Opinion
Civil Action No. 1:04-CV-075-C.
May 16, 2005
ORDER
Came on for consideration Defendant John E. Potter's ("Defendant") Motion for Summary Judgment, filed March 15, 2005. Plaintiff Emily A. Schwarz's ("Plaintiff") Response was due on or before April 4, 2005. See L.R. 7.1(e) ("A response and brief to an opposed motion must be filed within 20 days from the date the motion is filed."). However, Plaintiff failed to file a timely response but rather filed a late response on May 2, 2005. Plaintiff included a copy of a letter signed by Defendant's counsel agreeing to an extension of the deadline for filing a response until May 2, 2005. The Court notes that the letter was dated April 25, 2005 — a full 21 days after the response was due. Thus, the time had already passed for filing a response before the letter was agreed to by the parties. Regardless, the parties cannot, by themselves, extend deadlines. See scheduling order of this Court issued on May 26, 2004, and case cited therein, Saavedra v. Murphy Oil U.S.A., Inc. v. Lou-Con, Inc., 930 F.2d 1104, 1106 (5th Cir. 1991) (deadlines will "not be extended except upon good cause shown and by order of the Court"). That order set the deadline for summary judgment motions as March 15, 2005. Defendant filed its Motion for Summary Judgment on that date. In accordance with Local Rule 7.1(e), Plaintiff's Response was due within 20 days from March 15, 2005. Plaintiff has not shown good cause for failure to file a timely response. Nor did Plaintiff seek an order from the Court for an extension of time. Thus, the Court need not consider Plaintiff's untimely response.
I. BACKGROUND
Plaintiff worked for the United States Postal Service from October 1984 until June 6, 2003. Plaintiff was allowed to resign in lieu of discharge with her last day of pay status being June 6, 2003. Plaintiff filed her Original Complaint against Defendant in his role as Postmaster General for the United States Postal Service on March 19, 2004, alleging that the U.S. Postal Service willfully discriminated against Plaintiff. Plaintiff alleges discrimination based on race and sex in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). Plaintiff further alleges discrimination based upon her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1).
Plaintiff alleges that on April 26, 2003, she was issued a Notice of Proposed Removal by the U.S. Postal Service based on improper conduct because she "was donating items that were trash to non profit [sic] organizations." See Compl. at 1. Plaintiff alleges that she "believed [she] had been given permission to donate items to non profit [sic] organizations" and "there was no assistance given by the inspectors as to what items that could or could not be donated." Id. Plaintiff alleges that the Notice of Proposed Removal alleged that Plaintiff was donating music compact discs to organizations including her church. Plaintiff further alleges that she received different treatment from "other management employees in [the Abilene] facility who were of a different race, sex and age." Id. at 2. Plaintiff alleges that she filed an "EEO complaint because [she] felt other employees were treated differently than [she] was." Id. Specifically, Plaintiff names four employees whom she believes were treated more favorably than she: (1) Rudolpho Olivas, a Hispanic male supervisor who "violated the `Zero Tolerance' policy for violance in the workplace during an altercation with one of his employees"; (2) Richard Jimenez, a Hispanic male supervisor who violated the Zero Tolerance policy for violence in the workplace; (3) Joseph Taylor, an African-American male custodian who "was charged with coordinating the removal of music C.D.'s [sic] from the mail processing center for his personal gain"; and (4) Ralph Madore, a white male supervisor who "was found to be abusing his company credit card." Id. at 3-4.
Defendant denies any allegations of race, sex, or age discrimination. Defendant further asserts that Plaintiff was disciplined for violating clear Postal Service policy by taking music compact discs which, due to various laws including copyright laws, were to be destroyed, and "donating" them to her church, which with Plaintiff's knowledge, was in turn selling the compact discs in further violation of the law.
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.
In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims).
Rule 56(e), Federal Rules of Civil Procedure, requires the party against whom the motion is made to "set forth specific facts showing that there is a genuine issue for trial." Absent such a showing, 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). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). "[T]he nonmoving litigant is required to bring forward significant probative evidence demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982).
However, the mere fact that no opposition is filed does not excuse the moving party from meeting its burden on the summary judgment motion. John v. State of La. (Bd. of Trs. for State Colls. and Univs.), 757 F.2d 698, 709 (5th Cir. 1985) ("We hold, therefore, that the summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants' motion for summary judgment."). If no factual showing is made in opposition to a motion for summary judgment, the district court is not required to search the record sua sponte for some genuine issue of material fact. It may rely entirely on the evidence designated by the moving party showing no such triable issue. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
III. DISCUSSION
Defendant's Motion for Summary Judgment is replete with citations to its summary judgment evidence in support of its arguments. Even had the Court considered Plaintiff's untimely Response, Plaintiff failed to include an appendix or attach any form of evidence in support of her conclusory assertions that issues of material fact exist. Plaintiff's attempted Response contains a two-sentence statement that she disputes some of Defendant's facts; however, she does not point the Court to any evidence in support of why the facts are in dispute. Plaintiff's entire argument is a short paragraph that is mostly a quotation of Defendant's argument. Plaintiff concludes her short "argument" with a statement that she does now assert that she was replaced by someone younger. Again, Plaintiff fails to support her arguments with any citations to evidence of any form.Defendant argues that Plaintiff has failed to come forward with any direct evidence of race or gender discrimination in her Complaint, answers to interrogatories, or in the EEO proceedings. The Court agrees that Plaintiff has not produced evidence that could reasonably be construed as direct evidence of discrimination. Thus, Plaintiff must establish through indirect evidence that Defendant discriminated against her. Under McDonnell Douglas, the first step requires Plaintiff to establish her prima facie case of race and gender discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Next, Defendant must satisfy the second phase by offering a legitimate, nondiscriminatory reason for any ultimate adverse employment action taken against a plaintiff. Defendant's "burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson, 530 U.S. 133, 142 (2000). Once Defendant satisfies this burden of production, the question is "whether there exist material facts upon which a jury could conclude that Defendant's stated reason . . . is pretextual." Montgomery v. Brookshire, 880 F.Supp. 483, 486 (W.D. Tex. 1995).
To make out a prima facie case under Title VII for race or gender, the following elements are required: (1) that Plaintiff was a member of a protected class; (2) Plaintiff was qualified for the position held; (3) Plaintiff suffered an adverse employment decision; and (4) others similarly situated were treated more favorably. See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 2004). Defendant argues that Plaintiff has failed to meet the fourth element of a prima facie case of race or gender discrimination. The Court finds that Defendant has come forward with competent summary judgment evidence showing that Plaintiff has failed to meet the fourth element of her prima facie case of alleged race discrimination. See Def. Br. at 21-22 (citing to summary judgment evidence in support of arguments). The Court also finds that Defendant has come forward with competent summary judgment evidence showing that Plaintiff has failed to meet the fourth element of her prima facie case of alleged gender discrimination. See Def. Br. at 22-23 (citing to summary judgment evidence in support of arguments). Finally, the Court finds that Defendant has come forward with competent summary judgment evidence showing that Plaintiff has failed to meet the fourth element of her prima facie case of alleged age discrimination. See Def. Br. at 23-24 (citing summary judgment evidence in support of argument).
The elements for a prima facie case of age discrimination are (1) plaintiff was discharged; (2) plaintiff was qualified for the position; (3) plaintiff was within the protected class at the time of discharge; and (4) plaintiff was i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of age. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004).
Defendant has come forward with evidence supporting Defendant's legitimate reason for the action. See Def. Br. at 25-30 (citing to competent summary judgment evidence contained in Defendant's Appendix). Plaintiff has the burden and must adduce specific evidence that would permit a reasonable trier of fact to find that the proffered reason for the adverse employment action is a pretext for retaliation. See id.; see also Smith v. Wal-Mart Stores, 891 F.2d 1177, 1178 (5th Cir. 1990); EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1326 (5th Cir. 1991). Plaintiff has failed to meet her burden. Moreover, Defendant has come forward with competent summary judgment evidence showing that Plaintiff cannot meet her burden of showing pretext. See Def. Br. at 31-32.
IV. CONCLUSION
Defendant's Motion for Summary Judgment is GRANTED in its entirety. Plaintiff has failed to meet her burden. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978) (Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence.). Plaintiff "is required to bring forward significant probative evidence demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). Plaintiff has failed to "set forth specific facts showing that there is a genuine issue for trial." Absent such a showing, 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). Even were the Court to consider Plaintiff's untimely Response, Plaintiff has failed to come forward with any evidence. Plaintiff may not rely on mere denial of material facts or on unsworn allegations in the pleading or arguments and assertions in briefs or legal memoranda; rather, the party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. See Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 119 (5th Cir. 1982). The party opposing summary judgment does not meet its burden with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).