Farrar & Ball, LLP et al v. hudson et al
MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
Defendant/Third-Party Plaintiff, §
WESLEY T. BALL, KYLE W.
FARRAR, DAVID ROMAGOSA, JR., §
and RHONDA HERBERT,
March 12, 2018
David J. Bradley, Clerk
FARRAR & BALL, LLP,
CIVIL ACTION NO. H-16-3341
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment [Doc. # 54]
filed by Counter-Defendant Farrar & Ball, LLP (“Farrar & Ball” or the “Firm”) and
Third-Party Defendants Wesley T. Ball, Kyle W. Farrar, David Romagosa, Jr., and
Rhonda Herbert (collectively, “Movants”). Movants seek summary judgment on the
claims asserted by Counter-Plaintiff Nicole Hudson in her Third Amended Answer
and Counterclaims [Doc. # 1-3]. Hudson filed a Response [Doc. # 57], and Movants
filed a Reply [Doc. # 60].
Also pending is Hudson’s “Partial Motion for Summary Judgment” [Doc. # 55].
Hudson seeks summary judgment on her breach of contract claim. Farrar & Ball and
the Third-Party Defendants filed a Response [Doc. # 62]. Hudson neither filed a reply
nor requested an extension of the reply deadline.
The Court has carefully reviewed the record and the applicable legal authorities.
Based on that review, the Court grants the Motion for Summary Judgment filed by
Farrar & Ball and the Third-Party Defendants as to the federal claims. Having
disposed of the federal claims, the Court declines to exercise supplemental jurisdiction
over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). As a result, the
Court denies without prejudice Hudson’s “Partial Motion for Summary Judgment.”
Hudson worked as a paralegal at the Farrar & Ball law firm from January 2013
until March 2016. During most of that time, she worked with Third-Party Defendant
Romagosa, a non-equity attorney at the Firm. See Declaration of Kyle W. Farrar
(“Farrar Decl.”), Exh. A to Motion for Summary Judgment, ¶ 6.
In May 2015, Hudson spoke with Romagosa regarding a referral bonus equal
to 20% of the attorneys’ fees collected on a case. Specifically, Hudson believed she
was entitled to the referral bonus for having referred her daughter’s personal injury
case to the Firm. Romagosa informed Hudson via email that the Firm did not –
indeed, could not – share attorneys’ fees with non-lawyers. In September 2015,
Hudson met with Farrar regarding the 20% bonus. Farrar similarly informed Hudson
that she was not owed a 20% referral fee.
In October 2015, at a Farrar & Ball bowling social event, Farrar suggested a bet
on the bowling scores. Hudson responded that she was just going to play one game,
win the money, and leave. Farrar responded, “Nicole, you can’t beat me at nothing
you broke ass bitch.” When he realized that Hudson was offended, Farrar said, “you
know I’m just playing with you” and apologized to Hudson. Farrar later discussed the
incident with Debbie Brooks, the Firm’s bookkeeper, to inquire whether anyone else
at the bowling event had been offended by the comment. Brooks responded that
nobody else was offended, and Farrar stated “If I only offend one I call that a victory.”
Hudson testified in her deposition that she began looking for a new job after the
bowling event. See Deposition of Nicole Hudson (“Hudson Depo.”), Exh. B to
Motion for Summary Judgment, p. 13.
Also in October 2015, Farrar & Ball learned that a prior bookkeeper credited
sick leave and vacation days toward time worked when calculating overtime pay.
Farrar revised the Firm’s practice to ensure that only hours actually worked by the
employee were credited toward determining entitlement to overtime compensation.
Hudson complained to Farrar about this decision. Farrar believed that Hudson’s work
performance and attitude declined after the change regarding overtime compensation.
Other employees also complained to Farrar that Hudson was upset about the change.
See Farrar Decl., ¶ 14.
In February 2016, Farrar was continuing to receive reports from employees that
Hudson was saying negative things about the Firm, complaining specifically about the
change to the overtime policy. See id., ¶ 16. On February 16, 2016, Farrar sent an
email informing Romagosa that he had decided to terminate Hudson’s employment.
The next day, February 17, 2016, Farrar concluded – based on a comparison of
time records and parking garage records for Hudson and two Caucasian
employees – that Hudson claimed to have worked hours that she did not actually
work. See id., ¶ 17.
In late February or early March 2016, Farrar & Ball employee Gary West gave
Hudson emails written by Romagosa. See Hudson Depo. at p. 154. Emails dated
September 14 and September 17, 2013, were written following Romagosa’s attack by
an African-American, an attack that resulted in Romagosa’s hospitalization. These
emails used a racial slur to refer to the attacker. In another email dated February 18,
2014, Romagosa used a racial slur in an email string regarding the hiring of someone
named “Vera.” These emails do not relate to Hudson or her employment with
Farrar & Ball.
Hudson alleges that on February 17, 2016, Romagosa referred to her under his
breath using a racial slur. See id. at 77; see also EEOC Charge, Exh. 6 to Hudson’s
Response [Doc. # 59], p. 2.
In early March 2016, Farrar & Ball paralegal (and Third-Party Defendant)
Rhonda Herbert informed Hudson that she (Hudson) was going to be fired and the two
paralegals discussed Hudson filing a Charge of Discrimination. See Hudson Depo.
at p. 175. On March 3, 2016, following this conversation, Hudson filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”).
Farrar & Ball terminated Hudson’s employment on March 11, 2016.
On June 7, 2016, Farrar & Ball sued Hudson in Texas state court for tortious
interference and civil theft.1 In Hudson’s Third Amended Answer and Counterclaims,
Hudson asserted state law claims and, for the first time, asserted claims under 42
U.S.C. § 1983, as well as race discrimination, hostile work environment, and
retaliation claims under 42 U.S.C. § 1981 and Title VII. Movants removed the case
to federal court. After the close of discovery, the pending motions were filed. The
motions have been briefed and are now ripe for decision.
Neither of the pending summary judgment motions addresses Farrar & Ball’s state
law claims against Hudson.
STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of
summary judgment against a party who fails to make a sufficient showing of the
existence of an element essential to her case and on which she will bear the burden at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710 F.3d
587, 594 (5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc). Summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699
F.3d 832, 839 (5th Cir. 2012). The moving party, however, “need not negate the
elements of the nonmovant’s case.” Coastal Agric. Supply, Inc. v. JP Morgan Chase
Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005)). The moving party may meet its burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.”
Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citing Celotex, 477 U.S. at
323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004);
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its resolution could affect the outcome of
the action.” Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir.
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Conclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.’” Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th
Cir. 2014) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002)). Instead, the
nonmoving party must present specific facts which show “the existence of a genuine
issue concerning every essential component of its case.” Firman v. Life Ins. Co. of N.
Am., 684 F.3d 533, 538 (5th Cir. 2012) (citation and internal quotation marks
omitted). In the absence of any proof, the court will not assume that the non-movant
could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence, and
must disregard all evidence favorable to the moving party that the jury is not required
to believe. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing
Reaves Brokerage Co., 336 F.3d at 412-13). The Court is not required, however, to
accept the nonmovant’s conclusory allegations, speculation, and unsubstantiated
assertions which are either entirely unsupported, or supported by a mere scintilla of
evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413); accord, Little, 37 F.3d at
1075. Affidavits cannot preclude summary judgment unless they contain competent
and otherwise admissible evidence. See FED. R. CIV. P. 56(c)(4); Love v. Nat’l Med.
Enters., 230 F.3d 765, 776 (5th Cir. 2000).
Finally, “[w]hen evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court.” Malacara, 353 F.3d
at 405. “Rule 56 does not impose upon the district court a duty to sift through the
record in search of evidence to support a party’s opposition to summary judgment.”
Id. (internal citations and quotations omitted); Williams v. Valenti, 432 F. App’x 298,
302 (5th Cir. July 7, 2011).
SECTION 1983 CLAIM
It has long been, and continues to be, the clearly-established law that in order
to state a claim under § 1983, a plaintiff must demonstrate that the alleged deprivation
was committed by a person acting under color of state law. See, e.g., Adickes v. S.H.
Kress & Co., 398 U.S. 144, 150 (1970); see also Filarsky v. Delia, 566 U.S. 377, 383
(2012); Surratt v. McClarin, 851 F.3d 389, 392 (5th Cir. 2017).
Hudson has failed to present evidence that any Counter-Defendant or ThirdParty Defendant was acting under color of state law. As a result, Movants are entitled
to summary judgment on Hudson’s § 1983 claim.
SECTION 1981 AND TITLE VII CLAIMS
Hudson asserts race discrimination, hostile work environment, and retaliation
claims under both 42 U.S.C. § 1981 and Title VII. Claims under Title VII and § 1981
are analyzed under the same legal standard.2 See Turner v. Kansas City S. Ry. Co.,
One exception is that an employee can assert a § 1981 claim only against a defendant
675 F.3d 887, 891 (5th Cir. 2012), as revised (June 22, 2012); see also Willis v. Cleco
Corp., 749 F.3d 314, 317 (5th Cir. 2014) (retaliation claim); Glaskox v. Harris Cty.,
Tex., 537 F. App’x 525, 528 (5th Cir. Aug. 2, 2013) (race discrimination claim); Vital
v. Nat’l Oilwell Varco, 2014 WL 4983485, *13 (S.D. Tex. Sept. 30, 2014) (hostile
work environment claim). As a result, the Court will not address the employment
claims under § 1981 and Title VII separately.3
For race discrimination and retaliation claims, the familiar McDonnell Douglas
framework applies. See McDonnell Douglas Corp., v. Green, 411 U.S. 792 (1973).
who exercises supervisory authority over the employee. This exception is based on
“§ 1981’s focus on the right to contract and the contractual relationship[, which]
limits § 1981 non-employer liability to ‘those who have authority to act on behalf of
the employer in making and enforcing the employer’s contracts.’” Miller v. Wachovia
Bank, N.A., 541 F. Supp. 2d 858, 865 (N.D. Tex. 2008) (quoting Hicks v. IBM, 44 F.
Supp. 2d 593, 597 (S.D.N.Y. 1999)). In this case, Herbert was a paralegal co-worker.
Although Hudson performed work for Romagosa and he had the authority to assign
her work, the evidence in uncontroverted that he lacked authority regarding
employment decisions such as compensation or firing. As a result, Herbert and
Romagosa are entitled to summary judgment on Hudson’s § 1981 claims on this basis
An “employer” is defined for purposes of Title VII as having at least 15 employees.
See 42 U.S.C. § 2000e(b). This is an element of Hudson’s Title VII claims, not a
jurisdictional requirement. See Arbaugh v. Y & H Corp., 546 U.S. 500, 504 (2006);
StarTran, Inc. v. Occupational Safety & Health Review Comm’n, 290 F. App’x 656,
663 (5th Cir. Aug. 11, 2008). In the Joint Discovery/Case Management Plan [Doc.
# 7], Farrar & Ball asserts that it is not an “employer” for purposes of Hudson’s Title
VII claims because it employed only 11 employees. In his Declaration, Farrar states
that the Firm has never employed more than fifteen persons. See Farrar Decl., ¶ 2.
Movants do not, however, seek summary judgment on the Title VII claims on this
The plaintiff must first establish a prima facie case. See Brooks v. Lubbock Cty. Hosp.
Dist., 373 F. App’x 434, 436 (5th Cir. Apr. 12, 2010). If the plaintiff establishes a
prima facie case, the burden of production shifts to the employer to articulate a
legitimate, non-discriminatory (or non-retaliatory) explanation for its decision. See
id. “If the employer provides such an explanation, the inference of discrimination
falls away and the burden shifts back to the employee to demonstrate the explanation
is a mere pretext for discrimination or retaliation.” Id. “While the ultimate burden of
proving discrimination remains with the plaintiff throughout the case, within the
context of a summary judgment motion, the question is not whether the plaintiff
proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding
pretext.” Bright v. GB Bioscience Inc., 305 F. App’x 197, 203 (5th Cir. Dec. 15,
2008) (citing Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th Cir.
Race Discrimination Claim
Prima Facie Case.– To establish a prima facie case of race discrimination
through indirect evidence,4 Hudson must demonstrate that she (1) is a member of a
Hudson argues in her Response that she has direct evidence of race discrimination,
specifically racial slurs and abusive language. Workplace comments are considered
direct evidence of discrimination only if they are “(1) related to the protected class of
persons of which the plaintiff is a member, (2) proximate in time to the complained-of
adverse employment decision, (3) made by an individual with authority over the
protected class; (2) was qualified for her position at the Firm; (3) was discharged or
suffered some adverse employment action; and (4) either was replaced by someone
outside the protected class or was otherwise treated less favorably than other similarly
situated employees outside the protected class. See Morris v. Town of Indep., 827
F.3d 396, 400 (5th Cir. 2016). It is undisputed that Hudson, an African-American, is
a member of a protected class under § 1981 and Title VII. It is also undisputed that
Hudson suffered an adverse action when her employment at the Firm was terminated.
Indeed, Movants in their Motion for Summary Judgment do not challenge Hudson’s
ability to establish a prima facie case.
Movants’ Articulated Non-Discriminatory Reason.– Movants state, with
supporting evidence, that Farrar decided by February 16, 2016, to terminate Hudson’s
employment because he perceived that she had a bad attitude. Farrar believed that
Hudson’s work performance and attitude declined after the Firm changed its policy
employment decision at issue, and (4) related to the employment decision at issue.”
Moore v. United Parcel Serv., Inc., 150 F. App’x 315, 317-18 (5th Cir. Oct. 4, 2005)
(citing Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir.
2000)). The only alleged comment by an individual with authority over the decision
to terminate Hudson’s employment was the “If I only offend one” comment by Farrar
in October 2015 after the bowling event. This comment was not related to Hudson’s
race and was made four months before the decision to terminate her employment.
Additionally, none of the racial slurs and abusive language identified by Hudson
related to the decision to terminate her employment. As a result, Hudson has not
presented direct evidence of race discrimination.
regarding overtime compensation. Other employees at the Firm complained to Farrar
that Hudson was upset about the change and was saying negative things about the
Firm. Based on his perception that Hudson had a bad attitude and was communicating
her negativity to other Firm employees, Farrar decided on February 16, 2016, to
terminate Hudson’s employment. This satisfies Movants’ burden to articulate a
legitimate, non-discriminatory reason for the decision to terminate Hudson’s
Pretext.– Hudson has the burden to present evidence of pretext. “When
evaluating pretext, the focus is on the employer’s motivation for the adverse
employment action, not whether the employer acted wisely or based its decision on
an accurate understanding of the facts.” Plumbar v. S. Texas Coll. of Law, 2017
WL 2844030, *4 (S.D. Tex. July 3, 2017). Title VII does not require objectively
fair-minded or well-reasoned business decisions and, instead, requires only that
employers refrain from making business decisions on a statutorily prohibited basis.
See id. (citing LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir.
2007)). It is not sufficient that a plaintiff present evidence that raises a genuine issue
of material fact regarding whether the employer’s decision to take an adverse
employment action against her was good business, or whether the employer was
wrong about the underlying facts. See id. “The question is whether the employer had
a good-faith belief that the facts that motivated the adverse action were true and
warranted the action.” Id. (citing Jackson v. Cal-W. Packaging Corp., 602 F.3d 374,
379 (5th Cir. 2010)).
Hudson has not presented evidence to raise a genuine issue of material fact
regarding pretext. Indeed, in her Response, Hudson does not address the “legitimate,
non-discriminatory reason” Movants articulate in their Motion for Summary
Judgment. Instead, Hudson argues that the “allegedly ‘non-discriminatory reason’ for
termination (stealing time)” was a pretext because she did not steal time from the
Firm.5 See Hudson Response, pp. 32-34.
Conclusion on Race Discrimination Claim.– Movants have articulated a
legitimate, non-discriminatory reason for the decision to terminate Hudson’s
employment as a paralegal at the Firm. Hudson has failed to present evidence that
raises a genuine issue of material fact regarding whether the articulated reason is a
The Firm has stated that it believed the discrepancies between Hudson’s time records
and the parking garage records provided an additional reason to terminate her
employment. Hudson’s argument and evidence regarding the discrepancies merely
raise a genuine issue of material fact regarding whether the Firm was wrong about the
facts underlying its belief that Hudson was falsifying her time records. The relevant
issue, however, is whether the Firm had a good-faith belief that Hudson was falsifying
time records and a good-faith belief that the facts supporting that belief were true and
warranted her discharge. See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379
(5th Cir. 2010); Plumbar v. S. Texas Coll. of Law, 2017 WL 2844030, *4 (S.D. Tex.
July 3, 2017).
pretext for unlawful race discrimination. As a result, Movants are entitled to summary
judgment on Hudson’s race discrimination claim.
Hostile Work Environment Claim
To establish a prima facie case of a racially hostile work environment, Hudson
must present evidence that: “(1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment was based on race; (4) the
harassment affected a term, condition, or privilege of employment; and (5) the [Firm]
knew or should have known of the harassment and failed to take prompt remedial
action.” Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist., 2017 WL
5325807, *4 (5th Cir. Nov. 13, 2017) (citing Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir. 2002)). Where, as here, the claim is that a supervisor harassed the employee,
the plaintiff need not satisfy the fifth element. See Caldwell v. Lozano, 689 F. App’x
315, 322 (5th Cir. May 12, 2017).
Hudson has satisfied the first element of her prima facie case. It is undisputed
that Hudson, an African-American, is a member of a protected class.
The second and third elements require evidence that Hudson was subjected to
unwelcome harassment and that the unwelcome harassment was based on her race.
In the hostile work environment section heading of Hudson’s Response, she identifies
multiple acts of harassment on which she bases her claim, although she does not
discuss most of the incidents in the text of her Response. She identifies Farrar & Ball
filing a lawsuit against her and confirming information regarding the lawsuit to the
legal publication Law360. Hudson mentions “photographing her” which apparently
refers to an incident Hudson mentioned earlier in her Response that “photographs
were taken of [Hudson] in her religious attire.” See Hudson Response, p. 13. She
mentions only summarily “demeaning and berating conduct of Romagosa.” There is
no evidence that suggests any of these events was based on Hudson’s race. Indeed,
her allegation appears to suggest that Hudson was photographed because of her
religious attire, not because of her race. “Poor treatment without more is not sufficient
to show harassment based on race,” even if the employee believes race was the
motivating factor for the poor treatment. See Eaton-Stephens v. Grapevine Colleyville
Indep. Sch. Dist., 2017 WL 5325807, *4 (5th Cir. Nov. 13, 2017).
Hudson relies heavily on the comment by Farrar following the October 2015
bowling event, when Farrar stated “If I only offend one I call that a victory.” Hudson
argues that the comment was racist because “one” referred to African-Americans. The
uncontroverted evidence regarding the context of the statement, however, refutes
Hudson’s argument. Farrar was discussing the incident with Debbie Brooks, the
Firm’s bookkeeper, to inquire whether any other Firm employee had been offended
by Farrar’s “broke ass bitch” comment. In this context, it is clear that Farrar’s
comment related to “one” employee. Hudson’s unsupported speculation regarding
Farrar’s comment does not raise a fact dispute regarding whether the comment was
based on Hudson’s race.
Hudson relies also on the emails written by Romagosa. Hudson cites emails
dated September 14 and September 17, 2013, in which Romagosa uses a racial slur
to describe an African-American who attacked him, resulting in Romagosa’s
hospitalization. Hudson also cites an email dated February 18, 2014, in which
Romagosa uses a racial slur in an email string regarding the hiring of someone named
“Vera” who “got 290k.” See Email, Exh. 12 to Hudson Response. These emails do
not constitute harassment of Hudson. They were not written to or sent to Hudson by
anyone at the Firm, and they do not relate to Hudson or her employment. Indeed,
Hudson would not have been aware of their existence except that a co-worker gave
her copies of them.
Hudson alleges also that on February 17, 2016, Romagosa referred to her under
his breath using a racial slur. This clearly constitutes unwelcome harassment based
on Hudson’s race. As a result, Hudson has presented evidence of this single incident
of race-based harassment by Romagosa.
With reference to the fourth element of a prima facie case of a racially hostile
work environment, harassment affects a “term, condition, or privilege of employment”
only if it is “sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. (citing Hernandez v.
Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)).
“A hostile work
environment exists when the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Barkley v.
Singing River Elec. Power Ass’n, 433 F. App’x 254, 257 (5th Cir. July 19, 2011)
(citing Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)). To have
an actionable claim, Hudson “must subjectively perceive the harassment as
sufficiently severe or pervasive, and this subjective perception must be objectively
reasonable.” See Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003) (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)). Relevant factors regarding whether
conduct is “severe or pervasive” include “the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and whether it
unreasonably interferes with an employee’s work performance.” Frank, 347 F.3d at
138; see also Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 434 (5th Cir. 2005).
In this case, Hudson has presented evidence of a single incident of race-based
harassment – the racial slur used by Romagosa on February 17, 2016. This comment,
while unquestionably offensive, was a single incident and was not physically
threatening or humiliating. Indeed, Hudson stated in her EEOC Charge that the
comment was made by Romagosa under his breath. There is no evidence that the
comment unreasonably interfered with Hudson’s work performance, particularly since
it was allegedly made the day after Farrar decided to terminate Hudson’s employment.
Hudson has failed to present evidence that raises a genuine issue of material fact
in support of her racially hostile work environment claim. See, e.g., Moore v. United
Parcel Serv., Inc., 150 F. App’x 315, 319 (5th Cir. Oct. 4, 2005) (a few racial slurs
from supervisors was insufficient to create a hostile work environment). As a result,
Movants are entitled to summary judgment on this claim.
“An employee establishes a prima facie case for unlawful retaliation by proving
(1) that she engaged in activity protected by Title VII [or § 1981], (2) that an adverse
employment action occurred, and (3) that a causal link existed between the protected
activity and the adverse employment action.” Rayborn v. Bossier Par. Sch. Bd., 881
F.3d 409, 415 (5th Cir. 2018) (internal quotations and citation omitted); Willis v.
Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014). A retaliation claim requires “proof
that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 360 (2013). Therefore, to satisfy the “causal link” requirement of a
retaliation claim, the plaintiff must show that she would not have suffered the adverse
employment action but for having engaged in protected activity. See Standley v.
Rogers, 680 F. App’x 326, 327 (5th Cir. Mar. 10, 2017). “[T]emporal proximity alone
is insufficient to prove but for causation.” United States ex rel King v. Solvay Pharm.,
Inc., 871 F.3d 318, 334 (5th Cir. 2017).
Hudson has presented evidence that she engaged in protected activity under
Title VII when she filed her Charge of Discrimination with the EEOC on March 3,
2016. She has also presented evidence that she suffered an adverse action when her
employment at the Firm was terminated on March 11, 2016. Hudson, however, has
failed to present evidence that raises a genuine issue of material fact regarding the
causal connection between her EEOC filing and her discharge. The evidence is
uncontroverted that Farrar decided on February 16, 2016, to fire Hudson. The
evidence is further undisputed that Farrar advised Romagosa by email that same day
of his decision to terminate Hudson’s employment. Hudson admitted during her
deposition that Rhonda Herbert, another paralegal at Farrar & Ball, informed Hudson
before Hudson filed her EEOC Charge of Discrimination that the Firm was going to
fire her. See Hudson Depo. at p. 175. Because Farrar made the decision to fire
Hudson before he knew about her EEOC Charge, indeed before she filed it, Hudson
has not shown that “but for” the EEOC Charge she would not have been fired by the
Firm. See, e.g., Wiley v. Am. Elec. Power Serv. Corp., 287 F. App’x 335, 339 (5th
Cir. July 17, 2008); Earle v. Aramark Corp., 247 F. App’x 519, 524 (5th Cir. Sept. 12,
In her Response to the Motion for Summary Judgment, Hudson identifies a
December 11, 2015 email to Romagosa as protected activity. See Response, p. 26.
Hudson did not identify or include the email as an exhibit to her Response. In her
deposition, Hudson admitted that she never complained about race discrimination to
Farrar or Ball, the equity partners of the Firm. See Hudson Depo., p. 165. She further
admitted that the email to Romagosa did not mention the word “race.” See id. at
Movants are entitled to summary judgment on Hudson’s retaliation claim.
The Court has granted judgment in Movants’ favor on Hudson’s federal claims.
“The general rule is that a court should decline to exercise jurisdiction over remaining
state-law claims when all federal-law claims are eliminated before trial.” Watson v.
City of Allen, Tex., 821 F.3d 634, 642 (5th Cir. 2016) (quoting Brookshire Bros.
Holding v. Dayco Products, Inc., 554 F.3d 595, 602 (5th Cir. 2009)). In this case,
pursuant to 28 U.S.C. § 1367(c)(3) and governing Fifth Circuit authority, the Court
declines to exercise supplemental jurisdiction over the pendent state law claims
asserted by Farrar & Ball and by Hudson. The Court will remand those claims to
Texas state court.
CONCLUSION AND ORDER
Hudson has failed to present evidence that raises a genuine issue of material fact
to support her § 1983 claim, her § 1981 claims of race discrimination, hostile work
environment, and retaliation, or the corresponding Title VII claims. As a result, it is
ORDERED that the Motion for Summary Judgment [Doc. # 54] is GRANTED
as to all pending federal claims. It is further
ORDERED, pursuant to 28 U.S.C. § 1367(c)(3), that the pendent state law
claims are REMANDED to the 129th Judicial District Court of Harris County, Texas.
SIGNED at Houston, Texas, this 12th day of March, 2018.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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