Opinion
Civil Action No. 3:97-CV-3186-L.
May 25, 2000.
MEMORANDUM OPINION AND ORDER
Before the court are Defendant Associates Corporation of North America's ("ACONA") Motion to Dismiss for Failure to State a Claim and Motion for Summary Judgment ("ACONA's First Motion to Dismiss and Motion for Summary Judgment"), filed February 17, 1998; and Defendants ACONA and Associates Financial Services Company, Inc.'s ("AFSCI") Motion to Dismiss for Failure to State a Claim ("Defendants' Joint Motion to Dismiss"), filed February 11. 1999. Upon consideration of the motions, responses, replies, summary judgment evidence, and the applicable law, the court grants ACONA's Motion for Summary Judgment and grants Defendants' Joint Motion to Dismiss. I. Procedural and Factual Background
Defendant ACONA submitted its First Motion to Dismiss and Motion for Summary Judgment in a single document. After Plaintiff amended his complaint, Defendants filed their Joint Motion to Dismiss, which addresses the same claims and raises the same arguments as those presented in ACONA's First Motion to Dismiss. As Defendant ACONA's First Motion to Dismiss is subsumed in Defendants' Joint Motion to Dismiss, ACONA's First Motion to Dismiss is hereby denied as moot.
This joint motion should have been filed as a partial motion to dismiss, as it seeks dismissal only of Plaintiff's claims under 42 U.S.C. § 1983 and 1985(3). The motion does not seek dismissal of Plaintiff's claims under Title VII and 42 U.S.C. § 1981, or Plaintiff's state law claim of defamation.
Plaintiff Cecil Paul Chester ("Plaintiff") brings this action against ACONA, a corporation with its headquarters in Dallas, Texas and AFSCI, a corporation with its headquarters in Irving, Texas. Plaintiff alleges that Defendants discriminated against him on the basis of his race, African-American, when he was denied a promotion in May 1997. Plaintiff also alleges that he was retaliated against and constructively discharged from his employment with ACONA or AFSCI after he complained of Defendants' pattern of racial harassment and discrimination.
The court will use the word "Defendants" to refer to ACONA and AFSCI collectively, unless otherwise indicated.
Plaintiff asserts that he was employed by both Defendants. While AFSCI admits that it was Plaintiff's employer, this assertion is hotly contested by Defendant ACONA who contends that it was not Plaintiff's employer. This issue is raised in ACONA's Motion for Summary Judgment and will be addressed later in this opinion.
Plaintiff began working for Defendants in January 1991, and was initially assigned to the Asset Management Division of AFSCI's Collection Department. In April 1997, Plaintiff and Jim Lawler, a white male, were considered for the position of Management Team Leader of the Asset Management Division. Mr. Lawler ultimately received the promotion although, according to Plaintiff, he did not have the requisite job credentials to warrant the promotion. Plaintiff alleges that although he voiced his concerns about the promotion to the "administration," no one would meet with him to discuss or address those concerns.
Although Plaintiff alleges in his Amended Complaint that he began working for Defendants on January 27, 1997, the court assumes that this is a typographical error because he states in his Affidavit that he began working for ACONA on January 27, 1991. See Affidavit of Cecil Paul Chester, attached to Plaintiff's Response to ACONA's Motion to Dismiss for Failure to State a Claim and Brief in Support Thereof, Motion to Deny Summary Judgment. Moreover, according to Carol Phillips, Director of Human Services for ACONA, Plaintiff began working for AFSCI on January 28, 1991. See Affidavit of Carol Phillips at p. 2, Exhibit A to Defendant ACONA's First Motion to Dismiss and Motion for Summary Judgment. Based on the statements contained in Plaintiff's Affidavit and Ms. Phillips' Affidavit, the court concludes that Plaintiff began his employment in January 1991.
The court is unclear what Plaintiff means by the term "administration" but assumes that Plaintiff intends to describe Defendants' management level officials, or individuals in the personnel or human resources department.
On or about May 23, 1997, Plaintiff filed a Charge with the Equal Employment Opportunity Commission ("EEOC") alleging that AFSCI had discriminated against him by denying him a promotion. On September 29, 1997, the EEOC dismissed the Charge and notified Plaintiff of his right to sue. According to Ms. Phillips, Plaintiff's employment with AFSCI terminated in October 1997.
Plaintiff initially filed suit against ACONA on December 29, 1997. By order dated February 1, 1999. Plaintiff was allowed to amend his complaint and added Defendant AFSCI as an additional party. Plaintiff's Amended Complaint ("Plaintiff's Complaint") asserts causes of action against Defendants under Title VII. 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, 1983, 1985(3), and Texas common law. Defendant ACONA now moves to dismiss Plaintiff's claims under 42 U.S.C. § 1983 and 1985(3) pursuant to Fed.R.Civ.P. 12(b)(6), and moves for summary judgment on Plaintiff's claims under Title VII and 42 U.S.C. § 1981. Defendant AFSCI moves to dismiss Plaintiff's claims under 42 U.S.C. § 1983 and 1985(3) pursuant to Fed.R.Civ.P. 12(b) (6).
Although Plaintiff states in his Complaint that he alleges causes of action under Texas common law, the Complaint wholly fails to assert a cause of action under state law. Plaintiff merely mentions a "claim of defamation." Plaintiff's Complaint at p. 1. Under his four causes of action, Plaintiff neither mentions any claim under Texas common law nor sets forth any facts within his Complaint that constitute defamation.
II. Legal Standards A. Summary Judgment
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 Plaintiff's opposition to Defendants' motion. Id., 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. Motion to Dismiss — Rule 12(b)(6)
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id. The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
III. Analysis A. ACONA's Motion for Summary Judgment
ACONA moves for summary judgment on Plaintiff's claims under Title VII and 42 U.S.C. § 1981, contending that it was never Plaintiff's employer and, therefore, he cannot recover on these claims. In support of this contention, ACONA submits the Affidavit of Carol Phillips, Director of Human Resources for ACONA. According to Ms. Phillips, ACONA is the management company for AFSCI and is not involved in the day-to-day personnel matters of AFSCI or decisions made by AFSCI concerning hiring, termination, or other employment decisions. Ms. Phillips also states that after reviewing Plaintiff's personnel file, she determined that he performed services for, and was on the payroll of, AFSCI from the date of his hire on or about January 28, 1991 until on or about October 1, 1997. See Affidavit of Carol Phillips at pp. 1-2, Exhibit A to Defendant ACONA's First Motion to Dismiss and Motion for Summary Judgment. ACONA also submits a copy of Plaintiff's Charge of Discrimination naming AFSCI as the employer who Plaintiff contends discriminated against him when he was denied a promotion to the position of Team Leader on or about May 8, 1997. See Exhibit I attached to the Affidavit of Janet M. Smith, Exhibit B to Defendant ACONA' s First Motion to Dismiss and Motion for Summary Judgment.
Plaintiff responds that ACONA was Plaintiff's employer and, in support of this argument, submits his Notice of Right to Sue from the EEOC dated September 29, 1997, which was copied to Ms. Laurie R. Jones, attorney for ACONA. According to Plaintiff, that the EEOC copied ACONA's attorney proves that ACONA is the correct entity sued since "[t]he EEOC would not send correspondence of this magnitude to a representative who has nothing to do with the particular suit." Plaintiff's Response to Defendant's First Motion to Dismiss at ¶ D. 1. The court, however, finds this argument unpersuasive.
To recover under Title VII, Plaintiff must first establish that ACONA was his employer. ACONA has presented competent summary judgment evidence that it was never Plaintiff's employer. Plaintiff presents no evidence to contradict ACONA's evidence that it was never Plaintiff's employer. Argument of counsel is not evidence, and the action of the EEOC in sending a copy of its correspondence to ACONA's counsel is simply too weak to support an inference that ACONA was Plaintiff's employer. Since Plaintiff has failed to present competent summary judgment evidence to raise a genuine issue of material fact that ACONA was his employer, ACONA is entitled to judgment as a matter of law.
ACONA also moves for summary judgment on Plaintiff's claim under 42 U.S.C. § 1981. ACONA argues that because Plaintiff's § 1981 claims and the applicable contract under § 1981 are based on Plaintiff's alleged employment relationship with ACONA, and since no such employment relationship existed, Plaintiff cannot establish that he had a right to "make and enforce contracts" with ACONA. As Plaintiff does not address this argument, the court finds that no genuine issue of material fact exists on this issue, and ACONA is entitled to judgment as a matter of law on this claim.
Moreover, since Plaintiff did not respond to ACONA's argument regarding the § 1981 claim, the court assumes that he no longer desires to pursue it and has abandoned it. See Scales v. Slater, 181 F.3d 703, 709 n. 5 (5th Cir. 1999).
For the reasons previously stated, the court concludes that there is no genuine issue of material fact present in the record with respect to Plaintiff's claims against ACONA under Title VII and 42 U.S.C. § 1981 and ACONA is entitled to judgment as a matter of law. Accordingly, Plaintiff's claims against ACONA under Title VII and 42 U.S.C. § 1981 must be dismissed.
As the court has determined that ACONA is not Plaintiff's employer, it will not address ACONA's second argument that Plaintiff's claims against it should be dismissed because Plaintiff failed to properly exhaust his administrative remedies with respect to ACONA.
B. Defendants' Joint Motion to Dismiss 1. Plaintiff's § 1983 Claim
Defendants seek dismissal of Plaintiff's claims under 42 U.S.C. § 1983, contending that Plaintiff has failed to allege that Defendants are "state actors," and that they are in fact private corporations. Therefore, according to Defendants, Plaintiff's claims under 42 U.S.C. § 1983 should be dismissed. Plaintiff responds that Defendants are "state actors" because they own and operate a business pursuant to Texas law and the Texas Constitution. As Defendants are operating their business "under color of statute" of the State of Texas and because Defendants have deprived him of rights secured by the United States Constitution and the Texas Constitution, Plaintiff argues that he is entitled to pursue his claims against Defendants under 42 U.S.C. § 1983.
To state a claim under 42 U.S.C. § 1983, Plaintiff must allege facts which show 1) that he has been deprived of a right secured by the Constitution and the laws of the United States and 2) the deprivation occurred under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hospital, 180 F.3d 234, 241 (5th Cir. 1999). "Because the Fourteenth Amendment protects liberty and property interests only against invasion by the state, a [ §] 1983 plaintiff alleging the deprivation of Due Process under the Fourteenth Amendment must also show that state action caused his injury." Bass, 180 F.3d at 241. Therefore, the threshold inquiry in any § 1983 action is whether there was any intentional involvement of a state actor. Yeager v. City of McGregor, 980 F.2d 337, 339 (5th Cir.), cert. denied, 510 U.S. 821 (1993). In general, the terms "under color of state law," found in the text of 42 U.S.C. § 1983, and "state action," which is required under the Fourteenth Amendment, are perceived as alternative ways of expressing the same legal principle. Greco v. Orange Mem'l Hosp. Corp., 513 F.2d 873, 877 n. 7 (5th Cir.), cert. denied, 423 U.S. 1000 (1975).
Defendants move for summary judgment on Plaintiff's § 1983 claim, arguing that they are not state actors, and thus there was no state action giving rise to Plaintiff's claim. Plaintiff concedes that Defendants are private corporations, but argues that Defendants' actions were taken under color of state law because they own and operate a business pursuant to the laws of the State of Texas.
Private action may be viewed as state action only where the challenged conduct may be "fairly attributable to the State." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); Bass, 180 F.3d at 241. The fair attribution test has two parts:
First, the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.Lugar, 457 U.S. at 937. Having reviewed Plaintiff's Amended Complaint in detail, the court concludes that Plaintiff has not stated a claim under 42 U.S.C. § 1983. While Plaintiff asserts that the actions taken against him were "under color of state law," Plaintiff alleges no facts which indicate that the state was in any way involved in Defendants' decision to deny him a promotion, or otherwise discriminate against him. The court is also unpersuaded by Plaintiff's argument that Defendants were acting under state law because they own and operate a business in the State of Texas. Plaintiff cites no authority for this proposition, and the court, in its research, has been unable to locate any which supports this proposition.
As articulated by the Fifth Circuit in Greco, "[a] state's involvement may be manifested in a number of multifarious ways. For example, the state may sanction or seek to enforce the claims of private parties (citations omitted), may give financial assistance to private institutions (citations omitted), may regulate the activities of private organizations (citations omitted), or may employ private parties to promote state interests (citation omitted)." 513 F.2d at 878-79. In some instances, the state may not be involved at all but "state action" nevertheless arises because a private entity has of its own volition assumed a state or public function. Id. at 878. In this case, Plaintiff alleges no facts which indicate the existence of state involvement in private conduct to justify the imposition of constitutional restraints upon Defendants. As such, Plaintiff's claims against Defendants under 42 U.S.C. § 1983 must be dismissed.
2. Plaintiff's § 1985(3) Claim
Defendants also seek dismissal of Plaintiff's claims under 42 U.S.C. § 1985 (3), contending that Plaintiff has failed to plead facts sufficient to support his claim of conspiracy. Plaintiff responds that he has pleaded sufficient facts to establish a claim for conspiracy under 42 U.S.C. § 1985 (3). The court disagrees.
Although Plaintiff was granted leave to amend his Complaint, he did not amend or seek to amend his § 1985(3) claim. Therefore, based on Plaintiff's belief that he has pleaded sufficient facts to establish a claim for conspiracy and his failure to seek leave to amend his Complaint concerning his § 1985(3) claim, the court assumes that Plaintiff has pleaded his best case. Since Plaintiff has had a fair opportunity to either allege facts to establish a claim against Defendants under § 1985(3) or request leave to amend, he is not entitled to plead further on this claim. See Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985).
To state a claim under 42 U.S.C. § 1985 (3), Plaintiff must allege: 1) a conspiracy involving two or more persons; 2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and 3) an act in furtherance of the conspiracy; 4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994) (citations omitted). Plaintiff must also show that the conspiracy was motivated by a class-based animus. Id. (citation omitted). The court has reviewed Plaintiff's Complaint in detail and finds that it wholly fails to allege any facts which would suggest that Plaintiff has been deprived of a right. For example, Plaintiff has not alleged sufficient facts to infer that an illegal agreement existed between two or more individuals to deprive him of equal protection of the laws or equal privileges and immunities under the laws in violation of § 1985(3). See Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994). Plaintiff's allegations are conclusory at best, and therefore fail to state a claim upon which relief can be granted. See Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5tb Cir. 1982) (Mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss). Because Plaintiff has failed to allege facts which state a claim for conspiracy, his claims under 42 U.S.C. § 1985 (3) must be dismissed.
IV. Conclusion
For the reasons previously stated, Defendant Associates Corporation of North America's Motion for Summary Judgment is granted, and Plaintiffs' claims against ACONA under Title VII and 42 U.S.C. § 1981 are dismissed with prejudice. Defendants Associates Financial Services Company, Inc. and Associates Corporation of North America's Motion to Dismiss for Failure to State a Claim is granted, and Plaintiffs' claims against Defendants under 42 U.S.C. § 1983 and 1985(3) are dismissed with prejudice. The remaining claims for trial are Plaintiff's Title VII and § 1981 claims against AFSCI, and Plaintiff's state common law claim of defamation against ACONA and AFSCI.