United States District Court, W.D. Texas, Austin Division
QUIANNA S. CANADA Plaintiff,
TEXAS MUTUAL INSURANCE COMPANY, Defendant.
SPARKS, UNITED STATES DISTRICT JUDGE.
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]. Having reviewed
the documents, the governing law, and the file as a whole,
the Court enters the following.
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).
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
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.
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.
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.
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.
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.
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.
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.
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.
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].
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].
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.
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.
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
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