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Wojcik v. Memorial Hermann Health System

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

October 3, 2019

IRENA WOJCIK, Plaintiff,



         Pending before the court is defendant Memorial Hermann Health System's (“Memorial Hermann”) motion for summary judgment (Dkt. 36), plaintiff Irena Wojcik's response (Dkt. 41), and Memorial Hermann's reply (Dkt. 44).[1] Having considering the pleadings, the evidentiary record, and the applicable law, the court finds that Memorial Hermann's motion for summary judgment should be GRANTED.

         I. BACKGROUND

         This is an age discrimination and retaliation case brought pursuant to the federal Age Discrimination in Employment Act of 1967 (“ADEA”), and chapter 21 of the Texas Labor Code (“chapter 21”), popularly known as the Texas Commission on Human Rights Act (“TCHRA”).[2]Wojcik was employed by Memorial Hermann as a physical therapy assistant from December 2009 until June 2017, when her position was eliminated as part of a reduction-in-force (“RIF”). Dkt. 36 at 4; Dkt. 41 ¶¶ 1, 5. Wojcik claims that this RIF was merely pretext and that she was actually terminated as the result of age discrimination and retaliation for opposing that age discrimination.

         From December 2009 to June 2015, Wojcik worked at Memorial Hermann's Beechnut Clinic. Dkt. 36 at 4; Dkt. 41 ¶ 2. In July 2015, Wojcik transferred to the Bellaire Clinic, where the alleged age discrimination occurred. Dkt. 36 at 4; Dkt. 41 ¶ 2. At the Bellaire Clinic, Wojcik worked under the supervision of Tamara “Nikki” Shelton, the Clinic Manager. Dkt. 36 at 9; Dkt. 41 ¶ 2. Shelton reported to Tim Couture, her Regional Director. Dkt. 36 at 4. Supervising the Bellaire Clinic was Shelton's first management job and Wojcik was her oldest employee. Dkt. 41 ¶ 3. During this time, Wojcik claims that she was “subjected to repeated acts of age discrimination” by Shelton. Id. For example, Wojcik claims that Shelton “would state that the ‘dynamic of the clinic needs young people'” and “promoted youthful teambuilding events like a Christmas party featuring an American Ninja Warrior event.” Id. Shelton once referred to Wojcik as a “grandma” when asking Wojcik to watch Shelton's son. Dkt. 41-7 at 727. And Shelton once told a patient of Wojcik's to get her green tea“because it's good for older people.”[3] Dkt. 41-6 at 718. Wojcik claims these events made her feel like “an outcast, ” and in May 2017, Wojcik claims to have brought her concerns to Shelton's attention. Id.

         In Summer 2017, Tim Couture was informed that he needed to reduce the number of employees as part of a RIF. Dkt. 36 at 6; see also Dkt. 41 ¶ 4. Wojcik's position was one of the eight that he eliminated. Dkt. 36 at 7. Couture initially considered transferring Wojcik to another location-the Town & Country Clinic. Dkt. 36 at 7-8; see also Dkt. 41 ¶ 4. However, Couture ultimately decided against transferring Wojcik after discussing it with Greg Dodson, the Town & Country Clinic Manager, and concluding that it would be better to hire another physical therapist instead of another PTA in order to meet the clinic's requirements to see new patients within 48 hours. Dkt. 36 at 8. On June 26, 2017, Wojcik was formally notified that her position would be terminated effective July 7, 2017. Dkt. 36 at 8-9. On July 5, 2017, Wojcik submitted a complaint to Memorial Hermann's Compliance Helpline, “indicating that she believed Dr. Shelton was terminating her employment because of her age.” Dkt. 36 at 9; see also Dkt. 41 ¶ 6. This lawsuit follows.


         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “If [the movant's] burden is carried, then the nonmoving party must establish the existence of evidence creating an issue of fact that can be properly characterized as outcome-determinative.” Hanchey v. Energas Co., 925 F.2d 96, 97 (5th Cir. 1990) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1195-96 (5th Cir. 1986)). Evidence is viewed in the non-movant's favor. Jackson, 602 F.3d at 377 (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)). However, “[l]egal conclusions and general allegations do not satisfy this burden.” Hanchey, 925 F.2d at 97 (citing Fontenot, 780 F.2d at 1195-96).

         III. ANALYSIS

         A. Chapter 21

         Memorial Hermann argues that this court lacks jurisdiction to hear Wojcik's chapter 21 claims because she failed to wait 180 days before filing suit. Dkt. 36 at 10-12. Memorial Hermann grounds its arguments in Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483 (Tex. 1991), overruled by In re USAA, 307 S.W.3d 299 (Tex. 2010). Wojcik counters that (1) chapter 21's exhaustion requirement is not jurisdictional, and (2) because the ADEA only requires a plaintiff to wait 60 days before filing suit-which Wojick did-and because chapter 21 is meant to “correlate state law with federal law, ” this court has jurisdiction to hear Wojcik's claims. Dkt. 41 at 9-10 (quoting M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)). Both sides' arguments miss the mark.

         Wojcik is correct that the requirement is not jurisdictional, although she identifies inapposite law in support of her argument. The relevant law is the Fifth Circuit's opinion in Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165 (5th Cir. 2014). In Gorman-and against the backdrop of the the Texas Supreme Court's opinion in USAA-the Fifth Circuit confronted the question of whether it had jurisdiction to hear plaintiff's chapter 21 claims where plaintiff failed to exhaust her administrative remedies through either receipt of a right to sue letter, or waiting 180 days without resolution by the Texas Workforce Commission (“TWC”). Gorman, 753 F.3d at 169. The court found that:

Although not explicit, USAA also overturned Schroeder's holding that the TCHRA right to sue letter requirement is jurisdictional. Two reasons lead us to this conclusion. First, the TCHRA's exhaustion of remedies requirement is not expressly required by the statute but is inferred by the courts from the statute's structure. See Schroeder, 813 S.W.2d at 487. Consequently, the “clear legislative intent” that USAA held was necessary to render a provision jurisdictional is lacking. USAA, 307 S.W.3d at 306. If the TCHRA's exhaustion of remedies requirement is not jurisdictional, neither is the right to sue requirement, which is part of the exhaustion requirement.

Id. at 169-70. Following Gorman's logic, if the right to sue requirement is not jurisdictional, neither is the requirement to wait 180 days, which is also part of the exhaustion requirement. Accordingly, the court has ...

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