Opinion
NO. 4:00-CV-1508-A
September 25, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of plaintiff, Richard Franklin, for partial summary judgment and the motion of defendant, The Burlington Northern and Santa Fe Railway Company, for summary judgment. The court, having considered the motions, the responses, the replies, the record, the summary judgment evidence, and applicable authorities, finds that plaintiff's motion must be denied and that defendant's motion should be granted.
I. Plaintiff's Claims
On December 23, 1999, plaintiff filed his original complaint in the United States District Court for the Western District of Texas, Austin Division. On June 28, 2000, he filed his first amended complaint. On July 31, 2000, defendant filed its answer and counterclaim. By order signed August 7, 2000, the action was transferred to the United States District Court for the Northern District of Texas, Fort Worth Division.
Plaintiff alleges:
Plaintiff was employed by defendant as a dispatcher from April 1995 until April 1999. During that time, he filed suit against defendant under Civil Action No. 4:97-CV-1051-A alleging race discrimination. The parties settled that action, one of the terms being that plaintiff would resign his position. In June 1999, plaintiff attempted to apply for a job as a dispatcher with defendant. Defendant refused to provide plaintiff an application form. Defendant's refusal was in retaliation for plaintiff's having filed a complaint with the EEOC and for having filed the earlier lawsuit. Plaintiff filed a second complaint with the EEOC and was issued a notice of right to sue.
Plaintiff alleges that defendant retaliated against him in violation of Title VII, 42 U.S.C. § 2000e to 2000e-17.
II. Grounds of the Motions
Plaintiff contends that he is entitled to judgment as a matter of law that defendant retaliated against him in refusing to consider his application to be rehired. Defendant, on the other hand, maintains that it is entitled to judgment because (1) plaintiff's complaint was not timely filed and (2) it did not retaliated against plaintiff when it declined to allow him to apply for re-employment.
III. Undisputed Facts
The summary judgment evidence establishes the following undisputed facts:
Plaintiff was employed by defendant as a dispatcher from May 1995 until April 1999. In late 1997, he sued defendant for race discrimination under Title VII. The parties agreed to settle that lawsuit. One of the terms of the agreement was that plaintiff would resign. During a telephone conference/hearing on March 31, 1999, the parties announced their settlement to the court and the court dismissed the action with prejudice, each party to bear the court costs incurred by that party.
Consistent with its understanding of the settlement agreement, defendant indicated on its records that plaintiff resigned effective April 1, 1999. Steven J. Klug ("Klug"), defendant's Assistant Vice President, Human Resources-Operations, who approved the settlement on behalf of defendant, instructed his subordinate to place a document in plaintiff's file indicating that plaintiff was not eligible for rehire, that the settlement agreement provided for plaintiff's "permanent resignation," and that defendant would not accept an application from him.
In June 1999, plaintiff requested an employment application from Klug. Klug refused to provide the application based on his understanding that plaintiff was not eligible for rehire because of the settlement of the earlier lawsuit.
Plaintiff filed a charge of discrimination based on retaliation. On September 20, 1999, the EEOC issued its notice of right to sue letter, which was addressed to plaintiff at 1130 Dwyerbrook, San Antonio, Texas 78253. Plaintiff was in Fort Worth during the week of September 20, 1999, and specifically recalls receiving the notice of right to sue letter on a Friday, which he concludes would have been September 24, 1999. Plaintiff filed his original complaint on December 23, 1999.
IV. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.Matsushita, 475 U.S. at 597.
V. Law Applied to the Facts
A. Timeliness of the Complaint.Defendant contends that plaintiff did not timely file this action. Pursuant to 42 U.S.C. § 2000e-5(f)(1), a plaintiff must file his complaint "within ninety days after the giving of such notice [of right to sue by the EEOC]." Here, the notice was issued on September 20, 1999. Plaintiff is presumed to have received the notice three days after its issuance. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1 (1984). Therefore, the law presumes that plaintiff received his notice on September 23, 1999. Plaintiff attempts to rebut the presumption by his affidavit stating that he was in Fort Worth during the week of September 20, 1999, and specifically recalls receiving the notice of right to sue letter on a Friday, which he concludes was September 24, 1999. The notice of right to sue letter is addressed to plaintiff at a San Antonio, Texas, address. Thus, plaintiff's affidavit does not rebut the presumption that the letter was received in San Antonio on September 23, 1999. Constructive receipt by plaintiff at the address he supplied to the EEOC is sufficient to start the time running. Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247, 1249-50 (5th Cir. 1985). Plaintiff makes no argument that equitable tolling should apply. Nor does he offer any evidence that would support such tolling.
Because the complaint was not filed until ninety-one days after the giving of the notice, the complaint is time-barred. Id. at 1250-51.
B. Merits of the Claim.
Assuming plaintiff had timely filed his complaint in this action, the summary judgment evidence establishes that he cannot prevail on the merits. The court need not discuss whether plaintiff could make out aprima facie case of retaliation. He cannot prevail in any event if he cannot overcome defendant's legitimate, nondiscriminatory reason for the adverse employment action. Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001). To do so, plaintiff must show that defendant's proffered reason was not the true reason for its employment decision and that retaliation was. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993).
Defendant relies on the Klug declaration to establish its legitimate, nondiscriminatory reason for refusing to accept plaintiff's application for re-employment. According to Klug, plaintiff's filing of an EEOC complaint for discrimination against defendant had nothing to do with his decision to refuse plaintiff's application. Instead, his refusal was based on his understanding that, pursuant to the earlier settlement agreement, plaintiff was not eligible for rehire. Plaintiff admits that that is the reason Klug gave him for refusing to give plaintiff an application. Instead of attacking Klug's declaration, plaintiff attempts to establish that the earlier settlement agreement did not prevent him from seeking employment with defendant. In doing so, he misses the point; that is, Klug, the decision-maker, believed that plaintiff had agreed not to seek re-employment and acted on that belief. Because plaintiff has not come forward with summary judgment evidence to raise a genuine fact issue whether the reason proffered by defendant was its true reason for refusing his application and that retaliation was the true reason, defendant is entitled to judgment as a matter of law.
Without having to decide whether plaintiff was barred by his agreement from reapplying for employment, the court notes that the summary judgment evidence supports the reasonableness of defendant's belief in that regard.
VI. ORDER
For the reasons discussed herein,
The court ORDERS that plaintiff's motion for partial summary judgment be, and is hereby, denied; that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and, that such claims be, and are hereby, dismissed with prejudice.
The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff's claims against defendant.
The court notes that defendant's counterclaim is still pending.