Hernandez v. Empire Today, LLC

MICHELLE HERNANDEZ, Plaintiff, v. EMPIRE TODAY, LLC, Defendant.

EP-19-CV-260-DB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

November 23, 2020

MEMORANDUM OPINION AND ORDER

On this day, the Court considered Defendant Empire Today, LLC's ("Empire Today") "Motion for Summary Judgment" ("Motion") filed in the above-captioned case on September 21, 2020. ECF No. 36. Therein, Empire Today asserts that it is entitled to summary judgment on Plaintiff Michelle Hernandez's ("Hernandez") claims for: (1) sex discrimination, (2) disability discrimination, (3) retaliation, and (4) negligence. Id. at 2-3. Hernandez filed a Response on October 5, 2020. ECF No. 39. Empire Today filed a Reply on October 13, 2020. ECF No. 41. After due consideration, the Court is of the opinion that Empire Today's Motion shall be granted in part and denied in part.

BACKGROUND

In October 2016 while employed at Empire Today, Hernandez became pregnant. Orig. Pet. ¶ 8, ECF No. 2-1. Hernandez requested and received maternity leave from Empire Today. Id. ¶ 12. When Hernandez called Empire Today to schedule her return from leave, she was told she had been terminated. Id. ¶ 13. The parties dispute the cause and circumstances of Hernandez's termination. Resp. 2, ECF No. 39; Mot. 2, ECF No. 36.

On December 7, 2018, Hernandez filed an "Original Petition" in County Court at Law 6 in El Paso County, Texas, against Empire Today and her supervisor at Empire Today, Rita Rae ("Rae")¹. Orig. Pet. ¶¶ 3-4, ECF No. 2-1. Therein, Hernandez claims Empire Today discriminated against her on the basis of sex and disability in violation of § 21.051 of the Texas Labor Code². Id. ¶¶ 19, 25. Hernandez also claims that Empire Today violated § 21.055 of the Texas Labor Code by retaliating against her when she opposed the discrimination. Id. ¶ 21. Hernandez further claims that Rae assaulted her at work by threatening imminent bodily injury. Id. ¶ 17. Finally, Hernandez claims that both Empire Today and Rae were negligent in hiring, supervising, training, and retaining employees. Id. ¶ 23. Hernandez sought monetary relief and punitive damages over $1,000,000. Id. ¶¶ 26, 27.

Empire Today removed the case to this Court based on the Court's diversity of citizenship jurisdiction arguing that Rae was improperly joined. Notice of Removal 1, ECF No. 1. The Court denied Hernandez's Motion to Remand and dismissed Rae from the case, as Rae had not been served within the applicable statute of limitations period. Mot. to Remand, ECF No. 7; Mem. Op., ECF No. 14.

At the close of discovery, Empire Today filed a Motion for Summary Judgment, ECF No. 36, which the Court will grant in part and deny in part.

1. Hernandez's Factual Allegations

Hernandez characterizes her pregnancy as "high-risk." Orig. Pet. ¶ 8, ECF No. 2-1; Resp. 2, ECF No. 39. After Hernandez informed Rae of her pregnancy, Rae had a "negative reaction, telling Hernandez that she had no sympathy for her." Resp. 2, ECF No. 39. Hernandez claims Rae "began scrutinizing her work, pressured her to work overtime (which was outside of her job duties), increased her sales quota, imposed unwarranted discipline, pressured her to resign because of her pregnancy, and threatened to demote and to terminate her." Id. Hernandez also alleges that after she made a report to Human Resources, Rae threatened her with termination. Id. Hernandez adds that Empire Today "interfere[ed] with her job performance, such as by unreasonably scheduling meetings and then changing the meetings but not notifying [her] of the changes to then unfairly and untruthfully criticizing her job performance and attempting to pressure her to quit." Orig. Pet. ¶ 11, ECF No. 2-1.

Hernandez requested and received 30 days of maternity leave from Empire Today, but because of complications with the pregnancy and the child's condition, Hernandez requested additional leave. Orig. Pet. ¶ 12, ECF No. 2-1; Resp. 16, ECF No. 39; App. to Resp. ¶ 26, ECF No. 39-1. Hernandez alleges she was told she would receive the additional leave. Resp. 16, ECF No. 39; App. to Resp. ¶ 27, ECF No. 39-1. However, Hernandez contends when she called to schedule her return, she was told she had been terminated and that her additional leave had not actually been approved. Resp. 2, 16, ECF No. 39; App. to Resp. ¶¶ 28-30, ECF No. 39-1. Hernandez claims that Rae had designated Hernandez as "non-rehirable." Resp. 2, ECF No. 39; App. to Resp. ¶ 31, ECF No. 39-1. Hernandez alleges she was replaced with a non-disabled male. Orig. Pet. ¶ 15, ECF No. 2-1; Resp. 12, ECF No. 39.

2. Empire Today's Factual Allegations

Empire Today makes a general denial of Hernandez's factual allegations. Orig. Answer 2, ECF No. 2-6.

With regards to Hernandez's termination, Empire Today claims:

Hernandez began a 30-day personal leave on June 15, 2017 to have her baby but failed to return to work by the deadline. As a courtesy, Empire Today allowed Hernandez an extra 18-days of personal leave. Nevertheless, Hernandez still failed to return to work by the requested date. Accordingly, Empire Today terminated her employment due to job abandonment, effective August 2, 2017.

Mot. 2, ECF No. 36.

Empire Today adds that "Hernandez failed to substantiate the need for additional leave." Id. at 5. Empire Today also asserts that Rae was not involved in and did not have influence in the decision to terminate Hernandez. Id.

LEGAL STANDARDS

Empire Today has filed a motion for summary judgment. "The court shall grant summary judgment 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 party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . ." Fed. R. Civ. P. 56(c)(1). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

"Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex, 477 U.S. at 323). Where the burden of proof lies with the nonmoving party, the moving party may satisfy its initial burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. While the moving party "must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).

A fact is material only if it would permit "a reasonable jury . . . [to] return a verdict for the nonmoving party" and "might affect the outcome of the suit." Douglass v. United Servs. Auto. Ass'n, 65 F.3d 452, 458-59 (5th Cir. 1995), aff'd en banc, 79 F.3d 1415 (5th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986)). "If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response." Duffie, 600 F.3d at 371 (citation omitted).

"When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings." Id. The nonmovant "must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim." Id. "This burden is not satisfied with 'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by only a 'scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citations omitted). "In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party." Duffie, 600F.3d at 371 (citing Liberty Lobby, 477 U.S. at 255). However, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Liberty Lobby, 477 U.S. at 255.

ANALYSIS

Empire Today asserts that it is entitled to summary judgment on Hernandez's claims for: (1) sex discrimination, (2) disability discrimination, (3) retaliation, and (4) negligence. Mot. 2-3, ECF No. 36. The Court will examine each of Hernandez's claims in turn.

1.- Sex Discrimination: Summary Judgment Should Be Denied On Hernandez's Claim Of Hostile Work Environment And Granted On Her Claim Of Discriminatory Termination.

Hernandez makes two claims of sex discrimination in violation of section 21.051 of the Texas Labor Code³. Orig. Pet. ¶ 19, ECF No. 2-1. Hernandez claims that Empire Today discriminated against her on the basis of her sex (a) when it subjected her to a hostile work environment and (b) when it terminated her employment. Id. Summary judgment on Hernandez's hostile work environment claim should be denied because genuine disputes of material fact exist on two of the elements of the claim. However, summary judgment on Hernandez's discriminatory termination claim should be granted because Hernandez cannot make a prima facie case on the claim.

a. Hostile Work Environment: Genuine disputes of material fact exist regarding Hernandez's hostile work environment claim. Therefore, summary judgment should be denied on the claim.

Texas law recognizes that an employer may be held liable for sex discrimination under section 21.051 of the Texas Labor Code if its employees create a hostile work environment. See Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256, 261 (Tex. App.—Dallas 2...