United States District Court, N.D. Texas, Dallas Division
CAROLYN A. MOORE, Plaintiff,
CAPITAL ONE, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE
Carolyn A. Moore (“Moore”) brings this action
against defendant Capital One, N.A. (“Capital
One”), alleging claims for race and age discrimination
and retaliation under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et
seq.; the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.;
and the Texas Commission on Human Rights Act
(“TCHRA”),  Tex. Labor Code Ann. § 21.001
et seq. (West 2015). Capital One moves for
summary judgment. For the reasons that follow, the court
grants the motion and dismisses this action by judgment filed
2006 Capital One hired Moore as a temporary Clerical
Associate in its Distribution Center Department, also known
as the Vault Department. The following year, Vault Department
Manager in Training, Seth Carillo (“Carillo”),
hired Moore as a full-time, permanent Clerical Associate II.
At the time Capital One hired Moore as a permanent employee,
she was 47 years old.
Vault Department maintains collateral files for Capital One
Auto Finance and stores secure information and documentation
relating to car and home loans. Associates in the Vault
Department work on various processes that involve maintaining
and organizing contract files and supporting documentation.
Capital One expects associates in the Vault Department,
including Moore, to maintain quality assurance
(“QA”) standards by limiting the percentage of
errors they make while working a particular process.
According to Capital One, each month, auditors in Capital
One's Audit Department audit a sampling of processes
completed by each associate. Errors are then categorized
based on a level of risk (high, medium, or low) to Capital
One's business and customers, and the associate's
monthly QA average is decreased based on the number and risk
alert level of any errors discovered by the QA auditor.
One's “Vault Performance Expectations”
document (which Capital One maintains was in effect when
Moore's employment was terminated), states that
“[q]uality must be higher than 98% for Monthly
Average.” D. App. 167. It then lists the following
“Risk Alerts” in a rolling 90-day period: one
risk alert-verbal warning; two risk alerts-written warning;
three risk alerts-conduct memo; four risk alerts-termination.
Id. Capital One maintains that an error must be
discovered by the QA department in order for it to affect an
associate's monthly QA score.
Moore received strong performance reviews from 2008 through
2011, Capital One maintains that, during Moore's annual
reviews for these years (including in 2009 when Moore
indicated to Carillo that she would like to “work on
becoming a lead for the department, ” id. at
175), Carillo repeatedly counseled Moore about her need to
improve in the areas of influence and communication. Capital
One also contends that, during Moore's 2010 performance
review, Carillo suggested that Moore join a Quality
Circle team in order to improve in the
competencies of influence and communication. Rather than join
a Quality Circle, Moore joined the I-Team, an organization
that plans fun activities and rally events and recognizes
associates' birthdays. During Moore's 2011
performance review, Carillo again recommended that Moore join
a Quality Circle because it “would help her grow on how
a process is built and show how to influence a team.”
Id. at 181. Moore never joined a Quality Circle.
April 25, 2012 Senior Unit Manager Annette “Bre”
Galvan (“Galvan”) sent an email to all permanent
associates in the Vault Department to gauge their interest in
becoming a Team Lead. At the time, Larisa Dzhavadova
(“Dzhavadova”) was the only Team Lead in the
department, but Galvan and Carillo determined that another
Team Lead was necessary to keep up with the growth and
demands of the department. Moore responded to Galvan's
email expressing interest in the position.
2012 Carillo moved to a position outside of the Vault
department and Jorge Cornejo (“Cornejo”) replaced
Carillo as Manager in Training. Maegan Stanaland
(“Stanaland”) replaced Galvan as Senior Unit
Manager and served as Cornejo's immediate supervisor. In
October 2012 Cornejo and Stanaland promoted Anthony Vogel
(“Vogel”), a 27-year-old Caucasian, to the
position of Team Lead. Moore contends that Dzhavadova
provided Vogel the training to become a Team Lead and that he
received the promotion based, in part, on his alleged
romantic relationship with Dzhavadova.
Moore's 2012 annual performance review, which Capital One
maintains Cornejo completed before December 20, 2012, Cornejo
rated Moore as “inconsistent” on seven of nine
competencies. Under “Development Opportunities, ”
[Moore] has several opportunities in the areas of
communication, teamwork and results focused. [She] does not
communicate effectively with peers and supervisors. . . . She
avoids addressing concerns with her team lead or asking for
feedback. When asked to request written feedback from her
team leads she said no because she felt that she would only
received negative feedback. Her peers have expressed that she
is at times non-responsive or unapproachable. In both, team
meetings and events, she has shown to be disengaged by
sitting away from the team instead of joining the group. When
asked if [she] would be interested in volunteering to help
another department, her response was that her peer should do
it. She is not sought out by her team member[s] for input
despite her tenure in the team.
[Moore] is part of the QA pulling team but has received
several errors in her overall QA score during the year.
Often, she has also been found to fill out trackers
improperly and move files . . . to the wrong location. Her
production has also shown to be inconsistent and often does
not meet her daily goal which in the past contributed to a
backlog of files that needed to be reviewed.
Id. at 182. During her deposition, Moore admitted
that her monthly QA scores for 2012 were unacceptable at
January 28, 2013 Moore told Stanaland that she believed she
was passed over for the Team Lead position given to Vogel
because she was African-American and older. She also said
that she felt Cornejo had harassed her in a recent meeting by
responding to her in a harsh manner. Moore then contacted HR
Specialist Debbie Sterling (“Sterling”), and,
when they met on February 4, 2013, Moore told Sterling that
she had been discriminated against by not being promoted to
Team Lead; that Dzhavadova had refused to train her to become
a Team Lead but trained Caucasian employees; and that Cornejo
had retaliated against her by responding to her harshly
during a meeting. Sterling conducted an investigation into
Moore's complaints, but concluded that she could not
substantiate any of Moore's claims for race and age
discrimination, harassment, or retaliation and informed Moore
of the results of her investigation on February 15, 2013.
February 22, 2013 Moore filed with the Equal Employment
Opportunity Commission (“EEOC”) a charge of
discrimination (“EEOC Charge”), alleging race and
age discrimination and retaliation beginning on May 1, 2012.
In the EEOC Charge, she alleged that she was denied training
opportunities that her younger Caucasian counterparts were
given to become Team Leads; she was passed over for a
promotion to a Team Lead and the job was given to a younger
Caucasian counterpart; and she was retaliated against after
she reported the discrimination “earlier this
year” by being “given a poor performance review a
week later despite having no previous performance issues and
receiving good performance reviews.” Id. at
November 2013 Melissa Gandara Whitley
(“Gandara”), Manager in Training-Records
Management, became Moore's immediate supervisor. When
Moore received the lowest QA score (98.33%) of all the
associates in the Vault Department for the month of November,
Gandara and Cornejo discussed Moore's risk alert/error
with her in a “10/10” meeting. According to
Capital One, Moore refused during the meeting to take
ownership of the error and appeared to be frustrated and
January 2014 Moore was advised that, in addition to the PF
Checks and Release process she was already working on, she
would begin working the Vault E-Mail Box process. When Moore
questioned the decision to assign her to the Vault E-Mail
Box, Gandara explained that working the Vault E-Mail Box
would be a good developmental opportunity for Moore. Later
that month, Gandara sent Moore an email providing her with
the names of three Capital One Univeristy (“COU”)
courses that Gandara wanted Moore to complete to improve her
written communication skills. Moore failed to complete all
three courses, despite Gandara's request that she do so.
Moore's 2013 performance review, Gandara noted the areas
in which she felt Moore needed improvement:
[o]ne of [Moore]'s opportunities is communication. . . .
She has shown to have grammar, punctuation, and spelling
errors in her writing. . . . During verbal communication,
[Moore] often rolls her eyes if she does not agree with an
idea and sometimes has difficulty creating two-way dialogue.
[Moore] has difficulty with taking direction from her team
lead and does not assume positive intent. She does not seek
feedback and when it is given she is reluctant to admit
mistakes. Many times [Moore]'s response to a question is
“I don't know, ” and does not make an effort
to investigate or provide a reasonable solution.
[Moore]'s job specific skills are also an area of
opportunity. She has little knowledge of MS office which is
necessary for many tasks that would be needed for her to grow
in the department. She requires a lot of guidance when
working with Excel, while preparing and pulling sheets and
more recently has shown similar errors while working with
mailboxes in Outlook.
Id. at 184. Gandara also noted Moore's
“desire to become a formal leader in the department,
” and stated her belief that Moore could “move
forward in the right direction” by being receptive to
feedback and by leveraging Capital One's educational
resources (including its COU resources) to improve her
written communication, verbal communication, and computer
skills. Id. Capital One contends that, when Moore
met with Gandara, Cornejo and Kelly Russell
(“Russell”), a Department Operations Manager, to
review her 2013 performance review, Moore exhibited
“unprofessional and combative behavior” by, for
example, telling Gandara that she should fix the grammatical
errors in Moore's performance review before attempting to
criticize Moore about grammatical mistakes. D. Br. 13.
February 27, 2014 Moore was issued a “Conduct Memo for
Being Disrespectful to Co-workers, ” (“Conduct
Memo”). D. App. 275. According to the Conduct Memo,
Moore “ha[d] recently demonstrated concerning behavior
by becoming argumentative, disruptive and unprofessional when
communicating with her co-workers and managers, ” and
the memo detailed four examples of this behavior. The Conduct
[t]his Conduct Memo serves as a final warning. Though this
Conduct Memo will be active for a period of 90 days, should
[Moore] violate these expectations, or any other policy or
procedure of Capital One, either during or after this memo
timeframe, she could be subject to additional disciplinary
action up to and including immediate termination of
employment for cause.
Id. at 276.
overall QA score for April 2014 was 86.67%-the lowest QA
score of any associate in the department. As of April 30,
2014, Moore's year-to-date QA average was 95%, and her 12
month QA average was 97.5%, which was below Capital One's
98% quality standard expectation. Accordingly, on May 12,
2014 Gandara and Unit Manager Charles Christopher Craig
(“Craig”) issued a Performance Improvement Plan
(“PIP”) that required Moore to maintain a monthly
98% QA average for the next 90 days. As part of the PIP,
Moore was required to submit “an action plan within the
next five days that will demonstrate the actions needed for
immediate and sustained improvement.” Id. at
345. Capital One maintains that, during the meeting with
Gandara and Craig, Moore stated that she felt she was being
“harassed” and accused her managers of trying to
push her out of the company.
the meeting, Gandara emailed Sharon Wood
(“Wood”), who was employed in Associate
Relations, Human Resources, with a copy to Craig, a recap of
the meeting, including Moore's statement that she was
being “harassed.” Wood directed Craig to follow
up with Moore to find out why she felt harassed. Craig met
with Moore on May 13, 2014. During the meeting, Craig
discussed the 98% QA expectations for Moore's position,
but Moore claimed the standard was unrealistic. Moore advised
Craig that she felt harassed because her work was being
“tampered with” after she reported
discrimination. Id. at 122. Craig encouraged Moore
to come talk to him or to contact Associate Relations if she
felt that something impeded her progress.
following day, Gandara met with Moore and provided her with a
copy of Capital One's Vault Performance Expectations
document. Gandara also made several suggestions of ways Moore
could improve her performance. According to Capital One,
Moore was unresponsive to Gandara's suggestions and
refused to take ownership of her performance, again claiming
that Capital One's 98% QA expectation was too high.
Capitol One maintains that, in an “effort to ensure
Moore is successful in her process, ” Gandara decided
to remove Moore from working the Vault E-Mail Box.
Id. at 434.
submitted an action plan, as the PIP required. According to
Capital One, the action plan Moore submitted was very broad
and failed to identify any specific actions she planned to
take to improve her performance. At the suggestion of Wood,
Gandara asked Moore to expand her action plan to include
specific steps she intended to take to improve her
performance. In her revised action plan, under
“Associate Comments, ” Moore stated,
“[b]ecause of factors surrounding my [QA], production
and other factors, I don't agree with having to take the
measure of writing a PIP. I feel this is an attack against
me. My job has been threaten[ed] because of it.”
Id. at 355.
21, 2014 Gandara emailed Moore and asked her to review the
unidentified queue because Dzhavadova had found several
errors in Moore's work. According to Capital One, instead
of immediately seizing the opportunity to correct her errors,
Moore questioned whether her daily production would be
affected if she took the time to identify and correct the
errors. Gandara then discussed the issue in person, but,
according to Capital One, Moore became very combative, raised
her voice at Gandara, and accused Gandara of harassing her
because Gandara would not identify the errors for Moore. On
May 27, 2014, when Gandara asked whether Moore was using any
of the techniques or suggestions Gandara had discussed with
her on May 14, 2014, Moore responded that she was not using
any of the techniques or suggestions because she felt the way
she already did it was fine.
following week, QA Auditor Whitney Tingdale
(“Tingdale”) found two high risk errors that
Moore had made in the queue. Moore's overall QA score for
May 2014 was 93.33%, which was the lowest QA score in the
entire department. Moore's May 2014 QA score failed to
comply with the terms of her PIP, which required Moore to
maintain a 98% monthly QA average for May.
One maintains that, as a result of Moore's increasingly
combative and defiant behavior, her accumulation of four high
risk alerts with a 90-day period, and her failure to comply
with the terms and conditions of her PIP, Gandara and Craig
decided to terminate her employment. Accordingly, on June 3,
2014, Capital One terminated Moore's employment for
unsatisfactory performance and having a poor attitude.
Capital One maintains that, at the time Gandara and Craig
decided to terminate Moore's employment, they were
unaware that she had made complaints of discrimination,
harassment, and retaliation with Capital One in January 2013
and were unaware that she had filed a charge of
discrimination with the EEOC in February 2013.
the EEOC dismissed Moore's EEOC Charge and issued her a
right-to-sue letter, Moore sued Capital One in state court,
alleging claims for discrimination and retaliation under the
TCHRA, Title VII, and the ADEA based on Capital One's
denying her training opportunities, denying her a promotion,
giving her a poor performance review, and terminating her
employment. Capital One removed the case to this court and
now seeks summary judgment. Moore opposes Capital One's
threshold matter, the court notes that Moore has failed to
comply with certain procedural requirements of this
court's local summary judgment rules. N.D. Tex. Civ. R.
56.6(a) provides that summary judgment materials must be
included in an appendix. Rule 56.6(b)(3) requires that
“[e]ach page of the appendix must be numbered legibly
in the lower, right-hand corner. The first page must be
numbered as ‘1, ' and succeeding pages must be
numbered sequentially through the last page of the entire
appendix.” Instead of a properly-paginated single
appendix, Moore has filed three individual appendix
“Exhibits, ” each of which is separately
numbered. Additionally, Moore has failed to comply with Rule
56.5(c), which provides that “[w]hen citing materials
in the record, as required by Fed.R.Civ.P. 56(c)(1)(A) or
(B), a party must support each assertion by citing each
relevant page of its own or the opposing party's
appendix.” Instead, Moore's brief cites generally
to her affidavit and the affidavits of two coworkers, without
pinpoint citations. See, e.g., P. Br. 7 (citing, for
proposition that Moore “possessed these qualifications
moreso than Anthony Vogel, the person who was given the job
sought by Plaintiff, ” “Affidavits of Moore,
Smith and Shaver”). Despite these procedural errors,
because the three affidavits on which Moore relies are
relatively short, the court will consider them in deciding
Capital One's motion for summary judgment.
Moore's brief does not contain a statement of facts. The
court therefore draws its recitation of the facts from
Moore's complaint, Capital One's apparently
uncontested statement of facts contained in its summary
judgment brief, and the factual allegations contained in
Moore's summary judgment response brief (insofar as they
are supported by evidence contained in Moore's appendix).
Moore will bear the burden of proof at trial on her claims
for discrimination and retaliation under the ADEA, Title VII,
and the TCHRA, Capital One can meet its summary judgment
obligation by pointing to the absence of admissible evidence
to support Moore's claims. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once Capital One does
so, Moore must go beyond her pleadings and designate specific
facts demonstrating that there is a genuine issue for trial.
See Id. at 324; Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An
issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmovant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmovant's failure to produce proof as to any essential
element renders all other facts immaterial. See TruGreen
Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D.
Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory
where the nonmovant fails to meet this burden.
Little, 37 F.3d at 1076.
court will consider together Moore's age discrimination
claim under the ADEA and her race discrimination claim under
Title VII and the TCHRA. The familiar McDonnell
Douglas burden-shifting framework applies to
all three claims.
unlawful under the ADEA and the TCHRA “to discharge any
individual or otherwise discriminate against any individual .
. . because of such individual's age.” 29 U.S.C.
§ 623(a)(1); see also Tex. Labor Code Ann.
§ 21.051(1) (West 2015) (making it an unlawful
employment practice to discharge or discriminate against an
individual because of age.). Title VII and the TCHRA make it
unlawful for an employer to discriminate against an employee
on the basis of her race. See 42 U.S.C. §
2000e-2(a)(1); Tex. Labor Code Ann. §
21.051(1). To prove her age and race discrimination claims,
Moore can rely on direct or circumstantial evidence. See,
e.g., Flanner v. Chase Inv. Servs. Corp., 600 Fed.Appx.
914, 917 (5th Cir. 2015) (per curiam) (ADEA claim);
Dailey v. Whitehorn, 539 Fed.Appx. 409, 411 (5th
Cir. 2013) (per curiam) (Title VII claim). If Moore relies on
circumstantial evidence, her claim is analyzed under the
burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See, e.g.,
Reynolds v. Sovran Acquisitions, L.P., 650 Fed.Appx.
178, 180 (5th Cir. 2016) (Title VII and ADEA claims);
Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th
Cir. 2012) (“Where, as here, a plaintiff relies on
circumstantial evidence, Texas courts apply the familiar
McDonnell Douglas burden-shifting framework to
[discrimination] claims under the TCHRA.”). This
framework consists of three stages.
Moore must establish a prima facie case of discrimination,
which “creates a presumption that [Capital One]
unlawfully discriminated against [her].” Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
(1981). Moore may establish a prima facie case for
discrimination based on her race and age by showing:
“(1) she is a member of a protected class, (2) was
qualified for the position, (3) was subjected to an adverse
employment action, and (4) was treated less favorably than
similarly-situated employees who are not members of her
protected class.” Munoz v. Seton Healthcare,
Inc., 557 Fed.Appx. 314, 320 (5th Cir. 2014) (per
curiam) (citing Wesley v. Gen. Drivers, Warehousemen
& Helpers Local 745, 600 F.3d 211, 213 (5th Cir.
2011)) (addressing claims under Title VII and ADEA).
the burden shifts to Capital One to articulate a legitimate,
nondiscriminatory reason for the employment action taken
against Moore. See St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506-07 (1993). Capital One's
burden is one of production, not proof, and involves no
credibility assessments. See, e.g., West v. Nabors
Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003).
This “burden requires the production of admissible
evidence in support of its nondiscriminatory ...