Persiano v. T-Mobile USA, Inc.

Filing 77

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendant T-Mobile USA Inc.s Motion for Summary Judgment 24 is hereby DENIED, and Plaintiff Debra Persianos Motion for Summary Judgment 38 is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 9/8/2015. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DEBRA PERSIANO
v.
T-MOBILE USA, INC.

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CASE NO. 4:14-CV-504
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant T-Mobile USA Inc.’s Motion for Summary
Judgment (Dkt. #24) and Plaintiff Debra Persiano’s Motion for Summary Judgment (Dkt. #38).
After reviewing the relevant pleadings, the Court finds that the motions should be denied.
BACKGROUND
On August 23, 2010, Debra Persiano (“Plaintiff”) was hired by T-Mobile USA Inc.
(“Defendant”) as a technical trainer (Dkt. #8 at ¶ 6). Plaintiff was 51 years of age at the time
(Dkt. #8 at ¶ 7). T-Mobile assigned Jason Lewis to be Plaintiff’s initial direct supervisor (Dkt.
#8 at ¶ 8). In March 2011, Vong Syharath (“Syharath”) became Plaintiff’s direct supervisor
(Dkt. #8 at ¶ 10). 1 Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) in May, 2012 (Dkt. #10 at ¶ 15). Plaintiff then went on
leave (Dkt. #10 at ¶ 18). On May 31, 2012 T-Mobile terminated Cynthia Wilkins and assigned
Plaintiff a new direct supervisor, Andrew Thomas (“Thomas”) (Dkt. #10 at ¶ 19). 2
Thomas gave Plaintiff a performance review score of “Achieving” for the 2012
performance year (Dkt. #10 at ¶ 20). Plaintiff’s EEOC claim remained open (Dkt. #8 at ¶ 21).
Plaintiff was granted a leave of absence to care for a sick family member from approximately

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Plaintiff alleges and Defendant denies that Syharath engaged in discriminatory behavior against Plaintiff (See Dkt.
#8 at ¶¶ 12, 16; but see Dkt. #10 at ¶¶ 12, 16).
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Plaintiff alleges and Defendant denies that Cynthia Wilkins was Syharath’s supervisor and that she also engaged
in discriminatory behavior (See Dkt. #8 at ¶¶ 13—14; but see Dkt. #10 at ¶¶ 13—14 ).

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February 28, 2013 through March 14, 2013 (Dkt. #10 at ¶ 22). 3 Plaintiff filed a second Charge
of Discrimination with the EEOC on or about April 24, 2013 (Dkt. #10 ¶ 27).
Plaintiff used her personal mobile telephone to record conversations with Thomas (Dkt.
#8 at ¶ 28). Thomas expressed concerns about reports that Plaintiff made remarks disparaging of
Syharath (Dkt. #10 ¶ 29). 4 On July 10, 2013 a telephone conference occurred between Thomas,
Plaintiff, and HR representative Rita Wright-King (“Wright-King”) (Dkt. #10 ¶ 34). WrightKing asked Plaintiff to delete the recording (Dkt. #10 ¶ 35). 5 Plaintiff resigned on July 10, 2013
and filed a third Charge of Discrimination with the EEOC on or about July 18, 2013 (Dkt. #10 ¶
37).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported
claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment
is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits
“[show] that there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). 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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all
reasonable doubts in favor of the party opposing the motion for summary judgment. Casey
Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations
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Plaintiff alleges that upon her return from leave, Thomas asked whether she planned to dismiss her pending EEOC
charge. Plaintiff further alleges that when she told Thomas that she was not planning to dismiss the charge, Thomas
began to engage in retaliatory behavior. Defendant denies these allegations (See Dkt. #8 at ¶¶ 23—26; but see Dkt.
#10 at ¶¶ 23—26).
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Plaintiff alleges that Thomas asked if she was recording their conversation, and demanded the phone so that he
could delete the conversation. Plaintiff further alleges that she offered to make a copy of the conversation for
Thomas, and that Thomas stated that he would call the police if Plaintiff did not give him her phone. Defendant
denies these allegations (See Dkt. #8 at ¶¶ 30—33; but see Dkt. #10 at ¶¶ 30—33).
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Plaintiff alleges and Defendant denies that Wright-King accused Plaintiff of a crime for not complying and
deleting the recording (See Dkt. #8 at ¶ 36; but see Dkt. #10 at ¶ 36).

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omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.
The party moving for summary judgment has the burden to show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the
movant bears the burden of proof on a claim or defense on which it is moving for summary
judgment, it must come forward with evidence that establishes “beyond peradventure all of the
essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge its
burden by showing that there is an absence of evidence to support the nonmovant’s case.
Celotex, 477 U.S. at 325; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
Once the movant has carried its burden, the nonmovant must “respond to the motion for
summary judgment by setting forth particular facts indicating there is a genuine issue for trial.”
Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce
affirmative evidence. Anderson, 477 U.S. at 257. No “mere denial of material facts nor . . .
unsworn allegations [nor] arguments and assertions in briefs or legal memoranda” will suffice to
carry this burden. Moayedi v. Compaq Computer Corp., 98 F. App’x 335, 338 (5th Cir. 2004).
Rather, the Court requires “significant probative evidence” from the nonmovant in order to
dismiss a request for summary judgment supported appropriately by the movant. United States
v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider all of the evidence, but
must refrain from making any credibility determinations or weighing the evidence. See Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
ANALYSIS
After a careful review of the record and the arguments presented, the Court is not
convinced that Plaintiff or Defendant has met its burden demonstrating that there is no material

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issue of fact entitling it to judgment as a matter of law. The case should proceed to trial.

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CONCLUSION
It is therefore ORDERED that Defendant T-Mobile USA Inc.’s Motion for Summary
Judgment (Dkt. #24) is hereby DENIED, and Plaintiff Debra Persiano’s Motion for Summary
Judgment (Dkt. #38) is hereby DENIED.

SIGNED this 8th day of September, 2015.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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