Moore v. Capital One NA

MOTION for Summary Judgment

N.D. Tex.October 7, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CAROLYN A. MOORE, Plaintiff, v. CAPITAL ONE, N.A., Defendant. § § § § § § § § § § CIVIL ACTION NO. 3:14-cv-03282-D DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT THEREOF ANGELA CLANTON GREEN Texas Bar No. 24040695 Angela.Green@ogletreedeakins.com AMANDA A. WILLIAMS Texas Bar No. 24065281 Amanda.Williams@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, Texas 75225 Telephone: (214) 987-3800 Facsimile: (214) 987-3927 ATTORNEYS FOR DEFENDANT CAPITAL ONE, N.A. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 1 of 58 PageID 590 i TABLE OF CONTENTS I. SUMMARY ................................................................................................................................ 1 II. STATEMENT OF UNDISPUTED MATERIAL FACTS .................................................... 3 A. Plaintiff has a litigious history, including asserting the same or substantially similar discrimination claims against a former employer. ............................................ 3 B. Capital One hires Plaintiff as a Clerical Associate working in Capital One’s Vault department. ............................................................................................................. 3 C. Despite receiving repeated and consistent feedback year after year that Plaintiff needed to improve her performance in the areas of communication and influence, she fails to do so................................................................................................ 5 D. Plaintiff continues to demonstrate she is unqualified to be a Team Lead and her performance is criticized as being inconsistent, including in the areas of influence and communication, by a new manager. ........................................................ 6 E. Capital One conducts a thorough investigation into Plaintiff’s race and age discrimination, harassment, and retaliation claims, including interviewing several witnesses but was unable to substantiate Plaintiff’s claims.............................. 9 F. Plaintiff files a Charge of Discrimination alleging race and age discrimination and retaliation.................................................................................................................. 10 G. Plaintiff receives another overall inconsistent rating on her 2013 performance review and continues to be unresponsive to management’s constructive feedback............................................................................................................................ 11 H. Capital One places Plaintiff on a 90-day Conduct Memo for inappropriate behavior and then on a 90-day Performance Improvement Plan for poor performance. .................................................................................................................... 14 I. Despite being given ample opportunity to self-correct her unacceptable performance and attitude, Plaintiff fails to do so, resulting in the termination of her employment. .............................................................................................................. 18 III. SUMMARY JUDGMENT STANDARD............................................................................ 20 IV. ARGUMENTS AND AUTHORITIES................................................................................ 20 A. Applicable burden-shifting analysis for Plaintiff’s race discrimination, age discrimination, and retaliation claims under McDonnell Douglas. ............................ 20 B. As a matter of law, Plaintiff cannot establish a race or age discrimination claim based on Capital One’s alleged failure to promote her to Team Lead in 2012. ........ 21 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 2 of 58 PageID 591 ii 1. Plaintiff cannot establish a prima facie case of race or age discrimination based on Capital One’s alleged failure to promote her to Team Lead because she has no evidence was qualified for the position. ................................................ 21 2. Capital One has articulated legitimate, non-discriminatory reasons for not promoting Plaintiff to Team Lead in 2012.............................................................. 23 3. Plaintiff cannot establish Capital One’s legitimate, non-discriminatory reasons for not promoting her to Team Lead in 2012 were pre-textual and the real reason was based on her race or age. ........................................................ 24 C. As a matter of law, Plaintiff cannot establish a claim for race discrimination or age discrimination based on Capital One’s alleged failure to provide her with Team Lead training or for terminating her employment............................................ 26 1. Plaintiff cannot establish a prima facie case of race or age discrimination because she has no evidence she was subjected to an adverse employment action, treated less favorably than other similarly-situated associates outside her protected classes, that Capital One replaced her, or that she was otherwise discharged because of age. ...................................................................... 26 2. To the extent the Court finds Capital One denied Plaintiff training opportunities needed to become a Team Lead, Capital One had legitimate, non-discriminatory reasons for doing so and for terminating Plaintiff’s employment................................................................................................................ 33 3. Plaintiff cannot establish Capital One’s legitimate, non-discriminatory reasons were pretext for discrimination or that “but for” Plaintiff’s age, Capital One would not have denied her Team Lead training opportunities or terminated her employment. .................................................................................... 37 D. As a matter of law, Plaintiff cannot establish a claim for retaliation. ........................ 42 1. Plaintiff cannot establish a prima facie case of retaliation because she has no evidence she either engaged in a protected activity, suffered an actionable adverse employment action, or that the alleged adverse employment action was a “but for” result of her engaging in a protected activity. ............................. 42 2. Capital One has articulated legitimate, non-retaliatory reasons for any alleged retaliatory action. ......................................................................................... 48 3. Plaintiff cannot defeat Capital One’s legitimate, non-retaliatory reasons for any alleged retaliatory action because she has no evidence sufficient to create a genuine issue of material fact that “but for” her complaints, she would not have been denied Team Lead training, responded to harshly by Cornejo, issued an inconsistent performance review rating for 2012, or terminated. ................................................................................................................. 48 V. CONCLUSION AND REQUESTED RELIEF.................................................................... 49 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 3 of 58 PageID 592 iii TABLE OF AUTHORITIES Page(s) Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .....................................................................................................................20 Arguell-Gilliand v. Brinker Int’l, Inc., No. 05-02-01402-CV, 2003 WL 21185484 (Tex. App.—Dallas May 21, 2003, no pet.)...............................................................................................................................................41 Aurora v. Starwood Hotels & Resorts Worldwide, Inc., 294 F. App’x 159 (5th Cir. 2008).................................................................................................26 Bailey v. Dolgencorp, L.L.C., 445 F. App’x 730 (5th Cir. 2011).................................................................................................46 Baker v. Holder, No. CIV.A. H-11-00917, 2013 WL 1194756 (S.D. Tex. Mar. 22, 2013)....................................45 Beltran v. Univ. of Texas Health Sci. Ctr. at Houston, 837 F. Supp. 2d 635 (S.D. Tex. 2011) .........................................................................................31 Brooks v. Firestone Polymers, L.L.C., 640 F. App’x 393 (5th Cir. 2016).....................................................................................27, 28, 29 Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996)..........................................................................................................39 Cardenas-Garcia v. Texas Tech Univ., 118 F. App’x 793 (5th Cir. 2004).................................................................................................46 Cavazos v. Springer, No. B-06-058, 2008 WL 2967066 (S.D. Tex. Aug. 1, 2008).......................................................44 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) .....................................................................................................................47 Davis v. Dallas Area Rapid Transit, 383 F.3d 309 (5th Cir. 2004)........................................................................................................21 Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995)..........................................................................................................28 Earle v. Aramark Corp., 247 F. App’x 519 (5th Cir. 2007).................................................................................................37 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 4 of 58 PageID 593 iv EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438 (5th Cir. 1995)............................................................................................21, 24, 25 Ellini v. Ameriprise Fin., Inc., 881 F. Supp. 2d 813 (S.D. Tex. 2012) .........................................................................................32 Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986)......................................................................................................20 Foster v. Solvay Pharms. Inc., No. 05-20210, 2005 WL 3505052 (5th Cir. Dec. 23, 2005) ........................................................47 Foster v. Tex. Health Sys., No. 3:00-CV-1217-L, 2002 WL 1461737 (N.D. Tex. June 20, 2002).........................................29 Gordon v. Dave & Buster's, Inc., No. SA-04-CV-0507-RF, 2006 WL 3063151 (W.D. Tex. Oct. 24, 2006)...................................42 Granderson v. JP Morgan Chase & Co., No. 3:13-CV-0536-B, 2015 WL 746643 (N.D. Tex. Feb. 23, 2015).....................................23, 41 Grimes v. Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d 137 (5th Cir. 1996)........................................................................................................20 Grise v. Betz Labs., Inc., No. 3:96-CV-2353-R, 1997 WL 667936 (N.D. Tex. Oct. 21, 1997) ...........................................36 Harvey v. Chevron U.S.A., Inc., 961 F. Supp. 1017 (S.D. Tex. 1997) ......................................................................................25, 38 Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) ........................................................................................................20 Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir. 1996)........................................................................................................42 Horak v. Glazer’s Wholesale Drug Co., Inc., No. 3:05-CV-901-K, *4 (N.D. Tex. July 19, 2006), aff’d No. 06-10854, 2007 WL 713154 (5th Cir. Mar. 6, 2007) ....................................................................................................32 Jackson v. Honeywell Intern., Inc., 601 F. App’x 280 (5th Cir. 2015).................................................................................................20 Johnson v. Parkwood Behavioral Health Sys., 551 F. App’x 753 (5th Cir. 2014).................................................................................................37 Lattimore v. Wild Flavors, Inc., No. 2009–023, 2012 WL 208078 (E.D. Ky. Jan. 23, 2012).........................................................41 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 5 of 58 PageID 594 v Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309 (5th Cir. 1999) (per curiam) .............................................................................26, 38 Lee v. Kan. City S. Ry. Co., 574 F.3d 253 (5th Cir. 2009)........................................................................................................30 Lopez v. Kempthorne, 684 F. Supp. 2d 827 (S.D. Tex. 2010) .........................................................................................27 Maestas v. Apple, Inc., 546 F. App’x. 422 (5th Cir. 2013)................................................................................................27 Manning v. Chevron Chem. Co., LLC, 332 F.3d 874 (5th 2003) ...............................................................................................................46 Martin v. Kroger Co., 65 F. Supp. 2d 516 (S.D. Tex. 1999), aff’d, 224 F.3d 765 (5th Cir. 2000)............................23, 49 Mato v. Baldauf, 267 F.3d 444 (5th Cir. 2001)........................................................................................................47 Matthews v. City of Houston Fire Dept., 609 F. Supp. 2d 631 (S.D. Tex. 2009) .........................................................................................31 Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995)........................................................................................................41 McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007)........................................................................................................27 McDowell v. Home Depot, U.S.A., Inc., No. Civ. A. 3:02-CV-1294D, 2004 WL 594101 (N.D. Tex. March 9, 2004)..............................37 Medina v. Ramsey Steel Co., Inc., 238 F.3d 674 (5th Cir. 2001)........................................................................................................21 Mire v. Tex. Plumbing Supply Co., Inc., 286 F. App’x 138 (5th Cir. 2008).................................................................................................49 Mitchell v. Snow, 326 F. App’x 852 (5th Cir. 2009).................................................................................................45 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) .....................................................................................................................28 Ocampo v. Lab. Corp. of Am., No. SA04CA538-FB, 2005 WL 2708790 (W.D. Tex. Sept. 6, 2005) .........................................29 Okoye v. Univ. of Tex. Houston Health Sci., 245 F.3d 507 (5th Cir. 2001)........................................................................................................30 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 6 of 58 PageID 595 vi Perez v. Tex. Dep’t of Criminal Justice, Inst’l Div., 395 F.3d 206 (5th Cir. 2004)........................................................................................................30 Price v. Fed. Exp. Corp., 283 F.3d 715 (5th Cir. 2002)........................................................................................................24 Puleo v. Texana MHMR Ctr., No. 3:13-CV-00393, 2016 WL 3792746 (S.D. Tex. May 9, 2016) .............................................44 Raggs v. Miss. Power and Light Co., 278 F.3d 463 (5th Cir. 2002)........................................................................................................47 Ray v. Tandem Computers, Inc., 63 F.3d 429 (5th Cir. 1995)....................................................................................................26, 38 Richardson v. Prairie Opportunity, Inc., 470 F. App’x 282 (5th Cir. 2012).................................................................................................26 Roberson v. Game Stop/Babbage's, 152 F. App’x 356 (5th Cir. 2005).................................................................................................27 S.W. Bell Tel., L.P. v. Edwards, No. 05-09-00606-CV, 2011 WL 3672288 (Tex. App.—Dallas Aug 23, 2011, no pet.)...............................................................................................................................................25 Sanstad v. CB Richard Ellis, Inc., No. 399CV2352-P, 2001 WL 611174 (N.D. Tex. June 4, 2001), aff’d, 309 F.3d 898 (5th Cir. 2002) .......................................................................................................................41 Scott v. Univ. of Miss., 148 F.3d 493 (5th Cir. 1998)..................................................................................................20, 41 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398 (5th Cir. 1999)........................................................................................................28 Stingley v. Den-Mar, Inc., No. 4:08-CV-683-A, 2008 WL 4185828 (N.D. Tex. Sept. 10, 2008) .........................................47 Sweet v. Dallas Indep. Sch. Dist., No. 3:02-CV-0406-P, 2004 WL 86308 (N.D. Tex., Jan. 15, 2004).............................................47 Thibodeaux-Woody v. Houston Cmty. Coll., 593 F. App’x 280 (5th Cir. 2014).................................................................................................45 Thompson v. City of Waco, Tex., 764 F.3d 500 (5th Cir. 2014)........................................................................................................27 Thompson v. Somerville County, Tex., No. 11-50016, 2011 WL 2623571 (5th Cir. July 1, 2011)...........................................................44 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 7 of 58 PageID 596 vii Tratree v. BP North American Pipelines, Inc., 277 F. App’x 390 (5th Cir. 2008)...........................................................................................44, 47 Wal-Mart Stores, Inc. v. Guzman, No. 13-97-260-CV, 1999 WL 34973310 (Tex. App.—Corpus Christi Apr. 8, 1999, no pet.)..........................................................................................................................25, 38 Wesley v. Scobee Foods, Inc., No. 12-1836, 2013 WL 3324092 (N.D. Tex. June 28, 2013) ......................................................44 White v. Burke Ctr., 516 F. App’x 392 (5th Cir. 2013).................................................................................................35 Statutes ADEA.............................................................................................1, 20, 26, 27, 33, 42, 44, 45, 47, 49 FED. R. CIV. P. 56 ...............................................................................................................................20 FED. R. CIV. P. 56(a)...........................................................................................................................20 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 8 of 58 PageID 597 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CAROLYN A. MOORE, Plaintiff, v. CAPITAL ONE, N.A., Defendant. § § § § § § § § § § CIVIL ACTION NO. 3:14-cv-03282-D DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT THEREOF Defendant Capital One, N.A. (“Capital One”) files this Brief in Support of Defendant’s Motion for Summary Judgment, asking the Court to dismiss Plaintiff’s lawsuit in its entirety because the undisputed evidentiary record establishes there is no genuine issue as to any material fact and that all of Plaintiff’s claims fail as a matter of law. Accordingly, Capital One respectfully shows the Court the following: I. SUMMARY This is an employment discrimination and retaliation case brought by a former employee, Carolyn Moore (“Plaintiff”), in which she finds herself in the familiar position of asserting discrimination claims against a former employer for allegedly failing to promote her to a Team Lead position and failing to provide her with training to become a Team Lead. Plaintiff specifically contends Capital One discriminated against her based on her race and age in violation of Title VII, the ADEA, and the Texas Labor Code by: (1) failing to promote her to a Team Lead position in 2012; (2) failing to provide her with Team Lead training; and (3) terminating her employment. Plaintiff also contends Capital One retaliated against her for complaining about failing to train her and promote her to Team Lead. However, as the undisputed evidence clearly demonstrates, Plaintiff was repeatedly counseled for years about her poor communication and influence skills, and inconsistent and unacceptable Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 9 of 58 PageID 598 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 2 performance, and thus, was not qualified for a Team Lead position. Instead, Plaintiff’s performance continued to decline, including multiple quality assurance errors that made Capital One susceptible to liability. Plaintiff’s refusal to correct her substandard performance by complying with her managers’ directives and suggestions to improve her performance, coupled with Plaintiff’s defensive and combative attitude and unacceptable quality assurance errors, led to Plaintiff’s employment being terminated for legitimate, non-discriminatory/non-retaliatory reasons. Capital One is entitled to summary judgment on all of Plaintiff’s claims, as a matter of law, because Plaintiff has no evidence to establish even a bare-bones case for discrimination or retaliation for the following reasons:  Plaintiff cannot establish a prima facie case for race or age discrimination based on the failure to promote her to a Team Lead position in 2012 because she has no evidence she applied for the position or was qualified for the position. As demonstrated by Plaintiff’s 2012 performance review, her performance was inconsistent and unsatisfactory. In contrast, the employee Capital One placed in the position received a very strong performance review rating for 2012 and exhibited the leadership skills required by the position.  Plaintiff cannot establish a prima facie case for race or age discrimination based on Capital One allegedly denying her training opportunities to become a Team Lead because the Fifth Circuit has repeatedly held that the denial of training does not constitute an actionable adverse employment action and Plaintiff has no evidence of disparate treatment.  Plaintiff’s race and age discrimination claims based on her termination are barred by her failure to exhaust administrative remedies. Even if they are not barred, Plaintiff still cannot establish a prima facie case of discrimination because she has no evidence of disparate treatment or that Capital One replaced her position after her termination.  Plaintiff cannot establish a prima facie case for retaliation because none of the actions alleged by her, other than her termination, constitute an adverse employment action and she cannot establish the necessary causal link between her termination and any protected activity due to her ongoing performance issues. Capital One is also entitled to summary judgment as a matter of law because it had legitimate, non-discriminatory/non-retaliatory reasons for not promoting Plaintiff to a Team Lead and for terminating Plaintiff’s employment. Capital One gave Plaintiff ample opportunities to improve her performance and attitude to an acceptable level, but Plaintiff refused to do so even after she was issued a 90-day Conduct Memo and later issued a 90-day Performance Improvement Plan. Plaintiff has not Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 10 of 58 PageID 599 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 3 shown – nor can she – that Capital One’s non-discriminatory/non-retaliatory reasons are pretextual. Therefore, the Court should dismiss her claims against Capital One in their entirety with prejudice. II. STATEMENT OF UNDISPUTED MATERIAL FACTS1 A. Plaintiff has a litigious history, including asserting the same or substantially similar discrimination claims against a former employer. Plaintiff Carolyn Moore (“Plaintiff”) (African American/Black; DOB—11/18/1959) initially denied being a party to any other lawsuits; however, when confronted with copies of previous lawsuits, she admitted to filing at least two other lawsuits—one against a former employer for race discrimination and another against the insurance company for the same employer for an alleged on-the-job injury. App. 9-11 (Ex. A, at pp. 31:5-34:18 and 38:7-41:2), 142-153 (Ex. B), and 154-166 (Ex. C). Plaintiff specifically admits to suing her former employer, Fossil, for race discrimination based on the same, or substantially similar, claims she is now asserting against Capital One in this lawsuit, including that Fossil discriminated against her based on her race by: (1) failing to provide her with the necessary training to become a Team Lead despite her repeated requests that she be provided the training; (2) failing to promote her to a Team Lead position; and (3) failing to fulfill a promise to train her to become a Team Lead. App. 9-11, 73 (Ex. A, at pp. 31:5-34:18, 38:7-39:8, 282:24-283:13, and 512:19-513:18), 142-153 (Ex. B), and 393-397 (Ex. MM). Plaintiff ultimately settled her lawsuit against Fossil for an unspecified amount of money. App. 10 (Ex. A, at pp. 35:19-37:23). B. Capital One hires Plaintiff as a Clerical Associate working in Capital One’s Vault department. On June 12, 2006, Plaintiff was hired by Capital One as a temporary associate2 working as a Clerical Associate in Capital One’s Distribution Center department, also known as the “Vault department.” App. 26 (Ex. A, at pp. 98:16-99:11) and 414-415 (Ex. QQ at ¶3). The Vault department maintains collateral files for Capital One Auto Finance and, therefore, stores secure information and 1 Capital One treats these facts as undisputed only for purposes of this Motion for Summary Judgment. 2 Capital One refers to its workers as “associates.” Temporary associates work alongside permanent associates, but are not held to the same performance, disciplinary, or recognition standards as permanent associates. App. 425-426 (Ex. RR at ¶8). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 11 of 58 PageID 600 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 4 documentation relating to car and home loans. App. 28 (Ex. A, at p. 106:3-10) and 421 (Ex. RR at ¶2). Associates in the Vault department work on various processes that involve maintaining and organizing contract files and supporting documentation. App. 28 (Ex. A, at p. 106:11-21) and 421 (Ex. RR at ¶2). Plaintiff contends there are approximately ten processes in the Vault department. App. 28 (Ex. A, at p. 106:22-24). However, Plaintiff admits to working at least ten different processes in that department during her employment with Capital One. App. 28, 31, 33-36, 39-41, 44, 81, 96-97 (Ex. A. at pp. 106:22-24, 118:2-4, 126:22-127:17, 133:3-134:2, 136:1-10, 136:15-20, 140:24-141:10, 151:12-16, 154:4-155:13, 161:5-8, 171:16-18, 313:24-314:2, and 376:14-377:1). On October 15, 2007, Plaintiff was hired by Capital One as a full-time, permanent Clerical Associate II. App. 26 (Ex. A, at pp. 99:22-100:8). Plaintiff contends that Seth Carrillo (“Carrillo”) (Hispanic; DOB—06/02/1977), Manager in Training in the Vault department, was responsible for hiring her as a permanent associate. App. 27 (Ex. A, at p. 105:18-23) and 418 (Ex. QQ at ¶10). At the time Plaintiff was hired as a permanent associate, she knew her employment with Capital One was at-will and that the terms and conditions of her employment were subject to change at any time with or without notice. App. 27 (Ex. A, at pp. 104:23-105:4). Plaintiff also knew the processes to which she was assigned to work in the Vault department could change from day to day. App. 27 (Ex. A, at p. 105:5- 10). Associates in the Vault department, including Plaintiff, were expected to maintain quality assurance (“QA”) standards by limiting the percentage of errors made while working a particular process. App. 28 (Ex. A, at p. 108:14-109:2) and 424 (Ex. RR at ¶4). QA Auditors in Capital One’s Audit department audit a sampling of processes completed by each associate on a monthly basis. App. 28-29 (Ex. A, at pp. 109:23-110:3 and 113:17-23) and 424 (Ex. RR at ¶4). Errors discovered by a QA Auditor are then categorized based on a level of risk to Capital One’s business and customers—high, medium, or low—and an associate’s monthly QA average is decreased based on the number of errors discovered by the Auditor and the type of risk alert of an error. App.30 (Ex. A, at p. 114:3-8) and 424 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 12 of 58 PageID 601 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 5 (Ex. RR at ¶4). Auditors can determine which associate made an error based on the associates’ log-in information. App. 424 (Ex. RR at ¶4). Associates are assessed on the following corrective action steps based on the number of risk alerts obtained during a rolling 90-day period: (1) one risk alert—verbal warning; (2) two risk alerts— written warning; (3) three risk alerts—conduct memo; and (4) four risk alerts—termination. App. 167- 169 (Ex. D) and 425 (Ex. RR at ¶7). At the time Plaintiff’s employment with Capital One was terminated, associates were expected to maintain a monthly QA average of at least 98%. App. 28 (Ex. A, at p. 109:7-22). An error must be discovered by the QA department in order to affect an associate’s monthly QA score. App. 124 (Ex. A, at p. 486:4-6) and 425 (Ex. RR at ¶6). C. Despite receiving repeated and consistent feedback year after year that Plaintiff needed to improve her performance in the areas of communication and influence, she fails to do so. Between 2008 and 2011, Carrillo repeatedly counseled Plaintiff in her annual performance reviews about her need to improve in the areas of influence and communication. App. 172-181 (Ex. F-I) and 415 (Ex. QQ at ¶4). Specifically, a repeated theme throughout Plaintiff’s performance reviews was that she needed to take a positive approach in communicating with her teammates and she needed to become more vocal in team meetings instead of being withdrawn and quiet. App. 33-34, 36-39 (Ex. A, at pp. 129:3-130:3, 139:14-140:8, 142:13-143:4, and 148:21-150:2), 172-181 (Ex. F-I), and 415 (Ex. QQ at ¶4). The performance reviews specifically noted that communication and influence are required skill sets of a leader. App. 172-181 (Ex. F-I) and 415 (Ex. QQ at ¶4). In Plaintiff’s 2010 performance review, Carrillo suggested Plaintiff join a Quality Circle team in order to improve in the competencies of influence and communication. App. 37 (Ex. A, at pp. 142:13- 43:4), App. 177-179 (Ex. H), and 415 (Ex. QQ at ¶4). A Quality Circle is a group of associates who work together to create solutions to an issue relating to a process, complete a tracking document known as a “PDCA Action Plan,” and then present their solution to management. App. 186-200 (Ex. L) and 426 (Ex. RR at ¶9). The primary goal of a Quality Circle is to identify a process, learn how the process works, and then develop methods to improve the process. Id. Accordingly, Quality Circles are used to Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 13 of 58 PageID 602 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 6 develop associates’ skill sets in certain areas relating to their job duties, including leadership and influence, and to help create solutions for working various processes in the Vault department. Id. Rather than join a Quality Circle, Plaintiff joined the I-Team in 2011, which was an organization that planned fun activities, rally events, and recognized associates’ birthdays. App. 38, 70, 80 (Ex. A, at pp. 147:17-23, 270:5-11, and 311:5-312:8). Even though Plaintiff allegedly believed the I-Team was a Quality Circle, she admits that the I-Team is not listed as a Quality Circle on Capital One’s PDCA Toolkit, she did not complete a PDCA Action Plan while on the I-Team, and the rally events she helped plan were wholly unrelated to any process worked in the Vault department. App. 37-39, 70, 80 (Ex. A, at pp. 143:21-144:10, 147:17-23, 150:11-151:8, 270:5-11, and 311:5-312:8). Additionally, Carrillo noted in Plaintiff’s 2011 performance review that she joined the I-Team to help plan fun events, but that he would still like her to “join a Quality Circle team” because it “would help her grow on how a process is built and show how to influence a team.” App. 38 (Ex. A, at pp. 148:21-149:18), 180-181 (Ex. I), and 415 (Ex. QQ at ¶4). Plaintiff admits she failed to join a Quality Circle even after receiving this feedback from Carrillo on her 2011 performance review and even though she had consistently received feedback on her performance reviews for four consecutive years that she needed to improve in the areas of communication and influence. App. 38-39 (Ex. A, at pp. 149:14-150:7). D. Plaintiff continues to demonstrate she is unqualified to be a Team Lead and her performance is criticized as being inconsistent, including in the areas of influence and communication, by a new manager. On April 25, 2012, Annette “Bre” Galvan (“Galvan”) (White; DOB—12/27/1976), Senior Unit Manager, sent an email to all the permanent associates in the Vault department (including Plaintiff) to “gauge interest” from them in becoming a Team Lead.3 App. 39 (Ex. A, at pp. 152:17-153:19), 201 (Ex. M), 418 (Ex. QQ at ¶10). At the time, Larisa Dzhavadova (“Dzhavadova”) (White; DOB— 3 A Team Lead creates, maintains, and facilitates new hire training for the Vault team, completes internal QA audits of associates’ work and provides documentation of the audits to management. A Team Lead must have a high level of systems knowledge and skills, such as outlook, excel, knowledge link, winocular, etc. and must have expert knowledge of the processes and systems within the Vault, as well as knowledge of the processes outside of the Vault that impact Capital One’s customers. The Team Lead also needs to have exceptional communication, influence, and teamwork skills. App.426-427 (Ex. RR at ¶10). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 14 of 58 PageID 603 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 7 03/07/1986) was the only Team Lead in the department, but Galvan and Carrillo determined that another Team Lead was necessary to keep up with the growth and demands of the department. App. 201 (Ex. M) and 418 (Ex. QQ at ¶10). In the e-mail, Galvan specifically advised associates that her and Carrillo would assess the current readiness of any interested candidates and seek feedback from peers “on who has already displayed the right characteristics of a peer coach/team lead.” App. 39 (Ex. A, at pp. 152:17-153:19) and 201 (Ex. M). Even though Carrillo had repeatedly advised Plaintiff that her influence and communication skills with her teammates was lacking and needed to improve for her to become a leader, Plaintiff makes the conclusory assertion that she was qualified for the Team Lead position. App. 172-181 (Ex. F-I) and 201 (Ex. M). Plaintiff also alleges that she responded to Galvan’s April 25, 2012 e-mail expressing interest in the position. App. 40, 82 (Ex. A, at pp. 156:4-24, 157:18-23, and 318:14-319:23) and. 201 (Ex. M). In June 2012, Carrillo moved to a position outside the Vault department. App. 417 (Ex. QQ at ¶8). As a result, Jorge Cornejo (“Cornejo”) (Hispanic; DOB—10/25/1977) replaced Carrillo on August 5, 2012 as a Manager in Training. App. 398 (Ex. NN at ¶¶1 and 3). Maegan Stanaland (“Stanaland”) (White; DOB—06/26/1977), Senior Unit Manager was Cornejo’s immediate supervisor at the time and was Galvan’s replacement. Id. On October 28, 2012, Anthony Vogel (“Vogel”) (White; DOB—01/21/1985) was promoted to Team Lead by Cornejo and Stanaland.4 App. 399 (Ex. NN at ¶5) and 417 (Ex. QQ at ¶8). Plaintiff contends Dzhavadova provided Vogel with the training to become a Team Lead and that he received the Team Lead promotion based, in part, on his alleged romantic relationship with Dzhavadova. App. 48 (Ex. A, at pp. 186:22-188:16). Of importance, Team Leads are not managerial level positions and Dzhavadova did not have the authority to hire, fire, promote, or discipline associates. App. 34 (Ex. A, at 4 Plaintiff testified that prior to Vogel being promoted to Team Lead, he was acting as an interim Team Lead. App. 47 (Ex. A, at p. 185:15-17). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 15 of 58 PageID 604 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 8 p. 132:3-13) and 426-427 (Ex. RR at ¶10). Moreover, Vogel demonstrated that he was qualified for the Team Lead position because he was well versed in various processes, well-liked amongst associates, and demonstrated the ability to adequately assist other associates with their processes by effectively influencing them and being a leader. App. 399 (Ex. NN at ¶5) and 410-411 (Ex. PP at ¶3). For example, on Vogel’s 2012 performance review, Cornejo rated Vogel “very strong” or “exceptional” on every competency, including communication and influence.5 App. 400 (Ex. NN at ¶8) and 417-418 (Ex. QQ at ¶8). In vast contrast, on Plaintiff’s 2012 performance review, Cornejo rated Plaintiff as “inconsistent” on every competency except for two. App. 49 (Ex. A, at pp. 190:3-191:7), 182-183 (Ex. J), 400-402 (Ex. NN at ¶9), and 417-418 (Ex. QQ at ¶8). Cornejo specifically noted that Plaintiff needed to develop “in the areas of communication, teamwork, and results focused” and provided the following critique of Plaintiff’s developmental opportunities: [Plaintiff] does not communicate effectively with peers and supervisors. She has been a part of a couple of situations which could have been resolved by creating two-way dialogue that could have helped both sides set proper expectations from the beginning. She avoids addressing concerns with her team lead or asking for feedback. When asked to request written feedback from her team lead she said no because she felt that she would only receive negative feedback. Her peers have expressed that she is at times non-responsive or unapproachable. In both, team meeting and events, she has shown to be disengaged by sitting away from the team instead of joining the group. When asked if [she] would be interested in volunteering to help another department, her response was that her peer should do it. She is not sought out by her team member[s] for input despite her tenure in the team. [Plaintiff] is part of the QA pulling team but has received several errors in her overall QA score during the year. Often, she has also been found to fill out trackers improperly and move files . . . [to] the wrong location. Her production has also shown to be inconsistent and often does not meet her daily goal which in the past contributed to a backing of files that needed to be reviewed. App. 182-183 (Ex. J), 400-402 (Ex. NN at ¶9), and 415 (Ex. QQ at ¶4). Accordingly, Plaintiff’s 2012 performance review was the fifth performance review she received during her employment with Capital One advising her that she needed to improve her communication and influence skills. App. 170-183 (Ex. E-J) and 415 (Ex. QQ at ¶4). In addition, Plaintiff admits that her monthly QA scores in 2012 were 5 In 2012 and 2013, Capital One’s performance review rating scale was based on the following: exceptional (highest rating), very strong (next to highest rating), strong (middle rating), inconsistent (next to lowest rating), and action required (lowest rating). App. 417-418 (Ex. QQ at ¶8). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 16 of 58 PageID 605 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 9 unacceptable at various times. App. 49 (Ex. A, at p. 193:16-22). Plaintiff’s 2012 performance review was filled out and completed by Cornejo before December 20, 2012, which was the deadline for Cornejo to submit his performance reviews for associates so that Capital One could process merit increases for eligible associates for the 2013 year. App. 400 (Ex. NN at ¶7) and 418 (Ex. QQ at ¶9). E. Capital One conducts a thorough investigation into Plaintiff’s race and age discrimination, harassment, and retaliation claims, including interviewing several witnesses but was unable to substantiate Plaintiff’s claims. On or about January 28, 2013, Plaintiff told Stanaland that she believed she was passed over for the Team Lead position given to Vogel because she was black and older. She also said that she felt Cornejo harassed her recently in a meeting by responding to her in a harsh manner. App. 52 (Ex. A, at p. 203:4-18), 202-218 (Ex. N), 415-416 (Ex. QQ at ¶5), and 412 (Ex. PP at ¶7). During this discussion, Stanaland reminded Plaintiff that Stanaland and Cornejo had repeatedly coached her about her need to improve her skill set in order to become a Team Lead. App. 202-218 (Ex. N), 412 (Ex. PP at ¶7), and 415-416 (Ex. QQ at ¶5). On January 31, 2013, at approximately 3:13 p.m., Plaintiff called the Associate Relations hotline and spoke to an intake representative (Jarnice Walker) and complained that she had been passed over for promotions because of her race and age. App. 202-218 (Ex. N) and 415-416 (Ex. QQ at ¶5). Around the same time, at approximately 4:30 p.m., Stanaland, on her own accord, contacted Debbie Sterling (“Sterling”) (White; DOB—10/01/1976), HR Specialist at the time, directly to report the discrimination claims Plaintiff made to Stanaland a few days earlier. App. 202-218 (Ex. N), 412-413 (Ex. PP at ¶8), and 414-416 (Ex. QQ at ¶¶ 1, 4, and 6). At approximately 5:06 p.m., Sterling sent Plaintiff an e-mail inquiring about her availability to schedule a conference call to discuss Plaintiff’s concerns. App. 202- 218 (Ex. N) and 416 (Ex. QQ at ¶6). When Plaintiff was able to speak to Sterling on February 4, 2013, Plaintiff alleged the following: (1) she was discriminated against by not being promoted to Team Lead; (2) she was harassed by Dzhavadova because Dzhavadova refused to train her to become a Team Lead, but trained White employees, including most recently Wyatt Wolfe (“Wolfe”) (White; DOB— Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 17 of 58 PageID 606 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 10 04/21/1973); and (3) Cornejo retaliated against her by responding harshly to her during a meeting. App. 202-218 (Ex. N), 219-221 (Exs. O-P), and 414, 416 (Ex. QQ at ¶¶1 and 6). Sterling conducted a thorough investigation into Plaintiff’s complaints, including reviewing Plaintiff’s annual performance reviews and interviewing five witnesses—three of whom were Black. App. 67-68 (Ex. A, at pp. 256:17-257:10, 261:2-9, 262:17-263:1, 263:7-20), 202-218 (Ex. N), and 416- 418 (Ex. QQ at ¶¶6-8). One witness, Chuck Mays (“Mays”) (White; 01/22/1967), reported that Plaintiff was the only unhappy associate in the department and that she did not speak to other associates in the department. App. 202-218 (Ex. N) and 416-417 (Ex. QQ at ¶7). After conducting a thorough investigation, Sterling was unable to substantiate any of Plaintiff’s claims for race and age discrimination, harassment, and retaliation claims, and advised Plaintiff of the results of her investigation on February 15, 2013. App. 69 (Ex. A, at pp. 267:9-268:7), 202-218 (Ex. N), and 416-418 (Ex. QQ at ¶¶6-8). F. Plaintiff files a Charge of Discrimination alleging race and age discrimination and retaliation. On February 22, 2013, Plaintiff filed a Charge of Discrimination (“Charge”) with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging race and age discrimination and retaliation beginning on May 1, 2012. App. 222 (Ex. Q). Plaintiff specifically claimed she was (1) denied training opportunities that her younger, White counterparts were given to become Team Leads, (2) passed over for a promotion to a Team Lead that was given to a younger, White counterpart, and (3) retaliated against after she reported the discrimination by being given a poor performance review a week later despite having no previous performance issues and receiving good performance reviews in the past.6 App. 88-91 (Ex. A, at pp. 343:14-344:12, 346:17-347:17, 348:8-349:19, 351:2-11, and 353:16-354:10) and 222 (Ex. Q). 6 The EEOC subsequently issued Plaintiff a Right-to-Sue letter on April 15, 2014, dismissing Plaintiff’s Charge on the grounds that it was “unable to conclude that the information obtained [during its investigation] established[d] violations of the statutes” on which Plaintiff based her claims. App. 93 (Ex. A, at pp. 362:17-363:3) and 223 (Ex. R). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 18 of 58 PageID 607 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 11 G. Plaintiff receives another overall inconsistent rating on her 2013 performance review and continues to be unresponsive to management’s constructive feedback. In or around November 2013, Melissa Gandara Whitley (“Gandara”) (White; DOB— 10/16/1982), Manager in Training-Records Management, became Plaintiff’s immediate supervisor. App. 421, 427 (Ex. RR at ¶¶1 and 11). Upon becoming Plaintiff’s manager, Gandara kept detailed notes regarding her communications with Plaintiff, including the numerous attempts she made to create a two- way dialogue with Plaintiff and provide Plaintiff with constructive feedback to improve Plaintiff’s performance. App. 224-238 (Ex. S) and 427 (Ex. RR at ¶11). After Plaintiff received the lowest QA score (98.33%) of all associates in the Vault department for November 2013, Gandara and Cornejo discussed Plaintiff’s risk alert/error in a 10/10 meeting7 with Plaintiff, but Plaintiff refused to take ownership of the error and appeared to be frustrated and withdrawn. App. 224-238 (Ex. S), 239-256 (Ex. T), and 427-428 (Ex. RR at ¶¶11-12). On or about January 7, 2014, Plaintiff was advised that she would start working the Vault E- mail Box process (also known as “Detail Report/Email Box”) in addition to the PF Checks and Release process she was already working at the time.8 App. 96-97 (Ex. A, at pp. 376:9-377:23), 224-238 (Ex. S), and 428 (Ex. RR at ¶13). Plaintiff viewed this process as a “step backward” because she previously worked the process in 2012. As a result, she condescendingly and insubordinately questioned whether Dzhavadova9 made the decision to assign her to the Vault E-mail Box. App. 97-98 (Ex. A, at pp. 7 10/10 meetings are regular meetings where associates individually meet with their supervisor to discuss their performance. App. 30-31 (Ex. A, at pp. 117:16-118:1). During the 10/10 meeting, an associate has 10 minutes to talk about his/her employment with the manager and afterward the manager has 10 minutes to discuss the associate’s performance. App. 30-31 (Ex. A, at pp. 117:16-118:1). The purpose of 10/10 meetings is to provide routine, constructive feedback to associates about their performance on a regular basis. App. 30-31 (Ex. A, at pp. 117:16-118:1). 8 The Detail Report/Email Box is a process where associates manage a mailbox wherein other departments within Auto Finance request images of documents sent to customers via the third-party vendor or Capital One’s internal correspondence team. Associates from other departments can also request that images be placed into accounts by providing the document via PDF attachment. The requests are completed and responded to within 24 hours. The PF Checks and Release is a process where associates match the correct contract to the corresponding paid in full letter and send it to the customer if the customer’s state requires the original auto loan be sent back to the customer after the loan is paid off. 9 Plaintiff contends Dzhavadova disliked her, but that she was unsure of the reason. App. 75 (Ex. A, at p. 292:2- 8). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 19 of 58 PageID 608 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 12 377:24-378:6 and 381:3-6), 224-238 (Ex. S), and 428 (Ex. RR at ¶13). Gandara advised Plaintiff that it was Gandara and Cornejo’s decision to assign her to the process. Gandara further explained that working the Vault E-mail Box would be a good developmental opportunity and refresher for Plaintiff because Plaintiff needed to know every process in order to be a department leader and subject matter expert (“SME”). App. 224-238 (Ex. S) and 428 (Ex. RR at ¶13). Further, as Plaintiff acknowledged, Capital One had made changes to the Vault E-mail Box process since Plaintiff previously worked the process in 2012. App. 97 (Ex. A, at pp. 377:24-380:20), App. 224-238 (Ex. S), and 428 (Ex. RR at ¶13). On January 30, 2014, Gandara sent an e-mail to Plaintiff providing three Capital One University10 courses Gandara wanted Plaintiff to complete to assist with Plaintiff’s written communication skills. Gandara specifically advised Plaintiff that “[i]t is very important that the emails [Plaintiff] send[s] out to [Capital One’s] internal customers are clear, concise, and grammatically correct.” App. 224-238 (Ex. S) and 428-429 (Ex. RR at ¶14). Gandara’s goal in requiring Plaintiff to complete the COU courses was to provide Plaintiff with the “tools and resources [she] need[ed] to be successful.” Id. The three courses Gandara requested Plaintiff complete were: (1) Avoiding Grammatical Errors in Business Writing; (2) Business Writing: How to Write Clearly and Concisely; and (3) Business Writing: Know Your Readers and Your Purpose. App. 224-238 (Ex. S) and 428-429 (Ex. RR at ¶14). Plaintiff admits she failed to complete all three courses despite Gandara’s requests that she do so. App. 98 (Ex. A, at pp. 383:5-384:9), App. 224-238 (Ex. S), and 428-429 (Ex. RR at ¶2). Gandara, in consultation with Cornejo, evaluated Plaintiff on her 2013 performance review, and rated her performance overall as “inconsistent.” App. 98-99 (Ex. A, at pp. 384:11-385:15), 184-185 (Ex. K), 429 (Ex. RR at ¶15), and 403 (Ex. NN at ¶11). The performance review, once again, specifically stated that communication was a major area of needed improvement for Plaintiff because “[c]ommunication is very important in any role and should be a main focus for [Plaintiff] since she 10 As evidenced by the acknowledgement Plaintiff signed upon beginning her employment with Capital One, Capital One provides associates with a website portal known as Capital One University (“COU”) that contains interactive learning courses on Capital One’s business, products, values, and how to succeed within the company. App. 27, 98 (Ex. A, at pp. 102:22-103:12 and 382:3-24) and 257 (Ex. U). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 20 of 58 PageID 609 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 13 would like to be seen as a leader in the Vault.” App. 99 (Ex. A, at pp. 387:1-388:5), 184-185 (Ex. K) and 429 (Ex. RR at ¶15). The performance review also noted that Plaintiff had grammar, punctuation, and spelling errors in her writing and that her behavior was often times inappropriate. App. 99 (Ex. A, at pp. 387:1-388:5), App. 184-185 (Ex. K), and 429 (Ex. RR at ¶15). Gandara specifically provided the following examples of Plaintiff’s inappropriate conduct: (1) rolling her eyes when she disagreed with an idea; (2) being difficult in creating two-way dialogue; (3) failing to take direction from her Team Lead; (4) failing to seek feedback about her performance and being reluctant to admit mistakes; and (5) failing to make an effort to investigate or provide a reasonable solution to a problem and saying “I don’t know” in response to questions. App. 99 (Ex. A, at pp. 387:1-388:5), 184-185 (Ex. K), 429 (Ex. RR at ¶15, and 415 (Ex. QQ at ¶4). Lastly, Gandara noted that Plaintiff’s job specific skills and knowledge of Microsoft Word and Excel were lacking because she required a lot of guidance in executing her job duties and made several recent errors in working her process. Id. Despite these issues, Gandara stated that Plaintiff could progress towards her ultimate goal of becoming a formal leader in the department if she would be more receptive to feedback and would leverage Capital One’s educational resources (including webinars located on Capital One University (“COU”)) to obtain further guidance in the areas of communication with her supervisors and peers, as well as her written communication and computer skills. Id. Plaintiff made two errors working the Vault E-mail Box in January 2014. However, Capital One did not allow the errors to affect Plaintiff’s QA score because she had just recently been placed back in the process. App. 258-274 (Ex. V), 429-430 (Ex. RR at ¶16). On February 6, 2014, Plaintiff met with Gandara, Cornejo, and Kelly Russell (“Russell”) (White; DOB—08/30/1979), Department Operations Managers, to go over her 2013 performance review. App. 100 (Ex. A, at pp. 392:20-24), 418 (Ex. QQ at ¶10), and 430 (Ex. RR at ¶17). During the meeting Plaintiff exhibited unprofessional and combative behavior. For example, in response to Gandara’s feedback that Plaintiff needed to improve her written communication skills in the areas of Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 21 of 58 PageID 610 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 14 grammar, punctuation, and spelling, Plaintiff abrasively and insubordinately told Gandara that Gandara should fix the grammatical errors contained in her performance review before Gandara attempted to criticize her about grammatical mistakes. App. 100-101 (Ex. A, at pp. 392:25-393:11) and 430 (Ex. RR at ¶17). In response, Russell told Plaintiff that her behavior was inappropriate and needed to stop. App. 101-103 (Ex. A, at pp. 396:22-397:12 and 400:19-401:2). Plaintiff admits that Gandara, Cornejo, and Russell all expressed to her during the meeting that her behavior was defensive, unacceptable, and not in line with Capital One’s values and competencies. App. 101 (Ex. A, at p. 396:15-21). H. Capital One places Plaintiff on a 90-day Conduct Memo for inappropriate behavior and then on a 90-day Performance Improvement Plan for poor performance. On February 27, 2014, Plaintiff was issued a Conduct Memo for inappropriate behavior. App. 109 (Ex. A, at pp. 426:18-428:13), 275-276 (Ex. W), 431 (Ex. RR at ¶18), and 415 (Ex. QQ at ¶4). Specifically, the Conduct Memo provided specific examples from January and February 2014, where Plaintiff “demonstrated concerning behavior by becoming argumentative, disruptive, and unprofessional when communicating with her co-workers and managers.” Id. The Conduct Memo also provided Plaintiff with notice that it was a final warning and Plaintiff’s employment could be terminated if she committed any additional violation of Capital One’s policies or procedures or failed to meet Capital One’s expectations within the next 90 days. App. 109 (Ex. A, at p. 426:18-25), 275-276 (Ex. W), 431 (Ex. RR at ¶18), and 415 (Ex. QQ at ¶4). Plaintiff’s overall QA score for February 2014 was 93.33%, the second lowest score in the department.11 App. 111-112 (Ex. A, at pp. 433:14-435:9 and 436:10-437:22), 277-294 (Ex. X), and 431 (Ex. RR at ¶19). Specifically, Plaintiff committed a high risk alert/error by failing to timely scan images to the corresponding application and account when she received them on February 20, 2014. App. 277- 294 (Ex. X), and 431 (Ex. RR at ¶19). 11 The only individual with a score lower than Plaintiff’s score was a temporary associate. App. 277-294 (Ex. X) and 431 (Ex. RR at ¶19). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 22 of 58 PageID 611 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 15 Plaintiff’s overall QA score for March 2014 was 100%, indicating that no errors were discovered by the auditor for the month. App. 112 (Ex. A, at pp. 438:10-439:6), 295-312 (Ex. Y), and 431-432 (Ex. RR at ¶20). On April 1, 2014, Plaintiff and Gandara met for a 10/10 and Gandara congratulated Plaintiff on her 100% QA score for March. Gandara also stated that, because Plaintiff had shown improvement in working the Vault E-mail Box, she could start working on the Vault, Notary, and Hardship queues (also known as the “Winocular Queue”). App. 112-113 (Ex. A, at pp. 439:10-441:11), 224-238 (Ex. S), and 427, 432 (Ex. RR at ¶¶11 and 21). In April 2014, Plaintiff was counseled by Gandara regarding two high risk alerts/errors she made while working the Vault E-mail Box. App. 114-117 (Ex. A, at pp. 445:3-446:17, 452:11-453:25, and 458:17-460:17), 224-238 (Ex. S), 330-343 (Ex. AA-DD), and 427, 432 (Ex. RR at ¶¶11, 22-23). Gandara explained the errors to Plaintiff in a 10/10 meeting and even instructed Dzhavadova to create a work around in the process in an attempt to further help Plaintiff. App. 114-117 (Ex. A, at pp. 445:3- 446:17, 452:11-453:25, and 458:17-460:17), 330-343 (Ex. AA-DD), 224-238 (Ex. S), and 427, 432 (Ex. RR at ¶¶11 and 23). Furthermore, Gandara requested detailed descriptions of the errors from the QA Auditor, Whitney Tingdale (“Tingdale”), to provide Plaintiff as a teaching tool. App. 224-238 (Ex. S), 342-343 (Ex. DD), and 427, 432 (Ex. RR at ¶¶11 and 23).12 Plaintiff’s total QA score for April 2014 was 86.67%, which was by far the lowest QA score of any associate in the department. App. 118-119 (Ex. A, at pp. 464:19-467:8), 313-329 (Ex. Z), and 427, 432 (Ex. RR at ¶¶11 and 23). As of April 30 2014, Plaintiff’s year-to-date QA average was 95% and her twelve month QA average was 97.5%, which was below Capital One’s 98% quality standard expectation. App. 119-120 (Ex. A, at pp. 468:25-469:9), 344-345 (Ex. EE), 432-433 (Ex. RR at ¶24), and 415 (Ex. QQ at ¶4). Accordingly, on May 12, 2014, Gandara and Charles Christopher “Chris” Craig (“Craig”) (White; DOB—04/10/1981), Unit Manager, issued Plaintiff a performance improvement plan (“PIP”) requiring 12 Additionally, Plaintiff also made three errors while working the Winocular Queue during the month of April 2014, but the errors did not affect her overall QA score because she was in coaching status at the time. App.2247-238 (Ex. S) and 432 (Ex. RR at ¶22). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 23 of 58 PageID 612 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 16 Plaintiff to maintain a monthly 98% QA average for the next 90 days (May, June, and July). App. 120 (Ex. A, at pp. 469:13-19), 224-238 (Ex. S), 344-345 (Ex. EE), 346-353 (Ex. FF), 427, 432-433 (Ex. RR at ¶¶11 and 24), 415 (Ex. QQ at ¶4), and 406 (Ex. OO at ¶¶1 and 4). As part of the PIP, Plaintiff was required to submit “an action plan within five days that demonstrated the actions she would take to maintain immediate and sustained improvement.” App.120 (Ex. A, at p. 471:4-7), 344-345 (Ex. EE), 432-433 (Ex. RR at ¶24), and 415 (Ex. QQ at ¶4). Plaintiff admits she understood that her employment with Capital One would be terminated if she failed to maintain a 98% QA average for May, June, or July. App. 121 (Ex. A, at p. 473:6-18). During the meeting, Plaintiff claimed she was being “harassed” and accused her managers of trying to push her out of the company. App. 346-353 (Ex. FF), 432-433 (Ex. RR at ¶24), and 415-416 (Ex. QQ at ¶5). In response, Gandara explained to Plaintiff that other associates were able to meet the 98% QA standard while also satisfactorily performing their other daily tasks and that nothing was required of Plaintiff that was not required of other associates.13 Id. Following the meeting, Gandara e-mailed Sharon Wood (“Wood”) (White; DOB—12/29/1960), copying Craig, to provide a recap of the meeting, including Plaintiff’s claim that she was being “harassed.” App. 346-353 (Ex. FF), 433-434 (Ex. RR at ¶25), and 415-416, 418-419 (Ex. QQ at ¶¶5 and 10). Wood directed Craig to follow-up with Plaintiff to find out the reasons Plaintiff felt harassed. App. 346-353 (Ex. FF), 433-434 (Ex. RR at ¶25), and 415-416 (Ex. QQ at ¶5). Accordingly, Craig met with Plaintiff on May 13, 2014. App. 344-345 (Ex. EE), 406-407 (Ex. OO at ¶5), and 415-416 (Ex. QQ at ¶5). During the meeting, Craig discussed the 98% QA expectations for Plaintiff’s position, but Plaintiff claimed the standard was unrealistic. App. 346-353 (Ex. FF), 406-407 (Ex. OO at ¶5), and 415-416 (Ex. QQ at ¶5). Plaintiff contends she advised Craig that she felt harassed because her work was allegedly being “tampered” with by unknown individuals. App. 122 (Ex. A, at pp. 479:21-480:12). Nonetheless, 13 Moreover, as reflected in Plaintiff’s performances reviews from 2009-2011, she was able to maintain an average QA score of 98% or greater every year. App.174-181 (Ex. G-I) and 415 (Ex. QQ at ¶4). Plaintiff’s 2009 performance review even notes under the results category of maintaining a QA of 98% or better that Plaintiff was able to maintain a 98.94% annual average, and thus, had “done a great job with reaching her goal for the year.” App. 35 (Ex. A, at pp. 136:21-137:11), 174-176 (Ex. G), and 415 (Ex. QQ at ¶4). Plaintiff was, therefore, able to maintain a 98% or greater QA score in the past. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 24 of 58 PageID 613 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 17 she does not claim to know who purportedly tampered with her work or their alleged motivations in doing so. App.93, 115 (Ex. A, at pp. 362:8-16 and 452:5-9). Craig encouraged Plaintiff to come talk to him or to contact Associate Relations if she felt like anything impeded her progress. App. 346-353 (Ex. FF), 406-407 (Ex. OO at ¶5), and 415-416 (Ex. QQ at ¶5). On May 14, 2014, the next day, Gandara met with Plaintiff and provided her with a copy of Capital One’s Vault Performance Expectations. App. 224-238 (Ex. S), 346-353 (Ex. FF), 434 (Ex. RR at ¶26), and 415-416 (Ex. QQ at ¶5). Gandara also made several suggestions to Plaintiff to improve her performance, such as using techniques to block out her day to make the queue manageable and using tick marks, excel, and a manual click to track production. Id. Plaintiff appeared to be unresponsive to Gandara’s suggestions and refused to take ownership of her performance by, again, claiming Capital One’s 98% QA expectation was too high. Id. In an “effort to ensure [Plaintiff] was successful in her process,” Gandara made the decision to remove Plaintiff from working the Vault E-mail Box.14 Id. The action plan Plaintiff submitted in response to her PIP was very broad and failed to identify any specific actionable items she planned on taking to improve her performance. App.344-345 (Ex. EE), 346-353 (Ex. FF), 434-435 (Ex. RR at ¶27), and 415-416 (Ex. QQ at ¶5). Specifically, Plaintiff merely recited a broad overview of her job duties by simply claiming she would “use the tools that are given to her such as Titan CLO, and Winocular in order to exhaust the efforts to find the information needed [and] after exhausting every effort [if she is] unable to find the information necessary to push the documents through, the next step w[ould] be to place the document in the UnID Q.” App. 344-345 (Ex. EE), and 434-435 (Ex. RR at ¶27). Gandara, at the suggestion of Wood, asked Plaintiff to expand her action plan to include specific steps she intended on taking to improve her performance. App. 346-353 (Ex. FF), 375 (Ex. II), 434-435 (Ex. RR at ¶27), and 415-416 (Ex. QQ at ¶5). However, Plaintiff insubordinately refused to expand her action plan and instead wrote under the “Associate Comments” 14 In fact, the QA report for May 2014 shows Plaintiff only worked the Vault E-mail Box for the first three rounds of the month and did not work it during the last three rounds of the month, indicating that she was removed from the Vault E-mail Box in mid-May 2014. App. 390-408 (Ex. HH) and 436 (Ex. RR at ¶30). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 25 of 58 PageID 614 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 18 section of the PIP that “because of factors surrounding my Qa [sic], production and other factors, I don’t agree with having to take the measure of writing a PIP. I feel this is an attack against me. My job has been threaten [sic] because of it.” App. 344-345 (Ex. EE), 375 (Ex. II), 346-353 (Ex. FF), and 434-435 (Ex. RR at ¶27). I. Despite being given ample opportunity to self-correct her unacceptable performance and attitude, Plaintiff fails to do so, resulting in the termination of her employment. On May 21, 2014, Gandara e-mailed Plaintiff asking her to review the unidentified queue because Dzhavadova found several errors in Plaintiff’s work where she placed images in the unidentified queue even though the images could be matched to accounts. App. 123-124 (Ex. A, at pp. 484:21-485:17), 224-238 (Ex. S), 376-379 (Ex. JJ) and 435 (Ex. RR at ¶28). Gandara encouraged Plaintiff to correct the errors before the QA Auditor (Tingdale) completed her audit review because Gandara “d[id]n’t want [Plaintiff] to have any errors.” App. 124 (Ex. A, at pp. 485:3-17), 376-379 (Ex. JJ) and 435 (Ex. RR at ¶28). Instead of immediately seizing the opportunity to correct the errors, Plaintiff questioned whether her daily production would be affected by her taking time to identify and correct the errors. App. 410-413 (Ex. JJ) and 435 (Ex. RR at ¶28). Gandara then discussed the issue with Plaintiff in person, but Plaintiff became very combative, including raising her voice at Gandara and accusing Gandara of “harassing” her because Gandara would not identify the errors for Plaintiff. App. 224-238 (Ex. S) and 435 (Ex. RR at ¶28). Rather, Gandara requested Plaintiff first try to identify the errors herself as a learning opportunity because Plaintiff had made similar errors in the past; if Plaintiff was unable to recognize all of the errors, Gandara told Plaintiff that she would have Dzhavadova go over the errors with her. App. 224-238 (Ex. S) and 427, 432-433 (Ex. RR at ¶¶11 and 24). Instead of thanking Gandara for the opportunity to self-correct her errors before the QA auditors found them, Plaintiff claimed it was “unfair” and stormed off. Id. Plaintiff later advised Gandara that she went through all the images in the unidentified queue and did not find any errors. Id. Accordingly, Gandara sent Dzhavadova to go over a few of the errors with Plaintiff. Id. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 26 of 58 PageID 615 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 19 On May 27, 2014, Gandara met with Plaintiff for a 10/10 meeting and inquired whether Plaintiff was using any of the techniques or suggestions Gandara previously made to Plaintiff on May 14, 2014. App. 224-238 (Ex. S) and 427, 435 (Ex. RR at ¶¶11 and 29). In response, Plaintiff stated that she was not using any of the techniques or suggestions because she felt the way she already did it was fine. Id. Tingdale found two high risk errors by Plaintiff in the queue on or about May 29, 2014. App. 124 (Ex. A, at pp. 486:11-487:15), 380-385 (Ex. KK), and 436 (Ex. RR at ¶30). Plaintiff does not dispute that the errors were committed by her. App. 124, 126 (Ex. A, at pp. 487:16-488:24 and 493:2- 10), 375 (Ex. II) and 436 (Ex. RR at ¶30). Moreover, Plaintiff does not contend Tingdale or any other QA Auditor discriminated or retaliated against her in any way in this lawsuit. App. 136 (Ex. A, at pp. 534:5-535:9 and 536:2-16). Plaintiff’s overall QA score for May 2014 was 93.33%—the lowest QA score in the entire department. Id. As such, Plaintiff’s QA score failed to comply with the terms of her PIP, which required Plaintiff to maintain a 98% monthly QA average for May. App. 121 (Ex. A, at p. 473:6-18), 344-345 (Ex. EE), 375 (Ex. II), and 436 (Ex. RR at ¶30). Due to Plaintiff’s increasingly combative and defiant behavior, the accumulation of four high risk alerts within a 90-day period, and failure to comply with the terms and conditions of her PIP, Gandara and Craig made the decision to terminate Plaintiff’s employment with the support of Associate Relations. App. 224-238 (Ex. S), 275-276 (Ex. W), 313-329 (Ex. Z), 344-345 (Ex. EE), 375 (Ex. II), 376-379 (Ex. JJ), 436-437 (Ex. RR at ¶¶31-32), 407-408 (Ex. OO at ¶¶7-8), and 415-416 (Ex. QQ at ¶¶4-5). Accordingly, on June 3, 2014, Plaintiff’s employment was terminated for unsatisfactory performance and having a poor attitude. App. 124-125 (Ex. A, at pp. 488:25-489:11). At the time Gandara and Craig decided to terminate Plaintiff’s employment, they were unaware that she made complaints of discrimination, harassment, or retaliation with Capital One in January 2013 or filed a charge of discrimination in February 2013. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 27 of 58 PageID 616 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 20 Shortly after Plaintiff’s termination—on the same day—Capital One received a demand for money from Mediation Worlds, PLLC, a company Plaintiff hired to represent her in asserting claims against Capital One. App. 127 (Ex. A, at p. 498:3-5), 376-379 (Ex. JJ), and 414-415 (Ex. QQ at ¶3). III. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56 mandates that a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). To avoid summary judgment, the plaintiff must present evidence—not simply conjecture and speculation. Grimes v. Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). A plaintiff must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Assertions of ultimate facts without supporting specifics will not suffice to avoid summary judgment. Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986). Courts should grant summary judgment “not only when the non-movant presents no evidence, but also when there is not a sufficient conflict in substantial evidence to create a jury question.” Scott v. Univ. of Miss., 148 F.3d 493, 504 (5th Cir. 1998). “A mere scintilla of evidence is insufficient to present a question for the jury.” Id. As explained in detail below, no genuine issue of material fact exists with respect to Plaintiff’s race discrimination, age discrimination, or retaliation claims. Capital One is, therefore, entitled to summary judgment as a matter of law. IV. ARGUMENTS AND AUTHORITIES A. Applicable burden-shifting analysis for Plaintiff’s race discrimination, age discrimination, and retaliation claims under McDonnell Douglas. All of Plaintiff’s claims are analyzed under the McDonnell-Douglas framework.15 Thus, if Plaintiff establishes a prima facie case of race discrimination, age discrimination, or retaliation—which 15 Plaintiff’s race discrimination claims under Title VII and the Texas Labor Code, as well as her age discrimination claims under the ADEA and the Texas Labor Code are analyzed in the same manner. See Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445–46 (Tex. 2004); Jackson v. Honeywell Intern., Inc., 601 F. App’x 280, 283 n. 1 (5th Cir. 2015). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 28 of 58 PageID 617 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 21 she cannot do—then the burden shifts to Capital One to articulate a legitimate, non-discriminatory/non- retaliatory reason for taking the alleged adverse employment action (i.e., failing to promote Plaintiff to Team Lead, denying Team Lead training to Plaintiff, and/or terminating Plaintiff’s employment). See EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1443 (5th Cir. 1995). If Capital One satisfies this requirement, then Plaintiff has the ultimate burden of establishing by a preponderance of the evidence that Capital One’s proffered reason is not the true reason but instead is a pretext for discrimination. Additionally, with respect to Plaintiff’s age discrimination claims and retaliation claims, Plaintiff must show “but for” causation in order to defeat summary judgment. In other words, Plaintiff must demonstrate that “but for” her age, the adverse employment action would not have occurred—or that “but for” her alleged protected activity, the adverse employment action would not have occurred. B. As a matter of law, Plaintiff cannot establish a race or age discrimination claim based on Capital One’s alleged failure to promote her to Team Lead in 2012. Plaintiff contends Capital One discriminated against her based on her race and age by failing to promote her to Team Lead in October 2012 and, instead, promoting Vogel, who is White and younger than her. App. 130-131 (Ex. A, at pp. 512:19-513:18) and 383-392 (Ex. LL). 1. Plaintiff cannot establish a prima facie case of race or age discrimination based on Capital One’s alleged failure to promote her to Team Lead because she has no evidence was qualified for the position. In order to establish a prima facie case of race or age discrimination for a failure to promote claim, Plaintiff must show that: (1) she belongs to a protected class; (2) she applied to and was qualified for a position for which applicants were being sought; (3) she was rejected for the position; and (4) another applicant not belonging to the protected class was hired. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004); Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680–81 (5th Cir. 2001). Plaintiff has no evidence she was qualified for the position. Between 2008 and 2011, Plaintiff received repeated feedback on her performance reviews that she failed to exhibit leadership skills necessary for the position of Team Lead, including the competencies of influence and communication. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 29 of 58 PageID 618 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 22 App. 172-181 (Ex. F-I) and 415 (Ex. QQ at ¶4). Plaintiff even failed to participate in team meetings, often times appearing withdrawn and quiet. Id. Further evidencing her lack of qualifications, Plaintiff refused to follow the guidance provided by her managers to gain these necessary leadership skills. For example, Plaintiff’s manager in 2010 suggested she participate on a Quality Circle team to improve her influence and communication skills. App. 37 (Ex. A, at pp. 142:13-143:4), 177-179 (Ex. H), and 415 (Ex. QQ at ¶4). Instead of joining a Quality Circle in 2011, as suggested, Plaintiff joined the I-Team, a social event planning group that (unlike a Quality Circle) had nothing to do with development of the associates’ job and leadership skills. App. 37-39, 70, 80 (Ex. A, at pp. 143:21-144:10, 147:17-23, 150:11-151:8, 270:5-11, and 310:25-312:8) and 426 (Ex. RR at ¶9). When Plaintiff’s manager yet again addressed her continued problems with communication and influence skills on her 2011 performance review, the manager tried again to encourage Plaintiff to join a Quality Circle to improve these skills. But, as she did the year before, Plaintiff ignored her manager’s suggestions on how to improve her leadership skills and failed to join a Quality Circle in 2012. App. 38-39 (Ex. A, at pp. 149:14-150:7). Moreover, at the time the Team Lead position became available in 2012, Plaintiff failed to demonstrate satisfactory performance in her position and, therefore, was not qualified for an advancement to Team Lead. For example, Plaintiff received an overall performance rating of “inconsistent” on her 2012 performance review. App. 49 (Ex. A, at pp. 190:3-191:7), 182-183 (Ex. J), 400-402 (Ex. NN at ¶9), and 415, 417-418 (Ex. QQ at ¶¶4 and 8). The review specifically noted Plaintiff did “not communicate effectively with peers and supervisors” and “is not sought out by her team member[s] for input despite her tenure in the team.” App. 182-183 (Ex. J), 400-402 (Ex. NN at ¶9), and 415 (Ex. QQ at ¶4). The review also noted Plaintiff had quality assurance issues, including having several errors in her overall QA score during the year, improperly filling out trackers, and moving files to the wrong location. Id. Plaintiff even admits to having at least three QA errors during 2012. App. 49 (Ex. A, at p. 193:6-22). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 30 of 58 PageID 619 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 23 Plaintiff’s self-serving contention that she “deserved” the Team Lead position because she wanted it and had been asking for it, does not demonstrate she was qualified for the position. App. 48 (Ex. A, at p. 189:16-24). Rather, the evidence conclusively demonstrates that Plaintiff was not qualified for the position of Team Lead in 2012. App. 172-183 (Ex. F-J), 400-404 (Ex. NN at ¶¶9-13), 411-412 (Ex. PP at ¶¶5-6), and 415 (Ex. QQ at ¶4). See Granderson v. JP Morgan Chase & Co., No. 3:13-CV- 0536-B, 2015 WL 746643, at *12-15 (N.D. Tex. Feb. 23, 2015) (granting summary judgment on failure to promote race discrimination claim because the plaintiff could not establish he was qualified for a team lead promotion where he had received poor performance reviews that consisted of overall ratings of “meets expectations” but contained needs improvement ratings on several distinct objectives and competencies); see also Martin v. Kroger Co., 65 F. Supp. 2d 516, 543 (S.D. Tex. 1999), aff’d, 224 F.3d 765 (5th Cir. 2000) (finding it “inconceivable” that the plaintiff could contend she was wrongfully denied a promotion when she consistently received poor performance reviews and feedback about the need to improve her performance). 2. Capital One has articulated legitimate, non-discriminatory reasons for not promoting Plaintiff to Team Lead in 2012. For the legitimate, non-discriminatory reasons stated in section B.1. above, Capital One did not promote Plaintiff to Team Lead in 2012. In addition, Capital One had legitimate, non-discriminatory reasons for promoting Vogel instead. In vast contrast to Plaintiff, whose performance was evaluated as “inconsistent” in 2012, Vogel’s performance was evaluated as “very strong.” App. 182-183 (Ex. J), 400-402 (Ex. NN at ¶¶8-9), and 417-418 (Ex. QQ at ¶8). Indeed, unlike Plaintiff, Vogel knew all the processes in the Vault department, demonstrated above-satisfactory performance on a consistent basis, assisted with training new associates, performed complex tasks such as conducting research for audits, and was viewed as a leader by other associates in the department. App. 399-400 (Ex. NN at ¶¶5 and 8) and 410-411 (Ex. PP at ¶3). Plaintiff even admits Vogel was acting in an interim Team Lead capacity before his October 28, 2012 promotion to Team Lead and has never claimed that he performed poorly in the position. App. 47, 80 (Ex. A, at p. 185:15-17 and 309:12-310:17). Since Vogel was more qualified Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 31 of 58 PageID 620 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 24 than Plaintiff, Capital One had legitimate, non-discriminatory reasons for selecting Vogel over Plaintiff for the Team Lead position in 2012. 3. Plaintiff cannot establish Capital One’s legitimate, non-discriminatory reasons for not promoting her to Team Lead in 2012 were pre-textual and the real reason was based on her race or age. To establish that Capital One’s legitimate, non-discriminatory reason was pretext for discrimination, Plaintiff must present evidence that she “was clearly better qualified for the [Team Lead] position.” See Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002); see also EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) (“A fact finder can infer pretext if it finds that the employee was ‘clearly better qualified’ (as opposed to merely better or as qualified) than the employees who are selected.”). Thus, “[i]n order to establish pretext by showing the losing candidate has superior qualifications, the losing candidate’s qualifications must ‘leap from the record and cry out to all who would listen that [s]he was vastly—or even clearly—more qualified for the subject job.’” See Price, 283 F.3d at 723, citing Odom v. Frank, 3 F.3d 839, 845-46 (5th Cir. 1993). As the undisputed record clearly demonstrates, Plaintiff’s tenure with Capital One was marked with a checkered record of substandard performance, which not only included quality standards issues but also involved repeated deficiencies in the competencies of influence and communication, which are necessary skills for a Team Lead. App. 172-181 (Ex. F-I), 400-404 (Ex. NN at ¶¶9-13), 411-412 (Ex. PP at ¶¶5-6), and 415 (Ex. QQ at ¶4). On the other hand, Vogel demonstrated the ability to quickly learn the various processes in the Vault and the leadership skills necessary to be a Team Lead. App. 182-183 (Ex. J), 399-400 (Ex. NN at ¶¶5 and 8), 410-411 (Ex. PP at ¶3), and 417-418 (Ex. QQ at ¶8). Plaintiff could not point to any specific skill or qualification that Vogel lacked in order to be a Team Lead nor could she provide any examples of where Vogel failed to exhibit the skills necessary to be a Team Lead. Rather, Plaintiff makes the conclusory assertion that Vogel was unqualified for the Team Lead position because he allegedly told her that he had no prior experience performing the same type of work they performed for Capital One, which constitutes nothing more than a conclusory statement based Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 32 of 58 PageID 621 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 25 on inadmissible hearsay. App. 80 (Ex. A, at pp. 309:12-310:17). Thus, Plaintiff has no evidence that Vogel was not qualified for the position of Team Lead. The Fifth Circuit has held that a court “should be reluctant to substitute [its] views for those of the individuals charged with evaluating [candidates for a promotion]” and should do so only if the disparities in qualifications “are so apparent as virtually to jump off the page and slap [the court] in the face.” See La. Office of Cmty. Servs., 47 F.3d at 1445. Under this standard, the summary judgment evidence regarding Plaintiff and Vogel’s respective qualifications certainly does not support any finding that Plaintiff was clearly better qualified than Vogel for the position of Team Lead. Furthermore, Plaintiff has no evidence that Capital One’s reasons for not promoting her to Team Lead were false or unworthy of credence. S.W. Bell Tel., L.P. v. Edwards, No. 05-09-00606-CV, 2011 WL 3672288, at *3-6 (Tex. App.—Dallas Aug 23, 2011, no pet.) (summary judgment for employer where plaintiff failed to demonstrate he was not clearly better qualified for a promotion than the candidate selected and had no evidence employer’s reason for promoting another candidate because he was more qualified than plaintiff was false or unworthy of credence). First, Plaintiff testified she has no knowledge of Vogel’s performance record, reviews, or disciplinary history. App. 48, 80 (Ex. A, at pp. 186:14-16 and 310:5-6). Second, Plaintiff’s contention Vogel was promoted to Team Lead because he was allegedly in a personal and romantic relationship with Dzhavadova is not evidence of discrimination as a matter of law. App. 48-49, 74-75 (Ex. A, at pp. 186:22-3, 187:1-188:16, 189:25-190:2, and 288:22- 289:4) See Harvey v. Chevron U.S.A., Inc., 961 F. Supp. 1017, 1029 (S.D. Tex. 1997) (“Alleged favoritism to a paramour [i.e., a lover] generally has been held not to constitute discrimination in violation of Title VII because the alleged discrimination is not based on the plaintiff's gender [or other protected characteristic at issue].”); see also Wal-Mart Stores, Inc. v. Guzman, No. 13-97-260-CV, 1999 WL 34973310, at *7 (Tex. App.—Corpus Christi Apr. 8, 1999, no pet.) (preferential treatment of a paramour, while perhaps unfair, is not discrimination on the basis of sex in violation of Title VII in a gender discrimination case). Third, Plaintiff has failed to produce any evidence of discriminatory Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 33 of 58 PageID 622 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 26 animus based on race or age on the part of Cornejo or Stanaland, who made the decision to promote Vogel to Team Lead.16 App. 399-400 (Ex. NN at ¶¶5 and 6) and 410-411 (Ex. PP at ¶¶3-4). Capital One is, therefore, entitled to summary judgment as a matter of law on Plaintiff’s failure to promote discrimination claims under Title VII, the ADEA, and the Texas Labor Code because Plaintiff cannot establish she was qualified for the Team Lead position and because she cannot show she was clearly more qualified than Vogel for the Team Lead position or otherwise demonstrate pretext. C. As a matter of law, Plaintiff cannot establish a claim for race discrimination or age discrimination based on Capital One’s alleged failure to provide her with Team Lead training or for terminating her employment. In addition to Plaintiff’s failure to promote race discrimination and age discrimination claims analyzed above, Plaintiff also alleges Capital One discriminated against her based on her race and age by allegedly failing to provide her with Team Lead training and terminating her employment. App. 130- 131 (Ex. A, at pp. 512:19-514:24) and 383-392 (Ex. LL). 1. Plaintiff cannot establish a prima facie case of race or age discrimination because she has no evidence she was subjected to an adverse employment action, treated less favorably than other similarly-situated associates outside her protected classes, that Capital One replaced her, or that she was otherwise discharged because of age. In order to establish a prima facie case of race discrimination under Title VII or the Texas Labor Code, Plaintiff must show: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) she was treated less favorably than others similarly situated and outside of the protected class or replaced by someone outside the protected class. See Aurora v. Starwood Hotels & Resorts Worldwide, Inc., 294 F. App’x 159, 161 (5th Cir. 2008); Richardson v. Prairie Opportunity, Inc., 470 F. App’x 282, 285 (5th Cir. 2012). 16 Plaintiff’s subjective belief that she was not promoted to the Team Lead position because of her race or age is not competent summary judgment and cannot defeat Capital One’s legitimate, non-discriminatory reasons for not promoting Plaintiff to Team Lead. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999) (per curiam) (“[A] subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief.”); Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995) (“[B]ald assertions of . . . discrimination are inadequate to permit a finding that proscribed discrimination motivated [the defendant’s] actions against [the plaintiff].”). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 34 of 58 PageID 623 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 27 Similarly, in order to establish a prima facie case of age discrimination under the ADEA and the Texas Labor Code, Plaintiff must show: (1) she suffered an adverse employment action; (2) she was qualified for the position; (3) she was within the protected class when the adverse action occurred; and (4) was replaced by someone younger or outside the protected class, treated less favorably than a similarly situated younger employee, or otherwise discharged because of her age. See Maestas v. Apple, Inc., 546 F. App’x. 422, 425–26 (5th Cir. 2013). Plaintiff’s race and age discrimination claims fail on their face because Plaintiff cannot establish the basic elements of a prima facie case for discrimination as demonstrated in great detail below. (a) Plaintiff’s claims are barred as a matter of law. (i) Denying training opportunities does not constitute an adverse employment action. Failing to provide an associate with training cannot be the underlying basis of a discrimination claim because it does not constitute an adverse employment action as a matter of law. Specifically, it is well-established in the Fifth Circuit that in order to prevail on a claim for race or age discrimination, a plaintiff must prove that she suffered an adverse employment action in the form of an “ultimate employment decision.” McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007); see also Lopez v. Kempthorne, 684 F. Supp. 2d 827, 854 (S.D. Tex. 2010) (“Title VII was only designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.”). Ultimate employment decisions include hiring, granting leave, discharging, promoting, and compensating. McCoy, 492 F.3d at 559; see also Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014). The Fifth Circuit has consistently held that failing to train an employee does not constitute an adverse employment action as a matter of law. See Brooks v. Firestone Polymers, L.L.C., 640 F. App’x 393, 397 (5th Cir. 2016) (African American plaintiffs could not demonstrate an adverse employment decision where they alleged employer denied them training); see also Roberson v. Game Stop/Babbage's, 152 F. App’x 356, 361 (5th Cir. 2005) (no adverse employment action where plaintiff alleged she was denied training because Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 35 of 58 PageID 624 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 28 of her race and denial of training ultimately led to her demotion); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999) (no adverse employment action where plaintiff was denied access to training on specialized filing software); Dollis v. Rubin, 77 F.3d 777, 799, 781 (5th Cir. 1995) (no adverse employment action where plaintiff was denied attendance at training conference). Accordingly, Plaintiff not only has no evidence Capital One failed to provide her with training needed to become a Team Lead,17 but she also cannot establish an actionable claim for race or age discrimination based on Capital One’s alleged denial of training opportunities because she suffered no adverse employment action by being denied the training. (ii) Plaintiff failed to exhaust administrative remedies, as a matter of law, to assert a race or age discrimination claim based on her termination. In order to timely exhaust administrative remedies to be able to maintain an actionable discrimination claim, a plaintiff must file a charge of discrimination with the EEOC or TWC within 180 days (for state law claims) or 300 days (for federal law claims) of the alleged discriminatory act or occurrence. A charge of discrimination must be filed for each discrete discriminatory act or adverse employment action. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (“A discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’ A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.”). The United States Supreme Court has found that “discrete acts, such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify” and “are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 113; see also Brooks, 70 F. Supp. 3d at 837. Each discrete discriminatory act starts a new clock for filing charges alleging that act, and as 17 Of note, Plaintiff has no evidence Capital One denied her training opportunities needed to become a Team Lead. The only alleged “training” Plaintiff contends was required to become a Team Lead was learning all the processes in the department, which Plaintiff estimated to be ten processes in total. App. 28, 34 (Ex. A, at pp. 106:12-24 and 133:6-134:2). However, as Plaintiff acknowledges, she learned and worked on at least ten processes during her employment with Capital One. App. 28, 31, 33-36, 39-41, 44, 81, 96-97 (Ex. A. at pp. 106:22-24, 118:1-4, 126:22- 127:17, 132:3-134:2, 136:1-10, 136:15-20, 140:24-141:10, 151:12-16, 154:4-155:13, 161:5-8, 171:16-18, 313:24-314:2, and 376:14-377:1). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 36 of 58 PageID 625 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 29 such, a charge must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred in order to exhaust administrative remedies for that act. Brooks, 70 F. Supp. 3d at 837. In this case, it is undisputed Plaintiff filed only one Charge with the EEOC—on February 22, 2013, over fifteen months before her termination. App. 88 (Ex. A, at pp. 343:15-344:12) and 222 (Ex. Q). Plaintiff’s only claims asserted in the Charge were for alleged race and age discrimination based on “being denied training opportunities [her] younger white counterparts were given to become leads[,]” being “passed over for a promotion to a lead, a job that was given to a younger white counterpart[,]” and for being retaliated against by being given a poor performance review after she reported alleged discrimination to Capital One. App.89 (Ex. A, at p. 348:8-20) and 222 (Ex. Q). Plaintiff’s Charge makes absolutely no mention of her termination because her termination had not yet occurred. App. 124-125 (Ex. A, at pp. 488:25-489:11) and 222 (Ex. Q). Moreover, Plaintiff never filed a supplemental or amended charge to complain about her termination. App. 88 (Ex. A, at pp. 343:15-344:12). In fact, Plaintiff’s Charge was dismissed by the EEOC approximately two months before her termination. App. 93, 124-125 (Ex. A, at pp. 362:17-23 and 488:25-489:11) and 223 (Ex. R). Plaintiff’s Charge clearly did not exhaust her administrative remedies related to her termination because once the Charge was dismissed by the EEOC on April 15, 2014, no actions occurring thereafter—such as her termination—could have been investigated by the EEOC as a result of the Charge. See Ocampo v. Lab. Corp. of Am., No. SA04CA538-FB, 2005 WL 2708790, at *7 (W.D. Tex. Sept. 6, 2005) (plaintiff’s age discrimination claim based on her termination was barred for failure to exhaust administrative remedies where plaintiff filed a charge of discrimination and received a right-to- sue letter before her termination); see also Foster v. Tex. Health Sys., No. 3:00-CV-1217-L, 2002 WL 1461737, at *5-6 (N.D. Tex. June 20, 2002) (dismissing plaintiff’s race discrimination claim based on her termination because it could not reasonably be expected to grow out of a previously filed charge of discrimination where the EEOC issued plaintiff a right-to-sue letter before her termination). Therefore, Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 37 of 58 PageID 626 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 30 Plaintiff cannot establish a claim for race or age discrimination based on her termination as a matter of law because she failed to exhaust her administrative remedies to be able to assert the claims. (b) Plaintiff has no evidence of disparate treatment relating to Capital One’s alleged denial of Team Lead training. Plaintiff contends Jason Crain (“Crain”) (White; DOB—12/04/1982), Amy Rose (“Rose”)18 (unknown), Vogel, Wyatt Wolfe (“Wolfe”) (White; DOB—04/21/1973) were treated more favorably than her because Dzhavadova provided them with training to be a Team Lead and/or allowed them to cover Dzhavadova’s job duties when she was away. App. 74, 79*80 (Ex. A, at pp. 286:5-290:14, 308:19-309:11) and 418-419 (Ex. QQ at ¶10). However, none of the individuals identified by Plaintiff are proper comparators to her because they did not have nearly identical records of unsatisfactory performance, quality assurance errors, or defiant and combative attitudes like Plaintiff. App. 419 (Ex. QQ at ¶12). In fact, all the associates Plaintiff identifies as receiving more training than her—Vogel and Wolfe19—had better overall performance review ratings than Plaintiff for 2012 and 2013. Id. The Fifth Circuit and Texas districts courts have repeatedly held that in order for an employee to be similarly situated to a plaintiff, the employee’s circumstances, including their misconduct or poor performance, must have been “nearly identical” to the plaintiff. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (it is critical that the plaintiff’s conduct that drew the adverse employment decision be “nearly identical” to that of the proffered comparator); see also Okoye v. Univ. of Tex. Houston Health Sci., 245 F.3d 507, 514 (5th Cir. 2001) (in order to be similarly situated, the misconduct for which the plaintiff was discharged must be nearly identical to that engaged in by the proffered comparator); Perez v. Tex. Dep’t of Criminal Justice, Inst’l Div., 395 F.3d 206, 213 (5th Cir. 2004) (for employees to be similarly situated, those employees’ circumstances, including their misconduct, must 18 Capital One has no record of an associate named Amy Rose who worked in the Vault Department. App. 419 (Ex. QQ at ¶11). 19 Crain stopped working in the Vault department in August 2011, so his performance is irrelevant. App. 419 (Ex. QQ at ¶12). Plaintiff specifically limits her claims in this lawsuit to beginning on May 1, 2012. App. 89 (Ex. A, at p. 346:21-23) and 222 (Ex. Q). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 38 of 58 PageID 627 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 31 have been nearly identical); Beltran v. Univ. of Texas Health Sci. Ctr. at Houston, 837 F. Supp. 2d 635, 642 (S.D. Tex. 2011) (plaintiff failed to establish prima facie case of discrimination where he failed to identify any incidents in which other employees obtained poor performance evaluations, misdiagnosed dental injuries, or failed to run codes in emergency situations but were not placed on probation or terminated like him); Matthews v. City of Houston Fire Dept., 609 F. Supp. 2d 631, 644 (S.D. Tex. 2009) (holding that “employees with different disciplinary records are not nearly identical” and plaintiff “failed to identify a single co-worker who was treated differently with regard to evaluations or terminations” so she failed to establish a prima facie case of discrimination as a matter of law). (c) In connection with Plaintiff’s race and age discrimination claims based on her termination, Plaintiff has no evidence of disparate treatment, replacement by a non-Black or someone younger, or that she was otherwise discharged because of her age. With regards to Plaintiff’s race and age discrimination claims based on her termination (i.e., assuming, arguendo, Plaintiff’s termination claim is not barred by a failure to exhaust administrative remedies), Plaintiff cannot identify a suitable comparator to establish disparate treatment or establish Capital One replaced her with a non-Black or younger associate. Specifically, the only other associates Plaintiff contends were treated more favorably than her are Tabitha Leal (“Leal”) (White; DOB— 06/06/1990), and James Brandon (“Brandon”) (White; DOB—02/17/1977).20 App. 135-136 (Ex. A, at pp. 531:1-534:2) and 418-419 (Ex. QQ at ¶10). Plaintiff claims Dzhavadova provided Leal and Brandon with preferential treatment by allowing them additional time to pull files, but Dzhavadova still required Plaintiff to pull files within the same day. App. 135 (Ex. A, at pp. 531:1-532:6). However, Leal and Brandon are not proper comparators to Plaintiff with respect to her termination claims for several reasons:  Leal and Brandon were temporary, contract associates during the time period they worked in the Vault. App. 420 (Ex. QQ at ¶14). 20 Plaintiff’s contentions that Crain, Rose, Vogel, and Wolfe were treated more favorably relate solely to her discrimination claim based on allegedly being denied training opportunities needed to become a Team Lead. App. 74- 75, 79-80 (Ex. A, at pp. 286:5-290:14, 308:19-309:11). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 39 of 58 PageID 628 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 32  Neither Leal nor Brandon worked in the Vault department on or after May 1, 2012 (the date Plaintiff alleges in her Charge that the alleged race and age discrimination began). App. 222 (Ex. Q) and 420 (Ex. QQ at ¶14).  Plaintiff has no evidence that Leal or Brandon had similar records of poor performance and attitude to her.  The alleged preferential treatment provided to Leal and Brandon is wholly unrelated to the basis for Plaintiff’s termination and Plaintiff did not even work a process that required her to pull files during the last five months of her employment. App. 135 (Ex. A, at pp. 531:1- 532:6), App. 275-276 (Ex. W), 313-329 (Ex. Z), 344-345 (Ex. EE), 375 (Ex. II), 376-379 (Ex. JJ), 421 (Ex. RR at ¶2), and 407-408 (Ex. OO at ¶7), and 415-416 (Ex. QQ at ¶¶4-5).  Plaintiff identifies Dzhavadova as the only person who treated Leal and Brandon more favorably, but Dzhavadova was not involved in the decision to terminate Plaintiff’s employment. App. 135 (Ex. A, at pp. 531:1-532:6) 436 (Ex. RR at ¶31) and 407-408 (Ex. OO at ¶7). Additionally, Plaintiff has no evidence Capital One replaced her with someone outside her protected race or age group because her job duties were absorbed by other temporary and permanent associates after her termination. App.437 (Ex. RR at ¶33). “‘When a terminated employee’s job duties are distributed among other employees after termination, those employees do not replace the terminated employee.’” See Ellini v. Ameriprise Fin., Inc., 881 F. Supp. 2d 813, 820 (S.D. Tex. 2012), citing Martin v. Bayland, Inc., 403 F. Supp.2d 578, 583 (S.D. Tex. 2005), aff’d 181 F. App’x 422 (5th Cir. 2006); see also Horak v. Glazer’s Wholesale Drug Co., Inc., No. 3:05-CV-901-K, *4 (N.D. Tex. July 19, 2006), aff’d No. 06-10854, 2007 WL 713154 (5th Cir. Mar. 6, 2007). Furthermore, temporary associates are contracted to meet immediate staffing needs upon the departure of a permanent associate in the Vault department. App. 437 (Ex. RR at ¶33). Accordingly, Plaintiff has no evidence Capital One “replaced” her with someone outside of her protected class. Similarly, due to Plaintiff’s substandard performance and poor attitude, Plaintiff cannot establish Capital One otherwise discharged her because of her age. See Section B.2. below. App. 224-238 (Ex. S), 275-276 (Ex. W), 313-329 (Ex. Z), 344-345 (Ex. EE), 375 (Ex. II), 376-379 (Ex. JJ), 427-437 (Ex. RR at ¶¶11-32), 407-408 (Ex. OO at ¶¶7-8), and. 415 (Ex. QQ at ¶4). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 40 of 58 PageID 629 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 33 For all the foregoing reasons, Plaintiff cannot establish a prima facie case of race discrimination under Title VII and the Texas Labor Code or age discrimination under the ADEA and the Texas Labor Code as a matter of law, entitling Capital One to summary judgment. 2. To the extent the Court finds Capital One denied Plaintiff training opportunities needed to become a Team Lead, Capital One had legitimate, non-discriminatory reasons for doing so and for terminating Plaintiff’s employment. (a) Plaintiff was not qualified for Team Lead training. Plaintiff contends that the only training and prerequisite for becoming a Team Lead for which she is aware was learning all the processes in the Vault department, which she estimates to be approximately ten processes in total. App. 34-35 (Ex. A, at pp. 133:6-134:2). Plaintiff, however, admits to learning and working at least ten processes throughout her employment with Capital One. App. 28, 31, 33-36, 39-41, 44, 81, 96-97 (Ex. A. at pp. 106:22-24, 118:1-4, 126:22-127:17, 132:3-134:2, 136:1- 10, 136:15-20, 140:24-141:10, 151:12-15, 154:4-155:13, 161:5-8, 171:16-18, 313:24-314:2, and 376:14- 377:1). Accordingly, Capital One provided Plaintiff with sufficient training to learn the processes needed to become a Team Lead, but Plaintiff failed to consistently demonstrate she was capable of satisfactorily completing the processes, even when she was only working one or two processes at a time, much less that Plaintiff was capable of mastering all the processes in the Vault, which is a requirement for a Team Lead. App. 182-185 (Ex. J-K), 224-238 (Ex. S), 258-274 (Ex. V), 295-329 (Ex. Y-Z), 330- 345 (Ex. AA-EE), 356-379 (Ex. HH-JJ), 427-437 (Ex. RR at ¶¶11-32), 400-404 (Ex. NN at ¶¶9-13), and 415-416 (Ex. QQ at ¶¶4-5). For example, as noted in Plaintiff’s 2012 performance review, she made several QA errors, failed to properly complete her tracker, and regularly failed to meet daily production goals. App. 182-183 (Ex. J), 400-402 (Ex. NN at ¶ 9) and 415 (Ex. QQ at ¶4). Plaintiff also ignored her managers’ efforts to provide her with leadership training and improve her performance, influence and communication skills. App. 172-185 (Ex. F-K), 224-238 (Ex. S), 275-276 (Ex. W), 313-329 (Z), 344- 345 (Ex. EE), 356-374 (Ex. HH), 376-379 (Ex. JJ), 427-436 (Ex. RR at ¶¶11-30), and 415 (Ex. QQ at ¶4). Plaintiff failed to join a Quality Circle team in 2011 and 2012 after receiving feedback from her Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 41 of 58 PageID 630 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 34 manager on her 2010 and 2011 performance reviews that she needed to join a Quality Circle to improve her leadership skills. App. 39-38 (Ex. A, at pp. 148:21-150:7), 177-179 (Ex. H), 180-181 (Ex. I), and 415 (Ex. QQ at ¶4). Similarly, Plaintiff knowingly failed to complete the COU courses Gandara instructed her to complete, and failed to implement any of Gandara’s suggested techniques for improving her performance despite having recurring QA errors and communication issues with her peers and supervisors. App. 98 (Ex. A, at pp. 383:5-384:9), 224-238 (Ex. S), and 428-429 (Ex. RR at ¶14). Plaintiff even questioned management’s motivation for moving her into a new process in 2014, even though learning each process is a requirement for becoming a Team Lead. App. 97-98 (Ex. A, at p. 380:23-381:6), 224-238 (Ex. S), and 428 (Ex. RR at ¶13). Plaintiff is under the mistaken belief that just because she expressed an interest in a Team Lead position that Capital One was under an obligation to provide her with Team Lead training. App. 48, 82 (Ex. A, at pp. 189:16-24 and 317:2-8). Plaintiff’s repeated failure to self-correct her performance deficiencies and take initiative to improve her communication and influence skills, coupled with her poor attitude, clearly demonstrate she was unqualified to be a Team Lead. As such, providing her with Team Lead training, just because she allegedly requested it, would have been futile and a waste of time and resources. Accordingly, even if Capital One denied Plaintiff Team Lead training as Plaintiff contends, which Capital One denies, it did so for legitimate, non-discriminatory reasons—namely, Plaintiff’s substandard performance, poor attitude, and refusal to correct her performance deficiencies as a Clerical Associate made her ineligible and unqualified to be trained for the more advanced position of a Team Lead. (b) Plaintiff’s unsatisfactory performance and poor attitude justified Capital One terminating her employment. Capital One terminated Plaintiff’s employment for legitimate, non-discriminatory reasons— namely, her poor attitude and unsatisfactory performance. App. 184-185 (K), 224-238 (Ex. S), 275-276 (Ex. W), 313-329 (Ex. Z), 344-353 (Ex. EE-FF), 356-379 (Ex. HH-JJ), 427-437 (Ex. RR at ¶¶11-32), and 415-417 (Ex. QQ at ¶¶4-5). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 42 of 58 PageID 631 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 35 Specifically, Plaintiff’s defiant, disrespectful, and defensive attitude reached an intolerable level that justified the termination of her employment. As repeatedly demonstrated by Plaintiff’s conduct and her yearly performance reviews, she lacked effective communication skills with her managers and co- workers and appeared to be overly defensive and combative when her Team Leads or managers provided her with constructive feedback and criticism. For example:  Plaintiff was withdrawn during team meetings. App. 172-181 (Ex. F-I) and 415 (Ex. QQ at ¶4).  Plaintiff failed to complete the COU courses Gandara instructed her to complete in order to improve her performance. App. 98 (Ex. A, at pp. 383:5-384:9), 224-238 (Ex. S), and 428- 429 (Ex. RR at ¶14).  Plaintiff insubordinately and disrespectfully told Gandara that Gandara should fix the grammatical errors in Plaintiff’s review before Gandara criticized Plaintiff’s grammar. App. 100-101 (Ex. A, at pp. 392:25-393:11) and 428-429 (Ex. RR at ¶14).  Plaintiff stormed off in the middle of a conversation with Gandara when Gandara was trying to help Plaintiff.  Plaintiff rolled her eyes at her managers when she disagreed with them. Even after Capital One issued Plaintiff a Conduct Memo—a final warning—for repeatedly exhibiting inappropriate behavior, including being “argumentative, disruptive, and unprofessional when communicating with her co-workers and managers,” Plaintiff’s poor attitude continued. App. 275-276 (Ex. W) and 431 (Ex. RR at ¶18). For instance, she refused to implement any of Gandara’s suggestions to improve her performance (e.g., Plaintiff take a few months earlier, using tick marks and a manual click to track production, etc.) and also refused to create a satisfactory action plan to improve her performance as requested by Gandara and required by her PIP. App. 224-238 (Ex. S), 344-345 (Ex. EE), 375 (Ex. II), 346-353 (Ex. FF), 376-379 (JJ), and 427, 434-435 (Ex. RR at ¶¶11 and 27). Accordingly, Plaintiff’s poor attitude constituted a legitimate, non-discriminatory reason for her termination. See White v. Burke Ctr., 516 F. App’x 392, 392-93 (5th Cir. 2013) (employer had legitimate, non-discriminatory reasons for terminating plaintiff’s employment where plaintiff continued to disregard express instructions and repeatedly refused to comply with instructions and guidelines for Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 43 of 58 PageID 632 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 36 his position even after being counseled numerous times and being placed on probation for committing errors); see also Grise v. Betz Labs., Inc., No. 3:96-CV-2353-R, 1997 WL 667936, at *5 (N.D. Tex. Oct. 21, 1997) (plaintiff’s unwillingness to follow directives, refusal to be a team player, and failure to perform “as was expected of an employee in [his] position, despite repeated warnings that such continued behavior would result in his immediate termination” constituted legitimate, nondiscriminatory reasons for termination). In addition, Plaintiff’s unsatisfactory performance, which failed to comply with Capital One’s quality assurance expectations for the Vault department, constituted a legitimate, non-discriminatory reason for her termination. Specifically, at the time of Plaintiff’s termination, Capital One’s expectations for the Vault department required associates who accumulated four or more risk alerts/errors within a 90-day rolling period to be terminated. App. 167-169 (Ex. D) and 425 (Ex. RR at ¶7). In addition, Capital One required associates to maintain a 98% QA average. App. 28 (Ex. A, at p. 109:7-22), 167-169 (Ex. D), 425 (Ex. RR at ¶7), and 405-406 (Ex. OO at ¶3). By the end of April 2014, Plaintiff’s six month QA average was only 95%. App. 344-345 (Ex. EE), 432 (Ex. RR at ¶24), and 415 (Ex. QQ at ¶4). In fact, Plaintiff had the lowest QA score of any associate in the department in April 2014 (86.67%) because she committed two high risk QA errors that made Capital One susceptible to liability. App. 114 (Ex. A, at p. 466:21-467:2), 313-329 (Ex. Z), 432 (Ex. RR at ¶22). Accordingly, Plaintiff was issued a 90-day PIP that required her to maintain a 98% QA average for May, June, and July 2014. App. 119-120 (Ex. A, at pp. 468:25-469:12), 344-345 (Ex. EE), 425 (Ex. RR at ¶7), and 415 (Ex. QQ at ¶4). Plaintiff unequivocally testified that she knew her employment would be terminated if she failed to maintain a 98% QA average for the next 90 days. App. 121 (Ex. A, at p. 473:6-18). Nonetheless, Plaintiff accumulated two more high risk alerts in May, making her monthly QA average for May 2014 93.33%—the lowest score in the department yet again. App. 124 (Ex. A, at pp. 487:16- 488:24), 356-374 (Ex. HH), 436 (Ex. RR at ¶30). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 44 of 58 PageID 633 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 37 Thus, Capital One had the following legitimate, non-discriminatory reasons for terminating Plaintiff’s employment in connection with her unsatisfactory performance: (1) her QA score did not meet Capital One’s 98% expectation; (2) she failed to comply with the terms of her PIP by maintaining a 98% QA score for the month of May 2014; and (3) she accumulated four risk alerts/errors within a 90- day period, which required her employment be terminated under Capital One’s guidelines for the Vault department. See Johnson v. Parkwood Behavioral Health Sys., 551 F. App’x 753, 756 (5th Cir. 2014) (repeated deficient performance was legitimate, non-discriminatory reason for plaintiff’s discharge); Earle v. Aramark Corp., 247 F. App’x 519, 524 (5th Cir. 2007) (poor job performance was legitimate non-discriminatory reason for plaintiff’s termination); McDowell v. Home Depot, U.S.A., Inc., No. Civ. A. 3:02-CV-1294D, 2004 WL 594101, at *9 (N.D. Tex. March 9, 2004) (“An employee’s poor performance is a legitimate, non-discriminatory reason for taking adverse action against her.”). 3. Plaintiff cannot establish Capital One’s legitimate, non-discriminatory reasons were pretext for discrimination or that “but for” Plaintiff’s age, Capital One would not have denied her Team Lead training opportunities or terminated her employment. (a) Purported preferential treatment based on personal friendships and romantic relationships is not evidence of discrimination. Other than her own conclusory allegations, Plaintiff has no evidence that Dzhavadova treated other associates more favorably than her. Moreover, for the reasons discussed above in Sections C.1.b. and C.1.c., none of the associates identified by Plaintiff are proper comparators to her. But even if these associates were proper comparators and Plaintiff had evidence Dzhavadova treated them more favorably than her by providing them with Team Lead training or allowing them additional time to pull files, Plaintiff has no evidence Dzhavadova’s preferential treatment was based on race or age. Specifically, Plaintiff testified Dzhavadova disliked her, but that she was unsure of the reason. App. 75 (Ex. A, at p. 292:2-8). Thus, Plaintiff does not attribute Dzhavadova’s dislike of her to her race or age. Id. Simply disliking someone does not demonstrate discriminatory intent or animus. Similarly, the reverse is also true—Dzhavadova’s alleged preferential treatment of Vogel, Rose, and Leal, due to their alleged close Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 45 of 58 PageID 634 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 38 friendships and personal relationships with her does not constitute discrimination as a matter of law. App. 75, 135 (Ex. A, at pp. 289:9-15 and 531:1-16); see also Harvey, 961 F. Supp. at 1029; see Guzman, No. 1999 WL 34973310 at *7. (b) Plaintiff has no evidence of discriminatory animus. Plaintiff has presented absolutely no evidence of any racial or ageist bias on the part of any manager other than mere speculation and conclusory allegations, which are not competent summary judgment evidence. See Lawrence, 163 F.3d at 313 (“[A] subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief.”); Ray, 63 F.3d at 435 (“[B]ald assertions of . . . discrimination are inadequate to permit a finding that proscribed discrimination motivated [the defendant’s] actions against [the plaintiff].”). In fact, all of Plaintiff’s managers, including Gandara, praised Plaintiff at times during her performance reviews and 10/10 meetings if Plaintiff completed a task or competency satisfactorily. App. 112-113 (Ex. A, at pp. 440:7-441:2), 172-185 (Ex. F-K), 224- 238 (Ex. S) and 427, 429, 432 (Ex. RR at ¶¶11, 15, and 21). Plaintiff even acknowledges Gandara congratulated Plaintiff on obtaining a 100% QA score for March 2014—which is the same time period Plaintiff contends Gandara was allegedly trying to get rid of her because of her race or age. App. 112- 113, 116-117 (Ex. A, at pp. 440:7-441:2, 454:15-21, 457:11-20). Gandara and Craig relied, in part, on the four QA errors discovered by Tingdale in April and May 2014 in deciding to terminate Plaintiff’s employment. App. 342-343 (Ex. DD), 356-374 (Ex. HH), 436 (Ex. RR at ¶31), and 407-408 (Ex. OO at ¶7). Plaintiff does not allege Tingdale discriminated against her based on her race or age. App. 136 (Ex. A, at pp. 534:5-535:9 and 536:2-536:16). Accordingly, Plaintiff has no evidence of discriminatory animus on the part of Tingdale or on the part of Gandara and Craig, who relayed on the errors Tingdale discovered. Additionally, Plaintiff’s managers provided her with ample opportunity to improve her performance through numerous counseling and coaching sessions. App. 224-238 (Ex. S), 275-276 (Ex. W), 344-345 (Ex. EE), and 376-379 (Ex. JJ). If Plaintiff’s managers were trying to get rid of her Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 46 of 58 PageID 635 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 39 because of her race or age, as Plaintiff contends, then they would not have given Plaintiff an opportunity time and time again to correct her unsatisfactory performance and would not have placed so much time and effort into coaching Plaintiff. Simply put, Plaintiff has no evidence Carrillo, Cornejo, Stanaland, or Gandara discriminated against her on the basis of her race or age. (c) Plaintiff’s performance was criticized by every manager she had during her employment with Capital One, especially in the areas of communication and influence. It is undisputed that every manager—Carrillo, Stanaland, Cornejo, and Gandara—Plaintiff had during her employment with Capital One criticized Plaintiff’s performance, especially in the areas of communication and influence. App. 172-185 (Ex. F-K), 224-238 (Ex. S), 275-276 (Ex. W), 344-345 (Ex. EE), 399-400 (Ex. NN at ¶¶5 and 8), 429 (Ex. RR at ¶15), and 415 (Ex. QQ at ¶4). Nevertheless, Plaintiff still contends her managers’ criticism was unwarranted, that her communication and influence skills did not need improvement, and that every manager discriminated against her on the basis of her race and age. Surprisingly, Plaintiff even contends Carrillo—the manager responsible for hiring Plaintiff as a permanent employee—discriminated against her based on her race and age even though he knew she was Black and over the age of forty at the time he hired her. App. 27, 136 (Ex. A, at pp. 105:18-23 and 534:5-535:9). It defies logic that Carrillo would hire Plaintiff knowing she was Black and over the age of forty, to then turn around and discriminate against her based on her race and age. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (a presumption against any discriminatory intent is present when the same person who hires plaintiff is also as the person who allegedly subjected plaintiff to an adverse employment action (i.e., known as the “same actor inference) because “[f]rom the standpoint of the putative discriminator, ‘[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.’”). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 47 of 58 PageID 636 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 40 Similarly, it is equally non-sensical to conclude that every manager Plaintiff had during her employment with Capital One had some sort of discriminatory race or age bias against Plaintiff. The only common denominator regarding Plaintiff’s unsatisfactory performance is Plaintiff. Plaintiff’s deflection of her poor performance onto five different managers is an attempt to sidestep any responsibility for her performance deficiencies and fails to rebut Capital One’s legitimate, non- discriminatory reasons for allegedly denying her Team Lead training and terminating her employment. (d) Plaintiff has no evidence to dispute the reasons for her termination. Plaintiff cannot show Capital One’s reasons for allegedly refusing to provide her Team Lead training and terminating her employment were pretext because she admits to engaging in disrespectful conduct and blatantly ignoring her managers’ directives. Specifically:  Plaintiff admits she failed to join a Quality Circle team in 2012, as suggested by Carrillo on her 2011 performance review. App. 38-39 (Ex. A, at pp. 149:14-150:7).  Plaintiff admits she failed to complete all the COU courses Gandara instructed her to complete. App. 98 (Ex. A, at pp. 383:5-384:9).  Plaintiff admits she made the insubordinate and disrespectful comment to Gandara that Gandara should correct her grammatical errors before she tries to criticize Plaintiff for Plaintiff’s grammatical mistakes. App. 100-101 (Ex. A, at pp. 392:25-393:11) and 430 (Ex. RR at ¶17).  Plaintiff also refused Gandara’s request that she edit her action plan to provide specific, identifiable action steps for improving her performance in response to her PIP. App. 344- 345 (Ex. EE), 375 (Ex. II), 346-353 (Ex. FF), 434-435 (Ex. RR at ¶27), and 415-416 (Ex. QQ at ¶5).  Even after Plaintiff was placed on a PIP, Plaintiff refused to implement any of the techniques and suggestions Gandara made to help Plaintiff’s production and quality standards. App. 224-238 (Ex. S) and 427, 435 (Ex. RR at ¶¶11 and 29). Likewise, Plaintiff undisputedly testified that she has no evidence that the QA errors attributed to her were not committed by her. App. 119, 124 (Ex. A, at pp. 466:21-24 and 488:19-24). While Plaintiff alleges—in conclusory fashion—that other unknown individuals tampered with her tracker and somehow moved images out of the Vault E-mail Box where she worked, she admits she has absolutely Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 48 of 58 PageID 637 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 41 no evidence that this alleged tampering actually occurred.21 App. 122 (Ex. A, at pp. 479:21-480:12); see also Granderson, 2015 WL 746643, at * 15 (plaintiff could not defeat employer’s legitimate, non- discriminatory reasons for his termination by “deflect[ing] any responsibility for his poor performance reviews and instead argue[ing] that they are discriminatory” without presenting any “evidence to disprove the specific errors, omissions, and deficiencies” that defendant documents in its reviews). (e) Plaintiff’s attempt to second-guess Capital One’s business judgment is improper. Plaintiff’s attempts to second-guess Capital One’s business judgment does not create a trial issue on pretext or “but for” causation and cannot defeat summary judgment. See Lattimore v. Wild Flavors, Inc., No. 2009–023 (WOB–JGW), 2012 WL 208078, at *13 (E.D. Ky. Jan. 23, 2012) (“plaintiff’s opinion that the incidents did not warrant the discipline that defendant imposed for them does not raise a triable issue as to pretext.”); see also Arguell-Gilliand v. Brinker Int’l, Inc., No. 05-02-01402-CV, 2003 WL 21185484, at *2 (Tex. App.—Dallas May 21, 2003, no pet.) (plaintiff “has at most shown she disagrees with [defendant]’s decision to terminate her for her behavior [which] is not evidence of pretext.”). Neither Plaintiff nor the Court can challenge the wisdom or “fairness” of Capital One’s decision to terminate Plaintiff, or second-guess Capital One’s exercise of business judgment regarding the adequacy of the reasons for her termination. See Scott v. Univ. of Miss., 148 F.3d 493, 509-510 (5th Cir. 1998) (emphasis added) (“Even if evidence suggests that a decision was wrong, we will not substitute our judgment [for the employer’s]. Such disputes do not support a finding of discrimination and have no place in front of a jury.”); see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made with discriminatory motive.”); Sanstad v. CB Richard Ellis, Inc., No. 399CV2352-P, 2001 WL 611174, at *7 (N.D. Tex. June 4, 2001), aff’d, 309 F.3d 898 (5th Cir. 2002) (“‘Even an incorrect belief that an employee’s performance is inadequate constitutes a legitimate, non- 21 Nonetheless, it would be impossible for someone to tamper with Plaintiff’s tracker or the Vault E-mail Box process that she worked. App. 438 (Ex. RR at ¶36). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 49 of 58 PageID 638 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 42 discriminatory reason. We do not try in court the validity of good faith belief as to an employee’s competence. Motive is the issue.’”), quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). D. As a matter of law, Plaintiff cannot establish a claim for retaliation. Plaintiff bases her retaliation claims under Title VII, the ADEA, and the Texas Labor Code on the following allegations: (1) Dzhavadova denied her Team Lead training and Cornejo made excuses for not providing her with Team Lead training in retaliation for Plaintiff complaining to Associate Relations on January 31, 2013; (2) Cornejo responded harshly to her in a meeting in retaliation for Plaintiff complaining that Cornejo made a mistake when he was a QA Auditor and complaining about not being provided Team Lead training; (3) Cornejo gave her an inconsistent performance review rating on her 2012 performance review in retaliation for Plaintiff complaining to Associate Relations on January 31, 2013; and (4) Gandara and Craig terminated her employment in retaliation for complaining about not being trained to become a Team Lead. App. 131-134, 139 (Ex. A, at pp. 516:17-522:7, 524:4- 525:3, and 546:10-19). 1. Plaintiff cannot establish a prima facie case of retaliation because she has no evidence she either engaged in a protected activity, suffered an actionable adverse employment action, or that the alleged adverse employment action was a “but for” result of her engaging in a protected activity. In order to establish a prima facie case of retaliation under Title VII, the ADEA, and Texas Labor Code, Plaintiff must establish: (1) she engaged in a protected activity under Title VII, the ADEA, and/or the Texas Labor Code; (2) Capital One took an adverse employment action against her; and (3) there is a causal connection between the protected activity and the adverse employment action, i.e., “but for” the protected activity, Capital One would not have taken the adverse action. See Haire, 719 F.3d at 367 (5th Cir. 2013) (Title VII); Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226 (5th Cir. 1996) (ADEA). (a) Plaintiff cannot establish a prima facie case of retaliation for being denied Team Lead training. The denial of training does not constitute an adverse employment action for purposes of a retaliation claim as a matter of law. See Gordon v. Dave & Buster's, Inc., No. SA-04-CV-0507-RF, Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 50 of 58 PageID 639 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 43 2006 WL 3063151, at *4 (W.D. Tex. Oct. 24, 2006) (plaintiff failed to establish a prima facie case for retaliation where he alleged defendant retaliated against him for filing an EEOC charge by denying him training because the denial of training does not constitute an adverse employment action). Moreover, Plaintiff cannot establish a causal connection between being denied Team Lead training and any protected activity because she contends she was denied Team Lead training before she complained to Associate Relations on January 31, 2013. App. 132-133 (Ex. A, at pp. 519:1-15, 520:4- 521:2, and 524:4-23), 202-218 (Ex. N), and 415-416 (Ex. QQ at ¶5). In fact, her complaint to Associate Relations on January 31, 2013, included a claim that she was passed over for the Team Lead position in 2012 and was not provided with the training needed to become a Team Lead. Id. Furthermore, Plaintiff cannot establish that any alleged denial of Team Lead training would not have occurred “but for” complaining to Associate Relations on January 31, 2013, because she was not meeting Capital One’s expectations and standards for her position as a Clerical Associate, and thus, was not qualified to be trained to become a Team Lead—a more advanced position. App. 167-169 (Ex. D), 182-185 (Ex. J-K), 224-256 (Ex. S-T), 275-276 (Ex. W), 313-329 (Z), 344-345 (Ex. EE), 356-374 (Ex. HH), 376-379 (Ex. JJ), 427-437 (Ex. RR at ¶¶11-32), and 415-418 (Ex. QQ at ¶¶4-8). Accordingly, Plaintiff’s retaliation claim based on being denied Team Lead training fails on its face because Plaintiff has no evidence sufficient to create a genuine issue of material fact that she suffered an adverse employment action or that there is any causal connection between being denied training and her January 31, 2013 complaint to Associate Relations. (b) Plaintiff cannot establish a prima facie case of retaliation for Cornejo allegedly responding to her harshly in a meeting. Cornejo was a Quality Assurance Auditor between February 11, 2008 and October 24, 2011. App. 398 (Ex. NN at ¶2). Plaintiff contends that while Cornejo was a QA Auditor, she complained to Carrillo that Cornejo made a mistake in auditing her work and he should be disciplined for it. App. 50- 51, 71, 86-87 (Ex. A, at pp. 197:4-199:7 and 273:5-274:18, 335:11-340:1). Plaintiff, however, has no Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 51 of 58 PageID 640 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 44 evidence that Carrillo told Cornejo about Plaintiff reporting his alleged QA error. App. 87 (Ex. A, at pp. 339:3-340:1). Rather, Plaintiff speculates Carrillo told Cornejo because, years later when Cornejo became a Manager-in-Training in the Vault department, he purportedly told associates during a meeting that “people get mad at you for QA’ing their work” and allegedly looked at Plaintiff when he made the comment. Id. Plaintiff also contends that during a meeting, she asked Cornejo about a missing file and he responded harshly by saying he, Dzhavadova, or Vogel were not going to check for the file just because she claimed it was missing. App. 50-51, 71, 87 (Ex. A, at pp. 197:4-199:7 and 273:5-274:18, 335:11-340:1). Plaintiff contends Cornejo’s harsh response was in retaliation for reporting his QA error a few years earlier to Carrillo and for also complaining about not being provided Team Lead training. Id. However, these facts fail to establish any of the necessary elements of a retaliation claim for several reasons. First, Plaintiff has no evidence that her reporting Cornejo’s alleged error in auditing her work constituted a protected activity under Title VII, the ADEA, or the Texas Labor Code because it had nothing to do with her race or age. Specifically, in order to engage in a statutorily protected activity under Title VII, the ADEA, or the Texas Labor Code, a plaintiff must show that she either: (1) opposed any practice made an unlawful employment practice by Title VII, the ADEA, and/or Texas Labor Code; or (2) she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA or Texas Labor Code.22 Second, Plaintiff cannot establish Cornejo’s alleged harsh response constituted an adverse employment action. See Puleo v. Texana MHMR Ctr., No. 3:13-CV-00393, 2016 WL 3792746, at *9 22 See Thompson v. Somerville County, Tex., No. 11-50016, 2011 WL 2623571, at *2 (5th Cir. July 1, 2011). Complaints made in the absence of some allegation of conduct proscribed by Title VII, the ADEA, or the Texas Labor Code are not statutorily protected activities. See Cavazos v. Springer, No. B-06-058, 2008 WL 2967066, at *7 (S.D. Tex. Aug. 1, 2008) (“[c]omplaints to employers that do not complain of conduct protected by Title VII do not constitute protected activities under the statute.”); see also Wesley v. Scobee Foods, Inc., No. 12-1836, 2013 WL 3324092, at *7 (N.D. Tex. June 28, 2013) (“[I]f the conduct complained of by a plaintiff had nothing to do with race, color, religion, sex, or national origin, he cannot maintain a retaliation claim under Title VII.”); Tratree v. BP North American Pipelines, Inc., 277 F. App’x 390, 395 (5th Cir. 2008) (“Complaining about unfair treatment without specifying why the treatment is unfair, however, is not a protected activity.”). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 52 of 58 PageID 641 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 45 (S.D. Tex. May 9, 2016) (finding plaintiff failed to allege an adverse employment action under Title VII and the ADEA where she claimed her supervisors retaliated against her by speaking to her in a “harsh and degrading manner” during a meeting about a particular incident); Baker v. Holder, No. CIV.A. H- 11-00917, 2013 WL 1194756, at *5 (S.D. Tex. Mar. 22, 2013) (although plaintiff “alleged a litany of discriminatory acts, including unwarranted criticism, offhand comments, negative progress reviews, performance log entries, additional work, inadequate training, and harsh supervision, none of [these allegations] rises to the level of an ultimate adverse employment action.”). Lastly, other than Plaintiff’s pure speculation that Carrillo told Cornejo she complained a couple years earlier that he made a mistake on her work as a QA Auditor, Plaintiff has no evidence linking Cornejo’s alleged harsh response to her complaint. Moreover, Plaintiff cannot establish any type of causal connection between complaining about not being provided Team Lead training and Cornejo’s harsh response during the meeting because the incident occurred before Plaintiff engaged in a statutorily protected activity. App. 202-218 (Ex. N) and 415-416 (Ex. QQ at ¶5). Specifically, Plaintiff did not complain to anyone at Capital One about alleged race or age discrimination until around January 31, 2013 when she complained to Associate Relations and Stanaland a few days earlier. App. 52 (Ex. A, at pp. 203:4-18), 202-218 (Ex. N) and 415-416 (Ex. QQ at ¶5). As part of her January 31, 2013 complaint, Plaintiff claimed Cornejo’s harsh reaction to her in the meeting was inappropriate. App. 202- 218 (Ex. N) and 415-416 (Ex. QQ at ¶5). Thus, the incident occurred before she complained about any alleged race or age discrimination so it is impossible for Plaintiff to establish a causal connection between her complaints to Associate Relations and Cornejo’s alleged harsh response. Id. (c) Plaintiff cannot establish a prima facie case of retaliation for Cornejo giving her an inconsistent rating on her 2012 performance review. A poor performance review does not constitute an adverse employment action as a matter of law. See Thibodeaux-Woody v. Houston Cmty. Coll., 593 F. App’x 280, 286 (5th Cir. 2014) (poor performance review not an adverse employment action for a retaliation claim); Mitchell v. Snow, 326 F. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 53 of 58 PageID 642 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 46 App’x 852, 856 (5th Cir. 2009) (a poor performance review does not constitute an adverse employment action because it would not dissuade a reasonable employee from asserting a complaint for discrimination); Cardenas-Garcia v. Texas Tech Univ., 118 F. App’x 793, 794 (5th Cir. 2004). Moreover, even if Plaintiff’s 2012 performance review constituted an adverse employment action, she still cannot show causation between the rating she received on the review and her January 31, 2013 complaint to Associate Relations because it is undisputed that Cornejo completed and submitted the review before December 20, 2012, which was before Plaintiff initiated her January 31, 2013 complaint with Associate Relations. App. 49 (Ex. A, at pp. 190:3-20), 182-183 (Ex. J), and 400 (Ex. NN at ¶7), and 415-416 (Ex. QQ at ¶¶4-5). Thus, Plaintiff cannot establish a prima facie case of retaliation based on her 2012 performance review. (d) Plaintiff cannot establish a prima facie case of retaliation based on her termination. The decision to terminate Plaintiff’s employment was made by Gandara and Craig, both of whom were unaware of Plaintiff’s January 31, 2013 complaint to Associate Relations and that Plaintiff filed a charge of discrimination with the EEOC on February 22, 2013. App. 436-437 (Ex. RR at ¶32) and 408 (Ex. OO at ¶8). Accordingly, Gandara and Craig could not have discriminated against Plaintiff for filing her Charge or complaining to Associate Relations in January 2013. See Bailey v. Dolgencorp, L.L.C., 445 F. App’x 730, 732 (5th Cir. 2011) (“[I]n order to establish the causation prong of a retaliation claim, the employee should demonstrate that the employer knew about the employer’s protected activity . . . If an employer is unaware of an employee’s protected conduct at the time of the adverse employment action, the employer plainly could not have retaliated against the employee based on that conduct.”); see also Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th 2003). Moreover, the extended period of time between Plaintiff’s January 31, 2013 complaint, or the filing of her Charge on February 22, 2013, and her termination on June 3, 2014—approximately fifteen months later—is too attenuated to establish a causal connection necessary for a retaliation claim. See Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 54 of 58 PageID 643 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 47 Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-274 (2001)(showing three and four months’ time is too attenuated); see also Raggs v. Miss. Power and Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that plaintiff's evidence that adverse employment action occurring five months after protected activity was insufficient by itself to support a prima facie causal link); Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001)(involved a one and 1/2 year gap between the complaint and the adverse action); see also Foster v. Solvay Pharms. Inc., No. 05-20210, 2005 WL 3505052, *4 (5th Cir. Dec. 23, 2005)(holding that a termination which occurred almost a year after the filing of a complaint of discrimination was too remote to support a retaliation claim). Furthermore, even though Plaintiff made generalized complaints of harassment to Gandara and Craig after they placed her on a PIP for not meeting Capital One’s quality standards and expectations, Plaintiff never connected her harassment complaints to any statutorily protected characteristic, such as her race or age. App. 122 (Ex. A, at pp. 479:21-480:12), 344-345 (Ex. EE), 406-407 (Ex. OO at ¶¶4-6), and 432-434 (Ex. RR at ¶¶24-25). As a matter of law, Plaintiff’s generalized complaints fail to establish a statutorily protected activity under Title VII, the ADEA, or Texas Labor Code. See Tratree, 277 F. App’x at 395 (5th Cir. 2008) (“Complaining about unfair treatment without specifying why the treatment is unfair, however, is not a protected activity.”); Stingley v. Den-Mar, Inc., No. 4:08-CV-683- A, 2008 WL 4185828 (N.D. Tex. Sept. 10, 2008) (lengthy note complaining about supervisor’s loud and rude behavior, being spoken to “like a child,” “glared” at, “unacceptable treatment,” “days when it seems I have to take your temperature to know what your mood is,” having to “walk on eggshells,” “aggressive tone,” and having notes snatched from her hand not protected activity where “nothing in the note states or even implies that those behaviors are due to plaintiff’s race, gender, or anything else protected by Title VII”); Sweet v. Dallas Indep. Sch. Dist., No. 3:02-CV-0406-P, 2004 WL 86308, at 11- 12 (N.D. Tex., Jan. 15, 2004) (plaintiff’s complaints that employee had been harassing her was not enough because “she did not specify that it was sexual harassment.”). Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 55 of 58 PageID 644 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 48 Similarly, Plaintiff has no evidence of any causal connection between her termination and her generalized complaints to Gandara and Craig. Specifically, only after Plaintiff was issued the 90-day PIP, did she begin to allege the performance feedback she was receiving constituted harassment. App. 344-345 (Ex. EE), 406-407 (Ex. OO at ¶¶4-6), and 432-434 (Ex. RR at ¶¶24-25). Shortly after being issued the PIP, Plaintiff violated the terms of the PIP by obtaining a 93.33% QA score for May 2014 even though Plaintiff knew her employment with Capital One would be terminated if her QA score was less than 98% for May, June, or July 2014. App. 121 (Ex. A, at p. 473:6-18), 344-345 (Ex. EE), 356- 374 (Ex. HH), 436 (Ex. RR at ¶30). In fact, the accumulation of four high risk alerts/errors within a 90- day period required Plaintiff’s termination under Capital One’s Vault Performance Expectations guidelines. App. 167-169 (Ex. D) and 425 (Ex. RR at ¶7). Accordingly, Plaintiff cannot establish a prima facie case of retaliation based on her termination as a matter of law. 2. Capital One has articulated legitimate, non-retaliatory reasons for any alleged retaliatory action. Capital One fully incorporates herein Section C.2. above, relating to Capital One’s legitimate, non-discriminatory reasons relating to Plaintiff’s age and race discrimination claims because they also serve as Capital One’s legitimate, non-retaliatory reasons relating to Plaintiff’s retaliation claims. 3. Plaintiff cannot defeat Capital One’s legitimate, non-retaliatory reasons for any alleged retaliatory action because she has no evidence sufficient to create a genuine issue of material fact that “but for” her complaints, she would not have been denied Team Lead training, responded to harshly by Cornejo, issued an inconsistent performance review rating for 2012, or terminated. Capital One fully incorporates herein Sections C.2. and C.3. above, relating to all the reasons Plaintiff cannot sufficiently rebut Capital One’s legitimate, non-discriminatory reasons for allegedly denying Plaintiff Team Lead training and terminating her employment. Capital One also fully incorporates herein the arguments set forth above in Section D.1., relating to Plaintiff’s inability to establish the necessary causal connection between her alleged protected activities and being denied Team Lead training, Cornejo’s alleged harsh response to her during a meeting, being issued an inconsistent performance review rating in 2012, or being terminated. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 56 of 58 PageID 645 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 49 Plaintiff has provided absolutely no evidence that Plaintiff’s legitimate, non-retaliatory reasons for the decisions about which she complains are pretextual—and she certainly provides no evidence to establish “but for” causation. Plaintiff’s subjective belief that Capital One retaliated against her is not enough to establish “but for” causation to defeat Capital One’s legitimate, non-retaliatory reasons as a matter of law. See Mire v. Tex. Plumbing Supply Co., Inc., 286 F. App’x 138, 144 (5th Cir. 2008) (defendant entitled to summary judgment on plaintiff’s retaliation claim because plaintiff’s “bare assertions that she did not perform poorly is insufficient to raise a fact issue as to the legitimacy of [defendant]’s proffered reasons” that plaintiff’s performance was inadequate and that she was dishonest and combative); Martin v. Kroger Co., 65 F. Supp. 2d 516, 560 (S.D. Tex. 1999), aff'd, 224 F.3d 765 (5th Cir. 2000) (finding that employee's testimony that employer's proffered reason was not true was insufficient to raise fact issue); (African American plaintiff, who was terminated within three months of engaging in protected activity, failed to demonstrate that employer’s proffered reasons for termination, her poor performance and negative attitude, were merely a pretext for retaliation in light of her numerous documented deficiencies, it could not be said that “but for” her complaints of employment discrimination, employee would have remained employed). Consequently, Plaintiff cannot establish a retaliation claim, entitling Capital One to summary judgment on her retaliation claims under Title VII, the ADEA, and the Texas Labor Code as a matter of law. V. CONCLUSION AND REQUESTED RELIEF For all the foregoing reasons, Capital One asks the Court to grant final summary judgment and render a final judgment in this case dismissing Plaintiff’s claims with prejudice and awarding Capital One its costs and fees incurred in defending this lawsuit, or alternatively, all costs and fees incurred in the preparation and filing of this Brief in Support of Defendant’s Motion for Summary Judgment. Capital One further requests all other relief, in law or equity, to which it may be entitled. Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 57 of 58 PageID 646 _______________________________________________________________________________________________________________________ Brief in Support of Defendant’s Motion for Summary Judgment Page 50 Respectfully submitted, s/ Amanda A. Williams ANGELA CLANTON GREEN Texas Bar No. 24040695 Angela.Green@ogletreedeakins.com AMANDA A. WILLIAMS Texas Bar No. 24065281 Amanda.Williams@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, Texas 75225 Telephone: (214) 987-3800 Facsimile: (214) 987-3927 ATTORNEYS FOR DEFENDANT CAPITAL CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing document was filed electronically on October 7, 2016. Parties may access this filing through the Court’s system. Notice of this filing will be sent by operation of the Court’s electronic filing system to Plaintiff. s/Amanda A. Williams AMANDA A. WILLIAMS 26161340.5 Case 3:14-cv-03282-D Document 54 Filed 10/07/16 Page 58 of 58 PageID 647