Plaintiff filed a Response on January 11, 2005, and Defendants filed a Reply on January 21, 2005. 

1

Defendants filed a Response on January 14, 2005, and Plaintiff filed a Reply on January 21, 2005. 2

Plaintiff filed a Response on January 29, 2005, and Defendants filed a Reply on February 8, 2005. 

3

However, as the Court denies Plaintiff’s Motion for Leave to File an Oversized Brief and Supplemental Appendix in

Support of Plaintiff’s Response to Defendants’ Motion to Strike, see infra p. 19, the Court does not consider

Plaintiff’s Response or Defendants’ Reply to Defendants’ Motion to Strike. 

Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ESSIE TURNER, §

§

Plaintiff, § CIVIL ACTION NO.

§ 3:03-CV-2139-P

v. §

§

BAYLOR RICHARDSON MEDICAL §

CENTER, a/k/a RICHARDSON §

MEDICAL CENTER FOUNDATION, §

and RICHARDSON HOSPITAL §

AUTHORITY, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER 

Now before the Court are the following Motions: 

1. Defendants’ Motion for Summary Judgment, filed December 13, 2004,1

2. Plaintiff’s Objections and Motion to Strike Defendants’ Summary Judgment

Evidence (“Plaintiff’s First Motion to Strike”), filed January 11, 2005,2

3. Defendants’ Motion to Strike Plaintiff’s Sham Affidavit, Evidentiary Objections

to Plaintiff’s Summary Judgment Proof, and for Award of Attorney’s Fees

(“Defendants’ Motion to Strike”), filed January 21, 2005, 

3

4. Plaintiff’s Objections and Motion to Strike Defendants’ Motion to Strike and

Appendix in Support of Defendants’ Motion to Strike (“Plaintiff’s Second Motion

 

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Defendants filed a Response on February 8, 2005, and Plaintiff filed a Reply on February 8, 2005. 

4

Defendants did not file a Response.

5

Page 2 of 25

to Strike”), filed January 29, 2005, and 4

5. Plaintiff’s Motion for Leave to File an Oversized Brief and Supplemental

Appendix in Support of Plaintiff’s Response to Defendants’ Motion to Strike

(“Plaintiff’s Motion for Leave”), filed January 29, 2005.5

After a thorough review of the pleadings, the briefing, the summary judgment evidence, and the

applicable law, the Court GRANTS Defendants’ Motion for Summary Judgment. The Court

DENIES as MOOT a portion of Plaintiff’s First Motion to Strike, a portion of Defendants’

Motion to Strike, Plaintiff’s Second Motion to Strike, and Plaintiff’s Motion for Leave. To the

extent Plaintiff’s First Motion to Strike and Defendants’ Motion to Strike are not denied as moot,

the Motions are simply DENIED. 

I. Background

Plaintiff Essie Turner (“Turner”) is an African American female. (Pl.’s Compl. ¶ 5.) 

Defendant Richardson Hospital Authority (“RHA”) is a governmental subunit of the State of

Texas that operates as a general hospital in Richardson, Texas. (Pl.’s Compl. ¶ 2.) 

Baylor/Richardson Medical Center Foundation, Inc. (“Foundation”), also a defendant, is a not

for profit corporation that fund-raises for the hospital and publicizes the availability of the

hospital’s services. (Defs.’ App. at 55, 65, 78.) 

RHA hired Turner for a secretary position in June of 1999. Id. at 94. Although Turner

was officially employed by RHA, her services benefitted the Foundation. (See Defs.’ App at 56,

118-120; Pl.’s App. at 14.) Turner held this position until her termination in April of 2002. 

(Pl.’s App. at 1.) Throughout Turner’s employment, a maximum of two RHA employees

 

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worked for the Foundation. (Defs.’ App. at 69-70, 76.) Turner acted as the Foundation’s

secretary, and another employee acted as her supervisor and Director of the Foundation. Id. 

As the Foundation’s secretary, Turner prepared weekly reports reflecting the

Foundation’s progress toward achieving its goals. Id. at 6. These progress reports were to be

finished each Friday by 1:00 p.m. so the Foundation’s officers and board members, who were

volunteers, could have access to them over the weekend. Id. at 6, 65, 84. 

From June 2001 to January 2002, the Foundation did not have a director, and Turner was

the only employee working for the Foundation. See id. at 57. During that time, the Chief

Executive Officer of RHA, Ronald L. Boring (“Boring”), acted as Turner’s supervisor. (Pl.’s

App at 38; Defs.’ App. at 74-75.) However, as Turner was the only employee in the

Foundation’s office, she essentially ran the office herself with minimal supervision. (Pl.’s App

at 38; Defs.’ App. at 74-75.) Boring enjoyed working with Turner (Pl.’s App at 45), and while

he acted as her supervisor, Turner received a merit-based pay raise. See id. at 120-124. 

Additionally, Boring awarded Turner a bonus for managing the office alone. Id. at 53. 

Toward the end of 2001, the Foundation’s offices were moved from RHA’s main campus

to a building across the street from the main campus. (Defs.’ App at 76.) Shortly afterwards in

January 2002, RHA hired Mary Colston (“Colston”) to act as Director of the Foundation and

Turner’s supervisor. (Pl.’s App. at 1.) In the course of Colston and Turner’s working

relationship, difficulties developed between them. Turner e-mailed Boring and Connie Wright

(“Wright”), RHA’s Director of Human Resources, regarding the difficulties. (See id. at 117.) 

Wright attempted to address Turner’s concern in a meeting. Id. at 93. Boring did not respond to

the e-mail, id. at 51, but he was surprised that Colston had trouble working with Turner and

unhappy that Colston could not better manage the conflict. Id. at 44, 48. 

 

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Page 4 of 25

According to Defendants, the difficulties arose and Plaintiff was ultimately terminated

because Plaintiff repeatedly failed to timely finish her work in the manner requested, would not

follow the work schedule established by her employer, and spent excessive amounts of time

attending to personal visits, phone calls and e-mails during business hours. (Defs.’ Br. in Supp.

of Mot. Summ. J. at 19.) Defendants further contend that when counseled about these problems,

Plaintiff showed an unwillingness to change her behavior, and on at least one occasion, Plaintiff

ridiculed her supervisor to officers and board members of the Foundation. Id. For these reasons,

Defendants contend, Plaintiff was suspended and then terminated in accordance with the

disciplinary procedures set out in RHA’s employee handbook. Id. at 19-20.

Plaintiff denies Defendants’ account of her work performance, and asserts instead that the

difficulties arose when Colston began making derogatory racial remarks and references to

Turner. (Pl.’s Resp. at 3.) Specifically, Colston told Turner stories about work she had done

with inner-city children, calling them “ghetto children.” (Defs.’ App. at 99.) When Turner told

Colston she did not want to hear these stories, however, Colston did not mention her work with

children again. Id. at 102. Subsequently, when Turner mentioned to Colston that she was

considering taking college classes, Colston told Turner about a program in which university

classes were offered at night for African-American students who could not qualify for regular

admission. Id. at 99-100. Colston also exhibited what Turner believed to be surprise or disdain

when Colston learned that Turner shopped regularly at an upscale shopping mall, that Turner’s

son bought and sold cars on credit for a hobby, and that Turner drove a Volvo. Id. 100-101. 

Plaintiff also complains that Colston reacted with surprise when Turner completed a project or

report, became angry with Turner for “no rational reason,” and falsely accused Turner of having

a poor work performance. (Pl.’s App. at 2, 13.) 

 

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Furthermore, Plaintiff asserts that Defendants failed to follow the disciplinary procedures

set out in the employee handbook prior to her termination. (Pl.’s Br. in Resp. at 14-15.) Plaintiff

asserts that on one occasion when discussing Turner, Colston told Boring that she expected

Turner to use her “race card.” (Pl.’s App. at 55.) Plaintiff also points out that Colston was often

held accountable for the mistakes attributed to Turner. Id. at 26, 46-47. Nonetheless, Boring

allowed Colston to decide whether to terminate Turner. Id. at 48-49.

Shortly after Turner was terminated, her position was filled by Jenna Holtz, a Caucasian

female. (Pl.’s App. at 67, 79.) Less than five months later, Colston resigned. (Pl.’s Br. in Resp.

at 17.) 

In January 2003, Turner filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). (See Defs.’ App. at 137.) In her charge, Turner specified

the Foundation as her employer, listed the number of employees as 500, and identified Colston

as her supervisor. See id. On June 19, 2003, the EEOC issued Turner a Notice of Right to Sue. 

See id. at 144-145. Plaintiff then filed her Complaint on September 19, 2003, alleging race

discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of

1991, as amended, and 42 U.S.C. § 1981. Defendants now move for summary judgment on all

of Plaintiff’s claims. As Plaintiff concedes that RHA is not liable for her § 1981 claims (Pl.’s Br.

in Resp. at 11), the Court only addresses Plaintiff’s § 1981 claims against the Foundation and

Plaintiff’s Title VII claims against both Defendants. 

II. Summary Judgment Legal Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to

interrogatories and admissions on file, together with affidavits, if any, show that there is no

 

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Page 6 of 25

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party

bears the burden to inform the district court of the basis for its belief that there is an absence of a

genuine issue for trial, and identify those portions of the record that demonstrate such an

absence. Id. However, all evidence and the reasonable inferences to be drawn therefrom must

be viewed in the light most favorable to the party opposing the motion. United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962).

Once the party has made an initial showing, the party opposing the motion must come

forward with competent summary judgment evidence of the existence of a genuine fact issue. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party

defending against the motion for summary judgment cannot defeat the motion unless she

provides specific facts that show the case presents a genuine issue of material fact, such that a

reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, 477 U.S. 242,

248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not

prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th

Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions

will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto.

Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Moreover, when the non-movant fails to

provide a response identifying the disputed issues of fact, the Court is entitled to accept the

movant’s description of the undisputed facts as prima facie evidence of its entitlement to

judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988); Nordar Holdings,

Inc. v. W. Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, at *2 (N.D. Tex. Dec. 18,

1996).

 

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Page 7 of 25

Finally, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas

Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). “The party opposing summary judgment is

required to identify specific evidence in the record and to articulate the precise matter in which

the evidence supports his or her claim.” Id. A party may not rely upon “unsubstantiated

assertions” as competent summary judgment evidence. Id.

III. Jurisdictional Matters 

A. Timely Complaint

Title VII provides that a claimant has ninety days to file a lawsuit after he or she receives

a Notice of Right to Sue (“right-to-sue letter”) from the EEOC. Taylor v. Books A Million, Inc.,

296 F.3d 376, 379 (5th Cir. 2002). When parties’ dispute the date a plaintiff received a right-tosue letter, courts have presumed various receipt dates ranging from three to seven days after the

letter was mailed. Id. 

Defendants argue that Turner failed to timely file her complaint because she did not file

her complaint ninety days after her right-to-sue letter was sent. (Defs.’ Br. in Supp. of Mot.

Summ. J. at 28.) Plaintiff’s right-to-sue letter was issued and sent on June 19, 2003, ninety-two

days before Plaintiff’s Complaint was filed on September 19, 2003. (Defs.’ App. at 144.) 

However, Plaintiff asserts that she did not receive her EEOC letter until after June 25, 2003. 

(Pl.’s App. at 15.) This assertion is evidenced by the fact that the envelope that contained

Plaintiff’s right-to-sue letter has a forwarding sticker attached indicating that the letter was

forwarded on June 25, 2003. (Pl.’s App. at 107.) Thus, Plaintiff had ninety days after June 25,

2003 to file her lawsuit, and her Complaint was timely. Even if the Court adopted a minimum

presumption of three days for receipt of the right-to-sue letter, Plaintiff’s Complaint would be

timely. 

 

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 Defendants also argue that the Foundation never had the requisite number of employees to be considered 6

an “employer” under Title VII. (Defs.’ Br. in Supp. of Mot. Summ. J. at 27.) The Court does not find it necessary to

address this argument, however, as the Court determines that the Foundation was not Plaintiff’s employer. 

Although Plaintiff uses the term “common enterprise” in her briefing, this doctrine is referred to as

7

“integrated enterprise” in the relevant case law. See, e.g., Vance v. Union Planters Corp., 279 F.3d 295, 297 (5th

Cir. 2002). Therefore, the Court uses the term “integrated enterprise.”

Page 8 of 25

B. Employer Status

As Title VII prohibits discrimination in the employment context, see 42 U.S.C. § 2000e2(a), 2000e-5, generally only employers may be held liable under Title VII. See Oden v.

Oktibbeha County, Miss., 246 F.3d 458, 462 (5th Cir. 2002). Section 1981 also prohibits

discrimination, but is not limited to the employment context. 42 U.S.C. §1981(a) (“All persons

within the jurisdiction of the United States shall have the same right in every state and Territory

to make and enforce contracts . . .”). In the present case, Plaintiff asserts that the discrimination

and retaliation by Defendants, as her employers, impaired her rights relating to her employment

contract. (See Pl.’s Compl. at 2-4.) Therefore, the existence of an employment relationship

between Plaintiff and Defendants is essential to both her Title VII and § 1981 claims. 

Defendants argue that Turner was not an employee of the Foundation, and thus, the

Foundation is entitled to judgment as a matter of law. (Defs.’ Br. in Supp. of Mot. Summ. J. at

6

27-28.) In her response, Plaintiff does appear to contest Defendants’ contention that RHA was

Plaintiff’s actual employer. She does not provide any evidence showing, for example, that she

was paid by the Foundation. She does not dispute that her employment application stated she

was an employee of RHA or that her employee handbooks identify her as an employee of RHA. 

Instead, Plaintiff asserts she should be considered an employee of the Foundation because RHA

and the Foundation may be treated as an integrated enterprise. (Pl.’s Br. in Resp. at 10-11.) 

7

Plaintiff relies on Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983), for the

 

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See infra pp. 10-16. The standards for analyzing Title VII and § 1981 claims of race discrimination and 8

retaliation claims are the same. See, e.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002).

Page 9 of 25

proposition that two separate entities may be treated as an “integrated enterprise” when the two

entities have (1) interrelation of operations, (2) centralized control of labor relations, (3)

common management, and (4) common ownership or financial control. (Pl.’s Br. in Resp. at

10.) Although Trevino remains good law, it involved the application of the integrated enterprise

doctrine to private sector employees. See Trevino, 701 F.2d at 399, 404 n.10. The Fifth Circuit

Court of Appeals has declined to apply this doctrine to government employers, and thus, a

government employer may not be considered part of an integrated enterprise. Id. at 404 n.10. 

Hence, this Court cannot treat the Foundation and RHA, a governmental subunit of the State of

Texas, as an integrated enterprise. Because the Foundation cannot be considered Plaintiff’s

employer, Plaintiff’s claims against the Foundation must be dismissed as a matter of law. 

Moreover, the merits analysis below reveals that even if Plaintiff’s claims were not dismissed on

this basis, they would not survive summary judgment. 

8

C. EEOC Charge

Generally, a Title VII lawsuit may only be brought against respondents named in a

plaintiff’s EEOC charge. Nonetheless, a party not named in an EEOC complaint may be sued

under Title VII where the EEOC investigation triggered by the complaint can reasonably be

foreseen to include the unnamed party. Terrell v. United States Pipe & Foundry Co., 644 F.2d

1112, 1123 (5th Cir. 1981), vacated on other grounds, 456 U.S. 955 (1982). This is because the

primary purpose of an EEOC charge is to provide notice of the charges to the respondent and to

activate the voluntary compliance and conciliation functions of the EEOC. Id. at 1122. 

Defendants argue that RHA is entitled to summary judgment because Turner failed to

 

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Page 10 of 25

specify RHA as a party in her EEOC charge. (Defs.’ Br. in Supp. of Mot. Summ. J. at 26-27.) 

In the instant case, however, RHA was sufficiently implicated in Turner’s EEOC charge to have

reasonably triggered an investigation of its actions. Although Plaintiff named only the

Foundation in her EEOC charge, she listed the number of employees as 500 and identified

Colston as her supervisor. (See Defs.’ App. at 137.) A reasonable investigation or attempt to

initiate conciliation would have revealed that RHA, rather than the Foundation, had 500

employees and that both Turner and Colston were employees of RHA although their services

benefitted the Foundation. Moreover, RHA would be put on notice because Colston, Turner’s

named supervisor and the Director of the Foundation, was an RHA employee. Therefore,

Plaintiff may pursue Title VII claims against RHA despite her failure to name RHA in the

charge. 

IV. Plaintiff’s Title VII Claims

 A. Race Discrimination

As noted above, under Title VII it is unlawful for an employer to adversely affect the

status of an employee because of the individual’s race. 42 U.S.C. § 2000e-2(a)(1). To establish

a prima facie case of discrimination, a plaintiff may prove his claim through direct evidence,

statistical proof, or the tripartite burden-shifting test established by the United States Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Race discrimination cases

based on circumstantial evidence are subject to the McDonnell Douglas burden-shifting test. 

Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004). 

Under the McDonnell Douglas test, a plaintiff must first establish a prima facie case of

race discrimination by showing that: (1) she is a member of a protected class, (2) she was

 

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qualified for her position, (3) she suffered an adverse employment action, and (4) she was

replaced by someone outside the protected class. St Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

506 (1993). 

The prima facie case, once established, raises a presumption of discrimination, and in the

second step of the analysis, the defendant has the burden to rebut this presumption by 

articulating a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corp.,

411 U.S. at 802; Shackelford v. DeLoitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). 

This burden on the employer is one of production, not persuasion, involving no credibility

assessments. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the

employer carries its burden, the mandatory inference of discrimination created by the prima facie

case drops out of the analysis. Id. 

Plaintiff alleges that she was terminated because of her race. (Pl.’s Br. in Resp. at 12.) 

For purposes of summary judgment, Defendants concede that Plaintiff has established a prima

facie case with respect to this discrimination termination claim. (Defs.’ Reply at 8.) Defendants

have also articulated legitimate non-discriminatory reasons for Plaintiff’s termination. 

Defendants explain that Plaintiff was terminated because she failed to timely finish her work in

the manner requested, she failed to follow the work schedule established by her employer, and

she spent excessive amounts of time attending to personal matters during business hours. (Defs.’

Br. in Supp. of Mot. Summ. J. at 19.) When Plaintiff was counseled about these problems, she

demonstrated an unwillingness to change her behavior. Id. In addition, Plaintiff ridiculed her

supervisor to officers and directors of the Foundation. Id. Thus, whether Plaintiff’s claim

survives summary judgment turns on the analysis in the third stage of the McDonnell Douglas

 

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“Although Reeves was based on a motion for judgment as a matter of law, the standard is the same for

9

summary judgment.” Price, 283 F.3d at 720 n.1 (citation omitted). 

Page 12 of 25

test. 

In the third stage, the plaintiff is given the opportunity to prove that the defendant’s

proffered reason is merely a pretext for intentional discrimination. Hicks, 509 U.S. at 507-8. To

prevent summary judgment, the plaintiff must establish pretext by showing that “discrimination

lay at the heart of the employer’s decision.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th

Cir. 2002). However, if “the evidence of pretext is substantial, the plaintiff may create a genuine

issue of material fact without independent evidence that discrimination was the real reason for

the adverse employment action.” Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th

Cir. 2000) (citation omitted); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143,

148 (2000). This is because a plaintiff’s prima facie case, along with sufficient evidence that

9

the employer’s proffered reason is false, may permit a factfinder to infer that the employer

intentionally discriminated. Reeves, 530 U.S. at 148. 

Such a showing will not prevent summary judgment in every case, however, because in

some cases “although [a] plaintiff has established a prima facie case and set forth sufficient

evidence to reject the defendant’s explanation, no rational factfinder could conclude that the

action was discriminatory.” Id.; see also Price, 283 F.3d at 720. The fact “that the employer’s

proffered reason is unpersuasive . . . does not necessarily establish that the plaintiff’s proffered

reason is correct.” Hicks, 509 U.S. at 524. To find in favor of the plaintiff, it “is not enough [for

the factfinder] . . . to dis believe the employer; the factfinder must believe the plaintiff’s

explanation of intentional discrimination.” Id. at 519 (emphasis in original). The ultimate

burden of persuasion rests squarely on the plaintiff. Reeves, 530 U.S. at 143. As such, courts

 

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Page 13 of 25

may consider a number of factors in deciding whether summary judgment is appropriate,

including “the probative value of the proof that the employer’s explanation is false, and any

other evidence that supports the employer’s case.” Id. at 148-49. Summary judgment may be

particularly appropriate where “the plaintiff create[s] only a weak issue of fact as to whether the

employer’s reason was untrue and there [is] abundant and uncontroverted independent evidence

that no discrimination . . . occurred” or where “the record conclusively reveal[s] some other,

nondiscriminatory reason for the employer’s decision.” Id. at 148. 

Plaintiff offers several arguments to show that Defendants’ proffered reasons are

pretextual. Ultimately, however, the Court concludes that although Plaintiff has made out a

prima facie case and presents evidence rebutting the defendant’s explanation, no rational

factfinder could find that Plaintiff’s termination was discriminatory. The Court arrives at this

conclusion for two reasons. First, Plaintiff has created only a weak issue of fact as to whether

Defendants’ reasons are untrue. Second, the record conclusively reveals another,

nondiscriminatory reason for the employer’s decision: regardless of whether Turner actually was

a good employee, Defendants had a reasonable basis to believe Turner’s work performance was

poor. The Court finds this reason particularly significant because Title VII is not intended to

protect against “unfair or unwise business decisions,” but against discriminatory decisions. 

Nieto v. L & H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997) (citation omitted); see also Rios

v. Rossotti, 252 F.3d 375, 380 (5thCir. 2001) (“this Court affords a high degree of deference to

employers” in their business decisions); Jones v. Flagship Int’l, 793 F.2d 714, 729 (5thCir.

1986) (holding that employer was not liable for discrimination under Title VII where the

employer had a reasonable basis or good faith ground for believing in its proffered reason for

 

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terminating the plaintiff). 

Plaintiff has created only a weak issue of fact as to whether Defendants’ reasons are

untrue because there is little probative value in Plaintiff’s proof that Defendants’ explanations

are false. To demonstrate pretext, Plaintiff first submits that she received a merit-based pay raise

eight months before she was fired. (Pl.’s Br. in Resp. at 14.) Plaintiff also offers evidence that

she received positive feedback and a bonus from Boring while she was working alone at the

Foundation before Colston was hired. Id. Plaintiff alleges that Boring, who enjoyed working

with Plaintiff, was surprised that Colston experienced problems with Plaintiff and was unhappy

with the way Colston addressed these problems. Id. at 17. These facts suggests that Plaintiff

may have been a good employee eight months before she was fired. During the interim before

Colston was hired, however, Plaintiff was under minimal supervision. (Pl.’s App. at 38; Defs.’

App. at 74-75.) As such, Boring could have reasonably overlooked any of Plaintiff’s

shortcomings. In any case, these allegations do not demonstrate that during the few months

preceding Plaintiff’s termination, under new supervision and in a different office, Plaintiff

completed her work accurately and timely, followed a work schedule, and kept personal matters

out of the office. 

To further support her contention that Defendants’ proffered reasons are pretextual,

Plaintiff alleges that Defendants failed to follow disciplinary procedures as set out in the

employee handbook. Although Turner received written criticism for her poor work performance

in 2000 (Defs.’ App. at 92, 95), Turner received only verbal warnings from Colston concerning

her work quality, schedule, and personal time. (Defs.’ App. at 83-84, 86.) Regardless, “a

defendant's failure to follow its own policy is not probative of discriminatory animus in the

 

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absence of proof that the plaintiff was treated differently than other non-minority employees

because Title VII does not protect employees from the arbitrary employment practices of their

employer, only their discriminatory impact.” Upshaw v. Dallas Heart Group, 961 F. Supp. 997,

1002 (N.D. Tex. 1997). Because Plaintiff offers no evidence that she was treated differently than

other employees in this respect, Defendants’ alleged failure to follow its disciplinary procedures

is not significant evidence of pretext. 

As additional evidence that Defendants’ proffered reasons are false, Plaintiff submits that

Boring did not respond to an e-mail she sent him about her problems with Colston, that Boring

allowed Colston to decide whether to terminate Turner, and that in one instance when Colston

and Boring were discussing Turner, Colston told Boring that she expected Turner to use her

“race card.” (Pl.’s Br. in Resp. at 14, 17.) Further, Plaintiff asserts that Colston was often held

accountable for the mistakes attributed to Turner and that Colston resigned five months after

Turner was terminated. Id. at 17. Even accepting all of these allegations as true, none of them

indicate that Plaintiff completed her work accurately and timely, that she followed a work

schedule or that she did not spend an excessive amount of time attending to personal matters

while at work. 

Finally, Plaintiff offers her self-serving Declaration, in which she controverts many of

Defendants’ proffered reasons. Plaintiff claims that she consistently finished her work in a

timely and accurate manner, that she complied with her supervisor’s wishes regarding her work

schedule, and that she did not spend inappropriate amounts of time attending to personal matters

during business hours. (Pl.’s App. at 5-14.) She also claims to have been receptive to changes in

her work environment. Id. at 9. However, the self-serving statements contained within

Plaintiff’s Declaration are inconsistent with her own deposition testimony. 

 

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For example, in Plaintiff’s Declarations she claims that any “inaccuracy of the reports

was caused by Colston” because although Plaintiff “inputted all of the information [she] received

correctly, . . . [she] was not given all the information by either Colston or Boring.” Id. at 9-10. 

She also claims that she “master[ed]” Excel. Id. at 9. However, in her deposition, which is itself

full of contradictions, Plaintiff concedes that she had some difficulty with Excel. Plaintiff’s

deposition reveals that, at least on one occasion, Plaintiff’s inaccuracy caused a report deadline

to be missed. After Colston and Turner worked on numerous drafts of this particular report, the

report Turner presented to Colston remained full of mistakes, including a mistake in the key,

formatting errors, and misplaced and missing numbers: 

Q. Now, you said earlier that she hammered you unnecessarily about the 

Excel report.

A. I felt like she did.

Q. What exactly did she say?

A. Well when we began– you know, after she gave me the format and I 

entered the information to the Excel report, initially she came out to my 

desk and we talked about it. And she was showing me something on the

report where I– I spelled something out, which was our little key for the 

different columns on the report. And I abbreviated it. And she was very 

upset about that. We’re not talking about numbers. We’re talking about

something that I spelled out and she abbreviated it on the key. . . and she

mentioned something about the– We were talking about the format.

And I told her, I said, Well, I talked to Theresa in accounting 

because she’s an Excel expert, and whatever we want, she can make this 

form, you know, really look good, format it perfectly and that kind of 

thing . . . And I said she can help us, you know, just making this, you 

know, work for us once we get it– once we iron out what we want on 

the report. And she said, I’ve already talked to accounting, and there’s 

no need for you to talk to accounting . . . 

And, yes, there was some corrections to be made, but it was just 

in– it was– that was not going to be sent out to our Board because we had 

to work out the bugs– in the format . . . there were numbers that we needed 

to move around or add. There were revisions to be made but– Because 

she had– I’m trying– We did so many drafts of this report, you know, 

 

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getting it worked out to where it was going to be what we needed it to be. 

And we were just going back and forth, back and forth, back and forth. 

(Defs.’ App at 87-88.) In another account of the same incident, Plaintiff asserts that Colston said

she did not have time to go over the corrections with Turner. Id. at 90-91. Ultimately, however,

Turner concedes that she corrected the report with assistance from Theresa in the accounting

department, evidencing the fact that the corrections required were format-related, not the result

of insufficient information provided by Colston or Boring. Id. 

Furthermore, despite Plaintiff’s claim in her Declaration that she “never had a problem

cooperating with Colston and [she] was always receptive to any approach [Colston] had” (Pl.’s

App. at 12), Plaintiff’s deposition reveals several instances of insubordination on her part. For

example, despite Colston’s instruction to the contrary, Turner got help from Theresa to correct

the report. (Defs.’ App at 87, 90.) When Colston made phone calls to board members informing

them that the report would not be ready because of Turner’s mistakes, Turner confronted 

Colston, saying, 

Mary, I think it’s unfair for you to tell me that you– that, first of all, to tell me 

that you don’t have time to point out to me what I need to do to get the form 

corrected. But I overhear you talking to Board members that I made the mistake 

and because of that, we’re not going to have a report . . . I think that’s unfair. 

Id. at 90. Another time, when Colston told Turner she wanted her to take her lunches at

11:30 a.m., Turner questioned Colston. Turner recounts, 

I asked her, Well, why? Why are you changing my lunchtime because I– you 

know, I’m not even hungry until– It’s almost 2 o’clock, you know before I ever 

get hungry. And she said, Well, that’s just what time I want you to go. And I 

questioned her about it. 

(Defs.’ App at 90.) 

 

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Moreover, Plaintiff does not even attempt to deny having ridiculed Colston to officers

and directors of the Foundation. Hence, Plaintiff’s evidence does not sufficiently rebut

Defendants’ assertion that Plaintiff’s work performance was poor. 

 Regardless of whether Turner actually was a good employee, however, the record

establishes that Defendants had a reasonable basis to believe Turner’s work performance was

poor. As discussed directly above, Plaintiff challenged her supervisor’s authority a number of

times. She also required help to complete her work in Excel. Further, Plaintiff admits that she

received a significant amount of personal e-mail at her business e-mail address even though she

claims not to have read these e-mails. Id. at 113-16. As such, even assuming Plaintiff has

offered evidence rebutting the nondiscriminatory reasons offered by Defendants, this evidence is

not so persuasive as to support an inference that the real reason for Plaintiff’s termination was

discrimination. 

Plaintiff has not presented the Court with other evidence of discriminatory intent from

which a rational factfinder could conclude that the Plaintiff’s termination was discriminatory. 

Other than Colston’s “race-card” comment, Plaintiff does not cite Colston’s race-related

comments as evidence of pretext. Nonetheless, while these comments may have demonstrated

some insensitivity, including the comments regarding Colston’s experiences working with inner

city children and Colston’s discussion of a special university program for African-American

students, they do not demonstrate racial animus. Cf. Reeves, 530 U.S. at 151 (finding evidence

of discriminatory animus where a plaintiff was told he “was so old he must have come over on

the Mayflower” and “he was too damn old to do [his] job”). Accordingly, Plaintiff’s race

discrimination claim cannot survive summary judgment. 

B. Hostile Work Environment 

 

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In order to establish a prima facie case for a hostile work environment claim, a plaintiff

must show that (1) she is a member of a protected class, (2) she was subjected to harassment, (3)

the harassment was based on the protected trait, (4) the harassment affected a term or condition

of her employment, and (5) the employer knew or should have known about the harassment and

failed to take prompt remedial action. Felton v. Polles, 315 F.3d 470, 484 (5th Cir. 2002); see

also Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996). Whether an environment is

hostile or abusive depends on the totality of the circumstances, with a focus on factors such as

the frequency of the conduct, the severity of the conduct, the degree to which the conduct is

physically threatening or humiliating, and the degree to which the conduct unreasonably

interferes with an employee’s work performance. See Long, 88 F.3d at 309; Harris v. Forklift

Sys., Inc., 510 U.S. 17, 22-23 (1993). 

To survive summary judgment on a hostile work environment claim, a plaintiff must

produce evidence from which a reasonable jury could find that the alleged harassment was not

merely sporadic but that the workplace was “permeated with discriminatory intimidation,

ridicule and insult . . . sufficiently severe or pervasive to alter the conditions of [a plaintiff’s]

employment and create an abusive working environment.” Harris, 510 U.S. at 21; DeAngelis v.

El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 594 (5th Cir. 1995). Conduct that is not severe

or pervasive enough to create an objectively hostile work environment is beyond Title VII’s

purview. See DeAngelis, 51 F.3d at 594. 

Furthermore, “[t]he Supreme Court has contrasted physically threatening or humiliating

conduct, which will support a claim for hostile work environment, from a ‘mere offensive

utterance’ which will not.” Long, 88 F.3d at 309; see also Harris, 510 U.S. at 21. The Fifth

Circuit has held that the mere utterance of an epithet which engenders offensive feelings in an

 

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employee is not, taken alone, sufficient to support Title VII liability. See, e.g., Farpella-Crosby

v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996); Weller v. Citation Oil & Gas Corp.,

84 F.3d 191, 194 (5th Cir. 1996); DeAngelis, 51 F.3d at 594.

Plaintiff claims that Colston’s harassment created a hostile work environment. To

support her claim for harassment, Plaintiff alleges that Colston: (1) told Turner about her

experiences working with inner city children, referring to them as “ghetto children;” (2)

informed Turner of a university program geared toward African-American students who could

not qualify for regular admission; (3) reacted with surprise when she learned that Turner shopped

at a particular high-end shopping mall; (4) reacted with surprise when she learned that Turner

drove a Volvo; (5) reacted with surprise when she learned that, as a hobby, Turner’s son bought

and sold cars on credit; (6) reacted with surprise when Turner successfully completed a project

or report; (7) became angry with Turner for “no rational reason;” and (8) falsely accused Turner

of having a poor work performance. (Pl.’s App. at 1-2, 13.) Plaintiff concedes that when

Plaintiff told Colston she did not want to hear any more about Colston’s work with inner-city

children, Colston did not mention the topic again. (Defs.’ App. at 102.) 

Defendants contend that Plaintiff’s hostile work environment claim fails as a matter of

law because Plaintiff cannot demonstrate that the alleged harassment was so severe or pervasive

that it affected a term, condition or privilege of her employment. (Defs.’ Br. in Supp. of Mot.

Summ. J. at 22.) The Court agrees. Based on the facts alleged by Plaintiff, no reasonable jury

could find that Turner’s work environment was “permeated with discriminatory intimidation,

ridicule and insult.” Although Colston’s alleged conduct may have “engender[ed] offensive

feelings” in Turner, the conduct was not “physically threatening or humiliating.”

Plaintiff attempts to analogize her case to Walker v. Thomas, in which the Fifth Circuit

 

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found that the appellants “created a fact issue with respect to whether the racial insults they

endured were sufficiently severe or pervasive” to create a hostile work environment. 214 F.3d

615, 626 (5th Cir. 2000). However, the facts of Walker are remarkably different from those 

alleged by Plaintiff. The appellants in that case were

at various times [] subjected to: comparisons to slaves and monkeys, derisive 

remarks regarding their African heritage, patently offensive remarks regarding 

the hair of African-Americans, and conversations in which a co-worker and 

supervisor used the word "nigger." The office manager also informed them that 

the vice-president did not want the African-American women to talk to each other.

Further, . . . an African-American woman not party to [the] suit[] resigned because

she felt she could no longer tolerate the racism and discrimination at [the

appellants’ workplace]. 

Id. A comparison of these facts to those alleged by Plaintiff further clarifies that the conduct

alleged by Plaintiff was not severe or pervasive enough to satisfy the standards articulated by the

Supreme Court or the Fifth Circuit. Accordingly, Turner’s hostile work environment claims fails

as a matter of law. 

C. Retaliation

To establish a prima facie case of retaliation, Plaintiff must demonstrate that: (1) she

engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link

exists between the protected activity and the adverse employment action. Fabela v. Socorro

Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003). A plaintiff engages in protected activity

when she opposes behavior that violates Title VII. See 42 U.S.C. § 2000e-3(a). A plaintiff need

not prove that the practices she opposed were actually unlawful, but only that she had a

reasonable belief that the employer was engaged in unlawful employment practices. Byers v.

Dallas Morning News, 209 F.3d 419, 428 (5th Cir. 2000) (citing Payne v. McLemore’s

Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981)). 

 

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Defendants argue that Plaintiff cannot establish a prima facie case of retaliation because

Plaintiff did not engage in any activity protected by Title VII. (Defs.’ Reply at 16-17.) In

support of her retaliation claims, Plaintiff argues that she engaged in two acts of opposition to

practices she reasonably believed to be unlawful under Title VII. Turner first asserts that she

complained of racial discrimination when in response to Colston’s stories about her work with

inner city children, Turner told Colston to “[p]lease refrain from making reference to [her] race,

that [she] did not feel inferior, and that [she] hoped [they] could continue to work together

without [her] race being an issue.” (See Pl.’s Br. in Resp. at 21; Defs.’ Reply at 15-16; Pl.’s

App. at 2.) Although this alleged request purports to complain of racial discrimination, the Court

finds Turner’s belief that Colston’s stories violated Title VII objectively unreasonable. When

this alleged opposition occurred, the only harassment alleged to have taken place was Colston’s

storytelling about her work with inner city children. (See Pl.’s Br. in Resp. at 4.) Given the

above-stated standards for hostile work environment, see supra p. 13, no reasonable person

could have believed that Colston’s storytelling, or even use of the term “ghetto children” in this

context, could have violated Title VII. See Byers, 209 F.3d at 428-29. Therefore, Turner’s

request that Colston refrain from discussing this topic with her does not constitute a protected

activity. 

Plaintiff also alleges that she engaged in opposition a second time when she “attempted”

to make complaints to Boring and Wright by sending them an e-mail. (See Pl.’s Br. in Resp. at

21; Defs.’ Reply at 15-16.) However, the e-mail she references does not complain of racism; it

contains no discussion of racial discrimination. (See Pl.’s App. at 117.) Rather, the e-mail

contains Plaintiff’s complaints about being told when to have lunch and leave the office and her

poor relationship and communications with Colston. See id. As such, Turner’s e-mail to Boring

 

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and Wright does not constitute protected activity.

Because Plaintiff cannot demonstrate that she engaged in protected activity, she cannot

establish a prima facie case of retaliation. Hence, the Court has determined that none of

Plaintiff’s claims survive summary judgment. Defendants’ Motion for Summary Judgment is

therefore GRANTED in its entirety. 

V. Evidentiary Issues

In Plaintiff’s First Motion to Strike, Plaintiff objects to several portions of the Appendix

submitted in support of Defendants’ Motion for Summary Judgment. Specifically, she objects to

(1) statements made by Wright concerning an alleged transfer and demotion, (2) Colston’s

statement that Boring said Plaintiff would be terminated because of her poor performance, (3)

statements made by Colston concerning complaints from other departments, and (4) statements

made by Courtenay Tanner concerning thank you letters and personal phone calls. (Pl.’s Br. in

Supp. of First Mot. to Strike at 2-3.) Because the Court does not rely on these portions of

Defendants’ Appendix in its conclusion of the summary judgment motion, the Court hereby

DENIES these objections as MOOT. Plaintiff also objects to extraneous portions of depositions

being included in Defendants’ Appendix, but not referenced by Defendants in their Motion. Id. 

Because the Court finds some of these portions, particularly those in Plaintiff’s deposition,

helpful to its understanding of Plaintiff’s Declaration, the Court DENIES this objection and

exercises its discretion not to strike these portions of the record. 

Defendants also submit a Motion to Strike, in which Defendants argue that Plaintiff’s

Declaration submitted in support of her Response to the summary judgment motion should be

stricken. Defendants contend that the Declaration should be stricken because several statements

contained in the Declaration directly contradict Plaintiff’s prior deposition testimony. (Defs.’ 

 

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Mot. to Strike at 1-2.) Defendants also put forth several evidentiary objections to the

Declaration. (Defs.’ Br. in Supp. of Mot. to Strike at 28-33.) Based on Defendants’ contention

that the Declaration was submitted in bad faith, Defendants also request that the Court award

them attorneys fees for the preparation of their Motion to Strike. (Defs.’ Mot. to Strike at 2.) 

Even considering the Declaration, the outcome of this summary judgment motion is not affected. 

Therefore, the Court DENIES as MOOT Defendants’ requests that Plaintiff’s Declaration not be

considered. Moreover, the Court is not satisfied that Plaintiff’s Declaration was submitted in bad

faith or solely for the purposes of delay; so, the Court DENIES outright Defendants’ request for

attorney’s fees. 

In response to Defendants’ Motion to Strike, Plaintiff files a Motion for Leave requesting

that the Court allow her to file an oversized brief and supplemental appendix. (Pl.’s Mot. for

Leave at 1.) Although Defendants do not oppose this filing, because the Court denies

Defendants’ Motion to Strike, the Court also DENIES Plaintiff’s Motion for Leave as MOOT. 

The Clerk is directed to unfile Plaintiff’s Brief in Support of Response to Defendants’ Motion to

Strike and Appendix in Support of Plaintiff’s Response to Defendants’ Motion to Strike, both of

which were filed on January 29, 2005. 

In Plaintiff’s Second Motion to Strike, Plaintiff objects to portions of the Appendix to

Defendants’ Motion to Strike on the grounds that certain portions of this Appendix were not

contained in the Appendix to Defendants’ Motion for Summary Judgment. (Pl.’s Second Mot. to

Strike at 1.) Additionally, Plaintiff asserts that Defendants’ Motion to Strike should be stricken

because it is without merit. Id. at 2. Again, because the Court denies Defendants’ Motion to 

Strike, the Court DENIES Plaintiff’s Second Motion to Strike as MOOT. 

VI. Conclusion

 

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For the above-stated reasons, the Court GRANTS Defendants’ Motion for Summary

Judgment. The Court DENIES as MOOT a portion of Plaintiff’s First Motion to Strike, a

portion of Defendants’ Motion to Strike, Plaintiff’s Second Motion to Strike in its entirety, and

Plaintiff’s Motion for Leave in its entirety. To the extent Plaintiff’s First Motion to Strike and

Defendants’ Motion to Strike are not denied as moot, the Motions are DENIED outright. 

IT IS SO ORDERED.

Signed this 31 day of May 2005. st

_________________________________

JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

 

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