Earnestine Hill v. Windows

• Decision Date: 17 July 2009
• Docket Number: Civil Action No. H-07-3857.
• Citation: 716 F.Supp.2d 582
• Parties: Earnestine HILL, Plaintiff, v. NEW ALENCO WINDOWS, LTD., Defendant.
• Court: U.S. District Court — Southern District of Texas

716 F.Supp.2d 582

Earnestine HILL, Plaintiff,

v.NEW ALENCO WINDOWS, LTD., Defendant.

Civil Action No. H-07-3857.

United States District Court,S.D. Texas,Houston Division.

July 17, 2009.

COPYRIGHT MATERIAL OMITTED.

Margaret H. Meece, Meece & Associates, Bryan, TX, for Plaintiff.

Brian Newton Woolley, Lathrop & Gage LC, Kansas City, MO, John Logan Engvall, Jr., Engvall Hlavinka LLP, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 35.) For the following reasons, Defendant's Motion must be denied in part and granted in part.

I. BACKGROUNDA. Factual Background

Plaintiff Earnestine Hill is an African-American woman who was 55 years old at the time of the incidents giving rise to this lawsuit. (Pl. Dep. 80:11-15, Oct. 20, 2008.) In 1971, Plaintiff began working for Defendant New Alenco Windows, Ltd. (“Alenco”), a window manufacturer, at its facility in Bryan, Texas. Approximately 950 employees work at the Bryan manufacturing facility. In 2006, about 10 percent of the Bryan facility employees were African-American and about 10 percent were older than Plaintiff. (Josh DeAtley Decl. ¶ 9, Nov. 17, 2008, Doc. No. 26, Ex. A.) Beginning in the 1980s, Plaintiff also worked 14 hours per week for Brazos Cleaning Service, a company that provides cleaning services for a bank. She still works there. (Pl. Dep. 20:4-25.) Plaintiff was terminated from Alenco in May 2006 for an alleged work rule violation.

During the last four years of her employment at Alenco, Plaintiff was employed in the material control/production department (“Department”). The Department had four Hispanic employees and one black employee, Plaintiff. In the Department, Plaintiff worked with a machine that ran weather stripping through material for various parts of the windows that Alenco manufactures. (Pl. Dep. 9:11-23.) As of May 2006, the Department's supervisor was Jef Foust. (Josh DeAtley Decl. ¶ 8; Jef Foust Decl. ¶ 1, Nov. 17, 2008, Doc. No. 26, Ex. H.)

Beginning in late 2005 or early 2006, Jose Mendez ¹ , a 19-year old Hispanic man, became the Department's “Leadperson.” ² (Pl. Dep. 37:21-38:19.) Plaintiff describes Mendez as her “semi-supervisor” or crew leader. (Pl. Dep. 115:9-116:1.) Plaintiff avers that she was required to take instruction from him and to report to him. (Pl. Dep. 116:1-5.) Josh DeAtley, director of human resources for Alenco, testifies via declaration that a Leadperson acts on the instructions of management and relays those instructions to workers in the Department. (DeAtley Decl. ¶ 7.) DeAtley further testifies that a Leadperson is not a supervisor or a member of management and has no ability to hire, to fire, or to discipline employees. ( Id.)

In March 2006, Mendez began harassing Plaintiff. (Pl. Dep. 37:21-38:19.) Mendez told Plaintiff that she was too old to be working and that he wanted to replace her with his romantic interest, Jane Doe, another Alenco employee. ³ ( Id. at 38:20-39:14;; 40:17-25; 43:17-44:5; 79:19-80:10.) Starting in March 2006, Mendez would come in “when he was in one of those moods” and harass Plaintiff about firing her; Plaintiff alternatively contends that he harassed her every day. ( Id. at 39:15-25; 40:17-25.) At one point, Mendez told Plaintiff that she was always “running and tattling” after she spoke with Foust. ( Id. at 124:13-25.) At Alenco, no one other than Mendez said anything to Plaintiff about her race or age. ( Id. at 101:22-102:6.) Plaintiff did not discuss Mendez's comments about her being too old to work with Foust or DeAtley. ( Id. at 48:20-25; DeAtley Decl. ¶ 19; Foust Decl. ¶ 2.) Plaintiff also did not inform Angela Alston, a human resources coordinator at Alenco, that Mendez told Plaintiff that she was too old to be working. (Pl. Dep. 53:10-12; Alston Decl. ¶ 2.)

Plaintiff informed Foust that Mendez had threatened to make sure she was fired and “replaced with another Hispanic” (presumably Doe). (Pl. Dep. 124:3-15.) Plaintiff also told Ron, the paint line supervisor, that Mendez said he would fire her and replace her. ( Id. at 124:3-15.) In general, Plaintiff testifies that Mendez was not joking that he wanted to replace her. ( Id. at 46:16-22.)

Three times, Mendez did not approve overtime for Plaintiff. (Pl. Dep. 116:6-117:6.) The first time, several months before Plaintiff was terminated, Lourdes Osorio ⁴ , who worked in the Department, was allowed to work overtime when Plaintiff was sent home. ( Id. at 42:19-5; 116:18-21.) Twice, six months before Plaintiff was terminated, Mendez brought Doe into the Department, and Plaintiff was sent home after the end of an eight-hour shift. ( Id. at 41:1-42:5.) After the second incident with Doe, Plaintiff complained to Foust that she was sent home when Doe was allowed to remain. ( Id. at 48:4-19.) After Plaintiff complained to Foust, the overtime problems ended. ( Id. at 48:17-19.)

Mendez allegedly made comments to Plaintiff about her husband, stating that he had heard that Plaintiff's husband left her because he caught Plaintiff in bed with many other men simultaneously. ( Id. at 49:15-50:7; 52:18-53:2.) Plaintiff spoke with Foust about these comments, and Mendez stopped making them. ( Id. at 49:25-50:15.)

Plaintiff informed Alston that Mendez was making false allegations against her. (Pl. Dep. 13:5-11.) Plaintiff contended that she would be called to the office to address Mendez's lies. ( Id. at 13:14-18.) For example, Mendez falsely told Alston that Plaintiff took a broom from the Department. ( Id. at 50:21-51:10.) Plaintiff explained to Alston that Plaintiff did not know what was going on with the broom. ( Id. at 51:11-51:23.) Mendez also falsely told Alston that Plaintiff threatened to have her ex-husband come to Alenco and “jump on” Mendez in response to Mendez's comments about her ex-husband. ( Id. at 52:18-25.) In general, Alston did not investigate Plaintiff's complaints about Mendez and accepted Mendez at his word. ( Id. at 13:5-20; 14:22-15:10; 16:20-17:3; 51:17-23.) Plaintiff told Alston that “I'm really tired of it, because I feel like I'm black and he's Spanish and y'all keep calling me in this office behind these lies and I'm-you know, I'm not doing anything but doing my job.” ( Id. at 13:14-18.) Plaintiff did not speak with Alston about Mendez's plan to have Doe transferred. ( Id. at 53:6-9.)

1. Purported Incident Leading to Plaintiff's Termination

According to Plaintiff, on Friday May 26, 2006, around five o'clock in the morning, Mendez came to Plaintiff's station and took her clipboard out of her workbag. ( Id. at 54:13-23.) Mendez threw the clipboard on his desk. ( Id. at 58:10-19.) Plaintiff used this clipboard to order her supplies every morning for her work with weather stripping. ( Id. at 57:19-58:4.) Foust had told Plaintiff to keep it with her so that Mendez did not get a hold of it. ( Id. at 58:5-8.)

Plaintiff warned Mendez that he had no reason to touch her clipboard and that Foust would “take care of it when he comes”; nothing more was said. (Pl. Dep. 54:24-55:4; 59:11-21.) After this interaction, Mendez came up to Plaintiff and said that he was going to get her fired that day. ( Id. at 59:24-60:6.) At seven o'clock that morning, Plaintiff was told to come to the office. ( Id. at 55:5-8.) Foust and James Dean, a production manager, met her in the office and told her that they were suspending her for three days.

( Id. at 55:12-15.) She was told that she had “attacked” a man. ( Id. at 55:16-24.) Plaintiff contends that she did not push Mendez that morning. ( Id. at 55:24-25; 67:1-5.) Plaintiff argues that, at the time of the May incident, she was in no shape to attack a 19-year-old man because she was partially disabled by a bad knee. Plaintiff tore ligaments in her knee when she fell at home about four or five months before her termination. ( Id. at 119:17-120:11.) She was scheduled for surgery for in June 2006. Virgil Marko, apparently a payroll worker, testifies via declaration that Plaintiff had knee pain and that she limped prior to the May 26th incident. (Virgil L. Marko Decl. ¶¶ 2-3, June 17, 2009.) Karan Marko ⁵ also testifies via declaration that Plaintiff's knee was swelling prior to her surgery. (Karan M. Marko Decl. ¶¶ 2-3, June 17, 2009.) Plaintiff had knee surgery June 6, 2006. (Pl. Dep. 23:25-24:2.) Plaintiff does not know if any employee has ever shoved a Leadperson or a co-worker into a piece of equipment. ( Id. at 67:6-8.) When Plaintiff returned to work the following Tuesday, DeAtley told her that Alenco was terminating her because she attacked a man. ( Id. at 56:6-10.) According to Plaintiff, DeAtley told her that she had picked up the man, swung him around, and caused him bodily injuries. (Pl. Dep. 56:13-57:1.)

Mendez's story, as relayed by DeAtley and Foust, is much different. Mendez told Foust that he picked up a clipboard lying on the floor that apparently belonged to Plaintiff; Plaintiff then pushed Mendez from behind into a table. (DeAtley Decl. ¶ 11; Foust Decl. ¶ 3.) Foust does not testify about the force of Plaintiff's purported push. (Foust Decl. ¶ 3.) That day, DeAtley, after he heard from Foust than an incident had occurred, and interviewed Mendez, along with Lourdes Osorio, and Jose Sanchez, two other workers in the area at the time. Alston was present at the interviews. (DeAtley Decl. ¶¶ 13-14.) Mendez repeated to DeAtley the report he made to Foust. (DeAtley Decl. ¶ 13.) Mendez's unsworn, handwritten statement, prepared for the internal investigation and attached to DeAtley's declaration does not mention a table or that he was shoved by Plaintiff. (Mendez Statement, May 26, 2006, Doc. No. 26.) Instead, Mendez writes that Plaintiff started to strangle him from behind. ( Id.) DeAtley took a photograph of Mendez's injury. ( Id. at ¶ 14; Doc. No. 26, Ex. C.) Osorio heard a commotion and then turned to see Mendez picking up his safety glasses and looking at...