Morris v. Texas Health and Human Services Commission
Filing
32
MEMORANDUM OPINION AND ORDER granting in part and denying in part 22 MOTION for Summary Judgment , denying as moot 29 MOTION for Leave to File Sur-Reply to Defendant's Reply to Plaintiff's Opposition to Motion for Summary Judgment, (Advisement regarding Settlement due by 9/9/2019), Deadlines terminated (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LENA D. MORRIS,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
V.
TEXAS HEALTH AND HUMAN
SERVICES COMMISSION,
Defendant.
August 08, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3116
MEMORANDUM OPINION AND ORDER
Plaintiff,
Lena
D.
Morris,
brings
this
action
against
defendant, the Texas Health and Human Services Commission ("THHSC")
for race,
sex,
violation
of
and age discrimination and for retaliation in
Title
VII
of
the
("Title VII"), as amended, 42 U.S.C.
Civil
§
Rights
Act
of
1964
2000e-2, et seq., and for
interference and retaliation in violation of the Family and Medical
Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.
Pending before the
court are Defendant's Motion for Summary Judgment ("Defendant's
MSJ") (Docket Entry No. 22), and Plaintiff Lena D. Morris' Motion
for Leave to File Sur-Reply to Defendant's Reply to Plaintiff's
Opposition to the Motion for Summary Judgment ("Plaintiff's Motion
for Leave to File Sur-Reply")
(Docket Entry No. 29).
For the
reasons set forth below, Plaintiff's Motion for Leave to File Sur
Reply will be denied as moot, and Defendant's MSJ will be granted
in part and denied in part.
I.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material facts are
Fed. R. Civ. P. 56.
"genuine"
Disputes about
if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
A
"party moving for summary judgment must 'demonstrate the absence of
a genuine issue of material fact,' but need not negate the elements
of the nonmovant' s case."
Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en bane) (per curiam) (quoting Celotex
Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986)).
"If the moving
party fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant' s response."
If, however, the
moving party meets this burden, Rule 56 requires the nonmovant to
go beyond the pleadings and show by admissible evidence that
specific facts exist over which there is a genuine issue for trial.
Id.
"[T]he court must draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility determinations
or weigh the evidence."
Reeves v. Sanderson Plumbing Products,
Inc., 120 S. Ct. 2097, 2110 (2000).
Factual controversies are to
be resolved in favor of the nonmovant, "but only when there is an
actual controversy, that is, when both parties have submitted
evidence of contradictory facts."
-2-
Little, 37 F.3d at 1075.
II.
Undisputed Facts 1
In December of 2014 Lisa Pietrzyk ("Pietrzyk"), Director of
the Office of Inspector General
( "OIG") for the THHSC,
offered
Morris, an African-American woman, an Investigator VI position at
the Electronic Benefits Transactions
("EBT") Unit in Houston. 2
Morris accepted the offer and began working for the THHSC as a
probationary employee on January
9,
2015. 3
Morris initially
reported to Ronald Mendoza ("Mendoza"), manager of OIG's Houston
office. 4
Within Morris' first month of employment, Orlando Mayers
("Mayers") was hired to manage the EBT Unit, and he became Morris's
direct supervisor even though he was based in Austin. 5
see Facts, Plaintiff's Original Petition, Docket Entry
No. 1-4, pp. 4-6; Factual Background, Defendant's Brief in Support
of Motion for Summary Judgment ("Defendant's Brief in Support of
MSJ"), attached to Defendant's MSJ, Docket Entry No. 22-1,
pp. 8-10; and Factual Background, Plaintiff Lena D. Morris'
Response in Opposition to Defendant's Motion for Summary Judgment
("Plaintiff's Response"), Docket Entry No. 26, pp. 5-12 (citing
Declaration of Lena D. Morris ("Morris Declaration"), Exhibit A to
Plaintiff's Response, Docket Entry No. 26-1).
Page numbers for
docket entries in the record refer to the pagination inserted at
the top of the page by the court's electronic filing system.
1
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 3 � 7-8.
See December 23, 2014, Letter from
Lisa Pietrzyk to Lena D. Morris, Exhibit B to Plaintiff's Response,
Docket Entry No. 26-2, p. 14.
2
Id. � 10 and Oral Deposition of Lena D. Morris ("Morris
Deposition"), p. 91:2-4, Exhibit 18 to Defendant's MSJ, Docket
Entry No. 22-2, p. 93 (acknowledging that she was a probationary
employee).
3
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 3 � 11.
4
5
Id. at 4 � 16.
-3-
On
her
first
day
of
work
Morris
provided
Mendoza
a
Certification of Health Care Provider for Family Member's Serious
Health
Condition
intended
to
show
that
she
intermittent FMLA leave to care for her daughter.
qualified
for
Morris filled
out, signed, and dated the first page on January 8, 2015, stating:
My leave will be sporadic and unscheduled at times. I
will have to transport her to various doctor and
therapist appointments. And during the time that she is
incapacitated, I will need to stay with her. I have to
tend to her daily needs during these times. 6
The subsequent pages had been filled out, signed, and dated by her
daughter's health care provider on September 24, 2014. 7
Two other employees of the EBT Unit in Houston both started
their employment at or near the time that Morris started her
employment there:
Rick McDougald ("McDougald")
and Steve Lightfoot
("Lightfoot")
(Investigator VI)
( Investigator V) . 8
Although
Lightfoot's position as Investigator V was a lower-ranked position
than Morris's and McDougald's position, Lightfoot earned $63,139.00
per annum while Morris and McDougald earned $52,800. 9
Id. at 3, 11 (citing Attachment 1, Docket Entry No. 26-1,
p. 9) .
6
Certification of Health Care Provider for Family Member's
Serious Health Condition, Attachment 1 to Morris Declaration,
Docket Entry No. 26-1, pp. 10-12.
7
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 3, 12.
8
Id. , 8 (Morris's salary) and 4 , 14 (Lightfoot's salary)
(citing Government Salaries Explorer, Attachment 2 to Morris
Declaration, Exhibit A to Plaintiff's Response, Docket Entry
No. 26-1, pp. 14-15).
9
-4-
On January 14, 2015, Mendoza sent Pietrzyk an email stating:
[Morris] provided FMLA documentation for a family member
(daughter) that she occasionally takes to the doctor.
She has requested the following days off or adjustments
of hours listed:
The week of 1/20/15 - FMLA - Would like to work 11 hours
on 1/21, 1/22 and 10 hours on 1/23.
The week of 02/20/15 - Would like to work 4-10 hour[]
days to avoid taking leave.
The week of 02/26/15-02/27/15 Annual Leave - Would like
to work 3-10 hour days for that week.
The week of 03/03/15 - FMLA - Would like to work 4-10
hour[] days to avoid taking leave.
The week of 03/13/15 - FMLA - Would like to work 4-10
hour[] days to avoid taking leave.
These are appointments that are already scheduled. She
stated if other days come up unexpectedly, she will
inform us. She also indicated the reason she would like
to avoid having to take leave is due to if her daughter
is hospitalized, she will have the leave to cover her
being out. 10
On January 15,
2015,
Pietrzyk and Mayers engaged in an
exchange of emails about Morris's requests for leave that began
when Pietrzyk responded to Mayers' email from the day before by
asking, "Have all required documents been received and who reviewed
them?
Is Lena Morris EBT or FI?" 11
Mendoza replied by attaching
Morris's FMLA documents to an email that he sent to Pietrzyk
stating, "She is with EBT." 12
Pietrzyk responded by asking, "Does
Exhibit B to Plaintiff's Response, Docket Entry No. 26-2,
pp. 11-12.
10
11
Id. at 11.
-5-
this new employee meet the FMLA Ch 5 eligibility?" 13
replied:
Mendoza
"[Morris] has been employed with the State 17 years.
is a transfer from TWC.
She
She stated the FMLA was approved by the
other agency she was employed with.
If more information is needed,
please let me know." 14
Later the same day,�, January 15, 2015, Pietrzyk forwarded
the email chain about Morris's FMLA requests to James Williams,
Human Relations Manager, in the THHSC's Human Resources Section
along with the following message:
"Does this FMLA flex schedule
seem consistent with our agency? My understanding is that she's to
take leave and it[] codes as FMLA.
OIG doesn't allow probationary
employees to participate in flex schedule [s]
unless they pass probation." 15
like 10 hour days
Williams responded:
I believe we are dealing with two separate policies.
Supervisory approval to work or change a flexible
schedule is required according to the HR Policy
referenced below.
Flex Schedule
(Revised 5/1/04)
A flex schedule is a work schedule that allows
flexibility in the employee's arrival and departure
times. An employee must receive supervisory approval to
work or change a flexible schedule. Office coverage must
be maintained under the flex schedules. State offices
must be open between 8 am and 5 pm, Monday through
Friday, and remain open during the noon hour of each
13
Id. at 10.
-6-
workday with at least one person on duty to accept calls,
receive visitors, and transact business.
The FMLA should be invoked for the employee's leave
related to the WH-380-F for her daughter's medical
condition. We can discuss further if needed. 16
Pietrzyk forwarded Williams' response to Mayers. 17
On March 17, 2015, Morris and Mayers exchanged text messages
regarding Morris's intent to be out of the office on Wednesday,
March 18th; Mayers told Morris that he thought she intended to be
out of the office on March 17th and that she needed to work eight
hours on March 18th. 18
On March 23, 2015, Mayers sent an email to Cleve Tolver, Human
Resources Specialist IV, in THHSC's Employee Relations Unit, asking
Tolver to call him to discuss documents regarding Morris's request
for time off. 19 Later that day Tolver sent Mayers an email stating:
FMLA can be granted for the employee to care for the
eligible family member.
I did notice that the doctor completed the form back in
September of 2014.
I would like to suggest that you
obtain new information and start the FMLA based on what
the new information states.
1st, check to see if the employee has 12 months of state
service and has worked 1250 hours within the last year.
If the employee meets these requirements, provide the
16
Id. at 9.
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 5 1 22 (citing Attachment 4, Docket Entry
No. 26-1, pp. 24-30) .
18
19
Exhibit 4 to Defendant's MSJ, Docket Entry No. 22-2, p. 23.
-7-
employee with form WH381 to inform them they meet the
requirements. Then, provide them with WH380E to return
to you in 15 days.
When you receive the new WH380E, scan it to me and we can
discuss.20
On March 24, 2015, Morris sent an email to Mayers titled
"Harassment over FMLA and Time," which Mayers forwarded to Pietrzyk
the same day.
In pertinent part the March 24, 2015, email states:
. You indicated on Friday that you had already
fired Gina, the only other woman in your three units for
missing too much work.
It is distressing when a
supervisor threatens one's job. I believe this because
you clearly stated that you are out to fire me for not
having, as you put it, "
. worked a full week since
you have been here." This was said by you despite my
having used Flex Time to make up my hours and work a 40
hour week, all previously approved by you. I was told
when I first came on board that my permanent manager
would work with me on my leave situation. I requested to
work 7:00 a.m. to 3:30 p.m. since that was my schedule at
the agency that I transferred from. I was told that once
Steve started I would be able to work the "Flex Time"
hours where I was working 7:00 a.m. - 3:30 p.m., the same
as Rick has been allowed to work all along. You claim
that Lisa Pietryzk [sic], the Director of the division,
is the one telling you that I cannot do this now because
I am on probation; yet she is the one who approved Rick's
Flex Time. Why the double standard? Why do women not
get the same flexibility as the men? Is the real reason
you want to fire me is to be rid of all of the women, or
is it that you just don't like the idea of my being able
to take off to take my "special needs daughter" to her
appointments?
This morning you called to inform me that you
received an email that states that even though I turned
in my FMLA paperwork when I began working here that I am
not on FMLA. You then gave the reason why I am not on
FMLA as being that the paperwork that I turned in was
done in September. Lisa has had the paperwork since I
began and now management waits until almost three months
20Id.
-8-
later to tell me that it needs to be up-to-date. This is
unacceptable.
And you are saying that only you can
designate my Sick leave as FMLA in CAPPS.
This is a
blatantly transparent attempt to circumvent the FMLA
protections that are afforded me.
The Agency knew prior to my hire that I was a single
I left two voice mail
morn of a special needs child.
messages for Lisa before showing up to report to work,
that were never answered by her so that I could discuss
this with her before coming on board.
I have kept you
informed of when my daughter's doctor's appointments have
been, as well as having filed all of the appropriate FMLA
paperwork with the agency for her condition. As a matter
of fact, I have forwarded to you several times the FMLA
paperwork that I have filed with the agency because you
said that Lisa did not have it and wanted you to get it
from me.
You keep referring to Texas being an "At Will" state
which allows you to fire me for any, or even no reason at
all. As I told you, if you are firing me for time missed
while taking my child to the doctor, or anything else
covered by FMLA, you will be in violation of Federal Law,
which supersedes state law and agency policy /memorandums.
We have discussed these FMLA issues several times, and
most of the time that I was off for my daughter; I made
up the time by fulfilling my 40 hours per week with your
full knowledge and permission.
As I stated to you on Friday, I am feeling harassed
at this point with the repeated requests for the same
FMLA paperwork, and your threats to fire me because of my
taking off to care for my daughter and take her to her
doctor's appointments. At this point, I am afraid that
you will say that you are firing me for a made up reason
in an attempt to circumvent the rationale behind the FMLA
protections.
I did not choose for my daughter to have the
problems that she does. I have had to work and care for
her virtually on my own.
If every agency or business
behaved in the way that you are acting then there would
be no work available for parents of special needs
children.
Per our conversation, when you informed me that I
will not be able to use "Flex Time," you also said that
I will just have to use my personal leave time, leaving
-9-
me with no cushion the next time my daughter is
hospitalized.
That is your right to do so, but you
cannot deny my right to take my child to the doctor or
hospital as long as I have filed the proper FMLA
paperwork, as I have. You also stated that you may send
me to El Paso, and if I declined then that would be
I know that
another reason that I can be fired.
traveling is a job requirement, and would be happy to
travel anywhere. I would just make arrangements for my
21
daughter.
On March 27, 2015, Morris filed an internal complaint with the
THHSC's Office of Civil Rights,
alleging that she was being
discriminated against because of her sex, female, 22 and that she was
being subjected to "a campaign of harassment due to the dislike of
my bringing in FMLA paperwork on my first day of employment.
I was
asked to provide the paperwork on no less than three occasions." 23
On April 6, 2015, Tolver and Mayers engaged in an exchange of
emails about Morris's FMLA eligibility in which Tolver informed
Mayers that he had heard back from all the agencies, that Morris
had previously been certified for FMLA with the Office of Injured
Employee Counsel, and that Mayers should provide Morris with form
WH380E/F and give her the form WH381 once she was determined to
meet requirements. 24
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, pp. 5-6 11 24-25 (citing Attachment 5, Docket Entry
No. 26-1, pp. 31-34) .
21
Id. at 6-7 1 29 (citing Attachment 9 to Morris Declaration,
Docket Entry No. 26-1, pp. 52-54).
22
23
p. 54.
Attachment 9 to Morris Declaration, Docket Entry No. 26-1,
Exhibit
pp. 20-22.
24
4
to
Defendant's
-10-
MSJ,
Docket
Entry
No.
22-2,
Also on April 6, 2015, Mayers and Pietrzyk responded to the
email that Morris sent to Mayers on March 24, 2015, and Mayers
forwarded to Pietrzyk.
In pertinent part, Mayers denied making
many if not most of the statements that Morris attributed to him,
denied having approved Morris's use of flex time to make up time
off, i.e., flexing within the week, and asserted that he had not
denied Morris sick leave.
Pietrzyk reminded Morris that they had
previously discussed that OIG work hours are eight hours between
7:00 a.m. and 6:00 p.m. and could not end earlier than 4:00 p.m,
flex time within a day must be preapproved, and probationary staff
are not eligible to work a compressed work week.
Pietrzyk referred
Morris to Tolver for FMLA questions, and advised Morris to make
arrangements for childcare ahead of time because her position
required up to 60% travel that could be required on a daily,
weekly, monthly, or annual basis based on business need. 25
On April 8, 2015, Tolver sent Mayers an email confirming that
Morris "meets the requirements for FMLA. " 26
On April 29, 2015, Morris raised her voice to Mayers during a
meeting when Mayers informed her that she would have to work late. 27
On April 30,
2015,
Mayers sent Morris an email "to recap my
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 6 � 26 (citing Attachment 6 to Morris
Declaration, Docket Entry No. 26-1, pp. 36-40).
25
26
Exhibit 4 to Defendant's MSJ, Docket Entry No. 22-2, p. 20.
Morris Deposition, pp. 95:5-23, Exhibit 18 to Defendant's
MSJ, Docket Entry No. 22-2, p. 94.
27
-11-
discussion
concerning
the
outburst
working late," 28 in which Mayers wrote:
to
instructions
regarding
"[P]lease refrain from any
open opposition to instructions given by management.
Please
discuss in private any concerns/issues you may have with the
directives." 29
On May 7, 2015, Morris replied with an email to
Mayers copied to Pietrzyk in which Morris agreed that "we should
keep our disagreements private," 30 but complained, "I find it very
disturbing that you want me to talk to you in private so there will
be no witnesses, yet you hold your confrontational meetings with me
in the presence of multiple male staff." 31
On May 8, 2015, Mayers called Morris to a meeting at which he
gave her a termination letter, 32 stating in pertinent part:
After much deliberation, it has been determined that you
are not suited for the assigned Investigator VI position.
I regret to inform you that your last day of employment
with [THHSC-OIG] will be May 08, 2015.
The Department's policy regarding probationary employees
is contained in Health & Human Services Human Resources
Manual, Chapter 11, which states in part:
"Probationary employees may be dismissed for any non
discriminatory reason at any time during the employees'
probationary period (first six months of employment)
28
Exhibit 10 to Defendant's MSJ, Docket Entry No. 22-2, p. 44.
29Id.
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 6 1 28 (citing Attachment 8, Docket Entry
No. 2 6 -1, pp. 4 8 - 5 0) .
30
31
p. 50.
Attachment 8 to Morris Declaration, Docket Entry No. 26-1,
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 7 1 30 (citing Attachment 10, Docket Entry
No. 26-1, pp. 55-56) .
32
-12-
. if it is determined the employee was not suited for
the assigned position. In these cases:
•
The employee will receive written notice of
which states that employment is
discharge,
terminated because the hiring authority determined
the employee was not suited for the assigned
position,
•
No cause will be cited .
33
On November 23, 2015, the THHSC's Office of Civil Rights sent
Morris a letter stating that its investigation of her March 27,
2015, internal complaint did not substantiate her allegations. 34
III.
Plaintiff's Motion to File Sur-Reply
Asserting that "Defendant has attempted to raise in its Reply
Brief [] arguments that Defendant did not raise in its Dispositive
Motion filing, including, but not limited to, a different legal
argument for seeking to have Plaintiff's FMLA Retaliation Claim
dismissed as a matter of law," 35 Morris seeks leave to file a surreply.
Asserting that its reply did not raise new legal theories
or present new evidence, the THHSC opposes Morris's motion for
leave to file sur-reply. 36
After carefully reviewing the THHSC's
Reply in Support of Motion for
Summary
Judgment,
the court
Attachment 10 to Morris Declaration, Docket Entry No. 26-1,
33
p. 56.
Attachment 11 to Morris Declaration, Docket Entry No. 26-1,
pp. 57-61) .
34
Plaintiff's Motion for Leave to File Sur-Reply, Docket Entry
No. 29, p. 1.
35
Defendant's Opposition to Plaintiff's Motion for Leave to
File Sur-Reply, Docket Entry No. 31, p. 2.
36
-13-
concludes that it neither raises new legal theories nor presents
new evidence.
Moreover, review of Morris's proposed sur-reply
shows that she seeks only to clarify applicable law as stated in
two cases:
126
S.
Burlington Northern & Santa Fe Railway Co. v. White,
Ct.
2405
(2006),
and
Lanier
v.
University of
Texas
Southwestern Medical Center, 527 F. App'x 312 (5th Cir. 2013) . 37
Because the THHSC cited both of these cases in its original summary
judgment
and
brief,
because
the
court
does
not
find
the
clarifications offered in Morris's sur-reply necessary to rule on
Defendant's MSJ, Morris's Motion for Leave to File Sur-Reply will
be denied as moot.
IV.
Defendant's Motion for Summary Judgment
The THHSC argues that it is entitled to summary judgment on
Morris's Title VII and FMLA claims because she is unable to
establish a prima facie case and, alternatively, because Morris was
discharged
for
insubordination.
the
legitimate,
Morris
responds
nondiscriminatory
that
fact
reason
issues
of
preclude
granting the THHSC's motion for summary judgment on either her
Title VII or her FMLA claims.
A.
Title VII Claims
Morris
asserts
Title
VII
claims
for
race
and
sex
discrimination and for retaliation for having engaged in activity
Plaintiff Lena D. Morris's Sur-Reply to Defendant's Reply to
Plaintiff's Opposition to the Motion for Summary Judgment, Docket
Entry No. 29-1, pp. 3-5.
37
-14-
protected by Title VII. Morris alleges that she was paid less and
not provided the same opportunity to use flex time as her non
African-American male counterparts, and that when she opposed the
THHSC's discriminatory treatment she suffered a hostile environment
and her employment was terminated in
complained of discrimination.38
retaliation
for having
In response to Defendant's MSJ,
Morris argues that "she was discriminated against with regards to
pay because of her race and gender," 39 and that her "Title VII
retaliation claim cannot be dismissed as a matter of law." 40
1.
Applicable Law
Title VII protects individuals from discrimination by an
employer based on the "individual's race, color, religion, sex, or
national origin."
42 U.S.C.
§
2000e-2 (a) (1).
A plaintiff may
establish claims for employment discrimination in violation of
Title VII by using direct evidence or by using the indirect method
of proof set forth in McDonnell Douglas Corp. v. Green, 93 S. Ct.
1817 (1973). See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.
1999).
Direct evidence "is evidence that, if believed, proves the
fact of discriminatory animus without inference or presumption."
Plaintiff's Original Petition, Docket Entry No. 1-4, pp. 6-8
11 24-42.
38
39
Plaintiff's Response, Docket Entry No. 26, p. 24.
Id. at 26. Morris also alleges a Title VII claim for age
discrimination, which is not actionable under Title VII. Morris
has failed to offer either evidence or argument in support of her
discrimination claims based on age or use of flex time. The court
therefore concludes that Morris has abandoned these claims.
40
-15-
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir.
2004) .
Morris relies on the McDonnell
Douglas framework to
establish her Title VII claims.41 Morris's initial burden under the
McDonnell Douglas framework is to establish a prima facie case.
93
If she establishes a prima facie case, the burden
S. Ct. at 1824.
shifts to the THHSC to articulate a legitimate, nondiscriminatory
reason for its actions.
If the THHSC meets this burden,
Morris must adduce evidence capable of establishing that the
THHSC's stated reasons are false and are, instead, pretexts for
discrimination.
2.
Application of the Law to the Undisputed Facts
(a)
The
Id. at 1825.
The THHSC is Entitled to Summary Judgment on
Morris's Claims of Race and Gender Discrimination.
THHSC
argues
that
Morris
cannot
prove
that
it
discriminated against her on the basis of race and/or gender by
paying her less than male employees who were not African-American.42
Morris argues that she has adduced sufficient evidence to raise a
genuine issue of material fact for trial.43
To establish a prima facie case of Title VII discrimination
based on pay discrimination Morris must show "(1) 'that [she] was
Plaintiff's Response, Docket Entry No. 26,
McDonnell Douglas, 93 S. Ct. at 1817)
41
p.
24 (citing
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 21-23. See also Defendant's Reply
in Support of Motion for Summary Judgment ("Defendant's Reply"),
Docket Entry No. 27, pp. 17-18.
42
43
Plaintiff's Response, Docket Entry No. 26, pp. 26-27.
-16-
a member of a protected class'; (2) 'that [she] was paid less than
a non-member';
and
(3)
'that
[her]
circumstances are
identical" to those of' the better-paid non-member."
'"nearly
Mengistu v.
Mississippi Valley State University, 716 F. App'x 331, 334 (5th
Cir. 2018) (per curiam) (quoting Taylor v. United Parcel Service,
Inc., 554 F.3d 510, 522-23 (5th Cir. 2008)).
The THHSC does not dispute that Morris has satisfied two of
the three elements required to establish a prima facie case of pay
discrimination based on sex and/or race, i.e., Morris belongs to
two protected classes (African-American and female), and Morris was
paid less than a non-member of her protected classes, i.e., Steven
Lightfoot.
The THHSC argues that Morris is unable to satisfy the
third element of a prima facie case because
Director Pietrzyk hired two men during the same timeframe
as Morris to work in the same newly-created Electronic
Benefits Transfer ("EBT") unit: Rick McDougald and Steven
Lightfoot. . . At the time of hire, Morris and McDougald
had no previous work experience with HHSC agencies and
their starting salaries were therefore established at
$52,800.00. . . Lightfoot transferred into the EBT Unit
from another HHSC agency and possessed approximately 16
years of experience with HHSC agencies.
Lightfoot
earned a salary of $63,183.84 not because of his gender
but based wholly on cumulative pay increases gained over
the course of his lengthy career with HHSC. . . Morris's
claim fails because she received the same starting salary
as her similarly-situated male counterpart and she cannot
show that any other alleged pay disparity is the result
of discriminatory animus.44
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 22-23. See also Defendant's Reply,
Docket Entry No. 27, p. 17 (arguing that Morris "cannot establish
a prima facie case of discriminatory pay because Lightfoot is not
a suitable comparator").
44
-17-
In support of its argument the THHSC cites the Declaration of
Lisa Campos
Garza,
formerly
known as Lisa
Pietrzyk, and the
deposition testimony of Ronald Mendoza. Campos Garza testified that
[i] n addition to Lena Morris, I also hired two male
employees into the EBT Unit during the same timeframe,
Rick McDougald and Steven Lightfoot. Rick McDougald and
Lena Morris were hired at the same starting salary of
$52,800.00. Unlike Ms. Morris and Mr. McDougald, Steven
Lightfoot transferred from another HHSC agency, had years
of experience within HHSC agencies, and was already
earning more than $52,800.00.
As a result, Steven
Lightfoot was hired at an annual starting salary of
$63,138.84.45
Mendoza testified that
Lightfoot
had
prior
experience as an
investigator and came from the Fatality Unit at Child Protective
Services, which is an HHSC agency.46
Morris does not dispute that her circumstances were not nearly
identical to Lightfoot's circumstances.
Instead Morris argues that
THHSC's stated reasons for paying Lightfoot a higher salary are
pretextual because she had 17 years' experience as a state employee
and had
worked
for
the
THHSC's
predecessor agency,
but was
nevertheless paid less than Lightfoot who had a lower-ranking
position.
Morris also argues that the THHSC's stated reasons for
the pay disparity between her and Lightfoot are pretextual because
she was paid the same as McDougald
who
had no prior state
Declaration
of
Lisa
Campos
Garza
("Campos
Garza
Declaration"), p. 2 , 4, Exhibit 22 to Defendant's MSJ, Docket
Entry No. 22-2, p. 225.
45
0ral Deposition of Ronald Mendoza (mistitled Robert A.
Mendoza) ("Mendoza Deposition"), pp. 74:17-75:4, Exhibit 21 to
Defendant's MSJ, Docket Entry No. 22-2, p. 219.
46
-18-
experience, and she was paid less than the amount budgeted for her
position.47
In support of her argument, Morris cites her own
declaration stating that she "was first employed by the State of
Texas in 1991 with the Department of Health Services ('DHS'), which
was the predecessor agency to Defendant [THHSC] ," 48 and a document
that the THHSC provided during discovery showing that the salary
budgeted for her position was more than the salary that she was
offered and paid. 49
The THHSC replies that Morris has acknowledged Lightfoot's
investigative experience and transfer from within the THHSC, and
that Morris does not dispute that Lightfoot earned more in his
prior position than the THHSC paid her or McDougald. 50
The THHSC
also cites Campos Garza's deposition testimony that her decision
regarding Morris's pay was not based solely on budgeted salary, but
on Morris's skill set. 51
47
Plaintiff's Response, Docket Entry No. 26, pp. 25-26.
Id. (citing Morris Declaration, Exhibit A to Plaintiff's
Response, Docket Entry No. 26-1, p. 2, 2).
48
Id. (citing Exhibit B to Plaintiff's Response, Docket Entry
No. 26-2, p. 13).
49
Defendant's Reply, Docket Entry No. 27, p. 16 (citing Morris
Deposition, p. 60:7-22, Exhibit 18 to Defendant's MSJ, Docket Entry
No. 22 - 2, p. 83).
50
Id. at 17 (citing Oral Deposition of Lisa Campos Garza
("Campos Garza Deposition"), pp. 158:22-159:3, Exhibit 19 to
Defendant's MSJ, Docket Entry No. 22-2, p. 140 ("At the point that
I'm completing a 'Selection' box, I'm making decisions not based
(continued...)
51
-19-
Morris has not established her prima facie case because she
has failed either to argue or to show "that [her] circumstances are
'nearly identical to those of'" Lightfoot, i.e., the comparator
that she identifies as a better-paid non-member of her protected
classes. Mengistu, 716 F. App'x at 334. There are key differences
between Lightfoot and Morris that render Lightfoot an inappropriate
comparison.
Although Lightfoot started to work at the EBT Unit
about the same time as Morris, Lightfoot was hired into a different
position,
i.e.,
the Investigator V position as opposed to the
Investigator VI position that Morris held.
Unlike Morris who had
only worked for a predecessor of the THHSC for two brief periods of
time in the 1990s, 52 Lightfoot transferred to the EBT Unit from
another THHSC agency, i.e., the Fatality Unit at Child Protective
Services, where he not only performed investigative work but also
earned more than Morris was offered and paid by the THHSC.
Moreover,
the THHSC has provided evidence showing that Morris
earned the same salary as McDougald, a person who like Lightfoot
was outside of her two protected classes, but who unlike Lightfoot
( ••• continued)
solely on the budgeted salary, I'm basing it off of her, if she's
coming in as a transfer, just based upon her skill set, I'm making
the recommendation at that point. I don't necessarily go into the
Budget base spreadsheet and make decisions based upon just that
Budget base number.")).
51
Id. at 16 (citing Morris Deposition, pp. 15:23-16:15,
Exhibit 18 to Defendant's MSJ, Docket Entry No. 22-2, p. 74
(stating that she worked for the Department of Human Services from
approximately 1991 to approximately 1993, and then again for a few
months in 1997).
52
-20-
was hired into the same position at approximately the same time,
and like Morris had no prior experience with the THHSC.
concludes
that
Morris
has
failed
to
carry
her
The court
burden
of
establishing a prima facie case because she has failed to present
evidence capable of establishing that her circumstances are nearly
identical to those of Lightfoot. See Mengistu, 716 F. App'x at 334
(citing Taylor, 554 F.3d at 523).
See also Herster v. Board of
Supervisors of Louisiana State University, 887 F.3d 177, 185 (5th
Cir. 2018).
See also Ryburn v. Potter, 155 F. App'x 102, 109 (5th
Cir. 2005) (per curiam) (recognizing that relevant differences in
mail processing experience demonstrated that the plaintiff was not
similarly situated to employees who had more experience).
Even assuming that Lightfoot is an appropriate comparator,
Morris
has
failed
to
rebut
the
THHSC's
nondiscriminatory
explanations for their disparity in pay, i.e., Lightfoot's prior
investigative experience working for the Fatality Unit at Child
Protective Services, another THHSC agency, where he earned more
than the amount that Morris was offered and paid.53
Because these
are legitimate, nondiscriminatory reasons for the pay disparity
about which Morris complains, Morris bears the burden of showing
that the THHSC's reasons for paying Lightfoot more than her were
merely pretexts for race and/or gender discrimination.
Morris has
failed to carry her burden because she does not dispute that
See Mendoza Deposition, pp. 74:17-75:4,
Defendant's MSJ, Docket Entry No. 22-2, p. 217.
53
-21-
Exhibit
21
to
Lightfoot had prior investigative experience with a THHSC agency
which she did not have, or that Lightfoot was paid more at his
prior position than she was paid by the THHSC.
Morris's evidence
that she had more state experience than McDougald and that she was
not paid the full amount budgeted for her position is not evidence
from which a reasonable fact-finder could conclude that the THHSC's
stated reasons for paying Lightfoot more than her were false,
unworthy of credence, or motivated by animus for her race and/or
her gender.
(b)
The THHSC is Entitled to Summary Judgment
Morris's Title VII Retaliation Claim.
on
The THHSC argues that Morris cannot prove that it retaliated
against her for complaining about discrimination by terminating her
employment because Morris cannot establish a prima facie case and
cannot cite facts capable of establishing that its legitimate, non
discriminatory reasons for terminating her employment were pretexts
for retaliation. 54
Morris argues that she has adduced sufficient
evidence to raise genuine issues of material fact for trial. 55
A prima facie case of retaliation requires Morris to prove
(1) she participated in protected activity; (2) her employer
that:
took an adverse employment action against her; and (3) a causal
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 24-27. See also Defendant's Reply,
Docket Entry No. 27, pp. 17-18.
54
55
Plaintiff's Response, Docket Entry No. 26, pp. 26-27.
-22-
connection exists between her protected activity and the adverse
action.
See Hernandez v. Yellow Transportation,
Inc., 670 F.3d
644, 657 (5th Cir.), cert. denied, 133 S. Ct. 136 (2012) (citing
Taylor, 554 F.3d at 523).
Once Morris makes a prima facie case of
retaliation,
the
shifts
'legitimate,
non-retaliatory reason for the adverse employment
action.'"
burden
to
the
THHSC
to
"provide
a
Hernandez, 670 F.3d at 657. The burden then shifts back
to Morris to prove that her protected conduct was the but-for cause
of the THHSC's adverse employment decision.
Id.
The parties do not dispute that Morris has satisfied the first
two prongs of a prima facie case of retaliation,
i.e.,
Morris
complained of discrimination by filing an internal complaint with
the THHSC's Office of Civil Rights56 on March 27, 2015, alleging
inter alia that she was being discriminated against because of her
sex (female), 57 and that she suffered an adverse action when her
employment was terminated on May 8, 2015.
The THHSC argues that
Morris is unable to establish a prima facie case because there is
no causal connection between her termination and her protected
activity.
The THHSC argues:
Morris identifies only two instances of alleged
protected activity. First, she cites an email that she
sent to her supervisor, Orlando Mayers, on March 24,
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, p. 24.
56
57
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, pp. 6-7 1 29 (citing Attachment 9 to Morris
Declaration, Docket Entry No. 26-1, pp. 52-54).
-23-
2015. Appx. 027-029. The title of the email summarizes
the nature of her complaint: "Harassment over FMLA and
Time." Id. In her Original Complaint, Morris wrote that
she "informed Mr. Mayers that she believed that she was
being harassed because of her effort for FMLA
designation." Doc. 1-4 at 113. Of course, complaining
about harassment regarding FMLA is not protected activity
under Title VII.
The second instance of alleged protected activity is
Morris's internal complaint, filed on March 27, 2015.
Appx. 076 at 31:2-12 (confirming that the "internal
complaint" referred to in her Original Complaint was
filed on March 27). Morris alleges that "submission of
her internal complaint only increased the severity and
amount of the hostility that she suffered." Doc. 1-4 at
1 19. Although OIG acknowledges that her internal
complaint constitutes protected activity, both Pietrzyk
and Mayers testified that they had no knowledge of
Morris's internal complaint until after her termination.
Appx. 116 at 71:4-10 ("Q. Do you know if Ms. Morris filed
her complaint while she was still an employee at OIG?
A. I don't know.
Q. Do you recall how long after
Ms. Morris had separated from OIG that you first learned
about the complaint? A. It was very soon after."); Appx.
184 at 103:25, 104:1-3 ("Q.
. Were you aware that
Ms. Morris had filed a civil rights complaint about the
way she was being treated in OIG? A. No."). In fact,
Morris testified that she was notified of her termination
at 11:00 a.m. on May 8, 2015, but OIG management did not
receive notice that Morris filed an internal complaint
until hours after her dismissal, at approximately 2:00
p.m. that afternoon. Appx. 091 at 91:4-21 (confirming
that termination occurred at 11:00 "in the morning" on
"May 8th"); Appx. 056. 58
"Appx. 56" on which the THHSC relies as evidence that Morris's
supervisors did not receive notice that she had filed an internal
complaint until after they had terminated her employment is an
email from Verna Neal, Civil Rights Manager, to Mayers and Pietrzyk
on Friday, May 8, 2015, at 1:52 p.m., stating:
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 24-25.
58
-24-
This is notice that Lena Morris filed an Employment
Discrimination Complaint with the Health and Human
Services Commission (HHSC) Civil Rights Office (CRO) on
March 27, 2015.
The details of her complaint are
explained in the attached notice.
Brian Henry, Civil Rights Specialist, is assigned to
investigate the complaint.
Please provide a written
response to the allegations in Ms. Morris' complaint to
the CRO by Monday, June 1, 2015. 59
Morris does not dispute that she has failed to show a causal
connection between her March 27, 2015, internal complaint and her
termination because she has failed to cite evidence showing that
her supervisors knew about the internal complaint before they
terminated
her
employment.
See
Tureaud
v.
Grambling
State
University, 294 F. App'x 909, 914 (5th Cir. 2008) (per curiam) ("To
establish a 'causal link' [between] the protected activity and the
adverse employment decision, the evidence must demonstrate that the
decision maker had knowledge of the protected activity.").
argues
instead
that
she
engaged
in
protected
Morris
activity
by
complaining of gender discrimination in an email exchange that she
had with Mayers and Pietrzyk from March 24 through April 10, 2015,
and in an email that she sent to Mayers and Pietrzyk on May 7,
2015. 6 °
Citing Evans v. City of Houston, 246 F.3d 344 (5th Cir.
2001), Morris argues that her Title VII retaliation claim cannot be
59
Exhibit 14 to Defendant's MSJ, Docket Entry No. 22-2, p. 58.
Plaintiff's Response, Docket Entry No. 26, p. 26 (citing
Morris Declaration, Exhibit A to Plaintiff's Response, p. 5 �� 2528, Docket Entry No. 26-1, p. 6 and Attachments 5-8 thereto, Docket
Entry No. 26-1, pp. 31-50).
60
-25-
dismissed as a matter of law because this activity was closely
proximate in time to her termination on May 8, 2015. 61 In Evans the
Fifth Circuit held that "[c] lose timing between an employee's
protected activity and an adverse action against [her] may provide
the 'causal connection' required to make out a prima facie case of
retaliation," and that "'a time lapse of up to four months has been
found sufficient to satisfy the causal connection for summary
judgment purposes.'"
Id. at 354.
Title VII provides that an employee has engaged in protected
activity if she has (1) "opposed any practice made an unlawful
employment practice by this subchapter, " or (2) "made a charge,
in
an
investigation, proceeding, or hearing under this subchapter."
42
testified,
u.s.c.
§
assisted,
2000e-3 (a).
or
participated
in
any
manner
" [A] n informal complaint may constitute
protected activity for purposes of retaliation claims."
Amanduron
v. American Airlines, 416 F. App'x 421, 424 (5th Cir. 2011) (per
curiam) (citing Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617,
626 (5th Cir. 2008) (adopting the majority rule that "allows an
informal, internal complaint to constitute protected activity" in
the context of a Fair Labor Standards Act case)
The Fifth Circuit
has noted, however, that the rule regarding the recognition of
informal complaints as protected activity includes some "necessary
qualifications to the majority rule," and that "not all 'abstract
Id. (misstating the date of her termination as May 7, 2015,
instead of May 8, 2015).
61
-26-
grumblings' or vague expressions of discontent are actionable as
complaints."
Hagan, 529 F.3d at 626 (quoting Hagan v. Echostar
Satellite L.L.C., Civil Action No. H-05-1365, 2007 WL 543441, at *4
(S.D. Tex. February 16, 2007)).
Thus, although the Fifth Circuit
recognizes informal complaints as protected activity, the court
must still determine whether the email exchange between Morris and
her supervisors, Mayers and Pietrzyk, from March 24 through
April 10, 2015, and the email that she sent to Mayers and Pietrzyk
on May 7, 2015, constitute informal complaints of race and/or
gender discrimination.
Morris's email
Id.
exchanges
with
Mayers
and
Pietrzyk
from
March 24 through April 10, 2015, and the email that Morris sent to
Mayers and Pietrzyk on May 7, 2015, 62 focus on her efforts to gain
permission to take FMLA leave.
Morris's May 7, 2015, email to
Mayers was sent in reply to an email from Mayers regarding the
April 29, 2015, incident during which Morris raised her voice to
Mayers.
In the May 7, 2015, email Morris agreed that "we should
keep our disagreements private," 63 but complained, "I find it very
disturbing that you want me to talk to you in private so there will
be no witnesses, yet you hold your confrontational meetings with me
in the presence of multiple male staff." 64
Neither the email
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 6 1 28 (citing Attachment 8, Docket Entry
No. 26-1, pp. 48-50).
63
64
p. 50.
Attachment 8 to Morris Declaration, Docket Entry No. 26-1,
-27-
exchange nor the May 7, 2015, email complain about or oppose any
practice made unlawful by Title VII.
Although
some
of
the
emails
that
Morris
sent
to
her
supervisors complain that McDougald, who is not a member of her
protected classes, was allowed to work a flex schedule that she
sought to work, and that Mayers treated her differently than he
treated male employees by confronting her in the presence of other
male employees,
schedule,
neither changing - or failing to change - her
nor confronting her in the presence of other male
employees constitutes an employment practice made unlawful by Title
VII.
See Johnson v. Halstead, 916 F.3d 410, 420 (5th Cir. 2019)
(recognizing that a shift change with no change in total hours or
compensation is generally not an actionable adverse employment
action)
Moreover, the THHSC has presented evidence that probationary
employees like Morris and McDougald were not permitted to work flex
schedules, and that after Morris informed Pietrzyk that McDougald
was working such a schedule, Pietrzyk immediately told McDougald he
was not allowed to do so;
and McDougald stopped working flex
schedules. 65 The complaints of disparate treatment that Morris made
in the emails she cites as evidence of protected activity are not
informal complaints of race and/or gender discrimination but are
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, p. 22 (citing Campos Garza Declaration,
Exhibit 22 to Defendant's MSJ, Docket Entry No. 22-2, p. 225 1 5).
65
-28-
abstract grumblings and vague expressions of discontent that no
reasonable
employer
would
have
understood
as
complaints
expressions of opposition to unlawful discrimination.
v. RSC Equipment Rental, Inc., 485 F. App'x 649,
or
See Stewart
652 (5th Cir.
2012) (per curiam) (first element of prima facie retaliation claim
not met where "no reasonable employer would have understood [the
to
activity]
be
an
expression
of
opposition
to
unlawful
discrimination at work").
The court concludes that the THHSC is entitled so summary
judgment on Morris's Title VII retaliation claim because Morris has
failed to establish a prima facie case by citing evidence capable
of proving a causal connection between her termination and the
protected activity alleged in her Original Complaint,
i.e. the
filing of an internal complaint on March 27, 2015, and because the
emails to her supervisors that she argues constitute protected
activity
are
not
discrimination
informal
but,
complaints
abstract
instead,
of
race
and/or
grumblings
gender
and
vague
expressions of discontent that no reasonable employer would have
understood as complaints or expressions of opposition to employment
practices made unlawful by Title VII.
B.
FMLA Claims
Morris
has
asserted
retaliatory termination.
23.
FMLA
claims
for
interference
Morris alleges:
As described above, Plaintiff was an employee who
was attempting to exercise her rights under the
Family Medical Leave Act ("FMLA").
-29-
and
24.
Her efforts to exercise her FMLA rights were the
cause of harassment and discrimination.
25.
Ultimately,
HHSC-OIG terminated Ms.
Morris's
employment shortly after she made her first request
for FMLA leave with HHSC-OIG. Ms. Morris has been
unable to afford continued healthcare coverage.
26.
Therefore, HHSC-OIG's actions in denying, harassing,
and terminating Plaintiff's employment are a viola
tion of the Family Medical Leave Act.66
The THHSC argues that it is entitled to summary judgment on
Morris's FMLA claims because Morris received all of the FMLA leave
that she requested,
and because the THHSC had a valid,
retaliatory
for
reason
terminating
her
employment,
nonLs,
insubordination.67 Morris responds that the summary judgment record
contains sufficient evidence to raise genuine issues of material
fact for trial on both her FMLA retaliation and interference
claims.68
1.
Applicable Law
The
FMLA
allows
eligible
employees
working
for
covered
employers to take temporary leave for medical reasons without risk
of losing their employment.
§
2612(a)(l). 69
The
FMLA
See 29 U.S.C.
contains
§
both
2601(b)(1)-(2) and
prescriptive
and
Plaintiff's Original Petition, Docket Entry No. 1-4, p. 6
�� 23-26.
66
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 12-19.
67
68
Plaintiff's Response, Docket Entry No. 26, pp. 14-24.
The FMLA applies to private-sector employers with fifty or
more employees. 29 U.S.C. § 2611(4)(A)(i). An employee who has
(continued...)
69
-30-
proscriptive provisions which, together, seek to meet the needs of
employees and their families and to accommodate the legitimate
interests of employers.
See Hunt v. Rapides Healthcare System,
LLC, 277 F.3d 757, 763 (5th Cir. 2001), abrogated in part on other
grounds by Wheat v. Florida Parish Juvenile Justice Commission, 811
F.3d 702, 706 n.l (5th Cir. 2016).
Prescriptive provisions of the
FMLA allow an eligible employee to take up to twelve weeks of
unpaid leave to care for herself or an eligible family member who
29 U.S.C.
has a serious health condition.
§
2612(a)(1)(C)).
Proscriptive provisions of the FMLA make it "unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under" the FMLA.
U.S.C.
§
2615(a)(1).
29
The FMLA provides a private right of action
for violation of its provisions.
29 U.S.C. § 2617.
Morris asserts FMLA claims for retaliation and interference.70
The difference between the two claims is that an interference claim
merely requires proof that the employer denied the employee rights
under the FMLA,
while a retaliation claim requires proof of
continued)
worked for a covered employer for at least twelve months is
eligible for FMLA leave. 29 U.S.C. § 2611(2)(A). THHSC does not
dispute that it is a covered employer and that Riley was eligible
for FMLA leave.
69 (
•••
Plaintiff's Original Petition, Docket Entry No. 1-4, p. 6
�� 23-26. See also Plaintiff's Response, Docket Entry No. 26,
pp. 14-23 (arguing against summary judgment on retaliation claim),
and pp. 23-24 (arguing against summary judgment on interference
claim).
70
-31-
retaliatory intent. See Devoss v. Southwest Airlines Co., 903 F.3d
487, 491 (5th Cir. 2018) (citing Cuellar v. Keppel Amfels, L.L.C.,
731 F.3d 342, 348-51 (5th Cir. 2013) (Elrod, J., concurring)). See
also Hunt, 277 F.3d at 763-71 (analyzing a plaintiff's claim for
failure
to
award
an
FMLA
entitlement
separately
from
her
retaliation claim). Absent direct evidence FMLA retaliation claims
are analyzed under the burden shifting analysis articulated in
McDonnell Douglas, 93 S. Ct. at 1817.
See Hunt, 277 F.3d at 768
( "The Fifth Circuit applies the McDonnell Douglas framework to
analyze retaliation claims under the FMLA, noting that 'there is no
significant difference between such claims under the FMLA and
similar claims under other anti-discrimination laws.'")
Courts
often cite cases analyzing claims made under other statutes to
which the McDonnell Douglas framework applies.
See Perkins v.
Child Care Associates, 751 F. App'x 469, 474 (5th Cir. 2018) (per
curiam).
To survive summary judgment under this framework Morris
must first establish a prima facie case of retaliation, after which
the burden
shifts to the THHSC to state
a
legitimate,
retaliatory reason for terminating her employment.
states such a reason,
non-
If the THHSC
the burden returns to Morris to adduce
evidence capable of establishing that the THHSC's stated reason is
"merely pretext,
or .
. - although true - is but one of the
reasons for its conduct, another of which was discrimination." Id.
See also Hunt, 277 F.3d at 768.
-32-
2.
Application of the Law to the Undisputed Facts
FMLA Retaliation Claim
(a)
{1}
Morris Establishes a Prima Facie Case.
To establish a prima facie case for FMLA retaliation Morris
must demonstrate that (1) she was protected under the FMLA; (2) she
suffered an adverse employment action; and (3) she was treated less
favorably than a similarly situated employee who had not requested
leave under the FMLA, or the adverse decision was made because she
took FMLA leave. See Hunt, 277 F.3d at 768. See also Perkins, 751
F. App'x at 473 (citing Acker v. General Motors, L.L.C., 853 F.3d
784, 790 (5th Cir. 2017) (quoting Mauder v. Metropolitan Transit
Authority of Harris County, Texas, 446 F.3d 574, 583 (5th Cir.
2006),
cert. denied,
127 S. Ct. 230
(2006))).
"This showing
requires a '"causal link" between the FMLA-protected activity and
the adverse action.'"
Perkins, 751 F. App'x at 473 (citing Acker,
853 F.3d at 790 (quoting Richardson v. Monitronics International,
Inc., 434 F.3d 327, 332 (5th Cir. 2005))).
To establish a causal
link the employee must show that the decision maker knew that the
employee engaged in a protected activity and had a retaliatory
motive.
Id.
The THHSC does not dispute that Morris was protected
under the FMLA.
Instead,
the THHSC argues that Morris cannot
establish that the harassment she experienced constitutes an
adverse action,
or that she was terminated in retaliation for
taking FMLA leave.
-33-
( i)
Harassment
Unlike in the Title VII discrimination context, an adverse
employment action in the retaliation context is not limited to
ultimate employment decisions,
discharge,
promotion,
and
such as hiring,
compensation.
Shreveport, 492 F.3d 551, 558 (5th Cir. 2007)
granting leave,
McCoy
V.
of
City
Instead, the action
can be something that "a reasonable employee would have found
[to be]
materially
adverse"
or,
in other
words,
would
have
"dissuaded a reasonable worker from making or supporting a charge
of discrimination."
Aryain v. Wal-Mart Stores, Texas LP, 534 F.3d
473, 484 (5th Cir. 2008) (quoting White, 126 S. Ct. at 2415)
"The
standard is objective, but 'the significance of any given act of
retaliation will often depend upon the particular circumstances.
Context matters.'"
Porter v. Houma Terrebonne Housing Authority
Board of Commissioners, 810 F.3d 940, 945-46 (5th Cir. 2015).
The THHSC argues that Morris cannot establish a retaliation
claim based on her harassment allegations because, even if true,
the harassment she experienced did not constitute an adverse
employment action. 71
The THHSC argues that
[t]o support her FMLA retaliation claim, Morris alleges
that "Mr. Mayers expressed on several occasions that he
did not believe that Ms. Morris's daughter's health
condition was a 'serious health condition.'" Doc. 1-4 at
112. Morris adds that she "was told that she would not
be allowed to work a schedule that would have allowed her
greater flexibility" and was "compared to a former HHSC71 Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 15-17.
-34-
OIG female employee who had previously been terminated."
Id. at �� 14, 17.
None of these meet the "adverse
employment decision" element of a prima facie retaliation
claim. 72
Morris argues in response that she
has demonstrated that she suffered through constant
questioning of her eligibility to take FMLA leave, being
required to submit her paperwork on multiple times, and
threats of being terminated for taking off time for work
See Exhibit A,
- even though it had been approved.
paras. 20 through 27 and Attachments thereto.
Such
conduct was regular and material enough to dissuade a
reasonable person from making or supporting an allegation
of discriminatory treatment for seeking her rights under
the FMLA. 73
While the Fifth Circuit has held that threats of pay reduction
that were unlikely to come to fruition were not sufficient to
support a retaliation claim because such threats would not dissuade
a reasonable employee from making or supporting a charge of
discrimination and therefore could not constitute a materially
adverse employment action, see Brandon v. Sage Corp., 808 F.3d 266,
271
(5th Cir. 2015),
the Fifth Circuit has acknowledged
"the
possibility that a realistic, drastic pay cut threat might deter
someone
from
supporting
a
discrimination
charge
in
certain
circumstances." Id. & n.4 (citing Cox v. Onondaga County Sheriff's
Department, 760 F.3d 139, 148 (2d Cir. 2014) (employer's "threats
of false report charges .
deterrent
to
would often - even usually - be a
reasonable
discrimination claims");
employees
making
or
supporting
Rivera v. Rochester Genesee Regional
72
Id. at 16.
73
Plaintiff's Response, Docket Entry No. 26, p. 18.
-35-
743 F.3d 11,
Transportation Authority,
reasonable juror could find both that
threatened
[plaintiff]
26
(2d Cir.
2012)
("A
[plaintiff's supervisor]
with the loss of his job, and that this
threat would dissuade a reasonable worker from making or supporting
a charge of discrimination.").
Here, the threats of job loss that
Mayers made to Morris have come to fruition.
A reasonable jury
could therefore conclude that Mayers' threats of job loss were
credible threats of adverse action that would have dissuaded a
reasonable employee in Morris's position from making or supporting
a charge of discrimination.
See Johnson, 916 F.3d 410, 420.
The
court concludes therefore that Morris has satisfied her prima facie
burden
of
citing
evidence
capable
of
establishing
that
the
harassment she experienced constituted a materially adverse action
for purposes of proving her FMLA retaliation claim.
(ii)
Termination of Employment
The THHSC does not dispute that termination of employment is
an adverse action that can support an FMLA retaliation claim.
Instead, asserting that Morris received all of the FMLA leave that
she sought,
the THHSC argues that Morris cannot establish a
retaliation claim based on her termination of employment because
the termination decision was unrelated to the FMLA, and because
Morris cannot show discriminatory intent.74
The THHSC argues
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, pp. 17-18.
74
-36-
Morris also contends that OIG engaged in unlawful
discrimination and retaliation by terminating her
employment "shortly after she made her first request for
FMLA leave with HHSC-OIG." Doc. 1-4 at 11 13, 24-26.
Here Morris relies not on the FMLA requests from January
2015
. but on "plans for taking leave under FMLA"
that she provided to Orlando Mayers in "late April/early
March." Doc. 1-4 at t 15. In a March 31, 2015 email she
requested the following:
FMLA days - Daughter's appointments
April
April
April
April
13
14
23
27
(8-12:30)
(1:30-5)
(2-5)
(8-5)
I have doctor's appointments
April 7 (8-5)
Appx. 023; see also Appx. 031 (approving sick leave on
April 22 for use on April 24).
Morris cannot establish her prima facie FMLA
retaliation case because she cannot show that she was
terminated on May 8, 2015 "because she sought protection
under the FMLA" on March 31.
. Just like her January
FMLA requests, OIG approved Morris's requests to use FMLA
in April. Appx. 088 at 79:3-10, 81:2-5; Appx. 053-054.
The approved FMLA request and termination are also
separated by five weeks.75
Citing Strong v. University Healthcare System, L.L.C., 482 F.3d
802, 808 (5th Cir. 2007), the THHSC argues that "the Fifth Circuit
explicitly rejected 'the notion that temporal proximity standing
alone can be sufficient proof of but for causation' because ' [s]uch
a rule would unnecessarily tie the hands of employers.'" 76
75
Id. at 17.
76
Id. at 17-18.
-37-
To establish the third prong of a prima facie case of
retaliation under the FMLA, Morris need only show that she was
terminated because she took or sought to take FMLA leave. Perkins,
751 F. App'x at 473 (citing Acker, 853 F.3d at 790, and Mauder, 446
F.3d at 583).
Morris does not have to show that the protected
activity is the only cause of her termination. Mauder, 446 F.3d at
583.
See also Richardson, 434 F.3d at 333
(FMLA claims only
require a showing that retaliation was a motivating factor in the
adverse action). Moreover, in Mauder the Fifth Circuit stated that
" [w] hen evaluating whether the adverse employment action was
causally related to the FMLA protection, the court shall consider
the
'temporal
termination."
proximity'
Id.
between
the
FMLA
leave,
and
the
The THHSC's reliance on Strong as support for
its contention that Morris is unable to establish a prima facie
case based on temporal proximity alone is misplaced.
While the
Strong court rejected "the notion that temporal proximity standing
alone can be sufficient proof of but for causation," 482 F.3d at
808, the court recognized that "temporal proximity alone, when very
close, can in some instances establish a prima facie case of
retaliation."
Id.
Morris relies on the temporal proximity between the time she
took FMLA leave and her termination as evidence that the THHSC
terminated her because she took FMLA leave. Morris argues that she
requested to take FMLA leave on multiple dates in April
2015, with the last dates being April 23rd and 27 th •
-38-
Plaintiff suffered an adverse employment [action] (i.e.,
termination) on May 8, 2015, a mere eleven and fifteen
days after the last dates on which she was seeking FMLA
leave. A seventeen-day period between when FMLA leave
was taken and when the adverse employment action occurred
has been recently ruled by a court in this district to be
sufficiently close to satisfy the causation standard of
a prima facie retaliation case. See Garcia v. Penske
Logistics, LLC, 165 F. Supp. 3d 542, 559-60 (S.D. Tex.
2014).
. The Fifth Circuit has even approvingly noted
that a time lapse of up to four months has been found
sufficient to satisfy the causal connection for summary
judgment purposes. See Evans v. City of Houston, 247
F.3d 344, 354 (5 th Cir. 2001).77
Citing Shannon v. Henderson, 275 F.3d 42 (5th Cir. 2001),
Morris
argues that
it is without dispute that Defendant's decision-makers
were aware of Ms. Morris' requests and attempts to use
FMLA leave. Both Ms. Pietrzyk, the OIG's Director of
Investigations, and Mr. Mayers, Plaintiff's direct
supervisor,
acknowledged
throughout
their
sworn
deposition testimony that they were aware of Ms. Morris'
Furthermore, they had
requests for FMLA leave.
responded to Plaintiff's complaints about her perceived
harassment and interference with her use of FMLA.
The Fifth Circuit has noted than an "employer's awareness
of an employee's protected activity might be sufficient
to establish the 'causal link' element of a prima facie
case of retaliation." 7 8
The Supreme Court has recognized that "[t] he cases that accept
mere
temporal
proximity
between
an
employer's
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
Clark County School District v. Breeden, 121 S.
'very
close.'"
Ct. 1508, 1511
77
Plaintiff's Response, Docket Entry No. 26, pp. 16-17.
78
Id. at 17.
-39-
(2001)
(per curiam).
See also
Swanson
v.
General Services
Administration, 110 F.3d 1180, 1188 (5th Cir.), cert. denied, 118
S. Ct. 366 (1997) (close timing between an employee's protected
activity and an adverse action may provide causal connection needed
to establish a prima facie case).
Morris took intermittent FMLA
leave in April of 2015, and the THHSC terminated her employment on
May 8, 2015, just over one week after the last day of her FMLA
leave. The close temporal proximity between Morris's exercise of
FMLA leave and her termination, coupled with Mayers' and Pietrzyk's
knowledge of her protected activity, is sufficient to establish the
causation element of a prima facie case of FMLA retaliation.
See
Richard v. Cingular Wireless LLC, 233 F. App'x 334, 338 (5th Cir.
2007) (two-and-one-half month period between protected activity and
adverse employment action sufficient to establish causal connection
needed for a prima facie case).
(2)
The THHSC States Legitimate, Non-Retaliatory
Reasons for Terminating Morris's Employment.
Citing Strong, 482 F.3d at 808, for the recognition that
"[e] mployers are sometimes forced to remove employees who are
performing poorly, engaging in improper work conduct, or severely
disrupting the workplace," 79 the THHSC argues that even if Morris
could establish a prima facie case, it is still entitled to summary
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, p. 18.
79
-40-
judgment on her FMLA retaliation claim because it terminated her
for legitimate, nondiscriminatory reasons. 80 The THHSC argues that
[a]mong these are the following:
On 04/29/2015 while at the Houston OIG office located at
10103 Fondren, Lena Morris became insubordinate after
being told that EBT members were expected to work late to
complete required ADH training. Lena Morris yelled at
supervisor (Orlando Mayers), shouting out loud that she
was leaving the training and that she would just have to
be written up. This incident occurred amongst the entire
EBT group present. This is a violation according to the
Health and Human Services Human Resources Manual ( Chapter
4 Employee Conduct) (1, 2, 3, and 6). 81
The Fifth Circuit has recognized poor performance and improper
conduct including disruptiveness as legitimate,
non-retaliatory
reasons for terminating an employee's employment.
McArdle v. Dell
Products,
L. P.,
293
F.
App'x
331,
340
(5th
Cir.
2008).
Accordingly, by citing evidence that Morris was insubordinate on
April 29,
2015,
the THHSC has articulated a legitimate,
retaliatory reason for terminating her employment.
non-
The burden
shifts to Morris to present evidence showing that the THHSC' s
stated reason for terminating her employment was a pretext to cover
up an underlying retaliatory motive against her for taking FMLA
leave.
Perkins, 751 F. App'x at 474.
(3)
Morris Raises a Fact Issue as to Causation
Under the McDonnell Douglas burden-shifting framework, because
the THHSC has produced evidence of a legitimate, nondiscriminatory
s or d
81
.
Id. at 18.
-41-
reason for the adverse employment action, Morris must introduce
evidence that would enable a reasonable jury to find
either (1) that the defendant's reason is not true, but
is instead a pretext for discrimination
(pretext
alternative); or (2) that the defendant's reason, while
true, is only one of the reasons for its conduct, and
another motivating factor is the plaintiff's protected
characteristic (mixed-motives alternative).
Rachid, 376 F.3d at 312 (internal quotation and alteration marks
omitted).
Morris "may show pretext either through evidence of
disparate treatment or by showing that
[the THHSC' s]
explanation is false or unworthy of credence."
TV, 850 F.3d 237, 242 (5th Cir. 2017)
proffered
Caldwell v. KHOU
(quoting Jackson v. Cal
Western Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010))
If
Morris is successful in meeting her burden, the THHSC may still
show that it is entitled to summary judgment under the mixed-motive
theory by providing sufficient evidence to establish as a matter of
law that it would have terminated Morris's employment despite its
retaliatory motive.
final
burden
defense."'
'is
Richardson, 434 F.3d at 336.
effectively
that
of
proving
"The employer's
an
affirmative
Id. at 333 (quoting Machinchick v. PB Power, Inc., 398
F.3d 345, 355 (5th Cir. 2005)). See also Ion v. Chevron USA, Inc.,
731 F.3d 379,
389-391
(5th Cir. 2013)
(discussing mixed-motive
analysis in the context of an FMLA case)
Pretext Alternative
(i)
Morris may establish pretext "by showing that the [THHSC's]
proffered
explanation
is
false
-42-
or
'unworthy
of
credence.'"
Jackson, 602 F.3d at 379 (citing Laxton v. Gap Inc., 333 F.3d 572,
578 (5th Cir. 2003)).
Whether summary judgment is appropriate
"depends on numerous factors,
including
'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."
Piper v. Veneman, 183 F. App'x 407, 410 (5th Cir. 2006) (citing
Reeves, 120 S. Ct. at 2109).
Morris
has
cited
evidence
capable
of
showing
by
a
preponderance of the evidence that the THHSC's non-retaliatory
reason for terminating her employment is pretextual for several
reasons.
First,
Mayers' deposition testimony raises factual
questions as to whether Morris's insubordination is the actual
reason she was terminated. In pertinent part Mayers testified that
he did not recall Morris's specific conduct on April 29, 2015, and
did not recall Morris ever being insubordinate or disruptive, or
engaging in conduct that would have given him reason to discipline
her. 82
Mayers testified that he would not have taken Morris's
April 29, 2010, outburst as insubordinate, disruptive, or worthy of
termination. 83
Mayers also testified that he and Pietrzyk had
Plaintiff's Response, Docket Entry No. 26, pp. 20-21 (quoting
Oral Deposition of Orlando Trenell Mayers ("Mayers Deposition"),
pp. 137:21-138:10, Exhibit C, Docket Entry No. 26-3, pp. 8-9). See
also Mayers Deposition,
pp. 137:21-138:10,
Exhibit 20 to
Defendant's MSJ, Docket Entry No. 22-2, p. 195.
82
Mayers Deposition, p. 139:11-21, Exhibit 20 to Defendant's
MSJ, Docket Entry No. 22-2, p. 195.
83
-43-
discussed Morris's FMLA leave more than once, Pietrzyk had asked
him why Morris was taking off so much time, and that Pietrzyk made
the decision to terminate Morris but directed him to deliver the
notice to Morris on short notice. 84
surprised by
answered,
Moreover, when asked if he was
Pietrzyk's decision to terminate Morris,
Mayers
"No, not really because the conversations up to that
point was that
her documentation was to get rid of her." 85
Second, Morris was terminated a very short time after she took
FMLA leave.
While Morris asked for and apparently received
permission to work flex schedules for certain weeks in January and
February of 2015, and she took leave to care for her seriously ill
daughter on March 3 and 18, 2015, the leave records for Morris that
the THHSC has submitted do not show that Morris took any leave in
January, February, or March identified as FMLA leave.
days on Morris's leave record identified as
April 13, 14, 23-24, and 27. 86
FMLA
The only
leave are
Morris was terminated on May 8,
2015, less than ten days after the last day she took FMLA leave.
Third,
the THHSC's contention that Morris was terminated for
insubordination conflicts with the notice of termination that
Morris received
on May 8,
2015,
stating
that
"[a]fter much
Id. at 81:1-83:2, Exhibit 20 to Defendant's MSJ, Docket Entry
No. 22-2, p. 181.
84
Id. at 83:6-10, Exhibit 20 to Defendant's MSJ, Docket Entry
No. 22-2, p. 181.
85
86
Exhibit 13 to Defendant's MSJ, Docket Entry No. 22-2, p. 55.
-44-
deliberation, it has been determined that you are not suited for
the assigned Investigator VI position. " 87
A reasonable jury could
conclude from this evidence that the THHSC's stated reason for
terminating Morris's employment is a pretext for retaliation for
having taken FMLA leave.
(ii)
Mixed-Motive Alternative
The THHSC argues that Morris cannot prevail under a mixed
motive theory because she cannot show that her FMLA leave motivated
OIG's termination decision, and OIG would have terminated Morris's
probationary employment regardless of her use of FMLA leave.
the
same
reasons
stated
above
in
the
"Pretext
For
Alternative"
analysis, the court concludes that Morris has presented sufficient
evidence to create fact issues as to whether the exercise of her
FMLA rights was at least a motivating factor in the THHSC's
decision to terminate her employment.
The THHSC argues that it is nevertheless entitled to summary
judgment because it would have terminated Morris anyway, despite
any retaliatory animus.
Asserting that OIG does not tolerate
insubordination, and that approximately two months after Morris was
terminated, Mayers, too, was terminated for insubordination, the
THHSC
argues
that
the
same
decision
to
terminate
Morris's
employment would have been made irrespective of her leave usage. 88
87
Exhibit 12 to Defendant's MSJ, Docket Entry No. 22-2, p. 53.
Defendant's Reply, Docket Entry No. 27, p. 19 (citing Mayers
Deposition, pp. 123:21-124:21, Exhibit 20 to Defendant's MSJ,
Docket Entry No. 22-2, p. 191)
88
-45-
Mayers' deposition testimony that he was subsequently discharged
for insubordination is not sufficient to carry the THHSC's burden,
at
least
on
summary
judgment,
that
Morris
would
terminated irrespective of her use of FMLA leave.
have
been
Therefore,
Defendant's MSJ on Morris's FMLA retaliation claim will be denied.
(b)
FMLA Interference Claim
The FMLA provides,
in relevant part,
that "[i] t shall be
unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right" provided by the
29 U.S.C.
FMLA.
§
2615(a)(l).
To establish a prima facie
interference case, Morris must show that (1) she was an eligible
employee, (2) the THHSC was an employer subject to the FMLA's
requirements, (3) she was entitled to leave, (4) she gave proper
notice of her intention to take FMLA leave, and (5) the THHSC
denied her the benefits to which she was entitled under the FMLA.
See
Devoss, 903 F.3d at 490 (citing Caldwell, 850 F.3d at 245).
Asserting that "Morris does not deny that she received all
leave
requested, " 89
the
THHSC
argues
that
"Morris's
FMLA
interference claim must be dismissed because Morris was not
deterred from taking FMLA [leave] and she was not denied any FMLA
Defendant's Brief in Support of MSJ, attached to Defendant's
MSJ, Docket Entry No. 22-1, p. 14 (citing Morris's Leave Record,
Exhibit 13, Docket Entry No. 22-2, pp. 55-56, and Morris
Deposition, pp. 79:3-10; 81:2-5, Exhibit 18 to Defendant's MSJ,
Docket Entry No. 22-2, p. 90).
89
-46-
leave to which she was entitled." 9 °
Citing 29 C.F.R. § 825.300(b),
Morris argues that her FMLA interference claim cannot be dismissed
as a matter of law because
[s]ummary judgment evidence establishes that [she] was
not told within the timeframe required by law that her
application for FMLA eligibility was going to be denied.
. It took Defendant more than two months before it
notified [her] that she was not qualified.
In addition, Defendant required Plaintiff to submit
her FMLA paperwork on multiple occasions though it was
not necessary and was not required by law.
This evidence shows that Defendant interfered with
Plaintiff's rights under the FMLA. 91
At issue is whether the THHSC denied Morris benefits to which
she was entitled under the FMLA.
Morris asked for and apparently
received permission to work flex schedules for certain weeks in
January and February of 2015 in lieu of taking FMLA leave.
Morris
has cited evidence showing that on January 14, 2015, she asked for
FMLA leave to care for her seriously ill daughter on March 3 and
18, 2015, 92 but while the leave records for Morris that the THHSC
has submitted show that she took leave on these days, they also
90
Id. at 15.
Plaintiff's Response, Docket Entry No. 26, pp. 23-24 (citing
inter alia Campos Garza Deposition, Exhibit D to Plaintiff's
Response, pp. 16:14-17 (acknowledging that the THHSC took over two
months to respond to Morris's initial request for FMLA leave) ;
p. 193:8-16 (stating that she did not know if Morris's initial
application for FMLA leave was valid), Docket Entry No. 26-4, pp. 4
and 9).
91
Exhibit B to Plaintiff's Response, Docket Entry No. 26-2,
pp. 11-12.
92
-47-
show that leave was not classified as FMLA leave. 93
Moreover,
Morris has submitted records of text messages showing that Mayers
denied her request to take FMLA leave on March 18, 2015. 94
Morris
has
submitted
evidence
that
contradicts
assertion that she received all of the
requested and was entitled to take.
the
Thus,
THHSC's
FMLA leave that she
The court concludes therefore
that the THHSC is not entitled to summary judgment on Morris's FMLA
interference claim.
V.
Conclusions and Order
For the reasons stated in § III, above,
Plaintiff Lena D.
Morris's Motion for Leave to File Sur-Reply to Defendant's Reply to
Plaintiff's Opposition to the Motion for Summary Judgment (Docket
Entry No. 29) is DENIED as MOOT.
For the reasons stated in § IV.A, above, the court concludes
that THHSC is entitled to summary judgment on Morris's claims for
violation of Title VII; and for the reasons stated in § IV. B,
above, the court concludes that THHSC is not entitled to summary
judgment on Morris's FMLA claims for interference and retaliation.
Accordingly, Defendant's Motion for Summary Judgment (Docket Entry
No. 22) is GRANTED in PART and DENIED in PART.
93
Exhibit 13 to Defendant's MSJ, Docket Entry No. 22-2, p. 55.
Morris Declaration, Exhibit A to Plaintiff's Response, Docket
Entry No. 26-1, p. 5 � 22 (citing Attachment 4, Docket Entry
No. 26-1, pp. 24-30).
94
-48-
The
court
concludes
that
this
case
is
appropriate
for
mediation or a settlement conference before a Magistrate Judge.
If
the parties are not able to settle this action within the next
thirty (30) days, they will provide the court with the name and
contact information of an agreed upon mediator, or a request that
the court refer this case to Magistrate Judge Nancy K. Johnson for
a settlement conference.
Paragraphs 11 and 12 of the Fourth Amended Docket Control
Order (Docket Entry No. 21) are VACATED.
SIGNED at Houston, Texas, on this 8th day of August, 2019.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
-49-
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