United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On April 15, 2019, the report of the Magistrate Judge
(Dkt. #44) was entered containing proposed findings of fact
and recommendations that Defendant Humana Behavioral
Health's (“Humana”) Motion to Dismiss
Plaintiff's Amended Complaint (Dkt. #24) be denied as
moot and Defendant's Motion for Summary Judgment (Dkt.
#38) be granted. Having received the report of the Magistrate
Judge, having considered Plaintiff Kimberly Crockett's
(construed) Objections (Dkts. #45, #46, #48), Defendant's
Response (Dkt. #47), Plaintiff's Reply (Dkts. #49, #50),
Defendant's Sur-reply (Dkt. #51), Plaintiff's second
set of Objections (“Second Objections”) (Dkt.
#52), and Defendant's Response to Plaintiff's Second
Objections (Dkt. #53), and having conducted a de novo review,
the Court is of the opinion that the Magistrate Judge's
report should be adopted.
underlying facts of this case have been set forth previously
(see Dkt. #44); as such, the Court sets forth only
those facts pertinent to Plaintiff's Objections. In May
2014, Plaintiff was employed by Defendant as a Clinical
Specialist-UM (Dkt. #38 at p. 5). In June 2016, Plaintiff was
transferred to a different department and held the title
“Clinical Guidance Specialist” (Dkt. #38- 1 at p.
9, 11). In this role, she was supervised by Ms. Nichelle
Phillips (Dkts. #38 at pp. 5-6; #38-4 at p. 14). Defendant
began taking steps to reduce its work force in early 2017; in
connection with this reduction, Defendant determined that
four Clinical Guidance Specialist positions would be
terminated (Dkt. #38-4 at pp. 12, 15). Ms. Phillips and two
other Humana employees assessed the Clinical Guidance
Specialists, including Plaintiff, against seven weighted
criteria assigning each criterium a score between one and
five-one being the lowest and five being the highest (Dkt.
#38-4 at pp. 15, 17-18). Plaintiff received one of the bottom
four scores and was therefore selected for layoff (Dkt. #38-4
at p. 15). On March 1, 2017, Defendant notified Plaintiff
that she had been selected for layoff and also provided
Plaintiff a copy of a voluntary release and separation
agreement (“Agreement”) (Dkts. #38 at p. 1; #38-1
at pp. 19-20). Plaintiff executed the Agreement on May 1,
2017 (Dkt. #38-1 at p. 20). Pursuant to the Agreement,
Plaintiff gave a “full and final release and settlement
of any and all legal and equitable claims” in exchange
for receiving four weeks' worth of salary, one month of
medical and dental benefits, and access to outplacement
services (Dkt. #12 at pp. 2-3).
initiated the instant lawsuit on June 8, 2018 (Dkt. #1),
filing her Amended Complaint on October 11, 2018 wherein she
asserts a claim for “employment disability
discrimination” (Dkt. #19). Plaintiff alleges that she
was selected for layoff based on a medical disability and
that she felt “improper influence” to sign the
Agreement, which she did not understand (Dkts. #19 at p. 1;
#40 at p. 1). Defendant moved to dismiss Plaintiff's
claims (Dkt. #24), and after an attempt at mediation proved
unsuccessful in January 2019 (Dkt. #37), Defendant further
filed a Motion for Summary Judgment on March 1, 2019 (Dkt.
#38). On April 15, 2019, the Magistrate Judge entered a
report, recommending that Defendant's Motion to Dismiss
be denied as moot, Defendant's Motion for Summary
Judgment be granted and Plaintiff's claims be dismissed
with prejudice (Dkt. #44). On May 3, 2019, Plaintiff filed a
document asking the Court not to dismiss her claims (Dkt.
#45), which the Court construes as objections to the report.
Plaintiff filed additional objections on June 25, 2019 (Dkt.
TO REPORT AND RECOMMENDATION
who files timely written objections to a magistrate
judge's report and recommendation is entitled to a de
novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2)-(3). Objections to a report must
specifically identify portions of the report and the basis
for those objections. Fed.R.Civ.P. 72(b); see also Battle
v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir.
1987) (explaining that if the party fails to properly object
because the objections lack the requisite specificity, then
de novo review by the court is not required.). In other
words, a party objecting to a magistrate judge's report
must specifically identify those findings to which he or she
objects. Moreover, the District Court need not consider
frivolous, conclusory, or general objections. Nettles v.
Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en
banc), overruled on other grounds by Douglass v. United
Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en
does not specify in her objections those findings in the
report to which she objects; rather, Plaintiff broadly
“ask[s] the [C]ourt to proceed without dismissing [her]
claim” because: (1) she has evidence regarding her
disability; and (2) Nichelle Phillips, Plaintiff's
supervisor at Humana, lied regarding her performance (Dkt.
#45). Plaintiff elaborates in her Second Objections that her
evidence regarding her disability is relevant because it
“demonstrate[s] that [she] was telling the truth about
[her] condition and the discovery from Humana…revealed
the true reason why Humana laid [her] off;” Plaintiff
also alleges once again that she was under improper influence
in signing the Agreement (Dkt. 52). Plaintiff's
objections challenge the declaration of Nichelle Phillips
submitted by Defendant in support of its Motion for Summary
Judgment (Dkt. #38-4 at pp.13-18) and ask the Court to
consider other evidence related to her disability (Dkt. #52).
Plaintiff further contends-as she did in her response to
Defendant's Motion for Summary Judgment-that Defendant is
retaliating against her by seeking its reasonable
attorney's fees (Dkt. #45).
avers that she has evidence-and has submitted same to the
Court (Dkts. #46, #48, #50)-regarding her disability and that
such evidence is relevant and pertinent to her claim (Dkts.
#45, #52). Plaintiffs additional evidence, medical records
from North Texas Urology, purports to establish that
Plaintiff has a disability. However, Plaintiff does not
clarify how such records would change the analysis or
ultimate recommendation of the report. Indeed, in finding
that Plaintiff had failed to properly plead her
“employment disability discrimination” claim, the
report assumed (without expressly stating) that Plaintiff had
established a prima facie case-which would require
her to demonstrate that she suffered from a disability-but
concluded nonetheless that no issue of material fact existed
in regards to Plaintiff's claim because Plaintiff failed
to come forth with any evidence to suggest that
Plaintiff's layoff due to a reduction in work force was
merely pre-textual (Dkt. #44 at pp. 13-14). Her conclusory
allegations that Humana discovered her disability and that is
the “true reason” for her layoff is not
sufficient to demonstrate pre-text. “[A]n
employee's own subjective belief of discrimination, no
matter how genuine, cannot serve as the basis for judicial
relief.” Malimban v. Continental Airlines, 165
F.3d 24 (5th Cir. 1998). Similarly, Plaintiff's passing
assertion in her Second Objections that she “was
under…improper influence regarding the severance
agreement” is likewise insufficient; as the Magistrate
Judge indicated in her report:
The record does not provide any basis for an inference that
Defendant coerced or unduly influenced Plaintiff into
executing the Agreement; Plaintiff has presented nothing more
than conclusory assertions of “improper
influence” and/or duress. See Porter v. Domtar
Paper Co., LLC, No. 1:12cv001-SA-DAS, 2013 WL 215975
(N.D. Miss. Jan. 18, 2013) (finding plaintiff was not under
duress of losing his job where he provided no proof of
intimidation and coercion and signed the agreement the day
after his last day of work with the company). Plaintiff's
unsupported and conclusory allegation is insufficient.
(Dkt. #44 at pp. 10-11).
Plaintiff's assertion that Ms. Phillips was untruthful in
her statements to the Court, Plaintiff did not object or
otherwise challenge Defendant's summary judgment
evidence. She cannot do so now for the first time.
See, e.g., Hickson v. Bowles, No.
3:95-cv-2374, 1997 WL 576406, at *1 (N.D. Tex. Sept. 9, 1997)
(citing Donaghey v. Ocean Drilling & Exploration
Co., 974 F.2d 646, 650 at n.3 (5th Cir. 1992) (holding
that where no party objected to or challenged admissibility
of evidence, the objections were waived)).
regarding Plaintiff's assertion that Defendant is
retaliating by seeking attorney's fees, the report
previously found that “[s]uch claim is not properly
before the Court” as it was raised only in response to
Defendant's Motion for Summary Judgment, and
“[n]otwithstanding, any claim for retaliation must
still be dismissed as Defendant's request for
attorneys' fees and/or its defense in this lawsuit is not
an adverse employment action under the ADA” (Dkt. #44
at n.3). Because Plaintiff's “retaliation
claim” was not ...