Opinion
Civil Action No. 6:04-CV-020-C.
October 8, 2004
ORDER
CAME ON FOR CONSIDERATION this day the Motion for Summary Judgment filed by Defendants, LONE STAR BEEF PROCESSORS, L.P. ("Lone Star") and JOHN W. CROSS, on July 30, 2004. The Court also considered the Response filed by Plaintiff, JUAN F. LOPEZ, on August 16, 2004.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was employed by Defendant Lone Star on July 18, 2002, to work as a cattle pusher. On or about August 20, 2002, Plaintiff was hit by a cow while working in one of Lone Star's cattle pens. Several hours after the incident, Plaintiff was examined by Lone Star's safety supervisor, Shawn Berryhill ("Berryhill"). After the examination, Plaintiff returned to work although he complained of some soreness. On August 26, 2002, after working his full shift, Plaintiff sought medical treatment for his injury at Shannon Hospital Emergency Room. On August 27, 2002, Plaintiff told Berryhill about his seeking treatment the day before at the hospital. Plaintiff claims that Berryhill referred him to Lone Star's medical provider for treatment and refused to allow him to return to the hospital or the doctor who saw him on August 26 for follow-up appointments. As a result of Plaintiff's seeking medical treatment, he was required to submit to a drug test as required by company policy, which was administered to Plaintiff on August 27, 2002. The drug test showed a positive result for marijuana metabolites. On September 16 and 17, 2002, Plaintiff did not show up for work. Plaintiff claims that the company doctor who treated him, Dr. Richard Thorpe, did not release him to return to work until September 17, 2002, but that he also had an excuse from a Dr. Mark Murphy to miss work from September 17 through 28, 2002. He claims to have given the excuse from Dr. Murphy to Lone Star and also to have called in on the 16th and 17th to report that he would not be coming in to work. On September 18, 2002, Plaintiff's employment was terminated by Lone Star.
On March 26, 2004, Plaintiff, proceeding pro se, filed his Complaint in this Court, requesting permission to proceed in forma pauperis and court-appointed counsel. On May 17, 2004, this Court ordered Plaintiff to supplement or amend his Complaint and Plaintiff filed his First Amended Complaint on June 1, 2004. This Court granted Plaintiff's request to proceed in forma pauperis and denied court-appointed counsel on June 15, 2004. In his First Amended Complaint, Plaintiff claims that he was discriminated against under Title VII of the Civil Rights Act of 1964, as well as the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA").
Defendants moved for summary judgment on all Plaintiff's claims on July 30, 2004. Plaintiff's Response, filed on August 16, 2004, characterized his claims as being pursuant to the Texas Commission on Human Rights Act ("TCHRA"), Title VII, and the Family and Medical Leave Act ("FMLA"), and for negligence.
Even though Plaintiff's First Amended Complaint did not specifically state a claim under the TCHRA, the FMLA, or for negligence, Defendants' Motion for Summary Judgment addresses arguments to each of those claims as if Plaintiff had raised them. Because Plaintiff is proceeding pro se, this Court, as it is compelled so to do, will liberally construe Plaintiff's First Amended Complaint as if he had made such claims, especially in light of the fact that Plaintiff's Response indicates that he is seeking judgment for such claims. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980); Securities and Exchange Comm'n v. AMX, Int'l, Inc., 7 F.3d 71, 75 (5th Cir. 1993).
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. The pleadings are not summary judgment evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001) (quoting Celotex, 477 U.S. at 324). Absent a showing that there is a genuine issue for trial, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995).
A party moving for summary judgment may support that motion with appropriate evidence in an attempt to negate an essential element of the non-movant's claim or defense, but summary judgment is also appropriate when the movant shows that there is no evidence to support an essential element of the non-movant's claim or defense. See Celotex, 477 U.S. at 322 (1986). In order to withstand a no-evidence motion for summary judgment, the non-movant must present evidence sufficient to establish the existence of each element of his claim as to which he will have the burden of proof at trial. Id. The purpose of summary judgment, as the Supreme Court has instructed, is to "enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3189, 111 L.Ed.2d 695 (1990); Liquid Air Corp., 37 F.3d at 1075. A court is to resolve all factual controversies in favor of the non-movant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Liquid Air, 37 F.3d at 1075. Summary judgment is appropriate when a party fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322 (1986).
Furthermore, "summary judgment is appropriate where the only issue before the court is a pure question of law." Sheline v. Dun Bradstreet Corp., 948 F.2d 174, 176 (5th Cir. 1991); see also Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995) ("Consequently, we hold that because the disputed issue in this case is purely legal, it was appropriately resolved through summary judgment.").
III. DISCUSSION
Plaintiff's Federal Law Claims
Plaintiff's First Amended Complaint alleges violations of his rights under Title VII, the ADEA and the ADA. Defendants' Motion for Summary Judgment does not address Plaintiff's claims under the ADEA or the ADA but does move for summary judgment on Plaintiff's Title VII claims and any claims Plaintiff may have under the FMLA. Although Defendants do not move for summary judgment on Plaintiff's claims under the ADEA or the ADA, it is apparent to this Court that Plaintiff's First Amended Complaint, even under the most liberal construction, states no facts that, if proved, would give rise to such claims. He has made no claim that he is a member of an age-protected class, nor is there any evidence of his age before this Court. Likewise, he has made no claim that he suffers from a disability, nor is there any evidence of any disability before this Court. Accordingly, this Court determines that these claims should be dismissed for failure to state a claim. See FED. R. CIV.P. 12(h)(3).
Defendants argue that Plaintiff is not entitled to a claim that he was denied leave under the FMLA because he was not an "eligible employee" as defined by the FMLA in 29 U.S.C. § 2611(2)(A). An "eligible employee" under the FMLA must be employed for at least twelve months with an employer before he is entitled to seek leave under the provisions of the FMLA. Because Plaintiff was only employed from July 18, 2002, until he was terminated on September 18, 2002, Defendants contend he does not satisfy the definition of an "eligible employee." Plaintiff admits to the dates of his employment as established by Defendants, and consequently there is no material dispute as to the facts on this issue. Therefore, Defendants are entitled to judgment as a matter of law on any claims Plaintiff has alleged pursuant to the FMLA.
In order to maintain a claim under Title VII, Plaintiff must first establish a prima facie case of discrimination by proving that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced with a person who is not a member of the protected class. See Pegram v. Honeywell, 361 F.3d 272, 281 (5th Cir. 2004); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). Proof of a prima facie case raises an inference of discrimination and, in the absence of further evidence, creates a mandatory presumption in favor of the plaintiff. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 528, 113 S. Ct. 2742, 2758, 125 L.Ed.2d 407 (1993). However, once an employer meets its burden of production to put forward a legitimate, nondiscriminatory reason for its adverse employment action, the presumption provided by the prima facie case "drops from the case." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 10, 101 S. Ct. 1089, 1095 n. 10, 67 L. Ed. 2d 207 (1981).
Defendants have not disputed Plaintiff's prima facie case. Rather, the dispute here arises with regard to the credibility of Defendants' stated reasons for Plaintiff's termination, and whether those reasons were legitimate and non-discriminatory or whether they were simply a pretext for discrimination. Defendants have asserted that Plaintiff was terminated for (1) failure to notify the employer when he was absent from work on September 16 and 17, 2002; (2) testing positive for illegal drugs; and (3) failure to keep follow-up medical appointments. In support of the reasons for Plaintiff's termination, Defendants provide evidence in the form of the "Notice of Termination" presented to Plaintiff on September 19, 2002, which is signed by Plaintiff. [Defs.' App. to Mot. Summ. J., Ex. 8].
Plaintiff does not ever indicate the protected class of which he is a member, nor does he allege that he was replaced by someone not within that protected class. He merely attests that "he was never (sic) a member of a protected class." [Pl's. Resp. ¶ 4(A)]. However, even were this Court to read Plaintiff's Response liberally because he is proceeding pro se and therefore assume that Plaintiff's insertion of the word "never" was an inadvertent mistake and also that he assumed the Court would understand that the protected class referred to his Hispanic background, this Court is not required to presume that the nonmoving party could or would prove the necessary facts about his replacement. This alone could be sufficiently fatal to his prima facie case. Nevertheless, because Defendants do not contest Plaintiff's prima facie case, this Court will determine whether summary judgment is appropriate based solely on the arguments offered by Defendants.
Because Defendants have met the burden of producing a legitimate, nondiscriminatory reason for terminating Plaintiff, and evidence of the same, the burden now shifts back to Plaintiff to produce evidence that would be sufficient to persuade a jury that Defendants' proffered legitimate, nondiscriminatory reason is a pretext for discrimination against him because of his protected status. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000). In order to survive summary judgment, Plaintiff is required to offer proof to rebut each of the defendant's articulated reasons. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).
A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer's proffered reason is "unworthy of credence." Id. Furthermore, a showing of pretext does not automatically entitle an employee to a judgment as a matter of law. See St. Mary's, 509 U.S. at 524. It is not enough simply to disbelieve the employer's proffered nondiscriminatory reason. See id. at 519. The plaintiff must provide "sufficient evidence to find that the employer's asserted justification is false." Russell, 235 F.3d at 223 (quoting Reeves, 530 U.S. at 2109). "An employer is entitled to judgment as a matter of law on this ultimate question `if the evidence taken as a whole would not allow a jury to infer that the actual reason for the [employer's decision] was discriminatory.'" Vadie, 218 F.3d at 372 (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc)).
Plaintiff has failed to meet his burden in two ways. First, he has failed to rebut each of Defendants' proffered non-discriminatory reasons for terminating him. Plaintiff offers his sworn statement under penalty of perjury that he never failed to notify his employer when he would not be coming in to work and that he did show up for his follow-up appointments from August 27 through September 17, 2002. However, Plaintiff admits that he tested positive for illegal drugs. His statement that he was administered a Lortab during his initial visit to the hospital [Pl's. Resp. ¶ 4(D)] does not raise a disputed fact issue regarding Defendants' drug test that showed the presence of marijuana metabolites. [Defs.' App. to Mot. Summ. J., Ex. 1 ¶ 5; Ex. 3]. Therefore, he has produced no evidence of either a direct or circumstantial nature that would allow a jury to find that Defendants' proffered non-discriminatory reason based on the presence in his system of illegal drugs is unworthy of credence.
Under 28 U.S.C. § 1746, unsworn declarations are permitted to substitute for an affiant's oath if the statement contained therein is made "under penalty of perjury" and verified as "true and correct." Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). Plaintiff's Response meets this requirement.
Second, were this Court to assume that Plaintiff had established a prima facie case, it would only be weak at best, and in the absence of any other proof, he has produced no evidence of either a direct or circumstantial nature sufficient to allow a jury to find that Defendants' decision to terminate him was discriminatory. Even construing Plaintiff's pleadings liberally and in the light most favorable to him, this Court finds that Plaintiff's evidence is not sufficient to withstand Defendants' Motion for Summary Judgment. Accordingly, Defendants are entitled to summary judgment on Plaintiff's claim for discrimination under Title VII.
Plaintiff asserts that he "will present evidence of facts, to employer and to federal court on December-15-2004" [Pl's. Resp. at ¶ 4(D)], but he is required to present any evidence of discrimination he has at this time, in response to Defendants' Motion for Summary Judgment. The Court cannot assume that he will be able to prove any facts at a later time.
Plaintiff's State Law Claims
Plaintiff has also asserted claims under the TCHRA and for negligence. A federal court's exercise of jurisdiction over pendent state-law claims is provided for as follows:
[I]n any civil action in which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.28 U.S.C. § 1367(a). Plaintiff's state law TCHRA claims for discrimination are subject to the same burden-shifting framework applicable to Title VII discrimination cases. See Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999). The Court applies the same analysis to Plaintiff's claims under the TCHRA as applied to his Title VII claims. For the same reasons stated therein, this Court determines that Defendants are entitled to summary judgment on Plaintiff's claim for discrimination under the TCHRA.
Defendants also argue that Plaintiff's claims under the TCHRA were not timely filed. The Court, however, is unable to make such a determination based on the evidence before it, as the copy of the form, though dated March 22, 2003, also indicates "Original Received 10/9/02." This raises a question of whether Plaintiff had made an earlier complaint within the allowable period.
This court may decline to exercise its supplemental jurisdiction if it has "dismissed all claims over which it has original jurisdiction." § 1367(c)(3). Because this Court by this Order grants summary judgment for Defendants as to all Plaintiff's federal-law claims, it declines to exercise its jurisdiction over the Plaintiff's pendent state-law claims for negligence. Accordingly, Plaintiff's state-law claim for negligence should be dismissed without prejudice to being re-filed in state court. A federal court's refusal to exercise jurisdiction over pendent state law claims is construed as a dismissal for lack of jurisdiction pursuant to the Texas "savings statute," which is designed to protect litigants from the running of limitations in certain circumstances. TEX. CIV. PRAC. REM. CODE ANN. § 16.064(a); see Vale v. Ryan, 809 S.W.2d 324, 327 (Tex.App.-Austin 1991, no writ). Plaintiff has 60 days to re-file his claim for negligence in state court. TEX. CIV. PRAC. REM. CODE ANN. § 16.064(a)(2).
IV. CONCLUSION
The Court, based on the reasoning stated herein, hereby ORDERS that Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part. Summary judgment is GRANTED to Defendants on Plaintiff's claims pursuant to the FMLA and for discrimination under Title VII and the TCHRA. Summary judgment is DENIED as to all Plaintiff's remaining claims. Furthermore, the Court hereby ORDERS that Plaintiff's claims against Defendants pursuant to the ADEA and the ADA are DISMISSED with prejudice. In addition, the Court, pursuant to 28 U.S.C. § 1367(c), declines to exercise jurisdiction over Plaintiff's pendent state-law claim for negligence, and that claim is herewith DISMISSED without prejudice to being re-filed in state court.
All relief not expressly granted herein is DENIED.
SO ORDERED.