Davis v. Woodlands Religious Community, Inc., No. 4:2013cv01761 - Document 33 (S.D. Tex. 2014)
Court Description: MEMORANDUM AND ORDER Granting 29 MOTION for Summary Judgment (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
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Davis v. Woodlands Religious Community, Inc. Doc. 33 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION NOLAN DAVIS, Plaintiff, v. WOODLANDS RELIGIOUS COMMUNITY, INC. d/b/a INTERFAITH OF THE WOODLANDS, Defendant. § § § § § § § § § § § CIVIL ACTION NO. H-13-1761 MEMORANDUM AND ORDER Pending is Defendant Woodlands Religious Community, Inc. d/b/a Interfaith of the Woodlands' Motion for Summary Judgment (Document No. 29). After carefully considering the motion, response, and applicable law, the Court concludes as follows. I. Plaintiff Nolan Davis African-American man, was Background1 ("Plaintiff"), hired as who pleads he an employment is an counselor by Defendant Woodlands Religious Community, Inc. d/b/a Interfaith of 1 Virtually all of the facts in the case come from Defendant, and are uncontroverted. Plaintiff's evidence consists of only a two-page affidavit and three pages of staff productivity records, upon which Plaintiff relies to argue that Defendant's reason for terminating him was pretextual. Plaintiff in his Response presents no evidence of discrimination or retaliation as a predicate for arguing that the declared nondiscriminatory basis for his termination was pretextual. Dockets.Justia.com the Woodlands ("Defendant") on April 13, 2009, when Plaintiff was 55 years old. 2 Defendant is a non-profit heavily on grants and donations. 3 contract year was reduced by agency that relies Defendant's funding for the 2012 approximately fourteen percent, causing Defendant to close its Spring Branch Career Office and to restructure reduction and in reduce its workforce, staff Defendant in 2011.4 terminated As part 21 of its employees, including Plaintiff on September 1, 2011, at which time Plaintiff was 58 years old. 5 Of the employees 21 laid off, eight were Hispanic, seven were Caucasian, and six were African-American. 6 Defendant maintains that the employees to be laid off were selected based on their cumulative scores on performance reviews, and that Plaintiff's mid-year review was below par.7 Plaintiff testifies that Defendant's declared reason for choosing him for termination based on his performance reviews was pretextual, pointing out that Defendant hired a new employment counselor two weeks after Plaintiff's termination, and conclusorily stating that 2 Document No. 29, ex. 2 3 Id., ex. 2 ~ ~ 3; id., ex. 3. 6. 4 Id. i id. , ex. 6 . 5 Id. , ex. 2 ~ 5 i id. , ex. 5 . 6 Id. , ex. 2 ~~ 7-8. 7 Id. , ex. 2 ~~ 7, 12. 2 the performance review "was orchestrated to ensure I would score poorly. ,,8 After Employment receiving a Opportunity right to sue Commission / 9 letter Plaintiff from the filed Equal this suit alleging race discrimination under Title VIII age discrimination under the Age Discrimination in Employment Act retaliation. 10 (the "ADEA") Defendant moves for summary judgment l I and arguing that Plaintiff has no evidence that he was discriminated against because of his age or race or l that he was retaliated against for exercising his protected rights. 11 II. Rule 56(a) Legal Standard provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a mat ter of law." this burden I the FED. R. CIV. P. 56(a) to burden shifts Once the movant carries nonmovant the to show that Document No. 31-1 ~~ 3 4. Plaintiff further testifies that only a single employment counselor was able to meet the purported benchmark of 169-180 direct job placements annually that Plaintiff s annual total of 72 direct placements exceeded the performance of all but three employment counselors and that four employment counselors had fewer than 56 placements and were not fired. Id. ~~ 16-19. 8 1 I I I 9 Document NO.6. 10 Document No. 5 (Pl. 11 Document No. 29. I S Am. Compl.). 3 summary judgment should not be granted. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Id. "[T]he nonmoving party must set forth specific facts showing the existence of a 'genuine' case." issue concerning every essential component of its "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: particular parts of materials in the record . (A) citing to or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. Cry. P. 56 (c) (1). "The court need consider only the cited materials, consider other materials in the record." but it may Id. 56(c) (3). In considering a motion for summary judgment, the district court must view the evidence "through the prism of the substantive evidentiary burden." 2505, 2513 (1986). Anderson v. Liberty Lobby, Inc., 106 S. Ct. All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Corp., 106 S. Ct. Matsushita Elec. 1348, 1356 (1986) Indus. Co. v. Zenith Radio "If the record, viewed in this light, could not lead a rational trier of fact to find" for the nonmovant, then summary judgment is proper. 4 Kelley v. Price- Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993). On the other hand, if "the factfinder could reasonably find in [the nonmovant' s] favor, then summary judgment is improper." Id. Even if the stan- dards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that "the better course would be to proceed to a full trial." III. A. Anderson, 106 S. Ct. at 2513. Analysis Race Discrimination Plaintiff alleges that "Defendant intentionally discriminated against Plaintiff because of his race in violation of Title VII by promoting two non-African-American males of lesser qualifications and experience than Plaintiff to the position of Career Office Supervisor," that "Defendant subsequently promoted a non-AfricanAmerican female to the position of Staffing Specialist," and that "al though there were recent hires, Plaintiff was told he was terminated due to cutbacks. ,,12 Title discharging, VII proscribes an employer from refusing to hire, or otherwise discriminating against any individual "wi th respect to his compensation, terms, conditions, or privileges of § employment" 2000e-2 (a) (1) 12 because of that individual's race. 42 U.S.C. The Title VII inquiry is "whether the defendant Document No. 5 ~ 8. 5 intentionally discriminated against the plaintiff." Alltel Info. Servs. , 373 F.3d 647, 651 (5th Roberson v. Cir. 2004) . Intentional discrimination can be established through either direct or circumstantial evidence. F.3d 212, 219 Wallace v. Methodist HOsp. Sys., 271 (5th Cir. 2001). Plaintiff disavowed knowledge of any direct evidence of discrimination,13 and hence his claim can be analyzed only by using the framework set forth in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). Under this framework, Wallace, 271 F.3d at 219. a plaintiff must first establish a prima facie case of discrimination. Id. Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate non-discriminatory reason for its actions. sustains its burden, Id. a legitimate, If the employer the prima facie case is dissolved, burden shifts back to the plaintiff to establish either: the employer's proffered reason is not pretext for discrimination employer's reason, (pretext while true, true, but alternative); is or and the (1) that instead a (2) the is not the only reason for its 13 Plaintiff testified in his deposition that there were no comments made about his ethnicity or race, and that he did not know of any jokes made in his workplace about African-Americans, any emails that were derogatory toward African-Americans, or any comments by supervisors that made him think they were discriminating against African-Americans. Document No. 29, ex. 1 at 38:18-39:5. See also id., ex. 1 at 85:23-86:1 (Q. [Y]ou don't have any personal knowledge specifically linking anyone of [Defendant's management staff] to discriminating against you; is that right? A. Yes, that's true."). 6 conduct, and another "motivating factor" is the protected characteristic (mixed-motive alternative). plaintiff's Id.; Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th Cir. 2007). Where, as here, the Plaintiff alleges pretext, he "must put forward evidence rebutting each of the nondiscriminatory reasons the employer articulates." Wallace, 271 F.3d at 220. In order to establish a prima facie case, Plaintiff must show that he: (1) is a member of a protected class; for his position; (2) was qualified (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or, in the case individuals favorably. of disparate outside her treatment, that protected class similarly were situated treated more Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). Plaintiff in his Response produces no evidence of any less qualified individual outside his race being promoted in his stead. With no evidence of any comparator who received a promotion to a job for which Plaintiff applied and was qualified, Plaintiff's failure to promote claim does not survive summary judgment. Plaintiff's Amended Complaint does not expressly allege that his termination was based on race discrimination. claim arguably may be inferred from Plaintiff's race discrimination claim: were recent hires, the At most, such a final sentence of "Finally, although there Plaintiff was told he was terminated due to 7 cutbacks. Defendants /114 African-American, do not dispute that Plaintiff, is a member of a protected class, as an that he was qualified for his position, or that his termination was an adverse employment argument action. However, or evidence Plaintiff showing that has not presented any similarly-situated employees outside his class were not laid off, and hence has not established a prima facie case of race discrimination. 15 Plaintiff exceeded, counselors in testifies some that cases who were not "[Plaintiff's] greatly, fired, /I those and direct of placements other employment identifies Contina Tyler, Amparo Rosa, Ester Rodriguez, Marsha Hewitt, and Zelinka Deal as such counselors. 16 However, Plaintiff neither argues nor produces evidence that these employees are not African-American,17 or that they were similarly situated to Plaintiff. forest Bank, 665 F.3d 632, 637 (5th See Vaughn v. Wood- Cir. 2011) ( "Disparate treatment occurs where an employer treats one employee more harshly than other 'similarly situated' employees for 14 Document No. 5 ~ 'nearly identical' 8. 15 Plaintiff's Response focuses exclusively on the argument that Defendant's stated reasons for terminating Plaintiff are pre textual , and simply ignores the requirement for showing a prima facie case of discrimination. See Document No. 31. 16 Document No. 31 ~ 18. 17 The uncontroverted evidence is that Zelinka Deal, at least, is African-American. Document No. 29, ex. 2 ~ 23. 8 conduct."). Accordingly, Defendant is entitled to summary judgment on Plaintiff's race discrimination claim. B. Age Discrimination Plaintiff alleges that "Defendant intentionally discriminated against Plaintiff because of his age, 58, in violation of the ADEA by terminating him instead of younger personnel on staff." 18 The ADEA makes it unlawful for an employer to discharge or otherwise discriminate person's age. against See 29 U.S.C. an individual 623 (a) (1) . § because of that "To establish an ADEA claim, '[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial) , that age was the 'but-for' cause of the challenged employer decision." Inc., 610 F.3d 917, 922 (5th Cir. 2010) Moss v. BMC Software, (quoting Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009)). Plaintiff evidence that fails age to was advance the any but-for argument cause of or his produce any termination. Although he argues that Defendant's reason for terminating him was pre textual , his Response makes no mention whatsoever of age. St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2752 (1993) a reason cannot be proved to be unless it is shown both discrimination was 18 the Document No. 5 ~ that real reason was reason.") 9 ("But 'a pretext for discrimination' the 11. See false, (emphasis and that in original). Furthermore, that, Plaintiff affirmatively admitted in his deposition other than his belief that his job performance was better than other people's, "there's no other evidence in [his] opinion to support age."19 [his] claim that Accordingly, [he was] terminated because of [his] Plaintiff has not raised a genuine issue of material fact as to whether his age was the but-for cause of his termination, and Defendant is entitled to summary judgment on Plaintiff's age discrimination claim. C. Retaliation Plaintiff alleges "[a]fter Plaintiff made inquiry regarding another position within the organization, Defendant against him by terminating his employment."20 Complaint contains no explanation Plaintiff's Amended of the purported ex. 1 at 36:23-37:23 ("Q. Did anyone make any comments to you about being old or older? A. No, ma'am. Q. Did anyone ever make jokes in the office about older employees or employees who were older not being able to do a job? A. Not that I know of. Q. Did anyone ever circulate e-mails about wanting to keep a younger workforce? A. Not that I know. Q. Did anyone ever make any references to you that Interfaith wanted a younger workforce? A. Not that I know of. Q. Did anyone at--and I literally mean anyone that you work with at Interfaith. A. Not that I know of. Q. Okay. Was there anything in your work environment on a daily basis that made you think that Interfaith was discriminating against employees who were older? A. Not that I know of. Q. And would you agree with me, Mr. Davis, that other than your belief that your job performance was better than other people's, there's no other evidence in your opinion to support your claim that you were terminated because of your age? A. Not that I know of.") . 19 See Document No. further retaliated 20 Document No. 5 29, ~ 12. 10 retaliation, and neither Plaintiff's Response to Defendant's Motion for Summary Judgment nor Plaintiff's summary judgment evidence mentions position. retaliation or Plaintiff's "inquiry regarding another II Although Plaintiff's Amended Complaint does not identify the law under which his putative retaliation claim arises, 21 "[t] he anti-retaliation provisions of the ADEA and Title VII are similar and 'cases interpreting the latter provision are frequently relied upon in interpreting the former. '" F.3d 1224, 1226 n.1 (5th Cir. Holt v. JTM Indus., Inc., 89 1996) (citation omitted). To establish a prima facie case of retaliation under Title VII or the ADEA, the plaintiff must establish that: (1) he participated in an activity protected by Title VII or the ADEA; an adverse employment action against (2) his employer took him; and (3) a causal connection exists between the protected activity and the adverse employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556- 57 (Title VII); Holt, (5th Cir. 2007) 89 F.3d at 1225-26 (ADEA). Plaintiff has presented no evidence that he opposed discrimination on the basis of race or age or otherwise engaged in any activity protected by Title VII or the ADEA. Serv., Inc., 406 F. App'x 837, 840 See Brown v. United Parcel (5th Cir. 2010) ("Title VII protects only opposition to discrimination based on 'race, color, 21 Defendant treats Plaintiff's retaliation claim as arising under Title VII. Document No. 29-1 at 14-24. 11 religion, § sex, 2000e-2(a) (l))i or 29 national U.S.C. origin.'") § 623(d) (quoting (prohibiting 42 U.S.C. retaliation against employee who "has opposed any practice made unlawful by [the ADEA]" or who "has made a charge, testified, participated in any manner in an investigation, litigation under [the ADEA]"). assisted, or proceeding, or Because Plaintiff has failed to present evidence of retaliation against him based on his engaging in protected activity, Plaintiff's retaliation claim is dismissed. IV. Order For the foregoing reasons, it is ORDERED that Defendant Woodlands Religious Community, d/b/a Interfaith of the Woodlands' (Document No. 29) Inc. Motion for Summary Judgment is GRANTED, and Plaintiff Nolan Davis's claims are DISMISSED with prejudice. The Clerk will enter this Order, providing a correct copy to 71f all parties of record. SIGNED at Houston, Texas, on this fer ct;y of November, 2014. I G WERLEIN, JR. TATES DISTRICT JUDGE 12
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