United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
LEE YEAKEL, UNITED STATES DISTRICT JUDGE
the Court are: Defendant The Northern Trust Company's
Motion for Summary Judgment filed on July 21, 2017 (Dkt. No.
29); Plaintiffs Response to Defendant's Motion for
Summary Judgment, filed on August 4, 2017 (Dkt. No. 31); and
Defendant's Reply, filed on September 27, 2017 (Dkt. No.
39). On August 14, 2017, the District Court referred
the-above Motion to the undersigned for Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B),
Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix
C of the Local Rules.
1999 until August 2012, Nancy Flynn ("Flynn")
worked in The Northern Trust Company's ("NTC")
Houston office as a Trust Administrator and also served as an
officer and a Vice-President. In August 2012, Flynn applied
for a transfer to NTC's Austin office as a Trust
Administrator because she and her husband wanted to relocate
to Austin. NTC denied the transfer request citing its concern
that Flynn would not be able to service her trust clients
from the Austin office. Still seeking a transfer to Austin,
Flynn next applied for the position of Associate Personal
Investment Portfolio Manager ("APIPM") in the
Austin office, aposition that carried a lower title and a
lower salary than her previous position in Houston. NTC
approved Flynn's second transfer request and on September
24, 2012, Flynn began working in the Austin office in the
position of APIPM. In addition to working as an APIPM, Flynn
continued to serve as the Trust Administrator for a number of
trust accounts and was a member of NTC's Western Region
Client Support Services ("CSS") team, which
provided state-wide support for investment portfolio
managers. Flynn was the only female Senior Investment
Associate on her CSS team.
end of 2012, NTC hired Greg Yokum as the Portfolio Manager
for the Austin office. Shortly thereafter, Flynn contends
that Yokum began to make inappropriate sexist comments to her
such as that he was used to working with females who referred
to him as their "work husband" and that they
"took care" of him, unlike Flynn. Exh. 1 to Dkt.
No.31 at 76. Flynn also contends that Yokum treated her
differently than her male counterparts such as changing her
deadlines and threatening that she would be terminated if she
did not meet those deadlines. Flynn alleges that she
complained to NTC Texas President Jeff Early some time in
early 2013 about Flynn's allegedly discriminatory
comments but that Early just told her to "work with him
as best I could." Id. at 76-77. Flynn contends
that in January 2014, Yokum angrily charged at her while she
was sitting at her desk and that she was afraid he was going
to hit her. Id. at 91, 106-07. Immediately
thereafter, Flynn complained about these incidents to her
supervisor, Karene Arkaifie, who in turn reported the matter
to human resources ("HR"). After conducting an
investigation-which Flynn contends was inadequate-HR
concluded that both Flynn and Yokum were at fault.
contends that after she filed the internal discrimination
complaint against Yokum, her supervisors began to retaliate
against her. Specifically, on February 7, 2014, Flynn
received a negative annual performance review from Arkaifie
and was placed on a Performance Improvement Plan. Arkaifie
also gave Flynn a written warning instructing her not to be
too emotional in the workplace. Arkaifie did grant
Flynn's request to be moved to a different desk further
away from Yokum.
February 18, 2014, Flynn was informed that she would have to
start performing backup teller duties. Flynn complained to
Arkaifie that she had concerns about working as a backup
teller while also performing as a Trust Administrator and
APIPM. In addition, Flynn complained to Arkaifie that she was
assigned to the teller backup duties because she was a woman.
In late April, Arkaifie informed Flynn that she would no
longer have to perform backup teller duties. However, while
Arkaifie was out on medical leave, Arkaifie's supervisor,
Frank Chavez, called Flynn and told her that she would have
to perform backup teller duties and warned her that there
would be repercussions if she refused to do so. Chavez also
told Flynn not to contact Arkaifie about the matter.
4, 2014, after discovering that Flynn had contacted Arkaifie
while she was on leave and had complained about the backup
teller duties, Chavez issued Flynn a written warning and
placed her on a performance improvement plan. Chavez also
warned her that if she did meet the expectations of the
improvement plan she could be terminated. Flynn contends that
on June 17, 2017, Chavez and Arkaifie called Flynn and told
her that she had to perform the back up teller duties and be
a "team player" or she would be terminated. Chavez
also informed her that she would no longer be permitted to
work at home on Fridays. The next day, on June 18, 2017,
Flynn submitted her resignation. Flynn contends that because
she was "[f]acing the choice of imminent termination or
performing duties she believed were highly improper and that
violated policy and banking regulations, " she had no
choice but to resign, and thus her resignation was a
constructive discharge. Dkt. No. 31 at 5. Notablty, NTC hired
a male to replace Flynn, and he was not required to perform
8, 2016, Flynn filed this lawsuit against NTC alleging sex
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq., and Chapter 21 of the Texas Labor
Code, as amended, TEX. LABOR CODE § 21.001 et
seq. NTC moves for summary judgment on all of
STANDARD OF REVIEW
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as amatter of
law. FED. R. ClV. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25 (1986); Washburn v.
Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute
regarding a material fact is "genuine" if the
evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
ruling on a motion for summary judgment, the court is
required to view all inferences drawn from the factual record
in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986); Washburn, 504 F.3d at 508.
Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indent. Co. of Conn., 465 F.3d 156, 164 (5 th
Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential
to its case and on which it will bear the burden of proof at
trial, summary judgment must be granted. Celotex,
477 U.S. at 322-23.
Flynn's Sex ...