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Reed v. Centerpoint Energy, Inc.

United States District Court, S.D. Texas, Houston Division

May 10, 2018

CINDY D. REED, Plaintiff,
v.
CENTERPOINT ENERGY, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE, UNITED STATES DISTRICT JUDGE

         Plaintiff, Cindy D. Reed, brings this action against defendant, CenterPoint Energy, Inc., asserting claims for employment discrimination based on race (African-American) in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-2, et seq., and age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), and comparable claims for violation of the Texas Labor Code.[1] Pending before the court is Defendant CenterPoint Energy, Inc.'s Motion for Summary Judgment ("Defendant's MSJ") (Docket Entry No. 21), and Plaintiff's Opposed Motion for Referral to Mediation (Docket Entry No. 25). For the reasons set forth below, Defendant's Motion for Summary Judgment will be granted, plaintiff's Motion for Referral to Mediation will be denied, and this action will be dismissed with prejudice.

         I. Undisputed Facts

         Defendant hired plaintiff as a customer service representative in November of 2003.[2] When plaintiff was hired she signed a personal commitment to provide "World Class Customer Service" and to "[i]nteract with team members and supervision in a manner that shows concern and respect for others, "[3] and plaintiff received a copy of defendant's Ethics Compliance Code, which included an obligation to show respect for others in the workplace and to adhere to defendant's policy against discrimination and harassment.[4] In 2006 defendant promoted plaintiff to a Customer Service Lead position.[5] Plaintiff did not seek a promotion in the five years preceding the filing of this action.[6]

         On January 5, 2016, plaintiff received a Final Warning from her second-line supervisor, Shonda Johnson, stating:

Your management team spoke with you many times during 2015 to reiterate your need to improve how you communicate and interact with team members as a Team Lead. Despite our discussions, your actions continue to be inconsistent with Company expectations and violate the following policies (attached):
• Performance Expectations Policy and Standards of Conduct/Business Ethics - following basic standards of courtesy and good behavior; respecting the rights of others.
• Protection of Confidential Information - sharing medical information about an employee.

         You must do the following to continue employment with CenterPoint:

• Treat all employees with respect and courtesy;
• Communicate respectfully and constructively with employees;
• Honor employee confidentiality and do not discuss performance issues of your peers and employees with persons uninvolved in the issue; and
• Recognize the limits of your authority and do not exceed it; escalate issues beyond your authority to your leadership team.

         Failure to improve will result in termination of your employment. Your signature acknowledges this discipline and the fact that your Management's expectations have been discussed with you.[7]

         The Final Warning resulted from a complaint by an employee who alleged that plaintiff had discussed his medical leave with other employees.[8]

         On June 3, 2016, plaintiff filed a Charge of Discrimination with the Equal Opportunity Employment Commission in which she claimed that defendant "commenced and carried out a course of conduct which discriminated against [her] on account of [her] age, over 40, and [her] race, African American, "[9] and

a. [I] ntentionally subjected me to abusive working conditions which were calculated to have the effect and which did have the effect of inflicting emotional distress upon me.
b. [P]laced arbitrary and capricious goals or quotas for me to attain with the intent to force me from my job for pretextual reasons.
c. [I]ntentionally subjected me to abusive working conditions by requiring me to perform my required work duties under circumstances and under a supervisor or supervisors who uttered maliciou[s] and belittling statements to me on account of my age and my race.
d. [F]ailed to promote me although I was qualified for the position(s) which I sought. My employer has denied me promotions and advancements afforded other persons outside my protected categories.
e. All the above actions by my employer amounted to discrimination against me or harassment of me [on] account of my race and my age all in violation of Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act and Tex. Labor Code Ann. Sec. 21.0 01 et seq.[10]

         On August 4, 2016, plaintiff filed this action in the 129th Judicial District Court of Harris County, Texas, alleging that defendant discriminated against her on the basis of race and age by subjecting her to a hostile work environment.[11] On September 2, 2016, defendant removed plaintiff's action to this court.[12]

         Despite having received a Final Warning in 2016, plaintiff received an Effective rating on her 2016 performance review, and received a pay raise in 2017.[13] Nevertheless, on July 10, 2017, Defendant terminated plaintiff's employment for "Policy Violations, " stating:

The company recently investigated and corroborated complaints that you favored certain team members, disclosed confidential information about at least one team member, and, most concerning, openly accused and shunned members of your team who you believe made complaints about you on the Company's Helpline. We consider your actions to be an attempt to quash criticism and retaliate against those who have a legitimate right to utilize the Company's Helpline to report good faith complaints. This behavior is strictly prohibited by the Company and grounds for termination.
Accordingly, your employment with the Company is terminated effective July 10, 2017.[14]

         On August 8, 2017, plaintiff filed Plaintiff's First Amended Complaint (Docket Entry No. 11), which added an allegation that defendant had terminated her employment in violation of Title VII.[15]

         On April 5, 2018, defendant moved for summary judgment on all of plaintiff's claims.[16]

         II. Plaintiff's Motion for Referral to Mediation

         On May 1, 2018, plaintiff filed her Opposed Motion for Referral to Mediation (Docket Entry No. 25) . Plaintiff states that the parties have discussed mediation and possible mediators but have been unable to agree upon a mediator, and asks the court to designate a mediator and order the case to mediation.

         The initial Docket Control Order entered in this action on November 18, 2016 (Docket Entry No. 8), required mediation or a settlement conference before the magistrate judge and set the date for filing dispositive motions as 30 days after the mediator or the magistrate judge declares an impasse.[17] On August 23, 2017, the court entered an Order Granting Agreed Motion for Continuance (Docket Entry No. 14) and an Amended Scheduling Order (Docket Entry No. 15), which similarly required mediation or a settlement conference before the magistrate judge, and set the date for filing dispositive motions as 3 0 days after the mediator or the magistrate judge declares an impasse.[18] On November 14, 2017, however, defendant filed an Unopposed Motion for Continuance of Remaining Scheduling Order Deadlin[e]s (Docket Entry No. 17), seeking to extend the dates for completion of discovery, filing of all other pretrial motions, the joint pretrial order, and docket call. The defendant's unopposed motion did not mention mediation and/or a date for filing dispositive motions that differed from the date for filing all other pretrial motions. The court granted the defendant's motion the same day (Docket Entry No. 18), ordering that the Court's Scheduling Order is hereby amended as follows:

Completion of Discovery by April 26, 2018
All other pretrial motions will be filed and served by April 5, 2018
Joint Pretrial Order will be filed by May 3, 2018
Docket Call set for 3:00 PM May 11, 2018.

         In accordance with the November 14, 2017, amended scheduling Order, defendant filed the pending motion for summary judgment (Docket Entry No. 21) on April 5, 2018, and on April 24, 2018, plaintiff filed her Response to Motion for Summary Judgment (Docket Entry No. 22) . Because plaintiff did not oppose entry of the scheduling order that eliminated the requirement for mediation or a settlement conference before the magistrate judge and set the date for filing of dispositive motions 3 0 days after the mediator or the magistrate judge declared an impasse, because both parties have acted in accordance with the amended scheduling Order, and because this action is ripe for resolution pursuant to the Defendant's Motion for Summary Judgment, the plaintiff's Opposed Motion for Referral to Mediation will be denied.

         III. Defendant's Motion for Summary Judgment

         Plaintiff alleges that defendant discriminated against her on the basis of race and age in violation of Title VII and the ADEA, and comparable provisions of the Texas Labor Code by subjecting her to abusive working conditions, engaging in conduct intended to deprive her of available promotions and job opportunities, and terminating her employment.[19]

         Defendant argues that it is entitled to summary judgment on all of plaintiff's claims because plaintiff is unable to present evidence capable of satisfying the elements of a prima facie case of discrimination under Title VII, the ADEA, or the Texas Labor Code, and because plaintiff is unable to present evidence capable of showing that the legitimate, non-discriminatory reason for which she was terminated, i.e., violation of company policies, was a pretext for discrimination or for intent to interfere with rights guaranteed by Title VII, the ADEA, or the Texas Labor Code.[20]

         Plaintiff's Response addresses her claim that her employment was terminated for discriminatory reasons but does not address her other claims for failure to promote, abusive work environment, or age discrimination.[21] Local Rule 7.4 provides that "[f]ailure to respond will be taken as a representation of no opposition." S.D. Tex. R. 7.4 (2000). The court, therefore, takes plaintiff's failure to respond to Defendant's MSJ on her claims for failure to promote, abusive work environment, and age discrimination as a representation of no opposition to defendant's summary judgment evidence. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (when the nonmovant fails to respond to a motion for summary judgment, the court does not err by granting the motion when the movant's submittals make a prima facie showing of entitlement to judgment as a matter of law).

         A. Standard of Review

         Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed.R.Civ.P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact, ' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 3 7 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553-54 (1986)). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Id. If, however, the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

         B. Applicable Law

         Plaintiff may establish a claim for employment discrimination based on race in violation of Title VII, and/or age in violation of the ADEA, and/or comparable provisions of the Texas Labor Code by using direct evidence or by using the indirect method of proof set forth in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973). See Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir. 2015) (Title VII); Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (ADEA and Texas Labor Code).[22]Direct evidence of discrimination "is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir. 2004). Plaintiff has not cited direct evidence of discrimination and has not argued that this is a direct evidence case. Because plaintiff has attempted to show discrimination through circumstantial evidence, the McDonnell Douglas burden-shifting framework governs her claims.

         Plaintiff's initial burden under the McDonnell Douglas framework is to establish a prima facie case of discrimination based upon her race or her age. Nichols v. Loral Vought Systems Corp., 81 F.3d 38 (5th Cir. 1996). "[T]o establish a prima facie case, a plaintiff need only make a very minimal showing." Id. at 41. "A prima facie case raises an inference of unlawful discrimination." Id. If plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for its actions.

         "The defendant may meet this burden by presenting evidence that 'if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.'" Id. (quoting St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2748 (1993)). If the defendant meets this burden, "the plaintiff is given the opportunity to demonstrate that the defendant's articulated rationale is merely a pretext for discrimination." Id. "If [plaintiff] can raise a genuine issue of material fact as to whether [she] has established pretext, that will suffice to avoid summary judgment." Id. Plaintiff may also survive defendant's motion for summary judgment on her Title VII claims for race discrimination by presenting evidence that the defendant's reason for its adverse action, while true, is only one of the reasons for its conduct, and that another "motivating factor" was the plaintiff's protected characteristic.

         C. Application of the Law to the Undisputed Facts

         1. Plaintiff's Title VII Claims for Race Discrimination Fail

         Title VII protects individuals from discrimination by an employer based on the "individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff alleges that defendant discriminated against her on the basis of race in violation of Title VII and comparable provisions of the Texas Labor Code by subjecting her

a. ... to abusive working conditions by requiring [her] to perform her required work duties under a supervisor who repeatedly subjected her to outrageous and offensive verbal abuse in and around ...

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