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Moore v. Scott

United States District Court, W.D. Texas, Austin Division

June 19, 2019





         Before the Court are Defendant's Motion for Summary Judgment (Dkt. No. 17); Plaintiff's Response (Dkt. No. 22); Defendant's Reply (Dkt. No. 23); and Plaintiff's Sur-Reply (Clerk's Dkt. No. 27). The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the Local Court Rules.


         In this lawsuit, Layla Moore alleges that Baylor Scott & White Health (“BS&W”) terminated her employment because of her race and disability in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, 42 U.S.C. § 1981, and the Texas Commission on Human Rights Act (“TCHRA”). Moore also alleges that she was retaliated against after she made complaints of race discrimination in violation of Title VII, the TCHRA and § 1981. BS&W asks that the Court enter summary judgment in its favor on all of Moore's claims.[1]


         Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.


         The following facts are based on the summary judgment evidence, viewed in the light most favorable to Moore. Moore began her employment with BS&W on April 4, 2016, and worked as a Certified Medical Assistant. Moore worked at BS&W's family medicine clinic in Copperas Cove, Texas for several months before she was transferred to the Urgent Care facility in Killeen. Moore, who is African-American, testified that she suffers from severe anxiety and panic disorder. Dkt. No. 22-21 at 13-14; 25-26. Moore's suit primarily arises out of a conversation she had with co-workers on or around November 5, 2016. A group of workers were discussing the upcoming presidential election and Moore mentioned that she wasn't voting. Dkt. No. 17-30 at 9-10. One of the co-workers, who is white, then said, “I know why you're not voting, ” and Moore responded, “Okay. Well, why?” and the co-worker said “Oh, well, because you're a felon.” Id. at 10. Moore expressed that she thought that statement was inappropriate, and asked why she would say something like that, and the other employee said, “Well, because all black people or most black people have felonies, so I know that's why you can't vote, ” to which Moore responded, “Well, actually, um, I just thought I couldn't vote because I was a North Carolina resident.” Id. Moore stated again that she thought the statement was inappropriate, and she intended to report it to their supervisor, which led to the the other employee to remark to a third employee that Moore was acting like “she had called [Moore] a nigger.” Id.

         Immediately following this conversation, Moore tried to report the event to her supervisor, Marlene Hill, but she was unable to find her. Dkt. No. 17-30 at 8. Ultimately, she reported the conversation the next day. Id.; Dkt. No. 22-21 at 12. For her part, Hill categorically denies ever receiving a complaint from Moore, and BS&W's human resources records also do not reflect Hill ever passing on any such report. Dkt. No. 17-33 at 7. The co-worker also denies ever making any of the statements attributed to her. Dkt. No. 17-37 at 4. Within weeks of the complaint, Moore received three write-ups. Dkt. Nos. 22-13; 22-14, 22-17. The first two, though they addressed events from several weeks past, were dated December 4, 2016. After these two write-ups, Moore contacted an HR help line called “People Place” to complain about the work environment and how she was being treated. Dkt. No. 22-15. On December 22, Moore received yet another write up, involving charting a patient's temperature when she had not taken the temperature.

         Moore felt this third infraction was further retaliation, and she therefore went to the HR department and made an in-person complaint, meeting with HR representative David Shaw. She explained not only that she felt she was being harassed and retaliated against, but she also informed him she was suffering from panic attacks and anxiety as a result. Dkt. No. 22-16 at ¶ 17. Shaw stated he would pass her information on to the HR person assigned to Moore's workplace, and Moore inquired about whether she should go back to work. Id. at ¶ 8. Shaw told her that “I'm not trying to make you go back. I would just say to at least call them, call your supervisor and let them know that you either came to HR and you are going home, or that you just left for the day, that way it's not like job abandonment, and then they would have to release you from employment.” Id.[2]Moore informed Hill via text message that she was going home sick, and Hill responded that she needed to know if Moore would be working December 23-24, as she was scheduled. Dkt. No. 22-2. After an exchange of brief messages regarding whether Moore would be working those days, Hill wrote that “Layla, I just spoke with HR, this will not be resolved today as it will be investigated. However, you were not advised not to return and therefore you must return to your shift and role or it could be considered abandonment of job.” Id. Moore responded to explain that she was unable to return, as “the stress at the job is causing [her] to be ill.” Id. She further explained that she was not just leaving work, but that “me being so stressed crying and unable to work to me is no different than leaving sick which is basically what I did the only difference is that I went to HR.” Id. Consistent with this, when she left the HR office, Moore went to the Freedom Medical Clinic, where she presented with symptoms of anxiety, and was told she should stay home from work until December 26. Dkt. No. 22-21 at 18; Dkt. No. 22-10.

         Later that afternoon, another supervisor, Chris Payne from the Killeen Urgent Care Clinic, texted Moore and again told her that she needed to work the next two days and that “[n]ot returning to work would be filed as voluntary resignation.” Dkt. No. 22-3. Moore responded that “I'm sorry I'm ill. . . . Me not coming is not just because I went to HR[, ] which you all are making it seem. It is because clearly me crying having anxiety attacks and being overwhelmed with stress today to the point I was in my car hyperventilating is not good for work.” Id. Payne seemed not to take these statements at face value, and, ignoring Moore's statements that she was calling in sick, responded that “[t]he information that was given to me from HR is that you will need to report for your shift based on the information they currently have from you regarding the situation. If there are additional details you need to share, please call People Place.” Id. Notwithstanding Moore's clear statements that she was calling in sick, on December 26, 2016, BS&W fired Moore because she had two straight days of “no show/no call.” Dkt. Nos. 22-11; 22-17. Inconsistent with what was actually said in their communications-which are in writing having been sent via text message-Hill described the events in the termination paperwork as follows:

On 12/22, employee abandoned job without notifying supervisor of absence nor return. Upon reaching employee, employee was instructed to return to next scheduled shifts; however, employee insubordinately refused to return to scheduled shifts and did not call nor show up for scheduled shifts on 12/23 nor 12/24.

Dkt. No. 22-17. As noted earlier, BS&W claims it was never aware of any complaints of racially charged remarks, nor was it aware that Moore suffered from any disability, much less an anxiety or panic disorder. It further contends that Moore was properly fired for not showing up to work on December 23 and 24, and not calling ahead to say she would not be there.

         IV. ANALYSIS

         Moore appears to allege race discrimination and retaliations claims under Tile VII, the TCHRA and 42 U.S.C. § 1981, and a disability discrimination claim in violation of the ADA and TCHRA.[3] BS&W contends that there are no genuine issues as to any material fact on any of Moore's claims in this case and that summary judgment should be entered. Specifically, BS&W argue that Moore has failed to establish prima facie cases of disability or race discrimination and that even if she had, she has failed to demonstrate its proffered reason for her termination was a ...

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