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holding that 18 U.S.C. § 4 does not grant a private right of action for a civil litigant to initiate a lawsuit under this statute
Summary of this case from Richardson v. AveryOpinion
Civil Action No. 3:03-CV-1433-L.
July 23, 2004
MEMORANDUM OPINION AND ORDER
Before the court are Defendant's Motion for Summary Judgment, filed November 26, 2003; Defendant's Objections to, and Motion to Strike Plaintiff's Response to Defendant's Motion for Summary Judgment, filed January 8, 2004; and Plaintiff's Objections, filed January 23, 2004. After careful consideration of the motion, response, reply, objections, record and applicable law, Defendant's Motion for Summary Judgment is granted; Defendant's Objections to, and Motion to Strike Plaintiff's Response to Defendant's Motion for Summary Judgment are denied as moot; and Plaintiff's Objections are denied as moot. I. Factual and Procedural Background
This is an employment discrimination and retaliation case. Plaintiff Wayne E. Furman ("Furman" or "Plaintiff") was employed by Defendant CompuCom Systems, Inc. ("CompuCom" or "Defendant") from February 14, 1999 until September 20, 2000. Furman's employment with CompuCom was at-will.
CompuCom's Director of Audit, John Sidwell ("Sidwell"), hired Furman as a Senior Auditor. As a Senior Auditor, Furman was responsible for developing policies, procedures and plans, and for conducting audits and fraud investigations, which included preparing a written report of his findings at the conclusion of the investigation. During his employment with CompuCom, Furman worked on approximately five to six investigations.
Specifically, on or about May 1, 2000, Furman was asked to investigate possible employee computer thefts from two of CompuCom's customers — Federal National Mortgage Association ("Fannie Mae") and Air Product Chemicals, Inc. ("Air Product"). Furman actively investigated these thefts. After several months, on or about August 10, 2000, Sidwell instructed Furman to conclude the Fannie Mae and Air Product investigations and finalize his reports. Sidwell believed that CompuCom's role in the investigations had been completed and that it was no longer cost-effective for Furman to continue to investigate the thefts. Furman followed Sidwell's instructions and contacted the necessary parties to inform them that he would no longer be conducting his investigations. On or about September 9, 2000, Furman completed his investigative reports on the Fannie Mae and Air Product thefts. CompuCom notified the appropriate authorities regarding these thefts and provided the name of its primary suspect, Hoard, in the Fannie Mae theft.
During his investigation of the Fannie Mae theft, Furman identified one of CompuCom's employees, Kevin Hoard, as the primary suspect. The primary suspects in the Air Product theft, however, had passed their polygraph examinations. Although implied, it is unclear from the record whether these individuals were no longer considered primary suspects upon passing their polygraph examinations or whether other suspects were ever identified.
During this same time, Sidwell received complaints regarding Furman from the Information Technologies ("IT") department, the Travel, Human Resources and Relocation ("Travel") department and his own department. The IT department complained regarding the number of calls Furman made to their department because the calls involved basic computer questions which indicated a lack of knowledge on the use of his software. Sidwell also received complaints from the Travel department. Specifically, the Travel department complained that Furman spent excessive amounts of their time trying to fit his personal travel plans into his business trips. Sidwell further received complaints regarding Furman from other Audit department employees, alleging that he lacked computer knowledge and communication skills and attempted to get other employees to do his work. Sidwell advised Furman of these complaints on several occasions and cautioned him to correct his behavior. In September 2000, the complaints continued, and Sidwell decided to terminate Furman.
Two years later, on September 20, 2002, Furman filed this lawsuit against CompuCom in Texas state district court alleging wrongful termination in violation of public policy; breach of a confidential relationship; breach of an implied covenant not to terminate for an illicit reason; tortious interference with a contract of employment; and breach of the covenant of good faith and fair dealing. On October 8, 2002, CompuCom filed its answer. Furman amended his petition on March 24, 2003, adding a wrongful discharge claim pursuant to Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). On June 10, 2003, CompuCom filed special exceptions. On June 13, 2003, Furman again amended his petition, adding a claim for intentional infliction of emotional distress. On June 23, 2003, Furman filed his First Supplement to Plaintiff's Second Amended Original Petition in response to CompuCom's special exceptions in which he added a claim under the Age Discrimination in Employment Act ("ADEA"). The next day, CompuCom filed its First Amended Answer and Original Counterclaim. On June 27, 2003, CompuCom removed this action to federal district court pursuant to 28 U.S.C. § 1441, on the basis of federal question jurisdiction and diversity jurisdiction. On July 1, 2003, CompuCom filed its Motion for Partial Dismissal. In response, on July 24, 2003, Furman moved for leave to file his Third Amended Original Complaint, which the court granted the next day. In his Third Amended Original Complaint, Furman alleges claims of wrongful discharge; retaliation in violation of section 21.055 of the Texas Commission on Human Rights Act ("TCHRA"); intentional infliction of emotional distress; age discrimination in violation of the ADEA; and a violation of his "freedom of speech" rights. On August 7, 2003, CompuCom filed its Second Amended Answer and Counterclaim. In its counterclaim, CompuCom alleges conversion and breach of contract. On November 4, 2003, the court granted in part and denied in part CompuCom's Motion for Partial Dismissal. The claims that remain are Furman's Sabine Pilot claim, age discrimination claim, retaliation claim, intentional infliction of emotional distress claim and his "freedom of speech" claims.
Furman is a citizen of Tennessee, and CompuCom is a Texas corporation.
On November 26, 2003, CompuCom filed a motion for summary judgment on all of Furman's remaining claims. Both parties subsequently filed objections, and CompuCom moved to strike Furman's response to its motion for summary judgment. The court will address each in turn.
II. Rule 56(f) Continuance
As an initial matter, the court addresses Plaintiff's contention that summary judgment is inappropriate because the court has not ruled on two discovery matters, a motion to compel the production of Sidwell's and Hoard's personnel files and a motion to compel Sidwell's deposition questions, and further discovery may be necessary after the court rules on these motions. Although Furman does not specifically refer to Fed.R.Civ.P. 56(f), the court treats his request as a Rule 56(f) motion.
The motion to compel the production of the personnel files was filed while the case was still in state court. On April 30, 2003, the state district court judge ordered CompuCom to produce the files to the court in camera by May 12, 2003; the court would then review the files for information referencing Furman, his termination or the Fannie Mae investigation. According to Furman, the state district court never followed up on this issue. The motion to compel Sidwell's deposition questions was filed in state court on June 30, 2003, three days after this case was removed to federal court. See Pl. App. at 84. The court has neither a copy of the documents produced in camera to the state district judge nor a copy of the motion to compel Sidwell's deposition questions. It was incumbent upon Furman to ensure that these documents were before the court. As they are not before the court, it is impossible for the court to determine their relevance and merits. Finally, despite that discovery disputes have occurred and been resolved in this court, Furman never renewed his concerns regarding the motions filed in state court.
In his objections to Defendant's Reply, Furman also contends that CompuCom has not produced the findings of Dr. Kenneth Price's independent medical examination and that without these findings, he is unable to designate expert witnesses. It is unclear from the record whether Dr. Price's findings have been provided to Furman. According to the docket sheet, however, Furman has not designated any expert witnesses, filed a motion to compel the production of Dr. Price's findings, or filed a motion to extend the deadline for the designation of expert witnesses.
A. Rule 56(f) Standard
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., Inc. 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. Federal 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); International Shortstop, Inc. v. Rally's, Inc., 939 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
CompuCom contends that Furman's request for additional time to conduct discovery should be denied because (1) he failed to provide any affidavits in support of his request as required by Fed.R.Civ.P. 56(f); (2) the evidence he allegedly needs is not relevant to any issue before this court; and (3) he has not been diligent in obtaining the evidence he allegedly needs. The court agrees.
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, Furman 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. Furman 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 requirements, Furman not only failed to submit any affidavits, but he also failed to explain how the discovery sought would allow him to defeat CompuCom's motion for summary judgment. With respect to Sidwell's personnel file, Furman speculates that "it may contain documentation as to the `true' reasons for [his] termination." Pl. Resp. at 5 ¶ 13 (emphasis added). He offers much less with regard to Hoard's personnel file and Dr. Price's independent medical examination findings contending only that Hoard's personnel file "is pertinent to this case," id. at 5 ¶ 14, and Dr. Price's findings "are relevant to the subject matter of this suit." Pl. Obj. at 4-5 ¶ 3.5. Similarly, with respect to Sidwell's deposition questions, Furman contends only that Sidwell "refused to answer questions directly related to ultimate issues in this case, such as, whether or not he fired Plaintiff for refusing to cover up the felony thefts he had discovered." Pl. Resp. at 6 ¶ 17. Furman, however, does not articulate with "any degree of specificity how additional discovery will create a material fact issue." Leatherman, 28 F.3d at 1396.
As for the third requirement, evidence that Furman diligently pursued discovery is conspicuously lacking. Furman brought this action approximately twenty-two months ago, and it has been pending in this court for over one year. The court was unaware of either of the motions to compel, as both were filed in state district court. Indeed, the motion to compel Sidwell's deposition questions was filed in state district court three days after this case had been removed to federal court. Furman, however, never reurged either of the motions before this court or filed similar motions in this court. Furthermore, with respect to the findings of the independent medical examination, Furman has not filed for a motion to compel their production. Even now, after being educated by CompuCom, Furman has failed to seek leave to move correctly for a Rule 56(f) continuance. The court therefore finds that Furman's actions, or lack thereof, establish that he has not diligently pursued these discovery matters. For the reasons herein stated, the court determines that Furman has failed to establish that he is entitled to a Rule 56(f) continuance. Accordingly, the court denies Furman's request for a Rule 56(f) continuance.
II. Defendant's Summary Judgment Motion
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. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
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
1. Sabine Pilot Claim
Furman contends that he was wrongfully terminated solely for refusing to "suppress his reports of criminal acts, fraud, waste and corruption that [he] had uncovered and reported to officers of the corporation, "CompuCom" and to civil authorities, enforcing the criminal laws in Texas, the District of Columbia, Federal and/or Pennsylvania." Third Am. Compl. at 11. Specifically, he contends that Sidwell directed him to conclude the Fannie Mae and Air Product investigations and that doing so would constitute misprision of felony. Id. CompuCom counters that Furman cannot establish wrongful termination because he has not established that (1) he refused to perform any act directed by Sidwell; (2) his alleged "refusal" was the sole reason for his termination; and (3) his alleged "refusal" could have subjected him to criminal liability. The court agrees.
The following constitutes misprision of felony:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.18 U.S.C. § 4.
In Texas, employment for an indefinite term may be terminated at will and without cause, unless the termination falls within the narrow exception to the employment-at-will doctrine. White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003); Sabine Pilot, 687 S.W.2d at 735. This exception, referred to as the Sabine Pilot exception, prohibits the termination of an employee if the termination is based solely on the employee's refusal to perform an illegal act. Id. "In order to establish a prima facie case of wrongful termination under Sabine Pilot, the plaintiff must prove that: (1) [he] was required to commit an illegal act which carries criminal penalties; (2) [he] refused to engage in the illegality; (3) [he] was discharged; (4) the sole reason for [his] discharge was [his] refusal to commit an unlawful act." Id. (citing Sabine Pilot, 687 S.W.2d at 735).
It is undisputed that Furman has established the third element of a Sabine Pilot prima facie case, that is, that he was discharged. He, however, fails to establish, or create a genuine issue of material fact regarding, the second element, that is, that he refused to commit an illegal act. Here, Furman admits that he followed all of Sidwell's instructions, although he did encourage Sidwell to continue the theft investigations. Pl. App. at 48 (483:18-20) ("Well, I followed [Sidwell's] instructions, but I kept reminding him that as a [Certified Public Accountant] and as a [Certified Internal Auditor] and [Certified Fraud Examiner], it was our responsibility to finish the assignments."). In other words, Sidwell directed Furman to conclude his theft investigations and cease contact with Fannie Mae and Air Product, and Furman did so. Without evidence to establish or create a genuine issue of material fact, that he refused to commit an illegality, Furman cannot defeat summary judgment. As Furman fails to make a showing sufficient to establish the existence of an essential element of his Sabine Pilot claim on which he will bear the burden of proof at trial, CompuCom is entitled to summary judgment on this claim. See Celotex, 477 U.S. at 322-23.
Approximately two years after his termination and several weeks before his deposition in this case, Furman sent a copy of his investigations to Fannie Mae and Air Product but had no verbal contact with them. Prior to this time, Furman did not contact either company with information regarding his theft investigations. Obviously, the contact Furman had with these companies after his termination could not have been the basis of his termination.
Even if Furman could establish that he refused to commit an illegal act, which he has not, the court determines that he cannot establish or create a genuine issue of material fact that such a refusal was the sole reason for his discharge. Specifically, Furman concedes that his age "could have been a factor" in his termination. Pl. App. at 42 (464:18-20). Therefore, based on Furman's own testimony, his refusal, assuming such existed, could not have been the sole reason for his termination. Further, Furman cannot establish or create a genuine issue of material fact that concluding his investigations and ceasing all contact with Fannie Mae and Air Product constitute misprision. "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992). A failure to make known the earlier felony is not sufficient to constitute misprision. Id. at 508-09. Here, Furman concedes that Sidwell never directed him to falsify his reports or omit important information. Pl. App. at 34 (448:15-23). Because concluding the theft investigations and ceasing contact with Fannie Mae and Air Product amount to failing to make an alleged felony known, not to the affirmative action of concealing information, Furman cannot establish that he was required to commit an illegal act that carries criminal penalties. In short, Furman fails to establish or create a genuine issue of material fact as to the remaining essential elements, and the court determines that this is an alternative basis to deny his wrongful discharge claim.
B. Intentional Infliction of Emotional Distress Claim
Furman also contends that Sidwell "intentionally subjected [him] to severe emotional distress by making unwarranted criticisms which formed the false basis for his termination, including the outrageous choice of losing his employment or committing criminal acts which could have resulted in [his] imprisonment and/or other criminal penalties." Third Am. Compl. at 13 ¶ 21. CompuCom counters that Furman's claim for intentional infliction of emotional distress fails, as a matter of law, because he cannot demonstrate that CompuCom engaged in extreme or outrageous conduct. The court agrees.
To maintain a claim for intentional infliction of emotional distress, Furman must show that: (1) CompuCom acted intentionally or recklessly; (2) CompuCom's conduct was extreme and outrageous; and (3) and CompuCom's conduct caused him severe emotional distress. Ward v. Bechtel Corp., 102 F.3d 199, 203 (5th Cir. 1997) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Conduct is "outrageous," for purposes of an intentional infliction of emotional distress claim, "if it surpasses all bounds of decency, such that it is utterly intolerable in a civilized community." Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993). "Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions." Id. at 243.
Viewed in a light most favorable to Furman, his allegations and evidence, even if true, simply do not rise to the level necessary to show that CompuCom's conduct is outrageous in the sense that it exceeds all bounds of decency such that it would be totally unacceptable in a civilized society. The conduct attributable to CompuCom was no more than what is expected in a typical employment dispute. See Johnson v. Merrell Dow Pharm., Inc., 965 F.2d 31, 33-34 (5th Cir. 1992) (noting that denial of promotion and salary disputes are "mere employment disputes" insufficient to establish a claim for intentional infliction of emotional distress). Moreover, conduct much stronger than that which occurred here has been held not to constitute "outrageous conduct." See Webster v. Bass Enters. Prod. Co., 192 F.Supp.2d 684, 697 (N.D. Tex. 2002) (male supervisor's conduct toward female employee, including throwing objects at her, raising his eyebrows and sticking his tongue out in a sexually suggestive manner, asking her if she wanted to get drunk, yelling at her in front of co-workers, telling her that all single women were fair game, denying her raises, and pushing her and her chair into the desk while he reviewed her computer screen from behind her, was not so vile and reprehensible as to be intolerable in a civilized society, as required for employee's claim of intentional infliction of emotional distress); Antoine-Tubbs v. Local 513, Air Transport Div., Transport Workers Union of Am., AFL-CIO, 50 F.Supp.2d 601, 611 (N.D. Tex. 1998), aff'd, 190 F.3d 537 (5th Cir. 1999) (pregnant employee who was allegedly yelled at by male manager did not suffer distress so severe that no reasonable person could be expected to endure it; although employee became upset and her blood pressure was elevated, within a few minutes after being taken to employer's medical department, her blood pressure dropped and stabilized). Furman has thus failed to raise a genuine issue of material fact regarding an essential element, outrageous conduct by CompuCom, and CompuCom is therefore entitled to summary judgment on his intentional infliction of emotional distress claim.
C. Discrimination and Retaliation Claims
Furman next contends that he was terminated because of his age in violation of the ADEA and was retaliated against in violation of section 21.055 of TCHRA. Third Am. Compl. at 14 ¶ 23 and 12 ¶ 20, respectively. The ADEA makes it unlawful for an employer to "discharge an individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000); Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). Section 21.055 of TCHRA prohibits employers, among other things, from retaliating or discriminating against a person who "(1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing." Tex. Labor Code Ann. § 21.055 (Vernon 1996).
At the time of his discharge, he was 62 years old.
CompuCom contends that Furman cannot establish a violation of either statute because he did not exhaust his administrative remedies prior to filing suit. The court agrees. A condition precedent to bringing a suit on employment discrimination claim under the ADEA is the timely filing and exhaustion of an Equal Employment Opportunity Commission ("EEOC") charge. 29 U.S.C. § 626(d); Julian v. City of Houston, Texas, 314 F.3d 721, 725 (5th Cir. 2002) (citing Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988)). Similarly, TCHRA "requires the exhaustion of state remedies as a jurisdictional prerequisite." Jones v. Grinnell Corp., 235 F.3d 972, 974 (5th Cir. 2001); see also Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); Tarrant County v. Vandigriff, 71 S.W.3d 921, 924 (Tex.App. Ft. Worth 2002, no pet.). "The exhaustion requirement can be met only two ways: (1) the [Texas Commission on Human Rights] does not find reasonable cause and dismisses the complaint; or (2) the [Texas Commission on Human Rights] cannot resolve the complaint within 180 days." Jones, 235 F.3d at 975 (citing Tex. Lab. Code. Ann. § 21.208. Either way, the complainant must file a charge with the Texas Commission on Human Rights before filing suit.
Furman contends that he "made his concerns known to both the EEOC and the Texas Human Rights Commission." Pl. Br. at 15, 18. He, however, offers no evidence to support this assertion. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth, 19 F.3d at 1533. Furman concedes that he "is unable to recall with certainty if he ever actual[ly] filed an official complaint with either organization." Pl. Br. at 15; see also Pl. App. 35-36 (452-53:19-16). Furman, therefore, cannot establish that he exhausted his administrative remedies. Accordingly, these claims are barred, and CompuCom is entitled to summary judgment on Furman's ADEA and section 21.055 claims.
The relevant portion of Furman's deposition reads as follows:
Q. That's all right. That's all right.
You have never filed a charge of discrimination with the Equal Employment Opportunity Commission, have you?
A. That's a — I don't think I did. I talked to them. I went down and talked to both the EEOC and the Texas Human Rights Commission people.
Q. Okay.
A. And told them what had happened, and they said — they said that, well, in Texas, it is a right-to-work state, which means right to fire.
Q. Yeah.
A. And that they can fire you for no reason at all. They can fire you if — you know, for whatever reason —
Q. Yeah.
A. — or no reason. And they said that if you file and we have to go through the paperwork, it won't do you any good. And so that's about as far as I went on it.
Q. So you took their advice and didn't file anything?
A. As far as I can recall, I didn't.
Pl. App. 35-36 (452-53:19-16).
The court therefore need not discuss Defendant's other grounds for summary judgment on these claims.
D. Freedom of Speech Claims
Lastly, Furman contends a violation of both the United States Constitution and the Texas Constitution because "his termination violated his constitutional `freedom of speech' rights." Third Am. Compl. at 15 § 24. CompuCom counters that Furman cannot state a cognizable claim against it, as it is not a public employer. The court agrees.
The constitutional guarantees of free speech protect against abridgement by the government. Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state."). The First Amendment does not provide redress for abridgement by private individuals or corporations. Id. ("Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself."). The same is true for the guarantee of free speech found in the Texas Constitution. Republican Party of Texas v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997) ("The text of our state charter demonstrates that the guarantees of the Texas Bill of Rights generally apply only against the government.). As neither the United States Constitution nor the Texas Constitution provide for a cause of action against CompuCom, a private corporation, Furman cannot establish a cognizable violation of his right to free speech. Accordingly, CompuCom is entitled to summary judgment on Furman's freedom of speech claims.
III. Objections and Motion to Strike
In response to Plaintiff's response to Defendant's motion for summary judgment, Defendant filed objections and a motion to strike. Subsequently, Plaintiff filed objections.
In its objections and motion to strike, Defendant objects and moves to strike on the following grounds: (1) Plaintiff allegedly did not comply with Local Rule 56.5(c), which requires citations to the appendix; (2) some of Plaintiff's evidence is allegedly conclusory, speculative, vague, lacks foundation and constitutes inadmissible hearsay; (3) some of the statements made in Plaintiff's response are allegedly unsubstantiated; (4) Plaintiff has allegedly attempted to incorporate documents by reference; and (5) some of Plaintiff's documentary evidence has allegedly not been properly authenticated. In his "objections," Plaintiff responds to Defendant's objections and reurges his response to Defendant's Motion for Summary Judgment.
The court has previously set forth the applicable standard for competent summary judgment evidence. If the summary judgment evidence did not meet the standard, the court did not consider it, and such evidence played no part in the court's ruling. As for Plaintiff's failure to comply with Local Rule 56.5(c), to strike Plaintiff's response and brief for failing to consistently adhere to Local Rule 56.5(c) would be elevating form over substance, which the court will not do. The court therefore denies as moot CompuCom's objections and motion to strike. Likewise, with regard to Plaintiff's objections, the court has adhered to the applicable summary judgment standard under Fed.R.Civ.P. 56(c), as to what constitutes admissible evidence. Any evidence which was inadmissible was disregarded by the court in ruling on Defendant's Motion for Summary Judgment. The court therefore denies as moot Furman's objections.
IV. Conclusion
For the reasons here in stated, no genuine issues of fact exist with respect to any of Plaintiff's claims, and CompuCom is entitled to summary judgment on these claims. Accordingly, the court grants Defendant's Motion for Summary Judgment. The court also denies as moot Defendant's Objections to, and Motion to Strike Plaintiff's Response to Defendant's Motion for Summary Judgment; and denies as moot Plaintiff's Objections. Defendant CompuCom's counterclaims for conversion and breach of contract remain for trial. Defendant shall notify the court in writing by July 30, 2004 whether it intends to pursue its counterclaims against Plaintiff; if so, Defendant and Plaintiff must set forth, in writing by August 6, 2004, why the court should continue to exercise its supplemental jurisdiction over Defendant's counterclaims, which are state law causes of action.
It is so ordered.