United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge.
before the court is a motion for summary judgment filed by
defendant Nan Ya Plastics Corporation, U.S.A. (“Nan
Ya”). Dkt. 17. After reviewing the motion, response,
reply, record evidence, and the applicable law, the court is
of the opinion that the motion for summary judgment should be
claim relates to alleged sexual harassment and retaliation.
The plaintiff, Jennifer Fillmore, worked in Nan Ya's
human resources department as a personnel assistant from
August 2016 through June 2017. Dkts. 17, 18. John Iturburo
was her supervisor until his employment was terminated on
June 28, 2017, for unprofessional conduct. Dkts. 17, 18; Dkt.
17, Ex. 17. Sybil Inman was the Personnel Administrator
before Iturburo, but she retired from that position around
June of 2016. Dkt. 18, App. 0133 at 33-34. However, she
continued to work part-time to aid in the transition.
Id. W.T. Lin was the plant manager, and Iturburo
reported to him. Dkt. 18 & App. 225 at 24. Eric Stevenson
was the Human Resources Manager at Formosa Plastics, which
was a company that acted as a consultant to Nan Ya on human
resources issues. Dkt. 18 & App. 221-222 (Stevenson
2017, Fillmore reported to Formosa that she was being
sexually harassed by her supervisor, Iturburo. Dkt. 17, Ex.
15. Stevenson investigated the report, and Iturburo's
employment was terminated less than ten days after the
report. Dkt. 17. Fillmore's employment was terminated on
July 24, 2017. Dkts. 17, 18. On approximately July 28, 2017,
Fillmore filed a charge of discrimination with the Texas
Workforce Commission-Civil Rights Division and the Equal
Employment Opportunity Commission (“EEOC”). Dkt.
1. She received a right-to-sue letter from the EEOC on
February 7, 2018. Id. On April 3, 2018, Fillmore
filed this complaint against Nan Ya for violating the Texas
Commission on Human Rights Act (Texas Labor Code Ann.
§§ 21.011 et seq.) and Title VII of the
Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et
seq.), alleging sexual harassment in the workplace and
The Alleged Harassment
Fillmore Contends That Iturburo Sexually
contends that Iturburo subjected her and other women who
worked at the plant to sexual harassment. Dkt. 18. She points
to may different instances of harassment and even assault,
contending, for example, that Iturburo said things like that
he wanted to f*** her and that he wished he could be her cell
phone in her back pocket, and that he did things like grab
her vagina, breasts, and buttocks. Dkt. 18 (citing
Fillmore's deposition). These are just a few of many
examples that Fillmore discussed during her deposition.
Fillmore Claims Other Employees Were Subject to or Observed
coworker Salinas testified that Iturburo told her, in more
graphic terminology, that “he wanted to stick his face
in her private parts”; she also recalled Iturburo
saying inappropriate things to Fillmore. Dkt. 18, App. 259-60
(Salinas Dep.). Fillmore contends that the plant manager,
Lin, was present when Iturburo made comments in front of
employees about Iturburo's penis and that Lin would
laugh. Dkt. 18, App. 43 at 169 (Fillmore Dep.). Additionally,
on Iturburo's birthday Fillmore claims that Lin witnessed
Iturburo telling Fillmore that he did not want any of the
birthday cake, but he wanted “‘[Fillmore's]
cake, white chocolate.'” Id. at 166.
Fillmore asserts that she took the comment to be sexual in
nature because of the way Iturburo said it. Id. at
Fillmore's Issues with Another Coworker
also had some issues with her co-worker, Vinay Panchal, who
performed payroll for Nan Ya. Dkt. 18. Specifically, she
observed Panchal looking at prostitute ads on his work
computer. Id. She reported this to Inman on July 18,
2017. Id.; Dkt. 18, App. 217-18 (complaint). She had
previously had an issue with Panchal in which he slapped a
paper on her desk and began yelling at her. She contends she
reported this incident to Inman, and that Inman just told her
that in Panchal's ethnic culture they look down on women
and that Fillmore needed to “‘be respectful and
just relax.'” Id. (quoting Fillmore's
deposition). Fillmore states that after this incident she did
not feel comfortable reporting any issues she was having to
Inman. Id., Dkt. 18, App. 38-39.
The Employment Policies
assumes, for the purposes of its summary judgment motion,
that Iturburo's conduct constitutes actionable sexual
harassment. Dkt. 17. It argues, however, that it exercised
reasonable care to prevent harassment and that Fillmore
unreasonably failed to take advantage of the protective or
corrective opportunities it provided. Id.
Specifically, Nan Ya maintained multiple policies that
prohibited sexual harassment. Fillmore acknowledged receipt
of these policies when she was hired, and both Lin and
Iturburo were trained on the policies. Dkt. 17, Exs. 6, 7,
27, 29, 31.
Ya's Employee Complaint Procedure states that if an
employee believes she has been aggrieved, she should present
and discuss the grievance with her immediate supervisor. Dkt.
17, Ex. 3. It then sets forth a procedure for resolving the
complaint. Id. The document specifically states that
if the “nature of the complaint, problem or dispute
involves or has been caused by the employee's superior
and the employee has reason to believe his [or her]
supervisor may be less than impartial, then the aggrieved
employee will issue the complaint to the next level of
management as indicated in this policy.” Id.
Ya's Equal Employment Opportunity Statement and Sexual
Harassment Policies also provides procedures for complaints.
Dkt. 17, Ex. 4. Under the Sexual Harassment Policy, any
“employee who feels that he or she is experiencing
harassment on the job because of his or her sex or who feels
that he or she is experiencing sex discrimination in any
terms or conditions of employment” . . . “should
immediately report the matter directly to his or her
supervisor by filling out the Fact Finding Form . . .
.” Dkt. 17, Ex. 4. The policy specifically notes that
if the “fact involved the immediate supervisor, the
employee will report the matter directly to the local
Personnel Department.” Id. It then discusses
how the local Personnel Manager will investigate.
Id. It states that if the employee is dissatisfied
he or she “has the privilege to request that the
complaint be reviewed by [Formosa's] Personnel
also had a Business Ethics Guideline, Code of Business
Conduct. Dkt. 17, Ex. 5. The first page of this policy
provides a toll-free hotline for employees to call to report
a concern about noncompliance with Nan Ya's policies and
procedures. Id. It states that all “reports
are handled confidentially and, if you wish,
anonymously.” Id. There is an equal employment
policy and a no harassment policy incorporated into the
Business Ethics Guideline, Code of Business Conduct. See
contends that notwithstanding the formal policies, it is
obvious that the policies were not effective and the training
was “a joke.” Dkt. 18. She points out that
Iturburo was responsible for training employees about sexual
harassment during the new-hire orientation, and he would
often make racial and sexually charged jokes during these
orientations. Id. Moreover, Filmore argues that
“[d]espite numerous employees witnessing sexual
harassment or being subjected to sexual harassment, no one
reported these issues to anyone outside of Nan Ya, which is a
key indicator that Nan Ya's policy was not effective at
all.” Id. As far as reasonably reporting,
Fillmore asserts that she could not report to Iturburo, did
not trust Inman, and did not know who to report to at
Formosa. Dkt. 18.
contends that her termination was in retaliation for
complaining about sexual harassment. Dkt. 18. Nan Ya argues
that it had three legitimate nondiscriminatory reasons for
terminating Fillmore's employment. Dkt. 17. First, it
contends that in July 2017 two different employees reported
that Fillmore and her boyfriend, who as also a Nan Ya
employee, divulged Inman's salary information.
Id. & Ex. 2 at 128-32. Second, there was an
article in a local newspaper that reported that Fillmore had
been arrested for identity theft, which was a concern because
Fillmore had access to employees' personal information in
connection with her job in the personnel
department. Dkt. 17 & Ex. 2 (Inman Dep.) at
132-33, Ex. 7 (Fillmore Dep.) at 234, Ex. 19 (newspaper
article). Third, Nan Ya discovered that Fillmore had three
felony convictions and five misdemeanor thefts that she had
not disclosed on her job application or, according to Nan Ya,
when she had been previously suspended for an undisclosed
felony theft conviction from 2008. Dkt. 17 & Ex. 7 at
46-52, Ex. 20. Nan Ya contends that after receiving this
information, Inman and Stevenson both determined that Nan Ya
could no longer employ Fillmore. Dkt. 17, Exs. 1 at 97,
116-17, Ex. 2 at 140-43.
asserts that the real reason her employment was terminated
was because she filed the complaint and that the
“incredibly suspicious timing” coupled with flaws
in Nan Ya's other reasons is evidence of pretext. Dkt.
18. She contends that she reported her previous convictions
to Inman and Iturburo in January 2017 when she was originally
suspended for not disclosing a felony conviction and that she
should not have been fired for being arrested because the
company policies state that conviction or confession of a
felony is prohibited, not being arrested for a felony.
Id. Additionally, she denies that she shared
Inman's pay information with anyone and suggests that
perhaps Panchal, who worked in payroll, disclosed it.
The Motion for Summary Judgment
has moved for summary judgment on both of Fillmore's
claims, arguing that (1) it is not liable for the alleged
sexual harassment because it can prove its affirmative
defense related to having a policy against harassment and
Fillmore unreasonably failing to take advantage of the
policy; and (2) it is not liable for retaliation because it
had three legitimate nondiscriminatory reasons for
terminating Fillmore's employment. Dkt. 17. Fillmore
argues that Nan Ya's defense fails because the policies
were ineffective and she reported the harassment as soon as
she was able to determine where to report. Dkt. 18. As far as
retaliation, Fillmore contends that each of the purported
reasons are pretext. Id.
brings her claims under both Title VII and the Texas
Commission on Human Rights Act (“TCHRA”). Dkt. 1.
[T]he law governing claims under the TCHRA and Title VII is
identical.” Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999); see City
of Waco v. Lopez, 259 S.W.3d 147, 151 n.3 (Tex. 2008)
(recognizing the Ellerth defense); Alamo Heights
Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 764 (Tex.
2018) (using the McDonnell Douglas burden- shifting
framework for a retaliation claim with ...