United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
Rebecca Singleton, brings this action against defendant,
Young Men's Christian Association ("YMCA") of
Greater Houston, asserting a claim for employment
discrimination based on race (African-American) in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-2(a) (1) ("Title
VII"). Pending before the court is Defendant
YMCA's Motion for Summary Judgment ("Defendant's
MSJ") (Docket Entry No. 48), Memorandum in Support of
Defendant's Motion for Summary Judgment
("Defendant's Memorandum") (Docket Entry No.
49), and Plaintiff's Motion to Strike Portions of
Defendant's Summary Judgment Evidence
("Plaintiff's Motion to Strike") (Docket Entry
No. 51). For the denied as moot, Defendant's MSJ will be
granted, and this action will be dismissed with prejudice.
is an African-American woman who began working for the YMCA
on a part-time basis in January of 2009 as a group exercise
teacher at the Orem YMCA in Houston, Texas. She remained a
part-time employee until 2011 when she moved to the Tellepsen
YMCA in downtown Houston to serve as Healthy Living
December of 2011 or 2012 Chad Swirczek became the
plaintiff's supervisor when he was hired to be Executive
Director of the Tellepsen YMCA.
February of 2013 Swirczek recommended plaintiff for promotion
to Senior Healthy Living Director. Plaintiff was interviewed
by Swirczek and Vice-President of Human Resources, Jennifer
Lopez, who approved her for promotion. Plaintiff was promoted
and received a pay increase to $57, 000.00 making her one one
of the three highest paid employees at the Tellepsen
April of 2013 plaintiff took leave allowed by the Family
Medical Leave Act ("FMLA") . While plaintiff was
on FMLA leave she had a telephone conversation with Swirczek
during which Swirczek raised his voice and after which
plaintiff lodged a complaint against Swirczek to the
defendant's Human Resources office.
3, 2013, Swirczek gave plaintiff an Employee Counseling
Report. The Employee Counseling Report stated:
being issued this final written warning for several
infractions of company policy and standard codes of conduct:
1. The repeated offense of adj us ting your employees
timecards and not noting the comments for the adjustment.
2. [P]er Standards of Conducts #10, [f]or threatening your
staff to keep information related to your daughter and who
she dates to themselves or that you would make their Y career
3. [P]er Standards of Conducts # 9, [f]or not completing the
staff schedule/forecast per our conversation on March 4th in
a timely manner. Note that the Y was informed of your FMLA on
Thursday, March 28th as well you took off March 7th, which
informed me on March 4th and took off March 11 which you
informed me on Sunday March 10th at 10:22 p .m.
4. For the 2nd time, I have been made aware that you are
directly spreading rumors and gossip about me and other
employees. According to our Workplace Bullying policy, the
YMCA does not tolerate any form of bullying and anyone
engaging in workplace bullying can be terminated.
5. Not calling members back within 2 4 hours or 1 Business
Day, for example Jena Turner.
signed the Employee Counseling Report without writing any
comments in the section titled "Employee's
January of 2014 the YMCA reorganized the salaried employees
at the Tellepsen YMCA. Pursuant to the reorganization,
plaintiff's title changed from Senior Healthy Living
Director to Senior Program Director and the number of
employees under her direct supervision increased from one to
three, but her salary of $57, 000.00 remained the
same. Laura Wilson ("Wilson”),
a white woman, who similarly received the title of Senior
Program Director and experienced an increase in the number of
employees under her direct supervision during the
reorganization, received an annual salary increase to $53,
000.00 . Following the reorganization Swirczek
moved plaintiff - against her wishes - out of an office on
the fourth floor and into a cubicle on the second
March 26, 2014 the defendant terminated the plaintiff's
employment for failing to meet the standards and expectations
of the YMCA for a senior management position.
Standard of Review
judgment is authorized if the movant establishes that there
is no genuine dispute about any material fact and the law
entitles it to judgment. Fed.R.Civ.P. 56. Disputes about
material facts are "genuine" if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
106 S.Ct. 2505, 2511 (1986). A "party moving for summary
judgment must 'demonstrate the absence of a genuine issue
of material fact,' but need not negate the
elements of the nonmovant's case." Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en bane) (per curiam) (quoting Celotex Corp. v.
Catrett, 106 S.Ct. 2548, 2553 (1986)). "If the
moving party fails to meet this initial burden, the motion
must be denied, regardless of the nonmovant's
response." Id. If, however, the moving party
meets this burden, Rule 56 requires the nonmovant to go
beyond the pleadings and show by admissible evidence that
specific facts exist over which there is a genuine issue for
trial. Id. "[T]he court must draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies
are to be resolved in favor of the nonmovant, "but only
when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little, 37 F.3d at 1075.
alleges that defendant discriminated against her on the basis
of race (African-American) in violation of Title VII by
terminating her employment. Defendant argues that
it is entitled to summary judgment on plaintiff's claim
because plaintiff is unable to present evidence capable of
establishing a prima facie case of discrimination or to show
that the legitimate, nondiscriminatory reason for which her
employment was terminated, is a pretext for race
discrimination. Quoting Reeves, 120 S.Ct.
at 2109, plaintiff argues that Defendant's MSJ should be
denied because she has established a prima facie case, and a
"plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's asserted
justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.
VII protects individuals from discrimination by an employer
based on the "individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2 (a)
(1). Plaintiff may establish claims for employment
discrimination in violation of Title VII by using direct
evidence or by using the indirect method of proof set forth
in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817
(1973). Plaintiff relies on the McDonnell Douglas
framework to establish her claim.
s initial burden under the McDonnell Douglas
framework is to establish a prima facie case. 93 S.Ct. at
1824. If plaintiff establishes a prima facie case, the burden
shifts to the defendant to articulate a legitimate,
non-discriminatory reason for its actions. Id. If
the defendant meets this burden, the plaintiff must adduce
evidence capable of establishing that the defendant's
articulated reason is false and is, instead, a pretext for
discrimination. Id. at 1825.
Application of the Law to the Undisputed Facts
argues that it is entitled to summary judgment on
plaintiff's discrimination claim because plaintiff is
unable to establish a prima facie case. Alternatively,
defendant argues that plaintiff was terminated for the
legitimate, nondiscriminatory reason of failing to meet the
standards and expectations of the YMCA for a senior
management position,  and that plaintiff is unable to
present evidence capable of showing that the stated reason
for terminating her employment was not true or was, instead,
a pretext for race discrimination.
Plaintiff Fails to Establish a Prima Facie Case.
facie case of race discriminatory requires a showing that the
plaintiff (1) was a member of a protected class; (2) was
qualified for her position; (3) suffered an adverse
employment action; and (4) was replaced by someone outside of
her protected class or treated less favorably than other
similarly situated employees who were outside of her
protected class. See Alkhawaldeh v. Dow Chemical
Co., 851 F.3d 422, 426 (5th Cir. 2017); (citing
McDonnell Douglas, 93 S.Ct. at 1824); Paske v.
Fitzgerald, 785 F.3d 977, 985 (5th Cir.), cert.
denied, 136 S.Ct. 536 (2015).
does not dispute that plaintiff has satisfied three of the
four elements required to establish a prima facie case of
race discrimination, i.e., plaintiff belongs to a
protected class (African-American), plaintiff was qualified
for her position, and plaintiff suffered an adverse
employment action when the defendant terminated her
employment. Defendant argues that plaintiff
cannot establish a prima facie case of discrimination because
she cannot demonstrate that she was replaced by someone
outside of her protected class or that she was treated less
favorably than other similarly-situated employees who were
outside her protected class.
The "similarly situated" prong requires a Title VII
claimant to identify at least one coworker outside of his
protected class who was treated more favorably "under
nearly identical circumstances." This coworker, known as
a comparator, must hold the "same job" or hold the
same job responsibilities as the Title VII claimant; must
"share  the same supervisor or" have his
"employment status determined by the same person"
as the Title VII claimant; and must have a history of
"violations" or "infringements" similar
to that of the Title VII claimant.
Alkhawaldeh, 851 F.3d at 426. See also
Paske, 785 F.3d at 985 ("To establish the fourth
element, [plaintiff must] show, inter alia, that his
'conduct that drew the adverse employment decision [was]
"nearly identical" to that of the proffered
comparator who allegedly drew dissimilar employment
decisions.'"). Defendant argues that plaintiff is
unable to satisfy the fourth element of a prima facie case
because she has acknowledged that she "was not replaced
by anyone, " and because she cannot show that any
other similarly situated employee was treated more favorably
under nearly identical circumstances.
responds that she "has pointed to the disparate
treatment of Laura Wilson - a white woman - at a similar
position who was not terminated." Plaintiff argues
[t]he YMCA placed Ms. Singleton in the position of Senior
Program Manager, increasing the number of departments who
reported to her from one to four (like Ms. Wilson), but did
not give her a pay raise and claims not to have considered
this a "promotion", while Ms. Wilson was given a
pay raise, and Ms. Wilson's position change was
considered by the Y to be a promotion. As part and parcel to
the reorganization, Ms. Singleton was made to retain personal
training - a role with dozens of part-time trainers reporting
to her, while also being placed in charge of multiple
departments that she had no experience in managing. The
glaring part of the reorganization was that the departments
Ms. Singleton was put in charge of all had minorities in
charge of them, while Laura Wilson, Ms. Singleton's white
counterpart, was put in charge of departments all headed by
(and was reported to by) white people except the lone head of
child care. . . .
After complaining to members of the board, Ms. Singleton was
moved by Mr. Swirczek from her office on the fourth floor -
adjacent to the training floor where she could meet with
members to confidentially talk about their health, fitness,
and body image issues - and put in a cubicle on the second
floor that was not adjacent to anyone she worked with (heads
of departments she oversaw had offices on the first floor by
the pool, or the second floor in a different area). Ms.
Singleton could not meet with her team in her cubicle and
could not meet with personal training clients in her cubicle,
and Ms. Singleton could not oversee training on the fourth
floor main workout area, to do her job. Ms. Singleton was the
only management employee at her level without an office. Her
office on the fourth floor was filled with equipment when she
Ms. Singleton was not replaced when she was fired. The
organizational chart, implemented in January 2014, three
months prior to her firing, was ostensibly not race-related,
but instead to have many fewer direct reports to Mr.
Swirczek. [ sic] When Ms. Singleton was fired and
not replaced, all of her four reports then reported directly
to Mr. Swirczek, essentially undoing half ...