McIntyre v. Ben E. Keith Company
Memorandum Opinion and Order: Came on for consideration the motion of defendant, Ben E. Keith Company, for summary judgment. Plaintiff, Diane Mcintyre, failed to respond to the motion, which is ripe for ruling. After having considered the motion, the record, the summary judgment evidence, and applicable legal authorities, the court has concluded that defendant's motion should granted. The court ORDERS that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed with prejudice. (Ordered by Judge John McBryde on 10/13/2017) (edm)
U.S. DISTRICT COURT
NORTIIERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TEX
FORT WORTH DIVISION
CLERK, U.S. DJ!SUdCT C:Ol.JID'
BEN E. KEITH COMPANY,
Came on for consideration the motion of defendant, Ben E.
Keith Company, for summary judgment.
Plaintiff, Diane Mcintyre,
failed to respond to the motion, which is ripe for ruling. 1
After having considered the motion, the record, the summary
judgment evidence, and applicable legal authorities, the court
has concluded that defendant's motion should granted.
The following is a summary of plaintiff's alleged claims:
Defendant is a food and beverage distribution company
operating in Tarrant County, Texas.
Plaintiff, an African
Plaintiffhas made several attempts to file a response, including two motions for leave to file a
late response, to defendant's motion for summary judgment. Each time, the document(s) filed by
plaintiff have been unfiled for failure to comply with the requirements of the January 30, 2017 Status
Reprni Order and/or the Local Civil Rules for the United States District Comt for the Northern District of
Texas. As a result of these unfilings, the record is devoid of any response by plaintiff to defendant's
motion for summary judgment.
American woman, worked as a backhaul driver for defendant from
June 2014 until March 14, 2016.
Plaintiff's claims are brought
against defendant under Title VII of the Civil Rights Act of
1964, 42 U.S.C.
2000e, et seq.
She alleged that
(1) she was the victim of discrimination by defendant based on
her race and gender,
(2) she suffered a continued pattern of
discriminatory conduct, harassment, and a hostile work
environment at the hands of defendant by reason of her race and
gender, and (3) defendant retaliated against her in violation of
Title VII when it terminated her for questioning its
discriminatory policies and procedures
Grounds of the Motion
Defendant succinctly summarizes the grounds of its motion as
Plaintiff's claims should be dismissed as a matter
of law because Plaintiff cannot prove her prima face
[sic] case of gender and race discrimination under
Title VII. Plaintiff cannot produce evidence that she
was treated less favorably than similarly situated
employees outside of her gender and race. BEK is also
entitled to summary judgment on Plaintiff's hostile
work environment claims based on her gender and race
because Plaintiff has no evidence that she was
subjected to any unwelcome harassment based on her
gender or race, let alone that such alleged harassment
affected a term, condition, or privilege of her
employment. Finally, Plaintiff cannot satisfy the
elements of her retaliation claim because she has no
evidence that she engaged in any activity protected
under Title VII and, even assuming she engaged in such
protected activity, Plaintiff has no evidence to
support a causal connect.ion between her termination and
However, even .if the Court were to
assume that Pla.int.if f met her pr.ima fac.ie burden (which
she cannot), BEK has articulated a legitimate, nondiscriminatory reason for .its dee.is.ion (.i.e. that
Pla.int.if f was .insubordinate and did not follow company
To avoid summary judgment, Plaintiff must
.introduce substantial evidence showing that BEK's
proffered reason was false and pretext for
discrimination. Plaintiff cannot meet her burden for
one simple reason: there .is no evidence that BEK
considered Plaintiff's race, gender, or engagement .in
any protected activity in its decision to terminate her
employment. Under these circumstances, Plaintiff cannot
meet her ultimate burden of proof, and her claims
should be dismissed as a matter of law.
Doc. 14 at 16. 2
Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure prov.ides
that the court shall grant summary judgment on a claim or defense
.if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
P. 56(a); Anderson v. Liberty Lobby,
Fed. R. Civ.
Inc., 477 U.S. 242, 247
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
" references are to the numbers assigned to the referenced items on the docket in
this Case No. 4:16-CV-1134-A.
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
Id. at 324; see also Fed. R. Civ. P. 56 (c)
asserting that a fact
the assertion by
is genuinely disputed must support
citing to particular parts of materials in
• If )
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
The standard for granting a
motion for summary judgment is the same as the standard for
rendering judgment as a matter of law.
Celotex CQ.£Q_,_, 477 U.S.
If the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no
genuine issue for trial.
at 597; see also
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)
(explaining the standard to be applied in determining
whether the court should enter judgment on motions for directed
verdict or for judgment notwithstanding the verdict) .
Plaintiff's Gender and Race Discrimination Claims
Title VII makes it unlawful for employers nto fail or refuse
to hire or to discharge any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual's race
When there is no direct evidence supporting a
Title VII discrimination claim, a violation of Title VII may be
proved using circumstantial evidence.
Chems. Corp., 492 F.3d 589, 593
Nasti v. CIBA Specialty
(5th Cir. 2007).
In such cases,
the court evaluates discrimination claims under the same general
burden-shifting framework originally set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
This framework first requires plaintiff to make a prima facie
showing of discrimination.
This burden is merely one of
production, not persuasion.
Because plaintiff has offered no direct evidence of gender
or racial discrimination,
she must make a prima facie
discrimination case by showing that she:
(1) is a member of a
(2) was qualified for the position;
(3) was the
subject of an adverse employment action; and (4) was treated less
favorably than other similarly situated employees outside of her
Defendant does not dispute that plaintiff has satisfied the
first three elements of her prima facie case of race and gender
However, defendant maintains, and the court
agrees, that plaintiff has not adduced evidence in support of the
fourth element, which requires her to show that similarly
situated individuals outside of her protected class were treated
To satisfy the "similarly situated" requirement, the
circumstances of the plaintiff and her comparator must be more
than similar, they must be "nearly identical."
Washington Mut. Bank, 500 F.3d 344, 353
(5th Cir. 2007).
"alleged comparator employees [must have been) similarly situated
from the perspective of their employer at the time of the
relevant employment decisions[.)" Perez v. Texas Dep't of
Criminal Justice, 395 F.3d 206, 210
(5th Cir. 2004).
There is no
evidence of the required similarity.
There is no direct evidence in the summary judgment record
of race or gender discrimination, nor is there evidence raising a
prima facie case.
Plaintiff has pointed to no probative evidence
that someone outside her protected class--based on either race or
gender--was treated differently than her in a similar situation.
Her pleaded allegations that (1) she was the only employee in her
division who was regularly required to work more than fifty-five
(2) she was treated differently in terms of discipline and
deductions in pay, and (3) her employer "consistently applied an
employment policy in a.manner detrimental to [her] due to [her]
race," see Doc. 7 at 2-4,
6, find no support in the summary
Because plaintiff has not presented evidence to create a
prima facie case, summary judgment on her gender and race
discrimination claims is proper.
Hostile Work Environment and Harassment Claims
To establish a hostile work environment claim, an employee
must prove that:
"(1) she belongs to a protected group; (2)
she was subjected to unwelcome harassment;
(3) the harassment complained of was based on
[a protected characteristic]; (4) the
harassment complained of affected a term,
condition, or privilege of employment; (5)
the employer knew or should have known of the
harassment in question and failed to take
prompt remedial action. 1'
Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir. 2002).
Plaintiff alleged that she was the victim of harassment based on
both her gender and her race, and that such harassment rose to
the level of creating a hostile work environment.
that Randy King, her manager, required her to work more hours and
meet higher performance standards than what was required of her
However, this bare assertion alone cannot support a
hostile work environment or harassment claim.
Moreover, plaintiff must adduce evidence that the harassment
she claims she suffered was "sufficiently severe or pervasive to
alter conditions of [her] employment and create an abusive
Harris v. Forklift Sys.,
Inc., 510 U.S. 17
at 21 (1993), quoting, Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 65 (1986); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d
(5th Cir. 2008).
The challenged conduct must be both
objectively offensive, meaning that a reasonable person would
find it hostile and abusive, and subjectively offensive, meaning
that the victim perceived it to be so.
Commc'ns, L.L.C., 433 F.3d 428, 434
Harvill v. Westward
(5th Cir. 2005).
In determining whether a hostile work environment exists,
the court considers the totality of the circumstances, including
(1) the frequency of the conduct;
(2) the severity of the
(3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with an employee's work
Harris, 510 U.S. at 23
Rude behavior and
unwarranted comments, especially when alleged in a conclusory
fashion, do not alter a term, condition, or privilege of
LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d
(5th Cir. 2007).
Nothing in the summary judgment record suggests that any
conduct of which plaintiff complains rises to the level of
harassment or of creating a hostile work environment, nor has
plaintiff pointed to evidence suggesting that defendant did
anything based on plaintiff's race or gender.
Nor is there any
summary judgment evidence that any of such conduct altered a
term, condition, or privilege of her employment.
foregoing reasons, the court agrees with defendant that summary
judgment on these harassment and hostile work environment claims
Title VII prohibits an employer from discriminating against
employees for asserting rights protected under that statute.
This includes discriminating against
employees who participate in a Title VII proceeding or
investigation, or who challenge any action made unlawful by Title
Absent direct evidence of retaliation, as is the case
here, claims for retaliation under Title VII are analyzed using
the same burden-shifting analysis set forth above.
Dallas Morning News, Inc., 209 F.3d 419, 427
(5th Cir. 2000)
To make a prima facie case of Title VII retaliation, an
employee must show:
(1) she engaged in a protected activity;
the employer took a materially adverse employment action against
her; and (3) some causal link exists between her protected
activity and the adverse action taken against her.
Parish Juvenile Justice Comm'n, 811 F.3d 702, 705
Wheat v. Fla.
If a prima facie case of retaliation is made,
shifts to the employer to state a legitimate, non-retaliatory
reason for its decision.
After the employer states its reason,
the burden shifts back to the employee to demonstrate that the
employer's reason is actually a pretext for retaliation."
LeMaire, 480 F.3d at 388-89.
Even if the court were to assume that plaintiff engaged in
some protected activity, plaintiff still must, in making her
prima facie showing, point to evidence of a causal connection
between her engagement in such activity and her termination.
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534
(explaining that to satisfy the •causal link" requirement,
the employee •must establish that his or her protected activity
was a but-for cause of the alleged adverse action by the
employer. ") .
Plaintiff has not done so.
Moreover, if a prima
facie showing had been made, plaintiff has pointed to no evidence
that the legitimate, non-discriminatory reason for defendant's
decision to terminate plaintiff's employment was merely pretext
Therefore, summary judgment is proper as to
plaintiff's retaliation claim.
For the reasons given above,
The court ORDERS that all claims and causes of action
asserted by plaintiff against defendant be, and are hereby,
dismissed with prejudice.
SIGNED October 13, 2017.
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