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Sims v. America's Family Dental LLP

United States District Court, S.D. Texas, Houston Division

April 19, 2017

PAULA SIMS, Plaintiff,



         On May 18, 2016, the parties consented to proceed before a United States magistrate judge for all purposes, including the entry of a final judgment under 28 U.S.C. § 636(c). (Docket Entry #11). The case was then transferred to this court. In this action, Plaintiff Paula Sims (“Plaintiff, ” “Sims”) brings claims against her former employer, Defendant America's Family Dental LLP (“Defendant, ” “AFD, ” “the company”), under Title VII of the Civil Rights Act of 1964 [“Title VII”], as amended by the Pregnancy Discrimination Act of 1978 [“PDA”].[1] Plaintiff alleges that AFD discriminated against her, on the basis of her sex and pregnancy, by “demoting” her, and, subsequently, terminating her employment. Pending before the court is a motion for summary judgment that was filed by Defendant. (Defendant's Motion for Summary Judgment [“Motion”], Docket Entry #21). Responses and replies have been filed, as well. (Plaintiff's Response to Defendant America's Family Dental LLP's Motion for Summary Judgment [“Response”], Docket Entry #24; Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment [“Reply”], Docket Entry #27; Plaintiff's Surreply to Defendants for Their Motion for Summary Judgment [“Surreply”], Docket Entry #28). Having reviewed the pleadings, the evidence, and the applicable law, it is ORDERED that Defendant's motion for summary judgment is DENIED.


         Defendant America's Family Dental LLP maintains dental offices in Tomball, Texas, and Spring, Texas. (Motion at 1; Motion at Exhibit [“Ex.”] 1 [“Gosnell Decl.”], 2; Response at Ex. 6, 1-3). Dr. Josh Gosnell [“Dr. Gosnell”] is a partner in AFD, and treats patients at the Tomball office. (Notice of Removal at Ex. C [“Original Petition”], 3, Docket Entry #1; See Response at Ex. 12 [“Wilkerson Affidavit”], 1). Plaintiff Paula Sims worked for AFD, from December 19, 2008, until November 12, 2012, when she was terminated. (Original Petition at 3, 4; Gosnell Decl. at 2; Response at 5). Sims was assigned to work at both AFD offices, and this action arises from her complaints that Defendant discriminated against her, because of her sex and pregnancy, while she was employed. (Original Petition at 2-4; Motion at 1; See Motion at Ex. 2 [“Sims Depo.”], 9). Plaintiff contends, specifically, that she was “demoted” from the position of “registered dental assistant” to that of “hygiene assistant [sic][, ]” due to her pregnancy. (Original Petition at 3). She also alleges that Dr. Gosnell made repeated pejorative comments and jokes related to her pregnancy. (See Id. at 3-4; Motion at Ex. 7 [“EEOC Charge”], 3; Sims Decl. at 2). Sims insists that the termination of her employment with AFD resulted from this unlawful discrimination. (Id. at 5).

         As a dental assistant, Plaintiff's duties included administrative work, such as taking patient notes and preparing patient charts; administering sealant to patients' teeth; and assisting in AFD dental procedures by providing suction, making temporary restoration materials, and removing sutures. (Response at 12; Sims Depo. at 27:10-28:11). Sims was also sometimes required to administer nitrous oxide to sedate patients. (Gosnell Decl. at 2; Wilkerson Affidavit at 2). In late May, 2012, Plaintiff was promoted, and began working as a “registered dental head.” (Original Petition at 3; Sims Depo. at 74:17-25). It is unclear whether Sims assumed any additional duties along with her new position, but she was given an annual raise of $4, 000. (See Original Petition at 3).

         In June, 2012, Plaintiff informed Dr. Gosnell that she was pregnant. (Motion at 4; Response at 5; Sims Depo at 74: 22-25; Original Petition at 3; Gosnell Decl. at 3). Sims alleges that Dr. Gosnell became “angry” at this news, and asked her “why [she] would [have another child[.]” (Response at Ex. 11 [“Sims Decl.”], 1). Plaintiff alleges further that he said that he did not know if he should fire her, [2] and that he must consult with Kasie Wilkerson [“Wilkerson”], another dental assistant at AFD, to determine “what to do with her.” (Original Petition at 3). Sims claims that, after this conversation, Dr. Gosnell began to make disparaging comments related to her pregnancy. (Id.). She contends that he told patients and other AFD employees that she was “pregnant, and that he was going to fire her.” (Id.). She also alleges that “almost every day[, ]” he told her, explicitly, that he was going to fire her, because she was pregnant. (Id. at 4; Sims Depo at 78:9-10). Sims claims further that Dr. Gosnell would ask female job applicants if they were “pregnant, sterile, or wearing a chastity belt[, ]” and that he would blame any office mistakes on her pregnancy. (Original Petition at 3). She acknowledges, however, that some of Dr. Gosnell's comments seemed to have been made in jest. (Id.).

         On June 6, 2012, Plaintiff met with Dr. Gosnell and Reba Rodano [“Rodano”], a manager at AFD. (Original Petition at 3). At that time, she was informed that she would immediately begin working as a hygienist assistant, but that her wages would not change, and that the job reassignment was temporary. (Original Petition at 3; Gosnell Decl. at 5). Dr. Gosnell reportedly told her that she was reassigned to minimize her exposure to nitrous oxide, as hygienist assistants at AFD rarely work with nitrous oxide. (Gosnell Decl. at 3). Indeed, he testified that, although nitrous oxide is “frequently used during dental procedures to relieve anxiety and pain[, ]” a pregnant woman who is exposed to the gas may increase her risk of miscarriage. (Motion at 4; Gosnell Decl. at 3). Plaintiff viewed this change as a demotion, and alleges that other women who became pregnant “worked in [another] room[, ] instead of [] in the room where nitrous [oxide] was being utilized.” (Sims Decl. at 2).

         Kasie Wilkerson testified that, on a typical day, AFD performed dental services for ten to fifteen patients at its Tomball office. (Wilkerson Affidavit at 2). She estimated that, of that number, only two patients might require nitrous oxide. (Id.). Neither Sims nor Wilkerson could recall a time when nitrous oxide had been used on more than one patient at a time. (Sims Decl. at 2; Wilkerson Affidavit at 2). Wilkerson further testified that she could have “eas[ily] [] handle[d] all of the [] patients [who required nitrous oxide sedation, ] and [allow Plaintiff] to handle the patients [who did] not [require treatment with] nitrous [oxide].” (Wilkerson Affidavit at 2). Sims said that she “d[id] n[o]t think” that Defendant had filled her dental assistant position, but she could not recall how it was able to treat all of its patients who needed sedation, without doing so. (Sims Depo. at 101:12-24).

         After her “demotion, ” Sims worked as an assistant to Deanna Otts [“Otts”], a dental hygienist at AFD. (Motion at 6). Otts testified that Plaintiff spoke openly about her disapproval of Dr. Gosnell, as well as the office operations, and the condition of the equipment. (Motion at Ex. 3 [“Otts Affidavit”], 2). Otts also claims that she overheard Sims complaining to patients about aspects of AFD's human resource policy, including its employee bonus distribution practices, lunch breaks, and work hour requirements. (Id.). She stated that, in November, 2012, she spoke with Rodano, as well as with Dr. Gosnell, about Sims' negative comments. (Otts Affidavit at 2; Motion at Ex. 4 [“Rodano Affidavit”], 2). Rodano testified that, after she received multiple complaints about Plaintiff's caustic remarks, she advised Sims to temper her attitude. (Rodano Affidavit at 3). Sims, on the other hand, denies speaking poorly about the company, its dentists, or its office equipment. (Sims Depo. at 71:7-10). She testified that she had never been counseled about her “negative” attitude or critical comments that she had allegedly made about the company. (Id. at 71:14-19; Rodano Affidavit at 3).

         Nevertheless, Plaintiff was terminated on November 12, 2012, ostensibly, “because of critical comments that she had made in the presence of patients about Dr. Gosnell, [the company], and [its] equipment.” (Rodando Affidavit at 3). Rodano stated, expressly, that Plaintiff was not terminated due to her pregnancy or sex. (Id.). Plaintiff maintains that she was not given a reason for her termination, but she insists that her sex and pregnancy were motivating factors in her discharge. (Original Petition at 5; Sims Decl. at 2).

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 11, 2012. (Original Petition at 4; EEOC Charge at 2). In that charge, Sims alleged that AFD discriminated against her on the basis of her sex. (Id.). Before this court, she contends that she was “demoted, ” because of her pregnancy. Plaintiff also claims that Dr. Gosnell made disparaging statements about her, due to her sex and her pregnancy. (Id.). Sims received a right to sue letter from the EEOC on October 21, 2015, but she has not submitted a copy of that letter.[3] (Original Petition at 4). She filed an action against Defendant in state court on January 6, 2016. (Id.). In her state court petition, Sims made claims for sex and pregnancy discrimination and wrongful termination, in violation of Title VII of the Civil Rights Act. (Id. at 4-5). On February 17, 2016, Defendant removed this action to federal court on the basis of the court's federal question jurisdiction. (Notice of Removal at 1, Docket Entry #1).

         Defendant now moves for summary judgment. In support of its motion, AFD contends, first, that Sims cannot prove a prima facie case of pregnancy discrimination, based on her transfer to the position of dental hygienist assistant. (Id. at 11-13). In support of its argument, AFD claims that Plaintiff was not qualified for her previous position, because she could not perform all of its essential functions. (Id. at 11-12). Defendant also asserts that the reassignment was not an adverse employment action, and, so it cannot support a claim for discrimination. (Id. at 13). Next, the company argues that Sims cannot establish a prima facie case of sex discrimination, because she cannot identify any valid male comparators to substantiate her claims. (Motion at 11). Defendant argues further that Plaintiff has no evidence that she has been replaced by, or treated less favorably than, a similarly situated employee, outside of her protected class. (Id.). In the alternative, AFD contends that it had legitimate, nondiscriminatory reasons for transferring Sims, and that she has not produced substantial evidence to show that those reasons were a pretext for discrimination. (Id. at 14-16).

         As to the claim for wrongful termination, Defendant, likewise, argues that Plaintiff cannot establish that she has been replaced by, or treated less favorably than, a similarly situated employee, outside of her protected class. (Id. at 16-17). In the alternative, AFD claims that it had legitimate, non-discriminatory reasons for terminating her employment. (Id. at 17-18). Finally, Defendant contends that Plaintiff has produced no evidence of a pretext for discrimination. (Id. at 18-20). In fact, AFD is adamant that the record is replete with evidence that no discrimination occurred. (Id.). Having reviewed the pleadings, the evidence, and the applicable law, it is ordered that Defendant's motion for summary judgment is denied.

         Standard of Review

         Summary judgment is appropriate if “‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant [is] entitled to judgment as a matter of law.'” Pustejovsky v. Pliva, Inc., 623 F.3d 271, 275-76 (5th Cir. 2010) (quoting Fed.R.Civ.P. 56(c); citing Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009)). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving part[ies], there is no genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 30, 127 S.Ct. 1769, 167 L.Ed. 686 (2007) (citations omitted); Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012). Under Rule 56(c), the moving party bears the initial burden of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005); Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001); see Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). “The party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the non-movant's case.” Mack v. Equable Ascent Financial, L.L.C., 748 F.3d 663, 665 (S.D. Tex. 2014) (citations omitted); Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). “‘If the moving party fails to meet its initial burden, its motion for summary judgment must be denied, regardless of the non-movant['s] response.”' Exxon Mobil Corp. v. U.S., Nos. H-10-2386, H-11-1814, 2015 WL 3513949, *at 15 (S.D. Tex. June 4, 2015) (quoting Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 451, 471 (5th Cir. 2002). If the moving party its met its Rule 56 burden, the non-moving party cannot merely rest on the allegations in her pleadings. See Lincoln, 401 F.3d at 349-50; see also Kee v. City of Rowlett, 247 F.3d 206, 210 (5thCir. 2001). Rather, she is required to “‘go beyond the pleadings'” and produce probative evidence to show “‘that there is a genuine issue for trial.'” Kee, 247 F.3d at 210 (citations omitted); Boudreaux, 402 F.3d at 540; see Izen v. Catalina, 398 F.3d 363, 366 (5th Cir. 2005). If she does so, her evidence “is to be believed, and all justifiable inferences are to be drawn in her favor.” Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003); see Hillman, 697 F.3d at 302.However, if the non-movant fails to respond appropriately, or if she fails to respond at all, summary judgment is not awarded to the moving party simply by default. See Ford-Evans v. Smith, 206 Fed.Appx. 332, 334 (5th Cir. 2006); see also Day v. Wells Fargo Bank Nat. Ass'n, 768 F.3d 435, 435 (5th Cir. 2014). Instead, as always, summary judgment is appropriate only if the moving party has demonstrated the absence of a genuine issue of material fact, and shown that judgment is warranted as a matter of law. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5thCir. 2006); Day, 768 F.3d at 435.


         Claims Under Title VII

         Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination by employers “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a). The Pregnancy Discrimination Act of 1978 [“PDA”] “amended Title VII by explicitly including discrimination based on pregnancy and related medical conditions within the definition of sex discrimination.” Gerdin v. CEVA Freight, L.L.C., 908 F.Supp. 2d. 821, 826 (S.D. Tex. 2012) (quoting Stout v. Baxter Healthcare Corp., 282 F.3d 856, 859 (5th Cir. 2002)). In doing so, Title VII's definition of the terms “because of sex” and “on the basis of sex” was expanded to include “because of or on the basis of pregnancy, childbirth, or related medical conditions. . .” Id. (quoting 42 U.S.C. § 2000e(k)). A claim brought under the PDA is analyzed like any other Title VII discrimination claim. Gerdin, 908 F.Supp.2d at 826.

         A discrimination claim under Title VII can be established through direct or circumstantial evidence. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). If a plaintiff presents direct evidence of discriminatory intent, then she is entitled to bypass the familiar analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 84 (1973). Turner v. Kansas City So. Ry. Co., 675 F.3d 887, fn 3 (5th Cir. 2012). In such a case, the burden then shifts to the employer to establish, by a preponderance of the evidence, that the same decision would have been made, regardless of the discriminatory intent. Fierros v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir. 2001). Direct evidence is “evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). It includes “any statement or ...

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