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Canada v. Texas Mutual Insurance Co.

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

March 26, 2018




         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiffs Motion to Withdraw Lawsuit Voluntarily [#117], Defendant Texas Mutual Insurance Company (TMIC)'s Response [#118] thereto, and Plaintiff s Motion to Supplement [#119] in support; Plaintiffs Motion to Continue with Lawsuit [#122]; TMIC's Motion for Summary Judgment [#126], Plaintiffs Response [#129] in opposition, and TMIC's Reply [#138] in support; Plaintiffs Motion to Strike [#139]; Plaintiffs Opposed Motion for Sanctions [#147]; the United States Magistrate Judge's Report and Recommendation [#148]; and Plaintiffs Objections and Motion for Continuance [#154].[1] Having reviewed the documents, the governing law, and the file as a whole, the Court enters the following.

         All matters in this case were referred to United States Magistrate Judge Mark Lane for report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 (d) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Plaintiff is entitled to de novo review of the portions of Magistrate Judge Lane's report to which she filed specific objections. 28 U.S.C. § 636(b)(1). All other review is for plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). A party's failure to timely file written objection to the proposed findings, conclusions, and recommendation in a Report and Recommendation bars that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Services Auto. Ass 'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

         In this case, Plaintiff filed objections to the Magistrate Judge's Report and Recommendation, In light of Plaintiff s objections, the Court reviews the entire case de novo.


         I. Factual Context

         This case predominately concerns allegations of racial discrimination and retaliation. Plaintiff, a black woman, is a former temporary employee who was assigned to perform work at TMIC by Evins Personnel Consultants (Evins). Among other services, Evins assists organizations with temporary staffing. Plaintiff was assigned to work for TMIC as a policy support clerk for twenty-eight days, June 28, 2016 to August 8, 2016. Mot. Summ. J. [#126-2] Ex. A (Canada Dep.) at 119:4-23. The policy support clerk position required Plaintiff to report to work at 8:00 a.m. and finish at 5:00 p.m. Id. To enter TMIC s building, Plaintiff needed to swipe her electronic badge. Id. at 143:17-20. During the temporary assignment, Marsha Thibodaux, the policy support supervisor, supervised Plaintiff. See Seventh Am. Compl. [#42] ¶¶ 18-21, 33, 45. Kirsten Kirpatrick, a senior administrative assistant in Human Resources (HR), was responsible for communicating with Evins regarding temporary staffing assignments. Resp. Mot. Summ. J. [#129] ¶9.

         While providing temporary services to TMIC, Plaintiff applied for three permanent positions at TMIC but was not hired. Resp. Mot. Summ. J. [#129] ¶ 6. On July 21, 2016, Plaintiff learned one of the positions for which she applied had been filled. Seventh Am. Compl. [#42] ¶¶ 31-33. That same day, Plaintiff filed a complaint against TMIC with the City of Austin's Equal Employment and Fair Housing Office. Id. ¶ 35.

         One of the permanent positions for which Plaintiff applied was the policy support clerk position, the position she had been temporarily filling. Resp. Mot. Summ. J. [#129] ¶ 6 n.4. The policy support clerk position was filled by Ryan Johnson, a white male. Id. ¶ 7. Plaintiff met Mr. Johnson when he reported for work on August 8, 2016. Id. ¶ 7.

         During her lunch break on August 8th, Plaintiff asked to speak to a Human Resources (HR) employee. Id. ¶ 50. Edward Coates, a HR staff member, invited Plaintiff into the HR conference room and listened to Plaintiffs concerns. Id. Plaintiff informed Mr. Coates she had been rejected from three positions at TMIC and asked to speak to the individual who reviewed her three applications. Id. Mr. Coates expressed anger and irritation with Plaintiff and refused to set up a meeting between Plaintiff and the person who had reviewed Plaintiffs applications. Id. ¶ 51.

         That same day, sometime before 3:44 p.m., Ms. Thibodaux contacted Ms. Kirpatrick and requested Plaintiffs assignment to TMIC through Evins be ended because the policy support clerk position had been filled. Mot. Summ. J. [#126-5] Ex. D (Kirpatrick Decl.) ¶ 7. Ms. Kirpatrick then called a point of contact at Evins to end Plaintiffs assignment. Id. ¶ 8. At 3:44 p.m., Ms. Kirpatrick sent an email to Evins confirming TMIC filled the policy support clerk position and requesting Plaintiffs assignment with TMIC be ended at the close of business on August 8th. Id. ¶ 8.

         Shortly before 4:00 p.m., Plaintiff received an email from a person at the Equal Employment and Fair Housing Office asking Plaintiff to contact him to discuss her July 21 st complaint. Seventh Am. Compl. [#42] ¶ 54. At 3:59 p.m., Plaintiff stepped out of TMIC's building to call the Equal Employment and Fair Housing Office staff member. Id. ¶ 55. Plaintiff returned inside the TMIC building at 4:24 p.m. Mot. Summ. J. [#126-3] Ex. B (Badge Reports) at 27; Kirpatrick Decl. ¶ 12. After she returned from the call, Plaintiff alleges she told Ms. Thibodaux she was concerned she was being discriminated against in the hiring process and she had made a complaint to the Equal Employment and Fair Housing Office. Seventh Am. Compl. [#42] ¶ 55.

         II. Procedural History

         Proceeding pro se, Plaintiff filed this suit on January 24, 2017, in Texas state court, and TMIC subsequently removed the case to this Court. Removal Notice [#1].While Plaintiff initially sued TMIC and a series of individual defendants-including Ms. Kirpartrick, Ms. Thibodaux, and Mr. Johnson-the Court previously dismissed Plaintiffs claims against the individual defendants for failure to state a claim. Order of Oct. 4, 2017 [#116]. The Court expressly noted TMIC was the only remaining defendant. Id.

         In her seventh amended complaint, Plaintiff alleges TMIC is liable for race discrimination, in the form of failure to hire, and retaliation under Title VII of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act (TCHRA). Seventh Am. Compl. [#42] at 18-28. Plaintiff also brings claims against TMIC for negligent hiring and training as well as tortious interference with a business relationship. Id. at 28-34. Plaintiff further contends she brings some of her claims under 42 U.S.C. § 1981 for civil conspiracy. Id. at 35.

         When Plaintiff requested leave to amend her complaint for an eighth time, this Court denied Plaintiffs request, finding Plaintiff had already amended her complaint seven times during the four-month span of the lawsuit and Plaintiff merely sought to eliminate her federal claims and circumvent the Court's jurisdiction. Order of June 12, 2017 [#69].

         In October 2017, Plaintiff filed a motion to withdraw this lawsuit and approximately a week later filed a motion to continue with this lawsuit against TMIC. Mot. Withdraw [#117]; Mot. Continue [#122]. This Court then referred the case to Magistrate Judge Lane. Order of Oct. 18, 2017 #125].

         TMIC subsequently moved for summary judgment arguing it is entitled to judgment as a matter of law because Plaintiff fails to establish a genuine issue of material fact on any of her claims. See Mot. Summ. J. [#126]. Specifically, TMIC argues (1) Plaintiff cannot establish a prima facie failure-to-hire claim because she cannot show she was qualified for the positions to which she applied; (2) Plaintiffs retaliation claims fail because Plaintiff provides no evidence a causal link existed between a protected activity and an adverse employment action; and (3) Plaintiffs common law claims fail because TCHRA is the exclusive remedy for workplace discrimination under Texas law. Id.

         Following Plaintiffs response to the motion for summary judgment, Magistrate Judge Lane set a hearing to review all the pending motions. Order of Nov. 6, 2017 [#134]. Plaintiff then moved for permission to appear at the hearing via telephone or video conference as she was interning out of the United States and unable to appear in person. Mot. Appear Telephonically [#13 5]. In response, Magistrate Judge Lane ordered Plaintiff to provide documentation of her out-of-country internship and cancelled the hearing. Order of Nov. 7, 2017 [#136]. Plaintiff provided the Court with a copy of an email showing Plaintiff had scheduled a one-way flight from Austin, Texas to Toronto, Canada on September 6, 2017. Travel Itinerary Notice [#139-1] Ex. 1 (Confirmation Email). Plaintiff did not provide the Court with any documentation showing she was participating in an out-of-country internship. See id.

         Plaintiff then filed a motion titled "Unopposed Motion for Reconsideration to Appear Telephonically or Via Video Conference." See Mot. Recons. [# 140]. After this motion was docketed, Defendant's counsel emailed Magistrate Judge Lane's chambers stating Plaintiff had not contacted Defendant's counsel before filing the motion for reconsideration. Order of Dec. 6, 2017 [#142] at 1. Copied on the email, Plaintiff responded, "I never stated in my motion that I contacted the defendant to discuss the agreement or opposition to the motion." Id. Magistrate Judge Lane denied Plaintiffs motion for reconsideration, finding Plaintiff failed to meaningfully confer with Defendant's counsel and misrepresented her motion for reconsideration as unopposed. Id. at 2.[2]

         Magistrate Judge Lane subsequently determined a hearing on the pending motions was unnecessary and found TMIC's motion for summary judgment meritorious. R. & R. [#148] at 2. In particular, Magistrate Judge Lane concluded Plaintiff was unable to establish a. prima facie case TMIC engaged in racial discrimination by failing to hire her. Id. at 7-10. Magistrate Judge Lane also concluded Plaintiffs retaliation claims fail because Plaintiff did not provide any evidence her termination was causally connected to any protected activity. Id. at 10-11. Furthermore, Magistrate Judge Lane found that Plaintiffs common law negligent training claim was preempted by her TCHRA claim and that Plaintiff had agreed to dismiss her tortious ...

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