United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court is Defendant Federal National Mortgage Association
a/k/a Fannie Mae's (Fannie Mae) Motion for Summary
Judgment. Doc. 46. For the following reasons, the Court
GRANTS Fannie Mae's
an employment discrimination case. Defendant Fannie Mae
terminated Plaintiff Lynette Sandidge (Sandidge) from her
position as a sales representative with Fannie Mae in January
2013. See Doc. 47, Def.'s Br. Supp. Mot. Summ.
J. 1, 6 [hereinafter Def.'s Br.]; Doc. 51, Pl.'s Br.
Supp. Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 2, 5
[hereinafter Pl.'s Resp.]. The reason for her termination
lies at the heart of this suit. Sandidge maintains that she
was fired because of her gender and age. Doc. 1-2, Pl.'s
Orig. Pet. ¶¶ 4.01-5.07. Fannie Mae counters that
it was because she violated company policy by engaging in an
improper relationship with an outside real estate broker.
See Doc. 47, Def.'s Br. 12-21.
of background, Fannie Mae is a publicly traded company
created by congressional charter to support the national
housing market by investing in mortgage loans. 12 U.S.C.
§ 1723a; Doc. 1-2, Pl.'s Orig. Pet. ¶ 3.01. Due
to its mortgage investments, Fannie Mae owns real estate
throughout the United States. Doc. 47, Def.'s Br. 3. More
specifically, when a property secured by one of Fannie
Mae's mortgage interests is foreclosed upon, Fannie Mae
takes ownership of the property-a “real estate
owned” (REO) property-to manage and eventually sell it.
facilitate the sale of REO properties, Fannie Mae employs
sales representatives who work to sell the properties through
licensed outside brokers in an assigned territory.
Id. at 3-4 (citing Doc. 48-1, Def.'s App. Supp.
Mot. Summ. J. 315-18 [hereinafter Def.'s App.], Ex. 23,
David Box Depo.). Fannie Mae then contracts with outside
brokers (REO Brokers) after a rigorous screening process to
work with Fannie Mae's sales reps to assist with the
maintenance and disposition of REO properties. Id.;
Doc. 1-2, Pl.'s Orig. Pet. ¶ 3.02. As part of that
screening and contracting process, sales reps can recommend
to Fannie Mae's management team that particular outside
real estate agents be selected as REO Brokers. Doc. 47,
Def.'s Br. 5 (citing Doc. 48-1, Def.'s App. 387-88,
Ex. 27, 2d Warren Depo.). If selected as brokers, then those
agents receive unique passwords to access Fannie Mae's
proprietary Asset-Management Network (AMN). Id.
underlying facts reveal that Sandidge started working for
Fannie Mae in June 1997. Doc. 1-2, Pl.'s Orig. Pet.
¶ 3.02. And at all times relevant to this case, Sandidge
worked for Fannie Mae as a sales rep. Id. In 2009,
Sandidge's assigned territories included Washington,
D.C., Maryland, and Virginia. Doc. 47, Def.'s Br. 6
(citing Doc. 48-1, Def.'s App. 19-20, Ex. 1, Sandidge
Depo. [hereinafter Sandidge Depo.]); see also Doc.
51, Pl.'s Resp. 3-4. While there, she met and worked with
Jonathan Spinetto, a Virginia real estate agent and approved
REO Broker for Fannie Mae's properties in the area. Doc.
47, Def.'s Br. 6 (citing Doc. 48-1, Def.'s App.
19-20, Sandidge Depo.); Doc. 51, Pl.'s Resp. 3-4.
moved from Fannie Mae's Washington,
D.C./Maryland/Virginia territory to its Utah/Montana
territory in 2011. Doc. 47, Def.'s Br. 7 (citing Doc.
48-1, Def.'s App. 19-20, Sandidge Depo.); Doc. 51,
Pl.'s Resp. 3. To carry out her duties there, Sandidge
needed the help of local real estate agents. Doc. 51,
Pl.'s Resp. 3. Sandidge claims that she received
directions to double the number of agents in Montana in
particular from three to six. Id. (citing Doc. 52.,
Pl.'s App. Supp. Pl.'s Resp. 3 [hereinafter Pl.'s
App.], Ex. 1, Sandidge Decl. [hereinafter Sandidge Decl.]).
With that in mind, Sandidge says, she requested and Fannie
Mae provided a list of agents available in the area.
Id. The list included just one potential agent, but
that individual failed to pass Fannie Mae's REO Broker
screening process due to licensing problems. Id.
was not listed as an option. See id.; Doc. 47,
Def.'s Br. 13. Nevertheless, Sandidge “turned
to” Spinetto to identify other potential agents to
recommend to Fannie Mae management as REO Brokers for the
area. Doc. 51, Pl.'s Resp. 3; see also Doc. 47,
Def.'s Br. 13. Spinetto, Sandidge maintains, had helped
with similar searches in the past and agreed to do so again
here. Doc. 51, Pl.'s Resp. 4. To that end, Spinetto
recommended agents to Sandidge, who in turn recommended them
to Fannie Mae's management to be approved as REO Brokers.
See id., Doc. 47, Def.'s Br. 13 (citing Doc.
48-1., Defs.'s App. 25-26, Sandidge Depo.).
first of those agents, Patricia Ann Shampeny, was brought on
in November 2011. Doc. 47, Def.'s Br. 13 (citing Doc.
48-1, Def.'s App. 38, Sandidge Depo.). Fannie Mae says
that when Shampeny's screening process stalled, Sandidge
emailed Fannie Mae's management to encourage moving her
application along. Id. (citing Doc. 48-1, Def.'s
App. 89, Sandidge Depo. Ex. 8). In response, Fannie Mae
claims, its vendor manager explained that he had yet to
receive Shampeny's application but had received-without
Sandidge's endorsement-applications from two other
interested agents. Id. Fannie Mae goes on to say
that Sandidge ignored non-Spinetto-referred agents or
otherwise chose not to follow up with them in favor of agents
referred by Spinetto. Id. at 13-14 (citing Doc.
48-1, Def.'s App. 40, 47, 54-59, Sandidge Depo.).
three Spinetto-referred agents became REO Brokers on
Sandidge's recommendation. Id. at 13 (citing
Doc. 48-1, Def.'s App. 25-26, Sandidge Depo.). And Fannie
Mae's summary judgment evidence, including Sandidge's
deposition, indicates-and Sandidge does not seem to
contest-that Sandidge knew those agents were
affiliated with Spinetto and had “some kind of
arrangement” with him, though the details of that
arrangement were unclear. Id. at 13, 15 (citing Doc.
48-1, Def.'s App. 25-26, 66-67, Sandidge Depo.).
to Fannie Mae, after the Montana REO Brokers were on-boarded,
Sandidge took a hands-off approach and allowed Spinetto to
train the Brokers and to manage their offices. Id.
at 13 (citing Doc. 48-1, Def.'s App. 21-22, Sandidge
Depo.). In essence, says Fannie Mae, Spinetto and his own
employees acted as a liaison between Sandidge and the Montana
REO Brokers. Id. at 16 (citing Doc. 48-1, Def.'s
App. 15, Sandidge Depo.). So while Sandidge nominally
retained her assigned duties, such as training the REO
Brokers in her territories, in effect she outsourced those
responsibilities to Spinetto and his team. Id. at 17
(citing Doc. 48-1, Def.'s App. 27-28, Sandidge Depo.).
Sandidge asserts that the relationship between her, Spinetto,
and the Montana REO Brokers was proper and that arrangements
like hers with Spinetto were commonplace. Doc. 51, Pl.'s
Resp. 4. Fannie Mae, by contrast, argues that Sandidge
violated company policy by failing to keep her relationship
with Spinetto at arm's-length and that, consequently, it
fired her. See, e.g., Doc. 47, Def.'s
Br. 12, 17.
Mae states that it employs both practical and formal
safeguards as part of its internal personnel management and
policies to avoid potential conflicts of interest between
sales reps and REO Brokers. Id. at 4. As a
practical control, Fannie Mae often reassigns its territories
among sales reps and uses multiple REO Brokers within a given
sales rep's territory. Id. But as a more formal
measure, Fannie Mae has a Code of Conduct and personnel
policy that govern, among other things, sales reps'
relationships and interactions with REO Brokers.
Id. Fannie Mae states that its Code of Conduct
and personnel policy are designed to prevent the existence or
appearance of impropriety or conflict of interest between
Fannie Mae and its REO Brokers. Doc. 47, Def.'s Br. 4
(citing Doc. 48-1, Def.'s App. 204, Ex. 19, Code of
Conduct [hereinafter Code of Conduct]); see also
Doc. 48-1, Def.'s App. 220-33, Ex. 20, Conflict of
Interest Policy [hereinafter Conflict of Interest Policy].
Along those lines, Fannie Mae's Code of Conduct
articulates a non-exhaustive list of “Code Breakers,
” that is, examples of conduct that would violate the
code. Doc. 47, Def.'s Br. 4 (citing Doc. 48-1, Def.'s
App. 138, Ex. 13, Arrington Depo.; 204, Code of Conduct).
among those examples of Code Breakers is: “Giving one
Fannie Mae vendor an inappropriate advantage over other
vendors.” Id.; see also Doc. 48-1,
Def.'s App. 213, Code of Conduct. Read in context, Fannie
Mae says, that means that its employees may not engage in
conduct that either: (1) gives a vendor an inappropriate
advantage; or (2) appears to give a vendor an inappropriate
advantage. See Doc. 47, Def.'s Br. 4; see
also Doc. 51, Pl.'s Resp. 5-6, 19, 23. Fannie Mae
claims that it requires all of its employees, including
Sandidge when she worked there, to review the Code of Conduct
annually. Doc. 47, Def.'s Br. 4 (citing Doc. 48-1,
Def.'s App. 3, Sandidge Depo.). Sandidge's deposition
testimony indicates-and she does not seem to contest-that she
was familiar with Fannie Mae's Code of Conduct and
“read over it briefly” every year. Doc. 48-1,
Def.'s App. 3, Sandidge Depo.
Mae asserts that its dedicated investigations unit examines
alleged violations of its Code of Conduct and personnel
policies. Doc. 47, Def.'s Br. 5; see also Doc.
51, Pl.'s Resp. 2, 20. The investigations unit's
practices are governed by Fannie Mae's Investigations
Procedure and Investigations Policy (together, Investigations
Practices), which, at least on paper, strive to ensure that
investigations are fair, impartial, and insulated from
influence by Fannie Mae's management team. Doc. 47,
Def.'s Br. 6 (citing Doc. 48-1, Def.'s App. 234, Ex.
21, Investigations Procedure; 451, Ex. 34, Investigations
Policy). Sandidge, as will soon become apparent, disputes
that the investigation of her conduct was impartial. See,
e.g., Doc. 51, Pl.'s Resp. 1, 10 (arguing that
Fannie Mae engaged in a sham investigation).
Mae says that once an investigation is complete, the lead
investigator identifies a “directed action” to be
taken as a result of the investigation's findings. Doc.
47, Def.'s Br. 6. Fannie Mae's Chief Compliance
Officer then purportedly reviews the proposed directed action
before it is implemented. Id. During that process,
the proposed directed actions are often discussed with Fannie
Mae's management team. See Id. Fannie Mae
maintains-but Sandidge disagrees-that those discussions are
just to ensure that all pertinent information is on the
table; management supposedly has no input into the selection
or enactment of directed actions. Id.; see
also Doc. 51, Pl.'s Resp. 15-17, 19-23.
allegations at issue here involve former REO Brokers Spinetto
and Rhyan Finch. See Doc. 47, Def.'s Br. 7-9;
Doc. 51, Pl.'s Resp. 4-5, 8. Fannie Mae alleges that in
2012, it received an anonymous tip that one of its sales
reps, Stephanie Neugent, had helped Finch to establish a
referral network through which he received fees for referring
REO properties to other agents. Doc. 47, Def.'s Br. 7
(citing Doc. 48-1, Def.'s App. 323-26, Ex. 23, Box
Depo.). Fannie Mae says that its investigations unit looked
into the complaint, determined that Neugent's conduct
violated the Code of Conduct and Conflict of Interest Policy,
and proposed as directed action that she be fired as a
result. Id. (citing Doc. 48-1, Def.'s App. 142,
Arrington Depo.). Management agreed and fired Neugent.
See id.; see also Doc. 49, Def.'s
Sealed App. Supp. Mot. Summ. J. [hereinafter Def.'s
Sealed App.] 620-21, Ex. 53, Approval Memo re: Stephanie
Mae claims that its mortgage fraud group later expanded the
investigation into Finch's conduct and around the same
time began investigating Spinetto on similar grounds. Doc.
47, Def.'s Br. 7-8. Fannie Mae maintains that it
concluded through the investigation that Finch and Spinetto
improperly: (1) accessed the AMN without Fannie Mae's
authorization or approval using other brokers' login
credentials and passwords; (2) required the brokers that they
worked with to split commissions as payment; and (3) masked
their participation by creating false emails and phone
numbers to lead Fannie Mae to believe that it was contacting
other brokers when it was in fact corresponding with Finch
and Spinetto. Id. at 8. Fannie Mae also became
concerned that sales reps other than Neugent were implicated
by Finch and Spinetto's behavior. Id. at 9.
that reason, Fannie Mae states, its investigations unit
looked into which sales reps had worked with either Finch or
Spinetto. Id. That inquiry initially identified 12
employees but two more names later came to light through
ensuing investigations. Id.; Doc. 51, Pl.'s
Resp. 6. Finch cooperated with Fannie Mae and named sales
reps who he had worked with in a list forwarded to the
investigations unit. Doc. 47, Def.'s Br. 9, 9
n.8 (citing Doc. 48-1, Def.'s App. 323-26, 346-47, 399).
Spinetto, by contrast, refused to provide Fannie Mae with
information about the sales reps who he had worked with.
Id. at 9 (citing Doc. 48-1, Def.'s App. 445E,
Ex. 32, Spinetto Depo.).
result, Fannie Mae conducted its own inquiry to determine
which REO or other outside brokers were affiliated with
Spinetto. Id. (citing Doc. 48-1, Def.'s App.
323-26, Ex. 23, Box Depo.). To that end, Fannie Mae searched
for common email address formats to identify Spinetto-related
Brokers. Id. Armed with that information, Fannie Mae
says, it determined which sales reps had worked with or
on-boarded those Brokers, and forwarded their names to the
investigations unit. Id. at 9-10.
Mae maintains that this inquiry brought about its
investigation into Sandidge. Id. at 10. Vinda
Milles, the last Montana REO Broker to be on-boarded on
Sandidge's recommendation, had an email address format
consistent with that of other Spinetto-related agents.
Id. at 10 n.9 (citing Doc. 48-1, Def.'s App.
445-45A, Ex. 32, Spinetto Depo.). Milles, says Fannie Mae,
was affiliated with Spinetto through his company Blackhawk
Consulting, LLC. Id. at 10. Fannie Mae claims Milles
told another sales rep that she essentially dealt only with
Blackhawk and, as a result, never talked to anyone at Fannie
Mae. Id. (citing Doc. 48-1, Def.'s App. 323-26,
Ex. 23, Box Depo.). In other words, says Fannie Mae, Milles
worked with Spinetto's team when she should have been
working directly with Sandidge. See Id. at 8. Fannie
Mae goes on that Milles stated that when Sandidge did visit
the Montana REO properties, she brought Spinetto along with
her. Id. at 10 (citing Doc. 48-1, Def.'s App.
323-26, Ex. 23, Box Depo.).
Mae says that Sandidge's direct supervisor, Christopher
Cordina, learned of Milles's story and followed up with
her to confirm its veracity. Id. (citing Doc. 48-1,
Def.'s App. 168A); see also Doc. 51, Pl.'s
Resp. 2. Sandidge, for her part, seems to contest
Cordina's knowledge of Mille's claims, and states
that “he was surprised and knew nothing about the
investigation.” Doc. 51, Pl.'s Resp. 4 (citing Doc.
52, Pl.'s App. 5, Sandidge Decl.). Nevertheless, Fannie
Mae asserts that an investigation into Sandidge's
behavior then began as a result of Mille's report. Doc.
47, Def.'s Br. 10 (citing Doc. 148, Def.'s App.
116-17, Ex. 13, Arrington Depo.).
Mae claims that its investigation uncovered a number of
questionable or improper activities by Sandidge, including:
(1) taking significant steps to ensure that Spinetto had a
hand in Montana REO properties despite knowing that he was
not licensed in Montana; (2) acquiescing to Spinetto's
referral-based business relationship with the Montana REO
Brokers; (3) permitting Spinetto to manage or at least be
involved in managing the Montana REO properties, train the
Montana REO Brokers, and access Fannie Mae's AMN; and,
most importantly, (4) not telling anyone about it. Doc. 47,
Def.'s Br. 12-17. In essence, Fannie Mae says, Sandidge
outsourced her responsibilities to Spinetto and his team, who
acted as liaisons between Sandidge and the Montana REO
Brokers. Id. at 16 (citing Doc. 48-1, Def.'s
App. 15, Sandidge Depo.). So when Sandidge worked with a
Montana REO Broker, she was actually working with Spinetto.
See Id. And despite, Fannie Mae maintains, signs
that interplay might be improper-for instance, Sandidge's
annual review of Fannie Mae's Code of Conduct or the use
of special emails so that communications sent to a REO Broker
would also be sent to Spinetto-Sandidge never reported it to
her supervisor or other superior. Id.
casts these facts in a different light. Fannie Mae, Sandidge
says, instructed her to double the amount of REO Brokers in
Montana. Doc. 51, Pl.'s Resp. 3. So she did. Id.
Following standard procedures, Sandidge received a list of
interested agents from Fannie Mae. Id. But that
list, Sandidge continues, included just one agent who turned
out to be unqualified due to licensing issues. Id.
Sandidge thus turned to Spinetto, someone she knew and had
worked with before, to get recommendations for other agents.
Id. Sandidge claims that asking for referrals-as
well as the ensuing training-in that way was “common in
the industry.” Id. at 4. What's more, her
understanding of Fannie Mae's rules and practices allowed
for relationships like that between Spinetto and the Montana
REO Brokers. Id. And Sandidge neither offered nor
received payments, kickbacks, or any other benefits to or
from Spinetto or the Montana REO Brokers. Id.
Therefore, Sandidge claims, nothing was amiss and there was
no conflict of interest. Id.
Fannie Mae says that its investigations unit concluded that
Sandidge's actions created an appearance of impropriety.
See Doc. 47, Def.'s Br. 17. Sandidge's
deposition testimony, proffered by Fannie Mae, indicates that
in February 2012 an agent in Montana contacted Sandidge and
asked whether Fannie Mae had outsourced the disposition of
its REO properties there to Spinetto. Id. (citing
Doc. 48-1, Def.'s App. 27-28, Sandidge Depo.; 86,
Sandidge Depo. Ex. 6). Fannie Mae says that Sandidge reported
that email to Spinetto, but not to her supervisor or any
other superior. Id. at 18 (citing Doc. 48-1
Def.'s App. 33-34, Sandidge Depo.).
same month, Fannie Mae continues, its sales manager Marsha
Peters reminded sales reps that they should not assign REO
properties to REO Brokers without first confirming that
Brokers had AMN access. Id. Sandidge's
deposition testimony suggests that she responded by informing
Peters that the newly on-boarded Montana REO Brokers were not
timely receiving AMN access. Id. (citing Doc. 48-1,
Def.'s App. 73, Sandidge Depo.). When Peters in turn
requested additional evidence of the problem, Fannie Mae says
and Sandidge's deposition testimony corroborates,
Sandidge instead forwarded the request to Spinetto to ensure
that he wouldn't turn up when Peters started digging into
records. Id. at 19 (citing Doc. 48-1, Def.'s
App. 74, Sandidge Depo.). Sandidge's deposition testimony
intimates that she did so to steer Peters's focus to AMN
access rather than Spinetto's involvement because she was
concerned Peters might have had a vendetta against Spinetto.
Id.; see also Doc. 48-1, Def.'s App.
74-75, Sandidge Depo.
her reason, Fannie Mae's investigations unit determined
that Sandidge took steps to affirmatively conceal
Spinetto's involvement with the Montana REO properties.
See Doc. 47, Def.'s Br. 18-19. Fannie Mae's
investigations unit also concluded-and Sandidge does not
dispute-that Sandidge shared other REO Brokers'
“scorecards, ” which appear to monitor Broker
performance, and other information with Spinetto.
Id. at 19; see also Doc. 51, Pl.'s
Resp. 19-20. Fannie Mae claims that Sandidge provided such
information to Spinetto on demand but never inquired further
as to why he wanted it or what he used it for. Doc. 47,
Def.'s Br. 20.
Mae claims that based on all of those occurrences and
Sandidge's failure to report them to management, the lead
investigator on Sandidge's case, Leslie Arrington,
determined that termination was the appropriate direct action
to take. Id. (citing Doc. 48-1, Def.'s App. 173,
Ex. 15, Arrington Decl.). Fannie Mae says that its Chief
Compliance Officer Nancy Jardini then reviewed and approved
the proposed directed action. Id. at 21.
January 2013, Alison Roach, a member of Fannie Mae's
investigations unit assigned to the investigation into
Sandidge's conduct, interviewed Sandidge about her
dealings with real estate agents in Montana. Doc. 1-2,
Pl.'s Orig. Pet. ¶¶ 3.03-04; see also
Doc. 47, Def.'s Br. 11. Sandidge asserts that during the
interview she “was given no opportunity to build a
defense or review materials, and was given no indication of
what, if any, specific accusations had been made against
her.” Doc. 1-2, Pl.'s Orig. Pet. ¶ 3.04. The
next day Sandidge told Cordina, her direct supervisor, about
her interview with Roach. Id. ¶ 3.10. Sandidge
maintains that Cordina indicated that he “was surprised
and knew nothing about the investigation.”
days later, Sandidge received a termination letter informing
her that she was being fired for failing to maintain an
arm's-length relationship with Spinetto. Doc. 1-2,
Pl.'s Orig. Pet. ¶ 3.13. Sandidge asserts that
Fannie Mae's reasons for firing her are false and pretext
for illegal discrimination. See Id. ¶¶
4.01-5.07. Shortly after she was terminated, Sandidge says,
Fannie May employee Ray Donovan obtained a list of all
employees accused of dealing with Spinetto and reported them
to his wife, indicating that they had been fired for
receiving improper kickbacks. Id. ¶ 3.15.
Donovan's wife works at the Federal Home Loan Mortgage
Corporation (Freddie Mac), Fannie Mae's main competitor.
Id. Sandidge claims that Donovan did this to prevent
her and other Spinetto-affiliated employees from having a
fair shot at gaining employment with Freddie Mac, and in so
doing impugned her professional image and accused her of
committing a crime. Id.
basis, Sandidge filed suit in state court against Fannie Mae
and Donovan. See Doc. 1-2, Pl.'s Orig. Pet. She
asserted the following claims: (1) gender discrimination in
violation of the Texas Commission on Human Rights Act
(TCHRA), Tex. Labor Code §§ 21.001 et
seq., against Fannie Mae; (2) age discrimination in
violation of the Texas Labor Code against Fannie Mae; and (3)
defamation against both Fannie Mae and Donovan. Doc. 1-2,
Pl.'s Orig. Pet. ¶¶ 4.01-6.07.Fannie Mae, in
turn, removed the case to this Court. See Doc. 1,
Notice of Removal. Sandidge moved to remand the case to state
court, but the Court denied her motion and dismissed
Sandidge's claims against Donovan after finding that he
had been improperly joined. See Doc. 25, Order 7-8.
only claims remaining are those against Fannie Mae for gender
and age discrimination under the TCHRA and defamation. Fannie
Mae's Motion for Summary Judgment (Doc. 46) seeks to
dismiss all three. Sandidge has responded to Fannie Mae's
Motion, and Fannie Mae has replied. See Doc. 51,
Pl.'s Resp.; Doc. 53, Def.'s Reply to Pl.'s Resp.
[hereinafter Def.'s Reply]. Thus, Fannie Mae's Motion
is ripe for the Court's review.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute “is ‘genuine'
if the evidence is sufficient for a reasonable jury to return
a verdict for the non-moving party.” Burrell v. Dr.
Pepper/Seven Up Bottling Grp., 482 F.3d 408, 411 (5th
Cir. 2007). And a fact “is ‘material' if its
resolution could affect the outcome of the action.”
summary judgment movant bears the burden of proving that no
genuine issue of material fact exists. Latimer v.
Smithkline & French Labs., 919 F.2d 301, 303 (5th
Cir. 1990). Usually, this requires the movant to identify
“those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). But if the non-movant ultimately bears the
burden of proof at trial, the movant may satisfy its burden
just by pointing to the absence of evidence supporting the
non-movant's case. Id. at 322-23.
movant meets that burden, then it falls to the non-movant to
“show with significant probative evidence that there
exists a genuine issue of material fact.” Hamilton
v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.
2000) (internal quotation marks omitted) (citing Conkling
v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994)). And
significant probative evidence is just that: significant.
See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (per curiam). “[M]etaphysical doubt as
to material facts, ” “conclusory allegations,
” “unsubstantiated assertions, ” or a mere
“scintilla of evidence” will not do.
Id.(internal citations and quotation marks omitted).
Rather, “the non-movant must go beyond the pleadings
and present specific facts indicating a genuine issue for
trial.” Bluebonnet Hotel Ventures, L.L.C. v. Wells
Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014)
(citing Celotex, 477 U.S. at 324).
sure, the court views evidence in the light most favorable to
the non-movant when determining whether a genuine issue
exists. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir.
2000). Yet it need not “sift through the record in
search of evidence to support a party's opposition to
summary judgment.” Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16
& n.7 (5th Cir. 1992)). Simply put, the non-movant must
“identify specific evidence in the record” and
“articulate the precise manner in which that evidence
supports [its] claim.” Id. If it cannot, then
the court must grant summary judgment. Little, 37
F.3d at 1076.
Objections to Evidence
analyzing Sandidge's discrimination claims, the Court
must first address two evidentiary objections. First,
Sandidge objects to Fannie Mae's submission of a Final
Award from its earlier arbitration efforts with Sandidge.
Doc. 51, Pl.'s Resp. 25-26; see also Doc. 48-1,
Def.'s App. 467, Ex. 37, Final Award. The Court
OVERRULES Sandidge's objection as moot
because the evidence in question is not considered in
rendering this decision.
Fannie Mae objects to Sandidge's submission of the
declaration of Keitha Jefferson. Doc. 54, Def.'s Obj. to
Pl.'s Summ. J. Evid. 1 [hereinafter Def.'s
Obj.]. Keitha Jefferson was formerly employed by
Fannie Mae as a real estate asset analyst and foreclosure
specialist. See Doc. 52, Pl.'s App. 660, Ex. 11,
Jefferson Decl. Jefferson claims that Fannie Mae improperly
terminated her after a biased investigation by Arrington and
another investigator named Meghan Chadsey in retaliation for
Jefferson's reporting unpaid overtime hours and
requesting disability accommodation. Id. at 661-64.
Sandidge offers her declaration to challenge the
trustworthiness and character of Fannie Mae's
investigators, Chadsey and Arrington, as well as to support
her defamation claim. See Doc. 55, Pl.'s Resp.
to Def.'s Obj. 2-3 [hereinafter Pl.'s Obj. Resp.].
Mae argues that Jefferson's Declaration should be
excluded because it is irrelevant, conclusory, hearsay, not
based on personal knowledge, and improper opinion testimony.
Doc. 54, Def.'s Obj. 1-4. Sandidge, by contrast, argues
that Jefferson's testimony is intimately relevant in that
it speaks to Fannie Mae's investigator's bad faith.
Doc. 55, Pl.'s Obj. Resp. 2. Further, Sandidge continues,
Jefferson's Declaration is not hearsay because it is
offered in support of Sandidge's defamation claim to
demonstrate damage to her reputation and based on party
admissions by Fannie Mae's employees. Id. at
3-4. Nor, Sandidge says, is it improper opinion evidence
because it is based on Jefferson's own experience.
Court agrees with Fannie Mae. To the extent that Sandidge
offers Jefferson's Declaration to attack Chadsey and
Arrington's credibility, the Court is unpersuaded.
Credibility determinations are not allowed at the summary
judgment stage. See Baylor Cty. Hosp. Dist. v.
Burwell, 163 F.Supp.3d 372, 377 (N.D. Tex. 2016)
(“The Court cannot make a credibility determination in
light of conflicting evidence or competing
inferences.”). Yet even if the Court were to overlook
that shortcoming, Jefferson's Declaration is almost
entirely unrelated to facts at hand. Jefferson was employed
by Fannie Mae at the same time as Sandidge but the
similarities end there-the two held different jobs, were
fired for purportedly different reasons, and asserted
different claims. See Doc. 52, Pl.'s App.
660-64, Ex. 11, Jefferson Decl. So her testimony, in addition
to being replete with conclusory allegations, is irrelevant
save for a single paragraph that could potentially relate to
Sandidge's defamation claim:
6. Warren left Fannie Mae in approximately February 2013.
Shortly after her departure, I heard statements to the effect
that she had been fired for improper relationships and
accepting gifts from sales people in the field. I heard
similar statements about former employee Lynette Sandidge. I
heard these statements from Marilyn Bynum-Wilson, and she
indicated she got the information from other Fannie Mae
Id. at 661. In other words, Sandidge seeks to admit
testimony from a former employee that another employee heard
from other unidentified employees who allegedly “heard
statements to the effect that” Sandidge had improper
relationships and accepted gifts from sales people. Or more
accurately, statements to that effect about Warren-the
plaintiff in this dispute's companion case-and
“similar statements” about Sandidge.
the restriction on credibility determinations mentioned
above, evidence at the summary judgment stage is generally
“subject to the same rules that govern the
admissibility of evidence at trial.” Erhhardt v.
Elec. & Instr. Unltd. of La., 220 F.Supp.2d 649, 658
(E.D. Tex. 2002). On that basis-and as Fannie Mae notes in
its Objection-the Court concludes that the above statement is
hearsay. See Wells v. Shop Rite Foods, Inc., 474
F.2d 838, 839-40 (5th Cir. 1973) (affirming trial court's
exclusion on hearsay grounds testimony from a witness that
several of the defendant's employees had heard that the
plaintiff had been discharged for stealing); Westfall v.
GTE N. Inc., 956 F.Supp. 707, 713 (N.D. Tex. 1996)
(excluding on hearsay grounds, among other things, testimony
from one of the defendant's employees that she was told
by another unidentified employee that the plaintiff had been
discharged for “misuse of funds with a
customer”); see also Doc. 54, Def.'s Obj.
bottom, most everything in Jefferson's Declaration is
irrelevant to the question of whether Fannie Mae
discriminated against Sandidge because of her gender or age.
See Fed. R. Evid. 401. And the rest is either
hearsay or of such slight probative value that to allow its
entry would confuse the issue rather than resolve it.
See Fed. R. Evid. 403. For those reasons, the Court
SUSTAINS Fannie Mae's objection to
The McDonnell Douglas Burden Shifting Framework
referenced, Sandidge asserts two claims against Fannie Mae
under the TCHRA: gender discrimination and age
discrimination. The Court analyzes both under the
McDonnell Douglas burden shifting framework.
TCHRA prohibits employers from discharging or otherwise
discriminating against employees because of, among other
things, sex and age. Tex. Labor Code § 21.051. That
protection parallels protections provided by Title VII of the
Civil Rights Act of 1964 and other “federal
antidiscrimination statutes.” Reed v. Neopost USA,
Inc., 701 F.3d 434, 439 (5th Cir. 2012) (citing
Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 633-34 (Tex. 2012)). Thus, courts apply analogous
federal statutes and cases to claims under the TCHRA.
Mission Consol., 372 S.W.3d at 634; see also
Quintana v. Fujifilm N. Am. Corp., 96 F.Supp.3d 601,
610-11 (N.D. Tex. 2015).
that in mind, “[a] plaintiff may prove employment
discrimination with either direct or circumstantial
evidence.” Quintana, 96 F.Supp.3d at 611.
Sandidge relies on circumstantial evidence. So the Court
analyzes her claims “under the three-step,
burden-shifting analysis embodied in the ‘modified
McDonnell Douglas approach.'” Jackson
v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (quoting
Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc.,
482 F.3d 408, 411 (5th Cir. 2007)).
the plaintiff must “establish a prima facie case of
discrimination.” Id. “‘Although
the precise elements of this showing will vary depending on
the circumstances, the plaintiff's burden at this stage
of the case is not onerous.'” Reed, 701
F.3d at 439 (quoting Mission Consol., 372 S.W.3d at
633). Second, if the plaintiff shows a prima facie case, then
“the ‘burden shifts to the employer to show a
legitimate, nonretaliatory reason for the adverse employment
action.'” Id. (quoting Black v. Pan
Am. Labs., L.L.C., 646 F.3d 254, 259 (5th Cir. 2011)).
“This is a burden of production, not persuasion, on the
employer's part, and it ‘can involve no credibility
assessment.'” Bender, 2017 WL 1078509, at
*6 (quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 509 (1993)). Third, ...