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Sandidge v. Federal National Mortgage Association

United States District Court, N.D. Texas, Dallas Division

May 31, 2017




         Before 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 Motion.[1]



         This is 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.

         By way 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. Id.

         To 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.

         The 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.

         Sandidge 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.

         Spinetto 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.).

         The 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.).

         In all, 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[3]-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.).

         According 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.

         Fannie 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.[4] 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).

         Listed 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.

         Fannie 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).

         Fannie 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.

         The 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 Neugent.

         Fannie 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.

         For 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.).

         As a 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.

         Fannie 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.).

         Fannie 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.).

         Fannie 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.[5] Id.

         Sandidge 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.

         Still, 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.).

         That 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.

         Whatever 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.

         Fannie 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.

         In 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.” Id.[6]

         A few 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.

         On that 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.[7]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.

         So the 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.



         Summary 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.” Id.

         The 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.

         If the 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).

         To be 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.



         A. Objections to Evidence

         Before 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.

         Second, 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.].[8] 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.].

         Fannie 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. See id.

         The 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 employees.

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.

         Notwithstanding 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. 2-3.

         At 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 Jefferson's Declaration.

         B. Discrimination Claims

         1. The McDonnell Douglas Burden Shifting Framework

         As referenced, Sandidge asserts two claims against Fannie Mae under the TCHRA: gender discrimination and age discrimination.[9] The Court analyzes both under the McDonnell Douglas burden shifting framework.

         The 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).

         With 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.[10] 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)).

         First, 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, ...

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