Opinion
3-00-CV-53-G.
September 28, 2001
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of reference filed on September 14, 2001, and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), came on to be considered Defendant Harris Corporation's motion for summary judgment filed on April 12, 2001, and Defendant Lanier Professional Services, Inc.'s motion to dismiss filed on August 1,2001, and the magistrate judge finds and recommends as follows:
I. Defendant Harris Corporation's motion for summary judgment.
In its motion Harris asserts that it is entitled to summary judgment because Plaintiff cannot demonstrate the existence of a genuine issue of fact on one of the necessary elements which he must prove to be entitled to relief on his claims asserted against Harris pursuant to Title VII of the Civil Rights Act and the Fair Labor Standards Act (FLSA). Specifically it claims that Neal cannot show that he was an employee of Harris.
On May 23, 2001, a hearing was held before the undersigned magistrate judge in the capacity of special master. Among the issues considered was Harris's summary judgment motion. Plaintiff filed a response to the motion on May 11, 2001, along with a motion for continuance. Plaintiff's response failed to present competent evidence controverting Harris's claim, supported by the affidavit of Frank Spampinato (See Defendant's Appendix), that Plaintiff was never employed by Harris. At the hearing Plaintiff argued that Harris Corp. was the alter ego of the putative Defendant, Lanier Blair Graphic/Harris Corp. and orally moved for additional discovery pursuant to Rule 56(f) to obtain discovery to support his alter ego theory. The magistrate judge granted Plaintiff permission to engage in additional discovery in an effort to demonstrate that Harris was an alter ego of Lanier Professional Services, or at least to demonstrate a genuine issue of fact relating to the same. See Magistrate Judge's Report, Recommendation and Order filed on May 23, 2001, at pages 2-3.
On April 25, 2001, the District Court appointed the undersigned as special master. This appointment was subsequently vacated. See order filed on September 14, 2001.
After the magistrate judge's recommendation filed on May 23, 2001, was adopted by the District Court and Lanier Professional Services' motion to set aside default judgment was granted, Plaintiff filed his amended complaint on June 1, 2001, correctly identifying Harris's co-Defendant as Lanier Professional Services, Inc. The amended complaint does not render moot the issue raised in Harris's motion for summary judgment.
Although Plaintiff served discovery on Harris on or about June 1, 2001, a review of the inquiries propounded reflects that the discovery is not limited to matters relating to alter ego. Harris in turn served its responses, answers and objections on Plaintiff s counsel no later than July 30, 2001. Plaintiff has not filed any further response to Harris's motion for summary judgment.
In correspondence to the court from counsel it appears that Harris's responses were initially sent to Plaintiff s counsel's Dallas office, where receipt was refused, and were subsequently sent to Plaintiff s counsel's office in Houston on July 31, 2001.
As was noted at the hearing on May 23, 2001, and above Plaintiff's response to Harris's summary judgment evidence is insufficient to raise a colorable claim that he was employed by Harris during the pertinent time period under the requisite indicia of employer-employee relationship, See e.g. Fields v. Hallsville I.S.D., 906 F.2d 1017, 1019 (5th Cir.) cert. denied 498 U.S. 1026, 111 S.Ct. 676 (1990) and Deal v. State Farm County Mutual Ins. Co. ov Texas, 5 F.3d 117, 119 (5th Cir. 1993) or because Harris was the alter ego of Defendant Lanier Professional Services. See e.g. Walker v. Newgent, 583 F.2d 163, 167 (5th Cir. 1978); United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 691-92 (5th Cir. 1985).
In the Appendix filed with his opposition to Lanier Professional Services, Inc.'s motion, infra, Neal has included a copy of the employment agreement which he executed as an employee of Lanier Professional Services, Inc., which further points out the frivolousness of his opposition to Harris's motion for summary judgment.
Accordingly Defendant Harris Corp.'s motion for summary judgment should be granted and Plaintiff's claims against Harris should be dismissed with prejudice.
II. Defendant Lanier Professional Services. Inc.'s motion to dismiss, etc.
On August 1, 2001, Lanier Professional Services, Inc. filed its Rule 12(b)(6) motion and subject thereto its answer to Plaintiff s amended comply filed on June 1, 2001. In the answer portion of its pleading Lanier admits that Neal was its employee. See Lanier's motion at page 8, Part D.5. However, in support of its motion to dismiss or in the alternative, its motion for stay and to compel arbitration Lanier asserts that Plaintiff's claims against it are subject to binding arbitration pursuant to the terms of the employment agreement which Neal signed at the time his employment began. See Lanier's Appendix, pages 1-4.
In his opposition to the motion filed on August 24, 2001, Neal does not dispute the fact that he signed the agreement. Rather he argues that the arbitration clause is not enforceable because it fails to expressly include disputes based upon federal discrimination claims and that it would be against public policy to require him to arbitrate "other tortuous injuries" alleged in his complaint.
Per the employment agreement, employment disputes are subject to arbitration. See Lanier Appendix at page 3, ¶ 8.
It is not entirely clear what Plaintiff's other alleged injuries are since all his damages with the possible exception of Part E.8.c. (See amended complaint at page 2) are recoverable in a Title VII case. See P.L. 102-166, Section 102. Civil Rights Act of 1991.
The law in this circuit is quite clear that Title VII claims can be subject to mandatory arbitration. See Rojas v. TK Communications. Inc., 87 F.3d 745, 747-49 (5th Cir. 1996). See also Circuit City Stores. Inc. v. Adams, 121 S.Ct. 1302, 1313 (2001) wherein the Court observed:
The Court has been quite specific in holding that arbitration agreements can be enforced under the [Federal Arbitration Act] without contravening the policies of congressional enactments giving employees specific discrimination prohibited by federal law.
Any ERISA claim asserted by Neal, see n. 6, supra, is subject to arbitration as well. Requiring ERISA claims to be submitted to arbitration is wholly consistent with the Supreme Court's language in Adams, supra. Any pension or insurance obligations allegedly owed to Plaintiff clearly involve disputes arising out of the compensation to which he is entitled and thus come within the purview of the arbitration paragraph in his employment agreement with Lanier. See also Gross v. H.F. Ahmanson Co., No. H-98-1232 (S.D. Tex. 1998), 1998 U.S. Dist. LEXIS 20911.
When, as here, all of Plaintiff's claims are subject to binding arbitration "the weight of authority clearly supports dismissal." See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) and retaining jurisdiction over the case would serve no useful purpose.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court grant Harris Corporation's motion for summary judgment and grant Lanier Professional Services, Inc.'s motion to dismiss and that the District Court file its judgment dismissing Plaintiff's claims against Harris Corp. and Plaintiff's claims against Lanier Professional Services, Inc. with prejudice.
A copy of this recommendation will be transmitted to counsel for the parties.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.