Nesmith v. Fanning

Filing 108

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 95 MOTION for Summary Judgment , 82 MOTION to Dismiss , 104 Memorandum and Recommendations. Motion to Dismiss 82 is denied. Motion for Summary Judgment 95 is granted. This action is Dismissed WITH Prejudice. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOE EDWARD NESMITH,
Plaintiff,
VS.
ROBERT M. SPEER, et al,
Defendants.

March 18, 2019
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:16-CV-491
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ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Pending before the Court are Defendant’s Motion to Dismiss (D.E. 82) and
Motion for Summary Judgment (D.E. 95).

On February 13, 2019, United States

Magistrate Judge Jason B. Libby issued a Memorandum and Recommendation (D.E.
104), recommending that Defendant’s Motion to Dismiss be denied, Defendant’s Motion
for Summary Judgment be granted, and Plaintiff’s claims be dismissed. Plaintiff timely
filed his objections (D.E. 105) on February 27, 2019, to which Defendant replied (D.E.
107). To correspond with the elements of a retaliation claim and for ease of disposition,
the Court has rearranged, renumbered, and restated the objections, and each is addressed
in turn.
First, with respect to his ability to show a prima facie case of retaliation, Plaintiff
objects to the Magistrate Judge’s conclusion that the Memoranda for Record (MFRs) are
not adverse employment actions.1 While he apparently accepts the fact that they did not
compel any decision to terminate his employment or adversely affect his pay or working
1

Plaintiff’s Objection 1.

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conditions, Plaintiff complains that they chilled his protected activity. 2 Specifically, he
points out that what the Magistrate Judge found to be continued engagement in protected
activity after receipt of the MFRs was nothing more than completing a complaint process
that he had begun prior to the issuance of the specific MFRs at issue here.
The contention that MFRs are adverse employment actions in practice because
they might chill an employee’s protected activity is not supported by this record.
Plaintiff recounts that he received 29 MFRs from June 19, 2012 to February 3, 2014, and
his only assertion of a chilling effect is directed to an MFR issued in 2012. None of the
MFRs that are at issue here deterred him from prosecuting grievances. D.E. 96-2, ¶¶ 7,
13. Plaintiff has cited no authority that prohibits a court’s consideration of the full
employment record when considering the effect of the claimed adverse employment
action.
The M&R details the long history of MFRs, as well as a union grievance and
EEOC actions taken by Plaintiff against Defendant. The record reflects that Plaintiff has
reacted defiantly and prosecuted his grievances despite the frequent issuance of MFRs
documenting his improper conduct. The Court OVERRULES Plaintiff’s first objection
regarding his failure to demonstrate a prima facie case.3
Second, Plaintiff objects to the Magistrate Judge’s finding that Defendant satisfied
its burden of articulating legitimate non-retaliatory reasons for issuance of the MFRs by:
(a) providing Nesmith’s record of written performance violations, including one written
2

Plaintiff’s Objection 5.
Even if the MFRs are deemed to constitute an adverse employment action, the case fails because of Defendant’s
articulation of legitimate non-retaliatory reasons for the MFRs and Plaintiff’s failure to overcome that evidence with
his own evidence of pretext, as detailed below.
3

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warning cautioning him about possible termination; (b) twice suspending him in 2012 for
behavior similar to that described in the 2014 MFRs at issue; and (c) showing that Jose
Mondragon repeatedly issued MFRs to Nesmith for what he considered discourteous
behavior.4
Plaintiff complains that previous MFRs and disciplinary actions should not be
considered because an employee does not have any procedural recourse for rebutting the
matters stated in an MFR through Defendant’s disciplinary process. While there may be
limitations on an employee in Defendant’s rules of procedure, the Magistrate Judge’s task
is to determine whether Plaintiff offered evidence to rebut the charges in this action. This
action is not governed by the rules of Defendant’s disciplinary procedure. Plaintiff had a
full opportunity to be heard on these issues and failed to adequately controvert that
evidence.
Moreover, casting doubt on Defendant’s articulated non-retaliatory reasons for its
actions is not enough under Plaintiff’s burden of proof to raise a disputed issue of
material fact. Defendant’s burden is only to articulate a non-retaliatory reason, not to
prove it. The colorable non-retaliatory reason that Defendant must articulate only has the
effect of triggering Plaintiff’s burden to raise a disputed issue of material fact on pretext.
As the Fifth Circuit has stated,
To overcome a motion for summary judgment, of course, the
plaintiff need only produce evidence to create a genuine issue
of material fact concerning pretext. It is clear, however, that
the plaintiff's summary judgment proof must consist of more
than a mere refutation of the employer's legitimate
4

Plaintiff’s Objections 2, 3, 4, 6, and 8.

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non[retaliatory] reason. To demonstrate pretext, the plaintiff
must do more than cast doubt on whether the employer had
just cause for its decision; he or she must show that a
reasonable factfinder could conclude that the employer's
reason is unworthy of credence. Specifically, there must be
some proof that [retaliation] motivated the employer's action,
otherwise the law has been converted from one preventing
[retaliation] to one ensuring dismissals only for just cause to
all people [who file EEOC complaints].
Moore v. Eli Lilly & Co., 990 F.2d 812, 815–16 (5th Cir. 1993) (footnotes and original
quotation marks and bracketing omitted).
Plaintiff contends that the supervisor’s withdrawal of some of the MFRs he has
challenged here, in the course of a first level union grievance, is an admission that the
MFRs were lacking substance or veracity. This is not borne out in the record. Plaintiff
has failed to point to any admission on the part of Plaintiff’s chain of command that the
MFRs were groundless and that they were rescinded for that reason. A party to a dispute
may buy its peace without any admission of wrongdoing and Plaintiff has supplied
nothing to indicate that his supervisor withdrew the MFRs because they had no merit.
By issuing the February 10, 2014 MFR, Plaintiff’s supervisor reclaimed the
legitimacy of the complaints stated therein and based adverse employment action (which
is not at issue here) in part on Plaintiff’s rude, discourteous, and insubordinate conduct
outlined in the MFR. D.E. 95-16, 95-18, 95-19, 95-20, 95-21. This is some evidence of
colorable grounds for the issuance of the MFRs. Plaintiff’s failure to controvert this
evidence eliminates any fact question under the standard of review, requiring evidence
rather than allegations or arguments to raise a disputed issue of material fact. Little v.
Liquid Air Corp., 37 F. 3d 1069, 1075-79 (5th Cir. 1994).
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In addition, Plaintiff’s earlier uncontroverted suspensions corroborate that Plaintiff
engaged in the type of conduct outlined in the MFRs for which disciplinary action is
appropriate. MFRs had been used to try to bring Plaintiff’s conduct into conformity with
Defendant’s appropriate expectations long before the current MFRs were issued. The
Magistrate Judge did not err in considering the totality of the record. Plaintiff has cited
no authority for limiting a court’s review of an employment dispute to particular events
cherry-picked by Plaintiff.
Plaintiff objects to the Magistrate Judge’s determination that he failed to respond
to Defendant’s alleged non-retaliatory reasons for its actions by producing evidence that
would permit a reasonable jury to find that he would not have received the MFRs but for
his protected activity. More specifically, he complains without citation to authority that
the Magistrate Judge should have listed the Defendant’s evidence on which he relied.
There is no such requirement. 28 U.S.C. §636(b)(1) (requiring only findings of fact and
conclusions of law, not any inventory of the evidence). He complains that the Magistrate
Judge did not credit his declaration, which this Court finds impermissibly conclusory and
thus insufficient as summary judgment evidence. Little, supra. He complains that his
grievance of the matter, resulting in the rescission of the MFRs, is evidence that the
MFRs were improper. As addressed above, that action is not evidence that the MFRs
were groundless.
Plaintiff further argues that he gave appropriate explanations for certain charges
contained in the MFRs, such as his use of the computer before work hours to conduct
union business and the fact that contacting the employee relations specialist for purposes
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unrelated to his own employment did not violate the chain of command. Accepting that
as true for purposes of argument, it does not eliminate the remaining charges that were
found substantiated, including rude and insubordinate behavior.

The Court

OVERRULES Plaintiff’s second objection regarding Defendant’s satisfaction of its
burden to articulate a non-retaliatory reason for its actions.
Third, with respect to pretext, Plaintiff relies on the temporal proximity between
his protected activity and the issuance of the MFRs.5 This argument treats the three
MFRs at issue here as existing in a vacuum, which is not the case. Furthermore, the Fifth
Circuit has made it clear that temporal proximity, alone, will not satisfy a plaintiff’s
burden when there is other evidence explaining an adverse employment decision. “[W]e
affirmatively reject the notion that temporal proximity standing alone can be sufficient
proof of but for causation. Such a rule would unnecessarily tie the hands of employers.”
Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); see also,
Ganheart v. Brown, 740 F. App’x 386, 389 (5th Cir. 2018).
Plaintiff generally objects to the Magistrate Judge’s rejection of his effort to show
pretext, disagreeing that (a) the MFRs were substantiated by “other evidence” in the
summary judgment record, (b) he “failed to provide any evidence that challenges the
accuracy of the MFRs,” and (c) he failed to dispute that each incident that is the subject
of the MFRs occurred. Having reviewed the record and for the reasons outlined above,
the Court agrees with the Magistrate Judge’s conclusions, including that Plaintiff failed to
adequately dispute his rude, discourteous, and insubordinate conduct and that
5

Plaintiff’s Objection 7.

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Defendant’s representation of the incidents is corroborated. The Court OVERRULES
Plaintiff’s third objection, which challenges the finding that Plaintiff failed to show
pretext.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Defendant’s motion to dismiss (D.E.
82) is DENIED, Defendant’s motion for summary judgment (D.E. 95) is GRANTED,
and this action is DISMISSED WITH PREJUDICE.
ORDERED this 18th day of March, 2019.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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