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United States District Court, W.D. Texas, San Antonio Division

October 21, 2005.

DAVID G. OCAMPO Plaintiff,

The opinion of the court was delivered by: PAMELA MATHY, Magistrate Judge


To: Honorable Fred Biery United States District Judge

Pursuant to the Order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge*fn1 and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1) and rule 1 of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, District of Texas, the following report submitted for your review and consideration.


  The Court has jurisdiction pursuant to 28 U.S.C. § 1332.


  On May 17, 2004, plaintiff David Ocampo commenced the present action in the 131st Judicial District Court, Bexar County, Texas.*fn2 Ocampo is suing defendant Laboratory Corporation of America dba Lab Corp ("LabCorp") for age discrimination, age-based harassment, and retaliation in violation of the Texas Labor Code, §§ 21.001 et seq. ("TCHRA").*fn3 Ocampo is seeking reinstatement to his position and pay grade, back pay, front pay, lost benefits, actual damages, exemplary damages, costs, attorney's fees, and pre and post judgment interest.*fn4 LabCorp filed an answer on June 15, 2004*fn5 and, because the parties are diverse, removed the action to the Federal District Court on June 23, 2005.*fn6 LabCorp filed its first amended answer on October 28, 2004.*fn7 The case was referred to the undersigned on March 21, 2005.*fn8 LabCorp filed a motion for summary judgment on June 15, 2005,*fn9 Ocampo filed a response on August 3, 2005,*fn10 and LabCorp filed a combined reply and motion to strike evidence on August 19, 2005.*fn11


  The following statement of facts is derived from LabCorp's factual background and supporting exhibits*fn12 which Ocampo does not dispute, unless otherwise noted.*fn13

  LabCorp provides clinical laboratory services, including routine testing of blood and tissue samples.*fn14 Thirty-five to forty-five service representatives, or drivers, are employed at LabCorp's San Antonio, Texas distribution department.*fn15 The service representatives drive company cars to make daily deliveries to clients along assigned routes and to retrieve specimens from lock boxes for transport to the laboratory for processing.*fn16 The majority of the service representatives are over the age of forty and, at the relevant time, almost half were older than Ocampo who was forty-eight in 2003.*fn17 At the relevant time, the oldest service representative was seventy-four years old.*fn18 Service representatives were supervised by Chuck Lalli, now age sixty-three, Claudio White, now fifty-seven, and, occasionally, Richard Poirier, now age fifty-six.*fn19 Supervisors reported to Laboratory Manager Sheilah Castillo, now age fifty-eight.*fn20

  Ocampo was employed as a service representative by LabCorp from November 1981 until his separation from the company in May 2004.*fn21 In February 2003, plaintiff was involved in a preventable motor vehicle accident.*fn22 Pursuant to LabCorp policy, when a preventable accident occurs, the employee is required to receive a written warning which effects the performance rating on the employee's annual evaluation.*fn23 Based on his performance evaluation, in March 2003, plaintiff received a 2.25% pay raise, the maximum he could earn under LabCorp's compensation policy.*fn24

  LabCorp requires overtime hours to be kept to a minimum, and routes persistently accruing overtime are reviewed and restructured.*fn25 In October 2003, Ocampo's route was restructured to remove one regular evening stop based on Lalli's observation that the route could not be accomplished in an eight-hour day.*fn26 Lalli estimated the stop added twenty to thirty minutes each night to Ocampo's route.*fn27 Approximately fifteen service representatives had their routes restructured in 2003.*fn28 After the route change, Ocampo continued to accrue overtime on a regular basis, and he was among the top overtime earners in 2003 and 2004.*fn29 White was responsible for scheduling vacation time.*fn30 To provide fair access to the most coveted vacation times, LabCorp guaranteed that the first three persons, regardless of seniority, who requested a specific time period would be allowed to take vacation at that time.*fn31 Ocampo submitted timely requests for, and received, time off at Thanksgiving and Christmas 2002 and New Year 2003.*fn32 Ocampo was not one of the first three employees requesting time off at Thanksgiving and Christmas 2003.*fn33 But, because of a cancellation at Thanksgiving 2003, Ocampo did receive the time off as requested.*fn34 Even though Ocampo was not able to take vacation on all dates of first choice, he received the full amount of vacation time in 2003.*fn35

  During his employment, plaintiff received a copy of LabCorp's employment policy.*fn36 The employment policy reflects that LabCorp does not tolerate discrimination or harassment and that employees were expected to report such conduct to their managers, the local Human Resources representative, or corporate Human Resources.*fn37 Ocampo was aware of the terms of the employment policy.*fn38 LabCorp records do not reflect that Ocampo complained of unlawful harassment or discrimination to a manager or Human Resources representative.*fn39 Nevertheless, on November 24, 2003, Ocampo filed a charge of age and national origin discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights.*fn40 Ocampo specifically complained LabCorp denied him a full merit pay raise and requested vacation days and eliminated his overtime by restructuring his route.*fn41 Ocampo did not discuss his charge of discrimination with anyone at work.*fn42 After his termination, Ocampo told coworkers that he felt he had been the victim of discrimination, but he did not complain to LabCorp management.*fn43 The EEOC issued a right to sue letter on March 9, 2004, and TWC issued a notice of right to file a civil action on March 18, 2004.*fn44

  On April 15, 2004, LabCorp received a call from Allied Institute of Medicine ("Allied"), a new client on Ocampo's route, complaining that specimens in the lock box had not been retrieved.*fn45 Allied was a "blue bag" account, meaning specimen processing required extra care.*fn46 When questioned, Ocampo claimed he had been waved off by an Allied employee and thought meant there were no specimens for pick up.*fn47 Ocampo was counseled for failing to comply with proper procedure, but he was not disciplined.*fn48 The next day, Ocampo went inside Allied's office and approached Medical Assistant Michelle Ramirez about the missed pick up.*fn49 Ramirez complained to LabCorp's account manager, Rachele Heedum, that Ocampo was confrontational and accused her of getting him in trouble with LabCorp.*fn50 Heedum reported the incident to Ocampo's supervisors.*fn51 Ocampo admitted the conversation but denied the confrontation.*fn52 The next day, Ramirez complained that Ocampo had again loudly confronted her in front of patients and staff, including Leticia Barrones who commented on Ocampo's behavior.*fn53 Ramirez asked that Ocampo be barred from entering Allied's office.*fn54 Heedum provided Lalli and White with a memorandum regarding Allied's complaint about Ocampo's behavior.*fn55

  White discussed the matter with Castillo, who regarded Ocampo's conduct as a breach of LabCorp's Standards of Business Conduct.*fn56 LabCorp's standards prohibit employees from discussing with clients internal grievances or concerns or confronting clients about complaints.*fn57 Castillo concluded Ocampo's conduct warranted written discipline, and she directed White to draft a written warning.*fn58 White also arranged a meeting with Castillo and Ocampo at the end of his shift on May 6, 2004, for the purpose of administering the warning.*fn59 Ocampo refused to attend the meeting, said the matter had already been discussed, stated he did not have to speak to White, and left the premises, ignoring White's directives to stay.*fn60 Ocampo understood he would be disciplined for refusing to follow White's directives.*fn61 White informed Castillo of Ocampo's actions and, because White would be off the next morning, Castillo asked Lalli to bring Ocampo to her office.*fn62 On May 7, 2004, when Lalli instructed Ocampo to accompany him to Castillo's office, Ocampo refused.*fn63 Lalli instructed Ocampo not to leave on his scheduled route and went to consult Castillo.*fn64 Ocampo alleges Lalli told him to go home.*fn65

  Castillo and Lalli met with Michele Warneke, LabCorp's Divisional Director of Human Resources, and Carol Franz, LabCorp's San Antonio Senior Human Resources Consultant.*fn66 Warneke and Castillo concluded that Ocampo's repeated insubordination justified his immediate termination.*fn67 Lalli was sent to advise Ocampo one more time that he needed to meet with Castillo or, if necessary, to secure the return of LabCorp's property, including keys and badge.*fn68 When Lalli returned to the distribution area, he discovered Ocampo had left the premises.*fn69 Lalli called Ocampo's home and left a message for him to return the car, keys, and badge.*fn70 Ocampo complied and commented alternatively that he had been fired or that he had quit.*fn71 Ocampo did not file charge of discrimination with the EEOC or the TWC subsequent to his termination.*fn72



1. Whether LabCorp's motion to strike evidence should be granted.
2. Whether Ocampo used due diligence in serving LabCorp. 3. Whether Ocampo exhausted administrative remedies for events occurring after November 24, 2003.
4. Whether claims arising before May 28, 2003, are barred by limitations.
5. Whether LabCorp is entitled to summary judgment on Ocampo's age discrimination claims.
6. Whether LabCorp is entitled to summary judgment on Ocampo's harassment claim.
7. Whether LabCorp is entitled to summary judgment on Ocampo's retaliation claim.
8. Whether Ocampo failed to mitigate his damages.
9. Whether LabCorp is entitled to summary judgment on Ocampo's claim for punitive damages.
  The standard to be applied in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:


The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.*fn73
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact.*fn74 A fact is material if it might affect the outcome of the lawsuit under the governing law.*fn75 A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.*fn76 Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.*fn77

  The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact.*fn78 The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.*fn79 All evidence and inferences drawn from that evidence must be viewed in the light favorable to the party resisting the motion for summary judgment.*fn80 Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.*fn81

  The defendant may satisfy the burden to show the "absence of a genuine issue of material fact by pointing out that the record contains no support for the plaintiff's claim."*fn82 If plaintiff cannot provide some evidence to support its claim, summary judgment is appropriate.*fn83


  A. LabCorp's Motion to Strike Evidence

  LabCorp objects and has moved to strike exhibits 5, 6, and 8,*fn84 attached to Ocampo's summary judgment response.*fn85 With respect to exhibit 5, the affidavit of Mario R. Esparza, a Bexar County, Texas process server,*fn86 LabCorp specifically argues the affidavit is not competent summary judgment evidence because it was "purportedly executed and notarized on May 2, 2004, a full 22 days before the events to which it attests."*fn87 Alternatively, LabCorp argues that the sentence "Service by certified mail was signed on 05-25-04" should be stricken from the affidavit because Esparza has not testified he witnessed the signature.*fn88 LabCorp has also moved to strike an attachment to exhibit 5 because the attachment was not referenced in or authenticated by Esparza's affidavit.*fn89 As LabCorp argues, the face of the affidavit reflects it was signed and notarized on May 2, 2004, a date before the occurrence of the events addressed in the affidavit. Accordingly, the affidavit and attachment are not competent evidence and should be stricken.

  LabCorp argues exhibit 6, the purported affidavit of Luis Ramos, the legal secretary for Ocampo's counsel, should be stricken because it is not signed or witnessed and cannot be competent evidence.*fn90 Because Ramos's affidavit is not signed or notarized, LabCorp's motion to strike exhibit 6 should be granted.

  LabCorp argues exhibit 8, responses 2 and 3 from plaintiff's first responses to defendant's first set of interrogatories and requests for production, should be stricken because the exhibit is incomplete and not verified. As exhibit 8 is not complete or verified, LabCorp's motion to strike exhibit 8 should be granted.

  B. Due Diligence in Effectuating Service of Process

  LabCorp has moved for summary judgment, arguing that "Ocampo's TCHRA claims are procedurally barred . . . because Ocampo failed to comply with the statutory requirement to file and serve" his lawsuit within sixty days after receiving TWC's notice of right to file civil action."*fn91 LabCorp argues, in sum, that given the March 18, 2004 date on the TWC notice and the three day "mailbox rule," Ocampo failed to serve LabCorp with service of process on or before May 20, 2004, as required by Texas law.*fn92 LabCorp contends it was served with citation and the petition through its registered agent, CT Corporation System, on May 27, 2004.*fn93 In response, Ocampo argues LabCorp has no evidence of when he received the TWC notice of right to sue and cannot establish when the statute of limitations began to run.*fn94 Assuming the applicability of the "mailbox rule," Ocampo argues he used due diligence in effectuating service on LabCorp.*fn95 Ocampo argues the earliest he could have received TWC's March 18, 2004 notice was March 22, as March 21 was on a Sunday, and sixty days would have expired on Friday May 21, 2004.*fn96 Ocampo contends the evidence shows he filed suit and a request for issuance of citation on May 17, 2004, a date within the statute of limitations.*fn97 Ocampo argues his counsel contacted the Bexar County Clerk's Office during the week following May 17 to determine when the citation would be available.*fn98 According to Ocampo's argument, his counsel was notified on May 24 that the citation was ready, and it was transmitted by certified mail on the same date.*fn99 Ocampo asserts LabCorp's registered agent was served with process on May 25, 2004.*fn100

  In reply, LabCorp notes Ocampo has failed to rebut the presumption of receipt created by the "mailbox rule," thus shifting to Ocampo the burden to demonstrate due diligence.*fn101 LabCorp argues Ocampo "has failed to present any competent, admissible evidence demonstrating his diligence in effectuating service."*fn102

  Section 21. 254, Texas Labor Code provides that "[w]ithin 60 days after the a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent."*fn103 Texas courts have held that § 21.254 requires both the filing of the lawsuit and service of process on defendant within the sixty day limitation period.*fn104 "If service of citation occurs outside the sixty-day period, but the date of filing was inside the 60-day limitations period, the date of service can relate back to the date of filing if the plaintiff exercised due diligence in effectuating service upon the defendant."*fn105 Due diligence is generally a fact issue, unless it is clear that a lack of diligence exists as a matter of law.*fn106

  Pursuant to Rule 21a, Texas Rules of Civil Procedure, a party is presumed to have received notice of service by mail three days after the document was deposited with the United States Postal Service.*fn107 The party for whom receipt of notice is presumed may produce evidence to the contrary.*fn108 Rule 21a provides, in part,

Whenever a party has the right or is required to do some act within a prescribed period after the service of notice or other paper upon him and the notice or paper is served by mail . . . three days shall be added to the prescribed period[.]*fn109
No Texas court has expressly ruled that Rule 21a is applicable to TWC notices of right to file civil action when the date received is uncertain.*fn110 Nevertheless, a district court in the Western District of Texas has applied the three-day presumption when determining whether a civil action was timely filed pursuant to § 21.254.*fn111

  Ocampo does not deny receiving the March 18, 2004 TWC notice of right to bring a civil action,*fn112 but he asserts he can not remember the exact date of receipt.*fn113 Assuming, like another court in this District, that Texas courts would find Rule 21a is applicable to determining when a TWC notice was received, Ocampo is presumed to have received the notice on Monday March 22, 2004. To bring a civil action within sixty days from the presumed date of receipt, Ocampo would have had to file his lawsuit and serve LabCorp with process on or before May 21, 2004. Ocampo filed his original petition in state court on May 17, 2004*fn114 and, based on the date stamp, filed his request for process at the same time.*fn115

  Ocampo contends service was accomplished on May 25, 2005,*fn116 but has not proffered competent summary judgment evidence to support his contention.*fn117 LabCorp has presented the affidavit of Beatrice Casarez, a CT Corporation System employee, showing that, as LabCorp's registered agent in the present case, it was served with process on May 27, 2005.*fn118 Regardless of whether service was effectuated on May 25 or May 27, 2004, service on LabCorp was outside the sixty-day limitations period established by § 21.254. In order for service on LabCorp to relate back to the May 17, 2004, when the original petition was filed, Ocampo must demonstrate due diligence in attempting to timely serve LabCorp. Ocampo argues that "counsel's office made contact with the Bexar County District Clerk's Office over the course" of the week after May 17, and "counsel was advised" on May 24, 2004, that the citation was ready.*fn119 Although Ocampo has proffered some evidence showing Esparza was contacted on May 24, 2004, to serve process on LabCorp,*fn120 Ocampo has offered no competent evidence showing his attempts between May 17 and May 24 to obtain the citation from the clerk's office.*fn121 Moreover, the Court notes the citation, attached as exhibit C2 to the notice of removal, reflects it was signed by Deputy Clerk Irma Garza on May 18, 2004.*fn122 Given that Ocampo is claiming service was accomplished on May 25, 2004, one day after Esparza was contacted to make service, it would appear that the May 18, 2004 citation could have been served within the sixty-day limitations period. Ocampo has not explained why the May 18 citation could not be served before May 25 or 27, 2004. Accordingly, Ocampo has failed to raise a genuine issue material fact about whether he exercised due diligence in serving LabCorp, and the date of service cannot relate back to the May 17, 2004 filing date. Because Ocampo failed to file suit and serve LabCorp within the sixty-day limitations period specified by § 21.254, his claims of discrimination and retaliation under TCHRA are barred. LabCorp's motion for summary judgment should be granted, and Ocampo's original petition should be dismissed. Nevertheless, in an abundance of caution, and to afford the District Court with a full discussion of the issues, the undersigned will address LabCorp's remaining arguments for summary judgment.

  C. Events Occurring After November 24, 2003

  LabCorp has moved for summary judgment, arguing that, because Ocampo failed to exhaust administrative remedies, the Court "lacks jurisdiction over Ocampo's claim that LabCorp discriminated against him based on his age by terminating his employment on May 7, 2004," the retaliation claim, and any "other allegedly unlawful conduct transpiring after he filed his charge on November 24, 2003 — and certainly after it was dismissed on March 9, 2004."*fn123 In response, Ocampo argues the Court has ancillary jurisdiction over his retaliation claims because they grow out of the charge of discrimination he filed with the EEOC and TWC.*fn124

  Pursuant to Texas law, before a suit alleging unlawful employment practices may be brought under TCHRA, the plaintiff must file a complaint with the TWC within 180 days of the alleged misconduct.*fn125 The plaintiff's noncompliance with this requirement deprives the court of subject matter jurisdiction.*fn126 A lawsuit under TCHRA "is limited to the complaints made in the charge of discrimination and factually related claims that could reasonably be expected to grow out of the Commission's investigation of the charge."*fn127 Texas courts have applied this principle to retaliation claims and have held a plaintiff is not required to file a second charge of discrimination when the retaliation claim grows out of a previously filed charge of discrimination properly before the court.*fn128

  In the present case, there is no dispute that Ocampo filed a charge of age discrimination in November 2003, and is now alleging LabCorp terminated him in retaliation for that charge. Assuming the claims based on the charge of age discrimination were timely served on LabCorp and are properly before the Court, and given the above standards, Ocampo was not required to file a second charge of discrimination alleging retaliation. Therefore LabCorp's motion for summary judgment on Ocampo's retaliation claim should be denied.

  LabCorp also argues that Ocampo failed to exhaust administrative remedies for his claim of age discrimination based on conduct, particularly his termination, occurring after the November 2003 charge of discrimination was investigated and dismissed on March 9, 2004. Although no Texas court appears to have addressed a similar issue, the Fifth Circuit has held that a Title VII lawsuit may include "`any discrimination like or related to allegations contained in charge and "growing out of such allegation during the pendency of the case before the Commission'" because "`the civil action is much more intimately related to the EEOC investigation than to the words of the charge which initially triggered the investigation.'"*fn129 Ocampo did not address LabCorp's argument or cite authority suggesting Texas courts would hold to the contrary. Therefore, even assuming the claim is related to allegations in the original charge of discrimination, Ocampo was required to exhaust administrative remedies before suing for age discrimination based on events occurring after his charge of discrimination ceased to be pending be for the EEOC on March 9, 2004. Because the Court lacks subject matter jurisdiction, LabCorp's motion for summary judgment on Ocampo's claims of age discrimination based on his termination or any other conduct occurring after March 9, 2004, to the extent alleged, should be granted and the claims dismissed.

  D. Events Occurring Before May 28, 2003

  LabCorp has moved for summary judgment on events occurring prior to May 28, 2003, arguing any claims based on these events are barred by limitations pursuant to § 21.201(a) which requires that claims of discrimination must be made within 180 days of the allegedly unlawful conduct.*fn130 LabCorp argues the following allegations of unlawful conduct are barred: (1) White calling Ocampo an "old bastard" in August 2001; (2) Ocampo being told to come in to work when sick in 2001 and 2002; and (3) reducing Ocampo's merit pay increase on March 18, 2003.*fn131 Ocampo concedes that claims based on any allegedly discriminatory conduct occurring before May 28, 2003, are barred by limitations.*fn132 Accordingly, LabCorp's motion for summary judgment on this issue should be granted and any age discrimination claims based on events occurring prior to May 28, 2003, should be dismissed.

  E. Age Discrimination Prior to Termination

  Assuming Ocampo's age discrimination claims are properly before the Court, LabCorp argues, in sum, that summary judgment is proper because Ocampo cannot produce evidence that would create a genuine issue of material fact on the elements of his claim of age discrimination prior to his termination.*fn133 In particular, LabCorp argues "[o]ther than the alleged reduction in pay raise, none of the decisions of which Ocampo complains constitutes an adverse employment action," including denied vacation at specific time; name calling; changed delivery route to reduce overtime; failure to post notice of a safety meeting; and counseling about leaving a door opened.*fn134 LabCorp also argues, in sum, that Ocampo cannot produce evidence showing LabCorp's legitimate explanations for its decisions were pretext for age discrimination.*fn135

  In response, Ocampo argues, in sum, that, during the course of his employment with LabCorp, he was rated as an outstanding or great employee and received numerous awards.*fn136 Ocampo asserts that, because of his good record and employment with LabCorp prior to "the arrival on the scene of his last two (2) supervisors, . . . White and Lalli," he had "ready access" to upper management, to whom he often complained when he "believed that he had been wrongly denied benefits and privileges of employment."*fn137 Ocampo argues that White commented on his "status as a long standing employee by referring to him as an `old fart'" and that White said he would "`get even' with Plaintiff for going over his head to secure time off from Mr. Ethridge."*fn138 Ocampo also concedes:

The thrust of Plaintiff's discrimination case revolves around the creation of a hostile work environment by his immediate supervisors, namely Mr. Claudio White. Plaintiff does not contend that any one (1) incident of discrimination is actionable, but instead believes that in combination, such conduct was so severe or pervasive as to create an actionable "hostile environment."*fn139
  LabCorp replies that Ocampo "has failed to cite so much as a shred of evidence in support" of his age discrimination claims.*fn140 LabCorp argues that neither "the undisputed fact that Ocampo received good performance evaluations nor [the] assertion that White was out to `get' him because Ocampo had sought preferential treatment from vice president Mike Murphy (a motive wholly unrelated to age) created triable fact issues regarding age bias."*fn141 LabCorp asserts that, because Ocampo failed cite proof of an adverse employment action or of pretext, summary judgment is proper on the age discrimination claims.

  To state a claim for employment discrimination under TCHRA, Ocampo must establish a prima facie claim by alleging that he: (1) is a member of a protected class, in this case that he is forty or older; (2) suffered an adverse employment action; and (3) was treated dissimilarly from those outside the protected class.*fn142 If Ocampo can satisfy this burden, LabCorp must articulate a legitimate, nondiscriminatory reason for any employment action taken.*fn143 The burden then shifts back to Ocampo to prove that the articulated reasons are pretext for discrimination.*fn144

  Assuming that Ocampo has alleged a prima facie claim of age discrimination, the burden has shifted to LabCorp to articulate legitimate nondiscriminatory reasons for its employment decisions. LabCorp states that plaintiff was denied his first choice of vacation time in 2003 because he was not one of the first three employees requesting the time, as is the vacation policy at LabCorp.*fn145 As for Ocampo's altered route, LabCorp explains that it has a policy not to exceed twenty hours of overtime in a pay period for a department as a whole.*fn146 Accordingly, routes of service representatives are modified as necessary to reduce overtime.*fn147 After Lalli determined Ocampo's route could not be accomplished in an eight hour day, the route was modified.*fn148 With respect to Ocampo's claim that his age was a factor when he was denied a full merit raise on March 18, 2003, a claim that appears to be time-barred, LabCorp states Ocampo received the maximum raise available based on his position, salary range, and performance which was affected by Ocampo's preventable motor vehicle accident.*fn149

  Ocampo has not addressed LabCorp's articulated reasons; cited authority showing LabCorp failed to articulate legitimate, nondiscriminatory reasons for its actions; presented evidence showing, or even argued, how the reasons are pretext for age discrimination; or claimed other adverse employment actions occurred prior to his termination. Rather, Ocampo has conceded, in sum, that his discrimination claim is actually a claim of harassment based on a combination of unlawful conduct. Accordingly, Ocampo has failed to raise a genuine issue of material fact about whether LabCorp's articulated reasons are pretext for age discrimination. Therefore, LabCorp's motion for summary judgment on Ocampo's claims of age discrimination based on events occurring prior to his termination should be granted, and the claims should be dismissed. F. Age-Based Harassment

  LabCorp notes Ocampo claims he was harassed because White called him names and used foul language and because supervisors harassed him about the missed pick up incident at Allied.*fn150 LabCorp contends it is entitled to summary judgment on the harassment claim because Ocampo: has not alleged severe and pervasive conduct; can produce no evidence to show the alleged harassment interfered with his work performance; cannot show the alleged harassment was age-based; and failed to prevent the harm by taking advantage of LabCorp's complaint procedure.*fn151

  In addition to asserting that LabCorp's combined actions created a hostile environment, as set forth above in Ocampo's arguments regarding age discrimination, Ocampo responds that he "was subjected to almost daily comments at the hands of [] Mr. White," including comments such as "getting slow and old," "why don't you just retire," "you can't handle things anymore," and "old fart."*fn152 Ocampo argues the comments caused him emotional strain requiring medical treatment.*fn153 Ocampo also argues LabCorp's complaint "policy and procedure was in Plaintiff's estimation window dressing designed to shield from unlawful discrimination."*fn154

  In reply, LabCorp argues Ocampo has failed to cite authority showing that a company's legitimate employment actions, such as denying a choice of vacation dates or correcting routes to adhere to an overtime policy can be interpreted as harassment.*fn155 With respect to White's alleged comments, LabCorp argues that, even if Ocampo's unverified interrogatory answer is considered as evidence, the answer and plaintiff's deposition testimony do not establish severe or pervasive conduct.*fn156 LabCorp also argues that Ocampo has failed to cite evidence showing that the alleged harassment interfered with his ability to perform his work in a satisfactory manner.*fn157 LabCorp further argues that Ocampo's contention that he was insufficiently trained in the use of the company's complaint procedure cannot undo his deposition testimony that he was familiar with the policy and understood the procedures to follow.*fn158

  One Texas court has recognized a cause of action for age-based harassment under TCHRA and defined the elements of the prima facie claim as:

(1) the employee belongs to a protected group (40 years old or older); (2) the employee was subject to unwelcome harassment; (3) the harassment complained of was based on age; (4) the harassment complained of affected a "term, condition or privilege of employment," i.e., the harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; (5) respondeat superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.*fn159
When the plaintiff alleges a "supervisor with immediate (or successively higher) authority" was the alleged harasser, as Ocampo does here, the plaintiff does not need to satisfy the fifth element.*fn160 Once the employee establishes a prima facie claim, the employer is subject to vicarious liability for the harassment.*fn161

  Severe and Pervasive Harassment

  "To be actionable, the work environment must be both objectively and subjectively offensive — one that a reasonable person would find hostile or abusive and one that the victim in fact did perceive to be so."*fn162 To determine whether the environment is sufficiently abusive to support an action, courts review "all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or it is a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance."*fn163 Occasional or incidental age-related comments; rudeness; or isolated incidents, unless extreme, are not accepted as discriminatory changes in the conditions and terms of employment.*fn164

  LabCorp has specifically argued that, "[a]s a matter of law, the[] isolated incidents [of offensive comments over a span of several years, some outside the limitations period] cannot sustain a harassment claim" and it was not harassment for Lalli and White to investigate Allied's missed pick up complaint.*fn165 LabCorp has proffered Ocampo's deposition testimony that White allegedly engaged in age-related name calling in 2002*fn166 and another time in 2000, 2001, or 2002,*fn167 all outside the limitations period. LabCorp has also proffered Ocampo's deposition testimony that White and Lalli harassed him in April 2004 about the missed the pick up at Allied.*fn168 The testimony also includes Ocampo's admission that White and Lalli questioned him during the relevant time about confrontations with an Allied employee after the missed pick up and instructed him, per Allied's request, not to enter the Allied office.*fn169 Ocampo admitted that it was the supervisor's job to talk to service representatives about client complaints.*fn170 The evidence LabCorp cites reflects the alleged acts of harassment were isolated incidents and not extreme, or statements and instructions about client complaints, made as part of the supervisor's job. Without evidence of more pervasive harassment, summary judgment is proper.

  Ocampo's response does not dispute that Lalli and White's conduct in April 2004 was in response to Allied's complaints about Ocampo's actions. Ocampo argues only that "[p]laintiff was subjected to almost daily comments at the hands of Mr. White," such as "getting slow and old," "why don't you just retire," "you can't handle things anymore," and "an old fart."*fn171 Ocampo contends the comments caused him to seek medical treatment.*fn172 In support of his argument, Ocampo cites his response to Interrogatory No. 2 of LabCorp's first set of interrogatories and requests for production.*fn173 Ocampo's unverified interrogatory response reflects White allegedly made age-related comments twice in August 2001 and once in November 2003.*fn174 The response also states that for "the past 5-6 years" he was harassed when he called in sick and that what he believed were age-related comments were made on "various occasions" during his recent employment.*fn175 Ocampo did not identify White as the speaker or quantify the number of times he was harassed for calling in sick during the past five or six years or because of his age during his recent employment.*fn176 To the extent Ocampo's unverified interrogatory response is proper summary judgment evidence, it does not establish that White's alleged statements were more than occasional or incidental age-related comments. Ocampo may subjectively view White's comments as harassment but, objectively, the isolated comments were not more than rude or merely offensive. Because Ocampo has failed to establish a hostile work environment, LabCorp is entitled to summary judgment on the age-based harassment claim.

  Work Performance

  To the extent a hostile environment has been established, Ocampo must show that the environment caused an alteration in the terms and conditions of his employment.*fn177 The central question for the Court is whether the harassment undermined Ocampo's work competence, discouraged remaining on the job, or prevented career advancement.*fn178 Conduct that offends or wounds the Ocampo but does not hinder his performance cannot form the basis of a hostile work place claim.*fn179

  Assuming Ocampo's evidence has established a hostile environment, LabCorp correctly argues "there is no evidence that the alleged comments or discussions `unreasonably interfere[d] with [Ocampo's] work performance.'"*fn180 Ocampo does not argue and has not cited evidence showing how White's alleged comments caused any interference with his work performance or altered the terms and conditions of his employment.*fn181 Rather Ocampo argues, in essence, that despite the allegedly harassing comments, he continued to receive performance evaluations that rated him "at best, as outstanding and at worse, great."*fn182 Because Ocampo has failed to produce evidence establishing that his work performance was adversely affected by White's comments, an element of his age-based harassment claim, LabCorp is entitled to summary judgment.

  LabCorp's Affirmative Defense

  Assuming Ocampo has established the element of his prima facie claim of age-based retaliation, the Court considers whether LabCorp is entitled to rely on an affirmative defense.

  In the context of sexual harassment claims based on a supervisor's conduct, the United States Supreme Court, the Fifth Circuit, and Texas courts have recognized an affirmative defense for employers as long as the supervisor's harassment did not result in a "tangible employment action."*fn183 Tangible employment actions "require[] an official act of the enterprise, a company act," such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."*fn184 To establish the affirmative defense, the employer must show "(a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."*fn185 "Where . . . there is no evidence that an employer adopted or administered an anti-harassment policy in bad faith or that the policy was otherwise defective or dysfunctional, the existence of such a policy militates strongly in favor of a conclusion that the employer `exercised reasonable care to prevent' and promptly correct sexual harassment."*fn186 Although neither the Fifth Circuit nor the Texas courts have considered whether the above affirmative defense would be applicable to employers in age-based harassment claims, a district court in the Northern District of Texas has concluded the requirements of a harassment claim under the Age Discrimination in Employment Act ("ADEA") parallel those of a harassment claim under Title VII.*fn187 The district court did not specifically consider whether the employer had satisfied the affirmative defense because the issue was not raised, but the court indicated it would recognize the defense when it included the elements of the defense with other standards it set forth for the age-based harassment claim.*fn188 Moreover, given that Texas courts frequently look to analogous federal case law, it seems likely the state courts would apply the affirmative defense in age-based harassment claims brought under TCHRA.

  Even assuming Ocampo has established all elements of his prima facie claim of age-based harassment, the Court concludes LabCorp is entitled to rely on the affirmative defense. LabCorp argues that it has "company policies that unequivocally forbid discrimination and harassment in the workplace, offer multiple avenues for complaint to employees who believe that they have been subjected to unlawful conduct[,] and provide for prompt and effective investigative procedures."*fn189 LabCorp cites exhibits reflecting the company's antidiscrimination and antiharassment policies.*fn190 LabCorp also cites evidence showing Ocampo was aware of the policies and that he understood the complaint process.*fn191 LabCorp contends "there is no evidence that Ocampo ever submitted a single complaint of age-based workplace harassment to either Human Resources or and supervisor or manager,"*fn192 as required by company policy.*fn193 Ocampo's deposition testimony reflects that he complained at various times to three LabCorp employees who were not supervisors.*fn194

  In response, Ocampo argues conclusively that: LabCorp adopted a complaint procedure in name only; the materials were never explained or discussed; the policy was "ineffective and not designed to take advantage of preventative or corrective opportunities;" and the policy, "in Plaintiff's estimation" was "window dressing designed to shield from unlawful discrimination."*fn195 Ocampo cites no evidence to support his conclusory arguments, and he has not shown he attempted to follow LabCorp's complaint procedure. Accordingly, Ocampo has not produced evidence to raise a genuine issue of material fact about LabCorp's antidiscrimination/antiharassment policy and complaint procedures or about whether he attempted to report the age-based harassment to a supervisor or to Human Resources. As LabCorp's evidence is uncontroverted, it has established its affirmative defense and is entitled to summary judgment on Ocampo's age-based harassment claim.

  G. Age-Based Termination

  To the extent the claim is properly before the Court, LabCorp has also moved for summary judgment on Ocampo's claim that he was terminated because of his age, arguing, in sum, that Ocampo has no evidence he was treated differently than similarly situated employees outside the protected group*fn196 and that "there simply is no evidence that Ocampo's separation from LabCorp was the result of anything other than Ocampo's own misconduct."*fn197

  As set forth above, to state a claim of age discrimination under TCHRA, Ocampo must establish that: (1) he is forty or older; (2) he suffered an adverse employment decision; and (3) he was treated differently than similarly situated younger employees.*fn198 Although Ocampo has established that he was over forty at the relevant time and that he was terminated from employment at LabCorp, he has not established the third element of his prima facie claim, that younger similarly situated employees were treated differently.

  Ocampo's original petition does not allege that younger employees were treated differently, and his summary judgment response cites nothing to refute LabCorp's argument that there is no evidence of such different treatment. Ocampo's response only addresses his belief "that his termination of employment was motivated by his filing a charge of discrimination with the EEOC."*fn199 Ocampo has failed to establish his prima facie case because he has not alleged or shown that he was treated differently than younger similarly situated LabCorp employees. Therefore, LabCorp's motion for summary judgment should be granted, and Ocampo's age discrimination claim should be dismissed.

  H. Retaliation

  LabCorp has moved for summary judgment on Ocampo's claim that he was terminated because he filed an EEOC charge of discrimination against LabCorp.*fn200 LabCorp argues "Ocampo cannot come forward with any evidence that LabCorp's legitimate, non-retaliatory and non-discriminatory reasons for terminating him — his repeated acts of insubordination and job abandonment — were not credible but rather a mere pretext for . . . retaliation."*fn201 LabCorp specifically argues "Ocampo's own testimony shows that he can produce no evidence beyond his own belief that it was the filing of his charge, rather than his insubordinate conduct, that led to his termination."*fn202

  In response, Ocampo argues, in sum, that the timing of his termination with his EEOC charge of discrimination and notice of right to sue letters suggests his protected activity was the cause of his discharge.*fn203 Ocampo also challenges LabCorp's stated reason for his termination, arguing that LabCorp initially took the position that Ocampo voluntarily abandoned his job.*fn204 Ocampo further disputes the assertion that he was insubordinate.*fn205

  LabCorp replies that the six months between Ocampo filing the charge of discrimination and his termination is not sufficient to establish the causation element of his retaliation claim and "is clearly insufficient to create a material fact issue regarding pretext."*fn206 In addition, LabCorp argues Ocampo's other efforts to raise a fact issue about pretext are unavailing, particularly his reliance on the separation memorandum created at his termination.*fn207 LabCorp also argues that the evidence shows Ocampo "unequivocally admitted in his deposition that he refused to meet with White on May 6, 2004" and Lalli on May 7, 2004.*fn208

  To establish a prima facie claim under TCHRA for retaliation, the plaintiff must show that: (1) he engaged in protected activity; (2) an adverse employment action occurred; and (3) there was a causal connection between the protected activity and the adverse action.*fn209 If a prima facie claim is established, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse decision.*fn210 Once a legitimate, nonretaliatory reason is articulated, the burden shifts to the plaintiff to prove that the employer's reason is a pretext for retaliation.*fn211 To meet this burden, the plaintiff may "persuade[] the trier of fact that `a discriminatory reason more likely motivated the employer'" or by showing that the employer's stated reason is not credible.*fn212

  There is no dispute that Ocampo filed a charge of discrimination with the EEOC and that such activity is protected under TCHRA.*fn213 There is also no dispute that LabCorp terminated Ocampo's employment, an adverse employment action. Assuming, for the sake of argument, that the proximity between Ocampo's discharge and the filing of his charge of discrimination establishes the causation element of his prima facie claim of retaliation, the burden has shifted to LabCorp to articulate a legitimate, nonretaliatory reason for Ocampo's termination.

  LabCorp contends Ocampo was discharged for insubordination and job abandonment.*fn214 LabCorp's summary judgment evidence includes Ocampo's deposition testimony that he refused to meet with White on May 6, 2004, and with Lalli on May 7, 2004.*fn215 Castillo and Warneke considered Ocampo's refusal to meet with supervisors "simply made it impossible to for us to manage him as an employee" and found his conduct to be "serious enough to warrant immediate termination."*fn216 LabCorp policies specify that disruptive conduct, such as insubordination, constitutes grounds for termination.*fn217 Before Ocampo was informed of the termination decision, he left the workplace.*fn218 Upon learning of Ocampo's departure, Castillo concluded he had abandoned his job, a second reason for termination.*fn219 Pursuant to LabCorp's policies, job abandonment is a reason for termination*fn220 LabCorp's evidence includes the supplemental declaration of Carol Franz, avowing that LabCorp "requires completion of a `separation memorandum' whenever a LabCorp employee separates from the Company, whether voluntarily or involuntarily."*fn221 Franz testifies that:

On or about May 11, 2004, I forwarded a separation memorandum for David Ocampo, with attachments, to the Houston Human Resources office. I have reviewed Mr. Ocampo's file, including the separation memorandum. The documents attached to the separation memorandum include the following: (a) a draft written warning to David Ocampo involving Allied Institute, prepared by Claudio White and dated April 29, 2004, together with a copy of the LabCorp Standards of Business Conduct policy; (b) a memorandum from Chuck Lalli to Sheilah Castillo with subject "reported missed pickup for client #42199041, Allied Institute of Medicine," dated May 10, 2004, together with a copy of an April 14, 2004 route sheet; (c) a memorandum from Rachele Heedum to the Distribution Department regarding April 14, 2004; (d) a memorandum from Claudio White to Sheilah Castillo with subject "Insubordination of David Ocampo," dated May 10, 2004; (e) memorandum from Chuck Lalli to Sheilah Castillo with subject "David Ocampo Insubordination," dated May 10, 2004; (f) an email message from Pam Baxley to Pam Baxley and copied to Chuck Lalli dated May 11, 2004 discussing events involving David Ocampo on May 7, 2004; (g) a handwritten note signed by Wanda Sue Chavez dated May 11, 2004, discussing events involving David Ocampo on May 7, 2004; (h) a memorandum from Rachele Heedum to Sheilah Castillo regarding "Courier issue with Allied Institute of Medicine dated May 10, 2004; and (j) a chronology of events prepared by Sheilah Castillo.*fn222
Franz avows that the exhibit attached to the declaration is a true and correct copy of the separation memorandum and attachments and verifying the documents are records kept in the course of LabCorp's business.*fn223 LabCorp also produced evidence showing that Ocampo introduced the separation memorandum and attachments as exhibit 1 to Franz's deposition testimony elicited on May 26, 2005.*fn224 The Court concludes LabCorp has articulated legitimate, nonretaliatory reasons for Ocampo's termination.*fn225

  To show that LabCorp's reasons for his termination are pretext for retaliation, Ocampo proffers LabCorp's separation memorandum, minus the attachments, and argues LabCorp initially took the position that he voluntarily abandoned his job.*fn226 Ocampo contends that LabCorp's current position that he was terminated for insubordination "is disingenuous, at best, and at worse, pretextual."*fn227 Contrary to Ocampo's apparent argument that LabCorp has recently come to rely on insubordination to support terminating his employment, the documents attached to the separation memorandum establish LabCorp had decided to terminate Ocampo's employment for insubordination before supervisors knew he had left the premises.*fn228 Ocampo does not dispute that the separation memorandum included the attachments. Nor does Ocampo dispute that the documents described the incidents surrounding LabCorp's decision to terminate his employment, including his refusal to meet with White or Lalli and the direction to Lalli on May 7, 2004, to retrieve the company's property from Ocampo. As stated above, the separation memorandum and attached documents support LabCorp's articulated reasons for terminating Ocampo's employment.

  To establish that job abandonment is pretext for retaliation, Ocampo cites his deposition testimony that, after he would not talk to Lalli on May 7, 2004, about Allied, or accompany Lalli to a conference with Castillo, he followed Lalli's instructions to go home.*fn229 Ocampo cites evidence showing Lalli subsequently called Ocampo at home*fn230 and speculates "Mr. Lalli knew to call Plaintiff at his home because he told him to go home."*fn231 Ocampo's testimony and Lalli's call to Ocampo's home, when viewed in a light favorable to Ocampo as the nonmovant, raise a material fact issue about whether Ocampo abandoned his job or went home as directed.

  Ocampo also attempts to raise a material fact issue about whether insubordination is pretext for retaliation, "categorically den[ying] refusing to meet with Ms. Castillo and Mr. Lalli."*fn232 Ocampo hypothesizes that Lalli could have clarified that the meeting was about disciplinary action for the Allied incident or verified whether Ocampo was refusing a direct order.*fn233 As LabCorp has shown, Ocampo admitted in his deposition testimony that he refused to meet with White on May 6, 2004, and Lalli on May 7. Ocampo has failed to present evidence to the contrary and has cited no authority for the proposition that to be a legitimate articulation of insubordination, White and Lalli were required to do more than inform Ocampo of the need for a discussion. Nor has Ocampo cited evidence suggesting that, in the present case, insubordination was not a credible reason for his termination, or that, even if he was insubordinate, retaliation for the EEOC charge of discrimination was more likely the cause of his termination.*fn234 Because Ocampo failed to raise a genuine issue of material fact about each of LabCorp's articulated reasons for his termination, LabCorp is entitled to summary judgment on Ocampo's retaliation claim.

  I. Summary

  In sum, LabCorp's motion to strike exhibits 5, 6, and 8 of Ocampo's summary judgment evidence should be granted. LabCorp's motion for summary judgment should be granted, and Ocampo's original complaint should be dismissed. Ocampo's age discrimination and retaliation claims are barred by limitations pursuant to § 21.254 of TCHRA for failure to timely file suit and serve LabCorp within sixty days from the date he received TWC's notice of right to bring a civil action. Alternatively, Ocampo's claims based on actions occurring before May 28, 2003, are barred by limitations pursuant to § 21.201(a), and Ocampo's failure to exhaust administrative remedies precludes the Court from assuming jurisdiction over the claim that Ocampo's age caused his termination. To the extent any of Ocampo's claims are properly before the Court, Ocampo has either failed to establish the elements of his prima facie case or has failed to raise a genuine issue of material fact that LabCorp's articulated reasons for its actions are pretext for discrimination or retaliation or that LabCorp is not entitled to rely on an affirmative defense. In light of the fact that Ocampo is barred from pursuing, or as failed to raised genuine issues of material fact about, his claims of age discrimination and retaliation, the Court does not address LabCorp's arguments regarding damages.


  Based on the foregoing analysis, it is recommended that: LabCorp's motion to strike exhibits 5, 6, and 8 of Ocampo's summary judgment evidence*fn235 be GRANTED and the exhibits be stricken; LabCorp's motion for summary judgment*fn236 be GRANTED; and Ocampo's original petition be dismissed, each sides to bear its own costs.


  The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court.*fn237 Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.*fn238


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