Brandon v. Sage Corp.

• Decision Date: 19 November 2014
• Docket Number: Cv. No. 5:12–CV–1118–DAE.
• Citation: 61 F.Supp.3d 632
• Court: U.S. District Court — Western District of Texas
• Parties: Margie BRANDON, individually, Plaintiff, v. The SAGE CORPORATION, Defendant.

61 F.Supp.3d 632

Margie BRANDON, individually, Plaintiff

v.The SAGE CORPORATION, Defendant.

Cv. No. 5:12–CV–1118–DAE.

United States District Court, W.D. Texas, San Antonio Division.

Signed Nov. 19, 2014.

Glenn Deutsch Levy, Law Office of Glenn D. Levy, San Antonio, TX, for Plaintiff.

John T. Hawkins, Naman, Howell, Smith & Lee, P.C., Waco, TX, Larry D. Warren, Naman Howell Smith & Lee, PLLC, San Antonio, TX, for Defendant.

ORDER (1) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE AS MOOT

DAVID ALAN EZRA, Senior District Judge.

Before the Court is a Motion for Summary Judgment filed by Defendant The Sage Corporation (“Sage” or “Defendant”). (“Mot.,” Dkt. # 21.) The Court held a hearing on Defendant's Motion on November 6, 2014. At the hearing, Glenn D. Levy, Esq., represented Plaintiff Margie Brandon (“Brandon” or “Plaintiff”); John T. Hawkins, Esq., represented Defendant. Upon careful consideration of the arguments asserted in the supporting and opposing memoranda, as well as the arguments presented at the hearing, the Court GRANTS Defendant's Motion. In conjunction with this ruling, the Court also GRANTS IN PART AND DENIES IN PART Defendant's Motion to Strike (Dkt. # 27).

BACKGROUND

Defendant owns and operates truck driving schools, including a school in San Antonio. (Mot., Ex. 1 ¶ 2.) In May 2010, Brandon, who is Hispanic,¹ began working as a School Director at Defendant's San Antonio location. (“Resp.,” Dkt. # 26, “Brandon Decl.,” Ex. 3 ¶ 1; “Compl.,” Dkt. # 1 ¶ 8.) In March 2011, Carmela Campanian (“Campanian”), a National Project Director for Sage, arrived at the San Antonio campus to conduct specialized training. (Brandon Decl. ¶ 2; Mot., Ex. 3 ¶ 2.)

On Campanian's first day at the San Antonio school, Brandon alleges that Campanian saw a Sage instructor, Loretta Eure (“Eure”), with a student and asked Brandon, “What is that and who hired that?” (Id. ¶ 3.) Brandon alleges that Campanian then said, “Please don't tell me that is a Sage instructor” and informed Brandon that Sage did not hire “cross genders.” (Id. ) After Brandon told Campanian that she hired Eure because Eure was qualified and filled the school's need for a bilingual instructor, Brandon alleges that Campanian told her, “We will deal with you seriously for hiring that.” (Id. ) Brandon further alleges that Campanian indicated she would discuss the matter with Sage's President, Gregg Aversa (“Aversa”) and go over appropriate punishment for Brandon. (Id. )

Brandon alleges that the next day, Campanian asked Brandon “why [she] had not approached the Migrant Workers Training Program” because the program paid 100% of tuition and 85% of her student body came from that program. (Id. ¶ 4.) When Brandon replied that San Antonio's population did not consist of migrant workers, Campanian allegedly replied, “Hello! There are Mexicans here and that's what Mexicans do. They work as migrant workers. You give them room and board, pay them $500 per month and they are happy.” (Id. ) Brandon alleges that while her administrative assistant, Maria Solis (“Solis”), was explaining San Antonio's demography to Campanian, Campanian interrupted, stating “Well I am seeing things here .... there is no education.” (Id. )

Shortly thereafter, Brandon alleges that Campanian called a meeting with Brandon and Solis, during which she informed Brandon that her pay would be cut in half as punishment for hiring Eure. (Id. ¶ 5.) Later that afternoon, when Brandon called Campanian's attention to her failure to place Eure on the schedule, Campanian allegedly asked Brandon if she “understood the severity of the impending consequences for hir[ing] a cross gender.” (Id. ) At the end of the day, Brandon resigned from her position. (Id. ¶ 7.)

On November 29, 2012, Brandon filed a complaint in this Court, naming Sage as the sole defendant. She asserts claims of racial discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981 ; wrongful termination and retaliation under Title VII and § 1981 ; and negligent hiring, supervision, training, and retention. (Compl. ¶¶ 14–23.) Brandon seeks past and future wages and benefits, noneconomic damages, punitive damages, and attorney's fees. (Id. at 6–7.)

On July 31, 2014, Defendant filed the instant Motion for Summary Judgment. (Dkt. # 21.) Plaintiff filed her Response to the Motion for Summary Judgment on September 22, 2014. (Dkt. # 26.) On September 29, 2014, Defendant filed a Motion to Strike various portions of Eure's declaration, which was submitted in support of Plaintiff's Response. (Dkt. # 27.) On the same day, Defendant submitted its Reply to Plaintiff's Response to the Motion for Summary Judgment. (Dkt. # 28.)

LEGAL STANDARD

A movant is entitled to summary judgment upon showing that “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a) ; see also Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir.2014). A dispute is only genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the nonmoving party must come forward with specific facts that establish the existence of a genuine issue for trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir.2013) (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir.2000) ). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir.2012) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

In deciding whether a fact issue has been created, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Kevin M. Ehringer Enters. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir.2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). However, “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir.2012) (quoting Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir.2003) ).

DISCUSSION

I. Defendant's Motion to Strike

Defendant objects to various portions of Eure's declaration, submitted in support of Plaintiff's Response, on the basis that particular statements (a) constitute inadmissible hearsay and (b) contain speculation and conclusory statements. (Dkt. # 27 at 2–4.) Defendant also argues that the entire affidavit should be stricken as a sham affidavit because it conflicts with Eure's deposition testimony. (Id. at 4–5.)

A. Sham Affidavit

“It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996) (citing Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 137 n. 23 (5th Cir.1992) ). This circuit recognizes the “sham-affidavit rule,” which prohibits a non-moving party from “manufactur[ing] a genuine issue of material fact by submitting an affidavit that impeaches prior testimony without explanation.” Guerrero v. Total Renal Care, Inc., 932 F.Supp.2d 769, 776 (W.D.Tex.2013). The “sham-affidavit rule ‘is applied sparingly’ and may be invoked only where there is ‘some inherent inconsistency between an affidavit and a deposition.’ ” Axxiom Mfg., Inc. v. McCoy Invs., Inc., 846 F.Supp.2d 732, 749–50 (S.D.Tex.2012).

Defendant argues that Eure's declaration attests to the fact that Defendant discriminated against her or had a position against transgender employees, but that Eure testified that the only incidents supporting Defendant's bias was the incident in which Campanian would not allow Eure to use a truck and Campanian's comments that Eure was insubordinate. (Dkt. # 27 at 4–5.) Defendant argues that the deposition testimony directly conflicts with the declaration and, accordingly, the Court should strike Eure's declaration in its entirety. (Id. at 5.)

The fact that Defendant does not agree with Eure that these incidents amount to a showing of gender discrimination or a policy against transgender employees does not render the statements inconsistent. The court finds no direct conflict between the affidavit and deposition testimony indicating bad faith, and therefore DENIES Defendant's Motion to Strike Eure's declaration in its entirety on the basis that the declaration constitutes a sham affidavit.

B. Hearsay and Conclusory Statements

Under Federal Rule of Evidence 56(c)(4), a “declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that that the ... declarant is competent to testify on the matters stated.”² Any statements in a declaration that violate this rule are not considered for summary judgment purposes; any portions of the declarations that are not struck remain part of the summary judgment record. See Mayfield v. Tex. Dep't of Criminal Justice, 529 F.3d 599, 607 (5th Cir.2008) (citing Akin v. Q–L Invs., Inc., 959 F.2d 521, 531 (5th Cir.1992) ); Williamson v. U.S. Dep't of Agric., 815 F.2d 368, 383 (5th Cir.1987).

1. Conclusory Statements

Defendant argues that the following statements in Eure's declaration are conclusory or speculative: (1) “I believe it was Mr. Noel's way of letting me know that my gender was an...