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Moore v. Capital One, N.A.

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

June 13, 2017

CAROLYN A. MOORE, Plaintiff,
CAPITAL ONE, N.A., Defendant.



         Plaintiff 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”), [1] 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 today.


         In June 2006 Capital One hired Moore as a temporary Clerical Associate in its Distribution Center Department, also known as the Vault Department.[2] 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.

         The 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.

         Capital 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.

         Although 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[3] 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.

         On 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.[4] 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.

         In June 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.[5]

         On 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, ” Cornejo noted:

[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 various times.

         On 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.

         On 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.”[6] Id. at 222.

         In 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.[7] According to Capital One, Moore refused during the meeting to take ownership of the error and appeared to be frustrated and withdrawn.

         In 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.

         In 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.

         On 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 Memo concluded:

[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.

         Moore's 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.

         Following 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.

         The 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.

         Moore 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.

         On May 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.

         The 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.

         Capitol 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.

         After 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 motion.


         As a 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.

         Additionally, 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).


         Because 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.


         The 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[8] burden-shifting framework applies to all three claims.[9]

         It is 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.

         First, 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).

         Second, 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 ...

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