Guerrero v. FedEx Freight, Inc.

JOHN GUERRERO, Plaintiff, v. FEDEX FREIGHT, INC., Defendant.

CIVIL ACTION H-12-3062

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Signed: October 8, 2013

MEMORANDUM OPINION & ORDER

Pending before the court is defendant FedEx Freight, Inc.'s ("FedEx") motion for summary judgment. Dkt. 28. Upon consideration of the motion, response, reply, summary judgment record, and applicable law, the court finds that the motion should be GRANTED.

I. BACKGROUND

On June 22, 2012, plaintiff filed suit against FedEx alleging various claims of employment discrimination and retaliation under the Texas Labor Code. Dkt. 1, Ex. 4. Specifically, in his Original Petition, plaintiff claimed Fedex discriminated against him based on his national origin, race, disability, and age "by undermining his decisions, limiting his decision making duties and disparate impact." Id. at 5. He further asserted claims for retaliation and wrongful termination based on "his refusal to lie and commit fraud, his opposition to discrimination and retaliation by his employer and his own complaints and EEOC charge." Id.

Plaintiff was hired by American Freightways, Inc.¹ in November 1999 in San Antonio, Texas. Id. at 2. Plaintiff was promoted in June 2009 to Operations Manager and was transferred to the Houston, Texas terminal. Id. Fedex contends plaintiff began experiencing difficulty adjusting tothe additional supervisory authority associated with the Operations Manager role. Dkt. 28 at 2. The first documented instance of a complaint in plaintiff's personnel file occurred in October 2009 when Herlinda Gonzalez filed a written complaint against plaintiff alleging he was harassing her and treating her unequally. Id. at Ex. B at 3. After an internal investigation, plaintiff was given additional training regarding respectful employee communications. Id. at 4.

In March, 2010, plaintiff alleges that the Service Center Manager, Jeff Null, conducted a meeting with all management, including Human Resources Advisor, Chris Hamrick, wherein he told the managers to make a list of all employees who had filed complaints with the Equal Employment Opportunity Commission ("EEOC"). Dkt. 31. Ex. A at 55, Ex. B at 32. He instructed managers to "target" these individuals so Fedex could "get rid of" them. Id. Plaintiff alleges he verbally told Null that he would not retaliate against the employees who filed claims with the EEOC. Id. at Ex. A at 56. On two other occasions, Null also instructed plaintiff to "target" other employees for termination. Id. at 96. Plaintiff refused to target these employees. Id.

Also in April, 2010, plaintiff claims he was involuntarily transferred to the Hobby Airport location in Houston, Texas. Id. at 58. In contrast, Fedex argues that plaintiff voluntarily requested the transfer to the Hobby facility and submitted a job interest form requesting such transfer. Dkt. 28, Ex. B at 5. Specifically, the job interest form indicated that plaintiff requested the transfer because "[d]ue to the lack of experience located in [Hobby] this would be a great opportunity for me to mentor a very young leadership core & grow as a leader. And career advancement." Id. Based on the letter offering the transfer to plaintiff, he accepted this position on May 24, 2010, although he alleges he was already involuntarily working at the Hobby facility when his supervisors forced him to fill out the transfer request. Id. at 6; Dkt. 31, Ex. A at 66. The transfer was a lateral movein terms of position and salary; however, plaintiff asserts that the Hobby facility was a less desirable location with less opportunity for bonuses. Id. at 57.

At this new location, plaintiff alleges the Service Center Manager, Kelley Williams, instructed him to "target" two associates because they had disrespected him at a meeting. Dkt. 1 at 5. Plaintiff refused. Id. In July 2010, plaintiff was issued an Improvement Plan by Williams for missing loads, researching shipment issues in an untimely manner, and failing to complete required paperwork. Dkt. 28, Ex. B at 7. Plaintiff claims Williams began retaliating against him by "establishing a false paper trail" based on plaintiff's purported failure to follow directions. Dkt. 1 at 5. In August 2010, plaintiff was written up again for failing to follow proper document control procedures and poor leadership based on his failure to properly manage the dock causing back-ups. Dkt. 28, Ex. B at 8. This Improvement Plan also noted that management had received several complaints from associates regarding difficulties dealing with plaintiff. Id.

On August 19, 2010, Fedex received complaints from three different employees regarding plaintiff making sexually-oriented comments. Id. at 9. Plaintiff denied the allegations. Id. Fedex conducted an investigation, collecting statements from complainants and witnesses. During the investigation, plaintiff sent an email to Williams indicating that he was experiencing personal stress at home, which was affecting his ability to perform his job. Id. at 10. Shortly thereafter, plaintiff went out on short-term disability leave. Dkt. 31, Ex. A at 102. Plaintiff was on disability leave for approximately six months. Id.

On December 17, 2010, while on short term disability leave, plaintiff filed a claim with the Texas Workforce Commission ("TWC") alleging acts of discrimination and retaliation by Fedex. Dkt. 28, Ex. C. Plaintiff returned to work following disability leave on February 17, 2011. Dkt. 31, Ex. A at 102. Upon his return, Henry Munguia, an associate at the Hobby facility, filed a complaintagainst plaintiff for threatening his job. Dkt. 28, Ex. A. Another associate also filed a complaint regarding plaintiff's "intimidating" style of leadership. Id. On March 30, 2011, Fedex issued plaintiff a Letter of Commitment counseling him on the complaints received regarding the sexually-oriented comments and investigation conducted before his disability leave commenced. Id. at Ex. B at 11. Plaintiff refused to sign the letter, and instead wrote that the reprimand was retaliation for his TWC charge. Id. In March and April 2011, plaintiff sent various emails to human resources managers, Rob Leach and Chris Hamrick, complaining about the discrimination and retaliation against him by Null and Williams. Id. at Ex. A. Leach visited the Hobby facility and met with plaintiff several times regarding his complaints. Dkt. 31, Ex. A at 110. Plaintiff alleges that Leach encouraged him to resign. Id.

On April 13, 2011, plaintiff was issued a Critical Letter of Commitment for his lack of improvement and continued conduct issues, including insubordination, dishonesty, and poor management. Dkt. 28, Ex. B at 12. The Letter warned that should "your performance fail to improve, you will be held accountable and will be subject to disciplinary action up to and including possible termination of your employment." Id. Fedex continued to receive complaints from certain female employees who stated plaintiff was unprofessional and made the working environment uncomfortable. Dkt. 31, Ex. A. At the conclusion of the investigation, plaintiff's superiors, including Chris Hamrick, Rob Leach, and Kelley Williams, recommended he be terminated. Dkt. 28, Ex. B at 13. Plaintiff was terminated on April 28, 2011. Id. Fedex maintains plaintiff was terminated because of his failure to improve his performance and professionalism despite multiple warnings. Id. at 1.

II. SUMMARY JUDGMENT STANDARD

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 a judgment as a matter of law." FED. R. CIV. P. 56(a); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be an absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505 (1986). An issue is "material" if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). "[A]nd a fact is genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party." Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006).

The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). Only when the moving party has discharged this initial burden does the burden shift to the non-moving party to demonstrate that there is a genuine issue of material fact. Id. at 322. If the moving party fails to meet this burden, then it is not entitled to summary judgment, and no defense to the motion is required. Id. "For any matter on which the non-movant would bear the burden of proof at trial . . . , the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995); see also Celotex, 477 U.S. at 323-25. To prevent summary judgment, "the non-moving party must come forward with 'specific facts showing that there is agenuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986) (quoting former FED. R. CIV. P. 56(e)).

III. ANALYSIS

As an initial matter, plaintiff has abandoned his claims for age, race, national origin, and disability discrimination. Dkt. 31 at 7. Instead, plaintiff "opts to proceed solely under his claims based on opposition to discrimination and retaliation. . . ." Id. Accordingly, the court will only address his retaliation claims.

Plaintiff asserts retaliation under the Texas...