United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically, Defendant Townsquare
Media Broadcasting (Townsquare)'s Motion for Summary
Judgment [#39], Plaintiff Charles Rivera's Response [#40]
in opposition, and Townsquare's Reply [#41] in support.
Having reviewed the documents, the relevant law, the
arguments of counsel, and the case file as a whole, the Court
now enters the following opinion and order.
an employment discrimination and retaliation case. In the
fall of 2013, Rivera was hired by Townsquare as a radio
announcer for KOOC, a hip-hop radio station located in
Temple, Texas. Mot. Summ. J. [#39-1] App. at 3; Resp. Mot.
Summ. J. [#40-1] Ex. A at 2. As a radio announcer,
Rivera's primary on-the-job duty was to act as an
announcer and "DJ" for KOOC. Resp. Mot. Summ. J.
[#40-1] Ex. B (Rivera Decl.) at 2-4. In addition to these
primary duties, Townsquare also required Rivera to author
twelve short blog posts each week regarding current events
and local news. Id. at 4. According to Rivera, a
comparatively large proportion of KOOC's audience is
black, and in his capacity as a hip-hop radio announcer,
Rivera frequently brought black music artists into the studio
to have them on air. Id. at 2-3; id.
[#40-3] Ex. C (Wiederhold Dep.) at 12-13.
local manager at the station was Laura Wiederhold. Wiederhold
Dep. at 5-7. Though the first year of Rivera's employment
apparently passed without incident, Rivera alleges that
Wiederhold frequently complained to Rivera about his
interactions with black men at the radio station. Rivera
Decl. at 2-4. At one point in 2015, Wiederhold called
the police when she saw black men congregating outside of the
radio station after dark. Id. Wiederhold explained
in her deposition that she called the police because the
black men were assembled at the radio station's front
entrance and she was unaware anyone was expecting visitors.
Reply Mot. Summ. J. [#41-1] App. at 1-19. In actuality, the
men had come to the station to meet with Rivera and were
standing outside with him when Wiederhold called the police.
Resp. Mot. Summ. J. [#40-1] Ex. I at 7.
alleges Wiederhold's racial animus extended beyond casual
remarks to impact operational aspects of his work for KOOC.
For example, Rivera alleges the other Townsquare radio
stations were given more opportunities and better equipment
with which to work because their audiences consisted of
non-black listeners. Rivera Decl. at 3. At his deposition,
Rivera also alleged Wiederhold interfered with his ability to
enter contractual arrangements with black music artists by
attempting to make Rivera charge KOOC's predominately
black artists for playing their music or for interviews,
despite the fact that this was not typically done for artists
on other stations. Rivera Dep. at 7.
Rivera complained to his operations manager, Vince Richards,
about the unequal treatment he was receiving as the radio
announcer at KOOC. Rivera Decl. at 3-4. Specifically, Rivera
told Richards that Wiederhold, the local manager, was
discriminating against Rivera because he was the announcer
for the hip-hop station and because Wiederhold was afraid of
black men. Id. Rivera alleges Richards was
insensitive to these complaints and told Rivera to stop
complaining. Id. Additionally, Richards allegedly
told Rivera to be "careful" about having black men
come to the station. Id.
prior to or simultaneous with Rivera's complaints of
discrimination,  Tan Curtis, a digital managing editor for
Townsquare, "began a campaign of concentrating on
Rivera's blog posts" to detect potential plagiarism.
Resp. Mot. Summ. J. [#40-1] Ex. A at 4. This alleged
investigation revealed several instances of alleged
plagiarism or shoddy attribution. Townsquare's motion for
summary judgment identifies three instances in which Rivera
allegedly plagiarized content produced by third parties. In
the first instance, Rivera wrote a post which "featured
a quote originally published by the New York Times."
Mot. Summ. J. [#39] at 13. In the second instance, Rivera
"borrowed multiple quotes" originally published in
an All HipHop.com article. Id. In the third
instance, Rivera's post contained two sentences that
"were nearly identical" to sentences in a TMZ
January 27, 2015, Tan Curtis and Vince Richards met with
Rivera regarding Townsquare's plagiarism and attribution
policies. Mot. Summ. J. [#39-2] Appendix at 230. Curtis
explained Rivera should include attribution and hyperlinks in
his blog posts when he gathered information from outside
sources and also informed Rivera he should add a local or
personal spin when adapting posts written by Townsquare's
national team. Id.After the meeting, Curtis sent out
an email which states "[o]ur concerns discussed, we look
forward to a productive and creative 2015." Id.
The email does not suggest Townsquare was considering
terminating Rivera for his past conduct. Id.
8, 2015, Curtis emailed Wiederhold and Stephanie McMaster, a
regional digital manager and reported Rivera was
"Plagiarizing Again (Sort of)" but that
Rivera's transgressions were "not exactly
plagiarism." Mot. Summ. J. [#39-3] Appendix at 19.
Curtis explained that Rivera's posts did not actually
constitute plagiarism but probably violated Townsquare's
"proper attribution protocols." Id. at 27.
Curtis believed the posts showed Rivera was intent on
"trying to find . . . ways around putting in the effort
required to complete his regular posting duties."
Id. at 19. Wiederhold forwarded this email to
Richards. Resp. Mot. Dismiss [#40-4] Ex. D at 20.
follow-up email on May 27, 2015, Curtis emailed Richards and
McMaster ten collected examples of alleged plagiarism and
shoddy attribution. Mot. Summ. J. [#39-3] Appendix at 19. Of
these ten examples-drawn from over 600 blog posts authored by
Rivera- only four were posted subsequent to the January 27
meeting. Id. Curtis's email acknowledges these
four instances of alleged plagiarism were "more
subtle" than on previous occasions, a development he
attributes to "evolution" in Rivera's
plagiarism technique. Id. Curtis further explained
that if he could google a phrase from one of Rivera's
articles and find another article using the same phrase,
"that's plagiarism, plain and simple."
28, 2015, Richards sent an email to Kurt Johnson, a senior
vice-president for programming at Townsquare, stating they
had "discover [sic] a case of plagiarism in the
Killeen/Temple market." Resp. Mot. Summ. J. [#40-4] Ex.
D at 40-41. Richards did not share Curtis's equivocations
regarding whether or not Rivera's posts constituted
plagiarism, instead informing Johnson that Curtis, Richards,
and McMaster had concluded Rivera was actively engaged in
same day, Johnson also received an email from Rivera himself,
in which Rivera complained of discrimination at the radio
station, including the directive that KOOC music artists pay
for interviews. Id. at 39. Rivera believed this
constituted discrimination because other stations were not
required to charge their music artists for interviews. Rivera
Decl. at 2-4. In spite of the concerns raised by Rivera in
his email, Johnson left the role of reviewing Rivera's
posts to Richards and two other managers. Id.
[#40-5] Ex. E at 30-31.
a review by Richards and others, Rivera was informed on June
23, 2015 that he was being terminated for violating
Townsquare's plagiarism policy. Mot. Summ. J. [#39-2]
Appendix at 162. Townsquare then hired an African-American
man, Shannon Brazier, to replace Rivera. Id. at
response to his termination, Rivera filed a complaint against
Townsquare with the Texas Workforce Commission. Am. Compl.
[#9] at 5. Rivera subsequently filed this suit in federal
court alleging Townsquare's actions violated 42 U.S.C.
§§ 2OOOe-2(a), 2OOOe-2(a), and 1981. Id.
at 1. Townsquare now files a motion for summary judgment.
Mot. Summ. J. [#39]. The motion is ripe for 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 a matter of
law. Fed.R.Civ.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.,
411 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, 411 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 Indem. Co. of Conn., 465 F.3d 156,
164 (5th Cir. 2006). Rule 56 does not impose a duty on the
court to "sift through the record in search of
evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S.at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. 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.
brings a racial discrimination claim under 42 U.S.C. §
2OOOe-2(a) and retaliation claims under §§
2OOOe-3(a) and 1981. Discrimination and retaliation claims
based on circumstantial evidence are reviewed under the
McDonnell Douglas burden-shifting framework. See
Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.
2004) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)) (outlining element of prima facie case of
discrimination); see also Wheat v. Fla. Par. Juvenile
Justice Comm'n, 811 F.3d 702, 705 (5th Cir. 2016)
(outlining elements of prima facie case of retaliation).
McDonnell Douglas, the plaintiff must first
establish a prima facie case by producing evidence in support
of each element of the claim. McKinsey, 375 F.3d at
360 (noting burden is one of production, not persuasion). If
the plaintiff establishes a prima facie case, the burden
shifts to the employer to articulate some legitimate reason
for the employer's action. Id. Once the employer
articulates a legitimate reason for the action, the burden
then shifts back to the plaintiff to "demonstrate the
employer's proffered explanation is unworthy of
credence." Id. The plaintiff can meet this
burden by either providing evidence of intentional
discrimination or retaliation or by providing evidence
establishing the falsity of the employer's explanation.