Opinion
No. 3-04-CV-0797-B.
May 20, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant ExxonMobil Corporation has filed a motion for summary judgment in this pro se retaliation case brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-3, and Texas law. For the reasons stated herein, the motion should be granted.
I.
In September 2001, Plaintiff Abraham W. Mekasha, an African-American of Ethiopian descent, was hired by defendant to work as a sales associate at one of its convenience stores in Dallas, Texas. (Def. MSJ App. at 53). A sales associate is an at-will, hourly employee. After working at the store for 10 months, plaintiff claims that Kathy Dickson, the assistant store manager, offered him lifetime permanent employment with defendant. ( Id. at 97-100). This alleged offer is memorialized in a "Documentary Memoranda" dated July 7, 2002, which provides, in pertinent part:
Almost all employment positions with defendant are terminable "at-will" by either party. This policy is explained in the ExxonMobil CORS Employee Handbook:
While we hope you will have a bright future with ExxonMobil, it is contrary to company policy to have any contracts for continued employment. Consequently, YOUR EMPLOYMENT IS TERMINABLE-AT-WILL. Either you or ExxonMobil may end the employment relationship for any reason. Although company policies may change from time to time, any change in the at-will relationship must be in writing and signed by the CORS [Company Owned Retail Store] Manager. The store manager does not have the authority to change the at will relationship. (Def. MSJ App. at 39) (emphasis in the original).
ExxonMobil corporation willingly reverses the at will employment law of the state of Texas. And here by Establishes an Endless contract concerning this particular employee by the name of Abraham W. Mekasha. From this day forward ExxonMobil corporation has no legal power to terminate Mr. Abraham W. Mekasha as long as he does his job. In case this permanent employment of Mr. Abraham W. Mekasha is terminated by ExxonMobil corporation here now ExxonMobil corporation voluntarily gives its word of promise to pay him punitive damages in the amount of One Billion Dollars and other relief as the given court deems just, proper, and equitable.
(Plf. MSJ App. Exh. A3). The document was typed by plaintiff at a local Kinko's and signed by plaintiff and Dickson. (Def. MSJ App. at 97-101, 147).
On or about August 15, 2002, plaintiff filed an internal complaint of national origin discrimination against his store manager, Lori Prickett, and a co-worker, Gerberg "Dallas" Hodges. ( Id. at 149-52). According to plaintiff, both Prickett and Hodges made fun of his name, spread rumors about his sexual orientation, and threatened to kill him. (Plf. MSJ App., Exh. SJL9). Plaintiff also complained to the Human Resources Department that Prickett refused to promote him to assistant store manager and treated Hodges more favorably because she is white. ( Id.). Defendant investigated the matter, but was unable to validate plaintiff's claims of discrimination. (Def. MSJ App. at 56-57).
Plaintiff alleges that this harassment continued for the next 11 months. More particularly, plaintiff contends that Prickett, Hodges, and other employees repeatedly called him names and threatened him with physical harm. Among the derogatory terms used by supervisors and coworkers to describe plaintiff were "unreasonable," "homosexual," "Communist," "civil rights leader," "bitch," "complaining dope," and "Abraham Lincoln." ( See id. at 89-90, 103-104, 106-10). Plaintiff also accuses Hodges of waiving a syringe at him and throwing cappuccino powder in his face. ( Id. at 121-22). One night, when plaintiff was alone in the store, the lights mysteriously dimmed and he was accosted by a customer. ( Id. at 115-17). Plaintiff blames his manager, Jerry Littleton, for staging that incident. ( Id.). He further alleges that thousands of "pseudo-customers" assaulted him outside the store at the behest of defendant. ( Id. at 111-13). Plaintiff believes that these acts, as well as defendant's failure to promote him to assistant store manager, were part of a pattern of retaliatory conduct that began shortly after he filed an internal complaint of discrimination.
On June 23, 2003, plaintiff was suspended by his manager, Taye Shegere, for spitting on a customer. ( Id. at 7, ¶ 9). When he failed to attend a mandatory off-site training session the next month and did not report for work the entire week of July 24, 2003, plaintiff was terminated by defendant. ( Id. at 7, ¶¶ 10-11). Thereafter, plaintiff filed a formal charge of race and national origin discrimination and retaliation with the EEOC. (Plf. Am. Compl., Exh. B). The agency declined to conduct a formal investigation and issued a right-to-sue letter. ( Id., Exh. A). On April 15, 2004, plaintiff filed this action in federal district court for retaliation under Title VII and breach of contract, promissory estoppel, false light, and intentional infliction of emotional distress under Texas law. Defendant now moves for summary judgment as to all claims and causes of action. The issues have been fully briefed by the parties and the motion is ripe for determination.
Shegere, who also is an African-American from Ethiopia, replaced Lori Prickett as store manager in September 2002. (Def. MSJ App. at 6, ¶¶ 2 Def. Reply App. at 4, ¶ 3).
Federal subject matter jurisdiction arises solely under 28 U.S.C. § 1331. Diversity jurisdiction is not proper because plaintiff is a citizen of Texas and defendant's principal place of business is in Irving, Texas. See J.A. Olson Co. v. City of Winona, Mississippi, 818 F.2d 401, 404 (5th Cir. 1987) (corporation is deemed to be a citizen of both the state of its incorporation and the state of its principal place of business).
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A summary judgment movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
A.
The only federal claim alleged by plaintiff is retaliation under 42 U.S.C. § 2000e-3. This statute provides, in part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3(a). To prove retaliation, plaintiff first must show that: (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse employment action. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995). Once plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for its decision. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). If the defendant meets this burden, plaintiff must come forward with sufficient evidence that the proffered reason is a pretext for retaliation. Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999). Stated differently, plaintiff must show that "but for" the protected activity, the adverse employment action would not have occurred. Id.; see also McDowell v. Home Depot, U.S.A., Inc., 2004 WL 594101 at *7 (N.D. Tex. Mar. 9, 2004), aff'd, 126 Fed.Appx. 168 (5th Cir. 2005).
The court recognizes that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). But even under Reeves, there still must be evidence of retaliation. McDowell, 2004 WL 594101 at *10.
Here, plaintiff has established that his internal complaint of discrimination dated August 15, 2002 constitutes protected activity and that his termination in July 2003 constitutes an adverse employment action. However, there is no evidence of a causal link between plaintiff's complaint and his subsequent discharge. The 11-month delay between these two events is far too attenuated to support an inference of retaliation. See Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case [of retaliation] uniformly hold that the temporal proximity must be `very close.'"); see also Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 685 (8th Cir. 2001) (seven-month lapse too long for incidents to be temporally and causally related);
Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month period insufficient to establish causal connection); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (lapse of 10 months between protected activity and subsequent adverse employment action suggests that retaliatory motive was "highly unlikely"); Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (same).
Nor has plaintiff shown that the reason proffered by defendant for terminating his employment was a pretext for retaliation. Defendant maintains that plaintiff was fired because he missed a mandatory off-site training session and did not report for work the entire week of July 24, 2003. ( See Def. MSJ App. at 7, ¶¶ 10-11). This explanation is entirely consistent with a company policy authorizing the immediate termination of an employee for "failure to notify your supervisor prior to any absence or tardiness[.]" ( Id. at 46, 48). Plaintiff has failed to adduce any competent summary judgment evidence to controvert this legitimate explanation or to suggest that he was discharged in retaliation for complaining about discrimination. Consequently, plaintiff's retaliation claim fails as a matter of law. See, e.g. Scott v. DMN, Inc., 2001 WL 428276 at *2 (N.D. Tex. Apr 19, 2001), aff'd, 31 Fed.Appx. 836 (5th Cir. 2002) (job abandonment is a legitimate, nondiscriminatory reason for terminating employee).
The only evidence submitted by plaintiff that even remotely bears on the issue of retaliation consists of conclusory and self-serving statements contained in his 87-page declaration and the 10-page declaration of Gus Wright, Jr. The court initially observes that plaintiff has not signed his declaration. ( See Plf. MSJ App., Mekasha Decl. at 87). Moreover, conclusory assertions, such as "[d]efendant's adverse actions against plaintiff is a result of plaintiff's complaint made against discrimination and plaintiff's participation in protected activities," are not competent summary judgment evidence. ( See id., Wright Decl. at 3, ¶ 36).
B.
Plaintiff also sues for breach of contract, promissory estoppel, false light, and intentional infliction of emotional distress under Texas law. A federal court has broad discretion in deciding whether to exercise supplemental jurisdiction over state law claims after all federal claims have been dismissed. 28 U.S.C. § 1367(c)(3); see also Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). Among the factors to be considered in exercising this discretion are judicial economy, convenience, fairness, federalism, and comity. See Rosado v. Wyman, 397 U.S. 397, 403-04, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970). When all federal claims are dismissed prior to trial, these factors weigh heavily in favor of declining to exercise jurisdiction. See Bunch v. Duncan, 2002 WL 324287 at *4 (N.D.Tex. Feb. 27, 2002), quoting Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir. 1992) ("Our general rule is to dismiss state claims when the federal claims to which they are pendant are dismissed.").
Although this case has been pending for over a year, there has been no substantial judicial activity. Little discovery has been taken and the case is not set for trial. Under these circumstances, declining to exercise supplemental jurisdiction over plaintiff's state law claims will promote federalism and comity without unduly prejudicing or inconveniencing the parties. See Ficq v. Texas Instruments, Inc., 2004 WL 792706 at *3 (N.D. Tex. Apr. 13, 2004), aff'd, 114 Fed.Appx. 155 (5th Cir. 2004) (declining to exercise supplemental jurisdiction over plaintiff's state law claims for gross negligence, unconscionable acts, misrepresentation, and fraudulent concealment upon dismissing federal claims on summary judgment). Cf. Batiste v. Island Records, Inc., 179 F.3d 217, 227-28 (5th Cir. 1999), cert. denied, 120 S.Ct. 792 (2000) (district court abused its discretion in dismissing state law claims where case had been pending over three years and court had ruled on multiple motions to dismiss and for summary judgment).
RECOMMENDATION
Defendant's motion for summary judgment should be granted with respect to plaintiff's Title VII retaliation claim. That claim should be dismissed with prejudice. The court should decline to exercise supplemental jurisdiction over plaintiff's state law claims for breach of contract, promissory estoppel, false light, and intentional infliction of emotional distress. Those claims should be dismissed without prejudice.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).