Huske v. Tyson Foods, Inc.

Filing 42

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 18 MOTION for Summary Judgment and Brief in Support filed by Tyson Foods, Inc... Signed by Magistrate Judge Don D. Bush on 10/29/2013. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RITA HUSKE
Plaintiff,
VS.
TYSON FOODS, INC.
Defendant.

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Case No. 4:12cv583

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Now before the Court are Defendant Tyson Foods, Inc.’s Motion for Summary Judgment
(Dkt. 18) and Defendant’s Motion to Strike and Objections to Plaintiff’s Summary Judgment
Evidence (Dkt. 27). As set forth below Defendant’s objections to Plaintiff’s summary judgment
evidence are overruled and the Motion to Strike Summary Judgment Evidence (Dkt. 27) is DENIED.
Further, because the Court finds that there are genuine issues of material fact, that Defendant’s
Motion for Summary Judgment (Dkt. 18) should be DENIED and that a jury should hear the case.
FACTUAL BACKGROUND
Most of the background to this case is not in dispute. Ms. Huske was a long time employee
of Tyson’s, who was employed at a number of locations and ultimately relocating to Sherman as a
Complex Human Resources Manager. It is her position that, after an unsuccessful union campaign
by hourly maintenance employees, she was removed from her position. She claims that she was told
that she “did not know how to work the gray area.” She claims that she was effectively discharged.

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Tyson claims that she was not discharged but was given the opportunity to work elsewhere
and was even given three months to find a roosting place at another facility. Huske’s background
was pork, while much of Tyson’s business is poultry.
On July 22, 2013, Defendant filed a motion for summary judgment, arguing that the
undisputed material facts establish that there is no genuine issue as to any material fact and that
Plaintiff’s claims of age and gender discrimination fail as a matter of law. On August 15, 2013,
Plaintiff filed her response in opposition.
STANDARD
“Summary judgment is appropriate if the moving party can show that ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” United
States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting FED. R. CIV. P. 56(a)).
When considering a motion for summary judgment, a court “must view all facts and evidence in the
light most favorable to the non-moving party.” Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d
431, 433 (5th Cir. 2013).
DEFENDANT’S OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE
Defendant has objected to the Court’s consideration of Plaintiff’s Exhibits G, H, I, J, K, L,
and O, as well as portions of Plaintiff’s declaration. The objections are overruled. The Court finds
that the contents of the declaration are based on personal knowledge and has considered those
portions of the declaration that are relevant to the analysis here.

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Defendant also seeks to strike Exhibits G, H, I, J, K, L, and O, arguing that they are
unauthenticated and they are hearsay. Exhibits G, H, I, J, K and L to Plaintiff’s response were
produced by Tyson. Exhibit O is a press release authored by Defendant. Arguably they could
qualify as business records of Tyson if Tyson regularly maintains these type of records. And, as
Plaintiff’s counsel points out, Exhibits G, H, I and J were produced by the Commission as records
of that Commission. The Court believes Tyson’s objections notwithstanding that these documents
either do not constitute hearsay or would be admissible under Federal Rules of Evidence 803(8) or
807. Therefore, the Court has considered them.
ANALYSIS
Defendant seeks summary judgment as to Plaintiff’s claims of age and gender discrimination.
Under the McDonnell Douglas test, a Title VII plaintiff alleging gender discrimination must show
(1) that she is a member of a protected class; (2) that she was qualified for the position sought; (3)
that she was subject to an adverse employment action; and (4) that she was replaced by someone
outside her protected class or was treated less favorably than other similarly situated employees
outside her class. Fahim v. Marriott Hotel Servs., 551 F.3d 344, 350 (5th Cir. 2008) (citations
omitted). Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (“Adverse employment
actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.”). If the
plaintiff can present a prima facie case, the burden shifts to the defendant to rebut the plaintiff’s case
by demonstrating a “legitimate, non discriminatory justification for its actions.” Price v. Fed.
Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). If the defendant offers such a justification, the

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burden shifts back to the plaintiff, who can attempt to show that the defendant’s proffered reason is
simply a pretext for discrimination. Id.

For age discrimination, a plaintiff must show she was within the protected class; qualified
for her position, suffered an adverse employment decision and replaced by someone younger or
treated less favorably than similarly situated younger employees. See Smith v. City of Jackson, Miss.,
351 F.3d 183,196 (5th Cir. 2003). “Because the ADEA prohibits discrimination on the basis of age
and not class membership, the fact that a replacement is substantially younger than the plaintiff is
a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by
someone outside the protected class.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313,
116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). The Supreme Court has held that, in the context of age
discrimination, a plaintiff must show that age was the reason the employer decided to act. Gross v.
FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S Ct. 2343, 2350, 174 L.Ed.2d 119 (2009).
Having reviewed the record here, the Court finds that Plaintiff, a 50 year-old woman, has
proffered sufficient summary judgment evidence to create a fact issue as to a prima facie case for
sex and age discrimination. There is no dispute that Plaintiff was qualified for her job or that she
is a member of a protective class. Further, the summary judgment record contains evidence showing
Plaintiff suffered an adverse employment action – she was removed from her position and was not
offered another position after applying for three of the five for which she was eligible. All of those
alternative positions were for less pay. And there is evidence that Plaintiff was replaced by a

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younger male. She has pointed to sufficient facts to establish a prima facie case of discrimination
to survive summary judgment.
The question now is whether Defendant has stated a legitimate reason for termination or
whether it is just a pretext for discrimination. According to the affidavit of Tyson VP Dan Serrano
submitted by Tyson in support of its motion, Ms. Huske was asked to leave the plant by Eloy Barajas
who was the Human Resource Director over the Sherman plant. Serrano was a member of the union
avoidance team. According to Serrano, Ms. Huske was not a team player in that team members
complained about Ms. Huske’s lack of respect for the team. Serrano claims that, because of Ms.
Huske, plant personnel wanted a union. Serrano states that he and another individual decided that
Ms. Huske should be removed from the plant due to complaints received during the campaign and
should be allowed to apply for other positions at other plants. Serrano says that Huske’s departure
was shown as a layoff because she failed to pursue other work within the company and Tyson wanted
her to collect unemployment while she looked elsewhere for work.
Further, according to the deposition of Mike Gerleman, Huske was let go because for her
“everything was black and white” and her superiors wanted someone who could operate in the
“gray.” Her superiors claimed she was too blunt. She didn’t smile enough. In other words, she
ruffled too many feathers in her job. There is sufficient summary judgment evidence to create a fact
issue regarding a legitimate reason for Plaintiff’s termination.
Nonetheless, the summary judgment evidence also demonstrates that Defendant’s reasons
for Plaintiff’s “separation” from Tyson were inconsistent and create a fact issue as to their pretextual

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nature. For example, although Defendant relies on the union campaign as a reason for termination,
Huske’s immediate supervisor received a write up and reduction in his bonus as a result of the union
campaign but appears to still be working at the plant. Plaintiff claims that when Serrano came down
for the initial union campaign, he said they were gearing up for the “big event.” When Huske
inquired what the big event was, she was told it was “something like firing Rita (Huske).”
Plaintiff’s immediate supervisor also acknowledged that Plaintiff had never received a
written reprimand due to work related issues. Indeed, Barajas’s deposition was taken, but he could
not identify specific incidents where Huske was unprofessional. About the only seed he could throw
was that Huske was rude, but he could not identify any instance where she was in fact
unprofessional.
Barajas testified that she was permanently laid off. He contends that she was laid off for her
behavior. And yet, he acknowledges that Huske had a pretty good work record for her twenty nine
years of work.
Further, at the time Plaintiff was told she was being terminated, Barajas told her that she had
three months to identify another position in the company. Although there were other positions
available at different plants, Huske only applied for two positions and ultimately withdrew her name
from consideration as to one of the positions. Huske says to take the position would have been a
reduction in pay and Tyson would not pay relocation expenses.
Exhibit F to Plaintiff’s summary judgment response, Tyson’s “Separation Notification Form”
for Huske, contradicts Defendant’s position as to the circumstances of the end of Plaintiff’s time at

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Tyson. See Dkt. 22-7. The company document notes that Huske’s termination was involuntary and
attributed to a permanent layoff. There is absolutely no other reason given for her termination on
the form. In box 21, Tyson could have stated that she just couldn’t operate in the gray area, she
didn’t smile enough, she was just too blunt, or she “ruffled too many feathers.” Tyson could have
also put this in the Comments section of the form, but that portion of the form is blank and no
additional reason for her “separation” is given. The absence of additional reasons or information
demonstrates the fact issue as to pretext here.
The Court finds that Plaintiff’s right to jury trial should be preserved and that a jury from the
community should determine whether there is an actionable claim. Plaintiff has pointed out
sufficient fact issues to defeat summary judgment.
There were multiple reasons given for Plaintiff’s termination.

According to the record

before the Court, at one point, Tyson took the position that Plaintiff was not terminated. Then, one
of Huske’s managers stated that he did not know why she was terminated. Her immediate supervisor
only received a reprimand for botching the unionization effort. Huske was either laid off,
terminated, temporarily laid off, reassigned, demoted, or offered a lower paying position for her role
in the effort. The record presents a sufficient fact issue to proceed to trial.
RECOMMENDATION
The Court recommends that Defendant Tyson Foods, Inc. files this Motion for Summary
Judgment (Dkt. 18) be DENIED.

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Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days after service shall bar an aggrieved party from de novo review by
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the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).
SIGNED this 29th day of October, 2013.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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