Summary
holding that a plaintiff who, among other things, failed to attend a mandatory meeting, was properly terminated
Summary of this case from Harris-Childs v. Medco Health Solutions, Inc.Opinion
No. 3:01-CV-2321-P
April 15, 2003
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendants' Motion for Summary Judgment, filed January 31, 2003, with no response to the Motion from Plaintiffs. After a thorough review of the evidence, the parties' briefs, and the applicable law, for the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment.
BACKGROUND
This case involves a dispute between Plaintiff Joel Colbert ("Plaintiff" or "Colbert") and Lone Star Park at Grand Prairie, Lone Star Race Park Management Corporation, and Trammell Crow Interest Company ("Defendants"). Plaintiff began working for Defendants on or about October 10, 1996. Amended Cmplt. at 4. Plaintiff alleges that his employment evaluation forms and performance reviews reflect that prior to his termination, he was an excellent employee and that he performed well with Defendants' company. Id. Prior to his termination, Plaintiff was employed as a Cleaning Services Supervisor at Lone Star Park at Grand Prairie, which was operated by Lone Star Race Park, Ltd. D's MSJ Supporting Brief at 1. Plaintiff was terminated by Defendants on or about October 8, 2000. Amended Cmplt. at 4. Defendants' stated reasons were job abandonment and Colbert's alleged insubordination. Id. Plaintiff disputed these allegations, and further alleged that he attempted to meet with management to discuss these matters in accordance with established company policy, but despite several attempts, management failed and refused to meet with Plaintiff following his termination. Id.
Defendants claim that Colbert was discharged by his immediate supervisor Chris Blue ("Blue"), the Manager of Cleaning Services Department, as a result of numerous instances of poor work performance and insubordination over a several month period. D's MSJ Supporting Brief at 10. Defendants claim that on July 14, 2000, Colbert failed to attend a mandatory supervisor's meeting. Id. Colbert failed to submit weekly schedules as required by Blue, and Colbert exhibited poor management of the scheduling in his department, which often resulted in either staffing shortages or excess employee hours. Id. Colbert was told that he needed to get permission before placing supply orders, but he nonetheless ordered supplies without first getting Blue's permission. Id. Defendants allege that Colbert consistently exhibited inadequate performance in completing requested cleaning and maintenance tasks in a thorough and timely manner. Id. Also, on September 9, 2000, without checking with Blue to obtain permission, Colbert left work, and in doing so left the Pavilion, the area over which Colbert was in charge, shorthanded during a private event. Id. In a meeting on September 15, 2002, Colbert allegedly used inappropriate and abusive language and behavior toward Keith Moore, Manager of Operations and toward Blue. Id. Again, September 30, 2000 Colbert left work without Blue's permission, and in doing so, left the Pavilion shorthanded. Id. Finally, on October 1, 2000, without contacting Blue to inform him that he would be late, Colbert failed to report to work until several hours after his scheduled time. Id. October 8, 2000 Colbert was terminated.
Plaintiff states that he filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and that they found cause to believe that Plaintiff had been discriminated against by his former employer, and that the employer's previously stated reason for his termination was pre-textual. Plaintiff received his right to sue letter August 20, 2001, and filed his Complaint November 16, 2001, within 90 days of receipt of his right to sue letter. Id. at 3.
Defendants claim that Colbert's suit should be dismissed because he did not bring suit within 90 days of his receipt of the EEOC's right to sue notice. While the Original Complaint did not specify a date on which Colbert received the right to sue notice, the First Amended Complaint did include that Plaintiff received the right to sue notice August 20, 2001.
On January 15, 2003, this Court granted Defendant's Motion to partially dismiss Plaintiffs' First Amended Complaint. In this Order, the Court stated, "the only claim which Plaintiffs have properly pled is a claim pursuant to the ADEA." Colbert asserts a claim of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Colbert specifically complains that 1) he was not hired for the position of purchasing Manager because of his age, and (2) that he was discharged from his position of Pavilion Cleaning Services Supervisor because of his age. The Court will now address Defendant's Motion for Summary Judgment.
DISCUSSION
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and 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 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. at 323. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Industries, Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. Mbank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1999); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 39019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. Lone Star Race Park Management Corporation
To sue under the ADEA, the Plaintiff must establish that an employment relationship existed, that the defendant was his or her employer. Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 118-19 (5th Cir. 1993). Colbert was employed by Lone Star Race Park, Ltd., the entity that owned and operated Lone Star Park at Grand Prairie. Colbert was not employed by Lone Star Race Park Management Corporation. Because Colbert was not employed by Lone Star Race Park Management Corporation, the Court GRANTS Defendant's Motion for Summary Judgment as to these claims.
III. Age Discrimination
A. Legal Standard
It is unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's age." 29 U.S.C. § 623 (a)(1). According to the Fifth Circuit, the analytical framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to claims brought under the ADEA. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002.) The court articulated the elements of the prima facie case in the context of age discrimination: "(1) the plaintiff was discharged; (2) he was qualified for the position at issue; (3) he was within the protected class; and (4) he was replaced by someone younger or outside the protected group". Id. (citing Brown v. CSC Logic, Inc. 82 F.3d 651, 654 (5th Cir. 1996)).
After plaintiff articulates his prima facie case, the burden of production, rather than persuasion, shifts to the defendant to proffer a legitimate nondiscriminatory reason for its decision. Id. (citing McDonnell Douglas, 411 U.S. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981)). If the defendant meets its burden, the presumption of discrimination created by the prima facie case disappears, and the plaintiff is left with the ultimate burden of proving discrimination. Id. (citing St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 511-12 (1993)).
B. Colbert's Termination
Just as the Plaintiff in Eversly v. Mbank Dallas, 843 F.2d 172 (5th Cir. 1999) failed to respond to Defendant's Motion for Summary Judgment, Colbert likewise failed to file a response to Defendant's Motion for Summary Judgment. The Fifth Circuit in Eversly, upheld the District Courts decision to accept as undisputed the facts articulated in Defendant's Motion for Summary Judgment. If the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Id. at 173-74.
Assuming, arguendo, that Plaintiff's Complaint did articulate a prima facie case for discrimination, Defendant provided more than adequate information to show that Defendant had a legitimate and non-discriminatory reason for firing Colbert. As outlined more specifically above, Defendants determined that Colbert's employment should be terminated because his performance was unacceptable. Colbert engaged in poor management of his department, failed to attend a mandatory supervisor s meeting, did not perform tasks that he had been instructed to do by his boss, and arrived late for and left early from work. Therefore, because Defendant had a legitimate and non-discriminatory reason for terminating Colbert's employment, Defendants' Motion for Summary Judgment is GRANTED as to Colbert's discriminatory discharge claim.
C. Failure to Promote
Colbert alleges that he was passed over for the position of Purchasing Manager in favor of someone younger. Defendant contends that Colbert cannot establish that he was denied the position because of his age. Furthermore, Defendant claims that Plaintiff failed to assert in his EEOC charge that he was unlawfully passed over for a position, precluding him from asserting this claim in this lawsuit because he failed to exhaust his administrative remedies.
Courts do not have jurisdiction to consider claims brought under the ADEA unless the aggrieved party has first exhausted his administrative remedies by filing a charge with the EEOC. 29 U.S.C. § 626(d); Williams v. Simmons Co., 185 F. Supp.2d 665, 680-81 (N.D. Tex. 2001) (citing National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994) and Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994)). Neither the verbatim allegations of the EEOC charge nor the actual scope of the EEOC's investigation will determine the limits of a plaintiffs civil complaint. Clark, 18 F.3d at 1280. Courts instead look at all of the information presented to the EEOC and determine what allegations would reasonably be expected to grow from the EEOC investigation. Id. However, discrimination claims made in a civil action must be "like or related to the Charge's allegations" in order to survive dismissal. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
A decision to discharge an employee and a decision not to hire that employee for a different position are separate and distinct events. Chester v. American Tel. Tel., 907 F. Supp. 982, 987 (N.D. Tex. 1994). Thus, failure to hire and failure to promote claims, such as the claim asserted here by Colbert, are not reasonably related to a previously filed EEOC charge complaining only of a discriminatory discharge. Id. In his EEOC charge, the only adverse employment action Colbert complained of was that he was wrongfully discharged. D's App. at 159. Accordingly, the Court finds that Colbert did not exhaust his administrative remedies by first filing a complaint with the EEOC against Defendants for failure to promote. Consequently, the Court GRANTS Defendants' Summary Judgment Motion as to Colbert's claim of failure to promote.
CONCLUSION
Accordingly, after a thorough review of the evidence, the parties' briefs, and the applicable law, for the reasons set forth above, the Court GRANTS Defendants' Motion for Summary Judgment.