Butler v. Texas Health And Human Services

Filing 52

MEMORANDUM AND ORDER Granting #42 MOTION for Summary Judgment (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION FLORENCE K. BUTLER, § § Plaintiff, § § v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Defendant. § § § § § § CIVIL ACTION NO. H-13-1030 MEMORANDUM & ORDER Pending is Defendant Texas Health and Human Services Commission's Motion for Summary Judgment (Document No. 42). After considering the motion, responses, reply, and applicable law, the Court concludes as follows. I. In February 2008, pro Background se Plaintiff Florence K. Butler ("Plaintiff"), a black Methodist woman, began working for Defendant Texas Health and Human Services Commission ("Defendant") as a Texas Works Advisor ("TWA"), enrolling clients in the Medicaid program. 1 Beginning in September 2009, Abraham, a black woman. 2 Plaintiff was supervised by Bonnie Abraham avers that she quickly noticed 1 Document No. 42, ex. A at Appx. 2, Appx. 7. 2 Id., ex. B ~~ 2, 4. problems with Plaintiff's performance. 3 On October 14, 2009, Abraham met with Plaintiff to discuss her performance problems. 4 Abraham explained to Plaintiff that Plaintiff was only completing 15 to 17 cases per day and that she had accumulated a large backlog of unprocessed cases. s Abraham informed Plaintiff that based on her tenure, she should be processing more than 25 to 30 cases per day.6 Abraham agreed to redistribute 50 of Plaintiff's cases to other employees, but told Plaintiff that she would be responsible for keeping up with her workload in the future. 7 Abraham met with Plaintiff to discuss her performance for a second time on October 27,2009. 8 Abraham told Plaintiff that she would once again redistribute some of Plaintiff's cases to help clear her backlog, but informed Plaintiff that continued poor performance would be grounds for corrective action. 9 On December 29, 2009, Abraham met with Plaintiff for a third time and told her that she was still not 3 Id., ex. B ~ 4. 4 Id., ex. B ~ 4; id., ex. B-1 (October 14, 2009 "Conference Notes for Employee File" memo prepared by Bonnie Abraham) . S Id. , ex. B ~ 4' id. , ex. B-l. , 6 Id. , ex. B ~ 4 ; id. , ex. B-l. 7 Id. , ex. B ~ 4 ; id. , ex. B-l. 8 Id. , ex. B ~ 5 . Id. , ex. B ~ 5. See also id. , ex. B-2 (October 27, 2009 "Coaching for Employee File" memo prepared by Bonnie Abraham) . 9 2 completing the expected 25 to 30 cases per day.10 Abraham informed Plaintiff that Abraham would be recommending corrective action. l l On March 171 2010 1 Abraham issued a written notice placing Plaintiff on First-Level Corrective Action based on her failure to meet performance expectations. 12 At this point I Plaintiff was expected to complete 40 cases per daYI but was averaging only 15-17 cases 13 l and several hundred of her cases had been redistributed to other staff since October 2009. 14 The notice advised Plaintiff that she would remain on First Level Corrective Action for three months and l if she was unable to complete her assigned cases for three consecutive months without redistribution action is possible 10 II l "more serious corrective up to and including dismissal."15 l Id. 1 ex. B ~ 6; id. Id. I ex. B- 3. ex. B-3. 1 12 Id. ex. B ~ 7; id. ex. B-4. First-Level Reminders are the first level of the formal corrective action process and are issued to "correct [) a minor offense usually when the employee does not improve performance after coaching or counseling." Id. ex. B-5 at Appx. 35 Appx. 40. 1 1 I 1 1 13 Id. 1 ex. B ~ 8; id. 1 ex. B-4 at Appx. 32. 14 See id. ex. B-4 at Appx. 33 ("One hundred (100) of your assigned cases were redistributed to other staff to complete in October 2009 1 forty (40) cases were redistributed in November 2009 and another 281 of your assigned cases were redistributed in December 2009. In January 2010 280 cases were redistributed and in February 2010 105 cases were redistributed in to other workers for completion.") . I 1 1 15 Id. I ex. B-4 at Appx. 33. 3 On April 30, 2010, Abraham once again met with Plaintiff regarding her poor performance. 16 her performance had not Abraham informed Plaintiff that improved, and that Abraham recommending the next level of corrective action. I? 2010, would be On June 8, Abraham issued written notice placing Plaintiff on Second- Level Corrective Action. ls The written notice informed Plaintiff that she was required to complete 30 or more cases per day, but had averaged fewer than 19 cases per day in March and April 2010,19 and that several hundred more of her cases had been redistributed to other staff in March, April, and May of 2010. 20 Plaintiff would remain on the Second Level Corrective Action for six months, and could be subject to "more serious corrective action . . . up to and including dismissal" if she did not complete her assigned cases without redistribution during that time. 21 16 Id., ex. B ~ 9. 17 Id., ex. B ~ 9. IS Id., ex. B ~ 10; id., ex. B-7. Second-Level Reminders are "to correct a serious performance problem." Id., ex. B-5 at Appx. 41. 19 Id., ex. B-7 at Appx. 56 (Plaintiff averaged 17.73 cases per day in March 2010 and 18.27 cases per day in April 2010). 20 Id., ex. B-7 at Appx. 56 ("Two hundred fifty nine (259) of your assigned cases were redistributed to other staff to complete in March 2010, one hundred fifty eight (192) [sic] cases were redistributed in April 2010 and currently, one hundred ninety four (194) cases were redistributed in May 2010.") . 21 Id., ex. B-7 at Appx. 56. 4 September On Plaintiff 2010, 9, filed Charge a of Discrimination with the United States Equal Employment Opportunity Commission hostile ("EEOC" ), work complaining of environment. 22 On "ongoing harassment" September 14, 2010, and a Plaintiff requested a transfer to an alternate location closer to her home. 23 Plaintiff cited the "hostile work environment, personality conflicts amongst co-workers and supervisory biases" at her present location, along with her long commute, transfer. 24 Defendant's request was denied because evidence is she was as reasons she wanted to that Plaintiff's transfer on Second Level Corrective Action at the time of her transfer request. 25 On September 17, 2010, Abraham placed Plaintiff on Third-Level Corrective Action due to "inappropriate outbursts her at "constant behavioral the office. ,,26 issues" and The written notice provided to Plaintiff detailed several instances in June and July of 2010 in which Plaintiff yelled at Abraham and refused to follow 22 Document No. 44-1 at 27 of 30. 23 Document No. 47, ex. Q. 24 Document No. 42, ex. B-10. 25 Id. , ex. B ~ 13; id. , ex. D ~ 4. 26 Id., ex. B ~ 11. A Third-Level Corrective Action is "the final and most serious level of the formal corrective action process" and "provides the employee with one last opportunity to correct the performance problem." Id., ex. B-5 at Appx. 44. 5 her instructions. 27 The notice stated that the Third-Level Corrective Action would last for twelve calendar months, Plaintiff repeated the listed violations, and if or remained unable to complete her assigned cases without redistribution, "more serious disciplinary action is possible, up to and including dismissal."28 On September 16, 2011, Supervisor Charlotte Smith, a black woman, sent to Plaintiff a memorandum notifying her that her ThirdLevel Corrective action was inactivated, and "commended" her for her "efforts in correcting the problem."29 On October 17, 2011, Plaintiff once again requested to transfer to a location closer to her horne, citing environment" mother. 30 "numerous stress factors and a hostile work and a desire to be closer to her daughter and ill Plaintiff was placed on the regional transfer list, and remained there until the time of her termination. 31 From October 2011 until her termination in May 2012, Plaintiff worked in the Children's Medicaid Center under the supervision of Smi th. 32 In addition to Plaintiff, Smith supervised twelve to fifteen other TWAs, all of whom were required to process 30 cases 27 Id. , ex. B-8. 28 Id. , ex. B-8 at Appx. 6l. 29 Document No. 47, ex. X· Document No. 42, ex. C , ~ 2. 30 Document No. 42, ex. C-6. 31 Id. , ex. D ~ 5; id. , ex. D-l. 32 Id. , ex. C ~ 2. 6 per day.33 the unit, Smith avers that Plaintiff was the lowest producer in routinely processing fewer than 15 cases per day, that Smith had to reassign her cases to other employees. 34 and Smith held several coaching sessions with Plaintiff to help her improve her performance, but Plaintiff continued to fail to meet performance standards. 35 Smith also asserts that Plaintiff "displayed disruptive, disrespectful, and insubordinate behavior in the office in violation of agency rules," and that her behavior was the worst in the unit. 36 On May 4, 2012, Smith issued Plaintiff a Notice of Possible Disciplinary Action. 37 The Notice stated that Plaintiff had "displayed very disrespectful and insubordinate behavior" toward Smith, failed to follow instructions, and processed fewer than 15 cases per day.38 subject to The Notice informed Plaintiff that she could be "suspension, demotion, or discharge for cause," and invited her to provide any information she believed was "a defense 33 Id. , ex. C 34 Id. , ex. C ~ 4. 35 Id. , ex. C ~ 5. 36 Id. , ex. C ~ 6. ~~ 3-4. 37 Id., ex. C ~ 9; id., ex. C-4. Smith explains that \\ [b] ecause Plaintiff had already been placed on a Third-Level Reminder, I could not place her on another Third-Level Reminder." Id., ex. C ~ 9. 38 Id., ex. C-4. 7 or which might mitigate the circumstances. 1139 on emergency leave at this time. 40 Plaintiff was placed On May 15, 2012, Plaintiff was terminated. 41 Plaintiff alleges that the denial of her transfer requests and her termination were motivated by racial and religious discrimination, in violation of Title VII.42 are Plaintiff's claims for disparate Remaining for adjudication treatment, discriminatory discharge, and her claim that she was retaliated against for filing her 2010 Charge wi th the EEOC. 43 Defendant moves for summary judgment. 44 39 Id. , ex. C-4 at Appx. 76, Appx. 78. 40 Id. , ex. C-4 at Appx. 78. 41 Id. , ex. C-7. 42 Document No. 1 (Compl.) . 43 See id. By Order signed October 21, 2013, Plaintiff's Age Discrimination in Employment Act claim was dismissed as barred by the Eleventh Amendment. Document No. 19 at 5-6. That Order should have recited the dismissal was without prejudice for lack of jurisdiction, and is hereby corrected sua sponte. FED. R. Crv. P. 60(a). In the same October 21, 2013 Order, the Court also dismissed with prejudice Plaintiff's claim that she was retaliated against for filing a workers' compensation claim. The Court conditionally dismissed with prejudice Plaintiff's hostile work environment claim, which dismissal was effective when Plaintiff failed to amend her Complaint within the 21 days allowed to replead. 44 Document No. 42. 8 II. Rule 56 (a) Legal Standard provides that "[t] he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a FED. matter of law." this burden, the R. Crv. 56 P. burden shifts to Once the movant carries (a) the summary judgment should not be granted. nonmovant to show that Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Id. "[T]he nonmoving party must set forth specific facts showing the existence of a 'genuine' issue concerning every essential component of its case." Id. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: particular parts of materials in the record . (A) citing to ., or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. Cry. P. 56 (c) (1). "The court need consider only the cited materials, consider other materials in the record." but it may Id. 56(c) (3) In considering a motion for summary judgment, the district court must view the evidence "through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 106 S. Ct. 9 -----------,--- . .- .. _----- 2505, 2513 (1986). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Corp., 106 S. Matsushita Elec. Ct. 1348, 1356 Indus. Co. v. Zenith Radio "If the record, viewed in (1986). this light, could not lead a rational trier of fact to find" for the nonmovant, then summary judgment is proper. Kelley v. Price- Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993). On the other hand, if "the factfinder could reasonably find in [the nonmovant' s] favor, then summary judgment standards of Rule 56 are met, is improper." Even if the a court has discretion to deny a motion for summary judgment if it believes that "the better course would be to proceed to a full trial." Anderson, 106 S. Ct. at 2513. III. A. Analysis Title VII Standard Title VII proscribes an employer from hiring, discharging, or otherwise discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment" because of that individual's race. Title VII inquiry is 42 U.S.C. "whether the discriminated against the plaintiff." Servs. , 373 discrimination F.3d can 647, be 651 (5th established 10 § 2000e-2(a) (1). defendant The intentionally Roberson v. Alltel Info. Cir. 2004) . through either Intentional direct or circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F. 3d 212, 219 (5th Cir. 2001). If no direct evidence is presented, the claims must be analyzed using the framework set forth in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). Under this framework, a plaintiff must first create presumption of intentional discrimination by establishing, preponderance the of discrimination. evidence, a prima See Wallace, 271 F.3d at 219. establishes a prima facie case, facie case a by a of Once the plaintiff the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. facie case Id. is If the employer sustains its burden, the prima dissolved, and plaintiff to establish either: the (1) burden shifts back to the that the employer's proffered reason is not true, but is instead a pretext for discrimination (pretext alternative) i not the only reason or (2) the employer's reason, while true, is for its conduct, and another "motivating factor" is the plaintiff's protected characteristic (mixed-motive alternative). Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th Cir. 2007). B. Discriminatory discharge and disparate treatment claims Plaintiff has produced no direct evidence of discrimination, so the Court applies the McDonnell Douglas framework. 11 See Wallace, 271 F.3d at 219. Plaintiff must first establish a prima facie case of discrimination by demonstrating that she: "(1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or, in the case of disparate that treatment treated more Circuit other favorably." defines similarly Bryan, "similary 375 situated employees F. 3d at situated" very were The Fifth to 360. mean narrowly "employees who are treated more favorably under nearly identical circumstances." Houston, Beltran v. Univ. 837 F. Supp. 2d 635, 642 (internal quotations omitted). a stringent one, responsibilities, and of Tex. Health Sci. (S.D. Tex. 2011) Ctr. (Miller, at J.) The "nearly identical" standard is excludes with employees different supervisors, "different different capabilities, different work rule violations or different disciplinary records." rd. Plaintiff has not demonstrated a prima facie case of discriminatory discharge because she has not presented evidence that she was replaced by someone outside her protected class. Plaintiff has also not demonstrated a prima facie case of disparate treatment, as she has not comparator outside her protected favorably. coworkers Plaintiff of a identified alleges different race class that to any that similarly was Defendant transfer out," 12 ,---, _._..----'-'------_.._----,,--------- situated treated more "allowed but other does not present evidence that those coworkers were similarly situated to Plaintiff. 45 Furthermore, from September 2010 the summary judgment evidence is that to June 2012, fourteen Children's Medicaid staff members in addition to Plaintiff requested transfers, twelve were approved. 46 Hispanic, one was and Of those twelve, eight were black, two were Asian, and one was white. 47 Accordingly, Document No. 42, ex. A at Appx. 12-13 ("Q. . What evidence do you have that [Defendant] discriminated against you on the basis of your race? A. They -- they allowed other coworkers of a different race to transfer out . . . . [T]hey allowed different white employees to get transferred out, younger employees to get transferred out, but didn't allow me to get transferred out. They allowed Jennifer Rainey, which is a white female, to be transferred out. 1/) • Plaintiff exhibits her Rebuttal Statement provided to the EEOC, which lists nineteen individuals that were allowed to transfer, and includes the races, ages, and genders of some of these employees. Document No. 44-2 at 1 of 30. However, this list provides no information from which the Court can determine if these individuals were similarly situated to Plaintiff. 45 See In her deposition, Plaintiff complained that Carol Blanchard, a white female, was demoted to a clerk position instead of being terminated. Document No. 42, ex. A at Appx. 17. However, Plaintiff presents no evidence about Ms. Blanchard's disciplinary record or her rule violations, so as to allow the Court to determine if she was similarly situated to Plaintiff. Furthermore, Plaintiff was offered a demotion in February 2011 to a Clerk position, but refused to accept it. Id., ex. C ~ 5. As to her claim of religious discrimination, Plaintiff admits that the only evidence she has that she was treated differently than non-Christians is that Defendant denied her requests to attend functions on Saturdays and Sundays. See id., ex. A at Appx. 17. She does not provide evidence that any similarly situated nonMethodists or non-Christians were allowed to take such leave. 46 Document No. 42, ex. D 47 Id., ex. D ~ ~ 3 3. 13 Plaintiff has not presented summary judgment evidence sufficient to raise a genuine issue of material fact as to the fourth element of her prima facie case. Even if Plaintiff had demonstrated a prima facie case, her Title VII claims would fail because Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff has not shown to be pretextual. evidence is that Plaintiff's first its actions that The summary judgment transfer request was denied because she was on Second-Level Corrective Action,48 and that her second transfer termination. 49 that it request still pending at the time of her As to Plaintiff's termination, Defendant's proof is terminated performance was and her due to repeated insubordination. instances Defendant has of under- satisfied its burden of articulating a legitimate, non-discriminatory reason for Plaintiff's termination. was deficient. 50 Plaintiff disputes that her performance However, "[s] imply disputing the underlying facts of an employer's decision is not sufficient to create an issue of 48 Id., ex. B ~ 13 i 49 Id., ex. D ~ 5. id., ex. D ~ 4. See, e.g., Document No. 44 at 7 of 30 (May 6, 2012 letter from Plaintiff stating "I have always completed 15 or more cases.") i id. at 21 of 30 (March 25, 2010 email from Plaintiff about her First-Level Corrective Action: "In the memorandum letter it says that I am processing 15 to 17 cases per day. From my WHIP records it shows that I am processing 20 to 25 cases per day.") i Document No. 44-1 at 18 of 30 to 25 of 30 (Disposition Timeliness Reports) . 50 14 pretext." Beltran, Plaintiff's claims 837 for F. Supp. 2d at discriminatory Accordingly, 644. discharge and disparate treatment are dismissed. C. Retaliation claim To state a prima facie case of retaliation, demonstrate (1) she suffered an adverse engaged in a employment Plaintiff must protected activity, action, and (3) a (2) causal she link existed between the protected activity and the adverse action. Richards v. JRK Prop. Holdings, 405 F. App'x. 829, 831 2010) . The filing of charges with 'protected activity' under Title VII. the EEOC (5th Cir. qualifies See 42 U.S.C. § as a 2000e-3(a) (It is unlawful to discriminate against an employee because she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII). There is no dispute that Plaintiff filed an EEOC Charge in 2010, or that she was discharged in May 2012. However, Plaintiff presents no evidence to raise a genuine issue of material fact that a causal link existed between her protected activity and her termination. Furthermore, given that more than twenty months passed between the time she filed her Charge and her termination, Plaintiff cannot rely on temporal proximity alone to establish the causal link. Clark Cnty. Sch. Dist. v. Breeden, 121 S.Ct. 1508, 1511 See (2001) (action taken twenty months after filing of EEOC charge "suggests, 15 ---------------.---------------- by itself I no causality at all. II ) ("The cases that accept mere temporal proximity between an employerls knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very omitted) (citing Richmond v. close. ONEOK I 120 F. 3d 1997) (three-month period insufficient) F.2d 1168, 1174-75 (7th (internal II ) i 209 (10th Cir. 205 1 Hughes v. Derwinski l 967 period (four-month 1992) Cir. quotations insufficient» To the extent that Plaintiff alleges that the denial of her transfer request in September 2010 was in retaliation for filing her 2010 EEOC Charge I such claim fails. Plaintiff presents no evidence that her transfer request was not purely lateral / 51 and th~s, has not demonstrated that its denial was a materially adverse employment action. App'x 866, lateral 868 See Griffin v. (5th Cir. transfer did not 2009) Citgo Petroleum Corp. 344 F. I ("[A]ny purported denial affect Griffin's employment of a status, benefits, or responsibilities, meaning that it did not constitute a materially retaliation.") adverse i employment action for a claim of Sabzevari v. Reliable Life Ins. Co., 264 F. App'x See Document No. 42, ex. B-10 (August 28 2010 transfer request from Plaintiff seeking to be "relocated to an alternate location closer to my residence. II) . Plaintiff's second transfer request was still pending at the time of her termination, but it too appears to be a purely lateral transfer. See id., ex. C- 6 (October 17, 2011 form requesting "LATERAL TRANSFERII). 51 1 16 392, 396 (5th Cir. 2008) adverse employment (denial of transfer was not a materially action, and could not support plaintiff's retaliation claim, where plaintiff presented no evidence that the transfer was anything but lateral "in terms of pay, promotional opportunities, working conditions, and other objective factors.") . Even if Plaintiff could demonstrate a prima facie case of retaliation, she has not raised a genuine issue of material fact that Defendant's legitimate, non-discriminatory reasons for denying her first transfer or for terminating her were pretextual. Accordingly, Plaintiff's retaliation claim is dismissed. IV. Order For the foregoing reasons, it is ORDERED that Defendant Commission's Motion for Texas Health Summary Judgment and Human (Document No. Services 42) is GRANTED, and Plaintiff Florence Butler's claims are DISMISSED WITH PREJUDICE. The Clerk will enter this Order, providing a correct copy to all parties of record. ~ SIGNED at Houston, Texas, on this ~ ~y of May, 2014. .... ING WERLEIN, JR. STATES DISTRICT JUDGE 17

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