Yoakum v. Sabre GLBL Inc
Filing
27
Memorandum Opinion and Order... The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted, that plaintiff take nothing on his claims against defendant, and that such claims be, and are hereby, dismissed. (Ordered by Senior Judge John McBryde on 12/19/2018) (wxc)
U g OISTRICT COURT
'NORTliERN JJISTRlCT OF TBXAS
FILED
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
OURT
DEC 1 9 2018
CLERK, U.S. DISTRICT COURT
TIMOTHY c. YOAKUM,
§
Dy
Deputy
§
Plaintiff,
§
§
vs.
§
NO. 4:18-CV-127-A
§
INC.,
SABRE GLBL,
§
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Sabre
GLBL Inc.,
for summary judgment. The court, having considered the
motion, the response of plaintiff, Timothy C. Yoakum, the reply 1 ,
the record, and applicable authorities,
finds that the motion
should be granted.
I.
Plaintiff's Claims
On February 1, 2018, plaintiff filed his complaint in this
action. Doc.' 1. He alleges that he was discriminated against by
defendant on the basis of his race and sex.' He asserts causes of
action for race and sex discrimination under 42 U.S.C.
§§
2000e
'The court need not consider the supplemental appendix in support of the reply.
2
The "Doc.
"reference is to the number of the item on the docket in this action.
'Plaintiff confusingly refers to "sex/gender" making it difficult to determine what he is really
alleging. See, e.g., Doc. l, ~ 61.
to 2000e-17
("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), and
Chapter 21 of the Texas Labor Code ("Chapter 21").
II.
Grounds of the Motion
Defendant maintains that plaintiff cannot prevail on any of
his claims. Specifically:
A sex discrimination claim is not cognizable under
§
1981.
Plaintiff cannot pursue his claims under Chapter 21 since the
Texas Workforce Commission did not ever receive his charge. Those
claims are time-barred in any event. Any claims based on events
that occurred more than 300 days before plaintiff filed his EEOC
charge are time-barred. Even if not time-barred, plaintiff cannot
prevail on his discrimination claims because he cannot establish
a prima facie case of discrimination. And, he cannot establish
constructive discharge. Even if plaintiff could make a prima
facie case, he cannot overcome defendant's articulated
legitimate, non-discriminatory reasons for its actions. And,
respondeat superior is not a cause of action.
III.
Applicable summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
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
2
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) .
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
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
case.
Id. at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
the record
("A party
is genuinely disputed must support
citing to particular parts of materials in
• fl )
•
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
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597
(1986).
In Mississippi Prat. & Advocacy
Sys., Inc. v. Cotten, the Fifth Circuit explained:
3
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 4
Celotex Corp., 477 U.S. at 323.
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.
Matsushita, 475 U.S. at 597; see also Mississippi Prat. &
Advocacy Sys., 929 F.2d at 1058.
IV.
Undisputed Facts
The summary judgment evidence establishes:
Plaintiff is a Caucasian male. Doc. 1, , 1. Plaintiff worked
for defendant from 1998 until December 2001, when he was laid
off. Doc. 19 at APP 5. He was re-employed by defendant
approximately three years later, in 2004. Id. In 2015 and 2016,
plaintiff's title was "Principal Named Accounts." Id. He
described his duties as selling the accounts and managing the
accounts. Id. His duties included coordinating with various
4
ln Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
4
functions within the company to ensure customer requests were
handled appropriately and in a timely manner.
Id. at APP 6.
Plaintiff's compensation consisted of salary and bonus. Id.
Plaintiff reported to Chris Wilding, a Caucasian male, until
2014, when Wilding was promoted to Senior Vice President of Sales
Management. At that point, Chad Tibor, a Caucasian male, became
plaintiff's supervisor. Tibor reported to Wilding. Id. at APP 7,
APP 43.
Plaintiff's 2015 year-end performance review reflected that
although plaintiff met or exceeded his goals for the year, he did
not measure up with regard to defendant's values. Doc. 19 at APP
59-65. Plaintiff needed to make significant improvements in the
areas of dependability, punctuality, and organization. Id. at APP
64. He was regularly late to calls and meetings and demonstrated
a lack of urgency when required. Internal complaints had been
lodged, as well as customer complaints. Id. Accordingly,
plaintiff received a rating of "partially successful" as his
overall performance rating. Id. at APP 65. Plaintiff was not
awarded any discretionary stock options and his bonus was lower
than it had been in the previous two years. Id. at APP 44.
Plaintiff spoke with a male Caucasian colleague who got a
larger bonus than in prior years. Doc. 19 at APP 11. Defendant
awarded discretionary stock options to Rowena Capili because she
5
had demonstrated outstanding performance and received a rating of
"highly successful" on her 2015 year-end performance review. Id.
at APP 44, APP 69-76. Capili was an account manager for the
operational side of the business. Id. at APP 7. She had a
different role than plaintiff. Id. at APP 6.
In August and September 2016, Tibor requested plaintiff to
work in the office during normal business hours instead of
working from home. Doc. 19 at APP 18, APP 43-44. Tibor believed
that if plaintiff was in the off ice some of the costly delays in
getting information could be avoided. Id. at APP 53. Plaintiff
believed Tibor made a second set of rules just for him, since
"nobody else [had]
to come into the office five days a week 9:00
to 5: OO." Doc. 24 at R. App. 12. Capili was allowed to work from
Houston two weeks out of every month. Id. at R. App. 13.
In February 2017, Tibor put plaintiff on a performance
improvement plan ("PIP"). Doc. 19 at APP 44, APP 78-79.
The PIP
identified specific areas that plaintiff needed to address, e.g.
not being responsive to clients and failing to meet deadlines.
Id. at APP 78. The PIP gave plaintiff thirty days to improve his
performance. Id. at APP 79. The first working day after receiving
the PIP, plaintiff submitted his written resignation. Id. at APP
44, APP 81.
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v.
Analysis
The same analysis applies to claims under Title VII and
§
1981. 5 Shackelford v. Deloitte & Touche, L.L.P., 190 F.3d 398,
403-04 n.2
(5th Cir. 1999). To establish a prima facie claim for
discrimination plaintiff must show that:
protected group;
(1) he is a member of a
(2) he was qualified for the position at issue;
(3) he suffered an adverse employment action by his employer; and
(4) he was replaced by someone outside the protected group or was
treated less favorably than other similarly situated employees.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
An adverse employment action is an ultimate employment decision.
Felton v. Polles, 315 F.3d 470, 486
(5th Cir. 2002). Ultimate
employment decisions include hiring, firing, demoting, promoting,
granting leave, and compensating. Thompson v. City of Waco, 764
F.3d 500, 503
(5th Cir. 2014). An employer's action does not rise
to the level of adverse if it fails to have more than a
tangential effect on a possible future ultimate employment
decision. Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261
F.3d 512, 519 (5th Cir. 2001). For example, placing an employee
on a performance improvement plan is not an adverse employment
5
The same analysis also applies to claims under Chapter 21. Shackelford v. Deloitte & Touche,
L.L.P., 190 F.3d 398, 403-04 n.2 (5th Cir. 1999). As discussed, infra, plaintiff concedes that he cannot
pursue his Chapter 21 claims.
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action. Turner v. Novartis Pharms. Corp., 442 F. App'x 139, 141
(5th Cir. 2011).
Plaintiff argues that the facts of his case are
distinguishable from those of Turner. But, he fails to point to
evidence to establish a genuine fact issue as to any adverse
employment action. Plaintiff's receipt of a smaller bonus than in
prior years was not connected to his PIP; nor was his failure to
receive stock options. Those events were tied to his 2015
performance review, which took place a year before the PIP.
Further, plaintiff has nothing but his own speculation to support
the contention that the PIP invariably would have resulted in his
termination. Plaintiff resigned instead of making any effort
whatsoever to improve his performance or even address what he
considered to be unjust requirements. His allegations regarding
receiving a review by telephone rather than in person, being
informed about a reorganization that never occurred, and being
required to work in the office instead of from home do not amount
to ultimate employment actions. See, e.g., Allbritain v. Texas
Dep't of Ins., No. A-12-CA-431-SS, 2014 WL 272223, at *4
(W.D.
Tex. Jan. 23, 2014) (denial of participation in telecommuting is
not an adverse employment action); Thomas v. Napolitano, No.
3:10-CV-265-B, 2013 WL 12250942, at *18 (N.D. Tex. Jan. 15,
8
2013) (failure to receive notification via normal methods is not
an adverse employment action)
Plaintiff alleges that he was constructively discharged,
which is an adverse employment action. Doc. 23 at 13-14. But, to
establish a claim for constructive discharge, plaintiff must show
that his working conditions were so intolerable that a reasonable
employee would have felt compelled to resign. Green v. Brennan,
136 s. Ct. 1769, 1776 (2016); Faruki v. Parsons S.I.P., Inc., 123
F.3d 315, 319 (5th Cir. 1997), Discrimination alone is not
enough; nor is mere failure to promote. Brown v. Kinney Shoe
Corp., 237 F.3d 556, 566 (5th Cir. 2001). Constructive discharge
requires a greater degree of harassment than required to
establish a hostile work environment (as discussed infra), Id.
Here, there is simply no evidence to support the contention that
a reasonable person in plaintiff's position would have been
compelled to resign.
Even assuming plaintiff could point to any adverse
employment action, he has not shown that he was treated
differently from any similarly situated employee. The summary
judgment evidence establishes that Capili had a better
performance review. And, plaintiff himself testified that her job
duties were not the same as his. He also testified that a male
employee received a bigger bonus than in prior years. And he
9
testified that he was the only one required to work in the office
five days a week. In sum, plaintiff has not made, and cannot
make, a prima facie case of discrimination of any kind. Merely
disputing his performance assessment by defendant is not enough.
Arey v. Watkins, 385 F. App'x 401, 404
(5th Cir. 2010).
To prove his claim for hostile work environment, plaintiff
must show:
(1) plaintiff belongs to a protected group;
subjected to unwelcome harassment;
on his protected status;
(2) he was
(3) the harassment was based
(4) the harassment affected a term,
condition, or privilege of employment; and,
(5) defendant knew or
should have known about the harassment and failed to take prompt
remedial action. Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir.
2002). To be actionable, the harassment must be both objectively
and subjectively offensive. Harvill v. Westward Communications,
L.L.C., 433 F.3d 428, 434
(5th Cir. 2005). It must be
sufficiently severe or pervasive to alter the conditions of
plaintiff's employment and create an abusive work environment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Factors
considered include the frequency of the conduct, its severity,
whether the conduct was physically threatening or humiliating or
a mere offensive utterance, and whether it unreasonably
interfered with the employee's work performance. Faragher v. City
of Boca Raton, 524 U.S. 775, 787-88
10
(1998). The Supreme Court has
"made it clear that conduct must be extreme to amount to a change
in the terms and conditions of employment." Id. at 788.
The summary judgment evidence establishes that this is not
the type of case where it could be said that the alleged
harassment was so severe or pervasive as to alter a condition of
plaintiff's employment. 6 See, e.g., E.E.O.C. v. Bah Bros. Constr.
Co., L.L.C., 731 F.3d 444
Enters.,
(5th Cir. 2013); E.E.O.C. v. WC&M
Inc., 496 F.3d 393
(5th Cir. 2007). In fact,
is satisfied that this claim is frivolous.
the court
Plaintiff does not
point to any evidence that even establishes the nature of the
hostility he claims existed. There is no evidence that race
played any role. His claim of sexual discrimination appears to be
based solely on his speculation that Capili was conspiring with
Tibor to harm plaintiff. See, e.g., Doc. 24 at R. App. 6-7, 24
(assuming "[s]he was sabotaging my work" refers to Capili), 2526, 27. And, there is no evidence of the existence of a hostile
work environment of the type that would support a claim at all.
Plaintiff does not dispute that sex discrimination claims
are not cognizable under
§
1981. Doc. 23 at 6-7. See Bobo v. ITT,
6
Plaintiff could recall only one instance when Tibor yelled at him. Doc. 24 at R. App. 16. He also
referred to inflammatory emails, but provided no example. Id. He testified that he felt humiliated on one
occasion (unspecified in time) when Wilding came over to where plaintiff was sitting and two other men
were standing and said, "Hello, men," and then said, "Oh, and Tim." Id. at R. App. 30-31.
11
Continental Baking Co., 662 F.2d 340, 342-45
Eure v. Sage Corp.,
61 F. Supp. 3d 651, 660
(5th Cir. 1981);
(W.D. Tex. 2014).
Plaintiff also agrees that he cannot proceed with his claims
under Chapter 21, since the EEOC failed to transmit his charge of
discrimination to the Texas Workforce Commission. Doc. 23 at 7-8.
See Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (5th Cir.
1988); Cooper v. Texas Wesleyan Univ., No. 05-09-00347-CV, 1999
WL 1179613, at *3-4
(Tex. App.--Dallas Dec. 15, 1999, pet.
denied) .
The court need not address other grounds of the motion, such
as limitations, even though they have merit. There is simply no
evidence of any genuine issue of material fact for trial.
VI.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, that plaintiff take nothing
on his claims against defendant, and that such claims be, and are
hereby, dismissed.
SIGNED December 19, 2018.
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