Morris v. Tex. Health & Human Servs. Comm'n

• Decision Date: 08 August 2019
• Docket Number: CIVIL ACTION NO. H-16-3116
• Parties: LENA D. MORRIS, Plaintiff, v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Defendant.
• Court: U.S. District Court — Southern District of Texas

LENA D. MORRIS, Plaintiff, v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Defendant.

CIVIL ACTION NO. H-16-3116

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

August 8, 2019

MEMORANDUM OPINION AND ORDER

Plaintiff, Lena D. Morris, brings this action against defendant, the Texas Health and Human Services Commission ("THHSC") for race, sex, and age discrimination and for retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-2, et seq., and for interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Pending before the court are Defendant's Motion for Summary Judgment ("Defendant's MSJ") (Docket Entry No. 22), and Plaintiff Lena D. Morris' Motion for Leave to File Sur-Reply to Defendant's Reply to Plaintiff's Opposition to the Motion for Summary Judgment ("Plaintiff's Motion for Leave to File Sur-Reply") (Docket Entry No. 29). For the reasons set forth below, Plaintiff's Motion for Leave to File Sur-Reply will be denied as moot, and Defendant's MSJ will be granted in part and denied in part.

I. Standard of Review

Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed. R. Civ. P. 56. Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986). A "party moving for summary judgment must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (quoting Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986)). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Id. If, however, the moving party meets this burden, Rule 56 requires the nonmovant to go beyond the pleadings and show by admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. "[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

II. Undisputed Facts¹

In December of 2014 Lisa Pietrzyk ("Pietrzyk"), Director of the Office of Inspector General ("OIG") for the THHSC, offered Morris, an African-American woman, an Investigator VI position at the Electronic Benefits Transactions ("EBT") Unit in Houston.² Morris accepted the offer and began working for the THHSC as a probationary employee on January 9, 2015.³ Morris initially reported to Ronald Mendoza ("Mendoza"), manager of OIG's Houston office.⁴ Within Morris' first month of employment, Orlando Mayers ("Mayers") was hired to manage the EBT Unit, and he became Morris's direct supervisor even though he was based in Austin.⁵

On her first day of work Morris provided Mendoza a Certification of Health Care Provider for Family Member's Serious Health Condition intended to show that she qualified for intermittent FMLA leave to care for her daughter. Morris filled out, signed, and dated the first page on January 8, 2015, stating:

My leave will be sporadic and unscheduled at times. I will have to transport her to various doctor and therapist appointments. And during the time that she is incapacitated, I will need to stay with her. I have to tend to her daily needs during these times.⁶

The subsequent pages had been filled out, signed, and dated by her daughter's health care provider on September 24, 2014.⁷

Two other employees of the EBT Unit in Houston both started their employment at or near the time that Morris started her employment there: Rick McDougald ("McDougald") (Investigator VI) and Steve Lightfoot ("Lightfoot") (Investigator V).⁸ Although Lightfoot's position as Investigator V was a lower-ranked position than Morris's and McDougald's position, Lightfoot earned $63,139.00 per annum while Morris and McDougald earned $52,800.⁹

On January 14, 2015, Mendoza sent Pietrzyk an email stating:

[Morris] provided FMLA documentation for a family member (daughter) that she occasionally takes to the doctor. She has requested the following days off or adjustments of hours listed:

The week of 1/20/15 - FMLA - Would like to work 11 hours on 1/21, 1/22 and 10 hours on 1/23.

The week of 02/20/15 - Would like to work 4-10 hour[] days to avoid taking leave.

The week of 02/26/15-02/27/15 Annual Leave - Would like to work 3-10 hour days for that week.

The week of 03/03/15 - FMLA - Would like to work 4-10 hour[] days to avoid taking leave.

The week of 03/13/15 - FMLA - Would like to work 4-10 hour[] days to avoid taking leave.

These are appointments that are already scheduled. She stated if other days come up unexpectedly, she will inform us. She also indicated the reason she would like to avoid having to take leave is due to if her daughter is hospitalized, she will have the leave to cover her being out.¹⁰

On January 15, 2015, Pietrzyk and Mayers engaged in an exchange of emails about Morris's requests for leave that began when Pietrzyk responded to Mayers' email from the day before by asking, "Have all required documents been received and who reviewed them? Is Lena Morris EBT or FI?"¹¹ Mendoza replied by attaching Morris's FMLA documents to an email that he sent to Pietrzyk stating, "She is with EBT."¹² Pietrzyk responded by asking, "Doesthis new employee meet the FMLA Ch 5 eligibility?"¹³ Mendoza replied: "[Morris] has been employed with the State 17 years. She is a transfer from TWC. She stated the FMLA was approved by the other agency she was employed with. If more information is needed, please let me know."¹⁴

Later the same day, i.e., January 15, 2015, Pietrzyk forwarded the email chain about Morris's FMLA requests to James Williams, Human Relations Manager, in the THHSC's Human Resources Section along with the following message: "Does this FMLA flex schedule seem consistent with our agency? My understanding is that she's to take leave and it[] codes as FMLA. OIG doesn't allow probationary employees to participate in flex schedule[s] like 10 hour days unless they pass probation."¹⁵ Williams responded:

I believe we are dealing with two separate policies. Supervisory approval to work or change a flexible schedule is required according to the HR Policy referenced below.

Flex Schedule

(Revised 5/1/04)

A flex schedule is a work schedule that allows flexibility in the employee's arrival and departure times. An employee must receive supervisory approval to work or change a flexible schedule. Office coverage must be maintained under the flex schedules. State offices must be open between 8 am and 5 pm, Monday through Friday, and remain open during the noon hour of eachworkday with at least one person on duty to accept calls, receive visitors, and transact business.

The FMLA should be invoked for the employee's leave related to the WH-380-F for her daughter's medical condition. We can discuss further if needed.¹⁶

Pietrzyk forwarded Williams' response to Mayers.¹⁷

On March 17, 2015, Morris and Mayers exchanged text messages regarding Morris's intent to be out of the office on Wednesday, March 18th; Mayers told Morris that he thought she intended to be out of the office on March 17th and that she needed to work eight hours on March 18th.¹⁸

On March 23, 2015, Mayers sent an email to Cleve Tolver, Human Resources Specialist IV, in THHSC's Employee Relations Unit, asking Tolver to call him to discuss documents regarding Morris's request for time off.¹⁹ Later that day Tolver sent Mayers an email stating:

FMLA can be granted for the employee to care for the eligible family member.

I did notice that the doctor completed the form back in September of 2014. I would like to suggest that you obtain new information and start the FMLA based on what the new information states.

1st, check to see if the employee has 12 months of state service and has worked 1250 hours within the last year. If the employee meets these requirements, provide theemployee with form WH381 to inform them they meet the requirements. Then, provide them with WH380E to return to you in 15 days.

When you receive the new WH380E, scan it to me and we can discuss.²⁰

On March 24, 2015, Morris sent an email to Mayers titled "Harassment over FMLA and Time," which Mayers forwarded to Pietrzyk the same day. In pertinent part the March 24, 2015, email states:

. . . You indicated on Friday that you had already fired Gina, the only other woman in your three units for missing too much work. It is distressing when a supervisor threatens one's job. I believe this because you clearly stated that you are out to fire me for not having, as you put it, ". . . worked a full week since you have been here." This was said by you despite my having used Flex Time to make up my hours and work a 40 hour week, all previously approved by you. I was told when I first came on board that my permanent manager would work with me on my leave situation. I requested to work 7:00 a.m. to 3:30 p.m. since that was my schedule at the agency that I transferred from. I was told that once Steve started I would be able to work the "Flex Time" hours where I was working 7:00 a.m. - 3:30 p.m., the same as Rick has been allowed to work all along. You claim that Lisa Pietryzk [sic], the Director of the division, is the one telling you that I cannot do this now because I am on probation; yet she is the one who approved Rick's Flex Time. Why the double standard? Why do women not get the same flexibility as the men? Is the real

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