United States District Court, N.D. Texas, Dallas Division
TIMOTHY P. SCHELL, Plaintiff,
COMPANION DATA SERVICES, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
A. FITZWATER, SENIOR JUDGE
removed action by plaintiff Timothy P. Schell
(“Schell”) alleging claims under the Texas
Commission on Human Rights Act (“TCHRA”), Tex.
Labor Code Ann. § 21.001 et seq. (West 2015),
for age and gender discrimination, retaliation, and
harassment and hostile work environment, defendant Companion
Data Services, LLC (“CDS”) moves for summary
judgment. For the following reasons, the court grants
CDS’s motion and dismisses this action with prejudice
by judgment filed today.
was an employee of CDS-a computer programmer assigned to
“Special Projects” during the day shift-when his
employment was terminated on July 7, 2016. C D S is a
wholly-owned subsidiary of BlueCross BlueShield of South
Carolina, a company that processes Medicare and commercial
market claims. CDS hired Schell in 2007 as a contract
programmer. He was promoted to the position of
“Technical Team Lead” in 2008, and hired as a CDS
employee in 2012. He worked as a team lead throughout his
tenure with the company. In this non-management position, he
was responsible for work assignments performed by his fellow
team members. Schell was terminated on July 7, 2016, at age
62, after he reportedly made a profane comment to two members
of management while under an indefinite written warning for
violating company policies by failing to consistently
communicate and treat others in a professional and respectful
manner-a warning that itself followed a series of lesser
written warnings and coaching regarding Schell’s poor
early as February 2014, Schell was admonished in writing for
his unprofessional communications with management and other
employees. Schell’s then supervisor, Sherri Smith
(“Smith”), emailed Schell to ask why a certain
job had been submitted twice. Schell responded, “The
job was not submitted twice! It was restarted once! . . .
What are you talking about ‘The job submitted
twice[?]’ . . . The job was restarted because it
abended, now does this clear things up for you?” D.
App. 285. Smith replied that the “tone” of
Schell’s response seemed “quite severe and out of
place, ” D. App. 285, and she requested that they
discuss it further when he arrived at work.
April 2015 Schell completed a compliance training and quiz,
part of which covered fraudulent billing practices. In the
comment section of the quiz, Schell alleged that the
fraudulent billing practices procedures did not apply to
everyone because another employee, Ted Hendricks
(“Hendricks”), did not work his assigned hours,
and “furthermore never has!” D. App. 289. Carolyn
Allison (“Allison”), CDS’s compliance
officer, emailed Schell and informed him that failure to work
assigned hours was not a compliance issue, but was instead an
issue for managers to handle individually with employees. She
explained that she had spoken to management about the issue,
and she reminded Schell that any course of action taken by
management would not be reported to other employees. Schell
replied to Allison’s email, stating, “Carolyn,
Thank you for your lecture, I’ll keep this in mind next
time I see something that needs to be reported.” D.
App. 287. In response, Allison met with Schell to coach him
on his “[t]hank you for your lecture” comment.
in April 2015, Schell was accused of calling Hendricks names.
Hendricks sent an email to Smith and another manager, Mark
Bateman (“Bateman”), stating that he was
“getting sick and tired of [Schell’s] walking by
[his] office and calling [him] names.” D. App. 291.
Hendricks demanded that Schell’s behavior be stopped or
he would pursue legal action. Smith and Bateman changed
Hendricks’s and Schell’s shifts so that the two
would no longer work at the same time. Schell recorded this
incident in a record that he calls a “living document,
” where he chronicled managerial actions he perceived
to be retaliatory. Schell wrote, “Hendricks claimed I
called him a dickhead so my hours were changed[.]” P.
2015 Schell received a performance review. According to the
reviewer, he “met or exceeded expectations” in
all categories except for “Communications, ”
which evaluated, in part, an employee’s ability to
“Communicate in a courteous and professional
manner.” D. App. 296-298. In this category, he received
a rating of “Needs Improvement.” Id. at
February 18, 2016 Smith requested that team leads develop a
process to ensure that clients received certain files. Schell
responded by email the next day, stating, “Ok I know
where this is going so I suggest that you dial in and verify
them every night, I already have enough to do and I’m
going to have even more to do in the near future!” P.
App. 133. Schell stated that if others who were also
allegedly responsible for the files did not think it
“important enough to call” when there were
failures, “Too bad!” Id.
later, on February 22, 2016, CDS issued an Employee
Corrective Action Report in which it placed Shell on an
indefinite written warning for violating the corporate code
of conduct, including policy number 65205. An indefinite
written warning is issued when the “same or similar
offense should never happen again.” D. App. 309. The
policy states that employees are “to treat fellow
employees and customers with consideration and dignity,
” D. App. 266, and that violations of the policy,
including “[a]busive, harassing, demeaning, profane,
obscene or threatening behavior or language will not be
tolerated, ” id. at 267. The stated basis for
the warning was:
After receiving notification from a CDS customer that file
NDM’s had failed I instructed 4 team leads to work
together to improve this process[.] After several email
exchanges from this group Tim responded with an extremely
unprofessional email to myself and the other team leads[.]
This is not the first time Tim’s email responses or
tone of his communications with others have been
unprofessional[.] Tim has been verbally counseled by his
manager to cease this unprofessional behavior [.]
Id. at 309. The report identified the following
In accordance with policies 65003 and 65205 - Our Values/
Personal Conduct, Tim has continued to violate the corporate
code of conduct towards other employees. Tim fails to
consistently communicate and treat others in a professional
and respectful manner. This continued type of behavior will
no longer be tolerated in the department[.] Tim Schell should
follow all CDS guidelines addressing professional behavior.
He should use professional language and responses whether
verbal or written [.]
The report stated that the “[f]ailure to sustain
improvement may result in further disciplinary action up to
and including termination of employment. Management reserves
the right to escalate progressive discipline at any point in
time.” Id. This statement is consistent with
policy 65205, which warns that violations are “subject
to disciplinary action up to and including
termination.” Id. at 266.
February 23, 2016, in response to the indefinite written
warning, Schell submitted a written rebuttal along with his
“living document” of grievances to Colette Walker
(“Walker”), the Human Resources Manager. In his
email to Walker, Schell alleged that “[Smith] has a
problem with people who tell her the way it is instead of
what she wants to hear especially men[.]” P. App. 124.
He stated that “[t]here is no telling how many men she
has done this to in her career. One in particular was Frank
Mata, he said what was on his mind also and then he was
pushed and baited into finally saying something he could be
fired for!” Id. He also reported that Smith
increased the night shift’s work load instead of making
another male employee do his job.
one month later, on April 26, 2016, Schell allegedly said,
“Whatever, ” to a superior during a conference
call. D. App. 224. Schell’s new supervisor, Liza Miller
(“Miller”), emailed Schell and inquired about the
response. Schell replied, “If I said
‘whatever’ it was not to [the superior’s]
direction! I must have been joking . . . Is this the kind of
thing you’re worried about? How about the fact that we
actually made [our goals] because the [n]ight team and I did
exactly what was needed[?]” Id. at 319. In
response, Miller coached Schell to be more cautious on these
calls in the future, and she documented the encounter as
Schell’s first offense in violation of the written
received another performance review on June 16, 2016. This
review stated that he met or exceeded all expectations except
for “Leadership Leading Teams Developing the Team and
Its Culture, ” “Communications, ” and
“Working with Others.” Id. at 322, 324.
Schell received “Needs Improvement” ratings in
these three areas. Id. On June 20, 2016 Schell was
transferred from the night shift to the day shift because
Miller allegedly needed Schell to do a specific programming
job. Prior to his transfer, Schell led one part of the night
team, and a younger female, Olga Schiller
(“Schiller”), led the other. When Schell was
transferred to the day shift, Schiller became the sole lead
for the night team. Although Schell’s title remained
the same, he no longer had employees reporting to him.
According to Shell, he was demoted and replaced by the
younger female who assumed his part of the night shift
responsibilities. Schell complained to Miller that he had
been demoted because of his age and gender.
1, 2016 a manager-level employee, Ernie Ebersole
(“Ebersole”), emailed Walker about an incident
with Schell. Ebersole stated that, while he and Patrick
Steele (“Steele”), a director, were walking past
Schell’s cubicle, Ebersole’s sleeve got caught on
a name plate on the cubicle wall. Ebersole reported that he
and Steele laughed and joked about needing
“[w]orkman’s comp” for the incident. P.
App. 120. As they were laughing, Ebersole heard Schell say,
“‘A**holes, ’ apparently in response to
[Steele] & [Ebersole].” Id. Steele also
emailed Walker and recounted similar facts. Steele stated
that they “did not realize that Tim Schell was working
days and as [they] walked by, [Schell] said, ‘[S]hut
the XXXX up . . . A**holes.” P. App. 121 (capital Xs
and ellipsis in original). Miller asked Schell if he had made
the alleged comments, and Schell, after asking who reported
the comments, said he did not recall making them.
terminated Schell’s employment five days later for
“continued violation of corporate policies #6205 and
#65002.” D. App. 331. In her deposition, CDS’s
corporate representative, Brenetta Richards
(“Richards”), stated that Schell was fired for
“inappropriate communications” and
“violation[s] of our corporate policies, [which] he had
a history of doing[.]” Id. at 222. She
testified that there was no other reason for which Schell was
fired. Richards explained that management appeared “to
have taken a lot of time in coaching him . . . [but] Mr.
Schell did not modify his behaviors.” Id. at
day that Schell was terminated, Miller went to gather
Schell’s belongings. Miller opened Schell’s brief
case and found a 45-caliber pistol inside. Schell had not
given permission to Miller to open his brief case, and he
alleges that he had forgotten that the gun was inside the
brief case before walking into work.
brings claims against CDS under the TCHRA for age and gender
discrimination, retaliation, and harassment and hostile work
environment. CDS asserts an “after-acquired
evidence” defense based on the discovery of the
45-caliber pistol. CDS moves for summary judgment,
Schell opposes the motion.
party moves for summary judgment on claims on which the
opposing party will bear the burden of proof at trial, the
moving party can meet its summary judgment obligation by
pointing the court to the absence of admissible evidence to
support the nonmovant’s claims. See Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986). Once the moving
party does so, the nonmovant must go beyond his pleadings and
designate specific facts showing there is a genuine issue for
trial. See Id . at 324; Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam). An issue is genuine if the evidence is such that a
reasonable jury could return a verdict in the
nonmovant’s favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The nonmovant’s
failure to produce proof as to any essential element of a
claim renders all other facts immaterial. See TruGreen
Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D.
Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory if
the nonmovant fails to meet this burden. Little, 37
F.3d at 1076; Barnard v. L-3 Commc’ns Integrated
Sys. L.P., 2017 WL 3726764, at *3 (N.D. Tex. Aug. 30,
2017) (Fitzwater, J.).
turning to Schell’s individual claims, the court
considers his failure to file a properly-compiled appendix
and to cite the appendix in the manner required by
Fed.R.Civ.P. 56(c)(1)(A) and this court’s local summary
Tex. Civ. R. 56.6(a) provides that summary judgment materials
must be included in an appendix. Rule 56.6(b)(3) requires
that “[e]ach page of the appendix must be numbered
legibly in the lower, right-hand corner. The first page must
be numbered as ‘1, ’ and succeeding pages must be
numbered sequentially through the last page of the entire
appendix.” Although Schell has filed a document
entitled “Appendix in Support of Plaintiff’s
Response in Opposition to Defendant’s Motion for
Summary Judgment and Brief in Support, ” the document
is essentially a set of cover pages that describe 12 separate
exhibits filed contemporaneously. These exhibits are listed
and described sequentially in the cover pages, but they are
not filed and numbered sequentially, as necessary to comply
with the pagination requirement of Rule 56.6(b)(3). For
example, ECF 27-2 is Exhibit 5, and ECF 27-3 is Exhibit 11.
these were the only defects in Schell’s response, the
court would overlook them. While undesirable and somewhat
burdensome, they do not ultimately interfere with the
court’s decisional process. But Schell has also failed
to comply with Rule 56.5(c), which provides that
“[w]hen citing materials in the record, as required by
Fed.R.Civ.P. 56(c)(1)(A) or (B), a party must support each
assertion by citing each relevant page of its own or the
opposing party’s appendix.” Schell’s
response brief does not cite each relevant page of his
appendix, except, perhaps, where the exhibit consists of only
a single page. Instead, it cites generally to the exhibits
that comprise the appendix, occasionally citing a deposition
by its page and line numbers. See, e.g., P. Br. 2-3.
briefing defects are material to the court’s
summary judgment decision and will not be overlooked. Rule 56
“saddles the non-movant with the duty to
‘designate’ the specific facts in the record that
create genuine issues precluding summary judgment, and does
not impose upon the district court a duty to survey the
entire record in search of evidence to support a
non-movant’s opposition.” Arrieta v. Yellow
Transp., Inc., 2008 WL 5220569, at *2 n.3 (N.D. Tex.
Dec. 12, 2008) (Fitzwater, C.J.) (quoting Jones v.
Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th
Cir. 1996)), aff’d sub nom., Hernandez v.
Yellow Transp., Inc., 670 F.3d 644 (5th Cir. 2012).
“[T]he court is not obligated to comb the record in
search of evidence that will permit a nonmovant to survive
summary judgment.” Id. (citing Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006)). “Rule 56 does not impose upon the district
court . . . a duty to sift through the record in search of
evidence to support a party’s opposition to summary
judgment.” Evanston Ins. Co. v. Consol. Salvage,
Inc., 2018 WL 5980496, at *2 (N.D. Tex. Nov. 14, 2018)
(Fitzwater, J.) (alteration in original) (quoting Willis
v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014)).
“The court is not obligated to consider evidence that
the nonmovant fails to cite when opposing the summary
judgment motion.” Id. (citing Rule 56(c)(3)
(“The court need consider only the cited materials, but
it may consider other materials in the record.”)).
the court holds that Schell has failed to raise a genuine
issue of material fact in those instances where he has not
adequately cited the summary judgment record.
court turns first to Schell’s claims for age and gender
discrimination. Schell alleges that CDS terminated his