Ihsan v. Weatherford U.S., LP
Filing
30
MEMORANDUM OPINION AND ORDER granting 21 MOTION for Summary Judgment, denying as moot 28 MOTION In Limine (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
May 21, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HAMID IHSAN,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
WEATHERFORD U.S., LP,
Defendant.
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-2546
MEMORANDUM OPINION AND ORDER
Plaintiff, Hamid Ihsan, brings this action against defendant,
u.s.
Weatherford
LP,
1
asserting
for
claims
employment
discrimination in violation of the Civil Rights Act of 1866,
42
u.s.c. §§ 1981-1988 ("§ 1981''), Title VII of the Civil Rights Act
of 1964,
42 U.S.C.
§
2000e-2,
et seq.
("Title VII"),
Commission on Human Rights Act, Texas Labor Code
21.055,
based on race
(South-Asian),
color
§§
and Texas
21.051(1) and
(darker skin color),
national origin (Pakistani-born), and religion (Muslim) . 1
before
the
court
is
("Defendant's MSJ")
Defendant's
Motion
for
Summary
Pending
Judgment
(Docket Entry No. 21), and Defendant's Motions
in Limine (Docket Entry No. 28).
For the reasons set forth below,
Defendant's MSJ will be granted, Defendant's Motions in Limine will
be
denied
as
moot,
and
this
action
will
be
dismissed
with
prejudice.
1
0riginal Complaint and Jury Request
Docket Entry No. 1, p. 2 ~ 7.
("Original Complaint"),
I.
Undisputed Facts
Defendant is a multinational company servicing the oil and gas
industry. 2
In October or November of 2014 defendant's Product Line
Engineering Manager, Michael Jahn,
interviewed plaintiff for the
position of Mechanical Engineer III at defendant's
Kingwood, Texas.
facility in
Following the interviews, Jahn recommended that
plaintiff be hired.
Defendant hired plaintiff, and plaintiff began
working as a Mechanical Engineer III reporting to Jahn in January
of 2015. 3
Plaintiff's on-the-job training for his position as Mechanical
Engineer III consisted of
time that Jahn gave him to complete
online training courses and modules related to defendant's product
lines, use of defendant's internal database (Windchill) and design
software (Creo), and hands-on training provided by other engineers
under Jahn's supervision. 4
On May 15, 2015, Jahn sent plaintiff an email with performance
objectives that included a directive to increase his knowledge of
Windchill by looking into the training courses again and learning
to complete work on his
own,
reminding him that
he needed to
2
Declaration of Pamala Barrick
("Barrick Declaration"),
Exhibit A to Defendant's MSJ, Docket Entry No. 21-2, p. 1 ~ 3.
Id. ~ 4; Oral and Videotaped Deposition of Hamid Ihsan
("Plaintiff's Deposition"), pp. 86:1-20, 101:18-102:13, Exhibit B
to Defendant's MSJ, Docket Entry No. 21-3, pp. 3-5.
3
4
Plaintiff's Deposition, pp. 109:8-112:13, 116:11-119:19,
Exhibit B to Defendant's MSJ, Docket Entry No. 21-3, pp. 8-15.
-2-
complete his assignments in a timely fashion, and advising him to
complete conceptual layouts with raw drawings and waiting to work
out
the
details
until
after
the
conceptual
layout
has
been
approved. 5
On or about May 28, 2015, Jahn met with plaintiff to explain
that draft drawings had to be produced quickly in response to
customer requests,
and
that
details
would be
investigated and
finalized only if the customer accepted the draft drawings. 6
After
this meeting plaintiff understood that Jahn believed there were
areas in which his job performance needed improvement. 7
On June
Improvement
23,
Plan
2015,
Jahn placed plaintiff on a
("PIP"),
and
reviewed
with
Performance
plaintiff
in
the
presence of the defendant's Human Resources Manager, Jodi Andersen,
the performance expectations outlined in the PIP.
several areas of improvement,
The PIP outlined
including the plaintiff's need to
improve the timeliness of his work, his ability to multitask, and
his need not to get caught up on details during a project's initial
5
Id. at 129:24-130:21, 134:14-140:13, pp. 23-31.
See also
Exhibit B-11 to Defendant's MSJ, Docket Entry No. 21-7; and Barrick
Declaration, Exhibit A to Defendant's MSJ, Docket Entry No. 21-2,
p. 2 , 6 ("On or around May 15, 2015, as part of Weatherford's
performance appraisal process, Jahn sent [plaintiff] a performance
appraisal with performance objectives.")
6
Plaintiff's Deposition, pp. 143:14-146:3, Exhibit B to
Defendant's MSJ, Docket Entry No. 21-3, pp. 32-35.
See also
Exhibit B-12 to Defendant's MSJ, Docket Entry No. 21-8.
7
Plaintiff's
Deposition,
pp.
149:19-24,
Defendant's MSJ, Docket Entry No. 21-3, p. 37.
-3-
Exhibit
B
to
stages.
Jahn explained to plaintiff that his performance would be
monitored for the next thirty days, and that thereafter Jahn would
decide the best course of action.
Jahn met with the plaintiff on
a weekly basis to monitor his progress and address concerns. 8
When the PIP expired on July 24, 2015, Jahn extended it for an
additional thirty days,
i.e.,
until August 24,
2015. 9
The PIP
Extension acknowledged that the plaintiff had made improvement, but
stated that more was needed, specifically:
1.
Monitor priorities more closely: Some tasks could
have been done in a different order to better meet
timely expectation. Creating a task overview list
so we can discuss those things more efficiently
would be one way to approach this area.
2.
Follow the guidance you received by the project
engineer: While working on the nForm-whqx project,
you have not yet completed this more complex zone 2
back panel as instructed by the project engineer.
3.
Focus first on the big picture of the project and
then drill down to details.
You are currently
researching the cable clamps for the nForm-whqx.
It would be more effective to start by looking at
the larger back panel and then looking at the
details of the clamps. Adopting this approach will
help move a majority of the work forward in a
timelier manner.
This will also improve project
transparency.
8
Plaintiff's Deposition, pp. 150:1-156:16, Exhibit B to
Defendant's MSJ, Docket Entry No. 21-3, pp. 38-42. See also PIP,
Exhibit B-13 to Defendant's MSJ, Docket Entry Nos. 21-9 and 22-4.
9
Plaintiff's Deposition, pp. 172:24-173:11, Exhibit B to
Defendant's MSJ, Docket Entry No. 21-3, pp. 43-44. See also Oral
Deposition of Pam Barrick ("Barrick Deposition"), p. 108:2-10,
Exhibit 6 to Opposition to Defendant's Motion for Summary Judgment
("Plaintiff's Opposition"), Docket Entry No. 25-6, p. 8.
-4-
Maintaining continuity in these areas is necessary for
you to become a well-accepted team lead and your
performance will be closely monitored in the areas
identified in the plan and described above. 10
The PIP Extension also warned the plaintiff that
improve
may
result
in
further
disciplinary
"[f] ailure to
action
up
to
and
including termination." 11
In mid-August of 2015 plaintiff submitted a written complaint
about
Jahn
alleging,
through
the
inter alia,
(1)
defendant's
internal
complaint
hotline
that Jahn disregarded workplace safety
issues and resented plaintiff for complaining about them,
(2)
that
Jahn made disparaging remarks about Muslim customers who were slow
to respond during the month of Ramadan,
(3)
that Jahn singled him
out because he was a U.S. citizen and Jahn was not,
not give him formal
Creo training,
and
( 5)
(4)
Jahn did
Jahn intentionally
placed him on a PIP during Ramadan out of bias for his religion. 12
In response
plaintiff
to
the
lodged against
complaints
Jahn,
the
of
discrimination that
defendant's
the
Human Resource
10
PIP - Extension, Exhibit B-17 to Defendant's MSJ, Docket
Entry Nos. 21-10 and 22-5.
See also Plaintiff's Deposition,
pp. 175:4-179:17, Exhibit B to Defendant's MSJ, Docket Entry
No. 21-3, pp. 45-49.
11
PIP - Extension, Exhibit B-17 to Defendant's MSJ, Docket
Entry Nos. 21-10 and 22-5.
See also Plaintiff's Deposition,
pp. 188:23-189:2, Exhibit B to Defendant's MSJ, Docket Entry
No. 21-3, pp. 50-51.
12
See also Response to June 23 and July 24, 2015, PIPs,
Exhibit B-21 to Defendant's MSJ, Docket Entry No. 21-11, pp. 3-7.
Plaintiff's Deposition, pp. 208:9-22, Exhibit B to Defendant's MSJ,
Docket Entry No. 21-3, p. 60 (acknowledging that he wrote and
submitted the grievance) .
-5-
Manager, Pamala Barrick, investigated the plaintiff's complaints,
but after meeting with Jahn and several other employees was unable
to substantiate the plaintiff's claims of discrimination. 13
On
September 9, 2015, Barrick reviewed her findings with the plaintiff
and reminded him about the defendant's non-retaliation policy. 14
On September 14,
2015,
Jahn and plaintiff exchanged emails
about drawings that plaintiff had not completed. 15
On
September
28,
2015,
plaintiff's employment. 16
[was]
to terminate"
the
defendant
terminated
the
When Barrick inquired "what the trigger
the plaintiff,
defendant's
Human Resources
Manager, David Dyer, responded, "He failed to meet requirements of
his PIP, plus other circumstances." 17
Jahn died in October of 2015. 18
13
Barrick Declaration, Exhibit A to Defendant's MSJ, Docket
Entry No. 21-2, p. 1 ~ 7. See also Closing Meeting for Listen Up
Case File #67H1154, Exhibit C to Defendant's MSJ, Docket Entry
Nos. 21-13 and 22-7.
14
Id. See also Plaintiff's Deposition, pp. 256:6-22, Exhibit B
to Defendant's MSJ, Docket Entry No. 21-3, p. 76; and Investigation
Closing, Exhibit C to Defendant's MSJ, Docket Entry Nos. 21-13 and
22-7.
15
Plaintiff's Deposition, pp. 256:24-259:9, Exhibit B to
Defendant's MSJ, Docket Entry No. 21-3, pp. 77-79; and Exhibit B-24
to Defendant's MSJ, Docket Entry Nos. 21-12 and 22-6 (emails).
16
Plaintiff's
Deposition,
p.
267:17-19,
Defendant's MSJ, Docket Entry No. 21-3, p. 80.
17
Exhibit
B
to
Barrick Deposition, pp. 110:22-111:20, Docket Entry No. 25-6,
p. 9.
18
Barrick Declaration,
Entry No. 21-2, p. 3 ~ 10.
Exhibit A to Defendant's MSJ,
-6-
Docket
II.
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.
"genuine"
R.
if
Civ.
the
P.
56.
evidence
Disputes about
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
Little v.
of the nonmovant' s case."
1069,
1075
(5th Cir.
1994)
Catrett, 106 S. Ct. 2548,
fails
to meet
this
(en bane)
2553-54
37 F.3d
(quoting Celotex Corp.
(1986)).
initial burden,
regardless of the nonmovant' s
Liquid Air Corp.,
v.
"If the moving party
the motion must be denied,
If,
response."
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.
reviewing
the
evidence
"the
court
must
draw
inferences in favor of the nonmoving party,
credibility
determinations
Sanderson Plumbing Products,
or
weigh
Inc.,
the
120 S.
all
Id.
In
reasonable
and it may not make
evidence."
Ct.
2097,
Reeves
2110
v.
(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."
F.3d at 1075.
-7-
Little, 37
III.
Analysis
Plaintiff alleges that defendant discriminated against him on
the basis of race
(South-Asian),
color
(dark-skinned),
national
origin (Pakistani), and religion (Muslim) in violation of 42 U.S.C.
§
1981, Title VII,
and comparable provisions of the Texas Labor
Code, by placing him on PIPs and terminating his employment, and by
terminating his employment in retaliation for having complained
about discrimination. 19
Defendant argues that it is entitled to
summary judgment on all of plaintiff's claims because plaintiff is
unable to present evidence capable of satisfying the elements for
a prima facie case of discrimination or retaliation and because
plaintiff is unable to present evidence capable of showing that the
legitimate,
non-discriminatory
terminated his employment,
reason
for
which
the
defendant
i.e., poor performance and failure to
meet the expectations for the position he held, was a pretext for
discrimination or retaliation in violation of
the Texas
should
be
Labor Code . 20
denied
Plaintiff argues
because
the
evidence
§
1981, Title VII, or
that Defendant's MSJ
establishes
that
his
supervisor treated him differently than other employees working as
engineers and retaliated against him after he complained about the
supervisor's discriminatory treatment. 21
~~
19
0riginal Complaint, Docket Entry No. 1, pp. 4-11
20
Defendant's MSJ, Docket Entry No. 21, pp. 6-8.
21
Plaintiff's Opposition, Docket Entry No. 25, pp. 6-7.
-8-
20-64.
A.
Applicable Law
The Civil Rights Act of 1866 prohibits race discrimination in
private
and public
contracts.
42
u.s.c.
1981.
§
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.
Code]
2000e-2 (a) (1).
§
is
effectively
"Section 21.051
identical
to
Title
[of the Texas Labor
VII,
its
federal
equivalent, except that Title VII does not protect against age and
disability
School
discrimination."
District
v.
Mission
Garcia,
372
Consolidated
S.W.3d
629,
633
Independent
(Tex.
2012).
Plaintiff may establish claims for employment discrimination and
retaliation in violation of
§
1981,
Title VII,
and
§
21 of the
Texas Labor Code 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 Body by Cook, Inc. v. State Farm Mutual
Automobile Insurance,
denied,
138 S.
claims under
§
Ct.
869 F.3d 381,
1009
( 2018)
492
(Tex.
(5th Cir.
2017),
cert.
("The analysis of discrimination
1981 is identical to the analysis of Title VII
claims."); Specialty Retailers,
490,
386
1996)
Inc. v. DeMoranville,
(per curiam)
933 S.W.2d
("Because one purpose of the
Commission on Human Rights Act is to bring Texas law in line with
federal laws addressing discrimination,
cited as authority.").
federal case law may be
Because plaintiff argues that he has cited
-9-
"sufficient circumstantial evidence" to defeat Defendant's MSJ,
22
the McDonnell Douglas framework applies to his claims.
Plaintiff's
initial
burden
under
the
McDonnell
framework is to establish a prima facie case.
93
Douglas
s. Ct. at 1824.
If plaintiff establishes a prima facie case, the burden shifts to
the defendant to articulate a legitimate, non-discriminatory reason
for
its actions.
The defendant may meet
presenting evidence that would support a
discrimination
employment
and/or
retaliation
If
action.
the
was
defendant
this burden by
finding that unlawful
not
the
meets
cause
this
of
the
burden,
the
plaintiff must adduce evidence that the defendant's articulated
reason
is
false
and
is,
instead,
discrimination and/or retaliation.
merely
Id. at 1825.
a
pretext
for
If plaintiff can
raise a genuine issue of material fact as to pretext, he can avoid
summary judgment.
Plaintiff may also avoid summary judgment on his
discrimination claims by presenting evidence that the defendant's
reason for its actions, while true, is only one of the reasons for
its
conduct,
and
that
another
"motivating
factor"
was
the
plaintiff's protected characteristic(s).
See University of Texas
Southwestern Medical
133
(2013).
To avoid
plaintiff must
Center v.
summary
Nassar,
judgment
cite evidence
on his
capable of
S.
Ct.
2517,
2526
retaliation claims
establishing that
the
defendant would not have taken the adverse action but for his
22
Id. at 7.
-10-
protected activity.
Transportation,
Id.
Inc.,
at 2534.
See also Hernandez v. Yellow
670 F.3d 644,
denied, 133 S. Ct. 136 (2012)
i
657,
660
(5th Cir.),
cert.
Navy v. College of the Mainland, 407
S.W.3d 893, 901-02 (Tex. App.- Houston [14th Dist.] 2013, no pet.).
B.
Application of the Law to the Undisputed Facts
1.
Plaintiff's Discrimination Claims Fail.
Defendant argues that it is entitled to summary judgment on
plaintiff's discrimination claims because plaintiff is unable to
establish
a
prima
facie
case
with
respect
to
those
claims.
Alternatively, defendant argues that plaintiff was terminated for
the legitimate, non-discriminatory reason of poor performance, and
that plaintiff is unable to present evidence capable of showing
either that the defendant's reason for terminating his employment
was not true or that it was a pretext for discrimination. 23
(a)
Plaintiff Fails to Establish a Prima Facie Case.
A prima facie case of discriminatory termination requires a
showing that the plaintiff (1) was a member of a protected classi
(2) was qualified for the position he heldi (3) suffered an adverse
employment
actioni
and
(4)
was
treated
less
favorably
than
similarly situated employees who were not members of his protected
class(es).
See Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 426
(5th Cir. 2017)
23
(citing McDonnell Douglas, 93 S. Ct. at 1824).
Defendant's MSJ, Docket Entry No. 21, pp. 6-8.
-11-
See
also Paske v.
Fitzgerald,
785
F.3d 977,
985
(5th Cir.),
cert.
denied, 136 S. Ct. 536 (2015).
Defendant does not dispute that plaintiff has satisfied three
of the four elements required to establish a prima facie case of
discrimination based on race, color, national origin, and religion,
i.e.,
plaintiff belongs to four protected classes
(South-Asian,
dark-skinned, Pakistani-born, and Muslim) , plaintiff was minimally
qualified for
his
position,
and plaintiff
suffered an adverse
employment action when the defendant terminated his employment. 24
Defendant argues that plaintiff cannot establish a prima facie case
of discrimination because he cannot demonstrate that he was treated
less favorably than other similarly-situated employees who were
outside of his protected classes. 25
The "similarly situated" prong requires a Title VII
claimant to identify at least one coworker outside of his
protected class who was treated more favorably "under
nearly identical circumstances." This coworker, known as
a comparator, must hold the "same job" or hold the same
job responsibilities as the Title VII claimant; must
"share[] the same supervisor or" have his "employment
status determined by the same person" as the Title VII
claimant; and must have a history of "violations" or
"infringements" similar to that of the Title VII
claimant.
Alkhawaldeh, 851 F.3d at 426.
establish the fourth element,
See also Paske, 785 F.3d at 985 ("To
[plaintiff must]
show,
inter alia,
that his 'conduct that drew the adverse employment decision [was]
24
Defendant's MSJ, Docket Entry No. 21, p. 13 & n.4.
2sid.
-12-
"nearly identical" to that of the proffered comparator .
•
I
ff )
•
Defendant argues that plaintiff is unable to satisfy the fourth
element
of
a
prima
facie
case
because
he
testified
at
his
deposition that he is not aware of any other employee placed on a
PIP by Jahn who was treated more favorably than he or who was not
discharged. 26
Defendant also argues that plaintiff was, in fact,
"treated more favorably than another employee outside of
protected class
(Don
Fisher)
because
Jahn
terminated
[his]
Fisher's
employment thirty days after commencing his PIP and never even
granted Fisher an extension of the PIP." 27
Plaintiff responds that he was treated less favorably than
other engineers working for the defendant because despite being
told he would be trained on key software needed to perform his job,
i.e., Cree,
"he was only provided '2 hours' of informal training,
not by a trainer, but by a co-worker engineer." 28
that
"[t]his
difference
in
treatment
Plaintiff argues
negatively
affected
the
conditions of his employment and ultimately led to his termination
in September 2015. " 29
But missing from the summary judgment record
is evidence identifying any co-worker engineer who received better
26
Defendant' s MSJ, Docket Entry No.
21, p.
14
(citing
Plaintiff's Deposition, 245: 22-24 7: 10, Exhibit B to Defendant's
MSJ, Docket Entry No. 21-3, pp. 73-75).
27
Id. (citing Barrick Declaration, Exhibit A to Defendant's
MSJ, Docket Entry No. 21-2, p. 2 ~~ 8-9).
28
Plaintiff's Opposition, Docket Entry No. 25, pp. 12-13.
29Id.
-13-
or even different training on Creo or any other relevant software
than plaintiff received.
Moreover, plaintiff's argument contra-
diets his deposition testimony that in addition to the two hours of
training that he received from a co-worker, he received nearly one
dozen training courses and modules,
30
and he did not know of any
training 31 or who were not
other engineers who received formal
discharged after being placed on a PIP. 32
Because plaintiff has
failed to submit any evidence from which a reasonable fact-finder
could conclude that he was treated less favorably than similarly
situated employees outside of his protected classes with respect
either
to
the
type
or
amount
of
training
that
he
received,
plaintiff has failed to satisfy the fourth prong of his prima facie
case of discrimination under
Code.
§
1981,
Title VII,
and Texas Labor
Thus, plaintiff's discrimination claims fail as a matter of
law.
See Alkhawaldeh, 851 F.3d at 427; Paske, 785 F.3d at 985.
(b)
Defendant States a Legitimate, Non-Discriminatory
Reason for Terminating Plaintiff's Employment.
Citing Faruki v. Parsons S.I.P., Inc., 123 F.3d 315 (5th Cir.
1997), defendant argues that even if plaintiff could establish a
prima facie case of discriminatory termination that it is still
entitled to summary judgment on plaintiff's discrimination claims
30
Plaintiff's Deposition, pp. 109:8-110:14 and 116:11-119:19,
Exhibit B to Defendant's MSJ, Docket Entry No. 21-3, pp. 8-9 and
12-15.
31
Id. at 188:3-22, p. 50.
32
Id. at 245:22-247:10, pp. 73-75.
-14-
because it has "articulated a legitimate, nondiscriminatory reason
for
[plaintiff's]
termination,
namely,
[plaintiff's]
meet the expectations for his position." 33
Circuit
recognized poor
job performance
In Faruki the Fifth
as
a
legitimate,
discriminatory reason for termination of employment.
Defendant has thus articulated a
failure to
legitimate,
non-
Id. at 320.
non-discriminatory
reason for terminating the plaintiff's employment.
(c)
Plaintiff Fails to Raise a Fact Issue as to Pretext.
Defendant argues that plaintiff is unable to cite evidence
capable of establishing that its stated reason for terminating his
employment is a pretext for discrimination because the plaintiff
cannot cite any evidence from which a reasonable fact-finder could
conclude either that the defendant's stated reason for terminating
his
employment
national
was
origin,
or
false
or
religion
that
was
animus
a
for
his
motivating
race,
factor
color,
in
the
decision to terminate his employment. 34
Citing the July 24, 2015, PIP Extension, plaintiff argues that
defendant's stated reason for his discharge, i.e. , "that he 'failed
33
Defendant's MSJ, Docket Entry No. 21, p. 14.
See also
Defendant's Reply in Support of Its Motion for Summary Judgment
("Defendant's Reply") , Docket Entry No. 27, p. 4; and Barrick
Deposition, pp. 110:22-111:20, Docket Entry No. 25-6, p. 9 (stating
that when she inquired "what the trigger [was] to terminate" the
plaintiff, defendant's Human Resources Manager, David Dyer,
responded, "He failed to meet requirements of his PIP, plus other
circumstances.").
34
Id. at 15.
-15-
to
satisfy
the
PIP'
falls
flat
because
the
Defendant's
own
documentation shows that Plaintiff improved his performance after
being placed on the first PIP in June 2015." 35
But missing from the
summary judgment record is any evidence from which a reasonable
fact-finder could conclude that plaintiff ever achieved the PIP's
stated objectives, or that his level of performance ever met the
defendant's expectations for his position.
The July 24, 2015, PIP
Extension that plaintiff cites as evidence that his performance
improved following his placement on a PIP in June of 2015, also
shows that Jahn extended the PIP at the end of the first thirty
days because there were still
improvement is needed." 36
"areas where continued focus and
Accordingly,
present any evidence from which a
plaintiff has failed to
reasonable fact-finder could
conclude that defendant's stated reason for his termination was not
true.
Nor has
plaintiff presented any evidence
from which a
reasonable fact-finder could conclude that the defendant's stated
reason
for
terminating
his
employment
was
a
pretext
for
discrimination based on race, color, national origin, or religion.
Plaintiff's Original Complaint asserts discrimination claims
based on his race
(South-Asian) and color ("dark-colored skin"),
but plaintiff testified at his deposition that he "does not know"
35
Plaintiff's Opposition, Docket Entry No. 25, pp. 14-15
(citing July 24, 2015, PIP Extension Memo, Exhibit B-17 to
Defendant's MSJ, Docket Entry No. 22-5).
36
See July 24, 2015, PIP Extension Memo,
Defendant's MSJ, Docket Entry No. 22-5, p. 2.
-16-
Exhibit
B-17
to
whether he even believes that he was discriminated against based on
his
race
or
color and
acknowledged
that
he
had no
basis
for
asserting those claims. 37 As to claims that defendant discriminated
against him on the basis of his national origin
(Pakistani)
and
religion (Muslim) , plaintiff alleges that Jahn denied his requests
for extensions for delivery of projects when he was unable to meet
initial deadlines but that Jahn granted similar requests from nonPakistani and non-Muslim individuals,
that he overheard Jahn say
that Muslim clients are slow to respond and sluggish during the
Islamic
holy
month
of
Ramadan,
and
that
during
a
visit
to
plaintiff's office Jahn alluded to plaintiff being an outsider in
America. 38
supported
Plaintiff also argues that the defendant "ratified and
[Jahn's]
discriminatory behavior by its sham investi-
gat ion" of the complaint he made against Jahn. 39
But missing from
the record is evidence identifying any non-Pakistani or non-Muslim
co-worker who
received either an
extension
for
delivery of
a
project after failing to meet initial deadlines or a more thorough
investigation of a complaint of discrimination.
Also missing is
evidence from which a reasonable jury could conclude that Jahn's
comments
were
more
than
stray
remarks
incapable
of
raising
a
genuine issue of material fact for trial.
37
Plaintiff's Deposition, pp. 241:7-245:16,
Defendant's MSJ, Docket Entry No. 21-3, pp. 69-73.
Exhibit
~~
38
0riginal Complaint, Docket Entry No. 1, p. 2
39
Plaintiff's Opposition, Docket Entry No. 25, p. 13.
-17-
B
to
11-13 and 15.
Under Fifth Circuit precedent
comments are 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 employment decision at
issue; and 4) related to the employment decision at
issue.
Comments that do not meet these criteria are
considered "stray remarks,
and standing alone, are
insufficient to defeat summary judgment.
11
11
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 380 (5th Cir.
2010)
(citations omitted).
Jahn's alleged comments about Muslim
clients and plaintiff being an outsider in America are the only
evidence
that
plaintiff
religious
and
national
Moreover,
plaintiff
has
cites
in
origin
not
support
of
his
any
for
respectively.
discrimination,
cited
claims
evidence
capable
of
establishing that the comments attributed to Jahn were related to
the decision to
These comments are
terminate his employment.
therefore stray remarks that are not legally sufficient to raise a
fact issue as to pretext.
See Scales v. Slater, 181 F.3d 703, 712
(5th Cir. 1999) ("Stray remarks with no connection to an employment
decision cannot create a fact issue regarding discriminatory intent
and are insufficient to defeat summary judgment.
has
failed
to
cite
evidence
capable
of
11
)
•
Thus plaintiff
establishing
that
the
defendant's legitimate, non-discriminatory reason for terminating
his employment was a pretext for discrimination based on race,
color, national origin, or religion.
2.
Plaintiff's Retaliation Claims Fail.
Defendant argues that plaintiff cannot prove that defendant
retaliated against him for complaining about discrimination by
-18-
terminating his employment because plaintiff cannot establish a
prima facie case of retaliation and cannot cite facts capable of
establishing that defendant's legitimate, non-discriminatory reason
for terminating his employment was a pretext for retaliation. 40
Plaintiff
argues
that
he
has
adduced
sufficient
evidence
to
establish a prima facie case of retaliation and to raise a genuine
issue of material fact as to whether defendant's proffered reason
for his termination was a pretext for retaliation. 41
A prima facie case of retaliation requires the plaintiff to
prove that:
(1) he participated in a protected activity;
(2) his
employer took an adverse employment action against him; and (3) a
causal connection exists between his protected activity and the
adverse action.
See Hernandez,
670 F.3d at 657.
See also Navy,
407 S.W.3d at 900 (recognizing that under the§ 21.055 of the Texas
Labor Code an employer commits an unlawful employment practice if
it retaliates against an employee who:
tory practice;
or
(4)
(2) makes or files a charge;
testifies,
assists,
prima
facie
case
of
(3) files a complaint;
or participates in any manner in an
investigation, proceeding, or hearing)
a
(1) opposes a discrimina-
retaliation,
Once the plaintiff makes
the
burden
shifts
to
the
employer to "provide a 'legitimate, non-retaliatory reason for the
adverse employment action.'"
Hernandez, 670 F. 3d at 657.
See also
40
Defendant's MSJ, Docket Entry No. 21, pp. 17-19.
41
Plaintiff's Opposition, Docket Entry No. 25, pp. 13-16.
-19-
Navy, 407 S.W.3d at 900 (same).
The burden then shifts back to the
employee to prove that the protected conduct was the but for cause
of the adverse employment decision.
Hernandez,
670 F.3d at 657.
See also Navy, 407 S.W.3d at 900-01 (same).
(a)
Plaintiff Establishes a Prima Facie Retaliation Case.
The parties do not dispute that plaintiff has satisfied the
first two prongs of a prima facie case of retaliation,
i.e., the
plaintiff complained via the defendant's internal complaint hot line
that
Jahn was
adverse
discriminating
action
when
the
against
defendant
him,
and he
terminated
his
suffered an
employment.
Quoting Roberson v. Alltel Information Services, 373 F.3d 647, 655
(5th Cir. 2004), defendant argues that "'the mere fact that some
adverse [employment] action is taken after an employee engages in
some protected activity will not always be enough for a prima facie
case.'" 42
Roberson stands
for
the principle
that
temporal proximity
alone is not sufficient to establish a retaliation claim.
The
Roberson court made clear, however, that temporal proximity alone
was
not
enough
defendant's
only
legitimate,
when
analyzed
in
conjunction
non-discriminatory reason,
company-wide reduction-in-force.
Id. at 655-56.
with
the
which was
a
Defendant termi-
nated plaintiff's employment for poor performance, and the Fifth
42
Defendant's MSJ, Docket Entry No. 21, p. 18.
-20-
Circuit has
long held that
in such circumstances
close
timing
between protected activity and adverse action may be sufficient
evidence of a causal connection to establish a prima facie case.
See McCoy v. City of Shreveport, 492 F.3d 551, 561 n.28 (5th Cir.
2007)
(per
curiam)
(citing
Swanson
v.
General
Services
Administration, 110 F.3d 1180, 1188 (5th Cir.), cert. denied, 118
S.
Ct.
366
( 19 9 7) ) .
See also Clark County School District v.
Breeden, 121 S. Ct. 1508, 1511 (2001)
(per curiam)
("The 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 'very close.'").
It is
undisputed that the plaintiff engaged in protected activity by
filing a complaint against his supervisor, Jahn, in mid-August of
2015 and that plaintiff experienced an adverse employment action
when the defendant terminated his employment on September 28, 2015.
The very close temporal proximity between the plaintiff's protected
activity and the defendant's decision to terminate his employment
is sufficient to establish a prima facie case of retaliation.
See
Breeden, 121 S. Ct. at 1511.
(b)
For the
stated a
Defendant States a Legitimate, Non-Discriminatory
Reason for Terminating Plaintiff's Employment.
reasons
legitimate,
stated in
§
III. B .1 (b)
the defendant has
non-discriminatory reason
-21-
for
terminating
plaintiff's employment, "namely,
[plaintiff's] failure to meet the
expectations for his position." 43
(c)
Plaintiff Fails to Raise a Fact Issue as to Whether
Defendant's Legitimate, Non-Discriminatory Reason
for His Termination was a Pretext for Retaliation.
Asserting that Jahn began having performance discussions with
the plaintiff in May of 2015, placed him on a PIP in June of 2015,
and extended the PIP in July of 2015, and that all of these actions
pre-dated the complaint that plaintiff filed against Jahn in midAugust of 2015, defendant argues that the plaintiff cannot cite any
evidence
capable
of
establishing
that
its
legitimate,
non-
discriminatory reason for terminating the plaintiff's employment
was a pretext for retaliation. 44
from his rank speculation,
Defendant argues that "[a]part
[plaintiff] simply has no evidence that
his complaint was a 'but for' cause of his termination. " 45
Citing the July 24, 2015, PIP Extension, plaintiff argues that
defendant's stated reason for his discharge, i.e.,
that he "failed to satisfy the PIP" falls flat because the
Defendant's own documentation shows that Plaintiff
43
Defendant' s MSJ, Docket Entry No. 21, p. 14.
See also
Defendant's Reply, Docket Entry No. 27, p. 4; and Barrick
Deposition, pp. 110:22-111:20, Docket Entry No. 25-6, p. 9 (stating
that when she inquired "what the trigger [was] to terminate" the
plaintiff,
defendant's Human Resources Manager,
David Dyer,
responded, "He failed to meet requirements of his PIP, plus other
circumstances.").
44
Defendant's MSJ, Docket Entry No. 21, pp. 18-19.
45
Id. at 19.
-22-
improved his performance after being placed on the first
PIP in June 2015.
It was not until after he filed his
grievance, and after Ms. Barrick's post-discrimination
grievance investigation wrapped up that, just seven days
later, Defendant placed him on another PIP and then
promptly terminated him without any mention of the reasons
he allegedly failed to meet the requirements of that final
PIP.
Viewed in conjunction with David Dyer's admission
that
"other circumstances"
played a
role
in his
termination, a jury can reasonably conclude that the
state[d] reasons for his termination are a pretext for
retaliation for him filing a discrimination grievance. 46
For the reasons stated in§ III.B.1(c), above, the court has already
concluded that plaintiff has failed to cite evidence capable of
establishing that the defendant's stated reasons for terminating his
employment were false.
Close timing between an employee's protected activity and an
adverse action against him is sufficient to provide the causal
connection required to make out a prima facie case of retaliation,
but
is not
employer
sufficient
offers
a
to establish retaliatory motive once an
legitimate,
nondiscriminatory
explains both the adverse action and the timing.
reason
that
In such cases
plaintiffs must offer some evidence from which the jury may infer
that retaliation was the real motive.
Plaintiff has offered no
such evidencei and even assuming that he had, the court concludes
that such evidence is overcome by the undisputed evidence that
plaintiff's termination was the direct result of his performance
issues, which began months before he filed his complaint against
46
Plaintiff's Opposition, Docket Entry No. 25, pp. 14-15
(citing July 24, 2015, PIP Extension Memo, Exhibit B-17 to
Defendant's MSJ, Docket Entry No. 22-5)
-23-
Jahn and continued into September of 2015 as evidenced by the emails
that plaintiff exchanged with Jahn on September 14,
2015,
about
drawings that Jahn had requested but plaintiff had not completed. 47
The
Supreme
operations
protected
Court
upon
recognized
discovering
activity,
and
that
that
that
employers
an
need
individual
"their
has
proceeding
not
suspend
engaged
along
in
lines
previously contemplated, though not yet definitively determined, is
no evidence whatever of causality."
Breeden, 121 S. Ct. at 1511.
As a matter of law, temporal proximity alone is not sufficient
to prove a causal link connecting protected activity and an adverse
Hernandez,
employment action.
670 F.3d at 660
("'But for'
causation cannot be established by temporal proximity alone.").
Temporal proximity may only create a genuine dispute of material
fact
on
the
issue
of
but-for
causation
if
the
employee
The only
introduces other probative evidence of pretext.
other
evidence
of
pretext
to
which
also
plaintiff
points
is
the
statement that David Dyer, the defendant's Human Resources Manager,
made to Barrick about the reason for terminating the plaintiff's
employment,
i.e. ,
" [h] e failed to meet requirements of his PIP,
plus other circumstances. " 48
Plaintiff argues
that the phrase,
47
See Exhibit B-24 to Defendant's MSJ, Docket Entry Nos. 21-12
and 22-6.
See also Plaintiff's Deposition, pp. 256:24-259:9,
Exhibit B to Defendant's MSJ, Docket Entry No. 21-3, pp. 77-79
(acknowledging that Jahn was not happy about plaintiff's failure to
have completed drawings that he had been asked to complete) .
48
Barrick Deposition, pp. 110:22-111:20, Docket Entry No. 25-6,
p. 9.
-24-
"'PLUS
other
circumstances'
is
as
close
to
an
admission
of
retaliatory discharge that one can write without actually admitting
in writing that 'yes, we got rid of him because he complained about
discrimination. ['] " 49
Assuming,
without
deciding,
that
Dyer's
statement to Barrick was sufficient to raise an inference that
plaintiff's
complaint
about
considered in deciding
to
Jahn
was
terminate his
an
other
circumstance
employment,
the
court
nevertheless concludes that the defendant is entitled to summary
judgment
on
the
plaintiff's
retaliation
claims
because
Dyer's
statement does not create a genuine dispute of material fact that,
but
for
the
plaintiff's
complaints
about
Jahn's
discrimination, he would not have been terminated.
670
F.3d at
657.
For example,
the
alleged
See Hernandez,
September 14,
2015,
email
exchange between Jahn and the plaintiff shows that in mid-September
Jahn directed the plaintiff to complete drawings that plaintiff not
only failed to complete, but also show that the plaintiff argued
with Jahn about the process for doing so.
The record shows that
this conduct and plaintiff's well-documented inability to follow
the process that Jahn directed him to follow for completing his
drawing assignments are what precipitated his termination.
The
court concludes therefore that there is no genuine dispute on the
issue of but-for causation, and that the defendant is entitled to
summary
49
judgment
on
the
plaintiff's
retaliation
claims.
Plaintiff's Opposition, Docket Entry No. 25, p. 11.
-25-
See
Manaway v. Medical Center of Southeast Texas,
324-25
(5th Cir.
2011)
(per curiam)
430 F. App'x 317,
(affirming grant of summary
judgment where the employer similarly had other documented reasons
for terminating the plaintiff's employment) ;
Waco, 440 F. App'x 275, 281 (5th Cir. 2011)
IV.
Nunley v.
(per curiam)
City of
(same).
Conclusions and Order
For the reasons stated in§ III, above, Defendant's Motion for
Summary Judgment
(Docket Entry No.
21)
is GRANTED.
Because the
court has granted the Defendant's Motion for Summary Judgment, the
Defendant's Motions in Limine (Docket Entry No. 28) are DENIED as
MOOT.
SIGNED at Houston, Texas, on this the 21st day of May, 2019.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-26-
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