Davis v. Woodlands Religious Community, Inc.
Filing
33
MEMORANDUM AND ORDER Granting 29 MOTION for Summary Judgment (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NOLAN DAVIS,
Plaintiff,
v.
WOODLANDS RELIGIOUS COMMUNITY,
INC. d/b/a INTERFAITH OF THE
WOODLANDS,
Defendant.
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-13-1761
MEMORANDUM AND ORDER
Pending is Defendant Woodlands Religious Community, Inc. d/b/a
Interfaith of the Woodlands' Motion for Summary Judgment (Document
No.
29).
After carefully considering the motion,
response,
and
applicable law, the Court concludes as follows.
I.
Plaintiff Nolan Davis
African-American man,
was
Background1
("Plaintiff"),
hired as
who pleads he
an employment
is
an
counselor by
Defendant Woodlands Religious Community, Inc. d/b/a Interfaith of
1 Virtually all of the facts in the case come from Defendant,
and are uncontroverted.
Plaintiff's evidence consists of only a
two-page affidavit and three pages of staff productivity records,
upon which Plaintiff relies to argue that Defendant's reason for
terminating him was pretextual. Plaintiff in his Response presents
no evidence of discrimination or retaliation as a predicate for
arguing that the declared nondiscriminatory basis for his
termination was pretextual.
the Woodlands ("Defendant") on April 13, 2009, when Plaintiff was
55
years
old. 2
Defendant
is
a
non-profit
heavily on grants and donations. 3
contract
year
was
reduced
by
agency
that
relies
Defendant's funding for the 2012
approximately
fourteen
percent,
causing Defendant to close its Spring Branch Career Office and to
restructure
reduction
and
in
reduce
its
workforce,
staff
Defendant
in
2011.4
terminated
As
part
21
of
its
employees,
including Plaintiff on September 1, 2011, at which time Plaintiff
was
58 years old. 5
Of
the
employees
21
laid off,
eight were
Hispanic, seven were Caucasian, and six were African-American. 6
Defendant maintains that the employees to be laid off were
selected based on their cumulative scores on performance reviews,
and that Plaintiff's mid-year review was below par.7
Plaintiff
testifies that Defendant's declared reason for choosing him for
termination
based
on
his
performance
reviews
was
pretextual,
pointing out that Defendant hired a new employment counselor two
weeks after Plaintiff's termination, and conclusorily stating that
2
Document No. 29, ex. 2
3
Id., ex. 2
~
~
3; id., ex. 3.
6.
4 Id. i id. , ex. 6 .
5
Id. , ex. 2 ~ 5 i id. , ex. 5 .
6
Id. , ex. 2 ~~ 7-8.
7 Id. , ex. 2
~~ 7, 12.
2
the performance review "was orchestrated to ensure I would score
poorly. ,,8
After
Employment
receiving
a
Opportunity
right
to
sue
Commission / 9
letter
Plaintiff
from
the
filed
Equal
this
suit
alleging race discrimination under Title VIII age discrimination
under the Age Discrimination in Employment Act
retaliation. 10
(the "ADEA")
Defendant moves for summary judgment
l
I
and
arguing that
Plaintiff has no evidence that he was discriminated against because
of
his
age
or
race
or
l
that
he
was
retaliated
against
for
exercising his protected rights. 11
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
mat ter of law."
this
burden
I
the
FED.
R. CIV. P.
56(a)
to
burden shifts
Once the movant carries
nonmovant
the
to
show that
Document No. 31-1 ~~ 3 4. Plaintiff further testifies that
only a single employment counselor was able to meet the purported
benchmark of 169-180 direct job placements annually
that
Plaintiff s annual total of 72 direct placements exceeded the
performance of all but three employment counselors and that four
employment counselors had fewer than 56 placements and were not
fired.
Id. ~~ 16-19.
8
1
I
I
I
9
Document NO.6.
10
Document No. 5 (Pl.
11
Document No. 29.
I
S
Am. Compl.).
3
summary judgment should not be granted.
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'
case."
issue concerning every essential component of its
"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."
2505, 2513 (1986).
Anderson v. Liberty Lobby, Inc., 106 S. Ct.
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. Ct.
Matsushita Elec.
1348, 1356
(1986)
Indus.
Co.
v.
Zenith Radio
"If the record, viewed in
this light, could not lead a rational trier of fact to find" for
the nonmovant, then summary judgment is proper.
4
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 is improper."
Id.
Even if the stan-
dards of Rule 56 are met, 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."
III.
A.
Anderson, 106 S. Ct. at 2513.
Analysis
Race Discrimination
Plaintiff alleges that "Defendant intentionally discriminated
against Plaintiff because of his race in violation of Title VII by
promoting two non-African-American males of lesser qualifications
and experience than Plaintiff to the position of Career Office
Supervisor," that "Defendant subsequently promoted a non-AfricanAmerican female to the position of Staffing Specialist," and that
"al though
there
were
recent
hires,
Plaintiff
was
told he
was
terminated due to cutbacks. ,,12
Title
discharging,
VII
proscribes
an
employer
from
refusing
to
hire,
or otherwise discriminating against any individual
"wi th respect to his compensation, terms, conditions, or privileges
of
§
employment"
2000e-2 (a) (1)
12
because
of
that
individual's
race.
42
U.S.C.
The Title VII inquiry is "whether the defendant
Document No. 5
~
8.
5
intentionally discriminated against the plaintiff."
Alltel
Info.
Servs. ,
373
F.3d
647,
651
(5th
Roberson v.
Cir.
2004) .
Intentional discrimination can be established through either direct
or circumstantial evidence.
F.3d 212, 219
Wallace v. Methodist HOsp. Sys., 271
(5th Cir. 2001).
Plaintiff disavowed knowledge of
any direct evidence of discrimination,13 and hence his claim can be
analyzed only by using the framework set forth in McDonnell Douglas
Corp. v. Green, 93 S. Ct. 1817 (1973).
Under this
framework,
Wallace, 271 F.3d at 219.
a plaintiff must first establish a prima
facie case of discrimination.
Id.
Once the plaintiff establishes a prima facie case, the burden
then
shifts
to
the
employer
to
articulate
non-discriminatory reason for its actions.
sustains its burden,
Id.
a
legitimate,
If the employer
the prima facie case is dissolved,
burden shifts back to the plaintiff to establish either:
the employer's proffered reason is not
pretext
for
discrimination
employer's reason,
(pretext
while true,
true,
but
alternative);
is
or
and the
(1) that
instead a
(2)
the
is not the only reason for its
13 Plaintiff testified in his deposition that there were no
comments made about his ethnicity or race, and that he did not know
of any jokes made in his workplace about African-Americans, any
emails that were derogatory toward African-Americans, or any
comments
by
supervisors
that
made
him
think
they
were
discriminating against African-Americans. Document No. 29, ex. 1
at 38:18-39:5.
See also id., ex. 1 at 85:23-86:1 (Q.
[Y]ou
don't have any personal knowledge specifically linking anyone of
[Defendant's management staff] to discriminating against you; is
that right? A. Yes, that's true.").
6
conduct,
and
another
"motivating
factor"
is
the
protected characteristic (mixed-motive alternative).
plaintiff's
Id.; Burrell
v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12
(5th Cir. 2007).
Where, as here, the Plaintiff alleges pretext, he
"must put forward evidence rebutting each of the nondiscriminatory
reasons the employer articulates."
Wallace, 271 F.3d at 220.
In order to establish a prima facie case, Plaintiff must show
that he:
(1)
is a member of a protected class;
for his position;
(2) was qualified
(3) was subject to an adverse employment action;
and (4) was replaced by someone outside the protected class, or, in
the
case
individuals
favorably.
of
disparate
outside
her
treatment,
that
protected
class
similarly
were
situated
treated
more
Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245
F.3d 507, 512-13 (5th Cir. 2001).
Plaintiff in his Response produces no evidence of any less
qualified individual outside his race being promoted in his stead.
With no evidence of any comparator who received a promotion to a
job for which Plaintiff applied and was qualified,
Plaintiff's
failure to promote claim does not survive summary judgment.
Plaintiff's Amended Complaint does not expressly allege that
his termination was based on race discrimination.
claim
arguably
may
be
inferred
from
Plaintiff's race discrimination claim:
were recent hires,
the
At most, such a
final
sentence
of
"Finally, although there
Plaintiff was told he was terminated due to
7
cutbacks.
Defendants
/114
African-American,
do
not
dispute
that
Plaintiff,
is a member of a protected class,
as
an
that he was
qualified for his position, or that his termination was an adverse
employment
argument
action.
However,
or evidence
Plaintiff
showing that
has
not
presented any
similarly-situated employees
outside his class were not laid off, and hence has not established
a prima facie case of race discrimination. 15
Plaintiff
exceeded,
counselors
in
testifies
some
that
cases
who were
not
"[Plaintiff's]
greatly,
fired,
/I
those
and
direct
of
placements
other
employment
identifies
Contina Tyler,
Amparo Rosa, Ester Rodriguez, Marsha Hewitt, and Zelinka Deal as
such counselors. 16
However, Plaintiff neither argues nor produces
evidence that these employees are not African-American,17 or that
they were similarly situated to Plaintiff.
forest
Bank,
665
F.3d
632,
637
(5th
See Vaughn v. Wood-
Cir.
2011)
( "Disparate
treatment occurs where an employer treats one employee more harshly
than other 'similarly situated' employees for
14
Document No. 5
~
'nearly identical'
8.
15
Plaintiff's Response focuses exclusively on the argument
that Defendant's stated reasons for terminating Plaintiff are
pre textual , and simply ignores the requirement for showing a prima
facie case of discrimination.
See Document No. 31.
16
Document No. 31
~
18.
17 The uncontroverted evidence is that Zelinka Deal,
at least,
is African-American. Document No. 29, ex. 2 ~ 23.
8
conduct.").
Accordingly, Defendant is entitled to summary judgment
on Plaintiff's race discrimination claim.
B.
Age Discrimination
Plaintiff alleges that "Defendant intentionally discriminated
against Plaintiff because of his age, 58, in violation of the ADEA
by terminating him instead of younger personnel on staff." 18
The ADEA makes it unlawful for an employer to discharge or
otherwise
discriminate
person's age.
against
See 29 U.S.C.
an
individual
623 (a) (1) .
§
because
of
that
"To establish an ADEA
claim, '[a] plaintiff must prove by a preponderance of the evidence
(which may be direct or circumstantial) , that age was the 'but-for'
cause of the challenged employer decision."
Inc., 610 F.3d 917, 922 (5th Cir. 2010)
Moss v. BMC Software,
(quoting Gross v. FBL Fin.
Servs., Inc., 129 S. Ct. 2343, 2351 (2009)).
Plaintiff
evidence
that
fails
age
to
was
advance
the
any
but-for
argument
cause
of
or
his
produce
any
termination.
Although he argues that Defendant's reason for terminating him was
pre textual , his Response makes no mention whatsoever of age.
St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2752 (1993)
a reason cannot be proved to be
unless
it
is
shown both
discrimination was
18
the
Document No. 5
~
that
real
reason was
reason.")
9
("But
'a pretext for discrimination'
the
11.
See
false,
(emphasis
and
that
in original).
Furthermore,
that,
Plaintiff affirmatively admitted in his deposition
other than his belief that his job performance was better
than other people's, "there's no other evidence in [his] opinion to
support
age."19
[his]
claim that
Accordingly,
[he was]
terminated because of
[his]
Plaintiff has not raised a genuine issue of
material fact as to whether his age was the but-for cause of his
termination,
and Defendant
is
entitled
to
summary
judgment on
Plaintiff's age discrimination claim.
C.
Retaliation
Plaintiff alleges "[a]fter Plaintiff made inquiry regarding
another position within
the
organization,
Defendant
against him by terminating his employment."20
Complaint
contains
no
explanation
Plaintiff's Amended
of
the
purported
ex. 1 at 36:23-37:23 ("Q. Did anyone
make any comments to you about being old or older? A. No, ma'am.
Q. Did anyone ever make jokes in the office about older employees
or employees who were older not being able to do a job? A. Not
that I know of. Q. Did anyone ever circulate e-mails about wanting
to keep a younger workforce? A. Not that I know.
Q. Did anyone
ever make any references to you that Interfaith wanted a younger
workforce?
A. Not that I know of.
Q. Did anyone at--and I
literally mean anyone that you work with at Interfaith.
A. Not
that I know of.
Q. Okay.
Was there anything in your work
environment on a daily basis that made you think that Interfaith
was discriminating against employees who were older? A. Not that
I know of.
Q. And would you agree with me, Mr. Davis, that other
than your belief that your job performance was better than other
people's, there's no other evidence in your opinion to support your
claim that you were terminated because of your age? A. Not that I
know of.") .
19
See Document No.
further
retaliated
20 Document No. 5
29,
~ 12.
10
retaliation, and neither Plaintiff's Response to Defendant's Motion
for Summary Judgment nor Plaintiff's summary judgment evidence
mentions
position.
retaliation or Plaintiff's
"inquiry regarding another
II
Although Plaintiff's Amended Complaint does not identify the
law under which his putative retaliation claim arises, 21
"[t] he
anti-retaliation provisions of the ADEA and Title VII are similar
and 'cases interpreting the latter provision are frequently relied
upon in interpreting the former. '"
F.3d
1224,
1226
n.1
(5th
Cir.
Holt v. JTM Indus., Inc., 89
1996)
(citation
omitted).
To
establish a prima facie case of retaliation under Title VII or the
ADEA, the plaintiff must establish that:
(1) he participated in an
activity protected by Title VII or the ADEA;
an
adverse
employment
action
against
(2) his employer took
him;
and
(3)
a
causal
connection exists between the protected activity and the adverse
employment action.
McCoy v. City of Shreveport, 492 F.3d 551, 556-
57
(Title VII); Holt,
(5th Cir. 2007)
89 F.3d at 1225-26
(ADEA).
Plaintiff has presented no evidence that he opposed discrimination
on the basis of race or age or otherwise engaged in any activity
protected by Title VII or the ADEA.
Serv.,
Inc.,
406 F.
App'x 837,
840
See Brown v. United Parcel
(5th Cir.
2010)
("Title VII
protects only opposition to discrimination based on 'race, color,
21 Defendant treats
Plaintiff's retaliation claim as arising
under Title VII. Document No. 29-1 at 14-24.
11
religion,
§
sex,
2000e-2(a)
(l))i
or
29
national
U.S.C.
origin.'")
§
623(d)
(quoting
(prohibiting
42
U.S.C.
retaliation
against employee who "has opposed any practice made unlawful by
[the ADEA]"
or who "has made a charge,
testified,
participated in any manner in an investigation,
litigation under
[the ADEA]").
assisted,
or
proceeding,
or
Because Plaintiff has failed to
present evidence of retaliation against him based on his engaging
in protected activity, Plaintiff's retaliation claim is dismissed.
IV.
Order
For the foregoing reasons, it is
ORDERED that Defendant Woodlands Religious Community,
d/b/a Interfaith of the Woodlands'
(Document No. 29)
Inc.
Motion for Summary Judgment
is GRANTED, and Plaintiff Nolan Davis's claims
are DISMISSED with prejudice.
The Clerk will enter this Order, providing a correct copy to
71f
all parties of record.
SIGNED at Houston, Texas, on this
fer
ct;y of November, 2014.
I G WERLEIN, JR.
TATES DISTRICT JUDGE
12
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