Brown v. San Antonio Food Bank

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JACQUELYN ZEPORA BROWN, Plaintiff, v. SAN ANTONIO FOOD BANK, Defendant.

No. SA-21-CV-507-OLG (HJB)

United States District Court, W.D. Texas, San Antonio Division

April 10, 2023

Honorable Orlando L. Garcia United States District Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Henry J. Bemporad United States Magistrate Judge

This Report and Recommendation concerns the First Amended Motion for Summary Judgment filed by Defendant San Antonio Food Bank. (Docket Entry 57.) Pretrial motions in this case have been referred to the undersigned for consideration. (See Docket Entry 11.) For the reasons set out below, I recommend that Defendant's First Amended Motion for Summary Judgment (Docket Entry 57) be GRANTED, and that Plaintiff's case be DISMISSED.

I. Jurisdiction.

Plaintiff's suit presents a claim under 42 U.S.C. § 1981 and a number of state law claims. The Court has original jurisdiction over federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

II. Background.

Defendant hired Plaintiff as a part-time line chef for the Catalyst Catering department in May 2019. (Docket Entry 59-3, at 14-17.) As a condition of employment, Plaintiff was subjected to an initial drug screen, which she passed. (Docket Entry 59-3, at 20.) When she was hired, Plaintiff informed her immediate supervisors Lorraine Aguirre, Erika Borrego, and Johanna Tesch that she “suffered from a hearing impairment, had documented hearing loss, and took medication for dizziness, headaches, and vertigo.” (Docket Entry 59-1, at 3.) Plaintiff requested that they speak as loudly as possible, give her the opportunity to read lips, provide things in writing, and provide microphones or headsets to help her hear better. (Docket Entry 59-1, at 3.)

In September 2019, Plaintiff complained to Aguirre, Borrego, and Tesch that she “felt targeted because [she is] African American” when she was selected for a random drug test ordered by Tesch. (Docket Entry 59-3, at 33-34.) Shortly after, Aguirre and Borrego began cutting her work hours. (Docket Entry 59-1, at 5.) Previously, there were times when Plaintiff worked more than forty hours per week, even though Plaintiff was designated as a part-time employee. (Docket Entry 59-1, at 5; Docket Entry 59-3, at 36.) Plaintiff then complained to Tesch about Aguirre and Borrego cutting her hours. (Docket Entry 59-1, at 5.)

On December 22, 2019, Plaintiff filed a confidential discrimination complaint using Defendant's third-party “ethics” hotline. (Docket Entry 59-1, at 5-6.) Plaintiff complained that her supervisors were cutting her hours, had accused her of buying drugs, and were charging her for uniforms. (Docket Entry 59-3, at 41, 46; Docket Entry 59-3, at 74.)

Approximately two weeks later, Plaintiff suffered a workplace injury. (Docket Entry 591, at 7.) She was out of work for several days and was on “light duty” when she returned. (Docket Entry 59-1, at 7.) Also sometime in January 2020, Borrego and another chef advised Tesch that they wanted to terminate Plaintiff for attendance issues. (Docket Entry 59-3, at 86.) However, Tesch noted that they had not produced sufficient documentation to justify termination as required by Defendant's progressive discipline policy. (Docket Entry 59-3, at 86-91.)

On January 16, 2020, Plaintiff spoke to Tesch about her hearing and balance disabilities. Plaintiff advised that she repeatedly informed Aguirre and Borrego about her hearing disability and requested accommodations, but they ignored her requests. (Docket Entry 59-1, at 6.) Tesch advised that she would address Plaintiff's complaints by speaking with Aguirre and Borrego. (Docket Entry 59-1, 6; Docket Entry 59-4, at 5.) In April, Plaintiff filed another complaint with Defendant's Human Resources department regarding Aguirre's behavior towards her. (Docket Entry 59-1, at 7; Docket Entry 59-3, at 109-10, 114-15.)

On April 25, 2020, Plaintiff was informed that the Catalyst Catering division was being eliminated due to the COVID-19 pandemic. (Docket Entry 59-3, at 67-68.) At the time, the division consisted of one part-time and one full-time chef position, two temporary positions, and a business manager position. (Docket Entry 59-3, at 67.) Plaintiff was the part-time employee, Aguirre was the full-time employee, Travis Savely was the business manager, and Benito Chavez and Doiyna Reyna were the temporary employees. (Docket Entry 59-3, at 67.) Upon the closing, Borrego hired Aguirre to fill a full-time line chef position at Haven for Hope; Savely was placed in an alternate position; and Brown and the two temporary employees were laid off. (Docket Entry 59-3, at 68-69.)

After learning that Catalyst Catering was closing, Plaintiff e-mailed Tesch asking for additional hours or a transfer to Haven for Hope. (Docket Entry 59-1, at 7.) Tesch informed Plaintiff about an open position in the Summer Feeding Program. (Docket Entry 59-1, at 7.) Plaintiff applied and interviewed for the open position, but she was not hired. (Docket Entry 591, at 8; Docket Entry 59-3, at 73-74.)

On July 30, 2020, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission because of race, color, retaliation, and disability. (Docket Entry 59-3, at 107; Docket Entry 59-5, at 61-64.)

In May 2021, Plaintiff filed a pro se complaint against Defendant alleging Title VII violations based on her race, color, age, and disability. (Docket Entry 4.) After the undersigned appointed Plaintiff counsel, she filed an amended complaint alleging state law race discrimination, disability discrimination, and retaliation claims, as well as a § 1981 race-discrimination claim. (Docket Entry 24.)

Defendant moved for summary judgment on all of Plaintiff's claims on November 29, 2022. (Docket Entry 57.) Plaintiff responded in opposition (Docket Entry 59); and Defendant replied (Docket Entry 64.)

III. Legal Standards.

A. Summary Judgment.

A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 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). “A fact is material if it might affect the outcome of the suit under the governing law, while a dispute about that fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Owens v. Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (internal quotation marks omitted).

The moving party “always bears the initial responsibility of demonstrating the absence of a genuine issue of material fact.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (alterations omitted). When the movant would not bear the burden of persuasion at trial, she may satisfy her initial summary judgment burden “by pointing out that the record contains no support for the non-moving party's claim.” Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 997 (5th Cir. 2019). If the moving party satisfies her initial burden, the nonmovant “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Jones, 936 F.3d at 321.

B. The McDonnell Douglas Framework.

Where, as here, a plaintiff presents only circumstantial evidence of unlawful discrimination or retaliation, the burden-shifting framework set forth in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) guides the parties' burdens of proof.^[1]

Under the McDonnell Douglas framework, the burden of production falls first upon the plaintiff to present evidence sufficient to establish a prima facie case. Rosario v. Tex. Veterans Comm'n, 607 F.Supp.3d 711, 718 (W.D. Tex. 2022). If the plaintiff is successful, a presumption of discrimination arises, and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Id. If the employer sustains its burden of production, the presumption of discrimination created by plaintiff's prima facie case dissipates. Lohn v. Morgan Stanley DW, Inc., 652 F.Supp.2d 812, 832 (S.D. Tex. 2009).

At the final stage, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff may meet this burden by showing that the employer's reasons are pretextual. Campos v. Steves & Sons, Inc., 10 F.4th 515, 521 (5th Cir. 2021).

IV. Analysis.

Plaintiff brings claims for race discrimination, disability discrimination, and retaliation under the Texas Labor Code, as well as a race-discrimination claim under § 1981. Defendant moved for summary judgment on all of Plaintiff's claims. Each will be addressed in turn.

A. Race Discrimination.

Plaintiff's race-discrimination claims arise under the Texas Labor Code and 42 U.S.C. § 1981. Chapter 21 of the Labor Code makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, among other things. TEX. LABOR CODE §21.051. Section 1981 guarantees to all persons within the jurisdiction of the United States the “same right .. to make and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

The elements under the Texas Labor Code and § 1981 are the same. See Carter v. California Grill, LLC, 538 F.Supp.3d 714, 720 (W.D. Tex. 2021). To establish a prima facie race-discrimination claim, the plaintiff must show: (1) she is a member of a protected class; (2) s...