reporting issues. (Ex. B Gaul Decl. [#39], at 64, ¶ 16); (Ex. B-7 Incremental Displays Email [#39], at 95-96.) Ms. Gaul forwarded this email to Ms. Hunter on November 1, 2019, and stated that reporting needed to be accurate. (Ex. B Gaul Decl. [#39], at 64, ¶ 16); (Ex. B-7 Incremental Displays Email [#39], at 95-96.)
Ms. Hunter implies in her response that she may not have exhausted all her leave and refers the Court to an email in support. (Pl. Mot. to Oppose Summ. J. (“Pl. Opp.”), at 2, ¶ 5); (Ex. N Sick Time Email [#42], at 58.) However, the email submitted by Plaintiff was dated December 13, 2018. The year in which the events at issue in this case occurred is 2019.
On October 28, 2019, Ms. Gaul was notified that Ms. Hunter applied for a promotion to be a Business Account Manager for Crossmark's HEB Team. (Ex. B Gaul Decl. [#39], at 64, ¶ 17); (Ex. B-8 [#39], at 98.) Ms. Hunter emailed Ms. Gaul saying a recruiter told her there were already two great candidates. (Ex. B-9 [#39], at 100.) Ms. Gaul states in her declaration that she was not involved in the promotion process but noted that Ms. Hunter would not have been eligible for the promotion because she had not been performing to the level of expectations in her then-current position. (Ex. B Gaul Decl. [#39], at 65, ¶ 18.) Ms. Hunter alleged in her second EEOC discrimination charge that a white individual was promoted, but when deposed, Ms. Hunter refused to identify the individual who was hired for the HEB position. (Ex. A-2 May 2020 EEOC/TWC Charge of Discrimination [#39], at 37); (Ex. C Hunter Deposition Excerpts (“Hunter Dep.”) [#39], at 160-161, 91:19-93:20.) She has not otherwise submitted evidence on who was promoted-or the race or age of that person.
On November 3, 2019, Ms. Gaul discovered that Ms. Hunter's Crossmark records reflected that Ms. Hunter was working an unapproved schedule by, for example, visiting ten stores on November 4 and only one store on November 8. (Ex. B Gaul Decl. [#39], at 65, ¶ 19.) Ms. Gaul additionally discovered on November 3 that Ms. Hunter had reported working in store while at the same time attending a weekly conference call, which Crossmark did not allow. Id. Ms. Gaul additionally discovered that Ms. Hunter reported working an hour of unapproved overtime. Id. Ms. Gaul thus emailed, copying Mr. Gober, Ms. Hunter asking about the entries and reiterating that the job required her to spread out the thirty-two to thirty-three calls per week across five days. Id.
On November 12, 2019, Ms. Hunter emailed Ms. Gaul to inform her that weather conditions made it unsafe to drive. (Ex. B-11 [#39], at 104.) She further added that her car was in for maintenance for thirty days, and suggested she therefore would be unable to visit locations due to lack of transportation. Id. Ms. Gaul then emailed Ms. Hunter saying that she would like to discuss via phone, but Ms. Hunter responded saying her phone was malfunctioning and that she would call Ms. Gaul once it was fixed. (Ex. B-12 [#39], at 106.)
According to Ms. Gaul, at this point, she decided to review Ms. Hunter's November time entries and discovered that Ms. Hunter reported working 10 hours from November 1, 2019, to November 7, 2019, that she did not appear to have actually worked. (Ex. B Gaul Decl. [#39], at 66, ¶ 23.) Thus, on November 12, 2019, Ms. Gaul submitted a request for assistance to Employee Relations on how to proceed. (Ex. B-13 [#39], at 108-09.) Ms. Gaul states in her declaration that she recommended suspension at this time because of the hours discrepancies, Ms. Hunter's admission that she would not be able to complete normal store visits for thirty days, and Ms. Gaul's suspicion that Ms. Hunter lived in San Antonio. (Ex. B Gaul Decl. [#39], at 66, ¶ 24); (Ex. B-13 Ex. B-13 Request for Assistance [#39], at 108-09.) Barbara Dixon, an Employee Relations Partner, approved the suspension. (Ex. B Gaul Decl. [#39], at 66, ¶ 25.)
On November 14, 2019, Ms. Gaul orally advised Ms. Hunter of the suspension after Ms. Hunter failed provide a satisfactory response to Ms. Gaul's concerns about Ms. Hunter's lack of transportation, inaccurate reporting, and suspicion about her living outside her assigned territory. (Ex. B Gaul Decl. [#39], at 66, ¶ 25.) Ms. Gaul sent Ms. Hunter an email memorializing this conversation on November 14, 2019. (Ex. B-14 [#39], at 111.)
Ms. Gaul thereafter conducted an investigation in which she reports that she discovered that Ms. Hunter was overreporting hours. (Ex. B Gaul Decl. [#39], at 66, ¶ 26); (Ex. B-15 Investigation Notes [#39], at 113-34.) According to Ms. Gaul, her investigation reinforced her suspicions about Ms. Hunter living outside her assigned territory because she found a screenshot of a hotel reservation in Houston on Ms. Hunter's tablet. (Ex. B Gaul Decl. [#39], at 66, ¶ 27); (Ex. B-15 Investigation Notes [#39], at 134.) Crossmark requires Direct Sales Representatives to live in their assigned territories-for Ms. Hunter, Houston-because of the significant “in-store” requirement. (Ex. B Gaul Decl. [#39], at 61, ¶ 5, 6.) Ms. Gaul had previously suspected Ms. Hunter lived outside Houston when she discovered in November 2019 that Plaintiff's listed addresses included only a P.O. Box in San Antonio and a hotel in Katy, Texas. (Ex. B Gaul Decl. [#39], at 65, ¶ 20.) Ms. Hunter maintains that she lived in Houston but has not provided the Court with sworn testimony or any other competent evidence that establishes that her residence was in Houston at that time.
On November 15, 2019, Ms. Gaul conveyed the findings of her investigation to Employee Relations and inquired as to how to proceed given those findings. (Ex. B-16 [#39], at 136-39.) On November 19, 2019, Ms. Dixon in Employee Relations told Ms. Gaul to proceed with termination of Ms. Hunter, to code it as involuntary and for cause, and to inform Ms. Hunter it was due to falsification of reporting. (Ex. B-17 [#39], at 141.) Ms. Gaul therefore attempted to set up a call with Ms. Hunter several times, but Ms. Hunter was unavailable. (Ex. B-18 [#39], at 143-46.) Thus, Ms. Dixon directed Ms. Gaul to proceed with the termination on November 27, 2019. (Ex. B-19 [#39], at 148.)
Ms. Hunter was replaced by Byron Woodard, an African American man who was 47 at the time of the replacement (at least 10 years younger than Plaintiff). (Ex. B Gaul Decl. [#39], at 67, ¶ 31); (Ex. A TenBroeck Decl. [#39], at 30, ¶ 6.) As was noted above, after she was terminated, Ms. Hunter filed two charges of discrimination complaining about age and race discrimination and retaliation with the EEOC, one in February 2020 and a second in May 2020.
IV. Analysis
Crossmark is entitled to summary judgment on all of Ms. Hunter's remaining claims.
First, Ms. Hunter has not adequately supported a prima facie case on any of the claims. But even if she had, Ms. Hunter has not met her burden to produce evidence that Crossmark's legitimate, non-discriminatory reasons for suspending and terminating her are pretext for unlawful discrimination or retaliation.
A. Ms. Hunter cannot prevail on a claim of race or age discrimination.
Ms. Hunter's race discrimination claims arise under Title VII, Chapter 21, and Section 1981. Title VII prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Chapter 21 of the Texas Labor Code also prohibits discrimination based on “race, color, . . . or national origin.” Tex. Lab. Code § 21.051. Section 1981 protects against race-based discrimination by providing that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts.” 42 U.S.C. § 1981(a). Claims under Section 1981 and the Texas Labor Code are governed by the same standards as Title VII, except that Section 1981 does not require exhaustion of administrative remedies. Chen v. Ochsner Clinic Found., 630 Fed.Appx. 218, 227 (5th Cir. 2015) (per curiam); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012). Ms. Hunter also brings age discrimination claims under Chapter 21 and the ADEA. Chapter 21 age discrimination claims brought under the Texas Labor Code parallel those brought under the ADEA, and thus both are evaluated under the McDonnell Douglas framework discussed infra. Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012).
A plaintiff can prove intentional discrimination through direct or circumstantial evidence. See Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 235 (5th Cir. 2016). Where a plaintiff offers only circumstantial evidence of discrimination, as here, the McDonnell Douglas framework requires her to establish a prima facie case of discrimination, which, only if established, raises a presumption of discrimination. See Rutherford v. Harris Cty., Tex., 197 F.3d 173, 179-80 (5th Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). If established, a plaintiff's prima facie case creates an inference of discrimination that shifts the burden of production to the defendant to come forward with evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Rutherford, 197 F.3d at 180.
This burden is one of production, not persuasion, and can involve no assessment of credibility. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once the employer articulates a legitimate nondiscriminatory reason and produces competent summary judgment evidence in support of that stated reason, the inference of discrimination disappears, and the burden shifts back to Ms. Hunter to produce evidence that demonstrates the employer's articulated reason is merely pretext for discrimination. Owens v. Circassia Pharm., Inc., 33 F.4th 814, 826 (5th Cir. 2022).
1. Ms. Hunter has not presented evidence that supports a prima facie case of age or race discrimination.
Ms. Hunter has not met her burden to produce evidence that demonstrates a prima facie case of race and age discrimination on the basis of her alleged wrongful suspension and termination. To establish a prima facie case of race or age discrimination, Ms. Hunter must show that (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) she was replaced by someone outside her protected class or others outside the protected class were treated more favorably that she was. Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006) (race discrimination); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) (quoting Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003)) (age discrimination). In this case, the first element is not contested, as Ms. Hunter is Black and was in her late 50s at the times relevant to this lawsuit. And Crossmark concedes that she experienced two adverse employment actions-suspension and termination. Crossmark disputes that she has demonstrated that she is qualified, that she has demonstrated that she experienced any other adverse employment actions, and that she has shown she was treated less favorably than those outside her protected classes.
a. Qualified
Crossmark contends that Ms. Hunter has not demonstrated that she was qualified for the position she held because (1) she did not live in Houston (her territory); and (2) she did not have reliable transportation. As to the first point, the record is ambiguous as to whether Ms. Hunter lived in Houston or elsewhere. There is certainly evidence that Ms. Gaul suspected Ms. Hunter lived outside of Houston based on certain circumstantial evidence she became aware of. That evidence sheds light on Ms. Gaul's motives for disciplining and terminating Ms. Hunter but does not conclusively establish whether Ms. Hunter lived in Houston or not. Given that it is undisputed that Ms. Hunter had been hired by Crossmark and worked for Crossmark for years prior to her suspension and termination, there is evidence that she was qualified. The dispute in this case is more about whether she had performance problems.
As for the transportation issue, this could perhaps go to whether Ms. Hunter continued to be qualified as of the time of her termination. But issues with her performance, including her suspension, arose before her car was rendered unavailable for a month. Regardless, Ms. Hunter's prima facie cases of age and race discrimination are deficient for other reasons.
b. Adverse Employment Actions
Crossmark concedes Ms. Hunter experienced adverse employment actions but contends Ms. Hunter has only pleaded that she experienced two adverse employment actions (termination and suspension). The undersigned notes that although Ms. Hunter has complained at various points in her pleadings and during her deposition about myriad aspects of her employment, she does not argue in her response that she suffered any adverse employment actions due to her race or age beyond her termination and suspension.
As Crossmark points out, there is evidence in the record that Ms. Hunter also applied for but did not obtain a promotion. This is not included in Ms. Hunter's live pleading, and she does not argue that her discrimination claims are based on this event in her response. Of course, the failure to promote an employee can qualify as an adverse employment action, too-even under the preHamilton standard for adverse employment actions. Johnson v. PRIDE Indus., Inc. J F.4th 392, 406 (5th Cir. 2021) (discussing the failure-to-promote theory); Hamilton v. Dallas Cty., 79 F.4th 494, 497 (5th Cir. 2023). Crossmark notes that even if the Court construes Ms. Hunter's pleadings to raise a failure-to-promote claim (which it argues the Court should not), Ms. Hunter has not met her burden on the fourth element of the prima facie case, which is to produce evidence that the person who was promoted instead of her was outside her protected class. The undersigned agrees, given that during her deposition, Ms. Hunter refused to identify what person was promoted instead of her, let alone that person's age or race. (Ex. C Hunter Dep. [#39], at 160-162, Dep. 91:19-93:20.)
The law on what qualifies as an adverse employment action has recently shifted. According to the Fifth Circuit, an adverse employment action is an act related to “hiring, firing, compensation, or the ‘terms, conditions or privileges' of her employment,” and adverse employment actions are no longer limited to “ultimate employment actions,” like hiring, firing, and demotions. Hamilton v. Dallas Cty., 79 F.4th 494, 497 (5th Cir. 2023). Crossmark does not dispute that Ms. Hunter's suspension and termination are adverse employment actions under the governing law. (Mot. for Summ. J. [#39], at 12.) Thus, only the termination and suspension are at issue here.
c. Replaced by/Treated Less Favorably Than Somone Non-Black, Younger
As for the fourth element of the prima facie case, the evidentiary record established that after her termination, Ms. Hunter was replaced by someone Black and at least ten years younger than her. So for her discrimination claims based on her termination, Ms. Hunter has failed to demonstrate a prima facie case of race discrimination, as she was replaced by someone of the same race. But the record does establish that she was replaced by someone substantially younger than she was (at least 10 years), even if he was also over 40. See Flanner v. Chase Inv. Servs. Corp., 600 Fed. App'x. 914, 919 (5th Cir. 2015) (per curiam) (stating that the exact age difference required to prevail on an age discrimination claim when a plaintiff is replaced by another person over 40 but younger than plaintiff has not been defined, but calling an age difference of only five years a “close call”).
With regard to the age and race discrimination claims based on her suspension, Crossmark argues that Ms. Hunter has not presented evidence to demonstrate that other nonBlack, younger employees engaged in behavior similar to hers but were not suspended. The undersigned agrees. The record is devoid of any such evidence of non-Black or younger employees who had similar performance issues to Ms. Hunter's but were not suspended. And thus, she has not adequately demonstrated a prima face case of age and race discrimination based on her suspension.
For the foregoing reasons, Ms. Hunter has not established a prima facie case of race discrimination, and the Court could grant summary judgment the race discrimination claims and decline to reach Crossmark's additional arguments in support of their motion on these claims. But because the question of whether Ms. Hunter has stated a claim for age discrimination, at least as to her wrongful termination claim, is a closer question, the undersigned will proceed to the next step of the McDonnell Douglas analysis.
2. Crossmark has met its burden to produce evidence of legitimate, non-discriminatory reasons for suspending and terminating Ms. Hunter.
Even if Ms. Hunter could prove a prima facie case of race and age discrimination based on the suspension and termination, she would not necessarily prevail on her claims. That is because the burden would shift to Crossmark to present evidence of legitimate, non-discriminatory reasons for Ms. Hunter's suspension and termination, which it has.
Crossmark has presented evidence of its legitimate, non-discriminatory reasons for Ms. Hunter's suspension. According to Ms. Gaul, Ms. Hunter was suspended on November 14, 2019, based on Gaul's concerns about Ms. Hunter's lack of transportation, inaccurate reporting, and suspicion about her living outside her assigned territory. (Ex. B Gaul Decl. [#39], at 66, ¶ 25); (Ex. B-14 [#39], at 111.) As is outlined in more detail above, the record contains evidence that the inaccurate reporting and hours discrepancies had occurred several times by the time Ms. Gaul recommended suspension-March, July, September, October, and November 2019. (Ex. B Gaul Decl. [#39], at 62-63, 64-65, 66, ¶ 9-12, 16, 19, 23); (Ex. B-6 [#39], at 90-93.) Ms. Gaul also testified that she met with Ms. Hunter to discuss these concerns, and advised Ms. Hunter that if they did not improve, she would receive a written warning. (Ex. B Gaul Decl. [#39], at 63, ¶ 12); (Ex. B-2 [#39], at 72.) Crossmark has met its burden of production with regard to the suspension.
Crossmark has also presented evidence of legitimate, non-discriminatory reasons for Ms. Hunter's termination. Ms. Hunter was terminated on November 27, 2019. (Ex. B-19 [#39], at 148.) According to Ms. Gaul, following Ms. Hunter's suspension, Ms. Gaul conducted an investigation in which she used Ms. Hunter's company-issued tablet to compare time stamps on photographs on Ms. Hunter's tablet with her total reported working time Ms. Gaul stated in her declaration that she discovered that Ms. Hunter was overreporting hours that she did not work, and reporting working in “store Y” when it would have been impossible after leaving “store X” based on travel time between each. (Ex. B Gaul Decl. [#39], at 66, ¶ 26); (Ex. B-15 Investigation Notes [#39], at 113-34.) Ms. Gaul also stated that she discovered a screenshot of a hotel reservation for Houston, suggesting that Ms. Hunter did not reside in Houston as required by Crossmark, which she had already suspected. (Ex. B Gaul Decl. [#39], at 66, ¶ 27); (Ex. B-15 Investigation Notes [#39], at 113-34.) According to Crossmark, it was for these reasons-which are legitimate and non-discriminatory-that Ms. Hunter was terminated.
3. Ms. Hunter has not presented evidence that rebuts Crossmark's proffered reasons.
Now that Crossmark has presented the evidence of its legitimate, non-discriminatory reasons for Ms. Hunter's suspension and termination, the burden shifts back to Ms. Hunter. At this stage, she must do more than present evidence that Crossmark's proffered reasons are false; instead, she must present evidence that these reasons are pretext for unlawful race or age discrimination. See Owens, 33 F.4th at 833 (“Thus, a reasonable trier of fact could find that [the employer's] proffered justification for terminating [the employee] is false. But that alone is not enough. The evidence must permit a reasonable inference that [the employer's] false reason was pretext for the true, discriminatory, reason.”). She has not met this burden.
With regard to the proffered reason for her suspension, Ms. Hunter disputes Ms. Gaul's contention that she lived outside her territory, claiming that she in fact lived in Houston. The Court notes, however, that Ms. Gaul testified that it was her belief (based on her review of certain records) that Ms. Hunter was living out of territory. Ms. Gaul may have been mistaken. However, evidence that an employer held a mistaken belief that led it to take an adverse employment action does not constitute evidence of pretext. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive.”). In any event, that was just one of multiple reasons articulated in support of Ms. Hunter's suspension (and ultimately, her termination). And Ms. Hunter has not presented any other evidence that would suggest that Crossmark's proffered reasons, even if untrue or based on a mistaken belief, were pretext for age or race discrimination.
With regard to Crossmark's proffered reasons for her termination, Ms. Hunter appears to suggest that Crossmark's stated reason to her for terminating her-falsification of reporting- was pretextual because Ms. Gaul directed employees to code an hour at each store so that the client would receive a consistent bill, even if the actual time worked was not an hour. (Ex. B-17 [#39], at 141); (Am. Compl. [#12], at 4, ¶ 19); (Pl. Opp. [#42], at 3, ¶ 7.) Again, it is not enough for Ms. Hunter to demonstrate that the stated reason for termination is untrue. But in this instance, Ms. Hunter does not support her allegation of the reason's falsity with competent summary judgment evidence either. “[Unsubstantiated assertions are not competent summary judgment evidence.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotext, 477 U.S. at 324). Ms. Hunter has not submitted specific evidence in support of the (unsworn) assertion that she was told to misreport her hours. See id. (“The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim.”). Meanwhile, Ms. Gaul has submitted a declaration stating that, while she encouraged all Direct Sales Representatives to spend about an hour at each store so that they could have meaningful interactions with store decision-makers, she never instructed employees to falsify their time records. (Ex. B Gaul Decl. [#39], at 67, ¶ 36.) Additionally, Ms. Gaul has recommended the termination of others for falsifying time records, including Dave Mencl and William Petit. (Ex. B Gaul Decl. [#39], at 67, ¶ 35.) The two employees who were terminated are both white, and one was younger than Ms. Hunter. (Ex. A TenBroeck Decl. [#39], at 29, ¶ 5.) This evidence further undermines Ms. Hunter's pretext argument.
Ms. Hunter also appears to suggest that issues with the timekeeping software were the cause of her reporting issues, and that other individuals outside her protected class-“Ruby Massie (White of about 30-40 years of age), Terry Priest (White of about 40 to 50 years of age), and Lesa Baker (White of about 30-40 years of age)”-also experienced these issues but were not suspended or terminated. (Ex. A-1 February 2020 EEOC/TWC Charge of Discrimination [#39], at 33.) Ms. Gaul disputes this, contending that she does not know a Lesa Baker, and that Massie and Priest did not complain about inaccurate time stamps. (Ex. B Gaul Decl. [#39], at 67, ¶¶ 33-34.) However, this factual dispute is immaterial. Even if it is true that those other employees experienced or raised concerns about system malfunctions that caused time reporting issues, Ms. Hunter has not presented evidence that irregularities in their time reporting were reported to Ms. Gaul by payroll or otherwise observed by Ms. Gaul. Thus, Ms. Hunter has not shown that others outside her protected class were treated more favorably under the same circumstances and that therefore Crossmark's proffered reason for its actions is pretext for discrimination.
In general support of her argument that Crossmark's proffered reasons for her suspension and termination are pretext, Ms. Hunter directs the Court to records of her good performance, such as complimentary emails. Given that Crossmark did not proffer that Ms. Hunter was terminated due to generalized poor performance, this is neither here nor there. Crossmark has identified specific incidents and concerns that motivated the suspension and termination, and nothing in the records Ms. Hunter points to contradicts the specific incidents and issues identified by Crossmark. Moreover, evidence of her “prior good performance is insufficient to show pretext in light of her more recent performance problems.” Martin v. Kroger Co., 65 F.Supp.2d 516, 552 (S.D. Tex. 1999) (aff'd) Martin v. Kroger Co., 224 F.3d 765 (Table), 2000 WL 992237 (5th Cir. 2000).
In sum, even if there were adequate evidence to support a prima facie claim of race and age discrimination based on her suspension and termination, Ms. Hunter has not presented sufficient evidence to suggest that Crossmark's proffered reasons for its adverse employment actions are pretext for unlawful discrimination. Crossmark is therefore entitled to summary judgment on Ms. Hunter's age and race discrimination claims.
B. Ms. Hunter cannot prevail on her claims of retaliation under any statute.
In support of her retaliation claims, Ms. Hunter has invoked Title VII, Section 1981, the ADEA, ADA, and Texas Labor Code. Crossmark is entitled to summary judgment on the retaliation claims, some of which are unexhausted.
1. Scope of retaliation claims the Court can consider
To bring a retaliation claim in federal court under the ADA, ADEA, Title VII, or the Texas Labor Code, Ms. Hunter must first exhaust her retaliation claim by filing a charge of discrimination with the EEOC or Texas Workforce Commission. Williams v. Tarrant County College Dist., 717 Fed. App'x. 440, 445 (5th Cir. 2018) (per curiam) (ADA and Texas Labor Code); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970) (Title VII); Foster v. Nat'l Bank of Bossier City, 857 F.2d 1058 (5th Cir. 1988) (ADEA).
In addition to Title VII and the Texas Labor Code, Ms. Hunter also invokes Section 1981 as a statutory basis for her race discrimination and retaliation claims. Section 1981, a Reconstruction Era law, does not have an exhaustion requirement for race discrimination and retaliation claims. Chen v. Ochsner Clinic Found., 630 Fed.Appx. 218, 227 (5th Cir. 2015) (per curiam); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012). But for the reasons explained, infra, Ms. Hunter has not asserted that she was retaliated against for making complaints about race discrimination to Crossmark. In other words, she has not presented evidence that she engaged in a protected activity. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (setting forth elements of a prima facie Section 1981 retaliation claim). Crossmark is therefore entitled to summary judgment on Ms. Hunter's Section 1981 retaliation claim, too.
In this case, as is explained above in detail, Ms. Hunter was suspended on November 14, 2019, and terminated on November 27, 2019 (after the termination was approved on November 19). (Ex. B-17 [#39], at 141); (Ex. B-19 [#19], at 147.) She subsequently filed two EEOC charges. The first EEOC charge, filed in February 2020, alleges age and race discrimination, emphasizing her suspension and her termination, but does not indicate that she made any internal complaints to Crossmark that she was being discriminated against or treated less favorably due to her age or race. (Ex. A-1 February 2020 EEOC/TWC Charge of Discrimination [#39], at 3135.) The only alleged retaliation described in the charge is that she believes she has been “discriminated against . . . for complaining about [her] medical information being shared with other employees in violation of the [ADA].” Id. The complaints she made about the dissemination of her medical information occurred in September 2019. (Ex. B-19 [#39], at 86.) Thus, the only exhausted retaliation claim in this first charge is based on her September 2019 internal complaint about the dissemination of her medical information, which she contends constitutes ADA retaliation.
Ms. Hunter filed a second EEOC charge on May 5, 2020. (Ex. A-2 May 2020 EEOC/TWC Charge of Discrimination [#39], at 36-40.) In this charge, she again raises race discrimination but does not contend that she made any internal complaints to Crossmark that she was being discriminated against for her race (or age or sex). Instead, the only incident of alleged retaliation described in this second charge is again that Ms. Gaul retaliated against her for complaining about her disclosure of medical information to other employees, although in this EEOC charge, she invokes Title VII instead of the ADA.
To summarize, the only exhausted retaliation claims in this case are those based on Ms. Gaul's alleged retaliation in September 2019 against Ms. Hunter for complaining to Crossmark about Ms. Gaul's improper dissemination of her medical information, which Ms. Hunter contends violates the ADA and Title VII's retaliation prohibitions. (To state the obvious, Ms. Hunter cannot be arguing that she was terminated or suspended for filing EEOC complaints because she filed the complaints after her suspension and termination. And to the extent Ms. Hunter is arguing that she was retaliated for going to the EEOC after the suspension and termination, but before the first charge was filed, there is uncontroverted evidence in the record that Ms. Gaul had no knowledge that Ms. Hunter had gone to the EEOC until after she was terminated. (Ex. B Gaul Decl. [#39], at ¶ 32.)
2. Crossmark is entitled to summary judgment on all retaliation claims because Ms. Hunter has not met her burdens under McDonnell Douglas.
The McDonnell Douglas burden-shifting framework also applies to retaliation claims. Thus, in the retaliation context, (1) a plaintiff must first show a prima facie case of retaliation; (2) the burden then shifts to the employer to present a legitimate, non-retaliatory reason for the adverse employment action; and (3) if that burden is met, the burden shifts to the plaintiff to show that the employer's reason is pretext for unlawful retaliation. Campos v. Steves & Sons, Inc., 10 F.4th 515, 525 (5th Cir. 2021) (Texas Labor Code); Outley v. Luke & Associates, Inc., 840 F.3d 212, 219 (5th Cir. 2016) (Title VII); Sherrod v. American Airlines, 132 F.3d 1112, 1122 (5th Cir. 1998) (ADA). Here, Ms. Hunter cannot even make out a prima facie case of retaliation on her Title VII retaliation claim. She does not adequately support an ADA retaliation claim either. But even if she had, she has not presented evidence that rebuts Crossmark's proffered legitimate, non-discriminatory reasons for her termination and suspension.
(a) Prima facie case
To show a prima facie case of retaliation, a plaintiff must demonstrate (1) that she engaged in activity protected by the statute, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th Cir. 2014) (Title VII and Texas Labor Code); Feist v. La., Dep't of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (ADA and Title VII retaliation) . As was discussed above, the adverse employment actions at issue in this case are Ms. Hunter's suspension and termination.
As is explained above, the protected activity described in her charges-and thus that can give rise to a properly exhausted retaliation claim-were her internal complaints about Ms. Gaul disseminating her private medical information. This is not a protected activity under Title VII or the ADA (and for the same reasons, the Texas Labor Code).
An employee has engaged in activity protected by Title VII if she has either (1) “opposed any practice made an unlawful employment practice” by Title VII or (2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII, even by lodging an informal complaint. 42 U.S.C. § 2000e-3(a); Hagan v. Echostar Satellite LLC, 529 F.3d 617, 626 (5th Cir. 2008). Title VII protects employees from discrimination based on sex, race, color, national origin, and religion. 42 U.S.C. § 2000e-2(a). Thus, a complaint about unauthorized dissemination of medical information, without any allegation that the dissemination was motivated by the complainant's race, is not a protected activity under Title VII (or any other statute prohibiting race discrimination). The opposition clause of § 2000e-3(a) requires the employee to demonstrate that she had at least a “reasonable belief” that the practices she opposed were unlawful under Title VII. Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981). Given that Title VII does not address medical information at all and concerns discrimination based on membership in protected classes like race and sex, any belief that disseminating an employee's medical information without authorization violates Title VII would not be reasonable.
Similarly, an employee engages in activity protected by the ADA when she opposes any practice made unlawful by those statutes or if she makes a charge, testifies, assists or, participates in investigations, proceedings, or hearings under the ADA. 42 U.S.C. § 12203(a). Under the ADA, there is no requirement that Ms. Hunter suffer from an actual disability; where an employee has a good faith belief that she is disabled or perceived as disabled, making a request for reasonable accommodation or complaining about ADA violations may constitute protected activity. Tabatchnik v. Continental Airlines, 262 Fed. App'x 674, 676 & n.1 (5th Cir. 2008) (per curiam). This is a closer call than with the Title VII retaliation claim. The Court previously dismissed Ms. Hunter's ADA discrimination claim. But the question here is not whether she is actually disabled, it is whether she has presented evidence that she had a good faith belief that she was disabled or perceived as disabled and evidence that she made a request for reasonable accommodation or complained about ADA violations. The undersigned does not believe the record supports the conclusion that Ms. Hunter's internal complaints about her supervisor's dissemination of her medical information qualifies as protected activity under the ADA, or that her email asking for time off for doctor's appointments would either. But the Court need not reach that issue. Summary judgment is also appropriate for the reasons articulated in the next section.
Crossmark also argues that Ms. Hunter cannot show a causal nexus between the protected activity (her complaints about the dissemination of medical information) and her suspension and termination. Given that the complaints the medical information were made to and about Ms. Gaul, who was involved in the termination and suspension decisions, and the email complaints and the suspension and termination all occurred within two months, the undersigned disagrees.
(b) Crossmark has met its burden to produce evidence of legitimate, non-discriminatory reasons for Ms. Hunter's termination and suspension, and she has not presented adequate evidence of pretext.
As is addressed in detail above, Crossmark has met its burden to produce evidence of legitimate, non-discriminatory reasons for suspending and terminating Ms. Hunter. Crossmark proffered evidence of performance issues-e.g., hours discrepancies, and suspected failure to live in her assigned territory as required by Crossmark. (Ex. B Gaul Decl. [#39], at 61-62, 66, ¶¶ 6, 9, 24.) So at this point, the burden shifts back to Ms. Hunter. And again, she must do more than present evidence that Crossmark's proffered reasons are false; instead, she must present evidence that these reasons are pretext for unlawful retaliation for complaining about the dissemination of her medical information discrimination. See Owens, 33 F.4th at 833. She has not met this burden.
Ms. Hunter's EEOC charges suggest that Crossmark failed to consider her for a promotion in retaliation for her complaint to Ms. Gaul about sharing her medical information. (Ex. A-2 May 2020 EEOC/TWC Charge of Discrimination [#39], at 37.) Although Ms. Gaul was notified that Ms. Hunter applied for the promotion, Ms. Gaul was not involved in the promotion process. (Ex. B Gaul Decl. [#39], at 65, ¶ 18). Without involvement from Ms. Gaul in that process, there is no evidence of a causal nexus between her complaint and the failure to obtain promotion. So even if the Court construes Ms. Hunter's pleadings to also give rise to a retaliation claim based on her failure to be promoted, Ms. Hunter cannot make a prima face case.
In summary, Ms. Hunter cannot prevail on a retaliation theory with regards to her suspension and termination for the same reasons that she cannot prevail on her claims of age or race discrimination. She has not presented evidence that rebuts Crossmark's legitimate, nondiscriminatory reason for suspending and terminating her-namely, the performance issues described supra. (Ex. B-17 [#39], at 140-41.) Ms. Hunter has not demonstrated that Crossmark's stated reasons for suspending and terminating her are pretext, or presented evidence that would allow a reasonable factfinder to conclude that she was suspended and terminated for engaging in protected activity, and thus cannot prevail on any of her retaliation claims.
V. Conclusion
In summary, having considered the Defendant's motion for summary judgment, the response, the reply, and the summary judgment record, the undersigned recommends that Defendant Crossmark's Motion for Summary Judgment [#39] be GRANTED.
VI. Instructions for Service and Notice of Right to Object/Appeal
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. 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).