Opinion
CIVIL ACTION NO. 3:99-CV-2554-P
January 16, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are:
(1) Defendants' Motion for Summary Judgment ("Motion"), filed June 30, 2000;
(2) Plaintiff's Request for Hearing on Defendants' Motion for Summary Judgment, filed July 24, 2000;
(3) Plaintiffs Objections to Defendants' Summary Judgment Evidence, filed July 31, 2000; and
(4) Defendants' Objections to Plaintiff's Declaration, filed August 15, 2000.
Plaintiff filed his response to Defendants' Motion for Summary Judgment on July 31, 2000. Defendants filed their reply to Defendants' Motion for Summary Judgment on August 15, 2001.
Plaintiff's Request for Hearing on Defendants' Motion for Summary Judgment ("Request") does not contain a certificate of conference in compliance with Local Rule 7.1(b) indicating whether Defendants are opposed to the Request. However, because Defendants did not file a responsive brief to the Request, the Court assumes Defendants are unopposed to the Request.
Defendants filed their Response to Plaintiff's Motion to Strike on August 15, 2000. Plaintiff did not file a reply brief.
Plaintiff filed his Response to Defendants' Objections to Plaintiff's Declaration on September 8, 2000. Defendants did not file a reply brief.
After careful consideration of the Parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment; DENIES Plaintiff's Request for Hearing on Defendants' Motion for Summary Judgment; DENIES as MOOT Plaintiff's Objections to Defendants' Summary Judgment Evidence; and DENIES AS MOOT Defendants' Objections to Plaintiff's Declaration.
FACTS
Southern Risk Specialists, Inc. ("Southern Risk") is a wholesale insurance broker authorized to sell property insurance to other wholesale brokers and retail brokers (those who sell directly to the insured) on behalf of Lexington Insurance Company ("Lexington"). (Defs.' App. at 13, 144.) Southern Risk is a wholly-owned subsidiary of Risk Specialists Companies, Inc. ("Risk Specialists"), a holding company that owns several other wholesale insurance brokerages. (Defs.' App. at 143.) Both Lexington and Risk Specialists are subsidiaries of American International Group, Inc. ("AIG") (Defs.' App. at 151.)
In April 1991, American Home Assurance Company ("American Home") (another subsidiary of AIG) hired Plaintiff as its Regional Property Manager. (Defs.' App. at 2.) In 1994, American Home shut down its Dallas office and transferred all business operations to Atlanta, Georgia. (Defs.' App. at 3, 157.) Although many employees lost their job as a result of the relocation, Plaintiff continued his employment in Texas in a marketing position. (Id.) In late 1995, AIG began consolidating operations for its property entities. (Lexington, American Home, and Commerce and Industry). (Defs.' App. at 5, 146, 157.) As a result of that consolidation, AIG phased American Home out of the Texas market and began writing property insurance exclusively through Lexington. (Defs.' App. at 5.)
At this same time, Risk Specialists was also reorganizing and Southern Risk had an opening for a Senior Specialty Underwriter in its Dallas office. (Defs.' App. at 147, 152.) John F. Graham ("Graham"), Senior Vice President at Risk Specialists, was considering offering the position to a younger person in Chicago who was already an underwriter. (Defs.' App. at 147, 153.) Steve Bisbee ("Bisbee"), the Regional Vice President for AIG's Southern Region, suggested that Graham consider Plaintiff for the position. (Defs.' App. at 147.) Bisbee supported Plaintiff for the position, despite the fact that Plaintiff had most recently been in a marketing position, not an underwriting position, because Bisbee believed Plaintiff had the background as an underwriter (from earlier in his career), the experience, and the relationships necessary for the job. (Defs.' App. at 147-48, 152.) Bisbee also mentioned to Graham that there may be some concern that selecting the younger candidate for the position might give the appearance of age discrimination. (Defs.' App. at 147, 153.)
Ultimately, based at least in part on Bisbee's recommendation, Graham decided Plaintiff should be offered the position. (Defs.' App. at 147.) In January 1996, Plaintiff was offered, and he accepted, the position with Risk Specialists. (Defs.' App. at 5.) Plaintiff's supervisor in that job was Bonnie Simms. (Id.)
As an underwriter with Risk Specialists, Plaintiff was expected to solicit business from other wholesale and retail brokers in Texas. (Defs.' App. at 144.) He, like the other underwriters, was also expected to assess risks and make recommendations for the issuance of the policies. (Id.) And, as with the other underwriters, Plaintiff's performance would be measured against the goals set for him by his manager for production and loss ratio ( i.e. the ratio of premium collected to dollars paid out on claims.) (Defs.' App. at 9, 144-45.)
In February 1996, approximately thirty days after Plaintiff accepted his position as Specialty Senior Underwriter, Graham sent Paul Warmingham, Manager of the Property Division of Southern Risk, a memorandum instructing Warmingham to create a "written plan. . . . to review [Plaintiff's performance]. This plan should include time frames and clear measuring points." (Defs.' App. at 149A, 157.) Graham's memo also stated, "You may recall that the initial setup had [Plaintiff] outside of AI Property. Steve [Bisbee's] input regarding possible problems (i.e. age) caused us to reevaluate, thus the Specialty position. Be sure to include Steve [Bisbee] in the loop with your evaluations. In the event we come to a conclusion that a change is needed, we will all need to be on the same page." (Defs.' App. at 149A.) Graham left his position before receiving such a plan from Warmingham. (Defs.' App. at 148.)
According to Bonnie Moss, Warmingham did approach her and ask her to develop a plan to review Plaintiff. (Defs.' App. at 128.) Moss testified in her deposition that Warmingham asked her to "put goals together for [Plaintiff]," which was a typical procedure. (Id.) One of Moss's responsibilities as Property Manager was to develop goals for all the underwriters. (Id.) With respect to whether Warmingham asked Moss to set up a time frame and measuring points, Moss explained that part of her responsibility in developing goals includes ensuring the goals are measurable. (Defs.' App. at 129.)
As part of Moss's job, Moss audited the underwriters' files to ensure that the underwriters were adhering to the company's underwriting guidelines, exercising sound underwriting judgment, and pricing policies properly. (Defs.' App. at 13-14, 122.) Moss conducted these internal employee audits because she was responsible for ensuring that the underwriters in her office passed the external home office audit that was conducted on her office. (Defs.' App. at 20, 122.) Based on these audits, Moss concluded on several occasions that Plaintiff had failed to comply with company policies, that he kept very disorganized files, and that certain important information was missing from his files. (Defs.' App. at 14-26, 49-68, 79-115.) Between February 1997 and October 1997, Plaintiff failed five audits. (Defs.' App. at 26.) As a result, Moss gave Plaintiff an unfavorable rating ("Meets Some Expectations") in his September/October 1997 performance review. (Defs.' App. at 41-48.)
In October 1997, while preparing for a home office audit, Moss discovered while reviewing one of Plaintiff's files, that he had failed to make certain changes to a file that Moss had requested about two months prior. (Defs.' App. at 122.) Moss also realized during her review that Plaintiff had provided coverage to a client for "radioactive contamination, pollution, hazardous waste cleanup, jewels, [and] money," which Moss believed would cause her office to fail the audit. (Defs.' App. at 122.) Moss was troubled by this coverage because (1) the company generally does not insure for radioactive contamination and (2) Plaintiff did not have authority to provide radioactive contaminant coverage to a client. (Defs.' App. at 123.) The only way an underwriter could extend coverage for radioactive contaminant is if the underwriter sought and received approval from Lexington's home office. (Defs.' App. at 123.) There was no such approval in Plaintiff's file. (Defs.' App. at 122-24.)
On October 27, 1997, Moss met with Plaintiff about the file and Plaintiff explained to her that he had received authority to extend the coverage from Ivy Klavins, a Lexington Vice President out of the home office. (Defs.' App. at 122.) Due to the seriousness of the situation, and because Plaintiff could not locate Klavins' written authority in the file, Moss told Plaintiff she was revoking Plaintiff's underwriting authority, which prevented him from quoting or binding any insurance policy without her approval. (Defs.' App. at 33, 122.) After meeting with Plaintiff, Moss contacted Klavins to ask whether he had given Plaintiff approval. (Defs.' App. at 33, 122.) Klavins did not remember doing so, but said he would check his file. (Defs.' App. at 33, 122.)
On November 11, 1997, a few weeks after his underwriting authority had been revoked, Plaintiff submitted to Moss for her review a draft insurance quote for Angleton Danbury Hospital. (Defs.' App. at 34.) According to the Angleton Danbury Hospital quote sheet Plaintiff submitted for Moss's approval, Plaintiff proposed a quote in the amount of $17,226.00. (Defs.' App. at 37, 118.) Plaintiff submitted the proposed quote sheet and the Angleton Danbury Hospital file to Moss so Moss could review the information when deciding whether to approve Plaintiff's proposed quote. (Defs.' App. at 34.)
Plaintiff testified in his deposition that subsequent to that date, on or about November 24 or 25, 1997, the insurance broker called Plaintiff and said he needed the quote right away. (Defs.' App. at 34, 38, 127-28.) In response, Plaintiff contends that he "let the phone down and said `Anybody know where [the] Angleton Danbury [file] is . . . The broker's on the line looking for the quote.'" (Defs.' App. at 35.) Plaintiff stated that Moss responded by answering "`I have it in my office'" and then she gave Plaintiff the file. (Defs.' App. at 35.) Plaintiff then provided the broker with a quote of $18,266.00, which effectively bound the policy at that amount. (Defs.' App. at 35, 126.)
According to Bonnie Moss, this exchange never occurred and she was not even in the office on the day the quote was bound. (Defs.' App. at 127, 128.)
According to Defendants, Moss had never given Plaintiff the authority to quote or bind the Angleton Danbury Hospital policy. (Defs.' App. at 128.) In fact, Moss contends that she was still reviewing the file at the time Plaintiff made the quote. (Defs.' App. at 125.) Moreover, Moss testified that she did not give Plaintiff approval to offer a quote of $18,266.00. (Defs.' App. at 126.) In fact, the quote sheet that was returned to Plaintiff by Moss had the original proposed amount of $17,226.00 crossed out and "$22,220" circled next to it. (Defs.' App. at 118.)
Plaintiff explained that when Moss gave the file to Plaintiff, Plaintiff interpreted that to mean "she was finished with it." (Defs.' App. at 37.) Plaintiff admits that he quoted and bound the policy at $18,266.00 even though the "22,000" figure had been handwritten by Moss on the quote sheet. (Id.) Plaintiff explains that he did this "because that was my figures and she didn't say . . . anything about it." (Id.) Plaintiff explains that he believed Moss had written the "22,000" figure on the quote sheet because "I think she would want a higher premium on it . . ." (Id.) However, Plaintiff explains that he quoted it at the lower number despite this instruction because "she didn't say `Quote 22.'" (Id. (emphasis added).) Plaintiff further explains that "I assumed that [$22,000.00] was a range she was looking for. And that was too high because the broker already had a lesser quote than I had, and he was going to give it to me." (Id.)
After Moss learned that Plaintiff had bound the Angleton Danbury Hospital in violation of her instruction not to quote or bind a policy without her approval, Moss contacted Darcy Rosenfeld in the company's Human Resources division. (Defs.' App. at 130.) According to Rosenfeld's notes, Moss complained to Rosenfeld on November 25, 1997 that Plaintiff had bound the Angleton Danbury Hospital policy without her approval, even though his underwriting authority had been revoked due to several audit failures. (Defs.' App. at 140.)
On December 1, 1997, Moss and Rosenfeld met with Plaintiff, who insisted that Moss had "verbally approved" the policy amount. (Id.) Plaintiff believed that Pam Lynch, another underwriter, had heard Moss give her approval. (Id.) When Rosenfeld asked Lynch, Lynch said she "never heard one way or another if it was approved or not." (Id.) Rosenfeld told Plaintiff to go home for the remainder of the day and that she would call him. Plaintiff later called Rosenfeld prior to his departure for the day and said "he had a letter that Jack Graham wrote to Paul Warmingham referencing his age and setting difficult objectives to meet." (Defs.' App. at 141.) The following day, Rosenfeld asked Plaintiff to come to her office to continue their conversation. (Defs.' App. at 38, 141.) Plaintiff refused, explaining that he had already spoken with an attorney and was not going to say anything further. (Defs.' App. at 38-39, 141.) Eventually, Plaintiff did go in to the company to speak with Rosenfeld who explained that Plaintiff was being terminated. (Defs.' App. at 39.)
DISCUSSION
I. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate in any case where the critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant. Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994). However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold. Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The mere existence of some factual dispute will not defeat a motion for summary judgment. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Only disputes over facts that might affect the outcome of the suit under the governing law will preclude summary judgment. Id. Moreover, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. Little, 37 F.3d at 1075. Therefore, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-323.
B. Legal Standard Under the ADEA.
The ADEA provides that "it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1) (2001). Claims brought under the ADEA are subject to the same analytical framework as claims of employment discrimination brought under Title VII, set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and elaborated further upon in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996):Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993). In addition, this same analysis is used for Plaintiff's claims under the TCHRA since Texas courts, when deciding such claims, look to the analogous provisions of the ADEA and Title VII and how federal courts have interpreted these federal acts. See Stanley Stores Inc. v. Chavana, 909 S.W.3d 554, 562 (Tex.App.-Corpus Christi 1995, writ denied).
When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiffs age must have "actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id. Thus, the plaintiff must prove intentional discrimination either through direct or indirect evidence of discrimination. See Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden-shifting framework. See Russell v. McKinney Hosp. Venture, 235 F.3d219, 222(5th Cir. 2000).
In order to create an inference of discrimination, the plaintiff must first establish a prima facie case of discrimination. See id. (citingReeves, 530 U.S. at 142). Such a prima facie case is established if the plaintiff provides evidence that: (1) he is member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action, such as a discharge; and (4) after his discharge, he was replaced with a person who is not a member of the protected class.Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000); see also Meinecke v. HR Block, 66 F.3d 77, 83 (5th Cir. 1995); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-313 (1996). In an age discrimination case, the plaintiff may alternatively satisfy the fourth element by showing that "he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age." Brown, 207 F.3d at 781 (citingBodenheimer, 5 F.3d at 957).
If the plaintiff successfully establishes a prima facie case, he has raised a rebuttable presumption of age discrimination and the employer must then respond with a legitimate, non-discriminatory reason for its decision. See Russell, 235 F.3d at 222. This burden on the employer is only one of production, and not persuasion, involving no credibility assessments. See id. (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-256 (1981). Thus, if the employer carries its burden, "the mandatory inference of discrimination created by the plaintiff's prima facie case drops out of the picture and the fact finder must decide the ultimate question whether the plaintiff has proven intentional discrimination." Id. (citing Hicks, 509 U.S. at 511-512.)
Since the ultimate burden of persuasion remains at all times with the plaintiff, the Supreme Court has stated that in attempting to satisfy this burden, the plaintiff — once the employer produces sufficient evidence to support a non-discriminatory explanation for its decision — must be afforded the opportunity to establish that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. See Reeves, 530 U.S. at 143. The Plaintiff may attempt to establish that he was the victim of intentional discrimination by `"showing that the employer's proffered explanation is unworthy of credence.'" Id. Consequently, the Supreme Court has found that a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated Id. at 148; Blow, v. City of San Antonio, 236 F.3d 293, 298 (5th Cir. 2001).
However, this is not to say that a showing of pretext alone automatically would entitle an employee to a judgment as a matter of law. Reeves, 530 U.S. at 148. That is, there may be instances where the employer would be entitled to judgment if the record conclusively revealed some other nondiscriminatory reason for its decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. Id. Regardless, at the summary judgment stage, Plaintiff need only raise a genuine issue of material fact. See Khanna v. Park Place Motorcars of Houston. Ltd., NO. CIV.A. 3:99-CV-0135, 2000 WL 1801850 *2 (N.D. Tex. Dec. 06, 2000) (Fitzwater, J.).
C. Application of Law to the Facts.
1. Plaintiffs Prima Facie Case.
In order to withstand a motion for summary judgment in an age discrimination case, the Plaintiff's first task is to establish a prima facie case of age discrimination. Because Defendants do not dispute that Plaintiff has satisfied the four elements of his prima facie case of age discrimination, the Court will presume that (1) Plaintiff is member of the protected class; (2) Plaintiff was qualified for the position he held; (3) Plaintiff was discharged; and (4) after Plaintiff's discharge, Plaintiff was replaced with a person who was not a member of the protected class.
2. Defendants' Non-Discriminatory Reason for Plaintiff's Termination.
Having found that Plaintiff has met his burden for a prima facie case of age discrimination, the burden of production now shifts to Defendants to articulate a legitimate, non-discriminatory reason for Plaintiff's termination. Defendants contend that Plaintiff was terminated because he quoted and bound an insurance policy after his underwriting authority had been revoked and without his manager's consent. (Defs.' Mot. for Summ. J. at 10.) Plaintiff concedes that Defendants have met their burden of articulating a legitimate non-discriminatory reason for Plaintiff's termination and of producing evidence of that stated reason. (Pl's Resp. at 13.)
3. Evidence of Pretext.
Because Defendant has articulated a non-discriminatory justifications for its employment decision, Plaintiff must now raise a genuine issue of fact showing that the reason is a pretext for a discriminatory motive.See Guthrie v. Tifco Indus., 941 F.2d 374, 378 (5th Cir. 1991). This may be done directly, by showing that a discriminatory reason more likely motivated the action taken by the employer, or indirectly, by showing that the employer's reason is not believable. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
a) Indirect Evidence of Pretext.
In his briefing, Plaintiff attempts to establish that Defendants' reason for terminating Plaintiff is not credible. Plaintiff argues that summary judgment is not proper because "[a] genuine issue of material fact exists as to whether Plaintiff had approval to quote the policy, which he was fired for quoting." (PL's Resp. at 15.) Essentially, Plaintiff contends that Moss's explanation for Plaintiff's termination — that Plaintiff bound the policy without Moss's approval — must be a pretext for discrimination because she should have known Plaintiff was going to quote the policy at $18,266.00 after the handed him the file. Plaintiff further contends that there is a fact issue as to whether written authorization was, in fact, required. (Pl's Resp. at 15.)
In her deposition, Moss states that the "only reason I decided to terminate [Plaintiff] was . . . following the revocation of his underwriting authority . . . I learned that [Plaintiff] had actually bound a policy that I had not completed reviewing (the Angleton Danbury Hospital policy)." (Defs.' App. at 125.) Therefore, Plaintiff's discussion concerning whether Plaintiff had home office approval to issue the radioactive coverages on the earlier policy is irrelevant to the issue of whether Plaintiff bound the Angleton-Danbury Hospital policy without Moss's approval. (See Pl.'s Resp. at 14.)
Although the thrust of Plaintiff's argument is based on whether Moss gave Plaintiff permission to bind the policy, this attack misses the mark. The relevant inquiry is whether Moss believed in good faith that Plaintiff did not have permission and whether the discharge decision was based on that belief. See Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir. 2001) ("merely disputing an employer's assessment of a plaintiff's work performance will not necessarily support an inference of pretext."); Shackelford v. Deloitte Touche, 190 F.3d 398, 408-09 (5th Cir. 1999) ("The issue is whether [the defendant's perception of [the plaintiff's] performance, accurate or not, was the real reason for her termination."); Guthrie, 941 F.2d at 378; Ellison v. Darden Restaurants. Inc., 52 F. Supp.2d 747, 752 (S.D. Miss. 1999). "A mere refutation of the employer's legitimate non-discriminatory reason" is insufficient to create a genuine issue of material fact. See White v. Bank of America Corp., Civ. A. No. 3:99-CV-2329-G, 2000 WL 1664162, at *5 (Nov. 2, 2000) (quoting Moore v. Eli Lilly Co., 990 F.2d 812, 815 (5th Cir. 1993).
In this case, Plaintiff has failed to present sufficient evidence that Moss's reason for discharging Plaintiff — namely that it was based on the good faith belief of Moss that Plaintiff had bound a policy without Moss's permission — was pretextual. Plaintiff contends that he interpreted Moss's return of the file as tacit permission to quote and bind the Angleton Danbury Hospital policy, however, Plaintiff has presented no evidence to support the position that Moss did not have a good faith belief that she did not give him permission by merely handing Plaintiff the file.
To carry his burden, Plaintiff "must produce substantial evidence of pretext." Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400 402-03 (5th Cir. 2001). "`Evidence that the proffered reason is unworthy of credence must be enough to support a reasonable inference that the proffered reason is false; a mere shadow of a doubt is insufficient." Id. Plaintiff admits in his deposition that "I thought it was the Angleton Danbury file that I was being fired for." (Def.'s App. at 38.) When asked if he believed that Moss was discriminating against him for age, Plaintiff responded that "I don't know what [Moss] was thinking." (Def.'s App. at 38.) Although Plaintiff suggests in his deposition that he believes he was terminated based on age discrimination as part of a larger conspiracy, Plaintiff admits that he does not have any "facts or information to believe that anybody other than [Moss] was involved in the decision to terminate [Plaintiff]." (Def.'s App. at 38.) Plaintiff offers nothing more than his subjective belief, unsupported by any evidence, that his termination was discriminatory. Such unsupported and conclusory allegations are insufficient to overcome a properly supported summary judgment motion. See Auguster, 249 F.3d at 403; Ellison v. Darden Restaurants. Inc., 52 F. Supp.2d 747, 753 (S.D. Miss. 1999).
b) Direct Evidence of Pretext.
In his attempt to demonstrate that a discriminatory reason more likely motivated the action taken by the employer, Plaintiff relies on the memorandum from Graham, Senior Vice President at Risk Specialists, to Warmingham, Manager of the Property Division of Southern Risk, instructing Warmingham to create a "written plan. . . . to review [Plaintiff's performance]." (See Defs.' App. at 149 A, 157.) As stated earlier, the memorandum directed Warmingham to "include time frames and clear measuring points." (Defs.' App. at 149A, 157.) Graham's memo also stated, "You may recall that the initial setup had [Plaintiff] outside of AI Property. Steve [Bisbee's] input regarding possible problems (i.e. age) caused us to reevaluate, thus the Specialty position. Be sure to include Steve [Bisbee] in the loop with your evaluations. In the event we come to a conclusion that a change is needed, we will all need to be on the same page." (Defs.' App. at 149A.)
Age-related remarks may serve as sufficient evidence of age discrimination if the offered comments are: (1) age related; (2) proximate in time to the termination; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996). Although there is no dispute that the statements made in the memorandum are age related, Plaintiff has failed to satisfy the requirement that the comments were made proximate in time to the termination. Graham's memorandum was issued on February 23, 1996, however, Plaintiff was terminated in December 1997, nearly two years later. (See Pl's App. at 94; Defs.' App. at 39, 140.)
Defendants contend that Graham had no authority to fire Plaintiff at the time the decision was made, because Graham did not even work for Risk Specialists in 1997. (Defs.' Mot. for Summ. J. at 12.) As of mid-1996, Graham no longer was employed by Risk Specialists; he was employed by Lexington Insurance Company as Vice President of Property Underwriting. (Defs.' App. at 143.) The evidence before the Court is unclear as to whether Graham, as a Lexington employee, would have had any authority over the decision to terminate Plaintiff. (See Pl's App. at 81.)
Finally, Plaintiff has not demonstrated that the statements contained in the Graham memorandum are related to the employment decision at issue. The language contained in the Graham memorandum suggests that Plaintiff was initially hired, in part, because of his age. (Pl's App. at 94 ("Steve [Bisbee's] input regarding possible problems (i.e. age) caused us to reevaluate, thus the Specialty position.").) Other than that, there is no age-related discussion concerning Plaintiff's termination, nor is there any other age-related language in the memorandum. (See id.)
Plaintiff contends that "[o]ther underwriters wrote coverages requiring home office approval, without obtaining such approval in writing or until after coverage was bound." (Pl's Resp. at 15.) Plaintiff also contends that "other underwriters, including a substantially younger underwriter, supervised by Moss, exceeded their underwriting authority, without consequence." (Pl's App. at 15.) However, these statements are of no evidentiary consequence because Plaintiff was not terminated for writing coverage without home office approval/exceeding his underwriting authority. (See Defs.' App. at 125.)
Because Plaintiff has failed to raise a genuine issue of fact showing that the Defendants' reason for terminating Plaintiff is a pretext for discrimination, Defendants' Motion for Summary Judgment is GRANTED with respect to Plaintiff's discrimination claims under the ADEA.
Moreover, because Plaintiff has failed to withstand summary judgment, the issue of whether Defendants constitute a single integrated employer is moot.
D. Plaintiff's TCHRA Claim.
Because claims of age discrimination under the ADEA and claims of age discrimination under the TCHRA are evaluated under the same analytical framework, the analysis used throughout this opinion is equally applicable to Plaintiff's TCHRA claim. See Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001). Therefore, Defendants' Motion for Summary Judgment is GRANTED with respect to Plaintiff's discrimination claims under the TCHRA.
E. Plaintiff's Conspiracy Claim.
Conspiracy is considered a derivative tort because the defendant's liability depends on its participation in some underlying tort for which the plaintiff seeks to hold the defendant liable. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Therefore, to prevail on a civil conspiracy claim, the plaintiff must show that the defendant was liable for some underlying tort. See Trammell Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 635 (Tex. 1997). Because Plaintiff has failed to withstand summary judgment on his underlying tort claims for age discrimination under the ADEA and the TCHRA, Plaintiff's conspiracy claim must necessarily fail. Therefore, Defendants' Motion for Summary Judgment is GRANTED with respect to Plaintiff's claim for civil conspiracy.
II. DEFENDANTS' OBJECTIONS TO PLAINTIFF'S DECLARATION.
Defendants object to paragraphs 11 and 13 of Plaintiff's Declaration because, Defendants contend, those statements directly contradict Plaintiff's prior deposition testimony. (Defs.' Objections at 1-3.) Even if the Court was to consider the testimony presented by Plaintiff in his declaration, the outcome of this summary judgment motion would not be affected. Therefore, the Court hereby DENIES Defendants' Objections to Plaintiff's Declaration as MOOT.
III. PLAINTIFF'S OBJECTIONS TO
DEFENDANTS' SUMMARY JUDGMENT EVIDENCE.
Plaintiff objects to certain documents contained in Defendants' appendix because, Plaintiff contends, those documents have not been properly authenticated and/or are hearsay and violative of the Federal Rules of Evidence. (PL's Objections at 1-2.) Even if the Court was to strike and refuse to consider the documents opposed by Plaintiff, the outcome of this summary judgment motion would not be affected. Therefore, the Court hereby DENIES Plaintiff's Objections to Defendants' Summary Judgment Evidence as MOOT.
IV. PLAINTIFF'S REQUEST FOR HEARING ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT.
In accordance with Local Rule 7.1(g), the Court is not inclined to conduct a hearing on any of the motions currently pending before the Court. Therefore, Plaintiff's Request for Hearing on Defendants' Motion for Summary Judgment is hereby DENIED.
Therefore, for the reasons stated herein, Defendants' Motion for Summary Judgment is hereby GRANTED; Plaintiff's Request for Hearing on Defendants' Motion for Summary Judgment is hereby DENIED; Plaintiff's Objections to Defendants' Summary Judgment Evidence is hereby DENIED as MOOT; and Defendants' Objections to Plaintiff's Declaration is hereby DENIED as MOOT.
SO ORDERED.