United States District Court, S.D. Texas, Houston Division
S. HANEN, UNITED STATES DISTRICT JUDGE.
Judy Harrison ("Harrison" or "Plaintiff) has
sued Defendant Chipolbrok America, Inc.
("Chipolbrok" or "Defendant") for
employment discrimination on the basis of age. Before the
Court is Defendant's Motion for Summary Judgment (Doc.
No. 18). Plaintiff has filed a response (Doc. No. 19) and
each party has filed a subsequent reply (Doc. Nos. 22, 26).
reasons set forth below, the Court hereby
DENIES Defendant's Motion for Summary
America is a Chinese-Polish Joint Stock Shipping company. As
a joint-venture, the company is structured to have two
co-Presidents, one a Polish national citizen and the other a
Chinese national citizen. (Doc. No. 1 at 2). Prior to the
fall of 2016, the company was subdivided into an Eastbound
Sector (which imported goods through the United States from
Asia) and a Westbound Sector (which exported goods from the
United States to Asia).
is a former employee of Chipolbrok. Plaintiff began working
at Chipolbrok in 2007, when she was fifty-five years old, as
a Customer Service Manager on the "Commercial
Team." (Doc. Nos. 1 at 2; 19, Ex. B). Plaintiff alleges
that when she was hired, she assisted both sectors, but that
before her termination, her position had shifted such that
she worked primarily with the Westbound Sector.
most of Plaintiff s time at Chipolbrok, four people
(including Plaintiff) worked on the Westbound commercial
team, and three people worked on the Eastbound commercial
team. (Doc. No. 18, Ex. B). During Plaintiffs time at the
company, Daniel Zhou ("Zhou") was the Chinese
co-President, followed by Yanhua "Stella" Ge
("Ge"). Mark Orent ("Orent") was the
Polish co-President for most of Plaintiffs time with the
company, followed by Slawek Piankowski
("Piankowski") (who only had a few weeks, if any,
overlap in employment with Plaintiff). The parties do
not dispute that both co-Presidents had to agree on all
personnel decisions. Plaintiff also had multiple supervisors
during her nine years with the company including: Malgorzata
Pawlokowska who was the Westbound Manager, and then Clifford
Kuhfeld ("Kuhfeld"), who was the Commercial
2015, Plaintiff was diagnosed with and treated for cancer.
Just before Plaintiffs diagnosis, Chipolbrok contemplated
hiring another individual to assist with the heavy workload
on the Westbound side. Plaintiff claims that she and an
Eastbound Sector employee, Reuby Olvera, requested that a new
employee be added to the team because they needed assistance
with documentation for both the Eastbound and Westbound
Sectors. (Doc. No. 19, Ex. A at 96). Plaintiffs diagnosis
apparently solidified the fact that the Westbound side would
need more assistance because as Plaintiff began treatment,
she also began working from home. In March of 2015,
Chipolbrok hired Veronica Rodriguez to assist with
documentation duties for both the Eastbound and Westbound
2016, after experiencing a downturn ir. Westbound business,
Chipolbrok decided to reorganize and run its team more
leanly. The Westbound business declined from 495 bookings in
2014, to 441 bookings in 2015, to 150 bookings in 2016, and
finally, to 42 bookings in 2017. In 2014 Chipolbrok earned
$172, 974 in net profit and in 2016 experienced a loss of
$928, 994. Chipolbrok alleges that, as a result, it decided
to terminate the employment a total of eight workers in two
rounds of lay-offs. Plaintiff and five others had their
employment terminated in October of 2016, followed by two
more terminations in June o::`2OI7. This left Chipolbrok with
a total of nine employees (plus two co-Presidents).
describes these lay-offs as a reorganization. After laying
off the eight employees, Chipolbrok claims that it merged the
Eastbound and Westbound Commercial Teams into a single
"U.S." Commercial Team because Westbound services
were indefinitely suspended. Chipolbrok also alleges that
after reorganization, five employees remained on the U.S.
Mark Roberts ("Roberts") worked for the Commercial
Team in Eastbound Sector sales. Roberts was promoted to
Manager of the reorganized U.S. Commercial Team. In this
role, Roberts came up with a reorganization plan that would
have kept Plaintiff on the Commercial Team as a Shipping
Associate, a position that George Amos ("Amos")-a
twenty-seven year old-held. (Doc. No. 15, Ex. F). The
cc-Presidents did not ultimately adopt Roberts's
recommendation and instead terminated Plaintiff and kept Amos
as the Shipping Associate. The other three U.S. Commercial
Team members included Malgorzata Pawlokowska (now the
Chartering Manager), Karla Montalvan (Sales), and Reuby
her termination, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission in December
of 2016. After receiving her right-to-sue letter, Plaintiff
filed this suit claiming that Defendant violated the Age
Discrimination in Employment Act (ADEA) and the Texas
Commission on Human Rights Act (TCHRA).
Standard of Review
judgment is warranted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled tc judgment as a matter of law." Fed.R.Civ.P.
56(a). "The movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of
a genuine issue of material fact." Triple Tee Golf,
Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007)
(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25 (1986)). Once a movant submits a properly supported
motion, the burden shifts to the non-movant to show that the
Court should not grant the motion. Celotex, 477 U.S.
non-movant then must provide specific facts showing that
there is a genuine dispute. Id. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). A dispute about a material fact is
genuine if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court must draw all reasonable inferences in the
light most favorable to the nonmoving party in deciding a
summary judgment motion. Id. at 255. The key
question on summary judgment is whether a hypothetical,
reasonable factfinder could find in favor of the nonmoving
party. Id. at 248.
summary judgment stage, the question is whether there is a
genuine issue of material fact regarding whether Chipolbrok
discriminated against Plaintiff on the basis of age. See
Fed.R.Civ.P. 56(a); Okoye v. Univ. of Tex. Hous. Health
Sci. Or., 245 F.3d 507, 512 (5th Cir. 2001). Proof of
discrimination can be through either direct or circumstantial
evidence. Enguita v. Neoplan USA Corp., No. Civ. A.
B-04-121, 2005 WL 32', '928O, at *3 (S.D. Tex. Dec.
2, 2005) (citing Nichols v. Loral Vought Sys. Corp.,
81 F.3d 38, 40 (5th Cir. 1996)). Direct evidence
"includes any statement or written document showing a
discriminatory motive on its face." Portis v. First
Nat. Bank of New Albany., 34 F.3d 325, 329 (5th Cir.
1994). Where a plaintiffs case is based on circumstantial
evidence, the Court applies the McDonnell Douglas
burden-shifting framework. Id. at *4 (citing
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004)); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973).
Plaintiff arguably has direct evidence of discrimination. As
the Court discusses below, Plaintiff has evidence that Ge,
the Chinese co-President of the company, made a
discriminatory statement about Plaintiffs age and Ge's
desire to terminate Plaintiffs employment. "[D]irect
evidence of discrimination is evidence which, if believed,
would prove the existence of a fact without any
inferences." Nichols, 81 F.3d at 40 (emphasis in
the original). Courts have explained that such evidence
"is rare." Id. Since 1he parties agree
that both co-Presidents must reach a consensus on personnel
decisions (and Plaintiff only has evidence of a
discriminatory statement from one of the acting
co-Presidents), and since some of Plaintiff s additional
evidence is circumstantial (requires inferences), the Court
will apply the traditional burden-shifting analysis.
the McDonnell Douglas burden-shifting approach,
Plaintiff first has the burden to establish a prima facie
case of discrimination. See Rachid, 376 F.3d at 312.
If Plaintiff establishes a prima facie case, then the burden
shifts to Defendant to articulate a legitimate,
nondiscriminatory reason for its actions. Id. If
Defendant does so, Plaintiff must then show that
Defendant's "stated reason is pretextual and that
the true reason is unlawful discrimination." Gerdin
v. CEVA Freight, L.L.C., 908 F.Supp.2d 821, 827 (S.D.
of pretext will permit a trie:` of fact to infer that the
discrimination was intentional." Id. "In
the summary judgment setting, the plaintiffs burden is not to
persuade the court that defendant's explanation is
incorrect but, rather, to raise a genuine issue of material
fact for trial by presenting evidence that both (1) rebuts
the defendant's nondiscriminatory reason, and (2) creates
an inference that impermissible discrimination was a
determinative factor in the challenged employment
decision." Id. (citing E.E.O.C. v. Tex.
Instruments Inc., 100 F.3d 1173, 1180-81 (5th Cir.
1996)). "Although intermediate evidentiary burdens shift
back and forth under this framework, '[t]he ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at
all times with the plaintiff.'" Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (quoting Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).
Defendant's Objection to the Summary Judgment
objects to certain portions of the Declaration of Clifford
Kuhfeld as hearsay. Specifically, Defendant objects to
paragraphs 5 and 11 in which Kuhfeld states that on two
separate occasions Ge told him that she wanted to fire
Harrison because Harrison was too old, too sick, and costing
Chipolbrok too much in medical expenses.
Rule of Evidence 801(d)(2) notes that a statement is not
hearsay if "[t]he statement is offered against a party
and ... (D) was made by the party's agent or employee on
a matter within the scope of that relationship and while it
existed." xi order for a statement to qualify
as a statement of a party opponent, it must be one that was
"made by a person whom the party authorized to make a
statement on the subject." Fed.R.Evid. 801(d)(2)(C).
Thus, the question is whether Ge is authorized to speak on
behalf of Chipolbrok. Thomas v. Atmos Energy Corp.,
223 Fed.Appx. 369, 374 (5th Cir. 2007) (absent showing that
the employee was authorized to make a statement, the
testimony is inadmissible hearsay).
Plaintiff identifies Ge as the co-President of Chipolbrok
America and states that she was primarily responsible for
hiring and firing employees (i.e., she and the other
co-President had to agree on personnel decisions). Thus, the
statements were (1) by the party's agent or servant (Ge);
(2) concerning a matter within the scope of the agency or
employment (terminating employment); and (3) made during the
existence of the relationship (while Ge was the co-President
of Chipolbrok). Fed.R.Evid. 801 (d)(2). As such, the
statements are admissions of a party-opponent and therefore,
do not constitute hearsay. The Court overrules
Defendant's objection to this summary judgment evidence.