Cruz v. Johnson

MOTION for Summary Judgment

E.D. Tex.August 3, 2016

Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION JOSEPHINE CRUZ, § § Plaintiff, § § v. § CIVIL NO. 4:15-cv-00302-ALM § JEH JOHNSON, Secretary of the U.S. § Department of Homeland Security, § § Defendant. § DEFENDANT JEH JOHNSON’S MOTION FOR SUMMARY JUDGMENT ISSUE After having already engaged in a series of inappropriate and unprofessional outbursts and having received two written warnings for her conduct while working at FEMA, Josephine Cruz got really upset with a contract custodian about the amount of time it was taking her to clean the ladies’ room nearest her cubicle. Even though that room was closed for cleaning and there was another down the hall, Cruz decided to duck under the bar set up on the closed restroom and do her business, berating the custodian all the while from the stall. When confronted about her behavior Cruz told supervisors that she had to use the closed restroom because she had a bout of sudden- onset diarrhea, but she admitted to her coworkers that that was a lie — she was really just mad at the custodian and wanted to prove a point. Cruz was terminated, and now in federal court Cruz claims that she was terminated because of her race and her EEO history. The issue is whether FEMA is entitled to summary judgment on the claims given that there is no evidence that FEMA terminated Cruz for an improper reason. Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 1 of 19 PageID #: 114 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 2 STATEMENT OF UNDISPUTED MATERIAL FACTS A. Cruz’s employment with FEMA and initial reports of problems In October 2008 Cruz was hired as a human services specialist assigned to work at FEMA’s National Processing Service Center in Denton, Texas. Ex. A, Cruz Depo. 11. Her job was to take applications from disaster victims and to work the cases to ensure that eligible victims got federal relief. Id. Cruz’s position was a temporary, two-year term appointment subject to renewal. Id. & Depo. Ex. 2.1 She had many different supervisors throughout her time at FEMA, as employees typically rotated among supervisors several times a year. Id. at 12-13. For the most part Cruz’s work performance at FEMA was adequate and sometimes good, but throughout her time at FEMA Cruz exhibited strange, argumentative, rude, disruptive, and childish workplace behavior. Id. at 30-33, 39, 62- 65; Ex. B, Cruz EEO Depo. 59; Ex. H, Tonya Johnson Decl. ¶ 10. In the March 2010 timeframe her coworkers complained to management that Cruz, among other things, made rude and snide comments to them, told them that she did not like them, repeatedly told them to “shut up” or “shushed” them; made derogatory comments about their weight, and engaged in other erratic outbursts. Ex. C, Gomes Decl. ¶ 2 & Attach. 1, at pp 36-39. It got so bad that some employees told management that they felt that Cruz was creating a hostile work environment, and some thought she was so unstable that she posed a physical danger to the workplace. Id. at pp. 36, 39-40. In an effort to diffuse the rising tensions, in March 2010, Brenda Gomes, then Cruz’s second-line supervisor, called a meeting to address various concerns that had 1 The referenced deposition exhibit is attached to the end of the deposition excerpts found at Exhibit A to this motion. Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 2 of 19 PageID #: 115 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 3 been raised and to express management’s expectations for workplace conduct. Ex. C, Gomes Decl. ¶ 2 & Attach. 1, pp. 1-10. Gomes had earlier met with the EEO officer, Mary Swann, to discuss the proposed team meeting. Id. & Attach. 1, pp. 2-3. Swann approved the meeting and the topics to be discussed at it. Id. At the meeting Gomes stressed, among other things, that team members should take care to speak with each other in a professional manner and not be rude or disrespectful; that they should be team players; that they should not eat at their workstations; that harassing and taunting others was unacceptable; and that employees should follow the golden rule. Id. & Attach. 1 at pp. 3-10. B. Cruz receives two written warnings — the “breakroom” and “pineapple” incidents Cruz received two written warnings while at FEMA. The first arose out of an incident in the breakroom on September 23, 2010. Ex. A, Cruz Depo. 24-37; Ex. D, 10.6.10 Written Warning. Cruz had entered the breakroom while others were sitting around talking and enjoying the television that was on. Id.; Ex. E, Rice Decl. ¶ 2 & Attach. 1. At the time she entered Cruz was on her personal cell phone talking with a manager at the local library about a personal matter — she needed to renew some materials. Ex. A, Cruz Depo. 27-28. According to Cruz, she could not hear her interlocutor on the phone, so she asked several times whether she could turn the television volume down, and when no one responded Cruz turned it down herself. Id. at 25-26. She then claims that a “thin Hispanic guy” from the quality control department yelled at her and turned the volume back up. Id. at 29-30; Ex. B, Cruz EEO Depo. 51. Cruz responded that she was on a “business” call that she needed to finish and lowered the volume back down. Id. Then Cruz claims that Joyce Graham, Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 3 of 19 PageID #: 116 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 4 another employee from the quality control department, came at her and got in her face and then went to turn the volume back up, which Cruz then proceeded to turn back down, followed by Graham turning it back up. Ex. A, Cruz Depo. 25-27. Cruz ended up leaving the breakroom and later reported the incident, complaining of Graham. Ex. B, Cruz EEO Depo. 52. The security department investigated. Ex. E, Rice Decl. ¶ 2 & Attach. 1. Four different employees who were in the breakroom that day reported that no one had heard Cruz ask permission to turn the TV volume down. Id. No one supported Cruz’s version of events, and no one saw Graham approach Cruz in a threatening way. Id.; Ex. A, Cruz Depo. 36. One of the witnesses, Ronda Reese, said that Cruz had tried to get her to say that Cruz had asked permission to turn down the volume, but Reese refused to lie, saying to Cruz: “No, you did not ask to turn the television down, you just did it.” Ex. E, Rice Decl. ¶ 2 & Attach. 1, p. 8. The security officer, Taylor Rice, deemed the “incident as a Level 1 workplace violence incident.” Id. at ¶ 2 & Attach. 1, at pp. 1-2. Cruz’s first-level supervisor at the time was Shrea Catlin. On October 6, 2010, Catlin issued Cruz a written warning charging her with being disruptive and inappropriate in the breakroom and with submitting an unfounded or false allegation to security about a fellow employee (Graham). Ex. D, 10.6.10 Warning Letter. The letter also charged Cruz with failure to follow a supervisor’s instruction. Id. The latter allegation dealt with a quality control review that Cruz had received and disagreed with and wanted to appeal. Id. Cruz’s supervisor, Catlin, charged that she (Catlin) had expressly instructed Cruz to follow the chain of command regarding the appeal process but that Cruz disobeyed the instruction. Id. Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 4 of 19 PageID #: 117 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 5 On February 17, 2012, Cruz received another written warning arising out of a verbal altercation that had occurred on January 24, 2012, between Cruz and another employee, Christina Morris-Walker. Ex. F, Tammie Johnson Decl. ¶ 2 & Attach. 1 The dispute evidently arose out of a comment Cruz had made after Morris-Walker had offered another co-worker some pineapple that she had brought to work with her but did not offer Cruz any. Id. In the warning letter Cruz’s supervisor at the time, Tammie Johnson, concluded that Cruz had “used offensive and discourteous language” by telling Morris-Walker to “shut up dam[m]it.” Id. Tammie Johnson also issued a written warning to Morris-Walker, an African-American, for her role in the incident. Id. & Attach. 2; Ex. A, Cruz Depo. 111. C. The December 19, 2012 bathroom incident On December 19, 2012, after getting to work for her shift at around 3:30 p.m., Cruz immediately went to use the restroom on the north wing2 of the second floor where she worked. Ex. A, Cruz Depo. 62-63; Ex. H, Tonya Johnson Decl. ¶ 12 & Attach. 5, at p. 4. The custodian, Sarah Billingsley was there; Billingsley was not a FEMA employee but a contracted custodian. Id.; Ex. F, Tammie Johnson Decl. ¶ 3. Cruz’s account of what happened next has shifted over time. Cruz said in her original statement that she noticed that the restroom was closed for cleaning and that after she knocked on the restroom door and saw Billingsley on her cell phone and not cleaning. Ex. H, Tonya Johnson Decl. ¶ 12 & Attach. 5, at p. 4. Cruz said that she asked Billingsley how long she would be to clean but that Billingsley did not respond because she was on her cell phone. Id. In her deposition in this case, however, Cruz 2 At Cruz’s deposition this restroom was referred to as the “east” wing, but technically it is the north wing. Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 5 of 19 PageID #: 118 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 6 testified that when she went to use the restroom there was no bar with a “closed for cleaning” sign on the door and that when she asked Billingsley how long it would take her to clean Billingsley said “maybe like another . . . 10 to 15 minutes.” Ex. A, Cruz Depo. 63. In any event, Cruz walked down the hall to use the restroom on the west side of the second floor, where she “urinated.” Id. at 62-63. Irked about having to walk down the hall, as she was returning to her cubicle Cruz ran into her former supervisor, Tammie Johnson, and complained that the custodian (Billingsley) cleaning the north- side restroom was taking too long to clean and was talking on her cell phone. Ex. A, Cruz Depo. 67-68. Tammie Johnson told Cruz to just use the open restroom down the hall if she needed to. Ex. F, Tammie Johnson Decl. ¶ 3. Nevertheless, Cruz went back to the north restroom about 15 minutes later. Ex. A, Cruz Depo. 63-64. This time Cruz is certain that there was a bar across the door with the “closed for cleaning” sign displayed. Ex. A, Cruz Depo. 69-70. It looked something like this: Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 6 of 19 PageID #: 119 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 7 Id. at 69; Ex. G, Restroom Picture. Cruz ducked under the bar, went into a stall, and used the restroom anyway. Ex. A, Cruz Depo. 63-64, 69-70. She scolded Billingsley for being on her cell phone, saying that if Billingsley had been cleaning instead of talking it wouldn’t have taken her so long. Id. at 64-65; Ex. H, Tonya Johnson Decl. ¶ 12 & Attach. 5, at pp. 1-3. According to Billingsley, Billingsley responded, “probably not as nice as I should have been,” that one of the reasons it was taking so long was because of all the stains on the toilets and such. Id. Billingsley said that Cruz just kept yelling “Shut up! Shut up, Stupid!” at her from inside the stall. Id. Billingsley emerged from the restroom distraught and later had an asthma attack. Id.; Ex. F. Tammie Johnson Decl. ¶ 3; Ex. H, Tonya Johnson Decl. ¶ 11. Tonya Johnson, Cruz’s then-first-level supervisor, investigated. Id. at ¶ 12. She took statements from various witnesses. Cruz claimed that she used the closed restroom because she had diarrhea and had “started feeling that . . . my stool was going to come out and I didn’t have the time to go downstairs or go to the other end of the hallway.” Ex. A, Cruz Depo. 63; Ex. H, Tonya Johnson Decl. ¶ 12 & Attach. 5, at p. 4. Cruz also said that when she was in the stall another co-worker, Roseann Patterson, came inside and used the stall next to her, even though Cruz never saw Patterson in the restroom herself. Ex. A, Cruz Depo. 70, 75. No one backed up Cruz’s version of events. Roseann Patterson said that she was not in the restroom but was standing outside when she saw Cruz go in. Ex. H, Tonya Johnson Decl. ¶ 17 & Attach. 5, at p. 6. Patterson said that she could hear Cruz complain to Billingsley that “she [Cruz] had been waiting for twenty minutes” to get in. Id. Tinneanett Thompson reported that, right before the incident occurred, Cruz had grumbled to her about Billingsley and “then started using profanity and said that Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 7 of 19 PageID #: 120 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 8 she wasn’t going to walk down to the other rest room then she said I’m going in the rest room anyway while the cleaning person was in there.” Id. at Attach. 5, p. 12. Ruth Phleuger, in her statement, said that she was just outside the restroom when the thing went down and that she heard Billingsley shout: “I can’t disinfect the room with you in here!” and that the other person in the restroom, whom she could not see but later discovered was Cruz, “shout[ed] back, ‘Well, I have to p_s!.” Id. at Attach. 5, p. 11 (emphasis in statement). Pfleuger went on: “I would like to say that this person [Cruz] is dangerous. She has caused, and is continuing to cause, a hostile work environment for some employees, and, in my opinion, she is very volatile.” Id. Cruz’s close friend and “sidekick,” Patty Rose, Ex. A, Cruz Depo. 15, along with another co-worker, Charlotte Malone, told Tonya Johnson that Cruz had actually admitted to them after the incident, while the three were out on the smoke dock, that she did not really have diarrhea but that she had barged into the restroom because she was angry that the custodian was taking what she thought was too long to clean. Id. at Attach. 5, pp. 7, 8. According to Rose and Malone, Cruz laughed the whole thing off, saying that she had just told Tonya Johnson the diarrhea story as an excuse for what she had done. Id. D. FEMA terminates Cruz’s employment; Cruz files an EEO complaint; the EEOC grants summary judgment for FEMA. After investigating the incident and reviewing Cruz’s past disciplinary record and history of engaging in other unprofessional conduct, Tonya Johnson proposed that Cruz’s employment with FEMA be terminated. Id. at ¶ 12. Brenda Gomes assembled materials supporting the termination decision and sent it to FEMA headquarters for review. Ex. C, Gomes Decl. ¶ 6 & Attach. 4. Once headquarters signed off on the Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 8 of 19 PageID #: 121 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 9 action Cruz’s third-level supervisor, Phyllis Paton, reviewed the matter and decided that Cruz’s termination was proper. Ex. I, Paton Decl. ¶ 2. FEMA terminated Cruz on March 7, 2013. Ex H, Tonya Johnson Decl. ¶ 13. The original termination letter contained some incorrect information, however, so a revised letter, dated two days later, was prepared and mailed to Cruz. Id. & Attachs. 7, 8. The termination notice charged Cruz with lack of candor, unprofessional conduct, and failure to follow instructions. Id. at Attach. 8. Cruz filed a formal EEO complaint complaining of the “wrongful termination.” Ex J, Wallace Decl. ¶ 5 & Attach. 6. She alleged that the action was taken because of her national origin, retaliation, and “harassment.” Id. An EEOC administrative judge issued a summary decision finding that FEMA was entitled to judgment as a matter of law on all claims. Ex. L, EEOC Summary Decision. SUMMARY JUDGMENT LEGAL STANDARD The Court should grant summary judgment if the record shows that no genuine issue of material fact exists. Fed. R. Civ. P. 56. The movant must point to parts of the record showing the absence of a material fact issue. Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 191 (5th Cir. 1990). If the movant does this, then the non- movant must come forward with “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-movant offers only weak evidence on an element essential to her claims, then summary judgment is proper. Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994). Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 9 of 19 PageID #: 122 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 10 ARGUMENT 1. FEMA is entitled to summary judgment on Cruz’s Title VII race- discrimination and retaliation claims. A. Legal framework Cruz alleges that FEMA violated Title VII by terminating her, not because she had violated a workplace rule by entering a closed restroom and then lying to management about her reason for doing so, but because she is Hispanic (race/national origin discrimination, referred to throughout simply as “race”) and because she had engaged in protected activity in the past (retaliation). Because Cruz has no evidence of direct discrimination, she must resort to the McDonnell Douglas burden-shifting framework that applies to discrimination and retaliation claims in summary-judgment cases. The plaintiff must first establish a prima facie case of discrimination or retaliation. If the plaintiff does this then a burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. If the employer does this, then the burden shifts back to the plaintiff to show, for discrimination claims, that either (1) the reason the employer gave for the challenged employment decision is not true but is really a pretext for unlawful discrimination (pretext alternative); or (2) the reason given by the employer is true but that the plaintiff’s protected characteristic was a motivating factor for the decision (mixed-motives alternative). See Glaskox v. Harris County, Texas, 537 F. App’x 525, 528 (5th Cir. 2013). There is no “mixed motives” retaliation claim under Title VII. Univ. of Tex. Sw. Med. Ctr. v. Nassar, -- U.S. --, 133 S.Ct. 2517, 2534 (2013). The plaintiff must show that the employer’s stated reason for the challenged decision is really a pretext for retaliation, “which the employee accomplishes by showing that the adverse action would not have occurred ‘but for’ the employer’s retaliatory motive[.]” Feist v. La. Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 10 of 19 PageID #: 123 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 11 Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013). “[T]o avoid summary judgment, the plaintiff must show ‘a conflict in substantial evidence’ on the question of whether the employer would not have taken the action ‘but for’ the protected activity.” Id. B. Cruz cannot establish a prima facie case of discrimination or retaliation. (i) Race discrimination To make out a prima facie case of race discrimination Cruz must show that she: (1) was a member of a protected class; (2) was qualified; (3) suffered an adverse employment action; and (4) was treated less favorably — because of her race — than other similarly situated employees of a different race, “under nearly identical circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). Cruz cannot establish the fourth element: she simply has no evidence that FEMA treated her differently than any other non-Hispanic person “under nearly identical circumstances.” Id. She must show that the employees being compared held the same job or the same basic responsibilities, shared the same supervisor or had their employment status determined by the same person, and had similar violation histories as her. Id. at 260. “And, critically, the plaintiff’s conduct that drew the adverse employment decision must have been ‘nearly identical’ to that of the proffered comparator who allegedly drew dissimilar employment decisions. If the difference between the plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer, the employees are not similarly situated for the purposes of an employment discrimination analysis.” Id. (quotation marks and citations omitted) (emphasis in original). Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 11 of 19 PageID #: 124 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 12 It would be difficult to find an employee anywhere, let alone at FEMA- Denton, that had the number of unprofessional behavior-related issues that Cruz did during her time at FEMA. As noted in her termination letter, Cruz had at least 10 prior instances of such behavior documented in her file. Ex. H, Tonya Johnson Decl. ¶ 12 & Attach. 6. She had received two formal written warnings. One was for creating an entirely avoidable disturbance in the breakroom because she had decided that her personal phone call with the library was more important than her fellow employees’ enjoyment of the television while on their break — and then falsely telling management that another employee had threatened her over the incident. Ex. D, 10.6.10 Written Warning. The other written warning was for arguing with and cursing at a fellow employee on the floor over a pineapple dispute. Ex. F, Tammie Johnson Decl. ¶ 2 & Attach. 1. The last straw was the December 2012 “bathroom incident,” where Cruz angrily fixated on the amount of time the contractor-custodian was taking to clean the bathroom and decided, out of spite, to duck under a bar across the door with a “Closed for Cleaning” sign and use the restroom anyway, all while verbally accosting the custodian and throwing the custodian into an asthma attack. Ex. H, Tonya Johnson Decl. ¶ 12 & Attach. 5. That wasn’t even the worst part. The worst part was (as it frequently is) the lie. Realizing that she had exercised poor judgment in the matter, Cruz decided to tell her supervisors that the reason she went in the closed restroom as opposed to the open one down the hall was because she had a “medical emergency” — diarrhea — when in fact she did not. Her co-workers — one of whom was one of Cruz’s closest friends — told management that Cruz had bragged to them about how Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 12 of 19 PageID #: 125 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 13 she had pulled one over on management by telling the “diarrhea” story. Id. at Attach. 5, pp. 7, 8; Ex. K, Malone Aff. ¶ 10. The point of reciting these facts is to demonstrate that Cruz faces a tall order to find another FEMA employee outside her protected class who did similar things but was treated differently. Not surprisingly, she admitted at her deposition that she knows of no other employee who, like her, had received at least two written warnings, was found to have violated a workplace rule, and was found to have lied to FEMA management. Ex. A, Cruz Depo. 112. Because Cruz cannot make out a prima facie case of race discrimination, FEMA is entitled to summary judgment on the Title VII discrimination claim. ii). Retaliation Cruz also alleges that she was terminated because of her prior EEO activity. To establish a prima facie case of retaliation, Cruz must show: (1) that she engaged in activity protected by Title VII; (2) that FEMA took an adverse action against her; and (3) a causal link existed between the protected activity and the termination. Aryain v. Wal-Mart Stores, 534 F.3d 473, 484 (5th Cir. 2008). Cruz cannot make out a prima face case of retaliation because she has no evidence of the third element — there simply is no connection between her termination and any protected activity she had engaged in. The supervisor who set the termination in motion, Tonya Johnson, did not even know that Cruz had engaged in any EEO activity. Ex. H, Tonya Johnson Decl. ¶ 14; Ex. A, Cruz Depo. 28-29; Ex. B, Cruz EEO Depo. 88. And even if Brenda Gomes, who assembled a packet of materials supporting the termination, and Phyllis Paton, who finally approved the Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 13 of 19 PageID #: 126 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 14 termination, knew that Cruz had engaged in EEO activity in the past, there is no evidence linking that knowledge with the termination. And from the time of Cruz’s termination in March 2013: over 40 months passed from Cruz’s informal EEO counseling in October 2009; nearly 36 months passed from Cruz’s informal EEO counseling in March 2010; nearly 28 months passed from Cruz’s formal EEO complaint in November 2010; and nearly 13 months passed from Cruz’s informal EEO counseling in January 2012. Ex. J, Wallace Decl. ¶¶ 3, 4 & Attachs. 1, 2. Those periods are too long to support an inference of unlawful retaliation without any other evidence, and here there is nothing else. See Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002) (five months is too long); Gibson v. Verizon Servs. Org., 498 F. App’x 391, 397 (5th Cir. 2012) (seven months is too long). Because Cruz cannot establish a prima facie case of discrimination or retaliation, the Court need go no further. FEMA is entitled to summary judgment on the discrimination and retaliation claims. C. FEMA had a legitimate, non-discriminatory reason for terminating Cruz, and there is no evidence of pretext or that race played a part in the termination decision. Even if Cruz could demonstrate a prima facie case of race discrimination or retaliation, FEMA unquestionably had a legitimate business reason for the termination: as the termination letter said, given Cruz’s unprofessional conduct on December 19, 2012, the lie she told about it, and her history of doing similar-type things, management could no longer trust that Cruz could conduct herself in “an appropriate and professional manner.” Ex. H, Tonya Johnson Decl. ¶ 13 & Attach. 8. Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 14 of 19 PageID #: 127 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 15 D. Cruz cannot raise a fact issue as to pretext (discrimination or retaliation) or mixed motives (discrimination). Nor could any reasonable person find that the reasons FEMA gave for Cruz’s termination were false and that the real reason the agency fired her was because she was Hispanic or because of her prior EEO activity. Cruz was Hispanic when she was hired and remained so over the course of her four-plus years at the agency, and she started going to the EEO office back in 2009. Ex. J, Wallace Decl. ¶ 3 & Attach. 1. Yet during all this time her supervisors gave her (by and large) favorable evaluations, awards, within-grade increases, and renewals on her two-year terms of employment. Ex. B, Cruz EEO Depo. 59; Ex. M, Dowling Decl. ¶ 2 & Attachs. 1-4. It was only after the December 2012 “bathroom incident” — where Cruz flouted a supervisor’s instruction not to go into a closed restroom so that she could confront the custodian and then lied about why she did so — that Cruz faced termination. Ex. F, Tammie Johnson Decl. ¶ 3. No rational trier of fact could find that Cruz’s race or prior EEO activity — rather than Cruz’s unprofessional conduct, lack of candor, and failure to follow instructions — was the reason for the termination. Nor could any rational trier of fact find that Cruz’s race was a motivating factor in the termination decision. It had nothing to do with it. See Ex. H, Tonya Johnson Decl. ¶ 14; Ex. C, Gomes Decl. ¶ 8; Ex. I, Paton Decl. ¶ 3. 3. FEMA is entitled to summary judgment on any hostile-work environment claim Cruz may be bringing. FEMA can’t tell whether Cruz is bringing an independent claim for hostile- work environment or whether her complaint makes references to a hostile-work environment simply as background for her discrimination and retaliation claims. In Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 15 of 19 PageID #: 128 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 16 setting forth her legal claims Cruz alleges that “[t]his is an employment discrimination [sic] for wrongful termination because of prohibited employment discrimination and retaliation under 41 [sic] U.S.C. § 2000e-16.” Am. Compl. (doc. 19) ¶ 16. No mention is made of hostile-work environment. Because, as demonstrated above, Cruz was terminated for a legitimate reason and not because of discrimination or retaliation, it is hard to see where any hostile-work environment claim fits in (Cruz is not claiming constructive discharge). In any event, any independent hostile-work environment Cruz may be bringing fails for two basic reasons. First, Cruz failed to administratively exhaust such a claim. Before a federal employee can bring a Title VII claim in federal court, she must first exhaust administrative remedies by filing a charge of discrimination with the EEO office of the employing agency. 42 U.S.C. § 2000e-16(c); Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th Cir. 1998); Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990). At her deposition Cruz identified only two reasons why she thinks that the work environment at FEMA was hostile. Ex. A, Cruz Depo. 113. The first reason dealt with events that occurred in early 2010. Id. During this time Cruz went to see the EEO counselor (Mary Swann) because she “felt offended” because some of the coworkers on her team went to lunch together without asking her, and she felt excluded. Id. at 96-97. And Cruz thought that her second-level supervisor at the time, Brenda Gomes, put her in a hostile environment by calling a meeting that took place on March 26, 2010. Id. Gomes had called the meeting in part because, ironically enough, several of Cruz’s coworkers had complained that Cruz was creating a hostile- work environment because she was treating them terribly. Ex. C, Gomes Decl. ¶ 2 & Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 16 of 19 PageID #: 129 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 17 Attach. 1. In any event, the relevant point here is that while Cruz evidently sought EEO counseling arising out of those events, Ex. A, Cruz Depo. 96-97, she never filed a formal EEO complaint and thus never saw the administrative process through to completion. She admits that she withdrew the complaints. Id. at 98-99. And by withdrawing them she did not exhaust them. Bowers v. Nicholson, 271 F. App’x 446, 448-49 (5th Cir. 2008). The only other reason Cruz thought the work environment was hostile was because of the so-called “breakroom” incident that happened in September 2010. Ex. A, Cruz Depo. 113. That was the incident where Cruz went into a breakroom and turned down the volume of the television that her fellow coworkers were enjoying because she was on a personal phone call with the library that she thought was more important. See generally Ex. E, Rice Decl. ¶ 2 & Attach. 1. Cruz did file a formal EEO complaint surrounding the incident, Ex. J, Wallace Decl. ¶ 4 & Attachs 2, 3, but she later withdrew it. Ex. A, Cruz Depo. 105. So she did not exhaust that claim, either. Bowers, 271 F. App’x at 448-49. So any independent hostile-work environment claim Cruz may be bringing here must be dismissed. And even if Cruz had exhausted, the claims are frivolous on their face. To show that she was subjected to a hostile-work environment, Cruz must show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment was based on her membership in a protected class; (4) that the harassment affected a term, condition, or privilege of employment and (5) that FEMA knew or should have known of the harassment and failed to take prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). “For harassment on the basis of race to affect a term, condition, or privilege of Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 17 of 19 PageID #: 130 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 18 employment [] it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. (quotation marks and citation omitted). “[T]he Supreme Court has warned that these high standards are intentionally demanding ‘to ensure that [federal discrimination laws] do [] not become a ‘general civility code,’ and when properly applied, they will filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language.’” Howard v. United Parcel Serv., 447 F. App’x 626, 632 (5th Cir. 2011) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Cruz cannot establish elements two through five. In no sense can either the alleged failure to receive a lunch invitation from a coworker or having to attending a team meeting designed to make the work environment better be considered “unwelcome harassment.” And they certainly cannot be considered unwelcome harassment based on race. See Hernandez v. Yellow Transp. Inc., 670 F.3d 644, 652 (5th Cir. 2012) (“A wide range of behavior can make a workplace uncivil, but these plaintiffs must show as one of the factors for their Title VII claims that the events were based on race”). Nor were those isolated events pervasive or severe enough to make the work environment abusive. Cruz actually testified that she enjoyed her job and the working conditions at FEMA; that she “got along with everybody;” and that she had good relationships with her supervisors. Ex. A, Cruz Depo. 9, 15. Nor could any reasonable person find the September 2010 “breakroom” incident as evidence of a hostile-work environment. Even if everything Cruz says is true — that she asked for and received permission to turn the television volume down but that her colleagues did not react warmly once she actually turned down the volume — this is exactly the sort of “ordinary tribulation of the workplace” that is not Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 18 of 19 PageID #: 131 Defendant Jeh Johnson’s (FEMA’s) Motion for Summary Judgment — Page 19 enough to make out an actionable hostile-work environment claim. Faragher, 524 U.S. at 788. Nor did the affair have anything to do with Cruz’s race; in fact Cruz testified that one of the co-workers who turned the volume back up and “yelled” at her was Hispanic. Ex. A, Cruz Depo. 28-30. CONCLUSION For these reasons the Court should grant this motion and dismiss all of Cruz’s claims with prejudice. Respectfully submitted, JOHN M. BALES UNITED STATES ATTORNEY EASTERN DISTRICT OF TEXAS /s/ Bradley Visosky Bradley Visosky Assistant U.S. Attorney Texas Bar No. 24034727 101 E. Park Blvd., Suite 500 Plano, Texas 75074 (972) 509-1201 (972) 509-1209 (fax) bradley.visosky@usdoj.gov ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I certify that on August 3, 2016, a true copy of this document will be served on plaintiff’s counsel through use of the Court’s electronic-notification system. /s/ Bradley Visosky Bradley Visosky Case 4:15-cv-00302-ALM Document 27 Filed 08/03/16 Page 19 of 19 PageID #: 132 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION JOSEPHINE CRUZ, § § Plaintiff, § § v. § CIVIL NO. 4:15-cv-00302-ALM § JEH JOHNSON, Secretary of the U.S. § Department of Homeland Security, § § Defendant. § ORDER The Court GRANTS Defendant Jeh Johnson’s Motion for Summary Judgment and DISMISSES all of Plaintiff Josephine Cruz’s claims against the defendant with prejudice. Costs shall be awarded to the defendant. Case 4:15-cv-00302-ALM Document 27-1 Filed 08/03/16 Page 1 of 1 PageID #: 133