Opinion
1:18-CV-1093-RP
01-02-2020
SEPTEMBER DAVIS, Plaintiff, v. UNITED HEALTH SERVICES d/b/a MERIDELL ACHIEVEMENT CENTER, Defendant.
ORDER
Before the Court is Defendant United Health Services d/b/a Meridell Achievement Center's ("Meridell") motion for summary judgment, (Dkt. 16), the accompanying briefing, (Am. Resp., Dkt. 20; Reply, Dkt. 21), and Meridell's unopposed motion to strike Plaintiff September Davis's ("Davis") sur-reply, (Sur-Reply, Dkt. 22; Mot. Strike, Dkt. 23). After considering the parties' arguments, the record, and the relevant law, the Court grants Meridell's motion to strike, (Dkt. 23), and Meridell's motion for summary judgment. (Dkt. 16).
Because the Court initially grants Meridell's motion to strike, (Dkt. 23), it does not consider any arguments in Davis's sur-reply, (Dkt. 22), in deciding Meridell's motion for summary judgment, (Dkt. 16).
I. BACKGROUND
This case concerns Davis's claims of unlawful discrimination and retaliation arising from her termination as a nurse at a residential adolescent psychiatric facility operated by Meridell. (Compl., Dkt. 1, at 1-2). Meridell employed Davis in this capacity for about 23 years. (Id. at 2). The facility "house[s] male adolescent patients, many of whom were admitted . . . for presenting high-risk signs such as suicidal ideation, violent outbursts, or sexually aggressive behavior." (Mot. Summ. J., Dkt. 16, at 3). Davis worked at night and her duties included regularly surveying patients to ensure their safety ("rounding"). (See id. at 3-5, 9). Her performance evaluations were "mixed," though, as Meridell characterizes it, she "rose through the ranks." (Id. at 2).
In December 2015, Davis voluntarily resigned her position as "Night Nurse Coordinator" and "focus[ed] on working as the core night nurse" in the unit in which she worked. (Id. at 3, 7-8). Her "duties were reduced accordingly." (Id.). Davis says that "[s]he was only allowed to be scheduled for a 32-hour work week in order to avoid being able to earn additional compensation paid for work in excess of 40 hours per week that was made available to younger workers and same[-]age male counterparts" (Compl., Dkt. 1, at 2), while Meridell says that she chose to do so, that it did not reduce her pay, and that she received bonuses and a raise, (Mot. Summ. J., Dkt. 16, at 3, 7-8).
Davis—who is approximately fifty-eight years old, (Compl., Dkt. 1, at 1), and lesbian (Davis Dep. Tr., Dkt. 17-14, at 7)—asserts that at various points during her employment, she "complained to management" about what she felt was "the differential treatment and support" afforded to younger versus older employees, as well as "negative treatment of and disdain for patients and employees whose sexual orientation was different from the majority." (Compl., Dkt. 1, at 3). In a deposition, she explained that during a "town hall"-style meeting about "cultural sensitivity" with Meridell's then-CEO, she had said that "as a gay woman, I felt it was important to also remember to be sensitive to people that have other sexual orientation[s]." (Davis Dep. Tr., Dkt. 17-14, at 7). As Davis recalled the incident, the then-CEO "didn't really respond to the suggestion of being gay"; the "look on his face" indicated to her that he was "taken aback." (Id.).
In June 2019, a Meridell manager audited surveillance camera footage taken during Davis's shifts and did not see her or other staff performing their rounding duties. (Id. at 3-4). The footage showed Davis at a desk next to her coworker, who she supervised, and who "had his feet up." (Id. at 4). In Meridell's telling, Davis "appeared to be sleeping," (id. at 4-5); Davis states that she was suffering from a "sinus headache" and "would, from time to time[,] put her head down on the desk . . . to ease the pain," (Compl., Dkt. 1, at 3; see also Am. Resp., Dkt. 20, at 3). According to Meridell, Davis's coworker performed his rounds "shoddily," and Davis herself "falsely certif[ied] that the required rounds were properly recorded and completed. (Mot. Summ. J., Dkt. 16, at 4-5). Meridell later deleted the video footage "in the ordinary course of its business" by "recording over [it] when recording a subsequent shift." (Am. Resp., Dkt. 20, at 3).
The parties do not substantively discuss, and so the Court does not address at length, the topic of spoliation. But given that Meridell later told Davis that she could file a complaint—thus reasonably anticipating that she might do so—it is curious that Meridell would have chosen to delete this recording, which was reasonably likely to become a topic of litigation (and indeed did, (see Am. Resp., Dkt. 20, at 2-3)). See, e.g., Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003)).
On June 12, 2018, Meridell managers called Davis to "discuss their findings." (Mot. Summ. J., Dkt. 16, at 5). They explained what they believed the footage showed. (Compl., Dkt. 1, at 3-4; Mot. Summ. J., Dkt. 16, at 5). The parties explain what happened next differently. As Davis tells it:
Because she had put her head down on the desk, the managers concluded that [Davis] had been sleeping on the job and terminated her employment. [Davis] attempted to explain that she had been ill, suffering from a severe sinus headache, but was not sleeping. The managers would not listen to her explanation, but made it clear by their tone of voice that they had been looking for an excused [sic] to fire her, and were determined to do so, regardless of the truth.(Compl., Dkt. 1, at 4). Meanwhile, Meridell says that while Davis "initially defended herself," as the conversation progressed, she "seemed shocked," "eventually confessed 'I own it, I own it,'" and "apologiz[ed] for 'putting her patients' safety at risk.'" (Mot. Summ. J., Dkt. 16, at 5 (quoting Chaumont Aff., Dkt. 17-1, at 4-5; Pontious Aff., Dkt. 17-13, at 4)). In a subsequent call, Meridell "informed [Davis] that [it] had decided to terminate her employment." (Id. at 6). Meridell alleges that "Davis explained that she believed Meridell's problem with her was her sexuality 'and the fact that she is open about it.'" (Id. (quoting Chaumont Aff., Dkt. 17-1, at 5; Pontious Aff., Dkt. 17-13, at 4)). Meridell's managers told Davis that she could "file a complaint with corporate" and that they were "terminating her for 'multiple violations of policy, falsification of records, and her failure to properly supervise the patients.'" (Id. (quoting Chaumont Aff., Dkt. 17-1, at 5)).
Chaumont filed her complaint in this case on December 17, 2018. (Dkt. 1). She alleges that by terminating her, Meridell unlawfully discriminated against her because of her age and sexual orientation and retaliated against her for complaining about perceived differential treatment because of those characteristics. (Id. at 4). In doing so, she argues, Meridell violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a), (d), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"), their corresponding Texas statutes, Tex. Labor Code §§ 21.051, .055, and a treatment-facility-specific whistleblower statute, Texas Health & Safety Code § 161.134. (Compl., Dkt. 1, at 4-5). Meridell timely filed its motion for summary judgment, (Dkt. 16; see Order, Dkt. 14, at 1).
The Court construes her "sexuality discrimination" claims to have been made under Title VII, rather than the ADEA as stated. (Compl., Dkt. 1, at 4). See Part III.C.3, infra.
II. MERIDELL'S UNOPPOSED MOTION TO STRIKE DAVIS'S SUR-REPLY, (SUR-
REPLY, DKT. 22; MOT. STRIKE, DKT. 23)
A. Legal Standard
Under the local rules, a party may file a reply in support of a motion, but "[a]bsent leave of court, no further submissions on the motion are allowed." W.D. Tex. Loc. R. CV-7(f). Sur-replies are "'highly disfavored' and permitted only in 'extraordinary circumstances,' such as when necessary to respond to new issues, theories, or arguments raised for the first time in a reply brief." Manchester Texas Fin. Grp., LLC v. Badame, No. A-19-CV-00009-LY, 2019 WL 4228370, at *1 n.1 (W.D. Tex. Sept. 4, 2019) (quoting Luna v. Valdez, 2017 WL 4222695, at *6 (N.D. Tex. Sept. 21, 2017)). Essentially, "[t]he purpose for having a motion, response, and reply is to give the movant the final opportunity to be heard. A sur-reply is appropriate by the non-movant only when the movant raises new legal theories or attempts to present new evidence at the reply stage." Racetrac Petroleum, Inc. v. J.J.'s Fast Stop, Inc., No. CIV.A. 3:01-CV-1397, 2003 WL 251318, at *18 (N.D. Tex. Feb. 3, 2003). When the nonmoving party does not "challeng[e] any alleged newly-presented legal theories" raised by the movant in its reply, and "simply wants an opportunity to continue the argument," a sur-reply is inappropriate. Id.
B. Analysis
Meridell argues that Davis's sur-reply, (Dkt. 22), "does not identify any genuine issue of material fact" and instead "simply regurgitates [Davis's] assertion that she was not sleeping on the job." (Mot. Strike, Dkt. 23, at 1). Meridell further argues that the sur-reply does not address the basis for its motion for summary judgment, which concerns Davis's prima facie cases for her claims. (Id. at 1-2).
The local rules provide that for responsive filings after the reply, "[a]bsent leave of court, no further submissions on the motion are allowed." W.D. Tex. Loc. R. CV-7(f). They also allow the moving party to indicate, using a certificate of conference, that "there is no opposition to any of the relief requested in the motion," id. at (i), and, in an analogous context, that the Court may grant motions when they are unopposed, id. at (e)(2). Because Davis did not seek the Court's leave before filing her sur-reply, and because she is not opposed to the relief Meridell seeks, the Court grants Meridell's motion to strike her sur-reply. (Mot. Strike, Dkt. 23).
By framing its motion as a request to strike a pleading, Meridell potentially invokes Federal Rule of Civil Procedure 12(f). Generally, the Court "may strike from a pleading . . . any redundant [or] immaterial . . . matter" on a party's motion made before its response to the pleading. Fed. R. Civ. P. 12(f). At the same time, though, "the action of striking a pleading should be sparingly used by the courts" and that "motion[s] to strike should be granted only when the pleading to be stricken has no possible relation to the controversy." United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012) (quoting Augustus v. Bd. of Pub. Instr. of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)). But the Court "has broad discretion to determine whether the challenged matter should be stricken." Gilchrist v. Schlumberger Tech. Corp., 321 F.R.D. 300, 302 (W.D. Tex. 2017). Here, the Court determines that Davis's sur-reply is sufficiently redundant and distant from the specific controversy at issue to be validly stricken under Rule 12(f).
III. MERIDELL'S MOTION FOR SUMMARY JUDGMENT, (DKT. 16)
A. Legal Standard
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine only 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, 254 (1986). "A fact issue is 'material' if its resolution could affect the outcome of the action." Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion[] and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[T]he moving party may [also] meet its burden by simply pointing to an absence of evidence to support the nonmoving party's case." Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Furthermore, the nonmoving party is required to identify specific evidence in the record and to articulate the precise way that evidence supports her claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmoving party's opposition to the motion for summary judgment. Id. After the nonmoving party has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find in its favor, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000). The court must view the summary judgment evidence in the light most favorable to the nonmoving party. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
Federal Rule of Civil Procedure 56(c)(1) provides that parties litigating a motion for summary judgment may draw on "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." In general, "[t]he court and the parties have great flexibility with regard to the evidence that may be used in a Rule 56 proceeding." 10A Charles A. Wright, et al., Federal Practice and Procedure § 2721 (4th ed., Aug. 2019 update). Still, "the evidence proffered by the [movant] to satisfy his burden of proof must be competent and admissible at trial." Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987)). And "the threshold issue of admissibility must be resolved before determining whether or not unresolved questions of fact exist." United States v. Hangar One, Inc., 563 F.2d 1155, 1157 (5th Cir. 1977). Similarly, Rule 56(e) permits the nonmoving party to invoke "any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred." Celotex, 477 U.S. at 324. Though the Supreme Court in Celotex "gave some indication that the nonmoving party's Rule 56(e) evidence might not have to be in strictly admissible form," the Fifth Circuit has held that "Celotex did not alter the settled law that 'Rule 56 requires the adversary to set forth facts that would be admissible in evidence at trial.'" Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991) (quoting Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990)). Still, it is "not the district court's duty to examine whether and how [the potentially inadmissible evidence] might be reduced to acceptable form by the time of trial." Id.
These evidentiary rules apply to affidavits as well. See, e.g., United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008); Tucker v. SAS Inst., Inc., 462 F. Supp. 2d 715, 722 (N.D. Tex. 2006); see also 10A Charles A. Wright, et al., Federal Practice and Procedure § 2738 (4th ed., Aug. 2019 update) (citing Bd. of Pub. Instruction for Hernando Cty., Fla. v. Meredith, 119 F.2d 712, 713 (5th Cir. 1941)) ("[E]x parte affidavits, which are not admissible at trial, are appropriate at a summary-judgment hearing to the extent they contain admissible information that could be introduced as evidence at trial.").
B. Relevant Law
1. ADEA
"Because it is unlikely that there will be direct evidence of an employer's thought process[,] . . . ADEA claims typically rely on circumstantial evidence evaluated under the burden-shifting framework outlined in McDonnell Douglas Co. v. Green, 411 U.S. 792 (1973)." Campbell v. Zayo Grp., L.L.C., 656 F. App'x 711, 713 (5th Cir. 2016) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 141 (2000)). Accordingly, a plaintiff alleging age discrimination under the ADEA, 29 U.S.C. § 623(a), must first "establish a prima facie case of discriminatory treatment based on age" by proving that (1) "they are within the protected class," (2) "they are qualified for the position," (3) "they suffered an adverse employment decision," and (4) "they were replaced by someone younger or treated less favorably than similarly situated younger employees (i.e., suffered from disparate treatment because of membership in the protected class)." Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013) (quoting Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003)). Then, "the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination." Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015).
If the employer does so, "the presumption of discrimination raised by the plaintiff's prima facie case drops out and the plaintiff may attempt to prove discrimination by offering evidence that the employer's stated reason is pretextual." Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 395 (5th Cir. 2002). At this stage, the plaintiff is held to a preponderance of the evidence standard. Goudeau, 793 F.3d at 474. Ultimately, "[t]o establish a disparate-treatment claim under the plain language of the ADEA . . . a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
A plaintiff's claim that her employer retaliated against her for opposing or complaining of the age discrimination she alleges is governed by a similar standard. See 29 U.S.C. § 623(d). She must initially establish a prima facie case by showing "(1) that [she] engaged in a protected activity, (2) that there was an adverse employment action, and (3) that a causal link existed between the protected activity and the adverse employment action." Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 496-97 (5th Cir. 2015) (citing Holtzclaw v. DSC Commc'ns Corp., 255 F.3d 254, 259 (5th Cir. 2001)). "With regard to the first element, a plaintiff has engaged in protected activity if he has 'opposed any practice' forbidden by the ADEA." Heggemeier v. Caldwell Cty., Tex., 826 F.3d 861, 869 (5th Cir. 2016). Then, the burden shifts as described above. See, e.g., Paulissen v. MEI Techs., Inc., 942 F. Supp. 2d 658, 672 (S.D. Tex. 2013). The plaintiff need not necessarily show that similarly situated employees were treated more favorably to establish a prima facie case of retaliation, though that evidence can bolster her case. Heggemeier, 826 F.3d at 867-68; Maestas v. Apple, Inc., 546 F. App'x 422, 428 (5th Cir. 2013) (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001)).
Meridell argues that "proof a similarly situated person who has not engaged in protected activity was treated more favorably" is "[f]undamental to establishing a prima facie case of retaliation." (Mot. Summ. J., Dkt. 16, at 10). But the cases it cites for this proposition do not consider this proof a fundamental element of a prima facie retaliation claim. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007); Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (emphasis added) ("Disparate treatment of similarly situated employees is one way to demonstrate unlawful discrimination and retaliation.").
2. Title VII
"Title VII defines the term 'unlawful employment practice' as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination." Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 359-60 (2013). Plaintiffs bringing Title VII claims are subject to the same McDonnell Douglas burden-shifting framework as those bringing ADEA claims. See Part III.B.1, supra.
Likewise, retaliation claims made under Title VII, 42 U.S.C. § 2000e-3(a), follow the same pattern. Title VII prohibits an employer from retaliating against an employee who engages in protected activity by "oppos[ing] any practice made an unlawful employment practice by this subchapter." O'Daniel v. Indus. Serv. Sols., 922 F.3d 299, 305 (5th Cir. 2019) (quoting 42 U.S.C. § 2000e-3(a)). "The threshold criterion for relief under this provision is a showing that the plaintiff 'participated in an activity protected under the statute.'" Id. (quoting Feist v. La., 730 F.3d 450, 454 5th Cir. 2013)). "[T]he relevant question . . . is not whether a formal accusation of discrimination is made but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner." Id. at 305-06 (quoting Yount v. S & A Restaurant Corp., 226 F.3d 641, 2000 WL 1029010, at *3 (5th Cir. 2000) (per curiam)). If she proves that, then the McDonnell Douglas burden-shifting framework applies. See Wooten, 788 F.3d at 496-97. Ultimately, "[t]he proper standard of proof . . . [for] a Title VII retaliation claim is that the adverse employment action . . . would not have occurred 'but for' [the] protected conduct." Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir. 2007) (quoting Septimus v. University of Houston, 399 F.3d 601, 608 (5th Cir. 2005)).
3. Texas Labor Code §§ 21.051, .055
Texas Labor Code § 21.051 governs unlawful discrimination "because of race, color, disability, religion, sex, national origin, or age," while Texas Labor Code § 21.055 covers retaliation against employees who oppose or complain of that discrimination. These statutes' "general purposes" include "provid[ing] for the execution of the policies of Title VII," Tex. Labor Code § 21.001; "'analogous federal statutes and the cases interpreting them guide' the reading of the statute." Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004) (quoting Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001)). That is true as well for age discrimination claims under Texas Labor Code § 21.051 and analogous to those under the ADEA. See Goudeau, 793 F.3d at 474; Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013). However, Texas Labor Code § 21.051 "requires a less demanding showing [than Title VII and the ADEA] as a plaintiff can prove discrimination at the third stage by establishing that 'either (1) the reason stated by the employer was a pretext for discrimination, or (2) the defendant's reason, while true, was only one reason for its conduct and discrimination is another motivating factor.'" Goudeau, 793 F.3d at 475 (quoting Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012)).
4. Texas Health and Safety Code § 161.134
Texas Health and Safety Code § 161.134(a) prohibits "[a] hospital, mental health facility, or treatment facility" from "suspend[ing] or terminat[ing] the employment of or discipline or otherwise discriminat[ing] against an employee for reporting to the employee's supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency a violation of law." Plaintiffs bringing claims under this statute have the burden of proof, though a rebuttable presumption of causation exists if the adverse employment action occurred "before the 60th day after the date on which the plaintiff made a report in good faith." Tex. Health & Safety Code § 161.134(f). Plaintiffs must bring their claims "before the 180th day after the date the alleged violation occurred or was discovered by the employee through the use of reasonable diligence." Id. at (h).
C. Analysis
1. Evidentiary Issues
First, the Court considers Davis's evidentiary objection to three affidavits supporting Meridell's motion, (Am. Resp., Dkt. 20, at 1-3; see Chaumont Aff., Dkt. 17-1; Flannery Aff., Dkt. 17-12; Pontious Aff., Dkt. 17-13), and Meridell's own objection to the declaration by Davis's counsel attached to her response, (Reply, Dkt. 21, at 2-3; see Judge Decl., Dkt. 19 at 8). See United States v. Hangar One, Inc., 563 F.2d 1155, 1157 (5th Cir. 1977) ("[T]he threshold issue of admissibility must be resolved before determining whether or not unresolved questions of fact exist."). For the reasons discussed below, the Court finds that each of the affidavits supporting Meridell's motion are admissible, while the declaration supporting Davis's response is inadmissible.
i. Meridell's Affidavits
Davis "makes a hearsay objection to the affidavit testimony proffered by [Meridell], which purports to recount what the witness claimed to observe on the video recording." (Am. Resp., Dkt. 20, at 1). Specifically, she challenges the admissibility of portions of three affidavits in which the affiants discuss Davis allegedly sleeping, falsifying patient records, and her coworker's alleged neglect of duties. (Id. at 2; see Chaumont Aff., Dkt. 17-1, at 3-4; Flannery Aff., Dkt. 17-12, at 3; Pontious Aff., Dkt. 17-13, at 2-3). Davis argues that because none of these affiants "actually observed [Davis] sleeping on the job," and instead "claim to have observed a mechanical video recording" showing that, the recording itself is inadmissible if it is "[o]ffered for the purpose of proving [Davis] was sleeping on the job." (Id.).
But Davis then states that because Meridell is not attempting to introduce the recording itself as evidence, it is "unnecessary to determine whether the missing mechanical video recording satisfies any recognized exception to the hearsay rule"—effectively defanging her objection. (Id.). Indeed, as Meridell points out, it is not offering the recording itself, but rather the affiants' (who work for Meridell) statements about their observations of the recording. (Reply, Dkt. 21, at 1-2). It offers those statements to "show Meridell's state of mind" to establish a legitimate, nondiscriminatory reason for terminating Davis. (Id. at 2 (citing Fed. R. Evid. 803(3))). The Court agrees; these statements are admissible under the "then-existing state of mind" hearsay exception when considering Meridell's motion for summary judgment.
ii. Davis's Declaration
Meridell in turn objects to the declaration by Davis's counsel attached to her response, (Reply, Dkt. 21, at 2-3), in which he states that Meridell managers told him the video recording in question had been erased, (Judge Decl., Dkt. 19 at 8). Meridell argues that this statement is "inadmissible hearsay not within any exception," "irrelevant," and "could not be presented at trial" because the rules of professional conduct prohibit counsel who may be a necessary witness in a party's trial from representing that party. (Reply, Dkt. 21, at 3 (citing Texas Disciplinary R. Prof. Conduct 3.08)).
Davis, as the nonmoving party, need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment," Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), but the facts that evidence contains must be admissible at trial for the Court to be able to consider them under Rule 56, Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991). See Part III.A, supra. Texas Disciplinary Rule of Professional Conduct 3.08(a) would preclude Judge, as Davis's counsel, from testifying on her behalf about what Meridell's managers allegedly told him—but only if Judge would be a "necessary" witness and the subjects of those conversations are "essential" facts. If those conditions were satisfied, then the Court could consider the contents of his affidavit at this procedural posture. The advocate-witness rule is a rule of professional conduct, not a rule governing the admissibility of evidence. See generally Restatement (Third) of the Law Governing Lawyers § 108 (Am. Law. Inst. 2000, Oct. 2019 update) ("The decisions generally agree that testimony in violation of the advocate-witness rule is not incompetent if otherwise admissible.").
However, neither of those is clear here. As Meridell argues, "whether Davis was, in fact, sleeping is ultimately not the issue in a lawsuit based on unlawful discrimination." (Reply, Dkt. 21, at 2). Neither is whether the video recording in question was deleted. "[T]he issue is whether Meridell terminated Davis for unlawful reasons based on discriminatory animus." (Id.). So Judge's affidavit is irrelevant, and therefore inadmissible, in that it does not allege any facts "of consequence in determining the action"—it does not make any material fact more or less probable. Fed. R. Evid. 401.
2. Age Discrimination and Retaliation
With the array of evidence before it solidified, the Court turns to Davis's substantive claims.
i. Discrimination
There is no genuine dispute of material fact as to whether Davis satisfies the first three elements of a prima facie case of discrimination under the ADEA. See Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013). Davis states, and Meridell does not dispute, that she is within the protected class because she is approximately fifty-eight years old. (Compl., Dkt. 1, at 1). See generally 29 U.S.C. § 631(a) (defining the protected class as "individuals who are at least 40 years of age"). Meridell does not dispute that Davis was qualified for her position. (Compl, Dkt. 1, at 1-2 (Davis, a registered nurse, worked at Meridell "for approximately 23 years"); Mot. Summ. J., Dkt. 16, at 2 ("Davis rose through the ranks," albeit with "mixed" performance evaluations)). And Meridell does not dispute that it terminated Davis: the paradigmatic adverse employment decision. (Compl., Dkt. 1, at 4; Mot. Summ. J., Dkt. 16, at 6).
The locus of the dispute over whether Davis has established a prima facie ADEA case is thus whether she was replaced by someone younger, and in turn, whether she suffered from disparate treatment because of her age. Leal, 731 F.3d at 410-11. Davis never asserts that Meridell replaced her with someone younger, (see Compl., Dkt. 1, Am. Resp., Dkt. 20), while Meridell says that it in fact replaced her with a 71-year-old employee, (Mot. Summ. J., Dkt. 16, at 9). In other words, this very material fact—which constitutes a basic element of Davis's putative prima facie ADEA case—is undisputed.
Because the evidence in the record shows that there is no genuine dispute of material fact on this issue, Meridell is entitled to summary judgment in its favor on Davis's ADEA and Texas-law discrimination claims. (See Compl., Dkt. 1, at 4). The Court does not reach the remainder of the burden-shifting framework.
ii. Retaliation
Meridell is also entitled to summary judgment on Davis's retaliation claim under the ADEA and analogous Texas law. Initially, the parties dispute whether she has established a prima facie retaliation case. See Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 496-97 (5th Cir. 2015). For the first element, whether Davis engaged in an ADEA-protected activity, Davis states that she "complained to management" about "differential treatment and support" between younger and older workers, as well as a "wage-cap classification" she felt applied unjustly to her and not younger workers. See 29 U.S.C. § 623(d). (Compl., Dkt. 1, at 2-3). Meridell points to its deposition of Davis, which it characterizes as showing Davis having "acknowledged . . . that she did not make any complaints regarding age discrimination." (Mot. Summ. J., Dkt. 16, at 10). But though the deposition transcript shows Davis acknowledging she did not make a formal complaint, it does not establish that she never complained informally—also a protected activity, since it constitutes having "opposed" a putatively unlawful practice under the statute's capacious language. See 29 U.S.C. § 623(d); Heggemeier v. Caldwell Cty., Tex., 826 F.3d 861, 869 (5th Cir. 2016). (Cf. Mot. Summ. J., Dkt. 16, at 2 (discussing the lack of complaints "in the feedback portions of [Davis's] annual evaluations")). Making this inference in favor of Davis, the nonmoving party, the Court moves to the next element, and again finds that she suffered an adverse employment action in her termination.
The transcript reads, in relevant part:
Q. Is it true that you never filed a complaint with Meridell that you believed you were being discriminated against for your sexual orientation?(Dkt. 17-14 at 8-9 (emphasis added)).
A. I did not believe it would work.
Q. Okay. So the answer to that is, then, no; right?
A. That's not what I said.
Q. Okay. You did not file a complaint, though; is that true?
A. It would not have done any good.
Q. Okay. All right. Did you ever make a complaint to Meridell about age discrimination, that you felt you were being discriminated against for your age?
A. Again, it would not have done any good.
Q. So am I right in saying that you never made a complaint to anyone at Meridell about either age discrimination or sexual orientation discrimination during your employment?
A. When I attempted to get the number to someone in corporate to complain to, I was not given a number.
For the fourth element, Davis alleges that Meridell's "true motives for terminating her employment" included "retaliation for her complaints." (Compl., Dkt. 1, at 4). Meridell argues that it terminated Davis "for legitimate, non-retaliatory reasons, i.e., her failure to observe hospital policy, failure to supervise a mental health technician[,] . . . and her falsification of rounding sheets." (Mot. Summ. J., Dkt. 16, at 11). Even assuming that Davis has satisfactorily established this element, the Court finds that Meridell has established a "legitimate, nondiscriminatory reason for the termination," carrying its shifted burden. See Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015).
So, the burden shifts back to Davis to "attempt to prove discrimination by offering evidence that the employer's stated reason is pretextual." Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 395 (5th Cir. 2002). Davis offers no additional evidence that Meridell's stated reason is pretextual. (See Am. Resp., Dkt. 20). Therefore, the Court finds that Davis has not carried her burden at this step of the analysis and so cannot survive Meridell's motion for summary judgment on this claim.
3. Sexual Orientation Discrimination and Retaliation
As an initial matter, Davis makes her "sexuality discrimination" and related retaliation claims "in violation of the ADEA." (Compl., Dkt. 1, at 4-5). However, the ADEA only pertains to age discrimination claims. 29 U.S.C. § 623(a). Meridell treats Davis's claims concerning sexual orientation as being made under Title VII. (See Mot. Summ. J., Dkt. 16, at 11-14). Though Fifth Circuit law, in its current state, does not permit Title VII claims based on sexual orientation, as discussed below, Title VII is a logical statute for Davis to invoke in making a claim of discrimination "because of" sexual orientation. 42 U.S.C. § 2000e-2(a)(1). (See also Am. Resp., Dkt. 20, at 5 (discussing the Supreme Court's current consideration of whether Title VII permits those claims)). "The reference to a statute as being the basic ground upon which an action is brought, even if completely incorrect, is no ground for the dismissal of an action where there is a statute in existence which would warrant a valid cause of action for which relief could be granted upon the facts as pleaded." Bigelow v. United Healthcare of Mississippi, Inc., 220 F.3d 339, 344 n.11 (5th Cir. 2000); see also Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002) (quoting Fed. R. Civ. P. 8(a)(2)) ("[A]n employment discrimination complaint . . . must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'"). Therefore, the Court will follow the parties in treating Davis's sexual-orientation-related claims as having been litigated under Title VII. See Bigelow, 220 F.3d at 344 n.11 ("[A] court . . . may take judicial notice of the existence of the applicable statute and treat the case as though it had been litigated pursuant to that statute from the outset.").
Even under Title VII, however, Davis's sexual-orientation-related discrimination and retaliation claims are precluded by Fifth Circuit law in its current state, as Meridell argues. (See Mot. Summ. J., Dkt. 16, at 11-14, Reply, Dkt. 21, at 5-6). The Fifth Circuit recently reiterated that "'sex' discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping," but not on sexual orientation (categories it deems different). O'Daniel v. Indus. Serv. Sols., 922 F.3d 299, 305 (5th Cir. 2019). It describes its "stance barring Title VII coverage of 'sexual orientation' as a protected class" as "unequivocal." Id. at 305-06.
In response, Davis notes that this issue is currently pending before the Supreme Court. (Am. Resp., Dkt. 20, at 5 (citing Order Granting Petition for Certiorari, Bostock v. Clayton Cnty., Ga., No. 17-1618 (U.S. Apr. 22, 2019)). She describes her sexual-orientation-related claims as "based on a good[-]faith argument for an extension, modification[,] or reversal of existing law," and requests that the Court "withhold ruling on [them] until a definitive ruling has been issued by the Supreme Court." (Id.). Meridell's rejoinder is that Davis invokes the standard for representations to the court and associated sanctions, rather than anything material to the summary judgment determination, and that "there is no basis for delay." (Reply, Dkt. 21, at 5 (citing Fed. R. Civ. P. 11(b)-(c))).
The Court concurs with Meridell. Davis's argument may very well be made in good faith and call for a modification or reversal of the Fifth Circuit's stance. But that standard is only germane in the context of sanctions based on improper representations to the Court, which are not at issue here. See, e.g., Bogney v. Jones, 904 F.2d 272, 274 (5th Cir. 1990). The Court must render rulings based on the current state of the law as explicated by the courts above it, regardless of the possibility of future change—even if, as the Supreme Court's grant of certiorari on this issue shows, the concern at issue here is effectively an open question of law. As a result, the Court does not reach Title VII's burden-shifting analysis. Meridell is entitled to judgment as a matter of law in its favor on Davis's sexual-orientation-related discrimination and retaliation claims.
4. Retaliation under Texas Health and Safety Code § 161.134
Finally, Davis claims that Meridell unlawfully retaliated against her under Texas Health and Safety Code § 161.134 by "discriminating against her for her report of a violation of law to her supervisor and facility administrator." (Compl., Dkt. 1, at 5). In its motion, Meridell argues that Davis's claim is time-barred and that it fails to establish the statutorily required "violation of law." (Mot. Summ., J., Dkt. 16, at 14-15). Davis filed this case on December 17, 2018, (Notice of Electronic Filing, Dkt. 1). Davis could have reported an alleged violation of law at any time before her June 12, 2018, termination, so the deadline for filing her claim would have been December 9, 2018, at the latest. See Tex. Health & Safety Code § 161.134(f). (Mot. Summ. J., Dkt. 16, at 15). Davis offers no justification for this delay and makes no argument that equitable tolling should apply. See generally Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 930 n.24 (Tex. 2011). (See Compl., Dkt. 1; Am. Resp., Dkt. 20). Given that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law," the Court finds that Davis's claim is statutorily time-barred and that Meridell is entitled to summary judgment on it. Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). The Court does not reach the substance of Davis's claim.
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that Meridell's unopposed motion to strike Davis's sur-reply, (Sur-Reply, Dkt. 22; Mot. Strike, Dkt. 23), and Meridell's motion for summary judgment, (Dkt. 16), are GRANTED. Meridell is entitled to summary judgment in its favor on each of Davis's claims. (See Compl., Dkt. 1, at 4-5). The Court will issue final judgment in a separate order.
SIGNED on January 2, 2020.
/s/_________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE