Leal v. Sinclair Broadcasting Group, Inc. et al
Filing
122
REPORT AND RECOMMENDATIONS re 91 Defendants' Motion for Summary Judgment. ORDER DENYING 109 Defendants' Motion to Strike Plaintiffs Summary Judgment Evidence in Part, Plaintiff's 103 Objections to Defendants' Appendix, and Plaintiff's 111 Second MOTION for Leave, 112 Third Motion for Leave, and 113 Fourth MOTION for Leave filed by Franklin Leal. Signed by Judge Andrew W. Austin. (lt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
FRANKLIN LEAL
VS.
SINCLAIR BROADCASTING GROUP,
and SAN ANTONIO TELEVISION, LLC
§
§
§
§
§
§
A-16-CV-679 DAE
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE DAVID EZRA
SENIOR UNITED STATES DISTRICT JUDGE
Before the Court are the following motions, as well as their associated responses and replies:
•
Defendants’ Motion for Summary Judgment (Dkt. No. 91);
•
Plaintiff’s Objection to Defendants’ Appendix of Undisputed Facts (Dkt. No. 103);
•
Defendants’ Motion to Strike Plaintiff’s Summary Judgment Evidence in Part (Dkt.
No. 109);
•
Plaintiff’s Motion for Leave to Supplement Discovery (Dkt. No. 111);
•
Plaintiff’s Motion for Leave to Obtain Certified Copies of Police Report (Dkt. No.
112); and
•
Plaintiff’s Motion for Leave to Obtain Certified Court Reporter’s Transcription (Dkt.
No. 113).
The undersigned submits this Report and Recommendation to the United States District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the Local Court Rules.
I. OBJECTIONS TO EVIDENCE
Five of the six pleadings set out above relate to the parties’ objections to each other’s
summary judgment evidence. Leal’s objection is a general one, effectively complaining about the
fact that Defendants submitted an appendix with their summary judgment motion, setting forth the
facts they believe are undisputed. Dkt. No. 103. Leal is incorrect in his assertion that the appendix
violates Local Rule CV-7(d)(1), and, regardless, Defendants were granted permission to exceed the
page limits for their briefing. The Court therefore DENIES Leals’s Objections to Defendants’
Appendix of Undisputed Facts (Dkt. No. 103).
Defendants object to several of Leal’s exhibits, complaining about their lack of
authentication, lack of certification (as to deposition excerpts and a police report), and irrelevance;
they also request that the Court strike the offending exhibits. Dkt. No. 109. In response, Leal filed
three pleadings he styled “Motions for Leave,” which in fact do not actually seek leave for anything.
Dkt. Nos. 111-113. Rather, one notifies the Court that Leal has supplemented his discovery with
certain social media posts (which Defendants objected to because they were not produced during
discovery), another states that Leal has sought certification of a police report, and the last is a
declaration of the videographer, offered in an attempt to cure the lack of a court reporter’s
certification for objected-to deposition excerpts. Because the documents are not truly motions, the
Court DENIES each of them (Dkt. Nos. 111-113) as moot. As to the substantive objections
Defendants make, while several of them have merit, the Court need not address them, because, as
will be seen in what follows, the Court has not relied on any of the objected-to exhibits in reaching
its conclusions. Accordingly, Defendants’ Motion to Strike Plaintiff’s Summary Judgment Evidence
in Part (Dkt. No. 109) is DENIED.
III.
FACTUAL BACKGROUND
Franklin Leal brings this employment discrimination lawsuit against his former employer
Sinclair Broadcasting Group, Inc., and San Antonio Television, LLC, a subsidiary of Sinclair
(collectively “Defendants”). Defendants hired Leal in 2013. He was a producer of Spanish news
2
segments for the KEYE-TV television station Defendants own in Austin, Texas. Leal was
terminated on September 11, 2015. He alleges he was terminated and discriminated against because
he is Hispanic and because he suffered a nervous breakdown allegedly caused by the Defendants.
Specifically, Leal alleges that shortly after Robert Cartwright, a Caucasian, was hired as the News
Director at the station, the station’s Spanish division’s resources were redirected to the English
language division. Leal alleges that in July 2015, he requested additional resources from Cartwright
“equal to the English segments so Leal could perform the job duties assigned to him.” Dkt. No. 45
at ¶ 9. Leal contends that after he made this request, Cartwright began to bully and harass him,
creating a hostile work environment.
Leal contends that he complained to his supervisors and Human Resources that it was unfair
that the Spanish side of the television station had to work much harder with fewer resources than the
English side of the station. Leal contends his complaints went unanswered and that he continued
to receive more work from the station without any additional resources. Leal alleges that after he
complained to his supervisors about this, he was retaliated against by receiving negative feedback
about his job performance. Leal alleges he suffered a nervous breakdown on August 12, 2015, and
was hospitalized for eight days. He contends that the stress of his job and the negative treatment at
work caused him to suffer the nervous breakdown.
Two weeks later, a television reporter and camera man were murdered during a live broadcast
in Roanoke, Virginia. The murderer was a former employee of the television station where the
victims worked and was also a former employee of a Sinclair station. That same day Amy Villarreal,
General Manager of KEYE CBS Austin and Telemundo Austin, sent the entire KEYE station an
e-mail titled “Safety is a priority,” which referenced the Virginia shooting, reminded the employees
3
of certain safety guidelines and provided a link to a video regarding what to do in the case of an
active shooter entering the premises. In response to the murders, a former employee at the KEYE
station wrote a Facebook post referring to the on-air shooting and talking about the need to have a
conversation about mental health and gun violence. Dkt. 91-58. In response, Leal wrote in his post,
“Sometimes workplaces push you to the edge to do violent crazy things the bullying in workplaces
and toxic environments [sic].” Id. Later that same day, Leal made a separate post, referring to the
station where the shooting occurred and remarking “To be a journalist isn’t an easy Job but when
u have bullies in your workplace can be so crazy. That’s why people need to push a movement to
condemn bully [sic] at work.” Dkt. 91-57.
Later than evening, KEYE reporter Lydia Pantazes posted a picture of some members of the
KEYE newsroom on her Facebook page with the caption, “I couldn’t imagine losing any of these
wonderful people.” Dkt. 91-47. Leal responded to Ms. Pantazes’ post in Spanish stating “Pues q
se porten bien y no hagan bullying,” which translates to “Then they should behave well and don’t
bully.” Id.; 91-55 at 83. Leal testified in his deposition that in referencing bullying he was referring
to Cartwright and KEYE Executive Producer Ana María Lamas. Id. Villarreal saw all of Leal’s
posts and viewed them as threatening, as she felt that they “empathized with the murderer and . . .
suggest[ed] violence could be warranted within a workplace,” and noted that her concerns about Leal
“were heightened because [she] knew Leal had a history of conflicts with co-workers.” Dkt. No. 9144 at ¶ 16. She further “learned that multiple employees were afraid that the posts were threatening,
and thought they empathized with the murderer.” Id. at ¶ 17.
Villareal attempted to contact Leal (who was still out on leave for his mental health issues)
and his doctor that afternoon and evening, but was unsuccessful. Villareal reports that the next day,
4
as a direct result of these posts and the concerns of management and the Station staff,
Don Thompson, Senior Vice President of Human Resources for Sinclair, Jamie
Dembeck, Vice President of Human Resources for Sinclair and I agreed that we
would not renew Leal’s contract. In my view, Leal’s conduct could have justified
termination of his contract. However, as a group we decided to allow Leal the
opportunity to be paid through the remaining time on his contract, without requiring
him to return to work for the rest of the contractual term.
Id. at ¶ 19. That afternoon, Villareal spoke with Leal by phone, and informed him of this decision.
She also sent Leal a letter that same day notifying him that his employment contract would expire
at the end of its term on November 30, 2015. Dkt. 91-103.
Villarreal also reported her concerns to Leal’s treating physician, and was advised to inform
the police of her fears. Villareal did so, and police officers visited Leal at his apartment. Leal says
he was frightened and humiliated by the police visit and suffered a relapse of his mental breakdown
and had to return to the hospital. On September 10, 2015, Leal posted more negative comments
about the station on social media including a tweet in Spanish that translates to “You’re not going
to silence us and stop deleting my tweets cowards.” Dkt. 91-105. After reviewing these posts
Villareal met with the HR managers again, and they decided to terminate Leal’s employment contract
for “cause” based on his calling the station “cowards” on social media, which they believed reflected
negatively on the station. Dkt. No. 91-44 at ¶ 25. Ultimately, Leal was replaced by an Hispanic
female. Dkt. No. 91-55 at 93-94.
On May 10, 2016, Leal filed suit in state court, and the case was subsequently removed to
this Court. In the present motion, Defendants seek summary judgment on all of Leal’s claims.
IV. STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp.
5
v. Catrett, 477 U.S. 317, 323–25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007).
A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could
return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences
drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court
“may not make credibility determinations or weigh the evidence” in ruling on a motion for summary
judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477
U.S. at 254–55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party's case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation
are not competent summary judgment evidence. Id. The party opposing summary judgment is
required to identify specific evidence in the record and to articulate the precise manner in which that
evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.
2006). If the nonmoving party fails to make a showing sufficient to establish the existence of an
element essential to its case and on which it will bear the burden of proof at trial, summary judgment
must be granted. Celotex, 477 U.S. at 322–23.
6
V. ANALYSIS
Defendants argue they are entitled to summary judgment in this case because Leal has failed
to point to any evidence showing that he was discriminated against because of his national origin or
alleged disability. They contend Leal had a history of job performance issues and conflicts with coworkers and that he was ultimately terminated after he made threatening comments “which fellow
employees and his employer believed indicated the potential for Plaintiff to engage in workplace
violence, and misuse of and name-calling on social media.” Dkt. No. 91 at 1. Defendants further
argue that Leal’s actions violated the station’s policies and that he was terminated for “Cause.”
In contrast, Leal alleges he was discriminated against, retaliated against, and ultimately fired
because of his national origin and “a mental impairment that substantially limited one or more of his
major life activities.” Dkt. No. 45 at ¶ 14. Leal alleges Defendants violated Title VII and the
TCHRA by discriminating against him based on his national origin, creating a hostile work
environment, and retaliating against him. He also alleges discrimination on the basis of, and failure
to accommodate, his mental disability in violation of the Americans with Disabilities Act and the
TCHRA. Leal also alleges that Defendants breached his employment contract and denied him leave
in violation of the Family Medical Leave Act.
A.
Title VII Discrimination Claim1
Leal alleges that Defendants discriminated against him by terminating his employment and
by denying him resources because he is Hispanic. Title VII prohibits discrimination against an
1
The Court analyzes Leal’s Title VII and TCHRA claims as unified claims. “Because
TCHRA is intended to correlate with Title VII, the same analysis is applied for each claim.” Allen
v. Radio One of Tex. II, L.L.C., 515 F. App’x. 295, 297 (5th Cir.), cert. denied, 571 U.S. 880 (2013);
Shackelford v. Deloitte & Touche, L.L.P., 190 F.3d 398, 404 n.2 (5th Cir. 1999) (“[T]he law
governing claims under the TCHRA and Title VII is identical.”).
7
employee on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e et seq. For
cases based on circumstantial evidence, as this case is, a court is to apply the McDonnell Douglas
burden-shifting analysis. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316–17 (5th Cir.
2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “A plaintiff relying
on circumstantial evidence must put forth a prima facie case, at which point the burden shifts to the
employer to provide a legitimate, non-discriminatory reason for the employment decision.” Berquist
v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citations omitted), cert. denied, 552 U.S.
1166 (2008); Davis, 383 F.3d 309, 316–17. If the employer successfully articulates a legitimate,
nondiscriminatory reason for its decision, the burden returns to the plaintiff to offer evidence that
the reason given by the employer is merely pretext for unlawful discrimination or that the employer’s
purported reason for its actions was only one of the motivating factors, and that another motivating
factor was plaintiffs protected characteristic. McDonnell Douglas, 411 U.S. at 804–05; Autry v. Fort
Bend Independent School Dist., 704 F.3d 344, 346–47 (5th Cir. 2013) (citing Vaughn v. Woodforest
Bank, 665 F.3d 632, 636 (5th Cir. 2011)).
To establish his prima facie case, Leal must show that he “(1) is a member of a protected
class; (2) was qualified for the position; (3) was subject to an adverse employment action; and
(4) was replaced by someone outside of the protected class, or, in the case of disparate treatment,
shows that other similarly situated employees were treated more favorably.” Standley v. Rogers, 680
F. App’x 326, 327 (5th Cir. 2017) (quoting Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.
2004)). To demonstrate the third prong of his prima facie case—that he was subjected to an “adverse
employment action”—Leal points not only to the fact that he was terminated, but also contends that
8
the Defendants’ alleged denial of adequate personnel resources, and their constant negative
evaluations of him are also actionable on their own.
The Fifth Circuit has made clear that an adverse employment action is an “ultimate
employment decision” like “hiring, firing, demoting, promoting, granting leave, and compensating.”
Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014). “An employment action that does not
affect job duties, compensation, or benefits is not an adverse employment action.” Stroy v. Gibson
on behalf of Dep't of Veterans Affairs, 896 F.3d 693, 699 (5th Cir. 2018) (internal citations omitted)
Leal’s complaint that he was overworked and did not receive adequate resources is insufficient to
amount to an adverse employment action. See e.g., Leckemby v. Greystar Mgmt. Servs., LP, 2015
WL 3408667 at *5 (W.D. Tex. May 26, 2015) (refusal to provide employee with more resources
insufficient to raise a fact question for trial); Bustamante v. Hill Country Mem'l Hosp., Inc., 2010
WL 3909412, at *9 (W.D. Tex. Sept. 29, 2010) (failure to provide help with one’s work does not
qualify as an adverse employment action).
Similarly, Leal’s complaint that he was constantly being criticized and evaluated by his
supervisors also does not qualify as an actionable adverse action. An employer’s criticism of an
employee, without more, cannot form the basis of an actionable adverse employment action. Breaux
v. City of Garland, 205 F.3d 150, 157-58 (5th Cir.), cert. denied, 531 U.S. 816 (2000) (mere
accusations and criticism not adverse employment actions). Similarly, poor performance reviews
do not qualify as ultimate employment actions. Cardenas-Garcia v. Texas Tech University, 118 F.
App'x 793, 794 (5th Cir. 2004), cert. denied, 546 U.S. 811 (2005); Mitchell v. Snow, 326 F. App'x
852 (5th Cir. 2009) (lower-than-expected job performance review did not qualify as adverse
employment action). Leal does not contend that any of his performance evaluations or the criticisms
9
of his work had any affect on his pay, promotion decisions, or the conditions of employment. As
the Fifth Circuit has explained, “petty slights, minor annoyances, and simple lack of good manners
that employees regularly encounter in the workplace . . . are not actionable retaliatory conduct.”
Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008). Leal’s alleged mistreatment
by his supervisors falls into this category, and does not amount to the type of employment actions
that can form the basis of a Title VII claim
There is no question, however, that termination is an actionable employment decision. With
respect to that claim, Defendants argue that Leal has failed to show a prima facie case of
discrimination because he has failed to demonstrate the fourth factor of the prima facie case—that
he was replaced by someone outside his protected class, or that other similarly situated non-class
members were treated more favorably than Leal was. The Court agrees. There is no dispute that
Leal was replaced by an Hispanic woman. Thus, Leal argues that non-Hispanic employees were
treated more favorably than him because they were Caucasian. Leal argues that the majority of the
Caucasian workers working on the English version of the newscast were Caucasian and that they
were not asked to do as much work as Leal. However, Leal has failed to point the Court to any
evidence in the record to support these allegations other than his conclusory assertions. Leal has
failed to identify a “similarly situated” Caucasian that was not terminated after doing something akin
to calling their supervisors “cowards” or posting threatening comments on social media. As the Fifth
Circuit has explained:
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
10
“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 v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017), reh’g denied (Apr. 27, 2017).
Because Leal has failed to identify a similarly situated coworker outside of his protected class who
also committed similar acts of alleged misconduct, but who was treated more favorably than Leal,
he has failed to allege a prima facie case of employment discrimination under Title VII or the
TCHRA.
B.
Title VII Hostile Work Environment Claim
Leal also alleges he was subjected to a hostile work environment because he was Hispanic.
Leal alleges that he was the victim of “bullying and harassment” and that Villarreal, Lamas,
Cartwright and the nightly news anchor Daniel Morales all “participated in creating a harassing work
environment.” As examples of harassment, Leal complains that his supervisors (Hispanic and
Caucasian) overloaded him with work, subjected him to daily evaluations and failed to provide him
with sufficient personnel to assist him with his job.
In order to prove a hostile work environment claim under Title VII, a plaintiff must show that
(1) he is in a protected class; (2) he suffered unwelcome harassment; (3) the harassment was based
on his membership in the protected class; (4) the harassment affected a term, condition, or privilege
of employment; and (5) the employer knew or should have known of the harassment, but did not take
proper remedial action. Hackett v. United Parcel Serv., 736 F. App’x 444, 450 (5th Cir. 2018)
(citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). To demonstrate the fourth prong,
a plaintiff must show that the harassment was “sufficiently severe or pervasive” such that it created
“an abusive working environment.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.)
11
(internal quotation omitted), cert. denied, 568 U.S. 817 (2012). This is a multi-factor analysis,
looking to the frequency and severity of the actions, whether danger or humiliation (not simply
personal offense) resulted, and whether the conduct interfered with the plaintiff’s work performance.
Alaniz v. Zamora–Quezada, 591 F.3d 761, 771 (5th Cir. 2009). Further, to show that a work
environment is hostile, the evidence must demonstrate that it was “both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact
did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Only substantial
and serious incidents violate Title VII. “Teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Id. at 788. Thus, courts must “filter out complaints attacking the ordinary tribulations
of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional
teasing.” Id. (citations omitted).
As noted, Leal complains that his supervisors criticized his work, continuously evaluated his
job performance, failed to provide him with sufficient personnel and assigned him too much work.
None of these actions are the sort of “severe or pervasive” harassment that is required for a hostile
work environment claim. See Boss v. Castro, 816 F.3d 910, 921 (7th Cir. 2016) (not a hostile work
environment to be overworked, assigned unpreferred tasks or being placed on a performance
improvement plan); Porto v. Chevron NA Expl. & Prod. Co., 2018 WL 3559103, at *15 (S.D. Tex.
July 24, 2018) (“close” supervision and assignment of new and additional tasks with short deadlines
not hostile work environment). Where, as here, the employer’s actions were all rationally related
to work performance, and were not physically threatening, humiliating, or even offensive, they do
not satisfy the standard for a hostile work environment claim.
12
Even if Leal had been able to show that he had been subjected to pervasive and severe
harassment, his evidence fails to show that this was based on his national origin. Leal has presented
no evidence whatsoever that any of his supervisors’ actions were based on his national origin. See
Gibson v. Verizon Services Organization, Inc., 498 F. App'x 391, 394 (5th Cir. 2012) (finding no
hostile work environment claim where plaintiff presented only her own inference that her
supervisor’s actions were based on her protected characteristic). Notably, two of his three
supervisors were Hispanic—the General Manager of the Station, Amy Villarreal, and the Executive
Producer, María Lamas Brouhard. Leal has cited no evidence from which a reasonable fact-finder
could conclude that the actions about which he complains occurred because he is Hispanic.
Accordingly, Leal has failed to establish a prima facie case of hostile work environment
discrimination.
C.
Title VII Retaliation Claim
Leal also alleges that he was retaliated against after he complained about being treated
unfairly, in violation of Title VII and the TCHRA. The alleged retaliation was being asked to do
more with less, and also his termination. Dkt. No. 45 at p. 9. Because the McDonnell Douglas
framework also applies to retaliation cases, Leal must first make a prima facie showing of retaliation.
See Byers v. Dallas Morning News, 209 F.3d 419, 428 (5th Cir. 2000). To establish a prima facie
case of retaliation under Title VII and the TCHRA, Leal must prove: (1) he engaged in protected
activity; (2) an adverse employment action occurred; and (3) a causal link exists between the
protected activity and the adverse employment action. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 348 (5th Cir. 2007) (Title VII).
13
Leal has failed to produce evidence that he engaged in any activity protected by Title VII
prior to his termination. Protected activity means (1) opposing an unlawful employment practice,
or (2) making a charge under Title VII, or testifying, assisting, or participating in an investigation,
proceeding, or hearing under Title VII. Douglas v. DynMcDermott Petroleum Operations Co., 144
F.3d 364, 372 (5th Cir. 1998) (quoting 42 U.S.C. § 2000e-3(a)). “To satisfy the protected activity
requirement, an employee must oppose conduct made unlawful by Title VII; complaining of unfair
or undesirable treatment not addressed by Title VII will not suffice.” Richard v. Cingular Wireless
LLC, 233 F. App’x 334, 338 (5th Cir. 2007).
At the time of his termination Leal had yet to file his charge of discrimination with the EEOC
and the Texas Workforce Commission. Leal points to no evidence in the record that at any time
before his termination he ever complained to anyone at the station that he was being discriminated
against because of his national origin. Instead, the evidence shows Leal complained about the lack
of resources (including the need for additional staff), that none of his supervisors would listen to
him, and that he was working as a “slave” in a “second class newscast.” Dkt. No. 99 at 7-8. None
of these things are prohibited practices under state or federal employment statutes, however, and
there is no evidence that Leal claimed to anyone that these things were happening to him because
he was Hispanic (that is, until after he was fired). Title VII only prohibits retaliating against an
employee when the employee has engaged in specific protected activity. Because the undisputed
evidence is that Leal did not engage in any protected activity prior to the alleged acts of retaliation,
this claim fails. See Arora v. Starwood Hotels & Resorts Worldwide, Inc., 294 F. App’x 159, 162
(5th Cir. 2008); Tratree v. BP North American Pipelines, 277 F. App’x 390, 396 (5th Cir. 2008);
Richard, 233 F. App’x at 337-38.
14
D.
FMLA Claims
Leal also alleges that by terminating his employment the Defendants interfered with his rights
under the FMLA and retaliated against him for taking FMLA leave. The FMLA requires covered
employers to grant covered employees up to twelve weeks of unpaid leave for certain qualifying
reasons, such as the birth of a child or the occurrence of a serious health condition. 29 U.S.C.
§ 2612(a)(1). To ensure employer compliance, the FMLA mandates that employees who take FMLA
leave are entitled to be restored to their old positions. Id. § 2614(a). Additionally, the FMLA makes
it unlawful for any employer to “interfere with, restrain, or deny” the exercise of any right provided
under the FMLA. Id. § 2615(a)(1). The FMLA also protects employees who take FMLA leave from
retaliation for have done so. Haley v. Alliance Compressor, LLC, 391 F.3d 644, 649 (5th Cir. 2004).
As noted, Leal makes both an interference claim, and a retaliation claim.
1.
Interference Claim
For an employee to establish a prima facie FMLA interference claim, the employee “must
show: (1) he was an eligible employee; (2) his employer was subject to FMLA requirements; (3) he
was entitled to leave; (4) he gave proper notice of his intention to take FMLA leave; and (5) his
employer denied him the benefits to which he was entitled under the FMLA.” Caldwell v.
KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017).
Leal does not dispute that when he suffered his nervous breakdown Defendants granted him
FMLA leave. However, Leal contends that Defendants violated the FMLA by interfering with his
rights under the FMLA when it terminated his employment, which had the effect of denying him
FMLA leave. Whether this is a tenable claim depends on whether the Defendants terminated Leal
for reasons unrelated to his having taken FMLA leave. “[A] plaintiff’s right to reinstatement is
15
extinguished when her employer makes the decision to terminate employment for otherwise
appropriate reasons unrelated to the exercise of rights under the FMLA.” Bernard v. Bishop Noland
Episcopal Day Sch., 630 F. App’x 239, 241 (5th Cir. 2015) (citing Shirley v. Precision Castparts
Corp., 726 F.3d 675, 682 (5th Cir. 2013)). As the Fifth Circuit explained in Shirley:
It is true that an employer may not fail to reinstate an employee following his return
from FMLA leave, but only if the statutory requirements have been satisfied. Among
those requirements is one dictating that an employee must actually be entitled to the
position to which he seeks reinstatement, 29 U.S.C. § 2614(a)(3); and an employer
may challenge that entitlement by offering evidence that the employee would have
lost his position even had he not taken FMLA leave, 29 C.F.R. § 825.216(a). Thus,
although denying an employee the reinstatement to which he is entitled generally
violates the FMLA, denying reinstatement to an employee whose right to restored
employment had already been extinguished —for legitimate reasons unrelated to his
efforts to secure FMLA leave—does not violate the Act.
726 F.3d at 682-83. The burden is on the employer to show that at the time reinstatement is
requested, an employee would not otherwise have been employed for reasons unrelated to exercise
of rights secured by the FMLA. Id.
As discussed above, Defendants have articulated a legitimate reason for terminating Leal in
this case—his threatening posts and attacks on the station on social media—which violated the
station’s policies and Leal’s employment agreement. Leal has failed to point to any evidence to
counter this. Accordingly, because Leal was validly terminated for reasons unrelated to any exercise
of FMLA rights, he was not entitled to reinstatement and therefore his interference claim fails. See
Bernard, 630 F. App’x at 242 (“Because the district court found that Bernard was validly terminated
for reasons unrelated to any exercise of FMLA rights, it correctly determined that she was not
entitled to reinstatement and that her interference claim fails.”); McCollum v. Puckett Mach. Co.,
2015 WL 11112550, at *3 (S.D. Miss. Feb. 3, 2015), aff'd, 628 F. App'x 225 (5th Cir. 2015).
16
2.
Retaliation Claim
The prima facie case for an FMLA retaliation claim requires proof of that (1) the plaintiff
engaged in protected activity (requesting or taking FMLA-qualifying leave), (2) an adverse
employment action occurred, and (3) he was either treated less favorably than a similarly situated
employee who had not requested leave or there is a casual link between the protected activity and
adverse employment action. Mauder v. Met. Transit Auth. of Harris Cnty., 446 F.3d 574, 583 (5th
Cir.), cert. denied, 549 U.S. 884 (2006). If the plaintiff establishes a prima facie case of either
interference or retaliation, the burden shifts to the defendant to articulate a legitimate, nonretaliatory
reason for the adverse employment action taken. See Hagan v. Echostar Satellite, L.L.C., 529 F.3d
617, 624 (5th Cir. 2008). If the defendant meets this production obligation, the burden shifts back
to the plaintiff to show “by a preponderance of the evidence that the reasoning presented by [the
defendant] is a pretext for retaliation.” See Mauder, 446 F.3d at 583 (internal quotation marks
omitted).
Leal has failed to demonstrate the third element of a prima facie case of FMLA retaliation.
He has not shown that he was treated less favorably than a similarly situated employee who had not
requested leave, or that there is a casual link between his taking leave and his termination. The only
evidence in his favor is the temporal proximity between him taking FMLA leave and his termination.
However, as the Fifth Circuit has clarified “temporal proximity alone is insufficient to prove but for
causation.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); Roberson v.
Alltel Information Services, 373 F.3d 647, 656 (5th Cir.2004) (“[w]ithout more than timing
allegations . . . summary judgment in favor of [the defendant] was proper.”). The evidence shows
that the discussion of terminating Leal arose not when he first took leave, but instead when, while
17
he was on leave, he began making derogatory posts about Defendants on social media. To the extent
there is any temporal proximity, it is between Leal’s social media activities and his firing. And, as
has already been discussed above, even if Leal could demonstrate a prima facie case of FMLA
retaliation, he has failed to demonstrate that Defendants’ stated legitimate, non-discriminatory
reasons for his termination were pretexts for discrimination. Accordingly, Defendant’s are entitled
to summary judgment on Leal’s FMLA retaliation claim.
E.
ADA Claims
Leal also alleges that the Defendants violated his rights under the ADA. He asserts that he
“was disabled by a mental impairment due to the nervous breakdown caused by the Defendants,” and
Defendants discriminated against him because of this disability when they terminated him while he
was out on leave for the breakdown. Dkt. No. 45 at 10. Leal also alleges that Defendants failed to
accommodate his disability by terminating his employment instead of permitting him to take at least
two weeks off to recover.
1.
Discrimination Claim
Title II of the ADA prohibits employer discrimination of an employee who is a “qualified
individual with a disability on the basis of that disability.” 42 U.S.C. § 12112(a). To establish a
prima facie discrimination claim under the ADA, a plaintiff must prove: (1) that he has a disability;
(2) that he was qualified for the job; (3) that he was subject to an adverse employment decision on
account of his disability. Equal Emp't Opportunity Comm'n v. LHC Group, Inc., 773 F.3d 688, 697
(5th Cir. 2014). If the employee is successful in establishing her prima facie case, then the employer
must articulate a legitimate, nondiscriminatory reason for terminating the employee. EEOC v.
18
Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009). If the employer does so, then the
burden shifts back to the employee to show that the employer’s proffered reason is pretextual. Id.
Defendants first challenge Leal’s claim that he was a “qualified individual with a disability”
under the ADA. “The term ‘qualified individual’ means an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). This definition is qualified by the requirement
that an employee not “pose a direct threat to the health or safety of other individuals in the
workplace.” 42 U.S.C. § 12113(b). A direct threat is “a significant risk to the health or safety of
others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). Numerous
courts have found that an employee is not a qualified individual if he has made threats of violence
in the workplace. See, e.g., Williams v. Motorola, Inc., 303 F.3d 1284, 1290-91 (11th Cir. 2002)
(holding that an employee’s “inability to work with others. . . insubordination, and threats of
violence” rendered her not “otherwise qualified” within the meaning of the ADA); Palmer, 117 F.3d
at 352 (an employee’s threats of physical violence render her not “otherwise qualified” under the
ADA); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 813 (6th Cir. 1999), cert. denied, 530 U.S.
1262 (2000) (evidence that teacher threatened members of the school board disqualified him from
his job); Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998) (“An employee who is
fired because of outbursts at work directed at fellow employees has no ADA claim.”); Tran v.
Pflugerville Indep. Sch. Dist., 2014 WL 12160774, at *5 (W.D. Tex. May 23, 2014) (“[O]nce he
threatened his supervisors, Tran was no longer qualified to work as a teacher at PISD.”); Mayo v.
PCC Structurals, Inc., 2013 WL 3333055, at *4 (D. Or. July 1, 2013) (holding that employee was
19
not a qualified individual with a disability under the ADA because of his violent threats against
coworkers). As the Seventh Circuit explained:
[I]f an employer fires an employee because of the employee’s unacceptable behavior,
the fact that that behavior was precipitated by a mental illness does not present an
issue under the Americans with Disabilities Act. The Act does not require an
employer to retain a potentially violent employee. Such a requirement would place
the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an
employee, yet in jeopardy of being deemed negligent if it retained him and he hurt
someone. The Act protects only “qualified” employees, that is, employees qualified
to do the job for which they were hired; and threatening other employees disqualifies
one.
Palmer, 117 F.3d at 352 (internal citations omitted). As the Eleventh Circuit held in Williams, “[a]n
employee’s ability to handle reasonably necessary stress and work reasonably well with others are
essential functions of any position. Absence of such skills prevents the employee from being
‘otherwise qualified.’” 303 F.3d at 1290-91.
For these reasons, Leal has failed to demonstrate he was a qualified individual with a
disability under 42 U.S.C. § 12111(8). As noted, he was terminated for making threatening posts
against his coworkers and negative posts against his employer on social media. Such actions
disqualify Leal from his position. As the Fifth Circuit has stated: “We adopt for an ADA claim the
well-expressed reasoning applied in the context of a protected activity-retaliatory discharge claim:
the rights afforded to the employee are a shield against employer retaliation, not a sword with which
one may threaten or curse supervisors.” Hamilton, 136 F.3d at 1052. Thus, an employee “cannot
hide behind the ADA and avoid accountability for his actions.” Id. Leal has thus failed to
demonstrate the second element of a prima facie case of disability discrimination under the ADA.
Even if Leal was able to establish a prima facie case of employment discrimination, summary
judgment would still be appropriate on this claim. As with the other claims, Defendants have offered
20
a legitimate non-discriminatory reason for terminating Leal—his threatening and insubordinate
actions. Leal has failed to demonstrate that these proffered reasons were actually pretexts for
discrimination. See Palmer v. Circuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997),
cert. denied, 522 U.S. 1096 (1998) (“There is no evidence that Palmer was fired because of her
mental illness. She was fired because she threatened to kill another employee.”). For this reason as
well, the ADA discrimination claim fails.
2.
Reasonable Accommodation Claim
Leal also alleges that Defendants failed to provide him with a reasonable accommodation
under the ADA since they terminated his employment instead of allowing him two more weeks of
medical leave. Discrimination under the ADA includes failure to make “reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability . . . unless such covered entity can demonstrate that the accommodation would impose an
undue hardship.” Feist v. Louisiana, Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450, 452
(5th Cir. 2013) (quoting § 12112(b)(5)(A)). A plaintiff must prove the following statutory elements
to prevail in a failure-to-accommodate claim: (1) the plaintiff is a “qualified individual with a
disability;” (2) the disability and its consequential limitations were “known” by the covered
employer; and (3) the employer failed to make “reasonable accommodations” for such known
limitations. Id.
As stated above, the Court has determined that Leal is not a qualified individual with a
disability and he thus fails to meet the first prong. In addition, Leal has failed to show that
reinstating him to his previous position would be a reasonable accommodation given his threatening
and negative posts on social media. “Courts have consistently explained that a ‘second chance’ or
21
forgiveness of prior misconduct otherwise warranting termination is not a ‘reasonable
accommodation.’” Green v. Medco Health Sols. of Texas, LLC, 947 F. Supp. 2d 712, 729 (N.D. Tex.
2013), aff'd sub nom.,Green v. Medco Health Sols. of Texas, L.L.C., 560 F. App'x 398 (5th Cir.
2014). Accordingly, Leal’s reasonable accommodation claim fails.
E.
Wrongful Discharge/Breach of Contract Claim
In his final claim, Leal alleges that the Defendants violated his Employment Agreement by
terminating his employment while he was on medical leave, and by failing to pay him overtime as
required by the Employment Agreement. Though the default position in Texas is employment is “at
will,” an employer and employee may agree to contractual limitations on the employment
relationship. Malone v. Ariba, Inc., 99 F. App’x 545, 552 (5th Cir. 2004); United Transp. Union v.
Brown, 694 S.W.2d 630, 632 (Tex. App. 1985, writ ref'd n.r.e.) (noting that although Texas is at will,
“valid contractual limitations on the right to terminate may be imposed by agreement of the
parties.”). In order to establish a wrongful termination claim, “an employee must first prove that he
and his employer had a contract specifically depriving the employer of the right to terminate the
employee at will.” Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469, 471 (5th Cir.), cert. denied,
502 U.S. 984 (1991). There is no dispute here that the Defendants and Leal had a written contract
governing Leal’s employment. The question is whether there is evidence suggesting the Defendants
breached the Employment Agreement.
Leal first alleges that the Defendants breached the Employment Agreement by terminating
his employment while he was on out on leave. Although Leal refers to the contractual termination
provision in his Second Amended Complaint, he fails to explain exactly how the Defendants
breached this provision in terminating him. The termination provision contained in the Employment
22
Agreement clearly states that an employee can be terminated by the employer for “Cause.” Dkt. No.
91-65 at ¶ 8.1(a)(iii). The Employment Agreement defines “Cause” to include (1) the commission
of any act that “reflects unfavorably upon Employee, Employer or the Station, as reasonably
determined by Employer,” (2) violation of “any of Employer’s policies” and (3) “insubordination
or other misconduct as determined by Employer in its reasonable discretion.” Id. at ¶ 8.1(b)(i),(vi)
& (ix). Defendants argue that Leal’s conduct including threatening social media posts and his public
reference to station managers as “cowards,” reflected negatively on the station and was misconduct.
In addition, the Defendants contend that Leal’s conduct violated numerous of their policies,
including a policy prohibiting employees from publishing “false or malicious statements concerning
the Company, clients, managers or any employee,” and stating that employees may not “be
insubordinate” or “disrespectful” towards managers and a policy concerning the improper use of the
company’s computers and equipment. Dkt. No. 91-2 at 10-11. Leal has failed to offer any evidence
to create a fact question regarding the Defendants’ reasons for firing him. Further, as a matter of
law, these facts qualify as “Cause” under his Employment Agreement.
Leal also alleges that the Defendants violated his Employment Agreement by failing to pay
him overtime compensation for working in excess of forty hours a week. However, Leal has failed
to provide the Court with any summary judgment evidence showing that he actually worked
overtime, that he notified his employer of such overtime, and that he was never paid for such
overtime. Leal admits in his Reply that he did not document any alleged overtime compensation
because “[i]t would have been additional work to have to request permission to work overtime, on
a daily basis.” Dkt. No. 99 at 20. Accordingly, Leal has failed to demonstrate that Defendants
23
violated the Employment Agreement by failing to pay him overtime compensation.2 Based upon
the foregoing, Leal has failed to demonstrate that the Defendants breached the Employment
Agreement.3
VI. RECOMMENDATION
Based upon the foregoing, the undersigned Magistrate Judge RECOMMENDS that the
District Court GRANT Defendants’ Motion for Summary Judgment (Dkt. No. 91) in its entirety and
enter Judgment in favor of the Defendants in this case.
VII. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
2
Even if Leal had produced sufficient evidence that Defendants failed to pay him overtime
compensation, his state breach of contract claim would nevertheless be dismissed because it would
be preempted by the FLSA, and Leal has not brought an FLSA claim. See Estraca v. Rockwater
Energy Sols., Inc., 2016 WL 3748612 at *2 (W.D. Tex. July 7, 2016); Botello v. COI Telecom,
L.L.C., 2010 WL 3784202 (W.D. Tex. Sept. 21, 2010) (unjust enrichment claims based on FLSA
violations preempted by the FLSA); see also Coberly v. Christus Health, 829 F. Supp. 2d 521, 525
(N.D. Tex. 2011) (“State law claims are preempted by the FLSA to the extent the plaintiff seeks
damages for unpaid minimum wages or unpaid overtime compensation.”).
3
Though Leal arguably raised breach of contract claims based on bullying, making false
police reports, canceling medical insurance, etc. (see Dkt. No. 45 at 11), he has abandoned those
claims by not addressing them in his briefing. See Avneri v. Hartford Fire Ins. Co., 2017 WL
4663867, at *2 (E.D. Tex. Oct. 17, 2017) (“Plaintiff abandoned his negligence claim when he failed
to respond to Defendant's argument that such a claim did not exist.”).
24
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
SIGNED this 26th day of November, 2018.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?