Bautista v. Quest Diagnostics Clinical Laboratories, Inc. et al

Filing 32

MEMORANDUM AND ORDER DENIED 17 MOTION for Summary Judgment and Supporting Brief(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GLENDA BAUTISTA,
Plaintiff,
v.
QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC., et al.,
Defendants.

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CIVIL ACTION NO. H-11-4162

MEMORANDUM AND ORDER
This employment case is before the Court on the Motion for Summary
Judgment [Doc. # 17] filed by Defendants Quest Diagnostics Clinical Laboratories,
Inc. and Quest Diagnostics Inc. (collectively, “Quest”), to which Plaintiff Glenda
Bautista filed a Response [Doc. # 27], and Quest filed a Reply [Doc. # 29]. The Court
has reviewed the full record in this case. Based on this review and the application of
relevant legal authorities, the Court denies Defendant’s Motion for Summary
Judgment.
I.

BACKGROUND
The majority of the relevant facts in this case are in dispute. The statements in

this Background section are based on the parties’ conflicting evidence and are not
intended in any way to indicate a finding as to any disputed fact.

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Quest provides diagnostic testing services for various entities, including
healthcare providers and employers. Plaintiff was hired in April 2008 as the
Supervisor of Immunology, Serology, and Molecular Medicine (“Immunology
Supervisor”). She was 66 years old at the time she was hired. As Immunology
Supervisor, Plaintiff was directly responsible for the supervision of lab technicians
and assistants who were testing blood samples for immunological and infectious
diseases.
In February 2009, Lab Manager Concepcion “Bobbie” Abadilla, Plaintiff’s
supervisor, conducted Bautista’s annual performance review. Abadilla’s overall
performance rating of Plaintiff was “Achieves Expectations.” Abadilla noted that
Plaintiff needed to improve her leadership skills.
On October 7, 2009, Lead Technician (“Lead Tech”) Lea Vivar reported to
Plaintiff that Veronica Wade, one of the lab technicians under Plaintiff’s supervision,
had made a serious error while conducting tests on the Integra machine. Specifically,
rather than conduct a new quality control run for each batch of one hundred tests,
Wade reused the initial control values by pressing the “re-transmit” button on the
machine. Wade is African-American.
On October 8, 2009, Plaintiff discussed the error with Wade at the beginning
of Wade’s shift. Plaintiff worked the day shift at Quest, while Wade worked a shift

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that began at midnight. On October 13, 2009, Plaintiff learned that Wade had again
used the “re-transmit” button on October 10, 2009, to reuse initial control values
rather than run new quality controls. The next day, Plaintiff requested a meeting with
Abadilla, Lab Director Olinda Jehovics, and HR Generalist Andrea Nicolas to discuss
Wade’s errors on the Integra machine. At the conclusion of the meeting, Plaintiff was
directed to retrain Wade on the Integra machine and to issue Wade a “Documented
Discussion,” the second level of discipline in Quest’s progressive discipline
procedure.
As part of her retraining, Wade was required to recite the standard operating
procedure (“SOP”) for the machine she was using each day. As will be discussed in
more detail below, there is a fact dispute regarding who proposed the recitation
requirement. Wade recited the SOPs to Plaintiff for a number of days, after which she
was instructed to recite the SOPs to a Senior Tech co-worker. Wade complained that
she felt humiliated having to recite the SOPs to a co-worker, and Plaintiff has
presented evidence that she immediately began working with Wade to find a more
acceptable procedure. Plaintiff discussed the situation with Andrea Nicholas in HR,
who agreed with Plaintiff that the recitation procedure could be discontinued.
Additionally, Abadilla instructed Plaintiff to remove Wade from the Integra
machine and assign her to work on the ECI machine. Plaintiff later learned that Wade,

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although assigned to work on the ECI machine, had traded machines with a co-worker
and continued to work on the Integra machine.
At a meeting with Wade on October 27, 2009, Wade complained that Plaintiff
had engaged in harassment by requiring her to recite the SOPs. Wade presented a
written statement and advised that she had contacted an attorney. Wade claimed also
that Lead Tech Lea Vivar had instructed her to re-transmit in order to run as many
tests as possible during her shift. Vivar denied having told Wade to re-transmit and,
indeed, it was Vivar who identified and reported the errors caused by the retransmission.
Quest conducted an investigation of Wade’s allegations and, on November 10,
2009, terminated Plaintiff’s employment. Plaintiff was 68 years old at that time. On
March 1, 2010, German Vargas, age 50, was hired to replace Plaintiff as the
Supervisor of Immunology, Serology, and Molecular Medicine at Quest.
Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on February 4, 2010. On August 31, 2011, the
EEOC issued a Notice of Right to Sue. Plaintiff filed this lawsuit on December 1,
2011, asserting that her discharge was a violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. After an adequate time to

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complete discovery, Quest filed its Motion for Summary Judgment. The Motion has
been fully briefed and is now ripe for decision.
II.

SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with any affidavits filed in support
of the motion, show that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The
moving party bears the burden of demonstrating that there is no evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Nat’l
Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5th Cir. 2008).
If the moving party meets this initial burden, the burden shifts to the nonmovant
to set forth specific facts showing the existence of a genuine issue for trial. See Hines
v. Henson, 293 F. App’x 261, 262 (5th Cir. 2008) (citing Pegram v. Honeywell, Inc.,
361 F.3d 272, 278 (5th Cir. 2004)). The Court construes all facts and considers all
evidence in the light most favorable to the nonmoving party. Nat’l Union, 532 F.3d
at 401.
III.

ANALYSIS
The ADEA prohibits an employer from discharging or otherwise discriminating

against an employee because of the employee’s age. See Miller v. Raytheon Co., 716

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F.3d 138, 144 (5th Cir. 2013) (citing McClaren v. Morrison Mgmt. Specialists, Inc.,
420 F.3d 457, 461 (5th Cir. 2005)). A plaintiff must prove by a preponderance of the
evidence that “but for” her age, the employer would not have made the challenged
decision. See Gross v. FBL Fin. Servs., 557 U.S. 167, 177–78 (2009).
A.

Prima Facie Case of Age Discrimination

In cases in which the plaintiff relies on circumstantial evidence, the Court
applies the burden-shifting framework from McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). The plaintiff is first required to establish a prima facie case of
age discrimination in connection with the termination of her employment by showing
that (1) she was over the age of forty; (2) she was qualified for her position; (3) she
was discharged; and (4) she was “either i) replaced by someone outside the protected
class, ii) replaced by someone younger, or iii) otherwise discharged because of [her]
age.” Katseanes v. Time Warner Cable, Inc., 511 F. App’x 340, 344 (5th Cir. Feb. 6,
2013) (quoting Jackson v. Cal–Western Packaging Corp., 602 F.3d 374, 378 (5th Cir.
2010)).
Plaintiff has satisfied her burden to establish a prima facie case of age
discrimination. It is undisputed that Plaintiff was over the age of forty, that she was
discharged, and that she was replaced by someone significantly younger. Plaintiff

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also has presented evidence that she was qualified for her position, having performed
the job for approximately eighteen months and received a favorable evaluation.1
B.

Defendant’s Articulated Reason for Discharge

Where, as here, the plaintiff satisfies her burden to establish a prima facie case,
the defendant must articulate a non-discriminatory reason for its decision. See Reeves
v. Sanderson Plumbing Prods., 530 U.S. 133, 142-43 (2000). Quest states that
Plaintiff discriminated against Wade on the basis of her race. Additionally, Quest
identifies a number of acts of alleged misconduct by Plaintiff in connection with the
Wade situation:
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failing to review fully all control levels from Wade’s October 7 shift;

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failing to investigate control values from previous dates;

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failing to follow Abadilla’s instruction and ensure that Wade was removed
from the Integra machine;

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failing to retrain Wade on the Integra machine;

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implementing an inappropriate discipline of Wade by requiring Wade to recite
the SOPs for the ECI machine to a peer and to Bautista’s voicemail for a period
of 2 weeks;

1

Indeed, a plaintiff challenging the termination of his employment “can ordinarily
establish a prima facie case of age discrimination by showing that he continued to
possess the necessary qualifications for his job at the time of the adverse action.”
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). This is
construed to mean that the “plaintiff had not suffered physical disability or loss of a
necessary professional license or some other occurrence that rendered him unfit for
the position for which he was hired.” Id. at 1506 n.3.

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misrepresenting to management in the initial October 14 meeting that she had
coached Wade on October 8 not to “re-transmit’ when she had actually just
instructed Wade to follow the SOPs;

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coaching Wade on October 8 via telephone instead of in person;

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failing to ensure that Wade was completely trained on the Integra machine;

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failing to cross-train Wade despite Wade’s request;

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failing to process Wade’s request to change to full-time status, despite
department overtime; and

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being unable and/or refusing to recognize and acknowledge any wrong doing.

See Motion for Summary Judgment, p. 16.
C.

Plaintiff’s Evidence of Pretext

Because Quest has articulated non-discriminatory reasons for its decision to
terminate Plaintiff’s employment, the burden shifts back to her to show the pretextual
nature of the Quest’s proffered reason. Pretext may be established “either through
evidence of disparate treatment or by showing that the employer’s proffered
explanation is false or ‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572,
578 (5th Cir. 2003).
1.

Race Discrimination

In this case, Plaintiff has presented strong evidence that raises a genuine issue
of material fact regarding whether Quest’s assertion that she discriminated against

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Wade on the basis of Wade’s race is false. Judie Hoffman, Quest’s Director of
Human Resources, testified in deposition that she did not believe that Plaintiff was a
racist and that she thinks Plaintiff treated Wade differently, but not that she believes
Plaintiff treated Wade differently because Wade is African-American. See Hoffman
Depo., Exh. 2 to Response, pp. 9-10.
2.

Wade Situation

Plaintiff has presented evidence that the allegations in Wade’s written statement
were false or misleading. Lead Tech Vivar testified that she did not tell Wade to retransmit data to run more tests during her shift. Wade complained that Plaintiff made
“midnight phone calls” to her, but it is undisputed that the calls were to Wade at the
beginning of her shift at work – which began at midnight. Wade complained of
“constant” emails. Plaintiff has presented evidence that the emails were work-related,
respectful, and addressed issues raised by Wade.
Plaintiff has presented evidence that calls into question the adequacy of Quest’s
investigation. Plaintiff has presented evidence that when she attempted to explain her
position to supervisors, they told her “they didn’t want to hear it.” Plaintiff has
presented evidence that, when she attempted to explain her position, Hoffman called
her “annoying.” The investigation summary includes only Ms. Wade’s allegations
and none of Plaintiff’s explanations. These alleged shortcomings in the investigation

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suggests that the investigation and its result may have been one-sided and resultdriven.
Plaintiff has presented evidence that raises a genuine issue of material fact
regarding whether Defendant’s assertions regarding her conduct during the Wade
situation are false. With reference to Quest’s assertion that Plaintiff failed to review
all control levels from Wade’s October 7 and prior shifts, Plaintiff has presented
evidence that she began the review by conducting a check of five randomly selected
samples from each batch to determine whether they were valid notwithstanding
Wade’s error. She began the review in this manner in an attempt to balance the costs
of re-running each test, while still fully evaluating the effect of Wade’s error. Lead
Tech Vivar agreed this was a valid procedure. After this initial phase of review was
completed, Plaintiff followed her supervisors’ instructions to rerun all tests.
With reference to Quest’s assertion that it decided to terminate Plaintiff’s
employment because she failed to follow Abadilla’s instruction to remove Wade from
the Integra machine, Plaintiff has presented evidence that she followed Abadilla’s
instructions and scheduled Wade to work on a different machine. Plaintiff has
presented evidence that Wade, without permission, traded machines with a co-worker
and returned to work on the Integra machine despite being scheduled to work on a
different machine as required by Abadilla.

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Quest states that Plaintiff was discharged because she failed to retrain Wade on
the Integra machine (and failed to ensure that Wade was retrained on the Integra
machine). Plaintiff has presented evidence that Wade was already fully trained on the
Integra machine. Plaintiff has presented evidence that she followed the procedure of
having Wade recite the SOPs for the machine on which she was working – the ECI
machine. Plaintiff has presented evidence that, shortly after Wade was removed from
the Integra machine and before she could be fully “retrained,” the Integra machine was
removed from the department.
Quest relies heavily on its assertion that Plaintiff implemented an inappropriate
discipline by having Wade recite the SOPs for two weeks. Plaintiff has presented
evidence that her supervisors, Jehovics and Abadilla, suggested the discipline of
having Wade recite the SOPs. Plaintiff expressed her disagreement with the proposed
disciplinary procedure but, ultimately, followed her supervisors’ instructions. When
Wade complained about reciting the SOPs to a co-worker, Plaintiff requested and
obtained HR approval to discontinue the recitation procedure.
Quest asserts that Plaintiff “misrepresented” to management that she had
instructed Wade not to “re-transmit” data. Plaintiff has presented evidence that she
instructed Wade to follow the SOPs carefully. It is undisputed that the SOPs do not
allow for using the “re-transmit” button except in rare situations involving technical

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difficulties. Plaintiff’s evidence indicates that “following the SOPs” would include
not using the “re-transmit” button and, as a result, there was no misrepresentation.
Quest claims that it terminated Plaintiff’s employment because she discussed
Wade’s October 7 error with her on October 8 by telephone rather than in person. It
is undisputed that Plaintiff worked the day shift and Wade’s shift began at midnight.
As a result, Plaintiff’s evidence shows that the way to discuss the matter with Wade
at the earliest time would be to telephone her at midnight – the beginning of her shift.
Quest asserts that Plaintiff failed to comply with Wade’s request for crosstraining. Plaintiff has presented evidence that Wade made a request for cross-training
early in the summer of 2009. At that time, no cross-training was allowed because of
staff shortages resulting from employees’ vacation schedules. After the summer
vacations ended, Plaintiff learned that some of the equipment would be removed from
the department. As a result, Plaintiff waited to determine what equipment would
remain in the department for purposes of Wade’s cross-training. Wade made no
objection at the time and made no requests for expedited cross-training.
Quest claims that it discharged Plaintiff because she failed to process Wade’s
request for full-time status. It is undisputed that Wade made only one request to
become a full-time employee. Plaintiff has presented evidence that she asked Wade
to submit in writing her availability for specific additional hours. Abadilla told

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Plaintiff this was necessary in order to justify increasing Wade’s hours from part-time
to full-time. Certain tests on certain machines required that the testing be completed
without interruption. As a result, it was necessary that Wade be available to work
specific additional hours that would allow the completion of these tests during those
additional hours. It is undisputed that Wade failed to provide that information, and
Plaintiff has presented evidence that Abadilla instructed her not to submit the change
form reclassifying Wade as a full-time employee without that information.
Quest asserts that Plaintiff “was unable and/or refused to recognize and
acknowledge any wrong doing.” See Motion for Summary Judgment, p. 16. As
discussed above, Plaintiff has presented substantial evidence that Defendants’
allegations against her are false and that she committed no “wrong doing.”
Consequently, a refusal to acknowledge misconduct would be neither surprising nor
a basis for termination.
Plaintiff has presented evidence that, if proven at trial, would show that Quest’s
asserted reasons for terminating her employment were false and were, instead, a
pretext for age discrimination. Plaintiff’s evidence could prove by a preponderance
of the evidence that but for her age, she would not have been discharged.

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3.

Statements Regarding Plaintiff’s Age

Plaintiff has presented evidence that, immediately after she was discharged,
Abadilla told Plaintiff that she would be ok financially because she was old enough
to receive Social Security benefits. Plaintiff has presented evidence that Abadilla
made other statements to her regarding her age, specifically that training Plaintiff was
“not a priority” and that she and Abadilla were “old ladies” who were “slow to make
decisions.”
This evidence does not rise to the level of direct evidence of age discrimination.
See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).
However, the statements are evidence that, combined with other evidence discussed
above, raises a genuine issue of material fact regarding whether Defendants’ proffered
reasons for terminating Plaintiff’s employment were a pretext for age discrimination.
See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000).
4.

“Same Actor” Defense

Quest argues that it is entitled to summary judgment based on the “same actor”
defense. The “same actor” defense involves the situation where “the individual who
allegedly discriminated against the plaintiff was the same individual who hired the
plaintiff” and it “gives rise to an inference that discrimination was not the motive
behind plaintiff's termination.” See id. at 228 n.16. The “same actor” defense,

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however, simply gives rise to an inference; it does not “rule out the possibility that an
individual could prove a case of discrimination.” See id.; Alzuraqi v. Group 1
Automotive, Inc., 921 F. Supp. 2d 648, 662 (N.D. Tex. 2013).
In this case, it is unclear from the record whether the same group of individuals
were responsible for hiring and firing Plaintiff. Quest has presented evidence that
Plaintiff was hired “with the approval of Lab Director Lillian Rayford, Lab Manager
Abadilla, and HR Recruiter Maria Oprea. See Affidavit of Judie Hoffman, Exh. 1 to
Motion for Summary Judgment, ¶ 6 (emphasis added). Hoffman stated that the
decision to terminate Plaintiff’s employment was made by Hoffman, Jehovics,
Abadilla, Rayford, and HR Manager Yvonne Martinez. See id., ¶ 20. Because there
were a number of individuals involved in the decision to terminate Plaintiff’s
employment, some of whom were not involved in the decision to hire her, the “same
actor” inference is inapplicable. See Black v. Pan Am. Labs., L.L.C., 646 F.3d 254,
260 n.4 (5th Cir. 2011).
To the extent Defendants base their “same actor” defense on the involvement
of Abadilla in both the decision to hire and the decision to fire, the “same actor”
inference is not appropriate where there are changed circumstances between the hiring
decision and the firing decision. See Tellepsen Pipeline Servs. Co. v. N.L.R.B., 320
F.3d 554, 569 (5th Cir. 2003); Garza v. Ranier L.L.C., 2013 WL 3967786, *6 (W.D.

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Tex. July 31, 2013). In this case, after Plaintiff was hired and before she was fired,
Wade made an allegation of race discrimination. Abadilla (age 61 at the time Plaintiff
was discharged) was herself implicated in the Wade situation. On December 2, 2009,
after she acquiesced in the termination of Plaintiff’s employment, Abadilla was issued
a “Career Final Documented Discussion” and elected to resign. These changed
circumstances, primarily Wade’s allegation of race discrimination, render the “same
actor” inference inapplicable.
IV.

CONCLUSION AND ORDER
Plaintiff has presented evidence from which the trier of fact could conclude that

her employment would not have been terminated but for her age. The presence of a
genuine issue of material fact precludes summary judgment, and it is hereby
ORDERED that Defendants’ Motion for Summary Judgment [Doc. # 17] is
DENIED. The parties’ Joint Pretrial Order remains due October 23, 2013, and the
case remains scheduled for docket call on November 4, 2013.
SIGNED at Houston, Texas, this 30th day of August, 2013.

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