Opinion
Civil Action No. 3:97-CV-2881-R
February 4, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Marilyn Haynes ("Haynes") filed suit in this Court against Defendants BlueCross And Blueshield of Texas, Inc. ("BCBSTX"), Windy Moore ("Moore"), and Sue Hoffman ("Hoffman"). Plaintiff claims discrimination, racial harassment, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, the Texas Commission on Human Rights Act ("TCHRA"), and 42 U.S.C. § 1981. Additionally, Plaintiff claims violations of the Family Medical Leave Act ("FMLA") and the Employee Retirement Income Security Act ("ERISA"), as well as intentional infliction of emotional distress. Now before this Court is Defendants' Motion for Summary Judgment, filed January 8, 1999. For the reasons set forth below, that motion is GRANTED IN PART and DENIED IN PART. Defendants' Motion for Summary Judgment is denied as to Plaintiff's claim of disparate treatment race-based training against Defendant BCBSTX under Title VII, TCHRA, and 42 U.S.C. § 1981, as well as against Defendant Windy Moore under 42 U.S.C. § 1981. Defendants' Motion for Summary Judgment is granted as to all other claims.
Also before this Court are Defendants' Objections to Plaintiff's Evidence in Support of Response to Defendants' Motion for Summary Judgment, filed January 8, 1999, and Defendant Windy Moore's Supplemental Motion for Summary Judgment, filed January 8, 1999. These objections, as well as the motion, are considered below.
BACKGROUND FACTS
In April 1981, Haynes, a female African-American, began working for BCBSTX as a Claims Examiner I ("CEE-I") grade 5 assigned to the Dental Division. In September 1982, Haynes was promoted to a CEE-II grade 6 position, also in the Dental Division. She was promoted to a CEE-III grade 7 position in December 1986; this was the highest graduated level within the CEE position. Haynes also received the highest possible salary for that position.
Initially, an employee must post (apply) for a position. The employee must subsequently be trained and actually performing the duties of that position prior to receiving the promotional pay raise. However, BCBSTX does not have a formal training program for any of its employees. Rather, new employees are trained on the job by experienced employees. Additionally, the Dental Division Supervisor was responsible for providing training to the employee, including monitoring the employee's production and quality standards. Further, the Dental Division Supervisor was responsible for determining when the employee's production and quality standards made him or her eligible for promotion.
For a period in 1996-98, Susan Tepfer, who had been promoted to the position of Dental Division Trainer was responsible for determining when the employee's quality standards qualified him or her for promotion. BCBSTX's policy has been that an employee receives his or her pay raise immediately after promoting into a graduated position. If it is a non-graduated position, they receive the pay raise after six months.
Windy Moore became Dental Division Supervisor in May 1991. Prior to 1993, Haynes had applied for a customer service position within the Dental Division, but was not selected. Instead, another African-American female, Janice Cuttino, was selected for the position. This was the only position within the Dental Division, for which Haynes applied prior to 1993. Haynes, also, applied for the following positions outside of the Dental Division in the early to mid 1990's: (1) Quality Control Analyst in the home office, (2) a job in the Medical Division, and (3) a job in the Health Division of Medical. However, Moore did not approve Haynes' requests for lateral transfers. Therefore, Haynes did not receive any of these positions. In December 1991, Haynes sought training for a Claims Examiner III/Suspense Clerk-grade 8 position. After Moore selected another employee, Haynes informed Moore that she desired to be considered for a suspense clerk position.
It is not clear from the evidence submitted whether Haynes was qualified for these positions. (Haynes Deposition 159:4-9.) Neither party stipulates as to any training that was to be provided to successful job applicants. (See id.; Defendants' Joint Motion at 3.)
On May 25, 1995, Haynes was scheduled for jury duty. She notified BCBSTX about the jury duty on the day prior to her scheduled duty. The following day, Haynes proceeded to jury duty, but was released because she was seven months pregnant. Thereafter, Haynes went home. The next day, Moore questioned Haynes about her absence, requesting to see the jury service notification. Haynes could not produce one because she had not waited for the jury notification. However, Haynes offered to obtain a copy of the notification from Dallas County. Yet, Moore did not give Haynes the opportunity to provide a written response to the alleged dishonesty.
The Court is perplexed as to the issue of jury notification. It would seem logical that the jury notification would arrive before jury service. It is more likely that Haynes is referring to her excusal from jury duty.
Moore, subsequently, terminated Haynes' employment, believing that Haynes had lied about the amount of time spent at jury service and the jury notification being distributed on the date of jury service. At the time of this termination, Moore was aware of Haynes' pregnancy, as well as her corresponding need for medical benefits. One week later, Haynes was reinstated to her original position, but was not given her one week's lost wages.
Haynes believes that, in June 1995, Moore announced an opening for the Claims Examiner/Suspense Clerk-grade 8 position. However, Moore told Haynes that she was not accepting applications at that time. Later that month, on June 28, 1995, Haynes took maternity leave for the birth of her son. In August 1995, Teresa Sartain, who held the position of CE-IV Suspense Clerk, laterally transferred into the Customer Service Representative position. This transfer left only Peggy Eldridge, an African-American female, doing suspense functions in the Dental Division. After evaluating the candidates, Moore selected April Stafford, a Caucasian female, to assist Eldridge with the suspense related work. Thus, Stafford was placed into a CE-II Suspense Clerk-grade 6 position. At the time, Stafford had approximately three years of experience in claims entry, in contrast to Haynes' fourteen years of experience. Haynes returned to work on September 26, 1995.
Haynes, also, complains that Stafford was not required to wait six months for the non-graduated promotion.
In December 1995, Hoffman became the first manager of the Dental Division. In early 1996, Haynes complained to BCBSTX's Employee Relations manager Kristen Henson concerning her failure to receive training for a promotion to the Suspense Clerk-grade 8 position.
The suspense function requires the employee to have special on the job training, in addition to academic training.
In April 1996, the Dental Division Unit Leader, Susan Tepfer, a Caucasian female was promoted to the position of Dental Unit Trainer/Quality Control-grade 10. Peggy Eldridge, who had previously been a Suspense Clerk-grade 8, was promoted to the position of Unit Leader-grade 9. As Suspense Clerk, Eldridge was not responsible for monitoring or grading the suspense clerk's production or quality standards. After her promotion to Unit Leader-grade 9, Eldridge was responsible for monitoring the suspense clerk's production standards. The task of determining Haynes' quality standard was given to Unit Trainer Tepfer. Eldridge never had the responsibility or authority for determining when Haynes' quality and production standards made her eligible for promotion.
On July 16, 1996, Haynes received the graduated promotion to the position of Suspense Clerk-grade 8. However, there is a genuine issue of fact as to the quantity and quality of training Haynes, subsequently or previously, received. In September 1996, Moore changed the production and quality standards for the suspense clerk position. Being the only suspense clerk in training, Haynes was the only one affected by the change. In November or December 1996, Moore and Hoffman believed that Haynes was not progressing in her knowledge of the position's required job functions. Later, in late 1996 or early 1997, Moore and Hoffman directed Eldridge to train Haynes on the suspense clerk function of "possible dupes." Tepfer remained responsible for all other aspects of Haynes' training.
The record is not clear as to whether this was actually a grade 7 position that was upgradable to grade 8 at a later time.
This term has in-house meaning.
In January 1997, Haynes was four months pregnant, had completed over six months of training, and was eligible to promote to the Suspense Clerk-grade 8 position. Thereafter, Haynes requested a conference with Hoffman concerning her promotion to the Suspense Clerk-grade 8 position. During the conference, Hoffman questioned Haynes about certain suspense functions in which Haynes had not received training and told Haynes that she was not eligible for promotion. In fact, Hoffman told Haynes that she would have to perform as an "expert" to be promoted. However, Hoffman never required any other employee to become an expert for promotion within the Dental Department.
On January 30, 1997, Haynes visited her obstetrician, Dr. Joseph Carlos, for an exam related to her pregnancy. Dr. Carlos informed Haynes that her blood pressure was dangerously elevated, and that either Haynes or her unborn child would die if an emergency caesarian was not conducted. Haynes began maternity leave due to her emergency caesarian on January 31, 1997. Her daughter was born weighing 1 lb, 3 ounces and was in the neo-natal intensive care for approximately three months.
The date appears to be a mistake in Plaintiff's Response and affidavit. (Plaintiff's Response at 7; Haynes Affidavit at 4). The Court assumes the correct date to be the one appearing in Appendix 19. (Appendix 19.)
On February 28, 1997, Haynes filed her EEOC charge. Haynes' charge alleged that Defendants denied her promotion based upon her race. On March 17, 1998, Haynes returned from maternity leave. Thereafter, Haynes informed Moore and Hoffman that she would be taking Family Medical Leave ("FML") as soon as she had renewed FMLA entitlement. On May 2, 1997, Haynes received her performance appraisal. This was the day before she was scheduled to go on FML to care for her daughter. Moore rated Haynes as "MMR" (meets minimum requirements) and denied her a merit pay increase. Haynes began FMLA leave on May 3, 1997, to care for her daughter who was on a respirator.
When Haynes returned from FMLA leave on August 3, 1997, Hoffman informed Haynes that she believed Haynes had forgotten certain suspense functions. Hoffman further informed Haynes that Haynes would again have to demonstrate that she was competent as a Suspense Clerk-grade 7 to be eligible for promotion to grade 8. In addition, Tepfer graded Haynes' production as having errors. Thereafter, Haynes reported her lack of training opportunities and harassment to Carol Freeman in Employee Relations.
On September 15, 1997, Haynes sought professional counseling from Psychologist Dr. Alan Cooper. Haynes was diagnosed with major depression and moderate anxiety disorder. Additionally, Dr. Cooper determined that the stress and problems at Haynes' workplace were the cause of her depression and anxiety.
On September 23, 1997, Hoffman, Moore, Haynes, Eldridge, and Tepfer attended a meeting to assess how Haynes was progressing in her position, and to determine whether she had been fully trained on the suspense code function. It was determined that September would mark the first month of a three-month evaluation of Haynes' eligibility for promotion to Suspense Clerk-grade 8. However, it is not clear who agreed to this time frame.
Haynes filed this lawsuit on November 26, 1997. On December 1, 1997, Haynes was promoted to Suspense Clerk-grade 8. Prior to promoting Haynes, Hoffman knew about Haynes' lawsuit. This promotion would also be consistent with the alleged three month time frame established at the September 23, 1997 meeting.
Haynes further alleges that Defendants reclassified certain positions, and upgraded employees to preclude African-American employees from being involved in the promotional process. She points to Tepfer's upgrade to Senior System Analyst-grade 10 as an example. Additionally, there are further allegations that Defendants failed to make the African-American Employees aware of possible job openings. Haynes alleges that these discriminatory policies precluded African-Americans from being promoted to positions of responsibility, where as supervisor or manager, they could authorize training, approve hiring and promotions, and evaluate employees.
DISCUSSION
I. STANDARD FOR GRANTING SUMMARY JUDGMENT
"Summary judgment is proper when, viewing the evidence in the light most favorable to the non-movant, `there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law.'" Wilson Industries. Inc., v. Aviva America. Inc., 185 F.3d 492, 494 (5th Cir. 1999) (quotingAmburgey v. Corhart Refactories Corp., 936 F.2d 805, 809 (5th Cir. 1991)); Fed.R.Civ.P. 56(c). However, all reasonable doubts and inferences must be decided in the light most favorable to the party opposing the motion. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). Furthermore, as long as there appears to be some evidentiary support for the disputed allegations, the motion must be denied.See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coke v. General Adjustments Bureau, 640 F.2d 584, 595 (5th Cir. 1981) (en banc).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where the nonmoving party bears the burden of proof on a claim, upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that "there is an absence of evidence to support the nonmoving party's case."Id. at 325. Once the moving party satisfies this burden, the nonmoving party may then oppose the motion by going "beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324; Anderson, 477 U.S. at 256. Summary judgment will be granted 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, 477 U.S. at 322.
II. PRELIMINARY ISSUES
A. DEFENDANTS' OBJECTIONS TO PLAINTIFF'S EVIDENCE IN SUPPORT OF RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants raise two general objections to Plaintiff's Evidence in Support of Response to Defendants' Motion for Summary Judgment. Defendants' first objection to Plaintiff's evidence is premised on a doctrine not supported by the law. Defendants cite to National Ass'n of Gov't Employees v. City Public Service Board of San Antonio, Texas, 40 F.3d 698 (5th Cir. 1994), for the proposition that conclusory allegations unsupported by specific facts will not prevent the award of summary judgment. (Defendants' Objections to Plaintiff's Evidence in Support of Response to Defendants' Motion for Summary Judgment at 1-2.) However, National Ass'n of Gov't Employees does not stand for the proposition that an affidavit cannot be used in opposition to summary judgment, but rather that a party cannot stand on conclusory allegations contained in the complaint to survive summary judgment. See Anderson, 477 U.S. at 248; Adickes v. S.H. Kress Co., 398 U.S. 144, 159 n. 18, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed. 569 (1968). Indeed,National Ass'n of Gov't Employees cites Anderson for the language relied upon by Defendants. See National Ass'n of Gov't Employees, 40 F.3d at 713.
Instead, the language is referring to FRCP 56(e)'s mandate that plaintiffs cannot survive summary judgment with only the conclusory allegations contained in their complaints. See Anderson, 477 U.S. at 248; Adickes, 398 U.S. at 159 nn. 18 20;First National Bank of Arizona, 391 U.S. at 290. However, the very purpose of FRCP 56(e) is to describe the form of affidavits used to support or oppose summary judgment. See FED R. CIV. P. 56 (e). Indeed, FRCP 56(c), in relevant part, states: "The judgment sought shall be rendered forthwith if the pleadings . . ., together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." FED R. CIV. P. 56 (c) (emphasis added). Thus, it is clearly evident that Plaintiff may use affidavits to oppose Defendants' Motion for Summary Judgment.
Finally, Defendants object to Plaintiff's alleged use of inadmissible evidence and statements not supported by personal knowledge. (Defendants' Objections to Plaintiff's Evidence in Support of Response to Defendants' Motion for Summary Judgment at 1.) Defendants' citation to Automatic Radio Mfg Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 896 (1950), is not helpful. See id. This argument correctly relies upon FRCP 56. See FED R. Civ. P. 56. However, "the papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party." Lodge Hall Music. Inc., v. Waco Wrangler Club. Inc., 831 F.2d 77, 80 (5th Cir. 1987). Thus, after reviewing the opposed evidence, the Court concludes that Defendants' objections are without merit. Accordingly, Defendants' objections are overruled.
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Defendants' claim that portions of Plaintiff's Title VII and TCHRA complaints are beyond the scope of the initial Equal Employment Opportunity Commission ("EEOC") and TCHR charges and, thus, barred is without merit. While it is true that "[a] judicial complaint filed pursuant to Title VII is limited to those claims in the Plaintiff's initial charge before the EEOC or the TCHRA," (Defendants' Joint Motion at 9 (citing Anderson v. Lewis Rail Serv. Co., 868 F.2d 774 (5th Cir. 1989)); National Ass'n of Govern. Emp., 40 F.3d at 711; Young v. City of Houston, 906 F.2d 177, 179-80 (5th Cir. 1990); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465-67 (5th Cir. 1970) (establishing the 5th Cir. rule), the scope of the judicial complaint is limited only by the "`scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Sanchez, 431 F.2d at 466. See also National Ass'n of Govern. Emp., 40 F.3d at 711 (citing Sanchez); Young, 906 F.2d at 179 (citing Sanchez). Thus, Sanchez is clearly the law of the circuit on this issue.See generally id.
In Sanchez, the court broached this issue as a matter of first impression. See Sanchez, 431 F.2d at 466. The court adopted the reasoning of the only district court in the circuit to consider the issue. See id. (discussing King v. Georgia Power Co., 295 F. Supp. 943 (N.D. Ga. 1968)). Thus, the court held that "a judicial complaint filed pursuant to Title VII `may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission.'" Id. (quoting King, 295 F. Supp. at 947). The court opined:
At the time of the Sanchez opinion, Georgia was included within the jurisdiction of the Fifth Circuit.
The logic of this rule is inherent in the statutory scheme of Title VII. A charge of discrimination is not filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, the Commission carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve voluntary compliance will the matter ever become the subject of court action. Thus[,] it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation. Within this statutory scheme, it is only logical to' limit the permissible scope of the civil action to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.Id. (emphasis in the original).
Accordingly, the Young court upheld a district court's dismissal of a plaintiff's sex discrimination claim because the plaintiff had only alleged race and age discrimination with the EEOC. See Young, 906 F.2d at 179-80. Significantly, the court implied that had the EEOC considered sex discrimination the result would have been different. See id.
Nor does Anderson support Defendants' position. See 868 F.2d at 775. Indeed, the Anderson court was not specific in its refusal to disturb the district court's dismissal of the plaintiff's claims unrelated to their initial EEOC complaint. See id. However, the Anderson court did rely on Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979), as the basis for its denial of relief. See id. Yet, Hoffman does not that stand for the same proposition advanced by Defendants See id.; (Defendants' Joint Motion For Summary Judgment at 9.) Rather, Hoffman concerned a plaintiff that never sought an administrative remedy prior to filing his complaint. See id. at 684-85.
Finally, the Court declines to follow the Snooks v. University of Houston, Clear Lake opinion. 996 F. Supp. 686 (S.D. Tex. 1998). First, Snooks relies heavily upon opinions of other circuits in order to reach its conclusion that the plaintiff's claim of unequal pay did not grow out of the original EEOC charge. See id. at 690. As stated above, Sanchez provides more than adequate direction for the Court. See National Ass'n of Govern. Emp., 40 F.3d at 711 (citing Sanchez); Young, 906 F.2d at 179 (citingSanchez). Second, the citation to Thorton v. Neiman Marcus, 850 F. Supp. 538, 541-42 (N.D. Tex. 1994), does not support the proposition proffered. See id. In Thorton, analogously to Young, the plaintiff attempted to add race and retaliation claims after only complaining of sex discrimination in his EEOC complaint. See id. The court dismissed those charges because there was no evidence that the EEOC had investigated those additional charges.See id. Here, it is reasonable for allegations of unequal pay to be included in an EEOC investigation of race discrimination. Third, whether allegations of unequal pay reasonably arise out of Plaintiff's EEOC charge is a question of fact particular to the specific case. Thus, Snook does not illuminate any matter in the case at bar.
In moving for summary judgment, Defendants argue that certain allegations are outside the scope of Haynes' EEOC charges and the EEOC investigation. (Defendants' Joint Motion For Summary Judgment at 9-10.) However, the Court is of the opinion that Haynes' administrative remedies have been exhausted. The EEOC charge dated February 28, 1997 alleges that Defendants denied Haynes promotions. (Joint Appendix to Defendants' Joint Motion for Summary Judgment at Plaintiff's Evidence Exhibit 14.) Additionally, Haynes claimed discrimination because of her race, as well as retaliation for opposing an illegal practice. (See id.) The EEOC charge dated February 17, 1998 alleged that Defendants racially harassed Haynes. (Joint Appendix to Defendants' Joint Motion for Summary Judgment at Plaintiff's Evidence Exhibit 6.)
1. BCBSTX Maintains A Policy, Practice, And Custom of Discrimination
It appears to the court that it is clear that an EEOC investigation into any of the charges would reasonably include an investigation into BCBSTX's policies, practices, and customs to determine if the Defendant was the source of the discrimination. Therefore, applying Sanchez, the Court rules that Haynes' administrative remedies are exhausted in reference to her claim that BCBSTX maintains a policy, practice, and custom of discrimination. See Sanchez, 431 F.2d at 466. This ruling includes BCBSTX's training policies.
2. Plaintiff Was Paid Less Than Non-Protected Employees
Although, an unequal pay claim does not reasonably grow out of a racial harassment or discriminatory denial of promotion charge, it could reasonably grow out of a retaliation claim, It is reasonable to believe that the EEOC investigation included an comprehensive inquiry into how BCBSTX retaliated against Haynes. Thus, applying Sanchez, the Court rules that Haynes' administrative remedies are exhausted in reference to her claim of unequal pay. See id.
"[S]urely Goliath should not be allowed to fell David with the help of a club fashioned from forms and legal technicalities. The most elementary principles of justice require us to remove this club and compel a battle on the merits of the controversy."Sanchez, 431 F.2d at 467 (quoting Chief Judge Brown's, then Chief Judge of the Fifth Circuit, characterization of Title VII claims as a classic battle between David and Goliath.) (emphasis in the original).
C. STATUTE OF LIMITATIONS
Finally, Defendants assert that federal and Texas law prevent this Court from considering any alleged acts, which support Plaintiff's claims of race discrimination, harassment, and retaliation, that occurred more than 300 days prior to Haynes filing charges with the Texas Commission on Human Rights ("TCHR") and the EEOC. (Defendants' Joint Motion at 8.) Defendants correctly rely upon federal and state law that require plaintiffs to file a complaint with the TCHR and EEOC "within 300 days after the date on which an alleged unlawful practice occurred." (Id. (citing Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994); Specialty Retailers. Inc., v. DeMoranville, 933 S.W.2d 490, 491 (Tex. 1996)).) Likewise, Haynes acquiesces in the Defendants' assertion that this Court is barred from considering any acts that occurred more than 300 days prior to her filing charges. (Plaintiff's Response at 11.) Therefore, the only issue for the Court is to determine which date is 300 days prior to the day that Haynes filed charges.
Because Haynes falls to raise any issue of fact that would warrant the Court's consideration of any equitable doctrines as a defense to the statute of limitations, the Court declines to consider equitable doctrines sua sponte. See generally Amburgey, 936 F.2d at 809-11.
Defendants contend that all acts prior to May 5, 1996 are barred from this litigation in this lawsuit. (Defendants' Joint Motion at 9 n. 6,) Defendants compute this date by counting back 300 days from February 28, 1997, the date that Haynes' first charge was filed. (See id.) In her response, Haynes does not dispute this date. (Plaintiff's Response at 11-12.) Rather, she argues that Defendants' alleged acts within the 300 days limitation period are sufficient to sustain her claims. (See id. at 12.) This argument need not be addressed at this point of the opinion; however, Haynes' Response implicitly manifests an acquiescence to the May 5, 1996 cut-off date. Therefore, in considering the sections of Defendants' Motion for Summary Judgment, as well as Defendant Windy Moore's Supplemental Motion for Summary Judgment, pertaining to Title VII and TCHR claims, the Court will not weigh any acts that occurred prior to May 5, 1996.
Defendants' have failed to present any evidence concerning any possible evidentiary limitation associated with Plaintiff's filing of charges on February 17, 1998. Therefore, any possible limitation argument, relating to the February 17, 1998 charges, is denied.
Finally, the Court will apply a two year statute of limitations to Haynes' § 1981 claims. See Price v. Digital Equipment Corp., 846 F.2d 1026, 1028 (5th Cir. 1988). Thus, the Court will not consider any alleged acts prior to November 27, 1995 in reviewing Haynes' § 1981 claims.
The Court arrived at this date by subtracting two years from the November 26, 1997 filing date of Plaintiff's Original Complaint.
III. THE MERITS OF THE CASE
1. Moore's Title VII Liability
A. TITLE VII
Defendant Moore claims that she is not liable under Title VII because she does not fall under the statute's definition of employer. (Defendant Windy Moore's Supplemental Motion for Summary Judgment at 6-7.) Moore's interpretation of the law of this circuit is correct. See Grant v. Lone Star Co., 21 F.3d 649, 651-3 (5th Cir. 1994). Title VII liability is aimed at employers, not employees. See id. Thus, the Court dismisses Haynes' Title VII claims against Defendant Moore as a matter of law. See id.
The fact that Moore had supervisory power does not change the Court's decision. The Fifth Circuit has already rejected this argument in Grant. See 21 F.3d at 653.
Apparently, Haynes agrees with this interpretation of Fifth Circuit law as well. (Plaintiff's Response.)
2. Plaintiff's Claims
Although it is difficult to ascertain, Haynes raises seven Title VII claims. (Plaintiff's Response at 12 14-5.) First, Haynes alleges that she did not receive training because of her race. Second, Haynes alleges that she did not receive a promotion because of her race. Third, Haynes alleges that she did not receive a pay raise because of her race. Fourth, Haynes alleges that Defendants required her to perform as an expert because of her race. Fifth, Haynes alleges that Defendant Moore changed the performance standards applicable to her because of her race. Sixth, Haynes alleges that Defendants created a racially hostile working environment. Finally, Haynes alleges that Defendants retaliated against her for exercising her Title VII rights.
3. Disparate Treatment Analysis
Haynes' Title VII disparate treatment claims are governed by the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-4, 93 S.Ct. 1817 (1973). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742 (1993);Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Walton v. Bisco Ind., Inc., 119 F.3d 368, 370 (5th Cir. 1997). Under McDonnell Douglas' burden shifting framework, the plaintiff must prove "by a preponderance of the evidence a prima facie case of discrimination." Burdine, 450 U.S. at 252-3. See also St. Mary's Honor Center, 509 U.S. at 506-7; Walton, 119 F.3d at 370. However, "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253. Moreover, there is not a fixed formula to establish a prima facie case for every employment situation. See McDonnell Douglas, 411 U.S. at 802 n. 13; Burdine, 450 U.S. at 253-4 n. 6.
Yet, the Court accepts the prima facie test proffered by the Defendants as being appropriate for the claims in this case that do not involve a denial of promotion. (Defendants' Joint Motion at 11.) Therefore, Haynes must prove (1) she is a member of a protected class, (2) she suffered an adverse employment action, and (3) employees outside of the protected class were treated differently. (Id.) Likewise, the Court will apply a modified version of the McDonnell Douglas prima fade test for any denial of promotion claims. See McDonnell Douglas, 411 U.S. at 802. Specifically, Haynes will have to show (1) that she belongs to a racial minority; (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite her qualifications, she was rejected; and (4) that, after her rejection the employer hired someone less qualified than her. See id. at 802 n. 13.
After the plaintiff has established a prima facie case of discrimination, "[t]he burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id.; Burdine, 450 U.S. at 253; See also Walton, 119 F.3d at 370.
To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted.Burdine, 450 U.S. at 255. However, the ultimate burden of proving discrimination remains with the plaintiff at all times. Id. at 253.
Finally, the plaintiff has the burden of proving that the legitimate reasons offered by the defendant are only pretext for discrimination. See id. at 256; McDonnell Douglas, 411 U.S. at 804; Walton, 119 F.3d at 370; Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996). Further, the Fifth Circuit, relying upon St. Mary's, 509 U.S. at 515, has placed additional restrictions on the proof of pretext. See Walton, 119 F.3d at 370. Thus, a plaintiff must not only create "a fact issue regarding whether each of the employer's stated reasons was what actually motivated" the employer, but also "a reasonable inference that race . . . was a determinative factor in the actions of which plaintiff complains." Id. The citations to St. Mary's, however, do not stand for the proposition that a plaintiff must prove discrimination in addition to proving pretext. See id. at 370-71. Instead, the language supports the proposition that, once the plaintiff disproves the legitimate reasons proffered by the defendant, the trier of fact is not compelled to find for the plaintiff See id. Rather, the trier of fact is permitted "to infer the ultimate fact of intentional discrimination." Id. This merely reinforces the fact that the burden of proof remains on the plaintiff as to discrimination throughout the McDonald Douglas burden shifting framework. See Burdine, 450 U.S. at 253.
a. Plaintiff's Prima Facie Case
Irregardless of the claim, Haynes, as an African-American, is a member of a protected class. Thus, she satisfies the first element of her prima facie case as to all of her Title VII claims. See McDonnell Douglas, 411 U.S. at 802. Additionally, the Court's Title VII analysis will only concern Defendant BCBSTX.
Defendant Hoffman was joined only with respect to the § 1981 allegation. Likewise, the Court has already dismissed the Title VII claims against Moore above.
i. Training
First, Haynes alleges that she did not receive the necessary training for promotion because of her race. (Plaintiff's Response at 12.) If this allegation is true, she has clearly suffered an adverse employment action within the meaning of Title VII's proscriptions. Surely, Congress did not intend for defendants to evade liability in regard to promotions, by simply denying plaintiffs the opportunity to receive the training necessary for the promotion because of their race. If, in fact, Defendant denied Haynes the opportunity to adequately train for promotions because of her race, it changed the terms, conditions, privileges, and employment opportunities of her employment in violation of Title VII. See 42 U.S.C. § 2000e-2 (a) (West Supp. 1999). As training was integral to the internal employment decisions, a denial of training would clearly tend to affect her employment status and benefits.
Further, Haynes has presented sufficient evidence to raise a question of material fact with respect to the training she was allegedly denied. She has produced not only her affidavit, but also the affidavit of one of Defendant's Unit Leaders. (Haynes Affidavit; Peggy Eldridge Affidavit.) Moreover, Haynes has provided the Court with evidence that additional employees can collaborate her allegations. (Plaintiff's Evidence at Appendix 18.) Indeed, she has provided the Court with ample evidence to demonstrate that there are witnesses who support her allegations of race-based training opportunities. Finally, if the allegations are true, then, by definition, the employees outside of the protected class would have been treated differently. Therefore, the Court finds that Haynes has established a prima facie case with regard to her claim of race-based training.
Likewise, Defendant has only provided the Court with affidavits of possible trial witnesses. There are no training records nor training policies that would allow the Court to determine this material fact as a matter of law. Instead, the credibility of these potential witnesses should be determined by the ultimate fact finder. Therefore, Defendant has not discharged its "burden by showing that `there is an absence of evidence to support the nonmoving party's case.'" Celotex Corp., 477 U.S. at 325.
ii. Promotion
Second, Haynes alleges that she did not receive a promotion because of her race. (Plaintiff's Second Amended Complaint at 3.) This claim is analyzed under the McDonnell Douglas framework. See McDonnell Douglas, 411 U.S. at 802. However, Haynes cannot carry her burden as to the second element of her prima facie case. See id. Specifically, she fails to direct the Court to any job openings for which she applied within the limitations period. The promotion of April Stafford occurred in August of 1995. (Plaintiff's Response at 3.) However, this act is barred by the statute of limitations. Further, Haynes has failed to direct the Court to any position opening, after May 5, 1996, for which she applied and did not receive the position. (See id. at 2-9.) Indeed, Haynes was promoted in July, 1996. (See id. at ¶ 22.) Additionally, Haynes' allegation with regard to her promotion to grade 8 fails for the same reason. There is not sufficient evidence to establish that there was a grade 8 position available for her. Therefore, Defendants' motion is granted with respect to Haynes' denial of promotion claim.
Refer to Section II.C. of this opinion for a full discussion of this issue.
See id.
iii. Pay Raise
Third, Haynes alleges that she did not receive a pay raise because of her race. (Plaintiff's Second Amended Complaint at 4.) However, by her own admission, the first merit pay increase that she was denied occurred in May 1997. (Plaintiff's Response at 7.) There is no other allegation of a denial of a merit increase. (See id. at 7-9.) Further, Haynes produces no evidence that she was entitled to the merit pay increase.
Moreover, the only other allegation, as to the denial of pay raises, is related to the denial of promotion after six months of training. (See id. at 6.) Yet, Haynes fails to produce evidence sufficient to support her claim of a right to a pay increase at any specific point in her employment. Therefore, Defendants' motion is granted with respect to Haynes' pay raise claim.
iv. Expert Requirement
Fourth, Haynes alleges that she was required to perform as an expert. (Plaintiff's Second Amended complaint at 4.) However, an employer can change performance requirements as long as it is not because of a prohibited reason. See Deines v. Texas Dept. of Prot. Reg. Services, 164 F.3d 277, 281 (5th Cir. 1999) ("`discrimination laws [are not] vehicles for judicial second guessing of business decisions'"); Walton, 119 F.3d at 372. As the Deines court noted, "Whether the employer's decision was the correct one, or the fair one, or the best one is not a question within the jury's province to decide. The single issue for the trier of fact is whether the employer's [action] was motivated by discrimination." Deines, 164 F.3d at 281 (citation omitted). Here, Haynes cannot produce evidence that the employees outside of the protected class were not required to be experts, because she was the only one in the position. This failure is fatal to this claim.
Conceivably, Haynes may be claiming that the expert requirement was designed to prevent her from receiving a promotion. However, that argument is a denial of promotion claim, discussed above. Thus, the Court grants Defendants' motion with respect to Haynes' expert requirement claim.
v. Changing Performance Standards
Finally, Haynes alleges that Defendant Moore changed the performance standards applicable to her because of her race. For the same reasons discussed above, Defendants' motion is granted with respect to Haynes' changing performance claim.
b. Defendants' Legitimate, Nondiscriminatory Reason
i. Training
Apparently, Defendant BCBSTX does not understand Haynes' training claim as it has wholly ignored the claim in its motions. (Defendants' Joint Motion at 11-13; Defendants' Reply at 2-3.) Mistakenly, Defendant glossed over the training claim, believing that it was embodied within the promotion claim. (See id.) It is not. Because of Defendant's oversight, it has failed to carry its burden, under the McDonnell Douglas framework, of presenting a legitimate, nondiscriminatory reason for the alleged race-based training practice. (See id.); McDonnell Douglas, 411 U.S. at 802. Accordingly, Defendants' motion is denied as to Haynes' race-based training claim.
4. RETALIATION
To establish a prima facie retaliation case, the plaintiff must produce evidence that (1) Plaintiff engaged in activity protected by Title VII; (2) Defendants took adverse employment action against the employee; and (3) a causal connection exists between the protected activity and the adverse employment action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997) (citation omitted). In addition, the Fifth Circuit has held that adverse employment actions, as used in the retaliation elements, are "`[u]ltimate employment decisions' includ[ing] acts `such as hiring, granting leave, discharging, promoting, and compensating.'" Id. at 707 (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th cir. 1995)).
For a textural argument for this limitation see Mattern, 104 F.3d at 708-9.
Thus, Haynes' expert requirement and changed performance standards claims are not actionable under a retaliation theory as a matter of Fifth Circuit law. See id. Additionally, Haynes claims of threats of termination, as well as harassment intended to force her to resign, are not adverse employment actions. See id. at 708. Further, Haynes' training claims fail under the retaliation cause of action because she offers no evidence in support of a "causal connection between the [filing of title VII charges] and the alleged lack of training. See id. at 705. Finally, Haynes' denial of promotion and pay raise claims fail for the same reason they failed under the disparate treatment theory above. Thus, Defendants' motion is granted with respect to Haynes' Title VII retaliation claims.
5. HOSTILE ENVIRONMENT RACIAL HARASSMENT
Haynes' hostile work environment claim is without merit. Actionable harassment, under Title VII has to be because the plaintiff is a member of a protected class. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). While Haynes has no problem proving that she is a member of a protected class, she does not convince the Court that the alleged harassment affected the terms, conditions, and privileges of her employment nor was because of her race. See id. "Of course, . . . not all workplace conduct that may be described as `harassment' affects a `term, condition, or privilege' of employment within the meaning of Title VII." Meritor, 477 U.S. at 67. Further, Haynes provides the Court with no evidence of any action by Defendants that created a hostile work environment that is actionable under Title VII. While, arguably, Tepfer's alleged conduct is harassment in the traditional sense, there is no evidence that it was severe enough to change a term, condition, or privilege of Haynes' employment. See id. Nor is there any evidence that it was because of Haynes' race. In summary, Title VII does not forbid general harassment, but harassment that is because of a plaintiff's membership in a protected class. See Harris, 510 U.S. at 21-23;id. Thus, the Court grants Defendants' motion in regard to Haynes' hostile work environment claim.
The allegations of the other African-American women are not specific enough for the Court to utilize in ruling on the hostile environment claim.
B. TEXAS COMMISSION ON HUMAN RIGHTS ACT ("TCHRA")
The law governing Haynes' TCHRA claims is identical to the law governing her Title VII claims. See Shackelford v. Deloitte Touche, L.L.P., 1999 WL 728105 at 3 n. 2 (5th Cir. 1999); Knee v. EEX Corp., 1999 WL 354229 at 4 n. 4 (N.D. Tex. 1999); Colbert v. Georgia-Pacific Corp., 995 F. Supp. 697, 701 (N.D. Tex. 1998). Thus, the Title VII analysis is incorporated for the TCHRA claims. Therefore, Defendants' motion with respect to Haynes' TCHRA claims against Defendant Windy Moore is granted; likewise, with the exception of Haynes' race-based training claims, Defendants' motion with respect to Haynes' TCHRA claims against BCBSTX is granted.
C. § 1981
42 U.S.C. § 1981 claims are analyzed under the same legal framework as Title VII claims. See Anderson v. Douglas Lomason Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994); Flanagan v. A.E. Henry Com. Health Services Ctr., 876 F.2d 1231, 1233-4 (5th Cir. 1989); Comeaux v. Uniroyal Chemical Corp., 849 F.2d 191, 192 n. 1 (5th Cir. 1988); Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986); Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 818 (5th Cir. 1982); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir. 1980). However, as noted above, this Court will evaluate more evidence in the § 1981 analysis than under Title VII. Further, Grant, 21 F.3d at 651-3, is not applicable under § 1981. Thus, the Court will evaluate the § 1981 liability of Defendants Windy Moore and Sue Hoffman.
Under the Statute of Limitations section, the Court decided that it would apply a two year limitation period on the evidence for § 1981 review.
1. BCBSTX
Relying upon the Title VII analysis above, the Court denies Defendant BCBSTX's motion with respect to Haynes' § 1981 disparate treatment race-based training claim. Likewise, the Court grants Defendant BCBSTX's motion with respect to Haynes' § 1981 disparate treatment denial of promotion, pay raise, expert requirement, and changing performance standards claims, as well as Haynes' § 1981 hostile work environment and retaliation claims.
Although the applicable statute of limitations allows the Court to look at additional evidence for the denial of promotion claim, the Stafford promotion is still barred as evidence because it occurred prior to November 27, 1995.
2. MOORE
Additionally, the Court grants Defendant Moore's Joint Motion with respect to all of Haynes § 1981 claims asserted against her, except for the disparate treatment race-based training claim. The evidence strongly suggests that Defendant Moore was responsible for the training within the Dental Division. Because the race-based training claim survives summary judgment, it is impossible to dismiss this specific claim against the individual responsible for the training. In addition, Defendant Moore fails to proffer a legitimate, nondiscriminatory reason for the alleged race-based training. Thus, the Court denies Defendant Moore's motion with respect to Haynes' disparate treatment race-based training claim.
3. HOFFMAN
Finally, the Court grants Defendant Hoffman's motion with respect to all of Haynes' § 1981 claims asserted against her. There is not sufficient evidence to satisfy Plaintiff's prima facie burden with respect to the disparate treatment race-based training claim against Hoffman. Haynes has failed to produce evidence connecting Hoffman to the alleged training discrimination. Thus, all claims against Defendant Hoffman are dismissed.
D. FAMILY LEAVE ACT ("FMLA")
Next, Defendants move for summary judgment with regard to Haynes' claim that Defendants violated the FMLA. (Defendants' Joint Motion at 22-3.) The FMLA allows an eligible employee to take up to 12 weeks of unpaid leave when they suffer from "`a serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999) (quoting 29 U.S.C. § 2612 (a)(1)(D)). Additionally, employers are prohibited from penalizing employees who avail themselves to the protections of the Act. See id.
In joining other circuits, the Chaffin court held "that when direct evidence of discrimination is lacking, the McDonnell Douglas organizational framework applies to claims that an employee was penalized for exercising rights guaranteed by the FMLA." Id. Thus, the plaintiff must "establish a prima facie case of discrimination by demonstrating that: (1) she engaged in a protected activity; (2) the employer [refused to provide an earned pay increase, although similarly situated employees received pay increases]; and (3) there is no causal connection between the protected activity and the [refusal to provide an earned pay increase, although similarly situated employees received pay increases]." Id.; (Plaintiff's Second Amended Original Complaint at ¶ 20.) Once, the plaintiff makes the prima facie showing, the "employer must articulate a legitimate, nondiscriminatory reason for the plaintiff's termination." Id. at 320. Finally, "[t]o defeat summary judgment, the plaintiff must produce substantial probative evidence that the proffered reason was not the true reason for the employment decision and that the real reason was the plaintiff's participation in the protected activity." Id.
See King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999); Hodges v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998).
Here, Haynes has failed to make a prima facie case in support of a FMLA cause of action. See id. at 319. She has offered no evidence in support of the contention that she was refused an earned pay increase, although similarly situated employees received pay increases. Indeed, Haynes does not even address the FMLA claim in her response to Defendants' motion. (Plaintiff's Response.) Further, Haynes stated that she was not entitled a merit increase after her FMLA leave. (Haynes Deposition 373:14-17,) Finally, Haynes has failed to produce substantial probative evidence that Defendants' legitimate, nondiscriminatory reason for the alleged adverse employment action is not the true reason. (Plaintiff's Response.) Therefore, with Haynes having failed to establish a prima facie case of discrimination, as well as failed to produce substantial evidence that Defendants' legitimate, nondiscriminatory reason for the alleged adverse employment action is not true, the Court grants Defendants' summary judgment with respect to Haynes' FMLA claim as a matter of law. See Chaffin, 179 F.3d at 319-20.
Both of the proffered reasons are separate and independent grounds for granting Defendants' summary judgment with respect to the FMLA claim.
Because the Court grants Defendants' motion with respect to the FMLA claims, the Court declines to rule on the arguments for summary judgment with respect to the FMLA claims contained in Defendant Windy Moore's Supplemental Motion for Summary Judgment.
E. ERISA
Similarly, Defendants move for summary judgment with respect to Haynes' amorphous ERISA claim. (Defendants' Joint Motion at 23-4.) Under § 510 of ERISA. it is "unlawful for `any person' to `discriminate' against a participant or beneficiary (1) `for exercising any right to which he is entitled' under the plan, ERISA, or the Welfare and Pension Plans disclosure Act [ 29 U.S.C. § 301 et. seq.]. or (2) for the purpose of `interfering' with the attainment of any right to which such participant becomes entitled under the plan or such laws." Heimann v. National Elevator Industry Pension Fund, 1999 WL 669186 at 9 (5th Cir. 1999). The Plaintiff must prove that (1) she participated in a statutorily protected activity, (2) an adverse employment action was taken against her, and (3) a causal connection existed between the two. See Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 881 (9th Cir. 1989). Further, Plaintiff must prove that the adverse action was with the specific intent to engage in activity prohibited by § 510. See Heimann, 1999 WL 669186 at 12.
Haynes' only reference to ERISA is found under the "Jurisdiction And Venue" section of Plaintiff's Second Amended Original Complaint. (Plaintiff's Second Amended Original Complaint at 1-2.)
The Heimann court cited to Kimbro favorably. See Heimann, 1999 WL 669186 at 12.
In the case at bar, Haynes fails to describe an adverse employment action taken against her for exercising any right to which she is entitled under the plan. (Plaintiff's Second Amended Complaint; Haynes Deposition 381-4.) Nor does Haynes present any evidence of Defendants' interference with the attainment of any right to which she was entitled. See id. Additionally, Haynes, once again, fails to address the issue in her Response. (Plaintiff's Response.) Moreover, she presents no evidence from which the Court could possible derive an inference of Defendants' specific intent to engage in any activity prohibited by § 510. See Heimann, 1999 WL 669186 at 12. Therefore, Haynes fails to make out a prima fade case for Defendants' alleged violation of ERISA § 510 as a matter of law. See id.; Kimbro, 889 F.2d at 881. Thus, the Court grants Defendants' motion in regard to Haynes' claim of ERISA violations.
Plaintiff fails as to the specific intent even applying the McDonnell Douglas test. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2nd Cir. 1988); 411 U.S. at 802. Plaintiff cannot make out a prima facie case without any adverse employment action. Here, Plaintiff specifies none. (Haynes Deposition 381-4.)
Likewise, the Court declines to address the ERISA issues raised in Defendant Windy Moore's Supplemental Motion for Summary Judgment because the Court's actions render them moot.
F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally. Defendants move for summary judgment as to Haynes' intentional infliction of emotional distress claim. (Defendants' Joint Motion at 24-5.) Under Texas law, a plaintiff must prove: "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's action caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe."MacArthur v. University of Texas Health Center Tyler, 45 F.3d 890, 898 (5th Cir. 1995); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1375 (5th Cir. 1992); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989); Randall's Food Market, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Summary judgment must be granted as to this claim because Haynes cannot, as a matter of law, prove the second element of this cause of action. See Celotex, 477 U.S. at 322.
"Whether conduct is sufficiently outrageous for purposes of recovery for the intentional infliction of emotional distress is a question of law." Miller v. Galveston/Houston Diocese, 911 S.W.2d 897 (Tex.App.-Amarillo 1995, no writ). Extreme and outrageous conduct is that which is:
[S]o outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. . . . Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, "Outrageous."Ramirez, 970 F.2d at 1375; Dean, 885 F.2d at 306; See also MacArthur, 45 F.3d at 898; Randall's Food Market, 891 S.W.2d at 644. Additionally, mere employment disputes will not sustain a cause of action for intentional infliction of emotional distress.See MacArthur, 45 F.3d at 898; Ramirez, 970 F.2d at 1376; Miller, 911 S.W.2d at 899. "`In order to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer and discipline employees.'" MacArthur, 45 F.3d at 898 (quoting Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir. 1992).
Haynes relies upon two incidents as evidence of Defendants' intentional infliction of emotional distress — terminating her employment and requiring her to perform as an expert. (Plaintiff's Response at 20-21.) First, termination of employment is insufficient to satisfy the extreme and outrageous element of the cause of action. See Miller, 911 S.W.2d at 899. Further, requiring Haynes to produce a jury attendance sheet does not remove the Defendants from the management realm of protection afforded by MacArthur. See 45 F.3d at 898. Second, even if found to be true, Defendants act of requiring Haynes to perform as an expert is not extreme and outrageous. See Ramirez, 970 F.2d at 1377 n. 3. In sum, Defendants' alleged demeaning and insensitive acts do not rise to the level of extreme and outrageous conduct that is required by this cause of action. See MacArthur, 45 F.3d at 898; Ramirez, 970 F.2d at 1375; Dean, 885 F.2d at 306;Randall's Food Market, 891 S.W.2d at 644. Therefore, the Court grants Defendants motion with respect to Haynes' claim of intentional Infliction of emotional distress as a matter of law.See MacArthur, 45 F.3d at 898.
CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment is DENIED as to Plaintiff's claim of disparate treatment race-based training against Defendant BCBSTX under Title VII, TCHRA, and 42 U.S.C. § 1981, as well as against Defendant Windy Moore under 42 U.S.C. § 1981. Defendants' Motion for Summary Judgment is GRANTED as to all other claims.
It is so ORDERED.