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Harrison v. Chipolbrok America, Inc.

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

April 19, 2019

JUDY A HARRISON, Plaintiff,
v.
CHIPOLBROK AMERICA, INC, Defendant.

          ORDER

          ANDREW S. HANEN, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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).

         For the reasons set forth below, the Court hereby DENIES Defendant's Motion for Summary Judgment.

         I. Material Facts

         Chipolbrok 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).

         Plaintiff 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.[1]

         For 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).[2] 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 Manager.

         In 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 commercial teams.

         In 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).

         Chipolbrok 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. Commercial Team.

         Pre-reorganization, 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 Olvera (Documentation).

         After 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).

         II. Standard of Review

         Summary 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. at 321-25.

         The 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.

         At the 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).

         Here, 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.

         Under 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. Tex. 2012).

         "Evidence 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)).

         III. Discussion

         A. Defendant's Objection to the Summary Judgment Evidence

         Defendant 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.

         Federal 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).

         Here, 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.

         B. ...


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