Graham v. Jpmorgan Case Bank

• Decision Date: 17 July 2015
• Docket Number: CIVIL ACTION NO. 4:13-CV-1410
• Parties: LA TOYA GRAHAM, Plaintiff, v. JPMORGAN CASE BANK, NATIONAL ASSOCIATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

LA TOYA GRAHAM, Plaintiff, v. JPMORGAN CASE BANK, NATIONAL ASSOCIATION, Defendant.

CIVIL ACTION NO. 4:13-CV-1410

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

July 17, 2015

OPINION AND ORDER

The above referenced cause was removed from state court based on federal question jurisdiction and consolidated with a nearly identical case, H-13-1412, also removed on federal question grounds, which together allege disparate-treatment race discrimination, harassment, hostile work environment, and retaliation in employment in violation of Title VII of the Civil Right Act of 1964, of 42 U.S.C. § 2005(e), et al., of Title 42 U.S.C. § 1981, and of the Texas Commission on Human Rights Act ("TCHR"), § 21.051 of the Texas Labor Code, along with Texas state common-law claims for invasion of privacy and intentional infliction of emotional distress. Pending before the Court is Defendant JPMorgan Chase Bank, National Association's ("Chase's") motion for summary judgment (instrument #24).

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which the nonmovant bears the burden of proof at trial; a "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5^th Cir. 1998).

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5^th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc,, 144 F.3d 377, 380 (5^th Cir. 1998).

Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5^th Cir. 1996). "'[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5^th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). "Nor is the 'mere scintilla of evidence' sufficient; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit "'significant probative evidence.'" Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5^th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5^th Cir. 1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5^th Cir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5^th Cir. 1996)("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5^th Cir. 1995)(for the party opposing the motion for summary judgment, "only evidence--not argument, not facts in the complaint--will satisfy' the burden."), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5^th Cir. 1991). The nonmovant must "go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5^th Cir. 2001), citing Celotex, 477 U.S. at 324.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.

Substantive Law

I. Title VII

A. Disparate Treatment

Under section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1) and (2), it is "an unlawful employment action for an employer . . . (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin."

Under the statute, suit may be brought under two distinct theories of discrimination, disparate treatment and disparate impact. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Pacheco v. Mineta,448 F.3d 783, 787 (5^th Cir. 2006), cert. denied, 549 U.S. 888 (2006). Title VII expressly prohibits both (1) intentional discrimination based on race, color, religion, sex or national origin, known as "disparate treatment," as well as (2) an employer's facially neutral practices that are discriminatory in operation against protected groups (race, color, religion, sex or national origin) and not required by the nature of the job, known as "disparate impact". 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(k)(1)(A); Ricci v. DeStefano, 129 S. Ct. 2658, 2672-73 (2009); Pacheco, 448 F.3d at 787. The instant suit is one for disparate treatment, which requires proof of discriminatory motive. Pacheco, 448 F.3d at 787.

1. Exhaustion of Remedies

Plaintiffs claiming employment discrimination must exhaust administrative remedies by filing a timely charge with the EEOC and receiving a right-to-sue notice. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5^th Cir. 2002). Failure to exhaust administrative remedies "is not a procedural 'gotcha' issue," but "a mainstay of proper enforcement of Title VII remedies." McClain v. Lufkin Industries, Inc., 519 F.3d 364, 272 (5^th Cir. 2008), cert. denied, 129 S. Ct. 198 (2008). A private plaintiff must exhaust her administrative remedies before seeking relief by filing an administrative charge with the EEOC. 42 U.S.C. § 2000e-(5)(b); id.

The filing of an administrative complaint about a claim under Title VII is a jurisdictional prerequisite. Tolbert v. U.S., 916 F.2d 245, 247 (5^th Cir. 1990)(Exhaustion of administrative remedies in a Title VII suit is a prerequisite to federal subject matter Jurisdiction); Barnes v. Levitt, 118 F.3d 404, 408 (5^th Cir. 1997), cert. denied, 523 U.S. 1136 (1998); McCray v. DIP Indus., Inc., 942 F. Supp. 288, 294 (E.D. Tex. 1996)(The court's review is restricted to "'those grounds of a Title VII complaint that were raised in the administrative process.'"), quoting Anderson v. Lewis Rail Serv. Co., 868 F.2d 774, 775 (5^th Cir. 1989).¹

Under Title VII, 42 U.S.C. § 2000e-5(e)(1), a charge of discrimination must be filed with the EEOC within 180 days after the occurrence of the alleged discriminatory practice unless the complainant has instituted proceedings with a state or local agency with the authority to grant of seek relief from unlawful employment practices, under which circumstances the period for filing such a charge with the EEOC is extended to 300 days. Griffin v. City of Dallas, 26 F.3d 610, 612 (5^th Cir. 1994). In Texas, the qualifying state agency originally was the Texas Commission on Human Rights ("TCHR"). Effective March 1, 2004, the Texas Workforce Commission, Civil Rights Division, assumed the powers and duties of the TCHR. Little v. Texas Dept. of Crim. Justice, 148 S.W. 3d 374, 377-78 (Tex. 2004).

Plaintiff here did file a timely charge of race discrimination with the Equal Employment Opportunity Commission (#24-9, Ex. H) on October 14, 2012, but did not allege retaliation in it. She received her right-to-sue letter, dated February 14, 2013, and filed both state-court suits, asserting the various claims listed in the first paragraph of this Opinion and Order, on April 3, 2013.

2. Shifting Burden of Proof

A plaintiff may establish a claim of discrimination under Title VII by presenting direct evidence or by using the indirect method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "Direct evidence proves intentional discrimination without inference or presumption when believed by the trier...