Grogan v. Savings of America, Inc.

• Decision Date: 07 April 1999
• Docket Number: No. CIV.A. H-98-569.,CIV.A. H-98-569.
• Citation: 118 F.Supp.2d 741
• Parties: Connie GROGAN, Plaintiff v. SAVINGS OF AMERICA, INC., a subsidiary of Home Savings of America FSB, Defendant
• Court: U.S. District Court — Southern District of Texas

118 F.Supp.2d 741

Connie GROGAN, Plaintiff v. SAVINGS OF AMERICA, INC., a subsidiary of Home Savings of America FSB, Defendant

No. CIV.A. H-98-569.

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

April 7, 1999.

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Daniel David Kistler, Houston, TX, for Connie Grogan, plaintiff.

Teresa S Valderrama, Baker & Botts, Houston, TX, for Savings of America Inc, a subsidiary of Home Savings of America FSB, defendant.

MEMORANDUM AND ORDER

HARMON, District Judge.

Pending before the Court in the above referenced action, removed from state court on diversity grounds and alleging age discrimination and harassment in employment, in violation of Section 21.051 of the Texas Labor Code, defamation/slander, and intentional infliction of emotional distress, is Defendant Home Savings of America, Inc.'s¹ motion for summary judgment (instrument # 22).

The movant seeking a federal summary judgment initially must inform the court of the basis for its motion and point out those portions of the pleadings, depositions, answers to interrogatories, and admissions on file that demonstrate the absence of a genuine issue of material fact and show that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the opposing party's claims nor produce evidence showing an absence of a genuine factual issue, but may rely on the absence of evidence to support essential elements of opposing party's claims. International Assoc. of Machinists & Aerospace Workers, Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 222 (5th Cir.1987). The burden then shifts to the non-movant to set forth specific facts and competent summary judgment evidence to raise a genuine issue of material fact on each essential element of any claim on which she bears the burden of proof at trial. Fed.R.Civ.P. 56(c). The substantive law governing the suit identifies the essential elements of the claims at issue and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party may not rest on mere allegations or denials in her pleadings but must produce affirmative evidence and specific facts. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. She meets this burden only if she shows that "a reasonable jury could return a verdict for the non-moving party." Id. at 254, 106 S.Ct. 2505. A mere scintilla of evidence will not preclude granting of a motion for summary judgment. Id. at 252, 106 S.Ct. 2505.

All reasonable inferences must be drawn in favor of the non-moving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), citing United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Once the burden of proof has shifted to the non-movant, she "must do more that simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct. 1348. Instead she must produce evidence upon which a jury could reasonably base a verdict in her favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id., 477 U.S. at 249-50, 106 S.Ct. 2505. Unsubstantiated and subjective beliefs and opinions are not competent summary judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The non-movant cannot discharge her burden by offering vague allegations and legal conclusions. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

Defendant's motion for summary judgment insists that the material facts here are undisputed. In the process of moving to a new sales culture in 1996 because of the need as a savings institution to compete with banks that are now selling competitive financial products and trying to generate business,² after providing extensive sales training to the employees, Defendant explains that it discharged Plaintiff Connie Grogan, a long-time branch manager, because she refused to embrace the new culture as demonstrated by repeated deficiencies in significant aspects of her job. Defendant maintains that employees may be required to meet changed standards. Blackwell v. Cole Taylor Bank, 152 F.3d 666, 671-72 (7th Cir.1998) (no age discrimination occurred where a bank required its branch managers to become sales managers with specified sales goals); Davis v. First Nat'l Bank of Killeen, 976 F.2d 944, 949 (5th Cir.1992) (no age discrimination where bank was purchased and underwent "drastic policy and philosophy changes"). Furthermore, Defendant charges, Plaintiff Connie Grogan has provided no evidence that her age played any role in her discharge. Grogan has conceded that she was terminated for "unsatisfactory performance"³ and replaced by an employee only two years younger than herself. Furthermore, she admitted that the pressure, or what she has characterized as "harassment," was put on all branch managers; during her deposition, Plaintiff testified as follows about her reaction to the new, nondiscriminatory emphasis on sales skills:

A.... All branches had goals, all branches were, you know, talked to. It was a constant meeting the expectations of our goals.... The pressure that was brought on me was naturally to meet my goals... it was a pressure that was given, you know, to make your managers meet their goals ....

Q. Weren't all employees, all branch managers, pressured to meet their goals?

A. Yes, yes. I didn't say that they weren't. We all were.

Q. Whether they were under 40 or over 40?

A. Yes.

Q. Who put the pressure on you to meet your goals?

A. Well anywhere [sic] from Lee [Stallings] to California. I mean, you know. everybody was doing their job.

Q. Okay.

A. Passing down. I was putting pressure on my staff. You know, we were all doing that.

Q. So, it was legitimate for the company to pressure its employees to meet its goals.

A. And it was understandable.

Ex. C, Grogan Dep. at 206-07. The deposition also demonstrates that Grogan was not meeting her sales goals. "[W]e were not at our goal, but, you know, we weren't the worst, but we weren't meeting the goals." Id. at 212. She also admitted that Home Savings replaced her with fifty-one year old Linda Parkey, who was only "two years younger than me." Id. at 261.

Defendant, with supporting documentary evidence, details Plaintiff's disruptive conduct and her failure to learn new sales skills, to complete required assignments, and to accept the new sales culture. It further demonstrates her deteriorating job performance, including a four-day unexcused absence and disciplinary counselings and warnings.

Finally, Plaintiff called in sick because she did not wish to meet with Larry Andrews, Defendant's new Group Sales Director, as scheduled on August 7, 1996. Ex. C to Defendant's motion for summary judgment, Grogan Dep. at 271 ("I felt very stressed, and I didn't really want to meet with Mr. Andrews with how I felt."); Ex. A to Defendant's motion for summary judgment, Tracey Gargan⁴ Aff. par. 9. Plaintiff did not return to work, but remained on "stress leave" for nearly six months on full salary. She also cleaned out her office in early August 1996. She claimed that she suffered anxiety attacks whenever she considered returning to work and experienced 5-6 such attacks. She did not take any medicine, but obtained a physician's excuse to stay home. "It was like I felt relieved... [that] I wasn't going to be forced into the unpleasant situation of being terminated." Ex. C, Grogan Dep. at 273-74. After Plaintiff provided a note from her doctor stating that she was well and able to return to work, Plaintiff was discharged on January 21, 1997 "for behavior that continues to demonstrate a resistant, borderline, insubordinate attitude toward embracing and managing the new sales culture." Ex. C, Grogan Dep., Ex. 15; Lee Stallings⁵ Aff. par. 11; Gargan Aff., Ex. A at par. 11. According to her deposition testimony, at 107 and 273, she has not had any anxiety attacks since and believes she is emotionally stable. Defendant's stated reasons for her discharge are her August 1996 failure to appear for her meeting with Andrews, her failure to prepare required materials for a visit by Carl Forsythe, Home Savings' National Sales Director, her failure to follow company procedures, resulting in poor leadership for branch employees, and disruptive comments during a sales training seminar in February 1996, including a refusal to learn effective listening skills.

Furthermore, argues Defendant, Plaintiff's claim for defamation, which is based on allegations that some of her friends and former customers were told that she had suffered a nervous breakdown, is time barred, is defective because the statements she complains about are true, and lacks any evidentiary support to demonstrate that the statements were made by or attributable to Defendant.

Moreover, insists Defendant, Plaintiff's claim for intentional infliction of emotional distress must also fail because she complains of a garden-variety employment dispute and because nothing about her discharge is extreme or outrageous.

The Texas Commission on Human Rights Act ("TCHRA"), Section 21.051 of the Texas Labor Code provides in relevant part, "An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin or age...