Opinion
SA-19-CA-712-OLG (HJB)
05-18-2020
CANDELLA LEDET, Plaintiff, v. PERRY HOMES, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable Orlando L. Garcia, Chief United States District Judge:
This Report and Recommendation concerns Defendant's Motion for Summary Judgment (Docket Entry 101), and Plaintiffs Motion for Default Judgment (Docket Entry 114). Pretrial matters in this case have been referred to the undersigned for consideration. (See Docket Entry 35.) For the reasons set out below, I recommend that Defendant's Motion for Summary Judgment (Docket Entry 101) be GRANTED, that Plaintiffs Motion for Default Judgment (Docket Entry 114) be DENIED, and that Plaintiffs case be DISMISSED.
I. Jurisdiction.
Proceeding pro se, Plaintiff sued Defendant for, inter alia, wrongful termination on the basis ofrace, in violation of 42 U.S.C. § 1981. (Docket Entries 1, 7.) This Court has jurisdiction over the case pursuant to 28 U.S.C. § 1331. I have jurisdiction to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Background.
Plaintiff, an African American woman, worked in the position of Outside Sales Professional for Defendant beginning in 2012. (See Docket Entry 101-1, at 4.) On March 13, 2016, Plaintiff was involved in a verbal and physical altercation with another Outside Sales Professional named Arlene Shearn, who is white. (Id; see also Docket Entry 1-1, Docket Entry 119-2.) After the incident, both Plaintiff and Shearn were temporarily suspended; Plaintiff was ultimately terminated, but Shearn was not. (Docket Entry 101, at 8.) Shearn apparently pressed criminal charges against Plaintiff as a result of the incident; however, Plaintiff was acquitted of those charges, and the charges were expunged. (Docket Entry 1-1, at 11-12; Docket Entry 138, at 2.)
Plaintiff brought suit against Defendant, alleging that she was treated less fairly than Shearn, a similarly-situated white employee. (Docket Entry 1 -1.) Although Plaintiff originally appeared to bring the suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., she later amended her complaint to bring a claim for discrimination under 42 U.S.C. § 1981. (Docket Entry 7.) The District Court dismissed Plaintiffs other claims, but permitted Plaintiffs § 1981 claim to proceed. (See Docket Entries 26, 32.)
Defendant subsequently moved for summary judgment on Plaintiffs § 1981 claim. (Docket Entry 101.) Defendant argued that, based on matters deemed to have been admitted by Plaintiff under Federal Rule of Civil Procedure 36, there was no dispute as to the material facts of Plaintiffs claim and Defendant was entitled judgment as a matter of law. (See Id. at 5-11.) Plaintiff opposed summary judgment (Docket Entry 138); she also sought default judgment against Defendant, arguing that default was appropriate based on Defendant's failures to comply with Court orders. (Docket Entry 114.)
Plaintiff has filed a No. of other motions that are currently pending before the Court. These motions are addressed by a separate order entered today.
III. Analysis.
This Report and Recommendation first addresses Defendant's summary judgment motion (Docket Entry 101) and then turns to Plaintiffs motion for default judgment (Docket Entry 114).
A. Defendant's Motion for Summary Judgment.
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if the record shows no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A party against whom summary judgment is sought may not rest on the allegations or denials in his pleadings, but instead must come forward with sufficient evidence to demonstrate a "genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute concerning a material fact is "genuine," and therefore sufficient to overcome a summary judgment motion, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of' the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).
"When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts---- Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). "Although the evidence is viewed in the light most favorable to the nonmoving party, a nonmovant may not rely on 'conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence' to create a genuine issue of material fact sufficient to survive summary judgment." Barrera v. MTC, Inc., No. SA-10-CV-665-XR, 2012 WL 1202296, at *2 (W.D. Tex. Apr. 10, 2012) (quoting Freeman v. Tex. Dep't of Crim. Just., 369 F.3d 854, 860 (5th Cir. 2004)).
In evaluating Plaintiffs response to the motion for summary judgment, the Court must be mindful of Plaintiff s pro se status. "[P]leadings of pro se litigants, including oppositions to motions for summary judgment, must be construed liberally and reviewed less stringently than those drafted by attorneys." Thorn v. McGary, 684 Fed.Appx. 430, 432-33 (5th Cir. 2017). At the same time, however, "pro se parties must still comply with the rules of procedure and make arguments capable of withstanding summary judgment." Id. (internal quotation marks and citations omitted); accord Hulsey v. State of Texas, 929 F.2d 168, 171 (5th Cir. 1991) ("The right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law.") (citation omitted).
In this case, Defendant seeks summary judgment based on its requests for admission, requests which Plaintiff admittedly did not answer. (See Docket Entry 101, at 10; Docket Entry 119.) As Rule 56 makes clear, admissions under Rule 36 are competent summary judgment evidence. See Fed.R.Civ.P. 56(c)(1); Celotex Corp., 477 U.S. at 323. Accordingly, the Court must determine (a) whether, in light of Plaintiffs failure to answer, the matters in Defendant's Rule 36 requests should be deemed admitted; and (b) if so, whether these admissions demonstrate the absence of any genuine issue for trial.
1. Whether, in light of Plaintiff's failures to answer, the matters in Defendant's Rule 36 requests should be deemed admissions.
Under Federal Rule of Civil Procedure 36(a), a matter is admitted unless the party to whom the request for admission is directed responds by answer or objection within 30 days. Fed.R.Civ.P. 36(a)(3); see Hulsey, 929 F.2d at 171. If a party does not admit a matter as requested, the answer "must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it." Fed.R.Civ.P. 36(a)(4). If a party objects to a request, the party must state the grounds for objection, and a party "may not object solely on the ground that the request presents a genuine issue for trial." Fed.R.Civ.P. 36(a)(5).
If a matter is admitted under Rule 36, it is "conclusively established" in the case, unless the Court, on motion, allows the admission to be withdrawn or amended. Fed.R.Civ.P. 36(b). Rule 36(b) applies both when an admission is affirmatively made by the party, and when a request is deemed admitted in light of a party's failure to respond. See In re Carney, 258 F.3d 415, 419 (5th Cir. 2001) ("[A] deemed admission can only be withdrawn or amended by motion in accordance with Rule 36(b)."). Under Rule 36(b), a court may permit withdrawal if court finds that withdrawal "1) would serve the presentation of the case on its merits, but 2) would not prejudice the party that obtained the admissions in its presentation of the case." Id. Even if a party establishes these two factors, the district court retains discretion to deny a request to withdraw an admission when appropriate. Id.
In this case, Defendant served requests for admission on Plaintiff on June 16, 2020, along with interrogatories under Federal Rule of Civil Procedure 33, and requests for production under Federal Rule of Civil Procedure 34. (See Docket Entry 68-1.) On July 16, 2020, Plaintiff responded to Defendant by email; she did not mention the requests for admission, but raised what appears to be a Fifth Amendment self-incrimination concern regarding Defendant's interrogatories. (See Docket Entry 119-1.) On July 21, 2020, Plaintiff filed a request for a protective order, but this request appeared to address Defendant's interrogatories and a request for medical records, not the requests for admission. (See Docket Entry 66.)
At a hearing before the undersigned on January 8, 2021, Plaintiff indicated that, despite the record evidence recounted above, she had in fact answered the requests for admissions. (See Docket Entry 125, at 13.) However, in an advisory to the Court filed January 11, 2021, Plaintiff conceded that she did not answer the requests for admission, stating that she was unaware whether answering "would affect me favorably or unfavorably." (Docket Entry 119, at 1.) She suggested that her July 16 email indicated that she had claimed a Fifth Amendment privilege in response to the requests for admissions, and she further stated that, upon reflection, she could not either "admit or deny any of the admissions questions." (Id.)
In light of the proceedings recounted above, Defendant's requests for admissions should be deemed admitted. Even when construed liberally in light of Plaintiff s pro se status, Plaintiff s July 16, 2020, e-mail cannot be considered an answer to the requests for admission. Accordingly, absent a legitimate objection, the matters were admitted by operation of Rule 36. See Fed.R.Civ.P. 36(a)(3) ("A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party. . . .").
Plaintiffs mention of the Fifth Amendment right against self-incrimination cannot be considered a sufficient objection to Defendant's requests for admission. Three reasons compel this conclusion. First, Rule 36 itself makes clear that an admission in a civil case does not have incriminatory effect in any separate criminal proceeding: "An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding." Fed.R.Civ.P. 36(b). In light of this language, it is difficult to imagine how the requests for admission could implicate the privilege against self-incrimination. This is particularly the case here, where the admission is based on Plaintiffs refusal to answer.
Second, Plaintiff does not specify which request for admission would implicate the self-incrimination privilege. The privilege "applies only when the possibility of self-incrimination is a real danger, not a remote and speculative possibility." Steinbrecher v. Comm. of Internal Revenue, 712 F.2d 195, 197 (5th Cir. 1983). If the incriminating nature of the response is not readily apparent to the court, the claimant must 'specify how [she] would be injured by any specific question [or answer].'" Id. (quoting Hoffman v. United States, 341 U.S. 479, 486-87 (1951)). In this case, the danger of self-incrimination is far from apparent, as Plaintiff has repeatedly stated that she was acquitted of charges arising from her altercation with Shearn. (See, e.g., Docket Entry 138, at 2.) And even if self-incrimination applied to some of the requests, Plaintiff "may not withhold all of the evidence demanded of [her] merely because some of it is protected from disclosure by the Fifth Amendment." United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Plaintiffs blanket refusal to answer is unacceptable. Id.
Finally, the Court should not permit a plaintiff in a civil case to utilize the Fifth Amendment protection as a means of prejudicing the opposing party. "While it may be true that an individual should suffer no penalty for the assertion of a constitutional right, neither should third parties sued by that individual... be placed at a disadvantage." Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1088 (5th Cir. 1979). "[I]t would be unfair to permit [the plaintiff] to proceed with [her] lawsuit and, at the same time, deprive [the defendants] of information needed to prepare [their] defense." Id. at 1087. "The plaintiff who retreats under the cloak of the Fifth Amendment cannot hope to gain an unequal advantage against the party [she] has chosen to sue." Id. "To hold otherwise would, in terms of the customary metaphor, enable plaintiff to use [her] Fifth Amendment shield as a sword. This [she] cannot do." Id. For all these reasons, Plaintiffs failure to properly respond to the requests for admission should result in the Court deeming admitted those matters contained in the requests.
Assuming that the requests are deemed admitted, Plaintiffs January 11, 2021, advisory may be liberally construed as a request to withdraw or amend her admissions. (Docket Entry 119.) Even if so construed, however, the request should be denied. In her advisory, Plaintiff asserted that she declined to answer the requests for admissions because she was unaware whether answering would "affect her favorably or unfavorably." (Docket Entry 119, at 1.) This assertion provides no ground for withdrawal or amendment: a party must answer the opposing party's proper discovery requests, whether or not such an answer will favor her case. Plaintiff s advisory further stated that, upon reflection, Plaintiff could not either "admit or deny any of the admissions questions." (Id.) This too is improper. Under Rule 36, if a matter is not admitted, the answer must "state in detail why the answering party cannot truthfully admit or deny it." Fed.R.Civ.P. 36(a)(4). A "party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny." Id. Plaintiffs belated response provides none of the required information.
Rule 36 reflects that policy that, "[u]nless the party securing an admission can depend on its binding effect, [the party] cannot safely avoid the expense of preparing to prove the very matters on which [the party] has secured the admission, and the purpose of [a request for admission] is defeated." Fed.R.Civ.P. 36, advisory committee note (1970 amendment). Although the Rule "emphasizes the importance of having the action resolved on the merits," at the same time it "assur[es] each party that justified reliance on an admission in preparation for trial will not operate to his prejudice." Id. In this case, these policies strongly support deeming admitted those matters covered by Defendants' requests.
2. Whether Plaintiffs admissions demonstrate an absence of any genuine issue for trial.
As the District Court indicated in its previous ruling in this case (see Docket Entry 32, at 4), claims of employment discrimination under § 1981 are governed by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bryan v. McKinsey & Co., 375 F.3d 358 (5th Cir. 2004).) Under this standard, the complaining employee bears an initial burden of establishing a prima facie case of discrimination. Bryan, 375 F.3d at 360. To prove a prima facie case of § 1981 racial discrimination against an employer, a plaintiff must establish that: (1) she is a member of a protected class; (2) she was qualified for the position held; (3) she suffered an adverse employment action; and (4) she was replaced by someone outside her protected class or was otherwise treated worse than similarly situated individuals outside of her protected class. Id. Once the plaintiff has established a prima facie case of discrimination, "[t]he burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason" for the adverse action. McDonnell Douglas Corp., 411 U.S. at 802. If the employer produces sufficient evidence to meet this burden, the plaintiff must show that she was "the .victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Additionally, to prevail under § 1981, the plaintiff must ultimately prove "that race was a but-for cause of [her] injury." Comcast Corp. v. Natl Assoc, of African Am.-Owned Media, 140 S.Ct. 1009, 1014-15 (2020).
In this case, Defendant does not appear to challenge Plaintiffs ability to make out a prima facie case. Instead, it argues that there is no genuine issue of material fact as to (1) the legitimacy of its non-discriminatory reason for Plaintiffs termination, and (2) Plaintiffs inability to show that race was the but-for cause of her dismissal. (Docket Entry 101, at it).) It supports these arguments with the following requests for admission:
• that in March 2016, there was a physical altercation between Plaintiff and Arlene Shearn;
• that Phillip Weyand, the VP of Sales, San Antonio/Austin Division and Wendy Melchor, VP of Benefits/Compensation investigated the incident and interviewed both Plaintiff and Shearn;
• that pending the investigation, both Plaintiff and Shearn were temporarily suspended;
• that as a result of investigation into the incident, Defendant terminated Plaintiffs employment, effective March 16, 2016; and
• that Defendant communicated to Plaintiff that she was terminated because the investigation revealed that Plaintiff instigated both the verbal altercation and the physical altercation between the two employees.(Docket Entry 68-1, at 15-16.)
The above facts, once deemed admitted under Rule 36, conclusively demonstrate that there is no genuine dispute regarding Plaintiffs § 1981 claim. Cf. Hulsey, 929 F.2d at 171 (Rule 36 admissions are conclusive as to matters admitted and cannot be overcome at the summary judgment stage by contradictory affidavit testimony or other record evidence). Although, as Defendant implicitly concedes, Plaintiff can present a prima facie case, her admissions conclusively show that Defendant proffered a legitimate reason for terminating her employment. McDonnell Douglas Corp., 411 U.S. at 802. Plaintiffs admissions preclude her from meeting her burden to show that this proffered reason was pretextual. They also foreclose her ability to show that race was the but-for cause of her discharge-a showing that is required "irrespective of the McDonnell Douglas framework." Simmons v. Triton Elevator, LLC, No. 3:19-CV-1206-B, 2020 WL 7770245, at *3 (N.D. Tex. Dec. 30, 2020) (citing Comcast Corp., 140 S.Ct. at 1014-15).
In finding that the admissions support summary judgment in this case, the undersigned notes the lack of any contravening evidence in the record. Plaintiff did not present any evidence in response to the motion for summary judgment, instead complaining about discovery issues in the case and noting that she had been acquitted of criminal charges that arose concerning the incident with Shearn. (Docket Entry 138, at 1-2.) Neither of these arguments defeats Defendant's summary judgment motion. Plaintiff has also presented the Court with a reprimand issued to Shearn the same day that Plaintiff was discharged. (See Docket Entry 119-2.) This document does not raise any genuine dispute as to the proffered reason for-dismissal or that race played a factor in Defendant's action.
Some of these discovery issues are addressed below in considering Plaintiff s motion for default judgment. See Part III(B), infra.
Plaintiff has denied that she instigated the incident, and she has denied that Defendant communicated the reasons for her firing. (Docket Entry 103.) Plaintiffs conclusory statements in this regard are not evidence; but even if they were, they would not support her § 1981 claim. Plaintiffs statements, if credited, would at most support a conclusion that Defendant was mistaken in its decision to fire her. Texas, however, is an at-will employment state, and employees "may be fired for a good reason, bad reason, or no reason at all." Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 660 (Tex. 2012). A decision to discharge an employee, even if mistaken, is not actionable under § 1981, absent a showing that race was but-for cause of the employer's action. Plaintiff has made no such showing.
For all these reasons, Defendant has demonstrated the absence of a genuine dispute in this case, and the motion for summary judgment should be granted.
B. Plaintiffs Motion for Default Judgment.
Plaintiff s pending motion for default judgment was filed on December 18, 2020. (Docket Entry 114.) The motion renewed a request Plaintiff had made two weeks earlier, in which Plaintiff had both suggested default as a sanction for Defendant's failure to follow court orders and as an appropriate action under Federal Rule of Civil Procedure 55(b). (See Docket Entry 106.) As Plaintiff had sought a Rule 55(b) judgment even though no default had been entered under Rule 55(a), the undersigned dismissed the Rule 55 judgment request and carried sanction request forward with the case. (See Text Order entered December 18, 2020.)
Federal Rule of Civil Procedure 16(f) provides that the court may impose sanctions against a party that fails to obey a pretrial order. Fed.R.Civ.P. 16(f)(1)(C). A trial court has "broad discretion" in determining whether to sanction the offending conduct. See Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979). Available sanctions include those set out in Federal Rule of Civil Procedure Rule 37(b)(2)(A); one such sanction is "rendering a default judgment against the disobedient party." Fed.R.Civ.P. 37(b)(2)(A)(vi). However, "[t]he entry of a default judgment is an extreme sanction and should be imposed only 'in the 'face of a clear record of delay or contumacious conduct by the [party].'" SEC v. First Houston Cap. Res. Fund, Inc., 979 F.2d 380, 382 (5th Cir. 1992) (citation omitted)).
Entry of default judgment is not an appropriate exercise of discretion for the claimed failure in this case. Plaintiff argues that Defendant failed to obey an order entered by undersigned on November 23, 2020, requiring Defendant to respond to a motion to compel discovery filed by Plaintiff. (See Docket Entry 106, at 1; Docket Entry 105.) However, the undersigned already addressed this failure. The undersigned issued a show-cause order on December 10, 2020 (Docket Entry 108); Defendant responded the next day, explaining its failure and providing evidence that it had previously provided a response to Plaintiffs underlying discovery request. (Docket Entry 109.) The undersigned held a hearing on the matter on January 8, 2021, and ordered additional discovery in a series of subsequent orders. (See Docket Entries 117, 118, 124, 127, and 130.) Plaintiff renewed a request for sanctions, which the undersigned denied. (See Docket Entries 128, 131.) In these circumstances, no further sanctions should be imposed on Defendant, let alone a sanction as severe as the entry of default judgment.
For these reasons, Plaintiffs motion for default (Docket Entry 114) should be denied.
IV. Conclusion and Recommendation.
For the reasons set out above, I recommend that Defendant's Motion for Summary Judgment (Docket Entry 101) be GRANTED, that Plaintiffs Motion for Default Judgment (Docket Entry 114) be DENIED, and that Plaintiffs case be DISMISSED.
V. Instruction for Service and Notice for Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Am, 47'4 U.S. 140, 149-52(1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).