LAYLA MOORE VS. BAYLOR SCOTT & WHITE HEALTH
A-18-CV-363 LY
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
June 19, 2019
ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Bеfore the Court are Defendant‘s Motion for Summary Judgment (Dkt. No. 17); Plaintiff‘s Response (Dkt. No. 22); Defendant‘s Reply (Dkt. No. 23); and Plaintiff‘s Sur-Reply (Clerk‘s Dkt. No. 27). The undersigned submits this Report and Recommendation to the United States District Court pursuant to
I. GENERAL BACKGROUND
In this lawsuit, Layla Moore alleges that Baylor Scott & White Health (“BS&W“) terminated her employment because of her race and disability in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
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 dеfeat 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
III. SUMMARY JUDGMENT EVIDENCE
The following facts are based on the summary judgment evidence, viewed in the light most favorable to Moore. Moore began her employment with BS&W on April 4, 2016, and worked as a Certified Medical Assistant. Moore worked at BS&W‘s family medicine clinic in Copperas Cove, Texas for several months before she was transferred to the Urgent Care facility in Killeen. Moore, who is African-American, testified that she suffers from severe anxiety and panic disorder. Dkt. No. 22-21 at 13-14; 25-26. Moorе‘s suit primarily arises out of a conversation she had with co-workers on or around November 5, 2016. A group of workers were discussing the upcoming presidential election and Moore mentioned that she wasn‘t voting. Dkt. No. 17-30 at 9-10. One of the co-workers, who is white, then said, “I know why you‘re not voting,” and Moore responded, “Okay. Well, why?” and the co-worker said “Oh, well, because you‘re a felon.” Id. at 10. Moore expressed that she thought that statement was inappropriate, and asked why she would say something like that, and thе other employee said, “Well, because all black people or most black people have felonies, so I know that‘s why you can‘t vote,” to which Moore responded, “Well, actually, um, I just thought I couldn‘t vote because I was a North Carolina resident.” Id. Moore stated again that she thought the statement was inappropriate, and she intended to report it to their supervisor, which led to the other employee to remark to a third employee that Moore was aсting like “she had called [Moore] a nigger.” Id.
Immediately following this conversation, Moore tried to report the event to her supervisor, Marlene Hill, but she was unable to find her. Dkt. No. 17-30 at 8. Ultimately, she reported the
Moore felt this third infraction was further retaliation, and she therefore went to the HR department and made an in-person complaint, meeting with HR representative David Shaw. She explained not only that she felt she was being harassed and retaliated against, but she also informed him she was suffering from panic attacks and anxiety as a result. Dkt. No. 22-16 at ¶ 17. Shaw stated he would pass her information on to the HR person assigned to Moore‘s workplace, and Moore inquired about whether she should go back to wоrk. Id. at ¶ 8. Shaw told her that “I‘m not trying to make you go back. I would just say to at least call them, call your supervisor and let them know that you either came to HR and you are going home, or that you just left for the day, that way it‘s not like job abandonment, and then they would have to release you from employment.” Id.2
Moore informed Hill via text message that she was going home sick, and Hill responded that she needed to know if Moore would be working December 23-24, as she was scheduled. Dkt. No. 22-2.
Later that afternoon, another supervisor, Chris Payne from the Killeen Urgent Care Clinic, texted Moore and again told her that she needed to work the next two days and that “[n]ot returning to work would be filed as voluntary resignation.” Dkt. No. 22-3. Moore responded that “I‘m sorry I‘m ill. . . . Me not coming is not just because I went to HR[,] which you all are making it seem. It is because clearly me crying having anxiety attacks and being overwhelmed with stress today to the point I was in my car hyperventilating is not good for work.” Id. Payne seemed not to take these statements at face value, and, ignoring Moore‘s statements that she was calling in sick, responded that “[t]he information that was given to me from HR is that you will need to report for your shift based on the information they currently have from you regarding the situation. If therе are additional details you need to share, please call People Place.” Id. Notwithstanding Moore‘s clear statements that she was calling in sick, on December 26, 2016, BS&W fired Moore because she had two straight days of “no show/no call.” Dkt. Nos. 22-11; 22-17. Inconsistent with what was actually said in their
On 12/22, employee abandoned job without notifying supervisor of absence nor return. Upon reaching employee, employee was instructed to return to next scheduled shifts; however, employee insubordinately refused to return to scheduled shifts and did not call nor show up for scheduled shifts on 12/23 nor 12/24.
Dkt. No. 22-17. As noted earlier, BS&W claims it was never aware of any complaints of racially charged remarks, nor was it aware that Moore suffered from any disability, much less an anxiety or panic disorder. It further contends that Moore was properly fired for not showing up to work on December 23 and 24, and not calling ahead to say she would not be there.
IV. ANALYSIS
Moore appears to allege race discrimination and retaliations claims under Tile VII, the TCHRA and
In her Complaint, Moore titles Count Three as “Discrimination and Retaliation in violation of Title VII,” but actually only alleges a retaliation claim in the body of the Complaint. Dkt. No. 1 at 6. In addition, Moore acknowledged in her deposition that she was not bringing a race discrimination claim. Dkt. No. 17-30 at 22. Moore also has failed to respond to BS&W‘s argument that it is entitled to summary judgment on her race discriminаtion claim. Given this, it appears that—to the extent Moore was ever making a race discrimination claim—she is now abandoning it. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 at n. 1 (5th Cir. 2006) (“[Plaintiff‘s] failure to pursue this claim beyond her complaint constituted abandonment.“). Summary judgment is therefore appropriate on this claim.
B. Title VII Retaliation Claim
Moore does, however, complain that BS&W retaliated against her after she complained to her supervisor and to HR about the racist comments her co-worker made to her. The burden shifting framework the Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies to retaliatiоn claims under Title VII when direct evidence of discriminatory or retaliatory intent is lacking. Long v. Eastfield Coll., 88 F.3d 300, 304-05 (5th Cir. 1996). Under this framework, the plaintiff must first establish a prima facie case of retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). “If the plaintiff makes a prima facie showing, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory or nonretaliatory reason for its employment action.” Id. at 557. If the employer articulates such a reason, “[t]he burden then shifts to the plaintiff to demonstrate that the proffered reason is a pretext for discrimination.” Id.
To establish a prima facie case of Title VII retaliation, Moore must show: (1) she engaged in a prоtected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. McCoy, 492 F.3d at 556-57.
a. Protected Activity
Under Title VII, “protected activity” means (1) opposing an unlawful employment practice, or (2) making a charge under, or testifying, assisting, or participating in, an investigation, proceeding, or hearing under Title VII. Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998). The summary judgment record shows that Moore engaged in protected activity on three separate occasions. First, there is at least a fact question as to whether Moore complained to Hill about the racist comments her co-worker had made. Though Hill denies that any such report was made, Moore has testified to the contrary. Second, Moore testified that she reported the racial comments and subsequent retaliation to the People Place hotline. Lastly, she contends she reported the same discriminatory and retaliatory behavior to HR representative David Shaw. This last report was audio recorded. Even if the first two reports were not made, there is little doubt that the last visit to HR plainly qualifies as protected activity. EEOC v. EmCare, Inc., 857 F.3d 678, 683 (5th Cir. 2017) (“making complaints to HR” is a protected activity);
Instead of arguing that the reports do not constitute protected activity, BS&W tries to skip the trial stage of this case, and simply attacks Moore‘s credibility with regard to whether she ever made these complaints. As counsel surely knows, however, it is black letter law that credibility determinations mаy not be made at the summary judgment stage. “Credibility determinations, the
b. Adverse Employment Action
Next, Moore must show she suffered an adverse employment action. The Fifth Circuit has made clear that an adverse employment action is an “ultimate emрloyment decision” like “hiring, firing, demoting, promoting, granting leave, and compensating.” Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014). “An employment action that does not affect job duties, compensation, or benefits is not an adverse employment action.” Stroy v. Gibson on behalf of Dep‘t of Veterans Affairs, 896 F.3d 693, 699 (5th Cir. 2018) (internal citations omitted). BS&W argues that Moore‘s complaints about increased workload, a negative work environment and verbal and written reprimands do not constitute adverse employment actions. While the Court agrees that such allegations without more would not constitute adverse employment аctions, BS&W ignores the fact
c. Causal Connection
Moore alleges that she has established the causal connection prong by the fact that she was terminated approximately six weeks after she made her initial complaint of race discrimination to Hill. “Close timing between an employee‘s protected activity and an adverse employment action can be a sufficient basis for a cоurt to find a causal connection required to make out a prima facie case of retaliation.” Mooney v. Lafayette Cty. Sch. Dist., 538 F. App‘x 447, 454 (5th Cir. 2013). The Fifth Circuit has held that a two or three month period between events is sufficient to establish a causal connection between the protected activity and the adverse employment action. Johnson v. Halstead, 916 F.3d 410, 421 (5th Cir. 2019) (three months); Outley v. Luke & Assocs., Inc., 840 F.3d 212, 219 (5th Cir. 2016) (two months). The six week time period between Moore‘s initial complaint and her termination is enough demonstrate a prima facie causal connection here.
2. Legitimate Nondiscriminatory Reason
With the burden shifted to it, BS&W contends it had a legitimate nondiscriminatory or nonretaliatory reason for terminating Moore. It contends that it terminated Moore because she violated the “no call/no show” policy when she failed to show up for work on December 23 and 24, 2016, or to call in sick ahead of that time. It offers evidence that BS&W had a written absentee policy that allowed termination for two consecutive days of not showing for work and not calling. Dkt. No. 17-6 at 2. If true, this qualifies as a legitimate reason for BS&W‘s action. Paris v. Sanderson Farms, Inc., 542 F. App‘x 370, 374 (5th Cir. 2013).
The burden therefore shifts back to Moore to demonstrate that BS&W‘s stаted reason for her firing is pretextual. Pretext can be demonstrated by showing that the employer‘s stated reason is false. As the Supreme Court explained almost 20 years ago, “a plaintiff‘s prima facie case, combined with sufficient evidence to find that the employer‘s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. Because the parties’ communications were in writing, and those text messages were preserved, there is a very strong record in this case—indeed, stronger than in most cases—that BS&W‘s stated reason for firing Moore was false. At a minimum, there is a fact question on the point. As noted in the factual summary above, Hill stated in her termination memo that she was firing Moore because Moore had “insubordinately refused to return to scheduled shifts and did not call nor show up for scheduled shifts on 12/23 nor 12/24.” Dkt. No. 22-17. But it could not be more clear from Moore‘s texts to both Hill and Payne on December 22, that she was informing both of them that she was suffering from severe anxiety, was “ill” and “sick” and that she was not going to be able to come to work before December 26. Dkt. Nos. 22-2 and 22-3. Further, the providers at the Freedom Medical Clinic advised her to stay home from work until December 26. Dkt. No. 22-10. Moore told both Hill and Payne that she was not claiming that the reason she had to miss work was to allow the HR department to investigate her complaint, but instead was calling in sick. This is more than enough evidence to allow a jury to conclude that BS&W‘s stated reason for firing Moore was patently false, and thus a pretext for discrimination.
1. ADA Accommodation Claim
Although Moore has failed to allege a separate failure to accommodate claim under the ADA in her Complaint or in her EEOC Complaint, she appears to be attempting to raise such a claim in her Response and Sur-Reply. See Dkt. Nos. 22 & 24. “A failure-to-accommodate claim under the ADA is distinct from a claim of disparate treatment.” Windhauser v. Bd. of Supervisors for Louisiana State Univ. & Agric. & Mech. Coll., 360 F. App‘x 562, 565 (5th Cir. 2010). A failure to accommodate claim provides a mechanism to combat workplace discriminatiоn even when the employee in question has not suffered adverse employment action. See Bridges v. Dep‘t of Soc. Servs., 254 F.3d 71, 71 (5th Cir. 2001). In this case, Moore has suffered an adverse employment action and thus her claim is “most properly brought as a discrimination-terminate action” and not a failure to accommodate action. E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 703 n. 6 (5th Cir. 2014). Because Moore has not alleged the failure to accommodate claim in her Complaint and has not moved to amend her Complaint to add such a claim, the Court need not decide whether BS&W is entitled to summary judgment on that claim. Xodus v. Wackenhut Corp., 626 F. Supp. 2d 861, 864 (N.D. Ill. 2009) (denying summary judgment motion as moot with regard to failure to accommodate claim as the claim was not included in complaint). Having said this, whether BS&W could have reasonably accommodated Moore‘s disability may still be relevant to the qualification element of Moore‘s discrimination claim.
2. ADA Discrimination Claim
Though she has not pled an accommodation claim, Moore‘s Complaint does allege a disability discrimination claim. Title II of the ADA prohibits an employer from discriminating
1. Does Moore have a disability?
Under the ADA, a plaintiff has a disability if she has “a physical or mental impairment that substantially limits one or more major life activities.”
Moore has presented sufficient evidence to create a fact issue on whether she has “a physical or mental impairment that substantially limits one or more major life activities.”
2. Is Moore qualified?
“The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
Fundamentally, “regular attendance is an essential function of most jobs,” and an employee‘s failure to return to work after medical leave might demonstrate their being physically unqualified to perform the essential functions of their position. Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998); Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 418 (5th Cir. 2017) But here, Moore only sought two-and-a-half days off to deal with her anxiety disorder. While
3. Did BS&W terminate Moore because of her disability?
Next, Moore must show that she was terminated on account of her disability. BS&W argues that Moore cannot make such a showing because Hill was unaware of Moore‘s alleged disability. Moore has presented evidence disputing this allegation and contends that she first informed Hill in September 2016 that she was being treated for an anxiety disorder. Dkt. No. 17-30 at 16-17. Moore also alleges that she informed BS&W again when she called and texted Hill and Payne on December 22, 2016, and informed them she was having an anxiety problems. This is sufficient to raise a fact issue with regard to whether BS&W was aware of Moore‘s disability.4 Accordingly, BS&W is not entitled to summary judgment with regard to Moore‘s ADA discrimination claim.
IV. RECOMMENDATION
Genuine issues of material fact exist on Moore‘s Title VII retaliation claim and her ADA discrimination claim. However, Moore has abandoned her Title VII race discrimination claim.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm‘n, 834 F.2d 419, 421 (5th Cir. 1987). A party‘s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See
SIGNED this 19th day of June, 2019.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE