# Smith v. AZZ Inc.

> District Court, N.D. Texas · March 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10449975

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** March 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10449975

## How later opinions describe it (automated extraction)

- holding that criticism, oral threats, abusive remarks, and threats of termination did not rise to the level of adverse employment action

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

LISA SMITH, §
§
Plaintiff, §
§

v. §
Civil Action No. 4:20-cv-00375-P
§

AZZ INC., §
§
Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant AZZ Inc.’s Motion for Summary Judgment. ECF
No. 14. Plaintiff Lisa Smith failed to file a response. Having considered AZZ’s Motion for
Summary Judgment, briefing, and applicable law, the Court finds that AZZ’s Motion for
Summary Judgment should be and hereby is GRANTED.
BACKGROUND1
A. Factual Background
1. Overview of Ms. Smith’s Employment with AZZ

AZZ hired Smith for the position of Benefits Manager in February 2016 by Tara
Mackey, who was serving as the Interim Chief Human Resources Officer at that time.

1Because Smith failed to respond to AZZ’s Motion for Summary Judgment, the Court
recites the factual account as set forth in AZZ’s Motion for Summary Judgment and in AZZ’s brief
in support of its Motion for Summary Judgment, and considers the facts as undisputed. See
Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (“[T]he district court accepted as
undisputed the facts so listed in support of MBank’s motion for summary judgment. In our opinion,
the district court acted properly in doing so and, since Eversley made no opposition to the motion,
the court did not err in granting the motion as MBank’s submittals made a prima facie showing of
its entitlement to judgment.”).
Motion Ex. 1, Smith Offer Letter; Affidavit of Matt Emery (“Aff.”) at ¶ 5. In June 2016,
Matt Emery took over as Chief Human Resources Officer and became Ms. Smith’s

supervisor. Aff. at ¶ 5. In January 2017, Emery promoted Smith to Director of Corporate
Human Resources. Id. at ¶ 6. Smith continued to manage the benefits team as she had
before, and while she took on some additional duties and direct reports, approximately 85%
of Smith’s workload and duties was benefits-related. Id. Smith supervised nine human
resources employees, many of whom were benefits or compensation-related employees.
Id. at ¶ 9; Motion Ex. 2, Smith Reports Spreadsheet.

AZZ supported and invested in Smith’s professional development and success,
approving and paying for Smith to attend many developmental and industry trend
conferences, career development classes, and various leadership meetings. Aff. at ¶ 7. In
addition, Smith was part of the Extended Leadership Team Annual Meeting that is
comprised of the top 10% of AZZ’s leadership teams. Id. At the time of her employment,

Smith had two peers: Teresa Minish (Director of Human Resources for AZZ’s Industrial
platform) and Tom Henderson (Director of Human Resources for AZZ’s Electric platform),
who are, like Smith, over 40. Id. at ¶¶ 9–10.
2. Restructuring for the Benefits Function at AZZ

In May 2018, in order to reduce company costs and streamline Human Resources,
AZZ began exploring outsourcing its benefits department. Id. at ¶ 12. Emery emailed
James Noel at Lockton Dunning (“Lockton”), requesting a conversation regarding the
potential management of benefits administration by Lockton, as Lockton was already
providing AZZ with heavy benefits support administration at that time, in addition to
AZZ’s in-house benefits team. Id.; Motion Ex. 3, May 3, 2018 Email. Upon a review of

proposals from Lockton and the proposed costs associated with outsourcing the entire
benefits function, Emery estimated an annual cost savings for AZZ of $175,000. Aff. at
¶13; Motion Ex. 4, Benefits Outsourcing Business Case. Emery presented the business
case for fully outsourcing benefits to AZZ’s CEO before moving forward to finalize the
deal with Lockton. Aff. at ¶ 13.
As such, once it was approved by AZZ’s CEO, in November 2018, Emery informed

Smith that the Human Resources department was restructuring and that her position was
being eliminated. Id. at ¶ 14. In this conversation, Emery offered Smith a severance
package, which Smith rejected, replying with words to the effect, Well, I can’t say that you
did not tell me. You kept telling me to look for a job and I never did it. Id. (emphasis
added). The benefits employees who worked for Smith, Chantel Perez, Kristina Pryor,

and Donna Pena, were kept on at AZZ for a few more weeks to continue the day-to-day
benefits administration work while Lockton began the transition of services to their firm.
Id. at ¶ 15. In connection therewith, Pena was laid off and provided a severance package;
Perez and Pryor both subsequently interviewed with Lockton and were ultimately hired
by Lockton to perform benefits administration for AZZ’s account. Id.

Smith’s position, Director of Corporate Human Resources, was permanently
eliminated from AZZ, and no one has or will replace her in that position. Id. at ¶ 16. The
majority of Smith’s duties were outsourced to Lockton, and the rest were absorbed by the
remaining employees in the Human Resources department. Id. The other AZZ benefits
team positions were also permanently eliminated, and no one has replaced any of those

positions. Id. at ¶ 17.
B. Procedural Background
On February 26, 2019, AZZ was notified that Smith filed a Charge of
Discrimination with the Fort Worth Human Relations Commission (“FWHRC”) and with
the U.S. Equal Employment Opportunity Commission (“EEOC”). Motion Ex. 5,
February 26, 2019 Letter from the FWHRC and Charge. Smith’s Charge alleged that AZZ

discriminated against her based on her race and sex. Id.
On November 1, 2019, following AZZ’s submission of its position statement, the
FWHRC issued its Letter of Determination, finding that its “[e]xamination of the
evidence indicates that there is not reasonable cause to believe that [AZZ] violated the
City of Fort Worth’s Fair Employment Ordinance No. 7278, as amended; Title VII of the

Civils [sic] Rights Act of 1964, as amended; or the Texas Commission on Human
Rights Act, as amended.” Motion Ex. 6, November 1, 2019 Letter of Determination.
On December 30, 2019, the EEOC issued its Dismissal and Notice of Rights letter.
Motion Ex. 7, December 30, 2019 Dismissal and Notice of Rights Letter.
Smith filed this action on March 16, 2020, in Tarrant County, Texas. Pet., ECF

No. 1-2. AZZ removed the case to this Court based on subject matter jurisdiction. In this
lawsuit, Smith claims: (1) AZZ violated Title VII based on color and race; (2) AZZ
violated the Age Discrimination in Employment Act (“ADEA”); (3) AZZ violated Title
VII based on sex; (4) AZZ wrongfully terminated Plaintiff; and (5) AZZ violated the
Equal Pay Act. Pet. at ¶¶ 18–44. On January 14, 2021, AZZ filed a Motion for Summary

Judgment, seeking summary judgment on each of Smith’s claims. ECF No. 14. As of the
date of this Order, Smith has not responded. Therefore, AZZ’s Motion for Summary
Judgment is now ripe for review.
LEGAL STANDARD
Summary judgment is proper when the pleadings and evidence on file show “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). “[T]he substantive law will identify which facts
are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine
dispute as to any material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. The movant makes a showing that there is
no genuine dispute as to any material fact by informing the court of the basis of its motion

and by identifying the portions of the record which reveal there are no genuine material
fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); FED. R. CIV. P. 56(c).
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). When the

nonmoving party does not respond, the Court treats the facts the moving party has raised
as “undisputed for the purposes of the motion.” FED. R. CIV. P. 56(e)(2); Eversley, 843
F.2d at 174.
ANALYSIS
A. Smith’s color and age discrimination claims fail as a matter of law because
Smith failed to exhaust her administrative remedies before filing suit.

Smith only asserted claims of discrimination based on race and sex in her EEOC
charge. Since Smith has failed to exhaust her administrative remedies as to her claims based
on color and age claims, the Court finds that AZZ’s Motion for Summary Judgment should
be and is hereby GRANTED as to those claims.
To bring a suit under Title VII or the ADEA, a plaintiff must file a charge of
discrimination with the EEOC to exhaust her administrative remedies. Melgar v. T.B.
Butler Publ’g Co., Inc., 931 F.3d 375, 378 (5th Cir. 2019). “A failure to assert a claim of

discrimination in an EEOC charge and/or its lack of development in the course of a
reasonable investigation precludes the claim from later being brought in a civil suit.”
Konnethu v. Harris Cty. Hosp. Dist., 669 F. Supp. 2d 781, 792, n.37 (S.D. Tex. 2009) (citing
McClain v. Lufkin Indus., Inc., 519 F.3d 264, 274 (5th Cir. 2008)).
In this case, Smith’s EEOC Charge only made claims regarding race and sex. Brief
at ¶ 17 (citing Motion Ex. 5). Smith’s Charge included no claims regarding color or age,

despite the Charge form providing the option to include those specific claims. Id. (citing
Motion Ex. 5). Smith’s attempt to combine color with race under a single cause of action
in her Petition is improper because, in the context of discrimination suits, “[r]ace and color
are two distinct categories” and Smith only invoked the race category. Washington v.
Tarrant Cty., No. 4:18-CV-020-A, 2018 WL 1813304, at *3 (N.D. Tex. Apr. 17, 2018)

(McBryde, J.) (dismissing Plaintiff’s claim of discrimination for color because it was not
administratively exhausted, noting “[h]ere, plaintiff clearly checked only the space for ‘race’
and not the immediately adjacent space for ‘color’ on her EEOC charge form”) (internal

citations omitted). Therefore, because Smith failed to exhaust her administrative remedies
as to her claims based on color and age, the Court finds that, as to those claims, AZZ’s
Motion for Summary Judgment should be and is hereby GRANTED.2
B. Smith’s race, color, sex, and age discrimination claims fail as a matter of law
because Smith fails to allege or prove an adverse employment action, under
Title VII, taken against her.

Smith alleges AZZ discriminated against her based on her color, race, sex, and age,
by treating her differently than her colleagues and being replaced by a younger, white
male.3 These claims fail because Smith fails to allege an adverse employment action under
Title VII and her position with AZZ was eliminated entirely.
Title VII prohibits discrimination based on “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). The burden-shifting framework set forth in McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 802–04, 93 (1973), applies to ADEA and
Title VII cases based on circumstantial evidence of discrimination. Alzuraqi v. Grp. 1
Auto., Inc., 921 F. Supp. 2d 648, 663 (N.D. Tex. 2013) (citing Jackson v. Cal–Western

2In Texas—a deferral state—a plaintiff alleging claims under Title VII or the ADEA must
file an EEOC charge within 300 days of the alleged discriminatory action. 42 U.S.C. § 2000e–
5(e); 29 U.S.C. § 626(d)(2); Champlin v. Manpower Inc., No. 4:16-CV-00421, 2018 WL 572997,
at *3 (S.D. Tex. Jan. 24, 2018) (quoting Tyler v. Union Oil Co. of California, 304 F.3d 379, 384,
391 n.3 (5th Cir. 2002) (internal citation omitted)). Therefore, Smith’s claims based on color
and age are time-barred because more than 300 days have passed since her position was eliminated
in November of 2018.

3Pet. at ¶¶ 22–23, 28, 29–30, 34–35, 42, 44.
Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)). Under this framework, for her Title
VII claims, a plaintiff must show that she: (1) is a member of a protected class; (2) was

qualified for her position; (3) was subject to an adverse employment action; and (4) was
replaced by someone outside the protected class, or, in the case of disparate treatment,
show that others similarly situated were treated more favorably. Okoye v. Univ. of Texas
Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001).
Once a plaintiff has made a prima facie case, the defendant has the burden of
producing a legitimate, nondiscriminatory reason for the adverse employment action.

Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 347 (5th Cir. 2013). The burden then
shifts back to the plaintiff to show by a preponderance of the evidence that the employer’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143, (2000). Specifically, the “plaintiff must substantiate [her] claim of pretext
through evidence demonstrating that discrimination lay at the heart of the employer’s

decision.” Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002). To carry this
burden, the plaintiff must produce substantial evidence to rebut each nondiscriminatory
reason articulated by the defendant. Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 233 (5th Cir. 2015); Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).
Alternatively, the plaintiff can produce evidence to show that she was clearly better

qualified than the person selected for the position. Churchill v. Texas Dept. of Crim.
Justice, 539 F. App’x 315, 318 (5th Cir. 2013); Price, 283 F.3d at 723.
As the Fifth Circuit has explained:
If the plaintiff can show the employer’s asserted justification is false, this
showing, coupled with a prima facie case, may permit the trier of fact to
conclude that the employer discriminated against the plaintiff without
additional evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 148, 210 S. Ct. 2097, 147 L.Ed. 2d 105 (2000). However, such a
showing will not always be enough to prevent summary judgment, because
there will be cases where a plaintiff has both established a prima facie case
and set forth sufficient evidence to reject the defendant’s explanation, yet “no
rational factfinder could conclude that the action was discriminatory.” Id.
Whether summary judgment is appropriate depends on numerous factors,
including “the strength of the plaintiff’s prima facie case, the probative value
of the proof that the employer’s explanation is false, and any other evidence
that supports the employee’s case and that properly may be considered.” Id.
at 148–49, 120 S. Ct. 2097.

Price, 283 F.3d at 720.
1. Smith’s claim that she was treated differently than her colleagues fails
because the alleged conduct does not constitute an adverse employment
action under Title VII.

Without proving an adverse employment action, a Title VII plaintiff cannot make
the necessary prima facie case of discrimination or retaliation. McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). In establishing a prima facie case of
discrimination, adverse employment actions are defined as an “ultimate employment
decision,” such as “hiring, granting leave, discharging, promoting, or compensating.” Id.
at 559. “Allegations of unpleasant work meetings, verbal reprimands, improper work
requests, and unfair treatment do not constitute actionable adverse employment actions.”
Alzuraqi, 921 F. Supp. 2d at 664 (citing King v. Louisiana, 294 Fed. App’x. 77, 85 (5th
Cir. 2008)) (citation omitted).
Smith alleges in her Petition that she was “treated differently” than her lateral
colleagues and her “white male colleagues were treated more favorably.” Pet. at ¶¶ 22–
23, 29–30, 34–35, 42. Specifically, Smith alleges she was not allowed to participate in
management meetings or voice her opinion, and when she did voice her opinion, it was

disregarded, belittled, or received resistance. Id. In addition, Smith alleges her white male
colleagues were treated more favorably, allowed to participate in meetings, allowed to
provide opinions—which were not received with a negative attitude—and did not receive
push back on their opinions and participation. Id. These allegations represent unfair
treatment, which do not constitute actionable adverse employment actions. Breaux v. City
of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (holding that criticism, oral threats, abusive

remarks, and threats of termination did not rise to the level of adverse employment action).
The Court finds that Smith’s allegations constitute unfair treatment, not actionable adverse
employment actions. For these reasons, AZZ’s Motion for Summary Judgment should be
and is hereby GRANTED as to Smith’s disparate treatment claims.
2. Smith’s Title VII claim that she was replaced by a younger, white male fails
because the uncontroverted record shows Smith’s position was eliminated
entirely.

Smith claims a violation under Title VII because she was replaced by a younger,
white male. Pet. at ¶ 28. The uncontroverted record reflects this younger, white male to be
Trey Quinn. Brief at ¶ 31 (citing Motion Ex. 8, Interrogatory Response 7; Motion Ex. 6).
However, Smith’s contention fails because she was not replaced by Quinn. Id. (citing Aff.
at ¶ 17). Smith’s position was eliminated as the result of outsourcing the entire benefits
administration function, which also resulted in the elimination of the positions of the three
other individuals—Chantel Perez (Hispanic, female), Kristina Prior (White, female), and
Donna Pena (White, female)—working under Smith in the benefits administration function
who also belong to Smith’s protected classes. Id. at ¶ 15; Motion Ex. 6. For these reasons,

AZZ’s Motion for Summary Judgment should be and is hereby GRANTED as to Smith’s
claim that AZZ replaced her position with a younger, white male.
C. Smith’s wrongful termination claims under the ADEA and Title VII fail as a
matter of law because Smith’s position was eliminated at the time of her
termination and never filled.

Smith alleges that AZZ wrongfully terminated her based on her age and race. Pet.
at ¶¶ 38–42. However, these claims fail because Smith’s position was eliminated entirely
at the time of her termination and it has not been filled since.
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). To establish a prima facie age discrimination
case under the ADEA for wrongful termination, a plaintiff must show that: (1) she was
discharged; (2) she was qualified for the position; (3) she was within the protected class at
the time or discharge; and (4) she was either replaced by someone outside the protected
class, replaced by someone younger, or otherwise discharged because of her age. Jackson,
602 F.3d at 378. Under Title VII, to establish a prima facie case of wrongful termination

based on discrimination, a plaintiff must show (i) she belonged to the protected class (at
least forty years of age); (ii) she was otherwise qualified for her position; (iii) she was
discharged; and (iv) her employer subsequently hired people outside the protected class to
fill the position, or she was otherwise discharged because of her protected class. Moore v.
Potter, 716 F. Supp. 2d 524, 534 (S.D. Tex. Dec. 17, 2008) (citing Berquist v. Wash. Mut.

Bank, 500 F.3d 344, 349 (5th Cir. 2007)) (citations omitted); 29 U.S.C. § 631(a).
In this case, Smith was discharged from her position as Director of Corporate
Human Resources because the position was eliminated altogether, and no individual has
been hired for that nonexistent position. Brief at ¶ 44; Aff. at ¶¶ 16–17. The uncontroverted
record establishes that Quinn never assumed Smith’s eliminated position. Brief at ¶ 44;
Aff. at ¶¶ 16–17. Even if Quinn had replaced Smith in her since eliminated role, Smith

would still have no wrongful termination claim under the ADEA because Quinn is over
forty years-old, therefore, a member of the same protected class as Smith. Brief at ¶ 44.
For these reasons, AZZ’s Motion for Summary Judgment should be and is hereby
GRANTED as to Smith’s wrongful termination claims under the ADEA and Title VII.
D. Smith’s Equal Pay Act claim fails as a matter of law because the
uncontroverted record proves she was paid a higher salary than her male peer.

Smith alleges that AZZ discriminated against her in violation of the Equal Pay Act
(“EPA”) by paying her less than her counterparts, lower level employees, and the
individual that replaced her. Pet at. ¶¶ 43–44. Smith’s EPA claim fails because she fails to
prove the required elements of an EPA claim because the uncontroverted record proves she
was actually paid more than her male peer.
Under the EPA, a plaintiff must show that “(1) her employer is subject to the Equal
Pay Act; (2) she performed work in a position requiring equal skill, effort, and

responsibility under similar working conditions; and (3) she was paid less than the
employee of the opposite sex providing the basis of comparison.” Badgerow v. REJ
Properties, Inc., 974 F.3d 610, 616-17 (Sth Cir. 2020) (citing Chance v. Rice Univ., 984
F.2d 151, 153 (Sth Cir. 1993)); see 29 U.S.C. § 206(d)(1). Here, Smith fails to plead or
provide sufficient evidence supporting the first two elements under the EPA. Even if Smith
properly pled the first two elements, Smith had only two peers at her level during her
employment with AZZ: Teresa Minish (Director of Human Resources for AZZ’s Industrial
platform) and Tom Henderson (Director of Human Resources for AZZ’s Electric platform)
who, like Smith, are over the age of forty. Brief at 7; Aff. at 9-10. Contrary to Smith’s
claim, her salary was 22% higher than her male peer, Tom Henderson’s salary. Brief at
4 36; Aff. at 9] 9-10. For these reasons, AZZ’s Motion for Summary Judgment should be
and is hereby GRANTED as to Smith’s EPA claim.
CONCLUSION
For the foregoing reasons, the Court finds that AZZ Inc.’s Motion for Summary
Judgment (ECF No. 14) should be and is hereby GRANTED. Accordingly, Plaintiff's
claims against AZZ are DISMISSED with prejudice.
SO ORDERED on this 23th day of March, 2021.
MaI_~[ Frettna
A
Mark T. Pittman
UNITED STATES DISTRICT JUDGE

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10449975. Public record. Not legal advice.