Franco v. R & K Specialized Homes, Inc.

Filing 17

ORDER GRANTING IN PART AND DENYING IN PART 13 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (ga)

In the United States District Court for the Western District of Texas
J O S E P H FRANCO v. R & K SPECIALIZED HOMES, IN C . § § § § §

SA-09-CV-452-XR

ORDER

O n this day came on to be considered Defendant's motion for summary ju d g m e n t (docket no. 13). P R O C E D U R A L BACKGROUND O n May 8, 2009, Plaintiff filed his lawsuit in the 73 rd Judicial District C o u r t of Bexar County, Texas. Plaintiff was formerly employed by Defendant (" R & K " ) as its human resources director. Plaintiff alleges that Brhe Morgan, a n o t h e r employee of R&K 1 , filed a complaint with the Equal Employment O p p o r t u n it y Commission. Plaintiff asserts that after the Defendant became a w a r e of the EEOC charge, Defendant's owner, Alice Hernandez, directed him t o change certain dates on Morgan's Family and Medical Leave Act (FMLA) r e c o r d s and he refused to do so. Plaintiff alleges that he was wrongfully

R&K provides various residential services to individuals with certain disabilities. It appears, among other activities, that they operate "four ICF homes housing 24 individuals with mental retardation" and provide assistance and support to the residents in those homes. Morgan was a "house manager" at one of these homes.

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d i s c h a r g e d when he refused this directive. P la in t iff brings suit alleging that Defendant's action violated Texas Labor C o d e § 21.55, 29 U.S.C. § 2615 of the FMLA, and also is actionable pursuant to S a b in e Pilot Services, Inc. v. Hauck, 687 S.W. 2d 733 (Tex. 1985). D e fe n d a n t timely removed the case to this Court asserting federal q u e s t io n jurisdiction. F A C T U A L BACKGROUND O n or about Tuesday, March 6, 2007, Morgan visited her physician r e g a r d in g problems with her right knee. Her doctor advised her that she would n e e d surgery, and a surgery was scheduled for March 22, 2007. Her physician g a v e her an attending physician statement that stated, in part, that Morgan was " u n a b le to return to work/school as of 3/22/07 thru 5/3/07." On March 6, Morgan informed her supervisor of the scheduled surgery. A f t e r w a rd s , she met with the human resources director, Plaintiff Franco, and c o m p l e t e d a Request for Family and Medical Leave. The FMLA request form s ta t e d , in part, that "you notified us that you need this leave beginning on March 2 2 , 2007 and that you expect leave to continue until on or about May 3, 2007." I n addition, during this meeting Franco states that Morgan asked about her " p e r s o n a l time" and vacation. Franco alleges that he went to his computer and o b t a in e d estimates of her "personal time" and vacation and wrote those down on a blank timesheet and gave the timesheet to Morgan. 2 Franco wrote on the

Franco alleges that he was only able to provide Morgan estimates as it was payroll's responsibility to process payroll. "I don't do time sheets, I just give it to the payroll supervisor

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tim e s h e e t 40 hours (22 personal). On March 7, one of Morgan's supervisors, Gilbert Gutierrez, conducted an in s p e c t io n of a number of resident homes, including some managed by Morgan. G u t ie r r e z claims that he discovered a number of infractions.3 On Thursday, M a rc h 8, Morgan was issued a disciplinary counseling for inadequate conditions a t a home that she managed.4 O n Friday, March 9, Morgan returned to her physician complaining of pain a s s o c ia te d with a meniscus tear. Morgan's physician gave her an attending p h y s ic ia n 's statement that stated she was "able to perform only light duty with t h e following restrictions: Light duty only with crutches until surgery on 3-22-07 th e n off work for 6 wks." A f te r meeting her physician during the lunch hour, Morgan met with G u t ie r r e z . Gutierrez informed Morgan that she could not perform her duties as a house manager because of the light-duty restrictions.5 Morgan was sent home a n d instructed to meet with "human resources" (Plaintiff Franco) the following M onday. Later that Friday, Gutierrez became aware that Morgan used a

for their processing because I don't check for accuracy. I don't check for signatures. I don't have anything to do with ­ ." Franco further argues that he gave Morgan a timesheet for "illustration purposes." These included urine soaked bed sheets found in a closet, medication not correctly dispensed, out-of-date medications still in the medicine closet, and lack of patient progress documentation. Morgan acknowledged the disciplinary action notice that indicated she was being given a written warning, stating that she agreed and the problems had been corrected. Gutierrez opined that a person on crutches would be unable to "deal with the physical duties presented by managing individuals with mild to severe mental retardation, autism and emotional difficulties."
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c o m p a n y vehicle to visit her physician.6 Gutierrez also states that "over the w e e k e n d or early Monday," he became aware that Morgan allowed a resident to " le a v e on an outing with medicine in a plastic bag instead of the travel medicine b o tt le s that were labeled," and that a resident had missed a dosage and Morgan d id not complete an error report. For some unspecified reasons, Morgan was unable to meet with Franco on th a t Monday and a meeting was scheduled for Wednesday. Sometime on Monday, March 12, Franco spoke with Gail Phillips, an e m p l o y e e who worked in the payroll department. Phillips states that Franco t o ld her that Morgan was "going on FMLA leave due to knee surgery and that w e had to pay her for personal time and vacation time that she may have." P h illip s states that Franco then handed her a timesheet with the information n e e d e d to prepare the check.7 I t appears that an hour or two after Franco and Phillips had spoken, F r a n c o became aware that Morgan was going to be fired. On Monday, March 12, G u t ie r r e z prepared a memorandum to Franco informing Franco that Morgan w a s to be discharged because Morgan had not picked up and distributed certain a llo w a n ce checks to four residents. Franco stated he would prepare the Gutierrez

n e c e s sa r y paperwork, which would include payment of PTO.

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Morgan had previously been counseled for improperly using a company vehicle.

Franco denies handing Phillips a timesheet. Franco states that he found the time sheet in his in box on Monday, March 12 and that since he does not process payroll, he merely placed the timesheet in the payroll department in-box. Franco argues that the only verbal statement he made to Gail Phillips was that Morgan had a doctor's note and that she had filled out a FMLA form.

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d i s a g r e e d with the payment of PTO to Morgan and notified Hernandez. Ms. H e r n a n d e z called Franco and informed him that Morgan was being discharged fo r cause and that she should not be paid any PTO. Franco did not express any o p p o s itio n to the decision to discharge Morgan. On Wednesday, Morgan reported to the office and was informed that her e m p lo y m e n t was being terminated for cause (endangering the health and safety o f residents, negligence in carrying out her duties, and professional misconduct). O n May 18, 2007, Morgan filed a charge of discrimination with the EEOC.8 A ft e r the charge was received by R&K, Hernandez had Morgan's personnel d o c u m e n t s pulled and reviewed them. At that time, Hernandez became aware t h a t Morgan was paid for her unused PTO. Hernandez also states that she b e c a m e aware that the timesheet used by payroll to pay Morgan contained F r a n c o 's handwriting and the timesheet was not signed by Morgan's supervisor. H e r n a n d e z assembled her management team together to review the situation a n d decide how to proceed. O n June 5, 2007, Hernandez spoke with Franco and told him "that it was c le a r that one of the forms was incorrect since they contained conflicting in f o r m a t io n . Specifically, the FMLA request form stated that the leave was to b e g i n on March 22 and the timesheet ... said that Ms. Morgan had been placed o n leave on Friday, March 9." Hernandez further told Franco that both

d o c u m e n ts couldn't be correct ... and that the documents should be corrected...."
In that charge Morgan alleged race, sex, and national origin discrimination, stating that she had been paid less than a male co-worker, that she was denied various days off, that her FMLA benefits were denied, and that she was discharged.
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F r a n c o argues that Hernandez pointed to the FMLA leave form and told him t h a t she wanted the date changed. F r a n c o refused to alter or change Morgan's personnel documents. Franco a lle g e s that Hernandez informed the management team that he was refusing to c h a n g e the date, that thereafter he was excused from the management meeting, a n d afterwards he was discharged for "poor judgment." His termination letter in c lu d e s the following reasons for termination: negligence in carrying out job d u t ie s , failure to meet written standards of job performance, professional m is c o n d u c t, and falsifying time sheets. S U M M A R Y JUDGMENT STANDARD S u m m a r y judgment is appropriate if the summary judgment evidence s h o w s that there is no genuine issue as to any material fact and that the moving p a r ty is entitled to judgment as a matter of law. Mello v. Sara Lee Corp., 431 F .3d 440, 443 (5th Cir. 2005) (quoting Fed. R. Civ. Proc. 56). The Court reviews th e evidence and inferences to be drawn therefrom in the light most favorable to the non-moving party. FDIC v. Laguarta, 939 F.2d 1231, 1236 (5th Cir. 1991). I f the burden of proof at trial lies with the nonmoving party, the movant m a y either (1) submit credible evidence that negates the existence of some m a te r ia l element of the opponent's claim or defense, or (2) demonstrate that the e v id e n c e in the record insufficiently supports an essential element or claim. Id. I f the moving party meets its initial burden, the nonmoving party must set forth s p e c ific facts showing that there is a genuine issue for trial. Warfield v. Byron,

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4 3 6 F.3d 551, 557 (5th Cir. 2006). The nonmoving party, however, cannot satisfy t h is burden with conclusory allegations, unsubstantiated assertions, or only a s c in tilla of evidence. Id. A n a ly s is A. S a b in e Pilot

I n Texas, the employment-at-will doctrine recognizes the right of an e m p lo y e r to terminate at will and without cause the employment of any in d iv id u a l who is employed for an indefinite term. E. Line & Red River R.R. Co. v . Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888). The single exception under Texas c o m m o n law is articulated in Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (T e x . 1985). T h e elements of this state law claim have been restated by the Fifth C ir c u it as follows: the plaintiff must prove that (1) he was required to commit an ille g a l act that carries criminal penalties; (2) he refused to engage in the ille g a lity ; (3) he was discharged; and (4) the sole reason for discharge was his r e fu s a l to commit the unlawful act. White v. FCI USA, Inc., 319 F.3d 672, 676 (5 th Cir. 2003)(citing Sabine Pilot, 687 S.W.2d at 735). D e fe n d a n t first argues that Plaintiff fails to establish that he was required t o commit an illegal act that carries criminal penalties. Plaintiff responds that it is undisputed that Ms. Hernandez asked him to modify a FMLA form. P l a i n t i ff further argues that 18 U.S.C. § 1519 makes it a crime (imposing im p r is o n m e n t not more than 20 years) to alter any document with the intent to

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im p e d e , obstruct, or influence the investigation of any department or agency of t h e United States. D e fe n d a n t responds that Ms. Hernandez was merely trying to get the P la in tiff to correct documents that he falsely completed in the first place and she d i d not have any specific intent to violate 18 U.S.C. § 1519. Defendant further a r g u e s that altering the FMLA form was of no consequence because the EEOC w a s merely investigating a charge of sex discrimination and reverse race d i s c rim in a t io n - not any Family and Medical Leave Act issue. W h e t h e r or not Defendant is correct that Hernandez was merely trying to g e t Morgan's personnel file to accurately reflect actual events, Hernandez was in s tr u c t i n g Plaintiff to alter a document. The EEOC likely would have

r e q u e s te d to review Morgan's personnel file during its investigation. Even t h o u g h the EEOC would not have been investigating a FMLA issue, the c h r o n o lo g y of events and the documentation would have been of interest to the E E O C in determining whether Defendant had a legitimate, non-discriminatory r e a s o n for its actions against Morgan. Rather than maintaining the personnel file in its actual condition (and explaining any discrepancies by way of an a ffid a v it ), the altering of the document could have the effect of impeding, o b s t ru c tin g , or influencing the EEOC's investigation. Defendant's motion for s u m m a r y judgment on this issue is DENIED. A lt e r n a t iv e ly , Defendant argues that Plaintiff has failed to establish that t h e sole reason for his discharge was his refusal to commit the unlawful act. D e fen d a n t argues that Plaintiff was "partial" or "friendly" to Morgan, Plaintiff 8

k n e w Morgan was going to be discharged for cause, and notwithstanding that k n o w le d g e he completed a payroll time sheet 9 for Morgan that paid Morgan for 1 0 2 hours that she did not work and provided Morgan unused paid time off (P T O ) that she was ineligible to receive. Even if the Court assumed arguendo that Ms. Hernandez did ask Plaintiff t o alter Morgan's FMLA form in violation of 18 U.S.C. § 1519, Plaintiff has not d e m o n s tr a te d that his refusal to alter the document was the sole reason for his d is c h a r g e . Hernandez states that she discharged Plaintiff because she told F r a n c o not to give Morgan any "PTO" and that she believed that Franco s u b m i t t e d a timesheet that aided Morgan in obtaining PTO pay. Defendant's m o t io n for summary judgment on this issue is GRANTED. Plaintiff provides no c o m p e t e n t summary judgment evidence to contest that these reasons played s o m e role in the decision to discharge him. B. T e x a s Labor Code § 21.55

P u r s u a n t to Tex. Labor Code § 21.55, an employer commits an unlawful e m p lo y m e n t practice if the employer "retaliates or discriminates against a p e r s o n who, under this chapter: (1 ) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or

Defendant also seems to imply that if Plaintiff did not know of the decision to discharge Morgan prior to his conversation with Phillips, he became aware of the decision to discharge Morgan for cause within an hour or two and did nothing to correct any incorrect impression that the payroll department may have been acting under.

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(4 ) testifies, assists, or participates in any manner in an investigation, p r o c e e d in g , or hearing." Defendant asserts that, as a matter of law, Plaintiff did not engage in any p r o t e c t e d activity as described in (1) through (4) above. Plaintiff argues that he o p p o s e d a discriminatory practice. It appears that Plaintiff also argues that he w a s participating in the EEOC investigation in his role as the company's human r e s o u r c e s director. W it h regard to Plaintiff's first argument that he engaged in protected " o p p o s it io n " of a discriminatory practice, section 21.55 proscribes retaliation for h a v in g opposed conduct made unlawful by the Texas Commission on Human R ig h t s Act. Plaintiff presents no evidence that he opposed any gender

d is c r im in a tio n or reverse racial discrimination. W it h regard to whether Plaintiff engaged in protected activity by assisting o r participating "in any manner" in the EEOC investigation, this issue is less t h a n clear. Most cases raised under this theory address instances where other e m p lo y e e s assist an employee who has been discriminated against in filing an E E O C charge.1 0 Some courts, however, have held that Title VII "protects

p e r s o n s who have responsibility for ensuring an employer's compliance with T itle VII requirements against retaliation by the employer for their participation in co­workers' Title VII proceedings." Id. This Court further notes that the

See 149 A.L.R. Fed. 431, Who has "Participated" in Investigation, Proceeding, or Hearing and is Thereby Protected from Retaliation under § 704(a) of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-3(a)).

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s ta t u t o r y language protects an employee who "in any manner" testifies, assists, o r participates in any EEOC investigation. Providing no redress under Title VII t o human resource personnel who may be asked to modify a charging party's p e r s o n n e l documents could seriously undermine an EEOC investigation.1 1 This C o u r t finds that Franco "participated" in the EEOC investigation as that phrase is construed under the Texas Commission on Human Rights Act. Defendant's m o t io n for summary judgment on this issue is DENIED. I n the alternative, Defendant argues that Plaintiff has not brought forth a n y competent summary judgment evidence that the reason given for Plaintiff's te r m in a tio n was pretextual. T h e elements of a prima facie retaliation claim are that: (1) the plaintiff e n g a g e d in an activity protected by the statute; (2) an adverse employment a ct io n occurred; and (3) a causal link exists between the protected activity and th e adverse employment action. McCoy v. City of Shreveport, 492 F.3d 551, 5 5 6 -5 7 (5th Cir. 2007). Plaintiff has established a prima facie case of retaliation. A s stated above, he was engaged in a protected activity (he "participated" in the E E O C investigation), he was discharged, and he was discharged within minutes o f refusing to modify or alter Morgan's personnel records.1 2

The Defendant strenuously argues that the FMLA form was irrelevant to the EEOC's investigation. Again, the fact that the EEOC was investigating Morgan's sex and race discrimina tio n claims does not make the FMLA form irrelevant. Indeed, R&K's position statement to the EEOC in response to the charge referenced Morgan's FMLA request. A "causal link" for a prima facie showing is established if evidence shows that "the employer's decision to terminate was based in part on knowledge of the employee's protected activity." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001). "Close timing between an employee's protected activity and an adverse action against [her] may provide the
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O n c e a plaintiff presents a prima facie case of retaliation, the burden shifts t o the defendant to articulate "a legitimate, nondiscriminatory reason for the a d v e r s e employment action." Little v. Tex. Dep't of Crim. Justice, 177 S.W.3d 6 2 4 , 631 (Tex. App.-Houston [1st Dist.] 2005, no pet.). The burden is that of p r o d u c tio n only, not persuasion. Little, 177 S.W.3d at 631. If the defendant proffers a non-discriminatory rationale for the adverse e m p lo y m e n t decision, the burden returns to the plaintiff to show "that the le g it im a t e reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation]." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 1 3 3 , 143 (2000). Under the Texas statute, a plaintiff is not required to show the adverse e m p lo y m e n t action would not have occurred "but for" her age or sex; the statute r e q u ir e s only that she "show that discrimination was a motivating factor in an a d v e r s e employment decision." Quantum Chemical Corp. v. Toennies, 47 S.W.3d 4 7 3 , 482 (Tex. 2001).1 3 D e fe n d a n t argues that it is undisputed that Franco placed Morgan's in t e r e s ts ahead of the Company and falsified a timesheet in violation of C o m p a n y policy. However, Plaintiff does dispute Defendant's version of events. P l a in t iff argues that he only prepared an illustration timesheet for Morgan, that l a t e r the timesheet was placed in his in-box, and that he merely placed the

'causal connection' required to make out a prima facie case of retaliation." Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
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See also Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir. 2005).

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tim e s h e e t in the payroll department in-box.

Although Phillips' affidavit

s u p p o rt s the Company's interpretation of what transpired, Plaintiff denies that h e ever made any verbal statements to Phillips other than to say that Morgan h a d completed a FMLA form. Further, Plaintiff testified that after he refused t o alter Morgan's FMLA form, Hernandez informed the senior management m e m b e r s of his refusal. Accordingly, a material fact issue exists as to whether P la in tiff 's discharge was a motivating factor in the decision to terminate him. When ruling on a motion for summary judgment, the court is required to v i e w all facts and inferences in the light most favorable to the nonmoving party a n d resolve all disputed facts in favor of the nonmoving party. Boudreaux v. S w ift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court "may n o t make credibility determinations or weigh the evidence" in ruling on a motion fo r summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 1 5 0 . Defendant's motion for summary judgment on this issue is DENIED. C. 2 9 U.S.C. § 2615

P u r s u a n t to 29 U.S.C. § 2615(a)(2), it is unlawful for any employer to d i s c h a r g e any individual for opposing any practice made unlawful by subchapter I. As stated above, however, Plaintiff never expressed any opposition to

M o r g a n 's discharge or the denial of her FMLA leave. Accordingly, Plaintiff has n o t established that he "opposed" any practice made unlawful. Pursuant to section 2615(b)(2), it is unlawful for an employer to discharge a n y individual because such an individual has given, or is about to give, any in fo r m a tio n in connection with any inquiry or proceeding relating to any right 13

p r o v id e d under the subchapter. U n lik e the "participation" language under the Texas Commission on H u m a n Rights Act and Title VII, the FMLA language differs in very important r e s p e c ts . The TCHRA protects employees who participate "in any manner" in a n investigation. More importantly, section 2615(b)(2) makes it unlawful for an e m p l o y e r to discharge any individual because such an individual has given, or is about to give, any information in connection with any inquiry or proceeding r e la t in g to the FMLA. The Department of Labor is given investigative and e n fo r c e m e n t oversight of the FMLA. See 29 U.S.C. §§ 2616, 2617. P r io r to his discharge Plaintiff did not give any information to the DOL a b o u t Morgan. Indeed it appears that Morgan never filed any pre-litigation c o m p la in t with the DOL. Morgan filed a petition in Bexar County Court at Law n u m b e r 5 on July 18, 2008 (well after Franco's June 2007 discharge) alleging a F M L A violation. Accordingly, Plaintiff fails to establish that he gave or was a b o u t to give any information in connection with an inquiry or proceeding r e l a t in g to Morgan's FMLA request. D e fe n d a n t 's motion for summary judgment on this issue is GRANTED. C O N C L U S IO N D e fe n d a n t 's motion for summary judgment (docket no. 13) is GRANTED in part and DENIED in part. P la in t iff's Sabine Pilot cause of action is dismissed. Plaintiff's 29 U.S.C. § 2615 claim is dismissed.

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D e fe n d a n t ' s motion for summary judgment regarding Plaintiff's Texas L a b o r Code § 21.55 retaliation claim is denied and this claim survives. I t is so ORDERED. S I G N E D this 10th day of May, 2010.

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

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