Sacchetti v. Optiv Security, Inc.
Filing
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MEMORANDUM ADOPTING 66 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE. IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (Dkt. # 30 ) is hereby GRANTED. Signed by District Judge Amos L. Mazzant, III on 9/27/2019. (rpc, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
STEVEN SACCHETTI,
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Plaintiff,
v.
OPTIV SECURITY, INC.,
Defendant.
Civil Action No. 4:18-cv-0099
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28
U.S.C. § 636. On July 8, 2019, the report of the Magistrate Judge was entered (see Dkt. #66) (the
“Report”) containing proposed findings of fact and recommendations that Defendant Optiv
Security, Inc.’s (“Defendant”) Motion for Summary Judgment (Dkt. #30) be granted. Plaintiff
Steven Sacchetti (“Plaintiff”) filed objections to the Report (the “Objections”) (Dkt. #69);
Defendant filed a response to the Objections (the “Response”) (Dkt. #71). The Court, having made
a de novo review of the Objections and Response, is of the opinion that the findings and
conclusions of the Magistrate Judge are correct, and the Objections are without merit as to the
ultimate findings of the Magistrate Judge.
I.
BACKGROUND
Plaintiff is a forty-five-year-old male who was employed by Defendant from July 16, 2012,
through his termination on November 17, 2016. See Dkt. #30-3 at 6, 23; Dkt. #30-4 at 14. At the
time of Plaintiff’s termination, he was employed in the role of Regional Director. See Dkt. #30-3
at 6, 23. Plaintiff alleges the reasons given for his termination were false and pretextual, and that
Defendant discriminated against him on the basis of age and/or gender. See Dkt. #1 at 4, 15.
Plaintiff further alleges Defendant retaliated against and defamed him by communicating about
Plaintiff to his potential employers. See id. at 13–17.
Plaintiff filed suit pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§2000e–2000e-5, the Age Discrimination in Employment Act (“ADEA”), 28 U.S.C. §
623 et seq., and Chapter 21 of the Texas Labor Code, asserting causes of action for age and gender
discrimination, as well as retaliation. See Dkt. #1 at 15. Plaintiff further asserts a Texas common
law claim for defamation. See id. at 15–17. Defendant filed the Motion for Summary Judgment
(Dkt. #30), to which Plaintiff filed a response (Dkt. #34), Defendant filed a reply (Dkt. #40), and
Plaintiff filed a sur-reply (Dkt. #42). On June 19, 2019, the Magistrate Judge held oral arguments
regarding the Motion for Summary Judgment. See Dkt. #56. In the Report, the Magistrate Judge
recommended Defendant’s Motion for Summary Judgment be granted. See Dkt. #66. Plaintiff filed
the Objections (Dkt. #69), and Defendant filed the Response (Dkt. #71).
II.
DISCUSSION
Plaintiff’s Objections reassert the same arguments already addressed by the Magistrate
Judge in her Report, and Plaintiff fails to direct the Court to evidence which raises a fact question
on any of his claims. Summary judgment is appropriate when, viewing the evidence and all
justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c); Hunt v. Cromartie, 526 U.S. 541, 549 (1999). The appropriate inquiry is “whether the
evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it
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is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986).
1. Age Discrimination
Plaintiff objects to the Report’s recommendation that Plaintiff’s age discrimination claims
be dismissed because Plaintiff failed to satisfy his burden to show pretext under the ADEA. See
Dkt. #69 at 2. In the Report, the Magistrate Judge found Plaintiff articulated his prima facie age
discrimination case and that Defendant articulated a legitimate nondiscriminatory reason for
Plaintiff’s termination. See Dkt. #66 at 7–10. Plaintiff argues the Report erred in the third stage of
the McDonnell Douglas analysis, by finding no question of fact on Plaintiff’s burden to show
pretext. See Dkt. #69 at 2–3.
Specifically, Plaintiff argues he has met his burden to rebut the nondiscriminatory reason
for his termination by showing: (1) there was conflicting testimony regarding who decided to
terminate him; (2) the reason given for his termination was “false and illogical;” (3) Defendant did
not engage in progressive discipline; (4) Tina Parmer (“Parmer”), a female employee, 1 was treated
“clearly more favorabl[y]” than Plaintiff; and (5) Optiv viewed Plaintiff as posing a risk. See Dkt.
#69 at 2–4. None of the articulated reasons relate to Plaintiff’s age. Moreover, the Court finds no
error in the Magistrate Judge’s careful analysis of the evidence submitted and the argument made
at the June 19, 2019, hearing. As the Report finds, “Plaintiff put forth no evidence that any member
of Defendant’s management was aware of Plaintiff’s age and/or considered Plaintiff’s age when
making the decision to terminate Plaintiff’s employment, or that but-for Plaintiff’s age, Plaintiff
would not have been terminated.” See Dkt. #66 at 10. Plaintiff argues, and the Court agrees, that
the law “allows for circumstantial evidence to support a discrimination claim.” See Dkt. #69 at 5.
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Parmer is older than Plaintiff. See Dkt. 30-9 at 3.
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However, the Court finds no error in the Report’s conclusion that Plaintiff presented no evidence
that Plaintiff’s age was a factor in his termination. See Dkt. #66 at 10. Accordingly, Plaintiff’s
objection is OVERRULED.
2. Gender Discrimination
Plaintiff argues the Report erred by finding Plaintiff failed to establish a prima facie case
of gender discrimination. See Dkt. #69 at 5. Plaintiff argues that “[t]his is a case where gender
discrimination can be inferred by comparing Plaintiff to someone that is ‘similarly situated’
because the claim itself stems from Optiv’s discriminatory treatment of Plaintiff in comparison to
the female subordinate that lodged a sex discrimination claim against him.” Id. at 6. Plaintiff argues
he should be compared to Parmer, a female employee who worked for him, although Plaintiff
acknowledges that he is “not traditionally ‘similarly situated’” to Parmer. See id. Nevertheless,
Plaintiff argues Parmer should be treated as a proper comparator under a flexible interpretation of
the requirements for a prima facie case for gender discrimination. See id.
The Court finds no error in the Report’s conclusion that Parmer is not a proper comparator
because: (1) Plaintiff and Parmer did not report to the same supervisor (because Parmer reported
to Plaintiff himself); (2) unlike Plaintiff, Parmer was not in management; and (3) Parmer was
alleged to have committed different work rule violations resulting in her receipt of a performance
improvement plan, rather than termination. See Dkt. #34 at 31; Dkt. #30-3 at 34, 41, 54; Dkt. #305 at 8. Accordingly, the Court finds no error in the Report’s conclusion that Plaintiff fails to
identify a proper comparator. Thus, there is no question of fact—Plaintiff has simply failed to
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meet his burden to present a prima facie case of gender discrimination. This objection is
OVERRULED.
3. Defamation
Plaintiff objects to the Report’s conclusion that summary judgment should be granted on
Plaintiff’s defamation claim. See Dkt. #69 at 7. The Report identified six sets of communications
that Plaintiff asserts were defamatory. See Dkt. #66 at 15–16. Plaintiff does not object to the
Report’s summary of the statements at issue. See generally Dkt. #69 at 7–9. Rather, Plaintiff argues
the Court should find he satisfied the elements of a claim for either defamation per se or per quod
and deny summary judgment on this claim.
The Court first addresses Plaintiff’s argument that the Court should consider evidence not
in the record “because Optiv failed to produce it despite it being discoverable.” See Dkt. #69 at 8
(italics omitted). Having reviewed the record, Plaintiff’s argument that Defendant withheld
discovery is both new and speculative. Plaintiff has not requested additional time for discovery
and no motion to compel has been filed. At this stage of proceedings, the Court cannot rely on
Plaintiff’s unsupported conjecture that Defendant is withholding discovery; rather, the Court must
rely on properly cited evidence in the record. See Ragas, 136 F.3d at 458; Stults, 76 F.3d at 655.
To the extent Plaintiff objects to the Report on this basis, this objection is OVERRULED.
Plaintiff argues the Report erred because he satisfied the elements of a claim for defamation
per se. Specifically, Plaintiff argues the Court should find he properly pled a claim for defamation
per se because “a reasonable factfinder could easily determine . . . that Optiv did make defamatory
statements to potential employers and caused damages.” See Dkt. #69 at 9. However, the Report
correctly states that in order to plead a claim for defamation, the plaintiff must plead “the full
context of the allegedly defamatory statement” and “must identify the third party to whom the
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defamatory statements were published. See Dkt. #66 at 15 (citing Bentley v. Bunton, 94 S.W.3d
561, 579 (Tex. 2002); Lorfing v. Gerdau Ameristeel U.S., Inc., 2017 WL 9471835, at *3 (N.D.
Tex. Jan. 26, 2017)). Here, Plaintiff’s argument is based on speculation and his theory that
Defendant must have made statements to Plaintiff’s potential employers. That argument is
unsupported by the record, as Plaintiff directs the Court to no evidence of any statement made by
Defendant to any potential employer. 2 The Court finds no error in the Report’s finding that the
Court cannot attribute statements to Defendant where neither the speaker nor the content of the
speech is identified in the record. See Dkt. #66 at 16–17. As such, the Court finds no error in the
Report’s finding that “[no] statements by Defendant satisfies the standard for either libel per se or
slander per se, as neither [of Defendant’s] statement[s], on its face, falls into the categories of
defamatory language” which are actionable under Texas law. See Dkt. #66 at 18 (citing In re
Lipsky, 460 S.W.2d 579, 596 (Tex. 2015)). Accordingly, this objection is OVERRULED.
Plaintiff also argues he satisfied the elements of a claim for defamation per quod because:
(1) while there was no evidence Defendant made certain statements, a reasonable factfinder could
have inferred that information known by third parties was published by Defendant; and (2) a
reasonable factfinder could find that allegedly conflicting statements attributable to Defendant
were defamatory. See Dkt. #69 at 7–8.
First, while Plaintiff argues Defendant must have defamed him because “that was the only
place he had worked in that time, the subject was [Plaintiff’s] management style, and the author
had never met him,” this argument is pure conjecture. See Dkt. #69 at 8. As Plaintiff acknowledges,
statements about Plaintiff’s management style or work history could have been made by business
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The Report correctly finds only two statements in the record are attributable to Defendant, neither of which was
directed to any potential employer. See Dkt. #69 at 8–9; see infra p.7.
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partners and/or clients who interacted with Plaintiff while he was employed by Defendant. 3 See
Dkt. #69 at 8. In the absence of evidence demonstrating the content of a statement, who made it,
and to whom it was published, the Court cannot simply attribute unidentified statements to
Defendant. Bentley, 94 S.W.3d at 579; Lorfing, 2017 WL 9471835, at *3. Accordingly, this
objection is OVERRULED.
Second, Plaintiff argues that the two statements by Defendant about Plaintiff’s termination
are conflicting, and thus may be defamatory. See Dkt. #69 at 8–9. In the first email, sent by
Plaintiff’s supervisor, no reason is given for Plaintiff’s termination. See Dkt. #36 at 184. In the
second communication, an incomplete record of text messages between Plaintiff and an individual
employed by Defendant, the “official answer” to give Defendant’s vendors about the reason for
Plaintiff’s termination was “the management style didn’t fit.” See Dkt. #36 at 133. While Plaintiff
argues that these statements are conflicting, see Dkt. #69 at 7, Plaintiff does not explain how these
messages conflict. Moreover, Plaintiff identifies no precedent holding that a general statement
about Plaintiff’s management style is defamatory. While a defamation per quod claim allows
consideration of extrinsic evidence and explanatory circumstances, Plaintiff directs the Court to
no evidence in the record which supports his assertion that he was defamed. Even were the Court
to consider Defendant’s statements as evidence of defamation per quod, the Court finds no error
in the Magistrate Judge’s conclusion that “Plaintiff fails to satisfy the elements of a defamation
per quod claim because he fails to prove that either statement by Defendant was made with
negligence regarding the truth of the statement.” See Dkt. #66 at 19 (citing Encompass Office Sols.,
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Plaintiff further argues that an email from an unidentified sender could be attributable to Defendant. See Dkt. #69 at
8. However, discovery has closed, and Plaintiff has put forth no evidence regarding who sent the email. This argument
is unsupported conjecture.
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Inc. v. Ingenix, Inc., 775 F. Supp. 2d 938, 958 (E.D. Tex. 2011)). Accordingly, this objection is
OVERRULED.
4. Retaliation
Plaintiff objects to the Report’s recommendation that summary judgment be granted on his
claim for retaliation under the ADEA, Title VII, and the Texas Labor Code. See Dkt. #69 at 9. At
the June 19, 2019, hearing, Plaintiff agreed that his retaliation claim is based on the alleged
retaliatory conduct by Defendant after Plaintiff’s termination, and that it rises and falls on his
defamation claim. See Dkt. #34 at 39; see also Dkt. #69 at 9.
As addressed above, Plaintiff identifies no statement made by Defendant to any of
Plaintiff’s prospective employers. Plaintiff further identifies no evidence that any of Plaintiff’s
prospective employers relied on any statement purportedly made by Defendant. Despite the
“specious circumstances” which Plaintiff alleges surround the cessation of the hiring process by
his prospective employers, see Dkt. #69 at 9, Plaintiff fails to identify or submit evidence linking
the prospective employer’s decision not to hire Plaintiff with any act or statement of Defendant.
In the absence of evidence, Plaintiff’s objection is OVERRULED.
III.
.
CONCLUSION
For the reasons stated above, Plaintiff’s objections are OVERRULED.
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Dkt. #30)
is hereby GRANTED.
IT IS SO ORDERED.
SIGNED this 27th day of September, 2019.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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