Hull v. KapStone Container Corporation
Filing
44
MEMORANDUM OPINION AND ORDER granting Defendant's 19 Motion for Summary Judgment on all of Plaintiff's state law claims for retaliation, failure to accommodate, age discrimination, and disability discrimination. (Ordered by Judge Ed Kinkeade on 9/17/2018) (zkc)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KIMBERLY HULL,
Plaintiff,
v.
KAPSTONE CONTAINER
CORPORATION,
Defendant.
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Civil Action No. 3:17-CV-0641-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 19).
The Court has carefully considered the motion, the response, the reply, the supporting
appendices, the applicable law, and any relevant portions of the record. Plaintiff failed
to meet her burden of creating a genuine issue of material fact that her disability and/or
age was a motivating factor in Defendant’s decision to terminate her; therefore, the
Court GRANTS Defendant’s motion for summary judgment.
I.
Factual Background
In November 2011, Defendant Kapstone Container Corporation (“Defendant”)
acquired U.S. Corrugated, Inc., which employed Plaintiff Kimberly Hull (“Plaintiff”)
at its facility located in Mesquite, Texas. After the acquisition, Plaintiff continued her
ORDER – PAGE 1
employment with Defendant, working in Human Resources. During her time working
for Defendant, Plaintiff had no issues until November 2015. Early that month, a
warehouse employee at the Mesquite facility threatened Plaintiff, which made her feel
afraid.
Plaintiff reported the threat to Mr. Marvin Gasper, the Mesquite Plant
Manager. Then, on November 17, 2015, Plaintiff found a bullet hole in her office
window when she arrived at her office. Plaintiff recalled that previous threat and
reminded Marvin Gasper of it when she found the bullet hole. The same day Plaintiff
found the bullet hole, Mr. Brian Gasper, a Shift Shipping Supervisor, told Plaintiff he
had seen a man inside the warehouse the night before and saw the man open a door to
one of Defendant’s tractors. An inventory of the tractors was then done and one tractor
was found to be missing.
Plaintiff remained concerned and fearful for her own safety. Several employees
at the Mesquite facility made remarks, jokes, and comments to Plaintiff about the
bullet hole and her ensuing fear, including asking who wanted her dead. As a result of
everything, Plaintiff contends she was unable to sleep and suffered panic attacks,
including one at work in front of Marvin Gasper. Plaintiff claims Marvin Gasper and
Mr. Bernard Lawrence, the Mesquite facility General Manager, disregarded and
dismissed her concerns and told her to “get over it.”
ORDER – PAGE 2
On April 1, 2016, Defendant terminated Plaintiff’s employment as part of a
company-wide Reduction-in-Force (“RIF”). At the time of her termination, Plaintiff
was 55 years old. On April 4, 2016, Plaintiff was evaluated by Dr. J. Douglas Crowder,
who diagnosed her with post-traumatic stress disorder (“PTSD”), major depressive
disorder, and possible obsessive compulsive disorder. On January 27, 2017, Plaintiff
filed this lawsuit against Defendant in state court alleging state law claims of disability
discrimination, age discrimination, retaliation, and failure to accommodate. Defendant
subsequently removed the case to this Court based on diversity jurisdiction and filed
this motion for summary judgment.
II.
Summary Judgment Standards
Summary judgment is appropriate when the pleadings, affidavits and other
summary judgment evidence show that no genuine issue of material fact exists, and the
moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the burden of production at trial
ultimately rests on the nonmovant, the movant must merely demonstrate an absence
of evidentiary support in the record for the nonmovant’s case. The nonmovant must
then come forward with specific facts showing that there is a genuine [dispute] for
trial.” Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 310-11 (5th Cir.
2011). In other words, the plaintiff must show there is a dispute of a material fact that
ORDER – PAGE 3
is “genuine”, meaning the evidence is such that a reasonable jury could return a verdict
in favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
evidence and reasonable inferences must be viewed in the light most favorable to the
nonmovant, and all disputed facts resolved in favor of the nonmovant. See United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux v. Swift Transp. Co., Inc.., 402 F.3d
536, 540 (5th Cir. 2005).
The moving party bears the burden of identifying those portions of the record it
believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S.
at 322-25.
Once the movant satisfies his burden, the nonmovant must present
competent summary judgment evidence showing a genuine fact issue for trial exists.
Id. at 321-25; Anderson, 477 U.S. at 255-57. To meet this burden, the nonmovant may
not rest on the pleadings, but must designate specific facts in the record establishing a
genuine issue of material fact exists. Celotex, 477 U.S. at 325; Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). The nonmovant may satisfy this burden
by providing depositions, affidavits, and other competent evidence; not with
“conclusory allegations, speculation, and unsubstantiated assertions.”
Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Conclusory
allegations, unsubstantiated assertions, or a mere scintilla of evidence cannot defeat a
motion for summary judgment. See Anderson, 477 U.S. at 249-52; Boudreaux, 402 F.3d
ORDER – PAGE 4
at 540. If the nonmovant fails to make a sufficient showing to prove the existence of
an essential element to the case and on which the nonmovant will bear the burden of
proving at trial, summary judgment must be granted. Celotex, 477 U.S. at 322.
“Even if there is a dispute regarding some material facts, a movant may obtain
summary judgment if he can prove there is no evidence to support one or more essential
elements of the non-moving party’s claim.” Walker v. Geithner, 400 F. App’x 914, 916
(5th Cir. 2010)(per curium)(citing Celotex, 477 U.S. at 323-25). However, “[i]t is not
sufficient to merely list the elements of the claims and state that there is no evidence
to support the elements.” Seastruck v. Darwell Integrated Tech., Civ. No. 3:05-CV-0531BF, 2008 WL 190316, at *3 (N.D. Tex. Jan. 22, 2008) (Stickney, M.J.). The movant
must cite to the record to demonstrate a lack of evidence that supports the
nonmovant’s claims. Id.
III.
Analysis
A.
Claims for Failure to Accommodate and Retaliation
Defendant moves for summary judgment on each of Plaintiff’s state law claims
asserted in her Original Petition—(1) disability discrimination, (2) age discrimination,
(3) retaliation, and (4) failure to accommodate. However, in her response to the
motion, Plaintiff fails to address Defendant’s summary judgment arguments related to
her claims for retaliation and for failure to accommodate. When a party fails to respond
ORDER – PAGE 5
to an argument in the opposing party’s motion for summary judgment, the party
concedes that argument. D&M Specialties, Inc. v. Apache Creek Props., L.C., Civil Action
No. SA-12-CA-588-FB, 2014 WL 12493290, at *3 (W.D. Tex. Aug. 21, 2014)(citing
T&T Geotechnical, Inc. v. Union Pac. Res. Co., 944 F. Supp. 1317, 1322 (N.D. Tex.
1996)(McBryde, J.)). Therefore, in failing to respond, Plaintiff concedes Defendant’s
summary judgment points on these two claims in its motion.
Nevertheless, the Court reviewed Defendant’s arguments, the applicable law,
and the evidence Defendant presented in support of summary judgment on these
claims. The Court finds Defendant is entitled to summary judgment on Plaintiff’s state
law claims for failure to accommodate and for retaliation.
B.
Disability and Age Discrimination Claims
Turning to Plaintiff’s discrimination claims, she alleges Defendant discriminated
against her based on her disabilities, PTSD and anxiety, as well as her age in violation
of the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code §
21.001 et seq. In its motion, Defendant argues summary judgment must be granted on
these claims because Plaintiff cannot establish a prima facie case for either disability
discrimination or age discrimination and, alternatively, she cannot establish
Defendant’s reason for her termination is pretext. Plaintiff responds that she satisfied
ORDER – PAGE 6
the elements of a prima facie case for both discrimination claims and she has established
Defendant’s proffered reason for her termination is pretext for discriminatory intent.
1.
Applicable Law
Section 21.051 of the Texas Labor Code specifically provides:
An employer commits an unlawful employment practice if
because of race, color, disability, religion, sex, national origin, or
age the employer: (1) fails or refuses to hire an individual,
discharges an individual, or discriminates in any other manner
against an individual in connection with compensation or the
terms, conditions, or privileges of employment. . . .
TEX. LABOR CODE § 21.051. The Texas Legislature intended Chapter 21 of the Labor
Code and its subsequent amendments to “provide for the execution” of federal law
under Title VII of the Civil Rights Act of 1964 and subsequent amendments, the Age
Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act
of 1990 and subsequent amendments (“ADA”). Id. § 21.001; see Wal-Mart Stores, Inc.
v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). Accordingly, Texas state courts apply
analogous federal statutes and cases when interpreting the TCHRA. Talk v. Delta
Airlines, Inc., 165 F.3d 1021, 1024 n. 4 (5th Cir. 1999); Hoffmann-La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004)(“[F]ederal case law may be cited as
authority in cases relating to the Texas Act.”).
When a plaintiff relies on circumstantial evidence of discrimination, courts apply
the McDonnell Douglas burden-shifting framework to discrimination claims under the
ORDER – PAGE 7
TCHRA. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex.
2012)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The plaintiff
must first establish a prima facie case of discrimination. Tex. Dep’t Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981); see Mission, 372 S.W.3d at 634. This burden is
“not onerous” and, when satisfied, creates a presumption of discrimination. Burdine,
450 U.S. at 253-54. Once the plaintiff meets her burden, it then shifts to the defendant
to articulate a legitimate, non-discriminatory reason for the termination. Id. at 25455. When the defendant satisfies that burden, the presumption of discrimination is
rebutted “and the factual inquiry proceeds to a new level of specificity.” Id. at 255-56.
The plaintiff must then create a genuine issue of material fact that the defendant
intentionally discriminated against the plaintiff. Reed v. Neopost USA, Inc., 701 F.3d
434, 439 (5th Cir. 2012). To satisfy this burden under the TCHRA, the plaintiff can
identify or offer evidence “either (1) the reason stated by the employer was a pretext
for discrimination, or (2) the defendant’s reason, while true, was only one reason for
its conduct and discrimination is another motivating factor (‘mixed motive’).” Id. at
439-40 (citing Michael v. City of Dallas, 314 S.W.3d 687, 691 (Tex.App.—Dallas, 2010,
no pet.)).
ORDER – PAGE 8
2.
Analysis
Because the Court ultimately concludes that Plaintiff failed to create a genuine
issue of material fact that Defendant’s reason for terminating her was pretext and that
her disability and/or age was a motivating factor in her termination, the Court assumes
without deciding that she has established a prima facie case of disability discrimination
and age discrimination. The Court now turns to the second and third steps of the
McDonnell Douglas framework.
a) Legitimate, Non-Discriminatory Reason
At the second step, Defendant must articulate a legitimate, non-discriminatory
reason for Plaintiff’s termination.
Burdine, 450 U.S. at 254-55.
The burden for
Defendant to articulate a legitimate, non-discriminatory reason for Plaintiff’s
termination “is one of production, not proof, and involves no credibility assessments.”
Thomas v. Greystar Mgmt. Servs., L.P., Civ. Action No. 3:12-CV-5088-D, 2014 WL
2519165, at *3 (N.D.Tex. June 4, 2014)(Fitzwater, C.J.).
Defendant asserts that Plaintiff was laid off on April 1, 2016, as part of a
company-wide RIF, in which over 60 employees were laid off. Defendant presented
competent summary judgment evidence that Plaintiff was employed in a Human
Resources Assistant (“HRA”) position at Defendant’s Mesquite facility. This HRA
position was eliminated company-wide in the RIF, resulting in the termination of all
ORDER – PAGE 9
four (4) employees who held that position, including Plaintiff. Defendant submitted
the sworn declaration of Ms. Irina Feldman, Senior Human Resources Director for
Defendant. Ms. Feldman testified that, in response to negative financial results in
2015, Defendant “implemented several cost cutting measures, including suspending
certain employee benefits such as the 401(k) match and consolidating positions and
reducing headcount” throughout the company. As part of these cost cutting measures,
the Corporate Senior Management, located at Defendant’s headquarters in
Northbrook, Illinois, decided the RIF was necessary. Ms. Feldman testified that she
was the sole decision maker regarding the Human Resources position(s) to be
eliminated, consolidated, or reduced, and one of her decisions included the companywide elimination of the HRA position, resulting in the termination of all four of those
employees including Plaintiff. Ms. Feldman also testified that she has always worked
at Defendant’s corporate headquarters in Northbrook, Illinois, and Plaintiff worked at
the Mesquite facility.
It is well-established in the Fifth Circuit that “a RIF ‘is itself a legitimate, nondiscriminatory reason for discharge.’” Claiborne v. Recovery Sch. Dist., 690 F. App’x 249,
257 (5th Cir. 2017)(quoting E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th
Cir. 1996)); see Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 150 (5th Cir.
1995)(“Job elimination or office consolidation is a sufficient non-discriminatory reason
ORDER – PAGE 10
for discharge under the ADEA.”). Defendant’s competent summary judgment evidence
shows Plaintiff was terminated as part of a company-wide RIF, in which over 60
employees were terminated, and all HRAs were eliminated from the company
nationally.
The Court concludes Defendant has met its burden of articulating a
legitimate, non-discriminatory reason for Plaintiff’s termination.
b) Intentional Discrimination
With Defendant satisfying its burden to provide a non-discriminatory reason,
the burden now shifts back to Plaintiff. Reed, 701 F.3d at 439. Plaintiff must create a
genuine issue of material fact of intentional discrimination by showing “‘either (1) the
reason stated by the employer was a pretext for discrimination, or (2) the defendant’s
reason, while true, was only one reason for its conduct and discrimination is another
motivating factor (“mixed motive”).’” Id. at 440 (quoting Michael, 314 S.W.3d at 691).
Because Plaintiff’s claims are based on the TCHRA, the causation inquiry at this third
stage is different than for claims under the ADA or ADEA. See Reed, 701 F.3d at 440.
Plaintiff can survive summary judgment by producing evidence that her age and/or
disability was a “motivating factor” in Defendant’s decision to terminate her, rather
than the higher ‘but for’ standard under the ADA and ADEA. See Quantum Chem. Corp.
v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001)(“‘[A] motivating factor’ is the correct
standard of causation for the plaintiff in all TCHRA unlawful employment practice
ORDER – PAGE 11
claims.”); see also Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607
(5th Cir. 2007)(“Under the Texas statute, to establish an unlawful employment
practice, [the plaintiff] need only prove that discrimination was ‘a motivating factor’
in the employer’s decision, rather than a ‘but for’ cause as Title VII requires.”).
1) Pretext for Discrimination
Plaintiff’s responsive argument asserts only that Defendant’s proffered reason
for terminating her is pretext for discrimination. Therefore, the Court will first consider
Plaintiff’s arguments and burden at this stage under the pretext alternative she
advanced, before turning to the lower “motivating factor” standard.
Plaintiff offers the following as her pretext argument:
[Plaintiff] establishes pretext as follows:
(1)
The position was not eliminated, it was just
renamed and given to a young man;
(2)
[Plaintiff] was clearly more qualified than Moza;
(3)
Feldman was impeached by claiming the position
required a degree when it does not;
(4)
[Plaintiff’s]
position
was
clearly
not
administrative as alleged;
(5)
[Mr. Marvin] Gasper knew of [Plaintiff’s] panic
attacks contrary to his assertion;
(6)
[Plaintiff] had a spotless work record and was
much more than just a H.R. Assistant;
(7)
The layoff for many was temporary and not as the
Defendant alleges;
(8)
The Defendant only laid the Plaintiff off at the
Mesquite facility and no one else;
ORDER – PAGE 12
(9)
(10)
(11)
(12)
[Plaintiff] was a Human Resources Manager,
Safety Specialist, Investigator, and DOT
Compliance Officer;
The Defendant’s declarants were seriously
impeached with the emails and job descriptions
as well as their claim Plaintiff’s position was just
administrative;
The Defendant’s declarants aren’t worthy of
belief;
This is all established by Plaintiff’s Appendix.
None of these statements creates a genuine issue of material fact as to whether
Defendant’s decision to implement a company-wide RIF in 2015 that included the
elimination of Plaintiff’s position was pretext for discrimination or even that her
termination was motivated by her disability and/or age.
First, the Court notes that Plaintiff wholly failed to provide specific citations to
her appendix or the record in support of these conclusory points she claims establish
pretext and, thereby, satisfy her burden. At the end of her laundry list of “evidence”
of alleged pretext, Plaintiff simply states, “This is all established by [her] Appendix.”
While Plaintiff may have cited to her appendix in other sections of her brief, she did
not actually cite to her summary judgment evidence which is the actual support for this
list of pretext evidence. It is not the Court’s responsibility to search for possible
evidentiary support. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006)(Rule 56 does not impose upon the district court a duty to sift through the
record in search of evidence to support a party’s opposition to summary judgment).
ORDER – PAGE 13
On this basis alone, the Court could find Plaintiff failed to meet her burden and grant
Defendant’s motion for summary judgment on her remaining discrimination claims.
Nevertheless, the Court liberally construed Plaintiff’s arguments, considered any
actual record citations, and viewed the evidence in its entirety and in the light most
favorable to Plaintiff. Ultimately, the Court must find Plaintiff failed to meet her
summary judgment burden. “To establish pretext, a plaintiff ‘must put forth evidence
rebutting each of the non-discriminatory reasons the employer articulates.’” Jurach v.
Safety Vision, LLC, 642 F. App’x 313, 320 (5th Cir. 2016). The Fifth Circuit has
repeatedly “held that an employee’s ‘subjective belief of discrimination’ alone is not
sufficient to warrant judicial relief.” Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400,
403 (5th Cir. 2001)(quoting Bauer v. Albemarie Corp., 169 F.3d 962, 967 (5th Cir.
1999)).
Even if the Court took Plaintiff’s statements as true and supported by
evidence, she still fails to meet her burden. Defendant’s evidence establishes, among
other things, the following: (1) negative economic results necessitated the RIF (among
other cost-cutting measures), in which over 60 employees were terminated; and (2) Ms.
Feldman, the sole decision maker located in Illinois, chose to eliminate the HRA
position company-wide, resulting in the termination of four employees, including
Plaintiff. The Court has already concluded Defendant articulated a legitimate, nondiscriminatory reason.
ORDER – PAGE 14
In response, Plaintiff submits a laundry list of conclusory
statements which does not rebut Defendant’s non-discriminatory reason, and she fails
to provide any evidence supporting her contention that the RIF was not true and was
mere pretext for Defendant to discriminate against her by terminating her. Plaintiff
creates a fact issue regarding pretext.
Plaintiff’s response is not a model of clarity, so the Court attempted to discern
her pretext arguments best it could. Plaintiff makes three points that arguably may
address the RIF and pretext. First, Plaintiff makes a cursory statement that the layoffs
were actually temporary “and not as the Defendant alleges.” As her only support for
this contention, Plaintiff submits a very short, unidentified “Web Only” article
published December 30, 2015, which discusses a seasonal temporary layoff at one of
Defendant’s plants in Washington.
Even if this article were competent summary
judgment evidence, which the Court does not find, Plaintiff makes no attempt to
explain how this seasonal layoff in December 2015 is connected to the RIF at issue
here, let alone how it is evidence that the RIF is not true and mere pretext.
Second, Plaintiff repeatedly contends that the HRA position was not actually
eliminated but was simply re-named Human Resources Manager (“HRM”) and given
to a 30-year-old man even though she was more qualified for the position. Again,
Defendant’s competent summary judgment evidence establishes that the HRA position
was eliminated company-wide, resulting in the termination of all four (4) employees in
ORDER – PAGE 15
that position nationally in this RIF. Moreeover, the RIF was part of various costcutting measures taken by Defendant as a result of negative financial results in 2015.
Plaintiff’s own evidence confirms that the other three employees in the HRA position
were indeed terminated as well. Yet, Plaintiff fails to explain how it was that her
position was simply renamed and given to a younger man. These contentions are simply
Plaintiff’s subjective belief that this is what happened and it amounts to pretext. Her
subjective beliefs alone are not sufficient evidence of pretext. Auguster, 249 F.3d at
403. Plaintiff submits no competent summary judgment evidence to support her claim
that the HRA position was simply renamed, and was not subject to elimination as part
of a RIF. See Jurach, 642 F. App’x at 320.
Even if the Court indulged this allegation, Plaintiff fails to establish that the
HRA position and the HRM position were indeed the same. The HRM position was
created, at some unknown point later, to absorb some of the administrative HR duties
and also to perform the HR managerial functions needed at certain locations.
Defendant presented evidence that the HRM position had more hiring requirements
than the HRA position, such as a four-year college degree and prior experience as a
human resources manager. It is undisputed Plaintiff does not have a four-year college
degree, and Defendant’s evidence establishes that Plaintiff did not have the required
prior managerial experience. Plaintiff contends the HRM position did not require a
ORDER – PAGE 16
four-year college degree and submitted a job posting from Defendant as evidence. But
the posting Plaintiff provided is for a Human Resources Generalist (in Idaho), not a
Human Resources Manager (in Mesquite, Texas) which is at issue here. As for the
required prior experience as an HR manager, Plaintiff offers no evidence to refute
Defendant’s competent evidence that the HRM position does require this prior
experience and that she did not, according to Defendant, have that experience. Finally,
any argument Plaintiff makes based on her subjective beliefs about her skills or
qualifications, and particularly any comparison between her own qualifications and
those of the 30 year old man hired to fill the HRM position, cannot alone raise a
genuine fact issue as to pretext. See Adeleke v. Dallas Area Rapid Transit, 487 F. App’x
901, 903 (5th Cir. 2012); see also Baumeister v. AIG Global Inv. Corp., Civ. Action No.
H-09-1533, 2010 WL 11541794, at * 4 (S.D. Tex. Aug. 2, 2010)(an employee’s
subjective belief that she was “clearly more qualified” for the position than the person
hired cannot, without more, overcome her burden of demonstrating the RIF was pretext
for intentional discrimination). Plaintiff fails to create a fact issue of pretext with this
argument.
As the final, possible pretext argument the Court can discern, Plaintiff states
that only she was laid off at the Mesquite facility. The Court presumes that Plaintiff
is implying the RIF was not the reason for her termination, therefore it was pretext for
ORDER – PAGE 17
Defendant to discriminate against her for her disability and/or age. Again, Plaintiff
fails to explain how this fact is relevant to or evidence of pretext. Defendant’s evidence
establishes that her position was eliminated company-wide as part of the RIF due to
negative financial results in 2015, and Plaintiff alone was employed in that position at
the Mesquite facility although over 60 employees were terminated nationwide as part
of this RIF. The other three HRAs were located at other facilities, and they too were
terminated. Plaintiff submits no evidence to create a genuine issue of material fact.
That Plaintiff was the only person terminated as part of the RIF at the Mesquite facility
is truly no evidence that the RIF was not true and was mere pretext. See Jurach, 642 F.
App’x at 320.
Plaintiff failed to present competent summary judgment evidence to rebut
Defendant’s proffered non-discriminatory reason that she was terminated as part of the
company-wide RIF that resulted in the elimination of her position entirely and in the
termination of over 60 employees. See Jurach, 642 F. App’x at 320 (“[P]laintiff must
put forth evidence rebutting each of the non-discriminatory reasons the employer
articulates.”).
2) Motivating Factor Standard
In addition to failing to rebut Defendant’s non-discriminatory reason for her
termination, Plaintiff failed to even meet the “motivating factor” standard. Because
ORDER – PAGE 18
her claims are a based on the TCHRA, Plaintiff could avoid summary judgment by
submitting competent summary judgment evidence that her disability and/or age was
a motivating factor in Defendant’s decision to terminate her. See id. at 321; Quantum
Chem., 47 S.W.3d at 480.
However, outside of making a single reference to the
“motivating factor” standard, Plaintiff makes no specific argument as to how her
disability or age was a motivating factor in her termination.
Again, being indulgent with Plaintiff’s response, she submits no argument or
evidence as to how her age was a motivating factor in her termination. Plaintiff appears
to imply that simply because she and the other three HRAs are in the protected age
bracket that alone is evidence of age discrimination. The Court can find no case law,
and Plaintiff does not cite any, to support the premise that falling within the protected
age group, without more, is sufficient evidence that her age was a motivating factor in
her termination.
Moreover, Defendant’s competent summary judgment evidence
establishes Ms. Feldman, the sole decision maker, did not consider Plaintiff’s age in
making her decision to terminate Plaintiff or eliminate her position. Plaintiff submits
nothing to refute this evidence or attempt to create a fact question.
To the extent Plaintiff may rely on the age of the man hired as the HRM, this is
also not, without more, evidence that her termination was motivated by her age.
Plaintiff’s contention that Mr. Mukunz Moza, the 30-year-old man hired as HRM, is
ORDER – PAGE 19
less qualified than she is for the position is not substantiated by any competent
summary judgment evidence. For the Court to find there is “an illicit inference” from
Mr. Moza’s hiring would “require[] the Court to make subjective and speculative
conclusions regarding [Plaintiff’s] qualifications for the job.” Jurach, 642 F. App’x at
321. Plaintiff did not establish that her age was a motivating factor in Defendant’s
decision to terminate her.
Turning to her disability, Plaintiff claims her panic attacks were “well known”
and that she was made fun of by co-workers and supervisors. The extent of Plaintiff’s
argument addresses what her co-workers, supervisors, and/or managers at the Mesquite
facility knew of her disabilities and the anxiety attack she claims to have suffered at
work in front of the Mesquite plant manager.
Defendant’s competent summary
judgment evidence shows that Ms. Feldman, who works at Defendant’s headquarters
in Illinois, was the final decision maker regarding the elimination of Plaintiff’s position
and her termination, and no one at the Mesquite facility had any input in or
involvement with that decision.
Ms. Feldman further testified that she had no
knowledge Plaintiff suffered from any disability or impairment, that she did not regard
Plaintiff as disabled, and that she did not consider Plaintiff’s actual disability, or
perceived disability in making her decision.
Plaintiff offers nothing to refute
Defendant’s summary judgment evidence that age played no part in Defendant’s
ORDER – PAGE 20
decision. Even taking Plaintiff’s statements as true and supported by evidence, her
statements alone fail to raise a genuine issue of material fact that her age was a
motivating factor in Defendant’s decision to terminate her. Plaintiff did not submit
any evidence raising a fact issue that her disability was a motivating factor for her
termination. See Jurach, 642 F. App’x at 321.
Ultimately, Plaintiff did not produce any evidence that would allow a reasonable
factfinder to find that Defendant’s proffered reason for terminating Plaintiff is
pretextual. See id. Moreover, Plaintiff cannot survive summary judgment because she
failed to produce evidence that her age and/or disability was a “motivating factor” in
Defendant’s decision to terminate her.
See Quantum Chem., 47 S.W.3d at 480.
Defendant is entitled to summary judgment on Plaintiff’s disability discrimination and
age discrimination claims.
ORDER – PAGE 21
IV.
Conclusion
For the foregoing reasons, the Court grants Defendant’s motion for summary
judgment on all of Plaintiff’s state law claims for retaliation, failure to accommodate,
age discrimination, and disability discrimination.
SO ORDERED.
Signed September 17th, 2018.
______________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
ORDER – PAGE 22
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