Opinion
Civil Action No. 3:03-CV-251-L.
May 28, 2004
ORDER
Before the court are Defendant's Motion for Summary Judgment, filed March 4, 2004; Defendant's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence, filed April 15, 2004; and Plaintiff's Motion for Leave to File Sur-Reply to Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed May 10, 2004. After careful consideration of the motions, responses, replies, competent evidence, record and applicable law, the court grants Defendant's Motion for Summary Judgment, denies as moot Defendant's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence, and denies as moot Plaintiff's Motion for Leave to File Sur-Reply to Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment.
I. Factual and Procedural Background
This is an employment discrimination and retaliation case. Plaintiff Graciela Martinez ("Plaintiff" or "Martinez"), a female, was employed by Defendant Prestige Ford Garland Limited Partnership d/b/a Prestige Ford ("Defendant" or "Prestige Ford") from September 6, 1997 until March 7, 2001, as a sales representative in the used car sales department. As such, Martinez's salary consisted entirely on commission sales. In the years 1998 through 2000, she sold enough cars to earn $54,000, $44,000 and $41,000, respectively.
In December 2000, Martinez complained to Jerry Reynolds ("Reynolds"), the owner of Prestige Ford, that she had been asked to perform certain duties that none of her male co-workers had been required to perform. Specifically, she told Reynolds that she had been ordered to get lunch for the predominately male used car sales force and had been ordered to answer the telephone when the receptionist was absent. She explained that the time spent getting lunch and answering the telephone decreased the amount of time she could devote to selling cars. Two days later, Mauri Peyton ("Peyton"), a Used Car Sales Manager and one of Martinez's supervisors, questioned her regarding her complaint to Reynolds.
In December 2000, Prestige Ford created a minimum sales policy in the used car department, which took effect on January 1, 2001. The policy, known as the "Eight or the Gate" rule, required each used car salesperson to sell a minimum of eight vehicles per month. Failure to do so would result in a one month probationary period. Failure to meet the eight-vehicle quota during the probationary period would result in termination, assuming no mitigating circumstances such as vacation or medical leave, existed.
On December 28, 2000, Martinez received a written warning for poor sales production in that month. In January, 2001, after the implementation of the "Eight or the Gate" rule, and in February, 2001, Martinez sold less than the required eight vehicles. Instead of terminating her, Peyton offered to transfer her to the new car sales department, which was a more structured department. Martinez refused the transfer and was terminated on March 7, 2001.
The exact number of vehicles sold in December 2000 is in dispute. Prestige Ford contends Martinez sold two vehicles (Def. App. at 8), and Martinez contends she sold "at least three" vehicles (Pl. App. at 3). The number of vehicles sold in December 2000 is not material, as the "Eight or the Gate" rule was not implemented until January 2001. Moreover, the record does not reflect what standards were in effect before the "Eight or the Gate" rule.
The parties again dispute the exact number of vehicles sold in January and February 2001. Prestige Ford contends that Martinez sold three vehicles in January and two vehicles in February (Def. App. at 8), and Martinez states that she sold five vehicles in January and five to six and one-half vehicles in February (Pl. App. at 3, 4). This factual dispute is not material, as both parties agree that she sold less than the required eight vehicles in both January and February of 2001.
Martinez subsequently timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and received a right-to-sue letter. On February 5, 2003, Martinez filed suit, contending sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Prestige Ford filed for summary judgment. The court now considers this motion.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. III. Analysis
A. Discrimination
Martinez contends that she was terminated because of her sex. A plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000 (1998). "Direct evidence" is "evidence which if believed, proves the fact [in question] without inference or presumption." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003) (citations omitted).
Martinez has presented no direct evidence of discrimination; therefore, she must rely on the burden-shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973), to create a presumption of intentional discrimination. See Russell, 235 F.3d at 222; see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000). To create such a presumption, Martinez must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. Martinez may establish a prima facie case of discrimination for her termination by providing evidence "`that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class,' or, or in the case of disparate treatment, shows `that others similarly situated were treated more favorably.'" Okoye v. The University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512-513 (5th Cir. 2001) (quoting Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). If she succeeds, Prestige Ford must then articulate a legitimate, nondiscriminatory reason for its action. Id. Finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Martinez must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See id.; see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Byers, 209 F.3d at 425-26.
At the pretext stage, "summary judgment is inappropriate if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that race was a determinative factor in the actions of which plaintiff complains." Pratt v. City of Houston, Tex., 247 F.3d 601, 606-07 (5th Cir. 2001) (internal quotation marks, brackets, and citation omitted). An employee may in some instances survive summary judgment with as little as her prima facie case of discrimination plus evidence contradicting the non-discriminatory reason asserted by the employer, but that is not always enough. Id. at 606 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)). The factors to be considered in determining whether a plaintiff has established a genuine issue of material fact with respect to pretext include "`the strength of the prima facie case, the probative value of the proof that the employer's explanation is false and any other evidence that supports the employer's case and that properly may be considered.'" Id. (quoting Reeves).
Prestige Ford contends that Martinez has not established her prima facie case because she did not suffer an adverse employment action and because she was not treated more favorably than similarly situated employees. Martinez counters that she was terminated and therefore suffered an adverse employment action and that her male counterparts were treated more favorably than she.
Martinez also contends that she was qualified. Prestige Ford does not contest this element of her prima facie case. The court therefore need not discuss it.
Prestige Ford contends that Martinez left its employment instead of accepting a transfer to the new car sales department (Def. App. at 2, 8); Martinez avers that she was terminated (Pl. App. at 4). As the court must view the facts in the light most favorable to the nonmovant and resolve all disputed facts in favor of the nonmovant, the court accepts, for purposes of deciding Defendant's motion for summary judgment, that Prestige Ford terminated Martinez. Therefore, Martinez has established that she suffered an adverse employment action.
Prestige Ford next contends that Martinez cannot establish that she was treated less favorably than her male counterparts because it terminated a male used car salesperson, Jerico Gilbreath ("Gilbreath"), pursuant to the "Eight or the Gate" rule. Gilbreath sold three vehicles in January 2001 and three vehicles in February 2001; he was terminated on March 28, 2001. Prestige Ford produces competent summary judgment evidence which establishes that Martinez was treated more favorably than her similarly situated male counterparts, as she was given the opportunity to transfer to the new car sales department whereas Gilbreath was simply terminated. Martinez does not address Gilbreath's termination but contends that three other male co-workers, Al Gallo ("Gallo"), Dewayne Arrott ("Arrott"), and Ricky Wilson ("Wilson"), did not sell the required number of vehicles and were not terminated. Prestige Ford counters that the "Eight or the Gate" rule was uniformly applied and that Gallo, Arrott and Wilson were not treated more favorably than Martinez. The court agrees.
Prestige Ford also relies on the termination of Randy Boston ("Boston"), a male used car salesperson. Boston was terminated in January 2001 for low sales production in October, November and December 2000. As the "Eight or the Gate" rule was not implemented until January 2001, he could not have been terminated pursuant to this policy. Therefore, he was not similarly situated to Martinez, and his termination should not be used to show similar treatment. See Okoye v. University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991) (Employees may be considered "similarly situated" if their circumstances are nearly identical.).
Martinez also complains of Vino Neyati ("Neyati"). She does not, however, contend that he was treated differently because he is male but rather she implies that he was treated differently because he is of Middle Eastern descent:
Also, Martinez personally knew that the sales of Vino Neyati must be fabricated. Vino Neyati could not sell a glass of water to someone in a desert. Mr. Neyati received all of his sales from Parrish Vasipour. Both Mr. Vasipour and Neyati were Middle Eastern people. Neither Vasipour nor Voss, nor Peyton ever gave Martinez any sales.
Pl. Br. at 8. That Neyati may have been treated differently because of his national origin is of no moment to the issues before the court, as Martinez makes no claim of discrimination based on national origin.
Martinez's brief, the majority of which is a verbatim restatement of her affidavit, is not a model of pellucid draftsmanship. After having already discussed the male co-workers who were allegedly treated differently than she, Martinez reurges her point later in her brief but adds a sentence with two new names, Ben Osborne ("Osborne") and Jose Sandoval ("Sandoval"): "Martinez personally knew as well that Ben Osborne and Jose Sandoval had similar problems in January and February, 2001 and they were not fired in March." Pl. Br. at 12; Pl. App. at 5. The court does not know what Martinez means by "similar problems." One could take the "similar problems" language to mean low sales production. Using this language, however, to show different treatment is tenuous, at best, because she does not provide the number of vehicles each sold. The competent summary judgment evidence establishes that although both Osborne and Sandoval failed to sell the requisite number of vehicles in February 2001, they did do so in both January and March 2001, and thus were not in violation of the "Eight or the Gate" rule. Accordingly, there is no competent summary judgment evidence that Osborne and Sandoval were treated more favorably than Martinez.
The competent summary judgment evidence establishes that the "Eight or the Gate" rule was uniformly applied. Specifically, the competent evidence reveals that Gallo sold three and one-half vehicles in May 2001 and was placed on probation. In June 2001, Gallo took vacation leave and was given credit for three sales pursuant to dealership policy. His total sales for June 2001 was eight and one-half vehicles, consisting of three credit sales and five and one-half actual sales. As he met the sales quota for June 2001, he was taken off of probation. In August 2001, Gallo sold only three and one-half vehicles. He was again placed on probation. He, however, resigned in August 2001. Moreover, with respect to Arrott, the evidence establishes that he sold six and one-half vehicles in January 2001. In February 2001, he sold only one and one-half vehicle but he also took an authorized leave of absence. Consequently, his sales figures for February 2001 did not apply to the "Eight or the Gate" rule. Upon returning in March 2001, he satisfied the required sales quota. Finally, with respect to Wilson, the evidence reveals that he sold five and one-half vehicles in February 2001, and three and one-half vehicles in March 2001. Wilson, however, was on medical leave in March 2001, and thus his sales figures for March 2001 did not apply to the "Eight or the Gate" rule. Upon his return in April 2001, he sold the required number of vehicles. Thus, the summary judgment evidence does not establishes that Martinez was treated less favorably than Gallo, Arrott and Wilson. Because Martinez cannot establish that others similarly situated were more favorably treated, she cannot establish a prima facie case. As there is no genuine issue of material fact, Prestige Ford is entitled to judgment as a matter of law on Martinez's sex discrimination claim.
Martinez objects to, among other things, the affidavit of Charlie Nixon ("Nixon") and the document attached to it. She contends that Nixon's entire affidavit is conclusory and based on hearsay. The court disagrees. Nixon is the General Manager of Prestige Ford. He states in his affidavit that he has personal knowledge of the employment and sales policies at Prestige Ford and the hiring, transfer and termination of Prestige Ford employees. The court therefore overrules Martinez's objection. Martinez also objects to the document attached to Nixon's affidavit, contending that it violates Fed.R.Evid. 1006 and is hearsay. The document in question is a compilation of sales production for the used car department during the relevant time period. Martinez offers no details as to how the compilation violates Rule 1006. Further, Nixon states that he personally created and kept the compilation as part of his duties as the General Manager and that he has knowledge of the facts contained therein. Interestingly, Martinez offers as summary judgment evidence the same compilation to which she objects. See Pl. App. at 7. The court therefore overrules Martinez's objection. Lastly, the court overrules Martinez's objections to Nixon's and Peyton's affidavits on the grounds that they are "interested parties." The court knows of no rule which requires exclusion of an affidavit because the affiant is an interested party. Moreover, Martinez's objection goes to credibility of a witness, and the court does not make credibility determinations when ruling on a motion for summary judgment. See Reeves, 530 U.S. at 150.
Martinez also contends that Gallo failed to achieve his sales quota in January and February 2001. Specifically, she contends that Gallo gave her his sales book because he knew she was being treated differently and that based on the information contained in that book, Gallo's sales production was so low that he should have been terminated in February 2001. Martinez provides neither Gallo's sales book nor an affidavit from Gallo. Prestige Ford objects to, among other things, the portion of Martinez's affidavit dealing with Gallo's conclusion that she was being treated differently and the sales production information contained in his sales book. Specifically, Prestige Ford contends that these statements are conclusory and hearsay. The court agrees and sustains Prestige Ford's objections. The court therefore will not consider these statements in reaching its ruling on Defendant's Motion for Summary Judgment.
Even if Martinez could establish a prima facie case, which she cannot, she has not demonstrated or created a genuine issue of material fact as to pretext or intentional discrimination. It is undisputed that she did not meet the minimum sales requirements in January and February 2001. It is also undisputed that the "Eight or the Gate" rule states that failure to sell eight vehicles while on probation will result in termination. Prestige Ford states that Martinez was removed from the used car sales department because of low sales production pursuant to the "Eight or the Gate" rule. Prestige Ford, thus, satisfies its burden of articulating a legitimate, nondiscriminatory reason for its actions. Martinez attempts to show pretext by contending that similarly situated male employees received more favorable treatment. As the court has previously explained, the summary judgment evidence establishes that not only were male employees not treated more favorably than Martinez but also that she was treated more favorably than her male counterparts. Martinez also makes several conclusory statements regarding the existence of material fact questions. For example, she states that "it is glaringly clear that this case involves a straight-up swearing match between the Plaintiff and the Defendant, as well as sorting out of the inconsistencies between the (sic) each of the defendant's representatives, and the outcome of the case depends on which witnesses are to be believed." Pl. Br. at 20. Martinez, however, provides no details, and while the "inconsistencies" may be glaring to her from a subjective viewpoint, they are not so glaring for the court. Without more detail, the court cannot determine that these alleged inconsistencies are sufficient to create a genuine issue of material fact. See Forsyth, 19 F.3d at 1533 (Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment.); see also Ragas, 136 F.3d at 458 (The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim.). The court will not guess or speculate regarding whether a genuine issue of material fact has been created. Further, Martinez conclusorily states that "Defendant departed from its usual practices when it failed to provide a warning to Plaintiff about her performance or experience prior to allegedly terminating her for these reasons." Pl. Br. at 22. Martinez does not cite to any evidence to support her contention. To the contrary, the evidence in the record establishes that she did receive a warning in December 2000 regarding her low sales production; nevertheless, her conclusory statements are insufficient to defeat summary judgment. See Forsyth, 19 F.3d at 1533. In short, Martinez fails to establish or create a genuine issue of material fact as to pretext or intentional discrimination, and the court determines that this is an alternative basis to deny her discrimination claim.
B. Retaliation
Martinez contends that her termination was in retaliation to the complaint she made to Reynolds regarding sex discrimination. The McDonnell Douglas burden-shifting framework is also applicable to retaliation claims. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Id.; Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id. Once the defendant does so, the inference of discrimination created by the prima facie case disappears, and the ultimate question becomes whether the protected conduct was the "but for" cause of the adverse employment action. Id.
"While this portion of the analysis may seem identical to the `casual link' step in the prima facie case, the burden here is more stringent." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir. 2001).
Prestige Ford contends that Martinez did not engage in protected activity under Title VII. It appears that Prestige Ford contends that only the filing of an EEOC charge would qualify as protected activity. See Def. Br. at 9-10. The court disagrees. To qualify as protected activity under Title VII, a complaint must relate clearly to discrimination covered by Title VII. Byers, 209 F.3d at 427-28. An employee has engaged in protected activity if she has (1) "opposed any practice made an unlawful employment practice by [Title VII]," or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). "[M]aking complaints to an officer of a company about discriminatory practices is a protected activity." Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 822 (S.D.Tex. 1998) (citing Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996)); see also Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir. 1996) (The court held that the plaintiffs' complaints to college officials regarding a hostile work environment and disparate treatment constituted protected activity under Title VII). Therefore, Martinez's December 2000 complaint to Reynolds regarding unequal treatment because of her sex qualifies as protected activity.
The court notes Martinez's utter failure to assist the court on this issue. Her response to Prestige Ford's contention consists of three sentences: "The Defendant does not claim Martinez did not complain of discrimination. Rather the claim is she did not file a charge before she was fired. This misses the mark." Pl. Br. at 17.
Prestige Ford objects to, among other things, the portion of Martinez's affidavit in which she discusses her December 2000 complaint to Reynolds on the basis that her statements are self-serving and conclusory. Martinez has adequately stated that she made a complaint of discrimination, and the court determines that that portion of her affidavit meets the evidentiary standards for admissibility. The court therefore overrules Prestige Ford's objection.
Prestige Ford next contends that Martinez cannot establish a prima facie case of retaliation because there was no adverse employment action. The court disagrees. As previously discussed, viewing the facts in the light most favorable to the nonmovant, the court determines that Martinez was terminated. As Prestige Ford does not contest the remaining elements of her prima facie case, the court determines that Martinez has established a prima facie case, that is, she engaged in protected activity when she complained to Reynolds; her termination occurred after her complaint; and a causal link exists between her termination and her complaint.
The court is frustrated by Plaintiff's briefing in this regard. In the discrimination portion of her brief, she contends, and supports with her affidavit, that she was terminated. In the retaliation portion of her brief, she not only argues that she was terminated but also that she was "essentially demoted" and that she was constructively discharged. Pl. App. at 17-18. Having already found that she was terminated, the court need not discuss her demotion and constructive discharge arguments. In the final analysis, whether she was terminated, demoted or constructively discharged is of no moment, as all three constitute adverse employment actions.
"A `causal link' is established when evidence demonstrates that `the employer's decision to terminate was based in part on knowledge of the employee's protected activity.'" Medina, 238 F.3d at 684 (quoting Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). Here, Martinez made the complaint of discrimination to Reynolds. Later, Peyton questioned her about the complaint. Thus, Peyton had knowledge of her protected activity at the time he removed her from the used car sales department. As her protected activity is not unwholly unrelated to her termination, the court determines that Martinez has met the "causal connection" element. Moreover, the temporal proximity between the protected activity and an adverse employment action can establish a causal connection. See Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001). Here, Martinez was terminated approximately three months after her complaint to Reynolds. Three months is sufficient to establish a causal link. See id. at 354 (The Evans court noted that retaliatory conduct occurring four months after the protected activity could create an inference of a causal connection.). For these reasons, the court finds that Martinez has established a causal link sufficient for her prima facie case.
The burden then shifts to Prestige Ford to articulate a legitimate, nonretaliatory reason for terminating Martinez. As discussed previously, Prestige Ford contends that Martinez was terminated pursuant to the "Eight or the Gate" rule for failing to sell the required number of vehicles. See supra. Therefore, Prestige Ford has satisfied its burden of articulating a legitimate, nonretaliatory reason for Martinez's termination.
Finally, the burden shifts to Martinez to establish, or raise a genuine issue of material fact, that Prestige Ford's articulated reason was merely pretext for retaliation. It appears that Martinez is relying on the timing of her termination to establish the ultimate issue of unlawful retaliation. Timing alone is insufficient to carry the day. Although the temporal proximity between a protected activity and an adverse employment action may establish a causal connection for purposes of a prima facie case, at this stage of her retaliation case, Martinez must establish that "but for" her complaint to Reynolds, she would not have been terminated. See Long, 88 F.3d at 308. She may do so by showing that the legitimate, nonretaliatory reason articulated by Prestige Ford is pretextual. See Evans, 246 F.3d at 355. Martinez presents no evidence to establish or create a genuine issue of material fact regarding pretext. Accordingly, Prestige Ford is entitled to summary judgment on Martinez's retaliation claim.
Specifically, Martinez's brief reads, in relevant part, as follows:
Martinez complained to Jerry Reynolds in December of the different treatment she received. Then she is confronted by the managers. She is disciplined in December. To make it look good, the Defendant allegedly documents the men. The men are not on the Exhibit {A} [.] The pay record reflects Martinez is fired in February but then a job working outside is allegedly offered. Then Martinez is fired.
Pl. Br. at 17.
Under the heading "Pretext/Retaliation: The Defendant's Hostile Reaction," Martinez states that "[t]he Fifth Circuit has noted that evidence of an employer's hostile reaction to an employee's complaints of discrimination support[s] a claim for retaliation" and cites, Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994), in support of this position. Pl. Br. at 22. This sentence and case citation are the sum total of her pretext argument and is of no assistance to the court. First, the language of Grizzle is merely dicta and is therefore not precedent. Second, assuming that this were a correct statement of the law, Martinez wholly fails to explain how such an abstract statement applies to the facts of this case. Clearly, Martinez has not carried her burden of establishing or raising a genuine issue of material fact regarding the ultimate issue of unlawful retaliation.
C. The Parties' Objections to Summary Judgment Evidence
Martinez and Prestige Ford have filed several objections to certain summary judgment evidence. The court has already ruled on some of these objections. As for the remaining objections, the court has previously set forth the applicable standard for competent summary judgment evidence. If the summary judgment evidence did not meet the standard, the court did not consider it, and such evidence played no part in the court's ruling. The court therefore overrules as moot Prestige Ford's objections to Plaintiff's summary judgment evidence; denies as moot Prestige Ford's motion to strike Plaintiff's summary judgment evidence; and overrules as moot Martinez's objections to Defendant's summary judgment evidence.
The court takes this approach because the parties have a myriad of objections between them. For the court to address each objections separately would unnecessarily consume an inordinate amount of time and scare judicial resources.
D. Plaintiff's Motion for Leave to File Sur-Reply
Plaintiff request leave to file a sur-reply to address the affidavits of Rosalinda Holmes and Mike Voss, which were not included in Defendant's initial brief. The court has not relied on either affidavit in reaching its determination on Defendant's motion for summary judgment. The court therefore denies as moot Plaintiff's Motion for Leave to File Sur-Reply.
IV. Conclusion
For the above stated reasons, no genuine issues of fact exist with respect to Plaintiff's discrimination or retaliation claims, and Prestige Ford is entitled to judgment as a matter of law on these claims. Accordingly, the court grants Defendant's Motion for Summary. Plaintiff's claims are dismissed with prejudice. The court will issue judgment by separate document pursuant to Fed.R.Civ.P. 58.