Summary
denying defendant's motion to strike a letter written by plaintiff to the EEOC and included in the group of attachments to plaintiff's affidavit, even though the letter itself was unsigned and unsworn, because "plaintiff has authenticated it through her affidavit."
Summary of this case from Wojciechowski v. Nat'l Oilwell Varco, L.P.Opinion
Civil Action No. SA-03-CA-0772 FB (NN).
May 31, 2005
I. Introduction
The matters before me are defendant's motion for summary judgment (Docket Entry 16), defendant's objections to exhibits attached to plaintiff's supplemented response to defendant's motion for summary judgment (docket entry 55) and plaintiff's counter-motion to strike defendant's summary judgment evidence (docket entry 61). I have jurisdiction over this matter under 28 U.S.C. § 636(c). The parties have consented to proceed before a magistrate judge for all matters in this case, including trial and entry of judgment.
See Docket Entries 12, 15, 17.
II. Statement of the Case
Plaintiff Sylvia Wong began working for defendant SBC Smart Yellow Pages on March 31, 1989, as a Sales Representative. On February 28, 2001, plaintiff was promoted to an Account Representative or outside sales position. The parties dispute whether the promotion made plaintiff susceptible to a two year probationary period in her new position. In the summer and fall of 2002, plaintiff was allegedly counseled regarding her poor customer service and her low sales numbers. After plaintiff allegedly failed to improve, she was demoted to telephone sales. Plaintiff is still employed by defendant.In July 2003, plaintiff filed her original petition in the 285th Judicial District, Bexar County, Texas, seeking relief against defendants John Albin, Alex Mylonas and SBC Smart Yellow Pages under Title VII of the Civil Rights Act, the Equal Pay Act of 1963, the Civil Rights Act of 1991, and the Age Discrimination in Employment Act (ADEA).
42 U.S.C. § 2000e, et seq.
29 U.S.C. § 621, et seq.
Shortly after all the defendants removed this action to federal court, the individual defendants, John Albin and Alex Mylonas, filed a motion to dismiss all causes of action pled against them. Because plaintiff failed to state any claim upon which relief could be granted against the individual defendants, their motion to dismiss was granted and all claims against them were dismissed.
Docket Entry 1.
Docket Entry 5.
Docket Entries 8, 13.
SBC Smart Yellow Pages, the only remaining defendant in this action, filed its motion for summary judgment on December 5, 2003. During a status conference on July 13, 2004, defendant SBC ("defendant" or "SBC") withdrew its motion for summary judgment subject to re-urging at a later date. Defendant re-urged its motion on October 15, 2004.
Docket Entry 16.
See Docket Entry 39.
Docket Entry 49.
In the motion, defendant asserts that summary judgment is appropriate as to all the claims contained in plaintiff's complaint. Plaintiff's complaint asserts that defendant treated plaintiff differently, and worse, in the terms and conditions of her employment on the basis of plaintiff's national origin and sex. The complaint further alleges that defendant's discrimination and retaliation culminated in plaintiff's wrongful demotion.
III. Applicable Legal Standards
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Rule 56 provides in pertinent part:
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).
Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute concerning 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson, 477 U.S. at 248; 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.
Importantly, the non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant 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 non-movant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to his or her case on which he or she bears the burden of proof at trial. 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.
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.
See Fields, 922 F.2d at 1187.
IV. Analysis
There are several motions pending before the court. The first set of motions are the objections to and motions to strike certain evidence in the record brought by defendant (docket entry 55) and plaintiff (docket entry 61). The next motion is defendant's motion for summary judgment (docket entry 16).A. Are the objections to, and motions to strike, certain summary judgment evidence meritorious?
1. Defendant's objections to plaintiff's summary judgment evidence
In its "objections to exhibits attached to plaintiff's supplemented response to defendant's motion for summary judgment (docket entry 55)," defendant objects to the following evidence submitted by plaintiff in support of her opposition to the motion for summary judgment: (1) the affidavit of James Hall; (2) paragraphs 5, 6-7, 11-12, 16, 21, 24 and 27 of plaintiff's first affidavit; (3) paragraphs 1, 2, 5, 6, and 14-16 of plaintiff's second affidavit; (4) the unsigned, unsworn letter plaintiff sent in support of her charge of discrimination; and (5) a letter from Tina Watson included among plaintiff's exhibits.
Docket Entry 55.
a. The affidavit of James Hall
Defendant asserts that the affidavit of James Hall should be stricken on the basis that plaintiff failed to timely disclose Mr. Hall as a witness. Defendant argues, in pertinent part:
Because Plaintiff never identified Mr. Hall as a witness or person with knowledge during the discovery period, she should not be permitted to rely on his testimony in support of her response to Defendant's Motion for Summary Judgment.
Docket Entry 55.
In response and opposition to defendant's objection to Mr. Hall's affidavit, plaintiff contends that defendant knew or reasonably should have known of plaintiff's intention to rely on Mr. Hall's testimony as:
SBC was made keenly aware of this as reflected by her identification and reference to Mr. Hall as a witness who had been solicited for a complaint against Ms. Wong by Mr. Mylonas in her original Summary Judgment Response — which was filed on or about January 28, 2004.
Docket Entry 61, at 2.
Importantly, plaintiff offers no explanation in her response to defendant's motion for her failure to designate timely Mr. Hall as a witness or to file initial disclosures. Plaintiff should have designated Mr. Hall as a witness. Consequently, I have the authority to strike Mr. Hall's affidavit and sustain defendant's objections.
See Docket Entry 61. Plaintiff has asserted in her motion for leave to file initial disclosures, however, that the initial disclosures timely prepared by her counsel were "not filed by an employee who has since been separated from the firm." Docket Entry 60, at 1.
Defendant, however, has failed to establish that it was prejudiced by plaintiff's poor disclosure practices. While defendant is correct that plaintiff should have submitted initial disclosures identifying, inter alia, Mr. Hall, defendant cannot prove that it was prejudiced by plaintiff's failure to do so. For these reasons, defendant's motion to strike the affidavit of James Hall is hereby DENIED.
b. Paragraphs 5, 6-7, 11-12, 16, 21, 24 and 27 of plaintiff's first affidavit
Defendant next moves to strike paragraphs 5, 6-7, 11-12, 16, 21, 24 and 27 of plaintiff's first affidavit. First, plaintiff moves to strike paragraph 5 of plaintiff's affidavit — in which plaintiff recounts a conversation she had with Mr. Hall — on the basis that said testimony is hearsay. As plaintiff is attempting to introduce the testimony of an out of court declarant (i.e., Mr. Hall) for the truth of the matter asserted, such testimony is hearsay. Therefore, defendant's objections to and motion to strike paragraph 5 of plaintiff's first affidavit is hereby GRANTED.
Defendant next objects to and moves to strike paragraphs 6 and 7 of plaintiff's first affidavit. In those paragraphs, plaintiff testifies that she was required to bring her bad debt but was not allowed to bring her top clients with her when she was promoted. Defendant objects to this evidence on the basis that plaintiff clarified in her deposition "that this policy applied to everyone in her training class." Defendant's objection is aimed at the weight and not the admissibility of the evidence. For this reason, defendant's objection to and motion to strike paragraphs 6-7 of plaintiff's first affidavit is DENIED.
Docket Entry 55, at 2. See also Docket Entry 26, Exhibit A, ¶¶ 6-7.
Defendant then objects to and moves to strike portions of paragraphs 11-12, 16, 21, 24 and 27 in plaintiff's first affidavit on the basis that plaintiff failed to establish that she had personal knowledge of the matters asserted therein and/or that certain of the statements were based on hearsay. At the beginning of her affidavit, plaintiff attested that she had personal knowledge of the facts stated therein. The fact that plaintiff failed to fully articulate the basis for her personal knowledge in paragraphs 11-12, 16, 21, 24 and 27 will go to the weight of that evidence. Since said evidence is not clearly hearsay nor clearly without foundation, however, it will be admitted. Consequently, defendant's objections to and motion to strike paragraphs 11-12, 16, 21, 24 and 27 of plaintiff's first affidavit will be DENIED.
Docket Entry 55, at 2-3.
Docket Entry 26, Exhibit A, at ¶ 1.
c. Paragraphs 1, 2, 5, 6 and 14-16 of plaintiff's second affidavit
Defendant has also objected to and moved to strike paragraphs 1, 2, 5, 6 and 14-16 in plaintiff's second affidavit. Defendant moved to strike paragraphs 1 and 2 of plaintiff's second affidavit on the basis that they "refer to statements [plaintiff] claims were made by an unnamed intake officer and investigator at the EEOC and as such constitute inadmissible hearsay evidence." As paragraphs 1 and 2 of plaintiff's second affidavit discuss what plaintiff was told by an unnamed intake officer, they are hearsay. Consequently, defendant's motion to strike paragraphs 1 and 2 of plaintiff's second affidavit is hereby GRANTED.
Docket Entry 55, at 3.
Similarly, defendant objected to and moved to strike paragraph 6 of plaintiff's second affidavit on the basis that said paragraph "refers to statements made by Mr. James A. Hall . . . and as such constitute inadmissible hearsay." Since paragraph 6 details what Mr. Hall allegedly told plaintiff, and is offered for the truth of the matters asserted therein, it is hearsay. Defendant's objections to and motion to strike paragraph 6 are hereby GRANTED.
Docket Entry 55, at 3.
Defendant has also objected to and moved to strike paragraphs 5 and 14-16 on the basis that plaintiff failed to provide an adequate foundation for the statements asserted therein and, therefore, the statements are presumably hearsay or based on hearsay. As indicated above on certain of defendant's other objections, the fact that plaintiff failed to articulate properly the basis for her understanding of matters presumably outside of her personal knowledge — such as those expressed in paragraphs 5 and 14-16 — will go to the weight and not the admissibility of the evidence. For this reason, defendant's objections to and motion to strike paragraphs 5 and 14-16 of plaintiff's second affidavit are hereby DENIED.
d. Plaintiff's letter to the EEOC
Defendant further objects and moves to strike a letter apparently written by plaintiff to the EEOC and included in the group of attachments designated as Attachment 1 to plaintiff's second affidavit. Defendant argues that the "unsigned unsworn ( sic) letter" constitutes "inadmissible hearsay." While defendant is correct that the letter is unsigned, plaintiff has authenticated it through her affidavit. Defendant's concerns that the letter is both unsigned and unsworn will be taken to the weight and not the admissibility of the evidence. Since defendant has failed to establish that plaintiff's letter to the EEOC is hearsay, its objection to and motion to strike the letter are hereby DENIED.
See Docket Entry 51, Attachment A.
Docket Entry 55, at 3.
See Docket Entry 51, Attachment A, ¶¶ 1, 2.
e. Tina Watson letter
Finally, defendant objects to and moves to strike "a letter from Tina Watson and a notarized signature of Tina Watson on a separate nonconsecutively bates-numbered page." Defendant argues:
To the extent this could be treated as an affidavit, it is ineffective as Ms. Watson does not state that she has personal knowledge of the facts contained in her letter. Indeed, the letter concludes ( sic) various statements alleging discrimination against other employees, mostly unnamed, an unnamed employee's fear of retaliation ( sic). The mere fact that these documents are part of the EEOC file does not make them admissible. The documents are double hearsay and replete with conclusory hearsay statements lacking any foundation or personal knowledge. Accordingly, the documents themselves are inadmissible hearsay and contain several hearsay statements which would require independent exception from the hearsay rule in order to be admissible.
Docket Entry 55, at 3.
Docket Entry 55, at 4.
In opposition to defendant's objections and motion to strike, plaintiff contends:
Among the documents/statements ( sic) that SBC seeks to have stricken is the candid, personal affidavit statement offered to the EEOC by Tina Watson. Ms. Watson had direct personal knowledge of Mr. Mylonas' discriminatory and retaliatory actions toward her and other Hispanic females, and as such her affidavit statements are material, relevant and admissible.
Docket Entry 61, at 6.
The letter from Tina Watson to the EEOC bears the heading "RE: Sylvia Wong" and appears to be an attempt by Ms. Watson to corroborate Ms. Wong's statements that Mr. Mylonas helped certain of his subordinates while disadvantaging others. The letter is not notarized and is bates stamped "3487." The page following Ms. Watson's undated letter contains a signature line signed by Ms. Watson, as well as the stamp and signature of a notary. This page is bates stamped "3465." In her affidavit, plaintiff attempts to authenticate this document by stating: "Ms. Tina Watson submitted an affidavit to the Commission on my behalf, that further attests to Mylonas' discriminatory treatment of Hispanic females."
Docket Entry 51, at 3.
Federal Rule of Civil Procedure 56(e) sets forth the requisite form of an affidavit:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
The alleged "affidavit" of Tina Watson does not meet the requirements of an affidavit as set forth in Rule 56(e). The affidavit itself is not notarized and contains no statement that it was based on personal knowledge. For this reason, Ms. Watson's statement is not competent summary judgment evidence. Consequently, defendant's objection to and motion to strike Ms. Watson's letter is hereby GRANTED.
b. Plaintiff's counter-motion to strike
Plaintiff moves to strike "all of the affidavit evidence and supporting evidence incorporated in SBC's Motion for Summary Judgment, which alludes to complaints by customers whom have ( sic) not been identified in its Initial Disclosures." Plaintiff brings her counter-motion to strike only in the event that the court grants defendant's motion to strike the affidavit of James Hall. Because defendant's objections to Mr. Hall's affidavit have been overruled, plaintiff's conditional objection to the customer complaints is without merit. For this reason, plaintiff's counter-motion to strike is hereby DENIED.
Docket Entry 61, at 7. See also Docket Entry 65.
See Docket Entry 61.
B. Is defendant SBC Smart Yellow Pages entitled to summary judgment?
In its motion for summary judgment, defendant SBC Smart Yellow Pages contends that it is entitled to summary judgment on all the claims brought against it, namely causes of action under the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), and Title VII of the Civil Rights Act of 1964.
a. Plaintiff's causes of action under the Equal Pay Act and the ADEA
Defendant has argued that summary judgment is appropriate as to, inter alia, plaintiff's causes of action under the Equal Pay Act and the Age Discrimination in Employment Act. In her initial response to defendant's motion for summary judgment, plaintiff stated that she "waives and abandons her cornucopia of well intended claims, while maintaining her national origin/sex discrimination claim . . ." Plaintiff's statements constitute a withdrawal of her claims under the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act. Therefore, defendant's motion for summary judgment will be GRANTED as to those claims.
See Docket Entry 16.
Docket Entry 26, at 2.
b. Plaintiff's causes of action under Title VII of the Civil Rights Act of 1964
Defendant argues that summary judgment as to plaintiff's cause of action for sex and national origin discrimination fails as a matter of law for the following reasons: (1) plaintiff failed to include allegations of sex discrimination in the charge she filed with the Equal Employment Opportunity Commission (EEOC) and is, therefore, prohibited from pursuing a sex-based claim; (2) plaintiff can neither establish a prima facie case of discrimination or retaliation, nor can she meet her burden of establishing that defendant's reasons for demoting her were merely pretextual. For these reasons, defendant contends that summary judgment is appropriate.
a. Is plaintiff precluded from asserting sex-based discrimination or retaliation?
Defendant's first argument in support of its motion for summary judgment is that plaintiff failed to allege sex-based discrimination or retaliation in the charge she filed with the Equal Employment Opportunity Commission. Because plaintiff failed to exhaust her administrative remedies as to any sex-based claims, defendant further contends that plaintiff is precluded from asserting a sex-based discrimination or retaliation cause of action as a matter of law. In opposition, plaintiff argues that her claims for dual-protected status discrimination and retaliation, i.e. that the wrongful adverse employment action (demotion) was taken against her because of her status as an Hispanic female, reasonably arise from the charge she filed with the EEOC. The charge averred wrongful demotion solely on account of plaintiff's national origin — Hispanic.
See Docket Entry 16, 57.
Docket Entries 26, 51, 53.
In order to bring a cause of action under Title VII, a plaintiff must first satisfy two prerequisites:
There are two requirements for filing a Title VII action in federal court: 1) the complaint must be filed within the time allotted by Title VII, and 2) the complainant must first have exhausted her administrative remedies. Failure to comply with either of these requirements wholly deprives the district court of jurisdiction over the case; it is the well-settled law of this circuit that each requirement is a prerequisite to federal subject matter jurisdiction. See, e.g. . . . Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) (`The exhaustion requirement . . . is an absolute prerequisite to suit' under § 2000e-16).
Tolbert v. US, 916 F.2d 245, 247-248 (5th Cir. 1990).
The first step in exhausting one's administrative remedies is the filing of a charge with the Equal Employment Opportunity Commission. When assessing the sufficiency of a charge, the Fifth Circuit has made it clear that mere procedural technicalities should not bar a plaintiff's claim given the "remedial and humanitarian underpinnings of Title VII . . ." In cases in which a plaintiff checked the box for sex discrimination, as opposed to both the boxes for sex and national origin discrimination, for example, the Court held that the plaintiff's "failure to check the box labeled `national origin' was a mere `technical defect or omission . . .'" The Court further explained:
See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970): "the filing of a charge of discrimination with the EEOC is a condition precedent to the bringing of a civil action under Title VII."
Id. , at 460.
Id, at 462.
`This law is a remedial one, and the Congressional purpose would not be furthered by making plaintiffs of the kind with which we are concerned, members of the working class who are generally without substantial higher education, dot every `i' and cross every `t' on their way to the courthouse.' Antonopulos v. Aerojet-General Corp., E.D. Ca. 1968, 295 F. Supp. 1390, 1395. . . . we decline to hold that the failure to place a check mark in the correct box is a fatal error. In the context of Title VII, no one — not even the unschooled — should be boxed out.
Id. , at 463.
Thus, the rule as to the scope of an EEOC charge forming the basis for a judicial complaint is that:
the `scope' of the judicial complaint is limited to the `scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.
Id. , at 466.
In interpreting the Sanchez rule, the Fifth Circuit has assessed the scope of various charges according to the totality of the circumstances in the case. For example, in one case, the Fifth Circuit declined to extend the scope of a gender-based discrimination charge to include race discrimination when the initial charge mentioned only gender discrimination and the plaintiff moved to amend her complaint on the fifth day of a six day trial. In reversing the district court's ruling extending the scope of the charge, the Fifth Circuit held:
Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000).
After carefully reviewing the chronology of events and the facts in this case, we conclude that the district court's ruling that Thomas's ( sic) later asserted race claim was necessarily encompassed in her gender claim on housing, is unsupported by the exhibits and testimony in the record.
Id.
Similarly, in several unpublished and/or slip opinions, the Fifth Circuit has found that the following claims exceeded the scope of the charge and could not, therefore, be pursued: (1) a hostile work environment claim when the charge alleged only a discharge/demotion; (2) a constructive discharge claim that was neither included in the charge nor raised during the administrative process; and (3) claims for sex and age discrimination when the EEOC charges alleged only retaliation, race discrimination and disability discrimination.
O'Brien v. Lucas Associates Personnel, Inc., No. 04-10738, 2005 WL 768773 (5th Cir. Apr. 5, 2005).
Clayton v. Rumsfeld, No. 03-51167, 2204 WL 1739465 (5th Cir. Aug. 4, 2004). Notably, in Clayton, the Fifth Circuit explicitly distinguished those facts with the Sanchez case, holding:
Clayton's case is distinguishable from Sanchez, on which she relies. There, we held that failure to check the appropriate box indicating the reason for the claim of discrimination on the EEOC charge form, and failure to use the exact words in harmony with earlier charges, were technical niceties that would not prevent a plaintiff from bringing a civil action. Sanchez, 431 F.2d at 464. By way of contrast, Clayton's claims of demotion and constructive discharge did not reflect the essence of the other charges. Clayton, 2004 WL 1739465, at * 4.
Anderson v. City of Dallas, No. 03-11229, 2004 WL 2428638 (5th Cir. Oct. 28, 2004).
In contrast, the Fifth Circuit allowed a constructive discharge claim to proceed — even though not delineated in the EEOC charge — because it was premised on the same facts alleged in the discrimination charge. The Court held:
Harris v. Parker College of Chiropractic, 286 F.3d 790 (5th Cir. 2002).
Parker argues that Harris and Kiger-Nogy could not assert constructive discharge in their legal complaint because they did not raise it in their original EEOC charge. However, no authority supports this proposition. In this circuit, a claimant is not required to assert all legal claims in the EEOC charge; rather, it is sufficient if in the EEOC charge the claimant asserts the facts that are the basis for the legal claims. . . . In the present case, the claims for constructive discharge were premised on the same facts as the claims for discrimination in employment, which were described in the EEOC complaint.
Id. , 286 F.3d, at 795.
In the instant case, plaintiff's claim for dual-status discrimination (Hispanic female) falls within the scope of her charge of discrimination based on national origin (Hispanic). Plaintiff submitted some evidence to the EEOC that she was discriminated against not only because she was Hispanic but because she was an Hispanic woman. And plaintiff has asserted, from the beginning of this action which she filed pro se, that she was treated differently, and worse, in the terms and conditions of her employment because she was an Hispanic woman. Thus, the claim for dual status discrimination is premised on the same facts as the claim for national origin discrimination. Stated another way, plaintiff's claim for dual status discrimination could reasonably have grown out of the EEOC investigation on plaintiff's charge of national origin discrimination. For all these reasons, I find that plaintiff may bring her cause of action for dual status discrimination (wrongful demotion). Defendant's motion for summary judgment is hereby DENIED as to plaintiff's claim for gender-based discrimination.
See Docket Entry 51, Attachment 1: Plaintiff's letter to the EEOC and Charge Questionnaire.
See Docket Entry 1, ¶ 4, at 2.
See Sanchez, 431 F.2d, at 466.
b. Has plaintiff met her burden of proving the requisite elements of her Title VII cause of action ?
In addition to asserting that plaintiff failed to state a sex-based claim for discrimination or retaliation, defendant has further argued that plaintiff has failed to establish the requisite elements of her Title VII cause of action as a matter of law. Specifically, defendant has asserted that plaintiff can prove neither her prima facie case of discrimination nor that defendant's purported reason for the demotion was a mere pre-text for discrimination.
See Docket Entries 16, 57.
Actions for employment discrimination, such as wrongful demotion, are subjected to a burden shifting framework. First, the employee alleging the discrimination or retaliation bears the burden of proving a prima facie case of discrimination. If she does so, the burden then shifts to the employer to establish a legitimate reason for the adverse employment action. When the employer proves a lawful, non-discriminatory reason for the ultimate employment action, the burden then shifts back to the plaintiff-employee to show that the alleged non-discriminatory reason was a mere pretext for unlawful conduct. Thus, to bring properly a cause of action for employment discrimination, harassment or retaliation on the basis of race, sex, religion, national origin, or prior protected activity, the alleged victim must first establish a prima facie case of discrimination, harassment or retaliation.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Reeves v. Sanderson Plumbing Products, Inc., 520 U.S. 133 (2000).
A prima facie case of discrimination on the basis of national origin and/or sex requires the alleged victim to establish:
(1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated.
Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
In this case, plaintiff has established her prima facie case when all doubts are resolved in her favor. Plaintiff has easily met the first and third prongs — that she was a member of a protected class of persons (Hispanic females) and that she suffered an adverse employment action (demotion). Moreover, plaintiff has submitted evidence that her sales numbers were calculated differently, and to her disadvantage, than those of other non-Hispanic female employees such that plaintiff was, in fact, qualified for the position she lost. Plaintiff further proffered evidence, in the form of her own affidavit, that other outside sales representatives who were not members of plaintiff's protected class were "allowed to maintain their positions despite sales figures far short of [plaintiff's]." Thus, plaintiff has satisfied all four requisite elements of her prima facie case.
See Docket Entry 51, Tab 1, ¶ 1.
Id. , at ¶ 10.
See Docket Entry 51, Exhibit 1, ¶ 10, Plaintiff's Affidavit, in which plaintiff explains that her sales numbers for the outside sales position were only calculated based on her second year as opposed to the cumulative total of both her first and second years. In contrast, other employees' sales numbers were allegedly calculated on the cumulative total of the first and second years. Moreover, plaintiff has submitted the testimony of John Albin, who testified that the sales averages are supposed to be calculated by combining both the first and second years. Docket Entry 51, Exhibit 2, at 138-139. See also Docket Entry 51, Exhibit 1, ¶ 11, wherein plaintiff states that she and four other Hispanic employees were demoted even though all of the office averages were low. And See Docket Entry 51, Exhibit 2, Deposition testimony of John Albin, in which Mr. Albin testified that plaintiff was assigned to a book that was dramatically, negatively impacted by the aftermath of September 11th.
Docket Entry 51, Exhibit 1, ¶ 17.
Defendant has also met its burden of establishing a lawful, non-discriminatory reason for the ultimate employment action (demotion). Defendant has submitted evidence that plaintiff's cumulative sales numbers for 2001 and 2002 were far below the office average for that time period and that plaintiff was counseled regarding the same. In addition, defendant has proffered evidence that plaintiff had at least seventeen (17) customer complaints filed against her from July 2001 to July 2002.
Docket Entry 57, Exhibit 1, ¶ 7; Exhibit 2. Defendant submitted a document that plaintiff's sales average was 0.92 when the office average was 5.25 and the goal average was 7.7. Docket Entry 57, Exhibit 2. See also Docket Entry 16, Exhibit 1, Attachments A, B. In addition, defendant proffered evidence that plaintiff failed to meet the office averages in May 2002, June 2002, and July 2002. Docket Entry 57, Exhibit 4.
Docket Entry 16, Exhibit C; Docket Entry 57, Exhibit 8.
Although plaintiff has attempted to submit some evidence that the complaints against her were solicited, her evidence is unavailing. Plaintiff stated in her affidavit that her manager, Alex Mylonas, requested that customers author bad reports about plaintiff and that said customers were rewarded with discounted advertising for providing the same. However, plaintiff has not established that any discounts were given as compensation for false reports as opposed to customer service compensation for bad service provided to those customers by plaintiff. While plaintiff submitted the affidavit of James Hall as proof that customers were requested to provide, and compensated for providing, bad reports on plaintiff, Mr. Hall's affidavit does not prove the same. Rather, Mr. Hall's affidavit establishes that he was contacted to make certain that a particular remark made by plaintiff was not offensive. In the context of the number of customer complaints made against plaintiff, it was not unreasonable for the company to make certain Mr. Hall was satisfied with his service.
See Docket Entry 51, Exhibit 1, ¶¶ 5-6. Notably, Mr. Mylonas stated in his affidavit that he never solicited complaints against plaintiff and never provided special benefits to customers in exchange for filing a complaint against plaintiff. See Docket Entry 57, Exhibit 1, ¶¶ 2, 4.
See Docket Entry 51, Exhibit 3.
While defendant has met its burden of production as to its legitimate business reason for terminating plaintiff — her poor sales and significant number of customer complaints — plaintiff has also raised a genuine issue of material fact as to whether this business reason was pre-textual for many of the reasons discussed above. Specifically, there is some evidence that plaintiff's poor sales numbers were derived by manipulating the manner of calculating the same in order to discriminate against plaintiff on the basis of her status as an Hispanic female. Similarly, there is evidence that there were several employees in 2002 who did not meet the sales objectives but were not demoted or terminated.
Docket Entry 57, Exhibit 5.
There is not a large quantity of evidence to support plaintiff's allegations. However, the Fifth Circuit has made it clear that summary judgment is strongly disfavored in Title VII actions. Because plaintiff has just enough evidence that her demotion may have been the result of discriminatory animus, defendant is not entitled to summary judgment on plaintiff's Title VII cause of action.
See Fierros v. Texas Dept. of Health, 274 F.3d 187, 190 (5th Cir. 2001), wherein the Fifth Circuit explains that, in general, summary judgment "`is not favored in claims of employment discrimination (internal citations omitted).'"
V. Conclusion
For all the foregoing reasons, defendant's objections to exhibits attached to plaintiff's supplemented response to defendant's motion for summary judgment (docket entry 55) are GRANTED, in part, and DENIED, in part as set forth above. Plaintiff's counter-motion to strike (docket entry 61) is DENIED. Furthermore, defendant's motion for summary judgement (docket entry 16) is GRANTED as to plaintiff's causes of action under the ADEA and the Equal Pay Act, and DENIED as to plaintiff's cause of action under Title VII of the Civil Rights Act.
It is SO ORDERED.