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Morris v. Texas Health and Human Services Commission

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

August 8, 2019

LENA D. MORRIS, Plaintiff,



         Plaintiff, Lena D. Morris, brings this action against defendant, the Texas Health and Human Services Commission ("THHSC") for race, sex, and age discrimination and for retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-2, et seq., and for interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Pending before the court are Defendant's Motion for Summary Judgment ("Defendant's MSJ") (Docket Entry No. 22), and Plaintiff Lena D. Morris' Motion for Leave to File Sur-Reply to Defendant's Reply to Plaintiff's Opposition to the Motion for Summary Judgment ("Plaintiff's Motion for Leave to File Sur-Reply") (Docket Entry No. 2 9) . For the reasons set forth below, Plaintiff's Motion for Leave to File Sur-Reply will be denied as moot, and Defendant's MSJ will be granted in part and denied in part.

         I. Standard of Review

         Summary 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.

         II. Undisputed Facts[1]

         In December of 2014 Lisa Pietrzyk ("Pietrzyk"), Director of the Off ice of Inspector General ("OIG") for the THHSC, offered Morris, an African-American woman, an Investigator VI position at the Electronic Benefits Transactions ("EBT") Unit in Houston.[2]Morris accepted the offer and began working for the THHSC as a probationary employee on January 9, 2015.[3] Morris initially reported to Ronald Mendoza ("Mendoza"), manager of OIG's Houston office.[4] Within Morris' first month of employment, Orlando Mayers ("Mayers") was hired to manage the EBT Unit, and he became Morris's direct supervisor even though he was based in Austin.[5]

         On her first day of work Morris provided Mendoza a Certification of Health Care Provider for Family Member's Serious Health Condition intended to show that she qualified for intermittent FMLA leave to care for her daughter. Morris filled out, signed, and dated the first page on January 8, 2015, stating:

My leave will be sporadic and unscheduled at times. I will have to transport her to various doctor and therapist appointments. And during the time that she is incapacitated, I will need to stay with her. I have to tend to her daily needs during these times.[6]

         The subsequent pages had been filled out, signed, and dated by her daughter's health care provider on September 24, 2014.[7]

         Two other employees of the EBT Unit in Houston both started their employment at or near the time that Morris started her employment there: Rick McDougald ("McDougald") (Investigator VI) and Steve Lightfoot ("Lightfoot") (Investigator V) .[8] Although Lightfoot's position as Investigator V was a lower-ranked position than Morris's and McDougald's position, Lightfoot earned $63, 139.00 per annum while Morris and McDougald earned $52, 800.[9]

         On January 14, 2015, Mendoza sent Pietrzyk an email stating:

[Morris] provided FMLA documentation for a family member (daughter) that she occasionally takes to the doctor. She has requested the following days off or adjustments of hours listed:
The week of 1/20/15 - FMLA - Would like to work 11 hours on 1/21, 1/22 and 10 hours on 1/23.
The week of 02/20/15 - Would like to work 4-10 hour[] days to avoid taking leave.
The week of 02/26/15-02/27/15 Annual Leave - Would like to work 3-10 hour days for that week.
The week of 03/03/15 - FMLA - Would like to work 4-10 hour[] days to avoid taking leave.
The week of 03/13/15 - FMLA - Would like to work 4-10 hour[] days to avoid taking leave.
These are appointments that are already scheduled. She stated if other days come up unexpectedly, she will inform us. She also indicated the reason she would like to avoid having to take leave is due to if her daughter is hospitalized, she will have the leave to cover her being out.[10]

         On January 15, 2015, Pietrzyk and Mayers engaged in an exchange of emails about Morris's requests for leave that began when Pietrzyk responded to Mayers' email from the day before by asking, "Have all required documents been received and who reviewed them? Is Lena Morris EBT or FI?"[11] Mendoza replied by attaching Morris's FMLA documents to an email that he sent to Pietrzyk stating, "She is with EBT."[12] Pietrzyk responded by asking, "Does this new employee meet the FMLA Ch 5 eligibility?"[13] Mendoza replied: "[Morris] has been employed with the State 17 years. She is a transfer from TWC. She stated the FMLA was approved by the other agency she was employed with. If more information is needed, please let me know."[14]

         Later the same day, i.e., January 15, 2015, Pietrzyk forwarded the email chain about Morris's FMLA requests to James Williams, Human Relations Manager, in the THHSC s Human Resources Section along with the following message: "Does this FMLA flex schedule seem consistent with our agency? My understanding is that she's to take leave and it[] codes as FMLA. OIG doesn't allow probationary employees to participate in flex schedule[s] like 10 hour days unless they pass probation."[15] Williams responded:

I believe we are dealing with two separate policies. Supervisory approval to work or change a flexible schedule is required according to the HR Policy referenced below.
Flex Schedule
(Revised 5/1/04)
A flex schedule is a work schedule that allows flexibility in the employee's arrival and departure times. An employee must receive supervisory approval to work or change a flexible schedule. Office coverage must be maintained under the flex schedules. State offices must be open between 8 am and 5 pm, Monday through Friday, and remain open during the noon hour of each workday with at least one person on duty to accept calls, receive visitors, and transact business.
The FMLA should be invoked for the employee's leave related to the WH-380-F for her daughter's medical condition. We can discuss further if needed.[16]

         Pietrzyk forwarded Williams' response to Mayers.[17]

         On March 17, 2015, Morris and Mayers exchanged text messages regarding Morris's intent to be out of the office on Wednesday, March 18th; Mayers told Morris that he thought she intended to be out of the office on March 17th and that she needed to work eight hours on March 18th.[18]

         On March 23, 2015, Mayers sent an email to Cleve Tolver, Human Resources Specialist IV, in THHSC's Employee Relations Unit, asking Tolver to call him to discuss documents regarding Morris's request for time off.[19] Later that day Tolver sent Mayers an email stating:

FMLA can be granted for the employee to care for the eligible family member.
I did notice that the doctor completed the form back in September of 2014. I would like to suggest that you obtain new information and start the FMLA based on what the new information states.
1st, check to see if the employee has 12 months of state service and has worked 1250 hours within the last year. If the employee meets these requirements, provide the employee with form WH381 to inform them they meet the requirements. Then, provide them with WH380E to return to you in 15 days.
When you receive the new WH380E, scan it to me and we can discuss.[20]

         On March 24, 2015, Morris sent an email to Mayers titled "Harassment over FMLA and Time," which Mayers forwarded to Pietrzyk the same day. In pertinent part the March 24, 2015, email states:

. . . You indicated on Friday that you had already fired Gina, the only other woman in your three units for missing too much work. It is distressing when a supervisor threatens one's job. I believe this because you clearly stated that you are out to fire me for not having, as you put it, ". . . worked a full week since you have been here." This was said by you despite my having used Flex Time to make up my hours and work a 40 hour week, all previously approved by you. I was told when I first came on board that my permanent manager would work with me on my leave situation. I requested to work 7:00 a.m. to 3:30 p.m. since that was my schedule at the agency that I transferred from. I was told that once Steve started I would be able to work the "Flex Time" hours where I was working 7:00 a.m. - 3:30 p.m., the same as Rick has been allowed to work all along. You claim that Lisa Pietryzk [sic], the Director of the division, is the one telling you that I cannot do this now because I am on probation; yet she is the one who approved Rick's Flex Time. Why the double standard? Why do women not get the same flexibility as the men? Is the real reason you want to fire me is to be rid of all of the women, or is it that you just don't like the idea of my being able to take off to take my "special needs daughter" to her appointments?
This morning you called to inform me that you received an email that states that even though I turned in my FMLA paperwork when I began working here that I am not on FMLA. You then gave the reason why I am not on FMLA as being that the paperwork that I turned in was done in September. Lisa has had the paperwork since I began and now management waits until almost three months later to tell me that it needs to be up-to-date. This is unacceptable. And you are saying that only you can designate my Sick leave as FMLA in CAPPS. This is a blatantly transparent attempt to circumvent the FMLA protections that are afforded me. . .
The Agency knew prior to my hire that I was a single mom of a special needs child. I left two voice mail messages for Lisa before showing up to report to work, that were never answered by her so that I could discuss this with her before coming on board. I have kept you informed of when my daughter's doctor's appointments have been, as well as having filed all of the appropriate FMLA paperwork with the agency for her condition. As a matter of fact, I have forwarded to you several times the FMLA paperwork that I have filed with the agency because you said that Lisa did not have it and wanted you to get it from me. . .
You keep referring to Texas being an "At Will" state which allows you to fire me for any, or even no reason at all. As I told you, if you are firing me for time missed while taking my child to the doctor, or anything else covered by FMLA, you will be in violation of Federal Law, which supersedes state law and agency policy /memorandums. We have discussed these FMLA issues several times, and most of the time that I was off for my daughter; I made up the time by fulfilling my 40 hours per week with your full knowledge and permission.
As I stated to you on Friday, I am feeling harassed at this point with the repeated requests for the same FMLA paperwork, and your threats to fire me because of my taking off to care for my daughter and take her to her doctor's appointments. At this point, I am afraid that you will say that you are firing me for a made up reason in an attempt to circumvent the rationale behind the FMLA protections. . .
I did not choose for my daughter to have the problems that she does. I have had to work and care for her virtually on my own. If every agency or business behaved in the way that you are acting then there would be no work available for parents of special needs children. . . .
Per our conversation, when you informed me that I will not be able to use "Flex Time," you also said that I will just have to use my personal leave time, leaving me with no cushion the next time my daughter is hospitalized. That is your right to do so, but you cannot deny my right to take my child to the doctor or hospital as long as I have filed the proper FMLA paperwork, as I have. You also stated that you may send me to El Paso, and if I declined then that would be another reason that I can be fired. I know that traveling is a job requirement, and would be happy to travel anywhere. I would just make arrangements for my daughter. . . .[21]

         On March 27, 2015, Morris filed an internal complaint with the THHSC's Office of Civil Rights, alleging that she was being discriminated against because of her sex, female, [22] and that she was being subjected to "a campaign of harassment due to the dislike of my bringing in FMLA paperwork on my first day of employment. I was asked to provide the paperwork on no less than three occasions."[23]

         On April 6, 2015, Tolver and Mayers engaged in an exchange of emails about Morris's FMLA eligibility in which Tolver informed Mayers that he had heard back from all the agencies, that Morris had previously been certified for FMLA with the Office of Injured Employee Counsel, and that Mayers should provide Morris with form WH380E/F and give her the form WH381 once she was determined to meet requirements.[24]

         Also on April 6, 2015, Mayers and Pietrzyk responded to the email that Morris sent to Mayers on March 24, 2015, and Mayers forwarded to Pietrzyk. In pertinent part, Mayers denied making many if not most of the statements that Morris attributed to him, denied having approved Morris's use of flex time to make up time off, i.e., flexing within the week, and asserted that he had not denied Morris sick leave. Pietrzyk reminded Morris that they had previously discussed that OIG work hours are eight hours between 7:00 a.m. and 6:00 p.m. and could not end earlier than 4:00 p.m, flex time within a day must be preapproved, and probationary staff are not eligible to work a compressed work week. Pietrzyk referred Morris to Tolver for FMLA questions, and advised Morris to make arrangements for childcare ahead of time because her position required up to 60% travel that could be required on a daily, weekly, monthly, or annual basis based on business need.[25]

         On April 8, 2015, Tolver sent Mayers an email confirming that Morris "meets the requirements for FMLA. "[26]

         On April 29, 2015, Morris raised her voice to Mayers during a meeting when Mayers informed her that she would have to work late.[27]On April 30, 2015, Mayers sent Morris an email "to recap my discussion concerning the outburst to instructions regarding working late, "[28] in which Mayers wrote: "[P]lease refrain from any open opposition to instructions given by management. Please discuss in private any concerns/issues you may have with the di rec ti ves. "[29] On May 7, 2015, Morris replied with an email to Mayers copied to Pietrzyk in which Morris agreed that "we should keep our disagreements private, "[30] but complained, "I find it very disturbing that you want me to talk to you in private so there will be no witnesses, yet you hold your confrontational meetings with me in the presence of multiple male staff."[31]

         On May 8, 2015, Mayers called Morris to a meeting at which he gave her a termination letter, [32] stating in pertinent part:

After much deliberation, it has been determined that you are not suited for the assigned Investigator VI position. I regret to inform you that your last day of employment with [THHSC-OIG] will be May 08, 2015.
The Department's policy regarding probationary employees is contained in Health & Human Services Human Resources Manual, Chapter 11, which states in part:
"Probationary employees may be dismissed for any nondiscriminatory reason at any time during the employees' probationary period (first six months of employment) . . . if it is determined the employee was not suited for the assigned position. In these cases:
• The employee will receive written notice of discharge, which states that employment is terminated because the hiring authority determined the employee was not suited for the assigned position,
• No. cause will be cited . . .[33]

         On November 23, 2015, the THHSC's Office of Civil Rights sent Morris a letter stating that its investigation of her March 27, 2015, internal complaint did not substantiate her allegations.[34]

         III. Plaintiff's Motion to File Sur-Reply

         Asserting that "Defendant has attempted to raise in its Reply Brief [] arguments that Defendant did not raise in its Dispositive Motion filing, including, but not limited to, a different legal argument for seeking to have Plaintiff's FMLA Retaliation Claim dismissed as a matter of law, "[35] Morris seeks leave to file a sur-reply. Asserting that its reply did not raise new legal theories or present new evidence, the THHSC opposes Morris's motion for leave to file sur-reply.[36] After carefully reviewing the THHSC's Reply in Support of Motion for Summary Judgment, the court concludes that it neither raises new legal theories nor presents new evidence. Moreover, review of Morris's proposed sur-reply shows that she seeks only to clarify applicable law as stated in two cases: Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006), and Lanier v. University of Texas Southwestern Medical Center, 527 Fed.Appx. 312 (5th Cir. 2013) .[37]Because the THHSC cited both of these cases in its original summary judgment brief, and because the court does not find the clarifications offered in Morris's sur-reply necessary to rule on Defendant's MSJ, Morris's Motion for Leave to File Sur-Reply will be denied as moot.

         IV. Defendant's Motion for Suary Judgment

         The THHSC argues that it is entitled to summary judgment on Morris's Title VII and FMLA claims because she is unable to establish a prima facie case and, alternatively, because Morris was discharged for the legitimate, nondiscriminatory reason of insubordination. Morris responds that fact issues preclude granting the THHSC's motion for summary judgment on either her Title VII or her FMLA claims.

         A. Title VII Claims

         Morris asserts Title VII claims for race and sex discrimination and for retaliation for having engaged in activity protected by Title VII. Morris alleges that she was paid less and not provided the same opportunity to use flex time as her non-African-American male counterparts, and that when she opposed the THHSC's discriminatory treatment she suffered a hostile environment and her employment was terminated in retaliation for having complained of discrimination.[38] In response to Defendant's MSJ, Morris argues that "she was discriminated against with regards to pay because of her race and gender, "[39] and that her "Title VII retaliation claim cannot be dismissed as a matter of law."[40]

         1. Applicable Law

         Title 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). A 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). See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). Direct evidence "is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir. 2004) . Morris relies on the McDonnell Douglas framework to establish her Title VII claims.[41] Morris's initial burden under the McDonnell Douglas framework is to establish a prima facie case. 93 S.Ct. at 1824. If she establishes a prima facie case, the burden shifts to the THHSC to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the THHSC meets this burden, Morris must adduce evidence capable of establishing that the THHSCs stated reasons are false and are, instead, pretexts for discrimination. Id. at 1825.

         2. Application of the Law to the Undisputed Facts

         (a) The THHSC is Entitled to Summary Judgment on Morris's Claims of Race and Gender Discrimination.

         The THHSC argues that Morris cannot prove that it discriminated against her on the basis of race and/or gender by paying her less than male employees who were not African-American.[42]Morris argues that she has adduced sufficient evidence to raise a genuine issue of material fact for trial.[43]

         To establish a prima facie case of Title VII discrimination based on pay discrimination Morris must show "(1) 'that [she] was a member of a protected class'; (2) 'that [she] was paid less than a non-member'; and (3) 'that [her] circumstances are '"nearly identical" to those of the better-paid non-member." Mengistu v. Mississippi Valley State University, 716 Fed.Appx. 331, 334 (5th Cir. 2018) (per curiam) (quoting Taylor v. United Parcel Service, Inc., 554 F.3d 510, 522-23 (5th Cir. 2008)).

         The THHSC does not dispute that Morris has satisfied two of the three elements required to establish a prima facie case of pay discrimination based on sex and/or race, i.e., Morris belongs to two protected classes (African-American and female), and Morris was paid less than a non-member of her protected classes, i.e., Steven Lightfoot. The THHSC argues that Morris is unable to satisfy the third element of a prima facie case because

Director Pietrzyk hired two men during the same timeframe as Morris to work in the same newly-created Electronic Benefits Transfer ("EBT") unit: Rick McDougald and Steven Lightfoot . . . At the time of hire, Morris and McDougald had no previous work experience with HHSC agencies and their starting salaries were therefore established at $52, 800.00 . . . Lightfoot transferred into the EBT Unit from another HHSC agency and possessed approximately 16 years of experience with HHSC agencies. . . Lightfoot earned a salary of $63, 183.84 not because of his gender but based wholly on cumulative pay increases gained over the course of his lengthy career with HHSC . . . Morris's claim fails because she received the same starting salary as her similarly-situated male counterpart and she cannot show that any other alleged pay disparity is the result of discriminatory animus.[44]

         In support of its argument the THHSC cites the Declaration of Lisa Campos Garza, formerly known as Lisa Pietrzyk, and the deposition testimony of Ronald Mendoza. Campos Garza testified that

[i] n addition to Lena Morris, I also hired two male employees into the EBT Unit during the same timeframe, Rick McDougald and Steven Lightfoot. Rick McDougald and Lena Morris were hired at the same starting salary of $52, 800.00. Unlike Ms. Morris and Mr. McDougald, Steven Lightfoot transferred from another HHSC agency, had years of experience within HHSC agencies, and was already earning more than $52, 800.00. As a result, Steven Lightfoot was hired at an annual starting salary of $63, 138.84.[45]

         Mendoza testified that Lightfoot had prior experience as an investigator and came from the Fatality Unit at Child Protective Services, which is an HHSC agency.[46]

         Morris does not dispute that her circumstances were not nearly identical to Lightfoot's circumstances. Instead Morris argues that THHSC's stated reasons for paying Lightfoot a higher salary are pretextual because she had 17 years' experience as a state employee and had worked for the THHSC's predecessor agency, but was nevertheless paid less than Lightfoot who had a lower-ranking position. Morris also argues that the THHSC's stated reasons for the pay disparity between her and Lightfoot are pretextual because she was paid the same as McDougald who had no prior state experience, and she was paid less than the amount budgeted for her position. [47] In support of her argument, Morris cites her own declaration stating that she "was first employed by the State of Texas in 1991 with the Department of Health Services ('DHS'), which was the predecessor agency to Defendant [THHSC], "[48] and a document that the THHSC provided during discovery showing that the salary budgeted for her position was more than the salary that she was offered and paid.[49]

         The THHSC replies that Morris has acknowledged Lightfoot's investigative experience and transfer from within the THHSC, and that Morris does not dispute that Lightfoot earned more in his prior position than the THHSC paid her or McDougald.[50] The THHSC also cites Campos Garza's deposition testimony that her decision regarding Morris's pay was not based solely on budgeted salary, but on Morris's skill set.[51]

         Morris has not established her prima facie case because she has failed either to argue or to show "that [her] circumstances are 'nearly identical to those of" Lightfoot, i.e., the comparator that she identifies as a better-paid non-member of her protected classes. Mengistu, 716 Fed.Appx. at 334. There are key differences between Lightfoot and Morris that render Lightfoot an inappropriate comparison. Although Lightfoot started to work at the EBT Unit about the same time as Morris, Lightfoot was hired into a different position, i.e., the Investigator V position as opposed to the Investigator VI position that Morris held. Unlike Morris who had only worked for a predecessor of the THHSC for two brief periods of time in the 1990s, [52] Lightfoot transferred to the EBT Unit from another THHSC agency, i.e., the Fatality Unit at Child Protective Services, where he not only performed investigative work but also earned more than Morris was offered and paid by the THHSC. Moreover, the THHSC has provided evidence showing that Morris earned the same salary as McDougald, a person who like Lightfoot was outside of her two protected classes, but who unlike Lightfoot was hired into the same position at approximately the same time, and like Morris had no prior experience with the THHSC. The court concludes that Morris has failed to carry her burden of establishing a prima facie case because she has failed to present evidence capable of establishing that her circumstances are nearly identical to those of Lightfoot. See Mengistu, 716 Fed.Appx. at 334 (citing Taylor, 554 F.3d at 523). See also Herster v. Board of Supervisors of Louisiana State University, 887 F.3d 177, 185 (5th Cir. 2018). See also Ryburn v. Potter, 155 Fed.Appx. 102, 109 (5th Cir. 2005) (per curiam) (recognizing that relevant differences in mail processing experience demonstrated that the plaintiff was not similarly situated to employees who had more experience).

         Even assuming that Lightfoot is an appropriate comparator, Morris has failed to rebut the THHSC s nondiscriminatory explanations for their disparity in pay, i.e., Lightfoot's prior investigative experience working for the Fatality Unit at Child Protective Services, another THHSC agency, where he earned more than the amount that Morris was offered and paid.[53] Because these are legitimate, nondiscriminatory reasons for the pay disparity about which Morris complains, Morris bears the burden of showing that the THHSC s reasons for paying Lightfoot more than her were merely pretexts for race and/or gender discrimination. Morris has failed to carry her burden because she does not dispute that Lightfoot had prior investigative experience with a THHSC agency which she did not have, or that Lightfoot was paid more at his prior position than she was paid by the THHSC. Morris's evidence that she had more state experience than McDougald and that she was not paid the full amount budgeted for her position is not evidence from which a reasonable fact-finder could conclude that the THHSC's stated reasons for paying Lightfoot more than her were false, unworthy of credence, or motivated by animus for her race and/or her gender.

         (b) The THHSC is Entitled to Summary Judgment on Morris's Title VII Retaliation Claim.

         The THHSC argues that Morris cannot prove that it retaliated against her for complaining about discrimination by terminating her employment because Morris cannot establish a prima facie case and cannot cite facts capable of establishing that its legitimate, non-discriminatory reasons for terminating her employment were pretexts for retaliation.[54] Morris ...

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