Eure v. Sage Corp.

• Decision Date: 19 November 2014
• Docket Number: CV. No. 5:12–CV–1119–DAE.
• Parties: Loretta EURE, individually, Plaintiff, v. The SAGE CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Texas

61 F.Supp.3d 651

Loretta EURE, individually, Plaintiff

v.The SAGE CORPORATION, Defendant.

CV. No. 5:12–CV–1119–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, 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

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 Loretta Eure (“Eure” 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 for Summary Judgment. 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 December 2010, Eure, who was assigned female at birth and presents as male, began working as a truck-driving instructor at Defendant's San Antonio location. (“Resp.,” Dkt. # 26, “Eure Decl.,” Ex. 1 ¶ 2.) During her¹ tenure, Eure reported to San Antonio School Director Margie Brandon (“Brandon”), Western Regional Director Barbara Blake (“Blake”), and President Gregg Aversa (“Aversa”) as her supervisors. (Mot., Ex. 1 ¶ 3.)

At the beginning of her employment with Defendant, Eure attests that she received insufficient training because her trainer, Noel Smith (“Smith”) only permitted her to shadow him for twenty-four hours. (Eure Decl. ¶ 3.) Eure also attests that Smith subjected her to “sarcasm and innuendos,” in which Smith complained about having to instruct Eure and expressed his desire to work in Brandon's supervisory role. (“Eure Dep.,” Mot., Ex. 4 at 43:1–6.) Eure reported these comments to her supervisor, Brandon. (Id. at 41:10–11, 20–22.)

In March 2011, Carmela Campanian (“Campanian”), a National Project Director for Sage, arrived at the San Antonio campus to conduct specialized training. (Mot., Ex. 3 ¶ 2.) Brandon alleges that, early that day, Campanian saw 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 discuss appropriate punishment for Brandon. (Id. )

On that day or the following day, Brandon alleges that she reviewed the instructor schedule that Campanian had reworked. (Id. ¶ 6.) Brandon alleges that when she told Campanian that Eure had been omitted from the schedule, Campanian indicated that the omission was purposeful and asked Brandon if she understood the severity of the consequences for hiring a transgender instructor. (Id. )

That same day, Campanian informed Eure that Eure could not use a particular truck with her student and Eure proceeded with the student's lesson in a different truck. (Eure Dep. 49:10–21.) After Eure returned from the lesson, Brandon's assistant, Maria Solis (“Solis”), informed Eure that Campanian had called her to the office. (Id. at 50:22–24.)

When Eure met with Campanian, Eure alleges that Campanian said “I've never had to deal with something like this.” (Id. at 51:12–13.) In response, Eure asked, “What do you mean? Because I'm gay?” (Id. at 51:13–14.) Eure alleges that Campanian paused and then said that Eure was insubordinate. (Id. at 51:14–15.) Eure alleges that Campanian then received a phone call and dismissed Eure from her office. (Id. at 51:23–52:4.) Eure immediately reported this incident to Brandon. (Id. at 52:20–23.) Later that evening, Eure called Brandon again to discuss the incident. (Id. at 53:22–54:3.) At the same time, she attempted to report the incident to Aversa, but she obtained Aversa's contact information through a search engine and mistakenly emailed the incorrect Aversa. (Id. at 54:4–10.) When the incorrect recipient informed her of the mistake, she redirected the complaint to Aversa on March 31, 2011. (Id.; id. at 56:17–20.)

Because Aversa was out of town, Blake responded to the complaint on behalf of Aversa on April 1, 2011. (Id. at 59:8–16; Mot., Ex. 2, Ex. E at 2.) Blake asked that Eure call Sage's Vice President and General Counsel Chris Thropp sometime that day to discuss the matter over the phone. (Mot., Ex. 2, Ex. E at 2.)

On April 4, 2011, Eure submitted a charge of discrimination with the EEOC, which alleged discrimination based on sex against Defendant. (Eure Dep. 67:8–23.) That same day, Aversa returned from his trip and spoke with Eure. (Mot., Ex. 1 ¶ 4; Eure Dep. 59:20.) Aversa asked Eure to consider returning to work and assured Eure that he planned to investigate the incident further. (Eure Dep. 60:2–18.) On April 5, 2011, Aversa replied to Eure's email, expressing his apologies for the events that unfolded, his intention to address the matter with Campanian, and his support for Eure's return to work. (Mot., Ex. 1, Ex. H.) He also stated that “[t]he reports from [Brandon] on your teaching skills and your overall performance were very positive and encouraging to Barb Blake and to me.” (Id. ) On April 6, 2011, Eure replied that she would need additional information about the hours that she would be able to work and whether Brandon and Solis would be returning before she agreed to return to work. (Mot., Ex. 1, Ex. I.) Eure never returned to work. (Eure Dep. 64:17–19.)

On November 29, 2012, Eure filed a complaint in this Court, naming Sage as the sole defendant. She asserts claims of gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, and the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.051 ; wrongful termination and retaliation under Title VII and § 1981 ; and negligent hiring, supervision, training, and retention. (“Compl.,” Dkt. # 1 ¶¶ 14–23.) Eure seeks past and future wages and benefits, noneconomic damages, punitive damages, and attorney's fees. (Id. at 5–6.)

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,...