United States District Court, S.D. Texas, Houston Division
TOYA M. GIBSON, Plaintiff,
WAYFAIR, INC., Defendant.
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNIT02 STATES DISTRICT JUDGE.
employment discrimination case is before the Court on the
Motion for Summary Judgment (“Defendant's
Motion”) [Doc. # 26] filed by Defendant Wayfair, Inc.
(“Wayfair”), to which Plaintiff, pro se,
Toya M. Gibson filed a Response [Doc. # 32], and Defendant
filed a Reply [Doc. # 36]. Also pending is Plaintiff's
Motion for Summary Judgment (“Plaintiff's
Motion”) [Doc. # 29], to which Defendant filed a
Response [Doc. # 30], and Plaintiff filed a “Requested,
Anticipated and Finally Received Addendum”
(“Addendum”) [Doc. # 40]. Having reviewed the
full record and applicable legal authorities, the Court
grants Defendant's Motion and
denies Plaintiff's Motion.
is a Christian with strong faith. She worked for Wayfair in
the Texas call center for just over six months, beginning
March 28, 2016, and ending when her employment was terminated
by Defendant on October 10, 2016. During that time, Plaintiff
processed a high percentage of returns that involved
exceptions to Wayfair's standard return policy. This
included accepting returns after the expiration of the 30-day
return period, and waiving applicable return shipping costs.
Plaintiff, citing the Bible, Ephesians 4:32, notes in her
Response to Defendant's Motion that Christians are
commanded to be kind and compassionate. Plaintiff states that
she attempted to follow that command by being kind to Wayfair
customers, particularly the elderly customers, by accepting
their merchandise returns.
Brown was Wayfair's Customer Service Manager and
Plaintiff's supervisor. When Plaintiff's minor
daughter was not in school, Plaintiff requested permission to
go home during her lunch break to check on her. In discussing
her request with Brown, Plaintiff mentioned that her mother
could not take care of the daughter because her mother was
“mentally ill.” See Plaintiff's
Deposition, Exh. D to Defendant's Motion, p. 62.
Plaintiff did not provide to Brown or anyone else at Wayfair
additional information regarding her mother's mental
illness. See Id. at 65-66. Plaintiff stated that
Brown allowed her to go home to check on her daughter.
See Id. at 64.
her brief employment with Wayfair, Plaintiff was absent from
work thirty-six (36) times. Wayfair's Attendance Policy
is included in the “Sales & Service
Attendance” section of the “Wayfair Employee
Guide: Texas Call Center Addendum, ” attached as
Exhibit E to Defendant's Motion. Plaintiff admits that
she received a copy and was aware of the Attendance Policy.
See Plaintiff's Depo., pp. 40-41. The Attendance
Policy provides for the assessment of points for various
attendance infractions. An employee is assessed one
Attendance Point for every “unplanned absence.”
See Attendance Policy, Exh. E to Defendant's
Motion, p. 11. An “unplanned absence” is defined
as “an absence (other than a Protected
Absence) that was neither requested nor
approved” by management. See Id. at 10. The
Attendance Policy provides that any absence “with less
than 48-hour notice will be considered
unplanned.” Id. Attendance points are tracked
on a rolling basis, and are expunged from the employee's
record after twelve (12) months. See Id. at 9. The
Attendance Policy provides for potential termination when an
employee is assessed ten (10) Attendance Points. See
Id. at 12.
admits receiving a verbal warning about her attendance in
August 2016, and a written warning in September 2016.
See Plaintiff's Depo., pp. 47-48. Due to a
dental problem, Plaintiff was absent from work October 4-7,
2016. On each morning, she contacted Wayfair to
advise that she would be absent that day. None of the
absences was with 48-hour advance notice. After Plaintiff
received thirteen (13) Attendance Points, Wayfair terminated
her employment on October 10, 2016. Plaintiff filed a Charge
of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”), asserting that she was
discriminated against on October 10, 2016 (the date of her
termination) on the basis of her religion in violation of
Title VII and on the basis of genetic information in
violation of the Genetic Information Nondiscrimination Act
(“GINA”). See EEOC Charge, Exh. 3 to
Complaint [Doc. # 1]. Plaintiff stated in the EEOC Charge
that she expressed her religious beliefs openly and that her
manager “was aware of [her] mother's
illness.” See id.
receiving the Notice of Rights, Plaintiff filed this lawsuit
on June 30, 2017. In her Complaint, Plaintiff alleges that
she was discriminated against on the basis of her religion
and genetic information when Wayfair terminated her
employment. See Complaint, p. 2.
parties engaged in discovery, after which each party filed a
Motion for Summary Judgment. The motions have been briefed
and are now ripe for decision.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure provides for the
entry of summary judgment against a plaintiff who fails to
make a sufficient showing of the existence of an element
essential to her case and on which she will bear the burden
at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Curtis v. Anthony, 710 F.3d 587, 594
(5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). Summary
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(a); Celotex,
477 U.S. at 322-23; Curtis, 710 F.3d at 594.
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an “absence of a genuine issue of
material fact.” ACE Am. Ins. Co. v. Freeport
Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th
Cir. 2012). The moving party, however, “need not negate
the elements of the nonmovant's case.” Coastal
Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759
F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The
moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party's
case.” Malacara v. Garber, 353 F.3d 393, 404
(5th Cir. 2003) (citing Celotex, 477 U.S. at 323;
Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.
moving party meets its initial burden, the non-movant must go
beyond the pleadings and designate specific facts showing
that there is a genuine issue of material fact for trial.
Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141
(5th Cir. 2004); Littlefield v. Forney Indep. Sch.
Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its
resolution could affect the outcome of the action.”
Spring Street Partners-IV, L.P. v. Lam, 730 F.3d
427, 435 (5th Cir. 2013). “A dispute as to a material
fact is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th
Cir. 2006) (internal citations omitted).
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Andersonv. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
“‘Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial.'” Pioneer Exploration, L.L.C. v.
Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014)
(quoting Oliver v. Scott, 276 F.3d 736, 744 (5th
Cir. 2002); accord Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the nonmoving party must present
specific facts which show “the existence of a genuine
issue concerning every essential component of its
case.” Firman v. Life Ins. Co. of N. ...