Opinion
Case No. 02-41228-DML, (Jointly Administered).
May 14, 2008
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING TRUSTEE'S OBJECTIONS TO CLAIM NO. 466 FILED BY TERESA DE JESUS RODRIGUEZ (Docket Nos 952 and 1055)
On May 7, 2008 came on for consideration the Objections to Claim No 466 filed by Teresa de Jesus Rodriguez (the "Objections") filed by Michael G Lawrence, Liquidating Trustee (the "Trustee") for the INSpire Creditors Trust (the "Trust") created pursuant to the Amended Plan of Reorganization filed and confirmed by the Debtors, INSpire Insurance Solutions, Inc. and INSpire Claims Management, Inc (collectively "INSpire"). After considering the pleadings, the evidence and the argument of counsel, the Court makes the following Findings of Fact and Conclusions of Law related to the Objections
Appearances
1 A Notice of Hearing regarding the Objections was sent via Federal Express overnight delivery and regular first class mail to Ms Rodriguez on April 1, 2008 (Docket No 1125) advising that the hearing was set May 7, 2008 at 1 30 p m The original Notice of Hearing related only to the Trustee's first objection to the claim of Ms Rodriguez. Consequently, an Amended Notice of Hearing linking the hearing to both of the Objections filed by the Trustee was later filed by the Trustee and served by the Trustee on Ms Rodriguez on April 3, 2008 (Docket No 1126). The Trustee's Objections were called in open court and, other than the Trustee, his counsel and his designated witnesses, no one appeared
Jurisdiction
2 This Court has jurisdiction over this bankruptcy case pursuant to 28 U S C. section 1334 This case and all related matters have been referred to this Court pursuant to 28 U S C. section 157. The Trustee's Objections constitutes a "core" proceeding pursuant to section 157(B)(2)(A) and (O).
Findings of Fact
3 Ms Rodriguez was employed by INSpire for approximately two and a half years. The record reflects that during the course of her two and a half year employment, Ms. Rodriguez was chronically absent from work Indeed, in her short period of employment, she missed approximately 125 days of work. From June 1999 through February 2001, whenever Ms. Rodriguez made an appropriate request from INSpire's human resources department and supported such request with the necessary medical certification, INSpire routinely granted her leaves of absence due to pregnancy, childbirth, or related conditions
Ms Rodrguez was employed by INSpire Claims Management, Inc, a wholly-owned subsidiary of INSpire Insurance Solutions, Inc, which had its offices in San Diegom California.
See Trustee Exhibit 2, pp 14-16, 37-44, 45-50, 51-53, 66-69, 75-77, Exhibit 5, Interrogatory No 10, p 204
On a percentage basis, Ms Rodriguez was absent from her job nearly twenty percent (20%) of the time Specifically, 2.5 work years include approximately 5200 hours of work (40 hours/week x 52 weeks = 2080 hours; 2080 hours x 2.5 years = 5200 hours) Of those 5200 work hours, Ms Rodriguez missed approximately 125 days of work or 1000 hours (125 days x 8 hours per day = 1000 hours missed) Dividing the number of hours missed by the total number of work hours available in a two and half year period yields an absence rate of almost twenty percent (1000/5200 = 1923 or an absenteeism percentage of 19 23%).
See Trustee Exhibit 2, pp 14-16, 37-44, 45-50, 51-53, 66-69, 75-77
4 Immediately following her return from a seven week leave of absence, however, from February 23, 2001 through April 30, 2001, Ms Rodriguez missed several additional days of work due to alleged morning sickness or to attend routine obstetrical appointments without requesting a pregnancy disability leave of absence or providing any sort of certification from her health care provider indicating that such absences were necessary. On May 1, 2001, Ms Rodriguez was advised by her manager following her seventh unexcused absence in two and a half months that she was in violation of INSpire's attendance policy which allowed no more than three (3) absences in any ninety (90) day period, with the exception of medical leaves of absence or vacations approved by INSpire's human resources department. She was further advised that, if she missed any additional days, she would be given a written warning followed by termination
See Trustee Exhibit 2, pp. 14-16, 68-69
See Trustee Exhibit 2, Interrogatory No 10, p 204 There is nothing in Ms Rodriguez's personnel file (Trustee Exhibit 2, pp 5-79) to suggest that she provided any sort of documentation to INSpire's human resources department in connection with these absences
See Trustee Exhibit, 1, p, 2; see also, Exhibit 7, pp 242-243
5 Despite this verbal warning from her manager, two days later, Ms Rodriguez again missed work from Thursday, May 3, 2001 through Thursday, May 10, 2001 Although Ms. Rodriguez called in sick on May 3-4, 2001, she did not contact her supervisor, her manager, or the INSpire human resources department regarding her absences from May 7-10, 2001. As a result, INSpire terminated Ms. Rodriguez's employment on May 10, 2001 based on her violation of INSpire's attendance policy and due to "job abandonment"
See Trustee Exhibit 2, pp 66-67.
See Trustee Exhibit 2, pp. 66-67
6. Ms Rodriguez immediately filed a discrimination claim with the Equal Employment Opportunity Commission ("EEOC") on May 15, 2001 asserting that she had been wrongfully terminated from her employment with INSpire because of her sex (pregnancy) and her race/national origin (Hispanic/Mexican).
See Trustee Exhibit 7, pp 265-272
7 In support of her discrimination claim, presumably in an effort to demonstrate that her absences from February 23, 2001 through May 10, 2001 were excused, Ms Rodriguez provided the EEOC with a note prepared by her doctor dated May 14, 2001, i e, four days after her termination, purporting to excuse certain of her absences (the "May 14th Note")
See Trustee Exhibit 7, p 249 The May 14th Note was also provided by Ms Rodriguez to the Court in support of her responses to the Trustee's Objections to her proof of claim, as well as to the Trustee in discovery
8. In addition, Ms Rodriguez alleged that she had been absent from May 3, 2001 through May 10, 2001 due to medically necessary bedrest as reflected in a doctor's note dated May 4, 2001 (the "May 4th Note"). In an effort to demonstrate that the May 4th Note had been faxed to her supervisor at INSpire, Ms. Rodriguez provided to the Trustee a hand-written and hand-stamped receipt from a company called "Electronica Ballarta" purporting to reflect that a "2 paper sheet Fax" had been sent on May 7, 2001 to her supervisor's fax number. However, no fax confirmation page was provided Ms. Rodriguez. Based on the evidence provided at the hearing, the Court believes that the hand-written, hand-stamped "receipt" provided by Ms Rodriguez is not authentic and may have been manufactured by Ms. Rodriguez.
See Trustee Exhibit 7, p 252
See Trustee Exhibit 7, p 254 This hand-written receipt was also provided by Ms. Rodnguez to the Court in support of her responses to the Trustee's Objections to her proof of claim, as well as to the Trustee in discovery
9. Specifically, the correspondence and other documents produced by Ms Rodriguez to the Trustee reflect that she resides in Perris, California. The hand-written, hand-stamped receipt indicates that it was issued by the following business
Electronica Ballarta
1675 North Paris Blvd, Suite F2
Paris, CA 92570
(909) 943-5215
At the hearing, the Trustee established that there is no business named "Electronica Ballarta" in "Paris" California. There is, however, an actual business named "Electronica Vallarta" at the following address in Perris, California, where Ms Rodriguez resides.
Electronica Vallarta
1675 North Perris Blvd, Suite F2
Perns, CA 92571
(951) 943-5215
See Trustee Exhibit 8. The underlined portions refer to the inconsistencies between the name, address, and telephone number of the real business "Electronica Vallarta" and the purported business on Ms Rodriguez's handwritten fax receipt from "Electronica Ballarta"
Given the extreme unlikelihood that any business would use, stamp, or prepare a customer receipt which misspelled the business name, its street address, and the name of the city in which it was located and incorporated, as well as provided an incorrect zip code and area code, the Court affords no weight to the hand-written and hand-stamped fax receipt provided by Ms Rodriguez in support of her discrimination claim and finds that it does not establish that the May 4th Note was ever faxed to her supervisor at INSpire
10 Ms Rodriguez's contention that the May 4th Note was faxed to her supervisor at INSpire is further called into question by Ms. Rodriguez's own contradictory statements to the EEOC regarding the date of the alleged fax Specifically, in her letter to the EEOC dated June 20, 2001, Ms Rodriguez initially alleged that the May 4th Note was faxed to her supervisor on May 7, 2001 In the following paragraph, however, Ms Rodriguez states that "after going to the doctor" she went to a little store and faxed the May 4th Note to her supervisor Both the May 4th Note and the May 14th Note indicate that her doctor's appointment occurred on May 4, 2001 Thus, Ms. Rodriguez's statement that she allegedly faxed the May 4th Note to her supervisor on May 7, 2001 is inconsistent with her later statement that she faxed the May 4th Note to her supervisor "after going to the doctor" on May 4, 2001. Ms. Rodriguoz's inoonosistent statements regarding the date the May 4th Note was allegelly faxed to her supervisor amplify theCourt's doubts regarding the reliability and authernticity of the hand-written fax recept
See Trustee Exhibit 7, p 244
See Trustee Exhibit 7, p 245.
11 INSpire filed its chapter 11 bankruptcy petition on February 15, 2002 On February 3, 2003, Ms Rodriguez filed Proof of Claim No 466 in the INSpire bankruptcy asserting "wrongful determination" [sic] based on alleged pregnancy and race/national origin discrimination. By her proof of claim, Ms Rodriguez seeks recovery from the Trust in the amount of $65,000
See Trustee Exhibit 6, p 207
12 The Trustee filed two Objections to Ms. Rodriguez's proof of claim (Docket Nos 952 and 1055). Ms. Rodriguez provided the manufactured, hand-written, hand-stamped fax receipt discussed above and the May 14th Note to the Court in support of her responses to the Trustee's Objections (Docket Nos 975 and 1076). These two documents were also provided by Ms Rodriguez in support of her claim to the Trustee in discovery
See Trustee Exhibit 3, p 98 (Docket No 975), Trustee Exhibit 4, p 177 (Docket No 1076)
See also, Trustee Exhibit 3, p 93 (Docket No 975), Trustee Exhibit 4, p. 179 (Docket No 1076)
See Trustee Exhibit 7, pp 249, 254
13 In addition to the unreliable evidence provided by Ms Rodriguez discussed above, Ms Rodriguez also made a false statement regarding her attempt to collect disability benefits in either her sworn statement to the EEOC on May 15, 2001 or in her discovery responses to the Trustee Specifically, in an intake questionnaire provided to the EEOC just five days after her termination, Ms Rodriguez stated that she had not sought unemployment insurance as a result of her termination Instead, she advised the EEOC that "because of my medical condition (pregnant) I applied for state disability." In her responses to the Trustee's second set of interrogatories dated March 28, 2008, however, Ms. Rodriguez stated that she had never applied for any form of disability benefit or compensation These two statements, both sworn to by Ms Rodriguez, cannot be reconciled.and severely undermine her credibulty with the Court
See Trustee Exhibit 7, p. 270.
See Trustee Exhibit 7, Interrogatory No 2, p 220
Conclusions of Law
14 In her proof of claim, her charge of discrimination with the EEOC, and her responses to the Trustee's objections to her proof of claim, Ms Rodriguez asserts that she was fired not because of her excessive absenteeism in violation of INSpire's company policy but rather as a result of some discriminatory animus against her on the basis of her pregnancy and national origin. As discussed below, the Court hold that INSpire did not discriminate against Ms Rodriguez on the basis of pregnancy or race/national origin.
A. Ms. Rodriguez Has the Burden of Proving her Claim.
15. Under the Bankruptcy Code, a proof of claim is prima facie evidence of the validity of that claim unless a party in interest objects See Fed R. Bankr. P. 3001(f) ("A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim"); McGee v O'Connor (In re O'Connor), 153 F 3d 258, 260 (5th Cir. 1998); In re Jobs com, Inc., 283 B.R. 209, 213 (Bankr N D. Tex. 2002) (Houser, J.) If a party objects and presents evidence sufficient to overcome the claim's prima facie validity, then the party asserting the claim bears the burden of proof and must establish the validity of its claim by a preponderance of the evidence. In re O'Connor, 153 F 3d at 260, In re Jobs com, 283 B R. at 213
16 In this case, the Trustee filed two objections to Proof of Claim No 466 filed by Ms Rodriguez and presented sufficient evidence to overcome the claim's prima facie validity Consequently, Ms. Rodriguez bears the burden of proving the validity of her claim. The Court holds that Ms Rodriguez failed to prove the validity of her claim
B. The Federal Pregnancy Discrimination Act.
17. Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits an employer from "discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's . . . sex ". 42 U S C § 2000e-2(a)(1) The Pregnancy Discrimination Act of 1978 ("PDA"), 42 U.S C § 2000e(k), amended Title VII by explicitly including discrimination based on pregnancy and related medical conditions within the definition of sex discrimination Stout v. Baxter Healthcare Corp, 282 F 3d 856, 859 (5th Cir 2002)
18. A claim under the PDA is analyzed like Title VII discrimination claims in general. Urbano v. Continental Airlines, Inc, 138 F.3d 204, 206 (5th Cir 1998). First, the plaintiff must establish a prima facie case of discrimination by showing. (1) she was a member of a protected class, (2) she was qualified for the position she lost; (3) she suffered an adverse employment action, and (4) that others similarly situated outside of the protected class were more favorably treated. Id, citing, McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93 S Ct 1817, 36 L Ed. 2d 668 (1973) Once established, the defendant bears the burden of producing evidence that its employment decision was based on a legitimate, nondiscriminatory reason. The burden then shifts back to the plaintiff to prove that the defendant's proffered reasons were a pretext for discrimination. Once the defendant articulates a legitimate, nondiscriminatory reason for the employment action, however, the scheme of shifting burdens and presumptions "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question whether plaintiff has proved that the defendant intentionally discriminated against [her] because of [her sex]" Id, quoting, St Mary's Honor Center v Hicks, 509 U S. 502, 113 S Ct 2742, 125 L. Ed 2d 407 (1993) (internal citation and quotation omitted)
1. Ms. Rodriguez Failed to Establish a Prima Facie Case of Discrimination.
19 Ms Rodriguez failed to establish the second and fourth elements of a prima facie case of pregnancy discrimination. With regard to the second element, i e, that she was qualified for the job that she lost, due to her excessive absenteeism. Ms. Rodriguez cannot establish that she was qualified for her position, As several courts have recognized, "an essential element of any job is an ability to appear for work. . . ." Rogers v. Int'l Machine Terminals, Inc, 87 F 3d 755, 759 (5th Cir 1996), citing, e g, Tyndall v Nat'l Educ. Centers, Inc of Cal, 31 F.3d 209, 213 (4th Cir. 1994) (an employee "who does not come to work cannot perform any of his job functions, essential or otherwise."). The fact that Ms. Rodriguez's absences may have been caused by pregnancy does not dispense with the general requirement that employees must show up for work Indeed, it is well-established that a pregnant employee is only entitled to be treated as well as other non-pregnant employees, not better Mascorro v Am Funds Serv Co, Inc, 2006 U.S. Dist. LEXIS 94012, *7 (W D Tex. Nov 20, 2006) (granting summary judgment for employer on plaintiff's pregnancy discrimination claim where plaintiff was unable to perform her job based on her high number of absences in violation of employer's attendance policy). In this case, Ms. Rodriguez's missed thirteen (13) days of work between February 23, 2001 and May 10, 2001. Based on her chronic inability to appear for work, the Court finds that Ms Rodriguez was not qualified for her position
See Trustee Exhibit 2, pp 66-67 and Exhibit 5, p 204. This figure does not include the seven week leave of absence she took between December 27, 2000 and February 15, 2001 or the several other leaves of absence referenced above
20. Ms. Rodriguez also failed to establish that non-pregnant employees were treated more favorably Indeed, Ms Rodriguez presented no evidence that INSpire failed to enforce its attendance policy with regard to non-pregnant employees Because Ms Rodriguez failed to show that others outside of her protected class were treated more favorably, she did not establish the fourth element of a prima facie case
2. Legitimate Non-Discriminatory Reason for the Termination: Ms. Rodriguez Failed to Comply with INSpire's Attendance Policy.
21. Even if Ms. Rodriguez had established a prima facie case of discrimination, INSpire had a legitimate, nondiscriminatory reason for her termination. Specifically, the Court finds that Ms Rodriguez was terminated for excessive absenteeism and based on her failure to comply with INSpire's attendance policy Ms Rodriguez presented no evidence to suggest that INSpire's proffered reasons for her termination were a mere pretext for unlawful discrimination.
See Trustee Exhibit 2, pp 66-67
3. Ms. Rodriguez Failed to Satisfy Her Ultimate Burden of Proving that Non-Pregnant Employees Were Treated Differently under Nearly Identical Circumstances.
22 Because INSpire has articulated a legitimate, nondiscriminatory reason for her terminaton, Ms Rodriguez has the burden of proving that her termination was not due to her excessive absenteeism, but rather that it was because of unlawful pregnancy discrimination.
23 Fifth Circuit jurisprudence provides that, under the PDA, an employer is obliged to ignore a woman's pregnancy and to treat the employee as well as it would have if she were not pregnant. Stout, 282 F 3d at 859 The PDA does not, however, impose an affirmative obligation on employers to grant preferential treatment to pregnant women. Id. at 208 (collecting cases). Thus, although the PDA prohibits discrimination because of pregnancy or childbirth, it does not prohibit employment decisions based on employee conduct that may be caused by or related to pregnancy. Smith v Alderman-Cave Feeds, L.P., 2002 U.S. Dist. LEXIS 8031, *11-12 (N D Tex 2002) Consequently, in order for Ms. Rodriguez to ultimately prove unlawful pregnancy discrimination, she must demonstrate that "the misconduct for which she was discharged was nearly identical to that engaged in by an employee not within her protected class whom the company retained" Id. at *12, citing, Wallace v Methodist Hosp. Sys., 271 F 3d 212, 221 (5th Cir 2001)
24 In this case, as set forth above, the Court finds that Ms Rodriguez was terminated based on her excessive absenteeism and failure to comply with INSpire's facially-neutral attendance policy. There is no evidence that Ms. Rodriguez was treated any differently than any other employee who failed to comply with INSpire's attendance policy
The [PDA] does not protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or to complications from pregnancy, unless the absences of nonpregnant employees are overlooked
See, e.g, Stout, 282 F 3d at 860 (affirming summary judgment for employer where pregnant employee was terminated because of her violation of her employer's attendance policy), quoting, Dormeyer v. Comenca Bank-Illinois, 223 F 3d 579, 583 (7th Cir 2000) (Posner, J) (affirming summary judgment for employer on pregnancy discrimination claim where employer terminated the plaintiff for excessive absenteeism due to morning sickness); Smith, 2002 U.S. Dist. LEXIS 8031 at *13 (granting summary judgment for employer on PDA claim where the employer terminated the plaintiff's employment based on her failure to timely provide requested medical certification explaining need for bed rest and plaintiff could not demonstrate that other employees were not required to promptly provide a doctor's note upon requesting emergency medical leave)
25 Because Ms. Rodriguez failed to prove that non-pregnant employees were treated more favorably or that INSpire's articulated reason for her termination was a mere pretext for unlawful discrimination, she failed to satisfy her burden of proving unlawful pregnancy discrimination under the PDA.
C. The California Fair Employment and Housing Act.
26. Like the federal PDA, California has its own state statute prohibiting discrimination on the basis pregnancy Specifically, the California Fair Employment and Housing Act (the "FEHA"), Section 12945 of the California Government Code, provides that it shall be an unlawful employment practice
(a) For an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission's regulations
(b)(1) For an employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider
Cal. Gov't Code § 12945 (2006) (emphasis added). With certain limited exceptions, none of which are applicable here, the regulations of the California Fair Employment and Housing Commission ("FEHC") further provide that "an employer is not required to pay an employee during a pregnancy disability leave." Cal. Code Regs, Title 2, § 7291.11(a) (2006)
27 In addition, with regard to Cal. Gov't Code § 12945(b)(1), the regulations of the California FEHC provide that'
As a condition of granting pregnancy disability leave or transfer, the employer may require medical certification, as defined in section 7291 2, subdivision (d), if the employer requires certification of other similarly situated employees. . . .
Section 7291 2(d) of the regulations of the California Fair Employment and Housing Commission provides that
(d) "Certification" means a written communication from the health care provider of the employee that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties
(1) The certification indicating disability necessitating a leave should contain
(A) The date on which the woman became disabled due to pregnancy,
(B) The probable duration of the period or periods of disability, and
(C) An explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons
Cal Code Regs., Title 2, § 7291.10(b) (2006) Thus, under the FEHA, employers may not discriminate on the basis of pregnancy and must provide a reasonable accommodation in the form of an unpaid leave to a pregnant employee for pregnancy-related conditions where the employee requests an accommodation and provides the appropriate medical certification from her health care provider
28. Although Title VII differs in some respects from the FEHA, the anti-discriminatory objectives and overriding public policy purposes of the two acts are identical Spaziano v. Lucky Stores, Inc., 69 Cal. App. 4th 106, 112 (1999). Consequently, though not controlling, federal cases interpreting Title VII are instructive when analyzing a FEHA claim Id at 112-13 (approvingly citing the Fifth Circuit's decision in Urbano, supra, for the proposition that employers are required to treat pregnant employees in the same manner as non-pregnant employees, but need not provide preferential treatment) As with Title VII, enforcement of a neutral employment policy which incidentally affects pregnant employees does not constitute pregnancy-related discrimination under the FEHA Id at 113 (affirming summary judgment for defendant employer that terminated a pregnant employee following her violation of the company's neutral leave policy) Thus, INSpire did not discriminate against Ms Rodriguez by terminating her employment based on her violation of its neutral attendance policy
138 F 3d 204 (5th Cir 1998)
29 The FEHA also requires employers to accommodate a pregnant employee's request for a reasonable accommodation where the employee provides the appropriate certification from her health care provider In this case, however, there is no evidence that Ms Rodriguez ever made a request for a reasonable accommodation with regard to her absences between February 23, 2001 and May 10, 2001 and provided the necessary certification to either her manager or the INSpire human resources department in support of the request. Consequently, Ms. Rodriguez failed to establish that INSpire did not accommodate her pregnancy under the FEHA.
D. Race and National Origin Discrimination under Title VII of the Civil Rights Act of 1964.
30 Claims for race and/or national origin discrimination under Title VII utilize the same McDonnell Douglas framework applicable to claims for discrimination on the basis of pregnancy. Thus, Ms. Rodriguez must demonstrate the following elements to establish a prima facie case of race/national origin discrimination. (1) that she belongs to a protected class, (2) that she was qualified for the position she lost, (3) that she suffered an adverse employment decision, and (4) that other similarly situated employees were more favorably treated. Torrez v. Milk Products, L.P, 402 F Supp 2d 773, 777-78 (W.D. Tex. 2005). Although Ms Rodriguez belongs to a protected race/national origin (Hispanic/Mexican) and suffered an adverse employment action, as discussed above, she failed to establish the second and fourth elements of a prima facie case of discrimination. First, due to her excessive absenteeism, Ms Rodriguez failed to establish that she was qualified for her position Second, Ms Rodriguez failed to demonstrate that others outside of her protected class were more favorably treated
The Trustee's arguments in Section II — A regarding Ms Rodriguez's failure to establish a prima facie case of discrimination under Title VII are incorporated herein by reference and, thus, discussed only briefly with respect to her race/national origin discrimination claim
31 Furthermore, because INSpire had a legitimate, non-discriminatory reason for her termination (i.e., her violation of INSpire's attendance policy and job abandonment), Ms. Rodriguez bears the ultimate burden of establishing that INSpire's articulated reasons are false and instead are a pretext for unlawful discrimination on the basis of her race and/or national origin Id at 777; see also, St. Mary's Honor Ctr., 509 U S. at 510-11; Texas Dep't of Community Affairs v Burdine, 450 U S 248, 252-55 (1981) Speculation and belief are insufficient to create a fact issue as to pretext Nor can pretext be established by mere conclusory statements of a Plaintiff who feels that he has been discriminated against. McKey v Occidental Chem. Co, 956 F Supp. 1313, 1319 (S.D Tex. 1997).
32. Here, as with Ms Rodriguez's pregnancy discrimination claim, other than her speculation and conclusory assertions that she was the victim of race/national origin discrimination, there is absolutely no evidence that INSpire's articulated reasons for terminating Ms. Rodriguez were a pretext for race/national origin discrimination Furthermore, there is no evidence that, with respect to violations of its attendance policy, INSpire treated employees outside of Ms. Rodriguez's protected class more favorably Accordingly, like her pregnancy discrimination claim, Ms Rodriguez failed to prove discrimination on the basis of her race and/or national origin
33 Based on the foregoing, the Court finds that Ms Rodriguez failed to prove her pregnancy discrimination claims under the PDA and the California FEHA and her race/national origin discrimination claim under Title VII and, therefore, her Proof of Claim No 466 should be disallowed in its entirety.
34. In addition, although Ms. Rodriguez asserts claims for mental anguish, there is no evidence in the record to support any award of such damages. Similarly, there is no evidence in the record to support an award of punitive damages against INSpire
The above Findings of Fact shall also constitute Conclusions of Law, as appropriate, and vice versa.