KHAN v. UNITED RECOVERY SYSTEMS, INC.

Full title: ZARINA KHAN, Plaintiff, v. UNITED RECOVERY SYSTEMS, INC., ET AL.…

Court: United States District Court, S.D. Texas, Houston Division

Date published: Feb 28, 2005

Civil No. H-03-2292 (S.D. Tex. Feb. 28, 2005)

Opinion

Civil No. H-03-2292.

February 28, 2005

MEMORANDUM AND RECOMMENDATION

NANCY JOHNSON, Magistrate Judge

Pending before the court¹ is Defendant ProSource Management Solutions II's Motion for Summary Judgment (Docket Entry No. 43) and Defendant James A. West, P.C.'s Motion for Summary Judgment (Docket Entry No. 46). The court has considered the motions, the responses and replies thereto, and the applicable law. Having done so, the court RECOMMENDS that ProSource Management Solutions II's Motion be GRANTED and that James A. West, P.C.'s Motion be GRANTED IN PART and DENIED IN PART.

1 This case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Fed.R.Civ.P. 72. Docket Entry No. 51.

I. Case Background

This is an employment discrimination suit brought by Plaintiff Zarina Khan ("Plaintiff"), a female Pakistani Muslim. Plaintiff, who formerly worked for James A. West, P.C. ("West P.C."), alleges she was harassed and discriminated against because of her sex, religion, and national origin, as well as fired in retaliation for lodging complaints with West P.C's two office managers.

West P.C. is a law firm that dedicates much of its practice to collecting delinquent accounts on behalf of its clients. In early September 2001, Jay Collier ("Collier"), West P.C.'s collections manager, and Margery Gomez ("Gomez"), the assistant office manager, interviewed and hired Plaintiff to work as a debt collector, and gave her the official title of "legal assistant." Plaintiff's job at West P.C. generally consisted of taking assignments from her supervisor, Collier, calling debtors of West P.C. clients, and attempting to persuade the debtors to cure their outstanding indebtedness.

On September 11, 2001, within two weeks of Plaintiff's first day of work, the United States was the target of multiple terrorist attacks. Plaintiff testified that, shortly thereafter, she began to be harassed at work because of her religion and national origin by a co-worker, Bobby Bennett ("Bennett"),² as well as Collier. According to Plaintiff, Bennett told her "all Muslims should be killed because they are f____ing terrorists," that he wished "all these Muslims were wiped off the face of the earth," and that when he entered a convenience store and saw a Middle Eastern store clerk, he "wanted to shoot the bastard." In addition, Bennett "informed" Plaintiff that she could have more than one husband because she was Muslim and stated that several of Plaintiff's male co-workers "were her husbands." Plaintiff averred that Bennett would make fun of Muslim male names and that he brought a binder to work displaying pictures of Arabic men that he defaced with a black marker. Plaintiff also testified that Bennett told her it made him very angry that "all these damn Pakistanians [sic] come from Pakistan and take our jobs and can't speak a word of English and . . . they want to have big businesses . . . and big cars." According to Plaintiff, Bennett also "suggested" that she remove from her neck a pendant displaying the word "Allah" because she "might just get shot if she kept wearing it." Plaintiff averred that, when Bennett made these types of hostile and vicious comments, he would stand extremely close to her, point his finger directly in her face, and raise his voice. Plaintiff testified that she attempted to smooth things over with Bennett, but that he responded by telling her "he was racist and proud of it and that it was his God-given right as an American."

2 After Bennett was hired by West P.C. in October 2001, he worked as a "legal assistant" and, thus, was Plaintiff's co-worker. On December 17, 2001, he received a promotion to the position of Assistant Office Manager, with supervisory capacity over Plaintiff.

Plaintiff also testified that Collier harassed her because of her Muslim religion and Pakistani national origin. She testified, for example, that there were numerous instances where Collier gave her newspaper articles regarding mosques in Afghanistan that taught terrorism and attached a note telling her to come to his office and explain such activity. Plaintiff also stated that Collier demanded that she tell him what she was being taught at the mosque she attended, implying that it too was teaching terrorism. She stated that Collier refused to let her leave work early on Friday afternoons to drive to the mosque and attend the 2:00 p.m. prayer service, and instead told her she could only take the lunch break to do so. Plaintiff stated that she explained to Collier that she would not be able to attend the entire service and also drive back to the West P.C. office within the one-hour lunch break, but that Collier refused to accommodate her. She further explained that, after Collier made clear his unwillingness to modify her schedule, she did not ask for additional accommodations because she was already being harassed and did not want to worsen the situation.

In addition to religious and ethnic harassment, Plaintiff testified that she was repeatedly sexually harassed by Monty Decker ("Decker"), another West P.C. employee. According to Plaintiff, Decker continually asked her out on dates and importuned her for sex. She stated that Decker would make comments about her dress while looking up and down her body with his eyes, told her that he liked dark, sexy women with long hair such as herself, and recommended that she wear skirts at least four inches above her knees. Plaintiff testified that Decker asked her if her husband objected to the type of clothes she wore and, when she asked why, responded that he "would make [her] take them off for lots of sex." She stated that when Decker asked her out, he told her, "I won't tell if you won't" and "I'll give you the time of your life." According to Plaintiff, she rebuked each one of Decker's advances, and explained to him that she was happily married. On other occasions during her employment, Plaintiff testified, Bennett told her "he could smell [her] period on [her]" and that he could "smell when [she had] had sex."

Plaintiff testified that she repeatedly complained to Collier about Bennett's harassment and to Gomez about Decker's harassment.³ As to Collier, Plaintiff avers that she reported Bennett after each and every instance of harassment and that Collier assured her he would speak with Bennett but that he never in fact remedied the situation. She testified that, on one occasion, Collier told her he had given Bennett material on sexual harassment and that it should cure her problem, but that Bennett's harassment nevertheless continued. She also testified that, on another occasion, Collier informed her that "Bennett is set in his ways" and "I can't change him." According to Plaintiff, Collier became increasingly agitated about her complaints, asking her "What do you want me to do . . . to fire the guy for being who he is?" and accusing her of having "something against" Bennett because she jumped at every chance to complain about him.

3 Collier denies Plaintiff's allegations in full, and avers that Plaintiff only complained to him about Bennett on two occasions during the entire year she worked for West P.C. See Affidavit of Jay Collier, Docket Entry No. 43, Exhibit C ("Collier Aff.") ¶ 3. Collier further testified that on these two occasions, he did in fact take remedial measures by speaking with Bennett about what type of workplace behavior was permissible.Id. ¶¶ 3, 7-8. Gomez takes a similar stance and denies that Plaintiff ever complained to her about Decker.

Plaintiff also testified that she complained to Gomez on many occasions about both Bennett and Decker, but that Gomez never took any affirmative action to remedy the harassment. Instead, Gomez would respond by telling her she "should stop complaining and focus on your job because all the complaining is making you look very bad." According to Plaintiff, Gomez knew Plaintiff had serious issues with Decker because when he was transferred into Plaintiff's side of the office, Gomez asked Plaintiff whether she was alright with the move and assured her that nothing would ever happen. Plaintiff stated that Gomez even went so far as to poke fun of the situation, exclaiming on one occasion, "Here comes Zarina's friend Monte!"

Plaintiff averred that, sometime in early August 2002, after again being verbally threatened by Bennett, she had an anxiety attack at her desk, in which she shook and struggled to breath, and that two male co-workers carried her to a conference room and left her there without medical attention. On August 12, 2002, she wrote a lengthy letter to Collier detailing the previous harassment she had sustained at the hands of Bennett, as well as a current dispute with Bennett concerning how she would be able to make up time spent at a doctor appointment. Collier told Plaintiff to give him some time to look at the letter and that he would get back with her as to what course of action he would pursue. Plaintiff states that, after a week passed with no response, she again lodged complaints with Collier and that he again told her that he would discuss the issue with Bennett.

When Plaintiff arrived at work on Friday, August 30, 2002, she found Collier, Gomez, and Bennett grouped together at the office front door. Collier asked Plaintiff to accompany him and Gomez to a conference room and, once inside, terminated her employment. When Plaintiff asked Collier to tell her why she had been fired, he was evasive. However, after Plaintiff persisted, Collier explained to her that she had started a rumor at work. At the conclusion of the meeting, Plaintiff was escorted out of the conference room and to her desk. She was told to quickly pack her personal belongings into a box that had already been placed on her chair. After doing so, she was escorted from the building, with Gomez observing.

On May 25, 2003, approximately nine months after being fired, Plaintiff filed a charge of discrimination against West P.C. with the United States Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR"). Plaintiff alleged that Bennett and Collier had harassed her based on her religion and national origin, that Bennett and Decker had sexually harassed her, and that Collier and Gomez refused to take measures to prevent or remedy the harassment. She alleged that Collier discriminated against her based on her Muslim religion by refusing to accommodate her need to leave work early on Fridays to attend prayer service at her mosque. With regard to this charge, she claimed that Collier initially permitted her to leave early but then later changed his position. Finally, Plaintiff contended that her termination from West P.C. constituted an act of retaliation based on her complaints of religion, national origin, and sex discrimination.

On June 27, 2003, Plaintiff initiated this suit against West P.C. and United Recovery Systems, Inc., a West P.C. client. In her original complaint, Plaintiff alleged claims for unlawful harassment, discrimination, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 ("Section 1981"), and the Texas Commission on Human Rights Act (the "TCHRA"), Tex. Lab. Code Ann. § 21.001 et seq. She also advanced a common law claim of intentional infliction of emotional distress ("IIED"). Plaintiff amended her complaint on September 23, 2003, adding ProSource as a party defendant, and twice more thereafter, adding both Bennett and Decker as defendants. Her third amended complaint serves as the live pleading in this suit.

United Recovery Systems, Inc., ProSource, and West P.C. filed motions for summary judgment on June 29, 2004, July 9, 2004, and July 23, 2004, respectively. The court granted United Recovery Systems, Inc.'s motion on August 10, 2004. On November 8, 2004, Decker was dismissed from the lawsuit, pursuant to the parties' stipulation. The summary judgment motions filed by West P.C. and ProSource are presently before the court.

II. Summary Judgment Standard

A grant of summary judgment is proper only when the evidence before the court fails to raise any genuine issues of material fact and the movant is entitled to judgment as a matter of law.Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). A dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5^th Cir. 2002).

The movant bears the initial burden of informing the court of the basis for a grant of summary judgment by identifying relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, and affidavits on file that demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5^th Cir. 1992); Fed.R.Civ.P. 56(c). Upon showing that there is an absence of evidence to support an essential element of the non-movant's case, the burden shifts to the non-movant to produce competent evidence that demonstrates genuine issues of material fact do exist which must be resolved by a trier of fact.Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e). However, to satisfy this burden, the non-movant must come forth with more than "some metaphysical doubt as to the material facts." Meinecke v. H R Block of Houston, 66 F.3d 77, 81 (5^th Cir. 1995). Hence, conclusory statements, unsubstantiated assertions, and speculation are insufficient to raise material fact issues for trial. TIG Ins. Co., 276 F.3d at 759. When deciding whether the evidence creates a fact issue, the court resolves all doubts and draws all reasonable inferences in favor of the nonmovant. Liberty Lobby, 477 U.S. at 255;Fierros v. Tex. Dep't of Health, 274 F.3d 187, 190 (5^th Cir. 2001).

III. Analytical Framework for Employment Discrimination Claims

Title VII and the TCHRA each make it unlawful for an employer to discriminate because of, inter alia, religion, national origin, or sex. 42 U.S.C. § 2000e-2(a)(1); Tex. Lab. Code Ann. §§ 21.051-21.053. Section 1981 prohibits race discrimination in the making or enforcing of contracts. 42 U.S.C. § 1981(a).

In an employment discrimination case, a plaintiff may prove a claim through direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5^th Cir. 2000). In the absence of direct evidence, courts analyze Title VII, Section 1981, and TCHRA discrimination claims under the three-stage burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). West v. Nabors Drilling USA, Inc., 330 F.3d 279, 384 (5^th Cir. 2003);Evans v. City of Houston, 246 F.3d 344, 349 (5^th Cir. 2001).

Under the McDonnell Douglas analysis, a plaintiff may trigger a presumption of discrimination by establishing all elements of a prima facie case. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); Price v. Fed. Express Corp., 283 F.3d 715, 720 (5^th Cir. 2002); Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5^th Cir. 2000). If the plaintiff succeeds in doing so, the burden then shifts to the defendant to proffer legitimate, non-discriminatory reasons for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981);Price, 238 F.3d at 720. If the defendant satisfies this burden, the presumption dissolves, and the plaintiff must then adduce evidence showing that the reasons given by the defendant were a pretext for the discriminatory employment action. Reeves, 530 U.S. at 142-43; Price, 238 F.3d at 720. If the plaintiff does so, the trier of fact is permitted to infer that the employer engaged in unlawful discrimination. Reeves, 530 U.S. at 146-48.

IV. Analysis

A. ProSource's Motion for Summary Judgment

Plaintiff asserts discrimination, harassment, and retaliation claims against ProSource under Title VII, Section 1981, and the TCHRA and an IIED claim under state law. ProSource argues that it is entitled to summary judgment on the Title VII and TCHRA claims because Plaintiff failed to exhaust her administrative remedies under these statutes and because it is not Plaintiff's "employer." ProSource also urges that the court grant summary judgment in its favor on the Section 1981 claims, arguing that Plaintiff has not offered any summary judgment evidence that ProSource discriminated, harassed, or retaliated against her on the basis of her race. ProSource further maintains that summary judgment is appropriate on Plaintiff's state law IIED claim for several reasons.

1. Title VII and TCHRA Claims

a. Failure to Name ProSource in the Charge

It is well-settled that a plaintiff who asserts claims under Title VII and the TCHRA must first exhaust administrative remedies before filing suit. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5^th Cir. 2002); Schroeder v. Tex. Iron Works, Inc., 813 S.W.3d 483, 485 (Tex. 1991). Exhaustion occurs when the plaintiff files a timely charge of discrimination with the proper agency and receives a statutory notice of the right to sue. Taylor, 296 F.3d at 379; Schroeder, 813 S.W.3d at 486. While the filing of a timely charge is a precondition to bringing a Title VII claim in federal court, Taylor, 296 F.3d at 379, it is "mandatory and jurisdictional" under the TCHRA. Schroeder, 813 S.W.3d at 486.

As a general rule, a party not named in the administrative charge may not be sued in federal court. Way v. Mueller Brass Co., 840 F.2d 303, 307 (5^th Cir. 1988); see also 42 U.S.C. § 2000e-5(f)(1) (providing that "a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved."). Nevertheless, a few exceptions to this general rule exist. If the unnamed party was provided with adequate notice of the charge and given an opportunity to participate in conciliation proceedings on its own behalf, it is unnecessary for the plaintiff to file an additional charge against the unnamed party. Olsen v. Marshall Isley Corp., 267 F.3d 597, 604 (7^th Cir. 2001). Further, a suit may proceed against a party that is not named in the charge if there is a clear "identity of interest" between the unnamed and named parties. Way, 840 F.2d at 307; Johnson v. Palma, 931 F.2d 203, 210 (2^nd Cir. 1991). This "identity of interest" exception serves the basic Title VII purposes of giving the defendant notice of the charge and allowing the defendant an adequate opportunity to resolve the complaint. Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1185 (10^th Cir. 1999).

ProSource's initial argument is that Plaintiff failed to name it in her EEOC/TCHRA charge of discrimination and that this failure bars her from bringing Title VII and TCHRA claims against it in this suit. It is undisputed that Plaintiff's administrative charge neither named ProSource as a respondent nor mentioned ProSource in any of its allegations of discrimination. Consequently, in order for her Title VII and TCHRA claims against ProSource to proceed in this action, Plaintiff must of necessity prove that one of the aforementioned exceptions to the general rule applies. Plaintiff does not contend that ProSource was directly made aware of her charge, investigated her claims, or was given the opportunity to conciliate. Instead, she maintains ProSource had an "identity of interest" with West P.C., the party named in the charge, because the two entities functioned as a single employer. Her contention that the "identity of interest" exception would be satisfied upon a determination of "single employer" status finds support in the case law. See, e.g., Knowlton, 189 F.3d at 1185 (holding that the identity of interest exception was met where jury determined that two defendants omitted from the charge and the party named in the charge functioned as a single employer); Sedlacek v. Hach, 752 F.2d 333, 336 (8^th Cir. 1985) (holding that where defendants were found to constitute a single employer, "notice to one was notice to the other"); Jarred v. Walters Indus. Elec., Inc., 153 F. Supp. 2d 1095, 1101-02 (W.D. Mo. 2001) (same). The court is persuaded by this line of reasoning. Therefore, to determine whether Plaintiff exhausted her administrative remedies against ProSource pursuant to the "identity of interest" exception, it is necessary to consider Plaintiff's argument that ProSource and West P.C. constituted a single employer.

b. Single Employer Status

Plaintiff seeks to hold West P.C. and ProSource liable under Title VII and the TCHRA for the alleged harassment, discrimination, and retaliation she sustained at West P.C. To do so, she bears an initial burden to prove that both entities can be characterized as her "employer."

When determining whether two superficially distinct entities may be held liable under Title VII as a single employer, the Fifth Circuit employs the four-factor test set out in Trevino v. Celanese Corp., 701 F.2d 397 (5^th Cir. 1983). In Trevino, the court held that "superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer." Id. at 404. The four factors considered when making this determination are: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. Id.; Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 763-64 (5^th Cir. 1997) (applying the factors).⁴ However, the Fifth Circuit has been clear that, in Title VII suits, the second of these factors is considered to have overriding importance, such that the inquiry essentially boils down to one critical question: "Which entity made the final decisions regarding employment matters relating to the person claiming discrimination?" Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 617 (5^th Cir. 1999); Trevino, 701 F.2d at 404.

4 The test was originally fashioned by the Supreme Court in the labor relations context. See Radio Union v. Broadcast Serv., 380 U.S. 255, 257 (1965).

ProSource acknowledges it was the "administrative employer" of Plaintiff and all other employees it leased to West P.C., based on the fact that it had responsibility for administering payroll and benefits for these employees. Nonetheless, ProSource contends it may not be held liable under Title VII in this suit because the evidence shows it was not a single, integrated enterprise with the true employer, West P.C., but, rather, a distinct corporate entity that simply provided administrative services to the employer. Further tailoring its argument to the secondTrevino factor, ProSource maintains that there is no evidence in the record that it participated in, knew about, or should have known about the alleged harassment, discrimination, and retaliation. Plaintiff responds by arguing that ProSource was her employer because it required her to sign an employment information form and employee agreement, gave her an employee handbook, exercised substantial control over her work, and utilized its own disciplinary rules in terminating her employment.

The Fifth Circuit instructs that, when applying the Trevino test, the focus is "almost exclusively" on determining which entity made the final decision with regard to employment matters alleged by the plaintiff to be discriminatory. See Skidmore, 188 F.3d at 617; Trevino, 701 F.2d at 404. In this suit, Plaintiff complains of several discriminatory "employment matters." She first alleges that she was subjected to constant religious, ethnic, and sexual harassment and that Collier and Gomez failed to take any remedial measures. She also alleges that Collier discriminated against her on the basis of her Muslim religion by refusing to allow her to leave work early on Friday afternoons to attend prayer services at a mosque. Finally, she alleges that she was retaliated against for complaining about the aforementioned harassment and discrimination.

After reviewing the record, the court finds that Plaintiff has failed to present any evidence showing that ProSource took part in or was aware of the harassment and discrimination that allegedly took place at West P.C. First and foremost, Plaintiff fully admits that nobody working at ProSource ever harassed her or treated her differently because of her religion, national origin, or gender.⁵ Indeed, Plaintiff made it abundantly clear in her complaint and during her deposition that all of the harassment and discrimination was perpetuated by employees working for West P.C. and took place on West P.C.'s premises. Second, there is a dearth of evidence in the record showing that ProSource was aware of or should have been aware of the alleged harassment and discrimination. Plaintiff admits she never informed anyone at ProSource that she was being harassed or discriminated against.⁶ In fact, after an initial orientation session, in which ProSource came to West P.C.'s office and explained what services it would be providing to its employees, Plaintiff's sole contact with ProSource was the one time she called its Human Resource Administrator, Charlotte Farkas ("Farkas"), and inquired about her health insurance coverage.⁷ Farkas testified in her sworn affidavit that at no point during this conversation did Plaintiff mention anything about harassment or discrimination.⁸ Plaintiff has not rebutted any of the evidence proffered on this point by ProSource. On the basis of the foregoing, the court finds that no trier of fact could conclude that ProSource "made the final decisions" to harass or discriminate against Plaintiff.

5 Oral Deposition of Zarina A. Khan, Docket Entry No. 43, Exhibit 3 ("Khan Depo.") at 192:23-193:7 (testifying that ProSource never harassed her in any way); 197:21-198:19 (testifying that ProSource never treated her differently or badly based on her national origin, religion, or gender).

6 Id. at 188:11-20.

7 Declaration of Charlotte Farkas, Docket Entry No. 43, Exhibit 1 ("Farkas Dec.") ¶¶ 8-9; Khan Depo. at 156:5-16.

8 Farkas Dec. ¶ 8.

The summary judgment evidence is equally clear that ProSource was not responsible for terminating Plaintiff. As detailed above, Plaintiff admits that she was terminated by Collier and Gomez, her two managers at West P.C. Hence, to show that ProSource was responsible for her termination, Plaintiff would need to submit evidence that ProSource dictated this result, something she has failed to do. In fact, the summary judgment evidence reveals just the opposite. For example, Kim Traylor ("Traylor"), a ProSource executive officer, testified that ProSource was not aware that Plaintiff had been fired until it received a facsimile from West P.C. on August 30, 2002, stating that Plaintiff's employment had been terminated the day before.⁹ This facsimile was signed by Collier and Gomez and stated that Plaintiff had been terminated for violating company policy and for spreading false and malicious rumors about West P.C. and some of Plaintiff's co-workers.¹⁰ Traylor's testimony that West P.C. failed to notify ProSource before terminating Plaintiff was corroborated by Farkas, who testified that she also became aware of Plaintiff's discharge only after the fact, specifically, when the Texas Workforce Commission ("TWC") sent her a written notification that Plaintiff was seeking unemployment benefits.¹¹ She further testified that, upon receiving this notice, she contacted Gomez, who confirmed that West P.C. had indeed discharged Plaintiff.¹² In addition to the testimony of both Traylor and Farkas, James West ("West"), President of West P.C., testified in unequivocal terms that he alone made the ultimate decision to terminate Plaintiff, and that ProSource had absolutely no input in this decision.¹³

9 Declaration of Kim Traylor, Docket Entry No. 43, Exhibit 7 ¶ 4.

10 Facsimile from West P.C. to ProSource, dated August 30, 2002, Docket Entry No. 43, Exhibit 8.

11 Farkas Dec. ¶ 11.

12 Id. ¶¶ 12-13.

13 Oral Deposition of James West, Docket Entry No. 56, Exhibit 2 ("West Depo.") at 46:21-47:17 (confirming that he made the ultimate decision to fire Plaintiff); 60:25-61:12 (testifying that he did not consult ProSource before terminating Plaintiff).

In an attempt to overcome this evidence and demonstrate that ProSource was responsible for her termination, Plaintiff contends that the stated reasons for her discharge were taken directly from the "Rules of Conduct" established by ProSource (the "Rules"). The Rules grouped employee offenses into three main categories: major offenses, serious offenses, and other offenses.¹⁴ A major offense warranted immediate employee termination, and two serious offenses committed within one year constituted a major offense.¹⁵ In support of her argument that she was discharged for violating the Rules, Plaintiff points to a memorandum written by Farkas to the TWC, which provided that Plaintiff "was discharged for blatant violation of the Rules of Conduct."¹⁶ The memorandum explained that Plaintiff had committed three serious offenses under its Rules: (1) "using threatening or abusive language to an employee, visitor, customer or supervisor" (Rule 3); "ethnic or sexual harassment" (Rule 4); and "disorderly, immoral, or indecent conduct" (Rule 5).¹⁷ Implied in Plaintiff's argument is that she was fired for committing more than one serious offense within one year.

14 ProSource Management Solutions, Rules of Conduct, Docket Entry No. 55, Exhibit 9 ("Rules of Conduct").

15 Id.

16 See Docket Entry No. 43, Exhibit 10. Farkas testified that one of her job duties at ProSource involved handling unemployment compensation applications submitted by "employees of our client companies" because ProSource was considered the employer for purposes of the Texas unemployment compensation program. Farkas Aff. ¶ 10.

17 Docket Entry No. 43, Exhibit 10. The memorandum explained that Plaintiff had violated Rule 3 by "badmouthing" certain employees of West P.C. According to Michelle Taylor, Plaintiff's co-worker, Plaintiff spent forty-five minutes during lunch one day criticizing her supervisors and other co-workers in an attempt to impress upon Taylor that she would never be able to advance within the company. The memorandum next explained that Plaintiff violated Rule 4 by sexually harassing Decker. Decker alleged that Plaintiff had approached him on August 21, 2002, and "expressed to him her discontent in her marital relationship and that she would entertain having a sexual relationship with him." According to Decker, he declined her proposition, and then found out approximately one week later that Plaintiff was "making 'disparaging' remarks about him regarding his morality" and telling West P.C. employees that "he was pursuing her." Finally, the memorandum stated that Plaintiff's actions constituted "disorderly, immoral, and indecent conduct," which itself was a violation of Rule 5. Id.

As additional evidence that ProSource was responsible for her termination, Plaintiff directs the court to certain provisions of the Staff Leasing Agreement (the "Agreement") between ProSource and West P.C. For example, one provision of the Agreement stated that ProSource was responsible "for coordinating with [West P.C.] the hiring, firing, disciplining, and reassigning of the Leased Employees."¹⁸ In another provision, West P.C. expressly covenanted, represented, and warranted to ProSource that it would comply with ProSource's employment policies and that it would provide ProSource with timely notice of "discipline problems and other employee concerns."¹⁹

18 Staff Leasing Agreement, Docket Entry No. 55, Exhibit 18 ("Staff Leasing Agreement") ¶ 4.3(c) (emphasis added).

19 Id. ¶ 9.1.

Plaintiff's arguments on this point are without merit. First, she has not adduced any evidence rebutting the sworn testimony of Taylor and Farkas that ProSource was unaware of her discharge until after it had occurred, or West's sworn statement that he made the decision to fire her. The mere fact that Farkas' memorandum stated that Plaintiff's actions violated ProSource's Rules is insufficient to raise a genuine issue as to whether ProSource itself was the final decision-maker. For one thing, Farkas drafted the memorandum only as a response to the TWC's notification regarding unemployment compensation. Further, and more importantly, the memorandum simply reiterated the reasons for the termination provided to Farkas by Gomez, namely, spreading rumors and harassing a co-worker. Also, notably, West testified that he did not take into consideration ProSource's Rules when he fired Plaintiff.²⁰

20 West Depo. at 14:5-15.

As to Plaintiff's second point, although ProSource did have a contractual duty to "coordinate" Plaintiff's termination with West P.C., the record is clear that West P.C. never afforded it that opportunity, as it discharged Plaintiff before notifying ProSource. The critical issue is not whether West P.C. was in dereliction of its contractual duty to coordinate the firing with ProSource, or whether ProSource had the authority to fire Plaintiff but, rather, whether ProSource actually did so. See Skidmore, 188 F.3d at 617 (holding that the main issue to be decided in the single employer analysis is which entity "made the final decisions" regarding allegedly discriminatory employment matters). In short, Plaintiff has offered nothing more than her mere speculation that ProSource instigated or was directly responsible for terminating her employment. A plaintiff's speculation is not competent summary judgment evidence, however, and is therefore not enough to raise a fact issue for the jury.TIG Ins. Co., 276 F.3d at 759.

Without any competent summary judgment evidence that ProSource made the decision to harass, discriminate, or fire her, Plaintiff's proof on the second Trevino factor is deficient.²¹ For the sake of completeness, the court also notes that there is no other evidence in the record suggesting that ProSource was a single "employer" with West P.C. Specifically, Plaintiff has presented no evidence showing that ProSource and West P.C. shared operations, management, or ownership, i.e., the other three Trevino factors. Indeed, the undisputed evidence would not permit her to do so: ProSource did not oversee the day-to-day operations of West P.C., did not place any representatives in the West P.C. workplace, did not supervise the West P.C. employees or the manner or means of their work, and did not share ownership or management with West P.C.²² Instead, ProSource simply served in an administrative role as a provider of paychecks and health benefits.²³ The mere fact that an employment agency issues paychecks to the plaintiff is, alone, insufficient to characterize the agency as the "employer" under Title VII. See Watson v. Adecco Employment Servs., Inc., 252 F. Supp. 2d 1347, 1356 (M.D. Fla. 2003); Williams v. Caruso, 966 F. Supp. 287, 296 (D. Del. 1997); Astrowsky v. First Portland Mortgage Corp., 887 F. Supp. 332, 333 (D. Me. 1995).

21 Plaintiff also contends ProSource's participation at her unemployment benefits hearing was a retaliatory measure and that it can be held liable under Title VII for such. In direct contrast to her other claims, it is clear that ProSource did in fact participate in this particular "employment matter." Thus, on its face, ProSource's action satisfies the requirement of the second Trevino factor that the entity be responsible for the challenged action. However, as the court explains below, ProSource's participation did not constitute a violation of Title VII and, therefore, ProSource may not be held liable under Title VII on this basis.

22 West Depo. at 61:13-62:20; Khan Depo. at 189:12-16.

23 West Depo. at 64:13-17.

In sum, there are no facts in the record from which a trier of fact could reasonably conclude that ProSource had such a meaningful degree of control over employees working at West P.C. that it could be considered their "employer" for the purposes of imposing Title VII liability. Thus, Plaintiff has failed to show that ProSource was a single employer with West P.C., which, in turn, precludes her from establishing that ProSource shared an "identity of interest" with West P.C. As a result, the "identity of interest" exception does not apply, Plaintiff has failed to exhaust her administrative remedies on her Title VII and TCHRA claims against ProSource, and she may not pursue those claims in this suit. The court recommends that ProSource's motion be granted as to these claims.²⁴

24 A second, related basis exists for granting summary judgment in favor of ProSource. Namely, because ProSource cannot be characterized as Plaintiff's "employer" under Title VII or the TCHRA, the court does not have jurisdiction to consider Plaintiff's Title VII or TCHRA claims against ProSource. See Greenlees v. Eidenmuller Enters., Inc., 32 F.3d 197, 198-99 (5^th Cir. 1994).

2. Section 1981 Claims

In contrast to Title VII and the TCHRA, Section 1981 does not require that a plaintiff exhaust her remedies at the administrative level before seeking redress in federal court.Walker v. Thompson, 214 F.3d 615, 625 (5^th Cir. 2000) (citing Scarlett v. Seaboard Coast Line R.R. Co., 676 F.2d 1043, 1050 (5^th Cir. Unit B. 1982)). Thus, the Section 1981 claims against ProSource may not be disposed of on the same basis as the Title VII and TCHRA claims.

Section 1981 prohibits interference with a person's right to "make and enforce contracts" because of race. 42 U.S.C. § 1981(a). As amended by the Civil Rights Act of 1991, Section 1981 defines the phrase "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). This definition is sufficiently broad to permit a plaintiff to sue for racial harassment and discrimination, as well as termination on the basis of race. Pegram v. Honeywell, Inc., 361 F.2d 272, 282-83 (5^th Cir. 2004) (Section 1981 termination claim); Felton v. Polles, 315 F.3d 470, 483 (5^th Cir. 2002) (Section 1981 harassment and discrimination claims).

As the court determined above, Plaintiff has not presented any evidence that ProSource harassed her or discriminated against her. Therefore, Plaintiff does not have an actionable Section 1981 claim for racial harassment or discrimination, and the only way she could potentially hold ProSource liable under this statute is to show that it took retaliatory action against her because of her race. Like Title VII, Section 1981 prohibits an employer from taking retaliatory measures against an employee who exercises her rights under the respective act. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 338-39 (5^th Cir. 2003). To establish a prima facie case of retaliation, a plaintiff must present evidence that: (1) she engaged in activity protected by the statute; (2) the employer took an employment action that adversely affected her; and (3) a casual connection existed between the protected activity and the adverse employment action. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471 (5^th Cir. 2002) (setting forth the elements of a retaliation claim under Title VII); see id. at 468 (holding that retaliation claims brought under Title VII and Section 1981 are analyzed in the same manner).

ProSource argues that Plaintiff cannot make out a prima facie case of retaliation. The court agrees. Plaintiff testified during her deposition that her retaliation claim was based on ProSource's handling of her unemployment compensation claim.²⁵ In particular, she contended ProSource retaliated against her by blindly accepting West P.C.'s reasons for her discharge without conducting its own investigation into the matter.²⁶ However, perhaps recognizing that this argument would not pass muster at the summary judgment stage, Plaintiff changed position in her response brief and argued that ProSource caused her termination and that this particular action was retaliatory in nature. Regardless of which action she alleges to be retaliatory, however, Plaintiff has failed to present even a scintilla of evidence that ProSource took an "adverse employment action," as is necessary to establish a prima facie case.

25 Khan Depo. at 199:1-5.

26 Id. at 199:7-14; 201:14-22.

First, as discussed above, the unrebutted evidence shows that ProSource did not fire Plaintiff, was not directly or indirectly responsible for such action, and had no input in the decision to do so. Thus, although job termination clearly constitutes an "adverse employment action" in the retaliation context, Dollis v. Rubin, 77 F.3d 777, 782 (5^th Cir 1995), it is not possible to hold ProSource liable on this basis.

Second, the court finds that, as a matter of law, ProSource may not be held liable merely for appearing at the unemployment compensation hearing and accepting West P.C.'s explanation for Plaintiff's discharge without conducting its own investigation. In the Fifth Circuit, a plaintiff can satisfy the "adverse employment action" element only by showing that the employer's action was an "ultimate employment decision," along the lines of hiring, granting leave, discharging, promoting, or compensating.Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531-32 n. 2 (5^th Cir. 2003) (providing examples of employer actions deemed to be ultimate employment decisions); Dollis, 77 F.3d at 782. Stated differently, the decision must be "[a] tangible employment action constitut[ing] a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Plaintiff has not cited to (and the court's independent research has not unearthed) any authority whatsoever for the proposition that a defendant makes an ultimate employment decision when it takes a position adverse to that of the plaintiff at the plaintiff's unemployment compensation hearing. Simply put, this "action" is not on par with the types of actions the Supreme Court and the Fifth Circuit have specified as sufficient to support a retaliation claim. Importantly, the Fifth Circuit has pointed out that an employer's action that lacks consequence is not an "adverse employment decision." Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5^th Cir. 1997). In this instance, ProSource's adverse stance at the hearing and failure to conduct an independent investigation clearly lacked consequence, as Plaintiff admits that she ultimately received unemployment benefits from the TWC.²⁷

27 Khan Depo. at 200:6-11.

Because Plaintiff is unable to demonstrate that she suffered an adverse employment action at the hands of ProSource, she cannot establish a prima facie case of retaliation under Section 1981. Accordingly, it is recommended that ProSource's motion also be granted on Plaintiff's Section 1981 claims.

3. Intentional Infliction of Emotional Distress

ProSource also contends it is entitled to summary judgment on Plaintiff's state law IIED claim. ProSource first argues that it has absolute immunity from suit on this claim. It also argues that Plaintiff's allegations, even if true, would only amount to a claim for negligent infliction of emotional distress, a claim that is not actionable under Texas law. ProSource also contends that, assuming the immunity defense is unavailable and the claim is characterized as an IIED claim, summary judgment is still appropriate because Plaintiff has not adduced any summary judgment evidence on the essential elements of her claim.

ProSource first insists that it is absolutely immune from suit on this claim. It argues that the IIED claim is based wholly upon its actions at the TWC unemployment compensation hearing, that such a hearing is considered to be a quasi-judicial proceeding, and that, under Texas law, communications made during a quasi-judicial proceeding are absolutely privileged. It also points out that Texas courts have construed this absolute privilege has an absolute immunity to suit rather than a mere defense to liability.

Texas courts have long recognized that statements made during a quasi-judicial proceeding are absolutely privileged. Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912-13 (Tex. 1942);Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 290 (Tex.App. — Corpus Christi 2000, pet. denied); Stephan v. Baylor Med. Ctr. at Garland, 20 S.W.3d 880, 890 (Tex.App.-Dallas 2000, pet. denied); Lane v. Port Terminal R.R. Ass'n, 821 S.W.2d 623, 625 (Tex.App.-Houston [14^th Dist.] 1993, writ denied). The purpose of this privilege is to protect the integrity of the deliberative process and ensure that the quasi-judicial decision-making body is presented with all information necessary to make its decision. Attaya v. Shoukfeh, 962 S.W.2d 237, 239 (Tex.App.-Amarillo 1998, pet. denied).

Quasi-judicial bodies are governmental executive officers, boards, or commissions that have authority to hear and adjudicate matters coming before them, or to redress grievances within their jurisdiction. Reagan, 166 S.W.2d at 912; 5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254, 257 (Tex.App.-Fort Worth 2004, pet. filed); Lane, 821 S.W.2d at 625. Texas courts have made clear that the TWC is a quasi-judicial body. Wal-Mart Stores, 31 S.W.3d at 290 (determining that the Texas Employment Commission, now known as the TWC,²⁸ was quasi-judicial in nature); Tex. Employment Comm'n v. Remington York, Inc., 948 S.W.2d 352, 358 (Tex.App.-Dallas 1997, no writ) (holding that the Texas Employment Commission was a quasi-judicial body);Hardwick v. Houston Lighting and Power Co., 881 S.W.2d 195, 198 (Tex.App.-Corpus Christi 1994, writ dism'd w.o.j.) (same).

28 The Texas Employment Commission was renamed the TWC in 1995. See Act of May 26, 1995, 74^th Leg., R.S., ch. 655, § 11.75, 1995 Tex. Gen. Laws 3543, 3621-22; see also City of Houston v. Tippy, 991 S.W.2d 330, 332 n. 1 (Tex.App.-Houston [1^st Dist.] 1999, no pet.).

Although a majority of older Texas cases restricted use of the privilege to claims of libel or slander, recent decisions have applied the privilege to all claims based on communications made during quasi-judicial proceedings, regardless of the label placed on the claim. Laub v. Pesikoff, 979 S.W.2d 686, 690-92 (Tex.App.-Houston [1^st Dist.] 1998, pet. denied). These courts reason that extension of the absolute privilege beyond defamation actions is necessary in order to avoid circumventing the policy behind the privilege. Id. Thus, the quasi-judicial communications privilege has been found to preclude claims for,inter alia, intentional torts such as IIED. See Bird v. W.C.W., 868 S.W.2d 767, 772 (Tex. 1994) (extending the privilege beyond defamation actions where the claims involve damages stemming from statements made during a judicial proceeding);Laub, 979 S.W.2d at 690-92 (holding that the privilege barred all of the plaintiff's claims, including a cause of action for IIED); Attaya, 962 S.W.2d at 238-40 (extending the privilege to "all perceived torts or other causes of action" arising from the defendant's action or communication with the Texas Board of Medical Examiners, a quasi-judicial body); Morales v. Murphey, 908 S.W.2d 504, 507 (Tex.App.-San Antonio 1995, writ denied) (applying privilege to bar IIED claim); Rose v. First Am. Title Ins. Co. of Tex., 907 S.W.2d 639, 643 (Tex.App. — Corpus Christi 1995, no writ) (holding that the "[a]bsolute privilege also applies when the theory of recovery is intentional infliction of emotional distress."); K.B. v. N.B., 811 S.W.2d 634, 640 (Tex.App.-San Antonio 1991, writ denied) (same).

Although termed a "privilege," this defense to suit based upon communications made during a quasi-judicial proceeding is properly characterized as complete immunity from suit. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987);accord Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993-95 (5^th Cir. 1999) (holding that Texas law grants absolute immunity from suit for statements made to a quasi-judicial body).

Plaintiff's IIED claim against ProSource is based on ProSource making unfavorable statements about her to the TWC hearing officer without first determining whether these statements were accurate or not. According to Plaintiff, ProSource told the hearing officer she "was fired due to this, this, this, this, this, and this . . . when they didn't even know the facts."²⁹ Because these comments were made in the course of a quasi-judicial proceeding, they were absolutely privileged. Thus, ProSource is immune from suit based on these comments and Plaintiff's IIED claim cannot stand.

29 Khan Depo. at 199:4-5, 7-8, 11; see also id. at 205:20-25.

Even assuming, arguendo, that ProSource's statements were not privileged, the court finds that Plaintiff has not raised a genuine issue of material fact on the substance of her claim. Under Texas law, a plaintiff must satisfy four elements to state a claim for IIED: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress was severe.GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999). Plaintiff has not offered any summary judgment evidence whatsoever that ProSource intentionally tried to harm her, that ProSource acted in an extreme and outrageous manner, or that ProSource's actions caused her to suffer emotional distress that was severe in nature. Indeed, her response brief did not even mention ProSource on this issue, instead focusing entirely on the actions of Bennett and Collier. Simply put, the actions Plaintiff complains of here were within the realm of an ordinary employment dispute between herself and ProSource. The Texas Supreme Court has made clear, however, that ordinary employment disputes cannot form the basis of an IIED claim. Id. at 612-13. Accordingly, the court recommends that ProSource's motion be granted as to the IIED claim.

B. West P.C.'s Motion for Summary Judgment

1. Timeliness of Title VII Claims

West P.C. first argues that some or all of the conduct upon which Plaintiff bases her Title VII claims occurred outside the applicable limitations period. A Title VII plaintiff must file a charge of discrimination with the EEOC no more than 180 days after the allegedly discriminatory employment practice. 42 U.S.C. § 2000e-5(e)(1). However, in states such as Texas that have their own anti-discrimination laws and corresponding agency, commonly known as "deferral states," the filing period for Title VII claims is extended to 300 days if the claimant also files a charge of discrimination claim with the state agency. 42 U.S.C. § 2000e-5(e)(1); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5^th Cir. 2001) (noting that Texas is a deferral state).

As Plaintiff filed claims with both the TCHR and EEOC, the 300-day limitations period governs her Title VII claims. Plaintiff filed her charge of discrimination on March 25, 2003. Therefore, the limitations period reached back to May 29, 2002. Any Title VII claims arising before that date are effectively time-barred. Under this time frame, Plaintiff's retaliatory termination claim is not precluded, since she was fired on August 29, 2002. The record is less clear, however, as to her allegations of discrimination and harassment. Plaintiff testified that the harassment began shortly after she was hired in September 2001, and continued until she was discharged on August 29, 2002. With regard to her discrimination claim — that Collier discriminated against her because of her Muslim religion by refusing to accommodate her religious practices — she testified she "asked for this accommodation on numerous occasions including during my last few months of employment."

Plaintiff contends that, even if a part of the conduct that formed the basis of her hostile work environment and discrimination claims fell outside the statutory 300-day limitations period, such conduct is nonetheless actionable under the "continuing violation" doctrine. This doctrine "relieves a plaintiff of establishing that all of the complained — of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Celestine, 266 F.3d at 351. A plaintiff bears the burden of showing the doctrine applies. Id. at 352. To meet this burden, the plaintiff must present evidence that the discriminatory conduct occurred both inside and outside the limitations period, that the incidents were related, and that the conduct was pursuant to an organized scheme. Celestine, 266 F.3d at 352. The purpose of the theory is to "'accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all of the discriminatory acts committed as part of this pattern or policy can be considered timely.'" Id. at 351-52 (quoting Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 344 (7^th Cir. 1999)).

The court finds that the continuing violation doctrine should apply to Plaintiff's hostile work environment claim. Plaintiff has repeatedly testified that she was harassed both prior to and after the relevant limitation date, May 29, 2002, that the harassment was recurring, and that it occurred virtually the entire time she was at West P.C. Indeed, this presents the classic situation in which the continuing violation doctrine fairly applies. In Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that the continuing violation doctrine could viably apply to hostile work environment claims because these claims, by their very nature, are based on repeated conduct. Id. at 115. By contrast, discrete acts such as a failure to hire or promote, dismissal, or demotion, do not warrant application of the doctrine because they are only one-time events. Id. at 110-15; Celestine, 266 F.3d at 352; Huckabay v. Moore, 142 F.3d 233, 240 (5^th Cir. 1998).

The next question is whether the acts underlying Plaintiff's discrimination claim fall outside the limitation period and, if so, whether the continuing violation theory allows Plaintiff to still bring a claim based upon those acts. Plaintiff alleges Collier discriminated against her by refusing to permit her to leave work early so that she could attend full Friday prayer services at her mosque. According to Plaintiff, Collier refused her requests "on numerous occasions including during my last few months of employment." Because Plaintiff was fired on August 29, 2002, the "last few months" of her employment would have stretched back to somewhere around May 29, 2002, within the limitations period. Further, her statement that Collier refused her requests on several occasions "including" the last few months gives a strong indication that these discrete acts began before May 29, 2002, that is, outside the limitation period. Collier's refusals to permit Plaintiff to leave work early were discrete acts. Cf. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-15 (2002) (stating that employment decisions such as termination, failure to promote, or denial of transfer were "discrete acts"). Therefore, Plaintiff may only sue for those acts that occurred after May 29, 2002, and any claims based upon instances that Collier refused Plaintiff's request occurring before May 29, 2002, are time-barred.

In sum, Plaintiff's Title VII hostile work environment claims and her Title VII discrimination claims based on Collier's actions after May 29, 2002, are not time-barred, while her discrimination claims based on discrete acts before May 29, 2002, are time-barred. Accordingly, it is recommended that West P.C.'s motion be granted in part and denied in part on this issue.

2. Hostile Work Environment

Having cleared the limitations obstacle, Plaintiff must now show that she has sufficient evidence on the merits of her claims to withstand summary judgment. In her hostile work environment claims, Plaintiff asserts that she was verbally harassed by Collier and Bennett because of her religion, sex, and national origin and that this harassment created an environment at West P.C. that was hostile and abusive toward her. In particular, she alleges that she was subjected to an almost unceasing barrage of derogatory, demeaning, and even threatening comments and actions on account of her Muslim religion, female sex, and Pakistani national origin.

To state a claim for co-worker hostile work environment, a plaintiff must prove that: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on a protected characteristic; (4) the harassment adversely affected a term, condition, or privilege of her employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. See Celestine, 266 F.3d at 353. Where the plaintiff alleges she was harassed by a supervisor with immediate or successively higher authority over her, she need only satisfy the first four elements. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Felton, 315 F.3d at 484. Once the plaintiff makes this showing, the employer is subject to vicarious liability for the discriminatory acts of its supervisor. Faragher, 524 U.S. at 807.

For a hostile work environment claim to be actionable, the plaintiff must show that the harassment was sufficiently severe or pervasive to alter the terms or conditions of employment and create an abusive work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Celestine, 266 F.3d at 353. To this end, the plaintiff must prove her work environment was both subjectively and objectively hostile, i.e., the plaintiff must subjectively perceive the unwelcome harassment as being severe or pervasive, and this subjective perception must be objectively reasonable. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); Frank v. Xerox Corp., 347 F.3d 130, 138 (5^th Cir. 2003).

In determining whether a workplace is hostile or abusive, the court examines all circumstances, and focuses on factors such as the frequency of the discriminatory conduct; its severity; whether the conduct is physically threatening or humiliating, or instead a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Walker, 214 F.3d at 625 (quoting Harris, 510 U.S. at 23).

a. Religious Hostile Work Environment

Plaintiff contends that she was subjected to unwelcome harassment while working at West P.C. on account of her religion. The court has reviewed the summary judgment evidence and considered all of relevant circumstances surrounding Plaintiff's allegations. Having done so, the court finds the evidence creates material fact issues on her religious hostile work environment claim.

First, as a member of the Muslim faith, Plaintiff belongs to a protected class. With regard to the second and third elements of her claim, Plaintiff gave numerous examples in her sworn affidavit of how she was harassed at work by Bennett and Collier because of her Muslim religion. In particular, she testified that Bennett routinely made malicious and vitriolic remarks about Muslims, such as that "all Muslims should be bombed because they are f____ing terrorists" that he wished "all these Muslims were wiped off the face of the earth," and that whenever he saw a Middle Eastern clerk working in a convenience store, he "wanted to shoot the bastard." In addition, Bennett told Plaintiff that she needed to take off her pendant because it said "Allah" and because she "just might get shot" if she left it on. Plaintiff testified that she did take off her pendant because she felt physically threatened by Bennett and feared for her personal safety. Moreover, Bennett asked Plaintiff to explain what she was being taught at her mosque and inquired whether it was "connected with terrorists." Plaintiff also testified that Bennett "informed" her she could have several husbands because she was Muslim. According to Plaintiff, Bennett made these hateful and threatening comments about Muslims while standing close to her and pointing a finger in her face.

In addition to Bennett's harassment, Plaintiff testified that Collier also engaged in religious harassment. For example, he placed on her desk newspaper articles regarding mosques in Afghanistan that taught terrorism, along with a note telling her to come into his office and justify such activity. She also testified that Collier demanded that she explain what was being taught at the mosque she attended, implying it too was teaching terrorism.

Plaintiff made absolutely clear that the harassment by Bennett and Collier was entirely unwelcome. She testified, for instance, that she lodged complaints over and over again with both Gomez and Collier. She also testified that the harassment made her fear for her personal safety and caused her to suffer anxiety attacks.

On the fourth element of a prima facie case, the court finds that the religious harassment was severe and pervasive enough to alter the terms and conditions of Plaintiff's employment and create a hostile and abusive work environment. West P.C.'s attempt to characterize the harassment as "a couple of comments and several questions . . . relating to her Muslim faith" is unpersuasive. On the basis of Plaintiff's allegations, a reasonable trier of fact could conclude that the constant barrage of anti-Muslim comments and other harassing conduct affected Plaintiff's ability to work competently at West P.C. and discouraged her from staying there.

As both Bennett and Collier acted as Plaintiff's supervisors, Plaintiff need not submit proof on the fifth element, and West P.C. may be held vicariously liable for their actions.Faragher, 524 U.S. at 807. Liability is not imposed automatically, however, as the Supreme Court has rejected the theory of strict liability. Id. (citing Meritor, 477 U.S. at 72).

The Fifth Circuit has read the Supreme Court's twin opinions inFaragher and Ellerth to hold that vicarious liability will automatically attach to an employer in two circumstances: (1) when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment; or (2) when the harassing employee is a proxy for the employer. Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 383-84 (5^th Cir. 2003) (citing with approval Johnson v. West, 218 F.3d 725, 739 (7^th Cir. 2000)). The court finds that there is a fact issue as to the first prong, that is, whether Collier's and/or Bennett's harassment culminated in Plaintiff's discharge. In addition, the court finds that Collier acted as a proxy for West P.C. due to his authority to discipline and discharge West P.C. employees.

Further, even if the court assumed that neither of the prongs were met, and vicarious liability did not automatically attach, West P.C. has not shown that it is entitled to theEllerth/Faragher affirmative defense. The defense is comprised of two elements, both of which the employer must satisfy by a preponderance of the evidence: (1) the employer exercised reasonable care to prevent and remedy promptly any harassment; and (2) the plaintiff unreasonably failed to take advantage of any preventative or remedial opportunities provided by the employer. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 806-07; Watts, 170 F.3d at 509-10. The court need not reach the second element because Plaintiff presented some evidence, albeit contested, that demonstrates that Collier and Gomez, the two West P.C. managers to whom Plaintiff reported the harassment, failed to remedy promptly the situation. Indeed, the evidence shows that Bennett continued to harass Plaintiff up to the time she was fired. Accordingly, the court recommends West P.C.'s motion be denied on this claim.

b. Sexual Hostile Work Environment

West P.C. also argues that it is entitled to summary judgment on Plaintiff's claim for sexual harassment because, even assuming Decker and Bennett made the comments attributed to them, those comments were not sufficiently severe or pervasive, as a matter of law, to alter the terms or conditions of Plaintiff's employment. The court does not agree. West P.C. does not dispute, for purposes of its motion, that Plaintiff can satisfy the first three elements on her claim because she is female, was subjected to unwelcome harassment, and the harassment was because of her female sex.

West P.C. challenges, however, Plaintiff's ability to satisfy the fourth element, that is, that the harassment was so severe or pervasive that it altered the terms, conditions, or privileges of her employment. The summary judgment record shows this argument to be without merit.

Plaintiff testified in her sworn affidavit that Decker constantly called her telephone extension at work to ask her out on dates, told her he wanted to have sex with her, and insisted that "one day it would happen for us (sex) because he knew [she] liked him." She testified that when she rejected Decker's advances and told him she was married, he would say, "I won't tell if you won't" and "I'll give you the time of your life." She stated that Decker made lewd comments about the dress she was wearing while deliberately looking up and down her body. According to Plaintiff, Decker told her that he liked dark, sexy women with long hair, that she should wear skirts at least four inches above her knee, and that she "was just his type." She also testified that Decker would ask her if her husband objected to the type of clothes she wore and that, when she asked why, he told her "I would make you take them off for lots of sex." Plaintiff stated that she rebuffed each one of Decker's overt sexual advances, telling him he had the wrong idea and that she was happily married. However, this did not deter Decker from continuing to make sexually inappropriate and demeaning comments. Additionally, Plaintiff stated that Bennett told her "he could smell [her] period on [her]" and that he could "smell when [she had] had sex."

The court finds that, on the basis of the foregoing evidence, a reasonable trier of fact could conclude that Decker and Bennett's continuous harassment of Plaintiff was sufficiently severe and pervasive so as create an objectively hostile and abusive environment at West P.C. First, the record shows that Decker harassed Plaintiff almost on a daily basis for more than an insignificant period of time. Second, Decker and Bennett's comments were subjectively perceived by Plaintiff to be humiliating, demeaning, and extremely serious, rather than simple teasing or offhand comments, and this perception was objectively reasonable. The court is not persuaded by West P.C.'s exhortations that the statements were merely light-hearted banter or flirtatious behavior.

In addition, material fact issues exist as to whether Decker and Bennett's sexual harassment of Plaintiff affected the terms, conditions, or privileges of her employment. For one thing, Plaintiff alleges she was fired in direct response for complaining about the harassment. In addition, Plaintiff testified that the harassment caused her to experience anxiety attacks and that, in turn, this led to her being prescribed several anti-anxiety and anti-depression medications.

With regard to the final element, the record shows that Gomez, a West P.C. manager, knew that Decker was harassing Plaintiff. For instance, Plaintiff testified that she repeatedly complained to Gomez about Decker's comments and behavior and that, when Plaintiff did so, Gomez indicated she knew Decker had been pursuing Plaintiff.³⁰ Further, Plaintiff stated that when Decker was transferred to the side of the office where she was working, Gomez asked Plaintiff if she was alright with it.³¹ When Plaintiff expressed reservations to Gomez, Gomez reassured Plaintiff nothing would happen.³² Plaintiff further testified that despite the fact that Gomez was aware of the harassment, she failed to take any steps to remedy the situation.³³ According to Plaintiff, on more than one occasion Gomez even told her she should stop complaining and focus on her job because the complaining was making her look bad.³⁴

30 Khan Aff. ¶¶ 41, 55, 57.

31 Id. ¶ 43.

32 Id.

33 Id. ¶ 41.

34 Id. ¶ 41a.

Plaintiff also testified that she reported Bennett's conduct to Collier and Collier promised to speak to Bennett, but the harassment continued. Even without proof of the fifth element, West P.C. may be held vicariously liable for Bennett's conduct from December 17, 2001, when he was promoted to a position with supervisory authority over Plaintiff. Assuming vicarious liability would not automatically attach to this claim, West P.C. may raise the employer's affirmative defense. However, it has not shown that it is entitled to summary judgment on that defense. Questions remain both as to whether West P.C. exercised reasonable care to prevent and promptly remedy the harassment and whether Plaintiff unreasonably failed to take advantage of available preventative or remedial opportunities.

In sum, Plaintiff has raised a genuine issue of material fact on each element of her sexual harassment claim. Based on the foregoing evidence, a reasonable jury could find that Plaintiff was subjected to a sexually hostile work environment. Whether the jury ultimately thinks the evidence before it is legally sufficient for Plaintiff to succeed on this claim is another matter altogether. West P.C.'s motion for summary judgment should be denied on this ground.

c. National Origin Harassment

West P.C. also argues that summary judgment should be granted on Plaintiff's national origin harassment claim. "National origin" refers to the country of birth or the country from which a person's ancestors originated. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88-80 (1973). In its motion, West P.C. asks the court to look only at comments which explicitly mentioned Pakistan or Pakistanis, without reference to any harassment she received on account of being a Muslim who was perceived to be Middle Eastern. The court declines to make its determination in such a legal vacuum and with a blind eye to the totality of the circumstances.

West P.C. is correct that the only specific reference in the record to Pakistan is Plaintiff's allegation that Bennett told her it made him angry that "all these damn Pakistanians [sic] come from Pakistan and take our jobs and can't speak a word of English and . . . they want to have big businesses . . . and big cars." However, this does not end the inquiry. In Jatoi v. Hurst-Euless-Bedford Hospital Authority, 807 F.2d 1214 (5^th Cir. 1987), the Fifth Circuit expressly recognized the inherent difficulty in attempting to distinguish discrimination based on national origin from that based on race, in the context of a Section 1981 claim. The court set forth a general rule of thumb for lower courts to follow: "[w]hen a plaintiff asserts that he has suffered discrimination based on his membership in a group that is commonly perceived as 'racial' because it is ethnically and physiognomically distinct, we will treat the case as asserting a claim under § 1981 whether he labels that discrimination as based on "national origin" or on "race." Id. at 1218. The court is persuaded that this reasoning is equally applicable to a Title VII harassment claim.

This point is crucial to Plaintiff's claim because, while there is not much summary judgment evidence explicitly mentioning Pakistan, the record is replete with instances in which Collier and Bennett exhibited discriminatory animus toward persons of Middle Eastern descent, as discussed above. As such, fact issues preclude summary judgment on this claim.³⁵

35 West P.C.'s Section 1981 argument is without merit for the same reason.

3. Retaliation

Plaintiff also claims that she was fired in retaliation for complaining to Collier and Gomez about the harassment. To state a claim for retaliation under Title VII, an employee must show: (1) she engaged in activity protected by Title VII; (2) she suffered an adverse employment action at the hands of her employer; and (3) a causal connection exists between the protected activity and the adverse employment action. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471 (5^th Cir. 2002).³⁶ West P.C. concedes that Plaintiff has met the first two elements, due to the fact that she engaged in protected activity by reporting the harassment to her supervisors,³⁷ and because she was fired, which qualifies as an adverse employment action.

36 The same elements apply to retaliation claims brought under Section 1981, Foley, 355 F.3d at 340 n. 8, and the TCHRA,Pineda v. United Parcel Services, Inc., 360 F.3d 483, 487 (5^th Cir. 2004) (citing Wal-Mart Stores, 31 S.W.3d at 295) (noting that Texas courts require the same three elements to establish a prima facie case of retaliation as do federal courts).

37 "Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII." Green v. Admn'rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5^th Cir. 2002). The court reads this requirement broadly; any informal complaints Plaintiff lodged with her supervisors or managers would suffice.

Instead, West P.C. argues that Plaintiff has failed to present any evidence on the causation element. This argument has no merit. The court is persuaded that the summary judgment evidence raises a genuine issue as to whether a causal connection existed between Plaintiff reporting the harassment and being fired. Plaintiff testified that she repeatedly notified both Collier and Gomez that she was being harassed, and that she was still lodging complaints up to the time that she was discharged. Frustrated that Gomez and Collier were not taking any steps to prevent any future harassment, Plaintiff wrote a letter to Collier on August 12, 2002, which detailed her complaints at length.³⁸ Just over two weeks later, on August 29, 2002, she was fired. The court is satisfied that this evidence is sufficient to meet the causation prong and, therefore, establish a presumption of retaliation. See Evans v. City of Houston, 246 F.3d 344, 354 (5^th Cir. 2001) (noting that a time lapse of four months has been found sufficient to establish a causal connection for purposes of summary judgment).

38 Letter from Plaintiff to Collier, Docket Entry No. 55, Exhibit 5.

West P.C. contends that Plaintiff was not fired in retaliation for lodging complaints but, instead, because she spread unfounded rumors about West P.C.'s financial stability, upper management, and affairs between employees and supervisors. This is sufficient for West P.C. to satisfy its burden of producing a legitimate, non-retaliatory explanation for firing Plaintiff and, therefore, the presumption of retaliation falls to the wayside.

Plaintiff contends that West P.C.'s proffered explanation is either false or a pretext for the true reasons for her termination. The court examines the relevant evidence. Plaintiff testified that she repeatedly complained to Collier and Gomez about the harassment and that, despite her pleas, neither manager took steps to cure the harassment. According to Plaintiff, Gomez requested that she stop complaining and told her that complaining made her look bad.³⁹ Collier told Plaintiff he could not do anything about Bennett's harassment because Bennett was set in his ways and could not be changed.⁴⁰ Collier eventually even accused Plaintiff of having "something against" Bennett.⁴¹ At some point in late 2002, Collier recommended that Plaintiff make friends with Bennett in an attempt to resolve their dispute.⁴² Plaintiff maintains that she complied with this request, but that Bennett only made additional demeaning comments about Muslims and persons of Middle Eastern descent.⁴³ On August 12, 2002, Plaintiff wrote the letter complaining to Collier. On August 29, 2002, she was fired.

39 Khan Aff. ¶ 41a.

40 Id. ¶¶ 60-61.

41 Id. ¶ 63.

42 Id. ¶ 66.

43 Id.

Viewing the evidence in a light most favorable to Plaintiff, the court finds that several factors counsel in favor of finding a fact issue on pretext. First, Plaintiff's complaints of harassment to Gomez and Collier were repeated and made over an extended period of time, according to Plaintiff. Second, Gomez and Collier had actual knowledge of such harassment and displayed overtly negative attitudes regarding Plaintiff's complaints about the harassment. Third, Collier and Gomez were the West P.C. employees who terminated Plaintiff's employment. Fourth, by firing Plaintiff, West P.C. chose to bypass less severe options provided under its "progressive discipline" policy.⁴⁴ The policy provided that, with respect to most disciplinary problems, an employee's first offense warranted a verbal warning, the next offense warranted a written warning, another offense could lead to suspension, and yet another offense called for termination of the employee.⁴⁵ Fifth, there was an extremely close temporal proximity between the Plaintiff's letter of August 12, 2002, in which she set out in detail allegations of unceasing harassment, and her firing. The court believes that, taken together, this evidence raises a question for the jury as to whether West P.C. truly fired Plaintiff for spreading rumors, or whether she was terminated in retaliation for reporting harassment. Accordingly, the court recommends that West P.C.'s motion be denied on this claim.

44 See James A. West, P.C. Employee Handbook, Progressive Discipline, Docket Entry No. 55, Exhibit 12.

45 Id.

4. Religious Discrimination

Plaintiff next claims that Collier discriminated against her because of her Muslim religion by refusing to grant her permission to leave work earlier than usual on Friday afternoons so that she could drive to her mosque and attend full prayer service. To state a prima facie case of religious discrimination, an employee must show that: (1) she had a bona fide religious belief that conflicted with an employment requirement; (2) she informed her employer of that belief; and (3) she was discharged for failing to comply with the conflicting employment requirement. Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495, 500 n. 9 (5^th Cir. 2001); Weber v. Roadway Exp., Inc., 199 F.3d 270, 273.

The court need not proceed any further than the prima facie stage. Plaintiff clearly met the first two elements by informing Collier that her religious observance on Fridays conflicted with her work hours. However, she has presented no summary judgment evidence raising a fact issue as to whether she was discharged for failing to comply with Collier's requirement that she attend prayer service only during her lunch break. In addition to the fact that Plaintiff failed to allege or submit evidence that she was discharged for this particular reason, Plaintiff testified that she did comply with Collier's demand. Thus, Plaintiff failed to state a prima facie case, and it is unnecessary for the court to determine whether West P.C. accommodated Plaintiff's religious practices in a reasonable manner. Bruff, 244 F.3d at 500 (citing 42 U.S.C. § 2000e) (holding that if an employee makes out a prima facie case, the burden shifts to the employer to show it is unable to reasonably accommodate the employee's religious beliefs without undue hardship). West P.C.'s motion should be granted on this claim.

5. Intentional Infliction of Emotional Distress

Finally, West P.C. asks the court to grant summary judgment in its favor on Plaintiff's state law IIED claim. As stated above, a plaintiff must provide evidence on four elements to establish an IIED claim: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; (4) the emotional distress was severe. GTE Southwest, 998 S.W.2d at 611. West P.C. argues that Plaintiff cannot satisfy the second element as a matter of law.

Whether a person's conduct is "extreme and outrageous" is a question of law for the court. Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001). Conduct on behalf of the defendant is actionable only when it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993). The Texas Supreme Court has held that "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous behavior." GTE Southwest, 998 S.W.2d at 612.

The court finds that, although the conduct Plaintiff challenges in this action was highly unsuitable to the workplace and perhaps even illegal (a material fact issue exists on Plaintiff's hostile work environment claims), it does not surpass the legal threshold needed to show "extreme and outrageous" behavior. In Walker, the Fifth Circuit determined that the plaintiffs failed to meet this element of their IIED claims, even though they had stated a claim for hostile work environment. 214 F.3d at 628. The plaintiffs in that case, both black females had endured racially offensive remarks for over three years and were subjected to, among other things, comparisons to slaves and monkeys, derisive remarks regarding their African heritage, patently offensive remarks regarding the hair of African-Americans, and conversations in which a co-worker and supervisor used the term "nigger." Id. In reaching its decision, the court found guidance from a Texas court of appeals decision, Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 740-41 (Tex.App. — Houston [14^th Dist.] 1999), in which the court held that a supervisor's frequent use of racial epithets against the employee did not rise to the level of extreme and outrageous conduct. Id. The court is unable to conclude that the harassment Plaintiff experienced was any more extreme or outrageous than the type found to exist in Walker. Therefore, ipso facto, Plaintiff cannot meet one of the essential elements of her prima facie case, and her IIED claim must fail. West P.C.'s motion should be granted on this claim.

V. Conclusion

On the basis of the foregoing, the court RECOMMENDS that ProSource's Motion for Summary Judgment be GRANTED and that West P.C.'s Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART.

The Clerk shall send copies of this Memorandum and Recommendation to the respective parties, who have ten days from the receipt thereof to file written objections thereto pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within this time period shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.

The original of any written objections shall be filed with the United States District Clerk, P.O. Box 61010, Houston, Texas, 77208. Copies of such objections shall be mailed to opposing parties and to the chambers of the undersigned, 515 Rusk, Suite 7019, Houston, Texas, 77002.