Opinion
Civil Action No. 3:03-CV-2978-N.
March 28, 2005
ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed on August 6, 2004, and Plaintiff's Motion to Enlarge Time, filed on November 1, 2004. The motion to enlarge time is granted. Because Defendants have established a legitimate, nonpretextual explanation for terminating Plaintiff's employment, and for other reasons explained below, the motion for summary judgment is also granted.
I. BACKGROUND
On April 21, 2002, Plaintiff Obdulia Whitaker injured her back while performing duties related to her employment at the Wyndham Anatole Hotel (the "Anatole"), which is operated by Defendants HEPC Anatole, Inc. and Wyndham International, Inc. Whitaker worked as a "buffet line attendant," a position that required her to transport heavy containers. When Whitaker reported her injury, the Anatole sent her to see a doctor, who authorized her to return to work with some restrictions on activities. At her own initiative, Whitaker sought an opinion from another practitioner, who concluded that Whitaker would be unable to work for the month of June, 2002. Around this time, Whitaker filed a workers compensation claim. She returned to work on July 1, but continued to complain of pain. She sought treatment from a chiropractor, who informed the Anatole that Whitaker would not be able to work from September 9, 2002 until May 13, 2003 at the earliest. Whitaker took a personal leave of absence beginning September 9, 2002.
The Anatole terminated Whitaker on March 7, 2003, 180 days after she took her personal leave of absence. A letter informed her she was terminated due to a company policy "dictat[ing] a limit to the number of days an employee may be off work, for any reason." The Anatole now asserts that the limit under this policy is 180 days.
Whitaker brought suit in state court alleging retaliation for filing a workers' compensation claim and discrimination based on age and national origin. Defendants removed to this Court.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits presented, 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, 322-23 (1986). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must demonstrate the absence of any genuine issue of material fact, Celotex, 477 U.S. at 322-23, and the Court construes all evidence in favor of the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citation omitted).
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON ALL CLAIMS A. Defendants Are Entitled to Summary Judgment on Whitaker's Retaliation Claim
Section 451.001 of the Texas Labor Code prohibits an employer from discharging an employee for the good faith filing of a workers compensation claim. At the summary judgment stage, Texas and federal courts evaluate such claims under a burden shifting analysis derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See La Tier v. Compaq Computer Corp., 123 S.W.3d 557, 562-63 (Tex.App.-San Antonio 2003, no pet.) (citing M.D. Anderson v. Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000)); Piper v. Kimberly-Clark Corp., 970 F. Supp. 566, 574 (E.D. Tex. 1997). To the extent that Texas courts' interpretation of the McDonnell Douglas analysis diverges from federal precedent, this Court utilizes the federal procedure. See Snead v. Metropolitan Property Cas. Ins. Co., 237 F.3d 1080, 1090-1092 (9th Cir. 2001) (applying McDonnell Douglas burden shifting analysis to Oregon antidiscrimination law, where Oregon courts used different procedure).
Under the McDonnell Douglas scheme, the plaintiff has the initial burden to establish a causal link between the termination and the filing of a workers compensation claim. La Tier, 123 S.W.3d at 562. This entails showing that termination "would not have occurred when it did" had the plaintiff not filed a workers compensation claim. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1997). The plaintiff may make this showing by direct or circumstantial evidence. Id. at 451. If this burden is met, the burden shifts to the employer to rebut a presumption of discrimination by articulating a legitimate reason for the employee's termination. Id.; Rubinstein v. Administrators of Tulane Education Fund, 218 F.3d 392, 399 (5th Cir. 2000). This is a burden of production only. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993). If the employer produces evidence that would permit a factfinder to conclude that retaliation was not the cause of the employment action, the presumption raised by the prima facia case is rebutted and "drops from the case." Id. (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981)). From that point forward, the relevant burden is the plaintiff's burden to prove the elements of her case, see 509 U.S. at 507, 519, and the normal summary judgment standard applies. In order to survive the motion for summary judgment, the employee must produce evidence that the articulated reason is mere pretext for retaliation, such that a genuine issue of material fact exists as to the actual motive for termination. See Medina v. Ramsay Steel Co., 238 F.3d 674, 680 (5th Cir. 2001).
Defendants argue they are entitled to summary judgment on Whitaker's retaliation claim because they terminated Whitaker pursuant to a neutral absence control policy, and Whitaker has not met her burden to produce controverting evidence of retaliatory motive. Such a policy would indeed constitute a legitimate reason sufficient to meet Defendants' burden. See Swearington v. Owens-Corning Fiberglas, 968 F.2d 559, 564-65 (5th Cir. 1992); Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex. 1994); cf. Terry v. Southern Floral Co., 927 S.W.2d 254, 258 (Tex.App.-Houston [1st Dist.] 1996, no writ) (excessive absences after workplace injury constituted legitimate, nondiscriminatory reason for termination even without formal policy). Defendants present the following probative evidence that a policy exists: (1) HEPC Human Resources Director Michael Abela states in an affidavit that a "well-established . . . neutral absence control policy limits the length of any absence to 180 calendar days;" (2) Whitaker's termination letter indicated that "[c]ompany policy dictates a limit the number of days in employee may be off work;" (3) Whitaker was terminated after 180 days of leave. This evidence is sufficient to meet Defendants' burden of production.
The burden therefore shifts to Whitaker. In order to survive summary judgment, she must produce evidence creating a genuine issue of material fact as to the question, whether Defendants' stated reason for her termination was a mere pretext for retaliation. She argues that she shows retaliatory intent based on the following evidence: (1) It is undisputed that she missed work because of medical problems related to her workers compensation claim, and that her termination was related to her absence; (2) She claims that she never received notice of a 180 day limit on leaves of absence in the years she worked for the Anatole; (3) She recalls speaking with a fellow employee, whose name she does not remember, who at some point was injured and took a leave of absence for "about seven months;" (4) The Anatole expressed a negative attitude toward her injured condition.
This evidence does not create a genuine issue of material fact with regard to retaliation. The causal connection between Whitaker's injury and termination is undisputed, but immaterial. The Fifth Circuit and Texas Supreme Court have determined that it does not constitute retaliation to terminate an employee for excessive absences, even if the absences are related to an injury for which the worker sought workers compensation benefits. Swearington, 968 F.2d at 564-65. Carrozza, 876 S.W.2d at 313-14. Rather, reasonable absence control policies constitute an independent, legitimate reason for termination. The lack of notice to Whitaker is likewise immaterial. She lays no factual basis for inferring that she would have known about the policy if it existed, and she makes no argument that the Anatole had to notify her of the policy in order for the policy to constitute a legitimate reason for termination. Whitaker's assertion regarding the coworker who allegedly took a leave of more than 180 days is mere speculation. When asked in her deposition whether this person's leave "could have been less than six months," she responded "It could be. Who knows?" No other evidence supports her assertion that the Anatole applied its absence control policy inconsistently.
With regard to the Anatole's "negative attitude," much of Whitaker's purported evidence approaches frivolity. For example, she asks the Court to infer a retaliatory motive behind her termination from the fact that the Anatole sent her a "notice of compliance violation" at the time of her termination, and that the Anatole's medical insurance provider maintained ordinary medical records reflecting a doctor's assessment that Whitaker suffered from "psychosocial issues." The only plausible evidence of a negative attitude toward Whitaker's workers compensation filing is the allegation in her affidavit that, several months prior her termination, supervisor Jose Mateo made derogatory remarks to her with respect to her injury and claim. This does not support an inference of pretext, however, because there is no evidence or allegation that Mateo was involved in the decision to terminate Whitaker. See Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 187 (Tex.App.-Texarkana, no pet.) ("Remarks made by defendant may be sufficient evidence of discrimination if the comments are . . . (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue").
Defendants have articulated a legitimate, nonretaliatory reason for the Anatole terminating Whitaker it did, and Whitaker fails to raise a fact issue on whether that reason was pretextual. Accordingly, Defendants are entitled to summary judgment on Whitaker's retaliation claim.
B. Defendants Are Entitled to Summary Judgment on Whitaker's Age Discrimination Claim
To prevail on a claim under the Age Discrimination in Employment Act, a plaintiff must establish a prima facie case by showing (1) she was discharged; (2) she was qualified for the position; (3) she was within the protected class; (4) she was replaced by someone outside the protected class. West v. Nabors Drilling U.S.A., Inc., 330 F.3d 379, 384 (5th Cir. 2003). If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for termination, in accordance with the McDonnell Douglas framework. Id. at 385.
Whitaker's age discrimination claim fails because she was not qualified for the position. It is undisputed that, at the time Whitaker received her termination, she was on a leave of absence due to physical inability to perform the functions of a buffet line attendant. An employee who is physically unable to perform the essential duties of her position is not qualified for the position. Mason v. United Airlines, Inc., 274 F.3d 314, 318 (5th Cir. 2001). This is a fatal defect in Whitaker's age discrimination claim, and she fails to address the claim at all in her instant Response. Accordingly, Defendants are entitled to summary judgment on this claim.
C. Defendants Are Entitled to Summary Judgment on Whitaker's National Origin Discrimination Claim
Whitaker's two EEOC charges did not allege discrimination on the basis of national origin, and in her deposition Whitaker expressed no knowledge of such a claim. Her complaint, however, alleges discrimination on the basis of national origin under Texas and federal law. This claim is barred for failure to exhaust administrative remedies.
"[C]ourts do not have jurisdiction to consider claims brought under Title VII as to which an aggrieved party has not first exhausted her administrative remedies by filing a charge with the [EEOC]." Clemmer v. Enron Corp., 882 F. Supp. 606, 610 (S.D. Tex. 1995); see also Manning v. Chevron Chemical Co., LLC, 332 F.3d 874, 878 (5th Cir.), cert. denied, 540 U.S. 1107 (2004); 42 U.S.C. § 2000e-5(e). A corresponding rule applies to discrimination claims brought under the Texas Labor Code. See Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 141 (Tex.App.-Fort Worth 2000, pet. denied). Whitaker had 300 days from the time she became aware of any national origin discrimination to file such a charge, see Manning, 332 F.3d at 878, but she has not done so.
A Title VII cause of action may be based not only upon the specific allegations made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to those allegations, limited by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charge. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Whitaker, however, asserted only age and disability discrimination, and nothing in her EEOC charges suggest that national origin played any role in her employment relationship with the Anatole. Accordingly, one could not reasonably expect a claim for discrimination on the basis of national origin to grow out of her EEOC charge.
Because Whitaker's claim for discrimination based on national origin is barred, Defendants are entitled to judgment as a matter of law on that claim. Accordingly, Defendants are entitled to summary judgment on each of Whitaker's claims. The motion for summary judgment is therefore granted.