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Novak v. Chicago Title of Texas, LLC

United States District Court, W.D. Texas, San Antonio Division

December 18, 2017

VICKI-LOU GRACE NOVAK, Plaintiff,
v.
CHICAGO TITLE OF TEXAS, LLC, Defendant,

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

         On this date, the Court considered Defendant's Motion for Summary Judgment (Docket no. 34) and the corresponding response, reply, and supplements. After careful consideration, the Court GRANTS Defendant's Motion.

         BACKGROUND

         On September 21, 2016, Plaintiff filed her Original Complaint with this Court. Docket no. 1. Plaintiff brings a claim for age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, 623, 626 (“ADEA”). Id.

         Plaintiff, who was sixty-seven years old when she filed her complaint, was employed by Defendant Chicago Title of Texas, LLC for seventeen years. Docket no. 1 at 2. Before she was terminated by Defendant, Plaintiff held the position of escrow officer. Id. Plaintiff began her position when she was forty-six years old. Docket no. 34 at 2. Plaintiff's responsibilities “centered on closing real-estate transactions, including preparing federal forms to be approved by lenders prior to closing.” Id. County Manager Todd Rasco was Plaintiff's supervisor from January 2012 to the time she was terminated. Id.

         In Plaintiff's deposition, she answered that she had a good working relationship with Rasco and never made any complaints about Rasco while she was employed by Defendant. Docket no. 34-2 at 14-15. Plaintiff answered that Rasco never made age-related comments to her, and she did not file any age-discrimination complaints while employed by Defendant. Id. at 15, 37. Plaintiff answered that, prior to her termination, she did not think she had been treated differently from any other escrow officer due to her age. Id. at 16.

         Also in her deposition, Plaintiff answered that, as an escrow officer, she was required to follow federal and state laws concerning real estate closings, including those promulgated by the United States Department of Housing and Urban Development (“HUD”). Id. at 9. Plaintiff had to prepare HUD settlement statements, and Plaintiff answered that it would be a violation of HUD rules or regulations for Plaintiff “to close a real estate transaction without first having the lender's approval of the HUD settlement statement.” Id. at 10. Plaintiff received training on HUD settlement statements while she worked for Defendant, including about how to complete them and the requirements. Id. at 11. When asked if she knew that “following the rules with respect to HUD settlement statements was something that the company took very seriously, ” Plaintiff said yes. Id. at 12. When asked if she understood that her job “would be in jeopardy if [she] did not follow the rules and regulations and policies regarding completion of HUD settlement statements, ” Plaintiff said yes. Id. at 12-13. Plaintiff further responded that she was subject to the policies in Defendant's Code of Business Conduct and Ethics (“Code of Conduct”). Id. at 21.

         Plaintiff alleges that during her employment, she performed the essential functions of her job and faithfully discharged her duties. Docket no. 1 at 2. Plaintiff alleges she was wrongfully terminated on May 6, 2013, due to her age and that Defendant discriminated against her “by imposing unfair and discriminatory standards.” Id. Plaintiff was sixty-three years old when she was terminated. Docket no. 34 at 1. Plaintiff states that prior to her termination, she received positive performance evaluations and “had realized regular increases in her salary.” Docket no. 1 at 2. Plaintiff further alleges that Defendant's policies, selection criteria, and actions “have had a disparate and discriminatory impact on Plaintiff due to her age.” Id. at 3. Plaintiff alleges that Defendant's acts constitute a willful and intentional violation of the ADEA. Id.

         Defendant alleges that Plaintiff was terminated because she “engaged in a knowing, intentional, and admitted violation of company policy when she attempted to close a real-estate transaction without getting the lender's approval for the Settlement Statement required by the U.S. Department of Housing and Urban Development.” Docket no. 34 at 1 (emphasis in original).

         In her deposition, Plaintiff stated that she made a clerical correction on a closing statement and did not send the corrected statement to the lender. Docket no. 34-2 at 22. Plaintiff stated that she knew that she needed to send the corrected statement to the lender; however, she did not send it to the lender before the closing. Id. at 22-23. Plaintiff stated that the clerical error was that she “mis-pro-rated some homeowners' dues and [she] caught it and corrected it.” Id. at 23. Plaintiff stated that she corrected the statement after the actual closing. Id. When asked if the lender should have been provided a copy of the settlement statement to approve it before Plaintiff actually went forward with the closing, Plaintiff responded yes. Id. at 25. In this case, however, Plaintiff stated that the closing went forward without the lender approving the statement that she corrected. Id.

         Plaintiff was asked why, when she realized there was an error at the closing, she didn't stop and print a corrected statement for the lender to sign, and Plaintiff responded “I can't answer that.” Id. at 32. Despite her response, Plaintiff stated that this would have been the correct procedure. Id. Plaintiff stated that she knew that she was not following the correct procedure, and based on her thirty-something years of experience as an escrow officer, she knew she was doing something wrong. Id.

         Plaintiff stated that she had a meeting with Rasco and Director of Residential Marketing Bill Lester on May 3, 2013. Id. at 32. The meeting was on the same date that Plaintiff contacted the lender that there was an error on the statement. Id. at 34. At the meeting, Plaintiff admitted to making the mistake on the statement, and Rasco told Plaintiff that he didn't want it to happen again. Id. at 33. Plaintiff also admitted that she did the closing despite having an incorrect statement. Id. Plaintiff stated that Rasco did not discuss her possible consequences at the meeting. Id. at 34.

         On May 6, 2013, Plaintiff attended a meeting with Rasco and Human Resources Administrator Chris Hodges. Id. at 35. Plaintiff was terminated at this meeting. Id. Plaintiff stated that Rasco said “he had had given the situation some thought over the weekend and he thought it best we go our separate ways.” Id. Plaintiff stated that she wasn't sure what the “situation” was to which Rasco was referring. Id. at 35-36. Plaintiff stated that, at this meeting, Rasco said nothing about Plaintiff's age, and there was no discussion about retirement. Id. at 37. Plaintiff stated that Hodges also said nothing age-related at the meeting. Id.

         On November 10, 2017, Defendant filed its Motion for Summary Judgment now pending before the Court. Docket no. 34. The Court now considers Defendant's motion, Plaintiff's response ...


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