Opinion
SA-20-CV-01476-XR
01-18-2022
JIMMIE HOLT, Plaintiff v. WAL-MART STORE, INC., Defendant
ORDER
XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
On this date, the Court considered Defendant Wal-Mart Store, Inc.'s motion summary judgment (ECF No. 16). After careful consideration, the motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
This case arises out of an alleged assault by a Wal-Mart employee in Defendant's store located on Fm 78 in Converse, Texas on November 20, 2018. ECF No. 1-1 at 4. Plaintiff alleges that he was doing some pre-Thanksgiving shopping and asked an employee wearing a nametag bearing the name “Roger” about the price of some pies. Id. at 2. The employee stepped away, returned with the price, and engaged Plaintiff in some sort of conversation about family until he was eventually able to return to his shopping. Id. Plaintiff alleges that, as he was checking out, the employee approached him and identified himself as the manager of the store. Id. He then “looked at the black Spur's ball cap that [Plaintiff] was wearing” and “drew back” and hit Plaintiff twice on his right shoulder, which had recently been operated on. Id. Plaintiff asserts that the manager, later identified as Roger Nunez, was instructed to hit him as a part of a “racist targeted set-up” designed to bait Plaintiff into defending himself, allowing the “store security officer . . . behind the scene” to shoot Plaintiff in the back. Id. at 2-3.
Proceeding pro se, Plaintiff filed his Original Petition against Wal-Mart in state court on November 17, 2020, asserting claims under the “Race Discrimination Act - 1976” and the Age Discrimination Act of 1975, and for “pain and suffer[ing] on the Elder that was know[n] of injury [sic] by Party involved, ” which the Court construes as claim for assault, and seeking damages in the amount of $2.7 million. Id. at 3-4. Plaintiff attached several documents to his Original Petition, including:
(1) a Wal-Mart receipt dated November 20, 2018, id. at 5;
(2) a radiology report dated February 19, 2019, indicating that Plaintiff was experiencing post-surgical pain in his right shoulder, id. at 11-12;
(3) an “Incident Detail Report” indicating that Plaintiff reported the November 2018 incident to the Converse Police Department on September 10, 2019, and stated that he felt he was “targeted for no reason, ” id. at 14-15; and
(4) a demand letter dated July 1, 2020, sent to “the Area [Manager] of WalMart Store[s]” in the San Antonio and South Texas area, describing the November 2018 incident as a “racially motivated” “hate crime” and seeking $2.75 million in damages, id. at 6-9.Defendant removed the action to this Court on December 30, 2020, on the basis of diversity jurisdiction. ECF No. 1.
The Court entered an order directing the parties to submit scheduling recommendations no later than February 5, 2021. ECF No. 3. On February 5, 2021, Defendant submitted scheduling recommendations pursuant to the Court's order, noting that it had attempted to confer with Plaintiff, but he indicated that he wanted to be in state court and “would not sign anything in federal court.” ECF No. 7 at 1 n.1. The Court entered Defendant's proposed scheduling order, including a November 5, 2021 discovery deadline, and scheduled a status conference for February 25, 2021. See ECF Nos. 8, 9. Plaintiff failed to appear at the status conference. Defendant represented that it could not locate any evidence of the assault Plaintiff and failed to report it to Wal-Mart until nearly two years after it allegedly occurred, nor could it locate one of the statutes that Plaintiff asserted had been violated-the “Race Discrimination Act - 1976.”
Despite his apparent objections to litigating in federal court, Plaintiff has not filed a motion to remand this action to state court.
On October 1, 2021, Defendant timely served Plaintiff with a set of Requests For Admission (“RFAs”), which included the following requests:
1. Admit that the incident you allege occurred at WAL-MART STORE INC. was an intentional act by Roger Nunez.
6. Admit that you have no evidence that WAL-MART STORE INC. directed Roger Nunez to commit an intentional act against you.
7. Admit that you have no evidence that WAL-MART STORE INC. directed the unnamed male law enforcement officer whose identity you refuse to reveal to commit an intentional act against you.ECF No. 16-2 at 6. Plaintiff failed to respond to the RFAs within thirty days after service and did not seek an extension of time in which to do so or move the Court for a protective order excusing him from responding to the requests. Under Federal Rule of Civil Procedure 36(a), requests for admissions are deemed admitted if not answered within thirty days. Any matter admitted under Rule 36 is deemed conclusively established unless the court permits withdrawal of the admission. Fed.R.Civ.P. 36(b). The RFAs served on Plaintiff are deemed admitted based on his failure to timely respond, and Plaintiff has not moved to withdraw the deemed admissions.
Defendant now moves for summary judgment as to Plaintiff's claim under the “U.S. Race Discrimination Act of 1976” insofar as it refers to a non-existent statute; as to his claim under the Age Discrimination Act of 1975 because Wal-Mart is not subject to the statute's provisions; and as to his assault claim on the basis of his deemed admissions. ECF No. 16. No response has been filed, and the time in which to do so has expired.
DISCUSSION
I. Summary Judgment Standard
The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party's claim or defense, or, if the crucial issue is one for which the non-moving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the non-movant's claim or defense. Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir. 1992), on reh'g en banc, 37 F.3d 1069 (5th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir. 1991). Any “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment, ” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence” meet the nonmovant's burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Rather, the nonmovant must “set forth specific facts showing the existence of a ‘genuine' issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). The Court will not assume “in the absence of any proof . . . that the nonmoving party could or would prove the necessary facts” and will grant summary judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075.
For a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The Court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment, id. at 150, and must review all facts in the light most favorable to the nonmoving party. First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009).
The Court notes that Plaintiff is proceeding pro se in this case. While courts “liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with [federal procedural rules].” U.S. Bank Nat'l Ass'n v. Johnson, No. 1:15-CV-788-RP, 2017 WL 598499, at *2 (W.D. Tex. Feb. 14, 2017) (quoting Grant v. Cuellar, 59 F.3d 524, 524 (5th Cir. 1995). “The notice afforded by the Rules of Civil Procedure and the local rules” is “‘sufficient' to advise a pro se party of their burden in opposing a summary judgment motion.” Johnson, 2017 WL 598499, at *2 (citing Martin v. Harrison Cnty. Jail, 975 F.2d 192, 193 (5th Cir. 1992)). Likewise, “pro se status does not exempt [a litigant] from the usual evidentiary requirements of summary judgment.” Id. (citing Ellis v. Principi, 246 Fed.Appx. 867, 869 (5th Cir. Sept. 5, 2007) (per curiam)).
II. Analysis
A. Plaintiff's Claim Under the “Race Discrimination Act - 1976”
Plaintiff's Original Petition alleges damages under the “U.S. Race Discrimination Act of 1976.” ECF No. 1-1 at 3. The Court has not located any such law in any jurisdiction within the United States.
To the extent that Plaintiff intended to assert a claim under Title VII of the Civil Rights Act of 1964, that statute is inapposite. Title VII prohibits employers from discrimination in the terms, conditions, and privileges of employment based on race, color, religion, sex, or national origin. See 42 U.S.C. 2000e et seq. Plaintiff does not allege that he was a Wal-Mart employee or seeking employment at Wal-Mart at the time of the alleged assault, and thus his claims do not fall within the ambit of Title VII.
Any potential claim under 42 U.S.C. § 1981 would similarly fail. Section 1981 prohibits racial discrimination in the making and enforcement of public and private contracts, which the Supreme Court has held extends to discrimination in private employment. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 460295 (1975). But the original petition makes no mention of a contract with Wal-Mart, employment or otherwise. Plaintiff's claims are premised upon an intentional tort and cannot support a claim under 42 U.S.C. § 1981. See, e.g., Red Elk v. Vig, 571 F.Supp. 422, 424 (D.S.D. 1983) (concluding that 42 U.S.C. § 1981 was inapplicable to a case in which the defendants hit the plaintiff with the door of their moving car because, “Section 1981 was intended to allow a right of action for discrimination in consensual matters, ” and “[n]o matter how the facts in this case are structured, it will never sound in contract.”) (emphasis added) (citing Johnson, 421 U.S. at 470).
Finally, although 42 U.S.C. § 1985 can provide a remedy for racially discriminatory, intentional torts by two or more private parties, there is no evidence that Wal-Mart itself entered into or acted in furtherance of such a conspiracy or that the alleged assault was in fact motivated by racial animus.
Section 1985(3) prohibits “conspiracies to deprive a person of equal protection of the laws or of equal privileges and immunities under the laws on the basis of race.” Jackson v. Biedenharn, 429 Fed.Appx. 369, 372 (5th Cir. 2011); 42 U.S.C. § 1985. The predecessor to § 1985, the Ku Klux Klan Act of 1871, 17 Stat. 13, “was designed specifically to provide criminal and civil remedies in federal court for conspiratorial activities of the Klan, ” including, among other acts of violence, “murder, manslaughter, mayhem, robbery, [and] assault and battery.” Briscoe v. LaHue, 460 U.S. 325, 338 (1983).
The Supreme Court has cautioned that § 1985 does not transform all state law torts into federal causes of action:
That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe . . . “that Congress has a right to punish an assault and battery when committed by two or more persons within a State.”Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). To prevent § 1985 from becoming a font of federal tort law, the Griffin court strictly limited its application based on the defendants' intent:
The language requiring intent to deprive of equal protection, or equal privileges or immunities, means that there must be some racial or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.Id. at 102.
Accordingly, to establish a claim under § 1985, a plaintiff must demonstrate: (1) a conspiracy between two or more people, (2) for the purpose of depriving a person or class of the equal protection of the laws, and (3) an act that furthers the conspiracy, (4) whereby a person is injured in his person or property or denied any right or privilege of a citizen of the United States. McCoy v. Homestead Studio Suites Hotels, 177 Fed.Appx. 442, 446 (5th Cir. 2006).
Here, Plaintiff alleges a conspiracy between the unnamed security officer and the store manager, Roger Nunez, to assault Plaintiff on the basis of his race. ECF No. 1-1 at 2. But even taking these allegations as true, they would not support a § 1985 claim against Wal-Mart, because Plaintiff does not allege that Wal-Mart itself entered into the conspiracy to interfere with his rights or acted in furtherance of that conspiracy. Moreover, other than his subjective belief and conclusory statements, Plaintiff tenders no evidence that the alleged assault was motivated by racial animus. Subjective belief of discrimination, however genuine, cannot be the basis of judicial relief. See Elliott v. Grp. Med. & Surgical Servs., 714 F.2d 556, 567 (5th Cir. 1983). Plaintiff's “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation” that the assault was racially motivated are not sufficient to defeat a motion for summary judgment. Brown, 337 F.3d 539, 541. To the extent that Plaintiff seeks to assert a claim under 42 U.S.C. § 1985, it fails because there is no genuine fact issue as to Wal-Mart's involvement in the alleged conspiracy to interfere with Plaintiff's rights or that the conspiracy was motivated by racial animus.
Accordingly, Plaintiff has failed as a matter of law to properly assert a statutory claim for racial discrimination applicable to the conduct described in the Original Petition, and Wal-Mart is entitled to summary judgment with respect to Plaintiff's claim under the “U.S. Race Discrimination Act” of 1976.
B. Plaintiff's Claim Under the Age Discrimination Act of 1975
The purpose of the Age Discrimination Act (the “Act”) is “to prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance.” 42 U.S.C. § 6101. The Act further provides that “no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102.
Wal-Mart appears to misunderstand the scope of the Act, asserting that it is entitled to summary judgment because “Defendant does not provide federal financial assistance, nor was Plaintiff seeking such assistance.” ECF No. 16 at 4. The statute does not apply to providers of federal funding, however. Indeed, the statute only contemplates one such provider-the federal government. Rather, the statute prevents recipients of federal funding from age-based discrimination in the administration of their programs and activities. See 42 U.S.C. § 6107(4)(C) (defining a “program or activity” subject to the Age Discrimination Act, in relevant part as “(i) an entire corporation . . . -(I) if assistance is extended to such corporation . . . as a whole; or (II) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation”). Nonetheless, Plaintiff does not allege-and there is no reason to believe-that Wal-Mart constitutes a program or activity receiving federal financial assistance that would subject it to the provisions of the Act.
Before the Court can proceed to the merits, however, it has a duty to independently satisfy itself that subject matter jurisdiction exists. Christoff v. Bergeron Indus., Inc., 748 F.2d 297, 298 (5th Cir. 1984). Under the Act, in order for a district court to have jurisdiction over a civil action filed by a plaintiff to enforce rights created by that statute, the plaintiff must have exhausted available administrative remedies. See 42 U.S.C. § 6104(f). The Act provides that:
administrative remedies shall be deemed exhausted upon the expiration of 180 days from the filing of an administrative complaint during which time the Federal department or agency makes no finding with regard to the complaint, or upon the day that the Federal department or agency issues a finding in favor of the recipient of financial assistance, whichever occurs first.Id. Plaintiff fails to allege any facts in Original Petition demonstrating that he has submitted a timely claim to any federal agency. See ECF No. 1-1 at 2-3. Plaintiff has thus failed to establish by a preponderance of the evidence that the Court has subject matter jurisdiction over his claim under the Age Discrimination Act, and it must be dismissed.
To the extent that Plaintiff intends to assert a cause of action under the Age Discrimination in Employment Act, 29 U.S.C. § 623, that claim fails because Plaintiff has not alleged that he was a Wal-Mart employee or seeking employment at Wal-Mart at the time of the allegedly discriminatory conduct.
C. Plaintiff's Implied Claim for Assault
Although not alleged in the Original Petition, Wal-Mart's motion for summary judgment also addresses any potentially implied claims for negligent hiring, supervision, or retention based on his deemed admissions that he had no evidence that Wal-Mart knew or should have known of anything in Nunez's background or past conduct that would make his alleged conduct foreseeable. See ECF No. 16 at 5-8; ECF No. 16-2 at 7. However, even liberally construed, the Court cannot discern in the Original Petition any allegations that would support a claim for negligent hiring, supervision, or retention. Thus, the Court will neither imply nor further address any claims sounding in negligence.
Plaintiff has not asserted a direct claim against either Roger Nunez or the unnamed security guard who allegedly directed Nunez to assault Plaintiff. Rather, Plaintiff has asserted claims against Wal-Mart alone. Accordingly, in order to survive summary judgment, Plaintiff must demonstrate that there is a genuine issue of material fact as to whether Wal-Mart is vicariously liable for the alleged assault.
“Generally, a master is vicariously liable for the torts of its servants committed in the course and scope of their employment. This is true even though the employee's tort is intentional when the act, although not specifically authorized by the employer, is closely connected with the servant's authorized duties. If the intentional tort is committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity, the employer may be liable.” GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617-18 (Tex. 1999). Texas courts have extended vicarious liability to employers based on intentional torts of employees of who are authorized to use force in their line of work, such as nightclub bouncers. E.g., G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 88386 (Tex. App.-Dallas 2003, no pet.) (concluding that club owner was vicariously liable for bouncer's assault of patrons where bouncers were employed based on their size and were authorized to break up fights and remove patrons from the club, even though this specific use of force was against the club's policies).
Although some use of force might reasonably fall within the scope of a security officer's duties in protecting the store and its patrons, Plaintiff does not allege that the security officer assaulted him. See ECF No. 1-2 at 2-3. Instead, Plaintiff asserts that the unnamed officer directed Nunez to attack him. Id. There is no evidence that the officer was acting in the course and scope of his employment by allegedly directing the store manager to hit Plaintiff's arm. ECF No. 16-2 at 7. Likewise, there is no reason to believe, based on Plaintiff's deemed admissions and the rest of the summary judgment record, that Nunez's alleged assault was closely connected with his authorized duties as store manager. Id. In short, Plaintiff has not offered any evidence that Defendant directed or endorsed its employees' intentional torts or that such actions were within the course and scope of their employment.
Plaintiff's “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation” that the alleged assault was a part of larger, racially motivated conspiracy to manufacture a reason to “shoot [him] in the back, ” ECF No. 1-1 at 2, are insufficient to defeat a motion for summary judgment. Brown, 337 F.3d 539, 541. The Court will not assume in the absence of any proof that Plaintiff could substantiate this theory and must grant summary judgment where, as here, no reasonable jury could return a verdict for the nonmovant.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (ECF No. 16) is GRANTED IN PART and DENIED IN PART. Defendant's motion for summary judgment is GRANTED with respect to Plaintiffs claim under “Race Discrimination Act - 1976” and his implied claim for assault; Plaintiff shall take nothing by those claims and they are DISMISSED WITH PREJUDICE. Plaintiffs claim under the Age Discrimination Act of 1975 is DISMISSED WITHOUT PREJUDICE for want of subject matter jurisdiction.
Defendant is awarded costs and may file a bill of costs pursuant to the local rules. A final judgment pursuant to Rule 58 will follow.
The Clerk is DIRECTED to mail a copy of this order to Jimmie Holt, 5906 Encanto Point Drive, San Antonio, TX 78244.
It is so ORDERED.