Opinion
Civil Action No. 3: 03-CV-3018-B.
November 30, 2004
MEMORANDUM ORDER
Before the Court is Defendant State Farm Mutual Automobile Insurance Company's Motion for Summary Judgment ("State Farm's Motion"). Because Brooks failed to exhaust her administrative remedies with respect to her claims for race discrimination, the Court GRANTS State Farm's Motion on Brooks' race discrimination claims. Also, because receiving reprimands and being placed on probation are not adverse employment actions sufficient to support a retaliation claim under Title VII, the Court GRANTS State Farm's Motion on Brooks' retaliation claims regarding employment actions other than her termination. Next, because there is a genuine issue of material fact as to whether Brooks' termination was the result of retaliation, the Court DENIES State Farm's Motion on Brooks' retaliation claim regarding her termination. Finally, because Brooks' intentional infliction of emotional distress claim is not independent of her Title VII claims, the Court GRANTS State Farm's Motion on Brooks' claim for intentional infliction of emotional distress.
I. BACKGROUND FACTS
This employment discrimination and retaliation case concerns Plaintiff Adrian Brooks' ("Brooks") employment with and termination from Defendant State Farm Mutual Automobile Insurance Company ("State Farm"). Brooks, an African-American female, was hired as a Claims Representative Trainee by State Farm in November 1998. (Brooks Dep. p. 18:24-25/Def. App. p. 2; 19:22-24/Def. App. p. 3; 21:2-7/Def. App. p. 4) She reported to Team Manager Scott Bell ("Bell"). (Brooks Dep. p. 22:14-15/Def. App. p. 5) Bell, in turn, reported to Section Manager Greg Bratcher ("Bratcher"), who reported to Division Manager Horace Satisfield ("Satisfield"). (Brooks Dep. p. 27:3-11/Def. App. p. 6) In October 1999, Bell recommended that Brooks be promoted from Trainee to Claims Representative (grade MA1). (Brooks Dep. p. 34:6-24/Def. App. p. 7; Bratcher Decl. ¶ 3/Def. App. p. 212) Bratcher agreed with Bell's recommendation, and Brooks was promoted. (Bratcher Decl. ¶ 3/Def. App. p. 212)In her March 2000 quarterly performance review, Bell documented several perceived deficiencies in Brooks' performance. (Brooks Dep. pp. 37:23-38:1/Def. App. pp. 8-9; Brooks Dep. Ex. 1/Def. App. pp. 97-114) Specifically, Bell noted that Brooks needed to improve in making prompt client contacts and file documentation. (Brooks Dep. Ex. 1/Def. App. pp. 97-114) Bell again advised Brooks that she needed to improve her file documentation in her subsequent quarterly reviews in July and September. (Brooks Dep. p. 43:9-12/Def. App. p. 14) Bell also informed Brooks that she needed to promptly respond to management direction. (Brooks Dep. p. 44:10-13/Def. App. p. 15) Management direction was given when a manager reviewed a claim representative's files and wrote directives to the claims representative. (Brooks Dep. p. 45:6-16/Def. App. p. 16) Brooks did not understand that she was supposed to take the action noted by her manager until Bell explained it to her. (Brooks Dep. 46:25-47:5/Def. App. pp. 17-18)
In October 2000, Bell rated Brooks' performance as "achieved objectives" and recommended a 3% raise in salary. (Brooks Dep. Ex. 2/Def. App. p. 115) Bratcher and Satisfield approved the rating and the raise. (Bratcher Decl. ¶ 4/Def. App. p. 212) In the salary change memorandum, Bell reminded Brooks of the need to improve her file documentation, remain proactive with respect to her files, and follow management direction. (Brooks Dep. Ex. 2/Def. App. p. 115)
In November 2000, Brooks had been employed by State Farm for two years and was eligible for promotion to Senior Claims Representative (grade MA2). (Bratcher Decl. ¶ 5/Def. App. p. 213) Brooks erroneously believed the promotion was automatic. (Brooks Dep. p. 51:10-21/Def. App. p. 21) Because of the perceived deficiencies in her performance, Bell decided not to promote her at that time, but rather wait until she had shown more consistent and sustained performance. (Bell Decl. ¶ 3/Def. App. p. 210) At that time, Bell decided he had not trained Brooks adequately and performed a thorough file review to identify additional training needs. (Brooks Dep. pp. 65:1-18/Def. App. p. 28; Bell Decl. ¶ 3/Def. App. p. 210) In December 2000, Bell gave Brooks the results of his file review. (Brooks Dep. Ex. 4/Def. App. pp. 116-18) According to the review, Brooks still had issues with prompt client contact, documentation, and timely following management direction. ( Id.) Bell gave Brooks a ten-point action plan to help her improve and scheduled a progress review in 30 days. (Brooks Dep. p. 78:1-5/Def. App. p. 38; Brooks Dep. Ex. 4/ Def. App. pp. 116-18) Bell also arranged for Brooks to sit with Kem Lightner, an experienced African-American claims representative, to provide guidance and training tips. (Brooks Dep. p. 79:5-9/Def. App. p. 39; 85:1-8/Def. App. p. 42) Bell reviewed Brooks' progress on January 25, 2001, and praised Brooks' efforts. (Brooks Dep. Ex. 6/Def. App. pp. 121-22)
On February 13, 2001, Bell covered Brooks' desk while Brooks was in a Continuing Education class. (Brooks Dep. Ex. 7/Def. App. p. 123; Brooks Dep. p. 88:6-10/Def. App. p. 45) While there, he discovered numerous documents that Brooks admitted should have been in the claims files. (Brooks Dep. Ex. 8/Def. App. pp. 124-25; Brooks Dep. pp. 88:18-89:6/Def. App. pp. 45-46) Bell informed Brooks that such behavior was unacceptable and had to stop. (Brooks Dep. p. 90:9-11/Def. App. p. 47) In March 2001, Brooks sought advice from Michael Byars ("Byars"), an African-American Team Manager in State Farm's Arlington office. (Brooks Dep. pp. 93:23-94:13/Def. App. pp. 48-49) On March 8, 2001, Byars and Bell met with Brooks to discuss her performance. They explained Brooks' performance issues to her, placed her on probation, and gave her an 8-point action plan to help her improve. (Brooks Dep. Ex. 10/Def. App. pp. 126-28) When Brooks objected to the plan and requested more specificity in their instructions, Bell gave Brooks a detailed explanation of management's expectations. (Brooks Dep. pp. 98:23-99:17/Def. App. pp. 51-52; Brooks Dep. Ex. 11/Def. App. p. 129)
On March 12, 2001, Brooks filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") regarding State Farm's decision not to promote her to Senior Claims Representative and placing her on probation. (Brooks Dep. Ex. 23/ Def. App. p. 169) State Farm investigated the charges and found that several African-Americans had been promoted by Bell and that several Caucasians had their promotions deferred for performance reasons. (Brooks Dep. p. 251:2-7/Def. App. p. 90; Bratcher Decl. ¶ 7/Def. App. p. 213) State Farm did find evidence that Julie Moore ("Moore"), a Caucasian employee, had attendance problems. (Byars Decl. ¶ 8/Def. App. p. 217) Moore was placed on formal written disciplinary action, but the record is unclear if this occurred before or after State Farm's investigation. ( Id.)
Because of Brooks' performance issues, Bell recommended she receive an annual performance evaluation of "needs improvement" and a 1% raise. (Bell Decl. ¶ 4/Def. App. p. 210) Satisfield, however, determined that Brooks' performance was unacceptable and gave her no raise. (Bratcher Decl. ¶ 6/Def. App. p. 213) By April 20, 2001, Bell decided Brooks had shown consistent improvement and removed her from probation. (Brooks Dep. Ex. 12/ Def. App. p. 130) In June 2001, Bell recommended that Brooks be promoted to Senior Claims Representative. (Bell Decl. ¶ 5/Def. App. p. 211) Bratcher and Satisfield agreed, and Brooks was promoted on July 7, 2001 and given an 8% raise. (Bratcher Decl. ¶ 8/Def. App. p. 213) Brooks voluntarily withdrew her EEOC charge in August 2001. (Brooks Dep. p. 205:12-14/Def. App. p. 84; Bratcher Decl. Ex. 1/Def. App. p. 215)
Bell continued to review Brooks' files after her promotion and was satisfied with her performance for a number of months. (Brooks Dep. pp. 108:22-109:6/Def. App. pp. 56-57) In December 2001, though, Bell informed Brooks that she was slipping back into the same problems previously addressed; Brooks, however, disagreed with Bell's assessment of her performance. (Brooks Dep. p. 109:2-21/Def. App. p. 57; 110:11-24/Def. App. p. 58)
In early 2002, Bell transferred to another department at State Farm, and Byars took over Brooks' supervision. Before he left, Bell raised his concerns about Brooks' performance with Bratcher. (Bell Decl. ¶ 6/Def. App. p. 211) Because Brooks had previously complained that Bell's evaluation of her performance was discriminatory, Bratcher instructed Byars to perform a blind review of the files reviewed by Bell. (Bratcher Decl. ¶ 9/Def. App. pp. 213-14) Bratcher did not inform Byars of Bell's issues with Brooks' performance or of Brooks' previous complaint of discrimination. ( Id.) Byars' review identified the same performance deficiencies that Bell's had; however, Brooks still disagreed with this assessment. (Byars Dep. p. 35:9-12/Def. App. p. 183; Brooks Dep. pp. 117:11-118:13/Def. App. pp. 61-62; Bratcher Decl. ¶ 9/Def. App. pp. 213-14)
Byars, Bell, Bratcher, and Satisfield decided Brooks needed to be placed on a performance improvement plan. (Bratcher Decl. ¶ 9/ Def. App. pp. 213-14) On January 31, 2002, Byars and Bell again placed Brooks on probation. (Brooks Dep. p. 123:19-22/Def. App. p. 65) Brooks refused to sign the performance memorandum and wrote a rebuttal and a letter to Human Resources stating her belief that she was being harassed and retaliated against. (Brooks Dep. Ex. 15/Def. App. pp. 142-48; Ex. 16/Def. App. pp. 149-56) As a result, Bratcher directed Byars to perform file reviews on Julie Moore and Amy Trione, individuals identified by Brooks as receiving more favorable treatment. (Bratcher Decl. ¶ 10/Def. App. p. 214) Both Bratcher and Byars reviewed the files and found that neither had performance issues believed to be as severe as Brooks', but Moore did have file documentation problems. ( Id.) Moore was then placed on a written performance improvement memorandum. (Bratcher Decl. ¶ 10/Def. App. p. 214)
As her new Team Manager, Byars offered to provide additional training for Brooks, and Brooks said he was responsive when she asked for help. (Brooks Dep. p. 159:18-23/Def. App. p. 73; 160:19-21/Def. App. p. 74) By March 13, 2002, however, Byars determined that Brooks was not improving her performance and recommended to Bratcher that her employment be terminated. (Byars Decl. ¶ 4/Def. App. p. 216-17) Bratcher disagreed with the recommendation and instructed Byars to keep working with Brooks. (Byars Dep. p. 102:9-17/Def. App. p. 203) On March 18, 2002, Byars met with Brooks to deliver a 45-day job performance update. (Brooks Dep. Ex. 21/Def. App. pp. 157-61) Brooks refused to sign the performance memorandum, stating she disagreed with her continued probation. ( Id.)
Around May 1, 2002, Byars presented the second 45-day job performance update to Brooks. (Brooks Dep. Ex. 22/Def. App. pp. 162-68) He noted that Brooks' performance had deteriorated further and that she was refusing to follow management direction. ( Id.) Byars again recommended to Bratcher that Brooks be terminated. (Byars Decl. ¶ 7/Def. App. p. 217) Bratcher took the recommendation to Phil Abel, the new Division Manager. (Bratcher Decl. ¶ 11/Def. App. p. 214) Abel reviewed Brooks' performance and met with Byars to determine whether Brooks had been given every opportunity to improve her performance. (Abel Decl. ¶ 3/ Def. App. p. 208) When he was satisfied that Byars had exhausted all alternatives, he determined that termination was appropriate. ( Id.) On May 23, 2002, Brooks was terminated for the stated reason of poor job performance. (Abel Decl. ¶ 4/Def. App. p. 209)
II. PROCEDURAL HISTORY
Brooks filed suit against State Farm on December 18, 2003, bringing claims of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (2003 Supp. 2004), and a claim for intentional infliction of emotional distress. State Farm answered, and the parties proceeded through discovery. State Farm filed its Motion for Summary Judgment on September 29, 2004. The parties have briefed the issues, and the Court now turns to the merits of their arguments.
III. ANALYSIS
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Provident Life Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. See Chaplin v. NationsCredit Corp., 307 F.3d 368, 371-72 (5th Cir. 2002). The Court will now address the arguments of the parties.A. Exhaustion of Administrative Remedies
State Farm first moves for summary judgment on Brooks' claims of race discrimination, arguing that Brooks failed to exhaust her administrative remedies. (Def.'s Brief pp. 16-17) Specifically, State Farm presented evidence that Brooks' June 6, 2002, EEOC Charge only complained of retaliation and did not mention racial discrimination. (Brooks Dep. Ex. 24/Def. App. p. 171) Because Brooks' claims of race discrimination were not presented to the EEOC, State Farm asserts her discrimination claims must be dismissed.
Exhaustion of administrative remedies is a prerequisite to filing a judicial complaint in a Title VII case. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). A plaintiff must file a charge of discrimination with the EEOC and receive a right to sue letter before she may bring suit in federal district court. Id. at 379. The scope of a Title VII suit is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Thomas v. Tex. Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). Thus, although, the scope of a plaintiff's right to sue is not limited to the specific language of the charge, the plaintiff is limited to claims that are "like or related to" the claims listed in the charge. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
Here, the Court must determine whether Brooks' race discrimination claim is "like or related to" her allegations of retaliation included in her EEOC Charge. The summary judgment evidence shows that Brooks' June 6, 2002, EEOC Charge did not mention racial discrimination, but focused solely on retaliation. (Brooks Dep. Ex. 24/Def. App. p. 171) Charges of race discrimination are not necessarily "like or related to" retaliation charges. See Robinson v. Rubin, 77 F. Supp. 2d 784, 792 (S.D. Tex. 1999) (dismissing race and sex discrimination claims when plaintiff's EEOC charge only mentioned retaliation); Lee v. Kroger Co., 901 F. Supp. 1218, 1224 (S.D. Tex. 1996) (dismissing race discrimination claims when plaintiff's EEOC charge only listed retaliation). Further, the evidence here demonstrates that the EEOC's investigation did not encompass any discrimination charges, as the EEOC's Determination letter only discussed retaliation. (Pl. App. pp. 182-83) Therefore, because Brooks did not exhaust her administrative remedies by bringing a race discrimination charge before the EEOC, the Court GRANTS States Farm's motion on Brooks' claims for race discrimination under Title VII.
Brooks filed an EEOC Charge complaining of race discrimination on March 12, 2001 (Pl. App. pp. 179-80); however, she withdrew that charge and there is no evidence she ever received a right-to-sue letter from the EEOC regarding her race discrimination claims. See Abraham v. Cmty. Hosp. of Mesquite, Inc., 19 F. Supp. 2d 660, 666-67 (N.D. Tex. 1997).
Brooks misconstrues State Farm's argument and urges the Court to find that retaliation charges can grow out of discrimination charges; however, the Court is presented with the converse situation here. (Pl.'s Brief pp. 13-16) While it may be logical for retaliation to occur after an employee files a charge of discrimination, it is not reasonable to expect discrimination to occur after an employee files a charge of retaliation.
B. Adverse Employment Action
In both her EEOC Charge and her Original Complaint, Brooks complains about being placed on probation and/or being reprimanded. (Pl.'s Orig. Compl. ¶ 10; Brooks Dep. Ex. 24/Def. App. p. 171) State Farm moves for summary judgment on the ground that being placed on probation and reprimanded are not adverse employment actions for which Title VII provides a remedy. (Def.'s Brief pp. 19-20)
The Fifth Circuit is clear that Title VII only addresses ultimate employment decisions, such as hiring, granting leave, discharging, promoting, and compensating. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). Thus, employment decisions that have only a tangential effect on ultimate employment decisions are not actionable under Title VII. Id. To be an ultimate employment action, the act must affect the employee's job duties, compensation, or benefits. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004).
Here, Brooks' Complaint includes allegations that State Farm's decision to place her on probation was a retaliatory act. (Pl.'s Orig. Compl. ¶ 10) However, under Fifth Circuit precedent, being placed on probation is not an ultimate employment action addressed by Title VII. Mattern, 104 F.3d at 708 (holding being placed on "final warning" was not actionable). Brooks' complaints about being reprimanded fail for the same reason. Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (holding clarifying job duties and making reprimands were not adverse employment actions); Martin v. The Kroger Co., 65 F. Supp. 2d 516, 536 (S.D. Tex. 1999) (holding that negative performance evaluations, even if undeserved, are not adverse employment actions under Title VII). Further, there is no evidence that Brooks' reprimands and probationary status resulted in a loss of compensation or benefits or an alteration of job duties. See Pegram, 361 F.3d at 282.
Because being given reprimands and being placed on probation with no resulting loss in pay or alteration in duties are not ultimate employment decisions under Title VII, the Court GRANTS State Farm's Motion on Brooks' retaliation claims for actions other than her termination.
C. Termination/Retaliation
Brooks' remaining claim under Title VII is for retaliation in relation to her termination from State Farm. State Farm moves for summary judgment on this claim, arguing that Brooks does not have sufficient evidence of retaliation. (Def.'s Brief pp. 20-22)
Retaliation claims under Title VII are governed by the three part McDonnell Douglas test. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004). First, Brooks must demonstrate the existence of a prima facie case of retaliation, which includes evidence that (1) she engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that a causal link exists between the protected activity and the adverse employment action. Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004). The Court finds that Brooks has produced evidence of each element; thus, the burden of production now shifts to State Farm to identify a legitimate, non-retaliatory reason for its decision to terminate Brooks. Davis, 383 F.3d at 319. State Farm asserts that it terminated Brooks for poor job performance and produced evidence supporting that claim. Poor job performance has been repeatedly recognized as a legitimate reason for termination. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002); see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (finding legitimate, nondiscriminatory reason based on performance issues). Therefore, the Court moves to the third step of the McDonnell Douglas test.
The third prong of the McDonnell Douglas test has arguably been altered by the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (holding that the mixed-motive theory of discrimination is available in cases with circumstantial evidence of discrimination). In addressing the impact of Desert Palace, the Fifth Circuit modified the third prong of the McDonnell Douglas test. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). Now, in order to survive summary judgment under the modified McDonnell Douglas test, Brooks must produce evidence raising a fact issue that either (1) State Farm's reason is not true, but is instead a pretext for retaliation, or (2) that State Farm's reason, while true, is only one of the reasons for its conduct and that retaliation was a motivating factor. Id.
In Rachid, the Fifth Circuit did not provide further instruction as to exactly how the evidence should be analyzed in each case. However, an examination of Rachid shows that the Fifth Circuit did not break its discussion of the plaintiff's evidence into categories of pretext and motivating factor, but instead considered all the evidence as a whole. See id. at 313-316. This is in line with Supreme Court precedent that holds that the key in a Title VII case is whether the employee's protected status "actually motivated" the employer's decision. Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141 (2000). This Court, then, will consider Brooks' evidence as a whole to determine whether a fact issue exists as to whether her termination was the result of retaliation.
First, the Court notes that Brooks did not present evidence that her files did not contain the problems her supervisors say they found. Instead, she disputes whether those issues were severe enough to warrant termination. (Brooks Dep. p. 129:15-23/ Def. App. p. 66) However, to establish retaliation, Brooks must do more than simply disagree with State Farm's decision. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (holding that merely disputing the employer's assessment of the employee's performance will not create an issue of fact as to pretext); see also Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685 (8th Cir. 2002).
The crux of Brooks' argument, however, is that other State Farm claims representatives had similar performance issues as Brooks did, yet Brooks was the only one terminated. Brooks relies primarily on e-mails sent by Phillis Booker ("Booker"), a State Farm Human Resources employee, to other individuals at State Farm. The e-mails include the following:
• March 26, 2002, e-mail from Booker to Booker's supervisor — "Looking at the file review for Julie Moore she definitely has problems that need to be addressed and at this time she is not on any form of performance management to address there issues which lends merit to Adrian's allegations that she is being treated unfairly." (Booker Dep. Ex. 7/Pl. App. pp. 27-28)
• April 26, 2002, e-mail from Booker to Bratcher and Abel — "I took a look at the performance ratings for [Byars'] employees and there were none with the exception of Adrian that reflected any inconsistencies in their competencies." (Booker Dep. Ex. 10/Pl. App. p. 33)
• April 26, 2002, e-mail from Booker to Bratcher and Abel — "[Byars'] comment about having team members with performance issues and the EPR ratings of his employees are contradictory." (Booker Dep. Ex. 10/ Pl. App. p. 33)
• April 26, 2002, e-mail from Booker to Bratcher and Abel — "Also Greg I know you mentioned that you had not met with Michael to counsel him regarding his EPR rating of Julie and how you felt Julie should have been rated based upon what you discovered in her file review, I would caution you that if Adrian's case does end up in court and Julie's performance issues are brought up you may be asked how you addressed this situation with Michael." (Booker Dep. Ex. 10/ Pl. App. p. 33)
While there may well be legitimate, non-retaliatory explanations for the comments in the e-mails, the Court in the summary judgment context must make all inferences in favor of Brooks. See Chaplin, 307 F.3d at 371-72. From that perspective, the e-mails recognize that there may be some validity to Brooks' argument that her treatment by State Farm was not consistent with the treatment of other claims representatives. Without undisputed evidence demonstrating that the other employees were not similarly situated or that similarly situated employees were also terminated, the Court must accept what is stated in the e-mails and find that there is a fact issue as to whether Brooks was treated less favorably than employees who had not filed EEOC charges of discrimination. Thus, although not fitting neatly into a pretext or motivating factor category, there is some evidence that Brooks' termination was the result of retaliation.
State Farm argues that Brooks received a raise and a promotion in the fourteen (14) months between her initial charge of discrimination and her termination, negating any inference of retaliation. (Def.'s Brief p. 20) While sufficient time and positive treatment can, in some instances, overcome allegations of retaliation, see Raggs v. Miss. Power Light Co., 278 F.3d 463, 471 (5th Cir. 2002), it does not defeat a plaintiff's claims as a matter of law, otherwise an employer could overcome any charge of retaliation by simply promoting an employee before firing her. See, e.g., Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 429 (5th Cir. 2003) (reversing grant of summary judgment for defendant even though six years passed between protected act and adverse employment action and plaintiff received positive evaluations in the meantime). Here, while the evidence that Brooks was promoted and given a raise after she filed her charge of discrimination with the EEOC militates against a finding of retaliation, in light of the other evidence, it is not conclusive.
State Farm also argues that Byars and Abel performed an independent investigation of Brooks' performance, removing any taint of retaliation. (Def.'s Brief pp. 21-22) State Farm's argument rests on the assumption that Bell and Bratcher were the only individuals capable of retaliating against Brooks. The evidence shows that Byars and Abel were aware of Brooks' prior charge of discrimination, enabling them to retaliate if they so chose. (Byars Dep. p. 19:1-9/Def. App. p. 174; 20:3-11/Def. App. p. 175; Booker Dep. Ex. 10/Pl. App. p. 33) Therefore, whether or not Byars and Abel performed an independent investigation is not conclusive, since either one of them could have chosen to retaliate against Brooks. Thus, because the e-mails by Booker demonstrate a fact issue as to whether Brooks was treated the same as other similarly situated individuals, the Court DENIES State Farm's Motion on Brooks' claim that her termination was a result of retaliation.
D. Intentional Infliction of Emotional Distress
Finally, Brooks brought a claim of intentional infliction of emotional distress against State Farm. State Farm moved for summary judgment on the claim, arguing that the Texas Supreme Court's decision in Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004), prohibits Brooks' intentional infliction claim. (Def.'s Brief pp. 22-23) In Hoffman-La Roche, the Texas Supreme Court held that "where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available." Id. at 447. There, the court struck an award of damages for intentional infliction of emotional distress when the plaintiff's claim arose directly from the incidents that made up her sexual harassment claim, stating that intentional infliction is only a gap-filler tort. Id. at 450 (holding that the plaintiff's intentional infliction claim was not independent of her sexual harassment claim).
Brooks did not provide the Court with a response to this argument. As the party responding to summary judgment, Brooks was required to identify specific evidence in the record and explain the precise manner in which the evidence supports her claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (noting the court does not have the duty to sift through the record in search of evidence to support a party's opposition to summary judgment). An examination of Brooks' Complaint, however, demonstrates that her intentional infliction claim must be dismissed.
In describing the actions taken by State Farm to cause emotional distress, Brooks lists "racial discrimination," "civil rights violations," and "retaliation for filing a prior charge of racial discrimination." (Pl.'s Orig. Compl. ¶¶ 12-14) Thus, Brooks' intentional infliction claim is clearly dependent on and grows out of her Title VII claims. Under Hoffman-La Roche, her intentional infliction claims must be dismissed. Therefore, the Court GRANTS State Farm's Motion on Brooks' claim for intentional infliction of emotional distress.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS State Farm's Motion on Brooks' race discrimination claims, her retaliation claims regarding incidents other than her termination, and her intentional infliction of emotional distress claim. The Court DENIES State Farm's Motion on Brooks' retaliation claim regarding her termination. Thus, the issue remaining for trial is whether State Farm retaliated against Brooks in violation of Title VII when it terminated her from her position at State Farm.
SO ORDERED.