Gerdin v. CEVA Freight, L.L.C. et al
Filing
18
MEMORANDUM OPINION AND ORDER denying 14 MOTION for Summary Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KATIE GERDIN,
§
§
§
§
§
§
Plaintiff,
v.
CIVIL ACTION NO. H-11-3567
5
CEVA FREIGHT, L.L.C. and
CEVA LOGISTICS U. S., INC.,
§
§
§
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff,
Katie
Gerdin,
brings
this
action
against
defendants, CEVA Freight, L.L.C., and CEVA Logistics U.S., Inc.
(CEVA),
for
employment
discrimination
based
on
gender
and
pregnancy in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C.
§
2000e et sea. (Title VII), and
Chapter 21 of the Texas Labor Code, and for violation of the Family
and Medical Leave Act, 29 U. S.C.
§
2601 et seq. (FMLA).
Pending
before the court is Defendantsf CEVA Freight, LLC, and CEVA
Logistics US, Incfs Motion for Summary Judgment
No. 14).
(Docket Entry
For the reasons set forth below defendants' motion for
summary judgment will be denied.
I.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact, and the law
entitles it to judgment.
Fed. R. Civ. P. 56(c).
Disputes about
material facts are "genuine"
if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobbv, Inc., 106 S.Ct. 2505, 2511 (1986). The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion, against a party who fails to make a
showing sufficient
to
establish
the
existence
of
an
element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett, 106 S.Ct.
2548, 2552
(1986).
A party moving for summary judgment "must
'demonstrate the absence of a genuine issue of material fact,' but
need not neqate the elements of the nonmovantfs case."
Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc),
(quoting Celotex, 106 S.Ct. at 2553-2554 (emphasis in original)).
"If the moving party fails to meet this initial burden, the motion
must be denied, regardless of the nonmovant's response."
I . If,
d
however, the moving party meets this burden, Rule 56(c) requires
the nonmovant to go beyond the pleadings and show by affidavits,
depositions, answers to interrogatories, admissions on file, or
other admissible evidence that specific facts exist over which
there is a genuine issue for trial.
at 2553-2554).
I . (citing Celotex, 106 S.Ct.
d
In reviewing the evidence "the court must draw all
reasonable inferences in favor of the nonmoving party, and it may
not make credibility determinations or weigh the evidence." Reeves
v. Sanderson Plumbins Products, Inc., 120 S.Ct. 2097, 2110 (2000).
Factual controversies are to be resolved in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little,
37 F.3d at 1075.
Undisputed Facts
11.
Plaintiff
was
hired
by
Administrative Assistant.'
Truckload
Department
for
CEVA
in
September
Plaintiff worked
Jim
Duff,
2008
as
an
in the Corporate
Vice-President
of
Ground
operation^.^ Plaintiff's job duties included timekeeping; assisting with human resource paperwork; scheduling leave, training,
meetings,
and
conference
calls;
making
travel
arrangements,
preparing expense reports; recording overhead payables; ordering
office supplies; preparing reports; Sprint invoicing; and researching special projects as requested by department managers.3
In March
of
2009
Duff
left
CEVAr4 and
plaintiff
began
reporting to Bob Livingston, Ground Products Director for the
l~efendants CEVA Freight, LLC and CEVA Logistics US, Inc.'s
Motion for Summary Judgment ("Defendantsr MS J") , Docket Entry
No. 14, p. 2; Plaintiff's Response in Opposition to Defendantsr
Motion for Summary Judgment ("Plaintiffrs Opposition") , Docket
Entry No. 15, p. 2.
'Defendants' MSJ, Docket Entry No. 14, p. 2; Plaintiffrs
Opposition, Docket Entry No. 15, p. 2.
3~efendants' MSJ, Docket Entry No. 14, p. 2; Plaintiff's
Opposition, Docket Entry No. 15, pp. 3-4.
4~efendants' MSJ, Docket Entry No. 14, p. 2; Plaintiff's
Opposition, Docket Entry No. 15, p. 2.
See also Plaintiff's
Deposition, Exhibit A attached to Defendants' MSJ, Docket Entry
No. 14, p. 56:13-16; Oral Deposition of Wendy Valdemar ("Valdemar
Deposition") , Exhibit B attached to Defendants' MSJ, Docket Entry
No. 14, p. 21:15-25.
Pick-Up
&
Delivery Department, and performed administrative duties
for various other managers.5
renamed the Corporate
Following Duff's
Truckload department
as
departure CEVA
the
department and reorganized by moving the Safety
&
"Domestic"
Compliance
Department to another division of the company.6 This reorganization eliminated thirty
employee^.^
In the summer of 2009 plaintiff informed defendants that she
was pregnant.
In October
2009 Senior Vice-President Nelson Bettencourt
transferred from the Corporate HR department to the Domestic
department.
Bettencourt
brought
with
him
his
long-time
administrative assistant Margarita Rodrig~ez.'~ Before taking
maternity leave plaintiff trained Rodriguez to perform some of
plaintiff's
duties so that Rodriguez could perform those duties
while plaintiff was on leave.''
5~efendants'MSJ, Docket Entry No. 14, p. 3 (citing Valdemar
Deposition, Exhibit B attached to Defendants' MS J, Docket Entry
No. 14, pp. 13 and 16); Plaintiff's Opposition, Docket Entry
No. 15, p. 3 (citing Plaintiff's Deposition, Exhibit A to
Defendantsf MSJ, Docket Entry No. 14, p. 86:17-19).
6~efendants'
MSJ, Docket Entry No. 14, p. 3 (citing Exhibit B,
Valdemar Deposition, pp. 14, 49-50) .
7 d (citing Exhibit B, Valdemar Deposition, p. 49).
1 .
(citing Exhibit A, Plaintiffrs Deposition, pp. 10-12) .
' d (citing Exhibit D, Declaration of Stacey Harrison,
I.
1°1d. (citing Exhibit B Valdemar
Exhibit C, Kilgore Deposition, p. 12).
Deposition, p.
¶
5).
42, and
" d (citing Exhibit A, Plaintiff's Deposition, p.
I.
Exhibit B, Valedmar Deposition, pp. 17, 31-32).
37,
On March 1 5 , 2 0 1 0 , p l a i n t i f f t o o k FMLA-covered m a t e r n i t y l e a v e
f o r t h e b i r t h of h e r second child.''
r e t u r n e d t o work.13
Plaintiff's
On May 2 4 ,
2010,
plaintiff
j o b t i t l e r e m a i n e d t h e same, b u t
p l a i n t i f f contends t h a t h e r job d u t i e s changed, and t h a t t h e o n l y
j o b d u t y r e t u r n e d t o h e r was S p r i n t i n v o i c i n g . 1 4
CEVA t e r m i n a t e d p l a i n t i f f ' s
111.
On J u n e 9 , 2 0 1 0 ,
employment.15
D e f e n d a n t s ' M o t i o n f o r Summarv Judcrment
D e f e n d a n t s a r g u e t h a t t h e y a r e e n t i t l e d t o summary j u d g m e n t
b e c a u s e p l a i n t i f f i s u n a b l e t o p r e s e n t e v i d e n c e i n s u p p o r t of one
o r more o f t h e e s s e n t i a l e l e m e n t s o f e a c h o f p l a i n t i f f ' s
A.
claims.
F e d e r a l Law C l a i m s
1.
T i t l e V I I
Plaintiff
because
of
her
a l l e g e s t h a t d e f e n d a n t s t e r m i n a t e d h e r employment
sex
and
her
pregnancy
in
violation
of
rights
p r o t e c t e d by T i t l e V I I . 1 6
Defendants argue t h a t t h e y a r e e n t i t l e d
to
plaintiff's
summary
judgment
on
Title
VII
claims
121d.
(citing Plaintiff's
Deposition, p . 37)
P l a i n t i f f ' s O p p o s i t i o n , Docket E n t r y N o . 1 5 , p . 3 .
1 3 ~ e f e n d a n t s ' MSJ, D o c k e t E n t r y No.
O p p o s i t i o n , D o c k e t E n t r y No. 1 5 , p . 4 .
14,
p.
.
4;
because
See
also
Plaintiff's
1 4 p l a i n t i f f ' s D e p o s i t i o n , E x h i b i t A t o D e f e n d a n t s ' MSJ, D o c k e t
E n t r y No. 1 4 , p p . 1 2 2 : 7 - 1 2 3 : 6 .
1 5 ~ e f e n d a n t s ' MSJ, D o c k e t E n t r y No.
O p p o s i t i o n , D o c k e t E n t r y No. 1 5 , p . 4 .
14,
p.
5;
Plaintiff's
1 6 p l a i n t i f f ' s Amended C o m p l a i n t , D o c k e t E n t r y No. 1 3 , p p . 3-5
¶ ¶ 15-21.
plaintiff was discharged as part of a reduction-in-force (RIF), and
because plaintiff has not presented any evidence that her discharge
was a pretext for sex discrimination based on pregnancy.
(a) Applicable Law
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C.
§
2000e et ses., prohibits discrimination on the basis of
race, color, religion, sex, or national origin in federal and
private employment. The Pregnancy Discrimination Act of 1978 (PDA)
"amended Title VII by explicitly including discrimination based on
pregnancy and related medical conditions within the definition of
sex discrimination."
Stout v. Baxter Healthcare Corp., 282 F.3d
856, 859 (5th Cir. 2002).
Specifically, Title VIIfs definition of
the terms "because of sex" and "on the basis of sex" was expanded
to include "because of or on the basis of pregnancy, childbirth, or
related
§
medical
2000e(k)).
conditions.
. .
I1
I , (quoting
d
42
U.S.C.
A claim brought under the PDA is analyzed like any
other Title VII discrimination claim. See Urbano v. Continental
Airlines. Inc., 138 F.3d 204, 206 (5th Cir. 1998), cert. denied,
119 S.Ct. 894 (1999).
The evidentiary analysis required in cases brought under
Title VII for sex discrimination was enunciated in McDonnellDouqlas Corp. v.
Green,
93 S.Ct.
1817
(1973), and has been
reaffirmed in many subsequent cases, including, e.g., St. Marvfs
Honor Center v. Hicks, 113 S .Ct. 2742 (1993). Under the McDonnellDouslas procedure the initial burden of establishing a prima facie
case lies with the plaintiffs.
93 S.Ct. at 1824.
Once plaintiffs
have established a prima facie case, a rebuttable presumption
arises that obligates the defendant to articulate a legitimate,
nondiscriminatory business reason for the challenged action.
If
defendant articulates such a reason, the burden shifts to plaintiff
to establish that the defendant's
stated reason is pretextual and
that the true reason is unlawful discrimination.
St. Marv's, 113
S.Ct. at 2747 (citing Texas Dept. of Community Affairs v. Burdine,
101 S.Ct. 1089, 1094-1095 (1981)). Evidence of pretext will permit
a trier of fact to infer that the discrimination was intentional.
Nichols v. Loral Vousht Systems Corp., 81 F.3d 38, 41 (5th Cir.
1996).
In the summary judgment setting, the plaintiff's burden is
not to persuade the court that defendantfs explanation is incorrect
but, rather, to raise a genuine issue of material fact for trial by
presenting evidence that both
discriminatory
reason,
and
(1) rebuts the defendant's
(2)
creates
an
inference
nonthat
impermissible discrimination was a determinative factor in the
challenged employment decision.
E.E.O.C. v. Texas Instruments
Inc., 100 F.3d 1173, 1180-1181 (5th Cir. 1996).
The burden of
producing evidence from which a rational trier-of-fact could find
discrimination always remains with the plaintiff.
S.Ct. at 2747-2749.
St. Marv's, 113
(b)
A p p l i c a t i o n of t h e Law t o t h e F a c t s
(1)
P l a i n t i f f Has E s t a b l i s h e d Prima F a c i e Case
To c a r r y t h e i n i t i a l burden on h e r claim of sex d i s c r i m i n a t i o n
based on pregnancy, p l a i n t i f f m u s t e s t a b l i s h a prima f a c i e c a s e by
showing t h a t :
(1) she i s a member of a p r o t e c t e d group;
( 2 ) she
was
for
adverse
qualified
her
position;
(3)
she
suffered
an
employment a c t i o n ; and ( 4 ) t h a t o t h e r s i m i l a r l y s i t u a t e d employees
were more f a v o r a b l y t r e a t e d , o r t h a t she was r e p l a c e d by a person
who was n o t
a member of
her protected
Douqlas, 9 3 S . C t . a t 1824.
v.
City
of
class.
See a l s o Urbano, 138 F.3d a t 2 0 6 ; McCoy
Shreveport,
492
F.3d
551,
556
Defendants do n o t d i s p u t e t h a t p l a i n t i f f
position
or
that
she
Instead,
asserting that
- McDonnellSee
suffered
an
plaintiff
Cir.
2007).
was q u a l i f i e d f o r h e r
adverse
"was
(5th
not
employment
pregnant
action.
when
CEVA
e l i m i n a t e d h e r p o s i t i o n , having given b i r t h approximately 1 0 weeks
b e f o r e and r e t u r n e d t o work f u l l - t i m e ,
plaintiff
i s not
a member of
Defendants a l s o argue t h a t
"
the
"17
d e f e n d a n t s argue t h a t
c l a s s p r o t e c t e d by
the
PDA.
[ a ]lthough [ p l a i n t i f f ] f i t s w i t h i n a
p r o t e c t e d s t a t u s f o r h e r gender d i s c r i m i n a t i o n claim, she o f f e r s no
evidence t h a t a s i m i l a r l y s i t u a t e d male was t r e a t e d more f a v o r a b l y
than h e r . "la
Defendants do n o t d i s p u t e t h a t p l a i n t i f f was d i s c h a r g e d l e s s
than t h r e e weeks a f t e r she r e t u r n e d from h e r m a t e r n i t y l e a v e , and
l7~efendantsf
MSJ, Docket Entry No. 1 4 , p . 11.
that while plaintiff was out on maternity leave her job duties were
reassigned to two women, Margarita Rodriguez and Wendy Valdemar,
neither
of
plaintiff's
whom
were
job
pregnant,
duties
after
and
both
plaintiff's
of
whom
retained
discharge.
These
undisputed facts are sufficient to satisfy the disputed elements of
plaintiff's prima facie case, i.e., that plaintiff was a member of
the protected class of pregnant women, and that plaintiff was
replaced by employees who were not members of her protected class,
i.e., women who were not pregnant.
- McLaushlin v. W
See
&
T
Offshore, Inc., 78 Fed.Appx. 334, 338 (5th Cir. 2003) (per curiam)
(plaintiff established prima facie case under the PDA by showing
that plaintiff was pregnant, she was discharged following return
from maternity leave, and her duties were delegated to two nonpregnant employees) .
See also Misis v. Pearle Vision, Inc., 135
F.3d 1041, 1060 (5th Cir. 1998) ("comparison is
. . .
between
pregnant and nonpregnant workers, not between men and women").
(2) Genuine Issues of Fact Exist as to Pretext
Once plaintiff has established a prima facie case of sex
discrimination based on pregnancy, the question becomes whether
defendants have offered a legitimate, nondiscriminatory reason for
the adverse employment action at issue, here plaintiff's discharge,
and whether plaintiff can satisfy her burden of presenting evidence
from which
a
reasonable
fact-finder could
conclude
that
the
defendants' stated reason for her discharge is not true but is,
instead, a pretext for sex discrimination based on pregnancy.
(i) Defendants' Lesitimate Non-Discriminatory
Business Reason for Plaintiff's Discharse
Defendants argue that they are entitled to summary judgment on
plaintifff s Title VII claims because her position was eliminated as
part
of
a
RIF.
As
eliminated as part
evidence
that plaintiff' s position
was
of a RIF, defendants cite the deposition
testimony of Wendy Valdemar, supervisor of the P&D Department, and
Cathy Kilgore, who at all relevant times was Vice-President of
Human Resources, and the declaration of Stacey Harrison, Human
Resources Business Partner Manager for CEVA Freight, L.L.C.
Kilgore testified that in the fall of 2009 CEVA began a series
of layoffs, that plaintiff was considered for layoff then, but
another person was discharged instead.lg Kilgore testified that in
early 2010 CEVA initiated plans to outsource certain functions that
would
result
accounting
in
the
layoff of many
functions
in
the
employees
Domestic
who
department,
performed
but
that
plaintiff's supervisors were not advised of the outsourcing plan
until early June of 2010.20
Ig~eposition Cathy Kilgore, Exhibit C to Defendants' MSJ,
of
Docket Entry No. 14, pp. 9-12.
'O1d. at 13 and 29.
-10-
Valdemar testified that in January of 2010 she and plaintiff's
supervisor, Bob Livingston, told plaintiff
trained in line haul payable
assuming
those duties
that she would be
functions because
upon her
return
she would be
from maternity
leave.
Valdemar testified that later that month plaintiff moved to a
cubicle to sit among the other line haul clerks and begin training
in their duties.'l
Valdemar also testified that on June 9, 2010,
plaintiff has discharged as part of a RIF, that the RIF continued
through the end of 2010, and that the RIF affected a significant
number of employees in addition to plaintif-f.22 Valdemar testified
that CEVA selected plaintiff for the first part of the RIF because
her skills were less necessary for the transition to outsourcing
since she was still learning the line haul duties and could not
assist in the transfer of information to the outsourcing entity.23
Harrison stated in her declaration that plaintiff was employed
by CEVA Freight, L.L.C., not by CEVA Logistics U.S., Inc., that on
October 11, 2009, CEVA transferred Senior Vice-President Nelson
Bettencourt from the Corporate HR department to head the Domestic
21~eposition Wendy Valdemar, Exhibit B to Defendants' MSJ,
of
Docket Entry No. 13, pp. 19-32, 46, 53.
22~efendantsr
MSJ, Docket Entry No. 14, pp. 4-5 (citing
Deposition of Wendy Valdemar, Exhibit B to Defendantsr MSJ, Docket
Entry No. 13, pp. 32-35).
23rd. 5 (citing Deposition of Wendy Valdemar, Exhibit B to
at
Defendants' MSJ, Docket Entry No. 13, pp. 44-45).
Department,
and
that
Bettencourtfs
long-time
administrative
assistant, Margarita Rodriguez, worked for CEVA for approximately
twelve years, from December 3, 1999, to March 30, 2012.24 Harrison
also stated that
CEVA instituted a reduction in force ("RIF") associated
with outsourcing all accounting functions in the U.S.,
including the Domestic P&D Department. Approximately 41
persons were terminated as part of the RIF during
September and October 2010. Later terminations as part
of the RIF took the total layoffs to approximately 62
persons. 2 5
Defendantsf articulated reason for discharging the plaintiff
is that plaintiff had been transferred to the P&D Department prior
to her maternity
leave, and that plaintiff was discharged on
June 9, 2010, because her position was eliminated when P&D was
outsourced.
If believed
by
the
trier
legitimate, non-discriminatory business
of
fact, defendantsf
reason for discharging
plaintiff would support a finding that her discharge was not caused
by unlawful discrimination.
See Texas Instruments, 100 F.3d at
1181 (recognizing a RIF as a legitimate, nondiscriminatory reason
for discharge).
(ii) Plaintiff's Evidence of Pretext
Where an employer produces a legitimate, non-discriminatory
explanation, the plaintiff bears the ultimate burden of persuading
24~eclaration Stacey Harrison, Exhibit D to Defendants' MSJ,
of
Docket Entry No. 14, ¶ ¶ 4-6.
the trier of
discrimination.
fact that the defendant engaged in intentional
Evidence showing that the defendants' explanation
is false, taken together with the plaintiff's prima facie case is
likely to support an inference of discrimination.
Inc., 333 F.3d 572, 578 (5th Cir. 2003).
Laxton v. Gap,
Here, plaintiff presents
several types of evidence to rebut defendants' claim that she was
discharged because her position was eliminated in a RIF.
First, plaintiff points to the temporal proximity between her
protected
activity
and
her
discharge,
i.e.,
plaintiff
was
discharged less than three weeks after she returned from maternity
leave.
Second, while defendants claim that the decision to
discharge plaintiff was precipitated by the decision to outsource
the P&D Department's accounting functions, plaintiff disputes the
defendants'
contentions
outsourced accounting
that
the
functions.
duties
she
performed
Plaintiff testified
were
in her
deposition that she never did much with the ladies in the P&D
Department because they did billing while she performed other
administrative duties such as timekeeping; assisting with human
resource paperwork;
scheduling leave, training, meetings,
and
conference calls; making travel arrangements; preparing expense
reports; recording overhead payables; ordering office supplies;
preparing
reports;
Sprint
invoicing;
and
researching
special
projects as requested by department managers.26 Plaintiff argues
26~efendants'MSJ, Docket Entry No. 14, p. 2; plaintiff's
Opposition, Docket Entry No. 15, pp. 3-4.
that when she returned from maternity leave she was only given back
one of her core duties:
Sprint invoicing.27 AS evidence that all
but one of her core duties was not returned to her when she
returned from maternity leave, plaintiff points to her deposition
testimony that during the two weeks she was employed after her
maternity leave and before her discharge, she did Sprint invoicing
and a special project for Valdemar that involved looking up items
in a databa~e.'~ Moreover, defendants have not produced
any
evidence that the duties plaintiff performed prior to her maternity
leave were ever outsourced either by the time of her discharge on
June 9, 2010, or later.
Instead, the undisputed evidence shows
that plaintiff's duties were assumed by Rodriguez and Valdemar:
Q.
Who took over the duties of ordering supplies while
Katie was on maternity leave?
A.
Margarita.
Q.
Who took over Katie's timekeeper duties while she
was on maternity leave?
A.
Margarita and myself.
Q.
And do you know if anybody took over the things
that Katie was doing to help the help desk and the
managers with the website?
A.
That came back to m . '
e'
27~laintiff'sOpposition, Docket Entry No. 15, p. 4 (citing
Valdemar Deposition, Exhibit B to Defendantsr MSJ, Docket Entry
No. 14, p. 32:13-16).
28~laintiff's Opposition, Docket Entry No. 15, p. 4 (citing
Exhibit A to Defendants' MSJ, Plaintiff's Deposition, pp. 82:7-84:3) .
"~xhibit B to Defendants' MSJ, Docket Entry No. 14, Valdemar
Deposition, p. 27:3-19.
Third, defendantsf human resources representative, Kilgore,
testified that when there is a RIF, defendants conduct a "peer
group analysis" to determine who to lay off, but that no such
analysis was ever done for plaintiff.
Kilgore also testified that
when a RIF is needed, every effort is made to reduce extra staff by
transferring and rebalancing individuals as appropriate, but that
she was not aware of any such efforts having been made for the
plaintiff. Nor did Kilgore know whether any consideration had been
given to discharging any other administrative assistants, such as
Rodriguez.
Instead, Kilgore testified that Rodriguez was not
considered for the RIF.30
Finally, plaintiff points to comments made to her by her
supervisor, Livingston, both before and after her maternity leave.
Plaintiff testified that prior to her maternity leave, Livingston
expressed displeasure with her having to take time off work to go
to her prenatal doctor appointments, and questioned her as to how
long her appointments would take, and whether they could be made at
different times.31
Plaintiff testified that when she returned from
maternity leave, Livingston said to her:
"I hope that having kids
is not going to interfere with your ability to work full time,"32
3 0 ~ ~ h i b i tto Defendants' MSJ, Docket Entry No. 14, Kilgore
C
Deposition, pp. 17-18, and 22-23.
31~laintiff'sOpposition, Docket Entry No. 15, p. 4 (citing
Plaintiff's Deposition, Exhibit A to Defendants' MSJ, Docket Entry
No. 14, p. 39).
3- .
2 ~ d (citing Plaintifffs Deposition, Exhibit A to Defendantsf
MSJ, Docket Entry No. 14, p. 71).
and he suggested to her that a part-time job might be better for
her.3 3
The court concludes that when viewed in totality and in the
light most favorable to the plaintiff, the evidence that plaintiff
has presented is sufficient to create a genuine issue of material
fact as to whether defendantsf stated reason for her discharge is
not true but is, instead, a pretext for sex discrimination based on
pregnancy.
While temporal proximity alone is insufficient at the
pretext stage,
see
Strons v. Universitv Healthcare Svstem, L.L.C.,
482 F.3d 802, 808 (5th Cir. 2007), and the "[flailure to follow
internal procedures is generally not enough to create a genuine
issue of fact as to discriminatory motives," Grubb v. Southwest
Airlines, 296 Fed.Appx. 383, 390 (5th Cir. 2008), cert. denied, 129
S .Ct. 1986 (2009), temporal proximity coupled with evidence that
the proffered reason is not true will suffice to survive summary
judgment. See Schackelford v. Deloitte
&
Touche, LLP, 190 F.3d 398,
409 (5th Cir. 1999).
Although defendants cite evidence indicating that plaintiff's
position was eliminated in a RIF, defendantsf evidence shows that
the RIF occurred in September and October of 2010, while plaintiff
was discharged on June 9, 2010. In addition, the plaintiff appears
to be the only employee discharged in June of 2010. The contradiction between defendants' evidence of when the RIF occurred and when
plaintiff was discharged, in addition to plaintiff's
position
apparently being the only position eliminated in June 2010, taken
together with the temporal proximity of plaintiff's discharge to
her return from maternity leave, the defendantsf failure to follow
internal procedures, and her supervisor's remarks, raise credibility
issues that are sufficient to create material issues of disputed
fact as to whether defendantsr articulated reason is true.
Reeves,
120 S.Ct. at 2109
("a plaintiff's
prima
See
facie case,
combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated"); Blow v. Citv
of San Antonio, Tex., 236 F.3d 293, 297 (5th Cir. 2001) (recognizing that one is "simply not required to believe" defendantsr
proffered
Healthcare
reason
discharge) ; Hunt v. Rapides
for plaintiff's
Svstem,
LLC,
277
F.3d
757,
762
(5th Cir.
2001)
("Credibility determinations are not part of the summary judgment
analysis.") ; Palasota v. Hassar Clothing Co., 342 F.3d 569, 576
(5th Cir.
2003),
cert.
denied,
124 S.Ct.
1441
(2004)
("the
establishment of a prima facie case and evidence casting doubt on
the veracity of the employer's explanation is sufficient to find
liability"). Accordingly, the court concludes that the evidence of
pretext provided by plaintiff, in its totality, is sufficient to
support a finding that summary judgment is unwarranted.
2.
The Family and Medical Leave Act
Plaintiff alleges that defendants willfully discriminated
against her and interfered with her rights under the FMLA by
failing to return her job duties to her when she returned from
FMLA-covered maternity leave, and by discharging her less than
three weeks later.34 Defendants argue that they are entitled to
summary judgment on plaintiff's
FMLA claim because plaintiff has
failed to state a prima facie case of interference with FMLA rights
or retaliation for having exercised FMLA rights, and because
plaintiff was discharged as part of a reduction-in-force (RIF).
(a) Applicable Law
The
FMLA
allows
eligible
employees
working
for
covered
employers to take temporary leave for medical reasons without risk
of losing their employment.
29 U.S.C.
§
2601 (b)(1) and (2). 3 5
The
FMLA contains both prescriptive and proscriptive provisions which,
together, seek both to accommodate the legitimate interests of
employers and to meet the needs of employees and their families.
See
- IHunt
277 F.3d at 763.
Prescriptive provisions of the FMLA
allow an eligible employee to take up to twelve weeks of unpaid
leave to care for herself if the employee suffers from a serious
34~laintifffs
Amended Complaint, Docket Entry No. 13, pp. 6-7
24-27.
3 5 ~ h Act applies to private-sector employers with fifty or
e
more employees. 29 U.S.C. 5 2 6 (4)A i ) . An employee who has
worked for a covered employer for at least 1250 hours during the
preceding twelve months is eligible for FMLA leave.
29 U. S.C.
§ 2611(2) (A).
Defendants do not dispute either that CEVA is a
covered employer or that plaintiff was eligible for FMLA leave.
health condition that makes the employee unable to perform the
functions of her position, to care for a newly born or adopted
child, and to care for a spouse, child, or parent who has a serious
health condition.
I . (citing 29 U.S.C.
d
§
2612 (a)(1)
)
.36
If paid
leave is available an eligible employee may elect, or an employer
may require, the employee to substitute paid leave for unpaid FMLA
leave.
29 U.S .C.
§
2612 (2)(A).
At the conclusion of a qualified
leave period the employee is entitled to reinstatement to her
former position, or to an equivalent one, with the same terms and
benefits.
29 U.S.C.
§
2614(a).
An equivalent position, for
purposes of the FMLA, is one that is
virtually identical to the employee's former position in
terms of pay, benefits, and working conditions, including
privileges, prerequisites, and status. It must involve
the same or substantially similar duties and responsibilities which must entail substantially equivalent
skill, effort, responsibility, and authority.
29 C.F.R.
§
825.215(a).
Proscriptive provisions of the FMLA make
it "unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided
under" the FMLA. 29 U.S.C.
3629 U.S.C.
§
§
2615 (a). The FMLA provides a private
2612 (a)(1) provides in relevant part that
[A]n eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for one or
more of the following:
(A) Because of the birth of a son or daughter of the
employee and in order to care for such son or daughter.
right of action against employers who violate its provisions.
U.S.C.
§
29
2617.
(b) Application of the Law to the Facts
Plaintiff alleges
that
she was unlawfully
terminated
in
retaliation for taking FMLA leave following the birth of her second
child.
See 29 C.F.R.
§
825.220 (c).
As with Title VII claims, the
McDonnell-Douslas framework applies to those plaintiffs who can
state a prima facie case of retaliation.
For the reasons stated in
§
Hunt, 277 F.3d at 757.
III.A.l, above, the court concludes
that plaintiff has raised a genuine issue of material fact for
trial as to whether defendants discharged her in retaliation for
having taken maternity leave.
For the reasons stated below, the
court also concludes that plaintiff has raised a genuine issue of
material fact for trial as to whether defendants violated the FMLA
by failing to return plaintiff to an equivalent position following
her maternity leave.
The undisputed evidence is that plaintiff's job duties still
existed within the company during and after her maternity leave,
but that they were given primarily to Rodriguez, with some being
shared
among
other
employees,
including
Wendy
Valdemar
testified, for example, that:
Q.
Who took over the overhead payables during the time
that Katie was on maternity leave?
A.
That was absorbed back into my accounting group.
who
Who took over those duties within your accounting
group?
A.
Multiple people.
Whoever was available.
Q.
Who took over the duties of ordering supplies while
Katie was on maternity leave?
A.
Margarita.
Q.
Who took over Katie's timekeeper duties while she
was on maternity leave?
A.
Margarita and myself.
Q.
And do you know if anybody took over the things
that Katie was doing to help the help desk and the
managers with the website?
A.
That came back to me . 3 7
Because defendants have failed to present any evidence showing that
these duties were returned to plaintiff following her maternity
leave, the court concludes that plaintiff has raised a genuine
issue of material
fact for trial that precludes granting the
defendants' motion for summary judgment on her FMLA claims.
B.
Plaintiff' s TCHRA Claims
Plaintiff alleges that defendants terminated her employment in
violation of rights protected by the TCHRA.38 Like Title VII, the
TCHRA makes
it unlawful
for an employer to discharge and/or
discriminate against an individual because of such individual's
3
7 Deposition of Wendy Valdemar, Exhibit B to Defendants'
~
MSJ, Docket Entry No. 14, p. 27:3-19.
38~laintiff'sAmended Complaint, Docket Entry No. 13, pp. 5-6
¶I¶
22-23.
age.
Tex. Lab. Code
§§
21.051 (I), 21.106 (a).
Because the TCHRA
executes Title VII policies, claims brought under the TCHRA are
analyzed in the same way as cases brought under Title VII.
Pineda
v. United Parcel Services, Inc., 360 F.3d 483, 487 (5th Cir. 2004).
Defendants argue that they are entitled to summary judgment on
plaintifff s TCHRA claims because plaintiff has no evidence that her
gender and/or her pregnancy played any role in either the decision
to change her responsibilities prior to her maternity leave or the
decision to discharge her weeks after
she returned
from her
maternity leave. Defendants also argue that plaintiff cannot rebut
any of their legitimate, nondiscriminatory reasons for the employment actions taken against her.
For the reasons explained above
with respect to plaintiff's Title VII claims, the court concludes
that genuine issues of material fact preclude granting defendantsf
motion
for
summary
judgment on plaintifffs TCHRA
claims
for
employment discrimination.
IV.
Conclusions and Order
For the reasons explained above, the court concludes that
plaintiff has raised genuine issues of material fact for trial as
to whether defendants discharged her because of her pregnancy in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C.
§
2000e et ses. (Title VII), and Chapter 21 of the Texas
Labor Code, and violation of the Family and Medical Leave Act, 29
U.S.C.
§
2601 et ses.
(FMLA).
-22-
Accordingly,
Defendantsf CEVA
Freight, LLC, and CEVA Logistics US, Incfs Motion for Summary
Judgment (Docket Entry No. 14) is DENIED.
SIGNED at Houston, Texas, on this 8th day of November, 2012.
UNITED STATES DISTRICT JUDGE
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