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Gibson v. Wayfair Inc.

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

June 27, 2018

TOYA M. GIBSON, Plaintiff,
WAYFAIR, INC., Defendant.



         This 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.

         I. BACKGROUND

         Plaintiff 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.

         Justin 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.

         During 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[1]) 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.”[2] 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.

         Plaintiff 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.[3] 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.

         After 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.

         The 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.


         Rule 56 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.

         For 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. 1996)).

         If the 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).

         In 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. ...

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