Opinion
CIVIL ACTION NO. SA-99-CA-0769 OG.
December 13, 2000.
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
Defendants have moved for summary judgment on all of plaintiff's Title VII claims, to wit: national origin and sex discrimination, and retaliation. Defendants have also requested attorneys' fees and costs based in part on plaintiff's conduct during the administrative proceedings of her claims and on the alleged frivolity of the instant lawsuit. Plaintiff has filed a response to defendants' motion and both parties have filed replies. Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, I recommend to the district court that defendants' summary judgment motion be granted and the request for attorneys' fees and costs be granted in part and denied in part.
Docket no. 86.
Docket no. 87 (Plaintiff's Response); Docket no. 95, (Defendants' Reply); and Docket no. 100 (Plaintiff's Sur-Reply).
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket no. 67.
II. Jurisdiction
The court has original jurisdiction pursuant to 28 U.S.C. § 1331 1343.III. Factual and Procedural Background
For purposes of summary judgment, the following material facts are undisputed.
Plaintiff, Susan Lopez, an Eurasian female, began employment on December 30, 1994 as a Licensed Vocational Nurse ("LVN")/Charge Nurse at one of the nursing homes operated by defendant ManorCare Health Services of Texas, Inc. ("MCHS"). As a Charge Nurse, she was responsible for managing the daily resident and nursing care activities. She also performed human resources duties for her assigned nursing staff. Importantly, her job description described the charge nurse position as providing "a role model of customer service principles." The position also entailed continuous monitoring and implementation of quality improvement efforts and ensuring that the unit functioned according to accepted MCHS quality standards. This was an at-will employment position.
Eurasian is defined as a person "of mixed European and Asian ancestry." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE — NEW COLLEGE EDITION 452 (Houghton Mifflin Company 1979). This term is not synonymous of the term Asian-American. In addition, according to Lopez' own deposition testimony, she considers herself half European and half Asian and further states that her father's heritage was Czechoslovakian, English and Irish. Docket no. 87, Lopez' Deposition, taken April 4, 2000, at 53:1-6 59:3-8.
Even though there is some dispute as to the identity of the other three defendants and particularly whether one of them is subject to liability as a parent corporation, it is undisputed that at the very least defendant ManorCare Health Services of Texas, Inc., was Lopez' immediate employer. Docket no. 87 at 4 Docket no. 86, at 2, and Exhibit D-2. I will analyze Lopez' substantive claims under Title VII first before addressing the status of the other named defendants. Thus, for purposes of this Memorandum and Recommendation only, defend ants will be collectively referred to as MHCS.
Docket no. 86, Exhibit D-5.
Id. During the last part of her employment with MCHS, Lopez worked as a Charge Nurse in the C-Unit, 3:00-11:00 p.m. shift. Docket no. 86, Exhibit D-4, at 204-05. The alleged acts of discrimination of which she complains occurred while she was working in this unit. Id.
Id. at Exhibit D-6.
According to the employee handbook in effect during Lopez' employment, MCHS used a progressive discipline procedure to correct unacceptable work behavior. Under this procedure, work rule offenses were categorized as minor, major, or critical. Depending on the seriousness of the offense, the first offense was usually categorized as either a minor or major offense. The progressive disciplinary measures imposed for a minor and/or major offenses could range from an oral reprimand, a written warning, a final written warning, to discharge. Critical offenses, even as a first offense, were subject to immediate discharge. The employee handbook also allowed for a suspension without pay pending investigation of a work rule violation. Only disciplinary actions occurring within the prior year were considered in imposing corrective disciplinary action. It is undisputed that Lopez acknowledged having received the employee handbook, which contained MCHS' progressive disciplinary procedure, and that she read and understood its content.
Id.
Id.
Id.
Id. (Lopez' Acknowledgment Form).
The summary judgment record demonstrates that beginning in June of 1997, through her discharge a year later, Lopez was disciplined a total of five times. Lopez' offenses, and a narrative of the same, according to the undisputed employee disciplinary records, included:
1. Misplacing Eye Drop Medication. On June 26, 1997, the Director of Nursing ("DON"), Jean Rodriguez, gave Lopez a written warning for dispensing eye drops to a patient and later misplacing the medication by not returning it to the locked medication cabinet. Fellow co-worker, Emma Walton, reported the incident. MCHS incurred an extra expense of $50.00 to replace the medication. Further, Lopez' actions, according to the warning, posed a safety hazard to the nursing home patients, visitors and staff. The written warning also provided that if the eye medication would have been a narcotic or other controlled substance, MCHS would have had to report Lopez to the licensing board. Lopez, by her signature, acknowledged having received the written warning. According to the employee handbook, this was a major offense.
2. Failing to Properly Assess a Resident's Health Condition. On September 17, 1997, the DON at the time, Connie Stigen, gave Lopez a written warning for failing to follow MCHS' policies and procedures by not properly assessing and monitoring a resident's health condition upon his return from the hospital emergency room. For example, according to the written warning, Lopez failed to properly report the resident's seizure condition by mistaking it for a heart attack. She also failed to write admission orders for the resident. As the written warning further explained, failure to adequately give a report or to assess a resident's health status in accordance with policies and procedures, causes a lapse in communication among the nursing staff which could cause potential harm to the patient. The warning forewarned Lopez that further misconduct "will result in discipline progressive in nature up to and including termination of employment." Upon being read the written warning, Lopez refused to sign it. According to the employee handbook, this was a major (and possibly critical) offense.
3. Using Foul Language at the Nurse's Station While on Duty. On October 22, 1997, DON Stigen gave Lopez a final written warning for yelling "shut the hell up" to another employee while on duty at the nurses' station. Lopez' shift-supervisor, Neva Nichols, reported the incident. This final written warning was read to Lopez but she refused to sign it. According to the employee handbook, this was a major offense.
4. Failing to Perform Job Duties and Insubordination. On January 22, 1998, Lopez received her second final written warning for failing to follow the instructions given by her supervisor to complete the admission paperwork of residents assigned to her unit. She not only refused to follow her supervisor's orders, but also acted in a defiant manner towards her supervisor. Fellow co-worker, Georgette Poll, reported this incident. According to the written warning, Lopez' failure to provide a continuity of care to her assigned residents was in direct violation of her job duties as a charge nurse. Again, MCHS forewarned Lopez of the consequences of her actions and of the progressive nature of the disciplinary process. This second final written warning was read to Lopez, but she refused to sign it. According to the employee handbook, this was a critical offense.
5. Rendering Negative Customer Service/Patient Neglect. On June 8, 1998, Lopez was suspended for three days pending an investigation for her failure to properly follow MCHS' guidelines and the particular doctor's orders for the handling of this resident's diabetes' condition. Her nursing supervisor, Tamara Wyatt, imposed the suspension, after having received the report of the incident from Lopez' fellow nurse, Margaret Barnes. This offense included failing to call the resident's doctor when the accu-check (blood glucose) was alarmingly low and the resident was cold, perspiring and slumped over. Lopez also did not monitor the resident's vital signs with the frequency required by MCHS' hypoglycemia policy. In addition, Lopez, administered a medication, Glucerna, which was not part of the resident's prescribed medical treatment. According to the employee handbook, this was a critical offense.
Docket no. 86, Exhibit D-7.
Id. at Exhibit D-6.
Connie Stigen also appears in the pleadings and supporting evidence as "Connie Stigen-Hitchcock." For purposes of this Memorandum, the name "Connie Stigen" will be used.
Id. at Exhibit D-8.
Id. at Exhibit D-6.
Id. at Exhibit D-9.
Id. at Exhibit D-6.
Id.
Id. at Exhibit D-22.
Id. at Exhibit D-11.
Id. at Exhibit D-6.
Based on the investigation of the hypoglycemia incident and a review of Lopez' extensive disciplinary record which showed two final warnings prior to her last offense, MCHS, through the acting DON, Dawn Aparicio, terminated Lopez' employment on June 12, 1998.
Id. at Exhibit D-12, and Docket no. 87, Exhibit C, Lopez' Termination Notice.
Prior to her discharge, however, Lopez had already begun to administratively challenge what he deemed illegal discrimination against her. After receiving the first final written warning, Lopez filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 30, 1997, alleging national origin discrimination by DONs, Jean Rodriguez and Connie Stigen. On February 10, 1998, Lopez first amended her EEOC charge to incorporate the January 22, 1998 second final written warning and include a claim of retaliation. On June 17 25, 1998, Lopez amended her EEOC charge a second and third time, incorporating her suspension and discharge from employment.
Id. at Exhibit D-3.
The EEOC conducted an on-site investigation and concluded there was no evidence of discrimination on the part of MCHS in the progressive discipline, suspension and discharge of Lopez. On April 21, 1999, the EEOC issued its Dismissal and Notice of Rights (commonly known as the "Right to Sue" letter), stating that based on its investigation, it was unable to conclude that a Title VII violation had occurred. Lopez timely filed this action on July 16, 1999, claiming that she was discriminated against based on her national origin and sex in that she was subjected to unfair disciplinary practices (i.e., she received different treatment as compared to other similarly-situated employees not members of her protected class) that culminated in her discharge.
Id. at Exhibit D-18.
Id. at Exhibit D-20.
As in the EEOC proceedings, Lopez does not base her lawsuit on her disagreements concerning the discipline received for her work rule violations, but instead contends that several Anglo employees, as well as male employees, committed similar or more serious work rule offenses, and received different and more lenient treatment than she did. Further, Lopez alleges that MCHS, through DON Stigen, retaliated against her for having filed an EEOC charge by harassing her and assigning her additional workload. She also claims that she was terminated for having filed an EEOC charge.
Docket no. 87, at 13-14; and docket no. 100, at 3.
Id. at 5-13.
Id.
MCHS has moved for summary judgment, arguing that Lopez cannot establish a prima facie case of disparate treatment discharge on the bases of national origin and sex, and retaliation. Even assuming that Lopez has established a prima facie case of discrimination, MCHS argues that it had a legitimate non-discriminatory business reason for terminating her employment. According to MCHS, Lopez cannot show that the reason was pretextual.
IV. Issues Presented
(1) Whether Lopez has established a prima facie case of disparate treatment discharge on the bases of national origin and/or sex under Title VII?
(2) Whether Lopez has established a prima facie case of retaliation under Title VII?
(3) Whether MCHS is entitled to an award of attorneys' fees and costs?
V. Summary Judgment Standard
The applicable standard in deciding a motion for summary judgment is set forth in FED.R. CIV. P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case such as this one, the court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
See La Pierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas, 997 F.2d 62, 65-66 (5th Cir. 1993)).
A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id.; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id.
Anderson, 477 U.S. at 257.
The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings. Rather, the nonmovant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the nonmovant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FED R.CIV.P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id. at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields, 922 F.2d at 1187.
A. MCHS' Objections To Lopez' Summary Judgment Evidence
In its reply to Lopez' response, MCHS has filed objections to the admissibility of some of Lopez' summary judgment evidence. I will now address each one of these objections.
First, MCHS objects to the admissibility of Exhibit 4-A (Bates No. MC.00822.1) to the Lopez' Deposition. This document appears to be MCHS' Interdisciplinary Notes concerning the hypoglycemia incident for which Lopez was suspended and eventually terminated. To the extent the document was produced for Lopez by MCHS during discovery, as the affidavit of Lopez' attorney states, MCHS' objections to the same are denied.
Docket no. 87, Exhibit A.
Second, MCHS objects to Letter from Lopez' Attorney, attached as Exhibit B to Lopez' response to summary judgment, offered to establish the identity of the proper defendant for purposes of liability as the parent/holding company of MCHS. Because I found it unnecessary to address this liability issue given my recommendation to the district court concerning Lopez' substantive claims, as discussed below, MCHS' objection to this Exhibit is denied.
Third, and more importantly to these proceedings, MCHS raises several objections to the affidavits of Lopez' fact witnesses: Irene Acclise, Julianna Vargas (also presented as an expert witness), Sherri Zaskoda, and Irene Gray. MCHS raises the following objections to these affidavits: (a) the affidavits do not comply with the requirements of FED.R.CIV.P. 56 because they are not made on personal knowledge, do not set forth such facts as would be admissible in evidence, and do not show affirmatively that the affiant is competent to testify to the matters stated in their respective affidavits; and (b) with respect to the opinions expressed by Vargas as an expert, MCHS argues that they do not meet the requirements for admissible expert testimony as required under the Federal Rules of Evidence and controlling case authority.
Although I agree that these affidavits are replete with inadmissible testimony, legal conclusions, hearsay, and even gossip, instead of excluding these affidavits in their entirety, my reliance on them, as discussed more fully below within the context of Lopez' allegations, will be limited to those statements, if any, reflecting these witnesses' personal knowledge. Thus, MCHS' request to strike these affidavits is denied.
With respect to Vargas' attempt to present expert testimony, particularly her opinions on MCHS' progressive disciplinary procedures and the discipline imposed on Lopez for using foul language while on duty and for the hypoglycemia incident, that testimony is inadmissible. Lopez has failed to present a sufficient predicate for Vargas to testify as an expert witness on these matters. Further, Vargas' own testimony (as a fact and expert witness) shows that she is not a disinterested witness. For example, even though MCHS states that Vargas was terminated before Lopez in 1998 for falsifying doctor's orders, Vargas believes that the reason for her termination was because she was Hispanic and DON Stigen wanted to replace her with her paramour, Michael Davis. Based on the evidence of record, MCHS' objections to the Vargas' testimony, as a fact and expert witness, to the extent they are based on its admissibility in this summary judgment proceedings only, are granted.
Docket no. 87, Exhibit E Exhibit I, at 250:1-25 251:1-25.
See also Docket no. 95, at 14-16 (MCHS' specific objections to Vargas' testimony).
VI. Analysis and Conclusions of Law
A. Analytical FrameworkA plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Absent direct evidence of discriminatory intent, as is in this case, proof via circumstantial evidence is evaluated using the framework set forth in the seminal case of McDonnell Douglas Corp., v. Green. "First, the plaintiff must establish a prima facie case of discrimination." Second, the employer must respond with a legitimate, nondiscriminatory reason for its decision. The burden on the employer is only one of production, not persuasion, involving no credibility assessments. Third, if the employer carries its burden, the "mandatory inference of discrimination" created by the plaintiff's prima facie case, "drops out of the picture" and the fact finder must "decide the ultimate question: whether [the] plaintiff has proven [intentional discrimination]."
411 U.S. 792 (1973).
Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000).
See McDonnell Douglas, 411 U.S. at 802.
See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
Id. at 256 n. 10.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 51-12 (1993).
In making this showing, the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" However, as the United States Supreme Court stated in Hicks, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. It is "not enough . . . to disbelieve the employer; the [fact finder] must believe the plaintiff's explanation of intentional discrimination." This statement in Hicks apparently caused confusion as to whether intentional discrimination could be inferred from a showing of pretext.
See McDonnell Douglas, 411 U.S. at 804.
Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255 n. 10).
Hicks, 509 U.S. at 524.
Id. at 519 (Emphasis in original).
Reeves, 120 S.Ct. at 2104-05 (describing the circuit conflict resulting from the confusion).
The United States Supreme Court recently resolved the circuit split in Reeves by rejecting the "pretext-plus" approach, thus overruling the Fifth Circuit's decision in that case. A unanimous Court held that the Fifth Circuit had "misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence." "Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."
Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th Cir. 1999); and Reeves, 120 S.Ct. at 2108.
Reeves, 120 S.CT. at 2108.
Id. at 2109.
The Court in Reeves further stated that, more likely than not, a showing of pretext will lead to an inference of discrimination: "Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."
Id. at 2108-09.
The Reeves Court also cautioned that there may be instances, although rare, where a showing of pretext would not be sufficient to infer discrimination. Such a situation would occur "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred."
Id. at 2109 (emphasis added). The Reeves ruling rejected part of the Fifth Circuit's decision in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (1996). In so doing, the Court noted that Rhodes stood for the proposition that the "plaintiff must introduce sufficient evidence for [the] jury to find both that [the] employer's reason was false and that [the] real reason was discrimination." Reeves, 120 S.Ct. at 2105 (emphasis added) (statement in parenthetical). This pretext-plus requirement is contrary to the Reeves Court's holding that the employer's prevarication may be sufficient in many cases to demonstrate discriminatory animus. Id. at 2108-09. While portions of the Rhodes decision do not appear to fully comport with Reeves, the Fifth Circuit has already recognized central features of the Rhodes decision that survive Reeves. See Vadie v. Miss. State Univ., 218 F.3d 365, 373 n. 23 (5th Cir. 2000) ("Rhodes is consistent with Reeves and continues to be the governing standard in this [Fifth] Circuit."). Nevertheless, in evaluating plaintiff's discrimination claim under the McDonnell Douglas framework, this court is cognizant that it must not unduly restrict a plaintiff's circumstantial case of discrimination.
With this framework in mind, I will proceed to analyze Lopez' evidence in support of her prima facie cases of discrimination under Title VII.
B. Application of the Analytical Framework
Title VII provides that:
[i]t shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin.
Under the McDonnell Douglas circumstantial evidence framework, to establish a prima facie case of disparate treatment discharge on the bases of national origin and sex, Lopez must prove that: (1) she is a member of a protected group; (2) she was qualified for the job that she held; (3) she was discharged; and (4) after her discharge, MCHS filled the position with a person who is not a member of the protected group. Because Lopez does not allege that MCHS replaced her with an individual not in her protected group, the fourth element of the prima facie case is, more appropriately, that after Lopez' discharge, others who were not members of her protected class remained in similar positions. To succeed in establishing her prima facie case of disparate treatment, Lopez must show that other similarly-situated employees, non-members of her protected class, were treated differently under circumstances "nearly identical to hers."
See Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990).
See Burdine, 450 U.S. at 254 n. 6; McDonnell Douglas, 411 U.S. at 802. In those cases the Supreme Court stated that "the specification . . . of the prima facie proof required [in McDonnell Douglas] is not necessarily applicable in every respect to differing factual situations." McDonnell Douglas, 411 U.S. at 802 n. 13; Burdine, 450 U.S. at 253-54 n. 6.
See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (no disparate treatment found) (citations omitted).
Lopez argues that similarly-situated Anglo employees were not disciplined for committing the same or more serious offenses than the ones she committed. With respect to male employees, Lopez argues that DON Stigen showed sexual favoritism towards at least two male subordinates by condoning their work rule violations.
Docket no. 87, at 7-8 13-14 Docket no. 100, at 6-14.
1. Lopez' EEOC Charge
Before analyzing Lopez' prima facie evidence of disparate treatment, it is important to discuss whether the continuing violation theory applies to this case. In its pleadings, MCHS refers to Lopez' amended EEOC charge as constituting more than one charge. In responding, Lopez argues that the continuing violation theory should be applied, allowing all the incidents for which she complains now to be considered part of her prima facie case. Based on my understanding of the continuing violation theory, I find it inapplicable to this case. The record in this case shows that Lopez filed an EEOC charge and amended the same on subsequent occasions. By doing so, she immediately acted to protect her rights in what she believed was MCHS' discrimination against her.
Docket no. 86, at 7.
Docket no. 87, at 5.
The continuing violation theory only reserves claims based on acts outside the prescriptive period for filing an EEOC charge (i.e., within 300 days from the alleged act of discrimination) if the plaintiff timely files a claim based on a present violation. Because Lopez initially complained to the EEOC as soon as she received her first two disciplinary warnings, and continued to amend her EEOC charge to include other disciplinary actions she deemed discriminatory (including her discharge), the continuing violation theory does not apply. Whether particular disciplinary warnings constitute adverse employment actions under Title VII as interpreted by the Fifth Circuit will be discussed later in this Memorandum in the context of Lopez' retaliation claim.
See Hendrix v. City of Yazoo City, Mississippi, 911 F.2d 1102, 1103 (5th Cir. 1990) (Emphasis added).
2. Disparate Treatment Based on National Origin
Lopez, in very general terms, claims that DON Stigen and her Assistant DON, Dawn Aparicio were out to get Hispanics and Blacks, and that she was specifically targeted because she was perceived as being of Hispanic origin. According to Lopez' own deposition testimony, she alleges that she informed Stigen and Aparicio that she was Eurasian, but apparently they still discriminated against her because they believed that she was Hispanic. This argument is inherently flawed, and although not directly contested by MCHS, I question Lopez' ability to show that she was "a protected minority" under the factual circumstances of this case and that MCHS discriminated against her on the basis of her national origin.
Docket no. 87, Exhibit H, at 1. Ironically, according to the Affirmative Action Roster submitted by both MCHS and Lopez as one of their exhibits, Assistant DON Aparicio is Black. Docket no. 95, Exhibit D-26; and Docket no. 87, Exhibit C Exhibit H, Lopez' deposition, taken April 4, 2000, at 62:8-9.
Significantly, the EEOC on-site investigator made the following statement in his summary dated March 11, 1999:
CP is not Hispanic. She acquired Hispanic Surname thru marriage. During my interviews with CP [Charging Party], I also considered her to be Anglo. CP was considered a Caucasian (Anglo) by all individuals who worked with her and who were interviewed. There was no evidence that CP told any official or co-worker that she was something other than Anglo.
Docket no. 86, Exhibit D-18. This is also corroborated by Lopez herself who, upon being hired, identified herself as being a white female on an employment form. Docket no. 95, Exhibit D-26A.
Nevertheless, Lopez identifies two Anglo nurses who purportedly received better treatment from MCHS than she did: Patricia Ellis and Patti Rupard. According to Lopez, Ellis had chronic tardiness and absenteeism problems that MCHS apparently ignored. Rupard was involved in the foul language incident for which Lopez was disciplined, but according to Lopez, Rupard was not. Lopez also claims that Rupard even committed a more serious offense by walking away from the nurses' station during the incident, leaving residents without an attending nurse.
Docket no. 87, at 7-8; and docket no. 100, at 11-12.
Contrary to Lopez' assertions, the uncontroverted employment records of Ellis and Rupard submitted by MCHS reveal that these two employees were disciplined in the same manner as Lopez, and, in fact, at least one of them, Ellis, was terminated.
For example, with respect to Ellis, the summary judgment evidence demonstrates that on August 19, 1997, she received a written warning for not coming to work. On March 12, 1998, Ellis received another written warning for excessive absences. The record further shows that on May 22, 1998, Ellis voluntarily resigned from employment for personal reasons. She was later rehired on August 3, 1999 but terminated on April 10, 2000 for excessive tardiness and unexcused absences. Prior to her discharge from employment, Ellis was constantly reminded, by Stigen and other managerial employees, that further deviations could result in immediate termination from employment.
Docket no. 95, Exhibit D-27, Employee Disciplinary Record of Patricia Ellis: written warning dated August 21, 1997; written warning dated March 12, 1998; handwritten notice from Ellis to Connie Stigen requesting a personal leave of absence, dated March 12, 1998; employee termination notice dated May 22, 1998; rehired on August 3, 1999; oral reprimand dated November 12, 1999; written warning dated December 7, 1999; final written warning dated March 20, 2000, 3-day suspension pending investigation of Ellis' pattern of reporting to work late, dated April 4, 2000; employee termination notice dated April 10, 2000; and HCR Manor Care Line Report, Follow-up Form, dated April 14, 2000.
Id.
Lopez has failed to bring forth competent summary judgment to rebut Ellis' disciplinary records. For example, Lopez relies on the sworn affidavit of former employee Irene Acclise who stated that Ellis did not care to show up to work on time and stayed in the parking lot with her boyfriend, and that Stigen should have known of Ellis' inappropriate behavior but failed to discipline her. This evidence is insufficient to rebut Ellis' disciplinary records. First, Acclise was a certified nurse's aid (CNA) who worked at MCHS for nine years until December 16, 1999. Nowhere in her affidavit did she state she had direct knowledge of the disciplinary process imposed on Ellis. In fact, it appears that most of her knowledge concerning Ellis was acquired through hearsay and gossip.
Docket no. 87, Exhibit D, at 1-2.
"Evidence on summary judgment may be considered to the extent not based on hearsay or other information excludable at trial." Lopez' evidence is insufficient to rebut Ellis' disciplinary records.
See Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).
Regarding Rupard, her employee disciplinary record shows that contrary to Lopez' assertions, she received a written warning for the same October 22, 1997 incident for which Lopez was disciplined. Because Rupard had not begun her shift at the time of the incident, MCHS construed her leaving work as an unreported/unexcused absence, for which she was also disciplined. Significantly, Stigen forewarned Rupard that further infractions could result in termination from employment. Lopez has not presented any evidence to rebut MCHS' characterization of Rupard's actions.
Docket no. 95, Exhibit D-27, employee disciplinary record of Patti Rupard, dated October 27, 1997.
Id.
Similarly, Lopez's argument that Rupard's warning must have been for an unrelated offense because Lopez' name did not appear in the warning, is unpersuasive. Lopez' warning for the same incident also did not mention Rupard by name. Further, based on the existing record, no reasonable juror could conclude that the reason Lopez received a final warning as opposed to Rupard's warning was because of her national origin and not because of her extensive disciplinary record. Moreover, according to the employee handbook, "the use of vile, foul, or abusive language in the workplace," is a major offense. This was not simply a "cussing" incident as Lopez claims. Whether former employees such as Julianna Vargas and Sherri Zaskoda disagreed with MCHS' policy on the use of foul language, specifically, as it applied to Lopez and Rupard on the date in question, is immaterial.
Docket no. 100, at 12.
Docket no. 86, Exhibit D-9.
Id. at Exhibit D-6, at 46.
Docket no. 87, Exhibits E F.
Further, these individuals had no direct involvement in MCHS' decision to discipline both Lopez and Rupard. Their knowledge of this incident is based on speculation, hearsay and gossip. As such, it is not competent summary judgment evidence.
See Fowler, 68 F.3d at 126.
Based on the uncontroverted summary judgment evidence, consisting of Ellis' and Rupard's employment disciplinary records and the progressive disciplinary procedure used by MCHS as explained in its employee handbook, no reasonable juror could conclude that other individuals, who were not of the same national origin as Lopez, were somehow treated more favorably than she was in MCHS' imposition of its progressive disciplinary process. Lopez received two final written warnings before she was suspended and eventually terminated from employment. Moreover, Lopez has failed to identify even one employee who had five work rule offenses within a twelve month period, as she did, and who was not terminated from employment. Accordingly, I recommend that MCHS' summary judgment motion as to Lopez's disparate treatment discharge based on national origin be granted.
Mayberry, 55 F.3d at 1092 (plaintiff did not offer evidence sufficient to support a finding that white employees in circumstances "nearly identical" to his have been treated differently); and Little v. Republic Ref. Co., 924 F.2d 93, 96-97 (5th Cir. 1991) (rejecting rebuttal evidence of disparate treatment because circumstances were not "nearly identical.").
3. Disparate Treatment Based on Sex
Turning to her sex discrimination claim, Lopez relies on the theory of sexual favoritism. Specifically, Lopez alleges that because of Stigen's voluntary sexual relationship with a subordinate, Michael Davis, he received preferential treatment over her. For example, Lopez argues that Davis had a tardiness problem and was never disciplined for it. Lopez also cites one instance in which Davis apparently left work without knowing that one of the residents assigned to him had died during his shift. According to Lopez, this was a critical infraction for which Davis was not disciplined. With respect to John Barron, Lopez argues that for a period of time, he was Stigen's favorite because of his looks, and as such, he was able to frequently ignore MCHS' policies and procedures and get away with it. As discussed more fully below, none of these allegations are corroborated by competent summary judgment evidence.
Docket no. 87, at 9 13, and docket no. 100, at 10.
Id.
It is worth noting that Lopez' sexual favoritism claim further underscores the weakness of her national origin discrimination claim because even assuming, as she contends, that she was perceived as being Hispanic, Michael Davis and John Barron are of Hispanic origin. Docket no. 95, Exhibit D-26.
There are two principal theories of sexual harassment recognized under Title VII — hostile work environment and quid pro quo. A cause of action for hostile work environment requires the existence of severe or pervasive and unwelcome verbal or physical harassment of the plaintiff due to the plaintiff's membership in a protected class. To establish liability for quid pro quo harassment, the employee's acceptance of the harassment must be an expressed or implied condition of the receipt of a job benefit, or the employee's rejection of the harassment may cause a tangible job detriment. In essence, an employer may not require sexual favors from an employee as a quid pro quo for job benefits. Lopez does not assert either form of sexual harassment.
See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).
Id. at 66-67.
See Ellert v. University of Texas, 52 F.3d 543, 545 (5th Cir. 1995).
Id.
As discussed by the Fifth Circuit, and more recently by a district court in the Southern District of Texas, most circuit courts "refuse to extend Title VII to employment decisions that are not related to impermissible gender-based distinctions." Alleged favoritism to a paramour generally has been held not to constitute discrimination in violation of Title VII because the alleged discrimination is not based on plaintiff's sex. "Title VII does not protect employees from hostile conduct that is not based on their protected status." Accordingly, the alleged preferential treatment of Davis and Barron by Stigen, if true, while perhaps unfair, is not discrimination on the basis of sex in violation of Title VII.
Ellert, 52 F.3d at 546 n. 11; and Harvey v. Chevron, U.S.A., Inc., 961 F. Supp. 1017, 1029 (S.D.Tex. 1997).
Harvey, 961 F. Supp. at 1029 (and case authorities cited there in). See also EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, EEOC Notice No. 915-048, at 2 (Jan. 12, 1990), as cited in Harvey, which provides in relevant part:
An isolated instance of favoritism toward a `paramour' (or spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. A female [plaintiff] who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.
Harvey, 961 F. Supp. at 1030 (case citation omitted).
Assuming, arguendo, that Title VII does recognize sexual harassment based on the sexual favoritism as presented in this case, Lopez has not brought forward competent summary judgment evidence of preferential treatment. For example, Lopez' claim that Davis and Stigen were romantically linked is supported only by gossip and hearsay. Hearsay, or other information excludable at trial, is not competent summary judgment evidence. Even if they were romantically linked, there is no evidence that Stigen showed favoritism towards Davis to the detriment of Lopez. According to Davis' employment records, he was also disciplined for various work rule offenses.
Fowler, 68 F.3d at 126; and Harvey, 961 F. Supp. at 1031.
For example, his disciplinary record reveals that he received a written warning on December 29, 1997, by Stigen, for a breach of professional ethics by failing to follow proper procedures in destroying an unused narcotic. In that warning, Stigen informed Davis that "further instances of failure to follow policy or any other breach of professional ethics will lead to discipline progressive in nature up to and including termination from employment." Davis received two other written warnings by Aparicio concerning his failure to perform his LVN duties in a satisfactory manner (i.e., failing to properly document a resident's skin condition). The uncontroverted employment records further show that Davis received a final written warning on September 2, 1998 for spreading rumors about a co-employee's medical condition. Shortly thereafter, Davis resigned from employment. Contrary to Lopez' unsupported allegations, there is no competent summary judgment that Davis had a tardiness problem or that he left his job without knowing that a resident assigned to him had died. The affidavit of Irene Gray, a former certified nurse's aid with no direct knowledge of Davis' disciplinary records, is insufficient to rebut MCHS' evidence.
Docket no. 95, Exhibit D-27, Employee Disciplinary Record of Michael Davis dated December 29, 1997.
Id. at Exhibit D-27, Employee Disciplinary Records of Michael Davis dated April 27, 1998 and July 27, 1998.
Id. at Exhibit D-27, Employee Disciplinary Records of Michael Davis dated September 2, 1998; and Docket no. 86, Exhibit D-18.
Id.
Docket no. 95, at Exhibit D-32, at 46:2-7.
Docket no. 87, Exhibit G.
Similarly, with respect to Barron, the undisputed employment records show that he was discharged on November 3, 1998 as soon as MCHS discovered that he had falsified information on his employment application. Prior to his discharge, he had received an oral reprimand, by Stigen, for excessive absences.
Docket no. 95, Exhibit D-27, Employee Disciplinary Record of John Barron, dated November 3, 1998.
Id. at Exhibit D-27, Employee Disciplinary Record of John Barron, dated March 6, 1998.
As already stated, favoritism of a paramour is not a viable claim under Title VII as interpreted by the majority of the circuit courts, including the Fifth Circuit. But, even if it were, Lopez has failed to demonstrate, through competent summary judgment evidence, any favoritism of Davis and Barron by Stigen. For these reasons, I recommend that MCHS' summary judgment motion on Lopez' disparate treatment claim based on sex be granted.
Based on my recommendation that Lopez has not established a prima facie case of disparate treatment discharge on the bases of national origin and sex, the burden-shifting analysis set forth in McDonnell Douglas, as refined in Hicks and more recently in Reeves, is not invoked. Even assuming, arguendo, that Lopez was successful in establishing a prima facie case and that the burden of proof shifted to MCHS, the summary judgment evidence supports MCHS' position that it terminated Lopez' employment by applying its progressive disciplinary procedure in an objective fashion and with no discriminatory animus. Lopez' evidence of disparate treatment is no more helpful or persuasive in the context of rebutting MCHS' nondiscriminatory reasons for her termination than it was at the prima facie stage of her case.
See Mayberry, 55 F.3d at 1091-92.
4. Retaliation
Lopez claims that Stigen and Aparicio retaliated against her for filing a charge of discrimination with the EEOC. Specifically, Lopez identifies the increase in her workload (i.e., additional room assignments) and her discharge. Further, she claims that the role of Clarence Conner, one of her shift supervisors, in encouraging her to file the EEOC charge because she was also of the belief that Stigen's actions towards Lopez were retaliatory, constitutes direct evidence of discrimination.
Docket no. 100, at 7-8.
Title VII makes it unlawful for an employer to discriminate against an employee "because [that employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [that employee] has made a charge . . . under this subchapter." To establish a prima facie case of retaliation, Lopez must demonstrate that: (1) she engaged in activity protected by Title VII; (2) MCHS took an adverse action against her; and (3) a causal connection exists between the protected activity and the adverse employment action. It is well-settled that the burden-shifting structure applicable to Title VII disparate treatment cases, as set forth in McDonnell Douglas, is also applicable to Title VII unlawful retaliation cases.
See Mattern v. Eastman Kodak Co., 104 F.3 d 702, 7 05 (5th Cir.), cert. denied, 118 S.Ct. 336 (1997); Burger v. Central Apartment Management Inc., 168 F.3d 875, 878 (5th Cir. 1999); and Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir. 1999).
See Byers v. The Dallas Morning News, 209 F.3d 419, 427 (5th Cir. 2000). See discussion of the applicable analytical framework, at 13-15, supra.
MCHS seeks summary judgment on Lopez' retaliation claim by arguing that she has failed to establish the third element of her prima facie case, that is, the causal nexus between her filing of an EEOC charge and her termination from employment.
Docket no. 86, at 8, 15-17.
A review of the summary judgment indicates that Lopez has undisputably met the first element of her prima facie case. An employee engages in activity protected by Title VII if she has either: (1) "opposed any practice made an unlawful employment practice" by Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. Based on the summary evidence record, Lopez engaged in protected activity when she filed an EEOC charge on October 30, 1997 and amended the same on subsequent occasions. Lopez has met her burden of establishing the first element of her prima facie case.
To establish the second prong of her prima facie case, Lopez must establish that an adverse action was taken against her. Title VII's anti-retaliation provisions address "ultimate employment decisions," not "interlocutory or mediate" decisions that might lead to ultimate decisions. Employment actions classified as adverse by the Fifth Circuit include decisions such as hiring, granting leave, discharging, promoting, or compensating. Employment actions having only a tangential effect on an ultimate decision — such as verbal threats of being fired, reprimands, a missed pay increase, and being placed on a final warning — are not sufficient to raise a claim of retaliation under Title VII.
Mattern, 104 F.3d at 707-08.
Id. The United States Supreme Court has noted that adverse employment actions within the context of Title VII constitutes a significant change in employment status, such as hiring, firing, failing to promote, demotion, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2268-69 (1998) (citations omitted). This "tangible employment decision" appears to be virtually synonymous to the "adverse employment action" which the Fifth Circuit has required as a threshold for liability in Title VII retaliation cases and other contexts. See Benningfield v. City of Houston, 157 F.3d 369 (5th Cir. 1998), cert. denied, 119 S.Ct. 1457 (1999).
See Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (holding that employer's refusal to consider employee for promotion, refusal to allow employee to attend a training conference, criticizing the employee to a government vendor, and giving employee false information regarding aspects of her employment including access to travel funds and methods of filing EEOC complaints did not constitute ultimate employment decisions. These factors were considered to be at most "tangential" to future decisions that might be ultimate employment decisions).
Under this framework, Lopez' alleged retaliatory actions committed by Stigen, such as assigning her additional rooms (an action that also affected other LVNs besides Lopez), or even giving her two final written warnings, do not constitute ultimate employment decisions protected by Title VII. The law is clear that a simple reprimand, even if Lopez disagreed with the reasons given but which carried no adverse consequences to her job status, cannot be construed as an adverse employment action entitling her to any relief. The employee's right to oppose that which she regards as discrimination must be balanced against the employer's interest in the orderly functioning of the agency. Employers have been allowed to discipline their employees for legitimate reasons, notwithstanding their exercise of protected activity. For example, counseling for failing to perform an internal procedure (to which plaintiff had been warned in the past) and for taking an unexcused absence constitutes a legitimate business decision. Accordingly, Lopez' allegations of reprimands and/or counseling for violating work rules, even if she were placed on final warning, fail to rise to the level of an adverse or ultimate employment decision as defined by established legal standards. The only viable adverse employment action raised by Lopez is her discharge.
Jones v. Flagship Int'l, 793 F.2d 714, 728 (5th Cir. 1986).
Id. at 725-29.
Id.
See Dollis, 77 F.3d at 781-7 82; Mattern, 104 F.3d at 707-09.
In order to establish the third prong of her prima facie case, that is, that a causal link existed between the protected activity and the illegal employment action, the evidence must show that the employer's decision to terminate was based in part on knowledge of the employee's protected activity. MCHS has submitted competent summary judgment evidence that Aparicio did not know of Lopez' EEOC charge at the time she made the decision to terminate her employment. At the time of Lopez' termination, Aparicio was the acting DON because Stigen was on vacation. Aparicio states that she first became aware of Lopez' EEOC charge Lopez sometime after Lopez' termination when EEOC began its investigation of the same. According to her sworn testimony, her decision was solely based on the seriousness of Lopez' last offense involving her failure to provide proper patient care in dealing with an emergency hypoglycemia episode and her extensive disciplinary record, which included two final warnings. Lopez has not submitted any competent summary judgment evidence to rebut Aparicio's testimony.
See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
Docket no. 95, Exhibit D-32, EEOC Affidavit of Dawn Aparicio.
Id.
Id.
Id.
The only evidence brought forth by Lopez is the alleged support she had from one of her night shift supervisors, Clarence Conner, to file her retaliation claim with the EEOC. According to Lopez, Conner agreed that Stigen's disciplinary actions against Lopez were retaliatory. Besides her own rendition of the conversation she allegedly had with Conner, which is inadmissible hearsay, Lopez presents no other corroborating evidence to substantiate this claim. Even if this allegation is true, it was Aparicio, and not Stigen, who terminated Lopez' employment. Moreover, contrary to Lopez' assertions, Conner admitted under oath having had knowledge that Lopez intended to file an EEOC charge of discrimination. Conner, however, denies knowing the specifics of Lopez' EEOC claims, and more significantly, taking any role in the submission of Lopez' EEOC charge.
Docket no. 86, Exhibit D-15; and docket no. 95, Exhibit D-32.
In addition, Lopez argues that the timing, between the filing of her EEOC charge and the subsequent discipline she received, establishes the causal link necessary to establish her prima facie case. In that regard she contends that it was her EEOC charge, and not her work rule violations, that motivated MCHS to terminate her employment. This argument is not persuasive because eight months had passed since the filing of her EEOC charge (October of 1997) and her termination from employment (June of 1998). Thus, a reasonable juror could also conclude that her termination, eight months after the filing of her EEOC charge, had nothing to do with Lopez' protected activity. Further, it appears that in this case, Lopez would receive a disciplinary warning, and instead of bringing her complaints of discrimination to MCHS' management for redress, she would amend her EEOC charge. Lopez cannot expect to be insulated from discipline just because she filed an EEOC charge.
After having reviewed the competent summary judgment evidence on record, I conclude that Lopez has not brought forth sufficient evidence to support a finding that "but for" Lopez' protected activity, she would have retained her employment. Furthermore, even assuming arguendo that Lopez established a prima facie case, she fails, for summary judgment purposes, to overcome MCHS' legitimate nondiscriminatory reason in terminating her employment in accordance with its progressive disciplinary process. Lopez has presented no competent evidence, besides her own conjectures, beliefs and speculation (and that of her factual witnesses), that would establish that MCHS' reason for terminating her was pretextual. A plaintiff's own subjective beliefs of discrimination, no matter how genuine, cannot serve as the basis for judicial relief.
See McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983); Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984) (noting that prima facie retaliation requires "but for" causation); and Long v. Eastfield College, 88 F.3d 300, 304-05 n. 4 (5th Cir. 1996) ("even if plaintiff's protected conduct is a substantial element in a defendant's [adverse employment] decision . . ., no liability for unlawful retaliation a rises if the [same decision would have been made] even in the absence of the protected conduct.").
See Harvey, 961 F. Supp. at 1025 (and case authorities cited therein).
Because Lopez has failed to establish the necessary nexus between the filing of her EEOC charge and her termination as required under element three of her prima facie case, I recommend that MCHS' motion for summary judgment on Lopez' retaliation claim be granted.
Lopez also rests a prima facie on the basis of the evidence offered for her discrimination claims. To the extent that such evidence may be relevant to a prima facie case of retaliation, the court finds it insufficient, as discussed in this Memorandum, a t.12-15, supra.
VII. MCHS' Request For Attorneys' Fees and Costs
MCHS requests attorneys' fees in the amount of $49,644.50 and costs or expenses in the amount of $11,065.44. As authority, MCHS cites Title VII, 42 U.S.C. § 2000e-5(k) and FED. R. CIV. P. 54(d)(2). MCHS argues that an award of attorneys' fees and costs is warranted because Lopez' claims are frivolous and groundless, and she continued to litigate this lawsuit even after it became apparent during her own deposition testimony that she had no competent evidence in support of her claims. Further, MCHS argues that Lopez' conduct of submitting a "false" affidavit in support of her EEOC charge, namely that former Jean Rodriguez discriminated against her, warrants an award of attorneys' fees and costs. In response, Lopez, simply states that she has brought forth competent summary judgment evidence, and, thus, an award of attorneys' fees is not appropriate.By this Memorandum, I recommend to the district court that MCHS' motion for summary judgment on all of Lopez' claims be granted because she has failed to establish a prima facie case of disparate treatment discharge on the bases of national origin and sex, and retaliation. If the district court accepts this Recommendation, then MCHS will be considered the "prevailing party" under Title VII, 42 U.S.C. § 2000e-5(k), and FED. R. CIV. P. 54.
As MCHS correctly points out and as undisputed by Lopez, the award of costs in cases brought in federal court is governed by FED. R. CIV. P. 54. This rule provides, in pertinent part:
"[e]xcept when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Title VII does not expressly provide otherwise, and the standard procedure is to award costs to the prevailing party in Title VII suits. After having reviewed the affidavit submitted by MCHS' counsel, as well as the proof of legal services and costs attached thereto, I find that a request for an award of costs in the amount of $11,065.44 is not unreasonable and should be granted. However, I do not recommend that attorneys' fees be awarded to MCHS.
See Byers v. The Dallas Morning News, Inc., 209 F.3d 419, 430 (5th Cir. 2000) (court affirmed the award of costs to a prevailing defendant, excluding attorneys' fees, in a Title VII summary judgment proceeding).
The "prevailing party" standard for awarding costs under Rule 54(d)(1) is less stringent than the prevailing party test for awarding attorneys' fees under Title VII. The prevailing defendant in a Title VII action may recover attorneys' fees only upon a finding that the plaintiff's claim is frivolous, unreasonable, groundless, made in bad faith, or persisted in after its character as of these has become clear. The decision to award attorneys' fees under this standard lies within the sound discretion of the district court. MCHS has not made a sufficient showing under this standard that would entitle it to an award of attorneys' fees.
Id. (citing Lewis v. NLRB, 750 F.2d 1266, 1279 (5th Cir. 1985) (where Fifth Circuit held that the standard for the prevailing defendant to recover attorneys' fees does not apply to an award of costs).
See Christianburg Garment Co., v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978), as cited in, Commonwealth Oil Refining Company, Inc., v. Equal Employment Opportunity Commission, 720 F.2d 1383, 1385 (5th Cir. 1983).
See Nieto v. LH Packing Co., 108 F.3d 621, 624 fn.9 (5th Cir. 1997) (district court's decision not to award attorneys' fees to a prevailing defendant affirmed).
In this case, contrary to MCHS' characterization of the Right to Sue Letter, the EEOC stated that based upon its investigation, it was unable to conclude that the information obtained established a Title VII violation. Significantly, this determination did not certify that MCHS was in compliance with the Title VII. Lopez did not act unreasonable or in bad faith by filing the instant action in federal court. Further, with respect to Lopez' allegations made in her affidavit submitted on October 30, 1997 in support of her EEOC charge, there is no evidence to conclude that Lopez' statements regarding former Jean Rodriguez' actions against her (i.e., in giving Lopez a warning for losing an eye drop medication) were made in bad faith or with knowledge they were false, at the time the affidavit was submitted to the EEOC. In fact, during her deposition testimony, Lopez candidly testified that she did not rely on the incident involving Rodriguez as a basis for her lawsuit. Her federal lawsuit is directed at the purported discriminatory actions taken against her by Stigen and Aparicio. MCHS' reliance on Lopez' conduct during the EEOC proceedings is insufficient to warrant an award of attorneys' fees. While this Memorandum considers Lopez' summary judgment evidence insufficient to establish discrimination, this recommendation, in and of itself, does not entitle MCHS to an award of attorneys' fees.
Docket no. 85, Exhibit D-20.
Id. at Exhibit D-4, at 180-81.
Accordingly, based on these findings, I recommend that MCHS' request be denied in part with respect to attorneys' fees and be granted in part with respect to costs.
VIII. Recommendation
Based on the foregoing, I recommend that MCHS' motion for summary judgment (docket no. 85) be GRANTED. Lopez has failed to allege facts sufficient to entitle her to relief such that there is no genuine issue of material fact under the applicable legal standards. In addition, MCHS' request for attorneys' fees and costs (docket no. 85) should be DENIED IN PART with respect to attorneys' fees and GRANTED IN PART with respect to costs.
Based on this recommendation, I will enter a separate order denying plaintiff's motion (docket no. 98) to amend her complaint a second time to add a new defendant for purposes of establishing parent company liability.