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Darden v. Simplicity Financial Marketing, Inc.

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

November 18, 2019

Donna C. Darden, Plaintiff,
v.
Simplicity Financial Marketing, Inc., Defendant.

          MEMORANDUM AND ORDER

          CHRISTINA A. BRYAN UNITED STATES MAGISTRATE JUDGE.

         This Title VII case is before the court on Defendant's Motion for Summary Judgment. Dkt. 27. Having considered the parties' submissions, arguments at a hearing on the record on November 15, 2019, and the law, the court GRANTS the motion and dismisses this case with prejudice.[1]

         I. BACKGROUND

         Defendant Simplicity Financial Marketing, Inc. (SFM), formerly known as Dressander BHC, is an independent financial marketing organization that provides annuity, life, and retirement policies to financial advisors and their clients. In July of 2014 Defendant hired Plaintiff Donna Darden, an African-American female, as an Annuity Case Manager in its New Business Division located in The Woodlands, Texas. As an Annuity Case Manager, Darden worked closely with marketers employed by SFM to recruit and solicit agents, and with agents who bring SFM business from customers or carriers. Plaintiff's supervisor the entire time she was employed by Defendant was Bertha Mora. Mora's supervisor during the relevant period was Barbara Fredrickson.

         In March 2017, Frederickson decided to demote Darden to the position of “NB Assistant, ” at a reduced salary, citing poor job performance and customer complaints. In late 2017, Defendant decided to reorganize its business. Effective February 2018 Defendant laid off 21 workers, including Darden, from The Woodlands, Texas office.

         Darden filed a charge with the Equal Employment Opportunity Commission in May 2017 asserting Defendant discriminated against her by demoting her on the basis of her race, age, national origin, color, and religion. The EEOC issued a right to sue letter and Darden timely filed this lawsuit asserting she was demoted on the basis of her race in violation of Title VII and 42 U.S.C. § 1981. Defendant now moves for summary judgment on Plaintiff's claims.

         II. LEGAL STANDARDS

         A. Summary Judgment

         Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find for the nonmoving party. Hyatt v. Thomas, 843 F.3d 172, 177 (5thCir. 2016). “An issue is material if its resolution could affect the outcome of the action.” Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). The court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. R.L. Inv. Prop., LLC v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013).

         B. Title VII and 42 U.S.C. § 1981

         Darden's claims[2] are subject to the familiar McDonnell Douglas burden-shifting framework. Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 316-17 (5th Cir. 2004). Pursuant to this framework, a plaintiff relying on circumstantial evidence of discrimination must first present evidence of each element of a prima facie case. Id. at 317 (citing Patel v. Midland Mem'l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002)). To establish a prima facie case of discrimination, Plaintiff must show: (1) she was in a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside of her protected class or was otherwise treated less favorably than similarly situated employees. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001); Caldwell v. Univ. of Houston Sys., 520 Fed.Appx. 289, 293 (5th Cir. 2013).

         If Plaintiff meets this prima facie burden, a presumption of discrimination arises, shifting the burden of production to Defendant to articulate a legitimate, nondiscriminatory reason for its employment action. Id.; Hernandez v. Metro. Transit Auth. of Harris Cty., 673 Fed.Appx. 414, 417 (5th Cir. 2016). If Defendant meets its burden to articulate a legitimate reason for its action, the inference of discrimination disappears, and the burden shifts back to Plaintiff to present evidence that the employer's proffered reason is merely pretextual. Id. “In contrast to the minimal burden that a plaintiff bears when establishing his prima facie case, a plaintiff must produce ‘substantial evidence of pretext.'” Hernandez, 673 Fed.Appx. at 419 (quoting Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402-03 (5th Cir. 2001)). Plaintiff bears the ultimate burden to prove discrimination. Outley v. Luke & Assoc., Inc., 840 F.3d 212, 216 (5th Cir. 2016).

         III. ANALYSIS

         Defendant argues Plaintiff cannot meet her burden to show a prima facie case of discrimination based on her demotion because she was not replaced by, or treated differently than, a person outside of her protected class. Alternatively, Defendant argues that Plaintiff cannot show that its stated reason for her demotion, her poor job performance, is mere pretext for discrimination.

         Defendant also argues that Plaintiff cannot meet her prima facie burden or burden to show pretext on claims of discriminatory termination and retaliation. The Court does not construe Plaintiff's Original Complaint to state such claims. See Dkt. 1. But even if pleaded, Plaintiff abandoned any such claims, both by not addressing them in her summary judgment response and explicitly waiving them at the oral hearing on November 15, 2019. See Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (an issue raised in the complaint but ignored at summary judgment may be deemed waived.); Davis v. Houston Indep. Sch. Dist., Civil Action No. 4:11cv3611, 2013 WL 12311126, at *2 (S.D. Tex. Mar. 27, 2013) (when a plaintiff fails to address a claim in response to a summary judgment motion the plaintiff is deemed to have abandoned it).

         A. Plaintiff Cannot Meet her Prima Facie Burden

         Defendant argues that Plaintiff cannot meet the fourth prong of her prima facie case for discrimination, i.e., that she was replaced by a person outside of her protected class or was otherwise treated less favorably than similarly situated employees.[3] Defendant has presented the Declarations of its Vice President of Human Resources, Heather Peck, and Plaintiff's supervisor, Bertha Mora stating that Plaintiff was not replaced by any employee. Dkt. 27-3 at 7, ¶32; Dkt. 27-4 at 6, ¶17. Plaintiff has no evidence to ...


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