Montalvo v. Aerotek, Inc.
Filing
29
ORDER DENYING 16 Motion for Summary Judgment; GRANTING 17 Motion to Strike Jury Demand. Signed by Judge David A. Ezra. (wg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MELBA MONTALVO,
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§
Plaintiff,
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vs.
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AEROTEK, INC.
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Defendant.
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________________________________ §
CV. NO. 5:13-CV-997-DAE
ORDER (1) DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
(2) GRANTING DEFENDANT’S MOTION TO STRIKE JURY DEMAND
On November 12, 2014, the Court held a hearing on the Motion for
Summary Judgment and Motion to Strike Jury Demand filed by Defendant Aerotek,
Inc. (“Aerotek” or “Defendant”) (“MSJ,” Dkt. # 16; “Mot. Strike,” Dkt # 17). Lecia
L. Chaney, Esq., represented Plaintiff Melba Montalvo (“Montalvo” or “Plaintiff”);
Christine E. Reinhard, Esq., represented Aerotek. After careful consideration of the
memoranda in support of and in opposition to the motions, and in light of the
parties’ arguments at the hearing, the Court, for the reasons that follow, DENIES
Defendant’s Motion for Summary Judgment (Dkt. # 16) and GRANTS Defendant’s
Motion to Strike Jury Demand (Dkt. # 17).
1
BACKGROUND
In May 1997, Montalvo began working as an administrative assistant
for the recruiting and staffing agency, Aerotek. (“MSJ Resp.,” Dkt. # 22,
“Montalvo Aff.,” Ex. 2 (“TPA Straughn Aff.”) ¶ 1; MSJ Resp., Ex. A ¶ 1.) During
her fifteen years of employment at Aerotek, Montalvo climbed the corporate ladder
to a position as Customer Service Supervisor (“CSS”) in the Central Region.
(Montalvo Aff. ¶ 2; “Tydings Dep.,” MSJ Resp., Ex. 2 at 190:25, 191:17.) In 2012,
she was forty-five years old. (See Tydings Dep. at 190:25.)
In September 2012, Montalvo attended a company meeting in Fort
Worth. (Montalvo Aff. ¶ 7.) At that meeting, Mike Hansen (“Hansen”), the Central
Region’s Regional Vice President, delivered a presentation, during which he said,
“We are going to get rid of the dinosaurs of the company.” 1 (“Montalvo Dep.,”
MSJ Resp., Ex. 1 at 182:4–23; “Rodriguez Aff.,” MSJ Resp., Ex. 13 at 1; “Tydings
Dep.,” MSJ Resp., Ex. 2 at 46:21–47:7.) Upon returning the San Antonio office,
Kevin Healy (“Healy”), the Director of Business Operations in the San Antonio
office, held a meeting to recap the Fort Worth meeting for the employees who had
1
Hansen and fellow co-workers deny the exact phrasing of this statement. (“Hansen
Dep.,” MSJ Resp., Ex. 14, 74:16–75:15 (“I was talking about our technology and
that we have to stay abrupt and on top of all technology changes . . . we never want
to become dinosaurs and lose our position with the folks throughout the
organization.”) However, at the summary judgment stage, the Court must view the
evidence in the light most favorable to the plaintiff. Kevin M. Ehringer Enters. v.
McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011).
2
been unable to attend. (Montalvo Aff. ¶ 3; Montalvo Dep. at 202:12–20.) During
that discussion, Healy repeated Hansen’s dinosaur comment to the group.
(Montalvo Dep. 202:12–20.) Sometime shortly thereafter, Montalvo, who was the
oldest CSS in the Central Region, discussed her perception that Hansen’s remark
was inappropriate with other colleagues. (Montalvo Dep. 195:5–22.)
On September 17, 2012, Tracy LeClaire, Aerotek’s Employee
Relations Specialist, provided Kiley Cochran (“Cochran”), Montalvo’s direct
supervisor, with a template for a Final Written Warning letter prepared for
Montalvo. (MSJ Resp., Ex. 19.) On October 2, 2012, Montalvo received the “Final
Written Warning” regarding unsatisfactory performance. (MSJ Resp., Ex. 11.) The
letter cited various performance issues, which the letter stated “ha[d] been brought
to [her] attention verbally on multiple occasions by [her] supervisor, Kiley
Cochran.” (Id. at 1.) Montalvo disputes that she ever received any oral or written
warnings about her performance prior to this incident. (“Aero Montalvo Dep.,”
MSJ, Ex. 3 at 236:14–16.)
On October 4, 2012, Montalvo reported for the first time Hansen’s
comment to Tanya Tydings (“Tydings”), who was Aerotek’s Human Resources
Manager for the Central Region. (Tydings Dep. at 19:5–15, 69:8–12; Aero
Montalvo Dep. at 237:2–5, 240:4–7.) Tydings immediately investigated the
complaint by reaching out to two human resources specialists that were present at
3
the September meeting, as well as Healy Cochran. 2 (Tydings Dep. 69:18–70:13.)
All parties present confirmed that Hansen had made a remark about dinosaurs, but
stated that the comment did not allude to terminating employees based on age and
instead related to technological change at the company. (MSJ Resp., Ex. 12 at 4.)
Tydings conveyed these findings to Montalvo and suggested that she speak
individually with Cochran, Healy, and Hansen so that they could reassure her of the
meaning of the comment. (Id.)
Meanwhile, throughout October 2012, Montalvo and Cochran engaged
in discussions about the performance of Marisol Hernandez (“Hernandez”), who
Montalvo directly supervised. (See MSJ Resp., Exs. 20–22.) Marisol was having
ongoing issues with the Drug and Background Audit. (MSJ Resp., Ex. 20.)
Through email, Cochran suggested that Montalvo could either write-up Hernandez
or terminate her. (MSJ Resp., Ex. 21.) At the recommendation of Tydings,
Montalvo prepared a written warning, which she delivered to Hernandez on
November 2, 2012. (MSJ Resp., Ex. 22; MSJ Resp., Ex. 23 at 1.) In response to
Hernandez’s question about whether she would be fired, Montalvo told her that “this
could lead up to . . . termination of your employment,” as the written warning stated.
2
Tydings testified during her deposition that she never reached out to Hansen to
investigate the dinosaur comment. (Tydings Dep. at 70:12–13). However,
Aerotek’s Statement of Position in response to the EEOC Charge, which Tydings
prepared, states that Tydings spoke to Hansen during her investigation of
Montalvo’s complaint. (MSJ Resp., Ex. 12 at 4.)
4
(Montalvo Dep. at 265:25–266:2.)
On the same day, a coworker named Steven called Cochran to tell her
that Hernandez was crying because Montalvo had showed Hernandez Cochran’s
email that suggested termination and because Montalvo suggested that Hernandez
get an attorney and find loopholes to avoid termination.3 (Tydings Dep. at 79:8–17;
Cochran Dep. at 122:14–22.) Although Montalvo and Hernandez denied the
specifics of that conversation, Montalvo was terminated that day. (MSJ Resp., Ex.
17.)
On November 12, 2012, Montalvo filed an EEOC Charge of
Discrimination, which alleged that she had been discriminated against because of
her age and retaliated against because of her report of the discriminatory remark.
(MSJ, Ex. 20.)
On September 26, 2013, Montalvo filed a petition in Texas’s 73rd
Judicial District, Bexar County, naming Aerotek as the sole defendant. (Dkt. # 1,
Ex. 5 at 3.) She asserted claims of age discrimination and retaliation under the
Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.051.
(Id.) Montalvo sought damages for loss of earnings, loss of earning capacity, mental
anguish, and attorney’s fees. (Id. at 8.) On November 1, 2013, Aerotek removed
3
Although Montalvo does not dispute that Steven made this call, both she and
Hernandez dispute that the events that Steven described took place. (MSJ Resp., Ex.
23; Montalvo Dep. at 265:18–19, 268:3–25.)
5
the case to this Court, invoking the Court’s diversity jurisdiction. (Dkt. # 1.)
On July 25, 2014, Aerotek filed a Motion for Summary Judgment (Dkt.
# 16), as well as a Motion to Strike Jury Demand (Dkt. # 17). Montalvo submitted a
response to the Motion to Strike on August 1, 2014 (Dkt. # 20), to which Aerotek
filed a reply on August 8, 2014 (Dkt. # 21). Montalvo submitted a response to the
Motion for Summary Judgment on August 8, 2014 (Dkt. # 22), to which Aerotek
filed a reply on August 16, 2014 (Dkt. # 26).
LEGAL STANDARD
A movant is entitled to summary judgment upon showing that “there is
no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see also Meadaa
v. K.A.P. Enterprises, L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). A dispute is only
genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets this burden, the nonmoving party must come forward with
specific facts that establish the existence of a genuine issue for trial. Distribuidora
Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013)
(quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)).
“Where the record taken as a whole could not lead a rational trier of fact to find for
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the non-moving party, there is no ‘genuine issue for trial.’” Hillman v. Loga, 697
F.3d 299, 302 (5th Cir. 2012) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
In deciding whether a fact issue has been created, “the court must draw
all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.” Kevin M. Ehringer Enters. v.
McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However,
“[u]nsubstantiated assertions, improbable inferences, and unsupported speculation
are not sufficient to defeat a motion for summary judgment.” United States v.
Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of
Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
DISCUSSION
I.
Defendant’s Motion for Summary Judgment
The Court first considers the arguments in Aerotek’s Motion for
Summary Judgment. In its motion, Aerotek contends that Montalvo’s TCHRA
claims fail because: (1) there is no direct evidence of age discrimination; (2) even if
Montalvo could make out a prima facie case under the McDonnell Douglas
burden-shifting framework for circumstantial evidence of discrimination, Aerotek
had a legitimate, non-discriminatory reason for Montalvo’s discharge that Montalvo
7
cannot rebut as pretext; and (3) Montalvo cannot establish her prima facie case of
retaliation. (MSJ 3–20.) The Court considers each argument in turn.
At the outset, the Court notes that, because TCHRA was modeled after
federal civil rights law and is intended to coordinate state law with federal law in
employment discrimination cases, the Texas Supreme Court interprets TCHRA in
light of federal law and the cases interpreting that law. In re United Servs. Auto.
Ass’n, 307 S.W.3d 299, 308 (Tex. 2010). Accordingly, unless the Texas Supreme
Court has held otherwise, courts look equally to federal and state law in evaluating
claims under TCHRA.
A.
Age Discrimination
A plaintiff seeking to prove age discrimination under TCHRA can
proceed under one of two frameworks, based on whether there is direct evidence of
the discrimination. See Quantum Chem. Corp v. Toennies, 47 S.W.3d 473, 476
(Tex. 2001). If the plaintiff can present direct evidence of “discriminatory animus,”
the burden then shifts to the employer to show that “legitimate reasons would have
led to the same decision regardless of any discriminatory motives.” Id.
Alternatively, if the plaintiff does not have direct evidence of
discriminatory animus, she can demonstrate a prima facie case by showing that she
was “(1) a member of the protected class under TCHRA, (2) qualified for . . . her
employment position, (3) terminated by the employer, and (4) replaced by someone
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younger.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 642 (Tex.
2012). Upon making the showing, the burden shifts to the employer to “articulate
some legitimate, non-discriminatory reason” for the termination. Quantum Chem.,
47 S.W.3d at 477. The burden then shifts back to the plaintiff to show that the
stated reason was in fact a pretext for discrimination. Id.
Aerotek argues that Montalvo’s claim fails under either framework
because there is no direct evidence of discrimination and because Montalvo is
unable to rebut Aerotek’s legitimate, non-discriminatory reason for terminating her
with evidence of pretext. (MSJ at 3–17.) Montalvo counters that there is direct
evidence of age discrimination and, even if there is not, she has rebutted Aerotek’s
legitimate, non-discriminatory reason for termination with evidence of pretext.
(MSJ Resp. at 3–10.)
1.
Direct Evidence of Discrimination
To show direct evidence of discrimination arising out of remarks, the
remarks must be “’1) related to the protected class of persons of which the plaintiff
is a member; 2) proximate in time to the complained-of adverse employment
decision; 3) made by an individual with authority over the employment decision at
issue; and 4) related to the employment decision at issue.’ Comments that do not
meet these criteria are considered ‘stray remarks,’ and standing alone, are
insufficient to defeat summary judgment.” Jackson v. Cal-Western Pack’g Corp.,
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602 F.3d 374, 380 (5th Cir. 2010) (quoting Rubinstein v. Adm’rs of Tulane Educ.
Fund, 218 F.3d 392, 400–01 (5th Cir. 2000)); see also Evans v. City of Hous., 246
F.3d 344, 349 (holding that claims of age discrimination under ADEA and TCHRA
“are all evaluated within the same analytical framework”); Murphy v. Uncle Ben’s,
Inc., 168 F.3d 734, 739 (5th Cir. 1999) (“The purpose of TCHRA is to coordinate
and conform with federal law under Title VII and ADEA.”).
Montalvo relies on the statement “[w]e are going to get rid of the
dinosaurs in the company” as direct evidence of discrimination. (MSJ Resp. at 4.)
Aerotek contends that Montalvo cannot establish the first, second, or fourth element
of this test and, accordingly, no direct evidence of age discrimination exists. (MSJ
at 5–7.)
a.
Whether the Comment Was Age-Related
Aerotek relies on the Fifth Circuit case Torrech-Hernandez v. General
Electric Co., 519 F.3d 41 (1st Cir. 2008) to argue that the term “dinosaur” is not per
se age-related and, given the context, Hansen’s remark was not age-related. (MSJ
5–6.) Montalvo argues that the context in which the comments were made in
Torrech-Hernandez was different than the context here, where they were facially
age-related. (MSJ Resp. at 5.)
“In order for an age-based comment to be probative of an employer’s
discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury
10
to conclude without any inferences or presumptions that age was a determinative
factor in the decision to terminate the employee.” Wyvill v. United Cos. Life Ins.
Co., 212 F.3d 296, 304 (5th Cir. 2000). In this context, “direct evidence includes
any statement or document which shows on its face that an improper criterion
served as a basis—not necessarily the sole basis, but a basis—for the adverse
employment action.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th
Cir. 2003). In applying this test, a court can look to the common dictionary
definition of the terms used to assess the directness and ambiguity of the statement.
See Ford v. Potter, No. 3:07-CV-1039-D, 2008 WL 4791511, at *2 (N.D. Tex. Nov.
4, 2008) (relying on dictionary definitions of “youthful” and “vibrant” in
determining whether the remarks were age-related).
Neither the Fifth Circuit nor its district courts have directly addressed
whether a dinosaur comment is age-related under the direct evidence test. The
Western District of Texas once addressed the question in Lewis v. Home Depot
U.S.A., Inc., No. A-06-CA-058-LY, 2007 WL 1100422, at *6 (W.D. Tex. Apr. 10,
2007) under the circumstantial evidence test for discriminatory remarks, which is
less stringent than the direct evidence test. Compare Jackson v. Cal-W. Packaging
Corp., 602 F.3d 374, 380 (5th Cir. 2010) (describing the four-part test for direct
evidence of discriminatory remarks), with Laxton v. Gap Inc., 333 F.3d 572, 583
(5th Cir. 2003) (holding that, to amount to circumstantial evidence of
11
discrimination, a remark must “first, demonstrate discriminatory animus and,
second, be made by a person primarily responsible for the adverse employment
action or by a person with influence or leverage over the formal decisionmaker”).
There, the court found that comments including “[t]he dinosaurs are going away”
and “[t]he dinosaurs are going extinct” were enough to satisfy the test as to whether
discriminatory remarks were circumstantial evidence of discrimination. Id. at *6.
In so finding, the court stated that “referring to people as dinosaurs, as [the
employee] admitted he had done, at the very least hints of discriminatory animus
toward older workers[.]” Id.
In Torrech-Hernandez, which Aerotek points to, the First Circuit
addressed the same question, again under the circumstantial evidence standard.
There, the First Circuit held that an employee’s reference to himself and other
employees as “dinosaurs,” in the context of other statements about age and lack of
energy, as well as age and speed, was a stray remark that did not show evidence of
age-related animus or bias. 519 F.3d at 54–55. In so holding, the court relied on
Merriam-Webster’s definition of dinosaur, which read “impractically large,
out-of-date, or obsolete” and which the court found “comports entirely with [the
employee’s] explanation, corroborated by witnesses, that his statement referred to
the out-dated practices and machines still used in the Puerto Rico factories.” Id. at
55. In a footnote, the court noted that “District courts outside of the First Circuit
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have addressed similar statements when assessing whether the term ‘dinosaur’ is
evidence of pretext,” but concluded that “[t]here is little uniformity among the
courts, however, and the conclusions reached largely are based on the context in
which the statements were made.” Id. at 55 n.8.
Even viewing the evidence in the light most favorable to Montalvo, the
statement “We are going to get rid of the dinosaurs of the company” is not so “direct
and unambiguous” that a reasonable jury could “conclude without any inferences or
presumptions that age was a determinative factor.” Wyvill, 212 F.3d at 304. A jury
would have to draw an inference from the comment to conclude that the comment
was age-related. Accordingly, the statement does not satisfy the direct evidence
test, although such a finding does not preclude consideration of the statement as
circumstantial evidence, as the Court discusses in supra, Part B.
b.
Whether the Remarks Were Related to the Employment
Decision at Issue
Moreover, even if the statement was age-related, it was not related to
the employment decision at issue. The comment was made to a large group in a
context wholly unrelated to Montalvo’s termination. Since the Court must infer that
the dinosaur comment was related to the ultimate decision to fire Montalvo, the
comment is not direct evidence of discrimination. See, e.g., Haglund v. St. Francis
Episcopal Day Sch., 8 F. Supp. 3d 860, 865–66 (S.D. Tex. 2014) (finding that
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comments during a faculty meeting about the expectations for faculty’s use of new
technology, and encouragement to retire if faculty members were unwilling to adopt
that technology, were not related to the decision not to renew a particular teacher’s
contract).
Accordingly, although the dinosaur comment could give rise to an
inference of discrimination, it does not constitute direct evidence of discrimination.
2.
Circumstantial Evidence of Discrimination
Aerotek contends that, even if Montalvo was able to support a prima
facie showing of age discrimination through circumstantial evidence, her claim
nevertheless fails because she cannot rebut Aerotek’s legitimate, non-discriminatory
reason for the termination with evidence of pretext. (MSJ at 8–18.) Because both
parties assume, for the sake of this motion, that Montalvo can make out a prima
facie case of age discrimination under the McDonnell Douglas framework for
circumstantial evidence of discrimination, the Court assumes the same without
ruling on the issue.
a.
Legitimate, Non-Discriminatory Reason
Aerotek contends that Montalvo was terminated for breaching her
obligations as a supervisor and under Aerotek’s confidentiality agreement in the
manner that she handled Hernandez’s discipline, after she had received verbal
counseling and a written warning for unsatisfactory performance and nevertheless
14
failed to improve. (MSJ at 8.)
According to Cochran, immediately after becoming Montalvo’s
supervisor in May 2012, she became aware of Montalvo’s unsatisfactory
performance and began to verbally counsel Montalvo. (MSJ, Ex. 7 ¶ 5.) In June
2012, Cochran verbally counseled Montalvo about unprofessional comments that
she made during a presentation, as well as her nonresponsiveness to certain audits
and her failure to keep track of folders containing personal information. (Id.)
In August 2012, Cochran learned that Montalvo was not attending
leadership meetings, she was not training and developing the Vendor on Premise
community, and there were many data entry errors and issues in the department that
Montalvo oversaw. (Id. ¶ 6.) Accordingly, Cochran took Montalvo to lunch to
discuss the issues with her performance—an event that Cochran considered a verbal
warning. (Id. ¶ 7.) On September 5, 2012, Cochran received a copy of an email
from an Aerotek employee, who had made an anonymous complaint to Hansen
about the way that Montalvo and her team treated him, which Cochran felt
confirmed her observations about Montalvo’s sub-par leadership qualities. (Id. ¶ 8.)
On September 11, 2012, Cochran received a report from a Human Resources
Specialist about Montalvo’s failure, as a supervisor, to appropriately handle a
harassment complaint. (Id. ¶ 9.)
Because Cochran felt that her verbal warnings were not resulting in any
15
change in Montalvo’s behavior, she decided, in consultation with Tydings, to issue
Montalvo a written warning. (Id. ¶ 10.) On September 17, 2012, she received the
warning template from human resources, which she issued on October 2, 2012. (Id.
¶ 12.)
Montalvo’s performance did not improve following the written warning
and Cochran continued to learn of concerns with Montalvo’s performance. (Id.
¶ 16). In fact, Montalvo testified that she did not make any efforts to improve her
performance between October and November 2012:
Q. Did you take any sort of efforts in order to improve your
employment – your performance between October and November
2012?
A. No. I was doing my job, and that was it.
Q. Well, so you didn’t take – you didn’t take, in your mind, any
extraordinary steps or any additional steps between October 2nd and
November 2nd in order to improve your performance.
Ms. Chaney: Objection. Calls for speculation.
The Witness: No. I – I didn’t because I didn’t think I did anything
wrong. My thing was if I had performance issues, why didn’t
anybody speak to me about it before this time?
(MSJ, Ex. 3 at 244:15–245:8.)
Accordingly, Defendant contends that, when Cochran and Tydings
learned of Montalvo’s leadership failure in handling Hernandez’s discipline, they
concluded that termination was appropriate.
b.
Pretext
Although TCHRA and ADEA employ the same analytical framework,
16
they “involve a different causation inquiry at the [pretext] stage of the McDonnell
Douglas analysis.” Reed v. Neopost USA, Inc., 701 F.3d 434, 440 (5th Cir. 2012).
While ADEA requires proof that age was the “but for” cause of the adverse
employment action at the pretext stage of the analysis, TCHRA only requires proof
that age was a “motivating factor” in the decision.4 Id. (quoting Quantum Chem.,
47 S.W.3d at 480). However, the Texas Supreme Court has made clear that, in
demonstrating pretext, the plaintiff bears the burden to show that the proffered
reason is “false, and that discrimination was the real reason”: merely showing that
the reason is false is insufficient to meet the plaintiff’s burden. Wal-Mart Stores,
Inc. v. Canchola, 121 S.W.3d 735, 741 (Tex. 2003) (quoting St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 515 (1993)); see also Baker Hughes Oilfield Operations,
Inc. v. Williams, 360 S.W.3d 15, 23 (Tex. App.—Hous. [1st] 2011) (“even if the
evidence could be sufficient to support an implied finding that the reasons cited by
4
Defendant argues that Montalvo cannot succeed on a mixed-motive claim because
she has no direct evidence of discrimination. (MSJ Reply at 8 n.5 (citing Quantum
Chem., 47 S.W.3d at 476–77; Reber v. Bell Helicopter Textron, Inc., 248 S.W.3d
853, 857 (Tex. App.—Ft. Worth 2008).) Although it is true that the Texas Supreme
Court calls direct evidence cases “mixed-motive cases” and circumstantial evidence
cases “pretext cases,” Quantum Chemical makes clear that the “motivating factor”
standard of causation is the standard of causation for assessing pretext in a TCHRA
unlawful employment practice regardless of the type of evidence upon which the
plaintiff relies. 47 S.W.3d at 479–80; see also Reed, 701 F.3d at 440; Pineda v.
United Parcel Serv., Inc., 360 F.3d 483, 487–89 (5th Cir. 2004) (finding that
Quantum Chemical’s holding regarding the causation standard was limited to
TCHRA cases alleging discrimination based on race, color, sex, national origin,
religion, age, or disability).
17
the employer for the employee’s termination are false, the employee still bears ‘the
ultimate burden’ to prove that the employer discriminated against him because of
[the protected characteristic]”).
Montalvo offers several reasons that Aerotek’s legitimate,
non-discriminatory reason for her termination is pretextual and that age was a
motivating factor for her termination. (MSJ Resp. at 6–10.) First, she argues that
Aerotek’s workforce statistics show an underrepresentation of employees over the
age of forty. (Id. at 9–10.) Second, she argues that she presented evidence to show
that the Hernandez incident did not occur as Aerotek describes. (Id. at 7.) Third,
she argues that her performance evaluations from 2009–2012 lack any mention of
poor performance and that none of the verbal counseling that Aerotek refers to is
documented. (Id. at 10.)
i.
Workforce Statistics
Montalvo argues that the employee rosters produced by Aerotek during
discovery show “a gross under-representation of employees in the protected class,”
with only one out of seventy-six employees in the Central Region’s CSS roster older
than Montalvo and only three older than forty (including Montalvo). (MSJ Resp. at
9.) Additionally, Montalvo argues that the statistics evidence “an extremely young
workforce,” where ninety-seven of Aerotek’s 133 employees in the Central
Region’s Field Support Group (73%) were between the ages of twenty and thirty.
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(Id.) She contends that this evidence “demonstrate[s] a corporate mentality that is in
lockstep with Hansen’s dinosaur comment.” (Id.) Aerotek counters that statistical
evidence is insufficient to show discriminatory motive in an individual disparate
treatment case. (MSJ Reply at 8–9.)
A plaintiff alleging discrimination under a disparate treatment theory
can present statistics as part of a pretext showing. See Quantum Chem., 47 S.W.3d
at 481–82 (finding statistical evidence that older engineers had higher turnover than
younger counterparts, in combination with past satisfactory performance evaluation,
were probative to show pretext). However, “more than statistics are usually
necessary to rebut an employer’s strong showing of a legitimate, non-discriminatory
reason for discharging a particular employee.” Bauer v. Albemarle Corp., 169 F.3d
962, 968 (5th Cir. 1999); see also Walther v. Lone Star Gas Co., 977 F.2d 161, 162
(5th Cir. 1992) (“We have recognized that gross statistical disparities resulting from
a reduction in force or similar evidence may be probative of discriminatory intent,
motive or purpose. Such statistics might in an unusual case provide adequate
circumstantial evidence that an individual employee was discharged as part of a
larger pattern of layoffs targeting older employees. This is not to say that such
statistics are enough to rebut a valid, non-discriminatory reason for discharging a
particular employee.”).
To be probative, statistics cannot be devoid of context; the surrounding
19
facts and circumstances dictate the value of the statistical information. Compare
Cheatham v. Allstate Ins. Co., 465 F.3d 578, 583 (5th Cir. 2006) (finding that
statistics were not probative because they were devoid of context, where the
statistics showed that pre-law suit, only two out of ten new hires were over forty and
post-law suit, four out of eleven new hires were over forty), and Conlay v. Baylor
Coll. of Med., 688 F. Supp. 2d 586, 595 (S.D. Tex. 2010) (finding that statistical
evidence that no females had been hired for any of seven openings in the prior five
years was insufficient to show pretext because the plaintiff “offered no proof of the
make-up of the selection pool, beyond the bare assumption that an unspecified
number of females in Baylor’s clinical departments were qualified to be chairs”),
with Quantum Chem., 47 S.W.3d at 482 (finding that statistical evidence that older
engineers had a much higher rate of turnover than younger engineers was probative
in conjunction with other evidence of pretext).
Montalvo provides two categories of statistics in support of her pretext
showing: the ages of all of the employees in her CSS position throughout the
company, and the ages of all of the employees in the Central Region’s Field Support
Group. (Resp., Ex. A ¶¶ 14–15.) However, both sets of statistics are devoid of
context. With regard to the CSS data, it is undisputed that the position was one level
above entry-level. Without information about the ages of individuals applying for
the CSS role or information about the ages of those promoted and/or terminated
20
from that role, the ages of the cohort provide no probative value as to pretext.
Similarly, the ages of the employees in the Central Region’s Field Support Group
are not probative without context. According to Montalvo’s factual statement, the
Field Support Group consisted of Customer Service Associations, On-Premise
Administrators, and Administrative Assistants. (Id., Ex. A ¶¶ 2, 4.) At the hearing,
Aerotek noted that this cohort is made up of relatively low-level positions. Without
information about the ages of individuals promoted and/or terminated from this
cohort, the Court cannot make any meaningful judgment about the probative value
of the statistics.5
In sum, the statistics provide no information as to a pattern of
terminations that Montalvo was a part of, nor do they establish anything with regard
to her in particular, other than that there were not many people over the age of 40 in
the particular positions represented by the statistics. Without any additional context
for these statistics, they are not probative as to pretext in her particular case.
ii.
Montalvo’s Performance History and the Hernandez
Incident
Additionally, Montalvo rebuts Aerotek’s reliance on the Hernandez
5
The Court notes that this is not one of the “rare” situations where raw data tells the
Court something meaningful. If, for example, the statistics showed that only a small
percentage of the entire company was over the age of 40, the low number, on its
own, might serve some probative value as to pretext. However, this is not the type
of data that Montalvo provides, and the data that she does provide requires some
context to create probative value.
21
incident by presenting evidence to show that the Hernandez incident did not occur
as Aerotek described. (MSJ Resp. at 7.) Montalvo further contends that, to the
extent Aerotek honestly believed that Montalvo engaged in the behavior alleged,
that belief was a result of an inappropriate investigation. (Id. at 8.) Finally,
Montalvo argues that her performance evaluations from 2009–2012 show high
performance and that she did not receive the warnings Cochran testifies about, as
evidenced by the lack of documentation of those sessions in her employee file.
(MSJ Resp. at 10.)
Aerotek responds that, even if Montalvo disagrees with the
investigation into the Hernandez incident, Aerotek had a good faith and reasonable
basis for believing that Montalvo engaged in inappropriate conduct because of the
initial report and the interview responses of Montalvo and Hernandez. (“MSJ
Reply,” Dkt. # 26 at 7.) Additionally, Aerotek argues that Montalvo’s positive
performance evaluations from past supervisors do not undermine Cochran’s
evaluation of Montalvo’s performance after she became Montalvo’s supervisor in
May 2012. (MSJ at 11–12.) In support, Aerotek points to two cases from the Third
and Tenth Circuits that hold that past performance evaluations that show good
performance are insufficient, on their own, to make a showing of pretext. (MSJ at
11 (citing Roberts v. Int’l Bus. Machines Corp., 733 F.3d 1306, 1309 (10th Cir.
2013); Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991), overruled in part
22
on other grounds by St. Mary’s Honor Ctr., 509 U.S. 502).)
“The issue at the pretext stage is whether [the employer’s] reason, even
if incorrect, was the real reason for [the employee’s] termination.” Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002); accord Canchola, 121 S.W.3d
at 741. Accordingly, evidence of past performance can, in certain circumstances, be
used as evidence to rebut an employer’s legitimate, non-discriminatory reason for
termination as pretext. See Quantum Chem., 47 S.W.3d at 481–82 (finding past
satisfactory performance evaluations, in combination with statistical evidence that
older engineers had higher turnover than younger counterparts, was enough to show
pretext); see also Atkinson v. Denton Pub. Co., 84 F.3d 144, 149 (5th Cir. 1996)
(finding that a lack of negative performance evaluations or warnings about
performance and positive verbal feedback within a month of termination, coupled
with other evidence of pretext, was sufficient to rebut the employer’s reason for
termination that plaintiff was fired for poor job performance). But see Machinchick
v. PB Power, Inc., 398 F.3d 345, 354–55 (5th Cir. 2005) (finding that lack of any
verbal or written warnings, paired with verbal compliments on work, were
insufficient to rebut the proffered termination reason that the plaintiff failed to adapt
to the company’s new marketing plan).
“In cases in which an employer discharges an employee based on the
complaint of another employee, the issue is not the truth or falsity of the allegation,
23
but ‘whether the employer reasonably believed the employee’s allegation and acted
on it in good faith.’” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th
Cir. 2010); accord Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 818
(Tex. App.—Hous. [1st] 2012), review denied. This is because “[m]anagement does
not have to make proper decisions, only non-discriminatory ones.” Bryant v.
Compass Grp. USA Inc., 413 F.3d 471, 477–78 (5th Cir. 2005); accord Chandler,
376 S.W.3d at 818.
Alone, “a dispute in the evidence concerning . . . job performance does
not provide a sufficient basis for a reasonable factfinder” to find that the proffered
termination reason is pretextual. Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th
Cir. 1991); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 440 n.4 (5th Cir.
2012) (“Reed’s denial of wrongdoing, standing alone, is insufficient to create a fact
issue”). However, a dispute in the evidence, combined with other evidence about
the decision’s discriminatory motivation, can be enough to show pretext. See Ion v.
Chevron USA, Inc., 731 F.3d 379, 393–94 (5th Cir. 2013).
In Jackson, which Aeroteks points to in support of its argument, the
Court found that the plaintiff had failed to rebut the employer’s legitimate,
non-discriminatory reason for his termination: that the company believed that he
was violating its sexual harassment policy. 602 F.3d 374, 379 (5th Cir. 2010). In so
holding, the Court noted that the company’s conclusion arose out of evidence from
24
several employees, as well as an internal and external investigation, and the only
evidence that Jackson presented in rebuttal was his own affidavit that he did not
behave inappropriately. Id.; see also LeMaire v. La. Dep’t of Transp. & Dev., 480
F.3d 383, 391 (5th Cir. 2007) (finding that the plaintiff’s mere dispute of the
underlying facts to argue that the employer made the wrong decision in terminating
him, standing alone, was insufficient to show pretext in the retaliation context);
Canchola, 121 S.W.3d at 740 (finding that the plaintiff’s disagreement with the
quality of the investigation into the harassment complaint was insufficient to show
pretext without other evidence showing that the termination was motivated by
disability).
The Court subsequently distinguished Jackson in Ion Chevron, where
the Court found that, for summary judgment purposes, the plaintiff succeeded in
rebutting the employer’s legitimate, non-discriminatory reason for his termination:
that the termination was based on the plaintiff’s unexcused absences and poor
performance. 731 F.3d at 392–93. In so finding, the Court noted that the plaintiff
did not rely “solely on his own statements denying [the company’s] allegations,” but
additionally presented an email from the General Manager with suspect statements
and highlighted the temporal proximity between the time that email was sent and
when the plaintiff was terminated. Id. at 394; see also Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999) (finding that plaintiff’s dispute of
25
the facts cited for her termination, in combination with the suspicious timing of her
termination and other evidence of pretext, was sufficient to rebut the legitimate,
non-discriminatory reason in the retaliation context for summary judgment
purposes).
In addition to Montalvo’s own disagreement with the characterization
of her performance, she presents an affidavit from Hernandez, which attests that
Montalvo never showed her the email from Cochran, as well as performance
evaluations from 2009–2012, which rate Montalvo as meeting or exceeding
expectations in every category of performance. (MSJ Resp., Ex. 7; id., Ex. 23.)
Montalvo also presents evidence that her termination occurred within two months of
Hansen’s dinosaur comment. 6 (MSJ Resp. at 5.)
Hernandez’s testimony that Montalvo never showed her the email from
Cochran is not probative as to pretext. What actually occurred is not at issue.
Instead, the issue is whether the employer reasonably believed Steven’s complaint
and acted in good faith. Aerotek contends that when Tydings and Cochran
investigated the incident, Montalvo said that she didn’t show Hernandez the email,
but that Hernandez may have seen it if she looked at her computer. (Cochran Dep.
At 124:9–16; Tydings Dep. at 180:20–181:12.) Tydings considered this response
6
The statistical evidence that Montalvo presents is not probative of pretext, as
discussed above.
26
suspicious and because she didn’t believe her, she and Cochran concluded that
Montalvo’s action was the final straw in a continuing course of inadequate conduct
and termination was the appropriate course of action. (Tydings Dep. at 181:6–8,
184:10–17.) Given Montalvo’s history of inadequate conduct, it was reasonable for
Tydings and Cochran to believe Steven’s complaint. There is no evidence that their
response was in bad faith. Accordingly, Hernandez’s testimony does not help
resolve the pretext issue.
Nor are the performance evaluations probative as to pretext. Cochran
did not become the Regional Field Manager for the Central Region until May 2012
and, as such, she did not complete the mid-year 2012 evaluation for Montalvo.
(Cochran Dep. at 23:1–14.) Instead, Leigh Belt Coursey conducted the mid-year
2012 performance evaluation, which was issued sometime after June 2012. (MSJ
Resp., Ex. 7.) Evidence as to a previous supervisor’s evaluation of performance is
not probative as to Cochran’s perception of Montalvo’s performance, which is the
issue here. Accordingly, the performance evaluations do not help to resolve the
pretext question.
Therefore, the only evidence that Montalvo can bring to support a
showing of pretext is the dinosaur comment, 7 its temporal proximity to her
7
Although no party makes argument on this issue, the dinosaur comment is
probative of pretext. The test for whether a comment can be probative of
27
termination, and her personal disagreement with the characterization of her
circumstantial evidence of discrimination at the pretext stage is less stringent than
the test for whether a comment is direct evidence of discrimination: “The remark
must, first, demonstrate discriminatory animus and, second, be made by a person
primarily responsible for the adverse employment action or by a person with
influence or leverage over the formal decisionmaker.” Laxton v. Gap Inc., 333 F.3d
572, 583 (5th Cir. 2003); see also Russell v. McKinney Hosp. Venture, 235 F.3d
219, 225 (5th Cir. 2000) (finding that remarks, which did not meet the four-part test
for direct evidence of discrimination, could nevertheless serve as circumstantial
evidence of discrimination).
Although Hansen’s comment was not so direct and unambiguous that a
jury could conclude that it was age-related without any inference, the reference to
dinosaurs “at the very least hints of discriminatory animus toward older workers.”
See Lewis, 2007 WL 1100422, at *8.
Additionally, Hansen, who initially made the remark, had leverage over
Healy (his subordinate). In terms of supervisory authority, the evidence in the
record establishes the following: (1) Montalvo’s direct supervisor was Cochran;
(2) Healy’s direct supervisor was Hansen; and (3) neither Cochran nor Tydings
directly reported to Healy or Hansen.
On the day of the termination, both Hansen and Healy were in the San
Antonio office. Hansen was in town for a one or two night trip. (MSJ, Ex.
107:11–18.) Hansen testified that he was not informed about Montalvo’s pending
termination until Healy was driving him to the airport. (Id. at 105:23–106:16.)
Hansen also testified that he could not have had an opinion about Montalvo’s
termination because he was not aware of the cause of the termination. (Id. at 106:7–
16.)
The factual record is unclear as to the individuals involved in the
termination decision. However, taking the evidence in the light most favorable to
Montalvo, “Mr. Healy, Ms. Cochran, and Ms. Tydings agreed that Ms. Montalvo’s
actions were inappropriate and in light of her recent Written Warning and continued
unsatisfactory work performance with no improvements, they agreed to terminate
Ms. Montalvo that afternoon.” (MSJ Resp., Ex. 12 at 5.)
Because Hansen was Healy’s direct supervisor, he had influence over
Healy, who—taking the evidence in the light most favorable to the plaintiff—was
involved in executing the employment action.
Accordingly, the dinosaur comment can be probative of pretext at the
summary judgment stage.
28
performance. Although this evidence is not substantial, it is in line with precedent
finding sufficient evidence of pretext to avoid summary judgment. See Ion
Chevron, 731 F.3d at 392–93; Shackelford, 190 F.3d at 409. The evidence raises a
question of fact as to whether the reason proffered by Aerotek is false and whether
Aerotek was in fact motivated by a discriminatory animus. See Little v. Dep’t of
Justice, 177 S.W.3d 624, 632 (Tex. App.—Hous. [1st Dist.] 2005) (noting that a
plaintiff’s prima facie case, combined with evidence showing the proffered
non-discriminatory reason is false, can be sufficient to meet the burden).
Accordingly, the Court DENIES Aerotek’s Motion for Summary Judgment with
regard to the age discrimination claim.
B.
Retaliation
Aerotek also contends that Montalvo cannot succeed on a claim that
she was discharged in retaliation for her complaint about Hansen’s dinosaur
comment because (1) there is no direct or circumstantial evidence that establishes
the requisite causal connection between the report and Montalvo’s termination; and
(2) regardless, Montalvo cannot rebut Aerotek’s legitimate, non-retaliatory reason
for her termination. (MSJ at 18.) Montalvo counters that (1) the timing between the
report and the termination is sufficient to infer the allegation; and (2) the same
evidence set forth in her discrimination claim also establishes that the
non-retaliatory reason for termination is pretext. (MSJ Resp. at 11.)
29
Under TCHRA, it is unlawful for an employer to retaliate “against a
person who . . . (1) opposes a discriminatory practice; (2) makes or files a charge;
(3) files a complaint; or (4) testifies, assists, or participates in any manner in an
investigation, proceeding, or hearing.” City of Waco v. Lopez, 259 S.W.3d 147,
150 (Tex. 2008). To demonstrate a prima facie case of retaliation under TCHRA, a
plaintiff must show that (1) she is engaged in a protected activity; 2) an adverse
employment action occurred; and 3) a causal link existed between the protected
activity and the adverse action. Pineda, 360 F.3d at 487. Upon making such a
showing, the burden shifts to the employer to proffer a legitimate, non-retaliatory
reason for the adverse employment action. Id. Just like in the discrimination
context, the burden then shifts back to the plaintiff to show that the proffered reason
is a pretext for retaliation. Id.
Because neither party disputes that Montalvo can show the first two
elements of the prima face case, the Court analyzes only whether Montalvo can
establish the third element of her prima facie case and, if so, whether she can rebut
Aerotek’s legitimate, non-retaliatory reason for termination.
1.
Whether a Causal Link Existed
The final hurdle in demonstrating a prima facie case of retaliation is
showing that there was a causal link between the protected action and the adverse
employment action. “In order to establish the causal link between the protected
30
conduct and the illegal employment action as required by the prima facie case, the
evidence must show that the employer’s decision to terminate was based in part on
knowledge of the employee’s protected activity.” Sherrod, 132 F.3d at 1122.
However, “the ‘causal link’ required in prong three of the prima facie case for
retaliation is not as stringent as the ‘but for’ standard.” Raggs v. Miss. Power &
Light Co., 278 F.3d 463, 471 (5th Cir. 2002). For prima facie purposes, “[c]lose
timing between an employee’s protected activity and an adverse action against [her]
may provide the ‘causal connection’ required to make out a prima facie case of
retaliation.” Evans v. City of Hous., 246 F.3d 344, 354 (5th Cir. 2001).
In the case at hand, Montalvo’s termination followed the report of her
complaint by only one month. This is sufficient to establish a causal connection for
the purposes of Montalvo’s prima facie case of retaliation. See Evans, 246 F.3d at
354 (noting that a time lapse of up to four months between the protected activity and
the adverse employment action was sufficient to show causality for the prima facie
case).
2.
Whether Aerotek’s Proffered Non-Retaliatory Reason for
Termination is Pretext
As its legitimate, non-retaliatory reason for termination, Aerotek argues
that it terminated Montalvo because of her poor performance, which culminated in
the Hernandez incident—the same reason argued in rebuttal of Montalvo’s
31
discrimination claim. (MSJ at 18–20.) For the same reasons argued with regard to
discrimination, Montalvo argues that the proffered justification is pretext for
discrimination. (MSJ Resp. at 11.)
As discussed above, Montalvo has carried her burden in showing that
there is a fact question as to whether Aerotek’s reason for termination was
pretextual. Accordingly, the Court DENIES Aerotek’s Motion for Summary
Judgment with regard to Montalvo’s retaliation claim.
II.
Motion to Strike Jury Demand
In its Motion to Strike Jury Demand, Aerotek argues that Montalvo’s
jury demand must be stricken because her employment agreement with Aerotek
includes an express waiver of the right to trial by jury. (“Mot. Strike,” Dkt. # 17 at
1.) Montalvo counters that Aerotek’s reading of the wavier is overly broad and does
not apply to claims of discrimination or retaliation. (“Mot. Strike Resp.,” Dkt. # 20
at 1.)
The waiver provision at issue states: “By executing this agreement, the
parties hereto knowingly and willingly waive any right they have under applicable
law to a trial by jury in any dispute arising out of or in any way related to this
agreement or the issues raised by any such dispute.” (Mot. Strike, Ex. C at 5.) The
provision sits beneath the heading “11. Waiver of Right to Jury Trial.” (Id.) The
other headings in the agreement are:
32
1. Agreement of Employment
2. Term of Employment
3. Covenant Not to Compete
4. Indemnification & Hold Harmless
5. Covenant Not to Divulge Confidential Information
6. Return of Records
7. Remedies; Damages
8. Waiver of Breach
9. Situs of Agreement; Jurisdiction
10. Severability
11. Waiver of Right to Jury Trial
12. Entire Agreement
(Id. at 1–6.) The agreement does not contain information about Aerotek’s
anti-discrimination and anti-retaliation policies; that information is contained in the
Employee Handbook, which has no express provision regarding jury waiver. (Mot.
Strike Resp., Ex. A.)
Montalvo argues that a dispute arising out of Aerotek’s discrimination
and/or retaliation is not a matter arising out of or related to the employment
agreement and therefore is outside the scope of the waiver provision. (Mot. Strike
Resp. at 2–4.) Aerotek counters that the Employee Handbook, which contains the
anti-discrimination policies, is how the company established Montalvo’s
responsibilities as an employee, which are incorporated into the employment
agreement by the language “[t]he scope of Employee’s employment, including
duties, assignment, position and all responsibilities, shall be as established by onsite
from time to time, whether orally or in writing.” (“Mot. Strike Reply,” Dkt. # 21 at
33
2.) Aerotek also contends that, by challenging her termination as unlawful, she
challenges paragraph two of the employment agreement, which states that the
employee is an at-will employee, whose term of employment will continue until
terminated by either party. (Id.) Accordingly, the dispute is a legal question as to
how broadly the Employment Agreement’s Jury Waiver provision should be read.
In support of a narrow reading, Montalvo cites to case law that holds
that “[t]he right of jury trial is fundamental, and courts must indulge every
reasonable presumption against waiver.” (Mot. Strike Resp. at 4 (citing Jennings v.
McCormick, 154 F.3d 542, 545 (5th Cir. 1998)).) In response, Aerotek argues that
courts generally find that broad contractual language applies to a spectrum of
disputes, both in the context of jury waivers and arbitration agreements. (Mot.
Strike Reply at 3–5.)
The plain language of the jury waiver provision states that the signatory
waives all rights to a trial by jury in any dispute arising out of the agreement.
Because the agreement is a general employment agreement, a dispute related to
unlawful termination, by its nature, arises out of the agreement. While the
agreement does not specifically mention disputes involving discrimination, it does
not need to: that particular dispute is encompassed in the broad category of disputes
arising out of Montalvo’s employment with Aerotek. Although “[t]he right of jury
trial is fundamental” and “courts [must] indulge every reasonable presumption
34
against waiver,” this is not a circumstance where such a presumption is reasonable,
given the language of the contract. See Jennings, 154 F.3d at 545 (5th Cir. 1998).
Accordingly, the waiver is valid if Montalvo made that waiver
knowingly and voluntarily:
In the context of an express jury waiver, the majority of federal courts
have held that the party seeking enforcement of the waiver has the
burden of showing that the consent of the party making the waiver
was knowing, voluntary, and intelligent, but a circuit split exists on
this issue. Although the Fifth Circuit has not addressed who carries
the burden, the Court concludes that the party seeking to enforce the
waiver has the burden. Regardless of who shoulders the burden, the
factors used by federal courts to decide whether a waiver was made
knowingly, voluntarily, and intelligently include: (1) whether there
was gross disparity in bargaining power between the parties; (2) the
business or professional experience of the party opposing the waiver;
(3) whether the opposing party had an opportunity to negotiate
contract terms; and (4) whether the clause containing the waiver was
inconspicuous.
RDO Fin. Servs. Co. v. Powell, 191 F. Supp. 2d 811, 813–14 (N.D. Tex. 2002).
Montalvo argues that, because the agreement said that it was the
“’entire agreement,’ she believed she was agreeing to what’s stated in the
agreements and nothing more.” (Mot. Strike Resp. at 3–4.) Accordingly, she
contends that the waiver was not knowing or voluntary. (Id.) Montalvo’s argument
is unavailing because it relies on the interpretation of the contract, which the Court
has concluded waived the right to a jury for any dispute arising out of Montalvo’s
employment with Aerotek.
35
Instead, whether Montalvo’s waiver was knowing and voluntary
depends on the factors identified above: bargaining power, business acumen,
negotiability, and conspicuousness of the waiver provision. These factors weigh in
favor of finding that Montalvo knowingly and voluntarily waived her right to jury
trial. The provision was conspicuously set apart from the other provisions in the
contract with a heading reading “waiver of right to jury trial” in all capital letters
that were bolded and underlined. (Mot. Strike, Ex. C.) Montalvo attended college
and had sufficient business acumen to serve as an employee with Aerotek for fifteen
years. (Mot. Strike, Ex. A at 14:14–15:17, 98:3–17.) Merely because she did not
negotiate her contract or because there was the inherent disparity in bargaining
relationships that is the consequence of employer-employee relations does not
render her waiver involuntary. See Westside-Marrero Jeep Eagle, Inc. v. Chrysler
Corp., 56 F. Supp. 2d 694, 707, 709 (E.D. La. 1999) (finding that “[s]imply because
the[y] did not attempt to negotiate the provisions does not mean that, in fact, the
waiver or other terms in the contracts were not negotiable” and that “[t]o invalidate
a waiver provision . . . the bargaining differential must be the kind of ‘extreme
bargaining disadvantage’ or ‘gross disparity in bargaining position’ that occurs only
in certain exceptional situations”). Therefore, the factors show that Montalvo’s
waiver was knowing and voluntary.
Accordingly, the Court finds that Montalvo contractually waived her
36
right to jury trial and GRANTS Aerotek’s Motion to Strike Jury Demand (Dkt.
# 17).
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s Motion for
Summary Judgment (Dkt. # 16) and GRANTS Defendant’s Motion to Strike Jury
Demand (Dkt. # 17).
IT IS SO ORDERED.
DATED: San Antonio, Texas, November 25, 2014.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
37
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