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Santos v. Coleman World Group, LLC

United States District Court, W.D. Texas, El Paso Division

November 14, 2017




         Presently before the Court is Defendants Coleman World Group, LLC, Coleman American Moving Services, Inc., and Coleman American Companies, Inc.'s (collectively "Coleman") "Motion for Summary Judgment" (ECF No. 19) filed on May 3, 2017. Therein, Coleman requests that the Court grant it summary judgment on all of Plaintiff Alma Doris Santos' ("Ms. Santos") asserted claims. Ms. Santos asserted wage violation and retaliation claims under the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq., and national origin and color discrimination and retaliation claims under Title VII, 42 U.S.C. § 2000e et seq., and the Texas Commission on Human Rights Act (the "TCHRA"), codified in Chapter 21 of the Texas Labor Code. For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Coleman's motion.

         I. BACKGROUND

         Coleman is an established household goods moving and storage company and a provider of worldwide relocation and transportation services.[1] Coleman is headquartered in Dothan, Alabama, but maintains at least one facility in El Paso, Texas.[2] Coleman's business in El Paso focuses on providing moving, relocation, and transportation services primarily to the military and military families based at and around Fort Bliss.[3] Coleman's hierarchy in El Paso consists of administrative and sales employees, drivers, warehouse associates, helpers, and packers reporting to the General Manager and the Dispatch Supervisor/Operations Manager, who in turn report to the Regional Vice President for Coleman locations in Texas and Louisiana.[4]

         Ms. Santos is a brown-skinned, Hispanic, Mexican-American woman whom Coleman rehired on June 24, 2014, to work as a non-CDL driver and packer in El Paso.[5] Ms. Santos had previously worked for Coleman's affiliate, Allied Van Lines, from 2000 to 2005 and Coleman from 2005 to 2012 before voluntarily resigning.[6] As a packer and a non-CDL driver, Ms. Santos reported to David Buntyn ("Buntyn") and Chris Regan ("Regan"), the two General Managers during her time at Coleman, and Ed Bashur ("Bashur"), the Dispatch Supervisor/Operations Manager; in turn, Regan, Bashur, and Buntyn all reported to Joe Heinen ("Heinen"), the Regional Vice President.[7] During 2014, there was a transition of management authority from Buntyn, who was leaving at the end of the year, to Regan, who was to be the new General Manager.[8] Accordingly, Bashur and Regan were generally responsible for giving Ms. Santos her work assignments.[9]

         According to Heinen, Coleman's policy was to pay its packers and drivers an hourly rate[10] for the work they did in its warehouse and a rate according to its "hundred-weight scale"[11]for the shipping assignments outside the warehouse.[12] In the event that an employee's weekly earnings under the "hundred-weight scale" did not average the minimum wage, Heinen stated that Coleman's policy was for it to pay the difference.[13] Heinen also explained that Coleman's policy was to give its employees holiday pay when they worked the first scheduled work-day before the holiday and the first scheduled work-day after the holiday.[14]

         After Ms. Santos' rehiring in June 2014, the alleged wrongful conduct began with Sylinda James, a Caucasian-American packer and non-CDL driver, taking on the additional responsibilities of the Quality Control Inspector.[15] Ms. Santos had requested that Buntyn allow her to take on those additional responsibilities prior to them being given to Sylinda James.[16] Further, Ms. Santos' frustrations grew during her time with Coleman because she felt that Regan was purposefully giving her the lower-paying work assignments.[17] Her frustration with Coleman worsened when Regan told Ms. Santos during the week of Thanksgiving that there were no packing jobs that week in response to her requests for work.[18] These frustrations led Ms. Santos to complain to Buntyn and Regan after Thanksgiving that Regan refused to give her any assignments, which prevented her from receiving holiday pay.[19] Ms. Santos alleges that Buntyn told Regan to give her holiday pay for Thanksgiving; Coleman disputes this allegation.[20]

         Subsequently, on December 22, 2014, Ms. Santos again complained in a meeting-this time with Regan and Bashur-that she still had not received holiday pay for Thanksgiving.[21] From there, Coleman's version of events and Ms. Santos' version of events differ greatly. Ms. Santos' alleges that she also complained about not being paid enough for work assignments she did and not being paid at all for certain jobs.[22] She further asserts that Regan fired her the next day, December 23, 2014, and made a discriminatory comment.[23] Coleman alleges that Ms. Santos voluntarily resigned from her position on December 22, 2014, and Regan simply accepted her resignation on December 23, 2014.[24] However, it is undisputed that Ms. Santos' it employment with Coleman ended on December 23, 2014.[25]

         Following her separation from Coleman, Ms. Santos filed Charges of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and Texas Workforce Commission, Civil Rights Division ("TWC"), on February 2, 2015.[26] Ms. Santos' EEOC Charge alleges that she was discriminated against on the basis of her national origin and color and retaliated against by Coleman.[27] Subsequently, the EEOC and TWC issued Ms. Santos notices of her right to sue on her charges of discrimination and retaliation.[28] Ms. Santos then filed suit in El Paso County Court at Law No. 3 on May 10, 2016; Coleman removed the cause to this Court on June 13, 2016.[29]

         II. STANDARD

         Summary judgment is appropriate when "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 genuine dispute of fact exists when evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, and a fact is material if it 'might affect the outcome of the suit."' Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986))). In deciding whether a genuine dispute as to any material fact exists, a trial court considers all of the evidence in the record and "draw[s] all reasonable inferences in favor of the nonmoving party" but "refrain[s] from making credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Or., 476 F.3d 337, 343 (5th Cir. 2007) (citation and internal quotation marks omitted). Instead, the court "only 'give[s] credence to the evidence favoring the nonmovant [and] that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (second alteration in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)).

         Procedurally, the party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." EEOC v. LHC Grp., Inc., 113 F.3d 688, 694 (5th Cir. 2014) (alterations in original) (quotation marks and citation omitted). When the nonmoving party will bear the burden of proof at trial, the moving party may satisfy this responsibility by "point[ing] out the absence of evidence supporting the nonmoving party's case." Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir. 1990); see also Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544-45 (5th Cir. 2005).

         If the moving party succeeds, "the onus shifts to the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." LHC Grp., 773 F.3d at 694 (internal quotation marks and citation omitted). However, the nonmoving party "cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Davis v. Fort Bend Cty., 765 F.3d 480, 497 n.20 (5th Cir. 2014) (quotation marks and citation omitted).


         Ms. Santos asserts wage violation and retaliation claims under the FLSA and national origin and color discrimination and retaliation claims under Title VII and the TCHRA. The Court will address each claim in turn.

         A. Ms. Santos' FLSA Wage Violation Claims

         Ms. Santos contends that Coleman violated the FLSA by not complying with its minimum wage, overtime, and travel time requirements. First, the Court will consider her overtime and travel time violation claims. Subsequently, it will consider her minimum wage violation claim.

         1. Ms. Santos' Overtime and Travel Time Claims

         Ms. Santos alleges that Coleman violated the FLSA requirements when it failed to pay her for overtime and travel time. Pl's Resp. at 16-19. However, Coleman argues that Ms. Santos failed to allege a claim under the FLSA for overtime or travel time in her complaint. Defs.' Reply at 5-7. Ms. Santos stated in her complaint: "Coleman violated the [Fair] Labor Standards Act by not paying Ms. Santos for all of the work she performed and by not paying her at least a minimum wage, in violation of the Fair Labor Standards Act of 1938, as amended." Am. Compl. at 10-11, ECF No. 9. Coleman asserts that the statement in the complaint only sufficiently states a claim for a minimum wage violation under the FLSA. Defs.' Reply at 5-7.

         "The FLSA distinguishes between violations of the federal minimum wage (at § 206) and overtime requirements (at § 207)" Acosta v. Campos, No. EP-14-CV-160-PRM, 2014 WL 10178598, at *7 (W.D. Tex. Dec. 17, 2014). A plaintiff must plead the elements of an overtime claim in order to be entitled to relief under the FLSA. Hernandez v. Praxair Distribution, Inc., No. 4:14-CV-01535, 2015 WL 5608233, at *2 (S.D. Tex. Sept. 23, 2015) ("In order to state a claim for unpaid overtime wages, Hernandez must plead (1) he was a nonexempt employee of Defendants; (2) he worked in excess of forty hours per week; and (3) he did not receive minimum wage or overtime compensation."); Solis v. Time Warner Cable San Antonio, LP., No. 10-CA-0231-XR, 2010 WL 2756800, at *2 (W.D. Tex. July 13, 2010) (explaining that the plaintiff sufficiently alleged the elements of an overtime compensation claim under the FLSA); Hoffman v. Cemex, Inc., No. CIV.A. H-09-3144, 2009 WL 4825224, at *3 (S.D. Tex. Dec. 8, 2009) (explaining the same). See also Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014) (listing the elements that an employee must prove for an unpaid overtime compensation claim). Further, the FLSA also distinguishes between travel time and minimum wage violations. Flores v. Act Event Servs., Inc., 55 F.Supp.3d 928, 936 (N.D. Tex. 2014) (distinguishing between and discussing "three specific employee rights" under the FLSA: the right to be paid 1) the minimum wage, 2) for travel time, and 3) for overtime). Thus, a plaintiff must plead "sufficient factual allegations to state a claim for failure to pay travel time[.]" See Id. at 938.

         Ms. Santos failed to plead any of the elements to an overtime or travel time claim in her complaint; indeed, her complaint contains no explicit mentions of overtime or travel time compensation to put Coleman on notice that she was alleging those claims. Accordingly, the Court finds that Ms. Santos is not entitled to relief on the overtime and travel time claims she now asserts. See Cutrera v. Bd. of Sup'rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) ("A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.").

         2. Ms. Santos' Minimum Wage Claim

         Ms. Santos alleges that Coleman violated the FLSA by not always paying her at least the minimum wage during her employment with the company. Pl's Resp. at 16-19. Coleman disputes Ms. Santos' contention that it failed to pay her the minimum wage at any point during the course of her employment. Defs.' Mot. Summ. J. at 17-18. "The FLSA sets the general national minimum wage at $7.25 per hour." Montano v. Montrose Rest. Assocs., Inc., 800 F.3d 186, 188 (5th Cir. 2015). "Section 17 of the FLSA grants federal district courts jurisdiction to restrain violations of the FLSA, including the [restraint] of any withholding of payment of minimum wages [ ] found to be due to employees." Donovan v. Varkonyi, 703 F.2d 555 (5th Cir. 1983) (internal quotation marks omitted) (quoting 29 U.S.C. § 217).

         Coleman has submitted evidence of its payroll records that show Ms. Santos' weekly pay from June 24, 2014, through December 23, 2014. Defs.' Mot. Summ. J., Ex. C-6. Coleman's payroll records show that Ms. Santos was paid an average of $11.71 per hour over that period. See Id. The lowest amount the records show that Ms. Santos was paid per hour over a week during her employment was the national minimum wage of $7.25.[30] Id. However, Ms. Santos has offered evidence indicating that she was not paid the minimum wage during at least one week of her employment with Coleman. Pl's Resp., Ex. A at 37, 39-40 (showing that Ms. Santos worked in excess of 40 hours in a week where she was only paid $5.39). Further, Ms. Santos declares under oath that Coleman did not pay her the minimum wage during certain weeks while she was employed there. Pl's Resp., Ex. A, Santos Decl. ¶¶ 35, 45, 47-48. Thus, the Court, drawing all reasonable inferences in favor of Ms. Santos, finds that there is a genuine dispute of material fact as to whether Ms. Santos was paid the minimum wage at all times during her employment with Coleman. Accordingly, the Court DENIES summary judgment on Ms. Santos' FLSA minimum wage violation claim.

         B. Ms. Santos' Other Claims

         Ms. Santos alleges that Coleman violated Title VII and the TCHRA by retaliating against her for engaging in a protected activity and by discriminating against her on the basis of her national origin and color.[31] Further, Ms. Santos asserts that Coleman violated the FLSA by retaliating against her for engaging in protected conduct.

         As an initial matter, Ms. Santos' Title VII and TCHRA claims are both analyzed under Title VII precedent. See Khalfani v. Balfour Beatty Cmtys., LLC, Civ. A. No. EP-12-CV-00422-DCG, 2014 WL 12530941, at *3 (W.D. Tex. Feb. 12, 2014) (collecting cases holding same). Further, the tripartite burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) applies to each of the causes of action because Ms. Santos does not have direct evidence of discrimination. Pl's Resp. at 3-4; see also Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 624 (5th Cir. 2008) ("Although McDonnell Douglas was a Title VII case, the burden-shifting framework established therein has been adapted and applied to cases under . . . the FLSA."). Accordingly, after laying out the McDonnell Douglas burden-shifting framework, the Court will address each cause of action in succession.

         1. The McDonnell Douglas Burden-Shifting Framework

         When circumstantial evidence is used to prove discrimination, courts apply the McDonnell Douglas burden-shifting framework. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002) ("If the plaintiff produces only circumstantial evidence of discrimination, the burden-shifting analysis set forth in McDonnell Douglas ... guides our inquiry."). Under this framework:

First, the plaintiff must establish a prima facie case of discrimination [or retaliation]. Second, the employer must respond with a legitimate, nondiscriminatory [or nonretaliatory] reason for its decision. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Third, if the employer carries its burden, the mandatory inference of discrimination [or retaliation] created by the plaintiffs prima facie case drops out of the picture and the fact finder must decide the ultimate question: whether the plaintiff has proven intentional discrimination [or retaliation.]

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (internal citations and quotation marks omitted). The elements of the prima facie case depend on the claim asserted. See McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (per curiam) (listing the elements for a prima facie case of retaliation); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (listing the elements of a prima facie case of discrimination). If the defendant meets its burden of production after the plaintiff establishes a prima facie case, then the plaintiff must "offer sufficient evidence to create a genuine issue of material fact that [ ] the employer's reason is a pretext[.]" Daniel v. Universal ENSCO, Inc., 507 Fed.Appx. 434, 437-38 (5th Cir. 2013) (per curiam) (quoting Burrell v. Dr. Pepper/Seven Up Bottling Grp, Inc., 482 F.3d 408, 411-12 (5th Cir. 2007) (internal quotation marks omitted)). See also Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (In the discrimination context, "[t]he plaintiff... must [ ] 'produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination [to avoid summary judgment].'"); Feist v. Louisiana, Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (In the retaliation context, "the plaintiff must show 'a conflict in substantial evidence' on the question of whether the employer would [] have taken the action 'but for' the protected activity [to avoid summary judgment].").

         2. Ms. Santos' National Origin and Color Discrimination Claims

         Ms. Santos alleges that Coleman discriminated against her on the basis of her national origin and color in violation of Title VII and the TCHRA. Coleman disputes these allegations. Further, it argues that some of Ms. Santos' claims are time-barred, and Ms. Santos has failed to exhaust her administrative remedies with regard to certain allegations she made. As threshold matters, the Court will address Coleman's statute of limitations and exhaustion arguments. Thereafter, the Court will turn to Ms. Santos' national origin and color discrimination claims.

         (a) The 300-Dav Statute of Limitations Bars Some of Ms. Santos' Claims

         Coleman urges the Court to grant summary judgment for claims that took place prior to April 8, 2014, as barred by the 300-day statute of limitations. Defs.' Mot. Summ. J. at 5-6. Coleman maintains that, although Ms. Santos testified about the denial of promotions to a secretary position and a sales position during her first term of employment with Coleman, id at 6 (citing Defs.' Mot. Summ. J., Ex. B at 12-15), two years elapsed before Ms. Santos filed her EEOC Charge, id Therefore, Coleman argues that any claims based on these denied promotions are not actionable as a matter of law. Ms. Santos does not oppose Coleman's Motion on this ground. See generally Pl's Resp. at 1-20.

         The Supreme Court has held that discrete discriminatory acts are time-barred if the plaintiff does not file an EEOC charge within 300 days of their occurrence. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ("Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the ... 300-day time period after the discrete discriminatory act occurred.")- The Supreme Court defined "easy to identify" discrete discriminatory acts as "termination, failure to promote, denial of transfer, or refusal to hire[.]" Id. at 114. Here, Ms. Santos filed her EEOC Charge on February 2, 2015. See Original EEOC Charge. The promotions to the secretary and the sales positions, which she claims were denied to her, occurred during her first term of employment with Coleman, which ended in 2012. Defs.' Resp. Pl's Proposed Undisputed Facts ¶ 8. As failure to promote claims, both qualify as discrete discriminatory acts. Therefore, the Court finds that Ms. Santos' failure to promote claims from her first term of employment with Coleman fall outside the 300-day statute of limitations and are time-barred. Further, the Court finds that Coleman's Motion should also be granted because Ms. Santos fails to respond to this issue; thus, the Court deems it unopposed. See Johnson v. Miss. Power Co., Civ. A. No. 1:14-CV-226-KS-MTP, 2014 WL 5847521, at *2 (S.D.Miss. Nov. 12, 2014) (granting summary judgment on disparate treatment claim that was not exhausted and finding that the plaintiff abandoned his claim by failing to brief it); Local Court Rule CV-7(e)(2) (stating that if no response is filed within the prescribed time period, the court may grant the motion as unopposed). Thus, Ms. Santos' failure to promote claims that predate April 8, 2014, are barred by the 300-day statute of limitations. Accordingly, the Court GRANTS summary judgment in favor of Coleman as to any claims based upon Ms. Santos' denial of promotions to a secretary position and a sales position during her first period of employment with Coleman.

         (b) Ms. Santos Exhausted Her Administrative Remedies

         Coleman further asserts that Ms. Santos failed to exhaust her administrative remedies with respect to alleged discriminatory statements made by Coleman about Ms. Santos' national origin. Defs.' Mot. Summ. J. at 9-11; see also Defs.' Mot. Summ. J., Ex. B at 11-12, 16, 92-93, [32] Coleman contends that Ms. Santos only presented factual allegations relating to discrimination and retaliation based on her compensation, job assignments, denial of promotions, and separation for complaining about discriminatory practices affecting her pay and never presented these discriminatory statements to the EEOC. Id. at 9-10 (citing Original EEOC Charge; Defs.' ...

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