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Gorman v. Verizon Wireless Tex., L.L.C.

United States Court of Appeals, Fifth Circuit

May 28, 2014

AMY R. GORMAN, Plaintiff - Appellant
v.
VERIZON WIRELESS TEXAS, L.L.C.; VERIZON WIRELESS SERVICES, L.L.C.; GTE MOBILNET OF SOUTH TEXAS, LIMITED PARTNERSHIP, Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas.

For Amy R. Gorman, Plaintiff - Appellant: Sufi Nasim Ahmad, Attorney, Cline Ahmad, The Woodlands, TX; Joseph Y. Ahmad, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, P.C., Houston, TX.

For Verizon Wireless Texas, L.L.C., Verizon Wireless Services, L.L.C., Gte Mobilnet of South Texas, Limited Partnership, Defendants - Appellees: Ruthie Nelson White, William Robinson Stukenberg, Jackson Lewis, L.L.P., Houston, TX.

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

OPINION

Page 166

E. GRADY JOLLY, Circuit Judge:

Amy Gorman contends she was discharged by Verizon in retaliation for complaining of discrimination and harassment, in violation of the Texas Commission on Human Rights Act. She filed this suit in Texas state court. Verizon removed it to federal court on the basis of diversity. Thus Texas law must apply in this appeal; which leads us to the question of whether the exhaustion of administrative remedies under Texas law is jurisdictional or merely a condition precedent tat may be forgiven. We hold that the exhaustion requirement here--the requirement to receive a right to sue letter before filing suit--is only a condition precedent. Thus, when we consider the appeal on its merits, we find no merit, based on the absence of causation between Gorman's complaints

Page 167

and her discharge; the decisionmaker had no knowledge of the alleged protected activity claimed by Gorman. Although the Verizon executive terminating her had no knowledge of her complaint, she did have knowledge of a complex commission-generating scheme in which Gorman was implicated and from which she profited.

I.

Amy Gorman worked in government sales for the related corporate entities Verizon Wireless Texas, L.L.C., Verizon Wireless Services, L.L.C., and GTE Mobilnet of South Texas, L.P. (collectively, " Verizon" ). Gorman supervised a team of six. Her immediate superior was Darryl Williams, who also worked in government sales. Still further above her was her supervisor Jason Smith, who oversaw business sales.

Gorman alleged that Smith discriminated against her on the basis of her sex. In the district court's words, she alleged that, " Smith consistently treated her worse than her male colleagues. For example, she alleges that he excluded her from meetings, social events, networking functions, and dinners; excluded her from important business emails and other communications; and, in general, treated her in a more derogatory fashion, including cursing and name-calling." Gorman v. Verizon Wireless Texas, LLC, No. 4:11-CV-729, 2013 WL 4520187, at *1 (S.D. Tex. Aug. 24, 2013) (internal quotation marks and citations omitted).

In September 2009, Smith advised Gorman she should consider taking a different, perhaps less prestigious position that did not involve managing a team. This advice was prompted because Gorman and her team had failed to meet sales quotas throughout 2009. Gorman initially agreed that she would move to this position. Before changing positions, however, Gorman met with the Verizon human resources department. There, she complained about Smith's allegedly discriminatory conduct. This complaint is the protected activity that she engaged in, and which she claims resulted in her eventual termination.

Gorman's meeting with human resources led her to decide not to take the new job after all and to remain in her current job. Several months later, in December or January 2010, Gorman voluntarily accepted a third position at Verizon, which could have resulted in a salary cut, depending on her performance.

Verizon acted on Gorman's complaints about Smith. Deeone McKeithan of Verizon's human resources department met with Smith to investigate Gorman's allegations. McKeithan did not mention Gorman as the source of the complaint. McKeithan asked questions about several of the two hundred employees Smith had under him, and one of the employees discussed was Gorman. McKeithan concluded there was no basis to believe Smith had discriminated against or harassed anyone.

Around the time of the complaint, in October 2009, Gorman became enmeshed in a manipulative scheme by Verizon employees to enlarge their commissions at Verizon's expense. This misdeed came to light in March 2010, when the Texas Department of Criminal Justice (" TDCJ" ), the state agency customer who benefited indirectly from the employee scheme, contacted Verizon about an invoice it believed it had mistakenly received. This complaint set off an investigation that revealed a scheme dating back to October 2009. It implicated Gorman, Gorman's supervisor Williams, Gorman's subordinate Robert Whittleman, and ...


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