Jones v. Diversicare Afton Oaks, LLC
Filing
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MEMORANDUM OPINION AND ORDER GRANTING 18 MOTION for Summary Judgment ; TERMINATING AS MOOT 20 Opposed MOTION for leave.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TURNER JONES,
Plaintiff,
v.
DIVERCARE AFTON OAKS, L.L.C.,
Defendant.
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CIVIL ACTION NO . H-13-592
M EMORANDUM O PINION & O RDER
Pending before the court is defendant Diversicare Afton Oaks, L.L.C.’s (“Diversicare”)
motion for summary judgment. Dkt. 18. Upon consideration of the motion, response, reply,
summary judgment record, and applicable law, the court finds the motion should be GRANTED.1
I. BACKGROUND
Diversicare hired Turner Jones (“Jones”), a male, on May 19, 2010, as a floor technician in
its Houston-based nursing home, Afton Oaks Nursing & Rehabilitation Center (“Afton Oaks”). Dkt.
18-1 at 3. On October 28, 2012, a female co-worker named Deborah Whitfield (“Whitfield”)
slapped Jones on his rear end twice while he engaged in conversation with another female co-worker,
Eliza Majano (“Majano”). Dkt. 19-2 at 1. Shortly thereafter, Jones wrote a statement about the
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Jones also requests entry of default judgment because Diversicare did not file an answer to his
amended complaint. Dkt. 19. The court does not find that default judgment is appropriate in this case
because Diversicare has actively litigated this lawsuit. See JMC Constr. L.P. v. Modular Space Corp., 2008
WL 4531819, at *2 (N.D. Tex. Oct. 08, 2008) (finding that although “Defendants did not file an answer in
response to the amended complaint, the history of the case shows Defendant has made an appearance in the
case and has shown its intent to defend against all of Plaintiff’s claims”). Specifically, Diversicare answered
Jones’s original complaint, which included state claims that are identical to the federal claims asserted in his
amended complaint, engaged in discovery, deposed Jones, and attended mediation.
event and reported it to Linda Rocha, the manager on duty. Dkt.12 at 2. As a witness to the event,
Majano also submitted a statement. Id.
The next day Jones met with his supervisor, Stephanie Harris (“Harris”), who he claims
treated him rudely and removed him from the schedule. Id.; Dkt. 19-2 at 2. On that same day,
Diversicare launched an investigation into Jones’s sexual harassment claim. Dkt. 18 at 3.
Subsequently, the Director of Nursing, Ray Baker, disciplined Whitfield after finding her actions
were inappropriate. Id. Then, on October 31, 2012, Jones alleges that Harris fired him. Dkt. 12 at
2.
Diversicare denies that any adverse employment action was taken as a result of Jones’s
sexual harassment claim. Dkt. 18 at 5. Diversicare maintains that it reduced Jones’s schedule as part
of a planned reduction in hours for all employees, and Jones was only fired after he failed to show
up for work. Dkt. 18-2 at 2. Before the incident between Jones and Whitfield occurred, Diversicare
was in the process of reducing all employees’ hours at Afton Oaks in order to comply with budget
constraints. Dkt. 18-1 at 3. Specifically, Afton Oaks only needed to staff one full-time and one parttime floor technician. Id. Afton Oaks had three floor technicians, and pursuant to the planned
reduction in hours, it reassigned the floor technicians’ shifts based upon seniority. Jones was the
second most senior of the three floor technicians, so he was assigned the part-time (weekend) shift.
Id. Maria Castenetta, the most senior of all the floor technicians with 19 years of employment,
retained her full-time shift. Id. And Shaheed Muhammad, the floor technician with the least
seniority, was placed on an as-needed basis. Id.
Diversicare contends Harris met with Jones on October 31, 2012, to inform him that his
hours were going to be reduced. Dkt. 18-2 at 2. Diversicare claims that after Jones learned his hours
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were going to be reduced, he stated in the meeting with his supervisor that he was being “picked on,”
although he was informed that all employees at Afton Oaks were having their hours reduced. Dkt.
18-3, Ex. F. Jones then responded that “some hours are better than none.” Id. According to
Diversicare, Jones requested to be off on November 3 and 4; therefore, Harris scheduled Jones’s new
work shift to begin the following weekend on November 9 and 10. Dkt. 18-2 at 2. Jones did not
show up or call in on November 9 and 10. Id. at 3. Subsequently, Diversicare terminated Jones
according to its employee attendance policy. Id.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” FED . R. CIV . P. 56(a);
Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The moving party bears the
initial burden of informing the court of all evidence, if any, demonstrating the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). Only
when the moving party has discharged this initial burden does the burden shift to the non-moving
party to demonstrate that there is a genuine dispute of material fact. Id. at 322. A dispute is
“genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986); Cooper Tire &
Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). A dispute is “material” if its resolution
could effect the outcome of the action. Anderson, 477 U.S. at 248.
III. ANALYSIS
Jones alleges that Diversicare unlawfully discriminated against him because of his sex and
retaliated against him for opposing a discriminatory practice in violation of Title VII of the Civil
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Rights Act of 1964 and the Texas Commission on Human Rights Act, Texas Labor Code §§ 21.001,
et seq. (“TCHRA”). Title VII prohibits an employer from discriminating against its employees on
the basis of “race, color, religion, sex, or national origin,” or retaliating against an employee for
filing a complaint or opposing a discriminatory practice. 42 U.S.C. §§ 2000e-2-3. “Because
TCHRA is intended to correlate with Title VII, the same analysis is applied for each claim.” Allen
v. Radio One of Tex. II, L.L.C., 515 Fed. Appx. 295, 297 (5th Cir. 2013); see also Shackelford v.
Deloitte & Touche, L.L.P., 190 F.3d 398, 404 n.2 (5th Cir. 1999) (“[T]he law governing claims under
the TCHRA and Title VII is identical.”). Therefore, the court’s analysis will pertain to all of
plaintiff’s claims.
A.
Sexual Harassment (Hostile Work Environment)
Jones contends that his female co-worker sexually harassed him at work when she slapped
his rear end twice on one occasion. To prove a hostile work environment claim, Jones must
demonstrate the following five elements: (1) membership in a protected group; (2) unwelcome
sexual harassment; (3) the harassment complained of is based on sex; (4) the harassment complained
of affected a term, condition, or privilege of employment; and (5) the employer knew or should have
known of the harassment and failed to take prompt remedial action. Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 434 (5th Cir. 2005). For harassment to affect a term, condition, or privilege
of employment, the harassing conduct must be sufficiently severe or pervasive to alter the conditions
of employment and create an abusive working environment. Aryain v. Wal-Mart Stores Tex. L.P.,
534 F.3d 473, 479 (5th Cir. 2008).
In determining whether a hostile or abusive work environment exists, a court must assess the
totality of the circumstances, including: (1) the frequency of the conduct; (2) the severity of the
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conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with an employee’s work
performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367 (1993); Alaniz v.
Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009). Simple teasing, rude or offensive comments,
or isolated incidents will not amount to actionable discrimination. Harris, 510 U.S. at 21.
Jones’s hostile work environment claim fails in this case because he cannot establish that the
harassment was severe or pervasive. The harassment Jones complains of involves one incident
where a female colleague slapped him on the rear end twice. The Fifth Circuit considered a similar
incident and determined that a newspaper slap to the rear end amounted to simple teasing, which did
not affect the terms and conditions of employment. Hockman v. Westward Commc’ns, L.L.C, 407
F.3d 317, 328 (5th Cir. 2004). Like Hockman, Whitfield’s conduct towards Jones was an isolated
incident that amounted to simple teasing, and did not unreasonably interfere with his working
conditions. Jones’s proffered evidence does not show a genuine issue of material fact exists with
regard to his sexual harassment claim.
B.
Retaliation
Jones also asserts a claim for retaliation on the basis that three days after he reported the
sexual harassment incident to his supervisor, he suffered an adverse employment action.
Diversicare, however, contends that Jones cannot establish his prima facie case for retaliation. For
plaintiff to establish a prima facie case, he must show that: (1) he engaged in a protected activity;
(2) an adverse employment action occurred; and (3) a causal link existed between the protected
activity and the adverse action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir.
2012). If the plaintiff successfully presents a prima facie case, the burden shifts to the employer to
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provide a legitimate, non-retaliatory reason for the adverse employment action. Id. After the
employer states its reason, the burden shifts back to the employee to demonstrate that the employer’s
reason is actually a pretext for retaliation. LeMaire v. La. Dept. of Transp. and Dev., 480 F.3d 383,
388-89 (5th Cir. 2007). Specifically, the plaintiff must prove that he would not have experienced
an adverse employment action “but-for engaging in protected activity.” Medina v. Ramsey Steel Co.,
238 F.3d 674, 685 (5th Cir. 2001). A plaintiff may avoid summary judgment and show but-for
causation by demonstrating a conflict in substantial evidence on this ultimate issue. Hernandez, 670
F.3d at 660. “Evidence is ‘substantial’ if it is of such quality and weight that [a] reasonable and
fair-minded [jury] in the exercise of impartial judgment might reach different conclusions.” Id.
(quoting Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)).
Diversicare argues that Jones cannot demonstrate a causal link between the adverse
employment action and the protected activity. Diversicare contends that although Jones’s hours were
reduced around the time Jones reported Whitfield’s harassment, there is no causal link between the
two events. The prima facie standard is much less stringent than the but-for standard to show pretext
and may be satisfied, in certain cases, based on temporal proximity between the protected activity
and the adverse employment action. Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996);
see also Ware v. CLECO Power L.L.C., 90 Fed. Appx 705, 708 (5th Cir. 2004) (finding that fifteen
days between the time plaintiff filed his complaint and was terminated is sufficient “close timing”
to establish temporal proximity). According to Jones, he experienced an adverse employment action
at Afton Oaks within days after he reported an incident of sexual harassment. For purposes of
Jones’s prima facie case, the court finds that the close timing between Jones filing his complaint and
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Diversicare reducing Jones’s hours and then ultimately terminating his employment is sufficient to
create a casual link. Therefore, Jones has established his prima facie case for retaliation.
However, Diversicare also offers a legitimate, non-retaliatory reason for Jones’s reduced
schedule and termination. Diversicare contends it planned to reduce hours facility-wide before Jones
reported the harassment. It presented evidence dating back to October 19, 2012 (nine days before
Jones reported the harassment incident) that corroborates Diversicare’s claim of a facility-wide
reduction in hours for its staff. Dkt 18-3, Ex. L. The hours were to be reduced based on seniority.
Diversicare shows that for budgetary reasons only one full-time and one part-time (weekend) shift
were available for the floor technicians. Jones, the second most senior floor technician, was
reassigned to the part-time shift, while Maria Castenetta, an employee of 19 years, retained her fulltime shift. Diversicare also maintains that Jones did not show up or call in for work the weekend
of November 9 and 10. And afterwards, Diversicare terminated Jones for no call/ no show according
to the company’s attendance policy. The reasons proffered by Diversicare establish a legitimate,
non-retalitory reason for Jones’s reduced schedule and termination.
The burden now shifts to Jones to create a genuine issue of material fact by offering
substantial evidence that Diversicare’s reason for the adverse employment action was actually a
pretext for retaliation. Jones may avoid summary judgment by demonstrating that he would not have
experienced an adverse employment action but for him engaging in protected activity. Medina, 238
F.3d at 685. Jones cites again to the temporal proximity between the adverse employment action and
the protected activity, but temporal proximity alone is not sufficient proof to show pretext.
Hernandez, 670 F.3d at 660; see also Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808
(5th Cir. 2007) (“[T]emporal proximity alone, when very close, can in some instances establish a
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prima facie case of retaliation. But we affirmatively reject the notion that temporal proximity
standing alone can be sufficient proof of but for causation.”). Additionally, in his affidavit, Jones
alleges that after he reported the harassment to his supervisor, she treated him like he had “done
something wrong” and accused him of “being a problem employee.” Dkt. 19 at 2. Jones does not
offer any specific details of this alleged mistreatment. McCreless v. Moore Bus. Forms Inc., 1997
WL 157005, at *5 (5th Cir. Mar 26, 1997) (“[C]onclusory allegations . . . and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.”). Further, Jones cannot rely on his
“subjective belief” that Diversicare’s actions were retaliatory to prove pretext. Aryain, 534 F.3d at
487. Without additional evidence, Jones’s claims do not constitute sufficient proof that his adverse
employment action was retaliatory. Thus, Jones has failed to provide summary judgment evidence
establishing that Diversicare unlawfully retaliated against him.
IV. CONCLUSION
Diversicare has established, as a matter of law, that no genuine issue of material fact exists
as to plaintiff’s sexual harassment or retaliation claims. Therefore, Diversicare’s motion for
summary judgment (Dkt. 18) is GRANTED. Plaintiff’s claims against Diversicare are DISMISSED
WITH PREJUDICE. The court will enter a separate final judgment in accordance with this
memorandum opinion and order.
It is so ORDERED.
Signed at Houston, Texas on June 17, 2014.
___________________________________
Gray H. Miller
United States District Judge
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