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Fillmore v. Nan Ya Plastics Corp. U.S.A.

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

September 17, 2019

Jennifer Fillmore, Plaintiff,
Nan Ya Plastics Corporation, U.S.A., Defendant.


          Gray H. Miller Senior United States District Judge.

         Pending 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 GRANTED.

         I. Background

         This 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 Dep.).

         In June 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 retaliation. Id.

         A. The Alleged Harassment

         1. Fillmore Contends That Iturburo Sexually Harrassment.

         Fillmore 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. See id.

         2. Fillmore Claims Other Employees Were Subject to or Observed This Behavior

         Fillmore's 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 167.

         3. Fillmore's Issues with Another Coworker

         Fillmore 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.

         B. The Employment Policies

         Nan Ya 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.

         Nan 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.

         Nan 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 Director.” Id.

         Nan Ya 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 id.

         Filmore 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.

         C. Fillmore's Termination

         Fillmore 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.[1] 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.

         Fillmore 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. Id.

         D. The Motion for Summary Judgment

         Nan Ya 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.

         II. Legal Standards

         Fillmore 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 ...

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