Schell v. Companion Data Services, LLC

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, SENIOR JUDGE

         In this 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^[1] 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.

         I

         Schell 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.^[2] 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 communication skills.

         As 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.

         In 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.

         Later 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. App. 127.

         In July 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 298.

         On 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.

         Days 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 required improvement:

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 [.]

         Id. 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.

         On 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.

         About 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 warning.

         Schell 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.

         On July 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.

         CDS 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 254.

         On the 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.

         Schell 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.^[3] CDS moves for summary judgment, ^[4] and Schell opposes the motion.

         II

         When a 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.).

         III

         Before 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 judgment rules.

         N.D. 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.

         If 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.

         These 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.”)).

         Accordingly, 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.

         IV

         The court turns first to Schell’s claims for age and gender discrimination. Schell alleges that CDS terminated his ...