Pena v. Golden Corral Corporation
Filing
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MEMORANDUM AND OPINION granting 18 Defendant's MOTION for Summary Judgment. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MELISSA PENA,
Plaintiff,
VS.
GOLDEN CORRAL CORPORATION,
Defendant.
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May 30, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 4:18-CV-00671
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Before the Court is the defendant’s, Golden Corral Corporation (the “defendant”) motion
for summary judgment pursuant to Rule 56 (Dkt. No. 18), the plaintiff’s, Melissa Pena (the
“plaintiff”) response to the defendant’s motion (Dkt. No. 20), and the defendant’s reply (Dkt.
No. 22). The defendant’s motion is GRANTED.
II.
FACTUAL BACKGROUND
In March of 2016, the plaintiff became the general manager of one of the defendant’s
Houston restaurant locations. Shortly thereafter, the defendant started receiving complaints from
the plaintiff’s subordinates regarding her mistreatment of staff. For instance, in May of 2016,
staff complained that the plaintiff yelled at employees, threatened their jobs and called employee
names making some cry. In June of 2016, a member of her staff reported that the plaintiff
discriminated against non-Hispanic employees. In July of 2016, a staff member reported that the
plaintiff discriminated against Hispanics causing a decline in morale. Subsequently, the
company’s director of employee relations, Scott Schaberg (Schaberg) conducted an onsite
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investigation into the plaintiff’s behavior. After hearing several complaints from employees,
Schaberg required the plaintiff to participate in an online leadership class to assist with
improving her attitude and communication with her employees. On February 27, 2017, a staff
member contacted the defendant’s Ethics and Compliance Hotline and reported that the plaintiff
was treating non-Hispanic employees disrespectfully and that the plaintiff had directed her child,
who was not employed by the defendant, to take company computer-based trainings (CBT)1 in
the place of restaurant employees.
On March 7 and 8, 2017, Schaberg conducted a second onsite investigation into the
issues raised. At the restaurant, he questioned staff about the plaintiff’s behavior towards
employees. Some staff reported that the plaintiff showed favoritism toward back-of-house staff.
Others reported similar complaints to those made in 2016. They stated that the plaintiff was rude,
talked down to employees and belittled them. Some complained that when they had a conflict
with employees who spoke Spanish, the plaintiff would speak to that employee in Spanish
without translating what she said into English, thus preventing the non-Spanish speaking
employee involved in the conflict from understanding what the plaintiff said. In addition, during
the investigation, two employees, stated that the plaintiff’s daughter, who does not work for the
defendant, had completed CBTs. Schaberg also viewed video footage of the plaintiff’s daughters
walking into the CBT room. Further, one employee informed Schaberg that during her time
working under the plaintiff, the plaintiff had also directed her and others to complete CBT
courses on behalf of other employees.
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According to the defendant, its CBT programs consist of training videos and tests that teach employees how to
perform their specific job functions within the restaurant (e.g., baker, cold prep, cook, server, etc.), and also train
employees on the defendant’s policies and procedures, including the EEO Policy, Rules of Conduct, Code of Ethics,
sanitation and cleanliness, and various other policies that employees must know to adequately to perform their jobs.
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Following his visit, Schaberg prepared a memorandum summarizing his investigative
findings. On March 13, 2017, he submitted the memorandum to the senior vice president of
human resources, and vice president of company operations to obtain their input on how to
proceed with disciplining the plaintiff for violating the company’s code of ethics and offending
staff. On March 15, 2017, the decision was made to terminate the plaintiff. On March 17, 2017,
the plaintiff e-mailed Schaberg requesting to make a complaint against District Manager Kurt
Parry (Parry) for gender and race discrimination. On March 20, 2017, the plaintiff was
terminated.
On January 29, 2018, the plaintiff filed suit in state court against the defendant alleging
that its agents and employees engaged in sex and race discrimination and retaliation in violation
of the Texas Commission on Human Rights Act, Tex. Lab. Code § 21.051 (“TCHRA”).
Subsequently, the defendant removed the case to this Court. On February 10, 2019, the defendant
filed a motion for summary judgment.
III.
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a
party who fails to make a sufficient showing of the existence of an element essential to the
party’s case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The movant bears the initial burden of “informing the district court of the basis for its motion”
and identifying those portions of the record “which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd.,
338 F.3d 407, 411 (5th Cir. 2003). Summary judgment is appropriate where “the pleadings, the
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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(c).
If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must ‘identify
specific evidence in the record and articulate the ‘precise manner’ in which that evidence
support[s] [its] claim[s].’” Stults, 76 F.3d at 656 (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed. 2d 127 (1994)). It may not satisfy its
burden “with some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal
quotation marks and citations omitted). Instead, it “must set forth specific facts showing the
existence of a ‘genuine’ issue concerning every essential component of its case.” Am. Eagle
Airlines, Inc. v. Air Line Pilots Ass'n, Intern., 343 F.3d 401, 405 (5th Cir. 2003) (citing Morris v.
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action, . . . and
an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for
the [nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether a genuine issue of material fact has been
established, a reviewing court is required to construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)).
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Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but only
where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to “weigh the evidence or evaluate the
credibility of witnesses.” Boudreaux, 402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 – 52 (1986)).
IV. ANALYSIS & DISCUSSION
A. The Plaintiff’s Race and Gender Claim
The plaintiff contends that the defendant violated the TCHRA when it terminated her
employment because she is a Hispanic female. Under the TCHRA, it is unlawful for an employer
to terminate an employee based on race or gender. Tex. Lab. Code § 21.051. The Fifth Circuit
has held that in cases where no direct evidence of discriminatory intent has been produced, proof
by means of circumstantial evidence must be evaluated using the burden shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 s. Ct. 1817, 36 L.Ed 668
(1973). But first, the plaintiff must establish a prima facie case for such a violation. The plaintiff
must show that: (1) she is a member of a protected class, (2) she is qualified for the position, (3)
she suffered an adverse employment action, and (4) others outside the class who are similarly
situated were treated more favorably. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000).
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Once the employee makes this showing, the burden of production shifts to the employer
to articulate a legitimate non-discriminatory reason for the adverse employment action. Id. at
142-143. “If the employer meets its burden, the prima facie case is dissolved, and the burden
shifts back to the plaintiff to establish that the reason proffered by the employer is merely a
pretext for discrimination.” Martin v. Kroger Co., 65 F. Supp. 2d 516, 534 (S.D. Tex. 1999).
“Although intermediate evidentiary burdens shift back and forth under the McDonnell Douglas
framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves, 530 U.S. at
133, 143, 120.
In this case, it is undisputed that the plaintiff has satisfied the first three elements of her
prima facie discrimination claim. She is a member of a protected class – Hispanic female, was
qualified for the position she held and her employment was terminated. The plaintiff maintains
that she has satisfied the fourth element as well. The plaintiff argues that Tammy Yust (Yust) a
Caucasian woman who served as a kitchen assistant manager (KAM) is similarly situated. The
plaintiff contends that while she was a salaried general manager and Yust was an hourly
employee, both were management level employees in charge of the daily operations of the
restaurant and managing employees. She adds that they both had the same supervisor and
therefore are similarly situated. During Schaberg’s investigation, Yust informed him that the
plaintiff directed her to complete the CBTs on behalf of other employees. The plaintiff contends
that Yust committed the same alleged offense, however, she was only written-up which is more
favorable than termination. She asserts that this is clear proof of discrimination.
The defendant maintains that the last element is not satisfied because Yust was not
similarly situated to the plaintiff. The defendant asserts that the plaintiff was in charge of the
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entire Houston restaurant, where as Yust was an hourly employee subject to the plaintiff’s
supervision. The plaintiff was tasked with ensuring compliance with all company policies
including the “Code of Ethics” and with ensuring that co-workers and assistant managers
participated and were certified in the CBT programs. The defendant adds that unlike the plaintiff,
Yust did not possess the ultimate responsibility over the restaurant’s operations and CBT work.
Further, the defendant claims that while the CBT matter was the driving force behind the
plaintiff’s termination, the complaints regarding the plaintiff’s rude behavior and communication
problems factored into the decision as well.
The court finds that the fourth element has not been satisfied. The Fifth Circuit has
determined that employees with different supervisors, different work responsibilities, and
dissimilar violations are not similarly situated. See Lee v. Kanasas City Southern Ry. Co., 574
F3d 253, 259 (2009). Therefore, the plaintiff has not raised an issue of material fact here.
Moreover, the plaintiff has failed to prove that she and Yust shared the same supervisor and job
responsibilities. Albeit, Parry is identified as a manager, he is specifically identified as the
district manager. As restaurant general manager, the plaintiff reported to the district manager. As
a KAM in the restaurant, Yust reported to the plaintiff. Consequently, the plaintiff and Yust did
not have the same supervisor.
Further, the plaintiff and Yust did not have the same job responsibilities. As general
manager the plaintiff was responsible for managing the entire restaurant, including the KAMs
like Yust. Moreover, the plaintiff also failed to prove that she and Yust had comparable violation
histories. Unlike the plaintiff, other employees had not made complaints regarding Yust being
disrespectful or displaying discriminatory behavior at work. Here, the plaintiff is accused of
directing her daughter and employees to complete CBTs on behalf of other employees. The
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record, however, does not include any allegations of Yust directing anyone to do the same.
Finally, the plaintiff signed the code of ethics acknowledging that she read and understood the
code of ethics before the violation. The plaintiff has failed to prove the fourth element of the
prima facie case. The record before the court does not support a finding that the plaintiff and
Yust were similarly situated.
B. The Plaintiff’s Retaliation Claim
The TCHRA prohibits an employer from retaliating against an employee for engaging in
certain protected activities. TEX. LABOR CODE ANN. § 21.055 (Vernon 2006). Protected
activities include filing complaint. Anderson v. Houston Community College System, 458 S.W.
3d 633, 647 (2015). Making a prima facie case for a retaliation claim requires the plaintiff to
demonstrate that: (1) she enaged in a protected activity; (2) an adverse employment action
occurred, and (3) a causal connection exists between the protected activity and the adverse
action. Gorman v. Verizon Wireless Texas, L.L.C. 753 F.3d 165, 170 (2014). If the employee
makes a prima facie showing of retaliation, the burden shifts to the employer to articulate a
legitimate, non-retaliatory reason for her termination. Gorman, 753 F.3d at 171.
The plaintiff contends that the defendant violated the TCHRA when it retaliated against
her by terminating her employment because she filed a complaint. The plaintiff maintains that
she has satisfied the requirements of the prima facie case and alleges that a couple of days after
she alerted the company that she was experiencing race and gender discrimination the defendant
terminated her. The defendant argues that the plaintiff cannot satisfy the third element of a
retaliation claim because no causal link exists between her alleged protected activity and the
termination. The defendant maintains that the record confirms that the decision to terminate her
employment was made on March 15, 2017. However, before Schaberg could return to Houston
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to notify the plaintiff of her termination, the plaintiff emailed him expressing her wishes to make
a formal complaint against Parry and one of her employees. On March 20, 2017, the plaintiff
returned to work after vacation and was terminated. The defendant maintains that the plaintiff’s
email had no impact on the decision to terminate her employment and her retaliation claim fails
as matter of law.
The court finds that the plaintiff has not satisfied third element for a retaliation claim. An
employee asserting a retaliation claim must establish that, in the absence of her protected
activity, the employer’s prohibited conduct would not have occurred when it did. Anderson, 458
S.W. 3d. at 647. The plaintiff has failed raise an issue of material fact in this regard. Schaberg’s
investigation yielded security video footage showing the plaintiff’s daughter had been present at
the restaurant and in the room where the CBTs were taken on the day that CBTs were completed
for some of the restaurant employees. Additionally, two employees reported that the plaintiff
asked them to complete CBTs for other employees. This behavior violated the defendant’s code
of ethics and the defendant made a determination regarding the plaintiff’s employment
subsequent to such findings.
It is reasonable that the defendant would take action in light of the investigation findings.
Perhaps the absence of such an investigation into the allegations against the plaintiff would allow
the court to determine a nexus between the complaint and the termination. But in this instance
the plaintiff’s termination came promptly after the second onsite investigation was completed.
Based on the record it appears reasonable that the plaintiff would have been terminated
regardless of her filing a complaint. Moreover, the defendant has provided a legitimate nondiscriminatory reason for the terminating the plaintiff. The impetus for the termination was the
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plaintiff’s inability to address concerns regarding her treatment of staff and for directing
employees and her child to complete CBTs on behalf of other employees.
V.
CONCLUSION
Based on the foregoing analysis and discussion, the defendant’s motion for summary
judgment is GRANTED.
It is so ORDERED.
SIGNED on this 30th day of May, 2019.
___________________________________
Kenneth M. Hoyt
United States District Judge
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