Opinion
Civil Action No. 1:03-CV-125-C
January 8, 2004
ORDER
On this date the Court considered Defendant Roscoe State Bank's Motion for Summary Judgment filed on November 20, 2003, Plaintiff, Paul Pogue, did not file a Response. After considering all the relevant evidence and filings within the record, the Court finds that Defendant's Motion is meritorious and well-taken. Therefore, the Court hereby GRANTS Defendant's Motion for Summary Judgment in its entirety.
On this day the Court also considered Defendant's Application for Judgment by Default filed on January 6, 2004. The Court hereby DENIES Defendant's Application for Judgment by Default seeking unliquidated attorney's fees because Plaintiff did not respond to Defendant's Motion for Summary Judgment.
I. PROCEDURAL BACKGROUND
Plaintiff filed his state petition with the District Clerk of the 32nd Judicial District Court in and for Nolan County, Texas, on July 2, 2003. Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441(b) and 1446(a) on July 18, 2003. Defendant filed its Motion for Summary Judgment on November 20, 2003. Plaintiff did not file a Response. On January 6, 2004, Defendant filed an Application for Judgment by Default.
II. FACTUAL BACKGROUND
Other than the allegations contained in Plaintiff's Petition filed in state court, this Court has little to go on as to Plaintiff's version of the facts. Defendant, within its Motion for Summary Judgment, listed its version of the facts. What is not in dispute is that Plaintiff brings claims for violations of the Fair Housing Act, 42 U.S.C §§ 3601 et seq.; violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; hostile and harassing work environment, presumably under Title VII, 42 U.S.C. § 2000e-5 et seq.; retaliation for opposing lending practices, though not specified, presumably under Title VII; and for the tort of slander to his professional reputation under Texas common law.
Plaintiff was employed by Defendant as a vice president and a loan officer from at least some time in 2000 until mid-June of 2001. The record clearly shows that Plaintiff took time off from work because of an alleged medical condition within his inner ear that caused vertigo. The record also supports Defendant's claims that Plaintiff exceeded his allowable sick leave days and that he was given extra sick leave by the Board of Directors of the bank. Plaintiff alleges that he sought treatment from medical practitioners for the ailment.
Plaintiff alleges that bank president, John Jay, became unhappy with Plaintiff's time away from work and, on January 31, 2001, informed the Plaintiff that he would not be getting a raise or bonus due to his absences from work. Plaintiff further alleges that John Jay was unhappy with him because Plaintiff had complained to other officers at the bank about discriminatory lending practices. Plaintiff contends that he had been asked to violate the Fair Housing Act ("FHA") by improper use of consumer credit reports. Plaintiff alleges that otherwise creditworthy applicants were discriminated against based upon their ancestral national origin, marital status, and race. He claims that Caucasian males received loans when they had far more inferior credit ratings than minority or unmarried female applicants. Plaintiff also alleges that he beard statements from some customers that Defendant's officers were making comments against Plaintiff that falsely accused him of stealing money. Plaintiff believes his performance and reputation were being denigrated merely to create a pretext for his termination. Plaintiff alleges that in May of 2001, the environment at the bank became hostile because the keys were changed, some of Plaintiff's customers were assigned to other loan officers, and Plaintiff was not given a new key.
In June of 2001, Plaintiff alleges, he took a leave of absence to go to Houston for an operation and treatment of his vertigo condition. He states that Defendant used his absence as an excuse to terminate him. Plaintiff alleges that he attempted to return to work in July of 2001 but the doors were locked and he could not get in. He alleges that he was terminated at that time in violation of the FHA because he opposed Defendant's allegedly discriminatory lending practices. He also claims that he was terminated in violation of the Americans with Disabilities Act because of his vertigo condition. Plaintiff alleges that he did not quit his job but rather was on medical leave when terminated.
Defendant's alleged facts are somewhat different. Defendant contends that in January of 2001 it was discovered that Plaintiff's loan portfolio was in poor condition. Defendant alleges that the portfolio lacked adequate documentation, had significant collateral exceptions, had past-dues in excess of the targeted goals, and had required $115,000,00 for loan charge-offs in 2000. Defendant also alleges that in January of 2001 Plaintiff was instructed to consult his supervisor on all loans but that he did not follow the prescribed format. Plaintiff was allegedly given a verbal reprimand for poor judgment, poor documentation of loans, having excessive collateral exceptions, and his failure to follow the prescribed format of meeting with his branch manager to allow for review of his loans, Defendant further alleges that in February of 2001 Plaintiff was still not following the guidelines laid out for him. Defendant alleges that in March of 2001, Plaintiff was informed that all loans would have to be approved by the branch manager before being issued by Plaintiff but that Plaintiff was expressly told not to divulge this information to customers; however, Plaintiff did precisely what he was instructed not to do-he told customers that he had no lending authority. Defendant states that Plaintiff was issued a written reprimand in April of 2001.
Defendant further contends that Plaintiff missed quite a few days of work from April 2001 until June 2001 and that Plaintiff worked far fewer days than he was scheduled to work during this time period. In this period of absence, Defendant alleges, Plaintiff was carried on sick leave. In early June of 2001, Plaintiff was allegedly contacted by his supervisor, who was inquiring of Plaintiff the status of his absence. Defendant alleges that Plaintiff informed his supervisor that Plaintiff wished to take his annual vacation time from June 4, 2001 until June 15, 2001, and that on June 11, 2001, Plaintiff came to the office while still on vacation time and talked with some co-workers about his trip to San Francisco.
It is further alleged that while at the bank he moved some personal loans to another bank. On June 13, 2001, co-workers of the Plaintiff noticed that his personal belongings had been removed from his area of work, Following his vacation time, Plaintiff did not return to work for at least three consecutive days without calling in or notifying the Defendant. At that point, Plaintiff's employer considered him to have abandoned his job.
On June 29, 2001, Defendant received a letter from Plaintiff's attorney complaining of a hostile work environment. On November 19, 2001, Plaintiff filed a charge of discrimination with the EEOC against Defendant. A notice of the charge was sent to Defendant on December 13, 2001. A dismissal of the charge on a determination that the EEOC could not conclude there had been any violations and a right-to-sue letter were sent to the Plaintiff on December 17, 2001. As stated above, Plaintiff filed this suit in state court on July 2, 2003.
Defendant alleges that Plaintiff's charge of discrimination was filed 521 days after his termination and that, although Plaintiff attempted to date his charge of discrimination as of October 15, 2001, the notary public indicated that the date the charge was filed was November 19, 2002. Defendant also alleges that this suit was filed 197 days after the right-to-sue letter was issued. Defendant attached as exhibits all of the EEOC documents. Moreover, Defendant points the Court to Plaintiff's admissions within Defendant's Requests for Admissions in which Plaintiff admits when he received the right-to-sue letter and that he did not file suit within 90 days. Thus, Defendant raises the defense of limitations for Plaintiff's claims regarding discrimination.
Defendant also alleges that Plaintiff may not bring a suit under the FHA as a "whistleblower" and that the applicable statute of limitations for FHA suits is two years pursuant to 42 U.S.C. § 361(a)(1)(B). Defendant further alleges that Plaintiff's ton action for slander is barred by the one-year statute of limitations pursuant to Texas Civil Practice and Remedies Code § 16.002.
III. 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 (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 (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.IV. DISCUSSION
Plaintiff claims disability discrimination, hostile work environment, retaliation, and slander, based on Defendant's alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VTT); violations of the Americans with Disabilities Act, 42 U.S.C, §§ 12101, et seq. ("ADA"); violations of the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"); and slanderous comments made by Defendant's officers,As pointed out by the Defendant, Plaintiff's claims of discriminatory conduct are barred by limitations. He failed to file suit within the time period required for discrimination claims after a right-to-sue letter has been issued. Moreover, from a review of the record it is apparent to the Court that Plaintiff has failed to present evidence that would allow a reasonable jury to infer discrimination against Plaintiff. Additionally, as pointed out by the Defendant, the FHA does not allow "whistleblower" actions by third parties who were not discriminated against themselves in the loan process. Plaintiff has no standing to bring a suit for Defendant's alleged violations of the FHA. Moreover, the two-year statute of limitations had expired before this suit was initiated. The Court further finds that Plaintiff has not presented any evidence that he was retaliated against in his termination. Rather, the record reflects adequate, legitimate, non-discriminatory, non-pretextual reasons for Plaintiff's termination. The Court further finds that Plaintiff's slander claims are barred by the statute of limitations,