Summary
finding plaintiff's race and national origin claims "so closely related that a separate claim for national origin would merely duplicate his race claim"
Summary of this case from Davis v. BrennanOpinion
Civil Action No. 3:00-CV-1757-L
December 31, 2002
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff's Motion to Modify Scheduling Order, filed March 4, 2002; Defendant's Motion for Summary Judgment, filed March 5, 2002; Plaintiff's Motion to Compel Defendant to Respond to Plaintiff's Interrogatories Request for Production, filed May 1, 2002; and Plaintiff's Request for Continuance and Request to Re-Open Discovery Period, filed June 21, 2002. Having considered the parties' motions, responses, replies, and the applicable law, the court denies Plaintiff's Motion to Modify Scheduling Order; denies Plaintiff's Motion to Compel Defendant to Respond to Plaintiff's Interrogatories Request for Production; denies Plaintiff's Request for Continuance and Request to Re-Open Discovery Period; and grants Defendant's Motion for Summary Judgment.
I. Factual and Procedural Backround
Plaintiff Eddie Caswell ("Caswell" or "Plaintiff"), an African American male, brought this action against his former employer Federal Express Corporation ("FedEx" or "Defendant"), for allegedly discharging him on the basis of his race, color, national origin, gender, and sex in violation of Title VII of the Civil Rights Act of 1964 as amended ("Title VII"), 42 U.S.C. § 2000e-2 et seq., and in violation of 42 U.S.C. § 1981. Caswell began working for FedEx in 1989. At the time his employment was terminated, he worked as a courier making deliveries for FedEx. As a courier, Caswell was required to scan the barcodes of packages he delivered to customers using an instrument known as a tracker. Packages had different delivery deadlines, and the scan time was considered the final delivery time for deadline purposes.
On June 10, 1999, David Rebholz ("Rebholz"), FedEx's Senior Vice President of Domestic Ground Operations, issued a company memorandum, noting that "there had been an increase in instances of falsification of delivery record information and associated use of delivery exception codes." Rebholz had come to this conclusion after analyzing delivery records and finding that "tens of thousands" had scan codes entered "within minutes or seconds of each other," when the packages being delivered were not to locations next door or in close proximity, which might have explained the short time between scans. Rebholz specified that as of June 1, 1999, the company would "consistently apply the standard of [t]ermination for falsification of delivery records and delivery exception codes after a thorough and complete investigation of the facts." Rebholz directed all managers to convey this information to their employees. Caswell was given a copy of the memorandum on July 7, 1999, and he acknowledged in writing that he had received it.
On August 23, 1999, Caswell and five other couriers left the Dallas, Texas station later than their usual start time to make their deliveries, because the aircraft delivering freight to the station that morning had arrived late. Management informed Caswell and the other couriers that they would not be disciplined for any late deliveries made that day, because they were leaving the station late for reasons beyond their control. After running a delivery report the next day, Caswell's manager, Amy Betancourt ("Betancourt"), noticed that Caswell was the only courier, who had made his deliveries on time on August 23, 1999, and that his report appeared unusual in that it indicated he had delivered eight packages between 10:29 a.m. and 10:30 a.m. and delivered twenty-nine other packages in a four-minute period. This led Betancourt, a former courier, to suspect that Caswell had falsified his delivery times.
On August 25, 1999, Betancourt notified Caswell that he was being suspended with pay pending an investigation for falsifying delivery records. On August 26, Caswell returned to the station to fill out a two-page questionnaire regarding his deliveries on August 23 and was showed the delivery report for that day. On August 27, he returned to the station again and was asked to recreate the eight deliveries he made on August 23 between 10:29 a.m. and 10:30 a.m. by simply scanning eight packages and typing in the customer information. It took Caswell between two and three minutes to do this. This time did not include the time it would have taken him to actually deliver the packages.
That same day, Betancourt and Senior Manager Stanley Couch ("Couch") took a tracker and some fake packages to the address to which Caswell had made the eight deliveries and twice attempted to retrace his steps with Betancourt holding the elevator door open on each floor, because Caswell had told them that he did not have to wait for the elevator when making the deliveries himself. Unsuccessful, Betancourt and Couch concluded that Caswell could not have possibly made the deliveries in such a short period of time. Upon further investigation, management discovered that Caswell had made similar numerous deliveries in a short period of time to the same address earlier that month on August 18, 19, and 20.
Caswell's employment was terminated on August 27, 1999 for falsification of electronic delivery records. On February 8, 2000, Caswell filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on race, and on August 11, 2000, he filed his Complaint in this action.
In his Complaint, Caswell alleged that: (1) he was discriminated on the basis of his race, color, national origin, gender, and sex, because he was discharged for falsifying delivery records while other Caucasian employees were not; (2) FedEx's reason for discharging him are pretextual in nature; (3) FedEx's policies and practices for disciplining and investigating suspected violations of company rules and policies operate to unlawfully deny African-Americans and men equal employment opportunities because of their race and gender; and (3) as a result of discriminatory remarks made by certain FedEx managers, Caswell was "subjected to a systematic and pattern of discriminatory animus by [D]efendant." FedEx, on the other hand, denies Caswell's allegations and maintains that he was discharged for falsifying delivery records in violation of company policy and for no other reason. FedEx therefore contends it is entitled to summary judgment on Caswell's claims of discrimination.
On December 21, 2001, the court issued an amended Scheduling Order, extending the original deadlines set forth in its original Scheduling Order of October 10, 2000. The amended order set the case for trial on the court's June 3, 2002 trial docket. In accordance with the Local Rules and the court's standard practice, the court ordered that the parties complete all discovery by February 4, 2002 and set the dispositive motion deadline for March 4, 2002. On March 4, 2002, Caswell moved to modify the court's scheduling order, and FedEx moved for summary judgment the following day on March 5, 2002. Then, on May 1, 2002, Caswell filed his Motion to Compel FedEx to Respond to Caswell's Interrogatories Request for Production ("Caswell's Motion to Compel"), but he made no mention of FedEx's outstanding motion for summary judgment or his failure to file a response.
FedEx asserts that it filed its Motion for Summary Judgment on March 4, 2002; however, both the file stamp and the clerk's docket sheet reflect that the motion was filed on March 5, 2002. If the motion was filed on March 5, it was filed one day late, because the deadline for filing dispositive motions was March 4. Whether the motion was timely or not, though, is immaterial, as the court has determined that it will consider all of the parties' filings in the interest of judicial economy.
On May 13, 2002, the court held a status conference to discuss issues related to Caswell's Motion to Modify Scheduling Order, Caswell's Motion to Compel, and FedEx's Motion for Summary Judgment. On May 14, 2002, the court issued an order suspending the pretrial conference and pretrial deadlines, vacating the June trial setting, and ordering FedEx to file a response to Caswell's Motion to Compel. Rather than issue a new scheduling order at that time, the court informed the parties that it would reset the case for trial after ruling on the parties' motions. Before the court ruled on the parties' motions, Caswell, without leave of the court, filed his Response in Opposition to FedEx's Motion for Summary Judgment on June 21, 2002, in which he requested a continuance and reopening of the discovery period.
II. Rule 56(f) Continuance A. Rule 56(f) Standard
The court construes Caswell's request for a continuance in his response to FedEx's Motion for Summary Judgment as a Rule 56(f) motion. Fed.R.Civ.P. 56(f) provides:
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that a party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Rule 56(f) authorizes a court to grant a continuance when the nonmovant has not had an opportunity to conduct discovery that is essential to his opposition to a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986). As a result, Rule 56(f) provides federal courts with a mechanism for dealing with the problem of premature summary judgment motions. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). "Rule 56(f) motions are generally favored and should be liberally granted." Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).
To comply with the Rule, the party opposing summary judgment must show (1) why he needs additional discovery and (2) how that discovery will create a genuine issue of material fact. Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th Cir. 1999). Although the burden is not a heavy one, the nonmovant must justify his entitlement to a continuance by presenting specific facts explaining his inability to make a substantive response. Union City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 137 (5th Cir. 1987). A claim that further discovery or a trial might reveal facts of which the nonmovant is currently unaware is insufficient. Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1123 (5th Cir. 1988). A party may not rely on vague assertions that additional discovery will produce needed, but unspecified facts, Union City, 823 F.2d at 137, but instead must identify a genuine issue of material fact that justifies the continuance pending further discovery. See Woods v. Fed. Home Loan Bank Bd., 826 F.2d 1400, 1415 (5th Cir. 1987). Finally, in conjunction with a nonmovant's request for additional discovery, the nonmovant must establish that he has diligently pursued relevant discovery. See Beattie, 254 F.3d at 606 (refusing Rule 56(f) continuance because nonmovant was not diligent in conducting discovery); Int'l Shortstop, Inc. v. Rally's, Inc., 989 F.2d 1257, 1267 (5th Cir. 1991) (holding court need not accommodate request for continuance when nonmovant has not diligently pursued the discovery of necessary evidence).
B. Analysis
FedEx argues that Plaintiff's motion for continuance and reopening of the discovery period should be denied, because: (1) Plaintiff has failed to identify what additional discovery he seeks or how the additional discovery will help him defeat summary judgment; (2) Plaintiff has failed to diligently pursue discovery; and (3) FedEx would be prejudiced by a continuance as a result of having to incur additional costs, that is, aside from the costs already incurred by lead counsel having to travel to Dallas for the May 13 hearing, FedEx would incur additional costs associated with engaging the assistance of local counsel to address Plaintiff's last minute motion and any back pay through trial if he were to prevail on his claim of discrimination.
Caswell, on the other hand, contends that consideration of FedEx's summary judgment motion prior to the completion of discovery would be improper. To support this proposition, Caswell cites Xerox Corp. v. Genmoora Corp., 888 F.2d 345 (5th Cir. 1989) in which the Fifth Circuit held that the district court abused its discretion in not granting Xerox's Rule 56(f) motion for continuance. According to Caswell, he was precluded from filing a sufficient response to FedEx's Motion for Summary Judgment, because FedEx thwarted the discovery process by wrongfully withholding a majority of vital and material documents and representing that the documents would eventually be produced.
Caswell further contends that the court was aware that discovery disputes were ongoing by virtue of the pleadings filed by him seeking assistance and guidance from the court in his Motion to Compel and Motion to Re-Open the Discovery Period. The court disagrees.
Despite Caswell's assertions, the court does not believe a Rule 56(f) continuance is not justified in this case. The mere assertion that discovery is incomplete is insufficient to satisfy Rule 56(f). Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). As the party seeking a continuance, Caswell had the burden of (1) identifying precisely what discovery was sought; (2) explaining how the additional discovery would help him meet his burden in opposing summary judgment; and (3) demonstrating that he had diligently pursued discovery. Caswell has failed to meet any of these requirements. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1396 (5th Cir. 1994).
Regarding the first and second requirement, Caswell submitted his affidavit and the affidavit of his attorney, Sal Siddiqi ("Mr. Siddiqi"). The affidavits are identical for the most part with respect to the assertions made in support of a continuance, and state in pertinent part as follows;
I need additional time to secure documents already requested from defendant, as well as time to request additional documents not previously requested. The documents which were already requested have never been produced, despite repeated assurances from defendants that they "would be produced." Further, these documents are relevant and material to this case because they will establish that defendant has treated similarly situated employees in a discriminatory and disparate manner. I have been unable to secure the documents earlier although I diligently used the discovery process.
I cannot procure this information from any other source.
I request a continuance and that the discovery period be re-opened. This request is not for delay only, but so that justice may be done.
By this this vague assertion, Caswell has failed to explain what documents he seeks or how the discovery sought would allow him to defeat FedEx's motion for summary judgment. In other words, Caswell has failed articulate with "any degree of specificity how additional discovery will create a material fact issue." Id. The present case is therefore distinguishable from Xerox. Moreover, the new discovery alluded to relates to information that was revealed during Plaintiff's own deposition taken on January 30, 2002 at the end of the discovery period; information that Plaintiff could have, and should have, provided his lawyer two years ago when he filed the suit. For Caswell to now claim that he recently became of aware of new witnesses as a result of FedEx deposing him strains credulity. Moreover, it is not incumbent on an adverse party to educate an opponent about his own case.
As for the third requirement, evidence that Caswell diligently pursued discovery is conspicuously lacking. Caswell brought this action over two years ago in August of 2000. On November 13, 2000, Caswell served one set of interrogatories and one set of requests for production on FedEx. Shortly thereafter, FedEx served its answers and objections to Caswell's interrogatories and requests for production. On January 12, 2001, FedEx supplemented its responses and produced documents requested by Caswell. With full knowledge of FedEx's discovery responses and objections, Plaintiff waited more than a year to file his Motion to Modify Scheduling Order and Motion to Compel. Notably, he did not file his Motion to Modify Scheduling Order until 30 days after the discovery period closed and did not file his Motion to Compel until three months after the discovery period closed. His excuse for failing to file a timely motion to compel is that he wanted to resolve the discovery dispute without court intervention and attempted to do so through correspondence with FedEx. FedEx, on the other hand, contends that prior to Caswell's motion, Caswell neither disputed the sufficiency of FedEx's responses and objections to his written discovery nor requested by letter, or verbally, that FedEx provide additional responses or documents. Whatever the case, Caswell's explanation is unsubstantiated, as there is nothing in the record to support it. The court therefore declines to consider the explanation in its analysis.
In its response to Caswell's Motion to Compel, FedEx acknowledges that it received a one-page letter from Caswell that was dated March 11, 2002, but contends that Caswell "failed to set forth any particular concerns he had with FedEx's Responses to Request for Production and did not even mention FedEx's Answers to Interrogatories." Caswell did not submit this letter as evidence, and it is not available for the court to review. Even if it was, it would not be evidence of Caswell's diligence, because the letter was written after the dispositive motion deadline and more than 30 days after the discovery period closed. In fact, Caswell waited until after FedEx filed its Motion for Summary Judgment before writing and forwarding the letter to FedEx.
What is clear from the record, though, is that other than serving one set of written interrogatories and requests for production, Caswell did not conduct any meaningful discovery between November 13, 2000 and February 4, 2002, the discovery deadline. He took no depositions. To make matters worse, he waited 107 days after FedEx filed its summary judgment motion to file his Rule 56(f) motion for continuance. His excuse that he did not file a timely response, because he was waiting for the court to rule on his Motion to Modify Scheduling Order, is unacceptable. Moreover, Caswell's total disregard for the court's Scheduling Order deadlines and Rules of Federal Procedure is unfathomable. While Rule 56(f) motions are generally favored and liberally granted, the court "need not aid non-movants who have occasioned their own predicament through sloth." Witchita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992). The court therefore finds that Caswell's actions, or lack thereof establish that he has not diligently pursued discovery. Based on this and the court's other findings, the court denies Caswell's Request for Continuance and Request to Re-Open Discovery Period. For the same reasons, Caswell's Motion to Compel FedEx to Respond to Caswell's Interrogatories Request for Production and Caswell's Motion to Modify Scheduling Order are denied. In the interest of justice, however, the court will consider Caswell's untimely response to FedEx's Motion for Summary Judgment.
The court's amended Scheduling Order expressly required that all discovery be completed by February 4, 2002, which would enable the parties to file any dispositive motions by March 4, 2002. If the court were to accept Caswell's attorney's reasoning that a party can disregard a Scheduling Order anytime there is a pending motion, then either party could easily disrupt the course of litigation by simply filing a motion the day before a scheduled deadline, and the Scheduling Order would in effect serve no purpose. To the contrary, scheduling orders serve an important purpose in federal litigation in that they enable district courts to control and expedite the discovery process, see Fed.R.Civ.P. 16(b), and consistent with the authority given to district courts under Rule 16(b), courts have "broad discretion" to enforce their scheduling orders. See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) ("[O]ur court gives the trial court `broad discretion to preserve the integrity and purpose of the pretrial order.'" (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)). Moreover, Rule 16(f) specifically authorizes the court to sanction a party for failing to comply with its scheduling order. See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 509 (5th Cir. 1999). Here, Caswell's attorney not only failed to adhere to the court's Scheduling Order, but also failed to provide a satisfactory justification for his dilatory conduct and disregard for the deadlines set forth in the court's amended Scheduling Order. Although the court could impose sanctions, it declines to do so given the disposition of the matters herein.
In his motion, Caswell also sought to continue the trial date to December 1, 2002. This issue, however, was mooted when the court vacated the June 3, 2002 trial setting in its May 14, 2002 order.
III. Summary Judgment A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B. Analysis
In his complaint, Caswell alleged that: (1) he was discriminated on the basis of his race, color, national origin, gender, and sex, because he was discharged for falsifying delivery records while other Caucasian employees (Craig Vocik, Allison Anderson, and Karen Bowman) were not; (2) FedEx's reason for discharging him are pretextual in nature; (3) FedEx's policies and practices for disciplining and investigating suspected violations of company rules and policies operate to unlawfully deny African-Americans and men equal employment opportunities because of their race and gender; and (3) as a result of discriminatory remarks made by certain FedEx managers, Caswell was "subjected to a systematic and pattern of discriminatory animus by [D]efendant."
FedEx denies Caswell's allegations and contends that it is entitled to summary judgment, because there is no genuine issue of material fact that Caswell's employment was terminated on the basis of his race, color, national origin, gender, or sex, and there is no evidence of disparate impact or treatment. Specifically, FedEx argues that: (1) Caswell failed to exhaust administrative remedies on his claims of gender, sex, and national origin discrimination; (2) the allegedly discriminatory remarks made by FedEx managers are time-barred; (3) Caswell failed to establish a prima facie case of discrimination; (4) Caswell failed to establish that FedEx's reason for terminating his employment was a pretext; and (5) Caswell failed to present any evidence of disparate impact or treatment.
1. Failure to Exhaust Administrative Remedies
FedEx first contends that Caswell cannot assert a claim for sex, gender, or national origin discrimination, because he only alleged race discrimination in his EEOC charge. The court agrees.
It is undisputed that on his EEOC charge of discrimination, Caswell checked only the "Race" box and did not check "Sex," "Gender," or "National Origin." The question therefore is whether Caswell's discrimination claims for sex, gender, and national origin are sufficiently related to his race discrimination claim in the EEOC charge. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994). After reviewing the facts in this case, the court concludes that Caswell's sex and gender discrimination claims are not sufficiently related to his race discrimination. See Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). Thus, Caswell may not rely on his sex and gender claims as a basis for relief, and FedEx is entitled to summary judgment on these claims.
With respect to Caswell's national origin discrimination claim, FedEx acknowledges that this court, in Oyoyo v. Baylor Health Network, Inc., No. Civ.A. 3:99-CV-0569-L, 2000 WL 655427, at *3 (N.D. Tex., May 17, 2000), found that a claim of national origin discrimination was sufficiently similar to race discrimination. FedEx, however, contends that Caswell cannot prevail on his claim of national origin discrimination even if the court concluded that his national origin claim is sufficiently similar to his race discrimination claim, because when questioned during his deposition about the basis of his national origin discrimination, Caswell responded, "African-American." He further stated that both he and his parents were born in the United States. FedEx therefore maintains that Caswell was confusing national origin with race, and there is no summary judgment evidence to support his claim of national origin discrimination. The court agrees.
National origin, though often confused with race, refers to "the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farrah Mfg. Co., 414 U.S. 86, 88 (1973). Based on Caswell's deposition testimony that he was discriminated against because of his national origin (African-American), and his testimony that he and his parents were born in the United States, the court finds that Caswell's race and national origin claim is so closely related that a separate claim for national origin would merely duplicate his race claim. See Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. 1981). For this reason, the court concludes that Caswell's national origin discrimination claim is not a separate and distinct claim.
Even if the court considered the national origin claim to be separate and distinct from his race discrimination claim, it would still fail as a matter of law, because Plaintiff, in responding to Defendant's Motion for Summary Judgment, failed to present either direct or indirect evidence that he was discriminated on the basis of his national origin or color. See Rizzo v. Children's World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996) ("A plaintiff can prove discrimination in two ways, either `by direct evidence or by an indirect or inferential method of proof. Discrimination can be shown indirectly by following the `pretext' method of proof set out in McDonnell Douglas."). Caswell therefore failed to raise a genuine issue of material fact regarding the national origin claim, and FedEx is entitled to judgment as a matter of law. Accordingly, the court grants FedEx's summary judgment motion on Caswell's claims of gender, sex, and national origin discrimination.
2. Discriminatory Remarks Made by FedEx are Time-barred.
FedEx next contends that the allegedly discriminatory remarks made by FedEx are time-barred. The court again agrees. A Title VII plaintiff in Texas must file a charge of discrimination within 300 days of learning of the conduct alleged. § 2000e-5(e)(1); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998); Messer v. Meno, 130 F.3d 130, 134 n. 2 (5th Cir. 1997), cert. denied, 525 U.S. 1067 (1999). A plaintiff's claim accrues when he or she knows or reasonably should know that the discriminatory act has occurred. Merrill v. Southern Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986). Caswell filed his EEOC charge on February 8, 2000. Accordingly, alleged discrimination based on occurrences or remarks made prior to April 15, 1999 are outside of the 300-day period and is barred by the statute of limitations.
FedEx's calculation is more generous in that it contends that the operative date for limitations purposes is April 9, 1999. For the reasons stated herein, Plaintiff's claims are barred under either date.
Caswell does not directly dispute FedEx's argument that the allegedly discriminatory remarks made by FedEx are time-barred. Instead, Caswell contends he was "subjected to a systematic and pattern of discriminatory animus by [D]efendant." For support, Caswell cites the following remarks made by two of Caswell's managers:
(1) I don't care if this is after-hours, you better stop wearing your hat backwards like some gangster. Else I'm gonna have to write you up. I don't wanna have any more problems with you people.
(2) How can a man like you afford to drive a car like that? I'm a manager and don't drive such a fancy car. How are you gonna pay for your car if you lose your job?
By this, Plaintiff appears to argue that the remarks are part of a continuing violation. Defendant argues the contrary; that the remarks are discreet and not part of a continuing violation.
In his complaint, Caswell also alleged he suffered discriminatory treatment based on his gender or sex when former manager Matt Palacio asked him to switch tasks with a female employee by unloading packages instead of sorting letters. According to FedEx, the incident Caswell refers to occurred in November of 1997 and is also time-barred. Having already decided against Caswell on his sex and gender discrimination claims, the court need not address this issue.
The continuing violation theory relieves a plaintiff of showing that all of the complained-of acts fall within the limitations period where a series of related acts, one or more of which falls within the limitations period, can be shown. Huckabay, 142 F.3d at 238; Messer, 130 F.2d at 134-35. A plaintiff, who pursues a continuing violation theory, must demonstrate more than a series of discriminatory acts. Huckabay, 142 F.3d at 239. He must show an organized scheme leading to a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the claim. Id., Messer, 130 F.3d at 135; Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir. 1985). Several factors may be involved in evaluating a continuing violation claim, including (1) whether the alleged acts involve the same type of discrimination; (2) frequency of the acts, meaning whether they are recurring or "more in the nature of an isolated work assignment or employment decision;" and (3) whether the act has a degree of permanence that should trigger the employee's awareness of the need to assert her rights. Huckabay, 142 F.3d at 239.
In this case, Caswell neither alleged in his Complaint nor presented evidence in his response to Defendant's Motion for Summary Judgment to show when the remarks were made or by whom they were made. After reviewing the record, the court, nevertheless, concludes that the remarks were made by two different managers, and that neither of the managers had anything to do with the ultimate decision to terminate Caswell's employment. The court therefore declines to find that these remarks were related to Caswell's claim that he was terminated on the basis of race. Accordingly, the continuing violation theory does not apply to Caswell's claims regarding these remarks, and the applicable limitations date is April 15, 1999.
Relying on Caswell's deposition testimony, FedEx maintains that the first remark was made by Kristy Marr ("Marr"), Caswell's former manager, prior to November 1998. The court agrees that the record establishes that this remark was made by Marr prior to November 1998, and Plaintiff has presented no evidence to rebut Defendant's contention that the remark is time-barred. Plaintiff therefore failed to raise a genuine issue of material fact to demonstrate that any discriminatory conduct based on Marr's remark is not time-barred. Accordingly, summary judgment in favor of FedEx with respect to Marr's remark is appropriate.
Regarding the second remark, FedEx, relying again on Plaintiff's deposition testimony, contends that this remark was made by manager Bobby Williams ("Williams"). Defendant further contends that the remark must have been made around June of 1998, because although Caswell could not recall when Williams allegedly made the remark, he testified that it was either while Palacio was senior manager or shortly thereafter. FedEx therefore reasons that "[s]ince Couch took over as senior manager in June 1998, this comment, too, would be time-barred."
The court agrees that Caswell's deposition testimony establishes that the remark was made by Williams. FedEx, however, points to no evidence to support its conclusion quoted above, that is, there is no evidence to show when Palacio was senior manager or when Couch took over as senior manager in June 1998. The court, nevertheless, finds that FedEx is entitled to summary judgment, because Caswell failed to come forward with competent summary judgment evidence to rebut FedEx's contention that any claim of discrimination based on the remark is time-barred. As a result, he failed to raise a genuine issue of material fact, making summary judgment appropriate.
3. Prima Facie Case of Discrimination
Under the applicable burden-shifting paradigm for Title VII race discrimination claims, Caswell must establish a prima facie case of discrimination; FedEx must then articulate a legitimate, nondiscriminatory reason for its action; and finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage" and Caswell must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). To establish a prima facie case of discrimination under Title VII, a plaintiff may prove his claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas. The McDonnell Douglas test requires the plaintiff to show: (1) he was a member of a protected class, (2) he was qualified for the position she lost, (3) he suffered an adverse employment action, and (4) that others similarly situated were more favorably treated. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); Ward v. Bechtel, 102 F.3d 199, 202 (5th Cir. 1997).
The burden shifting analysis prescribed in McDonnell Douglas for employment discrimination claims is also applicable in suits brought under § 1981. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
FedEx contends that Caswell cannot prevail on either his Title VII or § 1981 claim that he was discriminated against on the basis of his race, because he failed to establish a prima facie case of discrimination. FedEx does not dispute that Caswell can satisfy the first three elements, but argues there is no evidence of the fourth element, that is, there is no evidence Caswell was treated differently than other similarly situated Caucasian employees. A plaintiff may prove discrimination either by direct evidence or by inferential or indirect proof. Rizzo, 84 F.3d at 762. In his complaint, Caswell alleged that three Caucasian employees (Craig Volcik, Allison Anderson, and Karen Bowman) were not discharged after falsifying delivery records. As FedEx points out, however, Caswell's deposition testimony establishes that he did not know either Allison Anderson or Karen Bowman, and that he only learned of these employees through another FedEx employee, who worked at the company's Addison, Texas station. FedEx therefore argues that the hearsay testimony of this employee is insufficient to raise a genuine issue of material fact that Caucasian employees were treated differently, that is, not fired for falsifying delivery records. The court agrees. Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 510 (5th Cir. 2001) (hearsay statements are not competent summary judgment evidence).
Plaintiff did not present an affidavit by the Addison employee or other competent summary judgment to rebut FedEx's contention, and merely asserted that his failure to come forward with summary judgment evidence was due to his inability to secure relevant documents related to this issue despite his diligence. The court need not rehash its previous ruling that Caswell failed to diligently pursue discovery. Accordingly, the court concludes that Plaintiff's conclusory assertions that he was discharged because of his race are insufficient to defeat FedEx's motion for summary judgment on this ground. The court therefore need not address FedEx's alternative argument that "[e]ven assuming, arguendo, that Caswell could establish a prima facie case, his claim of discriminatory discharge" must nevertheless fail, because he cannot establish that FedEx's reason for firing him (falsification of delivery records) was a pretext for discrimination.
In its motion, FedEx acknowledged that unlike Caswell, Craig Volcik ("Volcik") was written up for falsifying records rather than being fired. FedEx, however, provided evidence to establish that this incident occurred in October 1998, several months before Rebholz issued the zero tolerance memorandum in August 1999. The incident with Caswell, on the other hand, occurred a month and a half after he acknowledged in writing that he had received Rebholz's memorandum. FedEx therefore argues, and the court agrees, that Caswell and Volcik were not similarly situated.
4. Disparate Impact and Treatment
FedEx argues that Caswell cannot prevail on his claim of disparate impact, because there is no evidence that FedEx's practices and policies fell more harshly on African-Americans.
A disparate impact claim arises when an employer's otherwise neutral policy has a "significantly disproportionate impact" on a protected class. § 2000e-2(k)(1)(A)(i); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). To establish a prima facie case of disparate impact, a plaintiff must (1) identify the challenged employment practice or policy; (2) demonstrate a disparate impact on a group that falls within the protective ambit of Title VII; and (3) demonstrate a causal relationship between the identified practice and the disparate impact. Gonzales v. City of New Braunfels, 176 F.3d 834, 839 n. 26 (5th Cir. 1999). Disparate impact claims do not require proof of intent to discriminate. Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.), cert. denied, 531 U.S. 812 (2000). Instead, they focus on facially neutral employment practices that create such statistical disparities disadvantaging members of a protected group that they are "functionally equivalent to intentional discrimination." Id. (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988)). Disparate impact claims may be brought by individual plaintiffs or as a class action. Munoz, 200 F.3d at 299. In either case, however, the evidence must focus on the degree of statistical disparity between protected and non-protected workers, and the burden is on the plaintiff to conduct a systemic analysis of those employment practices and present evidence in order to establish their case.
Here, Caswell presented no statistical evidence that FedEx's employment practices stemming from Rebholz's memorandum disparately impacts African Americans. Rather, Caswell complains that he alone was singled out and terminated because of his race. Thus, FedEx maintains, and the court agrees, that Caswell's claim is actually one of disparate treatment rather than disparate impact.
The court, nevertheless, concludes that Caswell's claim of disparate treatment has no merit. Caswell argues that he was fired because of his race, but all of the evidence in the record indicates otherwise; that is, he was fired for falsifying delivery records in violation of the policy set forth in Rebholz's memorandum and not because of his race. Caswell believes that he was because of his race; however his subjective belief that he was fired because of his race is insufficient to create an inference of FedEx's discriminatory intent. Lawrence v. Univ. of Texas Medical Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999). Plaintiff therefore failed to raise a genuine issue of material fact on his disparate impact and disparate treatment claims, and FedEx is entitled to judgment as a matter of law.
IV. Conclusion
For the reasons stated herein, Plaintiff's Motion to Modify Scheduling Order is denied; Plaintiff's Motion to Compel FedEx to Respond to Plaintiff's Interrogatories Request for Production is denied; Plaintiff's Request for Continuance and Request to Re-Open Discovery Period is denied; Defendant's Motion for Summary Judgment is granted; and this action against FedEx is dismissed with prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.