Cunningham v. Advantix Digital LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TAYLORE CUNNINGHAM, )

)

Plaintiff, )

)

VS. ) CIVIL ACTION NO.

)

ADVANTIX DIGITAL, LLC F/K/A ) 3:19-CV-0210-G

ADVANTIX INTERNET MARKETING, )

LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Before the court are the defendant’s motion for summary judgment (docket

entry 21) and the defendant’s objections to plaintiff’s summary judgment evidence

(“Objections”) (docket entry 56). For the reasons set forth below, the defendant’s

motion for summary judgment is GRANTED, and the defendant’s objections are

DENIED as moot.

I. BACKGROUND

A. Factual Background

The plaintiff Taylore Cunningham (“Cunningham”) was hired as an account

manager by the defendant Advantix Digital, LLC (“Advantix”) in February or March

of 2016, and began working at Advantix on approximately March 9, 2016.

Defendant’s Brief in Support of Motion for Summary Judgment (“Motion”) (docket

entry 22) at 2-4. Advantix “provides on-line marketing and consulting services. The

company assists clients with on-line advertising strategies and services, including

social-media presence, paid-search advertising [], search-engine optimization, online

reputation management, and additional related services.” Id. at 1. Advantix’s senior

management is comprised of Peter Handy (“Handy”), Ed Ferreri (“Ferreri”), and

Amine Bentahar (“Bentahar”). Id. at 1-2.

In February, 2016, before Cunningham was hired, Advantix engaged the

recruiting firm Xtreme Consulting (“Xtreme”) to assist Advantix in hiring a new

account manager. Id. at 2. Xtreme referred Max Williams (“Williams”) to Advantix.

Id. Advantix offered Williams the job of account manager and Williams accepted.

Id. at 3. Williams’s compensation package included “an annual base salary of

$85,000 and a monthly commission opportunity of $20% of his accounts’ monthly

gross profit that exceeded $10,000.” Id. at 2-3. Williams worked at Advantix until

November of 2016. Plaintiff’s Supplemental Brief in Opposition of Defendant’s

Motion for Summary Judgment (“Supplemental Response”) (docket entry 62) at 17.

Shortly after Advantix hired Williams, Xtreme sent an unsolicited email

referral to Advantix, proposing that Advantix hire Cunningham as well. Motion at 3.

Near the bottom of this email appear the words: “$75K base.” Appendix in Support

of Defendant’s Brief in Support of Motion for Summary Judgment (“ Defendant’s

Appendix”) (docket entry 23) at APP. 6. Advantix was initially hesitant to hire

Cunningham as an account manager because the company had just hired Williams.

Motion at 3. However, after negotiating Cunningham’s compensation package with

Xtreme, Advantix agreed to hire Cunningham, and Cunningham “agreed [to] a

compensation package with a $72,000 base salary and a monthly commission

opportunity of 20% of [Cunningham’s] accounts’ monthly gross profit that exceeded

$9,000.” Id. at 4. After Cunningham was hired, someone at Xtreme told

Cunningham that the reason that Cunningham “was given a lower starting pay than

Max Williams” was that “[Williams] had a family and that Advantix thought he

deserved the higher pay.” Appendix in Support of Plaintiff’s Supplemental Brief in

Opposition of Defendant’s Motion for Summary Judgment (“Plaintiff’s

Supplemental Appendix”) (docket entry 63) at APP. 44; Supplemental Response at

6.

The general duties of an account manager [at Advantix] are

to generate and manage new client accounts. Managing

client accounts requires the account manager to oversee all

aspects of an account, which includes, among other things,

relationship management, performance reporting, identifying

client needs, proposing solutions, and interfacing with the

Advantix operations team to ensure that processes are in

place to deliver services promised to a client. The account

manager’s business generation duties require the employee to

be out of the office and meeting with current or prospective

clients to negotiate and secure new contracts for services.

Motion at 2. Advantix asserts that Cunningham performed these duties while

working at Advantix. Id. at 4. Cunningham “was permitted to work from home or

away from the office, and she frequently did so. The only time Cunningham was

required to be in the office was for weekly status meetings.” Id.

In the summer of 2016, Cunningham began to approach members of

Advantix’s senior management—namely Handy, Bentahar, and Ferreri—to address

the fact that Williams was getting paid $1,000 more per month than Cunningham

was. See Defendant’s Appendix at APP. 116, 122. Advantix then raised

Cunningham’s monthly base salary, on a temporary basis, by $1,000, effective

October 2016. Motion at 4. Cunningham’s annual base salary thus increased from

$72,000 to $84,000, and the raise became permanent in January 2017. Id. at 5. In

2017, Cunningham’s total compensation (including commissions) was $126,040.39,

and for the period between March 2017 and December 2017, Cunningham was the

second highest paid employee at Advantix. Id.

Advantix terminated Cunningham effective either December 15, 2017, Id., or

December 18, 2017, Supplemental Response at 7. The decision to terminate

Cunningham was made collectively by Handy, Ferreri, and Bentahar. Motion at 5.

The parties dispute the reasons for Cunningham’s termination.

Advantix asserts that Cunningham was terminated for a combination of

misconduct and insubordination. Id. According to the declaration of Ferreri,

“[t]hroughout her employment, Cunningham treated coworkers and management in

a condescending and demeaning manner[,]” and “Advantix persistently received

complaints from Cunningham’s coworkers that she had been rude or inconsiderate.”

Defendant’s Appendix at APP. 3. Additionally, according to Ferreri, “many

coworkers informed Advantix management they would not work with

[Cunningham].” Id.

Furthermore, Advantix asserts that “Cunningham viewed herself as an

independent business and . . . felt she was not required to observe instructions from

management.” Motion at 6. Specifically, in one instance, Cunningham told

“Advantix management that any communications and work instructions to” Taylor

Owen “‘needed’ to go through [Cunningham].” Id.; Defendant’s Appendix at APP.

4. Although Owen’s job as an account manager required her to report to

Cunningham, Owen did not report exclusively to Cunningham. Motion at 6;

Defendant’s Appendix at APP. 4. Additionally, at some point before December

2017, Cunningham indicated to Advantix management that she would like to

become an independent contractor and continue to work with Advantix in that

capacity, rather than as an employee. Motion at 6.

Then, on December 7, 2017, several communications between Cunningham

and Advantix management occurred which, according to Advantix, prompted the

company to terminate Cunningham. First, on the morning of December 7, 2017,

Advantix’s Director of Performance Marketing Sinead Hultman sent an email to

Cunningham and others in which Hultman stated that an Advantix employee named

Jayson would begin to service a particular account, of which Cunningham was the

“Account Director.” Defendant’s Appendix at APP. 225-226; see Motion at 6-7. In

response, Cunningham stated: “As Account Director and the only one with the

relationship with the client, I am making the executive decision to keep this account

assigned to” a different Advantix employee. Defendant’s Appendix at APP. 225. At

the time that this email exchange occurred, Cunningham was unaware that Hultman

had the authority to make staffing decisions on particular accounts. Id. at APP. 149-

50. Cunningham, however, did not have the authority to dictate terms to Hultman,

who was a director-level manager. Motion at 7.

In a second exchange between Cunningham and Advantix management on

December 7, 2017, Cunningham sent her supervisor John Bailey a text message in

which Cunningham stated that she had “retracted all contracts” until the “hierarchy

of [her] accounts” was understood. Defendant’s Appendix at APP. 227.

Cunningham stated in her deposition that by this text message, she meant that

“[c]ontracts had been sent back to [her] for revision, and [she] wasn’t going to press

the client until [she] was confident in how that would be handled.” Id. at APP. 153.

Bailey responded to Cunningham’s text message stating: “I can’t help you unless I

have a contract signed.” Id. at APP. 228. To this, Cunningham replied:

I can’t in good faith send that contract out knowing there’s

a chance it won’t be handled to my liking. Honestly I think

you [Bentahar] and I need to have a meeting about me going

1099 [(i.e., independent contractor)] b[ecause] I am not

willing to lose another account and relationship due to

insubordination or lack of performance and results. I’m at

the point where I need autonomy when it comes to my

money otherwise I’m not doing it. Hope you understand.

Id.; see id. at APP. 156 (clarifying that “going 1099” refers to becoming an

independent contractor).

Later that day, Bailey sent a text message to Cunningham, stating: “Get your

contracts signed tonight.” Id. at APP. 229. Bailey also informed Cunningham that

they would be meeting with Bentahar the following afternoon. Id. Cunningham

declined, stating: “No thank you. I have too much going on in my life to be played.

The contracts will get signed when I have autonomy over them.” Id. Cunningham

explained that she would not be able to meet the following day because she was

taking the day off to care for her brother, and concluded by informing Bailey that if

she had “one more issue at Advantix[,]” she would be “taking all of [her] business

elsewhere[.]” Id. at APP. 230.

Among the contracts that Cunningham retracted were contracts with (1) Dr.

Keith Butler, (2) Expert Surgical, and (3) Nobilis. See Supplemental Response at 7-

8. Five days after Cunningham informed Bailey that she had “retracted all contracts”

and that the contracts would not get signed until she had “autonomy over them,” on

December 12, 2017, Cunningham sent an email to Bailey and other members of

Advantix management providing an update on all of her accounts that were then “in

contract stage.” Id. at 8; Plaintiff’s Supplemental Appendix at APP. 54.

Cunningham noted that some action was being taken in each of the accounts then in

the contract stage. Plaintiff’s Supplemental Appendix at APP. 54

Sometime thereafter, Bentahar sent Cunningham a text message inquiring

about the contracts that Cunningham was “holding until” she had “full autonomy,”

and asking whether Advantix would receive those contracts. Id. at APP. 55.

Cunningham responded on December 15, 2017, stating: “Oh no sorry for any

misunderstanding but I’m not withholding any [contract]s due to autonomy I sent an

update on all contracts out earlier this week.” Id.; Supplemental Response at 12.

Shortly thereafter, Cunningham was terminated. In her declaration,

Cunningham states that on December 18, 2017, she met with Bailey and Bentahar,

who informed her that she was being terminated due to insubordination. Plaintiff’s

Supplemental Appendix at APP. 48; Supplemental Response at 7. Members of

Advantix’s management, on the other hand, contend that Cunningham was either

terminated on December 15, 2017 (Plaintiff’s Supplemental Appendix at APP. 12),

or that Cunningham was terminated effective December 15, 2017 (Defendant’s

Appendix in Support at APP. 3). Cunningham was given no prior notice of her

termination. Supplemental Response at 5. Cunningham asserts that “[Advantix]

had the practice of granting male employees multiple chances to correct performance

and regularly allowed male employees time to seek other employment before being

let go from Advantix.” Id. Cunningham also maintains that she was terminated by

Advantix due to her sex, and “in retaliation for complaining about [Advantix]’s

sexually discriminatory pay practices, sexual harassment, and sexually discriminatory

and hostile work environment.” Supplemental Response at 6, 9.

Cunningham claims that during her employment at Advantix, she was

subjected to comments from her supervisors and a coworker that made her “very

uncomfortable at the office and interfered with her ability to properly carry out her

duties on the job.” Id. at 14. Specifically, Cunningham alleges that she received

“demeaning comments based on [her] sex[.]” Id. at 13. Cunningham lists these

comments in her response as follows:

(1) comments about Plaintiff’s looks by Mr. Handy and

others; (2) Mr. Bentahar compl[i]mented Cunningham and

said, “You’re a pretty girl. You’re charismatic. Doctors love

to schmooze with you”; (3) Mr. Handy stated, “My auto

dealers would love if you and your friend came up there

in . . . that pink dress that your friend was wearing the other

day”; and (4) on several occasions, a coworker told

Cunningham that “you just sit there and look pretty” or

similar words.

Plaintiff’s Brief in Opposition of Defendant's Motion for Summary Judgment

(“Response”) (docket entry 49) at 12.

Cunningham also claims that during her employment at Advantix, she was

sexually harassed by a client named Mike Lopez (“Lopez”). Supplemental Response

at 9. On one occasion, Cunningham showed Bentahar text messages between Lopez

and Cunningham, in which Lopez said “stop being a b [sic.] and come have a drink

with me . . . [y]ou’ve been sketchy as fuck.” Id. at 15. Cunningham then informed

Bentahar that Lopez had invited her to some parties that Lopez was attending;

Cunningham further stated that she would “do the song and dance with [Lopez] for

this weekend only[.]” Plaintiff’s Supplemental Appendix at APP. 58. Bentahar

replied to Cunningham, stating: “If you need backup I’m here . . . [o]r will send him

Jeff” (i.e., another male Advantix employee). Id. at APP. 59; Supplemental Response

at 15.

Cunningham insists that she communicated to Handy and Bentahar, on at

least twelve occasions, that she did not want to sign Lopez as a client and that Lopez

sexually harassed her. Supplemental Response at 15; Plaintiff’s Supplemental

Appendix at APP. 45-46. At her deposition, Cunningham identified several instances

in which Lopez allegedly harassed Cunningham during her employment at Advantix.

Namely, Cunningham asserted that Lopez harassed her: (1) at the National Auto

Dealers Association (“NADA”) convention in New Orleans, which occurred in

January 2017; (2) at a business development event in Scottsdale, Arizona, which

occurred in February 2017; and (3) through various unspecified phone calls and text

messages. See Motion at 23; Defendant’s Appendix at APP. 169-180. Cunningham

also attended a lunch with Lopez and several other Advantix employees on March 3,

2017. Plaintiff’s Supplemental Appendix at APP. 46. When asked at her deposition

whether she had had further interactions with Lopez on March 3, 2017 after the

lunch, Cunningham stated: “I don’t remember[.]” Defendant’s Appendix at APP.

176. In the declaration appended to her response, however, Cunningham states that

on the night of March 3, 2017, she was pressured by Lopez and Jessi Rayhill

(another Advantix employee) to “go out with them,” despite Cunningham’s

unwillingness to do so. Plaintiff’s Supplemental Appendix at APP. 46. Cunningham

asserts that she met with Lopez and Rayhill at around 11 p.m. that evening, and can

not “recall much of what happened after [her] first hour there.” Id. Cunningham

further states that “[t]he next thing [she] remember[s] is waking up in [Lopez]’s

hotel room, partially unclothed, feeling violated and sick.” Id. Cunningham did not

know how she got to Lopez’s hotel room, and she believes that she “was sexually

assaulted, violated, and/or taken advantage of.” Id.

In May of 2017, at some point on or before May 5, Lopez declined to renew

his contract with Advantix. Supplemental Response at 9-10; see Plaintiff’s

Supplemental Appendix at APP. 47. Cunningham asserts that she was blamed for

losing Lopez’s account, and that her superiors demanded that she win back Lopez’s

business. Supplemental Response at 10. On May 5, 2017, Handy sent Cunningham

a text message asking her to explain why Lopez had cancelled the account. See id. at

15; Plaintiff’s Supplemental Appendix at APP. 56. In response to this message,

Cunningham stated: “I said from the get go I didn’t want to be [Lopez’s] direct

contact [because of] the way he ran all over me in the past[.]” Supplemental

Response at 15; Plaintiff’s Supplemental Appendix at APP. 56. In her declaration,

Cunningham states: “Mike [Lopez]’s sexual harassment towards me continued until

he cancelled his account in May 2017.” Plaintiff’s Supplemental Appendix at APP.

46. Cunningham further states: “[i]n November and December 2017, I told

[Bentahar] about [the] offensive behavior and treatment by [Lopez] and others in

the office.” Id. at 47. Advantix did not conduct an investigation based on

Cunningham’s complaints. Id.

B. Procedural Background

Cunningham filed her original complaint against Advantix on January 25,

2019. Plaintiff’s Original Complaint and Jury Demand (“Complaint”) (docket entry

1). Cunningham asserts five claims against Advantix: (1) sex-based discrimination, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(“Title VII”); (2) retaliation, in violation of Title VII; (3) sexual harassment, in

violation of Title VII; (4) unequal compensation, in violation of the Equal Pay Act

(“EPA”), and; (5) misclassification, in violation of the Fair Labor Standards Act

(“FLSA”). See Supplemental Response.1

Advantix filed the instant motion for summary judgment, brief in support, and

appendix in support on October 28, 2019. See Defendant’s Motion for Summary

Judgment (docket entry 21); Motion (docket entry 22); Defendant’s Appendix

(docket entry 23). Three days before the plaintiff’s deadline to respond to the

defendant’s motion, on November 15, 2019, the plaintiff filed a motion to continue

the deadline to respond until January 14, 2020, due to the plaintiff’s inability to

timely depose several of the defendant’s employees: Amine Bentahar, Peter Handy,

John Bailey, and Ed Ferreri. See Plaintiff’s Motion for Continuance (docket entry

27) at 1-2. The court granted the plaintiff’s motion for continuance, thus affording

the plaintiff the opportunity to respond to the defendant’s motion for summary

judgment no later than January 14, 2020. Order (docket entry 35) at 2.

The plaintiff deposed Messrs. Ferreri, Handy, and Bentahar on January 6, 8,

and 10, 2020, respectively. See Appendix in Support of Plaintiff’s Brief in Support of

Response to Defendant’s Motion for Summary Judgment (“Plaintiff’s Appendix”)

(docket entry 50) at 1. The plaintiff then filed her response to the defendant’s

motion, her brief in support, and her appendix in support on January 14, 2020. See

1 In her complaint, the plaintiff presents her claims in a different order.

See Complaint. For the sake of clarity, however, the court will address the plaintiff’s

claims in the order in which the parties address the claims in the motion for

summary judgment and response thereto.

Plaintiff’s Response and Brief in Opposition of Defendant’s Motion for Summary

Judgment (docket entry 48); Response (docket entry 49); Plaintiff’s Appendix

(docket entry 50). The defendant filed its reply on January 28, 2020. Defendant’s

Reply in Support of Motion for Summary Judgment (docket entry 55).

On the same day, the defendant filed objections to some of the evidence in the

plaintiff’s appendix in support of her response to the motion for summary judgment.

See Defendant’s Objections to Plaintiff’s Summary Judgment Evidence (“Objections”)

(docket entry 56).

Also on January 28, 2020, the plaintiff filed a motion to compel the

deposition of Amine Bentahar. Plaintiff’s Motion to Compel Deposition of Amine

Bentahar and Brief in Support (docket entry 53). The court granted the plaintiff’s

motion to compel, and afforded the plaintiff the opportunity to submit supplemental

briefing no later than March 6, 2020. Order (docket entry 60) at 3. On March 6,

2020, the plaintiff filed her supplemental response brief (docket entry 62), and her

supplemental appendix in support (docket entry 63). The defendant elected not to

file a supplemental reply in support of its motion for summary judgment.

Accordingly, the defendant’s motion for summary judgment is now ripe for

determination.

II. ANALYSIS

A. Summary Judgment Legal Standard

Summary judgment is proper when the pleadings, depositions, admissions,

disclosure materials on file, and affidavits, if any, “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), (c)(1).2 A fact is material if the governing substantive

law identifies it as having the potential to affect the outcome of the suit. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue as to a material fact is

genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id.; see also Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,

489 (5th Cir. 2001) (“An issue is ‘genuine’ if it is real and substantial, as opposed to

merely formal, pretended, or a sham.”). To demonstrate a genuine issue as to the

material facts, the nonmoving party “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Electric Industrial

Company v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). The nonmoving

party must show that the evidence is sufficient to support the resolution of the

material factual issues in her favor. Anderson, 477 U.S. at 249 (citing First National

Bank of Arizona v. Cities Service Company, 391 U.S. 253, 288-89 (1968)).

When evaluating a motion for summary judgment, the court views the

evidence in the light most favorable to the nonmoving party. Id. at 255 (citing

Adickes v. S.H. Kress & Company, 398 U.S. 144, 158-59 (1970)). However, it is not

incumbent upon the court to comb the record in search of evidence that creates a

genuine issue as to a material fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th

2 Disposition of a case through summary judgment “reinforces the

purpose of the Rules, to achieve the just, speedy, and inexpensive determination of

actions, and, when appropriate, affords a merciful end to litigation that would

otherwise be lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d 1190,

1197 (5th Cir. 1986).

Cir. 2003). The nonmoving party has a duty to designate the evidence in the record

that establishes the existence of genuine issues as to the material facts. Celotex

Corporation v. Catrett, 477 U.S. 317, 324 (1986). “When evidence exists in the

summary judgment record but the nonmovant fails even to refer to it in the response

to the motion for summary judgment, that evidence is not properly before the

district court.” Malacara, 353 F.3d at 405.

B. Advantix’s Evidentiary Objections

In its objections, Advantix argues that various pieces of evidence in

Cunningham’s appendix in support should be stricken from the record. See

Objections. The plaintiff filed a response to the defendant’s objections on February

3, 2020 (docket entry 58), and the defendant filed a reply in support of its

objections on February 17, 2020 (docket entry 61). Although the objections are ripe

for determination, the court declines to reach the merits of the objections. For the

reasons stated below, even after considering all of the plaintiff’s summary judgment

evidence, the court concludes that the defendant is entitled to summary judgment.

Thus, Advantix’s objections to Cunningham’s summary judgment evidence are

denied as moot.

C. Application

1. Cunningham’s Title VII Claim for Sex-Based Discrimination

Cunningham’s claim for sex-based discrimination in violation of Title VII is

premised on two theories. Cunningham asserts (1) that she was discriminated

against with respect to her compensation, and (2) that she was discriminated against

with respect to her termination. Supplemental Response at 3, 6.

To maintain a claim under Title VII, a plaintiff must comply with the time

limitations set forth in 42 U.S.C. § 2000e-5(e)(1). Prior to filing a Title VII claim, a

plaintiff generally must file a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) within 300 days of the occurrence of the alleged

unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1); Washington v. Patlis,

868 F.2d 172, 175 (5th Cir. 1989). Claims based on allegations contained in a

late-filed charge of discrimination are time-barred. See Mack v. John L. Wortham &

Son, L.P., 541 F. App’x 348, 356 (5th Cir. 2013) (“[A] claim based on [an allegedly

discriminatory] act is not actionable under Title VII if the act occurred more than

300 days before the charge was filed.”).

Where, as here, a plaintiff attempts to prove a violation of Title VII using

circumstantial evidence, the McDonnell Douglas burden shifting analysis applies.3 See

McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973); Ackel v. National

Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003). The initial burden for such

claims resides with the plaintiff, who must establish the prima facie elements of her

claims. Ackel, 339 F.3d at 385; Okoye v. University of Texas Houston Health Science

Center, 245 F.3d 507, 512-13 (5th Cir. 2001). Once the plaintiff demonstrates these

initial elements, the burden shifts to the defendant to articulate a legitimate,

3 Cunningham concedes that her discrimination claim is premised wholly

upon circumstantial evidence. See Supplemental Response at 3.

nondiscriminatory reason for its adverse employment decision. See McDonnell

Douglas, 411 U.S. at 802. If the defendant is able to state such a proper reason, the

burden shifts back to the plaintiff to demonstrate that the reason proffered by the

defendant is mere pretext. See Okoye, 245 F.3d at 512; Gee v. Principi, 289 F.3d 342,

345 (5th Cir. 2002). “The issue at the pretext stage is not whether the [employer]’s

reason was actually correct or fair, but whether the decisionmakers honestly believed

the reason.” Harville v. City of Houston, Mississippi, 945 F.3d 870, 877 (5th Cir.

2019); see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)

(“The issue at the pretext stage is whether [the employer]’s reason, even if incorrect,

was the real reason for [the employee]’s termination.”), cert. denied, 539 U.S. 926

(2003).

To make out a prima facie case of discrimination at the summary judgment

stage, a plaintiff “must produce evidence that she (1) is a member of a protected

class, (2) was qualified for the position that she held, (3) was subject to an adverse

employment action, and (4) was replaced by someone outside of her protected class

or treated less favorably than other similar[l]y-situated employees who were not in

her protected class.” Harville, 945 F.3d at 875 (citation omitted).

a. Discriminatory Compensation

The plaintiff asserts that she was discriminated against with respect to her

compensation in two ways: first, that she was paid less than similarly situated male

employees throughout her time at Advantix, and second, that the defendant’s alleged

failure to pay the plaintiff for the period between December 15, 2017 and December

18, 2017 was discriminatory. Supplemental Response at 4.

The first two elements of the plaintiff’s prima facie discrimination case are not

in dispute: (1) Cunningham is a woman, and therefore a member of a protected class,

and (2) she was qualified for her position as an account manager. With respect to

the third element, that she was subject to an adverse employment action, the only

allegation of an adverse employment action that the plaintiff supports with

competent summary judgment evidence is that she was not compensated for three

days of work between December 15, 2017 and December 18, 2017.4 Id.

Nonetheless, the plaintiff fails to point to any evidence in support of the fourth

4 The plaintiff concedes that she filed her charge of discrimination with

the EEOC more than 300 days after Advantix raised Cunningham’s salary to match

that of Max Williams. Supplemental Response at 3. Cunningham’s claim is

therefore not supported by evidence that Advantix initially paid Williams a higher

base salary than Cunningham. See Mack, 541 F. App’x at 356 (“[A] claim based on

[an allegedly discriminatory] act is not actionable under Title VII if the act occurred

more than 300 days before the charge was filed.”). The plaintiff attempts to remedy

her lack of evidence by asserting that it is her “intent to show that during the

relevant 300-day period preceding the filing of Plaintiff’s EEOC charge, Plaintiff

received discriminatory paychecks based on the pay of other similarly situated male

employees other than Max Williams.” Response at 4. The plaintiff also avers that

she “has requested, and has yet to receive, employment information for similarly

situated employees” at Advantix, and that plaintiff’s counsel “will be filing a Motion

to Compel the same.” Supplemental Response at 4. The plaintiff’s “intent” to show

discrimination, unsupported by evidence, is insufficient at the summary judgment

stage, where the nonmoving party must show that the evidence is sufficient to

support the resolution of the material factual issues in her favor. See Anderson, 477

U.S. at 249. Furthermore, the plaintiff has had ample time to marshal evidence in

support of her claims. The discovery deadline in this case was originally set for

November 30, 2019, but was later extended until January 30, 2020. See Order

(docket entry 31). This extended deadline has come and gone, and the plaintiff has

failed to point the court to competent evidence in the record to sustain her

discriminatory compensation claim.

element of her prima facie case. There is no indication in the record that, with respect

to Advantix’s alleged failure to pay Cunningham for the period between December

15, 2017 and December 18, 2017, Cunningham was “treated less favorably than

other similar[l]y-situated employees who were not in her protected class.” See

Harville, 945 F.3d at 875. Accordingly, the court finds that the plaintiff has failed to

establish a prima facie case of discriminatory compensation.

b. Discriminatory Termination

With respect to Cunningham’s prima facie case for discriminatory termination,

the first three elements are not in dispute: (1) Cunningham is a woman; (2) she was

qualified for her position, and; (3) she was subjected to the adverse employment

action of termination. The defendant, however, asserts that Cunningham has failed

to establish the fourth element of her prima facie case, Motion at 14, viz., that she was

“replaced by someone outside of her protected class or treated less favorably than

other similar[l]y-situated employees who were not in her protected class.” Harville,

945 F.3d at 875.

The defendant asserts, and the plaintiff does not dispute, that “[a]fter

Cunningham was terminated, her account manager position was not filled.” Motion

at 14. Accordingly, to establish the fourth element of her discriminatory termination

claim, the plaintiff must provide evidence that she was treated less favorably than

similarly-situated male employees with respect to termination. Stated differently, the

plaintiff must show that she was treated less favorably than similarly-situated persons

outside of her protected class “under nearly identical circumstances.” See Lee v.

Kansas City Southern Railway Co., 574 F.3d 253, 259 (5th Cir. 2009). The Fifth

Circuit has “emphasized that ‘nearly identical’ is not synonymous with ‘identical.’”

Harville, 945 F.3d at 875 (quoting Lee, 574 F.3d at 260). Rather, “employment

actions being compared will be deemed to have been taken under nearly identical

circumstances when the employees being compared held the same job or

responsibilities, shared the same supervisor or had their employment status

determined by the same person, and have essentially comparable violation histories.”

Id. (quoting Lee, 574 F.3d at 260). Here, the court concludes that the plaintiff has

failed to establish the fourth element of her prima facie case.

The crux of the plaintiff’s claim for discriminatory termination is that several

male Advantix employees were granted “multiple chances to correct performance and

regularly allowed . . . time to seek other employment before being let go from

Advantix[,]” whereas Cunningham “was given no prior notice of her termination”

and “was not given the chance to correct her alleged insubordinance.” Supplemental

Response at 5. Even if it is assumed arguendo that this is true, Cunningham

nonetheless fails to establish that her male co-workers that were terminated had

“violation histories” that were “essentially comparable” to Cunningham’s own

violation history. See Harville, 945 F.3d at 875. Cunningham avers that several of

her male co-workers were terminated for various reasons. Specifically, Cunningham

states: (1) that Jeff Fernandez, who allegedly failed to produce adequate sales and

“exhibited unprofessional, disrespectful, racist and sexist language,” was terminated

for his failure to sell; (2) that Will Gallahue, who allegedly “was not delivering to the

expectations of his role or to the expectations of Amine Bentahar,” was afforded

“multiple warnings and many months prior notice before he was terminated;” (3)

that Jayson Cole was only given “slaps on the wrist” for engaging in “negligent SEO

tactics” and was not terminated; and (4) that an Advantix employee named Joe “was

not performing but was allowed weeks of time to find another job” before his

termination because Joe’s wife had recently had a baby. Plaintiff’s Supplemental

Appendix at APP. 44-45.

Cunningham’s assertions, assuming they are true, establish that some of her

former male co-workers were terminated for their inability to perform their jobs.

Advantix asserts that Cunningham, on the other hand, was terminated for

insubordination, that is, her unwillingness to perform her job rather than her

inability to do so. Less than two weeks before her termination, Cunningham told her

supervisor that if she had “one more issue at Advantix[,]” she would be “taking all of

[her] business elsewhere[.]” Cunningham does not allege, much less provide

evidence, that any similarly situated male employee engaged in similar conduct.

Accordingly, the court concludes that Cunningham has failed to establish that her

termination occurred “under nearly identical circumstances” to those of similarly

situated male employees. Cunningham therefore fails to establish the fourth element

of her prima facie case for discriminatory termination.

Even if it is assumed, however, that Cunningham had established her prima

facie case, Advantix would nonetheless be entitled to summary judgment. If a

plaintiff establishes a prima facie case of discrimination, the burden then shifts to the

defendant to articulate a non-discriminatory justification for the adverse employment

action. McDonnell Douglas, 411 U.S. at 802. Here, the defendant carries that

burden.

Advantix asserts that Cunningham was terminated for misconduct and

insubordination. Motion at 5. Specifically, Advantix provides evidence that less

than two weeks before her termination, Cunningham informed her supervisor Jon

Bailey that she was retracting all of her contracts with prospective clients until

Advantix agreed to comply with her requests. Defendant’s Appendix at APP. 153;

227. Bailey responded that he couldn’t help Cunningham unless she got the

contracts signed, to which Cunningham replied: “I can’t in good faith send that

contract out knowing there’s a chance it won’t be handled to my liking . . . I’m at the

point where I need autonomy when it comes to my money otherwise I’m not doing

it.” Id. at APP. 228. Cunningham also informed Bailey that if she had “one more

issue at Advantix[,]” she would be “taking all of [her] business elsewhere[.]” Id. at

APP. 230. Accordingly, there is ample uncontroverted evidence in the record to

support Advantix’s assertion that Cunningham was terminated for insubordination.

Cunningham asserts that there is a genuine issue of material fact as to whether

Advantix’s reason for terminating Cunningham was pretextual. To support this

argument, Cunningham points to the fact that “[o]n December 12, 2017, during the

period of [Cunningham]’s alleged refusal to submit contracts, [Cunningham]

emailed” Bailey, Bentahar, Handy, and Ferreri with updates on all of her

outstanding client contracts. Supplemental Response at 8. It is true that on

December 12, 2017, Cunningham purported to have reneged on her previous

retraction of client contracts. The fact remains, however, that in the weeks leading

up to her termination, Cunningham informed her supervisor that she was retracting

client contracts until Advantix agreed to her terms, and threatened to take all of her

business at Advantix elsewhere. Advantix asserts that Cunningham was terminated

for this insubordination, and Cunningham fails to establish a genuine fact issue as to

whether Advantix’s decision to terminate Cunningham for insubordination was

pretextual. See Sandstad, 309 F.3d at 899 (“The issue at the pretext stage is whether

[the employer]’s reason, even if incorrect, was the real reason for [the employee]’s

termination.”).

In summary, the court concludes that, with respect to her claim for

discriminatory termination, Cunningham fails to establish the fourth elements of her

prima facie claim. Furthermore, even if Cunningham could meet the fourth element,

Advantix would nonetheless be entitled to summary judgment in light of the fact that

Cunningham was terminated for a nondiscriminatory reason.

2. Cunningham’s Title VII Claim for Retaliation

In addition to asserting that she was terminated for a discriminatory reason,

Cunningham also contends that she was terminated in retaliation for complaining

about Advantix’s “sexually discriminatory pay practices, sexual harassment, and

sexually discriminatory and hostile work environment.” Supplemental Response at 9.

Title VII prohibits retaliation against an employee “because [s]he has opposed

any practice made an unlawful employment practice by this subchapter.” 42 U.S.C.

§ 2000e-3(a). A claim of retaliation follows a burden-shifting analysis similar to the

one employed in cases of gender discrimination. See Septimus v. University of Houston,

399 F.3d 601, 610-11 (5th Cir. 2005). To establish a prima facie case of unlawful

retaliation under Title VII, a plaintiff must demonstrate that (1) she engaged in

activity protected by Title VII; (2) an adverse employment action occurred; and (3) a

causal link existed between participation in the protected activity and the adverse

employment action. Id. With regard to the first element, “protected activity”

includes both an employee’s opposition to practices made unlawful by Title VII and

an employee’s participation in the investigation of practices made unlawful by Title

VII. See Crawford v. Metropolitan Government of Nashville and Davidson County,

Tennessee, 555 U.S. 271, 274 (2009).

Here, there is no contention that Cunningham participated in any

investigation of unlawful employment practices. Rather, Cunningham asserts that

she made multiple requests to stop working on Mike Lopez’s account, and that in

November and December of 2017, Cunningham told Bentahar “about the offensive

behavior and treatment by Mr. Lopez and others in the office.” Supplemental

Response at 10. Bentahar, in his deposition, stated that he did not know of any

complaints that Cunningham may have made to anyone at Advantix in December of

2017. Plaintiff’s Supplemental Appendix at 70. When the evidence is viewed in the

light most favorable to the nonmoving party, however, there is a question of fact as

to whether Cunningham engaged in opposition to practices made unlawful by Title

VII when she asked to stop working on Lopez’s account, and when she reported to

Bentahar in November and December of 2017 “about the offensive behavior and

treatment by Mr. Lopez and others in the office.”

With regard to the second prong, it is undisputed that Cunningham was

subject to the adverse employment action of termination in December of 2017.

The plaintiff’s prima facie claim founders, however, on the third prong:

establishing a causal nexus between the protected activity and the adverse

employment action. To establish a nexus, the plaintiff appears to rely solely on the

proximity between her reports to Bentahar in November and December of 2017, and

her termination in December 2017. See Supplemental Response at 10 (“In

November and December 2017, Plaintiff told Amine Bentahar about the offensive

behavior and treatment by Mr. Lopez and others in the office. [] Plaintiff was

subsequently terminated on December 18, 2017.”). In some cases, “[c]lose timing

between an employee’s protected activity and an adverse action against [her] may

provide the ‘causal connection’ required to make out a prima facie case of retaliation.”

Swanson v. General Services Administration, 110 F.3d 1180, 1188 (5th Cir.), cert. denied,

522 U.S. 948 (1997). But “the mere fact that some adverse action is taken after an

employee engages in some protected activity will not always be enough for a prima

facie case.” Id. at 1188 n.3 (emphasis in original). Here, the plaintiff does not point

to any evidence to suggest that her reports to Bentahar were in some way connected

to her subsequent termination. The court therefore concludes that the plaintiff has

failed to establish the third prong of her prima facie case.

Moreover, even if it be assumed arguendo that the plaintiff were able to make

out a prima facie case of retaliation, the defendant would nonetheless be entitled to

summary judgment. As discussed above in relation to the plaintiff’s claim for

discrimination, Advantix provides ample evidence to establish that Cunningham was

terminated in December of 2017 for a nondiscriminatory reason, namely,

insubordination.

Accordingly, the defendant is entitled to summary judgment on the plaintiff’s

claim of retaliation.

3. Cunningham’s Title VII Claim for Sexual Harassment

The plaintiff’s Title VII claim for sexual harassment claim is premised on the

hostile work environment theory of harassment.5 Cunningham asserts that she was

subjected to a hostile work environment by (1) her coworkers and managers, and (2)

Advantix’s client Mike Lopez.

a. Legal Standard for Hostile Work Environment Claims

A hostile work environment claim requires the a plaintiff to show the

following: (1) the employee belongs to a protected group; (2) the employee was

subject to harassment; (3) the harassment complained of was based upon the

employee’s belonging to a protected group; (4) the harassment complained of

affected a term, condition, or privilege of employment, and; (5) the employer knew

or should have known of the harassment and failed to take prompt remedial action.

5 The plaintiff also states that she brings a claim for quid pro quo

harassment, Supplemental Response at 13; however, the plaintiff leaves her assertion

of quid pro quo undeveloped and the court therefore declines to address it.

Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). An employer may be held

liable under Title VII for harassment perpetrated by employees and nonemployees

alike. See Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 322 (5th Cir. 2019),

as revised (Feb. 7, 2019) (noting that under Title VII, “nonemployees can be the

source of the harassment[,]” and that “[c]ustomers are one example of third-party

harassers.”). When an employee brings a “Title VII sexual harassment case alleging

that a supervisor with immediate (or successively higher) authority over the

employee harassed the employee[,]” the employee “need only satisfy the first four

elements of the test outlined above.” Watts, 170 F.3d at 509.

b. Cunningham’s Claim of Harassment by Advantix Employees

Cunningham asserts that several of her coworkers and managers at Advantix

created a hostile work environment by subjecting her to sexual harassment.

Supplemental Response at 13-14. Specifically, Cunningham alleges that she received

the following comments:

(1) comments about Plaintiff’s looks by Mr. Handy and

others; (2) Mr. Bentahar compl[i]mented Cunningham and

said, “You’re a pretty girl. You’re charismatic. Doctors love

to schmooze with you”; (3) Mr. Handy stated, “My auto

dealers would love if you and your friend came up there

in . . . that pink dress that your friend was wearing the other

day”; and (4) on several occasions, a coworker [(Jeff

Fernandez)] told Cunningham that “you just sit there and

look pretty” or similar words.

Response at 12; see also Defendant’s Appendix at APP. 49. At her deposition,

Cunningham testified that Mr. Handy made comments about her looks “a few

times,” and that Mr. Fernandez commented on her appearance “[a]round five” times.

Defendant’s Appendix at APP. 45, 50. Taken together, the comments that

Cunningham complains of occurred on approximately ten occasions over the course

of Cunningham’s twenty-one month tenure at Advantix. Cunningham also avers that

these comments took place at sales meetings and in the office, that the comments

made her very uncomfortable at the office, and that they interfered with her ability

to properly carry out her job duties. Plaintiff’s Supplemental Appendix at APP. 47.6

The court concludes that Cunningham has established the first three elements

of her prima facie case: (1) Cunningham is a woman, and thus a member of a

protected class; (2) the comments leveled at Cunningham were harassing in nature,

and; (3) the comments largely pertained to Cunningham’s sex. The plaintiff fails,

however, to establish the fourth element: that the harassment complained of affected

a term, privilege, or condition of employment. See Watts, 170 F.3d at 509.

“Harassment affects a ‘term, condition, or privilege of employment’ if it is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’” Hernandez v. Yellow Transportation, Inc.,

670 F.3d 644, 651 (5th Cir.) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th

Cir. 2002)), cert. denied, 568 U.S. 817 (2012). To satisfy this element, “the work

environment must be ‘both objectively and subjectively offensive, one that a

6 Cunningham’s supplemental response further states: “Plaintiff started

avoiding sales meetings or coming into the office as a result of the offensive

behavior.” Supplemental Response at 14. The paragraph in Cunningham’s

declaration which the plaintiff cites in support of this statement, however, does not

support the plaintiff’s assertion that she began avoiding sales meeting and the office.

See Supplemental Appendix at APP. 47, ¶ 15.

reasonable person would find hostile or abusive, and one that the victim in fact did

perceive to be so.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787

(1998)). “In order to deem a work environment sufficiently hostile, ‘all of the

circumstances must be taken into consideration.’” Id. (quoting Ramsey v. Henderson,

286 F.3d 264, 268 (5th Cir. 2002)). “This includes the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Id. (quotation marks and citations omitted).

Here, the court concludes that the comments that Cunningham received about

her appearance, though offensive and unwelcome to Cunningham, were not

sufficiently severe or pervasive to affect a term, condition, or privilege of

Cunningham’s employment. Cunningham was subjected to these comments on only

approximately ten occasions. Cunningham does not indicate when during her

twenty-one month tenure at Advantix these comments occurred, but regardless of

their timing, the court concludes that the comments were not particularly frequent or

pervasive. See Stewart v. Mississippi Transportation Commission, 586 F.3d 321, 330-31

(5th Cir. 2009) (holding that the plaintiff failed to establish an objectively hostile

work environment where her male supervisor told her that they “should be ‘sweet’ to

each other and stated that he loved her approximately six times” over the course of

about one month); cf. Lauderdale v. Texas Department of Criminal Justice, Institutional

Division, 512 F.3d 157, 164 (5th Cir. 2007) (finding “pervasive” harassing behavior

where the plaintiff alleged that her supervisor called her ten to fifteen times a night

for almost four months, and engaged in other harassing conduct).

It is well settled that infrequent or “isolated incidents, if egregious, can alter

the terms and conditions of employment.” See Royal v. CCC & R Tres Arboles, L.L.C.,

736 F.3d 396, 403 (5th Cir. 2013) (quoting Harvill v. Westward Communications,

L.L.C., 433 F.3d 428, 436 (5th Cir. 2005)); see also Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998) (“[I]solated incidents (unless extremely serious) will not

amount to discriminatory changes in the ‘terms and conditions of employment.’”).

Here, however, the comments directed at Cunningham were not threatening, nor

were they objectively so egregious or humiliating as to alter the terms and conditions

of her employment. In fact, aside from Cunningham’s bald assertion that the

comments made her “very uncomfortable” and interfered with her ability to perform

her job, there is no evidence in the record to support Cunningham’s assertion that

the comments affected any term or condition of Cunningham’s employment. To the

contrary, Advantix presents uncontroverted evidence that during the period between

March 2017 and December 2017, Cunningham was the second highest paid

employee at Advantix.

The objective lack of severity of the comments, coupled with Cunningham’s

failure to provide evidence of any term or condition of her employment that was

affected by the alleged harassment, prompts the court to conclude that no reasonable

jury could find that Cunningham was subjected to a hostile work environment. See

Holmes v. North Texas Health Care Laundry Cooperative Association, 304 F. Supp. 3d

525, 547 (N.D. Tex. 2018) (Lindsay, J.) (granting summary judgment in favor of

employer on employee’s hostile work environment claim where employee “produced

no evidence showing that she failed to perform her job, was discouraged from

continuing to work for [employer] and sought employment elsewhere, or failed to

advance in her career as a result of the harassment.”).

In summary, the court concludes that the conduct to which Cunningham was

subjected at Advantix was neither sufficiently severe nor sufficiently pervasive to alter

a term, condition, or privilege of Cunningham’s employment. Accordingly, Advantix

is entitled to summary judgment on Cunningham’s claim of employer harassment.

c. Cunningham’s Claim of Third-Party Harassment

Cunningham’s claim of third-party harassment is based on the treatment to

which she was allegedly subjected by Advantix’s client Mike Lopez. Advantix argues

that the instances in which Lopez allegedly harassed Cunningham all occurred

outside of the applicable limitations period and therefore are not actionable. The

court agrees.

Similar to claims of discrimination, “[t]o bring an action for sexual harassment

. . . under Title VII in Texas, the plaintiff must file a verified charge [with the EEOC]

within 300 days of the alleged unlawful conduct.” Doe v. Fort Worth Texas, No.

4:19-CV-1001-A, 2020 WL 1159435, at *3 (N.D. Tex. Mar. 10, 2020) (McBryde,

J.) (citing National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 109

(2002)). Here, it is undisputed that Cunningham filed her charge of harassment

with the EEOC “on January 25, 2018, making the preceding 300th day

approximately March 31, 2017.” Supplemental Response at 14. Cunningham also

concedes that “any claim based on alleged harassment occurring before March 31,

2017 is untimely.” Id. Accordingly, the issue before the court is whether

Cunningham has presented sufficient evidence that she was subjected to a hostile

work environment between March 31, 2017, and December 2017, when she was

terminated. The court concludes that she has not.

The plaintiff seeks to establish the second element of her hostile work

environment claim—that she was subjected to harassment—by pointing to the

statement in Cunningham’s declaration that: “[Lopez]’s sexual harassment towards

[Cunningham] continued until [Lopez] canceled his contract in May 2017.”

Supplemental Response at 14; Plaintiff’s Supplemental Appendix at APP. 46. Lopez

cancelled his contract with Advantix on or before May 5, 2017. See Supplemental

Response at 15; Plaintiff’s Supplemental Appendix at APP. 56. Thus, the plaintiff’s

window to show that Lopez subjected her to harassment is between March 31, 2017

and May 5, 2017.

Even if it be assumed arguendo that Lopez subjected Cunningham to

harassment between March 31 and May 5 of 2017, Cunningham nonetheless fails to

establish the fourth element of her prima facie case for harassment: that the

harassment complained of affected a term, condition, or privilege of her employment.

As laid out in greater detail above, “[h]arassment affects a term, condition, or

privilege of employment if it is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment.” Hernandez,

670 F.3d at 651 (internal quotations omitted).

Here, the plaintiff has not pointed to any evidence in the record of how severe

or pervasive the harassment may have been that allegedly occurred between March

31 and May 5, 2017. And, as with her allegations of supervisor harassment, the

plaintiff fails to establish that any term, condition, or privilege of her employment

was affected by Lopez’s alleged harassment. See Holmes, 304 F. Supp. 3d at 547.

Accordingly, the court concludes that the plaintiff has failed to establish a prima facie

case of client-based harassment under Title VII.7

In summary, the court concludes that the plaintiff has failed to establish that

any of the alleged harassment to which she was subjected after March 31, 2017 was

sufficiently severe or pervasive to alter a term, condition, or privilege of her

employment. Accordingly, Advantix is entitled to summary judgment on

Cunningham’s claim of third-party harassment.

4. Cunningham’s EPA Claim for Discriminatory Compensation

In her supplemental response, Cunningham asserts that her Equal Pay Act

claim is premised on two grounds: (1) the disparity in pay received by Cunningham

7 The defendant also argues that Cunningham’s claim of client-based

harassment fails as a matter of law because “the alleged client harassment was not

unwelcome.” Motion at 24-28. The court declines to address this argument,

however, because all of the alleged harassment that Advantix asserts was “not

unwelcome” took place prior to March 31, 2017. Because Cunningham fails to

specify any acts of harassment that occurred within the 300 day period preceding the

filing of her EEOC charge, the court is unable to determine whether any such acts

were unwelcome.

as compared to Max Williams prior to Williams’s termination in November 2016,

and (2) Advantix’s alleged failure to pay Cunningham as much as other similarly

situated male employees between November 2016 and December 2017.

Supplemental Response at 17. Advantix argues that Cunningham’s EPA claim,

insofar as it concerns the disparity between Cunningham’s and Williams’s salaries, is

time-barred. The court agrees.

“Claims under the FLSA, including Equal Pay Act claims, must be filed within

two years after the cause of action accrues, or within three years if the alleged

violation was ‘willful.’” Ikossi-Anastasiou v. Board of Supervisors of Louisiana State

University, 579 F.3d 546, 552 (5th Cir. 2009), cert. denied, 559 U.S. 904 (2010) .

“An employer willfully violates the [EPA] if it ‘either knew or showed reckless

disregard for the matter of whether its conduct was prohibited by the statute.’” Id.

(quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). On the other

hand, “[a]n employer who ‘act[s] without a reasonable basis for believing that it was

complying with the [EPA]’ is merely negligent.” Zannikos v. Oil Inspections (U.S.A.),

Inc., 605 F. App’x 349, 360 (5th Cir. 2015) (quoting McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 134-35 (1988)). “Because willfulness is a question of fact, summary

judgment in favor of the employer is inappropriate if the plaintiff has introduced

evidence sufficient to support a finding of willfulness.” Ikossi-Anastasiou, 579 F.3d at

552 (citations omitted).

Here, it is undisputed that the last time that the plaintiff was affected by the

allegedly discriminatory pay differential between Cunningham and Williams was in

November of 2016 when Williams was terminated, see Supplemental Response at 17,

and the plaintiff did not file this suit until more than two years later, on January 25,

2019, see Complaint. Cunningham nonetheless asserts that her claim is timely under

the EPA’s three-year statute of limitations, which applies in cases of “willful”

violation of the EPA. The plaintiff’s argument is unavailing.

Cunningham points to no evidence in the record in support of her assertion

that Advantix willfully violated the EPA. Instead, Cunningham merely asserts that

“it is [the] [p]laintiff’s position that [the] [d]efendant’s violation of the EPA was

willful and would therefore impute a limitation of three years if proved.” Id. This

assertion, standing alone, does not amount to evidence sufficient to support a finding

of willfulness. See Ikossi-Anastasiou, 579 F.3d at 553 (finding evidence that a female

plaintiff “was paid less than many of her male colleagues and that [her employer]

knew she was dissatisfied with this difference [was] not enough to raise a fact

question as to whether [her employer] knew or recklessly disregarded that its pay

scale was prohibited by the [EPA].”); see also Zannikos, 605 F. App’x at 360

(concluding that the plaintiffs’ allegations that employer “knew of the FLSA’s

potential applicability, as demonstrated by its employee handbook; failed adequately

to research the statute’s applicability; and failed to consult with attorneys or the

[Department of Labor] on the matter” were insufficient to demonstrate willfulness).

Accordingly, the court concludes that the EPA’s three year statute of

limitations does not apply in this case, and that Cunningham’s EPA claim is time-

barred insofar as it relates to the pay differential between Cunningham and Williams.

Advantix is therefore entitled to summary judgment on this aspect of Cunningham’s

EPA claim.

Turning to Cunningham’s assertion that Advantix violated the EPA by paying

her less than similarly situated male employees other than Williams, the court

concludes that Cunningham has failed to establish a prima facie case.

To establish a prima facie case under the EPA, a plaintiff must demonstrate

that (1) her employer is subject to the EPA; (2) she performed work in a position

requiring equal skill, effort, and responsibility under similar working conditions; and

(3) she was paid less than members of the opposite sex providing the basis for

comparison. Jones v. Flagship International, 793 F.2d 714, 722-23 (5th Cir. 1986),

cert. denied, 479 U.S. 1065 (1987).

Here, with regard to the third prong of her prima facie case, the plaintiff fails to

point to any evidence in the record demonstrating that she was paid less than

similarly situated male Advantix employees during the two year limitations period

prior to the commencement of this suit on January 25, 2019. Instead, the plaintiff

cites two passages in the record, both of which concern the pay differential between

Cunningham and Williams, which ended in November 2016. Supplemental

Response at 18 (citing Plaintiff’s Supplemental Appendix at APP. 44, ¶2;

Defendant’s Appendix at APP. 2, ¶¶7-8).

The plaintiff seeks to remedy her lack of evidence by stating that she plans to

file a motion to compel documents containing “employment information for similarly

situated employees employed by [Advantix] during the period of [Cunningham]’s

employment by [Advantix].” Id. at 17. To date, however, the plaintiff has yet to file

such a motion. Furthermore, the deadline by which discovery was to be completed

in this case—initially set for November 30, 2019 and extended through January 30,

2020—has long since passed. See Order Establishing Schedule and Certain Pretrial

Requirements (docket entry 12); Order (docket entry 31). In light of the plaintiff’s

unexplained delay in moving to compel further discovery, the court declines to delay

disposition of the defendant’s motion for summary judgment in anticipation of a

motion to compel that may never come. See McCollum v. Puckett Machinery Co., 628

F. App’x 225, 228 (5th Cir. 2015) (per curiam) (“[O]ur precedent suggests that a

district court is within its discretion to deny a motion to compel filed on or after the

court-ordered discovery deadline—regardless of the requested discovery’s value to the

party’s case.”). The court therefore concludes that Cunningham has failed to

establish the third element of her prima facie case.

In summary, the court concludes that the EPA’s two-year statute of limitations

applies to Cunningham’s claim, and that Cunningham has failed to establish a prima

facie case of pay discrimination under the EPA. Accordingly, the court concludes that

Advantix is entitled to summary judgment on Cunningham’s EPA claim.

5. Cunningham’s FLSA Claim for Misclassification

Cunningham asserts a claim for violation of the Fair Labor Standards Act

(“FLSA”), alleging that Advantix misclassified Cunningham as an exempt employee

and failed to pay her overtime compensation. Advantix argues that Cunningham is

exempt from the FLSA’s overtime provision. The court agrees with the defendant.

Congress enacted the FLSA to provide each covered employee with “[a] fair

day’s pay for a fair day’s work,” and to protect them from “the evil of overwork as

well as underpay.” Dewan v. M-I, L.L.C., 858 F.3d 331, 333 (5th Cir. 2017)

(quoting Barrentine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 739 (1981))

(internal quotation marks omitted). The FLSA pursues this goal, in part, through an

overtime provision, which requires an employer to compensate any covered employee

who works in excess of forty hours in a workweek “at a rate not less than one and

one-half times the [employee’s] regular rate . . . .” Id. at 333-34 (quoting 29 U.S.C.

§ 207(a)(1)).

The FLSA’s general rule is that “all employees must receive overtime

compensation for hours worked in excess of forty hours during a seven-day

workweek.” Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). Specifically,

the FLSA provides as follows:

Except as otherwise provided in this section, no employer

shall employ any of his employees who in any workweek is

engaged in commerce or in the production of goods for

commerce, . . . for a workweek longer than forty hours unless

such employee receives compensation for his employment in

excess of the hours above specified at a rate not less than one

and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

Although the FLSA’s overtime provision appears broad, the statute contains

various exemptions. Here, Advantix asserts that it was not required to pay

Cunningham overtime compensation because Cunningham fell into the FLSA’s

administrative exemption, outside sales exemption, combination exemption, and

highly compensated employee exemption.

When an employer asserts that an employee was exempt from the FLSA’s

overtime requirement, an affirmative defense, the burden of proof is on the

employer. See Dewan, 858 F.3d at 334 (citing Owsley v. San Antonio Independent School

District, 187 F.3d 521, 523 (5th Cir. 1999), cert. denied, 529 U.S. 1020 (2000)).

“The employer has the burden of establishing that an exemption applies by a

preponderance of the evidence.” Faludi v. United States Shale Solutions, L.L.C., 950

F.3d 269, 273 (5th Cir. 2020) (citing Meza v. Intelligent Mexican Marketing, Inc., 720

F.3d 577, 581 (5th Cir. 2013)). The Supreme Court has instructed that courts

“must give FLSA exemptions a ‘fair reading’ rather than narrowly construing them

against the employer.” Id. (quoting Encino Motorcars, LLC v. Navarro, ––– U.S. –––,

138 S. Ct. 1134, 1142 (2018)).

Here, upon consideration of Advantix’s assertion of the administrative, outside

sales, and combination exemptions, the court concludes that Cunningham is exempt

from the overtime provision of the FLSA. Accordingly, the court declines to consider

whether the highly compensated employee exemption applies to Cunningham.

a. The FLSA’s Administrative, Outside Sales, and Combination Exemptions

For the administrative exemption to the FLSA’s overtime provision to apply,

“the employee must be one (1) who is ‘[c]ompensated on a salary or fee basis at a

rate of not less than $455 per week;’ (2) ‘[w]hose primary duty is the performance of

office or non-manual work directly related to the management and general business

operations of the employer or the employer’s customers;’ and (3) ‘[w]hose primary

duty includes the exercise of discretion and independent judgment with respect to

matters of significance.’” Dewan, 858 F.3d at 334 (quoting 29 C.F.R. § 541.200).

For the outside sales exemption to apply, the employee must be one

(1) Whose primary duty is (i) making sales within the

meaning of section [203(k) of the FLSA], or (ii) obtaining

orders or contracts for services or for the use of facilities for

which a consideration will be paid by the client or customer;

and

(2) Who is customarily and regularly engaged away from the

employer’s place or places of business in performing such

primary duty.

Meza, 720 F.3d at 581(quoting 29 C.F.R. § 541.500(a)(1)-(2) (footnote omitted)).

Finally, the combination “exemption provides that ‘[e]mployees who perform

a combination of exempt duties as set forth in the regulations in this part for

executive, administrative, professional, outside sales and computer employees may

qualify for exemption. Thus, for example, an employee whose primary duty involves

a combination of exempt administrative and exempt executive work may qualify for

exemption. In other words, work that is exempt under one section of this part will

not defeat the exemption under any other section.’” Dean v. Newsco International

Energy Services., USA, Inc., No. 4:15-CV-03406, 2019 WL 3566726, at *13 (S.D.

Tex. Aug. 6, 2019) (quoting 29 C.F.R. § 541.708).

“Section 541.700 of the [Department of Labor] regulations defines ‘primary

duty’ as ‘the principal, main, major or most important duty that the employee

performs.’” Meza, 720 F.3d at 581(quoting 29 C.F.R. § 541.700). Accordingly, the

issue before the court is whether Advantix has established that Cunningham’s

“principal, main, or most important duty” as an Advantix employee consisted of

exempt administrative work, exempt outside sales work, or a combination of the two.

Here, the court concludes that Cunningham engaged in both exempt

administrative work and exempt outside sales work, and that in combination, this

exempt work constituted Cunningham’s primary duty.

b. Cunningham’s Exempt Administrative Work

The first element of the administrative work exemption is not in dispute: there

is no question that Cunningham was compensated on a salary basis of at least $455

per week during the entirety of her tenure at Advantix. To establish the second and

third elements, Advantix must demonstrate that Cunningham engaged in “office or

non-manual work directly related to the management or general operations of the

employer or the employer’s customers,” and that in regard to such work,

Cunningham engaged in the “exercise of discretion and independent judgment with

respect to matters of significance.” See 29 C.F.R. § 541.200(a)(2)-(3) (emphasis

added).

The regulations promulgated pursuant to the FLSA provide a non-exhaustive

list of examples of “work directly related to management or general business

operations” which includes “work in functional areas such as” budgeting; auditing;

quality control; advertising; marketing; research; and similar activities. Id.

§ 541.201(b). The court concludes that Cunningham engaged in such work with

respect to the management and general business operations of both Advantix and

Advantix’s customers.

Advantix “provides on-line marketing and consulting services . . . [by]

assist[ing] clients with on-line advertising strategies and services, including

social-media presence, paid-search advertising [], search-engine optimization, online

reputation management, and additional related services.” Motion at 1. According to

her deposition testimony, Cunningham’s job at Advantix consisted of two

components: sales and account management. Appendix in Support at APP. 135.

Her account management work included consulting with clients regarding their needs

and providing solutions and sales strategies to meet those needs, id. at APP. 38-39,

135-36; negotiating back and forth with clients regarding “[b]udgets, services, [and]

timelines”, id. at APP. 135-36; creating advertisements, id. at APP. 142-43; setting

up, managing, and monitoring advertising campaigns, id. at APP. 140; ensuring that

services that clients requested were being rendered by Advantix, id.; and reporting

results to clients, id. at APP. 141. Cunningham also engaged in “consultive selling,”

which Cunningham described as follows: “Where you’re not just selling a product;

you’re consulting with the client on their needs and then having more of a solution-

based service.” Id. at APP. 38.

The court concludes that these duties amount to “work directly related to

management or general business operations” of Advantix, and of Advantix’s clients.

Furthermore Cunningham’s deposition testimony specifically establishes that she

engaged in “work in the functional areas” of budgeting, advertising, and marketing,

all of which are listed as examples of administrative duties in 29 C.F.R. § 541.201(b).

See Zannikos, 605 F. App’x at 353 (finding that employees engaged in exempt

administrative work where they oversaw several functions of the employer’s business,

provided the employer’s “customers with inspection and operational support

services[,]” and employees’s “primary duties included work in several functional areas

explicitly listed as administrative in Section 541.201(b)”); see also Hines v. State

Room, Inc., 665 F.3d 235, 243 (1st Cir. 2011) (concluding that employees who were

sales managers at a banquet provider engaged in exempt administrative work where

the employees “worked with each client to create a custom event in all of the

particulars”, and “worked to establish long-term relationships, to keep clients happy

and to maintain the overall reputation of their employers.”).

In her response, Cunningham points to the deposition testimony of Amine

Bentahar in support of her assertion that Cunningham “was not to perform

administrative work.” Supplemental Response at 21. According to Bentahar’s

deposition testimony, Cunningham was hired to “an account executive’s job [which]

is to go in and bring new business, be the main point of contact, coordinate with the

operations team to make sure that everything is being delivered that that person

sold.” Plaintiff’s Supplemental Appendix at APP. 34-35. Although Bentahar’s

description of the duties that Cunningham was hired to perform is not as

comprehensive as the duties that Cunningham actually performed, nothing in

Bentahar’s statement contradicts Cunningham’s own testimony regarding the

administrative duties that she performed at Advantix. Cunningham also raises a list

of duties that she asserts “she did not state she performed” during her deposition.

Supplemental Response at 22-23. The court concludes that these unsupported

assertions do not raise genuine issues of fact as to the duties that Cunningham

performed at Advantix.8

Turning to the third prong of the administrative exemption, the court

concludes that there is no genuine dispute of fact that Cunningham exercised

discretion and independent judgment with respect to matters of significance.

The “exercise [of] discretion and independent judgment with respect to

matters of significance . . . ‘involves the comparison and the evaluation of possible

courses of conduct, and acting or making a decision after the various possibilities

have been considered.’” Zannikos, 605 F. App’x at 354 (quoting 29 C.F.R.

§ 541.202(a)). “It is not necessary, however, that the employee[’s] decisions be free

from review: ‘The decisions made as a result of the exercise of discretion and

independent judgment may consist of recommendations for action rather than the

actual taking of action.’” Bondy v. City of Dallas, 77 F. App’x 731, 733 (5th Cir.

2003) (per curiam) (quoting 29 C.F.R. § 541.207(e)(1))9; see also Zannikos, 605

8 For example, the plaintiff states: “It was not part of Plaintiff’s duties to

conceptualize, build, and manage advertising and create marketing campaigns.”

Supplemental Response at 23. This argument belies Cunningham’s sworn deposition

statement that her account manager-type duties included “setting up campaigns, . . .

managing campaigns, monitoring them, . . . coming up with branding ideas, coming

up with ads and making website improvements[.]” Appendix in Support at APP.

140.

9 The language from § 541.207(e)(1) quoted in Bondy is now located in

§ 541.202(c).

F. App’x at 354 (“An employee need not exercise final decision-making authority to

meet this standard.”).

Here, Cunningham’s deposition testimony clearly establishes that she

exercised discretion and independent judgment with respect to client development

and account management, both of which are significant aspects of Advantix’s

business. See Appendix in Support at APP. 2. When asked whether she had help in

establishing client pitches, Cunningham responded: “I think on a couple of occasions,

I asked for help from other people to pull some information for me. But for the most

part, no, I was doing it all.” Appendix in Support at APP. 137. Also, when asked if

she had to get her sales pitches approved, Cunningham responded that she was

required to seek approval only about half of the time. Id. Furthermore, Cunningham

engaged in consultive sales, which Cunningham defined as “not just selling a

product” but “consulting with the client on their needs and then having more of a

solution-based service.” See id. at APP. 38, 136. In her role as an account manager,

Cunningham also created advertisements, negotiated back and forth with clients,

consulted with clients regarding their needs, and provided solutions and sales

strategies to meet those needs.

Cunningham argues that she did not exercise independence because Advantix

exercised control over her employment, “including requiring her to work weekends,

after business hours, and go to certain functions in order to meet clients.”

Supplemental Response at 22. Cunningham also points to a passage from Bentahar’s

deposition testimony in which Bentahar stated that Advantix’s vice president of sales

oversaw the sales team, coordinated and managed salespeople, worked with sales

people on prospects, provided salespeople support if they needed help, and attended

pitches with salespeople if needed. Supplemental Response at 22; Supplemental

Appendix in Support at APP. 76. The record does not indicate whether Advantix’s

vice president of sales specifically provided Cunningham with such support.

However, viewing the evidence in the light most favorable to the plaintiff, and

assuming that Advantix exercised control over Cunningham’s employment to the

extent described above, the court finds no genuine dispute of fact that Cunningham

exercised independent judgment and discretion in the context of her consultative

sales, account management, and client development.10

Accordingly, the court concludes that, based on Cunningham’s description of

her duties at Advantix in her deposition, Cunningham exercised discretion and

independent judgment with respect to matters of significance. See Bondy, 77 F.

App’x at 733 (holding that employees who were event coordinators exercised

independent judgment and discretion in part because of the employees’ ability to

plan most aspects of events, negotiate with clients on behalf of their employer, and

address clients’ requests and problems during events); see also Hines, 665 F.3d at 245

(finding that employees exercised discretion by “working with a client to create a

custom product, personalized to individual tastes and budgets”).

10 In her declaration, Cunningham also states: “My primary duties to

Advantix did not include the exercise of discretion and independent judgment with

respect to matters of significance.” Plaintiff’s Supplemental Appendix at APP. 47.

Such legal conclusions, however, are not competent summary judgment evidence.

See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

c. Cunningham’s Exempt Outside Sales Work

For the outside sales exemption to apply, the employee must be one

(1) Whose primary duty is (i) making sales within the

meaning of section [203(k) of the FLSA], or (ii) obtaining

orders or contracts for services or for the use of facilities for

which a consideration will be paid by the client or customer;

and

(2) Who is customarily and regularly engaged away from the

employer’s place or places of business in performing such

primary duty.

Meza, 720 F.3d at 581(quoting 29 C.F.R. § 541.500(a)(1)-(2)). Under § 203(k), the

definition of sales “includes any sale, exchange, contract to sell, consignment for sale,

shipment for sale, or other disposition.” 29 U.S.C. § 203(k). Work that an

employee performs “incidental to and in conjunction with the employee’s own

outside sales or solicitations” qualifies as exempt outside sales work as well. 29

C.F.R. § 541.500(b); see also Meza, 720 F.3d at 586 (“[The employee] never

performed work that could not be classified as either sales or work incidental to his

sales, and therefore never performed non-exempt activities.”).

Here, the court concludes that there is no genuine dispute as to the fact that

Cunningham engaged in sales and incidental work for Advantix, and that in doing so,

Cunningham was customarily and regularly engaged away from Advantix’s place of

business.

In her deposition, Cunningham testified that she was “hired to sell.”

Appendix in Support at APP. 135. As part of her sales duties, Cunningham often

went out in the field to visit clients. Id. at APP. 138-39. Cunningham worked 60

hour per week, on average, but was in the office only two to three days a week for

varying amounts of time. Id. at APP. 133, 139. She further testified that she “spent

about 30 hours a week doing outside sales, networking[,] [and] being on appointments

and stuff[.]” Id. at APP. 139 (emphasis added).

In her response, Cunningham does not raise any argument as to why the

“outside sales” work about which she testified in her deposition did not qualify as

outside sales under the FLSA. Instead, Cunningham asserts that outside sales work

was not her primary work, and that her “work was in office and was not exclusively

conducted away from Advantix’s place of business.” Supplemental Response at 23.

This argument is inapposite. For outside sales work to count as exempt work, an

employee need only be “customarily and regularly engaged away from the employer’s

place” of business. See 29 C.F.R. § 541.500(a)(2). Here, Cunningham testified at

her deposition that she spent about 30 hours each week away from the office, and

that she was in the office only two or three days per week. The court therefore

concludes that there is no genuine dispute as to the fact that Cunningham

customarily and regularly engaged in sales and incidental work away from Advantix’s

place of business.

d. Cunningham’s Primary Duties Consisted of Exempt Work

Advantix asserts that Cunningham’s primary duty at Advantix was the

performance of exempt administrative work, exempt outside sales work, or a

combination of the two. Cunningham rejoins that her “primary role was to

participate in marketing campaigns to attract and retain business,” work that

Cunningham argues is non-exempt under the FLSA. As described above,

Cunningham performed both exempt administrative work and exempt outside sales

work. The court now concludes that Cunningham’s exempt administrative and

outside sales work, in combination, amounted to her primary duty. The court

therefore concludes that Cunningham was exempt from the FLSA’s overtime

provision under the combination exemption.11

“Section 541.700 of the [Department of Labor] regulations defines ‘primary

duty’ as ‘the principal, main, major or most important duty that the employee

performs.’” Meza, 720 F.3d at 581(quoting 29 C.F.R. § 541.700). “A

non-exhaustive list of factors courts consider when determining an employee’s

primary duty include: (1) ‘the relative importance of the exempt duties as compared

with other types of duties,’ (2) ‘the amount of time spent performing exempt work,’

(3) ‘the employee’s relative freedom from direct supervision,’ and (4) ‘the

relationship between the employee’s salary and the wages paid to other employees for

the kind of nonexempt work performed by the employee.’” Zannikos, 605 F. App’x at

352 n.1 (quoting 29 C.F.R. § 541.700(a)). Furthermore, “[u]nless other factors

support a contrary conclusion, ‘[e]mployees who spend more than 50 percent of their

time performing exempt work will generally satisfy the primary duty requirement.’”

Meza v. Intelligent Mexican Marketing, Inc., No. 3:11-CV-1655-O, 2012 WL 12885082,

11 Because the court concludes that the combination exemption applies to

Cunningham, the court need not consider whether either exempt administrative work

or exempt outside sales work, standing alone, amounted to Cunningham’s primary

duty.

at *3 (N.D. Tex. July 2, 2012) (O’Connor, J.) (quoting 29 C.F.R. § 541.700(a)),

aff’d, 720 F.3d 577 (5th Cir. 2013).

Here, the court concludes that there is no genuine dispute as to the fact that

Cunningham spent more than 50 percent of her time engaged in exempt work.

Cunningham testified at her deposition that she worked an average of 60 hours per

week, that she spent about 30 hours per week engaged in “outside sales” and related

out of office work, and that she spent over 30 hours per week engaged in her account

management duties. Appendix in Support at APP. 139. Furthermore, the court

determines that none of the other factors weighs against a finding that Cunningham’s

primary duty at Advantix was comprised of exempt work.

In summary, the court concludes that Cunningham engaged in both exempt

administrative work and outside sales work, and that in combination this exempt

work amounted to her primary duty at Advantix. The court therefore concludes that

Cunningham was exempt from the overtime requirements of the FLSA, and thus,

that Advantix is entitled to summary judgment on Cunningham’s FLSA claim.

III. CONCLUSION

In accordance with the foregoing, the court concludes that Advantix is entitled

to summary judgment on all five of Cunningham’s claims. Accordingly, Advantix’s

motion for summary judgment is GRANTED. Judgment will be entered for

Advantix. Advantix’s objections to Cunningham’s summary judgment evidence are

DENIED as moot.

SO ORDERED

April 20, 2020.

A. JOE FIS

Senior United States District Judge

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