Monsivais v. Arbitron, Inc.

44 F.Supp.3d 702

Ed MONSIVAIS, Plaintiff

v.ARBITRON, INC., Defendant.

Civil Action No. H–12–3582.

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

Signed Sept. 5, 2014.

Gregg M. Rosenberg, Tracey Dominique Lewis, Rosenburg Sprovach, Houston, TX, for Plaintiff.

Victoria M. Phipps, Littler Mendelson, P.C., Houston, TX, for Defendant.

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, removed from state court on diversity jurisdiction¹ and alleging retaliatory discharge in violation of Chapter 21 of the Texas Labor Code after Plaintiff Ed Monsivais complained that his co-worker and former fiancé, Erika Paez, was sexually harassing him, is Defendant Arbitron, Inc.'s (“Arbitron's”) motion for summary judgment (instrument # 14).

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which the nonmovant bears the burden of proof at trial; a “complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ; Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998).

If the movant meets its burden, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir.1994). “[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998).

Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713 ; Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). “ ‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....’ ” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Nor is the ‘mere scintilla of evidence’ sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.’ ” Id., quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The Fifth Circuit requires the nonmovant to submit “ ‘significant probative evidence.’ ” Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir.1982), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co–Op., 799 F.2d 194, 197 (5th Cir.1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir.1999), citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548, and Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505.

Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (“[P]leadings are not summary judgment evidence.”); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir.1994) (for the party opposing the motion for summary judgment, “only evidence—not argument, not facts in the complaint—will satisfy' the burden.”), citing Solo Serve Corp. v. Westowne Assoc., 929 F.2d 160, 164 (5th Cir.1991). The nonmovant must “go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial.” Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir.2001), citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712–13.

Applicable Law

Chapter 21, referred to as the Texas Commission on Human Rights Act (“TCHRA”), “is a comprehensive fair employment practices act and remedial scheme, modeled after Title VII of the Civil Rights Act of 1964 (Title VII) that provides the framework for employment discrimination claims in Texas.” Prairie View A & M University v. Chatha, 381 S.W.3d 500, 503 (Tex.2012).² Where the evidence of retaliation is circumstantial, the employee must establish a prima facie case under the McDonnell Douglas burden-shifting framework. Lucan v. HSS Systems, LLC, 439 S.W.3d 606, 609–10 (Tex.App.-Eastland 2014), citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; and Crutcher v. Dallas ISD, 410 S.W.3d 487, 493 (Tex.App.-Dallas 2013). Because a major purpose of the TCHRA “is to coordinate Texas law with federal antidiscrimination and retaliation laws under Title VII,” Texas courts “look to analogous federal statutes and the cases interpreting them to guide [them] when interpreting the TCHRA.” Id., citing In re United Servs. Auto Ass'n, 307 S.W.3d 299, 308 (Texas 2010), and Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001).

Initially a plaintiff must establish a prima facie case of retaliation by showing that “(1) he engaged in protected activity listed in Section 21.055 of the Texas Labor Code,³ (2) an adverse employment action occurred, and (3) a causal link exists between the filing of the claim and the adverse action.” Lucan, 439 S.W.3d at 611 ; Crutcher, 410 S.W.3d at 493, citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67–68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), and Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir.2004). Retaliation is not restricted to “ultimate employment decisions,” but includes actions which a reasonable employee would find materially adverse, i.e., “ ‘likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts, and their employers.' ” Crutcher, id., citing Burlington N., id. at 67–68, 126 S.Ct. 2405. It is an objective, fact-specific review “ ‘because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.’ ” Id., citing id. at 69, 126 S.Ct. 2405.

If the plaintiff makes a prima facie case of retaliation, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reasons for the adverse employment action. Id. at 493, citing Pineda, 360 F.3d at 487.

The burden then shifts back to the plaintiff to prove that each of the reasons provided by the employer is pretextual. Id. at 494, citing Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 466 (Tex.App.-Houston [14th Dist.] 2012, no pet.), and McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.2007). For a long time Texas required that the employee need only “show that discrimination was a motivating factor in an adverse employment decision.” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 482 (Tex.2001).⁴ SeeTexas Labor Code § 21. 125(a) (“Except as otherwise provided, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice....”) Nevertheless, in University of Texas Southwestern Medical Center v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2524, 186 L.Ed.2d 503 (2013) (5–4), the majority of the Supreme Court held that retaliation claims under Title VII require evidence of traditional but-for causation, not the lesser “motivating factor” standard of causation. In accord, Ion v. Chevron USA, Inc., 731 F.3d 379, 389–90 (5th Cir.2013) ; Little v. Technical Specialty Products LLC, No. 4:11–CV–717, 2013 WL 5755363, at *3 (E.D.Tex. Oct 23, 2013). Circumstantial evidence that a plaintiff may use to demonstrate a causal link between the protected action and the adverse employment decision retaliation includes, but is not limited to, “(1) the employer's failure to follow its usual policy and procedures in carrying out the challenged employment actions; (2) discriminatory treatment in comparison to similarly situated employees; (3) knowledge of the discrimination charge or suit by those making the adverse employment decision; (4) evidence that the stated reason for the adverse employment decision was false; and (5) the temporal proximity between the employee's conduct and discharge.”Id. at 494.

Arbitron's Motion for Summary...