Rudkin v. Roger Beasley Imports, Inc.
Filing
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REPORT AND RECOMMENDATIONS re 39 Motion for Summary Judgment filed by Roger Beasley Imports, Inc. ORDER GRANTING 54 Motion to Strike filed by Roger Beasley Imports, Inc. Signed by Judge Andrew W. Austin. (lt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRADLEY RUDKIN
VS.
ROGER BEASLEY IMPORTS, INC.
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A-17-CV-849-LY
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendant Beasley’s Motion for Summary Judgment (Dkt. No. 39);
Rudkin’s Response (Dkt. No. 52); Defendant Beasley’s Reply (Dkt. No. 53); and Defendant
Beasley’s Motion to Strike Plaintiffs’ Summary Judgment Evidence (Dkt. No. 54). 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. GENERAL BACKGROUND
This is an employment discrimination case. Bradley Rudkin was employed as a sales
manager by car dealership Roger Beasley Imports, Inc., beginning in February of 2015. Beasley
terminated Rudkin on April 25, 2016. Rudkin is a transgender man and presented himself as male
at all times relevant to the lawsuit. Dkt. No. 1 at 8. He sues his former employer for sex
discrimination in violation of Title VII, breach of contract, invasion of privacy, and intentional
infliction of emotional distress. The case was originally filed in Travis County District Court on
August 1, 2017, and was removed to this court on August 31, 2017, based on federal question and
supplemental jurisdiction. In the present motion, Beasley seeks summary judgment on all of
Rudkin’s claims.
II. SUMMARY JUDGMENT STANDARD
“Summary judgment is required when ‘the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.’ ” Trent v. Wade, 776
F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). “A genuine dispute of material fact
exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’ ” Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial
responsibility 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.’ ” Id.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
“Where the non-movant bears the burden of proof at trial, the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact warranting trial.” Id.
(quotation marks omitted); see also Celotex, 477 U.S. at 325. “A fact is ‘material’ if its resolution
in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v.
Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party
fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of
the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th
Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam)).
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“Once the moving party [meets its initial burden], the nonmoving party must ‘go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions
on file, designate specific facts showing that there is a genuine issue for trial.’ ” Nola Spice, 783 F.3d
at 536. In deciding a summary-judgment motion, the court draws all reasonable inferences in the
light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008);
see also Nola Spice, 783 F.3d at 536.
III. ANALYSIS1
A.
Title VII Claim
The complete statement of he Title VII claim in the Original Petition is as follows:
Defendant committed an unlawful employment practice because Defendant
discharged and/or otherwise discriminated against Plaintiff with respect to his
compensation, terms, conditions, or privileges of employment, on the basis of
Plaintiffs sex.
Dkt. No. 1 at 11. Beasley moves for summary judgment on this claim, construing it as an adverseaction Title VII sex discrimination claim. To make out a prima facie case of sex discrimination,
plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for the position;
(3) he was subjected to an adverse employment action; and, (4) he was treated less favorably than
similarly-situated individuals of the other sex, or replaced by a member of that sex. Okoye v.
Houston Health Science Center, 245 F.3d 507, 512-13 (5th Cir. 2001). An adverse employment
action is an ultimate employment decision such as hiring, firing, demoting, promoting, granting
leave, and compensating. Felton v. Polies, 315 F.3d 470, 486 (5th Cir. 2002); Thompson v. City of
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In his response, Rudkin withdraws his invasion of privacy and intentional infliction of
emotional distress claims, so the Court does not address those claims in this Report and
Recommendation, and summary judgment is proper as to them.
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Waco, 764 F.3d 500, 503 (5th Cir. 2014). If a plaintiff establishes a prima facie case, the burden
shifts to the employer to show it had a legitimate, non-discriminatory reason for the adverse
employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Willis v.
Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006). If the employer can show a legitimate,
non-discriminatory reason, the presumption of discrimination disappears, and the burden shifts back
to the employee to show that the proffered reason was a pretext for discrimination or that the
employee’s protected status was at least a motivating factor for the decision. See Alvarado v. Tex.
Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
Beasley asserts that Rudkin cannot make out the fourth element of his prima facie case,
because he cannot show that he was treated less favorably than a similarly situated non-transgender
employee. Beasley offers summary judgment evidence that the reason it fired Rudkin was that he
had engaged in fraudulent lending practices. Specifically, on April 22, 2016, a customer called
Steven Tonsi, Rudkin’s supervisor, to complain that Rudkin had falsified the customer’s income
through faked paystubs in order to qualify the customer for financing. Tonsi testified that upon being
notified by the customer, he searched Rudkin’s computer and found an Excel template used to
manufacture fake paystubs. Dkt. No. 39-1 at 3. Tonsi testified that after he confirmed that the
complaining customer was one of Rudkin’s past customers, he confirmed that the documentation of
the sale matched the customer’s description of the event, and discovered that the paystub template
had been completed with that specific customer’s personal identifying information Id. Based on this
information, Beasley terminated Rudkin for violation of state and federal law and of Beasley’s
policies and procedures. Beasley further submits summary judgment evidence of other customers’
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paystubs that Rudkin had falsified and sent to a lender in order to qualify those customers for credit.
Id.
Beasley argues that Rudkin cannot point to a similarly situated non-transgender employee,
or any employee, who falsified customers’ paystubs but was not terminated. Beasley asserts that
Rudkin’s falsification of paystubs also qualifies as a legitimate nondiscriminatory reason for
Rudkin’s termination, shifting any burden to Rudkin, which he cannot meet. Rudkin does not
respond to Beasley’s burden shifting arguments and does not submit any contravening evidence.
Instead, he claims he is making a hostile work environment claim, and not an adverse-action claim.
Based on both the undisputed evidence submitted by Beasley, and on Rudkin’s abandonment of the
claim, the Court concludes that Beasley is entitled to summary judgment on the claim that he was
terminated in violation of Title VII.
Beasley further argues that Rudkin should not be permitted to pursue a hostile work
environment claim, as he never pled that claim, and the claim is time-barred. The Court agrees that
Rudkin’s change of course mid-stream is improper. For this reason alone, summary judgment is
proper on any such claim. Even if it is not, the claim fails on its merits. To state a claim for hostile
work environment, plaintiff must plead facts to show that: (1) he belongs to a protected group; (2)
he was subjected to unwelcome harassment; (3) the harassment was based on his protected status;
(4) the harassment affected a term, condition, or privilege of employment; and, (5) defendant knew
or should have known about the harassment and failed to take remedial action. Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002). To be actionable, the harassment must be both
objectively and subjectively offensive. Harvill v. Westward Communications, LLC, 433 F.3d 428,
434 (5th Cir. 2005). Factors considered include the frequency of the conduct, its severity, whether
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the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it
unreasonably interfered with the employee’s work performance. Williams v. Innovate Loan Servicing
Corp., No. 4:13-CV-994-A, 2015 WL 1402336, at *3 (N.D. Tex. Mar. 26, 2015). The Supreme
Court has “made it clear that conduct must be extreme to amount to a change in terms and conditions
of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Rudkin relies upon his own Declaration is support of his hostile work environment claim.
Dkt. No. 52-1. In his Declaration, Rudkin relies on these events to support his hostile work
environment claim:
Two weeks into my employment, my superior and Beasley’s vice president, made
unwelcome and harassing comments to me about being transgender, including
saying, “I hear you are a crossdresser . . . just keep it professional.”
On another occasion, my girlfriend (who is a transgender woman) visited me during
lunch at Roger Beasley. I was subjected to comments from co-workers which were
unwelcome and harassing, including two person who asked me, by shouting across
the showroom floor, “Hey, you’re not sucking each other’s [explicative], are you?,”
referring to me and my girlfriend both being transgender.
On another occasion, the son of Steve Tonsi, who also worked at Roger Beasley,
went so far as to blatantly gawk at me and my girlfriend in an attempt to “see
something,” referring to mine and my girlfriend’s genitals.
Id. Rudkin testified that the comments and conduct directed at him “were unwelcome, made me
extremely nervous, and I did not feel I was in a safe place.” Id. In the same Declaration, Rudkin also
testified that after he was fired, he spoke to three Beasley employees, Rob Fryholder, Erica Vasquez,
and Rick King, who all indicated that he was fired for being transgender. Id.
First, Rudkin’s testimony that he spoke to three former coworkers who opined he was
terminated because he was transgender, is obvious hearsay and is not admissible summary judgment
evidence. Beasley objects to this statement and asks that it be stricken. While the form of summary
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judgment evidence need not be admissible, the content of the evidence must meet evidentiary
requirements. Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997); Salas v. Carpenter, 980 F.2d
299, 305 (5th Cir. 1992); see also Anderson v. Dallas Cty., 2007 WL 1148994, at *3 (N.D. Tex. Apr.
18, 2007) (noting “for example, while an affidavit has limited admissibility at trial, it is sufficient
evidence to support or defeat a motion for summary judgment even though inadmissible statements
in the affidavit, such as hearsay statements, may not be considered by the court”). “Testimony is
considered hearsay only if the witness is testifying to a statement made by another party in order to
prove or demonstrate the truth of that statement.” United States v. Bernes, 602 F.2d 716, 719 (5th
Cir. 1979). Rudkin’s declaration that three of his former coworkers informed him he was fired
because he is transgender is an out of court statement by these individuals used in an attempt to
demonstrate that Rudkin was discriminated against because of his transgender status — the truth of
the matter asserted. It is therefore hearsay and not admissible. FED. R. EVID. 801(c), 802. As to this
statement, the Court therefore GRANTS Defendant Beasley’s Motion to Strike Plaintiffs’ Summary
Judgment Evidence (Dkt. No. 54).
Assuming the truth of the other three statements relied upon by Rudkin to show the existence
of a hostile work environment, they are not sufficient to make out a prima facie hostile work
environment case. Assuming Rudkin’s transgender status placed him in a protected class, he has not
shown that the alleged harassment affected a “term, condition, or privilege” of his employment. The
Fifth Circuit has explained that:
[h]arassment affects a term, condition, or privilege of employment if it is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment. Workplace conduct is not measured in isolation. In
order to deem a work environment sufficiently hostile, all of the circumstances must
be taken into consideration. This includes the frequency of the discriminatory
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conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance. To be actionable, the work environment must be 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.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citations and internal
punctuation omitted). “A hostile work environment exists ‘when the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’” Stewart v.
Mississippi Transp. Comm'n, 586 F.3d 321, 328 (5th Cir. 2009) (quoting Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 116 (2002) ). “Merely offensive” conduct is not actionable. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The legal standard for workplace harassment is “high,”
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 509 (5th Cir. 2003), and “the Supreme Court
has warned that these high standards are intentionally demanding to ensure that Title VII does not
become a general civility code, and when properly applied, they will filter out complaints attacking
the ordinary tribulations of the workplace, such as the sporadic use of abusive language.” Howard
v. United Parcel Serv., Inc., 447 F. App'x 626, 632 (5th Cir. 2011) (per curiam).
The three isolated instances cited by Rudkin, occurring over a fifteen month period, are not
sufficiently “severe and pervasive” to affect a “term, condition, or privilege” of Rudkin’s
employment. A hostile work environment is one in which the abuse is continuous, not simply
episodic. Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998); Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007) (a supervisor’s infrequent and isolated
comments to the plaintiff about “ghetto children” and other racially insensitive remarks did not
create a factual dispute as to whether there was severe or pervasive harassment). Three incidents
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over fifteen months is not sufficiently frequent to create a hostile work environment. Moreover, the
behavior does not qualify as “severe,” but instead was “merely offensive.” The statement, “I hear
you are a crossdresser. . . just keep it professional,” while potentially offensive, does not qualify as
physically threatening or humiliating. The second incident, where coworkers yelled at him and his
girlfriend when they visited him at lunch, while offensive, was not physically threatening. And the
last incident, where Rudkin alleges a coworker “gawked” at him and his girlfriend, allegedly staring
at their genitalia, is, in the context of no other objectionable statements by this person, impossible
to quantify as even objectively offensive. See Robin Cook v. Applied Data Research, No.
88–2894(CSF), 1989 WL 85068, at *14–15 (D.N.J. July 20, 1989) (finding, at summary judgment
stage, that numerous incidents of provocative staring and leering were insufficient, as a matter of
law, to establish hostile work environment claim). Moreover, Rudkin fails to allege that any of these
identified instances of allegedly hostile behavior interfered with his ability to do his job.
Based on the facts of this case, the Court is of the opinion that while the conduct in issue
might be considered offensive, it does not “rise to the level of severity or pervasiveness required by
law.” Gibson v. Potter, 264 Fed.Appx. 397, 398 (5th Cir. 2008) (citations omitted); see also Stewart
v. Mississippi Transp. Comm'n, 586 F.3d 321, 330 (5th Cir. 2009) (while conduct was offensive, it
was not severe or threatening, and, as such, was “not the kind of conduct that would interfere
unreasonably with a reasonable person’s work performance or destroy her opportunity to succeed
in the workplace”). On the record before the court, viewing all evidence in the light most favorable
to Rudkin and drawing all reasonable inferences in his favor, the court concludes that he has not
raised a genuine dispute of material fact as to all elements of his hostile work environment claim,
and summary judgment is appropriate on this claim.
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B.
Breach of Contract Claim
Beasley moves for summary judgment on Rudkin’s state law breach of contract claim,
arguing that Rudkin was an at-will employee and not subject to an employment contract. Rudkin
responds that $1500 was improperly taken from his last check, and this violated the terms of his Pay
Plan. It is not at all clear that Rudkin can make out a valid breach of contract claim.2 However, the
Court need not reach the merits of that claim. When it has dismissed claims over which it had
original jurisdiction (here, the Title VII claim), a district court has discretion to decline to exercise
supplemental jurisdiction over pendent state law claims. St. Germain v. Howard, 556 F.3d 261,
263–64 (5th Cir. 2009) (per curiam). “The general rule is that a court should decline to exercise
jurisdiction over remaining state-law claims when all federal-law claims are eliminated before trial.”
Brookshire Bros. Holding v. Dayco Prod., Inc., 554 F.3d 595, 602 (5th Cir. 2009). Rather than wade
into the murky waters of whether the facts on this claim are undisputed, the Court believes that it
should exercise its discretion and decline to exercise jurisdiction over the claim.
IV. RECOMMENDATION
For the reasons set forth above the undersigned RECOMMENDS that the district judge
GRANT Defendant Beasley’s Motion for Summary Judgment (Dkt. No. 39) as to Rudkin’s Title VII
claim and state law tort claims and DISMISS those claims WITH PREJUDICE. The undersigned
FURTHER RECOMMENDS that the District Court DISMISS Rudkin’s state law breach of
contract claim for lack of jurisdiction.
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For example, Beasley has submitted evidence strongly suggesting that Rudkin was paid more
than he was entitled to under the Pay Plan.
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V. 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).
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 30th day of November, 2018.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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