United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA, UNITED STATES DISTRICT JUDGE
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.
is an established household goods moving and storage company
and a provider of worldwide relocation and transportation
services. Coleman is headquartered in Dothan,
Alabama, but maintains at least one facility in El Paso,
Texas. 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. 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.
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. 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. 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. 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. Accordingly, Bashur and Regan were
generally responsible for giving Ms. Santos her work
to Heinen, Coleman's policy was to pay its packers and
drivers an hourly rate for the work they did in its
warehouse and a rate according to its "hundred-weight
scale"for the shipping assignments outside the
warehouse. 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. 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.
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. Ms. Santos had requested
that Buntyn allow her to take on those additional
responsibilities prior to them being given to Sylinda
James. Further, Ms. Santos' frustrations
grew during her time with Coleman because she felt that Regan
was purposefully giving her the lower-paying work
assignments. 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. 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. Ms. Santos alleges that Buntyn told
Regan to give her holiday pay for Thanksgiving; Coleman
disputes this allegation.
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. 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. She further asserts that Regan fired her
the next day, December 23, 2014, and made a discriminatory
comment. Coleman alleges that Ms. Santos
voluntarily resigned from her position on December 22, 2014,
and Regan simply accepted her resignation on December 23,
2014. However, it is undisputed that Ms.
Santos' it employment with Coleman ended on December 23,
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. Ms. Santos' EEOC Charge alleges that
she was discriminated against on the basis of her national
origin and color and retaliated against by
Coleman. Subsequently, the EEOC and TWC issued
Ms. Santos notices of her right to sue on her charges of
discrimination and retaliation. 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,
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)).
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).
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).
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.
Ms. Santos' FLSA Wage Violation Claims
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.
Ms. Santos' Overtime and Travel Time Claims
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.
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.
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.").
Ms. Santos' Minimum Wage Claim
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).
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. 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
Ms. Santos' Other Claims
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. Further, Ms. Santos asserts
that Coleman violated the FLSA by retaliating against her for
engaging in protected conduct.
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.
The McDonnell Douglas Burden-Shifting Framework
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
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
Ms. Santos' National Origin and Color Discrimination
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.
The 300-Dav Statute of Limitations Bars Some of Ms.
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.
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
Ms. Santos Exhausted Her Administrative
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,  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.'