Allen v. Greystar Management Services, L.P.

Filing 34

ORDER GRANTING 30 Motion for Summary Judgment. The Clerk is instructed to issue a judgment in favor of the Defendant. Defendant shall submit its Bill of Costs within 14 days in the form directed by the Clerk should it desire to pursue these costs. Signed by Judge Xavier Rodriguez. (ga)

In the United States District Court for the Western District of Texas
E r ik a Allen v. G r e y s ta r Management Services, L .P . § § § § §

SA-09-CV-122

O r d e r Regarding Defendant's Motion for Summary Judgment

O n this day came on to be considered Defendant's Motion for Summary J u d g m e n t (docket no. 30). For the reasons stated below, Defendant's motion is g r a n te d . Background P la in t iff filed an Original Petition in the 150th Judicial District Court of B e x a r County, Texas on January 30, 2009. In that petition Plaintiff alleged that s h e was employed by Greystar from June 2004 until her discharge on April 11, 2 0 0 8 . Plaintiff alleges that she informed her supervisor that she was pregnant o n e month prior to her discharge.1 Plaintiff alleges that her discharge was

In her deposition Plaintiff admits she never informed Heather Leah Dalton, her supervisor, or anyone else at Greystar of her pregnancy until March 10, 2008. See Plaintiff's Depo. at p. 14. Ms. Dalton stated in her deposition that she suspected Plaintiff was pregnant on March 3 when Plaintiff made various comments about symptoms and cravings. Ms. Dalton also stated in her deposition that "sometime in February" Plaintiff asked her whether a switch in birth control would affect her menstrual cycle. "So I didn't think anything about it until she started making pregnancy comments." See Deposition of Page at pp. 129-130. The Court notes that Ms. Dalton now goes by the last name of Page. Exhibits in the summary judgment record reflect the name Dalton and the deposition transcript reflects the name Page.

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m o tiv a te d by her pregnancy in violation of the Texas Commission on Human R ig h t s Act, Tex. Labor Code §§ 21.001, et seq. O n February 13, 2009, Defendant removed this case to this Court alleging d iv e r s ity jurisdiction. Plaintiff did not contest the timeliness of the removal. G r e y s ta r is a property management company which, among other things, m a n a g e s multi-family apartment complexes for property owners. Plaintiff was in it ia lly employed as a leasing professional. She then was employed as an a s s is ta n t manager at the Sunrise Canyon complex from July 2007 until April 11, 2 0 0 8 . During this time she was supervised by Ms. Dalton. After her discharge P l a in t iff was replaced by Samantha Freeman.2 On June 11, 2008, Greystar r e c e iv e d notice from the owner of Sunrise Canyon that it was terminating its m a n a g e m e n t agreement with Greystar effective September 11, 2008. As a result o f this contractual dissolution Ms. Freeman's employment with Greystar was t e r m in a t e d on September 11.3 D e f e n d a n t's Motion for Summary Judgment D e f e n d a n t seeks summary judgment arguing: (1) Plaintiff has failed to e s ta b l is h a prima facie case of pregnancy discrimination (i.e. Plaintiff has failed t o identify a non-pregnant employee with a similar poor performance record, who w a s treated more favorably); (2) Defendant has articulated a legitimate, nond i s c rim in a t o r y reason for Plaintiff's discharge and Plaintiff has failed to raise a g e n u in e issue of material fact on the issue of pretext; (3) any front pay or back
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See Deposition of Page at 38. See Exhibit 25 to Defendant's motion for summary judgment.

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p a y obligations terminated as of September 11, 2008; (4) Defendant is entitled to an offset of back pay liability due to Plaintiff's receipt of $7,999 in u n e m p lo y m e n t compensation benefits; and (5) Plaintiff has failed to present le g a l ly sufficient evidence of mental anguish damages. S u m m a r y Judgment Standard A summary judgment is appropriate when "the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law". Fed. R. Civ. P. 56(c). Under this standard, "[a] factual dispute is deemed `genuine' if a reasonable juror could return a verdict for the n o n m o v a n t and a fact is considered `material' if it might affect the outcome of the la w s u it under the governing substantive law." Cross v. Cummins Engine Co., 9 9 3 F.2d 112, 114 (5th Cir. 1993) (quoting Beck v. Somerset Tech., Inc., 882 F.2d 9 9 3 , 996 (5th Cir. 1989)). A n a ly s is A. TCHRA

P la in t if f brings suit pursuant to the Texas Commission on Human Rights A c t (TCHRA), which prohibits an employer from, among other things, d is ch a r g in g an employee because of her gender. Tex. Lab. Code Ann. § 21.051. Section 21.051(1) provides that "[a]n employer commits an unlawful employment p r a c t ic e if because of ... sex ... the employer ... discharges an individual, or d is c r im in a te s in any other manner against an individual in connection with ... p r iv ile g e s of employment." The TCHRA further explains that sex discrimination 3

in cl u d e s discrimination "because of or on the basis of pregnancy." § 21.106(a). A stated purpose of the TCHRA is to "provide for the execution of the policies of T itle VII of the Civil Rights Act of 1964." Tex. Lab. Code § 21.001(1); see also Q u a n tu m Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). Accordingly, " `a n a lo g o u s federal statutes and the cases interpreting them guide' the reading o f the statute." Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th C ir.20 0 4 ) (quoting Quantum, 47 S.W.3d at 476). B. D is p a r a te Treatment Claim

T o prevail on a claim of discrimination based on disparate treatment, a p a r ty must prove that: (1) she was a member of a class protected by the Act; (2) s h e was qualified for her position; (3) she was terminated; and (4) she was t r e a t e d less favorably than similarly situated members of the opposing class. S e e Ysleta Ind. School Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); see a ls o Thompson v. Exxon Mobil Corp., 344 F. Supp.2d 971, 980 (E.D. Tex. 2004). A s the Texas Supreme Court explained in Ysleta, "[e]mployees are similarly s it u a te d if their circumstances are comparable in all material respects, including s im ila r standards, supervisors, and conduct. To prove discrimination based on d i s p a r a t e discipline, the disciplined and undisciplined employees' misconduct m u s t be of `comparable seriousness.' " Id. at 917 [citations omitted]. Although p r e c is e equivalence in culpability is not the ultimate question, a plaintiff must u s u a lly show that the misconduct for which she was discharged was nearly id e n tic a l to the conduct engaged in by an employee whom the company retained.

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Id . at 917-18. D e fe n d a n t argues that prior to management becoming aware of Plaintiff's p r e g n a n c y , Plaintiff had a series of work performance issues.4 As a result of t h e s e performance problems, on February 15, 2008, Plaintiff was placed on a 30 d a y action plan 5 and provided additional training from the accounting d e p a r t m e n t . Plaintiff admitted during her deposition that she had been placed o n this action plan prior to her notifying Ms. Dalton of her pregnancy.6 Plaintiff a ck n o w le d g e s that she was required to complete all objectives outlined in the a ct io n plan by March 15, 2008. Plaintiff acknowledged in her deposition that she d i d not satisfactorily complete her 30 day action plan.7 Indeed, Plaintiff (also a r e s id e n t in the apartment complex) admits to bouncing her own rent check d u r in g the 30 day action plan period.8 O n April 1, 2008, Ms. Dalton reviewed the situation with her supervisor, K a th ie Cadena, and an asset manager.9 On or about April 10, Ms. Dalton and

Plaintiff admitted in her deposition that prior to notifying Leah Dalton of her pregnancy, she had at least twenty bank deposits that were incorrect and required adjustments; she did not always reconcile the deposits after being notified of deposit discrepancies; a male resident of Sunrise Canyon complained that he was being sexually harassed by Plaintiff and Plaintiff admitted to using her private cell phone in calling the resident; Plaintiff was counseled regarding her failure to properly report NSF checks tendered by residents and pursue collection efforts; and as of February 11, 2008, bank deposit discrepancies totaled $31,000. See Plaintiff's Depo. at pp. 27-28, 32, 45, 49, 54 - 59.
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See Deposition of Page at p. 74. See Plaintiff's Depo. at p. 71. Id. at p. 162. Id. at p. 105. See Deposition of Page at p. 29.

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M s . Cadena agreed that Plaintiff's employment should be terminated for failing t o improve her performance.1 0 Upon being notified that she was discharged, P la in t if f responded that she couldn't be fired because she was pregnant.11 P la in t iff counters that her performance evaluations prior to her pregnancy w e re satisfactory, that Plaintiff's supervisor's demeanor towards Plaintiff " c h a n g e d " when she became aware of the pregnancy, that Plaintiff's supervisor h a d "issues" about pregnancy "stemming from a previous rape and subsequent a b o rt io n in the past, as well as a recent pregnancy that ended prematurely"1 2 , a n d this "likely led to the strong feelings regarding [Plaintiff's] pregnancy."1 3 P la in t iff argues that the performance issues were either fabricated or e x a g g e r a t e d and only were raised after Ms. Dalton became aware of Plaintiff's p r e g n a n c y . Plaintiff also argues that most of the bank problems were actually t h e responsibility of Ms. Dalton.1 4 Alternatively, Plaintiff appears to argue that h e r supervisor failed "to provide her with the bank training she requested on m u lt ip l e occasions." 1 5 Finally, Plaintiff argues that Defendant has propounded d if fe r i n g reasons for her discharge and such alleged inconsistencies also create

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Id. at pp. 31-33. See Deposition of Page at p. 135. See Plaintiff's Response to Defendant's motion for summary judgment at pp. 4 and

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Id. at p. 12. Id. at p. 10.

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See Plaintiff's Response to Defendant's motion for summary judgment at p. 11. This argument is rather inconsistent with the earlier argument Plaintiff makes that these tasks were not her responsibility, but rather the responsibility of Ms. Dalton.

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a material issue of fact warranting the denial of summary judgment. For the r e a s o n s stated below, all of Plaintiff's arguments fail as a matter of law. S o m e of Plaintiff's past performance reviews were done when she held a c o m p le te ly different job title and had different job responsibilities. Accordingly, t h e fact that she performed satisfactorily as a leasing professional creates no m a t e r ia l fact issue on the question of whether she satisfactorily performed her jo b duties as an assistant manager. With regard to Plaintiff's December 2007 p e r fo r m a n c e review in her role as an assistant manager, although Plaintiff was g iv e n a "successful" rating, she was informed that she could improve in the areas o f file organization and "daily review of accounts and researching to stay c u r r e n t." 16 W it h regard to Plaintiff's argument that she was not responsible for the b a n k problems and that these were Ms. Dalton's job, this argument advanced by P la in t iff's counsel is not supported by the record. Plaintiff acknowledged in her d e p o s it io n that these were her job responsibilities. The job description indicates t h a t these were Plaintiff's responsibilities. Plaintiff provides an affidavit from a former Greystar manager, Bridget Holmes. Plaintiff worked as an assistant m a n a g e r under Ms. Holmes for a short period of time. In her affidavit Ms. H o lm e s states that "as an assistant manager, Ms. Swenson 1 7 was responsible for h a n d lin g the properties deposit and bookkeeping transactions, and making

See Exhibit 2 to Plaintiff's Response (underscore in original). Plaintiff acknowledged in her deposition that these were areas she needed to work on. See Plaintiff's Depo. at p. 28.
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Swenson is the last name formerly used by Plaintiff.

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n e c e s sa r y postings and reports in Greystar's computer systems." 1 8 Ms. Dalton d id have supervisory responsibility, and Plaintiff argues that her supervisor did n o t supervise adequately, but that does not relieve the Plaintiff from the o b lig a tio n to perform her own job satisfactorily. Plaintiff has failed to establish a prima facie case of pregnancy d is c r im in a tio n . See Puente v. Ridge, 324 Fed. Appx. 423 (5th Cir. 2009) (a prima fa cie case of pregnancy discrimination requires the plaintiff to show that in the c a s e of disparate treatment that others similarly situated were treated more fa v o r a b ly ). Plaintiff has failed to identify a non-pregnant employee with a s im ila r poor performance record who was treated more favorably.1 9 The fact that P l a in t iff was replaced by a non-pregnant employee does not create a material fa c t issue. Defendant also raises an alternative argument for summary judgment. D e fe n d a n t argues it has articulated a legitimate, non-discriminatory reason for P l a in t iff's discharge and Plaintiff has failed to raise a genuine issue of material fa c t on the issue of pretext. In support of her argument that the performance issues only surfaced after P la in t iff's supervisor became aware of her pregnancy, Plaintiff argues that Ms. D a lt o n was aware of her pregnancy sometime in February 2008. There is no c o m p e t e n t summary judgment evidence in the record to support this argument. T h e competent summary judgment evidence indicates that Ms. Dalton became
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See Exhibit 3 to Plaintiff's Response. See Plaintiff's Depo. at p. 163.

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a w a r e of Plaintiff's pregnancy on March 3, 2008.

Accordingly, Plaintiff's

a r g u m e n t that Defendant's stated reasons (performance issues) are somehow fa ls e and unworthy of credence fails. Plaintiff's performance issues were

d o c u m e n t e d by the Defendant prior to it ever becoming aware of Plaintiff's p r eg n a n c y . P r io r to March 3, Plaintiff was provided with a series of emails that in d ic a t e d problems with bank debits and credits.2 0 She was provided with

a d d it io n a l instructions by email about deposit instructions and warned that t h e s e "are not to be ignored, but researched immediately." 2 1 On February 15, M s . Dalton informed her supervisor, Ms. Cadena, that "it is now necessary to r e v ie w a 30 day action plan with Erika. We had to have an attitude check this m o r n in g about Texas Legacy. She is a seasoned assistant and needs to take the r e s p o n s ib ility upon herself to ensure she understand [sic], and researches all b a n k in g responsibilities."2 2 On February 15, Ms. Dalton reviewed the 30 day a c t io n plan with Plaintiff.2 3 On February 25, a written counseling was given to t h e Plaintiff about not researching bank reports.2 4 Plaintiff disagreed with the c o u n s e lin g and stated that she "needed more training. I now know that I have t o look at Bank reports every day. Jay and Paula have both come down to San

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See Exhibit 13 to Defendant's motion for summary judgment. See Exhibit 14 to Defendant's motion for summary judgment. See Exhibit 16 to Defendant's motion for summary judgment. See Exhibit 17 to Defendant's motion for summary judgment. See Exhibit 9 to Plaintiff's Response to motion for summary judgment.

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A n t o n io to speak with me. I now understand a lot more on how the legacy s y s t e m works!" 2 5 As stated above, in her deposition Plaintiff conceded that she d id not satisfactorily complete the action plan. T h e only other arguments raised by Plaintiff in support of her pretext t h e o r y is counsel's statement that Ms. Dalton's personal past "likely led" to " s tr o n g feelings regarding Allen's pregnancy." 2 6 Plaintiff also testified that

D a lt o n gave her the "cold shoulder."2 7 Plaintiff's or her counsel's speculations a r e not competent summary judgment evidence. Malouse v. Winter, 338 Fed. A p p x . 356 (5th Cir. 2009). Finally, Plaintiff argues that some employee informed M s . Dalton's supervisor that Ms. Dalton was jealous of Plaintiff's pregnancy.2 8

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Id.

The deposition testimony reflects that on March 10, Plaintiff and Ms. Dalton had a private conversation wherein Plaintiff told Ms. Dalton she was pregnant and unsure of who the father was. Plaintiff expressed reservations about marrying the likely father. Ms. Dalton told Plaintiff if "you're not sure to marry someone, you don't marry someone." Ms. Dalton testified that she meant "so just by marrying him would not create a right, wouldn't make her pregnancy right." Ms. Dalton further testified that she spoke with the Plaintiff about her own problems carrying. The two women also discussed abortion and Ms. Dalton told Plaintiff that she had an abortion after being impregnated after a rape. Ms. Dalton testified that she regretted her decision to abort and shared that story with the Plaintiff. She also encouraged Plaintiff not to consider abortion as an option. Ms. Dalton testified that she did not "feel that [plaintiff's] pregnancy was wrong. Ms. Dalton testified that she told her supervisor that maybe Plaintiff's personal problems, not her pregnancy, were affecting her job performance. See Deposition of Page at pp. 128 - 133. Plaintiff did not contradict this version of events in her deposition nor did she offer any affidavit refuting this testimony. Plaintiff's Response to MSJ at p. 12. Plaintiff stated in her deposition that prior to becoming aware of the pregnancy, Ms. Dalton's demeanor was not ideal. After becoming aware of the pregnancy, Plaintiff testified that her demeanor "got worse." "She got to the point where she just wouldn't talk to any - - or talk to me at all, and the only communication she would make was thru e-mail. She would go into her office and close her blinds and close her door." See Plaintiff's Depo. at p. 104. Id. Ms. Cadena actually testified that "Ms. Page did tell me that either Erika told her or told someone else that she was jealous of her pregnancy." See Depo of Cadena at pp. 3031.
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A g a i n Plaintiff's speculation or subjective belief is not competent summary ju d g m e n t evidence.29 D e fe n d a n t ' s motion for summary judgment is GRANTED. Plaintiff has fa ile d to establish a prima facie case of pregnancy discrimination. Plaintiff has fa ile d to identify a non-pregnant employee with a similar poor performance r e c o r d who was treated more favorably. Alternatively, Defendant has

a rt ic u la te d a legitimate, non-discriminatory reason for Plaintiff's discharge and P la in t iff has failed to raise a genuine issue of material fact on the issue of p r e t e x t .3 0 T h e Clerk is instructed to issue a judgment in favor of the Defendant. D e fe n d a n t shall submit its Bill of Costs within 14 days in the form directed by t h e Clerk should it desire to pursue these costs. I t is so ORDERED. S I G N E D this 11th day of January, 2010.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

To the extent that this comment can be interpreted as some other employee telling Plaintiff or Cadena that Dalton was jealous of Plaintiff's pregnancy, Defendant's hearsay objection is sustained. Because of the Court's disposition of this case, we will not address the damages issues alternatively raised by Defendant.
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