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Sacchetti v. Optiv Security, Inc.

United States District Court, E.D. Texas, Sherman Division

September 27, 2019

STEVEN SACCHETTI, Plaintiff,
v.
OPTIV SECURITY, INC., Defendant.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636. On July 8, 2019, the report of the Magistrate Judge was entered (see Dkt. #66) (the “Report”) containing proposed findings of fact and recommendations that Defendant Optiv Security, Inc.’s (“Defendant”) Motion for Summary Judgment (Dkt. #30) be granted. Plaintiff Steven Sacchetti (“Plaintiff”) filed objections to the Report (the “Objections”) (Dkt. #69); Defendant filed a response to the Objections (the “Response”) (Dkt. #71). The Court, having made a de novo review of the Objections and Response, is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and the Objections are without merit as to the ultimate findings of the Magistrate Judge.

         I. BACKGROUND

         Plaintiff is a forty-five-year-old male who was employed by Defendant from July 16, 2012, through his termination on November 17, 2016. See Dkt. #30-3 at 6, 23; Dkt. #30-4 at 14. At the time of Plaintiff’s termination, he was employed in the role of Regional Director. See Dkt. #30-3 at 6, 23. Plaintiff alleges the reasons given for his termination were false and pretextual, and that Defendant discriminated against him on the basis of age and/or gender. See Dkt. #1 at 4, 15. Plaintiff further alleges Defendant retaliated against and defamed him by communicating about Plaintiff to his potential employers. See id. at 13–17.

         Plaintiff filed suit pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§2000e–2000e-5, the Age Discrimination in Employment Act (“ADEA”), 28 U.S.C. § 623 et seq., and Chapter 21 of the Texas Labor Code, asserting causes of action for age and gender discrimination, as well as retaliation. See Dkt. #1 at 15. Plaintiff further asserts a Texas common law claim for defamation. See id. at 15–17. Defendant filed the Motion for Summary Judgment (Dkt. #30), to which Plaintiff filed a response (Dkt. #34), Defendant filed a reply (Dkt. #40), and Plaintiff filed a sur-reply (Dkt. #42). On June 19, 2019, the Magistrate Judge held oral arguments regarding the Motion for Summary Judgment. See Dkt. #56. In the Report, the Magistrate Judge recommended Defendant’s Motion for Summary Judgment be granted. See Dkt. #66. Plaintiff filed the Objections (Dkt. #69), and Defendant filed the Response (Dkt. #71).

         II. DISCUSSION

         Plaintiff’s Objections reassert the same arguments already addressed by the Magistrate Judge in her Report, and Plaintiff fails to direct the Court to evidence which raises a fact question on any of his claims. Summary judgment is appropriate when, viewing the evidence and all justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Hunt v. Cromartie, 526 U.S. 541, 549 (1999). The appropriate inquiry is “whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).

         1. Age Discrimination

         Plaintiff objects to the Report’s recommendation that Plaintiff’s age discrimination claims be dismissed because Plaintiff failed to satisfy his burden to show pretext under the ADEA. See Dkt. #69 at 2. In the Report, the Magistrate Judge found Plaintiff articulated his prima facie age discrimination case and that Defendant articulated a legitimate nondiscriminatory reason for Plaintiff’s termination. See Dkt. #66 at 7–10. Plaintiff argues the Report erred in the third stage of the McDonnell Douglas analysis, by finding no question of fact on Plaintiff’s burden to show pretext. See Dkt. #69 at 2–3.

         Specifically, Plaintiff argues he has met his burden to rebut the nondiscriminatory reason for his termination by showing: (1) there was conflicting testimony regarding who decided to terminate him; (2) the reason given for his termination was “false and illogical;” (3) Defendant did not engage in progressive discipline; (4) Tina Parmer (“Parmer”), a female employee, [1] was treated “clearly more favorabl[y]” than Plaintiff; and (5) Optiv viewed Plaintiff as posing a risk. See Dkt. #69 at 2–4. None of the articulated reasons relate to Plaintiff’s age. Moreover, the Court finds no error in the Magistrate Judge’s careful analysis of the evidence submitted and the argument made at the June 19, 2019, hearing. As the Report finds, “Plaintiff put forth no evidence that any member of Defendant’s management was aware of Plaintiff’s age and/or considered Plaintiff’s age when making the decision to terminate Plaintiff’s employment, or that but-for Plaintiff’s age, Plaintiff would not have been terminated.” See Dkt. #66 at 10. Plaintiff argues, and the Court agrees, that the law “allows for circumstantial evidence to support a discrimination claim.” See Dkt. #69 at 5. However, the Court finds no error in the Report’s conclusion that Plaintiff presented no evidence that Plaintiff’s age was a factor in his termination. See Dkt. #66 at 10. Accordingly, Plaintiff’s objection is OVERRULED.

         2. Gender Discrimination

         Plaintiff argues the Report erred by finding Plaintiff failed to establish a prima facie case of gender discrimination. See Dkt. #69 at 5. Plaintiff argues that “[t]his is a case where gender discrimination can be inferred by comparing Plaintiff to someone that is ‘similarly situated’ because the claim itself stems from Optiv’s discriminatory treatment of Plaintiff in comparison to the female subordinate that lodged a sex discrimination claim against him.” Id. at 6. Plaintiff argues he should be compared to Parmer, a female employee who worked for him, although Plaintiff acknowledges that he is “not traditionally ‘similarly situated’” to Parmer. See id. Nevertheless, Plaintiff argues Parmer should be treated as a proper comparator under a flexible interpretation of the requirements for a prima facie case for gender discrimination. See id.

         The Court finds no error in the Report’s conclusion that Parmer is not a proper comparator because: (1) Plaintiff and Parmer did not report to the same supervisor (because Parmer reported to Plaintiff himself); (2) unlike Plaintiff, Parmer was not in management; and (3) Parmer was alleged to have committed different work rule violations resulting in her receipt of a performance improvement plan, rather than termination. See Dkt. #34 at 31; Dkt. #30-3 at 34, 41, 54; Dkt. #30-5 at 8. Accordingly, the Court finds no error in the Report’s conclusion that Plaintiff fails to identify a proper comparator. Thus, there is no question of fact-Plaintiff has simply failed to meet his burden to present a prima facie case of gender discrimination. This objection is OVERRULED.

         3. ...


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