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Cornett v. United Airlines, Inc.

United States District Court, W.D. Texas, Austin Division

November 5, 2019





         Before the Court are Defendant United Airlines, Inc.'s Motion for Summary Judgment (Dkt. No. 29); Plaintiff's Response and Motion for Leave of Court to Amend Petition (Dkt. No. 30);[1] and Defendant's Reply (Dkt. No. 31). The District Judge referred the above-motions to the undersigned for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(B), Fed.R.Civ.P. 72, and Rule 1(d) of Appendix C of the Local Court Rules.


         This is an age discrimination case. Plaintiff Laura Cornett worked as a customer service representative for Continental Airlines, Inc. from October 1986 to October 2010. In October 2010, Continental and United Airlines, Inc. merged and United became Cornett's employer. Cornett continued to work as a customer service representative for United at Austin-Bergstrom International Airport up until she was terminated on October 18, 2016, allegedly for employee misconduct. Cornett contends that the real reason she was terminated was because of her age, as she was 64 years-old at the time of her termination.

         Based on the evidence of record, it appears Cornett initiated her complaint against United by a charge of age discrimination in a letter dated April 25, 2017, sent to the Equal Employment Opportunity Commission (“EEOC”). Dkt. No. 29-3 at 57-61. Cornett's written allegations were received by the EEOC on May 3, 2017, and Cornett's charge was perfected on May 14, 2019. Dkt. No. 29-3 at 2, 14. Pursuant to the Worksharing Agreement between the EEOC and the Texas Workforce Commission-Civil Rights Division (“TWC”), Cornett's charge was effectively dual-filed with the TWC on that date as well. Dkt. No. 29-4 at 2. See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994).

         Following its investigation of Cornett's allegations, the EEOC provided a notice of dismissal and notice of Cornett's right to sue by letter (“Notice of Right to Sue”), dated April 17, 2018. Dkt. No. 29-3 at 4-6. The Notice of Right to Sue provided that Cornett had ninety (90) days in which to file suit to pursue her claims in federal court under the federal Age Discrimination in Employment Act (“ADEA”). Id. There is no evidence of record of any similar notice of right to sue issued by the TWC. On July 12, 2018, Cornett filed suit against United and her former supervisor in state court, alleging employment discrimination in violation of Chapter 21 of the Texas Labor Code. See Cornett v. United Airlines, et al., No. D-1-GN-18-003455 (98th Dist. Ct. Travis County, Tex. July 12, 2018) (Dkt. No. 29-2 at 4). United, a foreign corporation and a citizen of Illinois, subsequently removed this case to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a), contending that the joinder of the supervisor was done solely to defeat diversity. Cornett argued he was properly joined and moved to remand to state court. See Dkt. No. 17. On February 5, 2019, this Court found Contreras was improperly joined and, accordingly, recommended the District Court dismiss Cornett's claims against Contreras and deny her Motion to Remand. Dkt. No. 22. The District Court adopted the Report and Recommendation on March 19, 2019. Dkt. No. 25.


         Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         III. ANALYSIS

         United argues that it is entitled to summary judgment because Cornett did not comply with the procedural requirements to maintain a claim for age discrimination. In short, United argues that Cornett asserted her claim exclusively under Chapter 21 of the Texas Labor Code and failed to comply with the procedural requirements of filing such a claim. Cornett argues that her petition set forth claims under both Chapter 21 and the federal Age Discrimination in Employment Act (ADEA), and contends she properly exhausted her administrative remedies and otherwise complied with the procedural requirements of each statute. In the alternative, Cornett seeks leave of court to amend her petition to include an ADEA claim. United responds that any federal claims are also time-barred and the judicial estoppel doctrine prevents Cornett from retroactively asserting them.

         A. Timeliness of Cornett's Chapter 21 claim.

         The Texas Commission on Human Rights Act (“TCHRA”), as codified in the Texas Labor Code, provides a private right of action to persons “claiming to be aggrieved by an unlawful employment practice[.]” Tex. Labor Code § 21.201. To pursue a lawsuit under this statute, a plaintiff must first have exhausted her administrative remedies. Id. Specifically, she must have filed an administrative complaint with the Equal Employment Opportunity Commission or the Texas Workforce Commission, “not later than the 180th day after the date the alleged unlawful employment practice occurred.” Tex. Labor. Code §§ 21.201(a); 21.202; see, e.g., Arroyo v. iGate Americas, Inc., 2014 WL 2091247, at *3 (W.D. Tex. Feb. 25, 2014). This time limit is “mandatory and jurisdictional.” Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991). Where a complainant fails to exhaust her administrative remedies, including failing to file a charge by the strict 180-day deadline, the claim is barred and summary judgment is appropriate. See Id. at 488; Green v. Aluminum Co. of America, 760 S.W.2d 378, ...

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