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Flynn v. The Northern Trust Co.

United States District Court, W.D. Texas, Austin Division

November 3, 2017

NANCY FLYNN
v.
THE NORTHERN TRUST COMPANY

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HON. LEE YEAKEL, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. GENERAL BACKGROUND

         From 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.

         At the 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.

         Flynn 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.

         On 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.

         On June 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 teller duties.

         On June 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 Flynn's claims.

         II. STANDARD OF REVIEW

         Summary 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.

         Once 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.

         III. ANALYSIS

         A. Flynn's Sex ...


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