Moore v. Capital One NA
MEMORANDUM OPINION AND ORDER granting 54 Motion for Summary Judgment filed by Capital One NA; denying as moot 62 Motion to Strike filed by Capital One NA; denying as moot 63 Motion to Strike filed by Capital One NA; and denying as moot 64 Motion to Strike filed by Capital One NA. (Ordered by Judge Sidney A Fitzwater on 6/13/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
CAROLYN A. MOORE,
CAPITAL ONE, N.A.,
§ Civil Action No. 3:14-CV-3282-D
Plaintiff Carolyn A. Moore (“Moore”) brings this action against defendant Capital
One, N.A. (“Capital One”), alleging claims for race and age discrimination and retaliation
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the
Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; and the
Texas Commission on Human Rights Act (“TCHRA”),1 Tex. Labor Code Ann. § 21.001 et
seq. (West 2015). Capital One moves for summary judgment. For the reasons that follow,
the court grants the motion and dismisses this action by judgment filed today.
As the court noted in King v. Enterprise Leasing Co. of DFW, 2007 WL 2005541
(N.D. Tex. July 11, 2007) (Fitzwater, J.): “‘Chapter 21 was entitled the Texas Commission
on Human Rights Act until the abolishment of the Commission on Human Rights. In 2004,
the ‘powers and duties’ of the Commission on Human Rights were transferred to the Texas
Workforce Commission Civil Rights Division.’” Id. at *1 n.1 (quoting Tex. Dep’t of
Criminal Justice v. Guard, 2007 WL 1119572, at *2 n.3 (Tex. App. 2007, no pet.) (not
designated for publication)). As in King, the court for clarity will refer to these claims as
brought under the TCHRA.
In June 2006 Capital One hired Moore as a temporary Clerical Associate in its
Distribution Center Department, also known as the Vault Department.2 The following year,
Vault Department Manager in Training, Seth Carillo (“Carillo”), hired Moore as a full-time,
permanent Clerical Associate II. At the time Capital One hired Moore as a permanent
employee, she was 47 years old.
The Vault Department maintains collateral files for Capital One Auto Finance and
stores secure information and documentation relating to car and home loans. Associates in
the Vault Department work on various processes that involve maintaining and organizing
contract files and supporting documentation. Capital One expects associates in the Vault
Department, including Moore, to maintain quality assurance (“QA”) standards by limiting
the percentage of errors they make while working a particular process. According to Capital
One, each month, auditors in Capital One’s Audit Department audit a sampling of processes
completed by each associate. Errors are then categorized based on a level of risk (high,
medium, or low) to Capital One’s business and customers, and the associate’s monthly QA
average is decreased based on the number and risk alert level of any errors discovered by the
In deciding Capital One’s summary judgment motion, the court views the evidence
in the light most favorable to Moore as the summary judgment nonmovant and draws all
reasonable inferences in her favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541
F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v.
Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
Capital One’s “Vault Performance Expectations” document (which Capital One
maintains was in effect when Moore’s employment was terminated), states that “[q]uality
must be higher than 98% for Monthly Average.” D. App. 167. It then lists the following
“Risk Alerts” in a rolling 90-day period: one risk alert—verbal warning; two risk
alerts—written warning; three risk alerts—conduct memo; four risk alerts—termination. Id.
Capital One maintains that an error must be discovered by the QA department in order for
it to affect an associate’s monthly QA score.
Although Moore received strong performance reviews from 2008 through 2011,
Capital One maintains that, during Moore’s annual reviews for these years (including in 2009
when Moore indicated to Carillo that she would like to “work on becoming a lead for the
department,” id. at 175), Carillo repeatedly counseled Moore about her need to improve in
the areas of influence and communication. Capital One also contends that, during Moore’s
2010 performance review, Carillo suggested that Moore join a Quality Circle3 team in order
to improve in the competencies of influence and communication. Rather than join a Quality
Circle, Moore joined the I-Team, an organization that plans fun activities and rally events
and recognizes associates’ birthdays. During Moore’s 2011 performance review, Carillo
A Quality Circle is a group of associates who work together to create solutions to an
issue relating to a process, complete a tracking document known as a “PDCA Action Plan,”
and then present their solution to management. The primary goal of a Quality Circle is to
identify a process, learn how the process works, and then develop methods to improve the
process. Capital One maintains that Quality Circles are used to develop associates’ skill sets
in certain areas relating to their job duties, including leadership and influence, and to help
create solutions for working various processes in the Vault Department.
again recommended that Moore join a Quality Circle because it “would help her grow on
how a process is built and show how to influence a team.” Id. at 181. Moore never joined
a Quality Circle.
On April 25, 2012 Senior Unit Manager Annette “Bre” Galvan (“Galvan”) sent an
email to all permanent associates in the Vault Department to gauge their interest in becoming
a Team Lead.4 At the time, Larisa Dzhavadova (“Dzhavadova”) was the only Team Lead
in the department, but Galvan and Carillo determined that another Team Lead was necessary
to keep up with the growth and demands of the department. Moore responded to Galvan’s
email expressing interest in the position.
In June 2012 Carillo moved to a position outside of the Vault department and Jorge
Cornejo (“Cornejo”) replaced Carillo as Manager in Training.
(“Stanaland”) replaced Galvan as Senior Unit Manager and served as Cornejo’s immediate
supervisor. In October 2012 Cornejo and Stanaland promoted Anthony Vogel (“Vogel”), a
Capital One maintains that
[a] Team Lead creates, maintains, and facilitates new hire
training for the Vault team, completes internal QA audits of
associates’ work and provides documentation of the audits to
management. A Team Lead must have a high level of systems
knowledge and skills, such as outlook, excel, knowledge link,
winocular, etc. and must have expert knowledge of the processes
and systems within the Vault, as well as knowledge of the
processes outside of the Vault that impact Capital One’s
customers. The Team Lead also needs to have exceptional
communication, influence, and teamwork skills.
D. Br. 6 n.3.
27-year-old Caucasian, to the position of Team Lead. Moore contends that Dzhavadova
provided Vogel the training to become a Team Lead and that he received the promotion
based, in part, on his alleged romantic relationship with Dzhavadova.5
On Moore’s 2012 annual performance review, which Capital One maintains Cornejo
completed before December 20, 2012, Cornejo rated Moore as “inconsistent” on seven of
nine competencies. Under “Development Opportunities,” Cornejo noted:
[Moore] has several opportunities in the areas of
communication, teamwork and results focused. [She] does not
communicate effectively with peers and supervisors. . . . She
avoids addressing concerns with her team lead or asking for
feedback. When asked to request written feedback from her
team leads she said no because she felt that she would only
received negative feedback. Her peers have expressed that she
is at times non-responsive or unapproachable. In both, team
meetings and events, she has shown to be disengaged by sitting
away from the team instead of joining the group. When asked
if [she] would be interested in volunteering to help another
department, her response was that her peer should do it. She is
not sought out by her team member[s] for input despite her
tenure in the team.
[Moore] is part of the QA pulling team but has received several
errors in her overall QA score during the year. Often, she has
also been found to fill out trackers improperly and move files .
. . to the wrong location. Her production has also shown to be
inconsistent and often does not meet her daily goal which in the
past contributed to a backlog of files that needed to be reviewed.
Id. at 182. During her deposition, Moore admitted that her monthly QA scores for 2012 were
unacceptable at various times.
Capital One contends that Team Leads are not managerial level positions and that
Dzhavadova did not have the authority to hire, fire, promote, or discipline associates.
On January 28, 2013 Moore told Stanaland that she believed she was passed over for
the Team Lead position given to Vogel because she was African-American and older. She
also said that she felt Cornejo had harassed her in a recent meeting by responding to her in
a harsh manner. Moore then contacted HR Specialist Debbie Sterling (“Sterling”), and, when
they met on February 4, 2013, Moore told Sterling that she had been discriminated against
by not being promoted to Team Lead; that Dzhavadova had refused to train her to become
a Team Lead but trained Caucasian employees; and that Cornejo had retaliated against her
by responding to her harshly during a meeting. Sterling conducted an investigation into
Moore’s complaints, but concluded that she could not substantiate any of Moore’s claims for
race and age discrimination, harassment, or retaliation and informed Moore of the results of
her investigation on February 15, 2013.
On February 22, 2013 Moore filed with the Equal Employment Opportunity
Commission (“EEOC”) a charge of discrimination (“EEOC Charge”), alleging race and age
discrimination and retaliation beginning on May 1, 2012. In the EEOC Charge, she alleged
that she was denied training opportunities that her younger Caucasian counterparts were
given to become Team Leads; she was passed over for a promotion to a Team Lead and the
job was given to a younger Caucasian counterpart; and she was retaliated against after she
reported the discrimination “earlier this year” by being “given a poor performance review
a week later despite having no previous performance issues and receiving good performance
reviews.”6 Id. at 222.
In November 2013 Melissa Gandara Whitley (“Gandara”), Manager in
Training—Records Management, became Moore’s immediate supervisor. When Moore
received the lowest QA score (98.33%) of all the associates in the Vault Department for the
month of November, Gandara and Cornejo discussed Moore’s risk alert/error with her in a
“10/10” meeting.7 According to Capital One, Moore refused during the meeting to take
ownership of the error and appeared to be frustrated and withdrawn.
In January 2014 Moore was advised that, in addition to the PF Checks and Release
process she was already working on, she would begin working the Vault E-Mail Box process.
When Moore questioned the decision to assign her to the Vault E-Mail Box, Gandara
explained that working the Vault E-Mail Box would be a good developmental opportunity
for Moore. Later that month, Gandara sent Moore an email providing her with the names of
three Capital One Univeristy (“COU”) courses that Gandara wanted Moore to complete to
improve her written communication skills. Moore failed to complete all three courses,
despite Gandara’s request that she do so.
In April 2014 the EEOC dismissed Moore’s EEOC Charge and issued her a right-tosue letter.
“10/10” meetings are regular meetings in which associates meet individually with
their supervisor to discuss their performance. During a “10/10” meeting, the associate is
given 10 minutes to talk about her employment with the manager, and, afterward, the
manager is given 10 minutes to discuss the associate’s performance. Capital One maintains
that the purpose of “10/10” meetings is to provide routine, constructive feedback to
associates about their performance on a regular basis.
In Moore’s 2013 performance review, Gandara noted the areas in which she felt
Moore needed improvement:
[o]ne of [Moore]’s opportunities is communication. . . . She has
shown to have grammar, punctuation, and spelling errors in her
writing. . . . During verbal communication, [Moore] often rolls
her eyes if she does not agree with an idea and sometimes has
difficulty creating two-way dialogue. [Moore] has difficulty
with taking direction from her team lead and does not assume
positive intent. She does not seek feedback and when it is given
she is reluctant to admit mistakes. Many times [Moore]’s
response to a question is “I don’t know,” and does not make an
effort to investigate or provide a reasonable solution. [Moore]’s
job specific skills are also an area of opportunity. She has little
knowledge of MS office which is necessary for many tasks that
would be needed for her to grow in the department. She
requires a lot of guidance when working with Excel, while
preparing and pulling sheets and more recently has shown
similar errors while working with mailboxes in Outlook.
Id. at 184.
Gandara also noted Moore’s “desire to become a formal leader in the
department,” and stated her belief that Moore could “move forward in the right direction”
by being receptive to feedback and by leveraging Capital One’s educational resources
(including its COU resources) to improve her written communication, verbal communication,
and computer skills. Id. Capital One contends that, when Moore met with Gandara, Cornejo
and Kelly Russell (“Russell”), a Department Operations Manager, to review her 2013
performance review, Moore exhibited “unprofessional and combative behavior” by, for
example, telling Gandara that she should fix the grammatical errors in Moore’s performance
review before attempting to criticize Moore about grammatical mistakes. D. Br. 13.
On February 27, 2014 Moore was issued a “Conduct Memo for Being Disrespectful
to Co-workers,” (“Conduct Memo”). D. App. 275. According to the Conduct Memo, Moore
“ha[d] recently demonstrated concerning behavior by becoming argumentative, disruptive
and unprofessional when communicating with her co-workers and managers,” and the memo
detailed four examples of this behavior. The Conduct Memo concluded:
[t]his Conduct Memo serves as a final warning. Though this
Conduct Memo will be active for a period of 90 days, should
[Moore] violate these expectations, or any other policy or
procedure of Capital One, either during or after this memo
timeframe, she could be subject to additional disciplinary action
up to and including immediate termination of employment for
Id. at 276.
Moore’s overall QA score for April 2014 was 86.67%—the lowest QA score of any
associate in the department. As of April 30, 2014, Moore’s year-to-date QA average was
95%, and her 12 month QA average was 97.5%, which was below Capital One’s 98% quality
standard expectation. Accordingly, on May 12, 2014 Gandara and Unit Manager Charles
Christopher Craig (“Craig”) issued a Performance Improvement Plan (“PIP”) that required
Moore to maintain a monthly 98% QA average for the next 90 days. As part of the PIP,
Moore was required to submit “an action plan within the next five days that will demonstrate
the actions needed for immediate and sustained improvement.” Id. at 345. Capital One
maintains that, during the meeting with Gandara and Craig, Moore stated that she felt she
was being “harassed” and accused her managers of trying to push her out of the company.
Following the meeting, Gandara emailed Sharon Wood (“Wood”), who was employed
in Associate Relations, Human Resources, with a copy to Craig, a recap of the meeting,
including Moore’s statement that she was being “harassed.” Wood directed Craig to follow
up with Moore to find out why she felt harassed. Craig met with Moore on May 13, 2014.
During the meeting, Craig discussed the 98% QA expectations for Moore’s position, but
Moore claimed the standard was unrealistic. Moore advised Craig that she felt harassed
because her work was being “tampered with” after she reported discrimination. Id. at 122.
Craig encouraged Moore to come talk to him or to contact Associate Relations if she felt that
something impeded her progress.
The following day, Gandara met with Moore and provided her with a copy of Capital
One’s Vault Performance Expectations document. Gandara also made several suggestions
of ways Moore could improve her performance. According to Capital One, Moore was
unresponsive to Gandara’s suggestions and refused to take ownership of her performance,
again claiming that Capital One’s 98% QA expectation was too high. Capitol One maintains
that, in an “effort to ensure Moore is successful in her process,” Gandara decided to remove
Moore from working the Vault E-Mail Box. Id. at 434.
Moore submitted an action plan, as the PIP required. According to Capital One, the
action plan Moore submitted was very broad and failed to identify any specific actions she
planned to take to improve her performance. At the suggestion of Wood, Gandara asked
Moore to expand her action plan to include specific steps she intended to take to improve her
performance. In her revised action plan, under “Associate Comments,” Moore stated,
“[b]ecause of factors surrounding my [QA], production and other factors, I don’t agree with
having to take the measure of writing a PIP. I feel this is an attack against me. My job has
been threaten[ed] because of it.” Id. at 355.
On May 21, 2014 Gandara emailed Moore and asked her to review the unidentified
queue because Dzhavadova had found several errors in Moore’s work. According to Capital
One, instead of immediately seizing the opportunity to correct her errors, Moore questioned
whether her daily production would be affected if she took the time to identify and correct
the errors. Gandara then discussed the issue in person, but, according to Capital One, Moore
became very combative, raised her voice at Gandara, and accused Gandara of harassing her
because Gandara would not identify the errors for Moore. On May 27, 2014, when Gandara
asked whether Moore was using any of the techniques or suggestions Gandara had discussed
with her on May 14, 2014, Moore responded that she was not using any of the techniques or
suggestions because she felt the way she already did it was fine.
The following week, QA Auditor Whitney Tingdale (“Tingdale”) found two high risk
errors that Moore had made in the queue. Moore’s overall QA score for May 2014 was
93.33%, which was the lowest QA score in the entire department. Moore’s May 2014 QA
score failed to comply with the terms of her PIP, which required Moore to maintain a 98%
monthly QA average for May.
Capitol One maintains that, as a result of Moore’s increasingly combative and defiant
behavior, her accumulation of four high risk alerts with a 90-day period, and her failure to
comply with the terms and conditions of her PIP, Gandara and Craig decided to terminate her
employment. Accordingly, on June 3, 2014, Capital One terminated Moore’s employment
for unsatisfactory performance and having a poor attitude. Capital One maintains that, at the
time Gandara and Craig decided to terminate Moore’s employment, they were unaware that
she had made complaints of discrimination, harassment, and retaliation with Capital One in
January 2013 and were unaware that she had filed a charge of discrimination with the EEOC
in February 2013.
After the EEOC dismissed Moore’s EEOC Charge and issued her a right-to-sue letter,
Moore sued Capital One in state court, alleging claims for discrimination and retaliation
under the TCHRA, Title VII, and the ADEA based on Capital One’s denying her training
opportunities, denying her a promotion, giving her a poor performance review, and
terminating her employment. Capital One removed the case to this court and now seeks
summary judgment. Moore opposes Capital One’s motion.
As a threshold matter, the court notes that Moore has failed to comply with certain
procedural requirements of this court’s local summary judgment rules. N.D. Tex. Civ. R.
56.6(a) provides that summary judgment materials must be included in an appendix. Rule
56.6(b)(3) requires that “[e]ach page of the appendix must be numbered legibly in the lower,
right-hand corner. The first page must be numbered as ‘1,’ and succeeding pages must be
numbered sequentially through the last page of the entire appendix.” Instead of a properlypaginated single appendix, Moore has filed three individual appendix “Exhibits,” each of
which is separately numbered. Additionally, Moore has failed to comply with Rule 56.5(c),
which provides that “[w]hen citing materials in the record, as required by Fed. R. Civ. P.
56(c)(1)(A) or (B), a party must support each assertion by citing each relevant page of its
own or the opposing party’s appendix.” Instead, Moore’s brief cites generally to her affidavit
and the affidavits of two coworkers, without pinpoint citations. See, e.g., P. Br. 7 (citing, for
proposition that Moore “possessed these qualifications moreso than Anthony Vogel, the
person who was given the job sought by Plaintiff,” “Affidavits of Moore, Smith and
Shaver”). Despite these procedural errors, because the three affidavits on which Moore relies
are relatively short, the court will consider them in deciding Capital One’s motion for
Additionally, Moore’s brief does not contain a statement of facts. The court therefore
draws its recitation of the facts from Moore’s complaint, Capital One’s apparently
uncontested statement of facts contained in its summary judgment brief, and the factual
allegations contained in Moore’s summary judgment response brief (insofar as they are
supported by evidence contained in Moore’s appendix).
Because Moore will bear the burden of proof at trial on her claims for discrimination
and retaliation under the ADEA, Title VII, and the TCHRA, Capital One can meet its
summary judgment obligation by pointing to the absence of admissible evidence to support
Moore’s claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Capital One
does so, Moore must go beyond her pleadings and designate specific facts demonstrating that
there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that
a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof as to any essential
element renders all other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512
F.Supp.2d 613, 623 (N.D. Tex. 2007 ) (Fitzwater, J.). Summary judgment is mandatory
where the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.
The court will consider together Moore’s age discrimination claim under the ADEA
and her race discrimination claim under Title VII and the TCHRA. The familiar McDonnell
Douglas8 burden-shifting framework applies to all three claims.9
It is unlawful under the ADEA and the TCHRA “to discharge any individual or
otherwise discriminate against any individual . . . because of such individual’s age.” 29
U.S.C. § 623(a)(1); see also Tex. Labor Code Ann. § 21.051(1) (West 2015) (making it an
unlawful employment practice to discharge or discriminate against an individual because of
age.). Title VII and the TCHRA make it unlawful for an employer to discriminate against
an employee on the basis of her race. See 42 U.S.C. § 2000e-2(a)(1); Tex. Labor Code Ann.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court
noted that it “has not definitively decided whether the evidentiary framework of McDonnell
Douglas . . . is appropriate in the ADEA context.” Id. at 175 n.2. The Court relied instead
on a textual analysis of the ADEA to resolve the question whether a plaintiff can succeed on
a “mixed-motives” claim of age discrimination. Id. at 175-77. Absent Supreme Court
authority, the court will follow the Fifth Circuit’s post-Gross precedent and apply McDonnell
Douglas to ADEA cases. See, e.g., Smith v. Bd. of Supervisors of S. Univ., 656 Fed. Appx.
30, 34 (5th Cir. 2016) (per curiam) (“Claims for age discrimination under the ADEA are also
evaluated under the McDonnell Douglas framework.” (citation omitted)).
§ 21.051(1). To prove her age and race discrimination claims, Moore can rely on direct or
circumstantial evidence. See, e.g., Flanner v. Chase Inv. Servs. Corp., 600 Fed. Appx. 914,
917 (5th Cir. 2015) (per curiam) (ADEA claim); Dailey v. Whitehorn, 539 Fed. Appx. 409,
411 (5th Cir. 2013) (per curiam) (Title VII claim). If Moore relies on circumstantial
evidence, her claim is analyzed under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Reynolds v. Sovran Acquisitions,
L.P., 650 Fed. Appx. 178, 180 (5th Cir. 2016) (Title VII and ADEA claims); Reed v. Neopost
USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (“Where, as here, a plaintiff relies on
circumstantial evidence, Texas courts apply the familiar McDonnell Douglas burden-shifting
framework to [discrimination] claims under the TCHRA.”). This framework consists of three
First, Moore must establish a prima facie case of discrimination, which “creates a
presumption that [Capital One] unlawfully discriminated against [her].” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981). Moore may establish a prima facie case for
discrimination based on her race and age by showing: “(1) she is a member of a protected
class, (2) was qualified for the position, (3) was subjected to an adverse employment action,
and (4) was treated less favorably than similarly-situated employees who are not members
of her protected class.” Munoz v. Seton Healthcare, Inc., 557 Fed. Appx. 314, 320 (5th Cir.
2014) (per curiam) (citing Wesley v. Gen. Drivers, Warehousemen & Helpers Local 745, 600
F.3d 211, 213 (5th Cir. 2011)) (addressing claims under Title VII and ADEA).
Second, the burden shifts to Capital One to articulate a legitimate, nondiscriminatory
reason for the employment action taken against Moore. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 506-07 (1993). Capital One’s burden is one of production, not proof, and
involves no credibility assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d
379, 385 (5th Cir. 2003). This “burden requires the production of admissible evidence in
support of its nondiscriminatory reasons.” Hervey v. Miss. Dep’t of Educ., 404 Fed. Appx.
865, 868 (5th Cir. 2010) (per curiam) (citing Burdine, 450 U.S. at 255).
Third, once Capital One has produced evidence of a legitimate, nondiscriminatory
reason for the adverse employment action, “the presumption of discrimination created by
[Moore’s] prima facie case disappears,” Machinchick v. PB Power, Inc., 398 F.3d 345, 350
(5th Cir. 2005), and “the burden shifts back to [Moore] to make an ultimate showing of
intentional discrimination,” Campbell v. Zayo Grp., LLC, 2015 WL 3903539, at *3 (N.D.
Tex. June 25, 2015) (Fitzwater, J.) (quoting Reed, 701 F.3d at 439); see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). For her title VII and TCHRA
claims, Moore must prove either that (1) “[Capital One’s] proffered reason is not true but is
instead a pretext for discrimination” (pretext analysis) or (2) “[Capital One’s] reason, while
true, is not the only reason for its conduct, and another ‘motivating factor’ is [Moore’s]
protected characteristic” (mixed-motive analysis). Alvarado v. Tex. Rangers, 492 F.3d 605,
611 (5th Cir. 2007) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004))
(Title VII claim); Reed, 701 F.3d at 439-40 (TCHRA claim). For her ADEA claim, however,
Moore must prove either that (1) “[Capital One’s] proffered reason was not true—but was
instead a pretext for age discrimination” (pretext analysis) or (2) “even if [Capital One’s]
reason is true, [she] was terminated because of [her] age” (“but for” analysis). Flanner, 600
Fed. Appx. at 918 (footnotes and internal quotation marks omitted). Under the ADEA, “a
reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the
reason was false, and that discrimination was the real reason.” Id. (quoting St. Mary’s Honor
Ctr., 509 U.S. at 515). In other words, the causation standard under the third stage of
McDonnell Douglas differs for ADEA claims, on the one hand, and Title VII and TCHRA
claims, on the other hand, because, under Title VII and the TCHRA, Moore need only prove
that her race (or age, for her TCHRA age discrimination claim) was a motivating factor in
the employment decision, but, under the ADEA, she must prove that her age was the “but
for” cause (the reason) for the employment decision. See Reynolds, 650 Fed. Appx. at 181
n.4 (“The plaintiff’s burden of proof under the third stage of McDonnell Douglas is thus
higher for ADEA claims than for Title VII claims. For an ADEA claim, the plaintiff must
demonstrate that age was a but-for cause of the adverse employment action. For a Title VII
claim, in contrast, the plaintiff need demonstrate only that sex was a motivating factor.”);
Reed, 701 F.3d at 440 (“Under the ADEA, a plaintiff must prove that age was the ‘but for’
cause of the challenged adverse employment action. Under the TCHRA, however, a plaintiff
need only show that age was a ‘motivating factor’ in the defendant’s decision” (citations
omitted)). At the summary judgment stage, of course, Moore is only obligated to raise a
genuine issue of material fact regarding pretext. See, e.g., Jackson v. Fed. Express Corp.,
2006 WL 680471, at *6 (N.D. Tex. Mar. 14, 2006) (Fitzwater, J.) (“Because [defendant] has
satisfied its burden to produce a legitimate, nondiscriminatory reason for [plaintiff’s]
discharge, in order for [plaintiff] to survive summary judgment, [s]he must create a genuine
and material fact issue regarding the ultimate question of discrimination.”).
“Although intermediate evidentiary burdens shift back and forth under this
framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.’”
Reeves, 530 U.S. at 143 (alteration in original) (quoting Burdine, 450 U.S. at 253).
The court begins with Moore’s claims for age and race discrimination based on the
denial of training opportunities.
Capital One moves for summary judgment on this claim, contending, inter alia, that
denying training opportunities does not constitute an adverse employment action as is
required for Moore’s prima facie case of age and race discrimination. To establish a
discrimination claim under Title VII, the ADEA, or the TCHRA, “a plaintiff must prove that
he or she was subject to an ‘adverse employment action’—a judicially-coined term referring
to an employment decision that affects the terms and conditions of employment.” Thompson
v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014) (citing Pegram v. Honeywell, Inc.,
361 F.3d 272, 281-82 (5th Cir. 2004)) (Title VII claim). “[A]dverse employment actions
consist of ‘ultimate employment decisions’ such as hiring, firing, demoting, promoting,
granting leave, and compensating.” Id. (citing Alvarado, 492 F.3d at 612; McCoy v. City of
Shreveport, 492 F.3d 551, 560 (5th Cir. 2007); Pegram, 361 F.3d at 282).
employment action that ‘does not affect job duties, compensation, or benefits’ is not an
adverse employment action.” Pegram, 361 F.3d at 282 (quoting Banks v. E. Baton Rouge
Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).
Capital One contends that failing to provide Moore with training cannot be the
underlying basis for her discrimination claim because she lacks evidence that Capital One
failed to provide her with the training necessary to become a Team Lead, and, moreover, the
denial of training opportunities does not constitute an adverse employment action as a matter
of law. Moore responds that, in her case, the denial of training “in fact result[ed] in the
denial of an actual promotion,” and, therefore, that “the failure to train is actionable.” P. Br.
To the extent Moore intends to assert a separate discrimination claim based on the
denial of training opportunities,10 Capitol One is entitled to summary judgment dismissing
this claim. This is so because the Fifth Circuit has consistently refused to hold that a denial
of training constitutes an adverse employment action. See, e.g., Roberson v. Game
Stop/Babbage’s, 152 Fed Appx. 356, 361 (5th Cir. 2005) (per curiam) (holding that denial
of computer training was not adverse employment action); Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 407 (5th Cir. 1999) (holding that denial of computer training was not
adverse employment action); Dollis v. Rubin, 77 F.3d 777, 779-82 (5th Cir. 1995) (holding
The court addresses below Moore’s claims for age and race discrimination based on
the denial of a promotion to the Team Lead position.
that refusal to allow employee to attend training sessions did not constitute adverse
And even if this court were inclined to hold, as Moore contends, that denial of training
can constitute an adverse employment action when lack of training results in denial of a
promotion, Moore has failed to produce any evidence that would enable a reasonable jury
to find that she was denied a promotion to the position of Team Lead based on her lack of
training. The only supporting evidence she cites is her own affidavit,11 in which she avers:
Carillo had told me that he would train me on what I needed to
be a team lead. . . . He then trained Wyatt Wolf (white male –
under 40) and Anthony Vogel (white male – under 40) to do the
processes he refused to show me. . . . Anthony was subsequently
hired for the position I was seeking, even though he had issues
with others in the department.
P. Ex. 1 at 2.12 These conclusory assertions are insufficient to enable a reasonable jury to
find that the reason Vogel was chosen over Moore for the position of Team Lead was
because Vogel had received training that Moore had been denied.
Accordingly, because Moore has failed on two grounds to establish a prima facie case
Capital One moves to strike Moore’s affidavit on the ground that it is “replete with
hearsay, conclusory statements, unsupported legal conclusions, contradictions to prior sworn
testimony, and statements lacking personal knowledge, foundation, or relevance.” D. Mot.
Strike 1. It moves to strike the affidavits of Janeeka Shaver and Starsha Smith for many of
the same reasons. Because the court is deciding the present motion for summary judgment
in Capital One’s favor, it denies Capital One’s motions to strike as moot.
As explained above, see supra § II, Moore’s appendix does not comply with the
requirements of N.D. Tex. Local Rule 56.6(b)(3), which requires that each page of the
appendix must be sequentially numbered. Accordingly, the court will refer to citations in
Moore’s appendix by exhibit number.
of age or race discrimination claim based on denial of training—either because it does not
constitute an adverse employment action or because Moore has failed to present sufficient
evidence for a reasonable jury to find that Vogel was chosen over Moore for the position of
Team Lead because Vogel had received training that Moore had been denied—the court
grants Capital One’s motion for summary judgment on Moore’s age and race discrimination
claims based on the denial of training.
Moore also alleges claims for age and race discrimination based on Capital One’s
failure to promote her to the position of Team Lead in October 2012.
Capital One moves for summary judgment dismissing Moore’s promotion claim on
the ground that she cannot establish a prima facie case of discrimination because there is no
evidence that she was qualified for the position of Team Lead. Moore responds that she was
qualified, and she cites in support her own affidavit and the affidavits of two of her
coworkers. Because the court holds below that this claim fails at the third step of the burdenshifting framework—because Moore has not produced sufficient evidence for a reasonable
jury to find pretext—the court will assume arguendo that Moore has established a prima
facie case of race and age discrimination under Title VII, the ADEA, and the TCHRA.
Turning to the second step, Capital One must produce evidence of a legitimate,
nondiscriminatory reason for failing to promote Moore to position of Team Lead in 2012.
Capital One has introduced evidence that it selected Vogel over Moore because Vogel was
more qualified. Capital One maintains that, compared to Moore, whose performance was
evaluated in 2012 as “inconsistent,” Vogel’s performance was evaluated as “very strong.”
Capital One also posits that unlike Moore, Vogel knew all of the processes in the Vault
Department, consistently demonstrated above-satisfactory performance, assisted with training
new associates, performed complex tasks, such as conducting research for audits, and was
viewed as a leader by other associates in the departments. The court concludes that Capital
One has met its burden of producing evidence of a legitimate, nondiscriminatory reason for
not promoting Moore. See, e.g., Clemmer v. Irving Indep. Sch. Dist., 2016 WL 1161784, at
*12 (N.D. Tex. Mar. 22, 2016) (Fitzwater, J.) (holding that evidence that candidate selected
for promotion was more qualified than plaintiff constituted legitimate, nondiscriminatory
reason for not promoting plaintiff), aff’d, ____Fed. Appx. ____ (5th Cir. May 19, 2017).
Because Capitol One has met its burden of production, the burden now shifts back to
Moore to produce evidence that would enable a reasonable jury to find that the reasons on
which Capitol One relied for promoting Vogel to the Team Lead position rather than Moore
To establish pretext, Moore must show that Capital One’s “proffered explanation is
false or unworthy of credence.” Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir.
2011) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). “If [Moore] can
successfully ‘raise a genuine issue of material fact as to whether [s]he has established pretext,
that will suffice to avoid summary judgment.’” Sullivan v. Worley Catastrophe Servs.,
L.L.C., 591 Fed. Appx. 243, 247 (5th Cir. 2014) (per curiam) (quoting Nichols v. Loral
Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)); Jackson, 2006 WL 680471, at *6 (“[I]n
order for [plaintiff] to survive summary judgment, [s]he must create a genuine and material
fact issue regarding the ultimate question of discrimination.”).
Moore attempts to demonstrate pretext on the basis that she was better qualified than
Vogel for the Team Lead promotion. According to Moore:
In the instant case, [Vogel] was no more qualified than [Moore].
There is no issue as to whether [Vogel] and [Moore] were
similarly situated at the time of the promotion to team lead.
[Vogel] had less communicative skills, avoided work, was rude
and dismissive. However, Vogel received a promotion and
never received any adverse job consequences. In fact, as of the
date of the filing of [Capital One]’s response, they appear to
continue boasting about how exemplary they find him to be.
Thus, [Moore] meets the burden of demonstrating a pretext for
discrimination in the failure to promote.
P. Br. 14-15 (citations omitted). Moore also maintains that
[t]here is no question that a different standard was applied to
[Vogel] than to [Moore]. Attached statements of two employees
working in the department provide evidence of their direct
interactions with Vogel. They also testify regarding the
favoritism of [Dzhavadova] towards Vogel and animus towards
Moore based on race and age. This is sufficient evidence of a
pretext for discrimination to preclude summary judgment.
Id. at 15.
The court concludes that Moore’s evidence is insufficient to create a genuine issue of
material fact on the element of pretext. “[A] showing that the unsuccessful employee was
clearly better qualified is enough to prove that the employer’s proffered reasons are
pretextual.” Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (emphasis
added; citations omitted); see also Campbell, 656 Fed. Appx. at 716 (“We have recognized
that, in some situations, ‘[a] fact finder can infer pretext if it finds that the employee was
“clearly better qualified” (as opposed to merely better or as qualified) than the employees
who are selected.’” (quoting EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th
Cir. 1995))). But a mere “[s]howing that two candidates are similarly qualified does not
establish pretext under this standard.” Price, 283 F.3d at 723. To create a genuine issue of
material fact on the question whether she was “clearly better qualified” than Vogel, Moore
was required to present evidence “from which a jury could conclude that ‘no reasonable
person, in the exercise of impartial judgment, could have chosen the candidate selected over
the plaintiff for the job in question.’” Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th
Cir. 2010) (quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277,
280-81 (5th Cir. 1999)).
Moore’s self-serving affidavit and the affidavits of two coworkers—neither of whom
was involved in the decision to promote Vogel over Moore to the position of Team
Lead13—are insufficient to create a genuine issue of material fact regarding whether Moore
was clearly better qualified for the position than Vogel. In her affidavit, Moore avers that
she had been at the company longer than Vogel; that her production numbers were better than
Vogel’s; that in 2011 Vogel was transferred from the Vault Department to the Title
Department, but Vogel “lasted [over] there not even one day,” P. Ex. 1 at 3; that Moore had
received the Ruby Sapphire 9 out of 12 times in 2012; and that Vogel had numerous
production issues and avoided doing his own work. Even accepting these statements as true
and drawing all reasonable inferences in Moore’s favor, as the summary judgment
nonmovant, Moore has not provided the kind of apples-to-apples comparison that would
enable a reasonable jury to conclude that Moore was clearly better qualified for the Team
Lead position than Vogel. For example, Moore contends that she had received the Ruby
Sapphire 9 times out of 12 in 2012, but she provides no information on what the Ruby
Sapphire signifies or whether Vogel had received similar recognition for his work during that
year. Nor does Moore explain why any of the positive attributes she identifies in her
affidavit would make her a better choice—much less a “clearly better qualified”
candidate—for the Team Lead position than Vogel.14 And although Moore avers in her
Moore does not dispute that Cornejo and Stanaland made the decision to promote
Vogel to the position of Team Lead in October 2012.
Moore also states in her response:
Assuming: (1) Defendant actually had a 98% error free
requirement for QA standards, and (2) that team leads could not
make corrections before QAs, and (3) that no one had access to
affidavit that Vogel had numerous “production issues,” id., and avoided doing his own work,
she does not provide any detail regarding Vogel’s “production issues,” explain how these
alleged issues would impact Vogel’s ability to perform in the Team Lead position, or allege
that Cornejo or Stanaland—the two Capital One employees who made the decision to
promote Vogel over Moore—were aware of Vogel’s “production issues,” or that he avoided
doing his own work, when they decided to promote him to the Team Lead position.
Even if Moore’s summary judgment evidence were sufficient to create a fact issue on
the question whether Moore was clearly better qualified for the Team Lead position, under
the McDonnell Douglas burden-shifting framework, “[t]he ultimate question is whether the
employer intentionally discriminated.” Reeves, 530 U.S. at 146. “In other words, ‘[i]t is not
enough . . . to dis believe the employer; the factfinder must believe the plaintiff’s explanation
of intentional discrimination.’” Id. at 147 (alterations in original) (quoting St. Mary’s Honor
Ctr., 509 U.S. at 519). Here, Moore has failed to point to any evidence from which a
reasonable jury could find that Cornejo or Stanaland intentionally discriminated against
Moore based on her age or her race. Accordingly, the court grants Capital One’s motion for
summary judgment on Moore’s discrimination claims based on Capital One’s failure to
change any computer files; Plaintiff still precludes summary
judgment by showing that race and/or age were factors in
making the determinations of lack of training, failure to promote
P. Br. 15-16. This conclusory allegation, without any citation to evidence in the summary
judgment record, is insufficient to create a genuine issue of material fact on a mixed-motives
theory for Moore’s Title VII or TCHRA claims.
promote her to the Team Lead position.
Capital One moves for summary judgment on Moore’s termination-based
discrimination claims under Title VII, the ADEA, or the TCHRA on the ground that Moore
failed to exhaust her administrative remedies.
“It is well settled that courts may not entertain claims brought under Title VII as to
which an aggrieved party has not first exhausted his administrative remedies by filing a
charge of discrimination with the EEOC.” Kretchmer v. Eveden, Inc., 2009 WL 854719, at
*3 (N.D. Tex. Mar. 31, 2009) (Fitzwater, C.J.) (citing Taylor v. Books A Million, Inc., 296
F.3d 376, 378-79 (5th Cir. 2002); Bernard v. ATC VanCom, 2005 WL 139110, at *2 (N.D.
Tex. Jan. 20, 2005) (Fitzwater, J.)), aff’d, 374 Fed. Appx. 493 (5th Cir. 2010). “Exhaustion
occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice
of right to sue.” Taylor, 296 F.3d at 378-79. “This requirement serves the dual purposes of
affording the EEOC and the employer an opportunity to settle the dispute through
conciliation, and giving the employer some warning as to the conduct about which the
employee is aggrieved.” Hayes v. MBNA Tech., Inc., 2004 WL 1283965, at *3 (N.D. Tex.
June 9, 2004) (Fitzwater, J.) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44
(1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).
“The lawsuit that follows [a timely charge with the EEOC] is limited in scope to the
EEOC investigation that could reasonably be expected to grow out of the charge of
discrimination.” Id. (citing Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir.
1990)). “In other words, the complaint may encompass any kind of discrimination ‘like or
related to’ allegations contained in the EEOC charge.” Id. (quoting Sanchez, 431 F.2d at
466). This test strikes a balance between two competing Title VII policies.
On the one hand, because the provisions of Title VII were not
designed for the sophisticated, and because most complaints are
initiated pro se, the scope of an EEOC complaint should be
construed liberally. On the other hand, a primary purpose of
Title VII is to trigger the investigatory and conciliatory
procedures of the EEOC, in [an] attempt to achieve non-judicial
resolution of employment discrimination claims. Indeed, a less
exacting rule would also circumvent the statutory scheme, since
Title VII clearly contemplates that no issue will be the subject
of a civil action until the EEOC has first had the opportunity to
attempt to obtain voluntary compliance.
Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006) (internal quotation marks, citations,
emphasis, and brackets omitted).
“The exhaustion of administrative remedies requirement under the ADEA is nearly
identical to that of Title VII.” Evenson v. Sprint/United Mgmt. Co., 2008 WL 4107524, at
*6 (N.D. Tex. Aug. 21, 2008) (Fitzwater, C.J.) (citing 42 U.S.C. § 2000e-5; 29 U.S.C. §
626). “As with Title VII, the filing of a charge sets in motion the ADEA’s administrative
remedies, triggering the EEOC’s duty to promptly notify the complainant’s employer to
facilitate informal methods of conciliation.” Id. (citing § 2000e-5(b); § 626(d)).
And “[b]efore suing an employer under the TCHRA, an aggrieved employee must first
exhaust his administrative remedies by filing a complaint with the [Texas Workforce
Commission] ‘not later than the 180th day after the date the alleged unlawful employment
practice occurred.’” Black v. Dall. Cnty. Cmty. Coll. Dist., 2017 WL 395695, at *2 (N.D.
Tex. Jan. 30, 2017) (Fitzwater, J.) (citing Tex. Lab. Code Ann. § 21.202(a); Schroeder v. Tex.
Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991), overruled on other grounds by In re
United Servs. Auto. Ass’n, 307 S.W.3d 299 (Tex. 2010)).
Moore filed her EEOC Charge on February 22, 2013, alleging that she had been
discriminated against by being denied training opportunities and being passed over for a
promotion, and that she had been retaliated against by being given a poor performance
review after she reported the alleged discrimination. The EEOC dismissed Moore’s charge
and issued her a right-to-sue letter on April 15, 2014. Moore’s employment with Capital One
was terminated on June 3, 2014, more than fifteen months after Moore filed, and almost two
months after the EEOC dismissed, the EEOC Charge. Moore neither filed a supplemental
charge nor amended her charge to complain about her termination.
Capital One moves for summary judgment on Moore’s discrimination claims based
on her June 3, 2014 termination15 on the ground that Moore failed to exhaust her
administrative remedies related to her termination. Capital One contends that once the
Moore appears to allege the following claims based on her June 3, 2014 termination:
discrimination and retaliation, in violation of Title VII, the ADEA, and the TCHRA. Capital
One moves for summary judgment on the basis of failure to exhaust administrative remedies,
however, only with respect to Moore’s Title VII, ADEA, and TCHRA discrimination claims.
See D. Br. 30 (“Plaintiff cannot establish a claim for race or age discrimination based on her
termination as a matter of law because she failed to exhaust her administrative remedies to
be able to assert the claims).
EEOC dismissed Moore’s EEOC Charge on April 15, 2014, no actions occurring
thereafter—such as her termination—could have been investigated by the EEOC as a result
of the EEOC Charge, and that Moore cannot establish a claim for race or age discrimination
based on her termination as a matter of law because she failed to exhaust her administrative
remedies as to these claims. Moore responds that “the retaliation was continuing and that
the termination is part of that retaliation.” P. Br. 9 (emphasis added) (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).
In Morgan the Supreme Court held that “[a] discrete retaliatory or discriminatory act
‘occurred[,]’” for purposes of Title VII’s exhaustion requirement,16 “on the day that it
‘happened,’” and that “[a] party, therefore, must file a charge within either 180 or 300 days
of the date of the act or lose the ability to recover for it.” Morgan, 536 U.S. at 110; see also
id. at 113 (“discrete discriminatory acts [such as termination] are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.”). Although the
Court announced a different rule for hostile work environment claims—they are “different
in kind from discrete acts [since] [t]heir very nature involves repeated conduct,” id. at
115—Moore has not alleged a hostile work environment claim. And in her response brief,
she does not appear to contend that she has timely exhausted a discrimination claim (to the
42 U.S.C. § 2000e-5(e)(1) provides that “[a] charge under this section shall be filed
within one hundred and eighty days after the alleged unlawful employment practice
extent she even intended to bring such a claim) based on her termination. See P. Br. 9 (“the
retaliation was continuing and . . . the termination is part of that retaliation.” (emphasis
added)). Nor could she. She filed her single charge with the EEOC over fifteen months
before her termination. Accordingly, to the extent Moore alleges a termination-based Title
VII, ADEA, or TCHRA discrimination claim, the court grants Capital One’s motion for
summary judgment on the basis that Moore failed to timely exhaust her administrative
The court now turns to Moore’s retaliation claims.
Title VII, the ADEA, and the TCHRA each prohibit an employer from retaliating
against an employee who engages in a protected activity. See 42 U.S.C. § 2000e-3(a); 29
U.S.C. § 623(d); Tex. Lab. Code Ann. § 21.055 (West 2015). Because Moore relies on
circumstantial evidence to support her retaliation claims, as with her discrimination claims,
she must proceed under the McDonnell Douglas burden-shifting analysis. See, e.g., Royal
v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (“A retaliation claim
that is premised on a pretextual rationale for dismissal is analyzed under the McDonnell
Moore must demonstrate a prima facie case of retaliation by showing that (1) she
engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal
link existed between the protected activity and the adverse employment action. See, e.g.,
Walker v. Norris Cylinder Co., 2005 WL 2278080, at *9 (N.D. Tex. Sept. 19, 2005)
(Fitzwater, J.) (citing Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)). The burden
then shifts to Capital One to articulate a legitimate, nonretaliatory reason for the allegedly
retaliatory action taken. If Capital One meets its production burden, the burden shifts back
to Moore to produce evidence that would enable a reasonable jury to find that retaliation for
Moore’s protected conduct, rather than Capital One’s proffered legitimate, nonretaliatory
reason, was the “but-for cause” of the adverse employment action. See Univ. of Tex. Sw.
Med. Ctr. v. Nassar, ____ U.S. ___, 133 S.Ct. 2517, 2528 (2013) (“Title VII retaliation
claims require proof that the desire to retaliate was the but-for cause of the challenged
employment action.”); Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 488 (5th Cir. 2004)
(“[I]n [TCHRA] retaliation cases where the defendant has proffered a nondiscriminatory
purpose for the adverse employment action the plaintiff has the burden of proving that ‘but
for’ the discriminatory purpose he would not have been terminated.”); Sherrod v. Am.
Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (stating, in ADEA case, that “[t]he
ultimate issue of retaliation requires the employee to prove that the adverse employment
action would not have occurred ‘but-for’ the protected activity.”).
To the extent Moore bases her retaliation claims on conduct that predated her January
2013 complaint to Stanaland and the Associate Relations Department (“January 2013
Complaint”), or conduct that was in retaliation for an activity that is not protected by Title
VII, the ADEA, or the TCHRA, the court grants Capital One’s motion for summary
judgment on these claims.
In her complaint, Moore alleges that she was “deni[ed] training and promotion . . . out
of retaliation against Plaintiff,” Compl. ¶ 11. Capital One moves for summary judgement on
this claim, contending, inter alia, that Moore cannot establish a causal connection between
any protected activity and the denial of Team Lead training because she was denied Team
Lead training before she filed the January 2013 Complaint. In response, Moore fails to
adduce any contrary evidence. As a matter of law, Capital One could not have retaliated
against Moore on the basis of the January 2013 Complaint because the allegedly retaliatory
conduct (i.e., the denial of training and the failure to promote) occurred prior to the protected
activity (i.e., the January 2013 Complaint). And because Moore has failed to produce
evidence that would enable a reasonable jury to find that “but for” the January 2013
Complaint or some other protected activity, Moore would have been given Team Lead
training and/or a promotion to the position of Team Lead in October 2012, the court grants
Capital One’s motion for summary judgment on Moore’s retaliation claims based on this
Moore also alleges that “[a]bout one week after reporting discrimination to the human
resources department, [she] was given a poor performance review out of retaliation for her
report to human resources.” Compl. ¶ 14. Capital One moves for summary judgment on this
basis for Moore’s retaliation claim on the ground, inter alia, that even if Moore’s 2012
performance review constituted an adverse employment action, she still cannot show
causation between the rating she received on the review and her January 2013 Complaint
because it is undisputed that Cornejo completed and submitted the review before December
20, 2012, which was before Moore initiated her January 2013 Complaint. Moore has not
responded to this argument. Nor does she dispute that Cornejo completed and submitted
Moore’s 2012 performance review before she initiated the January 2013 Complaint. And
because the January 2013 Complaint is the only protected activity Moore alleges she engaged
in, she cannot establish a causal link between the January 2013 Complaint and her 2012
performance review as a matter of law. Accordingly, Capital One is entitled to summary
judgment dismissing Moore’s retaliation claim based on her 2012 performance review.
Finally, to the extent Moore contends that Cornejo treated her “harshly” during a
meeting in retaliation for Moore’s reporting his QA error years earlier, Capital One argues
that “reporting Cornejo’s alleged error in auditing her work [did not] constitut[e] a protected
activity under Title VII, the ADEA, or the [TCHRA] because it had nothing to do with her
race or age.” D. Br. 44. The court agrees. And because Moore has not adduced evidence
of any other protected activity for which Cornejo allegedly retaliated against her, the court
grants Capital One’s motion for summary judgment on Moore’s retaliation claim based on
Cornejo’s harsh treatment of her during a meeting.
The court now turns to Moore’s retaliation claims based on her termination. Moore
participated in a protected activity when she complained to Stanaland and Capital One’s
Associate Relations Department that she felt she had been denied training and a promotion
to the position of Team Lead because she was African-American and older. Moore was
subjected to an adverse employment action when she was terminated. Capital One contends
that Moore cannot establish a prima facie case of retaliation because, first, the decision to
terminate her employment was made by Gandara and Craig, both of whom were unaware of
Moore’s January 2013 Complaint, and, second, the extended period of time between the
January 2013 Complaint and Moore’s termination (approximately 15 months) is too
attenuated to establish the causal connection necessary for a retaliation claim. Moore
responds that her team lead, Dzhavadova, knew about the January 2013 Complaint, and that
“[b]y establishing that the team leads can correct the work without affecting the QAs raises
a question as to the validity of the assessments.” P. Br. 13.
Because the causal link requirement of a prima facie case is minimal,17 the court will
assume arguendo that Moore has satisfied it. Even so, she has not met her burden of
introducing evidence that would enable a reasonable trier of fact to find “but for” causation
at the third step of the McDonnell Douglas paradigm. A reasonable jury could not find that
Gandara and Craig’s decision to terminate Moore’s employment in June 2014 was motivated
“[T]he requirement that a plaintiff show at the prima facie case stage a ‘causal link’
between a protected activity and an adverse employment action is ‘much less stringent’ than
the ‘but[-]for’ causation that a jury must find.” Warner v. Lear Corp., 2017 WL 930829, at
*5 (N.D. Tex. Mar. 9, 2017) (Fitzwater, J.) (citing Montemayor v. City of San Antonio, 276
F.3d 687, 692 (5th Cir. 2001); Khanna v. Park Place Motorcars of Hous., Ltd., 2000 WL
1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.) (characterizing this prima facie case
burden as “minimal”)).
by Moore’s complaints to Stanaland and Capital One’s Associate Relations department 15
months earlier, in January 2013. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (per curiam) (“The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal proximity must be
‘very close.’” (citation omitted)). Moreover, Moore has not adduced evidence that creates
a genuine issue of material fact regarding whether Capital One’s stated reasons for her
termination—poor attitude and unsatisfactory performance—were pretextual.
As a preliminary matter, Capital One contends (and Moore neither disputes nor offers
contrary evidence) that the individuals who decided to terminate Moore’s
employment—Craig and Gandara—did not have any knowledge of Moore’s January 2013
Complaint at the time they made their termination decision. “If an employer is unaware of
an employee’s protected conduct at the time of the adverse employment action, the employer
plainly could not have retaliated against the employee based on that conduct.” Ackel v. Nat’l
Comm’cns, Inc., 339 F.3d 376, 386 (5th Cir. 2003) (quoting Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999)). Moore’s response to Capital One’s
argument on this point is that Dzhavadova knew about the January 2013 Complaint. But
Moore has not produce any evidence that Dzhavadova informed Gandara or Craig of
Moore’s January 2013 Complaint or that Dzhavadova had influence or leverage over them.18
Under a “cat’s paw” theory, which the court assumes arguendo could apply in the
context of Moore’s Title VII, ADEA, and TCHRA retaliation claims, “when the person
On this basis, alone, Capital One is entitled to summary judgment.
But even assuming arguendo that Craig or Gandara was aware of Moore’s January
2013 Complaint, Moore has still failed to show “but for” causation. In her affidavit, Moore
avers that although Capital One refers to performance reviews on issues of “communication
[t]his has no basis, as I communicated well within my team. I
assisted others and was concerned with the benefit of the
company. I feel that I helped the company do well. [Whenever]
I would ask what was meant by “better communication” Seth
Carillo would tell me that [whoever] I had pull files, they were
not putting them in order. After he would tell me that, I would
go back again and tell whomever I instructed to pull files and
correct them again. I would notice that they would not hold
themselves to the same standard for which they were
critici[z]ing me. I could tell they were just trying to come up
with something to keep jobs open for their friends.
P. Ex. 1 at 2-3. But Moore’s unsubstantiated opinion that she communicated well with the
team is insufficient to permit a reasonable jury to find that Gandara and Craig—the Capital
One employees who decided to terminate Moore’s employment—did not actually believe
that Moore had a poor attitude or that the “but for” cause of Moore’s termination was her
January 2013 Complaint.
conducting the final review serves as the ‘cat’s paw’ of those who were acting from
retaliatory motives, the causal link between the protected activity and adverse employment
action remains intact.” Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002) (citing Long, 88
F.3d at 307). The ultimate question is whether “the employee can demonstrate that others
had influence or leverage over the official decisionmaker.” Rios v. Rossotti, 252 F.3d 375,
382 (5th Cir. 2001) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.
Moreover, Moore does not dispute that, on numerous occasions, her QA monthly
average scores fell below the 98% required by Capital One’s “Vault Performance
Expectations.” Nor has she produced any evidence that she did not, in fact, commit the
errors that Tingdale found. Instead, Moore contends that Capital One relied on a “flawed and
subjective system of [QA] evaluations,” P. Br. 11; that “[t]hese processes are flawed because
the final number can easily be modified by having the person making the evaluation step into
the process at numerous phases, at their sole discretion,” id.; and that
team leads and others have access to the computer information
which logs the activity of the associates. Therefore, the
information regarding who has handled a file can be changed.
This was a problem for numerous employees. The changing of
information impacted QAs and award recognition for temps and
permanent employees alike.
In her affidavit, Moore states:
The QAs mentioned at the time of my termination was based on
management taking control of my work files. When we could
not find things, they started claiming that if they could find it, I
should have been able to find it. I had never had any type of lost
issue like that as part of review. There had always been
documents in the lost/missing cue and it had never been an
issue. At the time I left, there were still documents in the cue
related to others not me. The resulting QAs after I reported the
discrimination to HR were all retaliatory and discriminatory.
P. Ex. 1 at 4. But Moore has failed to present any evidence—other than her own unsupported
speculation—from which a reasonable jury could find that someone “tampered with” her QA
scores in retaliation for her January 2013 Complaint. See Brown v. City of Houston, 337 F.3d
539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary judgment.”).
In sum, Moore has failed to create a genuine fact issue on the ultimate question of
“but-for” causation. She has failed to introduce evidence that would enable a reasonable jury
to find that the proffered reasons for her termination—poor attitude and unsatisfactory
performance—were not the real reasons Capital One terminated her. And Moore neither
contends nor has introduced evidence that she would not have been terminated “but for” her
complaint to HR 15 months earlier. In other words, based on the evidence in the summary
judgment record, no reasonable jury could find that Moore’s January 2013 Complaint to HR
was the but-for cause of her termination.
Accordingly, the court concludes that Capital One is entitled to summary judgment
dismissing Moore’s retaliation claims.
For the reasons explained, the court grants Capital One’s motion for summary
judgment, denies Capital One’s motions to strike as moot, and dismisses this action with
prejudice by judgment filed today.
June 13, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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