Jones v. FJC Security Services Inc.
Filing
39
OPINION AND ORDER granting 27 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LATIA M. JONES,
Pro Se Plaintiff,
VS.
FJC SECURITY SERVICES, INC.,
Defendant.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-12-3688
OPINION AND ORDER
Pending
before
the
Court
in
the
above
referenced
cause
alleging racial and gender discrimination in Defendant FJC Security
Services, Inc.’s (“FJC’s”) failure to provide a full-time position,
failure to promote, and wrongful termination,
retaliation, and a
hostile work environment under Title VII of the Civil Rights Act of
1965, as amended, 42 U.S.C. § 2000e, et seq., is FJC’s motion for
summary judgment (instrument #27). Pro se Plaintiff LaTia M. Jones
(“Jones”) has failed to file a response.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
favorable
to
the
nonmovant,
the
court
determines
that
“the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, 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.”
A dispute of material
fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
-1-
477 U.S. 242, 248 (1986).
Initially the movant bears the burden of identifying those
portions of the pleadings and discovery in the record that it finds
demonstrate the absence of a genuine issue of material fact on
which the nonmovant bears the burden of proof at trial; a “complete
failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v.
National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v.
Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence of
evidence to prove an essential element of the nonmovant’s case on
which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate that
there is a genuine issue of material fact for trial.
National
Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712
(5th Cir. 1994).
The nonmovant may not rely merely on allegations,
denials in a pleading or unsubstantiated assertions that a fact
issue exists, but must set forth specific facts showing the
existence of a genuine issue of material fact concerning every
element of its cause(s) of action.
Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
Conclusory
allegations
preclude summary judgment.
unsupported
by
evidence
will
not
National Ass’n of Gov’t Employees v.
-2-
City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996).
“‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”
State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).
“Nor is the ‘mere scintilla of evidence’ sufficient;
‘there must be evidence on which the jury could reasonably find for
the plaintiff.’”
Fifth
Circuit
Id., quoting Liberty Lobby, 477 U.S. at 252. The
requires
probative evidence.’”
the
nonmovant
to
submit
“‘significant
Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).
“If the evidence is merely colorable,
or
probative,
is
not
granted.”
significantly
summary
judgment
may
be
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th
Cir. 1999), citing Celotex, 477 U.S.
at 322, and Liberty Lobby,
477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace
v.
Texas
Tech
Univ.,
80
F.3d
1042,
1047
(5th
Cir.
1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the
party opposing the motion for summary judgment, “only evidence-–not
argument, not facts in the complaint--will satisfy’ the burden.”),
citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th
-3-
Cir. 1991).
The nonmovant must “go beyond the pleadings and by
[his] own affidavits, or by depositions, answers to interrogatories
and admissions on file, designate specific facts showing that there
is a genuine issue of material fact for trial.”
Giles v. General
Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477
U.S. at 324.
The court must consider all evidence and draw all inferences
from
the
nonmovant.
factual
record
in
the
light
most
favorable
to
the
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986); National Ass’n of Gov’t Employees v. City Pub.
Serv. Board, 40 F.3d at 712-13.
It is well established in the Fifth Circuit that “[a]
federal court may not grant a ‘default’ summary judgment where no
response has been filed.”
Bradley v. Chevron U.S.A., Inc., No.
Civ. A. 204CV092J, 2004 WL 2847463, *1 (N.D. Tex. Dec. 10, 2004),
citing Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir.
1988);
Hibernia
Nat.
Bank
v.
Administracion
Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
Cent.
Sociedad
Nevertheless, if
no response to the motion for summary judgment has been filed,
the court may find as undisputed the statement of facts in the
motion for summary judgment.
Id. at *1 and n. 2, citing id.; see
also Thompson v. Eason, 258 F. Supp. 2d 508, 515 (N.D. Tex.
2003)(where no opposition is filed, the nonmovant’s unsworn
pleadings
are
not
competent
summary
judgment
movant’s evidence may be accepted as undisputed).
-4-
evidence
and
See also Unum
Life Ins. Co. of America v. Long, 227 F. Supp. 2d 609 (N.D. Tex.
2002)(“Although the court may not enter a ‘default’ summary
judgment,
it
may
accept
evidence
submitted
by
[movant]
as
undisputed.”); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D.
Tex. 1996)(“A summary judgment nonmovant who does not respond to
the motion is relegated to [his] unsworn pleadings, which do not
constitute summary judgment evidence.”).
Allegations of the Original Complaint (#1)
Jones is a black African American female, who states that
she was rehired by FJC in February 2010, when Mark Machi,
President of Federal Services FJC, promised Plaintiff a full-time
job and the right to choose her work location.
Instead Captain
Albert Johnson (“Johnson”) of FJC assigned her to work nights in
a location that was isolated from other employees and told her
that “[i]t was Management’s Decision.”
Afraid she might lose her
job if she protested, she accepted the assignment.
9, 2010 she was laid off.
Then on April
There were no daytime openings at that
location, so Jones contacted FJC’s Project Manager, Greg, who
told her that Johnson would take care of her.
Johnson contacted
Jones and reassigned her to another location, again secluded from
other employees and in scorching heat.
When she asked for a
better assignment, Johnson removed her from the work schedule so
she had no hours of work.
When she asked him for work, he told
her that there was no work for her.
Jones claims that during this time two male employees of FJC
received complaints from their client and the client asked that
-5-
the employees be removed from the client’s site, but they were
not terminated for violating company policy nor in fear of losing
a client.
the FJC.
Instead the two were re-assigned to other positions in
Jones claims that positions were available for her to
work, but that she was repeatedly told there was no available
work for her.
differently
She contends that female employees were treated
than
their
male
counterparts with regard to
discipline and termination.
Jones then filed a grievance with her labor union, the
United
Government
Security
Officers
of
America
Local
237,
complaining of the lack of full-time hours, which she claims had
been guaranteed to her by Machi at the time of her hiring.
Her
grievance purportedly was ignored and discarded at the local and
international levels.
She filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) on July 10,
2010, and a determination was rendered on September 19, 2012.
Since she filed the charge of discrimination, she alleges that
“countless and unexplained disciplinary actions have been taken
against” her by Johnson without just cause.
She asserts that she
is continuously being “denied benefits and forced to accept
unpaid wages.”
Applicable Law
Under section 703(a) of Title VII, 42 U.S.C. § 2000e2(a)(1), it is “an unlawful employment action for an employer .
. . to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
-6-
his compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or
national origin.”
Under the statute, suit may be brought under two distinct
theories of discrimination, disparate treatment and disparate
impact. International Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977); Pacheco v. Mineta,448 F.3d 783, 787 (5th Cir.
2006), cert. denied, 549 U.S. 888 (2006).
Title VII expressly
prohibits both (1) intentional discrimination based on race,
color, religion, sex or national origin, known as “disparate
treatment,”
as
well
as
(2)
an
employer’s
facially
neutral
practices that are discriminatory in operation against protected
groups (race, color, religion, sex or national origin) and not
required by the nature of the job, known as “disparate impact”.
42
U.S.C.
§§
2000e-2(a)(1)
and
2000e(k)(1)(A);
Ricci
v.
DeStefano, 129 S. Ct. 2658, 2672-73 (2009); Pacheco, 448 F.3d at
787.
The instant suit is one for disparate treatment, which
requires proof of discriminatory motive. Pacheco, 448 F.3d at
787.
Plaintiffs claiming employment discrimination must exhaust
administrative remedies by filing a timely charge with the EEOC
and receiving a right-to-sue notice.
Taylor v. Books A Million,
Inc., 296 F.3d 376, 378-79 (5th Cir. 2002).
Failure to exhaust
administrative remedies “is not a procedural ‘gotcha’ issue,” but
“a mainstay of proper enforcement of Title VII remedies.”
-7-
McClain v. Lufkin Industries, Inc., 519 F.3d 364, 272 (5th Cir.
2008), cert. denied, 129 S. Ct. 198 (2008).
A private plaintiff
must exhaust its administrative remedies before seeking relief by
filing an administrative charge with the EEOC.
2000e-(5)(b); id.
42 U.S.C. §
Under Title VII, 42 U.S.C. § 2000e-5(e)(1),
a charge of discrimination must be filed with the EEOC within 180
days after the occurrence of the alleged discriminatory practice
unless the complainant has instituted proceedings with a state or
local agency with the authority to grant or seek relief from
unlawful employment practices, under which circumstances the
period for filing such a charge with the EEOC is extended to 300
days.
Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir.
1994).
In Texas, the qualifying state agency originally was the
Texas Commission on Human Rights (“TCHR”).
Effective March 1,
2004, the Texas Workforce Commission, Civil Rights Division,
assumed the powers and duties of the TCHR.
Little v. Texas Dept.
of Crim. Justice, 148 S.W. 3d 374, 377-78 (Tex. 2004).
A plaintiff may establish a claim of discrimination under
Title VII by presenting direct evidence or by using the indirect
method of proof set out in McDonnell Douglas Corp. v. Green,
411
U.S. 792 (1973).
“Direct evidence proves intentional discrimination without
inference or presumption when believed by the trier of fact.”
Jones v. Overnite Transportation Co., 212 Fed. Appx. 268, 272 (5th
Cir. 2006), citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d
-8-
893, 897 (5th Cir. 2002).
“In the context of Title VII, direct
evidence includes any statement or written document showing a
discriminatory motive on its face.”
Fierros v. Texas Dept. of
Health, 274 F.3d 187, 195 (5th Cir. 2001), citing Portis v.
National Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir,
1994); Overnite Transportation, 212 Fed. Appx. at 272.
If a
plaintiff produces direct evidence of discrimination, he may
“bypass
the
McDonnell
Douglas
burden-shifting
framework
[discussed infra] commonly applied in discrimination cases and
proceed directly to the question of liability.”
Moore v. U.S.
Dept. of Agric., 55 F.3d 991, 995 (5th Cir. 1995); Fierros v.
Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir. 2001); Stone
v. Parish of East Baton Rouge, No. 08-31008, 2009 WL 2169122, *2
(5th Cir. July 20, 2009).
“In such ‘direct evidence’ cases, ‘the
burden
to
of
proof
shifts
the
employer
to
establish
by
a
preponderance of the evidence that the same decision would have
been made regardless of the forbidden factor.’”
Fierros, 274
F.3d at 192, quoting Brown v. East Miss. Elec. Power Assoc., 989
F.2d 858, 861 (5th Cir. 1993).
Under
the
McDonnell
Douglas
framework
applied
to
circumstantial evidence cases, a plaintiff must first make a
prima facie case of employment discrimination.
To establish a
prima facie case of intentional discrimination under a disparate
treatment theory Plaintiff must demonstrate that she “(1) is a
member of a protected class (here that she is black and female);
-9-
(2) was qualified for the position; (3) was subjected to an
adverse employment action; and (4) was replaced by someone
outside
the
protected
class,
or
in
the
case
of
disparate
treatment, shows that other similarly situated employees [not in
the protected class] were treated more favorably.”
Bryan v.
McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004).
An “adverse employment action for Title VII discrimination
claims based on race, color, religion, sex, or national origin
“‘include[s] only ultimate employment decisions such as hiring,
granting leave, discharging, promoting, or compensating.’” McCoy
v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007), quoting
Green v. Administrator of Tulane Educ. Fund, 284 F.3d 641, 657
(5th Cir. 2002). “Title VII was only designed to address ‘ultimate
employment decisions, not to address every decision made by
employers that arguably might have some tangential effect upon
those ultimate decisions.’”
Burger v. Central Apartment Mgmt.,
Inc., 168 F.3d 875, 878 (5th Cir. 1999)(emphasis in original),
quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th
Cir.), cert. denied, 522 U.S. 932 (1997).
If an employer’s
action fails to have more than a “mere tangential effect on a
possible
future
ultimate
employment
decision,”
constitute an adverse employment action.
708.
it
does
not
Mattern, 104 F.3d at
To be actionable, an adverse employment decision must be a
“tangible employment action that constitutes a significant change
in employment status, such as hiring, firing, failing to promote,
-10-
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”
Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998).
“[A] decision made by an employer that only limits an
employee’s opportunities for promotion or lateral transfer does
not qualify as an adverse employment action under Title VII.”
Banks v. East Baton Rouge Parish School Board, 320 F.3d 570, 575
(5th Cir. 2003), citing Burger, 168 F.3d at 878-80 (holding that
an employer’s refusal of an employee’s request for a “purely
lateral transfer” does not qualify as an adverse employment
action under Title VII).
See also Dollis v. Rubin, 77 F.3d 777,
781-82 (5th Cir. 1995)(affirming decision that an employer’s
denial of a “desk audit” to a female employee is not an adverse
personnel action under Title VII, even though the employee
claimed
that
opportunities”),
the
decision
overruled
restricted
in
part
on
her
other
“promotional
grounds
in
retaliation cases only, Burlington N. and Santa Fe Ry. v. White
(hereinafter
“Burlington
N.”),
548
U.S.
53
(2006)(rejecting
limiting actionable retaliation claims to ultimate employment
decisions and redefining adverse employment action in retaliation
context as any action that might have dissuaded a reasonable
worker from making or supporting a charge of discrimination). By
themselves, documented reprimands, though potentially affecting
future employment decisions, do not qualify as adverse employment
decisions.
Thompson v. Exxon Mobil Corp., 344 F. Supp. 2d 971,
-11-
981 (E.D. Tex. 2004), citing Felton v. Polles, 315 F.3d 470, 487
(5th Cir. 2002)(abrogated on other grounds in retaliation cases
only by Burlington N.), and Raggs v. Mississippi Power & Light
Co., 278 F.3d 463, 470 (5th Cir. 2002).
The same is true of
negative performance evaluations, even if they were not deserved.
Thompson, 344 F. Supp. 2d at 981 (and cases cited therein).
Disciplinary write-ups also fail to qualify as adverse employment
actions.
Id. at 982, citing Mattern, 104 F.3d at 707, and
Carthon v. Johnson Controls, Inc., 100 Fed. Appx. 993, 997 (5th
Cir. 2004)(The employee’s “receipt of a single disciplinary
warning-–without an attendant change in the terms or conditions
of his employment–-does not qualify as an ultimate employment
decision.”).
See also Walker v. Thompson, 214 F.3d 615, 629 (5th
Cir. 2000)(employer’s decision to
take away a big account from
an employee after she filed an EEOC complaint did not constitute
an adverse employment action even though it decreased her chances
of advancement); Davis v. Miss. Transp. Commission, 618 F. Supp.
2d 559, 564 (S.D. Miss. 2009)(“[W]e have repeatedly held that an
employment action that limits an employee’s future opportunities
for promotion, but does not affect the employee’s job duties,
compensation,
or
benefits,
does
not
qualify
as
an
adverse
employment action.”).
For the fourth prong, “similarly situated” employees are
employees who are treated more favorably in ”nearly identical”
-12-
circumstances1; the Fifth Circuit defines “similarly situated”
narrowly.
Silva v. Chertoff, 512 F. Supp. 2d 792, 803 n.33 (W.D.
Tex. 2007).2
Similarly situated individuals must be “nearly
1
See Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 25960 (5th Cir. 2009), discussing “similarly situated” employees:
Employees with different supervisors, who work for
different divisions of a company or who were the
subject of adverse employment actions too remote in
time from that taken against the plaintiff generally
will not been deemed similarly situated. Likewise,
employees who have different work responsibilities or
who are subjected to adverse employment action for
dissimilar violations are not similarly situated. This
is because we require that an employee who proffers a
fellow employee as a comparator demonstrate that the
employment actions at issue were taken “under nearly
identical circumstances.” The employment actions being
compared will be deemed to have been taken under nearly
identical circumstances when the employees being
compared held the same job or responsibilities, shared
the same supervisor or had their employment status
determined by the same person, and have essentially
comparable violation histories. And, critically, the
plaintiff’s conduct that drew the adverse employment
decision must have been “nearly identical” to that of
the proffered comparator who allegedly drew dissimilar
employment decisions. If the “difference between the
plaintiff’s conduct and that of those alleged to be
similarly situated accounts for the difference in
treatment received from the employer,” the employees
are not similarly situated for the purposes of
employment discrimination analysis. [footnotes
omitted]
2
District Court Judge Montalvo in Silva listed the
following examples in n.33:
Wheeler [v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir.
2005)], (finding insufficiently identical circumstances
where the terminated white plaintiff and a black
manager who remained employed had the same supervisor,
were both company directors, and were both accused of
removing company assets at relatively the same time;
the Court of Appeals noted that the white plaintiff
-13-
identical” and must fall outside the plaintiff’s protective
class.
Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir.
2005).
Where different decision makers or supervisors are
involved, their decisions are rarely “similarly situated” in
lied repeatedly during the course of the company’s
investigation, while the black employee admitted her
actions; in addition, the value of the property the
black employee removed was “dramatically less” than the
property the white plaintiff removed); Mayberry [v.
Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.
1995)](finding that the plaintiff had not shown “nearly
identical” circumstances merely because he produced
evidence that white and black employees in the same
position had scrapped parts due to the employer’s
operator error or poor workmanship, but were not
disciplined; the plaintiff had not shown that the
undisciplined employees had, like him, a history of
poor work performance and scrapped parts damage
amounting to $8,000); Little v. Republic Refining Co.,
924 F.2d 93, 97 (5th Cir. 1991)(concluding that the
plaintiff had not shown “nearly identical”
circumstances because the employee outside the
plaintiff’s protected class who allegedly received more
favorable treatment did not have the same supervisor);
Smith v. Wal-Mart Stores (no. 471), 891 F.2d 1177, 1180
(5th Cir. 1990)(determining that the plaintiff and the
employee outside her protected class who allegedly
received preferential treatment were not similarly
situated where the employer discharged the plaintiff
because the plaintiff violated its non-fraternization
policy and the other employee’s conduct did not involve
the employer’s non-fraternization policy). “[P]ut
another way, the conduct [or circumstances] at issue is
not nearly identical when the difference between the
plaintiff’s conduct [or circumstances] and that of
those alleged to be similarly situated accounts for the
difference in treatment received from the employer.”
Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 30405 (5th Cir. 2000)(finding that the “striking
differences” between the plaintiff’s and purportedly
similarly situated employees outside the plaintiff’s
protected class “more than account[ed] for the
different treatment they received.”).
-14-
relevant ways for establishing a prima facie case.
Thompson v.
Exxon Mobil Corp., 344 F. Supp. 2d 971 (E.D. Tex. 2004), citing
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)
for
the
proposition
that
“[a]
demonstration
of
substantial
similarity generally requires a showing that a common supervisor
was involved in the decision making”).
See also Perez v. Texas
Dep’t of Criminal Justice, Inst’l Div., 395 F.3d 206, 213 (5th
Cir.
2004)(“We
employees
.
to
.
be
.
have
explained
similarly
consistently
situated
those
that
for
employees’
circumstances, including their misconduct, must have been ‘nearly
identical.’”); Hockman v. Westward Communications, LLC, 282 F.
Supp. 2d 512, 527-28 (E.D. Tex. 2003)(“The ‘nearly identical’
standard, when applied at the McDonnell Douglas pretext stage, is
a stringent standard--employees with different responsibilities,
different supervisors, different capabilities, different work
rule
violations
or
different
disciplinary
records
are
not
considered to be ‘nearly identical.’”), citing Okoye v. Univ. of
Tex. Houston Health Science Center, 245 F.3d 507, 514 (5th Cir.
2001)(Employees are not in nearly identical circumstances when
their
actions
were
reviewed
by
different
supervisors;
“to
establish disparate treatment a plaintiff must show that the
employer ‘gave preferential treatment to [] [another] employee
under ‘nearly identical’ circumstances’ . . .; that is “the
misconduct
for
which
[plaintiff]
was
discharged
was
nearly
identical to that engaged in by . . . [other] employee[s].’”)).
-15-
If the plaintiff makes a prima facie case, there is a
presumption of discrimination, and the burden of production then
shifts
to
the
employer
to
provide
a
legitimate,
non-
discriminatory reason for the adverse employment action. Chevron
Phillips, 570 F.3d at 615.
If the employer meets this burden, the presumption of
discrimination disappears and the plaintiff bears the ultimate
burden of persuading the trier of fact by a preponderance of the
evidence that the defendant intentionally discriminated against
the plaintiff because of her protected status.
Wallace v.
Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001).
To do
so, the plaintiff must produce substantial evidence showing that
the proffered legitimate nondiscriminatory reason is a pretext
for discrimination.
Reeves, 530 U.S. at 143. “Evidence is
‘substantial’
is
if
it
‘of
such
quality
and
weight
that
reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.”
Laxton v. Gap,
Inc., 333 F.3d 572, 579 (5th Cir. 2004). Plaintiff may use either
of two methods to rebut each of the nondiscriminatory reasons
articulated by the employer: pretext or mixed motive. Rachid v.
Jack in The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
For pretext, the plaintiff must show that the defendant’s
proffered explanation is false or “unworthy of credence.” Laxton
v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2004), citing Wallace,
271 F.3d at 221.
One way is to show that the employer treated
-16-
plaintiff more harshly that other “similar situated employees”
for “nearly identical conduct,” i.e, a disparate treatment theory
using comparators.
Wallace, 271 F.3d at 221; Lee v. Kansas City
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
Although the
presumption of discrimination has disappeared, the trier of fact
may consider evidence establishing the plaintiff’s prima facie
case and inferences drawn therefrom in determining whether the
employer’s explanation is pretextual.
Reeves, 530 U.S. at 143.
Coupled with the Plaintiff’s prima facie case, for purposes of
summary judgment the evidence of pretext usually will constitute
sufficient evidence to raise an issue of material fact as to
whether the employer’s reason is credible or merely a pretext for
discrimination or, if its reason is true, that a discriminatory
reason more likely motivated the decision to effect its adverse
employment action.
Reeves, 530 U.S. at 143, 147-49.3
however, additional evidence may be required.
factfinder’s
rejection
of
the
Sometimes,
Id.
employer’s
“[T]he
legitimate,
nondiscriminatory reason for its action does not compel judgment
for the plaintiff. The ultimate question is whether the employer
intentionally
discriminated,
and
proof
that
‘the
employer’s
proffered reason is unpersuasive, or even obviously contrived,
does not necessarily establish that the plaintiff’s proffered
3
In Reeves, the Supreme Court found that the Fifth Circuit
panel “erred in proceeding from the premise that a plaintiff must
always introduce additional, independent evidence of
discrimination.” Reeves, 530 U.S. at 149.
-17-
reason is correct.’
disbelieve
the
In other words, ‘[i]t is not enough . . . to
employer;
the
fact
finder
must
believe
plaintiff’s explanation of intentional discrimination.’”
the
Id. at
146-47 (emphasis in original), citing St. Mary’s Honor Center,
509 U.S. at 511, 524, 519.
“Whether judgment as a matter of law
is appropriate in any particular case will depend on a number of
factors.
Those include the strength of the plaintiff’s prima
facie case, the probative value of the proof that the employer’s
explanation is false and any other evidence that supports the
employer’s case and that properly may be considered on a motion
for judgment as a matter of law.”
Alternatively,
rather
than
Id. at 148-49.
demonstrating
that
the
defendant’s articulated reason for its action is a pretext for
discrimination, the plaintiff may show that the defendant’s
reason for the decision, while true, is only one reason for its
conduct and another motivating factor is plaintiff’s protected
characteristic.4
Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004); Pinkerton v. U.S. Dept. of Educ., 508 F.3d
207, 213 (5th Cir. 2007).
A Title VII plaintiff seeking back pay for employment
discrimination has a duty to mitigate damages, i.e., to “use
reasonable
employment.”
diligence
to
obtain
‘substantially
equivalent’
Ellerbrook v. Lubbock, Texas, 465 Fed. Appx. 324,
4
The Fifth Circuit calls this the “modified McDonnell
Douglas” approach. Rachid, 376 F.3d at 312.
-18-
No. 11-10058, 2012 WL 851621, at *12 (5th Cir. Mar. 14, 2012),
quoting Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir.
1990).
The employer bears the burden of proving a failure to
mitigate.
Id., citing id.
The employee must show that (1)
substantially equivalent work was available and (2) the employer
failed to exercise reasonable diligence to obtain it.
West v.
Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003).
“Substantially equivalent employment is that employment which
affords
virtually
compensation,
job
identical
promotional
responsibilities,
working
opportunities,
conditions,
and
status as the position from which [the former employee] has been
discriminatorily terminated.”
Id.
If the employer shows that
the
use
reasonable
former
employee
did
not
diligence,
the
employer does not have to prove the availability of equivalent
employment.
To
Id.
assert
a
claim
of
retaliation
under
Title
VII,
a
plaintiff with only circumstantial evidence must satisfy the
burden-shifting analysis established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973).
First the plaintiff must
make a prima facie case of retaliation that meets three elements:
(1) the employee engaged in an activity that is protected by
Title VII; (2) the employer took an adverse employment action
against the employee; and (3) there is a causal connection
between the protected activity and the adverse employment action.
Brazoria County, Tex. v. EEOC, 391 F.3d 685, 692 (5th Cir. 2004),
-19-
cited for that proposition in Cooper v. Dallas Police Assoc., 278
Fed. Appx. 318, 320 (5th Cir. 2008), cert. denied, 129 S. Ct. 1912
(2009).
See also McCoy v. City of Shreveport, 492 F.3d 551, 557
(5th Cir. 2007).
The statute defines “protected activity” as opposition to
any practice rendered unlawful by Title VII, including making a
charge,
testifying,
assisting,
or
participating
investigation, proceeding or hearing under Title VII.
§ 2000e-3(a)(the “opposition clause”).
in
any
42 U.S.C.
Section 2000e-3(a)(the
“participation clause”) prohibits retaliation for the making of
a charge, testifying, assisting, or participating in any manner
in an investigation, proceeding, or hearing under the statute.
Glorioso v. Mississippi Dept. of Corrections, 193 F.3d 517, No.
99-60147, 1999 WL 706173, at *3 (5th Cir. Aug. 20, 1999), citing
Grimes v. Texas Department of Mental Health & Mental Retardation,
102 F.3d 137, 140 (5th Cir. 1996). The complainant employee using
the opposition clause must “‘show that she had a reasonable
belief that the employer was engaged in unlawful employment
practices.’”
Turner v. Baylor Richardson Medical Center, 476
F.3d 337, 348 (5th Cir. 2007), quoting Byers v. Dallas Morning
News, 209 F.3d 419, 428 (5th Cir. 2000).
“[T]o establish the causation prong of a retaliation claim,
the employee should demonstrate that the employer knew about the
employee’s protected activity.”
Manning v. Chevron Chem. Co.,
LLC, 332 F.3d 874, 883 (5th Cir. 2003).
-20-
The anti-retaliation
provision of Title VII does not protect an employee from all
retaliation, but only from retaliation that produces an injury or
harm.
Burlington Northern, 548 U.S. at 67.
An “adverse employment action,” for the second prong, in a
retaliation claim only, is not limited to the Fifth Circuit’s
previous
“ultimate
employment
decision”
discrimination claims under the statute.
standard
for
The Supreme Court has
held that “the standard for retaliation is broader than for
discrimination” in that such actions are not limited to tangible
employment actions.
For purposes of a retaliation claim, an
adverse employment action is one that “a reasonable employee
would have found . . . [to be] materially adverse, which in this
context means it might well have dissuaded a reasonable worker
from
making
or
supporting
a
charge
of
discrimination.”
Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 68 (2006).5
5
See
As the Fifth Circuit explained in Bouvier, 2009 WL 3444765,
at *3 n.2,
The Supreme Court has held that Title VII’s antiretaliation provisions prohibit more conduct than its
anti-discrimination provisions. See Burlington
Northern[, 548 U.S. 53]. Expressly limiting its
holding to retaliation claims, the Supreme Court
abrogated the “ultimate employment [decision] test” and
held that employees must show that a reasonable
employee would have found the challenged action
materially adverse. Id. at 67. However, in the Fifth
Circuit the “ultimate employment test” still applies to
cases alleging discrimination. See McCoy [v. City of
Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007)] (“In
Burlington Northern, the Court expressly limited its
holding to Title VII retaliation claims . . .
.”(emphasis in the original).
-21-
also McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.
2007)(same)(quoting Burlington N., 548 U.S. at 68). “The purpose
of this objective standard is ‘to separate significant from
trivial harms’ and ‘filter out complaints attacking the ordinary
tribulations of the workplace, such as sporadic use of abusive
language, gender-related jokes, and occasional teasing.” Stewart
v. Mississippi Transp. Cm’n, 586 F.3d 321, 331 (5th Cir. 2009),
citing Burlington N., 548 U.S. at 68.
Unlike the mixed motive causation analysis permissible for
other Title VII claims, “Title VII retaliation claims must be
proved according to traditional principles of but-for causation,”
which “requires proof that the unlawful retaliation would not
have occurred in the absence of the alleged wrongful action or
actions of the employer.”
v. Nassar,
U.S.
Univ. v. Texas Southwest Med. Center
, 133 S. Ct. 2517, 2533 (2013).
In
accord, Finnie v. Lee County, Miss., 541 Fed. Appx. 368, 371-72
(5th Cir. Sept. 12, 2013).
The Fifth Circuit has held that temporal proximity
between the protected activity and the alleged adverse employment
action, by itself, is insufficient to create a genuine issue of
material fact for the element of causation.
DeHart v. Baker
Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437, 443 (5th
Cir. 2007)(collecting cases on temporal proximity).
See also
Mayberry v. Vought Aircraft Co., 55 F.3d at 1092 (Close timing
may be a significant factor, but not necessarily determinative of
-22-
the relation between the protected activity and the adverse
action.);
McCoy,
492
F.3d
562
(although
temporal
proximity
between the protected activity and an adverse employment action
may be enough of a “causal connection” to establish a prima facie
case, “once an employer offers a legitimate, nondiscriminatory
reason that explains both the adverse action and the timing, the
plaintiff must offer some evidence from which the jury may infer
that retaliation was the real motive.”).
“‘Petty slights, minor annoyances, and simple lack of good
manners’” are not actionable retaliatory conduct that would
dissuade
a
reasonable
employee
from
making
a
charge
of
discrimination.
Stewart, v. Mississippi Transp. Cm’n, 586 F.3d
at
Burlington
331,
citing
Northern,
548
U.S.
at
68.
“‘The
significance of any particular act of retaliation will often
depend upon the particular circumstances.
Id. at *8,
shows
no
Context matters.’”
citing Burlington N., 548 U.S. at 69.
adverse
impact
as
a
result
and
no
If the context
blame
can
be
attributed to the employee that “might carry a stigma in the
workplace,” an employment action is not an adverse action.
Id.
“‘[A] lateral reassignment to a position with equal pay could
amount to a materially adverse action in some circumstances,’”
which should be judged from the viewpoint of a reasonable person
in the plaintiff’s position, considering all the circumstances:
did the reassignment affect the employee’s job title, grade,
duties hours, salary, or benefits or cause a diminution or
-23-
increase in prestige or standing among her co-workers?
Id.,
citing Aryain, 534 F.3d at 485.
If the plaintiff succeeds in making a prima facie case of
retaliation, a presumption of discrimination arises, and the
burden shifts to the defendant employer, to provide a legitimate,
nonretaliatory reason for the adverse employment action. Hockman
v. Westward Communications LLC, 407 F.3d 317, 330 (5th Cir. 2004),
cited for that proposition in Cooper, 278 Fed. Appx. at 320.
If
the employer succeeds, under the McDonnell Douglas framework the
presumption of discrimination falls away and the plaintiff must
show that the employer’s articulated reason for its action is
merely a pretext for retaliation.
Cooper, 278 Fed. Appx. at 320,
citing McDonnell Douglas, 411 U.S. at 804.
The plaintiff must
rebut each nondiscriminatory or nonretaliatory reason articulated
by the employer.
show
pretext
“by
McCoy, 492 F.3d at 557.
showing
that
the
The plaintiff can
employer’s
explanation is false or ‘unworthy of credence.’”
proffered
Laxton v. Gap,
Inc., 333 F.3d 572, 578 (5th Cir. 2003), quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. at 143.
For example,
Plaintiff could show that she is clearly better qualified than
the person who got the job, promotion, raise, etc.,6 or that the
6
“However, the bar is set high for this kind of evidence
because differences in qualification are generally not probative
evidence of discrimination unless those disparities are ‘of such
a weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question.’”
-24-
employer’s articulated reason is false by showing inconsistency
in the employer’s explanations at different times.
Burrell, 482
F.3d at 412, citing Celestine v. Petroleos de Venezuella SA, 266
F.3d 343, 356-57 (5th Cir. 2001), and Gee v. Principi, 289 F.3d
342, 347-48 (5th Cir. 2002)(“a factfinder may infer the ultimate
fact of retaliation by the falsity of the explanation”).
“[A]
plaintiff’s prima 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,” and thereby preclude summary judgment.
Reeves,
530 U.S. at 135.
To prevail on a hostile work environment claim Johnson must
prove that his “workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ that is ‘sufficiently severe
or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.”
Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993), quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65-67 (1986).
The elements of a
sexually hostile work environment claim are (1) the plaintiff
belongs to a protected group, (2) she was subjected to unwelcome
sexual
harassment,
plaintiff’s
gender,
(3)
(4)
the
harassment
the
harassment
was
based
affected
on
a
the
term,
Celestine, 266 F.3d at 357, quoting Deines v. Texas Dept. of
Protective and Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir.
1999).
-25-
condition, or privilege of employment, and (5) the employer knew
or should have known of the harassment and failed to take prompt
remedial action.
Roberts v. Unitrin Specialty Lines Ins. Co.,
405 Fed. Appx. 874, 880 (5th Cir. 2010), citing Mata v. Univ. of
Tex. Hot. Health Sci,. Ctr., 261 F.3d 512, 523 (5th Cir. 2001).
The court must look at “all the circumstances,” including the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance;
and
whether
it
employee’s work performance.”
unreasonably
interferes
with
Harris, 510 U.S. at 23.
an
To be
actionable, the hostile environment must be both objectively and
subjectively sexually offensive.
teasing,
offhand
comments,
and
Id. at 21-22.
isolated
incidents”
“[Simple
do
not
constitute actionable harassment “unless extremely serious.”
Forager, 524 U.S. at 788.
FJC’s Motion for Summary Judgment (#27)
FJC’s extensive motion for summary judgment, supported by
fifty-two documents as evidence, more than satisfies FJC’s burden
of proof.
Rather than reiterate all of the points the motion
makes, the Court refers the parties to the motion and summarizes
its major contentions.
FJC hired Jones on February 28, 2010 as an Armed Protection
Security Officer under a contract FJC was awarded with Federal
Protective Services for the United States Department of Homeland
Security for South Texas and assigned Jones to work the night
-26-
shift at a post-hurricane-Ike FDMA job site in Texas City.
position
The
was governed by a Collective Bargaining Agreement
(“CBA”) between FJC and United Government Security Officers of
America (“UGSOA”) Local #237.
and Ex. 2 (copy of CBA).
the
FJC
Ex. C, Affid. of Stone, p.2, ¶5,
At the time she was hired, she received
employee handbook, which
inter
alia
contained
its
policies barring discrimination based on any protected factor
under Title VII, including race and sex, and retaliation for
complaining about discrimination.
Ex. C, Affid. of Jennifer
Stone, Human Resources Director for FJC, p.1, ¶3, and Ex. D,
Jones Dep., p. 179.
Jones signed an employment letter when she was hired that
expressly states that her employment was at-will and that “we
cannot guarantee a particular shift or post location.”
Ex. C,
Affid. of Stone, p.2 and Ex. 3; Ex. D., Jones Dep., p. 45 and Ex.
8.
An alarm system soon replaced the night shift workers at the
Texas City site, and Jones’s and all FJC guard positions were
eliminated in April 2010.
To obtain a full-time post, the CBA
required Jones to bid on open posts, in accordance with the CBA
criteria and based upon seniority,
7
7
but she never bid for any
Jones had no contract security under the CBA when she was
hired by FJC. Ex. A. Johnson Affid., p. 2, ¶ 8. She had worked
for Superior Protection Services when it had the Federal
Protective Services Contract, but was fired in 2006 for inter
alia insubordination, leaving her work station, carrying an
unregistered weapon, striking a supervisor, and abandoning her
post, and she worked for several employers before FJC hired her
in 2010. Ex. D, Jones Dep., pp. 21-22, 15, 58, 27-28, 24 and Ex.
5. Jones sued Superior Protection Services (“Superior”) after
-27-
open position during her employment with FJC.
Ex. A, Affid. of
Albert Johnson, Program Manager for FJC, p. 2, ¶¶.
Thus after
her position was eliminated, she was placed on reserve status and
assigned to fill in for open positions.
Johnson, a black man, became Program Manager in July 2010.
Ex. A, Johnson Affid., p. 3, ¶9 and p. 1, ¶ 2.
Jones then
reported to either Lieutenant Michael Mitchell or Lieutenant
Sharita Harvey, a black woman, and to their direct supervisor,
Captain Kelly West.
On July 19, 2010 Jones filed an EEOC charge against FJC
complaining that she was not given her choice of job assignments
and that FJC’s job assignments discriminated against females.
Jones also complained that she was being retaliated against for
filing her earlier charge and lawsuit against Superior, her
previous employer.
Charge.
Ex. D, Jones Dep., p. 55 and Ex. 10, EEOC
After an investigation the EEOC notified her on January
10, 2012 that her complaint lacked merit, that her offer letter
expressly stated that she was not guaranteed her job choice, and
that her work assignments were governed by the CBA.
Ex. D, Jones
Dep., pp. 60-61 and Ex. 13, Jan. 10, 2011 Pre-Determination
Letter.
Before the EEOC finally dismissed the charge, Jones filed an
she was discharged, alleging sexual harassment, sex
discrimination, and retaliation. Johnson was a manager for
Superior in 2006 while Jones was employed there, and in her
lawsuit she alleged that she had complained to Johnson about a
co-worker, but claimed he did nothing about her complaint. Ex.
D, Jones Dep., p. 12, and Ex. 1, Superior Lawsuit, p.2.
-28-
amendment on April 8, 2011 that complained that she was
wrongfully removed from the Federal Contract without explanation
and alleged retaliation for filing her EEOC charge.
Jones
asserted that her suspension was discriminatory based on sex and
in retaliation for her filing of her EEOC charge.
Ex. D, Jones
Dep., pp. 62-63, and Ex. 16, First Amended Charge.
FJC asserts
that Jones was removed from the contract on March 21, 2011 after
Workforce Solutions informed her managers that after she left
work, she had entered its premises with her service weapon
despite posted signs prohibiting firearms on the premises and
despite FJC’s policy 8 regarding company-issued weapons.
Johnson Affid., p. 3, ¶11.
Ex. A,
When Jones was asked to remove the
weapon, she refused, and police were called. Ex. D, Jones Dep.,
pp. 65-67, and Ex. 17; Ex. A, Johnson Affid., p. 3,¶ 11, and Ex.
1.
Johnson refused FJC’s request that she explain her off-duty
conduct.
FJC suspended her for two weeks because of her
violation of its weapons policy and her refusal to cooperate in
the investigation.
Ex. A, Johnson Affid., p.3, ¶¶ 10-11.
On May 30, 2012, Jones again amended her EEOC charge to add
allegations that Johnson and FJC client representative, Federal
Protective
Officer
Thibodeaux,
8
in
another
instance
of
sex
The policy, which was signed by Jones when her weapon was
issued, stated in relevant part, “I understand that any weapon
issued to me by FJC Security Services shall be carried by me only
during the course of my duty with FJC Security Services and that
FJC Security Services prohibits my carrying a FJC-issued weapon
other than during the course of employment (except directly en
route to or returning from work where permitted by law.)” Ex. D,
Jones Dep., pp. 65-67 and Ex. 17; Ex. A, Johnson Affid., o. 3, ¶
11 and Ex. 1.
-29-
discrimination and retaliation, told her she was being
investigated for a complaint against her with Thibodeaux’s
office, but when she asked for more information, neither man
would provide any and she was told that she had to wait until the
Federal investigation was complete
Ex. D, Jones Dep, pp. 68-69
and Ex. 18, Second Amended Charge.
On April 9, 2012 Thibodeaux told Johnson that a government
employee had made a complaint against Jones and asked to talk to
Jones about it.
Ex. A, Johnson Affid., p. 4, ¶ 13.
Johnson was
present during the meeting, where Jones refused to answer any of
Thibodeaux’s questions.
complaint
against
Id.
FJC did not know the nature of the
Jones (a tenant complained that she was
intimidated by Jones during a parking altercation at the LaBranch
federal building) at that time and knew only that she refused to
cooperate.
Ex. A, Johnson Affid., p. 4, ¶¶ 13-14, and Ex. 2.
On
September 19, 2012 the EEOC dismissed Jones’ discharge and both
amendments without finding cause.
Ex. D, Jones Dep., pp. 71-72,
and Ex. 19 (EEOC Dismissal).
Because FJC’s client, the Department of Homeland Security,
prohibited FJC from assigning Jones to multiple positions because
of numerous significant complaints from federal officers about
her performance, including neglect of duties, poor attitude, and
post abandonment,
9
FJC
was
required
to
comply
with the
government’s requests and thus was unable to assign her to a
9
Citing documentary support, FJC provides details of
several such incidents of wrongful conduct by Jones at #27, pp.
11-12.
-30-
number of federal posts, including any IRS offices, the downtown
Social Security Administration and the SSA ODAR offices.
Ex. A,
Johnson Affid., pp.4-5, ¶¶ 14-16; Ex. D, Jones Dep., pp. 74-75,
84.
Furthermore Johnson refused to work at other federal
locations rather than take constructive criticism and improve her
performance.
examples.
Again, citing authority, FJC details a number of
#27, pp. 18-19.
10
She also regularly declined
assignments offered to her, again with FJC’s detailed examples
supported by documentary evidence.
Id. at pp. 20-21.
Jones filed the instant lawsuit on December 28, 2012.
FJC
continued to try to provide Jones with assignments to posts, but
her conduct continued to obstruct its efforts, as shown by FJC,
including failure to appear, walking out, reusing assignments,
refusing to explain her failures, altercations, #27, pp. 22-27.
It finally terminated Jones after she returned from a suspension.
She called in at 3:47 a.m. on June 27, 2013 and left a voice
message for Captain West that she had a family emergency
11
would not report for her 7:00 a.m. job assignment that day.
B, West Affid., p. 1, ¶ 4 and Ex. 1.
and
Ex.
The CBA required Jones to
give notice four hours in advance of any absences, so this notice
was untimely.
Ex. A, Johnson Aff., p. 8, ¶27.
Furthermore she
10
The Court uses the electronic page numbers at the upper
right hand corner of the documents.
11
The “family emergency” was that a window screen on her
residence was bent and she feared someone was trying to break
into her apartment. FJC states that Jones did not call the
police and did not have the screen fixed for several weeks. Ex.
D, Jones Dep. pp., 164-5.
-31-
failed to state that she would not return to work the next day.
Ex. D, Jones Dep., pp. 155-56; Ex. B, West Affid., p. 1, ¶ 4, Ex.
1.
Late on the 28 th she informed her supervisor that she would
return to her regular schedule on July 1 st.
Ex. D, Jones Dep.,
p. 157 and Ex. 70; Ex. A, Johnson Affid., p. 8, ¶27 and Ex. 36.
Johnson told her to report to the FJC offices on that day at 2
p.m. instead to explain why she had not called in or come to
work.
Ex. D, Jones Dep., p. 157 & Ex. 71; Ex. A, Johnson Dep.,
pp. 8-9, ¶ 27 and Ex. 35.
st
Jones failed to appear on July 1 and
did not contact FJC during the whole month of July.
Dep., p. 163; Ex. A, Johnson Affid., p. 9, ¶ 28.
Ex. D, Jones
She filed an
unemployment claim on July 26, 2013, but it was denied after
TWC‘s investigation found that Jones had abandoned her last work
by walking off the job and/or failing to report for work while
work was still available for her, and that her “reason for
quitting was not good cause connected with the work.”
Ex. D,
Jones Dep., pp. 165-67. Ex. C, Stone Affid., p. 3, ¶ 10 and Ex.
4; Ex. D, Jones Dep., pp. 165-67.
On August 2, 2013 FJC sent Jones a letter asking her either
to confirm that she has resigned or to contact FJC to schedule a
meeting to discuss her “no-show/no-call” conduct.
Ex. D, Jones
Dep., p. 168 and Ex. 73; Ex. A, Johnson Affid., p. 9, ¶ 29 and
Ex. 40.
On August 8, 2012 Jones informed Johnson that she had
not quit and would prefer to attend any meeting by telephone.
On
August 13, 2013 Johnson informed Jones that she had to report in
person at FJC and that Human Resources and the Director would
participate via phone conference because they are not located in
-32-
Houston.
th
Instead, on August 13 Jones did not report in person,
but called in.
Ex. A, Johnson Affid., p. 9, ¶¶ 30-31; Ex. D,
Jones Dep., pp. 170-71.
She was again told she had to appear in
person.
Ex. A, Johnson, p. 10, ¶ 31; Ex. D, Jones. Dep., pp.
172-73.
Jones made no effort to reschedule the meeting.
Ex. D,
Jones Dep., p. 174.
On August 15, 2013, FJC sent Jones formal notice that her
employment was terminated because of her failure to report for
work, failure to report her anticipated absence on June 28, 2013,
failure to contact the FJC office at 2:00 p.m. on July 1, 2013,
failure to speak to FJC management any time during July 2013, and
refusal to follow a direct request to appear in person at the FJC
office on August 13, 2012.
Ex. A, Johnson Affid., p. 10 ¶ 32 and
Ex. 41; Ex. D, Jones Dep., pp. 174-75 and Ex. 76; Ex. C, Stone
Affid., p. 4, ¶ 14.
Jones filed a new charge with the EEOC on August 28, 2012,
alleging that she was terminated because of her sex and race and
in retaliation for her lawsuit and the EEOC charge on which this
lawsuit is based.
Ex. D, Jones Dep., p. 72 & Ex. 20.
FJC moves for summary judgment on Plaintiff’s claim of
discriminatory job assignments, treatment, and termination based
on sex and/or race because she cannot establish a
case.
prima facie
She cannot show that she was treated less favorably in
scheduling or discipline because of her sex or race than other
similarly situated employees outside of her protected class
because she cannot show other FJC employees outside of her
protected class engaged in nearly identical conduct to hers (any
-33-
male employee or any employee of a different race with no
seniority assigned to the FEMA Texas City location in April 2010
who was given a permanent assignment after the FEMA job ended).
Nor
can
she
assignments,
identify
walked
any
out
of
one
who
repeatedly
turned down
training, been removed by the
Department of Homeland Security from all IRS buildings, the
downtown Social Security Administration and the SSA ODAR office,
but who was given a more favorable work schedule than she was.
Nor can she identify any one who brought a gun after hours into
another business that prohibited weapons, refused to leave,
required
police
involvement, refused to cooperate with her
managers in the investigation, but who was not suspended for two
weeks.
Though she claims she should have been assigned to an FBI
security post, she cannot show that such a position became
available, that she applied for it, or that she was qualified for
it.
Moreover,
because
FJC
has
established
legitimate non-
discriminatory reasons for its employment decisions, the burden
shifts to Plaintiff to prove that FJC’s reasons were pretextual
or that race or sex was a motivating factor in that decisions.
She has failed to provide any such evidence.
FJC also provides evidence that Plaintiff failed to exhaust
administrative remedies on her race discrimination claim, as her
2010 charge and later amendments upon which this suit was based
alleged only sex discrimination.
and Ex. 18, Second Amended Charge.
Ex. D, Jones Dep., pp. 68-69
Thus the race discrimination
claims must be dismissed for failure to exhaust administrative
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remedies.
Regarding Plaintiff’s retaliation claim, FJC insists that
Jones cannot establish a
prima facie case because she cannot
demonstrate any causal connection between the filing of a lawsuit
against her earlier employer, Superior, in 2007, her filing of
any EEOC charge against FJC, or her filing of this lawsuit and
any adverse employment action taken against her.
FJC hired
Plaintiff in February 2010, years after Superior fired her and
after she sued Superior.
Ex. E, Jones Dep., pp. 21-22.
Thus
there is no temporal proximity to support her retaliation claim.
Nor is there any evidence that FJC’s or Johnson’s actions or
inaction affected Plaintiff’s suing Superior or any of the
charges she filed against FJC in this litigation.
The evidence
shows that FJC continued to attempt to place Jones in jobs for
more than three years after she filed her first EEOC charge
against FJC in July 2010, including full time work for nine
months after she filed this suit in November 2012 until she was
terminated in August 2013 as a “no-call/no-show,” in spite of
ongoing performance problems and refusals by clients to permit
her to work in numerous locations because of her misconduct on
their sites.
43.
Ex. A. Johnson Aff., pp. 4-10, ¶¶ 14-32 and Exs. 2-
Furthermore, FJC has shown that the adverse employment
actions it took against Plaintiff were for legitimate, nonretaliatory reasons.
For example, as discussed supra, her first
position at FEMA in Texas City was eliminated when the site was
shut down; she was required to bid on open positions under the
CBA but did not have contract seniority in April 2010; she did
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not bid on any open positions while in FJC’s employ; frequently
FJC
could
not assign her to positions because the federal
government refused to have her work on its sites because of her
performance problems; and Plaintiff refused to work at other
sites to which FJC tried to assign her.
that
it
FJC further contends
terminated her for legitimate, non-discriminatory
reasons, as documented supra.
Plaintiff has failed to file a response to FJC’s motion and
thus failed to meet her burden of proof to show that the reasons
provided and supported by FJC are pretextual and that but for her
protected conduct, the adverse employment actions would not have
occurred.
Alternatively, FJC asks for partial summary judgment on
those facts that are uncontroverted.
Court’s Decision
The Court finds that FJC has more than met its burden of
proof, while Plaintiff has failed to respond and to raise a
genuine issue of material fact regarding any of her claims
against FJC.
Accordingly, the Court
ORDERS that FJC’s motion for summary judgment (#27) is
GRANTED.
Final judgment will issue by separate order.
SIGNED at Houston, Texas, this
19th
day of
August , 2014.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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